Geisa Balla Archives

February 2, 2012

Weekly Issue in the News

By Geisa Balla

A former Harper's Bazaar intern filed a putative class action lawsuit in the Southern District of New York on February 1, 2012, alleging that parent company the Hearst Corporation violated federal and state wage and hour laws by not paying her while she worked there full time. The lawsuit seeks to join hundreds of unpaid interns at Hearst Corporation in the class. According to the lawsuit, the plaintiff, an Ohio State University graduate, was an intern at Harper's Bazaar from August 2011 to December 2011, where she worked between 40 and 55 hours a week, and was not paid for her work. The complaint states: "Employers' failure to compensate interns for their work, and the prevalence of the practice nationwide, curtails opportunities for employment, fosters class divisions between those who can afford to work for no wage and those who cannot, and indirectly contributes to rising unemployment."

Britain's Advertising Standards Authority ("ASA") ruled on February 1, 2012, that a magazine advertisement for L'Oréal's Revitalift Repair 10, featuring actress Rachel Weisz, "misleadingly exaggerates the performance of the product," and must not appear again in its current form. (Women's Wear Daily) reported: "The ASA said that the ad was misleading in relation to the claim that the product made skin look smoother and the complexion look more even, as the committee believed Weisz's image had "been altered in a way that substantially changed her complexion to make it appear smoother and more even." The ASA also told L'Oréal not to continue to use postproduction techniques that could misrepresent a product's claims."

In its response, L'Oréal attributed the quality of the image not necessarily to post-production, but to the lighting and techniques of the photography.

February 16, 2012

Weekly Issues in the News

By Geisa Balla

Singers Beyoncé and Jay Z filed an application with the United States Patent and Trademark Office on January 26, 2012, to trademark their baby's name "Blue Ivy Carter" for use in a vast array of products such as accessories, clothes, baby products, and entertainment services. (Serial number 85526099). The application was filed on behalf of Beyoncé's company, BGK Trademark Holdings, LLC. Prior to this filing, two unrelated parties submitted trademark applications for "Blue Ivy Carter NYC" and "Blue Ivy Carter Glory IV", after baby Blue Ivy Carter was born. The UPSTO denied both applications, stating that the name belong to a "very famous infant" and "consumers would falsely assume that the products were approved by the celebrity parents."

Singer M.I.A. raised quite a few eyebrows during Superbowl XLVI on February 5th, when she showed the camera her middle finger during her half-time performance. Unfortunately for M.I.A., she may have to pay dearly for the lewd gesture. If the Federal Communications Commission (FCC) decides to issue a fine, it appears that NBC and the NFL are off the hook, but M.I.A. will have to pay up. According to reports, M.I.A. signed a contract with the NFL agreeing to indemnify the latter for any potential FCC fines. However, at this time it is unclear whether the FCC will issue a fine for the gesture, as it fined CBS for Janet Jackson's wardrobe malfunction in 2004. NBC claims to have received very few complaints.

The defense attorney for William Balfour, the man accused of killing Jennifer Hudson's family members in 2008, is now requesting to examine Jennifer Hudson herself about the events surrounding this crime. Hudson was not expected to be named a witness in this case, but may now have to testify about texts she exchanged with her mother on the night of the murder.

February 17, 2012

Weekly Issues in the News

By Geisa Balla

Apple TM Issue in China

A trademark dispute between Apple and Proview Technology has brought sales of iPads to a halt in China. Proview Technology trademarked the name IPAD in several countries in 2000, intending to use it for Internet-capable handheld device. Yet this project did not take off. In 2009, Apple established a company called IP Applications in order to acquire the iPad trademarks and preserve confidentiality on its intent to launch its tablet. IP Applications bought the IPAD trademark from Proview's Taiwan company in December 2009 for $55,000. Apple believed that it had acquired all the rights to the IPAD trademark, but later found out that the rights for mainland China were registered under Proview's Shenzhen company. According to court documents, Proview refused to rectify the mistake and suggested that Apple should pay $10 million to purchase the China trademarks. Proview has filed for bankruptcy, but still holds rights to the IPAD trademark. In its lawsuit, Apple claimed that Proview refused to honor its contractual obligation. Apple was granted an injunction against Proview, preventing Proview from selling off its trademark rights. Yet in December 2011, a court in Shenzhen dismissed Apple's contention that it owned the iPad name in China. Apple intends to appeal the ruling.

If Apple does not prevail in this lawsuit, it would have to pay penalties, and possibly its tablet would be banned under the iPad name. Tens of millions of iPads have been manufactured in various plants in China since it was first launched in 2010. Proview now plans to take legal action against Apple for using a "fake company."

Sex and the City Lawsuit

Sex and the City writer and creator Candace Bushnell is being sued by her former friend and manager Clifford Streit, the inspiration for Sex and the City character Stanford Blatch. Streit, who was Bushnell's manager until 1999, first filed a federal lawsuit against Bushnell in 2005, claiming that Bushnell owed him 10% of her earnings from the show. The parties settled the lawsuit in 2006 by agreeing to give him 7.5% of her earnings. Now Streit claims that Bushnell last paid him in 2009, and owes him 7.5% of her earnings from the Sex and the City 2 movie, as well as residual earnings from the first Sex and the City movie and the "Sex and the City" show.


The Kodak Theater in Hollywood, where the Academy Awards have been held for the past 10 years, will soon have to change its name. Eastman Kodak Co. filed for Chapter 11 Bankruptcy protection in January 2012. In its proceeding, Kodak sought to cancel its 20-year agreement with landlord CIM/H&H Media to sponsor the theater. CIM/H&H Media moved to compel Kodak to continue performing under this agreement, but the court ruled in Kodak's favor. Kodak reportedly paid $3.6 million a year to CIM/H&H Media for the rights to the theater.


On February 14, 2012, Facebook Inc. was awarded $75,776 in legal fees from Paul Ceglia. Ceglia first filed a lawsuit against Zuckerberg in July 2010, alleging that pursuant to a 2003 agreement with Zuckerberg, he was entitled to half of Zuckerberg's stake in Facebook. U.S. Magistrate Judge Leslie G. Foschio ordered Ceglia to reimburse Facebook for legal fees it incurred while trying to get Ceglia to comply with discovery in the lawsuit. Ceglia is now claiming that he should not have to pay the "stratospheric" legal fees charged by Facebook's attorneys.,0,6212098.story

Whitney Houston

Grammy-winning artist Whitney Houston passed away on February 11, 2012, in her hotel room at the Beverly Hilton, where she was found partially submerged in a bathtub. Investigators did not find any illegal substances in Houston's hotel room, but found different prescriptions bottles, including some unidentified bottles. The Los Angeles County Coroner has issued subpoenas for Houston's medical records, and is investigating how Houston obtained these prescriptions. Hours after Houston was found dead, her 18-year-old daughter Bobbie Kristina Brown was rushed to the hospital after a "complete meltdown."

Despite Houston's death, her mentor Clive Davis went ahead with his annual pre-Grammy party that very same night, held in the same hotel. The February 12, 2012, Grammy awards honored Houston with an opening prayer and a performance by Jennifer Hudson. Whitney Houston's funeral service will be held on Saturday, February 18, 2012, at New Hope Baptist Church in Newark, and will be streamed live online.

February 24, 2012

Weekly Issues in the News

By Geisa Balla

NFL and Concussions

The family of former Chicago Bears player Dave Duerson filed a wrongful death suit against the NFL on Thursday, February 23, 2011. The lawsuit alleges that the NFL negligently caused the brain damage that led Duerson to commit suicide at age 50 by not warning him of the negative effects of concussions. Duerson took his own life on February 17, 2011. The lawsuit claims that the NFL knew of the effects of concussions, but concealed such information from Duerson. 657 retired NFL players have filed lawsuits against the NFL for concussion-related issues. A Philadelphia federal judge has consolidated the 657 complaints into 18 lawsuits. Duerson's case is different from the other lawsuits because his brain was the only one that was studied and found to have advanced brain damage. "We hope that through our case we can raise awareness and further effect change with the other retired players so they can get the benefits and medical attention they need," said Duerson's son, Tregg Duerson. "We also hope the change trickles down to youth sports and concussion policies, as well as how trainers treat these injuries."


The producers of "Spider-Man: Turn Off The Dark" and the trade association representing the show's former director Julie Taymor have settled the legal dispute between them. Taymor worked on the production of "Spider-Man" until she was fired in March 2011. Almost immediately after her termination, Taymor filed a copyright infringement against the "Spider-Man" producers, claiming that the producers made unauthorized and unlawful use of the material she developed for the show. In turn, the producers filed a countersuit against Taymor in January 2012, claiming that she endangered the show's chances of commercial success by "developing a dark, disjointed and hallucinogenic musical." Although this Broadway production cost more than $70 million to bring to stage and was received poorly by the critics, it has been a massive success with audiences. Under the settlement agreement, Taymor will receive full royalty fees for work as a director through the production's duration, as well as undisclosed fees for her work in developing the show.

Michael Jordan

Michael Jordan has filed a lawsuit against Chinese sportswear company Qiaodan Sports Co. in a China court for illegally using his name on marketing materials. "Qiaodan" is the Chinese translation for "Jordan." Qiaodan Sports sells athlete-branded basketball clothes and shoes in more than 5,700 retail locations across China. Qiaodan Sports claims to own the exclusive trademark to its name, and first registered to use this mark with the Trademark Office of China's State Administration for Industry and Commerce in 1997. However, under Chinese law, businesses cannot freely use the names of famous people, even if the famous people do not have trademarks on their names. In a video, Mr. Jordan claims that the lawsuit is not about money, but about the principle of protecting his identity and name. He also claims that any awards received from this lawsuit would be "invested in growing the sport of basketball in China.

Facebook as Service of Process

On February 21, 2012, a High Court judge in England approved the use of Facebook to serve legal claims. In a commercial dispute between two investment managers and a brokerage firm, counsel for one of the plaintiffs had been trying to track down one of the defendants to serve him with legal documents. A copy of the lawsuit was left at his last known address, but the attorneys did not have his new mailing address. The attorneys applied for permission to send him the claim via Facebook. Justice Nigel Teare permitted this method of service during a pretrial hearing, and gave the defendant extra time to respond "to allow for the possibility that he wasn't accessing his account regularly."


The EU's Anti-Counterfeiting Trade Agreement ("ACTA") will be referred to the European Court of Justice to determine if it is compatible with freedom of expression and freedom of the Internet. "ACTA is an international trade agreement that targets counterfeit goods, generic medicines and copyright infringement on the Internet. The European Commission and the European Council of member states have already approved ACTA, and the European Parliament is set to formally debate it in June. However, ACTA has generated protests and demonstrations in several European cities, including Paris and Berlin. Its critics say that ACTA violates the freedoms of speech and privacy. The main concerns are over ACTA's copyright enforcement and monitoring of Internet activity. The United States is one of the outside parties that has signed this treaty.

Online Shaming

Online shaming is the new tool in trademark disputes. User Phil Michaelson created an online cookbook,, which allows users to save the instructions for a certain recipe by clicking "K" for "Keep." AdKeeper, a New York based service that allows users to "keep" online adds, sent Mr. Michaelson a cease-and-desist letter, claiming that his use of "K" and "Keep" constituted trademark infringement. Mr. Michaelson, who could not afford a legal battle, posted the cease-and-desist letter on, a website created to help protect lawful online activity from legal threats. Mr. Michaelson was able to obtain free legal representation in this dispute after the letter was posted online.

TM Stats

The Wall Street Journal reports that trademark claims in U.S. district courts rose by 5% in the year ending March 2011. Fighting these battles in court is difficult for small start-up companies. Now a growing number of business owners are exposing trademark infringement threats on the Web, Facebook or Twitter.

March 4, 2012

Weekly Issues in the News

By Geisa Balla

White v. West Publishing
Edward L. White, an Oklahoma attorney, and Kenneth Elan, a New York attorney, filed a class action copyright infringement lawsuit against West Publishing Corp. and Lexis Nexis in the United States District Court, Southern District of New York on February 22, 2012. The complaint alleges that the Plaintiffs and all class members own the copyrights to their legal work product, such as pleadings and memoranda of law. It further asserts that the Defendants infringe on the Plaintiffs' copyrights by willfully copying and distributing such works in their databases. The Class is defined as "all attorneys and law firms . . . through which attorneys are authorized to practice law in the United States, and its states and territories that authored works (including but not limited to, legal briefs, motions memoranda and other legal documents) that are contained in Defendants' searchable databases."">

Google's Privacy Policy and the European Union
Google's new privacy policy potentially violates European Union law. The European Commission asked the French privacy agency, the National Commission for Computing and Civic Liberties (CNIL), to conduct an initial assessment of Google's privacy changes. After its investigation, CNIL wrote a letter to Larry Page, Google's co-founder, expressing its concerns that Google's privacy policy was unclear: "Our preliminary investigation shows that it is extremely difficult to know exactly which data is combined between which services for which purposes, even for trained privacy professionals." CNIL has stated that it would send Google a full questionnaire about its privacy policies by mid-March. CNIL has the power to fine companies up to $400,000 for privacy breaches in France.

Shepard Fairey
Shepard Fairey, the Los Angeles street artist who became widely known in the 2008 U.S. presidential election for the Barack Obama "Hope" poster, pleaded guilty in New York to one count of criminal contempt for destroying documents, manufacturing evidence and other misconduct in his case involving his "Hope" poster. The charges stem from his civil lawsuit with the Associated Press. The Associated Press had claimed that Fairey used a copyrighted photo to create his "Hope" poster, while Fairey claimed that his work was protected under the fair-use doctrine. Fairey admitted in 2009 that he destroyed documents and submitted false images during the lawsuit, which was settled in 2011. A sentencing date has been set for July 16, 2012. Fairey could face a maximum fine of $5,000, a maximum prison sentence of six months, and a maximum term of supervised release of one year.

Harper Collins v. Open Road
On February 16, 2012, Open Road Integrated Media (Open Road) answered the complaint filed by HarperCollins Publishers (HarperCollins) in the United States District Court, Southern District of New York. HarperCollins filed a copyright infringement lawsuit against Open Road on December 23, 2011, regarding Open Road's publication of an e-book edition of the book Julie of the Wolves, by author Jean Craighead George. The lawsuit alleged that HarperCollins had a contract with the author, signed in 1971, giving it the right to publish the book "in book form," including via "computer, computer-stored, mechanical or other electronic means now known or hereafter invented." Open Road released the following statement: "We are confident that we have secured all necessary eBook rights from the author Jean Craighead George and that we will prevail. HarperCollins' claim is nothing but an attempt to seize rights that were never granted to it and to change the existing law with respect to eBook rights." Author Jean Craighead George added: "I have asked to intervene in this action to protect my rights under copyright and under my original contract with HarperCollins. When I signed that contract in 1971, eBooks did not exist so I could not have granted those rights. I am with Open Road all the way."

Hathi Trust
The Authors Guild filed a Motion for Partial Judgment on the Pleadings on February 28, 2012, in its lawsuit against HathiTrust. HathiTrust is a digitization initiative of over 60 partners and university libraries, including content digitized via the Google Books project. The Authors Guild filed a copyright infringement lawsuit against HathiTrust in the United States District Court, Southern District of New York, in November 2011, claiming that HathiTrust's scanning program constituted copyright infringement. HathiTrust answered the complaint in December 2011. The Author's Guild Motion for Partial Judgment argues that HathiTrust admitted to most of the allegations, and the Court should hold that HathiTrust's digitization projects are "not protected by any defense recognized by copyright law."

Urban Outfitters and the Navajo Nation
The Navajo Nation filed a complaint against Urban Outfitters Inc., on February 28, 2012, in the United States District Court for the District of New Mexico, alleging trademark infringement and violations of the federal Indian Arts and Crafts Act. The dispute began in 2011, when Urban Outfitters began selling a line of Navajo-branded products, particularly underwear and liquor flasks. The Navajo Nation sent a cease-and-desist letter to Urban Outfitters, demanding it pull the name "Navajo" from these products. The Navajo Nation claimed that the use of "Navajo" was "derogatory and scandalous," and Urban Outfitters removed the product names from its website. The lawsuit claims that Urban Outfitters is still selling "Navajo" branded items through its other company brands, in catalogs, and in retail stores. The Navajo Nation, which has 10 registered trademarks of the Navajo name, alleges in its lawsuit that the "fame and reputation of the Navajo name and marks is such that, when defendant uses the 'Navajo' or 'Navaho" marks with its goods and services, a connection with the Navajo Nation is falsely presumed."

Interpol has arrested 25 suspected members of the hacker group Anonymous in Europe and South America with the help of local law enforcement agencies. Those arrested are suspected of planning coordinate cyber-attacks against institutions such as Columbia's defense ministry and presidential websites, Chile's Endesa electricity company and national library. Among those arrested were four individuals who are suspected to have attacked Spanish political party web sites. These four are suspected of publishing information about police assigned to the royal palace. As authorities have made arrests of Anonymous members, Anonymous has made increasing attacks on law enforcement and military targets.

Madonna allegedly changed the title of her new single her upcoming album MDNA from "Girls Gone Wild" to "Girl Gone Wild" to avoid legal action from "Girls Gone Wild" founder Joe Francis. Mr. Francis claims that he threatened legal action against Interscope Records if the single was released with the original title. In a statement, he claims that the change from "Girls Gone Wild" to "Girl Gone Wild" was "an immediate solution form to thwart any injunctive relief." "Clearly her label was trying to avoid legal action surrounding the song," "[b]ut this is still infringement as far as the law is concerned and we have been in touch with Madonna's representatives in an effort to resolve this issue." Madonna's manager Guy Oseary claims that Francis had no impact on the name change as the song titles have been in constant flux for weeks, and that Madonna does not even know that Joe Francis exists.

On March 1, 2012, multiple television networks filed two separate lawsuits against start-up company Aero for wanting to broadcast without having "licensed this television programming from those who own it." Aereo is a small company that plans to launch its services on March 14, 2012, providing live streaming of major networks to mobile devices for a monthly fee. The first lawsuit, filed in the Southern District of New York by networks including Fox, Univision and PBS, claims that Aereo's planned re-transmittal is unlicensed and without consent. The complaint lists three causes of action: copyright infringement of the public performance right under 17 U.S.C. §§ 106(4), 501, copyright infringement of the reproduction right under 17 U.S.C. §§ 106(1) 501, and unfair competition under New York common law.

