News

Case Summaries

Commercial Law

[11/20] Hukic v. Aurora Loan Serv.
In plaintiff's suit against defendants claiming breach of contract, tortious interference, and violation of the Fair Credit Reporting Act, arising from a six-figure mortgage he obtained at an interest rate of 10.65% where he was to make monthly payments as well as taxes, insurance premiums and other charges and fees, summary judgment in defendants' favor and dismissal of plaintiff's claims for defamation and intentional infliction of emotional distress is affirmed because plaintiff did not comply with the terms of his agreement that required him to submit proof of payment.

[11/19] Davis v. Ford Motor Credit Co.
In plaintiff's action against the Ford Motor Credit Company (Ford) claiming that Ford's billing practices under a retail installment sales contract in charging late fees is prohibited by the Rees-Levering Motor Vehicle Sales and Finance Act, and actionable under Unfair Competition Law and the Consumers Legal Remedies Act, dismissal of the suit is affirmed where: 1) Ford's conduct of charging successive late fees for successive late payments does not violate Civil Code section 2982(k)'s prohibition on charging more than one late fee per delinquent installment; 2) plaintiff cannot allege Ford's billing practice is an unfair business practice within the meaning of UCL because the alleged injury is one plaintiff reasonably could have avoided; and 3) although Ford was the prevailing party, it cannot recover its attorney's fees pursuant to the Rees-Levering's reciprocal attorney's fees provision because the alleged Rees-Levering violation was merely a predicate to the UCL claims, and a prevailing defendant cannot recover attorney's fees under the UCL.

[11/19] Iovate Health Sci., Inc. v. Bio-Engineered Supplements & Nutrition, Inc.
In a patent case involving nutritional supplements containing a ketoacid and an amino acid to enhance muscle performance or recovery from fatigue, summary judgment holding certain of plaintiff's patent claims invalid as anticipated is affirmed as the Professional Protein advertisement constitutes an anticipatory printed publication under section 102(b) that invalidates the asserted claims of the patent as: 1) the ad discloses each and every claim limitation as a matter of law; and 2) a person of skill in the art, combining his or her knowledge of the art with the advertisement's suggestions, would have considered the advertisements to be enabled.

[11/16] Corey Airport Servs., Inc. v. DeCosta
In an action by an advertising display company claiming that defendants conspired to ensure that a competing bidder on a municipal project would be awarded the contract, even though acceptance of plaintiff's bid would have been in the best interest of the city, denial of summary judgment based on qualified immunity is reversed where the Supreme Court's broad statement that the unequal application of facially neutral law with the intent to discriminate may violate the Equal Protection Clause, in and of itself, did not offer defendants fair warning that their treatment of plaintiff was unconstitutional.

[11/13] Kim Seng Co. v. Great Am. Ins. Co. of New York
In a dispute over whether plaintiff's insurer had a duty to defend and indemnify plaintiff in a trademark infringement action under an "advertising injury" policy, summary judgment for insurance company is affirmed as the prior publication exclusion in the policy bars coverage for trademark infringement in this case.

[11/13] Hawknet, Ltd. v. Overseas Shipping Agencies
In an appeal from the district court's order vacating the attachment of an electronic funds transfer (EFT), the order is affirmed and the case is remanded for an order to show cause why the action should not be dismissed for lack of personal jurisdiction where: 1) the rule announced recently in Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., __ F.3d __, No.08-3477, 2009 WL 3319675 (2d Cir. Oct. 16, 2009), applies retroactively; and 2) a party's failure to assert an argument prior to the announcement of a decision which might support it does not constitute waiver.

[11/12] South Bay Boston Mgmt., Inc. v. Unite Here, Local 26
District court's grant of defendant-union's motion to compel arbitration and denial of plaintiff's petition for declaratory judgment is affirmed where: 1) the Union neutrality agreement at issue was not void ab initio; and 2) the arbitration clause of the agreement remained in effect.

[11/10] Princess Cruise Lines, Ltd. v. Sup. Ct.
In plaintiffs' suit against the defendant-Cruise Line brought under the California's Unfair Competition Law (UCL), the False Advertising Law (FAL), and the Consumer Legal Remedies Act (CLRA), over charges added to the price of shore excursions taken during a cruise, trial court's order denying defendant's motion for summary judgment is vacated and remanded where: 1) trial court erred in concluding that the CLRA cause of action was barred by Civil Code 1781(c); 2) a plaintiff asserting UCL, FAL and CLRA must show that he or she relied on the defendant's misrepresentations; 3) plaintiffs did not rely on any representations made by defendants; 4) there are no material questions of fact about the cost of excursions.

