infringement privilege in California

2014(Brown, supra, 101 Cal.App.4th at p. 321 ; People v. Miller (1989) 208 Cal.App.3d 1311, 1315 [“The mere requirement of taking the test in itself is insufficient to constitute an infringement of the privilege.”].) And, if the circumstances surrounding the questioning are noncustodial, no Miranda warnings are 16 Presumably, “reasonable suspicion” could even include a probationer’s denials, if the results of the polygraph exam indicated the probationer was lying.

2014The privilege against self-incrimination is not self-executing; it must be claimed. [Citation.] Although defendant has a duty to answer the polygraph examiner’s questions truthfully, unless he invokes the privilege, shows a realistic threat of self-incrimination and nevertheless is required to answer, no violation of his right against self-incrimination is suffered. [Citation.] The mere requirement of taking the test in itself is insufficient to constitute an infringement of the privilege.” (People v. Miller (1989) 208 Cal.App.3d 1311, 1315 ; see Brown v. Superior Court (2002) 101 Cal.App.4th

2014(Brown, supra, 101 Cal.App.4th at p. 321 ; People v. Miller (1989) 208 Cal.App.3d 1311, 1315 [“The mere requirement of taking the test in itself is insufficient to constitute an infringement of the privilege.”].) And, if the circumstances surrounding the questioning are noncustodial, no Miranda warnings are 16 Presumably, “reasonable suspicion” could even include a probationer’s denials, if the results of the polygraph exam indicated the probationer was lying.

2014The privilege against self-incrimination is not self-executing; it must be claimed. [Citation.] Although defendant has a duty to answer the polygraph examiner’s questions truthfully, unless he invokes the privilege, shows a realistic threat of self-incrimination and nevertheless is required to answer, no violation of his right against self-incrimination is suffered. [Citation.] The mere requirement of taking the test in itself is insufficient to constitute an infringement of the privilege.” (People v. Miller (1989) 208 Cal.App.3d 1311, 1315 ; see Brown v. Superior Court (2002) 101 Cal.App.4th

2025(See Whitley, supra, 50 Cal.4th at p. 1215.) This case is unlike Fogerty, where the United States Supreme Court emphasized that a successful defense of a copyright action could further the policy goals of the Copyright Act every bit as much as the successful prosecution of an infringement claim. ( Fogerty, supra, 510 U.S. at pp. 526– 527.) Marinkovich disputes this, contending that section 502 is like the Copyright Act in that it demonstrates an intent by the Legislature to protect both potential plaintiffs and potential defendants.

2014(See Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482 [ 104 Cal.Rptr.3d 545 ] [“We also may decline to take judicial notice of matters that are not relevant to dispositive issues on appeal.”].) 4 It is possible the anonymous comments were written by two different authors.

2008Rather, a buyer must establish only “that the infringement claim is of a substantial nature that is reasonably likely to subject the buyer to litigation, and has a significant and adverse effect on the buyer’s ability to make use of the goods in question.” (Id., 922 A.2d at p. 797 ; see also Johnson Electric North America v. Mabuchi Motor (S.D.N.Y. 2000) 98 F.Supp.2d 480 , 489 *482 [noting that “[cjourts have interpreted [§] 2-312(3) to entitle the buyer of an infringing good to indemnification from the seller for any claims by a third party for infringement”].) While our analysis is analogous

2008Rather, a buyer must establish only “that the infringement claim is of a substantial nature that is reasonably likely to subject the buyer to litigation, and has a significant and adverse effect on the buyer’s ability to make use of the goods in question.” (Id., 922 A.2d at p. 797 ; see also Johnson Electric North America v. Mabuchi Motor (S.D.N.Y. 2000) 98 F.Supp.2d 480 , 489 *482 [noting that “[cjourts have interpreted [§] 2-312(3) to entitle the buyer of an infringing good to indemnification from the seller for any claims by a third party for infringement”].) While our analysis is analogous

2008This is because federal law grants exclusive jurisdiction to the federal courts to resolve patent claims (the underlying infringement claim in Linear Technology Corp., supra, 152 Cal.App.4th 115 ), but allows state courts concurrent jurisdiction over trademark claims. (28 U.S.C. 1338(a) [granting federal district courts “original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks,” and stating that “[s]uch jurisdiction shall be exclusive of the courts of the states in patent, plant variety protection and c

