Malloy & Malloy

Malloy & Malloy

Tuesday, 03 December 2019 15:39


In a world where online status is determined by how many Facebook users “like” your page and how many followers you have on Twitter, what happened to GAP of North America comes as no surprise to those of us who follow the many ways in which Facebook and Twitter are changing the rules of marketing and now it seems the world of trademarks. 
At first I was reluctant to write yet another blog entry on Facebook, but after noticing that more than fifty percent of my Facebook friends are complaining about the new privacy policy in their status I decided that non-Facebook users might want to know what all the cyber chatter is about. As you will recall, it was forecasted some months ago in Wired Magazine that Facebook would eventually harness its users’ information and offer the same to search engines. Following the article, Facebook changed its default privacy setting to allow advertisers to use their users’ pictures. The change resulted in many Facebook users logging in to alter the default setting. Now there are more changes to your Facebook default settings which the New York Times cleverly placed in a chart to make sense of the privacy mess. 
I took a few a minutes to change my default settings but according to Facebook I am in the minority. However given the length of the new policy, I think it’s safe to predict that sooner rather than later someone will challenge Facebook’s new policy and sue them for Copyright infringement and/or Right of Publicity. And while Facebook claims that users acquiesce to the policy by using the service, as the policy gets longer and more complicated, Facebook's ability to prove consent in court gets more and more difficult.
Till then I am, as Facebook put it when I changed the default setting, happy to decline the many benefits of the "New Facebook Experience."
If you were concerned about Facebook, wait until you hear about Unvarnished., which just launched in beta, has been described as a website wherein Yelp meets LinkedIn. 
The site with the tag “truth in reputation” allows users to create profiles and rate other users in the hopes of revealing the truth about the individual. However, the social networking site has been severely criticized for having little to no security controls. Specifically, the site only verifies a user’s identity through Facebook to insure that he/she is not a minor and then proves the user with carte blanche to create profiles and rate individuals anonymously. And since the purpose of the “reviews” is to reveal who an individual “really is” the user, who is being rated, is unable to delete and/or vote on negative posts about himself/herself.
Supporters of the site have said that the truth will bear out and that users can have their friends post positive comments that will offset any erroneous or negative comments. The co-founder of the site even insists that it will not turn into a burn book but rather an opportunity for people to see what others really think of them. Time will tell if Unvarnished becomes a useful social networking site or the perfect platform for defamation. Either way, the sites very existence continues to expand the private/public distinction and limits the scope of personal privacy.  Not surprisingly, like Facebook, My Space, Twitter and Yelp it is one more site that may require legal monitoring.
Thursday, 11 March 2010 19:31


Currently in Tallahassee, State Senator Mike Fasano of New Port Richey, who is the chairman of the transportation budget committee, is drafting legislation that may allow your logo to go further than ever before in Florida. Specifically, the legislation would allow corporations to sponsor license plates and place their trademarks on the same.  The proposed legislation is being drafted to generate funds for the state and would use some of the proceeds received to give drivers who purchase the corporate tags a discount on annual registration fees. 
It is rumored that the legislation is being modeled after legislation passed in Texas in 2009 which began by featuring the RE/MAX logo and slogan.  It is also rumored that Disney is interested in being the first to put their trademarks on Florida license plates. Whether the legislation is passed this session, the mere consideration evidences the value of trademarks and the need to adequately protect the same.
Friday, 05 March 2010 19:19


