Top 10 Trademark Cases for the Month of December 2010

1. United States v. Neuman, No. 09-30705, UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT, 2010 U.S. App. LEXIS 26384, December 28, 2010, Filed,  PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

OVERVIEW:  Sufficient evidence showed that defendant knew that goods were counterfeit and that they had come from China under 18 U.S.C.S. §§ 371, 545, and 2320 because defendant was put on notice that he might be selling counterfeit products, he continued to sell them, a supplier told him the goods came from China, and he admitted that goods were counterfeit.

CORE TERMS:  counterfeit, sentence, supplier, warehouse, e-mails, guidelines, gambling losses, restitution, sentencing, downward ...

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2. Bd. of Regents of the Univ. of Wis. Sys. v. Phoenix Int'l Software, Inc., No. 08-4164, UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT, 2010 U.S. App. LEXIS 26269, June 4, 2009, Argued, December 28, 2010, Decided

OVERVIEW:  In 15 U.S.C.S. § 1071(b) case, likelihood of confusion test was misapplied and Trademark Trial and Appeal Board's factual findings improperly rejected; mark owner's rights extended to goods that might be, in consumers' minds, related or put out by a single producer, so inquiry should have been whether products were likely to be wrongly attributed.

CORE TERMS:  sovereign immunity, immunity, software, trademark, patent, mainframe, registration, counterclaim, infringement, sovereign ...

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3. In re Carmine's Broadway Feast, Inc., 2010-1528, UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT, 2010 U.S. App. LEXIS 26342, December 28, 2010, Decided, December 28, 2010, Filed,  THIS DECISION WAS ISSUED AS UNPUBLISHED OR NONPRECEDENTIAL AND MAY NOT BE CITED AS PRECEDENT. PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

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4. Breakthrough Mgmt. Group, Inc. v. Chukchansi Gold Casino & Resort, Nos. 08-1298, 08-1305, 08-1317, UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT, 2010 U.S. App. LEXIS 26210, December 27, 2010, Filed

OVERVIEW:  Because a tribal resolution creating a Development Authority (DA) stated the DA and a Casino it operated were created under the Tribe's constitution and described the DA as a body corporate and politic and an instrumentality of the Tribal Government and an authorized tribal agency, refusal to grant those entities tribal immunity was reversed.

CORE TERMS:  tribe's, tribal, casino, sovereign immunity, entity, immunity, discovery, subordinate, economic development, cross-appeal ...

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5. Wachovia Bank v. Tien, No. 08-15542 Non-Argument Calendar, UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT, 2010 U.S. App. LEXIS 26089, December 22, 2010, Decided, December 22, 2010, Filed,  PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

OVERVIEW:  Where an interpleader claimant falsified documents, took advantage of his family's trust, and opened secret accounts in a fictitious name, to embezzle more than $61 million, and while litigating his frivolous claim for 4 years a replevin action was required the production of discovery documents, $3.4 million in sanctions against him was affirmed.

CORE TERMS:  discovery, interpleader, bad-faith, ownership, interpleader action, sanctions award, cross-claim, knowingly, interpleaded, settlement ...

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6. Spansion, Inc. v. ITC, 2009-1460, 2009-1461, 2009-1462, 2009-1465, UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT, 2010 U.S. App. LEXIS 25900, December 21, 2010, Decided

OVERVIEW:  Where the dispute was whether the accused imported computer chips met the moveable limitation found in all the asserted claims of two patents, the International Trade Commission's final order finding violations of 19 U.S.C.S. § 1337 and direct and contributory infringement under 35 U.S.C.S. § 271(c) was supported by substantial evidence.

CORE TERMS:  chip, package, patent, infringement, load, terminal, semiconductor, external, thermal, invention ...

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7. Daniels-Hall v. Nat'l Educ. Ass'n, No. 08-35531, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 2010 U.S. App. LEXIS 25894, July 10, 2009, Argued and Submitted, Seattle, Washington, December 20, 2010, Filed

OVERVIEW:  Retirement annuities marketed by a union to public school district employees were not subject to ERISA; the union's marketing program was not an "employee pension benefit plan" under 29 U.S.C.S. § 1002(2)(A), and the employees' 26 U.S.C.S. § 403(b) plans fell under the governmental plans exception, 29 U.S.C.S. § 1003(b)(1).

CORE TERMS:  annuity, school districts, employee pension benefit plan, annuity contracts, safe harbor, retirement plan, retirement, vendor, prospectus, website ...

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8. Mian Zeeshan Aslam v. AG of the United States, Nos. 09-3078 and 09-4599, UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT, 2010 U.S. App. LEXIS 25857, December 17, 2010, Submitted Under Third Circuit L.A.R. 34.1(a), December 17, 2010, Filed,  NOT PRECEDENTIAL OPINION UNDER THIRD CIRCUIT INTERNAL OPERATING PROCEDURE RULE 5.7. SUCH OPINIONS ARE NOT REGARDED AS PRECEDENTS WHICH BIND THE COURT. PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

OVERVIEW:  Petitioner's conviction under 18 U.S.C.S. § 545 for smuggling merchandise imported "contrary to law" in violation of 18 U.S.C.S. §§ 2319 and 2320, related to counterfeiting and was thus an aggravated felony under 8 U.S.C.S. § 1101(a)(43)(A), so petitioner was removable under 8 U.S.C.S. § 1227(a)(2)(A)(iii).

CORE TERMS:  counterfeiting, felony, aggravated, removal, withholding, categorical, reopen, alien's, counterfeit, asylum ...

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9. Ichie Chibuzo Onwuchekwe v. Okeke, No. 09-20713 Summary Calendar, UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT, 2010 U.S. App. LEXIS 25791, December 16, 2010, Filed,  PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

CORE TERMS:  electronic, email, filing system, neglect, abuse of discretion, notice of appeal, excusable, notice

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10. Joseph Oat Holdings, Inc. v. RCM Digesters, Inc., No. 09-4208, UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT, 2010 U.S. App. LEXIS 25375, September 15, 2010, Argued, December 13, 2010, Filed,  NOT PRECEDENTIAL OPINION UNDER THIRD CIRCUIT INTERNAL OPERATING PROCEDURE RULE 5.7. SUCH OPINIONS ARE NOT REGARDED AS PRECEDENTS WHICH BIND THE COURT. PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

OVERVIEW:  Since it remained disputed whether the subsidiary and its employees had authorization to access the server, the element required under Cal. Penal Code § 502(c) and N.J. Stat. Ann. § 2A:38A-3, and required as the predicate unlawful business practice to show a violation of Cal. Bus. & Prof. Code § 17200, the grant of summary judgment was vacated.

CORE TERMS:  server, summary judgment, digester, network, anti-hacking, discovery, computer system, separation agreement, electronic, injunction ...

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