Posted On: May 29, 2008

Los Angeles, CA - Lawsuit Filed On Behalf Of Model To Stop Use Of Her Image, Photograph, Likeness In Association With Cosmetic Medical Company Removed To Federal Court – Cal. Civ. Code 3344

Los Angeles, CA – A lawsuit was filed in the Los Angeles Superior Court alleging misappropriation of likeness/image for commercial purpose under Cal. Civ. Code § 3344 and unfair competition under the Lanham Act §43(a) (15 U.S.C. § 1125). Pamela Paulshock, an actress and model, alleged that defendant Heavenly Cosmetic used her photograph – without her authorization or compensation – in advertisements for its services in the field of cosmetic medical care and services published in L.A. Weekly Magazine. Based upon the federal cause of action under 15 U.S.C. § 1125, defendants filed a notice of removal under 28 U.S.C. § 1441(b) to move the case to the Federal District Court in Los Angeles, where the case is pending. The complaint alleges that “Plaintiff is the attractive female in the Defendant’s advertisement, is the focal point of the label, and is clearly visible and recognizable to the naked eye. At no time prior to or after the image was published, did Plaintiff consent to her image being published by the Defendant in this manner, nor to any agent or employee of the Defendant.” The complaint also asserts causes of action for invasion of common law right of privacy (unauthorized misappropriation of image/photograph) and unfair competition under Cal. Bus. & Prof. Code § 17200. The case is titled Shamshock v. Heavenly Cosmetic Medical SPA, CV08-03347 R (C.D. Cal. 2008).

Posted On: May 28, 2008

Jewelry Patent Claim Construction (“Markman”) Ruling Issued By The Court In Jewelry Patent Infringement Lawsuit - Attorneys

In a jewelry patent infringement lawsuit pending at the Federal District Court for the Northern District of California, after oral arguments by each party’s patent attorneys at the Markman hearing, the Court issued its claim construction ruling interpreting the disputed claims of U.S. Patent Nos. 6,928,734 (“the ’734 patent”), 6,990,736 (“the ’736 patent”), 7,032,314 (“the ’314 patent”) and 7,076,972 (“the ’972 patent”). The patents cover jewelry rings made of tungsten carbide and a method for making such jewelry rings. The ’736, ’314, and ’972 patents are continuations-in-part of unasserted U.S. Patent No. 6,062,045, titled “Wear Resistance Jewelry.”

jewelry-patent-attorney-design-tungsten.jpgThe Court set forth the legal standard for claim construction as a question of law to be decided by the Court. Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995), aff’d 517 U.S. 370 (1996). The patentee’s use of a claim term in the specification is highly relevant to understanding the proper context in which the term is used. Phillips v. AWH Corp., 415 F.3d 1303, 1315 (Fed. Cir. 2005). The specification is the “single best guide to the meaning of a disputed term.” Id., citing Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996).

Following these controlling cases in the patent claim construction arena cited above, the Court adopted some of each party’s proposed claim interpretations and, in one instance, the Court adopted a modified combination of each party’s proposed claim construction. The Court’s ruling is available here. The case is titled Trent West v. Jewelry Innovations, Inc., CV07-1812 JF (N.D. Cal. 2007).

Posted On: May 27, 2008

Glendale Copyright Attorneys Filed A Copyright Infringement Lawsuit On Behalf of Fox And Warner Brothers Over Internet Sales Of Movies

Glendale, CA – Copyright attorneys representing Twentieth Century Fox Film Corporation and Warner Bros. Entertainment, Inc. filed a copyright infringement lawsuit at the Federal District Court in Los Angeles over alleged infringing sales of each company’s movies. The complaint itemizes each company’s motion pictures which have been registered with the U.S. Copyright Office. The Plaintiffs allege that the defendant does business on the Internet, under the iOffer username “Neighborhood-Blockbusters” and has “copied, reproduced, distributed, advertised and/or sold and continue to copy, reproduce, distribute, advertise and/or sell unauthorized copies of motion pictures owned by Plaintiffs,” which copies are allegedly counterfeit.

fox-glendale-copyright-attorney-infringement.jpgPlaintiffs have purchased copies of the movies sold by the Defendant and have determined that the “packaging fails to conform with packaging characteristic of Plaintiffs’ home video product and the disk does not contain the file structure characteristic of legitimate product.” Plaintiffs state that their damages cannot yet be determined and they may elect between the profits generated by the defendants or statutory damages under 17 U.S.C. § 504. Plaintiffs also request that the damages be enhanced because the Defendant’s alleged infringement is willful and intentional. Plaintiffs also request that their attorneys’ fees and other costs in connection with the prosecution of its claims be paid by defendant pursuant to 17 U.S.C. § 505. The case is titled Twentieth Century Fox Film Corp. v. Cox, CV08-03151 SJO (C.D. Cal. 2008).

