Articles Posted in Copyright Infringement

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Fort Wayne, Indiana – Attorneys for Plaintiffs North Atlantic Operating Company, Inc. and National Tobacco Company, L.P., both of Louisville, Kentucky, filed a trademark infringement lawsuit in the Northern District of Indiana alleging infringement of various registered trademarks covering ZIG-ZAG® roll-your-own cigarette papers and accessories. In addition to trademark infringement under federal law, Plaintiffs allege copyright infringement, false designation of origin and trade dress infringement under federal law as well as trademark infringement and unfair competition under Indiana common law.

Multiple Defendants, most of Fort Wayne, Indiana, are named in this intellectual property lawsuit: KPC Distributor Inc.; Kuldeep Singh; Paramjit Singh; Charanjit Singh; Burger’s, Inc., d.b.a. Burger Dairy; JGM Stores Inc., d.b.a. Burger Dairy II; Kirandeep, Inc., d.b.a. Crescent Corner Express; KSL Stores Inc., d.b.a. Get 2 Go #10; KSL Holdings Inc., d.b.a. Get 2 Go #13; Coliseum Quick Mart Inc., a.k.a. Get 2 Go #15; Calhoun Store Inc., a.k.a. Get 2 Go 16; KPC Brothers Inc., a.k.a. Get 2 Go #17 d.b.a. Get 2 Go; Get 2 Go #18; Virk Brothers Enterprises Inc., a.k.a. Get 2 Go 19, d.b.a. Shell Get 2 Go #19; JAT Boyz Stores Inc., a.k.a Harlan Quick Stop; KPC Investments LLC, a.k.a. Iceway Express; John Does 1-10; and XYZ Companies 1-10.

At issue in this Indiana lawsuit are the following trademarks: Registration No. 610,530 for ZIG-ZAG (stylized), Registration No. 1,127,946 for ZIG-ZAG (text), Registration No. 2,169,540 for Smoking Man (design with circle border), Registration No.2,169,549 for Smoking Man (design with no border), Registration Nos. 2,664,694 and 2,664,695 for North Atlantic Operating Company, Inc. (design), and Registration Nos. 2,610,473 and 2,635,446 for North Atlantic Operating Company (text), all of which have been registered by the U.S. Patent and Trademark Office. The ZIG-ZAG trademarks are owned by a French company, Bolloré, S.A., which is not a party to this litigation, and are licensed to Plaintiff North Atlantic.

Defendants are accused of engaging in a widespread scheme to acquire, sell and/or distribute counterfeit products bearing various registered trademarks and/or copyrighted text that Plaintiffs allege is protected by law. This text includes the phrase “Distributed by North Atlantic Operating Company, Inc.”

Plaintiffs further contend that one or more Defendants’ conduct was willful. They contend that this was demonstrated on more than one occasion when a North Atlantic representative requested a receipt for the purchase of accused goods and this request was refused. On one occasion, when the representative insisted on a receipt, Plaintiffs state that “Defendant KPC Distributor ripped the receipt in two pieces, keeping the piece that displayed Defendant KPC Distributor’s contact information for itself.”

In this Indiana intellectual property lawsuit, filed by trademark litigators for Plaintiffs, Defendants are accused of having sold “dozens of cartons and hundreds of booklets of confirmed counterfeit ZIG-ZAG® Orange to undercover North Atlantic representatives.” Plaintiffs state the following claims:

• Federal Trademark Infringement (15 U.S.C. § 1114)
• False Designation of Origin and Trademark/Trade Dress Infringement (15 U.S.C. § 1225(a))
• Federal Copyright Infringement (17 U.S.C. §§ 101 et seq.)
• Common Law Unfair Competition

• Common Law Trademark Infringement

Plaintiffs ask the federal court for damages, injunctive relief, costs and attorneys’ fees.

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Chicago, Illinois – The Seventh Circuit Court of Appeals ruled against Plaintiffs Slep-Tone Entertainment Corp. and its successor in interest Phoenix Entertainment Partners LLC (collectively, “Slep-Tone”) in a Lanham Act lawsuit asserting trademark infringement and trade dress infringement.

Trademark attorneys for serial litigant Slep-Tone have filed more than 150 lawsuits throughout the country under the Lanham Act alleging unauthorized copying and performance of Slep-Tone’s karaoke tracks. Slep-Tone contends that such activities constitute trademark infringement and trade dress infringement.

