Tag Archives: Trials

The litigation of art

Originally posted 2010-11-09 10:15:18. Republished by Blog Post Promoter

Raymond J. Dowd of the Copyright Litigation BlogRaymond J. Dowd, author of the Copyright Litigation Blog (and much else!), sent along this note by email concerning  a case that would probably interest to mamy LIKELIHOOD OF CONFUSION® readers.  Because he is a man of discretion and high ethical standards, he is not blogging about it — but I can!  With his permission (okay, how high can his standards be if he takes my calls?) I’m reproducing the whole thing here verbatim, but have added a couple of links.

The Second Circuit has scheduled oral argument on December 8 at 10 a.m. at the U.S. Courthouse 9th Floor Ceremonial Courtroom at 500 Pearl Street in a case called Grosz v. Museum of Modern Art. My firm, together with co-counsel Rowland & Petroff, represents the heirs of George Grosz who are appealing a decision of the U.S. District Court for the Southern District of New York. My Dunnington partners Thomas V. Marino and Luke McGrath are counsel on the brief. David Rowland and Patricia Hertling of Rowland & Petroff are also on the brief. It is a major case and I will be arguing for the appellants before a three-judge panel. As in Bakalar v. Vavra the Grosz Heirs are supported by a serious and scholarly amicus brief supporting reversal written by Professors Edward McGlynn Gaffney of Valparaiso University School of Law and Jennifer Anglim Kreder of the Salmon P. Chase School of Law, Northern Kentucky University who are the nation’s leading legal experts in this area. The learned Amici are, in turn, a veritable “Who’s Who” in Holocaust scholarship, education, law and history and include the American Jewish Congress and the Commission for Art Recovery.

MoMA is represented by Charles S. Sims of Proskauer Rose LLP. Proskauer and Mr. Sims represented the Republic of Austria in Altmann v. Austria. Mr. Sims recently argued before the U.S. Supreme Court and obtained a reversal of a Second Circuit decision in Reed Elsevier v. Muchnick.

The facts as set forth below were confirmed by an expert report prepared by Dr. Jonathan Petropoulos, the world’s leading expert in Nazi art looting cases, which expert report was proferred in support of our requests to obtain discovery into MoMA’s documents relating to Alfred Flechtheim.   Read More…

Other people’s money

Originally posted 2011-01-10 16:45:16. Republished by Blog Post Promoter

Statue and column, First Department CourthouseWSJ.com’s Law Blog reports about the seven-figure effect in the Central District of California for a one-minute-late filing:

A judgment in favor of [Morrison & Foster’s] client was entered on Sept. 26, giving Toshiba’s attorneys 14 days – until Oct. 10 – to file their attorneys-fees motion. Here are the relevant paragraphs straight from Judge Cormac Carney’s opinion. For anyone trying to meet a filing deadline, they might make your choke on your Cheerios:

[Toshiba’s] purported reason for its delay is that its courier was caught in traffic at 3:30 in the afternoon in Santa Ana, California. Mr. Mersel, attorney for [Toshiba], asserts that he waited until 3:14 p.m. on the last day of the filing period to deliver the motion to Morrison & Foerster’s regular courier service. Mr. Mersel asserts that although he was aware that the filing deadline was 4:00 p.m., he had “never had a problem with getting papers filed by 4:00 p.m. when delivering them to the attorney service” forty-five minutes in advance. The courier, Mr. Moskus, swiftly responded to Mr. Mersel’s request, leaving on his motorcycle for the courthouse at approximately 3:30 p.m. Unfortunately, Mr. Moskus encountered “unusually heavy traffic” and had to “wait at the railroad crossing on Grand Avenue for a long train to pass.” Consequently, Mr. Moskus arrived at the Courthouse after the office had closed [at exactly 4 PM] and Mr. Mersel was unable to file the motion until the following day, on October 11, 2007.

These circumstances, however regrettable, do not meet the standard for “excusable neglect.” Although the delay was not lengthy and it does not appear that [defendant] was prejudiced by it, the reason for the delay was entirely within [Toshiba’s] control and [Toshiba] has not offered a good faith reason for the delay.

Concluded the judge: “[T]he entirely foreseeable obstacle of traffic in Southern California in the late afternoon . . . cannot justify an enlargement of time.”

This is preposterous. Read More…

Book ’em, Dan-o!

