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Tuesday, March 20, 2018

COUNTERFEIT COMMERCE KING BLUE MARBLE PRODUCTS, LLC SETTLES FEDERAL PATENT INFRINGEMENT, UNJUST ENRICHMENT CASE: Orcharddepot.com, International Fruit Genetics, LLC Settle May 2017 Case

MEDIATION LEADS TO OUT-OF-COURT SETTLEMENT! TERMS OF SETTLEMENT TO REMAIN CONFIDENTIAL; U. S. DISTRICT COURT JUDGE TO OVERSEE ENFORCEMENT 

DOCKET WATCH: RESPONSE TO patiobloom.com CASE DUE BY APRIL 30, 2018 

United States District Court Judge Jeffrey S. White of California's Northern District signed an order March 16, 2018 dismissing the case brought in 2017 by International Fruit Genetics, LLC against orcharddepot.com, a now-defunct e-commerce site operated by San Francisco-based Blue Marble Products, LLC,

Although Judge White ordered the case to be dismissed with prejudice, meaning plaintiff International Fruit Genetics, LLC is barred from filing another case based on the same claim, the order enforces a confidential settlement reached via mediation on March 15, 2018.

In its July 12, 2017 motion to dismiss, attorneys for Blue Marble Products, LLC effectively gave away the company's scam, while asserting orcharddepot.com was merely a third-party reseller, not an industry leader “able to get the best wholesale prices and pass those savings onto our customers” as it previously boasted on its 90+ sites.

Although orcharddepot.com purported to be a “third party reseller”, all sites run by Blue Marble Products, LLC “scrape” proprietary data (listing information, pictures, etc.) from Amazon, Amazon Handmade, Etsy and AliExpress. The items are then listed on Blue Marble sites, generally with grossly inflated prices.  

“Defendants do not manufacture, produce, own or store any products that are listed on ORCHARDDEPORT.COM. Instead, Defendants, only after receiving a client’s purchase order related to a product, would purchase the product from the original seller on the source websites and ship the product to the customer.” 

In its May 2017 complaint, International Fruit Genetics alleged:

“Within the last three months, John Doe No. 1 aka NYURKA80 (“Doe No. 1”) has offered for sale and sold grapevine cuttings on Amazon.com with listings entitled “Grape vine cuttings – 5 cuttings – the Moon Drop Grape,” and/or “‘Moon Drop’ 3 vine cuttings for propagation.” 

The listings for these grape cuttings contained a picture of grapes which appear to be the IFG Six varietal. IFG is informed and believes that the cuttings offered and sold by Doe No. 1 were of the IFG Six varietal. Within the last three months, John Doe No. 2 aka GardenSoul (“Doe No. 2”) has offered for sale and sold grapevine cuttings on Amazon.com in a listing entitled “Grape vine cuttings – 5 cuttings - the Moon Drop Grape.” 

IFG is informed and believes that the cuttings offered and sold by Doe No. 2 were of the IFG Six varietal. At the time of filing of this Complaint, the listings posted by Doe. No. 1 and Doe No. 2 offering to sell cuttings of “Moon Drop” grapevines were no longer active on Amazon. However, a listing similar to those appearing on Amazon entitled “’Moon Drop’ grape – 3 vine cuttings for propagation” now appears on the online orchard supply store at the URLhttps://OrchardDepot.com which IFG is informed and believes is operated by Defendant Orcharddepot.com and is owned by Defendants Casey Donahue and Ian Donahue. 

The listing contains a photograph of grapes which appear to be of the IFG Six varietal. IFG is informed and believes that the cuttings being offered and sold as “Moon Drop” grapevines on this website are of the IFG Six varietal.” 

In late December 2017, Blue Marble Products, LLC settled another patent infringement case.

On July 19, 2017, Arizona-based CamCal Enterprises, LLC (doing business as “Bottle Keeper”) filed a patent infringement complaint in U. S. District Court in the Central California District against Blue Marble’s “truehomebliss.com”, alleging patent infringement and seeking unspecified damages. 

In its complaint, Bottle Keeper asserted “truehomebliss.com” had “engaged, and continues to engage, in the business of manufacturing, using, importing, offering for sale, and/or selling bottle enclosures embodying one or more of the patented inventions disclosed and claimed in the '527 patent ("the '527 Patent Infringing Products"). Upon information and belief, the '527 Patent Infringing Products include, without limitation, Defendant's “Outag Bottle Insulator.” 

Bottle Keeper asserted the “continuing infringement has inflicted and, unless restrained by this Court, will continue to inflict great and irreparable harm upon BottleKeeper. BottleKeeper has no adequate remedy at law, and is entitled to preliminary and permanent injunctions enjoining Defendant from engaging in further acts of infringement.” 

Blue Marble ultimately opted not to defend its activity, and the dispute was settled out of court on December 28, 2017. 

In the resulting Consent Judgment, Blue Marble admitted infringing on Bottle Keeper’s patent, and agreed not to contest the “validity of the patent action”. The offending site, “truehomebliss.com”, was subsequently taken offline—although only temporarily, it appears.


NEXT ON THE DOCKET: COUNTERFEIT METAL DETECTOR SCHEME 

Peter Franklin, CEO of San Francisco-based Blue Marble Products, LLC was officially served a summons on February 28, 2018 in a federal copyright infringement case filed in Texas by First Texas Products, LLC, a metal detector manufacturer.
 

Blue Marble, accused in the complaint of “acting in concert” and facilitating the “ongoing and unrestrained commercial importation of Counterfeit Metal Detectors into the United States”, is required to file its response to the complaint by April 30, 2018. 

On February 13, 2018, First Texas was awarded a default judgment against “defendants TheSellingPost.Biz, LLC, Shanghai Tianxun Electronic Equipment Company, Ltd., and Shanghai Zhangdu Electronic Commerce Co., Ltd. d/b/a KingDetector and their agents, employees, and attorneys, and all those persons in active concert or participation with them” which permanently enjoined them “from manufacturing, importing, purchasing, distributing, selling, or offering for sale any counterfeit metal detectors, including the Bounty Hunter® line of products designed and manufactured by the Plaintiff, as well as any associated and related products and literature.” 

Each defendant, TheSellingPost.Biz, LLC, Shanghai Tianxun Electronic Equipment Company, Ltd., and Shanghai Zhangdu Electronic Commerce Co., Ltd. (d/b/a KingDetector) was ordered to pay First Texas Products, L.L.C. “in the amount of $50,000 for violations of Section 43(a) of the Lanham Act”, the statute covering false designation of origin, false or misleading description of fact, or false or misleading representation of fact.

However, as recently as March 11, 2018, nearly two weeks after being served the First Texas complaint on February 28, Blue Marble was still offering King Detector counterfeit Chinese metal detectors on patiobloom.com:



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