Damages

September 30, 2022

Oakley Sues Local Business for Trademark Infringement

Indianapolis, Indiana – The Plaintiff, Oakley, Inc. (“Oakley”), is an American company operating as an independent subsidiary of Luxottica Group S.p.A. Oakley designs, develops and manufactures sports equipment and lifestyle pieces including, sunglasses, sports visors, ski/snowboard googles, watches, apparel, backpacks, shoes, optical frames, and other accessories. Oakley currently holds more than 600 patents for eyewear, materials and performance gear and numerous trademark registrations.

The Defendant, Batter’s Box, LLC (“Batter’s Box”) is an Indiana limited liability company having a principal place of business at 3510 S. Keystone Avenue, Indianapolis, Indiana. According to the Complaint, Shawn Lessor and Brandi Pierson are listed as principal owners, officers, managers and directors of Batter’s Box. Their website describes them as a state of art, year round, indoor facility with over 20,000 square feet of training area, and 18 multi-use indoor batting and pitching tunnels. It is also reported that Batter’s Box engages in the sale of sunglasses and related accessories at youth sports tournaments in Indiana, as well as through its own retail sporting goods store.

September 27, 2022

Former Employee Sues Kilroy’s for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Plaintiff, Elijah Schwartz (“Schwartz”) filed suit against his former Employer and Defendants, Kilroy’s North America LLC, Kilroy’s Sports, LLC, and Kilroy’s on Kirkwood, LLC (“Kilroy’s”) for Violation of the Wage Payment Act, Breach of Contract, Promissory Estoppel, Unjust Enrichment, Fraud, Declaratory Judgment of Copyright Ownership, and Copyright Infringement.

According to the Complaint, Schwartz began working for Kilroy’s as a server and bartender in August of 2021. He later was offered the position of AV Intern where his duties included services related to Defendants’ social media accounts and digital presence, assistance with their relationship with Barstool Sports, promotion of events, the creation of marketing and advertising content, which included the production, filming, and editing of video and digital content for the Defendants.

September 22, 2022

Orbital Engineering, Inc. Sues Ex-Employee & Competitor for Trade Secret Misappropriation

By Overhauser Law Offices, LLC

Crowne Point, Indiana – The Plaintiff, Orbital Engineering, Inc. (“Orbital”) filed suit against Defendants, DVG Team, Inc. (DVG) and former employee Zachary Topoll (“Topoll”) for Breach of Fiduciary Duty Damages Resulting from Conspiracy, Tortious Interference with Business Relations, Aiding and Abetting Breach of Fiduciary Duty, and Trade Secret Misappropriation.

Per the complaint and their website, Orbital, established in 1969, is a certified veteran owned business, which provides full-service solutions in engineering and design, construction management and QA/QC, safety and asset integrity services. The company services a broad range of industries, including infrastructure, metals, refinery, chemical, pipeline, terminal, gas processing and storage, and utilities. Their expertise is in Transmission & Distribution, Midstream and Downstream Oil, Gas and Chemical and Metals. They have six major offices in Pittsburgh (HQ), Philadelphia, Chicago, Detroit, St. Louis and Houston and various other locations.

DVG, founded in 1999, purports to be a team of professionals with a variety of expertise in areas of public infrastructure planning and construction, private and public utility development, engineering and site design, economic development and real estate development. They are based in Crown Point, Indiana.

August 9, 2022

PUMA Sues Competitor for Alleged Trademark and Patent Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – The Plaintiffs, PUMA SE and PUMA North America Inc. (“PUMA”), are world leaders in the sportswear industry. PUMA SE, based in Herzogenaurach, Germany, is a multi-national company that designs and manufactures athletic and casual footwear, apparel, and accessories. PUMA North America Inc. is a Delaware Corporation, with its principal place of business in Somerville, Massachusetts and is one of the top five sportswear brands in the world by revenue.

PUMA applied for a Federal Trademark registration under Application Serial No. 97171928 for the mark NITRO for footwear, namely, running shoes, training shoes, and basketball shoes. According to the Complaint, in or around December 2021, PUMA requested the Defendant, Brooks Sports, Inc. (“Brooks”) cease and desist the use of the Mark NITRO mark in connection with footwear. The parties were unable to reach a settlement.

PUMA also alleges that the Brooks shoe the “Aurora BL” infringes upon their Design Patent No. D897,075 and is being sold in connection with the infringing use of PUMA’s NITRO mark.

August 11, 2021

Dave Chappelle Sued for Allegedly Stealing a Joke

By Overhauser Law Offices, LLC

Hammond, Indiana – Pro se Plaintiff, Xavier Gatewood (“Gatewood”) claims to perform comedy in the Chicago area. Between 2014 and 2015, Gatewood claims Defendant, David Khari Webber Chappelle (“Chappelle”), saw him performing comedy at one or more of four places located within two miles of Chappelle’s movie shoot for “CHI-RAQ.”

According to the Complaint, Chappelle then used material from Gatewood’s performance in Chappelle’s standup special “Deep in the Heart of Texas” on Netflix. As Chappelle was allegedly paid $20 Million and the joke was exactly one minute long, Gatewood is seeking $303,030.30.

Unfortunately, the very short Complaint does not disclose the allegedly stolen joke and does not disclose or specifically allege any copyright registration or infringement. Further, while Gatewood lives in Indiana, the alleged theft took place in Illinois and Chappelle lives in Ohio, so jurisdiction may be another hurdle for Gatewood. Continue reading

August 18, 2020

Willfulness Not Required for Award of Profits in Trademark Infringement

By Overhauser Law Offices, LLC

The Supreme Court of the United States issued a ruling that a plaintiff alleging trademark infringement does not have to prove willfulness to recover an award of profits. This ruling came down in the case of Romag Fasteners Inc. (“Romag”), versus Fossil Group, Inc. FKA Fossil, Inc. et. al (“Fossil”).

