November 13, 2015

Indiana Cable/Satellite TV Litigation: Joe Hand in Federal Court Again Alleging Interception


Indianapolis, Indiana - A lawyer for Plaintiff Joe Hand Promotions, Inc. of Feasterville, Pennsylvania filed an intellectual property lawsuit in the Southern District of Indiana alleging that Angelina S. Alford, individually and d/b/a Tag's Pub and Eatery LLC of Frankfort, Indiana, unlawfully intercepted Plaintiff's program.

Joe Hand distributes digital content. It asserts that it holds exclusive domestic rights to the commercial distribution of "Ultimate Fighting Championship 167: Georges St. Pierre v. Johny Hendricks." In an intellectual property complaint filed yesterday, Joe Hand accuses Alford and Tag's Pub and Eatery LLC, of which Alford is allegedly an officer, of illegally intercepting the program on November 16, 2013.

In addition to interception, the allegations against Defendants include reception, publication, divulgence, display, exhibition, and "tortuous" [sic] conversion of the program. Joe Hand asserts that the acts were "willful, malicious, egregious, and intentionally designed to harm Plaintiff, Joe Hand Promotions, Inc., by depriving Plaintiff of the commercial license fee to which Plaintiff was rightfully entitled to receive from them." Joe Hand contends that by doing so, "the Defendants subjected the Plaintiff to severe economic distress and great financial loss." As a result of these alleged acts, Defendants have been have been accused in this lawsuit of violating 47 U.S.C. § 605 and 47 U.S.C. § 553 as well as conversion.

Joe Hand seeks statutory damages of $110,000 for each violation of 47 U.S.C. § 605; $10,000 for each violation of 47 U.S.C. § 553; $50,000 for each willful violation of 47 U.S.C. § 553; compensatory and punitive damages on the claim of conversion; costs; and attorney's fees.

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November 12, 2015

Indiana Patent Litigation: USITC Begins Investigation at Request of Indianapolis-Based Plaintiff


Washington, D.C. - The U.S. International Trade Commission ("USITC") began an investigation under section 337 of the Tariff Act of 1930 regarding the importation and sale of blood cholesterol test strips that allegedly infringe a U.S. patent. The respondents are Jant Pharmacal Corp. of Encino, California; Infopia America LLC of Titusville, Florida and Infopia Co., Ltd. of the Republic of Korea.

In August 2014, Indiana patent attorneys for Plaintiff Polymer Technology Systems ("PTS") of Indianapolis, Indiana sued respondents in the Southern District of Indiana alleging infringement of U.S. Patent No. 7,087,397, "Method for determining HDL concentration from whole blood or plasma," which was granted by the United States Patent and Trademark Office. In the lawsuit filed in Indiana federal court, PTS also asserted that Defendants had violated the Lanham Act.

In October 2015, PTS filed a complaint with the USITC involving its point-of-care blood cholesterol testing meters, test strips, and systems containing the same naming the same three parties. PTS asks that the USITC issue an exclusion order and a cease and desist order.

No decision has yet been made on the merits of the USITC action. The matter will be assigned to an administrative law judge ("ALJ"), who will hold an evidentiary hearing. The ALJ will make an initial determination regarding whether there is a violation of section 337. That decision, in turn, is subject to review by the USITC, which then makes a final determination.

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November 10, 2015

Indiana Trademark Litigation: Shipshewana Spice Company Sues Amish Farms for Use of "Happy Salt" Trademark


Shipshewana, Indiana - Indiana trademark lawyers for Plaintiff Kevin Horn, sole proprietor of Shipshewana Spice Company of Warsaw, Indiana, filed an intellectual property lawsuit in the Northern District of Indiana alleging that Bob Wilson d/b/a Amish Farms and Shipshewana's Best Spice Co. of Millersburg, Indiana infringed the trademark "HAPPY SALT," Trademark Registration No. 4,241,663, which was granted by the United States Patent and Trademark Office. Horn also alleges trademark counterfeiting, false description, trademark dilution and unfair competition.

