Tuesday, January 20, 2015

Omega S.A. v. Costco Wholesale (9th Cir. - Jan. 20, 2015)

It took the Ninth Circuit over a year after oral argument to publish its opinion in this one.  But here you go.

As is usual with my speculation, I may well be entirely off base.  But read Judge Wardlaw's concurrence and see if you don't think -- as I do -- that it reads like it started out as a bench memorandum for the panel and turned into a concurrence only after Judges Nelson and Rawlinson wanted to resolve the case on other grounds.

It's also an opinion worth reading for two other reasons.  First, it's unusual (to say the least) that a panel decides the case on the basis of an argument that (as Judge Wardlaw claims) the parties did not brief and that the winning party expressly disavowed at oral argument.  Mind you, there was an intervening Supreme Court decision that was exceptionally relevant.  But still.

Second, Judge Wardlaw's concurrence is all about a neat little issue that I hadn't previously seen in the Ninth Circuit (though the Supreme Court took a related issue up) -- whether a party can stamp something on a product (here, fancy Omega watches), claim that this stamp is a "copyright," and then use that copyright to stop entities like Costco from selling gray market products; e.g., brand name watches that it bought cheaply in another country to sell here.  She says that you can't.  The majority, by contrast, resolves the case on a different ground.

Neat stuff.  Even if it took quite a while in coming.  (You'll also notice that the district court number in the caption begins with "04".  So this one's been around for more than a little bit.)