Property, intangible

a blog about ownership of intellectual property rights and its licensing

  • 50% Successful With Jus Tertii Defense

    There are a couple of recent cases with an ownership-based defense that one doesn’t see very often – the jus tertii defense. “Jus tertii” – Wikipedia says Latin for “third party rights” – is a claim by a defendant that someone else has rights superior to the plaintiff’s that defeat the plaintiff’s claim.

    It’s generally a loser in a trademark case, because a trademark plaintiff need not have exclusive rights. Golden Temple of Oregon, LLC v Wai Lana Productions, LLC describes it this way:

    [A] third party’s prior use of a trademark is not a defense in an infringement action. A number of cases from the 1920s so hold, including Ward Baking Co. v. Potter-Wrightington, Inc., in which the court wrote that “even if, for some purposes and in some territory, [a third party] may have a right in the trade-mark superior to that of the plaintiff, the defendant is not thereby exonerated from responsibility for an attempt to appropriate to itself a good will created by the plaintiff during a long course of business.” 298 F. 398, 402 (1st Cir. 1924). This rule is nothing more than the application to the field of trademarks of the familiar real-property doctrine that “[p]ossession is title against all the world but the true owner [.”] Modern trial courts have adhered to this rule . . . .

    In both recent cases, the plaintiff is already wrangling with another party over ownership of the mark. The pre-existing dispute is an invitation for the newly-sued defendants to try a jus tertii defense.

    In Golden Temple, Yogi Bhajan developed a spiced tea and his students formed the predecessor to Golden Temple to sell the YOGI TEA. Golden Temple was eventually a formal licensee but terminated the license, so Yogi Bhajan’s widow sued Golden Temple for trademark infringement.

    Golden Temple then sued Wai Lana Productions for infringement of what it claims are its YOGI and YOGI TEA marks. Wai Lana filed a motion to dismiss for failure to join an indispensible party, the yogi’s widow. The court construed it as a jus tertii argument and denied the motion because the widow’s potential interest in the marks did not mean that Golden Temple could not itself have a claim against Wai Lana.

    In United Food Imports, Inc. v. Baroody Imports, Inc., the dispute was over the mark BASMA for food products sold to the U.S. Middle Eastern community. This was a case of dueling licensees. A company called Orouba Agrifoods Processing Co. owns foreign registrations for the BASMA mark and had licensed United Food Imports in the United States. United Food Imports filed its own applications for the BASMA mark without Orouba’s knowledge, Orouba subsequently ended the relationship, and licensed defendant Paradise Halal Meat, LLC (no mention in the decision about who Baroody Imports is). Separately, Orouba filed a petition to cancel the United Food registration and United Foods retaliated by suing Orouba in the Southern District of New York for trademark infringement. In this case, United Foods sued Paradise Halal Meat in the District of New Jersey.

    Here it looks like there might be some degree of cooperation between defendant Paradise Halal Meat and non-party Orouba. Paradise Halal Meat counterclaimed United Food for a judgment that Orouba is the rightful owner of the mark and for cancellation of the United Food registration, the same claims Orouba asserted in the cancellation action.

    The counterclaim ploy was no good, but Paradise Halal Meat was luckier than Wai Lana with a jus tertii defense overall. The court held that Paradise Halal Meat did not have standing to assert claims on behalf of Orouba in the counterclaim, but allowed Paradise Halal Meat to convert the counterclaim to an affirmative defense. There is an exception to the usual disfavor for a jus tertii defense, which is if the defendant can prove privity with the third party allowing it to claim some entitlement to the priority rights of the third party:

    [I]f a third party permits a defendant to use a trademark as part of a contractual arrangement, the defendant can avoid liability for trademark infringement by invoking the superior trademark rights of the third party.

    Paradise Halal Meat’s jus tertii theory therefore survives.

    Golden Temple of Oregon, LLC v Wai Lana Prods., LLC, No. 09-902-KI (D. Or. May 12, 2010).

    United Food Imports, Inc. v. Baroody Imports, Inc., No. 09-2835 (DRD) (D.N.J. April 6, 2010).

