The threat of enhanced damages, particularly in the hands of a jury, can have a considerable effect influencing the strategic conduct of litigation. Assuming some merit to a claim — at least sufficient to withstand summary judgment — the possibility of a verdict doubled or trebled or otherwise multiplied to deter or punish perceived willful, malicious conduct, perhaps representing many times the plaintiff's actual damages or the defendants' profits, can indeed be something of a gun to the head. To some plaintiffs seeking to vindicate a perceived wrong, the prospect of punitive damages can, of course also be something akin to the brass ring, adding extra incentive spurring pursuit of a verdict to the very end, even in a case that might otherwise settle.
- December 30, 2004Jonathan E. Moskin
Section 2(e) of the Lanham Act provides that no trademark shall be refused registration unless it consists of a mark which when used on or in connection with the goods or services of the applicant is merely descriptive or deceptively misdescriptive of them. Despite this caveat, trademark owners gravitate toward descriptive marks because they easily convey to the intended user something about the nature or characteristics of the goods or services. Because of that easy association, some trademark owners believe that they can obtain "exclusive" rights to a mark without having to expend the large amounts of money typically required to educate consumers of the connection between a mark and the goods or services with which it is associated when a less descriptive mark is adopted. For those who are keen to register marks that have some descriptive qualities but also hold the capacity for distinctiveness, taking appropriate precautions in preparing the application and presenting evidence of distinctiveness to the Patent and Trademark Office may greatly increase the likelihood of obtaining a Principal Register registration.
December 30, 2004Christopher P. Bussert and Christine P. JamesThe risk of oil pollution liability for financial lessors of vessels operating in U.S. waters under the Oil Pollution Act of 1990 ("OPA 90"), 33 U.S.C. §2701 et seq., has been substantially ameliorated under new U.S. legislation, thereby restoring leasing as a more lessor-friendly financing option for vessels that trade in U.S. waters.
December 30, 2004Nancy L. HengenAt the launch of its annual sales meeting, a senior executive of an international company remarked that if the payment obligation had a hell or high water payment obligation, his company would try to finance it.
December 30, 2004Jonathan FleisherThis article is the last installment of a series published in November and December addressing the practice of having bankruptcy counsel get involved in lease deals from the outset.
December 30, 2004Shelly RothschildHighlights of the latest equipment leasing news from around the country.
December 30, 2004ALM Staff | Law Journal Newsletters |Highlights of the latest insurance cases from around the country.
December 30, 2004ALM Staff | Law Journal Newsletters |Previously we have addressed the issues of fraud at the inception of an insurance claim, a carrier's analysis of fraudulent claims and the use of forensic experts to investigate and defend claims. This article will focus on the role of the carrier's Special Investigation Unit ("SIU") in investigating and defending against fraudulent insurance claims and the role of SIU counsel in the investigative process.
December 30, 2004Anthony J. Golowski IIDirect insurance contracts, like other commercial agreements, can be structured to provide for arbitration as the chosen means of dispute resolution. See, e.g., Michael Ha, Arbitration Boosts Efficiency: Alliance, National Underwriter, March 17, 2003. Despite the perceived efficiencies of arbitration, some groups have pushed for widespread regulation of the use of arbitration clauses in commercial insurance contracts. See Mandatory Arbitration on NAIC Agenda, Insurance Chronicle, Feb. 3, 2003. Thus far, those opposed to arbitration clauses in insurance contracts have focused their efforts on persuading individual state regulators to restrict or ban the inclusion of mandatory arbitration clauses. See id.
December 30, 2004Kenneth W. Erickson and Bryan R. DiederichFRCP 26(a)(2)(B) governing the disclosure of expert witnesses in federal court was adopted in 1993 with the hope that "the length of the deposition of such experts should be reduced, and in many cases the report may eliminate the need for a deposition" altogether. Advisory Committee Notes, Fed. R. Civ. Pro., Rule 26, 28 U.S.C.A. (1993).
December 30, 2004John L. Tate