The Use Of Trademarks To Trigger Internet Advertising
March 30, 2006
On Feb. 7, 2006, the Tenth Circuit Court of Appeals affirmed a judgment of trademark infringement in favor of manufacturers of tanning lotions against several unauthorized distributors. The defendants had paid for preferential search engine listings when computer users searched for plaintiffs' trademarks and has also placed plaintiffs' trademarks in the metatags of their Web sites (metatags are internal Web site coding often used by search engines to identify the content of Web sites).
Intellectual Asset M&A Due Diligence and Risk Management
March 29, 2006
In a typical corporate merger or acquisition, the associated intellectual assets exhibit several concurrent financial behaviors. On the balance sheet, intellectual assets behave like financial derivatives. On the asset side of the balance sheet, an intellectual asset creates the opportunity but not the obligation for an owner to capture above-average 'rents' from the sale of patented and/or branded goods and services ' a call option. An intellectual asset also creates the opportunity but not the obligation for an owner to assert patent rights against someone else, even if the owner is not using the rights otherwise ' a put option. On the liability side of the balance sheet, an intellectual asset holder may find himself targeted as a defendant where a host of incurred but not reported ('IBNR') historic events comprise a Pandora's box of expensive 'issues.' Hence, intellectual assets by their nature tend to generate volatile returns if the owner does not fully appreciate and manage associated risks.
Medicare Liens
March 29, 2006
Faced with rising litigation costs and unpredictable juries, it is understandable that many product liability litigants ' on both sides of the courtroom ' eventually think about settlement in lieu of trial. In cases involving catastrophic injury, however, staggering medical expense liens often control the feasibility of reaching an acceptable agreement. Some lawyers have long dreaded settlement negotiations when Medicare is the major lien holder, because Medicare can be the proverbial 800-pound gorilla at the table. Unfortunately, with the enactment of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MPDIMA) the gorilla has only gotten bigger. To have any chance at taming the Medicare beast, lawyers on both sides need to understand the reach of a Medicare lien, as well as potential avenues for reducing or eliminating Medicare's interest in the settlement proceeds.
Recognizing a Problem Is the First Step: Federal Circuit Acknowledges Unsettled Law, But Declines to Clarify
March 29, 2006
The tort of induced patent infringement codified in 35 U.S.C. '271(b) is a powerful tool that patent owners can use when it is not feasible or practical to sue a direct infringer. In order to prove this claim, a patent owner must establish that 1) its claim is directly infringed by a third party, 2) that the defendant induced that third party to infringe, and 3) that the defendant possessed intent to encourage that party to infringe.
Online: Investigate Product Safety on the Web
March 29, 2006
The U.S. Consumer Product Safety Commission is charged with protecting the public from unreasonable risks of serious injury or death from more than 15,000 types of consumer products under the agency's jurisdiction. It works to ensure the safety of consumer products — such as toys, cribs, power tools, cigarette lighters, and household chemicals, and claims it has contributed significantly to the 30% decline in the rate of deaths and injuries associated with consumer products over the past 30 years. The site, <i>www.cpsc.gov</i>, offers information (in English and Spanish) that could help protect consumers and families from products that pose a fire, electrical, chemical, or mechanical hazard, or can injure children.
Another View: Corporate Cooperation Taken to New Lows
March 29, 2006
The Deferred Prosecution Agreement (DPA) entered into between KPMG and the U.S. Attorney's Office for the Southern District of New York on Aug. 29, 2005, is just the latest example of the federal government's perverting the notion of corporate cooperation, so that 'cooperation' means uttering only the words that the government authorizes. Corpora-tions are increasingly faced with the option of being put out of business or capitulating to the demands of overzealous prosecutors who possess seemingly unchecked powers. The ability of prosecutors to force corporations to accept a full complement of draconian provisions too frequently results in individual employees' being left behind to take the fall for the 'good' of the company. KPMG's acceptance of the terms of the DPA is a clear example of how these prosecutorial powers can strip individuals of their constitutional rights.
Case Notes
March 29, 2006
Highlights of the latest product liability cases from around the country.
CPSC Gets Aggressive About Failure to Report
March 29, 2006
In the last few years, the compliance staff of the U.S. Consumer Product Safety Commission has sought a number of significant civil penalties for failure to report or for late reporting. It is instructive to look at recent civil penalty cases to see what is important to the CPSC staff in assessing the appropriateness and level of penalties. First, however, let's examine the reporting requirements.
Does Your Client Owe a Duty to Protect the Public from the Misconduct of Third Parties?
March 29, 2006
The April 19, 1995 Oklahoma City bombing stunned the nation, not only because of the horrific nature of the act itself, but because no one thought that products as common as agricultural fertilizer and motor-racing fuel could be used to incinerate a federal building. Six years later, the 9/11 terrorist attacks again sent the nation into shock at the idea that a group of people would commit a suicide attack by taking control of four planes and crashing them into multiple buildings. These violent attacks are proof that common products are being used, and oftentimes manipulated, in an improper manner for improper uses. Consequently, the victims of such attacks are suing manufacturers and handlers of these common products for alleged negligence, even though a third party committed the act in question. If your client is a manufacturer or handler of a product, how can you help protect it from liability?
Putting Plaintiff to the Test: The Crashworthiness Doctrine
March 29, 2006
When faced with a 'crashworthiness case,' manufacturers in the automotive, trucking, or aircraft industries enjoy a distinct legal advantage over the plaintiff. Indeed, in the many jurisdictions where the crashworthiness doctrine is recognized, the plaintiff's burden of proof in such cases is dramatically higher than in the standard product liability action. In the automotive context, these cases are sometimes referred to as 'second collision' cases because the manufacturer's liability is based not upon the 'first collision' between the vehicles involved in the accident, but the 'second collision' comprised of the physical contact made between the plaintiff's body and the vehicle's interior.
