Intellectual Property Law

BSA Ramping Up Piracy Campaign

Posted on August 06, 2008
The Business Software Alliance (?BSA?), a trade association representing a number of software publishers, is launching a new campaign to attract would-be informants to its reward program. The BSA?s new Know it / Report it / Reward it campaign will...

In Copyright Litigation, Availability of Attorney?s Fees Awards Can Cut Both Ways

Posted on August 06, 2008
A recent opinion written by Judge Richard Posner for the 7th Circuit highlights the importance of carefully considering some of the risks of loss for plaintiffs in proceeding with a copyright infringement lawsuit. In Eagle Services Corp. v. H2O Industrial...

For Trademark Infringement Claims, Success May Hinge on Commercial Use

Posted on August 06, 2008
It is natural for the owner of a trademark want to seek some sort of redress when another person or entity uses that mark in the URL or the content of a web site, especially when that site competes with...

Trademark Law and the Naked Cowboy

Posted on August 06, 2008
The Naked Cowboy (a/k/a Robert Burck), a New York icon, is usually in the news for his well-known antics as a street performer. But the Naked Cowboy recently made some trademark law in a battle with Mars, Inc. and its...

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Digital Reproduction May not Violate Copyright

Posted on August 06, 2008
The Eleventh Circuit has held that a digital reproduction of a copyrighted image may, under certain circumstances, be a privileged revision of the work that does not violate the creator?s copyright. In an en banc decision, the sharply divided court...

Personal Names as Trademarks

Posted on June 18, 2008
A recent federal court decision highlights the difficulties that may arise when a personal name becomes a trademark that identifies a business?s products. In particular, difficult issues can come up after the right to use the name is sold. In...

For Most U.S. Residents, Internet E-mail Likely is Safe from Civil Legal Discovery by Third Parties

Posted on June 18, 2008
A federal court recently issued an opinion indicating that, at least for U.S. residents, public, third-party-hosted and Internet-based e-mail may be the virtual world?s equivalent of a Swiss bank account for personal information. In In re Subpoena Duces Tecum to...

Will ACTA Mean the Establishment of the International IP Police?

Posted on June 18, 2008
Trade negotiators from some of the world?s wealthiest industrialized nations are in the process of negotiating a pact that could lead to the establishment of a new kind of international IP rights enforcement. The U.S. is a leading proponent of...

ValueClick agrees to Settle with FTC for $2.9 Million

Posted on June 18, 2008
In a record settlement, ValueClick recently agreed to pay the Federal Trade Commission (?FTC?) $2.9 million to settle claims that ValueClick violated federal law and used deceptive advertising. The FTC alleged that ValueClick failed to protect consumer information and misled...

Promptly Register Your Copyrights or Lose

Posted on June 18, 2008
Companies and individuals with copyrighted materials should make certain to register their copyrights with the U.S. Copyright Office as soon as practical after the material has been published. If an application for registration is not made within three months of...

New Jersey Court Determines Internet Users Have a Constitutional Right to Privacy

Posted on May 29, 2008
The Supreme Court of New Jersey recently became one of the first courts in the nation to determine that Internet users have a Constitutional right to privacy under Article I of the New Jersey Constitution. Because of the ruling, a...

Court Awards MySpace 230 Million Dollar Verdict

Posted on May 29, 2008
The judge in MySpace Inc. v. Wallace, et al, CV-07-1929-ABC-AGR (C.D. Cal. May 12, 2008) entered a default judgment against Sanford Wallace and Walter Rines for violations of the CAN-SPAM Act and ordered the defendants to pay MySpace over $230...

Controversial Copyright Legislation Moves Forward, but with Significant Changes

Posted on May 29, 2008
By an overwhelming majority of 410-11, the U.S. House recently passed the Prioritizing Resources and Organization for Intellectual Property Act of 2007 (PRO-IP Act). The legislation has been controversial among many legal experts and consumer groups for proposing significant and,...

