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U.S. Intellectual Property and New Media Law Update 100% TRADEMARK VICTORY FOR THE GAP OVER ESTEE LAUDER Estee Lauder, Inc. v. The Gap, Inc. (2nd Cir. -Decided- March 25, 1997) INJUNCTION AWARDED FOR COPYING OF LACE DESIGNS ON BRIDAL GOWNS Eve of Milady v. Impression Bridal, Inc. (S.D.N.Y. March 1997) O.J. WINS ONE IN THE U.S. TRADEMARK OFFICE Ritchie v. Simpson (TTAB- Decided- January 28, 1997) SUBJECTING EUROPEAN CORPORATE AND INDIVIDUAL DEFENDANTS TO JURISDICTION OF MICHIGAN COURT NOT FAIR PLAY International Technologies Consultants, Inc. v. Euroglas, S. A. (6th Cir. -Decided- February 20, 1997) 100% TRADEMARK VICTORY FOR THE GAP OVER ESTEE LAUDER Estee Lauder, Inc. v. The Gap, Inc. (2nd Cir. -Decided- March 25, 1997) The Second Circuit recently reversed a District Court's permanent injunction ruling in favor of Estee Lauder, by holding that The Gap's trademark 100% BODY CARE for moderately priced beauty products sold at the Old Navy Clothing stores did not infringe upscale Estee Lauder's moisturizer called 100% TIME RELEASE MOISTURIZER. While the Court felt that the phrase "100%" is entitled to trademark protection as a suggestive phrase, the Court found in Gap's favor on such factors as the weakness of the Estee Lauder mark taken as a whole, dissimilarity between the product labels, and the differences in channels of trade. The decision can be viewed at: http://www.law.pace.edu/lawlib/legal/us-legal/judiciary/second-circuit/test3/96-7938.opn.html INJUNCTION AWARDED FOR COPYING OF LACE DESIGNS ON BRIDAL GOWNS Eve of Milady v. Impression Bridal, Inc. (S.D.N.Y. March 1997) A federal court in New York has ruled that lace designs in a bridal gown, are protectible under copyright law. While the Judge adhered to the long held position in the Second Circuit that clothing per se, is not copyrightable, she found that plaintiff's use of patterns of lace on plaintiff's bridal gowns are "fabric designs", and are therefore copyrightable. The Judge noted that "the use of lace designs in a bridal gown will garner careful scrutiny by the bride who purchases and subsequently wears the gown, as well as those who admire her when she wears the gown." Thus, copying of the lace patterns by defendant rose to the level of copyright infringement. While the Judge agreed to grant the injunction blocking further manufacture or marketing of the copied dresses, she refused to order a recall for consumers who purchased the copied dresses and have not yet married since "such an order would be a source of immediate prejudice to brides who planned to wear defendant's dresses at their weddings." Instead, the Judge believed that a civil damage award could cure the harm caused by the sale of the dresses. O.J. WINS ONE IN THE U.S. TRADEMARK OFFICE Ritchie v. Simpson (TTAB- Decided- January 28, 1997) During the O.J. Simpson criminal trial, O.J. Simpson filed applications in the U.S. Trademark Office seeking registration of the marks O.J. SIMPSON, and O.J. for goods ranging from figurines and trading cards to sportswear and toys. William Ritchie, an individual, filed an opposition to the registration of each of the marks on the grounds that they are "scandalous." In dismissing the Opposition, the Trademark Trial and Appeal Board held that Opposer lacked standing to oppose the applications for two reasons: (1) whether a mark is scandalous must be determined from the standpoint of a substantial composite of the general public, not merely from the standpoint of opposer and others who believe that O.J. Simpson committed acts that they find offensive; and (2) Opposer failed to plead that there is anything inherent in the name O.J. SIMPSON or O.J. that is immoral or scandalous. The TTAB noted that if it were to find that the present opposer had standing based on the allegations in his pleadings, "that would seem to open the way for an individual to challenge the registration of an individual's or corporation's trademark or service mark, where that individual opposer pleads, for example that he or she is offended by the individual or corporate trademark applicant's products or its hiring policies, political affiliations, environmental record, advertising campaigns, etc." SUBJECTING EUROPEAN CORPORATE AND INDIVIDUAL DEFENDANTS TO JURISDICTION OF MICHIGAN COURT NOT FAIR PLAY International Technologies Consultants, Inc. v. Euroglas, S. A. (6th Cir. -Decided- February 20, 1997) A The Sixth Circuit federal court of appeals affirmed the finding of a U.S. District Court for the Eastern District of Michigan holding that defendant French corporation and individual Swiss and Austrian defendants could not be forced to litigate in a Michigan forum, where the parties had negotiated and entered into a contract in Switzerland and contractually bound themselves to interpret the contract under Swiss law. The complained of tortious behavior was conversion of intellectual property, misappropriation of trade secrets and unfair competition, none of which acts were alleged to have been committed within the state of Michigan. The court concluded that it would be unreasonable for Michigan to assert jurisdiction over the French glass manufacturing corporation and the individual European defendants despite the Michigan plaintiff's contention of defendants' "minimum contacts" with the Michigan forum in the manner of prolonged communication by letter, facsimile and telephone, as well as insertion of a clause in the contract that plaintiff's services "will be considered to be rendered in the USA for tax purposes". The court rejected the "communication" contacts as too tenuous to constitute any sustained presence in the forum so as to confer personal jurisdiction, and further rejected the tax clause as "insignificant". In its summary, the court noted, in heeding the affidavit of a Swiss law professor, that nothing impeded plaintiff (other than apparent inconvenience) from bringing suit in a Swiss court where an adequate remedy could be had under Swiss law. The decision can be viewed at: http://www.law.emory.edu/6circuit/feb97/97a0070p.06.html |
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