Priceline Throws A Fit And Sues USPTO For Not Granting Them Booking.com Trademark

from the generically-speaking dept

The Priceline Group has something of a history with intellectual property. Several years back, Jay Walker, Priceline's founder, appeared to have transitioned to becoming a full-blown patent troll. In the year's since, the company he once founded has been in something of a tussle with the USPTO over its attempt to register a trademark for "booking.com." The USPTO had initially approved of the mark, before reversing its own decision only weeks later due to "booking.com" being essentially descriptive. The Priceline Group appealed, but the appeals board upheld the rejection of the mark, affirming it as being descriptive.

You might have thought that this would be the end of the story. It's not. Priceline Group has now sued the USPTO over its rejection.

Given that Booking.com filed the trademark application as a “travel agency service,” Booking.com’s lawsuit, filed April 15 in federal court in Alexandria, Virginia, states “there is no evidence in the entire history of Booking.com’s use of its trademark that any consumers or users of travel agency services refer to such sites as ‘Booking.com’s.'”

A Booking.com-commissioned survey found that 75 percent of its users “recognize BOOKING.COM as a trademark, not a common name,” the suit states.

The commissioned survey, as you'd expect, concludes exactly what Priceline Group wants it to conclude. Still, that doesn't particularly change the nature or reasoning behind the USPTO's rejection. If I want to go about booking a hotel, "booking.com" is descriptive of the service that is being offered at the site. I'm struggling to see exactly what the argument from Priceline Group actually is here, because this one seems fairly easy to grasp.

The crux of this flailing by the company appears to be how much money its invested in transitioning its brand from Priceline to Booking.com.

Booking.com stated that it has invested enormous resources in advertising, for example, to spread its brand, which it has used since 2006. The Amsterdam-based Booking.com also stated that it has used the similar mark, Booking.NL, since 1997. Booking.com further chided the appeals panel for finding that BOOKING.COM had not become a distinctive brand among consumers. Booking.com’s lawsuit states that more than 2 million U.S. consumers signed up for its newsletter; it has more than 2.7 million Facebook “likes,” and almost “58,000 members of the relevant public were already ‘talking about’ Plaintiff’s brand on Facebook.com, higher than other accommodations and travel companies such as TRAVELOCITY, HOTELS.COM, TRAVELZOO AND ORBITZ.”

Much of which appears to demonstrate just how little the company relies on "booking.com" being a registered trademark in the first place. After all, it appears to be doing quite well in terms of reputation and traffic. And still none of this translates into an argument that the term "booking" isn't descriptive. I'm not sure why the company is spending so much time in the courts with this lawsuit rather than simply continuing the rack up the fees its business is generating.

Filed Under: trademark, uspto
Companies: booking.com, priceline

Patent Troll Sues Everyone For Infringing On Encryption-Related Patent By Encrypting Their Websites

from the um,-we-actually-offer-no-encryption-services-of-our-own.-sorry. dept

Underdog Texas company takes on corporate giants!

Scores of big brands – from AT&T and Yahoo! to Netflix, GoPro and Macy's – are being sued because their HTTPS websites allegedly infringe an encryption patent.

It appears in May this year CryptoPeak Solutions, based in Longview, Texas, got its hands on US Patent 6,202,150, which describes "auto-escrowable and auto-certifiable cryptosystems."

CryptoPeak reckons TLS-secured websites that use elliptic curve cryptography are infringing the patent – so it's suing owners of HTTPS websites that use ECC. Top tip: loads of websites use ECC these days to securely encrypt their traffic.

CryptoPeak, of course, offers no cryptography products. It does, however, manage a portfolio of 66 lawsuits, all filed in the Texas Eastern District Court, beginning roughly 60 days after it acquired the patent. Among the illustrious names listed as defendants are PNC Financial Services, VUDU, Netflix, State Farm, Allstate, Petco, GoPro, Mary Kay, Target, Groupon, Williams-Sonoma, Etsy, Priceline… well, the list goes on and on and on.

