Libel Tourism – Limiting Foreign Claims of Defamation

Have you ever heard the phrase “libel tourism?”  Libel tourism is the practice of suing an author or publisher in a country with less free speech protections than those given to Americans by U.S. law.  Libel is a form of defamation (when defamatory words are reduced to writing).

Here is the real world example of Rachel Ehrenfeld, a U.S. citizen who was sued in Britain by a Saudi billionaire she accused of financing terrorist groups.  According to the Sacramento Bee:

Never mind that she didn’t live in Britain and that her book wasn’t published there. (A few copies were purchased online.) Rather than face the high legal costs and burdens of proof in London, Ehrenfeld chose not to contest the case, and the court ruled against her by default, ordering her to pay hundreds of thousands of dollars in damages and legal fees.

This practice is called ‘forum shopping,’ where a plaintiff picks the most favorable jurisdiction to sue in, and files suit there.  American courts do not like plaintiffs who forum shop, and several states have tried to limit this practice.  The Bee also reported:

Several states have enacted so-called Rachel’s Laws to prevent libel tourists from using U.S. courts to enforce foreign judgments. California’s version, enacted last year, says that state courts won’t enforce libel judgments from other nations unless the foreign defamation law “provided at least as much protection for freedom of speech and the press as provided by both the United States and California constitutions.”

However, the House of Representatives passed a Bill this week aimed at shielding U.S. journalists, authors and publishers from “libel tourists.”  The measure would prevent U.S. federal courts from recognizing a foreign judgment for defamation that is inconsistent with the First Amendment, which guarantees freedom of speech.

This is good news for publishers and authors who wish to express their opinions.

Eric Goodman

eric@goodmanmooney.com

Trademark Infringement Photo #13

Amanda Mooney

amanda@goodmanmooney.com

Gizmodo, Apple, Gawker, and the iPhone4 Settlement

We reported a month or so ago on the iPhone4 ‘incident.’  If you’re not up to speed on what transpired, read this article.

If you are up to speed, here is what went down a few days ago.  According to PC Mag:

Gawker Media and Gizmodo have agreed to voluntarily turn over relevant documents to authorities, according to a report.

That deal apparently persuaded a California judge to void a search warrant against Gawker, Gizmodo, and editor Jason Chen, Wired reported.

Gawker and Gizmodo will voluntarily turn over the documents that the San Mateo County District Attorney and its team require, Wired said. As a result, the search warrant will be withdrawn.

After the iPhone story broke, the authorities searched Jason Chen’s home.  Many attorney’s across the nation cried foul because reporters like Chen fall under a shield law.  California’s Penal Code section 1524(g), which disallows the use of warrants to obtain “unpublished information obtained or prepared in gathering, receiving or processing information for communication to the public.”

Eric Goodman

eric@goodmanmooney.com

Patent Troll on a Money Making Rampage

Did you know that companies are allowed to collect patents for inventions they never plan to manufacture?  These “patent trolls,” can then opportunistically sue alleged infringers.

Peter Detkin, the assistant general counsel for Intel, coined the term “patent trolls” in the 1990s, to describe “somebody who tries to make a lot of money off a patent that they are not practicing and have no intention of practicing and in most cases never practiced.”  Patent licensing is a $100 billion dollar business, and these patent trolls are taking an ever increasing piece of the pie.

For example, NTP Inc., a patent holding company…er patent troll…, filed lawsuits last week against Google, LG Electronics, Apple, HTC, Microsoft and Motorola for infringements of eight patents NTP owns related to wireless e-mail delivery.

According to CNN Money:

““The filing of suit today is necessary to ensure that those companies who are infringing NTP’s patents will be required to pay a licensing fee,” NTP cofounder Donald Stout said in a prepared statement. The lawsuits were filed in U.S. District Court for the Eastern District of Virginia.”

A few years ago NTP settled a similar lawsuit with Research in Motion (the makers of the mighty Blackberry) for $613 million.

In light of these practices, a bill has been proposed in the Senate that may bring significant changes to the USPTO, including a transition from a “first-to-invent” system to a “first-to-file” approach.  Interestingly, the U.S. is the only major country that gives patents to those who can prove they invented an item, device, or gizmo before someone else’s patent was filed.  This is a widely debated issue that we will follow closely.

Eric Goodman

eric@goodmanmooney.com

Sneaky IP Lawyer Loses Bid for Trillions

There is provision in patent law that allows a citizen to sue a company that deceives the public by using false patent numbers.  This is important because last year, the U.S. Court of Appeals for the Federal Circuit made false marketing lawsuits much more attractive with its decision in Forest Group Inc. v. Bon Tool Co.. That decision stated that a court can award a winning false-marking plaintiff damages of up to $500 per individual falsely marked product.

