Menu

Thursday, February 20, 2014

Camo in the Courtroom: DCS V. HyperStealth Ongoing

This was a case that we thought was settled long ago through more convenient measures. However, the lawsuit filed by Digital Concealment Systems, LLC against HyperStealth Biotechnology Corp. is still a going concern. DCS known for their A-TACS Camo patterns requested a summary judgement that they did not violate any of HyperStealth's copyrights with their A-TACS FG pattern. This case was in response to cease and desist letters sent from HyperStealth legal counsel stating to stop utilizing the pattern in their commercial ventures and all other venues. We have now found that this summary judgement was denied for the most part, back in November of 2013. A jury trial is now in the works to decide the case.

In response to the lawsuit filed, HyperStealth counterclaimed that 10 of their patterns were being infringed upon. Nine of the patterns were presented for vidence including CAMOPAT, CAMOPAT Avanced Recon, Eurospec35, Ghostex Alpha-3, Ghostex Delta-1, Ghostex Delta-6, Polecam, SOPAT, and SpecAM. They initially mentioned 10 patterns, but one (Eurospec Omni) was dismissed by summary judgement as HyperStealth abandoned their claim due to the DCS response to evidence showing infringement on that particular pattern. We provided full imagery of the pattern evidence in our previous article: Digital Concealment Systems (A-TACS FG) V. Hyperstealth Biotechnology Corp.
Eurospec Omni6-4C-F-60
To reiterate some points as explained in the decision, in order to prove copyright infringement, HyperStealth must show that they have a valid copyright and that elements of the pattern were original and copied. In order to do so, it must be proven the DCS has access to the patterns and there must be substantial similarities between the patterns. Also, copyright protection does not extend to concepts, but actual expressed ideas, which would allow someone to actually copy it. Mind reading is not covered. 

DCS contends that no one can reasonably prove similarities between the patterns and that A-TACS FG was independently created, which has an established precedent for disproving copyright infringement if evidence is provided. They did just that with their Camouflage Designer, Phil Duke presenting a video reenactment presenting his methods to creating the pattern. 
A-TACS FG Camo Pattern
HyperStealth claims that DCS visited their website 124 times utilizing IP address records and downloaded 61 MB of information prior to the development of A-TACS FG . They also state that Phil Duke omitted some aspects of pattern development in his evidential demonstration, which would lead to some doubt of independent creation. 

In response DCS states that Steve Hanks who deals with the marketing side of operations was the person visiting HyperStealth's website for market research and Phil Duke had seen the site when shown to him by Hanks. The court compared patterns and listened to HyperStealth's comparisons of the patterns similar elements along with DCS rebuttals. In the end the court established that there is a valid dispute. So, it appears there is going to be a show down with a Jury making the final decision on the evidence provided. 

We have provided the complete Order for Dismissal of Summer Judgement below. You can read full details on the decision along with HyperStealth designer Guy Cramer's testimony on similarities from each of his patterns presented as evidence compare to A-TACS FG, along with the rebuttal from DCS showing the differences between each pattern. Neither side would respond for comment.

One key element that we can take from this whole fandango is that HyperStealth alleges that elements were copied, while not presenting that A-TACS FG is a complete replication of one pattern they have developed. Clearly they think this is a point of contention, but will they be able to present their case in a manner to a Georgia jury that is both convincing and definitive to their defense? We obviously have our own bias across the board as we appreciate the camouflage designs from both companies and actually sell apparel and gear in the A-TACS Camo patterns. In the scheme of things we think this issue could have been better settled outside the court system and we imagine both sides probably would have wanted it that way as well.