Seattle Trademark Lawyer

Last week, the Administrative Office of the United States Courts released its annual report on the “Judicial Business of the United States Courts.” There’s a lot of statistical information in there. Most is organized by judicial district, but some is broken down into both case area and judicial district. For instance, the report states 49 trademark cases were filed in the Western District in the year ending September 30, 2007. Sixty-three trademark cases were terminated in that time, and 29 were pending.

Those figures are a bit higher than my own analysis of Western District trademark cases (see here and here). My review of the federal courts’ PACER database in January showed that 28 trademark cases were filed in the Western District in the calendar year 2007, and 51 cases filed between 2005 and 2007 were closed. I did not count cases that remained pending in 2007.

The courts’ report shows the Western District dwarfs its sister district to the east when it comes to trademark activity. The Eastern District of Washington had only one trademark case filed, three terminated, and one pending in the year ending September 2007.

The Western District had 32 total trials during that time (17 jury, 15 nonjury). The median case that was disposed of in the year ending September 2007 lasted 8.1 months. The median case that was disposed of by trial lasted 19 months. (My analysis showed two trademark cases went to trial in the Western District in 2007.)

In all federal courts, 3,647 trademark cases were disposed of in the year ending September 2007. Thirty-three percent were terminated without any court action. Sixty-seven percent were terminated by court action. Fifty-five percent terminated before trial; 11% during or after pretrial; approximately 0.6% in a nonjury trial; and approximately 1% in a jury trial. As these figures indicate, less than 1.7% of all trademark filings were disposed of in a trial of any kind.

Thanks to the Trial Ad (and other) Notes for publicizing this report.

As discussed yesterday, the Western District of Washington disposed of fifty-one trademark cases in 2007. These consist of cases that PACER identified as being “trademark” matters that parties filed in 2005, 2006, and 2007, and that were listed as being closed in 2007. Here’s how they went down:

• 34 were voluntarily dismissed (presumably most often because the parties settled).
• 11 ended with a stipulated permanent injunction.
• 6 ended with a default judgment against at least one of the parties.
• 2 ended when the plaintiff accepted the defendant’s offer of judgment.
• 2 ended after trial.
• 1 was dismissed for lack of personal jurisdiction.

That puts us at fifty-five dispositions, four more than were filed. This is because cases with multiple defendants sometimes ended with more than one event (e.g., one defendant settled and was voluntarily dismissed, and the other defendant did not appear and lost by default judgment). I’d prefer a nice, neat number, but I guess it doesn’t work that way.

Judge Marsha Pechman was the busiest with motions for temporary restraining orders, granting one (Autodesk Inc. v. Open Design Alliance (post here)) and denying one (High-Rise Technology v. Amatuerindex.com). Judge Ricardo Martinez also denied one (Commscope Inc. of North America v. Electro Products Inc.).

Western District judges in 2007 were more likely to deny motions for preliminary injunction in trademark cases than grant them. Judges Thomas Zilly (Cascade Financial Corp. v. Issaquah Community Bank) (post here), Martinez (Rubber Stamp Management Inc. v. Kalmbach Publishing Co.), James Robart (CMSI Inc. v. Pacific Cycle Inc.), and Robert Lasnik (United Treasures Inc. v. Sarah’s Attic Inc.) each denied such motions. Judges Pechman (Varsity Gold Inc. v. Elite Fundraising LLC) and Franklin Burgess (Thermion Inc. v. Thermion Metalizing Systems Ltd.) granted one each in part and denied one in part. Judge Robart granted the only preliminary injunction outright (Jonathan Neil & Associates Inc. v. JNA Seattle Inc.) (post here). One plaintiff stipulated to a preliminary injunction (American Board of Anesthesiology Inc. v. Liao) (post here). 

The Western District didn’t dispose of a single case on summary judgment. (I didn’t count Judge Ronald Leighton’s recent grant of summary judgment for the defendants in Ormsby v. Barrett (post here) because the case remains active while defendants pursue their counterclaims.) However, Judge Martinez granted defendant’s motion for partial summary judgment in Rubber Stamp Management Inc. v. Kalmbach Publishing Co. (post here). Judges Zilly (Crane v. CTX Mortgage Co. LLC) and Robart (Lahoti v. Vericheck Inc.) (post here) each granted in part and denied in part summary judgment for the defendant. Judge Kelley Arnold denied the defendant’s motion for summary judgment in Mother LLC v. LL Bean Inc. (post here).