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Contracts

[11/20] Hukic v. Aurora Loan Serv.
In plaintiff's suit against defendants claiming breach of contract, tortious interference, and violation of the Fair Credit Reporting Act, arising from a six-figure mortgage he obtained at an interest rate of 10.65% where he was to make monthly payments as well as taxes, insurance premiums and other charges and fees, summary judgment in defendants' favor and dismissal of plaintiff's claims for defamation and intentional infliction of emotional distress is affirmed because plaintiff did not comply with the terms of his agreement that required him to submit proof of payment.

[11/20] Curia v. Nelson
In parties' dispute over the terms of a stock purchase agreement entered into in 1989 and several modification of the agreement over the next decade involving a small number of shares in two automobile dealerships and whether the contract also gave plaintiff option to purchase remaining shares, summary judgment in plaintiff's favor is reversed as extrinsic evidence is required to clarify what the parties meant because the contract as modified is reasonably susceptible to both parties' interpretation and is therefore ambiguous regarding the survival of the options.

[11/20] PPG Indus., Incorp. v. Int'l Chem. Workers Union Council of the United Food and Commercial Workers
District court's order vacating an arbitrator's award in favor of a union on the ground that the arbitrator exceeded his authority by adding a term to the underlying contract is reversed and remanded as, even if the arbitrator erred, he acted within the scope of his authority under the contract.

[11/19] Dealer Computer Servs. Inc. v. Old Colony Motors Inc.
In an action under 9 U.S.C. section 4 to compel defendant to pay a deposit in the underlying arbitration between the parties, an order requiring defendant to pay is reversed where the issue of whether defendant should be required to pay was a procedural issue left to the discretion of the arbitrators.

[11/19] Martco Ltd. Pshp. v. Wellons Inc.
In an action against an insurer seeking coverage for an underlying lawsuit regarding defects in a heating system installed by plaintiff, summary judgment for defendant is reversed where: 1) defendant had a duty to defend the underlying suit in light of the language of the policy and the allegations of the underlying complaint; and 2) the "work product" exclusion in the policy did not preclude recovery.

[11/19] Hoffman v. Smithwoods RV Park, LLC
In plaintiff's suit against the defendant-Mobile Park for refusing to permit the installation of a new mobile home in its mobile home park to replace an older one that plaintiff had inherited, trial court's dismissal of plaintiff's suit is affirmed where: 1) the complaint fails to state a cause of action for statutory violation; 2) the complaint fails to state a tort cause of action for interference with contract; 3) the complaint fails to state a contract cause of action; and 4) the trial court did not abuse its discretion in denying leave to amend.

[11/19] Davis v. Ford Motor Credit Co.
In plaintiff's action against the Ford Motor Credit Company (Ford) claiming that Ford's billing practices under a retail installment sales contract in charging late fees is prohibited by the Rees-Levering Motor Vehicle Sales and Finance Act, and actionable under Unfair Competition Law and the Consumers Legal Remedies Act, dismissal of the suit is affirmed where: 1) Ford's conduct of charging successive late fees for successive late payments does not violate Civil Code section 2982(k)'s prohibition on charging more than one late fee per delinquent installment; 2) plaintiff cannot allege Ford's billing practice is an unfair business practice within the meaning of UCL because the alleged injury is one plaintiff reasonably could have avoided; and 3) although Ford was the prevailing party, it cannot recover its attorney's fees pursuant to the Rees-Levering's reciprocal attorney's fees provision because the alleged Rees-Levering violation was merely a predicate to the UCL claims, and a prevailing defendant cannot recover attorney's fees under the UCL.

[11/19] Dowell v. Pacesetter, Inc.
In plaintiffs' suit against the defendant to enjoin it from enforcing noncompete and nonsolicitation clauses in employment agreements used in California, trial court's ruling that the clauses were facially void under Business and Professions Code section 16600 and that their use violated California's Unfair Competition Law and that defendant's unclean hands defense and its cross-complaint for unfair competition failed as a matter of law is affirmed where: 1) the trial court properly determined that the clauses were void as a matter of law, that no defense applied and that the cross-complaint failed to state a cause of action; and 2) trial court did not abuse its discretion in denying a permanent injunction and costs

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Copyright

[11/05] Schrock v. Learning Curve Int'l, Inc.
In plaintiff's copyright infringement action against defendant who had hired him to take photos of the "Thomas & Friends" toy train characters for use in promotions, district court's dismissal of his complaint is reversed where: 1) the photos qualify for the limited derivative-work copyright provided by section 103(b) as plaintiff's artistic and technical choices combine to create a two-dimensional image that is subtly but nonetheless sufficiently his own; and 2) district court erred in concluding that plaintiff needed defendant's permission to copyright the photos, as there is nothing in the Copyright Act requiring the author of a derivative work to obtain permission to copyright his work from the owner of the copyright in the underlying work.

