What Counts As an Exaction?
In <i>Nollan v. California Coastal Commission</i>, 483 US 825, and <i>Dolan v. City of Tigard</i>, 512 US 374, the United States Supreme Court established that constitutional scrutiny of government exactions is more stringent than constitutional scrutiny of other land use controls. Last month, the New York Court of Appeals addressed an issue not fully resolved by Nollan and Dolan: What counts as an exaction for takings clause analysis?
IP News
Highlights of the latest intellectual property news and cases from around the country.
The Wrong Box: <i>U.S. v. Martignon</i> Not a Copyright Case
A prominent court, the U.S. District Court for the Southern District of New York, has rendered what may become a prominent opinion in the copyright arena, <i>U.S. v. Martignon</i>, No. 03 Cr. 1287 (S.D.N.Y. Sept. 27, 2004). Unfortunately, the analysis in the decision misses the essential point that the issue was not really one of copyright.
Expanded Protection Under 35 U.S.C. '103(c) via the CREATE Act
On Dec. 10, 2004, 35 U.S.C. '103(c) was amended to expand the common ownership exception for prior art available under ''102(e), (f) and (g). <i>See</i> Cooperative Research and Technology Enhancement Act of 2004, Pub. L. 108-453, 118 Stat. 3596 (2004) (CREATE Act). The U.S. Patent and Trademark Office (USPTO) has published proposed rules to implement the CREATE Act and is currently accepting comments until Feb. 10, 2005. Changes to Implement the Cooperative Research and Technology Enhancement Act of 2004, 70 Fed. Reg. 1818 (2005) (proposed Jan. 11, 2005).
Fair Use Defense: No Burden on Defendant to Prove Absence of Confusion
On Dec. 8, 2004, the U.S. Supreme Court held that a party raising the statutory affirmative defense of fair use to a charge of trademark infringement does not have an independent burden to negate the likelihood of any confusion as to the source or origin of the trademark accused of infringement. <i>KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc.</i>, 543 U.S. ___, 2004 U.S. LEXIS 8170 (2004). The decision resolved a split between the circuits on the statutory, or "classic," fair use defense to trademark infringement.
In the Spotlight: Negotiating Relocation Provisions
Relocation provisions, particularly in retail leases, often spark heated negotiations between the parties. The landlord wants to preserve flexibility to reconfigure its shopping center and/or accommodate the needs of prospective tenants. Relocating can cause uncertainty, disruption and significant hardship for tenants, especially for retail business tenants that highly value location and visibility.
Mutual Waiver and Waiver of Subrogation Provisions in Commercial Leases
In commercial leases, the mutual waiver of claims for damage to property and its corollary, the waiver of subrogation by property insurers, continue to be the source of substantial confusion. Much of the confusion appears to spring from a lack of understanding of just what the waivers are intended to achieve and how they achieve it. The hypothetical below and the discussion that follows examine the rationale for these waivers, how they work and how certain other standard lease provisions should be brought into conformity with them.
How Smart Tenants Lease Brownfields
Increasingly today more prime locations for tenants are situated on land that was previously used for industrial or commercial uses and now has real or perceived environmental contamination. As these often called "brownfield" sites are redeveloped, they become attractive locations for leased space. These sites can be in urban centers where available space for development is scarce. The location can be convenient for a developed market of customers which a tenant can capture from absent competitors. Where once a tenant might not consider an investment in such a tainted location, now a tenant must avoid the temptation to overlook the risks. These risks do not apply only to industrial tenants or ground lessees. How a tenant evaluates and manages the risk will determine if a lease of brownfield property is a smart decision.
