An Introduction to Intellectual Property

Note to Students:

The following is a list of cases referred to during class discussions (the shadow cases), but not assigned as course readings. It is provided solely to assist with your review for the final exam. I have organized the cases according to the arrangement of the syllabus.

The cases summaries should be reviewed in conjunction with your own class notes, and should be treated with the same skepticism as headnotes. Case summaries are never a substitute for reading full cases. Although every effort has been made to include all supplementary cases discussed in class, some items may have been inadvertently omitted. You are encouraged to use this list as a starting point for your study.

I. Origins and Rationale for Intellectual Property Laws:

National Basketball Association v. Motorola, 105 F.3d 841 (2nd Cir. 1997) ("Sports Pager" Case). Facts: D Motorola manufactures and markets a paging device which supplies scores and statistics, updated every 2 - 3 minutes, on sporting events in progress. Information is provided by reporters who watch the games on television or listen to them on the radio, and enter information into a personal computer. The information is then transmitted to pagers via satellite. Held: Ds did not unlawfully misappropriate because they reproduced only the facts related in the broadcasts, not the expression or description of the game that constitutes the broadcast).

Ticketmaster v. Microsoft, U.S. Dist. LEXIS 97-3055, settled 1999 ("Seattle Sidewalks Case"). Facts: Microsoft & Ticketmaster unsuccessfully negotiate contract for creating internet link. Microsoft established Seattle Sidewalks website with unauthorized internal link to ticket-selling web page of Ticketmaster. Ticketmaster brought suit, claiming, inter alia, misappropriation and © infringement. Injury: by-passing home page may have caused potential loss of advertising revenue. Settled: Microsoft agreed to make no further deep-links.

Trade Secrets

II. Trade Secrets:

Biblical Archeology Society v. Qimron, 1993 U.S. Dist. LEXIS 1857 (E.D. Penn 1993) (Facts: p is a non-profit organization publishing scholarly journals related to biblical studies. D professor, an Israeli citizen, worked for many decades preparing a portion of the Dead Sea Scrolls for publication. During the course of his work, he distributed copies to other scholars. p published a book containing a facsimile copy of the Dead Sea Scrolls, in an attempt to make them more available to the scholarly community and the public. The section of the Dead Sea Scrolls worked on by the D amounted to only a single page of the p's two-volume book. Issue: whether an ancient work later reconstructed is an original work of authorship subject to copyright protection under U.S. law).

Elm City Cheese, 251 Conn. 59 (1999) Nearly century-old company makes grated parmesan cheese from out-dated milk. D, a friend of the family since age 7, becomes an accountant and manager for the firm. Based upon the knowledge accrued as a manager (there are a limited number of buyers in a niche market), D opens own competing cheese company. Company has not sought to protect trade secrets; no covenant not to compete. Held: no need for covenant not to compete nor protection of trade secrets because of unique, long-standing relationship between parties as Company might assume loyalty. Remedy: $300,000 punitive damages plus injunctive relief of 3 year bar on competing in same market.

Hill v. Gateway 2000, 105 F.3d 1147 (7th Cir., 1997) Hill purchases Gateway Computer. Finds himself bound by a shrinkwrap contract waiving his right to sue, and requiring binding arbitration. As in ProCD, the 7th Cir. upheld shrink wrap contracts as binding, following ProCD. Nevertheless, finds binding arbitration clause may cause difficulties because of inequitable costs of arbitration process.

Trademark

III. Trademark: Distinctiveness & Types of Marks:

Labrador Software v. Lycos, LEXIS 98-12253 (1999) Facts: p uses symbol of labrador, also marks labrador, labrador-retriever, e-retriever to market internet search engine. D used used image of a black dog for its search engine, also showing other internet companies use retrieve and similar dog marks. Held: Finds dog (retriever) descriptive, rather than suggestive. Labrador is unable to demonstrate secondary meaning.

Anti-Monopoly v. General Mills Fun Group, 684 F2d 1316 (9th Cir. 1982) found Monopoly was name of a genus of board games under the primary significance test from Kellog. Determined by motivation survey: did consumers want only game called monopoly no matter who manufactured or only Parker Bros. Monopoly. Held: Monopoly has become generic.

Mohegan Tribe of Indians of Connecticut v. Mohegan Tribe & Nation Facts: Mohegan is a generic term, meaning wolf in Algonquin language, and a number of groups use this name. p owns and operates highly lucrative casino enterprises; D comprised of Mohegans by ancestry, engages in arts & crafts. No strong likelihood of confusion because ordinary person aware of different activities; no showing of harm. p claims prior use in commerce because Mohegan name was granted through federal recognition and incorporation prior to D achieving federal recognition, but this ignores prior use for 300 years--p has no claim to be first entrant. Need of D as well to use name–otherwise loss of pride and dignity in their heritage. Held: p’s request for injunctive relief denied.

In re Jacques Bernier, 894 F.2d 389 (1990) PTO denied registration for Rodeo Drive Perfume because Rodeo Drive is known as a center for fancy boutiques.

Haagen-Dazs v. Frusen Gladje, 493 F. Supp. 73 (SDNY, 1980) Court rejected infringement claim of geographically suggestive ersatz Scandinavian theme.

Forschner Group v. Arrow Trading, 30 F.3d 348 (2d Cir. 1994) ("Swiss Army Knife" case. Facts: p has manufactured in Switzerland knives for Swiss Army since 1892, which became popular with Americans after WWII. D imports knives embossed Swiss Army Knife, manufactured in China. Swiss Army Knife is not a registered trademark. p claims D’s knife is geographically misdescriptive. Held: Swiss Army Knife refers to a type of knife, not geographical place.