Plaintiff Horn of Shipshewana Spice states in his intellectual property complaint that his company has been selling spices and other seasonings since 1994 both locally in north-central Indiana and online at Plaintiff further claims that the trade name "HAPPY SALT" has been associated with his spices since 1994. A trademark registration for this mark in International Class 30 for "Seasonings, namely, Seasonings in salt" was granted by the USPTO on November 13, 2012.

Defendant Wilson, alleged to be the operator of the website, is accused of offering counterfeit goods offered as "HAPPY SALT SEASONING," "HAPPY HEARTS SALT FREE SEASONING" and "HAPPY SEA SALT SEASONING." Plaintiff also protests the use by Defendant of the business name "Shipshewana's Best Spice Company," which it contends is nearly identical to Plaintiff's business name, "Shipshewana Spice Company".

The complaint, filed by Indiana trademark attorneys for Plaintiff, includes the following counts:

• First Claim: Trademark Infringement Under Lanham Act §32; 15 U.S.C. §1114
• Second Claim: Trademark Counterfeiting Under Lanham Act §32; 15 U.S.C. §1114
• Third Claim: False Description Under Lanham Act §43; 15 U.S.C. §1125
• Fourth Claim: Trademark Dilution Under Lanham Act §43; 15 U.S.C. §1125

• Fifth Claim: Unfair Competition Under Lanham Act §43; 15 U.S.C. §1125

Horn seeks equitable relief along with damages, costs and attorneys' fees.

Continue reading "Indiana Trademark Litigation: Shipshewana Spice Company Sues Amish Farms for Use of "Happy Salt" Trademark" »

November 9, 2015

EFF at Congressional Roundtable: Do U.S. Copyright Laws Work in the Digital Age?


Santa Clara, California - EFF to participate in today's U.S. House Judiciary Committee discussion on copyright law in the digital age.

Today at 2 p.m., Electronic Frontier Foundation ("EFF") Staff Attorney Kit Walsh will participate in a roundtable discussion about U.S. copyright laws convened by the House Judiciary Committee, which is undertaking the first comprehensive review of the nation's copyright laws since the 1960s.

EFF argues that copyright was intended to promote creativity, but the law has not developed to support the explosion of creativity enabled by new technologies. Too often, it says, copyright is instead being abused to shut down innovation, creative expression, and even everyday activities like tinkering with your car.

At the roundtable discussion being held at Santa Clara University today, Walsh will speak about reforming Section 1201 of the Digital Millennium Copyright Act (DMCA), an overbroad law that locks device owners out of their software and media. Walsh will also discuss the need to reduce the sizeable "statutory damages" available to copyright claimants--even when rightsholders suffered no harm--so that users of copyrighted works do not face a financial death sentence if they misstep in exercising their rights to remix and tinker. Finally, she will discuss how Congress can ensure that one-sided click-through agreements don't strip users of their freedoms under copyright law or the right to resell things they've purchased.

Today's roundtable discussion is the latest in a series of hearings and talks, hosted by House Judiciary Committee Chairman Bob Goodlatte, and joined by creators, innovators, technology professionals, and users of copyrighted works. Goodlatte announced in 2013 that the committee would conduct a review of U.S. copyright laws to determine whether they are still working in the digital age to reward creativity and innovation.

What:         House Judiciary Committee Roundtable Discussion on U.S. Copyright Laws
Who:          EFF Staff Attorney Kit Walsh
When:        Monday, Nov. 9, 2015, 2 p.m.
Where:       Santa Clara University
                 Locatelli Center
                 500 El Camino Real
                 Santa Clara, California
Contact:     Kit Walsh, Staff Attorney

This edited press release was provided by the Electronic Frontier Foundation, a nonprofit group which advocates for innovators and users of technology. The article has been licensed under the Creative Commons Attribution License.

November 6, 2015

Indiana E-Filing Extended to Indiana Supreme Court and Court of Appeals


Indianapolis, Indiana - Chief Justice Loretta Rush of the Indiana Supreme Court today signed an order extending e-filing.

