February 2011
Russ August & Kabat Attorneys Recognized as 2011 Southern California Super Lawyers.
Russ August & Kabat is proud of Larry Russ, Richard August, Jules Kabat, David Gabor and Marc Fenster, all of who have been recognized as 2011 Southern California Super Lawyers by the publishers of Los Angeles Magazine. Super Lawyers are the top 5 percent of attorneys in each state, as chosen by their peers and through an independent research. Law & Politics performs the polling, research and selection of Super Lawyers in a process designed to identify lawyers who have attained a high degree of peer recognition and professional achievement. Super Lawyers is a comprehensive and diverse listing of outstanding attorneys, representing a wide range of practice areas, firm sizes and geographic locations.
September 2010
RUSS AUGUST & KABAT VICTORY IN FOREVER 21 FASHION CASE
Russ August & Kabat lawyers Larry C. Russ and Nathan D. Meyer prevailed in a year-long copyright and trade dress case, obtaining summary judgment rejecting claims of copyright infringement and trade dress infringement against Forever 21. The case involved alleged copying of five garments. This is the first case against Forever 21 regarding alleged copying of garments to proceed to final judgment.
As noted in more detail in the attached opinion, the ruling clarified several key aspects of copyright and trade dress law. On the copyright front, the court made clear that (1) a plaintiff has a duty to investigate authorship prior to filing a copyright lawsuit; (2) that designs based upon derivative works need to be disclosed so that the copyright office is aware of what part of the new design is claimed to be original; (3) that the burden of proving originality will be on plaintiff if the copyrighted work is based upon some design in the public domain. This ruling is a blow to copyright companies that troll the marketplace for public domain fabric designs which they copyright and then sue manufacturers and retailers for using these designs. Under this case, future copyright plaintiffs will have to disclose whether their works are based upon the work of third parties and if so, show, when challenged, that such works actually have some original elements. A plaintiff who is not honest with the copyright office in connection with disclosing derivative works will not gain any benefit from a presumption of validity typically associated with a copyright registration.
With respect to trade dress, the Forever 21 case clarified the standards that are going to be applied when a party claims trade dress in connection with a product like a jacket, jeans, or any other consumer product. Express essentially urged the court to adopt a rule that every single item of clothing made by a national retailer is automatically subject to trade dress protection, and that such a plaintiff need only prove identical copying to prevail. Such a rule, however, would have turned the requirements of trade dress law on its head. Instead, the Court rejected Express’ argument and held that copying alone is not relevant to a trade dress claim. In order to prove that a product is deserving of trade dress protection, a plaintiff must establish that the design is source identifying i.e., has secondary meaning. The only way to do that is by actual circumstantial and direct evidence of secondary meaning above and beyond the fact that someone copied the product design identically.
Sep 7, 2010 9:42 AM, By NREI Staff
Serenade Apartment Community in Southern California Sells for $81.5 Million
In a three-way venture, Kennedy Wilson, RECP/Urban Partners and Capri Capital Partners LLC have acquired Serenade, a 400-unit apartment community in Oxnard, Calif. for $81.5 million. The seller was California Urban Investment Partners.
A resort-style complex in Southern California, Serenade is part of RiverPark, a master-planned development. RiverPark covers 702 acres and includes retail options such as Whole Foods, Target and REI in addition to entertainment, offices, schools and 14 parks. Serenade contains 14 residential buildings with a wide variety of one-, two- and three-bedroom residences.
Serenade is a rare, core apartment investment opportunity and a great addition to our portfolio of multifamily properties in California, says Robert Hart, president and CEO of Kennedy Wilson Multifamily Management Group. Our focus has been on supply-constrained, infill West Coast markets, and this acquisition is a perfect fit for our strategy. The property sale closed in early September.
With 21 offices in the United States and Japan and headquartered in Beverly Hills, Calif., Kennedy Wilson (NYSE: KW) is an international real estate investment and services company.
