Start with a famous mark such as ROLL ROYCE, have defendant copy it, have defendant not show up, have two plaintiffs awarded $1 million each.
Decision Rolls Royce Default
SDNY: Motion to transfer granted following ‘first to file’ rule. Discussion as to what extent a Declaratory Judgement filed in response to a demand letter will not be recognized as a first filing.
Decision Motion to Transfer First to File
I Will Be Part of a Panel on Fan Fiction and Mash-Ups At The Copyright Society Lunch in Manhattan This Wednesday
Plaintiff (represented by friend of the blog John Welch) sues New Balance alleging infringement in trade dress of lacrosse helmet.
Complaint Sports Helmet
Laughing in the face of death, Heart Attack Grill sues Heart Stoppers (both are burger restaurant) for infringing use of ‘high caloric food, medically themed’ burger. Both places offer quadruple burgers, have wait-staff wearing nurses uniforms, etc. Both places allow people over 350 to eat free. Heart Attack Grill seems to have only one location (iin Arizona) and defendant seems to be only in Florida, so there may be a question as to whether there is trans-fat in the dawn donuts.
Is there a public policy issue here? Coming to the table of equity with greasy hands?
Complaint Heart Attack Grill
Dead celebrities have lobbied NY state senators to introduce S06790, a bill to amend NY civil rights law to add a 70 year post-mortem right to prevent the use of the persona of a deceased personality. The ghost of Marilyn Monroe may have been among the lobbyists, because Section 12 of the bill seems to reverse the outcome of this case, that held that Marilyn Monroe’s estate, and CMG, the estate’s agent, couldn’t enforce post-mortem rights in NY, if we ever got them, because you cannot devise what doesn’t exist when the will is written.
Drawing of Marilyn Monroe ghost from here.
Law Firm reprented Plaintiff in a prior trademark litigation. Plaintiff sues Defendant, one of Law Firm’s other clients, and Law Firm is retained to represent Defendant. Plaintiff moves to disqualify Law Firm arguing that either (1) Law Firm concurrently represents Plaintiff as a result of the prior litigation; or (2) this suit is substantially related to the prior litigation and Law Firm obtained confidential information about Plaintiff relevant to the current litigation.
Held: 1. This is not a concurrent representation. Law Firm’s retainer agreement with Plaintiff had clearly limited the engagement to that litigation (practice pointer: your retainer agreements should be labeled as UNBUNDLED SPECIFIC RETAINERs and specifically defie the engagement). Even in the absence of a ‘dis-engagement letter,’ the representation had ended because the matter had settled. Despite the fact that the bad guy in the prior litigation could theoretically breach the settlement agreement in the future; and that LAW FIRM was identified as an agent for notice of breach; and that Law Firm had done de minimis work for Plaintiff other than the prior litigation; this simply wasn’t an on-going representation.
2. This matter was not substantially related to the prior representation (different trademark).
3. Law Firm had not access to confidential information that was relevant to this proceeding. Law Firm’s ‘alleged insgiht into its former client’s general litgation thinking is not similarity’ for purposes of this analysus. There was some dispute as to how much Plaintiff had previously disclosed to Law Firm. Plaintiff’s witness’ testimony was not well-received.
Decision Pryor Representation