Breach of Contract

July 12, 2021

Watch Communications Sues Ex-Employees for Alleged Trade Secret Misappropriation

Indianapolis, Indiana – Apparently, W.A.T.C.H TV Company d/b/a Watch Communications (“Watch”), the Plaintiff, is in the business of providing broadband Internet access to consumers and enterprise customers in Ohio, Indiana, Illinois, and Kentucky. Defendant, Greg Jarman (“Jarman”), was allegedly an employee of Watch beginning in February 2014. According to the Complaint, Jarman was then elected to the positions of Vice President of Operations and Chief Operating Officer in March 2018. In February 2019, Watch claims Jarman approached the President and Chief Executive Officer, Ken Williams (“Williams”) with an opportunity to assist in a project in Tennessee. However, Watch claims Williams instructed Jarman to not proceed with the Tennessee project because Watch did not have a presence in Tennessee.

June 28, 2021

Defendants File Notice of Removal in Case Filed by Noble Roman’s

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Defendants, Gateway Triangle Corp., 7405 Indy Corp., 850 Indy Corp. Northlake Marketing, LLC and Thomas M. Collins, in a suit originally filed by Noble Roman’s, Inc. in the Superior Court of Marion County, Indiana filed a Notice of Removal to the United States District Court for the Southern District of Indiana.

According to the Complaint, Noble Roman’s is the exclusive holder of licensing and franchising rights relating to the Noble Roman’s pizza brand. Noble Roman’s claims while they had a Franchise Agreement with Defendant Gateway, that Franchise Agreement terminated on December 31, 2019. Noble Roman’s filed suit seeking damages for Defendants’ alleged conversion and theft of Noble Roman’s property rights in violation of Indiana Code §§ 35-43-4-3 and 34-43-4-2. The Complaint further sought damages for breach of the Franchise Agreement, trademark infringement of U.S. Registration Nos. 987,069, 1,920,428, and 1,682,308, and unjust enrichment.

Defendants claim the case is removable under 28 U.S.C. § 1441 in part because federal question jurisdiction exists as Noble Roman’s asserted a federal claim under the Lanham Act. Further, Defendants assert the Southern District of Indiana has supplemental jurisdiction of the state law claims under 28 U.S.C. § 1367(a) because they form part of the same case or controversy as the federal trademark claims.

June 1, 2021

Indiana Copyright Infringement Litigation: Two Marion County Residents Sued for Alleged Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – LHF Productions, Inc. and Fallen Productions, Inc. (the “Plaintiffs”) own copyrights for the screen plays and motion pictures London Has Fallen (Certificate Number PA0001982831) and Angel Has Fallen (Certificate Number PA2197434) (hereinafter the “Works”), respectively. The Plaintiffs claim Derek S. Dueker (“Dueker”) and Doel aka byanski@gmail.com (“Doel” and collectively the “Defendants”) “registered for accounts with a notorious piracy website referred to as YTS” (the “YTS Website”). According to the Complaint, Dueker downloaded, reproduced, and shared copies of the Works numerous times in 2019. Doel also allegedly downloaded, reproduced, and shared copies of Angel Has Fallen.

According to the Complaint, Dueker and Plaintiffs entered into a settlement agreement in which Dueker would provide certain information relating to the copyright infringement along with paying $950. However, Plaintiffs claim Dueker failed to provide the signed declaration or pay the $950 as required by the agreement.

The Plaintiffs are seeking damages for direct copyright infringement in violation of 17 U.S.C. §§ 106 and 501. Plaintiffs are further claiming willful contributory copyright infringement in violation of 17 U.S.C. § 504(c)(2). Third, Plaintiffs claim Defendants knowingly concealed infringement of the Works by removing or altering the copyright management information in violation of the Digital Millennium Copyright Act, 17 U.S.C. § 1202. Finally, Plaintiffs are suing Dueker for breach of contract.

February 19, 2021

WishBone Medical, Inc. Sued for Alleged Patent Infringement

By Overhauser Law Offices, LLC

Warsaw, Indiana – Apparently Orthopediatrics Corp. and Orthex, LLC (collectively “Ortho”), the Plaintiffs, own a patented method of fixing broken or deformed bones, United States Patent No. 10,258,377 (the “‘377 Patent”). Ortho claims Defendants, WishBone Medical, Inc. (“WishBone”) and Nick A. Deeter (“Deeter”), have infringed the ‘377 Patent. According to the Complaint, Deeter was an employee of Ortho from 2006 to 2013. Thereafter, Deeter apparently started WishBone in 2016.

