Hill Country Removes Trademark Lawsuit Filed by Texas Hill Country Barbecue to the Northern District of Texas

Posted on October 16, 2010 by Steven Callahan

Send a cease and desist letter, get sued.  We see that fact pattern a lot, including in Texas Hill Country Barbecue, Inc. v. Hill Country IP, LLC.  Hill Country claims to own a registered trademark for HILL COUNTRY with respect to “services providing food and drink.”  According to Texas Hill Country Barbecue, Hill Country sent it a cease and desist letter claiming exclusive rights in the name “Hill Country” and demanding that Texas Hill Country Barbecue no longer use “Hill Country” in its name.  Hill Country demanded a response (confirming that Texas Hill Country Barbecue would comply with Hill Country’s demand) by September 30, 2010.  In response, Texas Hill Country Barbecue filed a declaratory judgment lawsuit in Texas state court seeking a declaration that it has the common law right to continue to use its name.  On October 13, 2010, Hill Country removed the case to the Northern District of Texas (pdf copy of Texas Hill Country Barbecue’s complaint and Hill Country’s notice of removal available here).

Judge McBryde is presiding over the case.

Texas Hill Country Barbecue is represented by Wesly Maness of Shannon, Gracey, Ratliff & Miller L.L.P.

Hill Country is represented by Jay Rosenberg, Phillip Conley, and Kelly Kleist, all of Conley, Rosenberg & Brenneise LLP; and Philip Hoffman, of Pryor Cashman LLP.

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Judge Robinson

Posted on October 16, 2010 by Steven Callahan

Judge Robinson was born in Dodge City, Kansas.  She graduated from the University of Texas with a B.A. in 1948, and received her law degree from the University of Texas School of Law in 1950, where she was one of only six women in her graduating class.  From 1950 to 1955, she was a Partner with Robinson & Robinson in Amarillo, Texas.

From 1955 to 1958, she served as a Judge on the Potter County Court in Amarillo.  From 1960 to 1972, she served as a Judge on the 108th District Court in Potter County.  Judge Robinson then served, from 1973 to 1979, as a Justice on the Texas Court of Civil Appeals, Seventh Supreme Judicial District.

President Carter appointed Judge Robinson to the Northern District of Texas in 1979.  Her chambers are in Amarillo, Texas.

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Chief Judge Fitzwater

Posted on October 16, 2010 by Steven Callahan

Born in Olney, Maryland, Chief Judge Fitzwater became one of the Northern District of Texas’ Judges in 1986.  He was appointed by President Reagan.

Chief Judge Fitzwater received a B.A. from Baylor University in 1975 and a J.D. from Baylor University School of Law in 1976.  From 1976 to 1978, he worked as an Associate at Vinson & Elkins LLP, and from 1978 to 1982, as an Associate at Rain Harrell Emery Young & Doke.  In 1982, he became Judge of the 298th Judicial District, Dallas County, Texas, a position he held until 1986, when, at the age of 32, he was elevated to the Federal bench.

Since 2007, he has served as Chief Judge of the Northern District of Texas.  Chief Judge Fitzwater’s chambers are in Dallas, Texas.

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Tarrant County College Hit with $230,000 Worth of Attorney’s Fees in Free Speech Case

Posted on October 14, 2010 by Steven Callahan

On October 13, 2010, Judge Means of the Northern District of Texas issued an order in Smith v. Tarrant County College (pdf available here) awarding Plaintiffs over $230,000 in attorney’s fees.  Plaintiffs had sued Tarrant County College under 42 U.S.C. § 1983, alleging that several of TCC’s rules and regulations regarding speech were unconstitutional.  “Specifically, Plaintiffs alleged that TCC’s rules and regulations violated their right to free speech under the First Amendment to the United States Constitution by denying them the ability to conduct ‘empty-holster protests’ [i.e., protests relating to concealed carry laws] and restricting their other efforts at promoting their cause on campus (e.g., handing out leaflets) to a designated ‘free-speech zone.’” 

After conducting a bench trial, Judge Means agreed with Plaintiffs (in large part), and, by a prior order, held that the rules denying Plaintiffs the right to wear empty holsters on campus and to pass out leaflets in classrooms and in hallways were unconstitutional.  Judge Means permanently enjoined defendants from enforcing such rules.  In the instant order, Judge Means awarded Plaintiffs their attorney’s fees as they were the “prevailing parties” in the case.  Judge Means’ order contains an in-depth summary of the law concerning attorney’s fees in the Fifth Circuit, including a detailed explanation of the “lodestar” method for awarding attorney’s fees.