Historic courthouse, Essex County (Newark) NJThere really is still such a thing as personal jurisdiction — and its absence — even in the Internet age, reports Evan Brown:

Last year Facebook made us wonder if it had gone off its meds when it filed a trademark infringement lawsuit against Illinois-based Teachbook.com. More than one commentator thought Facebook was being overzealous in its efforts to claim exclusivity in the term “book” for social networking services.

However one countenances the action, the court has shut the cover on the first chapter. The U.S. District Court for the Northern District of California (where Facebook is located) held that it lacked personal jurisdiction over the Illinois defendant. So it dismissed the case.

There is a Constitution out there, still!

Also:  kudos to Evan for demonstrating the proper use of the word “however” as the first word in a sentence.  (Same thing like I said about the Constitution!)

 

Emerson InSinkErator trash compactors will mangle your hand if you stick it in one of them.

Originally posted 2006-10-19 13:44:39. Republished by Blog Post Promoter

Sounds like a reasonable assertion, right? The same thing will happen if you stick your hand into an Acme trash compactor. It’s just bad practice. Who could be offended by that?

Insinkerator

Emerson Electric could (links added):

COMPANY SUES NBC FOR DEFAMATION
Emerson Electric is suing NBC over a scene in their new series “Heroes” that featured the company’s garbage disposal, according to an CNN Money article. The first episode showed one of the characters (whose superpowers include indestructibility) stuffing her hand down the disposal and getting it mangled, although within a few seconds her hand was fully healed.

However, Emerson, makers of the “InSinkErator,” believes the scene gratuitously showed their product as being dangerous. Their suit alleges that the program “implies an incorrect and dangerous design for a food waste disposer,” and “casts the disposer in an unsavory light, irreparably tarnishing the product.” They are reportedly asking the court to order NBC to “remove Emerson trademarks from future broadcasts of the show and also seek damages suffered from NBC’s acts of “unfair competition, trademark infringement, and trademark dilution.”

A spokesman for Emerson pointed out data showing that not only are you 10 times more likely to suffer harm from your dishwasher, but any injuries suffered in the event of a disposal accident would not be nearly as severe as those shown in the TV episode.

You can’t say “unbelievable” any more, because nothing is. But on the face of it, this sounds mighty flimsy — “trademark use,” anyone? — and an abuse of the Lanham Act that may be sanctionable. Decide for yourself and let me know what you think: Here’s the amended complaint.

The suit was filed in St. Louis, where Emerson is based.

UPDATE:  Stupid claim settled.  Of course.

Best of 2009: “Infinity Dollars” — IP damages and the jury, Part 1

JuryA lot of people, including judges, lawyers and civilians, don’t seem to really understand what statutory damages are all about.  They are not supposed to be a windfall (discussed more here).  But just tell that to the jury that awarded “infinity dollars” — practically — to the Lords of Music for what was indeed knowing copyright infringement of two dozen songs, and to the person on whose head the jury just laid that award.

I’m not an “information wants to be free” nutter, and musical compositions aren’t “information” anyway except to the most heartless utilitarian, but Stan Schroeder (presumably no nutter either, but probably to my left on this issue) hits it right on the head:

Ten Years of LIKELIHOOD OF CONFUSION®

In one of the most ridiculous verdicts I’ve seen, the jury decided that Jammie Thomas-Rasset, the first woman who was charged with copyright infringement and offered to settle but decided to fight the RIAA, is guilty and owes the recording industry 1.92 million dollars, or $80,000 per song.

As we mentioned in our original article, Jammie’s case was full of holes, and she probably would have done better if she had just settled with the RIAA. But what’s striking here is the amount of money awarded to the recording industry for infringing the copyright for just one song.

Read More…

Best of 2008: Fool’s gold

Crystal Energy Reading, Horatio StreetPosted on November 16, 2008.

The Internet changes everything right? Not this: A fool and his money — especially the kind paid to consultants — are still soon parted:

Pre-Internet, lawyers would do their best to flesh out the backgrounds of people who might sit in the jury box. “We used to drive by the juror’s house and take a picture just to get a snapshot of, who is this human being?” recalled Robert Hirschhorn, a Dallas-based attorney and jury consultant.

Yet picking the panel whose judgment could send a client to prison or direct the disposition of millions of dollars often came down to intuition. Today, for a growing number of attorneys who want to take the guesswork out of the process, a Web search is a required first stop.

In one recent patent case he consulted on, Hirschhorn says an Internet search revealed that a potential juror owned a business helping beauty pageant contestants find costumes. According to her Web site, she wouldn’t sell certain clothing lines because the designs were patent-protected — “a gold nugget,” he said. “It told us she understood the value of proprietary information.”

