Indiana Intellectual Property Law News

May 25, 2012

Norco Industries, Inc. Sues Mito Corporation For Patent Infringement of Roof Bow

Indianapolis; IN – Patent attorneys for Norco Industries, Inc. of Elkhart, Indiana filed a patent infringement in the Southern District of Indianaalleging Mito Corporation of Elkhart, Indiana infringed patent no. D650,723 ROOF BOW, which has been issued by the US Patent Office.

The patented technology was invented by Bernard F. Garceau and Robert G. Chew, but the complaint states the patent was owned by Norco during the period of alleged infringement. The ‘723 patent was issued in December 2011. The complaint seeks an injunction, damages, attorney fees and costs.

Practice Tip: The complaint makes only a barebones statement regarding the patent infringement: it simply states Mito is infringing the patent by “making, selling and using roof bows that embody the patented invention.”

May 23, 2012

Mortar Net USA LTD Sues Keene Building Products Company For Trademark Infringement of Dovetail Shaped Mesh for Masonry

By Overhauser Law Offices, LLC

Hammond; IN – Trademark attorneys for Mortar Net of Burns Harbor, Indiana filed a trademark infringement suit in alleging Keene Building Products of Mayfield Heights, Ohio infringed trademark registration nos. 3,571,383 and 3,571,384, which have been registered with the US Trademark Office.

Mortar designs and sells construction products and building materials. One of its products is called Mortar Net and has been sold by the company since 1993 for use in masonry. The mark in question is associated with the Mortar Net product. The Mortar Net’s dovetail shape has industry recognition, and the shape has been registered as a trademark. The complaint alleges that Keene is offering products for sale that infringe Mortar’s trademarks on Keene’s website. Keene’s allegedly infringing product is called Keystone. The complaint makes claims of trademark infringement, trade dress infringement, false designation of origin, and unfair competition. Mortar seeks an injunction, an order requiring the destruction of all of Keene’s keystone products, damages, attorney fees and costs.

Practice Tip: The trademarked image is simply a black colored shape. It doesn’t seem to indicate any particular brand or product. There are likely issues about whether the trademark of the shape can be validly enforced.

May 21, 2012

The Mainstreet Collection, Inc. Sues Main Street Collection, LLC for Trademark Infringement of MAINSTREET COLLECTION MARK

By Overhauser Law Offices, LLC

Indianapolis; IN – Trademark attorneys for Mainstreet Collection of Washington, North Carolina filed a trademark infringement suit in the Southern District of Indiana alleging that Main Street Collection, LLC and Melissa Card of Fishers, Indiana infringed trademark registration no. 4,034,192 for the mark MSC MAINSTREET COLLECTION registered by the US Trademark Office.

The complaint states that the plaintiff is a successful gift product company that sells crafts, kitchenware, handbags and other gift items at over 6000 gift shops such as Hallmark®. The plaintiff also maintains a website at www.gowhimsey.com and a facebook page. The plaintiff states it has used the MSC mark at issue since at least 2000. The complaint alleges that the defendants also sell gift items. The complaint states that the defendants maintain a website at www.themainstreetcollection.com that utilizes a mark MAINSTREET COLLECTION that is very similar to the plaintiff’s. The complaint states that the plaintiff attempted to have the defendants transfer www.themainstreetcollection.com domain name to the plaintiff, but the defendants refused. The complaint states that customers have been contacting the defendants who are actually seeking to do business with the plaintiff. The complaint makes claims of trademark infringement and cybersquatting and seeks an injunction, damages, transfer of the www.themainstreetcollection.com domain name, attorney fees and costs.

Practice Tip: The claim of trademark infringement here is based entirely on maintaining a website. As we have previously blogged, it can be difficult to obtain personal jurisdiction when basing a claim solely on web presence. The plaintiff here, however, has avoided is issue by filing suit in the defendants’ home jurisdiction.

May 17, 2012

Southern District Lifts Stay on Patent Infringement Suit Against Google and Grants One Number Corporation’s Motion To Amend Complaint

By Overhauser Law Offices, LLC

Indianapolis, IN – The Southern District of Indiana has lifted a stay on a patent infringement case against Google and allowed the plaintiff, One Number Corp. Motion to amend its complaint. Patent attorneys for One Number Corp. of Anderson, Indiana had filed a patent infringement lawsuit in the Southern District of Indiana alleging that Google of Mountain View, California infringed patent no. 7,680,256 and 8,107,603, CONTACT NUMBER ENCAPSULATION SYSTEM, which has been issued by the US Patent Office.

The litigation was stayed while the US Patent Office re-examined the patents at issue. One Number had motioned the court to remove the stay because a substantial portion of the re-examination process has concluded. Google opposed lifting the stay because there was chance that the Federal Circuit Court would reverse the Board of Patent Appeals and Interferences’ conclusions. The court concluded that the stay should be lifted and granted One Number’s motion to amend their compliant. The parties were ordered to submit a case management plan within 14 days.

