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Indianapolis, Indiana – J & J Sports Productions, Inc. of Campbell, California (“J & J Sports”) sued in the Southern District of Indiana alleging that Luis A. Scheker (“Scheker”) and Margaritas US31 Mexican Restaurant, Inc. of Indianapolis, Indiana (“Las Margaritas”) intercepted and broadcast “Star Power”: Floyd Mayweather, Jr. v. Victor Ortiz without authorization.

J & J Sports states that it is the exclusive domestic commercial distributor of Star Power: Floyd Mayweather, Jr. v. Victor Ortiz (the “program”).  It has sued Las Margaritas, as well as Scheker as an individual, under the Communications Act of 1934 and The Cable & Television Consumer Protection and Competition Act of 1992. 

Specifically, Defendants have been accused of violating 47 U.S.C. § 605 and 47 U.S.C. § 553 by displaying the program on September 17, 2011 without a commercial license.  Regarding the claim under 47 U.S.C. § 605, the complaint alleges that with “full knowledge that the Program was not to be intercepted, received, published, divulged, displayed, and/or exhibited by commercial entities unauthorized to do so, each and every one of the above named Defendants . . . did unlawfully intercept, receive, publish, divulge, display, and/or exhibit the Program” for the purpose of commercial advantage and/or private financial gain. 

A count of conversion is also included which asserts that Defendants’ acts were “willful, malicious, egregious, and intentionally designed to harm Plaintiff J & J Sports” and that, as a result of being deprived of their commercial license fee, J & J Sports suffered “severe economic distress and great financial loss.” 

In addition to naming the separate legal entity, Margaritas US31 Mexican Restaurant, Inc., which apparently owns the restaurant, Plaintiff has also sued Mr. Scheker as an individual, alleging that he had the right and ability to supervise the activities of Las Margaritas.  J & J Sports asserts that those activities included the unlawful interception of Plaintiff’s program. 

J & J Sports also contends that Mr. Scheker specifically directed the employees of Las Margaritas to unlawfully intercept and broadcast Plaintiff’s program at Las Margaritas or, if he did not, that the actions of the employees of Las Margaritas are directly imputable to Mr. Scheker by virtue of his purported responsibility for the activities of Las Margaritas.  Mr. Scheker has also been named individually as a result of J & J Sports’ contention that he is a managing member of Margaritas US31 Mexican Restaurant, Inc.   Further, J & J asserts, Mr. Scheker, as an individual specifically identified on the liquor license for Las Margaritas, had an obvious and direct financial interest in the activities of Las Margaritas.

In the complaint, the intellectual property attorney for J & J Sports listed the following counts and requests for redress:

•Count I: Violation of Title 47 U.S.C. Section 605.  For this count, J & J Sports requests (a) statutory damages for each willful violation in an amount to $100,000.00 pursuant to Title 47 U.S.C. 605(e)(3)(C)(ii), and (b) the recovery of full costs, including reasonable attorneys’ fees, pursuant to Title 47 U.S.C. Section 605(e)(3)(B)(iii).

•Count II: Violation of Title 47 U.S.C. Section 553.  For this count, J & J Sports asks the court for (a) statutory damages for each violation in an amount to $10,000.00 pursuant to Title 47 U.S.C. § 553(c)(3)(A)(ii); (b) statutory damages for each willful violation in an amount to $50,000.00 pursuant to Title 47 U.S.C. § 553(c)(3)(B); (c) the recovery of full costs pursuant to Title 47 U.S.C. Section 553 (c)(2)(C); and (d) and in the discretion of the court, reasonable attorneys’ fees, pursuant to Title 47 U.S.C. Section 553 (c)(2)(C).

•Count III: Conversion.  For this count, the court is requested to order both compensatory and punitive damages from Defendants as the result of the Defendants’ allegedly egregious conduct, theft, and conversion of the program and deliberate injury to the Plaintiff.

Practice Tip #1: While on the surface this appears to be a copyright case, an allegation of interception under 47 U.S.C. § 605 is a different cause of action from copyright infringement.  However, a suit alleging interception does not preclude an additional lawsuit alleging different causes of action.  For example, the copyright holder can also sue for copyright infringement, which could increase damages by as much as $150,000. 