[11/04] Bridgeport Music, Inc. v. UMG Recordings, Inc.
In plaintiff's copyright-infringement case against defendant for infringement of its copyright on George Clinton's song, based on the use of the phrase "Bow wow wow, yippie yo, yippie yea", district court's finding that defendant willfully infringed plaintiff's rights in the song and an award of statutory damages of $88,980 are affirmed where: 1) the jury instructions were not erroneous as a matter of law; and 2) the district court did not abuse its discretion in declining to give the instructions requested by the defendant.

[10/21] Bridgeport Music, Inc. v. Universal-MCA Music Publ'g., Inc.
In plaintiffs' lawsuit against defendants, alleging copyright infringement and various state law claims relating to the use of samples in rap recordings, district court's denial of defendants' motion requesting that attorney's fees be imposed as a condition of granting plaintiffs' motions to voluntarily dismiss without prejudice the twenty cases at issue is affirmed as the district court did not abuse its discretion either by failing to provide specific reasons for its decision, or by deciding not to impose attorney's fees as a condition of dismissal under Rule 41(a)(2).

[09/25] Cincom Sys., Inc. v. Novelis Corp.
In a copyright infringement case involving software licensing agreements, district court's summary judgment to plaintiff is affirmed as defendant did not abide by the express terms of plaintiff's license and gain prior written approval before impermissibly transferring the software license when it underwent internal reorganization.

[09/16] Art Attacks Ink, LLC v. MGA Ent'mt. Inc.
In a copyright, trademark, and trade dress infringement action, judgment as a matter of law for defendant on copyright and trade dress infringement claims is affirmed where: 1) defendant did not timely move for judgment as a matter of law, but the time limit under Fed. R. Civ. P. 50(b) is not jurisdictional; and 2) plaintiff failed to demonstrate that defendant had access to plaintiff's copyrighted works or that plaintiff's trade dress had acquired secondary meaning.

[08/24] SCO Group, Inc. v. Novell, Inc.
In an action for slander of title regarding statements made by defendant about its alleged ownership of certain software copyrights, summary judgment for defendant is reversed where: 1) the parties' agreement satisfied the Copyright Act's writing requirement; and 2) the admissible evidence concerning the ambiguous contract language regarding copyright ownership was not so one-sided as to warrant summary judgment.

[08/21] Arista Records, LLC v. Launch Media, Inc.
In a copyright infringement action, an order finding that LAUNCHcast, a music webcasting service that provides users with individualized internet radio stations, did not constitute an interactive service under 17 U.S.C. 114(j)(7) is affirmed where: 1) a user could not request a particular song on demand through defendant's service; and 2) defendant's service did not provide a program specially created for the user.

[08/14] R.W. Beck, Inc. v. E3 Consulting, LLC
In a copyright infringement action based on Defendant's alleged copying of Plaintiff's independent-engineer reports, summary judgment for Defendant is affirmed in part, where Plaintiff's state-law claims were preempted by the Copyright Act; but reversed in part, where Plaintiff created genuine disputes of material fact by presenting evidence that: 1) Plaintiff did not take the language in its copyrighted reports from a third-party report; and 2) the copyrighted reports derived their language from earlier, nonpublic reports prepared by Plaintiff.

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Dispute Resolution & Arbitration

[11/20] PPG Indus., Incorp. v. Int'l Chem. Workers Union Council of the United Food and Commercial Workers
District court's order vacating an arbitrator's award in favor of a union on the ground that the arbitrator exceeded his authority by adding a term to the underlying contract is reversed and remanded as, even if the arbitrator erred, he acted within the scope of his authority under the contract.

[11/19] Dealer Computer Servs. Inc. v. Old Colony Motors Inc.
In an action under 9 U.S.C. section 4 to compel defendant to pay a deposit in the underlying arbitration between the parties, an order requiring defendant to pay is reversed where the issue of whether defendant should be required to pay was a procedural issue left to the discretion of the arbitrators.

