By Scott Cameron

Intellectual property law is governed by an assortment of federal laws and also several state laws. Trademarks, trade dress, copyrights, patents, and antitrust are all protected by federal statutes and a complaint alleging a violation of these rights can usually be filed in or removed to federal court. Therefore, intellectual law practitioners are generally accustomed to litigating in federal court. Among other aspects of federal practice, IP litigators are usually familiar with the well known “notice pleading” requirement for a federal complaint. 

 

Under the notice pleading standard, a complaint will not be dismissed for failure to state a claim so long as it puts the defendant on notice of the gravamen of the plaintiff’s complaint and includes the “short and plain statement of the claim showing that the pleader is entitled to relief” called for in Rule 8 of the Federal Rules of Civil Procedure. Detailed factual allegations are not required to survive a challenge to the complaint. The U.S. Supreme Court set out the pleading requirement decades ago in a case that has been almost universally cited ever since. In Conley v. Gibson, 355 U.S. 41 (1957), the Court laid down what it termed “the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Federal courts have applied that standard for 50 years to refuse to dismiss complaints containing only the barest of allegations.    

Continue Reading Plausibility – Is It The New Pleading Standard In Federal Courts?

By James Kachmar

 

On September 9, 2008, the Ninth Circuit issued its opinion in the case Asset Marketing Systems, Inc. v. Kevin Gagnon and clarified the law concerning implied licenses to use and modify computer software programs. In doing so, the Ninth Circuit adopted an approach previously utilized by the First and Fourth Circuits’ Court of Appeals.

Continue Reading Copyrighted Computer Software and Implied Licenses to Use

Shameless Promotion: IP Law Blogger and WGC partner, Scott Hervey, served as production counsel for Hulk Hogan’s Celebrity Championship Wrestling.  Be sure to tune in October 18th.

Go to www.hulkhogan.com to view the show’s trailer.

IP Law Blogger and WGC partner Scott Hervey is quoted in an August 25, 2008 AdWeek article entitled Brand Defense – Protecting Trademarks and Copyrights.  

"The courts are all over the place right now on [keyword search terms]," says Scott Hervey, trademark group chair at Weintraub Genshlea Chediak Tobin & Tobin in Sacramento, Calif. Hervey represents Hulk and Brooke Hogan on IP issues. "There hasn’t been a uniform rule yet on what is applicable, even with regard to Google."

For the complete article, please follow this link:  To AdWeek Article

By Scott Hervey

John Facenda is a football legend. His deep, baritone voice is “distinctive,” some say “legendary.” Without question, for most football fans, John Facenda was the voice of NFL Films. 

 For decades Facenda worked for NFL Films as an off camera commentator. He worked on a session by session basis under an oral agreement, receiving a per performance fee. Shortly before he died in 1984, Facenda signed a “standard release” contract with NFL Films which stated that NFL Films enjoys “the unequivocal right to use the audio and visual film sequences recorded of me, or any part of them… in perpetuity and by whatever media or manner NFL Films…sees fit, provided, however, such use does not constitute an endorsement of any product or service.” (Emphasis added.)

In 2005, NFL Films produced a 22 minute long television program entitled “The Making of Madden NFL 2006.” The program was about the soon to be released version of the highly popular video game, Madden NFL. The program featured interviews with NFL players and game producers; it contained several sequences comparing the games virtual environment with the actual NFL playing environment, and commented on the realism of the graphic quality of the video game. The program also featured audio and video clips from pervious NFL Films productions, including three sentences, lasting a total of 13 seconds, that were read by Facenda. The producers of the program modified Facenda’s audio clips to make his voice sound more like a computer.

Facenda’s estate sued NFL Films and others claiming that the use of Facenda’s voice in the program falsely implied that Facenda or his estate had agreed to endorse the video game. 

 

Continue Reading Football’s Voice of God Sues NFL Films for False Endorsement