A California federal jury last month found in favor of Neurovision Medical Products Inc. in its second trial over claims that NuVasive Inc. infringed its rival’s trademark, and returned a $30 million verdict against NuVasive. This came after the Ninth Circuit’s reversal of a previously awarded $60 million verdict against NuVasive. This was Neurovision’s second attempt to collect on its claim that NuVasive willfully infringed the trademark for the word “neurovision” and concealed its knowledge of Neurovision’s patent from U.S. Patent and Trademark Office (USPTO). The jury found that Neurovision had proved that NuVasive had fraudulently obtained the Plaintiff’s trademark and used it in a manner that was likely to cause confusion among relevant consumers. The jury verdict is the most recent development in the long-running litigation, which began when Neurovision filed suit about five years ago.
The original suit, filed by Ventura, Calif.-based Neurovision in 2009, alleged that NuVasive had started using the “neurovision” mark to purposely rip off Neurovision’s established brand of nerve-monitoring equipment. Neurovision claimed it had a common-law right to the mark, having used it since the early 1990s, which long predated NuVasive’s registration of the mark with the USPTO in 2003. Neurovision alleged NuVasive had started to use the neurovision mark without authorization and failed to tell the USPTO that it knew about Neurovision’s prior use, according to court documents.
In October 2010, a jury awarded the $60 million verdict to Neurovision, finding that NuVasive had willfully infringed the trademark and purposely deceived the USPTO by not disclosing the other company’s use of the mark. The jury barred NuVasive from using the neurovision mark in the future, prompting NuVasive’s 2011 appeal to the Ninth Circuit. The Ninth Circuit vacated the $60 million verdict in September 2012, saying the lower court misled the jury and improperly excluded evidence, and remanded the case back to the California federal court for a new trial.
In the second trial, the jury still found against NuVasive. Now NuVasive says it will file post-trial motions in the U.S. District Court for the Central District of California seeking judgment as a matter of law, and, in the alternative, a new trial. Then, if necessary, the company says it will appeal the verdict to the Ninth Circuit.
Keith J. Wesley, a lawyer with the California-based firm of Browne George Ross, represented the Plaintiff in this case. He did a very good job for his client.
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