| Antitrust |
4/17. The California
Court of Appeal issued its opinion
[PDF] in Visionshape
v. Kofax Image Products. Kofax manufactures video
boards used to connect document scanners to personal
computers. Visionshape
and Kofax marketed competing software that was compatible with
Kofax video boards. In September 1997 Kofax released a new
video board that was compatible with its software, but not
Visionshape's. Visionshape filed a complaint against Kofax
alleging (1) unlawful loss leader sales, (2) unlawful sales
below cost, (3) unlawful tying arrangement, (4) intentional
interference with prospective economic advantage, (5)
negligent interference with prospective economic advantage,
and (6) unfair competition. Kofax filed a demurrer that the
complaint failed to state a claim. The trial court sustained
the demurrer, without leave to amend, and entered a judgment
of dismissal. Visionshape brought this appeal. The Court of
Appeal affirmed.
4/13. The Department of
Transportation (DOT) announced that it will not prevent Orbitz, an online
travel agency being developed by five major airlines, from
beginning operations. Nor will it require Orbitz to change its
business strategy at this time. See, DOT release.
Jeff Katz, CEO of Orbitz, said in a prepared
statement that "Orbitz continues moving full-speed
toward its June launch following today's release of a DOT
letter giving Orbitz the green light. After an exhaustive
review of our business plan and corporate documents, the DOT
has clearly confirmed our position that Orbitz is
pro-competitive and fully compliant with the law." The American Antitrust
Institute (AAI), Consumer
Federation of America, and other groups had opposed the
venture. See, AAI
release of April 8. Other groups, including the
Association for Competitive Technology (ACT) and the
Progressive Policy Institute, supported Orbitz's bid for
regulatory approval. See, ACT
release. |
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| Slamming & Cramming |
4/17. The FCC released an
Order
[PDF] imposing a fine against AT&T for slamming --
the authorized switching of consumers' long distance carriers.
The FCC found that AT&T had slammed 11 customers. AT&T
argued that the slamming was unintentional. The FCC fined
AT&T $520,000. See, FCC Order
of Forefeiture and Enforcement Bureau release.
4/17. The FTC reached a consent
agreement with the owners and operators of several pormographic
web sites who made false and deceptive statements regarding
free trial memberships, and then billed credit and debit card
accounts without authorization. The FTC's administrative complaint
states that the defendants promised free trial memberships,
but then "immediately charge consumers' credit or debit
cards for one month's membership fee effective as of the date
that the consumers first provide credit or debit card
information and agree to participate in the free trial
membership offers". Under the terms of the Agreement
Containing Consent Order to Cease and Desist, Voice Media
Inc, and its owners and officers, Ron Levi and Paul Lesser,
agreed not to lie to their customers any more. However, they
were not fined. See also, FTC
release. |
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| Privacy |
| 4/16. The Center for Democracy
and Technology, other groups, and academics, wrote a letter
to Mitch Daniels, Director of the Office of Management and
Budget, urging him to promptly fill the position of Chief
Privacy Counselor at the OMB. |
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| PSINet |
| 4/17. PSINet released
4th quarter results. It stated that "the Company's cash,
cash equivalents, short-term investments and marketable
securities, including the proceeds from the sale of PSINet
Transactions Solutions on April 3, 2001, are not expected to
be sufficient to meet the Company's anticipated cash needs.
... These efforts are likely to involve reorganization under
the federal bankruptcy code." See, PSINet
release. |
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| New Documents |
Bush:
speech
re free trade and fast track, 4/17 (HTML, WH).
USCA:
opinion
in New Kayak Pool v. Island Pools re trademark infringement,
4/17 (HTML, USCA).
USCA:
opinion
in Medtronic v. ACS, a case regarding arbitration clauses and
patent infringement claims, 4/17 (TXT, USCA).
CCA:
opinion
in Visionshape v. Kofax Image Products re tying, 4/17 (PDF,
CCA).
CDT: letter
to OMB Director Daniels re privacy, 4/16 (HTML, CDT).
FCC: order
imposing fine for slamming, 4/17 (PDF, FCC).