March 9, 2012

Weekly Issues in the News

By Geisa Balla


The Justice Department has warned six of the biggest U.S. publishers that it plans to file an antitrust lawsuit against them for colluding to raise the price of electronic books. The publishers facing this potential suit are Apple Inc., Simon & Schuster Inc., Hachette Book Group, Penguin Group, Macmillan and Harper Collins Publishers Inc. The parties have reportedly held settlement talks to avoid litigation. The potential lawsuit stems from Apple's move to change how publishers charge for e-books. Traditionally, under the "wholesale model," publishers sold books to retailers for half of the recommended cover price, and retailers could then price the books for less than the cover price if they wished to do so. When Apple launched its first iPad in 2010, Steve Jobs suggested moving to an "agency model," under which the publishers would set the price of the book and Apple would take a 30% cut. "We told the publishers, 'We'll go to the agency model, where you set the price, and we get our 30%, and yes, the customer pays a little more, but that's what you want anyway,'" Mr. Jobs was quoted as saying by his biographer, Walter Isaacson. The Justice Department now believes that Apple acted in concert with other publishers to raise book prices across the industry, in violation of federal antitrust laws.

Alexander Wang Lawsuit

A $50 million lawsuit was filed on March 6, 2012, against designer Alexander Wang in Queens Supreme Court, alleging wage and hour violations. The lawsuit was filed by Wenyu Lu, a 56 year-old former employee of Wang, who accuses Wang of running a sweatshop in Chinatown. The lawsuit alleges that workers were forced to work 16 hours a day or longer, without overtime. Lu claims to have been hospitalized because he was forced to work 25 hours without a break, under the threat of being fired. Wang has yet to be served with the lawsuit, but a spokesperson released the following statement to Women's Wear Daily: "The company takes its obligations to comply with the law very seriously, including the relevant wage and hour regulations, the payment of overtime to eligible employees and having a safe working environment for all of our employees. We will vehemently defend any allegations to the contrary."
Louis Vuitton

Louis Vuitton threatened the University of Pennsylvania Law School with trademark infringement lawsuit after a student group parodied the LV monogram on a poster for a fashion law symposium. Luis Vuitton sent a cease and desist letter to the school, stating "This egregious action is not only a serious willful infringement and knowingly dilutes the LV Trademarks, but also may mislead others into thinking this type of unlawful activity is somehow 'legal' or constitutes 'fair use' because the Penn Intellectual Property Group is sponsoring a seminar on fashion law and 'must be experts'. . . I would have thought the Penn Intellectual Property Group, and its faculty advisors, would understand the basics of intellectual property law." In a reply the school's general counsel denied that the poster infringes on LV's trademarks, describing the laws that establish the public right to parody, especially for educational purposes. He also invited LV's attorney to attend the symposium to learn more about intellectual property.
Elite Model Management

The 2008 winner of the TV show "Holland's Next Top Model" won her lawsuit against Elite Model Management in the Amsterdam District court on March 7, 2012. As a winner of the TV show competition, Ananda Marchildon won a three-year contract with Elite, worth about $98,500. Yet she was dismissed from Elite after $13,000 worth of work because she did not lose enough weight. Specifically, Elite asked Marchildon to lose nine centimeters off her hip measurements, from 98 to centimeters to 90. An e-mail from an Elite representative to Marchildon read: "We agreed that you would come by us every two weeks for an evaluation, how it's going with your diet and exercise and losing weight. We're going to keep measuring you." The court awarded Marhcildon $85,000 in damages, plus interest and legal fees.

March 23, 2012

Weekly Issues In the News

By Geisa Balla

American Apparel

New York Supreme Court Justice Bernadette Bayne dismissed the Irene Morales lawsuit against Dov Charney, CEO of American Apparel, on March 22, 2012. Morales, a former American Apparel employee, filed the lawsuit against Charney in March 2011, alleging that Charney began sexually harassing her when she was 17 years old. Her lawsuit alleged that on her 18th birthday, Charney invited her to his apartment, held her prisoner and sexually abused her for hours. Morales eventually quit her job and suffered psychological trauma. Her lawsuit sought damages of $260 million. Charney's defense in this lawsuit was that when Morales left the company, she signed an agreement stating that she had no claims against the company, and that any future claims would be arbitrated. The court agreed with the defense, dismissing the case after a California court had ordered the same case into arbitration. Morales' attorney said that he would appeal the decision. "The California case and the New York case are separate," he said. "The California case involves a blog impersonation and the New York case involves sexual harassment."

A class action complaint was filed against Google Inc. in the Southern District of New York on March 20, 2012, alleging that Google's new privacy policy is deceptive and violates the privacy of consumers. At issue is Google's new privacy policy, whereby Google collects consumer information through each of its services, but does not allow consumers to keep such information separate. The causes of action alleged are violations of the Federal Wiretap Act, Violations of the Stored Electronic Communications Act, Violations of the Computer Fraud Abuse Act, Common Law Intrusion Upon Seclusion, Common Law Trespass to Chattels, Unjust Enrichment, Common Law Commercial Misappropriation, and Violation of Section 349 of New York General Business Law.
The class is defined as "All persons and entities in the United States that maintained a Google account from August 19, 2004 to February 29, 2012, and continued to maintain that Google account on or after March 1, 2012, when Google's current privacy policy became effective."

Former users of the file-sharing site Megaupload have received fake settlement letters asking for monetary settlement. Megaupload was shut down by the Department of Justice and Federal Bureau of Investigations in January 2012. Now, former users are receiving settlement offers from a fake German firm "Dr. Kroner & Kollegen of Munich," claiming to act on behalf of Universal, Sony, EMI Paramount, Warner Brothers and Dreamworks. The letters do not list the actual downloaded files, and do not contain the typical "cease and desist" language. The letters inform the infringers that they are now liable for fines of 10,000 Euros, but they can settle the claim for 147 Euros. The infringers are instructed to wire the money to an address in Slovakia, not Germany.
Alexander Wang

The sweatshop allegation lawsuit against Alexander Wang has been temporarily discontinued. Earlier this year, a lawsuit was filed against Wang by a former employee of Wang, claiming that employees were forced to work in sweatshop conditions in Chinatown. The plaintiff's attorney, Ming Hai, filed a motion to discontinue the case without prejudice, claiming that he has relinquished the case to another attorney who will re-file the case in federal court. Wang's attorney, Hugh Mo, says the case is so flawed that it should be dismissed with prejudice. The change in attorneys might have something to do with an unrelated dispute between attorneys Hai and Mo. Hai issued a $5,000 fine and a court-ordered apology letter to Mo for misconduct in an entirely different case. Once Hai filed his motion for discontinuance on the Wang case, Mo sent Hai a letter threatening to take legal action against him unless he discontinued the case with prejudice. Yet Hai claims he was not fired, but recommended that the plaintiffs move the case to federal court and hire attorneys who specialize in federal labor laws.
Desperate Housewives v ABC

Nicollete Sheridan's lawsuit against ABC has resulted in a mistrial. Sheridan, who starred on the show, filed a lawsuit against ABC and the show's creator Marc Cherry, claiming that she argued with Cherry over a script, and he allegedly hit Sheridan in the head, then killed her character, eliminating her acting job. Sheridan sought $5.7 million in back pay from ABC. The jury was deadlocked at 8-4 in favor of the actress, and nine jurors needed to agree on a verdict. The jurors deliberated for three days, citing credibility of witnesses as the reason for their prolonged deliberations.

March 30, 2012

Weekly Issues in the News

By Geisa Balla


Facebook Inc. moved to dismiss Paul Ceglia's complaint on March 26, 2012. Paul Ceglia filed a lawsuit against Mark Zuckerberg and Facebook in 2010, claiming that pursuant to a contractual agreement with Zuckerberg, he owns 50 percent of the social media site. In his complaint Ceglia had attached documents, now at issue, to show that this agreement existed. In its motion to dismiss, Facebook called the claims a "fraud and a lie", and depicted Ceglia as desperate for cash. The motion discusses the results of months-long investigations and forensic analysis of emails from Zuckerberg's college days. This investigation, according to Facebook, showed that Mr. Ceglia forged the contract and then attempted to cover his tracks with fake emails. Facebook claims that the second page of the contract produced by Ceglia does in fact contain Zuckerberg's signature, but the contract that Zuckerberg singed had a different first page. Facebook alleged that Mr. Ceglia baked the contract in the sun so the ink would appear aged and could not be tested by experts. Facebook also claimed that none of the emails in Mr. Ceglia's complaint showed in its search of Harvard's servers.

Nike v Reebok

Southern District of New York judge Kevin Castel issued an order on March 28, 2012 in favor of Nike Inc., blocking Reebok International from selling New York Jets apparel featuring the name of Tim Tebow. Nike filed a licensing dispute lawsuit against Reebok on March 27, 2012. The Denver Broncos traded Tebow to the Jets on March 21st. The order prevents Reebok from manufacturing, selling and shipping the alleged unauthorized apparel for the NFL team and bearing Tebow's name. The order also requires Reebok to offer to buy back any such apparel from retailers and recall products from shipping channels. The court denied Nike's demand to destroy any unauthorized Tebow products. Nike's complaint alleged that Nike will begin an exclusive five-year contract with the NFL to sell uniforms and related apparel for all 32 NFL teams on April 1, 2012. Nike claims that Reebok has no current agreement to sell Tebow/Jets products and that Reebok's licensing agreement with the NFL expired prior to this month. Nike's lawsuit does not concern Broncos products, or those made before March 1, 2012. A hearing is set for April 4, 2012, to decide whether the ban should be extended.

Gucci v. Guess

Gucci's trademark infringement trial against Guess in the Southern District of New York began on March 28, 2012. Gucci first filed a trademark infringement lawsuit against Guess in 2009, claiming that Guess was selling items with logos that are "studied imitations of the Gucci trademark." The trademarks in questions are a green and red stripe design, a square G, the designer's name in flowing script and a diamond pattern with repeating interlocking G's. Gucci claims that Guess knocked off over $221 million in Gucci products. Guess had argued in court filings that Gucci cannot claim infringement because it sat on its rights for at least seven years before taking action against Guess. In his opening argument, Guess attorney Daniel Petrocelli also argued that the two brands are different, that Guess had no reason and did not scheme to be like Gucci, and while Gucci uses leather, Guess uses plastic. He noted that Guess products are less than $100 and are geared toward women who cannot afford luxury goods like Gucci. Gucci is seeking damages of more than $124 million. The trial is expected to last two weeks.
Dolce & Gabbana

Dolce & Gabanna filed a lawsuit in the South African Western Cape High Court against gift shop Dolce & Banana. The lawsuit demands Dolce & Banana to change its name, and accuses Dolce & Banana of "objectionable conduct and of "diluting" the luxury brand's name. Shop owner Mijou Beller promptly changed the name of the shop to " ... & Banana."

April 6, 2012

Weekly Issues in the News

By Geisa Balla

Viacom v. YouTube

The 2nd Circuit Court of Appeals reversed a June 2010 decision, which had been considered a landmark decision in setting guidelines for websites to use content uploaded by users. The lawsuit was first filed in 2007 by Viacom to stop the posting of clips of TV programs on YouTube. The case tested the Digital Millennium Copyright Act of 1998, which limits the liability of online service providers for copyright infringement by users. Southern District of New York Judge Louis Stanton ruled on the case in 2010 in favor of YouTube, reasoning that YouTube could not be held liable for simply having "general awareness" that such videos might be posted, and that it does not need to monitor such activity. The decision was overturned, when Judge Jose Cabranes for the 2nd Circuit held that "a reasonable jury could find that YouTube had actual knowledge or awareness of specific infringing activity on its website." A YouTube representative stated in an e-mail: "All that is left of the Viacom lawsuit that began as a wholesale attack on YouTube is a dispute over a tiny percentage of videos long ago removed from YouTube. Nothing in this decision impacts the way YouTube is operating." Viacom, in a statement, said the appeals court "delivered a definitive, common sense message to YouTube: intentionally ignoring theft is not protected by the law."

Facebook v. Yahoo

Facebook filed a counterclaim against Yahoo this week in Yahoo's patent infringement litigation against Facebook initiated in March 2012 in the Northern District of California. Facebook is claiming that Yahoo is infringing upon 10 of Facebook's patents, five of which target features related to Yahoo's online advertising business. One of the allegedly infringing patents relates to Yahoo's Flickr photo sharing service, and its ability to connect with other users, to identify people in photographs and to generate personalized news feed. Facebook General Counsel Ted Ullyot said: "While we are asserting patent claims of our own, we do so in response to Yahoo's short-sighted decision to attack one of its partners and prioritize litigation over innovation."

Huffington Post

Southern District of New York Judge John Koeltl dismissed the lawsuit against the Huffington Post on March 30, 2012. This lawsuit was brought by unpaid bloggers for the Huffington Post, who claimed that the work of unpaid content providers for the Huffington Post gave it its value. AOL Inc. purchased the Huffington Post for $315 million last year, and the lawsuit claimed that the estimated 9,000 bloggers are entitled to about one-third of the purchase price. Judge Koeltl dismissed the lawsuit, reasoning that no one forced the bloggers to repeatedly provide their work with no expectation of being paid, and they got what they bargained for when their work was published. "The principles of equity and good conscience do not justify giving the plaintiffs a piece of the purchase price when they never expected to be paid, repeatedly agreed to the same bargain, and went into the arrangement with eyes wide open," the judge wrote. The case was dismissed with prejudice. Attorneys for the bloggers stated that they are considering their options going forward.

Gucci v. Guess

Gucci's trademark infringement trial against Guess continued this week. Gucci first sued Guess in 2009, claiming that Guess was selling items with logos that are "studied imitations of the Gucci trademark". Paul Marciano, the C.E.O. of Guess, testified on April 4, 2012, denying that his company intentionally copied Gucci's products. With regards to copying Gucci's interlocking "G"s in beige fabric, trimmed with red and green, he stated, "This kind of pattern is common in the world of fashion and it's not particular to Gucci... What I understand here, which is very frequent [in fashion], is an inspiration to create an original bag of G's with the same components. That's what design is." Yet Gucci's lawyers presented emails Marciano had exchanged with supplier Marc Fisher Footwear regarding sending Gucci fabric samples to Guess's own fabric supplier for copying.

April 14, 2012

Weekly Issues in the News

By Geisa Balla

One Direction

California band "One Direction" has filed a trademark infringement suit against UK band "One Direction" in the Central District of California. The UK's "One Direction" was discovered on Simon Cowell's show, The X Factor, in 2010. The five members of the band, Simon Cowell's Syco Entertainment and Sony Music were named as defendants in the lawsuit. The plaintiff claims that the California band has been using the name "One Direction" since 2009, and has recorded two albums. The band filed a trademark application with the USPTO in February 2011. The UK "One Direction" reached instant stardom after its appearance on The X Factor, and has a much higher profile than the American "One Direction." The lawsuit alleges that Syco and Sony Music "chose to ignore the plaintiff's rights and willfully infringed them" after they realized that the bands shared the same name. The plaintiff in this action is seeking an injunction that would stop Syco and Sony Music from using "One Direction" in promotional materials, treble damages on the profits made by its UK rival, as well as compensatory damages in excess of $1 million. The lawsuit said that the continued use by both bands of the same name was causing "substantial confusion and substantial damage" to the goodwill earned by the California group.

Nike v. Reebok

Nike and Reebok have settled their lawsuit related to the sale of New York Jets football apparel with Tim Tebow's name. Nike first filed a lawsuit against Reebok on March 27, 2012, in the Southern District of New York, alleging that Reebok had no right to sell Tebow-related Jets merchandise as Reebok's licensing agreement with the NFL had expired at the end of February 2012. Pursuant to the settlement, Reebok will halt the sale of the Jets apparel bearing Tebow's name and will offer to buy apparel already shipped to retailers. Nike's exclusive five-year contract to sell apparel for the NFL began on April 1, 2012, and Tebow-Jets merchandise will be available for sale in late April.,_Nike_settle_suit_over_Tebow_apparel_sales/

Los Angeles Dodgers

The Los Angeles Dodgers announced that it expects to emerge from bankruptcy by the end of April. The Dodgers first filed for Chapter 11 Bankruptcy in June 2011. On March 27, 2012, the Dodgers announced that a group of buyers, led by investment firm Guggenheim Partners and Earvin "Magic" Johnson, had agreed to buy the team for $2 billion. The Dodgers are now filing an amended plan of reorganization, which would provide payments in full to all the allowed claims of creditors. The bankruptcy judge overseeing this case stated that he will confirm the plan to exit Chapter 11.


Apple rejected the U.S. Justice Department's allegations that it colluded with publishers over electronic book pricing. The Justice Department filed an antitrust lawsuit against Apple and five other publishers, claiming that the parties conspired to fix the prices of electronic books. The Justice Department reached a settlement with three of the publishers. Apple is defending its pricing structure. In a statement to the Wall Street Journal, Apple representative Natalie Kerris stated: "The launch of the iBookstore in 2010 fostered innovation and competition, breaking Amazon's monopolistic grip on the publishing industry . . . Just as we have allowed developers to set prices on the App Store, publishers set prices on the iBookstore".

April 20, 2012

Weekly Issues in the News

By Geisa Balla

Copyright Law and Gray Market Goods

The U.S. Supreme Court will examine two contradictory provisions in the Copyright Act in Kirtsaeng v. John Wiley & Sons. The competing provisions are the first sale doctrine, which permits the owner of a lawfully-produced work to resell the work without the authority of the copyright owner, versus the one controlling the importation of copyrighted material into the United States. The case at hand involves a Thai student, Kirtstaeng, who was selling used foreign-manufactured books on eBay at a profit. The student's position is that the first sale doctrine allows him to resell these books. John Wiley & Sons, whose Asian subsidiary produced some of the books in question, disagreed, and filed a copyright infringement lawsuit in 2008 in the Southern District of New York. The jury eventually found Kirtsaeng liable, and Kirtsaeng appealed. The Second Circuit upheld the verdict, ruling that the first-sale doctrine applies only to goods made in the United States. The Appellate Court also noted a "particularly difficult question of statutory construction" because of the competing Copyright Acts provision. The Supreme Court is expected to hear arguments in its October term for 2012.

Louis Vuitton

The U.S. International Trade Commission (ITC) issued a decision this week, putting border agents on notice to block counterfeit Louis Vuitton goods from entering the United States. Louis Vuitton filed an ITC complaint in December 2010, alleging that various Chinese counterfeiters and some U.S. retailers were infringing its Toile trademark. Some of the defendants settled the matter before trial, and the remaining defendants failed to participate in the proceedings. The decision by Administrative Law Judge Charles Bullock doesn't specify a remedy, but says that the ITC may issue cease-and-desist orders to keep the alleged counterfeiters from "engaging in unfair acts in the importation and sale" of infringing articles. Vuitton's global intellectual property director, Valerie Sonnier, told Women's Wear Daily that, "The chief administrative law judge recognizes the importance of protecting intellectual property and took the welcome step of ensuring that its orders include all merchandise that infringes on our Toile Monogram Marks, and not just products of the respondents in this case."

