January 19, 2016

164 Trademark Registrations Issued to Indiana Companies in December 2015

The U.S. Trademark Office issued the following 164 trademark registrations to persons and businesses in Indiana in December 2015 based on applications filed by Indiana trademark attorneys:

Registration No.  Word Mark Click To View
4877757 PERSONALIZING THE HEALTHCARE EXPERIENCE VIEW
4877580 HT VIEW
4877515 GRATITUDE VIEW
4877440 DESKINS RAPIDFLOC MIXER VIEW
4877311 VIEW
4878790 GRAND RESERVE VIEW

Continue reading " 164 Trademark Registrations Issued to Indiana Companies in December 2015" »

January 12, 2016

Indiana Trademark Law: Stratotone Guitar Co. Has Priority Date for Stratotone Trademark; Westheimer Infringed

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Fort Wayne, Indiana - District Judge Jon DeGuilo held that prior rights to the Stratotone trademark were abandoned and that the subsequent user held the superior right to the trademark.

This litigation arose as a result of a federal trademark complaint, filed in the Northern District of Indiana by Plaintiff Darryl Agler, doing business as The Stratotone Guitar Company of Fort Wayne, Indiana. The Defendant is Westheimer Corporation of Northbrook, Illinois. In the complaint, Agler asserted that Westheimer had infringed the trademark "STRATOTONE" (the "Stratotone trademark"), Trademark Registration No. 3,986,754, which has been issued by the U.S. Patent and Trademark Office.

The claims listed in Agler's complaint were:

• Count I: Federal Unfair Competition and False Designation of Origin
• Count II: Federal Trademark Infringement
• Count III: Federal Trademark Counterfeiting
• Count IV: Common Law Unfair Competition and Trademark Infringement
• Count V: Unjust Enrichment
• Count VI: Conversion
• Count VII: Deception

• Count VIII: Indiana Crime Victim's Relief Act

Westheimer counterclaimed, asserting that Agler was infringing on its rights in the Stratotone trademark as well as an additional trademark for "Atom."

In this opinion, Judge DeGuilo ruled on Agler's motion for summary judgment on counts I through IV as well as Agler's motion for summary judgment on all of Westheimer's counterclaims.

The court first addressed the Stratatone trademark. Agler asserted, and Westheimer conceded, that the Stratatone mark was protected and that Westheimer's use of the mark was likely to cause confusion. The question for the court was which party had superior rights to the mark, as determined by whether Agler or Westheimer had priority to the trademark. That priority, in turn, was determined by who had established and maintained the earliest claim to the trademark.

It was undisputed that Agler had filed an "intent-to-use" application to register the Stratotone mark on March 7, 2006. Westheimer claimed that it had acquired rights that predated Agler's 2006 application through its 2009 purchase of trademark rights from Harmony Industries, a third party that had used the Stratotone trademark at least as early as 2001.

The court, however, reviewed the testimony of those involved with Harmony Industries and found that Harmony Industries had both ceased to use the trademark and had demonstrated no intent to use it for more than four years starting at least January 1, 2003. The holder of a trademark has only three years to formulate its intent to resume use before that trademark is presumed abandoned. Thus, Harmony Industries was held to have abandoned the trademark. In turn, because Harmony Industries had no trademark rights to convey in the Stratotone mark, Westheimer acquired none. Consequently, Agler was held to have an earlier priority date and, thus, superior rights to the trademark. The court granted Agler's motion with respect to his claims, and Westheimer's counterclaims, regarding the Stratotone trademark.

Regarding the Atom trademark, the court concluded that it did not have sufficient evidence to determine that Agler had acquired priority. It thus denied Agler's motion for summary judgment with respect to the claims involving the Atom trademark.

