The United States Supreme Court Will Soon Determine Whether Private Parties Can Bring Lanham Act Claims Challenging a Juice Label on Products Regulated By the FDA

By Travis Burch - 27th March 2014

This spring many food and beverage companies are tracking a case to be decided in the US Supreme Court.  The Ninth Circuit decision now before the Supreme Court is, Pom Wonderful, LLC  v. The Coca-Cola Company, 679 F.3d 1170 (9th Cir.  2014).   The case dealt with Lanham Act violations regarding food and beverage labeling.  The case was initiated by POM Wonderful (“POM”) against Coca-Cola in the Central District of California in 2008. FACTUAL BACKGROUND POM produces, markets, and sells bottled...

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Ninth Circuit Clarifies That Cancellation of a Registered Trademark is a Remedy and Not a Stand Alone Claim in Victoria’s Secret Lawsuit

By Travis Burch - 18th March 2014

INTRO In Airs Aromatics, LLC v. Victoria’s Secret Stores Brand Management, Inc., 2014 U.S. App. LEXIS 3865 (9th Cir. 2014),  a purported common law trademark owner appealed the dismissal of its trademark cancellation claim.  The District Court’s judgment dismissing the action with prejudice was affirmed because the purported trademark owner did not appeal the dismissal of the only claims it brought that could support jurisdiction.  Lanham Act § 37, 15 U.S.C.S. § 1119 did not provide an independent basis for...

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Plaintiff Sanctioned For Spoliation In Google/YouTube Patent Infringement Lawsuit in the Northern District of California.

By Travis Burch - 19th February 2014

INTRO Plaintiff dodged a bullet in the case of Personal Web Technologies, LLC v. Google, Inc. and YouTube, LLC, C13-01317 (N.D. Cal. February 13, 2014) by only being sanctioned legal fees for the Defendants’ discovery and motion efforts regarding Plaintiff’s spoliation of emails.  However, the order demonstrates that even post-Zubalake, many businesses and their counsel are unaware of the spoliation trap regarding e-discovery.  It further highlights how a disgruntled former employee can wreak havoc in ongoing litigation.  Often times, even...

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Supreme Court Reverses Federal Circuit and Reaffirms Rule that On a Declaratory Judgment Action for Patent Invalidity of Non-infringement Patentee Still has Burden of Persuasion on Infringement.

By Travis Burch - 29th January 2014

On January 22, 2014, applying what it referred to as “simple legal logic resting upon settled case law” SCOTUS reversed the Federal Circuit and reaffirmed the rule regarding who carries the burden of persuasion in a declaratory judgment action for patent non-infringment /invalidity.  Notwithstanding the fact that plaintiff patent licensee was depositing disputed royalty fees into an escrow account, defendant patentee must prove infringement, just as it would had it asserted a patent infringement suit as a plaintiff.  Medtronic, Inc....

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California Minority Shareholders Can Allege Cause of Action to Rescind Merger In Common Control Scenario But Not Money Damages

By Travis Burch - 21st January 2014

Dissenting shareholders of a California Corporation can never sue for damages for breach of fiduciary duties against the controlling shareholders based on a merger, acquisition or buyout.  Instead, California Corporations Code Section 1312 (a), limits redress to the remedy of an appraisal, which can take into account any breach by corporate insiders and adjust the stock value according to equitable principles.  However, Section 1312 (b) confers a dissenting shareholder with the right to sue for a rescission of a completed...

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Ninth Circuit Determines Non-Existence of Contributory CyberSquatting Claims

By Travis Burch - 30th December 2013

In Petronas v., Inc., (9th Cir. 2013) 2013 U.S. App. LEXIS 24115, the Ninth Circuit affirmed the District Court’s grant of summary judgment in an action under the Anti-cybersquatting Consumer Protection Act (“ACPA”), holding that the ACPA does not provide a claim for contributory cybersquatting. Plaintiff Petroliam Nasional Berhad (“Petronas”) is a Malaysian oil and gas company that owns a registered trademark to the name “PETRONAS”.  It alleged that, a domain name registrar, engaged in contributory cybersquatting by...

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If Ownership Is Crux Of a Copyright Dispute Then Three Year Period Accrues When Ownership is Expressly Repudiated By Co-Owner or Party in Close Relationship

By Travis Burch - 16th December 2013

  In your typical copyright infringement case, each infringing act causes a new claim to accrue and an action may be brought for all acts accruing within three years preceding the filing of the suit.  However, in Seven Arts Filmed Entertainment Limited v. Content Media Corporation, (9th Cir. 2013) 733 F.3d 1251, the Ninth Circuit held that regardless of the form of the suit, if ownership is the gravamen of the dispute, the three year statute of limitations accrues upon...

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Federal Subpoena Rules Amended

By Travis Burch - 9th December 2013

On December 5, 2013, changes to Federal Rule of Civil Procedure 45 went into effect.  The changes seek to simplify what were an otherwise disparate cobbling of various FRCP sections regarding subpoena compliance and enforcement.   The goal is to avoid gamesmanship and hyper-technical “gotcha” litigation tactics.  The following are a bullet point summary of the five changes to be aware of: 1.    Subpoenas Now Issued From Court Where Suit is Pending and Can Be Served Nationwide. The new rule provides that all subpoenas...

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Uncapped CAM Charges Result In Fraud Suit

By Travis Burch - 2nd December 2013

The case of Thrifty Payless, Inc. v.  The Americana At Brand, LLC, (2013) 218 Cal.App.4th 1230 illustrates that there is a lot more to commercial lease negotiations other than the rent.  The case is noteworthy for both commercial landlords and commercial tenants.  The appellate court found statements made during lease negotiations actionable under a fraud claim even though there was a fully integrated written lease agreement superseding the negotiations. Plaintiff Thrifty is a tenant at Defendant’s Brand Shopping Center in...

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Bad Boy Litigation Tactics Result In $8.4 Million Attorneys’ Fees Award

By Travis Burch - 25th September 2013

SUMMARY In Monolithic Power Systems, Inc. v. O2 Micro International Limited, (Fed Cir. 2013) 2012 U.S. App. LEXIS 16691, the Federal Circuit affirmed a Northern California District Court judge’s exceptional case order under 35 U.S.C.S. § 285, which granted Monolithic Power Systems $8.4 million in attorneys’ fees from O2 Micro.  Of note, most of the attorneys’ fees accrued in parallel ITC proceedings. PROCEDURAL BACKDROP For more than a decade, competitors Monolithic Power Systems (“MPS”) and O2 Micro (“O2) were embroiled...

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