Nestle, Cisco, Dor Yeshorim: Intellectual Property

Ethical Coffee Co. said French authorities seized 50 coffee capsules at two factories after a complaint by Nestle SA, which is battling to defend its Nespresso coffee unit from increased competition.

Bailiffs visited plants operated by subcontractors based in the French towns of Chambery and Tarbes, Ethical Coffee Chief Executive Officer Jean-Paul Gaillard said by phone.

“I’m surprised by Nestle’s angle of attack,” Gaillard said. “They’re basing it on two patents that don’t have anything to do with our capsules. Nestle told the judge that we’re infringing the patents on their machines, but we don’t make machines.”

Nespresso faces a challenge in its main market, France, where Ethical Coffee and Sara Lee Corp. began selling compatible capsules this year. The brand provided about a fifth of Nestle’s sales growth last year, excluding acquisitions and currency swings, David Hayes, an analyst at Nomura, has estimated.

Sara Lee started selling L’OR Espresso capsules that are compatible with Nespresso single-serving coffee machines in French stores in April. Ethical Coffee followed in May with capsules it says are biodegradable. Consumers who bought a Nespresso machine previously were committed to using Nestle’s 16 “Grand Cru” and limited-edition varieties, sold only in boutiques and online.

Nestle is revamping Nespresso products ahead of patent expirations in 2012, Richard Withagen, an analyst at SNS Securities, wrote in a note to investors June 23. Nestle will face more competition in that year, according to Hayes.

The Swiss company has started collecting evidence related to patent infringement of the Nespresso system, Ferhat Soygenis, a spokesman for the Vevey, Switzerland-based company said in an e-mail. He said it’s “premature” to name the parties involved and declined to comment further.

Ethical Coffee’s capsules are sold by Casino Guichard-Perrachon SA, which runs Casino and Monoprix supermarkets.

Nestle said June 15 it sued Sara Lee in France for alleged patent violations.

Cisco Counsel Accused of Inappropriate Speech at Commil Trial

Cisco Systems Inc.’s lawyers’ alleged anti-Semitic remarks are at the root of a motion Commil U.S.A. filed seeking a new trial in a patent case.

Commil, of The Woodlands, Texas, sued Cisco in federal court in Marshall, Texas, in August 2007, accusing the San Jose, California-based company of infringing a patent covering short-range communications technology.

A jury agreed and on May 17 awarded Commil $3.7 million in damages, well below the amount the Texas company had sought.

In the June 21 motion for a new trial, Commil said Cisco’s lawyers “made numerous overt and veiled sidebar comments” aimed at creating prejudice against the patent owner and inventors.

These comments “pervaded the trial, playing into known stereotypes of Jews, foreigners and plaintiffs’ personal injury lawyers,” Commil said in court filings. The remarks affected the jurors ability “to deliver a fair and impartial verdict,” according to the filing.

One of the remarks to which the company objected was a comment to the jury when Cisco’s counsel was cross-examining Commil’s Israeli owner. Commil claimed the lawyer asked about the owner’s dinner at a barbeque restaurant, and said “I bet not pork” was eaten.

Although the court admonished Cisco’s lawyer about this remark, Commil claims the damage was done and made worse by the lawyers’ subsequent references to the trial of Jesus by Pontius Pilate as “a Bible story we all read as kids.” Other objectionable remarks, Commil said, included references to “bottom-feeders,” and a big verdict that would give the company owner “a pretty good day at the track.”

Commil said it should receive a new trial as the trial tactics of Cisco’s counsel “constituted plain error,” and the small size of the damage award was “evidence of manifest injustice.”

Otis W. Carroll Jr., a lawyer who represented Cisco in the case from the firm Ireland, Carroll & Kelly PC of Tyler, Texas, didn’t respond immediately to an e-mailed request for comment.

Commil is represented by Richard Alan Sayles, Christopher Warren Hogue, Eve L. Henson, Mark Daniel Strachan and Mark. S. Werbner of Dallas-based Sayles Werbner.

