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Kendall-Jackson Winery v. E. & J. Gallo Winery N.D. Cal. (Walker, J.), 150 F.3d 1042 (9 th Cir. 1998) Paul W. Reidl Law Office of Paul W. Reidl Modesto, California www.reidllaw.com twitter @tmguy © 2011. Paul W. Reidl. All Rights Reserved.
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Straw Poll? © 2011. Paul W. Reidl.
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Background Family feud Gallo’s entry into the premium market Gallo family succession Computerized shelf sets IP litigation was simply the means to an end © 2011. Paul W. Reidl. All Rights Reserved.
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Background Extensive PR review of the Complaint and PR campaign Tremendous media coverage designed to resurrect dirt and undo Gallo image advertising (C) 2011. Paul W. Reidl. All Rights Reserved.
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Settlement Discussions? Are you kidding me? This was the modern-day equivalent of Gladiator; only one would be left standing That’s why both sides had plaintiff’s trial lawyers as their lead counsel The Judge understood this and never pushed for a settlement conference or ADR (C) 2010. Paul W. Reidl. All Rights Reserved.
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Trademark Issue (C) 2011. Paul W. Reidl. All Rights Reserved.
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Trademark Issue Motion to Dismiss - Denied Summary Judgment – Granted Trial – Tried TM case with no instructions Appeal – Grape leaves are generic © 2011. Paul W. Reidl. All Rights Reserved.
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Trade Dress Issue (C) 2011. Paul W. Reidl. All Rights Reserved. Burgundy/Bordeaux bottle Flanged Top Cigar Band Wrapper White label Grape Leaf
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Trade Dress Issue Motion to Dismiss Summary Judgment: “distinctive leaf design” Reconsideration: 0+0+0+0+0 = 1 Trial: 25 bottles, M. Mondavi on the flange, admissions from their witnesses, all about the leaf = “California look” Appeal: sufficient evidence for jury © 2011. Paul W. Reidl. All Rights Reserved.
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Survey Issues Gallo: Eveready design – no confusion KJ: Squirt survey – 30% confusion Initial Pilot with Mondavi control – 0% Squirt without a control Motion in Limine granted Daubert hearing; admitted Judge trashed it on the State law claims © 2011. Paul W. Reidl. All Rights Reserved.
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Consumer Research Issues Claim of copying in the Complaint Industrial espionage Research done during study of entering premium market; “KJ leaf” Cornerstone of the “intent” case But even if true there was a major problem with the KJ case ………. © 2011. Paul W. Reidl. All Rights Reserved.
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“Look at but don’t copy Turning Leaf” (C) 2011. Paul W. Reidl. All Rights Reserved.
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Consumer Research Jury research: avoid Soccer Mom’s Jury outcome: the Soccer Mom was the holdout, and she was adamant that Gallo had been unethical because it studied the KJ label therefore they must have copied it. © 2011. Paul W. Reidl. All Rights Reserved.
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Laches Pre-launch knowledge “Wait and watch” Filed 8 months after knowledge By that time Turning Leaf was #1 in the category Judge (state law claims): laches 9 th Circuit: moot (C) 2010. Paul W. Reidl. All Rights Reserved.
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Privilege Waiver Prior in-house review and memo KJ Expert – retired TTAB judge “The review was not up to standards: no interviews, no research, no survey, should always use outside counsel because in house cannot be impartial” “reasonable people can disagree on inherent distinctiveness” (C) 2011. Paul W. Reidl. All Rights Reserved.
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Other Issues Damages were excluded No Pre-Trial Order Clash of lawyering cultures David Gallo passing away before trial Plaintiff’s “Victory Celebration” Malicious prosecution action (C) 2011. Paul W. Reidl. All Rights Reserved.
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Thank You! 3300 Wycliffe Drive Modesto, California 95355 (209) 526-1586 reidl@sbcglobal.net Twitter @ tmguy www.reidllaw.com © 2011. Paul W. Reidl. All Rights Reserved.
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