Footwear manufacturer Pony is suing much larger (and presumably richer) foe Nike (NYSE: NKE). Pony contends that Nike has infringed on its "iconic logo" (look familiar?) in Nike's new "V for Victory" soccer advertising campaign.

Pony contends that the chevron seen on the player's chests is far too close to its chevron-based logo, which the company has used for 35 years.

Pony stated, "The key distinguishing feature of the [Nike] campaign is the use of a chevron mark, which is identical or virtually identical to the registered trademarks owned by Pony."

Does Pony have a point? Yes, but I have some problems I feel I should address here. First, I am no legal or design expert, but isn't Pony's original chevron logo a bit similar to Nike's iconic swoosh?

If the current rash of courtroom events surrounding Victoria's Secret is what CEO Sharen Turney had in mind when she indicated that the company might have become "too sexy", I think there may be trouble in store for that flagship name of Limited Brands Inc. (NYSE: LTD). I don't know about you, but I find courtroom litigation anything but sexy. Unless of course, we're talking about the assistant district attorneys they cast for Law and Order.

First, Victoria's Secret pulled an 'Atomic Wedgie" on Kentucky couple, Victor and Cathy Moseley, by gaining a court order to block the couple from using a truncated version of The Victoria's Secret name. It's no big deal really because it was fairly obvious that the names "Victor's Secret" and "Victor's Little Secret" were pretty flagrant abuses of a trademarked name which deserves secure protection. The one little triumph which came out of that decade-long legal tussle was that the court determined that plaintiffs in trademark infringement cases do not need to show that the infringement actually cost them money, as revealed in a decidedly not sexy Associated Press news blurb.

Next, we find out that Juicy Couture has grabbed Victoria's Secret by the seat of the pants, regarding alleged product marketing infringement. It seems that Juicy thinks that Vicky has infringed on various aspects of packaging, color schemes and logo placement, as explained by blogger Bruce Watson. Personally, I haven't analyzed the claimed offenses. I'll leave that to the courts. I do however find the whole thing to be a bit blown out of proportion -- and very un-sexy.

In what may end up being a net positive for eBay, albeit possibly an expensive one, a settlement has been reached in the litigation over patent infringement between eBay Inc. (NASDAQ: EBAY) and MercExchange. Financial figures of the settlement have not been disclosed, but a report from Computerworld indicates that eBay shall purchase the three patents which were the subject of the litigation, as well as a number of other related technologies and developments.

Mike Jacobson, eBay senior vice president and general counsel, was quoted by Computerworld as stating: "In addition to resolving the litigation, this settlement gives us access to additional intellectual property that will help improve and further secure our marketplaces." MercExchange founder and CEO Thomas Woolston, is quoted in the same report as stating: "It seemed like the right time to put it behind us."

In May of 2003, a jury in the case found eBay guilty of patent infringement and an injunction was sought and granted. However, in reviewing the US Court of Appeals decision, the Supreme Court unanimously derailed the long standing practice of issuing immediate injunctions in cases of intellectual property infringement, insisting that in the future, such injunctions must meet the requirements of a four-factor test.

Texas must hate successful internet giants. At least, that is what one must think after two sets of goofy, litigious lawsuits were brought against Google, Inc. (NASDAQ: GOOG), Yahoo!, Inc. (NASDAQ: YHOO) and Microsoft Corporation (NASDAQ: MSFT) in the last two months. On top of the Polaris lawsuit from a few months ago that accused the internet giants of violating its email filtering patent, Performance Pricing, Inc. (from Austin, Texas) now says that the three internet giants, along with AOL, LLC (part of Time Warner, Inc. (NYSE: TWX)) have violated patents related to -- get this -- a "transaction system."

Apparently some smaller firms have made it a point to make money not with innovation and marketing, but from trying to patent basic business practices and processes. This time around, these four companies have been charged with using Performance Pricing's technology "in methods and systems that they make, use, sell and offer to sell."

Is having a website that transacts business with customers a process that is patentable? I'm waiting for Performance Pricing to sue the other hundred million website operators who transact business with customers. Excuse me while I twiddle my thumbs here.

Is this "technology" even patentable? My guess is that the U.S. patent in question, 6,978,253, described as "Systems and Methods for Transacting Business Over a Global Communications Network such as the Internet" will be laughed out of court once it reaches that stage. Performance Pricing has requested a jury trial.

Monday August 13

• Sysco Corporation (NYSE: SYY) to report Q4 earnings; conference call at 9:45am.
• PDUFA date for Indevus Pharmaceuticals Inc's (NASDAQ: IDEV) Sanctura XR, an overactive bladder drug.

