Articles Posted in New Decisions

JoeHand-BlogPhoto-1-300x100Indianapolis, Indiana – In April of 2018, Attorneys for Plaintiff, Joe Hand Promotions, Inc., of Feasterville, Pennsylvania, filed suit in the Southern District of Indiana alleging that Defendants, The Anchor Lounge, LLC, d/b/a The Anchor Lounge, of Muncie, Indiana, and Randy Phillips, an individual residing in Delaware County, Indiana, infringed its rights in the “Ultimate Fighting Championship® 207: Nunes v. Rousey” (the “Program”). Plaintiff sought statutory damages, attorney’s fees, interest, and cost of suit. On October 25, 2018, the court entered default judgment in the Plaintiff’s favor.

Joe Hand is in the business of licensing and distributing pay-per-view sporting events to commercial locations. In their Memorandum of Points and Authorities in Support of their default motion, they claim that Defendants realized a profit of $1,155.00 by not paying the approximate licensing fee they would have paid if they had contracted with Joe Hand. Plaintiffs have filed multiple lawsuits in Indiana and across the nation against commercial establishments that have not contracted with them to exhibit pay-per-view programs, such as the Program in this case, seeking damages under 47 U.S.C. §§ 553 and 605.

While Plaintiff has received default judgments in two separate cases in Indiana this week, the Southern and Northern District Courts awarded the damages in two different manners. For instance, the Southern District in this case awarded Joe Hand the full requested amount of $41,570.00. The Judge in the Northern District, however, parsed out the specific amounts due under the statutes and reduced the award amount requested by more than half. This shows that judges are able to use their discretion in awarding damages and do not have to award the full amount requested just because the defendant did not appear, but they may if they believe the amount requested is sufficient.

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South Bend, Indiana – In April 2018, Attorneys for Plaintiff, Joe Hand Promotions, Inc. (“Joe Hand”), ofJoeHand-BlogPhoto-300x100 Feasterville, Pennsylvania, filed suit in the Northern District of Indiana alleging that Defendants, MBK Holdings, Inc. d/b/a Matey’s Restaurant & Bar, of Michigan City, Indiana, Bryan Konieczny, and Mark Kehoskie, both individuals residing in Indiana, infringed its rights in the “UFC 202: Diaz v. McGregor 2”, “UFC 203: Miocic v. Overeem”, “UFC 205: Alvarez v. McGregor”, “UFC 207: Nunes v. Rousey”, “UFC 208: Holm v. de Randamie”, and UFC 210: Cormier v. Johnson 2” (the “Programs”). Plaintiff sought statutory damages, attorney’s fees, interest, and costs. Default Judgment in favor of Joe Hand Promotions, Inc. was entered as of October 19, 2018.

Joe Hand specializes in exclusively distributing and licensing premier, pay-per-view sporting events, including the Programs, to commercial locations. Plaintiff worked with multiple locations in Indiana to license and distribute the Programs so the commercial establishments could show them to their patrons. Defendants did not contract with the Plaintiff to show the Programs, even though they could have and could have paid the accompanying licensing fee of approximately $1,680.00 for such. Joe Hand asserts that Defendants willfully intercepted the interstate communication of the Programs and unlawfully exhibited them to their patrons within their commercial establishment.

Plaintiff sought judgment against Defendants for wrongful actions violating 47 U.S.C. § 605, or alternatively, 47 U.S.C. § 553. They asked for the maximum statutory damages of $110,000.00 under 47 U.S.C. § 605, or alternatively, the maximum statutory damages of $60,000.00 under 47 U.S.C. § 553, plus attorney’s fees, interest, and costs. While the Judge did enter a default judgment against the Defendants, he did not enter the entire amount of statutory damages requested. Instead, he broke down the total damages of $42,002.00 as follows:

  • $10,080.00 in statutory damages under 47 U.S.C. § 605(e)(3)(C)(i)(II);
  • $30,240.00 in additional damages under 47 U.S.C. § 605(e)(3)(C)(ii);
  • $562.00 in attorney’s fees;
  • $400.00 in costs; and
  • 66% post-judgment interest.

Many times in litigation, judges award the entire amount sought in the event of a default judgment, but the Judge in this case took the time to parse out damages under the statutes.

