Trade Identity
Federal Circuit
In re 1800Mattress.com IP, LLC
2009-1188
Trademark Trial and Appeal Board
Is the purported service mark MATTRESS.COM unregistrable as generic under 15 U.S.C. § 1091(c) for “online retail store services in the field of mattresses, beds, and bedding” given the two-step genus of goods or services inquiry set forth at H. Marvin Ginn Corp. v. Int’l Ass’n of Fire Chiefs, Inc., 782 F.2d 987 (Fed. Cir. 1986)?
Trade Identity
Federal Circuit
The Cold War Museum, Inc. v. Cold War Air Museum, Inc.
2009-1172
Trademark Trial and Appeal Board
In view of British Seagull Ltd. v. Brunswick Corp., 28 USPQ2d 1197 (TTAB 1990) and 37 C.F.R. § 2.122(b), as well as the presumption of validity for issued registrations, was registrant in a cancellation proceeding required to formally resubmit evidence of acquired distinctiveness during the proceeding to avoid cancellation on 15 U.S.C. § 1052(e)(1) grounds given its service mark THE COLD WAR MUSEUM was only granted registration after registrant had provided the Office with substantial evidence showing five years of exclusive and continuous use in commerce under Section 2(f) due to the mark’s acknowledged lack of inherent distinctiveness?
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Copyright Infringement
Seventh Circuit
Schrock v. Learning Curve International, Inc.
2008-1296
USDC ND Illinois
On motion for summary judgment, was a professional photographer entitled to copyright his photos of defendants’ products and sue defendants on these derivative works for copyright infringement after the defendant product rightsholder and its licensee had continued to promote the photos in their advertising and on their product packages following termination of the photographer’s services for defendants, given Seventh Circuit jurisprudence under Gracen v. Bradford Exchange, 698 F.2d 300 (7th Cir. 1983)?
Derivative Works Displayed on Product Packaging
Copyright Infringement
Sixth Circuit
Bridgeport Music, Inc. v. UMG Recordings, Inc.
2007-5596
USDC MD Tennessee
Was fragmented literal similarity and thus copying determinable as a matter of law, and was a jury which had found willful copyright infringement and awarded statutory damages properly instructed regarding the questions of willfulness and the tributary fair use defense, where defendants merely had used the phrase “bow wow wow, yippie yo, yippie yea” as well as repeated the word “dog” in a low tone of voice at regular intervals along with the sound of rhythmic panting on defendants’ hip hop song “D.O.G. in Me” and these salient elements appear in plaintiffs’ original funk composition and recording musical work “Atomic Dog”?
Software Amortization
Federal Circuit
Teknowledge Corp. v. United States
2009-5053
USCFC
On motion for summary judgment, does Federal Acquisition Regulation § 31.201-4 operate to disallow a developer of software for secure transactions over the Internet from allocating the developer’s commercial development costs to its government overhead pool for amortization purposes where the United States government was allegedly an indirect beneficiary of the development work but the software in question did not pertain to a specific government contract and the government did not purchase the software?
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Non-exclusive Patent License
Federal Circuit
Imation Corp. v. Koninklijke Philips Electronics, N.V.
2009-1208, -1209
USDC Minnesota
Under New York contract law, does the appearance of “hereafter” in the definitions section of a non-exclusive patent license agreement, viz. “now has or hereafter obtains the right to grant the licenses within the scope of this Agreement”, indicate a single, unitary grant of a license or, instead, an agreement to grant multiple licenses over time to new subsidiaries as they are formed, according to Filmtec Corp. v. Allied-Signal Inc., 939 F.2d 1568 (Fed. Cir. 1991) and DDB Tech., L.L.C. v. MLB Advanced Media, L.P., 517 F.3d 1284 (Fed. Cir. 2008)?
Trade Identity
Seventh Circuit
Schering-Plough Healthcare Products, Inc. v. Schwarz Pharma, Inc.
2009-1438, -1462, -1601
USDC ED Wisconsin
Was the district court judge correct to dismiss without prejudice a Lanham Act, 15 U.S.C. § 1125(a)(1)(B) action pending the outcome of a United States Food and Drug Administration decision as to whether generic drug labels and package inserts that display “Rx only” and “a prescription only laxative” for polyethylene glycol 3350, which is not necessarily dispensed prescription-only, had violated the agency’s strictures against mislabeling and thus the Lanham Act as well? (J. Posner)
Exclusive Trademark License
Japanese Senyoshiyoken
Seventh Circuit
Sunstar, Inc. v. Alberto-Culver Co.
2007-3288, -3289, 2008-3835, -3836, 2008-3931, 2008-3936
USDC ND Illinois
Did the district court err by refusing to ascribe a definitive meaning for the jury in respect of the Japanese technical legal term “senyoshiyoken,” which connotes a type of exclusive trademark license and its appurtenant rights, where the fully paid up, 99-year, English-language license agreement contained a right of termination in the event the Japanese licensee modified one of the licensed marks and the licensee had, in fact, “modernized” a subject mark? (J. Posner)
Copyright
Sixth Circuit
Bridgeport Music, Inc. v. Universal-MCA Music Publishing, Inc.
2008-5254, 5255-73
USDC MD Tennessee
On second appeal, had the district court erred by denying the requests of defendant record and music publishing companies that attorney fees be imposed as a condition of granting plaintiffs’ motion to voluntarily dismiss without prejudice related copyright infringement cases pursuant to Fed. R. Civ. P. 41(a)(2)?
Patent
Antitrust
Second Circuit
In re DDAVP Direct Purchaser Antitrust Litigation
2006-5525
USDC SD New York
Was the district court correct to dismiss a class action for lack of standing where plaintiffs alleged inter alia Sherman Act § 2 monopolization, Walker Process fraud in procuring a patent on desmopressin acetate (DDAVP) tablets, improprer listing of the DDAVP patent in the United States Food and Drug Administration’s Orange Book, and sham infringement litigation against generic competitors to compel payment of monopolistic drug prices?