Continue reading "Indiana Trademark Law: Stratotone Guitar Co. Has Priority Date for Stratotone Trademark; Westheimer Infringed" »

January 11, 2016

Indiana Trademark Litigation: Barrington Music Sues Guitar Center, Music & Arts and Eastman Music Alleging Infringement

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South Bend, Indiana - Indiana trademark attorneys for Plaintiff Barrington Music Products, Inc. of Niles, Michigan filed a trademark infringement lawsuit in the Northern District of Indiana. The Defendants in the litigation are Guitar Center Stores, Inc. of Westlake Village, California; Music & Arts Centers of Bel Air, Maryland, which is owned by Guitar Center; and Eastman Music Company of Pomona, California.

Plaintiff Barrington Music Products offers musical instruments, specifically featuring its "Roy

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 Benson" and "L.A. Sax" lines. Defendant Guitar Center has been in business more than 50 years and advertises itself as "the world's largest retailer of guitars, amplifiers, drums, keyboards, recording, live sound, DJ, and lighting equipment." It has more than 260 stores across the United States. Defendant Music & Arts offers musical instrument for sale, as well as offering repairs, rentals and instruction at its various locations nationwide. Defendant Eastman Music Company, which offers musical instruments globally, has been in business for more than 20 years.

The trademarks at issue in the lawsuit are U.S. Trademark Registration Nos. 3,831,402 and 3,831,403. They have been registered with the U.S. Patent and Trademark Office and cover VENTO both as a standard character trademark and as a stylized trademark.

Defendants are accused of trademark infringement, trademark dilution by blurring, unfair competition via passing off and trade name infringement of the VENTO trademark due to their marketing of wind instruments under the name "Ventus," which means "wind" in Latin. Defendant's "Vento" is Italian for "wind."

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Plaintiff contends that it is "common knowledge that the English translations of VENTUS and VENTO are the same." Plaintiff also asserts that Defendants use the Ventus mark with the intent to deceive consumers by causing them to believe that Defendants' Ventus products are related to Plaintiff's Vento products. Plaintiff claims that the use of the Ventus mark has caused, and will continue to cause, consumer confusion.

In this lawsuit, the following causes of action are alleged:

• Count I: Federal Trademark Infringement - Lanham Act (15 U.S.C. § 1114)
• Count II: Federal Unfair Competition - Lanham Act (15 U.S.C. § 1125(a))
• Count III: False Designation of Origin - Lanham Act (15 U.S.C. § 1125(a)(1)(B))
• Count IV: Federal Trademark Dilution - Lanham Act (15 U.S.C. § 1125(c))
• Count V: Trade Name Infringement under Indiana Common Law

• Count VI: Passing Off in Violation of Indiana's Unfair Competition Doctrine

Barrington seeks equitable relief along with damages, including punitive damages, costs and attorneys' fees.

Continue reading "Indiana Trademark Litigation: Barrington Music Sues Guitar Center, Music & Arts and Eastman Music Alleging Infringement" »

January 8, 2016

Patent Office Issues 201 Patents To Indiana Citizens in December 2015

The U.S. Patent Office issued the following 201 patent registrations to persons and businesses in Indiana in December 2015, based on applications filed by Indiana patent attorneys:

Patent No. Title
1 9225964 Figure-ground organization of 3-D scenes
2 9225338 System and method for removing far field limitations in microwave photonic arbitrary waveform generators
3 9225151 Spark plug for removing residual exhaust gas and associated combustion chamber
4 9223372 Energy management system
5 9222951 Calibration method for the prospective calibration of measuring equipment
6 9222878 Method and device for optical imaging with a resonant amplifier assembly
7 9222685 Method and system for controlling evaporative and heat withdrawal performance of an occupant support surface
8 9222676 Supercritical or mixed phase fuel injector
9 9222637 Lightguide with horizontal cutoff and horizontal spread
10 9222587 Oil pressure regulator

Continue reading "Patent Office Issues 201 Patents To Indiana Citizens in December 2015" »

January 6, 2016

Indiana Litigation: Vizio Accused of Spying on Users of its Smart TVs, Selling Ill-Gotten Data

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Hammond, Indiana - Plaintiff Stanley Pagorek of Dyer, Indiana filed an intellectual property lawsuit in the Northern District of Indiana alleging that Vizio, Inc. of Irvine, California and Cognitive Media Networks, Inc. of San Francisco, California monitor, track and report viewing habits and information about devices attached to home networks for profit. Pagorek seeks class-action status for this Indiana litigation.

