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OneQwest LLC was hit with a $117 million sanctions award for disobeying a court order and continuing to infringe Qwest Communications International Inc.’s trademark. A Seattle federal court ruled last month that OneQwest was still using Qwest’s famous mark in its business practices and had failed to notify business affiliates and customers of its infringement in violation of a previous court order. The court said OneQwest also failed to provide requested discovery about its business. “This is a precedent-setting cybersquatting case,” said Qwest attorney Breton Bocchieri, a partner at Perkins Coie in Santa Monica. “It’s the largest sanctions award for infringement on the Internet.” U.S. District Judge Barbara Rothstein calculated the award by multiplying OneQwest’s 90,000 members times the $1,300 each paid to join the program. Fort Lauderdale, Fla.-based OneQwest advertises that it markets telecommunications services, including an Internet kiosk that provides Internet access to the public. Under a pyramid, or so-called “multilevel network marketing” plan, OneQwest members solicit others to join the program to obtain additional income. “OneQwest should not be permitted to use the quick and easy profits the Internet affords then avoid liability by failing to document its revenue or produce discovery regarding it,” Rothstein wrote in her Nov. 11 opinion. “When an infringer fails to submit evidence showing deductible expenses ‘then the gross figure is left to stand as the profit factor,’” she said, citing the Ninth Circuit U.S. Court of Appeals 1979 decision, Russel v. Price, 612 F.2d 1131. The court also found that since OneQwest failed to provide discovery about its officers, they are each infringers liable for damages, attorneys fees and other sanctions. The court ruled earlier that there was no question OneQwest was infringing Qwest’s marks. “In deciding to launch its Internet business, OneQwest picked a name strongly associated by the general public with the telecommunication product and services provided by Qwest,” Rothstein said. “OneQwest deliberately adopted the unique, arbitrary and fanciful spelling of ‘Qwest.’” The company did not avoid infringement, she said, by simply inserting the word “one” in front of Qwest. In addition to Bocchieri, the defense team of Denver-based Qwest included Perkins Coie associate William Rava. OneQwest was represented by Richard Morgan, a partner with Miami’s Katz, Barron, Squitero & Faust. — Brenda Sandburg (NOT) HOME FOR THE HOLIDAYS Attorneys at Cooley Godward and Gilead Sciences Inc. spent most of the Thanksgiving holiday carving out details in Gilead’s $464 million purchase of Triangle Pharmaceuticals Inc. Looks like this is becoming an annual tradition. Last year, Gilead General Counsel Gregg Alton and Cooley’s mergers and acquisitions team were working out details of Gilead’s sale of its oncology division to OSI Pharmaceuticals Inc. But Alton and his counterparts at Cooley did spend the holiday with a family of sorts. Alton is a Cooley alum, and Cooley M&A partner, Richard Climan, is his former boss. ” I just really love working with Rick [Climan] and the group,” Alton said. “It feels like old times, in the trenches battling it out. Getting in those three-day marathon negotiations.” Alton, Climan and Cooley partner David Lipkin were indeed involved in intense negotiations three days before Thanksgiving in North Carolina, said Alton. While the deal presented numerous challenges, Alton said that at times staying awake proved the most difficult of tasks. At one point between sessions, Climan crashed in a conference room. Lipkin kept awake by eating the filling out of Oreo cookies, leaving the empty husks strewn about, Alton said. To complicate things further, a massive ice storm hit North Carolina the morning after the companies announced the deal. All of the attorneys made their flights home — except Lipkin, who got stuck in North Carolina for another day. In addition to the heavy-duty negotiating, the deal is structured as a two-step acquisition featuring a cash tender offer followed by a cash merger, which provided many logistical challenges, said Climan. “This deal had elements that many deals don’t have,” he said, “including a convertible $50 million loan made to Triangle.” Although Climan and Alton made it back to California in time to spend Thanksgiving day with their families, Alton spent the day working with only a quick break for some turkey with the family. “I hope this happens again next year,” he said, hopeful the deals will keep coming. “But I’d like to get it done before the holidays, if possible.” Other Cooley attorneys working on the deal: M&A associates Luke Bergstrom, Michelle Bushore and Paul Gibson; compensation and benefits partner Thomas Reicher and associate Alison Wright; antitrust partner Christopher Wright and associate Francis Fryscak; credit finance partner Joseph Scherer and associate Benjamin Bang; and corporate partner Laura Berezin and Julia Vax. The Raleigh, N.C., office of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan represented Triangle. The Atlanta, Ga., office of King & Spalding provided them with outside M&A counsel. Triangle’s in-house attorney, R. Andrew Finkle, also worked on the deal. — Jason Dearen

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