Los Angeles, CA – Copyright attorneys for Seoul Broadcasting Systems (“SBS”) filed a copyright infringement lawsuit in the Central District Of California (Los Angeles Division), accusing Korea International Satellite Broadcasting (“KISB”) of distributing infringing copyrighted works and sought a Temporary Restraining Order from the court. SBS’s parent company creates and produces Korean-language television programming which is initially exhibited in Korea and then provided to SBS for television and satellite distribution in the United States. In turn, SBS grants licenses to third-parties in the U.S. to distribute certain of the programs via satellite television.

los-angeles-copyright-attorney-tro-korean-kisb.jpgIn 2004, SBS and KISB entered into a series of written agreements whereby SBS agreed to supply KISB with copyrighted programs for distribution on KISB’s satellite channels. When the agreements terminated on May 31, 2008, SBS expressed to KISB its intent not to renew the distribution agreement and gave KISB until June 15, 2008 to cease distribution of the programs. KISB allegedly did not cease distribution of the programs and SBS filed suit seeking a TRO over six weeks later.

Federal Rule of Civil Procedure 65(b) provides that a TRO may be granted “without written or oral notice to the adverse party or its attorney only if: (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.” The circumstances justifying the issuance of an ex parte TRO are extremely limited. See Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006) (citing Granny Goose Foods, Inc. v. Bhd. of Teamsters, 415 U.S. 423, 438-39 (1974).

Los Angeles, CA – Trademark attorneys for Life Alert Emergency Response, Inc. commenced trademark infringement litigation, at the Federal District Court in Los Angeles, against Netstake, LLC. Plaintiff has used Life Alert® as its trademark for services and related products targeted to seniors for more than twenty years. You might remember Plaintiff’s endearing “I’ve fallen and I can’t get up” television commercials. Plaintiff has registered the Life Alert® trademark with the U.S. Patent & Trademark Office, which registration has become in contestable.

los-angeles-trademark-attorney-emergency-life-alert.jpgThe complaint alleges that “Defendant has willfully violated Life Alert’s rights in the Life Alert Mark, by using the Life Alert Mark in connection with metatags, source code and web pages for its websites. Defendant’s improper and unlawful uses of the Life Alert Mark are for the purpose of selling products and services competitive to those of Life Alert.” In addition to preliminary and permanent injunctions, Plaintiff seeks monetary damages for the alleged trademark infringement and unfair competition. The case is titled Life Alert Emergency Response, Inc. v. Netstake, LLC, CV08-05088 GHK (C.D. Cal. 2008).

PRACTICE NOTE: Professor Eric Goldman believes that “lawsuits over metatag usage are so 1999.

Los Angeles, CA – A patent infringement lawsuit was filed by patent attorneys on behalf of Roland, a Japanese corporation, at the Federal District Court in Los Angeles, accusing Wirges Percussion of infringing U.S. Patent No. 6,121,538 (“the ‘538 patent”). The ‘538 patent, entitled “Electronic Percussion Instrumental System and Percussion Detecting Apparatus Therein,” was issued by the U.S. Patent & Trademark Office on September 19, 2000. The complaint accuses Wirges of making and selling custom electronic drums that infringe on one or more claims of the ‘538 patent.

los-angeles-patent-attorney-japanese-roland.jpgThe ‘538 patent generally relates to a drum having a net-like surface, which allows better elasticity and percussion. It also allows for better detection of percussion as electrical signals and generates musical tone based on the detected electrical signals. Plaintiff alleges that the Defendant’s “infringing activities has caused and will cause Roland irreparable harm from which it has no adequate remedy at law.” Thus, in addition to monetary damages, Roland seeks preliminary and permanent injunctions. The case is titled Roland Corporation v. Wirges Percussion Systems, LLC, CV 08-04785 GAF (C.D. Cal. 2008).

