Chicago IP Attorney & Lawyer : R. David Donoghue : Chicago IP Litigation Blog

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Nat'l. Spiritual Assembly of the Baha'is of the U.S.A. Under the Hereditary Guardianship, Inc. v. Nat'l. Spiritual Assembly of the Baha'is of the U.S.A., Inc., ___ F.Supp.2d ___, 2008 WL 1839078 (N.D. Ill. Apr. 23, 2008) (St. Eve, J.).

Judge St. Eve denied defendant the National Spiritual Assembly of the Baha'is of the United States' (the "NSA") motion to hold non-parties Franklin D. Schlatter, Joel B. Marangella, the Provisional National Baha'i Council ("PNBC"), the Second International Baha'I Council (d/b/a Baha'is Under the Provisions of the Covenant)("SIBC"), and the Baha'i Publishers Under the Provisions of the Covenant ("BPUPC")(collectively the "Alleged Contemnors") in contempt for violating the 1966 permanent injunction against plaintiff The National Spiritual Assembly of the Baha'is of the United States Under the Hereditary Guardianship, Inc.'s (the "NSA-UHG" or "UHG") use of the NSA's trademarks. Shortly after the injunction was entered, the NSA-UHG dissolved. NSA argued that its former officers, Schlatter and Marangella, remained bound by the injunction. But the Court held that officers or agents of an entity that are not personally named in an injunction are only bound while acting for the named entity or a subsequent entity formed to avoid the injunction. Schlatter's and Marangella's alleged contempt, therefore, is dependent on their new entity PNBC's status.

The Court held that PNBC was not in privity with NSA-UHG. NSA-UHG followed the directives of its spiritual leader, Mason Remey. PNBC, however, followed the directives of its spiritual leader Marangella, not Remey. Furthermore, Marangella specifically instructed PNBC and its members not to violate the injunction. PNBC, Schlatter and Marangella, therefore, were not in privity with NSA-UHG and not bound by the injunction.

Similarly, non-parties Jensen, SIBC and BPGPC were not in privity with NSA-UGH, even though they admitted to being successors-in-interest to Remey. Jensen disassociated themselves from the NSA-UGH and Remey several years before the injunction was issued.

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Trading Techs. Int’l, Inc. v. eSpeed, Inc., No. 04 C 5312, Slip Op. (N.D. Ill. May 22, 2008) (Moran, Sen. J.).*

After a jury held that certain of defendants' (collectively "eSpeed") products willfuly infringed two of plaintiff Trading Technologies' (“TT”) futures trading software patents (the Court previously reversed the willfulness finding), the Court entered a permanent injunction preventing future sales of the infringing software -- a previous opinion granted summary judgment of noninfringement of eSpeed's current software and all software except that sold during a six month period shortly after TT's patents issued.  The Court looked at each of the four standard injunction elements, as required by the Supreme Court in eBay Inc. v. MercExchange, LLC.

Irreparable Harm

The Court held that TT would be irreparably harmed by any continued sales of infringing product because TT's successful business was built around its patented technology and, therefore, direct competitors with infringing products irreparably harmed TT.    The Court agreed with eSpeed that general claims of competition were insufficient pursuant to eBay, but the Court held that TT's direct competition assertions were supported by trial testimony.

Inadequate Remedy at Law

eSpeed argued that TT's numerous licenses proved that monetary damages could compensate TT, as the eBay district court held after remand.  but the Court distinguished eBay.  eBay was premised upon a combination of plaintiff MercExchange's:

• willingness to license;
  
• choice not to practice the patent;
  
• failure to seek preliminary injuctive relief; and
  
• consistent, clear statements that it desired monetary damages.

In contrast, TT manufactured a patented product and only licensed as an alternative to litigation.  And the Court acknowledged TT's concern that providing monetary damages after trial without an injuction would force a compulsory license on TT.

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Memorial Day is over, but I was too busy at my community's Memorial Day parade to read Patent Barista's Blawg Review #161 Memorial Day tribute until late yesterday evening.  The Baristas say they are not big "flag-waivers", but from where I sit, they waived it well.  Even if you do not have time to read the whole thing (which you should), you should click here just to see the picture of the young woman lying before a service person's grave at what appears to be Arlington National Cemetery.  It is sweet, sad, or maybe both.

