The court granted defendant's motion for summary judgment of no false marking and rejected plaintiff's argument that wristwatch manuals were "unpatented articles" because "without the manual, the product is practically useless." "[Plaintiff] cites no authority in support of this position, nor can the Court identify any legal basis upon which to conclude that a patent mark on an instruction manual constitutes a patent mark on an 'unpatented article' within the meaning of § 292. . . . Though packaged together, the manuals and watches are not affixed to one another. [Plaintiff's] claims thus also fail under the 'affixed to” language of § 292. . . . The statute is not intended to create a treasure hunt for relators scouring department store shelves or corporate websites for obscure references to expired patents; it prohibits readily visible marks -- on products themselves, affixed to products, or used in advertising in connection with products -- falsely indicating that an unpatented article enjoys patent protection." Moreover, "[n]otwithstanding their mandatory language, the 'Terms of Use' are not advertising, nor are their references to the [patents] used in advertising. These pages unambiguously demonstrate that users need not access the 'Terms of Use' to purchase a watch from [defendant's] web site. Indeed, the link [defendant] provides to its 'Terms of Use' from a typical product page is at the very bottom of the page footer, in the smallest font on the page. . . . The Court therefore concludes that the patent numbers in the 'Terms of Use' are not false marking 'in advertising,' as they are not found 'in a medium or through a channel designed to promote the unpatented product to consumers.'"
Hollander v. Timex Group USA, Inc., 2-10-cv-00429 (PAED April 13, 2011, Order) (Schiller, J.)
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