South Carolina Intellectual Property Litigation

South Carolina Intellectual Property Litigation

Motive – Help Yourself

Posted in General, Jury Issues / Trial, Trademarks

I hope everyone is having a wonderful June.  Extremely busy here.  School is out.  Our three teenage sons are all playing summer baseball on high school and college fields throughout the Southeast, swimming on the Rockbridge Swim Team, as well as working, lifting weights, going to Palmetto Boys State, The Naval Academy Summer Session, and trying to get all our fishing gear and boats ready for a week at Litchfield / Pawleys Island.  In the midst of all of this, I am working so hard and am presently motivated to get strong and stay stronger than my teenage boys who are closing the gap rapidly.  Ask them and they will say they have passed me already.  They just can’t “help themselves.”

I am now so old that I actually went to sleep before the end of all three #CWS games between Vandy and UVa.  Congrats btw to my child hood friend and now famous Mayor of Greenwood, @WelbornAdams on the Vandy Victory.  Check out his Twitter profile and make sure he removes the “long suffering Vanderbilt” claim there.  As a music lover, Welborn will hopefully appreciate that in analyzing motive, “we are programmed to receive” (The Eagles, Hotel California), and also the link below which you must read to find and listen to @OzzyOsbourne while still with @BlackSabbath.  Listen to those guitar strokes at the start of Hotel California and you will be motivated for something.

The IP Topic You will Not Be Hearing Too Much About Today:

My IP idea for a new blog post was to remind everyone that state trademark registrations, for example as provided for at S.C. Code Section 39-15-10 et seq.,  pack a strong punch for any registered trademark holder looking Continue Reading

Problem solving, anniversary, skills development, and Judical-Legislative power struggle

Posted in General

I knew it would be a challenge to post regularly on this blog as a solo practitioner, and the last few months have proven that.  While no posts have generated, countless ideas have run through my mind and I have decided today is the time to spit a few out.  This is largely because I think many U.S. citizens and most all lawyers would be interested in South Carolina’ latest legal news.  As shown in the Order re House Speaker Bobby Harrell – PDF – OCR (we try to add value here) , the South Carolina Circuit Court (a/k/a Common Pleas) told the S.C. Attorney General to “Move Over Rover” and let the House Ethics Committee take over!  So the question now becomes what will happen to the “fire” that is the investigation and who will get to “stand next to it.”  If the last sentence made no sense to you, please go back and see / listen to the Move Over Rover link.

Okay, so that was item 4 above and the titled topics to this post are out of order.  We find to maintain the reader’s attention, it is good to keep them guessing a little bit.  Back to the first topic.  As my friend and colleague Rob Rikard points out on his Twitter handle @rgrikard he is a “lawyer, father, problem solver.”   Continue Reading

Montgomery Ward, the “Sea King” Two-Stroke Motor, Mail Ordering in 1950′s, and What Could Have Been

Posted in Trademarks

Montgomery Ward® started in 1872 as a dry goods mail order business.  In 1981, the tradename “Montgomery Ward” was also associated with the following goods and services: “Retail Department Store and Mail Order Services,” claiming priority to a “First Use in Commerce: in 1872.  Montgomery Ward’s business model was apparently intended to take advantage of what was possibly the only available “impulse” buying from the home in the 1940′s and 50′s, excepting of course Sears®.  Did you know Sears sold homes?  Yes, in fact, I suspect the guts of my home built in 1946 was a mail order model.

On February 10, 1975, the Montgomery Ward name was also associated with seven trademark registrations for goods and services ranging from “ignition tuneup kits for internal combustion engines” to “loungewear, footwear, headwear, sleepwear, swimwear, [and] hosiery.”  Look out Sears!

According to USPTO filings for Montgomery Ward at Registration No. 1170705, Montgomery Ward, LLC filed for bankruptcy in in 2000.   Continue Reading

Follow me, don’t follow me, I’ve got my spine, I’ve got my orange crush …

Posted in Trademarks

Dig the drum beat start to this classic REM song … Orange Crush!  Nothing like a little rock to get in the mood to talk trademarks!  The text on YouTube link to song states “Orange” is a reference to Agent Orange as used in Viet Nam.  Singleguy at Song Meanings apparently disputes this and claims the song is about he and his brother’s decision to stop for an Orange Crush that saved their spines!  Good luck with that SingleGuy!

R.E.M. became famous in the 1980′s when the author was in high school / college.  Despite their home of Athens, Georgia (great college town) being less than an hour away from my alma mater Clemson University, I never saw R.E.M. perform live (that I can remember!).  We did, however, listen to their unique / ahead of its time brand of music for years and years as Clemson bands, including personal favorite The Next Move (eventually Cravin’ Melon) covered R.E.M. songs in the 1980′s, including rockers like Radio Free EuropeThe One I Love, and soulful ballad Everybody Hurts.  Probably more R.E.M. songs could have been covered, but for lead singer Michael Stipe’s unique “trademark” voice that could get us back to Publicity Rights, but we will stay focused, at least for a few moments.  See also @dariusrucker another southern “trademark” voice and just won another deserved Grammy for “Wagon Wheel.”

