Apple v. Amazon complaint alleges trademark infringement

HERE is the complaint filed by iPhone maker Apple against Amazon.  Apple alleges that Amazon's use of the phrase App Store for sale of Android phone applications infringes Apple's trademark in the term App Store which was recently registered with the US Patent and Trademark Office.  The registered mark is described by Apple in the registration statement below.  Apple alleges likelihood of confusion.

APP STORE  [U.S. Serial # 77525433]
Goods and Services IC 035. US 100 101 102. G & S: Retail store services featuring computer software provided via the internet and other computer and electronic communication networks; Retail store services featuring computer software for use on handheld mobile digital electronic devices and other consumer electronics. FIRST USE: 20080306. FIRST USE IN COMMERCE: 20080710
IC 038. US 100 101 104. G & S: Electronic transmission of data via the internet, global computer networks, wireless networks and electronic communication networks; Providing access to global computer networks, wireless networks and electronic communications networks for transmission or receipt of data. FIRST USE: 20080306. FIRST USE IN COMMERCE: 20080710
IC 042. US 100 101. G & S: Maintenance, repair and updating of computer software; Providing a website featuring technical information relating to computer software provided; Providing computer software consulting services; technical support services, namely, troubleshooting in the nature of diagnosing and repairing computer software problems; computer services, namely, providing search engines for obtaining data via electronic communications networks; Providing temporary use of non-downloadable computer software to enable users to program, organize and access audio, video, text, multimedia content and third-party computer software programs; Internet services, namely, creating indexes of information, sites, and other resources available on global computer networks for others; Searching and retrieving information, sites, and other resources available on global computer networks and other electronic communication networks for others. FIRST USE: 20080306. FIRST USE IN COMMERCE: 20080710

Final  refusal by Examiner, who considered the mark to be merely descriptive (3/19/2009)
Microsoft has objected to the trademark, saying the term is a generic one.  Pleadings before the Trademark Trial & Appeal Board (TTAB) are HERE

Limits on Malpractice Awards Show Mixed Results - NYTimes.com

Limits on Malpractice Awards Show Mixed Results - NYTimes.com

Report cites design flaw in BP well blowout preventer

the last line of defense - the blowout preventer

The Times reports that an engineering firm has identified flaws in the blowout preventer at the BP Deepwater Horizon oil well.

OTHERWISE: Leonard Weinglass remembered - Newark and the Chicago 7

OTHERWISE: Leonard Weinglass remembered - Newark and the Chicago 7

OTHERWISE: Geraldine Ferraro remembered

OTHERWISE: Geraldine Ferraro remembered

Detroit: A Dream Still Deferred - NYTimes.com

Detroit

 by Thomas J. Sugrue, a professor of history and sociology at the University of Pennsylvania, the author of “The Origins of the Urban Crisis: Race and Inequality in Postwar Detroit.”



AT first glance, the numbers released by the Census Bureau last week showing a precipitous drop in Detroit’s population — 25 percent over the last decade — seem to bear a silver lining: most of those leaving the city are blacks headed to the suburbs, once the refuge of mid-century white flight.
But a closer analysis of the data suggests that the story of housing discrimination that has dominated American urban life since the early 20th century is far from over. In the Detroit metropolitan area, blacks are moving into so-called secondhand suburbs: established communities with deteriorating housing stock that are falling out of favor with younger white homebuyers. If historical trends hold, these suburbs will likely shift from white to black — and soon look much like Detroit itself, with resegregated schools, dwindling tax bases and decaying public services.......A Dream Still Deferred - NYTimes.com

OTHERWISE: ABA backs Right to Counsel for Civil Contempt in Child Support in Supreme Court filing

OTHERWISE: ABA backs Right to Counsel for Civil Contempt in Child Support in Supreme Court filing

Supreme Court Rejects Bright-Line Test for Materiality and Scienter Allegations in Securities Fraud Case

from Skadden Arps

Matrixx Initiatives, Inc. v Siracusano, No. 09-1156 (Mar. 22, 2011) 

A unanimous United State Supreme Court this morning held that a securities fraud complaint, based on a pharmaceutical company's alleged failure to disclose reports of adverse events associated with a product, may state a claim, even if the complaint does not allege that the company knew of a statistically significant number of adverse events. In an opinion by Justice Sotomayor, the Court rejected a bright-line test that would require an allegation of statistical significance in order to satisfy the materiality and scienter requirements under Section 10(b) of the Exchange Act and Rule 10b-5.

