This is not a win for either side yet, and is not a surprise of any sort.
Quote:
On a motion to dismiss, the court will accept the plaintiff’s allegations as true and must draw all reasonable inferences in favor of the plaintiff
Those are the rules. That’s just the way it works; it is part of the game.
Insane KJ wrote:
My favorite statement from the order, Pg 4 Par 1
"Expressway is the orgin of media- and format-shifted records, the presence of Slep-Tone's "SoundChoice" trademark is passing off Expressway's product as Slep-Tones."
Read the full order cited below as to not take any of this out of context.
You read the order and still presented your favorite part out of context:
Quote:
Slep-Tone appears to argue that Expressway is the orgin of media- and format-shifted records, the presence of Slep-Tone's "SoundChoice" trademark is passing off Expressway's product as Slep-Tones. As pleaded and given a literal interpretation of Dastar, the claim survives dismissal.
It seems Slep-Tone's argument wasn't quite clear enough to the judge ("appears to argue"), yet they are given benefit of the doubt to try to make their case.
Here’s my favorite quote:
Quote:
While this case may toe the line between a trademark claim attempting and “end run around the copyright laws” and a viable trademark claim, reviewing the facts in a light most favorable to the nonmovant, it would be improper to dismiss the case at this time.
That quote makes it sound like the court understands that this is an “end run around the copyright laws” and that given the rules of procedure; it is not proper to dismiss the case at this time, but it may be properly dismissed at some future time.
Still no big deal.
For those who want to see an actual decision from the court on "media shifting" this is good news.
I cannot believe Insane is so in the bag for SC that he quoted a line from the decision so far out of context as if the judge has made up his mind that SC's allegations were true. Obviously, Insane knows not a wit about motions to dismiss which are used merely to test the sufficiency of the allegations, not whether the allegations are true. This decision merely means that SC has met the bare minimum in alleging the elements of the claim. That's like touting a victory for alleging a contract has been breached, but it says nothing about whether the evidence exists to prove it. Big deal. As we all know SC has survived such motions in the past by using its form complaint. But when it came to actually having to prove what it alleged, it has proved buppkiss (see Kandy Store loss at trial with Harrington himself at the helm and ordered to pay Kandy Store's costs. Not exactly a shining recruitment tool for new contingency lawyers). This decision did, however, provide insight into the judge's thinking though, primarily that he believes SC's claim may be dismissed later on summary judgment or at trial, if it gets that far.
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