E. & J. Gallo Winery v. Gallo Cattle Co., 955 F.2d 1327 (9th Cir. 1992) (Facts: Winery owned by brothers, Ernest and Julio Gallo, inherited from their parents. Brother Joseph, a minor at the time of the parents' death was not made a partner in the Winery. After managing the Gallo winery, he purchased his own vineyard and dairy. He assured the ps that he would not use the name "Gallo" as a trademark. He later began selling wine under the "Joseph Gallo" trade name and cheese under the "Gallo Cattle Company" trade name. He initially made retail cheese sales to commercial purchasers, and subsequently distributed consumer- sized packages under the "Joseph Gallo" trade name. ps sued for trademark infringement and dilution. District court granted summary judgment for ps and permanent injunction against D, prohibiting use of the Gallo name on retail cheese packages and in advertising. D appealed. Held: 1) Re injunction - affirmed: Although there is an established judicial reluctance to enjoin use of a personal name, such injunction is proper so long as it takes into account this reluctance and is "carefully tailored to balance the interest in using one's name against the interest in avoiding public confusion." 2) Re summary judgement on infringement and dilution claims - affirmed: a) more robust protection is warranted for "strong," well- established marks such as the p's; b) wine and cheese are "complementary products," thus heightening the potential for consumer confusion; c) the shared use of GALLO as a dominant element in both marks demonstrates their substantial similarity; d) consumer survey showed actual consumer confusion about the source of the D's products; e) the fact that both products are sold in the same markets supports the court's finding of likelihood of confusion; f) when consumers buy less expensive products, such as wine and cheese, they rely more on brand names to assist in their purchase. Thus, the brand names in such situations require greater protection. g) Although intent to deceive is not a requisite for finding infringement, an individual such as the D, who knowingly adopts a trademark similar to another's is presumed capable of creating consumer confusion.)

In Re Dr. Pepper , 836 F.2d 508 (1987) Facts: Appellant Dr. Pepper Co. filed application with PTO to register PEPPER MAN as a service mark in a promotional contest. It appeals the PTO's decision not to register the mark. Held: Affirmed. The rendering of a service which is routine in connection with the sale of one's own goods is not a registrable service, whether denominated by the same or a different name from the trademark for its product.

Hotmail v. Van Money Pie, Inc., 1998 U.S. Dist. LEXIS 10729 (N.D. Cal. 1998) (Facts: p Hotmail provides free Internet e-mail addresses. Every e-mail message received by a Hotmail subscriber automatically displays a header depicting Hotmail's domain name and signature mark. D sent unsolicited, bulk e-mails or "Spam" advertising pornography, "get rich schemes," etc. which included Hotmail's domain name/mark. D also obtained Hotmail accounts for purpose of "spamming" operations. Held: preliminary injunction granted against D ; p 's mark is distinctive, has been advertised and used extensively, and has established considerable consumer recognition. The use of identical marks by D in e-mail to thousands of e-mail users threatens to dilute the distinctiveness of p 's trademark and harm p 's business reputation.

Dallas Cowboy Cheerleaders v. Pussycat Theaters, 467 F. Supp. 366 (S.D. N.Y. 1979) (Facts: p manages professional activities and promotes the publicity of the Dallas Cowboy Cheerleaders and licenses their name and distinctive uniform. D produced a pornographic film portraying a character intended to portray a Dallas Cowboy cheerleader, and appearing in a very similar uniform. Held: motion for preliminary injunction against D granted; D 's film and its advertising violate Section 43(a) of the Lanham Act; under the New York Anti-dilution Law. D has willfully misappropriated p 's trade names and trademarks and service marks will dilute the p 's cultivated goodwill and reputation. The specific elements of the uniform's design, color and ornamentation are distinctive and arbitrary, and thus susceptible of becoming a valid trademark and service mark and the evidence shows that the uniform has acquired a secondary meaning associated with the Dallas Cowboys Cheerleaders.

Qualitex Co. V. Jacobson Products, 514 U.S. 159 (1995) Lanham Trademark Act of 1946 (15 USCS 1051-1127) held to permit (Facts: p registered a trademark for a special green-gold color used on press pads sold to dry cleaning firms for use on dry cleaning presses. D , a rival of p began selling press pads of a similar green-gold color. Held: Lanham Act permits the use of a color alone as a trademark, provided the color meets the basic legal requirements of a trademark, e.g. non-functionality, distinctiveness, identification of source.)

Nutrasweet Co. v. Stadt Co., 917 F.2d 1024 (1990) ("Nutrasweet" Case) (Facts: p , Nutrasweet Co., sells artificial sweetener, "Equal" in single-serving blue packets. p initially used white packets, but these resembled the packets used by competitors to sell sugar; thus, it switched to blue packets. D sells artificial sweetener "Sweet One" in similar blue packets, but not the same shade of blue. Held: p 's request for preliminary injunction denied; Color may be protected as a trademark if it is used in connection with some symbol, design or logo. p cannot maintain an action for trade-dress infringement of a color per se which does not include any logos, designs or other markings.

In Re Owens-Corning Fiberglass, 774 F.2d 1116 (1985) (Facts: Appellant, Owens-Corning Fiberglass appeals the PTO's denial of registration of the color "pink" as a trademark for fibrous glass residential insulation. Held: PTO's denial of appellant's trademark application reverse. Appellant's use of the color "pink" has no utilitarian purpose, does not deprive competitors of any reasonable right or competitive need, and is not barred from registration on the basis of functionality. It serves the classical trademark function of indicating the origin of the goods, and thus protects the public.

Nike v. "Just Did It" Enterprises, 6 F.3d 1225 (1993) (Facts: p uses the name "NIKE" and/or a "swoosh" design as trademarks as well as the slogan "Just Do It" on its merchandise. Sales of its items in retail stores have generated revenues exceeding 10 billion dollars and have afforded the p company widespread public recognition. D marketed and sold by mail order t-shirts and sweatshirts designed with the "swoosh" design and the word "MIKE," but lost money on the project. p sued for trademark infringement; D claimed parody defense. District court granted summary judgment for p ; D appealed. Held: Reversed. Although p has a strong trademark, in danger of dilution by D , whether customers would confuse MIKE and the "swoosh" design as affiliated with NIKE is a question of fact to be resolved by a jury.

Major League Baseball Properties, Inc. v. Sed Non Olet Denarius, Ltd., 859 F. Supp. 80 (1994) (the "Brooklyn Dodgers Restaurant" Case) (Judgement and opinion reported a 817 F. Supp. 1103 (S.D.N.Y. 1993) is vacated and action is dismissed.)

Disney v. Air Pirates, 581 F.2d 751 (1978) (Facts: p alleged that D s infringed its copyrighted cartoon picture book and trademark. p did not have a separate copyright on individual characters portrayed in its copyrighted works. p used the term "Silly Symphonies" as trademark. D s produced "counter-culture" cartoon magazines which depicted a number of the p 's characters in drug-related and promiscuous situations antithetical to the p 's character's established images. D 's used the term "Silly Sympathies" in their publications. D 's claimed fair use exception for parody. District Court granted summary judgment for p Held: Summary judgement affirmed on copyright issue; reversed and remanded on trademark infringement. 1)Re copyright issue: D 's copying exceeded permissible levels; its rendition of p 's characters did not conjure up the particular elements being parodied. Thus, its close imitation did not serve a parody function. 2) Re trademark infringement: "While a comparison of the mark and the imitation is one such factor [in determining likelihood of confusion], that comparison should not be a simple, visual, side-by-side comparison but rather the mark and the imitation should be viewed 'in light of what occurs in the marketplace'.)

