By Victoria Slind-Flor – Feb 6, 2013
Zimmer Holdings Inc. was told to pay $70 million to Stryker Corp. for infringing patents related to a device that removes damaged tissue and cleans bones during joint-replacement surgery.
Zimmer infringed three Stryker patents, a federal jury in Stryker’s hometown of Kalamazoo, Michigan, said yesterday. The jurors found that a 25 percent royalty rate should apply to covered sales of infringing Zimmer products.
The jury also found the infringement was willful, meaning the U.S. District Judge Robert Jonker can further increase the award.
Stryker sued Zimmer in December 2010, claiming its patents were infringed by Zimmer’s Pulsavac Plus wound debridement system.
The case is Stryker Corp. v. Zimmer Inc., 1:10-cv-01223, U.S. District Court, Western District of Michigan.
‘IPhone’ Owner in Brazil ‘Open’ to Selling Rights to Name
The owner of the iPhone trademark in Brazil, IGB Eletronica SA, said it would consider selling the naming rights to Apple Inc.
“We’re open to a dialogue for anything, anytime,” Eugenio Emilio Staub, chairman of IGB, said in an interview in Sao Paulo, adding that the company hasn’t been contacted by Apple. “We’re not radicals.”
IGB’s Gradiente brand filed to register the trademark in 2000 and was awarded the rights in 2008. While Apple has sold its globally known mobile phone in Brazil for several years, Gradiente started selling its iPhone in December.
Folha de S.Paulo newspaper reported yesterday that the institute responsible for granting trademarks in Brazil confirmed that the exclusive rights to the name for mobile phones still belong to Gradiente, without saying where it got the information. The decision, originally set to be published yesterday, will be announced on Feb. 13. Staub said he hasn’t been informed of any decisions regarding the trademark.
Marcelo Chimento, the spokesman for the institute known as INPI, confirmed in a telephone interview that a ruling had been made, though he declined to disclose the decision. He said it’s “difficult” to grant approval to Apple’s request to use the trademark.
Apple spokesman Steve Dowling declined to comment.
Google Faces New EU Antitrust Complaint From Technology Group
Google Inc. faces another antitrust complaint from a group of rivals as it seeks to settle the European Commission’s two- year probe into claims its search results discriminate against competitors.
ICOMP, a coalition including Microsoft Corp., said it submitted a new dossier to the European Commission on Jan. 30, alleging that the world’s largest search engine obtained its dominance through unfair agreements with other companies in the Internet and advertising industry.
“By creating an illegal network of exclusive relationships with these important partners, Google achieved its key objective: gaining scale for itself while preventing its rivals from doing the same,” ICOMP said in a statement on its website.
Google last week submitted an offer to regulators to settle the antitrust probe after Joaquin Almunia asked the Mountain View, California-based company to January to address allegations that the company promotes its own specialist search-services, copies rivals’ travel and restaurant reviews, and has agreements with websites and software developers that stifle competition in the advertising industry. He first told Google in May that he wanted to settle the case.
If regulators decide that the company’s concessions could allay antitrust concerns, they can send it to rivals and customers for comments. If this market test is successful, the EU can make the commitments legally binding. Such a settlement would avoid possible fines against Google.
Microsoft is among ICOMP members that already complained to the EU about Google’s behavior. The Brussels-based commission confirmed today it received the ICOMP complaint last week.
“We continue to work co-operatively with the commission,” said Al Verney, a spokesman for Google in Brussels, on the new complaint.
ICOMP members Foundem, Hot-Map.com and Streetmap.co.uk previously asked regulators to investigate whether Google’s search results unfairly shut out rival products.
Kraft Sues Cracker Barrel Old Country Store for Infringement
Kraft Foods Group Inc., producer of Jello, Cheez Whiz and Planters Peanuts, sued a Tennessee restaurant chain for trademark infringement.
The suit is related to a licensing agreement Cracker Barrel Old Country Store Inc. signed with Smithfield Foods Inc.’s John Morrell Food unit in November 2012.
Kraft, based in Northfield, Illinois, objects to the license agreement, saying that the sale of ready-to-eat food products under the restaurant chain’s “Cracker Barrel” mark will encroach on its business and cause customer confusion.
Kraft has used its Cracker Barrel brand for cheese since 1954, and said in its complaint that until now, the restaurant chain has “maintained a distance from Kraft both with respect to goods sold and channels of trade used.”
The company seeks a court declaration that any use by the restaurant chain of the “Cracker Barrel” mark in connection with food products sold through third-party retail food channels would constitute trademark infringement.
Lebanon, Tennessee-based Cracker Barrel Old Country Store is “reviewing and evaluating” the court papers and “may comment in the future,” company spokeswoman Jeanne Ludington said in an e-mail yesterday.
