Chief Justice Warren Burger admonished the ABA in 1984, “Our litigation system is too costly, too painful, too destructive, too ineffective for a civilized people.” The Chief added, “For many claims trials by the adversarial contest must in time go the way of the ancient trial by battle and blood.” Copyright trademark and trade secret trials may be among the most expensive legal contests, and I am pretty sure the Chief would have recommended mediation.
The number of civil cases that reach trial in the federal courts is a very small percentage of the total cases filed; probably less than 5 percent. The road to settlement, however, can be long and very expensive. We can get these cases settled early on! Continue reading
The federal Lanham Act goes beyond trademark protection and establishes causes of action, as well, for unfair competition, false advertising, and false association. Section 43(a), however, does not contain a statute of limitations for claims that arise under the Lanham Act for any of these improper activities. That’s different from the Copyright and Patent Acts which each provide for limitations and apparently that’s the way Congress wants it.
Congratulations to our partner Jim Astrachan on being selected by The Daily Record as a 2022 Icon Honors recipient.
The Icon Honors recognizes Maryland business leaders over the age of 60 for their notable success and demonstration of strong leadership within and outside their fields. The honorees have moved their businesses and the state of Maryland forward by growing jobs and making a difference in the community.
This article originally appeared in the Association of Corporate Counsel: Baltimore’s Focus magazine (3Q2022, p. 7-9). Written by Jim Astrachan, Kaitlin Corey, and Donna Thomas.
A trademark infringement suit awarding Variety Stores $95 million dollars against Walmart is instructive as to what the courts in the Fourth Circuit require to establish trademark infringement and willful trademark infringement. Variety Stores, Inc. v. Walmart Inc., 852 Fed. Appx. 711 (4th Cir. 2021) (unpublished).
While the large monetary award has been resolved behind the scenes through a confidential settlement following Walmart’s successful appeal relating to the trial court’s jury instructions concerning whether Walmart acted willfully, the magnitude of the award and the Court’s explanation of what is required to establish trademark infringement are worthy of discussion. This is especially important for those who are called upon to advise their client about whether a trademark is clear and available for use. The analysis for clearing a trademark for use is similar to the analysis that applies to determining whether a client will succeed if it sues on the grounds of trademark infringement.
Law and Made to Order for the NMTC Board of Directors
Havre de Grace, MD – September 27, 2022 The NMTC is honored and pleased to have attorney Kaitlin Corey join its Board of Directors as Board Secretary and member of its four-person Executive Committee. Continue reading
The Texas Legislature enacted HB 20, a gobsmacking law, in September 2021, declaring social media platforms and interactive computer services to be “common carriers,” charged, as the bill reads, with a public interest of being “central forums for public debate.”
HB 20 defines social media as an internet website having more than 50 million users that is open to the public and allows users to create accounts to communicate with others through the posting of information, comments, and messages or images. Media giants like YouTube and Twitter are affected. A few days ago, the U.S. Court of Appeals for the 5th Circuit held the law to be constitutional and enforceable.
The recently enacted Trademark Modernization Act will help trademark owners enforce and preserve their rights against infringement. Remedies for infringement of a trademark includes monetary damages to compensate the mark’s owner for its pecuniary loss, including recovery of the infringer’s profits, and the owner’s damages. Continue reading
The embargo has been lifted and we are permitted to announce that Best Lawyers® has selected Donna M.D. Thomas and Jim Astrachan, once again, for its 2023 Edition of The Best Lawyers in America®. Continue reading