Annie Oakley Enterprises and its owner, Renee Gabet, seek leave to file a second amended complaint that doesn’t add any trademark infringement claims against Amazon but “identifies infringing products with greater particularity,” said their motion Monday (docket 1:22-cv-02246) in U.S. District Court for Southern Indiana in Indianapolis. The plaintiffs allege of all the businesses they contacted for infringing their trademarks, “Amazon alone has consistently failed to take prompt action to cease its infringing activity” (see 2212050052). Granting the plaintiffs leave to file their second amended complaint “will overcome numerous objections Amazon has made to discovery on the grounds that the discovery is not directed toward products ‘in the operative complaint,’” said the motion. The plaintiffs believe “these objections are frivolous,” it said, but it’s more efficient to amend the complaint “than to bother the court with motions to compel over the scope of infringing products.” The proposed second amended complaint “so limits the ‘accused products’ and should significantly reduce the need for the parties to seek guidance from the Court about the scope of discovery,” it said.

The 11th U.S. Circuit Court of Appeals, in a Monday opinion (docket 21-12835), upheld the finding of the Southern Florida district court when it ruled tech company Corellium was shielded by the fair use doctrine when it created virtualization software capable of running Apple’s iOS and other operating systems. In granting summary judgment for Corellium on Apple’s three copyright claims, the district court was partially right when it said Corellium’s virtualization software is “transformative,” said the 11th Circuit. “It furthers scientific progress by allowing security research into important operating systems,” it said. The district court also rightly said that iOS is “functional operating software that falls outside copyright’s core,” said the 11th Circuit. Corellium “didn’t overhelp itself to Apple’s software," and Corellium’s product doesn't "substantially harm the market for iOS or iOS derivatives,” so Apple’s own incentive to innovate remains strong, it said. The 11th Circuit remanded counts two and three of Apple’s complaint to the district court “to independently consider those claims in the first instance.” Count two alleged direct infringement of Apple’s icons and wallpapers, and count three alleged contributory infringement. The 11th Circuit ruling was a “victory” for security and fair use, said Meredith Rose, Public Knowledge senior policy counsel, in a statement. “It’s well-established in copyright law that protected works can be used, in their entirety if necessary, for the purposes of criticism, commentary, and other ‘transformative’ uses,” said Rose. The 11th Circuit rightly agreed “largely functional” software such as iOS “can be used to create new and valuable tools without running afoul of copyright law,” she said. “Independent security research -- especially regarding systems in wide use, such as iOS -- is absolutely crucial, and this kind of borrowing and transformation is what allows it to happen.”

The 9th U.S. Circuit Court of Appeals is considering scheduling oral argument for August in choreographer Kyle Hanagami’s appeal of the district court’s dismissal of his copyright infringement claims against Epic Games, said a text-only docket entry Friday (docket 22-55890). The U.S. District Court for the Central District of California, dismissing Hanagami’s copyright claims, said “no substantial similarity existed” between the dance moves in Hanagami’s video and the rendering of those steps in Epic’s Fortnite franchise (see 2211300012).

MusarubraDefendant McAfee opposes plaintiff James Linlor’s motion to add Musarubra as a co-defendant in his allegations that McAfee cybersquatted on the cyberguard.com domain name, said its opposition Thursday (docket 5:23-cv-00385) in U.S. District Court for Northern California in San Jose. Linlor attempted to add Musarubra to the case after McAfee disclosed it sold the domain to Musarubra in 2021, said its opposition. McAfee has an outstanding motion to dismiss Linlor’s amended complaint “that should conclude this case” and render his motion to add Musarubra moot, it said. Linlor’s request to add another party “would do nothing to change the course of events,” because Linlor has no “cognizable claim” under the Anticybersquatting Consumer Protection Act, it said.

