Bloomberg News

Dow, Gevo, Google, Louboutin, Dotcom: Intellectual Property

January 26, 2012

(This is a daily report on global news about patents, trademarks, copyright and other intellectual property topics. Updates with Kohler item in the trademark section.)

Jan. 25 (Bloomberg) -- Dow Chemical Co. won an appeals court ruling that upholds a $61.7 million patent-infringement verdict against Nova Chemicals Corp. from 2010 related to plastic used in grocery bags.

The U.S. Court of Appeals for the Federal Circuit in Washington rejected Nova’s arguments that its Surpass plastic didn’t infringe two Dow patents, and that the patents were invalid. The opinion was posted on the court’s website yesterday.

Nova, owned by Abu Dhabi-based International Petroleum Investment Co., was accused of using Dow inventions for polymers that are thinner and stronger than conventional plastic. The Federal Circuit said the patents clearly described what Dow said it invented, and that the verdict of infringement “is supported by substantial evidence.”

Nova also had argued that Midland, Michigan-based Dow transferred the patents to a holding company for tax purposes. The majority of the three-judge panel said the trial judge was correct to rule that the patents weren’t part of the creation of that holding company. Circuit Judge Jimmie Reyna said he would have sided with Nova on that issue, and thrown out the verdict.

The case is Dow Chemical Co. v. Nova Chemicals Corp., 10- 1526, U.S. Court of Appeals for the Federal Circuit (Washington). The lower court case is Dow Chemical Co. v. Nova Chemicals Corp., 05cv737, U.S. District Court for the District of Delaware (Wilmington).

Gevo Sues DuPont, Butamax Over U.S. Patent for Biofuels

Gevo Inc., a maker of biofuels, sued DuPont Co. and its business partner Butamax Advanced Biofuels in federal court in Delaware alleging infringement of a new patent for alcohol fermentation processes.

The disputed patent 8,101,808, issued yesterday to Englewood, Colorado-based Gevo, covers methods for alcohol recovery at reduced cost, according to its written description.

Gevo contends Butamax -- a joint venture between Wilmington, Delaware-based DuPont and the U.K.’s BP Plc -- and DuPont “perform the methods described” in the patent without Gevo’s authorization and should pay unspecified damages after a jury trial.

The companies have been sparring over biofuel patent rights. Last year, Gevo asked the U.S. Patent and Trademark Office to review the validity of a Butamax patent for a fuel additive, questioning who was first to invent the technology.

The case is Gevo v. Butamax, 12-cv-070, U.S. District Court, District of Delaware (Wilmington).

For more patent news, click here.

Trademark

Google Faces EU Antitrust Complaint From French Shopping Website

Google Inc. faces an antitrust complaint at the European Commission from Twenga, a French shopping-comparison website, which says the world’s largest search engine may have abused a dominant position.

Bastien Duclaux, chief executive officer of Paris-based Twenga, said Google’s services “should not benefit from any privileged treatment” in the company’s search rankings. He said Google updates since late 2010 have demoted Twenga in favor of Google’s own shopping-comparison service.

The EU is investigating Google over claims it discriminated against other services in its search results and stopped some websites from accepting rival ads. Microsoft Corp. and shopping- comparison site Foundem are among companies that asked the agency to examine the Mountain View, California-based search engine.

The European Commission received the complaint from Twenga Jan. 23, Antoine Colombani, a spokesman for the Brussels-based regulator, said in an e-mail. Al Verney, a spokesman for Google in Brussels, declined to comment.

Google has “applied several algorithms last year and very recently in order to penalize these kind of products in the search results,” Duclaux said in a telephone interview. “Twenga lost more than 30 percent of its audience during the course of August.”

Duclaux said Google may also tweak the so-called quality score of websites to demote rival advertising platforms. The score helps set ad prices for the AdWords advertising program.

Google said in February that updates to the search engine were intended to favor “high quality sites” with “original content and information such as research, in-depth reports, thoughtful analysis and so on.”

Electronic Arts Seeks “Trouble Makers’ Trademark Registrations

Electronic Arts Inc., publisher of the Sims and Madden NFL computer games, may be headed in a new direction, if a new trademark filing is any indication.

The Redwood, California-based company filed two applications with the U.S. Patent and Trademark Office Jan. 18 to register “Trouble Makers” as a mark to be used for computer games.

Louboutin Seeks to Overturn Ruling on YSL’s Red-Soled Shoes

Louboutin SA has turned to an appeals court to stop Yves Saint Laurent America from selling red-soled shoes that it claims violates its trademark.

Louboutin is asking the panel to overturn U.S. District Judge Victor Marrero’s decision in August rejecting the company’s bid to prevent Yves Saint Laurent from selling shoes Louboutin said were identical to its own. At a hearing following that ruling, Marrero said he would defer deciding whether to cancel Louboutin’s red-sole trademark until the appeals court ruled on the injunction.

“We don’t claim shades of red,” Harley Lewin, a lawyer for Louboutin, told the three appeals judges yesterday in Manhattan. “We don’t claim anything but the mark as registered.”

The judges said they will rule later.

Yves Saint Laurent, the company named for the designer who died in 2008, began selling shoes with red outsoles “long before Mr. Louboutin began using them,” David Bernstein, a lawyer for the company, told Marrero at a hearing in July. YSL is a unit of Paris-based PPR, which owns other luxury brands including Gucci.

“Our concern is, as a fashion house making monochromatic shoes, we should be able to continue doing that,” Bernstein said in court yesterday. The monochromatic shoe is “the DNA of the brand,” he said.