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  • Very Helpful Federal Circuit Explication of Standing Analysis

    Lawsuits about standing in patent cases are a dime a dozen: you can find some here. But this case has some really nice summary if you need to get a quick take on the legal standard. First, here are the possible standing iterations:

    Under Aspex Eyewear, a patent may not have multiple separate owners for purposes of determining standing to sue. Either the licensor did not transfer “all substantial rights” to the exclusive licensee, in which case the licensor remains the owner of the patent and retains the right to sue for infringement, or the licensor did transfer “all substantial rights” to the exclusive licensee, in which case the licensee becomes the owner of the patent for standing purposes and gains the right to sue on its own. In either case, the question is whether the license agreement transferred sufficient rights to the exclusive licensee to make the licensee the owner of the patents in question. If so, the licensee may sue but the licensor may not. If not, the licensor may sue, but the licensee alone may not. When there is an exclusive license agreement, as opposed to a nonexclusive license agreement, but the exclusive license does not transfer enough rights to make the licensee the patent owner, either the licensee or the licensor may sue, but both of them generally must be joined as parties to the litigation.[*]

    Although patent rights can be divided up many different ways between a licensee and owner, the court has to decide which one has the bigger bundle to decide who the owner is:

    A patent “is, in effect, a bundle of rights which may be divided and assigned, or retained in whole or part.” Vaupel Textilmaschinen, 944 F.2d at 875. Thus, although all the various rights available under the patent are initially held by the named inventor or inventors, they may, as a result of licensing agreements and assignments, become separated and be held by multiple individuals. When a sufficiently large portion of this bundle of rights is held by one individual, we refer to that individual as the owner of the patent, and that individual is permitted to sue for infringement in his own name. When a plaintiff lacking a sufficiently large portion of rights brings suit, that plaintiff does not have standing to sue on his own, and the suit must be dismissed, or additional holders of rights under the patent must be joined as parties to the suit, as appropriate given the plaintiff’s status as either an exclusive or a nonexclusive licensee.

    And the court helpfully pulled together a list the rights it has weighed before:

    Of course, [1] transfer of the exclusive right to make, use, and sell products or services under the patent is vitally important to an assignment. We have also examined [2] the scope of the licensee’s right to sublicense, [3] the nature of license provisions regarding the reversion of rights to the licensor following breaches of the license agreement, [4] the right of the licensor to receive a portion of the recovery in infringement suits brought by the licensee, [5] the duration of the license rights granted to the licensee, [6] the ability of the licensor to supervise and control the licensee’s activities, [7] the obligation of the licensor to continue paying patent maintenance fees, and [8] the nature of any limits on the licensee’s right to assign its interests in the patent. Frequently, though, [9] the nature and scope of the exclusive licensee’s purported right to bring suit, together with the nature and scope of any right to sue purportedly retained by the licensor, is the most important consideration. Where the licensor retains a right to sue accused infringers, that right often precludes a finding that all substantial rights were transferred to the licensee. . . . Under the prior decisions of this court, the nature and scope of the licensor’s retained right to sue accused infringers is the most important factor in determining whether an exclusive license transfers sufficient rights to render the licensee the owner of the patent.

    Notably, while the retaining the right to sue looks like it can be pretty dispositive, watch out for this misstep when drafting it:

    [The right to sue] does not, however, preclude such a finding [that all substantial rights were transferred to the licensee] if the licensor’s right to sue is rendered illusory by the licensee’s ability to settle licensor-initiated litigation by granting royalty-free sublicenses to the accused infringers.

    The right to sue is not illusory, though, where the licensee may grant a license but the license has a pass-through royalty obligation.

    Here, throwing the sticks up in the air and seeing whether the bigger pile lands in front of the licensor or exclusive licensee, the Court of Appeals for the Federal Circuit reverses the district court and decides the licensor still has the bigger pile. Remanded.

    Alfred E. Mann Foundation for Scientific Research v Cochlear Corp., No. 2009-1447 (Fed. Cir. May 14, 2010).

    * Personally, I’m a little confused by this last sentence. If they both have to be parties, didn’t they both sue? I suspect what the court is saying is that if either brought suit without the other, the complaint doesn’t have to be dismissed and can instead be amended to add the missing party.

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  • Can a Trade Secret Licensee State a Claim?