Practice Tip #2: As part of its complaint, J & J Sports claims that the Defendants’ actions have subjected them to “severe economic distress and great financial loss.”  It will be interesting to see what evidence it offers as proof that, as a result of allegedly not receiving its full commercial fee for the programming purportedly displayed by the Defendants – a circumstance presumably known to few other than the Defendants themselves – it has suffered severe economic distress and great financial loss.

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Indianapolis, Indiana — Judge Sarah Evans Barker of the Southern District of Indiana has entered a default judgment for copyright infringement in favor of Malibu Media, LLC of Los Angeles, California.  The copyrighted works at issue had been registered by the U.S. Copyright Office.

In June 2012, copyright attorney Paul Nicoletti filed another copyright infringement lawsuit in the Southern District of Indiana on behalf of serial plaintiff Malibu Media.  The lawsuit listed multiple defendants, including William Meeks Sr. of Decatur, Indiana.  In its complaint, Malibu Media alleged that Meeks had infringed 16 copyrighted works.  Specifically, Malibu Media contended that Meeks and others directly and contributorily infringed its copyrighted works when they downloaded and disseminated all or a portion of the works using BitTorrent, a peer-to-peer file-sharing protocol.  The initial complaint was served upon 23 defendants.  Discussed in this opinion are the allegations, findings and judgments against Meeks only.

Judge Barker held that, as a result of his failure to defend against Malibu Media’s assertions, Meeks was deemed to have admitted to willful copyright infringement.  Judge Barker also held that, without an injunction, Meeks’ use of the BitTorrent protocol would continue to cause Malibu Media irreparable injury, stating that there existed a “threat of continued violations” of Malibu Media’s exclusive rights to reproduce, distribute, perform and display the 16 copyrighted works. 

The court entered a permanent injunction against Meeks after finding that such an injunction promoted creativity and individual effort and was therefore in the public interest.  Meeks was also ordered to pay to Malibu Media $36,000.00 in statutory damages, as authorized under 17 U.S.C. § 504(c)(1), and $2,645.00 for attorneys’ fees and costs, as authorized under 17 U.S.C. § 505, for a total of $38,645.00.  He was further ordered to pay post-judgment interest accruing under 28 U.S.C. § 1961 as of the date of the default judgment until the date of its satisfaction.  Finally, Meeks was ordered to destroy all copies of Malibu Media’s works that he had downloaded onto any computer hard drive without proper authorization, including all copies that he had in his possession, custody or control.

Practice Tip #1:  

Under 17 U.S.C. § 504(c)(1), a copyright owner may elect actual or statutory damages.  Statutory damages range from a sum of not less than $750 to not more than $30,000 per infringed work.  The determination of the exact amount is left to the discretion of the court. 

There is a significant disparity in the dollar amount awarded in default judgments against defendants in copyright infringement cases involving BitTorrent.  In two separate cases, Judge William T. Lawrence recently ordered two defendants who failed to appear to pay $20,000 in statutory damages for copyright infringement that was deemed to have been admitted by the defendants’ failure to defend against the allegations.  See here and here.  However, in a similar case, Judge Jane Magnus-Stinson ordered an entry of default judgment against a defendant for $151,425.  Judge Barker has issued several prior default judgments in this case, each for $36,000 plus attorneys’ fees.

Practice Tip #2:

Deciding to simply ignore a complaint, as William Meeks Sr. apparently did, can be a costly error.  Failing to present the defendant’s version of the facts and arguments results in the court considering only the plaintiff’s side of the story.  Here, because the defendant chose to leave the complaint unanswered, the well-pled allegations of the plaintiff relating to liability were taken as true.

After the entry of default judgment, the court then conducted an inquiry to ascertain the amount of damages with “reasonable certainty.”  Again, in such circumstances, it serves a defendant well to plead his case — to present the court with reasons that the plaintiff should not get 100% of what he requests.

Overhauser Law Offices, the publisher of this website, has represented several hundred persons and businesses regarding copyright infringement and similar matters.

