Bloomberg News

Harvard, Time Warner, Toys ‘R’ Us: Intellectual Property

September 27, 2012

In a case involving the OncoMouse, a rodent genetically modified to contain a cancer-causing gene that can be inherited, Harvard College and its licensee sued the U.S. Patent and Trademark Office.

In the complaint filed Sept. 14 in federal court in Alexandra, Virginia, Harvard has asked the court to review the patent office’s refusal to consider additional claims to patent 5,925,803, which covers a testing method using transgenic mice having the cancer-causing gene.

Harvard and its exclusive licensee, DuPont Co. (DD:US), are asking the court to declare that the patent office “acted arbitrarily, capriciously, and contrary to law” by concluding that the patent had expired and in refusing to permit added claims.

They want the patent office to add new claims and for the court to declare the patent is still in effect.

Licensing rates for the OncoMouse haven’t been disclosed. A 2004 article in the Scientist magazine suggests that the transgenic mice patents “are some of the most valuable intellectual property that has ever been created.” According to the database of the U.S. Patent and Trademark Office, DuPont registered “OncoMouse” as a trademark in January 2002.

The case is President and Fellows of Harvard College v. David J. Kappos, 1:12-cv-01034-LO-IDD, U.S. District Court, Eastern District of Virginia (Alexandria).

For more patent news, click here.

Trademark

DC Comics Sues Florida Barbershop Over ‘Superman’ Marks

Time Warner Inc. (TWX:US)’s DC Comics unit sued the operator of two central Florida barbershops for trademark infringement.

The comic book company objects to the “Supermen Fades to Fros” and “Superman Pro Barbershop” names used by the barbershops, and the use of its Superman-related trademarks on the barbershop chain’s outdoor sings and website.

The public is likely to falsely assume that an affiliation exists between the barbershops and the comic book company, DC Comics says. Despite receiving multiple requests from DC Comics to cease and desist in its alleged infringement, the barbershop chain continues to use “infringing promotions in the marketing, advertising and solicitation of the infringing barbershops,” the comic book company said in its complaint.

It asked the court to bar further infringement, for the surrender and destruction of all infringing promotional materials and to be awarded the shops’ supermenfadestofros.com Internet domain name.

DC Comics also asked to be awarded three times the shops’ profits attributable to the alleged infringement, attorney fees and ligation costs.

The barbershop chain didn’t respond immediately to an e- mailed request for comment.

The case is DC Comics v. Jones, 6:12-cv-01456-JA-GJK, U.S. District Court, Middle District of Florida (Orlando).

For more trademark news, click here.

Copyright

Artist Awarded Damages for Unauthorized Reproduction of Works

A North Carolina artist who discovered copies of his work were being sold in retail stores without his permission has settled his case against the retailer.

Thomas Fleming of Wilmington, North Carolina, filed suit in federal court in Santa Ana, California, in May 2011 after learning that copies of two of his paintings were being sold in California HomeGoods stores without authorization.

In the complaint he said he had been contacted in 2010 by a California HomeGoods supplier -- ATI Industries Inc. of Orange County, California -- about reproducing two of his works, “Depths of Love” and “Spirit & Life.” Fleming listened to the offer, and decided not to allow the reproductions, he said in his pleadings. He later learned that reproductions of these two works had been made without his permission and were being sold in California HomeGoods stores throughout Southern California.

He said he was injured by this alleged infringement, and asked the court for money damages of at least $150,000, surrender and destruction of all infringing copies, and awards of attorney fees and litigation costs.

According to the minutes of the non-jury trial, the court found his copyrights had been infringed, and awarded him $10,800. Fleming filed his notice of dismissal of the case, noting that each side was to pay its own litigation costs.

For more copyright news, click here.

Trade Secrets/Industrial Espionage

Toys ‘R’ Us Accused of Misappropriating Fuhu’s Trade Secrets

Toys “R” Us Inc. (TOYS:US), the Wayne, New Jersey-based toy retail chain, was sued for trade secret misappropriation by a California company that develops Internet applications.

According to the complaint filed Sept. 24 in federal court in San Diego, Toys “R” Us is accused of violating a confidentiality agreement with Fuhu Inc. and selling a knockoff copy of Fuhu’s tablet for children that is powered by Google Inc.’s Android operating system.

El Segundo, California-based Fuhu said it created its nabi tablet in 2011, and that Toys “R” Us became its exclusive distributor. The initial order of nabi tablets sold out on the Toys “R” Us website within a few days, according to court papers. Initially Toys “R” Us reported pre-orders coming in at the rate of 1,000 every three hours, until the point at which the toy company stopped accepting pre-orders, Fuhu said in its complaint.

It accused the toy seller of doing “virtually no promotion” and of ordering nabi tablets in quantities that were “commercially unreasonable.” After a disappointing Christmas season, Fuhu terminated the distribution rights of Toys “R” Us in January 2012.

In September, Toys “R” Us introduced the Tabeo, a tablet device Fuhu says competes with the nabi. In a Sept. 24 statement, Fuhu President and co-founder Robb Fujioka said the Tabeos are “cheap knockoffs” that devalue “the children’s tablet category as a whole.”

In the complaint, Fuhu said the promotion and business plan for Tabeo is based on information it disclosed to Toys “R” Us in confidentiality for use in marketing the nabi.

Fuhu also accused Toys “R” Us of infringing the trade dress of the nabi. Both products have a butterfly shape, Fuhu said, noting that the name of its product -- nabi -- is the Korean word for “butterfly.”

It asked the court to order Toys “R” Us to halt its use of Fuhu’s trade secrets and the surrender of all Tabeo tablets to the California company. Additionally, Fuhu seeks money damages, including extra damages to punish Toys “R” Us for its actions, together with awards of litigation costs and attorney fees.

Toys “R” Us declined to comment because the company is in the process of reviewing the complaint, company spokeswoman Kathleen Waugh said in an e-mail yesterday.

The case is Fuhu Inc., v. Toys “R” Us Inc., 3:12-cv- 02308-WQH-WVG, U.S. District Court, Southern District of California (San Diego).

IP Talk

WIPO Told Its Technical Assistance Didn’t Violate Sanctions

The World Intellectual Property Organization’s technical assistance to North Korea doesn’t violate United Nations sanctions resolutions, WIPO said in a Sept. 24 statement.

Jose Filipe Moraes Cabral, chairman of the UN committee that oversees implementation of Security Council resolutions related to North Korea, said in a letter to WIPO Director General Francis Gurry that “nothing” in three specific Security Council resolutions bars the technical assistance program WIPO has conducted in North Korea.

This included the transfer of equipment and software aimed at assisting the Democratic People’s Republic Of Korea in developing technical capacity for IP rights protection.

The Geneva-based WIPO said it already had in place measures to ensure that all managers must seek guidance and clearance from its Office of Legal Counsel for any activity proposed in a country subject to UN sanctions.

In April 2012 Fox News broke a story accusing WIPO of making an end run around sanctions put in place against North Korean for that country’s efforts to build nuclear weapons. WIPO was trying to send North Korean computers to use for its IP protection programs, according to Fox.

In July members of the U.S. House Committee on Foreign Affairs, wrote a letter to Gurry with respect to the agency’s technical assistance to North Korea and Iran. The letter asked for “unfettered access to all documents and witnesses relating to these transfers to Iran and North Korea.”

In response Edward Kwakwa, legal counsel at the Geneva- based organization, said that the two countries were receiving only “standard information-technology equipment” after meeting WIPO’s needs-assessment and validation procedures.

He said the technical assistance didn’t include any kind of technology or graining barred under Security Council resolutions.

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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