Bloomberg News

Kimberly-Clark, Lawsuits.com, Disney: Intellectual Property

June 06, 2011

(This is a daily report on global news about patents, trademarks, copyright and other intellectual property topics. Adds Walt Disney Co. item in copyright section.)

June 6 (Bloomberg) -- Kimberly-Clark Corp., maker of Huggies Diapers and Scott toilet paper, received a mixed ruling from a federal court that handles appeals of patent disputes.

Dallas-based Kimberly-Clark sued First Quality Baby Products LLC in federal court in Green Bay, Wisconsin, in September 2009, alleging the Lewiston, Pennsylvania-based company infringed four patents related to the manufacturing of disposable training pants for toddlers.

The trial court had found that Kimberly-Clark had successfully argued it would have a good chance of proving First Quality infringed the four patents, and granted a court order requested by the company.

First Quality then filed an appeal with the U.S. Court of Appeals for the Federal Circuit. In a June 1 ruling, the appeals court said that the trial court was in error with respect to three of the four patents.

The appeals court found that on patents 6,514,187, 6,888,143, and 7,156,939, First Quality raised what it called a “substantial question” about the validity of each patent. Because of that, the appeals court said, the trial court erroneously granted the court order.

On Kimberly-Clark’s patent 6,776,316, the appeals court said the trial court properly ruled that the Texas company would likely prove it had been infringed.

Kimberly-Clark’s case was argued before the appeals court by Constantine L. Trela Jr. of Chicago’s Sidley Austin LLP. First Quality Baby Products’ argument was presented by Kenneth P. George, of New York’s Amster Rothstein & Ebenstein LLP.

The case in the trial court is Kimberly Clark Worldwide Inc. v. First Quality Baby Products LLC, 1:09-cv000916-WCG, U.S. District Court, Eastern District of Wisconsin (Green Bay). The appeal is Kimberly Clark Worldwide Inc. v. First Quality Baby Products LLC, 10-o1382, U.S. Court of Appeals for the Federal Circuit (Washington).

For more patent news, click here.

Trademark

Scripps Networks Sued Over Food Channel’s ‘Tough Cookie’

Scripps Networks Interactive was sued for trademark infringement by a New York bakery.

One Tough Cookie Inc. objects to the “Tough Cookies” title of an upcoming reality show to be aired on Scripps’s Food Network. According to the complaint filed May 31 in federal court in Manhattan, the New York bakery has been in business since 2005 and registered its “One Tough Cookie” trademark with the U.S. Patent and Trademark office in May 2006.

The company has operated the OneToughCookieNYC.com website since 2006, and claims its name “has become widely known among consumers” as identifying high-quality baked goods and services. The company is owned by Gail Dosik, a former fashion designer who became a pastry chef, according to the court papers, and has been featured on a number of national television programs.

The bakery says it sent Scripps a cease-and-desist letter in May to no avail. It claims that if the television series is permitted to use “tough cookies,” the public will be confused, and the bakery will lose “hard-earned goodwill.”

Every time “Tough Cookies” is aired, the bakery claims its website and Web server will be compromised by television fans attempting to seek the program’s site.

It asked the court to bar the use of “Tough Cookies” in connection with the proposed program, and the destruction of all infringing items and promotional materials. Additionally, it seeks money damages and the channel’s profits attributable to the alleged infringement, plus awards of attorney fees and litigation costs.

Scripps spokeswoman Lee Hall said in an e-mail that “the suit has no merit. We will defend our position vigorously.”

The bakery is represented by Leonard F. Lesser of Simon- Lesser PC of New York.

The case is One Tough Cookie Inc. v. Scripps Networks Interactive Inc., 1:11-cv-02675-RJS, U.S. District Court, Southern District of New York (Manhattan).

Lawsuits.com Domain Name to Be Sold by ATM Holdings Inc.

The domain name lawsuits.com is up for sale, according to a statement from the domain name consultant ATM Holdings Inc., which is handling the sale.

The name has been dormant for many years and is expected to sell “at or near its listing price of $275,000,” Andrew Miller, president of ATM holdings said in the statement.

He claims “there is no better brand or domain to use to buy clicks in Google and other search engines” than lawsuits.com.

