Articles Posted in New Litigation

South Bend, Indiana – Attorneys for Plaintiff, Zimmer, Inc. (“Zimmer”) of Warsaw, Indiana, filed suit in the Northern District of Indiana alleging that Defendants, Zimmer MedizinSystems of Irvine, California and Zimmer Elektromedizin GmbH, of Neu-Ulm, Germany, infringed its rights for multiple trademarks, as seen below:

 

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Zimmer is seeking a permanent injunction, damages, costs, and attorneys’ fees.

According to the complaint, Zimmer is a globally trusted brand for its musculoskeletal care and has utilized the mark ZIMMER in connection with its musculoskeletal goods and services since 1927. Zimmer claims it began using the “Z” logo by 2004 and consumers have come to associate the “Z” logo with Zimmer goods and services including those services for sports medicine and podiatry. Zimmer alleges it has a great amount of commercial success and its annual sales are in the billions, with multiple millions of dollars being used for advertising and promotions each year.

Zimmer claims Defendants have offered goods and services relating to cosmetics and aesthetics applications for years, with which Zimmer had no issue. According to the complaint, the issues began when Defendants began using “Zimmer” “Zimmer MedizinSystems” and “Zimmer MedizinSysteme” (the “Unauthorized Marks”) for the treatment of sports and podiatry injuries. Zimmer alleges Defendants have also used a “Z” logo to promote and advertise their goods and services.

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Saeilo-BlogPhoto-300x92Indianapolis, Indiana – Attorneys for Plaintiff, Saeilo Enterprises, Inc. (“Saeilo”) of Greeley, Pennsylvania, filed suit in the Southern District of Indiana alleging that Defendants, Salient Arms International, Inc. and Archon Firearms, Inc., both of Las Vegas, Nevada, infringed its rights in its United States Trademark Registration for ISRAEL MILITARY INDUSTRIES and the design of the Desert Eagle (the “Registered Marks”). Saeilo is seeking injunctive relief, statutory damages, and attorneys’ fees.

Saeilo claims it owns federal trademarks for ISRAEL MILITARY INDUSTRIES and the name, shape, and design of the Desert Eagle. Saeilo further claims its Desert Eagle design is world famous and therefore it has common law trademark rights in the Desert Eagle shape and design. According to the complaint, Saeilo generates significant revenue from licensing its trademarks and designs.

The complaint alleges Defendants manufacture and sell miniature and full-size firearms. Saeilo alleges Defendants displayed for sale and sold a miniature Desert Eagle handgun while attending the Shot Show in Las Vegas, Nevada. Subsequently, it is alleged Defendants advertised the miniature Desert Eagle on their website. Saeilo is seeking damages for trademark infringement as it claims Defendants have violated 15 U.S.C. §§ 1114(1) and 1125(a) and (c).

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Indianapolis, Indiana – Attorneys for Plaintiff, Wyliepalooza Ice Cream Emporium, LLC (“Wyliepalooza”) of Indianapolis, Indiana, filed suit in the Southern District of Indiana alleging that Defendants, B.A.M. Sweets, LLC d/b/a Wylie’s of Brownsburg, Indiana, Amanda R. Johnson, and Stephen B. Johnson infringed multiple common law trademarks utilized by Wyliepalooza. Wyliepalooza is seeking preliminary and permanent injunctions, profits, actual damages, costs and attorney’s fees, investigatory fees, and any further relief the court deems appropriate.Untitled

According to the Complaint, Wyliepalooza opened its ice cream shops in Indianapolis in 2013 and began operating its ice cream truck in Indianapolis since May 2014. Wyliepalooza claims its common law trademarks include “WYLIE, WYLIEPALOOZA, WYLIEPALOOZA ICE CREAM EMPORIUM and WYLIEPALOOZA ICE CREAM TRUCK” (collectively, the “Wyliepalooza Trademarks”). Wyliepalooza claims its trademarks are immediately identifying within Indianapolis as it has utilized the Wyliepalooza Trademarks throughout the area to advertise and promote its goods and services.

