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Rule 68 of the Federal Rules of Civil Procedure provides a defendant with a means to encourage parties to settle their litigation before trial. A defendant may serve a plaintiff with an "an offer to allow judgment to be taken against [defendant] for the money or property or to the effect specified in the offer, with costs then accrued." F.R.C.P. 68. If the offer is not accepted by the plaintiff, and the "judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer." <i>Id.</i>
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When is a proceeding not a proceeding, or more precisely, when is a proceeding affecting a mark not a proceeding affecting a mark? No mere word game, the answer can have a profound impact on foreign trademark owners who routinely (and perhaps unthinkingly) appoint their U.S. attorneys as agents to accept service in proceedings affecting their marks. The answer ' or at least an answer ' recently was provided by the U.S. District Court for the Eastern District of California in <i>E&J Gallo Winery v. Cantine Rallo, S.p.A.</i>, slip op. 1:04 cv 5153 (OWW) (Aug. 17, 2005), where just such a profound impact faced an Italian winery with a long history whose American counsel accepted service of a summons and complaint in an infringement suit, but made only fleeting efforts to alert his foreign client. The court vacated a default judgment that threatened to terminate a 50-year business in this country because the domestic attorney designated by the foreign trademark applicant under 15 U.S.C. §1051(e) to receive service in "proceedings" affecting the mark was deemed not authorized to receive service in a "litigation" affecting the mark. (The defendant's failure to answer was also deemed excusable neglect. Following the default, the author is now representing the defendant.)
Over the years, courts frequently have been called upon to determine the nature and extent of the diligence required of licensees, assignees and other parties granted exclusive rights to exploit intellectual property. Dating back to Justice Benjamin N. Cardozo's opinion in <i>Wood v. Lucy, Lady Duff-Gordon</i>, 222 N.Y. 88, 118 N.E. 214 (1917), the courts consistently have held such parties to an implied promise to exercise some measure of diligence to commercialize the transferred property in those cases in which the grantor was completely reliant upon the productivity of the intellectual property user to generate royalties or other consideration.
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Highlights of the latest franchising cases from around the country.
The tide of franchising regulation continued to sweep across Europe as Belgium brought its new franchise disclosure law into effect.
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A working draft of a paper by three Australian academic researchers offers some insights about why franchisees choose to leave franchising systems and, more importantly, what franchisors can do to make the exits less likely to happen and less likely to lead to litigation when they do. The researchers are Lorelle Frazer, Bill Merrilees, and Owen Wright, from the Service Industry Research Centre, Griffith University, Brisbane, Australia.
Highlights of the latest franchising news from around the country.
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U.S. Senators Turning Up Heat on Peer-to-Peer Pirates Lawmakers pushed federal authorities last month to crack down on peer-to-peer (P2P) services that…
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Highlights of the latest product liability cases from around the country.
Secretary of the Department of Homeland Security ("DHS") Michael Chertoff told the U.S. Chamber of Commerce that the DHS is seeking to shield more anti-terror research companies from product liability suits. Since January 2005, the DHS has overcome its reluctance to limit product liability for many research and development companies that manufacture anti-terror technology. There is still, however, debate over liability protections afforded by legislation to shield manufacturers of bioterrorism vaccines.