[11/12] Cassel v. Sup. Ct.
In plaintiff's legal malpractice suit, his request for writ of relief from two orders excluding evidence in favor of his former attorneys is granted and the orders vacated as the communications are a client and his attorney, outside the presence of, and not otherwise communicated to, any opposing party or the mediator, and reveal nothing said or done in the mediation discussion.

[11/12] South Bay Boston Mgmt., Inc. v. Unite Here, Local 26
District court's grant of defendant-union's motion to compel arbitration and denial of plaintiff's petition for declaratory judgment is affirmed where: 1) the Union neutrality agreement at issue was not void ab initio; and 2) the arbitration clause of the agreement remained in effect.

[11/10] Safety Nat'l. Cas. Corp. v. Certain Underwriters at Lloyd's
In an appeal from the denial of a motion to compel arbitration of a contractual dispute among insurers, the order is reversed where the McCarran?Ferguson Act does not authorize state law to reverse-preempt the Convention on the Recognition and Enforcement of Foreign Arbitral Awards or its implementing legislation.

[11/10] Conrad v. Phone Directories Co.
In an interlocutory appeal of the district court's denial of defendants' motion to dismiss premised on the existence of an arbitration agreement, the appeal is dismissed for lack of jurisdiction where, to properly invoke appellate jurisdiction under the Federal Arbitration Act (FAA), the movant must either explicitly move to stay litigation and/or compel arbitration pursuant to the FAA, or it must be unmistakably clear from the four corners of the motion that the movant seeks relief provided for in the FAA.

[11/04] DMA Int'l., Inc. v. Qwest Comms. Int'l., Inc.
In an appeal from the district court's denial of petitioner's motion to vacate an arbitral award, the order is affirmed where the arbitrator's factual findings regarding the meaning of the contract at issue could not be overturned simply because the evidence was conflicting. In addition, attorney's fees are awarded to respondent because petitioner's appeal vexatiously multiplied the proceedings.

[11/04] Memphis Biofuels, LLC. v. Chicksaw Nation Indus., Inc.
In plaintiff's case against the defendants for repudiating an agreement whereby defendant was to deliver diesel fuel and soybean oil to plaintiff's refinery facility, dismissal of the suit for lack of subject matter jurisdiction is affirmed as the defendant, a federally chartered tribal corporation, enjoys tribal-sovereign immunity.

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International Law

[11/20] New York Guangdong Fin. Inc. v. Comm'r. of Int'l. Rev.
In an appeal from a tax court's judgment sustaining in part the Commissioner of Internal Revenue's notice of deficiency for withholding tax deficiencies and additions to tax, the order is affirmed where: 1) the Commissioner did not act arbitrarily when it relied on information provided to it by petitioner under penalties of perjury; 2) the Agreement for the Avoidance of Double Taxation and the Prevention of Tax Evasion With Respect to Taxes on Income did not exempt interest paid to a Chinese corporation from withholding tax; and 3) the record contained no evidence that petitioner relied on the advice of a competent professional in deciding not to file the Forms 1042 for the years in question.

[11/17] Epic Communications, Inc. v. Richwave Tech., Inc.
In an action by a Taiwanese corporation and its California subsidiary seeking damages for misappropriation of intellectual property involving a Design Services Agreement of a silicon-germanium power amplifier for use in wireless networking devices, trial court's order quashing service of summons is reversed where: 1) a refusal by California courts to exercise jurisdiction cannot be justified by the mere fact that a claim arising from California contacts is prosecuted by a nonresident; and 2) subjecting the defendant to local jurisdiction comports with fair play and substantial justice as, here the two Taiwanese defendants engaged in conduct in California, and caused effects in California, that made it readily foreseeable that they would be haled into court here in the event of a dispute of the present type.

[11/13] Hawknet, Ltd. v. Overseas Shipping Agencies
In an appeal from the district court's order vacating the attachment of an electronic funds transfer (EFT), the order is affirmed and the case is remanded for an order to show cause why the action should not be dismissed for lack of personal jurisdiction where: 1) the rule announced recently in Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., __ F.3d __, No.08-3477, 2009 WL 3319675 (2d Cir. Oct. 16, 2009), applies retroactively; and 2) a party's failure to assert an argument prior to the announcement of a decision which might support it does not constitute waiver.

[11/10] Safety Nat'l. Cas. Corp. v. Certain Underwriters at Lloyd's
In an appeal from the denial of a motion to compel arbitration of a contractual dispute among insurers, the order is reversed where the McCarran?Ferguson Act does not authorize state law to reverse-preempt the Convention on the Recognition and Enforcement of Foreign Arbitral Awards or its implementing legislation.

