The alleged sole
proprietor of an Internet domain name registrant was not entitled to intervene
in a trademark owner's infringement action against the registrant absent
evidence supporting his claimed ownership interest. No documentary evidence
supported the claim, and it was contradicted both by allegations made by the
alleged proprietor in a prior lawsuit and by evidence that third parties had
conducted the registrant's affairs.
United Parcel
Service of America, Inc. v. Net, Inc.
A dental floss
manufacturer was entitled to a preliminary injunction in its action against a
mouthwash manufacturer for false advertising in violation of the Lanham Act. A
presumption of irreparable harm arose from the floss manufacturer's showing of a
likelihood of success on the merits of its claim that the mouthwash
manufacturer's direct comparisons of its product to dental floss were literally
false, and irreparable harm was also shown via a logical causal connection
between the floss manufacturer's sales position and the challenged statements
that using the touted mouthwash provided the same benefits as flossing. In
addition, the floss manufacturer proved a likelihood of success on the merits of
both its literal and implied falsity claims, given that the clinical studies
cited by the mouthwash manufacturer supported only the contention that using its
mouthwash was as effective as improperly- performed flossing, and only addressed
certain consumers.
McNeil-PPC, Inc. v.
Pfizer Inc.
The failure of a
national distributor for an automobile manufacturer to disclose, in an antitrust
action by consumers, the identity of its associate general counsel and assistant
secretary and the subject matter of his knowledge regarding the relationship
between the distributor and a vehicle financing company during discovery on the
distributor's defense under the Illinois Brick indirect purchaser rule did not
warrant the sanction of striking this witness's affidavit offered in support of
the distributor's motion for partial summary judgment. The fact that the
violation could be cured, the importance of the information to the distributor's
defense, and the minimal disruption that the nondisclosure was likely to cause
made it more appropriate to sanction the distributor by allowing the consumers
to depose the witness on an expedited basis, with the costs, excluding attorney
fees, to be borne by the distributor.
In re Mercedes-Benz
Anti-Trust Litigation
Insistence, by the
owner of patents for the automated performance of nucleic acid amplification on
thermal cyclers, that a seller of thermal cyclers take a supplier's license,
rather than end-user licenses for use by its customers, did not constitute an
improper exclusion from an essential facility, within the meaning of the Sherman
Act.
Applera Corp. v. MJ
Research, Inc.
In a matter of first
impression, the Court of Appeals ruled that a bank could set off the debtor's
deposit account upon default without first accelerating the debt, under terms of
a promissory note that allowed for alternative remedies of acceleration and
setoff. In this case, the bank received a garnishment from judgment creditors,
which was a default under the note, and set off the debtor's account without
first accelerating the debt.
Minnesota Voyageur
Houseboats, Inc. v. Las Vegas Marine Supply, Inc.
A toy maker's
employee's name on an 1997 email was a valid writing and signature to satisfy
California's statute of frauds, assuming that there was a binding oral agreement
between inventor and toy maker and that the email included all the material
terms of that agreement. Decisions from other states had relaxed the signature
requirement of the Statute of Frauds considerably to accommodate various forms
of electronic communication.
Lamle v. Mattel,
Inc.
A cruise line's
internet pop-up ad, that appeared on a computer user's computer screen while the
computer user was reading the travel section of a newspaper's website, was not
regulated by the provisions of a state statute that governed unsolicited
commercial e-mail. The clear language of the statute limited its scope to the
regulation of e-mail sent through an e-mail service provider to an e-mail
address. The pop-up ad was not sent to a specific e-mail address, but was
produced by the host website which directed the computer user's internet browser
to open another window and display particular content.
Riddle v. Celebrity
Cruises, Inc.
Denying certiorari,
the United States Supreme Court has let stand a Fifth Circuit decision that a
district court order denying a stay and declining to compel arbitration of a
maritime injury claim, based on a determination that the foreign arbitration
agreement upon which removal had been based was invalid, was not reviewable on
appeal. The order was not a conclusive determination, separable from the court's
remand order, and thus was subject to the statute barring appellate review of
orders remanding cases due to lack of subject matter jurisdiction. The petition
for certiorari stated that, in practical effect, the rulings in the courts below
were that an act of the Louisiana legislature nullifies a treaty of the United
States and that a district court remand order to that effect is immune from
appellate review.
Talmidge Intern.,
Ltd. v. Dahiya
An Internet service
provider, which merely provided the forum for independent third party vendors to
list and sell their merchandise, satisfied all of the requirements for copyright
protection under the safe harbor provision of the Digital Millennium Copyright
Act. The copyright holder, which never attempted to notify service provider that
the vendors were selling images that violated its copyrights, failed to show
either the service provider's actual knowledge or its apparent knowledge of
infringing material on its third party vendor platform, and the service provider
did not have the right and ability to control the infringing material.
Corbis Corp. v.
Amazon.com, Inc
The United States
Supreme Court has denied certiorari in a case in which a district court held
that a shipyard's valid maritime lien against a commercial fishing vessel did
not transfer to a replacement vessel but, rather, was extinguished when the
first vessel sank and could not be recovered. Although the vessel's owner
obtained new fishing permits for the replacement vessel based on confirmation of
the destroyed vessel's permit history (CPH), such permits and permit history did
not constitute "salvaged" appurtenances of the destroyed vessel to
which the maritime lien attached, the district court held. The Third Circuit
Court of Appeals affirmed on different grounds, holding that, assuming a
vessel's fishing history could be the subject of a maritime lien, the shipyard's
lien did not follow the transfer of the vessel's fishing history to the
replacement vessel since the shipyard did not provide services to the
replacement vessel. The petition for certiorari challenged the district court's
reasoning, arguing that maritime liens extend to salvaged appurtenances,
including appurtenances removed from a vessel, that any maritime lien is
enforceable by an in rem action, and that an appurtenance may solely constitute
the res of an in rem action.
Maine Shipyard &
Marine Railway, Inc. v. PNC Bank Delaware, Inc.
News
The Supreme Court of
Ukraine disposed of a petition challenging the results of the election for the
post of President of the country. Bohdan Yakubchyk, had been declared as the
winner of the presidential elections, he had himself forced a re run of the
elections after allegations of rigging had been leveled by him after the
original poll held in the month of November last year. The decision is final and
no appeals lie against it.
Saudi Arabia’s impleadment as party in the litigations arising out of the 9/11 incident in the
United States has been shot down by a US district court, it has been held that
the country and its diplomats enjoys diplomatic immunity and as such are immune
to legal proceedings launched against them. The litigations had been instituted
by family members of victims and survivors of the terrorist attack. It was also
held that banks used by the perpetrators of the attacks, for regular banking
transactions were in no way liable. Claim against Saudi Bin Laden Group was
allowed to be proceeded, however the extent of the liability of the Group will
only be determined after trial.
General Motors paid
a civil penalty of $1 million to settle charges that notifications of the
existence of a safety-related defect were not provided by the company. Some
vehicles manufactured and sold by General Motors had manufacturing defects,
which led to windshield wiper failure. These vehicles had been manufactured in
2002 and 2003.
The National Highway
Traffic Safety Administration accepted payment on July 22, 2004, but did not
announce the penalty until Dec. 29, when it published an annual roundup of civil
actions. Porsche and Ferrari paid civil penalties totaling more than $9 million
for failing to meet Corporate Average Fuel Economy limits.
Feedback