|

Furniture sold in Illinois through Bon-Ton Stores was the subject of a recent trademark infringement case before the Ninth Circuit Court of Appeals (Stone Creek, Inc. v. Omnia Italian Design, Inc., No. 15-17418 (9th Cir. 2017)).

Phoenix-area furniture maker and retailer Stone Creek, Inc., obtained state and federal trademark protection for the signature red oval encircling the words “Stone Creek” imprinted on its furniture. In 2003, the company entered an agreement with leather furniture maker Omnia Italian Design to sell Omnia furniture branded with the Stone Creek label in Stone Creek stores.

Stone Creek later learned that Omnia was using its brand mark without authorization on competing products, specifically furniture sold through Bon-Ton Stores in the Midwest. Omnia digitally copied the mark from Stone Creek products and used it in marketing and warranty materials displayed at Bon-Ton galleries. Stone Creek was tipped off when, among other things, consumers began contacting them about warranties for furniture purchased at Bon-Ton.

Stone Creek sued Omnia for federal and common-law trademark infringement and unfair competition. The district court found for Omnia on the ground that consumers were not likely to be confused by the mark as defined under the Lanham Act.

A “likelihood of confusion” under trademark law turns on whether a “reasonably prudent” marketplace consumer is “likely to be confused as to the origin of the good or service bearing one of the marks.” Determining factors include the similarity of the marks and the proximity of the goods, the recognition and distinctiveness of the protected mark, evidence of actual confusion, and common marketing channels. Continue reading ›

|

The First Amendment of the U.S. Constitution does not protect defamation, but the requirements that speech must meet in order to qualify as defamation are very specific, and even more so for public figures. The primary objective of the First Amendment is to allow citizens (and especially the press) to speak freely about public figures in order to keep the public informed on what their elected officials and candidates are doing.

In June of this year, a gunman opened fire at a baseball stadium where Republican Congressmen were practicing for a charity baseball game. In an effort to write an editorial on the event and get it published quickly enough so as to still be relevant, the New York Times made some factual errors, but it quickly corrected them and apologized afterwards.

In trying to make a point about the level of hostility between the two political parties, James Bennet, the author of the editorial, mentioned the 2011 mass shooting conducted by Jared Loughner, which left Representative Gabrielle Giffords severely wounded. Bennet also mentioned a map of targeted electoral districts that Sarah Palin’s political action committee had previously circulated.

Palin promptly sued Bennet and the New York Times in New York federal court for defamation, claiming the editorial incorrectly connected her with the mass shooting, even though the publication she had no connection to the gunman, as the newspaper had previously said so in other articles it had published. Continue reading ›

|

Our credit rating is too important to take any chances on it. All it takes is one bad report to lower your rating, which can then inhibit your ability to obtain a loan and make any large purchases you might need, such as a home or automobile. Unfortunately, such a situation can open opportunities for companies to practically hold consumers’ credit ratings hostage until they pay their bill – even an undated bill to which the customer was never alerted.

That’s what Mandi H. alleges happened after she canceled her account with CenturyLink at the end of 2015 as a result of poor service. At the time, her account showed Century Link owed her $26 and she did not receive any other bills or communication from CenturyLink.

It wasn’t until a few months later that Mandi H.’s credit-reporting services alerted her to the fact that there was a negative report on her credit history from a company called “CenturyTel.” Hanifen did not recognize the name, but she investigated and found it was an older name for CenturyLink. When she confronted CenturyLink, Hanifen alleges they showed her a bill for $127 – the bill contained no date and Mandi H. alleges she had never seen the bill before that time. Nevertheless, CenturyLink allegedly refused remove their negative credit report on her history and continues to demand she pay a bill she insists she never received.

Rather than pay the bill, Mandi H. has opted to sue CenturyLink. She is the lead representative for a proposed class action consumer lawsuit that was recently filed against CenturyLink in Boise, Idaho. The complaint alleges there could be as many as 5 million potential class members, with damages totaling between $600 million and $12 billion. Continue reading ›

|

The Seventh Circuit has again rejected a pick-off attempt in a class action overturning a dismissal that approved use of that tactic.

Just because someone offers to make a payment to settle a legal dispute does not mean the payee is required to accept the payment. Nor does the offer of payment (or deposit made to the court) negate the existence of the legal dispute. Nevertheless, that’s exactly what Bisco Inc. tried to claim after Fulton Dental, LLC filed a putative class action lawsuit against the dental company.

