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Contact Brian

2801 Alaskan Way, Suite 300
Seattle, WA 98121
T: 206.624.8300

Brian W. Esler

Partner

Brian Esler leads Miller Nash Graham & Dunn’s Washington State commercial litigation team. Super Lawyers magazine has recognized him as one of the “Top 100 Attorneys” in Washington State by for three years in a row, and Benchmark Litigation lists him a “Washington Litigation Star.” His practice emphasizes complex business litigation, intellectual property advice and litigation, construction litigation, defense of financial institutions, and appellate advocacy. Brian has handled numerous noteworthy trade secrets disputes, as well as litigation arising from some of the largest construction projects in the Pacific Northwest. He has broad courtroom experience in a variety of venues, having argued or tried cases in state courts, federal courts and tribal court.

Brian is an editor for the Business Torts Journal, published by the Business Torts and Unfair Competition subcommittee of the ABA Section of Litigation, and serves on the Washington State Bar Association’s Court Rules and Procedures committee, chairing its civil rules subcommittee. He is an active member of the Attorneys Council of the American Subcontractors Association. He is also an accomplished arbitrator, serving as an appointed arbitrator for the King County Superior Court, as a panelist for the American Arbitration Association, and on the advisory board of the Seattle chapter of the Chartered Institute of Arbitrators.

