South Bend, Indiana – Attorneys for Plaintiff, Jacob J. Dell, Individually, & d/b/a Magic in the Sky of Boerne, Texas, filed suit in the Northern District of Indiana alleging that Defendant, Miand, Inc. of LaPorte, Indiana, infringed its rights in United States Trademark Registration No. 5,184,437 for the mark MAGIC IN THE SKY (the “Mark”). Plaintiff is seeking actual damages, enhanced damages, attorneys’ fees, prejudgment and post-judgment interest, court costs, and any other relief the court deems proper.
Plaintiff owns and operates Magic in the Sky, a pyrotechnics company for which he has used the Mark since at least as early as March 24, 2001. Dell filed a U.S. trademark application on January 22, 2016 and the trademark was granted registration on April 18, 2017. The Defendant, in connection with their fireworks display services, uses the phrase “Sky Magic Pyrotechnics” (“Infringing Mark”).
Dell first learned of the Infringing Mark when a representative of Busch Gardens in Tampa, Florida asked if he was involved with the Defendant due to their use of “Sky Magic” on the internet. He informed Defendant of their infringing use in a cease and desist letter dated June 19, 2018. After he received no response, Dell sent a second letter to Defendant on September 7, 2018. Defendant has continued using the Infringing Mark and has not responded to either cease and desist letter.
Plaintiff is claiming trademark infringement under the Lanham Act. He is further seeking preliminary and permanent injunctive relief pursuant to 15 U.S.C. § 1116 and Defendant’s profits, actual damages, and costs of the action pursuant to 15 U.S.C. § 1117 for unfair competition under the Lanham Act.