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Sixth Circuit Strikes Down FCC's Municipal Broadband Ruling

The FCC met with defeat in the Sixth Circuit recently when that court ruled that states could limit municipal broadband networks in towns in rural Tennessee and North Carolina.

The effect of the appellate ruling means that some parts of the two states must continue on with internet access that does not qualify as broadband. Slower internet speeds are the norm for many rural residents in that area -- a reality that some had hoped to change.

Just like the verse-chorus-verse structure of classic pop music, federal litigation follows a predictable formula, one that courts don't like litigants rearranging. This point was highlighted in a recent kerfuffle between two karaoke companies, Slep-Tone and Karaoke Kandy Store.

Not only were these two out of pitch with each other -- Slep-Tone accused Karaoke Kandy Store of trademark violations -- they could not get into beat with the courts, as the Sixth Circuit was forced to stay Slep-Tone's appeal for coming in before its cue.

$5M Award Upheld for Coach in Trademark Infringement Lawsuit

Counterfeit sellers are not the only ones on the hook for trademark infringement. The facilitators like flea markets operators are also liable, according to the Sixth Circuit.

The Sixth Circuit upheld a jury award to Coach of over $5 million for trademark infringement. A Memphis flea market operator was held contributorialy liable for its vendors who sold counterfeit Coach products violating trademarks. The jury awarded Coach $240,000 per mark for a total of 21 infringed marks.

Maker's Mark Red Wax Seal Not Functional, Just a Pretty Face

The Sixth Circuit Court of Appeals ruled on Wednesday that Maker's Mark Distillery, Inc.'s registered trademark for its red dripping wax seal is enforceable because it lacks aesthetic functionality.

The court also concluded that defendant Diageo's Case Cuervo tequila bottles featuring a similar red wax seal were likely to cause confusion in the marketplace.

Sony is 'King of the Road' in Roger Miller Music Rights Lawsuit

The Sixth Circuit Court of Appeals ruled this week that Sony owns the rights to "King of the Road" singer Roger Miller's 1964 song catalog, reversing a lower court ruling that Miller's widow owned the renewal rights to songs.

Courts had previously ruled that Sony owned the rights to Miller's songs from 1958 to 1963; this latest Roger Miller music ruling strikes a district court judgment awarding Mary Miller $900,000 in damages.

A Tale of Two Marks: Maker's Mark and the Red Wax Trademark

It was the best of times and the worst of times for Maker's Mark attorney Edward Colbert last week as he argued that the Sixth Circuit Court of Appeals should uphold a 2010 district court order giving the bourbon brand exclusive use of the dripping red wax seal for which its bottles have become known.

Defendant-Appellant Diageo introduced Jose Cuervo Reserva tequila bottles with similar red wax seals into the North American liquor market in 2001, prompting Maker's Mark to file a trademark infringement lawsuit. Diageo's attorneys have argued that the red wax seal would not cause consumers to confuse their tequila with Beam's bourbon because -- really -- who could ever confuse tequila and bourbon?

That argument did not seem to persuade the panel.

US v. Cecil, 08-5080, concerned a challenge to the district court's conviction of a former police officer for drug related offenses and imposition of a 144-month sentence.  In affirming both the conviction and the sentence, the court held that the district court did not err in rejecting defendant's Batson challenge as defendant has failed to meet his burden of demonstrating purposeful discrimination on the part of the government.

  • In Bloemker v. Laborers' Local 265 Pension Fund, No. 09-3536, the Sixth Circuit faced a challenge to the district court's dismissal of plaintiff's claims in plaintiff's suit against his employer-sponsored ERISA plan an actuary, alleging breach of contractual agreement and other claims, arising from a notice of reduction in his monthly retirement benefits due to an incorrect calculation and requiring him to repay the excess he had received for nearly two years.  

    In affirming in part and reversing in part the judgment of the district court, the court first held that the dismissal of plaintiff's equitable estoppel claim is reversed as he has alleged facts that could fulfill the requirements of traditional elements of estoppel.  However, the court affirmed the dismissal of plaintiff's claim for breach of fiduciary duty against the defendants, as well as the plaintiff's contract claim as the district court was correct to conclude that plaintiff cannot recover benefits under section 1132 of ERISA based on a modification of the plan or a separate supplemental contract. 

    R.C. Olmstead, Inc. v. CU Interface, LLC, No. 09-3428, concerned a challenge to the district court's grant of summary judgment in favor of the defendant in a copyright and trade secret infringement suit brought by a provider of credit union software against the developer of a competing credit union software. 

    In affirming the district court's decision, the court held that the district court did not abuse its broad discretion in refusing to compel additional discovery and plaintiff can point to no errors of fact or law in the court's denial of its employees access to defendant's software, including barring the use of an expert's report because the report failed to comply with the requirements of Fed. Rule of Civ. Proc. 26(a)(2)(B).  Furthermore, district court did not abuse its discretion in declining to impose a sanction on defendant because plaintiff was not left without a remedy for any harm caused by the third party's spoliation.  And lastly, defendant was entitled to summary judgment on the merits on the copyright infringement claims because plaintiff has not produced any direct evidence of copying and indirect evidence of copying was not sufficient to create a fact question as to whether copying occurred; and district court correctly held that plaintiff's end user product was not a trade secret because plaintiff did not take reasonable steps to maintain its secrecy. 

