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.
Caris filed suit asserting that Foundation Medicine’s FoundationOne®, FoundationOne® Heme, and FoundationACT® products infringe five Caris patents covering systems for generating reports identifying therapeutic agents for cancer treatment based on molecular profiles of the tumor. Caris alleges willful infringement, citing to statements in Foundation’s 10-K SEC filings that identify Caris as a direct competitor and that indicates that competitors “may also use their patent portfolios, developed in connection with developing their tests, to allege that [Defendant’s] products infringe their patents, and [Defendant] could face litigation with respect to such allegations and the validity of such patents.”
Janssen Biotech brought this case asserting infringement of a patent related to the manufacture of Remicade®, a biologic medicine used to treat rheumatoid arthritis, plaque psoriasis, Crohn’s disease, and other disorders involving the immune response. Celltrion moved to dismiss, on the grounds that not all co-owners of the patent were joined as plaintiffs – the assignments from some of the inventors was to “the COMPANY,” which was defined elsewhere in the assignment agreement as Centocor, the predecessor to Janssen, and Johnson & Johnson and its existing and future subsidiaries, divisions and affiliates, none of whom were named as plaintiffs. Judge Wolf, interpreting the agreement under New Jersey law, found that this language did not apply to the assignment itself. The assignment clause required assignment of any invention made by the employee “during [his] employment with the COMPANY;” yet the inventors worked for only one company and did not work for Johnson & Johnson, which created ambiguity as to what was meant. Looking to extrinsic evidence to understand what the parties to the contract intended, Judge Wolf determined that the assignment was intended to be only to Centocor, making Janssen the sole assignee. Accordingly, the motion to dismiss was denied.