Arnstein & Lehr Intellectual Property Law Newsletter Winter 2009

8/14/2019 Arnstein & Lehr Intellectual Property Law Newsletter Winter 2009

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A r n s t e i n & L e h r i n t e L L e c t uA L P r o P e r t y n e w s L e t t e r | w i n t e r 20 0 9

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Federal Circuit reuses registratio

to Hotels.com as generic

Seventh Circuit redefnes

photographers copyright interest

PHOTOGRAPHER Continued on Page 3

Single word .com domain names are popular as they are easy

remember. However, if that single word is the generic word for

goods or services being offered, such as cruise, tea, jewelr

or the like, adding .com to that word is probably not going to c

ate a composite word that will be a registrable trademark. The U

Court of Appeals for the Federal Circuit has issued several decisi

refusing registration to such composite terms as generic, despite e

dence that the applicant provided to show that the public perceiv

the proposed mark as distinctive and indicative of the source of

goods or services.

The Federal Circuit recently issued another such decision, conclud

that HOTELS.COM is generic and non-registrable for the servi

of providing information for others about temporary lodging; tra

agency services, namely making reservations and bookings for te

porary lodging by means of telephone and the global computer n

work. The decision relied in part onIn re Reed Elsevier Props. In

482 F.3d 1376 (Fed. Cir. 2007), in which the Federal Circuit pre

ously denied registration for LAWYERS.COM because the term w

generic for online database services featuring information excha

in the elds of law, legal news and legal services.

In this case, the trademark examiner denied registration to Hot

com LP for HOTELS.COM because it was merely descriptive

hotel reservation services and there was insufcient evidence tha

had acquired distinctiveness. The examiner indicated that the m

might also be generic for those services but did not make that de

mination. The signicance of a generic nding is that, although

possible to register a descriptive term (either on the Principal Regi

with evidence that the mark has acquired distinctiveness or on

Supplemental Register without such evidence), a generic term can

be registered.

HOTELS.COM Continued on Page 2

In Gracen v. Bradford Exchange, 698 F.2d 300 (7th Cir. 1983), the

U.S. Court of Appeals for the Seventh Circuit appeared to suggest

that the creator of a derivative work (a work based on one or more

preexisting works, such as an art reproduction or other form in

which a work is recast, transformed or adapted) needed permission

from the owner of the copyright in the preexisting underlying work

in order to register a copyright in the derivative work. The Court

has now claried that a photographer who creates photos depicting

copyrighted subject matter with the owners permission has a legal

right to register the copyright in those photos, as long as the photos

satisfy the other requirements for a copyright registration and the

parties did not have an agreement providing otherwise.

The controversy concerned photos taken by Daniel Schrock, a pho-

tographer hired by Learning Curve International to take photos of

its licensed Thomas & Friends toy train gures for use in pro-

motional materials. After Learning Curve stopped using Schrocks

services but continued to use some of the photos in promotional

materials, Schrock registered copyrights in the photos and sued

Learning Curve and its licensor, HIT Entertainment, for copyright

infringement.

The U.S. District Court for the Northern District of Illinois granted

summary judgment to Learning Curve and HIT on the basis that

Schrock did not own the copyrights in the photos and could not reg-

ister them (registration is a prerequisite to a copyright infringement

suit). The court held that the photos were derivative works of

the Thomas & Friends characters, owned by HIT, and that Schrock

needed Learning Curves permission to register copyrights in the

photos.

In reversing that decision, the Seventh Circuit assumed without de-

ciding that the photos were indeed derivative works and concluded

that the right to register the copyright for a derivative work arises


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w w w . A r n s t e i n . c o m

2

HOTELS.COM Continued from Page 1

On appeal to the Trademark Trial and Appeal Board (TTAB),

Hotels.com argued that HOTELS.COM is not generic because

Hotels.com does not provide lodging and meals for its web site

users and the examiner did not carry the heavy burden of proof of

showing that the term was generic. Hotels.com further contended

that HOTELS.COM had become a term widely accepted and rec-ognized by the public and has thereby gained distinctiveness (or

secondary meaning).

Hotels.coms evidence included 64 declarations from customers,

vendors and competitors stating that the term HOTELS.COM was

not a common or generic name of any product, service or eld of

study. It also submitted a national probability double blind tele-

phone survey (of the type used to show that Teon was not

generic) that resulted in its experts conclusion that approximately

76% of respondents regarded the mark HOTELS.COM as a brand

name for a business that makes hotel reservations and provides in-

formation about hotels. However, the TTAB rejected the declara-

tions because they were identical form documents that did not ex-plain the conclusion. It rejected the survey results on the grounds

that the methodology did not adequately instruct the consumers in

the difference between a brand name and domain name.

The TTAB also analyzed the dictionary, encyclopedia and thesau-

rus denitions of hotel, temporary lodgings, and .COM in

concluding that HOTELS.COM was a generic term for the ser-

vices. In addition, the TTAB considered various other domain

names that contain the term hotel, as well as other web sites that

provide hotel information and reservation services and found that

it is clear from the website and promotional materials of the ap-

plicant as well as the websites of third-parties that consumers who

are interested in nding information about hotels or making res -ervations at hotels, would immediately understand that HOTELS.

COM identies a website that provides such services. The TTAB

found that, to be competitive, third parties need to use the word

hotel as part of their own domain names. It reasoned that the

word hotels, as included in a domain name, indicates the genus

of hotel information and reservation services and thus supports the

determination that HOTELS.COM is generic.

On appeal to the Federal Circuit, Hotels.com argued that the

TTABs reasoning was awed because the contested term is not

simply the single word hotels but the composite term HOTELS.

COM. It pointed out that HOTELS.COM is used to indicate an

information source and travel agencysomething other than theplain meaning of hotel - so HOTELS.COM is not a generic term

for a hotel such that addition of .com negated a genericness

nding.

The Federal Circuit found that the TTAB considered that hotels

were the focus and a key aspect of the services and had re-

viewed Hotels.coms advertisements, where it appeared that HO-

TELS.COM had the same meaning as the word hotels by itself.

