Indiana Intellectual Property Law News

June 19, 2019

Indiana Trademark Litigation: Warsaw-Based Medical Company, Zimmer, Inc., Sues for Trademark Infringement

South Bend, Indiana – Attorneys for Plaintiff, Zimmer, Inc. (“Zimmer”) of Warsaw, Indiana, filed suit in the Northern District of Indiana alleging that Defendants, Zimmer MedizinSystems of Irvine, California and Zimmer Elektromedizin GmbH, of Neu-Ulm, Germany, infringed its rights for multiple trademarks, as seen below:

Zimmer is seeking a permanent injunction, damages, costs, and attorneys’ fees.

According to the complaint, Zimmer is a globally trusted brand for its musculoskeletal care and has utilized the mark ZIMMER in connection with its musculoskeletal goods and services since 1927. Zimmer claims it began using the “Z” logo by 2004 and consumers have come to associate the “Z” logo with Zimmer goods and services including those services for sports medicine and podiatry. Zimmer alleges it has a great amount of commercial success and its annual sales are in the billions, with multiple millions of dollars being used for advertising and promotions each year.

Zimmer claims Defendants have offered goods and services relating to cosmetics and aesthetics applications for years, with which Zimmer had no issue. According to the complaint, the issues began when Defendants began using “Zimmer” “Zimmer MedizinSystems” and “Zimmer MedizinSysteme” (the “Unauthorized Marks”) for the treatment of sports and podiatry injuries. Zimmer alleges Defendants have also used a “Z” logo to promote and advertise their goods and services.

June 18, 2019

Indiana Trademark Litigation: Pennsylvania-Based Company Sues for Trademark Infringement of Desert Eagle Pistol

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Saeilo Enterprises, Inc. (“Saeilo”) of Greeley, Pennsylvania, filed suit in the Southern District of Indiana alleging that Defendants, Salient Arms International, Inc. and Archon Firearms, Inc., both of Las Vegas, Nevada, infringed its rights in its United States Trademark Registration for ISRAEL MILITARY INDUSTRIES and the design of the Desert Eagle (the “Registered Marks”). Saeilo is seeking injunctive relief, statutory damages, and attorneys’ fees.

Saeilo claims it owns federal trademarks for ISRAEL MILITARY INDUSTRIES and the name, shape, and design of the Desert Eagle. Saeilo further claims its Desert Eagle design is world famous and therefore it has common law trademark rights in the Desert Eagle shape and design. According to the complaint, Saeilo generates significant revenue from licensing its trademarks and designs.

The complaint alleges Defendants manufacture and sell miniature and full-size firearms. Saeilo alleges Defendants displayed for sale and sold a miniature Desert Eagle handgun while attending the Shot Show in Las Vegas, Nevada. Subsequently, it is alleged Defendants advertised the miniature Desert Eagle on their website. Saeilo is seeking damages for trademark infringement as it claims Defendants have violated 15 U.S.C. §§ 1114(1) and 1125(a) and (c).

June 14, 2019

Indiana Trademark Litigation: Wyliepalooza Ice Cream Emporium Seeks Damages for Trademark Infringement Against B.A.M. Sweets

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Wyliepalooza Ice Cream Emporium, LLC (“Wyliepalooza”) of Indianapolis, Indiana, filed suit in the Southern District of Indiana alleging that Defendants, B.A.M. Sweets, LLC d/b/a Wylie’s of Brownsburg, Indiana, Amanda R. Johnson, and Stephen B. Johnson infringed multiple common law trademarks utilized by Wyliepalooza. Wyliepalooza is seeking preliminary and permanent injunctions, profits, actual damages, costs and attorney’s fees, investigatory fees, and any further relief the court deems appropriate.

According to the Complaint, Wyliepalooza opened its ice cream shops in Indianapolis in 2013 and began operating its ice cream truck in Indianapolis since May 2014. Wyliepalooza claims its common law trademarks include “WYLIE, WYLIEPALOOZA, WYLIEPALOOZA ICE CREAM EMPORIUM and WYLIEPALOOZA ICE CREAM TRUCK” (collectively, the “Wyliepalooza Trademarks”). Wyliepalooza claims its trademarks are immediately identifying within Indianapolis as it has utilized the Wyliepalooza Trademarks throughout the area to advertise and promote its goods and services.

Wyliepalooza claims Defendants, Amanda Johnson and Stephen Johnson (the “Johnsons”), entered into an asset purchase agreement for Wyliepalooza’s ice cream shop in Brownsburg, Indiana in December 2016. With this agreement, Wyliepalooza alleges the assets sold to the Johnsons did not include the Wyliepalooza Trademarks, but gave them a limited right to use “Wyliepalooza Ice Cream Emporium Brownsburg” at that specific location. Wyliepalooza further claims that the agreement had a clause giving Wyliepalooza the right to revoke the limited use of the name if the Brownsburg location received twenty bad reviews in one quarter or the Johnsons operated the business not within the spirit of the Wyliepalooza business model. According to the Complaint, the agreement was intended to be paid off within three years at which time the Johnsons would change the name of the location to “BAM Sweets.”

