HH-Inc-300x183Indianapolis, Indiana – Her Imports f/k/a EZJR, Inc. sued in the Southern District of Indiana alleging trademark infringement, trademark dilution and trade dress infringement.  The lawsuit names Her Hair, Inc., an Indianapolis hair-extension merchant, as Defendant.

Plaintiff markets and sells wigs, hairpieces and hair accessories.  It claims ownership of two trademarks, U.S. Trademark Registration Nos. 4,631,694 for the word mark “HER IMPORTS” and 5,048,646 for “HER IMPORTS” and design.  Both trademarks have been registered with the U.S. Patent and Trademark Office.

Plaintiff contends that Defendant designed and used a similar mark, asserting that it was intentionally crafted “for the sole purposes of imitating Plaintiff’s Trademark, causing actual confusion among the general public, and attempting to pass itself off as being associated with the Her Imports brand.”  Plaintiff further states that Defendant’s trademark has caused actual customer confusion.  Defendant’s mark was registered by the U.S. Patent and Trademark Office under Reg. No. 5,144,514.

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Plaintiff further accuses Defendant of copying its “unique store interior trade dress,” comprising black and white Damask wallpaper along with red trim, in Defendant’s store.

In this Indiana lawsuit, filed by trademark attorneys for Plaintiff, the following claims are made:

  • Count I: Mark Cancellation 15 U.S.C. § 1064
  • Count II: Trade Dress Infringement 15 U.S.C. § 1125(a) (as to the Store Interior)
  • Count III: Dilution by Blurring — 15 U.S.C. § 1125(c) (as to Plaintiff’s Trademark)
  • Count IV: Dilution by Blurring — 15 U.S.C. § 1125(c) (as to Plaintiff’s Store Interior Trade Dress)
  • Count IV: [sic] Recovery of Profits, Damages, Costs, and Attorneys’ Fees Pursuant to 15 U.S.C. § 1117(a)
  • Count VI: Destruction of Infringing Articles 15 U.S.C. § 1118
  • Count VII: Injunctive Relief 15 U.S.C. § 1125(c)(1)

Plaintiff seeks, inter alia, injunctive relief, the cancellation of Defendant’s trademark, damages, attorneys’ fees and costs.

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Lilly-1-300x132Indianapolis, IndianaEli Lilly and Company of Indianapolis, Indiana filed a federal lawsuit in the Southern District of Indiana alleging patent infringement. Defendants are Actavis LLC of Parsippany, New Jersey; Teva Pharmaceuticals USA, Inc. of North Wales, Pennsylvania; and Teva Pharmaceutical Industries, Ltd. of Petach Tikva, Israel.

At issue is a patent for Antifolate Combination TherapiesPatent No. 7,772,209 (“the ‘209 patent”) which has been issued by the U.S. Patent and Trademark Office.  This patent covers intellectual property embodied in Alimta®, a drug therapy used for the treatment of various types of cancer.

In a complaint filed by an Indiana patent litigator, Lilly states that Defendants filed an Abbreviated New Drug Application with the U.S. Food and Drug Administration seeking approval to manufacture and sell generic equivalents of ALIMTA® prior to the expiration of the ‘209 patent.  It asserts that this filing constitutes and/or will constitute infringement of the ‘209 patent, active inducement of infringement of the ‘209 patent, and contribution to the infringement by others of the ‘209 patent.

Lilly seeks, inter alia, injunctive relief, costs and attorneys’ fees.

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Heartland-300x75Indianapolis, IndianaHeartland Consumer Products LLC and TC Heartland LLC, of Carmel, Indiana filed suit in the Southern District of Indiana alleging trademark and trade dress infringement, dilution and unfair competition under the Lanham Act, the Indiana State Trademark Act, and the common law of the State of Indiana.

At issue are trademarks covering Splenda®-brand sweetener, which has been approved for use in over 80 countries and used in more than 4000 products globally.  In this Indiana litigation, Heartland claims that some or all of the following trademarks have been infringed: 1544079, 3346910; 4172135, 4165028, 4301712, 4172136, 4165029,4122311, 4187229, 4202774, 4230392, 4238101, 4106164, 4664653, and 4744600.  These trademarks have been registered with the U.S. Patent and Trademark Office.  In addition, Heartland claims ownership of the following pending applications for United States Trademark Registration Serial Nos. 86865337, 87012521, and 87010504.

