Post by jannikki on Jul 15, 2006 19:21:26 GMT -4
Stock Conflict Cited in 9th Circuit Judge's Trademark Rulings
Wednesday July 12, 2:57 am ET
Xenia P. Kobylarz, The Recorder
After losing two trademark cases, an attorney for a software company is trying to get the rulings thrown out because one of the 9th Circuit judges hearing the case apparently had a financial conflict.
Judge Harry Pregerson wrote opinions favoring Time Warner in two cases in which M2 Software fought the multimedia giant over the trademark to the name "M2." Mark Pettinari, representing M2 of Los Angeles, says Pregerson owned stock in Time Warner at the time he heard the cases and issued the rulings.
The motion to vacate the 2005 rulings in M2 Software v. Madacy Entertainment and M2 Software v. M2 Communications was filed Friday. M2 Software, which makes online billing software for Internet music downloads, alleged that Pregerson violated judicial ethics rules in failing to recuse himself from the multimillion-dollar trademark infringement suits.
Pettinari said the motion was prompted by a story in The Washington Post that revealed that Pregerson owned stock in Time Warner. The April 18 story named Pregerson as one of several judges who presided over lawsuits in which they had financial interests.
"We were shocked to learn that Judge Pregerson held a financial interest in Time Warner when he ruled against us," Pettinari said. "The rule is clear in this issue; judges are required to recuse themselves from any case involving companies that they own stock in, no matter how small their holdings are."
Time Warner is not a party to either of the cases, but according to Pettanari briefing in the cases made clear that Time Warner is the owner of one of the companies involved in the case and is a manufacturer of one of the alleged infringing products.
Pregerson was not in his Woodland Hills, Calif., chambers Monday and could not be reached for comment.
The Post article used as an example a 2004 case Pregerson adjudicated involving AOL/Time Warner as defendant. Pregerson told the Post that he did not realize he had a conflict in the case because he originally bought stock in AOL, before it merged with Time Warner.
Pregerson's 2004 and 2005 financial disclosure statements showed he owns up to $15,000 in stock in Time Warner.
Deborah Rhode, an ethics expert at Stanford Law School, said there is certainly room for mistakes, though most judges are pretty careful in terms of knowing their financial holdings.
"We're all fallible, and even the best conflict checks sometimes leave something unaddressed," Rhode said.
Asked whether Pregerson could have somehow overlooked the fact that the defendants in the two cases are affiliated with Time Warner, Pettinari said he doubts it.
"We don't believe he could have missed it and even if he mistakenly overlooked it, it doesn't matter because the statute is absolute," Pettinari said.
The lawsuits, Pettinari said, involved a company called Gaylord Entertainment, which sold its "M2 Communications" division to Time Warner in 2002, though M2 Software had prior claim to the mark. Time Warner is also the manufacturer of Madacy Entertainment's Christian music CDs which are sold bearing M2's trademark -- the subject of M2 Software's other suit.
Two lower court judges ruled against Pettinari's client. Pregerson, as part of a three-judge panel, penned the rulings that ultimately affirmed those decisions.
Pettinari contends that both rulings contradict an earlier 9th Circuit decision upholding M2's trademark and holding that it was the "indisputable senior user of the M2 mark" in the music industry. (M2 Software, Inc. v. Viacom, Inc., 04-56794)
"M2 Software holds an incontestable federal trademark registration for its mark, a distinctive coined symbol that it created in 1991. Just the fact that the 9th Circuit allowed these Time Warner affiliates to use an identical mark out of a universe of available alternatives was itself astonishing," Pettinari said. "To learn that the presiding judge held a financial interest in Time Warner while effectively handing my client's longstanding trademark rights to Time Warner is even more shocking."
Rhode said if it is established that there is indeed a financial conflict, the court might be better served by withdrawing the opinion.
