Indiana Intellectual Property Law News

October 15, 2019

Design Basics Ordered to Pay Over $300,000.00 in Attorneys’ Fees and Costs

Fort Wayne, Indiana – Attorneys for Plaintiff, Design Basics, LLC and W.L. Martin Home Designs, LLC, filed suit in the Northern District of Indiana alleging that Defendants, Heller & Sons, Inc. d/b/a Heller Homes and Heller Development Corporation, infringed numerous copyright registrations. The Court granted the Defendants’ Motion for Summary Judgment on June 24, 2019. Design Basics filed its Notice of Appeal on July 19, 2019. Although Design Basics had filed its Notice of Appeal, Defendants submitted their Petition for Attorney Fees and Costs and were awarded $310,759.34.

According to the Opinion and Order dated September 3, 2019, the “Court invited Defendants to file a request for attorneys’ fees pursuant to 17 U.S.C. § 505, and further invited Design Basics to file a response in opposition.” The Court cites an exception from general rules of jurisdiction following a filing of a notice of appeal from Terket v. Lund, 623 F.2d 29, 33-34, in which a district court may enter an award for attorneys’ fees while the merits of the case are on appeal. In this case, Defendants submitted their Petition for Attorney Fees and Costs and Design Basics submitted its response in opposition.

District courts consider at least four different factors listed in Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n. 19 (1994) when determining whether to award attorneys’ fees, including: “(1) frivolity of the claim; (2) motivation in filing the claim; (3) objective reasonableness of the claim; and (4) considerations of compensation and deterrence.” Here, the Court found that while the Defendants argued the Seventh Circuit’s decision in Design Basics, LLC v. Lexington Homes, Inc., 858 F.3d 1093 (7th Cir. 2017) rendered all copyright cases filed by Design Basics frivolous, Design Basics may still recover on copyright infringement claims although it may be difficult. When analyzing Design Basics’ motivation for filing its infringement claims, the Court noted that Design Basics “realized approximately $5 million in net litigation profits in 2016 and 2017 alone, while the gross revenues for Design Basics during the same period of time were approximately $2.5 million.” Based off this finding, among others, the Court believes that this case, and most infringement cases filed by Design Basics, are filed due to a financial motive.

October 10, 2019

Closure Systems International Sues Novembal USA Seeking Correction of Inventorship

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Closure Systems International, Inc. (“CSI”) of Indianapolis, Indiana, filed suit in the Southern District of Indiana seeking a correction in inventorship for two U.S. Design Patents issued to Defendant, Novembal USA Inc. (“Novembal”) of Edison, New Jersey. The patents at issue in this case are United States Patent Nos. D836,442 (the “‘442 Patent”) and D838,171 (the “‘171 Patent”) (collectively the “Patents in Suit”). CSI is seeking preliminary and/or permanent injunctions, attorneys’ fees, costs, and any other relief the Court deems proper.

CSI claims three of its employees, Arnold Benecke, Bill Moll, and John Edie, developed a closure for a bottle (the “Option 2 Closure”) for its customer, Nestle Waters (“Nestle”) on or about January 27, 2011. This invention was allegedly assigned to CSI pursuant to assignments from the three inventors. According to the Complaint, on March 9, 2011, CSI sent a presentation concerning the Option 2 Closure and another option to Nestle that stated that it would have “Prototypes molded by April 1” and “Small quantity of slit samples will be sent by April 13”. CSI claims it emailed Nestle a drawing of the Option 2 Closure on March 10, 2011.

CSI claims Nestle trialed different closures from CSI and at least two other competitors, including Novembal, and CSI delivered 100 samples of the Option 2 Closure to Nestle in or about June 2011. CSI alleges each of the manufacturers at the Nestle trials witnessed each closure and saw all the samples provided to Nestle. After the trials, Nestle awarded the business to Novembal, not CSI.

