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ITC Has No Jurisdiction to Exclude Electronic Transmissions Under 19 U.S.C. 1337

In an interesting decision handed down by the Federal Circuit this week, it has been found that electronic transmissions of digital data are not “articles” which the International Trade Comissision (ITC) has jurisdiction to exlcude under 19 U.S.C. 1337.  ClearCorrect Operating, LLC v. International Trade Commission, Fed. Cir., No. 2014-1527 (Nov. 10, 2015).  After an interpretation of both the literal text of the statute as well as the legislative history, the Federal Circuit reversed the ITC’s prior determination, and found the term “articles” to clearly mean only “material things”.

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Changes to European (CTM) Trademark Registration in 2016

The CTM (Community Trade Mark) registration, which provides protection across most of Europe, has become a staple of international trademark portfolios since introduction in 1996.  But, some big changes are coming for the 20th anniversary.  Most notably, the CTM name will be changed to the “European Union Trade Mark.”  Also, the registrar’s office in Alicante, Spain, now known as OHIM (Office of Harmonization in the International Market), will be re-named as the “European Union Intellectual Property Office,” and the Community Trade Mark Courts will be called the “European Trade Mark Courts.”  Other technical changes will include new filing/renewal fee structures, stricter rules for listing goods and services, and some enhanced mechanisms for enforcement against infringers.  Final approval by the European Parliament is expected imminently, at which time most changes will become effective, but portions of the overhaul package will require adoption into the national laws of member countries.   The Firm continues to assist clients with trademark registration and enforcement in virtually every country of the world.

In-N-Out Burger Chain Sues Popular Food Delivery Startup for Trademark Infringement

In-N-Out, the popular California based fast food chain, has sued food delivery startup DoorDash for trademark infringement and unfair competition.

In the Complaint, In-N-Out claims that Defendant, DoorDash’s use of “Plaintiff’s famous trademarks implies that Defendant not only delivers In-N-Out products to its customers, but that the quality and services offered by Defendant is the same as if consumers had made purchases directly from Plaintiff. Upon information and belief, the quality of services offered by Defendant does not at all comport with the standards that consumers expect from Plaintiff’s goods and services. Further, Plaintiff has no control over the time it takes Defendant to deliver Plaintiff’s goods to consumers, or over the temperature at which the goods are kept during delivery, nor over the food handling and safety practices of Defendant’s delivery drivers. While Plaintiff adheres to the Food Code, on information and belief, Defendant does not adhere to such regulations, including with regard to compliance with required food safety and handling practices.”

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New Federal Rules of Civil Procedure (2015) and Effects on Patent Litigation

The new Federal Rules of Civil Procedure (FRCP) will take effect on December 1, 2015, and shall govern all proceedings in civil cases commenced thereafter.  Specific to patent litigation, the 2015 FRCP eliminated the previous form patent complaints (i.e. Civil Form 18) that allowed patentees to file a complaint without specifically setting forth its theory of infringement.  After taking effect, the new FRCP will require a patentee’s initial complaint to comply with the Supreme Court rulings in Twombly and Iqbal, under which the patentee must set forth sufficient facts to make a claim for relief plausible.  In patent cases, courts may therefore begin requiring a showing of which patent claims are being infringed and possibly the inclusion of at least one claim chart comparing the accused product with at least one claim.

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