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Evansville, Indiana – Indian Industries, Inc. d/b/a Escalade Sports of Evansville, Indiana (“Escalade Sports”) has sued Sam’s East, Inc. d/b/a Sam’s Club of Bentonville, Arkansas (“Sam’s Club”) in the Southern District of Indiana alleging infringement of its patented TABLE TENNIS BALL STORAGE Table Tennis Picture.jpgAPRON, Patent No. 8,414,431 (the “‘431 patent”), which has been issued by the U.S. Patent Office.

Escalade Sports began in 1927 as Indian Archery And Toy Co. It is a global company which offers goods related to basketball, table tennis, archery and other sports.  Escalade Sports and its predecessors have been in the business of selling table-tennis tables and accessories since 1973.

Sam’s Club, a chain of membership-only retail clubs, was founded in 1983. A subsidiary of Wal-Mart Stores, Inc., it was named after Walmart founder Sam Walton.  Sam’s Club has more than 47 million members and operates approximately 600 retail warehouse clubs in the United States, along with locations in Brazil, China and Mexico.  Sam’s Club operates 16 warehouse clubs in Indiana. 

On April 9, 2013, the ‘431 patent was issued for an invention titled “Table Tennis Ball Storage Apron.”  Prior to its issuance, the ‘431 patent was purportedly assigned to Escalade Sports.  At issue in this suit is a feature of a table-tennis table which Escalade Sports claims is protected under the ‘431 patent. 

Escalade Sports markets its table-tennis tables and accessories under a number of marks, including the Stiga® mark, which is used under a license from Stiga Sports AB.  In the fall of 2013, Escalade Sports launched a new line of Stiga® table-tennis tables which included ball storage racks mounted along the width of the ends of the table, adjacent the player.  These tables include the Stiga® Master Series ST3100 and ST4100 tables and the Stiga® STS185, STS285, STS385, STS420 and STS520 tables (the “Stiga® Storage Rack Tables”).  According to the complaint, the ‘431 patent covers Escalade Sports’ Stiga® Storage Rack Tables.

Escalade Sports asserts that, sometime in 2013, Sam’s Club began selling and offering to sell the “ESPN 2 Piece Table Tennis” product.   It asserts that this product infringes claims 1 through 15 of the ‘431 patent.

Patent attorneys for Escalade Sports filed this patent infringement lawsuit asserting a single claim: the infringement of the ‘431 patent.  Escalade Sports contends that this infringement includes, in part, the sale and offer for sale of the ESPN 2 Piece Table Tennis product. 

Escalade Sports asserts that it has been damaged by Sam’s Club’s alleged infringement and that it will suffer irreparable injury unless Sam’s Club is permanently enjoined by the court.  Escalade Sports seeks: a judgment of infringement of the ‘431 patent by Sam’s Club; injunctive relief restraining Sam’s Club and its agents from further acts of infringement; an order that any devices subject to control by Sam’s Club which infringe upon any claim of the ‘431 patent be delivered up and destroyed; an award to Escalade Sports of damages, costs, attorney’s fees and/or expenses associated with this action; an award of Sam’s Club’s wrongful profits associated with any infringement of Escalade Sports’ intellectual property rights; to have any award of damages be increased to the maximum amount permitted under 35 U.S.C. §284; and an order declaring that this is an exceptional case under 35 U.S.C. § 285, upon a finding that Sam’s Club knowingly and willfully infringed.

Practice Tip:

The “willfulness” of the alleged infringement is an important issue in patent litigation because willful infringement may result in a tripling of the damages awarded to the patent holder.  Willfulness consists of two elements: (1) an objective element that is often, but not always, a question of law, and (2) a subjective element that is inherently a question of fact, to be decided by the jury. 

Under the first prong, if an “accused infringer’s position is susceptible to a reasonable conclusion of no infringement,” the infringer’s conduct cannot be objectively unreasonable.  Conversely, an action is objectively unreasonable if the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent. 

