Articles Posted in Breach of Contract

Hammond, IndianaTyler 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.

NewPhoto

Continue reading

Evansville, Indiana – According to the Complaint, DMI Sports, Inc. (“DMI”) entered into an Asset Purchase and License Agreement (the “Purchase Agreement”) with Arachnid, Inc. (“Arachnid”) to purchase Arachnid’s “Consumer Products Line” of dart related products in 1999. Along with the Purchase Agreement, DMI allegedly obtained a Trademark License to make and sell consumer goods under the ARACHNID trademarks (the “Licensed Marks”). Under the Purchase Agreement, Arachnid allegedly retained the ARACHNID name and trademarks to sell dart products commercially. Indian Industries, Inc. d/b/a Escalade Sports (“Escalade”), the Plaintiff, claims to have acquired DMI in 2013 along with the Trademark License. Escalade claims Arachnid 360, the Defendant, is the successor in interest to Arachnid.

Escalade claims that Arachnid 360 began promoting a consumer dart game under the Licensed Marks around August 2015. While Arachnid 360 apparently claimed to have no knowledge of the Purchase Agreement, once it reviewed the Purchase Agreement, Arachnid 360 claimed Escalade was in violation of the Quality Control section for failure to provide samples of new products. Escalade claims after it provided samples to Arachnid 360, the company did not pursue their claims Escalade breached the Purchase Agreement. About four years later in January 2020, Arachnid 360 allegedly sent a letter to Escalade claiming Escalade had materially breached the Purchase Agreement. After responding that it had not breached the Purchase Agreement, Escalade claims Arachnid 360 sent it a letter purporting to terminate the Trademark License.

Continue reading

Indianapolis, IndianaJeremy Meier d/b/a Meier Photography (“Meier”), the Plaintiff, claims to be a professional photographer and owner of U.S. Copyright Registration No. VAu 1-381-446 which includes 380 photographs taken in the Spring of 2019 (the “Registered Photos”). According to the Complaint, Kelley Global Brands, LLC d/b/a KLH Audio (“KLH”), the Defendant, manufactures and sells audio equipment. Meier claims KLH used and published some of the Registered Photos without paying for the use and without the authorized consent of Meier resulting in copyright infringement.

However, the Complaint further states, that Meier and KLH “entered into an agreement pursuant to which Plaintiff agreed to take certain photos in exchange for Defendant paying for the rights to use said photos (the ‘Agreement’).” This may create an issue over whether the copyright infringement can be maintained. If KLH obtained “rights to use the Photos,” it may have a valid defense of “license.”

A similar issue was raised in the famous case known as the “exploding yogurt factory case.”

Continue reading

Syndicate Sales Inc., an Indiana corporation, along with six other Defendants filed notice to remove a case initially filed in the Superior Court of California, County of Los Angeles by Plaintiff, Natural Pack, Inc. (“Natural Pack”). Defendants sought to remove the case to the United States District Court for the Central District of California pursuant to 28 U.S.C. §§ 1331, 1337, and 1441 for federal question and diversity jurisdiction.

The removed case is a civil action entitled Natural Pack, Inc. v. Syndicate Sales, Inc. et al. Case No 19TSCV32476 (the “State Action”).  Natural Pack filed the State Action on September 12, 2019, asserting claims for violation of Uniform Trade Secrets Act, fraud, negligent misrepresentation, breach of contract, intentional interference with prospective economic relations, negligence, violation of the Lanham Act, and California Statutory and common law infringement. Following removal to the Central District of California, the Defendants filed a Motion to Dismiss under F.R.C.P. 12(b)(2) or in the alternative to Change Venue pursuant to 28 U.S.C. § 1401. The case was transferred to the Southern District of Indiana on January 21, 2020.

The Original Notice of Removal was filed October 15, 2019 in the Central District of California; and the case was transferred to the Southern District of  Indiana on January 21, 2020 given Case No. 1:20-cv-00219-JRS-DLP and assigned to District Judge James R. Sweeney and Magistrate Judge Doris L. Pryor.

Indianapolis, Indiana – Sheryl Lutz-Brown (“Sheryl”), the principal for Plaintiff, Corlinea, is a graphic designer and creator of copyrighted jewelry designs. In 2016, Sheryl claims to have developed a unique work entitled “HEARTY LOVE Design” that incorporated the word “love” into a heart shape design with one continuous line. Shortly after the “HEARTY LOVE Design”, it appears Sheryl created the “Heartlines Love Pendant” which was a heart-shaped pendant with the word “love” incorporated into the design with a continuous line. Sheryl registered both of these designs and they were assigned U.S. Copyright Registration Nos. VAu 1-301-361 and VAu 2-093-049 (the “Registered Copyrights”), respectively. Corlinea claims to own both of the Registered Copyrights by assignment.

Pendant-picture-300x161Corlinea and Defendant, Shah Diamonds, Inc. d/b/a Shah Luxury (“Shah”), are no strangers in litigation as Corlinea previously sued Shah in a similar lawsuit in 2018. The parties in that case entered into a confidential Settlement Agreement and Release and the case was voluntarily dismissed. Less than one year after Shah signed the previous Settlement Agreement and Release, Corlinea claims it discovered Shah was once again offering infringing jewelry for sale on its website.

