by Andrew Berger
Published Wednesday, May 22nd, 2013
I recently moderated a table topics discussion at the INTA annual meeting in Dallas on alternatives available to US mark holders when registering their marks in Europe. One of the issues that came up was the case of Chartered Institute of Patent Attorneys v. The Registrar of Trademarks known as IP Translator (decision here). The case continues to cause problems for Community Trademark fillers seeking a community trademark (CTM) in the European Union (EU).
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by Andrew Berger
Published Tuesday, January 10th, 2012
Mastering Rubik’s Cube may be easier. Predicting the amount of statutory damages that will be awarded in copyright infringement litigation continues to confound attorneys on both sides of the fence. Why? Here are some reasons.
But first a few words of explanation. I originally wrote this post in April of 2010. I decided to update it after some of the cases I mentioned went through further appeals and retrials. I kept the same title (so you may see the earlier version come up on Google searches) but I substantially rewrote this version.
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by Andrew Berger
Published Friday, April 22nd, 2011
Counterfeits cost brand owners billions of dollars every year. How can brand owners combat this problem? What are the best strategies they can employ and will they work?
I am delighted that Lisa Martens has given us some expert and helpful advice. Lisa is a Principal in the Southern California office of Fish & Richardson P.C. Her practice emphasizes trademark prosecution and litigation for the food service, health care, biotechnology, computer, Internet, and retail clothing industries. Her complete bio and contact information are here.
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by Andrew Berger
Published Friday, April 22nd, 2011
Lime Wire continues to educate regarding statutory damages. The latest novel issue it decided is whether a judgment for statutory damages against an individual infringer for copyright infringement of a work in one action bars a statutory award in a second action against a secondarily liable defendant who induced that infringement. In other words where two (or more) infringers are jointly and severally liable, does recovery of an award of statutory damages against one infringer in one action bar a statutory award against the other infringer in a second action.
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by Andrew Berger
Published Wednesday, April 20th, 2011
The Arista Records v. Lime Wire litigation in the Southern District of N.Y., headed for a jury trial in early May, is a statutory damages tutorial. Judge Kimba Wood has decided a number of issues of first impression dealing with the availability of statutory damages in copyright litigation involving secondary and joint and several liability. The statutory damage issues, now answered, include:
1.
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by Andrew Berger
Published Friday, February 25th, 2011
Andrew will be speaking in Chicago at John Marshall Law School’s 55th Annual Intellectual Law Conference on Friday February 25. His topic will be constitutional challenges to statutory damages for copyright infringement. He will focus on the Tenenbaum and Thomas-Rasset cases. Here is his article on the Tenenbaum case he prepared for the talk. It urges that the jury verdict be reinstated.
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by Andrew Berger
Published Saturday, February 19th, 2011
First Circuit review of Judge Gertner’s decision in Sony BMG v. Tenenbaum is in sight with argument set for April 4. In that copyright infringement case, the district court did what no court had ever done before. It threw out a jury award of $675,000 in statutory damages on due process grounds even though the award was within the statutory range set by Congress. The court instead awarded the music labels $67,500 for Tenenbaum’s near-decade of music downloading.
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by Andrew Berger
Published Monday, October 25th, 2010
Sony BMG v. Tenenbaum
Here is the audio of the nine minute podcast I recently did for Suffolk University Law School discussing the district court’s decision in Sony BMG v. Tanenbaum and its impact on copyright enforcement if not overturned on appeal. If for some reason you can’t listen to it here, Legal Talk Network also posted the podcast here.
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by Andrew Berger
Published Monday, September 20th, 2010
How much creativity does copyright require? Thankfully for copyright creators, not much. A dash will do. But in the rare case when that dash is absent, the owner of the work cannot protect it. Express, LLC v. Forever 21, Inc., recently decided in the Central District of California, is the latest example of copyright litigation that collapsed because the copyright owner could not show that its works contained even the spark of creativity.
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by Andrew Berger
Published Wednesday, June 30th, 2010
The Association of Media Photographers recently asked me to write an article for its members explaining statutory damages in copyright litigation. I wrote the article, published in the spring 2010 ASMP Bulletin, to give copyright holders a basic understanding of what statutory damages are, how copyright holders qualify for statutory damages through registration of their copyrighted works and how courts and juries calculate these damages. If your work has been infringed and you are trying to determine the amount of statutory damages you may be entitled to, you may find the article useful. To download the published article, click here.
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