Posted On: May 23, 2008

Costa Mesa, CA: Patent Attorneys For Broadcom Corporation Filed A Patent Infringement Lawsuit Asserting Four Utility Patents Protecting GPS Related Inventions

Costa Mesa, CA – Broadcom’s patent attorneys filed a patent infringement complaint at the Federal District Court in Santa Ana, accusing SiRF Technology of infringing four of Broadcom’s patents. Icon states that it is “an award-winning innovator in the field of exercise equipment and provides a variety of consumer products.” Icon is the assignee of the invention covered by U.S. Patent No. 5,104,120, titled “Exercise Machine Control System.” Icon is also the owner by assignment of the invention covered by U.S. Patent No. 6,019,710, titled “Exercising Device With Elliptical Movement.” The first, U.S. Patent No. 7,310,104, is entitled “Graphics Display System with Anti-Flutter Filtering and Vertical Scaling Feature.” The next, U.S. Patent No. 6,501,480, is entitled “Graphics Accelerator.” The third, U.S. Patent No. 6,747,497, is entitled “High-Speed, Wide Bandwidth Phase Locked Loop.” And finally, U.S. Patent No. 5,525,127, is entitled “Unique Word Detector and Method for Detecting a Unique Word Within One of Several Windows Offset in Time.” The complaint alleges that SiRF sells chips which provide GPS functionality for devices and enables GPS devices to support graphics and video processing. The case is titled Broadcom Corporation v. SiRF Technology, Inc., SACV08-546 AG (C.D. 2008).

Posted On: May 22, 2008

Oxnard Trademark Attorneys File Trademark Infringement and Lanham Act (15 U.S.C. 1125) Complaint To Protect Athena Cosmetic’s Trademarks, Including Revitalash

Oxnard, CA – A trademark infringement and Lanham Act §43(a) unfair competition (15 U.S.C. 1125) lawsuit was filed by attorneys for Athena Cosmetics, Inc., at the Federal District Court in Santa Ana. Athena is the owner of USPTO trademark registrations for the Revitalash, Athena, and Athena Cosmetics trademarks.

cosmetics-trademark-lanham-act-athena.jpgThe complaint alleges that Defendants incorporated under the confusingly similar name of Athena Bioscience, also using it as a trademark, in addition to using the confusingly similar trademark of Athena Lash Serum. The complaint further asserts causes of action for unfair completion under Cal. Bus. & Prof. Code §17200, intentional interference with prospective economic advantage, intentional interference with contract, and declaratory relief under 28 U.S.C. §2201 as to the ownership of the trademarks. The case is titled Athena Cosmetics, Inc. v. Athena Bioscience, SACV08-0532 AG (C.D. 2008).

Posted On: May 19, 2008

Santa Ana, CA – Trademark, Patent, and Trade Dress Attorneys For Oakley Filed Design Patent Infringement, Trade Dress Infringement, and Trademark Lawsuit To Stop Copying Of Oakley’s Protected Sunglasses/Eyewear

Santa Ana, CA – Oakley’s trademark and patent attorneys filed a patent infringement, trade dress infringement, and trademark infringement complaint at the Federal District Court in Santa Ana to stop copying of protected sunglasses/eyewear. Oakley registered its stylized ellipsoid “O” logo trademark with the U.S. Patent and Trademark Office (“USPTO”) for use on goods in International Class 9 (e.g. eyewear, sunglasses,and goggles). Oakley also registered its stylized ellipsoid “O” logo as used on the side of a sunglass ear-stem with the USPTO. As further protection, the USPTO issued U.S. Patent No. D556,818, titled “Eyewear Components,” which protects the design and ornamentation embodied by Oakley’s Gascan sunglass.

