Other Barks & Bites for Friday, February 18: Georgia Supreme Court Affirms Dismissal of Keyword Theft Claims, Eleventh Circuit Reverses Trade Secret Claim Dismissal and EUIPO Reports 200,000 Trademark Applications Filed in 2021

This week in Other Barks & Bites: the Fifth Circuit affirmed Texas A&M’s sovereign immunity win over “12th Man” copyright claims; the EUIPO reported that 2021 ended with more than 200,000 EU trademark applications filed at the agency; DoorDash reported that it received a record number of consumer delivery orders during the fourth quarter of 2021; the Eleventh Circuit reversed a district court’s dismissal of trade secret claims after finding that it improperly applied Alabama state law instead of Missouri trade secret law; the Georgia Supreme Court affirmed a ruling dismissing personal property theft claims by Edible Arrangements after finding that the trademark owner failed to allege consumer confusion; and Judge Gilstrap scheduled a jury trial in the 5G mobile network patent infringement suit between Ericsson and Apple for June 2023.

Bites

EUIPO Report Shows Agency Received 200,000 EU Trademark Applications Last Year – On Wednesday, February 16, the European Union Intellectual Property Office (EUIPO) released trademark filing statistics for 2021 showing that the agency received more than 200,000 trademark applications last year, despite the economic slowdowns posed by the COVID-19 pandemic. The agency also reported that 13,000 small- and medium-sized enterprises (SMEs) applied for assistance through the EUIPO’s 2021 Ideas Powered for Business SME Fund. 

Georgia Supreme Court Says Edible Arrangements’ Trademark Theft Claims Properly Nixed – On Tuesday, February 15, the Supreme Court of Georgia issued a ruling in Edible IP, LLC v. Google, LLC in which the state’s highest court dismissed Edible’s appeal of a lower court’s dismissal of its claims that Google stole its personal property by using the trademarked name “Edible Arrangements” in its keyword search business. Justice Carla Wong McMillan affirmed the dismissal of Edible’s theft claims after finding that Edible had not alleged any likelihood of consumer confusion, which was required to prove Edible’s theft claim of a trade name under Georgia state law. 

Tenth Circuit Affirms Grant of MTD on False Statement Claims on Dog Food Branding – On Tuesday, February 15, the U.S. Court of Appeals for the Tenth Circuit issued a decision in Renfro v. Champion Petfoods USA, Inc. in which the appellate court affirmed a district court’s grant of a motion to dismiss claims alleging false and misleading statements on Champion’s dog food packaging, finding that statements that the dog food was “Biologically Appropriate” and used “Fresh and Regional Ingredients” were either mere puffery or overly subjective and thus not materially misleading to a reasonable consumer. 

Fifth Circuit Affirms Sovereign Immunity Win for Texas A&M in “12th Man” Copyright Case – On Monday, February 14, the U.S. Court of Appeals for the Fifth Circuit issued a decision in Canada Hockey, L.L.C. v. Texas A&M University Athletic Department in which the appellate court denied a petition for rehearing filed by the writer of a biography about the “12th Man” tradition for Texas A&M’s football program. The appellate court affirmed the dismissal of claims against Texas A&M after ruling that the school committed no 14th Amendment due process or takings violations, and that Canada Hockey failed to state a plausible claim that two employees of Texas A&M’s Athletics Department committed copyright infringement.

Eleventh Circuit Reverses Trade Secret Claim Dismissal For Improper Choice of Law – On Monday, February 14, the U.S. Court of Appeals for the Eleventh Circuit issued a decision in Alabama Aircraft Industries, Inc. v. Boeing Co. in which the appellate court reversed part of a district court ruling dismissing trade secret misappropriation claims filed by Pemco Aircraft Engineering following a failed partnership with Boeing that led to an Air Force contract for Boeing. The Eleventh Circuit ruled that the district court was wrong to apply Alabama state trade secret law to Pemco’s claims because a choice of law provision applying Missouri law to the non-disclosure agreement between Pemco and Boeing was broad enough to cover the trade secret misappropriation claims.

Fifth Circuit Rules That Email Service to Foreign Trademark Defendants Complied With FRCP – On Monday, February 14, the Fifth Circuit issued a decision in Viahart, L.L.C. v. Gangpeng in which the appellate court affirmed default judgments for trademark infringement against a trio of appellants alleged to have sold infringing educational toy products online. The Fifth Circuit dismissed challenges based on improper service, finding that Texas law did not require more than one attempt at personal service at a personal address before using email service, and finding that email service to foreign defendants did not violate Federal Rule of Civil Procedure 4(f), as FRCP 4(f)(3) allows for service by other means that are not prohibited by international treaties like the Hague Convention.

