| IP News |
12/31. Limbach &
Limbach, a San Francisco based intellectual property
firm, with an emphasis on patent prosecution and litigation,
ceased providing legal services.
12/29. The U.S.
Court of Appeals (9th Cir.) issued its opinion
in Kassbaum
v. Steppenwolf Productions, Inc. (SPI), a case
involving § 32(1)(a) of the Lanham
Act. At issue is whether Nicholas Kassbaum, a
former bass player for the sixties biker band Steppenwolf, can
refer to himself as a "former member of Steppenwolf"
in promotional materials. Kassbaum now plays in a band of
geriatric rock stars known as the World
Classic Rockers. Kassbaum also signed a contract
with SPI in 1980 that included broad language -- "waive,
relinquish and release any and all . . . rights in the name 'STEPPENWOLF'
or any other word or phrase incorporating the name 'STEPPENWOLF'
for any purpose whatsoever". The District Court held that
Kassbaum both breached the contract and violated the Lanham
Act. The Court did not rule on three other claims (unfair
competition, trademark infringement and dilution of
trademark). The unanimous Appeals Court panel reversed on both
the contract and Lanham Act grounds, and remanded. The Appeals
Court ruled that Kassbaum's references to his prior membership
in Steppenwolf would not create a "likelihood of
confusion." The Court also quoted from Justice Holmes'
opinion in Prestonettes:
"When the mark is used in a way that does not deceive the
public we see no such sanctity in the word as to prevent its
being used to tell the truth." Kassbaum and John Kay (SPI)
have a long history of disputes and litigation. There were
born to be litigious. See also, Steppenwolf's
Greatest Hits at Amazon.com.
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Napster
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12/28. Napster
filed a complaint in U.S. District Court (NDCal)
against online retailer Sport
Service alleging violation of trademark
laws. Napster, which has been sued by recording companies for
infringing their copyrights, alleges that the defendant is
selling t-shirts and hats with its name and logo at napsterstore.com in
violation of its trademark rights. Napster applied to the USPTO for a
trademark on Sept. 27, 2000 for the design of a cat with
earphones (displayed above right). (See, USPTO No. 76137325.
See also, TESS.)
12/28. The European
Patent Office put 51
Board of Appeals Decisions online in its web site in PDF.
The decisions are dated May through December of 2000. |
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| New Documents |
USCA:
Opinion
in Kassbaum v. Steppenwolf re Lanham Act, 12/29 (PDF, USCA).
Milberg:
Complaint
against PSINet under federal securities laws, 12/29 (PDF,
Milberg).
Milberg:
Complaint
against Network Associates under federal securities laws,
12/29 (PDF, Milberg).
NIPC:
Advisory
re DDOS attacks, 12/29 (HTML, NIPC).
SEC: Complaint
against IBM, 12/21/00 (HTML, TLJ).
SEC: Order
Instituting Admin. Proceeding against IBM, 12/21/00
(HTML, TLJ).
CIA: report
predicting political, military, economic, and technological
developments in the next 15 years, undated (HTML, CIA). |
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| News Briefs |
12/31. The FCC did not
meet its self imposed deadline of Dec. 31, 2000 for completing
its review of the merger of AOL and Time Warner. Nor
has it completed its review within 180 days of the filing of
the application
on Feb. 11, 2000. The FCC has promulgated no rules governing
its antitrust
merger review proceedings. However, it does have an
informal timelime
that provides for completion of reviews within 180 days. See
also, FCC's
AOL TW web page.
12/29. Bill Clinton announced three recess appointments to the
National Commission on
Libraries and Information Science (NCLIS): Donald
Robinson, Marilyn Mason, and Paulette Holahan. The NCLIS,
which is composed of 14 members who serve 5 year terms, is an
advisory agency only. It advises the President and Congress on
library and information services policies and plans. Recently,
it has studied and issued reports that address protecting
children from Internet porn. See, Clinton statements re Robinson,
Mason,
and Holahan.
12/29. The Antitrust
Division of the USDOJ
published in the Federal Register a notice that lists new
members of the Wireless Application Protocol (WAP)
Forum. The WAP Forum provided the list to the DOJ and FTC for
the purpose of limiting the recovery of antitrust plaintiffs
to actual damages under specified circumstances, pursuant to §
6(a) of the NCRP Act. The See, Federal Register,
Dec. 29, 2000, Vol. 65, No. 251, at page 83096 - 83098.
12/29. The FBI's NIPC
issued an advisory
dated Dec. 28 regarding possible distributed denial of
service attacks (DDOS). It stated: "Based on FBI
investigations and other information, the NIPC advises taking
some extra precautions in computer security over the holiday
period to reduce the possibility of, or damage from,
Distributed Denial-of-Service (DDOS) and other cyber attacks
which could occur. The NIPC believes DDOS attacks could occur
over the holiday. Several security companies have cited the
threat of DDOS attacks, and some have taken place
already." See, Advisory No. 00-063. The NIPC issues three
levels of warnings: assessments, advisories, and alerts.
Advisories, such the one released on Dec. 28, are of the
middle level of significance.
12/28. Bill Clinton signed an Executive
Order which revoked Executive
Order 12834, effective at noon on January 20, 2001. He
issued the original order on Jan. 20, 1993, just after taking
the oath of office. The original order barred senior
appointees in any executive agencies from lobbying any officer
or employee of that agency with five years after leaving
office. There is still a one year bar on lobbying imposed by
statute. See also, statement
by Clinton aide Beth Nolan.