[11/03] Applied Med. Dist. Corp. v. Surgical Co. BV
In an appeal from the district court's denial of an injunction barring defendant from pursuing an action against plaintiff in Belgium, the order is reversed where: 1) the district court applied the wrong legal standard by requiring that the claims in the domestic and foreign action be identical, instead of engaging in the required functional inquiry concerning dispositiveness; and 2) the district court relied on the clearly erroneous factual determination that defendant's Belgian claims, other than goodwill indemnities, were available apart from termination.

[10/28] Sunstar, Inc. v. Alberto-Culver Co.
In a trademark infringement case involving interpretation of a trademark licensing agreement of defendant's "VO5" trademark and Japanese trademark law, district court's judgment in favor of the defendant, and orders enjoining plaintiff from using the variant mark and terminating the licensing agreement to return all the licensed trademarks to the defendant is vacated and remanded as under Japanese trademark law, the term senyoshiyoken, which the district judge refused to give the meaning of to the jury, means exclusive-use right where the license holder not only has an exclusive right to use the licensed trademarks within the geographical scope of the licensed trademarks but can sue infringers of the trademarks in its own name.

[10/16] Jamieson v. Comm'r of Internal Rev. Serv.
In an appeal from the Tax Court's determination that the taxpayers owed alternative minimum tax (AMT), the order is affirmed where the Technical and Miscellaneous Revenue Act of 1988 made it crystal clear that Congress intended the 90% cap on the AMT foreign tax credit to supercede any preexisting treaty obligation with which it conflicted.

[10/16] Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd.
In defendant's appeal from the district court's order vacating portions of an order of maritime attachment and garnishment, the order is affirmed in part where electronic fund transfers (EFTs) being processed by an intermediary bank are not property subject to attachment under Rule B of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions. However, the court of appeals remands the cause for further proceedings with respect to the remaining portions of the attachment order affecting EFTs of which defendant was the originator.

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International Trade

[11/20] New York Guangdong Fin. Inc. v. Comm'r. of Int'l. Rev.
In an appeal from a tax court's judgment sustaining in part the Commissioner of Internal Revenue's notice of deficiency for withholding tax deficiencies and additions to tax, the order is affirmed where: 1) the Commissioner did not act arbitrarily when it relied on information provided to it by petitioner under penalties of perjury; 2) the Agreement for the Avoidance of Double Taxation and the Prevention of Tax Evasion With Respect to Taxes on Income did not exempt interest paid to a Chinese corporation from withholding tax; and 3) the record contained no evidence that petitioner relied on the advice of a competent professional in deciding not to file the Forms 1042 for the years in question.

[11/17] Epic Communications, Inc. v. Richwave Tech., Inc.
In an action by a Taiwanese corporation and its California subsidiary seeking damages for misappropriation of intellectual property involving a Design Services Agreement of a silicon-germanium power amplifier for use in wireless networking devices, trial court's order quashing service of summons is reversed where: 1) a refusal by California courts to exercise jurisdiction cannot be justified by the mere fact that a claim arising from California contacts is prosecuted by a nonresident; and 2) subjecting the defendant to local jurisdiction comports with fair play and substantial justice as, here the two Taiwanese defendants engaged in conduct in California, and caused effects in California, that made it readily foreseeable that they would be haled into court here in the event of a dispute of the present type.

[11/13] Hawknet, Ltd. v. Overseas Shipping Agencies
In an appeal from the district court's order vacating the attachment of an electronic funds transfer (EFT), the order is affirmed and the case is remanded for an order to show cause why the action should not be dismissed for lack of personal jurisdiction where: 1) the rule announced recently in Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., __ F.3d __, No.08-3477, 2009 WL 3319675 (2d Cir. Oct. 16, 2009), applies retroactively; and 2) a party's failure to assert an argument prior to the announcement of a decision which might support it does not constitute waiver.

[11/03] Applied Med. Dist. Corp. v. Surgical Co. BV
In an appeal from the district court's denial of an injunction barring defendant from pursuing an action against plaintiff in Belgium, the order is reversed where: 1) the district court applied the wrong legal standard by requiring that the claims in the domestic and foreign action be identical, instead of engaging in the required functional inquiry concerning dispositiveness; and 2) the district court relied on the clearly erroneous factual determination that defendant's Belgian claims, other than goodwill indemnities, were available apart from termination.

[10/23] Aguas Lenders Recovery Grp. LLC v. Suez, S.A.
In an action to recover on a defaulted loan, dismissal of the action on forum non conveniens grounds is reversed where a non-signatory to an agreement may be bound by a forum selection clause and forum non conveniens waiver contained in contracts entered into by an entity alleged to be a predecessor in interest.