2008This is because federal law grants exclusive jurisdiction to the federal courts to resolve patent claims (the underlying infringement claim in Linear Technology Corp., supra, 152 Cal.App.4th 115 ), but allows state courts concurrent jurisdiction over trademark claims. (28 U.S.C. 1338(a) [granting federal district courts “original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks,” and stating that “[s]uch jurisdiction shall be exclusive of the courts of the states in patent, plant variety protection and c

2001(See Padilla v. Pueblo of Acoma (1988) 107 N.M. 174, 178 [ 754 P.2d 845, 849 ] (Padilla) [“the infringement test applies to individual Indians and is inapplicable to the exercise of state court jurisdiction over an Indian tribe that has invoked its sovereign immunity”].) Padilla , relied on by plaintiff, did conclude immunity for off-reservation conduct “is solely a matter of comity.” (Id. at p. 179 [ 754 P.2d at p. 850 ], cert. den. sub nom.

2001(See Padilla v. Pueblo of Acoma (1988) 107 N.M. 174, 178 [ 754 P.2d 845, 849 ] (Padilla) [“the infringement test applies to individual Indians and is inapplicable to the exercise of state court jurisdiction over an Indian tribe that has invoked its sovereign immunity”].) Padilla , relied on by plaintiff, did conclude immunity for off-reservation conduct “is solely a matter of comity.” (Id. at p. 179 [ 754 P.2d at p. 850 ], cert. den. sub nom.

1965We do not intend, however, to lend any countenance to the truth of that assumption.’’ ( 211 U.S. 78, 114 .) In Adamson v. California, 332 U.S. 46, 50 [ 67 S.Ct. 1672 , 91 L.Ed. 1903 , 171 A.L.R. 1223 ], the court again assumed that the comment would violate the privilege “without any intention thereby of ruling upon the issue,’’ and followed its holding in Twining that the Fifth Amendment was not binding upon the states. 3 The state courts have divided on the question whether the comment rule violates state constitutional protections of the privilege against self-incrimination.

1965We do not intend, however, to lend any countenance to the truth of that assumption.’’ ( 211 U.S. 78, 114 .) In Adamson v. California, 332 U.S. 46, 50 [ 67 S.Ct. 1672 , 91 L.Ed. 1903 , 171 A.L.R. 1223 ], the court again assumed that the comment would violate the privilege “without any intention thereby of ruling upon the issue,’’ and followed its holding in Twining that the Fifth Amendment was not binding upon the states. 3 The state courts have divided on the question whether the comment rule violates state constitutional protections of the privilege against self-incrimination.

1965(People v. Cotter (1965) 63 Cal.2d 386, 398 [ 46 Cal.Rptr. 622 , 405 P.2d 862 ]; People v. Bostick (1965) 62 Cal.2d 820, 823-827 [ 44 Cal.Rptr. 649 , 402 P.2d 529 ]; and cf. People v. Sharer (1964) 61 Cal.2d 869, 872-878 [ 40 Cal.Rptr. 851 , 395 P.2d 899 ].) Similar considerations govern the application of the Escobedo-Dorado doctrine (Escobedo v. Illinois (1964) 378 U.S. 478, 490-491 [ 84 S.Ct. 1758 , 12 L.Ed.2d 977 ]; People v. Dorado (1965) 62 Cal.2d 338, 353-354 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ]), which in part rests on the concept of protecting the privilege against self-incrimination (

1965(People v. Cotter (1965) 63 Cal.2d 386, 398 [ 46 Cal.Rptr. 622 , 405 P.2d 862 ]; People v. Bostick (1965) 62 Cal.2d 820, 823-827 [ 44 Cal.Rptr. 649 , 402 P.2d 529 ]; and cf. People v. Sharer (1964) 61 Cal.2d 869, 872-878 [ 40 Cal.Rptr. 851 , 395 P.2d 899 ].) Similar considerations govern the application of the Escobedo-Dorado doctrine (Escobedo v. Illinois (1964) 378 U.S. 478, 490-491 [ 84 S.Ct. 1758 , 12 L.Ed.2d 977 ]; People v. Dorado (1965) 62 Cal.2d 338, 353-354 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ]), which in part rests on the concept of protecting the privilege against self-incrimination (

