Recent Intellectual Property Law Decisions

In plaintiff's copyright infringement action against defendant who had hired him to take photos of the "Thomas & Friends" toy train characters for use in promotions, district court's dismissal of his complaint is reversed where: 1) the photos qualify for the limited derivative-work copyright provided by section 103(b) as plaintiff's artistic and technical choices combine to create a two-dimensional image that is subtly but nonetheless sufficiently his own; and 2) district court erred in concluding that plaintiff needed defendant's permission to copyright the photos, as there is nothing in the Copyright Act requiring the author of a derivative work to obtain permission to copyright his work from the owner of the copyright in the underlying work.     

Read Schrock v. Learning Curve Int'l, Inc., No. 08-1296

Appellate Information

Appeal from the United States District Court for the Northern District of Indiana, Eastern Division

Decided November 5, 2009

Judges

Before:  Flaum, Sykes, and Williams, Circuit Judges

Opinion by Sykes, Circuit Judge

In plaintiff's section 43(a)(1)(B) of the Lanham Act suit against defendants involving oral laxative drug and over-the-counter versions of the drug manufactured by defendants, district court's dismissal of plaintiff's complaint without prejudice is affirmed as the FDA is conducting a proceeding to determine whether defendants' drugs are misbranded now that there is an over-the-counter version of the drug.   

Read Schering-Plough Healthcare Prod., Inc. , No. 09-1438

Appellate Information

Appeal from the United States District Court for the Eastern District of Wisconsin

Decided October 29, 2009

Judges

Before:  Posner, Flaum, and Rovner, Circuit Judges

Opinion by Posner, Circuit Judge

In a trademark infringement case involving interpretation of a trademark licensing agreement of plaintiff's "VO5" trademark, and Japanese trademark law, district court's judgment in favor of the plaintiff, and orders enjoining the defendant from using the variant mark, and terminating the licensing agreement to return all the licensed trademarks to the plaintiff is vacated and remanded as under Japanese trademark law, the term senyoshioken, which the district judge refused to give the meaning of to the jury, means exclusive-use right where the license holder not only has an exclusive right to use the licensed trademarks within the geographical scope of the licensed trademarks but can sue infringers of the trademarks in its own name.   

Read Sunstar, Inc. v. Alberto-Culver Co. , No. 07-3288

Appellate Information

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division

Decided October 28, 2009

Judges

Before:  Posner, Manion, and Evans, Circuit Judges

Opinion by Posner, Circuit Judge

In a copyright infringement action, summary judgment for plaintiff is reversed and remanded for summary judgment in favor of defendant where plaintiff and her bandmate qualified as co-authors of the song in question, as they intended to be joint authors of the song at the time the work was created and they both contributed independently copyrightable material. 

Read Janky v. Lake County Convention and Visitors Bureau, No. 07-2350

Appellate Information
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division.
Argued October 28, 2008
Decided August 3, 2009

Judges
Before BAUER, RIPPLE, and EVANS, Circuit Judges.
Opinion by EVANS, Circuit Judge.
RIPPLE, Circuit Judge, dissenting.

In a trademark dispute, district court judgment is affirmed in part and reversed in part where: 1) the court properly granted summary judgment for plaintiff as defendant missed the deadline for responding to a request for admissions, and the Italian judgment in defendant's postdates the American one, and thus cannot be pleaded as res judicata; and 2) the court erred in awarding lost profits and statutory damages, as the lost profits are compensatory damages, and statutory damages may be awarded only in cases in which compensatory damages are not awarded for the same violation.    

Read Gabbanelli Accordians & Imports, L.L.C. v. Ditta Gabbanelli Ubaldo Di Elio Gabbanelli, No. 08-1569

Appellate Information
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Argued: January 21, 2009
Decided: July 30, 2009

Judges
Before POSNER, FLAUM, and WOOD, Circuit Judges.
Opinion by POSNER, Circuit Judge.

In an action for fraudulent inducement and breach of contract, district court judgment against defendants is affirmed where: 1) defendant's failure to file a postverdict motion under FRCP Rule 50(b) forfeited all of their claims regarding insufficiency of the evidence; and 2) the court did not abuse its discretion when instructing the jury during the damages phase; and 3) the defendants failed to properly preserve an objection to the court's decision to not give the Party-In-Interest jury instruction during the liability phase of the trial.    

Read Consumer Products Research & Design, Inc. v. Jensen, No. 07-2599

Appellate Information
Appeal from the United States District Court for the Western District of Wisconsin.
Argued September 16, 2008
Decided July 15, 2009

Judges
Before CUDAHY, FLAUM and ROVNER, Circuit Judges.
Opinion by ROVNER, Circuit Judge.