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Gatorade seeks to eliminate “Hatorade”

Popular sports drink Gatorade has filed a lawsuit against the makers of a bodybuilding supplement named “Haterade,” accusing of infringing its marks and “harmfully associating” the sports drink with the “colloquial, derogatory term “hater.”

Stokely-Van Camp Inc. which owns the trademark for Gatorade accuses Active Sports Distribution and DuraCap Labs LLC for ignoring multiple attempts to resolve the matter.  Hence, the lawsuit was filed on September 17th in federal court in Illinois.

The complaint alleges that the workout supplement company, which makes supplements under the name “Haterade,” dilutes the Gatorade marks by blurring and by tarnishment, by making customers think of a “fictional or metaphorical beverage consumed by hateful, jealous or angry people.”

It will be an interesting case to follow.  In most instances, the claim that a mark tarnishes another relates to issues where the trademark owners’ reputation is hindered.  This usually involves a use of a mark which links it to products that are of poor quality or portrayed as distasteful.  The best example of this is taking a trademark name and using it for some form of adult content.

On the other hand, a claim under blurring occurs when the third party’s use of the trademark decreases the likelihood that the mark will serve as a unique identifier of the owner’s product and hinder the selling power of the owner’s mark.

In either case, the only relief that the plaintiff may make is for injunctive relief In this case that would mean that the makers of Haterade must cease selling its product.

(Via Law360)

Washington state addresses common grantor doctrine

A recent Washington State appellate court affirmed a trial court decision which found in favor of a property owner arguing that a common boundary was the real designation between adjacent owners of land as opposed to a legal description.

The common grantor doctrine protects an original grantee acquiring property in “good faith reliance on the boundary description provided by the common grantor who originally owned both lots in their entirety” and thus had power to determine the location of the boundary. Even without a formal agreement, the boundary binds grantees if the land was sold and purchased with reference to the line and the parties agreed about the identical tract of land transferred by the sale.

The case stems from a property owner that sold two adjacent tracts of land at different times. A fence separated the two parcels of land. Both purchasers of the property bought the land and operated under the assumption that the fence was the boundary between parties. It was not until a year after a survey commissioned by one of the property owners (and three years after the actual purchase of the lot) did the property owner claim a dispute with respect to the property boundary. The court asserted that the parties operated under the assumption that the fence was the boundary between the parties and it was clear that the fence provided notice to subsequent purchasers.

The opinion is notable as it begins with an excerpt from a poem by Robert Frost.

I assist in real estate matters. If you have any questions please do not hesitate to contact me.

Washington State Court Clarifies Implied Warranty of Habitability

A Washington state court clarified the rules related to the cause of action of implied warranty of habitability. The claim focuses on protecting "the first occupants of residential property against the risk of fundamental defects in the structure of a home."  Washington courts apply this claim to vendor-builders which relate to "a person regularly engaged in building, so that the sale is commercial rather than casual or personal in nature."  This implies that the builders must be professionals.

In Montgomery v. Engelhard, Division III of the Washington State Court of Appeals had to determine whether a real estate broker that claimed to not be a commercial builder, could be held liable for alleged construction defects and violating an implied warranty of habitability.  The court held he was not.  The opinion noted that the defendant "did not have a builder's license, was not an experienced developer, and was not engaged in building."  Therefore, the claim did not apply.  It should be noted that there were other causes of action (e.g. breach of contract) that remained in the lawsuit.

Although the court did not reach the issue, the court opined that the claim applies only to those homes that are built for sale and not as personal occupancy or if the vendor contemplated an eventual sale.  In this case, the defendant lived in the home prior to putting up the home for sale.  Thus, the court sided with the broker.

For those that may look to build homes in seeking to "flip" them or for those that may seek to purchase homes from flippers this case seems to clarify at least one of the many claims that one might see in real property law.

Washington state slaps down Anti-SLAPP statute

State Supreme Court finds statute violates Washington Constitution

Earlier this year, we wrote about a case involving Washington state’s Anti-SLAPP statute. SLAPP standing for Strategic Lawsuit Against Public Participation. Now, the Washington state Supreme Court has ruled that it is unconstitutional.

This past May, in Davis v. Cox, the state Supreme Court held the statute unconstitutional. The state statute allowed for defendants in libel and other free-speech related cases to dismiss a lawsuit filed against them unless the person filing the lawsuit could show a probability of prevailing on the claim through “clear and convincing evidence.” While the state Supreme Court in the Davis case acknowledged that “frivolous” claims do not warrant a jury trial, the Court determined that the trial court judge’s determination of the merits invades the right to a civil jury trial.

The case strikes down a statute, patterned after the California law, which aided protections against those that spoke out about issues of public concern from litigation that would effectively mute their right. This article breaks down the reasons why losing this law hurts. If you would like more information, please do not hesitate to contact me.

Old sitcom, new decision regarding Fair Use

In an interesting opinion which may have many of us reminisce about our childhood TV habits, a federal judge in New York ruled that a Broadway play, “3C,” did not infringe on the copyright of the famed TV sitcom “Three’s Company.” The ruling noted that the play was a “drastic departure” from the TV show.

While it was clear the play was based on the ABC sitcom featuring John Ritter as a heterosexual male disguising himself as gay in order to room with two women. The play, which appeared to be a dark comedy per the excerpts in the court opinion, ended a two-month run off-Broadway to tempered reviews.

The Court determined that the play was a “highly transformative parody of the television series.” The opinion reflects the ongoing struggle with the concept of “Fair Use” in copyright law. Fair Use is an exception to use a copyrighted work of one with an exclusive right. The doctrine has been widely criticized by scholars for its “undisciplined” and “unwieldy” application by courts. We are not saying that the 3C ruling was undisciplined or unwieldy, but it reflects the broad interpretation of courts.