Superman and DC Comics

Attorney and businessman Marc Toberoff represented the heirs of Superman's creators, Jerome Segel and Joe Shuster, in a copyright dispute over the Man of Steel. After Toberoff won summary judgment for his clients in 2008, DC Comics filed a declaratory judgment action against him, his companies and his heirs. DC Comics contends that Toberoff induced Siegel and Shuster's families to break previous rights agreements, and in return, Toberoff would get 40% of whatever the families would earn from Superman rights. The court decided on April 17, 2012, that Toberoff cannot claim attorney-client privilege on the documents he turned over to prosecutors investigating a former associate who allegedly stole case documents from his office. DC Comics and Warner Brothers will now have access to the materials that support their arguments that the Siegel and Shuster families had entered into rights agreements before Toberoff interfered in their relationship with DC Comics. A Warner Brothers spokesperson stated, "We are extremely pleased that the 9th Circuit unanimously found in our favor. The ruling means that defendant Marc Toberoff must now turn over critical evidence in the pending litigation against him and others."


Magician and comedian Teller, of Penn & Teller, filed a lawsuit in the District of Nevada on April 11, 2012, against Dutch entertainment Gerard Dogge over Teller's copyright illusion known as "Shadows." The illusion involves a spotlight on a vase containing a rose, where the shadow of the rose is projected onto a white screen. Using a knife, Teller then severs the leaves and petals of the shadow, and the corresponding leaves and petals of the actual rose fall to the ground. The complaint alleges that Shadows is "the oldest most venerated piece of material in Penn & Teller's show." The illusion was registered with the Copyright Office in 1983. The defendant in this matter posted a YouTube video where he performs the illusion, and offers to sell the trick. Once Teller found out about the video, he directed YouTube to remove it and contacted Dogge, asking him to stop marketing the work, and even asked him to pay for it. Dogge countered, demanding a much higher sum from Teller, and threatened to disclose the secret to the illusion if Teller did not agree to Dogge's terms. The lawsuit seeks a permanent injunction against any copyright infringement, plus damages.,_sues_over_magic_trick/

The Bachelor

Two African-American men filed a class action racial discrimination lawsuit against ABC television and the producer of the reality show "The Bachelor" and "The Bachelorette." The plaintiffs are Nashville residents Nathaniel Claybrooks, an All-American football player, and Christopher Johnson, an aspiring NFL player. They claim that in the 10 years and 23 seasons of the shows, a person of color has never been featured in a central role. Both plaintiffs applied during an open casting in August 2011. Claybrooks claims that his interview lasted less than half the time of white applicants. Johnson alleges that he "did not get the opportunity to even make it to the second level," stating, "I was stopped by a young gentleman about five feet into the door. He saw fit to ask me exactly what was I doing here." Plaintiffs' counsel stated that he estimated there have been dozens or hundreds of contestants turned away because of their race, reasoning "How do you explain zero [Bachelors and Bachelorettes of color] for 23 [seasons]?" The plaintiffs refused to discuss their financial goals, but their attorney insisted: "This case is impact litigation... it can be a vehicle for change."

April 27, 2012

Weekly Issues in the News

By Geisa Balla

Trade Secrets During Discovery

New York Supreme Court Justice Shirley Werner Kornreich issued a decision on April 23, 2012, holding that plaintiffs who claim their trade secrets were misappropriated must identify what those secrets were during discovery. The decision was issued in a lawsuit by MSCI, which alleged that a former employee and his new employer misappropriated MSCI's source code for risk management software to sell to investment institutions. In a November ruling, the judge permitted MSCI to identify only which portions of its source code were not trade secrets. The defendants argued that it was unfair to expect defendants to deduce what secrets were at issue. The judge sided with them, holding that MSCI must identify "with reasonable peculiarity" the trade secrets were allegedly misappropriated. "Only by distinguishing between the general knowledge in their field and their trade secrets, will the court be capable of setting the parameters of discovery and will defendants be able to prepare their defense," Kornreich wrote. "Plaintiffs who have brought this action, bear the burden of proving their allegations," the judge continued. "Merely providing defendants with plaintiffs' 'reference library' to establish what portions of their source code are in the public domain shifts the burden to defendants to clarify plaintiffs' claim.",_judge_rules/

Apple and Motorola

The International Trade Commission (ITC)issued a preliminary ruling that Apple Inc. infringed on a Motorola Mobility Inc. patent in making its iPhones and iPads. The patent at issue covered eliminating noise and other interference during voice and data transmissions. A full commission will review the preliminary decision and make a final ruling in August. Motorola also accused Apple of violating three other patents, but the ITC did not rule in Motorola's favor on those patents. Motorola, who is being acquired by Google Inc., has filed related lawsuits against Apple in federal courts in Illinois and Florida. These legal battles are part of the larger market share battle between Apple's products and Google's Android software. Google has not yet been directly involved in the lawsuits because it does not make its own phone, but that will change once it acquires Motorola.

Facebook and AOL

Facebook will pay Microsoft Corp $550 million for 650 patents and patent applications, as well as a license to another 275 patents and applications owned by Microsoft. Earlier this month Microsoft purchased more than $1 billion in AOL Inc. patents. Microsoft's General Counsel stated that the Facebook deal allows Microsoft "to recoup over half of our costs while achieving our goals from the AOL auction." In the meantime, Facebook is also in a legal battle with Yahoo Inc. Yahoo sued Facebook earlier this year, alleging that Facebook infringed 10 Yahoo patents, and Facebook countersued alleging that Yahoo infringes 10 of Facebook's patents.$550_mln_for_AOL_patents/


Google has agreed to pay a $25,000 fine to the Federal Communications Commission (FCC) for allegedly impeding the agency's investigation into whether Google violated federal rules when its street-mapping service collected and stored data from unencrypted Wi-Fi networks. The FCC stated that Google executives "deliberately impeded and delayed" its investigation. A Google engineer who developed the code for Google's Street View service declined to testify and invoked his Fifth Amendment rights against self-incrimination. Google responded that it did not provide "untimely" responses, but the delays by the investigators lengthened the FCC's review. Google told the FCC in a letter that it "disagrees with the premise" of the fine, but "has determined to pay the forfeiture proposed [by the FCC] in order to put this investigation behind it." The FCC stated it did not find enough evidence to conclude that Google violated federal law designed to prevent electronic eavesdropping.

May 4, 2012

Weekly Issues in the News

By Geisa Balla

Betsey Johnson

U.S. design house Betsey Johnson LLC filed for Chapter 11 bankruptcy protection on April 26, 2012 in the U.S. Bankruptcy Court, Southern District of New York. It listed $21.3 million in assets and $15.4 million in liabilities as of the end of 2011. In its petition, Betsey Johnson cited sales and profitability for the bankruptcy filing, stating that its retail store sales have fallen 20% and profitability has dropped by more than 50% since 2007. The company is seeking offers to buy all or parts of its business, and has not been able to find buyers or investors so far. "The economic recession had a devastating impact on higher-end fashion apparel brands, including Betsey Johnson Fashions," the company said, adding that cash constraints had left it unable to turn the situation around. For fiscal year ending December 31, 2011, Betsey Johnson generated $60 million in sales, but recorded a negative EBITDA of $5.7 million.

Google Books

In the ongoing Google Books dispute, Google Inc. argued this week that associations of authors and photographers should not be allowed to sue the company as a group. The Authors Guild and the American Society of Media Photographers filed their lawsuit against Google, alleging that Google infringed on copyrights when it signed contracts with libraries for scanning, distributing and displaying about 20 million books. The attorney for the Authors Guild said that Google was an "intimidating defendant" for individuals, and that this "action calls out for a mass litigation to adjudicate the mass digitization." Judge Denny Chin did not issue a decision, but noted in oral arguments that it would take forever to resolve cases brought by individual authors, and that it "seemed to make sense" to consider the lawsuit as a group. This litigation began seven years ago over Google's desire to create the world's largest digital library. In March 2011, judge Denny Chin rejected a settlement in the matter over antitrust and copyright concerns.,_authors_go_head_to_head_over_digital_books/

Kurt Cobain

Courtney Love continues to lose control over the estate of her late husband, Nirvana front man Kurt Cobain. In 2009, Love lost custody of the couple's only daughter Frances Bean Cobain. Recently uncovered documents now show that Frances Bean has taken over control of the publicity rights for Kurt Cobain's name, likeness and appearance. The Fix reports that "the documents show that Love agreed to step down as Acting Manager of End of Music LLC--the business entity responsible for generating cash from Cobain's publicity rights--once she'd received a $2.75 million loan from Frances' trust fund in 2010 . . . Until Courtney pays it back, she won't receive a dime from Kurt's name, likeness or appearance from the deals formed by Frances and her advisers since December 2010." Frances also has the final say in business agreements of End of Music LLC. Courtney Love remains a company member, but has no power to make decisions on anything bearing the likeness of Cobain.

Greg Mortenson

The U.S. District Court for the District of Montana dismissed a class-action fraud lawsuit against Greg Mortenson, author of bestselling book "Three Cups of Tea." The lawsuit alleged that Mortenson fabricated much of the story in his book about promoting education for girls in Pakistan and Afghanistan. It also alleged that Mortenson and his publisher and non-profit Central Asia Institute fabricated material intended "to induce unsuspecting individuals to purchase his books and donate to [Central Asia Institute]. The court dismissed the lawsuit for the ""imprecise, in part flimsy, and speculative nature of the claims and theories advanced" by the plaintiffs. The lawsuit was filed in May 2011, after a "60 Minutes" program that disputed the author's account, and stated that his institute was largely being used to promote the author's book. The Montana Attorney General also investigated Mortenson's claims, and Mortenson acknowledged that less than half of his institute's proceeds were used to build schools, but that "much of the remainder was spent on CAI's other charitable programs." Mortenson entered into a settlement with the Montana Attorney General, agreeing to pay $1 million to compensate his Montana-based charity for using his non-profit to promote and buy copies of his book.

Linda Evangelista

Model Linda Evangelista is asking for a record $64,000 month in child support from millionaire François-Henri Pinault for their 5 year-old son. The child could get a total of $807,000 a year in child support, if the Court grants Evangelista's motion. Pinault is the chief executive of PPR, the conglomerate that owns Yves Saint Laurent, Gucci and Bottega Veneta. Pinault's lawyers claim that Evangelista's claim is beyond excessive. Yet Evangelista counters that their child needs armed bodyguards and his own driver. When questioned by the court as to why her son needs around-the-clock nannies and how much she works, Evangelista responded that when she works, it can be a 16-hour day. "On days when I do not work, I am working on my image. I have to hit the gym. I have beauty appointments. I have to work toward my next job and maintaining my image, just like an athlete."

May 11, 2012

Weekly Issues in the News

By Geisa Balla

Myspace as the Newest FTC Settlement

Myspace settled charges with the FTC that it misled millions of users about sharing personal information with advertisers. The settlement will require the company to create a comprehensive program that protects consumers' information and bars Myspace from misrepresenting how it protects its users' privacy. Myspace will be subject to independent reviews of its privacy program for the next 20 years. The FTC settled in 2010 with Twitter over failure to safeguard users' personal information, and in 2011 it found that Facebook and Google Inc. had also engaged in deceptive privacy practices. Facebook and Google are subject to 20 years of audits, and Twitter is subject to 10 years of audits.


The Second Circuit Court of Appeals held on May 10, 2012, that CBS Corp and its chief executive, Leslie Moonves, are not liable to shareholders to failing to quickly disclose that the company would take a $14 billion writedown during the 2008 financial crisis. The Court held that the shareholders did not sufficiently show that CBS committed securities fraud by ignoring accounting standards for valuing goodwill. CBS shares dropped 20 percent on October 10, 2008, when CBS announced the writedowns. CBS is required by the Financial Accounting Standards Board to examine whether to write down goodwill, which reflects the difference between a company's value taken as a whole and the company's book value. The shareholders claimed in their lawsuit that CBS should have reviewed its goodwill in early 2008, as the economic downturn was commencing and as its market value and advertising revenue were dropping. However, the Court did not agree. "All of the information alleged to constitute 'red flags' ... were matters of public knowledge," it said. "CBS's market price would at all pertinent times have reflected the need for, if any, or culpable failure to undertake, if any, interim impairment testing.... That being the case, the second amended complaint does not sufficiently allege reliance upon a fraudulently inflated price."


Zynga Inc., the publisher of popular Facebook games like FarmVille and CityVille filed a trademark infringement suit against French game publisher Kobojo in federal court in San Francisco. The lawsuit is based on Kobojo's release of PYRAMIDVILLE in early 2011. The complaint alleges that "Facebook users are likely to believe, erroneously, that PYRAMIDVILLE is a member of Zynga's 'VILLE Family of Games." Zynga's effort to secure a trademark for the word "Ville" has stalled in the USPTO. The complaint states that Zynga has "consistently promoted the 'VILLE Family of Games together as a family, identified by the distinctive 'VILLE suffix." "Zynga's "Ville" family includes many well-known games, including FarmVille, CityVille and CastleVille, and the "Ville" suffix is strongly associated by gamers with Zynga," Zynga said in a statement Monday. "Given Kojobo's refusal to change their game name, legal action was necessary to defend our famous marks and prevent player confusion." The claim seeks treble damages against Kobojo.

Christopher Burch

A new lawsuit against Christopher Burch, ex-husband and business partner of designer Tory Burch, alleges discrimination and preference for hiring gay men. The lawsuit claims that Mr. Burch openly stated that he "only hired gay men because they were productive and he trusted them." The plaintiff and former employee Jamie Ardigo allegedly found the remark "extremely offensive" and complained about it and other "inappropriate comments," resulting in his termination from his human resources job in February 2012. Burch's attorney stated: "The defendants deny the allegations of discrimination and retaliation set forth in the complaint and are prepared to mount a vigorous defense."


A Virginia court recently ruled that the "like" button on Facebook is not constitutionally protected speech. Six people in Virginia said they were fired after "liking" the page of their boss' election rival. Their boss, Sheriff B.J. Roberts, fired them for supporting an opponent in his 2009 re-election bid. The workers then sued, saying that their First Amendment rights were violated. While public employees are allowed to speak as citizens on matters of public concern, the judge on the case ruled that clicking the "like" button did not amount to expressive speech. The judge stated that while other courts have ruled that Facebook posts are protected speech, simply clicking on the "like" button is different and does not warrant First Amendment protection. "It's not a very deep one, but you're making a statement." James H. Shoemaker, a lawyer for one of the dismissed workers, said that he was surprised by the April 24th ruling and stated that it would be appealed.

May 18, 2012

Weekly Issues in the News

By Geisa Balla

E-books, Apple

Southern District of New York Judge Denise Cote has denied motions to dismiss filed by Apple Inc. and five other publishers in the e-books class action case. The lawsuit is related to Department of Justice (DOJ) charges in April 2012, accusing Apple and other e-book publishers of colluding to break up's dominance of the digital book market. HarperCollins Publishers Inc., Simon & Schuster Inc. and Hachette Book Group reached settlements with the DOJ. Apple, Macmillian and Penguin said in court last month that they want to go to trial to defend themselves of the charges. The consumers' main allegation in the class action suit is that the publishers worked together to raise prices and decrease competition, with Apple coordinating the agreement among them. The publishers moved to dismiss the complaint, but the judge was not persuaded. Judge Cote said that as alleged in the complaint, "it is presumed that the conduct by all parties would be unlawful under the rule of reason." In their motion papers, the defendants argued that the alleged pricing agreement was implausible, and that after the purported pricing agreement, prices became more varied, not less so. According to the DOJ's complaint, the price fixing took place in early 2010, as Apple was introducing its iPad, and e-book prices went up an average of $2 to $3 in a three-day period in early 2010.,_publishers_must_face_consumers__e-book_suit/

Skechers Settlement

Skechers USA Inc. has agreed to pay $50 million to settle Federal Trade Commission (FTC) charges that it made unfounded claims when it advertised that its "toning shoes" would enable users to get stronger and lose weight. The FTC stated that Skechers was deceptive in the making of its Shape-ups, Resistance Runner, Toners and Tone-ups shoes. Skechers will pay $40 million to the FTC, which will return most of this settlement to consumers who bought the company's toning shoes. Skechers will pay an additional $5 million to 43 states and the District of Columbia, and another $5 million to the class action attorneys. David Vladeck, director of FTC's Bureau of Consumer Protection stated: "Skechers' unfounded claims went beyond stronger and more toned muscles. The company even made claims about weight loss and cardiovascular health." Skechers denied that its advertising was deceptive, saying that peer-reviewed journals had found fitness benefits from toning shoes. David Weinberg, the company's CFO, said in a statement: "We settled to avoid the cost and distraction of protracted legal battles so we could get back to doing what we do best." The FTC settled a similar claim with Reebok International Ltd. in 2011, where Reebok said it would pay $25 million for similar charges.

White et al v. West Publishing Corporation

On May 16, 2012, U.S. District Judge Jed Rakoff ruled that attorneys who did not register their works cannot sue West and LexisNexis for violating their copyrights. The decisions stems from a copyright infringement lawsuit brought in February 2012, accusing West and LexisNexis of unjustly profiting from selling attorneys' copyrighted filings. The class action lawsuit had two putative subclasses: attorneys with registered filings and attorneys with unregistered filings. Judge Rakoff stated that the subclass of lawyers who have not registered their filings with the U.S. Copyright Office do not have standing. He stated: "The statute is unequivocal that completing registration or pre-registration is a prerequisite to filing a claim."

Activision and Electronic Arts

Activision Blizzard Inc. settled a lawsuit with rival video game company Electronic Arts Inc. (EA), where Activision alleged that two of its former executives breached their employment contracts in develop games for EA. The two former executives developed the original "Call of Duty" game and several others in the series. After leaving Activision in 2010, the two former executives formed a new development studio, and signed an exclusive publishing and distribution agreement with EA. In a joint statement the companies stated: "Activision and EA have agreed to put this matter behind them." The details of the settlement were not disclosed.

Viacom and Time Warner

Viacom Inc. has settled a lawsuit with Time Warner Cable Inc. (TWC) over whether cable subscribers may watch shows on mobile devices such as iPads. Pursuant to the settlement, Viacom programming will become available over the TWC mobile app over the next several weeks. The companies said in a joint statement: "All of Viacom's programming will now be available to Time Warner Cable subscribers for in-home viewing via Internet protocol-enabled devices such as iPads." The terms of the settlement were not disclosed. Viacom settled a similar lawsuit over iPad streaming with Cablevision Systems Corp in August 2011. Viacom spokesman Mark Jafar said the settlement was "very good news for consumers.",_Time_Warner_Cable_reach_iPad_views_settlement/

June 2, 2012

Weekly Issues in the News

By Geisa Balla

Gucci v. Guess

Gucci won $4.6 million in its trademark infringement trial against Guess. Gucci had alleged that Guess was trying to "Gucci-ize" its products by selling wallets, bags, belts, shoes and other items with designs similar or identical to Gucci's. The lawsuit alleged that Guess's products confused the consumers and diluted Gucci's brand. After three years of litigation, in April, three-week non-jury trial was held in the Southern District of New York before Judge Shira Scheindlin. Gucci was asking for $120 million in damages from the lawsuit. On May 21, 2012, Judge Scheindlin released a 104-page opinion, holding that Gucci may recover just $4.66 million in its lawsuit. The decision stated that while Guess infringed some trademarks, Gucci was not entitled to damages reflecting lost sales or harm to its brand, and an analysis from its damages expert was deemed "highly speculative." Judge Scheindlin also awarded Gucci a permanent injunction against Guess's use of three of the four challenged designs.

