Many people are surprised to learn that Hillary Clinton was an
intellectual property attorney when she practiced law from
1977-1992 for the Rose Law Firm. While the New York Times has reported that former
colleagues cannot remember any cases she tried and that court
reporters in Little Rock say she appeared in court infrequently,
there are at least three reported court decisions on which she is
named as counsel. A review of those decisions provides an
interesting glimpse into Clinton's background with intellectual
In a case involving allegations of false advertising, Clinton
represented Maybelline Co. in a suit against Noxell Corp. regarding
Noxell's "Cover Girl Clean Lash" mascara
product.1 According to the complaint, Maybelline's
principal place of business and only factory in the United States
was located in North Little Rock, Arkansas. Maybelline asked the
court to restrain Noxell from advertising the Clean Lash mascara as
being waterproof. Maybelline submitted to the court a videotape of
a Clean Lash commercial in which a voice-over claimed that
"water won't budge" Clean Lash and that it
"laughs at tears," and then submitted independent
laboratory tests contradicting those claims. Maybelline argued that
the commercials were deceptive. Unfortunately for Clinton, it was
found that Maybelline brought suit in the wrong venue because
Noxell was not doing business in the Eastern District of
Arkansas.2 The case was transferred to a court in New
York and settled.3
In a trademark infringement case, Clinton represented First
Nationwide Bank against Nationwide Savings and Loan Association
regarding the use of the mark "Nationwide
Savings."4 In particular, First Nationwide Bank
sought an injunction against the Savings and Loan Association's
use of the phrase "Nationwide Savings" for financial
services. First Nationwide Bank argued that the use of the disputed
phrase was likely to cause confusion among customers as to the
provider of the financial services and was an attempt by the
Savings and Loan Association to benefit from the valuable goodwill
and reputation established by First Nationwide Bank. Clinton helped
to secure injunctive relief for the Bank to prevent the Savings and
Loan Association from using the mark.
In another case involving allegations of trademark infringement,
Clinton represented Holsum Baking Co. against W.E. Long Co.
regarding the use of the "Holsum" trademark in the
marketing of bakery products. Long registered the
"Holsum" mark on bakery products in Arkansas and later
entered into an agreement granting Holsum Baking the right to use
the "Holsum" name for advertising purposes in certain
areas for three years. After that time, Holsum Baking began using
the composite mark "Holsum Sunbeam" until more than 40
years later when it introduced a wheat bread product and marketed
it as "Holsum Grains" with no mention of Sunbeam. Long
then contacted the packaging suppliers of Holsum Baking and advised
them not to sell packaging bearing the "Holsum" mark to
Holsum Baking. Holsum Baking sought injunctive relief to reinstate
its packaging source with the "Holsum" mark, arguing that
the earlier agreement had been breached or abandoned by the parties
and that Holsum Baking had acquired the rights to the
"Holsum" mark due to use for more than 44 years. Clinton
helped to secure a preliminary injunction for Holsum Baking.
While the number of reported cases involving Clinton is too
small to draw any definitive conclusions, the above three cases
demonstrate Clinton's advocacy for companies that had their IP
rights threatened. Some commentators have criticized Hillary
Clinton's current intellectual property platform as being
vague, consisting of passing references to patent litigation reform
and copyright policy. However, given her past experience, she may
have more detailed thoughts on IP policy–an area that rarely
is a focus in presidential campaigns.
1 Maybelline Co. v. Noxell Corp., 643 F. Supp.
294 (E.D. Ark. 1986).
In Wasica Finance GmbH v. Continental Automotive Systems, Inc., No. 15-2078 (Fed. Cir. 2017), the patentee Wasica Finance discovered, among other things, the importance of using consistent terminology in the patent specification and claims.
While under attack for several years now, the patent infringement defense of laches was dealt a serious, and likely final, blow by the recent Supreme Court case of SCA Hygiene Products AB et al. v. First Quality Baby Products LLC et al.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
On April 6, 2017, the Federal Circuit reversed-in-part and affirmed-in-part the district court's judgment of infringement and summary judgment for non-infringement of The Medicines Company's ("MedCo") patents-in-suit.
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