Tag Archives: Big Law

America’s trademark litigation gravy train – the Bratz / Barbie case is back!

Originally posted 2013-01-30 22:02:10. Republished by Blog Post Promoter

I can’t claim to be keeping close tabs on what’s going on in theBarbie / Bratz trademark litigation. But lookie here:

A federal appeals court has ruled that Mattel Inc. doesn’t have to pay $172 million to MGA Entertainment Inc. to settle a trade secrets theft claim over Bratz dolls because a key claim should have been dismissed before trial.

The ruling filed Thursday by the U.S. 9th Circuit Court of Appeals is the latest wrinkle in a bitter, protracted dispute between two Southland toy companies: El Segundo-based Mattel, the world’s No. 1 toy maker and owner of the Barbie empire, and Van Nuys-based MGA, a little-known company until it introduced Bratz in 2001.

Ok, don’t get too excited:

The unanimous decision by the three-judge panel found that MGA’s counter-claim accusing Mattel of misappropriating trade secrets was not related to an earlier trade secret allegation by Mattel and, therefore, could not be included in the lawsuit. The panel left open the possibility of a separate action on the claim.

Thursday’s ruling leaves MGA with an award of about $137 million, down from the original $310-million award the company received in a 2011 retrial.

Trademark lawyer Ron ColemanNaturally those of us lower in the food chain understand why this work goes to the tippy-toppest trademark lawyers ever, of course — all that certainty you get when you invest in such quality talent.

It’s inspiring to the rest of us just to be allowed to peer in through the knotholes, believe me!

Oh, well, $137 million.  That is less than half of $310 million, so I get why “MGA Chief Executive Isaac Larian said that the company ‘absolutely’ plans to bring another suit against Mattel for trade secret theft, although he declined to say when.”

Clearly no one in this case is “saying when.”  Which we in the legal economy call “a win-win,” of course.

COICA: Big IP supersizes it

Ron Coleman's LIKELIHOOD OF CONFUSION®Everything I’ve written about here for the last five years, or just about everything, is about to get a lot worse, explains David Post:

Congress is set to once again consider the Sen Leahy’s Combating Online Infringements and Counterfeit Act, a truly awful bill (with the appropriately awful acronym “COICA” . . . ). I have written a (relatively brief) “Law Professors’ Letter in Opposition,” which now has about 35 signatories, which you can read here. [There’s a summary of the bill’s provisions in the Letter — and the full text of the current version is posted here]

The bill would allow the Attorney General to institute an in rem action against the domain name of any Internet site “dedicated to infringing activities” — defined to include any site that “engages in” copyright or trademark-infringing activities where those activities, “taken together,” are “central to the activity” of the site. The court would then be authorized to issue injunctions — not against the offending website, but against “the domain name” itself — ordering the domain name registrar where the target site’s domain name was registered, and the domain name registry responsible for maintaining the authoritative database of names for the target site’s top-level domain, to “lock out” the domain name (and therefore prevent access to the site through use of the domain name). The court could also enjoin any of the thousands of Internet Service Providers, or any “operator of a nonauthoritative domain name server” (a category that includes virtually all ISPs or operators of networks linked to the Internet), ordering them to “take technically feasible and reasonable steps designed to prevent [the] domain name from resolving to that domain name’s Internet protocol address.”Ron Coleman's LIKELIHOOD OF CONFUSION®

It’s awful on many fronts. It would allow a court to effectively shut down a site operated out of Brazil, or France, without any adversary hearing (unless, I suppose, “the domain name” itself comes into court to argue the case) or any reasoned determination that the site actually is engaged in unlawful activity. There is a name for that in our law: “prior restraint,” and we don’t like them — even in cases where truly compelling governmental interests are at stake, let alone where the purpose is merely to protect the rights of copyright and trademark owners.

The fact is, these proposals are reactions to real problems.  But in typical piggy fashion, Big IP wants to use a sledgehammer where perhaps some fine carpentry would do.

Now learning how to build things right — even radically different things, but things that will stand up — takes hard work, diligence and practice, and not just everyone can be a cabinet maker.  The IP enforcement community, however, is flummoxed.   They don’t want to spend the money on craftsmanship; they want the big, wide problem of IP enforcement to be amenable to solution by journeymen.  This reaction is understandable, considering how expensive the work of master can be — and often, how little there can be to show for it.

Consider, for example, Gibson Dunn & Crutcher:  As elite a litigation department as you can think of (unless perhaps you’re in Montana, but who cares about flyover country?) and leaders in IP-enforcement litigation.  What has this leadership achieved for its clients? Read More…

Not a good e-discovery strategy

Originally posted 2007-02-08 16:29:54. Republished by Blog Post Promoter

Lavi Soloway writes (hat tip to Above the Law) regarding the extremely un-white-shoe discrimination litigation in New York County between former Sullivan & Cromwell associate Aaron Charney and the law firm, including this astonishing bit:

Last Wednesday January 31 there was a secret settlement meeting at which Charney was offered an undisclosed sum in return for which he promised, among other things, to destroy the hard drive on his personal, home computer. The destruction of that hard drive moved to the center of the debate. Aaron Charney has been ordered to submit an affidavit to the court regarding the hard drive and the status of documents that were allegedly in his possession.

Judge Fried also ordered Aaron Charney to produce his personal, home hard drive at 9:30 a.m tomorrow morning, if, in fact, is has not been destroyed. Fried was particularly concerned that Charney seems to have destroyed the hard drive (which would presumably have contained emails he sent to him self from his Sullivan and Cromwell account with client documents and other firm related documents attached) AFTER being ordered by Judge Ramos at an earlier hearing not to do so. It appeared that Charney destroyed the hard drive becuase S&C asked him to do so as a condition of settlement.

This would be astonishing, indeed. You don’t even need the new, improved and annoying e-discovery rules in the federal courts, nor do you need to be a litigator, to know what a bad, bad idea that was.

Both parties may have a lot of explaining to do. Sweeter it does not get!

UPDATE: S&C promises plenty of explaining. They’ve got your explaining right here. ($5 Million?!)