Document Type
Brief
Publication Date
9-25-2017
Abstract
Oral Argument Not Yet Scheduled
No. 17-7035 (Lead Case), 17-7039
American Society for Testing Materials v. Public.Resources.Org, Inc.
On Appeal from the United States District Court for the District of Columbia
From the Summary of Argument
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 control over the creative work is the province of copyright law, not the Lanham Act. Accepting ASTM’s argument would create exactly the kind of “mutant copyright” rejected by the Supreme Court.
Recommended Citation
Brief of Amici Curiae on Behalf of Intellectual Property Professors in Support of Appellant and in Support of Reversal, Am. Soc'y for Testing & Materials v. Pub. Res. Org., Inc., (No. 17-7035) (D.C. Cir. Sep. 25, 2017).
Comments
Amici are law professors who teach and have written extensively about trademark law. See the listing on page 1, including Notre Dame Law School's Mark McKenna.
Table of Authorities include:
Mark P. McKenna & Lucas S. Osborn, Trademarks and Digital Goods, 92 Notre Dame L. Rev. 1425 (2017)