Evansville, Indiana – Indiana intellectual property attorneys for SOP Services, Inc. of Las Vegas, Nevada and Bear Archery, Inc. of Evansville, Indiana (collectively “Bear Archery”) initiated an infringement lawsuit in the Southern District of Indiana alleging that American Archery, LLC of Suwanee, Georgia infringed “Arrow Rest,” Patent No. RE38,096; “Arrow Rest System and Method,” Patent No. 6,978,775; WHISKER BISCUIT ARROW REST, Trademark Registration No. 2,501,255; and WHISKER BISCUIT, Trademark Registration No. 3,312,392, which have been issued by the U.S. Patent and Trademark Office.
Bear Archery is in the business of researching, developing, designing, manufacturing, and selling archery products. Its business includes traditional archery bows, compound bows, bow sights, arrow rests, arrows and arrow components, archery targets, and various other archery accessories. American Archery is in the business of selling hunting products and accessories, including archery products.
At issue in this Indiana intellectual property dispute are arrow rests for mounting to archery bows. The lawsuit asserts claims of patent infringement, trademark infringement, as well as false and deceptive labeling and unfair competition.
American Archery is accused of selling counterfeit arrow rests, both through its website and through online auction sites. Specifically, Bear Archery asserts that the “ready to shoot” packages offered by American Archery advertise that they include a genuine Bear Archery Whisker Biscuit® arrow rest as part of the preassembled bow. However, Plaintiffs state, the bow that a consumer receives instead includes a pre-installed counterfeit arrow rest.
There are two patents at issue in this litigation: “Arrow Rest,” Patent No. RE38,096 (the “‘096 patent”) and “Arrow Rest System and Method,” Patent No. 6,978,775 (the “‘775 patent”). The ‘096 patent and the ‘775 patent (collectively “the patents-in-suit”) are owned by SOP Services. Bear Archery has been granted an exclusive license to the patents-in-suit. Plaintiffs accuse American Archery of having willfully, intentionally and deliberately infringed the patents-in-suit by offering the allegedly counterfeit items.
In addition to patent infringement assertions, this Indiana litigation also includes allegations of trademark infringement. Bear Archery contends that it owns trademark rights for the Whisker Biscuit mark, indicating that it has used the mark with its arrow rest products since at least 1999. It claims that consumers have come to recognize the mark as identifying Bear Archery’s arrow rest products. It further asserts that it owns a trademark on “Whisker Biscuit Arrow Rest” for archery equipment, namely arrow-rest devices. Bear Archery claims that American Archery’s use of the marks is likely to cause confusion, mistake, or deception as to origin, sponsorship or approval and therefore constitute trademark infringement and counterfeiting in violation of Section 32 and 43(a) of the Lanham Act, 15 U.S.C. § 1114 et seq. and the common law.
Bear Archery includes a final claim of “false and deceptive labeling and unfair competition” under Lanham Act 15 U.S.C. §1125 and the common law.
Bear Archery, via its Indiana intellectual property lawyers, asks the court for the following relief:
A. A judgment of infringement of the ‘096 patent and the ‘775 patent;
B. A judgment that the use of the “WHISKER BISCUIT” mark in Defendant’s commercial advertising and sales in the Unites States creates a likelihood of confusion, mistake, or deception among relevant consumers and therefore infringes Plaintiff’s trademarks;
C. A judgment that Defendant has engaged in counterfeiting with respect to Plaintiffs’ trademarks;
D. An order permanently restraining Defendant or any of its agents from further acts of infringement of the patents-in-suit;
E. An order permanently restraining Defendant or any of its agents from engaging in misleading advertising of products or services bearing or resembling the “WHISKER BISCUIT” mark that have caused actual confusion, mistake or deception of the public;
F. An order that all infringing devices or materials in the possession of, or subject to control by, Defendant or its agents be delivered up and destroyed or altered to eliminate any possibility any further infringement;
G. An award of damages not less than a reasonably royalty, adequate to compensate Plaintiffs for Defendant’s acts of infringement under 35 U.S.C. §284;
H. An award to Plaintiffs of treble Defendant’s profits under 15 U.S.C. § 1117(a) and (b);
I. An award to Plaintiffs of statutory damages for counterfeiting up to $2,000,000, pursuant to 15 U.S.C. § 1117(c);
J. An order declaring that this is an exceptional case pursuant to 35 U.S.C. § 285 and 15 U.S.C. 1117 as a result of Defendant’s knowing and willful infringement of the patents-in-suit and the asserted trademarks, and awarding Plaintiffs their attorneys’ fees;
K. An award of Plaintiffs’ costs, and/or expenses; and
L. Aw award of Defendant’s wrongful profits associated with its infringement of Plaintiffs’ patent and/or trademark rights.
Practice Tip: Bear Archery requested that eBay remove various auctions posted by Bear Archery on the grounds that the items for sale were counterfeit. Bear Archery indicates that eBay removed the auctions and notified American Archery that the auctions had been removed because they had been flagged as offering counterfeit goods. Bear Archery requested this under eBay’s Verified Rights Owner (“VeRO”) Program. The VeRO Program provides a mechanism for an owner of intellectual property to request the removal of eBay auctions that offer items that infringe that owner’s intellectual property rights.
The suit was filed by Charles J. Meyer and William A. McKenna of Woodard, Emhardt, Moriarty, McNett & Henry LLP. The case was assigned to Chief Judge Richard L. Young and Magistrate Judge William G. Hussmann in the Southern District of Indiana and assigned Case No. 3:14-cv-00097-RLY-WGH.