Larry Philpot, a professional concert and event photographer from Indiana, sued Encore Unlimited, Inc., Printed Guitar Picks Limited, and numerous individuals for copyright infringement. Philpot alleges the defendants uploaded photographs he had taken of Carlos Santana, Neil Young, and Kid Rock, printing them on guitar picks, and advertising and selling them through their own websites as well as on Ebay. He seeks liability for reproduction and public display, as well as for unfair and deceptive trade practices under M.G.L. Ch. 93A. Philpot further alleges that the copyright infringement was willful, based (solely, it appears) on his allegation that the defendants tried to hide their identities by registering their domains under aliases. A review of one of the defendant’s websites (www.printedguitarpicks.com) reveals that the company allows customers to upload pictures to be printed on guitar picks, while also offering stock pictures of various artists; it is unclear from the complaint whether the former or the latter are the subject of the suit. For the latter, the website indicates that all customers submitting photographs warrant that they obtained permission from the copyright holder; it will be interesting to see whether this clause affects the willfulness decision.
DSI Assignments sued American Road Products, Installernet, Inc., Anthony Frangiosa, Stephen Witt, and unknown Does 1-100 for trademark infringement and dilution, false designation of origin, false advertising, unfair competition, breach of contract and fraud in the inducement. DSI brought suit for the benefit of creditors of Pearl Automation, Inc., which made driver assistance technology, including a rear view camera contained in a license plate frame that broadcast the video to a cell phone mounted in the vehicle. DSI alleges that Pearl entered into a sales/distribution agreement with InstallerNet whereby InstallerNet was to purchase Pearl’s entire remaining inventory. InstallerNet’s president, Frangiosa, directed delivery of these products to American Road Products; when questioned about this by Pearl, Frangiosa represented that the two entities were “the same company” and that he owned both entities. Pearl was never paid for the inventory, and subsequently ceased operations. DSI subsequently learned that, during the time that InstallerNet placed its order for the remaining inventory, its registration in Massachusetts as a foreign corporation had been suspended. DSI contends that Frangiola and InstallerNet’s other shareholders (Witt and Does 1-100) are not shielded by the corporate form and are individually liable. DSI further contends that American Road Products is an unfunded sham corporation that was set up for the sole purpose of shielding InstallerNet and its shareholders from liability, and that no such shielding should be allowed.
Ion Motion Control, alleged to be the trade name for a suspended California corporation known as Basic Micro Products, Inc., was sued by computer hardware manufacturer Performance Motion Devices (“PMD”) for trademark infringement, cybersquatting, dilution and false designation of origin. PMD owns an incontestable registration in ION for computer hardware, and owns and operates the domain name <pmdcorp.com>. PDM alleges that Basic Micro improperly selected the domain names <ionmc.com> and <ionmotioncontrol.com> and further that Basic Micro infringes the ION mark through the use of the logo:
PDM seeks injunctive and monetary relief, as well as forfeiture/cancellation of the <ionmotioncontrol.com> and <ionmc.com> web domains.
Purdue Pharma sued Collegium for infringement of U.S. Patent Nos. 9,522,919 and 9,073,933, which relate to oxycodone hydrochloride compositions and formulations. The suit is based on Collegium’s submission of a supplemental New Drug Application seeking approval for revised labeling for Collegium’s Xtampza® oxycodone extended release capsules. Purdue has been pursuing claims against Xtampza® for some time now, beginning in March 2015, and most recently on September 21, 2017, as discussed here.
John Mahoney and the Atomic Café accuse Kyle and Peter Roy and their companies Cold Brew Ventures, LLC, and Lean & Local, LLC, of trademark infringement, trade secret misappropriation, breach of contract, and various other state law claims. The complaint alleges that the defendants, who operate under the names LeanBox (which delivers vending machines and provides vending services) and Grind (which provides coffee products that are offered through LeanBox’s vending services), induced Mahoney to enter into a joint venture to produce and market his cold brew products on a larger scale. The joint venture, Cold Brew Ventures, designed and configured a production facility largely at Mahoney’s direction. The group agreed to the terms by which Mahoney would provide expertise to the venture – he was to receive a 25% equity stake in the facility and a fixed salary; yet once the facility became operational and his trade secret information had become known to them, the defendants refused to sign and unilaterally withdrew from the agreement. The defendants are accused of using two registered trademarks covering ATOMIC COFFEE ROASTERS, which Mahoney had used in his three retail shops and a manufacturing facility that makes cold brew coffee, latte, and tea. They are also accused of misappropriating proprietary information relating to Mahoney’s cold brew formulas and processes, as well as business information and contacts.
Avigilon filed suit against Canon, seeking declaratory judgment that its cameras and camera software do not infringe various Canon patents. Earlier this summer, Canon had sued Avigilon for patent infringement in the Eastern District of New York. After Avigilon indicated it would move to transfer the case to Massachusetts, Canon filed a notice of voluntary dismissal. Avigilon seeks declarations that U.S. Patent Nos. 6,580,451, 6,911,999, 7,0344,864, 7,321,453, and 9,191,630 are not infringed and are invalid and/or unenforceable.
It will be interesting to see whether the sufficiency of the pleading is challenged. The Iqbal/Twombly standard has been found not to apply to affirmative defenses, thus allowing generically pled affirmative defenses of non-infringement and invalidity to stand. Earlier this summer, however, in the case of PetEdge, Inc. v. Marketfleet Sourcing, Inc. d/b/a Frontpet (16-cv-12562), Judge Saylor dismissed similar bare-bones non-infringement and invalidity pleadings when presented as counterclaims.
The Life Is Good Company sued MyLocker.com, Namecheap, Inc., and RamNode LLC for infringing its LIFE IS GOOD trademark, as well as trademark registrations on the “Jake” and “Jackie” symbols that cover the cartoon male and female figures that appear on Life Is Good clothing and merchandise.
LIG alleges that the defendants provide services to the website www.lifeisgoodshirt.com that utilizes LIG’s trademarks and through which counterfeit LIG merchandise can be purchased. Specifically, LIG alleges that MyLocker provides the software that allowed the LIFEISGOODSHIRT operator to set up the website, process payments, and fulfill orders; Namecheap provides website/server management services; and RamNode hosts the website. (Notably, LIG is not suing the actual operator of the website/maker of the counterfeit goods, and does not identify such entity in its complaint). LIG further alleges that the latter two defendants failed to respond to complaints from LIG and thus cannot show that they have complaint procedures that meet the requirements of the Digital Millenium Copyright Act’s “safe harbor” provisions. LIG also brings counts for unfair competition and passing off, contributory trademark infringement, and counterfeiting, the last of which provides for statutory damages. In addition to the complaint, LIG moved for a preliminary injunction. Note – as of this morning, the LIFEISGOODSHIRT website appears to have been taken down.