When considering the second prong – the element of subjective willfulness – fact-finders should consider: (1) whether the infringer copied the patentee’s commercial products; (2) whether the infringer presented evidence that it obtained legal opinions of patent counsel to justify its infringing actions; (3) whether the infringer attempted to avoid infringement by designing around the patents; and (4) whether the infringer acted in accordance with the standards of commerce. 

 

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Alexandria, Virginia – On Wednesday, October 23, 2013, the U.S. Patent Office (“USPTO”) will hold a one-day seminar on using the Madrid Protocol for filing an international application and maintaining an international registration. 

The target audience is practitioners who are already familiar with and have used the Madrid Protocol.  The purpose of the seminar is to provide practical information on common issues that arise during the processing of the application, as well as maintaining and managing the resulting international registration.  Seminar highlights include: resources of the World Intellectual Property Organization; issues to consider when preparing to file and actually filing an international application; the USPTO review process for certification of the international application; International Bureau review of the international application; and issues related to changing and renewing the international registration.  A detailed agenda will be provided at a later date.

The event will be held in the Global Intellectual Property Academy at the USPTO campus in Alexandria, Virginia from 9 a.m. to 5 p.m. (with a lunch break).  To attend in person, please send your name to TMFeedback@uspto.gov no later than close of business Friday, October 18, with the subject line “Madrid Protocol advanced training.”  The seminar will also be webcast.  Webcast instructions and an agenda will be posted on the USPTO website in advance of the event.  There is no need to register if you only plan to view the webcast.  If possible, the USPTO will attempt to make a version available for viewing at a later time.

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Indianapolis, Indiana — Patent attorneys for GS CleanTech Corporation of Alpharetta, Georgia have filed a patent infringement lawsuit in the Southern District of Iowa alleging that Southwest Iowa Renewable Energy, LLC of Council Bluffs, Iowa infringed Patent Nos. 7,601,858, METHOD OF PROCESSING ETHANOL BYPRODUCTS AND RELATED SUBSYSTEMS; 8,008,516, METHOD OF PROCESSING ETHANOL BYPRODUCTS AND RELATED SUBSYSTEMS; 8,008,517, METHOD OF RECOVERING OIL FROM THIN STILLAGE and 8,283,484, METHOD OF PROCESSING ETHANOL BYPRODUCTS AND RELATED SUBSYSTEMS, which have been issued by the U.S. Patent Office.  The case was transferred to the Southern District of Indiana as part of Multidistrict Litigation No. 2181.

This Multidistrict Litigation (“MDL”) began with an assertion of patent infringement by CleanTech of Patent No. 7,601,858 (the “‘858 patent”), which was issued on October 13, 2009.  CleanTech sued numerous Defendants alleging infringement of that patent shortly after its issuance.  The Defendants accused of patent infringement in prior litigation include: Big River Resources Galva, LLC; Big River Resources West Burlington, LLC; Cardinal Ethanol, LLC; ICM, Inc.; LincolnLand Agri-Energy, LLC; David J. Vander Griend; Iroquois Bio-Energy Co., LLC; Al-Corn Clean Fuel; Blue Flint Ethanol, LLC; ACE Ethanol, LLC; Lincolnway Energy, LLC; United Wisconsin Grain Producers, LLC; Bushmills Ethanol, Inc.; Chippewa Valley Ethanol Co.; Heartland Corn Products and Adkins Energy, LLC.

Since September 29, 2011, when the court overseeing the MDL issued its order on claim construction with respect to the disputed claims of the ‘858 patent, patentee CleanTech has further asserted infringement by some of the allegedly infringing Defendants of three additional patents in the ‘858 patent family: U.S. Patent Nos. 8,008,516 (the “‘516 patent”), 8,008,517 (the “‘517 patent”) and 8,283,484 (the “‘484 patent”) (the ‘858, ‘516, ‘517 and ‘484 patents are, collectively, the “‘858 patent family”). 

The patents in the ‘858 family share an identical specification and have substantially similar claim terms.  CleanTech claims that the method claimed increases the efficiency and economy of recovering corn oil.  Southwest Iowa Renewable Energy is charged with infringing the ‘858 patent, along with the related ‘516, ‘517, and ‘484 patents (collectively “the patents-in-suit”).