And thanks for the link to the Blog's Memorial Day post Baristas.

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HyperQuest, Inc. v. N'Site Solutions, Inc., No. 08 C 483, 2008 WL 1968554 (N.D. Ill. May 1, 2008) (Shadur, Sen. J.).

Judge Shadur dismissed plaintiff's copyright infringement case for lack of subject matter jurisdiction. Plaintiff argued that it was the exclusive licensee of the copyright. But the Court held that plaintiff's license was nonexclusive because licensor retained various rights, including, the rights to:

• Make derivative works;
  
• Reproduce the work; and
  
• Sell the copyrighted software.

But the Court's adoption of defendants' reply was its most notable feature:

To that end [defendants’] Reply addressed fully every aspect of [plaintiff’s] attempt to characterize itself as an exclusive licensee . . . and it completely scotched HQ's position. Because the Reply has covered the waterfront so thoroughly and persuasively, this Court finds it unnecessary to reiterate the analysis there piece by piece-instead it simply adopts [defendants’] presentation as proffered in the Reply.

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According to Chief Judge Holderman during the annual state of the Northern District speech, the state of the Northern District is "good" -- click here for the Northern District's statement regarding the speech.  The Northern District was briefly at full capacity, between Judge Dow's appointment to the Northern District and Judge Filip's resignation to join the Department of Justice.  Other highlights of the presentation included:

• The Northern District remains in the top ten districts in terms of median time to civil case disposition at 6.2 months.
  
• Magistrate Judges Brown and Mahoney were reappointed to additional eight year terms; and
  
• The Northern District's 2007 civil case load remained nearly constant, falling only .5% from its 2006 level.

The Northern District's steady civil case load is especially impressive in light of the Seventh Circuit's reduced case load in 2007.  The Chicago Tribune's Ameet Sachdev reported -- click here for the story -- that the Seventh Circuit's Chief Judge Easterbrook, during his state of the Seventh Circuit speech, reported that the Seventh Circuit's case load dropped 10% for the second year in a row.  Sachdev noted that federal appellate court case loads had averaged a 5% drop per year since 2000.  And Easterbrook explained the Seventh Circuit's 10% drop for 2007 as based upon two primary factors:

• The Seventh Circuit's district courts saw an overall 6% drop in their case loads; and
  
• The Seventh Circuit's preference for bright line rules over totality of the circumstance tests made it easier for entities to settle their disputes, saying:

Rules make it easier for private parties to avoid litigation, or settle their disputes, without asking for appellate evaluation in every case.

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Lorillard v. Montrose Wholesale Candies & Sundries, Inc., No. 03 C 5311 & 4844, 2008 WL 1775512 (N.D. Ill. Apr. 17, 2008) (Aspen, J.).

Judge Aspen adopted Magistrate Judge Cole's Report and Recommendation, denying defendants' Fed. R. Civ. P. 59(e) motion to alter the Court's judgment against defendants – click here to read more about that Report and click here to read more about this case in the Blog's archives. The Court awarded plaintiff Lorillard $2.5M in statutory damages for defendants’ sales of counterfeit cigarettes using Lorillard's trademarks. Defendants objected to, among other things, a statutory damages award in excess of $1M. Defendants argued that 15 U.S.C. § 1117(c)(2) only allowed $1M in statutory damages per type of goods sold. Because this case only involved one type of goods, cigarettes, defendants argued statutory damages could not exceed $1M. But the Court held that the limitation was $1M per counterfeit mark per type of good. Because Lorillard alleged five counterfeit marks were used, the statutory damages limit was $5M. 

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Little Tikes Co. v. Kid Station Toys, Ltd., No. 08 C 1935, 2008 WL 1805379 (N.D. Ill. Apr. 18, 2008) (Gottschall, J.).

