October 2008

"Brandsucks.com"

by Lee Gesmer on October 17, 2008

Did you ever wonder how many large companies register their own “sucks” domain names (as in “microsoftsucks.com” or “AIGsucks.com”) in order to prevent someone else from doing so? Like, some unfriendly nasty that wants to use the site to bash the company?

How many “CIOs” (“chief information officer,” for the uninitiated; don’t blame yourself if you didn’t know this), wish they had registered variations of their companies’ names before the “gripers” got ahold of them? Many, I suspect. Check out ebaysucks.com or alitaliasucks.com for example. Nasty stuff, for sure. Not good corporate publicity, for sure.

Bet the folks at eBay and Alitalia wish they’d grabbed these domain names before they were picked up by gripers. The cost of buying “ebaysucks.com” before someone else does is close to zero. It’s just a matter of anticipation.

Of course, its hard for companies to challenge the ownership of sites like these, since a clever owner can claim First Amendment protection as long as he or she doesn’t misstep and use the domain in a way that results in consumer confusion.… Read the full article

Judge Gants' Decision in NERA v. Evans

by Lee Gesmer on October 15, 2008

One of the great benefits of the Suffolk Business Litigation Session (the BLS) is that the judges tend to write detailed opinions explaining their decisions. This tends to be less true elsewhere in the Superior Court. Recently-retired Superior Court Judge Allen van Gestel created a tradition of written jurisprudence while he headed the BLS, and his successors are keeping up the tradition. While these decisions are not published in an official reporter, and they are not binding precedent in the strict legal sense, they are often made available on the Internet, on legal search engines such as Westlaw and in the unofficial Mass. Law Reporter. In this way attorneys and the public are informed on how the BLS judges tend to see issues that come before them. And of course, any given judge is likely to be greatly influenced by a decision he or she has authored on a particular issue; there’s nothing better than citing a judge back to herself.… Read the full article

Zealous Advocacy, or Abuse of Advocacy?

by Lee Gesmer on October 11, 2008

In the Medtronic v. BrainLab patent litigation in U.S. District Court in Colorado, Senior U.S. District Judge Richard P. Matsch has sanctioned Medtronic Navigation, Inc. and its lawyers $4.3 million, an amount which represents part of the attorney’s fees and costs incurred by BrainLab in defending this case. This order is a follow-up to his decision last February ordering that Medtronic be sanctioned, but not deciding (at that time) the precise amount of the sanction.

Unusual circumstances led to this disaster for Medtronic and its counsel. As many readers of this blog know, the judge, not the jury, determines the scope of the patent claims in patent litigation. This is done by the judge before trial, in what is often referred to as a “Markman hearing.” The name of the hearing is based on the 1996 U.S. Supreme Court decision in Markman v. Westview, which held that patent “claim interpretation” is the province of the judge, not the jury.… Read the full article

Two articles in the September/October issue of the Boston Bar Journal (pdf file on BBA site) are of particular interest.

In the first, entitled “Continuity and Change in the Business Litigation Session” Superior Court Judges Judith Fabricant, Ralph Gants and Stephen Neal discuss the Business Litigation Session (BLS) as this session approaches its eighth anniversary and continues its transition following the retirement of Judge Allan van Gestel, who ran the BLS for its first seven years.

Some interesting statistics cited in the article:

  • The BLS (both sessions) takes about 300 cases per year. The court has approved 95% of applications for entry.
  • In each of the two sessions (BLS1 and BLS2) there are fewer than 500 cases pending, as compared with over 800 cases in the other civil sessions in Suffolk County (on average).

As a reminder, links to the BLS Administrative Directives, “Formal Guidence” memos and Procedural Orders are here.… Read the full article