The information that plaintiffs Renee Gabet and her company Annie Oakley Enterprises seek from Amazon’s outside counsel, Robert Cruzen of Klarquist Sparkman, is more readily available from Amazon itself, said Amazon’s reply Wednesday (docket 1:22-cv-02246) in U.S. District Court for Southern Indiana in Indianapolis in support of its April 11 motion to strike Cruzen from the plaintiffs’ witness list (see 2304120004). Gabet and her company allege Amazon ignored the trademark infringement conduct of its third-party sellers. The plaintiffs suggest Amazon should wait until the eve of trial to address whether Cruzen can even be trial counsel, “because a likely consequence of being a trial witness is disqualification” as trial counsel, said Amazon’s reply. This demonstrates that the plaintiffs’ true goal in listing Cruzen as a witness isn’t “to help prove their case at trial, but instead to harass Amazon,” it said. The plaintiffs say they want to question Cruzen about whether he actually turned over their trademark infringement notices to Amazon, and whether Amazon delisted products found to be infringing, and if so, who made the decision, and when and why, said the reply. “For each topic, Amazon is an equally or better source of information” than Cruzen, so the plaintiffs “have failed to meet their burden” to list him as a trial witness, it said. According to the plaintiffs, said the reply, a central issue in the case is whether Amazon had knowledge of the plaintiffs’ trademarks, and if so, whether it acted to investigate suspected infringing activity. But the central issue, according to Amazon, “actually is whether Amazon had notice of plaintiffs’ allegations that specific accused products allegedly infringe the trademarks,” said the reply. The plaintiffs don’t argue that Cruzen “had this knowledge,” it said.

Regional sports networks operator Diamond Sports Group and MLB are clashing over unpaid fees for telecast rights for Arizona Diamondbacks, Cleveland Guardians, Minnesota Twins and Texas Rangers games. In a docket 23-90116 omnibus objection Friday, Diamond told the U.S. Bankruptcy Court for the Southern District of Texas the teams are contractually obligated to give it direct-to-consumer streaming rights with MLB approval, and said MLB has been withholding approval because it wants to monetize those rights itself. Diamond said its decision not to pay the teams the full amounts due under those contracts "is therefore entirely reasonable and should come as no surprise to MLB or the Teams." Diamond said it should be allowed to use the “breathing spell” of the automatic stay of its Chapter 11 bankruptcy proceeding to make decisions about its contract portfolio. It said it's required to pay for only the “reasonable value” of what it receives under the contracts while it determines whether to assume or reject the contracts as part of its plan to emerge from bankruptcy, By filing for bankruptcy, Diamond "made the conscious decision to not pay the Diamondbacks, while continuing to exploit the benefits of the Diamondbacks’ postpetition services," the Diamondbacks said in an emergency motion last month to compel Diamond to perform under the telecast rights agreement. "Debtors are using the Clubs’ valuable, unique and exclusive intellectual property without paying a single penny for it," echoed the Guardians, Twins and MLB. The Chapter 11 "does not relieve them of their contractual commitments," the teams and MLB said. "What is extraordinary is that the Debtor RSNs continue to broadcast Twins and Guardians games with zero payment. What is extraordinary is that the Debtor RSNs ... allege that they have some 'right' to pay less than the contract rate for those games. This is not the law."

The district court erred when it granted summary judgment to Poly and its hardware and software architect Wilson Chung and in denying Cisco's motions for spoliation sanctions, said Cisco’s mediation questionnaire Friday (docket 23-15590) in the 9th U.S. Circuit Court of Appeals. Cisco is asserting trade secret misappropriation claims against Poly and Chung under the Defend Trade Secrets Act and California Uniform Trade Secrets Act. Cisco alleges Chung improperly kept “substantial Cisco confidential information” for the Cisco 730 headset and the Webex Desk Pro when he left Cisco in 2019 to join Poly, then disclosed those trade secrets to other Poly employees (see 2304220002), said the questionnaire. Cisco also alleges Poly and Chung destroyed evidence “that would have illuminated the full extent of their misappropriation, it said. Cisco seeks damages in the form of a “reasonable royalty,” and an injunction barring further misappropriation of its trade secrets by Poly and Chung, it said. Poly has sought attorneys' fees and costs, Chung sought costs, it said. Cisco opposed both motions, and the U.S. District Court for the Northern District of California “has yet to rule on either request,” it said. Cisco and Poly also submitted motions to seal certain exhibits that were submitted in connection with the parties' summary judgment and spoliation, and those motions “also remain pending,” it said.Cisco’s opening brief in its 9th Circuit appeal is due July 28, and the answering brief from Poly and Chung is due a month later.