Judge Gottschall denied plaintiff Little Tikes' Motion for Temporary Restraining Order ("TRO") to prevent defendant Kid Station Toys, Ltd. ("Kid Station") from selling Kid Station electric toys using Little Tikes' trademarks. From 2003 until February 2008, the parties had a license agreement ("Agreement") pursuant to which Kid Station sold its electric toys using the Little Tikes trademarks. In February 2008, Little Tikes canceled the Agreement pursuant to a provision allowing it to do so for, among other reasons, unsafe toys. Kids Station allegedly had a toy cellphone recalled because it was a potential choking hazard. Kids Station disputed the validity of the termination and continued selling its toys using the Little Tikes trademarks.

The Court held that Little Tikes had shown sufficient likelihood of success on the merits. Its trademarks ownership was undisputed and its success regarding the validity of its Agreement termination was "better than negligible." Additionally, in the parties' Agreement, Kids Station stipulated to Little Tikes' irreparable harm.

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e360Insight, LLC v. Comcast Corp., No. 08 C 340, Slip Op. (N.D. Ill. Apr. 10, 2008) (Zagel, J.).

Judge Zagel granted defendant Comcast judgment on the pleadings, dismissing plaintiff e360Insight’s ("e360") Computer Fraud and Abuse Act, First Amendment, and related state law claims. e360, an Internet marketer and accused email spammer, alleged that Comcast harmed e360 by unjustifiably blocking all or most of e360’s emails from Comcast’s customer email accounts. Comcast stopped e360's emails with filtering software that identified and stopped emails from e360 addresses.

Comcast argued that the Good Samaritan clause of the Communications Decency Act, 47 U.S.C. § 230(c)(2), provided Comcast absolute immunity from e360's claims because Comcast voluntarily filtered e360's emails to restrict access to what Comcast believed was objectionable content. The Court held that the Good Samaritan clause provided absolute immunity for ISPs that filtered for objectionable material. The Court also held that Judge St. Eve's and the Seventh Circuit's recent Chicago Lawyers' Committee v. Craigslist opinions – click here for more on those cases – were not applicable. Those opinions limited the clause's protection for ISPs that chose not to filter. Because Comcast filtered, it enjoyed absolute protection. The Court also held that e360's compliance with Congress's spam prevention laws, 15 U.S.C. §§ 7701-13 (Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 ("CAN-SPAM") was irrelevant. Regardless of compliance with CAN-SPAM, the Good Samaritan clause still allowed the ISP to make a good faith judgment that e360's emails were objectionable. And e360 did not sufficiently plead Comcast's lack of good faith in determining that the emails were objectionable.

Eric Goldman at the Technology & Marketing Law Blog has a good post on this case and several other district court cases considering § 230(c) defenses. – click here for his post.

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A legal secretary wrote on her questionnaire, "I believe Mr. Kelly is guilty of the charges due to what I have read in the papers, and the fact that he was indicted by the grand jury further validates my beliefs." The woman and her perfectly worded response were excused. Lest she think she pulled a fast one on the court, Cook County Judge Vincent Gaughan knew her answer had been coached.

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"There's an element of this we just have to live with," said Dave Donoghue, an attorney with DLA Piper who specializes in intellectual property litigation. "It's impossible to have large-scale social networking sites, which people clearly want, without having some risk of this."

Greater policing of social networking sites would be impractical, Donoghue said, comparing it to air travel.

"To make air travel 100 percent safe, the background checks and checks of personal possessions of each individual getting on an airplane would be so cumbersome, time consuming and expensive, it would make air travel impractical," he said. "There has to be a balance."

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IP Law & Business recently named its top 50 IP lawyers under 45 years old (free registration required).  Two of those 50 are Chicagoans -- David Callahan and James Malackowski.

• David Callahan is an IP litigator and partner at Kirkland & Ellis.  As I have mentioned before, I had the opportunity to work with Callahan early in my career.  So, I can confirm that he is a top notch litigator.  Here is what IP Law & Business said about Callahan:

A political science major from the University of Chicago, David Callahan learned electronic warfare, including cryptography, as a U.S. Army Reserve captain. The military discipline has served him well. A University of Michigan Law School grad, Callahan has commanded the defense in key patent infringement wins for 3M, Amazon.com, and Gast Manufacturing in cases covering everything from one-click Internet payment systems to chewing gum additives and dental compounds. He has excelled at big-ticket defense cases involving multiple patents and parties, where his leadership and organizational skills-to say nothing of his legal marksmanship-force plaintiffs to duck.