design-patent-protect-sunglasses-oakley.jpgThe complaint alleges that Outlook Eyewear has “advertised and sold counterfeit products bearing a reproduction or copy of the trademarks, which mark is an unauthorized reproduction of Oakley’s famous ellipsoid “O” mark intended to cause a likelihood of confusion or to deceive or otherwise capitalize upon Oakley’s goodwill.” The complaint also alleges that Oakely has obtained trade dress protection in the design of its Gascan line of sunglasses because of the expenditure of large sums of money in its promotion and, as a result of which, it “has become, through widespread public acceptance, a distinctive designation of the source of origin of goods offered by Oakely and an asset of incalculable value as a symbol of Oakley and its quality goods and good will.” In addition to preliminary and permanent injunctions, Oakley seeks monetary damages and its attorneys’ fees. The case is titled Oakley, Inc. v. Outlook Eyewear Company, SACV 08-00439 JVS (C.D. Cal. 2008).

Posted On: May 16, 2008

Los Angeles, CA: Patent Infringement Lawsuit Filed By Exclusive Licensee Of Neurography System Patent Against Pasadena Based Medical Companies

Los Angeles, CA – A patent infringement lawsuit was filed by Neurographix, an exclusive licensee of the patent at issue, in the Federal District Court in Los Angeles, accusing Pasadena based Oak Tree Medical Corporation of infringing on the licensed patent. The University of Washington is the owner by assignment of the invention covered by U.S. Patent No. 5,560,360, entitled “Image Neurography and Diffusion Anisotropy Imaging.” Pursuant to a first licensing agreement, the University of Washington granted an exclusive license to the ‘360 patent to the Washington Research Foundation. The foundation, in turn, granted an exclusive license to the ‘360 patent to Neurografix.

medical-device-patent-attorney-infringement-lawsuit-neurografix.jpgThe complaint alleges that defendants Oak Tree Medical and Dr. Jay Tsuruda are infringing the ‘360 patent by making, using, importing, offering for sale, and/or selling products and services which provide peripheral nerve MRI imaging services. It is alleged that “Defendants knowingly, willfully, and deliberately infringed and, on information and belief, continue to infringe the ‘360 Patent in conscious disregard of [Neurografix’s] and [Washington Research Foundation’s] rights, making this case exceptional within the meaning of 35 U.S.C. §285 and justifying treble damages pursuant to 35 U.S.C. §284.” Plaintiffs also seek both preliminary and permanent injunctions against further alleged infringement. The case is titled Neurografix et al. v. Oak Tree Medical Corporation et al., CV 08-02923 CAS (C.D. Cal. 2008).

Posted On: May 15, 2008

Trademark And Cybersquatting Attorneys For Buy.com File Trademark Infringement, Lanham Act Unfair Competition And Cybersquatting Lawsuit To Stop Alleged Cybersquatter Of Domain Name In Santa Ana, CA

Santa Ana, CA – Trademark and anti-cybersquatting attorneys for Buy.com filed a trademark infringement, Lanham Act unfair competition, cyberquatting, and California Business and Professions Code §17200 lawsuit in Federal District Court in Santa Ana against an alleged cybersquatter of the buys.com domain name. Buy.com has been an e-commerce company since 1997 and has operated the website buy.com to market and sell products since at least 1998. Buy.com owns three relevant trademarks related to its business, which marks are registered on the Principal Register of the USPTO. Buy.com alleges that “throughout the past 10 years, Plaintiff has used the buy.com trademarks to build and establish considerable goodwill in the online retail industry. In fact, through the use of these trademarks, Plaintiff is universally recognized as a leader in e-commerce and as a provider of superior goods and services, and is visited by over 5 million US shoppers each month.”

The complaint continues, “Defendant is the registrant of the Internet domain name buys.com [with an additional “s”]. Defendant uses the buys.com website to profit from the Buy.com trademarks. Specifically, Defendant’s buys.com website contains numerous advertisements for and/or hyperlinks to a variety of products and services that compete directly with Plaintiff, such as eBay and Dell. Upon information and belief, Defendant receives a payment when Internet users click on one or more links or advertisements on the buys.com website . . . By using the buys.com domain name that is confusingly similar to Plaintiff’s trademarks Defendant was and is creating, or attempting to create, an association between the buys.com domain name and Plaintiff, and has frustrated or diverted Internet traffic intended for Plaintiff.” The complaint asserts the following causes of action: (1) Federal trademark infringement under 15 U.S.C. § 1114; (2) False designation of origin and unfair competition under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); (3) Cybersquatting under the Lanham Act, 15 U.S.C. § 1125(d); (4) California common law unfair competition; (5) Unfair competition under California Bus. & Prof. Code § 17200; (6) Common law unfair competition; and (7) Declaratory Judgment under 28 U.S.C. §2201. The case is titled: Buy.com, Inc. v. Webmagic Ventures, LLC, SACV08-00510 JVS (C.D. Cal. 2008).