Corlinea claims Defendants, Spath Jewelers, Inc. and Showcase Jewelers, LTD are also offering infringing jewelry for sale on their respective websites. Due to the allegedly intentional copying of the Registered Copyrights, Corlinea is seeking damages for Federal Copyright Infringement pursuant to 17 U.S.C. § 501 and breach of the Settlement Agreement and Release from the 2018 lawsuit.

Continue reading

The Indiana Supreme Court affirmed the trial court on both issues on appeal in the case of American Consulting, Inc. d/b/a American Structurepoint, Inc. (“American”) versus Hannum Wagle & Cline Engineering, Inc., d/b/a HWC Engineering, Inc. (“HWC”), Marlin A. Knowles, Jr., Jonathan A. Day, David Lancet, and Tom Mobley, originally filed in the Marion County Superior Court.

American-HWC-Engineering-logos-1-300x100Knowles, Day, Lancet, and Mobley were all previous employees of American. Mobley was granted summary judgment in his favor in the trial court so claims against him were not discussed on appeal. Each of the employees signed contracts precluding them from hiring or employing other American employees. These contracts each had clauses for liquidated damages upon breach set at 50% of the employee’s pay during the twelve months prior to the breach for Knowles and 100% of the employee’s pay during the twelve months prior to the breach for Day and Lancet.

Continue reading

LillyBlogPhotoIndianapolis, Indiana – Attorneys for Plaintiff, Eli Lilly and Company (“Lilly”) of Indianapolis, Indiana, filed suit in the Southern District of Indiana seeking a declaratory judgment that Lilly did not misappropriate any trade secrets of Defendant, SensorRx, Inc. (“SensorRx”) of Charlotte, North Carolina, or breach a contract with SensorRx. Lilly is seeking declaratory judgment, costs, attorneys’ fees, litigation expenses, and any other relief the court deems proper.

According to the complaint, Lilly has developed an app to help manage migraines called Vega™ Migraine. Lilly claims it created the app over the course of two years, it released the app on the Apple App Store on November 5, 2019, and the app is currently available for a free download, on a limited basis. Previously, Lilly has allegedly developed other mobile apps including “Go Dose,” a diabetes management and insulin dosing app, which helped Lilly gain experience to create and develop Vega™ Migraine. Lilly claims there are over fifty migraine management and other migraine related apps available to the public and many other health apps directed to various health conditions.

Lilly alleges it began having non-confidential discussions regarding SensorRx’s app, MigrnX™, in mid to late 2018 during which SensorRx discussed the capabilities of the app and demonstrated the app’s usage to Lilly. During the parties’ second in-person meeting in January 2019, they allegedly entered into a Mutual Confidentiality Agreement (“MCA”). Per the complaint, the MCA noted any information already known, becomes known to the public, has been lawfully received without restriction, or has been independently developed without use of confidential information, is not confidential information. Lilly claims due diligence was performed by both parties subsequent the signing of the MCA. After being concerned throughout the process and disappointed after the due diligence was conducted in the level of quality and capability of MigrnX™, Lilly alleges it contacted a representative of SensorRx on or about May 28, 2019 to terminate the due diligence. Continue reading

Evansville, Indiana – Attorneys for Plaintiff, Baskin-Robbins Franchising LLC and BR IP Holder LLC (collectively “Baskin-Robbins”), both of Canton, Ice-cream-300x201Massachusetts, filed suit in the Southern District of Indiana against Defendants, Radhakrishna LLC (“Radha”) of Indianapolis, Indiana, Naik’s, LLC (“Naik’s”) of Louisville, Kentucky, and Mukesh Naik, a citizen of Indiana (collectively “Defendants”), alleging breach of contract, trademark infringement, trade dress infringement, and unfair competition. Baskin-Robbins is seeking injunctive relief, judgment, including statutory damages, and attorneys’ fees.

According to the Complaint, Baskin-Robbins, along with its franchisees, currently operate more than 7,800 shops worldwide and have been in business for over seventy years. BR IP Holder LLC claims to own numerous registrations for marks relating to “Baskin-Robbins” and derivations thereof, most of which are incontestable under 15 U.S.C. § 1065. Baskin-Robbins further claims that the public knows and recognizes their marks due to the extensive sales and marketing Baskin-Robbins has done while in business.

It is alleged that Mukesh Naik, individually, entered a franchise agreement for PC 361694 on or about September 14, 1998; Radha entered into a franchise agreement for PC 351607 on or about August 10, 2013; and Naik’s entered into two franchise agreements for PC 353400 and PC 360506 in 2014 (collectively the “Franchise Agreements”). Each of the alleged Franchise Agreements were entered into between the Defendants and Baskin-Robbins Franchising LLC to operate Baskin-Robbins shops and each were allegedly personally guaranteed by Mukesh Naik. Baskin-Robbins claims that the Defendants defaulted under the Franchise Agreements and after three separate failures to cure their defaulting actions, were each sent a Notice of Termination. According to the Complaint, Defendants have continued using the Baskin-Robbins marks after the Notice of Termination was received by each Defendant, in breach of the Franchise Agreements.