Because development in Ventura County and the city of Oxnard is subject to a number of slow-growth initiatives, future development on the scale of RiverPark is virtually impossible for a minimum of 18 years without voter approval, according to Kennedy Wilson.
Serenade is an institutional-quality, well-designed core asset that is located in a market with significant barriers to entry and will be complementary to the other investments made within our Urban Fund to date, emphasizes Kenneth Lombard, president of Capri Urban Investors and partner at Capri Capital Partners.
Headquartered in Chicago, Capri Capital Partners is the investment manager of Capri Urban Investors LLC, a real estate private equity fund.
This acquisition represents the second major joint venture between Kennedy Wilson and RECP/Urban Partners. We continue to see the excellent rent growth potential as the RiverPark master-planned community and The Collection shopping center reach completion in the years ahead, says Paul Keller, founding principal of Los Angeles-based RECP/Urban Partners.
Urban Partners is a real estate planning, investment, development and management firm with expertise in complex financial structures as well as urban entitlement processes.
Among the many amenities at Serenade are a fully equipped fitness center with cardio theater machines, full sound system, yoga and Pilates floor, plus weight machines. Other amenities include a clubhouse with large-screen TV, a resort-style pool with spa, sundeck, barbecues, an outdoor fire pit and a 1.3-acre public park.
Russ August & Kabat is proud of Larry C. Russ and Michael S. Brophy who authored the article, “Arbitration: Beware of the Unintended Risks”, published in the Los Angeles Daily Journal. When an arbitrator makes a mistake, even clear errors of law, there is little that can be done to fix the decision.
See Article.
July 2010
Russ August & Kabat Attorneys Michael S. Brophy, Irene Y. Lee, Nathan D. Meyer and Andrew D. Weiss Recognized as 2010 Southern California Rising Stars
Rising Stars are the top 2.5% percent of attorneys in each state, under 40 years old and/or who have been practicing for 10 years or less, as chosen by their peers and through an independent research. Law & Politics performs the polling, research and selection of Rising Stars in a process designed to identify lawyers who have attained a high degree of peer recognition and professional achievement. Rising Stars is a comprehensive and diverse listing of outstanding attorneys, representing a wide range of practice areas, firm sizes and geographic locations.
Michael S. Brophy’s practice focuses on probate litigation, intellectual property, entertainment and employment matters. He has extensive experience in trust and estate litigation, copyright, Lanham Act, trade secret, patent, unfair competition, contract, and wrongful termination matters. In addition to litigation matters, his experience includes risk assessment and counseling, alternative dispute resolution, and administrative proceedings. Mr. Brophy has successfully represented a wide range of clients from multinational Fortune 500 companies to small production companies. He has also represented large institutional fiduciaries and individual trustees.
Irene Y. Lee’s practice focuses on intellectual property matters, with an emphasis on patent and trademark enforcement and licensing. As a registered patent attorney licensed to practice before the U.S. Patent and Trademark Office, she brings her patent prosecution experience to strategizing litigation matters and licensing issues. Through patent, trademark and Internet-related litigation, she has enforced intellectual property rights of some of the world’s largest medical device, computer software and apparel companies, as well as small to medium-sized businesses and individuals. She provides preventative counseling through rendering opinions and reviewing potential investments concerning intellectual property. She is fluent in Korean.
Nathan D. Meyer’s practice focuses on general litigation and intellectual property matters, with an emphasis on general business litigation and soft IP. His experience includes copyright, apparel, contract and real estate litigation.
Andrew D. Weiss’ practice focuses on intellectual property and litigation matters, primarily patent litigation. He has represented a variety of clients, including technology, internet, semiconductor, manufacturing and apparel companies. Mr. Weiss also assists clients in non-litigation intellectual property-related matters, such as identifying and patenting inventions. He is a graduate of the University of Southern California Gould School of Law and has an undergraduate degree in Computer Science.
