Second City Bench Memo

Chicago's business litigation and dispute resolution resource

Trademark Claim Flushed by Seventh Circuit

Posted by James E. Griffith on Posted in Trademarks

The “Quilted Diamond Design” of toilet paper made by Georgia-Pacific is functional and therefore cannot be protected as a registered trademark under federal law. Georgia-Pacific Consumer Products L.P. v. Kimberly-Clark Corp., 7th Cir., No. 10-3519, 7/28/11.

In short: Defendant Kimberly-Clark was entitled to summary judgment on Georgia-Pacific’s trademark and unfair competition claims because the asserted product configuration trademarks reflected functional product features, and were therefore invalid.

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Northern District Of Illinois Among 14 District Courts Participating In Cameras-In-Courtroom Pilot Program

Posted by Foley & Lardner on Posted in Federal Courts

In the coming weeks, the Northern District of Illinois will be gearing up to implement its participation in a 36-month pilot program designed to study the impact of video recording of federal court proceedings. The Court is one of fourteen federal District Courts selected in June by the Judicial Conference of the United States–the federal judiciary’s primary policy-making body–to participate in the pilot, which is already up and running in other districts.

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Copyright Termination Rights Come of Age

Posted by James E. Griffith on Posted in Copyrights

Section 203 of the 1976 Copyright Act affords authors the ability to terminate copyright assignments and reclaim for themselves copyrights in the works they created 35 years after first publication. This right cannot be waived by the author and exists regardless of what the author was originally paid for the work. The provision reflects the principle that some authors may strike bad deals, particularly at the beginning of their careers, and they should be afforded an opportunity to undo those agreements after a period of years has passed.

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Injunction Junction I: Practical Tools for Business Emergencies

Posted by Martin J. Bishop on Posted in Injunctions and TROs

Something is urgently threatening your business. Words fail. Negotiations fail. Are you out of options? No. One practical and often very effective tool at your disposal is emergency injunctive relief: the temporary restraining order (“TRO”) and preliminary injunction. You do not need to look any further than today’s headlines to see that companies use these business tools all the time. 

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Judge Denies TRO Attempting To Stop DIRECTV’s NFL Advertising Campaign

Posted by Robert A. Bressler on Posted in Injunctions and TROs

While the National Football League’s (“NFL”) players and owners may have resolved their well-publicized labor dispute, two media giants are in the midst of their own NFL-related quarrel in federal court. Cable television provider Comcast Cable Communications, LLC (“Comcast”) this week lost its bid for a temporary restraining order (“TRO”) against rival television provider DIRECTV, Inc. (“DIRECTV”) before Judge Ruben Castillo in the Northern District of Illinois, No. 11-cv-05284.

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Disclosure of Personal Information on Parking Ticket is Permissible under Driver’s Privacy Protection Act

Posted by Aaron K. Tantleff on Posted in Privacy

In Jason Senne v. Village of Palatine, No. 10-3243 (7th Cir. July 11, 2011), the U.S. Court of Appeals for the Seventh Circuit (the “Court”) affirmed the lower court’s dismissal of the case and concluded that the Village of Palatine is not liable for the “disclosure” under the Driver’s Privacy Protection Act (the “DPPA”), 18 U.S.C. § 2721,et seq., that results from the printing of a person’s name, address, driver’s license number, date of birth, sex, height and weight on a parking ticket if such disclosure is otherwise allowable under the DPPA, notwithstanding whether the nature of the personal information disclosed is necessary for the purpose disclosed.

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Seventh Circuit Reinforces McDonnell Douglas Burden — Shifting Framework in Discrimination Cases

Posted by Robert A. Bressler on Posted in Employment

A recent decision by the Seventh Circuit Court of Appeals reinforced the burden-shifting framework for establishing a prima facie case for employment discrimination based upon indirect evidence. In Luster v. Ill. Dept. of Corrections, No. 09-4066 (Decided on July 19, 2011), the appellate court upheld the trial court’s decision granting summary judgment to the defendant employer on plaintiff’s claim of racial discrimination.

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Seventh Circuit Decides En Bank That Tax Injunction Act Precludes Constructive Trust Over Riverboat Casino Tax

Posted by Jonathan W. Garlough on Posted in Federal Courts

Following a rare vote to vacate a prior panel opinion and rehear en banc the question of the Tax Injunction Act’s application to a claim for a constructive trust over nearly $200 million in taxes collected to assist the Illinois horseracing industry, the Seventh Circuit held that the TIA precluded federal courts from enjoining the disbursement of the tax proceeds to Illinois racetracks. In Empress Casino Joliet Corp., et al. v. Balmoral Racing Club, Inc., No. 09-3975 (7th Cir. July 8, 2011), the Seventh Circuit held, by a 5-3 vote, that a surcharge assessed against riverboat casinos and directed for use by Illinois racetracks was a “tax” subject to the Tax Injunction Act’s prohibition against federal district courts to “enjoin, suspend, or restrain the assessment, levy or collection of any tax under State law.” 28 U.S.C. § 1341. (Disclosure: Foley & Lardner represents intervening tracetracks before the district court and Seventh Circuit).

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Bankruptcy Code Section 1129(b)(2)(A) Does Not Authorize Confirmation of “Cramdown” Plans

Posted by Derek L. Wright on Posted in Bankruptcy

In its June 28, 2011 opinion, the Seventh Circuit Court of Appeals held that Bankruptcy Code § 1129(b)(2)(A) does not authorize confirmation of a debtor’s Chapter 11 plan over the objection of a secured creditor where the debtor seeks to sell assets free and clear of that creditors’ liens, unless that creditor is provided the opportunity to “credit bid” the amount of its liens at the asset sale.

In re River Road Hotel Partners, LLC, 2011 WL 2547615 (7th Cir. 2011). The decision is significant in that its ruling is contrary to the 3rd Circuit’s recent opinion in In re Philadelphia Newspapers, 599 F.3d 298 (3d Cir. 2010) which held that a plan proposing to sell a debtor’s encumbered assets free and clear of liens in an auction where credit bidding would not be allowed could qualify as “fair and equitable” under § 1129(b)(2)(A)(iii).

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Dismissal Not Appealable Final Judgment When Stayed Litigation Still Pending Against Bankrupt Codefendant

Posted by Lars A. Peterson on Posted in Bankruptcy; Federal Courts; Jurisdiction; Parties

A plaintiff seeking to appeal the dismissal of personal injury claims against a company was turned away by the Seventh Circuit on jurisdictional grounds where the plaintiff’s claims against an individual codefendant were still pending before the district court, though stayed by the automatic stay of section 362 of the Bankruptcy Code.

In short: The Seventh Circuit’s decision in Kimbrell v. Brown, ___ F.3d ___ (7th Cir. July 11, 2011) holds that a district court’s dismissal with prejudice of claims against one defendant does not constitute an appealable final judgment under 28 U.S.C. § 1291 where claims in the same matter remain pending against another defendant, even when such surviving claims are stayed by the automatic stay.

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