Recently in Intellectual Property Law Category

In an action seeking a declaratory judgment that plaintiff's acquisition of the vericheck.com domain name did not constitute trademark infringement or cybersquatting, judgment against plaintiff is vacated and remanded where the district court's factual decision that the "VeriCheck" mark was a distinctive, legally protectable mark under the ACPA and federal trademark law was based in part on reasoning contrary to federal trademark law and based in part on reasoning that could support the district court's conclusion.

Read Lahoti v. VeriCheck, Inc., No. 08-35001

Appellate Information

Argued and Submitted March 9, 2009

Filed November 16, 2009

Judges

Opinion by Judge Gould

Counsel

For Appellant:

Derek A. Newman, Randall Moeller, and John Du Wors, Newman & Newman, Attorneys at Law, LLP, Seattle, WA

For Appellee:

Shannon M. Jost and Aviva Kamm, Stokes Lawrence, P.S., Seattle, WA

In a copyright, trademark, and trade dress infringement action, judgment as a matter of law for defendant on copyright and trade dress infringement claims is affirmed where: 1) defendant did not timely move for judgment as a matter of law, but the time limit under Fed. R. Civ. P. 50(b) is not jurisdictional; and 2) plaintiff failed to demonstrate that defendant had access to plaintiff's copyrighted works or that plaintiff's trade dress had acquired secondary meaning.

Read Art Attacks Ink, LLC v. MGA Entmt. Inc., No. 07-56110

Appellate Information

Argued and Submitted December 9, 2008

Filed September 16, 2009

Judges

Opinion by Judge Pregerson

Counsel

For Appellant:

Michael W. Quade, Quade & Associates, San Diego, CA

For Appellee:

Craig Holden, MGA Entertainment, Inc., Van Nuys, CA

In a copyright infringement action, denial of defendant's motion to dismiss for improper venue is affirmed where defendant would be subject to personal jurisdiction in the Northern District of California if that district were treated as a separate state, and thus venue was proper in that district.

Read Brayton Purcell LLP v. Recordon & Recordon, No. 07-15383

Appellate Information

Argued and Submitted October 21, 2008

Filed August 5, 2009

Judges

Opinion by Judge Nelson

Counsel

For Appellant:

Jacob D. Zamora, Law Office of Jacob D. Zamora, Marysville, CA

For Appellee:

David W. Fermino, Brayton Purcell LLP, Novato, CA

In a challenge to state legislation reducing payments to certain medical service providers under the Medi-Cal program, a preliminary injunction in favor of Plaintiffs is affirmed, where the state failed to rely on responsible cost studies in determining the effect of the rate cuts.

Read Indep. Living Ctr. v. Maxwell-Jolly, No. 08-56422

Appellate Information

Argued and Submitted February 18, 2009

Filed July 9, 2009

Judges

Opinion by Judge Smith

In a trademark infringement action involving the enzyme-based dietary supplement Wobenzym, the District Court's preliminary injunction requiring Defendant to cease selling a dietary supplement is affirmed in part, where Defendant did not meet its burden to prove that Plaintiff ceased production of the supplement; but vacated in part, where a District Court must find a substantial risk of danger to the public or other special circumstances in order to enter an interlocutory order recalling a product in a trademark infringement case.

Read Marilyn Nutraceuticals, Inc. v. Mucos Pharma GBMH & Co., No. 08-15101

Appellate Information

Argued and Submitted October 20, 2008

Filed July 2, 2009

Judges

Opinion by Judge Thomas

Counsel

For Appellant:

Maria Salapska, Law Offices of Maria Salapska, PLLC, Phoenix, AZ

Paul M. Levine, McCarthy Holthus Levine, Phoenix, AZ

For Appellee:

Paul F. Donahue, K&L Gates LLP, Chicago, IL

Jason M. Marks, Bell, Boyd & Lloyd LLP, Chicago, IL

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In an appeal from an order granting attorney's fees to Defendant following Plaintiffs' voluntary dismissal of their copyright lawsuit, the order is reversed where, because Plaintiffs remained free to refile their copyright claims, they were not "prevailing parties" and thus were not entitled to attorney's fees.

Read Cadkin v. Loose, No. 08-55311

Appellate Information

Argued and Submitted May 8, 2009

Filed June 26, 2009

Judges

Opinion by Judge Fisher.

Counsel

For Appellants:

Marty O'Toole, Law Offices of Marty O'Toole, Los Angeles, CA

For Appellees:

Sandra Levin, Colantuono & Levin, P.C., Los Angeles, CA

Michael A. Morguess, Colantuono & Levin, P.C., Los Angeles, CA

In an action under the Telephone Consumer Protection Act for sending unsolicited text messages, summary judgment for Defendant is reversed, where a genuine issue of material fact existed concerning whether the equipment used by Defendant had the capacity to store or produce numbers to be called using a random or sequential number generator and to dial such numbers.

Read Satterfield v. Simon & Schuster, Inc., No. 07-16356.

Appellate Information

Appeal from the United States District Court for the Northern District of California. Claudia Wilken, District Judge, Presiding
Argued and Submitted February 11, 2009--San Francisco, California
Filed June 19, 2009

Judges

Before: John T. Noonan, David R. Thompson and N. Randy Smith, Circuit Judges.
Opinion by Judge N.R. Smith.

Counsel

John G. Jacobs, The Jacobs Law Firm, Chtd., Chicago, Illinois, for the plaintiff-appellant.

Peter L. Winik and Barry J. Blonien, Latham & Watkins LLP, Washington, DC, for the defendants-appellees.