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April 9, 2014

Indiana Copyright Litigation: Richard Bell Files Another Copyright Infringement Lawsuit

Indianapolis, Indiana - Richard Bell, an Indiana copyright attorney, filed a lawsuit in the Southern District of Indiana alleging copyright infringement by numerous Defendants. The BellPicture.bmpDefendants are: 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. Mr. Bell is both the copyright lawyer and Plaintiff in this lawsuit.

Bell is a copyright attorney 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.

Bell alleges 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. It is alleged that no Defendant had obtained the right to publish either photo but that each falsely represented otherwise to the world. Bell asserts that, as a result, Defendants have "realized and continue to realize profits and other benefits rightfully belonging to Plaintiff." Each Defendant is accused of "willfully and deliberately" engaging in copyright infringement "with oppression, fraud, and malice."

In his complaint, Bell lists the following claims:

• Count I: Copyright Infringement and Unfair Competition
• Count II: Theft

Bell asserts that he has already suffered, and is continuing to suffer, irreparable injury as a result of the alleged infringement of his copyrighted photos. Bell asks the court to declare that the Defendants' conduct in using his photos violates his rights under Indiana law and the Copyright Act and asks the court to enjoin further infringing uses of his photos. Among other remedies, he seeks treble damages under Indiana statutory authority. He also asks for an accounting of all gains, profits and advantages derived by Defendants as a result of the alleged infringement and for the maximum allowable statutory and/or actual damages for each violation. Plaintiff also seeks reimbursement of costs and reasonable attorneys' fees.

Practice Tip #1: 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 Mr. Bell to negotiate quicker settlements. Overhauser Law Offices, publisher of this Site, counsels clients on insurance coverage for insurance claims.

Practice Tip #2: This newest complaint initiates the latest of three ongoing cases filed by Mr. Bell asserting infringement of his photos. We have blogged about his copyright infringement litigation before. See here. The Indiana Lawyer also wrote today about Mr. Bell's copyright infringement lawsuits.  See here.  The Indiana Business Journal ran a similar piece.  Those articles include an interview with Paul Overhauser, Managing Partner of Overhauser law Offices.

 

Continue reading "Indiana Copyright Litigation: Richard Bell Files Another Copyright Infringement Lawsuit" »

March 31, 2014

Indiana Trademark Litigation: Agler Sues Westheimer Over Use of Stratotone Mark

Fort Wayne, Indiana - Indiana trademark attorneys for Darryl Agler, doing business as The Stratotone Guitar Company of Fort Wayne, Indiana, filed a lawsuit in the Northern District of Indiana alleging that Westheimer Corporation of Northbrook, Illinois infringed the trademarkguitarpicture.bmp "STRATOTONE" (the "Stratotone mark"), Trademark Registration No. 3,986,754 which has been issued by the U.S. Patent and Trademark Office ("USPTO"). Counterfeiting, unfair competition, and false designation of origin arising under the Lanham Act, 15 U.S.C. § 1051 et seq., and the statutes and common law of the State of Indiana have also been alleged.

Agler custom manufactures guitars and sells them across the United States. Each of Agler's guitars is hand crafted from the wood of a customer's choosing and features vintage hardware. Agler currently accepts orders for his guitars on his website at www.stratotoneguitar.com. He also displays and sells his guitars, which sell at retail for $1,250 or more, at vintage guitar shows across the nation. Angler asserts that, since at least as early as January of 2007, his marketing and promotions in connection with his guitars have included the Stratotone Mark.

Agler claims a right to exclude others' use of the "Stratotone" mark in connection with guitars based on, inter alia, ownership of trademark rights to the mark "Stratotone" conferred by U.S. Reg. No. 3,986,754 ("'754 Registration"). The '754 Registration was issued by the USPTO in 2011 as a result of a 2006 application for the Stratotone mark in association with "musical instruments, namely, guitars."

According to the complaint, at the National Association of Music Merchants ("NAMM") show in 2010, Westheimer offered and sold cheaper guitars using the Stratatone mark. Agler states that he spoke to Westheimer personnel twice at this show, notifying them that Westheimer's products were infringing the Stratotone mark. Agler alleges that he was unable to sell any of his guitars at the NAMM show that year.

Agler indicates that, since the 2010 NAMM show, Westheimer has flooded the market with lower quality, cheaper guitars that bear the Stratotone mark. These guitars retail between $199.00 and $399.00. Agler contends that Westheimer's "Stratotone" guitars have destroyed the market for Agler's more expensive Stratotone guitars.