Days after the death of prisoner of conscience Orlando Zapata Tamayo, the breath of the United States Embargo against Cuba is presently before Congress. What may surprise you, however, is that the issue is being raised by Section 211 (a)(2) of the Omnibus Consolidated and Emergency Supplemental Appropriations Act adopted by the U.S. Congress in 1998, which is not about human rights, but rather about trademarks. Specifically, Section 211 is about whom can use trademarks and is a product of the Havana Club controversy. And while the issue has been litigated for years and in several countries, Section 211 is designed to protect trademarks that belonged to businesses whose assets were confiscated by the Cuban government after the communist revolution of 1959 and establishes that no court in the United States may recognize any claim regarding trademarks and commercial names related to properties confiscated by the Cuban government. The change was challenged by the European Union and ultimately criticized by the World Trade Organization when it was first introduced. 
The present debate however, given the political climate may call into question the US Embargo and the purpose of its Intellectual Property carve out and as such promises to be a historic one. To read more click here.
This week Yelp! Inc. the online review site was served with a class action lawsuit in California for Violations of California’s Unfair Competition Statute. The complaint filed in the US District Court for the Central District of California, alleges that that Yelp! manipulates reviews, which have a direct impact on business ratings, and then offers to remove them if the business purchases a monthly advertising subscription. The Plaintiff, Cats and Dogs Corp, provides veterinary services in Long Beach California and claims that it was extorted by Yelp!
Yelp!, a San Francisco based operation which was founded in 2004, recently walked away from Google’s $550 million dollar offer to purchase.  These allegations however strike to the heart of Yelp! Business model which claims to provide “real people and real reviews.”  To date, Yelp's response to the complaint has been a statement denying the allegations.
While Toyota hopes that the Toyota Tundra's Super Bowl actual demonstration advertisement "Killer Heat"will make a lasting impression on you this Sunday, we hope it also reminds you of the binding effect of Plaintiff’s patent counsel’s litigation strategy in patent litigation and other auxiliary proceedings. This is because on January 26, 2010, the United States Federal District Court for the Middle District of Florida granted summary judgmentagainst Solomon Technologies, Inc. and in favor of Toyota Motor Corporation relating to claims of infringement of U.S. Patent No. 5,067,932.
The case is memorable for several reasons. First of all because ever since In re Gabapentin Patent Litigation in 2007 much has been written and theorized about the applicability of summary judgment in patent litigation.  And also because the case stands for the proposition that litigation strategy in other related proceedingsare binding in patent cases even if the claimant retains new counsel. Specifically, what occurred is that after initiating an action for infringement in the Middle District of Florida, which included a request for injunctive relief, the Plaintiff filed a complaint with the Unites States International Trade Commission (ITC). Soon after, both parties agreed to stay the court proceeding until a determination was reached by the ITC. During the ITC procedure the parties stipulated to meaning of certain claims which included the stipulation that “power conversion means” should be considered a “means plus function” limitation. After an extensive investigation, the ITC ruled against the Plaintiff who in turn appealed to the Federal Circuit. The appeal, however, was unsuccessful and the Plaintiff returned to the original litigation to pursue its claim of infringement. However, now represented by new counsel, Plaintiff argued that “power conversion means” was not a “means plus function limitation.” Toyota responded by moving for summary judgment, and the Court concluded that the Plaintiff’s tactic of abandoning the claim construction adopted in the other proceedings was a tactic that “offends the equitable principles underpinning the judicial estoppels doctrine.” In so doing, the Court rejected the Plaintiff’s argument that the Court was not bound by the findings of the ITC and the Federal Circuit, noting that the Plaintiff was “inviting this Court to revisit the same judicial landscape with its new counsel as its guide.”
This finding, while not unexpected, is something to carefully consider, since claim construction may occur early in patent litigation cases and other auxiliary proceedings. It is yet another reason to retain patent counsel and consider litigation strategy with their input, since failure to do so may result in a binding Killer Heat.
Thursday, 31 December 2009 18:55


 As we say farewell to 2009, we must recognize that even in its final hours this year continues to provide vivid examples of the value of intellectual property rights. 

Specifically, this New Year’s Eve, Tavern on the Green will close its doors after 75 years in New York City’s Central Park.  And while many question how this landmark that declared $38 million in gross revenue in 2007, making it the second highest grossing restaurant in the US, now finds itself in bankruptcy, we want you to consider that despite the Baccarat and Waterford Chandeliers, the restaurant’s most valuable asset may be its trademark. 

After the final service at the Tavern this evening, the Bankruptcy Court must decide if this $19 million asset belongs to the City of New York and is therefore outside the proceeding, or if it belongs to the LeRoys personally, also arguably putting it outside of bankruptcy, or if it is owned by the bankruptcy estate and should be liquidated.   To Read More Click Here

As some of you may know, Facebook changed its privacy settings on Wednesday, December 16, 2009. However, the new “easy to use settings wizard” has not be well received. Among one of the issues, is that as a result of the change a user who did not adjust his/her privacy settings has been publishing his/her status updates and photos to the entire internet as of Wednesday. And while Facebook claims that only forty percent of its 220 million users have opted for their old privacy setting while the rest have embraced the change, critics argue that the settings wizard distorts the facts and that many users are not even aware of the true implications of the switch. Many critics have gone on to add that the change is really a deliberate attempt by Facebook to compete with other micro-publishing sites like Twitter who have capitalized on the public aspect of social networking sites.
So it came as no surprise this morning when the Electronic Privacy Information Center, a coalition of privacy groups, asked the Federal Trade Commission (FTC) to investigate Facebook’s recent privacy changes and how the social networking site treats customer data which they claim is in violation of federal consumer protection laws.  The FTC has yet to comment on if and when it will investigate.
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