Representative Experience

  • Representing Indian manufacturing company in defending against trademark, trade dress and associated claims in federal court. After District Court judge denied our client’s motion to stay the case and refer the parties to arbitration, and the Ninth Circuit affirmed that decision, successfully sought certiorari in the United States Supreme Court, which granted our client’s petition, reversed the Ninth Circuit and remanded. 
  • Representing automotive warranty provider in defending against allegations of trademark infringement. 
  • Representing coffee company in opposition proceedings before the TTAB. 
  • Represented wine importer in opposition proceedings before the TTAB. 
  • Represented local business consultancy company in pursuing trademark, trade dress and related claims against publicly-traded competitor who was about to publish book with a confusingly-similar title and color scheme to our client’s best-selling book. Case involved novel issues of First Amendment law. After we moved for a preliminary injunction, the case settled on favorable terms. 
  • Defended licensee of certain rights to use Jimi Hendrix’s name and likeness against claims of false designation of origin, trade libel, tortious interference, negligent misrepresentation and fraud brought against it by a competitor and one of Jimi Hendrix’s siblings. After considerable discovery, obtained summary judgment dismissal of all claims and an award of sanctions; dismissal and sanctions upheld by the Ninth Circuit. 
  • Represented sporting goods company in pursuing false advertising claims against competitor. After considerable discovery, and after moving for summary judgment for a finding that the competitor’s claims were demonstrably false, case settled favorably. 
  • Represented transportation provider in defending against trademark infringement claims, including obtaining insurance coverage for defense costs. 
  • Represented manufacturer in pursuing false advertising claims against competitor. Obtained partial summary judgment determining that claims were false, followed by a permanent injunction. Also handled a one-day evidentiary hearing in federal court to pursue contempt charges when competitor appeared to have violated injunction. 
  • Represented manufacturer in pursuing TTAB opposition proceedings. 
  • Represented distributor in defending against TTAB cancellation proceedings. 
  • Represented common-law mark holder in pursuing TTAB cancellation proceedings.
  • Represented well-known romance author in defending against cancellation proceedings in the TTAB. 
  • Defended non-profit foundation against trademark opposition proceeding in the TTAB, and then in federal court. 
  • Represented a desert manufacturer in advising on and pursuing trademark registrations, including designing strategy for registrations world-wide in both Madrid Protocol and non-Madrid Protocol countries. 
  • Represent a clothing designer in advising on and pursuing trademark registrations, and pursuing infringers.
  • Represented video game producer in pursuing trademark, copyright and DMCA claims against various manufacturers of devices that either enabled use of counterfeit games or allowed circumvention of controls in game 
  • Represented video game producer in evaluating trademark and copyright claims against various retailers selling potentially counterfeit products. 
  • Represented romance author in licensing dispute with publisher and distributor. 
  • Defended radio station against claims of copyright infringement. 
  • Represented fishing equipment manufacturer against claims of copyright infringement, including obtaining insurance coverage for defense and settlement. 
  • Represented bankruptcy trustee in pursuing copyright infringement claims against former employees and their new company. 
  • Represented UK owner of website in negotiating sale of website and related intellectual property. 
  • Represent well-known surgeon in licensing and commercializing book, website and related intellectual property. 
  • Represented UK software company in negotiating first US license with publicly-traded US company.
  • Representing foreign manufacturer in pursuing misappropriation claims against former employees. 
  • Representing local company in evaluating and pursuing trade secret and related claims against a foreign competitor. 
  • Represented executive in a high-profile lawsuit brought by former employer, asserting claims that our client misappropriated trade secrets, violated fiduciary duties, and breached contractual obligations. As trial approached, the court granted a number of summary judgment and evidentiary motions that significantly limited the scope and value of plaintiffs’ claims. On what would have been the first day of trial, the parties were able to reach an amicable resolution that terminated the case. 
  • Hired to represent former employees and their new company to challenge a trade secrets injunction that the court had already been entered against them. After significant motions practice and a multi-day evidentiary hearing, convinced court to vacate the injunction and award our clients their attorneys fees 
  • Represented software company in pursuing claims against former employees. After obtaining a temporary restraining order, case settled favorably. 
  • Represented inspection company in pursuing claims against former employees. After obtaining a temporary restraining order, case settled favorably. 
  • Represented former employee of domain name registrar in defending against trade secret misappropriation and related claims. 
  • Represented former owner of UIX design company to defend against claims of trade secret misappropriation and related claims by purchaser, and pursued counterclaims for breach of contract and failure to pay wages. 
  • Represented manufacturing company in pursuing patent and trade secret claims against a much larger, publicly traded competitor. After considerable discovery, and defeating two summary judgment motions, case settled favorably. 
  • Defended employees and their new company against claims of breach of non-compete and trade secrets misappropriation. After defeating summary judgment motion, case settled favorably. 
  • Represented patent holder in pursuing patent claims against the United States for authorizing infringement of patent involving light-emitting diode technology. 
  • Represented defendant in design patent case involving the design of a salmon spinner.
  • Represent the American Subcontractors Association as proposed amicus in support of the petition for review of a case involving the bond and retainage rights of subcontractors on public works projects.
  • Represent one of the largest systems integration and low volt subcontractors in the world in pursuing multi-million dollar delay and other claims arising out of work performed on the Highway 99 single bore tunnel project.
  • Represent and advise a Washington public entity with regards to contractual and other issues arising from the bidding process on proposed improvements to its facility.
  • Represent telecommunications provider in pursuing bid protest arising out of public works project.
  • Represented telecommunications provider in pursuing bid protest and injunctive relief. Case settled shortly after we obtained a temporary restraining order preventing County from entering into contract with alleged lowest responsible bidder.
  • Represented materials supplier on a hospital construction project in defending against defect claims while pursuing payment claims.
  • Represented materials supplier on a public works project in defending against claims regarding allegedly defective high density polyethylene piping.
  • Represented materials supplier on a public works project in pursuing payment claims while defending against claims arising from allegedly defective concrete structures.
  • Represented general contractor in defending against and pursuing various claims arising out of a condominium project, including claims against the concrete and paving subcontractor for faulty installation.
  • Represented property owner and contractor accused of puncturing sewer pipe running under the Duwamish River near the West Seattle Bridge.
  • Represented bridge designer in litigation brought by general contractor arising out of the designer’s work on the I-405/I-5 to SR 169 Stage 1 Widening Design-Build Project. After multiple motions and mediations, and a one-day “mini-trial” before the mediators, case was successfully resolved.
  • Represented WEA in pursuing claims arising from improperly installed concrete flooring at its Federal Way headquarters.
  • Represented public university in pursuing claims arising out of construction project in Boise, Idaho.
  • Dempcy v. Avenius, Case No. 79697-6-I (2019). Dispute among neighbors as to rights and responsibilities with respect to common property. Case currently pending in the Court of Appeals.
  • Washington State Department of Revenue v. F.D.I.C., Case No. 71524-1-I (2015). Represented respondent F.D.I.C. (on the briefs, but did not argue the case). 
  • Alexander v. Sanford, 181 Wn. App. 135, 325 P.3d 341 (2014), petition for review granted, but dismissed by stipulation. Represented respondents Sanford, et al. This case involved a variety of issues arising out of claims against the board members of a condominium association.
  • Patterson v. Northland Investment, Inc., Case No. 27696-1-III (2010). Represented appellant Pattersons in a case involving a real property dispute. 
  • Gourley v. 180Solutions, Case No. 59654-3-I (2008). Represented appellant Gourley (on the briefs).
  • Munro v. Swanson, Case Nos. 55811-1-I, 56082-4-1 (2007). Represented Respondent/Cross-Appellant Munro in a lease dispute.
  • Gildon v. Simon Property Group, Inc., Case No. 53151-4-I, aff’d in part, reversed in part by 158 Wn.2d 483, 145 P.3d 1196 (2006).  Represented petitioner Simon Property Group in case involving unsettled issues under Revised Uniform Partnership Act. 
  • Washington State Grange v. Brandt, 136 Wn. App. 138, 148 P.3d 1069 (2006). Represented respondent Washington State Grange in a case involving the application of the rule against perpetuities. 
  • State v. Heckel, 143 Wn.2d 824, 24 P.3d 404 (2001). Represented amicus curaie Washington Association of Internet Providers.
  • Washington State Bank v. Medalia, 96 Wn. App. 547, 984 P.2d 1041 (1999). Represented appellant Medalia Healthcare, LLC. Involved the question of whether a purchaser of secured assets had committed conversion by allegedly interfering with security interest. 
  • G.W. Equipment Leasing, Inc. v. Mt. McKinley Fence Co., Inc., 97 Wn. App. 191, 982 P.2d 114 (1999). Represented appellant G.W. Equipment. Involved a question of whether Arizona or Washington community property law should control the interpretation of a contract.