Posts Tagged: "infringement"

Copyright is important in all forms of media because it provides legal ownership over the work someone produces. This allows the author, artist, etc. control over how their work is used. Without copyright laws, content could be stolen from one creator and used by someone else; thus, a profit could be made by someone other than the creator from content that they put no effort into. Since it is the copyright holder’s responsibility to ensure that a copyright has not been infringed upon, it is vital to keep a close eye on your content and how it is used by others on the internet.

Anybody who has any involvement with Intellectual Property (“IP”) knows full well that protecting IP means a multi-step process. Obviously, step one is the conception of the invention, idea, trademark, trade name, or other innovation where protection might be necessary. Step two is the decision about what to do with the “new” idea, etc. in terms of the need to try for exclusivity on it –or not. Many “new” things do not need IP protection – and other “new” things may not qualify for it. If the “new” idea fits into the area where protection is desirable and it qualifies, then the next step is to seek legal protection. Of course, such protection will have a cost – whether or not the protection is sought by the inventor/conceptualizer himself/herself or itself (in the case of an organization) or assistance of counsel is required.

Nothing has fundamentally changed about the nature of design patents. The first US design patent was granted in 1842. The Statue of Liberty, Coke bottle, Volkswagen Beatle, Stealth Bomber and Star Wars’ Yoda are all protected by design patents. Design patents have long played an important role in consumer electronics, automotive, apparel, jewelry, packaging and other industries. But industrial design is becoming increasingly important, Mr. Kappos explains, because the increasing functionality of man-made devices brings with it increasing complexity, so innovative companies are constantly seeking superior designs, a convergence of form and function that helps make the complex simple and sets their companies apart; and protecting such designs is critical.

The National Press Photographers Association (NPPA) recently announced that it is joining the other cast of characters who have filed a class action complaint against Google, claiming (as the other plaintiffs have) that Google’s “Google Book Search” program violates the copyrights of several photographers and visual artists. The other plaintiffs include individuals Leif Skoogfors, Al Satterwhite, Morton Beebe, Ed Kashi, John Schmelzer, Simms Taback and Gail Kuenstler Living Trust, Leland Bobbe, John Francis Ficara and David Moser, and associations The American Society of Media Photographers, the Graphic Artists Guild, the Picture Archive Council of America, the North American Nature Photography Association, the Professional Photographers of America, and American Photographic Artists.

Capone, an Illinois corporation, did not have authorization to use the Tommy Gun trademarks on alcoholic beverages that carry a reproduction of the Tommy Gun marks. Additionally, Saeilo claims that Capone’s infringement not only violates federal trademark law, but also Illinois state law and common law.

“Reverse payment” cases are an outgrowth of a key feature I noted in my first article on the basics of Paragraph IV Certifications: the filing of an Abbreviated New Drug Application (ANDA) by the generic drug maker with a Paragraph IV Certification is treated as a technical act of patent infringement.[2] After receiving notice of the Paragraph IV Certification, the patent owner/NDA holder has 45 days to bring suit, otherwise the FDA can move forward on approving the ANDA.[3] Conversely, if the patent owner/NDA holder does bring an infringement suit within the prescribed 45 day period, the FDA cannot approve that ANDA for 30 months, unless the patent(s) that are the subject of the Paragraph IV Certification are earlier deemed invalid or not infringed in that suit.[4]

Frito-Lay brought a lawsuit against Medallion Foods for allegedly trademark infringement, trade dress infringement, unfair competition, and dilution under United States Trademark Act. Frito-Lay also alleged willful patent infringement under the patent laws of the United States.

In its amended complaint Frito-Lay alleged that Medallion Foods’ tortilla chips result from processes, which infringe one or more claims of United States Patent No. 6,610,344 either literally or under the doctrine of equivalents. Additionally, Frito-Lay contends that Medallion Foods is liable for infringing the ‘344 Patent under U.S.C. § 271, as well as the infringement being willful, entitling Frito-Lay to enhanced damages under §284.

Both sides tried to limit the scope of trial through pre-trial motion practice. On October 4, 2012, Frito-Lay filed a motion for summary judgment on Medallion Foods’ sale or public use affirmative defenses and counterclaims. Frito-Lay “contends that it is entitled to summary judgment because Defendants [Medallion Foods] failed to produce clear and convincing evidence that the chip sold by Frito-Lay in a test market had fluted edges, and all testing of a bowl-shaped chip with fluted edges occurred under confidentiality agreements.” The Court went through a thorough analysis and granted in part, and denied in part the motion.