Kraft said that over the past six decades, it has sold more than $1 billion worth of cheese products under the Cracker Barrel mark, and that the products are sold in all 50 states.
The company did license its brand to Frito Lay Inc. for cheese-flavored potato chips and pretzels. Kraft claims its “Cracker Barrel” mark is “vital” to the company and that it would suffer irreparable harm if the restaurant chain is able to go ahead with the license arrangement.
Kraft contends that because the restaurant chain has never sold any products under the “Cracker Barrel” brand anywhere other than its combination restaurant/country store properties, it has never established the right to the mark for use in retail sales.
Smithfield and Morrell aren’t parties to the suit.
In addition to a court order barring the use of its “Cracker Barrel” mark for sale of food products, Kraft also asked for awards of litigation costs and attorney fees. Kraft also requested a court order mandating that the restaurant chain conduct national advertising that will prominently disavow a connection with Kraft.
The case is Kraft Foods Group Brands LLC v. Cracker Barrel Old Country Store Inc., 1:13-cv-00780, U.S. District Court, Northern District of Illinois (Chicago).
Bridgestone Trademark Infringement Win Upheld by Chinese Court
Bridgestone Corp. said in a statement that it has won a trademark suit against a Chinese competitor.
The tire maker said it successfully sued Guangzhou Bolex Tyre Ltd. in the Tianjin Binhai New Area People’s Court in March 2011. Tokyo-based Bridgestone had objected to Bolex’s sale of tires under the “Gemstone” trademark, saying it was too familiar to “Bridgestone.”
Bolex filed an appeal to the Tianjin No. 2 Intermediate People’s Court, which upheld the lower court’s ruling, Bridgestone said.
The Japanese tire company said Bolex was ordered to quit making and selling Gemstone tires and to pay damages to Bridgestone.
Bolex didn’t respond immediately to an e-mailed request for comment.
Tetris Wins Order Barring Competitor Infringing Computer Game
Tetris Holding Co., which holds the rights to the popular computer game Tetris, won a copyright case against a New Jersey- based game company.
The suit was filed in federal court in Trenton, New Jersey, in December 2009 against Xio Interactive Inc. Tetris objected to Xio’s Mino game, which it said was “brazenly” copied by the New Jersey company’s game.
In her Jan. 30 order, U.S. District Judge Freda L. Wolfson barred the production, sale and licensing of Xio’s Mino. She dismissed trade-dress infringement, and unfair competition charges against Xio.
In May 2012 Judge Wolfson found that Xio had infringed the Tetris copyrights. Although Xio had acknowledged copying elements of the Tetris game, the company had argued that the elements it copied were functional and not entitled to protection under U.S. copyright law.
The judge disagreed. In that ruling she said Xio had “infringed a substantial amount of the overall copyrighted work.” Elements that Xio had argued were functional were, instead, “aesthetic choices designers of Tetris made to show or express game play.”
The case is Tetris Holding LLLC v. Xio Interactive Inc., 3:09-cv-06115, U.S. District Court, District of New Jersey (Trenton).
Trade Secrets/Industry Espionage
Sentence in Goodyear Trade-Secret Case Too Lenient, Court Rules
A federal appeals court affirmed the convictions of two men accused of stealing trade secrets from Akron, Ohio’s Goodyear Tire & Rubber Co. plant and said the trial court gave them too lenient a sentence.
Sean Edward Howley and Clark Alan Roberts were convicted of trade secret theft in federal court in Knoxville, Tennessee. They were found to have taken trade secrets related to the production of large steel-reinforced tires used on earthmoving machines.
The two men worked for a company that supplied some parts for Goodyear’s tire-assembly machine, according to court papers. When they came to repair some Goodyear machines in May 2007, they brought an unauthorized camera and took photos of some proprietary technology with the aim of passing them to a Chinese competitor of the tire company.
In December, the two were convicted of trade secret theft and wire fraud, and each was sentenced to four months of home confinement, 150 hours of community service and four years of probation.
Howley and Roberts appealed. Yesterday, the appeals court affirmed the conviction and agreed with government prosecutors that the sentences the two received were “procedurally unreasonable.”
The trial court had found that the government failed to establish any real loss suffered by Goodyear. The appeals court said this finding “seemed at odds with the defendants’ convictions for stealing property that had ‘independent economic value.’”
In returning the case to the trial court for resentencing, the appeals court said that while “an estimate of a substantial loss necessarily will increase” the range of the sentence, it wouldn’t override the court’s duty “to exercise discretion in deciding what sentences to impose on the defendants.”
The lower-court case is U.S.A. v. Roberts, 3:08-cv-00175, U.S. District Court, Eastern District of Tennessee (Knoxville). The appeal is U.S.A. v. Roberts 11-6194, U.S. Court of Appeals for the Sixth Circuit.
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