Articles Posted in Indiana State Law

Evansville, Indiana – Richard Litov of Evansville, Indiana sued Freedom Heritage Museum, Inc., of Evansville, Indiana alleging trademark infringement.  Litov asserts claims under both federal and Indiana law.Freedom

Litov claims that he conceived the idea for the museum – a collection of exhibits and artifacts from the World War II era – as well as the museum’s name, stating that he served as its founding president and a founding board member.  He asserts that the museum used the trademarked name pursuant to permission that he granted “as president and board member” of the museum.

The trademark in question has been registered under Litov’s name as U.S. Trademark Registration No. 4,939,292.  Litov states in his complaint that the registration covers the words FREEDOM HERITAGE MUSEUM and an associated design.  The word portion of the trademark, as listed by the U.S. Patent and Trademark Office’s website, is FREEDOM HERITAGE MUSEUM, EST. 2012, EVANSVILLE INDIANA.  The application for the trademark registration was filed on July 6, 2015 and granted on April 19, 2016.

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Indianapolis, Indiana – Plaintiff Heartland Consumer Products LLC of Carmel, Indiana filed an intellectual property lawsuit in the Southern District of Indiana alleging trademark and trade dress infringement, trademark dilution and unfair competition under the Lanham Act, as well as related wrongdoing under the Indiana State Trademark Act, the common law of the State of Indiana and the Indiana Crime Victims Act.  The intellectual property at issue pertains to Splenda®, a Heartland trademark under which it offers sucralose, a low-calorie sweetener.

Defendants in the litigation are Dunkin’ Brands, Inc. and Dunkin’ Donuts Franchised Restaurants LLC Untitled-1-300x102of Canton, Massachusetts.  They are accused of “deceiving customers into believing the Dunkin’ Donuts restaurants carry Splenda® Brand Sweetener,” by both tacitly and affirmatively misrepresenting that the non-Splenda sucralose product that the Dunkin’ Defendants offer is, in fact, Heartland’s Splenda.  Plaintiff contends that consumers were confused about whether the sweetener that the Dunkin’ Defendants offered was Splenda and that some have complained that adding the other sweetener to their Dunkin’ Donuts products imparted a “funny taste.”

Defendants discontinued their agreement to purchase and offer Heartland’s Splenda in April 2016.  According to the Indiana complaint, following that decision, Defendants began offering sweetener in yellow packets similar to the single-serving packets in which Splenda is offered to the public.  Plaintiff contends that, when asked, Defendants in a “clear majority of stores affirmatively represented, through their agents or employees, that non-Splenda® sucralose sweetener was instead Splenda® Brand Sweetener.”  Plaintiff further contends that Dunkin’ Defendants are misappropriating Plaintiff’s trademarked “Sweet Swaps®” by the use of a similar term “Smart Swaps.”

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Indianapolis, Indiana – Plaintiff Delicato Vineyards of Manteca, California filed a lawsuit in the Southern District of Indiana alleging trademark infringement and other wrongdoing. Defendant is Gnarly Grove Cider Co. of Columbus, Indiana.

Plaintiff Delicato claims ownership to two trademarks, U.S. Trademark Registration No. 3165707 for GNARLY HEAD, and U.S. Trademark Registration No. 4777145 for a design trademark. It offers Gnarly Head wine products for sale using these trademarks.

Defendant Gnarly Grove recently launched Gnarly Grove hard cider. Plaintiff contends that both the name and the trade dress of this product are confusingly similar to its Gnarly Head wine. It asserts that the similarities appear to be an intentional effort on the part of Defendant to capitalize on the reputation of the GNARLY HEAD brand.

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In this lawsuit, filed by Indiana trademark attorneys for Delicato, the following causes of action are alleged:

• Registered Trademark and Trade Dress Infringement -15 U.S.C. § 1114(1)
• False Designation of Origin -15 U.S.C. § 1125(a)

• Common Law Unfair Competition

Plaintiff is seeking equitable relief, damages, costs and attorneys’ fees.

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Untitled-1-300x194Indianapolis, Indiana – Trademark attorneys for Plaintiff The American Automobile Association, Inc. (“AAA”) filed a trademark lawsuit in the Southern District of Indiana. Two Bloomington Defendants are named, AAA Automotive Parts and the company’s owner. Defendants also do business as AAA Automotive & Truck Parts, and  d/b/a AAA Automotive Parts.

AAA, a not-for-profit corporation, offers “travel and automobile products and services (including automobile repair services at its AAA Car Care Centers and through AAA Approved automobile repair businesses), financial advice, insurance and warranty coverage, and discounts.”

