The Atomic Café et al. v. Roy et al. (17-cv-11927).

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 Corporation et al. v. Canon, Inc. (17-cv-11922).

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 v. MyLocker.com, LLC et al. (17-cv-11911).

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.

Independent Film Society of Boston, Inc. v. Patrick Jerome d/b/a Boston International Film Festival (17-cv-11856).

The Independent Film Society of Boston (“IFSB”) has been running the Independent Film Festival Boston (“IFF Boston”) since 2003. The festival occurs each spring, and screens more than a hundred films in area independent art-house cinemas.  The IFSB previously sued the International Film Festival (“BIFF”) for trademark infringement and false designation of origin arising from BIFF’s use of BOSTON IFF and BOSTONIFF marks similar to the IFSB’s IFF BOSTON marks and for BIFF’s adoption of the www.bostoniff.org domain name.  IFSB alleges that BIFF falsely claimed priority in the BOSTON IFF mark, and that BIFF falsified evidence in an attempt to prove priority.  The case was successfully mediated by Magistrate Judge Bowler, and a settlement agreement was executed in May 2017.  (It should be noted that the falsification of evidence allegation was never proven or admitted to by BIFF).

IFSB now alleges breach of the settlement agreement by BIFF’s continued use of the BOSTONIFF mark in various places on its website, for example ,in the copyright notice at the bottom of every page, in numerous drop-down menus, and in background photographs. IFSB further alleges that BIFF has continued to direct traffic to its bostoniff.org website rather than directing all traffic to its bostoniff.com site and has failed to place a noticeable disclaimer of affiliation on all film submission documents, as required by the agreement.  IFSB also brings counts for breach of the implied covenant of the good faith and fair dealing, which is imposed as a matter of law in Massachusetts to all contracts, unfair competition, trademark infringement, and false designation of origin under the Lanham Act, common law unfair competition and trademark infringement; and violation of M.G.L. c. 93A.  IFSB seeks damages, trebling of damages for willfulness, punitive damages, a permanent injunction, specific corrective advertisements and notices from BIFF, and attorneys’ fees and costs.

 

Premium Sports, Inc. v. Keville et al. (17-cv-11848).

Premium Sports sued David Keville and his company Country Saloon Products, Inc., which does business as “Kelly’s Cellar” in Quincy, MA, alleging that Kelly’s Cellar unlawfully intercepted and descrambled the satellite signal of a Gaelic Athletic Association (“GAA”) football match between Donegal and Galway, which took place on July 22, 2017. Premium Sports brings counts for copyright infringement as well as violation of 47 U.S.C. §§ 553 and 605(a), which prohibit the unauthorized reception and publication of communications.  The latter statutes provide for injunctive relief, actual or statutory damages, and reasonable attorneys’ fees.

The defendants had previously been sued for pirating prior GAA matches, (15-cv-13009). The case settled after the defendants moved to vacate a finding that they were in default and awarding Premium Sports $69,387.07 in damages, fees and costs.

GAA football, also known as Gaelic football, is a team sport in which the object is to punch or kick a ball into the other team’s goal (a “goal”), for three points, or between two upright posts extending above the goal (a “point”) for one point. Galway won the July 22 match by a final score of 4 goals, 17 points (for a total of 29 points) to 0 goals, 14 points for Donegal.

Microsoft Corp. v. John Does 1-10 (17-cv-11831).

Judge Martinez of the Western District of Washington, in response to Defendants Charlie’s One Stop Computer Center, Inc. and its president, Michael Aucoin’s motion to dismiss for lack of personal jurisdiction, instead transferred the litigation to Massachusetts. The case was initially filed in June, 2016, against unknown defendants, alleging infringement of Microsoft copyrights and trademarks on software being installed using fraudulent product keys.  Discovery led to the identification of Charlie’s One Stop and Mr. Aucoin, who then moved to dismiss.  Microsoft indicated that, if dismissed, it would simply re-file here.  When the defendants admitted that jurisdiction would exist in Massachusetts, transfer was ordered.  Judge Wolf has been assigned to the case.

Washington’s long-arm statute allows a court to award attorney’s fees for a party served under the statute who prevails in the action. Judge Martinez determined that Microsoft, when first notified about the jurisdictional issue, told Defendants that it would “vigorously defend against any motion to dismiss,” and after Defendants filed the motion, that it would consent to transfer to Massachusetts only if the motion and request for fees were withdrawn.  He determined that such conduct, followed by Microsoft appearing in court and not opposing transfer, warranted the award of fees.

Purdue Pharma LP et al. v. Collegium Pharmaceutical, Inc. (17-cv-11814).

Purdue asserts that Collegium infringes U.S. Patent No. 9,693,961, which covers improved oxycodone hydrochloride compositions, both by filing an NDA and by making and selling the now-approved Xtampza® ER oxycodone extended release capsules.  This marks the latest in a series of lawsuits filed by Purdue alleging Xtampza® infringes Purdue patents.