Plaintiffs did not fare well on summary judgment: Judge Zilly denied plaintiff’s motion in Crane v. CTX Mortgage Co. LLC and Judge Robart denied plaintiff’s motion in Lahoti v. Vericheck Inc.

Of the two cases that went to trial, the plaintiff won one (Lahoti v. Vericheck Inc.) and lost one by directed verdict (Mother LLC v. LL Bean Inc.). No case went to the jury.

The biggest judgment appears to be the $900,000 the plaintiff obtained by consent judgment in Commscope Inc. of North Carolina v. Electro Products Inc. The other notable judgment was the plaintiff’s default victory to the tune of $610,579 in Dali-USA Inc. v. Domains by Proxy Inc. Most of the other judgments were in the neighborhood of $100,000 or less.

That’s enough statistics for me…. Here’s to an interesting and productive trademark docket in 2008!

Continuing my similar analysis from last year (see posts here and here), I’ve looked at cases that were opened and cases that were closed in the Western District of Washington in 2007. To get a more accurate picture of 2007 activity, I analyzed cases filed from 2005 to 2007 that the federal courts’ PACER database flagged as involving primarily “trademark” issues. The statistics are interesting.

Thirty-eight trademark cases were filed in the Western District in 2007, compared with 64 cases in 2006, and 166 in 2005. 2005 was an unusual year because Microsoft filed 117 infringement lawsuits against John Doe defendants who allegedly were engaged in “phishing,” i.e., using Microsoft trademarks to trick Hotmail customers into providing personal information. Without the Microsoft suits, plaintiffs filed 49 suits in 2005. Even without those cases, new trademark filings in 2007 were the lowest in the Western District in at least three years.

There was no clear “winner” last year for being most litigious. Four plaintiffs filed two trademark lawsuits each: HomeTask Handyman Services Inc. (v. Cooper, and v. and Szewczyk (post here)); Microsoft Corp. (v. Kovyrin (posts here and here), and v. Does 1-301); Topline Corp. (v. Flurt Footwear (post here), and v. 4273371 Canada Inc (post here)); and Derek Andrew Inc. (v. Vital Pharmaceuticals Inc., and v. Chrome Hearts Inc.).

Microsoft’s trademark lawsuits decreased to two cases, down from three in 2006 and 119 in 2005. Washington’s other two companies that made Interbrand’s 2007 list of Best Global Brands (see post here), Amazon.com and Starbucks, did not file any trademark lawsuits here last year.

For me, the biggest surprise was the number of Western District lawsuits involving footwear. These include Topline Corp. v. Flurt Footwear (post here), Brooks Sports Inc. v. Payless Shoesource Inc. (posts here and here) and Diadora SpA v. Payless Shoesource Inc. (post here). I did not realize that footwear was such a big industry in Seattle.

Besides looking at new filings, I analyzed how courts disposed of trademark cases in 2007. The Western District closed six cases that were filed in 2005; 27 cases that were filed in 2006; and 18 cases that were filed in 2007. I did not analyze cases that were filed before 2005.

Looking only at closed cases, trademark cases filed in 2007 remained active on average for 116 days. Trademark cases filed in 2006 remained active on average for 201 days. In 2005, the number was 214 days. The 2005 number was skewed downward by the large number of cases Microsoft brought and dismissed in groups after 134 and 187 days. The 2007 number was skewed downward even further since the only cases that were both filed and closed in 2007 were necessarily short-lived. Considering these factors, it looks like the lifespan of trademark cases here has remained about the same in the last three years.

I’m a little surprised that the average trademark case spans less than one year. I wonder how that compares with other kinds of lawsuits or trademark cases in other districts. My guess is that parties (and to a lesser extent, the courts) dispose of trademark cases quicker than other types of cases. This probably is due to defendants who either do not participate in the case and have a default judgment taken against them or concede their wrongdoing early on and agree to a permanent injunction. I really can’t say whether these figures are consistent with trademark cases in other judicial districts.