• James Malackowski is the President, CEO and founder of  Ocean Tomo, a Chicago-based and IP-focused merchant banc.  Here is what IP Law & Business said about Malackowski:

This University of Notre Dame-trained CPA has made a name as a patent market-maker. Twenty years ago he cofounded a firm that did patent valuations. In 2003 Ocean Tomo started offering investment banking services, and it broke new ground in 2006 with the first live auction for IP. The company has conducted six so far-the most recent in April in San Francisco-that have generated $70 million in transactions, including the $15 million sale of guitarist Jimi Hendrix's catalog and the $6 million sale of patents related to digital systems media and management. The latest innovation from Malackowski? He is trying to market insurance that would lessen the cost to companies of patent troll attacks.

Congratulations to both Callahan and Malackowski.  The honor is well deserved for both men.

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Lorillard Tobacco Co. v. Montrose Wholesale Candies & Sundries, Inc., No. 03 C 5311 & 0844, 2008 WL 954161 (N.D. Ill. Apr. 8, 2008) (Cole, Mag. J.).

Judge Cole denied plaintiff's motion for inspection and seizure of assets in its trademark counterfeiting case. The Court previously entered judgment for plaintiff – click here for more about this case in the Blog's archives. Plaintiff brought this motion seeking to identify and seize cash, checks and other financial instruments to satisfy the judgment. The Court held that the motion essentially sought a search warrant directed by plaintiff and utilizing Federal Marshals:

The reality is that the motion is tantamount to a request for a search warrant for Lorillard to enter and search the home of Ray and Sandra Hazemi and the business premises of Montrose Wholesale Candies and Sundries, Inc. (which is owned by them) and for permission to seize any cash, checks or other negotiable instruments belonging to the Hazemis and Montrose and to seize or at least copy all of their financial and accounting records. Nothing in the Motion, itself, suggests that the search and seizure will be accomplished by anyone other than Lorillard. It is not until one looks at the Proposed Order granting the motion that there is even a motion of United States Marshals. But even then, it is Lorillard, through its counsel of record, who is to carry out the search and seizure. The Marshals are merely to accompany Lorillard.

The Court held that the Federal Rules of Civil Procedure did not authorize search warrants. The Court further held that the request was not like a seizure of counterfeit goods, which was authorized by 15 U.S.C. § 1116(d)(1)(A), because it sought a post-judgment search to satisfy a judgment.

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Global Patent Holdings, LLC v. Green Bay Packers, Inc., No. 00 C 4623, Slip Op. (N.D. Ill. Apr. 23, 2008) (Kocoras, J.).

Judge Kocoras reassigned a related case consolidating it with this case and stayed the patent infringement cases pending a second reexamination proceeding. New defendant CDW argued that reassignment of the second case pursuant to Local Rule 40.4 was not appropriate because the first case, which was dismissed without prejudice in light of the first reexam, was filed by TechSearch LLC, instead of the current plaintiff Global Patent Holdings ("GPH"). But original plaintiff TechSearch reopened the case before moving to substitute GPH, the current assignee of the patent in suit and TechSearch's parent, as plaintiff. Because TechSearch reopened the case, the first case retained its first-filed status. The fact that TechSearch and GPH were no longer related entities when the case was reopened was not relevant.

The Court also held that the two cases were related because both accused defendants' websites of infringing the patent because they downloaded or induced others to download JPEG and other files.

