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Brief For Amici Curiae Andrea K. Bjorklund, Diane Desierto, And Franco Ferrari In Support Of Petitioners-Appllants And Reversal, Diane Desierto, Anread K. Bjorklund, Franco Ferrari

Court Briefs

2021 WL 2223764 (C.A.D.C.) (Appellate Brief)

United States Court of Appeals, District of Columbia Circuit.

HULLEY ENTERPRISES LTD.; Yukos Universal Ltd.; Veteran Petroleum Ltd., Petitioners-Appellants, v. RUSSIAN FEDERATION, Respondent-Appellee.

No. 20-7113.

June 1, 2021.

On appeal from the United States District Court for the District of Columbia, No. 14-1996 (BAH)

Brief for Amici Curiae Andrea K. Bjorklund, Diane Desierto, and Franco Ferrari in Support of Petitioners-Appellants and Reversal

James E. Berger, Charlene C. Sun, King & Spalding LLP, 1185 Avenue of the Americas, New York, NY 10036, Phone: 212-556-2202, Fax: 212-556-2222, Email: jberger@kslaw.com, csun@kslaw.com, for Amici Curiae.

The amici curiae …

Brief For Council Of Islamic Schools In North America, Partnership For Inner-City Education, And Union Of Orthodox Jewish Congregations Of America As Amici Curiae In Support Of Petitioners, Nicole Stelle Garnett, Richard W. Garnett, Michael H. Mcginley

Court Briefs

DAVID AND AMY CARSON, as Parents and next Friends of O.C., and TROY AND ANGELA NELSON, as Parents and next Friends of A.N. and R.N., Petitioners

v.

A. PENDER MAKIN, in Her Official Capacity as Commissioner of the Maine Department of Education, Respondent.

On Petition for Writ of Certiorari to the United States Court of Appeals for the First Circuit

BRIEF FOR COUNCIL OF ISLAMIC SCHOOLS IN NORTH AMERICA, PARTNERSHIP FOR INNER-CITY EDUCATION, AND UNION OF ORTHODOX JEWISH CONGREGATIONS OF AMERICA AS AMICI CURIAE IN SUPPORT OF PETITIONERS

No. 20-1088

March 11, 2021

Amici curiae operate, represent, and support elementary …

Brief Of Amici Curiae Intellectual Property Law Professors, Mark Mckenna, Rebecca Tushnet, Yvette Joy Liebesman, John A. Conway

Court Briefs

Untethered to a sufficient public policy interest, right of publicity claims have exploded nationwide. Plaintiffs have asserted claims against inspirational plaques featuring civil rights icons, Rosa and Raymond Parks Inst. for Self Dev. v. Target Corp., 812 F.3d 824 (11th Cir. 2016),artwork commemorating significant events, Moore v. Weinstein Co., LLC, 545 Fed. App’x. 405 , 407 (6th Cir. 2013); ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915 (6th Cir. 2003), Wikipedia edits that truthfully connected an astronaut with the watch he wore on his Moon walk, Scott v. Citizen Watch Co. of Am., Inc., 17-CV-00436-NC, 2018 WL 1626773 (N.D. …

Brief Of Amici Curiae On Behalf Of Intellectual Property Professors In Support Of Appellant And In Support Of Reversal, Mark Mckenna, Rebecca Tushnet

Court Briefs

ASTM’s fundamental complaint is about unauthorized use of its intangible content—the standards for which it claims copyright ownership. Dastar unambiguously holds, however, that only confusion regarding the source of physical goods is actionable under the Lanham Act; confusion regarding the authorship of the standards or their authorization is not actionable. ASTM cannot avoid Dastar just because Public Resource creates digital copies of those standards. Consumers encounter the ASTM marks only as part of the standards, into which ATSM chose to embed the marks. As a result, any “confusion” could only be the result of the content itself. Dastar teaches that …

Brief Of Amici Curiae Intellectual Property Law Professors In Favor Of Judgement As A Matter Of Law, Mark Mckenna, Rebecca Tushnet, John A. Conway

Court Briefs

Plaintiff’s false designation of origin and false endorsement claims, such as they are, rest on the assertion that defendants falsely represented themselves as the origin of intellectual property on which the Oculus Rift is based. Those claims are barred by Dastar v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), which holds that only confusion regarding the origin of physical goods is actionable under the Lanham Act.

Brief Of Amici Curiae Intellectual Property Law Professors, Mark Mckenna, Rebecca Tushnet

Court Briefs

The District Court correctly determined that the challenged speech of Dr. Steven Novella was not commercial speech for purposes of applying the Lanham Act. Appellant’s argument to the contrary conflates “seeking profit” with “commercial speech.”

Brief Of The Catholic University Of America School Of Canon Law, The Lutheran Church-Missouri Synod, The Queens Federation Of Churches, And The Serbian Orthodox Church In North And South America, As Amici Curiae In Support Of Petitioners, Richard W. Garnett, David H. Hyams

Court Briefs

This brief addresses the importance of the principle of church autonomy and the protections provided by the First and Fourteenth Amendments and this Court's precedents regarding religious denominations' internal mandatory dispute-resolution procedures.

Brief Amici Curiae Of 37 Intellectual Property Professors In Support Of Petition For Certiorari, Mark A. Lemley, Mark Mckenna

Court Briefs

This case presents two issues that justify this Court’s review.

