Judge Zobel is presiding over another pre-emptive concert merchandise case, this one involving the performer Katy Perry. Blackout Merch claims the exclusive right to utilize Ms. Perry’s registered trademarks in connection with concert merchandise in North America, and seeks to prevent the sale of infringing merchandise at or around Boston’s TD Garden when Ms. Perry performs there on the 29th and 30th of September.
Polyzen sued Chicopee, Massachusetts company Dielectrics, Inc., alleging that various Dielectrics’ multi-layer film welded medical balloons infringe U.S. Patent No. 9,737,694. The patent, which issued just last month, claims methods of manufacturing medical balloons. The case is before Judge Mark Mastroianni in the Springfield division of the District of Massachusetts.
Judge Mastroianni, a Springfield native, received his commission as a judge in June, 2014. Of the five patent cases he has thus far presided over, this is the second involving Polyzen and Dielectrics. Polyzen previously sued Dielectrics on August 19, 2015, alleging infringement of U.S. Patent Nos. 7,976,497 and 8,740,845, which are also directed to medical balloons. The dispute centers around Polyzen’s distributor RadiaDyne, who has the exclusive right to use and sell covered medical balloons manufactured by Polyzen. According to the earlier complaint, RadiaDyne provided confidential and proprietary information of Polyzen to Dielectrics, who used the information to manufacture lower-cost (but infringing) balloons for RadiaDyne to sell. Polyzen sued both companies in North Carolina, but the suit against Dielectrics was dismissed for lack of personal jurisdiction, leading to the Massachusetts suit. This first case remains stayed pending the outcome of the North Carolina suit, which is currently under appeal.
Silvia Leary is the owner of a trademark registration on the stylized mark “VIA,” in which the “A” lacks the horizontal line, looking like an upside-down “V.” The identified goods and services are “fashion modelling for entertainment purposes.” Ms. Leary alleges that she has a pending copyright application on the mark. She uses the mark at her “Viasworld” website, where (among other things) she sells socks, t-shirts, and other merchandise. Berkshire developed the “Via Seaport Residences” on Fan Pier in Boston, and apparently created some “VIA” merchandising in connection with the development. Berkshire’s use has a similar “A” that lacks the horizontal line. Ms. Leary alleges that Berkshire is using the same VIA mark on hats, glasses, t-shirts and other types of items, causing customer confusion. She claims trademark and copyright infringement and unfair competition. The case is before Judge Saris.
Magistrate Judge Kelley granted defendants’ motion to dismiss the copyright infringement claims, citing the failure of the plaintiff to allege it held any validly registered copyrights and failure to identify any specific content that was alleged to be both original and copied. Trust Safe accuses its former employees of taking a confidential algorithm and using it to create a competing business, of copying Trust Safe’s website, and of tracking the website and changing its own in exactly the same way as Trust Safe’s site. Applying the Twombly standard, Judge Kelley noted that the complaint asserts that Trust Safe is the assignee of three copyright registrations, but fails to allege that the applications, together with the deposit and fees, had been sent to the Copyright Office, which is required when relying on preregistration of a copyright. She also found the failure to specify similarities between Trust Safe’s site and that the Defendant “frustrate[s] any effort to compare the parties’ materials” and thus fails to show copying. Judge Kelley also dismissed the state statutory and common law trade secret counts for failure to adequately identify the trade secrets at issue – the recitation of an “algorithm,” without specifying what the algorithm was or what it did, was not sufficient. Intentional fraud and M.G.L. 93A claims that depended on the trade secret misappropriation claim were also dismissed. Because all of the claims were deemed plausible, albeit inadequately pled, all of the dismissals were without prejudice. The case was before the Magistrate pursuant to 28 U.S.C. 636(c) and with the consent of the parties.
Rothschild accused Repsly of direct and indirect infringement of U.S. Patent No. 7,456,872, “Devise and Method for Embedding and Retrieving Information in Digital Images.” The plaintiff is a Texas entity with a place of business in Plano, Texas, home to many non-practicing entities, and appears to be exlcusively in the patent infringement business. Rothschild was registered as a limited liability company in August of 2016 by Leigh Rothschild, the sole named inventor on the patent, however, making this case at least somewhat different than many of the non-practicing entity suits we see.
In a lengthy electronic order, Judge Stearns partially granted defendant’s motion to dismiss plaintiff’s copyright infringement claim relating to accounting software. Baystate alleged that Saasant’s competing software misappropriated the look, feel, layout and flow of its own product and associated blog, and that Saasant was using a Baystate trademark. Judge Stearns found that Baystate’s complaint did not identify any actual copying of protectable elements of the software, because Baystate’s software simply employs standard layouts that represent unprotected ideas or unoriginal expression. To the extent Baystate alleged copying of the specific elements of the layouts, the two programs were not similar enough to suggest copying. Judge Stearns denied the motion to dismiss the trademark, unfair competition, and false endorsement/false association claims.
Judge Stearns granted a motion to quash subpoenas served on more than 100 of defendant’s customers that were issued after the discovery deadline. Plaintiff was pursuing indirect infringement claims against the defendant, and sought through the subpoenas to obtain discovery on direct infringement. Defendants moved for an emergency protective order on September 5th, and Judge Stearns granted the motion on September 6th, finding that a previous extension of discovery was limited to new issues raised by Plaintiff’s proposed new complaint and/or any new defenses; as Plaintiffs knew about its indirect infringement claim since at least December 2013, there was no justification for its not having sought discovery from the customers in a timely fashion. He ordered the parties to meet and confer on the best way to notify the customers that they did not need to respond to the subpoenas, with the Plaintiff to bear the costs of such notification.