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Features
On June 27, 2005, the Second Circuit overturned a lower court's determination that an Internet advertising company's delivery of targeted, contextually relevant pop-up ads constituted trademark infringement. The plaintiff, 1-800 Contacts, Inc. ("1-800"), sued WhenU.com ("WhenU") for trademark infringement as well as multiple other federal copyright, state infringement, and common law claims. The Second Circuit limited its review of the case to the plaintiff's Lanham Act claim, remanding the rest of 1-800's claims back to the district court.
To rely on the dictionary or not to rely on the dictionary, and to what extent, that is the question. A question which after frenzied anticipation by the patent bar, the <i>en banc</i> U.S. Court of Appeals for the Federal Circuit, in its July 12, 2005 landmark decision of <i>Phillips v. AWH Corp.</i>, No. 03-1269, -1286, 2005 U.S. App. LEXIS 13954 (Fed. Cir. July 12, 2005), has answered: While dictionaries may be useful to assist in the understanding of a commonly understood meaning of a claim term, the proper starting point is the patent specification and corresponding prosecution history.
Highlights of the latest intellectual property news from around the country.
Features
In a little-noticed and as yet un-cited alternative holding last year, the U.S. Court of Appeals for the Fourth Circuit undermined a previously unbroken line of cases holding that electronic copies of digital works are "fixed" within the meaning of the Copyright Act if they exist in the random access memory ("RAM") of a computer. <i>CoStar Group, Inc. v. LoopNet, Inc.</i>, 373 F.3d 544 (4th Cir. 2004).
Features
A Manhattan federal district court declined award attorney fees to defendant booking agents and concert promoters who prevailed in a suit by black concert promoters alleging race discrimination in concert bookings. <i>Rowe Entertainment Inc. v. The William Morris Agency Inc.</i>, 98 Civ. 8272 (RPP).
Features
Highlights of the latest franchising cases from around the country.
Highlights of the latest franchising news from around the country.
Features
The staff of the Federal Trade Commission ("FTC") that administers the FTC's Franchise Rule issues informal staff advisory opinions in response to inquiries concerning the applicability of the Rule. So far during 2005, the FTC staff has issued three such opinions.
In a decision that all franchisors need to note, on Aug. 4, 2005 the California Supreme Court ruled that pre-dispute waivers of a jury trial in a civil matter are unconstitutional under the California constitution. Many commercial agreements include a pre-dispute waiver of a jury trial so that businesses that prefer not to submit disputes to arbitration can elect to litigate claims and have their disputes heard by a judge rather than submit to a jury trial. The high court in <i>Grafton Partners v. Superior Court (PricewaterhouseCoopers)</i>, 2005 Cal. LEXIS 8586, 4 (2005), affirmed an appellate court's decision to reject the 1991 appellate court decision upholding pre-dispute waivers of jury trials in <i>Trizec Properties Inc. v. Superior Court</i>, 229 Cal.App.3d 1616 (1991). This case will alter the way commercial contracts — from joint venture agreements, to franchise agreements, real estate leases and other contracts — are written. The <i>Grafton</i> decision is a call to California-based franchisors, and franchisors with franchises in California, to take stock of their decisions and provisions regarding dispute resolution.
In the first installment, published in July, we provided the background and general arrangements and actions 7-Eleven used in developing a new franchise agreement for virtually its entire 3400-store franchise system. In this installment, we discuss what occurred and why and what was learned from this effort. Please refer to the first installment for defined terms.
