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A trademark, antitrust and unfair completion lawsuit was filed in Las Vegas, Nevada on behalf of plaintiff Nights at Vegas, Inc., a Las Vegas based real-estate property-management company. The Defendants are the ubiquitous Donald Trump, the star of television reality show The Apprentice, and several companies that include …you guessed it… the name Trump in some way, shape, or form. The lawsuit seeks the Court’s declaration that Nights at Vegas can fairly use the Trump trademarks in its advertising when it attempts to rent out condominium space in the Trump Towers.

TrumpLV.jpgAlso, Nights at Vegas accuses the Trump Defendants of antitrust violations for entering into exclusive deals with online travel sites to only use the Trump owned management-company, refusing to deal with the plaintiff, and intimidating real estate agents to suppress the fact that condo owners can deal with plaintiff. Plaintiff alleges that they only charge a twenty percent commission for the rented condos and Trump charges fifty percent.

Further, the complaint adds a cause of action for false promotion under 15 U.S.C. § 1125(a)(1)(b) based on the statements in Trump’s agreements that property owners will not be free to stay at their own property if they deal with other management companies (i.e., there will be “blackout periods”). There is also a state cause of action for unfair competition thrown in without much elaboration.

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A federal complaint alleging (i) copyright infringement, (ii) unfair competition and false designation of origin under the Lanham Act § 43(a) (15 U.S.C. 1125), (iii) unlawful deceptive acts and practices, and (iv) unfair competition under New York law was filed against Target Corp., by well renowned fashion designer Diane von Furstenberg (“DVN”). DVN accuses Target of selling a dress with a print that is nearly identical to DVN’s fabric pattern and design for a “spotted frog” print, for which DVN owns copyright registration number VAu704-073. Click HERE to read the complaint.

dvndresspic.jpgDVN alleges that after her attorneys sent a cease and desist letter to Target, the infringing dress was quickly removed from Target’s website. Target, however, is accused of continuing to sell the infringing dresses at its retail locations across the country. Thus, the complaint alleges that Target’s “infringement is willful, done with knowledge of and/or in reckless disregard of DVF’s rights in its Spotted Frog Design.” If the infringement is found to be willful, the Court may award punitive damages.

PRACTICE NOTE: Copyright laws currently protect patterns and designs printed on or stitched into the fabric. As we have previously discussed, however, copyright protection is not currently available to protect fashion designs themselves (i.e. the cut, style, or dimensions of clothing). But the Design Piracy Prohibition Act (H.R. 5055) bill is currently pending in congress that, if enacted into law, will provide three years of protection for the fashion design if certain conditions are met. Click Here To Read About The Bill.

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In a patent infringement lawsuit, medical device maker TriMed, Inc. had accused Stryker Corporation, a competing medical equipment manufacturer of devices that mend broken bones, of infringing on its utility patent related to an implantable wrist-fracture treatment medical device. The District Court in Los Angeles, California had adopted Stryker’s proposed claim construction and granted summary judgment of non-infringement.

389Patentpic.jpg TriMed appealed and the Federal Circuit Court of Appeals (“CAFC”) held that the claim at issue of U.S. Patent No. 5,931,839 “recites sufficient structure on its face for performing the claimed functions, and therefore, contrary to the district court’s interpretation, does not involve a means-plus-function limitation.” In holding that the lower court had erred in its claim construction and order of non-infringement, the Federal Circuit stated:

Stryker’s motion for summary judgment of noninfringement was premised solely upon reading the claim language at issue as a means-plus-function limitation. Having properly construed the relevant claim language as falling outside the ambit of § 112 ¶ 6, we hold that Stryker has failed to demonstrate that there is no genuine issue of material fact that its accused devices do not infringe on the ‘839 patent. By Stryker’s own admission, the structural limitation of holes in claim 1 is certainly present in its accused devices.

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The New England Patriots are apparently so confident that they will win the Super Bowl and finish the season with a perfect 19 and 0 record, that on January 17, 2008, they filed trademark applications with the United States Patent and Trademark Office to protect the “19-0 The Perfect Season” and “19-0” trademarks on numerous goods and services. Click To See The Applications. Not to be outdone and to show support for the New York Giants, the New York Post newspaper has reportedly filed a trademark application for “18-1.”

