Weather Underground, Incorporated v. Navigation Catalyst Systems, Incorporated et al

Filing 296

Proposed Jury Instructions by Connexus Corporation, Firstlook, Incorporated, Navigation Catalyst Systems, Incorporated (Delgado, William)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN

THE WEATHER UNDERGROUND, INC.,
a Michigan corporation,
Plaintiff,
Case No. 2:09-CV-10756
Hon. Marianne O. Battani

vs.
NAVIGATION CATALYST SYSTEMS, INC.,
a Delaware corporation; CONNEXUS CORP.,
a Delaware corporation; FIRSTLOOK, INC.,
a Delaware corporation; and EPIC MEDIA
GROUP, INC., a Delaware corporation,

Defendants.
______________________________________________________________________
Enrico Schaefer (P43506)
Brian A. Hall (P70865)
TRAVERSE LEGAL, PLC
810 Cottageview Drive, Unit G-20
Traverse City, MI 49686
231-932-0411
[e-mail]
[e-mail]
Lead Attorneys for Plaintiff

William A. Delgado
WILLENKEN WILSON LOH & DELGADO
LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

Nicholas J. Stasevich (P41896)
Benjamin K. Steffans (P69712)
Anthony P. Patti (P43729)
BUTZEL LONG, P.C.
HOOPER HATHAWAY, PC
150 West Jefferson, Suite 100
126 South Main Street
Detroit, MI 48226
Ann Arbor, MI 48104
[phone]
734-662-4426
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff
Local Counsel for Defendants
______________________________________________________________________
DEFENDANTS CONNEXUS CORPORATION, FIRSTLOOK, INC., AND
NAVIGATION CATALYST SYSTEMS, INC.’S PROPOSED JURY INSTRUCTIONS

125591.1

PROPOSED JURY INSTRUCTIONS
Local Rule 16.4(d) requires that the parties serve and file their proposed jury instructions
on the first day of trial. Defendants Connexus Corporation, Firstlook, Inc., and Navigation
Catalyst Systems, Inc. (collectively “Defendants”) hereby incorporate the jury instructions
agreed upon by the parties and Defendants’ proposed jury instructions that were submitted to the
Court in the Bench Book filed on February 28, 2012. See Docket No. 269, Exs. 7, 9.
In addition those jury instructions submitted with the Bench Book , Defendants request
one additional instruction as indicated below.
//
//

1
125591.1

DEFENDANTS’ PROPOSED INSTRUCTION NO. 23
Throughout the trial, you have heard evidence of trademarks owned by third parties that
are not involved in this specific lawsuit. In the event, you elect to award damages, the damages
you award may only relate to the Plaintiff in this lawsuit. You may not award this particular
plaintiff any damages with respect to third parties who may bring lawsuits of their own.
Authority:
Plaintiff has indicated that it intends to introduce evidence of domain names registered by
Defendants which allegedly violate the trademark rights of third parties that are not in this
lawsuit. Such evidence creates the possibility (if not probability) that a damages award in this
matter, if any, would incorporate damages related to these third parties.
In Philip Morris U.S.A. v. Williams, 127 S. Ct. 1057, the Supreme Court held that
damages awarded to compensate for alleged misconduct to non-parties violates the Due Process
Clause of the Constitution. For that reason, where the evidence refers to non-parties, the Court
must, upon request, issue a jury instruction which protects against an award of damages related
to non-parties. Defendants maintain that the rationale in Williams is equally applicable to cases
involving statutory damages and respectfully submit that the Court issue this instruction to
protect against a violation of due process.
Respectfully Submitted,
Dated: May 29, 2012

/s/William A. Delgado
William A. Delgado
WILLENKEN WILSON LOH & DELGADO LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants
2

125591.1

CERTIFICATE OF SERVICE
I hereby certify that on May 29, 2012, I electronically filed the foregoing paper
with the Court using the ECF system which will send notification of such filing to the
following:
Enrico Schaefer (P43506)
Brian A. Hall (P70865)
TRAVERSE LEGAL, PLC
810 Cottageview Drive, Unit G-20
Traverse City, MI 49686
231-932-0411
[e-mail]
[e-mail]
Lead Attorneys for Plaintiff

Nicholas J. Stasevich (P41896)
Benjamin K. Steffans (P69712)
BUTZEL LONG, P.C.
150 West Jefferson, Suite 100
Detroit, MI 48226
[phone]
[e-mail]
[e-mail]
Local Counsel for Defendants

Anthony P. Patti (P43729)
HOOPER HATHAWAY, PC
126 South Main Street
Ann Arbor, MI 48104
734-662-4426
[e-mail]
Attorneys for Plaintiff

William A. Delgado
WILLENKEN WILSON LOH & DELGADO
LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

/s/William A. Delgado
William A. Delgado
WILLENKEN WILSON LOH & DELGADO LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

3
125591.1