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Patent Law

: Patently Obvious

Patently-O Bits and Bytes NO. 306

By Dennis Crouch, Esq.

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A University of Missouri student and entrepreneur was recently sued by the North Face for trademark infringement. The student?s company is called ?the South Butt.? On the issue of confusion, the South Butt?s attorney indicated that the public knows the ?difference between a face and a butt.? [AP] The complaint [Download NorthFaceComplaint] includes allegations of trademark infringement, dilution (which does not require proof of confusion), false designation of origin, contributory trademark infringement, common law trademark infringement, common law unfair competition, and violation of the Missouri anti-dilution statute. I think that SouthButt has a good chance of winning the straight trademark claims based simply on likelihood of confusion. The defense of parody often turns on the judge's sense of humor.
The judge assigned to the South Butt case (Judge Sippel) has presided over several trademark cases in his 12 years on the bench. His most recent case involves a solar panel manufacturer using the name PRG suing another company who had registered the domain name PRG.com and was selling other solar panels on that site. Patterson v. ABS Consulting. The most recent opinion in that case involved the denial of the defendant's motion to dismiss for failure to state a claim.
Google has been ordered to stop scanning French books. The Google Book project has scanned upwards of 10,000,000 books. [NYTIMES]
I just agreed to speak at the Texas IP Symposium two months from now in Austin (Feb 19). [Info will be available soon]
Listen to Kevin Noonan (MBHB & PatentDocs) and Dan Ravicher (PubPat) debate Gene Patenting on NPR?s Science Friday. [Link]
Recent Presumption if Irreparable Harm Cases:
- Multiquip Inc. v. Water Mgmt. Sys. LLC, 2009 U.S. Dist. LEXIS 117022 (D.Id December 16, 2009)(in breach of contract case, holding that plaintiffs are given no presumption of irreparable harm in the context of a preliminary injunction)
- Apple Inc. v. Psystar Corp., 2009 U.S. Dist. LEXIS 116502 (N.D. Cal. December 15, 2009) (?Except for trademark infringement claims, there is no presumption of irreparable harm with respect to permanent injunctions.?)
- BorgWarner, Inc. v. Dorman Prods., 2009 U.S. Dist. LEXIS 115871 (E.D.Mich. December 11, 2009) (in a patent case, finding that the presumption of irreparable harm had not been overcome in the context of a preliminary injunction)
- Bushnell, Inc. v. Brunton Co., 2009 U.S. Dist. LEXIS 110612 (D. Kan November 25, 2009)(?The Court is persuaded by the reasoning of those courts which have found that the presumption does not apply to preliminary injunctions in patent cases.?)
See also (cites from Bushnell opinion),
- Voile Mfg. Corp., 551 F. Supp.2d at 1306 (eBay eliminated presumption of irreparable harm in preliminary injunction context);
- Tiber Labs., LLC v. Hawthorn Pharms., Inc., 527 F. Supp.2d 1373, 1380 (N.D. Ga. 2007) (eBay eliminates presumption of irreparable injury in patent cases, whether raised at preliminary or permanent injunction phase);
- Sun Optics, Inc. v. FGX Int'l, Inc., No. 07-137-SLR, 2007 U.S. Dist. LEXIS 56351, 2007 WL 2228569, at *1-3 (D. Del. Aug. 2, 2007) (presumption of irreparable harm in preliminary injunction analysis did not survive eBay);
- Torspo Hockey Int'l, Inc. v. Kor Hockey Ltd., 491 F.Supp.2d 871, 881 (D. Minn. 2007) (same);
- Chamberlain Group v. Lear Corp., No. 05 C 3449, 2007 U.S. Dist. LEXIS 56351, 2007 WL 1017751, at *5 (N.D. Ill. March 30, 2007) vacated on other grounds, 516 F.3d 1331 (Fed. Cir. 2008) (same);
- Canon Inc. v. GCC Int'l Ltd., 450 F.Supp.2d 243, 254 (S.D.N.Y. 2006) (consistent with equitable principles set out in eBay, preliminary injunction movant must demonstrate likelihood of irreparable injury in absence of requested injunction);
- z4 Techs., Inc. v. Microsoft Corp., 434 F.Supp.2d 437, 440 (E.D. Tex. 2006) (eBay eliminated irreparable harm presumption in permanent injunction context)).
But see
- Christiana Indus. v. Empire Elecs., Inc., 443 F.Supp.2d 870, 884 (E.D. Mich. 2006) (eBay did not eliminate presumption);
- Idearc Media Corp. v. Nw Directories, Inc., 623 F. Supp. 2d 1223, 2008 WL 2185334, at *9 (D. Or. 2008) (copyright case).