The Ninth Circuit will decide whether Great Lakes Reinsurance must defend clothing company, In and Out, against a trademark infringement suit by Forever 21. The dispute focuses on exclusionary language in the general liability policy issued by Great Lakes to In and Out, which broadly bars coverage for claims stemming from violations of intellectual property rights, but which also excepts from the exclusion claims for copyright, trade dress and slogan infringement occurring in the company’s advertisements. The appeal concerns last year’s ruling by a California federal judge that Great Lakes owed a defense because the underlying complaint raised a potential that In and Out’s advertising infringed Forever 21’s trade dress. Continue Reading Ninth Circuit to Decide Whether IP Exclusion Applies to Forever 21 Trademark Suit

In May, Hunton & Williams is pleased to host in-person forums in its Charlotte and Dallas offices, bringing together industry experts in technology and procurement to discuss some of the most pressing legal and business issues facing customers in this space. These forums are hosted with the support of ISG. Our program topics include software audits and contract lifecycle management. These forums are designed to provide an in-depth understanding of these issues, as well as key practical and legal principles to apply on a routine basis. Continue Reading IT/Procurement Leadership Forum Hosted in Charlotte & Dallas

As the retail industry continues to invest in and leverage new automation technologies to meet organizational efficiency and cost reduction goals, a growing number of retailers are looking to robots, or more specifically, service delivery automation or robotic process automation (“RPA”), as a solution. What is RPA? In the abstract, RPA is the substitution of human workers with automation. In the real world, according to the Institute for Robotic Process Automation, that translates to software robots that capture and interpret data from existing applications to process transactions, manipulate data, trigger responses and communicate with other digital systems. RPA doesn’t mean that robots will soon be sitting in a cubicle in accounting…at least not yet. Continue Reading The Robots Are Coming to Automate Business Processes

On June 14, 2016, two lawyers in Hunton’s Insurance Coverage Counseling and Litigation practice, Syed Ahmad and Jennifer White, published an article in Risk Management Magazine about how commercial general liability (“CGL”) policies may help policyholders looking to recover attorney’s fees or fund settlements in trademark infringement litigation. Historically, CGL policies were the wrong place to look for coverage, and insurers raised often successful defenses to covering such trademark infringement cases under CGL policies. Or, policyholders would avoid CGL insurance altogether in favor of intellectual property (“IP”) insurance, which usually covers the cost of sitting on either side of the “v.” when enforcing or defending IP rights. But recent case law signals that businesses may want to take another look at the CGL policies that once spurned their IP advances.

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On April 21, 2016, Hunton & Williams LLP announced the launch of a cross-practice 3D printing team to advise clients as they explore this revolutionary technology. Also known as additive manufacturing, 3D printing is being adopted by manufacturers in many industries, including consumer products, aviation, energy, medical, prosthetic and transportation, and is becoming integrated into the production process. Continue Reading Hunton & Williams Launches 3D Printing Team to Guide Clients through Emerging Technology’s Legal Complexities

There is general consensus that 3D printing has potentially revolutionary implications for industry and, along with it, for the law. Its consequences for consumers injured by 3D-printed products are potentially just as far-reaching.

Consider this fact pattern: A plumbing parts manufacturer makes CAD files available to plumbing stores so that they may 3D print replacement parts on demand and on-site in response to customer requests. A plumbing store sells such a 3D-printed part to a customer, but the part malfunctions, causing significant damage to the customer’s home.

In this fact pattern, the injured consumer may have recourse against the plumbing parts manufacturer and the plumbing store, although the manufacturer and store are likely to have agreements with indemnification and liability provisions.

Continue Reading The Uncertain Products Liability Landscape of 3D Printing

On Tuesday, December 22, 2015, the US Court of Appeals for the Federal Circuit issued a much-anticipated opinion regarding the constitutionality of the prohibition against “disparaging” trademarks. In an 9-3 en banc opinion, the Federal Circuit held that the exclusion of disparaging trademarks under Section 2(a) of the Lanham Act violates the First Amendment.

Many of the marks rejected as disparaging convey hurtful speech that harms members of stigmatized communities. But the First Amendment protects even hurtful speech …. The  government cannot refuse to register disparaging marks because it disapproves of the expressive  messages conveyed by the marks. It cannot refuse to register marks because it concludes that such marks will be disparaging to others.

Continue Reading First Amendment Protects Hurtful Speech, Even Hurtful Trademarks

The en banc US Court of Appeals for the Federal Circuit issued its opinion today in SCA Hygiene Products Aktiebolag, et al. v. First Quality Baby Products, LLC, et al., Case No. 2013-1564. In a 6-5 decision, the court reaffirmed that laches is a defense to a suit for damages for patent infringement. In reaching this decision, the Federal Circuit distinguished Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962 (2014), in which the US Supreme Court held that laches is not a defense to a suit for damages under the Copyright Act.

Continue Reading En Banc Federal Circuit Reaffirms Laches as Defense to Patent Infringement Damages

Yesterday, the US Supreme Court in Kimble v. Marvel Enterprises, No. 13-720 (June 22, 2015), upheld the longstanding precedent provided by Brulotte v. Thys Co, 379 U.S. 29 (1964), which stated that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se.” Id. at 32. Justice Kagan, writing the opinion of the Court, stated that stare decisis requires the Court to adhere to the decision in Brulotte.

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This week, the US Court of Appeals for the Federal Circuit issued a precedential decision addressing two important patent damages issues: the entire market value rule and the proper application of the Nash Bargaining Solution in VirnetX, Inc. v. Cisco Systems, Inc., No. 13-1489 (Fed. Cir. Sept. 16, 2014). In vacating a $386 million damages award against defendant Apple Inc., the Federal Circuit first resolved conflicting treatment of the application of the entire market value rule (EMV) by the district courts in cases where the smallest saleable unit is the entire accused device. Holding that the district court’s jury instruction was improper, the Federal Circuit clarified that, unless the EMV rule is satisfied, damages must always be apportioned between patented and unpatented features—even in cases where the smallest salable unit is the accused device itself. Second, the Federal Circuit held that the patentee’s damages expert had improperly relied on the Nash Bargaining Solution because he failed to sufficiently tie the controversial theory (positing a 50 percent/50 percent profit split between the patentee and accused infringer) to the specific facts of the case.

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