Fulton sued Bisco for allegedly violating the Telephone Consumer Protection Act (TCPA) by sending unsolicited fax messages about dental products. Fulton sued on behalf of itself and all those similarly situated who received unsolicited fax messages from Bisco (for which Fulton was therefore made to pay). But before Fulton had a chance to file a motion to certify its class of plaintiffs, Bisco offered to pay Fulton about $3,000 in order to settle the dispute. Fulton refused, but Bisco made a deposit to the court of $3,600 and claimed that settled the whole matter.

The Seventh Circuit Court disagreed, going off the Supreme Court’s 2016 in Campbell-Ewald, in which the Supreme Court rejected the assertion that an offer to pay the plaintiff’s damages in full did not render the class action lawsuit moot under Rule 68 of the Federal Rules of Civil Procedure.

However, in its written opinion, the Supreme Court did note that, by making the ruling in this particular case, the Court was not trying to rule in any other legal disputes of a similar nature. Bisco took that to mean the deposit it made to the Seventh Circuit Court of Appeals was still a valid method of ending its legal dispute with Fulton Dental. Continue reading ›

|

In a case of “idea theft,” film industry defendants who argued the right to free speech protected them against a claim of stealing a screenplay that was later made into “The Purge” films were recently slapped down by the Ninth Circuit Court of Appeals (Jordan-Benel v. Universal City Studios Inc., et al., No. 15-56045 (9th Cir., 2017).

In 2011, screenwriter Douglas J. penned a screenplay entitled “Settler’s Day,” depicting a futuristic landscape of lawlessness and chaos, which he registered with the U.S. Copyright Office. Douglas’s agent submitted the screenplay to persons at United Talent Agency (UTA). After saying it would pass on the screenplay, UTA forwarded it to other clients of UTA, who allegedly adapted it into “The Purge.” The film and its sequel were released in 2013 and 2014, produced by Universal City Studios and four other production companies.

In 2015, Douglas filed a complaint for copyright infringement against UTA and the production company defendants, claiming breach of an implied-in-fact contract based on defendants’ implied agreement to compensate and credit him as a writer/creator should his idea be used. He alleged that defendants breached this agreement by using and profiting from his ideas without compensation or credit, seeking declaratory relief. Continue reading ›

|

When a company changes its logo to just the letter, “P” it’s hard to believe a single letter of the alphabet could be trademarked, but that’s what PayPal appears to be claiming.

According to a recent trademark infringement lawsuit PayPal filed against Pandora, it’s more than just the letter. It’s also the color and style, both of which are very similar to the logo PayPal has had for the past three years.

Currently, PayPal’s logo is two blocky, overlapping Ps in sans serif, with no counter. A very dark blue P overlaps a light blue P.

Pandora’s new logo is a single, blocky, dark blue P, on the same color spectrum as PayPal’s logo. It also has the sans serif and absence of counter as PayPal’s logo. According to PayPal, the new Pandora logo goes beyond resembling PayPal’s logo and openly mimics it.

Despite the fact the two companies are working in very different industries, PayPal’s trademark infringement lawsuit is claiming that Pandora recently changed its logo in a deliberate attempt to cause confusion among consumers. Continue reading ›

|

Despite stepping down as CEO of Uber, the ride-sharing start-up he founded, Trevor Kalanick’s troubles are far from over. On top of allegations that the company mistreats its drivers, discriminates against and sexually harasses women at work, and stole trade secrets from another ride-sharing service, Kalanick is now being sued by Benchmark, one of Uber’s investors.

In 2016, Kalanick proposed an amendment to Uber’s charter, giving him the right to nominate three new directors to the start-up’s eight-member board. At the time, Kalanick got Benchmark to approve the amendment, but Benchmark is now saying Kalanick deliberately misrepresented key information regarding the company and the amendment, and is now asking for the amendment to be voided.

Six years ago, Benchmark invested in what was then a tiny ride-sharing start-up, called Uber. It bought a 20% stake in the company, which has since grown to be worth billions of dollars. Kalanick and Gurley (and, by extension, Uber and Benchmark) remained close for years until Kalanick and Uber started getting hit by one scandal after another. At that point, Gurley began to put some distance between himself and Kalanick, finally joining other investors to push Kalanick out as CEO of the company.

Although he was forced to give up his seat on the board when he stepped down as CEO, Kalanick immediately reappointed himself to one of the board seats he controls as a result of the amendment he had added last year, and he still holds a 10% stake in the company. It’s not as much as Benchmark’s 13% stake, but it’s enough to make life at Uber difficult for anyone who opposes Kalanick – something he has allegedly set out to do. Continue reading ›

|

Although most he said/she said cases can be difficult, if not impossible, to prove which side is in the right, when hearing a case against a person for allegedly acting inappropriately, consideration can be given to how strongly the accuser appears to believe what they’re saying, rather than what actually happened.

