Listen up, all you dieters out there. Losing weight always, always, always means burning more calories than go down your alimentary canal. One jumbo doughnut costs 633 of the buggers. A person who weighs 150 pounds would have to run at five miles per hour for more than an hour just to get back to even!
Exercise alone, my friends, will not get you where you want to arrive.
Neither, apparently, will contradicting your in-court position to Judge A when Judge B wears the robe.
The Ninth Circuit taught that lesson today to a "Hollywood" diet peddler, Spectrum, whose packaging — its "trade dress" — prompted another, Sunset, to sue for infringement. Sunset alleged before Judge A that Spectrum's refusal, despite demands, to change its infringing 1998 trade dress until 2001 showed intransigence and warranted a preliminary injunction. Spectrum answered that it began using a new trade dress similar to the 2001 version in 1999 and that Sunset acted inequitably in delaying three years to seek an injunction. Judge A bought the argument and denied injunctive relief.
The case later settled for $3,220,000. One of Spectrum's insurers, United, contributed $340,000 to the pot.
United sued to recover its money. It pointed out that its policy, which issued in 2001, didn't cover claims for "publication" of infringing matter before the date of issuance. Spectrum answered by asserting — surprise! — that its 1999 trade dress didn't count as the first publication. Judge B concluded that Spectrum couldn't disown its position before Judge A, and the Ninth Circuit agreed:
If we now allow Spectrum to argue that the claim did not arise until 2001, Spectrum's "gaming" of the courts will allow it the possibility of prevailing on the very position it successfully discredited while attempting to avoid [a] preliminary injunction. The result would be unfair to Sunset, whose alleged harms increased as a result of Spectrum's 1999 arguments. The result would also be unfair to United, whose indemnification obligations increased as Sunset's damages widened after Spectrum successfully avoided an injunction, then later settled.
United Nat'l Ins. Co. v. Spectrum Worldwide, Inc., No. 07-55833, slip op. at 1169-70 (9th Cir. Feb. 2, 2009).