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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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Intellectual Property Litigation Alert >> Ninth Circuit Confirms That Keyword Advertising Can Be Trademark Infringement, But Raises The Bar To Prove Infringement - Alert -  04/11/2011

Many advertisers use keyword advertising programs with search engines, such as Google's AdWords, as part of their internet marketing campaigns. These programs often allow a keyword advertiser to select the trademarked name of a competitor as a keyword.

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Intellectual Property Litigation Alert >> Government Seizes Websites On Suspicion Of Copyright Infringement - Alert -  02/10/2011

U.S.Immigration and Customs Enforcement (ICE),a unit of the Department of Homeland Security (DHS), recently seized several websites on suspicion of posting downloadable copyrighted materials without the authority of the copyright owners.

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Financial Management of a Marketing Firm: Avoiding Legal Pitfalls - Published Article -  11/23/2010

By: Michael C. Lasky, Anne DiGiovanni and Nordia Edwards

This chapter concentrates on the most common areas where legal disputes arise, covering copyright, trademark, social media, client contracts, and employment and HR issues.

Those in the business of providing marketing or communications services for clients generally place a high value on their talent pool—and for good reason: the creative work product generated by the company’s employees is essential to its success.

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Law 360: The IP You See, And The IP You Don't - Published Article -  09/02/2010

By: Marc J. Rachman and C. Andrew Keisner

It is not uncommon for lawsuits involving the types of intellectual property reduced to paper or other tangible media, typical with patents, copyrights or trademarks, to also include related claims that are not so clearly defined, such as misappropriation of trade secrets, idea misappropriation and breach of an implied contract.

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Washington Legal Foundation - The Legal Backgrounder: “Enhanced” FCC Regulation Of Product Placement Would Breach Free Speech Rights - Published Article -  04/09/2010

By: Joseph Lewczak and Anne DiGiovanni

Michael J. Fox’s character ordering a Pepsi in the movie Back to the Future. Oreo cookies being eaten and discussed throughout an episode by the cast of Seventh Heaven. A character on The Office going to work at a Staples office supply store. Product placement is ever-evolving in television and
movies. With the infiltration of alternative viewing methods such as TiVo, Hulu.com, and illegal downloading, the YouTube generation of viewers is much less persuaded by advertisements in the traditional television programming format. Advertisers and entertainment content producers have
responded over the last decade with product placement,1 whereby advertisers pay to have their products subtly, or not so subtly, included and often featured in entertainment content.

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Forbes.com // Oprah Vs. The Supplement Sellers - Press Mention - 08/20/2009

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New York Law Journal: Non-Traditional Advertising During Economic Turbulence - Published Article -  06/18/2009

By: Joy Wildes and Brooke Erdos Singer

In the current economic crisis, many companies have lower budgets with which to advertise their products or services. Although the full impact of the recession on advertising and marketing spending has yet to be seen, insiders and industry analysts are predicting further decreases in advertising spending in newspapers, magazines, TV and radio with a concurrent rise in spending and usage in non-traditional media.

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Mary M. Luria Elected Chairperson of Bideawee - Press Release - 02/04/2009

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The Metropolitan Corporate Counsel: The New Standard Of Fraud And The Importance of Trademark Audits - Published Article -  02/03/2009

By: Jeffrey C. Katz and David A. Weems

Trademark audits are important to the proper maintenance of any trademark portfolio. They have become even more vital as a result of a series of recent cases decided by the Trademark Trial and Appeal Board (TTAB) of the U.S. Patent and Trademark Office. These decisions have made clear that trademark owners now face a new standard for fraud, one under which the TTAB has become increasingly willing to cancel federal trademark registrations obtained or maintained based on misstatements. Trademark owners therefore cannot afford to be careless with respect to factual representations made regarding use of their marks on particular products or services.

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The Metropolitan Corporate Counsel: Is The Design Piracy Protection Act A Step Forward For Copyright Law Or Is It Destined To Fall Apart At The Seams? - Published Article -  07/01/2008

By: Ronald R. Urbach and Jennifer Soussa

Fashion has permeated nearly every medium of American culture, including television, with programs such as “Project Runway” and “What Not to Wear;” movies, such as “The Devil Wears Prada;” magazines, including “Vogue,” “Glamour” and “Elle;” art, such as the Metropolitan Museum of Art’s Costume Institute, which houses a collection of more than 30,000 costumes, fashions and accessories, and music, with musicians such as Madonna, Sean “P. Diddy” Combs and Gwen Stefani wielding influence beyond the stage with their styles and fashion lines.

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The Firm Voice: Avoiding Costly Mistakes: How to Copy 'Right' and How Not to Copy 'Wrong' - Published Article -  06/04/2008

By: Michael C. Lasky, Sara L. Edelman, and Shirin Keen

Every day, public relations firms distribute copyright-protected material. You may be unintentionally violating the federal copyright law when you photocopy a magazine article and share it with your clients by e-mail, post an industry newsletter on your company's intranet site or distribute a research report at a client presentation. As technology makes distributing works easier and easier, it is even more important to be mindful of copyright issues because the penalties can be severe – no matter how innocent the infringement may seem. This article provides a brief overview of copyright law and some tips about how to copy "right" and copy "wrong."

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eMarketing and Commerce: 5 Tips to Minimize the Risk of Keyword Trademark Infringement - Published Article -  04/01/2008

By: Joseph J. Lewczak

In keyword advertising, search engine providers offer advertisers the ability to specifically target consumers through the sale of advertising space linked to keywords input by consumers as part of their search.

