Third Circuit: False endorsement claims use modified likelihood of confusion analysis

In a recent decision, the Third Circuit vacated a district court's grant of summary judgment to the plaintiff in a § 43(a) false endorsement case, but affirmed the plaintiff's summary judgment win as to the state law right of publicity claims.  The dispute revolved around the National Football League's use of John Facenda's voice in a production regarding the making of the video game Madden NFL 06.  Many football fans remember Mr. Facenda's voice from NFL Films productions from the 1960s up to his death in 1984; he is sometimes referred to as "The Voice of God."   The district court granted summary judgment to Mr. Facenda's estate on both claims.

The Third Circuit affirmed the summary judgment on the right of publicity claim, but vacated it on the false endorsement claim.  On the right of publicity claim, the Third Circuit agreed with the district court that copyright law did not preempt state right of publicity law in this case.  This was because Mr. Facenda's voice was used in a commercial context, rather than an "expressive" context.  Interestingly, the court cited with approval discussion of the district court's opinion on this subject from a leading copyright treatise, Nimmer on Copyright.

On the issue of false endorsement, the Third Circuit agreed with the bulk of the district court's analysis, but vacated the summary judgment on the basis of issues of disputed fact.  In so doing, the court adopted a modified version of the Ninth Circuit's test in false endorsement cases, as the appropriate factors were a matter of first impression for the Third Circuit.  Interestingly, the court observed that "parties may not stipulate to forgoing a trial when genuine issues of material fact remain that prevent either side from succeeding on a motion for summary judgment."  This is in contrast to a recent Federal Circuit decision, where the court decided an appeal where the parties did make such a stipulation before the district court.

More detail of Facenda v. N.F.L. Films, Inc. after the jump.

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Federal Circuit denies rehearing en banc in DC prescription drug price case

In a precedential order today, the Federal Circuit denied a petition for rehearing and rehearing en banc in Biotechnology Industry Organization vs. District of Columbia.  On August 3, the court held that the Prescription Drug Excessive Pricing Act of 2005 enacted by the District of Columbia City Council, which prohibited a patented drug from being sold in the District of Columbia for an excessive price, was preempted by Federal Patent Law (click here for our previous coverage of the decision).  The court's decision held that "[b]y penalizing high prices—and thus limiting the full exercise of the market power that derives from a patent—the District has chosen to re-balance the statutory framework of rewards and incentives insofar as it relates to inventive new drugs."   The court also noted that the Act specifically targeted patented drugs and that "[t]he underlying determination about the proper balance between innovators' profit and consumer access to medication, though, is exclusively one for Congress to make."  

Judge Dyk dissented from the denial of rehearing en banc, expressing concerns that the panel's opinion is too broad, and could be read to signal preemption of any similar law, even one that arguably does not interfere with the patent law field.  Judge Gajarsa concurred in the denial, arguing that the decision was not in conflict with an earlier panel decision or a decision of the Supreme Court, and that its scope is not as broad as Judge Dyk argued.

More detail of the individual opinions in the order after the jump.

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Federal Circuit affirms preemption of D.C.'s Prescription Drug Excessive Pricing Act of 2005

In a recent decision, the Federal Circuit affirmed the District Court for the District of Columbia's judgment that the federal patent laws preempted the District of Columbia's Prescription Drug Excessive Pricing Act of 2005

More details of Biotechnology Indus. Org. v. District of Columbia after the jump.

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