Los Angeles, CA – Copyright attorneys for several motion production companies filed a copyright infringement lawsuit in the Central District Of California (Los Angeles Division) against movierumor.com. Universal Studios, Warner Bros., and New Line allege that several of their copyrighted movies – some of which are currently in theaters – are being infringed through the distribution and performance of the same on movierumor.com’s website or third-party websites which are linked to movierumor’s website: “Movierumor is a for-profit ‘one-stop-shop’ for infringing copies of Plaintiffs’ copyrighted works. Specifically, Defendants post, organize, search for, identify, collect and index links to infringing material that is available on third-party websites . . . Defendants profit from their misconduct by displaying advertisements adjacent to the infringing content (including Plaintiffs’ copyrighted works) that plays on their site.”

For research purposes only, I visited movierumor.com, clicked on the Batman: The Dark Night link, and was freely able to watch the movie on a pop-up website, although the video quality was lacking. If the MPAA is reading this, I still have my $12 theater ticket for Batman. Here’s a screenshot of the video and advertising:

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The complaint states that “in furtherance of creating and posting the index of links to infringing content, which Movierumor makes available to its users at the click of a mouse, the website allows users to submit new links to infringing copyrighted works and to report broken links . . . Defendants exercise control over the selection and organization of the links to infringing content available on their website . . . By virtue of the conduct alleged herein, Defendants knowingly promote, participate in, facilitate, assist, enable, materially contribute to, encourage, and induce copyright infringement, thereby secondarily infringing the copyrights in Plaintiffs’ copyrighted works.” The Plaintiffs allege that they gave notice to Defendants regarding the allegedly infringing videos and asked them to cease displaying the same, but Defendants have failed to do so. Plaintiffs request either actual or statutory damages under 17 U.S.C. § 504, in addition to their costs of the lawsuit and reasonable attorneys’ fees pursuant to 17 U.S.C. § 505. The case is titled: Universal City Studios Productions, LLLP v. Movierumor.com, CV08-04931 RSWL (Central District of California 2008).

Los Angeles, CA – Trademark attorneys for Red Bull filed a lawsuit at the Federal District Court in Los Angeles alleging trademark and trade dress infringement, unfair competition under the Lanham Act (15 U.S.C. § 1125), and trademark dilution. The complaint asserts that since Red Bull’s introduction in 1996, over four billion units have been sold in the United States and over one billion dollars have been spent on advertising, marketing and promoting the Red Bull energy drink. Red Bull has obtained trademark registrations at the U.S. Patent & Trademark Office for the its word marks in addition to the trade dress in its can designs.

trademark-attorney-in-los-angeles-fair-use-foosh.jpgThe Defendants manufacture and sell chocolate mint chews bearing the “Buzz Bites” trademark and mints bearing the “Foosh Energy Mints” trademark. Red Bull is not concerned about the word marks used by Defendants, but alleges that the Defendants’ use of Red Bull’s trademarks and trade dress in Defendants’ advertising and on Defendants’ website and vending machines “is likely to cause confusion before and during the time of purchase of defendants’ products because purchasers, prospective purchasers . . . are likely to be drawn to defendants’ products because they mistakenly attribute [defendants’] products to Red Bull.” Red Bull sent a cease and desist letter to Defendants, but Defendants have allegedly refused to cease the use of the Red Bull trademarks and trade dress. The case is titled Red Bull GMBH v. Vroom Foods, Inc. and Mad Dog Energy Products, CV08-04960 GAF (C.D. Cal. 2008).

PRACTICE NOTE: A competitor can assert the nominative fair use defense to protect its ability to use a trademark to refer to a trademark owner or its goods or services for purposes of reporting, commentary, criticism, and parody, as well as for comparative advertising. To qualify for the nominative fair use defense, the following three requirements must be met: (1) the trademark owner, product, or service must not be readily identifiable without use of the trademark; (2) the defendant must use only as much of the mark as is necessary to identify the trademark owner, product, or service; and (3) the defendant must do nothing that would suggest sponsorship or endorsement by the trademark owner. From the facts asserted in the complaint, the Defendants will probably interject a comparative advertising fair use defense, because they are comparing the caffeine content of their product and that of Red Bull. It appears that the first and third elements of the test are met, but the defense will probably turn on whether the second element of the test is satisfied – i.e. did Defendants use more of Red Bull’s trademarks/trade dress than was necessary to make the comparison?