On April 25, 2013, Westheimer filed a petition to cancel the '754 Registration (the "Cancellation Petition") with the Trademark Trial and Appeal Board. The Cancellation Petition is currently pending.

In the complaint, filed by Indiana intellectual property lawyers for Agler, the following counts are alleged:

• 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

Agler asks the court for injunctive relief; an accounting of damages; the surrender by Westheimer of items featuring the Stratotone mark; damages, including treble damages; and attorney's fees.

Practice Tip: Indiana Code §§ 35-43-4-3 and 35-43-5-3(a)(6) are criminal statutes, claimed in the complaint in conjunction with an attempt to parlay the accusation into an award for damages, costs and attorneys' fees. The Indiana Court of Appeals has discussed "theft" and "conversion" as they pertain to takings of intellectual property in several recent cases (see, for example, here and here) and has made it clear that criminal statutes often apply differently to an unlawful taking of intellectual property.

Continue reading "Indiana Trademark Litigation: Agler Sues Westheimer Over Use of Stratotone Mark" »

February 12, 2014

Sprint Weighs in with Civil Suit Against Defendants in Criminal Phone-Trafficking Scheme

Indianapolis, Indiana - In a 42-page complaint for damages and injunctive relief, trademarksprint-service-mark.bmp attorneys for Sprint Solutions, Inc. of Reston, Virginia; Sprint Communications Company L.P. and Boost Worldwide, Inc., the latter two of Overland Park, Kansas (collectively, "Sprint"), sued in the Southern District of Indiana alleging that Reginald Aldridge and Arrice Aldridge, both of Park Forest, Illinois, and Damion Transou of Humboldt, Tennessee infringed certain Sprint trademarks. These trademarks include the following Sprint marks:  Registration Nos. 1,104,943, 1,573,863, 1,712,259, 1,839,302, 2,833,134, 2,836,616, and 3,046,207.  They have been registered with the U.S. Trademark Office

Sprint sells wireless handsets ("Phones") under the brands Sprint, Boost Mobile, Virgin Mobile, payLo and Assurance Wireless for use on Sprint's wireless network at prices significantly below the wholesale prices of the Phones so that they will be more widely accessible to consumers. Sprint states that it subsidizes the cost of the new Phones for the benefit of its "legitimate" customers. Sprint asserts that it spent more than $6.6 billion on handset subsidies in 2012.

Defendants, along with their alleged co-conspirators are accused of perpetrating an unlawful scheme of bulk handset theft and trafficking to profit from the illegal acquisition and resale of new Phones for their own profit and to the detriment of Sprint. As part of this purportedly fraudulent scheme, Sprint Phones are purchased and resold multiple times. During that process, the Phones are "unlocked" so that they may be used with any service provider, including non-Sprint providers. Sprint contends that, ultimately, these Phones end up in the hands of someone other than the Sprint customer whom Sprint intended to benefit. Sprint contends that the Phones often are sold overseas, where it does not provide service. As a result, Sprint states, Defendants are profiting from this scheme by appropriating the subsidies that Sprint provides to its customers.

Defendants are also accused of unlawfully accessing Sprint's protected computer systems and wireless network, trafficking in Sprint's protected and confidential computer passwords, and/or stealing legitimate customer upgrades. It is asserted that Defendants fraudulently placed at least 65 orders on more than 17 corporate accounts to which they had no legal right of access for the purpose of ordering more than 288 items valued at over $100,000.

Finally, Sprint contends that Defendants' behavior violates the Terms and Conditions to which the sales of Phones are subject as well as willfully infringes Sprint's trademark rights.

Defendants Arrice Aldridge and Damion Transou were indicted, in part for the activities described in the complaint.

In the complaint, filed by an Indiana trademark lawyer, in conjunction with trademark attorneys from Florida and Georgia, the following counts are asserted:

• Count I: Unfair Competition
• Count II: Tortious Interference with Business Relationships and Prospective Advantage
• Count III: Civil Conspiracy
• Count IV: Unjust Enrichment
• Count V: Conspiracy to Induce Breach of Contract
• Count VI: Common Law Fraud
• Count VII: Fraudulent Misrepresentation
• Count VIII: Trafficking in Computer Passwords - 18 U.S.C. §1030(a)(6)
• Count IX: Unauthorized Access - 18 U.S.C. §1030(a)(5)(C)
• Count X: Unauthorized Access with Intent to Defraud - 18 U.S.C. §1030(a)(4)
• Count XI: Federal Trademark Infringement - 15 U.S.C. §1114
• Count XII: Federal Common Law Trademark Infringement and False Advertising - 15 U.S.C. §1125(a)(1)(A)
• Count XIII: Contributory Trademark Infringement
• Count XIV: Conversion

Plaintiffs ask the court for damages, including exemplary damages; attorneys' fees and costs; a permanent injunction prohibiting the practices described in the complaint; and the delivery to Plaintiffs of the Defendants' inventory of accused Phones.