This federal litigation springs from a technology upgrade available to Slep-Tone customers. Earlier formats on which karaoke songs were offered included CD+G compact discs (with the +G referring to the graphic component) and MP3+G media. With the advent of large-capacity hard drives, some customers opted to transfer the files contained on their lawfully purchased CD+G or MP3+G to a hard drive, a practice known as “media shifting.” Because many compact discs can be stored on one hard drive, media shifting removed the need to swap between multiple discs to access different songs. This transfer was permitted by Slep-Tone as long as the customers notified Slep-Tone, agreed to certain terms that restricted multiple copies from being made and agreed to submit to an audit to certify compliance with Slep-Tone’s media-shifting policy.

In this lawsuit, filed against Defendants Basket Case Pub, Inc. of Peoria, Illinois and Dannette Rumsey, its president and owner, Slep-Tone alleged that Defendants violated the media-shifting policy. This, it asserted, resulted in an improper “passing off” of illegitimate “bootleg” copies of tracks as genuine Slep-Tone tracks.

Slep-Tone contended that when these unauthorized copies were played by Defendants, the pub’s customers would be confused, believing that “they are seeing and hearing a legitimate, authentic Slep-Tone track, when in fact they are seeing an unauthorized copy.” This conduct, it claims, is prohibited trademark and trade dress infringement.

A district court in the Central District of Illinois concluded that Slep-Tone had not plausibly alleged that Defendants’ conduct resulted in consumer confusion as to the source of any tangible good sold in the marketplace and dismissed Plaintiffs’ complaint.

The Seventh Circuit agreed. While the appellate court granted that Slep-Tone may have had a plausible complaint of copyright infringement for “theft, piracy, and violation of Slep-Tone’s [media-shifting] policy,” consumer confusion is the touchstone of trademark infringement and such confusion was not present. It stated:

What pub patrons see and hear is the intangible content of the karaoke tracks. They will see Slep-Tone’s trademark and trade dress and believe, rightly, that Slep-Tone is the source of that intangible content. But patrons will neither see nor care about the physical medium from which the karaoke tracks are played; consequently, any confusion is not about the source of the tangible good containing the karaoke tracks.

Because Slep-Tone’s assertions did not constitute trademark infringement or trade dress infringement, the Seventh Circuit affirmed the district court’s dismissal of the lawsuit.

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Washington, D.C. – In the matter of Kirtsaeng v. John Wiley & Sons, Inc., the U.S. Supreme Court unanimously held that, among the factors considered in awarding attorneys’ fees under the Copyright Act, courts must give substantial weight to the objective reasonableness of the losing party’s position.

The Court was not persuaded that special consideration should be given to whether the lawsuit resolved important and close legal issues, expressing doubt that fee shifting will encourage parties to litigate such issues. While the Second Circuit test is close to what the Supreme Court prescribes, Justice Kagan wrote, in the Second Circuit, “substantial weight” has become “dispositive weight.” However, the Court also stressed that all circumstances of the case must be considered in light of the goals of the Copyright Act, acknowledging that fees may be warranted despite the objective reasonableness of the losing party’s position.

The decision is consistent with the position advocated in an AIPLA amicus brief filed in this case.

Background

Supap Kirtsaeng, born in Thailand, attended college in the United States. While he was studying in the United States, Kirtsaeng asked his friends and family in Thailand to buy and mail to him copies of foreign edition English language textbooks at Thai book shops, where they are sold at low prices. When publisher John Wiley & Sons (“Wiley”) learned about Kirtsaeng’s sales in the United States at low prices, it sued Kirtsaeng for copyright infringement.

In 2013, the Supreme Court ruled in favor of Kirtsaeng, concluding that Wiley’s sales of the books in Thailand exhausted its copyright interest in the U.S. sales under the first sale doctrine. On remand, Kirtsaeng’s motion for attorneys’ fees was denied. In affirming the decision, the Second Circuit relied on the objective reasonableness of Wiley’s position that the first sale doctrine did not apply to extra-territorial transactions.

Kirtsaeng asked the Supreme Court to review the attorney fee decision.

Competing Factors

Justice Kagan noted that Section 505 of the Copyright Act states that district courts “may” award attorneys’ fees to the prevailing party in copyright litigation, but said that the statute provides no standards for deciding when such awards are appropriate. Guidance for fee awards can be found in the Court’s decision in Fogerty v. Fantasy, Inc, she added, which includes a non-exclusive list of factors that further the goals of the Copyright Act.

In this litigation, each party asserted a factor believed to merit substantial weight: for Kirtsaeng, it is whether the lawsuit resolved an important and close legal issue; for Wiley, it is whether the position unsuccessfully argued by the losing party was objectively reasonable.

