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J&J, Notre Dame, Prada, Louboutin: Intellectual Property

Oct. 24 (Bloomberg) -- Johnson & Johnson and Novartis AG are under investigation by the European Union’s antitrust regulator over contracts that may have hampered the sale of generic versions of pain killer Fentanyl in the Netherlands.

The EU authority said it’s probing contractual arrangements between J&J and Novartis that may have had the “object or effect of hindering entry” of the generic drug onto the Dutch market. Basel, Switzerland-based Novartis owns Sandoz, a generic-drugmaker.

“Pharmaceutical companies are already rewarded for their innovation efforts by the patents they are granted,” EU Antitrust Commissioner Joaquin Almunia said in an e-mailed statement. “Paying a competitor to stay out of the market is a restriction of competition that the commission will not tolerate.”

Antitrust regulators on both sides of the Atlantic are focusing on how settlements between companies that make branded medicines and generics producers might harm consumers. Bayer AG was among drug firms told by EU officials in January to submit details of patent-settlement deals that may be used to delay the sale of generic versions of medicines. Drug developers use various ways to delay generics, the EU said in a 2009 report.

The investigation is related to a contractual agreement J&J had with Sandoz in the Netherlands and is limited to that country, Stefan Gijssels, a spokesman for J&J’s Janssen subsidiary, said in a telephone interview. The company will cooperate fully with authorities, he said.

“It’s important to underline that the commission has not made a finding that Janssen did something wrong in the Netherlands,” Gijssels said. “It’s the start of an investigation.”

“We don’t comment on ongoing procedures,” Eric Althoff, a spokesman for Novartis, said in an e-mail.

EU antitrust regulators are also investigating Teva Pharmaceutical Industries Ltd., the world’s largest generic drugmaker, and Cephalon Inc. over a 2005 agreement that may have delayed generic versions of Provigil. Teva last week completed its acquisition of Cephalon after agreeing to divest Cephalon’s marketing rights in France for a generic version of narcolepsy drug Provigil.

AstraZeneca Plc last year partly lost an appeal at the EU’s second-highest court over a commission decision that it had misled patent officials and flouted antitrust rules to keep a generic competitor off the market. The London-based company has an appeal pending.

For more patent news, click here.


Notre Dame Tells Kansas High School Hands Off Our Leprechaun

The University of Notre Dame has told a Kansas high school to quit using the leprechaun logo associated with its “Fighting Irish” football team, the South Bend Tribune reported.

While the school “appreciates the intended respect that high schools show by desiring to align with Notre Dame,” the South Bend, Indiana-based university will enforce its trademark rights, Notre Dame spokesman Dennis Brown told the Tribune.

The school has previously enforced its trademark against high schools in El Paso, Texas, and Springfield, Ohio, the newspaper reported.

The high school in Chapman, Kansas, would be permitted to keep the Fighting Irish nickname, while barred from profiting from it, or from using the leprechaun mark, according to the newspaper.

Fake Prada, Nike Merchandise Seized in North Carolina Raid

Prada SpA and Nike Inc. are among the companies whose trademarks were found on counterfeit goods seized in a raid in Shelby, North Carolina, the Shelby Star newspaper reported.

The fake goods were sold openly for about half the price of genuine articles, according to the newspaper.

Three Shelby residents were arrested and charges with felony trademark infringement, according to the Star.

Police officials told the Star that going after trademark infringers was “new to us” and this raid was in response to “the first major crime we’ve addressed” dealing with fake consumer goods.

Louboutin Asks Appeals Court to Bar St. Laurent Red Soles

Christian Louboutin SA has made a court filing arguing that a trial judge in New York erred in failing to bar Yves St. Laurent America from selling red-soled shoes.

In its Oct. 17 brief, the French maker of high-end red-soled shoes told a New York-based appeals court that it disagreed with the trial court’s contention that barring others from using red soles on their shoes would “cast a red cloud over the whole industry.” Louboutin argues that the court failed to understand that the company “does not sell total outfits, only shoes and accessories.”

The French shoe company argued that the trial court “simple ignored its own finding that the Red Outsole Mark has become a strong source identifier and is indeed world famous.”

Louboutin noted in its court filing that the “Keds blue rectangle on the heel, the Burberry plaid, the Gucci stripes all act as trademarks because the consuming public has recognized them as indicators of source.”

The shoe company asked the appeals court to reverse the lower court’s denial of a request to bar the sale of St. Laurent from selling red-soled shoes.

Louboutin’s shoes won a measure of fame when they were worn by members of the cast of the “Sex and the City” television program. The shoes may sell for as much as $3,700 a pair.

The case is Christian Louboutin S.A. v. Yves St. Laurent America Inc., 11-3303, 2nd U.S. Circuit Court of Appeals (New York). The lower court case is Christian Louboutin SA v. Yves Saint Laurent America Inc., 1:11-02381-VM, U.S. District Court, Southern District of New York (Manhattan).

For more trademark news, click here.


Apple Accused of Infringing Texas Photographer’s Copyrights

Apple Inc., maker of the iPhone and iPad, was sued for copyright infringement by a Texas photographer.

