District of Massachusetts IP Blog

Vlingo v. Nuance War Keeps Raging

The latest battle in the “all-out war” between speech recognition competitors Vlingo and Nuance has just begun.  Following a jury verdict finding that Vlingo did not infringe Nuance’s patents, Vlingo has filed suit against Nuance for unfair competition, tortious interference and commercial bribery stemming from Nuance’s alleged campaign to drive down Vlingo’s acquisition price through improper patent litigation. 

Testing Equipment Spat Over Marketplace Comparisons

Molecular Devices, LLC (Sunnyvale, CA) has sued BioTek Instruments, Inc. (Winooski, VT) for unfair competition, product disparagement, and tortious interference related to statements made by BioTek about certain features of Molecular Devices’ VersaMax and SpectraMax microplate reader products.  Cease and desist letters were ineffective, so this suit was filed. 

Molecular Devices, LLC v. BioTek Instruments, Inc., 11-11133-JCB (D. Mass. June 24, 2011)

Patent Acquisition Turns Co-Defendants Against Each Other

Wrapsol, LLC (Canton, MA) has sued ZAGG, Inc. (Salt Lake City, UT) for false advertising, commercial disparagement, and tortious interference.  Both companies sell protective film for electronic devices.  Wrapsol sued over certain statements made by ZAGG in the marketplace and to current and potential customers.  This case stems from a patent infringement suit where Wrapsol and ZAGG were co-defendants.  (Mason v. Zagg, Inc., 10-06511-AHM-FFM (C.D. Cal.))  ZAGG settled with the plaintiff, ended up owning the patent, and became the plaintiff against Wrapsol.  ZAGG then paraded around the patent suit in an attempt to get Wrapsol’s customers to switch to ZAGG.

Then the day after filing this case Zagg sued Wrapsol for patent infringement in Utah.  (Zagg v. NLU Prods., 11-00517-PMW (D. Utah))

Wrapsol, LLC v. Zagg, Inc., 11-11006-RGS (D. Mass. June 6, 2011)

Post-Trial Motions Leave No 93A Liability for Competing Carpet Installers

Carpet installers Empire Today and National Floors Direct (NFD) were engaged in a dispute stemming from fierce direct competition and the departure of roughly ten managers and thirty sales representatives from Empire to NFD “under acrimonious conditions.”  

At trial (a rare occurrence before Judge Tauro) Empire asserted trademark infringement and various tortious interference claims against NFD.  NFD asserted counterclaims for defamation, false advertising and abuse of process.  The jury found against the plaintiff on all its affirmative claims and in favor of defendant on its abuse of process counterclaim, awarding $500,000 in damages.  Each party cross moved for JMOL as well as for judgment on dueling 93A claims.  Judge Tauro’s eventual decision was to leave the parties in the same condition the jury left them. 

Defendant Deflects Liability In Laser Treatment Patent Case

In one of a series of patent suits involving energy treatment (ablation) of internal organs (such as prostate tissue, veins, etc.), Judge Ponsor disposed of all claims in a case before him on summary judgment.  While asserted Patent No. 5,428,699 was declared valid, the defendant escaped liability on patent infringement and other secondary claims. 

Opening his 40 page decision, Judge Ponsor eloquently (and with a certain amount of resignation) asked: 

This intricate and lavishly briefed piece of patent litigation turns on the proper construction of a single two-letter word: “on.”  One may say that a dictionary rests “on” a table but, if an apple is then placed on the dictionary, is it, too, “on” the table? 

For purposes of this case, the answer was no. 

Leading Mop Maker Steamed Over Competitor’s Ads

In a dispute over steam mops (a $400 million dollar industry--who knew?) Euro-Pro Operating LLC (Newton, MA) (who has ~80% of the lucrative steam mop market) has sued Stanley Black & Decker, Inc. (New Britain, CT) for false advertising and product disparagement regarding claims made by Stanley touting its new steam mops.  Stanley’s advertising states that its “SmartSelect” technology is safe on hardwood floors and that “other steam cleaners” can produce too much steam which can damage floors.  The complaint alleges that such statements misleadingly imply that other technology (i.e. Euro-Pro’s) is not safe on hardwood floors. 

