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What is Litigation?

Litigation is the legal process through which the plaintiff and defendant (litigants) argue their side in court to achieve a specific outcome (monetary award, injunction to stop use of patented invention, avoidance of paying a settlement, etc.).

Both businesses and individuals can file complaints with the court to start the process. In the end, the side that provides the best argument or demonstrates enough proof of their claim wins the suit. Typically a judge determines which side wins in litigation, but in some states, sides may request a trial by jury instead.

The Litigation Process

The party who initially files a complaint with the court is known as the Plaintiff. The party or parties named in the complaint are known as the Defendants. Once a complaint has been filed, defendants have a specific amount of time to file a response. From there, other documents providing evidence against the defendant or plaintiff may be filed along with compensation demands.

In many cases, these lawsuits never make it to a courtroom. Other means including mediation and arbitration may be used to help plaintiffs and defendants reach some sort of agreement (monetary compensation, injunction or other constraints, etc.). Mediation and arbitration typically cost less than a trial and help ensure that both parties feel satisfied with the end result – unlike a trial where a judge (or jury) rules either for the plaintiff or defendant.

If the case goes to trial, the party that doesn’t win the lawsuit may file an appeal. This may or may not lead to a retrial or the overturning of a ruling.

Mediation

The mediation process involves each side sitting down and negotiating the finer points of the lawsuit until an agreement is reached. A trained, professional mediator acts as a neutral third-party to help both sides reach a fair agreement. Agreements reached during mediation are non-binding, which means that neither party has to legally follow-through with the agreed upon settlement. In most cases, however, both parties involved really want resolution and try their best to adhere to the agreement. If a mutual agreement is not possible or is not upheld, the lawsuit may continue to trial.

Arbitration

Similar to mediation, the arbitration process helps both parties reach a fair agreement. The only real difference is that all agreements reached during the process are binding – meaning that both parties must adhere to the agreement or face further charges.

Types of Litigation

There are many types of litigation including:

  • business litigation
  • commercial litigation
  • civil litigation
  • securities litigation
  • personal injury litigation
  • intellectual property (IP) litigation

The type of litigation a particular lawsuit falls into depends on the nature of the suit.

Business Litigation

This type of litigation involves one or more businesses or individuals. Lawsuits pertaining to breach of contract, copyright or patent infringement, fraud, or unfair competition, commonly fall into this category.

Commercial Litigation

This type of litigation involves one or more businesses or individuals. Lawsuits pertaining to aspects of business include partnership disputes, business dissolution, employee disputes, licensing agreements, class action suits, and other related business matters may fall into this category.

Civil Litigation

Civil litigation typically involves one or more individuals seeking monetary damages rather than a legal ruling. Reasons to file a civil lawsuit include wrongful death, medical malpractice, anti-trust issues, employee safety issues, personal injury, and landlord/tenant disputes.

Securities Litigation

Securities litigation include lawsuits filed by employees, partners, shareholders, fund managers, pensioners, and others that pertain to potential violation to the Securities Act of 1933, breach of contract, or misuse of company or organizational funds.

Personal Injury Litigation

This type of litigation may also fall under civil litigation as most people that file personal injury lawsuits seek monetary damages for work-related, medical malpractice, slip and fall, or other types of personal injury that may inhibit their ability to earn a living or advance in their career.

Intellectual Property (IP) Litigation

This type of litigation may also fall under business or commercial litigation. IP litigation typically involves businesses or individuals that file a complaint for infringement of their ideas, recordings, or trade names. Typically, the plaintiff claims the defendant knowingly or unknowingly used their protected works or processes without permission.

The Lexero Law Firm Can Help

If you want to file a complaint for litigation or you’ve been named in a litigation complaint, contact Lexero Law Firm today. The firm offers an attorney roster that is can offer expert counsel, advice, and representation in court, mediation, and arbitration proceedings.

Web Retailers Bear No Burden to Police Trademarks

 



A federal judge in New York has ruled that online retailers do not have a burden to affirmatively police trademark infringers that sell on their sites. The case pitted Tiffany, maker of fine jewelry, against eBay. Tiffany asked the court to rule that eBay should be responsible for policing its site for trademark infringers, often in the form of forgeries sold on eBay.

The Court ruled that eBay did not have a duty to affirmatively seek trademark infringers on its site, noting that the duty to protect a trademark falls to the mark’s owner, not a third party sales outlet. Of particular importance, however, was the fact that eBay had promptly investigated and removed any reports of trademark infringements provided by Tiffany.

This is a sensible ruling. eBay and other online retailers should not be assigned policing tasks that are already assigned to other parties, notably, the mark holders. Once the mark holders do their part by notifying retailer of infringement, however, online retailers should have the burden of investigating credible IP threats on their respective sites. The judge noted that eBay had done that in this particular factual scenario. Other courts would be wise to adopt similar assignments of burden to both mark holders and online retailers in future matters.

[Read more...]

Apple Trademark Suggests Gaming

 

Apple Computer recently sought to expand its trademark
protection into a new class of goods: gaming. The proposed expansion of its
preexisting federal trademark has many in the industry wondering what Apple has
planned. Some of the attempted protections are:

 

hand-held units for playing electronic games; hand-held
units for playing video games; stand alone video game machines; electronic games
other than those adapted for use with television receivers only; LCD game
machines; electronic educational game machines; toys, namely battery-powered
computer games.

 

This does not appear to be competition to the Sony
Playstation or Nintendo Wii, for example, which are designed for use with
televisions. Rather, it appears to be an attempt to protect the mark in
“mobile” gaming.

 

Does this mean that Apple intends to compete with the PSPs
of the world? Probably. Apple filed its request under a 1(b) trademark status,
which is defined as a mark applying for protection when the applicant “intends
to use” the mark in commerce, as opposed to having a present use in commerce.
Given that the sought protection does not cover a product or service currently
in the marketplace, the smart money suggests that we will be seeing a new
portable gaming device from Apple shortly.

[Read more...]

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