Practice Tip: Cases of cellular phone trafficking such as these, and there are more than a few of them, are an unusual combination of contract law, trademark law and criminal law. In at least one case similar to this one, 16 defendants were also convicted of terrorism charges when it was found that the proceeds from their phone trafficking and other illegal conduct was being funneled to the terrorist organization Hezbollah.

Continue reading "Sprint Weighs in with Civil Suit Against Defendants in Criminal Phone-Trafficking Scheme " »

February 10, 2014

Swag Merchandising and Musical Group Devo Sue for Trademark Infringement

Indianapolis, Indiana - An Indiana trademark attorney for Swag Merchandising, Inc. and DEVO-picture2.bmpDevo Inc., both of California, sued in Hamilton Superior Court alleging that Your Fantasy Warehouse, Inc. d/b/a T.V. Store Online and Fred Hajjar, both of Commerce Township, Michigan, infringed Devo's Trademarks, Registration Nos. 3161662 and 3167516, which have been registered by the U.S. Trademark Office. The case has been removed from Indiana state court to the Southern District of Indiana.

Swag claims that it owns the exclusive right to license the various trademarks, copyrights and individual and collective rights of publicity of the musical group Devo. The group is best known for the song "Whip It," which hit number 14 on the Billboard chart in 1980. Swag indicates that it licenses the Devo intellectual property to third parties around the globe.

T.V. Store Online is in the business of manufacturing, marketing and distributing apparel and memorabilia featuring classic and current television programming, movies and/or music. T.V. Store Online and Hajjar have been accused of manufacturing, producing, marketing, advertising and/or retailing a product known as "Energy Dome Hats." Plaintiffs assert that these Energy Dome Hats are commonly associated with Devo but have not been licensed by Plaintiffs to Defendants. Plaintiffs further claim that consumers coming into contact with Defendants' product would "immediately recognize the same as being associated with, sponsored by and/or endorsed by" the '80s group.

In the complaint, filed by an Indiana trademark attorney, Plaintiffs assert the following:

• I: Violation of 15 U.S.C. §1125(a) of the Lanham Act
• II: Trademark Infringement - 15 U.S.C. §1114 and Common Law
• III: Counterfeiting
• IV: Dilution - 15 U.S.C. §1125(c) and New York General Business Law §360-1
• V: Common Law Unfair Competition
• VI: Statutory Right of Publicity [NB: under Indiana law]
• VII: Right of Publicity Infringement Under California Civil Code §3344
• VIII: Common Law Right of Publicity
• IX: Conversion [NB: under Indiana law]
• X: Deception [NB: under Indiana law]
• XI: Indiana Crime Victims Act

Plaintiffs ask for an injunction; the surrender of infringing materials; damages, including treble damages; costs and fees. An Indiana intellectual property lawyer for Defendants removed the case to federal court, although he noted that the removal was not a concession that the Southern District of Indiana was the proper venue for the California Plaintiffs or the Michigan Defendants.

Practice Tip:

This is at least the third case filed by Theodore Minch about which we have blogged. In at least two prior cases, LeeWay Media Group, LLC v. Laurence Joachim et al. and Leon Isaac Kennedy v. GoDaddy et al., Mr. Minch has filed in an Indiana court despite none of the parties having any connection to Indiana.

It can be surmised that perhaps the choice of Indiana as a forum might have been driven by an attempt to increase damages. I.C. §§ 35-43-4-3 and 35-43-5-3(a)(6) are criminal statutes, claimed in the complaint in conjunction with an attempt to parlay the accusation into an award for damages, costs and attorneys' fees. The Indiana Court of Appeals has discussed "theft" and "conversion" as they pertain to takings of intellectual property in several recent cases (see, for example, here and here) and has made it clear that criminal statutes often apply differently to an unlawful taking of intellectual property.