    It can in Wisconsin. In Metso Minerals Industries, Inc. v. FLSmidth-Excel LLC, there was no question that the plaintiff, Metso, was only a licensee of the secret, not the owner. Two of the defendants were former employees of Metso and one of its licensees, but now are employees of the corporate defendant Excel. Metso accused the two of taking technical data sheets and design information for a rock crusher and also accused two high-ranking officers at Excel of actively encouraging the acquisition of the trade secrets.

    The defendants moved for summary judgment on the theory that only the owner of a trade secret has standing to state a claim for misappropriation of a trade secret. Trade secret law is state law, and Wisconsin has adopted a version of the Uniform Trade Secrets Act it codifies at Wis. Stat. § 134.90. There is no controlling decisional state law in Wisconsin on the issue, so it was up to the federal court judge to decide what the state court would say about the situation.

    In Wisconsin, the statute states:

    (2) Misappropriation. No person, including the state, may misappropriate or threaten to misappropriate a trade secret by doing any of the following:
    (a) Acquiring the trade secret of another by means which the person knows or has reason to know constitute improper means.

    The defendants’ first argument was that the language “of another” means “of the owner,” but that was a no-go. The comments to the Uniform Trade Secret Act make clear that this phrase means, in the situation where there are multiple owners of a trade secret, that a claim can only be brought by the one from whom the trade secret is misappropriated, not the other owners. The fact that the comment contemplated multiple owners “taught away” from an interpretation that only an owner may bring an action.

    Another section of the statute seemed more promising:

    (3) INJUNCTIVE RELIEF. (a) 1. A court may grant an injunction against a person who violates sub. (2).

    . . .

    (b) In exceptional circumstances, an injunction granted under par. (a) may condition future use of a trade secret by the person who violated sub. (2) upon payment of a reasonable royalty by that person to the owner of the trade secret for no longer than the period of time for which the court may enjoin or restrain the use of the trade secret under par. (a).

    Here, only the owner of the trade secret can get royalties, so isn’t the statute in general talking about owners? Not good enough, according to the court, because the plaintiff wasn’t seeking a royalty, only injunctive relief and damages. Those sections don’t say anything about “owner.”

    The defendants then haul out some case law, none of it controlling and, as the court decides, all of it distinguishable. In Omnitech Int’l., Inc. v. Clorox Co., 11 F.3d 1316, 1323 (5th Cir. 1994), the plaintiff had no interest at all in the trade secrets. In RMS Software Dev., Inc. v. LCS, Inc., 1998 WL 74245 (Tex. App. Feb. 19, 1998), the case was about the Colorado Uniform Trade Secret Act, which differs from the Wisconsin act by referring to the owner in the definition of trade secret. Althin CD Medical, Inc. v. West Suburban Kidney Center, S.C., 874 F.Supp. 837 (N.D. Ill. 1994) could be distinguished because the case was about contractual rights, specifically that the plaintiff did not have the right to bring a lawsuit in its license from the trade secret owner.

    There was one case the court conceded was in defendants’ favor, Gabriel Int’l, Inc. v. M & D Industries of Louisiana, Inc., 719 F.Supp. 522 (W.D. La. 1989), a conclusory four pages, but it was trumped by DTM Research, L.L.C. v. AT & T Corp., 245 F.3d 327 (4th Cir. 2001). The Metso court agreed with the DTM Research court that “the law does not protect ownership in information as such but rather protects the owner from the use of improper means to obtain that information or from its improper use.” The claim therefore can be brought by anyone in possession of the secret against those who misappropriate it. It also doesn’t have to be an exclusive licensee, as is the case in patent law, because a trade secret claim is more similar to a breach of confidence than interference with property, so it is the victim of the misappropriation who has been wronged and therefore has the claim.

