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Intellectual Property Litigation Alert >> Supreme Court Clarifies Who Can Assert a Federal Claim for False Advertising  - Alert - 04/03/2014

The Supreme Court’s ruling in Lexmark should have a significant impact on Lanham Act false advertising cases. The decision adopts a simpler standard for determining Lanham Act false advertising standing that will more likely be uniformly applied by the courts. At the same time, the new standard allows for plaintiffs who are not direct competitors of the defendants to assert claims, so the decision could result in an increase in false advertising suits, especially in those Circuits that previously required plaintiffs to be direct competitors of the defendants.  

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Robotics Business Review: Patent Infringement Indemnification: What You Must Know - Published Article - 02/17/2014

by C. Andrew Keisner

 

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Robotics Business Review Keeping Things Confidential: Robotics Trade Secrets 1.0 - Published Article -  10/21/2013

by C. Andrew Keisner

Especially in this industry, where robotics veterans have established lasting relationships, there is a real fear of tarnishing a company’s reputation by suing a former employee and the competitor company that s/he joined. But the fact that your company loathes such aggressive action is no justification for poor planning when it comes to protecting your robotics company’s trade secrets. A robust trade secrets policy does more than form the basis of your company’s future lawsuits against those who flee with your "special sauce" – it also sends a strong warning to any competitors who consider hiring away your employees for the wrong reasons.

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Practical Law Company: Trademark Laws: New York - Published Article -  07/15/2013

By: Marc J Rachman and Joy J. Wildes

A Q&A guide to New York laws protecting trademarks. This Q&A addresses state laws governing trademark registration, infringement, dilution, counterfeiting, unfair competition and deceptive trade practices.

 

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Intellectual Property Litigation Alert >> Supreme Court To Decide If False Advertising Claims Are Limited To Just Direct Competitors - Alert -  06/27/2013

By Marc J. Rachman and David S. Greenberg

The United States Supreme Court recently agreed to hear an appeal concerning the requirements for who has the right to assert a federal claim for false advertising. The outcome of the case could have significant implications for false advertising claims in the future. Currently, there is a split among the federal circuit Courts of Appeal, with three circuits requiring that a party be a direct competitor to have standing to bring a false advertising claim and six circuits allowing false advertising claims to be brought by parties who are not direct competitors under certain conditions.

 

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New York Law Journal: Are Restrictive Covenants Enforceable Against Employees Terminated Without Cause? - Published Article -  04/01/2013

By Neal H. Klausner; David Fisher

In doing so, these courts relied on Post v. Merrill Lynch, Pierce, Fenner & Smith, a case in which the New York Court of Appeals held that when an employee is terminated without cause, and thereafter enters into competition with his or her former employer, it would be unreasonable as a matter of law to enforce an agreement providing that the employee forfeit previously earned pension benefits based on such competition. But the Second Circuit’s recent decision in Hyde v. KLS Prof’l Advisors Grp., suggests that the lower courts have extended the ruling in Post beyond its intended limitation to the forfeiture-of-benefits-for-competition context, and may indicate an end to the automatic rule that restrictive covenants are unenforceable when an employment relationship is terminated without cause.

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Council of Public Relations Firms: Advertising, Consumers, and the New FTC Disclosure Guidelines - Published Article -  04/01/2013

By Gary A. Kibel

Is your firm up on the latest FTC guidelines governing online advertising and the proper consumer disclosures required by law? It better be.