Defendant Vizio produces and sells internet-capable televisions. It also offers audio and entertainment products, including sound bars, tablets, DVD players and Blu-ray players. Vizio has a controlling stake in Defendant Cognitive, an advertising company.

Defendants are accused of surreptitiously including tracking software on more than 10 million Vizio high-definition, internet-connected televisions (sometimes known as "smart TVs"). The functionality of the software includes Cognitive's content-recognition capabilities.

According to the lawsuit, filed by intellectual property lawyers for Pagorek and the putative class, the tracking software is activated by default, most customers would not be made aware of it in the process of setting up their TVs and, for those who were, disabling the software is less than intuitive. The software enables Vizio to monitor and identify the viewing habits of those smart TV customers. The complaint also indicates that the analysis done by the tracking software enables Vizio to infer with reasonable certainty which person is watching what programming.

That information is then provided to third-party advertisers and content providers. Those third parties are then able to customize the advertising and other content displayed to the smart TV customers not only on the Vizio smart TV, but also on any other "smart" device, such as smartphones, tablet computers, laptop computers and desktop computers, that is connected to the same internet protocol address as the Vizio smart TV.

In this complaint, the following is alleged:

• Count One: Violations of the Video Privacy Protection Act (18 U.S.C. § 2710)
• Count Two: Violation of the Prohibition of Disclosure by Persons Providing Video Recording Sales or Rentals Without Written Consent (Cal. Civ. Code § 1799.3)
• Count Three: Violation of California's Unfair Competition Law (Cal. Civ. Code § 17200, et seq.)
• Count Four: Violation of California's Consumer Legal Remedies Act (Cal. Civ. Code §§ 1750, et seq.)
• Count Five: Indiana Deceptive Consumer Sales Act (Ind. Code §§ 24-5-0.5, et seq.)
• Count Six: Unjust Enrichment
• Count Seven: Fraud by Omission
• Count Eight: Breach of the Implied Warranty of Merchantability

• Count Nine: Violation of the Electronic Communications Privacy Act (18 U.S.C. § 2511)

Plaintiff Pagorek, on behalf of himself and the other members of the proposed class, requests damages, injunctive relief, interest, attorneys' fees and costs.

Continue reading "Indiana Litigation: Vizio Accused of Spying on Users of its Smart TVs, Selling Ill-Gotten Data" »

January 5, 2016

Indiana Cable/Satellite TV Litigation: Showtime Bar and Grill Accused of Interception of Championship Fight

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Hammond, Indiana - Plaintiff Joe Hand Promotions, Inc. of Feasterville, Pennsylvania filed an intellectual property lawsuit in the Northern District of Indiana alleging unlawful interception of content protected under federal intellectual property laws. The Defendants are Whitney Chapman, individually and d/b/a Showtime Bar and Grill, and Showtime Bar & Grill LLC, also d/b/a Showtime Bar and Grill. Showtime Bar and Grill operates in Gary, Indiana.

Joe Hand is a commercial distributor of sporting events. It states that it was granted exclusive rights to distribute via closed-circuit telecast the "Ultimate Fighting Championship 168: Chris Weidman v. Anderson Silva" championship fight, which was telecast nationwide on Saturday, December 28, 2013.

In this federal lawsuit, filed by an intellectual property attorney for Plaintiff, Defendants are accused of such wrongful acts as interception, reception, publication, divulgence, display, exhibition, and tortiously converting the fight program.

