Intellectual Property Law News - U.S. Eleventh Circuit
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Florida Virtual School is an online charter high school authorized by statute. It has been around for more than a decade. A few years back, apparently unsatisfied with FLVS's performance, the state opened up the door to private competitors, including K12 Inc., which calls itself Florida Virtual Academy. 

FLVA, which after its pilot program got picked up, also adopted the alternative moniker Florida Virtual Program (FLVP), and which purchased a sponsored listing on FLVS.com (a seemingly cyber-squatted alternative to FLVS's .net address), also maintains a website which has a similar design and color scheme to the elder FLVS program.

FLVS predictably sued FLVA in 2011 for trademark infringement under the Lanham Act and Florida common law, but ran into one tiny issue: incompetent Florida lawmakers.

Solvay, since acquired by Abbott Laboratories (and renamed AbbVie), makes a topical testosterone cream, which is protected by a patent until 2020 and has brought in $1.8 billion in revenue. Like many pharmaceutical companies, it sought to protect its product from an invasion of generic clones. It did so by filing a lawsuit.

That lawsuit settled after Solvay agreed to kick back proceeds from their sales to the now-abstaining generic producers. That may sound quite a bit like anti-competitive behavior, and if your alarms went off, you're in tune with the FTC. The problem is, these "reverse payment" arrangements are perfectly legal under existing law, as part of the right to exploit one's patent.

Court opinions can be dry, making reading through a stack of them an arduous task. That’s why we’re thankful for judges like Ed Carnes who constantly spice up their opinions with inspired, sometimes bizarre, quotes and references.

This year, our favorite Eleventh Circuit jurist quoted Bob Dylan, added a new line to a Jim Croce song, and made a particularly apt reference to turducken. To wit: Judge Carnes’ top three quotes of 2012.

Courts Says Bama Mugs are 'Mundane Products', Not Protected

Southern football fans love their college teams so much that there’s a market for realistic renderings of famous moments in college sports. Daniel Moore has made a career out of painting those moments, but he’s been battling his muse in court over the last seven years regarding his right to paint her.

In an intellectual property decision this week regarding Moore’s artwork and products featuring original images of University of Alabama sporting events, the Eleventh Circuit ruled that the Bama can’t use threats of copyright infringement to stop Moore from painting the Crimson Tide football team.

Eleventh Circuit Affirms Pay-for-Delay, Quotes Biggie Smalls

We generally don't get terribly excited about Federal Trade Commission (FTC) litigation, but the Eleventh Circuit Court of Appeals achieved the impossible this week: It literally made us laugh out loud while reading an anti-trust opinion.

The case, which examined a pharmaceutical pay-for-delay deal, is Federal Trade Commission v. Watson Pharmaceuticals, Inc., et al.

New ProView Brings Lawyers and iPads Together

If you've been looking for an excuse to purchase an iPad, Thomson Reuters has your solution.

It's an app called Thomson Reuters ProView, and it allows you to access handy legal tools, like codes and court rules, from your iPad. It's the type of product that -- in our lawyering days -- would have only existed in a parallel science-fiction universe.

So why is ProView better than accessing the same information on your laptop, or using a book?

Email is Proof in Coca-Cola Copyright Lawsuit

Cautionary tale: If your client files a copyright lawsuit against a major corporation and loses, he could be stuck paying a small fortune in attorney’s fees.

Rafael Vergara Hermosilla sued Coca-Cola Company for copyright infringement, claiming that Coca-Cola used his Spanish adaptation of a song in its advertising without his permission. The district court ruled that Vergara had assigned his copyright interest in the adaptation to Universal Music Latin America, which in turn had assigned its rights to the adaptation to Coca-Cola.

The Eleventh Circuit Court of Appeals recently affirmed the decision.

Baby Buddies, Inc. v. Toys "R" Us, Inc., No. 08-17021, involved an action alleging that Toys R Us's pacifier holder infringed plaintiff's copyright in its own similar pacifier holder.  The court of appeals affirmed summary judgment for defendant on the grounds that 1) the parties created distinctly different designs from an aesthetic perspective; and 2) no reasonable jury could conclude that the pacifier holders were substantially similar at the protected level.

Brown v. R.J. Reynolds Tobacco Co., No. 08-16158, concerned an action seeking compensatory and punitive damages from cigarette manufacturers under theories of strict liability, breach of express warranty, breach of implied warranty, civil conspiracy to fraudulently conceal, fraudulent concealment, negligence, and loss of consortium.

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In US v. Cruz, No. 09-11418, an action by the government seeking to enjoin defendants from operating as tax return preparers, the court of appeals vacated the district court's order finding that defendants had engaged in deceptive practices in preparing tax returns and issuing an injunction specifically prohibiting them from further engaging in any such conduct, but declining to completely bar them from operating as tax return preparers or require them to notify their clients of the injunction (as the government requested), holding that the district court failed to give any reasons for rejecting the request to compel defendants to notify their customers of the court's injunction.

In Allen v. Sec'y, Fla. Dep't of Corr., No. 09-13217, the court of appeals affirmed the denial of habeas relief in capital proceedings, holding that 1) petitioner failed to convince the court that any of the undisclosed lab reports at issue were favorable to the defense at all; 2) the state collateral trial court's decision that counsel did not perform deficiently was not contrary to or an unreasonable application of Strickland; and 3) counsel was not ineffective for failing to request a Frye hearing before the state's DNA evidence was admitted.

In Tana v. Dantanna's, No. 09-15123, a trademark infringement action concerning two restaurants, situated on opposite sides of the country, that shared very similar names, the court of appeals affirmed summary judgment for defendant on the ground that plaintiff did not adduce sufficient evidence giving rise to a genuine issue of material fact on the issue of likelihood of confusion or defendants' knowing appropriation of his likeness.

In US v. Belfast, No. 09-10461, the court of appeals affirmed defendant's convictions and sentence for committing numerous acts of torture and other atrocities in Liberia between 1999 and 2003, during the presidency of his father, Charles Taylor, holding that 1) the United States validly adopted the Convention Against Torture pursuant to the President's Article II treaty-making authority, and it was well within Congress's power under the Necessary and Proper Clause to criminalize both torture, as defined by the Torture Act, and conspiracy to commit torture; 2) both the Torture Act and the firearm statute apply to extraterritorial conduct; and 3) it was the totality of the circumstances, not simply the length of time that passed between the event and the statement, that determines whether a hearsay statement was an excited utterance.

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Trademark Infringement Action Concerning Auto Sales

Caliber Automotive Liquidators, Inc. v. Premier Chrysler, No. 08-16179, concerned a trademark infringement action involving service marks related to advertising promotions for car dealerships.  The court of appeals reversed summary judgment for defendant, on the grounds that 1) plaintiff proffered competent summary judgment evidence of actual confusion of the car dealerships, the relevant purchasing population; and 2) the mark at issue had attained federal incontestible status, and thus the district court erred in holding that the mark was not entitled to strong protection.

As the court wrote:  "Caliber Automotive Liquidators, Inc. provides advertising promotions to car dealerships and owns service marks on "Slash-It! Sales Event" and "Slasher Sale." Premier Automotive Group uses its own marketing - an infomercial called the "Slasher Show" - to sell cars. Caliber sued Premier in the Northern District of Georgia under both federal and state law, claiming infringement. The district court granted Premier summary judgment, holding that no reasonable jury could find a likelihood of confusion between Caliber's marks and Premier's advertising. Caliber appealed. Persuaded that the district court erred in its measure of confusion of Caliber's customers by Premier's advertising and in the weight it gave an incontestible mark, we reverse and remand."

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