    Assuming a statute is more like Wisconsin than Colorado, DTM Research looks like the case to follow, the Metso court citing these courts for doing so (parentheticals by the court):

    • DaimlerChrysler Services v. Summit Nat’l, 2006 WL 1420812, *8 (E.D. Mich. 2006) (“The Court agrees with the holding in DTM Research that for purposes of trade secrets law, the focus is appropriately on the knowledge, or possession, of the trade secret, rather than on mere ‘ownership’ in the traditional sense of the word.”)
    • Parking Co., L.P. v. Rhode Island Airport Corp., 2005 WL 419827, *3 (R.I. Super. 2005) (citing DTM and holding that Rhode Island’s UTSA “does not require ownership of the property in order to have trade secret protection thereof.”)
    • Fast Capital Marketing, LLC v. Fast Capital LLC, 2008 WL 5381309, *12 (S.D. Tex. 2008) (quoting and discussing DTM Research approvingly in case in which party who possessed, but did not own, trade secrets was permitted to sue for misappropriation)
    • In re Cayman Island Firm of Deloitte & Touche, 2001 WL 1042233 *2-3 (Tex. App. 2001) (adopting DTM’s rationale in order to interpret that Tex.R. Evid. 507–which allows the owner of a trade secret the privilege of refusing to disclose the secret–also allows possessors of a trade secret to utilize the privilege as well.)

    Metso Minerals Indus., Inc. v. FLSmidth-Excel LLC, No. 07-cv-926 (E.D. Wis. May 7, 2010).

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  • Most Excellent Conference

    Yesterday there was a conference devoted to my favorite topic, Ownership and Control of IP Rights. What a shame it was on a different continent so I couldn’t attend. Luckily, the IPKat summarizes it here, here and here.

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  • What is SALBA and Who Owns It?

    For me, Ralston v. Salba Corp. was one of those “whoops, keep an eye out for that next time” kind of cases. Note to self – in the future, check for a reversionary right in the property being licensed.

    Plaintiffs William and Richard Ralston and Great Western Tortilla Co., a company that had been owned by the Ralstons, were the original owners of the marks SALBA SMART and SALBABALANCE. SALBA is a trademark for a particular varietal of a chia seed, purportedly with health benefits. The Ralstons assigned the marks to Salba Corp., N.A., which granted an exclusive worldwide license back to the Ralstons and Great Western Tortilla for certain snack food products. The Ralstons in turn sublicensed the mark to Salba Smart Natural Products, LLC, a co-plaintiff with the Ralstons in the suit. This is the court’s description of the terms of the assignment and license agreement between the plaintiffs and defendant:

    • Defendant Salba Corp. N.A. shall not adopt, grant any rights, and or use SALBA SMART, SALBABALANCE, or any term in combination with SALBA in North America on certain products identified in a supply agreement;
    • Defendant Salba Corp. N.A. shall not use, assign, sell or otherwise transfer the Marks without the Ralstons’ and Great Western Tortilla’s prior written consent;
    • The Assignment and Agreement would terminate in the event that either Defendant Salba Corp. N.A. assigned, transferred, sold or licensed the Marks without the Ralstons’ and Great Western Tortilla’s prior written consent or Defendant failed to comply with any other provision of the Agreement;
    • In the event of termination by the above-described means, Defendant Salba Corp. N.A. would forfeit ownership of all right, title and interest to the Marks, and title to the Marks and accompanying good will would automatically revert back to the Ralstons. The forfeiture of and reversion of rights would be set forth in a confirmatory assignment, which Defendant would execute.

    Defendant Salba Corp. then licensed at least SALBA SMART to Core Naturals, LLC. This was a fatal decision: the arbitrator found that Salba Corp. had breached the assignment agreement by licensing to Core Naturals. (If you’re interested, read the arbitration award. There’s bad blood all over; the decision here tells only a small part of it.) Therefore, the ownership of the marks reverted to the Ralstons and the arbitrator enjoined Salba Corp. from performing under its license agreement with Core Naturals. The decision went further; although Salba Corp. retained ownership of a U.S. registration for SALBA for the seeds themselves, it is prohibited from licensing this registration in North America.

    Core Naturals and another licensee, Source Salba Inc., tried to intervene, since now their licenses for the use of SALBA are at least questionable. Too late, said the court, denying motions for either intervention of right or permissive intervention, albeit served with an invitation:

    The instant action concerns the parties’ specific rights and the obligations of the Ralstons and Salba Corp. N.A. under the 2007 Trademark Assignment and Agreement, as well as Defendant Salba Corp. N.A.’s breaches of those obligations. The Proposed Intervenors’ claims concern their rights under separate agreements they entered into with Defendant Salba Corp. N.A. and Defendant’s obligations pursuant to those agreements. Nothing prevents the Proposed Intervenors from filing a separate action against Defendant. The Proposed Intervenors’ participation in the instant suit would not change the fact that Defendant breached the 2007 Trademark Assignment and Agreement, in part, by granting unauthorized trademark licenses to them. However, their participation would interject new and distinct issues. In light of the new and distinct issues, denial of the third parties’ Motions for Leave to Intervene does not bind them by res judicata or collateral estoppel from obtaining relief/damages from Defendant for the improper licensing of said trademarks.