In finding that the plaintiffs had adequately alleged material omissions, the Court noted that neither drug regulators nor medical professionals limit the evidence considered for purposes of assessing whether a product causes harm to statistically significant data. "Given that medical professionals and regulators act on the basis of evidence of causation that is not statistically significant, it stands to reason that investors would as well." The Court cautioned that its ruling would not require disclosure of all adverse events, but only those that would significantly alter the total mix of information.

In addressing the scienter issue, the Court first noted that it was assuming (but not deciding) that "deliberate recklessness" would satisfy the scienter element. This leaves for another day the question of whether recklessness constitutes scienter. The Court rejected the drug company's argument that, because plaintiffs did not allege that the company knew of statistically significant evidence that the drug at issue caused harm, there is no basis to infer scienter. The Court held that "Matrixx's proposed bright-line rule requiring an allegation of statistical significance to establish a strong inference of scienter is just as flawed as its approach to materiality."

Supreme Court Rejects Bright-Line Test for Materiality and Scienter Allegations in Securities Fraud Case

Separate and Unequal - Bob Herbert - NYTimes.com

Bob Herbert writes:

I favor integration for integration’s sake. This society should be far more integrated in almost every way than it is now. But to get around the political obstacles to school integration, districts have tried a number of strategies. Some have established specialized, high-achieving magnet schools in high-poverty neighborhoods, which have had some success in attracting middle class students. Some middle-class schools have been willing to accept transfers of low-income students when those transfers are accompanied by additional resources that benefit all of the students in the schools.

It’s difficult, but there are ways to sidestep the politics. What I think is a shame is that we have to do all of this humiliating dancing around the perennially uncomfortable issue of race. We pretend that no one’s a racist anymore, but it’s easier to talk about pornography in polite company than racial integration. Everybody’s in favor of helping poor black kids do better in school, but the consensus is that those efforts are best confined to the kids’ own poor black neighborhoods.

Separate but equal. The Supreme Court understood in 1954 that it would never work. But our perpetual bad faith on matters of race keeps us trying.

Separate and unequal - Bob Herbert - NY Times

Apple Sues Amazon Over Term 'App Store' - WSJ.com

Apple Sues Amazon Over Term 'App Store' - WSJ.com

Mets owners rebut Picard allegations

The New York Times reports:


The owners of the Mets, having been sued for $1 billion by the trustee representing victims of Bernard L. Madoff’s vast Ponzi scheme,  described the complaint filed by SIPC trustee Irving Picard as a  "work of fiction".


The owners - whose investment company is Sterling Equities - say that Picard had repeatedly ignored or misrepresented evidence that showed they had no good reason to have suspected Mr. Madoff was operating a fraud during their many years of investing with him.

Sterling Equities Memorandum of Law in Support of Motion to Dismiss Amended Complaint

Advisers Suggest F.D.A. Limit Menthol Cigarettes - NYTimes.com

Cigarette companies have successfully targeted black smokers

New York times

BUSINESS DAY

Advisers Suggest F.D.A. Review Use of Menthol in Cigarettes

By DUFF WILSON

Published: March 18, 2011

The scientific panel’s findings could provide a legal basis for the F.D.A. to try to limit, phase out or even possibly ban menthol in cigarettes.

80% of Black smoker smoke menthol cigarettes, which have long been the subject of misleading claims by manufacturers who suggest that they are "cool", less dangerous than other cigarettes.

Milestone for BP Fund: Half of claims to date have been processed

The link to this press release by BP Gulf Claims Facility Administrator Kenneth Feinberg is HERE

Gulf Coast Claims Facility Announces an Important Milestone: Over Half of All Interim and Final Claims Submitted to the GCCF Have Been Processed

March 14, 2011  

Kenneth R. Feinberg, Administrator of the Gulf Coast Claims Facility (GCCF) created to process claims of victims of the Deepwater Horizon Oil Explosion, announced today that over 54% of all claims submitted to the GCCF since the end of the Emergency Payment period have been processed.

