Martha Stewart, IBM, Apple, D Magazine, WWII Book : Intellectual Property

Martha Stewart Living Omnimedia Inc. was sued by an Illinois company that claims the maker of household goods is infringing a patent for “Protect-A-Bed” mattress covers designed to keep bedbugs from biting sleepers.

JAB Distributors LLC claims the Martha Stewart Collection Allergy Wise Mattress Protector is using its invention without permission. Closely held JAB is seeking a court order to prevent further use, plus unspecified cash compensation, according to the complaint filed Sept. 9 in federal court in Chicago.

This is the second suit in less than a week against Stewart and her company. Last week she was sued for trademark infringement in Los Angeles for selling novelty stick-on wine labels a California winery claimed infringed its Vampire Vineyard trademarks.

Bedbugs, mostly eliminated in the U.S. 60 years ago with the now-banned pesticide DDT, are making a comeback, with companies including Time Warner Inc. and Abercrombie & Fitch Co. reporting sightings of the insects at some offices or stores. Exterminators have logged “a dramatic increase in bedbug calls in recent years” and the U.S. is on the threshold of a pandemic, according to a survey by the National Pest Management Association and the University of Kentucky.

The survey found that 95 percent of pest control professionals have treated bedbug infestations in the past year, compared with less than 25 percent in 2000.

JAB’s patent 7,552,489, issued in June 2009, is for a “bug-impervious fabric” with a zipper opening for removal of the mattress and a foam pad at the end of the zipper so the bedbugs can’t escape from that opening. According to the patent, sealing the bedbugs inside the mattress will starve them.

“It is likely that the evidence will show that Martha Stewart’s acts of infringement have been made with full knowledge” of the patent, Northbrook, Illinois-based JAB said in the complaint.

Officials with New York-based Martha Stewart Living didn’t immediately return messages seeking comment.

The vermin can cause allergic reactions in people through bites, as well as blister-like skin infections, and, in rare cases, asthma and anaphylactic shock, according to a report last year in the Journal of the American Medical Association.

JAB is represented by David Z. Petty and Stephen F. Sherry of Chicago’s McAndrews Held & Malloy PC, the same firm that assisted the company in the patent-application process.

The case is JAB Distributors LLC v. Martha Stewart Living Omnimedia Inc., 10cv5716, U.S. District Court for the Northern District of Illinois (Chicago).

IBM Gets Patent on Method of Computing Passenger Head Count

International Business Machines Corp., the world’s biggest computer-services company, received a patent on a technology that sounds a bit like a grade-school arithmetic problem.

Patent 7,788,063, which was issued Aug. 31, is for a method of determining how many people are riding in a vehicle. According to the patent, this information is obtained by dividing the total weight of the passengers by the estimated weight of each passenger.

The patent specifies that this computation can be adjusted with reference to “current season, a time of day, a day of week, a location of the vehicle and an average weight of carry- on baggage.” Software is a key element of the technology, according to the patent.

Armonk, New York-based IBM applied for the patent in January 2008 with the assistance of Dillon & Yudell LLP of Austin, Texas.

For more patent news, click here.

Trade Secrets/Industrial Espionage

Indicted Apple Manager Devine Agrees to Protect Secrets in Case

Paul Devine, the Apple Inc. manager accused of taking kickbacks in exchange for company information, agreed to a court order protecting Apple’s trade secrets in any document exchange during pretrial negotiations.

The U.S. Attorney’s Office in San Francisco filed the protective order Sept. 9, saying discovery in the criminal case may produce documents, tapes, diskettes, hard drives or other media containing material “that is intended to be kept secret and is trade secret information belonging to Apple.”

Devine agreed to procedures about how the data will be handled during pretrial bargaining, without giving up his right to challenge how such information may be used at trial, according to court documents.

Devine, 37, a global-supply manager, was accused of money laundering and wire fraud in a 23-count indictment unsealed Aug. 13. He pleaded not guilty to charges that he took at least $1 million in kickbacks from Asian suppliers.

Devine gave the suppliers of iPhone and iPod accessories confidential data that helped them win better contracts from Cupertino, California-based Apple in exchange for payments, according to the indictment. Each count of wire fraud, wire fraud conspiracy and money laundering may bring a 20-year prison sentence, prosecutors said.

Jack Gillund, a spokesman for the U.S. Attorney’s office, and Devine’s lawyer, Raphael Goldman, didn’t immediately return calls seeking comment.