The Court concluded that the objective reasonableness of the losing party’s position is more important than the lawsuit’s role in settling a significant and uncertain legal issue. According to Justice Kagan, Wiley’s proposal “both encourages parties with strong legal positions to stand on their rights and deters those with weak ones from proceeding with litigation.” The copyright holder with no reasonable infringement claim has good reason not to sue in the first instance, she explained, and the infringer with no reasonable defense has every reason to give in quickly, before each side’s litigation costs mount.

By contrast, the Court continued, Kirtsaeng’s proposal would not produce any sure benefits. While litigation of close cases can advance the public interest by helping to clearly demarcate the boundaries of copyright law, it is not clear that fee shifting will necessarily, or even usually, encourage parties to litigate those cases to judgment, according to the Court. Justice Kagan explained as follows:

Fee awards are a double-edged sword: They increase the reward for a victory–but also enhance the penalty for a defeat. And the hallmark of hard cases is that no party can be confident if he will win or lose. That means Kirtsaeng’s approach could just as easily discourage as encourage parties to pursue the kinds of suits that “meaningfully clarif[y]” copyright law. … It would (by definition) raise the stakes of such suits; but whether those higher stakes would provide an incentive–or instead a disincentive–to litigate hinges on a party’s attitude toward risk. Is the person risk-preferring or risk-averse–a high-roller or a penny-ante type? Only the former would litigate more in Kirtsaeng’s world. … And Kirtsaeng offers no reason to think that serious gamblers predominate. … So the value of his standard, unlike Wiley’s, is entirely speculative.

What is more, Wiley’s approach is more administrable than Kirtsaeng’s. A district court that has ruled on the merits of a copyright case can easily assess whether the losing party advanced an unreasonable claim or defense. That is closely related to what the court has already done: In deciding any case, a judge cannot help but consider the strength and weakness of each side’s arguments. By contrast, a judge may not know at the conclusion of a suit whether a newly decided issue will have, as Kirtsaeng thinks critical, broad legal significance. The precedent-setting, law-clarifying value of a decision may become apparent only in retrospect–sometimes, not until many years later. And so too a decision’s practical impact (to the extent Kirtsaeng would have courts separately consider that factor). District courts are not accustomed to evaluating in real time either the jurisprudential or the on-the-ground import of their rulings. Exactly how they would do so is uncertain (Kirtsaeng points to no other context in which courts undertake such an analysis), but we fear that the inquiry would implicate our oft-stated concern that an application for attorney’s fees “should not result in a second major litigation.”

Substantial, But Not Dispositive, Factor

All of that said, objective reasonableness can be only an important factor in assessing fee applications–not the controlling one, Justice Kagan cautioned. “Although objective reasonableness carries significant weight, courts must view all the circumstances of a case on their own terms, in light of the Copyright Act’s essential goals,” she wrote.

The Court particularly acknowledged the serious concerns raised over the Second Circuit approach. While it frames the inquiry in a similar way, the Second Circuit language at times suggests that a presumption against a fee award arises from a finding of reasonableness. That perspective goes too far in limiting the district court’s analysis, according to the Court, observing that district courts in the Second Circuit appear to have turned “substantial” weight into something closer to “dispositive” weight. In particular, the Court acknowledged that hardly any of those decisions have granted fees when the losing party raised a reasonable argument (and none have denied fees when the losing party failed to do so).

Without suggesting that a different conclusion be reached, the Court vacated and remanded the case for further consideration in line with this analysis.

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Fort Wayne, Indiana – Design Basics, LLC of Omaha, Nebraska filed a copyright infringement lawsuit in the Northern District of Indiana. Defendants, located in Fort Wayne, are KAM Construction, LLC, KAM Construction, Inc., KAM AKAY Enterprises, LLC and Kamran Mirza, the owner of the three other Defendants.

Plaintiff Design Basics states that it is engaged in the business of creating, marketing, publishing and licensing the use of architectural works and technical drawings depicting those architectural works. At issue in this litigation are the following architectural works, which have been registered with the U.S. Copyright Office:

Title Registration Certificate Nos.
Plan No. 3064 – Eldridge VA 624-107, 624-108 & 1-093-811

Defendants in this lawsuit are Indiana homebuilders. They are accused of having published, distributed, marketed and advertised floor plans that infringe Plaintiff’s copyrighted works. Those accused plans are marketed by Defendants as Monte Carlo and Monte Carlo 3.

Indiana copyright attorneys for Plaintiff list a single cause of action: copyright infringement. The court has been asked to order damages, equitable relief, costs and attorneys’ fees.