The case is Commil U.S.A. v. Cisco Systems Inc., 2:07-cv-00341-CE, U.S. District Court, Eastern District of Texas (Marshall).

Nobel Laureate Says Gene Patenting Can Inhibit Research

The leader of the U.K.’s team in the Human Genome Project said gene patents can inhibit research, the U.K.’s Guardian newspaper reported yesterday.

John Edward Sulston, a Nobel laureate biologist, said gene patents are “going to get into the way of treatment unless you have a lot of money” and will hamper research, according to the Guardian.

Speaking at an event at London’s Science Museum to mark the 10th anniversary of the first draft of the human genome, Sulston said some researchers are attempting “to monopolize through the patent system essentially all the tools for genetic manipulation,” the Guardian reported.

These tools should be in the public domain, he said, because “monopolist control of this kind would be bad for science, bad for consumers and bad for business because it removed the element of competition,” according to the newspaper.

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Skyway Sues Landor & Hawa, Says ‘Zero Gravity’ Mark Infringed

Skyway Luggage Co., the largest closely held maker of luggage in the U.S., sued an Indiana-based company for trademark infringement.

Skyway, which was founded 100 years ago, objects to Landor & Hawa International Ltd.’s use of “Sub Zero G” for a line of lightweight luggage. Skyway claims Landor & Hawa is infringing the “Zero Gravity” mark the Seattle-based company has used since 1999. It was registered as a U.S. trademark in November 2000, according to the database of the U.S. Patent and Trademark Office.

Skyway discussed a settlement with Landor & Hawa’s Landor & Hawa U.S.A. unit in 2009 and sent the company a proposed settlement agreement in January, without receiving a response, according to the complaint filed June 24 in federal court in Seattle.

Landor & Hawa’s use of “Sub Zero G” mark has damaged Skyway’s market, goodwill and reputation and causes confusion in the marketplace, according to court papers.

Landor & Hawa didn’t immediately respond to an e-mailed request for comment.

The Seattle company asked the court to halt Landor & Hawa’s use of the “Sub Zero G” mark or any other than is “confusingly similar” to “Zero Gravity.” It also seeks money damages, attorney fees and litigation costs, and an award of profits attributable to the alleged infringement.

Skyway is represented by Nathaniel Eli Durrance of the Seed IP Law Group PLLC of Seattle.

The case is Skyway Luggage Co. v. Landor & Hawa U.S.A. Ltd., 2:10-cv-01042, U.S. District Court, Western District of Washington (Seattle).

Boris Becker’s Ex-Wife Wins Harman Trademark Fight

Barbara Becker, the former wife of three-time Wimbledon champion Boris Becker, won a European Union court challenge to audio-systems maker Harman International Industries Inc.’s trademark rights to the name Becker.

The European Court of Justice in Luxembourg ruled yesterday that how well-known a person is should be among the considerations when checking whether a surname should qualify for EU trademark protection. It rejected a lower court’s assessment that her full name would be too similar to Harman’s trademarks “Becker” and “Becker Online Pro.”

The ruling helps clarify how much protection famous people can get under EU trademark law for names that are already being used as brands by a company. Barbara Becker applied for an EU trademark on her name in 2002, two years after Harman, which makes sound systems for homes and vehicles, filed for its trademarks.

The lower EU court “erred in law in basing its assessment on the conceptual similarity of the marks,” the EU’s Court of Justice said. The 2008 decision failed to take “account of factors specific to the case,” including Barbara Becker’s status as a well-known person.

Calls to Harman, based in Stamford, Connecticut, outside regular office hours weren’t answered.

Yesterday’s decision means that the General Court, the EU’s second-highest court, will have to re-examine the case. The lower EU court had ruled that the two trademarks were similar “visually, phonetically and conceptually.”

