By James Kachmar

Although several federal courts in California have previously considered the issue of preemption in trade secret misappropriation cases, the Sixth Appellate District, in K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. ___ Cal.Rptr. 3d ____ (6th Dist. Mar. 3, 2009), became one of the first (if not the first) California state court to hold that the California Uniform Trade Secrets Act (“CUTSA”) preempts state common law claims based on the same facts as a misappropriation claim. This ruling could have a significant impact on how trade secret misappropriation cases are both pled and litigated in California. 

 

Continue Reading Trade Secrets and Preemption

By Scott Hervey 

Have you ever been into a used record store (remember those) and picked up a used CD that had the following language either on the CD case or on the CD itself:

FOR PROMOTIONAL USE ONLY

This CD is the property of the record company and is licensed to the intended recipient for personal use only. Acceptance of this CD shall constitute an agreement to comply with the terms of the license. Resale or transfer of possession is not allowed and may be punishable under federal and state laws.

Have you ever wondered how on earth can the record label control the sale of these CDs. (An obvious question given the fact that the CD in question is for sale in a used record store.) According to a recent federal court case, they cant.

Continue Reading Not Just For Promotional Use

By Audrey A. Millemann  

In another attempt to address the question of the patentability of business methods, the Federal Circuit Court of Appeals has vacated its September 2007 decision in In re Comiskey (499 F.3d 1365).

  

The patent application filed by Comiskey, in 1999, claimed a method for mandatory arbitration and a system, using a computer, for performing the method. The PTO examiner rejected both the method and system claims as obvious under § 103. Comiskey appealed to the Board of Patent Appeals and Interferences, who affirmed the rejections. 
 

Continue Reading Federal Circuit Revisits Comiskey

By Dale C. Campbell

The Ninth Circuit recently considered the enforceability of non-competition covenants contained in franchise-like agreements.  (Comedy Clubs, Inc. v. Improv West Associates (9th Cir. January 29, 2009; WL 205046.)

 

The plaintiff Comedy Club, Inc. (“CCI”) entered into a trademark license with Improv West Associates (“IMPROV”). CCI owned and operated restaurants and comedy clubs across the nation. The license agreement provided that IMPROV granted CCI an exclusive nationwide license to use the IMPROV marks; that CCI would open four IMPROV clubs a year in 2001 through 2003; and CCI would not operate any non-IMPROV clubs during the term of the license.

 

Continue Reading Ninth Circuit Blue-Pencils Non-Competition Agreement

by Zachary Wadlé 

Recent news reports tell of an impending legal battle between the artist of the painting at left and the Associated Press who owns the photograph upon which the painting was based. The legal battle will determine whether the ubiquitous painting of the 44th President is an original piece of artwork, or one that improperly misappropriated a photograph protected by copyright laws.

But what of President Obama’s rights in his own likeness? Can any artist commandeer the President’s likeness for his/her own commercial purposes without fear of legal repercussions? Could President Obama stop such commercial use of his likeness if he was so inclined? The answer depends on how “transformative” of President Obama’s likeness the work of art is.

Continue Reading “Transformative” or Not?