Courts Here Don't Rubber Stamp Stipulated Motions for a Protective Order
2009-09-15 06:28:00 It happens every so often in these parts — the court denies a stipulated protective order. Suffice it to say, courts around here don’t rubber stamp litigants’ attempts to privatize court proceedings. A case in point from a Western District trademark infringement suit last week: “The parties request an expansive protective order for all confidential information that may be disclosed during the discovery phase of this proceeding. The parties have agreed to designate as ‘CONFIDENTIAL MATERIAL …. any trade secret or other confidential research, design, development, financial, or commercial information.’ The parties have also agreed to designate as ‘ATTORNEYS ONLY MATERIAL’ any material that ‘is entitled to a higher level of protection due to its commercial sensitivity.’ “The Court need not enter the stipulation as an order of the Court because (1) the proposed order contains provisions that are m...
Five-Year Delay May Cut Off Trademark Infringement Damages, But Not Claim
2008-04-14 06:18:00 In Sonoma Foods, Inc. v. Sonoma Cheese Factory, LLC, plaintiff cheese maker sued defendant cheese maker in the Northern District of California. At issue was Sonoma Cheese Factory’s use of Sonoma Foods’ registered trademarks, SONOMA CHEESE FACTORY and DESIGN and SONOMA JACK (the “Bull Trademarks”), allegedly constituting infringement and a false description or passing off. According to Sonoma Cheese Factory, before December 31, 2001, Sonoma Foods owned and operated the Sonoma Cheese Factory retail store. On that date, the corporation was restructured; Sonoma Cheese Factory, LLC, was formed; and Sonoma Foods transferred the retail store to the new entity. When Sonoma Cheese Factory acquired the store, it continued to use the same signs and packaging that Sonoma Foods had used. It is that use about which Sonoma Foods complains. Two Photos Sonoma Cheese Factory submitted in support of its motion for part...
Western District: Read the Local Rules, then Seek a Settlement Judge
2008-03-20 04:24:00 The parties in Carey Licensing, Inc. v. Sandler have had a little trouble trying to book a Western District magistrate judge for a settlement conference in their trademark infringement and cybersquatting case. But as the Western District reminded them this week, magistrate judges don’t participate in settlement conferences — only parties do. The court’s minute order serves as a good reminder as to the difference between settlement conferences, mediations, and judicial settlement conferences. And, of course, to follow the local rules:“The court has been notified that counsel for both parties in this action have attempted to contact one or more magistrate judges to schedule a settlement conference. In doing so, the parties have ignored the court’s previously issued scheduling orders, and have ignored the court’s local rules.“The court’s most recent scheduling order requires the parties to complete a ‘Settle...
Western District Dismisses Breach of Contract Counterclaims
2008-01-23 06:24:00 In Amiga, Inc. v. Hyperion VOF, plaintiff sued defendant in the Western District for breach of contract, trademark infringement, trademark dilution, false designation of origin, and unfair competition relating to the development of a software operating system. Hyperion counterclaimed against Itec, Inc., alleging that Amiga, Inc. (Washington), one of the other parties to a software development agreement, had assigned its rights to Itec, which breached its obligation under the agreement to deliver certain intellectual property to Hyperion. (Itec allegedly later transferred its rights to another company that changed its name to Amiga, Inc. (Delaware), the plaintiff in this case).New York-based Itec moved to dismiss the counterclaims based on lack of personal jurisdiction. Judge Ricardo Martinez agreed. As the court summarized:“Hyperion̵-7;s counterclaims against Itec arise from the April 24, 2003 agreement between these two parties....
Amendments to Federal Rules of Civil Procedure Add Large Burden on IT
2007-10-17 17:49:00 The Security and Compliance Connection Blog – A recent story by Computerworlds Mary Brandel that was subsequently picked up by Lexis Nexis and Accountability Central highlights how the recent amendments to the Federal Rules of Civil Procedure (FRCP) have brought IT squarely into the litigation process. According… read more
Court Refuses to Transfer Title of Trademarks to Satisfy Judgment
2007-10-11 04:43:00 In 2005, Keystone Laminates, Inc., obtained a default judgment against KlipTech Composites, Inc., owned by defendants Joel and Leeann Klippert, in the total amount of approximately $120,000. Keystone alleges that during supplemental proceedings, it learned that KlipTech had sufficient assets in 2004 to satisfy its debt to Keystone, but that KlipTech instead transferred those assets to Paneltech International, LLC, one of KlipTech’s former clients.In 2007, Keystone filed suit in the Western District against Mr. and Mrs. Klippert and Paneltech for fraudulent transfer, corporate successor liability as to Paneltech, and to pierce KlipTech’s and Paneltech’s corporat-e veils as necessary to prevent abuse of the corporate form to frustrate Keystone’s ability to collect on its judgment. In September, it moved for an order transferring title of the trademarks from KlipTech to Keystone to satisfy its judgment. In support of i...
