Indianapolis, IN – Richard Bell of McCordsville, IN filed three separate copyright infringement suits in the Southern District of Indiana against GSE Audio Visual (“GSE”), Christy Joy Caley (“Caley”) and Maryco Cleaning Service, Inc. (“Maryco”), and National Swimming Pool Foundation (“National Swimming”), alleging that each infringed Copyright Number VA0001785115. The copyrighted work, “Indianapolis Nighttime Photo,” was registered by the U.S. Copyright Office on August 4, 2011. Bell is seeking permanent injunctions, both actual and statutory damages, costs, and attorneys’ fees against all Defendants.

Plaintiff is both a photographer and attorney who is well known for filing copyright infringement lawsuits on his own behalf. GSE utilized the Indianapolis Nighttime Photo on its website to promote and advertise its business within Indianapolis. Bell discovered this unauthorized use on April 5, 2018.

Bell alleges Maryco authorized Caley to create a website to promote its business. Then, Caley downloaded his Indianapolis Nighttime Photo and posted it on Maryco’s website without his permission. Bell found this unauthorized use through a google image search in December 2018, however, he believes the unauthorized use began in 2013.

Fort Wayne, IN – Jeff Bachner of Brooklyn, New York, by counsel, filed a lawsuit alleging USA Halloween Planet, Inc. of Indianapolis, Indiana infringed U.S. Copyright Registration No. VA 2-110-419 (the “Copyrighted Work”). The Copyrighted Work is entitled “01.01.13, New Years Eve, Bachner.jpg” and was registered USA-lOGO-300x215by the U.S. Copyright Office July 12, 2018. Plaintiff is seeking damages including punitive damages, costs, expenses, and attorneys’ fees.

Bachner licensed his Copyrighted Work to the New York Daily News on or about January 1, 2013 for their article titled Taylor Swift, Psy, Mayor Bloomberg help New Yorkers ring in 2013. Plaintiff was given proper credit for his Copyrighted Work appearing in the article. Defendant ran an article on their website titled Goodbye 2012 . . . Hello 2013, that utilized the Copyrighted Work without a license, permission, or consent to publish it from Bachner. Plaintiff is claiming copyright infringement and alteration or removal of identifying copyright management information. Continue reading

Indianapolis, IN – Attorneys for Delta Faucet Company (“Delta”) of Indianapolis, Indiana filed a lawsuit against ALDI, Inc. (“Aldi”) of Batavia, Illinois alleging that Aldi infringed U.S. Patent No. 7,360,723 (the “’723 Patent”). The ‘723 Patent, titled “Showerhead system with integrated handle,” was issued by the U.S. Patent and Trademark Office on April 22, 2008. Plaintiffs are seeking a permanent injunction, damages including treble damages, attorneys’ fees, and any other relief deemed proper by the Court.ALDI_2017-250x300

Delta alleges that Aldi’s “Easy Home 2 in 1 Showerhead Kit” infringes at least one claim of the ‘723 Patent. Plaintiff has an exclusive license to the ‘723 Patent from Sidus Technologies and therefore has the right to sue for the infringement of the patent. Delta is seeking damages including reasonably royalties pursuant to 35 U.S.C. § 154(d). Further, Delta is claiming Aldi’s willful patent infringement justifies treble damages under 35 U.S.C. § 284 and attorneys’ fees under 35 U.S.C. § 285.

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Washington D.C.- Attorneys for Oracle USA, Inc. and Oracle International Corporation (collectively “Oracle”) of Colorado and California, respectively, filed suit in the District Court of Nevada alleging that Rimini Street, Inc. and Seth Ravin, both of Nevada, infringed the copyrights for Oracle Software and Technology, which have been registered by the U.S. Copyright Office. A jury awarded damages to Oracle upon finding that Rimini had indeed infringed Oracle’s copyrights. The District Court awarded Oracle additional fees and costs, which included $12.8 million dollars for litigation expenses including costs for expert witnesses, e-discovery, and jury consulting. After the award of additional fees and costs was affirmed by the U.S. Court of Appeals for the Ninth Circuit, the U.S. Supreme Court held the additional costs were not appropriate under the Copyright Act.us-supreme-court-building-2-300x200

The Ninth Circuit recognized that in granting the additional damages, they were covering expenses not included in the six categories of costs that the federal statutes, 28 U.S.C. §§ 1821 and 1920 authorize. However, they affirmed the District Court’s award based on the Copyright Act giving district courts discretion to award “full costs” under 17 U.S.C. § 505. The Supreme Court held that while the “term ‘full’ is a term of quantity or amount; it does not expand the categories or kinds of expenses that may be awarded as ‘costs’ under the general costs statute.” Therefore, Oracle was not entitled to the additional $12.8 million dollar award for litigation expenses outside of the six statutory categories.

