Indiana Intellectual Property Law News

May 2, 2012

Aaron Suozzi Sues Coman Publishing Company for Copyright Infringement of Photographs

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

D658,205

Radiator filler neck with drip tray assembly lugs

5

8,165,944

Point of service third party financial management vehicle for the healthcare industry

6

8,164,341

System and method to measure series-connected cell voltages and verify measurement accuracy

7

8,163,978

Generation of plants with altered protein, fiber, or oil content

8

8,163,876

DNA sequences, vectors and proteins of avian influenza hemagglutinin

9

8,163,691

Compositions and methods for identifying agents which modulate PTEN function and PI-3 kinase pathways

10

8,163,560

Coated test elements

April 27, 2012

Lippert Components Sues Actuant Corporation for Patent Infringement of Retractable Room Technology for Recreational Vehicles

By Overhauser Law Offices, LLC

South Bend; IN – Patent attorneys for Lippert Components of Goshen, Indiana filed a patent infringement suit in the Northern District of Indiana alleging Actuant Corporation of Menomonee Falls, Wisconsin, Versa Technologies of Milwaukee, Wisconsin and Engineered Solutions of Milwaukee, Wisconsin infringed patent no. 8,016,343 RETRACTABLE ROOM ACTUATION ASSEMBLY FOR RECREATIONAL VEHICLE, which has been issued by the US Patent Office.

The complaint states that the defendants displayed a new product, called “In-Wall Slide,” at a trade show in Kentucky in November and December 2010. Thereafter, Lippert notified the defendants that it had a patent application pending for the exact same technology utilized by the In-Wall Slide product. Lippert’s ‘343 patent was granted on September 13, 2011. The complaint states that the defendants again displayed the In-Wall Slide product at the 2011 trade show. Libbert alleges that the In-Wall Slide product infringes its ‘343 patent. The complaint makes one claim of patent infringement and seeks an injunction, damages, attorney fees and costs.

Practice Tip: The plaintiff has included an interesting fact to establish personal jurisdiction. The complaint alleges that Versa and Engineered Solutions operate a business in Mishawaka, Indiana called Power Gear.

April 25, 2012

Gino’s East Services Sues GE Pizza Of Mishawaka for Trademark Infringement in Pizza Franchise Dispute

By Overhauser Law Offices, LLC

Hammond; IN – Trademark attorneys for Gino’s East Services of Chicago, Illinois filed a trademark infringement suit in the Northern District of Indianaalleging GE Pizza of Mishawaka, Indiana, Shamrock Management Group of Highland, Indiana, Larry Briski and Mary Briski infringed trademark registration nos. 1,511,299, 3,341,730 and 3,572,210 for the marks GINOS EAST OF CHICAGO THE ORIGINAL registered with the US Trademark Office.

Gino’s East is a franchisor of pizza restaurants called “The Original Gino’s East of Chicago.” The complaint states that the defendants operate two franchise restaurants in Mishawaka and Highland, Indiana. The complaint states that Larry and Mary Briski personally guaranteed the franchise agreements. Gino’s East owns several trademarks associated with its franchise brand. The complaint states that the defendants have failed to pay royalty and other fees required by the franchise agreements. In February 2012, Gino’s East sent a letter to the defendants terminating the franchise agreement due to the failure to pay required fees. The complaint states that the defendants have failed to cease to use Gino’s East’s trademarks and have failed to return equipment and material bearing Gino’s East’s marks. The complaint states the defendants have not altered the exterior or interior of the restaurants so as to alert the public that they are no longer Gino’s franchises. The complaint makes claims of trademark infringement, unfair competition, trade name and dress infringement and breach of franchise agreement.

Practice Tip: Franchise agreements typically require the franchisee to promptly cease to use all of the franchise marks as well as return all items bearing the franchise marks in the event the franchise agreement is terminated. Failure to promptly comply with these provisions can lead to liability for trademark infringement, among other claims.

April 23, 2012

Eli Lilly Sues Apotex Inc. for Patent Infringement of ALIMTA

By Overhauser Law Offices, LLC

Indianapolis, IN – Patent attorneys for Eli Lilly of Indianapolis, Indiana filed a patent infringement suit in alleging Apotex of Toronto, Canada infringed patent no. 7772209, ALIMTA, which has been issued by the US Patent Office.

