Articles Posted in Trade Dress

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Indianapolis, IN – Patent lawyers for FirePASS IP Holdings and FirePASS Corporation of New York, New York filed a patent infringement lawsuit alleging Bombardier, Inc. of Montreal, Canada, and Bombardier Aerospace Corporation, of Richardson, Texas, infringed Patent Numbers RE 40,065, HYPOXIC FIRE PREVENTION AND FIRE SUPPRESSION SYSTEMS FOR COMPUTER CABINETS AND FIRE-HAZARDOUSINDUSTRIAL CONTAINERS 6,418,752, HYPOXIC FIRE PREVENTION AND FIRE SUPPRESSION SYSTEMS AND BREATHABLE FIRE EXTINGUISHING COMPOSITIONS FOR HUMAN OCCUPIED ENVIRONMENTS, Patent No. 6,314,754,FPicture.jpgHYPOXIC FIRE PREVENTION AND FIRE SUPPRESSION SYSTEMS FOR COMPUTER ROOMS AND OTHER HUMAN OCCUPIED FACILITIES, Patent No.7,207,392, METHOD OF PREVENTINGFIRE IN COMPUTER ROOM AND OTHER ENCLOSED FACILITIES  which have been issued by the US Patent Office.

The complaint alleges that Bombardier sells and offers to sell products that infringe FirePASS’s patents. Specifically, FirePASS alleges that Bombardier has a contract to sell 40 CS300 aircraft to Republic Airways of Indianapolis, valued at $3.2 billion. FirePASS alleges that the aircraft contain flammability reduction means that infringe FirePASS’s patented technology. The Federal Aviation Administration has implemented new regulation requiring additional flammability reduction means to prevent fuel tank fires in aircraft. FirePASS seeks a declaratory judgment of infringement, damages and an injunction.

Practice Tip:   According to a press release by FirePASS, the FAA adopted FirePASS’s technology and has required its use to protect fuel tanks on commercial aircraft.  In this case, FirePASS claims the patent infringement occurred either “literally or under the doctrine of equivalents.”  Apparently, FirePASS is taking the position that any new aircraft made that comply with the FAA’s new regulation would infringe FirePASS’s patents.   The Doctrine of Equivalents “allows a court to hold a party liable for patent infringement even though the infringing device or process does not fall within the literal scope of a patent claim, but nevertheless is equivalent to the claimed invention.” The legal test, articulated in Warner-Jenkinson Co. v. Hilton Davis Chem. Co. (1997), is whether the difference between the limitation in the accused device and the limitation literally recited in the patent claim is “insubstantial.”


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Indianapolis, IN – Trademark lawyers for Noble Roman’s, Inc. of Indianapolis, Indiana filed a trademark infringement suit alleging Findlay Tiffin Oil, LLC of Tipp City, Ohio and Ayman Magdaddi of Aurora, Indiana infringed Trademark Registration No. 987,069 for the mark NOBLE ROMAN’S; Trademark Registration No. 1,920,428 for the mark THE BETTER PIZZA PEOPLE; and Trademark Registration No. 1,682,308 for the mark NOBLE ROMAN’S PIZZA, which are registered with the US Trademark Office.

The complaint alleges that Findlay owns a convenience store located in Aurora, Indiana and Mr. Magdaddi operates the convenience store. The convenience store was owned by a company called Duncan Oil until February 2011, and Duncan Oil operated a Noble Roman’s franchise on-site that used various trademarked items and trade dress. The complaint alleges that Duncan Oil was an authorized franchise of Noble Roman’s until the property was sold in February 2011. Findlay and Magdaddi, however, have not reached an agreement to be authorized to operate a Noble Roman’s franchise. The complaint alleges that a Noble Roman’s employee visited the store in March 2011 and observed pizza being sold using the Noble Roman’s trade dress and menu boards. The complaint states that on April 30, 2011, Duncan Oil recovered all the Noble Roman’s trademarked items and trade dress. Noble Roman’s trademark attorneys have made claims of trademark infringement and federal unfair competition.

This case has been assigned to Judge Tanya Walton Pratt and Magistrate Judge Tim A. Baker in the Southern District of Indiana, and assigned Case No. 1:11-cv-00665-TWP-TAB.