The Patriots, however, may be dismayed to learn that they were beaten to the punch. William Harpole – who was apparently more confident than the Patriots – filed a trademark application for “19-0 The Perfect Season” over two months earlier. Click To See Harpole’s Application. Nine years earlier, Mr. Harpole – a possible clairvoyant – had also filed a trademark application for “The Perfect Season 19-0” on December 7, 1998. But the 1998 application was later unwisely abandoned, thereby drawing the previous “possible clairvoyant” accolade into question.

Because Mr. Harpole’s current trademark application filing date precedes the Patriot’s application by over two months, Mr. Harpole’s application is superior to that of the Patriot’s and a trademark dispute and possible litigation may follow. See 37 C.F.R. § 2.83.

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Jay Leno, The Tonight Show comedian, had sued Judy Brown and her book publishers for copyright infringement for publishing his jokes without permission in several joke books. Other comics such as Rita Rudner and Bob Ettinger were also named as plaintiffs in the copyright lawsuit, which was filed in US District Court in Los Angeles. NBC Studios, which produces The Tonight Show and is the copyright owner under the work-for-hire doctrine, was also a plaintiff in the copyright infringement case.

Judy Brown was accused of publishing books with jokes from various comedians – although she did give credit to the authors of the jokes. Leno’s copyright attorney had argued that by naming the source of the material, Brown admitted that she was not the true author and had willfully infringed on the comedians’ copyrights.

“I thought it was important to make it clear that jokes are protected like any other art form,” Leno said in a statement. In fact, Compendium II of Copyright Office Practices § 420.02 provides for copyrighting jokes and comedy routines if they contain at least a certain minimum amount of original expression in tangible form. However, short quips and slang expressions consisting of no more than short phrases are not registrable. Further, the copyright protection in jokes only applies to the “expression” (i.e. the way the words are arranged) and not the “idea” itself. See Gibson v. CBS, Inc., 491 F. Supp. 583 (S.D.N.Y. 1980) (the court dismissed a copyright infringement lawsuit involving a comedy skit where the only similarity between the two routines involved people pretending to be eggs).

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Nike’s Glendale, California based trademark attorneys filed a complaint in Los Angeles Federal District Court against defendants Carl Robbins and CWR Enterprises, Inc. alleging infringement of numerous registered trademarks. Nike accuses the defendants of allegedly selling “unlicensed and counterfeit products, specifically including its core product of sports shoes, bearing Nike’s exclusive trademarks.” Nike’s complaint includes a list of over forty registered trademarks which are allegedly infringed.

nike_swoosh.jpg The lawsuit sets forth five causes of action and seeks a preliminary injunction and a permanent injunction of Defendants’ alleged conduct:

  • Trademark infringement “under Sections 32 and 43 of the Lanham Act, 15 U.S.C. §§ 1114 and 1125, for infringement of registered and unregisterd marks” and accuses Defendants of selling counterfeit products under 15 U.S.C. § 1116(d);
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Luxury-goods maker Louis Vuitton sued Haute Diggity Dog, a small company, for trademark, trade dress and copyright infringement for selling “Chewy Vuiton” dog chew toys and beds. The trial court determined that Louis Vuitton’s trademark litigation stance had more bark than bite and ruled in Haute Diggity’s favor. “The fact that the real Vuitton name, [trademarks and trade dress] are strong and recognizable makes it unlikely that a parody – particularly one involving a pet chew toy and bed – will be confused with the real product,” stated the court, while addressing the likelihood of confusion factors.

chewyVpic.jpgAs an amusing side-note, the company also spoofs other well known trademarks by selling products under the “Dog Perignon,” “Bark Jacobs,” “Chewnel # 5,” and “Sniffany & Co.” trademarks.

Louis Vuitton doggedly appealed the decision and the appellate court recently agreed with the trial court that Haute Diggity’s dog toys were a successful parody of the Louis Vuitton’s trademark, trade dress and copyright. The Fourth Circuit Court of Appeals stated:

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