Challenge to Google Android Trademark At Supreme Court Raises Recusal Issues

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By Tony Dutra

Oct. 16 — A challenger to Google's use of the Android trademark brought his case to the U.S. Supreme Court in an Oct. 6 cert. petition.

Erich Specht founded Android Data Corp. in the 1990s when the dot-com era was at its height, and the Patent and Trademark Office issued a registration in 2002 for the Android Data mark. However, the company ceased operating that same year, and Specht transferred the rights to the mark to another of his wholly-owned companies, Android Dungeon Inc.

The U.S. Court of Appeals for the Seventh Circuit affirmed a grant of summary judgment in Google's favor on claims that its Android operating system for mobile phones infringed the Android Data mark. The court held that the Android Data mark was “permanently abandoned” by 2007 and so it had returned to the public domain before Google began using its own Android mark (Specht v. Google Inc., 747 F.3d 929, 110 U.S.P.Q.2d 1319 (7th Cir. 2014).

Specht's cert. petition challenges events that occurred in the district court litigation. It presents two questions:

1. whether a judge must disqualify himself from a case where he owns stock, and his wife sits on the board of directors, in a company that has a vested interest in the outcome of the case even when the judge refuses to allow that company to become a named party in the lawsuit.

2. whether a district court may properly grant summary judgment on issues bypassed by the parties, by relying on portions of the pleadings not identified by the moving party and resorting to information outside of the record, without first providing the losing (non-moving party) with notice and a reasonable opportunity to respond.

The Seventh Circuit's ruling did not address the qualification of Judge Harry D. Leinenweber of the U.S. District Court for the Northern District of Illinois, who presided over the case.

As to the second question presented, the Seventh Circuit rejected Specht's challenges to evidentiary rulings that the district court made before ruling on Google's summary judgment motion. The rulings related to screenshots of websites and news articles offering evidence as to when the Android Data mark was last used and when Google's Android mark was first used.

Martin J. Murphy of Chicago represents Specht. A response is due Nov. 13. Google was represented by Herbert H. Finn of Greenberg Traurig LLP, Chicago, before the Seventh Circuit.

To contact the reporter on this story: Tony Dutra in Washington at

To contact the editor responsible for this story: Tom P. Taylor at

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