Averon’s April 10 response brief (see 2304110051) doesn’t “rescue” its first amended complaint “from the fundamental pleading failures that doom the claims,” said the redacted version Friday (docket 1:22-cv-01341) of AT&T’s April 21 reply brief in support of its motion to dismiss Averon's trade secret misappropriation allegations. Averon alleges AT&T courted it as a business partner for Averon's passwordless authentication technology, only for AT&T to use that technology to form the ZenKey joint venture with T-Mobile and Verizon that foreclosed Averon as a direct market competitor (see 2301100002). “Key elements and specificity are missing from the complaint, and the response brief can’t “correct those deficiencies or fill those gaps,” said AT&T. The complaint should be dismissed with prejudice, it said. “There is no misappropriation” because Averon doesn’t “viably plead” any improper means, it said. AT&T didn’t misappropriate Averon’s alleged trade secrets, nor was AT&T under an obligation to protect Averon’s confidential disclosures, it said. “When, like here, the plaintiff’s allegations make clear that the allegedly confidential material was beyond the scope of any contractual confidentiality obligation, dismissal is warranted,” it said.

Beatles rights holder Apple Corps and its Subafilms subsidiary, owner of the Yellow Submarine trademark, seek to keep under seal the identities of the defendants it alleges in an accompanying complaint are trafficking in “counterfeits and confusingly similar imitations” of goods over the internet, said their motion Wednesday (docket 0:23-cv-60769) in U.S. District Court for Southern Florida in Fort Lauderdale. The defendants’ counterfeiting and infringing activities are causing “concurrent harm” to the plaintiffs and “an overall degradation of the reputation and goodwill” of the Beatles brand, said the motion. The defendants are listed in a redacted Schedule A in the complaint, referring to them only as “individuals, business entities and unincorporated associations.” Temporarily sealing that portion of the court file will prevent the defendants “from prematurely receiving notice” of the plaintiffs’ investigation “into the operation of their illegal businesses,” it said. The plaintiffs are mindful “of the illicit nature of the counterfeiting business and the ability of counterfeiters to practically eliminate their evidentiary trails” by conducting their business entirely over the internet, it said. They have “good reason to believe” that providing advance notification of their claims would cause the defendants “to hide or transfer their ill-gotten assets, inventory, and related records” beyond the jurisdiction of the court and “thereby thwart” the court’s ability “to grant meaningful relief,” it said. Like many other “famous trademark owners,” the plaintiffs “suffer ongoing daily and sustained violations of their respective trademark rights at the hands of counterfeiters and infringers,” said the complaint. “The exponential growth of counterfeiting” over the internet created an environment that requires companies, such as the plaintiffs, “to expend significant resources across a wide spectrum of efforts in order to protect both consumers and themselves from confusion and the erosion of the goodwill” connected to the Beatles and Yellow Submarine brands, it said.

James Linlor’s claim that McAfee fraudulently transferred the cyberguard.com domain to Musarubra fails and should be dismissed, said McAfee’s motion Tuesday (docket 5:23-cv-00385) in U.S. District Court for Northern California in San Jose. Linlor alleges McAfee cybersquatted on the domain, preventing him from starting a similarly named cybersecurity consultancy. McAfee asserts Linlor is suing the wrong defendant because it transferred the domain to Musarubra in 2021 with the divestiture of its enterprise cybersecurity business. Linlor doesn’t allege “a single element of fraudulent transfer, nor can he,” said McAfee. A fraudulent transfer under the California Uniform Fraudulent Transfer Act (CUFTA) involves a transfer by the debtor of property to a third person undertaken with the intent to prevent a creditor from reaching that interest to satisfy its claim, it said. To establish an actual fraudulent transfer, plaintiffs must plead that a transfer was made with actual intent to hinder, delay or defraud any creditor of the debtor, it said. “Here, McAfee and Musarubra were not debtors or creditors under CUFTA and Linlor can’t plead actual intent to hinder, delay or defraud, it said. McAfee’s periodic renewal of the domain and its eventual transfer of rights to the domain in connection with sale of its enterprise business “does not permit a fraudulent transfer claim,” it said. To hold otherwise would “contravene the general rule” that a property owner may sell all the rights he holds in property, it said.