Intellectual Property Litigation
Patent Litigation
Trademark Litigation
The test for trademark infringement is whether the accused infringing mark is likely to cause confusion, or cause mistake, or to deceive. The analysis of likelihood of confusion is more than just a side by side comparison of the trademarks. Rather the trademarks must be considered in the context in which the goods are sold, including the ordinary care that a consumer uses in purchasing particular types of goods. Actual confusion or deception of purchasers is not essential to trademark infringement. The owner of a federally registered trademark has the option of its actual damages for the infringement, or seeking an accounting of an infringer's profits. Actual damages includes the loss of sales due to actual confusion, damage to the trademark owner's business good will, loss of income resulting from a reduction in the price of goods due to infringing competition, expenses, and loss of reasonable royalty that would have accrued from licensing the trademark. In some cases, such as intentional or deliberate infringement, attorneys' fees are recoverable as damages.
Copyright protection exists regardless of whether the copyright is registered. However, a copyright registration is a prerequisite for filing a copyright infringement action based on a work of US origin. Registration is also a prerequisite to recovery of statutory damages and attorney's fees in an infringement action. Registration further provides prima facie evidence of ownership and validity of the copyright. A copyright does not grant the right to exclude others from use of an idea. Copyright protects only a particular embodiment of an idea. Therefore, if someone independently creates something that is similar, or even identical to, the copyrighted work, no infringement exists. Copyright infringement requires actual copying. A copyright owner is entitled to preliminary and permanent injunctions to stop an infringement. The court also may order the destruction of the infringing articles, as well as the plates, molds, masters, negatives, etc. used to make the infringing articles. A copyright owner is entitled to recover any actual damages as well as any profits made by the copyright infringer. The copyright statute also allows statutory damages, which are determined by the court, and are limited to between $500 and $20,000 unless the infringement was willful. For willful infringement the court may award up to $100,000 in statutory damages. The copyright owner must select between actual and statutory damages and cannot collect both. Attorney's fees may also be recoverable as part of costs in a copyright infringement litigation.
resources
Patent Infringement
Bushnell v. Brunton (Fed. Cir. 2009) Bushnell’s patents cover a laser range finder. The company sued Brunton and Lanshoo in Kansas for infringement and also filed a motion for a preliminary injunction to stop the ongoing infringement. On November 25, 2009, Judge Vratil issued the preliminary injunction and Brunton immediately requested a temporary stay from the Federal Circuit. A temporary stay of relief was granted that same day (November 25, 2009). The temporary stay was intended only to last until the court could decide whether relief should be stayed for the remainder of the preliminary injunction appeal. The decision on that question was decided by Chief Judge Michel and Judges Schall and Linn of the Federal Circuit. Under the Supreme Court precedent of Hilton v. Braunskill, 481 U.S. 770 (1987), an appellate court may stay relief pending appeal when the moving party establishes a strong likelihood of succeeding on the merits of the appeal or “failing that” when the party has a “substantial case on the merits and the harms factors militate in its favor.” In this case, the Federal Circuit ruled that “Brunton has not met its burden” and immediately lifted the stay (December 30, 2009 opinion).