Wednesday, July 4, 2018

Statute of limitations for claims under the Copyright Act

What is the limitations period for claims under the Copyright Act?

Copyright Act claims have a three year limitations period, beginning when an infringing act accrues. However, when a defendant has committed successive violations, the separate-accrual rule accompanying the Copyright Act states that each infringing act starts a new limitation period. Each infringement, however, is actionable only within three years of its occurrence. See Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S.Ct. 1962 (2014).

Limitations periods for trademark infringement

I own a business in Texas, and two years ago I discovered that someone else was using my trademark. Is it too late for me to take legal action in Texas?

Probably not. The Lanham Act (15 U.S.C. §§1125 et seq.) creates a civil claim for trademark infringement. Since the Lanham Act does not contain a specific statute of limitations period, the courts look to state law to determine the appropriate statute of limitations. Federal courts have typically dealt with this issue by applying the state’s limitations period for fraud claims to claims under the Lanham Act. Texas is no different. In Texas, the four year statute of limitations for fraud claims (Tex. Civ. Prac. & Rem. Code §16.004) is applied to claims under the Lanham Act. See Tinker, Inc. v. Poteet, 2017 WL 4351304 at *6 (N.D. Tex. Sept. 30, 2017).  This four year period begins when a plaintiff discovers the fraud or could have discovered the fraud by the exercise of reasonable diligence. See Tinker, Inc. v. Poteet, 2017 WL 4351304 at *6 (N.D. Tex. Sept. 30, 2017) citing S.V. v. R.V., 933 S.W.2d 1, 35 (Tex. 1996). Since you discovered this infringement only two years ago, the statute of limitations for your claims under the Lanham Act may not yet have expired.  You may also have claims under the common law. The statute of limitations will depend on the type of claim you have. For trademark-infringement claims, the statute of limitations is four years while the statute of limitations for unfair-competition claims based on trademark infringement is two years. See  Springboards to Education, Inc. v. Scholastic Book Fairs, Inc., 2018 WL 1806500 at *7 (N.D. Tex. April 17,2018) citing Derrick Mfg. Corp. v. Sw. Wire Cloth, Inc., 934 F. Supp. 796, 804-06 (S.D. Tex. 1996) (citing Tex. Civ. Prac. & Rem. Code § 16.003-.004). Unlike claims under the Lanham Act, in which the statute of limitations period begins when a plaintiff discovers or should have discovered the fraud, the statute of limitations period for common-law trademark claims does not accrue until the allegedly wrongful conduct ends. This is because Texas law treats common law trademark-infringement as a continuing tort. See  Springboards to Education, Inc. v. Scholastic Book Fairs, Inc., 2018 WL 1806500 at *7 (N.D. Tex. April 17,2018) citing Horseshoe Bay Resort Sales Co. v. Lake Lyndon B. Johnson Imp. Corp., 53 S.W.3d 799, 812 (Tex. App. – Austin 2001, pet. denied). However, the affirmative defense of laches may still apply.

Access to opponent's computers

If I were involved in a lawsuit in Texas, could I get access to my opponent’s computer’s hard drive?

Maybe. As a threshold to granting access to electronic devices, you (the requesting party) would have to show that the responding party somehow defaulted on its obligation to search its records and produce the data you requested. See In re Shipman, 540 S.W.3d 562, 568-69 (Tex. 2018) citing In re Weekley Homes, L.P., 295 S.W.3d 309, 317 (Tex.2009)(orig. proceeding). Courts do not rely on skepticism or bare allegation that a responding party failed to comply with its discovery duties to grant access to electronic devices, but rather evidence is needed. See In re Shipman, 540 S.W.3d at  568-69.

Contract Interpretation

I have a dispute about the meaning of a written agreement. How might a court in Texas go about resolving such a dispute?

Normally, a court will confine its interpretation to the agreement’s text, but a court’s willingness to consider outside evidence will depend on the facts of each case. Typically, the willingness of a court to consider evidence beyond what is stated directly in an agreement depends on the clarity of the agreement’s wording. If the language of an agreement is written in a way that allows for multiple reasonable interpretations of the text, then the agreement is considered ambiguous and thus, outside (i.e.,extrinsic) evidence may be considered in order to determine the meaning of the agreement’s language. However, if the agreement is worded in a way that gives its contents a direct or certain legal meaning, then it is not considered ambiguous and outside evidence cannot be used to inform the court’s interpretation of the agreement. This decision, concerning the ambiguity of an agreement, is made by the court. Nevertheless, there are limitations to the extent to which extrinsic evidence may be considered when reviewing an agreement, even if it is ruled ambiguous. As previously mentioned, outside evidence that is objective in nature may be admitted if an agreement is deemed to be ambiguous, however, it may only be admitted to determine the parties’ intent as expressed in the agreement, and cannot be relied upon to give the agreement a meaning different from the language it imports or to show what the parties probably meant, or could have meant, something other than what their agreement stated. See URI, Inc. v. Kleberg County, 543 S.W.3d 755 (2018) citing Anglo-Dutch Petrol. Int’l, Inc. v. Greenberg Peden, P.C., 352 S.W.3d 455,451 (Tex. 2011). The “facts and circumstances” in existence at the time an agreement is executed “may be consulted only to inform the meaning of the language the parties chose to effectuate their accord,” and when interpreting an unambiguous agreement or determining whether an ambiguity exists, courts may not consider the parties’ intent beyond the meaning the agreement’s language reasonably suggests when interpreted in context. See URI, Inc. v. Kleberg County, 543 S.W.3d 755, 763 (2018).

