Top Appellate Reversals -- Neurovision Medical Products Inc. v NuVasive Inc.

It was one of the largest trademark infringement verdicts of 2010. A Los Angeles federal jury awarded $60 million to a Ventura-based surgical device company because a San Diego competitor used an identical name on its own spinal surgery product.

The jury found against NuVasive Inc. for willful infringement of rival Neurovision Medical Products Inc.'s Neurovision mark. U.S. District Judge Manuel L. Real awarded Neurovision attorney fees and costs and ordered cancellation of NuVasive's trademark registrations.

But the story didn't end with the big win in Real's courtroom. Appellate attorneys for NuVasive were already drafting their claims of a flawed trial.

Aurturo J. Gonzalez, the co-chair of Morrison & Foerster LLP's litigation department and NuVasive's lead trial counsel, said he watched with dismay and frustration as Real made what Gonzalez considered serious legal errors.

For example, Real told the jury in deciding if NuVasive committed trademark fraud to consider only whether NuVasive omitted, in its trademark application disclosure, Neurovision's prior use of the mark.

Gonzalez believed that wasn't the law, and even before the trial was over let MoFo's appellate team know it was likely an appeal would be necessary. His challenge was to continue to litigate the case with an eye to a jury win while protecting the client's rights for the expected appeal.

Deanne E. Maynard, chair of MoFo's appellate and Supreme Court practice group, took it from there. She persuaded a 9th U.S. Circuit Court of Appeals panel that among several of Real's errors, there is no requirement that a trademark applicant disclose all prior uses of a mark.

Neurovision could win only if it maintained its use of the mark without interruption, a significant point upon which Real wrongly instructed the jury, the panel held. It not only vacated Real's judgment, injunction and fee award, but ordered that a new judge be assigned to a retrial.

- JOHN ROEMER

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