Indiana Intellectual Property Law News

October 14, 2015

Indiana Patent and Trademark Litigation: Global Archery Sues Seattle-Based Company for Infringement

Fort Wayne, Indiana – An Indiana intellectual property attorney for Global Archery Products, Inc. of Ashley, Indiana commenced litigation in the Northern District of Indiana alleging trademark and patent infringement by Jordan Gwyther d/b/a Larping.org and UpshotArrows.com of Seattle, Washington.

Two patents are at issue in this lawsuit: U.S. Patent No. 8,449,413 (the “`413 Patent”) and U.S. Patent No. 8,932,159 (the “`159 Patent”). Both are entitled “Non-Lethal Arrow.” Also at issue are U.S. Trademark Registration No. 4,208,867 and 4,208,868 for ARCHERY TAG for use in connection with non-lethal arrows. The patents and trademarks have been registered by the U.S. Patent and Trademark Office.

Global contends that Jordan Gwyther d/b/a Larping.org (“Larping”) is selling and offering for sale several products including a “Crossbow Bolt,” a “Flat Tip Larp Arrow,” a “Glow in the Dark Larp Arrow” and a “Round Tip Larp Arrow.” These arrows are marketed at www.upshotarrows.com. Global asserts that Larping is violating Global’s trademark rights by, inter alia, using the ARCHERY TAG trademark on advertising and as a paid “key word” on one or more search engines in connection with the marketing of these products. Global also claims that Larping’s products infringe upon two of Global’s patents.

In addition to patent infringement and trademark infringement, Global asserts various additional claims against Larping. The counts listed in this federal lawsuit are as follows:

• Count I: Infringement of the ‘413 Patent by Larping
• Count II: Infringement of the ‘159 Patent by Larping
• Count III: Infringement of Federal Trademarks
• Count IV: False Designation of Origin/Unfair Competition
• Count V: False Advertising
• Count VI: Tortious Interference with Contractual Relations
• Count VII: Tortious Interference with Business Relationships
• Count VIII: Criminal Mischief

• Count IX: Deception

Global seeks equitable relief along with damages, including punitive damages, costs and attorney fees.

October 12, 2015

Federal Circuit Law: Laches Preserved as a Defense to Patent Infringement

By Overhauser Law Offices, LLC

Washington, D.C. – The Court of Appeals for the Federal Circuit decided the matter of SCA Hygiene v. First Quality Baby Products, a case about adult incontinence products.

At issue in the case was the legal doctrine of “laches.” The laches doctrine penalizes a plaintiff who “sleeps on” his or her rights by waiting a long time to file a lawsuit after learning of a violation of those rights. Laches, an equitable defense, protects those who would be harmed by the assertion of those rights after a plaintiff’s delay. For example, in the case of a lawsuit asserting patent infringement, laches could work against a patent owner who saw an infringing product emerge in 2000 but waited until 2015 to sue, after a significant investment of time and resources had been put into the product.

The Federal Circuit had long recognized laches as a limitation on patent owners’ rights. But a recent Supreme Court case, Petrella v. MGM, called the doctrine into question. In Petrella, the Supreme Court held that laches was not a defense in copyright cases. Given the ruling in Petrella, the Federal Circuit opted to hear this litigation en banc to determine whether laches should still be a defense in patent cases.

The court held that the defense should be preserved. Proponents of laches in the patent-infringement context (see, e.g., Electronic Frontier Foundation‘s friend-of-the-court brief), contend that patent defendants and copyright defendants are in very different positions when it comes to defending against stale claims. Patent defendants, unlike their copyright counterparts, often defend themselves by showing that the patent owner’s claimed invention was obvious at the time of filing (thus making the patent invalid). But, by delaying a lawsuit, a patent owner can make it difficult for the defendant to find evidence of what people in the field knew about or would have found obvious back when the application was filed. This is especially true in the Internet age, those proponents argue. Websites are constantly rewritten. Software code gets lost or is not documented. In sum, without the defense of laches, patent owners can sit and wait for time to destroy the evidence that an alleged infringer needs to defend herself.

