5th Circuit Intellectual Property Law News - U.S. Fifth Circuit
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WWE Can Get Court Order to Bust Counterfeiters Near Superdome

Can you get a court order against nobody in particular? Apparently so, if this Fifth Circuit ruling is any indication.

World Wrestling Entertainment, like all entertainment entities, battles bootleggers. Bootleggers sell merchandise on tables in the street near WWE events. Determining the identities of these pop-up bootleg shopkeepers is nearly impossible in advance, so the WWE sought a blanket order that would basically cover anyone within "broad geographic and temporal limits," the district court noted.

According to The Hollywood Reporter, the lower court wasn't convinced, but the Fifth Circuit, noting that nobody except the WWE itself has the right to peddle its merchandise, reversed and sent the case back to the court to settle other pressing issues, like whether Stone Cold Steve Austin can body slam bootleggers through their tables.

Will Venue Decision Make Texas Less Appealing to Patent Trolls?

Texas. It's the land of steak, pick-up trucks, football, and for far too long, patent holding companies and trolls.

The Eastern District of Texas's high success rate for patent holders (57.5 percent, per a recent study [PDF] by PricewaterhouseCoopers) and decently high rankings for median damages and time to trial, are just some of the reasons why non-practicing entities (NPEs, or patent trolls) love incorporating in Texas and bringing suit in that district. Other reasons include judges' frequent deferral to juries on patent issues (meaning trials happen often, rather than summary judgment) and reticence to grant venue transfers.

That last habit may change, however, after the Federal Circuit applied the Fifth Circuit's venue transfer rule, one that is far, far more friendly to defendants than the standard initially applied by the trial court in the Eastern District of Texas.

MoveOn.org is being hauled into federal court for allegedly using Louisiana's motto on a billboard criticizing Gov. Bobby Jindal.

Lt. Gov. Jay Dardenne filed a federal suit against MoveOn.org in his official capacity as both lieutenant governor and commissioner of the Louisiana Department of Culture, Recreation and Tourism claiming that the advocacy group used the state's service mark and motto without permission, reports The Times-Picayune.

Can a political billboard crib a state's motto like that?

Laches? Unclean Hands? It's All Greek to the Fifth Circuit

If you were ever in a fraternity or a sorority, you probably received a paddle. It’s part of the Big Bro/Little Bro, Big Sis/Little Sis tradition. The “Little” makes or buys a paddle for the “Big.”

If you purchased a paddle after 1961, you may have bought it from today’s Fifth Circuit litigant: Thomas Abraham.

Yes, folks; we have officially located the most frat-tastic opinion ever published by the Fifth Circuit Court of Appeals. (Phi Chi Chi Alpha, if you will.)

Evan Stone Gets 'EFF'-ed Up in Porn Copyright Trolling Sanctions

Copyright trolling seems to be a decent business model, until a court starts imposing sanctions. And woe is the attorney on the receiving end of those sanctions, according to a recent Fifth Circuit Court of Appeals opinion.

Attorney Evan Stone represents Mick Haig, a company which produces pornographic films. Their copyright infringement lawsuit — which lead to attorney sanctions against Stone — is at the root of this appeal.

Honey Badger Does Care About a Cease and Desist Notice

They're common refrains heard 'round Tigerland thanks to a star cornerback and a hit YouTube video.

"Honey Badger takes what he wants."

"Honey Badger don't care."

But according to the Louisiana State University (LSU) Compliance Office, Honey Badger does care.

DMCA Copyright Infringement Case, and Immigration Matter

In Bokhari v. Holder, No. 09-60538, a petition for review of the BIA's determination that petitioner was ineligible for adjustment of status, the court denied the petition where 1) the employment authorization provided to petitioner under 8 C.F.R. section 274a.12(b)(20) did not provide him with lawful immigration status; and 2) petitioner was in unlawful immigration status, as defined in 8 C.F.R. section 1245.1(d)(1)(ii), after June 10, 2003, and he unlawfully remained in the United States for more than 180 days thereafter.

Duval Wiedmann, LLC v. InfoRocket.com, Inc., No. 09-50787

In Duval Wiedmann, LLC v. InfoRocket.com, Inc., No. 09-50787, an action for breach of a patent license agreement, the court affirmed summary judgment for defendant where the district court correctly held that the agreement terminated on November 29, 2004, sixty days after plaintiff received actual notice of termination. However, the order is remanded where the district court did not address what royalties, if any, were owed to plaintiff over a certain time period.

