Ever find yourself wondering what happened in that Omega v. Costco "copyright misuse" appeal to the 9th Circuit?

Posted by Charles Colman

Remember that fascinating LAW OF FASHION post from November 2011, "Following a Supreme Court deadlock, Costco beats Omega on remand by invoking the equitable doctrine of 'copyright misuse'"?  Right, that one.  I knew you would.



I bet that you, like LOF, recently found yourself wondering what the *&#% ever happened to the appeal in that case.  After all, brand owners and legal professionals alike need a pronouncement from the Ninth Circuit on this important issue, even if this writer proved a tad too busy to assist the court with some planned research.  (He'll likely pick it up again once he starts his job at NYU Law School later this year.)  And even though the Supreme Court is mulling over related issues in Kirtsaeng v. John Wiley & Sons, Inc., the ruling in that case probably won't address the "copyright misuse" question squarely posed by the latest Omega appeal.


Perhaps you had forgotten about the case until now, which would be understandable if you weren't giving a lecture this weekend on "parallel imports," a/k/a "gray goods," a/k/a "grey goods" -- not to be confused with "greige goods," a/k/a "gray goods."

(Uh-oh, it seems Ron "no relation, not a typo" Coleman's wordplay is rubbing off on me.)



So what has happened in the Omega copyright misuse appeal?  Well, a lot -- and not much.  I've posted the current docket in the case on Scribd (and embedded it below.)  You'll also find the parties' and amici's briefs to the Ninth Circuit on Scribd, posted here, here, here, and here.  This material (along with my talk on Saturday, if you'll be there) should tide you over until the appellate court finally issues a decision in this case.  Let's just hope the Ninth Circuit isn't waiting for the Supreme Court's Kirtsaeng ruling, because who knows when that might happen...


[UPDATE (2/15/13): The notable IP scholar, Professor Tyler Ochoa, comments on LinkedIn: "Last brief was filed on September 27, 2012. Average wait time from briefing to oral argument is nine to twelve months (Ninth Circuit FAQs). So, assuming the case doesn't settle, oral argument likely will occur somewhere between the end of July 2013 and the end of September 2013. Most decisions are then issued within three months. So, if things go well, we may have an answer by the end of the calendar year!"]





[Like everything on LAW OF FASHION, this post is for entertainment and informational purposes only, and does not constitute legal advice or create an attorney-client relationship among any individuals or entities. Any views expressed in this post or at the linked web pages are those of the relevant writer(s) on a particular date, and should not necessarily be attributed to Charles Colman, his law firm, or its agents or clients. Neither the writer of this post nor LAW OF FASHION (or any person or entity associated with it) can or will warrant the thoroughness or accuracy of the content here or at the cited sources.]