DR Media Holdings and its wholly-owned subsidiary, DealerRater.com, LLC, sued Saskatchewan resident Dan Robinson, alleged to be the founder and operator of Dealeradar, Inc., for trademark infringement. DR Media’s website, www.dealerrater.com, is asserted to be a leader in the field of automotive consumer reviews on dealers and service centers, while its subsidiary, DealerRater.com, offers online reputation management and monitoring services for automotive dealers. DR media alleges that the defendant also offers reputation management and social media services for automobile dealers under the DEALERADAR name at its website, www/radaresults.com/automotive, and that it also owns the domain name www.dealeradar.com, which Mr. Robinson previously used for the business and which, since being notified of DR Media’s rights, redirects users to the current site. DR Media further alleges that Mr. Robinson falsely uses the trademark registration symbol ® in association with the DEALERADAR mark, despite not having a registration. Aside from trademark infringement, DR Media brings claims for false designation of origin, unfair competition, and violation of the Massachusetts Consumer Protection Act (Ch. 93A).
Canon initially sued Avigilon for infringement of five Canon patents in New York; it voluntarily dismissed that complaint after Avigilon gave notice that it intended to move to transfer to Massachusetts. Canon immediately refiled in the Northern District of Texas on October 5, 2017, alleging infringement of five Canon patents. Later that day, Avigilon brought this declaratory judgment action in Massachusetts on the same five patents, which Canon promptly moved to transfer to N.D. Texas. Avigilon, contending that venue is not proper in Texas and that other factors should create an exception to the “first-to-file” rule, moved for an expedited determination on Canon’s motion to transfer, seeking to have resolution before the date by which it must answer the Texas complaint (presumably with a motion to dismiss or transfer on the same grounds). Judge Talwani denied this motion, noting that the Northern District of Texas, as the court in which claims relating to the five patents was first raised, should be the court to determine whether venue is proper and whether any exceptions to the first-to-file rule apply. Judge Talwani stayed the Massachusetts case pending determination by the Texas court on any venue or transfer related pleadings or motions in the Texas case.
Audi and Volkswagen sued PartsPlaza, Wheel2power Corp., Rennsport Imports, LLC, and several indviduals asserted to own and operate these businesses for trademark infringement, dilution, false designation of origin, and counterfeiting Audi and VW trademarks “in nearly every facet of their business operations” as well as cyberpiracy. According to the plaintiffs, the defendants manufacture, import and sell aftermarket parts, such as grille covers, cigarette lighters, and other automotive badging bearing Audi or Volkswagen registered marks. Moreover, at least one of the defendants is alleged to do business as “DubStop Imports” and “Dubstop International” and to use domain names including the phrase “dubstop,” infringing on Volkswagen’s “V-DUB” mark and form the basis of the anticybersquatting/cyberpiracy count.
Global Protection, a condom and reproductive health aid manufacturer, sued Sooka for declaratory relief relating to ownership of intellectual property connected with prophylactic dams. According to the complaint, Global purchased the assets of Glyde Health Pty. Ltd. in 2015, including the rights to Australia’s Glyde Health’s prophylactic dams, the associated trademarks and goodwill, and associated 510(k) Premarket Notification FDA submissions and supporting documentation. The FDA’s Premarket Notifications had been issued in the name of Glyde Health’s former U.S. distributer, Glyde USA, Inc., who is alleged to have transferred them to Glyde Health in 2014. Sooka, a customer of Glyde USA who resold Glyde products, entered into an agreement with Glyde Health to distribute condoms, but not prophylactic dams. Over the course of several months in 2015, Sooka sought to purchase rights to the FDA Premarket Notifications from Glyde Health as part of a bid to obtain North American rights to the product; the negotiations fell through, however, and Global purchased U.S. rights to the product in October 2015. At that point, Sooka claimed that it had acquired the rights to the product directly from Glyde USA prior to the transfer to Glyde Health. Both parties filed for trademark protection on SHEER GLYDE DAMS, with Sooka receiving the registration. The suit was filed after Global received a cease and desist letter from Sooka. Global seeks a declaration that it is the sole owner of the Premarket Notification, that it received the legal rights to the SHEER GLYDE DAM mark, and that it has not infringed any valid Sooka mark, as well as findings of unfair competition, unjust enrichment, and conversion.
The Literacy Lab (“TLL”), a nonprofit organization that provides literacy services to low income students, filed a declaratory judgment action, seeking a declaration that it is not infringing copyright in Fastbridge’s earlyReading and CMBreading assessments. TLL had previously been served a subpoena in a Minnesota suit brought by the defendants against a nonprofit partner of TLL who provided TLL with the Reading Corps program and model that is accused in the Minnesota suit, creating declaratory judgment jurisdiction. TLL asserts that the reading assessment tools are not protectable under copyright law because any such copyright would encompass the underlying ideas rather than the form of expression and under the merger doctrine.
Continuing the ASCAP theme, WB Music Corp., Milksongs, and Hunglikeyora Music filed suit against the owners and operators of Louie’s Lakehouse of Southwick Massachusetts, alleging infringement of the songs “Shut Up And Dance,” “And So I Know,” and “Drive” by allowing them to be performed in the restaurant on July 16, 2017. According to the complaint, ASCAP representatives tried on over sixty occasions since 2008 to contact the defendants to offer an ASCAP license, all of which were refused. This is one of six ASCAP-styled suits naming at least one of the same plaintiffs that were filed yesterday in Illinois, Louisiana Maryland, and Wisconsin as well as Massachusetts.
I would note that the performances of the Hendrix songs just referenced took place on July 14, 2017, and that the road from Southwick, located just west of Springfield, MA to Marlborough, home of the Bolton Street Pub, leads directly towards Boston – perhaps more such suits will arise in the coming days based on what appears to be a road trip taken by an ASCAP representative to explore unlicensed performance spots.
Experience Hendrix, which (according to its website) is owned and operated by members of Jimi Hendrix’s family, sued the owners and operators of the Bolton Street Pub of Marlborough, MA for allowing several copyrighted Jimi Hendrix’s songs to be performed without license. The Bolton Street Pub appears to offer entertainment most weekend nights in the form of cover bands. Experience Hendrix asserts that it is a member of ASCAP, an association that licenses performance rights to members’ copyrighted musical compositions, and that despite repeated requests, the Bolton Street pub have refused ASCAP’s license overtures. Experience Hendrix seeks an injunction preventing the Bolton Street Pub from publicly performing, causing, or permitting to be performed three particular Jimi Hendrix songs – “Fire,” “Purple Haze,” and “Stone Free” – and seeks statutory damages and attorneys’ fees.