Tyson Foods, Marzetti, ABC, Ivi: Intellectual Property

Tyson Foods Inc., the largest U.S. meat processor, was sued by Finland’s Neste Oil Oyj for infringing a patent on motor fuels made partly from chicken fat.

Neste contends Dynamic Fuels LLC, a joint venture between Springdale, Arkansas-based Tyson and Tulsa, Oklahoma-based Syntroleum Corp., is making a product that violates its newly issued patent 8,187,344, which covers NExBTL diesel fuel.

“Defendants have no license or other authorization to use the inventions” and owe damages, Neste said in a complaint filed yesterday in federal court in Wilmington, Delaware, the same day the patent was issued. The Espoo, Finland-based company has invested 1.5 billion euros ($1.86 billion) in diesel production, according to a statement.

“Syntroleum has not infringed any of Neste’s alleged patent rights and Syntroleum intends vigorously to defend against the complaint’s allegations, and is confident that its position will be vindicated,” the company said in a statement.

Gary Mickelson, a spokesman for Tyson, deferred comment to Syntroleum.

The case is Neste Oil Oyj v. Dynamic Fuels LLC, 12-cv-662, U.S. District Court, District of Delaware (Wilmington).

EU Ministers Fail to Agree on Location of Patent Court

Danish Business Minister Ole Sohn said European Union ministers couldn’t decide in talks yesterday on the location of a European Union patent court, the last obstacle toward agreeing on an EU-wide patent system.

EU leaders will try to strike a deal at talks next month, he told reporters yesterday.

For more patent news, click here.


Marzetti’s ‘Texas Toast’ Not a Protectable Trademark, Court Says

T. Marzetti Co., a food company based in Columbus, Ohio, lost a trademark challenge against competitor Roskam Baking Co. of Grand Rapids, Michigan.

A federal appeals court rejected Marzetti’s claim of trademark infringement related to Roskam’s use of the term “Texas Toast” in connection with packaged croutons.

Marzetti had sought to register “Texas Toast” and “The Original Texas Toast” with the U.S. Patent and Trademark Office, according to the May 25 opinion from the 6th U.S. Circuit Court of Appeals in Cincinnati. Although the patent office originally denied both applications, it withdrew its opposition in November 2009. Marzetti had filed the trademark-infringement suit in federal court in Columbus in July 2009.

The trial court said that the term “Texas Toast” was generic with reference to croutons. Marzetti then filed its appeal. Roskam filed what are known as “oppositions” to the issuance of these marks with the patent office in 2010.

The appeals court said a consumer-awareness survey conducted by Marzetti found that a relevant consumers didn’t identify “Texas Toast” as a brand of croutons. The fact that Marzetti itself referred to Texas toast croutons as a type of product in its annual report instead of a brand also influenced the appeals court.

It agreed with the trial court that “Texas Toast” is generic for some bread products, including sliced bread, frozen garlic bread and croutons.

Marzetti’s case was argued by Brian J. Downey of Frost Brown Todd LLC of Cincinnati. Roskam’s case was argued by Matthew J. Gipson of Price Heneveld LLP of Grand Rapids.

The appellate case is T. Marzetti Co. v. Roskam Baking Co., 10-3784, U.S. Court of Appeals for the Sixth Circuit. The lower court case is T. Marzetti Co. v. Roskam Baking Co., 2:09-cv-00584-ALM-NMK, U.S. District Court, Southern District of Ohio (Columbus).

Raids at South Carolina Beach Festival Net $500,000 of Fake Goods

More than $500,000 worth of counterfeit goods were seized from vendors at a South Carolina festival over the Memorial Day weekend, the Carolina Live website reported.

Among the companies whose marks appeared on allegedly fake products were Burberry Group Plc, Coach Inc., Nike Inc., Chanel SA, and Jimmy Choo Ltd., according to Carolina Live.

Vendors at the state’s Atlantic Beach Bike Fest had been required to sign an agreement barring the sale of counterfeit goods, Carolina Live reported.

South Carolina Secretary of State Mark Hammond told Carolina Live he encourages customers to question “inappropriate pricing or markings” on so-called “designer” items.

For more trademark news, click here.