Ninth Circuit Reviews Arbitration Award Enforcing Trademark License Agreeme
2007-09-10 06:07:00 On Sept. 7, the Ninth Circuit published a decision affirming in part and vacating in part an arbitrator’s award based on a trademark license agreement. The decision underscores how deferential courts are when reviewing arbitration awards, but that such deference is not unlimited.In Comedy Club, Inc. v. Improv West Associates, plaintiffs Comedy Club and Al Copeland Investments, Inc., entered into a Trademark License Agreement that granted Comedy Club an exclusive nationwide license to use Improv West’s trademarks. Thereafter, Comedy Club breached the agreement and sought to protect its interests in the trademarks by filing a declaratory judgment action in the Central District of California. The court ordered the parties to arbitrate pursuant to the agreement’s arbitrat-ion clause. The arbitrator found that Comedy Club was liable for breaching the agreement and entered an injunction enjoining Comedy Club and its affiliates from openi...
Western District Strikes Claim for Lost Profits as Discovery Sanction
2007-08-09 05:18:00 On Aug. 7, the Western District sanctioned the plaintiff in Mother, LLC v. L.L. Bean, Inc., for failing to comply with an order compelling discovery. In this trade dress infringement and false designation of origin case arising out of the parties’ competing hunting vests, the court had ordered Mother to produce “all electronically stored information regarding its finances (including sales, financial statement data, and data relating to its claimed damages)” by April 16. The court also had authorized L.L. Bean to continue the deposition of Mother’s president, Martin Grabijas, until after Mother produced such information. (STL previously discussed this order here.)Mother responded by producing four pages of documents on May 17. In June, two weeks before the continued deposition, L.L. Bean’s attorney informed Mother’s attorney that the four pages Mother had produced did not appear to constitute full compliance with ...
Microsoft Gets Another Default Judgment Against Counterfeiter
2007-05-30 04:18:00 I can’t tell if Microsoft Corp. is being more aggressive or I’m just paying more attention. On May 18, it got a default judgment against an Ohio counterfeiter. (STL coverage here.) On May 24, it got a default judgment and injunction against a California counterfeiter. Not a bad week for Microsoft’s enforcement folks.In Microsoft Corp. v. Ricketts, Judge William Alsup of the Northern District of California granted the default judgment against Denise Ricketts, who does business as Mydencom. The court found: “Rickets advertised and distributed counterfeit Microsoft products on the auction website ioffer.com. Plaintiff allegedly warned defendant several times that the products she offered might be counterfeit by posting takedown notices on the auction website. After defendant continued to sell allegedly counterfeit products, Microsoft’s investigators placed an order with defendant. Upon receipt of three units of software, Micro...
Microsoft Scores Default Judgment Against Counterfeiter
2007-05-25 04:13:00 On May 18, Microsoft Corp. obtained a default judgment against Mark McGee, the owner and operator of the Ohio-based ComputerMe.net, for selling counterfeit Microsoft software. The Southern District of Ohio found that in August 2006, “Defendant distributed to an investigator counterfeit and infringing Office 2000 Pro software. This willful infringement was not an isolated incident, but rather is part of a continuous and ongoing business practice of Defendant in blatant violation of Microsoft’s copyrights and trademarks.”Judge Michael Barrett entered the default judgment because Microsoft served Mr. McGee with a copy of its summons and complaint but Mr. McGee failed to answer.In doing so, the court found that Mr. McGee’s violations of the Lanham and Copyright Acts were willful. Nonetheless, Microsoft sought only the maximum amount of statutory damages available for non-willful infringement. Specifically, it asked for statutory damages o...
Microsoft Scores Default Judgment Against Counterfeiter
2007-05-25 04:13:00 On May 18, Microsoft Corp. obtained a default judgment against Mark McGee, the owner and operator of the Ohio-based ComputerMe.net, for selling counterfeit Microsoft software. The Southern District of Ohio found that in August 2006, “Defendant distributed to an investigator counterfeit and infringing Office 2000 Pro software. This willful infringement was not an isolated incident, but rather is part of a continuous and ongoing business practice of Defendant in blatant violation of Microsoft’s copyrights and trademarks.”Judge Michael Barrett entered the default judgment because Microsoft served Mr. McGee with a copy of its summons and complaint but Mr. McGee failed to answer.In doing so, the court found that Mr. McGee’s violations of the Lanham and Copyright Acts were willful. Nonetheless, Microsoft sought only the maximum amount of statutory damages available for non-willful infringement. Specifically, it asked for statutory damages o...
Litigation Web Sites Get Attention
2007-05-23 07:08:00 There’s been a lot of talk this week about parties’ litigation- Web sites — much of it stemming from OMS Investments, Inc. v. TerraCycle, Inc., a trade dress case STL wrote about last week. The Chicago IP Litigation Blog posted on the subject and linked to a Wall Street Journal article, both of which discuss the Web site that defendants established, www.SuedByScotts.com. The 43(b)log and The Wall Street Journal’s Law Blog discussed the suit and the site as well.Locally, I know of at least two trademark cases that have spawned Web sites: Autodesk, Inc. v. Open Design Alliance (discussed by STL here, here, and here) and Moonstruck Chocolate Co. v. Moonray Espresso Corp. (discussed by STL here, here, and here). Autodesk generated www.ADSKvODA.com. Moonstruck was vigorously discussed in the DuvallForums message board and, for a time, on a site whose name belies the owner’s loyalties, www.Boycot... |
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