CleanTech’s patented methods recover corn oil by evaporating, concentrating and mechanically separating thin stillage (“stillage”), a byproduct of ethanol produced from corn, into two components: corn oil and a post-recovery syrup (“syrup”) with most of its corn oil removed. 

In one embodiment, the patented method comprises initially processing the whole stillage by mechanically separating (such as by using a centrifugal decanter) the whole stillage into distillers wet grains and thin stillage, and then introducing the thin stillage into an evaporator to form a concentrated syrup byproduct.  Prior to recombining the then-concentrated syrup with the distillers wet grains, the syrup is introduced into a second mechanical separator, such as a second centrifuge, which is different from the centrifuge that mechanically separated the whole stillage into distillers wet grains and thin stillage.  This second centrifuge separates corn oil from the syrup thereby allowing for the recovery of usable corn oil.  The syrup that exits the centrifuge is then recombined with the distillers wet grain and dried in a dryer.  The corn oil that is extracted from the syrup can be used for various purposes such as feedstock for producing biodiesel.

Prior lawsuits included GreenShift Corp. as a Plaintiff.  In this current lawsuit, initiated in Southern District of Iowa, GreenShift’s subsidiary GS CleanTech Corp. is the sole Plaintiff.  Patent attorneys for CleanTech assert the following in the complaint:

·         Count I: Infringement of U.S. Patent No. 7,601,858

·         Count II: Infringement of U.S. Patent No. 8,008,516

·         Count III: Infringement of U.S. Patent No. 8,008,517

·         Count IV: Infringement of U.S. Patent No. 8,283,484

CleanTech asks the court for a permanent injunction prohibiting further infringement of the patents-in-suit; an award of damages adequate to compensate CleanTech for the infringement that has occurred, but in no event less than a reasonable royalty for the use made of the inventions of the patents-in-suit as provided in 35 U.S.C. § 284, together with prejudgment interest from the date the infringement began; and an award to CleanTech of all remedies available under 35 U.S.C. §§ 284, 285 and 154(d).

Practice Tip: The United States Judicial Panel on Multidistrict Litigation, (http://www.jpml.uscourts.gov/) also known as the “MDL Panel” or, simply the “Panel,” consists of seven sitting federal judges, who are appointed to serve on the Panel by the Chief Justice of the United States. The job of the Panel is to (1) determine whether civil actions pending in different federal districts involve one or more common questions of fact such that the actions should be transferred to one federal district for coordinated or consolidated pretrial proceedings; and (2) select the judge or judges and court assigned to conduct such proceedings.

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Indianapolis, Indiana — An intellectual property attorney has filed seven new copyright suits in the Southern District of Indiana on behalf of Malibu Media, LLC of Los Angeles, California alleging that seven John Doe defendants infringed Malibu Media’s copyrighted works.

Copyright lawyer Paul Nicoletti is again in federal court on behalf of Malibu Media asserting infringement of the company’s intellectual property.  In this current round, Malibu Media’s latest incursion into the federal court system, seven new and nearly identical lawsuits have been filed against anonymous John Doe defendants, each claiming copyright infringement.  The Defendants allegedly used the BitTorrent file-sharing protocol to illegally download, copy and distribute elements of various works of Malibu Media’s copyrighted material.

Malibu Media seeks a permanent injunction barring the Defendants from engaging in infringing activities; an order by the court to remove infringing materials from all computers of each Defendant; an award of statutory damages of $150,000 per infringed work and reasonable attorneys’ fees and costs.

Practice Tip: There is a significant disparity in the dollar amount awarded in default judgments against defendants in copyright infringement cases involving BitTorrent.  In two separate cases, Judge William T. Lawrence recently ordered two defendants who failed to appear to pay $20,000 for the copyright infringement that was deemed to have been admitted by the defendants’ failure to defend against the allegations.  See here and here.   However, in a similar case, Judge Jane Magnus-Stinson ordered an entry of default judgment against a defendant for $151,425, the full amount requested.

