S-Corp and Its Sole Owner Are Both Proper Patent, Trademark & Copyright Plaintiffs

Claudia Croft and Sheer Delight, Inc. sued Be Wild, Inc, BWild, Inc, and Brian Cohen for patent, copyright, and trademark infringement. Defendant sought summary judgment that Sheer Delight, Inc. could not be a proper patent infringement plaintiff because Croft owned the patent-at-suit individually and hadn't exclusively licensed it to Sheer Delight. (Similar arguments were presented concerning the trademark and copyright theories.) Plaintiff admitted that it did not have a written exclusive license. But plaintiff argued at summary judgment that it had an implied exclusive license. And this carried the day:

First, as to whether one or both Plaintiffs is the proper party on each of the claims, the Court finds a genuine issue of material fact exists. Plaintiffs posit that because Plaintiff Sheer Delight, Inc., is a sub-chapter S corporation with Plaintiff Claudia Croft as its sole owner, the profits are attributable, or passed through, as income to Croft. Croft's affidavit avers that the intent of Croft as the patent owner was that Sheer Delight, Inc., would be the only licensee of the patent-in-suit. These submissions are sufficient to avoid summary judgment on the issue of implied exclusive licensees of patents and trademarks and legal or beneficial owners and exclusive licensees of copyright.

Croft v. Be Wild, Inc., Slip Op., Case No. 09-863 (M.D. Fla. Oct. 7, 2010) (J. Lazzara)