The Court concluded that the TTAB correctly separated the word

hotel from the sufx .com, which would not add to the regis -

trability of the term. The Court concluded that addition of .com

to hotel did not produce a new meaning in combination and did

not indicate source, only that Hotels.com operates a commercial

Internet web site that provides information about hotels.

Although the Court did not specically consider whether the sur-

vey evidence was sufcient to show secondary meaning, it consid-

ered the entirety of the evidence before the TTAB, including the

large number of similar usages of hotels with a .com sufx,

in addition to the ordinary meaning and dictionary denition of

hotels, combined with the standard usage of .com to show a

commercial internet domain, and found that there was sufcient

evidence before the TTAB to support its ndings that the mark was

indeed generic.

It appears that the Federal Circuit will not deviate from the po-

sition that even strong evidence of secondary meaning will notsave a .com mark joined with a generic term. Most recently,

the Court applied both the LAWYERS.COM and the HOTELS.

COM cases to reject registration of 1800MATTRESS.COM as

generic. In Re 1800MATTRESS.COM IP, LLC., 2009 U.S. App.

LEXIS 24383 (Nov. 6, 2009). It has long been the position of

the U.S. Patent and Trademark Ofce (USPTO) that addition

of a top level domain name such as .com, .net or .org will not add

to the registrability of a mark, because such terms are merely de-

scriptive of Internet commerce. Trademark Manual of Examining

Procedures 1209.03(m). However, the USPTO does recognize

that there could be rare cases where addition of a top level domain

could improve the registrability of a mark.

An ironic note was that the TTAB disagreed with the examiner that

the evidence of secondary meaning was insufcient. If the Federal

Circuit had concluded that the mark was merely descriptive rather

than generic for the services and sent the case back to the TTAB,

the Board would have approved the application based on the mark

having acquired distinctiveness.

Source: In re Hotels.com, 573 F.3d 1300 (Fed. Cir. 2009)


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This trademark infringement and breach of contract action

demonstrates the importance of clearly spelling out, in detail, the

intent of the parties in every trademark licensing transaction.

J.A. Apparel Corp. (JA) thought it was unambiguously obtaining

exclusive rights to market mens clothing under the Joseph Abboud

name when it purchased from the world-famous designer and

philanthropist the commercial use of the name Joseph Abboud,

and trademarks containing that name for $65.5 million. Abboud,

however, had other ideas.

Since 1988, JA manufactured, marketed and sold products using

Joseph Abboud trademarks under a license from Abboud.

New licenses were issued to JA by Abboud in 1996. In 2000,

Abboud sold certain assets to JA, including the names, trade

names, service marks, logos, insignias, and designations, relatedtrademark registrations and applications and all other Intellectual

Property. The agreement dened Intellectual Property as all

of the trademark registrations, service mark registrations and

applications and copyright registrations and applications currently

used by [Abboud] in connection with the Trademarks. JA and

Abboud also entered into a personal service agreement under

which Abboud agreed not to compete with JA until 2007.

Near the end of Abbouds non-compete period, he made plans

to market a new line of high-end mens clothing under the

brand jaz and to use his name in advertising that line so that

customers would know he was the designer. JA objected because

it believed that it had purchased all rights to use the Abboud namein connection with the sale of mens clothing.

The U.S. District Court for the Southern District of New York

agreed with JA that the agreement was unambiguous and therefore

refused to consider Abbouds evidence about the meaning of the

provisions in the agreement. The District Court ruled in JAs

favor, concluding that JA received all of Abbouds rights to use

his name for commercial purposes and that Abbouds planned

use of his name to market the jaz line constituted both breach of

contract and trademark infringement. Although Abboud believed

that using his name to advise consumers that he was the source

of the new goods was a descriptive fair use, the District Court

felt that consumers would be utterly confused about whetherJoseph Abboud products by JA and jaz products by Abboud

came from the same source. Abboud was enjoined from using

his personal name to sell, market, or otherwise promote, goods,

products, and services to the consuming public.

However, on appeal, the U.S. Court of Appeals for the Second

Circuit reversed and remanded the case to the District Court

for further proceedings. The Second Circuit determined that the

Clothing designer can use hisname in competition with ownero trademark rights

by operation of law, not through the authority of the owner of the

copyright in the objects depicted in the photos. The Court cor-

rected the impression given in Gracen that such permission was

necessary. Rather, the author of a derivative work owns a copy-

right in the incremental expression contributed to that work, ex-

tending to the material contributed by the author of that work, notto any preexisting material employed in the work. That copyright

may be thin, as it extends only to the original expression created

by the author.

The Court also claried another statement in Gracen it said had

been misapplied that there was a heightened standard of

originality in a derivative work that required the work to be sub-

stantially different from the underlying work in order to be copy-

rightable. Derivative works, noted the Court, need not contain any

more originality than necessary to distinguish them from public

domain or other existing works in some meaningful way. As the

Court found that Schrocks photos contained that much original-

ity, they were copyrightable. A photographs originality can lie inthe effect created by the photographers choices of perspective,

angle, lighting, shading, focus, lens and the like. Only in cases

where the goal is to reproduce the underlying work exactly, such

as in slide transparencies of paintings, would there be insufcient

individual expression to constitute originality. Photographs can

still constitute original work even if they are intended, as here, for

a purely utilitarian commercial use. Even accurate product photos

can therefore be copyrightable.

Because the Court could not determine from the record on ap-

peal if the parties agreements and other dealings (1) prohibited

Schrock from registering the copyright in his photos or (2) gave

Learning Curve an implied license to keep using the photos, theCourt sent the case back to the district court for additional pro-

ceedings. A contract provision barring registration of a copyright

could override what the photographer might otherwise be allowed

to do under the Copyright Act.

As noted in the opinion, there is disagreement in the courts over

whether photographs of a copyrighted work are actually deriva-

tive works or are original works. The Seventh Circuit declined to

decide the question in this case but merely assumed that they were

derivative works for purposes of the decision.

