Archive for the ‘Economic Damages’ Category

Facebook Sponsored Stories Settlement

Tuesday, May 6th, 2014

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If, like so many millions of people in the US, you or your child have or have had a Facebook account and a Facebook Sponsored Story featured your or your child’s name or profile picture, you or your child may be a “Class Member” in a class action lawsuit which recently settled. IPmetrics’ Chief Economist was Plaintiffs’ expert testifying with regards to the rights of publicity damages.

As you may, or may not, know, Facebook’s “Sponsored Stories” are a form of paid advertising that typically re-posts members’ likes and updates connecting members’ profile image and name with an advertiser’s message to promote to the member’s network of “Facebook friends.”  Facebook and its advertisers do this with the understanding that these advertisements have a better chance that the posts will be seen and clicked-on by targeted users. While Facebook and the advertisers likely benefit from the incremental impact of the ads, the use if members’  images and names would violate statutes that require consent from the member. In intellectual property terms, Facebook is allegedly infringing some of its members’ rights of publicity under California law.

The case has not been heard by the federal courts and liability has not been determined but, while Facebook denies any wrongdoing and any liability whatsoever, a settlement has been reached with the plaintiffs.

The Court issued its Order Granting Motion for Final Approval of Settlement Agreement on August 26, 2013, and the Final Judgment on September 19, 2013. However, appeals have been filed. Before any settlement payments can be made, all appeals filed must be resolved. If you are interested in learning more about the settlement and your rights, you should consult the settlement website.

Reasonable Royalty Damages in Trademark Cases

Friday, August 23rd, 2013

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An important element in many trademark infringement actions is the determination of any damages that have been suffered by the plaintiff.  A specific approach to the expert calculation of damages is the topic of the latest article by David Drews, CLP – President of IPmetrics –  published this month in Intellectual Property Today.

The article, “Reasonable Royalty Damages in Trademark Cases: A Modified Georgia-Pacific Framework for Setting Royalty Rates,” highlights how the various factors used to determine reasonable royalty compensation in patent infringement disputes can be effectively utilized in trademark / trade dress infringement litigation via appropriate alterations that take into consideration the differences between trademarks and patents.

At the federal level,  once liability is proven, the Lanham Act provides for the recovery of defendant’s profits, actual damages sustained by the plaintiff and the costs of the action, subject to principles of equity.

Although US Trademark Law does not explicitly list a “reasonable royalty” as a remedy in trademark infringement matters, this award based on Patent Law as compensation for infringement damages has been recognized as an appropriate alternative in Trademark cases for decades.

This makes sense from an economic perspective since royalty rates have long been utilized as pricing and value indicators for intellectual property of all kinds, including trademarks.

However, as a reasonable royalty is not appropriate in every trademark infringement situation.

The article is available in the print and online versions of Intellectual Property Today.