Bloomberg News

Kodak, Heineken, Hornets, Kraftwerk:Intellectual Property

December 20, 2012

A group including Apple Inc. (AAPL:US), Google Inc. (GOOG:US) and Research In Motion Ltd. (RIM) agreed to buy patents from bankrupt Eastman Kodak Co. for about $525 million, gaining the right to use the digital technology to capture and share photos.

The group is led by Intellectual Ventures Management LLC and RPX Corp. (RPXC:US), Kodak said in a statement yesterday. Google, Apple and RIM are among the 12 companies that will license the patents in the deal, according to a court filing. Under the terms, Intellectual Ventures will split the payment with the licensees.

Facebook Inc. (FB:US), Amazon.com Inc. (AMZN:US) and Microsoft Corp. (MSFT:US) also are part of the group, the court filing shows, along with Samsung Electronics Co., Adobe Systems Inc. (ADBE:US), Fujifilm Holdings Corp. (4901), Huawei Technologies Co., HTC Corp. (2498) and Shutterfly Inc. (SFLY:US) The auctioned patents -- more than 1,100 related to the capture, manipulation and sharing of digital images -- were previously estimated by advisory firm 284 Partners LLC to be worth as much as $2.6 billion.

The agreement resolves all patent-infringement lawsuits between Kodak and the 12 licensees, Veronda said. That includes suits Kodak had against Apple, RIM, Fujifilm, HTC, Samsung and Shutterfly. In a May filing, Kodak had said Apple alone owed it more than $1 billion in patent royalties.

Before uniting as one bidding group, Apple and Google had led competing consortiums bidding for Kodak’s patents, people familiar with the situation said earlier this year.

The two groups joined forces in August as the initial auction date approached, a person familiar with the process said today. Combining allowed each company to only pay for the patents and protection it needed.

A May ruling against Kodak by the U.S. International Trade Commission dealt a blow to the company’s pursuit of a higher price for its patents. The decision, the result of a two-year legal fight against Apple and RIM over a patent for previewing digital images on cameras, was upheld in July. It dashed Kodak’s plans to pursue royalty payments from Apple and RIM it once estimated at more than $1 billion.

Kodak needed to sell the patents for at least $500 million under a November agreement -- codenamed Komodo -- to obtain $830 million in financing to exit bankruptcy in the first half of 2013.

Kodak filed for bankruptcy after years of burning through cash while the rise of digital photography eroded its film business.

The bankruptcy case is In re Eastman Kodak Co. (EKDKQ:US), 12-10202, U.S. Bankruptcy Court, Southern District of New York (Manhattan).

For more patent news, click here.

Trademark

Heineken, Bavaria Lose Bid to Annul $290 Million Cartel Fine

Heineken NV (HEIA), the world’s third-largest brewer, and Bavaria NV lost final appeals against antitrust fines totaling 218.7 million euros ($290 million) for colluding in an illegal cartel on the beer market.

The European Union Court of Justice, the 27-nation bloc’s highest court, rejected the companies’ bids to overturn, cut or review the fines in their entirety.

The European Commission, the EU’s antitrust regulator, fined the brewers and former Dutch rival Grolsch in April 2007 for coordinating prices in the Netherlands from at least 1996 to 1999. InBev NV, which has since merged with Anheuser-Busch Cos. to become the world’s largest brewer, escaped a fine after tipping off EU officials.

A lower EU court last year annulled the antitrust regulator’s decision and 31.7 million-euro fine concerning SABMiller Plc (SAB)’s Grolsch. The September 2011 ruling by the EU General Court said the commission hadn’t proven that Grolsch directly participated in the cartel and “failed to explain” why the company should be held liable for a Dutch subsidiary’s conduct. The same court in June 2011 cut Heineken’s fine to 198 million euros from 219.3 million euros and Bavaria’s penalty to 20.7 million euros from 22.8 million euros.

Heineken’s original fine was paid in full in July 2007 and reported as an exceptional item, the Amsterdam-based company has previously said. Heineken is “disappointed” and “mandates 100 percent compliance with applicable competition laws,” according to an e-mailed statement.

Bavaria is “very disappointed” with the decision and “expected the court to judge differently,” spokeswoman Inge van der Heijden said by telephone.

The cases are: C-452/11 P, Heineken Nederland and Heineken v. Commission; C-445/11 P, Bavaria v. Commission.

Liverpool FC Defeats Attempt to Revoke ‘Liver Bird’ Trademark

Liverpool Football Club retains exclusive rights to the “Liver Bird” trademark despite complaints from a city resident that the mark should belong to the whole city, the U.K.’s Daily Mirror reported.