The decision came out 6-5, meaning five judges of the Federal Circuit think Petrella changed the availability of the doctrine of laches in both copyright infringement and patent infringement lawsuits. Given the closeness of the decision, this case may go to the Supreme Court.

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

October 7, 2015

Patent Office Issues 223 Patents To Indiana Citizens in September 2015

By Overhauser Law Offices, LLC

The U.S. Patent Office issued the following 223 patent registrations to persons and businesses in Indiana in September 2015, based on applications filed by Indiana patent attorneys:

PAT. NO.		Title
D739,945		Blood glucose meter
D739,920		Valve
D739,723		Container
9,148,986		Multi-curved, unibody fiberglass touchscreen kiosk with interchangeable component cages
9,146,135		Meter display during power interruption
9,146,070		Modular adjustable cam stop arrangement
9,145,938		Metal matrix composite
9,145,566		Renewable engine fuel and method of producing same
9,145,451		Glucagon superfamily peptides exhbiting G protein coupled receptor activity
9,145,437		Urea compounds

October 5, 2015

179 Trademark Registrations Issued to Indiana Companies in September 2015

By Overhauser Law Offices, LLC

The U.S. Trademark Office issued the following 179 trademark registrations to persons and businesses in Indiana in September 2015 based on applications filed by Indiana trademark attorneys:

Registration No.	Word Mark	Click To View
4822217	EARTHBITES	LIVE
4822216	OVERLAND RED	LIVE
4822215	GREAT PLAINS FEAST	LIVE
4821983	MISSION EURASIA TRAIN TO LEAD. EQUIP TO SERVE.	LIVE
4821913	TRI-CON	LIVE
4821878	WEAVER CONSULTANTS GROUP	LIVE
4821834	EDGE MENTORING	LIVE
4821736	ALL SEASONS HEATING & AIR CONDITIONING CO. INC.	LIVE
4821516	TINY(ER) HOUSES	LIVE
4821488		LIVE
4823941	WAR HORSE BY RUSH	LIVE

October 2, 2015

Indiana Trademark Litigation: Indigo Vapor Enterprises Sues Indigo Vapor Company

By Overhauser Law Offices, LLC

South Bend, Indiana – Indigo Vapor Enterprises LLC of South Bend, Indiana commenced intellectual property litigation against Indigo Vapor Company, LLC, Robert Lee Martin and Charles Nandier of Tucson, Arizona.

Indigo Vapor Enterprises is in the business of selling “vaping” and e-cigarette materials across the United States and throughout the world. It alleges that Defendant sells similar goods in the same marketplace.

Plaintiff contends that Defendants infringed its trademarks, consisting of a stylized INDIGO VAPOR trademark, Registration No. 4,790,247, and a second trademark for INDIGO VAPOR, Registration No. 4,790,244 by using the Indigo Vapor Enterprises name and those trademarks to promote Defendants’ competing products. These accused uses include the operation of a website at www.indigovaporcompany.com. Both trademarks have been filed with the U.S. Patent and Trademark Office.

Plaintiff alleges trademark infringement, dilution and false designation of origin under the Lanham Act. It also asserts cybersquatting under the Anticybersquatting Consumer Protection Act (“ACPA”) and trademark infringement and unfair competition under the common law of Indiana and other states.

In this lawsuit, filed by Indiana trademark attorneys for Indigo Vapor Enterprises, the following causes of action are listed:

• 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 – Federal Cybersquatting – ACPA and Lanham Act (15 U.S.C. § 1125(d))
• Count VI – Common Law Trademark Infringement

• Count VII – Common Law Unfair Competition

Plaintiff seeks equitable relief as well as damages, costs and attorneys’ fees.

October 1, 2015

Indiana Patent Litigation: Additional Complaint Asserting Patent Infringement Filed Against Lippert

By Overhauser Law Offices, LLC

Elkhart, Indiana – Indiana patent attorneys for Lifetime Industries, Inc. and LTI Flexible Products, Inc. of Modesto, California have filed another complaint asserting patent infringement against Lippert Components Manufacturing, Inc. of Elkhart, Indiana. This lawsuit alleges that Defendant infringed Patent Nos. 6,966,590 for a “Two-Part Seal for a Slide-Out Room,” 7,614,676 for a “Resilient Seal for Mobile Living Quarters,” and 7,614,677 for a “Seal Assembly for Mobile Living Quarters.” These patents have been issued by the U.S. Patent and Trademark Office.

