Ubervita v. John Does: Another Case of a Bullying Business, or a Legitimate Effort to Protect One’s Reputation?
By Max Burke
Nutritional supplement company Ubervita filed a lawsuit this month against John Does, claiming the “unknown defendants have conspired to disrupt Ubervita’s business through a campaign of dirty tricks.” This included, among other things, posting fraudulent negative reviews of the company on Amazon.com. Recently, Chief Judge Marsha Pechman of the Western District of Washington granted Ubervita’s request to subpoena Amazon and Craigslist for the purpose of discovering the defendants’ identities.
A few months ago, we wrote about a similar case from Virginia in which Hadeed Carpet Cleaning subpoenaed Yelp (a business review website) in order to identify seven individuals who had left negative reviews of the business on Yelp. The Virginia Court of Appeals affirmed the trial court’s order that held Yelp in civil contempt for not complying with the subpoena. The Virginia Supreme Court recently accepted review of this case. (more…)
When we think about the word “mobster,” we often recall names such as Al Capone, and think of the time period of the early 20th century. We generally don’t associate the word “mobster” with hackers or the computer age. Recently, however, the Racketeering Influenced Corrupt Organizations Act (or RICO) has made such an association. Originally envisioned as a tool to target gang leaders who avoided direct liability by ordering subordinates to commit crimes, RICO has recently been used to target cybercriminals engaged in racketeering offenses. Rather than being used to target leaders of mafia-type activities, the law is now being used to prosecute and impose stiffer penalties on online criminals who engage in organized crime through various virtual networks.
RICO, passed in 1970, allows for the imposition of criminal penalties of up to 20 years imprisonment (or more if the underlying crime carries a higher maximum penalty), or civil penalties amounting to triple the actual damages incurred. Private individuals may also bring claims against anyone who has participated, directly or indirectly, in racketeering activities. To establish a claim under RICO, according to one Supreme Court case, a defendant must have “conduct[ed] or participat[ed] in the conduct of an enterprise ‘through a pattern of racketeering activity.’” Put simply, a defendant must have acted as part of a group that commits a series of at least two acts that qualify as racketeering activities. A useful breakdown of these elements can be found here. (more…)
Once again, the United States Patent and Trademark Office has cancelled the National Football League’s trademark registrations for the nickname ‘Redskins,’ in association with the Washington Redskins football team, on the grounds that the name disparages Native Americans, and this time the decision could actually stick.
On June 18, 2014, the USPTO’s Trademark Trial and Appeal Board cancelled six trademark registrations for variations of the name ‘Redskins’ registered under the Lanham Act by respondent Pro-Football, Inc. (owner and operator of the Redskins). The Board held that, pursuant to Section 14(3) of the Lanham Act, the trademarks had been registered in violation of Section 2(a), which prohibits trademarks consisting of “matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” After an exhaustive review of the record, the Board concluded that the petitioners—five Native Americans—had sufficiently demonstrated that a “substantial composite of Native Americans” found the name to be disparaging in connection with Pro-Football’s services. The Board noted that a ‘substantial composite’ of a group did not necessarily mean a majority of that group, and it rejected any argument that a ‘substantial composite’ of a group required homogenous opinions within that group. Interestingly, while the Board’s decision cancelled registrations pertaining to the name ‘Redskins’ and several variations of the name that occur in combination with logos, the plain Washington Redskins team logo itself was not cancelled because it was not at issue in the case. (more…)
Clarified or Confused? SCOTUS Decision in Alice v. CLS Bank and Continued Mystification of Abstract Ideas
By Chris Ferrell
On June 19th, the Supreme Court ruled on its sixth and final patent law case of this term, Alice Corp. v. CLS Bank. The case concerned the patentability of claims covering a computerized trading platform for exchanging financial obligations. The business method patents at issue in Alice were directed to a computer-implemented scheme for mitigating settlement risk in certain financial transactions. The claims included a method, a computer-readable medium, and a system. The key issue for the Court was to identify an appropriate test for determining whether a computer-related invention is an application of an abstract idea. In a unanimous decision authored by Justice Thomas, the Court held that Alice’s claims were not patent eligible under 35 U.S.C. § 101 because they were directed at an abstract idea of intermediated settlement. While the decision was not a surprise to some in the industry, others waited on baited breath to see just how far the Court would go in analyzing these software claims, and to what extent patent analysis would be moving forward. In previous cases, including Mayo Collaborative Services v. Prometheus Labs, Bowman v. Monsanto and Association for Molecular Pathology v. Myriad Genetics, the Court took the opportunity to reign in overbroad positions in patent law and define the outer-boundaries of patentability; Alice was no different. However, in trying to contain patent law, the Court may have muddied the waters even more for those trying to decipher what may be patentable, especially in the realm of computer software. (more…)
Good news, environmentalists and car enthusiasts alike! Tesla Motors is opening up its patents to the public! Okay, so it may not be as simple as a how-to guide on building your own zero emissions electric vehicle, but, this is a huge step for the open source movement and the advancement of EV technology.