[10/16] Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd.
In defendant's appeal from the district court's order vacating portions of an order of maritime attachment and garnishment, the order is affirmed in part where electronic fund transfers (EFTs) being processed by an intermediary bank are not property subject to attachment under Rule B of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions. However, the court of appeals remands the cause for further proceedings with respect to the remaining portions of the attachment order affecting EFTs of which defendant was the originator.

[09/28] Qingdao Taifa Group Co., Ltd. v. US
United States Court of International Trade's order enjoining liquidation of entries for importers of hand trucks manufactured and exported by plaintiff-Chinese company during the 2005 to 2006 period is affirmed as the district court did not abuse its discretion in halting the liquidation.

[09/25] Faus Group Inc., v. US
Judgment of the United States Court of International Trade sustaining the United States Customs Service's classification of laminated flooring panels imported by plaintiff as fiberboard under heading 4411 of the Harmonized Tariff Schedules of the United States (HTSUS), subjecting them to a duty rate of 6% ad valorem, is reversed as the flooring panels should be classified within subheading 4418.90.40, the residual category for builders' joinery where it is subject to a duty of 3.2% ad valorem.

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Trade Secrets

[11/05] Perlan Therapeutics, Inc. v. Sup. Ct.
In plaintiff's case against the defendant for misappropriation of its trade secrets of an anti-viral protein based therapeutic used as a daily nasal spray for the prevention and treatment of the common cold, plaintiff's petition for a writ of mandate to compel the trial court to accept plaintiff's trade secret identification statement as sufficient and to allow it to commence discovery is denied where: 1) the trial court applied the correct legal standard to plaintiff's trade secret identification statement; and 2) there was a basis in the record to support the court's conclusion that the statement was not reasonably particular under the circumstances presented.

[10/27] Awuah v. Coverall N. Am, Inc.
In a class action lawsuit against defendants brought by their franchisees, defendants' interlocutory appeal seeking review of a discovery-related order by the district court is dismissed for want of a final judgment.

[10/05] Premium Mortgage Corp. v. Equifax, Inc.
In an action for misappropriation of trade secrets against credit reporting agencies engaged in the practice of permitting lenders competing with plaintiff to purchase pre-screened consumer reports containing "trigger leads" compiled by plaintiff, dismissal of the action is affirmed where: 1) the Fair Credit Reporting Act preempted state law claims based on pre-screened reports; and 2) plaintiff failed to identify the legal basis for defendants' alleged duty and obligation to maintain the confidentiality of trigger leads.

[09/21] Southwest Stainless, LP v. Sappington
In an action for breach of a noncompetition agreement restricting defendants' ability to work with competitors, judgment for plaintiff is affirmed in part where the district court properly distinguished in its findings of fact between plaintiff's general lost profits and profits lost on specific orders. However, judgment for plaintiff is reversed in part where certain information used by defendants did not qualify as a trade secret because plaintiff disclosed this information to its customers without reservation.

[08/20] Retirement Group v. Galante
In an action for misappropriation of trade secrets, a preliminary injunction in favor of plaintiff is reversed where the injunction could not rationally be upheld as limited in scope to the only legitimate protection (i.e., enjoining the misappropriation of plaintiff's trade secrets) for which injunctive relief may be issued.

[08/11] Hertz v. Luzenac Group
In a trade secret misappropriation action, partial judgment for plaintiffs and defendants is affirmed in part where plaintiff failed to present adequate claims of tortious interference with contract and prospective business advantage. The ruling is reversed in part, however, where the question of whether defendant's manufacturing process was a trade secret was a question of fact that could not be resolved on the current record.

[07/31] Jasco Tools, Inc. v. Dana Corp.
District court order affirming bankruptcy court's grant of summary judgment for defendant is vacated and remanded where: 1) plaintiff's objections to the procedures leading up to the grant of summary judgment are without merit; 2) the court erred in granting summary judgment as plaintiff should have been allowed to complete discovery of defendant; and 3) there were genuine issues of material fact regarding plaintiff's claim of an alleged conspiracy to misappropriate its trade secrets.

[07/30] Proudfoot Consulting Co. v. Gordon
In an action for breach of a covenant not to compete, an injunction against defendant is affirmed where defendant failed to show that the district court clearly erred in finding that defendant's confidential information constituted a legitimate business interest that justified the non-compete covenant. However, the damages award in favor of plaintiff is reversed where plaintiff failed to establish that defendant's solicitation of a client for plaintiff's competitor resulted in plaintiff's loss of the project that was the basis of the damages award.