Pebble Beach Co. v. Tour 18 Ltd., 155 F.3d 526 (5th Cir. 1998) (Facts: p s operate expensive golf resorts attracting prestigious tournaments and clientele and ranked among the top golf courses in the country. D operates golf courses, called "Tour 18" comprised of golf holes copied from famous golf courses. One of D 's courses copies three golf holes from courses operated by the p s, and uses p 's trademarks to identify the golf holes. Held: District Courts' judgment affirmed as follows: no dilution or infringement occurred - a golf hole's trade dress is generic, unless secondary meaning can be established, and p s did not provide evidence of secondary meaning; However, one of the p s, Sea Pines, established that its golf hole acquired secondary meaning by means of significant advertising, and identification with a specific lighthouse.; D is enjoined from using p 's trademarks except to inform the public of the golf holes it copied; D must include disclaimers on all advertising and make no claims of using blueprints or maps of original golf holes. D )

Ticketmaster v. Microsoft, NO. 97-3055 (C.D. Cal., complaint filed April 17, 1997) ("Seattle Sidewalks" Case)

In Re Old Glory Condom Corp., 1993 TTAB LEXIS 3 (TTAB 1993) (Facts: Appellant, Old Glory Condom Corp., appeals PTO's refusal to register trademark and design of a condom decorated with stars and stripes, suggestive of the American flag. Held: Reversed. 1) The duty of [The Patent and Trademark Office] under the Trademark Act in reviewing applications for registration is to register marks which identify and distinguish goods and services in the marketplace, as long as the marks do not violate any statutory provision. "Moreover, the registration scheme of the Trademark Act is one more inclined to inclusion than exclusion, the obvious idea being to give as comprehensive a notice as possible, to those engaged in commerce, of the trademarks and service marks in which others have claimed rights. 2) In considering whether a mark is "scandalous" and therefore unregisterable under § 2(a) of the Trademark Act, the court must consider the entire context of the mark's use. In this case, in the era of AIDS and safe sex awareness, these public policy factors mitigate against a finding that the mark is offensive.)

Porsche Cars of North America v. Manny's Porshop, Inc., 972 F. Supp. 1128 (N.D. Ill. 1997) (dilution of Porsche trademarks by Porsche repair shop)

Interstellar Starship v. Epyx, 983 F. Supp. 1331 (1997) (trademark and Internet domain names)

IV. Trademarks: Unusual Trademarks & Trade Dress:

Levi Strauss v. Blue Bell, 778 F.2d 1352 (9th Cir. 1985) Facts: while finding secondary meaning for pants tabs in blue jeans pants, and therefore protection granted Levi Strauss (who used pants tabs since 1969). p sues because tab used in shirt. Held: court finds for D, absent secondary showing for shirts, no infringement for shirt tabs.

Warner Lambert v. McCrory’s Corp, 718 F. Supp. 389 (D.NJ. 1989) Amber color of Listerine mouthwash is not protectable as trademark since it functions to indicate mouthwash is unflavored and medicinal.

In Re Owens-Coming Fiberglass, 774 F.2d 1116 (1985) (Facts: Appellant, Owens-Coming Fiberglass appeals the PTO's denial of registration of the color "pink" as a trademark for fibrous glass residential insulation. Held: PTO's denial of appellant's trademark application reverse. Appellant's use of the color "pink" has no utilitarian purpose, does not deprive competitors of any reasonable right or competitive need, and is not barred from registration on the basis of functionality. It serves the classical trademark function of indicating the origin of the goods, and thus protects the public.

In re Clarke, 17 U.S.P.Q.2d 1238 (TTAB 1990) Facts: Clarke manufactures sewing thread with floral fragrance reminiscent of Plumeria blossoms. Examiner originally rejected trademark registration for scent as non-identifying of origins of goods. Held: scent can serve as an identifier because it is not intrinsic to goods, but added feature supplied by applicant. Advertisements by applicant also show prima facie case for scent as distinctive identifier.

Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844 (1982) Facts: p/respondent, Ives Laboratories, held a patent on a vasodilator drug. When the patent expired, several generic drug manufacturers began marketing a generic version of the drug, intentionally copying the appearance of the p's capsules. p alleged that some pharmacists had mislabeled generic drugs as its drug and, under § 32 of the Lanham Act, the D was liable for the pharmacists' mislabeling. Court of Appeals held that the petitioners violated § 32 of the Lanham Act; Held: reversed. Generic drug manufacturers are not vicariously liable for infringement of the trademark by pharmacists of a trademark drug where the pharmacists dispensed a generic drug under the trademark.

Yankee Candle Co. v. New England Candle Co., 1997 U.S. Dist. LEXIS 23099 (Mass.) Facts: p company, Yankee Candle, expanded its business, opening new stores with a consistent storefront design which included multi-paneled glass windows, dark wood. p had copyright on the store's blueprints; D, in business less than a year, opened a candle store with a storefront designed to resemble an early American colonial-style home, but which incorporates the style and "look" of the design elements of the p store's exterior and interior layout. Held: p's motion for a preliminary injunction granted. 1) p's store design is purely functional and not consistently used in every store, and is therefore an identifiable trade dress; 2) The idea of selling candles in a Colonial-style store is not copyrightable, but the architectural expression of a Colonial style motif is protectible under copyright. 3) D infringed p's copyright --sufficient evidence exists to show that it had access to copyrighted work, deliberately copied it, and that its store is strikingly similar to the p's design.

Pebble Beach Co. v. Tour 18 Ltd., 155 F.3d 526 (5th Cir. 1998) Facts: ps operate expensive golf resorts attracting prestigious tournaments and clientele and ranked among the top golf courses in the country. D operates golf courses, called "Tour 18" comprised of golf holes copied from famous golf courses. One of D's courses copies three golf holes from courses operated by the ps, and uses p's trademarks to identify the golf holes. Held: District Courts' judgment affirmed as follows: no dilution or infringement occurred - a golf hole's trade dress is generic, unless secondary meaning can be established, and ps did not provide evidence of secondary meaning; However, one of the ps, Sea Pines, established that its golf hole acquired secondary meaning by means of significant advertising, and identification with a specific lighthouse.; D is enjoined from using p's trademarks except to inform the public of the golf holes it copied; D must include disclaimers on all advertising and make no claims of using blueprints or maps of original golf holes.

