Re: Exclusive jurisdiction -- remand or dismiss?

At 09:15 AM 10/11/2005, you wrote:
>A complaint filed in state court claims copyright and trademark
>infringement, as well as trade secret misappropriation. Obviously, you can
>remove the case to federal court. Can you alternatively just move to
>dismiss the trademark and copyright claims for lack of subject matter
>jurisdiction? Is the federal court's jurisdiction exclusive as to both
>trademark and copyright infringement?

No, while *copyright* is exclusive federal jurisdiction (same with patent and plant variety protection), trademark is not. 28 U.S.C. 1338(a).

>I realize that the trademark infringement claim might be pled as an unfair
>business practice under state law, but assuming that it is only pled as a
>violation of the Lanham Act does it have to be dismissed?
Lanham Act claims can be brought in state court; the state and federal courts have concurrent jurisdiction. You can bring the state law unfair competion claims in federal court if joined with "substantial and related" federal copyright, patent, trademark, or plant variety protection claims. 28 U.S.C. 1338(b).

>Is there anything the state court can do other than dismiss? I assume the
>plaintiff can't remove his own case, and the state court can't transfer
>it, so the only thing that can happen is dismissal, requiring the
>plaintiff to re-file in federal court. Am I wrong?
>
>John Noble

S. Martin Keleti
Cohen and Cohen
740 North La Brea Avenue
Los Angeles, CA 90038-3339
323.938.5000
323.936.6354 fax Received on Wed Oct 12 2005 - 23:45:00 GMT