In an August 24 order, Magistrate Judge Dein recommended partially granting plaintiff’s motion for default judgment of willful copyright infringement because the well-pled factual allegations of the complaint supported summary judgment, and the defendant’s absence, after having answered the complaint and knowing of the allegations, could be construed as acknowledging the truth of the allegations. The case involves a verbal agreement between two inmates to make a documentary film, titled “Word From The Joint,” designed to influence youths to avoid gang life. The agreement provided that the two would work together to make the film, and that the defendant, who was to be released before the plaintiff, would take the plaintiff’s instructions regarding distribution of the film. Once out, the defendant published the film on YouTube without having been told to do so, and then ignored Pope’s request to take it down. Regarding damages, Judge Dein denied the $50,000 award sought and instead recommended statutory damages of $5,000. This recommendation was because, even upon obtaining default judgment, the plaintiff is still required to prove actual damages, and Pope was unable to provide evidence of $50,000 in actual damages. The amount awarded was based on a review of the sales and rental prices that the film had obtained, and the limited number of times the film had been viewed on YouTube. Finally, Judge Dein recommended the Court enter a permanent injunction preventing the defendant from further distributing the film and requiring all steps be taken to remove it from YouTube. (Update – as of August 30, 2017, it no longer appears on YouTube).
Judge Zobel granted a temporary restraining order prohibiting defendants from selling souvenir and concert merchandise bearing counterfeit versions of the licensed marks of the plaintiff. Judge Zobel determined that the defendants were going to sell such merchandise, and that immediate and irreparable injury would result to the Plaintiff before the defendants could be identified and given notice. The order requires defendants to file responsive papers by August 29 and to appear before the Court on September 6th to show cause why a preliminary injunction should not be granted. The Plaintiff has the rights to sell concert merchandise bearing trademarks belonging to Lady Gaga, who is performing at Fenway Park in September.
Bravado International Group Merchandising Services, Inc., the marketing company holding rights to trademark registrations and applications owned by singer Lady Gaga, filed a preemptive infringement suit seeking to prevent various as-yet unidentified companies from selling merchandise (t-shirts, program books, hats, buttons, posters and the like) incorporating the marks at or in the vicinity of concerts given by Lady Gaga in North America. The complaint alleges that the defendants have sold similar merchandise at past shows, and includes charges for trademark infringement and false designation of origin. Plaintiff seeks injunctive relief to prevent counterfeit merchandise from being sold at or near Lady Gaga’s upcoming Fenway shows in September, as well as at her subsequent U.S. shows. The case is before Judge Zobel.
A large number of Boston cab companies filed a second amended complaint against Uber, adding ten new companies as plaintiffs to bring the total number of plaintiffs to one hundred and ninety-six. The cab companies allege that Uber controls 80% of the ride-hail market, which is defined as the “low-cost, on-demand, Ride Hail ground transportation services that originate in Boston and that seat 3-4 passengers.” The complaint is specifically addressed to “UberX,” one of Uber’s lower cost options. There are counts for unfair competition under MGL c. 93A, Section 11 and common law unfair competition for operating a transportation service without complying with the laws of Boston and Massachusetts, thus obtaining customers who would otherwise use cab services and devaluing taxi medallions; attempted monopolization, under the Sherman Antitrust Act and under M.G.L. 93A, Section 5, of the Boston “ride-hail” market (somewhat ironically alleging that the purpose of the Act is to “preserve and advance our system of free and open competition and to secure to everyone an equal opportunity to engage in business, trade and commerce for the purpose of ensuring that the consuming public may receive better goods and services at lower cost”). The original complaint followed three other complaints brought by multiple cab companies from Malden, Braintree and Cambridge, each with similar allegations.
The lawsuit follows legislative action, under which the state will impose a 5-cent fee on every trip taken with Uber and Lyft, and funnel that money as “financial assistance” to their taxi competitors. Prior to the introduction of companies like Uber and Lyft, taxi medallions in Boston were capped at 1,825, and sold for as much as $700,000 as late as 2014. In 2014, taxi medallion sold for as much as $700,000. Since the introduction of ride-hail companies, however, taxi ridership dropped about 25%, and the average price for a Boston taxi medallion dropped about 40 percent.
Judge Young, tired of discovery disputes this case, put forward a new approach on Wednesday. With five trial days coming up in early September and the parties contending that relevant documents still had not been produced, Judge Young stated that no party would be allowed to introduce into evidence anything that had reasonably been called for but not produced prior to Monday, August 21, and that he would draw an adverse inference at trial against any party found not to have produced relevant and responsive documents. Effectively, he is inviting the parties to either cooperate or to dig their own graves.
Venus Locations LLC sued FitnessKeeper, Inc., alleging infringement of U.S. Patent No. 6,442,485, titled “Method and apparatus for an automatic vehicle location, collision notification, and synthetic voice.” The plaintiff appears to be a non-practicing entity residing in Plano, Texas, and has sued at least two other companies (Inrix Inc. and Nextraq, Inc.) on the same patent in the Eastern District of Texas. The plaintiff is represented by Ferraiuoli LLC, a Puerto Rican law firm with attorneys admitted in Massachusetts.
Milk Street Cafe, a café and catering business located on Milk Street in Boston, sued CPK Media when the latter opened the “Craig Kimball’s Milk Street Kitchen” (they have since dropped the word “Kitchen”), a cooking school also located on Milk Street. Judge Casper last year denied Milk Street Café’s motion for preliminary injunction, finding it had not shown a reasonable likelihood of success. After a bench trial, the court concluded that the defendant had rebutted the presumption of secondary meaning that came with the registration of the mark “Milk Street Café,” based largely on the fact that only the defendant offered consumer survey evidence on this issue. The court also determined that there was no likelihood of confusion, in part because the only real similarity of the marks was the phrase “Milk Street” in which Milk Street Café had no trademark rights and because the goods and services – breakfast and lunch restaurant and corporate catering by Milk Street Café versus cooking demonstrations and classes by the defendant – were not similar. Judge Casper found no trademark infringement, no false association, and no unfair competition. He did, however, refuse to cancel Milk Street Café’s trademark registration, finding the defendant had not shown that it would be damaged by the continued registration of the mark.