Plaintiffs are represented by Karin Knowles Cagle, of Kirkley & Berryman LLP; David Broiles, of the Law Offices of David Broiles; and Fleming Terrell and Lisa Graybill, of the ACLU Foundation of Texas. 

Tarrant County College is represented by Angela Robinson, of Law Snakard & Gambill.

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Judge Kinkeade Summarily Denies RIM’s Motion to Switch Mediators

Posted on October 14, 2010 by Steven Callahan

On October 12, 2010, Judge Kinkeade denied RIM’s motion to switch mediators in RIM v. Eastman Kodak, a patent infringement case pending in the Northern District of Texas (pdf copy of order here).  RIM sought to use retired Chief Judge Michel, of the United States Court of Appeals for the Federal Circuit, as opposed to the previously-agreed upon Antonio Piazza, as a mediator.  (Apparently, Chief Judge Michel had recently conducted mediation between the parties in a related ITC action.)  Judge Kinkeade denied the motion the same day RIM filed it.

RIM is represented by attorneys with Fish & Richardson, P.C., including Thomas Melsheimer, Thomas Reger II, and Ruffin Cordell; and attorneys with Haynes and Boone LLP, including George Bramblett, Jr., Phillip Philbin, and John Emerson.

Eastman Kodak is represented by attorneys with K&L Gates LLP, including John McDowell, Jr., Benjamin Setnick, Douglas Greenswag, Michael Abernathy, Sanjay Murthy, Brian Arnold, Christopher Hanba, Stephen Everett, Elaine Chow, Curt Holbreich, and Michael Bettinger; and attorneys with Crowell & Moring LLP, including Richard McMillian Jr., Mark Supko, and Kathryn Clune.

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Kenneth Starr Speaks at the Dallas Bar Association’s 2010 Philbin Awards

Posted on October 13, 2010 by Steven Callahan

On Monday, we attended the Dallas Bar Association’s 2010 Philbin Awards, which recognize excellence in legal reporting.  The Philbin Awards began in 1983 to honor the memory of Dallas lawyer Stephen Philbin, who passed away in 1982 from leukemia.

This year’s keynote speaker was Kenneth Starr, former Judge of the United States Court of Appeals for the District of Columbia and current President of Baylor University.  Judge Starr received a standing ovation following his introduction, and gave a speech focused on the importance of the First Amendment.  Judge Starr’s speech highlighted several contemporary issues relating to free speech, including the recent Nobel Peace Prize awarded to imprisoned Chinese dissident Liu Xiaobo (and the Chinese government’s subsequent censorship of news relating to the award), and the Snyder v. Phelps case currently pending before the Supreme Court.

The Philbin Awards were announced by Jason Bloom, of Dallas’ Haynes and Boones.  Notable guests in attendance included Stephen Philbin’s widow and Judge Kinkeade of the Northern District of Texas.

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Who is the Original Mattress Factory?

Posted on October 13, 2010 by Steven Callahan

That’s the question raised by The Original Mattress Factory, Inc.’s false advertising lawsuit filed in the Northern District of Texas on October 11, 2010 against The Mattress Factory (pdf copy of the complaint here).  The Original Mattress Factory claims that, forty years ago, its founder Ron Trzcinski began working at Sealy, eventually rising through the ranks to become Sealy’s CEO.  In 1989, Trzcinski left Sealy to start his own mattress company, which he dubbed The Original Mattress Factory.  According to The Original Mattress Factory, it has become quite successful, earning Consumer Reports’ number one ranking for retail stores and number two ranking for mattress brands.

One of its competitors, according to The Original Mattress Factory, took notice of its success and tried to confuse people into thinking that it is the The Original Mattress Factory.  That competitor is The Mattress Factory. 

The Original Mattress Factory asserts that the Mattress Factory states on its website that it is the “Original Mattress Factory”, displays images on its website of images identical to those displayed on The Original Mattress Factory’s website, uses Google AdWords to cause misleading links to The Mattress Factory’s website to appear when consumers search for The Original Mattress Factory, and has even told consumers that it is The Original Mattress Factory founded by Trzcinski.  The complaint attaches declarations attesting to The Mattress Factory’s alleged misdeeds.

The Original Mattress Factory asserts causes of action for false advertising, unfair competition, and unjust enrichment.

