Discussion of pleading standards in SDNY re trademark infringement and/or breach of a license agreement and/or fraud.
Decision Houbigant Breach Contract Fraud Infirngment
From our continuing series of trademark cases involving garnishes, here is a memo of law from the owner of the SCALA mark for giardiniera, a pepper-based sauce for meatball and sausage sandwiches. Plaintiff believes that it terminated defendant as licensee. Defendant states on its website that it purchased the giardiniera business from plaintiff.
Memo Tro Scala License Termination
Playboy sues divorce lawyer/former columnist/former Playboy model, for filing application for LAWYER OF LOVE (name of her Playboy column). I would assume LAWYER OF LOVE was a generic term for trademark lawyer. Defendant owns a registration for the mark LIFE’S SHORT, GET A DIVORCE. Background here.
Complaint Lawyer of Love Playboy
Plaintiff, movie distributor (The Weinstein Company), attempts to obtain exclusive license to distribute movie. It emails producer “We confirm that we accept your offer.” Producer immediately emails back “we’re going over the terms, we’ll get back to you.” (my paraphrase). Then producer does the deal with a different distributor. Distributor attempts to argue either (1) exclusive license created by oral communications, or (2) emails constitute written contract.
Held: The oral communications can’t create a binding transfer of an exclusive copyright license as there has to be a signed writing, as per the statute of frauds in the Copyright Act. The emails don’t create a transfer as defendant clearly and immediately indicated that it was not yet willing to enter into the contract.
Bonus footnote 4: Defendant argued that plaintiff couldn’t make the ‘oral transfer’ argument as it had taken a contrary legal position in another lawsuit. Held: ‘Judicial Estoppel’ exists not when a party argues a certain position in another proceeding but when a tribunal adopts that position.
Decision Twc Oral Copyright
I agree with Prof Goldman and Prof Volokh on this one: this is an excellent intro to true everyday cyber law: website customer has payment dispute with website developer so developer ‘seizes’ the site. Contracts, conversion and copyright discussed.
For soccer and contracts fans:
Tampa Bay Rowdies Complaint
. . . here is a blurb indicating that the 9th Circuit held that a clause waiving cell phone customer’s rights to bring a class action was unconscionable and unenforceable. HT Venkat.
Smoking Gun discusses Van Halen’s contractual demands that there be no brown M&Ms supplied to it. It had nothing to do with M&Ms.