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Tarnishment of Victoria's Secret Mark, Criminal and ERISA Matters

By FindLaw Staff | Last updated on

In Bloemker v. Laborers' Local 265 Pension Fund, No. 09-3536, the Sixth Circuit faced a challenge to the district court's dismissal of plaintiff's claims in plaintiff's suit against his employer-sponsored ERISA plan an actuary, alleging breach of contractual agreement and other claims, arising from a notice of reduction in his monthly retirement benefits due to an incorrect calculation and requiring him to repay the excess he had received for nearly two years.  

In affirming in part and reversing in part the judgment of the district court, the court first held that the dismissal of plaintiff's equitable estoppel claim is reversed as he has alleged facts that could fulfill the requirements of traditional elements of estoppel.  However, the court affirmed the dismissal of plaintiff's claim for breach of fiduciary duty against the defendants, as well as the plaintiff's contract claim as the district court was correct to conclude that plaintiff cannot recover benefits under section 1132 of ERISA based on a modification of the plan or a separate supplemental contract. 

R.C. Olmstead, Inc. v. CU Interface, LLC, No. 09-3428, concerned a challenge to the district court's grant of summary judgment in favor of the defendant in a copyright and trade secret infringement suit brought by a provider of credit union software against the developer of a competing credit union software. 

In affirming the district court's decision, the court held that the district court did not abuse its broad discretion in refusing to compel additional discovery and plaintiff can point to no errors of fact or law in the court's denial of its employees access to defendant's software, including barring the use of an expert's report because the report failed to comply with the requirements of Fed. Rule of Civ. Proc. 26(a)(2)(B).  Furthermore, district court did not abuse its discretion in declining to impose a sanction on defendant because plaintiff was not left without a remedy for any harm caused by the third party's spoliation.  And lastly, defendant was entitled to summary judgment on the merits on the copyright infringement claims because plaintiff has not produced any direct evidence of copying and indirect evidence of copying was not sufficient to create a fact question as to whether copying occurred; and district court correctly held that plaintiff's end user product was not a trade secret because plaintiff did not take reasonable steps to maintain its secrecy. 

US v. Anderson, No. 08-6152, concerned a a conviction of an owner of a long-term healthcare facility for Medicaid fraud, district court's denial of defendant's motion to dismiss the indictment for duplicity, refusal to instruct the jury with instructions to cure the duplicity and post-trial motion to dismiss the indictment.  In affirming the judgment, the court held that the district court did not err in denying plaintiff's post-trial motion to dismiss the indictment for failure to state an offense as the indictment satisfied both of Hamling's requirements.  Furthermore, defendant's claim that 42 U.S.C. section 1320a-7(b) violates due process by failing to give fair notice of what it prohibits is without merit; and defendant's claim that the indictment is duplicitous is without merit, and thus the district court acted within in discretion in denying the jury instructions requested by defendant to cure the alleged duplicity. 

US v. Curry, No.08-1732, concerned a defendant's motion to modify or reduce his sentence below the bottom of the sentencing guidelines range of 73 months' imprisonment, pursuant to 18 U.S.C. section 3582(c)(2), following his conviction for being a felon in possession of a firearm.  In affirming the district court's denial of the motion, the court held that the district court applied the correct legal standard when it concluded that it had the discretion to entertain defendant's motion on the merits, and under the circumstances, the district court did not abuse its discretion in denying the defendant's motion for further modification of his sentence. 

US v. Lewis, No. 09-1162, concerned a challenge to a conviction of defendant for transporting a visual depiction of a minor engaged in sexually explicit conduct and sentenced to 151 months' imprisonment.  In affirming the conviction and the sentence, the court held that defendant's ineffective assistance of counsel claim is dismissed as facts are not sufficiently developed in the record for proper review.  Also, district court's denial of defendant's motion for a second ends of justice continuance as his motion to suppress the evidence seized pursuant to the authorized search is without merit, and thus, defendant cannot show that he was prejudiced by the denial of continuance so that he could file his suppression motion. Lastly, district court's application of a two-level sentence enhancement for his use of a computer to transmit the illicit images is affirmed. 

V Secret Catalogue, Inc. v. Victoria's Secret Stores, Inc., No. 08-5793, concerned Victoria's Secret's trademark "dilution by tarnishment" suit against a small retail store that sells sex toys and other sexually oriented products, pursuant to the Trademark Dilution Revision Act of 2006.  In affirming the judgment of the district court in favor of the plaintiff, the court held that the new Act creates a kind of a rebuttable presumption, or at least a very strong inference, that a new mark used to sell sex related products is likely to tarnish a famous mark if there is a clear semantic association between the two, and here, that presumption has not been rebutted. 

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