Nokia, It’Sugar, Against the Grain: Intellectual Property

Nov. 22 (Bloomberg) -- Sierra Wireless Inc., a Canadian maker of communications equipment, complained to European Union antitrust regulators over Nokia Oyj’s royalty rates for key patents.

Sierra Wireless, based in Richmond, British Columbia, alleges that Nokia charges widely different royalty rates to license so-called standard-essential patents used for mobile phones, imposed “unfavorable and unreasonable” royalty terms, and has refused to license key patents for 3G technology, according to a company statement. It also asked the U.S. Federal Trade Commission to investigate Nokia.

The EU is cracking down on potential patent abuse issues, including Google Inc.’s Motorola Mobility unit, Microsoft Corp., Apple Inc. and Samsung Electronics Co., trade victories in divergent court rulings across the world on intellectual property. The EU’s antitrust chief Joaquin Almunia has said he’s targeting “rules of the game” to prevent companies from unfairly leveraging their inventions to thwart rivals.

Antoine Colombani, a spokesman for the Brussels-based EU watchdog, said the commission has received the complaint and is looking at it.

“Nokia regrets that Sierra Wireless is wasting the time of the European Commission” and other agencies with “its frivolous complaints, rather than honoring its agreement with Nokia,” said Mark Durrant, a spokesman for the company. “Sierra Wireless has been in breach of Nokia’s existing license terms for several years” and has failed to pay Nokia the royalty fees it owes, he said.

The EU has opened probes into the possible misuse of patent injunctions by Motorola Mobility and Samsung, which is seeking to settle a case triggered by a dispute with Apple. It has also received complaints from Huawei Technologies Co. against InterDigital Inc. and Google against Nokia and Microsoft.

Nokia, which is selling its handset unit to Microsoft Corp., is seeking to boost licensing of its patents, chief financial officer Timo Ihamuotila said this week. The Espoo, Finland-based company is retaining patents to generate licensing income.

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Minnesota Twins Oppose WWE’s ‘Bella Twins’ Trademark Application

The Minnesota Twins Major League Baseball team has been granted a 90-day extension to file its opposition to a trademark application filed by World Wrestling Entertainment Inc. of Stamford, Connecticut.

The Minneapolis based Twins team is objecting to an application filed June 14 to register “Bella Twins” as a mark. According to the database of the U.S. Patent and Trademark Office, the mark would be used for wrestling entertainment and performances by professional wrestlers and entertainers.

WWE uses “Bella Twins” for twin sisters Brianna and Nicole Garcia-Colac.

The patent office’s Trademark Trial and Appeal Board has extended the time for the Minnesota Twins to file papers in opposition to the mark until Feb. 12.

NCAA Sues Electronic Arts Over Athlete Lawsuit Settlement

The National Collegiate Athletic Association sued Electronic Arts Inc., saying the video-game maker hasn’t agreed to indemnify the NCAA for legal claims by college athletes and hasn’t maintained insurance to do so.

The NCAA is a co-defendant in a consolidated lawsuit by student basketball and football players who allege their likenesses were used in video games without compensation. Electronic Arts in September agreed to settle the claims for $40 million. The NCAA wasn’t involved in the settlement.

The settlement would eliminate Electronic Arts’ contractual duty to indemnify the Indianapolis-based NCAA for any liability, as well as for its attorneys’ fees, arising from the NCAA-themed football and basketball video games, according to the complaint filed Nov. 4 in Fulton County, Georgia.

“EA has continually refused to accept its responsibility for its breaches of the video game licensing agreements and its obligation to indemnify the NCAA under these agreements,” according to the complaint.

John Reseburg, a spokesman for Redwood City, California-based Electronic Arts, declined to comment on the lawsuit.

The case is National Collegiate Athletic Association v. Collegiate Licensing Co., 2013CV238557, Fulton County, Georgia, Superior Court.

It’Sugar’s Request for Court Order Against I Love Sugar Fails

It’Sugar LLC failed in its bid for an order barring a South Carolina store from using “I Love Sugar” as its name.

Deerfield Beach, Florida-based It’Sugar, a retail chain selling candy, filed a trademark infringement suit against I Love Sugar Inc. in federal court in Florence, South Carolina, June 17, shortly after I Love Sugar’s June 1 opening. The chain claimed I Love Sugar infringed both its trademarks and the trade dress.

I Love Sugar operates one candy store in Myrtle Beach, and since 2008, It’Sugar has operated one of its stores nearby in the same town. The chain had claimed the public was confused by the name similarity.

It’Sugar operates 38 stand-alone stores, 14 departments within a store and two kiosks, and generated $115 million in sales over the past five years, according to court papers.

In its Nov. 19 ruling, the court found that the chain failed to show its trade dress was “more than merely a refinement of a previous design that was emerging nationally in the early 2000s.” The chain also failed to present a consumer study to show customer confusion, the court said, or to demonstrate adequately that its trade dress is non-functional.

Star Avenue Capital LLC of Los Angeles acquired a minority interest in It’Sugar in December 2012.

The case is It’Sugar LLC v. I love Sugar Inc., 2:13-cv-01644, U.S. District Court, District of South Carolina (Florence).

Anti-Gluten Trend Rises to Trademark Infringement Complaint

Although Against the Grain Gourmet Foods LLC, whose gluten-free products are carried by Whole Foods Market Inc., has filed a trademark infringement suit against Against All Grain LLC, the Brattleboro, Vermont-based company hasn’t opposed Against All Grain’s trademark application.

