Apple, Tony Chachere’s, NinjaVideo: Intellectual Property

Apple Inc. has infringed upon Samsung Electronics patents since entering the mobile-phone market with the iPhone 3G, a lawyer for Samsung told a Dutch court as the Korean company seeks a ban on some Apple products in the Netherlands.

“Apple just entered the market in 2008 without taking care of the licenses,” Bas Berghuis van Woortman, a lawyer for Simmons & Simmons LLP who represents Samsung, said in The Hague court. “Apple is consciously, structurally infringing the 3G patents.”

Samsung, the world’s second-largest maker of mobile phones, filed four lawsuits against Apple in the Netherlands and the first scheduled hearing was yesterday. Samsung is claiming Cupertino, California-based Apple’s iPhone and iPad that use third-generation technology infringe Samsung patents and is seeking a ban on their sale in the Netherlands.

The legal battle between Apple and rival smartphone makers is intensifying as an increasing number of consumers use smart phones and wireless handsets to surf the Web, play games and download music and videos. Samsung and Apple have been involved in lawsuits around the globe since Apple claimed in an April lawsuit filed in the U.S. that the Korean company’s Galaxy devices copied the iPhone and iPad.

Apple told the court it uses Intel Corp.’s chipsets for iPhones in Europe, and licenses are covered that way.

“When we entered the market we did have patent licenses,” said Rutger Kleemans, a lawyer for Freshfields Bruckhaus Deringer LLP, which represents Apple in the Netherlands. Samsung wants to get 2.4 percent of the chip price on the patents in question, which is “excessive,” he said, without elaborating.

The two companies are in talks on 3G licenses, “so an injunction is premature,” Kleemans said. Samsung holds a standard-essential patent and is obliged to provide third parties with a license under reasonable, non-discriminatory terms, he said.

Apple has blocked sales of the Galaxy Tab 10.1 in Germany, which Strategy Analytics forecasts will be Europe’s third-largest market for touch-screen mobile computers this year.

In Australia, Samsung’s debut of its Galaxy 10.1 tablet computer may be delayed beyond the end of the month after a judge today said she needs time to study Apple’s patent-infringement claims.

Among mobile-device patent battles is a dispute between Apple and Motorola Mobility Holdings Inc. over the iPhone’s touch screen.

Suwon, South Korea-based Samsung lost a preliminary court ruling over sales of its Galaxy S, S II and Ace smart phones in the Netherlands in a patent dispute with Apple last month. The judge in that case didn’t extend the ruling to Samsung’s tablet computers.

The Hague court intends to rule on Oct. 14 whether Samsung has a case.

Crocs to Counter Slowdown With New Shoe Styles at Higher Prices

Crocs Inc. plans to counter any global slowdown by pushing consumers to shift to new, higher-priced shoe styles from the plastic clogs for which it’s better known, Chief Executive Officer John McCarvel said.

“Our whole desire is to go upscale,” McCarvel said in an interview at the World Retail Congress in Berlin today. “This is many years in the making. It has evolved constantly, upgrading the line, trying to stretch the consumer up to 40, 45 euros, pounds or dollars.”

The 400-store company won a patent-infringement ruling in April aimed at helping it block U.S. imports of Double Diamond Distribution Inc.’s Dawgs footwear and Waldies Comfy Clogs made by Effervescent Inc. That was a ruling from the U.S. International Trade Commission, which has the power to block imports that infringe U.S. patents.

McCarvel said he was a “bit negative” about the amount of time it took to impose the ban, which resulted from a complaint filed in 2006, as the products Crocs was protecting now represent only 10 percent of sales.

“By the time you get the judgment, business is closed,” he said.

The ITC case was In the Matter of Foam Footwear, 337-567, U.S. International Trade Commission (Washington).

Samsung Tablet Faces Further Delay in Australia Amid Apple Row

Samsung Electronics Co.’s debut of its Galaxy 10.1 tablet computer in Australia may be delayed beyond the end of the month after a judge said she needs time to study Apple Inc.’s patent-infringement claims.

Federal Court Justice Annabelle Bennett may grant a “brief” injunction on sales of the Samsung tablet as she considers arguments from Samsung and the iPad maker, the judge said during the first day of a two-day hearing over whether the Galaxy Tab should be banned in Australia until the dispute is resolved. The judge urged both sides to consider starting their patent-infringement trial as soon as possible.

