New York Business Litigation Lawyer Blog

The parties sold self inflating Santa dolls and other holiday items. Plaintiff sued alleging that, among other things, defendant infringed a copyright plaintiff held on its Santa doll. Although each doll had features that set them apart, the “stereotypical features common to all Santa Clauses, which depict a jolly, rotund, elderly gentleman, wearing a traditional red suit . . .” were so common and therefore ineligible for copyright registration. The court held that “[w]here the similarity is because both items contain stereotypical features common to the subject matter” those items do not contain sufficient originality to invoke copyright protection and that infringement could therefore not be found.

Patron sued a restaurant after a glass of water exploded in his hand. Under the theories of liability asserted by plaintiff, before it could be found liable, the restaurant must have been found to be in the business of selling water or water glasses and that the restaurant had warranted that the water was fit for consumption. The Court found that, although the water was complimentary, it was not truly free. The water was offered as part of the meal purchased by the plaintiff, which was the business of the restaurant. Following, the Court determined that by serving the water, the restaurant implied that it was fit for consumption and that the container holding the water was fit for its purpose as well. For these reasons, the restaurant’s motion to dismiss was denied.

Stop & Shop Supermarket was found to have violated deceptive practice laws by selling expired food and toiletries. The court found that such practices could mislead a reasonable consumer as to the quality or grade of that product. The court held that allowing those items to remain on the store shelf was an affirmative representation that those items were of normal quality and suitable for use. The store’s argument that each product was date marked and therefore not misleading was rejected by the Court because a reasonable consumer could nonetheless be mislead.

Where a landlord’s rent demands were confusing and contradictory, and unable to be explained, the petition against the tenant was dismissed because it failed to appraise the tenant of the periods for which rent was demanded and the amount due.

The Cuban cigar company which owns the mark COHIBA, sued a U.S. based cigar manufacturer for for selling cigars carrying the name Cohiba. In its detailed decision in which the complexity of the issues were discussed, the court held that even though Cohiba cigars are unavailable in the U.S., the COHIBA mark is sufficiently known in the U.S. market and was known to be in use when the U.S. company began using the Cohiba name, such that allowing another company to sell cigars using the COHIBA mark would probably cause consumer confusion. The U.S. company was ordered to cease sales of the cigar and to turn over all packaging for destruction. (5/04)

Reversing two lower courts, the Appellate Division has recently decided that the Federal law banning unsolicited faxes is constitutional and does not restrict commercial speech because fax communication is only one method of speech and allows an advertiser all other “means of communication” while addressing a substantial governmental interest. The Appellate Court reinstated the cases the lower courts had dismissed and granted the plaintiffs in those case summary judgement as to the issue of liability for violating the fax ban law, remanding the cases for an assessment of damages, including the possibility of triple damages provided for under Federal law.

Legal malpractice claims are unique in that a plaintiff must convince a jury that (i) it would have prevailed in the underlying case (the case which the plaintiff alleges the attorney did not properly litigate) and (ii) the attorney representing the plaintiff in that underlying case in fact committed malpractice in the way the underlying case was handled. In a recent decision, the First Department overruled its past decision and held that in an action alleging legal malpractice, the plaintiff does not have to show that it would have successfully collected against the defendant in the underlying case had it won.

A woman brought suit alleging that she had been sexually assaulted in a spa. One of her claims was for negligent hiring by the spa of the masseur. The spa’s insurance carrier refused to defend against that claim because the policy covered only accidents and other unintended injuries. The Court of Appeals decided that the incident must be viewed from the standpoint of the spa and from that standpoint, the assault was unexpected and deemed an accident under the policy requiring the insurance company to defend and indemnify.

Reversing almost 20 years of precedent, the Court of Appeals has decided that a mother may sue to recover for emotional injuries resulting from medical malpractice which caused a stillborn birth.

A Federal judge recent ruled that New York City may be liable for damages for enforcing a law later found unconstitutional. The statute, one concerning communications made with the intent to annoy or alarm, and used as the basis for an individual’s arrest, was struck down. The court was not persuaded by the City’s argument that it enforced a law which was valid at that time because the law’s constitutional basis had been questioned prior to the City’s enforcement.