Reminder: The Lanham Act is a Powerful Weapon Against False Advertising

Stop what you're doing and go read the Lanham Act!  I'm kidding, but only slightly.  Let's get right to it:  Lots of folks have no idea what the Lanham Act does.  If they know it at all, they say, "Oh, it covers trademark infringement."  But that's not even half of the story.  The Lanham Act is an incredibly powerful weapon.  It goes way beyond protecting trademarks.  It also protects against false advertising.  Let's focus on that: The false advertising provisions of the Lanham Act prohibit two types of false advertising:  (1) advertising that is literally false and (2) advertising that…

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10 Pieces of Advice for Young Lawyers from Jonathan Pollard

Ten piece of advice for young lawyers, in no particular order: Don't Send Emails When You're Angry:  It happens to the best of us.  You're in the middle of intense litigation.  You've been working on the case for a year.  The case itself is ugly and contentious.  Say theft of trade secrets.  Both sides are locked into their positions.  To make matters worse, opposing counsel is a complete jerk.  You know the type:  He signs his emails with the phrase "govern yourself accordingly", which I believe is supposed to be vaguely intimidating.   He talks down to you.  He is…

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In-N-Out Burger Sues In-N-Out Cleaners for Trademark Infringement

Just days ago, the famous California burger chain In-N-Out Burger filed a lawsuit against a Witchita, Kansas dry cleaner called In-N-Out Cleaners alleging trademark infringement.  A picture is worth a thousand words: Dozens of commentators on LinkedIn and elsewhere have deemed this a slam dunk case of trademark infringement.  But I say not so fast.  In it's complaint, In-N-Out Burger says it received emails and messages from the consuming public saying that - from afar - the Defendant's logo looked an awful lot like the Plaintiff's logo.  Indeed, some folks alerted In-N-Out Burger to the fact that the Kansas-based dry…

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MDFL Denies Injunction in Call Center Non-Compete & Trade Secret Case

A call center and telecommunications company recently failed in its bid for a preliminary injunction in a non-compete case pending in the United States Court for the Middle District of Florida.  The Company, Sarasota-based Viable Resources (“the Company”) is an Avaya business partner or reseller.  Its principal line of business is reselling Avaya products and services.  In 2006, the Company hired Karen Belyea (“KB”) as an entry-level computer telephone integration developer.  In that capacity, she signed an Employment Agreement (“the Agreement”).  In relevant part, the Agreement contained various confidentiality provisions and a 2-year non-compete that prohibited her from working in…

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Eleventh Circuit: Delay of 5 Months Means No Irreparable Harm

In Florida, state and even some federal courts hand out injunctions like candy.  But the law is not supposed to work that way.  The United States Court of Appeals for the Eleventh Circuit has repeatedly held that that a preliminary injunction is an extraordinary and drastic remedy.  See Canal Authority, 489 F.2d at 572.  The movant bears the burden of persuasion as to each element of the preliminary injunction test.   Preliminary Injunction Standard A district court may grant injunctive relief only if the moving party shows that: (1) it has a substantial likelihood of success on the merits; (2) irreparable…

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Coke Still Fighting to Trademark “Zero”

Let's recap:  For the past 13 years, Coca-Cola Co. has been attempting to capture the trademark for Zero.  As in Coke Zero.  Back in May of this year, the Trademark Trial and Appeal Board ruled in Coke's favor and allowed the company to register numerous trademarks for its Zero product line.  Coke's rivals had suggested - quite logically - that zero was a generic term for zero calories beverages and shouldn't be subject to trademark.  The Board disagreed and held that Zero was basically tied up with Coke because Coke had spent billions of dollars promoting the brand and that…

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Object to Jury Instructions. No, Seriously. OBJECT!

Lawyers have a tendency to be contentious jerks who love objecting to everything.  Take your average lawyer and he or she will make a litany of bogus objections at depositions.  Just the other day, one of my associates was taking a deposition and some mediocre lawyer from some mediocre big firm was objecting that we could not use certain documents at the deposition because we hadn't shown him those documents in advance.  There is, of course, no rule that says this.  This objection, of course, was nonsense.  But that's par for the course among Florida state court practitioners.  The point…

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Signing a Non-Disclosure Agreement? Prepare for Trade Secret Litigation

Any time you sign a non-disclosure agreement, prepare to wind up in trade secret litigation.  Let me explain:  I focus on non-compete and trade secret litigation.  I have been involved in hundreds of disputes.  I see these fact patterns all the time: Non-Disclosure Agreements & the Failed Joint Venture Company A and Company B are in talks for a merger, acquisition or joint venture.  They sign a non-disclosure.  Company A then gives Company B  some information.  Company A is really pushing the merger, acquisition or joint venture.  Company A needs Company B.  Unfortunately, Company B is not impressed by what…

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Fighting for Jurisdiction is Not Forum Shopping

A law firm in North Florida has taken to calling me a forum shopper and accusing me of abusing the judicial process in official court pleadings.  Their argument:  After one of my client's filed for Chapter 11 bankruptcy reorganization, we removed certain pending state court litigation from Florida state court to the United States District Court for the Northern District of Florida.  We did this pursuant to bankruptcy rules.  We are presently in this middle of a removal/remand fight.  I contend that there are valid bases for the NDFL to retain jurisdiction. Rather than arguing for the case to be…

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Protecting Your Interests in Purchase/Sale of a Business Transactions

Given the nature of my practice, I routinely encounter sale of a business non-compete issues. I handle these on both sides: On one hand, you have buyers who want to pursue action against the seller for allegedly violating the non-compete. On the other hand, you have sellers trying to get back into the market by any means necessary. Having seen dozens of these situations, I’m shocked at how sloppy these transactions are (on both sides). In these transactions, I generally see purchase prices of anywhere from $500,000 to $20 million.   The seller is invariably a small, privately held and often…

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