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Richard N. Bell of McCordsville, Indiana filed a copyright infringement suit in the Southern District of Indiana alleging that David N. Powell, the executive director of the Indiana Prosecuting Attorneys Council (“IPAC”) infringed the “Indianapolis Nighttime Photo” ofBell-v-Powell-BlogPhoto-300x63 Richard Bell by using the photograph in a Spring Conference Brochure for the Midwest Regional Network for Intervention with Sex Offenders (“MRNISO”).  Last week the Southern District of Indiana District Judge Tanya Walton Pratt denied Bell’s Motion for Summary Judgment and granted Powell’s and MRNISO’s Cross-Motions for Summary Judgment in the case.
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Design Basics, LLC, Plan Pros, Inc. and Prime Designs, all of Omaha, Nebraska, filed suit in the Southern District of Indiana alleging that Kerstiens Homes & Designs, Inc., T-Kerstiens Homes Corp., Kerstiens Realty, Inc., Kerstiens Management Corp., Kerstiens Leasing Corp., Kerstiens Holding Corp., and Kerstiens Development Inc. infringed multiple copyrights of the Plaintiffs.Kerstiens-BlogPhoto-1

Plan Pros is in the business of licensing home designs to builders through Plaintiff Design Basics and other such brokers. Design Basics also designs their own home designs and licenses these as construction drawings that can be modified to fit the customer’s needs. Design Basics has published and distributed almost 200 home catalogs and other publications with their copyrighted home designs. For the seven home designs at issue in this case, Design Basics earned $25,000.00 in licensing fees from 116 licenses since 2009.

The Defendants filed summary judgment motions asserting that they were not in the business of building homes or creating house plans for the management and holding companies and that the Plaintiffs’ evidence did not support the elements of a copyright claim for the design and building companies. Further, the home and building companies asserted that they independently created the designs and the Plaintiffs did not show that they own the registrations for the copyrights at issue.

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Fort Wayne, Indiana – Attorneys for Plaintiff, Vera Bradley Designs, Inc., of Roanoke, Indiana filed suit in theDenny-BlogPhoto-300x64 Northern District of Indiana alleging that Defendant, Austin Devin 2 Denny Boys, LLC,  infringed multiple trademarks of the Plaintiff. Overhauser Law Offices, LLC represented the Defendant Austin Devin 2 Denny Boys LLC and Darlene Nicholas, who filed a Motion to Dismiss for improper venue and prevailed on July 30, 2018.

Plaintiff currently holds more than 900 copyright registrations, 35 federal trademark registrations, and has 17 pending federal trademark applications. The Plaintiff alleged in its complaint that the Defendants operate eBay accounts that they use to sell counterfeit Vera Bradley items and these acts infringe Vera Bradley’s trademarks and copyrights. All Defendants were sent cease and desist letters on behalf of the Plaintiff via counsel on July 26, 2017. On August 1, 2017, all Defendants party to the Motion to Dismiss responded through counsel and agreed to stop selling the counterfeit items, however, the Plaintiff alleged they did not cease their activities and filed suit.

The Defendants moved to dismiss Vera Bradley’s Complaint and claimed that because a substantial part of the events leading to the Plaintiff’s claims did not occur in the Northern District of Indiana, venue was improper. Further, Defendant Nicholas, claimed that the Court did not have personal jurisdiction over her. The Plaintiff countered that there were five specific instances in which the counterfeit merchandise was purchased by its employees within the Northern District of Indiana from the Defendants. They also claimed that venue was proper because they suffered harm in the District. As to Defendant Nicholas, the Court held that the Plaintiff did not give any persuasive argument as to how the Northern or Southern District Courts of Indiana could have general or specific personal jurisdiction over her in this case as she resides in Florida. Therefore, the Court was unable to transfer the case to the Southern District of Indiana, which may have been a proper venue for the other Defendants involved.

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Indianapolis, Indiana – Attorneys for Plaintiff, Eli Lilly and Company of Indianapolis, Indiana filed suit in the Southern District of Indiana alleging that Defendants, Dr. Reddy’s Laboratories, LTD. of Hyderabad, Telagana, India, and Dr. Reddy’s Laboratories, Inc,. a NewLilly-v-Reddy-BlogPhoto3-181x300 Jersey corporation, infringed its rights in U.S. Patent No. 7,772,209 (“the ‘209 Patent”).

The ‘209 Patent at issue here is a method patent for administering pemetrexed disodium, a chemotherapy drug, with vitamins, the combination of which is marketed as ALITMA® by Lilly. This invention helps to solve the toxicity issue in chemotherapy patients being treated with pemetrexed. The particular regimen of vitamin  and folic acid are important for the pretreatment of these patients. As of December 2015, Dr. Reddy’s informed Lilly that it had submitted a FDA New Drug Application for a product that would be marketed as a competing product to ALITMA®.