Wyliepalooza claims Defendants, Amanda Johnson and Stephen Johnson (the “Johnsons”), entered into an asset purchase agreement for Wyliepalooza’s ice cream shop in Brownsburg, Indiana in December 2016. With this agreement, Wyliepalooza alleges the assets sold to the Johnsons did not include the Wyliepalooza Trademarks, but gave them a limited right to use “Wyliepalooza Ice Cream Emporium Brownsburg” at that specific location. Wyliepalooza further claims that the agreement had a clause giving Wyliepalooza the right to revoke the limited use of the name if the Brownsburg location received twenty bad reviews in one quarter or the Johnsons operated the business not within the spirit of the Wyliepalooza business model. According to the Complaint, the agreement was intended to be paid off within three years at which time the Johnsons would change the name of the location to “BAM Sweets.”

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Indianapolis, Indiana – Attorneys for Plaintiffs, Broadcast Music, Inc. of New York, New York, UniversalBMI2 Millhouse Music, Combine Music Corp., Rondor Music International, Inc. d/b/a Irving Music, Dandelion Music Co., Groper Music, Rhythm Wrangler Music, Songs of Universal, Inc., Get Loose Music, Inc., Tremonti Stapp Music, Reservoir Media Management Inc. d/b/a Reservoir 416 a/k/a Reservoir One America, Barbara Nicks Music, and Concord Music Group, Inc. d/b/a Jondora Music filed suit in the Southern District of Indiana alleging that Defendants, Dman Incorporated d/b/a The Grove Sports Bar & Eatery, James D. Pettigrew, and Deann Hensley all of Beech Grove, Indiana infringed its rights in many United States Copyright Registrations of musical compositions as stated below.

Musical Composition

Registration and Date of Registration
Beat It PAu 456-334, PA 158-771, November 16, 1982, December 27, 1982
Don’t Tell My Heart a/k/a Achy Breaky Heart PA 534-864, July 29, 1991
Me and Bobby McGee Ep 260746, July 18, 1969
Seven Bridges Road Eu 106284, PA 104-190, March 21, 1969, April 13, 1981
She’s Some Kind of Wonderful a/k/a Some Kind of Wonderful Ep 232189, June 5, 1967
Trashy Women PAu 1 150 124, October 17, 1988
What’s Your Name Eu 853395, PA 13-433, December 7, 1977, July 3, 1978
My Own Prison PA 966-903, October 4, 1999
Silver Springs RE 905-601, Eu 713078, December 10, 2004, August 31, 1976
Proud Mary EU 91333, Ep 260526, December 27, 1968, July 11, 1969
Paradise Eu 785460, PA 13-430, May 13, 1977, September 18, 1978

Plaintiffs are seeking statutory damages, cost, attorneys’ fees, and any other relief the Court deems appropriate.

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Hammond, Indiana – Attorneys for Plaintiff, New Berry, Inc., d/b/a Berry Metal Company (“New Berry”) of Harmony, Pennsylvania filed suit in the Northern District of Indiana alleging that Defendants, Todd G. Smith (“Smith”) of Grove City, Pennsylvania, and Allan J. MacRae (“MacRae”), and MacRae Technologies, Inc. blogphoto-194x300(“MacRae Technologies”), both of Hayward, California, infringed its rights in United States Patent No. 10,222,124 (the “‘124 Patent”) for “Stave with External Manifold” and United States Patent No. 9,121,076 (the “‘076 Patent”) for “Stave and Brick Constrictions Having Refactory Wear Monitors and in Process Thermocouples.” New Berry is seeking actual, compensatory, exemplary, and punitive damages, pre and post judgment interest, and attorneys’ fees.

According to the complaint, New Berry is the owner and assignee of both the ‘124 Patent, which was filed February 1, 2013 and issued on March 5, 2019, and the ‘076 Patent, which issued on September 1, 2015. New Berry claims that Smith signed an Employment Agreement with New Berry in 1996, which among other things assigned all of Smith’s inventions during his employment to New Berry and prohibited Smith from using or disclosing any trade secrets that pertain to New Berry’s products and services. Smith is listed as the inventor of the ‘124 Patent and a co-inventor of the ‘076 Patent.

New Berry claims that Smith, who left New Berry in 2015, is collaborating with MacRae and MacRae Technologies and has shared New Berry’s trade secrets with them. MacRae filed a patent application November 16, 2017 that issued as U.S. Patent No. 9,963,754 (the “’754 Patent”) on May 8, 2018. The complaint alleges MacRae assigned the ‘754 Patent to MacRae Technologies on March 6, 2019. New Berry claims that the “‘124 Patent reads on the staves comprising center manifold technology described and claimed in the ‘754 Patent.”

