Trade Dress

March 28, 2023

Fireworks Company Takes On Competitors For Stealing Their Spark

Muncie, Indiana – The Plaintiff, 1.4g Holdings, LLC (“1.4g”), filed suit against North Central Industries, Great Grizzly, Inc. and R. Brown, Inc. for Trademark and Trade Dress Infringement, as well as False Designation of Origin under 15 U.S.C. § 1125 and Misappropriation of Commercial Properties Under Indiana Common Law.

1.4g Holdings, LLC is a company that produces and sells consumer fireworks under the brand name ‘76 Pro Line. Per their website, ’76 Pro Line’s mission is to provide high quality 1.54g fireworks for hobbyists, enthusiasts, professional shooters, and display companies. ’76 Pro Line items have been featured in displays and product demonstrations at several annual events including Western Winter Blast, Pyrotechnics Guild International, Cobra-Con, and the National Fireworks Association Expo.

North Central Industries, Great Grizzly, Inc. and R. Brown, Inc. (“NCI”) are companies that also produce and sell consumer fireworks. According to its website, NCI is a second-generation, family-owned direct importer and wholesaler of customer 1.4G fireworks. With over 68 years of experience, they serve every pyro need with two distribution points in Muncie, Indiana and Forest Park, Georgia.

December 5, 2022

RV Manufacturer Sues Former Employees for Conversion & Trade Dress Infringement

By Overhauser Law Offices, LLC

Elkhart, Indiana – Phoenix USA RV, Inc., (“Phoenix USA”) founded in 1996 designs, builds, markets, and sells custom motor homes to customers through authorized retailers across the United States.

In 2017, Phoenix USA sold to the current owners Chuck and Tina Cooper. Many of the employees became unhappy with the direction of the company under new ownership. They left the company and started Hoosier Custom Cruisers LLC.

According to the complaint, the Defendants, used trade secrets and other information to design and build a directly competing product.

August 13, 2021

Michigan City Resident Sues Numerous Retailers for Alleged Patent Infringement

By Overhauser Law Offices, LLC

Hammond, Indiana – Apparently, James E. Cross, the Plaintiff is the owner of three design patents for convertible t-shirt designs, U.S. Patent Nos. D/580,633, D/581,136, and D/341,471 (collectively, the “Patents in Suit”). Notably, it appears the ‘633 and ‘136 Patents are set to expire in November 2022, while the ‘471 Patent expired in November 2007 since the term for a design patent filed prior to May 13, 2015 is 14 years.

Cross claims Defendants, Dick’s Sporting Goods Inc., Walmart Inc., Kohl’s Inc., and Amazon, Inc. (collectively “Defendants”), have actively induced and contributorily infringed upon the Patents in Suit and his trade dress by importing, offering for sale, and/or selling t-shirts with his ornamental designs without his permission.

While the pro se Complaint is fairly short, Cross attached numerous exhibits not discussed in the Complaint including an order dismissing Cross’ case against Meijer, Inc. due to settlement and a Patent Trial and Appeal Board decision regarding the ‘471 Patent. Further attached are black and white photos of zip-up bike jerseys allegedly being sold by Defendants.

Cross is seeking an accounting of damages, costs, expenses, and reasonable attorney’s fees pursuant to 35 U.S.C. § 285.

Practice Tip: The current design patent term, if filed on or after May 13, 2015 is 15 years from the date of grant. 35 U.S.C. § 173.

August 9, 2021

Monster Energy Co. Sues Fitness Company for Alleged Trademark Infringement

By Overhauser Law Offices, LLC

Hammond, Indiana – Monster Energy Company (“Monster”), the Plaintiff, claims to be a nationwide leader in marketing and selling ready-to-drink beverages. Apparently, Monster launched its MONSTER ENERGY® drink brand including its ® mark (the “Claw Icon”) in 2002. Monster also claims it has used a distinctive trade dress for packaging, clothing, bags, sports gear, helmets, and promotional materials that use the Claw Icon in connection with the colors black and green (the “Monster Trade Dress”). Apparently realizing the importance of its brand, Monster owns at least fourteen federal trademark registrations that include the Claw Icon in various classes of goods and services (the “Asserted Marks”).