The CIA released a
report titled Global
Trends 2015: A Dialogue About the Future With Nongovernment
Experts that projects political, military, economic, and
technological developments in the next 15 years. It predicts
widespread wireless connectivity via hand-held devices and low
altitude satellites. It also predicts that "Societies
with advanced communications generally will worry about
threats to individual privacy. Others will worry about the
spread of 'cultural contamination.' Governments everywhere
will be simultaneously asked to foster the diffusion of IT
while controlling its 'harmful' effects." |
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| Securities Litigation |
12/29. An individual named Ilene Armour filed a complaint
[PDF] in U.S. District Court (NDCal)
against Network Associates, Inc.
(NAI), its CEO, William Larson, and its CFO, Prabhat Goyal,
alleging violation of federal securities laws. The plaintiff,
who seeks class action status, is represented by several law
firms, including Milberg
Weiss. Count one alleges violation of § 10(b) of the Exchange Act,
and Rule
10(b)(5) thereunder (fraud). Count two alleges
violation of § 20(a) of the Exchange Act
(controlling person liability). NAI is based in Santa Clara,
Calif., and makes network and computer security products,
including firewall, intrusion detection encryption, sniffer,
network management, and anti-virus products. This action seeks
to represent purchasers of NAI stock between July 19, 2000 and
Dec. 26, 2000. There is another action brought under federal
securities law in the U.S. District Court (NDCal) against NAI
that has been certified as a class action: In re
Network Associates Inc. Securities Litigation.
Robert Vatuone is the lead plaintiff; Lieff Cabraser is lead
counsel; and Judge William Alsup is presiding. It is in
pre-trial discovery. The class period for that action is Jan.
1998 through April 1999. Milberg Weiss had sought
unsuccessfully to be appointed lead counsel in that case also.
12/28. A company named Creedon Capital Management filed a complaint
[PDF] in U.S. District Court (EDVa)
against PSINet, and
several of its officers and directors, alleging violation of
federal securities laws. The plaintiff, who seeks class action
status, is represented by several law firms, including Milberg Weiss. Count one
alleges violation of § 11 of the Securities Act. Count
two alleges violation of § 12(a)(2) of the Securities
Act. Count three alleges violation of § 15 of the
Securities Act. On Nov. 3, 2000, Milberg Weiss filed another
class action complaint in the same court against PSINet
alleging violation federal securities laws. The Court
dismissed that complaint (and 13 of 14 other complaints) on
Dec. 21, 2000. That action sought to represent all purchasers
of PSINet stock between May 9, 2000 and Nov. 2, 2000. The just
filed action seeks to represent purchasers of shares of the 7%
Series D cumulative convertible preferred stock of PSINet
pursuant and/or traceable to the its Aug. 3, 2000 Prospectus.
PSINet provides corporate Internet access, private IP
networks, Internet security, web and database hosting
services, e-commerce solutions, and voice, fax, live
audio-video, and other applications. Milberg Weiss specializes
in bringing securities class action suits against technology
companies when their stock prices drop. |
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| Editor's Note: This column includes all News Briefs
added to Tech Law Journal since the last Daily E-Mail Alert.
The date indicates when the event occurred, not the date of
posting to Tech Law Journal. |
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| People |
12/29. Cal. Gov. Gray
Davis nominated Joan
Irion to be a judge of the San Diego County Superior
Court. Irion is currently managing shareholder of the San
Diego based law firm of Heller
Ehrman. She is a tax specialist whose work includes tax
aspects of e-commerce, technology and intellectual property.
See, Davis
release.
12/26. Brinks
Hofer, an intellectual property law firm based in Chicago,
announced that it has named six new shareholders, effective
Jan. 1: John Gabrielides, Shannon Mrksich, Joseph Norvell,
Steven Oberholtzer, Helen Odar, and Andrew Stover. The firm
also named 3 counsel: Colleen Butler, Daniel Schein, and James
Richardson. In addition, the firm announced the hiring of 22
new associates and 2 scientific advisors. See, release. |
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| People's Republic of China |
1/1. The PRC state news agency Xinhua
reported that "A CDMA
mobile communications network managed by the military was
officially handed over to the China United Telecommunications
Corporation (China Unicom) Monday in Beijing." See, Xinhua
release.
12/29. The Information
Office of the State Council (SCIO) of the People's
Republic of China (PRC) issued licenses to Internet content
providers Sina.com and Sohu.com to operate in the
PRC. SCIO regulates foreign media in the PRC, including
Internet content and services providers. Sohu.com Inc. is a
Delaware corporate based in Beijing. It wrote in its Nov.
14, 2000 10-Q Statement filed with the SEC that "Even
if we are in compliance with PRC governmental regulations
relating to licensing and foreign investment prohibitions, the
PRC government may prevent us from distributing, and we may be
subject to liability for, content that it believes is
inappropriate." Sina.com Inc. is based in Sunnyvale
California and Hong Kong. It wrote in its Nov.
14, 2000 10-Q Statement filed with the SEC that "The
telecommunication, information and media industries in China
remain highly regulated. Although the Company believes its
business in China is in compliance with existing Chinese laws
and regulations, the Company cannot be sure that the Chinese
regulatory authorities will view such business as in
compliance with Chinese laws and regulations."
12/28. The PRC state news agency Xinhua
reported that the Standing Committee of the National People's
Congress adopted an "Internet safety" law. It stated
that "The decision on Internet Safety stipulates that
intrusions into the computer networks of state affairs,
national defense and high-tech fields shall be punishable in
accordance with the criminal law, as will the production and
transmission of computer viruses. Using computer networks, or
the Internet, for the purpose of subverting the government,
splitting national unity or committing other crimes shall be
penalized according to law. See, Xinhua
release. |
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