Jim Astrachan presented “Continuing Use: Avoiding Statutory Damages and Attorneys’ Fees.” at the Maryland State Bar Association’s Annual Meeting in June 2022. Jim’s slides are available here.
Author Archives: Jim Astrachan
An Award of Statutory Damages Under the Copyright Act for Post-Registration Infringements? It Depends.
Goodell DeVries partner Jim Astrachan published this article in the Drake Law Review. Full text is available here.
ABSTRACT
In many cases of copyright infringement, the plaintiff is only able to afford to bring an action for infringement if they are entitled to ask the court to award statutory damages and attorney’s fees should they prevail in establishing infringement. While there might be a connection between the amount of statutory damages a court may award, in its discretion, the profits of the infringer and the actual damages, if any, suffered by a copyright owner, 17 U.S.C. § 504(c) allows a court to award between $750 and $150,000 for each work infringed.1 The statute does not require the plaintiff to establish what actual damages they may have suffered from the infringement or what profits the defendant reaped.2
Airfacts, Inc. v. DeAmezaga: A Lesson in Drafting Trade Secret Agreements
Attorneys who draft confidentiality and non-disclosure agreements would be wise to become familiar with a recent trade secrets decision issued by the United States Court of Appeals for the Fourth Circuit. The case is AirFacts, Inc. v. Diego De Amezaga.
Commoners in the Land of Trademarks
One of the British tabloids has taken Meghan Markle to task because she wants to trademark “archetypes” for use in conjunction with her Spotify podcast. The tabloid defiantly asserts archetypes is 470 years old. So? They write she should not be entitled to own this word. She is, however, entitled to grab a word from the dictionary and use it as a trademark to the exclusion, in category, of anyone else’s use.
The Use of Proper Disclaimers in Ads
We review many ads that contain very prominent headlines designed to catch the consumer’s attention and draw her into the ad to buy the advertised product. You might ask, “What good is an ad that does not contain a prominent headline, intended to attract attention and draw in the consumer to purchase the advertised product?” Fair question.
But from time to time we see ads that really do not deliver what they purport to offer to the consumer; ads that employ both a bold headline to suck in the consumer and a disclaimer of the offered deal in the fine print, not proximate to the headline, to tell the consumer that what is advertised is not going to be provided. For example, a headline that offers a savings of 20% OFF EVERYTHING IN THE CATALOG, when, in fact, that ad contains a disclaimer, buried at the bottom of the ad in fine print that not “everything in the catalog” is 20% off; “restrictions apply.” Continue reading
Sometimes, Lighter is Better
Sometimes four eyes are better than two; and six are even better. This is how we feel when clearing ads for our clients, hopefully before they are presented to their clients, the advertisers.
There are really two things we want to apply accurately: The law and common sense. Just because an ad is legal does not mean it should be published. The idea that numerous people should review the ad is to address the sensitivities (or lack thereof) that some people may have, in which case a horribly embarrassing, and financially damaging ad, may be published.
Take the latest example, an ad for Heineken Light beer. In it, a bartender slides a bottle of Heineken Light towards a woman. The bottle passes several people of color before reaching a paler skinned woman. The tagline: SOMETIMES, LIGHTER IS BETTER. Continue reading
LVL XIII v. Louis Vuitton
Sellers of goods often will add a design element to their product and claim no competitor can copy its design, asserting it will violate trademark rights because the design element has become associated with the seller in the minds of consumers. In other words, the design element functions as a trademark. Take, for example, the solid red sole of the Christian Louboutin shoe.
Recently, LVL XIII, a seller of popular sneakers featuring a rectangular metal plate design on the toe, sued Louis Vuitton for using a similar metal toe plate design on its shoes. Continue reading
An Email Can Constitute “Commercial Advertising and Promotion”
The United States Court of Appeals for the Fourth Circuit recently issued an unpublished opinion adopting a three-factor test for determining whether a communication is “commercial advertising or promotion” for purposes of a Lanham Act false advertising claim. It is unclear why this decision was not selected for publication. Continue reading