Indianapolis, IN – Copyright lawyers for Dion Designs of Quebec, Canada have filed an infringement suit against Allwin Powersports, Corporation, Inc., Arthur Liao, MHR Helmet Co., Ltd., Foshan Shunde Fengxing Helmets, Ltd., and Jiangmen Pengcheng Helmets, Ltd. Plaintiff Dion claims he is a famous designer of helmets, who signed an agreement in 2005 with the Defendants to receive $0.50 for each helmet sold using Dion’s deigns. Defendants paid Dion for some helmets, but terminated the agreement around 2010. However, Dion claims that Defendants used some of Dion’s latest designs to make several new helmets. While some of these designs have been marketed by the Defendants in Europe, Dion fears that they will be offered in the US at the Dealer Expo 2011 on February 18 – 20, 2011 in Indianapolis. Dion claims that he filed copyright applications and design patent applications on his designs, although none of those applications has resulted in a registration or issued patent.
The complaint asserts a veritable “kitchen sink” of claims, such as a Lanham Act claim based on a misrepresentation that Defendants have “authority to import and sell such products, without disclosing the absence of a valid license or agreement with the designer.” Claims are also alleged for copyright infringement, trade secret misappropriation, breach of contract, conversion, unfair competition, and for declaratory relief. Dion’s complaint is also accompanied by a Motion for Preliminary Injunction seeking to bar the “displaying or promoting” of the allegedly infringing helmets at the Dealer Expo on February 18-20, 2011, or on the Internet.
Practice Note: The Plaintiffs’ complaint appears to have several inconsistencies. The Lanham Act claim based on a “failure to disclose” is highly unusual; normally, a Lanham Act claim is predicated on an overt misrepresentation as to source. Although Dion states that the Defendants’ claim that the helmets were “designed in Europe” is false, even if this is the case, it is hard to see how the Plaintiff is harmed, especially since the complaint states that “Dion’s plans to make commercial use of those designs have been placed on hold.” The copyright infringement claim is suspect because, as discussed elsewhere on this site, the Plaintiffs did not obtain a copyright registration before filing a suit. Also, to support the trade secret misappropriation claim, the plaintiff claims that his designs “derive substantial commercial value from not being generally known.” However, even if the Plaintiffs’ designs were once “not generally known,” they certainly are now since the Plaintiff: (a) attached them to his complaint, (b) filed them with the US Copyright Office, and because (c) the designs are alleged to been sold in Europe for some time. Dion’s claim for “conversion” also appears to be preempted by the Copyright Act. Finally, it seems that Dion will have difficulty establishing the “irreparable harm” factor necessary to obtain preliminary injunctive relief, since his predominant complaint is that he has not received his $0.50 per royalty license fee.
This case has been assigned to Chief Judge Richard L. Young and Magistrate Judge Tim A. Baker of the Southern District of Indiana, and assigned case no. 1:11-cv-00173-RLY-TAB.Complaint – Dion v. Allwin
Further information on this case is as follows:
Filed: February 4, 2011 as 1:2011cv00173 Updated: February 4, 2011 21:10:58
Plaintiffs: 91934885 QUEBEC INC. and STEPHANE DION
Defendants: ALLWIN POWERSPORTS CORPORATION, INC., ARTHUR LIAO, FOSHAN SHUNDE FENGXING HELMETS LTD., JIANGMEN PENGCHENG HELMETS LTD. and MHR HELMET CO. LTD.
Presiding Judge: Richard L. Young
Referring Judge: Tim A. Baker
Cause Of Action: Copyright Infringement