Trying to Remove a Case to Federal Court Does not Waive Arbitration Rights

Posted on May 29, 2008
The Texas Supreme Court has indicated that a party?s conduct in removing a case from state to federal court and later attempting to transfer the case to a multidistrict litigation panel did not constitute a waiver of its right to...

Don?t Ignore Copyright Infringement Allegations

Posted on May 29, 2008
It?s never a good idea for a business or individual accused of copyright infringement to simply ignore the allegations, hoping they?ll go away. This is particularly true when the copyright holder files a lawsuit seeking damages, as the defendant in...

Trademark Infringement Verdict ? Over $300 Million in Damages

Posted on May 14, 2008
Companies concerned about trademark issues should take note of a recent federal court verdict in an infringement case. On May 7, 2008, a jury in Oregon awarded Adidas $305 million in damages for trademark infringement by Payless Shoes, which is...

Arbitrators Cannot be Disqualified Based on Voluntary Disclosures

Posted on May 14, 2008
In a case of first impression, the California Court of Appeal has rejected an attempt to disqualify an arbitrator after the arbitrator volunteered information that was not required to be disclosed under the rules and statutes governing arbitration. In Luce,...

New Potential Liability for Internet Service Providers

Posted on May 14, 2008
The U.S. District Court in New Hampshire recently issued a written opinion that undoubtedly will give some Internet service providers reason to re-think their policies with regard to some anonymous user accounts. In Doe v. Friendfinder Network, Inc., the plaintiff...

District Court Clarifies Exclusive Right to Distribution

Posted on May 14, 2008
An Arizona district judge recently reconsidered its decision to grant summary judgment in favor of a group of recording companies in Atlantic Recording Corporation et al. v. Howell. The record companies accused Mr. and Mrs. Howell of using music-sharing software...

The Use of Pricing Schedules in Managed Service Provider Agreements

Posted on May 14, 2008
Many managed service providers incorporate their pricing and payment terms into their Master Services Agreements or their Service Level Agreements. While it is important to ensure that the financial arrangements are clearly delineated in writing to ensure that everyone?s expectations...

Master Service Agreements

Posted on May 14, 2008
The master service agreement for MSP's defines the terms and conditions of the relationship between the MSP and its client related to all managed services and project based work. There are several critical provisions that are necessary to protect the...

Record Companies Ordered to Pay Attorney's Fees

Posted on April 30, 2008
The District Court of Oregon recently ordered a group of record companies to pay an accused file-sharer's attorneys? fees in the amount of $300,000 for defending her suit over a two-year period. Plaintiffs Atlantic Recording Corp., Priority Records LLC, Capitol...

Perfect 10 Gets Help from Industry Groups in Fight Against Visa

Posted on April 30, 2008
Perfect 10 ? the publisher of adult photographs that lost its appeal to hold Google liable for copyright infringement by linking to and displaying thumbnails of unauthorized copies of its copyrighted images ? has won the support of the MPAA,...

No Fiduciary Relationship Between Inventor and Party That Agrees to Develop and Patent the Invention

Posted on April 30, 2008
Inventors and researchers often enter into agreements with other parties to develop, patent, and commercially exploit their inventions. But does such an agreement create a fiduciary relationship or is it nothing more than a simple contractual relationship? The answer to...

Court Expands Owner?s Liability Under New York Labor Law 240

Posted on April 30, 2008
New York businesses should review a recent decision by the Court of Appeals expanding the scope of liability under New York Labor Law section 240(1). In Sanatass v. Consolidated Investing Company, Inc., 2008 WL 1817261 (N.Y. 2008), a divided court...

California adopts ?Sophisticated User? Doctrine for Products Liability

Posted on April 23, 2008
The California Supreme Court has given additional protections to manufacturers faced with products liability suits. Following the lead of other state and federal courts, California courts will now apply the ?sophisticated user? doctrine. Under this doctrine, a manufacturer cannot be...

