Apple, Time Warner, Super Bowl: Intellectual Property

Feb. 1 (Bloomberg) -- Apple Inc. failed to persuade a U.S. appeals court to review its decision that lets Samsung Electronics Co. continue selling the Galaxy Nexus smartphone while a patent-infringement case is pending.

An October decision, which said Apple needed to show that the patented search feature was a key reason consumers bought the Samsung smartphone, will stand, the U.S. Court of Appeals for the Federal Circuit said in an order posted on its electronic docket yesterday.

Apple sought to have the earlier decision by a three-judge panel considered by all active judges of the appeals court, which specializes in patent law.

In a separate dispute before the Federal Circuit involving Samsung, Apple is trying to halt sales of Samsung products that were the subject of a trial Apple won in August. The federal judge in California declined that request, citing legal reasoning in the Federal Circuit’s October ruling.

The standard would make it “essentially impossible for a patentee to halt a direct competitor’s deliberate and successful copying of the patentee’s innovative designs and features for use in competing products,” Apple told the Washington-based court in a filing Jan. 16.

Spokesmen Kristin Huguet of Apple and Adam Yates of Samsung said their companies had no comment.

In a Jan. 11 filing in the Galaxy Nexus case, Samsung said the October ruling, requiring a link between the patented feature and consumer demand, is “an inherent, well-established” part of legal analysis used to determine whether a patent owner would be harmed if an infringing product stays on the market.

A trial in the Galaxy Nexus cases is scheduled for next year, and the issue before the appeals court was whether to halt sales before any violation is found.

The second case, still before the Federal Circuit, involves what standard to use after a jury has found infringement. Apple won a $1 billion verdict against Samsung in August. U.S. District Judge Lucy Koh, who had declined to block the sales of more than two dozen models of Samsung products that were the subject of the trial, on Jan. 29 denied Samsung’s request to throw out the verdict.

The Galaxy Nexus case is Apple Inc. v. Samsung Electronics Co., 12-1507, U.S. Court of Appeals for the Federal Circuit (Washington). The lower court case is Apple Inc. v. Samsung Electronics Co., 12-630, U.S. District Court for the District of California (San Jose).

J&J Gets EU Complaint With Novartis on Pay-for-Delay Deal

Johnson & Johnson and Novartis AG were sent antitrust objections by European Union regulators over a pay-for-delay deal that may have hampered the sale of generic versions of the painkiller fentanyl in the Netherlands.

The European Commission said the Dutch units of both companies struck a so-called co-promotion agreement in July 2005 to avoid competing with each other. This deprived Dutch fentanyl customers of access to a cheaper painkiller for 17 months, it said in an e-mailed statement.

“The commission is determined to fight undue delays in the market entry of generic medicines so that European citizens have access to affordable health care,” EU Competition Commissioner Joaquin Almunia said in the statement.

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. Les Laboratoires Servier, H. Lundbeck A/S and Teva Pharmaceutical Industries Ltd., the world’s largest generic drugmaker, were last year sent statements of objections in probes over possible delays for generic drugs.

Johnson & Johnson and its unit Janssen-Cilag “will carefully examine the statement of objections and want to stress that it does not represent the commission’s final decision,” said Stefan Gijssels, a spokesman for Janssen in Beerse, Belgium, in an e-mailed statement. Johnson & Johnson is based in New Brunswick, New Jersey.

“Janssen continues to believe that these arrangements were legitimate,” Gijssels said. “We are cooperating fully” with the commission.

Novartis, based in Basel, Switzerland, said it and its Sandoz unit would examine the EU complaint and “avail themselves of their rights of defense,” spokesman Eric Althoff said by e-mail. The EU statement allows the company “the opportunity to comment on the factual and legal issues that led the commission to believe that an infringement of the EU competition rules may have occurred.”

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TWX’s DC Comics Opposes ‘Superman’ Mark for Fitness Services

Time Warner Inc.’s DC Comics unit asked an Australian court to overturn a trademark decision related to its “Superman’ franchise, Australia’s 9News National website reported.

The registrar of trademarks permitted registration of ‘‘Superman Workout” by a fitness company despite DC Comics’ argument that its cartoon character is the first thing that comes to mind when people hear the word “Superman,” according to 9News National.

Turning instead to the dictionary definition of superman and a definition authored by 19th-century German philosopher Friedrich Nietzsche, the registrar of trademarks said the fitness company’s use of the term wasn’t likely to confuse people, 9News National reported.

Counsel for DC comics told the court that the use of the term in connection with health and fitness services would call up the “Superman” image because “my client enjoys a reputation in Superman,” according to 9News National

Saul Zaentz Seeks ‘Middle-Earth’ Trademark For Amusement Park

Saul Zaentz Co., the Berkeley, California-based film-production company, filed two new trademark applications related to its IP rights to J.R.R. Tolkien’s “Hobbit” and “Lord of the Rings” books.