Barks

USPTO Renews Charter for Advisory Committee on National Innovation Medal – On Thursday, February 17, the U.S. Patent and Trademark Office issued a notice in the Federal Register announcing that the agency had renewed the charter for the National Medal of Technology and Innovation Nomination Evaluation Committee, which includes technology experts who play an advisory role during the nomination process for awarding the nation’s highest honor in technological achievement.

 Judge Chhabria Dismisses Copyright Claims Against Apple From iDiversicons Creator – On Wednesday, February 16, U.S. District Judge Vince Chhiabria of the Northern District of California granted a motion to dismiss copyright and trade dress infringement claims filed against Apple by Cub Club Investment, the creator of racially diverse iDiversicons emoji, after finding that Cub Club did not allege that any copyrightable elements of its emojis were copied and that its alleged trade dress was functional and therefore unprotectable.

USITC Finds No Section 337 Violation By Stanley Black & Decker Stud Finders – On Tuesday, February 15, the U.S. International Trade Commission announced that a Section 337 investigation petitioned by Zircon Corporation had terminated without finding any alleged violations of Zircon’s patent rights by certain electronic stud finders, metal detectors and electrical scanners imported into the U.S. for sale by Stanley Black & Decker.

Second Circuit Dismisses Appeal of Denial of Attorney’s Fees in Liebowitz Copyright Suit – On Tuesday, February 15, the U.S. Court of Appeals for the Second Circuit issued a decision in Boesen v. United Sports Publications, Ltd. in which the appellate court affirmed a district court’s denial of a motion for attorney’s fees for a successful defense to copyright infringement claims filed by a client of notorious plaintiff lawyer Richard Liebowitz, finding that the district court was well within its discretion to deny attorney’s fees despite noting “concerns about… plaintiff’s counsel’s broader approach to copyright litigation.”

EUIPO Publishes Consolidated Rules of Boards of Appeal Procedure Online – On Tuesday, February 15, the European Union Intellectual Property Organization (EUIPO) announced that the Consolidated Rules of Procedure for the EUIPO’s Boards of Appeal, which have been amended since they were first adopted in February 2020, have been published online on the agency’s official website.

USPTO Study Shows Qualcomm, Intel in 5G Lead But No One Company Dominating – On Tuesday, February 15, the U.S. Patent and Trademark Office issued a report on the state of patenting activity in the 5G mobile networking sector finding that, although Intel and Qualcomm were the two most active companies in filing patents to cover 5G technologies, filing activities among many companies show that there is healthy competition in 5G innovation.

Judge Gilstrap Schedules 5G Mobile Patent Trial Between Ericsson and Apple for June 2023 – On Tuesday, February 15, U.S. District Judge J. Rodney Gilstrap of the Eastern District of Texas entered a notice of scheduling conference which set a June 2023 trial date for patent infringement claims brought by Swedish telecom firm Ericsson against American consumer tech giant Apple over the latter’s alleged infringement of 5G mobile networking technologies.

Warner Records, Dwight Yoakam Settle Copyright Termination Suit – On Sunday, February 13, a joint notice of settlement was entered in the Central District of California, ending a lawsuit brought by country musician Dwight Yoakam against Warner Records seeking to terminate the record company’s copyright to Yoakam’s earliest works, including his debut album “Guitars, Cadillacs, Etc., Etc.”

This Week on Wall Street

Walmart Beats Earnings Expectations, Provides Positive Long-Term Guidance – On Thursday, February 17, retail giant Walmart posted quarterly earnings showing that the company beat analyst expectations on earnings per share ($1.53 adjusted EPS vs. $1.50 expected) as well as revenues ($152.87 billion vs. $151.53 billion expected) despite an additional $400 million in supply chain costs during the quarter. Walmart also provided strong long-term guidance on earnings thanks to growth in its advertising and fintech divisions.

DoorDash Posts Record Number of Delivery Orders During 2021’s Fourth Quarter – On Thursday, February 17, food delivery company DoorDash posted quarterly earnings showing that the company handled 369 million orders from consumers, 8 million more orders than analysts predicted, with a 36 percent increase in gross order value over 2020’s fourth quarter indicating that consumers were spending more on each order placed through the company.

Quarterly Earnings – The following firms identified among the IPO’s Top 300 Patent Recipients for 2021 are announcing quarterly earnings next week (2020 rank in parentheses):

• Monday: Dish Network Corp. (t-236th)
• Tuesday: Fresenius SE & Co. KGaA (t-239th); Medtronic plc (32nd)
• Wednesday: eBay Inc. (158th); Lenovo Group Ltd. (75th); Xperi Holding Corp. (104th)
• Thursday: VMware, Inc. (45th)
• Friday: BASF SE (88th); Delta Electronics, Inc. (t-174th)