Letter from AmeriKat: From Sea to Shining Sea

The AmeriKat was travelling again this past week. Irrespective of the past 25 years of frequent flying transatlantic-ally, continentally, transpacific-ally, and more, she is always surprised to find herself in a completely new location after seemingly no time at all. Leaving behind one established life and role and trading it in for a new role, set of contacts and friends has always given the AmeriKat a bit of a thrill. She can discard her "American lawyer in London" role when she steps off the plane in Dallas and just be someone welcomed home by immigration officials. Entering immigration in other ports her role is constantly transformed by a stamp in the passport to tourist, visiting family, attending a conference, here for business, or "living and working here". The only constant in these travels, from country to country and coast to coast, is her trusty Coach luggage, who has seen her across hundreds of thousands of miles, over-head bins and immigration authorities and is the subject of her first story this week.

Jo-Ann Fabrics sued for infringing fabric by Coach

In most isolated strip malls in U.S. cities from sea to shining sea, usually in between a dry-cleaners and a cell-phone retailer, is a Jo-Ann Fabrics where soccer-moms, crafters, and all in between go to purchase a multitude of fabrics, zippers, buttons and threads. Last Monday, Jo-Ann Fabrics was sued for trade mark, trade dress and copyright infringement in Chicago federal court by New York-based high-end leather goods manufacturer and AmeriKat favorite, Coach. Coach is complaining about a fleece fabric being sold by Jo-Ann Fabrics in store and on-line which is infringing Coach's signature "C" trade mark, associated trade dress rights and copyright in the signature "C" trade mark design (picture, right). Coach is asking the court for $2 million per each infringing mark, additional damages, attorney fees, and an injunction restraining future sales of the infringing product.

The "C" trade mark and insignia is on several of Coach's signature lines of bags, wallets, belts, shoes, hats, scarves and the lining therein and was registered as a U.S. trade mark in September 2002. You can even spot the AmeriKat in Holborn by the violet Coach scarf with the trade mark double "C" pattern that she carries on her Coach bag. However, the "C" insignia and pattern is a prime target for counterfeiters and counterfeit Coach bags (see AmeriKat report on previous action taken by Coach in Chicago) and the market is rife with copycats. According to the complaint Coach sells more than $3 billion products annually and has filed more than 500 trade mark infringement suits since 2010.

According to the complaint the fabric (picture, left) was designed and supplied to Jo-Ann Fabric by the named co-defendant, Feldman Co. and together with Jo-Ann Fabric are accused by Coach of trying to benefit from the "incalcuable goodwill" associated with Coach's C trade mark by selling the allegedly infringing fabric. Coach also argue that consumers will be confused as to the source of the fabric - the AmeriKat does not disagree, but there are some differences between the two fabrics. The "C"s on Jo-Ann's Fabric fabric are almost closed, looking more like "O"s than the clearly differentiated "C"s on Coach's fabric. The AmeriKat believes these differences not to be fatal and also believes that although a consumer would be able to recognize the difference after closer study of the fabric, initial interest confusion is nevertheless present.

Had the Amerikat seen the fabric in a Jo-Ann's Fabrics store her immediate reaction would first be "Why is Coach allowing their signature print fabric to be sold in Jo-Ann's Fabrics?"- a reaction that goes first to the pure dilution argument as argued by the complaint. Her next reaction would be one dealing with tarnishment of the mark - "Why is Coach allowing their signature print fabric to be printed on fleece and sold in Jo-Ann fabrics?". As far as the AmeriKat knows from the Coach range, they have never used their signature print on fleece - a fabric that is not associated with the up-market silk and leather ranges produced by Coach. Of note Jo-Ann Fabrics does sell fabrics with trade mark names and logos, namely for major league sports teams such as the New York Yankees and licensed fabrics from Disney. The AmeriKat does not anticipate this case going all that far and expects it to settle quite quickly given the similarity of the designs and strength of reputation in Coach's mark, however it acts as a warning to fabric buyers not to skate so closely to the edge of trade mark infringement.

Organic farmers sue Monsanto over genetically modified seeds

From Illinois to New York now. Two weeks ago, the Public Patent Foundation (PUBPAT), a non-for profit legal services organization based out of the Cardozo School of Law, filed a pre-emptive lawsuit in Manhattan federal court on behalf of 60 plaintiff family farmers, seed businesses and organic agricultural organizations against agricultural biotechnology company Monsanto challenging their patents on genetically modified seed. The lawsuit was pre-emptive in order to protect the class from anticipated patent infringement suits should their crops ever be contaminated by Monsanto's genetically modified seed. The AmeriKat has read about the 60 plaintiffs and noted that they included three farmers and seed producers from her home state of New Mexico, Chispas Farms, in Albuquerque, Jardin del Alma from Monticello and farmer Paul Romero from Espanola - a reminder that patent litigation does not just impact big businesses in Silicon Valley, but your neighbors.

