January 2021

First-Ever Patent Jury Trial Takes Place on Zoom

Takeaway: Jury Trials hosted on Zoom are becoming more common due to COVID.

While state courts around the country have held jury trials over Zoom during the pandemic, the first-ever patent jury trial will be conducted remotely this month via Zoom due to COVID-19 safety and health concerns. The case is against Valve Corp. over video game controllers. The trial involving the issue of patented video game controllers began as attorneys for both sides questioned potential jurors about their gaming habits.

The 27 potential jurors appeared via webcam from their homes around the Seattle area before Judge Thomas Zilly of the Western District of Washington, while attorneys for Valve and plaintiff Ironburg Inventions Ltd. appeared remotely from their own hometowns.

The participants could see each other, but only an audio feed was available to the public. Judge Zilly said sometimes jurors would be placed in a separate Zoom room when the parties needed to speak privately with him or their clients. Additionally, in another unusual aspect of a remote trial, each of the jurors will be sent one of the controllers at issue via overnight delivery to have during witness testimony.

The COVID-19 pandemic has changed how we operate as a society in many ways including the justice system.


FedEx Files New Trademark for Slogan

Takeaway: FedEx applied to trademark new phrase, “FedEx. Where Now Meets Next,” in light of its role in distributing COVID-19 vaccines.

FedEx is coining a new slogan for a fresh and modern look. The new global FedEx is “FedEx. Where now meets next.” FedEx has since filed a trademark for this phrase as well as released a commercial using it. FedEx’s hope is to become more intellectually guided and give businesses additional insight on near-real time shipment tracking analysis by collaborating with Microsoft.

Just last September, FedEx announced the launch of SenseAwareID, a sensor-based logistics device that plays a role in the distribution of vaccines. Last month, the company shipped its first wave of COVID-19 vaccines, with temperature-controlled solutions, near real-time monitoring capabilities, and a healthcare team to support the express transportation of vaccines and bioscience shipments. FedEx has a long history of supporting relief efforts, using its technology, expertise, and network to deliver for good.

Picture Credit: bizjournals.com/memphis/news/2021/01/25/fedex-introduces-new-global-tag-line.html


Trademark Infringement Against Landlord for Allowing the Sale of Counterfeit Watches

Takeaway: If you are a landlord and are aware of counterfeiting activities taking place on your property, you should take affirmative steps to stop it; otherwise, a court may find you secondarily liable for trademark infringement.

Recently, the Second Circuit Court of Appeals affirmed a portion of a counterfeiting verdict ruling against a landlord that took “insufficient steps to root out the counterfeiting it knew or should have known was occurring.”

A district court jury in the Southern District of New York had previously awarded Omega, the watchmaker, $1.1 million in damages for counterfeiting against a landlord for the entity that were themselves the ones actually selling the counterfeit products. The Second Circuit found that where the landlord had sufficient indication that there were sales of counterfeit items on the property, it could not avoid liability for trademark infringement by simply ignoring the issue all together.

While this decision may appear to be promising for rights owners that are victims of counterfeiting against potentially “fly-by-night” counterfeiters, the unique “facts” in this case show that landlord was not oblivious to previous counterfeiting issues on the property, and the landlord apparently failed to monitor for counterfeiting activity as it may have been required to do under a previous consent injunction.

New Library of Congress Copyright Claims Board (CCB)

Takeaway: The new CCB may open up small businesses to face copyright infringement actions.

The Copyright Claims Board, or CCB, is a small claims solution administered by the Library of Congress for resolving copyright infringement cases. The CCB, present in the Copyright Office, will hear cases capping at $30,000 in damages and provides an “opt-out” option for respondents. This small claims court also includes streamlined procedures that limit discovery (often the most expensive part of litigation) and allow claims by both copyright owners and users. Additional fees to use the CCB will be incurred if used for improper purposes or in bad faith.

The use of the CCB may result in additional claims against small business owners with website content. To limit liability for copyright infringement, small business owners can audit their own web content, replace any content that appears to have been authored elsewhere, and register their own website for copyright protection. These approaches may help limit vulnerabilities for plagiarism and copyright infringement complainants.

Cislo & Thomas LLP Client Dr. Sabine Hazan Filed for Patents in Defenses and Treatment Against COVID-19

Cislo & Thomas LLP client Dr. Sabine Hazan, CEO of Progenabiome and Ventura County-based gastroenterologist, has been dedicated to fighting COVID-19 throughout the pandemic. Her team is leading three FDA-approved clinical trials for the prevention and treatment of COVID-19 through combination therapies.

Through their study exploring the role of the gut flora in COVID-19, they became the first lab worldwide to detect SARS-CoV-2 from Patient Fecal Samples by Whole Genome Sequencing. Their insight was published on Research Gate.

With these findings and extensive knowledge on the Microbiome and disease, Dr. Hazan and her partner at Topelia Therapeutics, Dr. Thomas Borody, developed what she feels is the best first line of defense against COVID-19, a combination of natural vitamins: Biome Boosters, available at https://biomeboosters.com/. Its proceeds support research via the Microbiome Research Foundation.


Cislo & Thomas LLP Spotlight

Super Lawyers Selected in 2021

Congratulations to Daniel M. Cislo and Mark Nielsen for their inclusion in the Super Lawyers 2021 Southern California Annual List, as published in this month’s Super Lawyers Magazine.

Super Lawyers is a rating service of outstanding lawyers who have attained a high-degree of peer recognition and professional achievement. Daniel and Mark have earned their recognition specifically in the intellectual property and intellectual property litigation practice fields.


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