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The US Trademark Office issued the following  152 trademark registrations to persons and businesses in Indiana in September, 2013, based on applications filed by Indiana Trademark Attorneys:

Reg. Number Word Mark Check Status
4404546 FLEX RUN VIEW
4406575 VIEW HEALTHY. VIEW HAPPY. VIEW WHOLLY. VIEW! VIEW
4408869 STEAK FRANKS VIEW
4408860 SUPER POWER SUPPLY VIEW
4407023 RECONNECT VIEW
4407022 VISION CLEAR VIEW
4406838 VIEW
4406808 SB VIEW
4406805 SUM NUG VIEW
4406636 INGO VIEW
4406570 ANGEROLE VIEW
4406550 CERATOUGH VIEW
4408820 SLEEP SITTING UP VIEW
4406126 SCOOP DIGGITY DOG VIEW
4408618 AK VIEW
4406080 SPRINT VIEW

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The US Patent Office issued the following 132 patent registrations to persons and businesses in Indiana in September, 2013, based on applications filed by Indiana Patent Attorneys:

Patent No. Title
D690,474 Door frame with a split door for an animal enclosure 
D690,442 Wall panel 
D690,296 Tablet computer 
8,542,363 Self-aligning light source and detector assembly for absorbance measurement 
8,541,669 Inbred corn line MXD03 
8,541,658 Canola cultivar CL121460H 
8,541,657 Canola cultivar CL117235H 
8,541,656 Canola cultivar DN051465 
8,541,372 Isolated extracellular matrix material including subserous fascia 
8,541,369 Fibroblast growth factor 21 variants having improved pharmacological potency and/or improved pharmaceutical stability 
8,541,344 Compositions with cyclopropenes and metal-complexing agents 
8,541,183 Methods of identification, assessment, prevention and therapy of lung diseases and kits thereof 
8,540,935 System and method for coding information on a biosensor test strip 
8,540,760 Tubular devices having reversible components for deployment of endoluminal occluders and related methods and systems 

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Washington, D.C. — The U.S. Patent Office (“USPTO”) and federal courts may be affected by a government shutdown, which will begin tomorrow if Congress does not enact a continuing resolution to fund government operations today. 

The federal court system will not be affected immediately.  During the first 10 business days of a lapse in appropriations, the judiciary will use available fee and no-year balances to pay judges and court employees, and to maintain court operations.  Courts will continue to operate, but court personnel have been instructed to conserve funding as much as possible by delaying or deferring expenses that are not critical to the performance of their constitutional responsibilities.

After the 10-day period, if there is still no appropriation, the judiciary will operate under the terms of the Anti-Deficiency Act, which allows “essential work” to continue during a lapse in appropriations. Among the definitions of “essential work” are powers exercised under the Constitution, which include activities to support the exercise of Article III judicial powers, specifically the resolution of cases.

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Washington, D.C. — The U.S. Patent and Trademark Office (“USPTO”) is seeking public comment on amendments to trademark registrations with respect to identification of goods and services which may be necessary due to changes in technology.  The USPTO cited changes in the manner or medium by which products or services are offered for sale and provided to customers as a result of evolving technology.  Comments are due no later than Nov. 1, 2013, and should be emailed to TMFeedback@uspto.gov, with the subject line “Technology Evolution.”

Under §7(e) of the Trademark Act, a registration based on an application under §1 or §44 of the Trademark Act may be amended for good cause upon application of the owner and payment of the prescribed fee, provided the amendment does not materially alter the character of the mark.  15 U.S.C. §1058(e).  With respect to the identification of goods/services, an identification may be amended to restrict the identification or change it in ways that would not require republication of the mark.  See 37 C.F.R. §2.173(e).  However, no goods/services may be added to a registration by amendment.  Moreover, under current USPTO practice, changed circumstances, such as new technology, will not render acceptable an amendment that is not otherwise permissible.  TMEP §1609.03.  

Recently, the USPTO has received a number of requests for amendment under §7, as well as inquiries from registration owners, seeking to amend identifications of goods/services due to changes in the manner or medium by which products and services are offered for sale and provided to consumers, particularly because of evolving technology.  In some cases, these requests have also sought a corresponding change in classification. 

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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
Phone: 317.891.1500
Fax: 866.283.8549

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