In addition to naming Showtime Bar and Grill LLC, Joe Hand has also sued Chapman as an individual, asserting that she had the right and ability to supervise the activities of the establishment and that, included in those activities, was the unlawful interception of the program.

Plaintiff asserts that, in addition to conversion of the program, Defendants have violated 47 U.S.C. § 605 and 47 U.S.C. § 553. Joe Hand seeks damages, including additional damages for any violation deemed willful as well as costs and attorneys' fees.

Overhauser Law Offices, the publisher of this website, has represented several hundred persons and businesses accused of infringing satellite signals.

Continue reading "Indiana Cable/Satellite TV Litigation: Showtime Bar and Grill Accused of Interception of Championship Fight " »

January 4, 2016

Indiana Patent Litigation: Longtime Competitors in RV Market in Federal Court over Assertions of Patent Infringement

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South Bend, Indiana - Plaintiff Shower Enclosures America, Inc. of Ontario, California sued in the Northern District of Indiana alleging that BBC Distribution Corp. of Elkhart, Indiana infringed "Triple Slide Assembly for Sliding Doors," U.S. Patent No. 7,174,944, which was issued by the U.S. Patent and Trademark Office.

An Indiana patent attorney for Plaintiff Shower Enclosures America, Inc. ("SEA") filed this lawsuit alleging that Defendant BBC Distribution, LLC ("BBC") is infringing SEA's patent on a triple-slide assembly for sliding doors, a product which is cited in the complaint as particularly appropriate for use in recreational vehicles. The patent at issue is directed to "products, such as shower doors, which have three door panels mounted into a compact, two-track header which allows the panels to slide easily between open and closed positions." SEA makes and sells products that incorporate the patented invention.

BBC is accused of infringing with its "Tripass" shower door. SEA contends that the BBC product infringes at least claim 12 of the patent-in-suit either literally or under the doctrine of equivalents.

SEA requests that the court grant it equitable relief as well as damages for the alleged patent infringement.

Continue reading "Indiana Patent Litigation: Longtime Competitors in RV Market in Federal Court over Assertions of Patent Infringement" »

January 1, 2016

Indiana Copyright Litigation: Former Volunteer Sues Non-Profit for Copyright Infringement

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Indianapolis, Indiana - Indiana copyright lawyers for Plaintiff Angela Ellsworth of Huntington, Indiana filed a copyright lawsuit in the Southern District of Indiana alleging that Mission 22 a/k/a Elder Heart, Inc. of Nashville, Indiana infringed Ellsworth's copyrighted artwork, Copyright Registration No. VA1-958-239, by creating at least one unauthorized derivative work.

Plaintiff Ellsworth is a professional artist. Defendant Elder Heart is a non-profit organization that helps veterans with post-traumatic stress disorder and promotes awareness of the veteran suicide rate of 22 per day.

From October 2013 to November 3, 2014, Ellsworth volunteered to assist Defendant in its efforts. Ellsworth states that she created original art, entitled "22", that depicted the silhouettes of 22 soldiers and the shadows of those 22 silhouettes in November 2013. She indicates that she received a copyright for this artwork in April 2015.

Ellsworth claims that she donated 13 prints of a derivative of her copyrighted artwork to Defendant, including one that was specifically designated as a gift to Magnus Johnson, President and Chief Executive Officer of Defendant.

At a time unspecified in this copyright lawsuit, Defendant launched a project, "Mission 22," to raise awareness of the veteran suicide rate. Ellsworth contends that, as part of this project, Defendant designed a sculpture that knowingly and willfully copied Plaintiff's copyrighted artwork. Elder Heart also announced its intention to build the sculpture as a national monument.

In March 2015, a copyright attorney for Elder Heart contacted Ellsworth stating that, at the time that Elder Heart created the accused artwork, it was unaware of Ellsworth's artwork and that "any similarities with [Plaintiff's] artwork are a coincidence at best." Ellsworth asserts that Elder Heart's copyright counsel subsequently admitted that those statements were untrue.