In re Mogen David Wine Corp., 372 F.2d 539 (C.C.P.A. 1967) Facts: Appellant Mogen David Wine Corp. appeals PTO's refusal to register trademark for decanter bottle configuration on the grounds of lack of evidence of secondary meaning. Held: Affirmed. Appellant's advertising and promotional materials made no reference to the bottle design as an indicator of the origin of the product. The average consumer is most likely to identify the product by means of the written label, not the bottle design. Thus, the bottle design does not create a "commercial impression separate and apart from the word marks.")

Sabert v. Ullman (1999 U.S. Dist., LEXIS 18969) Facts: p has manufactured gold and silver-colored disposable plastic trays and platters since 1984 for sale to retail party stores and caterers, calls lines Gold Look and Silver Look collections. D manufactures gold & silver disposable plates, sells to Wal-Mart & Kmart. Suit for trademark infringement. Held: finds for D, absent alternative color schemes to obtain luxurious look, no infringement. Court suggests a crowding out argument.

Knitwaves, Inc. v. Lollytogs, Ltd., 71 F.3d 996 (2nd Cir. 1995) (Facts: p, a children's clothing manufacturer, obtained copyrights for two sweaters in its 1990 "Ecology Group" collection -- a "Leaf Sweater" and "Squirrel Cardigan." D, a larger manufacturer, introduced a competing line of sweaters, including a similar-looking Leaf Sweater and Squirrel Cardigan admittedly copied from p's sweaters. Held: 1) D illegally copied p's sweaters. The sweaters' "total look and feel" is striking, and "an observer viewing the sweaters side by side cannot help but perceive them as coming from one creative source." 2) However, D did not violate Lanham Act: In making the determination of whether a sweater is protectible under trademark, "we do not ask whether it is "generic," "descriptive," "suggestive," or "arbitrary or fanciful" -- categorizations which we find inapplicable to product features. "Rather, we ask whether it is "likely to serve primarily as a designator of origin of the product." Since Knitwaves did not intend its sweater design to designate the origin of the product, it does not qualify for protection of trade dress inherent in product design.)

Landscape Forms v. Columbia Cascade Co., 113 F.3d 373 (2d Cir. 1997) (Facts: District Court enjoined D from selling a line of its outdoor furniture which p claimed was similar to its line of furniture. Held: injunction vacated. p did not provide sufficient evidence regarding the specific features of its line of furniture that the company claims as trade dress. "Without more exacting analysis, any new product -- particularly a successful one -- could conceivably qualify as inherently distinctive. Landscape's failure is especially troubling because it sought to protect an entire array of products." The district court exceeded its decision-making authority when it concluded that the p's line of products could be protected as trade dress without proof of secondary meaning.)

Wal-Mart v. Samara Bros., (2000 U.S. LEXIS 2197) Facts: Wal-Mart intentionally copies Samara Bros. unusual seer-sucker childrens’ line of clothing, calling the knock-offs Samara copies. Held: concluding a well-developed line of cases on trade dress, the Supreme Court finds there must be a showing of secondary meaning tor protection to attach. Design, like color, is not inherently distinctive. While the Supreme Court does not over-rule the problematic decision of Two Pesos it does severely limit its applicability. Two Pesos applies to protection of product packaging, Samar Bros., and the requirement for secondary meaning, applies to cases of product design. The Court, however, does not provide any clear distinction between the two categories–which will be the thrust of future cases.

Yankee Candle Co. v. New England Candle Co., 1997 U.S. Dist. LEXIS 23099 (Mass.) (Facts: p company, Yankee Candle, expanded its business, opening new stores with a consistent storefront design which included multi-paned glass windows, dark wood. p had copyright on the store's blueprints; D , in business less than a year, opened a candle store with a storefront designed to resemble an early American colonial-style home, but which incorporates the style and "look" of the design elements of the p store's exterior and interior layout. Held: p 's motion for a preliminary injunction granted. 1) p 's store design is purely functional and not consistently used in every store, and is therefore an identifiable trade dress; 2) The idea of selling candles in a Colonial-style store is not copyrightable, but the architectural expression of a Colonial style motif is protectible under copyright. 3) D infringed p 's copyright --sufficient evidence exists to show that it had access to copyrighted work, deliberately copied it, and that its store is strikingly similar to the p 's design.

Ciba-Geigy Corporation v. Bolar Pharmaceutical Co., Inc. , 747 F.2d 844 (3rd Cir. 1984) (Facts: p , Ciba, held a patent on an anti-hypertensive drug which it sold under the registered trademark APRESAZIDE. After p 's patents were dedicated to the public, D manufactured same chemical compound in capsules the same size, shape and color of p 's capsules with the intention that they would resemble them. The capsules were identical except for the manufacturer's imprint. p sought an injunction based on the copying of its capsules' trade dress and under N.J. state unfair competition law. Held: Trade dress of p 's capsules had acquired secondary meaning and D 's imitation was likely to confuse the public.)

Sunbeam Products, Inc. v. Westbend Co., 123 F.3d 246 (4th Cir. 1997) (Facts: p , Sunbeam, sought injunctive relief against D to prevent manufacturing of a stand mixer which p alleged unlawfully copied the design of its own "American Classic Mixmaster." p identified six "key design features" which distinguished its mixer from other commercially available stand mixers: its torpedo-shaped design, front handle, beater-eject button, tear-drop shaped face plate, horizontal stripe or groove, and distinctive combination of black and white features. Preliminary injunction against the D granted by District Court. Held: affirmed. To demonstrate an unlawful trade dress infringement, the p must establish that the trade dress qualifies for trade dress protection. It must demonstrate (1) distinctiveness, (2) secondary meaning, and (3) non-functionality. [The court did not decide the issue of distinctiveness, but found secondary meaning.] Although an item may include function elements, its combination of those elements may be considered non-functional for trade dress purposes. Just because the p 's mixer was illustrated incidentally in utility patents does not necessarily mean that its design is functional. The circumstantial and direct evidence supports a conclusion that the D intentionally copied thep 's product. The intent of the D is a critical factor the court's analysis. If the mark was adopted with the intent of deriving benefit from the reputation of the p , that fact alone may be sufficient to justify the inference that there is confusing similarity.