According to the database of the U.S. Patent and Trademark Office, Zaentz is seeking to register “Middle-Earth” as a trademark for vegetable salads, and for management of campground facilities, organization of sightseeing tours, booking of campground accommodations, and amusement services, including pay areas, rides, booking for special events at an amusement park, and the provision of theme-park services.

Previously, the company registered the mark for a wide range of other uses, including jewelry boxes, online retail store services, computer games, online chat rooms, pewter and glass goblets, and jigsaw puzzles.

Government Seizes Counterfeit NFL Merchandise Worth Millions

More than $13.6 million worth of fake National Football League merchandise has been seized since Sept. 1 as part of a U.S. Immigration and Customs Enforcement operation.

According to a statement from ICE, “Operation Red Zone,” begun on that date, was set up to interdict international shipments of fake merchandise. Warehouses, stores, flea markets, online vendors and street vendors selling counterfeit game-related merchandise were targeted.

Confiscated items included fake jerseys, ball caps, t-shirts, jackets and souvenirs, according to the statement. More than 160,000 fake Super Bowl-related items were seized.

The operation will continue through Feb. 6, three days after the Super Bowl game is played in New Orleans.

Homeland Security Investigations worked with EBay Inc.’s PayPal payment processor to identify bank accounts used to facilitate the transfer of money to the illegal counterfeiting operations, the government said in the statement.

Additionally, the government seized 313 websites trading in counterfeit goods. Visitors to those sites will now find a banner informing them that the domain name has been seized by the federal government.

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CEA, EFF Each Files Brief Supporting Dish in AutoHop Dispute

Three electronics-industry associations filed a joint friend-of-the court brief supporting Dish Network Corp. in a lawsuit brought in Los Angeles federal court in May by News Corp.’s Fox Broadcasting unit.

Their brief, filed Jan. 29, urges the appeals court to affirm a lower court’s refusal to block Dish’s so-called AutoHop features, which permits viewers to skip commercials. Fox sued Dish, claiming the service would destroy the “advertising supported ecosystem” that provides free, over-the-air primetime television.

In her Nov. 7 ruling, U.S. District Judge Dolly Gee said Fox failed to demonstrate that the service offered by Englewood, Colorado-based Dish caused the network irreparable harm.

Fox then filed an appeal with the San Francisco-based federal appeals court. The Consumer Electronics Association, the Computer and Communications Industry Association and the Internet Association filed their brief in support of Dish, saying, “recording for personal private viewing does not infringe; nor does declining to watch commercials,” according to their joint statement.

A second joint amicus brief in support of Dish was filed Jan. 29 by San Francisco-based Electronic Frontier Foundation, Washington-based Public Knowledge and New York’s Organization for Transformative Works.

They argued that autohopping promotes the progress of science, that it doesn’t allow consumers to create “libraries’ of content, and that there is no effect on any likely markets.

The lower court case is Fox Broadcasting v. Dish Network, 12-cv-04529, U.S. District Court, Central District of California (Los Angeles). The appeal is Fox Broadcasting Co. v. Dish Network LLC, 12-57048, U.S. Court of Appeals for the Ninth Circuit.

For copyright news, click here.

IP Moves

WWE Appoints Monty Sarhan General Counsel, Senior Vice President

World Wrestling Entertainment Inc. named Monty Sarhan as general counsel and senior vice president, the Stamford, Connecticut-based entertainment company said in a statement.

Sarhan previously was senior vice president of business and legal affairs for Viacom Media Networks. Before that, he was the founder and chief executive officer of Cracked Entertainment. He has practiced law at New York’s White & Case LLP.

According to yesterday’s WWE statement, while Sarhan was with Viacom, he negotiated agreements that allowed the company’s EPIX premium movie network to be made available to subscribers on Android devices, Roku and the Xbox 360.

He has also negotiated agreements with Sony Corp., Nintendo Co. and Microsoft Corp. that established MTV Games as a game publisher.

Sarhan has an undergraduate degree in history and political science from Tufts University, a master’s degree in international relations from Boston University and a law degree from Duke University.

For the second year in a row, WWE teamed up with Post Holdings Inc.’s Post Foods unit to place one of the wrestling stars’ pictures on boxes of Pebbles cereal.

This year, according to a statement from the wrestling-entertainment company, WWE star John Cena began appearing on 8 million boxes of Cocoa Pebbles and Fruity Pebbles in January.

Cena was also featured on Pebbles boxes last year, the company said. Andrew Judelson, WWE’s executive vice president, sales and partnership marketing, said in the statement that the promotional arrangement is a ‘‘multi-year deal,” and that there is a natural affinity between the St. Louis-based breakfast-cereal company and his company’s family-oriented entertainment.

To contact the reporter on this story: Victoria Slind-Flor in San Francisco at

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

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