If the photographs had constituted works for hire, the owner of

the copyright in those photos would have been Learning Curveor HIT (depending on the agreements between those parties), not

Schrock. However, that was not an issue in the case. Photographs

are not specically mentioned among the categories of works in

Sec. 101 of the Copyright Act that can be dened as works made

for hire, although they could be t into the dened category of a

collective work in the right case.

Source: Schrock v. Learning Curve International, Inc., U.S. Court of Ap-

peals for the Seventh Circuit, No. 08-1296, November 5, 2009

PHOTOGRAPHER Continued from Page 1

DESIGNER Continued on Page 4


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In reviewing a challenge to MGA Entertainment, Inc.s (MGA)

Bratz dolls unrelated to Mattels widely-publicized suit (Bryan v.

Mattel, Inc., U.S. District Court for the Central District of California,

No. CV 04-9049, December 3, 2008), the U.S. Court of Appeals for

the Ninth Circuit has upheld a judgment in favor of MGA.

Since, 1993, Art Attacks, a small airbrush art business primarily spe-

cializing in custom-made T-shirts, had sold T-shirt designs from

booths at county fairs, as well as at a few Wal-Mart and other stores

in Arizona and California. One of Art Attacks best selling designs

was its Spoiled Brats character concept, copyrighted in 1996. The

Spoiled Brats character designs, which could be tailored to resemble

individual customers, featured cartoonish, predominately female

characters with oversized eyes, disproportionally large heads and feet,

makeup and bare midriffs.

MGA began selling dolls under the name Bratz in 2001. The dolls

also featured oversized eyes, disproportionally large heads and feet,makeup and bare midriffs. In 2004, Art Attacks led suit against

MGA alleging trademark, trade dress and copyright infringement. A

jury found for MGA on the trademark claim, but could not reach a

verdict on the remaining claims. MGA then moved for judgment as

a matter of law and the district court judge granted the motion. The

Ninth Circuit agreed with the district court that Art Attacks failed to

demonstrate that MGA had access to copyrighted works or that Art

Attacks designs constituted distinctive trade dress that had acquired

secondary meaning.

As Art Attacks had no direct evidence of copying by MGA, proof

that MGA had access to the Spoiled Brats designs was necessary.

See Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000).A copyright owner must show a reasonablepossibility, not merely a

barepossibility, that an alleged infringer had the chance to view the

protected work to prove access. If, as here, there is no direct evi-

dence of access, circumstantial evidence may be used to prove access

by either (1) establishing a chain of events linking the owners work

to the alleged infringer or (2) showing that the owners work has been

widely disseminated.

However, the Ninth Circuit found that Art Attacks had failed to

prove MGAs access to the Spoiled Brats designs through either form

of circumstantial evidence. Art Attacks neither established a chain

of events linking its copyrighted works to MGA nor showed that its

protected work had been widely disseminated.

Although an MGA designer testied that she may have attended the

Los Angeles County Fair between 1998 and 2001, when Art Attacks

was displaying the Spoiled Brats designs, Art Attacks could not prove

that the designer actually visited the Los Angeles County Fair during

that relevant time period or that the designer ever saw Art Attacks

booth. The Court noted that there could have been a minimal chance

that the designer did visit the fair sometime during the relevant time

period but that such a chance did not create a reasonable possibil-

ity of access under the chain of events theory.

agreement between JA Apparel and Abboud was ambiguous

enough to require consideration of Abbouds evidence about the

meaning of the contract terms and his fair use defense. Where

contract language is unambiguous, the parties intentions cannot

be determined using evidence outside the words of the contract.

However, when contract language is ambiguous, evidence outsideof the contract language, including evidence of the parties intent,

can be used.

The Second Circuit did

not nd any provision

in the agreement

specically transferring

all of Abbouds rights

to use his name to refer

to himself in a non-

trademark sense for

commercial purposes,

as opposed to thetransfer of brand names.

The agreement did not

provide unambiguously

for exclusive use of

the names Abboud

and Joseph Abboud

outside the use of those

names in trademarks,

nor did it prohibit

Abboud from making non-trademark use of his name after the

expiration of his non-compete agreement. The District Court must

therefore consider Abbouds evidence of the parties intentions in

using the term names in deciding whether Abboud breached thecontract.

The Second Circuit also directed the District Court to reconsider

Abbouds fair use defense in the context of the actual advertising

mock-ups presented by the parties, and to determine whether

Abbouds use was (1) other than as a mark, (2) in a descriptive

sense, and (3) in good faith.

J.A. Apparel might have anticipated when it signed the deal in 2000

that Abboud, who was just 50 years old at the time, might wish to

return to the fashion design world when his non-compete expired

seven years later. The decision is also instructive for licensees

whose business depends on the exploitation of valuable brands.Had J.A. Apparel considered this possibility, the agreement could

have been drafted to avoid this expensive and unfortunate result.

Source: J.A. Apparel Corp. v. Joseph Abboud, U.S. Court of Appeals for

the Second Circuit, No. 08-3181-CV, June 10, 2009

Ninth Circuit Court examines required

proo o access to copyrighted workDESIGNER Continued from Page 3


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Art Attacks argued that the Spoiled Brats designs were widely dis-

seminated in three ways: (1) on the Art Attacks booth; (2) on Spoiled

Brats T-shirts, which serve as walking billboards; and (3) via the

Internet on its web site.

Art Attacks displayed Spoiled Brats images along with their other

designs on the walls of its 20 x 10 fair booths, on store kiosks andin a binder on the booths counter. Although there was evidence that

millions of people had attended the relevant county fairs, Art Attacks

had no evidence of how many people noticed the Art Attacks booths

among all the others. As for whether the T-shirts served as walking

billboards, the Ninth Circuit previously held that a video that sold

19,000 copies over a thirteen-year period could not be considered

widely disseminated and that book sales of no more than 2,000 cop-

ies nationwide and no more than 700 copies in Southern California

did not create more than a bare possibility of access. See Rice v. Fox

Broadcasting Co., 330 F.3d 1170, 1178 (9th Cir. 2003); Jason v. Fonda,

698 F.2d 966 (9th Cir. 1982). Art Attacks contended that books and

videos require more attention to view than T-shirts but, on average,

Art Attacks only sold about 2,000 Spoiled Brats T-shirts per year.The Ninth Circuit concluded that approximately 2,000 T-shirts per

year were insufcient to demonstrate that the Spoiled Brats designs

were widely disseminated, no matter how little attention was required

to view a design on a shirt.