In July, the Indiana E-filing System ("IEFS") commenced in Indiana's state courts with a pilot program in Hamilton County. That program extends to filings with the Indiana Supreme Court and Court of Appeals effective Monday, November 9, 2015.

E-filing via IEFS will be required for all filings for appeals "in which: (a) either the Indiana Public Defender or the Marion County Public Defender, on one side, and the Attorney General of Indiana, on the other side, represent the parties to the appeal; and (b) the Notice of Appeal has already been conventionally filed."

Other appeals for which a Notice of Appeal have been conventionally filed may submit filings through the IEFS but are not yet required to do so. The court's plan is to require electronic filing in all Indiana state courts by the end of 2018.

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November 5, 2015

Copyright Law: Copyright Office Publishes DMCA Exemption Rule


The U.S. Copyright Office, a part of the Library of Congress, issued a final rule adopting exemptions to the provision of the Digital Millennium Copyright Act ("DMCA") that prohibits circumvention of technological measures that control access to copyrighted works.

The DMCA was enacted in 1998 to implement various elements of copyright-related World Intellectual Property Organization treaties. Included in the DMCA was a prohibition against circumventing technological measures employed by or on behalf of copyright owners to protect access to their works. The DMCA also provided for exemptions to this prohibition, which are issued by the Librarian of Congress following a rulemaking proceeding. In the course of this proceeding, the Librarian determines which "noninfringing uses by persons who are users of a copyrighted work are, or are likely to be, adversely affected by the prohibition against circumvention in the succeeding three-year period" and, through the final rule, exempts that class from the prohibition for that three-year period.

Under the DMCA, this final rule must consider "(i) the availability for use of copyrighted works; (ii) the availability for use of works for nonprofit archival, preservation, and educational purposes; (iii) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research; (iv) the effect of circumvention of technological measures on the market for or value of copyrighted works; and (v) such other factors as the Librarian considers appropriate."

The final rule became effective October 28, 2015.

Practice Tip: The prohibition against accessing protected copyrighted works, even when that access is noninfringing, has been criticized for having unintended consequences, such as facilitating the concealment by Volkswagen of the pollution that some of its vehicles produce.

November 4, 2015

176 Trademark Registrations Issued to Indiana Companies in October 2015

The U.S. Trademark Office issued the following  176 trademark registrations to persons and businesses in Indiana in October 2015 based on applications filed by Indiana trademark attorneys:

Registration No.  Word Mark Click To View
4840310 3X LIVE

Continue reading " 176 Trademark Registrations Issued to Indiana Companies in October 2015" »

November 3, 2015

Patent Office Issues 186 Patents To Indiana Citizens in October 2015

The U.S. Patent Office issued the following 186 patent registrations to persons and businesses in Indiana in October 2015, based on applications filed by Indiana patent attorneys:

PAT. NO. Title
1 D741,984 Faucet handle
2 D741,940 Camera mount
3 D741,694 Robe hook
4 D741,682 Pull me up
5 9173041 Enhancing perception of frequency-lowered speech
6 9170912 System and methods for power and energy modeling in computing devices using system call tracing
7 9170583 Firefighting monitor and control system therefor
8 9170579 System, method and computer program product for monitoring and controlling industrial energy equipment
9 9170231 Quantification and characterization of allergens
10 9170065 Pocket hunting system
11 9170057 Evacuated tubes for solar thermal energy collection
12 9169921 Double transition shift control in an automatic powershifting transmission
13 9169784 Processing system and method for calculating pressure decreases due to injection events in a high-pressure fuel system
14 9169669 Lock status indicator

Continue reading "Patent Office Issues 186 Patents To Indiana Citizens in October 2015" »

October 30, 2015

U.S. Supreme Court to Hear Patent Infringement Litigation Involving Indiana-Based Zimmer


Washington, D.C. -The United States Supreme Court has agreed to hear appeals in two separate lawsuits, Halo Electronics, Inc. v. Pulse Electronics, Inc., et al., Case No. 14-1513, and Stryker Corp, et al. v. Zimmer, Inc., et al., Case No. 14-1520, on the issue of willfulness as a prerequisite for awarding enhanced damages in patent infringement litigation. The two cases were consolidated.