Practice Tip: If a new owner of the franchise property wishes to continue operating the franchise, a new franchise agreement must be reached. If the new owner continues to use the franchise’s trademarked items and trade dress without authorization, a trademark infringement lawsuit may result. Noble Roman’s has been particularly aggressive in enforcing trademarks rights in franchise relationships.
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Indianapolis, IN – Trademark lawyers for Trufoods, LLC of New York filed a trademark infringement suit alleging Premier Food Services of Fishers, Indiana and its owners infringed its trademarks involving a Ritter’s Frozen Custard Shoppe franchise that Premier operated. The trademarks at issue are registration numbers 1,976,078; 2,706,642; 2,801,455; and 3,322,584 for the marks “Ritter’s Frozen Custard,” “Ritter’s Frozen Custard Taste the Difference!,” “Cubby Paws,” and “Ritter’s Frozen Custard Legendary Ice Cream” registered with the US Trademark Office.

The Ritter’s Frozen Custard franchise and its associated trademarks are owned by Trufoods. According to the complaint filed by Trufoods trademark attorneys, Premier entered a franchise agreement with Trufoods to operate a Ritter’s in Carmel, Indiana. The complaint alleges that the Ritter’s was opened initially in 2009, but that Premier did not re-open the shop this spring. Trufoods terminated the franchise agreement. Trufoods demanded that Premier return all trademarked items and trade dress and now claims that Premier has failed to do so. The complaint alleges that Premier now operates a competing business called “Coney Island Custard and Hot Dogs” in Avon, Indiana, which also alleged to be a breach of the franchise agreement. Trufoods alleges that Premier is using its trademarked items and trade dress in connection with the Coney Island Custard and Hot Dogs business. The complaint makes claims of trademark infringement, common law trademark infringement, trade dress infringement, unfair competition, and breach of contract.

This case has been assigned to Judge Jane E. Magnus-Stinsonand Magistrate Judge Tim A. Baker in the Southern District of Indiana and assigned case no. 1:11-cv-0446-JMS-TAB.

Practice Tip: When a franchise agreement terminates, typically the franchisee must promptly cease using and return all signs and other equipment containing trademarks. Failure to do so may result in a lawsuit for breach of contract as well as trademark infringement.
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 South Bend, IN – An intellectual property attorney for Garden Homes, of St. Joseph County, Indiana, filed a copyright and trade dress infringement lawsuit against Charles and Maura Weis, of Florida, and Ryan Rans, of Indiana. Charles Weis is the former head coach of the Notre Dame‘s football team. The copyrighted work is custom plans for homes and has been registered by the US Copyright Office.
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Indianapolis, IN –

A trademark attorney for Noble Roman’s, an Indianapolis-based pizza maker, has filed a trademark infringement lawsuit against Brabham Oil, a South Carolina corporation. The compliant, filed by Noble Roman’s lawyer, alleges that Brabham Oil formerly operated seven Noble Roman’s franchise locations. According to the complaint, Brabham continued to use Noble Roman’s trade dress, specifically the Warmer Wrap Trade Dress, after the franchise agreements terminated. The attorney for Noble Romans claims that Brabham Oil has violated the terms of the franchise agreements. The complaint makes claims of trademark infringement, under the Lanham Act, 15 U.S.C. § 1125(a) and the common law as well as unfair competition, citing 15 U.S.C. § 1125, and breach of the franchise contracts. Noble Romans seeks an injunction and damages. This case has been assigned to Judge Sarah Evans Barker and Magistrate Judge Debra McVicker Lynch of the Southern District of Indiana, and assigned case no. 1:11-cv-00135-SEB-DML.

Practice Tip: When a franchise agreement terminates, typically the franchisee must promptly cease using and return all signs and other equipment containing trademarks. Failure to do so may result in a lawsuit for breach of contract as well as trademark infringement. Noble Roman’s has been particularly aggressive in enforcing franchise agreements. Since 2007 it has filed the following suits in the Southern District of Indiana:

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Lafayette, IN – Trademark lawyers for Coach, Inc. of New York, NY, and Coach Services, Inc. of Jacksonville, FL filed a trademark infringement suit alleging Diggz Clothing, LLC and Lori Harth of Lafayette, IN infringed various Coach trademark registrations which are registered with the US Trademark Office. Coach had sued Diggz in March 2010, then settled the suit for $6,500, and an agreement to stop selling “Accused Products.” However, the latest suit alleges that Diggz breached the settlement agreement, and re-asserts a variety of trademark, copyright, trade dress and unfair competition related claims.

