Articles Posted in Trade Dress

Evansville, Indiana – Attorneys for Plaintiff, SCLC, Inc. of Evansville, Indiana filed suit in the Southern District of Indiana alleging that Defendants, Marie Kettering of Trenton, New Jersey, and Lanny Tyndall of Enfield, Gansu, Canada, infringed the rights of SCLC.  Plaintiff is seblogphoto-1eking a nationwide injunction, compensatory damages, and attorneys’ fees.

Plaintiff owns the rights to the “Shoe Carnival” trademark, and owns and operates The complaint alleges that the Defendants operate shoe sale websites that infringe upon the trade dress of the Shoe Carnival website, and infringe upon the Shoe Carnival trademark by displaying the registered mark on the websites. Specifically, the Defendants’ websites mimic the “look and feel” of Shoe Carnival’s website, including the layouts, placement of photos, borders, frames, colors, and overall impression. Further, Plaintiff alleges that the offending websites used the “Shoe Carnival” registered mark without permission in an effort to generate sales, which Plaintiff claims has caused consumer confusion.

Practice Tip: Although the Plaintiff alleges personal jurisdiction over the Defendants in the complaint, they do not allege any specific facts, such as infringing sales, which occurred in Indiana. This may cause issues for the Plaintiff in trying to secure personal jurisdiction over the Defendant. In a similar case in 2014, the United States Court of Appeals for the Seventh Circuit ruled that an out-of-state business accused of trademark infringement did not have sufficient contacts, arising out of the accused activity, with Indiana to subject it to personal jurisdiction in the state.

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Indianapolis, Indiana – Attorneys for Plaintiff, AM General LLC, of South Bend, Indiana filed suit in the Southern District of IndianaBlogPhoto-300x110 alleging that Defendants, Activision Blizzard, Inc., and Activision Publishing, Inc., both of Santa Monica, California and Major League Gaming Corp., of New York, New York; infringed its rights for the Trademark Registrations of HUMVEE and HMMWV and the trade dress of its HUMVEE brand vehicles. Plaintiff is seeking compensatory damages, punitive damages, corrective advertising, attorneys’ fees and costs, and prejudgment and post judgment interest.

Plaintiff alleges that Defendant’s series of Call of Duty videogames have consistently infringed by incorporating and allowing players to control vehicles in-game that, allegedly, infringe on Plaintiff’s real-life protected marks. In the complaint, Plaintiff points to various in-game levels that require the player to control a vehicle that allegedly copies the registered trade dress elements, and other moments in the game where the player sees or interacts with vehicles resembling Humvees. Plaintiff also notes in-game dialogue and marks written on the vehicles that mention “Humvee” specifically.

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Indianapolis, Indiana – Attorneys for Plaintiff, Klipsch Group, Inc. of Indianapolis, Indiana filed suit in the Southern District of Indiana alleging that Defendant, Shenzhen Paiaudio Electronics Co., Ltd of Guangdong, 2017-11-08-BlogPhoto-224x300China infringed on the U.S. Patent No. D603,844 (the ‘844 patent), titled “Headphone,” and violated Klipsch headphones’ trade dress. Plaintiff is seeking judgment, a permanent injunction, lost profits, damages, pre-judgement and post-judgment interest, attorneys’ fees, and all relief just and proper.

Plaintiff Klipsch is an Indianapolis-based audio company that produces headphones, earphones, and speakers for home and commercial use. China-based Defendant Paiaudio specializes in producing high-end earphones. The subject of this litigation is a type of small earphone patented by Klipsch, specifically their “X12i” model. Plaintiff alleges that Defendant’s “π 3.14 Audio” model is virtually identical to the X12i, infringes on the patent, and violates the Lanham Act via trade dress confusion.

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Terre Haute, Indiana – Dshay Towles was charged with theft and “offense against intellectual property” for selling on eBay stolen copies of 2017-10-26-BlogPhoto-231x300Call of Duty: WWII, which is scheduled to be released on November 3, 2017.

According to FOX59, the games were stolen from the Sony DADC facility in Terre Haute, where the company manufactures and distributes Blu-Rays, CDs, and DVDs. The games were later found on eBay, having been posted by Towles for roughly $45 per copy.

