LJN Newsletters

We delve into our browser's bookmarks this month, to review the recently launched Web sites of interest to individuals in the legal profession.

As worldwide Internet use grows, international Internet legal difficulties increase. Resolution is commonly obtained through traditional international treaties, conventions and jurisdictions. However, some critical matters concerning international use and regulation of the Internet remain unsettled.

With the rush to create content, it's easy to forget that all business communications directed to the public are subject to a variety of laws, regulations and other legal concerns. This article provides a high-level overview of the key points to keep in mind as you assess whether your company-related blog is legally compliant.

In a case of first impression under New Jersey law, an appeals court has held that Internet subscribers have a reasonable expectation of privacy, allowing a challenge to a subpoena that led to an indictment for computer-related theft.

Highlights of the latest intellectual property news from around the country.

Last summer, the Third Circuit Court of Appeals in Jean Alexander Cosmetics, Inc. v. L'Oreal USA, Inc., 458 F.3d 244 (3rd Cir. 2006), joined a majority of the courts of appeal in holding that it would give full preclusive effect to any of the alternative holdings of a prior adjudication. In so doing, the court further highlighted the necessity of thinking both offensively and defensively at the earliest stages of a trademark dispute, including during proceedings before the Trademark Trial and Appeals Board ('TTAB').

The recent decision, Fuji Kogyo Co. v. Pacific Bay Int'l, Inc., 461 F.3d 675 (6th Cir. 2006), confronts the question deliberately left unresolved in TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23 (2001), of whether a product design claimed in a prior utility patent can ever be protectable trade dress under the Lanham Act. Although setting a high bar to protectability, indeed a 'presumption' and 'heavy burden' that material claimed in a utility patent is functional and hence unprotectable once the patent term ends, the Supreme Court, of course, expressly elected not to foreclose such protection entirely. Thus, it refused the invitation of defendant TrafFix, and 'some of its amici,' to rule that 'the Patent Clause of the Constitution, Art. I '8, cl. 8, of its own force, prohibits the holder of an expired utility patent from claiming trade dress protection.' 532 U.S. at 35. Without itself addressing the constitutional question of how narrowly 'limited times' means 'limited times,' Fuji Kogyo does nothing to ease the burden in establishing trade dress protection for once-patented subject matter; it offers as well a new (if, perhaps, less than fully developed) analytical approach for applying the TrafFix presumption, asking whether the claimed trade dress would have infringed the expired patents.

Whether calculating lost profits or performing a 'reasonable royalty' analysis under the Georgia-Pacific factors, a damages expert in a patent case is required to consider a large variety of data ' not just data from the plaintiff or the defendant, but also data from third-party sources, such as trade industry publications or market analyst reports. The admissibility of an opinion based on third-party information, however, has been a source of conflict since 1993, when the U.S. Supreme Court decided Daubert v. Merrell Dow Pharms., Inc.