Indiana Intellectual Property Law News

August 21, 2018

Indiana Copyright Litigation: Attorney Bell’s Copyright Infringement Case Against a New York Publication Company Dismissed Due to Lack of Jurisdiction

Indianapolis, Indiana – Attorney and Photographer Richard N. Bell of McCordsville, Indiana filed suit in the Southern District of Indiana alleging that Defendant, Halcyon Business Publications, Inc., of New York infringed his “Indianapolis Photo” which has been registered with the United States Copyright Office as Registration No. VA0001785115. After review of the Defendant’s Motion to Dismiss for Lack of Jurisdiction which was filed on December 29, 2017 the court granted the Motion to Dismiss on May 24, 2018.

Bell, who has brought many similar lawsuits for infringement of his Indianapolis Photo, initially filed this case on November 29, 2017 alleging violations of the Lanham Act and copyright infringement. Halcyon claimed that the Court lacked personal jurisdiction over the company as they do not maintain any offices in the state, have no employees in the state, and have no assets in the state of Indiana. They did admit that they hired one Indiana resident as an independent contractor to write for their publication, but that contractor did not write the article that utilized the Indianapolis Photo. Further, the total amounts of advertising sold to Indiana companies by Halcyon amounted to 3.26% and 4.55% in 2016 and 2017, respectively, and Indiana subscribers to the publication comprised less than 3% of their total subscribers.

Here, the Court must only look at whether the personal jurisdiction is consistent with the Federal Due Process Clause as Indiana’s long-arm statute is analyzed under this issue. For this, a defendant must have “minimum contacts” with the forum state and purposefully avail themselves “of the privilege of conducting activities within the forum [s]tate, thus invoking the benefits and protections of its laws.” Asahi Metal Indus. Co. v. Super. Ct. of Cal., 480 U.S. 102, 109 (1987). This allows a defendant to reasonably anticipate being brought into a forum in a foreign jurisdiction.

August 20, 2018

Northern District Appoints New Magistrate Judge

By Overhauser Law Offices, LLC

Hammond, Indiana – Previous United States Assistant Attorney Joshua P. Kolar will fill the vacancy made by Magistrate Judge Paul R. Cherry as Northern District of Indiana Magistrate Judge. Kolar has been an Assistant U.S. Attorney in Hammond since 2007 and was among forty-three applicants for the judgeship. The judges on the court selected Kolar from the five finalists that made it through the Magistrate Judge Merit Selection Committee.

Kolar received his undergraduate degree from Northwestern University and attended law school at the Northwestern University School of Law. As a magistrate judge, his main duties will include conducting preliminary proceedings in criminal cases and presiding over hearings and trials for civil cases and misdemeanor cases. He may also be requested to handle pretrial motions and attempts to resolve civil matters without trial by the district judges.

August 17, 2018

Indiana Patent Litigation: Indiana-based “Friendly Cooking” Sued for Patent Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiffs, Taylor Precision Products, Inc. of Oak Brook, Illinois, and The Chef’n Corporation of Seattle, Washington, filed suit in the Southern District of Indiana alleging that Defendants, Double A Concepts, LLC of Mooresville, Indiana, Aaron Farnsworth of Mooresville, Indiana, and Gemini Farnsworth of Mooresville, Indiana, infringed their rights in United States Patent No. 9,718,198 (“the ‘198 Patent”) for “Stripping Tool for Leafy Vegetables and Herbs” and United States Patent No. D776,991 (“the ‘991 Patent”) for “Stripping Tool for Leafy Vegetable and Herbs”. Plaintiffs are seeking permanent and preliminary injunctions, compensatory damages, treble damages, pre-judgment interest, costs, and attorney fees.

Plaintiff Chef’n owns the ‘198 Patent, which issued on August 1, 2017 from an application claiming the benefit to the provisional application that was filed on September 8, 2014. Plaintiff Taylor owns the ‘991 Patent, which issued on January 24, 2017 from an application filed on September 8, 2014. The Defendants own and operate a store, “Friendly Cooking,” which sells kitchen products through their website, www.friendlycooking.com.

Together, Plaintiffs allege that the Defendants offer for sale and have sold a 3 Piece Clip on Strainer Set, which includes an infringing herb stripping tool. The herb stripping tool is alleged to include each and every limitation recited in at least independent claim 1 and dependent claims 2-5 of the ‘198 Patent. Even if the herb stripping tool does not contain each and every feature literally, the Plaintiffs claim that it is still infringing under the Doctrine of Equivalents. Further, Plaintiffs assert that the herb stripping tool is substantially the same design as the ‘991 Patent, therefore infringing the ‘991 Patent.

August 16, 2018

Indiana Copyright Litigation: Attorney Richard Bell Sues Local Realtor for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorney Richard Bell of McCordsville, Indiana filed suit in the Southern District of Indiana alleging that Defendant, Amy Polston, infringed his rights to the “Indianapolis Photo” registered on August 4, 2011 with the US Copyright Office, Registration No. VA0001785115. Plaintiff is seeking actual and statutory damages, attorneys’ fees, and any other relief as is just and proper.