Summary Judgment Difficult to Obtain for Claims of Trademark Design Infringement

Posted on April 23, 2008
A recent opinion from the Southern District of California highlights the difficulties that a trademark owner can face when seeking summary judgment on a claim that a defendant infringed its design trademarks. HIT Entertainment, Inc., et al., v. National Discount...

Data Brokers Settle with FTC

Posted on April 23, 2008
Data brokers Reed Elsevier and Seisint have agreed to conduct biennial audits of its data protection procedures for 20 years as part of a settlement with the FTC. Businesses that find themselves under the FTC's scrutiny and choose to settle...

Copyright Owners May Lose Standing to Sue for Infringement as a Result of Agreements with Industry Groups

Posted on April 23, 2008
A Western District of New York Magistrate Judge recently recommended that claims filed by the owners of several copyrighted songs (allegedly performed without their permission) should be dismissed as a result of the plaintiffs? membership in the American Society of...

What Constitutes a ?Copy? of Software Under Copyright Law?

Posted on April 03, 2008
Software auditors almost always try to find ways to maximize the number of allegedly infringing software ?copies? at issue in an audit engagement. It is typical for the Business Software Alliance (BSA), the Software & Information Industry Association (SIIA), and...

No Punitive Damages Under Federal Copyright Law

Posted on April 03, 2008
Viacom?s well-publicized court fight against YouTube and Google his given Judge Louis Stanton of the U.S. District Court for the Southern District of New York an opportunity ? or, perhaps more accurately ? a good reason to now repudiate one...

Business Software Alliance Member List Grows

Posted on April 03, 2008
The Business Software Alliance (?BSA?), a trade association representing a number of software manufacturers, routinely updates its published member list list of members on its website. Staying current on the BSA's list of active members is important because the list...

Agreement May Not Expand Judicial Review of Arbitration Award

Posted on April 03, 2008
Businesses that are parties to arbitration agreements should review a recent decision by the Supreme Court of the United States where the Court held that parties to an arbitration agreement may not contract for expanded grounds of judicial review. In...

Copyright Guide: Register Promptly or Lose Valuable Remedies

Posted on April 03, 2008
A federal court has issued a reminder to business owners trying to protect their intellectual property ? register your copyrights as soon as possible or lose access to the most effective remedies for fighting copyright infringement. A plaintiff suing for...

FTC Deadline for Commenting on Behavioral Advertising Guidelines Extended Until April 11

Posted on March 25, 2008
Businesses that use behavioral marketing and advertising techniques may consider reviewing and commenting on the Federal Trade Commission?s (?FTC?) proposed guidelines. The guidelines are designed to provide consumers with more visibility into the behavioral advertising process, which the FTC recognizes...

Student Loan Company Settles With FTC

Posted on March 25, 2008
The FTC announced on March 4 a settlement with Goal Financial, LLC, a San Diego-based student loan company that allegedly violated information privacy laws. If accepted, the settlement will require Goal Financial to implement a comprehensive information security program and...

The Idea-Expression Dichotomy in Copyright Law

Posted on March 25, 2008
It is not possible to copyright an idea. The owner of a small business in Georgia recently received an undoubtedly unwanted lesson in this sometimes-overlooked aspect of copyright law when she saw her suit for copyright infringement dismissed following the...

California Court ? No Individual Liability for Retaliation

Posted on March 06, 2008
Overruling a number of decisions by intermediate appellate courts, a divided California Supreme Court has rejected the notion that an employment discrimination plaintiff may file claims against individual defendants for retaliation. The decision in Jones v...

IT Departments Having Difficulty Finding Employees with Proficient Privacy and Security Skills

Posted on March 06, 2008
Network World recently published the results of a Computer Technology Industry Association (?CITA?) survey indicating that many businesses are in need of IT professionals with a variety of security and data privacy skills. Although approximately 75 percent of businesses identified...