Continue reading "Swag Merchandising and Musical Group Devo Sue for Trademark Infringement" »

June 14, 2013

Leon Isaac Kennedy Sues GoDaddy, Spirit Media, Arthur Phoenix and Five Doe Defendants for Purchase of Leonisaackennedy.com

Indianapolis, Ind. - A trademark lawyer for American actor, minister, producer and writer Leon Isaac Kennedy of Burbank, Calif. sued alleging Lanham Act violations, unfair competition andKennedyLogo.JPG violations of various Indiana state statutes as a result of defendants' purchase of the domain name Leonisaackennedy.com.  The defendants are GoDaddy.com, LLC of Scottsdale, Ariz., Spirit Media of Phoenix, Ariz., Arthur Phoenix of Phoenix, Ariz. and John Does 1-5.

In a complaint for damages and injunctive relief, Kennedy alleges that the defendants have violated his intellectual property rights by purchasing a domain name consisting of Kennedy's first, middle and last name.  Spirit Media is the registrant and owner of the domain name.  goDaddyLogo2.JPGPhoenix is also listed as a registrant.  GoDaddy is the current registrar. 

Kennedy claims that no content has ever been placed on the domain website and that the defendants have offered the domain name for sale for $5,000 at a domain auction.  He asserts that this "use of the Domain violates the "Anti Cybersquatting Piracy [sic] Act."

Kennedy asserts ownership of all interests in his name, image, likeness and voice ("Kennedy right of publicity") as well as other intellectual property rights such as trademarks, copyrights and rights of association as associated with the Kennedy right of publicity.  He alleges that SpiritMediaLogo.JPGthe purchase constitutes unauthorized and illegal commercial use and registration of a domain name and violates his personal and/or property rights.  He further claims that this commercial use has siphoned the goodwill from his various property interests and asserts that he has been irreparably harmed as a result.  

The complaint lists seven claims:

·         Count I: Violation of Section 1125 (a) of the Lanham Act

·         Count II: Violation of Section 1125 (d) of the Lanham Act

·         Count III: Unfair Competition

·         Count IV: Violation of Indiana Right of Publicity

·         Count V: Conversion (I.C. § 35-43-4-3)

·         Count VI: Deception I.C. § 35-43-5-3(a)(6)

·         Count VII: Indiana Crime Victims' Act I.C. § 35-24-3-1

Kennedy asks for the immediate transfer of the domain name to him; an injunction enjoining the defendants from future use of Kennedy's intellectual property; an order directing the immediate surrender of any materials featuring Kennedy's intellectual property; damages, including treble damages; costs and attorneys' fees.

This complaint, initially filed in an Indiana state court, was removed by GoDaddy to federal court.

Practice Tip #1: The Anticybersquatting Consumer Protection Act was enacted to create a cause of action for registering, trafficking in or using a domain name confusingly similar to, or dilutive of, a trademark or personal name.  Despite alleging malicious behavior on the part of all defendants, including GoDaddy, it will be tricky to pursue this count against GoDaddy, a domain-name registrar.  Under § 1125(d)(2)(D)(ii), the "domain name registrar or registry or other domain name authority shall not be liable for injunctive or monetary relief under this paragraph except in the case of bad faith or reckless disregard, which includes a willful failure to comply with any such court order." 

Practice Tip #2: I.C. §§ 35-43-4-3 and 35-43-5-3(a)(6) are criminal statutes, claimed in the complaint in conjunction with an attempt to parlay the accusation into an award for damages, costs and attorneys' fees.  The Indiana Court of Appeals has discussed "theft" and "conversion" as they pertain to takings of intellectual property in several recent cases (see, for example, here and here) and has made it clear that criminal statutes often apply differently to an unlawful taking of intellectual property.

Practice Tip #3: This complaint was submitted by Theodore Minch, who is, coincidentally, also the attorney for LeeWay Media, about which we blogged yesterday.  As with LeeWay, none of the parties seems to have much connection to Indiana.  It will be interesting as the case develops to analyze the rationale behind the decision to file in an Indiana court.

Continue reading "Leon Isaac Kennedy Sues GoDaddy, Spirit Media, Arthur Phoenix and Five Doe Defendants for Purchase of Leonisaackennedy.com" »

April 1, 2013

Indiana Court of Appeals Holds that Forfeiture for Fraud in the Form of Copyright Infringement Requires Nexus Between Fraud and Forfeited Property

Indianapolis, Ind. - The Indiana Court of Appeals granted Indiana's petition for rehearing and reaffirmed its January ruling in favor of defendant Michael Curtis that a conviction for fraud in the form of copyright infringement was, by itself, an insufficient predicate for forfeiture.