Under 35 U.S.C. § 284 of the Patent Act, a district court "may increase ... damages up to three times the amount found or assessed." Despite this language, which on its surface is permissive and discretionary, the Federal Circuit imposes a stricter test. For a district court to award enhanced damages under § 284, this test requires that a patentee prove by clear and convincing evidence that infringement was "willful." A determination of willfulness requires a finding of both (1) an objectively high likelihood that the infringer's actions constituted infringement, and (2) that this likelihood was either known or so obvious that it should have been known to the accused infringer.

The questions presented to the Supreme Court are:

1. Has the Federal Circuit improperly abrogated the plain meaning of 35 U.S.C. § 284 by forbidding any award of enhanced damages unless there is a finding of willfulness under a rigid, two-part test, when this Court recently rejected an analogous framework imposed on 35 U.S.C. § 285, the statute providing for attorneys' fee awards in exceptional cases?

2. Does a district court have discretion under 35 U.S.C. § 284 to award enhanced damages where an infringer intentionally copied a direct competitor's patented invention, knew the invention was covered by multiple patents, and made no attempt to avoid infringing the patents on that invention?

The Court granted motions by Independent Inventor Groups and Nokia Technologies OY, et al. to file briefs as amici curiae.

Practice Tip: In December 2014, the Federal Circuit overturned the decision of the Western District of Michigan to triple the damages awarded to Stryker, reducing the amount from $228 million to $70 million.

Continue reading "U.S. Supreme Court to Hear Patent Infringement Litigation Involving Indiana-Based Zimmer" »

October 29, 2015

Seventh Circuit News: Judge Tinder Retires from Federal Bench

Indianapolis, Indiana - Earlier this month, Judge John Tinder officially retired from the United States Court of Appeals for the Seventh Circuit, stepping down after more than 30 years of federal service.

Judge Tinder, a jurist who once described himself as a person with "too many hobbies" but "not enough time," officially retired from the bench in early October. The announcement of his retirement inadvertently came not through the usual channels, but rather via a letter that he wrote in response to an unsolicited application that he received from someone seeking employment as a law clerk. In his reply, Judge Tinder wrote, "Thank you for applying for a clerkship with me. Your credentials are outstanding. However, I recently decided that I will be leaving the court in 2015 so I will not be hiring any additional clerks...." That letter was leaked to, which broke the news of Judge Tinder's impending retirement.

A lifelong resident of Indiana, Judge Tinder received both his undergraduate degree and law degree from the Indiana University - Bloomington. Prior to his appointment to a federal judgeship, he served as an Assistant United States Attorney for the Southern District of Indiana and, later, as the United States Attorney for the Southern District. In addition, he had engaged in the private practice of law in Indianapolis, had served as the Chief Trial Deputy for the Marion County Prosecutor's Office and had been a public defender for the Criminal Division of the Superior Court of Marion County. Judge Tinder also taught as an adjunct professor at the Indiana University School of Law.

Judge Tinder was nominated as a District Court Judge for the Southern District of Indiana by President Ronald Reagan and was appointed in September 1987. After twenty years of service as a trial judge, Judge Tinder was nominated to the United States Court of Appeals for the Seventh Circuit by President George W. Bush in 2007. He was confirmed by a vote of 93-0.

Described by former law clerks as "an extremely nice and easy-going person" with "a great sense of humor," Judge Tinder has shared some possible post-retirement activities: public interest advocacy, arbitration, and extended travel.

October 27, 2015

Indiana Intellectual Property Litigation: Roche Seeks Declaration of Non-Infringement of Meso's Rights to ECL Technology


Indianapolis, Indiana - Indiana intellectual property attorneys for Plaintiff Roche Diagnostics Corporation of Indianapolis, Indiana filed a lawsuit in the Southern District of Indiana asking for a declaration of non-infringement of rights to patented technology licensed to Defendant Meso Scale Diagnostics, LLC of Rockville, Maryland.