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The U.S. Supreme Court agreed to review a patent case on the law of laches (SCA Hygiene Products v. First Quality Baby Products, U.S., No. 15-927) and a case on the copyrightability of cheerleader uniforms (Star Athletica, L.L.C. v. Varsity Brands, Inc., U.S., No. 15-866).

Specifically, the question presented in SCA is:

“Whether and to what extent the defense of laches may bar a claim for patent infringement brought within the Patent Act’s six-year statutory limitations period, 35 U.S.C. § 286.” 
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Southern District of Indiana – Copyright lawyers for frequent litigant Design Basics, LLC of Omaha, Nebraska filed two additional intellectual property lawsuits in the Southern District of Indiana alleging copyright infringement.

Plaintiff is engaged in the business of creating, marketing, publishing and licensing the use of architectural works and technical drawings of those works. Defendants are Indiana home designers and homebuilders.

The first lawsuit lists Defendant as T.K. Constructors, Inc. of St. Delaware County, Indiana. In the second lawsuit, two Defendants are listed, Regal Homes of Southern Indiana, L.L.C. of Warrick County, Indiana and The Home Plan Co., LLC of Vanderburgh County, Indiana.

Each Defendant is charged with the violation of a single copyrighted work. Design Basics asserts that T.K. Constructors, Inc. violated the copyright Design Basics’ “Lancaster” plan, which has been registered with the U.S. Copyright Office under Registration Nos. VA 371-204, 694-094 and 756-041.

Defendants in the second lawsuit are accused of violating a copyrighted work titled “Briarwood,” which was registered under Reg. Nos. VA 624-144, VA 726-369 and VA 624-143. This complaint lists eight counts, four asserting “Non-Willful Copyright Infringement” and four alternatively asserting “Willful Copyright Infringement.”

Defendants in each lawsuit are accused of having infringed the copyrighted architectural works by “copying, publishing, distributing, advertising, marketing, selling and/or constructing in the marketplace” various works, such as plans, drawings and houses, that were copied or otherwise derived from Plaintiffs’ copyrighted works.

Plaintiff seeks damages, equitable relief, costs and attorneys’ fees.

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Washington, D.C. – Reps. Hakeem Jeffries (D-NY), a member of the House Judiciary Committee, and Tom Marino (R-Pa) proposed legislation to create an alternative forum to facilitate the adjudication of “small” copyright claims. 

H.R. 5757, titled the Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2016, would establish a Copyright Claims Board (“CCB”) within the U.S. Copyright Office. Adjudication with the CCB is intended to be simpler and less expensive than proceeding in federal court. These cases would be heard by a CCB panel of three Copyright Claims Officers. Adjudicating in the CCB forum would be voluntary and respondents could opt out. 

The jurisdiction under CASE would be limited to civil claims of copyright infringement of $30,000 or less in damages. The CCB would also be authorized to hear claims of abusive takedown notifications under the Digital Millennium Copyright Act. 
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Northern District of Indiana – Copyright lawyers for Plaintiff Design Basics, LLC of Omaha, Nebraska filed three intellectual property complaints in the Northern District of Indiana alleging copyright infringement.

Plaintiffs are in the business of creating, marketing, publishing and licensing the use of architectural works and technical drawings of those works. Defendants are Indiana home designers and homebuilders.

Defendant in the first lawsuit is Miller Builders Inc. of St. Joseph County, Indiana. In the second lawsuit, two Defendants are listed, Citation Homes, Inc. and Citation Partners, LLC d/b/a Citation Partners, both of Tippecanoe County, Indiana. Defendants in the third lawsuit are Sky Hill Homes, Inc., By Larry Myers d/b/a Sky Hill Homes; Sky Hill Enterprises, LLC; Fall Creek Homes, Inc.; Fall Creek Development Corp. and Barry Light, all of Allen County, Indiana. W. L. Martin Home Designs LLC of Jacksonville, Florida joined as a second Plaintiff in the Sky Hill litigation.

Design Basics asserts that Miller Builders violated the copyright of a single work titled “Plan No. 2244 – Standley,” which has been registered with the U.S. Copyright Office under Certificate Nos. VA 434-218 and 752-162.

