Indiana Intellectual Property Law News

November 30, 2020

Floyds Knob Based Company Sued for Alleged Patent Infringement

Indianapolis, Indiana – Somero Enterprises, Inc. (“Somero”), the Plaintiff, claims to be a pioneer in the development and manufacturing of laser-guided concrete screeding machines. According to the Complaint, Somero has a portfolio of 63 patents including the patent at issue, United States Patent No. 8,038,366 (the “‘366 Patent”). Somero claims Ligchine International Corporation (“Ligchine”), the Defendant, offers a product called the “SpiderScreed” that allegedly infringes the ‘366 Patent.

Per the Complaint, Somero sent a letter to Ligchine on July 30, 2020 accusing Ligchine of infringing the ‘366 Patent by manufacturing and selling the SpiderScreed product. Somero claims the SpiderScreed infringes at least claims 1-5 of the ‘366 Patent and Ligchine has not ceased the manufacture and sale of the SpiderScreed. Therefore, Somero is seeking damages and attorneys’ fees for patent infringement pursuant to 35 U.S.C. §§ 271 and 285.

November 25, 2020

Netflix’s Attempt to Remove Lawsuit Thwarted

By Overhauser Law Offices, LLC

Indianapolis, Indiana –Plaintiffs, City of Fishers, Indiana, City of Indianapolis, Indiana, City of Evansville, Indiana, and City of Valparaiso, Indiana, on behalf of themselves and all others similarly situated filed suit on September 4, 2020 in Marion Superior Court (Case No. 49D01-2008-PL-026436) alleging that Defendants, Netflix, Inc., Disney DTC LLC, Hulu, LLC, Directv LLC, Dish Network Corp., and Dish Network LLC, violated the Indiana Video Service Franchises Act Ind. Code. § 8-1-34-1 et seq. Plaintiffs are seeking an order declaring Defendants provide video service in Indiana and to require Defendants to perform statutory duties including compensating Plaintiffs and all other units of government for unpaid fees for past service.

Defendant, Netflix, filed a Notice of Removal on September 9, 2020 from Marion County Superior Court 1 to the United Stated District Court for the Southern District of Indiana. Netflix asserted jurisdiction in the Southern District due to diversity jurisdiction and jurisdiction under the Class Action Fairness Act of 2005 (“CAFA”). Netflix noted that since Plaintiffs filed their Complaint in this case, three more cases have been filed against Netflix and Hulu alleging similar violations of various state video franchise acts in Texas, Ohio, and Nevada.

Following the Notice of Removal, the Plaintiffs filed a Motion to Remand the case under the doctrine of comity. In the Southern District’s Order, the Court explained, “[t]he comity doctrine encourages federal courts to avoid ‘interfer[ing] . . . with the fiscal operations of the state governments . . . in all cases where the Federal rights of the persons could otherwise be preserved unimpaired.’ Levin v. Commerce Energy, Inc., 560 U.S. 413, 422 (2010).” Therefore, the case was remanded back to Marion Superior Court.

Practice Tip: Removal of a putative class action under the CAFA is proper if: 1) there is a class action; 2) there is minimal diversity between the parties, such that at least one class member is a citizen of a state different from the state of any defendant; and 3) the aggregate amount in controversy exceeds $5,000,000, exclusive of interest and costs. See 28 U.S.C. § 1332(d)(2).

November 24, 2020

Dancers Showclub Sued in US Southern District for Alleged Violations of Right of Publicity

By Overhauser Law Offices, LLC

Indianapolis, Indiana – According to the Complaint, Plaintiffs, Jennifer Archuletta, Gemma Lee Farrell, Jesse Golden, Hillary Hepner, Jessa Hinton, Joanna Krupa, Gia McCool, Alana Campos Souza, Irina Voronina, and Lucy Pinder, are all professional models. Apparently, M E R Corporation d/b/a Dancers Showclub (“Showclub”), the Defendant, is a strip club located in Indianapolis, Indiana.

The Plaintiffs claim Showclub misappropriated the Plaintiffs’ photos, images, and likenesses in advertising materials to promote Showclub on social media without their consent or a license. By using the Plaintiffs’ photos, Plaintiffs claim Showclub falsely indicated the parties are associated and that the Plaintiffs endorse Showclub. Therefore, Plaintiffs are seeking damages for false endorsement, unfair competition, and/or false advertising in violation of the Lanham Act, 15 U.S.C. § 1125(a)(1), violations of the Plaintiffs’ right of publicity pursuant to I.C. § 32-36-1, et seq., and unjust enrichment.