In this case, Romag and Fossil entered into an agreement to use Romag’s fasteners on Fossil’s leather goods. Romag claimed factories in China were making Fossil’s leather goods using counterfeit Romag fasteners. As such, Romag sued Fossil, among other defendants, for trademark infringement, which can trigger an award of a defendant’s profits.

January 13, 2020

Trademark Law: United States Court of Appeals for the Seventh Circuit Affirms Award of Over $17.3 Million

By Overhauser Law Offices, LLC

The United States Court of Appeals for the Seventh Circuit issued an opinion reversing the denial of attorney’s fees, remanding for an entry of 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.

October 30, 2019

Indiana Copyright Litigation: Prevailing Plaintiff Ordered to Pay Losing Defendant’s Costs After Rejecting Rule 68 Offer

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Judge Richard L. Young of the Southern District of Indiana issued a decision on cross-motions for attorneys’ fees and costs in the case of Richard N. Bell (“Bell”) versus Michael Maloney (“Maloney”). The Court first entered judgment in favor of Bell on June 11, 2019 granting him $200 in statutory damages, and costs. Bell sought $33,536,25 in attorney’s fees and $4,719.80 in costs. Maloney made a cross-motion “for leave to file a Bill of Costs totaling $2,183.77 and to enforce the Rule 68 offer. The Court found that the Rule 68 offer should be enforced and Maloney is entitled to the costs he incurred after the offer was rejected.

Bell sent a demand letter to Maloney for $5,000.00 prior to filing this suit. After Bell filed suit, Maloney filed his Answer and then sent Bell an Offer of Judgment pursuant to FRCP 68. This offer was for $2,500.00 for Bell to take judgment against Maloney and would include all attorney’s fees and costs. Bell denied the Rule 68 offer and after the denial of cross-motions for summary judgment, the case went to a bench trial. After the one-day bench trial, the Court found Bell was the prevailing party and was entitled to $200 in statutory damages. Bell filed his motion for fees and costs eleven months after the bench trial occurred.

FRCP 68 provides in part, “[i]f the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.” The court in Payne v. Milwaukee Cty., 288 F.3d 1021, 1024 (7^th Cir. 2002), found that “Rule 68 is designed to provide a disincentive for plaintiffs from continuing to litigate a case after being presented with a reasonable offer.” In determining if a final judgment obtained is less favorable than a Rule 68 offer, “the attorney’s fees and costs that accrued before the offer must be added to the judgment.” Lawrence v. City of Philadelphia, 700 F.Supp. 832, 836 (E.D. PA. 1988).

October 7, 2019

Engineered by Schildmeier Granted Over $1.4 Million Dollars in Default Judgment

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Judge Richard L. Young in the Southern District of Indiana granted default judgment in favor of Engineered by Schildmeier, LLC (“Engineered”) and against WUHU Xuelang Auto Parts Co., LTD and Amazing Parts Warehouse (collectively the “Defendants”). Engineered filed suit seeking a declaratory judgment of both patent and trade dress infringement in late 2018. The patent allegedly infringed in the complaint is United States Patent No. D 816,584 (the “‘584 Patent”) for a “Pair of Bed Rail Stake Pocket Covers”.

When a defendant fails to plead or defend a case against them within the allotted time frame, they are in default. A plaintiff may motion the court for a default judgment, which is a binding judgment of the court for failure of the defendant to answer the allegations. The court can then grant a default judgment. If a proof of damages hearing is necessary, the judge can order such a hearing, but the defendant may not appear at that point to defend the amount of damages asserted by the plaintiff. A default judgment may be set aside upon request of the defendant, but they must show a good defense and legitimate excuse as to why they were in default to the court.

In this case, neither of the Defendants plead or otherwise defended themselves against the allegations set forth in Engineered’s complaint. As such, the court granted Engineered’s motion for default judgment and awarded damages accordingly. First, the Court found that the Defendants infringed the ‘584 Patent. Second, the Court found the Defendants violated Section 43(a) of the Lanham Act by infringing Engineered’s trade dress. Third, the Defendants were enjoined from importing, selling, or offering for sale any imitations of the ‘584 Patent. Finally, Engineered was awarded a total of $1,424,070.00. The damages award was calculated by adding $470,020.00 in lost profits; $940,040.00 in treble damages for willful infringement; $13,610.00 in attorneys’ fees; and $400.00 in court costs. By failing to appear and defend themselves, not only will defendants have default judgments granted against them, but as shown in this case, extremely large damages may also be imposed.

May 15, 2019

Jury Awards Herff Jones Multi-Million Dollar Verdict Against Jostens for Interfering with Employment Contracts

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Herff Jones, based in Indianapolis, Indiana won a multimillion-dollar case against its largest competitor, Jostens Inc., headquartered in Minneapolis, Minnesota. Herff Jones also won significant judgments against John Wiggins and Chris Urnis, former employees of Herff Jones distributor, Brent Gilbert of GradPro Recognition Products in the same case.

Jostens began negotiating employment agreements with Wiggins and Urnis prior to their leaving GradPro, despite their having strict noncompete agreements with GradPro, according to the lawsuit. The lawsuit further claimed one of Jostens authorized representatives took at least five employees from GradPro in an effort to take away business from Herff Jones.

Jostens lost the suit as the jury found it conspired and stole confidential and trade secret information and interfered with Herff Jones’ employment contracts. The jury awarded nearly $1.9 million in compensatory damages against Jostens, Wiggins, and Urnis to Herff Jones, and another $580,000 to Brent Gilbert of GradPro. Punitive damages in the amounts of $650,000, $25,000, and $10,000 were also assessed against Jostens, Wiggins, and Urnis, respectively.