“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.”
July 12, 2017
International Fruit Genetics (IFG) v. orcharddepot.com, Casey Donahue, Ian Donahue response to original May 22, 2017 complaint.
In its May 22, 2017 complaint, IFG asserted:
“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.”
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 No. 1 and Doe No. 2 offering to sell cuttings of “Moon Drop” grapevines were no longer active on Amazon.
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 a July 12, 2017 filing, attorneys for Blue Marble Products, LLC pushed back, 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 currently boasts on its 90+ sites:
MEMORANDUM OF POINT AND AUTHORITIES
Defendants ORCHARDDEPOT.COM, CASEY DONAHUE, and IAN DONAHUE (collectively “Defendants”) respectfully submit this Memorandum of Points and Authorities in support of its Motion to Dismiss the Complaint Plaintiff International Fruit Genetics, LLC (“Plaintiff”) filed on May 22, 2017.
INTRODUCTION AND SUMMARY OF ARGUMENT Defendants operate an internet service provider (ISP) website ORCHARDDEPOT.COM, which is a third-party retailer that enables consumers’ convenient search and purchase of gardening products from legitimate source websites (hereinafter “source websites”).
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.
Among the various products listed on ORCHARDDEPOT.COM include a few grapevine cuttings that allegedly infringe Plaintiff’s intellectual property (IP) rights.
Defendants, as a product reseller,obtain listing information of these grapevine cuttings from unknown sellers on Amazon.com. Furthermore, Defendants do not possess products information such as how these grapevine cuttings were obtained or cultivated. Defendants also lack the personal contact information of the Amazon sellers. Not only are they never in possession of the alleged infringing products, Defendants did not make any sales related to these alleged products.
Following product unavailability on the source websites as described in page 6 of Plaintiff’s Complaint (“At the time of filing of this Complaint, the listings posted by Doe. No1 and Doe No. 2 offering to sell cuttings of “Moon Drop” grapevines were no longer active on Amazon”), Defendants have voluntarily and permanently removed such product listings on ORCHARDDEPOT.COM.
After receiving the Complaint on and about June 2017, Defendants have taken additional steps to prevent listings related to Plaintiff’s products reappearing on ORCHARDDEPOT.COM.
The Plaintiff’s entire claims, including patent infringement, trademark infringement, unfair Competition and other related claims (Count I~ X) should be dismissed under the First Sale Exhaustion Doctrine that prevents the IP owner to hold a reseller of a sold product liable.
Specifically, Plaintiff’s intellectual property right is exhausted once the alleged grapevine cuttings have been sold.
The reselling of the alleged grapevine cuttings does not constitute an infringement of Plaintiff's intellectual property rights.
As such, the Defendants, as a downstream, third-party reseller, shall not be held liable for Plaintiff's alleged infringement claims.
A phone conference in the IFG case is set for February 16, 2018 at 10:30 a.m.
Pryze.com's Peter Franklin, CEO of Blue Marble Products, LLC, is battling another, even more serious case in federal court: the illegal importation and distribution of significant quantities of counterfeit metal detectors into the United States.
Frequently, the actual First Texas trademark is removed, but the products and printed material, which includes copyrighted artwork and literature, are exact copies of First Texas/ products and protected intellectual property.
Shanghai Electonic, in a conspiracy with Blue Marble Products, LLC and the other defendants, are involved in facilitating the ongoing and unrestrained commercial importation of counterfeit metal detectors.
Defendant Blue Marble Products, LLC (d/b/a patiobloom.com) is a company organized under the laws of the State of California, under registered agent Peter Franklin at 1328 Mission Street #9, San Francisco, California.
First Texas is the registered owner of the Bounty Hunter® trademark: Bounty Hunter® is a line of metal detectors used by botn amateurs and professionals in the United States and abroad. Shanghai Electronic, in a blatant attempt to profit from First Texas’ substantial investment in its products, has acted and continues to act in concert with various individuals and entities, including Peter Franklin’s Blue Marble Products, LLC.
Claims include copyright infringement and unfair competition; First Texas is seeking a permanent injunction restraining defendants, including Blue Marble Products, LLC, from “importing, purchasing, distributing, selling, or offering for sale” any counterfeit metal detectors.
In addition, First Texas is seeking a judgment covering attorney fees, court costs and triple damages.
This particular Blue Marble site, patiobloom.com, is still online.
However, homemadepieces.com, another scam site operated by Blue Marble, is gone, due in part to the effort of one Amazon Handmade/Etsy seller.
The seller, who agreed to provide an exclusive statement to Glistening, Quivering Underbelly on the condition of anonymity, reports this experience from early December 2017:
“During the holiday season I happened to be Googling one of my products and found it listed on that site (homemadepieces.com).
After looking a bit further into I noticed that they had many of my listings with the price doubled. The site looked legit as it was located in California and not an overseas website.
As I clicked through it, I noticed many Etsy shops products and Amazon.
I tried contacting the website directly and they did not respond. I tried calling them and by this time had figured out it looked like a scam site.
I posted in the Etsy forums that night and many vendors found their products listed there also.
The next day my husband posted on the Amazon forum to warn other vendors and it was the same story: listings had been stolen and used on the website with no permission.
We filed a cease and desist notice with Shopify who was hosting the site.
That was on a Friday and I believe by Tuesday of the following week the site had been shut down.
Many vendors from Amazon and Etsy filed cease and desist forms with Shopify, so they were quick to take care of it.”
With at least 90 sites still online, it appears Peter Franklin's Blue Marble Products, LLC scheme is pulling in more than enough dough to cover its growing legal expenses.
Stay tuned.