Quality of Evidence Necessary for Preliminary Injunctions

When a plaintiff sues a defendant for misuse of its trademarks, there is often a request for a temporary protection order (immediately stopping the defendant from its use, such order is often issued ex parte, meaning that the defendant does get to be present to argue the matter, so long as the other side gets a hearing within the next few days) and a request for a preliminary injunction (banning the defendant from its use of the mark during the pendency of the litigation).

The evidence at these hearings does not have to strictly comport with the rules of evidence generally, and so hearsay evidence is sometimes admissible to show that the plaintiff should get its sought-after preliminary injunction. Hearsay (with some exceptions) is testimony about what you heard another person say and is inadmissible under the rules of evidence.

Often in preliminary injunction hearings, the plaintiff will produce evidence from its own employees. These employees will give testimony which closely serves the interest of the corporation. Judges and Magistrates who hear such cases often view such evidence with a jaundiced eye, knowing that the employee is going to be doing everything he or she can to get the preliminary injunction. Judges and Magistrates know the bias inherent in such testimony, especially since the boss is likely to be sitting there watching them testify.

The best evidence comes from persons unrelated to the plaintiff, and who could not care less about the outcome of the preliminary injunction hearing. So if you are thinking about trying to get a preliminary injunction against someone you feel is misusing your trademark, and all you have is testimony from your own employees, you might want to get a bit more juice behind you before you go into court.

Policing Trademarks

There are times when you may hear of a trademark owner going after a very sympathetic group of people who are using the mark without authorization to raise money for a good cause. Many will shake their heads at what they conceive as the temerity of the owner of the mark to hassle such good people. Let's look at a hypothetical example.

The NFL owns the trademark to the name "Super Bowl" and learns of a few church groups advertising "Super Bowl" parties for $20.00 per person, with the proceeds going to aid the homeless. The NFL sends these church groups cease and desist letters regarding the parties, and takes action in court to prevent the parties when the church groups ignore the letters.

While some might argue that this is an example of a big corporation being heartless, it is really a legitimate attempt by the NFL to police its marks. It could be argued by future infringers upon the NFL's trademark that since the NFL did not enforce its rights against the church groups, that the future infringers thought that it was okay to misuse the NFL's marks. By policing its marks, the NFL would protect its marks from this sort of attack.

So just because you see a big corporation going after someone misappropriating the mark, this does not mean that the big corporation is being greedy or unsympathetic to the possibly worthy aims of the infringer. It could just mean that the big corporation is doing everything it can to protect its marks from future attack.

Nike and Apple sued for recent combo of iPod and Nike shoes

Nike and Apple have teamed up by coupling their products together to make a more satisfying running experience. With an iPod Nano, some Nike+ shoes, and a Nike + iPod sport kit, you can do much more than listen to music on your run. Nike and Apple claim that the little device becomes your coach, your personal trainer and your workout companion. The combination of products allows you to see your elapsed time, current pace and distance covered. When you have finished your workout and our back home in front of a computer, you can upload your training data to nike.com, view your stats online, challenge other runners to virtual races, map out your running routes, and soon you will be able to download music specifically designed to accompany workouts.

This all sounds great until a company called PhatRat Technologies heard about it and filed suit against both Apple and Nike claiming patent infringement. PhatRat's patent is entitled, ""shoes employing monitoring devices, and associated methods."

It will be interesting to see the outcome of this suit. Stay tuned.