Posted On: May 14, 2008

Los Angeles, CA: Trademark Attorneys For Chiropractor File Trademark Infringement, Lanham Act 43(a) Unfair Competition, And False Advertising Lawsuit Over Google Adwords Used By Competitor

Los Angeles, CA – Chiropractor Dr. Jeffrey James’ trademark attorneys filed a trademark infringement, Lanham Act unfair competition, and a false advertising lawsuit at the Federal District Court in Los Angeles, against rival chiropractor Dr. Michael Karr, dba West Los Angeles Chiropractic. Dr. James asserts that he has provided chiropractic services under his personal name and “Westside Spine and Injury Center” – which function as his trademarks – in the Los Angeles area for over 20 years. Dr. James has also maintained a website since 2004 to attract potential consumers of his services throughout the United States and the rest of the world. The complaint states that over “the past 10+ years, [Dr. James] has built a strong following and became (sic) famous for his services, and the name 'Dr. Jeffrey James' has acquired secondary meaning as a designation of source or origin of the high quality services the [Dr. James] provides under the name 'Dr. Jeffrey James' and ‘Westside Spine and Injury Center.’”

Dr. Karr operates a website on the Internet located at westlachiropractic.com to advertise his chiropractic services in competition with Dr. James. “In or about March 2008, [Dr. James] discovered [Dr. Karr’s] use of his name ‘Dr. Jeffrey James’, in order to attract potential customers to [Dr. Karr’s] website.” Dr. Karr allegedly also used “Dr. Jeffrey James” as a “keyword trigger on the Google website by affirmatively requesting that the Google AdWords program list [Dr. Karr’s] Website when a Google user inputs ‘Dr. Jeffrey James’ as a search request, using the name ‘Jeffrey James’ in the title of the advertisements so as to attract Internet users . . . and creating the false impression that [Dr. Karr was] related to [Dr. James] (“Palming Off”) in order to induce their business or cause initial interest confusion.” In addition to a preliminary and permanent injunction, Dr. James seeks monetary damages against Dr. Karr. The case is titled: Dr. Jeffrey James D.C. v. Michael Karr, CV08-02231 GPS (C.D. Cal. 2008).

Posted On: May 13, 2008

Santa Ana, CA: Patent Attorneys For Icon Health & Fitness, Inc. Filed A Patent Infringement Lawsuit Asserting Two Utility Patents Against Corona, CA Based Nellie’s Exercise Equipment, Inc. and Octane Fitness, LLC

Santa Ana, CA – Icon Health & Fitness, Inc.’s (“Icon”) patent attorneys filed a patent infringement complaint at the Federal District Court in Santa Ana, accusing Corona, California based Nellie’s Exercise Equipment, Inc. and Octane Fitness, LLC of infringing two of Icon’s patents. Icon states that it is “an award-winning innovator in the field of exercise equipment and provides a variety of consumer products.” Icon is the assignee of the invention covered by U.S. Patent No. 5,104,120, titled “Exercise Machine Control System.” Icon is also the owner by assignment of the invention covered by U.S. Patent No. 6,019,710, titled “Exercising Device With Elliptical Movement.”

patent-attorneys-exercise-equipment-lawsuit.jpgIcon alleges that both defendants infringe on both of the patents through the manufacturing, importing, and/or sale of the Octane Fitness Q47 Series exercise device. “The conduct of [Defendants] as set forth hereinabove gives rise to a claim for infringement of the Asserted Patents, pursuant to at least 35 U.S.C. §§ 271 and 281. Icon also asserts that it “is entitled to injunctive and monetary relief against [defendants], pursuant to 35 U.S.C. §§ 283, 284, and 285. The case is titled Icon Health & Fitness, Inc. v. Octane Fitness, LLC, et al., SACV 08-00437 CJC (C.D. Cal. 2008).

