• Posts by Brian Wheeler
    Posts by Brian Wheeler
    Partner

    Brian Wheeler leads the firm’s Intellectual Property and Data Security & Privacy team. His practice focuses on intellectual property, data security and privacy, and high-stakes complex commercial litigation and white collar ...

On Friday, May 29, 2020, the California Department of Public Health approved Los Angeles County’s variance request to move further into Stage Two of the California Resiliency Roadmap, allowing Los Angeles County restaurants to provide in-person dining service and hair salons and barbershops to reopen.

Better Luck Next Time—Supreme Court Unanimously Rejects Defense Preclusion in Lucky Brand Trademark Row

On May 14, 2020, the Supreme Court unanimously ruled in favor of denim company Lucky Brand Dungarees, Inc. (“Lucky Brand”) in its decades-long trademark dispute with Marcel Fashions Group, Inc. (“Marcel”), holding that Lucky Brand was not precluded from asserting an unlitigated defense from a prior lawsuit with Marcel.  In Lucky Brand Dungarees, Inc., et al. v. Marcel Fashions Group, Inc., 590 U.S. ___ (2020), the Supreme Court rejected the Second Circuit’s application of the so-called “defense preclusion” doctrine and confirmed that any preclusion of a litigant’s defenses must comply with traditional res judicata principles.

Orange County Becomes Latest to Secure Variance and Approval from State to Accelerate Reopening Local Businesses Deeper Into Stage Two, Allowing Dine-In Restaurants and In-Store Retail to Reopen; County Officials Issue New Order and Strong Recommendations

On Saturday, May 23, Orange County obtained approval from the State for its variance request to move further into Stage Two of the California Resiliency Roadmap, allowing Orange County restaurants to reopen for dine-in service and previously closed destination retailers to welcome customers back for in-store shopping, provided the businesses follow County and State guidelines for reopening, as explained below.

Categories: Reopening

On April 23, 2020, the United States Supreme Court ruled that a trademark holder need not prove that the infringement of its trademark was willful in order to recover an award of the infringer’s profits.  The Court’s decision in Romag Fasteners, Inc. v. Fossil, Inc. resolves a longstanding circuit split and may make it easier for trademark holders in many jurisdictions, including the Ninth Circuit, to recover damages in trademark infringement cases. 

U.S. Supreme Court Rules States Cannot Be Sued for Copyright Infringement

On March 23, 2020, the Supreme Court unanimously held in Allen v. Cooper that, absent consent, states cannot be sued for copyright infringement and are shielded from such actions under the doctrine of sovereign immunity.  The Court found that the Copyright Remedy Clarification Act of 1990 (CRCA), which expressly provided that states “shall not be immune” under any doctrine of sovereign immunity for copyright infringement, was an unconstitutional abrogation of state sovereign immunity.  However, the Court also noted that its decision would “not prevent Congress from passing a valid copyright abrogation law in the future” that is more tailored to pass constitutional muster.

Categories: Business, Litigation
Data Privacy in California:  Enforcement and Litigation Under The California Consumer Privacy Act

The California Consumer Privacy Act (CCPA) went into effect on January 1, 2020.  Is your business prepared and in compliance with the new law? 

On December 11, 2019, the Supreme Court unanimously ruled in Peter v. NantKwest, Inc. that the United States Patent and Trademark Office (USPTO) cannot recover the salaries of its attorneys or paralegals as “expenses” in district court cases filed under 35 U.S.C. § 145.

Categories: Business
Infringers Profits and Willfulness:  Supreme Court Set to Resolve Circuit Split Regarding Trademark Damages

October marks the opening of the new Supreme Court 2019-2020 term and there is one case in particular that trademark practitioners are anxiously awaiting for the Court to weigh in on to resolve a longstanding circuit split and definitively answer the question whether willful infringement is a prerequisite for an award of an infringer’s profits in an action for trademark infringement.

Categories: Business, Litigation
Words Matter in Design Patents:  Federal Circuit Rules that Claim Language Can Limit the Scope of a Design Patent

On September 12, 2019, the United States Court of Appeals for the Federal Circuit held for the first time that “claim language can limit the scope of a design patent where the claim language supplies the only instance of an article of manufacture that appears nowhere in the figures.”  The Federal Circuit’s order affirming the dismissal of a complaint for design patent infringement based on a narrowed construction of the patent-in-suit makes clear that words matter in a design patent.

Categories: Business
U.S. v. Connolly and the Importance of Independent Counsel When Cooperating with Government Investigations

In May of this year, Chief Judge Colleen McMahon in the United States District Court for Southern District of New York issued a highly anticipated opinion and order in U.S. v. Connolly, finding that the government improperly “outsourced” its criminal investigation to Deutsche Bank and its outside counsel. The decision could significantly impact how companies and outside counsel cooperate with government and enforcement investigations in the future.  While Judge McMahon’s opinion was primarily an admonition to the government, companies facing investigations need to be aware of potential conflicts that could arise when interviewing employees regarding potential wrongdoing. 

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