Indiana Intellectual Property Law News

September 21, 2018

Indiana Copyright Litigation: Indiana’s Chicks On The Right Sued for Copyright Infringement

Indianapolis, Indiana – Attorneys for Plaintiff, Gabriella Bass of Brooklyn, New York, filed suit in the Northern District of Indiana alleging that Defendant, COTR, LLC of Indianapolis, Indiana, infringed her rights in United States Copyright Registration No. VA 2-055-082. Plaintiff is seeking damages, statutory damages, costs, expenses, attorneys’ fees, pre-judgment interest, and other relief as the Court may deem just and proper.

The copyright at issue in this case is that for photographs of the fearless girl statue in New York City with the addition of a urinating dog. Bass licensed the photographs that she took to the New York Post. They subsequently ran an article featuring the photographs on May 29, 2017 with Bass listed as the photographer. Following the release of the New York Post article, COTR ran an article on their website featuring Bass’ photographs. COTR, however, failed to license the photographs from Bass or obtain her permission or consent to publish the photographs in their article.

Bass is suing for copyright infringement under 17 U.S.C. §§ 106 and 501 for COTR’s unauthorized use of her photographs. She is seeking damages and statutory damages for this violation for up to $150,000 per work infringed under 17 U.S.C. §504. Bass also alleges that COTR violated 17 U.S.C. § 1202(b) by removing copyright management information identifying Bass as the photographer. Statutory damages under this violation fall under 17 U.S.C. § 1203(c)(3) and amount to at least $2,500 up to $25,000 per violation.

September 14, 2018

WHOIS Information Update

By Overhauser Law Offices, LLC

While finding the owner of a domain name has traditionally been an easy process, as of May 25, 2018, access for WHOIS information has changed. In light of the General Data Protection Regulation (“GDPR”) adopted by the European Union (“EU”) in April 2016, the Internet Corporation for Assigned Names and Numbers (“ICANN”) has had to attempt to form new policies to protect registrant information. The Temporary Specification for gTLD Registration Data (“Temporary Specification”) is ICANN’s attempt to comply with the GDPR while maintaining the WHOIS system by restricting most personal data. While the personal data will not be publicly available without some effort, those with a legitimate interest in the contact information will be able to request such information through their domain registrar. They may also be able to contact the registrant through anonymized email or web forms.

These changes are really hitting home for trademark owners who may not able to file a complaint directly against the domain name registrant due to the information being restricted. While not all WHOIS information is unavailable, complainants in most cases will have extra steps that they must take in order to file a complaint. If the information is not available on WHOIS, the complainant will have to verify that the information is not publicly available in the complaint. After the complaint has been filed, FORUM will contact the registrar to obtain the restricted contact information. For Uniform Domain-Name Dispute-Resolution Policy (“UDRP”) cases, the complainant will have to amend the complaint with the newly received registrant contact information. For Uniform Rapid Suspension Systems (“URS”) cases, complaints may not be amended to include additional registrant information under the URS Procedure and Rules, however, the Temporary Specification allows FORUM to add registrant information after the complaint is filed.

The Expedited Policy Development Process (“EPDP”) initiated by ICANN will consider the adoption of the temporary specification and will likely include a discussion of a standardized access model for the restricted registration information. For any questions, you can contact the Director of Arbitration for FORUM, Renee Fossen by mail at 6465 Wayzata Blvd., Suite 480, Minneapolis, MN 55405, by phone at 952-516-6456, or email at rfossen@adrforum.com.

September 6, 2018

Sweeney to Fill Vacancy in Southern District

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Partner from Barnes & Thornburg, James Sweeney, has been unanimously voted to fill the vacancy created by Judge Sarah Evans Barker in the Southern District of Indiana. In November 2017, Sweeney was nominated to fill the vacancy by President Donald Trump. Sweeney will be the first judge to join the U.S. District Court for the Southern District of Indiana in eight years.

Prior to attending law school, Sweeney earned a B.S. with merit from the United States Naval Academy. He then graduated from the University Notre Dame Law School magna cum laude in 1996. Sweeney subsequently served as a judicial law clerk for the Honorable John Daniel Tinder of the U.S. District Court of the Southern District and for the Honorable James L. Ryan of the U.S. Court of Appeals for the Sixth Circuit before joining Barnes & Thornburg.