Curtis was charged with four counts of Class D felony fraud for selling pirated movies out of his truck.  He pleaded guilty to one count of fraud, which was entered as a misdemeanor, and the remaining charges were dropped.  The state also filed a complaint for forfeiture of Curtis's truck under Indiana Code § 34-24-1-1(a)(1)(B) (2009), which allows the seizure of vehicles "if they are used . . . to transport . . . stolen [IC §35-43-4-2] or converted property."  The trial court granted the forfeiture.

The Indiana Court of Appeals reversed the decision, holding that fraud in the form of copyright infringement was neither garden-variety theft nor conversion and, thus, was not within the scope of the forfeiture statute.  We blogged about that decision here.

The state asked for and was granted a rehearing.  It argued that Yao v. State, 975 N.E.2d 1273 (Ind. 2012), required a different outcome.  The appellate court disagreed, stating that, while Yao "might support the proposition that pirated movies constitute stolen property," it failed to answer the question of forfeiture.  On that issue, the court looked to Katner v. State, 655 N.E.2d 345 (Ind. 1995).

In Katner, the Indiana Supreme Court reversed the forfeiture of a vehicle predicated on an empty container in the possession of the driver that was found to have cocaine residue.  There, the trial court had ordered the defendant's vehicle forfeited under a statute allowing forfeiture where a vehicle was used to transport a "controlled substance for the purpose of. . . [p]ossession of cocaine."  The Court held that the state had not met its burden under the forfeiture provision to show a nexus between the property to be forfeited and the underlying offense.

The appellate court in this case held that such a nexus analysis was also appropriate for the forfeiture provision which applies to stolen or converted property.  As the state had apparently had not shown a nexus between the use of the truck and the sales of the pirated movies, the court affirmed its earlier decision.

Practice Tip: It looks like Curtis can keep his truck.  However, in the January decision, the appellate court suggested that legislation would likely be required to allow forfeiture in cases involving copyright infringement.  In contrast, this current decision seems to hold that, should the required nexus between property and copyright infringement be proven at trial, a forfeiture statute could be used to seize property involved in that infringement.

Continue reading "Indiana Court of Appeals Holds that Forfeiture for Fraud in the Form of Copyright Infringement Requires Nexus Between Fraud and Forfeited Property" »

January 29, 2013

Indiana Court of Appeals Vacates Trial Court's Order to Forfeit Truck Used for Sales of Pirated Movies

Indianapolis, IN - The Indiana Court of Appeals has vacated the decision of The Honorable Timothy Oakes, Marion County Superior Court, to seize the truck of a defendant who pled guilty to fraud for having sold pirated movies from the truck.

In December 2009, the State charged Michael Curtis with felony fraud for selling pirated movies out of his truck.  The State also sought forfeiture of the truck from which the movies had been sold under 34-24-1-1(a)(1)(B) which allows for the seizure of vehicles that are used to facilitate the transportation of "stolen . . . or converted property" valued at $100 or more. 

Curtis pled guilty to one count of fraud and the remaining charges were dismissed.  The court granted the State's motion to seize the truck.  Curtis filed a motion in opposition, which was not granted, and later appealed.

Thumbnail image for 11_ram1500_outdoorsman.jpgUpon appeal, Curtis cited Dowling v. United States, 473 U.S. 207 (1985) as precedent and the Indiana Court of Appeals discussed the case.

The U.S. Supreme Court held that a copyright was "no ordinary chattel," Dowling, 473 at 216.  Theft of a copyrighted work via infringement was held to be distinguishable from theft of tangible property as it "plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud."  Id. at 218.

In Dowling, the defendant had engaged in infringement but had been convicted under the portion of the National Stolen Property Act ("NSPA") which criminalized actions wherein items, subject to other conditions, were "stolen, converted or taken by fraud."  18 U. S. C. § 2314.  The Court ruled that the language of "stolen, converted or taken by fraud" did not include copyright infringement.  Under the rule of lenity -- a rule which calls for construing ambiguous criminal statutes in favor of criminal defendants -- the Court held that the defendant had not violated the NSPA by infringing upon a copyright.

In Dowling, the rule of lenity caused the Court to construe the language of a criminal statute narrowly.  Here, the Indiana Court of Appeals was asked to interpret a statute authorizing forfeiture, another type of statute that is strictly construed.  As the language "stolen . . . or converted" did not include either fraud or copyright infringement, the order of the trial court to forfeit the truck was vacated.

