Premium Sports, Inc. v. Barbosa et al. (18-cv-11502).

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.

Jaho Inc. v. Adagio Teas, Inc. (18-cv-11451).

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.

Night and Day Furniture, LLC v. Atlantic Furniture, Inc. (18-cv-30104).

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.

Design Pics, Inc. v. Max Hartshorne d/b/a Travel et al. (18-cv-30103).

Canadian company Design Pics provides stock photographs to registered members. Design Pics obtained the rights to a series of pictures of Chinese food dishes taken by photographer Kyle Rothenborg, which were registered in a bulk registration with other works. The pictures are displayed on Design Pics’ website along with metadata indicating the photographer and the copyright status. Design Pics asserts that displayed the Rothenborg photographs without license. Design Pics claims copyright infringement and violation of the Digital Millennium Copyright Act for the removal of the copyright management metadata.

BMW of North America, LLC et al. v. Dunbar Euro-Sports, Inc. (18-cv-11395).

bmwroundelBMW sued Brockton’s Dunbar Euro-Sports for infringing BMW’s registered “roundel” trademark, which BMW has used since 1955 on automobiles and motorcycles.  BMW licenses the mark to authorized dealerships for use in connection with the sale and service of BMW products. Dunbar was on such licensee, having been authorized in 1987 to sell and service BMW motorcycles.  BMW asserts that Dunbar is using the roundel outside of the direction of BMW, apparently through the use of outdated and/or unauthorized signage, which hinders BMW’s ability to control the nature and quality of products and services provided under the mark. The complaint asserts breach of contract as well as trademark infringement, and seeks an order that Dunbar remove and destroy any BMW signage containing BMW marks, including the roundel. Oddly, the complaint does not specifically indicate how Dunbar’s use of the roundel is improper, and appears to assert that Dunbar’s dealership agreement remains in force.

Fertility Centers of New England, LLC v. IntegraMed America, Inc. (18-cv-11350).

Fertility Centers accuses IntegraMed of infringing its “IVF ASSIST” trademark. Fertility Centers began using the mark in 2011 in connection with a cost-effective in vitro fertilization program, and has promoted the program extensively, including through its website. The mark was registered in 2012, and has become incontestable. IntegraMed offers a similar program under the name “Attain IVF Assist,” and at one time simply “IVF Assist,” which IntegraMed described as inadvertent in response to a cease and desist letter. IntegraMed removed the stand-alone use of “IVF Assist,” but refused to stop using the “Attain IVF Assist” mark. Fertility Centers asserts that IntegraMed also uses the “IVF Assist” mark in metadata to drive search results to their site. In addition to trademark infringement, Fertility Centers brings claims of federal and state unfair competition and false designation of origin.

Butler Home Products, LLC v. Avent, Inc. et al. (18-cv-11263).

GlovesButler 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.