August 6, 2021

Energy Beverages Sued Indiana Automotive Shop for Alleged Trademark Infringement

By Overhauser Law Offices, LLC

Evansville, Indiana – In 2004, the Coca-Cola Company launched its Full Throttle® energy drink brand, which was later apparently acquired by Monster Beverage Company (“Monster”) in 2015. Monster in turn divested the rights and title to the Full Throttle® energy drink line to its child company, Energy Beverages LLC (“Energy”), the Plaintiff. From that transaction, Energy owns multiple trademark registrations including the three at issue in this case, U.S. Registration Nos. 2,957,843, 5,562,250, and 5,722,956 (the “Energy Marks”). Energy also claims it has used a distinctive trade dress on its Full Throttle® products since 2004.

Apparently, Energy has licensed the Energy Marks and trade dress in connection with a variety of goods and services throughout the years, including sponsoring motorsports. Since 2015, Energy claims it has spent over $22.6 million dollars in promoting the Full Throttle® brand. Additionally, the retail sales of Full Throttle® products allegedly exceed 47 million cans per year, with estimated revenues of approximately $113 million per year. Therefore, Energy claims its Full Throttle® brand including the Energy Marks and trade dress have acquired great value to identify and distinguish its products and services from those of other, including association with the automotive industry.

August 4, 2021

Egglife Foods Sues Crepini, LLC for Alleged Trade Dress Infringement

By Overhauser Law Offices, LLC

South Bend, Indiana – Apparently Egglife Foods, Inc. (“Egglife”), the Plaintiff, sell ready-to-eat wraps that are made with cage-free egg whites instead of flour (“egglife egg white wraps”). Introduced in 2019, founder Peggy Johns claims to have invented egglife egg white wraps, using a now patented method (U.S. Patent No. 10,194,669). Egglife claims its egglife egg white wraps are available in over 3,500 retail locations throughout the United States and have garnered a loyal following of passionate consumers. Since 2019, Egglife has allegedly invested $5 million dollars in the Egglife brand and is on pace to reach $30 million in retail sales in 2021. According to the complaint, Egglife products have a distinct packaging including a unique combination of shapes, colors, text font, a center window, and accent elements that act as a source identifier to its consumers (the “Trade Dress”).

The Defendant, Crepini, LLC (“Crepini”), was apparently founded in 2007 with “the dream of bringing crepes into every North American household.” Crepini allegedly sold its egg white thins products in at least three different packaging styles from early 2018 through 2019. Per the Complaint, Crepini owns U.S. Trademark Registration Nos. 5,888,044 and 5,447,364 for “Egg Thins” and “Egg White Thins,” respectively. Egglife claims Crepini rebranded yet again and announced an extensive packaging overhaul including changing the name of the product to “egg wraps” on January 1, 2021.

June 21, 2021

Indianapolis Bouldering LLC Seeks Declaratory Judgment of Non-Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Apparently Indianapolis Bouldering LLC, the Plaintiff, provides bouldering facilities as part of its fitness facility. According to the Complaint, Indianapolis Bouldering intends on opening a 52,000 square foot fitness facility (“North Mass Boulder”) in May 2021 using images of rocks and natural surfaces to create an organic branding aesthetic. The Defendants, BP Holdings Company, LLC, Seattle Bouldering Project, LLC, Minneapolis Bouldering Project, LLC, and Austin Bouldering Project, LLC (“Defendants”), allegedly operate climbing gyms in Washington, Texas, and Minneapolis with colorful and geometric branding.

Indianapolis Bouldering acknowledges in the Complaint that for “a brief period of time in late 2020, one of its members used content from one of Defendant’s websites (the “Website Content”) as a placeholder text during the website design process.” It further claims the Website Content was removed after being publicly available for two weeks and was replaced. The Parties apparently exchanged multiple letters regarding the Website Content and various other intellectual property rights. According to the Complaint, Defendants continued to threaten suit to enforce their purported intellectual property rights.

Therefore, Indianapolis Bouldering is seeking a declaratory judgment that (1) the intellectual property interests asserted by Defendants are invalid and/or unenforceable; (2) it is not infringing, has not infringed, and is not liable for infringing any allegedly enforceable intellectual property interest; and (3) non-violation of alleged trade secrets of Defendants.

February 15, 2021

Makers of SPLENDA® Sue Speedway for Alleged Trade Dress Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Apparently Heartland Consumer Products LLC (“Heartland”), the Plaintiff, is the owner of the SPLENDA® brand sugar substitute sweetener, which comes in yellow packaging (the “Yellow Trade Dress”). According to the Complaint, Heartland has also used a variety of legally protected trademarks in connection with its SPLENDA® brand products.