Trademark Guide: Domain Names and Infringing Use on the Internet

Posted on March 06, 2008
eBay recently entered into a stipulated final judgment with the operator of another Internet auction site that, as alleged by eBay, committed trademark infringement, dilution, false designation of origin and unfair competition through its use of a confusingly similar domain...

Choosing the Right Microsoft Server Product

Posted on March 06, 2008
Many businesses use Microsoft server products to manage their network, their data, and their e-mail communications. However, businesses often select a Microsoft server product without weighing the advantages and disadvantages of the products' Standard and Enterprise versions...

HIPAA Audits Will Increase in 2008

Posted on February 27, 2008
In 2008, the Centers for Medicare & Medicaid Services (CMS) announced that it entered into a contract with a PricewaterhouseCoopers to audit covered entities and ensure compliance with the HIPAA security standards. According to CMS, the initial round of audits will be directed at the hundreds of companies about which it has received complaints...

Mitigating Negative Publicity from Software Audits

Posted on February 27, 2008
The Business Software Alliance (BSA) recently announced that it entered into a settlement agreement with a small-to-medium-sized motor sports dealer and equipment supplier in Greenville, South Carolina, regarding the dealer?s alleged use of unlicensed, Adobe and Microsoft software...

eBay Not Infringing SmartSearch Trademark

Posted on February 19, 2008
In Applied Information Sciences Corp. v. eBay Inc., 511 F.3d 966 (9th Cir. 2007), the Ninth Circuit affirmed a district court decision awarding summary judgment to defendant eBay, Inc. (?eBay?) in a trademark infringement action brought by Applied Information Sciences Corp (?AIS?)...

Middle Earth May Be Safe Harbor for Trademarks

Posted on February 19, 2008
In determining the degree to which a trademark is entitled to protection against infringement, one of the factors that a court will consider is the strength of the mark. In making this determination, a court typically will consider where along a spectrum of distinctiveness a trademark falls...

Consumer Files $54 Million Lawsuit Against Best Buy for Lost Laptop

Posted on February 19, 2008
Raelyn Campbell bought a new laptop in 2006 from Best Buy for $800. She says she was also persuaded to purchase the $300 protection program. When her laptop needed repairs in 2007, she dropped it off at her local Best Buy. Best Buy apparently fabricated status updates each time Ms...

Derivative Suits Available to LLC Members in New York

Posted on February 19, 2008
New York practitioners should review a recent decision by a sharply divided Court of Appeals establishing that members of limited liability companies may bring derivative suits on behalf of their LLCs. The majority of the court reached this conclusion even though New York law provides no explicit authorization of such suits...

Copyright Guide: Faster Filing Using the E-Copyright Office or ?Special Handling?

Posted on February 19, 2008
Generally, it can take at least four months to receive a certificate of copyright registration from the U.S. Copyright Office. The time to process an application varies, depending on the workload of the office and the complexity of a particular application...

Trademark Guide: International Registration using the Madrid Protocol.

Posted on February 19, 2008
If your business is interested in registering its trademarks outside the United States, you should consider using the international registration system available under the Madrid Protocol. This system offers the opportunity to file one application through the USPTO, pay one set of fees to the USPTO (in U...

Trademark Guide: What is an ?Incontestable? Trademark?

Posted on February 19, 2008
Once a business has successfully registered a trademark, that mark must also be managed and maintained. One of the best ways to protect a valuable mark is to have it declared incontestable by the USPTO. After a mark has been registered for at least five years, the mark owner may file a declaration under section 15 of the Act...

Expedited Trial in Silicon Image vs. Analogix Matter

Posted on February 13, 2008
In 2007, Silicon Image filed a lawsuit against Analogix alleging, inter alia, that Analogix infringed Silicon Image?s copyright when it purportedly gained unlawful access to Silicon Image?s semiconductor software. Silicon Image also claimed that Analogix misappropriated Silicon Image?s proprietary register maps, and that Analogix encouraged existing and prospective customers to modify Silicon Image?s software for use that was outside the scope of Silicon Image?s software license agreements...