“Although it is possible that, in a part of the European Union, surnames have, as a general rule, a more distinctive character than forenames, it is appropriate, however, to take account of factors specific to the case,” the court said in its nine-page judgment. This includes checking whether the name Becker is unusual or very common.

“Account must also be taken of whether the person who requests that his first name and surname, taken together, be registered as a trademark is well known, since that factor may obviously influence the perception of the mark by the relevant public,” said a five-judge panel of the court in the judgment.

According to a website that tracks German surnames, “Becker” is the ninth-most common. Formerly an occupational surname, “Becker” means “baker.”

Boris Becker became one of Germany’s most popular personalities after winning his first Wimbledon title in 1985. He took the title at the age of 17, making him the youngest Wimbledon champion in history. He retired from competitive tennis in 1999 after winning six Grand Slam tournaments, including two Australian Opens and the 1989 U.S. Open.

Boris Becker and his wife separated in 2000 after seven years of marriage.

The case is C-51/09 P Becker v Harman International Industries.

Dor Yeshorim Sued Fertility Clinic for Infringing Trade Name

An organization that tests Orthodox Ashkenazi Jews for genetic disorders sued a Brooklyn, New York-based fertility counseling group for trademark infringement.

Dor Yeshorim Inc., also of Brooklyn, claims A Torah Infertility Medium of Exchange infringes its trade name, according to the complaint filed June 21 in Central Islip, New York.

The Hebrew phrase “dor yeshorim” means “upright generation,” the genetic-counseling agency said in its pleadings. According to court papers, Dor Yeshorim objects to Torah Infertility’s use of the Hebrew phrase “doros yeshorim” in its logo, which is the plural of the same phrase.

The two agencies, both aimed at Orthodox Ashkenazi Jews, offer services “in very closely related, if not identical, channels of trade,” Dor Yeshorim said in its complaint. The genetic-testing group said the name similarity has caused confusion in the relevant community.

After being contacted by counsel for the genetic-testing group, Torah Infertility initially said it would change its marketing materials, mailers and website. The use of “doros yeshorim” by the fertility clinic has continued, the genetic-counseling agency claimed.

Briefly Torah Infertility used “dor mevorochim” -- “blessed generations” -- before returning to “doros yeshorim,” the genetic-testing group said.

Dor Yeshorim said it took this dispute to the rabbinical court known as a “beis din.” Three times the fertility clinic ignored a request to appear before the beis din, which, under Jewish law, then gave Dor Yeshorim the right to take the matter to a civil court, according to court papers.

The suit was filed after the beis din gave Dor Yeshorim permission in May 2010 to seek the secular court’s assistance in settling this dispute.

Dor Yeshorim asked the court to bar Torah Infertility’s use of “dor yeshorim” or “doros yeshorim” in English or Hebrew. It also seeks money damages and asked that they be tripled, plus an order for a destruction of all allegedly offending materials in the infertility group’s possession.

Additionally, Dor Yeshorim asked for an award of Torah Infertility’s profits attributable to the infringement and for attorney fees and money damages.

The genetic counseling group is represented by Peter I. Bernstein of Scull Scott Murphy & Presser PC of Garden City, New York.

The case is Dor Yeshorim Inc. v. A Torah Infertility Medium of Exchange, 2:10-cv-02837-JFB-WDA, U.S. District Court, Eastern District of New York (Central Islip).

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New Zealand Films Losing Ground to Infringers, Industry Claims

The New Zealand film industry is losing NZ$70 million ($50 million) a year to piracy, the New Zealand Federation Against Copyright Theft told the New Zealand Herald.

The organization’s director said the infringement affects theater operators, DVD stores and “mum and dad business owners” in addition to the film industry, according to the Herald.

Pirated copies of “Boy,” a New Zealand film, are circulating on the Internet and may negatively affect DVD sales and its international release, the Herald reported.

The New Zealand government is considering anti-piracy amendments to the nation’s copyright law that may result in a NZ$15,000 fine or termination of Internet access for illegal downloaders, according to the newspaper.

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