Aereo vs. FilmOn: A New Day, Another Lawsuit

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Alki David

Time will tell if the millions of dollars that Barry Diller has sunk into Aereo will pay off, but the digital-TV distribution business has undoubtedly been good for the legal business.

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The latest round to make lawyers richer comes on Wednesday in California federal court. Aereo is now suing FilmOn.com and its billionaire founder Alki David for trademark infringement.

If you'll remember, after Aereo launched and stole some of FilmOn's thunder, David started up new services named BarryDriller and AereoKiller.

So, Diller sued David and his company for violating his publicity rights and implying a false endorsement.

Then, last month, David struck back with a lawsuit against Aereo, claiming that he had claimed rights to "Aero" and had used this antenna product before Aereo came along.

Wednesday represented Round Three.

Aereo has now responded with a trademark-infringement lawsuit against FilmOn that says that "defendants have devised a scheme to launch what they claim is a competing business called 'Aero.'"

The lawsuit continues by saying that David claims he'd been using "Hauppauge WinTV-Aero-M" in the marketplace before Aereo, but prior to the filing of his lawsuit last month, neither "defendants nor their licensor had previously utilized the term 'Aero' separate and apart from the 'Hauppauge WinTV-Aero-M' name."

Here's the full complaint.

Now the two companies fight over who has the legitimate trademark claim and whose other product is confusingly similar. Meanwhile, both companies continue to do battle with TV networks who don't care about the trademark spat, but do care about the alleged violation of their right to transmit copyrighted broadcasts to the public.

Both companies are at war with each other; both companies could be shoulder-to-shoulder at the Supreme Court one day.

In a statement, David says he has "been using the name Aero well ahead of Baboon or whatever they called themselves before."

He even invites Round Four.

"A friend of mine on Wall Street in New York tells me that the word on Aereo is that it is a flop," he adds. "And if they want to sue me or anyone else for freedom of speech, then bring it on."

Email: eriq.gardner@thr.com; Twitter: @eriqgardner