Rock Band The Romantics Denied Injunction

Posted on February 13, 2008
The rock band The Romantics filed a lawsuit on November 20, 2007 against the producers of the video game Guitar Hero alleging, among other claims, violation of right of publicity, and moved for preliminary injunction preventing the manufacture, distribution, sale, or marketing of the game during the pendency of the civil action...

A Business Owner?s Guide to Trademarks: Trade Dress

Posted on February 13, 2008
In addition to the words or logos accompanying a product or service, the physical structure and/or packaging of a product or the distinctive locations where a service is offered also can serve as powerful mechanisms to identify and differentiate the product or service in the marketplace...

Trademark Guide: Why do I Need to ?Police? My Trademark?

Posted on February 13, 2008
Businesses often make the mistake of assuming that once they acquire a federally registered trademark, they are protected. But having a federally registered trademark does not automatically protect the mark. The use of a trademark has to be ?policed? ? that is, the trademark owner is obligated to locate and investigate unauthorized uses of the mark...

Trademark Guide: Federal Versus State Registration

Posted on February 13, 2008
Companies are often confronted with the question of whether they should register a trademark or service mark with the United States Patent and Trademark Office or simply register their mark with a state. State registration is usually less expensive, but state law also provides less protection to a mark...

Autodesk Audit: The Importance of Serial Numbers

Posted on February 06, 2008
In many software audits, the auditing entity like the Business Software Alliance or the Software & Information Industry Association requires a dated proof of purchase to demonstrate when a license for a software product was acquired. However, in audits initiated by Autodesk, the serial number can play a crucial role in demonstrating ownership...

Insurer can Perfect Subrogation Appeal by Filing Notice Under Insured?s Name

Posted on February 06, 2008
The Texas Supreme Court has recently issued a decision requiring appellate courts to liberally construe attempts by litigants to invoke appellate jurisdiction. Unlike the federal courts, which generally take a strict approach to jurisdictional issues, Texas companies and litigants should be aware that in the wake of Warwick Towers Council of Co-Owners v...

Attorneys General Reach Settlements Under Spyware Protection Acts

Posted on February 06, 2008
Washington Attorney General Rob McKenna filed a lawsuit against three California-based Internet affiliate advertisers in February, 2007 under that state?s Computer Spyware Act and Consumer Protection Act. One of the defendants settled in October. HoanVinh V...

Copyright Claims Against the U.S. Government Can Be Difficult to Maintain

Posted on February 06, 2008
A recent opinion from the U.S. Court of Federal Claims highlights some of the difficulties that creative professionals may face when pursuing claims of copyright infringement against the federal government. Admittedly, though, it is doubtful that most such claimants would find themselves in the situation of pursuing such claims from a jail cell...

California Considering its Own E-Discovery Scheme

Posted on February 06, 2008
Following the lead of the federal courts, the California Judicial Council has proposed a set of amendments to the Code of Civil Procedure intended to deal with electronic discovery in California state courts. The proposal includes amendments to the Civil Discovery Act (Code of Civil Procedure § 2016...

Rob Scott Profile

Posted on January 29, 2008
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Texas Supreme Court ? Insurer Must Show Prejudice to Deny Coverage for Delay in Giving Notice

Posted on January 28, 2008
A copyright infringement suit has led to a change in Texas law regarding when an insurer may deny coverage after a policyholder fails to give prompt notice that a potential claim exists. In PAJ. Inc. v. Hanover Insurance Co., 2008 WL 109071 (Tex. 2008), the court held that to deny coverage to policyholders who delay in reporting claims, an insurer must demonstrate that the delay prejudiced the insurer...

Imprecise Formula is not a Trade Secret

Posted on January 28, 2008
A recent Texas appellate decision highlights the difficulties that may arise when claiming that a particular product formula constitutes a trade secret. In Global Water Group, Inc. v. Atchley, 2008 WL 82241 (Tex. App. ? Dallas 2008, n.p.h.), the Texas Court of Appeals rejected a claim by Global held that a competitor had stolen its trade secrets, holding that the imprecise formula used by Global was did not constitute a protectable trade secret...

