Goodridge Decision Spawns Action
July 21, 2004
Although the average American might feel that same-sex marriages in Massachusetts materialized overnight, activists who have worked on the issue say that the <i>Goodridge</i> decision by the Massachusetts Supreme Judicial Court (SJC) in November 2003 was not a complete surprise. <i>Goodridge was</i> the result of a well-planned, long-term strategy by same-sex marriage proponents to bring the issue into the legal, cultural, and political mainstream.
Federal Marriage Amendment Defeat Signals Start of Long Battle
July 21, 2004
July 14 marked the first salvo in what is anticipated to be a long and contentious battle about whether the U.S. Congress should expand its influence over the definition of marriage in the United States. Spurred by the <i>Goodridge</i> decision, conservative members of Congress introduced the Federal Marriage Amendment to provide additional support for the definition of marriage as solely between one man and one woman. The most prominent of these efforts has so far yielded the most high-profile defeat for traditional marriage advocates: a 50-48 loss on a procedural measure related to the Federal Marriage Amendment (SJR 30).
IP News
July 12, 2004
Highlights of the latest intellectual property news from around the country.
The Federal Courts' View of the State of Dilution in the States
July 12, 2004
The <i>Victoria's Secret</i> case raised the hurdle for plaintiffs claiming dilution under the Lanham Act, generally making it much harder to prevail in a federal dilution action. The Supreme Court followed the plain meaning of the statute in interpreting the Federal Trademark Dilution Act (FTDA), 15 U.S.C. §1125(c) [Sec. 43(c) of the Lanham Act] to require a showing of "actual dilution" in <i>Moseley v. V Secret Catalogue, Inc.,</i> 537 U.S. 418 (2003) (hereinafter "<i>Victoria's Secret</i>"). The Supreme Court got to this position in part by contrasting 43(c) with the language of state dilution laws, which in many cases do not require actual dilution (and recognize tarnishment, besides). Some state laws can, in theory, help plaintiffs with a dilution claim. This article examines how this is actually playing out.
A Gala Day for Comparative Advertising
July 12, 2004
Given the expense and burden of resolving false advertising cases in federal court, the promise of an expedient and less expensive alternate forum invites attention. Adding to speed and thrift an assurance that ads will be assessed by experts in the field makes the forum more interesting still. What is this alluring avenue of adjudication? For 33 years, the National Advertising Division of the Better Business Bureau (NAD) has sought to provide just such a mechanism. Yet, even for long-time veterans of federal proceedings, the NAD may be terra incognita. One recent decision by the NAD, <i>In re Distillerie Stock USA Ltd.,</i> NAD Case No. 4197 (June 2004), reveals both benefits and drawbacks of the forum, particularly in how some familiar yet some unique allocations of the burdens of proof can produce results both similar to and quite unlike those in federal court.
Knorr-Bremse and the Potential Modification of the Adverse-Inference Rule
July 12, 2004
The near future may bring fundamental changes to patent practice in the United States. On Sept. 26, 2003, the Federal Circuit ordered, <i>sua sponte,</i> the <i>en banc</i> consideration of the Eastern District of Virginia's decision in <i>Knorr-Bremse Systeme Fuer Nutzfahrzeuge GmbH v. Dana Corp,</i> 344 F.3d 1336 (Fed. Cir. 2003). In its order, the court sought answers to questions that analyze its current precedent that authorizes the trier of fact to impose an adverse inference of willful patent infringement where accused infringers invoke the attorney-client privilege. On Feb. 5, 2004, the Federal Circuit heard arguments in the appeal. A decision is pending.
ADR Across the Pond: The Right to Refuse
July 09, 2004
There has been a great deal of debate recently in the English courts and legal press about two key issues relating to Alternative Dispute Resolution (ADR). First, whether the court has the power to order unwilling parties to undertake ADR. Second, whether a successful party should be penalized in costs if it has refused ADR.