All of these companies produce goods and services. CryptoPeak does not. The only thing it produces are lawsuits. The patent it's using in its litigation doesn't appear to actually cover the allegedly infringing activity it's suing over.

Perhaps crucially, [the patent] describes a means for "generating public keys" and "publishing public keys", and it's certainly true that ECC does involve generating public keys and using them.

But the patent is focused on "a key recovery agent to recover the user's private key or information encrypted under said user's corresponding public key" – which is really not the point of ECC.

Netflix, which has already moved to dismiss the suit against it, doesn't concern itself too much with the patent's supposed function. Instead, it argues the patent (along with the numerous lawsuits) should be invalidated/tossed because of other wording used in the patent paperwork itself.

The invalidity of the claims asserted here is cut and dry. The Asserted Claims recite “a method and apparatus.” Thus, a practitioner cannot know the scope of the Asserted Claims from reading them because they explicitly claim “separate statutory classes of invention,” an act expressly forbidden by the law. For this reason alone, these claims are invalid on their face, and the Court should declare so at this stage.

Netflix then points out the "method and apparatus" wording appears in multiple claims.


All of which should serve to kill the lawsuit and, possibly the patent, no matter how much the troll protests.

The defect in these claims is so glaring that CryptoPeak’s only choice is to request that the Court overlook the express words of the claims, construe the claims to read out certain language, or even correct the claims. CryptoPeak has done just that in its Amended Complaint, alleging that “[n]othwithstanding that [the claims] generically recite the existence of ‘apparatus’ in their preambles, each of the . . . Asserted Claims is a method claim . . . .” (Dkt. No. 21 at 4 (emphasis added).)

This request is improper and should be rejected. The Court must read the claims as written, “not as the patentees wish they [ ] were written.”

Seems like a solid argument, but CryptoPeak didn't file in this particular court just because it coincidentally happened to have rented a mailbox and an empty office in Longview, Texas shortly before filing the lawsuits. It filed in this court because magical things often happen for patent trolls -- wholly unrelated to the validity of their claims and their affected Texan accents. If this wasn't the case, then this particular district wouldn't be the IP shitmagnet that it is. If CryptoPeak can nail down a few settlements and licensing agreements, it makes the hassle and expense of serial filing worthwhile. And isn't that why our patent system was implemented in the first place?

Filed Under: encryption, https, patent troll, patents
Companies: at&t, cryptopeak solutions, etsy, gopro, groupon, macy's, netflix, petco, priceline, target, yahoo

Priceline Founder Jay Walker Becoming Full On Patent Troll: Sues Facebook For Friending And The Powerball Lottery For Lotteries

from the this-is-not-innovation dept

All the way back in 1999, we were already pointing out how Priceline's Jay Walker was a lot more focused on locking up various ideas via patents than actually building sustainable businesses. Even at the time, "Priceline" was an aggressive patent defender and was really an offshoot of Walker Digital, the firm he set up to hoard patents and to extract money out of actual innovators. Over the years, we've noted the various ridiculous patents he's received. It's also worth noting that Priceline pretty near tanked under his leadership -- once again highlighting the vast difference between idea and execution.

Joe Mullin has an article highlighting how Walker is now suing Facebook for violating a patent he got back in 1999 (5,884,27) for "establishing and maintaining user-controlled anonymous communications." According to Walker, the very basic "friending" feature on Facebook violates this patent. That claim, alone, pretty much highlights what's wrong with the patent system. The process of setting up such a system is not at all complicated, and thousands of programmers could come up with a similar system in a very short period of time. Note that Walker never actually did anything here (or, if he did, it's pretty much lost to history). Yet Facebook actually implements such a feature well, and suddenly it needs to pay up? How does that make any sense at all?

Mullin's report also highlights that Walker has been getting more aggressive in his patent lawsuits lately -- even going so far as to sue the organization behind the Powerball lottery, claiming that they violated his newly issued patent (7,740,537) on "applying lottery multipliers. Seriously. How is that possibly patentable?

Filed Under: jay walker, patents
Companies: priceline, walker digital