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

It told you that, did it, Robert? Some patent! What did you charge for that brilliant advice? Did this gold nugget tell you perhaps her confusion between patents and copyrights or something else that may or may not govern what clothing lines she could sell could hurt your client rather than help it? Did it tell you whether and how much she perhaps resented not being able to sell those “patent-protected” clothing lines “because of some legal technicality”?

Did it tell you anything useful at all? It gets better: Read More…

Best of 2008: Someone dropped in an extra zero, right? RIGHT?

Posted on October 16, 2008.

It’s a month-old story, and how it got past us here notwithstanding, it’s not getting past us now.  Per the ABA Journal, remember the Bratz litigation?  Well, you haven’t read half of it yet:

Two toy companies battling for rights to the Bratz dolls-with-attitude have racked up legal fees of at least $93 million in the case.

MGA Entertainment has spent $63 million in fees since 2004 defending a lawsuit by Mattel Inc. that contended the doll’s designer conceived of the idea before leaping from Mattel to MGA, the Daily Journal reports (sub. req.). Plaintiff Mattel has spent $30 million in just the first half of the year, the story says.

Mattel was awarded $100 million in the case, far short of the more than $2 billion in damages it had sought.

The Daily Journal got MGA’s figures in a lawsuit it filed against its insurers seeking full payment of the Bratz fees, while the publication got the Mattel figure from a stock analyst.

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

The ABA item quotes a Jones Day litigation partner who is flummoxed at the idea that there is any conceivable way to get to $93 million for a trademark case, even over the course of four years.  We sure are, too.  And re-read this ‘graph: Read More…

Best of 2008: No Social Networking Privilege

On Point reports that a New Jersey federal magistrate has, to the surprise of no actual attorney I could imagine, ruled that MySpace and Facebook postings and other social networking communications are discoverable in civil litigation.

A New Jersey judge has allowed an insurance company being sued for denying benefits to children with eating disorders to conduct a “cyber-investigation” into the children’s postings on social networking websites.

Such investigations are becoming more common in lawsuits and U.S. Magistrate Judge Patty Shwartz’s decision isn’t likely to calm the fears of privacy advocates. The potential injury to the children from disclosure of their postings, she ruled, did not outweigh Horizon Blue Cross Blue Shield of New Jersey’s need for the information.

Shwartz is handling discovery issues in two insurance coverage cases brought against Horizon by the parents of children suffering from anorexia or bulimia. The cases are Beye v. Horizon and Foley v. Horizon.

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

“The Court will require production of entries on webpages such as ‘MySpace’ or ‘Facebook’ that the beneficiaries shared with others,” Shwartz said in a Dec. 14 order.

According to a Seattle TV station, Chrysler has taken a similarly intrusive approach by requesting access to the MySpace account of a woman who is suing the auto giant over injuries suffered in an auto accident. Marissa Schneider’s MySpace page includes an admission that she smoked pot in the past.

“To say that anything posted on MySpace is gospel is ludicrous and it really paves the way for you to say, ‘I can never post anything on this site because it’s going to be used against me,'” her attorney told KING 5 News.

I’d consider sanctioning that attorney if he admitted making such a stupid and, really, contumaceous remark.

Read More…

Best of 2006: Side by side comparison doesn’t decide likelihood of confusion

Dooney & Bourke’s pattern

Originally posted on July 11, 2006.

This is an important decision: The Second Circuit Court of Appeals has partially reversed the earlier ruling of the U.S. District Court for the Southern District of New York (full decision here) in Louis Vuitton Malletier v. Dooney & Bourke, Inc.

Here’s the “money quote” as a once-great blogger taught me to say (citations and internal quotes omitted; link added) :

We turn next to the question of likelihood of confusion. . . . The similarity of the marks is a key factor in determining likelihood of confusion. To apply this factor, courts must analyze the mark’s overall impression on a consumer, considering the context in which the marks are displayed and the totality of factors that could cause confusion among prospective purchasers.’ The district court here noted that there were “obvious

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

similarities” between the Louis Vuitton and Dooney & Bourke handbags. However, it determined that despite the similarities, the two marks were not confusingly similar. It appears the trial court made the same mistake that we criticized in [the] Burlington Coat Factory [decision]: inappropriately focusing on the similarity of the marks in a side-by-side comparison instead of when viewed sequentially in the context of the marketplace.

The district court reasoned:

Read More…

Not a good e-discovery strategy

Sullivan and Cromwell bookLavi 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?!)

UPDATE:  Settled.