The first issue the Court had to decide was whether Lilly was barred from asserting the doctrine of equivalents under prosecution history estoppel. The Court held that Lilly had not surrendered the equivalent in question because their decision to use the choice pemetrexed salt was tangential to the reasons for the amendment. The choice to narrow was simply to overcome a rejection in view of a prior art article about a different antifolate, methotrexate.

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Eli Lilly & Company and its subsidiary, Elanco US Inc., both of Greenfield, Indiana, filed suit in the Eastern District of Wisconsin alleging that Arla Foods, Inc. USA of Denmark, and Arla Foods Production LLC a Delaware Corporation used false advertising and unfair businessLilly-v-Arla-BlogPhoto-233x300 practices in regards to Arla brand cheeses.

In 2017, Arla Foods launched a $30 million advertising campaign focused on expanding its cheese sales in the U.S. These advertisements included ads featuring a seven-year-old girl describing recombinant bovine somatotropin (“rbST”), an artificial growth hormone used to treat cows, as a type of monster. The ads implied that milk from cows that were treated with rbST was unwholesome and unnatural, therefore not good for your family.

Elanco makes the only FDA-approved rbST supplement, marketed under the name Posilac®. After the Arla campaign launched, Elanco filed suit alleging that Arla was in violation of the Lanham Act and simultaneously moved for a preliminary injunction with supporting copies of ads, evidence that a major cheese distributor decreased its purchasing of rbST in response to the ad campaign, and scientific literature pertaining to rbST’s safety. The district judge issued the requested injunction and later modified the injunction to cure technical deficiencies.

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Indianapolis, Indiana  – Stone Basket Innovations, LLC of Austin, Texas, filed a patent infringement lawsuit in the Eastern District of Texas which was transferred to the Southern District of Indiana alleging that Cook Medical, LLC of Bloomington, Indiana, infringed Patent No. 6,551,327 (“‘327 Patent”), Endoscopic Stone Extraction Device with Improved Basket, issued by the US Patent Office.Stonebasket-BlogPhoto-300x204

The initial Complaint for this case was filed on April 8, 2015. Defendant served their invalidity contentions in October 2015 and deposed the ‘327 patent’s inventor in January of 2016. During the deposition, the inventor stated in regards to an addition to overcome an examiner’s rejection, “I realize there is nothing novel about it.” Defendant then petitioned the U.S. Patent and Trademark Office for inter partes review (IPR) of all the claims. The District Court case was stayed pending the outcome of the petition for an IPR based off a joint motion.

After the IPR was instituted in September 2016, Plaintiff offered to license the ‘327 patent to Defendant for $150,000.00. Negotiations fell through and the settlement did not occur. Plaintiff then filed a motion requesting an adverse judgment in the IPR proceeding in December 2016 and moved to dismiss the District Court case with prejudice, both of which were granted.

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Venice-BlogPhoto-208x300Indiana – Attorneys for Plaintiff, Venice, P.I. had filed suit in the Northern District of Indiana alleging that many anonymous Defendants, as listed below, infringed the Plaintiff’s copyright:

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New Jersey – In February of 2005, Attorneys for Plaintiff, Howmedica Osteonics Corp., of Mahwah, New Jersey filed suit in the District Court of New Jersey alleging that Defendants, Zimmer, Inc. of Warsaw, Indiana, Centerpulse Orthopedics, Inc. of Austin, Texas, and Smith & Nephew, Inc. of Memphis, Tennessee infringed itsZimmer-BlogPhoto-300x179 rights in United States Patent No. 6,174,934 (“the ‘934 Patent”) for “Non-oxidizing Polymeric Medical Implant”, United States Patent No. 6,372,814 (“the ‘814 Patent”) for “Non-oxidizing Polymeric Medical Implant”, United States Patent No. 6,664,308 (“the 308 Patent”) for “Non-oxidizing Polymeric Medical Implant”, and United States Patent No. 6,818,020 (“the ‘020 Patent”) for “Non-oxidizing Polymeric Medical Implant”.  Plaintiff sought judgment for damages including interest and costs, treble damages, expenses, and attorneys’ fees.

Plaintiff is a corporation that develops, manufactures, and distributes orthopedic products, generally used in hip and knee procedures and other bone replacement procedures. Defendant is a corporation based in Warsaw, Indiana, that also focuses on products for joint and extremity replacements.

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