Practice Tip:

The U.S. Patent Office issued the following 129 patent registrations to persons and businesses in Indiana in December 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.

PAT. NO. Title
1 D841,343 Robe hook
2 10217530 Patient-specific cutting block and method of manufacturing same
3 10216767 Management method and system for implementation, execution, data collection, and data analysis of a structured collection procedure which runs on a collection device
4 10215195 Vibration isolation system for a fan motor
5 10215182 Plastic fan shroud and cone assembly and method

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Washington D.C.– The unanimous decision overturns certain circuits in the United States that allowed copyright lawsuits upon mere applications for registration. The United States Supreme Court has ruled to affirm the United States Court of Appeals for the Eleventh Circuit’s decision against the Petitioner, Fourth Estate Public Benefit Corp. (“Fourth Estate”) of Delaware. The Petitioner originally filed a copyright infringement lawsuit in the Southern District of Florida, alleging that Wall-Street.com, LLC (“Wall-Street”) of Florida, infringed over 200 articles pending copyright registration.

Fourth Estate filed suit after Wall-Street failed to remove Fourth Street’s licensed works from its news website after Wall-Street canceled the Parties’ licensing agreement. Petitioner had filed to register its articles with the Copyright Office, but the articles had not been registered at the time the action commenced. Pursuant to 17 U.S.C. § 411(a), the District Court dismissed the complaint and the Eleventh Circuit affirmed holding there is no right to civil action for infringement of a copyright in the United States until registration has occurred, and merely filing an application for registration does not meet the registration burden under the statute. While the Register of Copyrights did refuse registration of the articles at issue in this case after the Eleventh Circuit Decision, that was not a factor in this decision.

 

An author gains rights including the right to reproduce, distribute, and display their work immediately upon the creation of the work pursuant to 17 U.S.C. § 106. However, generally before filing an infringement claim in court, the claimant must comply with the registration requirements of § 411(a). The exceptions to that rule are for those works that are vulnerable to predistribution infringement, typically movies or musical compositions, which are not found here. In this case, the Court had to decide if registration has been made pursuant to § 411(a) when the application, materials, and fee were submitted, or when the registration was granted by the Copyright Office. The Supreme Court in affirming the Eleventh Circuit’s Decision held that “registration has been made” under § 411(a) when the registration is granted by the Register of Copyrights after examination of a properly filed application.

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South Bend, Indiana – Attorneys for Plaintiff, Ellison Educational Equipment of California, filed suit in the Northern District of Indiana alleging that Defendants, Heartfelt Creations, Inc. and DOES 1-10 of Goshen, Indiana, infringed its rights in the United States Patent No. 9,079,325 (the ‘325 Patent). Plaintiff is seeking a permanent injunction, punitive damages, compensatory damages, attorneys’ fees, and costs.download

Ellison was founded in 1977 by a husband and wife who designed the first hand-operated die-cutting machine. Plaintiff has continued to provide innovations in the educational and craft markets ever since and even launched a new craft brand, Sizzix® in 2001. On July 15, 2011, Ellison filed a provisional patent application for a “Chemical-Etched Die Having Improved Registration Means.” The ‘325 Patent was issued stemming from the provisional patent application on July 14, 2015.

Heartfelt is alleged to have created patterns that are turned into chemically-etched dies and are used in conjunction with the method taught by the ‘325 Patent. Further, the company gives demonstrations on how to use the product in violation of the ‘325 Patent and teaches the public how to infringe the ‘325 Patent on Heartfelt’s YouTube channel. Ellison sent a cease and desist letter to Heartfelt based on Ellison’s beliefs Heartfelt was infringing the ‘325 Patent on December 21, 2018.