Lippert, a subsidiary of Drew Industries, is a supplier serving the recreational vehicle, manufactured housing, trailer, and bus industries. It offers a line of products intended to improve the mobile lifestyle. Although Plaintiffs have a principal place of business in California, both operate a manufacturing facility in Elkhart, Indiana.

Three patents – Patent Nos. 6,966,590 (“the ‘590 patent”), 7,614,676 (“the ‘676 patent”) and 7,614,677 (“the ‘677 patent”) – are at issue in this intellectual property litigation. Defendant Lippert has been accused of making, offering for sale and/or selling products that infringe upon one or more of these patents. Some of these activities purportedly occurred on two or more recreational vehicles manufactured by facilities in Indiana.

The first accused product is a two-part seal that allegedly infringes one or more claims of the ‘590 patent. The second and third accused products, both “Slide Armor” seals, purportedly infringe as many as all of the patents-in-suit.

A cease-and-desist letter was sent to Jason Lippert, the CEO of Defendant, in March 2015. Plaintiff contends that, despite this letter and the communications that followed, Defendant’s manufacture, offer for sale, and sale of each of the accused products has continued.

In this Indiana complaint, patent lawyers for Plaintiffs assert the following claims:

• Count 1: Direct Infringement of the ‘590 Patent
• Count 2: Direct Infringement of the ‘676 Patent
• Count 3: Direct Infringement of the ‘677 Patent
• Count 4: Induced Infringement of the ‘590 Patent

• Count 5: Contributory Infringement of the ‘590 Patent

Plaintiffs ask the court to enter a declaration of direct, induced and contributory infringement as well as a declaration that infringement has been willful. Plaintiffs also ask for injunctive relief; damages, including treble damages; and costs and attorneys’ fees.

September 30, 2015

Indiana Copyright Litigation: Copyright Infringement Lawsuit Removed to Federal Court

By Overhauser Law Offices, LLC

Evansville, Indiana – Responding to a complaint filed in Indiana state court by Indiana copyright attorneys, a defense lawyer filed a motion to remove the lawsuit to a federal court in the Southern District of Indiana – Evansville Division.

Plaintiff Professional Transportation, Inc. of Evansville, Indiana (“PTI”) is the former employer of Defendant Robert Warmka of Savage, Minnesota. Warmka worked for PTI from September 2012 to December 2013. PTI contends that this employment was governed in part by a trade-secrets agreement. Subsequent to leaving employment with PTI, Warmka began employment with Minnesota Coaches Inc. (“MCI”) d/b/a Crew Motion, a competitor of PTI.

PTI filed this copyright lawsuit in Vanderburgh Superior Court alleging that Warmka infringed its intellectual property by his use of Plaintiff’s copyrighted driver’s manual within MCI’s driver’s manual. PTI contends that multiple sections of PTI’s manual were reproduced nearly verbatim in MCI’s manual. PTI claims that this manual was filed with the U.S. Copyright Office “on or before 2012.” Plaintiff further contends that Defendant appropriated Plaintiff’s confidential material and trade secrets in violation of a trade secret agreement executed by both parties in 2012.

In this lawsuit, filed by Indiana copyright lawyers, the following counts are asserted:

• Count I: Indiana Trade Secret Violation
• Count II: Unfair Competition

• Count III: Copyright Infringement

Plaintiff alleges loss of business and profits and seeks injunctive relief and monetary damages.

Copyright attorneys for Warmka filed a notice of removal, stating that federal subject-matter jurisdiction was proper on the basis of both federal-question jurisdiction and diversity-of-citizenship jurisdiction.

September 28, 2015

Copyright Law: Important Win for Fair Use in ‘Dancing Baby’ Lawsuit

By Overhauser Law Offices, LLC

San Francisco, California – Federal court of appeals affirms that copyright owners must consider fair use in online copyright takedowns.