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Trademark

[11/16] Lahoti v. VeriCheck, Inc.
In an action seeking a declaratory judgment that plaintiff's acquisition of the vericheck.com domain name did not constitute trademark infringement or cybersquatting, judgment against plaintiff is vacated and remanded where the district court's factual decision that the "VeriCheck" mark was a distinctive, legally protectable mark under the ACPA and federal trademark law was based in part on reasoning contrary to federal trademark law and based in part on reasoning that could support the district court's conclusion.

[11/13] Kim Seng Co. v. Great Am. Ins. Co. of New York
In a dispute over whether plaintiff's insurer had a duty to defend and indemnify plaintiff in a trademark infringement action under an "advertising injury" policy, summary judgment for insurance company is affirmed as the prior publication exclusion in the policy bars coverage for trademark infringement in this case.

[11/06] In re 1800Mattress.com IP., LLC
Final decision of the United States Patent and Trademark Office Trademark Trial and Appeal Board (Board) refusing registration of the mark "Mattress.com" is affirmed as the Board's decision finding the mark generic in relation to the recited services was supported by substantial evidence.

[11/05] Cold War Museum, Inc. v. Cold War Air Museum, Inc.
In trademark cancellation proceedings, the Trademark Trial and Appeal Board's (Board) decision canceling registration of appellant-Cold War Museum's service mark THE COLD WAR MUSEUM, finding that it had not proven acquired distinctiveness of the mark, is reversed where: 1) the Board erred in deciding that it could not consider evidence of acquired distinctiveness because appellant did not resubmit the evidence in the cancellation, as the unambiguous language of 37 C.F.R. section 2.122(b) provides that the entire file of the registration at issue is automatically part of the record, without any action necessary by the parties; and 2) the Board erred as a matter of law in concluding that appellee had established a prima facie case that the mark had not acquired distinctiveness as appellee failed to present any evidence whatsoever relating to the distinctiveness of the mark and failed even to argue that the mark had not acquired distinctiveness in its petition for cancellation.

[10/28] Sunstar, Inc. v. Alberto-Culver Co.
In a trademark infringement case involving interpretation of a trademark licensing agreement of defendant's "VO5" trademark and Japanese trademark law, district court's judgment in favor of the defendant, and orders enjoining plaintiff from using the variant mark and terminating the licensing agreement to return all the licensed trademarks to the defendant is vacated and remanded as under Japanese trademark law, the term senyoshiyoken, which the district judge refused to give the meaning of to the jury, means exclusive-use right where the license holder not only has an exclusive right to use the licensed trademarks within the geographical scope of the licensed trademarks but can sue infringers of the trademarks in its own name.

[09/16] Art Attacks Ink, LLC v. MGA Ent'mt. Inc.
In a copyright, trademark, and trade dress infringement action, judgment as a matter of law for defendant on copyright and trade dress infringement claims is affirmed where: 1) defendant did not timely move for judgment as a matter of law, but the time limit under Fed. R. Civ. P. 50(b) is not jurisdictional; and 2) plaintiff failed to demonstrate that defendant had access to plaintiff's copyrighted works or that plaintiff's trade dress had acquired secondary meaning.

[09/16] Vita-Mix Corp. v. Basic Holding, Inc.
In a patent and trademark infringement case involving a method of preventing formation of an air pocket around the blades of a consumer blender, summary judgment in favor of defendant is vacated and remanded in part, and affirmed in part where: 1) district court's judgment of no direct infringement is vacated and remanded with instruction to apply the correct claim construction; 2) findings of no invalidity for anticipation, obviousness, or lack of enablement is vacated and remanded with instructions to apply the correct claim construction; 3) district court's judgments of no inducement, no contributory infringement, and no trademark infringement is affirmed; and 4) district court's judgment of no inequitable conduct and no laches is affirmed.

[09/11] Am. Eagle Outfitters v. Lyle & Scott Ltd.
In a contract case arising from parties' efforts to resolve a dispute over the use of similar trademarks in their respective clothing lines, a magistrate judge's rulings are affirmed in part where both parties intended an informal document to be a binding contract and no reasonable jury could decide otherwise, and the terms of such document were sufficiently definite to warrant enforcement. However, the case is remanded as the terms agreed to by the parties with respect to certain clauses were not sufficiently unambiguous to permit judicial interpretation of the contract.

