Case 1:13-cv-01215-TSC Document 239 Filed 03/31/22 Page 10 of 47
summaries of changes, summaries of test methods, significance and use sections, and supplementary requirements. See Pls.’ 2d SMF at 8–44. Plaintiffs also argue that Defendant’s use of each standard undermines the actual and potential markets for Plaintiffs’ works. See Pls.’ 2d MSJ at 25–31.
As to its trademark claims, Plaintiffs argue that Defendant does not need to use Plaintiffs’ marks, logos, organizational names, or identify the standards by name to advance its mission of educating the public about binding legal obligations. Id. at 33–34. Plaintiffs also contend that Defendant’s use of Plaintiffs’ logos goes beyond what is reasonably necessary to identify Plaintiffs’ works, and that Defendant’s disclaimers fail to adequately reduce the likelihood of consumer confusion. Id. at 34–37.
Finally, Plaintiffs seek a permanent injunction barring Defendant from reproducing and using Plaintiffs’ standards and trademarks because they will otherwise suffer irreparable harm, no other adequate remedy is available to compensate them, the harm to Plaintiffs outweighs any potential harm to Defendant, and the public interest favors an injunction. Id. at 38–45.
Defendant responds to Plaintiffs’ copyright claims by arguing that its use of the incorporated standards is non-infringing fair use. See ECF No. 203-1, Def. Second Mot. for Summ. J. (“Def.’s 2d MSJ”). Specifically, Defendant contends that the federal government has incorporated into law every standard at issue in its entirety, that those standards are not generally and freely accessible, and that Defendant’s actions have no effect on Plaintiffs’ standard sales. Id. at 8–10. Defendant also “reasserts its earlier arguments” made in support of its first motion for summary judgment that Plaintiffs’ standards are not entitled to copyright protection because: (1) the standards are binding laws of the United States and at least one state; (2) the standards are not copyrightable subject matter pursuant to 17 U.S.C. § 102(b); (3) the merger doctrine
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