FTC:
complaint
and Agreement
Containing Consent Order in web site cramming matter, 4/17
(HTML, FTC). |
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| Trade |
4/17. President Bush gave a speech
to the Organization of American
States in Washington DC in which he advocated free
trade. "Open trade fuels the engines of economic
growth that creates new jobs and new income. It applies the
power of markets to the needs of the poor. It spurs the
process of economic and legal reform. It helps dismantle
protectionist bureaucracies that stifle incentive and invite
corruption. And open trade reenforces the habits of liberty
that sustain democracy over the long term. For all these
reasons, my administration is committed to pursuing open trade
at every opportunity. We'll pursue open trade bilaterally,
with individual nations such as Chile and Singapore and
Jordan. We'll pursue open trade globally through a new round
of multilateral negotiations. We want to open global markets
so that our farmers and ranchers and workers and service
providers and high-tech entrepreneurs can enjoy the benefits
of a more integrated world. And, of course, we'll pursue these
goals throughout our hemisphere through the free trade area of
the Americas."
President Bush also addressed fast track trade negotiating
authority. "Since open trade is one of my top
priorities for our hemisphere, gaining U.S. trade promotion
authority is one of my top priorities in Congress. I made this
clear in my first address to the Congress. We have reinforced
this message in meetings my Cabinet officers and I have had
with over 100 members of Congress. Trade promotion authority
gives our trading partners confidence that they can rely on
the deals that they negotiate. It allows us to seize
opportunities to expand the circle of trade and prosperity.
We're now actively working with Congress on a strategy for
passing legislation, granting the trade promotion authority.
We'll intensify this effort when I return from Quebec, and I'm
confident we'll succeed." |
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| Copyright |
| 4/13. Twelve movie and entertainment companies settled their
copyright infringement action against RecordTV and
David Simon. The twelve companies filed a complaint
in U.S. District Court (CDCal)
on June 15, 2000, against RecordTV
and its founder, David Simon, alleging copyright infringement,
trademark infringement, unfair competition in violation of the
Lanham Act, violation of the Cable Communications Policy Act,
unfair competition under California law, and common law unfair
competition. RecordTV operated a web site that made
unauthorized copies of Plaintiffs' copyrighted TV programs and
movies from a Los Angeles area cable TV signal, and then
streamed them over the Internet. The District Court entered an
injunction against Simon enjoining him from streaming
plaintiffs' copyrighted works over the Internet and using
plaintiffs' trademarks to advertise his website. Simon must
also pay plaintiffs $50,000 for legal fees. However,
Plaintiffs did not recover any damages. Jack Valenti, P/CEO of
the MPAA,
stated that "This settlement should make clear that one
cannot create a website that does not respect Copyright
Law." See, MPAA
release and RecordTV
release. |
|
|
| Trademark |
| 4/17. The U.S.
Court of Appeals (2ndCir) issued its opinion
in New
Kayak Pool v. Island Pools, a trademark
infringement case. Both New Kayak Pool and Island Pools make
above ground swimming pools and accessories. Both market their
products via mail order catalogues. Kayak has registered the
trademark "Kayak Pools." Island published a
catalogue in 1999 which stated "KayakŪ Pool Owners: We
Carry a Complete Line of Parts and Supplies for Your
Pool." Kayak filed a complaint in U.S. District Court (WDNY)
alleging trademark infringement and unfair competition under
the Lanham Act against Island, and seeking injunctive relief.
The District Court denied Kayak's request for injunctive
relief. This appeal followed. The Appeals court vacated and
remanded, with instructions to apply the multi-factor
balancing test articulated in Polaroid v. Polarad, 287
F.2d 492 (2d Cir. 1961). |
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|
| Patent Cases |
4/17. The U.S.
Court of Appeals (3rdCir) issued its opinion
in Medtronic
AVE v. Advanced Cardiovascular Systems, a case
regarding arbitration clauses and patent infringement
claims. Medtronic filed a complaint in U.S. District Court
(DDel)
against Advanced Cardiovascular Systems (ACS) alleging patent
infringement. ACS sought a stay of the patent infringement
litigation pending arbitration so that it could enforce the
arbitration clauses in two agreements. The District Court
denied the motion to stay, and the Appeals Court affirmed.
4/17. The U.S.