“Carve outs” essentially involve a situation where there is an FDA approved drug for which the generic drug maker seeks to market that drug, again through an Abbreviated New Drug Application (ANDA), but instead for an FDA approved use, where also that FDA approved use is unpatented. While these “carve outs” also involve the filing of a Paragraph IV Certification, there is a slight but important twist in that Certification: inclusion of what is called a “section viii statement” that the generic drug maker “is not seeking approval for a method of use that is claimed in the patent.” When submitting the “section viii statement,” the generic drug maker must also provide a proposed label that removes or “carves out” the claimed method of use.

Patent and technology firm, Intellectual Ventures (IV), recently brought a new complaint against computer security company, Symantec, claiming that the company infringed on three of its patents. To be specific, the complaint alleges that three of Symantec’s products (Replicator, Veritas Volume Replicator, and ApplicationHA) “actively, knowingly and intentionally” infringed on three separate IV patents. Symantec was also sued as part of a different complaint by IV back in 2010, along with Trend Micro, McAfee, and Point Software Technologies.

In the complaint, Willie Gary and his team claim that HP and Palm’s infringing use of the name Chubby Checker in relation to its software application is likely to cause confusion or mistake in the minds of the artist’s long-time fans and supporters, such that it would do damage to the brand and Mr. Evans’ businesses. Additionally, if the infringement is allowed to continue, it will permit HP and Palm to benefit from profits to which they are not entitled.

A Manhattan federal jury recently ordered Nintendo Co. Ltd. to pay Tomita Technologies International, Inc. (“Tomita”) over $30 million in damages in a patent infringement case that concerned certain 3D technologies. Tomita, which originally filed the claim against Nintendo back in June of 2011, claimed that Nintendo’s 3DS hand-held video game system (which launched in March of 2011) infringed on Tomita’s patent called “Stereoscopic image picking up and display system based upon optical axes cross-point information” (also known as the ‘664 patent), which is technology that shows 3D images that can be viewed without the use of special 3D glasses. Nintendo has made it clear that it is confident that the verdict will be set aside and that it will not impact its continued sales of that gaming system or any of its other systems, software and accessories.

In January 2013, Taiwan’s InnoLux Corp. filed an appeal with the Federal Circuit, requesting the Court to overturn an award of enhanced post-judgment (“ongoing”) royalties that appeared to be enhanced, at least in part, because the trial judge took offense at an out-of-court remark made by the defendant’s CEO, after losing at trial. Following the verdict, the defendant’s CEO was quoted in a Taiwan newspaper as having said, “The issue of patent infringement is being taken too seriously sometimes.”

The complaint alleges that two ASUS products sold by Negri Electronics violate a patent that ExoTablet currently holds for combination laptop/cell phone devices: the PadFone and the PadFone 2. ExoTablet is seeking compensation for infringement, lost profits due to infringement, prejudgment interest and treble damages. Negri Electronics does not seem to be too concerned, or at least believes that it has a very strong legal case in defense. Ryan Negri said that the company was very surprised by the legal action, and that they consider the case to be “frivolous.” “The technology industry has been rife with patent trolling in recent years,” Negri said, “which we believe is a fair and accurate characterization of this current lawsuit.”

In its complaint, UA stated that Nike started an ad campaign in the latter months of 2012 that misappropriated UA’s trademark by pretty much making the phrase “I WILL” the focal point of its ads on its FACEBOOK and YouTube video pages, as well as on nike.com. In particular, Nike has used video footage in its ads that has the catch phrase superimposed throughout the video in big bold letters. UA argues that Nike was well aware of its ongoing, long-term use of the “I WILL” trademark (much in the same way that most people in the industry know that Nike is well known for its phrase “JUST DO IT”) and suggests that Nike’s use of “I WILL” not only does harm to UA but to the public as well because customers currently associate the phrase with UA.

final judgment that was made by the New Jersey District Court in favor of Tetris Holding with respect to its copyright and trade dress infringement claims against Xio Interactive, Inc., I would issue this obvious warning: Copycats Beware.