Butler filed a complaint against Avent and O&M Halyard, Inc., seeking a declaratory judgment of non-infringement and cancellation of two trademark registrations claiming rights in the color purple for latex gloves. Butler, a manufacturer of home cleaning products, sells reusable purple latex gloves to Wegmans Food Markets, who then sells the gloves under the WEGMANS® brand. The registrations cover the color purple for “protective gloves for industrial use, and disposable nitrile gloves for use in laboratories and clean room environments,” “gloves for medical and surgical uses,” and “disposable nitrile gloves for general uses.” In April, Avent and O&M Halyard sent Wegmans a cease and desist letter, which was forwarded to Butler. After a response challenging the protectability of the color purple, Butler received a second cease and desist letter, setting up the DJ action. Butler asserts that the color purple is functional, in that laboratories use different color gloves for different areas to prevent cross-contamination or to signify the material the gloves are made of, as well as the existence of other purple gloves, asserted to preclude the color from serving as an identifier of source.
Judge Sorokin denied IvyMedia’s motion to dismiss the amended complaint, asserting that it is not responsible for the conduct alleged in the complaint. At the pleadings stage, where all factual allegations must be accepted as true, the Court cannot make the determination that IvyMedia is the improper party. He also denied both defendants’ motions to dismiss for failure to state a claim, finding the arguments to be factual in nature rather than a legal assertion that the alleged conduct fails to violate any of the cited copyright statutes.
Stellar Records, a company that obtains copyrights to songs which it then re-records as karaoke versions, sued William Urbanowski of Southbridge, Massachusetts, accusing him of purchasing computer hard drives and laptops from Mark Mann, an individual with whom Stellar is presently engaged in copyright infringement litigation in Arizona. Stellar asserts that the products bought by Urbanowski for a total of $795 contained at least 250,000 karaoke recordings, apiece, and that the cost, had Urbanowski purchased lawful copies at retail, would have been more than $741,000, and that this significant price difference should have alerted Urbanowski that the recordings were pirated copies. Stellar asserts that it owns the copyright on at least 264 of the recordings bought by Urbanowksi, and brings claims of willful contributory copyright infringement, saying that Urbanowski’s ordering of the hard drives induced Mann to create unlawful copies of the songs onto the hard drives. In addition to destruction of the accused products and an award of attorneys’ fees, Stellar seeks statutory damages of between $750 and $150,000 per work infringed, for a total of between $198,000 and $39.6 million.
Auratone is a speaker company founded by Jack Wilson in the 50’s. The company became known for monitor speakers, the “Auratone 5C and 50C Super Sound Cubes, that became the studio standard monitor speaker in the 70’s, and achieved considerable success and fame – the Auratone 5C Super Sound Cube was inducted into the National Association of Music Merchants (NAMM) Hall of Fame in 2015. While running the company, Wilson obtained a federal trademark registration on AURATONE; in 2004, however, the mark lapsed when Wilson’s failing health prevented him from filing an affidavit of continuing use; Wilson passed away shortly thereafter. His heirs attempted to continue the business, marketing and selling existing inventory, and eventually sold the business, along with the rights to the AURATONE mark to one of Wilson’s grandsons, who formed Auratone, LLC in 2013. Auratone continued to market and manufacture speakers, and filed a new trademark application for the AURATONE mark, claiming a date of first use of 1959. Aruatone accuses the defendants, a pair of companies residing in the British Virgin Islands and the Philippines, of trademark and trade dress infringement and passing off as a result of the defendants’ making knock-offs of the Super Cube speakers that utilize the AURATONE mark and the trade dress of the speakers. Auratone also challenges the defendants’ application for a trademark on the AURATONE mark, which was based on an intent to use. Of interest, the suit is being brought by law students at the Suffolk University Intellectual Property and Entrepreneurship Clinic pursuant to SJC Rule 3:03.
Boston Cancer Policy Institute (BCPI) sued Indonesian company Carmige and its owner, Karnadi (first name unknown), accusing them of posting a website, https://carmige.com/boston-cancer-policy-institute.html, without BCPI’s consent. Jurisdiction is based on the site being hosted by Hostinger International Limited, which has an operation site within the United States. The Carmige site is said to falsely describe the activities of BCPI and implying that the organization is involved in nutritional and exercise work as well as the actual practice of medicine. In actuality, BCPI conducts research of new social sciences and public policy analysis as well as promotion of translational science and exchange of ideas in the field of cancer medicine. BCPI’s complaint was filed by the corporation itself, which may be a problem – corporations are generally required to have an attorney and cannot represent themselves in court.
ASM Assembly Systems filed a second patent infringement lawsuit against Medway’s QTS Engineering, accusing QTS of infringing U.S. Patents 8,490,545, 8,904, 929 and 9,632,650 through the sale of QTS’ Apshen Stencil Foil Adapter System frames used for . QTS is said to advertise these frames as being designed for use with the DEK® VectorGuard® High Tension stencil frame, an ASM product. This is the second such suit in Massachusetts involving the same patents and accused product. After a claim construction ruling issued in the earlier case, ASM sought to amend the complaint to substitute the named plaintiffs from ASM Assembly Systems Switzerland GmbH and ASM Vectorguard Limited to ASM Assembly Systems Weymouth Ltd. and ASM Assembly Systems LLC, the two named plaintiffs in the instant case, asserting that this was necessary as a result of a restructuring of the companies. On May 15, 2018,QTS opposed, arguing that the amendment would be futile because at the time of filing of the first complaint, ASM Weymouth already had been assigned all rights and was the only party with standing to sue on the patents. That motion remains pending.
Since 2010, plaintiff Ronald Lackey has owned and run a company under the names “South Shore Roofing” and “South Shore Roofing and Siding.” He filed a business certificate for “South Shore Roofing & Siding” in 2011 in Cohasset. He also owns the websites www.southshoreroofing.com and www.southshore roofers.com. In March, 2016, he filed for trademark registration on “South Shore Roofing.” At or around the same time, the defendant changed its corporate name from CS MASS LOGISTICS, INC. to “South Shore Roofing, Inc.,” and it registered this name with the commonwealth of Massachusetts. Plaintiff’s application was placed on the Supplemental Register. Lackey alleges that he has lost business due to customer confusion regarding defendant’s business name, and asserts federal and state claims of trademark infringement, dilution (although no particular facts are pled to suggest that the mark is famous), violation of M.G.L. c. 93A, and violation of M.G. L. c. 110H § 13, which prohibits the unauthorized counterfeiting of a Massachusetts-registered trademark (although the complaint does not specifically allege a Massachusetts registration). The case is before Magistrate Judge Boal.