Defendants in the lawsuit are DineEquity, Inc., Applebee’s Franchisor LLC, Applebee’s Restaurants LLC, Applebees-300x220Applebee’s Services, Inc., International House of Pancakes, LLC f/k/a International House of Pancakes, Inc., IHOP Franchising LLC, IHOP Franchise Company, LLC and IHOP FranIHOP-300x225chisor LLC.  Plaintiff asserts that all Defendants have a principal place of business in Glendale, California.  They are accused of leading customers to believe that they offer Splenda-brand sweetener when they do not.  Plaintiff contends that instead of American-made Splenda, the product offered to the customers is, in fact, “a lower-quality product of China.”

Indiana trademark attorneys for Heartland sued in federal court.  They assert:

  • Count I: Common Law Trademark Infringement and Trademark Infringement under 15 U.S.C. § 1114(1)
  • Count II: False Designation of Origin under 15 U.S.C. § 1125(a)
  • Count III: Unfair Competition
  • Count IV: Trademark Dilution under 15 U.S.C. § 1125(c)
  • Count V: Trademark Dilution under I.C. 24-2-1-13.5
  • Count VII [sic]: Preliminary and Permanent Injunctive Relief
  • Count VIII: Corrective Advertising Damages

Plaintiff asks the court for injunctive relief, costs and attorneys’ fees.  They also seek various types of damages, including actual, statutory, punitive and treble damages.

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South Bend, IndianaThe Beachwaver Co. of Libertyville, Illinois filed a new lawsuit in the Northern District of Indiana alleging infringement of patents covering its rotating curling iron. Beachwaver seeks damages as well as injunctive and other relief under 35 U.S.C. 281, et seq.

Defendants in this newest lawsuit are Xtava, LLC of Wilmington, Delaware, C&A IP Holdings, LLC of Dover, Delaware, and C+A Global of Edison, New Jersey.  They are accused of infringing two patents: U.S. Patent Nos. 9,398,796 (“the ‘796 patent”) and 9,504,301 (“the ‘301 patent”).  These patents, both titled “Hair Styling Device,” have been issued by the U.S. Patent and Trademark Office.

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Plaintiff has filed two similar Indiana lawsuits asserting infringement in recent months, one in October and another in December.  This most recent litigation, filed by Indiana patent lawyers for Beachwaver, lists two counts:

  • Count 1: Infringement of the ‘796 Patent
  • Count 2: Direct Infringement of the ‘301 Patent

Plaintiff seeks injunctive relief, costs, attorneys’ fees and damages, including treble damages.

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

Registration No.  Word Mark Click To View
5171659 STUPID SEXY FLANDERS TSDR
5171658 CHERRY BUSEY TSDR
5173350 SPECIALIZING IN COUNTY SEAT COMMUNITIES TSDR
5171378 BLUE TSDR
5171323 E-ZSERT TSDR
5171243 DEWCARTA TSDR

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The U.S. Patent Office issued the following 179 patent registrations to persons and businesses in Indiana in March 2017, based on applications filed by Indiana patent attorneys:

Patent No. Title
1 D782,748 Combined swing door and door frame of an animal enclosure
2 D782,376 Rear spoiler for a vehicle
3 D782,276 T-latch handle assembly
4 9,608,299 Battery and battery-sensing apparatuses and methods
5 9,607,306 Ambient sampling mass spectrometry and chemometric analysis for screening encapsulated electronic and electrical components for counterfeits
6 9,606,140 Acceleration sensitive indicator
7 9,606,136 Device and method for transferring reaction vessels

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Lilly-300x132Indianapolis, IndianaEli Lilly and Company of Indianapolis, Indiana filed a patent infringement lawsuit in the Southern District of Indiana asserting infringement of U.S. Patent No. 7,772,209 (‘209 Patent).  Defendant is Amneal Pharmaceuticals LLC of Bridgewater, New Jersey.

Lilly states that Amneal filed an Abbreviated New Drug Application with the U.S. Food and Drug Administration seeking approval to manufacture and sell two “Pemetrexed for Injection” products prior to the expiration of the ‘209 patent.  Lilly contends that the ‘209 patent, which was issued by the U.S. Patent and Trademark Office, protects the Pemetrexed products.

In this patent litigation, filed by attorneys for Lilly, a single count is listed, “Infringement of U.S. Patent No. 7,772,209.”  Lilly seeks relief from the Indiana court including a judgment of infringement, injunctive relief, costs and attorneys’ fees.

Practice Tip: Lilly has had some success protecting its ‘209 patent, which relates to the cancer drug Alimta®, against generic manufacturers.  See, e.g., U.S. Court of Appeals Rules In Lilly’s Favor on Alimta Vitamin Regimen Patent.

