Articles Posted in Breach of Contract

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.

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The United States Court of Appeals for the Seventh Circuit issued an opinion reversing the denial of attorney’s fees, remanding for an entry BlogPhoto-300x96of a reasonable fee reward under 15 U.S.C. § 1117(a), and affirming all other aspects of the judgment of the district court in the case of 4SEMO.com Incorporated (“4SEMO”) versus Southern Illinois Storm Shelters, Inc. (“SISS”), et al. (collectively “Defendants”). While the Defendants originally sued 4SEMO in this case, the case was reconfigured as above for the July 2017 bench trial and decision, which was on appeal.

According to the opinion, 4SEMO began selling storm shelters manufactured by SISS in 2005. 4SEMO is a Missouri-based home-remodeling firm while Robert Ingoldsby and his brother Scott (the “Ingoldsbys”) run the Illinois based company, SISS. 4SEMO began marketing the storm shelters under a wordmark “Life Saver Storm Shelters” and a matching logo (the “Marks”) that it affixed to the shelters it sold in Missouri and Arkansas pursuant to an exclusive dealership agreement with SISS. The Ingoldsbys were granted a limited license to use the 4SEMO Marks for shelters marketed in southern Illinois. However, the Ingoldsbys violated the limited license by using the 4SEMO Marks on shelters sold throughout the country.

SISS sued 4SEMO for trademark infringement over the “Life Saver” wordmark, claiming they had used it prior to 4SEMO and that they had ownership of the wordmark. 4SEMO counterclaimed for trademark infringement and false endorsement, along with various state-law claims. After SISS’s claim did not survive summary judgement, 4SEMO’s counterclaims were tried to the bench and the district court found in favor of 4SEMO on all counts and awarded $17,371,003 in damages for profit disgorgement and $26,940 for breach of contract. However, 4SEMO’s motion for vexatious-litigation sanctions and attorney’s fees under 28 U.S.C. § 1927 and the Lanham Act, respectively, was denied.

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Fort Wayne, Indiana – Attorneys for Plaintiff, North American Van Lines, Inc. (“NAVL”) of Fort Wayne, Indiana, filed suit in the Northern District of Indiana alleging that Defendant, Kettering Moving and Storage, Inc. (“Kettering”) of Dayton, Ohio, infringed its United States Trademark Registrations.

 

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NAVL is seeking preliminary and permanent injunctions, profits, actual damages, costs and attorney’s fees, investigatory fees, and further relief the court deems appropriate.

NAVL claims it has been providing transportation services since 1933 and has been using the marks NORTH AMERICAN and NORTH AMERICAN VAN LINES in connection with those services for many years. According to the complaint, there are seven registered marks at issue in this case. NAVL claims it has licensed companies to act as NAVL Agents including the right to use NAVL’s registered marks, but it has been careful in limiting such licensing activities. NAVL asserts that through its use of its registered marks and the control it maintained in their use through licensing agreements, the registered marks have acquired a secondary meaning.

Per the complaint, Kettering provides moving and storage services throughout the world. NAVL claims it had an agency contract with Kettering prior to July 24, 2018 in which Kettering was allowed to use NAVL’s registered marks. However, NAVL asserts that it terminated that relationship through a letter sent to Kettering on July 24, 2018. After being informed Kettering was still utilizing NAVL’s registered marks, NAVL claims it informed Kettering to cease and desist on February 28, 2019. NAVL claims Kettering disregarded this cease and desist and continues to display NAVL’s registered marks on its vehicles and signs.

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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.

logo2Baskin-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 has 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, National Federation of Professional Trainers, Inc. (“NFPT”) of Lafayette, Indiana, filedBlogPhoto-300x105 suit in the Northern District of Indiana alleging that Defendant, Carrington College, Inc. (“Carrington”) of Sacramento, California, infringed its rights in United States Copyright Registration No. TX 8-515-798 (“NFPT 0241 Exam”). Plaintiff further alleges misappropriation of trade secrets, breach of contract, and fraud. Plaintiff is seeking damages, profits received from unauthorized copying and distribution of the copyrighted work, attorney’s fees, costs, and injunctive relief.

NFPT creates and administers examinations for the certification of personal trainers. Their certification programs have been accredited by the National Commission for Certifying Agencies since 2005. Carrington has utilized NFPT’s examinations and educational materials as a part of its Physical Therapy Technology Program. At the end of the course, students were able to sit for the NFPT certification exam for the opportunity to become a certified personal trainer upon obtaining a “passing” score.

Carrington administered an NFPT examination December 10, 2015 via their proctor, Mr. Phillip Schauer (“Schauer”). As proctor, Schauer had to sign a confidential disclosure agreement, which included maintaining the confidentiality of the exams and not duplicating any of the testing materials. The December 10, 2015 exam produced extremely abnormal results for the students’ test scores. Of the twenty-six candidates, fifteen had identical or similar response strings while the remaining candidates response strings differed by a maximum of four responses out of 120. All of the candidates obtained a “passing” score. Due to the abnormalities in the results, NFPT voided the results and required all candidates to retake the examination with new questions on August 26, 2016. Only six candidates chose to retake the exam and of those, only two obtained a passing score.