Now, I want you to imagine something.  Imagine a company develops and manufactures a new type of pencil.  Knowing it has a great product, but in a rush to market and sell it, the company stamps on the pencil fake patent numbers to discourage counterfeiters.  Then the company goes on and sells millions of pencils.  Theoretically, under these circumstances, any person who realized that the patent numbers were fake could sue for $500 per pencil.

Needless to say, someone could sue for an absurd amount of money given the right circumstances.

Well, San Diego patent lawyer Matthew Pequignot tried just that, and sued for trillions after realizing that patent markings on the lid to his daily cup of coffee (made by Solo Cup) had actually expired several years before.

However, he lost his quest in a ruling last month. The Court of Appeals found that Pequignot failed to prove the defendant company intended to deceive the public with its false mark, a requirement under the recovery statute.  If Solo had intentionally kept stamping the false markings on the cups, then we might be telling a different story.

According to the ABA Journal:

“Billions of Solo’s cup lids were made with improper marks. The court noted in a footnote to its Solo Cup opinion (PDF) that Pequignot’s quest for $500 in damages for each improperly marked product would produce an award to the United States of $5.4 trillion, an amount sufficient to pay 42 percent of the country’s national debt.”

Although we applaud Pequignot’s ingenuity and guts, this seems like a clear effort to take advantage of a poorly thought through statute.  But the law is what it is, and until the legislature changes it, or a court overrules it, it exists.

Eric Goodman

eric@goodmanmooney.com

McFest v. McDonalds – It’s Settled…

Not long ago we blogged about Lauren McClusky and “McFest,” her annual charity benefit concert for the Special Olympics.  Big bad mean McDonald’s wasn’t too thrilled with her trademark application (for the name ‘McFest’), and a dispute arose.

Well, we are happy to note that the case has settled.  According to the Chicago Sun-Times:

But now the beef’s been settled. McClusky, a college student from Chicago who’s raised about $40,000 for Special Olympics, has agreed to give up the “McFest” name in exchange for two years of sponsorship.

“It just really came down to what was best for Special Olympics,” says McClusky, who attends Boston University and is the daughter of Chicago concert promoter Jeff McClusky.

This year’s show — targeting high school and college students — will be held Aug. 4 at Metro.

The new name? Nelarusky, taken from the mixed-up letters of her first name and the “sky” from her last name.

“We wanted to come up with something completely different and a name we thought would stick with people,” says McClusky.

Good job, Lauren!  Or, I guess we should say, “Good job, Lauren’s attorneys!”

Amanda Mooney

amanda@goodmanmooney.com

CNBC Crime Inc. – Counterfeit Goods premiers today

Counterfeit goods are a $600 billion dollar problem.  Depending on the client needs, we spend a large chunk of our time protecting clients and trademark owners from this issue.  That’s why we are excited about tonight’s premiere of CNBC’s Crime Inc. – Counterfeit Goods.  We hope this show raises awareness of how large the problem is, and spurs business owners to take the appropriate protective measures.

According to CNBC’s website:

Fake handbags, watches, shoes and perfumes. The business of Counterfeit Goods is the largest underground industry in the world. Hundreds of billions of dollars are generated while sapping the economy, putting lives in jeopardy, and funding organized crime in the process.

CNBC’s “Crime Inc.: Counterfeit Goods,” takes viewers on a rare look inside a global crime spree, where the goods are produced and confiscated in a world of high-risk and high-reward.

Host Carl Quintanilla takes you on raids with the LAPD anti-counterfeiting unit, inspections at ports, and back-room factories where counterfeits are produced. Meet a company whose whole brand was copied, and the story of a defense contractor who counterfeit defense parts that found their way into weapons depots in Iraq.

At around 7% of all global trade, Counterfeit Goods are a big business with low overhead. It makes too much money to go away any time soon.

The next time you buy a pair of Timberland boots, you might want to think about whether they are actually Timberland boots.

The show Premieres tonight, July 14th  9p | 10p | 12a | 1a ET.  It will also air on Saturday, 7/18 at 10PM ET; Thursday, 7/22 at 8PM & 12AM ET; and Sunday, 7/25 at 1AM ET

Eric Goodman

eric@goodmanmooney.com

Trademark Infringement Photo #10

Eric Goodman

eric@goodmanmooney.com

Trademark Infringement Photo #9

Eric Goodman

eric@goodmanmooney.com

Trademark Infringement Photo #8

Amanda Mooney

amanda@goodmanmooney.com