At issue in this patent-related lawsuit is the right to use patented Electrochemiluminescence ("ECL") technology owned by BioVeris Corporation. ECL is a detection technology that uses electricity, chemistry and light to detect and measure the presence of specific molecules in a test sample. It is used to detect, monitor, and guide the treatment of disease and other conditions.

In 1995, BioVeris licensed its ECL technology to Defendant Meso. Under this license, Meso was granted an exclusive license to use ECL technology for certain limited purposes. BioVeris later entered licensing agreements granting Roche Diagnostics use of ECL technology. Meso contends that Roche Diagnostics' use of BioVeris' ECL technology constitutes a violation of the exclusive rights granted to Meso. Roche Diagnostics asserts that its use does not violate Meso's rights under the Meso license and that, while Meso was not a party to the first agreement licensing the ECL technology to Roche Diagnostics, executed in 2003, Meso expressly consented to that entire agreement. A second agreement licensing the technology was executed between BioVeris and Roche Diagnostics in 2007.

In 2013, a related dispute between Miso and Roche Diagnostics in Delaware state court was resolved in favor of Roche Diagnostics after a five-day bench trial. That judgment was affirmed by the Delaware Supreme Court in June 2015. Roche Diagnostics claims that, this concluded lawsuit notwithstanding, Meso continues to assert that Roche Diagnostics' activities infringe Meso's rights and continues to threaten litigation.

Indiana patent lawyers for Roche Diagnostics filed this action for declaratory judgment seeking a judgment declaring that it has not infringed Meso's license rights in the ECL technology. Roche also seeks an award of attorney's fees and costs.

Practice Tip: Because the validity of the BioVeris' patents is not in dispute, and because Roche Diagnostics concedes that some of its products include BioVeris' patented ECL technology, BioVeris was not included as a party in this lawsuit.

Continue reading "Indiana Intellectual Property Litigation: Roche Seeks Declaration of Non-Infringement of Meso's Rights to ECL Technology " »

October 26, 2015

Indiana Patent Litigation: German Lawyers and Law Firm Sued on Allegations of Misappropriation of Intellectual Property


South Bend, Indiana - An Indiana patent attorney for Plaintiffs Never Lost Golf, LLC of South Bend, Indiana; Michael Carnell, a domiciliary of California who resides in Berlin, Germany and who does business as The Never Lost Golf Tee Saver and The Never Lost Golf Tee Saver Mat System ("NLG"); and Teresa O'Keefe and Grant Holloway, Trustees for the N.L.G. Living Trust filed a lawsuit in the Northern District of Indiana alleging infringement of NLG's German Patent A63B 57/100, which has been filed with the German Patent Office. Patent protection for NLG has also been sought with the U.S. Patent and Trademark Office.

Three Defendants in this litigation, Maia Steinert, Chrisoph Stephan and Ralf Menwegen, are partners and/or members of Steinert & Stephan, a German law firm. Steinert has been accused by Plaintiffs of "aggregious [sic] conduct in asserting ownership interest in the NLG German patent." Stephan and Menwegen were accused of having been "involved in the patent process."

Carnell contends that he retained Steinert & Stephan in 2010 to represent him in filing for a German patent for the Never Lost Golf product. He adds in his complaint that any intellectual property rights obtained by these filings were supposed to accrue to him alone. Carnell asserts that, subsequent to hiring the Steinert & Stephan and utilizing their services in pursuit of a German patent, Steinert applied for a Never Lost Golf patent with the United States Patent and Trademark Office. This filing, states Carnell, includes an assertion by Steinert that she was the sole owner of the patent rights associated with the NLG product. He states that her actions demonstrate an attempt to illegally claim rights to intellectual property that she knew was not hers, both in the United States and in Germany.