Shanti Deva Korpi of Austin, Texas, claims two apps for iPhones sold through Apple’s App Store have used 80 of her photos without permission and have stripped off all of her copyright information. Korpi published her photos through Yahoo! Inc.’s Flikr image-hosting website, she said in her complaint filed Oct. 18 in federal court in Austin.

Even though most of the iPhone apps are created by third-party vendors, Korpi sued Cupertino, California-based Apple because the App Store is “the sole retail outlet for authorized iPhone and iPad apps, and Apple derives a 30 percent profit from each and every sale,” she said in her complaint.

Korpi said she complained to Apple at least six times since June and one of the two allegedly infringing apps -- “Unofficial Guide to Hipstamatic” -- is still for sale at the App Store. When accessed Oct. 21, the App Store no longer had a listing for this application.

She asked the court to bar further unauthorized use of her images, and for awards of money damages, attorney fees and litigation costs.

The photographer is represented by R. Buck McKinney of The Law Office of Buck McKinney PC of Austin, Texas.

The case is Shanti Deva Korpi v. Apple Inc., 1:11-cv-00906-LY, U.S. District Court, Western District of Texas (Austin).

Righthaven’s Standing Questioned by South Carolina Judge

Righthaven LLC, which has filed more than 150 copyright-infringement cases in the past two years, received another setback in its campaign to enforce copyrights to newspapers owned by Stephens Media Group of Las Vegas and Denver’s MediaNews Group.

In an Oct. 20 order, a federal judge in Charleston, South Carolina, gave Las Vegas-based Righthaven until Oct. 28 to convince her not to dismiss a case related to content from MediaNews Group’s Denver Post.

She said if Righthaven can’t persuade her that its copyright assignment agreement with MediaNews Group gives it standing to sue, she will dismiss the case. Earlier courts in Nevada and Colorado also questioned Righthaven’s right to sue.

Righthaven filed the suit in December 2010, claiming that owner of the website had infringed its copyright by publishing a story related to the Tea Party without permission.

Dana Eiser of Summerville, South Carolina, the owner of the website, has argued that the court doesn’t have jurisdiction over the dispute and that Righthaven doesn’t have the standing to pursue an infringement claim.

The case is Righthaven v. Dana Eiser, 2:10-cv-03075-RMG, U.S. District Court, District of South Carolina (Charleston).

For more copyright news, click here.

Trade Secrets/Industrial Espionage

Markit to Settle Suit Against Former Employees Who Formed Rival

Markit Group Ltd. agreed to settle a lawsuit against two former employees in Singapore after they pledged not to compete with the firm for one year.

Zhibo Li, previously a vice-president of sales, and Shiyang Cui, who was an associate vice-president, are permanently banned from using or disclosing information obtained from Markit, according to a filing with the Singapore High Court this month.

Markit, a swap prices data provider, sued Li and Cui last month, accusing them of breaching their employment contracts and misusing the firm’s trade secrets to set up rival Fundamentrix Pte. Li and Cui are also banned from soliciting clients of the London-based company for one year.

Caroline Lumley, a spokeswoman at Markit, declined to comment on the agreement Oct. 20. Both Li and Cui didn’t reply to two e-mails seeking comment.

Markit, with more than 2,200 employees, provides derivative and bond data to customers, according to its website. Bloomberg LP, the owner of Bloomberg News, competes with Markit in selling information to the financial-services industry.

The case is Markit Asia Pte. & Ors v. Zhibo Li & Ors S628/2011 in the Singapore High Court.

Trade-Related IP

TPP Trade Deal to Have Framework Next Month, U.S. Official Says

Countries participating in the Trans-Pacific Partnership negotiations will agree on a basic framework for the trade deal next month, a U.S. official said.

The goal is to have an outline in time for the Asia-Pacific Economic Cooperation summit meeting, Suresh Kumar, assistant secretary of the U.S. Department of Commerce, said in an interview Oct. 21 in Tokyo. Principles such as transparency and ensuring intellectual property rights should be decided in time for the APEC summit, he said, which will take place Nov. 12-13 in Honolulu.

“There will be a framework for what the TPP itself will look like in time for the APEC meeting,” Kumar said. He said the U.S. hopes the talks will conclude within “months” and not beyond one year.

Kumar said the U.S. welcomes Japan’s interest in participating in the nine-country TPP, as the agreement is known. Japan’s Prime Minister Yoshihiko Noda, who has vowed to say whether his country will join the TPP “soon,” faces opposition within his ruling Democratic Party of Japan from members seeking to protect farmers.

Noda told public broadcaster NHK the hurdle to joining the accord may be higher once the rules have been decided on. A group of more than 200 lawmakers, mostly from the DPJ, adopted a resolution today opposing Japan joining the TPP talks by the APEC summit, Kyodo News reported.

“If a partnership is established, the deal is done,” Kumar said. “Then you don’t get to shape it.”

The TPP negotiations have involved Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore and Vietnam, in addition to the U.S.

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

To contact the editor responsible for this story: Michael Hytha at

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