By Scott Hervey
The holiday season means something different for each of us. For some it’s a time for eggnog, parties and mistletoe. For others, it’s a time for cease and desist letters, seizure actions and lawsuits. Yes Virginia, there is a Santa Clause, and his lawyers stand ready to sue those who use his marks and other intellectual property without permission.
Continue Reading Christmas – A Time For Fruitcake and Infringement Actions
Trademark infringement occurs when a third party uses a mark in a way that infringes upon a trademark owner’s exclusive right and use of a trademark. Often, the third party will use a similar mark in a way that confuses consumers as to the source of the goods and services. For example, a fast food restaurant named “Wendi’s” would likely cause confusion with “Wendy’s.” Trademark infringement can occur only when it is likely that consumers will be confused as to the source of the goods. The purpose of this article is to examine the test and factors that courts use to determine if such infringement exists.
Continue Reading Trademark Infringement: Factors Considered in Consumer Confusion
eBay describes itself on its website as: “The World’s Online Marketplace®, enabling trade on a local, national and international basis. With a diverse and passionate community of individuals and small businesses, eBay offers an online platform where millions of items are traded each day.” Nearly anything can be bought and sold on eBay. However, the Ninth Circuit recently announced that one thing you do not buy on eBay is personal jurisdiction.
The decision, Boschetto v. Hansing, 539 F.3d 1011 (9th Cir. 2008), begins by stating that the “appeal presents a question that remains surprisingly unanswered by the circuit courts: Does the sale of an item via the eBay Internet auction site provide sufficient ‘minimum contacts’ to support personal jurisdiction over a nonresident defendant in the buyer’s forum state?” In the Ninth Circuit it does not.
Continue Reading You Can’t Buy Personal Jurisdiction On eBay
The Federal Circuit Court of Appeals has redefined the test for the patentability of business methods and computer software. In In re Bilski, 545 F. 3d 943 (Fed. Cir. 2008), an en banc decision, the court discarded the current test, which it established in its 1998 decision in State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998) for a test set forth in a Supreme Court case decided in 1972, Gottschalk v. Benson, 409 U.S. 63 (1972).
Bilski sought to patent a method for hedging risks in commodities trading. Claim 1 required three steps, the essence of which were: (1) initiating a series of transactions between a commodity provider and consumers; (2) identifying market participants for the commodity; and (3) initiating a series of transactions the between the commodity provider and the market participants. The U.S.P.T.O. rejected Bilski’s claims on the grounds that they were not a patentable subject matter under 35 U.S.C. § 101.
Answer – a trademark dispute.
The on-line entertainment news site, TMZ.com, reported on a brewing dispute between World Wrestling Entertainment and Hulk Hogan’s Celebrity Championship Wrestling television program which airs on CMT. IP Law Bloger Scott Hervey is counsel for the program.
Click this link to the TMZ news posting: >>>>To TMZ Posting on WWE/CCW Article<<<<