The Liver Building on which the bird image appears is a city landmark, and Liverpool resident Alfie Hincks filed suit claiming the bird was an image of the entire city, not just one of its football clubs, according to the Mirror.

The court rules that Hincks didn’t submit enough evidence for his argument, the newspaper reported.

Hinks told the newspaper his fight isn’t over and that he plans to ask the great-grandson of the architect who designed the Liver Building in his efforts to loosen the club’s exclusive hold on the trademark, according to the Mirror.

New Orleans Hornets May Use Werewolf-Related Term as Team Name

One of the names the New Orleans Hornets National Basketball Association team is seeking to register as a trademark is a Cajun name for a werewolf.

New Orleans Rougarou is one of five new applications the team submitted to the U.S. Patent and Trademark Office Dec. 5. According to the two applications for the mark, it would be used for “entertainment services” in the field of basketball, and for a variety of clothing.

“Rougarou” is a form of “loup-garou” used by French- speaking Cajuns for werewolves, which legendarily haunt the swamps of southwest Louisiana.

According to the patent office database, other names the team submitted include New Orleans Pelicans, New Orleans Mosquitos, and New Orleans Swamp Dogs.

In 1974, New Orleans’ pro basketball team was known as the New Orleans Jazz. That team moved to Utah in 1979 and is now known as the Utah Jazz.

Crown Equipment Seeks Overturn of USPTO Trademark Ruling

Crown Equipment Corp., an Ohio company that makes forklifts and other material-handling products, filed suit seeking judicial review of a trademark decision by the U.S. Patent and Trademark Office.

In a complaint filed yesterday in federal court in Toledo, Ohio, the company is challenging a patent office appeals board’s refusal to register “crown insite.” According to court papers, the term would be used for lift-truck and other material- handling products, including parts for forklift trucks. Crown applied for the mark in August 2007.

Crown says its registration was refused on the basis of possible confusion with two marks, one registered by Insight Technology Inc. of Londonderry, New Hampshire, and the other to Mine Radio Systems Inc. of Stouffville, Ontario.

In its pleadings the registered marks cover completely different classes of goods. Mine Radio Systems “Insite” mark is used for radio systems used inside mines, while Insight’s “Insight” mark covers wireless communications devices.

The company asked the court to reverse the patent office decision, and declare that its intended use of the mark wouldn’t be confusingly similar to existing trademarks. Crown also asked for an award of litigation costs.

The case is Crown Equipment Corp. v. U.S. Patent and Trademark Office, 3:12-cv-03075, U.S. District Court, Northern District of Ohio (Toledo).

For more trademark news, click here.

Copyright

Kraftwerk Wins German Copyright Dispute Over Two-Second Sample

Kraftwerk, a German electronic music project, has won a 12- year copyright battle over the use of a sample of their 1977 composition “Metall auf Metall,” the NME music news website reported.

The group had objected to the unauthorized use of a two- second sample by music producers Moses Pelham and Martin Haas on “Nur Mir,” a rap song by Sabrina Setlur, according to NME.

Germany’s Supreme Court said unauthorized sampling is acceptable only if there is no other way to reproduce the sound, NME reported.

The court determined that the sampled section could have been recreated through other means by the time the “Nur Mir” was made, NME reported.

Nigerian Hotels, Copyright Society Agree Over Music Royalties

Nigeria’s Copyright Society has come to an agreement with hotel operators in that country over music royalties, Nigeria’s Business Day newspaper reported.

The agreement ends all pending court cases against the hotels over royalties, according to Business Day.

The hotel operators -- through the Hotel Owners Association Abuja and Hotel and Personal Services Employers’ Association of Nigeria -- had claimed the rates sought by the licensing group were too high and had sought a fee reduction, the newspaper reported.

The dispute was mediated by Otunba Olusegun Runsewe, director general of Nigeria Tourism Development Corporation, according to Business Day.

For more copyright news, click here.

Trade Secrets/Industrial Espionage

Trade Secret Concerns Raised Over California Fracking Rules

California’s Department of Conservation released proposed disclosure rules covering hydraulic fracturing Dec. 18 that were criticized by the Environmental Working Group and the Center for Biological Diversity’s Climate Law Institute, McClatchy newspapers reported.

In a statement the Environmental Working Group said that other states’ experience indicated oil explorers claim trade- secret exemptions and that these are likely abused, according to McClatchy.

Jason Marshall, the chief deputy director of the Department of Conservation, said the rules, which govern the injection of water and chemicals underground to break up rock formations in the quest for oil, are only a discussion draft, McClatchy reported.

The Western States Petroleum Association, an oil industry trade group, said its members had used the fracking method of exploration in only 628 of California’s tens of thousands of oil wells, according to McClatchy.

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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