South Carolina Intellectual Property Litigation

Intellectual Property & Litigation SC

The Rule of Law – Does It Make a Difference?

Posted in Constitution, General

Recently, my friend and U.S. Congressman Trey Gowdy spoke about the Rule of Law, specifically with respect to the President’s recent Executive Order regarding Immigration. With gridlock in D.C. being the norm, expect to hear a lot more about Executive powers. For example, commentators are suggesting Roberts is looking at approving some aspects of Obamacare under Executive interpretation powers, therefore, leaving those aspects up for elimination under a new administration. For 50-75 years, it has been expected that Executive interpretations of regulatory matters delegated by Congress would change when a different party occupies the White House.

In legal circles, this is the manifestation of what is known as Chevron deference, which gives the Executive branch power / discretion to interpret any ambiguities in a statute and enact regulations implementing their preferred interpretations (in theory eliminating the ambiguity). In effect, by this doctrine, the Executive branch gets the power to do what the Judicial branch normally does (i.e., interpret the law). Then, when parties come before the Judicial branch for resolution of their disputes related to the Executive interpretation in a regulation or in a policy statement or a guideline, the Judicial branch is obligated under Chevron to accept the Executive interpretation, as long as it is reasonable. As noted in the Roberts link above, the Judicial branch could then be obligated to accept two different interpretations resolving the same statutory ambiguity.
Continue reading “The Rule of Law – Does It Make a Difference?”

What about the Statute of Frauds (?), said the “Uniform Electronic Transactions Act” (UETA)

Posted in Electronic Signatures, General, Injunctions, Jury Issues / Trial, Real Estate

Despite its enactment in 2004 in most all of the 50 states, the Uniform Electronic Transactions Act (“UETA”) has not received the amount of attention one might expect. This is particularly true with respect to real estate transactions, for which it seems an overwhelming majority of real estate agents, brokers, realtors and others in the industry still think that “[t]he statute of frauds … requires some memorandum or note of the agreement relating to real estate to be in writing and signed by the party charged therewith or his agent.” For example, even the first source for legal research in South Carolina, S.C. Jurisprudence, the chapter on the Statute of Frauds, makes no mention of the UETA, its statutory origin at S.C. Code § 26-6-10 et seq., or its potential significance to parties negotiating a contract via email. In 2015, the vast majority of real estate transactions, whether residential or commercial, are handled by email.

According to the NCSL, 47 of the 50 states have enacted the UETA, with New York, Illinois and Washington being the exceptions, and even those states have enacted similar legislation.

Once again, despite the UETA being over 10 years old, and despite the fact that most UETA’s do not provide an exception to the applicability of the Act to “contracts for the sale of real property,” only a handful of cases can be found interpreting the UETA in conjunction with the well known SOF. Continue reading “What about the Statute of Frauds (?), said the “Uniform Electronic Transactions Act” (UETA)”

“Ready for Trial Your Honor” … the 12 month pledge

Posted in General, Jury Issues / Trial

This article by ACEDS on the recent sanctions levied against a major law firm in a patent trial which they won for their client raises numerous issues with the practice of law that need to change. The article refers to “structural woes,” of the legal system. Anyone who practices law can attest to the length of time it usually takes to bring a case to trial, and the costs of litigating a high stakes or even a low stakes case.

If the case is in state court and requires a trial of more than one week, getting the trial scheduled around the lawyers and clients schedules will likely require a herculean effort by itself, and if it is set in a rural county with not so many terms of court and one that almost never has two judges trying cases, good luck to you. Federal court cases with their court-produced scheduling orders tend to keep cases on track, and the fact that those cases are assigned to one judge who usually has a whole month term, the length of the trial as long as it is not more than two weeks should not be cause for delay.

Just recently, I was told by insurance company adjuster that because the opposing party could also afford to take the case to trial, it was very difficult to settle the case. Obviously this person has become accustomed to having time on his side. This comment also suggests reliance on the standard knee-jerk reaction Continue reading ““Ready for Trial Your Honor” … the 12 month pledge”

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 “Motive – Help Yourself”

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

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 Europe, The 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 “Follow me, don’t follow me, I’ve got my spine, I’ve got my orange crush …”

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

Give it Away… Do What?

Posted in General
In May 2012, in the beautiful city of Vancouver, British Columbia, I met Kevin O’Keefe with LexBlog. Kevin was invited as a speaker by another one of the member law firms in the Law Firm Alliance.
I had been very interested in blogging at that point in time, and shortly thereafter chose to start a blog on injunctions. The choice of the topic injunctions was based upon advice I had taken in from respected experts such as Mark Herrmann with AON, formerly of Jones Day? Specifically that advice was to blog on a narrow enough topic so that you didn’t feel like you had to cover the landscape of blogging.
In any event, I contacted my law partner at that time, Jack Pringle (@JJPringle), and he put me in touch with WordPress, much my brother, John see you, was also using to do his blog for the evidence class that he was teaching at the Charleston school of Law.
So, off I went to blog on injunctions. The first thing I did was to set up Google aAerts to provide me with daily, at least, emails regarding any reported stories on the web regarding injunctions. At this point, I was feeling pretty good. Google was providing me with all the information I needed only injunction stories. However, they still remained the task of learning how to blog, embedding links to other experts in the field, and, most importantly, providing the reader with something of value differentiated from the hundreds, if not thousands, of other sources of information on the Internet via bloggers.
My venture into was not exactly an overwhelming success, however, it was not exactly a failure either. The experience gained from working with the WordPress format headed to my skill set for future blogging. In addition, I started using or attempting to use social media to engage with readers, all six of them, including family members. Thank you mom and also all the members of your garden club that also followed my blog. You know I’ll always love you and appreciate your continued support.
So, you may be thinking, what in the “hell” does this have to do with intellectual property?
Well, that would seem to be a good question, and here is the answer … In keeping with Kevin O’Keefe’s advice to “give it away,” the proprietor of this blog is going to offer FREE one hour consultations to local companies on the subject of intellectual property. So many small, medium and large businesses underestimate the value of their intellectual property and / or fail to take advantage of securing their rights to increase the value of their businesses and protect them from trade secret misappropriation and / or unfair competition that could have been prevented.The intent of this is to “engage” with local businesses, in such a way that would allow me to better engage with those of you reading this on the blog, or elsewhere and social media, and also to give me reason to get out of the office and go to such wonderful places as: Hunter Gatherer (microbrewery), Immaculate Consumption (excellent coffeehouse, sandwiches have real horseradish, yum), and to get to know others with intellectual property needs to help me better serve existing and future clients.
With his finger on the pulse, I am, sincerely yours …
Note: to set up your appointment in the month of March, call me at 803–223-6942, or send an email at , or tweet to @WesFewSC, and please understand that email may be the least effective of those options 😉
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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 “Five Steps to Identify and Protect Your Trade Secrets”