September 5, 2018

Patent Office Issues 145 Patents To Indiana Citizens in August 2018

By Overhauser Law Offices, LLC

The U.S. Patent Office issued the following 145 patent registrations to persons and businesses in Indiana in August 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	D0827210	Combination of a door and door frame of an animal enclosure
2	D0827105	Valve
3	D0827104	Valve
4	D0827103	Valve
5	D0827102	Valve

September 4, 2018

164 Trademark Registrations Issued to Indiana Companies in August 2018

By Overhauser Law Offices, LLC

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
5539152	COMPETITIVE STRUCTURED BLOCK PLAY	TSDR
5551465	RANGEXPERTS	TSDR
5550999	LIL BUCKS	TSDR
5550790	MOVING FORWARD	TSDR
5550600	MOVING FORWARD	TSDR
5550594	PRECISION PRODUCTS GROUP INC.	TSDR

August 31, 2018

Indiana Patent Litigation: Indiana Corporation Sued for Patent Infringement Involving Programmable Security Systems

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, InVue Security Products Inc. of Charlotte, North Carolina, filed suit in the Southern District of Indiana alleging that Defendant, Mobile Tech, Inc. d/b/a Mobile Technologies Inc. and MTI, formerly known as Merchandising Technologies, Inc. of Hillsboro, Oregon, but incorporated in Indiana, infringed its rights in United States Patent No. 10,062,266, (the “‘266 patent”) for a “Programmable Security System and Method for Protecting Merchandise”. Plaintiff is seeking a permanent injunction, damages, judgment awarding InVue a reasonable royalty, prejudgment interest, and other relief the Court may deem just and proper.

Chief executive officers for both parties met in person on April 11, 2018 to discuss the defendant’s Intellikey 3.0, its Gateway products, and other potentially infringing items “Accused Items”. The plaintiff provided defendant with a copy of at least Claim 1 of the pending ‘266 patent, informing them that the Intellikey 3.0 would infringe the claims of the ‘266 patent when issued. The application for the ‘266 patent published on August 16, 2018 and the ‘266 patent issued on August 28, 2018, just before the Complaint was filed.

The first cause of action in the Complaint is for direct infringement of the ‘266 patent as MTI manufactures, offers for sale, sells, imports, and/or uses the Accused Items. Second, contributory infringement of the ‘266 patent is alleged as the Accused Items are not staple articles of commerce, are not suitable for a substantial non-infringing use, and are especially made or adapted for use in an infringement of the ‘266 patent. Third, infringement by inducement because the defendant sells the Accused Items to customers with the intent that they will use and operate them in a manner that infringes the ‘266 patent. Finally, plaintiffs claim that defendants should be held liable for pre-issuance damages as they were aware and had actual notice of the patent application after it published.

August 24, 2018

Indiana Copyright Litigation: Attorney Bell Sues Another for Copyright Infringment

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, Joan Mattox, infringed his rights to the “Indianapolis Photo” registered on August 4, 2011 with the U.S. Copyright Office, Registration No. VA0001785115. Plaintiff is seeking actual and statutory damages, costs, reasonable attorney’s fees and other relief deemed just and proper.

Bell has filed many copyright infringement cases on his own behalf based on his copyrights. See:

In this case, Bell claims that Mattox created a website to promote her business in the Indianapolis area with the domain name of http://www.readymadestaffing.com/. The Defendant then used the Indianapolis Photo on the website to garner the attention of prospective customers. It is alleged that the Indianapolis Photo was displayed on the webpage on or about December 15, 2015 and was still being displayed as of the filing of the Complaint. Bell is suing for copyright infringement and vicarious liability for each third-party download of the Indianapolis Photo from the Mattox’s website. Bell claims that Mattox falsely claimed that Ready Made Resources owned all of the photos and images on their website and used the Indianapolis Photo commercially without paying for the use or obtaining authorization from the Plaintiff. Further, Bell alleges that the Defendant refuses to pay damages for the unauthorized use and has not agreed to be enjoined from further use of the Indianapolis Photo.

It is alleged that the Indianapolis Photo was displayed on the webpage on or about December 15, 2015 and was still being displayed as of the filing of the Complaint. Bell is suing for copyright infringement and vicarious liability for each third-party download of the Indianapolis Photo from the Mattox’s website. Bell claims that Mattox falsely claimed that Ready Made Resources owned all of the photos and images on their website and used the Indianapolis Photo commercially without paying for the use or obtaining authorization from the Plaintiff. Further, Bell alleges that the Defendant refuses to pay damages for the unauthorized use and has not agreed to be enjoined from further use of the Indianapolis Photo.

August 21, 2018

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

By Overhauser Law Offices, LLC

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.