Feinberg stated that: “Since the end of the Emergency Payment period on November 23, 2010, the GCCF has received approximately 256,000 individual and business claims seeking Final Payments, Interim Payments or Quick Payments.” The GCCF has processed 138,874 (54.2%) of these claims. Some of the key statistics are as follows:

1. 99,905 Quick Payments ($5,000 for an individual; $25,000 for business). Total payments to date approximately $1 billion.
2. In less than one month since the February 18, 2011 formal announcement of the GCCF Final Rules, the GCCF has made Final Payment offers to 18,562 claimants totaling $174,018,282.00; 6,632 claimants have accepted these Final Payment offers totaling $66,612,269.00. The remaining claimants have 90 days from the date of their Final Payment offer to make a decision.
3. In less than one month since the announcement of the Final Rules, 2,763 claimants were paid Interim Payments totaling $36,976,875.00.
4. In less than one month since the announcement of the Final Rules, 19,413 claimants have received a deficiency letter requesting additional information, informing the claimant that the submission of inadequate documentation prevents the accelerated processing of their claims.
5. 2,277 claimants received notification that their reviewed claim resulted in a “0” loss determination.
6. 3,100 claims have been officially denied.
7. 117,889 claims (46%) remain to be processed by the GCCF (hundreds of claims continue to be filed on a daily basis).

Feinberg added: “We are determined to continue to accelerate the processing of all individual and business claims submitted to the GCCF. I remain concerned about the number of claims which lack proof and remain unsubstantiated.”

Feinberg concluded by stating: “We have taken important steps to increase the presence of GCCF personnel at our local claims offices. We have also added GCCF accountants in these offices to help claimants file their claims and learn more about the status of their claims. We are determined to make the GCCF claims process more transparent.”

NY Times Editorial - Phase 2 for the BP Oil Spill Fund

Gulf Oil Spill Damages, Phase Two

Published: March 13, 2011

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There must be days when Kenneth Feinberg, who administered the 9/11 victims fund nearly a decade ago, asks himself why he ever volunteered to run the $20 billion compensation fund for victims of the Gulf of Mexico oil spill. He has heard little but criticism — some justified and helpful, some unfair and unhelpful — from the start....

HERE is the full Times editorial, as posted on the Gulf Oil Spill Facility's website

Reactor design has long been questioned

As I suggested last night.  When you have a hammer everything looks like a nail.  And that looks like a defectively designed reactor under the Reasonable Alternative design test of the Products Liability Restatement, Section 2.  Turns out others made that observation 40 years ago.  Like I said the mistakes creating the accident are always simple.  It's the complications that ensue that are complex. - gwc

The warnings were stark and issued repeatedly as far back as 1972: If the cooling systems ever failed at a Mark 1 nuclear reactor, the primary containment vessel surrounding the reactor would probably burst as the fuel rods inside overheated. Dangerous radiation would spew into the environment.
Now, with one Mark 1 containment vessel damaged at the embattled Fukushima Daiichi nuclear plant and other vessels there under severe strain, the weaknesses of the design — developed in the 1960s by General Electric — could be contributing to the unfolding catastrophe.

HERE is the Times report

OTHERWISE: Disasters Fail to Follow Scripts - Room for Debate - NYTimes.com

 Design defects

Accidents have simple origins. The shuttle's rubber O rings became brittle in the cold.  BP's cut-off valve had no back-up - unlike newer ones.  The Japanese reactors' cooling pumps were diesel engines - which the tsunami flooded when it overflowed the seawall.   What happens next is unpredictable. - gwc

David Lochbaum of Union of Concerned Scientists

The Japanese reactors were designed to cope with power failure for eight hours. Most U.S. reactors can cope with outages for only four hours.
OTHERWISE: Disasters Fail to Follow Scripts - Room for Debate - NYTimes.com

