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Weekly Issues in the News

By Geisa Balla

Kevin Costner and Stephen Baldwin

Kevin Costner won his jury trial against Stephen Baldwin on Thursday, June 14th. Baldwin and his business partner Spyridon Contougouris filed a lawsuit in U.S. District Court for the East District of Louisiana, alleging that Costner cheated him out of a multimillion-dollar deal to sell oil cleanup devices to BP after the 2010 Gulf of Mexico oil spill. Baldwin alleged that Costner hid the details of a deal with BP before Baldwin and his partner sold their stake in the company. Costner's attorneys argued that Baldwin and Contogouris were not entitled to any payments because they sold their shares in the company before the deal with BP was sealed. The plaintiffs' attorney repeatedly accused Costner of lying about the nature of his communications with BP executives before they sealed the deal. The 8-person jury deliberated for less than two hours and awarded no damages. Costner told reporters after the trial: "My name means more to me than money. . . That's why we wanted to get to the truth of this." Counsel for Baldwin stated "The bigger celebrity won."

http://www.reuters.com/article/2012/06/15/usa-lawsuit-costner-baldwin-idUSL1E8HELQR20120615

The University of Alabama v. New Life Art Inc.

The U.S. Court of Appeals for the Eleventh Circuit ruled on June 11th that a sports artist did not violate the University of Alabama's trademark rights by selling a painting of the school's football games. Artist Daniel Moore started painting famous sports scenes in 1979, and in 2002, his alma matter said that he needed permission to depict the team's uniforms. The school then filed suit in 2005. In 2009 an Alabama district court reached a split conclusion, finding that the artist's paintings and prints were protected by free speech but that his unlicensed calendars, coffee mugs and other items were not. Both parties appealed. The Eleventh Circuit affirmed the lower court ruling regarding Moore's paintings and prints, and added his calendars to the category of protected artistic expression. Judge Lanier Anderson wrote the unanimous decision, stating: "Moore's paintings, prints and calendars very clearly are embodiments of artistic expression, and are entitled to full First Amendment protection."

http://newsandinsight.thomsonreuters.com/Legal/News/2012/06_-_June/Artist_scores_partial_win_in_appeal_over_football_images/

DISH Network

The Southern District of California found on summary judgment that Sonicview, makers of satellite receivers, violated the Digital Millennium Copyright Act (DMCA) and the Federal Communications Act. DISH Network and two of its affiliates filed suit against Sonicivew, alleging that Sonicview's receivers allowed pirates to obtain DISH Network signals without authorization by circumventing DISH Network's encryption system. The DMCA prohibits the manufacture of any technology which "is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected [by copyright]." The court found that Sonicview violated the DMCA, as its receivers could serve no other purpose but to pirate satellite images. The court also found Sonicview liable under the Federal Communications Act, which prohibits a person from manufacturing or distributing any device or equipment knowing that the device is primarily used in the unauthorized decryption of satellite signals. The court awarded the plaintiffs over $64 million in damages and issued a permanent injunction.

http://www.lexology.com/library/detail.aspx?g=3559b835-2aa0-4650-b12b-5b1b6064451c

Brantley et al v. NBC Universal Inc.

The Ninth Circuit has affirmed for a second time the dismissal of a putative class action of cable and satellite subscribers alleging violations of Section 1 of the Sherman Act. The plaintiffs in the class action alleged that cable and satellite programmers and distributors had illegally tied the purchase of popular channels to less desirable channels, requiring subscribers to purchase expensive multi-channel packages as opposed to choosing channels a la carte. The plaintiffs alleged that the tying of the "must have" and low demand channels reduced consumers' choices and drove prices higher. However, the plaintiffs did not allege that the tying of these channels foreclosed competition with independent programmers. The Ninth Circuit affirmed the district court's dismissal of the Third Amended Complaint due to the plaintiffs' failure to properly allege injury to competition. The court explained that market conditions might be such that a specific tying arrangement does not have anticompetitive effects, or may be a response to a competitive market rather than an attempt to circumvent competition. Therefore, the court concluded that proper allegations setting forth injury to competition were essential.

http://www.natlawreview.com/article/ninth-circuit-again-declares-requiring-consumers-to-purchase-undesired-television-ch

Ralph Lauren and Rolex

The USPTO's Trial and Appeal Board issued an opinion last week, finding that Ralph Lauren's requested RLX marks for jewelry and watches would not cause confusion with Rolex's marks. Rolex first opposed the marks in 2006, arguing that RLX was too similar to the marks previously registered by Rolex. The USPTO held that the test is not whether the marks can be distinguishable in a side-by-side comparison, but rather whether they are sufficiently similar, in their entities, to confuse consumers about the source of the products. Rolex argued that consumers might associate Ralph Lauren and Rolex, mistakenly assuming that the brands had collaborated. To support this claim, Rolex pointed out that the two brands often co-sponsor sporting events, where, for example at Wimbeldon, courtside clocks are Rolex and the ball boys are outfitted by Ralph Lauren. Ralph Lauren argued that the inclusion of the Ralph Lauren name alleviated any likelihood of confusion. The USPTO judges agreed that in the context of jewerly and watch marks, the combination of Ralph Lauren's initials with an X indicates an expansion of Lauren's product line, not an encroachment on Rolex's mark. Rolex can now appeal the decision to the U.S. Court of Appeals for the Federal Circuit.

http://newsandinsight.thomsonreuters.com/Legal/News/2012/06_-_June/Watch_this__PTO_says_Ralph_Lauren_RLX_mark_not_too_similar_to_Rolex/

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