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Section 35 of the Lanham Act, 15 U.S.C. §1117(a), provides a remedy in false advertising, trademark infringement and dilution cases allowing for a plaintiff’s recovery of illicit profits earned by a defendant that are attributable to its wrongful conduct. For more than two decades, Lanham Act plaintiffs in the Second Circuit have been required to make a showing that the defendant engaged in willful misconduct as a prerequisite to a disgorgement award. While this approach is consistent with that of the First, Eighth, Ninth, Tenth, and District of Columbia Circuits, no such requirement exists in the Third, Fourth, Fifth, Seventh, or Eleventh Circuits, which allow disgorgement as a remedy without requiring a threshold showing of willfulness. Rather, the defendant’s intent is merely one factor in an analysis under “principles of equity” in those circuits. See, 15 U.S.C. §1117(a).
By Michael W. Mitchell and Edward Roche
The decision in Brammer v. Violent Hues sheds some light on when re-posting will be a “fair use” and when it will give rise to liability.
By Rob Maier
The trade war between the United States and China has had far-reaching effects on international trade and the global economy. The dispute is slowly developing into a battle of attrition, without any immediate resolution on the horizon despite ongoing trade talks. As businesses change the way they operate in response to this unpredictable trade environment, counsel should consider the risks and potential impacts on corporate IP strategy.
By Alan L. Friel
Part One of a Two-Part Article
The California Consumer Privacy Act (CCPA) is a comprehensive new consumer protection law set to take effect on Jan. 1, 2020. In the wake of the CCPA’s passage, approximately 15 other states introduced their own CCPA-like privacy legislation, and similar proposals are being considered at the federal level. Part One of this article covers how the CCPA applies to businesses — both in and outside California, the revenue threshold, proposed amendments and other open issues.
By George Soussou and Jeff Ginsberg
More Than a Recitation of Hooke’s Law Needed for Patent Protection
A Claim for a Chair Limits the Claim to a Chair