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By Tony Dutra
Dec. 1 — A petition for writ of certiorari challenging Google's use of the Android trademark was denied by the U.S. Supreme Court Dec. 1.
The U.S. Court of Appeals for the Seventh Circuit affirmed a grant of summary judgment in Google's favor, ruling that Erich Specht, who founded Android Data Corp. in the 1990s, had “permanently abandoned” his mark by 2007. Therefore, the mark had returned to the public domain before Google began using its own Android mark, the appeals court said (Specht v. Google Inc., 747 F.3d 929, 110 U.S.P.Q.2d 1319 (7th Cir. 2014).
Specht's petition challenged events that occurred in the district court litigation. It presented 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 appeals court 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 represented Specht. Google, represented by Herbert H. Finn of Greenberg Traurig LLP, Chicago, waived its right to respond in opposition.
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Full text of the petition at http://pub.bna.com/ptcj/140427petition.pdf.
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