Practice Tip: While the penalties for copyright infringement can be significant, the rule in Dowling will presumably prevent many statutes prohibiting theft of tangible items from being applicable to copyright infringement unless the legislature makes clear its intent to include copyright infringement in the language of the statute.

Continue reading "Indiana Court of Appeals Vacates Trial Court's Order to Forfeit Truck Used for Sales of Pirated Movies " »

January 10, 2013

Attorney and Professional Photographer Richard Bell of McCordsville, IN Sues Seventy-Three Defendants in Two Separate Complaints Filed in the Southern District of Indiana Alleging Copyright Infringement

Indianapolis, IN - Attorney and self-proclaimed professional photographer Richard N. Bell, suing on his own behalf, filed two separate complaints alleging copyright infringement and unfair competition under the Copyright Act and conversion under Indiana statutory law as a result of the unauthorized use of a photograph he had taken and which had been registered with the United States Copyright Office. Bell is seeking damages, injunctive relief and a declaratory judgment. Mr. Bell has been disciplined by the Indiana Supreme Court for violating the Rules of Professional Responsibility. (See Disciplinary Action here.)

In the first complaint, filed January 4, 2013, Bell named twenty-five separate Defendants: Greg Bayers, LLC; Leppart Associates; crazy-frankenstein.com; Hometown Rentals; Frank Kirchner; Brent Bythewood; Pixmule.com; InternMatch; Team Champion; Electraproducts; Alex Bruni; Mark Groff; Greatimes Family Fun Park; Peter Brzycki; Tom Kelly; Relociti.net; gerberbabycontest.net; MerchantCircle, Inc; Amber Russell; WSBT, Inc.; Delia Askew; Intercontinental Industries; The Friedman Foundation for Educational Choice; Linen Finder, Inc.; and Radio One of Indiana.

In the second complaint, filed January 8, 2013, Bell named the remaining forty-eight Defendants: Jerry Gordon; Demand Media, Inc.; Bryce Welker; Royal Corniche Travel Ltd.; VRBO.com, Inc.; Experience Credit Unions, LLC; Jaclothing.com; Glacier International; ABNHotels.com; 1&1 Internet, Inc.; Conde Nast Digital; Flixter, Inc.; Financing-USA.com; SodaHead, Inc.; NuMedia Marketing, Inc.; Jynell Berkshire; Tzvetelin Petrov; Los Pentecostales del Area de la Bahia; 10Best, Inc.; Keyes Outdoor Advertising; Zoom Communications Inc.; Christine Nevogt; Zarzar, Inc.; Hydro-Gear; Tam T. Dang; Lon Dunn; William McLaws, Trustee; Natl-electronic Residential Payment History Recording Agency; CVI; Constant Contact, Inc.; Charles Lantz; Schumacher Cargo Logistics; Eventbrite, Inc.; Celebrity Entertainment Corp.; Association of Equipment Manufacturers; Yardi Systems Inc.; DiamondIndyLimo.com; Marcelo Santos; National Rural Recruitment & Retention Network; Anbritt Stengele; Pinnacle Sports Equipment, Inc.; Marygrove College; RunAnyCity.com; Buzzle.com, Inc.; Charles Onuska; University of Indianapolis; and PersephoneMagazine.com.

Continue reading "Attorney and Professional Photographer Richard Bell of McCordsville, IN Sues Seventy-Three Defendants in Two Separate Complaints Filed in the Southern District of Indiana Alleging Copyright Infringement" »

February 7, 2012

Counterfeit Super Bowl Goods Lead to Federal Seizure and Arrest for Criminal Trademark and Copyright Infringement

Indianapolis, IN - Federal authorities, led by the Homeland Security Investigations division of the Immigration and Customs Enforcement (ICE), have seized counterfeit Super Bowl goods, shut down websites and made one arrest in a targeted effort to crack down on counterfeit sports goods and websites. According to a government press release, federal authorities seized fake jerseys, caps, t-shirts and other souvenirs illegally bearing NFL and other sports trademarks, trade names and copyrights.SuperBowl46.bmp According to the press release, the operation has been ongoing since October 2011 and culminated in the raids and arrest on Thursday, February 2. The total value of the goods seized was reported to be $4.8 million.

Indianapolis Metro Police Department also participated in the operation, which focused on street vendors in and around the Indianapolis Super Bowl village as well as counterfeit sellers around the world. According to a news report, a store called Off the Wall in Fort Wayne was one of the stores raided by federal agents.