Court of Appeals (FedCir) issued its opinion in Harry
Schoell v. Regal Marine, a patent
infringement case. Schoell sued Regal Marine alleging
infringement of U.S. Patent No. 5,456,202, which relates to
boat hulls. The Appeals Court affirmed the District Court's
judgment that Regal Marine had not infringed plaintiff's
patent, either literally, or under the doctrine of
equivalents. |
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| Appointments |
4/17. President Bush will nominate Clark
Randt to be U.S. Ambassador to the People's Republic
of China. Randt is currently a partner in the Hong Kong office
of the law firm of Shearman
& Sterling. He is partner in the firm's Mergers and
Acquisitions and Corporate Finance Groups. He specializes in
direct foreign investment, capital markets and financing
transactions in the Asia-Pacific region. He also heads the
firm's China practice. He speaks Chinese Mandarin. He also
went to college with George Bush, where the two were
fraternity brothers.
4/17. President Bush announced his intent to nominate Michael
Garcia to be Assistant Secretary of Commerce for Export
Enforcement. Garcia has been an Assistant U.S. Attorney
for the Southern District of New York since 1992. See, release. |
|
|
| People |
4/16. Daniel Dorosin joined the Palo Alto office of
the law firm of Fenwick
& West as a partner its Corporate Group. He will focus
on advising venture-backed start-up companies. See, release.
4/10. Allen
Sussman joined the Los Angeles office of the law firm
of Morrison & Foerster
as a partner. He has a public corporate securities practice
focused upon middle market technology and digital media
companies. He previously worked at the law firm of Brobeck Phleger & Harrison.
See, release. |
|
|
| Today |
The USPTO
will hold an examination for persons seeking registration
before the USPTO as patent attorneys and agents. See, USPTO
release.
Deadline to file reply comments with the The NTIA
regarding its Notice
of Proposed Rulemaking (NPRM) regarding compensating
incumbent federal agency users in the 1755-1850 MHz band that
may be required to modify their systems as a result of
spectrum reallocation for 3G wireless uses. The NTIA
released the NPRM on Jan. 17. See, TLJ
story.
Deadline to submit comments to the Commodities Futures Trades
Commission regarding its proposed privacy rules
pursuant to the Gramm Leach Bliley Act. See, notice
in the Federal Register, March 19, 2001, Vol. 66, No. 53,
Pages 15549 - 15576. See also, CFTC
release.
9:00 AM. The Department of Commerce's Bureau of Export Administration's
Information Systems Technical Advisory Committee (ISTAC)
will hold the first of two days of meetings. The ISTAC advises
the Office of the Assistant Secretary for Export
Administration on technical questions that affect the level of
export controls applicable to information systems equipment
and technology. See, notice
in Federal Register, April 3, 2001, Vol. 66, No. 64, at Page
17683. Location: Hoover Building, Room 3884, 14th Street
between Pennsylvania Ave. & Constitution Ave., NW.,
Washington DC.
12:00 NOON. The Federal
Communications Bar Association's Legislative Committee
will host a brown bag lunch. The speakers will be Paul
Jackson (FCC Office of Legislative and Intergovernmental
Affairs) and Joe Gattuso (NTIA Congressional Affairs
Office). Location: Holland & Knight, 2099 Pennsylvania
Avenue, Suite 100, Washington DC. RSVP to Marvin Rosenberg.
12:00 NOON. Deadline to submit comments to the Federal Election Commission
regarding its draft advisory opinion regarding Morgan Stanley Dean Witter's
plans to use a web site to authorize payroll deductions for
political actions committees. MSDW submitted a Request for
Advisory Opinion [PDF] requesting an opinion that it is
permissible, pursuant to the E-SIGN Act, to use electronic
signatures to authorize payroll deductions for the MSDW
political action committee. The draft advisory opinion permits
the activity, but does not rely upon the E-SIGN Act.
12:15 PM. The Federal
Communications Bar Association's Young Lawyer's Committee
will hold a brown bag lunch. Jonathan Smollen, Legal
Advisor to FTC Commissioner Thomas Leary, will speak on
"Developments in Privacy Law." Location: Wiley Rein
& Fielding, 1750 K Street, NW, 5 E Conference Center. |
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