Red Hat and Novell Sued for Patent Infringement

    Suddenly, all the discussions about the discordance between open-source software and Patent Law became a lot less abstract.

    According to foreign media reports, last Tuesday, Red Hat and Novell, as two leading Linux distributors, were sued by IP Innovation and Technology Licensing Corporation in the U.S. District Court for the Eastern District of Texas. The plaintiffs alleged that the software products of the defendants had infringed U.S. Patent No. 5072412 for a User Interface with Multiple Workspaces for Sharing Display System Objects, along with two other patents. They sought damages and a permanent injunction prohibiting any further infringement.

    Last Friday Red Hat spokeswoman Leigh said only that the company is aware of the suit and "will estimate the situation." Novell spokesman Bruce Lowry said the company is assessing the suit and that "it's too early to tell, tactically, whether it is possible for us and Red Hat to join forces."

    Acacia Technologies, the parent company of IP Innovation, has licensed patents to many companies including Dell, HP, Intel, Samsung, Exxon, J.C. Penney, Disney, GE and 3M. Buying a license to a patent is often the quickest way to settle such lawsuits, and companies often do so because it can be cheaper than a multimillion-dollar, drawn-out suit that occupies many employees' hours. But licensing a patent isn't such a simple matter when it comes to open-source software.For example, a company that distributes the Linux kernel under the General Public License (GPL) isn't permitted to do so if it doesn't grant all recipients of the software the rights it has.

    Generally speaking, patent system is in conflict with the open-source software. The former grants a limited-term monopoly to an inventor, while the latter involves unencumbered sharing of the technology. One obvious aggressor is Microsoft. Chief Executive Steve Ballmer declared in May that Linux and other open-source projects infringe 235 Microsoft patents. In another speech this week in England, Ballmer said more recently, "Those who use Red Hat, at least with respect to our intellectual property, in a sense have an obligation to eventually to compensate us."

An insider predicted the suit would be a fitting sequel to the cases of the SCO Group v. IBM, Novell and others.

Heelys sues Wal-Mart over Patent

    Wal-Mart Stores Inc., the world's largest retailer, has been sued by wheeled-footwear maker Heelys Inc. for making knockoff skates that Heelys claims violating its patent.

    Heelys' shoes, which cost about $60 a pair, come with a removable wheel in the sole, allowing wearers to move from walking or running to skating by shifting weight to their heels.

    Wal-Mart sells a knockoff model called Spinners that violates Heelys patent on a "multi-wheel heeling apparatus," Heelys brought a suit before Dallas federal court on October 5, 2007.

    In the indictment, Heelys said "Wal-Mart's infringing action has caused irreparable harm" without "adequate remedy".

    October 12, 2007                                        Source: Denver Post

MONTAGUT Engages in Trademark Lawsuit in Shanghai

---Suing “France Mengtejiao Laundry Group” and “Shanghai Mengtejiao” for 500,000 RMB yuan in damages

    France Montagut Company engages in lawsuit again for trademark infringement and unfair competition in Shanghai. Recently, Bonneterie Cevenole S．A．R．L．(i.e. France Montagut Company) raised an action against Hong Kong-registered France Mengtejiao (note: identical with the Chinese translation of Montagut) Laundry International Group Co., Ltd and Shanghai Mengtejiao Investment Management Co.,Ltd at Shanghai No. 2 Intermediate Court, seeking injunction and 500,000 RMB yuan in damages. The indicting reasons were still trademark infringement and unfair competition.

    “Without permission, Shanghai Mengtejiao Company illegally used the Mengtejiao trademark and the flower logo, as well as the words of “Mengtejiao dry-clean”, on its website, advertising and plaques in its laundry outlets. This constitutes infringement to the well-known trademark right of France Montagut Company.” France Montagut Company believed: “the defendant Mengtejiao Laundry Group, associated with Shanghai Mengjiao Company, uses the word ‘Mengtejiao’ in its trade name and uses words such as ‘France Mengtejiao Laundry International Group Co., Ltd’ and ‘Laudry Franchise Originated from France. These words are shown on the Shanghai Company’s website and the plaques in its laundry outlets. such misleading advertising constitutes unfair competition with respect to the plaintiff”.