In re Mogen David Wine Corp., 372 F.2d 539 (C.C.P.A. 1967) (Facts: Appellant Mogen David Wine Corp. appeals PTO's refusal to register trademark for decanter bottle configuration on the grounds of lack of evidence of secondary meaning. Held: Affirmed. Appellant's advertising and promotional materials made no reference to the bottle design as an indicator of the origin of the product. The average consumer is most likely to identify the product by means of the written label, not the bottle design. Thus, the bottle design does not create a "commercial impression separate and apart from the word marks.")

Knitwaves, Inc. v. Lollytogs, Ltd., 71 F.3d 996 (2nd Cir. 1995) (Facts: p , a children's clothing manufacturer, obtained copyrights for two sweaters in its 1990 "Ecology Group" collection --a "Leaf Sweater" and "Squirrel Cardigan." D , a larger manufacturer, introduced a competing line of sweaters, including a similar-looking Leaf Sweater and Squirrel Cardigan admittedly copied from p 's sweaters. Held: 1) D illegally copied p 's sweaters. The sweaters' "total look and feel" is striking, and "an observer viewing the sweaters side by side cannot help but perceive them as coming from one creative source." 2) However, D did not violate Lanham Act: In making the determination of whether a sweater is protectible under trademark, "we do not ask whether it is "generic," "descriptive," "suggestive," or "arbitrary or fanciful" -- categorizations which we find inapplicable to product features. "Rather, we ask whether it is "likely to serve primarily as a designator of origin of the product." Since Knitwaves did not intend its sweater design to designate the origin of the product, it does not qualify for protection of trade dress inherent in product design.)

Landscape Forms v. Columbia Cascade Co., 113 F.3d 373 (2d Cir. 1997) (Facts: District Court enjoined D from selling a line of its outdoor furniture which p claimed was similar to its line of furniture. Held: injunction vacated. p did not provide sufficient evidence regarding the specific features of its line of furniture that the company claims as trade dress. "Without more exacting analysis, any new product -- particularly a successful one -- could conceivably qualify as inherently distinctive. Landscape's failure is especially troubling because it sought to protect an entire array of products." The district court exceeded its decision-making authority when it concluded that the p 's line of products could be protected as trade dress without proof of secondary meaning.)

Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844 (1982) (Facts: p /respondent, Ives Laboratories, held a patent on a vasodilator drug. When the patent expired, several generic drug manufacturers began marketing a generic version of the drug, intentionally copying the appearance of the p 's capsules. p alleged that some pharmacists had mislabeled generic drugs as its drug and, under § 32 of the Lanham Act, the D was liable for the pharmacists' mislabeling. Court of Appeals held that the petitioners violated § 32 of the Lanham Act; Held: reversed. Generic drug manufacturers are not vicariously liable for infringement of the trademark by pharmacists of a trademark drug where the pharmacists dispensed a generic drug under the trademark.)

V. Trademarks: Registration & Competing Marks–Scandalous Marks, Incontestability, Good Faith, & Problems of Priority:

In re In Over our Heads, 16 U.S.P.Q. 2d 1653 (TTAB 1990) Held: trade name Moonies for novelty doll which drops pants ("mooning") when squeezed is not deemed offensive to Unification Church under Lanham Act Scandalous Marks clause, §2(a) since most observers will make the former association. Board notes that determining whether a mark is scandalous within the scope of §2(a) is highly subjective, and should thus be resolved in favor of the mark when there are doubts about its scandalous nature.

Greyhound v. Both Worlds. 6 U.S.P.Q. (TTAB 1988) Clothing label with silhouette of a defacating dog. Manufacturers argue that this is satire of individuals who purchase goods based upon designer labels. Board determines that most people will not understand social commentary; but will readily recognize vulgarity. Rejects registration under Lanham Act §2(a), Scandalous Marks clause.

In re Bad Frog Brewery (TTAB 1999) A micro-brewery uses mark of frog making an obscene finger gesture. Along with the image are slogans–flip the bird, get a frog; an amphibian with an attitude. Trademark examiner makes a distinction between an obscene gesture made by animals, and one made by humans.

Harjo v. Pro-Football, 30 U.S.P.Q.2d 1828 (TTAB 1994) Facts: Members of Native American entities seek cancellation of registered trademark for pro-football team, Redskins. Show dictionary definitions indicating redskin disparages Native Americans, bringing them into contempt, ridicule, and disrepute in violation of Lanham Act §2(a). Held: standing for Native Americans; rejects Pro-Football Constitutional claims of 1st Amendment rights. Upholds cancellation under §2(a).

Stork Restaurant v. Sahati ("Stork Club" case), 166 F.2d 348 (1948, 9th Cir.) Facts: Once famous, New York City’s swank Stork Club has been featured in magazines. A less than upscale club is established in San Francisco with the same name. Held: mere geographic distance does not obviate danger of confusion. Finding of trademark infringement against D.

SNOB case (2d Cir. 1974) Perfume company sold perfume by that name in small quantities (less than 100 bottles) to keep alive mark in US; preventing company selling all over the world from entering the US market. Held: larger quantum of use needed to enjoin another; more than token use.

Hotmail v. Van Money Pie, Inc., 1998 U.S. Dist. LEXIS 10729 (N.D. Cal. 1998) Facts: p Hotmail provides free Internet e-mail addresses. Every e-mail message received by a Hotmail subscriber automatically displays a header depicting Hotmail's domain name and signature mark. D sent unsolicited, bulk e-mails or "Spam" advertising pornography, "get rich schemes," etc. which included Hotmail's domain name/mark. D also obtained Hotmail accounts for purpose of "spamming" operations. Held: preliminary injunction granted against D; p's mark is distinctive, has been advertised and used extensively, and has established considerable consumer recognition. The use of identical marks by D in e- mail to thousands of e-mail users threatens to dilute the distinctiveness of p's trademark and harm p's business reputation.

Porsche Cars of North America v. Manny's Porshop, Inc., 972 F. Supp. 1128 (N.D. Ill. 1997) Facts: A shop in Illinois called Manny’s Porshop repairs dilapidated cars. Its name is written in stylized Porsche script style. Held: court grants preliminary relief to Porsche under dilution theory.

