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Google Fires Back Over Chat Platform Claim

SAN JOSE, Calif. (CN) - Google fired back at a tech start-up's claims that it properly alleged Google stole its video chat platform for use with Google+.

Earlier this year, Be In accused Google and its United Kingdom head of business markets Richard Robinson of duping the company to share its CamUp technology for a potential business partnership -- only to discover the tech giant embedded a feature that is "virtually identical in text and overall appearance to the CamUp button that Be In proposed to Google" in Google+ Hangouts a month after their meeting.

Google contends that Be In failed to properly register CamUp's copyright and that trade dress claims fail because Be In never officially unleashed its CamUp technology onto the world. But Be In alleges that it deposited 11 documents on file with the Copyright Office which more than satisfy the registration requirement, and that its trade dress claims identify five specific elements which prove Google's infringement.

In an opposition brief filed Oct. 2, Google said New York-based Be In, Inc.'s arguments "ignore binding authority and cannot make up for the glaring deficiencies" of its trade dress and copyright infringement claims.

"With respect to its trade dress claim, plaintiff has not pleaded facts to support either (1) that the claimed trade dress acquired secondary meaning, such that the consuming public learned to associate, by June 2011, the appearance of plaintiff's video chat website with Be In, Inc., rather than merely the product itself, or (2) that because consumers so strongly associate the trade dress with plaintiff, they are likely to be confused into believing that Google's video chat Hangouts feature was created by, sponsored by, or is otherwise connected to plaintiff," Google contends.

"The impetus of plaintiff's lawsuit (including its claims for trade secret misappropriation and conspiracy which are not at issue in this motion) is that Google supposedly stole a secret business idea from plaintiff and as a result severely undermined plaintiff's video chat business in its infancy, entitling plaintiff to damages for a business that never got off the ground. In stark contrast, plaintiff's trade dress claim is premised on the theory that the appearance of plaintiff's video chat website is unique and was so well known among consumers within three months of its launch that Google deliberately sought to mimic the trade dress to free ride on plaintiff's established consumer recognition and goodwill," Google says in its opposition.

The tech giant also reiterates that Be In's copyright fails for a lack of specifics, though it does acknowledge that the start-up as satisfied registration requirements and drops that claim.

"Upon receiving plaintiff's brief stating that it had deposited more than the material Google received, Google went back to the Copyright Office and learned that the

Copyright Office, through no fault of Google, neglected to print and provide Google with a portion of the plaintiff's deposit. Based on these facts, Google withdraws its argument that plaintiff failed to seek a copyright registration for the work at issue," Google states.

Nonetheless, the company says Be In's copyright claims should be rejected.

"Google explained in its opening brief that copyright claims asserting the look and feel of a website, without specifying the elements of the website allegedly infringed, are improper and should be dismissed for failure to give adequate notice to the court and to defendant of the scope of the copyright claim. There are millions of websites which employ similar features and attributes, and which are continuously evolving, with the result that website 'look and feel' copyright claims are notoriously vague and therefore require greater specificity of pleading. That is particularly so in cases like this one, where the plaintiff also asserts a trade dress infringement claim purporting to encompass aspects of the website's appearance," Google says, adding that Be In's copyright and trade dress claims are fatally indistinguishable.

"Plaintiff relies on its having included in its amended complaint a screen shot of each of a page from the CamUp website and the Hangouts feature as an identification of the allegedly infringed and infringing elements of its copyright claim. But plaintiff has already asserted that nearly all the visual elements in the Cam Up screen shot (the logo placement, color, large and small windows and their contents, and rectangular boxes containing chat and playlist features surrounding the windows) comprise its allegedly infringed trade dress. The screen shots are thus no help in meeting plaintiff's obligation to distinguish between the copyright and trade dress claims," Google says.

Colleen Bal and Charles Graves, of the San Francisco firm of Wilson Sonsini Goodrich & Rosati, represent Google in this action.


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