The permanent injunction applies to a design with green-red-green stripes, a stylized "Square G," and a group of four interlocking "G"s known as a "Quattro G." Guess is satisfied with the decision, and its CEO Paul Marciano said that the decision showed that Gucci had "overreached" and "misled the court with a number of facts that were unsupported by the evidence."$4_66_ml,_ban_on_Guess_knock-offs/

Microsoft and Motorola

On May 24, 2012, a German court ruled in a hearing that Motorola Mobility infringed Microsoft's patents by offering the option in its mobile phones to send a longer text in a batch of several messages. Microsoft said in a statement: "We're pleased the court agreed today that Motorola has infringed Microsoft's intellectual property, and we hope Motorola will be willing to join other Android device makers by taking a license to our patents." Motorola expects a written decision and will then explore its options, including a possible appeal. The two companies, as well as other makers of mobile devices, are involved in several disputes across the globe over software features of the latest smartphones.


On May 23, 2012, a California jury decided that Google's Android mobile platform did not infringe on Oracle's patents. In this lawsuit, Oracle alleged that Google's Android phone trampled on its intellectual property rights to the Java programming language, which connects programs and operating systems. The issue in question was whether such computer language can be copyrighted. Google argued that it did not violate Oracle's patents, and that Oracle cannot copyright certain parts of Java, which is publicly available software. The jury decided in Google's favor on the patent issue. Although the jury found earlier that Oracle had proven copyright infringement for parts of Java, it could not unanimously agree on whether Google could fairly use that material. Without a finding on fair use, Oracle cannot recover damages on most of its copyright claims.

U.S. District Judge William Alsup has not yet decided several issues that could determine how a potential mistrial on the copyright issues would unfold.

Net Neutrality Rules

The legal fight over the U.S. government's new Internet traffic rules will likely drag into 2013. In 2010, the Federal Communications Commission (FCC) adopted "net neutrality" rules that forbid broadband providers from blocking access to lawful content, while leaving flexibility for providers to manage their networks. The rules were seen as a compromise, but still upset both public interest groups and industry players, which have filed suits challenging the rules.

Verizon Communications Inc. filed suit in September 2011, asking the court to have the rules thrown out, arguing that the FCC was "arbitrary" and "capricious" and acted beyond its statutory authority. Public interest groups have criticized the rules as being too weak, saying that the FCC was swayed by industry players. These and other cases were consolidated before the U.S. Court of Appeals for the District of Columbia. On May 25, 2012, counsel for the numerous parties proposed a briefing schedule with the U.S. Court of Appeals for the District of Columbia, setting November 21, 2012 as the deadline for their final briefs. If this schedule is accepted, oral arguments will likely be scheduled in 2013. The FCC has expressed confidence in the legal foundation for the rules, and recently unveiled the members of a net-neutrality oversight panel that will monitor the impact of the rules and make recommendations. Netflix, Comcast, AT&T and Walt Disney Co are among the companies represented on the advisory panel, as well as advocacy groups such as the Internet Society and National Urban League.

Gaylord v. United States

The Federal Circuit held that artist Frank Gaylord is entitled to royalty damages against the U.S. Postal Service (USPS). Plaintiff Gaylord created "The Column," a group of 19 stainless steel columns that form the centerpiece of the Korean War Memorial on the National Mall in Washington D.C. In 2002, after securing a license agreement from the photographer, the USPS issued a 37-cent stamp depicting "The Column", commemorating the 50th anniversary of the signing of the armistice ending the War. Roughly 86.8 million stamps were sold, as well as retail goods containing the image. The USPS also licensed the image to retailers but did not seek Gaylord's permission (he typically licenses his work for a 10% royalty fee).

He filed suit in 2006 under 28 U.S.C. 1498(b) for copyright infringement. The Federal Circuit held that Gaylord owned the copyright and that USPS was liable for infringement, but remanded for determination of damages. On remand, the Court of Federal Claims limited Gaylord's damages to $5,000, finding that this was the upper limit in the "zone of reasonableness" around Gaylord's actual damages. The court denied Gaylord's claim for 10% royalties, find that neither 28 U.S.C. § 1498(b) nor the Copyright Act authorized a royalty-based award for copyright infringement. Instead, the court applied the "zone of reasonableness" approached used in Steve Altman Photography v. United States, and set the limit at $5,000 because the USPS argued that it had never paid more than $5,000 to license an image and had a policy against paying royalties. Gaylord appealed.

On May 14, 2012, the Federal Circuit reversed, vacating the lower court's damages decision and remanding for determination of market value of the infringing use and award of prejudgment interest. The Federal Circuit found that the lower court should not have relied only on the USPS's self-serving statements of its internal policies, but should have considered Gaylord's typical royalty rate of 8 to10%, the 8% royalty rate charged by the USPS to use "The Column", and the various ways in which the USPS used the image. The Federal Circuit also held that the lower court erred in denying prejudgment interest, as Section 1487(b) permits recovery of a plaintiff's "reasonable and entire compensation," which includes "delay compensation."

Slander in New York

The New York Appellate Division, Third Department held on June 1, 2012 that it is no longer slander in New York to falsely call someone gay. The decision stems from a lawsuit filed by Mark Yonaty, who alleged that a woman spread a rumor about him in hopes that Yonaty's girlfriend would break up with him. He said the comment hurt and ultimately destroyed the relationship. The decision wipes out decades of rulings that calling someone gay is defamatory. In a unanimous decision, Justice Thomas Mercure stated: "These appellate division decisions are inconsistent with current public policy and should no longer be followed," as qualifying being called gay as defamatory is "based on a false premise that it is shameful and disgraceful to be described as lesbian, gay or bisexual."

June 8, 2012

Weekly Issues in the News

By Geisa Balla


Nancy Silberkleit and Jon Goldwater, the co-CEOs of the company that publishes Archie comics, ended their dispute over control of the company through a settlement (which is being challenged by other family members) on Wednesday, June 6th. "Nancy Silberkleit and Jon Goldwater are no longer in an adversarial position, and they are beginning their working relationship anew," said Silberkeit's attorney. "She's thrilled to have settled this extremely upsetting matter." Goldwater is a son of one of the company's founders, while Silberkleit is another founder's daughter-in-law. They became co-CEOs in 2009. Goldwater sought to strip Silberkleit of her role at the company, claiming that she was an erratic troublemaker who sexually harassed employees, made bad business moves and once intimidated people in the office by parading a former football player. Silberkleit claimed that Goldwater was a chauvinist who demeaned her, kept her in the dark about the company's finances, and that he invented false allegations to seize control of the company. She claimed defamation and sought $100 million in damages. Silberkleit controls 50 percent of the company and Goldwater owns 25 percent. A trust set up by Goldwater's late half brother, Richard, owns the rest. Goldwater's three nieces Lisa, Taylor and Summer Goldwater, are the trust's beneficiaries.

Initially the nieces stood on the sidelines, assuming that their uncle was acting in their best interests. However, they decided to involve themselves this winter after suspecting that their uncle was misusing company assets, and trying to keep them unaware of it. The nieces filed papers in the litigation, saying that both CEOs' "hands are dirty." Supreme Court Justice Shirley Kornreich stated that the nieces were not in a legal position to weigh in on the settlement, but they could file a suit of their own. Attorneys for the three nieces said the they "will be pursuing the requisite steps to protect the interest of the trust and its beneficiaries."


The U.S. Attorney for the Southern District of New York filed a civil forfeiture lawsuit in the Southern District of New York on April 4th against Sotheby's, claiming that a 10th Century A.D. sandstone statute was illicitly removed from Cambodia. The U.S. is seeking right, title and interest in the statue. The complaint alleges that Sotheby's plans to sell the statue, despite warnings that looters had stolen the piece from its rightful place in the Prasat Chen Temple in Koh Kewr in northern Cambodia. The statute was torn from its place in the 1960s or 1970s, during civil unrest in Cambodia. It then fell into the hands of a private collector in Belgium, whose heirs reached an agreement to sell it on consignment to Sotheby's in March 2011. Cambodian officials notified Sotheby's that the statue had been looted, and the parties had been negotiating a settlement to the dispute for the last year. "The ... statue is imbued with great meaning for the people of Cambodia and, as we allege, it was looted from the country during a period of upheaval and unrest, and found its way to the United States," Manhattan U.S. Atty. Preet Bharara said in a statement released by his office. "With today's action, we are taking an important step toward reuniting this ancient artifact with its rightful owners." Sotheby's disputed the allegations, stating that the statute "was legally imported into the United States and all relevant facts were openly declared."

Lauryn Hill

Eight-time Grammy winner Lauryn Hill has been charged with failing to file income tax returns for several years with the Internal Revenue Service (IRS). The U.S. Attorney's Office in New Jersey said that Hill earned more than $1.6 million during 2005, 2006 and 2007, the three years that she failed to file returns. Her primary source of income is royalties from the music and film industries. She also owns and operates four corporations: Creations Music Inc., Boogie Tours Inc., L.H. Productions 2001 Inc., and Studio 22, Inc. Hill is scheduled to appear before a federal magistrate on June 29th. She faces a maximum penalty of a year in prison and $100,000 in each of the three charges against her.

Alexander Wang

On June 4th, Alexander Wang Inc. answered the class action complaint filed earlier this year, denying the allegations. The complaint was filed in March 2012 by two former employees of Alexander Wang Inc., and alleged that the company essentially ran a sweatshop in Chinatown in Manhattan, where it violated labor laws by failing to provide proper compensation, denied the workers bathroom breaks, and fired them when they complained about their work conditions. The answer claimed that Alexander Wang Inc. "has complied with all applicable wage and hour and leave laws, and there is no basis whatsoever for plaintiffs' frivolous and entirely unsupportable accusations." It further claimed that plaintiffs were "properly paid all wages owed ... provided with regular and multiple breaks during their work time ... [and] eligible for and provided with paid vacation, paid sick days, paid holidays, paid personal days, medical and dental insurance and other benefits."


The determination of Apple's motion to ban the sale of Samsung Electronics's Galaxy 10.1 tablets is delayed on procedural grounds. Apple filed a lawsuit against Samsung last year in the U.S. District Court, Northern District of California, alleging that Samsung "slavishly" copied the iPhone and iPad. Samsug denied the claims and countersued. Judge Lucy Koh denied Apple's motion to ban the sale of Samsung smartphones and the Galaxy 10.1 tablet. An appeals court told Judge Koh to reconsider her decision, and Apple promptly re-applied for the ban. On June 4th, Judge Koh denied Apple's motion on procedural grounds, stating that the appeals court must formally cede jurisdiction back to her before she could consider it. In a court filing last month Apple stated: "Each day that Samsung continues to sell its infringing Tab 10.1 causes additional harm to Apple through design dilution, lost sales, lost market share, and lost future sales of tag-along products." The parties attended court ordered mediation in May, which failed to produce a settlement.

Jerry Sandusky

Jury selection ended on Wednesday, June 6th, in the Jerry Sandusky child sex abuse trial. The jury consists of seven women and five men. Sandusky has been charged with 52 counts of molesting 10 boys over a 15-year period. He has pleaded not guilty and is facing more than 500 years in prison if convicted on all counts. Prosecutors allege that Sandusky met the boys through his charity Second Mile, and some of the assaults occurred at Penn State facilities. "The trial in this case will start on Monday morning. We anticipate that it will take at most three weeks and be done by the last day of June," Judge John Cleland said on Wednesday. Many of the jurors have close ties to Penn State: one is a professor there, one is an administrative assistant, another is a dance teacher and one is a 2007 graduate of the university. Sandusky appeared upbeat and animated during the jury selection. At one point he joked with reporters, saying: "What did you guys do to deserve me? How did you guys get stuck with this? Ay yi yi." ABC News reported that intimate love letters written by Sandusky to one of his accusers, Victim 4, will be read into testimony in trial. Victim 4 is expected to be the first witness to testify, and he is expected to show gifts Sandusky gave him during the alleged relationship.

Kevin Costner and Stephen Baldwin

Jury selection began this week in a federal lawsuit between Steven Baldwin and his business partner Spyridon C. Contogouris, and Kevin Costner. Baldwin claims that Costner cheated him out of his share of a multi-million dollar deal, under which British Petroleum bought 32 oil-and-water separation devices that were developed by a Costner-owned company. The deal was struck after the Macondo well blew out in April 2010, spewing more than four million barrels of crude into the Gulf of Mexico, in the largest accidental oil spill in history. Baldwin and Contogouris claim they were not told about the deal with BP before they agreed to sell their shares in a company that had been set up to market Costner's devices. The defendants allege that they were duped out of a portion of an $18 million deposit from BP for the devices.,_Baldwin_go_to_trial_over_business_deal/

Social Media

The New York City Bar Association stated in an ethics opinion released Monday, June 4th that lawyers can conduct research on social media websites, so long as they do not communicate with potential or sitting jurors. "Communication, in this context, should be understood broadly, and includes not only sending a specific message, but also any notification to the person being researched that they have been the subject of an attorney's research efforts," according to the opinion. "Even if the attorney does not intend for or know that a communication will occur, the resulting inadvertent communication may still violate the rule." The opinion cautions against the risk that may arise if research is done on a social media service that alerts users when another individual has viewed their profiles. "The central question an attorney must answer before engaging in jury research using a particular site or service is whether her actions will cause the juror to learn of the research," the opinion says. The definition of "communication" was intentionally left open-ended to account for the evolution of social media sites. "It is the duty of the attorney to understand the functionality and privacy settings of any service she wishes to utilize for research, and to be aware of any changes in the platforms' settings or policies to ensure that no communication is received by a juror or venire member."

June 15, 2012

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."

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."

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.

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.

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.

June 22, 2012

Weekly Issues in the News

By Geisa Balla

Louis Vuitton v. Warner Brothers

S.D.N.Y. Judge Andrew Carter dismissed Louis Vuitton's suit against Warner Brothers for the use of Vuitton's mark in the movie "The Hangover Part II." In the movie, Zach Galifianakis' character Alan arrives at the airport with a baggage cart full of luggage bearing the Louis Vuitton toile mark, as well as a matching satchel. When Ed Helms' character tries to move Alan's satchel, Alan snaps, "Careful, that is a Louis Vuitton." (except he mispronounces Louis as Lewis.) Louis Vuitton took offense to the depiction in the movie because the satchel was a knockoff by Diophy, which sells Louis Vuitton fakes throughout the United States.

Vuitton filed the lawsuit against Warner Brothers, claiming that the movie diluted its mark and violated the Lanham Act by misleading customers. Judge Carter dismissed the lawsuit, holding that Warner Brothers was protected by the First Amendment. Carter relied on the 2nd Circuit Court of Appeals decision Rogers v. Grimaldi, which established the standard for weighing trademark claims in the context of artistic expression. Under Rogers v. Grimaldi, artistic works are protected under the First Amendment, unless there is a "particularly compelling likelihood" that consumers will be misled. Carter reasoned that Vuitton's two theories--that movie viewers would believe Alan's bag as genuine, or that they would think Vuitton had approved the appearance of the knockoff supplier's product--did not overcome the Rogers v. Grimaldi standard. "First, it is highly unlikely that an appreciable number of people watching the film would even notice that Alan's bag is a knock-off," he wrote. "Furthermore, Louis Vuitton's position assumes that viewers of the film would take seriously enough Alan's statements about designer handbags (even about those he does not correctly pronounce) that they would attribute his views to the company that produced the film. This assumption is hardly conceivable, and it does not cross the line into the realm of plausibility." Carter also emphasized the humor that Alan is supposed to convey, stating that his reference to his bag "comes across as funny because he mispronounces the French 'Louis' like the English 'Lewis,' and ironic because he cannot correctly pronounce the brand name of one of his expensive possessions, adding to the image of Alan as a socially inept and comically misinformed character."

FCC Ruling

The Supreme Court of the United States ruled on June 21, 2012 that the Federal Communications commission (FCC) cannot enforce its current policies against fleeting expletives and nudity on over-the-air programs, both live and scripted. The case stemmed from 2002 and 2003 awards shows on News Corp.'s Fox Television network, when singer Cher blurted out an expletive and Nicole Richie used two expletives. The FCC had said that the network violated its indecency rules. The case also involved a seven-second nudity shot on a 2003 "NYPD Blue" episode on Walt Disney Co.'s ABC network. Writing a unanimous decision, Justice Kennedy based the decision on the Constitutional Due Process requirement, saying that the broadcasters had to be given fair notice of the policy and the restrictions. "A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required," he wrote in the 18-page opinion. Under the FCC's policy from 2001 and amended in 2004, broadcasters could be fined for airing a single profanity blurted out on a live show or for brief nudity. The decision holds that the FCC's standards were vague as applied to the broadcasts at issue in the case, but did not decide the larger question of whether the indecency policy violated constitutional free-speech rights.,_nudity_cases/

Kevin Durant

Guitarist Mark Durante, known as "Durantula", filed a trademark infringement suit on June 20th against Oklahoma City Thunder star Kevin Durant and Nike. Durantula has performed under his stage name since the 1980s, and he trademarked his name in 2010. The lawsuit alleges that Durant, Nike and one of Durant's sponsors, the memorabilia company Panini America, are infringing on Mark Durante's trademark DURANTULA by using that nickname on items like basketballs and photographs and in shoe campaigns. The complaint alleges that Durante is a long-time Chicago musician. He released an album under the name Durantula and has maintained the website for more than 10 years. Durante has asserted rights to a "common law mark" on Durantula in connection with music, recordings, apparel, T-shirts and related merchandise, as well as a "registered mark" on music, ringtones, sound recordings and the like. Intellectual Property litigator Joseph Gioconda states that Durante's lawsuit could be problematic, as it might be difficult to show that consumers will confuse a 23-year old basketball player with a middle-aged rocker. Gioconda believes that Durante will most likely rely on the theory of reverse confusion, claiming that people will believe that Durante ripped off Durant.