Coach files many infringement suits, and a list of their earlier suits in Indiana in 2010 is at the end of this posting.
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Indianapolis, Indiana – Patent lawyers for Draper, Inc. of Spiceland, IN, have filed a declaratory judgment lawsuit against MechoShade Systems, Inc., and Joel Berman Associates, Inc., both of Long Island City, NY. In particular, the suit seeks a ruling that Patent No. 6,164,428, titled Wrap Spring Shade Operator (“the ‘428 patent”) and issued by the U.S. Patent Office, as well as certain of the defendants’ trade dress, are invalid and not infringed.

According to the complaint, the plaintiff Draper sells window shades. The defendant Mr. Berman alleged that Draper’s brackets for mounting window shades infring the ‘428 patent and the defendants’ trade dress. The plaintiff, in turn, alleges that the ‘428 patent is invalid for failing to meet the requirements for patentability in Sections, 102, 103, and 112 of the Patent Act and that the appearance of defendants’ brackets is functional, generic, and not capable of protection as trade dress.

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Indianapolis, Indiana – Intellectual property counsel for Top Ten Imports, LLC of Indianapolis, IN, filed a trademark and copyright infringement suit against BMX Imports, L.P. of Farmers Branch, TX. Specifically, the plaintiff Top Ten alleges that the defendant has infringed Top Ten’s space heater trade dress as well as Trademark Reg. No. 3,654,284 for the mark IHEATER, registered with the U.S. Trademark Officein connection with electric space heaters, and copyrighted works protected under Application No. 1-501133071 and Application No. 1-501353066, both of which have been registered by the U.S. Copyright Officeand are directed to ornamental heater design.

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Fort Wayne, Indiana – Intellectual property lawyers for Hydraulic Marine Systems, Inc. of Deland, FL, have filed a lawsuit alleging Mid-America Foundation Supply, Inc. d/b/a Poseiden Barge Corp. of Fort Wayne, IN, has infringed copyrights and trade dress as well as violated federal and state unfair competition laws.

In the filing, the plaintiff and defendant are said to have discussed the possibility of the defendant becoming an authorized distributor of plaintiff’s barge thrusters, with no such relationship being formed and the defendant ultimately purchasing such thrusters from the plaintiff. Subsequently, the defendant is alleged to have developed its own thruster using the plaintiff’s product as a template for infringing non-functional features. It is claimed that the defendant also copied the plaintiff’s instructions, which are registered with the U.S. Copyright Office, verbatim in addition to reproducing photographs and illustrations created by the plaintiff. The defendant then allegedly displayed its product at trade shows, with any information identifying the plaintiff having been removed.
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New Albany, Indiana – Trademark attorneys for Coach, Inc. and Coach Services, Inc. of New York City have filed a lawsuit alleging Designer Fragrance & Gifts of Jeffersonville, IN, infringed a family of COACH trademarks which are registered with the U.S. Trademark Office, including Trademark Registration No. 2,088,706 for the mark COACH in connection with goods such as luggage, satchels, and backpacks.

In addition to the trademarks, the complaint alleges infringement of copyrights which have been registered with the U.S. Copyright Office . Coach also alleges that its products feature distinctive and non-functional trade dress, including designs, fabrics, colors, and patterns. The defendants are offering for sale counterfeit products which are “studied imitations” of Coach handbags, wallets, jewelry, and sunglasses and thereby infringe and dilute the COACH marks, infringe the trade dress and copyrights, and constitute unfair competition, according to the complaint.

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Contact Information
Indiana Intellectual Property: IP Litigation, Patents, Trademarks, Copyrights
  • Seventh Circuit
  • Northern District of Indiana
  • Southern District of Indiana
Paul B. Overhauser
Overhauser Law Offices, LLC
Greenfield
18 E Main St #202
Greenfield, IN 46140
Phone: 317.467.9100
Fax: 866.283.8549
Indianapolis
101 W Ohio St #2000
Indianapolis, IN 46204
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