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.
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?
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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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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Latimer v. Roaring Toyz, Inc., No. 08-16665, concerned a copyright infringement action by a professional photographer against multiple defendants regarding the distribution and publication of photographs of a customized motorcycle. The court of appeals affirmed summary judgment for defendants in part, holding that plaintiff granted defendant an implied license to use his work. However, the court reversed in part on the ground that, even if plaintiff agreed that defendant could distribute his photographs to the media in a printed flyer, the distribution of the photographs in digital format on compact discs could be found to have exceeded the scope of the license.
In US v. Santiago, No. 09-10466, the court of appeals vacated defendant's firearm possession sentence, which the government appealed. The court held that a guilty plea followed by a sentence of probation and a withholding of adjudication qualified under Florida law as a predicate conviction for the purpose of enhancing defendant's sentence under the Armed Career Criminal Act.
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The Eleventh Circuit decided two cases today, one involving a copyright infringement action, and the other concerning an immigration matter.
In Utopia Provider Sys., Inc. v. Pro-Med Clinical Sys., L.L.C., No. 09-11160, plaintiff filed a copyright infringement action based on defendant's alleged misappropriation of plaintiff's paper templates. The district court granted summary judgment to defendant and dismissed plaintiff's state law claims without prejudice.
The court of appeals affirmed, holding that the selection and arrangement of the terms in the paper template did not convey information and was not sufficiently original to qualify for copyright protection.
Diallo v. U.S. Atty. Gen., No. 08-16507, involved a petition for review of the BIA's order removing petitioner from the U.S., following the denial of petitioner's asylum application.
The Eleventh Circuit granted the petition on the ground that a credible death threat made in person by one with the ability to carry out that threat rose to the level of persecution.
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In an action for cybersquatting on a domain name identical to the name of plaintiff's product, summary judgment for Defendant is affirmed where 1) the district court did not err in denying plaintiff leave to amend its complaint, because it waited to file a motion to amend its complaint with information it had known over a month before when it filed a motion for summary judgment; and 2) plaintiff failed to show that defendant had a bad faith intent to profit from using the domain name.
Read Southern Grouts & Mortars, Inc. v. 3M Co., No. 08-15850
Appellate Information
Filed July 23, 2009
Judges
Per Curiam
In an action alleging that Defendant misused Plaintiff's Internet domain names and website to promote his solo medical practice, judgment for Plaintiff is affirmed in part, where a reasonable jury could find that Defendant made misrepresentations in a copyright registration application; but reversed in part, where the District Court erred in determining that Plaintiff could not recover damages under both the Anticybersquatting Consumer Protection Act and the Lanham Act.
Read St. Luke's Cataract & Laser Inst., P.A. v. Sanderson, No. 08-11848
Appellate Information
Filed July 9, 2009
Judges
Opinion by Judge Hull
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