Pure Encapsulations, a Sudbury company that makes and sells non-allergenic dietary supplements, sued lean Living and Tsalevich, as well as their principals, for Lanham Act and common law unfair competition, unfair and deceptive trade practices, and tortious interference with Pure Encapsulations’ agreements with its authorized resellers. Pure Encapsulations sells solely through authorized resellers and implements strict quality control requirements on their resellers. According to the complaint, the defendants operate Amazon storefronts, through which they sell Pure Encapsulation products that were purchased from authorized resellers. Pure Encapsulations asserts that the defendants mishandle these products, resulting in numerous complaints and poor on-line reviews, to the detriment of Pure Encapsulations. For example, customers complain if having received products whose safety seals had been tampered with; products with the incorrect number of pills or incorrect dosages; counterfeit products; and products that should have been, but were not, refrigerated. Pure Encapsulations seeks monetary and injunctive relief, as well as an order that the defendants take all action to remove references to Pure Encapsulation products from all sites on which defendants had listed them for sale.
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.
Audio company Kicker sued Techtronics, theXmarketing.com, and Amazon resellers Techtronics Inc. and Amazing Dealzzz, accusing the defendants of improperly selling Kicker products, using Kicker trademarks, and altering or removing serial numbers from Kicker products that they were selling. Kicker uses the registered KICKER mark on audio components, primarily speakers, that it sells through authorized resellers. It asserts that the defendants, who are not authorized resellers, are nonetheless selling Kicker speakers bearing the KICKER trademark. The defendants did not receive Kicker training in proper installation of its speakers, and speakers sold through defendants do not come with Kicker’s warranty. Thus, according to the complaint, the defendants’ KICKER goods are materially different than those of Kicker and its authorized resellers. Kicker brings claims of trademark infringement, tortious interference with business relations in connection with defendants receiving inventories of Kicker speakers from authorized Kicker dealers, and unfair competition. It is not clear why Kicker chose to file suit in Massachusetts, given that it is an Oklahoma corporation and it asserts that defendants are located in California. The case is before Judge Zobel.
Magnesium Elektron (“MgE”) filed suit against Applied Chemistries, Inc., Brian St. Pierre and Mark Pellerin, accusing them of misappropriating trade secret processes for making etching additives used in the graphic arts industry. According to the complaint, St. Pierre and Pellerin both worked for U.S. Fluids, MgE’s contract manufacturer of etching additives, where they were exposed to the trade secret technology. Each executed a non-disclosure agreement with U.S. Fluids, and each was responsible at some point during their employment with maintaining the secrecy of the technology. St. Pierre now runs Applied Chemistries, who recently began marketing chemicals alleged to be substantially the same as MgE’s proprietary additives, and Pellerin is employed by Applied Chemistries. MgE further asserts that Applied Chemistries is selling photo engraving developer solutions under MgE’s RED TOP and HYRDO-SOLVE trademarks. MgE brings trade secret claims under the federal DTSA and the new Massachusetts trade secrets statute, as well as trademark infringement and unfair competition claims, and claims under 93A.
Eyeglass manufacturer Luxottica (and, with respect to Shun Hao, Oakley Inc.) filed trademark infringement suits against Hyde Park retailers Shun Hao and Super Discounts, accusing them of selling counterfeit Ray-Ban and Oakley sunglasses. Luxottica sells RAY-BAN sunglasses through LensCrafters, Pearle Vision and ILORI, as well as other entities throughout the world, and Oakley has likewise sold sunglasses bearing the OAKLEY or “O” mark through its own and affiliated stores worldwide. Plaintiffs have engaged, at least recently, in investigating retailers throughout the country and enforcing their trademarks through litigation, with a large number of suits having been filed elsewhere. Apparently, their investigators have now hit Massachusetts, with these suits at the vanguard. They bring a single count for trademark counterfeiting, and seek exemplary damages as well as monetary and injunctive relief.
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.
Judge Casper granted Defendants’ renewed motion for attorneys fees, finding the case exceptional under 35 U.S.C. § 1117(a), which allows for the award of fees to the prevailing party in exceptional cases. She had previously granted summary judgment in favor of the Defendants on all issues. Judge Casper, applying the Supreme Court’s 2014 Octane Fitness guidance in the analysis of whether a patent case is “exceptional” pursuant to 35 U.S.C. § 285, found that sanctions had already been imposed on the Plaintiff for their litigation conduct, repeatedly failed to meet court-imposed deadlines, submitted filings that failed to provide sufficient support for their positions, and otherwise engaging in unreasonable conduct. Moreover, she determined that the plaintiffs’ substantive positions following the completion of discovery were weak and that they failed to produce any evidence of damages. Judge Casper found that Defendants need to be compensated for discovery-related motion practice and for prolonging litigation after discovery through summary judgment. She ordered Defendant to submit its request for fees from the denial of their motion to dismiss forward, excluding fees that had already been awarded through discovery sanctions.