J. David Mayberry

J. David Mayberry

As lead trial counsel, David Mayberry has helped clients resolve intellectual property law claims at trial, in arbitration, through mediation and creative settlements outside the courtroom. He has complex litigation experience in patent, trademark, copyright, trade secret, franchising, contract and antitrust cases. Mr. Mayberry has achieved the highest rating in Martindale-Hubbell.

Mr. Mayberry provides counsel to clients on a wide-range of issues from sweepstakes, advertising and promotional law to licensing and franchising law. He is the co-chair of the Firm's Trademark and Unfair Competition Team and a member of the Patent Litigation Team.

Selected Experience

· Retained as appellate counsel in trademark infringement appeal to Ninth Circuit. Consumerinfo.com, Inc. v. Money Management International, Inc., et al., Case No. 08-56705 c/w 09-55228, (9th Cir., filed February 13, 2009).

· Lead defense counsel for Marriott International Design & Construction Services, Inc. in copyright case. Culp, Inc. v. Valley Forge Fabrics, Inc. and Marriott International Design & Construction Services, Inc., Case No. 1:08-cv-00606-US-PTS, (M.D.N.C., filed August 25, 2008).

· Lead trial counsel for Marriott International Corporation in trademark infringement litigation to enforce rights in Residence Inn, Courtyard and Marquis brands. Marriott International, Inc. v. Sunburst Hospitality Corporation, Civil Action No. 1:07-cv-859, (E.D. Va., April 29, 2008). Marriott International, Inc. v. Leview Boymelgreen, Case No. 06 CV 15440, (S.D. N.Y., July 16, 2007).

· Counsel of record in trademark case. Handled damage experts and fraud on Patent and Trademark Office claims. Homelife Communities Group v. Homelife Realty Services, Inc., et al., Case No. 1:06-cv-1607, (N.D. Ga., argued April 22, 2008).

· Lead trial counsel for Fortune 500 company (Hormel Foods Corporation) in a patent infringement case. Pre-discovery summary judgment of non-infringement upheld by Federal Circuit Court. James P. Logan, et al. v. Hormel Foods, Inc., et al., Cause No. 06-1114, (U.S Ct. of Appeals, Fed. Cir., January 26, 2007).

· Lead trial counsel for Fortune 500 company (Costco Warehouse Clubs) in alleged trademark infringement case for selling re-packaged goods. Negotiated dismissal with prejudice on pleadings, thereby defeating pending motion for preliminary injunction (S.D. Texas 2006).

· Lead trial counsel in holdover franchisee and covenant not to compete case. Obtained substantial monetary settlement after commencing case. Saxbys Coffee, Inc v. Saxbys Coffee Hickory. (W.D. N.C. 2006).

· Lead trial counsel for Fortune 500 company in unfair competition case which resulted in preliminary injunction to enforce covenant not to compete followed by $2.5 million recovery upon trade secret misappropriation claim. Carlotta Amson v. Hormel HealthLabs, Inc., et al., Civil Action No. 1:04-CV-1463, (E.D. Va. 2005).

· Lead trial counsel for defendant retail specialty food franchisor which resulted in summary judgment on six count complaint followed by favorable settlement of counterclaim for discharge from obligation to pay continuing fee in trademark assignment in perpetuity. Heavenly Ham Co., et al. v. The HH Franchise Company, LLC, et al., Case No. 04-C-2577 (N.D. Ill. 2005).

· Lead trial counsel for Fortune 50 company in numerous Lanham Act, false advertising, and patent infringement cases including three winning trials before Trademark Trial and Appeal Board. Sara Lee Corp. v. Kayser-Roth Corp. Opp. No. 101,979 (SHEER ENERGY and SHEER ELEGANCE v. SHEER ENDURANCE for hosiery); Sara Lee Corp. v. Goldstone Hosiery Co., Can. No. 22,732 (T.T.A.B. 2001)( L'EGGS v. GOLDEN LEGS for hosiery); Hygrade Food Products Corp. v. CRB Co., Opp. No. 103,744 (T.T.A.B. 2000)(BALLPARK franks v. "BALLPARK Draft").

· Lead trial counsel under a joint defense agreement involving 19 defendants which resulted in dismissal with prejudice of fraudulent inducement of patent license and patent infringement claims (2004).

· Lead trial counsel in trademark infringement case which resulted in injunctive relief to enjoin infringement by use of sponsored links on the internet. HBH Limited Partnership v. Honey Baked Ham Co. and Leon Denning, Civil Action No. 03 C 7961 (N.D. Ill. 2003).

· Defended a fortune 100 company in arbitration hearing which resulted in award of no damages in case involving soft drink trademark license agreement. Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753 (11th Cir. 1993).

· Defended a criminal anti-trust pricing fixing case which resulted in a jury verdict of not guilty.

· Defended a patent infringement claim in which patent declared to be invalid, not infringed and treble damages in excess of $2 million on counterclaim for unfair competition awarded. Mirafi, Inc. v. Jerry Murphy, et al., 14 U.S.P.Q 2d 1337 (W.D. N.C. 1989).

· Mr. Mayberry is general counsel for Putt-Putt, LLC (franchisor of family fun centers) and Intellectual Property Law counsel for HBH Limited Partnership (owner of HONEYBAKED marks). He provides trademark counsel to a national warehouse club, numerous furniture and textile manufacturers, and many other clients representing both fortune 500 companies and emerging companies.

Publications, Articles and Speeches

· Right Appeal, Wrong Party: How the Federal Circuit Likely Will Interpret Amended Rule 3 of the Federal Rules of Appellate Procedure, Intellectual Property Today, August 2006).

Background

Mr. Mayberry is a recognized leader in Trademark Trial and Appeal Board (TTAB) opposition and cancellation proceedings.

· Past Chair, Advanced TTAB Practice Forum, an annual program sponsored by the International Trademark Association offered to advanced trademark practitioners.

· Speaker, American Bar Association programs on TTAB Inter Partes Proceedings.

· Presenter of Annual review of TTAB cases, Law Education Institute's National CLE Conference.

· Moderator, International Franchise Association Legal Symposium May 7-8, 2007, Playing the Game by the Rules: Contests, Sweepstakes, Gift Cards & Customer Loyalty Programs.

· Member of the International Trademark Association (INTA); the American Bar Association Intellectual Property Section; the District of Columbia Bar Association, Intellectual Property Law Section; the North Carolina Bar Association Intellectual Property Section; the Virginia Bar Association, Intellectual Property Law Section; the American Bar Association Forum on Franchising; and the American Inns of Court

· AV® rated by Martindale-Hubbell