In addition to its U.S. trademarks, and common law rights to the Yellow Trade Dress, Heartland also claims to have obtained trademark registrations for the SPLENDA® intellectual property in over 90 countries.

Heartland claims Speedway, LLC (“Speedway”), the Defendant, has “engaged in the active deception of customers through misappropriation of the Yellow Trade Dress in a manner that makes Speedway’s yellow sucralose packets easily mistakable for SPLENDA®’s yellow packets. Per the Complaint, Speedway failed “to provide sufficient cues to the consumer that the yellow sweetener packets in Speedway stores are not the leading brand sucralose-based sweetener sold by Heartland.” Therefore, Heartland claims Speedway’s actions are likely to deceive consumers into believing its sweetener provided in yellow packets is SPLENDA®.

Due to Speedway’s use of yellow packaging for sucralose, Heartland claims it has committed trade dress infringement, trademark dilution, false designation of origin, unfair competition, and false advertising pursuant to the Lanham Act, 15 U.S.C. § 1125. Heartland is seeking enhanced damages and attorneys’ fees under 15 U.S.C. § 1117 because it claims “Speedway’s actions are intentional, willful, and calculated to cause confusion, mistake or deception.” Further, Heartland is claiming common law trade dress infringement under Ind. Code § 24-2-1-15. Next, Heartland is claiming common law unfair competition. Finally, Heartland is claiming trademark dilution under Ind. Code § 24-2-1-13.5.

November 18, 2020

Frost Buddy, LLC Sued for Alleged Trade Dress Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Apparently Brumate, LLC (“Brumate”), the Plaintiff, designs and sells insulated beverage containers, including an insulated tumbler/can holder, the HOPSULATOR®, and an insulated wine bottle, the WINESULATOR®. Brumate claims to have acquired trade dress rights in its HOPSULATOR® product design (“HOPSULATOR Trade Dress”). According to the Complaint, Frost Buddy, LLC (“Frost Buddy”), the Defendant, is selling a knockoff product that incorporates the HOPSULATOR Trade Dress. Brumate also claims Frost Buddy has engaged in deceptive advertising with regard to Brumate’s HOPSULATOR® and WINESULATOR® products.

Brumate is seeking damages for trade dress infringement, false advertising, and unfair competition pursuant to 15 U.S.C. § 1125(a). Further, Brumate claims Frost Buddy committed deception in violation of I.C. § 35-43-5-3 and unfair competition under Indiana common law.

November 2, 2020

Seventh Circuit Confirms Presumptive Fees in Copyright Litigation are Not Guaranteed

By Overhauser Law Offices, LLC

Seventh Circuit Court of Appeals – The U.S. Court of Appeals for the Seventh Circuit affirmed the denial of fees for the Defendant, David Knott (“Knott”), after Plaintiff, Timothy B. O’Brien LLC (“Apple Wellness”), voluntarily dismissed all its claims with prejudice.

Originally filed in the Western District of Wisconsin, Apple Wellness alleged that Knott, a former employee of Apple Wellness started a similar, competing wellness shop. Apple Wellness sued Knott for alleged trademark, trade dress, and copyright infringement. Knott countersued for tortious interference and retaliation. The District Court found the copyright claims baseless and denied a preliminary injunction on the trademark and trade dress claims. Apple Wellness later voluntarily dismissed all its claims.

While Apple Wellness submitted a motion to dismiss without prejudice, the District Court ordered Apple Wellness to withdraw its motion or accept a dismissal with prejudice because Knott had already expended resources litigating an injunction. The District Court further noted that in its opinion, no party’s claim was strong. Apple agreed to the dismissal with prejudice and the District Court declined to exercise supplemental jurisdiction over the counterclaims. The District Court subsequently denied Knott’s motion for fees leading to this appeal only as to the fees for the copyright claims and the appeal.

The Court of Appeals found that while Apple Wellness’s copyright claims were frivolous, it appears the claims were brought in good faith. Therefore, “there were minimal concerns regarding compensation and deterrence.” Further, Knott did not have to expend a large amount of time, money, or energy defending against the copyright claims as they were quickly dismissed. After considering all of the factors, the Court of Appeals affirmed the judgment of the District Court denying Knott’s motion for fees.