Mattel v. Jcom, LEXIS 16195 (SDNY 1998) Adult web site is called Barbie’s playhouse–its home-page suffused with pink. Court finds infringement under dilution (tarnishment) theory.

Elvis Presley Enterprises v. Capece ("Velvet Elvis" case), 141 F.3d 188 (5th Cir. 1998) D establishes Houston nightclub called the Velvet Elvis, the name symbolizing haute kitsch. The court finds no parody of Elvis himself, rather D is satirizing eclectic bars of the 1960s such as the Hardrock Café. Moreover, Elvis’s name is not necessary for parody. Injunction issued to halt use of name.

Rights of Publicity

VII. Rights of Publicity:

Haelen Laboratories v. Topps Chewing Gum, 202 F.2d 866 (2d Cir. 1953) Early decision recognizing an independent right of publicity (for ballplayers pictures on baseball cards) independent of privacy–since even those who seek publicity may also have proprietary interest in their ability to exploit fame.

Tiger Woods v. Franklin Mint, LEXIS 94-4393 (CD CA 1998) Facts: Tiger Woods declined to enter into licensing agreement with Franklin Mint. D nevertheless issues commemorative medal in honor of p’s victory in the Golf Masters Tournament. Tiger Woods argues he limits endorsements and use of identity in order to sustain its value. Finding: for Tiger Woods under a blurring theory.

Ali v. Playgirl, 447 F. Supp. 723 (S.D. N.Y. 1978) Facts: p, heavyweight boxing champion Muhammed Ali, sought an injunction forcing D, Playgirl Magazine, to cease distribution and dissemination of an issue containing a photograph of a nude black man seated in the comer of a boxing ring, unmistakably recognizable as p. Held: preliminary injunction granted. "...in the course of his public career plaintiff has established a commercially valuable proprietary interest in his likeness and reputation, analogous to the good will accumulated in the name of a successful business entity."

Hoffman v. Capital Cities/ABC, Inc., 33 F. Supp. 2d 867 (1999) Facts: D used a computer- manipulated famous, in-role still photograph of the p, actor Dustin Hoffman, in an article merging still photographs of famous actors and actresses with the bodies of models in Spring 1997 fashions. Held: 1) D violated p's common law right of publicity by using his name and likeness without his consent, causing the p an injury in that he cannot reap the commercial value or control the use to which his name and likeness were put; 2) D violated p's statutory right of publicity by knowingly using his name and likeness on products, merchandise or goods, causing the p an injury in that he cannot reap the commercial value or control the use to which his name and likeness were put. 3) D violated § 43 of the Lanham Act by using the p's name and likeness in a manner which was likely to confuse consumers as to whether Mr. Hoffman was associated with, sponsored, approved, or endorsed the D or the fashions he was wearing, causing the p an injury in that he cannot reap the commercial value or control the use to which his name and likeness were put. The D's "news" or "public affairs" defense does not apply because the article is not a presentation of fashion news or affairs --"The use of Mr. Hoffman's famous face bears no reasonable (or other) relationship to the fashions themselves, but only serves to attract attention to the magazine."

Abdul Jabbar v. General Motors, 85 F.3d 407 (9th Cir. 1996) Facts: D creates advertising campaign featuring its car as the first draft pick. In the background is Lew Alcindor, UCLA first round pick. Lew Alcinder is the prior name of basketball player Abdul Jabbar (before his conversion to Islam). D is abandonment; district court grants summary judgment in favor of D. 9th Cir. reverses–name is an integral part of identity, and cannot be abandoned. Also rejects news & comment D.

Allen v. National Video, 610 F.Supp. 612 (SDNY 1985) D creates advertising campaign around Woody Allen look alike visiting its video stores. There is a caption that such-and-such company provided the celebrity double. Nevertheless, the court allows a § 43(a) claim to succeed since there must be a more emphatic disclaimer that the celebrity does not endorse the products or services advertised.

Motschenbacher v. R.J. Reynolds, 428 F.2d 821 (9th Cir. 1974) Well-known race car (with same number & design) associated with race-car driver Motschenbacher, driven by unidentifiable driver is used in advertising campaign. Despite lack of Motschenbacher himself or his image, the car creates sufficient indicia of identity for finding p’s proprietary interests have been invaded.

Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988) Facts: D used a voice similar to that of the p, singer Bette Midler, in a commercial. p previously declined to sing the song, for which she was renowned, in the commercial, but D had permission to use the song from its copyright holder. Summary judgment granted for D; p appealed. Held: reversed. When a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California.

Waits v. Frito-Lay, 498 F.2d 821 (9th Cir. 1992) Facts: D broadcasts advertisement with song Step Right Up–using vocalization & raspy voice of singer Tom Waits. Waits is well-known for refusing to compromise his artistic integrity by endorsing products. Held: $2M punitive damages (in addition to other damages) for false endorsement, under the Lanham Act § 43(a). Moreover, court states Frito-Lay & Waits were competitors for identity.

Hoffman v. Capital Cities/ABC, Inc., 33 F. Supp. 2d 867 (1999) (Facts: D used a computer-manipulated famous, in-role still photograph of the p , actor Dustin Hoffman, in an article merging still photographs of famous actors and actresses with the bodies of models in Spring 1997 fashions. Held: 1) D violated p 's common law right of publicity by using his name and likeness without his consent, causing the p an injury in that he cannot reap the commercial value or control the use to which his name and likeness were put; 2) D violated p 's statutory right of publicity by knowingly using his name and likeness on products, merchandise or goods, causing the p an injury in that he cannot reap the commercial value or control the use to which his name and likeness were put. 3) D violated § 43 of the Lanham Act by using the p 's name and likeness in a manner which was likely to confuse consumers as to whether Mr. Hoffman was associated with, sponsored, approved, or endorsed the D or the fashions he was wearing, causing the p an injury in that he cannot reap the commercial value or control the use to which his name and likeness were put. The D 's "news" or "public affairs" defense does not apply because the article is not a presentation of fashion news or affairs --"The use of Mr. Hoffman's famous face bears no reasonable (or other) relationship to the fashions themselves, but only serves to attract attention to the magazine.") Warren & Brandeis, The Right To Privacy, 4 HARV L. Rev., 193 (1980)

Martin Luther King Jr. Center v. American Heritage Products, 250 Ga. 135 (1982) (Facts: D developed the idea of marketing a plastic bust of Dr. Martin Luther King, Jr. to support the Martin Luther King, Jr., Center for Social Change. p s, heirs and assignees of Dr. King's copyrighted speeches sought an injunction against D . District Court held for D , arguing that Dr. King did not exploit his publicity rights during his lifetime and had sold the copyrights to his speeches. Held: Dr. King's publicity rights to exploit his name and likeness extend to his family and estate. Thus, D cannot exploit his publicity rights without their authorization.

