Lulu v. Hulu: What's All of the Hullabaloo?
June 27, 2008
While the rhyming nature of these two Web sites provided entertaining fodder for journalists and bloggers, in <i>Lulu Enterprises, Inc. v. N-F Newsite, LLC, aka Hulu, LLC, et. al</i>, the court focused its denial of Plaintiff Lulu's motion for preliminary injunction not on the rhyming nature of the domain names, but upon the Plaintiff's inability to prove imminent harm from the launch of Defendant's 'hulu.com' Web site. Rather than focusing on a likelihood of confusion analysis, the court's decision instead contains useful commentary on the effects of statements made in federal registration applications, and the likely expansion of the use of the mark, as they relate to the 'imminent harm' standard in trademark and unfair competition cases.
How Not to Draft a Patent Application
June 27, 2008
Patent drafters must often write a patent application based on minimal disclosure. Some practitioners take pride in their ability to do so. However, several recent landmark court cases have substantially increased the risk that a patent drafted in this manner will be unenforceable.
Twice the Remedy? Dual Recovery in Copyright and Trademark Law
June 27, 2008
In another Ninth Circuit case involving Microsoft Corporation, a district court ruled last fall that a software company is entitled to recover statutory damages under both the Copyright and Lanham Acts against those who sell and distribute counterfeit software, where the software maker suffers distinct injuries to different interests as a result of the infringement. <i>Microsoft v. Evans</i>. This Eastern District of California decision reflects what may be a growing trend regarding the issue of awarding statutory damages under both copyright and trademark law for a single act that violates aspects of both statutes.
Case Briefs
June 27, 2008
Alaska Supreme Court Enforces Pollution Exclusion
Supreme Court Ruling in Integrity Is 'Absolute' for Reinsurers
June 27, 2008
In a ruling that affects both insurance and reinsurance companies as well as policy-holders of insolvent insurers subject to the New Jersey's Insurer Liquidation Act, the New Jersey Supreme Court, in a 3-2 decision in a case of first impression, definitively excluded contingent claims that are 'incurred but not reported' from sharing in the distribution of assets of an insolvent insurer.
Bi-Economy and Panasia: A Differing View
June 27, 2008
Policyholder counsel have heralded the recent New York Court of Appeals' decisions in <i>Bi-Economy</i> and <i>Panasia</i> as victories for insureds due to the court's recognition, in certain circumstances, of claims for consequential damages beyond the limits of an insurance policy. However, a close reading of the majority opinions in these cases demonstrates that the Court of Appeals has taken only a tentative step in the direction of allowing claims under New York law for damages beyond policy limits. Based on the analytical construct used by the court to address the policyholders' claims in these cases, insurers have several avenues to challenge the application of these holdings to future cases and may ultimately limit these decisions to the specific facts under which they were decided.
Notice-of-Circumstances Provisions in Claims-Made Policies
June 27, 2008
As insurers under D&O policies respond to the claims activity likely to be generated by the subprime mortgage crisis, they should consider whether their policyholders are complying with notice provisions commonly found in 'claims-made' policies dealing with notice of potential claims and the submission of claims outside of the current policy period. This easily overlooked issue has potentially serious consequences for an insurer ' affecting the scope of its coverage obligations and the exposure of its limits. In coverage litigation, courts have often found that policyholders who fail to comply with these 'notice-of-circumstances' clauses are not entitled to coverage.
Marketplace
June 27, 2008
Highlights of the latest equipment leasing news from around the country.
Global Warming Litigation
June 27, 2008
In-house counsel and executives within the railroad, logistics, and transportation industries need to be aware of an increasing likelihood of litigation-related to global warming. In the wake of the U.S. Supreme Court's 2007 decision in <i>Massachusetts v. EPA</i>, suits have been filed seeking to impose liability on companies whose activities emit carbon dioxide. As additional suits arise, they will doubtless reach companies in the oil, electric power, auto, and railroad sectors. These developments raise an important question: Are companies in transportation-related fields adequately prepared for the acceleration of climate change-based tort cases that their industry will likely encounter in the near future?