Tuesday August 14

• The Home Depot Inc (NYSE: HD) to report Q2 earnings; conference call at 9am. Home Depot is expected to post substantial Q2 revenue/EPS declines, but equally important will be the company's comments: with the housing sector expected to remain sluggish through at least late 2007, analysts will evaluate whether HD can overcome that headwind with a new focus on customer service, demographic trends that suggest increased home repair/remodeling, and 20-year high homeownership rates that suggest steady house goods demand.
• District Court California: Broadcom Corporation (NASDAQ: BRCM) to request an injunction related to Qualcom Incorporated's (Nasdaq: QCOM) infringement of 3 Broadcom cellular baseband patents.

Wednesday August 15

• Macy's Inc (NYSE: M) to report Q2 earnings; conference call at 10:30am.
• PDUFA date for GPC Biotech's (NASDAQ: GPCB) Satraplatin for treatment of hormone refractory prostate cancer.

Thursday August 16

• JC Penney Co Inc (NYSE: JCP) to report Q2 earnings; conference call at 9:30am.
• Hewlett Packard Company (NYSE: HPQ) to report Q3 earnings; conference call at 5pm. Analysts will evaluate HPQ's ability to maintain momentum in its innovative imaging/printing group, which is expected to help HPQ post solid Q3 revenue gains.

Friday August 17

• Quantum Corporation (NYSE: QTM) to hold annual shareholder meeting at 12pm.
• PDUFA Date for Endo Pharmaceuticals Holdings Inc's (NASDAQ: ENDP) and Vernalis PLC's (OTC: VNLSY) Frova, for menstrually-related migraine headaches.

According to a Dow Jones report yesterday, the decisions to three pending Star Scientific, Inc. (NASDAQ: STSI) summary-judgment motions in the company's patent-infringement lawsuit against Reynolds American Inc's (NYSE: RAI) R.J. Reynolds Tobacco Co. will be available on tomorrow.

The patent-infringement suit has been ongoing since 2001, when Star Scientific filed against Reynolds, alleging that Reynolds had violated the company's process to reduce the level of nitrosamines - a carcinogenic toxin - in tobacco.

Star Scientific's stock rose from $3.39 to $4.40 yesterday on the news the decisions had been reached, and could rise again significantly should those decisions go its way. Additionally, if Reynolds is ordered to pay a significant enough sum, the tobacco giant may decide to simply buy out Star Scientific rather than pay a hefty patent-infringement fine.

eBay shares are likely to get a lift today from hopes that its new eBay Express offering will bring new customers into the fold.

The stock traded up in pre-market trading and opened at $35.11 on the Nasdaq, up from yesterday's close of $34.93.

In legal news this morning:

• eBay settles claims of improper billing practices. The claim was tied to eBay introducing new billing software in 2004.
• eBay said it expects a patent infringement case to be decided by the second quarter.

 

David Colvin, who founded Michigan's z4 Technologies, succeeded in convincing a Texas jury that Microsoft Corp. and Autodesk Inc. infringed on his rights for two of his anti-piracy-software patents. The jury ordered Microsoft to pay $115 million and Autodesk to pay $18 million. 

Microsoft spokesman Jack Evans told Associated Press that Microsoft continues to contend that it "developed its own product-activation technologies well before z4 Technologies filed for its patent" -- a common refrain for Microsoft when other patent infringement cases have been filed in the past.  Obviously the jury didn't buy that argument this time.

The court has not yet ruled on Microsoft's contention that z4 Technologies knowingly withheld information from the U.S. Patent and Trademark office about other companies' product-activation technologies when it submitted its patent applications.  Microsoft will not make any decisions about how to respond to the verdict until all issues are resolved.

Burst.com is coming off a win against Microsoft, which settled a patent infringement case the little company brought for $60 million. Next on the David vs. Goliath fight tickets is Apple. 

Since late 2005, Apple and Burst.com have been trading barbs. Thus far, Apple has filed a legal action to have Burst's video and audio delivery software patents declared invalid. Burst's response is the announcement today that it has filed conterclaims against Apple of infringing on four of Burst's patents.

Burst's counter claims are against Apple's iTunes Music Store, iTunes software, the iPods, and QuickTime Streaming products. Pretty much Apple's entire video/music line.  It's going to be an interesting case to watch, and might cause the same level of stir that RIM recently faced.  Burst founder Richard Lang seems like he's got the determination and grit to sink in and really pursue this.