Defendants own and run a website, TRIPLEAPARTS.COM, on which they advertise automobile-related goods and services. Defendants also have brick-and-mortar shops in Indianapolis and Griffith, Indiana as well as locations in Missouri and Florida.

In this Indiana trademark lawsuit, lawyers for AAA listed the following causes of action:

• Count I: Federal Trademark Infringement in Violation of Section 32 of the Lanham Act
• Count II: Federal False Designation of Origin and Unfair Competition in Violation of Section 43(a) of the Lanham Act
• Count III: Federal Trademark Dilution in Violation of Section 43(c) of the Lanham Act
• Count IV: Cybersquatting Under Section 43(d) of the Lanham Act
• Count V: Trademark Dilution Under Ind. Code § 24-2-1-13.5
• Count VI: Trademark Infringement Under Ind. Code § 24-2-1-13

• Count VII: Unfair Competition and Trademark Infringement Under Common Law

AAA, which claims ownership to over 100 trademarks, contends that the following trademarks are at issue in this lawsuit:

Reg. No. 829,265

AAA Mark, used in connection with a
variety of automobile association services and emergency roadside services

Reg. No. 2,158,654

AAA & Design Mark, used in
connection with a variety of automobile association services and emergency roadside
services

Reg. No. 3,316,227

AAA & Design Mark, used in
connection with “[i]ndicating membership in a(n) automobile membership
club”

Reg. No. 1,168,790

TRIPLE A Mark, used in connection
with a variety of automobile association services

Reg. No. 3,046,904

AAA Mark, used in connection with
repair services

Reg. No. 3,046,905

AAA & Design Mark, used in
connection with repair services

Reg. No. 3,102,319

AAA & Design Mark, used in
connection with vehicle parts

Reg. No. 5,036,379

AAA Mark & Design, used in
connection with a variety of automobile association services and emergency
roadside services

Reg. No. 1,449,079

AAA APPROVED AUTO REPAIR & Design
Mark, used in connection with automobile repair services

Reg. No. 3,604,164

AAA TOTAL REPAIR CARE Mark, used in connection
with auto diagnosis and repair services

 

AAA seeks damages and asks that those damages be trebled pursuant to 15 U.S.C. § 1117 and Indiana law. It also seeks equitable relief, costs and attorneys’ fees.

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South Bend, Indiana – Patent lawyers for Plaintiff Swagway, LLC of South Bend, Indiana sued Defendants Hangzhou Chic Intelligent Technology Co., Ltd. (“Chic”) of Hangzhou, People’s Republic of China, Jansco Marketing, Inc. of Pembroke, Massachusetts and COKeM International, Ltd. of Shakopee, Minnesota.

Swagway and Chic both sell self-balancing two-wheeled boards, also known as “hoverboards,” in the U.S. market. The two companies had an intellectual property dispute, with Chic alleging that Swagway infringed two of its patents. This dispute allegedly included letters sent by Chic that appeared to threaten Swagway’s business partners with litigation if they sold Swagway products that Chic alleged were infringing. Swagway also contends that Chic delayed Swagway’s goods by falsely alleging infringement to Chinese customs officials. It also states that Chic later issued a press release falsely stating that Swagway’s goods had been seized as infringing. When the dispute persisted, Chic sued Swagway in the Northern District of California on allegations that Swagway had infringed U.S. Patent No. 9,376,155 and U.S. Design Patent No. D737,723.

Swagway responded in part by filing a second federal lawsuit in the Northern District of Indiana. In its Indiana complaint, it accuses Chic and its agents, including Jansco and COKeM, of having made “numerous false and misleading statements” to Swagway’s retailers and customers regarding Swagway, its hoverboards, as well as the patent rights that Chic alleged in the California litigation. Plaintiff contends that “Defendants made these statements for the sole purpose of causing harm to Swagway’s business and preventing fair competition.” Swagway also contends that Chic withheld material information from the U.S. Patent and Trademark Office and that, consequently, the registration of several patents was improper.

In its Indiana lawsuit, patent attorneys for Plaintiff assert the following claims:

• Count I: Unfair Competition under the Lanham Act
• Count II: Unfair Competition under Indiana State Law
• Count III: Tortious Interference with Business Relationships

• Count IV: Defamation

Plaintiff has requested damages of no less than $30 million and also includes a prayer for punitive damages. Plaintiff further seeks equitable relief as well as reimbursement of costs and attorneys’ fees.

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South Bend, Indiana – Copyright lawyers for Plaintiff The Art of Design, Inc. of Elkhart, Indiana filed an intellectual property lawsuit in the Northern District of Indiana. Defendants in this Indiana lawsuit are Pontoon Boat, LLC d/b/a Bennington and Bennington Marine of Elkhart, Indiana and Hawkeye Boat Sales, Inc. of Dubuque, Iowa.

