Justia Federal District Court Opinions

FED.R.APP.P. 4(a)(2) provides that such a notice of appeal "shall be treated as filed after such entry [of judgment] and on the day thereof."

28 U.S.C. Sec. 1338(a):

"Patents, plant variety protection, copyrights, trademarks, and unfair competition

"(a) The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trade-marks. Such jurisdiction shall be exclusive of the courts of the states in patent, plant variety protection and copyright cases."

28 U.S.C. Sec. 1295(a)(1):

"Jurisdiction of the United States Court of Appeals for the Federal Circuit

"(a) The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction--

"(1) of an appeal from a final decision of a district court of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, the District Court of the Virgin Islands, or the District Court for the Northern Mariana Islands, if the jurisdiction of that court was based, in whole or in part, on section 1338 of this title, except that a case involving a claim arising under any Act of Congress relating to copyrights or trademarks and no other claims under section 1338(a) shall be governed by sections 1291, 1292, and 1294 of this title;

...."

Cf. Jackson Jordon, Inc. v. Plasser American Corp., 725 F.2d 1373, 220 USPQ 945 (Fed.Cir.1984) (order deeming both cross-appeals and separate appeals as appeals by "any other party [than appellant]" for purposes of determining timeliness under FED.R.APP.P. 4(a)(3))

For the legislative history of Pub.L. No. 97-164, see generally S.REP. No. 97-275, 97th Cong., 2d Sess. 18-20, reprinted in 1982 U.S.CODE CONG. & AD.NEWS 11, 28-30

Similarly, such a course was adopted in relation to appeals from district courts of the disqualification of attorneys, a purely procedural matter. Panduit Corp. v. All States Plastic Mfg. Co., 744 F.2d 1564, 1572, 1575, 223 USPQ 465, 469-72 (Fed.Cir.1984) (per curiam); In re International Medical Prosthetics Research Assocs., Inc., 739 F.2d 618, 620-21 (Fed.Cir.1984). In relation to the correct choice of law pertinent to substantive matters see American Hoist & Derrick Co. v. Sowa & Sons, 725 F.2d 1350, 1366-67, 220 USPQ 763, 775-76 (Fed.Cir.1984) (applying the law of the originating regional circuit regarding the necessity of showing relevant market to establish a section 2 Sherman Act violation)

See Appendix A for a synopsis of the federal trademark and service mark registrations to Bandag in evidence in this case

See 15 U.S.C. Sec. 1065 (1982)

The full text of the letter follows with bracketed material added--

"It has come to my attention that you are considering buying some used BANDAG equipment from a former Bandag dealer.

"I thought it would be helpful for you to know that Bandag, Incorporated supports its franchisees by maintaining the integrity of our trademark and the products that it represents.

"For your information I am enclosing a copy of the Court decision in the Bandag, Incorporated v. Lewis General Tires, Incorporated [216 USPQ 81 (W.D.N.C.1981) ] law suit which you may find of interest in understanding our patent and trademark protection."

Although Champion arose and was decided on the basis of the Trade-Mark Act of 1905, predecessor to the currently applicable Lanham Trademark Act of 1946, the case remains a leading decision regarding the right to recovery under section 35 of the Lanham Act, 15 U.S.C. Sec. 1117. "[T]he legislative history of Section 35 does not demonstrate an intention to alter the basic rules of recovery that existed under the 1905 Act. The principal changes effected by the Lanham Act in the rules of recovery were: first, to require that awards of increased damages be compensatory, not punitive, and, second, to allow the courts discretion to increase or decrease awards based on the infringer's profits." Koelemay, Monetary Relief for Trademark Infringement Under the Lanham Act, 72 TRADE-MARK REP. 458, 487 (1982)

Holiday Inns, in contrast to the present case, involved a terminated franchisee of plaintiff which after termination continued to infringe plaintiff's mark in a most willful fashion "until at least the date of trial." 493 F.Supp. at 1027, 212 USPQ at 208

See supra note 4

By way of illustration, Claim 1, the broadest of the two independent claims, can be found in Appendix B

The following is listed on the invoice of TRI describing the equipment sold to Bolser:

See supra note 13

Bolser has pointed out that, while rim modification could have rendered subsequent use of the purchased equipment free from charges of infringing the Carver patent, such a use may have resulted in subjecting Bolser instead to charges of infringing the Barnett patent. Such a possibility does not negate rim modification as a possible alternative to avoiding the infringement charged here

The president of Bandag licensee Phelps testified to the June 1981 package sale of equipment from its Port Angeles facility to a Bandag licensee located in the Philippines. The equipment had been sitting idle for two and one-half years