Thursday, August 24, 2006

The Tenth Circuit's Harold Department Stores

LBK in Houston pointed out that yesterday's posting on an August 7th 10th Circuit case actually involved a quotation from an expert on economics in an earlier 10th Circuit case, Harolds Stores, Inc. v. Dillard, Inc., 82 F.3d 1533 (10th Cir. 1996). Harold's must have been a wild case, since in addition to the aforementioned economics testimony, the Tenth Circuit affirmed a jury award of lost goodwill as a form of actual damages under the Copyright Act.

The award appears to have been motivated by unobjected-to testimony from a company official that identifiable dollar losses occurred from lost goodwill and by a survey in which respondents (undergraduate women shopping for skirts) indicated that when they saw infringing goods at defendant that they thought unique to plaintiff, they were less likely to shop at plaintiff in the future for other goods. No reason for this alleged inclination is given, though, and certainly one important possibility, price, has nothing to do with lost goodwill.

To the extent the survey was legitimate (a decidedly unlikely proposition), it goes to violation of the trademark laws, not copyright.

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