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TiVo, Canwest, Under Armour: Intellectual Property

TiVo Inc., a pioneer of digital-video recording, lost a ruling before the U.S. Patent and Trademark Office over rights to technology that is the subject of a legal dispute with Dish Network Corp. and EchoStar Corp.

The agency issued a final rejection on June 4 of two aspects of a patent on what TiVo calls its “time warp” technology that lets users record a television program and play it back at the same time. The patent office review is a parallel proceeding to TiVo’s legal case before a U.S. appeals court.

The two patent claims are the same ones that a jury in 2006 found Englewood, Colorado-based Dish and EchoStar to have infringed. The patent office found that the elements were obvious variations of earlier inventions. TiVo can appeal the agency’s ruling, and the patent remains valid and enforceable during that process, which can take at least a year.

“This is just one of several steps in the reexamination process,” said Erik Milster, a spokesman for Alviso, California-based TiVo. “We will continue to work with the PTO to explain the validity of the claims over the cited references and are confident that we will be successful in ultimately having our claims validated just as they were in the first reexamination.”

The case began with a lawsuit in 2004 against Dish and EchoStar when those two were a single satellite-television and equipment company. Dish and EchoStar said in a joint statement yesterday that they were pleased that the agency “finally concluded that the software claims were unpatentable.”

The U.S. Court of Appeals for the Federal Circuit said May 14 it will review whether Dish and EchoStar continued to infringe the patent after the court had upheld a jury verdict won by TiVo. The court will hear arguments in November.

The appeal is TiVo v. EchoStar, 2009-1374, U.S. Court of Appeals for the Federal Circuit (Washington). The lower-court case is TiVo Inc. v. EchoStar Communications Corp., 04-cv-01, U.S. District Court, Eastern District of Texas (Marshall).


Canwest to Pay Up to $7.1 Million to Settle Lawsuit

Canwest Global Communications Inc., the Canadian media company in bankruptcy protection, agreed to pay as much as C$7.5 million ($7.1 million) to settle a group lawsuit by freelance writers who claimed republication of their work on the Internet broke copyright laws.

Because the company is in bankruptcy protection, the writers will be allowed to file a claim for the settlement amount and share in the distribution to creditors, either in cash or shares of a new company, said Peter Osborne, lawyer for Canwest’s management directors.

“The idea is to provide finality and certainty,” Osborne told Ontario Superior Court Judge Sarah Pepall at a hearing in Toronto today. Pepall will be asked to approve the settlement at a June 16 hearing.

Canwest, based in Winnipeg, Manitoba, filed for bankruptcy protection on Oct. 6 as it faced demands for repayment of more than C$1 billion of debt. The company had about C$4 billion of debt at the time. Canwest’s newspaper unit won bankruptcy protection on Jan. 8. The company agreed to sell its television assets to Shaw Communications Inc. for about C$2 billion and its newspapers for C$1.1 billion to a group of bondholders led by Canadian media executive Paul Godfrey.

Pepall agreed yesterday to extend Canwest’s bankruptcy protection to Sept. 8 to allow the company to complete the sales.

Heather Robertson, a freelance writer, first sued Thomson Corp. in 1996 claiming the company infringed her copyright when it stored her work in electronic data bases. She expanded her suit later to include Bell Globemedia Inc., then the publisher of the Globe and Mail newspaper, and Canwest.

Thomson, now Thomson Reuters Corp., and Bell Globemedia, now known as CTVglobemedia Inc., agreed to pay C$11 million last year to settle the suit.

The cases are In the Matter of a Plan of Compromise or Arrangement of Canwest Publishing Inc., CV-10-8533, Ontario Superior Court of Justice (Toronto) and In the matter of a Plan of Compromise or Arrangement of Canwest Global Communications Corp., CV-09-8396- 00CL, Ontario Superior Court of Justice (Toronto).


Amazon Sued For Selling Nestle’s Smarties Candies in U.S. Inc., the world’s biggest online retailer, was sued for trademark infringement by a closely held New Jersey candy maker.

The dispute stems from Amazon’s sale of a chocolate candy with a hard sugar shell made by Switzerland’s Nestle SA. The candies, which resemble Mars Inc.’s M&Ms, are known as Smarties and aren’t widely distributed in the U.S.

Ce De Candy Inc., of Union, New Jersey, has been selling a fruit-flavored hard candy tablet since 1950. That candy is also known as Smarties, and Ce De has three trademark registrations for the term, according to a complaint filed July 2 in federal court in Newark, New Jersey.

The New Jersey candy company contends that sale of the Swiss-made Smarties in the U.S. constituted trademark infringement. Ce De objects to Amazon’s sale of 10 different products containing the Swiss Smarties.

Amazon was sent a cease-and desist letter Dec. 15 and on De. 17 quit selling the products. Ce De claims that the Seattle-based online retailer is once again selling and promoting the Swiss-made Smarties.

The New Jersey company claims Amazon’s sale of the Swiss candies causes confusion in the marketplace and deceived customers. It claims that it will suffer damages in excess of $1 million should Amazon not be stopped from selling the offending product.

Ce De asked the court to bar Amazon from offering any candy for sale under the term “Smarties” unless it originates with the New Jersey company. Additionally, Ce De seeks money damages, litigation costs and attorney fees.

Maris R. Kessel, Barry A Cooper and Amy B. Goldsmith of New York’s Gottlieb, Rackman & Reisman PC represent Ce De.

