Intellectual Property Litigation

In this week’s episode of The Briefing by the IP Law BlogScott Hervey and Josh Escovedo discuss the Ninth Circuit Ruling on the trademark aspects of Dr. Seuss “mashups.” They also provide a recap of last week’s episode, which covers the copyright aspects of the case.

Watch episode two on the Weintraub

In this episode of The Briefing by the IP Law BlogScott Hervey and Josh Escovedo discuss the Ninth Circuit Ruling on the copyright aspects of Dr. Seuss “mashups.” In the second episode of this two-part series, they discuss the trademark aspects of this case.

Watch episode one on the Weintraub Tobin YouTube channel,

Companies and employers aroundJames-Kachmar-08_web the country seek to protect their intellectual property by, among other things, using non-compete provisions in employment agreements. Generally, these provisions are intended to prevent an employee from soliciting or doing business with a former employer’s customer/clients over a set period of time and/or in regard to a set geographical area. Under California law, and specifically Business and Professions Code section 16600, such provisions are unenforceable unless they fall within one of the statutory exceptions, i.e., primarily in connection with the sale of a business interest. For years, although California state courts would refuse to enforce such provisions under section 16600, federal courts in California sometimes applied a narrow court-created exception and allow such provisions to be enforced provided that they were narrowly tailored as to time and geographical area. In 2008, the California Supreme Court unequivocally ruled that such provisions were unenforceable under section 16600 and rejected the “narrowly restricted” exception used by federal courts. (See Edwards v. Arthur Andersen, LP, 44 Cal.4th 937 (2008).)

In response to the Edwards decision, many California companies and employers began to omit such provisions from their new employment agreements or re-write them with specific language restricting an employee from using trade secret information to unfairly compete. However, other companies and employers left their old agreements untouched and in place thinking merely that they would not enforce them should the need arise. A recent court decision, Couch v. Morgan Stanley & Co., Inc. (E.D. Cal. Aug. 7, 2015), reveals the risk an employer or company faces in failing to update their older employment agreements to remove or revise such provisions.


Continue Reading Hidden Pitfalls of Old Non-Compete Provisions

It’s not exactly a decision in the intellectual property sphere, but a recent ruling by a judge in Oklahoma City, Oklahoma related to a botched call in a high school football game deserves to be called-out for praise.

That case involved a quarterfinal footballgame of a high school league tournament in Oklahoma City. Frederick A. Douglass High School scored on a 58-yard touchdown pass at the last minute to take the lead over its rival, Locust Grove High School.

For some reason, one of the Douglas coaches made physical contact (whether purposely or inadvertently is not known) with a referee on the sideline. That contact resulted in a penalty flag. The rules for this infraction calls for a 5-yard penalty on the extra point attempt or the next kick off. Instead of applying this relatively minor penalty, the officials “went nuclear” and nullified the touchdown. As a result, Locust Grove was declared the winner of the game.

Maybe it was a bad call, maybe it wasn’t. I am certainly not an expert in the niceties of high school football. Although Frederick Douglass High School protested the call, the local association in charge of such things said that its rules did not permit such protest. In light of that, the Association neither permitted Douglass’ request to resume the game with a 1:04 on the game clock or restore the negated touchdown (giving the win to Frederick Douglass).
Continue Reading At Least the Court Didn’t Blow This Call . . . Thoughts on the Oklahoma City High School Football Case