November 23, 2020

Joe Hand Files Another Copyright Infringement and Piracy Lawsuit

By Overhauser Law Offices, LLC

Indianapolis, New Albany Division, Indiana – Joe Hand Promotions, Inc. (“Joe Hand’), the Plaintiff, claims to specialize in licensing premier sporting events to commercial establishments including bars, restaurants, and other similar locations. Those premier sporting events apparently included the Floyd Mayweather, Jr. vs. Conor McGregor boxing match on August 26, 2017 (the “Program”) that was purportedly registered under U.S. Copyright No. PA 2-006-333. According to the Complaint, Defendants, Lena Marie Smith and Main Street Bar N Grill, LLC (“Defendants”), avoided paying the proper commercial licensing fees and publicly exhibited the Program at their establishment.

This case is extremely similar to the numerous lawsuits Joe Hand has filed previously. Like most of those cases, Joe Hand is seeking damages for satellite piracy (47 U.S.C. § 605), cable piracy (47 U.S.C. § 553), and copyright infringement (17 U.S.C. § 505).

November 20, 2020

Winegard Sued for Alleged Patent Infringement of RV Antenna

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – According to the Complaint, Magnadyne Corporation (“Magnadyne”), the Plaintiff, and Winegard Company (“Winegard”), the Defendant, are competitors in the recreational vehicle market. Magnadyne claims to have filed a patent application titled “Combination External Vehicle Antenna Housing and Installation Method” on April 2, 2018. Apparently that application published on October 4, 2018 as US2018/0287250A1 (the “‘250 Publication”). The day after the ‘250 Publication was published, Magnadyne claims it provided a copy to Winegard via one of Winegard’s subsidiaries, WiFi Ranger. Thereafter on April 14, 2020, Magnadyne’s patent was issued as United States Patent No. 10,622,709 (the “‘709 Patent”).

Magnadyne claims to have notified Winegard and WiFi Ranger of the ‘709 Patent the day it issued via written communications. Since then, Magnadyne claims Winegard has continued to sell an alleged infringing product, the Air 360+, among other products accused of infringement. Per the Complaint, the sale, manufacture, and use of the Air 360+ directly infringes at least claim 1 of the ‘709 Patent. Magnadyne claims to have suffered damages for direct infringement, contributory infringement, and induced infringement of the ‘709 Patent. Therefore, Magnadyne is seeking a reasonable royalty, compensatory damages, attorneys’ fees, and costs.

November 19, 2020

Gangnam Korean BBQ Sued for Alleged Piracy and Copyright Infringement

By Overhauser Law Offices, LLC

Evansville, Indiana – Joe Hand Promotions, Inc. (“Joe Hand”), a frequent Plaintiff in the federal courts of Indiana, apparently specializes in licensing premier sporting events to bars, restaurants, and similar venues. According to the Complaint, Joe Hand had an agreement with the owner of U.S. Copyright PA-002-0660333 to commercially distribute the Floyd Mayweather, Jr. vs. Conor McGregor boxing match (the “Program”) on August 26, 2017.

Per the Complaint, the Defendants, Joseph J. Kim, Sarah Ying AI Kim, and Genesis Business Systems, LLC d/b/a Gangnam Korean BBQ, exhibited the Program to the public without paying for a commercial license through Joe Hand. As such, Joe Hand is seeking damages for satellite and cable piracy pursuant to 47 U.S.C. §§ 605 and 553, respectively, and copyright infringement pursuant to 17 U.S.C. § 505.

November 18, 2020

Frost Buddy, LLC Sued for Alleged Trade Dress Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Apparently Brumate, LLC (“Brumate”), the Plaintiff, designs and sells insulated beverage containers, including an insulated tumbler/can holder, the HOPSULATOR®, and an insulated wine bottle, the WINESULATOR®. Brumate claims to have acquired trade dress rights in its HOPSULATOR® product design (“HOPSULATOR Trade Dress”). According to the Complaint, Frost Buddy, LLC (“Frost Buddy”), the Defendant, is selling a knockoff product that incorporates the HOPSULATOR Trade Dress. Brumate also claims Frost Buddy has engaged in deceptive advertising with regard to Brumate’s HOPSULATOR® and WINESULATOR® products.