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The Metropolitan Corporate Counsel: Second Circuit Provides Clearer Picture On False Advertising Doctrine - Published Article -  02/01/2008

By: Marc J. Rachman, Joseph J. Lewczak and Christopher Poindexter

In August 2007, the Second U.S. Circuit Court of Appeals issued an opinion concerning certain DIRECTV advertisements that provided a clearer picture on its false advertising doctrine. It modified the District Court’s ruling banning DIRECTV from disseminating in any Time Warner Cable, Inc. (“TWC”) cable market certain television commercials and Internet advertisements found likely to violate the Lanham Act on literal falsity grounds. See Time Warner Cable, Inc. v. DIRECT TV, Inc., 497 F.3d 144 (2d Cir. 2007). The case concerned claims made in some of DIRECTV’s advertisements about the picture quality of DIRECTV’s high definition (“HD”) programming. In evaluating DIRECTV’s HD quality claims, the Second Circuit made three clarifications to its false advertising doctrine: (i) an advertisement can be literally false even though it does not explicitly make a false assertion, if the words or images, considered in context, necessarily and unambiguously imply a false message; (ii) the category of non-actionable “puffery” encompasses visual depictions that, while factually inaccurate, are so grossly exaggerated that no reasonable consumer would rely on them in navigating the marketplace; and (iii) the likelihood of irreparable harm may be presumed where the plaintiff demonstrates a likelihood of success on its literal falsehood claim and that given the nature of the market, it would be obvious to the viewing audience that the advertisement is targeted at the plaintiff, even though the plaintiff is not specifically identified by name.

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The Metropolitan Corporate Counsel: Death Pays: The Fight Over Marilyn Monroe’s Publicity Rights - Published Article -  07/01/2007

By: Sara L. Edelman

Just because a celebrity is dead, doesn’t mean she can’t try and earn a living. Take, for example, Marilyn Monroe. Since the blonde bombshell’s estate teamed up with the talent giant CMG Worldwide, Inc. (“CMG”) in 1996, the licensing of Marilyn Monroe’s name and image has pulled in over $30 million in revenues. Forbes Magazine routinely ranks Monroe as one of the top grossing dead celebrities; in fact, she earned a cool $8 million just last year alone. Not bad for someone who has been dead almost 45 years. Thanks to CMG’s efforts, Monroe’s name, voice and likeness are used to sell a vast array of products, including refillable lighters, vodka, cars, wine, leather furniture and jeans.

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The Metropolitan Corporate Counsel: Almost Famous? Comments On The Trademark Dilution Revision Act - Published Article -  02/01/2007

By: Jeffery C. Katz and David A. Weems

On October 6, 2006, President Bush signed the Trademark Dilution Revision Act of 2006 (“TDRA”). The TDRA amends the Federal Trademark Dilution Act (“FTDA”) in a number of important ways, both broadening and narrowing the dilution protection afforded to famous marks and clarifying certain provisions.

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The Metropolitan Corporate Counsel: That's Not Fair...Or Is It? The Concept Of Trademark Fair Use - Published Article -  01/01/2006

By: Jeffrey C. Katz

“But why can’t we stop them from using our mark?” is a question often asked of trademark attorneys. As with most areas of the law, the answer is rarely simple. The trademark owner is given certain exclusive rights, but is not granted an absolute monopoly over the mark. The rights are limited since the principal purpose of trademark law is to prevent consumers from being confused by misuse of a mark. Accordingly, the key limitation on exclusivity in a mark is the need for the owner to establish a likelihood of confusion. Another limitation is the concept of fair use. Consider the situation where a party wants to use another’s trademark in an incidental manner, or not as a mark but in its regular language, descriptive sense. The fair use doctrine addresses these issues.

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The Metropolitan Corporate Counsel: Intellectual Property In The Online World: An Ongoing Digital Dilemma - Published Article -  06/01/2005

By: Richard S. Eisert and Gary Kibel

From the very first moment when a record company learned that a song could be shared through an online file sharing service for free, or a photographer discovered that his/her photo was being distributed as a high-resolution graphic without a license or an author saw proprietary content posted on a web site without permission, the battle between content providers and technology providers has been raging. New technological advancements are often met with serious concerns over the ability to use such systems for the unauthorized use, copying or distribution of intellectual property.

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The Metropolitan Corporate Counsel Court Delivers Bitter Result To Coffee Company In Right Of Publicity Case - Published Article -  04/01/2005

By: Howard R. Weingrad and Sara L. Edelman

On January 27, 2005, a California jury awarded $15.6 million to a former model whose picture was used without his permission on Taster’s Choice coffee product labels.  This is an important development for any company dealing with rights and clearances, and serves as an important warning as to the substantial damages a defendant faces if the appropriate permission is not obtained.

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The Metropolitan Corporate Counsel: Are Punitive Damages Available Under The Copyright Act? - Published Article -  03/01/2005

By: Marc J. Rachman, Sara L. Edelman, David Greenberg

Given the Copyright Act’s express enumeration of available remedies under the Act and its silence with respect to punitive damages, one would think that a copyright owner is barred from seeking punitive damages when bringing a claim for copyright infringement. Several recent decisions in the Southern District of New York, however, have allowed punitive damages claims to proceed. This article will discuss the traditional view that punitive damages are not available under the Copyright Act, and will explore recent decisions indicating that such damages might be recoverable under certain circumstances. This article will then discuss the implications for both plaintiffs and defendants, and will finally argue that punitive damages should not be available in copyright actions.

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New York Law Journal: Wait, the Copyright Act Allows Punitive Damages?  - Published Article -  01/24/2005

By: Marc J. Rachman, Sara L. Edelman and David Greenberg

This article will discuss the traditional view that punitive damages are not available under the Copyright Act, and will explore recent decisions indicating that such damages might be recoverable under certain circumstances. This article will then discuss the implications for both plaintiffs and defendants, and will finally argue that punitive damages should not be available in copyright actions.



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