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September 2018
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Ninth Circuit Stops Monkeying Around And Denies En Banc Review Of The Monkey Selfie Case

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Whatever will we do without the Monkey Selfie case rearing its not-actually-copyrighted head every few months? We might finally get to find out, now that the Ninth Circuit has declined to rehear the appeal en banc. This denial now makes clear that monkeys lack standing to sue for copyright, at least within the Ninth Circuit. Someday (hopefully not soon) we may find out what other Circuits have to say about primate copyrights, but for now we can finally be confident that they lack standing to sue over them here.Provided that no cert petition is granted, of course. And given that this is a case that has thus far steadfastly refused to end, it is way too soon to be confident that this is truly the last we've heard from Naruto or any of his alleged next friends. We should at least know whether a cert petition's been filed in about three months or so, though (see Rule 13), so stay tuned...

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Railtown Brewing Sues Railbird Taphouse Over Trademark Concerns

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Another day, another questionable trademark dispute in the craft brewing industry. As we've discussed previously, the craft beer industry is undergoing an insane growth-spurt these past few years, with new breweries popping up all across the country. At the same time, the tradition of creatively naming breweries and brews is coming up against an erosion of the fraternal nature of the industry. Where once there was a sense of community among brewers that kept all but the most clear-cut trademark concerns at bay, the industry has since been inundated with trademark disputes between breweries.The trend has continued to the present, with Railtown Brewing deciding to sue a soon-to-be-opened restaurant and brewery to be called Railbird Taphouse and Brewery.

Railtown Brewing Co. alleges in the case that Railbird Taphouse and Brewery’s name has already led to confusion in the marketplace, and “is likely to continue to confuse, mislead and deceive consumers,” according to documents filed today in the U.S. District Court for the Western District of Michigan.Justin Buiter, co-founder of Railtown Brewing, told MiBiz the federal trademark lawsuit came about after “numerous” instances of consumers confusing the two companies, and after earlier attempts broke down to come to agreement with the company’s owners.
It will be interesting to learn exactly what these real life examples of confusion Railtown is referring to since, again, Railbird Taphouse hasn't even opened its doors yet. I imagine that perhaps they've gotten a couple of calls wondering if Railbird was going to be a new establishment of Railtown's. That's pure speculation but, even if that's the case, it's hard to see how such confusion in the marketplace would exist once the establishment opens to the public. None of the rest of the trade dress is similar across the brands and, as Railbird Taphouse has noted publicly, lots of breweries use "rail" in their branding and the taphouse's name is an homage to an old establishment that once resided where it will be placed.
In a response to a cease and desist letter from Railtown, Railbird’s attorney called the claims of trademark infringement “unfounded” and “unsupported,” noting many companies have trademarked the word “rail” in connection with beer. In the response letter, Railbird also noted that its name serves as “an homage to the former hotel that specialized in chicken dinners for decades” at the site of the proposed brewpub.
So how real is the potential for confusion in any of this? At first look, I would say very minimal, even taking into account that the two companies will exist some 10 miles away from one another. There's simply enough difference in the branding to make each business distinct once they're both operating. If Railtown really wants to claim that it knows of actual confusion that has occurred, it had better bring the goods at trial. Railtown is also alleging that Railbird misrepresented its use of its own name in commerce, too, though that seems more like piling on than an actual legal concern.Meanwhile, I'll remind you yet again that this is a dispute that would simply not have happened ten years or so ago. It was a simpler time back then, when breweries got along and were far less litigious over matters of trademark. That's also the time when the industry exploded, paving the way for companies like Railtown and Railbird to exist.Can't we just go back to that?

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