Rice v. SAJ Technologies, Inc. (19-cv-10103); Wolman v. Glide Publishing, LLC (19-cv-10104); Adler v. Her Campus Media, LLC (19-cv-10087); Mantel v. Internet ROI, Inc. (19-cv-10092); Miller v. Gorilla Radio, LLC (19-cv-10093); Craine v. Better Publishing, LLC (19-cv-10094); Cancian v. Carroll Enterprises, Inc. (19-cv-40013).

Notorious New York copyright lawyer Richard Liebowitz filed five different copyright infringement suits in Massachusetts. Liebowitz, is well known for filing hundreds of infringement suits and seeking to extract settlements without consideration of the merits of the lawsuit or the defenses asserted against them – I have personal experience with his tactics, which amounted to filing suit without first seeking to resolve matters and then simply demanding an outrageous dollar amount without explanation or justification, using the threat of the Copyright Act’s statutory damages and attorneys’ fees provisions to drive settlement. Liebowitz had yet to actually get to summary judgment or trial on any of his cases at the time, and indeed had settled virtually all the cases he filed without getting into discovery, and often without the defendant having answered the complaint. Liebowitz has been criticized by courts on several occasions and has been sanctioned for his litigation conduct, with S.D. N.Y. Judge Kaplan identifying one such filing as frivolous, and Judge Cote labelling him a “copyright troll” and imposing monetary sanctions and required Liebowitz take ethics classes. None of this is to say that the defendants did not infringe the copyrights of the plaintiffs – as Liebowitz has noted in his defense, it is very common for people to find photographs on-line and simply cut and paste the photos into their own projects, without license or attribution. The amounts sought by Liebowitz, however, vastly exceed the royalties that the photographers would have obtained, even with attorney’s fees included. The cases are split between Judges Stearns, Kelley, Saylor, Casper, Woodlock, and Young.

Pure Encapsulations, LLC v. Lean Living, Inc. et al. (19-cv-10113) and Tsalevich et al. (19-cv-10120).

Pure Encapsulations, a Sudbury company that makes and sells non-allergenic dietary supplements, sued lean Living and Tsalevich, as well as their principals, for Lanham Act and common law unfair competition, unfair and deceptive trade practices, and tortious interference with Pure Encapsulations’ agreements with its authorized resellers. Pure Encapsulations sells solely through authorized resellers and implements strict quality control requirements on their resellers. According to the complaint, the defendants operate Amazon storefronts, through which they sell Pure Encapsulation products that were purchased from authorized resellers. Pure Encapsulations asserts that the defendants mishandle these products, resulting in numerous complaints and poor on-line reviews, to the detriment of Pure Encapsulations. For example, customers complain if having received products whose safety seals had been tampered with; products with the incorrect number of pills or incorrect dosages; counterfeit products; and products that should have been, but were not, refrigerated. Pure Encapsulations seeks monetary and injunctive relief, as well as an order that the defendants take all action to remove references to Pure Encapsulation products from all sites on which defendants had listed them for sale.

Deetz Family, LLC v. Rust-Oleum Corporation (16-cv-10790).

Judge Hillman denied Deetz’s emergency motion to quash the deposition of a former Rust-Oleum employee that was noticed after the close of discovery. Rust-Oleum noticed the deposition in an attempt to obtain testimony that could be entered at trial, as the ex-employee now resides outside of the subpoena power of the court. Judge Hillman, noting that the ex-employee was more of a “friendly” witness for Rust-Oleum and that Deetz had discouraged the ex-employee from voluntarily appearing at trial, determined that the deposition was more in the guise of preserving testimony than in collecting discoverable evidence, which makes the deposition permissible despite being noticed past the close of discovery. To allow for meaningful cross-examination, Judge Hillman further ordered that Deetz would be permitted to take two hours of discovery testimony before the preservation testimony would begin.

ecobee, Inc. v. Techmatic et al. (19-10047).

Ecobee sued three Amazon sellers, accusing each of obtaining and reselling ecobee products bearing the ecobee trademark without authorization. Ecobee makes a number of automated, “smart” home control products (thermostats, light controls, and the like) which it sells only through authorized resellers. By contract, these resellers are prohibited from selling to anyone other than consumers. Ecobee asserts that the Amazon sellers obtained ecobee products either through fraud or by tortuously interfering with ecobee’s contracts with its authorized resellers. In addition to trademark and tortious interference claims, ecobee asserts unfair competition and false designation of origin. This is the second such case brought by ecobee in Massachusetts in the past several months. Judge Saris has the case.

Courts to Remain Open Through January 18

The Federal judiciary has announced that they will remain fully open through at least January 18th, pushing the date at which they will run out of money due to the shutdown back a week from their earlier estimates.  Once their existing funds dry up, the courts should remain open using limited funds provide by the Antideficiency Act, with each court making its own determination on how to handle the reduced funding status.  As yet, the U.S. District Court for the District of Massachusetts has not announced their plan, should the shutdown continue through next Friday.

Federal Courts remain open for now.

U.S. Federal Courts remain open, despite the government now being in the second week of the shutdown.  Courts are expected to remain unaffected through about January 11th, using court fees and other funding not requiring passage of an appropriations bill.  Should the shutdown linger, the Courts would continue to operate in some fashion under the Anti-Deficiency Act, with each Court determining its staffing needs.

PTO to Remain Open During Shutdown

The U.S. Patent and Trademark Office has announced that they will remain open for business as usual during the shutdown, running on fees collected over the past year.  They anticipate this lasting a few weeks, at which point they would be forced to shut down the bulk of their operations, remaining open to accept new applications but not actually examining applications.