Posted On: May 12, 2008

Los Angeles, CA: Trademark And Copyright Attorneys For Guru Denim/True Religion Apparel Sue To Stop Copying Of Jeans And To Protect Against Fakes/Counterfeits

Los Angeles, CA – Trademark and copyright attorneys for Guru Denim, a subsidiary of True Religion Apparel, filed a trademark infringement, copyright infringement, and Lanham Act § 43(a) unfair competition (15 U.S.C. § 1125) complaint at the Federal District Court in Los Angeles to stop copying of its jeans and sales of fakes and counterfeits. Guru Denim has sought copyright, patent, and trademark protection on its garments and jeans. Guru Denim owns U.S. Patent No. D547530 for the stitch pattern applied to True Religion Brand Jeans pants. Guru Denim owns two U.S. Copyright Registrations for the True Religion Brand Jeans Designs, Copyright Certificate of Registration numbers VA1-192-834 and VA1-301-845.

attorneys-jeans-denim-apparel-copying-trademark-design-copyright-patent-true-religion.jpgGuru Denim owns a USPTO registered trademark for the “True Religion Brand Jeans World Tour Fashion for the Senses Section Row Seat.” Also, Guru Denim “owns registered United States trademarks in the pocket stitching pattern that appears on True Religion Brand Jeans pants and the overall stitching pattern on the front of True Religion Brand Jeans pants.” Guru Denim also has 4 USPTO registered trademarks for “True Religion Brand Jeans” with assorted designs. Finally, Guru Denim has registered its “True Religion” word marks with the USPTO. Guru Denim’s “line of ‘super-premium’ denim wear, which ranges in retail price from $170.00 to in excess of $300.00, is acclaimed in the fashion industry due to its famous name recognition which represents quality and distinguished craftsmanship. Each piece of clothing or pair of denim distributed under the Mark bears an emblem of a smiling Buddha strumming a guitar and, in some occasions, is elaborately embroidered.”

Guru Denim discovered that numerous defendants were selling allegedly fake and counterfeit jeans on their Websites. The complaint asserts that Guru Denim's investigator purchased a True Religion pair of jeans from the denimbutt.com website for $129.00 plus a shipping cost of $1.95, where the defendant causes confusion by claiming that it is “committed to selling only first-quality, genuine designer fashions (sic) items, clothes and accessories.” The complaint continues that Guru Denim’s “inspection of the purchased item using security measures confirmed that the item Defendants sold to the investigator was in fact a counterfeit pair of True Religion Brand Jeans denim pants.”

The complaint asserts the following causes of action: (1) Federal trademark infringement under 15 U.S.C. §1114; (2) Federal copyright infringement under 17 U.S.C. §501; (3) False designation of origin under 15 U.S.C. §1125(a); (4) Trademark dilution under 15 U.S.C. §1125(c) and California Business & Professions Code §14330; (5) Common law copyright infringement under California Civil Code §980; (6) Unfair business practices under California Business & Professions Code §17200; and (7) Unjust enrichment. The case is titled Guru Denim, Inc. v. Simon Halwani, et al., CV 08-02803 FMC (C.D. Cal. 2008).

PRACTICE NOTE: Guru Denim has used different forms of intellectual property to provide the broadest possible scope of protection to its products and business. Patent, trademark and copyright protection can overlap and protect different aspects of the same product and prevent unfair competition and infringing conduct that can affect your business.

The complaint lists the following additional defendants: thedenimbutt.com, Jeans & Company, Joymic Corp., Digitally Discovered, Joseph Barsano, thedenimspa.com, denimliquidators.com, denimbuys.com, Denim Buy Liquidators, Jizzle Tech, and lovebubbleclothing.com.

Posted On: May 9, 2008

Trademark Attorneys For Professional Photographers’ Association Sued A Competitor For Infringement Of USPTO Registered Trademarks “Image USA” and “Image Expo” Used For Trade Show Services

Los Angeles, CA – Trademark attorneys for Professional Photographers of America, Inc. filed a trademark infringement and unfair competition lawsuit at the Federal District Court in Los Angeles, alleging infringement of Professional Photographers’ USPTO registered trademarks for Imaging USA and Imaging Expo. The complaint states that since 1999, Professional Photographers has used the Imaging USA trademark for trade shows in the field of professional photography and has used the Imaging Expo trademark since 2004 for trade shows.

