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Supreme Court to Decide Important Trademark/IP Issue in Nike v. Already

Nike v. Already, Nike commenced a lawsuit arising out of the alleged trademark and trade dress infringement of its “Air Force 1” shoe.   The defendant Already, Inc. d/b/a Yums filed a counter-claim for a declaratory judgment that it did not infringe Nike’s shoe.  Several months later, Nike delivered a “Covenant Not to Sue” Yums. The Second Circuit held that because Nike had submitted a covenant not to sue Yums, the court no longer had jurisdiction over Yums’s declaratory judgment action, and dismissed the action.   In plain English, this means that a trademark holder, after asserting its rights, can avoid litigation by unilaterally promising not to sue, even where the other party seeks a determination of its rights against the trademark holder. The question before the Court: Whether a federal district court is divested of Article III jurisdiction over a party’s challenge to the validity of a federally registered trademark if the registrant promises not to assert its mark against the party’s then-existing commercial activities. The Second Circuit decision: Nike v. Already, Inc. (2nd Circuit) The petition for certiorari: Nike v. Already Petition for Certiorari  ]]]]> ]]>

Road to Nowhere

In Liminae: The Road to Nowhere

It takes us about six hours to drive to the rural state jail (that’s owned by two judges) the Feds contracted with to hold our client. Accused of computer crimes, he can’t effectively review evidence in jail – there’s no practical access to computers in the gulag. They’ve seized all his assets claiming they’re the ill-gotten gains of crimes the government can’t identify, and their computer forensics – if you can call them that – have no scientific basis and are full of basic errors and typos. In my decade as a federal criminal defense lawyer doing computer cases across the country, I’ve never come across a case where the government was so completely off.

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Guilty Until Proven Innocent

A defendant’s view from the trenches of federal criminal court This post is originally published to Substack. You can read and follow us there.

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