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Trading Techs. Int’l, Inc. v. eSpeed, Inc., No. 04 C 5312, Slip Op. (N.D. Ill. May 6, 2008) (Moran, Sen. J.).*

After a two-day hearing and two rounds of briefing, Judge Moran held that defendants (collectively “eSpeed”) had not met their burden of proving that plaintiff Trading Technologies (“TT”) engaged in inequitable conduct before the Patent & Trademark Office (“PTO”). The Court held that one of the TT patent's inventors engaged in commercial use between the priority dates for the patent's provisional and parent applications. But the Court held that TT was not required to disclose the commercial use to the PTO because it was not material to patentability. First, TT sought priority from its provisional application in good faith and had a reasonable belief that priority from the provisional was warranted. The reasonableness of the belief was born out when both the jury and the Court determined that the patent could claim priority from the provisional application. Because the commercial use happened after the patent's critical date (based upon the provisional application), it was not material.**

Additionally, TT did not commit inequitable conduct when it responded to the Examiner's request for, among other things, “any use of the claimed invention” with a series of brochures and presentations that described the software's features, but without identifying the inventor's commercial use. TT argued that the Examiner was seeking an explanation of all of the features of TT's software because it had identified anticipatory prior art from TT's website in a prior Office Action. The Court held that this was a reasonable reading of the Examiner's request because the Examiner accepted TT's response which did not address whether the software had been in use. Had the Examiner wanted an answer to that question, he could have asked again, instead of allowing the patent to issue.

Many readers will be wondering what is next. The Court has a few more pending motions, and a motion for reconsideration would not be surprising in this case. But for the most part, I suspect that this case is now on a fast track to the Federal Circuit, where the Court predicted it was going months ago. As always, I will keep you updated as the case develops, both in the Northern District and at the Federal Circuit.

* Click here to read much more about this case in the Blog’s archives and click here for this opinion.

** Click here and here for more on the determination of the appropriate priority date in the Blog's archives.

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The Northern District of Illinois and Chicago's Federal Bar Association chapter are hosting their Ninth Annual Awards for Excellence in Pro Bono and Public Interest Service awards program this Tuesday, May 13 beginning at 3:30 pm in the James Benton Parsons Memorial Courtroom (2525) of the Dirksen United States Courthouse at 219 South Dearborn Street. The program is open to everyone and is free of charge.

The keynote speaker will be William Neukom, the President of the ABA and partner in K&L Gates.  Prior to his private practice, Neukom was executive vice president of Law and Corporate Affairs for
Microsoft, where he managed Microsoft’s legal, government affairs and philanthropic
activities.

Seven “Awards for Excellence in Pro Bono and Public Interest Service” and one “Special
Recognition Award for Public Interest Service” will be presented to the following Chicago-area lawyers for their pro bono and public interest work before the Northern District:

• Sara C. Arroyo and Rosa M. Tumialán, of Dykema Gossett PLLC (presented by the Judge Coar);
  
• Anthony J. Masciopinto, of Kulwin, Masciopinto & Kulwin, LLP (presented by Judge Manning);
  
• Myron Mackoff, of Richardson & Mackoff (presented by the Chief Judge Holderman and Magistrate Judge Valdez);
  
• Joshua D. Lee and Amy M. Rubenstein, of Schiff Hardin LLP (presented by the
  Judge Brown);
  
• Catherine Caporusso and Margot Klein, of the Federal District Court's Self-Help Assistance Program (presented by Judge Hibbler);
  
• David A. Gordon, Michael B. Nadler, and Kristen R. Seeger, of Sidley Austin LLP (presented
  by Magistrate Judge Schenkier);
  
• Lisa R. Kane, of Lisa Kane & Associates, PC (presented by Chief Judge Holderman); and
  
• Richard J. Gonzales, Clinical Professor of Law, Chicago-Kent (presented by Chief Judge Holderman).

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1. Harris has dropped his subpoena for a deposition of Rick Frenkel, the previously anonymous creator and author of the Patent Troll Tracker -- click here for the post.  The post includes detailed analysis of each party's declaratioins and allegations about the other. 
   
   
2. Frenkel, in a declaration related to the subpoena for his deposition, stated that his Patent Troll Tracker blog will return -- click here for the post.  Unfortunately, Frenkel did not give a date for his blog's return.  While I have not always agreed with the Troll Tracker (for example, I  am not a fan of the "Troll" name), Frenkel researches and writes very well and it will be good to have his voice back as part of the blog conversation.
   