Plaintiff is claiming direct patent infringement pursuant to 35 U.S.C. § 271(a) with enhanced damages under 35 U.S.C. § 284. Second, it is claiming inducement of infringement pursuant to 35 U.S.C. § 271(b). Finally, Ellison is claiming contributory infringement pursuant to 35 U.S.C. § 271(c).

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Indianapolis, Indiana – Plaintiff and Attorney, Richard N. Bell of McCordsville, Indiana, filed suit in the Southern District of Indiana alleging that Defendant, Classic Touch Limousine Service, Inc. (“Classic”), infringed his rights to the “Indianapolis Photo” registered on August 4, 2011 with the U.S. Copyright Office, Registration No. VA0001785115. Plaintiff is seeking a declaratory judgment, permanent injunction, actual and statutory damages, reasonable attorney’s fees, costs, and all other proper relief.

Since March 2000, when Bell took the Indianapolis Photo, he has published and licensed the photograph for publication. Bell first published the Indianapolis Photo on a website on August 29, 2000 and has utilized the photograph to advertise his photography business. Plaintiff has notoriously filed many Complaints regarding copyright infringement for the Indianapolis Photo ever since.ClassicLogo-300x85

Plaintiff asserts Defendant created a website to advertise their business in Indianapolis and published the Indianapolis Photo on that website. Bell discovered the published photograph on April 6, 2018, which did not disclose the source of the photograph. According to the Complaint, Classic has refused to pay for its unauthorized use of the photograph and has not agreed to be enjoined from using the photograph.

As a result of Classic’s use of the Indianapolis Photo, Bell claims Classic is liable for copyright infringement. Further, Bell asserts Classic is vicariously liable for each copy of the photograph downloaded by a third-party user and any profit from those third-party downloads. Plaintiff also claims that Classic has benefited from its infringing use of the Indianapolis Photo and all profits and benefits belong to Bell pursuant to 17 U.S.C. §§ 504 and 505 and 15 U.S.C. § 1125(a).

The Bell Complaint alleges: “Defendant CLASSIC TOUCH LIMOUSINE SERVICE INC. (“CLASSIC”) has conducted and does conduct business in this district.” However, the Indiana Secretary of State’s office shows that the corporation CLASSIC TOUCH LIMOUSINE SERVICE INC. was “administratively dissolved” in 2018. This is at least the second time that Mr. Bell has sued a limousine company that as turned out not to exist. In 2016, he sued “A1 Luxury Limousine of South Florida, Inc” and ultimately obtained a default judgment for $150,000. However, that company had also been dissolved, making the prospects for collecting on that judgment remote. These Complaints serve as a reminder that, before filing suit, a Plaintiff should check to make sure the proposed defendant really exists.

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Terre Haute, Indiana – Attorneys for Plaintiffs, Baskin-Robbins Franchising LLC, and BR IP Holder LLC (collectively “Baskin-Robbins”), both Delaware limited liability companies, filed suit in the Southern District of Indiana alleging that Defendants, Big Scoops Inc. and David M. Glasgow, Jr., both of Terre Haute, Indiana breached their Franchise Agreement with Baskin-Robbins by failing to pay required fees. By continuing to operate, Defendants are infringing Baskin-Robbins’ trade dress and numerous registered trademarks.

Baskin-Robbins Franchising is in the business of franchising independent businesses and people to operate Baskin-Robbins shops in the United States. The “Baskin-Robbins” trade name, trademark, and service mark are owned by BR IP Holder along with other related marks. Since October 14, 2015, Big Scoops haslogo2 been the owner and operator of a Baskin-Robbins shop located in Terre Haute, Indiana pursuant to a Franchise Agreement with Baskin-Robbins. David M. Glasgow, Jr. personally guaranteed the obligations of Big Scoops under the Franchise Agreement.

Pursuant to its Franchise Agreement, Big Scoops was granted a license to use the trademarks, trade names, and trade dress of Baskin-Robbins, but only in the manner specified in the Franchise Agreement. The fees due to Baskin-Robbins from Big Scoops under the Franchise Agreement included a franchise fee equal to 5.9% of gross sales of the business, an advertising fee equal to 5.0% of gross sales of the business, late fees, interest, and costs on unpaid monies due under the Franchise Agreement, and all sums owing and any damages, interest, costs and expenses, including reasonable attorneys’ fees, incurred as a result of Big Scoops’ defaults. Under the Franchise Agreement, Big Scoops agreed that nonpayment of any of the required fees would be a default, that failure to pay within seven days after receiving written notice would be a continued default, and that receiving three notices of default within a twelve-month period would result in Baskin Robbins having the right to terminate the Franchise Agreement.