photograph-trademark-copyright-imaging.bmpPlaintiff asserts that Defendant “Rangefinder intends to use the designation World Imaging Expo for tradeshows in the field of professional photography” and that Plaintiff became aware of the competing tradeshow when it discovered a copy of the World Imaging Expo convention program guide. Professional Photographers also discovered that Rangefinder had filed an intent-to-use trademark application with the USPTO. Professional Photographers asserts that it sent a cease and desist letter to Rangefinder over the use of the World Imaging Expo trademark, but Rangefinder refused to withdraw its pending trademark application or stop using the trademark. Thus the complaint was filed asserting causes of action for federal trademark infringement under 15 U.S.C. § 1114, false designation of origin and false representation under 15 U.S.C. § 1125(a), and unfair competition under California common law and statutes. The case is titled Professional Photographers of America, Inc. v. Rangefinder Publishing Co., CV08-02324 SVW (C.D. Cal. 2008).

PRACTICE NOTE: A proposed trademark does not have to be identical to another party’s previously registered or used trademark in order to prove infringement. If there is going to be a “likelihood of confusion” between the two trademarks, a Court will enjoin the junior trademark owner’s use of the “confusingly similar” trademark. For example, the trademark Red Shield for insurance services was held to be confusingly similar with the previously registered Blue Shield® trademark.

Posted On: May 8, 2008

Los Angeles Patent Infringement Lawsuit Filed By Attorneys For Real Estate Alliance Regarding Its Internet Patents Covering Locating Available Real Estate Properties

Los Angeles, CA – Patent attorneys for Real Estate Alliance, LLC (“REAL”) filed a patent infringement lawsuit, at the Federal District Court in Los Angeles, accusing real estate websites www.loopnet.com and www.cityfeet.com of infringing on U.S. Patent No. 4,870,576 and U.S. Patent No. 5,032,989. “The Patents describe methods for locating available real estate properties for sale, lease, or rental using a database of available properties, and displaying the approximate location of such properties on a map of an area of interest. The Patents describe zooming in on an area of interest, displaying the approximate locations of available properties within the zoomed area, and, among other things, identifying information about the available properties in that area.”

Although this concept seems commonplace today, the complaint alleges that when the inventions were made in 1986, “personal computers were in their infancy; the Internet was virtually unheard of.” The Complaint asserts that “LoopNet has infringed, and continues to infringe, the Patents by using the patented methods to display on zoom-enabled maps on its website the locations of millions of available commercial real estate property listings. LoopNet enables property owners and commercial real estate agents – on behalf of property owners and landlords – to list properties for sale or for lease and submit detailed information on property listings, such as qualitative descriptions, financial and tenant information, photographs, and key property characteristics, in order to find a buyer or tenant. Commercial real estate agents, buyers, and tenants use the LoopNet online marketplace to search for available property listings.” In addition to preliminary and permanent injunctions, the complaint seeks monetary judgments against both defendants. The case is titled Real Estate Alliance, Ltd., v. Loopnet, Inc., CV 08-02321 CAS (PLAx) (C.D. Cal. 2008).

Posted On: May 7, 2008

Copyright And Trademark Attorneys Filed A Copyright And Trade Dress Infringement Lawsuit Against Website That Provides World Of Warcraft On-Line Gaming Tips And Forum

Los Angeles, CA – Copyright and trademark attorneys filed a lawsuit, at the Federal District Court in Los Angeles, to protect plaintiff’s website, www.wowhead.com, which is designed to assist gamers of the on-line video game known as World of Warcraft. According to Plaintiff, the wowhead.com website “is one of the most recognized and utilized websites of its kind accessed by tens of thousands of individuals each day. Plaintiff has filed for and received copyright registrations from the U.S. Copyright Office for its website and certain computer code used therein. Plaintiff claims that the “design and appearance/visual presentation of the WOWHEAD website are unique in the industry and therefore constitute an inherently distinctive trade dress respecting the presentation of Plaintiff’s services all of which have resulted in a non-functional trade dress which consumers identify with Plaintiff’s wowhead website.”

design-copyright-trade-dress-world-of-warcraft.jpgPlaintiff alleges that Defendant’s website, www.wowdb.com, “essentially replicated the appearance, design, as well as certain other unique features of Plaintiff’s WOWHEAD website, in order to launch with the creation of an original website. Defendant’s website . . . like the WOWHEAD website, also caters to individuals who participate in the World of Warcraft on-line video game.” The complaint alleges that “defendant has therefore engaged in an intentional and systematic patter of trade dress infringement in violation of the Lanham Act, 15 U.S.C. Section 1125(a), trade dress dilution, and unfair competition in that” the defendant’s website caters to the same class of consumers, the confusingly similar website design, which has resulted in actual confusion among a substantial customer confusion. The complaint also asserts causes of action for common law unfair competition and statutory unfair competition under Bus. & Prof. Code Section 17200.