First, the Federal Circuit upheld a finding of design patent infringement based on the very same Apple designs that it found functional under trade dress law. Such a counterintuitive outcome is possible because the Federal Circuit has constructed a highly constrained definition of functionality in design patent law, which is at odds with this Court’s precedent in both utility patent and trade dress cases. Coupled with its recent re-interpretation of the design patent infringement standard, the Federal Circuit’s approach to functionality makes it quite likely that defendants will be held …

Brief Of Amici Curiae On Behalf Of Intellectual Property Professors In Support Of Petitioner, Mark Mckenna, Mark A. Lemley, Christopher Jon Sprigman, Rebecca Tushnett

Court Briefs

In its 1976 revision of the Copyright Act, Congress decided to separate applied art from industrial design, admitting the former to copyright and excluding the latter. It drew this distinction precisely because it intended to differentiate copyright from design and utility patent. Congress recognized as applied art only those aesthetic features of a useful article that could be “separated” from that useful article rather than being integrated into the article.

The correct test of separability therefore considers conceptual separability to be nothing more than a coda to physical separability, and asks only whether the claimed design could be removed from …

Brief Of Amici Curiae Intellectual Property Law Professors In Support Of Appellees, Mark Mckenna

Court Briefs

The District Court correctly determined that Phoenix failed to state a trademark claim because Basket Case’s activities cannot have caused any relevant confusion.1 Phoenix’s fundamental complaint is about unauthorized use of its intangible content—karaoke tracks. Under Dastar v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), however, only confusion regarding the source of physical goods is actionable under the Lanham Act; confusion regarding the source of the karaoke tracks or their authorization is not actionable. Phoenix cannot avoid Dastar just because Basket Case creates digital copies of those tracks, as Basket Case does not sell digital files or …

Brief Of Amici Curiae Constitutional Law Scholars In Support Of Petitioners, Richard W. Garnett, Ryan A. Shores, William J. Haun

Court Briefs

“[I]n a complex society and an era of pervasive governmental regulation, defining the proper realm for free exercise can be difficult.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2781, 2785 (2014) (Kennedy, J., concurring). The Religious Freedom Restoration Act (“RFRA”)2 addresses that difficulty by harmonizing religious freedom and the interests of third parties. RFRA will not exempt free exercise from a law’s command simply because the law substantially burdens religion—nor will it deny a religious exemption simply because the exemption would affect a third party.

Brief Of Law Professors Bruce P. Frohnen, Robert P. George, Alan J. Meese, Michael P. Moreland, Nathan B. Oman, Michael Stokes Paulsen, Rodney K. Smith, Steven D. Smith, And O. Carter Snead As Amici Curiae In Support Of Petitioners, O. Carter Snead, Robert P. George, Alan J. Meese, Michael P. Moreland, Nathan B. Oman, Michael` Stokes Paulsen`, Rodney K. Smith, Steven D. Smith

Court Briefs

Suppose a federal law required government officials to enter a Catholic church and use church property to distribute contraceptives and abortifacients over church’s objection. Such a law would surely burden the church’s religion, even if the government paid for the objectionable medications and compensated the church for the use of its resources. By commandeering church property, such a law would force the church to be complicit in activity to which it has serious religious objections

Brief Of Amici Curiae Law Professors In Support Of Defendant-Appellee National Football League, Mark Mckenna, Rebecca Tushnet

Court Briefs

Based on the undisputed facts, the NFL’s films in this case are noncommercial speech; their profit-seeking and brand-building nature are standard features of noncommercial speech. Truthful, nondefamatory noncommercial speech deserves full First Amendment protection, and there is no justification for allowing Appellants to control speech about them in this case.

Separately, Appellants’ right of publicity claims are preempted by the Copyright Act, which allows owners of copyrighted works to exploit those works by reproduction, distribution, creation of derivative works, and public performance—precisely the conduct at issue here.

Finally, Appellants’ trademark claims are also precluded by the First Amendment, given that …

Supplemental Brief Of Professors Anthony J. Bellia Jr. And Bradford R. Clark As Amici Curiae In Support Of Respondents, Anthony J. Bellia, Bradford R. Clark

Court Briefs

From the Summary of Argument This case squarely presents the question whether ATS jurisdiction extends to claims solely between aliens. The plaintiffs and defendants are all aliens; no U.S. citizen or corporation has ever been a party to the case. Because the issue of party alignment under the ATS is a question of subject matter jurisdiction, the parties cannot waive it, and either the Court or a party may raise it anytime. And the question whether the ATS covers suits between aliens is likely to recur; indeed, the issue is squarely presented by the Ninth Circuit's recent ruling in Sarei …

Brief Of Amici Curiae Intellectual Property Law Professors In Support Of Appellant/Cross-Appellee New Life Art, Inc. And Daniel A. Moore And Affirmance In Part, Mark Mckenna, Michael T. Sansbury

Court Briefs

The District Court properly held that New Life Art’s (“New Life”) creative works do not infringe the University of Alabama’s (“the University”) rights in the trade dress of its football uniforms, including the their crimson and white colors. First, New Life’s realistic depiction of the University’s football games is not likely to confuse consumers about the source of New Life’s goods, or as to the University’s sponsorship of or affiliation with those goods. Confusion is actionable under the Lanham Act only when it relates to these types of source relationships, and not when consumers merely recognize the plaintiff’s mark. Second, …