Art Attacks also attempted to argue that by maintaining a website

it had widely disseminated the Spoiled Brats designs. But in 1996

the website took two full minutes to load due to all the images it

contained. The Spoiled Brats design was only one of several images

on the page, an image that could not be viewed unless the reader

scrolled down the page after waiting for it to load. Most importantly,

the website did not contain metatags to identify the Art Attacks

site to Internet search engines. Without metatags, a potential viewerwho typed Spoiled Brats into a search engine probably would not

have been led to Art Attacks website.

The Ninth Circuit found that a reasonable jury could not have con-

cluded that there was more than a bare possibility that MGA had

access to Art Attacks Spoiled Brats designs, not the required reason-

able possibility that MGA had viewed the protected work. Thus, Art

Attacks was unable to establish access to the copyrighted works by

MGA.

The Ninth Circuit also rejected Art Attacks contention that its prod-

uct design constituted trade dress that had acquired distinctiveness

in the mind of the public, because there was no evidence that Art

Attacks had made exclusive use of the alleged trade dress. In addi-

tion, the Ninth Circuit rejected the probative value of evidence of

actual public confusion between the Art Attacks and MGM designs

because the witnesses were Art Attacks employees and personal

friends of its founder.

Source: Art Attacks Ink, LLC v. MGA Entertainment Inc., U.S. Court of

Appeals for the Ninth Circuit, No. 07-56110, September 16, 2009

When a company that holds a copyright or patent license merges

with another company, the parties might not consider whether the

merger constitutes a legal transfer of the license that requires the

approval of the copyright or patent owner. After all, the licensedinvention or copyrighted work might still be used by the same

personnel at the same location as prior to the merger. However,

the U.S. Court of Appeals for the Sixth Circuit has ruled that such

a merger constitutes an invalid license transfer resulting in copy-

right infringement, whether the license contains a clause requiring

the licensor to agree to transfer of the license and whether state

law considers the merger to cause the license to transfer.

Cincom Systems, Inc. develops, licenses and services software.

Cincom licensed two of its copyrighted software products to Alcan

Rolled Products Division for use on a single designated computer

in Alcans facility in Oswego, New York. Both companies were

Ohio-based. Ohio law governed the interpretation and enforce-ment of the license. The license barred Alcan from transferring its

rights without Cincoms prior written approval.

Through a long series of internal restructurings, mergers and a

name change among related companies, Alcan became a part

of Novelis Corp. The licensed software never left the licensed

computer in the Oswego facility but Alcan ceased to exist and

the facility and computer became Noveliss property as a result of

the mergers. Alcan did not seek or obtain Cincoms authorization

before undergoing the restructure. When Cincom discovered the

mergers, it sued Novelis for copyright infringement, contending

that the mergers caused the license to be transferred to Novelis

without Cincoms permission. The U.S. District Court for theSouthern District of Ohio agreed and entered a judgment for near-

ly $460,000, an amount equal to Cincoms initial licensing fee.

On appeal, Novelis argued that the transfer was lawful because

Novelis was not a competitor of Cincom and Cincom could not

object to a mere internal corporate reorganization. Novelis also

contended that, under Ohio law, Alcans merger did not result in a

transfer of the license.

The Sixth Circuit held that its previous decision in PPG Indus-

tries, Inc. v. Guardian Industries Corp., 597 F.2d 1090 (6th Cir.

1979) governed this case. InPPG, the Court found that a com-

pany that received a patent license in a merger was an infringer

because Ohio law provided that licenses automatically transferred

to and vested in the successor company in a merger and the license

required written consent of the patent owner prior to a transfer. In

addition, the Court determined that, as a matter of federal com-

mon law, a patent or copyright license is presumed to be non-

assignable and non-transferable if there are no express license

provisions to the contrary. Because Ohio law, whatever its nature,

cannot override federal law, Ohio law cannot authorize transfer of

Copyright licensees merger without

licensors approval causes inringement

COPYRIGHT Continued on Page 10


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In 2002, Lucent Technologies, Inc. sued Gateway, Inc. for patent

infringement over a method for entering information into elds on

a computer screen without using a keyboard. Microsoft intervened

in the case. The jury rejected Microsofts claim that the patent

was invalid and found that Microsoft infringed some of the patent

claims in suit. The jury awarded Lucent nearly $358 million in a

lump-sum royalty payment as damages for infringement related

to Microsofts Outlook program and two other applications, Mi-

crosoft Money and Windows Mobile. The infringing feature was

called the date picker, a calendar tool allowing a user to choose

a date and enter it into a eld in an appointment form without typ-

ing the date on a keyboard. Microsoft moved for judgment as a

matter of law but the U.S. District Court for the Southern District

of California upheld the jurys verdict.

The U.S. Appeals Court for the Federal Circuit afrmed the jurys

verdict that the patent claims at issue were not obvious and that

Microsoft had infringed the patent. However, the Court held that

the damages award was not supported by substantial evidence andsent the case back for new trial on the damages issue.

The federal Patent Act provides that patent infringement damages

should be adequate to compensate for the infringement, but in

no event less than a reasonable royalty for the use made of the

invention by the infringer. 35 U.S.C. 284. Two methods for

determining damages are the patent owners lost prots and the

reasonable royalty the owner would have received if the parties

had bargained for a license prior to the infringement. In this case,

the parties chose the reasonable royalty method, with Lucent ask-

ing for a running royalty based on ongoing sales or usage of the

patented method and Microsoft presenting evidence that the dam-

ages should be no greater than a $6.5 million lump-sum, paid-uproyalty.

The Federal Circuit observed that the hypothetical negotiation em-

ployed in determining a reasonable royalty necessarily involves

an element of approximation and uncertainty. Nevertheless, in

assessing the evidence supporting the nearly $358 million verdict,

the Court concluded that there was an insufcient basis for award-

ing what amounted to an 8% royalty on the sales price of the Out-

look program for infringement by the date picker, a tiny feature of

that program.

