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METALLICA BEATS DECLARATORY JUDGMENT Heavy metal group Metallica has won dismissal of a declaratory action filed against it by a clothing manufacturer in New York federal court. Gianni Sport Ltd. v. Metallica, 00-0937 (Dec. 4). Metallica, which is based in California, sent cease-and-desist letters regarding Gianni Sport Ltd.’s use of the word “Metallica” on hang tags for a line of women’s clothing. Settlement talks followed. Metallica sent a proposed settlement agreement to Gianni Jan. 2, but on Feb. 8, Gianni filed suit in Manhattan federal court for a declaration that it wasn’t infringing on Metallica’s rights. On Feb. 29, Metallica filed an action in the Central District of California for trademark infringement, false designation of origin, unfair competition and dilution. Usually, a plaintiff seeks a declaratory judgment before marketing an allegedly infringing product. In this case, Gianni was already using the “Metallica” mark, so a substantial controversy existed over whether Gianni had infringed Metallica’s rights. But in dismissing Gianni’s New York suit, the district court said, “Gianni has stopped using the term ‘Metallica,’ and there is no suggestion that it intends to resume the use of the word ‘Metallica’ even if it prevails here. Any damages that are due have already accrued. Therefore, Gianni will not ‘avoid the accrual of avoidable damages’ by means of this action.” The court also noted that Gianni had filed the declaratory action in anticipation of Metallica’s California suit, to litigate in Gianni’s New York home forum. In addition, the court stressed that “Gianni filed this action on … the day Metallica’s first settlement offer expired. To allow Gianni’s declaratory judgment action to go forward would penalize Metallica for its attempts at settlement, particularly in light of Gianni’s hasty filing … Gianni provides no justification for its haste in filing immediately following the settlement offer.” The district court then refused to enjoin Metallica from pursuing its California suit. DYLAN WINS ‘INTERNET WAR’ An individual who sued Bob Dylan for copyright infringement was properly sanctioned for posting confidential information obtained during suit discovery on the Internet, a New Jersey federal court has decided. Damiano v. Sony Music Entertainment Inc., 95-4795 (Nov. 13). James Damiano claimed that Dylan’s song “Dignity” infringed on Damiano’s song “Steel Guitars.” The court then placed a blanket protective order on confidential information regarding Dylan’s finances and creative process “because it was likely that plaintiff would publicize depositions and other documents for financial profit.” The court granted summary judgment for defendants Dylan and Sony Music Entertainment, Dylan’s record label, by concluding that “plaintiff’s complaint was a deceptive ‘cut and paste job’ that portrayed plaintiff’s verses as if they were contiguous writings when in fact the verses had been edited, rearranged and titled in a misleading attempt to more closely resemble Dylan’s work for purposes of this litigation.” The court subsequently found Damiano liable for contempt for publishing confidential discovery materials from the case in what the court called Damiano’s “Internet war against Sony and Dylan.” The court issued a second contempt citation after Damiano continued to distribute the materials on the Internet. Damiano filed motions for reconsideration, but the district court first ruled that Damiano had presented no new evidence or intervening change in the law that would warrant overturning the summary judgment ruling for the defendants on the infringement claim. The court next refused to overturn the contempt citations for the same reason, adding “[e]xposure of Sony’s and Dylan’s business practices could threaten their competitiveness and financial position within the recording industry.”

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