ABC Urges Judge to Shut Down Aereo Over Copyright Violations

Broadcasters including Walt Disney Co.’s ABC told a judge the Barry Diller-backed online television service Aereo Inc. should be shut down because it lets users view programs through the Web in violation of copyrights.

The networks sued New York-based Aereo in March, saying that it hadn’t paid to offer their programming through the Internet service, which was set to begin that month. Aero collects over-the-air signals that subscribers can tap from a video recorder for $12 a month. The broadcasters said Aereo could reduce their advertising revenue.

Aereo, during opening statements yesterday in Manhattan before U.S. District Judge Alison Nathan, countered that consumers have a right to watch TV shows using an antenna without infringing copyrights.

“Aereo is taking the plaintiffs’ broadcast signals and reprocessing them so they can be streamed over the Internet,” Steven Fabrizio, a lawyer for the networks, told the judge. “That is a violation of copyright law.”

The broadcast networks also argued that Aereo, by transmitting programs live, is engaging in a public performance, which under copyright law requires a license.

“What the consumer is doing is playing back one unique copy solely to himself,” John Englander, a lawyer for Aereo, told the judge. “This is a quintessentially private performance.”

The broadcasters said Aereo could reduce their revenue because its audience wouldn’t be measured for ratings. Companies such as ABC and CBS Corp. charge advertisers rates based on the number of viewers who watch the programs where the ads appear. Nielsen Media Research measures the number of viewers.

Aereo said in February that Diller’s digital media company, IAC/InterActive Corp., led a $20.5 million round of financing for the company. Diller, who is on Aereo’s board, once ran News Corp.’s Fox Broadcasting Co.

Chet Kanojia is the founder and chief executive officer of Aereo. He is also chairman of Navic Systems Inc., a provider of computer-programming services based in Waltham, Massachusetts. He is scheduled to testify in the trial.

The cases are American Broadcasting Cos. v. Aereo Inc., 12-1540, and WNET v. Aereo, 12-1543, U.S. District Court, Southern District of New York (Manhattan).

Ivi Asks Appeals Judges to Overturn Web TV Service Shutdown

Ivi Inc., the online company that streamed television programs to subscribers without the authorization of the broadcasters, argued in an appeals court for a reversal of a ruling that shut its service.

Ivi, based in Seattle, and its founder, Todd Weaver, appealed a February 2011 decision by U.S. District Judge Naomi Buchwald in New York granting CBS Corp. and Walt Disney Co.’s ABC a preliminary injunction that stopped Ivi from retransmitting the broadcasts of their programs on the Internet.

Ivi’s lawyer Lawrence Graham told the appeals court in Manhattan yesterday that its broadcasts were similar to those of cable TV systems, so the company should be eligible for a license. Ivi “receives primary signals and passes them over as a secondary transmission,” which defines a cable system, Graham said.

“The Internet is not a cable system,” Robert Garrett, a lawyer for the networks, told the judges. “Anyone with a television set and an Internet connection could become a cable system.”

In the lower-court ruling, Buchwald said the broadcasters had “demonstrated a likelihood of success on the merits of their copyright claim.” The appeals judges are to rule later.

The appeal is WPIX v. Ivi, 11-788, 2nd U.S. Circuit Court of Appeals (Manhattan). The lower-court case is WPIX v. Ivi Inc., 10-07415, U.S. District Court, Southern District of New York (Manhattan).

For more copyright news, click here.

Trade Secrets/Industrial Espionage

Posco Says Nippon Steel Trade Secret Complaint Hasn’t Arrived

Posco, the South Korea manufacturer of hot rolled steel, has yet to be served with court papers in Nippon Steel Corp.’s trade-secrets case.

In a May 25 regulatory filing, the Gyeongbuk, Korea-based company said that while it has read Nippon Steel’s press statement about the suit, it may take as long as six months to receive the relevant court filing. That’s because complaints filed in a foreign country are delivered to relevant parties through the foreign affairs ministries of each country, which can be a lengthy process, Posco said.

As soon as it officially receives the complaint from the Japanese court, Posco said it will “promptly disclose material information with regard to the lawsuit.’

Nippon Steel filed the suit in Tokyo District Court in April, seeking 100 billion yen ($1.2 billion), saying its trade secrets were being used by the Korean company. The Japanese company is seeking an order against Posco’s high-end electrical steel products, according to a Nippon Steel statement.

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