Bell, who has filed numerous similar cases, took the Indianapolis Photo in March 2000. He subsequently posted the photo online in August 2000 and registered the photo with the US Copyright Office nearly 11 years later. Bell alleges that Polston used the Indianapolis Photo on a website she created to promote and advertise her business in the Indianapolis area. He further alleges that Polston falsely claimed to Trulia.com, the profile host, that she owned the copyrights of all images and photographs used on her profile including the Indianapolis Photo. Bell asserts that Polston began using the Indianapolis Photo on her website beginning in 2014 without paying for the use or licensing the photo from him.

Plaintiff has filed this suit as Polston has refused to pay for the unauthorized use and has not agreed to be enjoined from using the Indianapolis Photo. As such, Bell claims that Polston is vicariously liable for each downloaded copy of the Indianapolis Photo by each third-party that downloaded it from her website. He also claims that she is liable for all profits resulting from these downloads and copyright infringement, even if she did not know that any use of the Indianapolis Photo would infringe Bell’s copyright.

August 15, 2018

Indiana Copyright Litigation: Indiana Artist Files Copyright Infringement Case Over Unauthorized Derivative Works

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Michel Keck of Jefferson Township, Owen County, Indiana, filed suit in the Southern District of Indiana alleging that Defendants, John Mark Lawrence d/b/a Mark Lawrence Art Gallery of Alpharetta, Georgia, and DOES 1 through 25 infringed numerous pieces of artwork. Plaintiff is seeking judgment, actual damages, statutory damages, cost of litigation, and reasonable attorney’s fees.

Keck is a successful abstract and mixed media artist. She opened an online art gallery and her own fine art publishing company in 2006. Over 1,500 of her original paintings had sold by the end of 2006 to art collectors throughout the world. Keck has registered 22 original paintings (the “Works”) with the United States Copyright Office.

Defendant Lawrence gave an interview in 2009 stating that he creates his art by digitally manipulating existing images using Photoshop and other such computer programs. In April 2014, Keck was approached by an online distributor, Framed Canvas Art, and was given Lawrence’s contact information as a reference. In response to Keck’s email seeking information about the distributor, Lawrence stated, “I just took a look at your art – wow! You have a new fan.” Over three years later in September 2017, Keck found numerous art pieces for sale attributed to Lawrence that appeared to be unauthorized derivatives of her Works. It looked as though Lawrence would take one of Keck’s Works and then mirror or rotate it before running it through a computerized filter (creating “Unauthorized Derivative Works”).

August 13, 2018

Indiana Copyright Litigation: Dr. Keith Bell Files Suit Against an Indiana Resident and USA Volleyball for Copyright and Trademark Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Keith F. Bell, Ph.D. of Texas filed suit in the Northern District of Indiana alleging that Defendants, Lloy Ball, of Angola, Indiana, and USA Volleyball of Colorado Springs, Colorado infringed his rights in Copyright Registration Number TX-0002-6726-44 titled “Winning Isn’t Normal” (the “Infringed Work”) and his rights in Trademark Registration Number 4630749. Plaintiff is seeking judgment awarding damages, actual damages, profits, statutory damages, attorneys’ fees, injunctive relief, pre-judgement, and post judgment interest.

The Infringed Work was first published in 1982 and registered with the U.S. Copyright Office in 1989. Dr. Bell continues to offer for sale and market his book and derivative works such as posters and t-shirts with a specific passage known as the “WIN Passage”. He has offered and continues to offer licenses to those that may wish to publish or utilize the WIN Passage. The word mark “WINNING ISN’T NORMAL” has also been registered with the United States Patent and Trademark Office with Registration No. 4630749 for printed matter.

Dr. Bell alleges that Defendant Ball posted a representation of the WIN Passage on his Twitter account on or about November 12, 2015. This post received at least 51 “retweets” and 201 “likes” from Ball’s over 2,000 followers. Dr. Bell also claims that Defendant USA Volleyball posted a representation of the WIN Passage on their Twitter account on or about November 20, 2015 that included a “retweet” of the post by Defendant Ball. This post received at least 30 “retweets” and over 7,000 “likes” from USA Volleyball’s over 123,000 followers. Cease and desist letters were sent to Ball and USA Volleyball on July 15, 2016 and April 21, 2017, respectively. Both Defendants removed their posts shortly after the letter was sent to Ball, automatically removing all retweets of the post. While the Defendants have acknowledged liability to the Plaintiff, they have not agreed to enter into a settlement agreement to protect the Plaintiff’s rights and compensate him for his injuries, leading to this suit for both copyright and trademark infringement.