The operation, dubbed Operation Fake Sweep, also targeted websites that illegally stream sports events and sell counterfeit goods. Over 300 websites were shut down. Yonjo Quiroa of Michigan was the sole person arrested. He has been charged with criminal copyright infringement based on his alleged operation of websites that illegally streamed live sporting events. According to news report, many of the websites selling counterfeit goods were from.

Practice Tip: On a related note, the Indianapolis Business Journal reported that the NFL had obtained a temporary restraining order in Marion County Superior Court that allows the NFL to seize counterfeit goods without notice. The report notes the NFL has over 20 registered trademarks such as Super Bowl, SB46, team logos and the Vince Lombardi Trophy design. IBJ has quoted Judge Cynthia Ayers as writing ""Plaintiffs have shown that notice need not be given because vendors and manufacturers of counterfeit NFL merchandise have no business identity and cannot be identified, located or notified ... and if so notified would flee with the counterfeit merchandise."
December 1, 2011

Department of Justice Launches Website to Educate about Criminal Intellectual Property Theft

Washington, D.C. - The U.S. Department of Justice and National Crime Prevention Council have launched a new website NCPC.bmpdesigned to educate the public about intellectual property theft. The site focuses on four types of criminal intellectual property theft: counterfeit drugs, pirated products, fake consumer goods, and gangs and organized crime. The site provides background on the extent of the intellectual property theft in the United States and the impact on the economy. For example the site states "More than 250,000 more people could be employed in the U.S. automotive industry if it weren't for the trade in counterfeit parts."

The website is part of a larger campaign by the Department of Justice to raise public awareness about intellectual property theft. U.S. Attorney General Eric Holdergave a speech earlier this week to launch the campaign. Attorney General Holder stated "For far too long, the sale of counterfeit, defective, and dangerous goods has been perceived as "business as usual." But these and other IP crimes can destroy jobs, suppress innovation, and jeopardize the health and safety of consumers."

Practice Tip: Intellectual property attorneys may find the new website's links to resources as well as instructions on where to report intellectual property theft useful.
November 11, 2011

Congress Considers Bill To Give Law Enforcement More Tools to Target Online Copyright Infringement

Washington, D.C. - The United States House of Representatives is considering a bill directed as providing law enforcement more tools to stop illegal online file sharing and copyright infringement. The bill, titled the "Stop Online Piracy Act," was introduced by Representative Lamar Smith of Texas on October 26, 2011. house-gov.bmpThe bill would authorize the Department of Justice to seek a court order requiring alleged infringers as well as domain names and websites to immediately cease any activities that are intellectual property criminal offenses. The bill would also create a new mechanism for seeking limited injunctive relief against the owners of domain names and websites to stop infringement occurring through their sites and domains. The bill also expands the definition of criminal copyright infringement to include public performance of copyrighted work by digital transmission or making work intended for commercial dissemination available on a computer network. The bill is also being called the E-PARISITE Act ("the Enforcing and Protecting American Rights Against Sites Intent on Theft and Exploitation Act").

The bill is drawing criticism from a number of corners. Specifically, some critics have noted that the bill would allow the government or private parties to shut down entire websites, not just infringing content. A report from John Moe of NPR's Marketplace, quotes extensively from Professor Mark Lemley of Stanford Law School, who stated ""What's remarkable about this provision is that it would allow the government and in many cases private parties to come into court, get a temporary restraining order without the participation of the accused website and shut down not just the infringing material, but the whole website."

The bill was referred to the House Judiciary subcommittee on Intellectual Property, Competition and the Internet, of which Indiana Congressman Mike Pence is a member.

September 27, 2011

The Court of Appeals for Indiana Dismisses Counterfeiting, Theft and Corrupt Business Criminal Charges Based On Alleged Trademark Infringement Suit Involving Sale of Toy Guns.

Indianapolis, IN - Chief Judge ROBB of the Court of Appeals for Indiana Indiana Court of Appeals.bmphas issued an opinion regarding An-Hung Yao and Yu-Ting Lin Houston, Texas; who were charged with counterfeiting, theft, and corrupt business influence Huntington County, Indiana Circuit Court based upon the sale of toy guns that allegedly infringement federally registered trademarks.