   
3. Mullin's third post is a detailed analysis of whether Frenkel is a reporter, including an analysis of Harris's arguments, through the Niro Scavone firm, that he is not -- click here for Mullin's post.  Mullin concludes that Frenkel is a reporter.  The facts that he wrote anonymously, did not reveal his sources and was advocating a position (which Harris argued meant Frenkel was not a reporter) do not mean Frenkel could not be reporting.  Mullin explains that there is a long history of both advocacy in reporting and anonymous reporting, and that reporters generally do not reveal anonymous sources.
   
   
4. Mullin promised a fourth post this week about anonymous blogging, a subject I have weighed in on several times -- click here for the Blog's anonymous blogging posts.  I will likely comment on Mullin's post once it is up.  But I think he previewed his position when he posted over the weekend that he was discontinuing moderation of comments and welcomed anonymous comments.

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The Chicago Tribune's Ameet Sachdev reported that an ongoing copyright dispute may be coming to a head at the corner of Michigan Avenue and Randolph Street in Chicago, click here for the Tribune article.  In the 1980s, Israeli artist Yaacov Agam was commissioned to create a sculpture for what would become the Stone Container building at 150 N. Michigan Avenue.*  Over time, Chicago weather faded the work and the current owner hired an expert to restore the multi-hued work to its original look.  Agam is unhappy with the restoration because he believes the colors were not restored to the exact shades he originally used.  The work is now back on display at the corner of Michigan and Randolph, and Agam is headed to Chicago this weekend to view the restored, or as he calls it "reconstructed," work.

In a previous Tribune article,** Agam's counsel admits that VARA, the Visual Artists Rights Act, did not protect Agam's position because the work was created before 1990 and because Agam no longer owns his work.  But Agam claimed to hold the copyright in the work and argued that the copyright allowed him to prevent the current owner from creating a derivative work, which Agam believed the restored or reconstructed work to be because of the changed colors.  The dispute is likely governed by the contract commissioning Agam to make the work.  Of course, it is possible, and maybe even likely, that the contract is silent or ambiguous regarding derivative works or that it was an oral contract without proof of what the parties intended.  It will be interesting to see how the dispute is resolved and, I am sure, people who work in the area will be glad that the wooden stump that stood in the work's place has been replaced by some restored version of the work.

*  Click here for a picture of the sculpture and further discussion of this dispute at the One-Way Street. 

**  Click here to read the blog's post about that article.

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Autotech Techs. Ltd. Partnership v. Automationdirect.com, Inc., No. 05 C 5488 2008 WL 783301 (N.D. Ill. Mar. 25, 2008) (Cole, Mag. J.).*

Judge Cole granted in part defendant Automationdirect.com's ("ADC") motion to compel additional records from plaintiff Autotech's database. The parties agreed that an ADC expert would be allowed to develop queries which Autotech would run on its database. After a dispute regarding how to produce the results of the search, the Court ordered production of the documents, which related to records of, among other things, customer confusion. Upon review of the records, ADC demanded that Autotech supplement them with information such as the date of the communication and the identity of the Autotech employees involved. Autotech eventually supplemented the documents with an index identifying, among other things, the identity of the Autotech employee involved in each communication, but not the dates of the communications. ADC moved to compel the production of all fields in Autotech's database for each entry identified by ADC's query. But Autotech countered that it had produced all fields generated by ADC's expert's query. Had the query generated all available fields, they, presumably, would have been produced them all. Because Autotech produced the information generated by ADC's search and supplemented that production with an index, sanctions were not warranted. But the Court did order production, at ADC's expense, of the dates of each communication. The Court also ordered the parties to meet and confer to determine how to produce the dates in a useful format.

*Click here for more of this case in the Blog's archives.

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Vulcan Golf, LLC v. Google Inc., No. 07 C 3371, 2008 WL 818346 (N.D. Ill. Mar. 20, 2008) (Manning, J.).

