Indiana Intellectual Property Law News

October 22, 2018

Southern District of Indiana Judge Denies Plaintiff’s Motion for Summary Judgment

Richard N. Bell of McCordsville, Indiana filed a copyright infringement suit in the Southern District of Indiana alleging that David N. Powell, the executive director of the Indiana Prosecuting Attorneys Council (“IPAC”) infringed the “Indianapolis Nighttime Photo” of Richard Bell by using the photograph in a Spring Conference Brochure for the Midwest Regional Network for Intervention with Sex Offenders (“MRNISO”). Last week the Southern District of Indiana District Judge Tanya Walton Pratt denied Bell’s Motion for Summary Judgment and granted Powell’s and MRNISO’s Cross-Motions for Summary Judgment in the case.
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October 17, 2018

Southern District of Indiana Appoints New Judge

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Former federal prosecutor and current partner at Faegre Baker Daniels LLC, J.P. Hanlon, has been confirmed by the U.S. Senate as a new federal judge in the Southern District of Indiana. Hanlon has experience in investigation and enforcement proceedings conducted by the U.S. Department of Justice and other government agencies, as well as representing clients in high-stakes civil litigation.

After graduating magna cum laude from Valparaiso University School of Law in 1996, Hanlon went on to clerk for the Honorable Robert L. Miller Jr. in the U.S. District Court for the Northern District of Indiana. Hanlon is a member of the Criminal Justice Act Panels for both the Seventh Circuit Court of Appeals and the U.S. District Court for the Southern District of Indiana. He also supports the local Indiana University Robert H. McKinney School of Law by participating on the Wrongful Conviction Clinic Advisory Committee. Hanlon will be a great asset to the Southern District as they have been trying to recover from a heavy workload after a longtime judge took senior status in 2014.

October 15, 2018

Indiana Patent Litigation: Eli Lilly and Company Seeking Declaratory Judgment in Patent Ownership Case

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Eli Lilly and Company of Indianapolis, Indiana, filed suit in the Southern District of Indiana for a declaratory judgment against Defendant, Adocia S.A. of Lyon, France, who is claiming inventorship and ownership rights in Lilly’s United States Patent No. 9,901,623 B2 (“the ‘623 Patent”) for “Rapid-Acting Insulin Compositions”, and United States Patent No. 9,993,555 B2 (“the ‘555 Patent”) for “Rapid-Acting Insulin Compositions”. Plaintiff is seeking declaratory judgment, attorneys’ fees and costs, and further relief the Court determines to be just and proper.

Lilly began its research that led to the ‘623 and ‘555 Patents at least as early as 2011. Right around that same time, Lilly and Adocia began negotiating an agreement to develop an ultra-rapid insulin “URI” formulation using Adocia’s BioChaperone® technology. Adocia and Lilly entered into a collaborative research and license agreement on December 13, 2011. The two companies signed a confidentiality agreement on November 21, 2012. By July 2013, the original agreement was terminated.

The Parties entered into a second confidentiality agreement on December 16, 2013 and a second collaborative research and license agreement on December 18, 2014 using different BioChaperone® molecules than the first agreement. The second research collaborative continued until January 2017. While Lilly was a part of the research collaborative, they were also running a separate internal program to develop a URI with specific concentrations of citrate for a more rapid time action profile and specific excipients to maintain the stability for the composition. Unlike this research, the collaborative research focused only on URI products containing BioChaperone® molecules. The separate internal research led to the ‘623 Patent issuing on February 27, 2018 and the ‘555 Patent issuing on June 12, 2018.

October 11, 2018

Indiana Trademark Litigation: Indiana Company, Veridus Group, Inc., Seeking Declaratory Judgment of Trademark Non-Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Veridus Group, Inc. of Indianapolis, Indiana, filed suit in the Southern District of Indiana for a declaratory judgment against Defendant, Strategic IP Information Pte Ltd. (“SIP-IP”) of Irvine, California, that Veridus Group has not infringed SIP-IP’s rights in United States Trademark Registration No. 5,294,263 for the mark VERI-SITE. Plaintiff is seeking declaration and judgment, damages, attorney’s fees, costs, and any other relief the Court may deem appropriate.

This case arose after the Defendant sent the Plaintiff a cease and desist letter alleging that Veridus Group was infringing on their federal trademark. SIP-IP provides internet and brand management services, which include certification systems to “help ad networks and publishers identify website hosting content without authorization.” Veridus Group runs a site certification program designed to help professional property developers mitigate risk and to help end-users in increasing the speed to market and improving the value and marketability of a site or building. They utilize the mark VERISITE for marketing and sales purposes related to their site certification services and related goods.

