Servier, Apple, Toho, IiNet, Gibbs Smith, Disney: Intellectual Property

Les Laboratoires Servier, France’s second-largest drugmaker, was charged with misleading a European Union agency probing potential antitrust violations by companies seeking to keep cheaper generic medicines from entering the EU market.

Servier could face a fine of as much as 1 percent of annual revenue if the European Commission, antitrust agency for the 27 EU nations, concludes the French company “intentionally or negligently” submitted incorrect data.

“The commission’s provisional view is that it has evidence that Servier has provided misleading and incorrect information,” the regulator said yesterday in an e-mailed statement.

The commission, based in Brussels, started a probe of the pharmaceutical industry in January 2008. In a report last year, it found that companies use a variety of techniques to delay the introduction of generics “for as long as possible.”

Servier “will fully cooperate” with the commission, the Neuilly-sur-Seine, France-based company said in an e-mailed statement, confirming it got the charge sheet today.

“Getting such a communication doesn’t prejudge the final outcome,” the company said in the statement.

Teva Pharmaceutical Industries Ltd., the world’s biggest generic-drug maker, Denmark’s H. Lundbeck A/S and other pharmaceutical companies were raided last December as part of the ongoing probe. The December raids were the third in a series by the commission, which had previously raided Servier’s offices in November 2008.

AstraZeneca Plc earlier this month lost a court challenge to an EU decision finding it had misled patent officials and abused its dominant position by hindering the marketing of generic versions of its Prilosec heartburn medicine.

For more patent news, click here.


‘Jailbreaking’ of IPhones to Add Apps Backed by U.S.

Owners of Apple Inc.’s iPhone can unlock the device in order to use applications not authorized by the company, the U.S. Library of Congress said.

Librarian of Congress James H. Billington added the practice, described in the ruling as “jailbreaking,” to a list of actions that don’t violate copyright protections. The decision affecting iPhones and other smartphones was posted yesterday on the agency’s website as part of a periodic review.

The decision was a victory for the Electronic Frontier Foundation, a privacy-rights advocacy group that asked the Library of Congress to exempt programs for smartphones.

“We are thrilled to have helped free jailbreakers” from the “overbroad reach” of U.S. copyright law, said Jennifer Granick, civil liberties director of the San Francisco-based group, in a statement posted on the group’s website.

The advocacy group’s “arguments really amount to an attack on Apple’s particular business choices” for the iPhone and the company’s iPhone App Store, Apple said in a filing with the Library of Congress during consideration of the issue.

Exempting jailbreaking would “destroy the technological protection of Apple’s key copyrighted computer programs in the iPhone device itself and of copyrighted content owned by Apple that plays on the iPhone,” Apple said.

Apple spokesman Steve Dowling didn’t immediately return a phone call yesterday seeking comment.

Users of iPhones still may risk voiding their warranties if they make changes to the device in order to get applications not approved by Apple, said Brian Marshall, a technology analyst with Gleacher & Co. in San Francisco.

“This happens quite frequently with people who want to change the format on the phone and have more flexibility, but when you do that you void the warranty,” Marshall said today in a phone interview.

Toho Claims ‘Tuffzilla’ Dog Chew Toy Infringes ‘Godzilla’ Marks

Toho Co. Ltd., the Japanese film company that holds the copyright and trademarks for the “Godzilla” character, sued an Arizona toy company for infringement.

VIP Products LLC of Phoenix is accused of making and selling a “Tuffzilla” toy Toho claims infringes on its Godzilla marks.

The VIP toy “is not intended to depict any historical dinosaur,” has the same appearance as Godzilla and the “zilla” suffice used in its name is an attempt to “exploit and capitalize on Godzilla” for commercial benefit, according to the complaint filed July 23 in federal court in Los Angeles.

VIP sued Toho July 20 in federal court in Phoenix, asking the court to declare that “Tuffzilla” squeaky dog toy doesn’t infringe any of Toho’s IP rights, and asked the court for a declaration to that effect.