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HH-Inc-300x183Indianapolis, Indiana – Her Imports f/k/a EZJR, Inc. sued in the Southern District of Indiana alleging trademark infringement, trademark dilution and trade dress infringement.  The lawsuit names Her Hair, Inc., an Indianapolis hair-extension merchant, as Defendant.

Plaintiff markets and sells wigs, hairpieces and hair accessories.  It claims ownership of two trademarks, U.S. Trademark Registration Nos. 4,631,694 for the word mark “HER IMPORTS” and 5,048,646 for “HER IMPORTS” and design.  Both trademarks have been registered with the U.S. Patent and Trademark Office.

Plaintiff contends that Defendant designed and used a similar mark, asserting that it was intentionally crafted “for the sole purposes of imitating Plaintiff’s Trademark, causing actual confusion among the general public, and attempting to pass itself off as being associated with the Her Imports brand.”  Plaintiff further states that Defendant’s trademark has caused actual customer confusion.  Defendant’s mark was registered by the U.S. Patent and Trademark Office under Reg. No. 5,144,514.


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Plaintiff further accuses Defendant of copying its “unique store interior trade dress,” comprising black and white Damask wallpaper along with red trim, in Defendant’s store.

In this Indiana lawsuit, filed by trademark attorneys for Plaintiff, the following claims are made:

  • Count I: Mark Cancellation 15 U.S.C. § 1064
  • Count II: Trade Dress Infringement 15 U.S.C. § 1125(a) (as to the Store Interior)
  • Count III: Dilution by Blurring — 15 U.S.C. § 1125(c) (as to Plaintiff’s Trademark)
  • Count IV: Dilution by Blurring — 15 U.S.C. § 1125(c) (as to Plaintiff’s Store Interior Trade Dress)
  • Count IV: [sic] Recovery of Profits, Damages, Costs, and Attorneys’ Fees Pursuant to 15 U.S.C. § 1117(a)
  • Count VI: Destruction of Infringing Articles 15 U.S.C. § 1118
  • Count VII: Injunctive Relief 15 U.S.C. § 1125(c)(1)

Plaintiff seeks, inter alia, injunctive relief, the cancellation of Defendant’s trademark, damages, attorneys’ fees and costs.

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South Bend, IndianaJudge Robert L. Miller, Jr. of the Northern District of Indiana dismissed claims concerning trade dress infringement.

In this Indiana trademark lawsuit, Forest River, Inc. of Elkhart, Indiana sued Winnebago Industries, Inc. of Forest City, Iowa and its subsidiary Winnebago of Indiana, LLC alleging trademark infringement, trade dress infringement, unfair competition, false designation of origin, and false and misleading representations.

Overhauser Law Offices, LLC filed a partial motion to dismiss with the court, arguing that Forest River had neither sufficiently identified the features that constituted the claimed trade dress nor provided any factual support for its assertion that such features were non-functional.

The court noted that “to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678.  The claim is deemed plausible if “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.


In this litigation, such a showing required that Forest River define its trade dress.  It must also plead sufficient facts to show that the claimed trade dress is nonfunctional, has acquired secondary meaning and that a likelihood of confusion exists between its trade dress and Winnebago’s trade dress.

The court agreed with Winnebago, concluding that Plaintiff had relied on “conclusory and meaningless” assertions in its pleadings. Consequently, it granted Winnebago’s motion and dismissed without prejudice Forest River’s claims concerning trade dress infringement under the Lanham Act, 15 U.S.C. §1125(a) as well as similar claims made under common law.

Overhauser Law Offices represented Winnebago in obtaining this successful order dismissing the trade dress claims.

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Chicago, Illinois – Arlington Specialties, Inc. of Elk Grove Village, Illinois appealed the summary judgment granted by the U.S. District Court of Northern Illinois, Eastern Division in favor of Urban Aid, Inc. of Los Angeles, California.

The plaintiff’s and defendant’s bags are shown on the last page:

The Seventh Circuit does not issue trade dress opinions very often, but it issued one January 27, 2017.  It is especially helpful because it sums up the state of trade dress law in the Circuit.

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.


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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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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