Trademark fair use under the common law and '33(b)(4) of the Lanham Act has long permitted a defendant to use terms descriptively to refer to the defendant's own product or service; in contrast, the doctrine of nominative fair use permits a defendant to use a plaintiff's mark to describe the plaintiff's product or service. Unlike the common law and statutory fair use defense, the nominative fair use doctrine is a judicially created defense of relatively recent vintage. Prior to the development of the nominative fair use defense, courts occasionally declined to enjoin the copying of nondescriptive marks used to refer to the plaintiff's products or services, however, a true doctrinal basis for that result was not expressly articulated until New Kids on the Block v. News America Publishing, Inc., 971 F.2d 302 (9th Cir. 1992).
- October 01, 2003Alex S. Fonoroff
Arbitration awards are subject to limited judicial review. May parties contract to further limit the review afforded by courts to an award? The Second Circuit ruled parties may not seek to lower the standard of review of an arbitration award to be applied by a court.
October 01, 2003ALM Staff | Law Journal Newsletters |Wage claims under Section 191 of the Labor Law are a handy gadget in a plaintiff's toolbox. Such statutory claims provide not merely for recovery of lost wages but also liquidated damages equal to 25% of the total wages due as well as attorneys' fees and costs. Section 191, however, has an Achilles heel, and that is its application to supervisors and executives or, better put, its inapplicability to them.
October 01, 2003Alfred G. FeliuThe Second Circuit, in a rare venture into the realm of damages resulting from a breach of the duty of loyalty, has ruled that a "faithless servant" must surrender all income, including investment opportunities, after the date the disloyal acts began.
October 01, 2003ALM Staff | Law Journal Newsletters |Your ethics questions answered by the expert.
October 01, 2003ALM Staff | Law Journal Newsletters |In the international arena, U.S. employers should refrain from seeking to blindly impose the "American way" of drafting and implementing restrictive covenants in an attempt to harmonize their employees' working conditions all over the world. Indeed, there is simply no such a thing as a standard restrictive covenant that could be implemented whatever the location of the workplace in the world.
October 01, 2003Patrick Thi'bartRecent decisions of interest to you and your practice.
October 01, 2003ALM Staff | Law Journal Newsletters |Highlights of the latest cases that affect your practice.
October 01, 2003ALM Staff | Law Journal Newsletters |Is it safe to put your reputation in the hands of a reporter you do not know and have no reason to trust? Yes, but only if you follow the rules. Whether you are on the debtor or creditor side, following the rules will have you quoted often in the media, because reporters will know you are a good source for their bankruptcy-related stories.
October 01, 2003William J. Rochelle, III and Richard S. LevickA truism of bankruptcy is that assets available to pay creditors are few and far between. Among them are causes of action, and thus both debtors and trustees rightly hoard the right to sue third parties. Does the debtor or trustee have standing to sue when the entity brought the harm upon itself? Generally, the answer is no, and thus in this present environment of corporate misdeeds and scandals, litigation against outsiders is foreclosed by the debtor's own misfeasance.
October 01, 2003A. Michael Sabino and Lawrence A. Wander