Midweek Recess: Softee v. Softee, Clapboard Siding and Vicious Noncompetes

Welcome to Law.com’s Midweek Recess, in which we round up some tasty tidbits from the week’s legal news cycle. We’ll be here every Wednesday, so grab a cup of coffee and take a little break. It’s all downhill to the weekend from here.

Softee v. Softee, Part II - You may recall that a few weeks ago, we told you that Mister Softee was suing Master Softee for trademark infringement. Master Softee is (you guessed it!) an ice cream company. It’s run by Dimitrios Tsirkos, a former Mister Softee franchisee who operates look-alike red, white and blue ice cream trucks. How look-alike, you ask? Both Mister Softee and Master Softee’s trucks are emblazoned with a bow-tie-clad ice cream cone, though Mister Softee’s familiar smiling cake cone is replaced with an upstart waffle cone on Master Softee trucks. Mister Softee, started in 1956, claims to offer “The Very Best,” in frozen sweet tweets, while Master Softee calls itself “The World’s Best.”

Perhaps unsurprisingly, Southern District of New York Judge Laura Taylor Swain was unimpressed by the argument that these fake-different differences were a coincidence, and ruled in favor of the venerable Mister Softee. But her ruling hasn’t put the dispute on ice; far from it, this delicious spat looks to be heating up. Though Swain’s order banned Tsirkos from using the Master Softee name and from selling ice cream in any manner within five miles of his old Mister Softee franchise, Master Softee trucks are still rolling. Mister Softee co-owner Jim Conway told the New York Daily News that a private eye hired by the company counted 10 Master Softee trucks on the streets of Manhattan over the weekend, and that the company plans to submit photos of the imposter trucks in action to show the court that Master Softee is ignoring the order. So, stay tuned for the next installment of The Great Ice Cream Fight of 2014!

STFU. - Dear Lawyers: You’ve been using a lot of acronyms, and the D.C. Circuit is not into it. In March, a three judge panel of the court ordered parties in a case to resubmit briefs “that eliminate uncommon acronyms used in their previously filed briefs,” admonishing them that the court’s handbook makes it very clear that acronyms should be avoided.

But not everyone was paying attention that time, and now Word War II is upon us. Judge Laurence Silberman, who was a member of the March panel, filed a concurrence seemingly for the sole purpose of skewering the petitioners’ lawyers for their acronym use.

Silberman wrote a brisk three paragraphs in which he stated that using acronyms “constitutes lousy brief writing.” He added that he found it “dismaying” that one of the attorneys who had written the brief was a professor at Columbia Law School (presumably a denizen of such a shiny, shiny ivory tower ought to have known better). Not content to leave it at that, Silberman added: “We never see [acronyms] in a brief filed by well-skilled appellate specialists. It has been almost a marker, dividing the better lawyers from the rest.”

To all of you acronym users out there: A little ice for that burn?

Biglaw <3 Marriage Equality - The U.S. Supreme Court may not yet have ruled on same-sex marriage, but Biglaw appears to have reached its own verdict, coming down very decidedly on the side of gay and lesbian couples. A Reuters review revealed that 30 large law firms are involved in challenging state marriage bans, while “not a single member of the AmLaw 200 … is defending gay marriage prohibitions.”

You Didn’t Build That, Clapboard Siding Edition – The Second Circuit this week dismissed the claims of an architect, James Zalewski, who contended that two construction companies to which he had sold his drawings of colonial homes violated his copyright by using the drawings after their licenses to them had expired. Judge Richard Wesley, writing for the court, explained that to the extent that the companies copied Zalewski’s designs, they only used elements that are “unprotected” because they “are part of all colonial homes.”

Then, in an unexpectedly lyrical coda to a case that focused on things like closet placement, Wesley added: “Great artists often express themselves through the vocabulary of existing forms. Shakespeare wrote his sonnets; Brahms composed his Hungarian Dancers; and plaintiff designed his colonial houses. Because we must preserve these forms for future artists, neither iambic pentameter, nor European folk motifs, nor clapboard siding are copyrightable.”

Well. Cheer up, Mr. Zalewski. You lost, but you and your siding got lumped in with Shakespeare and Brahms. Not bad.

Attack of the Noncompetes – A surprisingly wide array of businesses are now requiring employees to sign noncompete agreements, The New York Times reports. The clauses are common in fields such as technology, engineering and sales, where employers are looking to protect trade secrets and customer data. These days, though, even hairdressers, yoga instructors and college interns are being asked to sign contracts that bar them from working for rival employers. Lawmakers in Massachusetts recently heard the testimony of the father of a 19-year-old college student who had her job offer as a camp counselor revoked after she unwittingly signed a noncompete during a prior summer job at a neighboring Linx-branded camp. Linx’s founder defended the contract to the Times. “Our intellectual property is the training and fostering of our counselors, which makes for our unique environment,” he said. “It’s much like a tech firm with designers who developed chips: You don’t want those people walking out the door. It’s the same for us.”

Regardless of whether corralling campers = designing microchips (OK, wait, let’s be clear: it doesn’t), let this be a warning to all job-seekers, and particularly to would-be interns. When you get that highly-coveted summer job and you’re in HR on the first day all starry-eyed over your big break, read before you sign.

You’ll thank us when you get to go file papers elsewhere next summer.

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