This lawsuit lists a single count, copyright infringement. It asserts that "Defendant has created at least one unauthorized derivative work, violating Plaintiff's exclusive right to prepare derivative works based upon her copyrighted Artwork." Plaintiff Ellsworth seeks injunctive relief along with damages, attorneys' fees and costs.

Continue reading "Indiana Copyright Litigation: Former Volunteer Sues Non-Profit for Copyright Infringement" »

December 31, 2015

Indiana Intellectual Property Litigation: Joe Hand Alleges Interception by The Wing Company

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New Albany, Indiana - Plaintiff Joe Hand Promotions, Inc. of Feasterville, Pennsylvania filed an intellectual property lawsuit in the Southern District of Indiana. The Defendants are two individuals, Darlene Vicars and Leann Richardson, and an entity, The Wing Company, LLC. Each of the Defendants is alleged to do business as The Wing Company of Sunman, Indiana. Vicars and Richardson have been sued both individually and d/b/a The Wing Company.

At issue in this latest Indiana interception lawsuit commenced by an intellectual property lawyer for Joe Hand is the alleged unlawful interception of the "Ultimate Fighting Championship 168: Chris Weidman v. Anderson Silva," which was telecast nationwide on Saturday, December 28, 2013.

Plaintiff Joe Hand claims that it holds exclusive domestic rights to the commercial distribution of this championship fight program and that Defendants have deprived it of the "commercial license fee to which Plaintiff was rightfully entitled to receive" by showing the program without having purchased a commercial license from Plaintiff.

In this federal lawsuit, the following claims are made:

• Count I: Violation of Title 47 U.S.C. Section 605
• Count II: Violation of Title 47 U.S.C. Section 553

• Count III: Conversion

Joe Hand seeks statutory damages, including additional damages for willful violations. Costs and attorney's fees are also sought.


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December 29, 2015

Indiana Law: Southern District of Indiana Implements Changes

Changes to Delivery of E-mailed Notices of Electronic Filing (NEFs)

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Effective January 4, 2016, the United States District Court for the Southern District of Indiana will implement important new changes in the delivery of e-mailed Notices of Electronic Filing ("NEFs"). The court's CM/ECF system will begin generating NEFs for both docketed and e-filed events in sealed cases and for sealed entries in non-sealed cases. For more information, click here.

Sealed filings are governed by Local Rule 5-11 and Local Criminal Rule 49.1-2. Attorney e-filers are encouraged to review updates to the court's ECF Policies and Procedures Manual (Sections 11 and 18), which address changes in service requirements for sealed filings.

For more information, a helpful Technical Guide for Using Notices of Electronic Filing (NEFs) is available on the E-Filing Resources page of the court's website. It contains detailed procedures on accessing documents from sealed/redacted NEFs.

Increase to Attorney Admission Fees

Effective January 1, 2016, the attorney admission fees to the United States District Court for the Southern District of Indiana will increase as follows:

1. Attorney Admission to Practice fee will increase from $186 to $226.

2. Pro Hac Vice Motion fee will increase from $30 to $100, per case, per attorney.

For more information, click here.

December 28, 2015

Federal Trademark Law: Lanham Act Ban on Disparaging Trademark Registrations Is Unconstitutional

The Lanham Act's ban on registering disparaging marks violates the First Amendment of the Constitution held the Federal Circuit, sitting en banc, on December 22, 2015. In re Tam, en banc Fed. Cir., No. 2014-1203, oral argument 12/22/2015.

In a case involving the refusal to register the term "The Slants" for a group of Asian musicians, the court concluded that the disparagement provision of the Lanham Act is used to reject trademarks based on their content and viewpoint, and that denying the benefit of registration on this basis is an unlawful burden on free speech.

Background

After the U.S. Patent and Trademark Office refused to register the "The Slants" mark as disparaging under Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), the applicants appealed to the Federal Circuit. The Federal Circuit panel affirmed based on In re McGinley, 660 F.2d 481 (CCPA 1981), which found no First Amendment violation since the applicant was free to use the mark without the registration.

