Posts Tagged: "litigation"

For better or worse, anyone can be sued for any reason—even reasons that are completely fictitious and based on allegations that are entirely false. Several cases have recently caused me to ask a simple question: Can something actually be evidence if it is false? I’ve had a few people respond, some thoughtful and others intentionally dense. “Of course, something that is false is evidence,” one person recently told me. “It is up to the trier of fact to determine what is false, and that which is false is clearly evidence to be considered.”

In the spirited world of whiskey, legal battles ferment in the form of trademark litigation. In the vast realm of whiskey production, where brands are as carefully crafted as the spirits themselves, clashes over trademarks have become common. The legal complexities swirling within the whiskey industry encapsulate the struggles of renowned manufacturers to protect the unique identities they have painstakingly cultivated for their whiskey brands. From the nuances of trade-dress like labelling and branding, to shape marks for detailed bottle designs, whiskey companies engage in multifaceted litigations to safeguard their trademarks.

The complex rules of copyright and trademark law are designed so that creators of popular expressive works and companies marketing authentic branded products are properly protected. This Christmas, we’re looking at a series of rulings from U.S. federal courts on intellectual property (IP) issues involving holiday ornaments, public displays with light sculptures, as well as one of the most popular Christmas songs ever. These cases don’t simply show that a Santa Claus can be designed with non-generic copyrightable elements; they also show members of the U.S. federal judiciary working diligently to properly dispense justice on IP questions between the adverse parties arguing before them.

In a laudable effort to curtail rampant corporate IP theft, a bipartisan group of U.S. Senators has called on a hesitant Department of Justice (DOJ) to step up its enforcement. As reported in Forbes, Senators Thom Tillis (R-NC), Chris Coons (D-DE), and Marsha Blackburn (R-TN) recently issued a letter to the DOJ identifying the core gap in its prosecution habits. Their primary complaint was “the DOJ’s focus on individual, as opposed to corporate, offenders.” This is an oversight that must be corrected. 

Last Saturday, my friends and I practically bounced our way to the movie theatre, joining throngs of pink-clad youngsters to watch the year’s biggest global blockbuster: ‘Barbie.’ Well, Barbie has done it all, honestly. She has not only achieved unparalleled success as a toy, with over a billion units sold worldwide, but now as a movie, amassing an impressive $365 million global opening. She has defied traditional stereotypes by promoting career-focus and self-sufficiency, challenged the motherhood-aspiration notion for young women, and inspired Greta Gerwig’s modern take on the iconic character. However, we often overlook the doll’s profound contributions to the evolution of intellectual property (IP) jurisprudence, from its genesis to its movie adaptation.

Surveys conducted independent of litigation have had mixed success in court. These surveys have been offered as evidence of customer confusion in false advertising cases, intellectual property value in patent cases, consumer behavior in antitrust cases, and plaintiff identification in class actions. In some cases, non-litigation surveys have been admitted as useful evidence on important questions for which data are scarce; in others, they have been excluded as irrelevant or unreliable.

Latin American countries are not usually seen as a first line option when building a strategy to deploy global litigation campaigns to enforce patent rights. However, in 2022, developments in Colombian law highlighted it as a country with administrative and judicial systems that favor patent rights and provide for effective assertion of local patent assets.

Robert Willison, an Atlanta real estate investor, could not believe what he was seeing on the computer screen. A business associate had mentioned that Mr. Willison might want to Google himself, as some odd search results were appearing. And there they were. Post after post after post, across numerous websites and social media platforms, alleging that Mr. Willison was a sociopathic criminal. According to the posts, Mr. Willison sold drugs to federal judges, stole credit cards numbers, stole money, made death threats, committed home invasions, masterminded a Ponzi scheme, and more…. Understanding the best practices for handling these situations can help turn them around, just as Mr. Willison did, to protect your online reputation – a valuable component to both an individual and their business’s intellectual property

Last week, documents were filed confirming that singer-songwriter Tracy Chapman accepted Onika Tanya Maraj’s (who performs rap under the stage name Nicki Minaj) Rule 68 Offer of Judgment, dated December 17, 2020, in the amount of $450,000, inclusive of all costs and attorney fees. In September 2020, the U.S. District Court of the Central District of California granted partial summary judgment in favor of Minaj, resolving a copyright infringement dispute originally filed in 2018 by Chapman over Minaj’s unauthorized use of Chapman’s 1988 single, “Baby Can I Hold You.” While the district court’s partial summary judgment ruling for Minaj said that Minaj had established a fair use defense to Chapman’s copyright infringement claims, it also said Chapman’s distribution claim should be tried and resolved by a jury, so the case moved forward.

Tuning in to the recent sentencing of Anthony Levandowski for criminal trade secret theft, I was reminded of the wise observation about relationships, that remembering the ending is a way to forget about the beginning. But while that way of thinking can be a salve for the heart, it’s not so helpful when it comes to the kind of critical self-analysis that we need to improve our behavior, or at least certain outcomes, in business. It’s natural for us to be attracted to the drama of trade secret litigation. These cases typically involve claimed treachery of some kind, contrasted against an alternate narrative of entrepreneurship and helpful market disruption. Indeed, as I have often remarked to my students, trade secret cases are a trial lawyer’s dream, because you are dealing with the kind of emotional issues that can draw in a jury and make it easy to keep attention focused on the story you’re trying to tell.

Intangible assets today make up nearly 84% of enterprise value for companies listed on the S&P 500. This material growth in intellectual property as an asset on U.S. company balance sheets has placed increased demands on the office of General Counsel. Protecting intangible assets against computer theft and pursuing litigation against wrongdoers has become a major and timely concern, especially in the context of an increasingly virtual world due to the global pandemic. A recent brazen and sophisticated computer intrusion into the records of over 145 million Americans launched from computer hackers based in China led to criminal prosecutions under the Computer Fraud and Abuse Act (CFAA).

As a buyer, tracking the behaviors of sellers, both in aggregate and individually, allows you to operationalize your buying activities. This is especially true for repeat sellers, who account for 41% of the transactions for patent packages listed in calendar years 2017 and 2018. Knowing who the regular sellers are, often companies with a large portfolio, allows you to contact sellers to create a private deal. Keeping track of a seller’s listings, package sizes, and asking prices can also help you in negotiations because you know their negotiation parameters at the outset. Similarly, if you are a seller, it is important to get out the word that you are selling. Listing packages on your website, through the IAM Market, or working with brokers attracts buyers to you rather than you having to spend the time and effort to find them. For the analysis of current sellers and buyers we looked at all of the packages that sold between January 1, 2017 and May 31, 2018 (assignments were last checked on August 15, 2018) regardless of their listing date. Sales continue to be made mostly by operating companies, which is not surprising as they file the majority of patents. Operating companies were the sellers in 67% of transactions. This is remarkably consistent, at 66% in the previous two papers.

Surveys to prove or disprove trademark infringement or likelihood of confusion have been used by attorneys for many years. Unfortunately, many attorneys using surveys can weaken a survey’s impact by failing to avoid some crucial pitfalls. Here are 10 important things to avoid and correct when developing surveys for litigation purposes.