    US v. Anderson, No. 08-6152, concerned a a conviction of an owner of a long-term healthcare facility for Medicaid fraud, district court's denial of defendant's motion to dismiss the indictment for duplicity, refusal to instruct the jury with instructions to cure the duplicity and post-trial motion to dismiss the indictment.  In affirming the judgment, the court held that the district court did not err in denying plaintiff's post-trial motion to dismiss the indictment for failure to state an offense as the indictment satisfied both of Hamling's requirements.  Furthermore, defendant's claim that 42 U.S.C. section 1320a-7(b) violates due process by failing to give fair notice of what it prohibits is without merit; and defendant's claim that the indictment is duplicitous is without merit, and thus the district court acted within in discretion in denying the jury instructions requested by defendant to cure the alleged duplicity. 

    US v. Curry, No.08-1732, concerned a defendant's motion to modify or reduce his sentence below the bottom of the sentencing guidelines range of 73 months' imprisonment, pursuant to 18 U.S.C. section 3582(c)(2), following his conviction for being a felon in possession of a firearm.  In affirming the district court's denial of the motion, the court held that the district court applied the correct legal standard when it concluded that it had the discretion to entertain defendant's motion on the merits, and under the circumstances, the district court did not abuse its discretion in denying the defendant's motion for further modification of his sentence. 

    US v. Lewis, No. 09-1162, concerned a challenge to a conviction of defendant for transporting a visual depiction of a minor engaged in sexually explicit conduct and sentenced to 151 months' imprisonment.  In affirming the conviction and the sentence, the court held that defendant's ineffective assistance of counsel claim is dismissed as facts are not sufficiently developed in the record for proper review.  Also, district court's denial of defendant's motion for a second ends of justice continuance as his motion to suppress the evidence seized pursuant to the authorized search is without merit, and thus, defendant cannot show that he was prejudiced by the denial of continuance so that he could file his suppression motion. Lastly, district court's application of a two-level sentence enhancement for his use of a computer to transmit the illicit images is affirmed. 

    V Secret Catalogue, Inc. v. Victoria's Secret Stores, Inc., No. 08-5793, concerned Victoria's Secret's trademark "dilution by tarnishment" suit against a small retail store that sells sex toys and other sexually oriented products, pursuant to the Trademark Dilution Revision Act of 2006.  In affirming the judgment of the district court in favor of the plaintiff, the court held that the new Act creates a kind of a rebuttable presumption, or at least a very strong inference, that a new mark used to sell sex related products is likely to tarnish a famous mark if there is a clear semantic association between the two, and here, that presumption has not been rebutted. 

    Related Resources:

    La Quinta Corp. v. Heartland Properties LLC, No. 08-6368, concerned a challenge to the district court's judgment in favor of plaintiff in an action for breach of a hotel franchise agreement and federal trademark infringement.  In affriming the district court's judgment, the court held that there was no abuse of discretion in denying defendant's belated discovery motion, and in the award of treble damages given the abundant evidence that defendant willfully infringed upon plaintiff's trademarks.  The court also held that the district court did not err in granting plaintiff's motion for summary judgment and denying defendant's motion for same with respect to the breack of contract claims. 

    In Reed-Bey v. Pramstaller, No.08-1774, the Sixth Circuit faced a challenge to district court's dismissal of an inmate's section 1983 suit against Michigan prison officials claiming he was denied adequate medical care in violation of his Eight and Fourteenth Amendment rights.  In reversing the dismissal, the court held that the inmate exhausted his claim because the Michigan Department of Corrections opted to dismiss the grievances on the merits rather than invoke its procedural bar.

    Fieger v. Corrigan, No. 08-1122 involved a suit brought by a trial attorney and politician, regarding an ongoing feud with several justices of the Michigan Supreme Court, seeking a declaration that the state's recusal rules deny him his constitutional right to a fair tribunal in which to be heard.  However, the case is dismissed as moot because this case substantially mirrors the claims of plaintiff's 2004 case, so too should the result.

    Related Resources:

    Bridgeport Music, Inc. v. UMG Recordings, Inc., No. 07-5596

    In plaintiff's copyright-infringement case against defendant for infringement of its copyright on George Clinton's song, based on the use of the phrase "Bow wow wow, yippie yo, yippie yea", district court's finding that defendant willfully infringed plaintiff's rights in the song and an award of statutory damages of $88,980 are affirmed where: 1) the jury instructions were not erroneous as a matter of law; and 2) the district court did not abuse its discretion in declining to give the instructions requested by the defendant.   

    Read Bridgeport Music, Inc. v. UMG Recordings, Inc., No. 07-5596

    Appellate Information

    Argued: April 23, 2009

    Decided and Filed: November 4, 2009


    Opinion by Circuit Judge Daughtrey


    For Appellant:  Jeffrey D. Goldman, Mitchell, Silberberg & Knupp, LLP, Los Angeles, California.

    For Appellee:  Richard S. Busch, King & Ballow, Nashville, Tennessee.