Dinosaur Skeleton from Mongolia

Manhattan U.S. Attorney Preet Bharara filed a lawsuit on June 18th, seeking to return to Mongolia a 70 million year old skeleton of a Tyrannosaurus Bataar, a smaller cousin of the Tyrannosaurus Rex. The dinosaur skeleton was discovered in 1946 during a joint Soviet-Mongolian expedition to the Gobi Desert. Since 1924, Mongolia has enacted laws declaring dinosaur fossils to be the property of the government, and criminalized their export. The lawsuit seeks the forfeiture of the skeleton from Heritage Auctions of Texas, the auction company that sold it for more than $1 million last month to an undisclosed buyer. In a statement Bharara said: "A piece of the country's natural history was stolen with it, and we look forward to returning it to its rightful place." Last month the Heritage Auctions of Texas agreed to help the Mongolian government investigate the ownership of the skeleton, and a state district judge in Dallas granted the Mongolian government a temporary restraining order to prevent the transfer of ownership until it was determined whether it was illegally obtained from Mongolia.

A copyright infringement lawsuit was filed on June 13, 2012 against Jay-Z in Los Angeles. Patrick White alleges that Jay-Z's portions of his 2010 book "Decoded," which is a collection of lyrics and the story behind their meanings, were lifted from White's writing. "In 2009, my personal computer was compromised, resulting in my personal work to be used in Jay-Z's book 'Decoded' which was released in 2010," White alleged in the handwritten lawsuit. "The book contains various expressions/colors/phrases which correlates to my work," he continued. "After contacting or attempting to contact the co-author, I got no reply." Author Dream Hampton and Random House Publishing are also listed as defendants in the lawsuit.

June 29, 2012

Weekly Issues in the News

By Geisa Balla

Frances Williams Preston

Frances Williams Preston, the former president of BMI, passed away on June 13th in Nashville of congestive heart failure at the age of 83. She was surrounded by her family.

In 1958, Preston was a Nashville radio station receptionist when BMI hired her to open a southern regional office. By the time she retired as president and chief executive of BMI in 2004, she had been long known as one of the most successful and influential executives in the music industry and a key figure in Nashville's growth as a major music center. Preston fought passionately for the rights of songwriters, composers and music publishers. "She truly felt that writers were not properly compensated, and she spent her life fighting for them," said Del Bryant, who succeeded Preston as BMI's president and chief executive. "She was a well-known face on the Hill [in Washington, D.C.] and had a tremendous relationship with some of the leading legislators of her time." Preston nurtured the career of countless songwriters and mentored them throughout the years. "There's still people that I keep in touch with that I signed in the early days, like Willie Nelson, Dolly Parton and Kris Kristofferson," she told the Associated Press in 2002. "That was my favorite part of the business. But you've got to get into the business of the business in order to help them."

Preston is survived by her three sons, William Kirk Preston, David J. Preston and Donald L. Preston; six grandchildren; and a great-granddaughter.

South Park

The U.S. Court of Appeals for the Seventh Circuit upheld a lower court decision that the fair use defense applied to a 2008 South Park Episode that lampooned a 2007 viral video "What What (In The Butt.) (WWITB) Brownmark Films, owners of the original WWITB video, claimed that the fair use did not apply. The lower could had held that South Park's version, featuring the character Butters, made transformative use of the original by somehow doing "the seemingly impossible -- making the 'WWITB' video even more absurd by replacing the African-American male singer with a naive and innocent 9-year-old boy dressed in adorable outfits." The Seventh Circuit explained that Brownmark Films had waived its fair use argument by not addressing the argument in the Rule 12(b)(6) stage. Rather, it had only argued that the matter should go to trial. However, "even if Brownmark were not barred from offering argument that SPDS did not engage in fair use, we agree with the district court that this is an obvious case of fair use. When a defendant raises a fair use defense claiming his or her work is a parody, a court can often decide the merits of the claim without discovery or a trial. When the two works in this case are viewed side-by-side, the South Park episode is clearly a parody of the original WWITB video, providing commentary on the ridiculousness of the original video and the viral nature of certain YouTube videos." The Court further stated: "Despite Brownmark's assertions to the contrary, the only two pieces of evidence needed to decide the question of fair use in this case are the original version of WWITB and the episode at issue."

The Expendables

Judge Jed Rakoff has dismissed a copyright infringement suit filed against Sylvester Stallone that had alleged that he copied the film The Expendables. Marcus Webb filed a lawsuit against Sylvester Stallone in October 2011, claiming that the 2010 film The Expendables was "strikingly similar" to his own copyrighted work. Webb's script was titled The Cordoba Caper, about "a team of elite, highly-trained mercenaries." Webb claimed that Stallone and co-writer David Callaham may have had access to it, as the script was shopped around Hollywood for several years. Stallone denied the allegations. In a motion to dismiss, the defense argued that Webb wrote his script after Callaham had already written three drafts of the screenplay, and that Webb had no information that Stallone or Callahan had ever seen The Cordoba Caper. The defense also argued that the alleged similarities were merely ideas, and that the overall concept and the feel of the two works were vastly different. Judge Rakoff agreed with the defense, issuing a short order on Monday, June 25th, granting the defendants' motion "in all respects," and promising a fuller written opinion soon.

The Black Keys v. Pizza Hut, Home Depot

The Black Keys filed copyright infringement lawsuits against Pizza Hut and the Home Depot on June 21st, claiming that the former misused the song "Gold on the Ceiling" in a recent advertisement and that the latter did not have permission to use elements of the song "Lonely Boy" in an ad promoting power tools. Both songs are from the band's "El Camino" album, released in 2011. The suits claim that both companies were given written notices that the ads misused The Black Keys' music. Neither company received permission to use musical elements from the songs. The advertisements do not include any vocals. The lawsuits seek unspecified damages of more than $75,000 each, and orders preventing the continued use of the songs in the commercials.


On June 22nd, U.S. District Court Judge Gary Feess denied CBS' request for a temporary restraining order against ABC's new reality series "The Glass House". CBS filed the suit in May, claiming that "The Glass House" uses proprietary information from "Big Brother." ABC denied the allegations, arguing that the similarities between the shows--a group of strangers living in a house and competing against each other--are boilerplate elements of most reality TV shows. The judge sided with ABC, holding that, "The Court finds that CBS has failed to demonstrate an entitlement to the preliminary relief sought." The court also stated that "while it cannot say that CBS will not prevail at trial, it has concluded that success on the merits is unlikely. . . The evidence indicates to the Court that "Big Brother's" alleged trade secrets were either already known to the business ... were readily capable of being 'reverse-engineering' based on information disclosed in the public domain ...or were not adequately protected as trade secrets." The judge also noted that "CBS has failed to persuade the Court that it will suffer immediate and irreparable injury if 'Glass House' airs."

"We're pleased the Court agreed with ABC's arguments that 'The Glass House' is a very different show and people working in the reality television industry should not be prevented from bringing their skills to a new employer," stated an ABC release following Judge Fees' decision Friday. "We are thrilled viewers will now get a chance to continue to enjoy and participate in ABC's 'The Glass House.'" In its statement, CBS said: "Win, lose or draw on the TRO, we fully intend to proceed with our claims against Disney/ABC for copyright infringement and misappropriation of trade secrets over 'The Glass House,' which may still warrant more injunction proceedings depending on the content of each episode.",0,1369278.story

July 6, 2012

Weekly Issues in the News

By Geisa Balla


MGM, the film studio behind Martin Scorcese's 1980 film "Raging Bull," filed a lawsuit against former boxer Jake LaMotta and the producers of "Raging Bull II" on July 3, 2012 in the California Superior Court. MGM alleges that LaMotta violated a 1976 agreement giving MGM the right of first refusal on his 1986 memoir "Raging Bull II," upon which the new film is based, or any other "owner-written sequel." The complaint also alleges that Raging Bull II Productions is publicly associating the sequel with the original, which was directed by Martin Scorcese and starred Robert DeNiro, neither of whom has any involvement with the new film. MGM is seeking to halt production of the new film, as well as compensatory and other damages. The complaint alleges that if the new film is allowed to go forward, it will "irreparably tarnish the value of the original."

Shakespeare Theater Company

Shakespeare Theater Company filed a lawsuit on June 12, 2012 against one of its landlords, the Lansburgh Theater in Washington DC, in attempt to fight its threatened eviction from its home of 20 years. The Lansburgh Theater, a nonprofit that serves as the landlord for one of the sites for the Shakespeare Theater Company, told Shakespeare Theater last year that its annual rent would increase from $70,000 to $480,000. When Shakespeare Theater refused to pay the increase, Lansburgh demanded that it vacate the site and that its managing director resign from the Lansburgh board. The Shakespeare Theater Company has now filed suit against the Lansburgh Theater to stop the eviction, claiming that its actions are contrary to its mandate to support the company.

E.U. Rejects ACTA

The European Union rejected an international treaty targeting digital piracy on July 4, 2012. The Anti-Counterfeiting Trade Agreement, or ACTA, had been signed by the United States, Japan, Canada, Australia, South Korea, and a number of individual EU members. Opponents of the treaty rallied tens of thousands of protesters into the streets of European capitals last winter, saying that approval of the treaty would lead to the proliferation of anti-piracy measures. Opponents also argued that even if other countries would ratify the treaty, it would have little authority since the EU represented 27 of the 39 countries that participated in the talks. The vote was seen as a victory by internet freedom groups. After the vote, some members of the Parliament stood up in the chamber, holding up signs reading: "Hello democracy, goodbye ACTA." The media industry however, bemoaned the vote, saying that protesters had twisted the debate to make the treaty seem more menacing than it actually is. The Parliament "has given in to pressure from anti-copyright groups despite calls from thousands of companies and workers in manufacturing and creative sectors who have called for ACTA to be signed in order that their rights as creators be protected," said Angela Mills Wade, executive director of the European Publishers Council.

Michael Kors

Michael Kors won a lawsuit against a number of websites selling counterfeit goods under the brand's name. Kors first filed suit in the Southern District of New York in November 2011 against 35 infringing websites, which were selling inauthentic bags, jewelry, and other accessories bearing Michael Kors trademarks. Judge Shira Scheindlin ruled in Kors' favor, holding that the counterfeit products caused consumer confusion as they were sold at price points similar to authentic Michael Kors products. Kors was awarded $2.4 million in damages, which will likely be collected from defendants' PayPal accounts.

U.S. Copyright Office Statement of Policy

The U.S. Copyright Office released a Statement of Policy on June 18, 2012, making it clear that "functional physical movements such as sports movements, exercises, and other ordinary motor activities alone" are not works of authorship protected under U.S. copyright law. The statement was released to clarify the practice of the Office relating to examination of claims of compilations involving uncopyrightable subject matter, and to clarify the Office's policy with respect to registration of choreographic works. The Copyright Office stated that in order for a compilation to be protected by copyright, its content must fall within one or more of the categories of authorship listed in Section 102 of the Copyright Act. The compilation of any other materials that do not fall within one or more of the specified categories of Section 102 is not protected by copyright law. The Copyright Office concluded that a compilation of exercise or yoga poses cannot be protected by copyright since it is not one of the eight categories, and the underlying material constitutes a "functional system or process."

Additionally, the Statement states that "although a choreographic work, such as a ballet or abstract modern dance" incorporate "simple routines, social dances, or even exercise routines as elements of the overall work, the mere selection and arrangement of physical movements does not in itself support a claim of choreographic authorship." Rather, it is explained that such a work must contain "at least a minimum amount of original choreographic authorship," which for copyright purposes must be a "composition and arrangement of a related series of dance movements and patterns organized into an integrated, coherent, and expressive [compositional] whole."

July 13, 2012

Weekly Issues in the News

By Geisa Balla

Aereo Inc.

Judge Alison Nathan of the Southern District denied a request for preliminary injunction by major U.S. broadcasters to stop Aereo Inc. from rebroadcasting some of its programming over the Internet.

Aereo is an online television venture, available only in New York City for $12 per month. Walt Disney Co's ABC, CBS Corp, Comcast Corp's NBC Universal and Telemundo, News Corp's Fox, Univision Communications Inc. and the Public Broadcasting Service had filed lawsuits accusing Aereo of copyright violations. The broadcasters sought to stop Aereo from streaming programs to phones, tablet computers and other devices, arguing that they would lose their right to retransmission fees from cable and other companies that rebroadcast their programming, and would lose significant advertising revenue. Judge Nathan held that while the broadcasters demonstrated that they faced irreparable financial damage if the venture were allowed to continue, Aereo also showed it would face severe harm if the requested preliminary injunction was granted. Judge Nathan agreed that Aereo would damage the broadcasters' ability to negotiate advertising and retransmission agreements, given that the service could artificially lower Nielsen viewership ratings. However Nathan also said Aereo, in addition to facing the risk of closure, could lose employees, the ability to attract new investors, customer goodwill, and its "substantial investments" in the service. The judge stated: "First and foremost, the evidence establishes that an injunction may quickly mean the end of Aereo as a business," and that "the balance of hardships certainly does not tip decidedly in favor of (the broadcasters)." The broadcasters said they would appeal, calling the decision "a loss for the entire creative community."

Kate Spade

The Vera Company, which controls the work of the late artist Vera Neumann, filed a copyright infringement lawsuit against Kate Spade in the Southern District. The lawsuit alleges that Kate Spade copied Neumann's 1979 work "Poppy Field" in the Kate Spade line of floral-print dresses and cell phone cases released in 2011. The complaint alleges that Spade publicly acknowledged "that among the items and products that have inspired her designs are the silk-screened scarves of [Neumann]." A Spade representative said the disputed design was "in fact created from a 'vintage' design," which was "obviously the plaintiff's."

Copyright Royalty Board

The U.S. Court of Appeals for the District of Columbia Circuit held on July 6th that the Copyright Royalty Board, which sets the rates broadcasters have to pay for copyright licenses, runs afoul of the Constitution. The U.S. Court of Appeals for the District of Columbia Circuit found that the three-judge board, appointed by the Librarian of Congress, violates the Appointments Clause of the Constitution, which requires officers with significant authority to be appointed by the President with Senate confirmation. The basis for the ruling was that "the Judges' exercise of significant ratemaking authority, without any effective means of control by a superior (such as unrestricted removability), qualifies them as "principal" officers who must be appointed by the President with Senate confirmation." The court found that it could fix the constitutional problem by giving the Librarian of Congress greater ability to fire the judges on board. "To remedy the violation, we follow the Supreme Court's approach in Free Enterprise Fund v. Public Company Accounting Oversight Bd., 130 S. Ct. 3138 (2010), by invalidating and severing the restrictions on the Librarian of Congress's ability to remove the CRJs. With such removal power in the Librarian's hands, we are confident that the Judges are 'inferior' rather than 'principal' officers, and that no constitutional problem remains."$file/11-1083-1382307.pdf

Lance Armstrong v. USADA

Lance Armstrong filed a 111-page complaint against the U.S. Anti-Doping Agency (USADA) on July 9th, after the USADA formally charged him with doping at the end of June. If found guilty, Armstrong could be stripped of all seven of his Tour de France titles, forced to turn over all the money he won from 1999-2005, and banned from Olympic sports for life. Armstrong's lawsuit alleged that USADA rules violated athletes' constitutional right to a fair trial, and that the agency does not have jurisdiction in his case. It also accused USADA's chief executive, Travis Tygart, of waging a personal vendetta against Armstrong. The lawsuit sought an injunction barring USADA from pursuing its case or issuing any sanctions against Armstrong. In the lawsuit, Armstrong called the USADA a "kangaroo court," stating that his Constitutional and common law due process rights were at risk. The complaint alleged that the USADA believed it "is above the United States Constitution, above the law, above court review, free from supervision from any person or organization, and even above its own rules."
Hours after the lawsuit was filed, it was dismissed by Judge Sam Sparks, who gave Armstrong leave to refile. Judge Sparks called the complaint a "lengthy and bitter polemic" against the defendants, and stated that the court "is not inclined to indulge Armstrong's desire for publicity, self-aggrandizement, or vilification of Defendants, by sifting through eighty most unnecessary pages in search of the few kernels of factual material relevant to his claims." In a footnote, Judge Sparks noted: "Contrary to Armstrong's apparent belief, pleadings filed in the United States District Courts are not press releases, internet blogs, or pieces of investigative journalism. All parties, and their lawyers, are expected to comply with the rules of this court, and face potential sanctions if they do not."

Armstrong's attorneys refiled a much shorter, 25-page complaint on July 10th.

July 20, 2012

Weekly Issues in the News

By Geisa Balla

Three's Company

DLT Entertainment, the copyright owners of the 1970s sitcom "Three's Company", sent a cease-and-desist letter to producers of the off-Broadway play "3C," claiming that the play infringed on the "Three's Company" copyright by borrowing too many elements of the TV series, including the main premise of the show of a man pretending to be gay to live with two female roommates. The issue is whether "3C" is enough of a parody of "Three's Company" to be protected under the fair use doctrine. "3C"'s producer and playwright are concerned with the financial ability to fight the legal threats. David Adjmi, the playwright, initially agreed to the demands that he turn down any future productions of "3C" or any publication or circulation of the script, allowing his play to die after its Off Broadway run at Rattlestick Playwrights Theater, which ended on Saturday. "I can't afford a fancy lawyer," Mr. Adjmi said, "and I was getting all sorts of conflicting advice from my agents at CAA and my producers, some of whom doubted that the play would meet the legal standards of parody." However, Mr. Adjmi has not signed any document, and follow playwrights are urging him to fight. Mr. Adjmi said his intent was to write "a deep critique of the ideologies and assumptions behind the television series, leading to a collective nervous breakdown for the characters." DLT Entertainment is very protective of the overall brand of "Three's Company", as the show has earned substantial revenues from syndication on TV Land and home video. Donald Taffner Jr., president of DLT Entertainment explained: "We're up for renewal soon with TV Land, and we're playing around with the idea of doing a theatrical version of 'Three's Company' ourselves, so we don't want anything out there that might cause harm. And we think '3C' borrows far too many elements to make a fair-use parody argument."

Macy's v. Martha Stewart

Macy's won a preliminary injunction against Martha Stewart on Friday, July 13, 2012, temporarily blocking plans by Martha Stewart Living to sell certain branded products at J.C. Penney stores. In December 2011, J.C. Penney announced plans to sell Martha Stewart-branded goods starting in 2013. Macy's filed a lawsuit against Martha Stewart Living, claiming that it had exclusive rights to sell certain Martha Stewart products, including soft furnishings, dinnerware and cookware. Macy's claims that Martha Stewart Living granted Macy's the exclusive rights to manufacture and sell Martha Stewart branded product in a 2006 contract that runs until 2018. New York State Supreme Court Justice Jeffrey Oing issued the preliminary injunction requested by Macy's, saying that Macy's had shown likelihood of ultimate success in its lawsuit. Justice Oing said that putting Martha Stewart products at J.C. Penney stores would deprive Macy's of its competitive edge. Martha Stewart Living plans to comply with the restrictions, but still will proceed with its deal with J.C. Penney early next year. "We continue to believe that we have not breached our agreement" with Macy's, the company said.