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Indianapolis, Indiana – Attorneys for Plaintiff, Trade Design Studio LLC (“TDS”) of Indianapolis,Photo2 Indiana filed suit in the Southern District of Indiana alleging that Defendants, 1824 Carrollton LLC of Fishers, Indiana, T.A.K.E 3 Investments LLC of Camby, Indiana, and Tena Allen of Camby, Indiana, infringed its rights in United States Copyright Registration No. VA 2-142-029. Plaintiff is seeking judgment, damages, reasonable attorney’s fees, and any other appropriate relief.

According to the complaint, TDS is a residential architectural design firm that has designed homes for clients primarily in Herron Morton Place, Fall Creek Place, and Kennedy King neighborhoods in downtown Indianapolis since 2006. TDS claims that no two of its homes are exactly alike. TDS alleges it drafted technical drawings (the “Technical Drawings”) for a new home to be built at 2134 N. New Jersey Street, Indianapolis, Indiana in 2017 (the “TDS Home”). According to TDS, the home was completed in April 2018 and sold for $700,000 in May 2018.

After the home sold, TDS applied for Certificates of Copyright Registration for the Technical Drawings, Registration No. VAu 1-350-598, and the Architectural Work, Registration No. VA 2-142-029. TDS claims they were informed of a home being built at 1824 Carrollton Avenue (the “Carrollton Home”) in the Kennedy King Neighborhood that was very similar to the TDS Home around February 28, 2019. Once TDS accessed and reviewed the construction permits and drawings for the Carrollton Home, it claims they were virtually identical to those for the TDS Home.

According to the publicly accessible information TDS found, it believes Tena Allen and T.A.K.E. 3 Investments applied for the construction permits and submitted the technical drawings for the Carrollton Home. Further, TDS believes 1824 Carrollton LLC is the current owner of the property for the Carrollton Home. TDS alleges it sent Defendants a cease and desist letter on March 28, 2019 and after a short suspension of construction to explore negotiations, Defendants resumed construction on or about April 8, 2019.

TDS is seeking damages for copyright infringement, conversion, and criminal conversion pursuant to the Indiana Crime Victims Recovery Act.

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Judge Cale J. Bradford of the Indiana Court of Appeals issued the Opinion in the case of Heraeus Medical, LLC, Devin Childers, Robert Kolbe (“Kolbe”), James “Worth” Burns, Paul Cruz, and Kyle Kolbe (collectively “Appellants-Defendants”) versus Zimmer, Inc., d/b/a Zimmer Biomet, and Zimmer US, Inc. (collectively “Appellees-Plaintiffs”). The Appellants-Defendants appealed a preliminary injunction issued by the trial court in which Kolbe was ordered to abide by his non-compete and non-solicitation agreement with Zimmer and Heraeus MedicalHeraeus-BlogPhoto-204x300 was ordered to not disclose or use confidential information received from Heraeus GmbH or employ or engage the individual Appellants-Defendants. The Indiana Court of Appeals affirmed in part, reversed in part, and remanded the case with further instructions.

Zimmer Surgical, a subsidiary of Zimmer, Inc. entered into a Distribution Agreement with Heraeus Medical GmbH in January 2012 pursuant to which Heraeus Medical GmbH granted to Zimmer Surgical an exclusive license to distribute, promote, market, and sell specific bone cements (“Palacos”) it manufactured. Zimmer has since allegedly developed its own line of bone cement. On January 3, 2018, within the final year of the initial term of the Distribution Agreement, Heraeus Medical GmbH elected to make the Distribution Agreement non-exclusive for the final year. Heraeus Medical GmbH had, by that point, set up a direct sales force through Heraeus Medical, LLC, which had hired several former Zimmer Biomet employees including the individual Appellants-Defendants in this case.

Appellees-Plaintiffs filed their complaint against the Appellants-Defendants on February 23, 2018 for “(1) breach of contract against the individual defendants; (2) tortious interference with contracts against Heraeus; and (3) and tortious interference with business relationships, civil conspiracy, and unfair competition against all defendants.” Preliminary injunctions to stop violations of the individual non-compete and non-solicitation agreements were also sought at that time.