    The plaintiff, Bonneterie Cevenole S．A．R．L．also claimed that it was registered in France in 1956 and has registered 31 trademarks in the Chinese Trademark Office including “Mengtejiao”, “MONTAGUT” and the flower logo, so it was the owner of these trademarks. These trademarks, after such a long time of advertising and use in China, have already gained very high reputation and become well-known trademarks. In March 2006, Beijing Higher People’s Court concluded that the trademarks of the plaintiff were well-known trademarks. On April 26, 2006, Changsha Intermediate People’s Court also determined the trademarks of the plaintiff as well-known trademarks in its civil decision.

    Previously, the No. 2 Intermediate People’s Court of Shanghai Municipality has trialed a case of France Montagut Company v. Mengtejiao Meizheng (HK) Garment Co., Ltd. and domestic companies and individuals relevant to the Hong Kong company. This case ended up with the failure of Mengtejiao Meizheng (HK) Garment Co., Ltd.

    This time, France Montagut Company sued to the court seeking injunction and 500,000 RMB yuan for economic loss. It is worth to note that, in this case, according to the material provided by the France Montagut Company, the legal representative of Shanghai Mengtejiao Company and the director of Mengtejiao Laundry Group are the same person, and the defendant Mengtejiao Laudry Group was registered in Hong Kong district.

    October 16, 2007                                                        Source: NBD.COM.CN

Lawyer Applying for Trademark “A World for All” Is Rejected

    In the name of individual, a lawyer, Xie Yanyi, had applied for registering a service mark “A World for All”, but the application was rejected by the State Trademark Office. As a result, Xie raised an action to a court. Yesterday, this case was accepted by Beijing No.1 Intermediate Court.

    Xie claimed that, on May 17, he applied to the State Trademark Office for registering a trademark “A World for All” in his own name; on May 31, the State Trademark Office issued a notification claiming that the case was rejected because Xie could not provide supportive documents to prove that he was qualified as the subject engaged in service.

     The State Trademark Office has issued Instructions of Natural Persons Applying for Trademark Registration this year. It prescribes that when natural persons apply for trademark registrations, they should file copy of licenses for private industrialists and businessmen or other certificates from their institutions; otherwise, the applications would be rejected.

     Xie Yanyi stated in the indictment that the Chinese Trademark Law prescribed that those who may apply for trademark registration include natural persons, legal persons and other organizations. It was not consistent with the Trademark Law that the State Trademark Office rules that “individuals cannot apply for trademark in their own names”.

    Xie requested the No.1 Intermediate Court to judge that the State Trademark Office should accept his application.

    October 16, 2007                                                            Source: Beijing News

214 Facial Make-ups Downloaded as MMS, Painter Claims for 300,000 RMB yuan in Damages

    Mr. Zhao is a painter of facial make-ups in Beijing Opera. His works have been used as content of MMS (Multimedia Message Service) by a communication company in Beijing, so he sued this company seeking a public apology in newspaper and 300,000 RMB yuan for economic losses as well as 1000 RMB yuan for reasonable expense. Recently, Beijing People’s Court of Fengtai District accepted this case.

     The plaintiff claimed that he had published his work TheFacial Make-ups in Beijing Opera in 1992.The book contained 272 facial make-ups and 21 opera figure paintings, all of which were composed by himself and had high authority in the field. Currently, Zhao found that 214 of his paintings, such as that of the Monkey King, from the book had been treated as MMS content for download at a price of 1 yuan per painting on the website of a Beijing communication company, without indicating the composer. Till Mr. Zhao filed the lawsuit, the communication company still had not contacted with him or the publishing company of Facial Make-ups in Beijing Opera, nor had it paid any rewards yet.

     Zhao believed that the communication company’s act infringed his authorship right, copy right, information network transmission right and remuneration right, that the company acquired illegal interests directly from the infringement act, and that the infringement was mean in quality, wide in range and severe in consequence. Thus, in order to protect his legal interest as a copyright owner, Mr. Zhao asked the court to support his requirement.

    The case is pending for further hearing.