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AstraZeneca, Mylan, Hachettte: Intellectual Property

November 09, 2012

AstraZeneca Plc (AZN) and affiliates will pay as much as $11 million to settle claims the company violated antitrust and consumer-protection laws by keeping generic versions of the heart drug Toprol XL off the market.

Consumers and other buyers who paid for the drug from 2005 to 2012 may share in the fund by filing claim forms, available through, according to a statement yesterday from law firms including Kessler Topaz Meltzer & Check LLP. A federal judge will consider approving the settlement and attorneys’ fees of as much $3.5 million at a March 7 hearing in Wilmington, Delaware, the lawyers said.

The AstraZeneca defendants denied any wrongdoing, and agreed to the settlement partly “to avoid further expense, inconvenience” and uncertainties of protracted litigation, the London-based company said in court papers.

The case stems from suits filed in 2006 by drug wholesalers and health and welfare funds contending AstraZeneca used unfair trade practices, partly by bringing sham patent-infringement lawsuits against makers of low-cost generics.

About half of the settlement fund will be used to pay consumer claims and the other half will go toward claims by insurers and employee-benefit plans, the law firms said.

The case is In re Metoprolol Succinate End-Payor Antitrust Litigation, 06-cv-71, U.S. District Court, District of Delaware (Wilmington).

Mylan Settles Birth Control Pill Patent Suit with J&J

Mylan Inc. (MYL:US) said it settled a patent dispute with Johnson & Johnson (JNJ:US)’s Janssen Pharmaceuticals unit related to generic versions of the Ortho Tri-Cycle Lo birth control pills.

Mylan, based in Pittsburgh, said that beginning Dec. 31, 2015, or earlier “under certain circumstances,” it will be licensed to sell the drug in several different formulations. Other terms of the settlement are confidential, the company said.

Ortho Tri-Cyclen Lo posted $424.5 million in sales for the 12 months ending Sept. 30, the company said in the statement, attributing the number to the information service IMS Health.

The suit was filed in federal court in Newark, New Jersey, in November 2010. Janssen accused Mylan of infringing patent 6,214,815.

The case is Janssen Pharmaceuticals Inc., v. Mylan Inc., 2:12-cv-06019-src-clw, U.S. District Court, District of New Jersey (Newark).

For more patent news, click here.


Carmax Sues Automaxx, Claims South Carolina Company Infringes

Carmax Inc. (KMX:US), operator of more than 100 used-car superstores, sued a South Carolina competitor for trademark infringement.

Automaxx of Summerville LLC is using similar signage, including color scheme and font, to promote its business, Carmax said in the lawsuit filed in federal court in Charleston, South Carolina. The name Automaxx is also “confusingly similar,” Carmax claimed. Automaxx doesn’t have a license or permission to use the Carmax marks, according to court papers.

Carmax said it sent its first cease-and-desist letter to Automaxx in September 2011. Multiple letters followed to no avail as Automaxx continued with “willful infringement” of the Carmax trademarks, according to the complaint.

Customers are confused and mistakenly assume there’s a connection between the two entities, Carmax said. As a result, Richmond, Virginia-based Carmax said it has lost sales.

The two companies offer similar goods and services in the same markets, Carmax said, noting that it operates three of its superstores in South Carolina, Automaxx’s home state.

The company asked the court to bar Automaxx from using marks that are confusingly similar to Carmax’s and to order the withdrawal of the Automaxx business name, together with the destruction of all allegedly infringing promotional material.

It also requested that the court order Automaxx to produce a complete list of those to whom it sold, offered for sale, or promoted products, goods and services.

The company is seeking money damages to compensate for lost sales and extra damages to punish Automaxx for its conduct, along with awards of attorney fees and litigation costs.

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

The case is Carmax Auto Superstores Inc., v. Automaxx of Summerville LLC, 2:12-cv-03199-CWH, U.S. District Court, District of South Carolina (Charleston).

Toy Company Gets Adverse Ruling, Will Quit Selling ‘Buckyballs’

A New York-based toymaker lost a bid to dismiss a trademark suit brought by the estate of the late Buckminster Fuller.

The suit, filed in May in federal court in San Jose, California, accused Maxfield & Oberton Holdings LLC of making commercial use of the late architect and inventor’s name without authorization.

The toy company was selling desk toys comprised of round rare earth magnets and was calling them “Buckyballs.” In its complaint, the estate noted that a molecule of a chemical known as “Buckminsterfullerene” was discovered in 1985, and given the “Buckyball” nickname because of its resemblance to the geodesic dome structures designed by Fuller.

The estate said that it had given the toy company only a one-time license to use the name, in connection with a commemorative edition of Buckyballs, with the profits donated to the non-profit Buckminister Fuller Institute. Otherwise, the estate said, no license was given to the toy company.