Against All Grain of Alamo, California, filed an application to register its name as a trademark Aug. 27, according to the database of the U.S. Patent and Trademark Office. So far no opposition papers have been filed.

The California company said it plans to use the mark for downloadable electronic books, cookbooks and an on-line journal. The company is owned by Danielle Walker, the San Francisco-based author of the “Against All Grain” cookbook featuring grain-free, dairy-free, and gluten-free recipes.

Less than 1 percent of Americans have the disorder that requires a gluten-free diet, yet almost one in three now eschews gluten, influenced by bestselling anti-gluten books and celebrity endorsements, according to trend watchers NPD Group.

The U.S. market for gluten-free foods will climb from $4.2 billion in 2012 to $6.6 billion by 2017, according to researcher Packaged Facts, as bread bakers, craft-beer makers and eateries from Hooters to Michelin-starred Hakkasan embrace the trend.

In its Oct. 11 complaint in federal court in Brattleboro, Vermont, Against the Grain said that to no avail it sent Against All the Grain a cease-and-desist letter in September. It claims that it will be harmed and consumers will be confused by the name similarities.

Against the Grain asked the court to order Against All Grain to abandon its trademark application, and to bar its use of “Against All Grain,” together with awards of money damages, attorney fees and litigation costs.

Against All Grain spokeswoman Eileen Psenka said in an e-mail her company declined to comment on the litigation.

The case is Against the Grain Gourmet Foods LLC v. Against All grain LLC, 1:13-cv-00276, U.S. District Court, District of Vermont (Battleboro).

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Court Says Film Company Committed Fraud on Court

In five consolidated cases involving the alleged unauthorized downloading of adult films, a federal magistrate judge has ruled that the copyright owner has committed fraud upon the court and ordered the return of all settlements the company received in the case.

The suits were filed in federal court in Minnesota by AF Holdings LLC. The court said the company used fraudulent copyright-assignment agreements to leverage settlement agreements.

AF Holdings attached a copyright-assignment agreement to each complaint purportedly signed by an Alan Cooper on behalf of AF Holdings. After AF voluntarily dismissed all five cases in the court learned from sealed filings that four of the vive settled for amounts ranging of up to $6,000.

Then Cooper filed a motion to intervene in the case, saying his name and signature were used without his permission. The court then held a hearing Sept. 30 to determine the authenticity of the copyright assignments. Counsel for AF testified that Cooper had given his authority over the telephone for the use of his name and signature.

“The court expressly disbelieves” this testimony, Magistrate Judge Franklin L. Noel wrote in his Nov. 6 order. He said that not only did Cooper not sign the agreements or give anyone else permission to sign them, he wasn’t even familiar with them and had no position with the copyright owner.

The court said that In addition to returning all the settlement money, AF Holdings had to pay all costs and attorney fees incurred by the defendants and the cases were to dismissed.

Additionally, the Judge ordered that his order be sent to the U.S. Attorney for the District of Minnesota, the Minnesota Attorney General’s Office and lawyer discipline agencies in Minnesota and Illinois for possible action.

The cases are AF Holdings LLC v. John Doe, 0:12-cv-01445, 0:12-cv-01446, 0:12-cv-01447, 0:12-cv-01448 and 0:12-cv-01449, U.S. District Court, District of Minnesota.

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Trade Secrets/Industrial Espionage

Wikipedia Use by Professor Attacked in Corporate Spy Case

The U.S. government’s China expert for an economic espionage criminal trial copied verbatim from Wikipedia large portions of a report summarizing his proposed testimony and should be disqualified, defense attorneys said.

The expert is James Feinerman, an Asian law scholar and associate dean for transnational programs at Georgetown University Law Center. He allegedly copied parts of 13 pages of his 19-page report from Wikipedia entries on China’s economy, high-technology development plan and Communist party, according to Stuart Gasner, a lawyer for a California businessman indicted last year in a trade secrets case. The report, which was filed in San Francisco federal court, doesn’t mention Wikipedia.

“Feinerman’s pervasive plagiarism from this unreliable and error-prone source, which has been rejected by federal courts all over the country, casts serious doubt on the reliability of his entire testimony,” Gasner said in a court filing.

Feinerman declined to comment on the dispute. Prosecutors said the professor “used” Wikipedia, while asserting that doesn’t make his opinions unreliable.

The U.S. hired Feinerman, who said in court papers he charges $350 an hour, to testify at the January trial of Walter Liew, who was indicted for conspiring to steal trade secrets from DuPont Co. for China’s Pangang Group Co. A hearing on the defense request to disqualify the professor had been scheduled for Nov. 14 and was canceled by U.S. District Judge Jeffrey White, who may rule any time in coming weeks based on written submissions.

Excluding the witness may be another setback for federal prosecutors, who have failed to meet legal requirements for summoning Pangang to face conspiracy charges in the case, a prerequisite for bringing the company to trial.

Feinerman’s role in the case is to provide an overview of the Chinese government’s attempts to persuade its citizens overseas to steal trade secrets, according to his report.

Prosecutors said that while the professor’s report uses language that “tracks various Wikipedia entries,” he relied on a host of sources, both in English and Chinese.

The case is U.S. v. Liew, 11-cr-00573, U.S. District Court, Northern District of California (San Francisco).

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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