A recent case by a California Court of Appeal provides a reminder for homeowners and contractors that California’s requirement that “home improvement contracts” must be in writing does not necessarily prevent a contractor from enforcing an oral contract for payment, when fairness and justice so require; and, that a homeowner’s tactics in dealing with a contractor should be considered very carefully.
In Au-Tomotive Gold Inc. v. Volkswagen of America, Inc., 603 F.3d 1133 (9th Cir. May 6, 2010), the Ninth Circuit refused to extend the First Sale Doctrine as a defense in circumstances where a likelihood of post-sale confusion as to the origin of the accused goods exists.
The importation of gray market branded clothing into the U.S. and other countries has created a significant disadvantage for authorized distributors, who have to pay substantially higher prices for the same branded clothing, but which is being sold for less by gray marketers.
n the last post on Electronic Discovery Compliance, this blog explored Judge Sheindlin’s most recent decision involving litigation opponents’ duties to preserve and produce evidence during litigation, The Pension Committee of the University of Montreal Pension Plan v. Banc of America Sec., LLC. In May 2010, Judge Sheindlin entered an important amendment to her decision.
Many cities in California, starting with San Francisco, have enacted or are considering bans on plastic shopping bags. The Save the Plastic Bag Coalition has been striking back. Its case against the City of Manhattan Beach was recently accepted for review by the California Supreme Court.
In the decision of Silvaco Data Systems. v. Intel Corporation (April 29, 2010), Judge Conrad Rushing of the Sixth Appellate District of the California Court of Appeal has authored a compelling and fascinating opinion.
Handling an appeal? Worried about what to designate for the record? Judge Conrad Rushing of California’s sixth appellate district has some guidance for you. His decision in Silvaco Data Systems, Inc. v. Intel Corporation has important advice for any appellate advocate.
In January of this year, Judge Shira Sheindlin of the Southern District of New York issued a decision reaffirming and expanding on crucial electronic discovery issues she highlighted six years earlier, in her groundbreaking “Zubulake” case. The new case, The Pension Committee of the University of Montreal Pension Plan v. Banc of America Sec., LLC ((2010) No. 05 Civ. 9016) provided Judge Sheindlin the opportunity to more fully examine the duties of parties to litigation to preserve information, and provide guidance on when sanctions should be imposed for misconduct during the discovery process.
“Gray market” is the phrase used to describe the sale of new, used, surplus and refurbished products through unauthorized resellers or channels. Gray market goods, also commonly referred to as “parallel imports,” may be considered unlawful when imported to the United States and sold in competition with authorized U.S. distributors.
The general rule followed by the courts is that identical goods sold in an unauthorized manner are not genuine for purposes of the Lanham Act, which regulates U.S. trademarks. For instance, in Caterpillar, Inc. v. Nationwide Equipment, 877 F. Supp. 611 (M.D. Fla. 1994), the court placed particular emphasis on a manufacturer’s inability to maintain quality control over an unauthorized distributor’s sale of its products. In Caterpillar, the defendant sold, without authorization, products manufactured using Caterpillar’s components and trademarks. Defendants obtained certificates of origin from Caterpillar for the component parts of the machinery but used those certificates to represent falsely that the machines were Caterpillar. The court determined that the wide variance in quality control in the manufacturing process contributed to a presumption of customer confusion. The defendant’s deceptive business practices did not help its cause.
To minimize the risk of liability a gray marketer must minimize the likelihood customer confusion over whether the goods sold are backed by an authorized dealer’s good will and the manufacturer’s warranty. Gray marketers should advise prospective purchasers that the goods being offered are not simply the same goods offered by authorized dealers, but at lower prices, and that the product is not covered by any applicable warranties. Gray marketers should also avoid procuring goods and redistributing them in territories that are already covered by exclusive distribution agreements – the existence of the exclusive agreement is strong evidence that the manufacturer never intended that the goods be resold in these territories. Under these circumstances, gray marketers may face related tort claims for knowingly interfering with or circumventing existing distribution agreements.
The range of “unauthorized” conduct that can turn the resale of otherwise genuine goods into a Lanham Act violation or other liability is great. To the extent that gray marketers engage in deceptive practices in addition to committing the mistakes described above, courts will likely interpret the Lanham Act more liberally to impose liability.
Andrew P. Holland, Litigation Group