The case is Ce De Candy Inc. v. Inc., 2:10-cv-02856-WHW-CCC, U.S. District Court, District of New Jersey (Newark).

Jarden’s Rawlings Unit Sues Under Armour for Infringement

Jarden Corp.’s Rawlings Sporting Goods Co. unit sued rival Under Armour Inc. for trademark infringement.

The complaint, filed June 7 in federal court in Seattle, accuses Baltimore-based Under Armour of infringing Rawlings trademarks related to its Coolflo batting helmet.

Rawlings, based in St. Louis, said Under Armour used photos of the Coolflo helmets to promote its own product, altering the photos by affixing its logo to the Rawlings product.

The public is likely to believe erroneously that Under Armour is the source of the products, according to court papers. Rawlings asked the court to bar Under Armour from using the Coolflo trademarks and trade dress, and from placing its own marks on any Rawlings products.

Additionally, Rawlings requested an order for seizure and destruction of all allegedly infringing products and promotional materials, and for awards of litigation costs, attorney fees and money damages. The company also asked for extra money damages to punish Under Armour.

Rawlings is represented by Ambika K. Doran, F. Ross Boundy, and Cindy Caditz of Seattle’s Davis Wright Tremaine LLP.

The case is Rawlings Sporting Goods Co. v. Under Armour Inc., 2:10-cv-00933, U.S. District Court, Western District of Washington (Seattle).

Roycroft Restorer Seeks to Bar Tea Shop’s Use of Trademark

A charitable foundation that preserved an inn that was the center of the Roycroft Arts and Crafts community sued the owners of a tea shop for trademark infringement.

The Margaret L. Wendt Foundation, which funds numerous cultural and educational activities in eastern New York, set out to “rescue” and preserve the 105-year-old Roycroft Inn in East Aurora, New York. The inn, which was granted National Landmark status in 1986, was founded by Elbert Hubbard, a writer, philosopher and principal proponent of the Arts & Crafts movement.

When the foundation’s Wendt Holdings unit acquired the inn in 1995, it also acquired title to all the goodwill associated with the Roycroft trademark, according to the complaint filed June 3 in federal court in Buffalo, New York.

The foundation objects to Michael and Marilyn Caputo’s attempt to open a business in East Aurora to be named “Roycroft Tea Co.,” and to register “Roycroft Tea Co. From Farm to Family” with the U.S. Patent and Trademark office.

The Caputos were sent a cease-and-desist letter April 15, demanding they halt any use of the Roycroft mark.

Their counsel, Anne F. Downey of Downey & Downey of Boston, New York, responded April 16, writing that “there are serious questions” about the scope of the foundation’s exclusive rights to the mark. “I think that if you some day push the issue all the way to a judicial decision, you may be very disappointed with the results,” she wrote.

Downey suggested that the parties reach an amicable resolution and “even discuss opportunities to cross-market” each other’s goods and services.

The Caputos were interviewed by World Tea News, and in an April 27 article included in the court filings said that while they expected to be sued, they wouldn’t let that interfere with their planned opening in June. They told World Tea News they plan to open additional Roycroft Tea Rooms in other cities with a significant heritage from the Arts and Crafts Movement: Pasadena, California; Asheville, North Carolina; and Gatlinburg, Tennessee.

The foundation claimed it’s harmed by the tea company’s use of the Roycroft name, and called the Caputos’ plans “a clear attempt to misappropriate the skills, expenditures and labor of Wendt Holdings.”

It asked the court to bar the tea room from any use of the Roycroft mark, and to order the patent office to cancel any of the tea room’s trademark applications containing the word “Roycroft.” The foundation also asked for money damages, attorney fees, litigation costs and for an order transferring to it the domain names “” and “”

The foundation is represented by Gabriel M. Nugent, Ronald S. Kareken and Kathryn D. Cornish of Hiscock & Barclay LLP of Syracuse, New York.

The case is Margaret L. Wendt Foundation Holdings Inc., v. Roycroft Tea Co., 1:10-cv-00458-RJA, U.S. District Court, Western District of New York (Buffalo).

University Technology Transfer

Purdue Looking to License Patented Oil Cleanup Technology

Purdue University said its Office of Technology Commercialization is looking to license an oil-spill cleanup technology that could be used in the Gulf of Mexico in the aftermath of BP Plc’s rig disaster.

The technology was developed by Professor Jeffrey Youngblood of the university’s School of Materials Engineering, Purdue said in a statement. It involves the use of a membrane that separates oil from water and is longer lasting than conventional filters.

Youngblood said that oil dispersed in water and run though the filters results in a 98 percent separation.

He is the named inventor on five pending published applications for patents on polymeric materials, according to the database of the U.S. Patent and Trademark Office.

IP Moves

Jun He Opens Silicon Valley Outpost, Hires Three IP Lawyers

Jun He Law Offices, a Beijing-based firm with more than 300 lawyers, opened an office in Palo Alto, California, with three intellectual-property specialists, Asian Law Business reported.

Two of the hires, James Zhu and Zoe Wang, are both formerly of Seattle’s Perkins Coie, according to Asian Law Business. Jun He also hired Steven Cui, who is from Cleveland’s Jones Day and formerly was an in-house lawyer at Genentech Inc., the publication reported.

The Chinese firm opened an office in New York in 1993, according to Asian Law Business.

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