Intellectual Property Law

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...

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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...

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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...

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