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A recent court decision striking down the liquidated damages provision of an aircraft lease should cause lessors to rethink (and possibly redraft), their standard remedies clauses.

A fundamental tenet of equipment leasing has been the concept of "hell or high water" rental payments. Once the lease is signed and the lessee accepts the goods, then the lessee's promises under the lease become irrevocable, especially the promise to pay rent. The draftsmen of UCC Article 2A recognized this critical element and codified it with respect to a finance lease in UCC §2A-407(1)-(2) (all citations herein refer to Uniform Commercial Code Article 2A pre-2003 revisions). A finance lease is a particular type of "true" equipment lease in which the lessee itself selects the item of equipment it wants and instructs the lessor to acquire it for lease to the lessee. UCC §2A-103(g). A finance lessor is neither the manufacturer nor supplier of the item of equipment; it is merely providing the money. Article 2A of the Uniform Commercial Code (the "Code" or the "UCC") extends certain benefits to finance lessors, one of the most important of which is that the lessee's promises are not subject to termination, modification or repudiation; in other words, the lessee must comply with them come "hell or high water." UCC §2A-407(2)(b).

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The old saw is that if it walks like a duck and sounds like a duck, it must be a duck. Although bankruptcy is sometimes viewed by its detractors as defiant of common sense, the common sense duck adage is alive and well in bankruptcy courts. No matter what the parties or their lawyers may call an agreement or transaction, the courts are inclined to change the label and treatment to match what they see as the parties' true intention, risk retention, or economic reality. In bankruptcy parlance, the duck rule is called "recharacterization" and it is most commonly seen when courts are asked to consider shareholder loans, personal property leases, factoring arrangements, and asset backed securitizations. Through recharacterization, loans become capital contributions, leases become security agreements, and claimed true sales (the linchpin of factoring and securitizations) become loans. The impact of relabeling an agreement or transaction is significant. What was intended to be "bankruptcy remote" may find itself at bankruptcy central. The purpose of this article is to canvass just those situations where a lender, lessor and buyer could be very surprised, and how the recharacterization can affect the parties' expectations.

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One of the hot intellectual property topics for 2005 &mdash; and perhaps beyond &mdash; is whether the sale and use of trademarks as keywords constitutes trademark infringement, and, if so, who is liable for that infringement. How the courts ultimately resolve this issue will affect the billion-dollar Internet advertising industry, those who participate in online advertising and those seeking to prevent the unauthorized use of their trademarks on the Internet. This article discusses <i>Google v. American Blind &amp; Wallpaper Factory, Inc.</i>, 2005 U.S. Dist. LEXIS 6228 (N.D. Cal. Mar. 30, 2005), the most recent case to address the emerging issue of "markmatching" in Internet contextual advertising, and its relationship to trademark infringement.

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You are the owner of KibbleSoft, the widely used fuzzy-logic retail management software package for pet food distributors. Understanding the value of the KibbleSoft brand, you have registered the trademark and carefully policed against infringers for a number of years. And having early grasped the importance of the Internet for promoting your brand, you were also a step ahead of the cybersquatters and acquired the <i>kibblesoft.com</i> domain in 1996. Much of your business now runs through your heavy-trafficked Web site at <i>www.kibblesoft.com.</i>

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

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A means-plus-function limitation recites a function to be performed rather than definite structure or materials for performing that function. <i>Chiuminatta Concrete Concepts, Inc. v. Cardinal Indus., Inc.</i>, 145 F.3d 1303, 1307 (Fed. Cir. 1998). Such a limitation is more narrow than a counterpart written in structural format. <i>Lighting World, Inc. v. Birchwood Lighting, Inc.</i>, 382 F.3d 1354, 1361-62 (Fed. Cir. 2004). Nevertheless, patent drafters still commonly use means-plus-function limitations in computer-related patent claims for convenience sake.

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