Court Upholds E-mail Settlement Agreement

Posted on January 28, 2008
The Massachusetts Appeals Court ruled on January 15 that when parties accept the terms of a settlement agreement via e-mail, the settlement agreement is enforceable. In the midst of a jury-waived trial, plaintiff Basis Technology Corporation and defendant Amazon...

A Business Owner?s Guide to Trademarks: The Supplemental Register

Posted on January 28, 2008
A trademark is the most valuable asset owned by many businesses. The design, features, source code, or formulation of a product or service may change regularly and even predictably. Without a concise representation of the source, history or reputation of that product or service ? as distilled to the mark used to brand it ? such changes would make it immeasurably difficult, if not impossible, for a business to maintain demand...

A Business Owner?s Guide to Trademarks: Criteria for Registration on the Principal Register

Posted on January 28, 2008
A trademark is the most valuable asset owned by many businesses. The design, features, source code, or formulation of a product or service may change regularly and even predictably. Without a concise representation of the source, history or reputation of that product or service ? as distilled to the mark used to brand it ? such changes would make it immeasurably difficult, if not impossible, for a business to maintain demand...

Should I Copyright my Website?

Posted on January 23, 2008
Website owners may spend countless hours getting their content just right and then leave themselves vulnerable to having that content used by others without authorization. A business or individual that wants to protect the substantial investment made in a website should consider spending a little money to gain a lot of protection by having the website copyrighted...

Qualcomm Attorneys Hit With Multi-Million Dollar Sanctions for E-Discovery Violations

Posted on January 23, 2008
In the latest chapter of the ongoing Qualcomm litigation, a federal judge has levied more than $8 million dollars in sanctions and referred attorney?s representing Qualcomm to the State Bar of California for e-discovery abuses. The sanctions are the culmination of a discovery dispute where, according to the court, counsel for Qualcomm tried to fend off allegations of noncompliance with the discovery rules by claiming that the client kept counsel ?in the dark? about the existence of more than 200,000 pages of critical e-mails and electronic documents that were not produced in discovery...

A Business Owner?s Guide to Trademarks: Trademark Registration

Posted on January 11, 2008
A trademark is the most valuable asset owned by many businesses. The design, features, source code, or formulation of a product or service may change regularly and even predictably. Without a concise representation of the source, history or reputation of that product or service, such changes would make it immeasurably difficult, if not impossible, for a business to maintain demand...

Responding to Autodesk Audits

Posted on January 11, 2008
The BSA and SIIA are not the only organizations pursuing business for software copyright infringement. Though it is a member of both the BSA and SIIA, Autodesk, which manufactures the popular design software AutoCAD, often pursues audit targets on its own...

Mortgage Company Settles With FTC For FACTA Violations

Posted on January 11, 2008
The FTC recently announced its first settlement regarding FACTA document disposal rule, 16 C.F.R. 682, which requires any company collecting consumer information for a business purpose to dispose of that information in a way that prevents unauthorized access and misuse of the data...

Scott & Scott, LLP Selected for On-line Copyright Registration System

Posted on January 11, 2008
The American copyright registration system, currently an entirely paper-based operation, is on the verge of going electronic, and Scott & Scott, LLP has been selected to be part of that revolution. The United States Copyright Office is testing a new on-line web-based copyright registration system...

Supreme Court Clarifies Texas Post-Trial Motion Practice

Posted on January 11, 2008
Business with pending Texas litigation should be aware of a recent decision by the Texas Supreme Court clarifying when a trial court loses plenary power to order a new trial. In In re Brookshire Grocery Company,2008 WL 53702 (Tex. 2008), the court held that an amended motion for new trial does not extend a trial court?s plenary power to grant a new trial unless it has been filed before any prior motion for new trial was overruled and it is filed within 30 days of judgment...