The dispute is part of a global fight between the two companies, the world’s two largest makers of tablet computers, which began in April in the U.S. after Cupertino, California-based Apple sued Samsung claiming Galaxy products “slavishly” imitated the designs and technologies used in iPads and iPhones. Samsung struck back with lawsuits in South Korea, Japan, Germany and Australia.

Samsung, based in Suwon, South Korea, targeted the iPad 2 and adopted as many of its features as it could in developing its newest tablet, Steven Burley, Apple’s lawyer, said yesterday.

It must have been “as plain as the Opera House to Samsung” that the design of the Galaxy Tab 10.1 infringed Apple patents, Burley said. “They ought to clear the way in advance rather than attempt to crash through.”

A ban on the sale of the product would go too far, David Catterns, Samsung’s lawyer, told the judge.

“This is a high-stakes fight,” Catterns said. “This is where we draw the line.”

Samsung agreed in August to delay a planned release of the Galaxy 10.1 tablets in Australia until Bennett rules on Apple’s request for an injunction barring the sale of the product.

Under usual circumstances it would take “well into next year” to resolve the patent dispute, Catterns said. Apple would be prepared to go to trial next week, Burley told the judge.

Catterns said that by the time the patent dispute is resolved at trial, Apple would be selling the iPad 9.

Samsung had altered its Galaxy 10.1 tablet from a U.S. version that Apple claimed infringed 10 of its patents, for release in Australia. The Australian version, although with “reduced functionality,” still infringes at least three patents, according Burley. Catterns denied the Australian tablet has reduced functionality.

Apple didn’t object to earlier versions of Samsung’s tablets even though they used the same technology, Catterns said.

The 10.1 is a bigger threat to Apple because it’s the thinnest tablet computer on the market, Catterns said.

Samsung countersued Apple on Sept. 17, saying the iPhone and iPad infringe seven of its patents related to wireless communications standards.

The agreement to halt advertising and the sale of the Galaxy 10.1 tablet doesn’t affect any other Samsung tablet or smartphone available in Australia, or other countries, the company said following the Aug. 2 hearing.

The case is Apple Inc. v. Samsung Electronics Co. NSD1243/2011. Federal Court of Australia (Sydney).

White House Directive on Software Patents Sought by Petitioners

Among the 65 petitions seeking action from the Obama Administration that were published on the White House website by yesterday, one with a high number of signatures calls for an end to the issuance of software patents.

The petition, which was created Sept. 23, had more than 11,000 signatures by yesterday. According to the petition, software patents have “become a tool of antitrust employed by large companies against small ones.”

Petitioners claim that the U.S. Patent and Trademark Office’s “original interpretation” of software as language “is much closer to reality and more productive for innovation” than what it terms “the current practice of issuing software parents with no understanding of the patents being issued.”

According to the government website, the right to petition the government is guaranteed by the U.S. Constitution, and the threshold for review by the White House is the amassment of more than 5,000 signatures in 30 days.

The present group of petitions published on the website cover a wide range of issues including the legalization of marijuana, permitting kayaking in Yellowstone National Park, the issuance of a Cold War service medal, a ban on non-therapeutic routine circumcision, a call for the dissolution of the Electoral College, a request for the repeal of the Defense of Marriage Act, the removal of “In God we trust” from U.S. currency, and the formal acknowledgement of an extraterrestrial presence.

The petition opposing software patents was created by a resident of Bloomington, Indiana, identified only as “Daniel B.” Those who have signed the petition are listed by first name, middle initial and city of residence.

For more patent news, click here.


Tony Chachere’s Claims Former Licensee Infringed Trade Dress

Tony Chachere’s Creole Foods of Opelousas Inc., a spice and speciality-food company founded by a retired pharmacist, sued a former licensee for trademark infringement.

The target of the suit is Big Easy Foods of Louisiana LLC of Lake Charles, Louisiana. According to the complaint filed Sept. 2 in federal court in Lafayette, Louisiana, at one time Big Easy made a variety of food products under license from Tony Chachere’s, including frozen shrimp, chicken sausage and a variety of the Cajun Thanksgiving creation known as “Tur-Duc-Hen,” which is a chicken stuffed into a duck stuffed into a turkey.

The two companies co-branding agreement began in 2004, enabling Big Easy to produce food products under the Tony Chachere’s label. In a September 2007 interview published on the Southern Boudin Trail website, Larry Avery, chief executive of Big Easy predecessor French Market Foods said the licensing agreement “worked very well for both companies.”

