Abarca Health, LLC v. PharmPix Corp., 2012 WL 1123611 (D.
Puerto Rico)
Abarca sued PharmPix and others for copyright infringement,
Lanham Act violations/trademark infringement, misuse of trade secrets, and so
on. PharmPix counterclaimed for
violation of the Sherman Act and Puerto Rican law; the court dismissed most of
the counterclaims, but I’m only going to look at the Dastar aspect of the ruling.
“These claims arise out of a tangled dispute regarding the parties'
conduct in the pharmacy benefits industry, touching on their alleged use of
computer software, misappropriation of business plans, and communications with
prospective customers.”
PharmPix makes web based pharmacy benefit management (PBM)
software, for which it has registered a copyright. Abarca allegedly told various “peers and
clients” that it was going to sue for copyright infringement, allegedly to
prevent PharmPix from doing business.
PharmPix sought to dismiss the Lanham Act (and coordinate
Puerto Rico law) allegations as Dastar-barred.
Although Dastar
purported to allow certain false advertising claims, it “did not invite
plaintiffs to recast their false authorship claims in the style of false
advertising. Courts presented with similar claims post-Dastar uniformly look past the plaintiff's nomenclature and test
whether the ‘characteristic’ or ‘quality’ that is allegedly misrepresented is
simply the product's creative authorship.” Abarca’s claim was that PharmPix misleadingly
claimed to have an “innovative” “proprietary” software application. While “proprietary” is just about ownership,
Abarca’s challenge to “innovative” could fall outside Dastar, though it might fail at the summary judgment stage.
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