The case is titled Zam Network, LLC, v. Curse, Inc., CV08-02224 PSG (C.D. Cal. 2008).

Posted On: May 6, 2008

Los Angeles Patent Attorneys For Nike Filed Design Patent Infringement, Trade Dress Infringement, and Lanham Act 43(a) Unfair Competition Lawsuit Over Sales Of Allegedly Copycat Air Jordans – 15 U.S.C. 1125

UPDATE 6/18/2008: The Court entered a consent judgment permanently enjoining the defendant from selling any shoes that infringe on Nike's design patents, trade dress, and trademarks.

Los Angeles, CA – Nike’s patent attorneys filed a patent infringement, trade dress infringement, and Lanham Act § 43(a) unfair competition (15 U.S.C. § 1125) complaint at the Federal District Court in Los Angeles. Nike’s complaint recounts the beginning of Nike’s relationship with Michael Jordan and his endorsement deal, which resulted in the creation of the most famous signature shoe of all time – the Air Jordan®. When the shoes first debuted in 1985, they were initially banned by the NBA for the bold styling and color, but Michael Jordan incurred fines of $5,000 per game and wore his famous shoes. Every year thereafter, Nike unveiled a new Air Jordan model, which models have become collectors’ items and fans often line up to purchase new designs and limited re-releases of previous styles. Nike has protected the new designs of the shoes by obtaining design patents, trademarks, and trade dress rights.

The Air Jordan® VII shoe, which Jordan wore during the 1992 Olympics, was awarded U.S. Patent No. Design 325,291. The Air Jordan® XI shoe, considered one of the most popular shoes of all-time, was awarded U.S. Patent No. Design 371,898. The Air Jordan® XII shoe, which Jordan wore against the Jazz when he was ill with the flu, was awarded U.S. Patent No. Design 380,082. The Air Jordan® XIII shoe, which has sold more than 2 million pairs in the U.S., was awarded U.S. Patent No. Design 387,591 and U.S. Patent No. Design 387,850. Nike alleges that the Defendant “has sought to make a name for itself not through its own innovation, strategic investment, and design, but by explicitly appropriating the patented design and trade dress of not one, but four separate models of Air Jordan® shoes.” The complaint asserts that the Defendant “has copied the design and trade dress of the entire “upper” of each of these shoes, including the unique shape of the leather on the inside and outside of the shoe . . . the iconic lacing with exterior webbing on the shoe upper . . . the sunburst design . . . and the unique shape of the leather on the inside and outside of the shoe upper…”
Shoe-design-patent-trade-dress-Air-Jordan-XI.jpg
The case is titled Nike, Inc. v. Not For Noth’N LLC, aka Gourment, CV 08-1894 RGK (C.D. Cal. 2008).

PRACTICE NOTE: Nike has used both design patents and trade dress rights to protect its shoes’ designs. Trade dress protection continues in the design so long as the trade dress is being used by the owner; whereas, design patents expire after fourteen years. Thus, although one of Nike’s design patents has actually expired and is unenforceable, Nike can still prevent the copying of the Air Jordan® VII design by asserting its trade dress rights therein.

Posted On: May 5, 2008

Los Angeles, CA: Trademark Attorneys For T-Mobile File Trademark Infringement, Lanham Act Unfair Competition, and Breach Of Contract Claims Over Hacking, Unlocking, And Trafficking In Cellular Telephones

Los Angeles, CA – T-Mobile’s trademark attorneys filed a trademark infringement, Lanham Act unfair competition, and breach of contract lawsuit in Federal District Court in Los Angeles. T-Mobile accuses the defendants of acquiring large quantities of T-Mobile prepaid phones from retail stores such as Wal-Mart and Target, not intending to activate the phones for use on the T-Mobile wireless network. Instead, the complaint continues, the cellular phones are computer-hacked in order to unlock the phones and disable the installed software and then the phones are shipped overseas and sold as new T-Mobile phones which are operable on other cellular telephone networks. Also, T-Mobile alleges that the defendants – in order to overcome the limits imposed by retailers on the number of telephones which may be purchased by one customer – employ “runners” to make multiple purchases of the telephones at different locations.

