Mansfield photographer Sabine Nordberg accuses Ivy Studio, a Canton-based landscape design company, of misusing one of Nordberg’s copyrighted landscape photographs on its website. Nordberg says that she was hired to photograph a client’s backyard after Ivy Studio had done work on the yard. Nordberg says she offered to share the cost of the shoot wit the defendant and license some of the photos, but Ivy Studios refused. She says that Ivy Studios then obtained copies of her photographs from the client and put them on its website, and that Ivy Studios has ignored her demands that they remove the photographs.
Judge Stearns denied ISDI’s motion for sanctions against De Rouw and his counsel. ISDI asserted that De Rouw had continuously disregarded the local rules and had harassed ISDI, and noted that the Liebowitz Law Firm that represents De Rouw has been sanctioned in the Southern District of New York. Specifically, ISDI asserts that the complaint for copyright infringement and removal of copyright management information was brought without the knowledge, consent or approval of the plaintiff, a practice that Liebowitz has been accused of in the past – one of the sanctions against Liebowitz ordered by the S.D.N.Y. court was to file an affidavit in each case in which he or his firm has appeared stating that the plaintiff had prior knowledge of and consented to the filing of the complaint. De Rouw ultimately withdrew the complaint when it was set for trial, asserting that he realized that IDSI could not satisfy a judgment. While ISDI is correct concerning the faults that other courts have found with respect to Liebowitz’s litigation practices in general, ISDI did not appear to point to anything specific to this case that would warrant sanctions.
WellPet sued Honest Paws for federal and state trademark infringement, false designation of origin and unfair competition relating to Honest Paws’ alleged improper use of WellPet’s WELLNESS trademark. WellPet, a Tewksbury company, asserts that Honest Paws, a Texas company, is subject to personal jurisdiction in Massachusetts because the company is “present and doing business” in the state either directly or through their agents and selling product into the state. WellPet has registrations for WELLNESS for pet food, treats, and dietary supplements for pets. Honest Paws is said to have begun selling dog treats and supplements using the WELLNESS mark in January 2020, and has ignored WellPet’s demands to stop selling products under the mark.
Julie Renee Scarfone, who does business as Skar Designs, accuses Keely Smith, who does business as Keely Smith Jewelry Designs, of copyright infringement. Scarfone copyrighted a number of different jewelry designs over the last 15 years, and says that Smith has copied a significant number, such that virtually all of Smith’s pieces are knock-offs of Scarfone’s designs. Scarfone first contacted Smith in 2012 about the copying but did not at that time pursue litigation. She asserts that this contact involved works not asserted in this litigation. Scarfone notes that both she and Smith are located on Nantucket, a very small island, and sell within “mere feet” of each other, demonstrating Smith’s access to Scarfone’s designs. In addition to the copyright counts, Scarfone asserts violation of c. 93A.
Purdue accuses Collegium of patent infringement relating to Collegium’s New Drug Application (“NDA”) for the manufacture and sale of Xtampza ER oxycodone extended release capsules. Purdue asserts that Collegium’s sale of this drug would infringe their U.S. 10,407,434 patent. The ‘434 patent is listed in the FDA’s Orange Book as covering OxyContin. Collegium submitted an NDA for its own oxycodone-based product. Purdue asserts that Collegium’s filing of the NDA constitutes infringement of the ‘434 patent under 35 U.S.C. § 271(e), and that the actual manufacture and sale of the product infringes under § 271(a), (b), (c), and (g). Purdue says this litigation is related to previously-filed actions involving earlier Purdue patents on extended release oxycodone, and notes that Collegium has agreed to consolidate this case with the previous lead case for pretrial purposes.
Ecobee sued Amazon resellers eMonkey, Francisco Borboa, Quick Sales MP. Resale Kings, My Secret Style, Rhemacapital, and Wolfreeze, accusing each of trademark infringement, unfair competition, and false advertising arising from the defendants obtaining and reselling ecobee products despite not being authorized to do so. As with other such ecobee complaints, they here assert that the defendants obtain liquidated or used ecobee products and falsely advertise them as new and genuine, in violation of the Lanham Act.
Panoramic Images sued AGA-Boston and the Association of Government Accountants in the Worcester division, accusing them of using a Panoramic Images’ photograph of the Boston skyline on their respective websites, www.agacgfm.org and the Boston Chapter sub-domain. Panoramic Images accuses the Boston corporation of direct copyright infringement, and the national entity of vicarious copyright infringement, asserting that the national entity had the right to supervise the Boston corporation’s website activity and had a direct financial interest in the infringement. The case is before Judge Hennessy.
The FBA and the WCBA is holding a lunch with Magistrate Judge David Hennessy on March 12, beginning at 1:00, to discuss the state of civil cases, mediation, and developments in criminal practice. You can register here.
On March 16th at 6:00, the FBA will host a panel of clerks from the District of Massachusetts and the Southern and Eastern Districts of New York titled “What Attorneys Should Know Practicing in Federal Court.” The panel, made up of Robert Farrell of Massachusetts, Ruby Krajick of the Southern District of new York, and Douglas Palmer of the Eastern District of New York, will speak and take questions. You can find the link to register here.
The Court will present an update on Court Operations during Covid on March 31st at noon. The Court is accepting input on topics that attorneys would like to see covered here, and registration can be found here.
I spoke with Jeffrey Davis of Radio Entrepreneurs recently about when an “exclusive” licensee of a patent can (and cannot) bring suit to stop others from practicing the licensed patent and protect their exclusivity. You can see the interview here.
Florida couple Jason and Mary Young accuse Agawam’s Hydropolis of infringing U.S. Patent No. 9,468,865, titled “Tincture Preparation Method and Use.” The ‘865 patent includes claims directed to methods of making a tincture using a particular apparatus. The general idea is to incorporate cannabis into butter or oils to form tinctures. The Youngs, who are the named inventors on the ‘865 patent, assert that Hydropolis’ “Butter Brewer” product matches the apparatus of the claims, and that it comes with instructions for using the brewer to create tinctures that ultimately induces infringement of the method claims. The Youngs say they notified Hydropolis of the infringement in 2017, but Hydropolis refused to cease and desist in the offering for sale and selling of the product. The Youngs seek injunctive relief as well as trebling of damages for willful infringement.