MetroPCS, Virgin locked in legal battle over MetroFlash

MetroPCS sues Virgin Mobile over MetroFlash program. It sounded curious at the time. Why would MetroPCS sue Virgin Mobile over one of its own programs? News of the issue went on the down low after that, but this week we heard the latest development. Courthouse News has the breakdown. Metro sued Virgin because Virgin approached Metro asking it to cease its MetroFlash program, which reflashes CDMA phones to work on Metro’s network. This prompted Metro to file a preemptory suit against Virgin, which led to the inevitable countersuit from Virgin against Metro. The claims related to trademark infringement and meddling with customer contracts. Metro’s suit sought a declaration that they are not infringing on Virgin’s trademarks and that they are not meddling with the latter’s contracts. Virgin’s countersuit, obviously, states the opposite. Judge Sidney A. Fitzwater threw out the contract meddling claim. “[T]he mere possession of a Virgin Mobile-branded handset cannot itself indicate the existence of a contract between Virgin Mobile and the possessor,” wrote Fitzwater. The other claim, of trademark infringement, remains open, because the Virgin trademark still appears on phones that are reflashed for MetroPCS. The DMCA would seem to solve this case. It states that users can unlock phones with the intent of connecting them to other networks. Since the intent of MetroFlash is to connect phones to the MetroPCS network, it seems unlikely that Fitzwater would rule that users cannot reflash Virgin phones to the MetroPCS network. So what ruling can come of this? Nothing comes immediately to mind, other than a mandatory covering up or removal of any Virgin Mobile branding from reflashed phones. Clearly, MetroPCS is within its legal right to reflash the phones, so restricting them would lead only to further lawsuits. ]]>