In a Nov. 5 ruling, U.S. District Judge Lucy H. Koh rejected Maxfield & Oberton’s request to dismiss the suit. She said the toy company’s argument that its use of the name was protected by the First Amendment wasn’t supported by facts. The cases on which the toy company relied when it made this argument were based on the use of a famous person’s likeness, not his name, as was done with the toy, she said.

In a notice posted on its website, Maxfield & Oberton said it has decided to stop production of its Buckyballs because of the “baseless and relentless legal badgering.”

The case is Estate of Buckminster Fuller V. Mayfield & Oberton Holdings LLC, 5:12-cv-02570-LHK, U.S. District Court, Northern District of California (San Jose).

For more trademark news, click here.


News Corp. (NWSA:US)’s Fox Loses Bid to Block Dish’s AutoHop Ad-Skipping

News Corp.’s Fox Broadcasting unit lost its bid to block Dish Network Corp. (DISH:US)’s ad-free primetime television service and its so-called AutoHop features before a copyright-infringement lawsuit has been resolved.

Dish and Fox issued separate statements Nov. 7 saying that U.S. District Judge Dolly Gee in Los Angeles had ruled on Fox’s request for a preliminary injunction. The ruling was filed under seal and couldn’t be independently confirmed.

“We are gratified the court found the copies Dish makes for its AutoHop service constitute copyright infringement and breach the parties’ contract,” Fox said in an e-mailed statement. “We are disappointed the court erred in finding that Fox’s damages were not suitable for a preliminary injunction.”

Fox Broadcasting Co., Comcast Corp. (CMCSA:US)’s NBC Universal and CBS Corp. (CBS:US) separately sued Dish, the No. 2 U.S. satellite-television provider, claiming the service will destroy the “advertising supported ecosystem” that provides free, over-the-air primetime television. Dish sued the networks in New York, seeking a court ruling that it isn’t infringing copyrights.

Richard Stone, a lawyer for Fox, said at a Sept. 21 hearing that other distributors, including DirecTV (DTV:US), the largest U.S. satellite-television provider, will be forced to follow suit if Dish’s ad-free primetime television service isn’t blocked.

The Nov. 7 ruling “is a victory for common sense and customer choice,” R. Stanton Dodge, general counsel for Englewood, Colorado-based Dish Network, said in an e-mailed statement. “The ruling underscores the U.S. Supreme Court’s ‘Betamax’ decision, with the court confirming a consumer’s right to enjoy television as they want, when they want.”

Fox said it intends to appeal the judge’s denial of their request for a preliminary injunction.

Dish introduced its Hopper digital video recorder in March. It can record all the major networks’ primetime shows and store them for eight days after their initial broadcast. AutoHop, introduced in May, allows viewers, with the touch of a button, to skip all the commercials on recorded shows automatically, without having to fast-forward through them.

The case is Fox Broadcasting v. Dish Network, 12-04529, U.S. District Court, Central District of California (Los Angeles).

Hachette Sued by Author of Book About Burma’s Aung San Suu Ky

Hachette Book Group Inc. was sued for copyright infringement by the author of a book about Burmese Nobel laureate Aung San Suu Ky.

Alan Clements, the first American ordained as a Buddhist monk in Burma, claims Hachette violated the written agreement it made to publish his book, “The Voice of Hope -- Conversations with Alan Clements,” which consists of a series of conversations with the 1991 Nobel Peace Prize winner.

According to the complaint he filed yesterday in federal court in Boston, Hachette violated its agreement to give him an accounting for all sales of the book and to pay royalties required under the contract.

Clements entered into the contract with the publisher in 1996, with the agreement amended three times since then, according to his complaint. He claims that because of Hachette’s alleged violation of the contract, he has been unable to promote or exploit the book, and lost revenues from its sales that would have resulted when Aung San Suu Ky’s “continued notoriety on the international stage was most in the news.”

Clements also claimed that because of Hachettte’s failure to live up to the contract, he hasn’t been able to publish and distribute updated versions of the book. He accused Hachette of publishing and distributing an E-book version of “Voice of Hope” without his permission and without compensating him.

In addition to what he said are the missing royalties, Clements seeks compensation for the alleged damage caused his career “as a professional writer, journalist, Burma expert and public speaker.” According to his website, Clements is the author of eight books, mainly focused on Burma or on spiritual practices.

The writer asked the court to order Hachette to relinquish any rights it has to publish and distribute the work and to award attorney fees and litigation costs.

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

The case is Alan Clements V. Hachette Book Group Inc., 1:12-cv-12083-JCB, U.S. District Court, District of Massachusetts (Boston).

For more copyright news, click here.

To contact the reporter on this story: Victoria Slind-Flor in Oakland, California, at

To contact the editor responsible for this story: Michael Hytha at

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