The case is U.S. v. Devine, 10-cr-00603, U.S. District Court, Northern District of California (San Jose).


D Magazine Sues Moving Company for Infringing ‘D’ Trademark

The publisher of four magazines focused on Dallas sued a moving company for trademark infringement.

D Magazine Partners LP of Dallas publishes D Magazine, D Home, D Weddings and D CEO and operates the website. The company has used a logo consisting of a white upper-case letter D on a red background.

The company owns registered U.S. trademarks incorporating the logo. It objects to the logo used by Edwin Bedford’s D Moving of Allen, Texas.

According to the complaint filed Sept. 9 in federal court in Dallas, Bedford’s company uses a logo that is confusingly similar to the magazine’s. The logo is found on the mover’s website,

The website also displays images of moving vans bearing the logo, and the company has registered a U.S. trademark incorporating the logo, according to court papers.

The magazine publisher claims the moving company is using a similar logo without permission, and that customers are persuaded falsely to believe an affiliation exists between the two entities.

Because of this alleged infringement, the publisher said it suffers “substantial damage” to its “business, reputation and goodwill.” The company also claims that the mover’s website is intended to divert customers who are seeking the magazines.

Bedford was previously sued for trademark infringement by Major League Baseball after he operated a moving service under the name Major League Moving LLC. Bedford didn’t respond to the complaint in that case, and a default judgment was entered in July 2008, barring the use of the “Major League” in its name.

That case was Major League Baseball Properties Inc. v. Major League Moving LLC, 4:07-cv-00565-RAS-DDB, U.S. District Court, Eastern District of Texas (Sherman).

In the new case, the publisher asked the court for orders halting the use of the “D” logo and the website. It also requested that the court order the cancellation of the moving services’ trademark, and that it be given the website to which it objected.

Additionally, the company asked for awards of money damages, the moving company’s profits attributable to the alleged infringement, and for attorney fees and litigation costs. The publisher asked that the damaged be tripled to punish the moving company for its actions.

The moving company did not respond immediately to an e- mailed request for comment.

D Magazine Partners is represented by Jason P. Bloom, David H. Harper and Jeffrey M. Becker of Haynes & Boone LLP of Dallas.

The new case is D. Magazine Partners LP v. Edwin Bedford, 3:10-cv-01778-D, U.D. District Court, Northern District of Texas (Dallas).

China to Introduce Anti-Piracy Alcohol Labeling, Xinhua Reports

China plans to introduce a labeling system for alcoholic beverages under which each bottle can receive a unique identification number, Xinhua News Agency said, citing a Ministry of Commerce official.

The program, to be ready in two years to three years, is meant to combat counterfeiting, and participation will be voluntary for beverage producers, Xinhua said, citing Wang Bingnan, director of ministry’s Market Operation Department.

For more trademark news, click here.


Autodesk Persuades Appeals Court Software Licensed, Not Sold

Autodesk Inc., the largest maker of engineering software, won a copyright dispute with a Seattle man who tried to sell used copies of the company’s AutoCAD software on EBay Inc.’s auction website.

In its Sept 9 ruling, the 9th U.S. Circuit Court of Appeals reversed a trial court and said that the used copies of the program that Timothy S. Vernor was trying to sell were unsalable. The court agreed with San Rafael, California-based Autodesk that although the users of the program were licensed the use of the programs, they never actually owned them.

Vernor, who was sold used copies of the AutoCAD program by a company that was upgrading its software, became the target of a take-down notice under the Digital Millennium Copyright Act after he listed them for sale on EBay. In his pleadings, Vernor said he repeatedly told both Autodesk and EBay that these were legitimate retail versions of the software.

The California software maker’s AutoCAD design and drafting software program is in the top 10 list of the most frequently pirated programs released annually by the Washington- based Software and Information Industry Association trade group.

When Vernor filed suit in federal court in Seattle in August 2007, he claimed AutoCAD committed fraud and was misusing copyright law to stifle competition.

Although the software company asked the court to dismiss the case, the trial court instead said in October 2009 that under the “first sale” provisions of copyright law, Vernor’s actions didn’t infringe.

The appeals court disagreed, finding that the user is only a licensee rather than the owner of a copy if the copyright owner specified that only a license is granted, imposes use restrictions, and “significantly restricts” the user’s ability to transfer the software. Autodesk’s software license agreement met those requirements, the appeals court found.

