Articles Posted in U.S. 7th Circuit Court of Appeals

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Neri designed a glass sculpture that Architectural Building Arts (ABA) installed in the ceiling of the entrance to Hughes’s Madison condominium. Sager designed lighting for the area. With Hughes’s consent, Ferguson took photographs of the project; two include the sculpture. ABA put copies of the photos on its web site, in a newsletter, and in an application for an architectural award. Sager posted them on her web site; Ferguson posted them to his Flickr page. Neri claimed that the uses violated her copyright. A magistrate judge dismissed on the ground that Neri did not register her copyright, as required before litigation to enforce a copyright, 17 U.S.C. 411(a). Neri submitted a collection of photographs and obtained a certificate of registration. The court concluded that the application was defective and the certificate invalid. The Seventh Circuit vacated, noting the requirements of 37 C.F.R. 202.3(b)(4)(i)(B). The submission had a single title and Neri claims copyright in each of the sculptures represented by the photos and in the collection as a whole. There was no basis for the court’s conclusion that Neri’s submission was not in an “orderly form,” based on an apparent conclusion that only a single document can be orderly. View "Neri v. Monroe" on Justia Law

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Plaintiff, an active genealogist and animal rights activist, claimed that her name had commercial value and that search engines generated revenue as a result of internet searches of her name. She specifically alleges that various features of Google’s search engine violate her right of publicity by using her name to trigger sponsored links, ads, and related searches to medications, including Levitra, Cialis, and Viagra, all of which are trademarks of nationally advertised oral treatments for male erectile dysfunction. The district court dismissed her suit alleging common law misappropriation and violation of the state right-of-privacy law, Wis. Stat. 995.50(2)(b). The Seventh Circuit affirmed, citing the public interest and incidental use exceptions. View "Stayart v. Google Inc." on Justia Law

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Eastland is the proprietor of the rap duo Phifty-50, which, according to its web site, has to its credit one album (2003) and a T-shirt. Eastland has registered “PHIFTY-50” as a trademark. It also claims a trademark in “50/50” and contends that Lionsgate and Summit infringed its rights by using “50/50” as the title of a motion picture that opened in 2011. The district court dismissed, finding the movie’s title descriptive because the film concerns a 50% chance of the main character surviving cancer. The Seventh Circuit affirmed, stating that the complaint fails at the threshold: it does not allege that the use of “50/50” as a title has caused any confusion about the film’s source, and any such allegation would be too implausible to support costly litigation. The phrase 50/50 or a sound-alike variant has been in use as the title of intellectual property for a long time. If there is any prospect of intellectual property in the phrase 50/50, Eastland is a very junior user and in no position to complain about the 2011 film. View "Eastland Music Grp. LLC v. Lionsgate Entm't Inc." on Justia Law

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ProLink and GPS compete, manufacturing and selling GPS-based golf course distance measurement and course management products. GPS owns the 518 patent for a player positioning and distance finding system and sued ProLink for patent infringement. GPS also claimed slander of title and unfair competition, alleging that ProLink falsely represented that it owned an exclusive license under the patent as part of a security agreement with Comerica Bank. This agreement was recorded and allegedly encumbered GPS’s title. ProLink entered into a second agreement, this time representing that it owned outright the 518 security agreement. ProLink was insured under Federal’s commercial general liability insurance policy and requested defense. Federal informed ProLink that it would not defend or indemnify because GPS’s allegations did not satisfy the policy definition of “personal injury;” if they did, the Intellectual Property Laws or Rights Exclusion or Expected or Intended Injury Exclusion would apply. ProLink sought declaratory judgment that Federal breached its duty to defend. The district court found in favor of Federal , holding that the first alleged “personal injury” for which GPS sought damages (2006) occurred outside of the policy period (2007-2008). The Seventh Circuit affirmed. The underlying allegations concern only disparagement of property, which is not covered. View "ProLink Holdings Corp. v. Federal Ins. Co." on Justia Law

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Flava, which specializes in production and distribution of videos of black men engaged in homosexual acts, obtained a preliminary injunction against myVidster, an online social bookmarking service by which people refer sites to those with similar tastes, based on a finding that myVidster is a contributory infringer. The Seventh Circuit vacated the injunction. A Flava customer is authorized only to download the video for his personal use. If instead he uploaded it to the Internet and so by doing so created a copy (because the downloaded video remains in his computer), he was infringing. The court remanded for determination of whether myVidster was a contributory infringer if a visitor to its website bookmarks the video and later someone clicks on the bookmark and views the video. View "Flava Works, Inc v. Marques Rondale Gunter, et al" on Justia Law