Here are the allegedly disparaging statements (emphasis in the complaint, no idea about the original advertisements): 

Competing Instructions Too Close for Comfort

G. Pohl-Boskamp GmbH & Co. KG (Hohenlockstedt, Germany) has sued Akrimax Pharm. (Cranford, NJ) in a dispute over dueling nitroglycerin pumpspray bottles. 

GPB alleges that Akrimax committed (1) false advertising by wrongly characterizing GPB’s products in Akrimax’s materials, (2) trademark infringement by using GPB’s Nitrolingual® mark to describe products GPB doesn’t actually sell, and (3) copyright infringement by copying GPB’s pumpspray instruction diagrams.  A sample:

 
GPB applied for copyright registrations in its labels several days prior to filing the complaint.  As previously noted on this blog and elsewhere, the law is unsettled as to whether applications satisfy the registration requirement of 17 U.S.C. § 411(a).  

G. Pohl-Boskamp GmbH & Co. KG v. Akrimax Pharm., LLC, 11-10207-JLT (D. Mass. Feb. 7, 2011)

Bandage Makers Fight Over Latex

Andover Healthcare, Inc. (Salisbury, MA) has sued Tempo Medical Prods., LLC (Chapin, SC) for false advertising and trademark infringement related to bandages advertised as “latex-free.”  Andover sells latex free bandages and uses the mark GIVE BLOOD (registered on the supplemental register) in a repeating design on bandages.  According to the complaint, Tempo sells competing bandages labeled as “latex-free” but which Andover alleges actually contain latex.  Tempo bandages are also sold with a repeating pattern of GIVE BLOOD printed on them. 

Andover Healthcare, Inc. v. Tempo Medical Prods., LLC, 11-10019-MLW (D. Mass. Jan. 5, 2011)

Cranberry Industry Bogged Down

Although not a typical IP case, this one was too good not to mention.

 

Ocean Spray Cranberries, Inc. (Lakeville-Middleboro, MA) has sued Decas Cranberry Products, Inc. (Carver, MA), related corporate defendants, and a number of “John Doe Growers” (“who are not members of the Ocean Spray cooperative”) and “John Doe Handlers” for deceptive trade practices under the Lanham Act, the Agricultural Fair Practices Act, and MA state law.  The complaint stems from an alleged campaign by the defendants to harm Ocean Spray’s reputation, relationship with its customers, dealings with cranberry growers, etc.  The complaint particularly charges that the defendants tried to get growers to join a lawsuit against Ocean Spray by “falsely claiming that Ocean Spray is violating the law, including the federal antitrust laws.”

 

A variety of bad acts by Decas are alleged, including malicious blog posts, letters to the industry, a letter to the U.S. Attorney General, secretly operating the anti-Ocean Spray website <www.scamberry.org> (!) along with associated Twitter and YouTube accounts, etc.

 

The complaint notes that Decas is the self proclaimed “second-largest cranberry company in the world” while conspicuously omitting the fact that Ocean Spray is the largest.  Perhaps to avoid admitting anything that might come back to bite in an antitrust claim?

 

Ocean Spray Cranberries, Inc. v. Decas Cranberry Products, Inc., 10-11288-RWZ (Aug. 2, 2010)

Ongoing Thermometer Dispute Heats Up Over False Advertising Claims

Exergen Corp. (Watertown, MA) sued Kid-Medz, Inc. (New Paltz, NY) and its alleged controlling corporation American Scientific Resources, Inc. (Weston, FL) for false advertising relating to the defendants’ sales of non-invasive pediatric thermometers.

 

Much of the dispute centers around implicit claims made by the defendants that their forehead thermometers measure the temperature of the skin over the temporal artery, which the complaint says is false and is designed to take sales away from plaintiff’s TemporalScanner thermometers which actually do.

 

Other portions of the dispute involve statements made in a Feb. 2010 status conference in a related case between the parties (08-11416-DPW (D. Mass.)) and their direct contradiction with public statements made by defendants.

 

Filing new litigation asserting that untruths were told in pending litigation is a good sign that the parties aren’t particularly close to settlement.

 

Exergen Corp. v. American Scientific Resources, Inc., 10-10476-DPW (D. Mass. Mar. 19, 2010)