According to the Complaint, Nestle asked CSI to replace Novembal and inquired as to its ability to supply the Option 2 Closure in early 2018. CSI claims it began supplying a similar closure to the Option 2 Closure to Nestle, but it was slightly different (the “New Closure”). On or about May 24, 2019, CSI claims it was informed by Nestle that the New Closure infringed one or more Novembal patents. Just six days later, Novembal allegedly sent a cease and desist letter to CSI stating that the New Closure infringed the ‘442 Patent.

October 9, 2019

Formstack, LLC Sued for Alleged Patent Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Transaction Secure, LLC (“Transaction”) a foreign limited liability company, filed suit in the Southern District of Indiana alleging that Defendant, Formstack, LLC (“Formstack”) of Fishers, Indiana, infringed its rights in United States Patent No. 8,738,921 (the “‘921 Patent”) for “System and Method for Authenticating a Person’s Identity Using a Trusted Entity”. Transaction is seeking damages, attorneys’ fees, and any further relief the Court deems proper.

Transaction claims the ‘921 Patent, issued on May 27, 2014, teaches an advancement over two-factor authentication for protecting sensitive information from identity theft. Formstack’s website allegedly operates as the “Accused Product”. Transaction alleges that the Accused Product infringes at least Claim 1 of the ‘921 Patent as it is a trusted entity to authenticate account holders “by using non-personal information for securing personal data.”

According to the complaint, users provide personal information to Formstack to create an account from a trusted computer system. Formstack then allegedly stores the user information confidentially and provides the user with an authorization login that is associated with the user but does not contain the user’s personal information. After the user requests resource access from Formstack using their login, Formstack allegedly “provides an authorization code to obtain the access token and ID token for accessing the services”. Transaction claims “the user identity is verified by the resource server by using the authorization code to allow the user to access the code” in the Accused Product. Transaction claims Formstack’s Accused Product infringes the ‘921 Patent in violation of 35 U.S.C. § 271. As such, Transaction is seeking damages pursuant to 35 U.S.C. §§ 284 and 285.

October 7, 2019

Engineered by Schildmeier Granted Over $1.4 Million Dollars in Default Judgment

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Judge Richard L. Young in the Southern District of Indiana granted default judgment in favor of Engineered by Schildmeier, LLC (“Engineered”) and against WUHU Xuelang Auto Parts Co., LTD and Amazing Parts Warehouse (collectively the “Defendants”). Engineered filed suit seeking a declaratory judgment of both patent and trade dress infringement in late 2018. The patent allegedly infringed in the complaint is United States Patent No. D 816,584 (the “‘584 Patent”) for a “Pair of Bed Rail Stake Pocket Covers”.

When a defendant fails to plead or defend a case against them within the allotted time frame, they are in default. A plaintiff may motion the court for a default judgment, which is a binding judgment of the court for failure of the defendant to answer the allegations. The court can then grant a default judgment. If a proof of damages hearing is necessary, the judge can order such a hearing, but the defendant may not appear at that point to defend the amount of damages asserted by the plaintiff. A default judgment may be set aside upon request of the defendant, but they must show a good defense and legitimate excuse as to why they were in default to the court.

In this case, neither of the Defendants plead or otherwise defended themselves against the allegations set forth in Engineered’s complaint. As such, the court granted Engineered’s motion for default judgment and awarded damages accordingly. First, the Court found that the Defendants infringed the ‘584 Patent. Second, the Court found the Defendants violated Section 43(a) of the Lanham Act by infringing Engineered’s trade dress. Third, the Defendants were enjoined from importing, selling, or offering for sale any imitations of the ‘584 Patent. Finally, Engineered was awarded a total of $1,424,070.00. The damages award was calculated by adding $470,020.00 in lost profits; $940,040.00 in treble damages for willful infringement; $13,610.00 in attorneys’ fees; and $400.00 in court costs. By failing to appear and defend themselves, not only will defendants have default judgments granted against them, but as shown in this case, extremely large damages may also be imposed.

