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INTELLECTUAL PROPERTY LITIGATION GROWS EXPONENTIALLY
In the five year period between 2002 and 2007, the number of IP litigation cases in the United States has nearly tripled. This increase in growth ranges across all categories of IP from trademarks and patents to copyrights and trade secrets. Much
of this increased litigation activity can be traced to the following
fundamental changes: First, the value and importance of intellectual
property is growing in literally every corporate entity in our economy. Second,
the laws governing intellectual property are changing and expanding,
and becoming increasingly complex and the causes of action in
litigation are also expanding.
EXPERT SELECTION: ONE EXPERT OR TWO?
It
has been our universal experience that in those cases where the
litigator has thought that two experts were better than one, that
litigator has most often proved himself or herself wrong during the
course of the litigation. If one is looking for
true expert advice on intellectual property valuation and damages, the
expert hired to cover the valuation and damages issues also should be
able to cover all the other IP issues – assuming they are a true IP
expert. What most often happens when the duties
are split between a so-called damages expert and a so-called IP expert
is that the sum of the two is less than the whole (in a mixed metaphor).
For example, we recently participated in a trademark and copyright infringement lawsuit case in the state of Washington. The
so-called damages expert (hired by the client’s attorneys against our
advice) misunderstood the case so greatly that it caused substantial
harm to the client, and, more importantly, partially undermined our
report on the issues of trademark usage, licensing, and customs and
practices. Clearly the client was worse off for
having two witnesses and even the litigators were gracious enough to
admit this at the conclusion of the deposition phase of the process. Where
possible, then, a single witness covering the IP and damages issues is
always a preferable circumstance than using two or more witnesses.
Expert Witness:
We provide expertise and testimony regarding a wide range of business and intellectual property issues. Our principals are Daubert qualified experts.
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SERVICES
Expert Witness:
We provide expertise and testimony regarding a wide range of business and intellectual property issues. Our principals are Daubert qualified experts.
Value and Damages:
CONSOR possesses exceptional experience assessing damages in intellectual property litigation for a wide range of industries. We apply traditional and proprietary valuation methodologies, which we developed over the past 20 years: the VALMATRIX® and the BVEQtm methodologies.
Infringement and Confusion:
CONSOR
works with survey data as well as a simple yet sophisticated technique,
the confusion measurement matrix analysis, which analyzes all the
business and marketplace issues affecting a confusion case.
Customs and Practices:
We
advise on practical, market-based business issues and on the customs
and practices, management and licensing of intellectual property, as
well as issues involved in the disposition of intellectual property.
Bankruptcy:
Our
expertise is utilized in bankruptcy and reorganization where
intellectual property is an important component of value and in
inter-company transfer situations where intellectual property is being
moved from one entity to another, and must be done so at market value.
AREAS OF EXPERTISE
Media & Entertainment:
We
establish intellectual property values for media and other
entertainment properties, and for not-for-profit organizations that
impact a broad range of people, often on a global basis.
Patents & Technology:
Our
technology group specializes in valuations, portfolio management, and
litigation support. We have also pioneered a technology
portfolio management system and technology factor analysis.
Electronic, Internet & Software:
We
continue to be at the forefront of digital asset licensing,
establishing global royalty rates and values for software, electronic,
and Internet assets.
Celebrities & Estates:
Increasingly,
celebrities and their estates find great value in their name
and likeness and associated intangible assets. We establish compensation and values for the use of those images.
Trademark & Corporate Brand Assets:
We have unmatched proficiency in trademark and brand valuation, royalty rates, licensing, and brand extension strategies. We often provide deal management and take the lead in negotiations of complex licensing agreements.
Sports & Events:
CONSOR
pioneered the licensing and valuation of major events beginning with
the Calgary Olympics in 1988, to the World Cup of 2006 and 2010.
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PAST PROJECTS
C.J. JACKSON III P/K/A 50 CENT V> TACO BELL CORP., Case No. 08-06545, United States District Court, Southern District of New York; Expert Report on Rights of Publicity Damages, False Endorsement (Litigation pending – July 2009).
WOODY ALLEN V. AMERICAN APPAREL, INC.. Case No. 08 CV–3179, United States District Court, Southern District of New York; Expert Report on Rights of Publicity Damages, False Endorsement (Case Settled – May 2009).
IRONWOOD CAPITAL LTD. V. IRONWOOD CAPITAL MANAGEMENT ET AL.- Case No. 07 CV 1624, United States District Court, District of Connecticut; Expert Report on Trademark Infringement Damages (litigation pending, April -- 2009).
SPANSKI ENTERPRISES, INC. ET AL. V. TELEWIZJA POLSKA, S.A. ET AL. – Case No. 07-CV-0930, United States District Court, Southern District of New York; Expert Report on Intellectual Property customs, practices, valuation, and damages (litigation pending).
SOCIÉTÉ DES BAINS DE MER ET DU CERCLE DES ETRANGERS A MONACO V. PLAYSHARE, ET AL. Case No. 07-CV-4802, United States District Court, Southern District of New York; Expert Report on Infringement Damages (litigation pending).
ADIDAS AMERICA, INC. ET AL v. PAYLESS SHOESOURCE, INC., Civil Document for Case No: 01-1655-KI, United States District Court (District of Oregon); expert report regarding establishment of royalty rates for the use of trademark and trade dress, calculations of royalty rate payments, lost profits, and damages (April 2008).
