After months of discussions, DC Comics, a unit of Time Warner’s Warner Bros., filed a lawsuit today against Los Angeles-based attorney Marc Toberoff in an attempt to protect rights to its lucrative “Superman” property.
Warner Bros. filed the suit in federal court in Los Angeles after months of trying and failing to settle with heirs of the “Superman” creators, whom Toberoff represents.
Plaintiff is in the septic-tank cleaning business (with a ‘green’ marketing approach). When applying for a residential mortage, he provided confidential documents about his business to a mortgage broker,. The mortgage broker apparently likes what he sees and goes into the ‘green’ septic-tank cleaning business himself. Plaitniff sues on a ‘host’ of causes of action, including breach of fiduciary duty, trademark, copyright and trade secret (the tm and (c) causes arose from allegations that the websites were similar).
After what sounds like bitter and unpleasant motion practice, defendant moves for partial summary judgment which the district court grants and then, sua sponte the Court dismissed the remaining causes. Plaintiff simply provided no evidence that Defendants used the confidential information to steal plainiff’s customers, etc. (and what Defendant did use was easily available to all, for example, the identity of a large supplier). Second Circuit has now affirmed.
There are two broad schools of thoughts on information disclosure: paranoid and open, and they’re both sort of proven right here. The idea that even your mortgage broker will drop everything and compete with you confirms the worst fears and keeps the NDA business thriving – and keeps entrepreneurs from taking meetings with people who could help them. These are the sort of entrepreneurs who want to foreclose competition through the ownership of proprietary information (or who believe that they don’t possess the resources to execute the idea which is the situation with my idea for jet-packs).
To me, the open school is exemplified by a quote I’m mis-remembering from Paul Hawken of Smith and Hawken, which is “Don’t worry about someone stealing your idea; no one can steal the precise way that you will execute your idea.” If that’s too airy-fairy for you, consider entrepreneur/VC Chris Dixon’s argument in favorable of openess entitled “Why You Shouldn’t Keep Your Startup Idea Secret.” He argues that the benefits of discussing the idea outweighs the risks of disclosing it. Read the whole post but I’ll repeat the ‘money’ quote:
Even if your idea gets in the wrong hands, they will probably just get the high level “elevator pitch” which isn’t worth much anyways. Hopefully by that time you’ve developed the idea much further and in much greater detail – by talking to as many people as possible.
I say that this case confirms the open school worldview because the defendant prevailed, seeming to suggest the limits of proprietary information as a barrier to entry. Defendant appears to have taken a broad idea: “Green septic tank cleaning is a good business” and apparently has not taken any protectable trade secret information. And he was not foreclosed from competing with Plaintiff. In other words, you can’t keep your business a secret, deal with it.
Now bear in mind that I too am talking about disclosure at the ‘elevator ptich’ level, not two high-tech companies working on a joint venture. Given my profession, I’m well aware that there is copyrightable, patentable and trade secret information, and that it can be valuable, and that it can be stolen.
Oh, one more thought about mortgage applications and the like – redaction.
Decision Biosafe Idea Disclosure
The UDRP only deals with cybersquatting in the second level domain of a gTLD, so the owner of the mark HOT RUSSIAN BRIDES will fail on the first prong of a UDRP against JIMSLIST.COM, even if the registrant uses the path name JIMSLIST.COM/AGENCIES/HOTRUSSIANBRIDES (and even if the UDRP panel believes that complainant has a perfectly good trademark infringement action). And if the purpose of filing the UDRP was to merely to uncloak the true registrant by naming the proxy service as the defendant, well, that might not work either. On the other hand, registrant claims that it stopped the complained-of behavior.
Decision Udrp Hot Russian Brides
Caliber produces SLASH IT sales events for auto dealerships. It has an incontestable registration for SLASH IT! SALES EVENT and another registration for SLASHER SALE. It provides materials and training, including ‘energizing’ for a dealer’s salesmen, so that they can ‘histrionically’ slash prices in front of customers. Defendant produced SLASHER SHOWS infomercials to sell cars. Defendant prevailed at summary judgment.
11th Circuit: District Court erred in not considering incontestable status of SLASH IT! SALES EVENT registration, nor did it properly consider evidence of actual confusion. Remand to trial.
Decision Caliber v Premier Slash It
Ten songs but one album, one compilation, one statutory damage award.
Decision Bryant v Media Right
This is an interesting case. Plaintiff makes copyrighted blank forms that companies fill out when they make EDGAR filings with the SEC pursuant to the Exchange Act. Defendant downloads completed versions of the forms from EDGAR and sells them. Plaintiff sued for copyright infringement.
First, it seems that this is a case of first impression as to the interplay between the Exchange Act and the Copyright Act. After deciding that it is unlikely that the Exchange Act intended to gut all rights under the Copyright Act, just some of them, the Court goes on to deny a preliminary injunction. While Plaintiff made out a prima facie case of infringement, the Court notes that this is not going to be a slam-dunk case, but, importantly, Plaintiff was not able to make out a showing that it suffered irreparable harm from defendant selling completed copies of its form. Thus this would likely have turned out the same way post-Salinger.
Decision Intl Swaps v Socratek
Plaintiff owns rights in Damon Runyon’s work entitled “Madame la Gimp.” The movies “Lady For A Day” and “Pocketful of Miracles” were based on it. Plaintiff alleges that the movie “Singh Is Kinng” infringes.
Complaint Singh is King
Orlando Magic center Dwight Howard was fined $35,000 on Wednesday after criticizing officials on his blog DwightHoward.com for posting the following:
“I’m not looking to say anything to get myself in trouble with the league, but I just don’t see other star players getting called for fouls the way I get them,” Howard wrote on his blog. “No star player in the league is outta games the way I am.”