According to court papers, Big Easy notified Tony Chachere’s in April that it would begin offering products under its own name. The Opelousas, Louisiana-based company said it began seeing products offered for sale on websites including one operated by Costco Wholesale Corp. whose packaging was almost identical to Chachere’s trade dress.

Chachere’s said it’s also been contacted by customers and store personnel who were confused by the similarity of Big Easy’s packaging to Chachere’s.

It asked the court to bar further infringement of its trade dress, and for an order for the destruction of all infringing packaging and promotional material. Additionally, Chachere’s asked for awards of money damages, Big Easy’s profits attributable to the alleged infringement, attorney fees and litigation costs.

Big Easy didn’t respond immediately to an e-mailed request for comment.

Chachere’s is represented by Richard K. Leefe of Leefe Gibbs Sullivan Dupre & Aldous LLC of Metairie, Louisiana and Thomas W. Brooke of New York’s Holland & Knight LLP.

The case is Tony Chachere’s Creole Foods of Opelousas Inc., v. Big Easy Foods of Louisiana LLC, 6:11-cv-01712-RFD-CMH, U.S. District Court, Western District of Louisiana (Lafayettte).

For more trademark news, click here.


NinjaVideo Founder Enters Guilty Plea for Copyright Infringement

One of the founders of a website that enabled unauthorized downloading of television programs and movies entered a guilty plea in a criminal copyright-infringement case, according to a statement from the U.S. Attorney’s Office in Alexandria, Virginia.

Mathew David Howard Smith, 23, of Raleigh, North Carolina, pleaded guilty to conspiracy and criminal copyright infringement in federal court Sept. 23.

He and four others associated with NinjaVideo were indicted Sept. 9. He acknowledged that his company collected more than $500,000 during its two years of operation. Visitors to the NinjaVideo website could download some content for free, and could get access to other material by making donations to the site.

Smith faces a maximum prison term of five years for each count for which he pleaded guilty. His sentencing is set for Dec. 16.

The other four defendants are scheduled for a jury trial beginning Jan. 20, according to the government statement.

Hard Rock Cafe Asks Court to Declare T-Shirt Doesn’t Infringe

Hard Rock Café International (USA) Inc. of Orlando, Florida, asked a federal court to declare it’s not infringing a trademark claimed by a former employee of the Seminole Tribe of Florida. The tribe acquired the Hard Rock brand in 2007, according to the Hard Rock Cafe website.

The suit relates to a T-shirt design created in connection with the tribe’s Seminole Star Search program. The shirt has an ornamental design based on a tattoo on the arm of Micki Free, of Hollywood, Florida.

According to papers filed in federal court in Orlando, Florida, Free is the former director of Seminole Heritage Events & Promotions. In 2009 he approached Hard Rock about creating a line of co-branded clothing to benefit the tribe’s Star Search program.

Hard Rock arranged a license agreement with its clothing vendor, Entertainment Outfitters LLC. The vendor was to develop and manufacture the clothing line, which would be sold to Hard Rock for resale in its outlets, according to the complaint. Royalties would be paid by Entertainment Outfitters to the tribe.

One of the designs included elements from Free’s tattoos, Hard Rock said in its pleadings, claiming Free and his American Horse LLC company approved the clothing designs and “did not object in any fashion to the use” of the tattoo design.

Free’s employment was terminated by the tribe in May, according to the complaint, and afterward he sent a letter to Hard Rock claiming copyright, trademark and publicity-rights infringement based on the T-shirt design.

Hard Rock asked the court to declare that the design was covered by a written license, that Free had agreed to its use, and that the tattoo is not a “likeness” under Florida law related to an individual’s publicity rights.

Free didn’t respond immediately to an e-mailed request for comment. The case was originally filed in Florida state court and transferred to federal court Sept. 22.

Hard Rock is represented by Frank R. Jakes and Joseph J. Weissman of Johnson, Pope, Bokor, Ruppel & Burns LLP of Tampa, Florida. Free’s American Horse is represented by Dennis R. O’Connor of Ogden, Sullivan & O’Connor PA of Orlando, Florida.

The case is Hard Rock Cafe International (USA) Inc. v. American Horse LLC., 6:11-cv-01554-GAP-DAB, U.S. District Court, Middle District of Florida (Orlando).

For more copyright news, click here.

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