Recently in Intellectual Property Law Category

In an action alleging that defendant drug manufacturers conspired to maintain a monopoly in the market for desmopressin acetate tablets, dismissal of the complaint is reversed where: 1) plaintiffs' antitrust claim could stand on the citizen petition theory without raising questions of patent law; 2) plaintiffs had standing to raise Walker Process claims for patents that were already unenforceable due to inequitable conduct; and 3) plaintiffs sufficiently pled scienter on the part of defendants.

Read In re: DDAVP Direct Purchaser Antitrust Litig., No. 06-5525

Appellate Information

Argued: September 15, 2008

Decided: October 16, 2009

Judges

Opinion by Judge Walker

Counsel

For Appellants:

David F. Sorensen, Daniel Berger and Daniel C. Simons, Berger & Montague, P.C., Philadelphia, PA

For Appellees:

Douglas L. Wald, William J. Baer, Barbara H. Wootton, Arnold & Porter LLP, Washington, DC

In an action for misappropriation of trade secrets against credit reporting agencies engaged in the practice of permitting lenders competing with plaintiff to purchase pre-screened consumer reports containing "trigger leads" compiled by plaintiff, dismissal of the action is affirmed where: 1) the Fair Credit Reporting Act preempted state law claims based on pre-screened reports; and 2) plaintiff failed to identify the legal basis for defendants' alleged duty and obligation to maintain the confidentiality of trigger leads.

Read Premium Mortgage Corp. v. Equifax, Inc., No. 08-5317

Appellate Information

Argued: March 9, 2009

Decided: October 5, 2009

Judges

Per Curiam

Counsel

For Appellant:

Louis B. Cristo, Trevett Cristo Salzer & Andolina, P.C., Rochester, NY

For Appellees:

David Cooper, Jones Day, New York, NY

Christopher R. Lipsett and David Sapir Lesser, Wilmer Cutler Pickering Hale & Dorr LLP, New York, NY

In a copyright infringement action, an order finding that LAUNCHcast, a music webcasting service that provides users with individualized internet radio stations, did not constitute an interactive service under 17 U.S.C. 114(j)(7) is affirmed where: 1) a user could not request a particular song on demand through defendant's service; and 2) defendant's service did not provide a program specially created for the user.

Read Arista Records, LLC v. Launch Media, Inc., No. 07-2576

Appellate Information

Argued: March 17, 2009

Decided: August 21, 2009

Judges

Opinion by Judge Wesley

Counsel

For Appellants:

Hadrian R. Katz, Arnold & Porter, LLP, Washington, DC

For Appellee:

Michael S. Elkin, Winston & Strawn LLP, New York, NY

In an action for trademark infringement, false designation of origin, and dilution under the Lanham Act, district court's dismissal for failure to state a claim is vacated and remanded where plaintiff's allegations that Google's recommendation and sale of plaintiff's mark to its advertisers triggers the appearance of plaintiff's advertisements and links in a manner likely to cause consumer confusion when a Google user launches a search of plaintiff's trademark, adequately pleads a use in commerce and is a proper claim under the Lanham Act.   

Read Rescuecom Corp. v. Google, Inc., No. 06-4881

Appellate Information
Appeal from the United States District Court for the Northern District of New York.
Argued: April 3, 2008
Decided: April 3, 3009
Errata Opinion: July 28, 2009

Judges
Before: LEVAL, CALABRESI, WESLEY, Circuit Judges.
Opinion by LEVAL, Circuit Judge.

Counsel
For Appellant: Edmund J. Gegan, Rescuecom Corporation, Syracuse, New York.

For Appellee: Michael H. Page, Keker & Van Nest, LLP, San Francisco, California.

In a trademark infringement action, district court order issuing a preliminary injunction enjoining defendant from selling plaintiff's trademarked products with the unique production code removed is affirmed where district court correctly found that plaintiff was likely to succeed on the merits in its contention that defendant's sales of its products with the UPC removed constituted trademark infringement, as the UPC codes play an important role in controlling quality and helping the trademark owner guard against counterfeits and protect the reputation of the mark.   

Read Davidoff v. CVS Corp., No. 07-2872

Appellate Information
Appeal from the United States District Court for the Southern District of New York.
Argued: October 15, 2008
Decided: June 19, 2009
Errata Opinion filed: July 14, 2009

Judges
Before: LEVAL, KATZMANN, and LIVINGSTON, Circuit Judges.
Opinion by LEVAL, Circuit Judge.

Counsel
For Plaintiff: Lisa Pearson, Kilpatrick Stockton LLP.

For Defendant: Megan Muoio, Allyn & Fortuna LLP. 

In a trademark dispute involving Austrian liquor, district court order granting defendants motion to dismiss for improper venue is reversed and remanded where the subject matter of plaintiff's claims is not covered by the forum selection clauses contained in the licensing agreement as plaintiff's claims do not sound in contract and are not based on rights originating from the licensing agreement.    

Read Altvater Gessler-J.A. Baczewski Int'l Inc. v. Sobieski Destylarnia S.A., No. 07-2273

Appellate Information
Appeal from the United States District Court for the Southern District of New York.
Argued: September 22, 2008
Decided: July 13, 2009

Judges
Before: WESLEY, HALL, and GIBSON, Circuit Judges.
Opinion by GIBSON, Circuit Judge.

Counsel
For Plaintiff: Christopher L. Deininger

For Defendant: Jamie D. Underwood

In a trademark infringement action based on Defendant's sales of Plaintiff's trademarked products with the unique production code removed, a preliminary injunction in favor of Plaintiff is affirmed, where the production codes play an important role in helping the trademark owner to guard against counterfeits and protect the reputation of the mark.

Read Zino Davidoff SA v. CVS Corp., No. 07-2872-cv.

Appellate Information

Argued: October 15, 2008
Decided: June 19, 2009

Judges

Before: LEVAL, KATZMANN, and LIVINGSTON, Circuit Judges.
Opinion by LEVAL, Circuit Judge.

Counsel

LISA PEARSON (Christopher Lick, on the brief; Adam H. Charnes and W. Andrew Pequignot, of counsel), Kilpatrick Stockton LLP, New York, NY, for Plaintiff-Appellee.

MEGAN MUOIO (Nicholas Fortuna, on the brief), Allyn & Fortuna LLP, New York, NY, for Defendant-Appellant.