Ali v. Playgirl, 447 F. Supp. 723 (S.D. N.Y. 1978) (Facts: p , heavyweight boxing champion Muhammed Ali, sought an injunction forcing D , Playgirl Magazine, to cease distribution and dissemination of an issue containing a photograph of a nude black man seated in the corner of a boxing ring, unmistakably recognizable as p . Held: preliminary injunction granted. "…in the course of his public career plaintiff has established a commercially valuable proprietary interest in his likeness and reputation, analogous to the good will accumulated in the name of a successful business entity.")

Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988) (Facts: D used a voice similar to that of the p , singer Bette Midler, in a commercial. p previously declined to sing the song, for which she was renowned, in the commercial, but D had permission to use the song from its copyright holder. Summary judgment granted for D ; p appealed. Held: reversed. When a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California.)

Tiger Woods v. Franklin Mint (This case has been settled.)

Copyright

VIII. Copyright: Subject Matter Requirement:

Morrisey v. Proctor & Gamble, 379 F.2d 675 (1st Cir. 1967) Facts: appeal from summary judgment for D. p is © owner of rules designed for sweepstakes–which he submits to Proctor & Gamble for use. These include printing name, address, social security number, availability on boxes of detergent. Proctor & Gamble uses almost identical rules. Held: Affirmed summary judgment in favor of D. Rules are so straightforward, if copyright protection were admitted, then would crowd out expression.

White-Smith Music Publishing v. Apollo (1908) Pre-1976 statutes did not require fixation; but held that rolls of music for player pianos were not writings because could not be read by human beings. In 1976 © Act, fixation required perception by either person or machine.

MAI System v. Peak (9th Cir. 1997) Fixation may even be temporary holding in random access memory.

Kieselstein-Cord v. Accessories By Pearl, Inc., 632 F.2d 989 (2 d Cir. 1980) (the "Belt Buckle" case) Facts: p registered copyright for belt buckle designs as "jewelry" and of sculpture" made from precious metals. The buckle designs were commercially successful, brought renown to p as a "designer," and were accepted for the permanent collection of the Metropolitan Museum of Art.; D made "knock off" copies of the p's belt buckle designs but from common rather than precious metals.; Held: the ornamental aspect of the p's belt buckles are conceptually separable from their subsidiary utilitarian function. 17 U.S.C. § 102(a)(5) extends copyright protection to "pictorial, graphic, and sculptural works."

IX. Copyright: Exclusive Rights & Infringement:

Mirage Editions v. Albuquerque A.R.T., 856 F.2d 1341 (1989) Appellant removed selected pages from book by artist, Nagel, mounted them individually onto ceramic tiles and sold the tiles at retail store. Creates derivative work.

MGM v. Honda, 900 F. Supp. 1287 (C.D. Cal. 1995) Facts: p owns copyright to James Bond films and character; D, Honda aired a commercial portraying a James Bond-like character. Held: injunction against D granted; p's request for summary judgment denied.. Court rejected D's claim that the commercial was unprotectible under the scenes-a-faire doctrine (Situations, incidents, or events that naturally flow from a common theme, or setting or basic plot premise are "scenes-a-faire."); James Bond is a copyrightable under either the Sam Spade "story being told test" or the Second Circuit's "character delineation" test. In the absence of direct evidence of copying the p must show 1) access and 2) substantial similarity. The Honda Man's character is substantially similar to Plaintiffs' Bond, and D had access to James Bond character and story. Jury must decide whether the Honda commercial captures the total "concept and feel" of p's Bond films.

Bright Tunes Music Corp. v. Harrisongs Music, Inc., 420 F. Supp. 177 (S.D. N.Y. 1976) Facts: D George Harrison composed Beatles'song "My Sweet Lord," containing a musical pattern virtually identical to the unique pattern of p's copyrighted song "He's So Fine"; D had access to the p's song, but composed his song independently; Held: D committed copyright infringement, even though subconsciously accomplished.

Chase-Riboud v. Dreamworks, 987 F. Supp. 1222 (C.D. Cal. 1997) ("Amistad" case) Author of novel on Amistad case claims copyrighted material (treatment of characters, for example) was used in film. Settled.

Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc. 150 F.3d 132 (2nd Cir. 1998) ("Seinfeld SAT" Case). Mock SAT book of trivia questions from Seinfeld series includes 643 fragments. Court states this is more than de minimis taking since it is all from one series, and constitutes both a substantial taking in terms of quantity and quality. The book competes in what might become a derivative market, and is infringing the right of adaptation. No fair use.

X. Copyright: Means of Protection: Databases, New Technologies, and Compulsory Licensing:

CDN v. Kapes, 207 F.3d 402 (2d Cir. 2000) ("Grey Book" case)

Recording Industry Association of America, Inc. v. Diamond Multimedia Systems, Inc., 29 F. Supp. 2d 624 (The Rio/MP3 Audio Player" Case)

Kregos v. Associated Press, 3 F.3d 656 (2d Cir. 1993)

Hyperlaw v. West, 207 F.3d 402 (2d Cir. 2000)

Bridgeman v. Corel, 36 F. Supp. 2d 91 (SDNY 1999)

XI. Fair Use, Copyright Extension Act, and the Public Domain:

Disney v. Air Pirates, 581 F.2d 751 (1978) Facts: p alleged that Ds infringed its copyrighted cartoon picture book and trademark. p did not have a separate copyright on individual characters portrayed in its copyrighted works. p used the term "Silly Symphonies" as trademark. Ds produced "counter-culture" cartoon magazines which depicted a number of the p's characters in drug-related and promiscuous situations antithetical to the p's character's established images. D's used the term "Silly Sympathies" in their publications. D's claimed fair use exception for parody. District Court granted summary judgment for p Held: Summary judgement affirmed on copyright issue; reversed and remanded on trademark infringement. 1)Re copyright issue: D's copying exceeded permissible levels; its rendition of p's characters did not conjure up the particular elements being parodied. Thus, its close imitation did not serve a parody function. 2) Re trademark infringement: "While a comparison of the mark and the imitation is one such factor [in determining likelihood of confusion], that comparison should not be a simple, visual, side- by-side comparison but rather the mark and the imitation should be viewed 'in light of what occurs in the marketplace'.