PUBPAT's Executive Director and law lecturer at the Cardozo School of Law, Dan Ravicher, stated that the case

"asks whether Monsanto has the right to sue organic farmers for patent infringement if Monsanto's transgenic seed should land on their property. It seems quite perverse that an organic farmer contaminated by transgenic seed should be accused of patent infringement, but Monsanto has made such accusations before and is notorious for having sued hundreds of farmers for patent infringement, so we had to act to protect the interests of our clients."

For anyone who has seen Food, Inc., you will be aware about such legal issues involving Monsanto (click here for an excerpt of Food, Inc. about Monsanto) and the case of Percy Schmeiser. Genetically modified seed are alleged to contaminate and destroy organic seeds when they enter organic crops. Further, legally speaking, as with what happened with Schmeiser, when genetically modified seed enters a neighbouring crop and grows and/or cross pollinates with a farmer's crop the farmer can be held to be infringing the patent of that seed. PUBPAT is thus asking the court to declare that if organic farmers are contaminated by Monsanto's seed they need not fear of being threatened with patent infringement proceedings.

PUBPAT are also arguing that Monsanto's genetically modified patents for seeds are invalid because they do not meet the "usefulness" criteria under section 101 of the Patent Act. An invention is "useful" under section 101 if it is capable of providing some identifiable benefit. The complaint cites Justice Story's dicta in Lowell v Lewis (1817) which stated that inventions that are "injurious to the well being, good policy, or sound morals of society" are unpatentable. Ravicher's argument is that genetically modified seed has negative economic and health effects, and the promised benefits and usefulness of the seed, namely increased production and decreased herbicide use, are false. (picture, right - alfalfa)

Monsanto stated that the lawsuit was a "publicity stunt" and that Monsanto is committed to never suing farmers over the inadvertent presence of their genetically modified seed in their fields - (the AmeriKat wonders how does one even prove or disprove inadvertent presence of GM seeds?) Monsanto also stated that the validity of their patents was without question and supported by legal precedent. Monsanto stated that:

"The plaintiffs' approach is a publicity stunt designed to confuse the facts about American agriculture. These efforts seek to reduce private and public investment in the development of new higher-yielding seed technologies. This attack comes at a time when the world needs every agricultural tool available to meet the needs of a growing population, expected to reach 9 billion people by 2050. While we respect the views of organic farmers as it relates to the products they choose to grow, we don't believe that American agriculture faces an all-or-nothing approach."

The suit comes soon after the US Department of Agriculture (USDA) fully deregulated genetically modified strains of alfalfa. The USDA has also allowed farmers to plant genetically modified sugar beets without restrictions while it completes its Environmental Impact Statement (EIS) on that crop. The timing of the lawsuit suggests that the plaintiffs groups may feel that the time is right to take action before an increasing number of GM crops are deregulated by the USDA and before the alleged impacts of GM crops on organic crops become more serious.

The AmeriKat will be watching this fight with anticipation. Although it is unlikely that PUBPAT will be able to create much of a dent in such a powerful organization, like Monsanto, she is interested in any attempt to try to address the balance of power created by the patent system in the agricultural industry. But what do readers think - is it a hopeless publicity stunt, or are the invalidity arguments with merit?

The AmeriKat recommends this recent interesting article by Anna Lappe in The Atlantic about the issues surrounding GM, Monsanto and food production.

Byrne settles with Crist over Talking Heads song use

From New York, we fly south to Florida where Florida's former Governor Charlie Crist settled (picture, left) a copyright infringement lawsuit last week brought against him by Talking Heads' David Byrne after Crist used the 1985 Talking Heads's song "Road to Nowhere" in a political attack ad during his Senate campaign last year. Crist's campaign failed to seek permission from Byrne, the Talking Heads or Warner Brothers when they used the song in the Senate campaign video published on YouTube attacking Crist's Republican opposition, Marco Rubio. Byrne sued Crist for $1 million. Byrne said last year that the lawsuit was

"not about politics...It's about copyright and about the fact that it does imply that I would have licensed it and endorsed him and whatever he stands for."

Rubio himself was also on criticized for using The Steve Miller Band's "Take the Money and Run" in an attack ad against Crist. Rubio, however, was not sued. AmeriKat readers may recall past political song problems, such as in 2008 when Jackson Browne sued then presidential candidate John McCain for unauthorized use of his song "Running on Empty". Browne's lawyer, Lawrence Iser, also represented Byrne and stated in the initial complaint that it was "extraordinary" for another Republican campaign to misappropriate another artists's work without permission.

Another lesson that party politics and rock music do not mix.