In other posts on this blog I have written about the ability of a party to recover its attorney's fees under Tex. Bus. Com. Code § 38.001 et seq. as well as through other statutory means. In Texas, the general rule is that the party seeking to recover attorney's fees carries the burden of proof. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991). How do you prove up an attorney's fee claim? Generally either an expert affidavit or testimony will be offered proving up the attorney's fees. Included in this testimony are the factors that must be considered for an attorney fee award to be both necessary and reasonable. An expert witness will examine the hours worked, the amount charged, the type of case and other factors in offering their opinion about the reasonableness of the fee. Can a party recover attorney's fees even if it has agreed to pay its attorneys a contingency fee interest? Yes, but a party cannot simply ask a jury to award a percentage of the recovery. Ving Card A.S. v. Merrimac Hospitality Sys., Inc., 59 S.W.3d 847 (Tex. App.--Fort Worth 2001, review denied). Instead, expert testimony is offered proving up a specific amount. Proving up attorney's fee claims are a regular part of a breach of contract attorney's practice.
The freedom to contract is a principal that is recognized under Texas law. However, there are some limitations on a party's ability to contractually limit certain rights. All legal disputes must be filtered through the rules of evidence. Can parties to a contract change the rules of evidence that will apply in the event a dispute arises between the contracting parties? The answer is most likely "no." Texas, like other states, has a code of evidence which provides rules and limitations on what types of evidence are admissible. For example, the Texas Rules of Evidence have certain provisions relating to the admission of documents. Could a contract limit the rights of one party to introduce into evidence certain types of documents in contravention of the Texas Rules of Evidence? There is Texas case law that provides that "contract language abrogating fundamental rules of evidence is unreasonable, if not void, and will not be enforced." Shultz v. American Nat. Ins. Co., 142 S.W.2d 275, 279 (Tex. Civ. App.--Beaumont 1940, writ dismissed). While a contract may contain certain restrictions and limitations on a parties' rights, Texas law might provide that such contractual language is void. What if a contract is silent about a right? For example, say a contract that is performable and enforceable in Texas does not address the recovery of attorney's fees? Texas law, under Tex. Bus. & Com. Code § 38.0001 et. seq., provides that a prevailing party can recover its attorney's fees for breach of contract. This is a statutory right that a prevailing party has on a breach of contract claim even if the contract sought to be enforced does not have a provision about the recovery of attorney's fees.
What do trademark infringement attorneys dream of when they take a little tiger snooze? Sometimes it is an interesting trademark infringement case that deals with a wildly popular movie, a famous fashion company and some fundamentals in trademark law. Just such a case recently issued an opinion that has many good instructional points in trademark infringement law. See Louis Vuitton Mallatier S.A. v. Warner Brothers Entertainment Inc., Cause No. 11 Civ. 9436 in the United States District Court for the Southern District of New York ("Hangover II "). This trademark infringement case involved the use of Louis Vuitton's trademarks in the movie "The Hangover: Part II." For those familiar with the Hangover movies and characters, you will know that the character Alan deflects criticism in the first movie of his man purse by calling it a "satchel" and grouping himself in the esteemed company of Indiana Jones. In the Hangover II, the gags continue with Alan and the "wolf pack" riffing on a fake Louis Vuitton Keepall travel bag. The court trademark infringement opinion is both entertaining and instructive. The opinion even references lines in the movie. Alan states that, with respect to a counterfeit Louis Vuitton Keepall travel bag, to be "careful that is . . . that is a Lewis Vuitton." Louis Vuitton did not see the humor in the line or the use of the fake bag and filed a lawsuit against Warner Bros. asserting three claims for relief (1) false designation of origin/unfair competition in violation of Section 43(a) of the Lanham Act (i.e. trademark infringement); (2) common law unfair competition; and (3) trademark dilution in violation of N.Y. Gen. Bus. Law 360-l. On June 15, 2012 the Court sided with Warner Bros. and dismissed the lawsuit for failure to state a claim upon which relief can be granted. Louis Vuitton complained that Warner Bros. misrepresented that the knock off bag was a genuine Louis Vuitton product. More specifically, Louis Vuitton argued that Warner Bros. impressmissably used a third-party's bag that allegedly infringed on the Louis Vuitton trademarks. In reviewing Louis Vuitton's Lanham Act claims the court noted that the Lanham Act is inapplicable to "artistic works" as long as the defendant's use of the mark is (1) "artistically relevant" to the work and (2) not "explicating misleading" as to the source or content of the work. Rogers v. Grimaldi, 875 F.2d 994, 999(2d Cir. 1989). In examining the artistic relevance issue, the court noted that the remark came "across as funny because [the character] mispronounces the French "Louis" like the English "Lewis."" The court concluded that the use of the knock-off bag had some artistic relevance to the plot of the Hangover: Part II. The court also concluded that the allegations of confusion were not plausible and that there was no likelihood of confusion that viewers would believe that the fake bag was a real Louis Vuitton bag just because a fictional character made this claim in the context of a fictional movie. While humor rarely translates to written legal opinions, it cannot be said that the United States District Court for the Southern District of New York does not recognize a humorous scene in a movie when it is asked to review it in a trademark infringement claim. This opinion, while entertaining, also highlights the current state of the law on the applicability of trademark infringement to "artistic works."