Plaintiffs sent Big Scoop three separate notices that it was in default of the Franchise Agreement for nonpayment on June 19, 2018, October 9, 2018, and December 7, 2018. As a result of these defaults and failure to cure after the December 7, 2018 notice, Baskin-Robbins sent Big Scoop a Notice of Termination with respect to the franchised business on February 12, 2019. Since receiving the Notice of Termination, Defendants have continued to operate the Baskin-Robbins shop and have used the Baskin-Robbins marks without authorization. Baskin-Robbins is claiming breach of contract, trademark infringement pursuant to 15 U.S.C. § 1114, unfair competition pursuant to 15 U.S.C. § 1125(a), and trade dress infringement pursuant to 15 U.S.C. § 1125.

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Indianapolis, Indiana – Attorneys for Plaintiff, Tyler Research Corporation (“TRC”), a corporation organized under the laws of Pennsylvania with its principal place of business in Alberta, Canada, filed suit in the Northern District of Indiana alleging that Defendants, Envacon, Inc., a Canadian corporation with a facility in Lafayette, Indiana, Keirnan Bozman, an individual residing in Alberta, Canada, and JKKB Holdings Corporation of Alberta, Canada, infringed its rights in United States Patent No. 6,273,053 (the “‘053 Patent”). Plaintiff is seeking a permanent injunction, damages, costs, expenses, both prejudgment and post-judgment interest, and any other relief the Court may deem just and proper.download-300x46

TRC, Bozman, and non-party, Joseph Krepela, entered into an exclusive licensing agreement granting TRC the exclusive right to manufacture Bozman and Krepela’s innovative engine shut off valves (the “Shut Off Valves”) on November 11, 1999. For consideration under the licensing agreement, TRC assisted with the design and completed development of the Shut Off Valves and provided employment to Bozman and Krepela. The licensing agreement did not limit TRC’s rights geographically and TRC’s exclusive right was to be in place so long as any patent rights of Bozman and Krepela existed in reference to the Shut Off Valves.

Bozman and Krepela were to put forth their best efforts in obtaining patent protection in Canada and the United States for the Shut Off Valves. Just short of four months after the exclusive licensing agreement with TRC was signed, Bozman and Krepela assigned their rights to the Shut Off Valves and the exclusive licensing agreement to JKKB. The very next day, JKKB filed for patent protection in the United States and Canada for the Shut Off Valves. The ‘053 Patent issued on August 14, 2001, with TRC holding the exclusive license to manufacture the Shut Off Valves.

 

Plaintiff exclusively manufactured the Shut Off Valves from 2001 until 2004, when it decided to outsource some of the manufacturing steps to Envacon, pursuant to the exclusive licensing agreement. Envacon, even before they began manufacturing some parts of the Shut Off Valves, had marketed and sold the completed Shut Off Valves for TRC and paid TRC’s parent corporation for TRC’s manufacturing services. TRC and Envacon operated out of the same premises from November 23, 1999 until April 16, 2011 and as such, TRC was able to maintain oversight, direction, and control over Envacon’s actions and involvement in manufacturing the Shut Off Valves.

Without giving prior notice, Envacon abandoned the space it shared with TRC on April 16, 2011. As TRC could no longer provide the necessary control and oversight over the manufacturing after Envacon left, Envacon was no longer authorized to manufacture the Shut Off Valves. TRC claims that Envacon, Bozman, and JKKB have all participated in the manufacturing of Shut Off Valves that infringe at least Claims 4, 14, and 15 of the ‘053 Patent or have conspired to deprive TRC of its rights under the exclusive licensing agreement. Plaintiff is claiming patent infringement against Envacon and Bozman, civil conspiracy against all Defendants, tortious interference against Envacon and Bozman, and civil conspiracy for tortious interference with a contractual relationship against Bozman and Envacon.

TRC of its rights under the exclusive licensing agreement. Plaintiff is claiming patent infringement against Envacon and Bozman, civil conspiracy against all Defendants, tortious interference against Envacon and Bozman, and civil conspiracy for tortious interference with a contractual relationship against Bozman and Envacon.

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