In the case of the charges David Mueller filed against Taylor Swift, her mother, and one of her managers, Judge William J. Martinez, of the United States District Court in Denver, dismissed the pop star from the complaint.

The allegations involve a meet and greet Swift gave before a concert at the Pepsi Center in Denver, Colorado. Mueller and his girlfriend at the time, Shannon Melcher, posed for a photo with the pop star, at which point Swift claims Mueller put his hand up her dress and onto her bare buttock.

Out of shock and surprise and an unwillingness not to ruin the whole evening for the rest of her fans, Swift did not immediately react. But after her meet and greet was over, she allegedly informed security she had been groped, at which point they escorted Mueller and Melcher out of the building. Continue reading ›

|

When John Oliver spoofed West Virginia coal magnate Bob Murray he was following in a tradition in our country that pre-dates the founding fathers.  Embedded in our constitution is the right to criticize public figures on important.  Lawsuits shouldn’t be used as a weapon to quash such speech.  Below is a photograph from a recent West Virginia ACLU brief attacking Murray for his use of allegedly frivolous libel lawsuits as part of a long running campaign to quash media criticism of him.

 

 

The First Amendment of the U.S. Constitution was specifically designed to allow for the free and open discussion of public figures – notably politicians, but all public figures (celebrities, entertainers, influencers, etc.) are subject to a certain amount of public scrutiny.

Because the law recognizes that talk can do real damage, defamation is still a punishable offense, but it’s the responsibility of the plaintiff to prove the statement was false, the person/entity making the statement knew it was false at the time the statement was made/published, and that the plaintiff suffered actual damages as a direct result.

That’s a lot to prove, and yet many public figures continue to file often baseless defamation lawsuits for large amounts of money, apparently just in the hopes of getting the other side to shut up.

Bob Murray, who owns Murray Energy Corp., a coal company, has responded to a monologue John Oliver did on his show, Last Week Tonight, by suing Oliver, his writers, HBO, and Time Warner. Although the company insisted it does not file anti-speech lawsuits, Oliver pointed out on his show that, in addition to suing large media corporations, such as The New York Times, Murray Energy has also sued local newspapers, such as the Akron Beacon Journal, for as much as $1 billion. Continue reading ›

|

Many people and organizations have long tried to get the NFL team known as the Redskins to change their name. The name is certainly offensive to most Native Americans and is a racial slur, but it’s not illegal to use it.

The football team has maintained a trademark on the Redskins name since 1967, but when they went to renew it in 2014, the trademark office refused, saying the name disparaged Native Americans. The team sued the trademark office in Virginia, where a trial judge ruled in favor of the trademark office. The team appealed the decision to the United States Court of Appeals for the Fourth Circuit, which is also located in Virginia, but that court put off ruling on the case until after the U.S. Supreme Court had given its ruling on Matal v. Tam, in which an Asian-American dance-rock band is seeking a trademark for their name: the Slants.

While the trademark office insisted the name was offensive, the band members said that was not their intention in coming up with the band’s name. Instead, they were looking to empower themselves and other Asian Americans by repurposing a derogatory term, much like the way homosexuals have taken ownership of the term “queer.”

All eight of the judges were unanimous in ruling in favor of the Slants, though their reasoning differed (Neil Gorsuch was not included in the decision, as the hearing was in January, prior to his appointment). Half the judges maintained a ban on trademarks for disparaging names would be in violation of the First Amendment, even when taking into account that judicial scrutiny for commercial speech tends to be relatively relaxed compared to other forms of speech. The judges pointed out that the First Amendment protects all speech, however hateful or offensive. Continue reading ›

Contact Information
Chicago Office
19 S LaSalle St #702
Chicago, IL 60603
Phone: 630-333-0333
Mailing Address
17W220 22nd St #410
Oakbrook Terrace, IL 60181
Phone: 630-333-0333 Please direct all mail correspondence to our Oakbrook Terrace address.
Highland Park Office
189 Whistler Rd
Highland Park, IL 60035
Phone: 630-710-4990
We accept the following credit cards
Credit Cards Accepted
We accept payment via Venmo at: @L-A-LAW

Please direct all mail correspondence to our Oakbrook Terrace address.

Phone: 603-333-0333
Visit our site: chicagobusinesslawfirm.com

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2024, Lubin Austermuehle, P.C.
JUSTIA Law Firm Blog Design