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By Jason Kairalla
With little fanfare, the presiding federal district judge in the GEICO v. Google case issued the muchanticipated and long-awaited written order on Google’s motion for judgment on the pleadings. As previously chronicled, the court, on August 25, 2004, issued an order denying, in part, the motions to dismiss of defendants Google, Inc. and Overture Services, Inc.
By Diane Duhaime
Proper usage of a trademark is essential to maintaining the company’s exclusive ownership of the mark in the United States. Therefore, once the company has obtained clearance of the mark from its trademark counsel, the company will likely want to make an application for federal trademark registration of the mark.
Consumer protection laws regulating debt collection practices are a complex minefield of potential liability for creditors and other debt collectors. Large damage awards, provisions for recovery of attorneys’ fees, and increased awareness and interest in consumer protection in general have fueled an explosion in class action lawsuits, even for seemingly minor violations of such legislation.
By Diane Duhaime
This article provides an update on the CAN-SPAM Act, including final Federal Trade Commission and Federal Communications Commission rules. The intended result of the CAN-SPAM Act is to reduce the amount of spam. It is widely acknowledged, however, that the spam problem cannot be solved by legislation alone, and that technological approaches and the cooperation of other countries will also be necessary.
By Farrokh Jhabvala, Ben Seessel Esq
Federal courts appear to be changing their position as to who should decide whether the preclusion of punitive damages in an arbitration clause is for the court or the arbitrator to decide. The changing law on the subject poses serious questions for businesses as to the utility of arbitration clauses. Prior case authority generally shows that federal courts were not shy about deciding whether an arbitration clause that precluded punitive damages was enforceable.
By Farrokh Jhabvala, Patrick Leary
On November 30, 2004, the Supreme Court rendered its decision in Koons Buick Pontiac GMC, Inc. v. Nigh, resolving a split between Circuit Courts regarding the maximum recovery permitted by the Federal Truth in Lending Act’s civil-liability provision in an action against a creditor for a loan secured by personal property.
On December 8, 2004, the U.S. Supreme Court issued a slip opinion which resolves a dispute among the U.S. Circuit Courts of Appeals regarding the trademark fair use doctrine. While a majority of the circuits have held that fair use is an absolute defense in trademark infringement cases, in April 2003, the Ninth Circuit rendered a decision which appeared to hold that the party asserting the fair use defense is required to demonstrate an absence of likelihood of confusion.
By Diane Duhaime, Elizabeth Pasquine
In Part I, we covered preliminary trademark searches as a relatively inexpensive first step to obtain clearance of a proposed trademark. If the new trademark passes the initial screening, trademark counsel will often recommend obtaining a more comprehensive search report from a commercial trademark search firm.
By Diane Duhaime
In September, the U.S. Court of Appeals for the Federal Circuit in a 10-1 decision overturned the rule that allowed the jury to draw an "adverse inference" against the patent infringement defendant if the defendant did not offer a patent legal opinion into evidence. Knorr-Bremse Systeme Fuer Nutzfahrzeuge GmbH v. Dana Corp., 383 F.3d 1337 (Fed. Cir. 2004). The jury was permitted to infer that no patent opinion was obtained at all, or that an opinion was obtained but it was unfa
By Diane Duhaime
In May, 2004, GEICO, one of the largest U.S. auto insurers, brought a trademark infringement lawsuit against Google, Inc. and Overture Services, Inc. in the U.S. District Court for the Eastern District of Virginia. In November, the court denied, in part, the defendants’ motions to dismiss, but let stand GEICO’s trademark infringement and unfair competition claims, including those alleged under the theories of contributory and vicarious liability.
By Ann Furman, Elizabeth Pasquine
As of February 14, 2005, NASD members will be able to provide investment analysis tools to their customers without running afoul of NASD Rule 2210(d)(1)(D), which currently prohibits members from making predictions or projections regarding investments or investment services.
By Ann Furman, Elizabeth Pasquine
In November 2004, NASD issued guidance to members regarding whether there are any exceptions to NASD’s position that negative response letters should not be used for special product accounts, including mutual fund and variable annuity accounts where the account is held directly with the issuer.
Over the past ten years or so, life insurance companies have been faced with a wave of class action lawsuits challenging the manner in which they sell their policies.
By Angela Thompson
Marsh & McLennan Cos., the world’s largest insurance broker, has been sued by New York Attorney General Eliot Spitzer based on allegations that Marsh steered clients to favored insurance companies and worked with major insurers to rig the bidding process for property-casualty insurance coverage.
By Diane Duhaime, Elizabeth Pasquine
This is the third in a series of introductory articles on the topic of trademark law.