Applying the damages factors set forth in Georgia-Pacifc Corp.

v. U.S. Plywood Corp., 318 F. Supp. 1116 (S.D.N.Y. 1970), theFederal Circuit compared the licenses Lucent had placed in evi-

dence to Microsofts specic Outlook product and concluded that

the hypothetical license Lucent and Microsoft would have reached

was not sufciently comparable to those licenses for the licenses

to have supported the jurys damage award. In particular, Lucent

provided no evidence for how often the patented method would be

used by Microsofts customers and little testimony explaining how

license agreements structured with running royalties could be used

to prove what lump-sum payment the parties would have accepted

Federal Circuit dissects use o licenses to prove damages or patent inringement

in the hypothetical negotiation.

The Court observed that a minimally-used feature, such as the

date picker, would usually support a lower lump-sum royalty pay-

ment than a feature expected to be used more frequently in the

licensed product. Because Lucent did not introduce any evidence

of expected use of the date picker feature, the jury had no support

to conclude that the parties would have estimated that it would

be frequently used or so highly valued as to command a payment

amounting to 8% of the sales price of the Outlook program.

According to

the Federal

Circuit, the

eight license

agreements

in t roduced

into evidence

by Lucent

were radi-cally differ-

ent from the

hypothetical

a g r e e m e n t

at issue and

the Court

could not de-

termine the

value of the

others because their subject matter was unknown. Of the lump-

sum agreements provided by Lucent, none approached the size of

the jurys award and they were directed at situations vastly dif-

ferent than the Microsoft Outlook program or at situations thatcould not be determined from the testimony. A lump-sum dam-

ages award, noted the Court, requires more than an expert wit-

nesss supercial testimony about royalty numbers, particularly

without any explanation of how the technology of those licenses

compares to the technology in the case.

The four running royalty licenses that Lucent introduced to sup-

port the jurys verdict were fundamentally different from the Mi-

crosoft situation. Although a running royalty license can be used

as a basis to award lump-sum damages, the jury must hear testi-

mony about how to recalculate the value of those running royalties

to arrive at a lump sum award. None of the licenses introduced as

evidence supported the size of the jurys award.

Nor did the nature of the patented invention, the character of Lu-

cents commercial embodiment or the benets to users support

the award, where the infringing feature was a tiny element of one

part of the much larger and complex Outlook program with hun-

dreds of other features. Thus, the Federal Circuit concluded that

most of Microsofts prot from the Outlook program was attribut-

able to non-patented elements. That glaring imbalance must be

factored into the analysis of how much prot can be attributed to


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7

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the exceedingly small use of the data picker feature.

AnotherGeorgia-Pacifc factor is the extent to which the infringer

has made use of the patented invention and the value of that use.

Although the hypothetical negotiation is assumed to take place

prior to any infringement, the Federal Circuit noted that facts oc-

curring after the date of the infringement begins, such as how often

the invention has been used by infringers, can be considered. Al-though the parties to the hypothetical negotiation would not have

precise data about future usage of the invention, they could have

rough estimates. That information could be considered by the jury

but, in this case, there was no such evidence so the damage award

was not correlated to the extent that consumers used the infring-

ing data picker method. Although substantial evidence supported

the jurys verdict that Microsoft infringed, there was no evidence

about how many consumers used the invention or how many times

they did so. Moreover, Lucent did not show that the data picker

was the basis for customer demand for the Outlook program, so

the jury could not base its damage award on applying a royalty

percentage to the Microsofts entire sales of the Outlook program

(the entire market value rule) without applying a royalty rate inproportion to the size of the data picker feature in relation to the

entire Outlook program.

As the Federal Circuit held that no reasonable jury could have

found that Lucent provided enough evidence to support nearly

$358 million in damages, the Court returned the case to the district

court for a new trial on the damages issue.

Although the Federal Circuit was careful to recognize that compa-

nies in the high-tech computer industry often make licensing deals

that do not link the royalty paid to the number of times consumers

could be expected to use a patented feature, this decision returns

many times in the course of the analysis to the importance of suchevidence and its absence in the trial record. Patent owners who

may wish to rely on a reasonable royalty theory of damages should

keep that in mind.

Source: Lucent Technologies, Inc. v. Gateway, Inc., U.S. Court of Ap-

peals for the Federal Circuit, Nos. 2008-1485, 2008-1457, 2008-1495,

September 11, 2009

South Dakota considers Lanham Act

abandonment test or state

trademarksSection 45 of the Lanham Act (15 USC 1127) provides a rebut-

table presumption that a trademark has been abandoned when the

mark has not been used for three years. Although not adopting thatpresumption, the South Dakota Supreme Court has considered it in

the context of state trademark registrations.

Dakota Industries, Inc. (DI), a manufacturer of outerwear prod-

ucts, registered the trademark DAKOTA for its products with the

Secretary of State of South Dakota in 1968 and renewed that regis-

tration in 2006. When Cabelas.com, Inc. (Cabelas) sold cloth-

ing using Dakota Vest and Dakota Jacket, DI sued Cabelas

for state trademark infringement. Cabelas moved for summary

judgment, claiming that DI had abandoned the mark by failing to

make or sell any DAKOTA-branded goods after 1997 and failing

to collect royalties from licensees after 2001.

The trial court granted judgment to Cabelas, nding that DI had

not rebutted the evidence of abandonment. DI appealed, and the

South Dakota Supreme Court afrmed that decision.

Although the Supreme Court acknowledged that abandonment is

a defense to trademark infringement which the alleged infringer

has the initial burden to establish, the Court noted that once that

initial case of abandonment has been made, the trademark owner is

required to respond to that evidence with specic facts from which

current use of the mark can be shown or inferred.

Cabelas produced evidence from DIs business records that DI

had not sold any DAKOTA-branded products or collected any roy-alties from licensees of its DAKOTA mark from 2001-2006. Ca-

belas also produced the deposition testimony of DIs CEO that DI

had not made or sold any DAKOTA-branded products after 1997

and that the DAKOTA mark had not been used or licensed by DI

since 2000. DIs CEO had also testied that he was not going

to waste any time or efforts determining whether DIs licensees

were continuing to use the mark or even continued to exist.