October 4, 2019

Custom Design and Paint Company, The Art of Design, Inc., Seeks Damages for Alleged Copyright Infringement

By Overhauser Law Offices, LLC

South Bend, Indiana – Attorneys for Plaintiff, The Art of Design, Inc. (“TAOD”) of Elkhart, Indiana, filed suit in the Northern District of Indiana alleging that Defendant, Sharpline Converting, Inc. (“Sharpline”) of Wichita, Kansas, infringed its rights in United States Copyright Registration Nos. VA 1-979-388 and 2-149-309 (the “‘388 Design”) and VA 1-982-002 and 2-149-316 (the “‘002 Design”). TAOD is seeking judgment, actual damages, profits, and any further relief as the Court deems proper.

TAOD claims it is a highly respected and successful business engaged in custom airbrushing and the designing of fine art. According to the complaint, TAOD employs very talented individuals who create original two-dimensional designs (the “TAOD Designs”) that are applied to boats, RVs, airplanes, cars, and helicopters. TAOD claims the TAOD Designs are copyrightable and that it owns all right, title, and interest in the TAOD Designs. The ‘388 Design and ‘002 Design are both designs known as the “Shatter Graphics”.

Per the complaint, Sharpline designs and manufactures vinyl graphics for a diverse market, including the marine industry. Sharpline allegedly sells vinyl graphic image products to Pontoon Boat, LLC, doing business as, Bennington and Bennington Marine (“Bennington”). According to the complaint, Bennington provided Sharpline with unauthorized copies of the Shatter Graphics in 2012, which Sharpline then copied, created a vinyl graphic product, and distributed to Bennington for application on Bennington’s boats and boat motors. TAOD claims one of the images provided to Sharpline from Bennington was a photograph of one of Bennington’s boats painted by TAOD with the Shatter Graphics. TAOD alleges Sharpline has reproduced, copied, and distributed unauthorized copies of the TAOD Designs and as such is seeking damages for copyright infringement and inducing copyright infringement.

October 2, 2019

Patent Office Issues 196 Patents To Indiana Citizens in September 2019

By Overhauser Law Offices, LLC

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.

The U.S. Patent Office issued the following 196 patent registrations to persons and businesses in Indiana in September 2019, based on applications filed by Indiana patent attorneys:

	Patent No.	Title
1	PP030888	Rugosa shrub rose plant named `KAPswehp`
2	D0860984	Case for a mobile device
3	D0860685	Mattress
4	10,424,975	Sensor module and kit for determining an analyte concentration
5	10,422,797	Electrochemiluminescence method of detecting an analyte in a liquid sample and analysis system

October 1, 2019

198 Trademark Registrations Issued to Indiana Companies in September 2019

By Overhauser Law Offices, LLC

The U.S. Trademark Office issued the following 198 trademark registrations to persons and businesses in Indiana in September 2019 based on applications filed by Indiana trademark attorneys:

Registration No.	Word Mark
5868255	SAND CREEK
5868145	AMBUSH
5867820	ROSE ACRES
5867651	CREAM TATTOO
5867553	SUMMER PROJECT

September 26, 2019

Furrion, LLC of Elkhart Sued for Alleged Patent Infringement

By Overhauser Law Offices, LLC

Elkhart, Indiana – Attorneys for Plaintiff, Display Technologies, LLC (“Display”) of North Miami, Florida, filed suit in the Northern District of Indiana alleging that Defendant, Furrion, LLC of Elkhart, Indiana, infringed its rights in United States Patent No. 9,300,723 (the “‘723 Patent”) for “Enabling social interactive wireless communications”. Display is seeking damages, pre-judgment and post-judgment interest, and any further relief the court deems proper.

Display is claiming Furrion has infringed and continues infringing one or more claims of the ‘723 Patent including at least Claims 12, 14, 16, 17, and 20. According to the complaint, Display is claiming at least Furrion’s DV7100 media system with NFC and Bluetooth wireless technology (the “Product”), among other Products infringe the ‘723 Patent.

Display claims the Product infringes Claim 12 because it receives media files from a wireless mobile device via Bluetooth or NFC and the Product includes a security measure such as a Bluetooth PIN, among other features. Regarding Claim 14, Display claims it is infringed by the transfer of a digital media file from the wireless mobile device to the Product completely bypassing the security measure. Further, Display claims the Product infringes Claims 16, 17, and 20 because the Product is an audio system with a Bluetooth connection, and “the digital media file is provided by the wireless mobile device.” As such, Display is seeking damages for patent infringement.

