Legislative and Regulatory Update
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In This Issue [No.109] Jauary 10, 2005
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To keep you informed about the latest Legislative and Regulatory information manupatra.com publishes this e-roundup highlighting the recent changes brought about by the Notifications/Acts/Bills /Ordinances etc.
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Cases
Source: Westlawinternational.com
Marks and Logos: Investment advisor's "Everest Capital" mark was not infringed.
A jury's finding that an investment advisor's "Everest Capital" mark was not infringed by another advisor's use of "Everest Investment Management," "Everest Funds Management," and "Everest Funds" marks was supported by the evidence. The marks employed different fonts and graphics, the parties did not directly compete, and the plaintiff's customers were financially sophisticated.
Everest Capital Ltd. v. Everest Funds Management, L.L.C.
Marks and Logos: Audio equipment seller's use of letter "S" on invoices was not protectable.
An audio equipment seller's use of a plain, unadorned letter "S" as a prefix when identifying inventory on its customer invoices was not sufficiently distinctive to warrant trademark protection. Though arbitrary, the letter was not inherently distinctive, and there was no evidence that customers recognized the letter as identifying the seller's products.
Professional Sound Services, Inc. v. Guzzi
Process: Service of process upon trademark infringement defendant by e-mail was warranted.
Service of process upon a trademark infringement defendant by e-mail was warranted, as the method of service most likely to reach the defendant. Prior e-mails had successfully reached the defendant, whose mailing address in Portugal was otherwise unknown. The issue was one of first impression in the Sixth Circuit.
Popular Enterprises, LLC v. Webcom Media Group, Inc.
Contracts: A contract was voidable for architects' failure to obtain a certificate of authorization.
A contract between a college and an architecture partnership to design a building was voidable, rather than void, for the architects failure to obtain a certificate of authorization to operate their business as a partnership. The architects had not violated the state licensing statute, and there was no risk the public generally, and the college particularly, were having work foisted on them by unlicensed personnel.
District Bd. of Trustees of St. Johns River Community College v. Morgan
Class Actions: Attorney fees of $609,012,000 awarded to lead counsel in antitrust class action was reasonable.
Attorney fees of $609,012,000 awarded to lead counsel, who obtained the largest antitrust class action settlement ever, was reasonable. The fee represented approximately 18% of the present value of the settlement's compensatory relief, 2.14% of the present value of the settlement, inclusive of injunctive relief, and 9.68 times the lodestar figure, but less than amount of negotiated fee arrangement with the plaintiffs.
Wal-Mart Stores, Inc. v. Visa U.S.A., Inc.
Evidence: Evidence, which ought in fairness be admitted to complete related evidence, must be authenticated.
Evidence that comes within the exception to the hearsay rule which applies to a writing or recorded statement, which ought in fairness to be considered with a related writing or recording that has already been admitted into evidence, is subject to the authentication requirement.
Liftee v. Boyer
Child Support: Statute authorizing revocation of driver's license for failure to pay child support was not unconstitutional.
The statute authorizing revocation of a father's driver's license for failure to pay child support did not violate his substantive right to due process. There was a rational relationship between the statute and the statute's goal, inasmuch as the threat of a driver's license suspension was an effective enforcement tool for payment of child support obligations.
Amunrud v. Board of Appeals
Child Support: Juvenile court had authority to award retroactive child support to adult emancipated child.
A juvenile court had jurisdiction to award retroactive child support payments to an adult emancipated child who filed a paternity action before her twenty-third birthday. The statute governing paternity actions expressly provided that the child was entitled to commence a paternity action up to the age of 23, and the child support statute provided that the juvenile court had the authority to make a support order once a parentage determination was made.
Carnes v. Kemp
Intellectual Property: ISP was not required to disclose identities of subscribers who were sharing copyrighted music.
The Digital Millennium Copyright Act did not authorize copyright owners or their representatives to obtain and serve subpoenas on Internet service providers (ISPs) to obtain personal information about the ISP's subscribers who were alleged to be transmitting copyrighted works via the Internet using "peer to peer" or "P2P" file sharing computer programs. A subpoena seeking to identify an infringer was available only where the ISP was performing a storage or linking function, and not when it was merely performing a transmission function.
In re Charter Communications, Inc., Subpoena Enforcement Matter
News
Afghan Judge arrested in connection with Kabul Car Bombing Episode
The Afghan authorities arrested an Afghan Supreme Court judge in connection with the August car bomb attack that killed ten people, including three Americans, outside a US security firm in Kabul. The Judge was arrested after two men accused of organizing the crime told investigators that they had stayed at the Judge's house in Kabul. Later, authorities discovered explosives during a raid at Naqibullah's home. A spokesman for the Supreme Court said that Judge Naqibullah belonged to a faction of the Mujahideen, or holy warriors, who fought against Soviet control in the 1980s and the Taliban control in the late 1990s.