Indianapolis, Indiana – Attorney Richard Bell of McCordsville, Indiana filed suit in the Southern District of Indiana alleging that Cision US, Inc. (“Cision”), conducts business in the district, and infringed his rights in Cision-BlogPhoto2-300x135United States Copyright No. VA0001785115, the “Indianapolis Photo”. Bell is seeking actual and statutory damages, costs, attorneys’ fees, and any other relief as is just and proper.

Bell, who has filed numerous copyright infringement lawsuits over the Indianapolis Photo, claims Cision published the Indianapolis Photo on its website without his permission beginning in or around 2018. The Complaint asserts Plaintiff’s claim that Cision took or downloaded the Indianapolis Photo without his permission prior to publishing the photo on its website. The Complaint further alleges Cision falsely represented that it owned the rights to publish the Indianapolis Photo by adding a copyright notice to the bottom of each page of its website.

Per the Complaint, Cision has not agreed to be enjoined from using the Indianapolis Photo. Plaintiff states Cision refuses to pay for the unauthorized use of the Indianapolis Photo and that it has allowed third parties to access its website and the Indianapolis Photo. As such, Bell is seeking damages for copyright infringement and vicarious liability for each copy downloaded by a third-party user.

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Kosciusko County, Indiana – Attorneys for Plaintiff, Rick C. Sasso, M.D. (“Dr. Sasso”) of Carmel, Indiana, originally filed suit in the Kosciusko County Superior Court in Indiana alleging that Defendants, Warsaw Orthopedic, Inc., Medtronic, PLC, and Medtronic Sofamor Danek, Inc., haveSassoBlogPhoto-266x300 denied him and his accounting firm access to their sales ledger per two separate agreements. Dr. Sasso is seeking an injunction ordering Defendants to provide full access to its sales ledger to determine royalties owed to Dr. Sasso under two separate agreements. As of April 12, 2019, Defendants filed a Notice of Removal to remove the case to the U.S. District Court for the Northern District of Indiana.

Per the complaint, Dr. Sasso is a board-certified orthopedic surgeon specializing in the treatment of the spine. Dr. Sasso claims the Defendants, together, are top manufacturers for spine implants. It is claimed Dr. Sasso entered into two separate agreements with Sofamor Danek Holding, Inc., which was later acquired by Warsaw Orthopedic through a merger. The first alleged agreement, is the 1999 Screw Delivery System Agreement on November 18, 1999 (the “1999 Agreement”). The second alleged agreement is the 2001 Vertex Agreement, entered into on July 26, 2001 (the “2001 Agreement”). Dr. Sasso claims that these agreements have clauses that enable him to “inspect, examine, audit, and copy [Defendants’] records” relating to the agreements once per calendar year.

In August 2013, Dr. Sasso filed a different suit against the Defendants for unpaid royalties under both the 1999 and 2001 Agreements. Dr. Sasso was granted royalties in the amount of $79,794,721.00 for the 1999 Agreement and $32,657,548.00 for the 2001 Agreement, which has been appealed by Defendants. According to the complaint, the 1999 Agreement requires the Defendants to continue paying royalties until the expiration of U.S. Patent No. 6,287,313 and U.S. Patent No. 6,562,046, on or about November 23, 2019. Dr. Sasso also claims the 2001 Agreement requires Defendants to pay royalties to him so long as “the Medical Device is covered by a valid claim of an issued patent arising out of the Intellectual Property Rights.”

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Indianapolis, Indiana – Attorney Richard Bell of McCordsville, Indiana filed suit in theBlogPhoto-300x169 Southern District of Indiana alleging that Marriott, LLC, who conducts business in the district, infringed his rights in United States Copyright No. VA0001785115, the “Indianapolis Photo”.  Bell is seeking actual and statutory damages, costs, attorneys’ fees, and any other relief as is just and proper.

Bell claims the Indianapolis Photo is an original work that was registered with the U.S. Copyright Office on August 4, 2011. He further claims that because of his use of the Indianapolis Photo to advertise his photography business, it can be identified by the public as being created by Bell. Since the registration of the Indianapolis Photo, Bell has filed many lawsuits for copyright infringement.

According to the complaint, Marriott used the Indianapolis Photo on its website to draw or attract prospective customers. Bell claims he discovered Marriott’s use of the Indianapolis Photo in March 2018 and that the photo was visible on Marriott’s website on April 6, 2018. Bell is seeking damages for copyright infringement including vicarious liability damages for each downloaded copy of the Indianapolis Photo from Marriott’s website by third-party users.

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