CEO, Elon Musk, announced via blog post on the Tesla website that the company hopes to “accelerate the advent of sustainable transport” by pledging that they “will not initiate patent lawsuits against anyone who, in good faith, wants to use [their] technology.”
Musk followed up his written announcement with a conference call to shareholders and the press. He explained that the convoluted patent system inhibits innovation in an especially tough market. Electric cars make up less than 1% of total vehicle sales in the United States. “Our true competition is not the small trickle of non-Tesla electric cars being produced, but rather the enormous flood of gasoline cars pouring out of the world’s factories every day.” By sharing its technology, Tesla hopes to incentivize other motor companies to help develop the infrastructure needed to make electric vehicles appeal to consumers. For example, potential drivers need to be persuaded that charging stations are as readily available to accommodate their electric cars as gas stations are for other vehicles. (more…)
The Washington Journal of Law, Technology & Arts (LTA Journal) has published its Spring 2014 Issue. The LTA Journal publishes concise legal analysis aimed at practicing attorneys on a quarterly basis.
Scott Kennedy, an associate attorney at Reinisch Wilson Weier, P.C. and a former member of the LTA Journal, wrote the first article, “Who Knew? Refining the ‘Knowability’ Standard for the Future of Potentially Hazardous Technologies.” The article surveys U.S. products liability law pertaining to the duty to warn and analyzes the Ninth Circuit’s decision in Rosa v. Taser International, Inc. to illustrate the problems involved in assessing knowability.
In the issue’s second article, “Are Courts Phoning It In? Resolving Problematic Reasoning in the Debate over Warrantless Searches of Cell Phones Incident to Arrest,” Northwest Justice Project legal fellow Derek Scheurer surveys the courts’ application of the search-incident-to-arrest doctrine to cellphones. He analyzes four problematic arguments that courts often rely on to limit warrantless searches of cell phones incident to arrest, and recommends two possible solutions for restricting police authority to search.
Incoming Editor-in-Chief Peter Montine wrote the third article, “Forced Turnovers: Using Eminent Domain to Build Professional Sports Venues.” The article discusses the application of eminent domain law in sports venue cases and suggests strategies for challenging a city’s use of eminent domain to develop a professional sports venue.
Articles Editor Matthew Fredrickson contributed the fourth article, “Sentencing Court Discretion and the Confused Ban on Internet Bans.” The article discusses the circuit split on judicial sentencing discretion and the imposition of Internet bans as a condition of supervised release.
By Amanda Brings
Earlier this month, in Limelight Networks, Inc. v. Akamai Technologies, Inc., a unanimous Supreme Court clarified the standard for induced patent infringement under 35 U.S.C. § 271(b). The Court held that a defendant may not be liable for inducing infringement of a method patent under 35 U.S.C. § 271(b) unless direct infringement has been committed under § 271(a). Under this standard, liability for induced infringement of a multi-step method patent can only attach when a single actor performs all the method steps. In so holding, the Court expressly rejected the Federal Circuit’s relaxed induced infringement standard, which did not require that a single actor perform all the method steps. The Court reversed the Federal Circuit’s decision that a defendant could be liable for induced infringement when it performed only some of the method steps and induced a third party to perform the remaining steps.
In Limelight, Akamai Technologies sued Limelight Networks for infringing its patent, which claimed a method of delivering electronic data using a content delivery network (CDN). Akamai operates a CDN and maintains multiple servers. Website owners contract with Akamai to deliver their websites’ content to Internet users. Akamai’s patent provides for a process known as “tagging,” wherein certain components of its customers’ websites (such as video or music files) are designated for storage on Akamai’s servers. By “tagging” files, Akamai increases the speed with which Internet users access its customers’ websites. Limelight also operates a CDN and carries out several of the steps in Akamai’s patent. Limelight, however, does not tag the components to be stored on its servers and requires its customers to perform their own “tagging.” (more…)
By Jeffrey Echert
It’s smooth legal sailing again for the Beastie Boys. Just last week, a federal court in New York handed down a decision in an infringement suit against Monster Energy. Monster had used five Beastie Boys songs in a promotional video for a snowboarding competition, as well as “RIP MCA” in a font similar to the Monster logo (Beastie Boys’ member MCA, real name Adam Yauch, died in 2012). The Beastie Boys brought suit, claiming infringement of copyright and that Monster falsely implied an endorsement by the Beastie Boys. After hearing extensive testimony from Adam Horovitz and Michael Diamond, the jury awarded the Boys 1.7 million dollars in damages.
We’ve previously reported on legal issues surrounding the potential appropriation of the Beastie Boys’ catalogue before—last year, toy company GoldieBlox sued the Boys, hoping to receive a declaratory judgment in its favor for the use of the song “Girls” in an advertisement. The case settled in March of this year. As part of the settlement agreement, GoldieBlox made a public apology and donated a percentage of its revenues to charities that support STEM education for girls. (more…)
By Max Burke
The D.C. Circuit dealt a blow to copyright trolls last Tuesday when it vacated the district court’s order for discovery in AF Holdings v. Does. The case, which was filed about two years ago, lists over 1,000 “Doe” defendants who are suspected of downloading AF Holdings’ pornographic films without permission. In an attempt to identify the unknown defendants, AF Holdings motioned the district court to compel Internet service providers (ISPs) to turn over the defendants’ personal information. The court granted the motion.
The ISPs, which include Comcast and Verizon, appealed the court’s order, arguing that the court lacked personal jurisdiction over the defendants, the venue was improper, and the defendants could not properly be joined together. The ISPs were mainly concerned that the order would allow AF Holdings to evade normal judicial procedures and unfairly leverage the defendants. Specifically, they believed the information sought would be used “to compile a contact list for Plaintiff to demand ‘settlement’ payments (typically ranging from $2,000-$4,000) from each subscriber . . . before any defendant is named or served in the lawsuits.” (more…)
On May 19th, the Supreme Court resolved a circuit split in Petrella v. Metro-Goldwyn-Mayer. The Court ruled that the doctrine of laches does not bar copyright infringement suits if the suits are brought within the Copyright Act’s three-year rolling statute of limitations, absent extraordinary circumstances.
In reversing the Ninth Circuit, the Court held that laches serves a gap-filling function and should be applied only in the absence of a limitation period. Because the Copyright Act provides a three-year limitation period, laches does not apply to copyright suits, except in extraordinary circumstances. This was not such a case.
In this case, boxing champion Jake LaMotta and his friend Frank Petrella copyrighted a screenplay in 1963 about LaMotta’s boxing career. An MGM subsidiary later acquired the rights. In 1980, MGM released and copyrighted Raging Bull, a film based off of the screenplay. Petrella died in 1981, and his daughter eventually obtained sole ownership of his copyright. She renewed it in 1991 and, in 1998, informed MGM that its exploitation of Raging Bull infringed on her copyright. In 2009, she sued MGM for infringing acts since 2006 pursuant to the separate-accrual rule, which creates a new limitation period for each infringing act. (more…)