Rural business, university in ND trademark dispute

(AP) — A rural businesswoman who sells a sturdy camera that's used for monitoring farm machinery and livestock says the University of North Dakota is attempting to filch her company's AgCam trademark for use with its own camera.

"It's just arrogance," said Charissa Rubey, marketing director of Dakota Micro Inc. "They use your tax dollars to fight you."

Dakota Micro's AgCam is a portable, heavy-duty camera. It has a number of farming uses, including monitoring the liquid level in a fertilizer tank, looking after livestock during calving season, making sure a grain dryer is running at the proper temperature and observing grain transfers from a combine to a truck to minimize spills.

Rubey and her husband, Dave, developed the camera after Dave Rubey underwent neck surgery and was less able to turn his head to check on his equipment while he was harvesting.

A single-camera system and monitor costs $949. Rubey said Sunday the company sold more than 5,000 cameras last year. They are manufactured on a farmstead in North Dakota's southeastern corner, six miles north of the hamlet of Geneseo.

UND's AgCam was developed by students and faculty at the University of North Dakota to monitor the health of crops, rangeland, forests and vegetation from outer space.

The camera was installed on the International Space Station after the space shuttle Endeavor carried the equipment into space in November 2008. However, the camera has not worked properly, and it may not be repaired until this summer at the earliest, university officials said.

Records show Dakota Micro registered the AgCam trade name with the North Dakota secretary of state's office in May 2003.

U.S. Patent and Trademark Office records show the company's registration of the AgCam trademark became final in June 2005. Rubey said the AgCam's first interstate sale, which is necessary to acquire a federal trademark, was in July 2003.

After news of the UND camera's problems circulated last September, Rubey e-mailed the university, asking UND to stop using the AgCam name. Her previous informal requests on the issue, made over more than two years, had been ignored, she said.

"I received hundreds of phone calls and e-mails ... saying, 'Oh, wow, what happened with that camera you sent up on the space shuttle? It's not working,'" Rubey said. "So many people thought it was our camera."

UND rejected Rubey's request, saying the university had been using the AgCam name since 2001. The two cameras were unlikely to be mistaken for each other, said Julie Evans, UND's general counsel.

"Notwithstanding some minimal overlap in that both marks are being used for imaging equipment related to agriculture, we are doubtful that consumers will be confused about our respective goods and services," Evans said in a letter to Rubey.

In a subsequent letter to UND, Dakota Micro offered to allow the university to keep using the name if its use was linked to the school "in a noncommercial fashion" and restricted to the space-station project.

UND also would have to emphasize in its own materials that AgCam was an abbreviation for "agricultural camera," and allow Dakota Micro to expand the use of its own trademarked name, the proposal said.

UND responded last December by filing for its own AgCam service mark with the U.S. Patent and Trademark Office. The application is pending.

In a letter, university attorney Jason Jenkins said UND may seek to cancel Dakota Micro's trademark if the company and UND could not agree about the university's use of the AgCam name.

"This is a course of action that UND would prefer to avoid," Jenkins wrote in a letter last month to Eric Haugen, Dakota Micro's attorney. "As for the scope of any proposed resolution, we are open to nearly any proposal that fairly recognizes both parties' respective rights to the mark."

Rubey said she was confident Dakota Micro would win its case if the dispute went to court. "They have never had a functional unit," she said.

But Rubey said the company should not have to spend thousands of dollars defending itself against UND.

"Frankly, I was appalled and disappointed," she said. "To know that my own tax dollars are being used to threaten and strong-arm small businesses out of property that is rightfully theirs — it was horrifying."