Kathleen O’Malley

And the Survey Says: Nothing?

Order Vacating ITC Invalidity and Infringement Determinations and Remanding for Further Proceedings, Converse, Inc. v. Int’l Trade Commission, (Fed. Cir.) (Oct. 30, 2018) (Judges Dyk, O’Malley, and Hughes)

We’ve previously discussed some of the challenges of obtaining quality consumer survey evidence in trademark litigation in past posts, such as here and here. The persuasiveness and wisdom of a consumer survey was once again called into question, this time by the Federal Circuit in its October 30 opinion in Converse’s long-running trademark litigation against Skechers, New Balance, and others. The appeals court identified a “series of errors” requiring remand, including that the International Trade Commission applied incorrect standards to both invalidity and infringement and erred in its secondary meaning analysis. READ MORE

Going Back to Cali? Federal Circuit Solidifies General Right To Transfer Out of ED Tex

Many technology companies here in Silicon Valley find themselves in the Eastern District of Texas – either as a plaintiff drawn to the district’s reputation as a plaintiff’s forum or as a less-willing defendant.  Motions to transfer are often the first motions filed in such cases since these companies often maintain the bulk of their operations outside of the Eastern District.  The Federal Circuit just issued a case on April 3, 2014, that sheds a little more light the Fifth Circuit’s test (which would be applied by Texas courts, amongst the other district courts in the Fifth Circuit) for determining whether a case should be transferred from the district in which it was filed to another. In re Toyota Motor Corporation, et al., Appeal No. 2014-113. This decision should facilitate transfer out of the Eastern District. READ MORE