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Weekly Issues in the News

By Geisa Balla

E-Book Settlement

On September 6th, Judge Denise L. Cote of the Southern District of New York approved a settlement between the Justice Department (DOJ)and three major publishers in a civil antitrust case. The case stemmed from a policy that the publishers adopted in 2010 that effectively coordinated the price of many newly released e-books to $12.99 to $14.99. After striking a deal with Apple, the publishers renegotiated contracts with Amazon and other retailers, allowing the publishers, and not the retailers, to set prices on e-books. Publishers the Hachette Book Group, Simon & Schuster and HarperCollins denied wrongdoing, but agreed to settle with the DOJ in April. The Penguin Group USA, Macmillan and Apple declined to settle. They face trial next summer.

In her opinion, Judge Cote said that DOJ had claimed a "straightforward, horizontal price-fixing conspiracy." She rejected arguments against the settlement, saying they were "insufficient" to deny its approval and dismissed requests to hold an evidentiary hearing as an unnecessary delay. The settlement calls for the three settling publishers to end their contracts with Apple within one week. The publishers must also terminate contracts with e-book retailers that contain restrictions on the retailer's ability to set the price of an e-book. For the next two years, the settling publishers may not agree to contracts with e-book retailers that restrict the retailer's "discretion over e-book pricing." For five years, the publishers are not allowed to make contracts with retailers that include a most-favored nation clause. According to the opinion, "The time limits on these provisions suggest that they will not unduly dictate the ultimate contours of competition within the e-books industry as it develops over time."


Christian Louboutin

On September 5th, the Second U.S. Circuit Court of Appeals reversed a lower court's decision that a single color could not be trademarked in the fashion industry. French footwear designer Christian Louboutin sued rival Yves Saint Laurent (YSL) in April 2011 over Louboutin's signature use of lacquered red on shoe soles. In August 2011 Judge Victor Marrero of the Southern District of New York denied Louboutin's request for a preliminary injunction, seeking to prevent YSL from selling pumps with red soles. However, the Second Circuit's ruling held that Louboutin's long-standing use of the red sole was "a distinctive symbol that qualifies for trademark protection." The Court limited Louboutin's trademark to shoes where the sole stands out, in contrast to the rest of the pump. The finding would allow YSL to produce a monochrome red shoe with a red sole. David Bernstein, an attorney for YSL, called the opinion a victory for the label. "The Court has conclusively ruled that YSL's monochromatic red shoes do not infringe any trademark rights of Louboutin, which guarantees that YSL can continue to make monochromatic shoes in a wide variety of colors, including red." Louboutin also called the ruling a win, stating that thanks to this ruling, it "will be able to protect a life's work as the same is embodied in the red sole found on his women's luxury shoes." The decision was based on Qualitex Co. v. Jacobson Products CoQualitex left open the possibility of defending a single color trademark on the grounds that its use is uniquely associated with a brand.


Michael Jackson

A Canadian memorabilia dealer who worked with Michael Jackson's mother in a tribute book reached a $2.5 million copyright settlement on Tuesday with Jackson's estate. The executors of Jackson's estate filed a lawsuit against Howard Mann in January 2011. Mann used michaeljacksonsecretvault.com, MJgives.com and similar domain names to sell Jackson's music and memorabilia. Mann worked with Katherine Jackson on several projects, including a 2010 Never Can Say Goodbye coffee table book featuring recollections of her son, and a DVD and calendar. Mann claimed that he obtained the rights at a bankruptcy sale involving members of Jackson's family several years ago. However, the estate holds the copyright to Jackson's image and music for the benefit of Jackson's mother and his three children.

Mann was found liable in August 2012 for infringing on Jackson's intellectual property, and trial was due to start soon to determine damages. Howard Weitzman and Zia Modabber, the attorney's for Jackson's estate, said in a statement that the "settlement seems appropriate for all concerned".


Ben & Jerry's

Ice cream maker Ben & Jerry's has filed a trademark infringement lawsuit in the Southern District of New York against the maker of "Ben & Cherry's" X-rated DVD, claiming that the "hardcore pornographic" films have smeared its reputation. The suit arises from the distribution and sale of a series of DVDs containing ""exploitative, hardcore pornographic films" featuring titles and themes based on "well-known and iconic" Ben & Jerry's ice cream flavors as well as packaging that contains key company features such as a grazing cow, green grass and large white puffy clouds. The lawsuit by the Vermont-based company said the films would likely cause "confusion, mistake or deception" regarding the company's trademarks. It identified some of the X-rated names similar to its own as "Boston Cream Thigh," ''New York Fat & Chunky" and "Peanut Butter D-Cup." Ben & Jerry's has ice cream flavors titled: "Boston Cream Pie," ''New York Super Fudge Chunk" and "Peanut Butter Cup."


James Franco

Actor James Franco is being sued by his former New York University professor for defamation. Franco received a D in 2010 when he was enrolled in NYU's Tisch film school. When asked about the grade, Franco said he could not explain it, that he did all the work and did well in his other film classes. He said that his professor Jose Angel Santana "probably felt uncomfortable with a working well known actor in his class." Now Professor Santana is suing Franco for defamation. The lawsuit was filed on September 4, 2012 in New York Supreme Court, and seeks unspecified damages over Franco's "disparaging and inaccurate public statements." Santana claims Franco received a D in the class because he missed 12 out of the 14 classes. Franco admitted that he missed the classes because he was filming "127 Hours", but also said, "I didn't feel like I needed to waste my time with a bad teacher." Santana has already sued NYU, claiming he was fired in 2011 for giving Franco the D. He said the school "bent over backwards to create a Franco-friendly environment" and did "everything in its power to curry favor with James Franco."


Geisa Balla is an attorney practicing in New York, NY. She can be reached at geisa.balla@gmail.com.

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This page contains a single entry from the blog posted on September 7, 2012 5:53 PM.

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