After unsuccessful attempts to settle a copyright/trademark infringement dispute out of court, ActiveO, Inc., an Incline Village, Nevada corporation, announced today it filed litigation against Medtronic, Inc., on October 13, 2010. The case was filed in Federal Court in Salt Lake City for trademark and copyright infringement of ActiveO's trade name by Medtronic.
ActiveO alleges Medtronic has been using the ActiveO trade name for its most recently introduced bone cement sold under the trade name "KYPHON ActivOs 10 Bone Cement."
The facts presented by ActiveO are as follows:
On June, 21 2010, Kyphon/Medtronic issued a press release announcing the launch of KYPHON ActivOs 10 Bone Cement. ActiveO, Inc. has had its "ActiveO" trademark registered since August of 2007.
ActiveO, Inc. began development of a minimally invasive treatment for contained herniated discs that dates back to October of 2004.
In the spring of 2005, Medtronic Spine, headquartered in Memphis, Tennessee, became aware of the ActiveO technology and requested a meeting to get a better understanding of the technology. In June of 2005, Medtronic's Vice President of Technology Development, Mike Sherman, signed a confidentiality agreement with ActiveO, and the two companies met later that month. Medtronic Spine continued to ask for periodic updates from ActiveO right up until Medtronic's acquisition of Kyphon.
ActiveO, Inc. made its first public presentation to the medical community at the New Technology Session of the Society of Interventional Radiology Meeting in San Diego, California in March of 2009. Kyphon/Medtronic's Marketing Director not only knew about the ActiveO presentation, but he also spent about 30 minutes following the presentation with one of ActiveO's Medical Directors.
Just over a year later, on June, 21 2010, Kyphon/Medtronic issued a press release announcing the launch of KYPHON ActivOs 10 Bone Cement.
Jim Rybicki, CEO for ActiveO, stated that he was "absolutely astounded" when he saw the press release in view of his prior history with Medtronic. "This is just a simple case of Trademark theft by Kyphon/Medtronic," alleges Mr. Rybicki.
"Unless Medtronic will acknowledge their misdeeds and act responsibly and reasonably to make this right, we will have no choice but to ask the Court to make it right," said Mr. Rybicki. ActiveO has filed a motion with the Court requesting that Medtronic be preliminarily enjoined from using the "ActivOs" mark. No hearing date has been set on ActiveO's motion.