Nader: Cuomo's MedMal Reform - selling out injured baby rights

Ralph Nader may have lost his marbles in the electoral sphere.  But he is still on the mark on tort reform.
Selling out Injurede Baby Rights
By Ralph Nader

New York State's Governor Andrew Cuomo will be judged harshly by history if he doesn't reverse his position supporting limiting the legal rights of brain damaged babies. Imagine a life-time $250,000 cap on pain and suffering and families having to endure a burdensome and humiliating struggle to get medical bills paid as they arise from an insurance funded entity. 
Governor Cuomo is hiding behind the recommendations of his Medicaid Redesign Team, which has more than a sprinkling of hospital and industry lobbyists, and which was the stalking horse for this heartless proposal. 
Why you might ask would Andrew Cuomo, the son of Mario Cuomo, a man widely regarded as a champion of the underdog, advance such a mean-spirited and wrong-headed measure? 
The short answer: political expediency. Credible observers say Governor Cuomo needs to give the health insurance industry a financial benefit in exchange for the health insurance industry not economically punishing hospitals workers. And to top it off with a touch that would make Machiavelli proud, the Governor placed this initiative in his budget proposal. This means that for the New York State Assembly and Senate to vote against this draconian measure used to seal a political deal, the legislators would have to vote down the entire state budget. 
It is shameful that the Governor would use his creativity and intellect to help the health industry at the expense of helpless babies who are victims of medical malpractice.
Many in the health care and insurance industry seem to regard the civil justice system as a nuisance that threatens to destroy our economy and way of life. In reality, America’s civil justice system plays an indispensable role. When the rights of injured consumers are vindicated in court, our society benefits in countless ways: compensating victims and their families for shattering losses (with the cost borne by the wrongdoers rather than taxpayers); preventing future injuries by deterring dangerous health care and other practices, spurring safety innovation; and educating the public to risks associated with certain products and services. These legal rights provide society with its moral and ethical fiber by defining appropriate norms of conduct. 
Governor Cuomo needs to review the facts on medical malpractice. First he should know that supporters of tort "deform" invoke one myth after another: a litigation explosion, juries automatically ruling in favor of plaintiffs and routinely awarding punitive damages, an economy shattered by these awards. Each of these notions is demonstrably false. Only a tiny percentage of persons injured bring lawsuits, and an even tinier percentage of those who do receive large verdicts. Limiting victims' rights is an anti-democratic solution to a trumped-up problem.......

Continued HERE

OTHERWISE: Which schools land the big law firm jobs? ALM 250 report

OTHERWISE: Which schools land the big law firm jobs? ALM 250 report

OTHERWISE: What America's Lawyers Earn - Magazine - ABA Journal

OTHERWISE: What America's Lawyers Earn - Magazine - ABA Journal

Drug company R&D: Nowhere near $1 billion. - By Timothy Noah - Slate Magazine

I have pointed out in law review articles that there is actually no evidence for drug company claims about the cost of bringing new drugs to market. Now there is - and it is a fraction of what they claim.

Drug company R&D: Nowhere near $1 billion. - By Timothy Noah - Slate Magazine

Snyder v. Phelps - First Amendment bars tort remedy for family offended by Westboro Baptist Protest

The bizarre Westboro Baptist Church cult  attended the funeral of a soldier displaying signs like  "God loves dead soldiers".  Yet the offended father  cannot recover damages for the tort of intentional infliction of emotional distress.  It  is barred by the First Amendment, said the U.S. Supreme Court.  I actually agree with Chief Justice Roberts, who was joined by all but Justice Alito.  It is a public matter and the lunatic fringe anti-homosexual group stood 1,000 feet from the church protesting a matter of public concern.


The opinion is HERE


Update: Interesting commentary on the First Amendment issues by Neil Richards at Concurring Opinions.

BP fund lawyer to refuse 100,000 Gulf spill disaster claims | Environment | The Guardian

BP fund lawyer to refuse 100,000 Gulf spill disaster claims | Environment | The Guardian

Deep water, deep trouble | Harvard Gazette

Deep water, deep trouble | Harvard Gazette