Richard Liebowitz strikes again, filing three more copyright infringement and DMCA Violation cases in Massachusetts to go along with the seven he filed earlier this month. In these cases, as with the previous set, he alleges that copyrighted photographs were used on the defendants’ websites without license, and that digital watermarks were removed from the photographs. Each of these acts is alleged to be willful and knowing, without any further elaboration, and Liebowitz seeks actual and/or statutory damages and attorney’s fees. The cases are before Judges Boal, Saris, and Stearns.
Ecobee sued three Amazon sellers, accusing each of obtaining and reselling ecobee products bearing the ecobee trademark without authorization. Ecobee makes a number of automated, “smart” home control products (thermostats, light controls, and the like) which it sells only through authorized resellers. By contract, these resellers are prohibited from selling to anyone other than consumers. Ecobee asserts that the Amazon sellers obtained ecobee products either through fraud or by tortuously interfering with ecobee’s contracts with its authorized resellers. In addition to trademark and tortious interference claims, ecobee asserts unfair competition and false designation of origin. This is the second such case brought by ecobee in Massachusetts in the past several months. Judge Saris has the case.
Ecobee filed three trademark suits, accusing Filter Pro, The Corner Store, and Ultra Design of trademark infringement, unfair competition, false designation of origin, and tortious interference. Ecobee makes smart home control products, including light switches and thermostats, that it sells through authorized resellers who are contractually obliged to provide specific quality controls on the products sold and prevented from selling to subsequent, unauthorized resellers. Each of the defendants is an Amazon Seller Account that, despite not being ecobee authorized resellers, are alleged to have sold ecobee products. Ecobee asserts that the defendants could only have obtained ecobee inventory through knowingly soliciting authorized resellers, intentional and knowing interference with the resellers contracts and business relationships with ecobee, or through fraudulent or illicit means. They further assert that the defendants violate the ECOBEE trademark by selling actual ecobee goods without authorization. The cases are presently before Judges Stearn, Woodlock, and Saris.
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.
Plaintiff Cutting Edge Systems sued Cutting Edge Tecsolutions for poaching on its reputation and good name by opening a competing business utilizing substantially the same name. Both companies sell and install audiovisual and automation systems in area businesses and homes. Cutting Edge Systems has been operating under the “Cutting Edge” name since 1992, and has a registration on the mark. Tecsolutions is alleged to have been incorporated in 2013, but to have actually begun operations substantially later than its formation. Cutting Edge Systems cites a number of instances of actual confusion, including receipt of bills for Tecsolutions’ purchases, and asserts that Tecsolutions has on at least one occasion deflected criticism of its work on Yelp by saying that the customer must have confused them with a different company. Tecsolutions has twice refused to cease using the “Cutting Edge” mark. Cutting Edge Systems brings counts for trademark infringement and unfair competition under federal, state and common law, and seeks disgorgement of Tecsolutions’ profits as well as injunctive relief and attorney’s fees. The case was assigned to Judge Saris.
Judge Saris denied Jonathan Monsarrat’s motion for reconsideration of her grant of Zaiger’s motion to dismiss. Monsarrat became aware of Zaiger’s publication of an alteration of a copyrighted photograph of Monsarrat, dressed in an MIT mascot costume, at least as early as 2013, yet did not file suit until 2017, beyond the three-year statute of limitaitons. Monsarrat argued that the “discovery rule,” whereby the statute of limitations does not begin to run until the plaintiff knows or should reasonably know of the claim, keeps the statute of limitations from starting until after the identity of the infringer is known. Judge Saris rejected this proposition, noting that First Circuit law clearly states that a copyright claim accrues when the plaintiff knows or should reasonably know about the conduct on which the claim is based. She also noted that complaints are often filed against unknown defendants. In a separate ruling, Judge Saris rejected Zaiger’s motion for attorney’s fees, finding that Monsarrat had objectively reasonable infringement and timeliness arguments and that Zaiger’s motion was untimely, coming beyond the two-week period of time laid out in FRCP 54. Finally, Judge Saris noted that Zaiger’s conduct had been “unduly nasty.” Zaiger, who was accused of altering the photograph to associate Monsarrat with pedophilia, indicated his intention to repost the offensive photograph, and had filed the photograph to the public record before the Court could rule on Monsarrat’s known objections.
In one of the more salacious intellectual property filings I have seen, Martha’s Vineyard-based artist Leah Bassett filed suit against Mile High Media and a number of individuals associated with the company for copyright infringement, breach of contract, trespass, civil conspiracy, RICO violations, and a number of additional claims relating to the defendants’ alleged use of her Aquinnah house to shoot pornographic movies. Ms. Bassett designed the house, and decorated it with numerous works of art that she created, including paintings, sculptures, and the like. She alleges that one of the defendants rented the house during the winter of 2014 – 2015 for the purpose of making porn, without telling her of the planned use of the property and in violation of the lease agreement. When he vacated the premises before the expiration of the lease, she discovered considerable damage to the house. Subsequent investigations revealed that the house had been used as the set of a number of porn films made and distributed by Mile High Media, in which her artwork is visible – according to the complaint, some of her art was moved from room to room “in order to ‘aesthetically enhance’ their porn scenes…” She asserts willful copyright infringement, based on the defendants’ knowledge that she was a professional artist whose work would be protected by copyright law from the unauthorized reproduction of the same in the films. Ms. Bassett seeks monetary damages as well as injunctive relief to prevent further dissemination of films that include her copyrighted works of art. Judge Saris is the lucky winner of this case.