Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc. et al

Filing 113

OBJECTIONS to re 101 Proposed Jury Instructions by Akanoc Solutions, Inc., Managed Solutions Group, Inc., Steven Chen. (Lowe, James) (Filed on 3/2/2009)

Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc. et al

Doc. 113

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GAUNTLETT & ASSOCIATES David A. Gauntlett (SBN 96399) James A. Lowe (SBN 214383) Brian S. Edwards (SBN 166258) 18400 Von Karman, Suite 300 Irvine, California 92612 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendants Akanoc Solutions, Inc., Managed Solutions Group, Inc. and Steve Chen

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

LOUIS VUITTON MALLETIER, S.A., Plaintiff, vs. AKANOC SOLUTIONS, INC., et al., Defendants.

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Case No.: C 07-3952 JW (HRL) Hon. James Ware DEFENDANTS' OBJECTIONS TO VUITTON'S PROPOSED JURY INSTRUCTIONS Final Pretrial Conference Date: March 23, 2009 Time: 3:00 p.m. Ctrm: 8, 4th Floor

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DEFENDANTS' OBJECTIONS TO VUITTON'S PROPOSED JURY INSTRUCTIONS ­ C 07-3952 JW

Dockets.Justia.com

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Defendants hereby object to the following proposed jury instructions filed by Plaintiff Louis Vuitton Malletier ("Vuitton"). Jury Instruction 20: Trademark Counterfeiting Elements and Burdens of Proof Defendants object to this jury instruction to the extent that it is not within any Ninth Circuit Model Jury Instruction and because Vuitton misstates the law. Vuitton lists four elements of direct trademark infringement and erroneously instructs the jury to find a verdict for the plaintiff if each element of direct trademark infringement is proven. But Vuitton is not alleging that Defendants are liable for direct trademark infringement; Vuitton is alleging contributory trademark infringement. Defendants refer the Court to their proposed supplemental jury instruction number 1 that discusses the applicable elements of contributory trademark infringement. Jury Instruction 22: Presumption of Likelihood of Confusion When Dealing with Counterfeit Merchandise Defendants object to this jury instruction to the extent that it is not within any Ninth Circuit Model Jury Instruction. This proposed instruction is improper because whether such a presumption of confusion exists is dependent on fact issues to be determined at trial. Defendants refer the Court to their proposed supplemental jury instruction number 1 that discusses the applicable Sleekcraft factors that apply to this case. Jury Instruction 23: Contributory Trademark Counterfeiting Defendants object to this jury instruction to the extent that it is not within any Ninth Circuit Model Jury Instruction and because Vuitton misstates the law especially as it pertains to a computer system operator and an Internet service provider. Defendants refer the Court to their proposed supplemental jury instruction number 1, which discusses the applicable elements of Vuitton's asserted claim for contributory trademark infringement. Jury Instruction 24: Contributory Trademark Counterfeiting: Knowledge Defendants object to this jury instruction to the extent that it is not within any Ninth Circuit Model Jury Instruction. Defendants refer the Court to their proposed supplemental jury instruction number 1, which discusses the knowledge element of contributory trademark infringement. Jury Instruction 25: Contributory Trademark Counterfeiting: Control
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Defendants object to this jury instruction because none of this instruction is within any Ninth Circuit Model Jury Instruction. Defendants refer the Court to their proposed supplemental jury instruction numbers 1, 9 and 11 which discuss the control element of contributory trademark infringement. Jury Instruction 27: Purpose of Trademark Statutory Damages ­ Factors to Consider Defendants object to this jury instruction because none of this instruction is within any Ninth Circuit Model Jury Instruction, and because this is not a proper legal instruction. Jury Instruction 30: Derivative Liability ­ Contributory Copyright Infringement Elements and Burdens of Proof Defendants object to lines 21-23 of Vuitton's proposed jury instruction on the grounds that this portion of the proposed instruction is not within any Ninth Circuit Model Jury Instruction. Defendants refer the Court to their proposed supplemental jury instruction numbers 2 and 7, which discuss the elements of contributory copyright infringement. Jury Instruction 31: Copyright ­ Knowledge Defendants object to this jury instruction because none of this instruction is within any Ninth Circuit Model Jury Instruction. Defendants refer the Court to their proposed supplemental jury

instruction numbers 2 and 7, which discuss the knowledge element of contributory copyright infringement. Jury Instruction 36: Purposes and Functions of Copyright and Statutory Damages Defendants object to this jury instruction on the basis that this is not a legal instruction and is not within any Ninth Circuit model jury instruction. Jury Instruction 37: The Compensation Purpose of Statutory Damages Defendants object to this jury instruction on the basis that this is not a legal instruction and is not within any Ninth Circuit model jury instruction. Jury Instruction 38: The Deterrence Purpose of Statutory Damages Defendants object to this jury instruction on the basis that this is not a legal instruction and is not within any Ninth Circuit model jury instruction. Jury Instruction 39: The Punishment Purpose of Statutory Damages
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Defendants object to this jury instruction on the basis that this is not a legal instruction and is not within any Ninth Circuit model jury instruction. Jury Instruction 42: Domain Names/IP Addresses Defined Defendants object to this jury instruction because the definitions of "domain names" and "IP addresses" are not matters of law and are not within any Ninth Circuit Model Jury Instruction. Defendants also object because Vuitton has based this instruction on unverified entries from the Internet website Wikipedia.com that have no recognized reliability and are of no legal significance. Jury Instruction 43: Pinging Defined Defendants object to this jury instruction because the definition of "pinging" is not a matter of law and is not within any Ninth Circuit Model Jury Instruction. Defendants also object because Vuitton has based this instruction on unverified entries from the Internet website Wikipedia.com that have no recognized reliability and are of no legal significance.

Dated: March 2, , 2008

GAUNTLETT & ASSOCIATES

By:

s/James A. Lowe David A. Gauntlett James A. Lowe Brian S. Edwards

Attorneys for Defendants Akanoc Solutions, Inc., Managed Solutions Group, Inc., and Steve Chen

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