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By Jeff Pietsch

Last week, a judge for the United States District Court in Arizona has granted a summary judgment in favor of recording companies. The judgment finds the defendant, Jeffrey Howell, liable for copyright infringement for illegally sharing music files. Even though there was no evidence that the defendant actually distributed the music files, the judge found the defendant violated copyright laws by making the files available for distribution. This case is significant because it is the first case that specifically states that “making available” equates to distribution under copyright laws.Continue Reading “Making Available” is Copyright Infringement in File Sharing Case

By Dale Campbell

Intellectual property litigation relies heavily upon the use of expert testimony. The Ninth Circuit Court of Appeals recently analyzed the intersection of Federal Rules of Evidence, Rule 702 and the ruling in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (“Daubert”) concerning the admissibility of expert testimony and Federal Rules of Civil Procedure, Rule 56 for summary judgment. Stillwell v. Smith & Nephew, Inc., 482 F.3d 1187 (9th Cir. 2007). Admissibility of expert testimony must be carefully evaluated for reliability and helpfulness, but that is different than the analysis for whether a triable issue of fact is established.

Continue Reading Experts and Summary Judgment

By James Kachmar

In Magic Kitchen LLC v. Good Things International Ltd., et al., the California Court of Appeal (Second App. Dist., July 30, 2007) was confronted with the issue of whether to apply the statute of limitations or the equitable doctrine of laches to determine whether plaintiffs’ claims for trade dress infringement were barred as a matter of law. The Court held that it was unnecessary to address the split of authority on the issue because it found that plaintiffs’ claims for trade dress infringement were barred by the doctrine of laches. The Court affirmed the trial court’s entry of a directed verdict against plaintiffs as to these claims. Continue Reading Act Now! – Or Lose Your Trade Dress Infringement Claim

By Scott Hervey

According to the Department of Commerce, losses to U.S. businesses from the counterfeiting of trademarked consumer products are estimated at $200 billion a year. A model trademark law proposed by the International Trademark Association and currently winding its way through the legislative process in California includes a provision which appears to be an attempt to slow this ever growing enterprise.

The proposed new trademark law provides that the owner of a state registered mark may bring an action for infringement against any persons that “knowingly facilitate, enable, or otherwise assist a person to manufacture, use, distribute, display, or sell any goods or services bearing any reproduction, counterfeit, copy, or colorable imitation of a mark registered under this chapter, without the consent of the registrant.” Under the new trademark law, a person is presumed to have acted knowingly if that person continues to engage in the complained of activity following delivery and receipt of a cease and desist demand letter containing certain language and information. Continue Reading Host A Website And Get Sued For Trademark Infringement – Possible Under California’s Model Trademark Law.

By Jeff Pietsch

On May 15, 2007, the 9th U.S. Circuit Court of Appeals created a significant exception to the immunity granted to a website operator under 47 U.S.C. § 230 “The Communications Decency Act” (“CDA”). The court held that Roommate.com can be held liable for publishing content from member questionnaires created by using drop-down menus and distributing member profiles, but is immune from liability for publishing users’ responses to open-ended fields or questions. (Fair Housing Council of San Fernando Valley v. Roommate.com, LLC, 2007 WL 1412650 (9th Cir.). With this recent ruling, website operators will need to determine when the protection provided by the CDA for Internet services applies to its site.Continue Reading Interactive Websites May Lose Protection Under the Communications Decency Act