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New York County Lawyer: Recent Cases Demonstrate the Effectiveness of First Amendment Defenses to Claims of Intellectual Property Infringement - Published Article -  03/11/2013

By: Marc J. Rachman and Dominick R. Cromartie

There have been a number of recent cases reported in the press that have raised defenses un-der the First Amendment in response to claims of intellectual property infringement or right of publicity violations. For example, in February of 2012, an app developer sought First Amend-ment protection for its parody app called "Joustin Beaver" by filing a lawsuit seeking a declara-tion that the game did not violate Justin Bieber’s right of publicity because, among other things, it was protected speech. Similarly, in December of 2012, Sony Pictures moved to dismiss on fair use grounds a copyright infringement lawsuit concerning the use of William Faulkner’s famous quote, "The past is not dead! Actually, it’s not even past," in the Woody Allen film, Midnight In Paris. And in a matter that was not litigated, but widely reported, Paramount Pictures Corp. re-fused Anheuser Busch’s request that it remove the Budweiser logo from the film Flight, in which Denzel Washington portrayed a highly functional alcoholic airplane pilot, on the grounds that such use was protected under the First Amendment. This article will discuss the origins of these defenses and how several recent court decisions have upheld their application in connection with a reference to Lindsay Lohan in a rap song, the use of biographical information about Olympic athletes in a Facebook app, the appearance of a Louis Vuitton knockoff bag in the film Hangover II, the depiction in paintings and prints of the University of Alabama’s football team, and the lampooning of a viral video in an episode of the television show South Park.

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Intellectual Property Litigation Alert >> Olympians’ Right of Publicity Claims Over a Facebook App Trumped by First Amendment - Alert -  02/04/2013

By Marc J. Rachman and Dominick R. Cromartie

A California state court recently dismissed a lawsuit brought by former Olympians, including Mark Spitz and Greg Louganis, against Samsung for right of publicity violations over a Facebook app that used their names, images and biographical information without their consent.

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Intellectual Property Litigation Alert >> Court Flags Historical Use of NFL Team’s Former Logo in Video Game as Infringing - Alert -  12/19/2012

By Marc J. Rachman, David S. Greenberg and C. Andrew Keisner

Copyright law has long recognized that an artist’s right to protect his or her creation is somewhat limited by others’ rights to make fair use of a work in a reasonable manner. Courts frequently hold that copyrighted works can be used without liability, as "fair use," in news reporting, critical commentary, and historical scholarship.

 

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Litigation Alert >> District Court Ruling May Lead to Increased Dodd-Frank Retaliation Suits - Alert -  12/04/2012

By Neal H. Klausner and David S. Greenberg

A recent ruling by a Connecticut federal court may lead to a rise in "whistleblower" lawsuits filed under the Dodd-Frank Act (the Act), which protects employees who attempt to expose corporate improprieties.

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Intellectual Property Litigation Alert >> Recent Cases Expand Use of “Artistic Relevance” Test as a Defense for Trademark Infringement - Alert -  11/30/2012

By Marc J. Rachman and Dominick R. Cromartie

In the case Webceleb Inc. v. The Procter & Gamble Company et. al., a California federal court recently held that the use of the term "Web Celeb" as a title for an award category in the People’s Choice Awards did not infringe the plaintiff’s trademark in "WEBCELEB," as it satisfied the "Artistic Relevance" test.

 

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Law360 >> Use of “Artistic Relevance” Test is Expanding - Published Article -  11/06/2012

By Marc J. Rachman and Dominick R. Cromartie

In the case Webceleb Inc. v. The Procter & Gamble Company et. al., a California federal court recently held that the use of the term "Web Celeb" as a title for an award category in the People’s Choice Awards did not infringe the plaintiff’s trademark in "WEBCELEB," as it satisfied the "Artistic Relevance" test.

 

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Making Your Robotics Company a More Attractive Investment - Published Article -  10/21/2012

By C. Andrew Keisner

Any robotics business whose value is being assessed, whether for a strategic investment, acquisition, IPO, or any other reason, will almost certainly have their intellectual property reviewed as part of that assessment. While two companies may appear similar to potential investors at first glance, a robotics company without intellectual property can appear vulnerable, whereas a company with the right combination of intellectual property will convey that it is well-run and a sound investment.