Lawsuit Alleges Children's Motrin Causes Stevens-Johnson syndrome
A lawsuit was filed on Tuesday in Los Angeles Superior Court Compton Division against pharmaceutical giant, Johnson & Johnson, alleging that the company’s product Children’s Motrin causes Stevens-Johnson Syndrome, a harmful reaction resulting in severe burning, blistering, blindness or death in some cases. The Plaintiff, Sabrina Brierton Johnson, aged 7, claimed that an allergic reaction after consuming Children's Motrin caused her to become blind and photosensitive. The lawsuit, Sabrina Brierton Johnson vs. Johnson & Johnson is aimed to get the Defendant Company re-label Children's Motrin, so that it carries a warning regarding the dangers of Stevens-Johnson Syndrome.
Medical Malpractice Bill Shields Drugmakers
President Bush’s Medical Malpractice Bill intends to curb some of the high costs of health care in America and improve the quality of health care but at the same time the bill would prevent consumers from seeking punitive damages from the makers of defective drugs like Vioxx, Celebrex and Bextra. These three popular arthritis drugs have been linked to increased risks of heart attacks and strokes and therefore have been taken out of the market. The bill grants liability protections not only for malpracticing doctors, but also to hospitals, HMOs, nursing homes and manufacturers of medical devices and pharmaceutical companies such as Merck & Co., the maker of Vioxx, and Pfizer, the maker of Celebrex and Bextra. It includes a $250,000 cap on non-economic damages if the malpractice bill becomes law.
Archdiocese of Portland Ad Campaign Targets Abused Victims
The Archdiocese of Portland had issued a legal notice to the general public to bring any claim against it including child sexual abuse by a member of the clergy or an employee of the Archdiocese by April 29, 2005. The legal notice was placed in all the major newspapers The "bar date" of April 29, 2005 was set by the U.S. Bankruptcy Court as the last day to file claims. This notification process is a part of the bankruptcy proceedings. It will assist the Archdiocese and the Bankruptcy Court in establishing the total amount of outstanding debt the Archdiocese owes.
Eli Lily Said to Know of Prozac Suicidal Risks
The British Medical Journal, said last week that it had given the U.S. Food and Drug Administration documents that suggest a link between Prozac, made by Eli Lilly, and suicidal thoughts and behaviors. The documents are believed to have gone missing during the controversial Wesbecker case in 1994, which was brought against Eli Lily on behalf of victims of a work-place shooting in Louisville. According to the BMJ, the "missing documents" indicate that Eli Lily officials were aware in the 1980s that Prozac may cause suicidal thoughts and behaviors. The journal said it received the documents from anonymous source last month. The documents went missing in 1994. The gunman, who shot eight people dead and wounded another 12 and then killed himself, had been placed on Prozac one month before the shootings
Court martial over 'Iraqi abuse'
A British soldier accused of mistreating Iraqi detainees near Basra faces court martial. Gary Bartlam, from the Royal Regiment of Fusiliers, one of the four soldiers accused of ill-treating Iraqi prisoners in May 2003 was arrested at a film processing shop at Tamworth, Staffordshire, after staff found pictures appearing to show the alleged abuse. The case will be heard at a British Army base in Hohne, Germany. The other three soldiers from the regiment are also expected to face a further court martial in Osnabruck, Germany, later this week, in connection with the abuse allegations. All the charges relate to incidents alleged to have taken place at a food storage warehouse near Basra where Iraqi civilians were temporarily detained. The charges range from assault and indecent assault to failure to report the alleged abuse.
Department of Economic Affairs
Post Office Recurring Deposit (Amendment) Rules, 2004
Notification No. GSR838(E) Dated 27.12.2004: The Central Government, vide this notification further amended the Post Office Recurring Deposit Rules, 1981. Now, for withdrawals made on or after 1st January, 2005, the interest rate would be 2 per cent over and above the rate, as applicable to the deposits made for a period of five years under the Post Office Time Deposit Rules, 1981.
Modifications in Off-site Monitoring and Surveillance Input Module
Circular No. DBS.CO.OSMOS.BC.No.11/33.01.001/2004-05 Dated 28.12.2004: The existing Off-site Monitoring and Surveillance Input Module has been upgraded, so as to incorporate the new regulatory prescriptions in respect of NPA recognition norms, capital charge for market risk on trading book, non-SLR investments etc. into the DSB returns reporting framework.
Railway Board Secretariat Service (Amendment) Rules, 2004
Notification No. GSR842(E) Dated 21.12.2004: Vide this notification, the President, formulated the Railway Board Secretariat Service (Amendment) Rules, 2004, further to amend the Railway Board Secretariat Service Rules, 1969.
Department of Industrial Policy and Promotion
Patents (Amendment) Rules, 2005
Notification No. SO1418(E) Dated 28.12.2004: The Central Government, vide this notification, has brought to the fore, the Patents (Amendment) Rules, 2005, amending the Patents Rules, 2003. These Rules shall come into force, from the 1st day of January, 2005.
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