David Cassidy

A judge has ruled that the dispute between David Cassidy and Sony Pictures Television over Partridge Family will be heard by an arbitrator, and not a jury. Last year, the actor sued Sony and claimed that despite reports that ABC's top-rated series in the 1970s had generated nearly $500 million from games, magazines, posters and more, he was only paid a "paltry sum." Cassidy further alleged that his contract entitled him to 15 percent of net proceeds from merchandise and 7.5 percent of the net proceeds derived from the exhibition and exploitation of the underlying property rights of the show. Lost Angeles Superior Court Judge Joseph Kalin has decided to honor the arbitration provision of the actor's 1971 contract. Judge Kalin held that "There is no support for (Cassidy's) argument that he was fraudulently induced to enter into the arbitration agreement." Cassidy is appealing, as he would rather present his case before a jury.


VMG Salsoul recently filed a copyright infringement against Madonna, alleging that Madonna borrowed horn and string samples from a 1977 dance song by Salsoul Orchestra titled "Chicago Bus Stop (Ooh, I Love It)". The allegedly infringing song is "Vogue," released in 1990. VMG argues that it became aware of the samples only after they were detected by new technology that allows listeners to isolate and observe individual sounds within a song. The company seeks unspecified damages.


Canada's Supreme Court ruled on July 12th that no performance royalties need to be paid to songwriters and song publishers for downloaded music. The court also said that previews of songs in online stores such as Apple Inc's iTunes are not an infringement of copyright laws and do not merit the payment of royalties, but that the royalties from streaming music are still valid. The court's distinction between downloads and streaming music is similar to the difference between buying a CD, where the recording company collects the royalties, and listening to a song on the radio, where the station pays the royalties to the artist via the music publisher or a copyright collective. The ruling was seen as a blow for music composers and the organizations that disburse royalties on their behalf.

July 27, 2012

Weekly Issues In The News

By Geisa Balla


Coach Inc. was awarded a permanent injunction and $44 million verdict against Linda and Courtney Allen of Syosset, New York, who operated websites and, advertising and selling counterfeit Coach handbags. Southern District of New York Judge Colleen McMahon ruled that the Allens had "willfully" violated Coach's trademarks on 11 types of goods for a total of 22 separate infringements. The websites maintained by the Allens state that the items are "not original" and are "in no way affiliated with the authentic manufacturers." Linda Allen was similarly sued by Chanel in 2007 for trademark counterfeiting and infringement. "Linda Allen plainly requires substantial deterrence because she has not been deterred by prior judgments," Judge McMahon told the court. "She persists in her contumacious behavior. This award may be crippling, but it is plainly needed to prevent Allen from going back once again into the business of counterfeiting." Nancy Axilrod, Coach's deputy general counsel, stated that Coach was exceedingly pleased with the ruling, and added: "The decision in Coach v. Linda Allen, et al. should serve as a warning to defendants in all pending Coach lawsuits that courts consider counterfeiting a serious issue and are prepared to order defendants to pay large sums of money. This decision should also serve as notice to all who traffic in counterfeit goods that Coach will vigorously pursue you, and will win."

Modern Family

The cast of the award-winning TV show "Modern Family" filed suit against the show's production company, 20th Century Fox Television, on July 24, 2012 for violating their work contracts under California law. The lawsuit is largely seen as a negotiation tactic for higher pay. The show's stars Sofia Vergara, Eric Stonestreet, Jesse Tyler Ferguson, Julie Bowen and Ty Burrell filed the lawsuit in Los Angeles in a legal move to void their current contracts. Ed O'Neill later joined the lawsuit. The lawsuit alleged: "Modern Family has been a breakout critical and financial success. That success, however, has been built upon a collection of illegal contracts." The complaint said the current contracts for Ferguson, Bowen, Burrell and Stonestreet violated a California law that limits personal service contracts to no longer than seven years. After starting in January 2009, most of actors' deals were set to run until June 2016, making them illegal, the lawsuit said. One source says that the actors were offered $150,000 per episode with a $50,000 bonus per episode for the upcoming fourth season and $200,000 for the fifth season. A spokesperson for 20th Century Fox had no comment on the lawsuit, but confirmed that a table read was canceled on Tuesday, when the cast was to return to production in preparation for the fourth season of the show.

Lady Gaga

MGA Entertainment Inc, the maker of Bratz Dolls, filed a lawsuit against Lady Gaga and her management company in New York Supreme Court alleging breach of contract for failing to approve a line of dolls in the singer's image. The complaint alleges that it agreed to produce dolls in Lady Gaga's image in December 2011 at the "request and insistence" of Bravado International Group, a merchandising company that works with Lady Gaga. MGA claims that it paid Bravado $1 million in advance for the doll production. In April Bravado allegedly informed MGA that Lady Gaga wanted to delay production of the dolls until her new album is released in 2013. MGA says the defendants have continued to withhold final approval in order to delay marketing the dolls until next year and instead sell a licensed Lady Gaga perfume called "Fame." "Defendants' conduct is egregious, in bad faith and is pretextual, especially in light of the fact that MGA has, among other things, paid Bravado a $1,000,000 advance, agreed to an excessively generous royalty rate, invested millions in the preproduction of the Lady Gaga dolls and put its reputation and goodwill on the line in order to secure distributors and retail shelf space," MGA Entertainment said in the complaint.


Gucci Group filed a lawsuit against the great-grandson of Gucci's original founder, Guccio Gucci and his brother Alessandro, for using the name "Guccio Gucci" when marketing their own handbags and accessories firm ToBeG Srl. Gucci's original founder was also named Guccio Gucci. The court has found Guccio in the wrong, ruling that the name usage "constitutes an act of unfair competition to Gucci's detriment because the advertising materials of the defendant caused confusion with Gucci's products and business activities and took unfair advantage of the qualities and reputation of Gucci's products." In the past, Gucci Group has successfully sued family members Jennifer Gucci, Gemma Gucci, Cosimo Gucci, and Elisabetta Gucci for all trying to start companies using their own names.

August 10, 2012

Weekly Issues in the News

By Geisa Balla

Competitive Cheerleading

The Second Circuit Court of Appeals held on August 7, 2012 that competitive cheerleading does not qualify as a sport under Title IX. The case was brought by members of Quinnipiac University's women's volleyball team, who alleged that the University's decision to replace volleyball with competitive cheerleading violated Title IX. The decision to categorize a varsity sport under Title IX is made by the U.S. Department of Education's Office of Civil Rights (OCR). In determining Title IX compliance, the OCR considers factors, such as whether the number of men and women on sports teams is proportional to the respective numbers enrolled at the school. In 2010, U.S. District Judge Stefan Underhill found that Quinnipiac had manipulated its team rosters by undercounting men and overcounting women to make it appear as if the genders were equally represented. Judge Underhill ruled that none of Quinnipiac's competitive cheerleaders counted as varsity athletes because the cheerleading was not recognized as a varsity sport by the OCR. On appeal, the Second Circuit Court held that Quinnipiac discriminated against women. While competitive cheerleading is "physically challenging" and requires competitors to possess "strength, agility and grace," Quinnipiac's program does not yet have the hallmarks of a varsity athletic sport, the court held. "(W)e do not foreclose the possibility that the activity, with better organization and defined rules, might someday warrant recognition as a varsity sport," U.S. Circuit Judge Reena Raggi wrote. "But, like the district court, we conclude that the record evidence shows that 'that time has not yet arrived.'",_federal_appeals_court_rules/

Gibson Guitar

Gibson Guitar Corp. will pay a $300,000 penalty under a criminal enforcement agreement with federal prosecutors, after it admitted to possible illegal purchases of ebony from Madagascar. The U.S. Justice Department began investigating the guitar maker in 2009 when it suspected that Gibson was importing banned or protected wood from Madagascar and India. "As a result of this investigation and criminal enforcement agreement, Gibson has acknowledged that it failed to act on information that the Madagascar ebony it was purchasing may have violated laws intended to limit over-harvesting and conserve valuable wood species from Madagascar, a country which has been severely impacted by deforestation," said U.S. Assistant Attorney General Ignacia Moreno of the Justice Department's Environment and Natural Resources Division. "Gibson has ceased acquisitions of wood species from Madagascar and recognizes its duty under the U.S. Lacey Act to guard against the acquisition of wood of illegal origin by verifying the circumstances of its harvest and export, which is good for American business and American consumers," Moreno said. The Lacey Act, originally passed to decrease trade in bird feathers, was amended in 2008 to require U.S. companies to make detailed disclosures about wood imports. In addition to the $300,000 penalty, Gibson will forfeit $261,844 worth of wood that was seized in the course of the investigation, and will pay $50,000 to the U.S. National Fish and Wildlife Foundation.

World Wrestling Entertainment Inc.

World Wrestling Entertainment Inc. finally settled a decade-old dispute over its former name WWF with the World Wide Fund for Nature. World Wide Fund for Nature works to save endangered species. The Switzerland-based World Wide Fund for Nature sued the WWE's predecessor company, World Wrestling Federation Entertainment, in 2000 in the United Kingdom. In May 2002, The World Wrestling Entertainment formally announced its WWE identity.


MGA has emerged victorious in its recent retrial against Mattel. Mattel sued MGA for copyright infringement in 2001 when MGA released the Bratz dolls. Mattel claimed that it owned the copyright to the doll as it was created by Carter Bryant, a former Mattel employee. At the initial trial in 2008, a jury awarded Mattel $100 million in damages, MGA was ordered to stop making and selling Bratz products, and to transfer to brand to Mattel. The U.S. Court of Appeals for the Ninth Circuit reversed the verdict and ordered a retrial. At the retrial, an eight-person jury unanimously rejected Mattel's copyright claims and absolved MGA of any wrongdoing in relation to stealing of trade secrets from Mattel. Instead, it found that Mattel was responsible for stealing trade secrets from MGA in relation to unreleased product information, and awarded MGA $88.5 million in compensation. Mattel was awarded only $10,000 on the claim that MGA and its chief executive had interfered with Mattel's contractual relations with Carter Bryant. Mattel lawyers are said to be seeking a retrial.

Sports Betting in New Jersey

U.S. college and professional sports leagues filed a lawsuit in the District Court of New Jersey on August 7, 2012, seeking to stop New Jersey from legalizing sports betting. The lawsuit claims that a law signed in January to allow sports betting at the state's racetracks and at Atlantic City casinos violates a broad federal ban on wagering on sports events. The law, signed by Governor Chris Christie, is expected to be fully implemented this fall. Once it is, New Jersey racetracks and casinos will be allowed to apply for licenses and open gambling operations for amateur and professional sports. Betting on college events taking place in New Jersey, or involving a New Jersey college team will still be prohibited. The lawsuit claims that allowing New Jersey to open sports gambling would "irreparably harm amateur and professional sports by fostering suspicion that individual plays and final scores of games may have been influenced by factors other than honest athletic competition." The lawsuit also said the New Jersey law was precluded by the Professional and Amateur Sports Protection Act, passed by Congress in 1992 to impose a broad ban on sports gambling.,_pro_leagues_sue_to_stop_New_Jersey_sports_betting/

The New Yorker

On August 9th, U.S. District Judge Paul Oetken dismissed most of a defamation claim brought by a Canadian art expert over a 2010 New Yorker magazine article. Peter Paul Biro, an art expert, claimed that the article defamed him. He brought defamation and injurious falsehood claims, challenging roughly two dozen passages of an article written by New Yorker staff writer David Grann. The article described Biro as a self-styled "forensic art expert" who claimed to have pioneered a new way to authenticate paintings. The article expressed skepticism about Biro's claims, discussed several lawsuits filed against him, and raised questions about Biro's business motives. Biro said his reputation was destroyed by the article, and is seeking up to $2 million in damages. "The article as a whole does not make express accusations against Biro or suggest concrete conclusions about whether or not he is a fraud," Oetken wrote. "Rather it lays out evidence that may raise questions, and allows the reader to make up his or her own mind." However, the court allowed Biro to go forward with a handful of defamation claims. The New Yorker said in a statement: "We are gratified that Judge Oetken has already dismissed the vast bulk of Mr. Biro's claims, and we are confident that we will prevail."

August 26, 2012

Weekly Issues in the News

By Geisa Balla

Federal Trade Commission

On August 23rd the Federal Trade Commission ("FTC") won a $478 million judgment against the marketers of a series of get-rich-quick real estate infomercials. The FTC filed the lawsuit in June 2009 against the marketers of the three "systems" for making money quick, including "John Beck's Free & Clear Real Estate System," which promised to teach consumers how to buy homes for pennies on the dollar during government sales. The FTC claimed that those behind the system made false and unsubstantiated claims about how much money consumers could make, and nearly all those who bought the products at $39.95 actually lost money. U.S. District Judge Jacqueline Nguyen in Los Angeles also imposed a lifetime ban from infomercial production and telemarketing against three defendants. An attorney for two of the defendants, Douglas Gravink and Gary Hewitt, stated that they would likely appeal the order to the extent it imposes a lifetime ban. Jeffrey Klurfeld, director of the western region of the FTC, said in a statement: "This huge judgment serves notice to anyone thinking of using phony get-rich-quick schemes to defraud customers."$478_mln_judgment_against_infomercial_scammers/

Lance Armstrong

U.S. District Judge Sam Sparks has dismissed Lance Armstrong's lawsuit against the U.S. Anti-Doping Agency ("USADA"). Armstrong's suit attempted to block a probe into whether Armstrong cheated by using performance-enhancing drugs. The Court dismissed the initial complaint in July 2012, calling the lawsuit a "lengthy and bitter polemic." Armstrong filed an amended complaint, which was dismissed on August 20, 2012 without prejudice. USADA chief executive Travis Tygart said in a statement that the agency was pleased with the ruling, and that the agency had "protected the rights of athletes for over a decade." The USADA formally charged Armstrong in June 2012 with doping and taking part in a conspiracy with members of his championship teams. In a letter to Armstrong which was published in the Washington Post, the agency said that it had blood samples from 2009 and 2010 that are "fully consistent" with doping.
Following the dismissal of his lawsuit, Armstrong announced on August 23rd that he would no longer fight the doping charges. USADA responded immediately, stating that it would strip Armstrong of his seven Tour de France titles. USADA did in fact erase his titles on Friday, August 24th, and issued a lifetime ban for Armstrong.


CBS has dropped its lawsuit against ABC over the alleged copying of its long-running reality TV series "Big Brother." CBS initially filed its suit against ABC in May in the U.S. District Court, Central District of California. The lawsuit claimed that ABC copied several elements of "Big Brother" when it created "Glass House." "Glass House" also employed 19 former producers and staff of "Big Brother." In the week ending Aug. 12th, "The Glass House" ranked 87th among broadcast TV shows by number of viewers, with an audience of 1.59 million, according to Nielsen. In a statement CBS said "Viewers have spoken and delivered the ultimate form of justice against 'The Glass House."" CBS voluntarily dismissed the case, and it will arbitrate its contract and trade secrets claims against former "Big Brother" producers accused of violating confidentiality agreements.


Imane Boudlal, a former Disneyland restaurant employee, filed a lawsuit against Walt Disney Co. on August 13th, alleging that she was fired because she wanted to wear a Muslim head scarf at work. The former employee worked as a hostess at the Storytellers Café inside Disney's Grand California Hotel & Spa at Disneyland in Anaheim, California. She alleges that two years into the job she asked permission to wear a hijab while at work. She said she offered to wear a scarf that matched the colors of her uniform or featured a Disney logo. She alleges that her managers denied her request, saying it would violate the company's policy for how employees "look" while on the job. Boudlal said she was given the choice of working in a back area, away from customers, or wearing a fedora-style hat on top of her head scarf. When Boudlal refused, she was fired, the lawsuit states. Boudlal also claims she was subject to anti-Arab and anti-Muslim slurs, including being called "terrorist" and "camel" by co-workers and supervisors. "Disneyland calls itself the happiest place on earth, but I faced harassment as soon as I started working there," Boudlal said in a statement released by the American Civil Liberties Union of Southern California. "It only got worse when I decided to wear a hijab." Disney claims it offered Boudlal several options for a costume that would accommodate her religious beliefs, as well as four different jobs where she could wear her own hijab. "Walt Disney Parks and Resorts has a history of accommodating religious requests from cast members of all faiths," Disneyland Resort spokeswoman Suzi Brown said in a statement. "Unfortunately, (Boudlal) has rejected all of our efforts and has since refused to come to work," Brown said. Boudlal is seeking punitive damages and an order that Disney may not prohibit employees from wearing hijabs.,_says_company_forbids_Muslim_head_scarf/


The National Football League ("NFL") filed a lawsuit in Los Angeles Superior Court on August 15th against nearly three dozen insurance companies, seeking to force them to defend it against mounting brain injury claims by former players and their families. The suit names virtually every insurer in the country, as all the firms provided coverage for the NFL at some point between 1960 and the date of the lawsuit. The NFL claimed that it was a defendant in 143 bodily or personal injury lawsuits, and its insurers were obligated to defend the NFL under its general liability policies. "As a direct and proximate result of said insurers' breach of their contractual duty to defend the NFL and NFL Properties in and against the injury lawsuits, Plaintiffs have suffered damages in attorneys' fees and other costs incurred to defend against those suits," the NFL alleges in its complaint, adding that it was entitled to at least $5 million in damages.

The following week, on August 22nd, several subsidiaries of Travelers Companies Inc. filed suit against the NFL in New York Supreme Court, seeking to avoid paying to defend the NFL against the brain injury claims by former players and their families. Travelers claims that it is not required to pay any of the defense costs of the NFL. According to the Travelers lawsuit, the company provided liability coverage for NFL Properties, the NFL's merchandising arm, but not the NFL, and should not be required to pay for a joint defense. The insurer points out that a "master complaint" filed jointly by some 2,000 former players in June alleges 14 counts against the NFL, but only two against NFL Properties. "Last week, the NFL filed a comprehensive lawsuit in California against 32 insurers to ensure an orderly and comprehensive determination of its insurance rights and its carriers' obligations," NFL spokesman Greg Aiello said. "This new filing by Travelers does not alter our objectives."

Christian Laboutin

Customs agents in Los Angeles seized 20,457 pairs of fake Christian Laboutin shoes shipped from China. The counterfeit "red sole" shoes could have brought $18 million if they had reached consumers. The Director of Field Operations for U.S. Customs and Border Protection in Los Angeles stated that "CBP maintains an aggressive and proactive posture on intercepting shipments containing counterfeit and pirated items." Five shipments were seized at the Los Angeles/Long Beach seaport on July 27th and August 14th, the Customs and Border Police release said. "Often available on illegitimate websites and underground outlets, counterfeit high fashion commodities multiply the illegal profits of smugglers and traffickers...The public is misguided into believing they are buying an original product at a significant discount."