Marrero said in his August opinion that “because in the fashion industry color serves ornamental and aesthetic functions vital to robust competition, the court finds that Louboutin is unlikely to be able to prove that its red outsole brand is entitled to trademark protection.”

Louboutin, a Paris-based fashion company, said in a lawsuit filed in April that Yves Saint Laurent’s red-sole footwear “threaten to mislead the public.”

Christian Louboutin, the designer for whom the company is named, got the idea for the red soles when he painted red nail polish on the black soles of a pair of women’s shoes. Court papers state that Louboutin’s red soles were introduced in 1992 and have been on all of its luxury shoes since then. They have been popularized by actresses like Sarah Jessica Parker in the TV show “Sex and the City.”

On the website of high-fashion department store Barneys, Louboutin’s red-soled high-heel shoes are priced from $595 to $4,645 a pair.

The U.S. Patent and Trademark Office awarded Louboutin a trademark for the red sole in 2008, according to the lawsuit.

The case is Louboutin v. Yves Saint Laurent America, 11- 3303, U.S. Court of Appeals for the Second Circuit (Manhattan).

Kohler Sued by General Power Systems Over Brochure Statements

Kohler Co., a maker of bathroom fixtures, was sued over claims in one of its product brochures by a maker of power generators.

The lawsuit was filed Jan. 23 in federal court in Milwaukee by Generac Holding Systems’ Generac Power Systems unit. Generac, based in Waukesha, Wisconsin, previously sued Kohler in October 2010, accusing the fixture company of infringing patent 7,230,345.

The patent covers a method of operating a standby electric generator. The 2010 suit is on hold, according to court papers.

In the new suit, Generac said Kohler is distributing a product brochure that unfavorably compares Generac’s 20kW generator to Kohler products. Statements made in the brochure about Generac’s product are false and misleading, and are likely to influence consumers, Generac said.

Generac asked the court to bar Kohler from making false statements about the products and to order a recall of all allegedly offending promotional material. Additionally, the company asked for all of Kohler’s profits flowing from the alleged disparagement, and for money damages, with extra damages to punish the fixture-maker for its conduct.

Kohler, based in Kohler, Wisconsin, didn’t respond immediately to an e-mailed request for comment.

Generac is represented by Adam L. Brookman, Michael T. Griggs and Kyle M. Costello of Boyle Fredrickson SC of Milwaukee.

The case is General Power Systems Inc., v. Kohler C., 2:12- cv-000676-RTR, U.S. District Court, Eastern District of Wisconsin (Milwaukee). The patent case is General Power Systems Inc. v. Kohler Co., 2:10-cv-00947-RTR, U.S. District Court, Eastern District of Wisconsin (Milwaukee).

For more trademark news, click here.

Copyright

Dotcom in Custody as New Zealand Awaits U.S. Extradition Request

Kim Dotcom, the founder of Megaupload.com, was detained in New Zealand on charges of copyright infringement conspiracy under a U.S. request for provisional arrest ahead of a formal extradition request.

The U.S. sought the arrest of Dotcom, who was held after a Jan. 20 helicopter raid on his leased Auckland mansion, before an extradition request, Elizabeth Collins, a spokeswoman at New Zealand’s Ministry of Justice, said in an e-mail yesterday. Requests for provisional arrests are made when there’s concern a suspect will flee, according to New Zealand’s extradition law.

Dotcom is sought in the U.S. where he was indicted on charges his file-sharing website was part of a $175 million copyright-infringement conspiracy with pirated film and music files being exchanged. Copyright law is complex and extradition on copyright offenses hasn’t been tested in any international court yet, according to Rick Shera, a New Zealand lawyer who specializes in information technology.

“This is, as far as we all know, the first case in which this type of activity has really been brought to court in a way which both parties will have their arguments heard,” Shera, a partner at Lowndes Jordan in Auckland, said. “The dividing line between a site which is providing these sorts of services legitimately and one which is providing them illegally is a fine one, and no one quite knows where the line is.”

Dotcom, Megaupload’s German founder who legally changed his family name from Schmitz, was charged in the U.S. because some of the site’s servers were based in Virginia and Washington, according to U.S. Justice Department’s indictment.

“The next step in this particular case is for New Zealand to receive a formal request for extradition,” Collins said. “In accordance with the treaty on extradition between the United States and New Zealand, the United States has 45 days from the date of the arrest to provide this request.”

New Zealand prosecutors must show Dotcom is accused of an offense that would be punishable by at least 12 months in jail in both the U.S. and New Zealand, according to the 1999 Extradition Act.

For copyright news, click here.

IP Moves

Kasowitz Hires IP Litigation Michael Eisenberg From Weil Gotshal

Kasowitz Benson Torres & Friedman LLP hired Michael Eisenberg for its intellectual-property practice, the New York- based firm said in a statement.

Eisenberg, a litigator, joins from New York’s Weil Gotshal & Manges LLP. He has represented clients in patent, copyright and trade secret disputes involving semiconductors, computer hardware and software. He has also appeared in U.S. Patent and Trademark Office proceedings.

He previously served as a judicial clerk to Judge Timothy Dyk of the U.S. Court of Appeals for the Federal Circuit, the Washington-based court that hears appeals of patent cases.

Eisenberg has an undergraduate degree in physics from Washington University, a master’s degree in physics from Florida State University and a law degree from George Washington University.

--With assistance from Phil Milford in Wilmington, Delaware, Susan Decker in Washington, Joe Schneider in Sydney, Chris Bourke in Wellington and Don Jeffrey in New York. Editors: Stephen Farr, Mary Romano

To contact the reporter on this story: Victoria Slind-Flor in San Francisco at vslindflor@bloomberg.net.

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


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