Some single-focus Internet domain names have fetched high prices. In October 2010, the “sex.com” domain name sold at auction for $13 million.

Others haven’t done as well. An October auction on EBay.com website brought $14,999 for the owners of a domain name for a professional soccer team, the Carolina Railhawks.

Comcast Unit’s Bravo Channel Says Arizona Site Infringes Mark

Bravo, the premium television channel owned by Comcast Corp.’s NBC Universal unit, sent a cease-and-desist letter to a website that features live sex performances, the TMZ.com website reported.

The site’s domain name -- realhousewivesofscottsdale.com -- infringes Bravo’s “real housewives” trademarks, the letter claimed and TMZ reported.

Bravo demanded the whole operation be taken down, according to TMZ.

The owner of the realhousewivesofscottsdale.com website told TMZ he’s not willing to take the site down and is willing to go to court rather than meet Bravo’s demands.

For more trademark news, click here.

Copyright

Della Femina Sued Over Use of Black Keys’ ‘Tighten Up’

Della Femina, Rothschild, Jeary & Partners, a New York- based advertising agency, was sued for copyright infringement by two performers and songwriters know as the Black Keys.

Dan Auerbach and Patrick Carney, both of Nashville, Tennessee, claim the ad agency made unauthorized use of their song “Tighten Up” in a commercial for Valley National Bancorp of Wayne, New Jersey.

According to the complaint filed May 31 in federal court in Nashville, the composition “Tighten Up” won a Grammy Award, and was the lead single on the Black Keys’ 2010 album “Brothers.” The song has been No. 1 on Billboard’s charts for top rock songs and top alternative songs, according to the complaint, and has sold more than 450,000 physical and digital copies.

The two musicians claim they’ve suffered “substantial injury, loss and damage” because of the unauthorized use of their music.

They say they never authorized the ad agency or anyone working on the agency’s behalf to use the music. Although the bank is a co-defendant with the agency, the musicians specified in court papers that Della Femina acted as its agent with respect to the creation and distribution of the advertisement.

They asked the court for an award of the bank and Della Femina’s profits attributable to the alleged infringement, and for an order barring further use of the composition. Additionally, they requested awards of attorney fees and litigation costs.

Della Femina didn’t respond immediately to an e-mailed request for comment.

The musicians are represented by John J. Griffin Jr. of Kay, Griffin, Enkema & Colbert PLLC of Nashville.

The case is Dan Auerbach v. Della Femina/Rothschild Jeary Partners, 3:11-cv-00511, U.S. District Court, Middle District of Tennessee (Nashville).

Judge Denies Disney Injunction Against Dish Over TV Movies

A federal judge refused to grant Walt Disney Co. an injunction that would prevent satellite television provider Dish Network Corp. from giving its subscribers free access to Disney movies.

U.S. District Judge George Daniels in New York denied the motion by Disney Enterprises Inc. for a preliminary injunction in a one-page order signed June 1.

Disney sued Dish, the second-largest satellite TV company, in May, accusing it of distributing Disney movies over the Starz movie channels without charging subscribers an additional premium, as is done with a service such as HBO. Starz is a unit of Liberty Media Corp. Disney accused Dish of copyright infringement.

“Dish Network pays hundreds of millions of dollars for the right to distribute Starz content to our customers, which includes the rights to a number of Disney movies,” Englewood, Colorado-based Dish said May 3 in a statement.

Dish said the contract is between Starz and Disney, and that “we will vigorously defend our rights against any attempt to drag our customers into the middle of their dispute.”

Marc Lumpkin, a spokesman for Dish, said June 3 the company has no comment on the judge’s ruling.

Zenia Mucha, a spokeswoman for Burbank, California-based Disney, didn’t return a call seeking comment. .

DirecTV, based in El Segundo, California, is the largest satellite TV provider in the U.S.

The case is Disney Enterprises Inc. v. Dish Network LLC, 11-2973, U.S. District Court, Southern District of New York (Manhattan).

For more copyright news, click here.

--With assistance from Don Jeffrey in New York. Editors: Glenn Holdcraft, Peter Blumberg

To contact the reporter on this story: Victoria Slind-Flor in Oakland, California, at vslindflor@bloomberg.net.

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net.


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