In its complaint, Toho called VIP a “serial infringer” whose business “included taking the intellectual property of others and trading on the popularity and goodwill of that intellectual property for commercial gain.”

The Phoenix-based company was sued for trademark infringement in 2008 by the company now known as Anheuser-Busch InBev NV. That case was dismissed in January 2009.

VIP is represented in its dispute with Toho by David G. Bray of Mariscal, Weeks, McIntyre & Friedlander PA of Phoenix.

The case against Toho is VIP Products LLC v. Toho Co., 2:1- cv-01533-JAT, U.S. District Court, District of Arizona (Phoenix).

Toho is represented by Aaron J. Moss and Charles N. Shephard of Greenberg Glusker Fields Claman & Machtinger LLP of Los Angeles.

The case against VIP is Toho Co. v. VIP Products LLC, 2:10- cv-05452-SVW-PLA.

Aussie Entertainers’ Union Seeks to Enter Infringement Suit

Australia’s Media Entertainment and Arts Alliance, the country’s entertainment-industry union, asked a court for permission to file a friend-of-the-court brief in the appeal of a copyright case against an Internet service provider, The Australian reported.

The case was brought against iiNet Ltd., a Perth-based Internet company, by the Australian Federation Against Copyright Theft, a coalition of 30 content owners, the newspaper reported.

In February a court ruled that iiNet wasn’t liable because it hadn’t authorized its customers to make unauthorized use of others’ content, according to the newspaper.

In asking permission to intervene, the union said Internet service providers profited from their customer’s illegal activities, The Australian reported.

Interior Designer Sues Utah Publisher Over Pattern Copyright

A North Carolina designer of patterns for curtains and other window treatments sued a Utah publisher for copyright infringement.

Marylan Borchard of Matthews, North Carolina, sued Gibbs Smith, of Layton, Utah, and Jacquelyn Von Tobel in federal court in Charlotte, North Carolina for reproducing her patterns without authorization.

According to the complaint filed July 23, Gibbs Smith published “The Design Directory of Window Treatments,” a book by Von Tobel in 2007. The 600-page book, sold by retailers such as Inc., and Barnes & Noble Inc., is billed as “the complete reference for homeowners, interior designers, decorators and workrooms,” and contains more than 1.500 images. It’s accompanied by a CD-Rom with line drawings for every color illustration in the book.

The introduction to the CD encourages readers to “print and customize according to your needs” the drawings, according to court papers. Borchard, who does business as M’Fay Patterns, claims that many of the illustrations in the book and CD “are specifically identified as being derivatives of M’Fay patterns.”

The North Carolina designer said she never authorized Von Tobel or the publisher to create or distribute any derivative works based on her patterns.

Borchard included in her court filing an e-mail she received from Von Tobel in April 2008 which acknowledged, allegedly, that she included the M’Fay images in the book even as she lacked permission to use them.

“I had to make a decision on whether to go ahead and include your company or omit it. I felt it would be a disservice to you and to the readers of the book not to include one of the most prominent sources in the industry,” Von Tobel said in her e-mail. “I made the decision to go ahead and include M’Fay,” Von Tobel said, according to court papers.

Borchardt asked the court to order seizure and destruction of all copies of the allegedly infringing work, and for an order barring all future infringement of her copyrights and trademark. She also asked for awards of money damages, litigation costs, and attorney fees.

She requested that the damages be increased “due to the willful conduct” of the defendants.

Borchardt is represented by Matthew J. Ladenheim of Trego, Hines & Ladenheim PLLC of Charlotte, North Carolina.

The case is Borchardt v. Von Tobel, 3:10-cv-00338, U.S. District Court, Western District of North Carolina (Charlotte).

For more copyright news, click here.


Disney Says Start-Up Companies Are Fakes, Infringe Trademarks

Walt Disney Co., the 87-year-old entertainment company, sued five Los Angeles residents and a Beverly Hills, California- based company for trademark infringement.

