People seem to be confused on what constitutes a contract.  Often times people think that a contract is a written document signed by the parties  involved.  That is not always the case.  A contract can be written, oral, partially written and partially oral.  It can also be based upon conduct.

The Restatement of Contracts says: “A contract is either express or implied.  An express contract is one, the terms of which are stated in words.  An implied contract is one, the existence and terms of which are manifested by conduct.”

Express and implied-in-fact contracts have the same legal effect, but differ in how they are proved at trial: “‘Contracts may be express or implied. These terms, however, do not denote different kinds of contracts, but have reference to the evidence by which the agreement between the parties is shown. If the agreement is shown by the direct words of the parties, spoken or written, the contract is said to be an express one. But if such agreement can only be shown by the acts and conduct of the parties, interpreted in the light of the subject-matter and of the surrounding circumstances, then the contract is an implied one.’” (Marvin v. Marvin (1976) 18 Cal.3d 660, 678)

_______________________________________

Robert G. Klein, Esq. is a Los Angeles trademark attorney, business litigation attorney lawyer and a Los Angeles business lawyer who specializes in trademark infringement, copyright infringement, business torts, breach of contract actions and unfair competition. He feels it is important to hire a Los Angeles trademark lawyer and a Los Angeles business lawyer if one is involved in litigation in that locale. Robert G. Klein is a prominent Los Angeles business attorney and is available for consultation on matters involving trademark infringement, copyright infringement, breach of contract cases, business torts, fraud, and business law matters. He has successfully obtained many multi-million dollar jury verdicts. Many of Mr. Klein’s court decisions have been published as case authority and he has appeared before the United States Supreme Court for oral argument. Mr. Klein has also published “Consumer List: Trade Secret or Fair Game?”, which is an article published in the Los Angeles Lawyer Magazine. Los Angeles trademark infringement attorney Robert G. Klein can be reached at (213) 996-8508 or visit our web site at http://www.kleinlitigation.com

His emphasis is on trademark infringement, unfair competition and trade secret litigation. Los Angeles trademark infringement lawyer Robert G. Klein has acted as lead counsel in approximately 60 trials.

Posted in Uncategorized  |   No Comments/Questions

Trade dress is a type of unfair competiton where one party copies another’s package, look, or feel of a product or service.  In a recent case involving trade dress, a party filed a complaint claiming trade dress rights in a design on the rear pocket of jeans, but alleged only that the design was unique and nonfunctional.

The court held it lacked factual allegations that the design is not aesthetically or otherwise functional and that it had acquired secondary meaning.  The federal and state claims were dismissed with leave to amend to correct any such pleading deficiency.

_________________________________________

Robert G. Klein, Esq. is a Los Angeles trademark attorney, business litigation attorney lawyer and a Los Angeles business lawyer who specializes in trademark infringement, copyright infringement, business torts, breach of contract actions and unfair competition. He feels it is important to hire a Los Angeles trademark lawyer and a Los Angeles business lawyer if one is involved in litigation in that locale. Robert G. Klein is a prominent Los Angeles business attorney and is available for consultation on matters involving trademark infringement, copyright infringement, breach of contract cases, business torts, fraud, and business law matters. He has successfully obtained many multi-million dollar jury verdicts. Many of Mr. Klein’s court decisions have been published as case authority and he has appeared before the United States Supreme Court for oral argument. Mr. Klein has also published “Consumer List: Trade Secret or Fair Game?”, which is an article published in the Los Angeles Lawyer Magazine. Los Angeles trademark infringement attorney Robert G. Klein can be reached at (213) 996-8508 or visit our web site at http://www.kleinlitigation.com

His emphasis is on trademark infringement, unfair competition and trade secret litigation. Los Angeles trademark infringement lawyer Robert G. Klein has acted as lead counsel in approximately 60 trials.

Posted in Business Litigation, Intellectual Property, Trademark  |   No Comments/Questions

In order to prevail in a copyright infringement case, the plaintiff must show either direct evidence of copying, or “access to the plaintiff’s work” such that copying can be proved circumstantially.

This requires a showing of a “reasonable probability”, not merely a bare possibility, that the infringer had the chance to  view the protected work.  Without direct evidence, circumstantial evidence must show either by establishing a chain of  events linking the plaintiff’s work and the defendant’s access, or a showing that the plaintiff’s work has been widely disseminated.

To state a claim for copyright infringement, a Plaintiff must allege: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” [Feist Publ'ns, Inc. v. Rural Tele. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991)].

The second prong requires a plaintiff to allege that “the infringer had access to plaintiff’s copyrighted work and that the works at issue are substantially similar in their protected elements.” [Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir.2002)].

Even if access is present, a Plaintiff cannot state a claim if substantial similarity is lacking. “No amount of proof of access will suffice to show copying if there are no similarities.”

___________________________________

Robert G. Klein, Esq. is a Los Angeles trademark attorney, business litigation attorney lawyer and a Los Angeles business lawyer who specializes in trademark infringement, copyright infringement, business torts, breach of contract actions and unfair competition. He feels it is important to hire a Los Angeles trademark lawyer and a Los Angeles business lawyer if one is involved in litigation in that locale. Robert G. Klein is a prominent Los Angeles business attorney and is available for consultation on matters involving trademark infringement, copyright infringement, breach of contract cases, business torts, fraud, and business law matters. He has successfully obtained many multi-million dollar jury verdicts. Many of Mr. Klein’s court decisions have been published as case authority and he has appeared before the United States Supreme Court for oral argument. Mr. Klein has also published “Consumer List: Trade Secret or Fair Game?”, which is an article published in the Los Angeles Lawyer Magazine. Los Angeles trademark infringement attorney Robert G. Klein can be reached at (213) 996-8508 or visit our web site at http://www.kleinlitigation.com

His emphasis is on trademark infringement, unfair competition and trade secret litigation. Los Angeles trademark infringement lawyer Robert G. Klein has acted as lead counsel in approximately 60 trials.

Posted in Copyright  |   No Comments/Questions