1965The United States Supreme Court has heard two cases challenging state comment rules, but refused to decide the issue in both of them. ( Malloy v. Hogan, 378 U.S. 1, 2-3, fn. 1 [ 84 S.Ct. 1489 , 12 L.Ed.2d 653 ].) In the first case, Twining v. New Jersey, 211 U.S. 78, 90-91 [ 29 S.Ct. 14 , 53 L.Ed. 97 ], the court assumed that the comment infringed the federal privilege against self-incrimination but held that the Fourteenth Amendment did not require the states to grant that privilege. *448 The court emphasized that "We have assumed only for the purpose of discussion that what was done in the c

1965The United States Supreme Court has heard two cases challenging state comment rules, but refused to decide the issue in both of them. ( Malloy v. Hogan, 378 U.S. 1, 2-3, fn. 1 [ 84 S.Ct. 1489 , 12 L.Ed.2d 653 ].) In the first case, Twining v. New Jersey, 211 U.S. 78, 90-91 [ 29 S.Ct. 14 , 53 L.Ed. 97 ], the court assumed that the comment infringed the federal privilege against self-incrimination but held that the Fourteenth Amendment did not require the states to grant that privilege. *448 The court emphasized that "We have assumed only for the purpose of discussion that what was done in the c

1965(People v. Cotter (1965) 63 Cal.2d 386, 398 [ 46 Cal.Rptr. 622 , 405 P.2d 862 ]; People v. Bostick (1965) 62 Cal.2d 820, 823-827 [ 44 Cal.Rptr. 649 , 402 P.2d 529 ]; and cf. People v. Sharer (1964) 61 Cal.2d 869, 872-878 [ 40 Cal.Rptr. 851 , 395 P.2d 899 ].) Similar considerations govern the application of the Escobedo-Dorado doctrine (Escobedo v. Illinois (1964) 378 U.S. 478, 490-491 [ 84 S.Ct. 1758 , 12 L.Ed.2d 977 ]; People v. Dorado (1965) 62 Cal.2d 338, 353-354 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ]), which in part rests on the concept of protecting the privilege against self-incrimination (

1965(People v. Cotter (1965) 63 Cal.2d 386, 398 [ 46 Cal.Rptr. 622 , 405 P.2d 862 ]; People v. Bostick (1965) 62 Cal.2d 820, 823-827 [ 44 Cal.Rptr. 649 , 402 P.2d 529 ]; and cf. People v. Sharer (1964) 61 Cal.2d 869, 872-878 [ 40 Cal.Rptr. 851 , 395 P.2d 899 ].) Similar considerations govern the application of the Escobedo-Dorado doctrine (Escobedo v. Illinois (1964) 378 U.S. 478, 490-491 [ 84 S.Ct. 1758 , 12 L.Ed.2d 977 ]; People v. Dorado (1965) 62 Cal.2d 338, 353-354 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ]), which in part rests on the concept of protecting the privilege against self-incrimination (

1965(People v. Cotter (1965) 63 Cal.2d 386, 398 [ 46 Cal.Rptr. 622 , 405 P.2d 862 ]; People v. Bostick (1965) 62 Cal.2d 820, 823-827 [ 44 Cal.Rptr. 649 , 402 P.2d 529 ]; and cf. People v. Sharer (1964) 61 Cal.2d 869, 872-878 [ 40 Cal.Rptr. 851 , 395 P.2d 899 ].) Similar considerations govern the application of the Escobedo-Dorado doctrine (Escobedo v. Illinois (1964) 378 U.S. 478, 490-491 [ 84 S.Ct. 1758 , 12 L.Ed.2d 977 ]; People v. Dorado (1965) 62 Cal.2d 338, 353-354 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ]), which in part rests on the concept of protecting the privilege against self-incrimination (

1965(People v. Cotter (1965) 63 Cal.2d 386, 398 [ 46 Cal.Rptr. 622 , 405 P.2d 862 ]; People v. Bostick (1965) 62 Cal.2d 820, 823-827 [ 44 Cal.Rptr. 649 , 402 P.2d 529 ]; and cf. People v. Sharer (1964) 61 Cal.2d 869, 872-878 [ 40 Cal.Rptr. 851 , 395 P.2d 899 ].) Similar considerations govern the application of the Escobedo-Dorado doctrine (Escobedo v. Illinois (1964) 378 U.S. 478, 490-491 [ 84 S.Ct. 1758 , 12 L.Ed.2d 977 ]; People v. Dorado (1965) 62 Cal.2d 338, 353-354 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ]), which in part rests on the concept of protecting the privilege against self-incrimination (