"You are concerned about propriety as well as the fact that the interest may have biased the decision," Rhode said.
biz.yahoo.com/law/060712/01d9eebacb0c4056a722eb8696bb2a01.html?.v=1
Wednesday July 12, 2:57 am ET
Xenia P. Kobylarz, The Recorder
After losing two trademark cases, an attorney for a software company is trying to get the rulings thrown out because one of the 9th Circuit judges hearing the case apparently had a financial conflict.
Judge Harry Pregerson wrote opinions favoring Time Warner in two cases in which M2 Software fought the multimedia giant over the trademark to the name "M2." Mark Pettinari, representing M2 of Los Angeles, says Pregerson owned stock in Time Warner at the time he heard the cases and issued the rulings.
The motion to vacate the 2005 rulings in M2 Software v. Madacy Entertainment and M2 Software v. M2 Communications was filed Friday. M2 Software, which makes online billing software for Internet music downloads, alleged that Pregerson violated judicial ethics rules in failing to recuse himself from the multimillion-dollar trademark infringement suits.
Pettinari said the motion was prompted by a story in The Washington Post that revealed that Pregerson owned stock in Time Warner. The April 18 story named Pregerson as one of several judges who presided over lawsuits in which they had financial interests.
"We were shocked to learn that Judge Pregerson held a financial interest in Time Warner when he ruled against us," Pettinari said. "The rule is clear in this issue; judges are required to recuse themselves from any case involving companies that they own stock in, no matter how small their holdings are."
Time Warner is not a party to either of the cases, but according to Pettanari briefing in the cases made clear that Time Warner is the owner of one of the companies involved in the case and is a manufacturer of one of the alleged infringing products.
Pregerson was not in his Woodland Hills, Calif., chambers Monday and could not be reached for comment.
The Post article used as an example a 2004 case Pregerson adjudicated involving AOL/Time Warner as defendant. Pregerson told the Post that he did not realize he had a conflict in the case because he originally bought stock in AOL, before it merged with Time Warner.
Pregerson's 2004 and 2005 financial disclosure statements showed he owns up to $15,000 in stock in Time Warner.
Deborah Rhode, an ethics expert at Stanford Law School, said there is certainly room for mistakes, though most judges are pretty careful in terms of knowing their financial holdings.
"We're all fallible, and even the best conflict checks sometimes leave something unaddressed," Rhode said.
Asked whether Pregerson could have somehow overlooked the fact that the defendants in the two cases are affiliated with Time Warner, Pettinari said he doubts it.
"We don't believe he could have missed it and even if he mistakenly overlooked it, it doesn't matter because the statute is absolute," Pettinari said.
The lawsuits, Pettinari said, involved a company called Gaylord Entertainment, which sold its "M2 Communications" division to Time Warner in 2002, though M2 Software had prior claim to the mark. Time Warner is also the manufacturer of Madacy Entertainment's Christian music CDs which are sold bearing M2's trademark -- the subject of M2 Software's other suit.
Two lower court judges ruled against Pettinari's client. Pregerson, as part of a three-judge panel, penned the rulings that ultimately affirmed those decisions.
Pettinari contends that both rulings contradict an earlier 9th Circuit decision upholding M2's trademark and holding that it was the "indisputable senior user of the M2 mark" in the music industry. (M2 Software, Inc. v. Viacom, Inc., 04-56794)
"M2 Software holds an incontestable federal trademark registration for its mark, a distinctive coined symbol that it created in 1991. Just the fact that the 9th Circuit allowed these Time Warner affiliates to use an identical mark out of a universe of available alternatives was itself astonishing," Pettinari said. "To learn that the presiding judge held a financial interest in Time Warner while effectively handing my client's longstanding trademark rights to Time Warner is even more shocking."
Rhode said if it is established that there is indeed a financial conflict, the court might be better served by withdrawing the opinion.
"You are concerned about propriety as well as the fact that the interest may have biased the decision," Rhode said.
biz.yahoo.com/law/060712/01d9eebacb0c4056a722eb8696bb2a01.html?.v=1