ADJUSTMENT OF RATES AND TERMS FOR PREEXISTING SUBSCRIPTION SERVICES AND SATELLITE DIGITAL AUDIO RADIO SERVICES,
Docket No. 2006-1 CRB DSTRA, Copyright Royalty Board, Library of
Congress, Washington, D.C. expert rebuttal report and testimony
regarding the apportionment of compensation paid to marquee celebrities
for brand value, endorsement value and exclusivity value components
(August - October 2007).
LOUIS VUITTON MALLETIER, v. DOONEY & BOURKE, INC.,
Case No. 04 Civ. 2990, United States District Court, Southern District
of New York expert report regarding trademark infringement and dilution
damages (litigation pending).
ARONCHICK / INKINE v. WOLF BLOCK, ET AL., Court of Common Pleas, Philadelphia County, PA. Civil
Action 0712 (Nov. Term, 2004) expert report regarding customs and
practices and economic damages stemming from lost patent royalties in
the pharmaceutical industry (case settled).
WORLD TRIATHLON CORPORATION, INC. v. DAWN SYNDICATED PRODUCTIONS ET AL., Case No. 8:05
CV-983-T27 EAJ, United States District Court Middle District of
Florida, Tampa Division expert report related to intellectual property
customs and practices, valuation, and calculation of damages
specifically federal trademark infringement, false designation of
origin and dilution, as well as Florida common law trademark
infringement (litigation pending).
CYCLONE USA, INC. v. LL&C DEALER SERVICES, LLC,
Docket No. CV-03-0992 WMB (JWJx), United States District Court for the
Central District of California expert witness testimony and report
regarding calculation of damages (February 2006).
RICHARD BACH AND RUSSELL MUNSON v. FOREVER LIVING PRODUCTS U.S., INC., ET AL., Case No. C05-0970P, Second Amended Complaint, U.S. District Court for Western District of Washington at Seattle ex of publicity (July 2005).
CACHE LA POUDRE FEEDS, LLC v. LAND O’LAKES, INC. ET AL.
Civil Action No. 04-D-329 (CBS) U.S. District Court District of
Colorado rebuttal report designed to identify and quantify errors made
in estimating damages resulting from the alleged infringing actions of
Defendant, specifically addressing the reasonable royalty
determination, and the potential award of damages for the cost of
corrective advertising (July 2005).
LAWRENCE PETER BERRA AKA YOGI BERRA v. TURNER BROADCASTING SYSTEM, INC.,
1:05-cv-02233-RJH - NY Supreme Court No. 05/600339, Supreme Court of
the State of New York, County of New York expert report regarding
calculation of damages stemming from the valuation of celebrity rights
and rights of publicity (July 2005).
KEN’S FOODS, INC. v. KEN’S STEAK HOUSE, INC.,
Case No. 01-CV-11878-NG, United States District Court District of
Massachusetts expert report regarding trademark infringement and
calculation of brand value and damages (December 2004).
PARKS v. LAFACE RECORDS ET AL, Civil Docket for Case No. 1:04 mi-00261, United States
District Court, Northern District of Georgia expert report regarding
valuation of celebrity rights and images and calculation of damages
(December 2004).
MONSTER CABLE PRODUCTS, INC. v. DISCOVERY COMMUNICATIONS, INC.,
Civil Action No. 03-CV-3250 (WHA), United States District Court for the
Northern Districit of California expert report regarding calculation of
damages (August 2004).
CORBIS CORPORATION v. AMAZON.COM, INC. ET AL.,
Case No. CV03-1415L, United States District Court Western District of
Washington expert report regarding royalty rates, rights clearance
fees, dilution of licensability, lost revenue, and calculation of
damages (June 2004).
AMERIQUEST v. AMERICREST (OKLAHOMA), Case No. L7526-0585, United States District Court Western District of Oklahoma
expert report regarding trademark infringement, false designation of
origin, unfair competition, trademark dilution, and calculation of
damages (March 2004).
PAUL FRANK INDUSTRIES, INC. v. zeros & ones, inC., and DOES 1 through 15, inclusive,
Case No. SA CV01-582DOC(ANx), United States District Court for the
Central District of California expert report regarding customs and
practices relating to agreements for use of intellectual property and
calculation of damages (April 2002).
YKK CORPORATION and YKK (U.S.A.), INC. v. jungwoo zipper co., ltd., and ypp (u.S.A.), inc., Civil
Action No. C00-05731 FMC (RCx), United States District Court for the
Central District of California expert report regarding likelihood of
confusion, trademark dilution, and calculation of damages (January
2002).
SAN FRANCISCO NETWORK v. Salisbury Manufacturing corporation fab industries, Inc. et al, Civil
Action No. C99-5022 CRB (JL), United States District Court for the
Northern District of California expert report regarding licensing
versus franchise agreements and infringement (December 2001).
CREATIVE COMPUTING d/b/a INTERNET TRUCKSTOP v. GETLOADED.COM LLC AND/OR CODIFIED CORPORATION, AND JACK C. MARTIN,
Civil Action No. CIV 00-476-S-BLW, United States District Court for the
District of Idaho expert report regarding valuation and infringement
(November 2001).
AMAZON.COM, INC., a Delaware Corporation v. VON ERIC LERNER KALAYDJIAN, d/b/a/ AMAZON COSMETICS AND TAN PRODUCTS,
Civil Action No. CV 01-02041 R (AIJx), United States District Court
Central District of California expert report regarding trademark
infringement (October 2001).
HEARTS ON FIRE COMPANY v. ALEXANDER M. WALDMAN DIAMOND COMPANY, INC., Civil
Action No. 01 CV 4628(HB), United States District Court for the
Southern District of New York expert report regarding confusion and
dilution of trademark (October 2001).
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