Defendant Lin operates a business in Houston, Texas called Generation Guns, which imports toy guns from Taiwan and sells the toy guns to the public, including the GA-112 Airsoft gun. Defendant Yao is the vice-president of a Houston bank and is a friend of Lin who allegedly occasionally helps Lin with the Generation Guns business. In 2009, firearms manufacturer Heckler & Koch engaged Continental Enterprises of Indianapolis, to investigate possible trademark infringement claims of H&K's federally registered trademarks. Continental Enterprises placed orders with Generation Guns for several guns that it believed to infringe H&K's trademarks and had the products delivered to addresses in Huntington County, Indiana. Continental Enterprises then filed a report with the Indiana State Police. The prosecuting attorney in Huntington County then charged Lin and Yao each with three counts of counterfeiting, three counts of theft, and one count of corrupt business influence "based upon the similarities between the GA-112 airsoft guns and H&K's firearm."

The defendants had filed a motion to dismiss in the trial court arguing that the court did not have jurisdiction since all the alleged act occurred in Texas and also argued that the toy gun was not a "written instrument" for the purposes of the counterfeiting crime. The trial court found that it did have jurisdiction, but dismissed the counterfeiting claim, finding that toy was not a "written instrument." In this interlocutory appeal, the Court of Appeals reversed and held that the trial court should have dismissed the case since Indiana did not have territorial jurisdiction. The court looked to Indiana Code 35-41-1-1(b), which states that Indiana has jurisdiction if conduct or a result that is an element of the crime occurred in Indiana. The court noted that jurisdiction in a criminal case is a factual issue for the jury to determine. However, the court noted that there was no factual dispute about whether the acts occurred in Texas, and therefore, the case should have been dismissed as a matter of law. The court did not address the claim that the toy gun was not a written instrument.

Practice Tip: This case is interesting to Indiana intellectual property attorneys for a number of reasons. First, it involves Continental Enterprises, a frequent litigant in Indiana intellectual property lawsuit. Indiana Intellectual Property Law News has previously blogged about Continental Enterprises cases here.

Secondly, this case addresses the unique issue of territorial jurisdiction for criminal actions. In this case the court looked to Indiana Code 35-41-1-1(b), which states that Indiana has jurisdiction if conduct or a result that is an element of the crime occurred in Indiana. The court noted that jurisdiction in a criminal case is a factual issue for the jury to determine. However, the court noted that there was no factual dispute about whether the acts occurred in Texas, and therefore, the case should have been dismissed as a matter of law. This is a different standard than Indiana courts' personal jurisdiction for purposes of civil liability.

Finally, the Court of Appeals decided that the trial court did not have jurisdiction, there by evading the issues of how a "product" like a toy gun, can be a "written instrument" for purposes of counterfeiting criminal offense. Another recent Court of Appeals opinion addressed the definition of a written instrument.

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September 23, 2011

Rare Criminal Conviction for Copyright Infringement for Unauthorized Online File Sharing of Film Black Swan

Los Angeles, CA - Wesley DeSoto of Los Angeles, California has pleaded guilty to a charge of criminal copyright infringement in a rare federal criminal prosecution of copyright infringement, which was brought in the Central District of California. Mr. DeSoto allegedly uploaded copies of the copyrighted films Black SwanThumbnail image for Thumbnail image for Black Swan.bmp, The Fighter, The King's Speech, 127 Hours and Rabbit Hole on to the website The Pirate Bay. Mr. DeSoto allegedlyBitTorrentPicture.JPG used the bittorrent protocol to share these films in January 2011 using the username "mf34inc." According to Wired.com, the FBI raided Mr. DeSoto's apartment earlier this year after being alerted of the alleged infringement by the Motion Picture Association of America. Mr. DeSoto is an actor and member of the Screen Actor's Guild. He had obtained advanced copies of the films through his SAG membership. Investigators were able to identify Mr. DeSoto as "mf34inc" by tracing username's Internet Protocol address to Mr. DeSoto.

On September 12, 2011, Mr. DeSoto and copyright infringement attorneys at U.S. Attorney's Office filed a plea agreement with the court. Mr. DeSoto agreed to plead guilty and the U.S. Attorney's Office is recommending a sentence of three years of probation. The judge in the case, however, will not be bound by the sentencing recommendation. The offense carries a maximum sentence of three years of incarceration.

Practice Tip: Mr. DeSoto was charged under 17 U.S.C. § 506(1)(C), which criminalizing the distribution of a copyrighted work that is being prepared for commercial distribution by making it available on a computer network to the public. This provision was passed in 2005. Mr. DeSoto's case is a rare prosecution under this statute.

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