Two additional Defendants, Markus Schumann and Harribert Pamp, have been named as co-conspirators. Plaintiffs contend that they conspired with Steinert to commit fraud and perjury in support of Steinert's assertion of ownership in NLG's German patent.

Defendants seek equitable relief along with damages, costs and attorney fees.

Continue reading "Indiana Patent Litigation: German Lawyers and Law Firm Sued on Allegations of Misappropriation of Intellectual Property" »

October 23, 2015

International Intellectual Property Law: Intellectual Property and the Trans-Pacific Partnership Agreement


On October 4, 2015, Ministers of the 12 Trans-Pacific Partnership ("TPP") countries - Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States, and Vietnam - announced conclusion of their negotiations. The result is an agreement that has been promoted as enhancing economic growth; supporting the creation and retention of jobs; enhancing innovation, productivity and competitiveness; raising living standards; reducing poverty; and promoting transparency, good governance, and enhanced labor and environmental protections.

TPP's chapter regarding intellectual property ("IP") covers patents, trademarks, copyrights, industrial designs, geographical indications, trade secrets, other forms of intellectual property, and enforcement of intellectual property rights, as well as areas in which participating countries agree to cooperate. The IP chapter will make it easier for businesses to search, register, and protect IP rights in new markets, which is particularly important for small businesses.

The chapter establishes standards for patents, based on the World Trade Organization's ("WTO") agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS"), and international best practices. On trademarks, it provides protections of brand names and other signs that businesses and individuals use to distinguish their products in the marketplace. The chapter also requires certain transparency and due process safeguards with respect to the protection of new geographical indications, including for geographical indications recognized or protected through international agreements. These include confirmation of understandings on the relationship between trademarks and geographical indications, as well as safeguards regarding the use of commonly used terms.

In addition, the chapter contains pharmaceutical-related provisions that are promoted as facilitating both the development of innovative medicines and the availability of generic medicines, taking into account the time that various participating countries may need to meet these standards. The chapter includes commitments relating to the protection of undisclosed test and other data submitted to obtain marketing approval of a new pharmaceutical or agricultural-chemicals product. It also reaffirms participating countries' commitment to the WTO's 2001 Declaration on the TRIPS Agreement and Public Health, and in particular confirms that participating countries are not prevented from taking measures to protect public health, including in the case of epidemics such as HIV/AIDS.

In copyright, the IP chapter establishes commitments requiring protection for works, performances, and phonograms such as songs, movies, books, and software, and includes provisions on technological protection measures and rights management information. As a complement to these commitments, the chapter includes an obligation for participating countries to continuously seek to achieve balance in copyright systems through, among other things, exceptions and limitations for legitimate purposes, including in the digital environment. The chapter requires participating countries to establish or maintain a framework of copyright safe harbors for Internet Service Providers ("ISPs"). These obligations do not permit participating countries to make such safe harbors contingent on ISPs monitoring their systems for infringing activity.

Finally, countries participating in the TPP agree to provide strong enforcement systems, including, for example, civil procedures, provisional measures, border measures, and criminal procedures and penalties for commercial-scale trademark counterfeiting and copyright or related rights piracy. In particular, countries participating in the TPP will provide the legal means to prevent the misappropriation of trade secrets, and establish criminal procedures and penalties for trade secret theft, including by means of cyber-theft, and for cam-cording.

Practice Tip: Some provisions of the TPP, including protection for biological drugs, have been the subject of considerable controversy. For an interesting discussion of some of these issues, see here.
October 21, 2015

Northern District Transfers Copyright Infringement Litigation for Lack of Venue


Fort Wayne, Indiana - District Judge Jon E. DeGuilio of the United States District Court for the Northern District of Indiana transferred a lawsuit alleging copyright to the Southern District of Indiana, citing a lack of venue in the Northern District.