Ortho claims WishBone’s “Smart Correction® External Fixation System” not only infringes the ’377 Patent, but that “WishBone admittedly knew of the ‘377 Patent by no later than June 2019, but proceeded to move forwarded [sic] with its infringing, copycat system.” Additionally, Ortho claims Deeter has breached his severance agreement in which he agreed not to disparage Ortho.

Ortho is seeking enhanced damages and attorneys’ fees for patent infringement pursuant to 35 U.S.C. §§ 284 and 285. Further, Ortho is seeking damages for unfair competition and false advertising under the Lanham Act. Finally, pursuant to Indiana common law, Ortho is suing Deeter for breach of contract, and both Defendants for defamation, tortious interference with contractual relationships, and tortious interference with prospective contractual relationships.

December 18, 2020

Declaratory Judgment Sought Against Dog Trainer Donna Chandler

By Overhauser Law Offices, LLC

Indianapolis, Indiana – According to the Complaint, Donna Chandler (“Chandler”), one of the Defendants and owner of Co-Defendant, Show Colors, Inc. (“Show Colors”), is the author of a canine training book called “Good Dog!” Apparently, Chandler along with Plaintiffs, Kevin DeTrude (“DeTrude”) and Content & Commerce, Inc. (“Content” and collectively “Plaintiffs”), are members of nominal defendant, My K9 Behaves LLC (“My K9”). Content is allegedly in the business of website development and marketing and is owned by Keneth Zweigel (“Zweigel”). Per the Complaint, Chandler, DeTrude, and Zweigel began working on an online instruction course based upon two books written by Chandler (the “Online Class”) in January 2016. The parties apparently also discussed converting the text-based course to a video format.

Two videos were allegedly recorded and paid for by DeTrude in 2016 with a script for a third video written around February 2017. It appears Chandler, Content, and DeTrude officially formed their business on April 4, 2017, but the parties did not execute an Operating Agreement for the business until mid-June 2017, which included clauses assigning all common law and registered trademark and copyrights, including Chandler’s books and the publishing rights to My K9 (the “Assigned Rights”). Upon dissolution or the termination of Chandler’s ownership in My K9, the Assigned Rights would allegedly revert back to Chandler. According to the Complaint, shortly after the Operating Agreement was executed, a third video was recorded and paid for by Zweigel.

As My K9 was experiencing apparent success, the company entered into a Publishing Agreement for a third book to be written by Chandler with the rights assigned to My K9. Allegedly due to the length of time spent writing the book, the first Publishing Agreement was revoked, and a Second Publishing Agreement was put in place. The Plaintiffs claim Chandler then began demanding a greater portion of the profits and ultimately decided if the rights to the third book were not in her name only, she simply would not publish the third book. Chandler then apparently informed DeTrude and Content that she was withdrawing her membership in My K9 and demanded they cease and desist using her name or likeness and re-assign the Assigned Rights back to her.

DeTrude and Content are seeking a declaratory judgment of copyright and trademark ownership “including any derivative or original intellectual property created by or on behalf of My K9. Further, to the extent the Plaintiffs own any of the copyrighted works, they allege Chandler and Show Colors have infringed those works by profiting off the sale of the works individually and not for the benefit of My K9. To the extent Plaintiffs own any trademarks, they are similarly claiming trademark infringement. Plaintiffs have also brought derivative and direct claims for breach of fiduciary duty, usurpation of corporate opportunities, theft and conversion pursuant to I.C. § 35-43-4-3. Finally, Plaintiffs are claiming breach of contract for Defendants’ alleged breach of the Operating Agreement.

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.

July 17, 2020

Indiana-Based Escalade Sports Seeks Declaratory Judgment of Non-Infringement

By Overhauser Law Offices, LLC

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.

July 14, 2020

Meier Photography Sues Noblesville Audio Company for Alleged Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Jeremy 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.”

April 23, 2020

Syndicate Sales Gains Home-Field Advantage in Trademark Infringement Suit

By Overhauser Law Offices, LLC

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.

April 8, 2020

Competing Jewelry Companies in Court Again over Alleged Infringement

By Overhauser Law Offices, LLC

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.

Corlinea 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.