That evidence, the Supreme Court observed, was sufcient to

make a prima facie case of abandonment, requiring DI to come

forward with specic facts about its current use of the mark. The

Court noted that although the South Dakota trademark statute au-

thorized the Secretary of State to cancel a state trademark regis-tration that has been abandoned, the statute did not provide any

particular period of non-use that would constitute abandonment.

The trial court had looked to the federal Lanham Act for guidance.

The trial court did not adopt the Lanham Acts three-year non-use

presumption but also considered that DIs non-use stretched for

almost six years.

DI contended that it had not abandoned the mark during either a

DAKOTA Continued on Page 10


8/12


8

The U.S. Court of Appeals for the Ninth Circuit has allowed Par-

is Hilton, the controversial heiress who is said to be famous for

being famous, to proceed with her lawsuit against greeting card

giant Hallmark, based on a birthday card captioned Pariss First

Day as a Waitress. The Hallmark card portrayed a cartoon wait-

ress with a super-imposed photograph of Hiltons face, serving aplate of food to a restaurant customer. Hilton says Dont touch

that, its hot, the customer replies Whats hot? and Hilton re-

sponds Thats hot. Inside the card reads Have a smokin hot

birthday. The setting of the card is allegedly based on an episode

of Hiltons reality television show The Simple Life, in which

she was employed as a waitress at a fast food joint, and often

uttered her signature phrase Thats hot [registered by Hilton as a

trademark for clothing and pending registration as a trademark for

alcoholic beverages].

Hilton sued Hallmark for misappropriation of publicity under Cali-

fornia common law, false designation of origin under the Lanham

Act, 15 U.S.C. 1125(a), and infringement of a federally regis-tered trademark. The U.S. District Court for the Central District of

California dismissed the trademark infringement claim but allowed

the other claims to proceed.

Hallmark also moved to strike Hiltons right of publicity claim

under Californias anti-SLAPP statute (Cal. Civ. Proc. Code

425.16). SLAPP stands for strategic lawsuit against public par-

ticipation. Anti-SLAPP laws provide a remedy against suits that

are brought primarily to chill the valid exercise of the constitutional

rights of freedom of speech and petition for redress of grievances.

For an anti-SLAPP motion to be successful, the defendant has to

show that the plaintiffs claim was brought under state law, that the

claim arose from the defendants protected conduct (such as free

speech in connection with a public issue) and that the plaintiff does

not have a probability of success on the merits of the claim. The

claim must be both legally sufcient and supported by enough facts

that a judgment could be sustained if those facts were believed.

The District Court denied Hallmarks motion because it required

resolving too many factual issues and Hallmark appealed.

The Ninth Circuit determined that the birthday card qualied

as speech under First Amendment law and that the sale of the

birthday card was in connection with a public issue or an issue of

public interest. Although, the California Supreme Court has not

clearly established what constitutes an issue of public interest, the

anti-SLAPP statute should be interpreted broadly in light of its pur-

pose to encourage participation of matters of public importance orconsequence. Hilton admitted that she is a celebrity whose doings

interest many people but she argued that her garden variety pri-

vate dispute over who prots from her image does not implicate

an issue of public interest.

After looking to decisions of the California appellate courts for

guidance, the Ninth Circuit concluded that the statute did not re-

quire the defendants activity to involve questions of civic concern.

The topic of the free speech can be a celebrity like Paris Hilton.

It need not be a subject of some dened debate -- social or low-

Ninth Circuit rejects Hallmarks anti-SLAPP challenge to Paris Hiltons suit brow topics are sufcient. As

Hilton is a person in the public

eye and a topic of widespread,

public interest, and because

Hiltons career is something of

concern to a substantial numberof people, Hallmarks birthday

card constituted free speech in

connection with a public issue

or an issue of public interest.

Although the public interest is

not the same as mere curiosity about a public personage, if the

activities of the celebrity are public they become a public issue.

In this case, Hallmarks card spoofed Hiltons public persona and

signature phrase, not some private detail of Hiltons personal life.

Hallmark was not required to show that its card commented on

an ongoing public controversy as Hiltons lifestyle and signature

phrase are matters of widespread public interest.

Because Hallmarks threshold showing was made, the Court next

analyzed the probability that Hiltons claim of misappropriation of

her right of publicity would succeed, noting that the required prob-

ability of prevailing need not be high. If Hiltons right of publicity

claim has even minimal merit, the Court noted, it is entitled to

proceed. Hallmark contended that even if Hilton had a minimal

claim for misappropriation of her right of publicity, Hallmark had

two winning defenses --transformative use and public interest

that would defeat her claim. If a celebrity likeness is only one of

the raw materials from which a creative work is made, that use of

the celebrity likeness is transformative. If the depiction of the

celebrity is the very sum and substance of the work in question,

the use is not transformative. Merely merchandising a celebritysimage without that persons consent does not amount to a transfor-

mative use.

The Court found that as long as Hilton could show some probabil-

ity of success in arguing that the birthday card is not transforma-

tive, Hallmark was not entitled to the transformative use defense

as a matter of law. The version of Hilton on the card did almost

exactly what she did in her reality show, serve food to a customer.

As the factual issue of whether the card is transformative or not

transformative must still be resolved, Hilton has some probability

of success.

California law provides that there is no cause of action against

publication of matters in the public interest because of the publics

right to know and the presss freedom to tell. The Court dismissed

Hallmarks public interest defense because it only applies to liabil-

ity for publishing or reporting information, which the Hallmark

card does not do.

A majority of states have anti-SLAPP statutes, including Florida

and Illinois. They are most often used to defend against defama-

tion suits.

Source: Hilton v. Hallmark, 580 F.3d 874 (9th Cir. 2009)

The anti-SLAPP stat-

ute should be inter-

preted broadly in light

o its purpose to en-

courage participationo matters o public

importance or conse-

quence.