Lululemon v. Calvin Klein

Lululemon Athletica Inc., the Canadian producer of athletic apparel, filed a design patent infringement lawsuit against Calvin Klein and manufacturer G-III Apparel Group Ltd. on August 13th in the United States District Court, District of Delaware. Lululemon alleges that some of Calvin Klein's "Performance" pants infringe on Lululemon's "Astro Pant" patent. Lululemon has three design patents that cover the Astro style: one of the actual waistband, the other two for two specific styles of the pant. To succeed Lululemon would have to show that Calvin Klein's pants look like its patented pants. Calvin Klein could strike back with a "prior art" argument, claiming that other made similar pants before Lululemon. Calvin Klein has already removed both styles of pants named in the suit from its website.

Geisa Balla is an attorney practicing in New York, NY. She can be reached at

August 31, 2012

Weekly Issues in the News

By Geisa Balla

Spider-Man: Turn Off the Dark

A settlement has been reached between Julie Taymor, the former director of the Broadway musical "Spider-Man: Turn Off the Dark," and its producers. Ms. Taymor was fired from the Spider-Man production in March 2011 amid disputes over changes to the show's script and staging. In November Ms. Taymor filed a breach of contract suit against the musical's producers, alleging that they were continuing to profit from her creative contributions to the show without compensating her. The producers filed a countersuit in January saying that she violated the terms of her contract and "could not and would not do the jobs" she was hired to do, and thus was not entitled to further royalties. On Thursday, August 30, 2012, Judge Katherine B. Forrest of the Southern District of New York issued a notice that the parties had reached an agreement. The terms of the settlement were not disclosed.

Dish Network Corp

Fox Broadcasting Company has moved for a preliminary injunction against Dish Network Corp. over Dish's new digital feature that enables consumers to skip commercials. Lawsuits and countersuits were filed in May in the Central District of California between Dish and TV networks CBS Corp, News Corp's Fox, Comcast Corp's NBC Universal and Disney's ABC. The networks are suing over Dish's new DVR feature "AutoHop," which allows customers to press one button to automatically skip commercials. While this feature would please viewers, it would undermine advertisers, the networks' main source of revenue. Fox moved for preliminary injunction on August 22nd against Dish, claiming that it was likely to suffer irreparable harm while the companies litigate further. In addition, Fox claims that Dish's "PrimeTime Anytime" feature, a service that records all of the prime-time TV programs on ABC, CBS, NBC, and Fox with one click and then keeps them saved for up to eight days, violates Dish's contract related to accessing video programming on demand. A Dish Network spokesman said in an email on Sunday: "DISH believes consumers have the right to control their television-viewing experience. We're disappointed at Fox's continued fight against that right."

Victoria's Secret

Zephyrs, a New Jersey based hosiery supplier, filed a lawsuit against Victoria's Secret Stores Inc. and its parent company Limited Brands Inc., for breach of a 2001 agreement and deliberately selling cheaper "knockoffs" to customers. The complaint alleges that Victoria's Secret is misleading customers by selling less expensive legwear while deliberately using images of Zephyrs-designed legwear on packaging and in-store displays. Zephyrs is the former hosiery supplier for Victoria's Secret. Joseph Gioconda, counsel for Zephyrs, stated "Victoria's Secret changed the product in the packaging but didn't change anything else except Made in Canada on the back of the package. It used to say Made in Italy." Gioconda said Victoria's Secret has sold "at least $120 million worth of Zephyrs-designed product throughout all 50 states, through the Victoria's Secret chain of retail stores, the Victoria's Secret print catalogue and the popular Victoria's Secret Web site" since 2001. The suit seeks $15 million in damages, as well as corrective advertising and a recall of the allegedly knockoff products.

Macy's v. J.C. Penney

Macy's filed a lawsuit against J.C. Penney on August 16th, claiming that J.C. Penney is interfering with its contract with Martha Stewart. Macy's had filed a prior lawsuit against Martha Stewart Living, claiming that it had exclusive rights to sell certain Martha Stewart products, including soft furnishings, dinnerware and cookware, in attempt to block the sale of Martha Stewart products at J.C. Penney. In July 2012, Macy's won a preliminary injunction against Martha Stewart, temporarily blocking plans by Martha Stewart Living to sell certain branded products at J.C. Penney stores. Macy's new lawsuit against J.C. Penney seeks to stop J.C. Penney from taking any actions that would violate Macy's agreement with Martha Stewart, and to stop J. C. Penney from using product designs that Macy's argued were illegally obtained from Martha Stewart. In the lawsuit, Macy's contends that the agreement with Martha Stewart includes language that says that monetary damages will not be able to remedy any breach of the contract. "The fact that J. C. Penney is a less upscale retailer compared to Macy's compounds the injury," the lawsuit said. Martha Stewart has countered that the items to be sold at J. C. Penney do not fall under the exclusive categories granted to Macy's.

Macy's also moved for preliminary injunction against J.C. Penney, seeking to block J.C. Penney from proceeding with plans to sell a number of Martha Stewart Home good products in its stores. On August 30th, the court denied the injunction. The court was unconvinced that Macy's had shown a likelihood of success on its claim against J.C. Penney. Recognizing that in July the court issued an injunction against Martha Stewart, the court stated "It's one thing to enjoin [Martha Stewart] because that company is the centerpiece of these actions," he said. "It's another thing to enjoin a retail company from doing business. We live in a free-market society."

Marilyn Monroe

The Ninth Circuit Court of Appeals in California upheld the right of a Marilyn Monroe photo library to license images of the film star taken by a celebrity photographer who was one of her business partners. Milton H. Greene Archives Inc. has been in a long-running court battle with Anna Strasberg, widow of Monroe's acting coach, Lee Strasberg, and her licensing agent CMG Worldwide, which have controlled use of Monroe's image for years. Green was a fashion photographer who became friends with Monroe, and the two formed a production company. The legal battle over Greene's images hinged on where Monroe was living at the time of her death on August 5, 1962. In a decision on August 30th, a lower court decision was upheld that allowed Greene Archives to license its images of Monroe. The court ruled that Monroe resided in New York and therefore she did not have the posthumous right of publicity based on the state's law. "Because no such right exists under New York law, Monroe LLC did not inherit it ... and cannot enforce it against Milton Greene or others similarly situated," Judge Kim McClane Wardlaw wrote for the court.

Kim Kardashian v. Old Navy

Old Navy and Kim Kardashian have settled a lawsuit filed by Kardashian in 2011, which had alleged that an Old Navy television commercial violated her publicity right by using look-alike model Melissa Molinaro. "The lawsuit was resolved to mutual satisfaction of both parties, but beyond that it's the only statement we have," said Kardashian's attorney Gary Hecker. The settlement details were not released.

Geisa Balla is an attorney practicing in New York, NY. She can be reached at

September 7, 2012

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, 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

September 14, 2012

Weekly Issues in the News

By Geisa Balla

Velvet Underground v. Warhol

Southern District of New York Judge Alison Nathan has dismissed part of The Velvet Underground's lawsuit against the Andy Warhol Foundation for the Visual Arts (Warhol Foundation). The Velvet Underground alleged that the Warhol Foundation violated its rights to an iconic banana image used in one of The Velvet Underground's albums. The image at issue is a large banana and stylized Andy Warhol signature. The image was used in the band's first album "The Velvet Underground & Nico." The Velvet Underground had collaborated with Warhol on the design and cover art for the album. In January 2012, the Velvet Underground filed suit against the Warhol Foundation after reading about the latter's plans to license the banana image for cases, sleeves and bags for Apple's iPhone and iPad. Judge Nathan rejected Velvet Underground's claim that the Warhol Foundation had no copyright claim to the banana image. "Because the Warhol Foundation has broadly covenanted not to sue Velvet Underground," Nathan wrote, "there is no underlying cause of action sounding in copyright for Velvet Underground to head off." The copyright claim was dismissed without prejudice. The trademark claims of the lawsuit remains active.

Michael Jackson

Michael Jackson's former music promoter AEG Live is withdrawing its $17.5 million insurance claim in the 2009 death of the pop star. AEG had filed a claim against Lloyd's of London, seeking insurance payment for the losses incurred in up-front costs for Jackson's "This is It" shows that were to start in London in July 2009. Lloyd's later filed a lawsuit against AEG, seeking a declaration that the insurance company did not owe the money. Marvin Putnam, an attorney for AEG, said the company no longer needed the $17.5 million because it was reimbursed by Jackson's Estate. Attorneys involved told the judge that they expected AEG to be dropped from the case, though that has not yet officially occurred. Recently, leaked emails have shown that AEG executives were concerned about Jackson's stability prior to his tour. Attorneys on the case deny that AEG's decision was related to these released emails.

Tianna Madison

The parents of Olympic sprinter Tianna Madison have filed a defamation lawsuit against their daughter. Madison won a gold medal in the 4x100 meter relay this summer. Madison's parents, Robert and Jo Ann Madison, claim that their daughter's husband, John Bartoletta, told them on March 17, 2012 that "Tianna Madison would be filing a lawsuit against Robert Madison and Jo Ann Madison for misappropriation of funds and fraud based on her power of attorney and that he had hired a bodyguard to protect Tianna Madison." The parents claim that they were shocked by these allegations, and that they have not been sued or served with such a lawsuit. The parents also state that their daughter sent them an email on July 21, 2012 containing an article that she had written, which, as Tianna stated in her email, had been sent to multiple news agencies. In this article Tianna "falsely and defamatorily asserted" that her parents had "engaged in fraudulent behavior directed toward her and her finances, misused and/or otherwise misappropriated finances belonging to her." The article was supposedly sent to the Cleveland Plain Dealer. The parents met with a reporter from the newspaper, who said that he had received the article but refused to publish it because it contained potentially libelous content. The parents claim that Tianna contacted them again in August, saying that she would break the story after the Olympics. The complaint states that "on August 12, 2012, Tampa Bay Online published an article about defendant Tianna Madison and her Olympic success. The article specifically mentioned that defendant Tianna Madison endured financial hardship and asserted that she was molested as a child." The parents claim that their daughter spread false allegations all over their hometown. They seek punitive damages for defamation.

ABC News

South Dakota meat processor, Beef Products Inc., sued ABC News for defamation on September 13th, over ABC's reports of pink slime produced by Beef Products. ABC aired reports about Beef Products Inc., the nation's largest producer of "lean finely textured beef", in March and April 2012. The company now claims that ABC falsely told viewers that its product was not safe, not healthy, and was not even meat, resulting in the 31-year-old company's loss of hundreds of millions of dollars in profit and roughly half of its employees. In addition to ABC, the company also sued six individuals: news anchor Diane Sawyer, reporters Jim Avila and David Kerley, Gerald Zirnstein, a former U.S. Department of Agriculture microbiologist credited with coining the term "pink slime," former USDA employee Carl Custer and former Beef Products employee Kit Foshee. At a press briefing, Beef Products' lawyer stated that ABC conducted a "sustained and vicious disinformation campaign," and that "to call a food product slime is the most pejorative term that could be imagined. ABC's constant repetition of it, night after night after night, had a huge impact on the consuming public." The suit seeks $1.2 in damages. "The lawsuit is without merit," Jeffrey Schneider, senior vice president of ABC News, a unit of Walt Disney Co, said in a statement. "We will contest it vigorously."

New York Fashion Week

A New York publicist has sued a French magazine editor and her mother for $1 million after a fight over front-row seats at a Zac Posen show. Lynn Tesoro filed the lawsuit on Wednesday against Jalouse editor Jennifer Eymere and Marie-Jose Susskind-Jalou in Manhattan state Supreme Court. It claims "assault, battery, intentional infliction of emotional distress, slander and/or libel." The complaint does not explain the circumstances of the alleged assault, but only states that it took place at Avery Fisher Hall on Sunday. Women's Wear Daily, however, reported that the incident occurred at the Posen show after city fire marshals removed 60 seats. Eymere began arguing with Tesoro, whose firm was in charge of promoting the Posen show, because her mother no longer had a seat. The confrontation escalated, with Susskind-Jalou, Eymere and Eymere's sister engaging in a screaming match with Tesoro. Tesoro was then allegedly slapped in the face. Eyemere told Women's Wear Daily that it was a small slap, and that "it was not strong. I didn't hurt her, it was just to humiliate her. She humiliated my mom, and I humiliated her in front of her crew. Voilà. I just said at the end, 'Now you know you don't fuck with French people. The lawsuit also named Eymere's sister, Vanessa Bellugeon, as a defendant.

Geisa Balla is an attorney practicing in New York, NY. She can be reached at

September 24, 2012

Weekly Issues in the News

By Geisa Balla


Three consumers filed a lawsuit in the southern District of New York against Maybelline over its Super Stay 14HR Lipstick and Super Stay 10HR Stain Gloss. The lawsuit was filed on September 21, 2012 by Carol Leebove, Wanda Santa and Denise Santiago. It alleges that L'Oreal falsely advertised the staying powers of its lip products, which sell for about $9.00 each. The lawsuit claims that despite Maybelline's claims, the lip products fade away after only a few hours. The plaintiffs state that Maybelline misled consumers by claiming that the lip gloss "stays vibrant and shiny, yet transparent, and won't fade" for 10 hours, and that the lipstick has "super staying power." The lawsuit alleges breach of warranty and violations of state consumer protection laws. It seeks class-action status, compensatory and triple damages, and other relief.,_lawsuit_says/


Zynga Inc. filed a counterclaim against Electronic Arts Inc. ("EA"), claiming that EA's lawsuit against Zynga filed last month violated an agreement between the parties over how Zynga can hire EA's employees. Last month, EA filed a lawsuit against Zynga, claiming that Zynga obtained private information about EA's "The Sims Social" game after hiring three of EA's top employees and releasing its own game "The Ville." In its counterclaim, Zynga said that it had reached a deal with EA in 2011 with lawful restrictions on how Zynga solicited EA employees, and in exchange, EA released Zynga from legal claims surrounding its hiring practices.

Zynga now claims that EA breached this agreement by filing its complaint. Zynga states that an EA lawyer told Zynga that EA Chief Executive John Riccitiello was adamant about obtaining a no-hire agreement that would shut down Zynga's ability to hire EA employees. Zynga's filing acknowledged the signing of a non-monetary settlement agreement with EA in September 2011 in an effort to head off litigation. That deal included "lawful, appropriate and extremely narrow non-solicit restrictions" in the context of a non-monetary settlement agreement. In its filing, Zynga said that EA "undertook an anti-competitive and unlawful scheme to stop Zynga from hiring its employees." Its general counsel, Reggie Davis, also said in a statement that EA's copying claims have no merit.

Sister Act

A nun has filed a $1 billion lawsuit against The Walt Disney Company and Touchstone Pictures over the 1992 film "Sister Act." Queen Mother Dr. Delois Blakely of the Franciscan Handmaids of Mary Convent in Harlem filed the lawsuit last week in New York Supreme Court. The lawsuit alleges that "Sister Act" and its 1993 sequel, as well as the musical adaptation, used "plaintiff's actual life experiences without her permission or authorization, thereby irreparably damaging her by depriving her of the windfall of financial gain reaped by defendants." "The subplots actualized in the said motion picture 'Sister Act' and portrayed by Whoopi Goldberg are her real life experiences," the suit adds.

Dan Hamilton

The family of Dan Hamilton, the writer of the 1970s hit "Falling in Love" has won a significant jury verdict against Henry Marx, a music producer accused of failing to pay hundreds of thousands of dollars in revenue. Dan Hamilton was a member of Hamilton, Joe Frank & Reynolds, whose "Fallin' in Love" reached No. 1 on the Billboard Hot 100 in 1975. "Fallin' in Love" had been co-published by Spitfire Music, a company controlled by Hamilton's then-manager Joel Cohen. Marx and his Music Force music publishing company later acquired the Hamilton catalog in the mid-'80s. Hamilton had previously been married to Ann Wallace, who was credited as a co-writer of "Fallin' in Love." After Hamilton's death, Wallace sued his estate for back child support. A settlement was reached in 1998 that allowed Marx to collect 100 percent of revenue from the Hamilton catalog and designated that Marx had acquired the publishing interest of Spitfire. However, Spitfire continued to own a share of the publishing revenue. Fredricka Hamilton, Hamilton's widow and her stepdaughter sued and settled, obtaining rights to pursue Max for underpayment of revenue. The lawsuit against Marx sought money Marx allegedly withheld from royalty payments, as well as money that Marx should have collected had he truly collected 100 percent of the revenue. After a six-day trial, the jury unanimously agreed that Marx had committed fraud and breach of contract. Plaintiffs were awarded $562,317. Additionally, the jury found that punitive damages were warranted. Arguments over what the final award should be will be held on September 26, 2012.

Geisa Balla is an attorney practicing in New York, NY. She can be reached at

September 30, 2012

Weekly Issues in the News

By Geisa Balla

Toys R Us

Fuhi Inc., the maker of Nabi tablet computers for children, filed a lawsuit against Toys R Us on September 24, 2012. The suit alleges that Toys R Us stole trade secrets in preparing to introduce the rival Tabeo tablet this month. It states that Toys R Us agreed in October 2011 to become the exclusive Navi distributor, but in the end did "virtually no promotion" and only ordered for the holiday season a little more than what Toys R Us said could be sold in one day. Fuhu contends that Toys R Us agreed to become the exclusive seller of the Nabi to learn the product secrets before bringing Tabeo to market. The parties ended their exclusive agreement in January. "Toys R Us used Fuhu's trade secrets and confidential information to start selling Tabeo, which systematically attempts to replicate the Nabi experience, far earlier than Toys R Us could have done otherwise, if at all," the lawsuit said. Fuhu accused Toys R Us of fraud, breach of contract, unfair competition and trade secret misappropriation. Fuhu also said that Toys R Us copied Nabi's butterfly-shaped bumper, which is used to help protect the tablet, for Tabeo. The lawsuit seeks to stop Toys R Us from selling Tabeo ahead of the holiday season. Fuhi is also asking that any Tabeos be turned over to Fuhu and is seeking unspecified monetary damages.

Kanye West

Record label TufAmerica filed a lawsuit in the Southern District of New York against Kanye West for copyright infringement on West's latest album "My Beautiful Dark Twisted Fantasy." TufAmerica claims that two tracks on West's album include a bit from "Hook and Sling, Part 1" by New Orleans singer-pianist Eddie Bo. TufAmerica says that it bought the rights to the single more than 15 years ago. The sample appears in West's "Who Will Survive in America" and "Lost in the World." In its complaint TufAmerica alleges that West's label Roc-A-Fella and parent Universal Music Group paid a license fee of $62,000 but "failed and refused to enter into a written license agreements that accounted for their multiple other uses of [Hook and Sling]." TufAmerica is seeking undisclosed damages for copyright infringement.

