Judge Kelley continued to hammer at the litigation misconduct of Xiao Wei Yang Catering, this time granting the defendant’s motion that their requests for admissions be deemed admitted. She noted that the plaintiffs never responded to correspondence received on two separate occasions from the defendants relating to deficiencies in the objections and responses to the admissions, and filed a supplemental response (only after being threatened with motion practice) that contained no amended answers, only legal arguments about why the plaintiff would not agree to any of the admissions. Judge Kelley characterized these arguments as “baseless,” and specifically criticized the plaintiffs’ refusal to admit several things that were clearly beyond dispute. For example, the plaintiffs refused to admit that it had entered into a Cooperation Agreement with the defendants despite having repeatedly so alleged in is complaint. Judge Kelley also faulted the plaintiffs for refusing to answer clearly relevant requests because they were “beyond the scope” of the litigation, and for making several responses that were “nearly incomprehensible.” In addition to deeming all of the requests admitted, Judge Kelley indicated she will schedule a hearing regarding whether the plaintiffs should be sanctioned.
Araca Merchandise, the authorized seller of merchandise in connection with the U.S. tour of the artist “Pink,” brought suit against unknown sellers of counterfeit merchandise in anticipation of next week’s Pink shows at the TD Garden in Boston. Araca seeks an injunction barring the sale of unauthorized merchandise bearing the registered PINK trademark. The case has been assigned to Judge Zobel.
A number of discovery disputes boiled over in a suit involving a Chinese hot-pot restaurant chain and a Boston restaurant who had tried to become its first American franchisee, resulting in the award of sanctions against plaintiffs’ attorney. Magistrate Judge Kelley is requiring the attorney to pay the defendants’ reasonable fees and costs for their work on a motion for a protective order and to quash subpoenas issued by the plaintiffs. Limited discovery had been allowed, to determine whether a forum selection clause in the franchise agreement had been triggered, which would require the bulk of the claims to be brought in China. A series of disputes over discovery arose, in which plaintiffs’ attorney repeatedly refused to meet and confer. Among the charges were that the attorney noticed numerous third party subpoenas seeking financial discovery well outside the bounds of the limited discovery that had been permitted at a time when the defendants were negotiating a resolution of a dispute concerning plaintiffs’ attempt to get this information directly from the defendants. Judge Kelley indicated that this is an improper attempt to circumvent the legitimate objections of the defendants to the discovery, and that plaintiffs should have moved to compel if they believed the objections to lack validity. She criticized plaintiffs’ arguments that defendants lacked standing to challenge third party subpoenas as “plainly without merit.” Perhaps most damaging, plaintiff itself cross-moved for sanctions, accusing defendants’ attorney of frivolous and vexatious conduct, obstruction of discovery, and “potentially falsifying discovery documents,” an allegation that he admitted at oral argument was entirely without basis.
MAP Royalty accuses MAP Energy Solutions (“MES”) of infringing its registered MAP and stylized MAP marks, as well as common law rights in the mark, in connection with investment and management of energy projects, including renewable energy projects such as solar and wind power. MAP Royalty asserts that it manages over $2 billion in capital energy commitments, and has been using the marks since 1998. It says that MES formed in 2015, and began using the MAP trademark shortly thereafter, both as a mark and as a part of its domain names, in connection with directly competing and closely related services. The case is before Judge Woodlock.
Oomph Hair filed suit against Hair Illusions and its founder, Salvatore Passariello, accusing them of infringing Oomph’s trademark, cybersquatting, falsely disparaging Oomph products, and other forms of unfair competition, as well as seeking declaratory judgment that Hair Illusion’s “hairline enhancement” trademark application is invalid as merely descriptive. Hair Illusions is purported to control 90% of the real hair fiber market (real hair fiber is, as near as I can tell, small hair fibers, that are temporarily adhered to natural hair, making thinning hair look fuller). Oomph claims that Hair Illusions uses unfair and tortious means to maintain this market share, such as threatening Oomph and Oomph customers with patent lawsuits, despite having no patent to assert (Passariello had a pair of application undergoing prosecution at the time; they have since gone abandoned). Oomph also asserts that Hair Illusion registered domain names confusingly similar to Oomph’s registered HAIR FUSION trademark, which disparage Oomph’s product (e.g., alleging that the product contains parasites) and redirect customers to Hair Illusion’s on-line store. Oomph seeks preliminary and permanent injunctive relief, transferal of the offending domain names, and monetary damages. Oomph filed a motion for a preliminary injunction concurrently with the filing of the complaint. Judge Zobel scheduled a hearing on the motion for March 28.
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.
CR Associates sued Selfstorage and Sparefoot, Inc. (and a third party, since voluntarily dismissed), alleging state and federal trademark infringement and unfair competition relating to defendants’ alleged use of CR’s “Cross Road Storage” mark to boost defendants’ Google search results and to indicate, on defendants’ website, that CR’s self-storage facility is unavailable and redirect viewers to other storage sites under contract with the defendants. Judge Sorokin granted Selfstorage’s motion to dismiss for lack of personal jurisdiction, finding that Selfstorage merely licensed use of its “selfstorage.com” domain name to Sparefoot for a licensing fee, which was insufficient to demonstrate purposeful availment of Massachusetts. He granted Sparefoot’s motion to transfer pursuant to a forum selection clause in a contract between CR and Sparefoot executed on February 2, 2017, and denied CR’s emergency motion to amend its complaint as futile, as nothing in the amended complaint limited the allegations to the period prior to the execution of the agreement. Judge Sorokin rejected CR’s argument that the terms of service that included the forum selection clause could not be applied, finding the on-line terms’ notification and affirmative requirement of agreement sufficed to render the term enforceable. He likewise rejected CR’s argument that the requirement person executing the agreement on CR’s behalf lacked authority to bind CR, finding that the person had implied authority to do the acts required to enter into the agreement the company had asked him to enter into, and that the conduct of CR’s principal following the execution of the agreement was consistent with having conferred such authority. The case was transferred to the Western District of Texas.