Judge Manning granted in part the defendants' Fed. R. Civ. P. 12(b)(6) motion to dismiss plaintiffs' RICO, Lanham Act and related state law claims. Plaintiffs alleged that the "parking defendants" – entities that allegedly register common misspellings of domain names – worked together and conspired with defendant Google to populate the misspelled domains with revenue-generating advertising related to the actual web sites' business.*

Anticybersquatting Consumer Protection Act ("ACPA")

The Court denied the Parking Defendants motion to dismiss plaintiffs' ACPA claims. While plaintiffs did not allege that the Parking Defendants were the registrants of the domains at issue, they did allege that the Parking Defendants registered, owned, and controlled the sites. Furthermore, the Court would not rule on the factual issue of whether the domains – for example, vulcangolf.com and vulcanogolf.com – were confusingly similar to plaintiffs' marks.

The Court denied Google's motion to dismiss because while Google did not register or own the domains at issue, it was sufficient that they allegedly "trafficked" in them by working in concert with the other defendants.

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Since writing my May Carnival of Trust post (click here for the post), several others have commented on Web Strategy by Jeremiah's post suggesting that people do not trust bloggers.  Of course, the real point of the studies Owyang cites is that people do not trust an unspecified blogger as much as their family or other unspecified news sources.  As I said before, that should be an expected result and it shows good judgment.  But it is easy to get caught up in the survey and miss the fact that people trust "their" bloggers -- those that they have entered a conversation with, read regularly and, therefore, have developed a trust with.  Several others have picked up on Owyang's post and the surveys, with similar comments.  I am posting them in an Addendum to avoid breaking the Carnival of Trust ten post rule (although I will update that post with a link to this one).  Here are some of the commentaries:

• Kevin O'Keefe at LexBlog and Real Lawyers Have Blogs says that he must be trusted, there is no explanation for his site traffic and speaking engagements except trust -- click here for Kevin's post:

People put their butts on the line at least once a month asking me to speak in front of large groups. Just received invites to speak at the Texas Bar Annual Conference and to keynote at a Wisconsin Bar Association Conference. I don't know any of the people who invite me. They're reading my blog. If they didn't trust what I was writing, would I get an invite?

Law firms, from solo's to the largest in the country, call me for advise on blogging. The same firms subscribe to LexBlog's blog service. No other way those folks know me than my blogging.

And for the record, Kevin is wrong, he is pretty funny.  But he is correct in that the legal community would not keep reading his blog for the humor alone, it is for his insights coupled with his delivery.

• Kevin also cited Bill Ives at the Fast Foward Blog who had similar comments, arguing that blogs (as opposed to MSM sources) require more work on the part of readers to determine whether they should trust the blogger and on the part of the blogger to cultivate and earn that trust -- click here for the post:

Blogs are conversations and they do put more responsibility on the reader to judge the material than say, the New York Times, with its army of fact checkers. But even the NYT gets it wrong some times and everyone has some type of bias. Blogs are also a medium. The NYT also has many of them. Do you trust a magazine article more than television? In each case, the answer would be it depends on the person. This is not say that communication channels do not have their own properties. Naturally, seeing someone on TV gives you more information than a magazine article. Blogs are usually the voice of a single person or a group of individuals and not an editorial board. However, a blogger has to build the trust of his or her audience by being consistent and transparent as the first commenter wrote above.

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Welcome to the May 2008 Carnival of Trust.  For regular Blog readers, this will be a slight departure from the case analysis format you have come to expect.  But I promise you the trust-related links will still be valuable reading for IP litigators and IP litigants.  And in the spirit of the Carnival, I will now proceed to build your trust in me by following through on that promise.

The Carnival of Trust is a monthly, traveling review of ten of the last month's best posts related to various aspects of trust in the business world.  It is much like the weekly Blawg Reviews that I post links to and have hosted, but those generally contain far more than ten links.  My job this month was to pick those ten posts for you and provide an introduction to each post that makes you want to click through and read more. 

