Premium Sports claims to have had exclusive rights to the distribution to commercial establishments for public exhibition of the Liga Zon Sagres: Braga vs. Befica soccer match that took place on January 13, 2018 (spoiler alert – Benfica won, 3-1). Premium Sports accuses Nelia Barbosa, the owner of the Ilha Verde Café in New Bedford, of airing the match in the café without a license, using a residential receiving box for commercial purposes. Violations of 47 U.S.C. § 605, which provides for a private cause of action for the unauthorized publication of use of communications, and 47 U.S.C. § 553, which covers the unauthorized interception and exhibition of cable communications, are also alleged. Interestingly, the case was filed by the Lonstein Law Office of Ellenville, NY, who has been accused of seeking out and preying on small businesses for whom DirecTV installers mistakenly set up residential, rather than commercial, accounts; a class action suit has been filed against the firm and DirecTV in California. That case is presently stayed pending DirecTV’s appeal of the denial of its demand that the case go to arbitration. At least one other class action suit has been brought against Lonstein in New Jersey. The case is before Judge Saris.
Merchant Consulting served a third-party subpoena on Blue Square Resolutions, a Scottsdale Arizona entity, seeking documents in its trademark infringement case against Beckpat. When Blue Square failed to respond or otherwise make contact with Merchant, Merchant filed a motion for contempt pursuant to Fed. R. Civ. P. 45(g). In granting the motion, Magistrate Judge Kelley found that the subpoena was properly served by mailing it to Blue Square, noting that in Massachusetts, service is proper where effectuated by a means reasonably calculated to complete delivery and the respondents had actual notice of the subpoena. She found that Massachusetts was the proper forum to enforce the subpoena, because the subpoena called for documents to be produced in Massachusetts, making this state the district where compliance was required, particularly given that Blue Square never raised an objection to production in Massachusetts. Having found Blue Square in contempt, Judge Kelley ordered Blue Square to comply with the subpoena within ten days, with a recommendation to the District Court that failure to do so should result in an order to show cause why monetary sanctions should not be imposed. She further recommended that Blue Square be ordered to pay Merchant’s legal fees associated with bring the motion for contempt.
Following the trial in this case, in which Abhai was found to infringe a pair of Shire’s reissue patents and to have committed litigation misconduct warranting the award of attorneys’ fees (as well as a $30,000 sanction payable to the Court for wasting the Court’s time), Judge Young awarded fees of $1,501,455.32. He cut some time that would have been incurred regardless of the misconduct and for time spent on motions to compel that were not granted, reducing the award by $833k from what Shire had sought. The case will soon be in condition for appeal.
Jaho sued Adagio Teas for infringement of Jaho’s ZODIAC TEA trademark. Jaho began using the mark in 2004 and obtained an incontestable federal registration on the mark. Jaho asserts that Adagio Teas sells a line of tea blends that it calls “the Zodiac Series,” and uses “Zodiac” and “Zodiac Gifts” on its website in connection with tea blends. Jaho brings claims of state and federal trademark infringement and unfair competition. The case is assigned to Judge Zobel.
Upaid filed suit against Superwash in April, accusing Superwash of infringing Upaid’s 8,976,947 patent through Superwash’s cashless laundry system. Judge Stearns granted Superwash’s motion to stay the litigation pending the outcome of Upaid’s Illinois infringement suit against CCI, the manufacturer of Superwash’s payment systems. He found that staying served judicial economy because the cases involved substantially similar claims and because Superwash agreed to be bound by issues of fact and law finally resolved in the Illinois action.
Richard Sobol filed this copyright infringement case in November, alleging that the defendants used a number of his photographs in a documentary concerning Barney Frank and seeking statutory damages. In June, the defendants filed their Answer and Counterclaims, asserting that Sobol made false statements to the Copyright Office in registering nine of the subject photographs just prior to filing suit. Specifically, the defendants allege that Sobol misrepresented that three of the photos had not previously been published, misidentified the date on which two of the photos were taken, and incorrectly identified himself as the photographer on three of the photos. They assert that Sobol’s submission to the Copyright Office did not include direct copies of the 1982 photographs, but instead screenshots from the defendants’ 2015 documentary (noting that three of the submitted photographs even included the pointer from a computer mouse, which would not have existed in 1982, the date the photographs were alleged to have been taken). They further allege that the tenth accused photograph is not the same as the one in the earlier registration Sobol was asserting as the basis for statutory damages. In response, Sobol withdrew his allegations concerning six of the photographs but continued to assert the remaining four. Defendants seek cancellation of the 2017 registration and a declaration that their use of the photographs was fair use under copyright law, and bring counts for violation of M.G.L. 93A and abuse of process. Sobol denies these allegations in his recent Answer to the Counterclaims.
While I don’t know what actually happened here and offer no opinion on the merits of this particular case, I would note that there is a growing trend of copyright cases being filed involving the use of photographs. This trend appears to stem from the increasing sophistication of software in identifying duplicates of an image on-line. Threats of suit follow, with the possibility of high statutory damages and attorneys’ fees used to extract settlements that far outweigh the actual value of the photograph and with no consideration of the nature of the use of the photograph. Often, these threats come through copyright assertion entities or law firms that specialize in this type of work, with no real proof of ownership or rights in the putative plaintiff.
Night & Day filed suit against Atlantic Furniture, accusing it of infringing U.S. Patent No. 9,993,088, which covers foldable beds that have the appearance of furniture when folded. Night & Day sells its Clover Murphy Cabinet Bed, that it marks with the ‘088 Patent.
Night & Day asserts that Atlantic Furniture’s Madison Murphy Bed Chest infringes the ‘088 patent. Interestingly, the complaint compares the accused bed against two of the patent’s figures, rather than to any particular claim.