Tomorrow’s post will focus on how cases were disposed of in 2007. How many settled? How many went to trial? Which judges granted preliminary injunctions? Which judges granted summary judgment? Tune in tomorrow to find out.

In the previous post, I wondered how Western District trademark cases were decided. Barring new developments this week, I’ve got the answer for 2006. Thirty pending trademark cases were closed in the last year. Not surprisingly, the overwhelming majority were dismissed voluntarily: twelve by a stipulation and order of dismissal, and eleven by a notice of voluntary dismissal. Most of these likely settled.

The Western District decided three orders on preliminary injunction. Judge Robart granted one (RxSales Prescriptions Sales Company, LLC v. Blue Frog Mobile, Inc.) and denied one (CMSI Inc v. Pacific Cycle, Inc.), and Judge Martinez denied one (Rubber Stamp Management, Inc. v. Kalmbach Publishing Co.).

One plaintiff (in Stenzel v. Pifer) obtained a declaratory judgment that it had not violated the Anticybersquatting Consumer Protection Act — remarkably after changing Judge Zilly’s mind on reconsideration.

Judge Martinez dismissed one defendant on summary judgment (Childers v. Sagem Morpho, Inc.). Judge Zilly denied another defendant’s motion for partial summary judgment (The Christensen Firm v. Chameleon Data Corp.).

Three cases were closed because of stipulated permanent injunctions: Shakespeare Co., LLC v. Silstar Corp. of America, Inc.; Port of Subs, Inc. v. Fleischer; and UBuildIt Corporation v. U Build-U Save, LLC (click for orders).

One case involved a temporary restraining order (Autodesk, Inc. v. Open Design Alliance), which Judge Pechman granted.

Two cases were closed because of default judgments (Qwest Comms. Int’l, Inc. v. Sonny Corp. and World Wide Learn, Inc. v. www.worldswidelearn.com).

There were no trials.

All in all, this strikes me as a slow year for trademark cases. I would have guessed that the Western District had issued five preliminary injunctions, at least a couple temporary restraining orders, and a handful of summary judgment orders. Trials in any civil case are rare these days, so I’m not surprised that we didn’t have any trademark case this year go the distance. When I have time, I will look at how trademark cases were closed in past years to see if this year’s activity was consistent with activity in years past.

How many trademark cases are currently pending with the Western District of Washington? As of December 17, thirty-eight. That’s 38 cases that the Western District’s PACER database identifies as being “open” and having “trademark” designated as the “nature of suit.” These cases are distributed relatively evenly throughout the bench: Seattle-based Judges Martinez, Pechman, Robart, and Zilly each has six; Judge Coughenour has five; Judge Lasnik has two; and Judge Donohue has one. In Tacoma, Judge Burgess has three and Judges Arnold, Bryan, and Leighton each has one. Nintendo of America, Inc. v. What’s On, Inc. (alleging trademark and copyright infringement) is the longest-pending trademark case at 783 days (filed October 25, 2004), followed by Microsoft Corp. v. John Does 1-50 d/b/a myauctionbiz.biz (alleging false designation of origin and violation of the CAN-SPAM Act) at 781 days. The shortest pending trademark case is Cascade Yarns, Inc. v. Crafts Americana Group, Inc. (alleging false designation of origin and dilution), filed on December 13.

By my count, from October 25, 2004 (the date Nintendo v. What’s On was filed), to December 17, the Western District closed an additional 206 trademark cases. The most litigious plaintiff? Microsoft, by far, with 124 cases filed — the overwhelming majority of which against John Doe defendants.

It would take some time, but I’d find it interesting to learn how the closed cases were disposed of. Were most of them settled? Dismissed on Rule 12 grounds? Dismissed on summary judgment? How many went to trial? How many of those were jury trials? How many did the plaintiff win?

And even more interesting (but requiring correspondingly more research): which judges granted the most preliminary injunctions? Which judges denied the most? Which were the most likely to dismiss on summary judgment? Which were the most likely to exclude experts? Hopefully I can undertake some of this research in the weeks ahead. My hunch is that the results would be worth the effort.