Photo of Janet M. Howe

In the early 2000s, New York City experienced a surging bedbug epidemic. In response, the company FabriClear created a spray to treat bedbug infestations, which it called “FabriClear” (“the FabriClear Product”). In 2013, FabriClear approached Harvest Direct, a company that markets and sells “As Seen on TV” products, to discuss bringing the FabriClear Product to market. The two companies executed a confidentiality agreement, which specified that Harvest Direct could not reproduce, use, alter, or modify the FabriClear Product formula without FabriClear’s written permission. The parties later negotiated a licensing agreement, giving Harvest Direct the right to the exclusive license to market and sell the FabriClear Product and to use FabriClear’s “trademarks, trade names, copyrights, trade secrets, technical data, information, know-how, formulas, and other intellectual property rights.” The FabriClear Product sold very well for approximately five years, but toward the end of 2018, sales started to decline. It turned out that Harvest Direct had started marketing its own competing bedbug product (the “X-Out Product”). Harvest Direct started working on its product in 2015, and its product was indistinguishable from the FabriClear Product, including very similar packaging. Indeed, there was evidence presented that, at some point, Harvest Direct just repackaged existing bottles of the FabriClear Product. One of the bottles investigated by the FBI revealed a FabriClear Product label under the X-Out Product label. FabriClear then filed suit against Harvest Direct for misappropriation of trade secrets, among other claims.
Continue Reading Battling Bedbugs: Massachusetts District Court Allows Case Against Distributor that Created a Competing Product to Move Forward

Photo of Margo Casselman

Acer has petitioned to the U.S. Supreme Court after the Federal Circuit rejected its attempt to remove a case from state to federal court based on two federal statutes and Gunn v. Minton, 568 U.S. 251 (2013).

The underlying dispute is between Acer America Corporation and Acer Inc. (collectively, “Acer”), on one side, and Intellisoft, Ltd., and its president, Bruce Bierman (collectively, “Intellisoft”), on the other. Intellisoft sued Acer in California state court in 2014, alleging that Acer violated a nondisclosure agreement by using Intellisoft’s trade secret information in Acer’s applications for a group of related patents. Intellisoft brought various state-law claims, including a claim for trade secret misappropriation.
Continue Reading Acer Seeks Supreme Court Intervention After Federal Circuit Tossed Its Patent-Related Dispute from Federal Court

Photo of John Gray

The U.S. Supreme Court’s June 24 decision in Food Marketing Institute v. Argus Leader alters 40 years of Freedom of Information Act law governing the withholding of documents the government receives from outside sources (including businesses). Instead of showing that the company submitting the information must suffer “competitive harm” from its release, commercial information received