Plaintiff is in the business of custom airbrushing, including the airbrushing of copyrighted art works onto different surfaces. Defendants offer marine goods, including pontoon boats. In 2011, Plaintiff and Bennington entered into an agreement wherein Bennington paid Plaintiff to apply copyrighted graphics, titled “Shatter Graphics,” to a limited number of Bennington’s pontoon boats in exchange for payment.

Plaintiff contends that, following this authorized application of Shatter Graphics to Defendants’ pontoon boats, Defendant made further use of the copyrighted design without Plaintiff’s authorization.

In this Indiana litigation, Plaintiff makes several allegations, including accusing Defendant of copyright infringement for the sale of pontoon boats bearing graphics “that are copied from and substantially similar to” Plaintiff’s Shatter Graphics, which has been registered with the U.S. Copyright Office under Registration numbers VA 1-979-388 and 1-982-002. The lawsuit lists the following claims for relief:

• Count I – Breach of Contract against Bennington
• Count II – Unjust Enrichment against all Defendants
• Count III – Copyright Infringement against all Defendants
• Count IV – Unfair Competition against all Defendants
• Count V – Inducing Copyright Infringement against Bennington

• Count VI – Violations of DMCA, 17 U.S.C. § 1202

Plaintiff is seeking damages, including treble damages, as well as equitable relief, costs and attorneys’ fees.

Practice Tip: Plaintiff’s copyright attorneys also represent frequent litigant Design Basics. We have blogged about Design Basics’ Indiana copyright litigation before. See:

Design Basics Sues Fort Wayne Homebuilders
Creator of Architectural Designs Files Two New Copyright Lawsuits
Design Basics Files Three New Indiana Copyright Lawsuits
Architecture Firms File Four New Infringement Lawsuits
Design Basics Files Two New Copyright Lawsuits
Architecture Firm Files New Lawsuit Asserting Infringement
Design Basics Files Two Additional Infringement Lawsuits in the Northern District
Design Basics Files Additional Indiana Lawsuit

Design Basics Sues Builders and Others Alleging Infringement of Copyrighted Architectural Designs

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Indianapolis, Indiana – Trademark attorneys for Eli Lilly and Company of Indianapolis, Indiana and Novartis Tiergesundheit AG of Basel, Switzerland filed a lawsuit in the Southern District of Indiana alleging trademark infringement and unfair competition.

Plaintiffs offer pet medications, such as flea-control and heartworm treatments, for sale in the U.S. and other countries worldwide. Among these medications are the following trademarked products, which have been registered by the U.S. Patent and Trademark Office:

ELANCO, registration number 710,473
COMFORTIS, registration number 3,370,168
INTERCEPTOR, registration number 2,015,850
CAPSTAR, registration number 2,510,863

TRIFEXIS, registration number 3,944,743

Plaintiffs allege that Defendants Scott Martin d/b/a Best Value Pet Supplies of Queensland, Australia and various unknown “Doe” Defendants infringed the trademarks at issue by selling in the U.S. trademarked products that were intended for sale in other countries via their website, www.bestvaluepetsupplies.com.

Plaintiffs contend that these products are materially different from products intended for sale in the U.S., citing differences such as different units of measure as well as non-U.S. addresses and telephone numbers listed on packaging as contact information.

In this Indiana trademark lawsuit, the following counts are alleged:

• Count I: Trademark Infringement in Violation of Section 32 of the Lanham Act
• Count II: Unfair Competition in Violation of Section 43(a) of the Lanham Act
• Count III: Unfair Competition in Violation of Indiana Common Law

Plaintiffs contend that Defendants’ conduct was willful and ask the court to order equitable relief, as well as the payment of compensatory and punitive damages, attorneys’ fees and costs of this litigation.

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Indianapolis, Indiana – Trademark attorneys for Eye 4 Group, LLC Corporation (“E4G”) of Fishers, Indiana filed an intellectual property lawsuit in the Southern District of Indiana. Defendants are Indianapolis Signworks, Inc. (“ISW”) of Indianapolis, Indiana and Andrew Chapman of Carmel, Indiana, the owner of ISW.

Plaintiff E4G is in the business of graphic design, sign manufacturing, metal fabrication, promotional material and apparel. It owns a registration for the trademark EYE 4 GROUP, Reg. No. 4,694,655, which has been issued by the U.S. Patent and Trademark Office. It has also an application for the registration of a second trademark for EYE 4, pending under Serial No. 87/018,205.