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2012 New York Super Lawyers and Rising Stars-Metro Edition Honors Nine Davis & Gilbert Partners - Press Release - 10/02/2012

New York, NY, October 1, 2012 – Nine Davis & Gilbert partners have been selected to appear on the 2012 New York Super Lawyers and Rising Stars-Metro Edition list in the areas of First Amendment/Media/Advertising, Employment & Labor, Intellectual Property Litigation, Business Litigation and Real Estate. In addition, Neal H. Klausner and Gerald R. Uram were ranked as Top 100 New York Super Lawyers. These lawyers received the highest point totals in the New York Metro nomination, research and review process.

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Intellectual Property Alert >> Good For The Sole: Appeals Court Says Single Color Can Be Protectable as a Trademark - Alert -  09/12/2012

By Brooke Erdos Singer and Joy J. Wildes

The U.S. Court of Appeals for the Second Circuit has decided that the "Red Sole" trademark of fashion designer Christian Louboutin is a valid trademark. However, the court limited Louboutin’s rights in its mark to shoes which have a red outsole that contrasts with the "upper," or remainder, of the shoe.

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Litigation Newsletter >> Summer 2012 - Newsletter -  08/13/2012

IN THIS NEWSLETTER: Maintaining sound business practices in order to avoid costly litigation is always a good idea. In this issue, we discuss a case that has practical implications for employer investigations concerning harassment and discrimination claims; give advice to brand owners that may be using a competitor’s trademark as a keyword in a search engine advertising program; and provide guidance to contract drafters given recent case law regarding the enforcement of contractual terms.

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Intellectual Property Litigation Alert >> Ninth Circuit Draws Line On Red Carpet In Determining Consent In Right Of Publicity Cases - Alert -  08/01/2012

By Neal H. Klausner and Dominick R. Cromartie

The Ninth Circuit struck a blow to celebrities seeking to expand the protections provided under the right of publicity by holding that, under California law, consent to advertise a celebrity’s photo may be implied in certain contexts when the celebrity has consented to being photographed. In Jones v. Corbis, Shirley Jones, a former Partridge Family star, sued an online provider of photo image licensing for displaying her image to potential licensees without her consent.

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Intellectual Property Litigation Alert >> Ninth Circuit Shreds Proposed Frosted Mini-Wheats Class Action Settlement - Alert -  07/25/2012

The Ninth Circuit did not sugar coat its decision rejecting the proposed $10.6 million settlement in a putative class action accusing Kellogg Co. of making false claims that Frosted Mini-Wheats enhance children’s ability to pay attention.

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IP Law360: Case Study: Forest Park Pictures V. Universal Television - Published Article -  07/09/2012

By Marc J. Rachman and C. Andrew Keisner

The Second Circuit’s recent decision in Forest Park Pictures v. Universal Television Network Inc.[1] found that the “Star Wars” actor Hayden Christensen’s claim for breach of an implied contract was not preempted by the Copyright Act. Christensen had alleged that the USA Network series “Royal Pains” used, in breach of their implied contract, the idea he pitched to them for a television show about a “concierge” doctor to the rich and famous. He had claimed that there was an implied contract that he would be paid if his pitch was used and that USA Network breached that contract by failing to pay him for “Royal Pains.”

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Practical Law Company: Rights Clearance Checklist - Published Article -  07/01/2012

By Richard S. Eisert

A Checklist identifying the main intellectual property and personal rights clearances that may be necessary when creating or using works that may qualify for copyright, trademark and other intellectual property and personal rights protections. Companies must conduct appropriate rights clearance when creating and using these materials to minimize exposure to potential legal action and exposure to liability.

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The National Law Journal 2012 Midsize Hot List: When it Comes to Marketing, They Go Way Back - Published Article -  04/30/2012

By: Bob Stigle

Midsize and mighty. Oh, and venerable. All of the above apply to Davis & Gilbert, which opened in 1906. The firm's 114 lawyers specialize in the law attending marketing and advertising for clients including Discover Financial Services and Nissan North America.