The case is before Judge McBryde.

David Walton and Sawnie McEntire, both of Beirne Maynard & Parsons, and David Movius and Matthew Cavanagh, both of McDonald Hopkins, L.L.C., represent The Original Mattress Factory.

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670 Texans Sleep Uneasy Tonight

Posted on October 11, 2010 by Steven Callahan

A reader alerted us today to the interesting lawsuit of Mick Haig Productions v. Does 1-670, filed in the Northern District of Texas (pdf copy of complaint found here).  Mick Haig is in the adult entertainment business, and filed suit against 670 “John Doe” defendants alleging copyright infringement.  Mick Haig alleges that defendants unlawfully reproduced its copyrighted motion picture “Der Gute Onkel” (“The Good Uncle”) by “means of file transfer technology called BitTorrent.” 

According to Mick Haig, it does not know the names of the 670 Texans, but does know their IP addresses.  It indicated that it will seek discovery as to the “true names” of defendants and amend its complaint accordingly.  In fact, Mick Haig recently filed a motion for leave to take discovery (pdf copy of motion here), which seeks permission to subpoena internet service providers to unearth the names of the 670 defendants. 

In a recent Texas Lawyer article (available here), Mick Haig’s counsel indicated that he brought suit in the Northern District of Texas due to the Fifth Circuit’s holding that a copyright owner need not have a copyright registration in hand prior to filing suit:

You have met the copyright registration requirements just for having applied for copyright,” [Mick Haig’s counsel] says of Texas federal jurisdictional requirements for filing infringement complaints, “where in other jurisdictions, you have to hold the copyright.”

(On a side note, we note that the Supreme Court recently held in Elsevier v. Muchnick that holding a copyright registration is not a jurisdictional requirement to bringing a copyright lawsuit, apparently overruling those circuits that disagreed with the Fifth Circuit.)

Mick Haig’s lawsuit seeks actual damages or statutory damages under the Copyright Act, costs, and attorney’s fees.

But Mick Haig’s counsel states in the Texas Lawyer article that he intends, once he obtains the names of the John Doe defendants, to “send demand letters to the defendants offering to settle out of court for $1,500 to $2,500—with the stipulation that the defendants destroy their copies of the allegedly infringed movie.”  Many defendants may see this as a bargain when compared to finding themselves named in a federal lawsuit for allegedly downloading an adult film. 

The case is before Judge Godbey.

Mick Haig is represented by Evan Stone, of the Law Offices of Evan Stone.

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Judge Furgeson (Retired)

Posted on October 10, 2010 by Steven Callahan

Judge Furgeson (retired) was born in Lubbock, Texas, and appointed to the federal judiciary by President Clinton in 1994.  He is a 1964 graduate of Texas Tech University (B.A.), and a 1967 graduate of the University of Texas School of Law (J.D.).

From 1967 to 1969, Judge Furgeson served our country as a Captain in the United States Army.  He served as a law clerk to Judge Woodward of the Northern District of Texas from 1969 to 1970.  From 1970 to 1994, he practiced with the law firm of Kemp, Smith, Duncan & Hammond.

From 1994 to 2008, Judge Furgeson served as a United States District Court Judge in the Western District of Texas.  In 2008, he assumed senior status, and became one of the judges in the Northern District of Texas.

Judge Furgeson’s chambers were in Dallas, Texas.

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Judge O’Connor

Posted on October 10, 2010 by Steven Callahan

Born in Houston, Texas, Judge O’Connor was appointed to the Northern District of Texas in 2007 by President George W. Bush, after being recommended by Texas Senators Hutchinson and Cornyn.  He graduated from the University of Houston, with a B.S., in 1986, and received his J.D. from South Texas College of Law in 1989, where he graduated summa cum laude (and second in his class) and was a member of the South Texas Law Review.

Following law school, Judge O’Connor was an Associate at Vinson & Elkins, L.L.P. from 1989 to 1994.  From 1994 to 1998, he served as an Assistant District Attorney for the Tarrant County District Attorney’s Office.  Judge O’Connor then became an Assistant United States Attorney for the Northern District of Texas, where he served from 1998 to 2007.

Judge O’Connor also served a four-year “detail” in Washington, D.C.  In 2003, he served as Counsel to the U.S. Senate Judiciary Committee.  He then served, beginning in 2005, as Chief Counsel to the Subcommittee on Immigration, Border Security, and Citizenship.

Judge O’Connor’s chambers are in Dallas.

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