Practice Tip: It is common for patent infringement litigation to be stayed when the US Patent Office is re-examining the patent, although the district court is not required to stay the litigation. Each claim of a patent is presumed to be valid and enforceable, even if the patent is being re-examined. The US Patent Office offers this FAQ sheet that explains the re-examination process.

May 10, 2012

Southern District Grants Preliminary Injunction for American Petroleum Institute in Trademark Infringement Suit Over API Logo

By Overhauser Law Offices, LLC

Indianapolis; IN – Judge Tanya Walton Pratt of the Southern District of Indiana has issued a preliminary injunction enjoining Tailor Made Oil Company of Cambridge City, Indiana, TM Oil, LLC of Fishers, Indiana, Circle Town Oil of Fishers, Indiana, et al from infringing trade names API and AMERICAN PETROLEUM INSTITUTE and trademark registration nos. 1,864,428, 1,868,779 and 1,872,999, which have been registered with the US Trademark Office by the American Petroleum Institute (API) of Washington, DC.

Trademark lawyers for American Petroleum Institute (“API”) of Washington, D.C. filed a trademark infringement suit in alleging Tailor Made Oil Co., LLC of Cambridge City, Indiana, TMO Oil, LLC of Fishers, Indiana, Circle Town Oil of Fishers, Indiana, William R. Selkirk and Rebecca Selkirk of Cambridge City, Indiana, Lincoln R. Schneider of Fishers, Indiana and Jafarikal Corporation of Rosedale, New York infringed trademark. The complaint alleges that the individual defendants own and operate the corporate defendants as an interrelated business that offers low quality engine oil for sale. In March 2010, Tailor Made obtained certification for its engine oil, and a one year license to use the starburst mark on its products. In order to renew the one year license, Tailor Made was required to report its sales and to pay a renewal fee to API. Tailor Made failed to comply with these requirements and has continued to sell products bearing the trademarked starburst without authorization. We blogged about the case when it was filed.

The court’s order states that the defendants did not contest API’s motion for preliminary injunction. The parties submitted a joint proposed order, but did not agree on all aspects of the proposed order. The injunction ordered by the court prevents the defendants from registering or using any infringing marks. It also requires that the Jafarikal Corporation must notify API of its intent to distribute engine oil bearing the API marks and allow API to test any engine oil it distributes bearing the API marks.

Practice Tip: The order ordered that the defendants submit an affidavit of compliance within 10 business days of the injunction.

May 9, 2012

U.S. Supreme Court Invites Solicitor General to Brief Patent Infringement Case Against Indiana Farmer Over Second Generation Seed

By Overhauser Law Offices, LLC

Washington, D.C. – The United State Supreme Court has invited the U.S. Solicitor General to file a brief expressing the view of the United States government on a patent infringement case that has been submitted to the Court on a petition of certiorari. Patent lawyers for Indiana farmer Vernon Hugh Bowman have filed a petition for certiorari requesting that the U.S. Supreme Court review the adverse decision of the U.S. Court of Appeals for the Federal Circuit, which held that Bowman had infringed the patents of the Monsanto Company of St. Louis, Missouri by using second generation seeds.

In 2007, patent attorneys for Monsanto had filed a patent infringement lawsuit in the Southern District of Indiana alleging that Mr. Bowman infringed patent no. 5,352,605, Chimeric genes for transforming plant cells using viral promoters and RE39,247E, GLYPHOSATE-TOLERANT 5-ENOLPYRUVYLSHIKIMATE-3-PHOSPHATE SYNTHASES, which has been issued by the US Patent Office. The patents at issue cover different aspects of genetically-modified “Roundup Ready®” soybeans that are resistant to certain herbicides, including Monsanto’s Roundup® product.

According to the Federal Circuit Court’s opinion, all growers of the Roundup Ready soybeans must sign a limited use license, called a Technology Agreement. The agreement restricts the use of the seed to a single season and does not allow the grower to save any seed from the crop produced to plant the next season. However, the agreement allows growers to sell the second-generation seeds to local grain elevators as “commodity seeds.” Farmer Bowman purchased some of these commodity seeds, planted and produced a crop from them. Mr. Bowman then retained some of the seeds from the commodity seed crop and replanted them the next year.

Chief Judge Richard L. Young of the Southern District of Indiana found that Farmer Bowman had infringed the Monsanto’s patents and entered a judgment in the amount of $84,456.20 in favor of Monsanto. The Federal Circuit Court affirmed. Mr. Bowman’s petition of certiorari asked the Court to review this decision. At this point, the Supreme Court has not decided whether it will hear the merits of the case.

Practice Tip: Fewer than 2% of certiorari petitions to the U.S. Supreme Court are accepted for review by the Court. The fact that the Court has requested the U.S. Solicitor General to brief this case suggests that the Court is taking interest in Bowman’s petition.