MGE UPS Sys., Inc. v. GE Csmr. & Indus. Inc., No. 08-10521, involved plaintiff's appeal from the district court's Fed. R. Civ. P. 50(a) dismissal of its Digital Millennium Copyright Act (DMCA) claim, and defendants' cross-appeal from the damages and injunctive relief awarded against them.  The court of appeals affirmed in part on the ground that plaintiff failed to show that bypassing its "dongle" infringed a right protected by the Copyright Act, because the dongle merely prevented initial access to the software at issue.  However, the court reversed in part, holding that 1) the district court erred in denying defendant's Rule 50(a) motion on plaintiff's copyright infringement claims because plaintiff failed to show damages under section 504(b) of the Copyright Act; and 2) defendants did not have the burden of demonstrating which portions of their revenue were not attributable to plaintiff's state law unfair competition claims.

As the court wrote:  "MGE UPS Systems, Inc. ("MGE") appeals the district court's Federal Rule of Civil Procedure 50(a) dismissal of its Digital Millennium Copyright Act ("DMCA") claim against Power Maintenance International, Inc. ("PMI");  General Electric Company ("GE");  GE Consumer and Industrial, Inc.;   and GE Industrial Systems, Inc. (collectively, "GE/PMI").   MGE also appeals the district court's denial of prejudgment interest on MGE's damages award.   GE/PMI cross-appeals on four grounds:  (1) whether the district court erred in dismissing GE/PMI's Rule 50(a) motion because MGE failed to present evidence of damages, or in the alternative, whether the district court erred in dismissing GE/PMI's Rule 50(b) motion because the $4.6 million jury award was not a reasonable calculation of damages;  (2) whether MGE impermissibly double-recovered damages;  (3) whether the parties had a tolling agreement in place that permitted MGE to recover damages prior to December 17, 2001;  and (4) whether the district court erred in granting MGE injunctive relief against GE/PMI."

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Plus Rulings in Administrative, Bankruptcy and Civil Rights Cases

Castro v. US, No. 07-40416, concerned an action under the Federal Tort Claims Act (FTCA) alleging that the government's negligence caused the wrongful deportation of plaintiff's son.  The court of appeals affirmed the dismissal of the action on the ground that the government was protected from suit by 28 U.S.C. section 2680(a), the discretionary function exception of the FTCA.

In re: Velocita Worldwide Logistics Inc., No. 09-10416, involved an appeal from the district court's judgment affirming the bankruptcy court and declining to imply a right of contribution among defendants who agreed to be jointly and individually liable for a payment as part of the settlement agreement for a state tort action.  The court of appeals affirmed, on the ground that the obligations in the instant settlement agreement were not analogous to the obligations in surety and guaranty agreements, the contractual arrangements in which Texas courts had allowed contribution claims against co-obligors.

In re: Moore, No. 09-10604, concerned a creditor's appeal of the district court's affirmance of the bankruptcy court's approval of a settlement of estate claims over creditor's objection and despite its offer to purchase the claims for higher value.  The court of appeals reversed, holding that the claims at issue could be sold as well as compromised, and the bankruptcy court's failure to consider the effect of such a sale was an abuse of discretion.

Amazing Spaces, Inc. v. Metro Mini Storage, No. 09-20702, involved an action alleging infringement of a star design that plaintiff claimed as a service mark.  The court of appeals affirmed summary judgment for defendant, on the grounds that 1) the record evidence was replete with similar or identical five-pointed stars, both raised and set in circles, and used in similar manners, such that--notwithstanding the residual evidence of the presumption of validity--no reasonable jury could find that the star symbol was even a mere refinement of this commonly adopted and well-known form of ornamentation; and 2) plaintiff failed to raise a fact issue regarding the existence of secondary meaning with respect to the symbol.  However, the court reversed in part, on the ground that plaintiff had not yet had the opportunity to introduce evidence relating to its trade dress claims.

La Union Del Pueblo Entero v. Fed. Emergency Mgmt. Agency, No. 09-40948, concerned the Federal Emergency Management Agency's (FEMA) appeal from the district court's preliminary injunction requiring FEMA to publish standards that complied with 42 U.S.C. section 5174(j).  The court of appeals vacated the injunction, holding that plaintiffs merely complained that the regulations lacked specificity, not that FEMA wholly abdicated its responsibility to promulgate regulations, or promulgated regulations that directly contravened the statutory language.

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