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In June, the Supreme Court affirmed the power of municipal redevelopment agencies to take property by eminent domain in order to assemble large parcels for economic development. <i>Kelo v. City of New London</i>, No. 04-108 (U.S. June 23, 2005) held that a municipality may take private homes in good condition to transfer them to a private developer as a part of an integrated plan to redevelop an area of New London. This use of eminent domain did not violate the "public use" requirement of the Takings Clause of the Fifth Amendment that, at its core, prohibits the government from taking private property solely to transfer it to another private person to serve a private interest. Kelo follows the Court's decision in <i>Lingle v. Chevron U.S.A. Inc.</i>, 125 S. Ct. 2074 (2005), where the Court ruled that a state statute that was not reasonably calculated to achieve its stated goal was not, by virtue of that irrationality, an unconstitutional taking. (In that case, the statute imposed a cap on the rent that oil companies could charge service station owners in Hawaii in order to achieve the stated goal of lower gasoline prices.)
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Under U.S. law, the resale of imported genuine goods bearing a valid U.S. trademark generally does not constitute trademark infringement. This is in part because, under the first sale doctrine, the trademark protections under U.S. law can be exhausted after the trademark owner's first authorized sale anywhere of the product bearing the trademark. Thus, U.S. law does not generally preclude the sale of identical genuine goods bearing a legitimate trademark even if the sale in the United States is unauthorized by the trademark owner.
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Highlights of the latest intellectual property news from around the country.
Features
When it comes to sending promotional messages to wireless devices, such as through e-mail or short message service ("SMS"), there is more than one reason to be confused. First, there are two different federal laws that apply to messages that end up on wireless devices such as cell phones. The Controlling the Assault of Non-Solicited Pornography and Market Act (the "CAN-SPAM Act"), 15 U.S.C. §7701 <i>et seq.</i> and 18 U.S.C. §1037, applies if the address that is used to send the message consists of a username and a domain name. (Commonly, if the wireless device is a cell phone, the username would be the number of the cell phone and the domain name would be the domain name of the wireless carrier. If the wireless device is of some other type, the address may be formulated differently.) The applicable rule is: If the address has a domain name in it, the CAN-SPAM Act's wireless e-mail regulations apply.
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Until recently, U.S. software companies comfortably operated under the assumption that selling software that was copied from a "golden master" CD outside of the United States, and which was sold only to customers outside of the United States, did not infringe U.S. patents. Recent developments in the law have destroyed that comfort and made clear that infringement liability may very well lie for exactly those types of foreign sales.
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Every year is filled with new opportunity and as Henry Ford said: "If you think you can do a thing or think you can't do a thing, you are right." So, take a step back as a management team and look at what's happening in the legal market.
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A complete listing of cases covered in this issue.
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Discussion of recent cases.
Federal statutes provide for forfeiture of real property used in conjunction with a variety of criminal activity. Although the primary focus of federal civil forfeiture statutes has been on drug-related offenses, the reach of these statutes now extends to a variety of other crimes. A recent Southern District case, however, raises an issue not explicitly resolved by the forfeiture statutes: when is the property of a corporate owner subject to forfeiture?