t-mobile-logo.bmp“Defendants’ conduct, together with that of currently unknown civil and criminal co-conspirators, is causing T-Mobile to suffer millions of dollars in losses and has caused immediate and irreparable injury to T-Mobile and T-Mobile’s trademarks,” the complaint states. T-Mobile subsidizes the price of the cellular telephone and sells it below cost, but recoups the subsidy from profits earned on the sale of the prepaid airtime cards. Thus, the complaint asserts, if the phones purchased by defendants are not activated on the T-Mobile wireless network, T-Mobile is unable to recoup its costs. The T-Mobile phones are also sold subject to terms and conditions which restrict and limit the sale and use of the phones. By unlocking the phones and not activating them on the T-Mobile network, the defendants are allegedly breaching the contractual terms of purchase. The case is titled T-Mobile USA, Inc. v. All Pro Distributing, Inc., et al., CV08-02691 GW (C.D. Cal. 2008).

Posted On: May 2, 2008

Los Angeles Copyright Attorneys Sue A Brea Restaurant/Bar On Behalf Of Recording Companies For Playing Music Without A License

A Brea, CA restaurant/bar was sued for copyright infringement in Federal District Court in Los Angeles by copyright attorneys for several recording companies for publicly playing copyrighted music at the restaurant without a license from ASCAP, BMI, or SESAC. The complaint alleges that on January 11, 2008, presumably when their investigator was at Bar 330 in Brea, the three copyrighted musical compositions were publicly played and performed. Plaintiffs assert that the Brea Bar 330 will continue to publicly play and perform these songs unless they are enjoined by the Court.

The complaint alleges that ASCAP, on behalf of the copyright owners, warned the defendants that a copyright license was needed in order to publicly perform the copyrighted music at the restaurant/bar. The defendants, however, allegedly refused to pay for the license and continued to play the songs at issue. Plaintiffs request statutory damages under 17 U.S.C. § 504(c)(1), of not more than $ 30,000.00 and not less than $ 750.00 for each copyrighted song. Plaintiffs also request that the court order the defendants to pay the costs of the lawsuit and reasonable attorneys’ fees pursuant to 17 U.S.C. § 505. The case is titled: WB Music Corp., v. Corner Pockets, Inc. , CV08-01955 SVW (C.D. Cal. 2008).

PRACTICE NOTE: 17 U.S.C. 504(c)(2) provides an increase in the statutory damages to $150,000.00 per infringement if it is deemed to be intentional. Also, if a restaurant or public establishment unreasonably believed that it was exempt from licensing requirements under 17 U.S.C. § 110(5), the copyright plaintiff, in addition to other damages under section 504, will be entitled to two times the license fee which it should have paid for the preceding period of up to 3 years. Because of the varying affiliations between record companies and the licensing society, a license from each of the following licensing societies must be obtained to cover the music owned by the various recording companies:
ASCAP: 1-800-505-4052
BMI: 1-800-925-8451
SESAC: 1-800-826-9996

Posted On: May 1, 2008

Los Angeles, CA: Patent Declaratory Judgment Of Invalidity, Non-Infringement, and Unenforceability Filed By Patent Attorneys For Branan Medical Against Sun Biomedical Laboratories Over Screening Tests

Los Angeles, CA – Patent attorneys for Branan Medical filed a declaratory judgment of invalidity, non-infringement, and unenforceability lawsuit, under 28 U.S.C. § 2201, in Federal District Court in Los Angeles, against Sun Biomedical Laboratories. Sun Biomedical sent a cease and desist letter to Branan Medical accusing its Oratect III Oral Fluid Drug Screen Device, OratectPlus Oral Fluid Drug & Alcohol Screen Device, and Fastect II Drug Screen Dipstick of infringing on US Patent Nos. 6,046,058 and 6,372,516. Branan Medical, fearing that it would be sued for patent infringement, filed the instant declaratory relief action seeking the Court's ruling on the patents at issue. The case is titled Branan Medical Corporation v. Sun Biomedical Laboratories, Inc., CV 08-01944 MMM (C.D. Cal. 2008)