Defendants in the Citation and Sky Hill lawsuits are accused of violating multiple copyrighted works. Design Basics contends that Citation Defendants infringed copyrights in the following works:

Title                                       Registration Certificate Nos.
Plan No. 1330 – Trenton           VA 314-016, 694-094 & 756-041
Plan No. 1380 – Paterson         VA 314-024 & 694-094
Plan No. 1748 – Sinclair            VA 371-214, 694-094 & 726-353
Plan No. 1752 – Lancaster        VA 371-204, 694-094 & 756-041

Design Basics and Martin Home Designs list numerous allegations of copyright infringement in the lawsuit against the Sky Hill Defendants:

Title                                      Registration Certificate No.
Plan No. 1019 – Hazelton         VA 314-029, 726-355 & 694-093
Plan No. 1032 – Monte Vista    VA 282-203 & 752-162
Plan No. 1551 – Logan             VA 344-872 & 752-162
Plan No. 2219 – Shannon         VA 434-181, 752-162 & 1-950-217
Plan No. 2235 – Albany            VA 1-929-121, 434-219 & 756-041
Plan No. 2281 – Ingram            VA 434-179, 752-162 & 1-3340447752
Plan No. 3577 – Bennett           VA 682-208, 682-207, 694-095 & 710-605
Plan No. 4642 – Ackerly           VA 1-302-564
Plan No. 8013 – Gabriel Bay     VA 729-243 & 729-218
Plan No. 8031 – Robins Lane    VA 729-280 & 729-256
Plan No. 8103 – Deer Crossing  VA 726-352 & 726-446
Plan No. 8524 – Elgin               VA 1-074-917 & 1-077-469

Defendants in each lawsuit are accused of having infringed the copyrighted architectural works by “copying, publishing, distributing, advertising, marketing, selling and/or constructing in the marketplace” various works, such as plans, drawings and houses, that were copied or otherwise derived from Plaintiffs’ copyrighted works.

Plaintiffs seek damages, injunctive relief, costs and attorneys’ fees.

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Fort Wayne, Indiana – Plaintiff Angela Brooks-Nwenga of Fort Wayne, Indiana, acting pro se, filed two intellectual property lawsuits. The two complaints, comprising hundreds of pages, include allegations of copyright infringement.

Defendants in these lawsuits, both filed in the Northern District of Indiana, are National Heritage Academies, Inc. of Grand Rapids, Michigan and “Bart Peterson’s The Mind Trust” of Indianapolis, Indiana. Bart Peterson, the former mayor of Indianapolis, co-founded The Mind Trust in 2006.

Plaintiff Brooks-Nwenga alleges that Defendant National Heritage Academies infringed her rights in “Transitioning Into Responsible Students” (“TIRS”), which has been registered with the U.S. Copyright Office under Registration No. TX-6-628-223. Plaintiff asserts that she developed and piloted this program at Gambold Middle School in 2002 and that she owns the copyright.

The second lawsuit makes similar allegations of copyright infringement of TIRS against Defendant Bart Peterson’s The Mind Trust. Plaintiff contends that “Andrew Brown Education Model” and “Bridges to Success Model” are replicas of her copyrighted work.

Brooks-Nwenga previously sued The Mind Trust, United Way of Central Indiana, Central Indiana Education Alliance, Phalen Leadership Academies, and Indianapolis Public Schools asserting similar misconduct. That lawsuit, also filed in the Northern District of Indiana, was transferred to the Southern District of Indiana.

Plaintiff seeks injunctive relief, damages and costs.

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Indianapolis, Indiana – A copyright lawyer for Plaintiff Antara Murdock of Philadelphia, Pennsylvania sued in the Southern District of Indiana alleging that Defendant Author Solutions, LLC of Bloomington, Indiana committed copyright infringement.

Murdock, who is also known as Antara Shaddod, contracted with Author Solutions in 2009 to publish his written work, “Journey to Consciousness; Who Am I?,” which included cover artwork created also created by Murdock. According to the complaint, these works have been registered with the U.S. Copyright Office under Registration No. TXu-001821785.

This Indiana litigation arises from a dispute regarding the artwork on the cover of Murdock’s book, which Author Solutions published and marketed for Murdock. Murdock contends that he was dissatisfied with the artwork as the cover for his book and that he relayed this concern to Author Solutions. The complaint states that Author Solutions had asked Murdock to sign to approve the final version of the book, including the art on the cover. In e-mails with the company, Murdock asserted that a signature, which related to the cover artwork and was purportedly his, was fraudulent.

In this federal lawsuit, Murdock contends that, by unlawfully publishing an unapproved draft of his book, Author Solutions “willfully used Plaintiff’s copyrighted Works without his permission and that it published, communicated, benefited through, posted, publicized and otherwise held out to the public for commercial benefit, the original and unique work of Plaintiff without Plaintiff’s consent or authority, and acquired monetary gain and market benefit as a result.”

The complaint lists a single count, copyright infringement. Murdock asks the court for statutory damages of up to $150,000, along with injunctive relief, costs and attorney’s fees.

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Indiana Intellectual Property: IP Litigation, Patents, Trademarks, Copyrights
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