Retaining New York Attorney Sufficient to Establish Personal Jurisdiction

Posted on January 04, 2008
Businesses located outside New York that retain attorneys in the state to perform legal services should review a recent decision from the New York Court of Appeals establishing that having an attorney-client relationship with a New York attorney can subject the business to personal jurisdiction in a New York court...

Ninth Circuit Clarifies Contributory Copyright Liability

Posted on January 04, 2008
A recent decision from the Ninth Circuit clarifies the circumstances under which a company may be held liable for contributory copyright infringement. In Perfect 10, Inc. v. Amazon.com, Inc., 2007 WL 4225819 (9th Cir. 2007), Perfect 10, a website selling copyrighted images of nude celebrities, sued Google and other entities for copyright infringement...

Trademark Infringement Plaintiffs Seeking Statutory Damages Cannot Also Recover Attorney?s Fees

Posted on January 04, 2008
A recent decision by the Ninth Circuit will affect the ability of companies seeking to recover for trademark infringement and counterfeiting to also be awarded their attorney?s fees. In K&N Engineering, Inc. v. Bulat, 2007 WL 4394416 (9th Cir. 2007), the court held that when a business chooses an award of statutory damages under the federal trademark laws instead of seeking actual damages, attorney?s fees cannot be recovered...

No FTC Opposition for Google?s Acquisition of DoubleClick

Posted on January 04, 2008
Despite the opposition posed by consumer advocacy and privacy groups, the Federal Trade Commission recently voted to close its investigation of Google?s proposed acquisition of DoubleClick. Opponents argued that combination of Google and DoubleClick?s data could be exploited and used to invade consumers? privacy...

Eight Predictions for 2008

Posted on January 04, 2008
2007 was an exciting and dynamic year for the software asset management industry. As we enter a new year, the software industry will continue to evolve. Here are my predictions for what will happen in 2008. 1. BSA expands its ?no-fine? self-audit program I will remember 2007 as the year that the BSA increased its reward program for ?anti-piracy? leads to up to $1,000,000...

Protection of Website Content ?The Potential of Trademark

Posted on January 04, 2008
Websites have, in the past, relied primarily on textual or photographic elements to convey their messages. This fact has made it historically difficult for a business to support a claim that a competitor?s uncomfortably close emulation of its Internet content constituted trade dress infringement, in violation of U...

Attorney?s Duty When Receiving Inadvertently Disclosed Privileged Documents

Posted on January 02, 2008
Business and attorneys involved in California litigation may be affected by a recent ruling by the California Supreme Court regarding an attorney?s obligations when receiving inadvertently disclosed information that is protected by the attorney-client privilege or the work product doctrine...

No ?Famous? or ?Well-Known? Marks Doctrine in New York

Posted on January 02, 2008
The New York Court of Appeals has rejected the application of the ?famous? or ?well known? marks doctrine under New York law. Companies concerned about infringement of unregistered marks in New York state should be aware that claiming their mark is ?famous? or ?well-known? will not be sufficient to state a common law claim for unfair competition when a competitor uses the mark in New York...

Texas Workforce Commission Decisions Have Res Judicata Effect

Posted on January 02, 2008
Texas employers should review a recent decision by the Texas Supreme Court that will affect the resolution of wage claims made under the Texas Payday law. In a case of first impression, the Texas Supreme Court has held that a final adjudication of a wage claim by the Texas Workforce Commission denying the claim precludes the subsequent filing of a common law wage claim in state court...

Even in a Class Action, Registration is a Jurisdictional Prerequisite to Copyright Infringement Claim

Posted on January 02, 2008
The United States Court of Appeals for the Second Circuit has rejected an attempt to certify a class action by copyright holders for the unauthorized electronic reproduction of their works. In In re Literary Works in Electronic Databases Copyright Litigation, 2007 WL 4197413 (2d Cir...