The company that sold the used software to Varner was only a licensee, and Autodesk itself retained title to the software, the court said. And because Vernor wasn’t an owner, the court ruled that his customers infringed Autodesk’s copyright when they installed the program on their computers.

The court noted that in addition to Autodesk, several trade groups -- the Motion Picture Association of America and the Software & Information Industry Association -- “presented policy arguments that favor our results.”

EBay and the American Library Association, which filed friend-of-the-court briefs on Vernor’s behalf, were unpersuasive, the court said.

Autodesk’s case was argued by Jerome B. Falk of San Francisco’s Howard Rice Nemerovski Canady Falk & Rabkin PC. Vernor’s case was argued by Gregory A. Beck of Washington’s Public Citizen Litigation Group.

The appeals court case is Vernor v. Autodesk, 09-35969, U.S. Court of Appeals for the Ninth Circuit.

The lower court case is Vernor v. Autodesk Inc., 2:07-cv- 01189-RAJ, U.S. District Court, Western District of Washington (Seattle)

Writer Seeks Authorship Declaration for WWII History Book

A Colorado-based writer sued a California organization established to commemorate a World War II military unit for copyright infringement.

Lawrence J. Hickey of Boulder, Colorado, sued the 38th Bomb Group Association in a dispute over authorship of a history of the unit, which is also known as the Sun Setters.

In the complaint filed Sept. 8 in federal court in Denver, Hickey is asking the court to declare he’s the sole author of the book, and to bar the association and David J. Gunn from copying or claiming interest in the work.

Hickey, president of International Historical Research Associates of Boulder, said he began writing the book in 1985, and as “Saga of the Sun Setters,” it’s intended to become the fourth volume in his “Eagles Over the Pacific” series of books about World War II aviation history.

He spent 25 years researching the history of the unit, visiting battle sites, acquiring translations of Japanese documents, studying memorabilia related to the unit, and commissioning paintings for the book, according to court papers.

He said the book is “under final production” and will have about 650 pages of text, illustrated with 1,000 photos and detailed maps. After he was recovering from a serious illness in 2009, he said he was contacted repeatedly by Gunn and the association seeking information about when the book was published.

“You should understand that I cannot make a statement until I have an opportunity to talk with counsel,” Gunn said in an e-mail.

In June 2010, Hickey said he received a letter from the association and Gunn in which the Californian claimed to be co- author of the book, and sought to bar the book’s publication. Hickey claims the association is now threatening to publish the book independently, using an unfinished draft he provided Gunn.

When accessed Sept. 10, the 38th Bomb Group Association’s website contained a notice that the book was nearing publication, together with a link to Hickey’s International Historical Research Associates website.

Hickey is represented by Byeongsook Seo of Denver’s Isaacson Rosenbaum PC.

The case is Lawrence Hickey v. David J. Gunn, 1:10-cv- 02203-PAG, U.S. District Court, District of Colorado (Denver).

For more copyright news, click here.

IP Moves

Jones Day Hires Export-Compliance Specialists from Patten Boggs

Jones Day hired two lawyers from Patten Boggs LLP with expertise in technology transfer and industrial espionage issues, the international firm said in a statement.

The two new hires are Giovanna Cinelli and Kenneth Nunnenkamp, who will both be joining Jones Day’s government- regulation practice. Both did export-compliance work at their previous firm, in cooperation with the Departments of State, Commerce, Defense, Treasury, and Energy, and the Office of the United States Trade Representative.

Cinelli has also previously been a member of the Defense Trade Advisory Group at the Department of State, and a member of the regulations and procedures technical advisory committee at the Department of Commerce. She is a Naval Reserve intelligence officer. She served as a judicial clerk to Judge Phillip Nichols Jr. at the U.S. Circuit Court of Appeals for the Federal Circuit, the Washington-based court that handles appeals of patent cases.

She has an undergraduate degree from Loyola University, a master’s degree from the College of William & Mary and a law degree from Catholic University of America.

Nunnenkamp, a litigator, has represented clients in IP and antitrust cases in trial and appellate courts. He has also served as a lawyer in the U.S. Marine Corps’ Judge Advocates Division. He is a former judicial clerk for Judge Philip Baldwin at the appeals court for the Federal Circuit.

He has an undergraduate degree from Ohio Wesleyan University, a law degree from Catholic University and a master’s degree in intellectual property law from George Mason University.

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

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