9/12


9

State oreclosure o security interest in patents transers

title without a written assignment rom debtorThe U.S. Court of Appeals for the Federal Circuit has determined

that a party that obtained its rights to certain patents from a party

that obtained those rights through a security interest foreclosure

sale has good title to those patents and can sue infringers in its

own name. It is not necessary for the purchaser at foreclosureto obtain a written assignment from the original patent owner in

order to be able to pass good title to the patents to another party

by a written assignment.

In 2001, Ozro Inc. (whose owners included Jeffrey Conklin) grant-

ed security interests covering ve patents to Silicon Valley Bank

(SVB) and to Cross Atlantic Capital Partners, Inc. (XACP).

Both SVB and XACP recorded their security interests in the U.S.

Patent and Trademark Ofce. SVB later assigned its security in-

terest to XACP. The XACP security agreement provided that, in

the event of default by Ozro, XACP could dispose of the collateral,

including the patents, at a public or private sale. XACP could

also purchase the collateral, including thepatents, at a public sale.

When Orzo defaulted, XACP issued a fore-

closure notice identifying the patents among

the collateral to be sold at public auction.

Prior to the auction, Jeffrey Conklin negoti-

ated with XACP for XACP to purchase the

patents at the auction and to transfer them

to Conklins new company, Sky Technolo-

gies LLC (Sky). XACP, the only bidder,

purchased all of the assets in foreclosure.

Shortly thereafter, XACP assigned its title to

the patents to Sky. Orzo never made a writ-ten assignment of the patents to XACP.

Three years later, Sky sued SAP AG and SAP America, Inc. (col-

lectively SAP) for patent infringement. SAP moved to dismiss

the suit, contending that Sky did not own the patents and there-

fore did not have standing to sue, because Ozro had never made

a written assignment of the patents to XACP. The U.S. District

Court for the Eastern District of Texas determined that title to the

patents legally passed to XACP at the foreclosure sale, as that sale

was properly conducted under the Massachusetts Uniform Com-

mercial Code, so that when XACP made the written assignment to

Sky, Sky received title to the patents.

The Federal Circuit observed that regardless of how the parties

characterize the transaction that conveyed [the patent] rights, a

party that has been granted all substantial rights under a patent has

legal title to the patent and, therefore, has standing to sue infring-

ers. Although no written document assigned the patent rights to

XACP, the Federal Circuit agreed that patent rights can be trans-

ferred by operation of law in a proper foreclosure sale.

InAkazawa v. Link New Technology Intl, Inc., 520 F.3d 1354 (Fed

Cir. 2008), the Federal Circuit held that federal law is used to de-

termine the validity and terms of an assignment but state law con-

trols the transfer of patent ownership by any operation of law not

considered to be an assignment. Although the federal Patent Act

requires all assignments of patent interests to be in writing, thereis nothing in the Patent Act that limits transfer of patent ownership

only to assignments. Ownership can be changed by operation of

law, such as through the state intestacy laws that determine who

owns the property of a person who dies without a will. InAka-

zawa, the Federal Circuit held that a widow and her daughters who

received title to her deceased husbands patent through state intes-

tacy law could make a valid assignment to a third party, who could

then bring a patent infringement suit. Although an assignment of

a patent must be in writing, transfers by operation of law are not

so limited. As XACPs foreclosure sale was properly conducted

under Massachusetts law, Sky received full title to the patents from

XACPs assignment to Sky.

SAP argued that the Patent Act provides that

patents can only be owned by a patentee, his

heirs or his assigns; that is, persons to whom

the patentee makes a written assignment. 35

U.S.C. 154(a)(1). SAP did not question the

Akazawa ruling because the widow and daugh-

ters were heirs, a class of persons within the

statutory language. However, the Federal Cir-

cuit was not persuaded because that statutory

provision does not cover transfers of patent

ownership, only the original grant of the pat-

ent. Nor does 9-619 of the Massachusetts

UCC require a written assignment. It merelypermits such a document to be recognized as legal if it is made.

Public policy reasons also support transfer by operation of law.

The Federal Circuit concluded that invalidating foreclosures of se-

curity interests secured by patents would harm a large number of

secured creditors. In addition, restricting transfer of patents to as-

signments would lessen the value of patents because patent owners

could not use them as collateral. Moreover, it would be impracti-

cal to require secured parties to obtain written assignments after

foreclosure from businesses that might no longer exist.

As the Federal Circuit noted, a foreclosure sale must be properly

conducted for the title to patents to transfer to the purchaser atthe sale. Although it is not necessary to record a security interest

with the U.S. Patent and Trademark Ofce to perfect that security

interest in patents, it is good practice to do so, in addition to ling

the UCC nancing statement that indicates that it covers patents

or general intangibles or includes a description of the patents that

it covers.

Source: Sky Technologies LLC v. SAP AG, U.S. Court of Appeals for the

Federal Circuit, No. 2008-1606, August 20, 2009

Although no written

document assigned the

patent rights to XACP,

the Federal Circuit

agreed that patent rights

can be transerred by

operation o law in a

proper oreclosure sale.


10/12


10

three-year or a six-year period because the mark was in use by its

licensees. It pointed to recently seen DAKOTA-branded clothing

for sale by a company in Sioux Falls. However, DIs attorney

admitted that those garments were sold to that company in 1997

and that DI did not have any evidence that the company was still

a licensee. Because DI failed to produce any evidence of actual

license agreements, income from licensing or afdavits from cur-rent licensees, and no specics about goods or licensees still in

the marketplace or alleged royalty-free oral licenses or license su-

pervision, the Supreme Court concluded that the mark was indeed

abandoned.

Section 45 of the Lanham Act also provides that a mark will be

presumed abandoned if the owners course of conduct causes the

mark to lose its signicance as a mark. Allowing unlicensed

third parties to use a mark can be evidence of such lost signi-

cance.

A state trademark registration, although providing protection for

a mark only within the boundaries of the state of registration, isnonetheless an important tool for protection of marks that are not

used in interstate commerce or whose owner is not ready to incur

the expense of a federal registration. State trademark registrations

are relatively easy and inexpensive to obtain and maintain com-

pared to a federal registration. However, unlike federal applica-

tions, which can be based on an intent to use a mark in the future,

state trademark applications require that the mark be in current use

within the state.

