9News.com: A mom and pop dog supply and grooming store is doing battle with pet industry titan PETCO and things could get nasty with significant quantities of money at stake. Dan Boniface and Kyle Clark provide some additional information on this not-so-clear case of trademark infringement in their topical report, Small pet supply store challenges PETCO in trademark fight. In it, they write:
A family-owned shop in Boulder County is battling a big box store for the rights to use the similar concepts, color schemes and names they share.
“We’re a mom-and-pop,” Bernadette Pflug said. “We’re a small-town, locally-owned business.”
It’s one with a toe hold, or paw hold if you will, in the burgeoning boutique pet supply business.
Bernadette, and her husband, Joe Pflug own Unleashed Dog Center, which offers dog products and grooming.
Pet supply giant PETCO is venturing into the boutique pet supply market with a spinoff store, Unleashed by PETCO. Currently, there are three such stores, all in California.
The Pflugs, and their trademark attorney, assert PETCO store’s bright color scheme, minimalist look, natural pet food concept and name have been lifted from their small store.
Of course, PETCO claims their new boutique pet stores are on the up-and-up. A spokesman for the company said “the company believes it properly filed its trademark application,” and summarily “rejected the Pflug’s request that PETCO agree not to open any Unleased by PETCO stores in Colorado.” One problem with the Pflug’s claim is that they only own Colorado trademarks for their concept and not USPTO Federal ones, which could end up being the downfall of their infringement claim. PETCO’s pockets are much deeper than the Pflug’s, one would imagine, and should the case go to court, the outcome would most likely revolve around who’s got the most cash to spend litigating and not on who is right or wrong.
TechDirt.com: Not one to back off from a bit of old-fashioned windmill-tilting, Mike Masnick takes on the cause of Larry Lessig, Director of the Edmond J. Safra Foundation Center for Ethics at Harvard University, and a Professor of Law at Harvard Law School, who has repeatedly run afoul of DMCA rules concerning the fair use of copyrighted materials in his online video presentations via YouTube.com. Mike reports on the latest take-down of a Lessig lecture under the auspices of DMCA in his topical piece, Bogus Copyright Claim Silences Yet Another Larry Lessig YouTube Presentation. Here’s the background information on the issue:
Nearly a year ago, we wrote about how a YouTube presentation done by well known law professor (and strong believer in fair use and fixing copyright law), Larry Lessig, had been taken down, because his video, in explaining copyright and fair use and other such things, used a snippet of a Warner Music song to demonstrate a point. There could be no clearer example of fair use — but the video was still taken down. There was some dispute at the time as to whether or not this was an actual DMCA takedown, or merely YouTube’s audio/video fingerprinting technology (which the entertainment industry insists can understand fair use and not block it). But, in the end, does it really make a difference? A takedown over copyright is a takedown over copyright.
Lessig has fallen victim to a misplaced attempt by YouTube to take down copyrighted materials again, and ironically, the piece’s topic is the inherent flaws of the DMCA program! Masnick sounds off on this copyright silliness: “When a video about fair use itself is pulled down for a bogus copyright infringement, it proves the point. The unintended consequences of asking tool providers to judge what is and what is not copyright infringement lead to tremendous problems with companies shooting first and asking questions later. They are silencing speech, on the threat that it might infringe on copyright.” Whatever happened to innocent until proven guilty? Any one? Bueller…?
GamePro.com: Book publisher Random House is looking to expand their reach beyond printed matter and into the realm of video games with a new program that focuses on “transmedia intellectual property.” AJ Glasser reports:
Book publisher Random House announced a new deal today that will change the way we think about video game adaptations. Stardock’s original PC strategy game, Elemental: War of Magic, leads off with a book called Elemental: Destiny’s Embers this summer.
The new branch of the publisher will handle all “transmedia intellectual property (IP) — story content that can be accessed through multiple media sources including video games, social networks on the web, mobile platforms, in print and on film.”