August 9, 2018

Indiana Trademark Litigation: Overhauser Law Offices, LLC Represent the Prevailing Parties Over Indiana-Based Vera Bradley

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – Attorneys for Plaintiff, Vera Bradley Designs, Inc., of Roanoke, Indiana filed suit in the Northern District of Indiana alleging that Defendant, Austin Devin 2 Denny Boys, LLC, infringed multiple trademarks of the Plaintiff. Overhauser Law Offices, LLC represented the Defendant Austin Devin 2 Denny Boys LLC and Darlene Nicholas, who filed a Motion to Dismiss for improper venue and prevailed on July 30, 2018.

Plaintiff currently holds more than 900 copyright registrations, 35 federal trademark registrations, and has 17 pending federal trademark applications. The Plaintiff alleged in its complaint that the Defendants operate eBay accounts that they use to sell counterfeit Vera Bradley items and these acts infringe Vera Bradley’s trademarks and copyrights. All Defendants were sent cease and desist letters on behalf of the Plaintiff via counsel on July 26, 2017. On August 1, 2017, all Defendants party to the Motion to Dismiss responded through counsel and agreed to stop selling the counterfeit items, however, the Plaintiff alleged they did not cease their activities and filed suit.

The Defendants moved to dismiss Vera Bradley’s Complaint and claimed that because a substantial part of the events leading to the Plaintiff’s claims did not occur in the Northern District of Indiana, venue was improper. Further, Defendant Nicholas, claimed that the Court did not have personal jurisdiction over her. The Plaintiff countered that there were five specific instances in which the counterfeit merchandise was purchased by its employees within the Northern District of Indiana from the Defendants. They also claimed that venue was proper because they suffered harm in the District. As to Defendant Nicholas, the Court held that the Plaintiff did not give any persuasive argument as to how the Northern or Southern District Courts of Indiana could have general or specific personal jurisdiction over her in this case as she resides in Florida. Therefore, the Court was unable to transfer the case to the Southern District of Indiana, which may have been a proper venue for the other Defendants involved.

August 7, 2018

Indiana Copyright Litigation: Attorney Bell Strikes Again Suing The Association for Behavior Analysis, Inc. for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorney Richard Bell of McCordsville, Indiana filed suit in the Southern District of Indiana alleging that Defendant, The Association for Behavior Analysis, Inc., infringed his rights to the “Indianapolis Photo” registered on August 4, 2011 with the US Copyright Office, Registration No. VA0001785115. Plaintiff is seeking actual and statutory damages, costs, reasonable attorneys’ fees, and any other relief as is just and proper.

Bell has sued many in Indiana federal courts asserting copyright infringement on his own behalf. See:

In this case, Defendant created a website for their business to promote an Indianapolis convention [http://hoosieraba.com/category/Indianapolis]. Plaintiff alleges Defendant published the Indianapolis Photo on that site without his permission. Bell has fully controlled his photograph from 2000 and registered it with the US Copyright Office in 2011. He discovered this alleged infringement of his photo in May 2018 with the use dating back to 2014. The Plaintiff not only alleges copyright infringement, but also vicarious liability for each copy of his photograph downloaded by third-parties from the Defendant’s website.

August 6, 2018

Indiana Copyright Litigation: Bell Sues Indiana Pool Table Moving Company for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana –Plaintiff and Attorney, Richard N. Bell of McCordsville, Indiana, filed suit in the Southern District of Indiana alleging that Defendant, Harold Fischer, infringed his rights to the “Indianapolis Photo” registered on August 4, 2011 with the US Copyright Office, Registration No. VA0001785115. Plaintiff is seeking actual and statutory damages, costs, reasonable attorneys’ fees and other relief deemed just and proper.

Bell is notorious for filing many lawsuits on his own behalf asserting copyright infringement in Indiana federal courts. He has published or licensed the Indianapolis Photo in compliance with copyright laws since March 2000. The photograph was first published online on August 29, 2000 by Bell on his Web shots account. Almost eleven years later, Bell registered the photograph with the US Copyright Office.

Defendant, Fischer, created a website for his Indianapolis-based business at http://pooltablemoving.com/. It is alleged that he committed copyright infringement by including the Indianapolis Photo on his website from 2016 to 2018 without properly licensing from Bell. The Plaintiff also claims that Fischer is vicariously liable for each downloaded copy of the Indianapolis Photo by any third-party user from the business website.

August 2, 2018

Patent Office Issues 210 Patents To Indiana Citizens in July 2018

By Overhauser Law Offices, LLC

The U.S. Patent Office issued the following 210 patent registrations to persons and businesses in Indiana in July 2018, based on applications filed by Indiana patent attorneys:

Overhauser Law Offices, the publisher of this site, assists with US and foreign patent searches, patent applications and assists with enforcing patents via infringement litigation and licensing.

	Patent No.	Title
1	D0824213	Cup
2	10039008	Method and apparatus for wideband spectrum sensing
3	10038397	Multiple engine condition matching via electrical power extraction control
4	10037674	Equipment, dressing, and garment wireless connectivity to a patient bed
5	10037525	Control system and method