Los Angeles, CA – Corporacion’s patent attorneys filed a patent infringement lawsuit in the Central District of California (Los Angeles Division), accusing Charming Shoppes and Lane Bryant of patent infringement. U.S. Patent No. 6,543,062 entitled “Pants Garment with Body Profile Enhancement Features” was duly issued by the U.S. Patent & Trademark Office on April 8, 2003. After the ‘062 patent’s issuance, it was assigned to plaintiff Corporacion.

garment-patent-attorney-clothing-pants-los-angeles.jpgThe ‘062 patent covers a pants garment with elastic components built therein to allow for an improved anatomical fit: “the pants garment is provided with a unique cut and assembly that lifts and accentuates the wearer’s buttocks. In another preferred aspect of the invention, the pants garment additionally reduces the wearer’s stomach.” Defendants sell jeans and pants under the “Secret Slimmer” trademark, which are accused of infringing the ‘062 patent: “[t]he Secret Slimmer products are not staple articles of commerce, and Defendants know or should know that these products have no substantial non-infringing uses. Defendants engage in these acts despite their actual notice and knowledge of the ‘062 patent.” In addition to monetary damages, which Plaintiff asks the Court to treble based on the alleged intentional infringement by Defendants, the Plaintiff also seeks preliminary and permanent injunctions. The case is titled Corporacion 1466, C.A. v. Charming Shoppes, Inc. et al., CV 08-04693 MMM (Central District of California 2008).

Los Angeles, CA – Copyright attorneys for dietary supplement company Iwin Labs filed a copyright infringement lawsuit, in the Central District Of California (Los Angeles Division), accusing rival nutritional company of copying its website design. The complaint asserts that in June of 2008, Iwin Labs developed and created an acai berry dietary supplement and created a website that promotes and sells the supplement. Based upon Iwin’s success, the Defendants allegedly “proceeded to copy Iwin Labs’ website and product labels, word for word, color for color, image for image (though at times making uninspired attempts to be ‘just a little’ different, but still most definitely similar enough to steal customers from Iwin Labs and wreak havoc on Iwin Labs’ customer relations).” The following are screen shots of the parties’ websites as represented in the complaint:

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The complaint continues, “what is worse, Defendants not only copied and otherwise misappropriated Iwin Labs’ intellectual property, they made an active and concerted effort to fool the public by using the exact same online marketers and advertising agents that Iwin Labs had previously used, thereby greatly increasing the probability that repeat visitors looking for the Iwin Labs website would end up on Defendants’ nearly identical web pages.” Plaintiff requests statutory damages under 17 U.S.C. § 504(c)(1). Plaintiff also requests 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: Iwin Labs, LLC v. Crush, LLC, CV08-04695 MMM (Central District of California 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. However, the Plaintiff’s state causes of action for statutory and common law unfair competition appear to be preempted by the Copyright Act and should be dismissed.

Los Angeles, CA – Trademark attorneys for Louis Vuitton filed a trademark infringement, Lanham Act § 43(a) unfair competition (15 U.S.C. § 1125), counterfeiting, and copyright infringement complaint at the Federal District Court for the Central District of California (Los Angeles Division) to protect its purse designs from being copied. The luxury goods manufacturer began selling its luggage in France in 1854 and in the United States in 1893. In 1896, Louis Vuitton created the LV monogram with three motifs (shown below) and registered it with the U.S. Patent and Trademark Office in 1932. Louis Vuitton has additional design/logo trademarks that are also registered with the USPTO. Further, Louis Vuitton owns certain copyright registrations in the U.S. Copyright Office covering its Multicolor Monogram design.

