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Plaintiff sought to enjoin defendant, a past employee, from working for a competitor, alleging that the defendant was competing with plaintiff using trade secrets learned while working for plaintiff. Defendant claimed that he was coerced into signing the non-compete agreement, that the trade secrets were not really secrets and that he performed no special services for plaintiff that would serve as a basis for granting an injunction. The court found that plaintiff’s threat to fire defendant if he did not sign the agreement was not coercion and that the complexities of the business coupled with defendant’s advanced degrees were sufficient to find that plaintiff had a right to prevent defendant from unfairly competing by using critical trade secrets defendant learned while employed by plaintiff.

Defendant, a photographer, took a photo of a Hasidic Jew walking on the streets of New York City, without permission. This photo was included in an advertised and well-publicized exhibit open to the public, and some of the publications and reviews of the exhibit included a copy of this photo. In addition, a few copies of the picture were sold for amounts between $20,000 and $30,000. The subject of the picture sued the photographer for violating civil rights laws which bar the unauthorized use of another’s likeness in a commercial venture. He alleged also that this photo violated his religious beliefs. In addition to finding that plaintiff’s time to sue had expired, the court agreed with the photographer that the civil rights laws at issues were applicable only to bar an unauthorized use in connection with advertising and/or trade. Because the photos were art and not advertising or trade they were therefore excluded from these laws. The court held also that the photo was protected free speech even though significant sales were made, noting that the fact that profits were earned did not defeat the defense of free speech.

A will which directed that a trust be created at the donor’s death, released the trustee from losses resulting from the trustee’s failure to diversify the trust investments (which were heavily concentrated at the time the trust was created in the stock of one company). The trustee was, however, directed to sell the investments for compelling reasons. The court, using its own analysis, found that the trustee’s failure to sell the stock of that one company as the value declined by more than 17% over a specific period, coupled with the fact that the trust’s investments returned less than half of the Standard and Poor’s index, was negligent and refused to dismiss a lawsuit seeking recovery based on that negligence. (7/04) Update. In February 2006, the Appellate Division, Fourth Department, unanimously reversed the lower Surrogate’s Court finding and held that the trustee committed no wrong in failing to sell the stock at issue. The court agreed with the Surrogate in finding that the heirs objecting to the trustees conduct did not establish a basis for recovery based on the allegations in the petition, but did not agree that the Surrogate could, on its own and absent allegations by the heirs, determine that the trustee was negligent. The Appellate Division objected to the Surrogate’s decision as being based on hindsight and found that holding the stock was not a bad decision, based on impartial investment information. (2/06)

Director of a non-profit challenged his removal by the remaining board members because his removal was not voted upon at a special meeting called for the specific purpose of removal, as required by the non-profit’s governing rules. The Board claimed that because the removal was voted upon at a regular meeting, and because regular meetings addressed all issues relevant to the non-profit, the Director had sufficient notice and a special meeting was unnecessary. The court held that the failure to provide the Director an opportunity to defend himself in advance of the meeting, a right afforded a board member under the law, defeated the Board’s argument and the Director’s removal was invalid.

Every day businesses and individuals establish a presence on the Internet by purchasing an Internet domain name and setting up a web site. Perhaps you have recently done so. Typically, the domain name you have purchased is identical or closely related to the name of your company or primary product or service. You may assume that by purchasing a domain name matching your business name or product, you have secured the relevant domain names for your business or product. You may be surprised to learn that while you have obtained a domain name to match your business name, someone else may purchase variations of your domain name, including those which are less than flattering. Those same elements that allow the creation of numerous legitimate sites–the ease and low cost of purchasing a domain name and setting up a website, together with the proliferation of domain name extensions–provide unprecedented opportunities to a disgruntled employee or unhappy customer to generate bad publicity in cyberspace by establishing a gripe site. The negative publicity created by the gripe site is compounded when prominent search engines pick it up or when it is discussed in printed publications. This article discusses how this practice exists within the confines if the law.

