Larry Philpot, a professional concert and event photographer from Indiana, sued Encore Unlimited, Inc., Printed Guitar Picks Limited, and numerous individuals for copyright infringement. Philpot alleges the defendants uploaded photographs he had taken of Carlos Santana, Neil Young, and Kid Rock, printing them on guitar picks, and advertising and selling them through their own websites as well as on Ebay. He seeks liability for reproduction and public display, as well as for unfair and deceptive trade practices under M.G.L. Ch. 93A. Philpot further alleges that the copyright infringement was willful, based (solely, it appears) on his allegation that the defendants tried to hide their identities by registering their domains under aliases. A review of one of the defendant’s websites (www.printedguitarpicks.com) reveals that the company allows customers to upload pictures to be printed on guitar picks, while also offering stock pictures of various artists; it is unclear from the complaint whether the former or the latter are the subject of the suit. For the latter, the website indicates that all customers submitting photographs warrant that they obtained permission from the copyright holder; it will be interesting to see whether this clause affects the willfulness decision.
DSI Assignments sued American Road Products, Installernet, Inc., Anthony Frangiosa, Stephen Witt, and unknown Does 1-100 for trademark infringement and dilution, false designation of origin, false advertising, unfair competition, breach of contract and fraud in the inducement. DSI brought suit for the benefit of creditors of Pearl Automation, Inc., which made driver assistance technology, including a rear view camera contained in a license plate frame that broadcast the video to a cell phone mounted in the vehicle. DSI alleges that Pearl entered into a sales/distribution agreement with InstallerNet whereby InstallerNet was to purchase Pearl’s entire remaining inventory. InstallerNet’s president, Frangiosa, directed delivery of these products to American Road Products; when questioned about this by Pearl, Frangiosa represented that the two entities were “the same company” and that he owned both entities. Pearl was never paid for the inventory, and subsequently ceased operations. DSI subsequently learned that, during the time that InstallerNet placed its order for the remaining inventory, its registration in Massachusetts as a foreign corporation had been suspended. DSI contends that Frangiola and InstallerNet’s other shareholders (Witt and Does 1-100) are not shielded by the corporate form and are individually liable. DSI further contends that American Road Products is an unfunded sham corporation that was set up for the sole purpose of shielding InstallerNet and its shareholders from liability, and that no such shielding should be allowed.
Abiomed sued Maquet seeking a declaratory judgment that its Impella intracardiac heart pumps do not infringe Maquet’s patents, and Maquet counterclaimed for infringement. Abiomed, believing that Maquet’s parent company, Getinge AB, controls the litigation, moved to compel the deposition of Abraham Roani, Getinge’s General Counsel, on valuation, commercialization, validity and enfoceability of the patents-in-suit. Maquet opposed, arguing that any information Roani has would be protected by the attorney-client privilege and work product doctrine, and Maquet offered a non-attorney alternative witness. Magistrate Judge Boal, noting the red flags that are raised by the noticing of deposition of the opposing party’s attorney, referred to the Shelton test adopted by the Eight Circuit, which requires there be no other means to obtain the sought information, the information be relevant and non-privileged, and the information be crucial to the development of the case. She found that Abiomed had not met the first of these criteria, particularly given the proffer of a non-attorney witness, and denied the motion without prejudice.
Maquet fared better with its motion to compel. Abiomed unsuccessfully sought to limit production to documents relating to features of the accused products that are alleged to meet the claim limitations, rather than technical information on all features of the accused products. While Judge Boal compelled production of documents related to the accused products and not just the accused features, she sided with Abiomed that requests seeking all documents “related to” particular topics were overly broad, and limited these requests to the specific examples of types of documents contained in the requests. Finally, Judge Boal required Abiomed to produce technical documents that predate the six-year limitation on damages period set forth in 35 U.S.C. § 286, because such documents go to infringement and not just to damages.
Ion Motion Control, alleged to be the trade name for a suspended California corporation known as Basic Micro Products, Inc., was sued by computer hardware manufacturer Performance Motion Devices (“PMD”) for trademark infringement, cybersquatting, dilution and false designation of origin. PMD owns an incontestable registration in ION for computer hardware, and owns and operates the domain name <pmdcorp.com>. PDM alleges that Basic Micro improperly selected the domain names <ionmc.com> and <ionmotioncontrol.com> and further that Basic Micro infringes the ION mark through the use of the logo:
PDM seeks injunctive and monetary relief, as well as forfeiture/cancellation of the <ionmotioncontrol.com> and <ionmc.com> web domains.
Purdue Pharma sued Collegium for infringement of U.S. Patent Nos. 9,522,919 and 9,073,933, which relate to oxycodone hydrochloride compositions and formulations. The suit is based on Collegium’s submission of a supplemental New Drug Application seeking approval for revised labeling for Collegium’s Xtampza® oxycodone extended release capsules. Purdue has been pursuing claims against Xtampza® for some time now, beginning in March 2015, and most recently on September 21, 2017, as discussed here.
Judge Gorton consolidated seven different antitrust actions against Uber for pretrial purposes. Each complaint asserted substantially similar claims and operative facts and involved the same defendants. The main difference in the lawsuits related to alleged violations of local transportation ordinances, and the different cases generally grouped cab companies from individual cities or towns together – I previously commented on the Boston action here. Judge Gorton reserved the question of whether to consolidate the cases for trial. He also set a schedule for Uber’s motion to dismiss, indicating that a decision will issue on the request for dismissal by the end of the year.
John Mahoney and the Atomic Café accuse Kyle and Peter Roy and their companies Cold Brew Ventures, LLC, and Lean & Local, LLC, of trademark infringement, trade secret misappropriation, breach of contract, and various other state law claims. The complaint alleges that the defendants, who operate under the names LeanBox (which delivers vending machines and provides vending services) and Grind (which provides coffee products that are offered through LeanBox’s vending services), induced Mahoney to enter into a joint venture to produce and market his cold brew products on a larger scale. The joint venture, Cold Brew Ventures, designed and configured a production facility largely at Mahoney’s direction. The group agreed to the terms by which Mahoney would provide expertise to the venture – he was to receive a 25% equity stake in the facility and a fixed salary; yet once the facility became operational and his trade secret information had become known to them, the defendants refused to sign and unilaterally withdrew from the agreement. The defendants are accused of using two registered trademarks covering ATOMIC COFFEE ROASTERS, which Mahoney had used in his three retail shops and a manufacturing facility that makes cold brew coffee, latte, and tea. They are also accused of misappropriating proprietary information relating to Mahoney’s cold brew formulas and processes, as well as business information and contacts.