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U.S. Intellectual Property and New Media Law Update SPAM CANNED AT THE STATE LEVEL Erienet, Inc. et al. v. Velocity Net, Inc. et al. (Third Cir. - September 25, 1998) NEWCOMBE V. ADOLF COORS CO. ET AL. (NINTH CIR. - SEPTEMBER 22, 1998) Newcombe v. Adolf Coors Co. et al. (Ninth Cir. - September 22, 1998) A STUPID DEFAULT IS STILL A DEFAULT Gucci America, Inc. v. Gold Center Jewelry, et al. (Second Cir. - September 30, 1998) ONE FOR ALL AND ALL FOR ONE Stuart I. Levin & Associates, P.A. v. Rogers (Eleventh Cir. - September 29, 1998) SPAM CANNED AT THE STATE LEVEL Erienet, Inc. et al. v. Velocity Net, Inc. et al. (Third Cir. - September 25, 1998) Both Plaintiff and Defendant are Internet service providers. Plaintiff charged that Defendant sent unsolicited e-mail to Plaintiff's subscribers in violation of the private enforcement provisions of the Telephone Consumer Protection Act ("TCPA"), 46 U.S.C. Section 227. Plaintiff's brought the suit in the Federal Court in the Western District of Pennsylvania. The TCPA seeks to deal with unsolicited solicitations by telephone and e-mail. Inter alia, it creates a private action arising from such solicitation, indicating that a person or entity may bring an action based on the violation in an appropriate court of that state. Plaintiff brought the action in Federal Court in the Western District of Pennsylvania. Based on both the silence of the statute with regard to federal jurisdiction and the specific reference to state courts, the Defendant asked that the suit be dismissed for lack of jurisdiction in the federal courts. The Third Circuit found that the legislative history and the permissive language of the statute did not indicate federal jurisdiction. On the whole, an interesting discussion of statute interpretation with a vigorous dissent by Circuit Judge Alito who found nothing in the TCPA which would require that federal jurisdiction not also reside. NEWCOMBE V. ADOLF COORS CO. ET AL. (NINTH CIR. - SEPTEMBER 22, 1998) Newcombe v. Adolf Coors Co. et al. (Ninth Cir. - September 22, 1998) Don Newcombe is a former major league baseball all-star who is a recovering alcoholic. He uses his considerable fame as a former baseball player in the fight against the use of alcohol. One day to his surprise, he found a beer advertisement showing what he believed was his likeness in an old fashioned stadium as part of an advertisement for Killian's Irish Red Beer. It turns out that the image in the advertisement was based on a 1947 photograph of Newcombe on the mound. He sued based on both California statute and common law protection against commercial misappropriation. The District Court dismissed the claim by summary judgment since it believed the record indicated that there was no intention to exploit Newcombe's image but rather was an attempt to have a generic baseball scene. The Ninth Circuit disagrees. The Court found, after viewing the advertisement, that there was a triable issue of fact as to whether Newcombe is readily identifiable as the pitcher in the advertisement. It noted the correspondence between the photograph and the drawing, including the pitcher's stance were identical, even the styling of the uniform right down to the wrinkles in the pants. The Court found that even if parts of Newcombe's face were obscured, it could not be said on the present record that the stance was essentially generic. The record contained pictures of other pitchers in the wind-up position but in none of these pictures did the pitcher have a stance similar to Newcombe's. The Court also noted that the pitcher's skin was moderately dark. Thus, the primary issue should have been left to the jury, not to the District Court Judge. The jury might very well find that there was use of an image without permission, the major component which is required under both the California Common Law and the statutory provisions. A STUPID DEFAULT IS STILL A DEFAULT Gucci America, Inc. v. Gold Center Jewelry, et al. (Second Cir. - September 30, 1998) Defendants defaulted first with regard to the original complaint and secondly with regard to the motion to set damages under the Lanham Act. Defendants finally woke up that this was going to cost them money and moved to vacate both the original default and the default with regard to the issue of damages. The District Court sustained the default judgment since the Defendants knowingly chose not to answer but found that the failure to answer the motion to fix damages was more stupidity than bad faith and re-opened the assessment of damages, finally awarding much less than the amount originally requested in the motion to set damages. The Second Circuit sustained the original default judgment and overturned the reopening of the question of damages. It noted that whether the question of damages should be reopened was not a question of bad faith, but simply whether the failure to answer was intentional. Here, it was clear from the record, the Defendants decided not to respond. That intention makes the default willful regardless of the underlying motives. The case was remanded to set damages in accordance with the original motion. The decision may be viewed at: http://www.law.pace.edu/lawlib/legal/us-legal/judiciary/second-circuit/test3/98-7642.opn.html ONE FOR ALL AND ALL FOR ONE Stuart I. Levin & Associates, P.A. v. Rogers (Eleventh Cir. - September 29, 1998) Here, the underlying action was for copyright infringement. As not unusual, there were two conflicting stories about the origin of the work. Each side claiming ownership of the copyright in the work with the usual claims, counterclaims, and the like. The Eleventh Circuit deals with an award of approximately $30,000 in sanctions against Plaintiff's attorney under Rule 37(b)(2). Plaintiff continually refused to move forward with discovery, constantly refusing to supply documents or otherwise respond to both Magistrate and Court orders. The firm which initiated the suit eventually dropped out and was replaced by attorney Levin who indicated that he assigned the case to an associate to handle. After many skirmishes and many court appearances, the Court first dismissed the Plaintiff's claim and thereafter granted the Defendant's counterclaim for copyright infringement. It also awarded sanctions against Levin for his failures to supply information in conformity with the Court's orders. Levin first claimed that the language of Rule 37(b)(2) provides for imposition of discovery sanctions only upon the "advising attorney" and that he was merely the employer of the advising attorney responsible for the sanctionable conduct. The Court found such an argument unpersuasive. Levin was the attorney of record in the case and signed many of the pleadings. As such, Levin owed a duty to the client to fully represent his interests and he owed a duty to the Court to comply with the Court's orders. While the duties could be delegated, including the duties which are the base of the sanction, it did not relieve Levin of his own duties. Secondly, Levin argued that the District Court should have vacated because he had not received adequate notice and opportunity to be heard prior to the imposition of sanctions upon him. This claim bordered on the frivolous. At the time of the hearing, the associate working for Levin was in the hospital undergoing treatment for Leukemia. From the evidence, Levin was not only aware of the proceeding going on before the District Court, but was also aware that his associate was hospitalized with a serious illness. Levin's choice not to appear before the Court appears to be a tactic to claim complete ignorance, but was inconsistent with the reality. Again, Levin cannot escape his responsibility for management of his client's interests and complying with the orders of the Court. Finally, Levin's claimed that the damages were excessive, were unsupported by the record and were equally meritless. Levin did not object to nor seek to controvert in any way the expenses claimed by the Counsel at the district court level. Any question about the amount of time anything took to prepare or the counsel's practice of using fifteen minute intervals comes far too late. http://www.law.emory.edu/11circuit/sept98/94-4368.man.html |
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