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Tech firm loses Bon Jovi battle

A judge denies a motion that would have restricted Universal's promotion of Bon Jovi's new album--a blow to the small tech firm that sued the label for cutting it out of the deal.

Bon Jovi's latest album, "Bounce," is already showing some resiliency.

A New York district court judge late Friday denied a motion to restrict Universal Music Group from distributing and promoting the record, due in stores Tuesday. It will be one of the first major albums released with identification numbers that give in-store buyers bonuses via the Web.

The record label, a unit of Vivendi Universal, won the first round in a lawsuit filed in September by New York-based DownloadCard. The small marketing technology firm alleges that Universal made use of its Web tie-in program without permission to market the release of Bon Jovi's eighth album. The lawsuit, filed in the Southern District Court of New York, sought a preliminary injunction and punitive damages.

"Judicial interference with the Oct. 8 distribution of the "Bounce" CD would cause significant expense, marketing disruption and commercial embarrassment, in part impossible to quantify, to (Universal Music Group) and to third-party Bon Jovi...to warrant that relief," according to the motion signed by Senior District Court Judge Charles Haight.

At the center of the lawsuit is DownloadCard's technology-based incentive program designed to boost in-store sales, which are on the decline as consumers take to digital file copying and Web piracy. The system, while not an anti-copying technology, aims to protect album sales through the use of incentives. The company has worked with Universal Music Group and other labels in the past to promote releases by providing buyers with an identity number or certificate that directs them to a Web site to receive bonus material.

DownloadCard said that it pitched a campaign for the debut of "Bounce," but Universal Music Group developed its own program, called "American XS," internally. Under the record label's plan, each Bon Jovi album will be distributed with a unique PIN (personal identification number) code that fans can use to register at Bonjovi.com, giving them membership in American XS. Members of the free worldwide club can get perks such as priority concerts tickets, bonus unreleased tracks, and exclusive online chats with the band.

Still, DownloadCard contends that the program violates its intellectual property.

An attorney for DownloadCard said he does not consider the judge's ruling a setback. "The next step for us is to continue to press our case aggressively to protect our intellectual property rights. We remain confident of the merits of the case," said Stephen Kramarsky, the plaintiff's attorney.

Universal Music said it is pleased with the court's fast decision.

"DownloadCard's claims are completely without merit and should never have been brought in the first place," Universal Music Group said in a statement. "We look forward to releasing Bon Jovi's album 'Bounce' on Oct. 8 as scheduled, and we remain committed to launching the serialization program 'American XS'."