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A gripe site is a web siteIcreated and maintained by someone other than the owner or user of a particular name or mark, that gripes publicly about that owner’s ideas, service or product. The gripe site is supposedly created to publicize a specific wrong by describing a version of the facts which supports a gripe. The site might center on a single transaction or could be a bulletin board inviting others to post their complaints about the same company or product. Some examples include a mockup of PETA’s activities (before PETA established a site), equifaxeatspoop.com, and capellauniversitysucks.us. While trademark owners aggressively protect their rights (which must be done), they are sometimes unable to force the gripe site’s closure. In addition, the aggressiveness of those owners in protecting their valuable marks often fuels the gripe sites owner’s attacks and generates greater publicity of the gripe site’s existence.

Weight Watchers (“WW”) maintains a system whereby food items are assigned points. Each customer of WW is assigned a permitted number of points per day. Frozen foods manufacturer used Weight Watchers points system on its wrappers but noted that the points system was a feature of WW’s system and a trademark owned by WW. WW sued claiming that the average customer was confused into thinking that WW had either calculated or verified the number of points identified by the manufacturer or otherwise endorsed the item. The court agreed and enjoined the manufacturer’s use of or reference to the points system unless the manufacturer made clear that it had calculated the points. The manufacturer changed its packaging to comply with this order, but the new packaging was very similar to the old. WW objected and asked the court to stop this packaging as well. The court refused. On appeal, the court found that the new disclaimer was too similar to the old and because the lower court’s order was vague, the manufacturer had not established that its packaging was not confusing to the public sufficient to satisfy the lower court’s order.

Tenant sued his landlord alleging lead poisoning. The landlord filed a claim with his insurance company. The insurer sued seeking to avoid its obligation to the landlord to defend against the lawsuit, claiming that the policy had not been triggered. The policy had been drafted so that the insurer was obligated to defend only where the lead reached a certain level, a level that had not been reached here. The insurer claimed that because the level of lead was below the policy trigger point, it had no obligations to the landlord. This exclusion, however, was discussed only in the definition portion of the policy with no mention made in the exclusion portion. The court found that because the policy was poorly drafted and confusing, this exclusion would be ignored.

This case involved two cheese manufacturers/distributors who both used the mark TRADITIONAL to describe their respective feta cheeses. The company that first used the mark sought to prevent the second company from using it in connection with its feta cheese, claiming that the mark TRADITIONAL was suggestive of the type of cheese–hand made, old word–and entitled to protection. The second company claimed that TRADITIONAL was merely descriptive of the cheese generally–unflavored and natural–and entitled to no protection. After hearing expert testimony, the court found that the mark TRADITIONAL, as applied to feta cheese, was merely descriptive of the cheese and not entitled to protection. Although descriptive marks are sometimes entitled to trademark protection, the court that no be the case.

Plaintiff sued seeking to force a shelter to provide her with the contact information of the people that adopted her cat. Plaintiff returned from a trip to find her cat missing. She was told that the cat had been taken to a shelter. Plaintiff contacted the shelter, less than a week after she discovered the cat missing, only to learn that the shelter had made no effort to locate the plaintiff, in violation of the shelter’s obligations and had given the cat away. The shelter refused to provide the adopter’s contact information to the plaintiff. The court decided that although the plaintiff may have lost her rights to the cat, due to the delay in claiming it, she was entitled to the adopter’s information. The court also found that the shelter did not establish that it had adhered to rules providing for a mandatory waiting period. (5/05)

Employee who stayed on with the company that acquired his past employer, was accused of having a hand in his old employer’s accounting misrepresentations at the time of the acquisition and was told that he was about to be terminated but would receive three months severance. The employee, in reliance on that promise, continued with the acquiring company for a short time longer. Ultimately, he was terminated. In defending its decision not to pay, the acquiring company claimed that the promise was a gift and not enforceable because the employee had given up nothing in exchange for that promise. The court determined that while the employee’s past work for the company was insufficient, as it had happened prior to the promise being made, his work post-notice of his impending termination sufficed, notwithstanding that the value of the severance was disproportionate to the work he did. (4/05)