Startup Blasts Google Failure to Patent Claim

SAN JOSE, Calif. (CN) - Video-chat startup Be In Inc. rejected Google's contentions that it failed to make trade dress claims or properly copyright its technology.

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

Be In claims that a month after those meetings, Google launched Google+ 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 Be In proposed to Google."

Earlier this month, Google asked U.S. District Judge Lucy Koh to essentially gut Be In's complaint. According to Google, the trade dress claims fail because Be In failed to properly launch CamUp and the copyright action falters because Be In waited until the eve of its lawsuit to file paperwork with the Copyright Office.

But Be In says its trade dress claim is specific enough, identifying five specific elements which "interact to create a particular visual impression."

"Be In does not allege a vague or open-ended list of elements, which is the principal pleading flaw animating the cases upon which Google relies. Be In also has alleged multiple factors that support a finding of secondary meaning, including the manner in which CamUp was introduced to the market, the substantial recognition that it already has received, and Google's apparent intentional copying of CamUp's identifying features. Further, Be In has alleged multiple factors and provided pictures supporting a finding of likelihood of confusion, including the confusing similarity of the sites, the similarity of the business, and the evidence of copying," the company states in its reply to Google's dismissal request.

"Google's motion attempts to isolate these factors and demands even more detail for each. Be In is not required to try its entire case in its complaint. These allegations, individually and as a whole, are more than sufficient to state a claim for trade dress infringement," Be In adds.

The company said it deposited 11 documents with the Copyright Office, including images of the CamUp webpage. Google's motion cites only three of the documents, and neglects to mention the CamUp screenshot, Be In says.

"Be In satisfied its registration requirement on June 22, 2012, by filing a copyright application, which attached a deposit of eleven separate documents, including all relevant images showing the text, selection, arrangement, editing, and compilation of the CamUp web video chat platform that is the basis for Be In's claim. Be In then filed its complaint and amended complaint on June 28, 2012 and August 16, 2012, respectively. Since the filing of the Amended Complaint, the U.S. Copyright Office has granted the CamUp site full registration (Reg. No. TX-7-567-462, effective date of 6/22/2012) demonstrating the U.S. Copyright Office's determination that the entirety of Be In's deposited works constitutes copyrightable subject matter," Be In's reply states.

"Be In has alleged more than sufficient facts to support its trade dress and copyright claims against Google," the company concludes.

Be In Inc. is represented by Joseph Addiego III of the San Francisco firm Davis Wright Tremaine, and William Wallace from Clifford Chance in Wash., D.C.

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