Visa, Starbucks, SeaWorld, Largan: Intellectual Property

Sept. 26 (Bloomberg) -- Visa Inc. and MasterCard Inc. won a tentative court ruling they don’t infringe a patent owned by SmartMetric Inc., a technology development company that seeks $13.4 billion in damages.

U.S. District Judge Michael W. Fitzgerald issued his tentative ruling yesterday at a hearing in Los Angeles.

“I don’t see there’s anything to determine here for a jury,” the judge said at the hearing.

SmartMetric sued Visa and MasterCard two years ago, claiming they infringed its patent for a system for automatic connection to a network. The company claimed it was entitled to a royalty of 25 percent of the anticipated savings Visa and MasterCard would receive from a drop in credit and debit-card fraud by the introduction of so-called EMV cards in the U.S.

The EMV cards, which are already used in Europe, include a microchip instead of a magnetic strip to access a payment system. The SmartMetric patent pertains to the process by which the payment system selects a network for a card transaction, Patrick Bright, the company’s lawyer, said at yesterday’s hearing.

Bright said he should be allowed to take his evidence before a jury.

“You substituted the court as the trier of fact,” Bright told the judge. “That is reversible error.”

Joseph Melnik, a lawyer for Visa, said at the hearing that the Visa and MasterCard systems do fundamentally different things than what’s claimed by the patent. An earlier lawsuit brought by SmartMetric against the two companies resulted in a court ruling that there was no infringement, according to a Visa court filing.

Fitzgerald didn’t issue a final ruling at the hearing and took the motion under submission.

In dispute is patent 6,792,464, which was issued in September 2004. The patent suit was filed in August 2011. The case is SmartMetric Inc. v. MasterCard International Inc., 11-cv-07126, U.S. District Court, Central District of California (Los Angeles).

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Starbucks’ Trademark Quest Points to Soda-Producing Machines

Starbucks Corp., the Seattle-based coffee chain, filed an application to register a trademark that could be used for a home soda machine like those made by Israel’s SodaStream International Ltd.

The coffee company filed an application Sept. 18 to register the term “Fizzio,” according to the database of the U.S. Patent and Trademark Office.

The application is for the term’s use with a wide range of food and beverages, one of which is “machines for the production of beverages.”

The application also lists “flavored and unflavored water; mineral water; sparkling water; soft drinks; fruit drinks; fruit juices; sparkling fruit and juice based beverages; soda beverages; frozen fruit beverages; frozen fruit-based beverages.”

In July Green Mountain Coffee Roasters Inc.’s Keurig unit filed an application to register a mark it said would be used with “machines for the production of cold water, soda, still, carbonated and sparkling beverages.”

The term Green Mountain is seeking to register is “Karbon.” At that same time, Waterbury, Vermont-based Green Mountain filed a second application to register “Bolt” for use with carafes.

One of the selling points for SodaStream’s product is that it cuts down on waste because customers will be using a refillable container to make sparking beverages, instead of buying soda in plastic bottles that need to be recycled.

SeaWorld Seeks Trademark on Name of Japanese Island, Horse Breed

SeaWorld Entertainment Inc., the subject of a critical documentary over the use of killer whales in its theme parks, may be going in a new direction in efforts to combat an attendance slump.

The Orlando, Florida-based company filed an application Sept. 19 to register the term “Yonaguni” as a trademark, according to the U.S. Patent and Trademark Office database.

The term is to be used for the “entertainment services in the nature of an animated television series for children,” the company said in its application.

The application also covers the use of the term for the production of live-action and animated entertainment shows and interactive programs for distribution via audio and visual media, and electronic means, and for live performances by costumed characters.

Yonaguni is the name both of a breed of horse found on Japan’s western islands, and the westernmost inhabited island in that chain. There is also a stone formation beneath the sea near that island that is known as the Yonaguni Monument, and is believed by some to be a sunken man-made structure.

SeaWorld received negative publicity from “Blackfish,” released in U.S. theaters on July 19, which began attracting attention after its premiere at the Sundance Film Festival in January.

“Blackfish” argues that killer whales shouldn’t be held in captivity, and that the company ignored warning signs of the danger to handlers. SeaWorld has countered with a detailed critique of the film, calling it “a dishonest movie” in a statement distributed to critics and refuting many of its conclusions.

“There is no higher priority for SeaWorld than the safety of guests and staff and the welfare of our animals,” the company said in a statement following the release of the film.

Pho Holdings Backs Down in Trademark Claim Against Mo Pho

A Vietnamese restaurant in South London received a cease-and-desist letter from a restaurant chain accusing it of infringing a “pho” trademark, the U.K.’s Guardian newspaper reported.

Pho is Vietnam’s national dish and a staple at Vietnamese restaurants, according to the Guardian.

Pho Holdings Ltd., which sent the notice to the Mo Pho restaurant, said it had registered the mark six years earlier and no one else was entitled to use the word in a restaurant name, the newspaper reported.

The company has since changed course, saying it had made a mistake, wouldn’t file a trademark infringement suit and hadn’t meant to suggest that the trademark conveyed ownership of pho, according to the Guardian.

Diamond Resorts Claims Diamond Resort Marketing Infringes Marks

Diamond Resorts International Inc., the Las Vegas-based time-share vacation-property operator, sued a Virginia company that offers time-share marking services for trademark infringement.

Diamond Resort Marketing Services Inc. of Alexandria, Virginia, is accused of confusing the public by using marks that are similar to those belonging to the Las Vegas company.

According to the complaint filed Sept. 24 in federal court in Newark, New Jersey, Diamond Resort Marketing also used an Internet domain name -- -- that is also causes the public to assume falsely that the two entities are affiliated.

Diamond Resort Marketing allegedly uses similar names to trade on the goodwill established by the Las Vegas company, according to the complaint.

Diamond Resorts International asked the court for an order barring further use of the confusingly similar names, and asked that it be transferred the objectionable domain name.

Additionally, the company seeks money damages of at least $2 million per infringed trademark, and asked that they be tripled to punish the Virginia company for its actions, and for awards of litigation costs and attorney fees.

The suit also names Diamond Resort Marketing’s Web-hosting service and a privacy protection service that replaces visible contact information for a domain name with alternative information, concealing the identity of the true owner of the domain.

Diamond Resort Marketing didn’t respond to an e-mailed request for comment.

The case is Diamond Resorts Holdings LLC v. Host Department LLC, 2:13-cv-05689-SDW-MCA, U.S. District Court, District of New Jersey (Newark).

For more trademark news, click here.


Bollywood-Style Weddings Need Copyright Protection, Planners Say

India’s wedding industry, which is growing 25 percent a year, is in need of copyright protection, according to a meeting of wedding planners, Asian Age reported.

At the “Copyright of Wedding” conference, held in Guragon, India, wedding planners said the growing demand for “Bollywood-style” wedding film videos means months of costly preparation, and many planners say their ideas have been ripped off and credited to others often within less than a week, according to Asian Age.

Michael Menezes of the Showtime Group wedding organizers told the conference that protecting his work is difficult because intellectual property rights presently don’t exist in the field, the newspaper reported.

At the conference attorney Umesh Sharma said when someone is accused of infringement in this category, offenders often manage to walk out of court with no more than a warning, according to Asian Age.

For more copyright news, click here.

Trade Secrets/Industrial Espionage

Largan Seeks Seizure of Ability’s Assets in Trade Secret Fight

Largan Precision Co., a Taiwanese maker of lenses for handset cameras, has asked a court in Taiwan to seize a competitor’s working capital, liquid assets and production equipment under claims the competitor stole its trade secrets, the China Post reported.

Ability Opto-Electronics Technology Co. is accused of applying for two patents based on technology brought to the company by four defecting Largan engineers without authorization, according to the newspaper.

Tauchung Hsien, Taiwan-based Ability has denied all allegations and said it will file a countersuit, China Post reported.

Largan and Ability are already engaged in a patent-infringement case that began in June, according to China Post.

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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