Court Negates Revised Article 9
February 10, 2004
The law of consignment sales of goods — under which merchandise is delivered by a seller (a "consignor") to another person (a "consignee") to hold for sale to a third party — has long been a source of confusion and uncertainty for both consignors (seeking to protect their rights to their consigned goods) and creditors of the consignee (seeking to satisfy their claims against the consignee and its assets). Prior to the enactment in 2001 of revised Article 9 ("Revised Article 9") of the Uniform Commercial Code (UCC), the treatment of consignment sales had straddled both Article 2 of the UCC, which covers the sale of goods, and Article 9 of the UCC, which covers the creation and perfection of a security interest in goods. The drafters of Revised Article 9 sought to eliminate this confusion by removing all regulation of consignment sales from UCC Article 2, and lodging all regulation of consignments under the UCC (to the extent not covered by common law) squarely within UCC Article 9. However, the recent Bankruptcy Court decision in the case of In re Morgansen's Ltd., 302 B.R. 784 (Bankr. E.D.N.Y., Oct. 14, 2003) would, if sustained on appeal, negate many of the improvements introduced by Revised Article 9 and wreak havoc on the treatment of consignment sales of consumer goods and other "true" consignments not expressly covered by Revised Article 9.
FTC Approves 'Merger to Monopoly' in Innovation Market
February 10, 2004
The intersection of intellectual property and antitrust has been the subject of much fanfare over the past decade. The antitrust agencies have held numerous workshops where enforcement officials and practitioners have debated the scope and limitations of antitrust when such principles intersect with IP rights. The most notable work product generated as a result of this focus has been the 1995 Guidelines setting forth antitrust policy for the Licensing of Intellectual Property issued by the Department of Justice (DOJ) and the Federal Trade Commission (FTC).
Utmost Caution: The Standard of Conduct for SSO Participants
February 10, 2004
The legal odyssey of Rambus, Inc. ("Rambus") over the last 4 years is a cautionary tale for companies that participate in standards-setting organizations (SSO) while developing and maintaining patent portfolios. Although Rambus has successfully defeated claims brought by Infineon Technologies, A.G. ("Infineon") that Rambus engaged in fraud while participating in an SSO, and while Rambus appears poised to beat back claims brought by the U.S. Federal Trade Commission (FTC), the cost to the company has been substantial.
Dilution Differences
February 10, 2004
The Federal Trademark Dilution Act (FTDA) provides that the owner of a famous mark is entitled to injunctive relief against another's use of a mark or trade name that causes dilution of the distinctive quality of the famous mark. In <i>Moseley v. V Secret Catalogue, Inc.</i>, 537 U.S. 418 (2003), the U.S. Supreme Court considered whether the FTDA requires proof of actual harm or merely a likelihood of harm. The Supreme Court's decision raised the dilution bar by holding that a prerequisite to relief under the FTDA is proof of "actual" dilution, <i>ie</i>, objective proof of actual injury to the economic value of the mark, rather than a mere showing of a presumption of harm based on a subjective "likelihood of dilution" standard.
IP News
February 10, 2004
Recent rulings of importance to your practice.
Vigilance and Planning Are Necessary in Bankruptcy Matters
February 09, 2004
Two recent decisions by the U.S. Court of Appeals for the Seventh Circuit have attracted the attention of leasing lawyers. Both of those cases demonstrate that landlords and tenants alike may be taken by surprise by the operation of the Bankruptcy Code.
The Evolution of a Lease Provision: Sublease and Assignment
February 09, 2004
In the absence of a lease provision restricting subleasing and assignment, common law permits a tenant to freely sublease its leased premises or assign its leasehold interest in the leased premises. In order to provide for maximum landlord control over a tenant's ability to sublease or assign its leasehold interest, while at the same time balancing the need of tenants for an exit strategy, modern forms of leases contain extensive assignment and sublease provisions. This article traces the manner in which those provisions have evolved over the years.
In the Spotlight
February 09, 2004
Tenants that seek the future ability to sublease a portion of their space frequently settle for language to the effect that the landlord will not unreasonably withhold, delay, or condition its consent to a proposed sublease by the tenant. Unfortunately, this typical language only provides a tenant with minimal protection.
Case Briefing
February 09, 2004
Recent rulings of importance to your practice.
