Joseph Tomelleri charges Bears [sic] Den, a fly fishing shop, with copyright infringement and false copyright management information, accusing the shop of using his copyrighted fish illustrations without permission. Tomelleri is a biologist/artist who has created more than a thousand illustrations of fresh-water fish which can be seen at his website, http://www.americanfishes.com. He asserts that Bear’s Den has reproduced and displayed modified versions of his illustrations, with Tomelleri’s copyright management information removed and Bear’s Den copyright information substituted in its place. Tomelleri cites the access that his site provides along with the “striking similarity” of the illustrations as proof of copying. This type of proof strikes me as problematic, given that Tomelleri’s illustrations are in a highly realistic, Audobon Society-type of mold, such that it would be difficult to determine whether an accused illustration is really a derivative of his work as opposed to an independently-created illustration (or, for that matter, a copy or derivative of someone else’s independent creation). In addition to this suit, Tomelleri filed three similar suits in Michigan, as well as suits in Arizona, Arkansas, Utah and West Virginia. The Massachusetts case has been assigned to Judge Gorton.
Canon sued Avigilon earlier this year, accusing Avigilon of willfully infringing and inducing infringement of a Cannon patent covering transmission of video data. Judge Gorton has now granted Avigilon’s motion to dismiss the induced infringement and willful infringement allegations, finding that Canon’s complaint failed to plead facts sufficient to support an inference of actual pre-suit knowledge of the asserted patent by Avigilon, instead only making conclusory statements to that effect. Judge Gorton noted that there is a conflict between district courts as to whether an alleged inducer must be shown to have had knowledge of the patent prior to the filing of the lawsuit, with a minority of courts holding that post-suit knowledge (as through the complaint itself) of the asserted patent improperly bootstraps the knowledge to pre-suit acts, and more to the point, that the District of Massachusetts has limited the acceptability of knowledge through the filing of a complaint to later-amended complaints that expressly limit the inducement claims to post-filing conduct. He further found the same issues applied to the willfulness allegations, which also require proof of knowledge of the asserted patent. He therefore dismissed the inducement and willfulness claims without prejudice to allow Canon to appropriately amend the complaint, should circumstances permit.
Boise Cascade, a large lumber, wood and paper, has utilized a graphic of a tree in a circle as a trademark since 1964, and has held federal registrations for the mark since 1981. Boise Cascade accuses NE Treatment Access of infringing this mark through sales of marijuana products utilizing a similar graphic. Boise Cascade brings counts for federal and common law trademark infringement, false designation of origin, dilution under Massachusetts law, injury to business reputation, and unfair business practices. The case is before Judge Gorton.
Judge Gorton denied both parties’ motions to disqualify each other’s expert witnesses in a contentious litigation involving allegations of doctored evidence. LovePop asserts that PaperPop infringed its copyright in several designs of pop-up greeting cards. PaperPop produced documents and photographs that were alleged to show that PaperPop conceived of the designs first, but LovePop purports that PaperPop tampered with the metadata to falsely back-date the documents to the relevant date. LovePop proffered an expert who would testify as to what metadata was, the means for manipulating metadata, and that some of PaperPop’s documents could not have been created on the dates alleged because the software with which they were created had not yet been made available. PaperPop in turn proffered an expert to testify that LovePop’s expert used unvalidated testing to achieve his results and to present the results of his testing that show the tests of LovePop’s expert were unreliable and incorrect. Judge Gorton determined that both parties’ complaints were directed to the credibility of their opponents’ experts, who were otherwise both well-qualified. Accordingly, he denied both motions.
Lickerish is a British photographic syndication company that licenses professional photographs worldwide. Lickerish accuses on-line clothing retailer Rue La La of infringing its copyright in an Andrea Carter Bowman photograph of Lottie Moss, sister of supermodel Kate Moss, and of altering the digital copyright management information associated with the photograph, and accuses Metro Boston of infringing its copyright in a Richard Guaty photograph of model and Baywatch actress Kelly Rohrbach. Judge Gorton has both cases.
Office supply company W. B. Mason filed a declaratory judgment action against Dairy Queen, seeking the right to continue use of the mark BLIZZARD for paper products and spring water. W. B. Mason registered the marks BLINDING WHITE BLIZZARD 78 COPY PAPER and BLIZZARD BLINDING WHITE COPY PAPER, and sought to register the marks BLIZZARD SPRING WATER and WHO BUT W.B. MASON’S BLIZZARD SPRING WATER; the latter two applications were opposed by Dairy Queen. Settlement negotiations ensued. W. B. Mason asserts that recently, after lulling W. B. Mason to hold off on further action while his client was out of town, Dairy Queen’s attorneys filed suit in Minnesota (18-cv-00693) claiming trademark infringement and dilution. In light of this, W. B. Mason asserts that the “first-to-file” rule should not apply or, alternatively, an exception to the rule should control, and the case should proceed in Massachusetts rather than Minnesota. The case has been assigned to Judge Gorton.