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17-12166 - Global Strategies, Inc. v. Interbulk USA, LLC


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17-12166 - Global Strategies, Inc. v. Interbulk USA, LLC
January 12, 2018
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Judge Richard G. Stearns: ORDER entered denying 6 Motion for Preliminary Injunction; finding as moot 24 Motion for Leave to File Document. Plaintiff Global Strategies manufactures and sells patented heavy duty construction bags under the Demo Bag brand. Global Strategies alleges that defendant Interbulk, in selling its Ox Demolition Clean Up Bag, infringes both Global Strategies' patent and trademark. Global Strategies seeks a preliminary injunction to block the marketing and sales of OX Bags. Of the four factors framework for determining the propriety of preliminary injunctive relief, the likelihood of success is the "main bearing wall." Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 16 (1st Cir. 1996) (the remaining three factors are: the potential for irreparable harm, the balance of the hardships, and potential effect on public interest). In order to demonstrate a likelihood of success on the merits [on its patent claim], [Global Strategies] must show that, in light of the presumptions and burdens that will inhere at trial on the merits, (1) [Global Strategies] will likely prove that [Interbulk] infringes [its] patent, and (2) [Global Strategies]'s infringement claim will likely withstand [Interbulk]'s challenges to the validity and enforceability of the [] patent.... If [Interbulk] raises a substantial question concerning either infringement or validity, i.e., asserts an infringement or invalidity defense that the patentee cannot prove "lacks substantial merit," the preliminary injunction should not issue. Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1350-1351 (Fed. Cir. 2001). In light of the present record, the court agrees with Interbulk that it has "raise[d] a substantial question concerning... [the] validity" of Global Strategies" asserted claims. The application for U.S. Patent #7,510,327 (the '327 patent) was filed on March 14, 2015, and the patent issued on March 31, 2009. Claim 1 of the '327 patent recites An ultra strong, tear-resistant, puncture-resistant bag having a high tear strength, comprising: a ribbon-woven bag having crossed woven ribbons of flat polypropylene sheet devoid of low melting temperature bonding layers between the crossed ribbons, said bag formed in a cylinder and stitched at one end to complete the bag, wherein the stitch count for said bag is 100 per inch.A patent claim is invalid if the invention "was... in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States." 35 U.S.C. ยง102(b) (pre-AIA). Interbulk's exhibits demonstrate that, in 2003 and 2004 (more than a year before the '327 patent's 2005 filing date), Interbulk sold cylindrical polypropylene ribbon-woven bags with a 100 stitch count. See Def.'s Exs. A-D. Interbulk also notes that the asserted claims were rejected over various prior art references during their prosecution, and argue that the combination of prior art and common sense would render the claims obvious. (The court agrees with Interbulk that asserted claim 17, disclosing a method for using the bag for claim 1 to remove sharp-edged refuse, is likely a common-sense application of the bag.)Interbulk also raises a substantial challenge to the validity of the Global Strategies' Demo Bag mark on the ground that the mark is generic. See Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985) ("Marks that constitute a common descriptive name are referred to as generic. A generic term is one that refers to the genus of which the particular product is a species.... Generic terms are not registrable, and a registered mark may be canceled at any time on the grounds that it has become generic."). Demo Bag is an abbreviation for the term "demolition bag," and the '327 patent makes clear that the purpose of the invention is to contain and remove demolition refuse. Rather than utilizing non-throwaway barrels and rather than utilizing film bags, in the subject invention a high strength bag suitable for carting away demolition products such as bricks, wood, nails, and glass is comprised of a woven ribbon structure in which the woven material, rather than being a cord or strand, is a ribbon of polypropylene.'327 patent col. 1, ll. 53-58 (emphasis added). Finally, the court notes that Global Strategies has not offered strong evidence of the likelihood of consumer confusion. See Pignons S.A. de Mecanique de Precision v. Polaroid Corp., 657 F.2d 482, 487 (1st Cir. 1981) (setting out the factors for assessing likelihood of confusion). There is no substantial similarity between the companies' marks in the contexts in which they are displayed. To the extent that Interbulk uses the term "demo bag," it appears to be an abbreviation for "demolition clean up bag" in conjunction with the OX mark. The dominant OX mark (featuring the word in large two-tone letters and a silhouette of a bull) is visually distinct from Global Strategies' triangular logo featuring a muscular forearm. Because it has not demonstrated a substantial likelihood of success on the merits, Global Strategies' motion for a preliminary injunction will be DENIED. The parties are to submit a joint proposed pretrial schedule consistent with the attached initial case management order. (Attachments: # (1) Standing Order Re Courtsey Copies, # (2) Standing Order re Default PO, # (3) Standing Order re Related Actions) (RGS, int2)