The DAKOTA mark at issue in this case would probably have been

difcult to register on the U.S. Principal Register, as it would like-

ly have been considered to be geographically descriptive. State

registrars are less likely to make such objections.

Source: Dakota Industries, Inc. v. Cabelas.com, Inc., S.D. Supreme

Court, No. 24950, May 20, 2009

DAKOTA Continued from Page 3

a patent or copyright license where the patent owners permission

is required.

Because it had not considered its PPG decision since 1979, the

Sixth Circuit took the opportunity to expand on its reasoning in

that case. The Court observed that (1) federal common law gov-

erns issues with respect to the assignability of a patent or copy-

right license, (2) state contract law governs interpretation of patent

and copyright licenses, (3) state law determines whether a mergerresults in the transfer of such licenses but (4) state law cannot al-

low a patent or copyright license to transfer without the licensors

express authorization. The fact that Novelis was not a competitor

of Cincom is irrelevant because the license specically prohibited

transfers without Cincoms prior written consent. Even if the li-

cense had been silent as to transfer rights, federal common law

prohibited a transfer without the licensors express approval. If

Ohio law transferred the license from Alcan to Novelis as of result

of the internal restructuring/mergers, the license was breached and

COPYRIGHT Continued from Page 5 Noveliss use of the software constitutes copyright infringement.

The Court noted that the changes in Ohio law following the PPG

decision were not substantive in determining whether Ohio law

causes a license to be transferred to the successor party in a merger.

What matters is whether, after the merger, the same legal entity

holds the license. If not, a transfer has occurred that, in this case,

was unlawful because Novelis did not obtain Cincoms prior writ-

ten approval. Therefore, Noveliss use of the software constituted

copyright infringement.

This case illustrates the danger in assuming that a license that

contains no pre-transfer approval obligations may be freely trans-

ferred. If the license has no transfer provisions at all, federal com-

mon law will bar a transfer without a prior written authorization.

Where the parties wish a license to be freely transferrable, they

must expressly provide such a term in the license.

Source: Cincom Systems, Inc. v. Novelis Corp., U.S. Court of Appeals forthe Sixth Circuit, No. 07-4142, September 25, 2009

Free Domain Name Trademark

Monitoring or Valued Clients

For a limited time, Arnstein & Lehr LLP is oering a ree ser-vice or valued clients concerned about potential inringersregistering domain names with their trademarks. This newservice alerts the rm dail to top-level domain names reg-istered with ICANN registrars that contain the clients trade-marks. It is oered as part o Arnstein & Lehrs emphasis onproviding its clients with large rm expertise at mid-marketvalue rates.

Hundreds o thousands o new top-level internet domainsare registered ever week. Oten these domains containvaluable trademarks that the registrants are not authorized touse. Good brand management and protection dictates thattrademark owners be vigilant about misuse o their marks onthe Internet.

Services that alert trademark owners to domain registrationsusing their marks can cost thousands o dollars a ear. How-ever, or a limited number o trademarks and a limited timeArnstein & Lehr will, ree o charge, add a clients trademarkto the list o marks it monitors or use in new domain registra-tions. An alerts the rm receives will be orwarded on to theclient or review and legal action, i necessar, at the clientsdiscretion.

Clients or potential clients interested in taking advantageo this new ree service are encouraged to contact JudithGrubner in Chicago at 312.876.7885 or [email protected], or Joel Rothman in West Palm Beach at 561.650.8480or [email protected].


11/12


11

The Intellectual Propert Practice Group counsels clients on mattersrelated to the protection o trademarks, coprights, domain names andtrade secrets, including preparation and processing o trademark andcopright applications, unair competition, rights o privac and pub-licit, review o web sites and advertising claims, and preparation andregistration o contest and game promotion rules.

Ms. Grubner is a partner in the rms

Chicago ofce. She concentrates her

practice on intellectual property, spe-

cializing in trademarks, copyrights,

domain names and sweepstakes, contests and game

promotions.

Ms. Grubner is a speaker or the Chicago and Milwaukee

Bar Associations, the Midwest Society o Proessional

Consultants and Society o Proessional Journalists. In

July 2009 Ms. Grubner was named to the list o LeadingLawyers in Advertising & Media Law by Leading Lawyers

Network.

Mr. Rothman is a Florida Bar boardcertied Intellectual Propert lawerand a partner in the rms West PalmBeach ofce. Mr. Rothman represents

individual and corporate clients in intellectual propertinringement litigation involving patents, trademarks,coprights, trade secrets, trade libel and related com-mercial matters. His litigation practice also includessignicant ocus on electronic discover issues such ase-discover management and motion practice relating

to e-discover.

Judith L. Grubner

312.876.7885

[email protected]

Joel B. Rothman

561.650.8480

[email protected]

World Wide Video appeals

dismissal o case against Yoko Ono

We reported in the Summer 2009 newsletter that Yoko

Ono was allowed to keep possession of and the copy-

rights to videotapes with footage of John Lennon, Ms.Ono and their family that World Wide Video claimed

to own. World Wide Video appealed that ruling to the

United States Court of Appeals for the First Circuit on

November 6, 2009.

The editors acknowledge the contributions to this issue

o Misha Kerr and Eric Seidmon.

Dont wait or the next issue

to get more IP news and updates

Check out and subscribe to blogs published by Arn-

stein & Lehr attorney Joel Rothman on nutritional and

dietary supplement law at www.nutrisuplaw.com. Healso publishes the legal blog www.appslawblog.com

for companies competing in the mobile and iPhone

applications business.

Arnstein & Lehr also publishes General Counselor,

our employment law blog for in-house attorneys, busi-

ness owners and executives with special attention to

Illinois employment law. It can be found atgeneral-

counselor.com.

Misha Kerr is an intellectual property

associate in the rms West Palm Beach

ofce.


12/12


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Arnstein & Lehr Intellectual Property Law Newsletter Winter 2009

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