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Specht v Google 7th Circuit

Specht v Google 7th Circuit

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Published by propertyintangible
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Published by: propertyintangible on Apr 07, 2014
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09/14/2014

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In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3317E
RICH
S
PECHT
 ,
 ET AL
.,
Plaintiffs-Appellants
 ,
v.
G
OOGLE
I
NC
.,
Defendant-Appellee.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.No. 09 C 2572 —
Harry D. Leinenweber
 ,
 Judge.
 
A
RGUED
A
PRIL
2,
 
2012—
 
D
ECIDED
A
PRIL
4,
 
2014Before R
OVNER
 ,
 
S
YKES
 , and T
INDER
 ,
Circuit Judges.
R
OVNER
 ,
Circuit Judge
. During the dot-com boom of the1990s, Erich Specht founded Android Data Corporation, andregistered the “Android Data” trademark. The companyceased principal operations in 2002, but the Android Datamark remained registered to it. Five years later, Google Inc.rolled out its new Android operating system for mobilephones. Specht responded with this suit against Google,
 
2No. 11-3317alleging primarily that, by releasing the Android operatingsystem, Google had infringed on his Android Data mark.Google counterclaimed that Specht had abandoned the markafter 2002, forfeiting his ability to assert any rights to it.Because we agree with the district court that the undisputedevidence in the record establishes that Specht abandoned themark, we affirm the district court’s grant of summary judg-ment to Google.
Background
Inspired by the recent success of a number of technologystart-ups, Erich Specht decided in 1998 to enter the businessworld himself. He designed a suite of e-commerce softwareand formed Android Data Corporation (ADC), through whichhe intended to license the software to clients. ADC alsoperformed a number of other web-based services to clients,including website hosting and design, and computer consult-ing services. Two years later, Specht applied to register thetrademark “Android Data” with the United States Patent andTrademark Office. The application was approved in 2002. Despite the trademark’s approval, by the end of 2002 ADCstopped major operations. That year, the company lost fiveclients, prompting Specht to lay off his only employee, cancelADC’s internet service contract, and move the business into hishome. Signifying the end of ADC’s life, he transferred all ofADC’s assets, including its software and the registered“Android Data” mark, to another of his wholly-ownedcompanies, The Android’s Dungeon, Incorporated (ADI).Specht spent all of the next year unsuccessfully seeking a buyer
 
No. 11-33173for ADC’s assets. As ADC was idle, he also shut off its phoneline that year. After 2002, Specht’s business activities were limited. Hecontinued to host ADC’s website a while longer and conductedsome hosting services for others. But he let the registration forthe company’s URL (androiddata.com) lapse in 2005, at whichtime he could no longer be reached at his associated emailaddress. Specht passed out business cards in 2005 bearing theAndroid Data mark, but the record does not disclose howmany, to whom, or why.In 2007, about five years after he first began to wind downADC’s operations, Specht attempted to revive the use of theAndroid Data mark. First, to promote his software suite tocatalog companies, Specht sent out a mass mailing in Decem- ber 2007 with the Android Data mark. These mailings garneredno sales. Second, two months later, Specht attempted to licensehis software to a healthcare consulting firm, also to no avail.He made no other use of “Android Data” in 2007 or the nextyear. In April 2009, he used the mark once again when heresurrected his website, albeit with a slightly different URL(android-data.com) because his previous URL had by then been registered by a third party. He also assigned the AndroidData mark to ADI, retroactive to the December 2002 assettransfer.Meanwhile, during the years that Specht struggled with hisshrinking business, another technology start-up calling itself“Android, Incorporated” began developing what would become known as the Android operating system for smartphones. Google purchased Android, Inc., in 2005. Two years

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