August 2011

The United States may still be leading in cloud computing sales, but China’s appetite for cloud computing services may be growing faster than the United States. Gartner found that 55 percent of Chinese respondents are willing to spend 10 percent of their total IT budget on cloud computing compared to 42 percent in Europe and 49

Welcome to another edition of AlphaWatch. In addition to the prominent use of capital letter G on the front of these energy drink cans, the last line on them reads:

"IT’S GAZZU!! HEY, GIMME A G."

 I thought that Gatorade’s "What is G?" question already had been answered here?

–Catlan McCurdy, Attorney

In April of this year, shoe designer, Christian Louboutin, turned heads in the fashion and trademark crowds when the brand sued Yves Saint Laurent (YSL) for infringing Louboutin’s signature look: red-soled shoes. Duets covered it here. Both interested lawyers and fashion aficionados have been awaiting some form of decision, and our

—David A. Gauntlett, Gauntlett & Associates

Companies looking for extra money in these tough economic times may have an answer from the past. The vast majority of insurer denial letters for intellectual property lawsuits lack merit. Therefore, companies who have litigated intellectual property cases and expended significant monies in defense and settlement may be overlooking ready sources of cash through pursuit of coverage claims.

Five Reasons Why Insurer Denials of Intellectual Property Claims May Not Be Well Taken

First, insurers rarely consider all the potential bases for coverage factually implicated by the underlying lawsuits they address. The distinctions necessary to identify pertinent policy provisions may not be possessed by the personnel charged with conducting that analysis.

Second, insurer’s distinctly narrow fact constructions of allegations leads to consistent under-assessment of potential coverage for fact-based claims under “offense” based coverage for “categories of wrongdoing” which often proceed under a bewildering variety of labeled causes of action.

Third, the insurer’s ability to appreciate a potential for coverage requires an ongoing and “neutral assessment” of developments in coverage case law. Mechanisms to communicate this developing law to the claims handling personnel charged with evaluating coverage for such claims are often ineffective and inconsistent with the insurer’s institutional perspective on how coverage should be evaluated.

Fourth, further, when case law, favorable to policyholders arises, it is not disseminated with appropriate instruction to caution claims to personnel to its significance.

Fifth, claims personnel may be the victim of a collective “willful blindness” to case developments that are antithetical to coverage perspectives developed while protecting insurer interests.

Intellectual Property Lawsuits Are Expensive

It is not uncommon, pursuant to AIPLA surveys for companies to expend $500,000 to $1,000,000 for defense of trademark and copyright infringement lawsuits. More than five times that sum may be expended for patent infringement lawsuits. Where insurer denial letters assert erroneous grounds for denial, a distinct opportunity for pursuit of coverage arises.

Ascertaining Whether Buried Treasure Exists Requires a Five-Part Analysis

These issues include:

1.         Did the company give notice to the insurers on risk as of the date of the first alleged “wrongful act” as well as all subsequent carriers and those at higher levels who may have a duty to pay any settlement reached.

2.         If not, was the insurer on constructive notice of the lawsuit and/or settlement.

3.         Has the statute of limitations run on their complaint.

4.         Are facts beyond the complaint available to clarify potential coverage where the law applicable permits reference to such evidence.

5.         Were the insurer or insurers notified of any settlement prior to its consummation where the insurer agreed to defend under a reservation of rights. Continue Reading “Buried Treasure” – Securing Reimbursement for Monies Expended in Past Intellectual Property Lawsuits

–Susan Perera, Attorney

Most false advertising claims originate from an advertising statement.  (For example, see Dan’s post last week on Sam Adam’s bottle cap advertising).  However, a recent suit alleges false advertising  based on what wasn’t said.

Yesterday, Terry Baynes at Thompson Reuters reported on an attorney who has filed suit against Chipotle for its

Recovering from a nasty bout of walking pneumonia over the last couple of days, I probably spent more time (at least, mindless time) in front of the television than the last several months combined.

One thing that caught my eye during a brief and surprisingly mindful moment while I suffered was another brand to recently jump on the brandverb

It’s not every day that a fine news publication like The Onion dips its toes into trademark pool. Given this, I was pleasantly surprised to see this parody about troubling competition to Yellowstone National Park.   Granted, this article came out a couple months ago, but I still think its poignant.

Although plainly presented for comedic purposes

Awareness isn’t just about making a name for yourself. It’s about utilizing your network and being aware of others’ strengths in a way that mutually benefits both parties.

As humans, we can’t know everything. (That may be shocking!) That’s why we have friends—referrals—to ask for real-world advice.

With a straight face, I can tell you