In this litigation, Angela E. Brooks-Nwenga, acting pro se, alleges that The Mind Trust, United Way of Central Indiana, Central Indiana Education Alliance, Phalen Leadership Academies and Indianapolis Public Schools, all of Indianapolis, Indiana, infringed her copyright work, "Transitioning Into Responsible Students." Among the wrongdoings asserted are infringement involving Defendants' use of "Bridges To Success Education School Model" and "Phalen Leadership Academies School Model"

This copyright lawsuit was filed in the Northern District of Indiana, with Brooks-Nwenga acting as her own copyright attorney. The court ordered Plaintiff to show cause why the litigation should not be transferred to the Southern District of Indiana. Brooks-Nwenga argued to the court that she lived in Fort Wayne, Indiana, but the court was not persuaded by this, noting that the statute governing venue in a federal lawsuit, 28 U.S.C. § 1391(b), provides that:

a civil action may be brought in:

(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or

(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.

None of these criteria applied to this litigation. Brooks-Nwenga also contended that her prior litigation in the Southern District of Indiana had been excessively delayed and that her lawsuit had not received a fair and unbiased hearing. The court was similarly unswayed by this argument, stating that the court would "not hear appeals from other district courts."

Finally, the court noted that, while venue in the Northern District was improper, "a substantial part, if not all, of the events or omissions giving rise to Ms. Brooks-Ngwenya's claim seem to have occurred in the Southern District of Indiana." Consequently, the court ordered the litigation transferred.

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October 19, 2015

Indiana Copyright Law: Court Holds That It Lacks Personal Jurisdiction Over Nebraska Copyright Defendant


Indianapolis, Indiana - The Southern District of Indiana held that copyright Defendant Rural Media Group Inc. of Gretna, Nebraska was subject to neither general nor specific personal jurisdiction and dismissed the copyright infringement lawsuit against it.

Plaintiff Larry Philpot of Indianapolis, Indiana is a professional photographer. He photographed Willie Nelson during a music concert in St. Louis, Missouri. Plaintiff Philpot later registered the photograph with the United States Copyright Office. He also licensed the photograph to be used by others under the terms of the Creative Commons Attribution 2.0 Generic License.

This lawsuit, filed by Philpot acting as his own copyright attorney, was brought when he learned that Defendant had allegedly published the copyrighted photograph on its website, In the lawsuit, Philpot contended that Defendant had infringed Plaintiff's copyright by the unlicensed publication of the Nelson photograph. Philpot argued that the court could exercise both general and personal jurisdiction over Defendant.

In contrast, Defendant asked the Southern District of Indiana to dismiss the lawsuit for lack of personal jurisdiction, asserting via a declaration of one of its corporate officers that it "does not own, lease, occupy, or use any real or personal property in Indiana[,] . . . maintain an office in Indiana, maintain a registered agent in Indiana, maintain a bank account in Indiana, or pay taxes in Indiana" and that its "website and Facebook page do not specifically target the Indiana market, but rather target a mass national audience."

District Judge William T. Lawrence granted the motion to dismiss. On the issue of general jurisdiction, the court noted that "Defendant is a Delaware corporation with its principal place of business located in Gretna, Nebraska. Its only other office is located in Nashville, Tennessee." The court stated that "general jurisdiction exists only when the [party's] affiliations with the State in which suit is brought are so constant and pervasive as to render it essentially at home in the forum State"; it added that the prior standard of "substantial, continuous, and systematic course of business" was insufficient. Under the controlling jurisprudence, handed down by the U.S. Supreme Court in the 2014 case Daimler AG v. Bauman, such constant and pervasive contacts are, except in rare cases, present under only two circumstances: when the proposed forum state is the corporation's principal place of business or its state incorporation. As neither of these conditions was met, and as this was not an exceptional case which might warrant a deviation from the standard rule, general jurisdiction was held to be improper.

The court held that an exercise of specific jurisdiction, a less stringent standard than general jurisdiction, would also be improper. While specific jurisdiction can be found where a defendant is accused of expressly aiming an intentional tort at the forum state, neither "express aiming" nor an intentional tort were in evidence.

The court denied several related motions by Plaintiff and granted Defendant's motion to dismiss.

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