September 25, 2019

Indiana Trademark Litigation: Fanimation, Inc. Sues New Jersey Based Company for Alleged Trademark Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Fanimation, Inc. of Zionsville, Indiana, filed suit in the Southern District of Indiana alleging that Defendant, Décor Selections, LLC d/b/a Lighting Merchant (“Lighting Merchant”) of Ocean, New Jersey, infringed its rights in United States Trademark Registration No. 2,318,516 for FANIMATION (the “Registered Mark”). Fanimation is seeking injunctive relief, judgment including statutory damages, and attorneys’ fees.

Fanimation claims it owns the Registered Mark for “electric wall mounted fans, electric free-standing floor pedestal fans and electric ceiling fans for non-industrial use.” Further, Fanimation alleges it has been using the Registered Mark, FANIMATION, since at least 1984 and because it has filed all proper paperwork and the Registered Mark has been registered more than five years, the Registered Mark is now “incontestable” pursuant to 15 U.S.C. §1065. According to the complaint, Fanimation sells its fans in a variety of ways through direct sales via its website or showrooms, or through Authorized Dealers. Authorized Dealers have entered into a written Authorized Dealer Agreement (“ADA”) to sell Fanimation fans through specially trained staff. Fanimation claims “original buyers” of its fans from direct sales or those through an Authorized Dealer receive a warranty that is redeemable with proof of purchase, purchase order, or invoice number.

Per the complaint, Fanimation claims Lighting Merchant is and has been selling fans bearing the Registered Mark on its website without authorized use via an ADA. Fanimation claims that Lighting Merchant’s lack of warranty and failure to specially train staff on Fanimation’s products make “the fans sold by Lighting Merchant materially different from the genuine FANIMATION® fans offered by Fanimation and its Authorized Dealers.” Fanimation believes consumers are likely to be confused when purchasing fans from Lighting Merchant as to the source and quality of the fans.

Fanimation allegedly sent a cease and desist letter to Lighting Merchant on or about January 19, 2019. Fanimation believes Lighting Merchant purchases fans from Authorized Dealer(s) and then sells them second-hand. These acts, if true, would breach at least one of the terms of the ADA signed by the Authorized Dealer(s) selling to Lighting Merchant. As such, Fanimation is seeking injunctive relief and seeking damages for trademark infringement, false designation of origin, dilution, unfair competition, and unjust enrichment.

September 17, 2019

Two Songs of Faith Go Head to Head in Copyright Infringement Battle

By Overhauser Law Offices, LLC

South Bend, Indiana – Attorneys for Plaintiff, Vincent A. Ambrosetti, individually and as Trustee of The King’s Ministrels Charitable Trust aka International Liturgy Publications (“ILP”), filed suit in the Northern District of Indiana alleging that Defendants, Oregon Catholic Press (“OCP”) of Portland, Oregon, and Bernadette Farrell, both allegedly doing business in the State of Indiana, infringed the rights in United States Copyright Registration No. PA0000525379 for the songbook “I Will Sing”. Ambrosetti is seeking injunctive relief, statutory damages, and attorneys’ fees.

According to the Complaint, Ambrosetti is the author and copyright owner of the song book “I Will Sing” and the trustee of ILP, another copyright claimant in this case. OCP allegedly acquires music licenses and sells and distributes music throughout the United States. Farrell, a citizen of the United Kingdom, also allegedly sells and distributes music throughout the United States.

Ambrosetti claims the musical work “Emmanuel” is a part of the “I Will Sing” songbook and that he applied for copyright registration for the individual work “Emmanuel” on August 12, 2019, which is still pending. “Emmanuel” was allegedly first published in 1980 in a song book entitled “Singing Holy”. The song was recorded five years later with the National Philharmonic Orchestra of London and performed at multiple national conventions.