Gibbons Law Alert

Supreme Court Denies Certiorari in Trademark Challenge to Washington Redskins Name

On January 12, 2010

On November 16, 2009, the Supreme Court denied a petition for certiorari in the case of Harjo v. Pro-Football, Inc. The underlying action was brought by Native American activists (“Harjo”) who challenged the Washington Redskins’ right to register its team name and logos on the basis that they are scandalous, disparaging and may bring Native Americans into disrepute or contempt. Marks that do any of those things are not entitled to registration, as provided by Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a). The sole issue submitted for the Supreme Court’s review, however, was whether the activists’ claim was barred by laches, as found by the U.S. Court of Appeals for the D.C. Circuit. Under the Lanham Act, the grounds on which a trademark registration may be cancelled become limited once the registration has existed for five years. For example, after that point, no challenge may be brought on the basis that the mark is merely descriptive. However, the Lanham Act specifies that certain claims may be brought “at any time,” including that a mark is disparaging, that it has been abandoned, or has become generic. 15 U.S.C. § 1064(3). The issue submitted for the Supreme Court’s review arose out of a Trademark Trial and Appeal Board (“TTAB”) proceeding in which Harjo sought...

Copy Machine or Copy Service? “Volitional Conduct” and Direct Copyright Infringement

by Gibbons P.C.

Posted in Copyright / E-Commerce

On January 6, 2010

Is a technology provider liable for direct copyright infringement when it provides the means for infringement instructed by its users? In the Cablevision case, Cartoon Networks LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008), the Second Circuit endorsed a line of cases holding that the provider is not liable absent “volitional conduct” that causes the copying to take place. Two recent district court decisions in the Southern District of New York appear to have applied this rule in seemingly inconsistent fashion.

Hatch-Waxman Settlements: Under Attack on Many Fronts

by Gibbons P.C.

Posted in Patent / Pharmaceuticals

On January 6, 2010

Is an end coming for reverse payment settlements of Hatch-Waxman litigations?

The FTC, like Wile E. Coyote chasing The Road Runner, has been doggedly challenging settlements between brand name pharmaceutical companies and generics to resolve Hatch-Waxman litigations. Reverse payments settlements, which the FTC calls “pay-for-delay” deals, where Hatch-Waxman litigations are settled by the brand name drug company’s payment to the generics to stay off the market, have been the main target of the FTC since the late 1990’s. The FTC’s position is that reverse payments impermissibly thwart less expensive generic drugs from timely reaching consumers. While there is a circuit court split on the issue, the recent trend of courts, including the Federal Circuit, has been that reverse payments are acceptable because they are “within the exclusionary zone of the patent and thus [cannot] be redressed by federal antitrust law.” In re Ciprofloxacin (“Cipro”) Hydrochloride Antitrust Litig., 544 F.3d 1323, 1327 (Fed. Cir. 2008), cert. denied 129 S. Ct. 2828 (2009).

USPTO and Practitioners Discuss Disclosures from Similar Applications

by Gibbons P.C.

Posted in Patent / USPTO

On January 6, 2010

During a recent AIPLA-sponsored discussion at the USPTO, patent practitioners met with heads of various Technology Centers to discuss USPTO caseloads and recent events. One of the more interesting topics was the increasing number of disclosures from applicants in light of McKesson and more recent inequitable conduct cases and measures that may be taken by the USPTO and practitioners in response.

Changing the Climate for Greenhouse Gas Regulation: Decisions by Appellate Court and EPA May Help to Pave the Way for Comprehensive Federal Legislation

by Paul M. Hauge

Posted in Environmental and Green Issues

On December 25, 2009

Since late June, when the House narrowly passed the American Clean Energy and Security Act of 2009, the loud and rancorous debate over health care may have obscured another critical issue being considered by Congress: climate change and the regulation of greenhouse gas emissions. Decisions made public on successive days in September by a federal appellate court and the U.S. Environmental Protection Agency (EPA), however, may go a long way toward making wide-ranging federal controls over greenhouse gas emissions a reality.

Accounting for Greenhouse Gases and Global Warming in Financial Disclosures

by John H. Klock

Posted in Environmental and Green Issues

On December 3, 2009

A troika of decisions should send chills through the halls of many utilities and corporations. The first horse of the troika is the decision by the U.S. Supreme Court that says that the U.S. Environmental Protection Agency (EPA) has the authority to regulate greenhouses gases (GHG) under the Clean Air Act (CAA), 42 U.S.C. § 7401 et seq., and can be compelled to do so. The second horse is the decision by the Second Circuit granting states the power to abate GHG under the federal common law of public nuisance. The third horse is the decision by the Fifth Circuit that takes the final step and states that private citizens affected by global warming have the right to bring private nuisance suits.

Acquisition of Bad Debt Loans

by Shepard A. Federgreen

Posted in Development/Redevelopment

On November 30, 2009

Lenders, as we all know, continue to be saddled with under-performing and non-performing commercial real estate mortgage loans. A quick internet search will reveal that many are predicting future defaults on billions and billions of dollars of loans. Amongst many other implications for both the lending institutions and the economy at large, carrying these loans impacts reserve requirements and, in turn, available capital. Potentially, we have the makings of a classic “vicious cycle.”

EPA Proposes to Limit Greenhouse Gas Emissions from Largest Sources

by Paul M. Hauge

Posted in Environmental and Green Issues

On October 6, 2009

On September 30, just days after finalizing its new rule on mandatory reporting of greenhouse gas (GHG) emissions, EPA announced that it is proposing to use existing Clean Air Act provisions to limits such emissions from the largest sources of such emissions. The proposed rule, which focuses on sources that emit more than 25,000 tons of GHGs per year, would subject hundreds of new sources and modifications to existing sources to EPA review each year. In total, according to EPA, some 14,000 large sources would come under the proposed rule, which requires them to obtain operating permits that include limits on GHG emissions.