May 3, 2012

138 Trademark Registrations Issued to Indiana Companies in April, 2012

By Overhauser Law Offices, LLC

The US Trademark Office issued the following 138 trademark registrations to persons and businesses in Indiana in April, 2012, based on applications filed by Indiana Trademark Attorneys:

	Registration No.	MARK
1	4133431	INDIANA HAND TO SHOULDER CENTER	VIEW
2	4132040	CHAIRS	VIEW
3	4131967	EV-N-SPRED	VIEW
4	4131894	KEYMARK	VIEW
5	4131738	S25 SPRAY-PRO	VIEW
6	4131665	TAKING ENERGY IN A NEW DIRECTION	VIEW
7	4131578	CLD	VIEW
8	4131522	BLASTMEDIA	VIEW
9	4131326	PR PRECISION RINGS INCORPORATED	VIEW
10	4131155	ASSASSIN HTPC	VIEW
11	4131035	PEOPLE FOR URBAN PROGRESS	VIEW
12	4131029	BE ADVISER	VIEW
13	4131015	VIPER	VIEW
14	4131012	DRIVEVELOCITY	VIEW
15	4131011	DRIVEVELOCITY	VIEW

May 3, 2012

Southern District Grants Partial Summary Judgment Dismissing Some Copyright Claims In Dispute Over Virgin Mary Images

By Overhauser Law Offices, LLC

Indianapolis; IN – The Southern District of Indiana has granted partial summary judgment that dismisses many of Patricia Fuller a/k/a Sister Joseph Therese’s claims in a lawsuit over the physical and intellectual property rights to certain images and statues of the Virgin Mary, which are titled Our Lady of America. Intellectual property attorneys for Kevin B. McCarthy of Indianapolis, Indiana, Albert H. Langsenkamp, Carmel, Indiana and BVM Foundation, Inc. of Batesville, Indiana had filed a lawsuit in the Southern District of Indiana making several claims against Patricia Ann Fuller, also known as Sister Joseph Therese of Fostoria, Ohio and John Doe of Ohio. Ms. Fuller apparently has counterclaimed claiming trademark and copyright ownership of the copyrighted work OUR LADY OF AMERICA.

The court’s partial judgment dismisses Fuller’s defamation, RICO and trade dress claims as well as her copyright claims that do not relate to the copyrighted works VAu000297438, VA0000643362 and TXu000366731, which have been registered by the US Copyright Office. The court also stayed the litigation, pending a resolution from the Catholic Church of “the status/ownership of ecclesiastical property and property rights arising while Sister Ephrem was a nun[.]”

This case has convoluted facts and procedural issues. We have previously blogged about the case here.

Practice Tip: It looks like the copyright claims are going to turn on whether Ms. Fuller or the Catholic Church is the owner of the copyrights. The records of the US Copyright Office indicate that “Sister Mildred Mary Neuzil” is the copyright claimant.

May 2, 2012

Aaron Suozzi Sues Coman Publishing Company for Copyright Infringement of Photographs

By Overhauser Law Offices, LLC

Fort Wayne; IN – Copyright attorneys for Aaron Suozzi of Fort Wayne, Indiana filed a copyright infringement suit in the Allen County Superior Court alleging Coman Publishing of Durham, North Carolina infringed the copyrighted work of photographs which has been registered by the US Copyright Office. Upon the request of the defendant, the case was removed to the Northern District of Indiana.

Aaron Suozzi is a freelance photographer who provided his services to Coman Publishing. On December 8, 2011, Suozzi was informed that his services would no longer be used by Coman. He immediately demanded his photographs back and that Coman cease using his copyrighted photographs. Coman continued to use Suozzi’s copyrighted photographs; the January issue of Blue and Gold Illustrated, published on December 13, 2011 contained 16 of Suozzi’s copyrighted photographs, one being the magazine’s cover photo. According to the complaint, on December 15, Coman again informed Suozzi that they would no longer be using his services. Suozzi sent a cease and desist letter to Coman to stop using any of Suozzi’s copyrighted photographs in their magazine and on their website. Coman failed to do so. The complaint alleges Coman’s continued use of the copyrighted photographs violates Indiana Code §35-43-5-3 and that Coman’s knowing misapplication of Suozzi’s property involved substantial risk of loss to Suozzi. Suozzi seeks to recover $6,000, which includes his damages and attorney fees, plus interest, and court costs.

Practice Tip: Any case filed in state court that makes a federal claim can be removed to federal court upon request. Most intellectual property cases involve a federal claim under the federal patent, trademark or copyright laws. Here, however, the plaintiff has not explicitly stated a federal claim. However, it is clear he seeks protection of “copyrighted” photographs, which would invoke federal copyright law.

May 1, 2012

Indiana Patent Attorneys Obtain 132 Patents for Indiana Companies in April, 2012

By Overhauser Law Offices, LLC

Indiana patent attorneys obtained issuance of the following 132 patents from the US Patent Office to persons and businesses in Indiana in April, 2012:

Patent No.

Title

1

D658,345

Trash can

2

D658,207

Radiator filler neck drip tray with retention clips

3

D658,206

Radiator filler neck with integrated drip tray assembly

4