OK, let’s move on to learn talk trademarks in our own unique trademarked manner (i.e., with music, always with music).

This blog purports to brand itself as covering all types of Intellectual Property (with music and at least one fake / surprise link), and whatever else “we” hope will educate and entertain you.   Continue Reading

Publicity Rights – Litigation Decades After Death Reconciling State Laws of NY and WA …

Posted in Publicity Rights, Trademarks

A principal part of this blog is to include music in at least one link in each post.  For this post, the subject is music, good music, classic classic rock music (P.S. its Jimi Hendrix!), so the decisions on which song(s) to include were much easier and a heck of a lot of fun.  P.S. There are at least four classic songs linked here, so enjoy reading / jamming on with Jimi.

Publicity Rights are often overlooked in IP.  The Right of Publicity is not a federally protected right like patents, copyrights and trademarks, except to the extent it overlaps with trademark rights, which is not uncommon as shown below.  Publicity Rights are also protected by approximately 28 state’s statutes, for example in the state of Washington, which we will also discuss below with respect to the great Jimi Hendrix.

When folks become famous, people rush to make  money off of their fame.  Continue Reading

Civility at the Courthouse, and More than a “Mess of Blues”

Posted in Justiciable Controversies

Non-lawyers in court are living through real life stressful situations, including possible criminal convictions, jail time, divorce, child custody battles, child support payments, time away from their loved ones, large and small civil disputes, and more.  These people’s blues can be much more than the “Mess of Blues,” recounted in the music of Elvis and Delbert McClinton.

Much has been said among bar associations and legal organizations about the need for (and benefits of) of civility between lawyers.  With 90 per cent or more of the time spent handling a civil lawsuit being between lawyers, we know (or should know) the benefits of getting along with our fellow counsel, even in the midst of high stakes cases and real life consequences.  I had the opportunity to be in trial last week at the Richland County Courthouse.  In the hallways of our courthouses, you will see lawyers settling issues and cases, you will hear lawyers on their phones with clients and witnesses, you will see the stresses on the faces of the litigants, and even the jurors who are missing work.  Most, if not all, of these these people would rather be someplace else!

Right now, politicians are likely regarded in public opinion polls lower than lawyers.  As lawyers, we are often the subject of legitimate and also mis-placed criticisms.  It occurred to me last week in the courthouse hallways that lawyers, as “officers of the court,” should seize this opportunity to be the face of the justice system.  We can do this by showing the same courtesies to strangers in the hallways as we would to the Judge assigned to our case, to his or her law clerk, the court reporter, the Clerk of Court and his or her staff, opposing counsel, witnesses, and our clients.  This is one simple way to show the citizens we represent who and what lawyers really are … hard working, conscientious, caring people who play just one of many roles in the administration of justice.  By acknowledging it is not all about us, we show respect to all persons involved in the process and dignify all whose lives are being affected the most by our justice system.

Being in court can be stressful for many or all involved.  As officers of the court, we should make a special attempt to humanize the administration of justice.  This can be done without compromising our client’s positions when it comes time to advocate their positions.

The above is just one lawyer’s humble opinion after a few days in trial, a long football weekend, and my own blues for an end to the Atlanta Braves 2013 season.  BTW, if you don’t know or like Delbert yet, you will get there, it can be an “Acquired Taste,” you can thank me later.  I am grateful to a great musician rocker and brother-in-law, Steve Spivey, for putting me on Delbert McClinton.

 

 

Five Steps to Identify and Protect Your Trade Secrets

Posted in Trade Secrets

These Five [Easy] Steps to Identify and Protect Your Trade Secrets are intended to be useful to a broad audience to kick-start this blog. Publicly traded companies (and small businesses) can almost always improve how they identify and protect their trade secrets.

Despite  adoption of the Uniform Trade Secrets Act (“UTSA”) in almost all fifty states, law on trade secrets and restrictive covenants to protect same may still vary significantly from state to state.   For example, in South Carolina, courts have required new consideration for an employment agreement with restrictive covenants, such as non-compete and non-disclosure provisions.   For an illustration of how choice of law can impact the outcome of an employer / employee dispute, see Jonathan Pollard’s recent blog post on airline service trade secret litigation, highlighting  differences between Florida and Minnesota law.

Continue Reading

Tracking (Controversial) Gang Injunctions

Posted in Injunctions

Injunctions are a powerful legal remedy, particularly in Intellectual Property and Commercial cases, which are a focus of this blog. This topic raises the issue of how injunction rules are applied / stretched to address a particular situation.

Gang injunctions appear to be an exception to most of the traditional injunction rules, which are (supposed to be) time tested equitable principles from English Common Law.  Traditional injunctions were supposed to be difficult to obtain and were to address only specifically identified issues in as narrowly tailored a means as possible to avoid irreparable harm, they require a bond by statute and by court rules, and allowed the enjoined party to move to dissolve the injunction.  The reference above to “narrowly tailored” is actually borrowed from constitutional principles that apply to statutory laws that infringe on American freedoms, however, here it is also a principle that applies to injunction orders.

In cities across America, local governments are imposing “teen” curfews, and taking steps intended to protect our youth and others from danger.   Continue Reading

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