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Fresenius, Cronut, Malibu Media: Intellectual Property

July 3 (Bloomberg) -- Fresenius Medical Care AG won a U.S. appeals court ruling that will end a patent-infringement claim brought against it by Baxter International Inc. over kidney dialysis machines in 2003.

The U.S. Patent and Trademark Office canceled the Baxter patent after a review while the civil suit was still pending, so there is no longer any basis for Baxter’s claim, the U.S. Court of Appeals for the Federal Circuit in Washington ruled yesterday. The opinion was posted on the court’s website.

The case is Fresenius USA v. Baxter International, 12-1334, U.S. Court of Appeals for the Federal Circuit. The lower court case is Fresenius USA v. Baxter International, 03-cv-01431, U.S. District Court, Northern District of California (Oakland).

For more patent news, click here.

Trademark

Dueling Applications Filed to Register ‘Cronut’ as Trademark

In the past month and a half, three applications have been filed with the U.S. Patent and Trademark Office to register marks related to the “cronut” phenomenon.

Pastry Chef Dominique Ansel, who created the cronut and operates the Dominique Ansel Bakery in New York, filed his application May 19 and said he will use it for a wide range of bakery products.

Cronuts are a croissant and donut pastry hybrid that is becoming a trendy, high-calorie treat sold at bakeries unaffiliated with Ansel in London, Philadelphia, Los Angeles and New York.

On June 10, Stephen Foung of Needham, Massachusetts, filed an application to register “cronut hole” as a trademark, to be used for retail bakery shops.

The third application was filed June 17 by Crystalline Management LLC of Irving Texas. That application indicates that the mark would be used for both sweet and savory donuts.

In a June 28 posting on Facebook Inc.’s social-media site, Ansel said that he applied for the mark “against the type of bullying that is taking place now.”

He said in the posting that his “desire to protect the name is not an attempt to claim or take credit for all cooking methods associated with the recipe or all croissant and doughnut products in general.”

Ansel said he is seeking “protection against un-granted affiliations with the bakery or confusion from customers.”

NAACP Trademark Dispute With Abortion Opponent Set for Trial

A trademark dispute between the National Association for the Advancement of Colored People and a Virginia-based abortion opponent is scheduled for trial in December, according to a court filing.

Ryan Bomberger and his Radiance Foundation Inc. sued in February in federal court in Norfolk, Virginia, seeking a court declaration that he wasn’t infringing the 104-year-old civil rights group’s trademarks.

He said that his foundation, which aims to present “historical, cultural and statistical information with a Christian worldview on particular issues,” doesn’t harm the NAACP. He claims his alleged infringement falls within the First Amendment’s free speech protections.

He has compared abortion to slavery and on his TooManyAborted.com website said the civil-rights group should be renamed “The National Association for the Abortion of Colored People” because it supported a 2004 pro-choice event held by Planned Parenthood and related groups.

The Baltimore-based NAACP responded in April, objecting to ads placed on the toomanyaborted.com website with the text “Civil Wrong. The National Association for the Abortion of Colored People.” Additionally, the rights group said Bomberger’s use of its marks in Internet postings and on Facebook Inc.’s social-media site made no reference that such uses were intended to be satiric references to the NAACP.

The public is likely to be confused by Bomberger’s unauthorized use of the marks and may lead people to believe falsely that the NAACP is pro-abortion, the group said.

The NAACP asked the court to bar further infringement of its marks and to order the destruction of all infringing products and promotional materials. Additionally, the rights group asked for awards of money damages, attorney fees and litigation costs and asked that the damages be tripled to punish Bomberger for his actions.

The case is Radiance Foundation Inc. v. National Association for the Advancement of Colored People, 13-cv-00053, U.S. District Court, Eastern District of Virginia (Norfolk).

Abercrombie Defeats Sorrentino’s Claim over ‘Situation’ Marks

Abercrombie & Fitch Co. persuaded a federal court in Florida to dismiss a trademark lawsuit brought by a reality television star.

Michael P. Sorrentino, who won fame on Viacom Inc.’s “Jersey Shore” program, sued the retailer in November 2011, claiming T-shirts sold by the clothier infringed his trademarks by creating a “false affiliation” with his business interests. Abercrombie was selling “The Fictuation” shirts, which played on Sorrentino’s self-proclaimed name for his abdominal muscles, “the Situation.”

Sorrentino said in court papers that he sued in response to an Abercrombie statement in August 2011 that it was willing to pay him not to wear its clothing because he didn’t comport with the store’s image. Abercrombie told Sorrentino that the way he was portrayed on the program was not “brand appropriate.”

In its filing seeking dismissal of the case, Abercrombie argued that Sorrentino failed to state a claim for which the court could offer him any relief. The company said Sorrentino couldn’t claim his marks were infringed because he didn’t own the marks “GTL” and “The Situation.”

The clothing company also claims the T-shirts Sorrentino objected to fell into the realm of parody, which trademark law doesn’t find constitutes infringement.

In its June 28 ruling, the court said Abercrombie’s predominant customers are 15 to 22 years old while Sorrentino’s customer base comprises 18- to 34-year-olds. The companies’ products also were offered in different outlets, lessening the possibility of confusion under trademark law, the court said.

Sorrentino and Abercrombie advertised their products in different ways, the court said, and the Abercrombie parody is permitted under trademark law. Sorrentino failed to present evidence of actual confusion, unfair competition or false advertising, the court said.

The case is MPS Entertainment LLC v. Abercrombie & Fitch Stores Inc., 1:11-cv-24110, U.S. District Court, Southern District of Florida (Miami).

For more trademark news, click here.

Copyright

German Court Tells Malibu Media Adult Films Not Protectable

Malibu Media LLC, a maker of adult films, received a setback in its efforts to enforce its copyrights against unauthorized file-sharers in Germany, the TorrentFreak anti-copyright news site reported.

The District Court of Munich ruled that Malibu’s films aren’t entitled to protection under Germany’s copyright laws because of their “primitive depiction of sexual activities,” according to TorrentFreak.

The film company, which also filed multiple infringement suits in the U.S., had asked the court for permission to get the identities of those it claimed shared eight Malibu films, including “Flexible Beauty,” and “Young Passion,” the news website reported.

The court also said it wasn’t convinced Malibu actually owned the rights to the films because the company’s name wasn’t found anywhere on the disputed videos, according to TorrentFreak.

Beaulieu Group Wins $1.95 Million in Damages in Copyright Suit

Beaulieu Group LLC, a manufacturer of carpeting and floor tiles, was ordered to pay $1.95 million to a Georgia graphics arts company in a copyright infringement case.

Virtual Studios Inc. of Dalton, Georgia, sued Beaulieu in federal court in Chattanooga, Tennessee, in December 2011. It claimed that Beaulieu made use of Virtual’s room-scene software program beyond the terms of a license.

Virtual said that it learned that even though business between the two companies diminished, Beaulieu continued to use the product hundreds of times past the one-year license period and failed to pay fees for the additional use.

A jury on June 13 found that Virtual’s copyright was infringed. After the damages phase of the trial, the jury on June 17 awarded Virtual $1.95 million.

The case is Virtual Studios Inc. v. Beaulieu Group LLC, 1:11-cv-00359, U.S. District Court, Eastern District of Tennessee (Chattanooga).

For more copyright news, click here.

To contact the reporter on this story: Victoria Slind-Flor in San Francisco at vslindflor@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net

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