However, Judge Moore, in her "additional views," said that McGinley should be reconsidered by the en banc in light of current First Amendment jurisprudence stating that the government may not deny a benefit based solely on a moral judgment about the viewpoint expressed by a mark. The Federal Circuit granted en banc review on whether Section 2(a) violates the First Amendment.

Disparagement Provision Is Neither Content Nor Viewpoint Neutral

It is beyond dispute that Section 2(a) discriminates on the basis of content and viewpoint to the extent that it denies registration on the basis of the idea or message expressed, the court held. It rejected the government's argument that the provision calls for rejection of marks based on particular words rather than viewpoints. Judge Moore pointed out that an applicant can register a mark if he shows it is perceived by the referenced group in a positive way, even if the mark contains language that would be offensive in another context.

Nor can the government avoid strict scrutiny of the provision by contending that it simply regulates commercial speech, Judge Moore continued. While trademarks have a commercial function as source identifiers, she explained, it is always a mark's expressive character that is the basis for the disparagement exclusion from registration, not its ability to serve as a source identifier.

The en banc court expressly overruled In re McGinley, rejecting the argument that denial of a trademark registration does not prohibit use of the trademark. Citing Perry v. Sindermann, 408 U.S. 593(1972), Judge Moore pointed out that, by denying the government benefit based on constitutionally protected speech, a government could penalize and inhibit that freedom. She wrote the following:

Federal trademark registration brings with it valuable substantive and procedural rights unavailable in the absence of registration. These benefits are denied to anyone whose trademark expresses a message that the government finds disparages any group, Mr. Tam included. The loss of these rights, standing alone, is enough for us to conclude that § 2(a) has a chilling effect on speech. Denial of federal trademark registration on the basis of the government's disapproval of the message conveyed by certain trademarks violates the guarantees of the First Amendment.

Government Speech and Government Subsidy

The court also rejected the contention that trademark registration is government speech and therefore beyond the terms of the First Amendment. While registered trademarks are recorded on a government database, that doesn't convert the underlying speech to government speech any more that copyright registration converts copyrighted works into government speech, Judge Moore noted. "If being listed in a government database or published in a list of registrations were enough to convert private speech to government speech, nearly every action the government takes--every parade permit granted, every property title recorded, every hunting or fishing license issued--would amount to government speech," she wrote.

Nor was the Federal Circuit persuaded that the provisions of Section 2(a) set out a variety of legitimate conditions for providing the government subsidy of trademark registration, pointing out that the availability of government subsidies may not be limited by unconstitutional conditions. While Congress is entitled to define the conditions under which it extends government benefits, the court noted that the denial of registration has a major chilling effect on private speech because the benefits of registration are so substantial.

Judge Moore added the following:

Were we to accept the government's argument that trademark registration is a government subsidy and that therefore the government is free to restrict speech within the confines of the trademark program, it would expand the "subsidy" exception to swallow nearly all government regulation. In many ways, trademark registration resembles copyright registration. Under the logic of the government's approach, it follows that the government could refuse to register copyrights without the oversight of the First Amendment. Congress could pass a law prohibiting the copyrighting of works containing "racial slurs," "religious insults," "ethnic caricatures," and "misogynistic images."

Judge O'Malley filed a concurring opinion, writing separately to argue that Section 2(a) is unconstitutionally vague under the Fifth Amendment.

Judge Dyk filed a concurring and dissenting opinion, arguing that the majority goes too far in concluding that the statute is facially unconstitutional as applied to purely commercial speech.

Judge Lourie filed a dissenting opinion, explaining that he would apply stare decisis to sustain Section 2(a).

Judge Reyna filed a dissenting opinion, arguing that Section 2(a) is an appropriate regulation of commercial speech.

