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  • Jan 27th, 2011 @ 6:34pm

    Maybe not so hopeless a case...

    It is true that in many cases lawyers can assert a defense of privilege or immunity against civil claims brought by a non-client (on the theory that they owe no duty to non-client), there are many exceptions. For example, lawyers can be sued for common law fraud and under the federal civil RICO statute in certain cases. The duty not to defraud others, including litigation opponents, is independent of any attorney-client relationship. Lawyers can also be sued for malicious prosecution and malicious defense in certain states (knowing and intentional filing of a groundless lawsuit or defense).
    In many states it isn't necessary to prove actual damages in order to recover statutory damages under their unfair trade practice statutes. In fact the claimant need not be "in privity" with the lawyer (i.e., a client) or even a consumer, so long as the statute has been held to apply to lawyers, and the lawyer committed an unfair and deceptive act or practice. Attempted deception is such an act, and the issue of intent is one for the jury.
    A good reference work is Mallen & Smith's Legal Malpractice, even if it is heavily biased in favor of lawyers and their malpractice carriers (not surprising, given that the authors are defense counsel for such carriers). Another good source is the monthly Current Reports supplement to the ABA/BNA Lawyer's Manual on Professional Conduct.
    It will be interesting to see how this comes out.

  • Jan 18th, 2011 @ 4:44pm

    Maybe "Massive" Legal Action is required...

    Nothing inhibits small innovators (and even larger ones),both here and around the world, more than lurking patents of dubious validity.

    Perhaps it is time for a class action against USPTO, or if that isn't possible, a steady stream of lawsuits challenging the most egregious patents that showcase the PTO's abysmal disregard of prior art and obviousness.

    Another approach might be to routinize the use the threat of interference litigation as a bargaining chip for negotiating with the holders of annoying patents.

    An interesting source of plaintiffs and funding might be developing nations, who may be the worst victims of what is, in effect, IP colonialism.

  • Jan 6th, 2011 @ 4:04pm

    IHOP and Dilution

    Did the commercial IHOP assert a claim based on dilution? As I recall, if the trademark is a household name, others cannot use it, regardless of marketplace confusion, because such use would dilute the value of the trademark. Another consideration is trademark abandonment, a la Kleenex and Xerox. As scary as the suit sounds, it might have been seen as necessary posturing to protect the mark in the future.

    This may have been one of those very rare case in which corp. counsel acted properly. As for me, I'm a Denny's lover.