So rather than just taking the story of Elemental: War of Magic and massaging it into a novel, editors from Random House like Keith Clayton (editor, Stars Wars Expanded Universe properties) work with game writers to create books that exists within the same IP as a video game. In other words, the publisher will license the universe and let authors, game developers, or even comic book writers express the IP in different formats.
RH’s transmedia program will give content creators a new avenue to explore their creativity while at the same time protecting their efforts from unauthorized use. In addition, there is now more financial incentive for content creators to ink a deal with companies like Random House to produce booksclosely tied to their video game “universes” which should enrichen the experience of the end user. Be sure to read the rest of Glasser’s New “transmedia intellectual property” movement kicks off at Random House to find out all the details of this exciting publishing house development.
ArsTechnica.com: Woe unto those who dare to borrow patents from technology giant Apple. HTC, major smartphone producer and the latest target of Apple’s ire, stands to lose the right to import its products into the US along with untold millions of dollars in fines and penalties should they lose their day in court. Chris Foresman has additional details for the gentle, and constant reader, in his recent article, HTC feeling Apple’s fury over smartphone patents. Foresman writes:
Apple has filed a lawsuit against smartphone maker HTC, alleging that it violates as many as 20 patents that Apple has on the iPhone interface and hardware architecture. A parallel complaint has also been filed with the International Trade Commission to block imports of devices that violated the patents in question.
“We can sit by and watch competitors steal our patented inventions, or we can do something about it. We’ve decided to do something about it,” Apple CEO Steve Jobs said in a statement. “We think competition is healthy, but competitors should create their own original technology, not steal ours.”
At dispute are are a wide-ranging portfolio of technology patents that make modern smartphones so advanced and Apple is issuing its claim of infringement at a particularly unwanted time in HTC’s product release schedule. “The lawsuit may have been sparked by the recent addition of certain multitouch gesture controls added to phones running Google’s Android operating system. Google enabled pinch-and-zoom gestures for the Nexus One recently, citing the model’s advanced CPU as the reason. ‘Unlike past devices, these phones have the processing power to deliver pinch-to-zoom, while still providing a great user experience,’ a Google spokesperson said early last month.” Apple seeks 3x damage “for willful infringement, punitive damages, interest, and attorney’s fees in addition to a permanent injunction barring HTC from making, using, importing and selling devices that infringe on Apple’s patents.” Stay tuned for more news on this serious dispute as it becomes available.
The Washington Post: As more and more human genetic material becomes available to increasingly tech-savvy medical business at reasonable prices, an large number of disputes are arising over the idea of patenting portions of the human genome/related processes and medical advancements. A timely piece by Kari Lydersen features a group of consumers who are joining together to fight against the patenting of genetic processes on the basis that a single provider of tests looking for mutations in human genes runs contrary to US Constitutional law.
After receiving a diagnosis of aggressive breast cancer at age 43, Lisbeth Ceriani wanted to find out whether she had the BRCA gene mutation, which makes women much more likely to get breast and ovarian cancer. If she tested positive for the mutation, she decided, she would have her ovaries removed preemptively.
But Massachusetts, where Ceriani lives, is one of 24 states where Medicaid does not cover the $3,120 test, which is offered only by the Utah biotech company Myriad Genetics. Coordinator of a Boston au pair program where she does not get health insurance or earn enough to purchase it on her own, Ceriani said she could not afford the test. She is one of the plaintiffs in a lawsuit claiming that Myriad’s exclusive right to conduct tests for the mutation is unconstitutional.
Lawyers for the defendant, Myriad Genetics, strongly disagree with Ms. Ceriani and her fellow suitors. Patent attorney and molecular biologist Kevin Noonan weighs in: “‘Saying the consequence of these patents is that women may not be able to obtain the information is like saying I can’t call someone in New York because I don’t want to pay to use a telephone,’ he said. ‘Free speech doesn’t mean something should be free, it just means the government can’t suppress it.”‘ Read Lawsuit attacks patent giving company control over genetic test for cancer risk for the win.
Bonus IP piece o’ the day: Biotechconnection.com presents Intellectual Property: How to Review a Patent Application featuring Patent Attorney Katherine White of Enterprise Partners Venture Capital.