1965(People v. Cotter (1965) 63 Cal.2d 386, 398 [ 46 Cal.Rptr. 622 , 405 P.2d 862 ]; People v. Bostick (1965) 62 Cal.2d 820, 823-827 [ 44 Cal.Rptr. 649 , 402 P.2d 529 ]; and cf. People v. Sharer (1964) 61 Cal.2d 869, 872-878 [ 40 Cal.Rptr. 851 , 395 P.2d 899 ].) Similar considerations govern the application of the Escobedo-Dorado doctrine (Escobedo v. Illinois (1964) 378 U.S. 478, 490-491 [ 84 S.Ct. 1758 , 12 L.Ed.2d 977 ]; People v. Dorado (1965) 62 Cal.2d 338, 353-354 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ]), which in part rests on the concept of protecting the privilege against self-incrimination (

1965(People v. Cotter (1965) 63 Cal.2d 386, 398 [ 46 Cal.Rptr. 622 , 405 P.2d 862 ]; People v. Bostick (1965) 62 Cal.2d 820, 823-827 [ 44 Cal.Rptr. 649 , 402 P.2d 529 ]; and cf. People v. Sharer (1964) 61 Cal.2d 869, 872-878 [ 40 Cal.Rptr. 851 , 395 P.2d 899 ].) Similar considerations govern the application of the Escobedo-Dorado doctrine (Escobedo v. Illinois (1964) 378 U.S. 478, 490-491 [ 84 S.Ct. 1758 , 12 L.Ed.2d 977 ]; People v. Dorado (1965) 62 Cal.2d 338, 353-354 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ]), which in part rests on the concept of protecting the privilege against self-incrimination (

1965(People v. Cotter (1965) 63 Cal.2d 386, 398 [ 46 Cal.Rptr. 622 , 405 P.2d 862 ]; People v. Bostick (1965) 62 Cal.2d 820, 823-827 [ 44 Cal.Rptr. 649 , 402 P.2d 529 ]; and cf. People v. Sharer (1964) 61 Cal.2d 869, 872-878 [ 40 Cal.Rptr. 851 , 395 P.2d 899 ].) Similar considerations govern the application of the Escobedo-Dorado doctrine (Escobedo v. Illinois (1964) 378 U.S. 478, 490-491 [ 84 S.Ct. 1758 , 12 L.Ed.2d 977 ]; People v. Dorado (1965) 62 Cal.2d 338, 353-354 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ]), which in part rests on the concept of protecting the privilege against self-incrimination (

1965(People v. Cotter (1965) 63 Cal.2d 386, 398 [ 46 Cal.Rptr. 622 , 405 P.2d 862 ]; People v. Bostick (1965) 62 Cal.2d 820, 823-827 [ 44 Cal.Rptr. 649 , 402 P.2d 529 ]; and cf. People v. Sharer (1964) 61 Cal.2d 869, 872-878 [ 40 Cal.Rptr. 851 , 395 P.2d 899 ].) Similar considerations govern the application of the Escobedo-Dorado doctrine (Escobedo v. Illinois (1964) 378 U.S. 478, 490-491 [ 84 S.Ct. 1758 , 12 L.Ed.2d 977 ]; People v. Dorado (1965) 62 Cal.2d 338, 353-354 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ]), which in part rests on the concept of protecting the privilege against self-incrimination (

1965The infringement of the privilege against self-incrimination by permitting erroneous comment on the failure of the defendant to take the stand cannot be raised by collateral attack (In re Spencer (1965) 63 Cal.2d 400, 414 [ 46 Cal.Rptr. 753 , 406 P.2d 33 ]; In re Gaines (1965) 63 Cal.2d 234, 237-240 [ 45 Cal.Rptr. 865 , 404 P.2d 473 ]); and even on direct attack such error will be evaluated to determine whether it contributed to the conviction.

1965The infringement of the privilege against self-incrimination by permitting erroneous comment on the failure of the defendant to take the stand cannot be raised by collateral attack (In re Spencer (1965) 63 Cal.2d 400, 414 [ 46 Cal.Rptr. 753 , 406 P.2d 33 ]; In re Gaines (1965) 63 Cal.2d 234, 237-240 [ 45 Cal.Rptr. 865 , 404 P.2d 473 ]); and even on direct attack such error will be evaluated to determine whether it contributed to the conviction.