In a sibling rivalry gone wrong, American Chair accuses Restaurant Seating and Stephen DiStasio of copyright and trademark infringement, palming off, and violation of M.G.L. 93A in connection with Restaurant Seating’s alleged use of American Chair’s copyrighted photographs, trademarks, and trade dress to steer business from the former to the latter. Prior to forming Restaurant Seating, Stephen DiStasio worked for American Chair under the supervision of his brother and American Chair’s President, Michael DiStasio. Restaurant Seating is accused of using American Chair’s copyrighted photographs on its website, using confusingly similar slogans to those registered by American Chair (e.g., “We build furniture to last the life of your concept” versus American’s registered “Furniture built to last the life of your concept”), and passing off American Chair products as if they were Restaurant Seating’s offerings, including in at least one instance hiring a manufacturer to knock off an American design that had been used to sell to a Salem, MA restaurant. American Chair seeks temporary, preliminary, and permanent injunctive relief in addition to damages and attorneys fees. The case is before Judge Woodlock.
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.
Syneron, Candela Corporation, and the Massachusetts General Hospital sued a number of different entities in multiple filings in the District of Massachusetts, accusing them of infringing U.S. Patent Nos. 9,095,357 and 9,510,899, each directed to dermatological treatment and tissue reshaping. The defendants are:
– EndyMed Medical (18-cv-10678);
– Cutera, Emvera Technologies, Illooda, and Rohrer Aesthetics (18-cv-10679);
– InMode MD, Invasix, and Ivasix (18-cv-10680);
– Jeisys Medical and Perigree Medical (18-cv-10681);
– Lumenis and Pollogen (18-cv-10682);
– Lutronic (18-cv-10683); and
– Aesthetics Biomedical, Cartessa Aesthetics, and Sung Hwan E&B Co. d/b/a SHENB Co. (18-cv-10684).
Syneron claims to be the exclusive licensee to the patents for clinical applications, and to market a product, known as Profound, that practices the inventions of the two patents. The product delivers radio frequency energy through microneedles to the dermis below the skin, causing small regions of damage; the healing process produces collagen that pushes out wrinkles and smooths skin. Syneron accuses manufacturers, importers and sellers of similar devices of direct, contributory and induced infringement. Syneron claims personal jurisdiction in Massachusetts exists with respect to at least some of the defendants by way of interactive websites available in(but not necessarily directed specifically to) Massachusetts. Venue is only generally alleged, however, leaving the viability of Massachusetts as a venue for these cases uncertain. The cases are currently split among Judges Young, O’Toole, Stearns, Gorton, and Magistrate Judge Kelley.
Rothschild accuses Fingent of infringing U.S. Patent No. 7,456,872 by sales of its “ReachOut Suite,” a field service management software application. It is not clear why Rothschild, a Texas entity, is suing Fingent, a New York business, in Massachusetts, and it is equally unclear why venue in Massachusetts is appropriate, as the pleadings related to venue do not appear consistent with the TC Heartland line of cases.
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.
Judge O’Toole ruled on a pair of privilege disputes in this trade secret litigation, finding some claims of privilege to be without merit while upholding others. Lynx accuses Zebra of misappropriating real-time player tracking technology and used it to obtain a deal with the NFL that did not include Lynx. During discovery, certain e-mail chains were produced by Zebra in both keyword-searchable and non-searchable formats; redactions based on privilege were made in only one of the formats. The parties could not resolve whether the privilege claim was legitimate, leading to the filing of a motion to remove the redactions by Lynx. A first set of e-mails included communications between Zebra, Zebra’s counsel, and non-employee consultants hired by Zebra o assist in reaching agreement with the NFL. Following en camera review of the communications in question, Judge O’Toole determined that Zebra had waived privilege in these communications by sharing them with the consultants. He found that the Kovel doctrine, which extends privilege to communications with third parties that are necessary, or at least highly useful, for effective consultation between the client and the attorney, did not apply, because the redacted communications were not made for the purpose of obtaining legal advice, and instead concerned business advice. The communications also did not demonstrate that the consultants were necessary to interpret matters beyond the lawyers’ reach. He also rejected Zebra’s attempted reliance on the “functional equivalent” doctrine, by which non-employee agents of a corporation can be considered functionally equivalent to corporate employees by virtue of their close connection to the corporation, such that privilege would extend. Here, the consultants were not so closely tied to Zebra as to be equivalent to employees – they lacked longstanding relations with the company, worked remotely, were not Zebra’s sole representatives in negotiations, and were free to work for others. Judge O’Toole further noted that neither the First Circuit nor the District of Massachusetts had ever adopted or applied the doctrine. The results were different with respect to a different set of communications, with Judge O’Toole upholding the privilege in communications between Zebra executives and in-house counsel. He noted that such communications would only be privileged if they revolved around legal, as opposed to business, advice, but noted that the communications in question did address legal perspectives on issues being discussed.
Anuwave accuses cybersecurity company Sophos of infringing U.S. Patent No. 8,295,862 by means of its text security services. The ‘862 patent covers methods of enabling communications via SMS messages that list all services at a terminal station, such as a cell phone, according to meta information found at the terminal station. Anuwave specifically accuses Sophos’ mobile antitheft service, by which users who have lost their phones can enter a “locate” command and password in order to retrieve location information from the phone. Anuwave asserts that Sophos directly infringes the method claims at least when performing internal testing; it does not, however, bring contributory or induced infringement claims, leaving the question of the calculation of damages (assuming, of course, that infringement is proven) a bit up in the air.