Weekly IP Takeaways

Prepared by Cislo & Thomas LLP Attorney Mark D. Nielsen, Ph.D.

1. In an interesting case out of the Georgia state court system that we previously wrote about (Takeaway No. 3), the Georgia Supreme Court agreed to review the decision in the case between Google and Edible Arrangements about, among other things, auctioning of the search term “Edible Arrangements” for enhanced placement of search engine results pages. Edible Arrangements contends that it is a theft or conversion, but the intermediate appellate court in Georgia disagreed and ruled for Google. The Georgia Supreme Court will now look at the issue, which is one of significant importance in the online search engine advertising world.

2. In what reads more as “what not to do” instructions for young lawyers, the Second Circuit Court of Appeals upheld very serious sanctions against copyright attorney and “copyright troll” (as referenced by various courts) Richard Liebowitz. Basically, the sanctions for what courts have found to be repeated misconduct and disciplinary issues were necessary to “deter future misbehavior, protect other litigants, and maintain the integrity of the judicial system,” wrote the Second Circuit. In recent years, Liebowitz filed several thousand copyright cases based on alleged infringement of copyrights in photographs. Aside from issues on the merits of a number of those cases, several courts have indicated that Liebowitz himself does not seem to fully grasp what it means to be an officer of the court. All this to say, as lawyers, we need to be honest and forthright with the judges before whom we appear, and put our clients’ interests first.

3. Hollywood legend Clint Eastwood filed a lawsuit against a number of CBD companies alleging that they had posted material online falsely suggesting that Eastwood endorsed their CBD products. At least one of the defendants, a Lithuanian entity, essentially concocted a fictitious narrative about Eastwood stepping away from Hollywood to promote CBD products. Eastwood based his case on his registered trademark in his name, his right of publicity (image and likeness), and related claims. One defendant, in particular, did not respond to the lawsuit, and Eastwood sought a default judgment. Judge Klausner of the Central District of California denied a default judgment without prejudice, finding that a default judgment was warranted, but that Eastwood’s “damage request is unreasonable in relation to defendant’s conduct.” In essence, Eastwood should receive a default judgment once he “proves up” his reasonable damages. The takeaway here, which is an issue our firm litigated a number of years ago is that even in a default judgment context, damages need to be proven up.