Brumate is seeking damages for trade dress infringement, false advertising, and unfair competition pursuant to 15 U.S.C. § 1125(a). Further, Brumate claims Frost Buddy committed deception in violation of I.C. § 35-43-5-3 and unfair competition under Indiana common law.

November 17, 2020

Carved LLC of Elkhart Sued for Alleged Patent Infringement

By Overhauser Law Offices, LLC

South Bend, Indiana –Apparently, BelAir Electronics, Inc. (“BelAir”), the Plaintiff, is the assignee of two patents, U.S. Patent Nos. 7,941,195 (the “‘195 Patent”) and 10,097,676 (the “‘676 Patent), both entitled “Protective Mask of Mobile Phone.” According to the Complaint, Carved LLC (“Carved”), the Defendant, manufactures, sells, and distributes protective masks for mobile devices (the “Accused Products”). BelAir claims the Accused Products infringe at least claim 9 of the ‘195 Patent and at least claims 1, 5, 8, and 9 of the ‘676 Patent.Per the Complaint, BelAir sent notice of the alleged infringement to Carved on or about December 17, 2019. Because Carved has not ceased producing and selling the Accused Products, BelAir is seeking damages pursuant to 35 U.S.C. § 284. Continue reading

November 16, 2020

Patent Infringement Case Dismissed for Forum Non Conveniens

By Overhauser Law Offices, LLC

Hammond, Indiana – Tyler Research Corporation (“TRC”), the Plaintiff, filed suit against the Defendants, Envacon, Inc., Kieran Bozman, and JKKB Holding Corporation, alleging infringement of its rights in United States Patent No. 6,273,053 (the “‘053 Patent”). After amending the Complaint, the Defendants filed a Motion to Dismiss First Amended Complaint Pursuant to Forum Non-Conveniens.

TRC is apparently a Pennsylvania corporation having its principal place of business in Alberta, Canada. According to the Opinion of the Court, Envacon, Inc. and JKKB Holding Corporation are both Canadian entities and Kieran Bozman resides in Canada.

Forum non conveniens allows a district court to dismiss a case “in order to best service the convenience of the parties and the ends of justice.” Stroitelstvo Bulgaria Ltd. v. Bulgarian-American Enter. Fund, 589 F.3d 417, 421 (7th Cir. 2009) (citing Clerides v. Boeing Co., 534 F.3d 623, 627–28 (7th Cir. 2008)). The Court in this case found that while a “Canadian court is unlikely to adjudicate a claim for the infringement of a United States patent,” TRC could still bring a claim for infringement of its Canadian patent and a claim for breach of contract, “which alone would remedy the alleged wrong.” Opinion at p. 9. After finding an alternative forum is available for the case, the Court conducted an analysis and found the public interest and private interests of the parties would be best served by dismissing the case and allowing it to proceed in Canada. Therefore, the Court granted the Defendants’ Motion to Dismiss.

November 12, 2020

Wet Floor Safety Sign at Issue in Patent Infringement Lawsuit

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Eddie M. Green, Jr. Jeffersonville, Indiana filed suit in the Southern District of Indiana alleging that Defendants, Meijer, Inc. infringed its rights in United States Patent No. 9,940,796 (“the ‘796 Registration”) for “Wet Floor Safety Sign”. Plaintiff is seeking injunctive relief, judgment including statutory damages and attorneys’ fees.

Eddie M. Green, Jr. (“Green”), the Plaintiff, apparently owns United States Patent No. 9,940,796 (the “‘796 Patent”) for the “Yellow Fellow Safety Sign.” Believing the Defendant, Meijer, Inc., infringed the ‘796 Patent, Green filed suit, pro se, alleging patent infringement. Green claims that despite warning Meijer of the alleged infringement on two separate occasions, Meijer continues to use the allegedly infringing wet floor signs.

Green is seeking an injunction and damages for the allegedly unlicensed use of his invention. As in another lawsuit against different defendants, Green claims his ability to sell his product and costs for marketing and advertising his patented product will be greater due to Meijer’s “misuse of fake and unpatented products in the safety field.”