Do you trust me?  Jeremiah Owyang at Web Strategy by Jeremiah says you do not , unless you are related to me.  But the real point of Owyang's post and the studies he cites is that people do not trust an unspecified blogger as much as their family or other unspecified news sources.  That is not surprising and even shows good judgment.  As Anne Reed at the Deliberations blog points out, choosing blogs is about developing trust.  You find a few that you like and trust, trust developed by entering that blogger's conversation and developing confidence in that person's posts, and based on your trust in those blogs, you begin to find other quality blogs:

I learned the territory one or two blogs at a time, first coming to like and trust a few blogs (and bloggers) and then following their links and blogrolls to others. 

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• Startup guru Guy Kawasaki has started the Alltop project which categorizes blogs by subject matter and aggregates blog content  for each subject on a single page.  The law Alltop site is excellent, although I would suggest adding the Chicago IP Litigation Blog.  It is like having someone else set up and update feed readers for you.  This is how Alltop describes itself:

We help you explore your passions by collecting stories from “all the top” sites on the web. We’ve grouped these collections — ”aggregations” — into individual Alltop sites based on topics such as environment, photography, science, celebrity gossip, fashion, gaming, sports, politics, automobiles, and Macintosh. At each Alltop site, we display the latest five stories from thirty or more sites on a single page — we call this “single-page aggregation.”

• The Patent Appeal Tracer follows patent cases from filing of a Federal Circuit appeal, after many of the regional IP blogs stop following them, until an opinion issues, when Patently-O and others take over.  It is an interesting idea and a well written blog.  As an example of what they do, check out this recent post on the Federal Circuit appeal of Northern District case Ball Aerosol and Specialty Container, Inc. v. Limited Brands, Inc., No. 05 C 3684 (N.D. Ill.) (Der-Yeghiayan, J.) -- click here or here for coverage of the case in the Blog's archives.

[UPDATE]:  The Chicago IP Litigation Blog has been added to Alltop's law page.  Thanks Guy.  Now, if I could just get Kawasakied.

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On Monday, the Blog will host the May Carnival of Trust.  The Carnival of Trust is a monthly compendium of blog postings related to trust in business, trust in selling, trust in society at large.  It is kept interesting by the vibrant and varied commentary of each month's host, and by the ten post limit for each month.  Click here to submit your trust-related posts for the Carnival.

Click here to check out the April Carnival at the True Colors Consulting Blog, and click here for the March edition at Duncan Bucknell's IP Thinktank Blog.

Read more about the Carnival of Trust here at Charles Green's Trust Matters Blog.

And while I am discussing blog carnivals, do not miss this week's Blawg Review #157 hosted by Thoughts from a Management Lawyer.

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Genender Int'l, Inc. v. Skagen Designs, Ltd., No. 07 C 5993, Slip Op. (N.D. Ill. Apr. 14, 2008) (Grady, J.).

Judge Grady denied defendant Skagen's Fed. R. Civ. P. 12(b)(3) motion to dismiss plaintiff Genender's declaratory judgment ("DJ") case. The Court also granted in part Skagen's Fed. R. Civ. P. 12(b)(6) motion to dismiss, dismissing Genender's tortious interference claim. Skagen argued that Genender's DJ suit should be dismissed in favor of Skagen's later-filed suit for design patent and trade dress infringement filed in the District of Nevada. Skagen argued that dismissal was required by the Seventh Circuit's standard as set forth in Tempco Elec. Heater Corp. v. Omega Eng., Inc., 819 F.2d 746 (7th Cir. 1987). The Court, however, held that Federal Circuit law controlled because of the design patent claims. And the Federal Circuit explicitly rejected Tempco in Genentech, Inc. v. Eli Lilly & Co., 998 F.2d 931 (Fed. Cir. 1993) (abrogated on other grounds). Instead, the Federal Circuit required that Skagen provide a "sound reason" that proceeding with the DJ would be unjust or inefficient. Skagen provided no such reason and, in fact, Skagen's counsel agreed at argument that it did not matter whether the case was tried in the Northern District or in the District of Nevada.

The Court dismissed without prejudice Genender's tortious interference claim. Genender alleged that Skagen interfered with Genender's business relationship with customer Sears by copying Sears personnel on cease and desist letters. But the claim was deficient because Genender did not allege that it lost any Sears business because of Skagen's actions.

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