E4G states that Defendant ISW is a direct competitor in the business of making signs as well as associated tools and products. E4G, which owns and operates the website eye4group.com, contends that ISW has used the internet domain name “eyefourgroup.com” and, in doing so, has infringed E4G’s intellectual property. E4G asserts that Defendants’ actions constitute a knowing infringement of its trademark rights and that those actions were intentional, willful and in bad faith.

In this Indiana lawsuit, Plaintiff alleges direct and contributory trademark infringement, false designation of origin, and unfair competition arising under the Lanham Act; dilution under the Federal Trademark Dilution Act; violations of the Anticybersquatting Consumer Protection Act and related wrongdoing under Indiana state law.

Plaintiff seeks injunctive relief and monetary relief, including punitive damages, attorney fees and costs of the litigation.

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Indianapolis, Indiana – A Massachusetts trademark lawsuit filed in July 2015 was transferred to the Southern District of Indiana, Indianapolis Division. Plaintiff Get In Shape Franchise, Inc. (“GIS”), a Massachusetts-based franchisor, alleges that Defendants TFL Fishers, LLC and its sole member, Rosalyn Harris; Thinner For Life, Inc.; and Fit Chicks, LLC, all of Fishers, Indiana infringed its intellectual property rights. GIS asks the Indiana federal court: (1) to order the discontinuation of Defendant’s infringement of its registered trademarks; (2) for injunctive relief due to breach of contract, unfair competition and breach of the covenant of good faith; (3) to order compliance by Harris of her post-contractual obligations.

GIS sells fitness franchises under the service mark “Get In Shape For Women.” Registration Certificates for Plaintiff are as follows:

MARK Reg. No. Reg. Date
“Get in Shape for Women” Service Mark Reg. 3,374,173 Jan. 22, 2008
“Your treatment is complete” Service Mark Reg. 4,241,902 Nov. 13, 2012
“Get in Shape for Women Small Group Personal Training” Service Mark Reg. 4,249,694 Nov. 27, 2012

Plaintiff contends that it entered into such a franchise agreement with TFL Fishers and Harris in April 2013 for use in the Fishers, Indiana market. This agreement provided for payment to the franchisor of a transfer fee as well as a royalty on the franchise’s gross sales. Plaintiff contends that, pursuant to the agreement, Harris also agreed to various restrictions on her activities, including prohibitions on certain activities that would compete with GIS.

According to the complaint, Harris notified GIS on June 24, 2015 that TFL Fishers was discontinuing its franchised business and had closed its Fishers fitness studio. Instead, contends Plaintiff, it discovered on June 30th that the Fishers studio continued to operate but that it had changed its name to “Fit Chicks.” GIS alleges that this was improper. It also accuses Defendants of other wrongful acts, such as willfully underreporting total sales and, consequently, underreporting the royalty fees due to GIS.

Trademark attorneys for Plaintiff list the following claims for the Indiana federal court’s review and adjudication:

• First Cause of Action: Violation of the Lanham Act
• Second Cause of Action: Breach of Contract – Injunctive Relief
• Third Cause of Action: Breach of Contract – Damages
• Fourth Cause of Action: Breach of the Covenants of Good Faith and Fair Dealings
• Fifth Cause of Action: Unjust Enrichment
• Sixth Cause of Action: Unfair Competition

• Seventh Cause of Action: Fraud

Plaintiff seeks damages, including treble damages, along with enforcement of the franchise agreement, equitable relief, attorney’s fees and costs.

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Hammond, Indiana – Trademark attorneys for Plaintiff Indiana Botanic Gardens, Inc. of Hobart, Indiana sued Defendant Snyder Manufacturing Corporation of Long Beach, California, which does business as Eurospa Aromatics and Eurospa Chemicals, alleging trademark infringement and related causes of action.

At issue in the lawsuit is U.S. Trademark Registration No. 1,327,965 for the trademark EUCAMINT for camphorated ointment. Plaintiff states that it owns this registration, which was issued April 2, 1985. It also states that the mark was first used in commerce in 1925. Plaintiff contends that Defendant’s use of EUCAMINT to market an aromatic shower mist infringes its trademark.

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This litigation, filed by Indiana trademark lawyers for Plaintiff, asserts the following causes of action:

• Count I: Federal Trademark Infringement
• Count II: Unfair Competition Under Federal Law

• Count III: Common Law Trademark Infringement and Unfair Competition Under Indiana Law

Plaintiff Indiana Botanic Gardens claims that Defendant Snyder Manufacturing acted intentionally and willfully in an attempt to trade upon the goodwill of the EUCAMINT trademark. Plaintiff asks that the court order the payment of damages, including punitive damages. It also seeks equitable relief, costs and attorneys’ fees.

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