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Indianapolis, Indiana – Attorneys for Plaintiff, Re-Bath, LLC, of Phoenix, Arizona originally filed suit in the Marion Superior Court alleging that Defendants, Alternative Construction Concepts, LTD. d/b/a Re-Bath Designs of Indianapolis, of Indianapolis, Indiana, Steven O’Reilley of Indianapolis, Indiana, and DeboBlogPhoto-300x249rah O’Reilley of Indianapolis, Indiana of infringing trademark rights. Plaintiff is seeking a temporary restraining order, preliminary and permanent injunction and all other just and proper relief.

Defendant is a franchisee of Plaintiff’s Phoenix-based business. As part of the franchise agreement, Plaintiff allowed Defendant to use its trademarks, goodwill, concepts, operating systems, confidential information, method of operation and technical expertise and know-how to operate a bathroom remodeling business.

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Indianapolis, Indiana – Newton Enterprises Ltd. of Kowloon, Hong Kong filed a lawsuit in the Southern District of Indiana against Defendant Singleton Trading Inc. d/b/a Elama d/b/a Blue Spotlight of Brooklyn, New York asserting patent infringement and breach of contract.

These claims follow earlier litigation against Singleton initiated by Newton in June 2016.  That lawsuit, also filed in Indiana, alleged that Singleton Trading had infringed and/or induced ZoomBike-300x290others to infringe U.S. Patent No. 7,568,720 (the “‘720 patent”) for a “Wheeled Vehicle” with its “Zoom Bike” product.

Newton states that the 2016 action was dismissed without prejudice pursuant to a settlement agreement under which Singleton agreed to compensate Newton for its claims of past infringement and “permanently cease making, using, offering to sell, or selling the Zoom Bike” or any other product that infringed the ‘720 patent.  Under the agreement, Singleton was granted a limited license to sell its remaining inventory.

Newton now returns to the court alleging that Singleton has breached the settlement agreement by selling units of the Zoom Bike exceeding the scope of the limited license.  Newton further contends that this conduct constitutes willful infringement of the ‘720 patent.

This second complaint, filed by an Indiana patent lawyer, lists two counts:

  • Count I: Infringement of ‘720 Patent
  • Count II: Breach of Settlement Agreement

Newton asks the court for a declaration of willful patent infringement; damages, including a trebling of those damages; costs and attorneys’ fees; and injunctive relief.

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EconoLodge-Lafayaette-300x170Lafayette, IndianaChoice Hotels International, Inc. of Rockville, Maryland sued in the Northern District of Indiana alleging trademark infringement under federal and Indiana law.

Choice Hotels is in the business of franchising hotels.  It offers hotel and motel services under the following brands: CAMBRIA HOTELS & SUITES®, COMFORT INN®, COMFORT SUITES®, QUALITY®, SLEEP IN®, CLARION®, MAINSTAY SUITES®, SUBURBAN EXTENDED STAY HOTEL®, ECONO LODGE®, and RODEWAY INN®.

At issue in this Indiana trademark litigation is the Econo Lodge family of trademarks.  These trademarks include U.S. Trademark Nos.:

AmericanStructurePointIndianapolis, Indiana – The Indiana Court of Appeals affirmed the judgment of the Marion Superior Court in litigation between two civil engineering firms, Plaintiff American Structurepoint Inc. and Defendant HWC Engineering Inc.  Three former employees of ASI, also listed as Defendants in the trial court, were listed in this appeal.

This dispute arose in 2014 when ASI employee Martin Knowles left ASI to join HWC as its vice president of operations.  Jonathan Day and David Lancet also left ASI to begin employment at HWC.

These former ASI employees had entered into noncompetition and non-solicitation agreements with ASI.  Despite these agreements, ASI contended in a lawsuit filed in Indiana state court that its former employees engaged in various acts prohibited by the agreements.  ASI claimed that Day had created a list of ASI employees whom he believed might be interested in leaving to join HWC.  ASI also asserted that Day subsequently shared that list with Knowles and called various ASI employees regarding employment with HWC.  ASI alleged that a total of six job offers were made by HWC to ASI employees.  ASI further introduced evidence that Knowles engaged in prohibited business-development activities with ASI clients to ASI’s detriment.

Fort Wayne, Indiana – Super 8 Worldwide, Inc. f/k/a Super 8 Motels, Inc. of Parsippany, New Jersey sued in the Northern District of Indiana alleging trademark infringement and other wrongdoings.

Plaintiff Super 8 operates a franchise system for guest lodging.  It claims ownership to the SUPER 8® service mark as well as various related trade names, trademarks and serviceUntitled-1 marks, some of which have been registered with the U.S. Patent and Trademark Office.  It estimates the value of the entity’s goodwill to exceed hundreds of millions of dollars.

In this Indiana intellectual property lawsuit, Super 8 alleges that former franchisees have violated the terms of a franchise agreement entered into with Super 8.  Three Indianapolis Defendants were listed: Auburn Lodging Associates, LLP (“ALA”), Kokila Patel and Dilip Patel.  A fourth Defendant Chicago Capital Holdings, LLC (“CCH”) of Hinsdale, Illinois was also named.

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