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Intellectual Property

[11/19] Iovate Health Sci., Inc. v. Bio-Engineered Supplements & Nutrition, Inc.
In a patent case involving nutritional supplements containing a ketoacid and an amino acid to enhance muscle performance or recovery from fatigue, summary judgment holding certain of plaintiff's patent claims invalid as anticipated is affirmed as the Professional Protein advertisement constitutes an anticipatory printed publication under section 102(b) that invalidates the asserted claims of the patent as: 1) the ad discloses each and every claim limitation as a matter of law; and 2) a person of skill in the art, combining his or her knowledge of the art with the advertisement's suggestions, would have considered the advertisements to be enabled.

[11/17] Epic Communications, Inc. v. Richwave Tech., Inc.
In an action by a Taiwanese corporation and its California subsidiary seeking damages for misappropriation of intellectual property involving a Design Services Agreement of a silicon-germanium power amplifier for use in wireless networking devices, trial court's order quashing service of summons is reversed where: 1) a refusal by California courts to exercise jurisdiction cannot be justified by the mere fact that a claim arising from California contacts is prosecuted by a nonresident; and 2) subjecting the defendant to local jurisdiction comports with fair play and substantial justice as, here the two Taiwanese defendants engaged in conduct in California, and caused effects in California, that made it readily foreseeable that they would be haled into court here in the event of a dispute of the present type.

[11/16] Lahoti v. VeriCheck, Inc.
In an action seeking a declaratory judgment that plaintiff's acquisition of the vericheck.com domain name did not constitute trademark infringement or cybersquatting, judgment against plaintiff is vacated and remanded where the district court's factual decision that the "VeriCheck" mark was a distinctive, legally protectable mark under the ACPA and federal trademark law was based in part on reasoning contrary to federal trademark law and based in part on reasoning that could support the district court's conclusion.

[11/13] Kim Seng Co. v. Great Am. Ins. Co. of New York
In a dispute over whether plaintiff's insurer had a duty to defend and indemnify plaintiff in a trademark infringement action under an "advertising injury" policy, summary judgment for insurance company is affirmed as the prior publication exclusion in the policy bars coverage for trademark infringement in this case.

[11/06] In re 1800Mattress.com IP., LLC
Final decision of the United States Patent and Trademark Office Trademark Trial and Appeal Board (Board) refusing registration of the mark "Mattress.com" is affirmed as the Board's decision finding the mark generic in relation to the recited services was supported by substantial evidence.

[11/05] Perlan Therapeutics, Inc. v. Sup. Ct.
In plaintiff's case against the defendant for misappropriation of its trade secrets of an anti-viral protein based therapeutic used as a daily nasal spray for the prevention and treatment of the common cold, plaintiff's petition for a writ of mandate to compel the trial court to accept plaintiff's trade secret identification statement as sufficient and to allow it to commence discovery is denied where: 1) the trial court applied the correct legal standard to plaintiff's trade secret identification statement; and 2) there was a basis in the record to support the court's conclusion that the statement was not reasonably particular under the circumstances presented.

[11/05] Cold War Museum, Inc. v. Cold War Air Museum, Inc.
In trademark cancellation proceedings, the Trademark Trial and Appeal Board's (Board) decision canceling registration of appellant-Cold War Museum's service mark THE COLD WAR MUSEUM, finding that it had not proven acquired distinctiveness of the mark, is reversed where: 1) the Board erred in deciding that it could not consider evidence of acquired distinctiveness because appellant did not resubmit the evidence in the cancellation, as the unambiguous language of 37 C.F.R. section 2.122(b) provides that the entire file of the registration at issue is automatically part of the record, without any action necessary by the parties; and 2) the Board erred as a matter of law in concluding that appellee had established a prima facie case that the mark had not acquired distinctiveness as appellee failed to present any evidence whatsoever relating to the distinctiveness of the mark and failed even to argue that the mark had not acquired distinctiveness in its petition for cancellation.

[11/05] Schrock v. Learning Curve Int'l, Inc.
In plaintiff's copyright infringement action against defendant who had hired him to take photos of the "Thomas & Friends" toy train characters for use in promotions, district court's dismissal of his complaint is reversed where: 1) the photos qualify for the limited derivative-work copyright provided by section 103(b) as plaintiff's artistic and technical choices combine to create a two-dimensional image that is subtly but nonetheless sufficiently his own; and 2) district court erred in concluding that plaintiff needed defendant's permission to copyright the photos, as there is nothing in the Copyright Act requiring the author of a derivative work to obtain permission to copyright his work from the owner of the copyright in the underlying work.

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