Continue reading

Indianapolis, Indiana – Attorneys for Plaintiffs, Dow AgroSciences LLC (“Dow”) of Indianapolis, Indiana and Phytogen-BlogPhotoPhytogen Seed Company, LLC (“Phytogen”), a Delaware limited liability company, filed suit in the Southern District of Indiana alleging that Defendants, Robert Lemon and Sotero Ramirez, both residents of Texas, infringed their rights under the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1831, et seq. Plaintiffs are seeking permanent injunctions, judgment, compensatory damages, attorney’s fees, costs, and other relief the Court deems proper.

Dow claims to be an industry-leading agricultural chemical and seed company working on innovative ways to increase farm yield and create productive seeds while emphasizing sustainability. Phytogen claims to sell cottonseed under the trade name PhytoGen®, primarily in the southern United States. According to the Complaint, Dow and Phytogen have a mutual controlling member, Mycogen LLC, that allows Dow to provide services to Phytogen via a Service Agreement. Those services allegedly include allowing Dow’s employees to sell PhytoGen® cottonseed.

According to the Complaint, Lemon and Ramirez were both employed by Dow until September 5, 2019. At some point during or before Lemon and Ramirez terminated their employment with Dow, they allegedly both signed Loyalty and Confidentiality Agreements with Plaintiffs (“Agreements”) which included non-compete and non-disclosure agreements. Ramirez allegedly worked for Dow as a Territory Manager and Lemon was a PhytoGen® Cotton Development Specialist, supporting Ramirez and three other Territory Managers.

Prior to giving their two weeks’ notice and resignation from Dow to work for a direct competitor, Americot, Plaintiffs allege Lemon and Ramirez knew of and planned their departure for weeks. Lemon and Ramirez also allegedly lied about the positions they were taking with Americot and told Dow Representatives that they would not be working in similar positions for their new company. Following the resignations, Dow claims it took possession of the Defendants’ company property including their laptops and cell phones.

After an investigation took place, Dow claims it found evidence that the Defendants had attended important, proprietary, strategy meetings after they had received their job offers. Dow further claims the Defendants had deleted and/or transferred information, including proprietary and confidential information, from their company laptops and phones to other devices, including USBs, which were not turned in to Dow. Finally, Dow claims it has text message evidence that shows Lemon planning to utilize training materials developed by Dow in his employment at Americot and shows the Defendants planning to take and utilize contact information for their current clients.

As such, Dow and Phytogen are seeking judgment and damages for the misappropriation of trade secrets against both Defendants pursuant to the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1831, et seq., the Texas Uniform Trade Secrets Act, Tex. Civ. Code § 134A.001 et seq., and the Indiana Code § 24-2-3-1, et seq. Dow and Phytogen are also seeking damages from Lemon and Ramirez for breaching their Agreements.

Continue reading

Indianapolis, Indiana – Attorneys for Plaintiff, F.F.T., LLC (“F.F.T.”) having a principal place of business inFFT-BlogPhoto-300x65 Seattle, Washington, filed suit in the Southern District of Indiana alleging that Defendants, Thomas Sexton, Ph.D. (“Sexton”), Functional Family Therapy Associates, Inc. (“Functional Family Therapy”), Astrid Van Dam (“Van Dam”), and FFT Partners, LLC (“FFT Partners” and collectively “Defendants”), infringed its rights in United States Trademark Registration Nos. 4,389,569 for the mark FFT-CW®, 4,435,321 for the mark FFP®, and 5,267,897 for the mark FUNCTIONAL FAMILY THERAPY CHILD WELFARE®. F.F.T. is seeking injunctive relief, judgment including statutory damages, and attorneys’ fees.

F.F.T. claims it “is an organization dedicated to training psychotherapists in the ‘Functional Family Therapy’ protocol that its founder, Dr. James F. Alexander (“Dr. Alexander”), developed through decades of research and practical application.” According to the complaint, F.F.T. conducts business in thirty-three states and ten foreign countries. Sexton and Van Dam are individuals, alleged to be residing in Bloomington, Indiana. Functional Family and FFT Partners are a corporation and limited liability company, respectively, each alleged to have a principal place of business in Bloomington, Indiana.

According to the Amended Complaint, Dr. Alexander began studying and developing his family based method of therapy for delinquent adolescents in the 1960s and began referring to his therapy model as “Functional Family Therapy” in 1982 with the publication of his first book. F.F.T. claims this protocol has become very successful and is now referred to simply as “FFT.” Dr. Alexander along with non-party, Richard Harrison (“Harrison”), and Sexton allegedly formed FFT, Inc. in 1998 to train therapists in the Functional Family Therapy protocol. Per the complaint, Harrison left the company four years later and Douglass Kopp (“Kopp”) entered the company as CEO and Managing Member. F.F.T. claims it was formed to pursue the same efforts as FFT, Inc., which was subsequently administratively dissolved.

Continue reading

Contact Information