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An episode of the animated television show, South Park, entitled “Canada On Strike,” satirized the 2007-2008 Writers’ Guild of America strike, popular viral videos, and the difficulty of monetizing Internet fame. In the episode, characters create a video that is a parody of the real world viral video, “What What (In The Butt),” Brownmark, the copyright holder for the original WWITB video, sued for copyright infringement under the Copyright Act of 1976, 17 U.S.C.101. SPDS claimed that the South Park version was fair use and attached the two works. Brownmark argued that the court could not consider fair use on a 12(b)(6) motion to dismiss. The district court dismissed. The Seventh Circuit affirmed the “well-reasoned and delightful opinion.” The court properly decided fair use on a motion; the only evidence needed to decide the issue were the original version of WWITB and the episode at issue. Under the incorporation-by-reference doctrine, reliance on the attached works did not violate Rule 12(d); if a plaintiff mentions a document in his complaint, the defendant may then submit the document to the court without converting defendant’s 12(b)(6) motion to a motion for summary judgment. View "Brownmark Films, LLC v. Comedy Partners" on Justia Law

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FS and AOS discussed working together to develop a pump motor to prevent entrapment of swimmers by suction created by pool drains. FS sent a letter discussing specific features. After months of correspondence, FS sent another letter, with test results from a previous unsuccessful design and desired features. None of the correspondence mentioned confidentiality. Eventually FS signed the AOS standard one-way confidentiality agreement, stating that FS was a supplier of research consulting services. FS did not require AOS to enter into a confidentiality agreement. After signing the agreement FS shared more details. The relationship broke down when the companies began discussing a formal marketing agreement. AOS eventually introduced and marketed pump motors that FS claims incorporated its trade secrets. FS sued for misappropriation of trade secrets and unjust enrichment under Wisconsin law. The district court granted summary judgment in favor of AOS, finding the misappropriation claim barred by a three-year statute of limitations and that FS failed to take reasonable steps to protect claimed trade secrets. Voluntary disclosure of information defeated the unjust enrichment claim. The Seventh Circuit affirmed. View "Fail-Safe LLC v. A.O. Smith Corp." on Justia Law

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Two computer programs hold the registered trademark "CONDOR." After the district court entered summary judgment, the Seventh Circuit concluded that a trial was required on a confusion-in-trade allegation, but held that the state university was immune from federal jurisdiction. On rehearing, the Seventh Circuit reversed itself, citing the doctrine of waiver by litigation conduct and again rejected summary judgment.The state is not entitled to assert sovereign immunity over the counterclaims. View "Bd. of Regents Univ. of WI Sys. v. Phoenix Software Int'l, Inc." on Justia Law

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Plaintiff claimed that several of defendant's brands of toilet paper infringed on its trademark design. The district court entered summary judgment, holding that toilet paper embossed patterns are functional and cannot be protected as a registered trademark under the Lanham Act, 15 U.S.C. 1115(b)(8). The Seventh Circuit affirmed. Plaintiff patented the design, claiming it to be functional and can only claim the protection of a patent, not that of a trademark. The "central advance" claimed in the utility patents is embossing a quilt-like diamond lattice filled with signature designs that improves perceived softness and bulk, and reduces nesting and ridging. This is the same essential feature claimed in the trademarks. View "Georgia-Pacific Consumer Prods. v. Kimberly-Clark Corp." on Justia Law

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In negotiations for architectural services for construction of a hotel, the parties agreed that defendant would pay an additional $15,000, apart from design fees, if defendant elected not to use plaintiff's construction affiliate. The agreement stipulated that architectural designs would remain plaintiff's intellectual property. Defendant did not use plaintiff's construction affiliate and the relationship deteriorated. Plaintiff claimed that it had no further design obligations; defendant refused to pay what $28,000 demanded by plaintiff. Plaintiff accepted an $18,000 payment in satisfaction, but registered a copyright for designs that it had produced and filed copyright infringement claims against defendant. The district court ruled in favor of defendant, holding that plaintiff had not complied with registration requirements (17 U.S.C. 408(b)) when it submitted re-created designs because its office had been robbed. The Seventh Circuit affirmed. Plaintiff did not identify anything in the designs that was original and protectable; the designs were, for the most part, based on the Holiday Inn Express prototype. View "Nova Design Build, Inc. v. Modi" on Justia Law