Hustler v. Moral Majority, 796 F.2d 1148 (9th Cir. 1986) Depiction from pornographic Hustler Magazine of Jerry Fallwell, leader of the Moral Majority, as committing incest with his mother is used by Fallwell in fundraising campaign. Hustler sues for copyright infringement. Court finds non-commercial use because Moral Majority literature creates debate about social issues, and hence use is fair use. Moreover, no cognizable injury because no loss of readers for magazine since the readership is, presumably, non-overlapping.

Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987) Researcher quotes extensively from J.D. Salinger letters deposited in university libraries. Following the Nation case, court finds © protection of unpublished materials. No fair use.

XII Subject Matter of Utility Patents:

Funk Bros. Seed v. Kalo Inoculant Co., 333 U.S. 127 (1948) Product patent for an inoculant to increase the nitrogen-fixing efficiencies of leguminous plants, differing from previous inoculants usable for more than one variety of plants in containing strains of bacteria discovered by the patentee not to be mutually inhibiting was held invalid due to lack of invention.

In Re Alappat, 33 F.3d 1526 (Fed. Cir. 1994) Patent granted for smooth waveform display in a digital oscilloscope involving an anti-aliasing system for pixel illumination because there is a tangible manifestation of algorithm.

MGM v. Honda, 900 F. Supp. 1287 (C.D. Cal. 1995) (Facts: p owns copyright to James Bond films and character; D , Honda aired a commercial portraying a James Bond-like character. Held: injunction against D granted; p 's request for summary judgment denied.. Court rejected D 's claim that the commercial was unprotectible under the scenes-a-faire doctrine (Situations, incidents, or events that naturally flow from a common theme, or setting or basic plot premise are "scenes-a-faire."); James Bond is a copyrightable under either the Sam Spade "story being told test" or the Second Circuit's "character delineation" test. In the absence of direct evidence of copying the p must show 1) access and 2) substantial similarity. The Honda Man's character is substantially similar to Plaintiffs' Bond, and D had access to James Bond character and story. Jury must decide whether the Honda commercial captures the total "concept and feel" of p 's Bond films.

Bright Tunes Music Corp. v. Harrisongs Music, Inc., 420 F. Supp. 177 (S.D. N.Y. 1976) (Facts: D George Harrison composed Beatles' song "My Sweet Lord," containing a musical pattern virtually identical to the unique pattern of p 's copyrighted song "He's So Fine"; D had access to the p 's song, but composed his song independently; Held: D committed copyright infringement, even though subconsciously accomplished)

Carol Barnhardt v. Economy Cover, 773 F.2d 411 (2nd Cir. 1985) Facts: p Barnhardt sued D for copying four of its display mannequins of human torsos; Held: the Barnhardt mannequins are not copyrightable since their aesthetic and artistic features inseparable from their utilitarian function.; Although they may be "aesthetically satisfying and valuable," this is insufficient to show that the aesthetic or artistic features are physically or conceptually separable from the forms' use as utilitarian objects.

Kieselstein-Cord v. Accessories By Pearl, Inc., 632 F.2d 989 (2nd Cir. 1980) (the "Belt Buckle" case) Facts: p registered copyright for belt buckle designs as "jewelry" and "sculpture" made from precious metals. The buckle designs were commercially successful, brought renown to p as a "designer," and were accepted for the permanent collection of the Metropolitan Museum of Art.; D made "knock off" copies of the p 's belt buckle designs but from common rather than precious metals.; Held: the ornamental aspect of the p 's belt buckles are conceptually separable from their subsidiary utilitarian function. 17 U.S.C. § 102(a)(5) extends copyright protection to "pictorial, graphic, and sculptural works."

Matthew Bender & Co. Inc. v. West Publishing Co., 158 F.3d 674 (2d Cir. 1998) (copyrighting of judicial case reporters)

Chase-Riboud v. Dreamworks, 987 F. Supp. 1222 (C.D. Cal. 1997) ("Amistad Case")

Liebowitz v. Paramount, 948 F. Supp. 1214 (S.D. N.Y. 1996) (photograph of nude, pregnant Demi Moore on the cover of Vanity Fair)

Microstar v. FormGen Inc., 154 F.32 1107 (9th Cir. 1998) ("Duke Nukem" Case)

Mirage Editions v. Albuquerque A.R.T., 856 F.2d 1341 (1989) (appellant removed selected pages from book by artist, Nagel, mounted them individually onto ceramic tiles and sold the tiles at retail store).

Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc. 150 F.3d 132 (2nd Cir. 1998) ("Seinfeld SAT" Case)

Data East USA, Inc. v. Epyx, Inc., 1987 U.S. Dist. LEXIS 14231 (N.D. Cal. 1988) ("Karate Champ" case)

Recordings Industry Association of America, Inc. v. Diamond Multimedia Systems, Inc., 29 F. Supp. 2d 624 (The "Rio"/MP3 Audio Player" Case)

Patent

Funk Bros. Seed v. Kalo Inoculant Co., 333 U.S. 127 (1948) (product patent for an inoculant to increase the nitrogen-fixing efficiencies of leguminous plants, differing from previous inoculants usable for more than one variety of plants in containing strains of bacteria discovered by the patentee not to be mutually inhibiting was held invalid due to lack of invention.)

In Re Alappat, 33 F.3d 1526 (Fed. Cir. 1994) (patent granted for smooth waveform display in a digital oscilloscope involving an anti-aliasing system for pixel illumination)

State Street Bank and Trust v. Signature Financial Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998) (Hub and Spoke calculations for investment portfolio)

Graver Tank v. Linde Air Products, 339 U.S. 605 (1950) (upholding patent validity and infringement claims regarding a patent for fluxes used in electric welding, and the process of welding by using them)

Roche v. Bolar, 733 F.2d 858 (Fed. Cir. 1984) (considering the length of time a pharmaceutical company which has a patent on the active ingredient in a drug can have exclusive access to the American market for that drug; once patent expired, D wanted to market a generic drug using the active ingredient).

Periodic Updates:

An updated list of supplemental cases, including complete references and brief summaries is provided. This list will be updated frequently to reflect class discussions and your suggestions. Please suggest cases to add to the list!