The Federal Circuit affirmed today the U.S. Trademark Trial and Appeal Board’s refusal to allow aspirin-maker Bayer to register "aspirina" as a trademark.  The Board deemed aspirina merely descriptive of "analgesic goods" (can you say aspirin?) and therefore ineligible for registration.  The court held that substantial evidence supported the conclusion.  One judge dissented.  In re Bayer Aktiengesellschaft, No. 2006-1279 (Fed. Cir. May 24, 2007).

Note:  Hat tip to commenter John L. Welch for pointing out that the Board held "aspirina" descriptive but not generic.  We’ve clarified the post accordingly.  Thank you, John.

Barry Barnett

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The Second Circuit today vacated an order denying motions by the States of California and New Hampshire to send back to state courts lawsuits that they brought against companies that manufactured, refined, marketed, or distributed an octane-enhancing gasoline additive, methyl tertiary butyl ether ("MTBE").  The court held that neither the federal officer removal statute, nor the bankruptcy removal statute, nor any other jurisdictional basis supported keeping the cases in federal court.  It directed the district court to remand them to state courts in California and New Hampshire.  In re Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litig., No. 04-5974-cv (2d Cir. May 24, 2007) (available at www.ca2.uscourts.gov).

Barry Barnett

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Senator John Sherman (1823-1900).  Did he
belong to a "tort bar"?

Blawgletter has said — at least twice — that we admire the The Wall Street Journal‘s factual reporting and that, for a different reason, we also adore its editorial zaniness.  Today’s page A16 made our adoration all the more fervent.

Celebrating the Baby Bells’ Supreme Court 7-2 victory in Bell Atlantic Co. v. Twombly (post here), the editors opined:  "Score this one for consumers and capitalists against self-styled ‘consumer advocates’ and their tort bar funders."

The WSJ, even before Rupert Murdoch wrests it from the Bancroft family, seems intent on tarring any lawyer who represents any plaintiffs in any kind of case with the same "tort bar" brush.  But if, by tort bar WSJ, means anybody who helps remedy serious wrongdoing, Blawgletter suspects that Republican Senator John Sherman of Ohio, sponsor of what we now call the Sherman Antitrust Act (1890), would accept the epithet as a compliment. 

Antitrust law protects citizens from monopolists as well as from business conspirators who scheme to allocate customer territories, limit supply of goods, and raise prices.  Private individuals who dare to enforce antitrust law undertake enormous risks to vindicate consumer rights against the most powerful corporations in the world.  A group that now, we suppose, includes the corporate owners of the WSJ — and, coming soon, Mr. Murdoch’s gargantuan News Corporation.

Barry Barnett

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Today, the Ninth Circuit bid a not-so-fond adieu to the case in which a jury awarded $5 billion in punitive against Exxon for the 1989 grounding of its tanker, The Exxon Valdez, on Blight Reef in Alaska’s Prince William Sound.  The panel cut the award to $2 billion on due process grounds.  One judge dissented because "the punitive damages award in this case is not ‘grossly excessive’" and therefore met constitutional requirements.  In re The Exxon Valdez, No. 04-35182 (9th Cir. May 23, 2007).

The court also declined to review the case en banc.  Two judge dissented — one because he believed that the $2 billion award still violated due process and the other because he thought Exxon shouldn’t have to pay punitive damages for putting a backsliding alcoholic in charge of a supertanker.

Barry Barnett

Way-hey, and up she rises.

The Seventh Circuit today affirmed an order denying certification of a class in a dispute over whether State Farm owed policyholders $10 per day for not renting a car during repair of their own vehicles.  Pastor v. State Farm Mut. Auto. Ins. Co., No 06-2384 (7th Cir. May 23, 2007) (applying Illinois law) (Posner, J.).

Barry Barnett

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The Second Circuit today dismissed a complaint against accounting firm KPMG to recover fees and expenses arising from criminal tax fraud charges involving former KPMG partners and employees.  The court held that the district court, which presides over the criminal case, erred in extending "ancillary" jurisdiction to the civil dispute between the defendants and non-party KPMG.  Treating KPMG’s appeal as a petition for writ of mandamus, the court issued the writ, vacated the district court’s orders, and dismissed the civil complaint.  Stein v. KPMG, LLP, No. 06-4358 (2d Cir. May 23, 2007) (available at www.ca2.uscourts.gov).

The case stems from allegations that KPMG devised and marketed fraudulent tax shelters.  The district court concluded that the government violated the individual defendants’ constitutional rights under the fifth and sixth amendments by pressuring KPMG — under threat of indictment — not to pay the ex-KPMGers’ criminal defense costs.  The Second Circuit expressed no opinion on the constitutionality question.

Update:  WSJ story here.

Barry Barnett

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The Supreme Court of Delaware concluded last week that a creditor lacks standing to sue corporate officers and directors for breach of fiduciary duties:

[W]e hold that the creditors of a Delaware corporation that is either insolvent or in the zone of insolvency have no right, as a matter of law, to assert direct claims for breach of fiduciary duty against the corporation’s directors.

North Am. Catholic Ed. Programming Found., Inc. v. Gheewalla, No. 521, 2006 (May 17, 2007).  The court did reaffirm that creditors of an actually insolvent corporation may assert derivative claims against Ds and Os for fiduciary breaches but held that the fact of insolvency doesn’t entitle them to pursue direct claims in their own right.

Barry Barnett

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Abercrombie’s logo looks nothing like this.

People sometimes ask Blawgletter how Blawgletter can blawg and keep a powerhouse law practice humming at top speed at the same time.  Our usual answer?  "We are proud of our efforts to secure the Nation and are reaping the benefits of the momentous changes to the counterterrorism and counterintelligence programs we instituted during the last year with your support."

Which brings us to mooses.  More particularly, it draws us into a fight about whose moose logo can beat the other’s.  Abercrombie & Fitch designed two moose logos (one in "outline" and another in "silhouette") to brand some of its togs.  Moose Creek, a competitor, started using a moose logo, too, on its shirts, jackets, and other wearing apparel.  Abercrombie sued for trademark infringement, but the district court denied its application for a preliminary injunction.  The Ninth Circuit vacated the denial and remanded for reconsideration in light of the court’s legal rulings.  Abercrombie & Fitch Co. v. Moose Creek, Inc., No. 06-56774 (9th Cir. May 22, 2007).

Those rulings concerned a previous bout of litigation between Abercrombie and Moose Creek.  In the earlier case, Moose Creek accused Abercrombie of infringing its trademark in a different sort of moose logo — one that included the word "moose".  The parties settled their dispute, but in the new lawsuit the district court didn’t cotton to what it saw as Abercrombie’s positional flip-flops. 

The Ninth Circuit didn’t share the district court’s perturbation at the changes in position, holding that circumstances had changed and that Abercrombie simply altered its position accordingly.  The court therefore rejected the district court’s conclusion that Abercrombie had "judicially estopped" itself from certain arguments in support of a preliminary injunction.

Barry Barnett

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