Author Archive

California’s Anti-SLAPP Statute in Business Litigation

In 1992, when the California Legislature observed, “that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances” the legislature enacted a statute that earned the acronym SLAPP, which stands for “strategic lawsuits against public participation.”

Balancing a Celebrity’s Right of Publicity against First Amendment Rights of Expession

California has a law that states that: “Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent … shall be liable for any damages sustained by the person or persons injured as a result thereof.”

Recovery of Lost Profits in Business Litigation

Recovery of damages for lost profits in a business litigation case is subject to the general principle that damages must be proximately caused by the wrongful conduct of the defendant.

Recovery can be based upon a breach of contract or it could be from a civil wrong or tort. Examples of some torts are trademark infringement, copyright infringement, or interference with contract.

Mistakes Executives Make When They Lose Their Jobs

You are a highly skilled individual with a strong technical background and land a job as the Chief Technology Officer for a large Company in a specialized industry. The Company offers a great benefit package detailed in the company’s employee manual. After several years of hard work your Company is taken over, either by merger or acquisition, and the New Company terminates your position.

Fashion Designers Do Have Rights in Their Creations

In past articles I wrote about the challenges a fashion designer has in protecting his or her designs from knock offs. A United States Supreme Court case called Wal-Mart Stores v. Samara Brothers held with regard to trade dress protection under the Federal Unfair Competition laws found in the Lanham Act, a fashion designer must show their designs had secondary meaning.

A Penguin Cocktail Shaker and Trade Dress

In cases of product design, the consumer normally does not equate the features of the product with the source of the product. For example, if a consumer is looking at a cocktail shaker, the penguin shape is not intended to identify the manufacturer. Instead the shape is designed to render the product itself more useful or more appealing. This is the crux of the issue when a party is claiming its product design or trade dress is a protectible under the Lanham Act.

Knocking Off Clothing Designs Can be Unfair Competiton

How often do you see copies of a high fashion designer’s clothing or handbag line like Gucci or Prada appear in a discount store at significantly reduced prices? The fashion designer has used his or her creativity and intellectual capital to create unique product designs only to have that creation “knocked off” by apparently unscrupulous business people who take pictures of these masterpieces and have them copied in countries that supply low cost labor. These “knock offs” are then sold along side the designer’s couture line for less than half the price.