    Some comfort for practitioners – the arbitration award says that Core Naturals knew of the Ralstons’ exclusive license, because Salba Corp. asked the Ralstons to license Core Naturals and there had been some due diligence but the Ralstons ultimately declined. So Core Naturals wasn’t without notice; indeed it looks like the Ralstons’ refusal to license to Core Naturals may have precipitated the situation.

    The ownership of the SALBA trademark per se looks like it may be the root of the case, but there are few clues given in the documents. Core Naturals’ Motion to Intervene says it has been using the SALBA mark since 2005, and Source Salba says it was licensed in 2006, both before the assignment of the SALBA SMART and SALBABALANCE marks. The arbitrator also awarded the Ralstons only the SALBA SMART and SALBABALANCE marks worldwide, but defendant Salba Corp. still has more U.S. applications and registrations containing the mark SALBA (as noted above, Reg. No. 3071655 for SALBA, and App. Nos. 77487209 and 77142369 for SALBA LIFE and SALBA OLE) that were not assigned to the Ralstons. The first use date in the Ralston applications is after the first use date for SALBA for seeds. There are also a few unrelated applications for SALBA formatives (three abandoned and one live – use this query in TESS: salba*.bi. not “salba corp”.on.) and two applications by an unrelated third party use “salba” generically (salba.gs.). Was the Ralstons’ assignment of its marks under threat of suit for infringing the Salba Corp. SALBA mark? And, overarching all, there is a pending Canadian lawsuit over the ownership of the company Salba Corp. N.A.

    An ugly, ugly situation that looks like it’s only half-told and far from over.

    Ralston v Salba Corp., No. 09-cv-02142-CMA-MJW, 2010 WL 1644627 (D. Colo. Apr. 21, 2010).

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  • No Surrender Boys!


    There’s an awesome dust up down in San Antonio over the ownership of the trademark THE ALAMO. You sort of think that ownership would be settled by now, but apparently not. An application to register the mark for “museum services, namely, exhibiting to the public a historical site” was filed by the Daughters of the Republic of Texas, the organization that has operated the museum since 1905. Seeing as the State of Texas owns the building, though, it has a different opinion on the matter and has filed for an extension of time to oppose the registration.

    What fun. First, we have some always-entertaining confusion about what trademarks are, as quoted in the Austin American-Statesman:

    Atkins said the application for a trademark was filed last October to give the Daughters a way to market official Alamo items and control the use of the name, in the same way that the National Football League licenses souvenirs and other companies control who can use their name.

    “You can buy a Tony Dorsett T-shirt from Wal-Mart or you can go buy the real deal from the NFL. It’s kind of like that,” she said. “There are a bunch of people who use the Alamo name, and we’re not trying to limit that. … We’re just trying to do some good business practices.”

    So I guess unauthorized Alamo mouse pads at Wal-Mart are ok –

    Then, as Tamara Bennett points out at IP and Entertainment Law, a registration for “museum services” is perhaps not the best choice if what you’re after is the licensing of promotional goods –

    I see an uphill battle for the Daughters, although the Daughters did register the trademark for Agua del Alamo in 2001 without complaint, now incontestable:

    Undoubtedly it will settle soon, depriving us all of some good knock down, drag out fun in Texas.

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  • Color Me Puzzled

    It’s a routine trademark infringement suit over both parties’ use of the mark VANTAGE. Plaintiff Vantage, Inc. is the owner of a pending application for VANTAGE, which has been opposed by the defendant Vantage Travel Service, Inc., the opposition now stayed. Defendant filed a motion for summary judgment on a § 43(a) claim, a state law unfair trade practices claim, and for common law trademark infringement.