June 11, 2019

Supreme Court Issues Decision in Mission Product Holdings, Inc. v. Tempnology, LLC

By Overhauser Law Offices, LLC

The United States Supreme Court issued a decision in the case of Mission Product Holdings, Inc. (“Mission”) versus Tempnology, LLC. The original case involved a trademark licensing agreement and whether the Tempnology’s rejection of the agreement during its bankruptcy deprived Mission’s right to use the trademark under the agreement. Justice Kagan delivered the opinion.

Tempnology utilized the brand name “Coolcore” for its manufactured clothing designed to stay cool during exercise. Mission and Tempnology entered into a non-exclusive licensing agreement for Mission to use the Coolcore trademarks anywhere in the world in 2012. While the agreement would have expired in July 2016, Tempnology filed for Chapter 11 bankruptcy in September 2015. Soon after, Tempnology asked for permission to “reject” the licensing agreement it had with Mission under Section 365(a). 11 U.S.C. § 365(a). Pursuant to Section 365 of the Bankruptcy Code, a debtor may reject any contract that neither party has finished performing. That rejection under Section 365 “constitutes a breach of such contract.” 11 U.S.C. § 365(a).

Both parties agreed that Mission has a claim for damages against Tempnology, however, under 365(g), Mission would be in the same boat as an unsecured creditor and would likely not receive its total damages. Tempnology also believed by rejecting the licensing agreement, Mission would no longer be able to utilize the Coolcore trademarks.

June 7, 2019

Seventh Circuit Court of Appeals Issues Opinion Affirming Denial of Rule 59(e) Motion

By Overhauser Law Offices, LLC

This case, originally filed by Barrington Music Products, Inc. in the Northern District of Indiana, was brought on appeal in the United States Court of Appeals for the Seventh Circuit. After the Northern District awarded Barrington a mere $3,228.00 in damages, Barrington filed a Federal Rule of Civil Procedure 59(e) motion asking the court to amend the damages awarded to $4,947,200.00. The Northern District denied the 59(e) motion and the Court of Appeals affirmed.

Barrington’s attorney, Sean Quinn, frequently appears before the Northern District of Indiana for intellectual property infringement litigation cases such as this one. In this case, Guitar Center, Music & Arts, and Woodwind were each named as separate defendants. The jury found the sales by Guitar Center were the only infringing sales and awarded the $3,228.00 accordingly.

After the case concluded, Barrington claims it discovered Music & Arts and Woodwind were divisions of Guitar Center and not distinct and separate entities. The Court of Appeals found that the judgment was rationally supported by the evidence and that there is no reason to conclude that the damages awarded would have been different had Guitar Center been the sole defendant. In support of this finding, the Court of Appeals pointed out that the original damages were awarded because the jury did not find that Music & Arts and Woodwind infringed on the “Ventus” mark.

June 5, 2019

Indiana Copyright Litigation: The Grove Sports Bar & Eatery of Beech Grove Sued for Alleged Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiffs, Broadcast Music, Inc. of New York, New York, Universal Millhouse Music, Combine Music Corp., Rondor Music International, Inc. d/b/a Irving Music, Dandelion Music Co., Groper Music, Rhythm Wrangler Music, Songs of Universal, Inc., Get Loose Music, Inc., Tremonti Stapp Music, Reservoir Media Management Inc. d/b/a Reservoir 416 a/k/a Reservoir One America, Barbara Nicks Music, and Concord Music Group, Inc. d/b/a Jondora Music filed suit in the Southern District of Indiana alleging that Defendants, Dman Incorporated d/b/a The Grove Sports Bar & Eatery, James D. Pettigrew, and Deann Hensley all of Beech Grove, Indiana infringed its rights in many United States Copyright Registrations of musical compositions as stated below.

Musical Composition	Registration and Date of Registration
Beat It	PAu 456-334, PA 158-771, November 16, 1982, December 27, 1982
Don’t Tell My Heart a/k/a Achy Breaky Heart	PA 534-864, July 29, 1991
Me and Bobby McGee	Ep 260746, July 18, 1969
Seven Bridges Road	Eu 106284, PA 104-190, March 21, 1969, April 13, 1981
She’s Some Kind of Wonderful a/k/a Some Kind of Wonderful	Ep 232189, June 5, 1967
Trashy Women	PAu 1 150 124, October 17, 1988
What’s Your Name	Eu 853395, PA 13-433, December 7, 1977, July 3, 1978
My Own Prison	PA 966-903, October 4, 1999
Silver Springs	RE 905-601, Eu 713078, December 10, 2004, August 31, 1976
Proud Mary	EU 91333, Ep 260526, December 27, 1968, July 11, 1969
Paradise	Eu 785460, PA 13-430, May 13, 1977, September 18, 1978

Plaintiffs are seeking statutory damages, cost, attorneys’ fees, and any other relief the Court deems appropriate.

