This is a hands-on course in litigating trademark, copyright, false advertising, and right of publicity cases in federal court. Open only to students who have taken the introductory course in Trademark Law or Copyright Law (or both), it is taught from the perspective of an experienced trademark and copyright litigator. It should be of interest to any student who seeks to understand how intellectual property litigation works, particularly those planning a career in the area.
We will start with pre-litigation considerations, such as investigating the defendant's activities and sending a "cease and desist" letter, and follow the litigation process through trial and appeal. Assuming that the goal of any litigation is to achieve the "just, speedy and inexpensive" resolution of the dispute (Fed. R. Civ. P. 1), we will focus on techniques for achieving those ends and problems that can impede them. In addition to reviewing and discussing cases, students will be given the opportunity to litigate realistic hypothetical cases by, for example, conducting the deposition or cross-examination of a survey expert or musicology expert, or presenting the trial testimony of a witness who allegedly was confused by two similar, competitive packages. We will also write pleadings, discovery requests, and other litigation documents; engage in settlement negotiations; and draft survey questionnaires. Further, the instructor's law firm regularly conducts hearings, trials, and appeals in federal court in New York, and we will try to observe those and discuss them with the attorneys involved.
Fact patterns and substantive legal issues for the course will include: trademark infringement (likelihood of confusion between brand names); copyright infringement (two works that are alleged to be substantially similar); comparative advertising claims (e.g., one product is better, cheaper, than a competitive product); infringement of trade dress, including package designs and product configurations; and use and misuse of names and likenesses of celebrities.
In addition to selected cases, reading materials will include pleadings, settlement agreements, survey questionnaires and similar items from actual cases, to be distributed during the semester.