    The court decides that all the claims rest on likelihood of confusion and then finds that there is indeed a question of fact on confusion (surprise, surprise). At the end of the case is this somewhat surprising admission, though – the analysis in its entirety:

    Common Law Trademark Infringement Claim

    Although ownership is not required to assert a claim under 15 U.S .C. § 1125(a), ownership is required to “have standing to seek relief for common law trademark infringement.” [citations omitted.] Vantage concedes that it is not the owner of the VANTAGE Mark, but is a former licensee. Vicario [owner of Vantage Inc.], a nonparty, is the owner of the VANTAGE Mark. Based on the foregoing, Vantage Travel is entitled to summary judgment on Vantage’s common law trademark infringement claim.

    Putting aside the puzzling statement that Vantage, Inc. is a former licensee of its apparently current business owner, this is the death knell for the application. Only an owner can file a trademark application.

    Vantage, Inc. v. Vantage Travel Service, Inc., No. 6:08-2765-HMH (S.C. April 8, 2010).

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  • Meet Those Who Blog

    The wait is over – we have the Official Announcement from the TTABlog for this year’s Meet the Bloggers (VI, for those keeping count), although we are still anxiously awaiting the moniker assigned this year by the Trademark Blog (back story here). Yours truly has the honor of co-hosting this year, still riding the coattails of my erstwhile Massachusetts residency.

    What: Meet the Bloggers VI (the best non-INTA event during INTA)
    When: Monday, May 24th, beginning at 8pm
    Where: Lucky’s Lounge, 355 Congress Street, Boston

    Frantically working on my swag, hoping to top the premiere year of the LL-A triangle. Hope to see you there!!

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  • “New Discovered” Doesn’t Mean “I Just Now Went Looking”

    American Plastic Equipment, Inc. claimed to own the copyright in toy action figures first manufactured by Louis Marx & Co. Defendant Toytrackerz, LLC made replicas and was sued. In its original decision (blogged here and here), the court found that there were two defects in American Plastic’s chain of title. The first break was in the context of a bankruptcy, where the court found that there was no proof that secured creditor Chemical Bank had actually acquired the copyrights in the bankruptcy proceeding. The second break was an oral assignment instead of a written one.

    So American Plastic gets a new lawyer and goes digging for the missing documents. For the first break in the chain of title, American Plastic went back to the bankruptcy files and located the Louis Marx & Co. transfer to Chemical Bank. For the second, the plaintiff coughed up a nunc pro tunc copyright assignment, dated after it had lost on summary judgment.

    The court considered the motion under Fed. R. Civ. P. 60(b), which allows for relief from judgment for, inter alia, newly discovered evidence. To be successful under 60(b), the movant must show that it could not have known of and obtained the evidence through diligence prior to the court’s order. That was the death knell; the bankruptcy documents had been there all along, it was only that American Plastic had to go to the trouble of getting them. The nun pro tunc assignment failed too; it was not “newly discovered,” but “newly created.”

    The plaintiff’s dying gasp was to claim that a transfer, when it is an assignment-back, can be oral, which can only be challenged by the other party to the transaction (citing Arnstein v. Porter, 154 F.2d 464 (2d Cir.1946); Kingsrow Enters., Inc. v. Metromedia Inc., [1978 WL 952,] 203 U.S.P.Q. 489 (S.D.N.Y.1978); Law v. Nat’l Broad. Co., 51 F.Supp. 798 (S.D.N.Y.1943)). The court decided this was an argument under subparagraph (1) of 60(b), which allows for a relief from judgment where there has been a mistake, including a judicial mistake. But whether the court had the law right or wrong didn’t matter, because it was an argument that the plaintiff could have made originally but didn’t.

    Better lawyering a little too late. Looking for comments on another defendant’s likelihood of success in arguing that collateral estoppel prevents American Plastic from claiming copyright ownership in a subsequent suit.

    American Plastic Equip., Inc. v. Toytrackerz, LLC, No. 07-2253-DJW (D. Kan. Mar. 31, 2010).

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  • Who Is the Real Florida Tea Party?

    A Florida lawyer is sending threatening letters claiming others cannot say they are the “Florida Tea Party,” based on his registration of it as a political party.

    The recipients filed a declaratory judgment action on trademark theories. Complaint here. Reuters coverage here.

    South Florida Tea Party, Inc. et al versus Tea Party    , S.D. Fla. 10:cv-80062-KAM (Justia docket).

    HT Amerikat.

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