purse-design-copyright-trademark-protection-louis.jpgDefendants are alleged to have counterfeited and infringed on Louis Vuitton’s trademarks and copyrighted works by selling unauthorized goods, such as purses and handbags. Louis Vuitton alleges that “the activities of Defendants complained of herein constitute willful and intentional counterfeiting and infringement of the Louis Vuitton Trademarks and Copyrighted Work; are in total disregard of the Plaintiff’s rights and were commenced and have continued in spite of Defendants’ knowledge that the use of the Louis Vuitton Trademarks and Copyrighted Work, or copies or imitations thereof, was and is in direct contravention of Plaintiff’s rights.” The case is titled Louis Vuitton Malletier, S.A. v. Mido Trading, Inc., et al., CV 08-04405 DDP (C.D. Cal. 2008).

PRACTICE NOTE: The defendants’ website, midotrading.com, has been taken offline at the time of this post. That does not appear to be a good omen for defendants. I previously posted (Click Here) about the Louis Vuitton and “Chewie Vuiton” parody case, where the defendant’s parodical use of the LV Monogram was found to not infringe on Louis Vuitton’s trademarks or copyrights.

UPDATE 11/20/2008: The Court dismissed the patent infringement case with prejudice because the parties settled. Each party bears its own attorneys’ fees and costs.

Los Angeles, CA – Patent attorneys for Patent Category Corporation (“PCC”) filed a patent infringement lawsuit at the Federal District Court in Los Angeles, accusing Easton Sports of infringing three PCC utility patents. PCC is the assignee of the inventions covered by U.S. Patent No. 6,357,510, entitled “Collapsible Support Frames,” U.S. Patent No. 6,604,537, entitled “Collapsible Structures,” and U.S. Patent No. 6,758,003, entitled “Collapsible Structures Supported On A Pole.” The patents generally relate to flexible structures that are foldable and comprise support nets, which, in one preferred embodiment, may be used in practicing sports.

los-angeles-patent-attorney-sports-easton.jpgThe complaint alleges that Easton Sport’s five foot pop-up multi net (pictured herein) and seven foot catch net infringe on the patents-at-issue. “PCC has been damaged by Easton’s infringement of each of the patents-in-suit in an amount to be determined at trial. Furthermore, by these acts, Easton has irreparably injured PCC and such injury will continue unless Easton is enjoined by this Court.” The case is titled Patent Category Corporation v. Easton Sports, Inc., CV 08-04617 DDP (C.D. Cal. 2008).

Los Angeles, CA – Copyright attorneys for several plaintiffs, including Sony and Gwen Stefani, filed a copyright infringement lawsuit at the Federal District Court in Los Angeles accusing Alhambra based Havana House Cigars & Lounge of publicly performing copyrighted music without a license from ASCAP, BMI, or SESAC. The complaint alleges that on January 11, 2008, presumably when their investigator was at the Lounge, and on several occasions thereafter, the five copyrighted musical compositions were publicly played and performed. Plaintiffs assert that the Lounge will continue to publicly play and perform these songs unless it is enjoined by the Court.

los-angeles-copyright-attorney-alhambra-havana.jpgThe complaint alleges that ASCAP, on behalf of the copyright owners, contacted the defendant and informed him that a copyright license was needed in order to publicly perform the copyrighted music at the Lounge. The defendant, however, has allegedly not agreed to pay for the license and has 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 defendant to pay the costs of the lawsuit and reasonable attorneys’ fees pursuant to 17 U.S.C. § 505. The case is titled: Sony/ATV Harmony v. Alfred Campano, CV08-03947 PA (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 three-year period. Because of the varying affiliations between record companies and the licensing societies, a license from each of the following licensing societies must be obtained to cover the music owned by the various recording companies: