O’Toole Denies Motion to Dismiss DMCA Claims

Everyone’s favorite Framingham, MA based audio equipment manufacturer, Bose Corp., sued Eduardo Zavala for altering the firmware on Bose® Lifestyle® Media Centers to unlock the DVD region code and then reselling the equipment on eBay.  The complaint included claims for violations of the Lanham Act, the Digital Millennium Copyright Act, and M.G.L. 93A (unfair competition), as well as common law claims of trademark infringement, unjust enrichment and conversion.  Zavala moved to dismiss under Fed. Rule Civ. P. 12(b)(6).  The motion was denied for a number of reasons.

 

First, Judge O’Toole remarked that Zavala failed to cite any authority beyond Atlantic v. Twombly and Ashcroft v. Iqbal.  Note to practitioners, citing cases is good.  Not citing cases is bad. 

 

Second, the challenge to Bose’s standing to sue under the DMCA was struck down because under the low bar for DMCA standing set by CoxCom, Inc. v. Chaffee, 536 F.3d 101 (1st Cir. 2008) Bose could claim potential lost sales and be considered a “person injured.”

 

Third, the defense to the remaining claims (that Zavala was reselling “genuine” Bose goods) was similarly backhanded.  As the Court noted, “Goods are not genuine if they are materially different from those authorized for sale by the trademark owner.”

Motion to dismiss denied.  The beat goes on.

Bose Corp v. Zavala, 09-11360-GAO (D. Mass. Jan. 14, 2010)

http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=otoole/pdf/bose%20v%20zavala%20motion%20to%20dismiss%20order.pdf

Comments

[Steve]

This looks like a fun case!

[Ilan Barzilay]

Sure does. I wonder if counsel will get tokeep the samples.

To: [email protected]
Subject: [District of Massachusetts IP Blog] Steve submitted a comment to O’Toole Denies Motion to Dismiss DMCA Claims
Date: Thu, 14 Jan 2010 11:32:42 -0800