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South Bend, Indiana – Stump Printing Co., Inc., also known as Shindigz, of South Whitley, Indiana filed a patent lawsuit in the Northern Shindigz-300x126District of Indiana seeking declaratory judgment of noninfringement.

Defendant in the litigation is Electronic Communication Technologies, LLC (“ECT”) of Boynton Beach, Florida, which claims to be the owner by assignment of U.S. Patent Nos. 9,373,261; 7,876,239 and 7,319,414.  These patents were issued by the U.S. Patent and Trademark Office.

In February 2017, ECT sent a letter to Shindigz claiming that Shindigz’s “order confirmation” and “shipping confirmation” systems “infringe claims of the ECT Patents.” The letter demanded that Shindigz pay a fee of $30,000 to license the use of those systems.

In response, Indiana patent lawyers for plaintiff filed this lawsuit asking the court to find the ECT patents ineligible for patenting, not infringed, and invalid.  The complaint accuses ECT of being a “patent troll,” stating that the company makes a practice of “calibrating the amount of [its] settlement demands to be lower than the perceived cost of litigation, to try to ensure that practicing entities settle rather than pursue challenges to the eligibility of validity of the patents through dispositive motions or trial.”  The complaint also asserts that ECT and predecessor in interest Eclipse IP have filed approximately 250 patent lawsuits since 2011.

The lawsuit seeks injunctive relief, costs and attorneys’ fees as well as two counts of declaratory judgment:

  • Count I: Declaratory Judgment of Noninfringement

Count II: Declaratory Judgment of Invalidity

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SupremeCourt-300x135The U.S. Supreme Court already has a list of digital civil liberties issues to consider in the near future; that list is likely to grow.

If confirmed, President Donald Trump’s nominee to fill the late Justice Antonin Scalia’s seat on the Supreme Court—Judge Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit—will be in a position to make crucial decisions protecting innovation and fair use.  The Electronic Frontier Foundation has weighed in on several such issues that are, or may be, before the Court.

The Supreme Court has agreed to hear arguments in TC Heartland v. Kraft, a case centering on whether TC Heartland can have the infringement case against it considered in the company’s home state of Indiana instead of Delaware. EFF has supported TC Heartland, and a ruling in favor of reasonable venue limits could help tamp down on abusive patent lawsuits, which are often brought in the Eastern District of Texas despite any actual ties to that location because that court is perceived as being friendly to abusive suits.

Fort Wayne, Indiana – The Northern District of Indiana granted a motion for interlocutory appeal to the Seventh Circuit.

This Indiana copyright lawsuit involves Plaintiff Design Basics, LLC of Omaha, Nebraska, a company which “creates, Lanciamarkets, publishes and licenses the use of architectural works and technical drawings.” Defendant is Lancia Homes, Inc., a Fort Wayne company that builds homes.

During the course of litigation, Plaintiff stated that in 2013 it discovered that Defendant had infringed various copyrighted architectural works.  A search of a website archive further revealed that “Defendant had actually been advertising infringing versions of the Plaintiff’s homes since May 18, 2006.”

In February 2016, Design Basics sued Lancia Homes alleging infringement of copyrighted architectural designs. It also named several entities under which Lancia also does business, including Lancia Construction, Springmill Development, Lancia Real Estate, Lancia Homes, Springmill Wood Development, and Waterford Enterprises,

Copyright litigators for Design Basics argued that its claims were not time barred under the Copyright Act, which states that “[n]o civil action shall be maintained under [its] provisions . . . unless it is commenced within three years after the claim accrued.”  It argued that the traditional discovery rule, which provides that a claim accrues when the injured party discovers or should have discovered the allegedly infringing act, should be applied.  Citing dicta in the Supreme Court’s decision in Petrella v. Metro-Goldwyn-Mayer, Inc., Defendant Lancia Homes argued that a claim for copyright infringement accrues at the time of the infringing act.

The district court agreed with Design Basics and applied the traditional discovery rule. Lancia Homes requested that the court certify the question for interlocutory appeal.

Under 28 U.S.C. § 1292(b), a trial court may certify an order for appeal if it “involves a controlling question of law, as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate determination of the litigation.” The court found that these conditions had been met and granted Plaintiff’s motion to certify the issue for interlocutory appeal.

Practice Tip: Design Basics argued against an interlocutory appeal.  In granting Lancia Homes’ request for interlocutory appeal, the court noted that Design Basics has 24 similar lawsuits pending in the Northern District of Indiana, stating that it “would be more efficient for the Court of Appeals to consider and decide what, if any, impact Petrella has on the statute of limitations for infringement claims within this Circuit before many of the Plaintiff’s cases within this District are to proceed to trial.”

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