June 4, 2019

Patent Office Issues 197 Patents To Indiana Citizens in May 2019

By Overhauser Law Offices, LLC

The U.S. Patent Office issued the following 197 patent registrations to persons and businesses in Indiana in May 2019, 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	RE047403	Calibration of sensors or measuring systems
2	D0849690	Electrical connector housing
3	D0849599	Truck dump body
4	D0849458	Merchandising display
5	D0849423	Recognition award

June 3, 2019

222 Trademark Registrations Issued to Indiana Companies in May 2019

By Overhauser Law Offices, LLC

The U.S. Trademark Office issued the following 222 trademark registrations to persons and businesses in Indiana in May 2019 based on applications filed by Indiana trademark attorneys:

Registration No.		Word Mark
5766181		GOSPEL STORY-ARC
5763604		VET UP!
5763172
5763170		WISHBONE
5762999		THE INVITATION

May 28, 2019

Indiana Patent Litigation: New Berry, Inc. Seeks Damages for Patent Infringement and Trade Secret Misappropriation

By Overhauser Law Offices, LLC

Hammond, Indiana – Attorneys for Plaintiff, New Berry, Inc., d/b/a Berry Metal Company (“New Berry”) of Harmony, Pennsylvania filed suit in the Northern District of Indiana alleging that Defendants, Todd G. Smith (“Smith”) of Grove City, Pennsylvania, and Allan J. MacRae (“MacRae”), and MacRae Technologies, Inc. (“MacRae Technologies”), both of Hayward, California, infringed its rights in United States Patent No. 10,222,124 (the “‘124 Patent”) for “Stave with External Manifold” and United States Patent No. 9,121,076 (the “‘076 Patent”) for “Stave and Brick Constrictions Having Refactory Wear Monitors and in Process Thermocouples.” New Berry is seeking actual, compensatory, exemplary, and punitive damages, pre and post judgment interest, and attorneys’ fees.

According to the complaint, New Berry is the owner and assignee of both the ‘124 Patent, which was filed February 1, 2013 and issued on March 5, 2019, and the ‘076 Patent, which issued on September 1, 2015. New Berry claims that Smith signed an Employment Agreement with New Berry in 1996, which among other things assigned all of Smith’s inventions during his employment to New Berry and prohibited Smith from using or disclosing any trade secrets that pertain to New Berry’s products and services. Smith is listed as the inventor of the ‘124 Patent and a co-inventor of the ‘076 Patent.

New Berry claims that Smith, who left New Berry in 2015, is collaborating with MacRae and MacRae Technologies and has shared New Berry’s trade secrets with them. MacRae filed a patent application November 16, 2017 that issued as U.S. Patent No. 9,963,754 (the “’754 Patent”) on May 8, 2018. The complaint alleges MacRae assigned the ‘754 Patent to MacRae Technologies on March 6, 2019. New Berry claims that the “‘124 Patent reads on the staves comprising center manifold technology described and claimed in the ‘754 Patent.”

May 23, 2019

Indiana Court of Appeals issues Opinion in Neptune Generics, LLC vs. Eli Lilly & Company Case

By Overhauser Law Offices, LLC

Judges in the Indiana Court of Appeals issued their Opinion in the case of Neptune Generics, LLC, and Fresenius Kabi USA, LLC (collectively “Petitioners”) versus Eli Lilly and Company. The Patent Trial and Appeals Board (the “Board”) previously held in its inter partes review (“IPR”) that claims 1-22 of Eli Lilly’s U.S. Patent No. 7,772,209 (the “’209 Patent”) were not unpatentable for obviousness. The Court of Appeals held the Board did not err in its analysis, that substantial evidence supported underlying fact findings and therefore the Board’s decision was affirmed.

The ‘209 Patent “relates to administering folic acid and a methylmalonic acid (“MMA”) lowering agent, such as vitamin B12, before administering pemetrexed disodium, a chemotherapy agent, in order to reduce the toxic effects of a pemetrexed, an antifolate.” There were three petitions for IPR relating to the ‘209 Patent for obviousness over various patents, patent applications, and articles. In each IPR, the Board found that the claims were not unpatentable for obviousness.

According to the Opinion, the Board found that it was known that pretreatment with folic acid reduces the toxicity relating to the administration of an antifolate, but there was not a reason to pretreat with Vitamin B12 in addition to folic acid before administering pemetrexed for cancer treatment. Further, the FDA, along with others, were skeptical of the treatment that supported their decision for nonobviousness.