The complaint, filed July 21 in federal court in Los Angeles, alleges that Angelo Scrigna, Sundown Scrigna, Ginocarlos Scrigna, Johann Scrigna, Phillip LoVoie and their American Brokers Inc., are forming companies that infringe Disney’s marks.

Disney claims the companies, with names such as Walt Disney Parks and Resorts LLC, Disney Enterprises Inc., and the Walt Disney Company, have been started in Arkansas, Illinois, Florida, Hawaii, Oregon and Washington “in a blatant scheme to trade on these marks.”

Already the public is sufficiently confused by these companies with similar names, Disney says, so much so that court documents intended for Disney have been served on some of the other companies. The use of the Disney name isn’t authorized, the company said, and deceived the public.

Angelo Scrigna delivered a letter to Disney July 7, demanding the company quit using the name “The Walt Disney Co. in Florida,” Disney said in its complaint.

On July 13, Scrigna sent Disney a cease-and-desist letter, demanding the company quit doing business in Los Angeles County under the Disney name, according to court papers. Disney’s Burbank, California, headquarters are in Los Angeles County.

American Brokers Inc. didn’t respond immediately to an e- mailed request for comment. According to the company website, American Brokers focuses “on the old world fundamentals that made fields grow for millenniums.”

Disney asked the court to bar the defendants from any unauthorized use of the Disney marks and company names, and to order the dissolution of all the defendants’ companies that use Disney names. It also seeks immediate delivery of any materials that were misdirected to the defendants’ companies, and awards of defendants’ profits derived from the alleged infringement, money damages, litigation costs and attorney fees.

The company is represented by Susan Laura Klein, David S. Shukan and Jeffrey B. Valle of los Angeles-based Valle Makoff LLP.

The case is Walt Disney Co. v. Angelo Scrigna, 2:10-cv- 05369-JFW-CW, U.S. District Court, Central District of California (Los Angeles).

Colgate Sued Over Imports of Mexican ‘Wildroot’ Products

Colgate-Palmolive Co., the New York-based maker of consumer products such as Irish Spring soap, Ajax cleanser and Skin Bracer after-shave lotion, was sued for trademark infringement by a Florida company.

Stephan Co. of Fort Lauderdale bought Wildroot and several other trademarks from Colgate in 1995. The company uses the Wildroot mark for some of its personal-grooming products. Wildroot is a men’s hair tonic that was widely advertised in the early days of television in the 1950s.

When Colgate sold the marks to closely held Stephan Co., it retained the right to the Wildroot mark in Mexico and “expressly or implicitly agreed” it had no rights to sell products bearing the mark in the U.S., Stephan said in court papers.

Stephan initially filed suit in Florida state court on July 9, accusing Colgate of permitting U.S.-based distributors to buy and import Wildroot products intended for the Mexican market into the U.S. The case was transferred to federal court in Fort Lauderdale on July 23.

The Florida company says that based on the distribution volumes in Mexico, Colgate knew or should know that the infringing Wildroot products are being illegally diverted to the U.S. The Mexican Wildroot product is “materially different from Stephan’s product, and the public -- including distributors and retail outlets -- is likely to be confused by the import,” Stephan said in its pleadings.

It asked the court to bar Colgate from activities that infringe the Wildroot mark, and to order the New York company to deliver all infringing merchandise and promotional material to Stephan for destruction.

Additionally, it’s seeking an award of Colgate’s profits related to the alleged infringement, money damages, extra damages to punish Colgate for its conduct, and attorney fees and litigation costs.

Stephan is represented by Richard E. Berman and Brian J. McCarthy of Berman Kean & Riguera PA of Fort Lauderdale. Colgate is represented by Jonathan Galler, Matthew Henry Triggs, and Brendan O’Rourke of New York’s Proskauer Rose LLP.

The case is Stephan Co. v. Colgate-Palmolive Co., 0:10-cv- 61288-MGC, U.S. District Court, Southern District of Florida (Fort Lauderdale).

For more trademark news, click here.

To contact the reporter on this story: Victoria Slind-Flor in Oakland, California, at

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