The Innocence of Muslims

Cindy Lee Garcia, an actress appearing in "The Innocence of Muslims", has filed a lawsuit against YouTube, its parent company Google Inc., and Nakoula Basseley Nakoula, the filmmaker behind the film. Garcia claims that she was duped into appearing in the film, which incited violent protests across the Middle East. Last week, a Los Angeles Superior Court denied Garcia's request for a temporary restraining order that would have required YouTube to stop posting the video, finding that the actress was unlikely to prevail on the merits of her case. In this lawsuit Garcia has brought claims of fraud, libel and unfair business practices against the filmmaker. "The Innocence of Muslims" depicted the Prophet Mohammad as a fool and a sexual deviant. Google has refused to remove the film from YouTube, though the company has blocked the film in Egypt, Libya and other Muslim countries. Garcia claims that Google is infringing on the copyright she holds to her performance in the film by distributing the video without her approval on YouTube. According to Garcia, Nakoula operated under the assumed name of Sam Bacile, misleading her and other actors into appearing in a film they believed was an adventure drama called "Desert Warrior." After the fact, however, she learned that some of her lines spoken in the production had been dubbed over. The alteration made it look like Garcia "voluntarily performed in a hateful, anti-Islamic production", the lawsuit says, adding that she has "been subjected to credible death threats and is in fear for her life and the life and safety of anyone associated with her.",_YouTube_in_federal_court/

Ditocco v. Riordan

Plaintiffs, the authors and copyright owners of two books, The Hero Perseus and Atlas' Revenge, brought a copyright infringement lawsuit against, the author of the five-book series "Percy Jackson & The Olympians," the distributor of the books and the companies that produced and distributed the film "Percy Jackson & the Olympians: The Lightening Thief." The district court granted the defendants' motion to dismiss, finding that there was no substantial similarity between the protected elements of the plaintiff's books and the Percy Jackson books and movie. The plaintiff appealed, and the Second Circuit affirmed the "well-reasoned opinion of the district court." The court explained that both sets of works incorporate characters and classic stories from Green mythology, which are in the public domain and are therefore unprotectable. Leaving these unprotectable elements aside, and comparing the protectable elements of the works, the court concluded that "the district court determined that the two sets of books are not substantially similar as a matter of law." In the plaintiffs' novels, the protagonist PJ Allen is a popular and athletic young man who in his dreams travels to ancient Greece, where he fights mythical beasts and re-creates events in Greek mythology that have been erased from history. The "Percy Jackson & The Olympians" series tells the stories of demigod Percy Jackson and his battles against classical Greek monsters while traveling all over the country with his supernatural friends. The court noted that in these works, the Olympic gods live among the mortals in the modern world, wearing sunglasses, using cell phones and ignoring their demigod offspring.


The Vogue publishing companies Advance Magazine Publishers Inc. New York and Les Publications Condé Nast SA Paris filed a civil lawsuit with the Swiss courts over the activities of a Swiss company that manufactured and sold watches bearing the logo with the words "VOGUE My Style," where "My Style" were printed in very small letters. The Swiss Federal Tribunal issued a judgment, affirming that both "VOGUE" is a well-known trademark and that the lower court had correctly decided that the watchmaker is prohibited to use the term VOGUE for any kind of product likely to create a risk of confusion with the distinctive VOGUE. Importantly, the Federal Tribunal reasoning expanded beyond the lower court's reasoning by holding that the prohibition was not based only on unfair competition, but also on trademark law.

Geisa Balla is an attorney practicing in New York, NY. She can be reached at

October 8, 2012

Weekly Issues in the News

Google Books

Google Inc. and a group of publishers have agreed to a settlement over making digital copies of books. Google and the Association of American Publishers (AAP) said on October 4th that U.S. publishers can decide whether or not they want their books made available through Google. Google Books has allowed users to browse up to 20% of books in its library and then purchase the digital version through Google Play. Google has spent years scanning over 20 million books in partnerships with major libraries around the world. The Authors Guild responded by filing suit in 2005, alleging that Google violated copyright laws. Google settled the matter in 2008, agreeing to pay $125 to each copyright owner whose copyrighted books had been scanned, and to locate and share revenue with the authors who had yet to come forward. However, the Justice Department rejected the settlement. The Authors Guild stated that in spite of the publishers' settlement, it would continue with its fight. "Google continues to profit from its use of millions of copyright-protected books without regard to authors' rights, and our class-action lawsuit on behalf of U.S. authors continues," Paul Aiken, executive director of the Authors Guild said in a statement.

Steel Magnolias

Victoria L. White, the executive producer of the 1989 film Steel Magnolias, filed a lawsuit on October 1st against Lifetime Entertainment, A&E Networks and Sony Pictures Television, claiming that an upcoming TV movie based on the film is being made without permission or agreement for the underlying rights. The lawsuit was filed in the Superior Court of the State of California, Los Angeles County. In the complaint, White alleges to have been "shocked and dismayed" when she learned about the Lifetime project. White co-produced the film with Ray Stark, who died in 2004. The complaint states that White acquired rights to the movie when she entered into an agreement with Rastar Productions Inc., Stark's company, in 1989. In 1991 Sony acquired Rastar Productions. According to the complaint, there was a 1992 CBS movie based on the same material, and White was credited as a co-producer. The lawsuit says that the defendants told White that her rights to a TV version were limited to the 1992 TV movie. She claims that is not the case, and that she is entitled to royalties on all future TV versions. White believes that she is entitled to producing credit on the TV movie, and compensation of $5,000 per episode plus a $10,000 bonus, and a share of net profits. White has also asked the court to stop the release of the new Lifetime movie unless she gets a screen credit for her compensation.


YouTube recently added a more comprehensive appeals process that could help uploaders confronted with unjustified take-down notices in YouTube's Content ID program. Content ID is a program used by YouTube to automate the take-down process of unlicensed content. The program has been in place for four years, and YouTube said Wednesday that it has been used by more than 3,000 content owners, who have supplied the site with more than 300,000 reference files. YouTube announced the changes on its site stating:

"Users have always had the ability to dispute Content ID claims on their videos if they believe those claims are invalid. Prior to today, if a content owner rejected that dispute, the user was left with no recourse for certain types of Content ID claims (e.g., monetize claims). Based upon feedback from our community, today we're introducing an appeals process that gives eligible users a new choice when dealing with a rejected dispute. When the user files an appeal, a content owner has two options: release the claim or file a formal DMCA notification."

Adding the DMCA could help uploaders defend their use of material when it is covered by the fair use doctrine, and could help YouTube to convince more content owners to monetize. YouTube also said that it has improved its algorithms to detect false take-down notices, which could reduce the risk of automated mass take-downs.

California's Student Athlete Bill of Rights

Athletes enrolled in California's four-year institutions or higher education will be protected by the Student-Athletes Bill of Rights, effective January 1, 2013. This is the first law of this nature in the nation. The law applies to California universities that generate more than $10 million annually in athletics-related media revenue. Under the new law, if a student suffers a season-ending injury while participating in his or her scholarship program or exhausts his or her eligibility, the school must continue to provide benefits equivalent to that student's scholarship. Schools must pay the medical premiums for program-related medical claims for lower-income students and must pay the deductible amount for program-related injuries for any athlete. If an athlete requires ongoing treatment for a sports-related injury, the school must provide at least two years of that treatment or treatment covering insurance. The law also requires universities to provide specified financial and life skills workshops, including budget recommendations and time management skills. It directs universities to use their athletic media revenues to pay for complying with the law. Schools directly affected based on current revenue are Stanford, Berkeley, UCLA, and USC. NCPA President Ramogi Huma explained: "This is a great day for college athletes. California has acted to ensure that the players generating billions of dollars for its colleges are guaranteed basic physical, academic, and financial protections. No other state in the nation guarantees its college athletes these protections, and the NCPA will work to change that."


Bakers Footwear Group Inc., which operates 215 women's shoe stores in the United States, filed for bankruptcy protection on October 3rd. The company has been closing and selling stores, laying off staff and ending licensing deals. Bakers' weak sales pushed it into default on a $30 million secured credit facility it entered into with Crystal Financial LLC. Crystal agreed to lend the company $22 million to get it through its bankruptcy, according to documents filed in St. Louis's bankruptcy court. The loan requires that Bakers have a bankruptcy restructuring agreement in place by Nov. 2, or begin a process to find a buyer for the chain. Bakers has assets worth $41.9 million and debts worth $59.5 million, according to court documents.

Geisa Balla is an attorney practicing in New York, NY. She can be reached at

October 12, 2012

Weekly Issues in the News

By Geisa Balla


The operator of Artist Arena, a celebrity fan website for music stars Justin Bieber, Rihanna, Demi Lovato and Selena Gomez, has agreed to settle Federal Trade Commission (FTC) charges that it violated the Children's Online Privacy Protection Act (COPPA) by improperly collecting personal information from children under 13 without their parents' consent. The settlement will impose a $1 million civil penalty on Civil Arena, bar future violations of COPPA, and require that Artist Arena delete information collected in violation of COPPA. "Marketers need to know that even a bad case of Bieber Fever doesn't excuse their legal obligation to get parental consent before collecting personal information from children," said FTC Chairman Jon Leibowitz. "The FTC is in the process of updating the COPPA Rule to ensure that it continues to protect kids growing up in the digital age."

According to the FTC, Artist Arena operated fan websites such as,,, and, where children were able to register to join fan clubs, create profiles and post on members' walls. Children also provided personal information to subscribe to fan newsletters. The FTC alleged that Artist Arena falsely claimed that it would not collect children's personal information without prior parental consent and that it would not activate a child's registration without parental consent.


MGM Distribution won an appellate decision over the distribution of the film Madison. The film was shot by Bill Bindley in 1999. Its financial backers sued MGM in 2009, claiming that the studio failed to properly distribute the film. According to the lawsuit, MGM released Madison in April 2005 with the help of $6.75 million in marketing funds provided by a production company called Madison LLC. The film flopped, grossing just $500,000. MGM released it in only 15 markets and on 93 screens. The film's investors lost tens of millions of dollars and brought suit against MGM, which defended on procedural grounds, arguing that the studio did not have enough contact with Illinois to be sued there. Two years later the court ruled that it was proper to exercise jurisdiction over MGM in Illinois. MGM appealed. The appellate court overturned the trial court on September 28th, holding that MGM should not have been sued in Illinois. "We find that MGM Distribution did not in fact have sufficient minimum contacts with Illinois to support the exercise of specific personal jurisdiction in this case," and remanded it back to the trial court.


Stan Lee Media, the company that controls the rights to several Marvel characters, including Spider Man and Iron Man, has filed suit in the U.S. District Court in Colorado against Walt Disney Co., seeking "billions of dollars of profits" over the rights to many characters. Stan Lee himself is no longer associated with the company. The company claims that Lee assigned to it his rights to the Marvel characters in 1998, but then assigned the same rights to Marvel Enterprises one month later. Disney acquired Marvel Enterprises in 2009 for $4.3 billion. "The Walt Disney Company has represented to the public that it, in fact, owns the copyright to these characters as well as hundreds of other characters created by Stan Lee," states the complaint. "Those representations made to the public by the Walt Disney Company are false." The lawsuit focuses on successful movies based on Marvel characters that Disney has released since the acquisition, such as The Avengers. Disney claims that the suit is without merit, and that "it arises out of the same core facts and legal claims that have been rejected by three federal district court judges."

Electronic Arts

U.S. District Judge Claudia Wilken ruled on October 10th that Electronic Arts (EA) can settle antitrust claims by paying $27 million and releasing exclusivity rights to league-branded football video games. In 2008, lead plaintiffs Geoffrey Pecover and Jeffrey Lawrence claimed that EA killed off competing football video games by partnering with the National Football League (NFL), the National Collegiate Athletic Association (NCAA), the Collegiate Licensing Co. (CLC) and the Arena Football League (AFL). According to the complaint, EA was free to hike up the prices of its own games and gouge customers by monopolizing the market for these games. EA denied the allegations as well as any wrongdoing, eventually filing the joint settlement on July 20, 2012. The agreement bars EA from renewing its exclusive NCAA and CLC football licenses for at least five years after they expire in 2014. EA must also refrain from obtaining exclusive rights to the AFL for five years. The settlement will not affect EA's exclusive licensing with the NFL, even though the "Madden NFL" video game was central to the original lawsuit. The $27 million settlement fund will be distributed to consumers who purchased "Madden NFL," "NCAA Football" or "American Football League" games that were published between Jan. 1, 2005, and June 21, 2012.

Elton John

On October 10, 2012, the UK High Court held that Elton John was not defamed in The Times article about a tax avoidance scheme. On June 21st, the British newspaper carried the headline "Screen Play: how movie millions are moved offshore," and mentioned Ingenious Media top executive Patrick McKenna, who was said to be Elton John's former accountant and one of two main providers of film investment schemes in the UK. The paper also included another article that referenced John in a report about the "world of glitz and glamour that's on the Revenue's radar." John's attorneys sent a letter to the publishers, and The Times ran a correction stating that McKenna had never been John's accountant and then printed a "clarification" that Ingenious Media had not been involved in tax avoidance activities. Despite the correction, John sued, saying "the allegations are particularly damaging to the claimant's reputation in the sphere of charity fundraising." UK High Court Justice Michael Tugendhat held that the publication was not defamatory. "The conclusion I have reached is that the words complained of are not capable of bearing the meaning attributed to them by the claimant or any other defamatory meaning."

Geisa Balla is an attorney practicing in New York, NY. She can be reached at

October 19, 2012

Weekly Issues in the News

By Geisa Balla

Clint Eastwood

Earlier this week, Clint Eastwood settled his claim with Evofurniture over the use of his name to sell furniture. In April 2012, Eastwood filed the lawsuit, claiming that Evofurniture was selling ottomans and chairs as "Clint" and "Eastwood" and trading on the goodwill associated with his name and his movies. Eastwood claimed that Evofurniture was "continuing to use Mr. Eastwood's name, identity and persona for the purpose of attracting attention to the infringing products," alleged the lawsuit. Evofurniture had advertised: "When you're invited into a person's home, you get to see the good, the bad and the ugly. When visitors come to your home, the Clint 47'' Entertainment Center makes your family room alone look like you live in a perfect world of a million-dollar baby." Eastwood sought a permanent injunction against the chair that bore his famous name, plus damages for misappropriation of right of publicity. Following mediation, the parties informed the court that they had reached an agreement on a global settlement to end all claims. The settlement terms were not disclosed.

The Bachelor

U.S. District Judge Aleta Trauger dismissed a civil rights lawsuit filed by two men who claimed that they were rejected for the starring role of ABC's "The Bachelor" because of their race. The lawsuit was filed by Nathaniel Claybrooks and Christopher Johnson in Nashville federal court. The plaintiffs claimed that ABC had never cast a person of color in the show's central role as a matter of policy. Claybrooks and Johnson had sued ABC, which is owned by Walt Disney Co, Warner Horizon Television Inc., which produces the show, Next Entertainment Inc., NZK Productions Inc. and executive producer Michael Fleiss in April. Judge Trauger stated that the men's goals were "laudable", but that the rights of the show's producers to control their creative content are protected by the First Amendment. Claybrooks and Johnson "seek to support social acceptance of interracial relationships, to eradicate outdated racial taboos, and to encourage television networks not to perpetuate outdated racial stereotypes," Trauger wrote. "Nevertheless, the First Amendment prevents the plaintiffs from effectuating these goals by forcing the defendants to employ race-neutral criteria in their casting decisions in order to 'showcase' a more progressive message."

Madonna and Marlon Brando

CMG Worldwide Inc. (CMG) has filed a breach of contract lawsuit against Marlon Brando's estate, claiming that the estate is reneging on a deal allowing the use of Brando's name and likeness during Madonna's 2012 World Tour. The complaint alleges that after CMG entered into a valid contract with Brando's estate, the estate backed out and demanded more money for the use of Brando's name, likeness and image. Under the initial agreement, Madonna would be able to use Brando's name, likeness and image for $5,000. According to CMG, the deal with Brando was exactly the same as those deals reached with the other deceased stars and the agreement itself included a "most favored nations" clause that ensures that each star receives equal financial treatment. After an oral acceptance of the deal, followed by acceptance via electronic message, Brando's estate reportedly upped its fee a week later -- to $20,000. CMG is seeking the declaration of a valid and enforceable contract between the parties, and demanding that Brando's estate be enjoined from bringing suit against CMG under the agreement.

Go the Distance Baseball LLC

Go the Distance Baseball LLC (Got the Distance) filed a lawsuit against the Residential & Agricultural Advisory Committee in Iowa on October 12, 2012 over the construction of an "All-Star Ballpark Heaven." Go the Distance, a development company run by Denise and Mike Stillman, is involved in a $38 million project to turn a 193-acre farm in Dyersville, Iowa into a destination spot for youth baseball and softball athletes. The development would be constructed on the same site used in the 1989 film "Field of Dreams". However, the residents of Dyersville objected to the development plan. Citizens distributed a "Save our Town" letter in June, warning of hotel and parking issues, as well as food threats as a result of the development. The Residential & Agricultural Advisory Committee initiated legal action to have the city's rezoning decision reconsidered. That attempt was denied. An appeal would derail the Stillmans' hope to close on the deal by the end of the year, and thus they filed their own lawsuit to push the project forward. The lawsuit brings claims of tortious interference and defamation. The "Save our Town" letter has become an exhibit in support of the allegation that the Advisory Committee is attempting to interfere with the plans. The Stillmans accuse the local residents of lying to their neighbors about the development and libeling them with defamatory statements.

Warner Brothers

On October 17, 2012, the U.S. District Court for the Central District of California granted Warner Brothers' motion for summary judgment on in its Superman copyright claim. The issue was whether a 1992 agreement with Jean Peavy, the sister of Superman's co-creator Joe Shuster, precludes the Shuster estate's attempt to terminate a copyright grant. The judge ruled "that the 1992 Agreement, which represented the Shuster heirs' opportunity to renegotiate the prior grants of Joe Shuster's copyrights, superseded and replaced all prior grants of the Superman copyrights. The 1992 Agreement thus represents the parties' operative agreement and, as a post-1978 grant, it is not subject to termination." Defendants' counsel stated: "The order for the most part is the tentative order issued over six weeks ago before oral argument. We respectfully disagree with its factual and legal conclusions, and it is surprising given that the Judge appeared to emphatically agree with our position at the summary judgment hearing."

Geisa Balla is an attorney practicing in New York, NY. She can be reached at

About Geisa Balla

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