Veridus Group claims that the Defendant does not have an exclusive right over the word “VERISITE” in connection with Plaintiff’s business activities as they are significantly different from those of SIP-IP. Further, Plaintiff alleges that even if Defendant did have exclusive ownership in this manner, the services and goods are marketed in such different channels of trade and with both companies working with sophisticated purchasers, there is not a likelihood of confusion for the origin of the services and/or goods. As there is an actual case and controversy as to whether Plaintiff is infringing Defendant’s mark in violation of the Lanham Act and as to whether the Plaintiff engaged in unfair competition at the federal or state common law level, Plaintiff is seeking a declaration of the rights of the parties in connection with the mark VERISITE.

October 5, 2018

Patent Office Issues 174 Patents To Indiana Citizens in September 2018

By Overhauser Law Offices, LLC

The U.S. Patent Office issued the following 174 patent registrations to persons and businesses in Indiana in September 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	D0829374	Lighter
2	D0829233	Display screen with graphical user interface
3	10085326	Power over ethernet lighting system with battery charge control algorithm
4	10085135	Radio frequency patch antenna and system for permitting secure access to a restricted area
5	10085133	Networked pest control system

October 4, 2018

Indiana Trademark Litigation: Indiana Company, Tribal-Care Insurance LLC, Sued for Trademark Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Alliant Specialty Insurance Services, Inc., of San Diego, California, filed suit in the Northern District of Indiana alleging that Defendant, Tribal-Care Insurance LLC of St. John, Indiana, has and continues to infringe its rights in the TribalCare trademark. Plaintiff is seeking an injunction, damages, statutory damages, costs, expenses, and attorneys’ fees in addition to other relief as the Court may deem just and proper.

The Plaintiff alleges that the TribalCare mark was first used in interstate commerce on or about May 24, 2010 by HealthSmart Holdings, Inc. The mark was registered on November 29, 2011 as United States Trademark Registration No. 4,062,744. Just before the mark was officially registered, on or about October 7, 2011, HealthSmart and Alliant came to an agreement that would allow Alliant to use the TribalCare trademark.

According to Alliant, HealthSmart learned of the Defendant’s use of the mark “Tribal-Care” in late 2015 or early 2016. After HealthSmart discovered the allegedly infringing use, they sent a cease and desist letter to Tribal-Care on January 8, 2016. Defendant filed a petition to cancel HealthSmart’s registration in the United States Patent and Trademark Office before the Trademark Trial and Appeal Board on August 17, 2016. As a result, HealthSmart assigned the trademark rights in the TribalCare mark to Alliant so they could be substituted into the cancellation action for litigation.

October 3, 2018

166 Trademark Registrations Issued to Indiana Companies in September 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
5572261	COMMODITAG	TSDR
5570702	ASRX	TSDR
5570677	APEX	TSDR
5570622	CHICAGO BIFOLD	TSDR
5570497	BIG IDEAS, SMALL WORLD	TSDR
5570474	COMPDATA EDGE	TSDR
5570226	ABSOLUTE WATER TECHNOLOGIES	TSDR
5570225	ABSOLUTE WATER TECHNOLOGIES	TSDR
5570119	RUSH PUPPY	TSDR
5569660	DIGITAL CHARISMA	TSDR
5572237	ARGUES FOR SPORT	TSDR

September 25, 2018

Southern District of Indiana Judge Grants Motion for Summary Judgment in Design Basics LLC. vs. Kerstiens Homes & Designs Case

By Overhauser Law Offices, LLC

Design Basics, LLC, Plan Pros, Inc. and Prime Designs, all of Omaha, Nebraska, filed suit in the Southern District of Indiana alleging that Kerstiens Homes & Designs, Inc., T-Kerstiens Homes Corp., Kerstiens Realty, Inc., Kerstiens Management Corp., Kerstiens Leasing Corp., Kerstiens Holding Corp., and Kerstiens Development Inc. infringed multiple copyrights of the Plaintiffs.

Plan Pros is in the business of licensing home designs to builders through Plaintiff Design Basics and other such brokers. Design Basics also designs their own home designs and licenses these as construction drawings that can be modified to fit the customer’s needs. Design Basics has published and distributed almost 200 home catalogs and other publications with their copyrighted home designs. For the seven home designs at issue in this case, Design Basics earned $25,000.00 in licensing fees from 116 licenses since 2009.

The Defendants filed summary judgment motions asserting that they were not in the business of building homes or creating house plans for the management and holding companies and that the Plaintiffs’ evidence did not support the elements of a copyright claim for the design and building companies. Further, the home and building companies asserted that they independently created the designs and the Plaintiffs did not show that they own the registrations for the copyrights at issue.

September 21, 2018

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

By Overhauser Law Offices, LLC

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.