Practice Tip: The availability of trademark protection for the Washington Redskins trademark, which was also denied federal trademark protection on the grounds that it was disparaging, is currently under review by the Fourth Circuit Court of Appeals.

Continue reading "Federal Trademark Law: Lanham Act Ban on Disparaging Trademark Registrations Is Unconstitutional" »

December 23, 2015

Indiana Patent Law: Motion in Limine to Bar Evidence Regarding Inequitable Conduct Denied

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Evansville, Indiana - District Judge Richard L. Young, writing for the Southern District of Indiana in the matter of Berry Plastics Corp. v. Intertape Polymer Corp., denied Berry's motion in limine to prohibit Intertape from proffering testimony or evidence at trial which referred to reliance on counsel or good faith in prosecuting the patent applications for U.S. Patent No. 7,476,416 (the "'416 patent").

Plaintiff Berry Plastics Corp. of Evansville, Indiana filed a patent infringement lawsuit against competitor Intertape Polymer Corp., which owns the '416 patent. The court held a jury trial from November 3, 2014 to November 17, 2014.

The issue of Berry's inequitable conduct claim against Intertape, which is headquartered in Montreal, Canada, remained unresolved after the jury trial and was set for a subsequent bench trial. To prevail on this claim, Berry would need to prove "by clear and convincing evidence that Intertape knew of a prior art reference, knew that it was material, and made a deliberate decision to withhold it."

Prior to the trial on this claim, Plaintiff filed a motion in limine seeking to prohibit Defendant from proffering testimony or evidence at the bench trial that referred to reliance on counsel or good faith in prosecuting patent applications for the '416 patent. Full discovery regarding those issues had previously been denied to Berry and Berry argued to the court that it would unfairly prejudice its interests to deny it full discovery, yet leave open the possibility that Intertape would raise those defenses at trial.

The court denied Berry's motion, noting three facts relevant to that decision. First, Defendant Intertape had indicated that it would not assert advice of counsel and counsel's good faith during the bench trial. Second, the witnesses relevant to the defenses would not be called at the trial. And, finally, the court noted that it had already ruled that "the testimony upon which Berry bases its motion (and testimony strikingly similar to it) does not amount to an assertion of the defenses of reliance on advice of counsel or counsel's good faith."

Continue reading "Indiana Patent Law: Motion in Limine to Bar Evidence Regarding Inequitable Conduct Denied" »

December 21, 2015

Indiana Trademark Litigation: Indiana Botanic Gardens Sues VitalMax Vitamins Alleging Infringing Use of "Accu-Hear"

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Hammond, Indiana - Plaintiff Indiana Botanic Gardens, Inc. of Hobart, Indiana filed a trademark infringement lawsuit in the Northern District of Indiana alleging that Almark Products, Inc. d/b/a VitalMax Vitamins ("VitalMax") of Delray Beach, Florida infringed its trademarked "ACCU HEAR", U.S. Trademark No. 3,010,289, which has been registered with the U.S. Patent and Trademark Office.

Indiana Botanic allege that it has been in the business of processing, packaging and otherwise selling variety of herbal products for many years. It contends that it has done so under the ACCU HEAR trademark, which has been registered for use in connection with dietary supplements.

In this trademark litigation, Indiana Botanic accuses Defendant VitalMax of production, labeling, sale and offering for sale of a nutritional supplement offered under the name ACCU-HEAR. This term, Indiana Botanic states, is confusingly similar to Plaintiff's ACCU HEAR trademark and will irreparably harm Plaintiff by diminishing the reputation and goodwill of that trademark. Indiana Botanic asserts that VitalMax infringed the ACCU HEAR trademark willfully and deliberately.

In this federal complaint, filed by a trademark attorney for Indiana Botanic, the following is alleged:

• Count I: Federal Trademark Infringement

• Count II: Unfair Competition Under Federal Law

The "Jurisdiction and Venue" section of this federal complaint lists additional claims - "state trademark infringement, injury to business reputation and dilution, deceptive trade practices, deceptive business practices and unfair competition under the laws of the State of Indiana" - but those claims were not included as separate counts.

Indiana Botanic seeks equitable relief along with damages, including punitive damages, costs and attorneys' fees.

Continue reading "Indiana Trademark Litigation: Indiana Botanic Gardens Sues VitalMax Vitamins Alleging Infringing Use of "Accu-Hear" " »

December 18, 2015

Indiana Copyright Law: District Court Terminates Copyright Suit Over Photo; Plaintiff Appeals

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Chicago, Illinois - One of the copyright lawsuits of Plaintiff Richard N. Bell of McCordsville, Indiana has been terminated by the trial court. Bell filed an appeal on multiple grounds with the United States Court of Appeals for the Seventh Circuit.

This Indiana lawsuit alleged copyright infringement of a photo that Bell, an Indiana copyright lawyer and professional photographer, took and copyrighted. The photo, U.S. Copyright Registration No. VA0001785115, was of the Indianapolis skyline. Bell has sued numerous Defendants alleging copyright infringement of this photo. In this lawsuit, the Defendants were Cameron Taylor, Taylor Computer Solutions, Insurance Concepts, Fred O'Brien, and Shanna Cheatham, all of Indianapolis, Indiana.

On December 4, 2015, District Judge Tanya Walton Pratt of the Southern District of Indiana entered a final judgment in favor of all Defendants and terminated the case. Within days, Bell appealed to the Seventh Circuit. Bell contends that the district court acted improperly regarding:

• The district court's opinion, order and final judgment granting summary judgment in favor of the Defendants;
• The denial of "Plaintiff's Second Motion to Compel and sanctions against Defendants for failing to answer Interrogatories and product [sic] requested documents ... on October 16, 2013" as well as his "appeal to the District Judge" on June 9, 2014 regarding that motion;
• The denial of "Plaintiffs [sic] Motion for Leave to File Fourth Amended Complaint";
• The denial of an additional motion to compel and for sanctions;
• The district court's ruling on partial summary judgment;
• The district court's ruling on "Bell's Motion to Relieve Plaintiff from Orders of the Court"; and

• The district court's entry of final judgment against Bell.

Practice Tip: This is not the first time Bell has appealed in this litigation. We blogged about a prior appeal to the Seventh Circuit wherein Bell, after appealing, then argued that his appeal was premature and should not yet be heard by the appellate court.

Continue reading "Indiana Copyright Law: District Court Terminates Copyright Suit Over Photo; Plaintiff Appeals" »

December 17, 2015

Patent Law: Patent Litigation May Be Impacted by Amendments to Federal Rules of Civil Procedure

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Washington, D.C. - The United States Supreme Court ordered the Federal Rules of Civil Procedure to be amended following last year's approval of the changes by the Judicial Conference Advisory Committee. Civil Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55 and 84, and the Appendix of Forms were affected by this change. The revisions took effect on December 1, 2015.

These changes may affect patent litigation at the trial court level. Most relevantly, Rule 84, "Forms," was abrogated. That change, in turn, eliminated the Appendix of Forms, including Form 18, which had provided a basic sample complaint outlining what constituted a sufficient allegation of direct patent infringement. Rule 84 had provided that the "forms contained in the Appendix of Forms are sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate."

Practice Tip: It appears that the abrogation of Rule 84 will modify the pleading standard for patent litigation, raising it to the higher standard set forth by the Supreme Court in Twombly and Iqbal. It is unclear how federal courts will interpret these revisions. Consequently, Indiana patent attorneys, and especially patent litigators, would be wise to keep abreast of rulings on motions to dismiss for failure to state a claim under Rule 12(b)(6) as well as motions for a more definite statement under Rule 12(e) as the contours of the revised pleading standard in the context of patent infringement litigation are clarified.

Continue reading "Patent Law: Patent Litigation May Be Impacted by Amendments to Federal Rules of Civil Procedure " »