The United States Court of Appeals for the Ninth Circuit recently affirmed that copyright holders must consider whether a use of material is fair before sending a takedown notice. The ruling came in Lenz v. Universal, often called the “dancing baby” lawsuit.

In 2007, Stephanie Lenz posted a 29-second video to YouTube of her children dancing in her kitchen. The Prince song “Let’s Go Crazy” was playing on a stereo in the background of the short clip. Universal Music Group sent YouTube a notice under the Digital Millennium Copyright Act (“DMCA”), claiming that the family video infringed the copyright in Prince’s song. The Electronic Frontier Foundation (“EFF”) sued Universal on Lenz’s behalf, arguing that Universal abused the DMCA by improperly targeting a lawful fair use.

September 24, 2015

Indiana Copyright Law: Court Will Not Reconsider Dismissal of Pro Se Litigant’s Lawsuit

By Overhauser Law Offices, LLC

Indianapolis, Indiana – The Southern District of Indiana denied Plaintiff Larry Philpot’s

motion to reconsider the dismissal of his 2014 lawsuit alleging copyright infringement.

Acting as his own copyright lawyer, Philpot, a professional photographer of Indianapolis, Indiana filed a copyright infringement lawsuit against Music Times, LLC of New York, New York. He alleged that Defendant infringed his copyright on a photograph of Norah Jones taken during a performance in Milwaukee, Wisconsin. The photo had been registered with the U.S. Copyright Office as Certificate No. VAu 1-164-648.

Prior to this motion to reconsider, Philpot had last taken on the case on December 15, 2014. He had then failed to prosecute the case further. On April 17, 2015, the court set an April 30th deadline by which Philpot must show good cause for his failure to take additional actions to advance the copyright infringement lawsuit. Philpot did not respond and, on August, 26, 2015, the court dismissed the litigation.

Plaintiff Philpot, upon being notified of the court’s dismissal of the lawsuit, filed a motion asking the court to reconsider. He stated that he had not received notice of the court’s April 17th order and that his failure to prosecute had been a result of being “completely overwhelmed” due to having filed “too many actions.” On these grounds, he asked the court to reverse its earlier entry of judgment against him.

The court declined to do so. Under Fed. R. Civ. Pro. 59(e), a court is permitted to alter or amend its judgment “only if the petitioner can demonstrate a manifest error of law or present newly discovered evidence.” Because Plaintiff did not demonstrate either – and because his failure to do so would not be excused merely due to his pro se status – the court denied the motion to reconsider.

September 23, 2015

Indiana Copyright Litigation: Latitude 360 Indianapolis Sued for Copyright Infringement

By Overhauser Law Offices, LLC

Jacksonville, Florida – A copyright lawyer for Universal Music Corp., WB Music Corp., EMI April Music, Inc., Bovina Music, Inc., and B.I.G. Poppa Music, all members of the American Society of Composers, Authors, and Publishers (“ASCAP”), sued in the Middle District of Florida asserting copyright infringement against Latitude 360 Nevada, Inc., Latitude 360 Jacksonville LLC, Latitude 39 Group LLC, Latitude 360 Indianapolis LLC and Brent W. Brown. ASCAP is headquartered in New York, New York. Among the Defendants is Indianapolis restaurant Latitude 360 Indianapolis.

ASCAP is a membership association. It licenses and protects the public performance rights of more than half a million members, including songwriters, composers and music publishers. Latitude 360 Indianapolis is a place of business that offers public entertainment and refreshment.

Plaintiffs have asserted that Latitude Indianapolis 360 infringed multiple copyrighted works by permitting unlicensed performances of copyrighted works belonging to Plaintiffs. Plaintiffs claim that, since November 2012, they have attempted to contact Latitude 360 Indianapolis and/or other Defendants more than 40 times to offer an ASCAP license but that these offers were refused. Four causes of action for copyright infringement have been alleged in this copyright lawsuit.

Plaintiffs ask for injunctive relief against Defendants ordering them to cease publicly performing Plaintiffs’ compositions; and a judgment for statutory damages, attorney’s fees and costs.