Monday, June 25, 2018

Texas court Jurisdiction over non-residents: phone calls and money transfers

I live in California, and I have a friend who lives in Texas that wired a large amount of money to me. Someone sued my friend in Texas claiming that the money did not belong to her. Recently, I learned that I too have been sued by this same person in Texas. I have never traveled to Texas, nor have I lived or worked in Texas. I do not own property in Texas. I did, however, have numerous phone calls with my Texas friend. Can I get out of this Texas lawsuit?

Maybe, but you should hire a Texas attorney to help you, and the outcome will necessarily depend upon the facts of your particular case. Your Texas attorney may find some support in Old Republic National Title Insurance Co. v. Bell, 2018 WL 2449390 (Tex. June 1, 2018), an opinion recently handed down by the Texas Supreme Court. In Old Republic, the Court found that personal jurisdiction was lacking over the non-resident defendant even though there were allegedly hundreds of phone calls between the Texas resident and the non-Texas resident. Additionally, the Court noted that a non-resident defendant’s acceptance of money – a fungible asset – from someone in Texas is generally of negligible significance for purposes of deciding whether a Texas court can exercise jurisdiction over the non-resident defendant.

Sunday, April 3, 2016

When are attorney’s fees recoverable as part of a lawsuit

When are attorney’s fees recoverable as part of a lawsuit?

Generally, Texas follows the “American Rule,” which means that litigants may recover attorney's fees only if specifically provided for by statute or contract.  See, e.g.,  Epps v. Fowler, 351 S.W.3d 862, 865 (Tex.2011); see also  Choice! Power, L.P. v. Feeley, No. 01-15-00821-CV, 2016 WL 4151041, at *8 (Tex. App.–Houston [1st Dist.] Aug. 4, 2016, no pet. h.).

Tuesday, March 29, 2016

Quantum Meruit

If my company provided goods or services to another company, but we did not have a contract, does my company have a claim for getting paid?

Yes, Texas law provides an equitable claim for the recovery of the reasonable value of goods or services that one provides to another when no contract covered the transaction.  This cause of action is called quantum meruit.  “To recover in quantum meruit, a claimant must prove that (1) valuable services were rendered or materials furnished; (2) for the person sought to be charged; (3) and were accepted by the person sought to be charged; (4) under circumstances that reasonably notified the person sought to be charged that the plaintiff, in performing the services or furnishing the materials, expected to be paid by the person sought to be charged.”  Weaver v. Jamar, 383 S.W.3d 805, 811 (Tex. App.– Houston [14th Dist.] 2012, no pet.)(emphasis added).  “To recover in quantum meruit, the plaintiff must show that his efforts were undertaken for the person sought to be charged; it is not enough to merely show that his efforts benefitted the defendant.”  Truly v. Austin, 744 S.W.2d 934, 937 (Tex. 1988).  A party may recover under quantum meruit only when there is no express contract covering the services or materials furnished. Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex.1990).

Thursday, March 17, 2016

Unilateral Mistake: An Equitable Exception to Contract Enforcement

Can I get out of a contract that I entered into by mistake?

Generally, under Texas law, if the other party did not enter into the contract based upon the same mistake (i.e., both parties made the same mistake or mutual mistake) a party cannot avoid its contractual obligations even though it entered into a contract based upon its own mistake.  Texas law, does however, recognize an equitable exception to this general principle. “[E]quitable relief will be granted against a unilateral mistake when the conditions of remediable mistake are present. These conditions generally are: (1) the mistake is of so great a consequence that to enforce the contract as made would be unconscionable; (2) the mistake relates to a material feature of the contract; (3) the mistake must have been made regardless of the exercise of ordinary care; and (4) the parties can be placed in status quo in the equity sense, i. e., rescission must not result in prejudice to the other party except for the loss of his bargain. There may be other circumstances which will govern or influence the extension of relief, such as the acts and extent of knowledge of the parties.” James T. Taylor & Son, Inc. v. Arlington Indep. Sch. Dist., 335 S.W.2d 371, 373 (Tex. 1960).