Google Swipes at Video Chat Copyright Claims

SAN JOSE, Calif. (CN) - Google asked a federal judge to dismiss claims that it stole a video-chat platform for its social-networking service Google+.

Be In Inc. accused Google and its United Kingdom head of business markets Richard Robinson of trade-dress and copyright infringement, as well as misappropriation of trade secrets and civil conspiracy, in a July federal complaint. The New York-based tech company said Google and Robinson had surreptitiously arranged demos of Be In's video-chat platform, CamUp, to figure out how it worked in May 2011.

Google launched Google+ a month after those meetings with a feature called Hangouts. Be In says Hangouts has the same look and feel of CamUp and is "virtually identical in text and overall appearance to the CamUp button that Be In proposed to Google."

In its Sept. 4 filing, Google asked U.S. District Judge Lucy Koh to essentially gut Be In's complaint. No stranger to high-tech showdowns, Koh has spent the last few months wrapping up proceedings in Apple's $1 billion patent infringement case against Samsung.

Google claims that the trade-dress claims fail because Be In failed to properly launch CamUp.

"Trade dress in a website is protectable only if it has become so distinctive and well-known that it has acquired what is known as 'secondary meaning,'" according to the brief authored by Google attorney Colleen Bal. "Secondary meaning is acquired only when a substantial segment of the consuming public has learned to associate the unique, non-functional appearance of the website with a single source (here, plaintiff), just as consumers might learn to associate a brand name with a unique supplier." (Parentheses in original.)

"Here, plaintiff alleges only that it introduced the CamUp website at a trade show in Austin, Texas," added Bal, an attorney with Wilson Sonsini in San Francisco. "It does not allege a dollar spent on advertising or marketing, a dollar earned from sales, any significant user adoption, or any consumer association of the mundane appearance of the CamUp website with plaintiff. Given the absence of a massive media blitz, a unique website design, or widespread consumer adoption of CamUp between March 2011 and June 2011, plaintiff cannot plausibly allege secondary meaning as a matter of law based on a website available for only three months."

Google also says Be In's copyright claim is defective because the company waited until the eve of its lawsuit to file paperwork with the Copyright Office. Be In also allegedly failed to identify aspects of the CamUp website that Google supposedly infringed.

"With the exception of two or three web pages plainly not at issue here, the only work that plaintiff deposited with the Copyright Office - and thus the only work for which it has sought registration - appears to be the source code underlying the CamUp website," Bal wrote. "But plaintiff does not (and could not) allege infringement of its source code, since Google has never had access to that code."

"Instead, plaintiff vaguely alleges copyright infringement of the appearance or content of the CamUp website, but it has not sought registration for the appearance or content of the website," she added. "Plaintiff's copyright infringement claim must therefore be dismissed." (Parentheses in original.)

Bal also says that Be In failed to deposit enough copies of the work it wanted to copyright when it applied with the Copyright Office.

"A party that fails to satisfy the deposit requirement cannot maintain a copyright lawsuit with respect to the claimed work," the brief concludes.

A hearing on Google's motion to dismiss is set for Jan. 3, 2013.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit