June 12, 2014

Indiana Intellectual Property Litigation: J & J Sports Sues Again Asserting Illegal Cable Signal Interception

Hammond, Indiana - An intellectual property attorney for J & J Sports Productions, Inc.250px-Pacquiao_vs_Bradleypicture.jpg ("J & J Sports") of Campbell, California sued Sheila M. Kikalos individually and d/b/a Valla Del Sol a/k/a Villa Del Sol of Merrillville, Indiana in the Northern District of Indiana alleging the illegal interception and broadcast of Manny Pacqiao v. Timothy Bradley, WBO World Welterweight Championship Fight Program (the "Program"), which was telecast nationwide on June 9, 2012.

J & J Sports states that it is the exclusive domestic commercial distributor of the Program. It has sued Sheila M. Kikalos individually and d/b/a Villa Del Sol, under the Communications Act of 1934 and The Cable & Television Consumer Protection and Competition Act of 1992.

Specifically, Kikalos has been accused of violating 47 U.S.C. § 605 and 47 U.S.C. § 553 by displaying the Program without a commercial license on the day of its broadcast. Regarding the claim under 47 U.S.C. § 605, the complaint alleges that with "full knowledge that the Program was not to be intercepted, received, published, divulged, displayed, and/or exhibited by commercial entities unauthorized to do so, each and every one of the above named Defendants . . . did unlawfully intercept, receive, publish, divulge, display, and/or exhibit the Program" for the purpose of commercial advantage and/or private financial gain.

A count of conversion is also included in the complaint. It asserts that the alleged acts of interception and exhibition were "willful, malicious, egregious, and intentionally designed to harm Plaintiff J & J Sports" and that, as a result of being deprived of their commercial license fee, J & J Sports suffered "severe economic distress and great financial loss."

As there appears to be no separate legal entity, the lone defendant is Kikalos, who has been named both individually and doing business as Villa Del Sol. As an individual, J & J Sports asserts that Kikalos is responsible for the alleged unlawful activity, contending that she had the right and ability to supervise the activities of the establishment. J & J Sports asserts that the activities that she supervised included the unlawful interception of Plaintiff's program. J & J Sports contends that Kikalos specifically directed the employees of Villa Del Sol to unlawfully intercept and broadcast Plaintiff's program at Villa Del Sol and Grill or, if she did not, that the actions of the employees of Villa Del Sol are directly imputable to Kikalos by virtue of her purported responsibility for the activities of the restaurant.

J & J Sports further asserts that Kikalos as an individual specifically identified on the liquor license for Villa Del Sol, had an obvious and direct financial interest in the activities of Villa Del Sol.

In the complaint, the intellectual property lawyer for J & J Sports listed the following counts and requests for redress:

• Count I: Violation of Title 47 U.S.C. § 605. For this count, J & J Sports requests (a) statutory damages for each willful violation in an amount to $100,000.00 pursuant to Title 47 U.S.C. 605(e)(3)(C)(ii), and (b) the recovery of full costs, including reasonable attorneys' fees, pursuant to Title 47 U.S.C. § 605(e)(3)(B)(iii).
• Count II: Violation of Title 47 U.S.C. § 553. For this count, J & J Sports asks the court for (a) statutory damages for each violation in an amount to $10,000.00 pursuant to Title 47 U.S.C. § 553(c)(3)(A)(ii); (b) statutory damages for each willful violation in an amount to $50,000.00 pursuant to Title 47 U.S.C. § 553(c)(3)(B); (c) the recovery of full costs pursuant to Title 47 U.S.C. § 553 (c)(2)(C); and (d) and in the discretion of the court, reasonable attorneys' fees, pursuant to Title 47 U.S.C. § 553 (c)(2)(C).
• Count III: Conversion. For this count, the court is requested to order both compensatory and punitive damages from Defendants as the result of the Defendants' allegedly egregious conduct, theft, and conversion of the program and deliberate injury to J & J Sports.

Practice Tip #1: While on the surface this appears to be a copyright case, an allegation of interception under 47 U.S.C. § 605 is a different cause of action from copyright infringement. However, a suit alleging interception does not preclude an additional lawsuit alleging different causes of action. For example, the copyright holder can also sue for copyright infringement, which could increase damages by as much as $150,000.

Practice Tip #2: As part of its complaint, J & J Sports claims that the Kikalos' actions have subjected them to "severe economic distress and great financial loss." It will be interesting to see what evidence it offers as proof that, as a result of allegedly not receiving its full commercial fee for the programming purportedly displayed by the Kikalos - a circumstance, if true, presumably known to few other than the Kikalos herself - it has suffered severe economic distress and great financial loss.

Continue reading "Indiana Intellectual Property Litigation: J & J Sports Sues Again Asserting Illegal Cable Signal Interception" »

June 11, 2014

Indiana Copyright Litigation: Malibu Media Sues Nine Additional "John Does" Asserting Copyright Infringement

Indianapolis, Indiana - Nine copyright infringement lawsuits have been filed in the Southern District of Indiana on behalf of Malibu Media, LLC of Los Angeles, California. The lawsuits assert that nine separate unidentified defendants, each identified with only "John Doe" and an internet protocol address, infringed Malibu Media's copyrighted works.

Frequent copyright litigator Paul Nicoletti has filed another set of copyright infringement complaints in Indiana federal court. The complaints, filed on behalf of adult-content purveyor Malibu Media, assert infringement of the company's intellectual property. In this latest round, Malibu Media submitted nine new and nearly identical lawsuits for adjudication in the Southern District of Indiana against nine anonymous John Doe defendants. The defendants allegedly used the BitTorrent file-sharing protocol to illegally download, copy and distribute elements of various works of Malibu Media's copyrighted material. As with all of Malibu Media's complaints, the copyrights-in-suit cover pornographic videos.

Malibu Media seeks a permanent injunction barring the defendants from engaging in infringing activities; an order by the court that infringing materials be removed from all computers of each defendant; a separate award of statutory damages for each work found to have been infringed and reasonable attorneys' fees and costs.

Practice Tip: Defendants who fail to appear run a significant risk of having a default judgment entered against them. There is a significant disparity in the dollar amount awarded in default judgments against defendants in copyright infringement cases involving BitTorrent. In two separate cases, Judge William T. Lawrence ordered defendants who failed to appear to pay $20,000 for the copyright infringement that was deemed to have been admitted by the defendants' failure to defend against the allegations. See here and here. However, in a similar case, Judge Jane Magnus-Stinson ordered an entry of default judgment against a defendant for $151,425, the full amount requested.

Overhauser Law Offices, the publisher of this website, has represented several hundred persons and businesses regarding copyright infringement and similar matters.

Continue reading "Indiana Copyright Litigation: Malibu Media Sues Nine Additional "John Does" Asserting Copyright Infringement " »

June 9, 2014

J & J Sports Sues Yeakle's Sports Bar and Grill Alleging Illegal Cable Signal Interception

Fort Wayne, Indiana - An intellectual property attorney for J & J Sports Productions, Inc. of manny-pacquiao-timothy-bradley.jpgCampbell, California has sued in the Northern District of Indiana alleging that Wesley Yeakle individually and d/b/a Yeakle's Sports Bar and Grill; and Yeakle's Sports Bar and Grill, Inc. d/b/a Yeakles Sports Bar and Grill, both of Marion, Indiana, illegally intercepted and televised Manny Pacquiao v. Timothy Bradley WBO Welterweight Championship Fight Program (the "Program"), which was telecast nationwide on Saturday, June 9, 2012.

J & J Sports states that it is the exclusive domestic commercial distributor of the Program. It has sued Yeakle's Sports Bar and Grill, Inc., as well as Wesley Yeakle as an individual, under the Communications Act of 1934 and The Cable & Television Consumer Protection and Competition Act of 1992.

Specifically, Defendants have been accused of violating 47 U.S.C. § 605 and 47 U.S.C. § 553 by displaying the Program without a commercial license on the day of its broadcast. Regarding the claim under 47 U.S.C. § 605, the complaint alleges that with "full knowledge that the Program was not to be intercepted, received, published, divulged, displayed, and/or exhibited by commercial entities unauthorized to do so, each and every one of the above named Defendants . . . did unlawfully intercept, receive, publish, divulge, display, and/or exhibit the Program" for the purpose of commercial advantage and/or private financial gain.

A count of conversion is also included in the complaint. It asserts that Defendants' acts were "willful, malicious, egregious, and intentionally designed to harm Plaintiff J & J Sports" and that, as a result of being deprived of their commercial license fee, J & J Sports suffered "severe economic distress and great financial loss."

In addition to naming the separate legal entity, Yeakle's Sports Bar and Grill, Inc., which apparently owns the restaurant, Plaintiff has also sued Yeakle alleging that he had the right and ability to supervise the activities of the establishment. J & J Sports asserts that the activities that he supervised included the unlawful interception of Plaintiff's program. J & J Sports contends that Yeakle specifically directed the employees of Yeakle's Sports Bar and Grill to unlawfully intercept and broadcast Plaintiff's program at Yeakle's Sports Bar and Grill or, if he did not, that the actions of the employees of Yeakle's Sports Bar and Grill are directly imputable to Yeakle by virtue of his purported responsibility for the activities of the restaurant.

Yeakle has also been named individually as a result of J & J Sports' contention that he is a managing member of Yeakle's Sports Bar and Grill, Inc. J & J Sports further asserts that Yeakle, as an individual specifically identified on the liquor license for Yeakle's Sports Bar and Grill, had an obvious and direct financial interest in the activities of Yeakle's Sports Bar and Grill.

In the complaint, the intellectual property lawyer for J & J Sports listed the following counts and requests for redress:

• Count I: Violation of Title 47 U.S.C. § 605. For this count, J & J Sports requests (a) statutory damages for each willful violation in an amount to $100,000.00 pursuant to Title 47 U.S.C. 605(e)(3)(C)(ii), and (b) the recovery of full costs, including reasonable attorneys' fees, pursuant to Title 47 U.S.C. § 605(e)(3)(B)(iii).
• Count II: Violation of Title 47 U.S.C. § 553. For this count, J & J Sports asks the court for (a) statutory damages for each violation in an amount to $10,000.00 pursuant to Title 47 U.S.C. § 553(c)(3)(A)(ii); (b) statutory damages for each willful violation in an amount to $50,000.00 pursuant to Title 47 U.S.C. § 553(c)(3)(B); (c) the recovery of full costs pursuant to Title 47 U.S.C. § 553 (c)(2)(C); and (d) and in the discretion of the court, reasonable attorneys' fees, pursuant to Title 47 U.S.C. § 553 (c)(2)(C).
• Count III: Conversion. For this count, the court is requested to order both compensatory and punitive damages from Defendants as the result of the Defendants' allegedly egregious conduct, theft, and conversion of the program and deliberate injury to J & J Sports.

Practice Tip #1: A recent complaint filed by a different intellectual property attorney for J & J Sports deviated from the standard format of J & J Sports' complaints. The standard format, as is demonstrated in this complaint, includes a count of conversion. It also asserts Counts I and II as additive. However, the other complaint omitted the count of conversion and listed Counts I and II in the alternative. It will be interesting to see whether the differences between these pleadings results in different rulings by the Northern District of Indiana.

Practice Tip #2: J & J Sports has sued two entities: a legal entity which appears to be incorporated and an individual who is apparently an owner of that company. While corporations are intended to limit the liability of the principals, they are not always successful in doing so. Where a principal is personally involved in certain types of illegal activity, legal mechanisms (such as a corporation or a limited liability company) that are designed to shield that individual from liability may fail to do so.

Practice Tip #3:  J & J Sports is a frequent litigant.  While the fight programs at issue in its intellectual property lawsuits vary, with few exceptions, the complaints are otherwise almost identical.  As is sometimes also the case with others utilizing this template approach to drafting multiple similar complaints, this standardized method of litigation resulted in several errors in this complaint drafted for J & J Sports.  For example, the date of the program over which this federal lawsuit was initiated is listed incorrectly at least four times (listed variously as "Saturday [sic], June 6, 2012," "June 6, 2012" and May 7, 2011.")

Continue reading "J & J Sports Sues Yeakle's Sports Bar and Grill Alleging Illegal Cable Signal Interception" »

June 6, 2014

173 Trademark Registrations Issued to Indiana Companies in May 2014

The U.S. Trademark Office issued the following 173 trademark registrations to persons and businesses in Indiana in May 2014 based on applications filed by Indiana trademark attorneys:

Reg. Number Word Mark Click to View
4540937 BESTSEOS Live
4537793 USA FUNDS LIFE SKILLS Live
4537740 POWERED BY POO Live
4537739 POWERED BY POO FAIR OAKS FARMS Live
4537720 RBX Live
4537611 UNDER THE SEA-SONINGS Live
4537582 ASSESS.IMPROVE.OPERATE. Live
4537574 SEE LIFE DIFFERENTLY Live
4537449 LIFE SKILLS Live
4537406 PUTTING HISTORY TO WORK IN THE WORLD Live
4537206 SMART SEGMENTS Live

Continue reading " 173 Trademark Registrations Issued to Indiana Companies in May 2014" »

June 5, 2014

Patent Office Issues 159 Patents To Indiana Citizens in May 2014

The U.S. Patent Office issued the following 159 patent registrations to persons and businesses in Indiana in May 2014, based on applications filed by Indiana patent attorneys:

PAT. NO. Title
D705,913 Toilet tank lid 
D705,785 Adjustable stand for portable electronic device 
8739137 Automatic derivative method for a computer programming language 
8738957 Apparatus and method for processing a wirelessly received information encoded in form of embedded data and clock 
8738408 Methods for grid-based rating insurance products using a programmed computer system 
8738407 Computer readable medium containing a set of computer readable instructions for grid-based insurance rating 
8738248 System for controlling vehicle overspeeding via control of one or more exhaust brake devices 
8737564 Low-background scattering x-ray diffractometer devices, systems, and methods 
8736456 Gas sensing method and instrument therefor 
8735689 Hybrid corn variety 980008 

Continue reading "Patent Office Issues 159 Patents To Indiana Citizens in May 2014" »

June 4, 2014

Indiana Trademark Litigation: Harmony School Sues School Reform Initiative

Indianapolis, Indiana - Indiana trademark attorneys for Harmony School Corporation harmony_logo_effects.png("Harmony") of Bloomington, Indiana, filed a trademark infringement lawsuit in the Southern District of Indiana alleging, inter alia, that School Reform Initiative, Inc. ("SRI") of Lakewood, Colorado infringed its service mark "Critical Friends Group," Trademark Registration No. 2,925,985, which has been registered with the United States Trademark Office.

Established in 1974, Harmony is an Indiana non-profit corporation that seeks "to prepare young people to live in and contribute to a heterogeneous democratic country." Among its programs is its National School Reform Faculty ("NSRF"), a program designed to develop skills in teachers that will then enable children to learn more effectively. Harmony claims ownership of a service mark in "Critical Friends Group," as used in connection with providing training in the field of improving teaching skills. "Critical Friends Group" is also referred to as CFG. In addition to the rights conferred by federal registration, Harmony asserts common law trademark rights in the marks through actual use in interstate commerce beginning no later than 2000 and continuing since.

Defendant SRI is also a non-profit organization. It is dedicated to creating transformational learning communities committed to educational equity and excellence. Harmony asserts that SRI is a direct competitor in the business of professional development within the field of education. SRI is accused of having infringed marks belonging to Harmony.

Gene Thompson-Grove is asserted to have worked for Harmony from 2000 to 2009. During that time, Harmony claims that Thompson-Grove was actively involved in Harmony's use and federal registration of the Critical Friends Group mark. Harmony also contends that, immediately after discontinuing her work for Harmony, Thompson-Grove began working with SRI. Harmony indicates that, around this time, the alleged infringement of the Critical Friends Group and CFG marks began.

In March 2014, Harmony demanded that SRI cease and desist using the Critical Friends Group mark. It claims that infringement continued.

In this Indiana trademark lawsuit, Harmony accuses SRI of having willful intent to deceive the public as to the ownership of the mark, the source of the services, or both. It states that it has incurred substantial damages and irreparable injury as a result of SRI's alleged infringement. In its complaint, filed by Indiana trademark lawyers, Harmony asserts the following causes of action:

• Federal Trademark Infringement in Violation of § 32 of the Lanham Act
• Unfair Competition in Violation of § 43(a) of the Lanham Act
• Common Law Trademark Infringement
• Common Law Unfair Competition

Harmony asks the court for injunctive relief, including the destruction of materials determined to be infringing and removal of infringing marks from digital media; damages, including treble damages to reflect the deliberateness and willfulness of SRI's actions; costs and attorneys' fees.

Practice Tip: There used to be an unspoken rule that organizations operated with the primary objective of public service ought to go out of their way to "get along" with similar organizations. That notion seems to be dissipating. Instead, trademark infringement litigation and other legal disputes between non-profit organizations, once relatively rare, have increased in recent years. Among the organizations issuing cease-and-desist letters and/or initiating intellectual property litigation are some of the largest non-profit organizations in the United States: Susan G. Komen, the Lance Armstrong Foundation and Wounded Warrior Project.

Continue reading "Indiana Trademark Litigation: Harmony School Sues School Reform Initiative" »

May 30, 2014

Indiana Copyright Litigation: J & J Sports Sues Estrella for Unlawful Interception and Broadcast

Hammond, Indiana - A copyright attorney for J & J Sports Productions, Inc., of Campbell, imagesCAVFK9MT.jpgCalifornia filed an intellectual property lawsuit in the Northern District of Indiana alleging that Melissa Estrella a/k/a Melissa Barnett, a/k/a Melissa White of Calumet City, Illinois individually and d/b/a Estrellas Sports Bar, located in Hammond, Indiana, unlawfully intercepted and exhibited the "Ruiz/Hamer" broadcast.

J & J Sports states that it is licensed as a distributor of the "Ruiz/Hamer" broadcast. It has sued Melissa Estrella individually and doing business as Estrellas Sports Bar ("Estrellas") under the Federal Communications Act and The Cable & Television Consumer Protection and Competition Act.

Specifically, Ms. Estrella has been accused of violating 47 U.S.C. § 605 and 47 U.S.C. § 553 by displaying the "Ruiz/Hamer" broadcast on November 23, 2013 without a commercial license. Regarding the claim under 47 U.S.C. § 553, the complaint alleges that with "with full knowledge that the Broadcast was not to be received and exhibited by entities unauthorized to do so, Defendant ... did exhibit the Broadcast ... willfully and for purposes of direct or indirect commercial advantage or private financial gain."

As the establishment is apparently not a separate legal entity, the only Defendant is Ms. Estrella. The allegations against her include that she had the right and ability to supervise the activities of Estrellas Sports Bar. J & J Sports asserts that those activities included the unlawful interception of its program.

J & J Sports also contends that Ms. Estrella specifically directed the employees of the establishment to unlawfully intercept and broadcast J & J Sports' program at Estrellas or, if she did not, that the actions of the employees of Estrellas are directly imputable to Ms. Estrella by virtue of her purported ownership of and responsibility for the activities of Estrellas.

J & J Sports also asserts that Ms. Estrella advertised the exhibition of J & J Sports' program and collected a cover charge of $5 per person on the night of the alleged illegal acts. This accusation, in conjunction with her purported ownership of the establishment, prompted J & J Sports to assert that Ms. Estrella had an obvious and direct financial interest in the activities of Estrellas and received a benefit from the operations of Estrellas on November 23, 2013.

In the complaint, the intellectual property lawyer for J & J Sports asks for injunctive relief. The following counts and requests for redress are also listed:

• Count I: Violation of Title 47 U.S.C. Section 605. For this count, J & J Sports requests (a) statutory penalties for each willful violation in an amount up to $110,000.00 pursuant to Title 47 U.S.C. 605(a), and (b) the recovery of full costs, including reasonable attorneys' fees, pursuant to Title 47 U.S.C. § 605(e)(3)(B)(iii), or, in the alternative,
• Count II: Violation of Title 47 U.S.C. Section 553. For this count, J & J Sports asks the court for (a) statutory damages for each violation in an amount to $60,000.00 pursuant to Title 47 U.S.C. § 553; (b) the recovery of full costs pursuant to Title 47 U.S.C. § 553 (c)(2)(C).

Practice Tip #1: Among its assertions of wrongdoing, J & J Sports has alleged interception of the Program under 47 U.S.C. § 605, which is a different cause of action from copyright infringement.

Practice Tip #2: When Congress passed the Cable Communication Act, a statute of limitations was not included. Some federal courts have determined that a two-year statute of limitation is appropriate while other federal courts have used a three-year statute of limitations. Unlike some plaintiffs in similar lawsuits, who have filed late enough to risk running afoul of the statute of limitations, J & J Sports filed in a relatively short period of time following the alleged wrongdoing.

Practice Tip #3: Previous similar complaints filed by J & J Sports have also included a count of conversion. That count typically asserted that Defendants' acts were "willful, malicious, egregious, and intentionally designed to harm Plaintiff J & J Sports" and that, as a result of being deprived of their commercial license fee, J & J Sports had suffered "severe economic distress and great financial loss," an expansive proposition that we have in the past posited might be difficult to prove. Perhaps those difficulties explain the absence of this count in the current complaint. Counts I and II have also been modified. Previous complaints had asserted these counts as additive, while this complaint lists them in the alternative.

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

Continue reading "Indiana Copyright Litigation: J & J Sports Sues Estrella for Unlawful Interception and Broadcast" »

May 29, 2014

IU McKinney Welcomes Internationally Renowned IP Scholar to Law Faculty

Professor Xuan-Thao Nguyen, a professor at the Southern Methodist University Dedman Nguyen-Xuan-Thao-t.jpgSchool of Law, will join the faculty and lead the Center for Intellectual Property Law and Innovation at the IU Robert H. McKinney School of Law. She will join Indiana University in August 2014.

Professor Nguyen is internationally recognized for her teaching and scholarship in the areas of intellectual property, secured transactions, bankruptcy, licensing, and taxation in her teaching and scholarship. She has co-authored several treatises and casebooks and around 30 law review articles in the areas of intellectual property, secured financing, bankruptcy, and taxation.

"It is an honor and privilege to be the Gerald L. Bepko Chair in Law and Director of the Center for Intellectual Property and Innovation at the Indiana University Robert H. McKinney School of Law," Professor Nguyen said. "I look forward to working with my colleagues, students, alumni and friends in building a vibrant Center for all and a special home for training future leaders around the world in IP and related fields."

The Bepko Chair is an endowed chair, and was made possible in part by Robert H. McKinney's gift to the law school.

"We are very pleased to welcome Professor Nguyen to the IU McKinney family," said Dean Andrew R. Klein. "Her expertise, energy, and connections across the globe will benefit students who study intellectual property law and support our entire community's life science endeavors."

Professor Nguyen frequently provides technical expertise and support to the Vietnam Ministry of Justice and the Ministry of Science and Technology. She regularly speaks at academic symposia, conferences, seminars and workshops on topics related to her legal scholarship and higher education in the United States, China, Vietnam, Thailand, Hong Kong and Vienna. She is a consultant for the World Bank/International Finance Corp. on Secured Transactions in China, Vietnam and the Mekong Region. She currently serves on the Scientific Council, University Economics & Law, Vietnam National University ("VNU"), shaping the strategic vision of the university. In 2009, Professor Nguyen was a Senior Fulbright Scholar at VNU School of Law in Hanoi; she taught and developed an IP curriculum and trained law lecturers. She then served as a Fulbright Scholars Peer Reviewer from 2010 to 2013.

"IUPUI is committed to supporting Indiana's economic development, so I am especially pleased to have Professor Nguyen join the McKinney School of Law. She brings tremendous experience in intellectual property, innovation, and economic development, plus her energy will make her an excellent leader of the Center," said IUPUI Chancellor Charles Bantz.

Prior to entering academia, Professor Nguyen practiced law at Fried Frank Harris Shriver & Jacobson, and Pryor Cashman Sherman & Flynn, both firms in New York City. She is registered to practice with the United States Patent and Trademark Office.

Practice Tip: The latest headlines for the Indiana University Robert H. McKinney School of Law may be found here.

May 28, 2014

Indiana Patent Law: Anchor Fails to Meet its Burden to Support Transfer of Indiana Patent Infringement Litigation

Fort Waynpackaging.pnge, Indiana - Magistrate Judge Roger Cosbey of the Northern District of Indiana denied the motion for transfer filed by patent attorneys for Anchor Packaging, Inc. of St. Louis, Missouri ("Anchor"). Anchor sought a transfer of the declaratory judgment action filed by Mullinix Packages, Inc. of Fort Wayne, Indiana ("Mullinix") to the Eastern District of Missouri where Anchor has a related, but later-filed infringement suit pending against Mullinix. Both patent infringement lawsuits pertain to the alleged infringement by Mullinix of Patent Nos. D679,587; D675,919 and D570,681, which were issued by the U.S. Patent Office.

Anchor and Mullinix are competitors in the commercial packaging industry. Prior to 2010, Anchor had been the primary supplier of mashed potato containers to Bob Evans Farms, Inc., a position now assumed by Mullinix. According to Mullinix, mashed potato container sales peak dramatically during the fourth quarter of the year and Mullinix's ability to meet Bob Evans's demand for containers during this period is critical to maintaining a successful relationship. It was around this time that patent lawyers for Anchor demanded that Mullinix cease and desist selling a tray that Anchor asserted was of a substantially similar design as trays claimed in three of Anchor's patents.

While the cease-and-desist letter sent by Anchor's patent counsel indicated that Anchor's "interest is a resolution of this matter and not litigation," Mullinix filed a complaint for declaratory judgment in the Northern District of Indiana shortly thereafter. Several weeks later, Anchor responded by filing a complaint for patent infringement in the Eastern District of Missouri.

In this opinion, Magistrate Judge Roger Cosbey, writing for the Northern District of Indiana, addresses Anchor's motion to transfer Mullinix's Indiana complaint for declaratory judgment for patent non-infringement to Missouri.

Anchor argued that the case should be transferred because (1) Mullinix filed its declaratory judgment action in anticipation of Anchor's infringement suit, (2) a critical non-party witness is outside this Court's subpoena power, but within the range of the Eastern District of Missouri, and (3) the Eastern District of Missouri is a more convenient forum.

The court evaluated Anchor's request for transfer under § 1404(a) under precedent set by the Seventh Circuit. Under § 1404(a), a court may transfer a case if the moving party shows that: (1) venue was proper in the transferor district, (2) venue and jurisdiction would be proper in the transferee district, and (3) the transfer will serve in the convenience of the parties and the witnesses as well as the interests of justice.

As neither party disputed that both the Indiana and Missouri courts have jurisdiction and are proper venues, the court focused its analysis on the third factor. As the party requesting transfer, Anchor has the burden to show that the Eastern District of Missouri would be "clearly more convenient" than the Northern District of Indiana. In evaluating convenience, the factors to consider are: "(1) the plaintiff's choice of forum, (2) the situs of the material events, (3) the relative ease of access to sources of proof, (4) the convenience of the parties, and (5) the convenience of the witnesses."

The first factor, the plaintiff's choice of forum, was held to be neutral. In general, a plaintiff's choice of forum is entitled to substantial deference, particularly where the chosen forum is the plaintiff's home forum. However, the court found that this factor did not weigh in either direction. In this case, there are two plaintiffs in two different fora. As a result, one of them will necessarily be disturbed.

The evaluation of the situs of the material events weighed against transfer. In patent infringement actions "the situs of the injury is the location, or locations, at which the infringing activity directly impacts on the interests of the patentee." Mullinix is headquartered in Fort Wayne, Indiana, which is in the Northern District of Indiana, and keeps its documents pertaining to the accused infringing products in Fort Wayne. Additionally, two of the individuals who worked on the accused infringing products work and reside within the district.

For similar reasons, the court held the third factor, relative ease of access to sources of proof, to weigh against transfer.

The court briefly addressed the fourth factor, the convenience of the parties, noting that there was no way to avoid inconveniencing either one party or the other. In such a circumstance, the court held that "when the inconvenience of the alternative venues is comparable there is no[] basis for a change of venue; the tie is awarded to the plaintiff[.]"

Finally, the court addressed the fifth factor, the convenience of non-party witnesses, noting that this element was "often considered the most important factor in the transfer analysis." The court noted with some displeasure that the parties had perhaps been disingenuous in arguing this factor. After a discussion of the evidence that had been submitted, it concluded that the parties had failed to provide it with much enlightenment on the subject and, as a result, the court was largely left to speculate about the convenience of non-party witnesses. The court thus held that this analysis-of-transfer factor was neutral.

In sum, it was found that the convenience factors did not support transfer.

The court also evaluated the interests-of-justice inquiry. On the whole, these factors - the speed to trial, familiarity with the applicable law, desirability of resolving controversies and relation of each community to the controversy - also weighed against transfer.

Finally, the court addressed the first-filed analysis under Federal Circuit precedent, which governs declaratory judgment actions in patent cases. Given that no "sound reason" for transfer had been found in the earlier analysis, court dismissed the first-filed analysis as "ancillary" and largely non-dispositive.

Practice Tip #1: The first-to-file rule is a doctrine of federal comity that generally favors pursuing only the first-filed action when multiple lawsuits involving the same claims are filed in different jurisdictions. It was designed to avoid conflicting decisions and promote judicial efficiency. Finding an exception to the first-to-file rule requires a "sound reason that would make it unjust or inefficient to continue the first-filed action."

Practice Tip #2: A court may also consider the extent to which a declaratory judgment action is anticipatory and motivated by forum shopping. However, the Federal Circuit has repeatedly held that a finding that a filing was anticipatory does not in itself constitute sufficient legal reason to transfer or dismiss the first-filed case.

Continue reading "Indiana Patent Law: Anchor Fails to Meet its Burden to Support Transfer of Indiana Patent Infringement Litigation" »

May 27, 2014

Indiana Copyright Litigation: Fourteen New Lawsuits Asserting Copyright Infringement Filed by Malibu Media

Indianapolis, Indiana - An intellectual property attorney has filed fourteen new copyright MMpicture.jpgsuits in the Southern District of Indiana on behalf of Malibu Media, LLC of Los Angeles, California alleging that 14 separate unidentified defendants, listed as "John Doe" defendants, infringed Malibu Media's copyrighted works.

In this latest batch of lawsuits filed by copyright lawyer Paul Nicoletti, the 14 defendants, all sued under the name "John Doe" until they can be identified pursuant to a court subpoena and named, are listed as "persistent online infringer[s]" of Malibu Media's copyrighted works. The nearly identical copyright infringement lawsuits contend that the defendants used the BitTorrent file-sharing protocol to illegally download, copy and distribute elements of various works of Malibu Media's copyrighted material.

The defendants accused of infringing the fewest copyrighted works are accused of infringing 16 of Malibu Media's copyrights. Malibu Media contends that two defendants, however, have infringed more than 40 of its copyrighted works.

Malibu Media seeks a permanent injunction barring the defendants from engaging in infringing activities; an order by the court to remove infringing materials from all computers of each defendant; an award of statutory damages for each infringed work and reasonable attorneys' fees and costs.

Practice Tip #1:

Copyright trolling, also known as "porn trolling" when the plaintiff owns copyrights to pornographic material, has changed in the years since the practice began. Most early lawsuits were filed against tens, hundreds or even in excess of a thousand anonymous defendants. When judges such as District Judge Otis Wright made it clear that this misjoinder would not be permitted, porn trolls began filing multiple lawsuits claiming copyright infringement against single defendants.

Porn trolls also responded to this change in the judicial landscape by adding a new exhibit, "Exhibit C," with each filing. Exhibit B to each complaint was a legally relevant listing of the Malibu Media copyrights that were allegedly infringed. However, Exhibit C listed other pornographic material - material not owned by Malibu Media - allegedly downloaded by the internet protocol address of the accused.

While the titles of Malibu Media's copyrighted works are often fairly innocuous - "Almost Famous," "Blonde Ambition" and "LA Plans" are among their works - the titles listed in Exhibit C were decidedly not. In response these and other Malibu Media copyright litigation tactics, one federal judge, District Judge William Conley, said, "[t]hese Internet copyright infringement cases ... give off an air of extortion." He sanctioned Malibu Media's counsel under Rule 11 and ordered a fine of $2,200.

Practice Tip #2: Mass misjoinder in copyright cases has also been flagged as impermissible in other, non-pornography, cases that assert copyright infringement against multiple defendants. In one recent Indiana copyright lawsuit, Magistrate Judge Denise K. LaRue, writing for the Southern District of Indiana, severed all but one defendant from the copyright infringement complaint of Richard Bell, an Indiana copyright attorney. The court also ordered Bell to pay separate filing fees for each new cause of action.

Continue reading "Indiana Copyright Litigation: Fourteen New Lawsuits Asserting Copyright Infringement Filed by Malibu Media" »

May 23, 2014

Indiana Copyright Law: Court Orders Severance of Misjoined Copyright Infringement Complaint

Indianapolis, Indiana - Magistrate Judge Denise K. LaRue, writing for the Southern District of Indiana, directed the Clerk of the Court to sever all but one defendant from the copyright infringement complaint of Richard Bell, an Indiana copyright attorney. Bell was also ordered by the court to pay separate filing fees for each new cause of action.

Bell is a copyright lawyer and a professional photographer. He contends that he is the owner of two copyrighted photographs of Indianapolis taken in March 2000. The photos have been registered with the U.S. Copyright Office.

In April, Bell filed another copyright infringement lawsuit in the Southern District of Indiana alleging copyright infringement of his photos by numerous Defendants. The Defendants were: Diversified Vehicle Services of Marion County, Indiana; Cameron Taylor and Taylor Computer Solutions of Indianapolis, Indiana; Rhonda Williams of Indianapolis, Indiana; Forensic Solutions, Inc. of Waterford, New York; Heath Garrett of Nashville, Tennessee; CREstacom, Inc. of Fishers, Indiana; American Traveler Service Corp LLC, location unknown; Mike Cowper of Martinsville, Indiana; Kimberly Hinds of Indianapolis, Indiana; Rensselaer Polytechnic Institute of Troy, New York; EasyStreet Realty of Indianapolis, Indiana; Drohan Management of Reston, Virginia; Metal Markets of Indianapolis, Indiana; Mattison Corporation of Indianapolis, Indiana; Industrial Heating Equipment Association of Taylor Mill, Kentucky; Junk Dawgs of Indianapolis, Indiana and WRTV of Indianapolis, Indiana. Bell is both the copyright lawyer and Plaintiff in this lawsuit.

In this earlier complaint, Bell alleged that each Defendant, independent of each other Defendant, "created their individual website to promote and market their business" and placed the Plaintiff's copyrighted photo on each of the Defendants' respective websites. Claiming copyright infringement, unfair competition and theft, Bell asked the court for, inter alia, the maximum allowable statutory damages for each copyright violation.

The court ordered Bell to show cause why all defendants but one should not be severed for misjoinder. Bell argued that the rules regarding joinder should be given a broad scope so that multiple lawsuits could be avoided.

The court was not persuaded. In addressing Bell's contention that joinder of the unrelated Defendants was proper, it was Bell's own language, and the factual underpinnings of that language, to which the court pointed in denying joinder. The court noted that Bell's "complaint alleges that '[e]ach defendant, independently of each other, created or had created a website to promote and advertise the business of each Defendant,' and that Plaintiff discovered that 'the website [of] each of these Defendants contained [one of the photographs].'" The court also noted that "[e]xcept for defendants Cameron Taylor and Taylor Computer Solutions, the Complaint contains no allegation that any defendant acted in concert with another defendant in appropriating Plaintiff's photographs and it does not allege any transaction, occurrence, or series of transactions or occurrences in which two or more defendants participated." (Citations omitted.)

The court then reviewed the requirements of Federal Rule of Civil Procedure 20(a)(2)(A) that a Plaintiff's claims against defendants joined in the same action must respect or arise out of the same occurrence or the same series of occurrences. While Bell had alleged copyright infringement of the same copyrighted material against all Defendants, the court held this to be insufficient. Similarly, while the same types of questions of fact would arise against each Defendant - "e.g., how did the defendant find Plaintiff's photograph, what did the defendant know about the photograph's copyright status, did the defendant make commercial use of the photograph, and did the defendant pay for the use of the photograph" - those similar questions of fact provided no logical relationship among the Defendants that would support joinder.

Instead, the court found that each Defendant was accused of independently committing separate and distinct acts of copyright infringement that happened to involve the same photograph.

The court then directed the Clerk of the Court to sever all defendants other than Diversified Vehicle Services from the complaint as it had been filed and to open separate causes for each of the severed defendants, with the exception of defendants Cameron Taylor and Taylor Computer Solutions, which the court directed to be joined in one cause. WRTV was dropped, as Bell indicated that it had been included as a defendant inadvertently.

The court also ordered Bell to pay the $400 filing fee for each of the 15 severed causes of action no later than June 2, 2014.

Practice Tip #1: There has been a growing trend of attempting to monetize copyright infringement. In this particular case, the docket for the initial complaint showed Bell's demand to be $5,000,000 for the alleged infringing activities. In ruling that "unrelated claims against unrelated defendants belong in different suits, in part to ensure that plaintiffs pay the required filing fees" and subsequently ordering the Plaintiff to pay a separate filing fee for each of the Defendants, Magistrate Judge LaRue has employed one approach that may be useful in combatting such copyright trolling.

Practice Tip #2: Under 17 U.S.C. § 504(c)(1), a copyright owner may elect actual or statutory damages. Statutory damages range from a sum of not less than $750 to not more than $30,000 per infringed work.

Practice Tip #3: The claims of this case appear calculated to trigger the "advertising injury" clause of many general business liability insurance policies. If a defendant has applicable business insurance, this may allow Bell to negotiate quicker settlements. Overhauser Law Offices, publisher of this Site, counsels clients on insurance coverage for insurance claims.

Practice Tip #4: These latest causes of actions represent the most recent of three ongoing cases filed by Bell asserting infringement of his photos. We have blogged about his copyright infringement litigation before. See here. The Indiana Lawyer also wrote recently about Bell's copyright litigation. That article includes an interview with Paul B. Overhauser, Managing Partner of Overhauser Law Offices.

Continue reading "Indiana Copyright Law: Court Orders Severance of Misjoined Copyright Infringement Complaint" »

May 22, 2014

Indiana Copyright Lawsuit - Malibu Media Alleges Infringement of Thirty Copyrighted Works

Indianapolis, Indiana - A copyright attorney for Malibu Media, LLC d/b/a X-Art.com of Los Angeles, California has sued alleging that an unidentified Indiana resident, "John Doe," engaged in BitTorrent transactions associated with 241 files owned by Malibu Media between October 6, 2013 and May 2, 2014. Malibu Media asserts that these alleged acts of copyright infringement took place in the Southern District of Indiana.

The "John Doe" defendant in this copyright infringement lawsuit allegedly used the BitTorrent file-sharing protocol to illegally download, copy and distribute elements of various works of Malibu Media's copyrighted material. Malibu Media has also claimed that the defendant is a "persistent online infringer." It claims that "John Doe" has infringed 30 separate copyrighted works owned by Malibu Media. Of these 30 works, 27 have been registered by the U.S. Copyright Office. Three registrations remain pending.

Malibu Media seeks a permanent injunction against infringing activities; an order by the court to remove infringing materials from all computers of the defendant; an award of statutory damages pursuant to 17 U.S.C. § 504(a) and (c) and reasonable attorneys' fees and costs.

Practice Tip #1: In its complaint, filed by a copyright lawyer, Malibu Media alleges that the infringing transfer and copying of this copyrighted work was accomplished by the Defendant using BitTorrent, a peer-to-peer file-sharing protocol. Plaintiff states that the BitTorrent protocol makes even small computers with low bandwidth capable of participating in large data transfers for copying large files such as movies.

Practice Tip #2: Under 17 U.S.C. § 504(c)(1), a copyright owner may elect actual or statutory damages. Statutory damages range from a sum not less than $750 to not more than $30,000 per infringed work. The determination of the exact amount is left to the discretion of the court. The docket report shows that, in this case, Malibu Media is demanding $150,000.

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May 21, 2014

USPTO Proposes Reducing Certain Trademark Fees

Washington, D.C. - The U.S. Commerce Department's United States Patent and Trademark600px-US-PatentTrademarkOffice-Seal_svg.png Office ("USPTO") recently issued a Notice of Proposed Rulemaking ("NPRM") proposing to reduce fees for many new trademark applications and most renewals of registration. USPTO also proposes a new Trademark Electronic Application System Reduced Fee (TEAS RF) filing option in addition to reducing filing fees for both applications filed using the current Trademark Electronic Application System Plus ("TEAS Plus") option and applications for renewal of a registration filed through Trademark Electronic Application System ("TEAS").

"The proposed fee reductions advance the USPTO's core mission of serving the public in the most efficient and cost-effective manner possible," said Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the USPTO Michelle K. Lee. "Lower fees will lessen the burden for entrepreneurs to obtain the crucial trademark protection they need to grow their businesses, while increased electronic processing improves agency efficiency."

Prior to issuing the NPRM, the USPTO published a notice of inquiry to provide the public with an opportunity to comment on possible adjustments to trademark application fees. Public comments overwhelmingly favored a fee reduction with many expressing a desire for a lower-cost electronic filing option without any restrictions on the nature of the identification of goods and services, as is required under TEAS Plus.

Under the NPRM, the fee for a new application filed using the regular Trademark Electronic Application System (TEAS) application form will be reduced $50, if the applicant authorizes e-mail communication with the USPTO and agrees to file documents electronically during the prosecution of the application. The fee for a new application filed via the existing TEAS Plus option will also be reduced $50. The fee for an application for renewal of a registration submitted via TEAS will be reduced $100, while the filing fees for trademark applications and renewals filed on paper will remain unchanged. Further information about the proposed rules and instructions for submitting comments may be found in the Federal Register Notice.

May 19, 2014

Indiana Copyright Litigation - Another John Doe Sued by Malibu Media on Allegations of Copyright Infringement

Indianapolis, Indiana - A copyright attorney for Malibu Media, LLC d/b/a X-Art.com of Los Angeles, California has sued alleging that an unidentified Indiana resident, "John Doe," infringed numerous of its copyrighted works in the Southern District of Indiana between July 2012 and May 2014.

The "John Doe" defendant in this copyright infringement lawsuit allegedly used the BitTorrent file-sharing protocol to illegally download, copy and distribute elements of various works of Malibu Media's copyrighted material. Malibu Media has also claimed that the defendant is a "persistent online infringer." It claims that "John Doe" has infringed 43 separate copyrighted works owned by Malibu Media. Of these 43 works, 42 have been registered by the U.S. Copyright Office. One registration remains pending.

Malibu Media seeks a permanent injunction against infringing activities; an order by the court to remove infringing materials from all computers of the defendant; an award of statutory damages pursuant to 17 U.S.C. § 504(a) and (c) and reasonable attorneys' fees and costs.

Practice Tip #1: The BitTorrent protocol is a decentralized method that allows users to distribute data via the Internet, and has become an extremely popular method for unlawful copying, reproducing and distributing files in violation of the copyright laws. While the copyright infringements committed with BitTorrent once consisted mostly of music copyright violations, the adult entertainment industry has increasingly been filing suit against infringers who have used BitTorrent-based technology.

Practice Tip #2: Malibu Media, LLC is represented by Paul Nicoletti, one of the country's most notorious "copyright troll" attorneys. In addition to filing suits on behalf of Malibu Media, LLC, he has also sued hundreds of defendants on behalf of copyright trolls Patrick Collins, Inc. and TCYK, LLC. (Search for these company names on this site to find articles about those other suits, or visit http://fightcopyrighttrolls.com/or www.dietrolldie.com.)

Practice Tip #3: Overhauser Law Offices, the publisher of this website, has represented several hundred persons and businesses regarding copyright infringement and similar matters.

Continue reading "Indiana Copyright Litigation - Another John Doe Sued by Malibu Media on Allegations of Copyright Infringement " »

May 16, 2014

Indiana Trademark Law: Seventh Circuit Holds Indiana Court Lacked Personal Jurisdiction Over RAP4

Chicago, Illinois - Indiana trademark attorney Paul B. Overhauser, on behalf of K.T. Tran andRAP4Photo.JPG Real Action Paintball, Inc., a California corporation (collectively "RAP4"), argued before the United States Court of Appeals for the Seventh Circuit that the trademark infringement suit brought in the Northern District of Indiana by Advanced Tactical Ordnance Systems, LLC, an Indiana corporation ("ATO"), was not properly before the Indiana court, as it lacked personal jurisdiction over RAP4. The Seventh Circuit agreed and instructed the district court to dismiss the complaint.

RAP4 and ATO are competitors in the "irritant projectile" market. Unlike the more familiar game of paintball, in which a paint-filled sphere is shot at opponents as part of a war game, these irritant projectiles are used by the police and military to intervene in hostile situations where lethal force is unnecessary. While paintballs are filled with paint, irritant projectiles use capsaicin, the active ingredient in pepper spray. Irritant projectiles, thus, allow law enforcement personnel to use less-than-lethal force from a distance.

Among the many issues in this lawsuit, including assertions by ATO of trade-dress infringement, unfair competition and misappropriation of trade secrets, were allegations that RAP4 had infringed the trademarked term "PEPPERBALL," to which ATO claimed ownership. That trademark, Registration No. 2716025, was issued in 1999 by the U.S. Trademark Office to a non-party to this suit.

The trouble began when another company, non-party PepperBall Technologies, Inc. ("PTI"), began to have financial problems. PTI had also been a competitor in the irritant-projectile market. To address its difficulties, PTI held a foreclosure sale, the validity of which was hotly contested. ATO claimed that it had purchased PTI's trademarks - including "PEPPERBALL" - and other property during this foreclosure sale.

During the time that PTI ceased its operations and was attempting to convey its assets, RAP4 was contacted by an executive of non-party APON, a company which had manufactured some of PTI's irritant projectiles. He asked if RAP4 was interested in acquiring irritant projectiles from APON.

RAP4 agreed to purchase irritant projectiles from APON. After having negotiated this access to APON's machinery, recipes, and materials - which had had at one time been used by PepperBall Technologies Inc. - RAP4 announced this fact to the people on its e-mail list. Specifically, it stated in its e-mail that it had acquired access to, "machinery, recipes, and materials once used by PepperBall Technologies Inc." It was this language to which ATO, which claimed to be the successor in interest to PTI, particularly objected.

ATO sent a cease-and-desist letter to RAP4. In response, RAP4 added a disclaimer that it was not affiliated with PTI. ATO then sued in the Northern District of Indiana. It claimed several different theories of recovery, including intentional violations of the Lanham Act, 15 U.S.C. § 1111 et seq., common law trademark infringement and unfair competition, trade dress infringement, and misappropriation of trade secrets.

Of particular interest to the Seventh Circuit in addressing this Indiana trademark litigation was the issue of personal jurisdiction over RAP4 in the Northern District of Indiana. RAP4 contested that such jurisdiction over it was lacking. ATO countered that RAP4 had sufficient contacts, including a "blast e-mail" announcement from RAP4 that would suffice for jurisdiction in Indiana, stating that "many [RAP4 customers] are located here in the state of Illinois. I mean, state of Indiana." It also contended that RAP4 regularly e-mailed customers or potential customers from all over the United States, including Indiana, and that RAP4 had made at least one sale to an Indiana resident.

ATO conceded that it lacked general jurisdiction. Thus, the Seventh Circuit turned to an analysis of specific jurisdiction. "For a State to exercise jurisdiction consistent with due process, the defendant's suit-related conduct must create a substantial connection with the forum State," noted the appellate court. Moreover, the relation between the defendant and the forum "must arise out of contacts that the 'defendant himself' creates with the forum."

In determining that personal jurisdiction existed, the Indiana district court had relied on several facts: "first, [RAP4] fulfilled several orders of the allegedly infringing projectiles for purchasers in Indiana; second, it knew that Advanced Tactical was an Indiana company and could foresee that the misleading emails and sales would harm Advanced Tactical in Indiana; third, it sent at least two misleading email blasts to a list that included Indiana residents; fourth, it had an interactive website available to residents of Indiana; and finally, it put customers on its email list when they made a purchase, thereby giving the company some economic advantage."

The Seventh Circuit held that these facts were insufficient to support specific jurisdiction. The only Indiana sales that would have been relevant were those that related to RAP4's allegedly unlawful activity. ATO failed to meet its burden of proof of any such Indiana sales. Similarly, the court held that any effects that were purportedly felt in Indiana by ATO did not support specific jurisdiction. Instead, the relation between RAP4 and the Indiana forum "must arise out of contacts that the defendant himself creates with the forum State."

Further, neither RAP4's e-mail communications nor its website were held to create specific jurisdiction. If such contacts were sufficient, the court held, there would be no limiting principle on personal jurisdiction and a plaintiff could sue almost any defendant with an Internet presence or which utilized e-mail in almost any forum in the United States or the world. To find jurisdiction on such vanishingly small contacts would offend the long-held and traditional "notions of fair play and substantial justice."

The Seventh Circuit remanded the case to the Indiana district court with instructions to vacate the judgment and dismiss the complaint for lack of personal jurisdiction.

Practice Tip #1: RAP4's references to "Pepperball Technologies, Inc." could not as a matter of law constitute trademark infringement, counterfeiting or false advertising. Instead, RAP4's use of its competitor's name is a merely a wholly permissible nominative use of that mark. As a matter of law, a "nominative use of a mark - where the only word reasonably available to describe a particular thing is pressed into service - lies outside the strictures of trademark law."

Practice Tip #2: Personal jurisdiction is an essential element of federal court jurisdiction, without which the court is powerless to adjudicate the matter before it. However, a defendant's argument that personal jurisdiction does not exist can easily be waived inadvertently by the incautious litigant. In this case, an evidentiary hearing regarding personal jurisdiction was conducted in December 2012. It was only by careful preservation of this argument by trademark counsel for RAP4 while litigating in the district court that the appellate court was able to hear RAP4's claim and reverse the district court.

Practice Tip #3: This case was successfully argued before the Seventh Circuit by Paul B. Overhauser, Managing Partner of Overhauser Law Offices.

Continue reading "Indiana Trademark Law: Seventh Circuit Holds Indiana Court Lacked Personal Jurisdiction Over RAP4" »