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Practical Law Company: Expert Q&A on Recent Attempts to Expand the Right of Publicity - Published Article -  04/23/2012

Celebrity endorsements and affiliations can add significant value to advertising campaigns. New marketing and media platforms, including social media, are presenting increased opportunities for these individuals to exploit the value of their identities. To maximize this value, celebrities are seeking expanded control over the unauthorized commercial exploitation of their personas(identities) under state right of publicity laws. Recent lawsuits have highlighted the need for advertisers, agencies and their counsel to better understand and track developments in this evolving area of law. Practical Law Company asked Neal Klausner of Davis & Gilbert LLP to weigh in on the current legal landscape and how best to manage the risks and potential liability arising from right of publicity claims.

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Law360: Case Study Viacom v. YouTube - Published Article -  04/19/2012

By Marc J. Rachman and Holly Melton

The Second Circuit recently breathed new life into Viacom International Inc.’s and other video content owners’ copyright infringement lawsuit against Google Inc.'s YouTube that alleges over 70,000 instances of infringement on YouTube’s site between 2005 and 2008. However, in doing so, it did not severely limit the “safe harbor” protections of the Digital Millennium Copyright Act as Viacom had urged the court to do.

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Intellectual Property Litigation Alert >> Second Circuit Revives Viacom's Massive Infringement Case Against YouTube  - Alert -  04/16/2012

The Second Circuit recently breathed new life into a copyright infringement lawsuit brought by Viacom and other owners of video content against YouTube that alleges over 70,000 instances of copyright infringement that occurred on YouTube.

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Litigation Newsletter >> Winter 2012 - Newsletter -  02/15/2012

IN THIS NEWSLETTER: In this issue, we report on some recent developments in the areas of commercial, employment, and intellectual property law. We also provide practical advice that may help you avoid costly litigation.

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Edge-Online.com: The great US patent shakeup – How will changes to US patent law affect the videogame industry?  - Published Article -  01/16/2012

By S. Gregory Boyd and C. Andrew Keisner

US patent law is about to receive its biggest shakeup since the Patent Act of 1952. And it’s likely to affect all game publishers and developers. The Leahy-Smith America Invents Act, or AIA for short, which was signed into law last September and gradually phases into effect in March 2013, will significantly change the way companies will apply for and defend their patents.

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WebsiteMagazine.com - Enterprise Ready: Beware the Patent Trolls - Published Article -  01/01/2012

By: Marc J. Rachman and C. Andrew Keisner

Companies that develop websites are being hit with patent infringement claims more than ever before. By now, almost every website development company realizes that such an increase in patent infringement allegations is a real and serious problem.

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PRWeek: Think Before You Link To Avoid Copyright Violations - Published Article -  12/22/2011

By: Michael C. Lasky

Often, the fastest way to communicate informa-tion digitally is to “link” to it. This allows the viewer to be directed to the website on which the linked information appears. However, making a digital copy of copyrighted material and forwarding it by email can be a violation of copyright laws. So where does lawful linking end and unlawful copyright infringement begin?

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Washington Legal Foundation - Legal Opinion Letter: Will Federal Food Ad "Guidelines" Tread On Brand Trademarks? - Published Article -  10/21/2011

By: Joseph J. Lewczak and Angela M. Bozzuti

Kellogg’s, McDonald’s, General Mills, Campbell Soup Company – these company names are immediately recognizable to consumers and evoke certain feelings or emotions about these companies and their multiple brands. These names are trademarks: source identifiers that communicate brand integrity and established goodwill. Trademarks, which can include business and product names, logos, slogans, and characters, are among a company’s most valuable assets and are intrinsically tied to overall brand equity.

 

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Law 360: Montz V. Pilgrim Films Revisited - Published Article -  06/09/2011

The Ninth Circuit, in a recent 7-4 en banc decision, Montz v. Pilgrim Films, reversed a three-judge panel's earlier determination that a breach of implied contract claim was preempted by federal copyright law, allowing the implied contract claim to proceed.



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