ALIMTA is a chemotherapy drug used to treat mesothelioma and other lung cancers. Lilly co-owns the patent with Princeton University. This lawsuit arises from Apotex’s filing of an Abbreviated New Drug Application in March 2012 with the Food and Drug Administration that utilizes the ALIMTA patent. Lilly alleges that Apotex seeks approval for ANDA and that the product infringes its patents. The complaint makes one claim of patent infringement and seeks a declaration of infringement, an injunction, attorney fees and costs.

Practice Tip: Lilly’s ALIMTA has been the subject of several patent infringement cases. Here are a few we have blogged about:

Eli Lilly and Company Sues Accord Healthcare for Patent Infringement of Lung Cancer Drug ALIMTA
Eli Lilly Company Sues APP Pharmaceuticals LLC for Patent Infringement of Chemotherapy Drug
Lilly Wins Patent Infringement Suit Regarding Chemotherapy Drug

April 20, 2012

Microsoft Corporation Sues D & A LLC for Copyright and Trademark Infringement Unauthorized Installations of Windows XP

By Overhauser Law Offices, LLC

Indianapolis; IN – Trademark and copyright attorneys for Microsoft Corporation of Redmond, Washington filed a copyright and trademark infringement suit in alleging D & A LLC d/b/a/ Asset Recovery and Recycling and David B. Bell of Indianapolis, Indiana infringed trademarks 1256083, 1200236, 1872264 and 2744843 registered by the US Trademark Office. The complaint also makes copyright infringement, false designation of origin, false description and representation, and unfair competition.

The complaint alleges that D&A markets, sells, and distributes computer hardware and software, including Microsoft products. The complaint states that D&A sells computers, which it advertises have Microsoft software pre-installed. Microsoft alleges that the Microsoft software on the computers D&A sells are infringing copies. The complaint states that a Microsoft investigator purchased computers with unauthorized copies of Windows XP from D&A on three occasions in 2011. The unlicensed software contains Microsoft trademarks and copyrighted works. Microsoft is seeking a declaration of infringement, an injunction, an accounting, an order impounding counterfeit copies of Microsoft software, damages, costs and attorney fees.

Practice Tip: Microsoft has named David Bell personally, the owner of D & B, as a defendant, alleging that he participated in and had a right to control the wrongful conduct. A corporate officer, director or shareholder is, as a general matter, personally liable for all torts which she authorizes or directs or in which she participates, even if she acted as an agent of the corporation and not on her own behalf.

April 18, 2012

Cosmetic Warriors Sues Lush Day Spa for Trademark Infringement of “LUSH”

By Overhauser Law Offices, LLC

Evansville; IN – Trademark attorneys for Cosmetic Warriors Limited of the United Kingdom filed a trademark infringement suit in the Southern District of Indiana alleging Lush Day Spa of Evansville, Indiana infringed trademark registration no. 3987808 for the mark LUSH which has been registered with the US Trademark Office.

The complaint states that Cosmetic Warriors operates a retail store in California and operates, www.lush.com, a website selling its bath, hair care, and beauty products, which are described as “made from natural, wholesome ingredients.” The complaint states that the Bartnicks operate an Evansville retail shop called Lush Day Spa. Cosmetic Warriors alleges it has been using the mark “Lush” since 1996 and alleges the mark is distinctive and is an indicator of Cosmetic Warrior’s brand. The complaint states that the defendants began operating the Lush Day Spa on July 18, 2011 and offers salon services and products. The complaint alleges the defendant operate a website at www.thelushdayspa.com and a facebook page under the same name. Cosmetic Warriors states that it has contacted the defendants and demanded they discontinue use of the Lush mark, but that the defendants have failed to discontinue. Cosmetic Warriors alleges the defendant’s use of “Lush” is virtually identical to its trademark and confusingly similar. The complaint makes claims of federal trademark infringement, unfair competition, deceptive consumer sales, and state law unfair competition and seeks an injunction, transfer of the domain name www.thelushdayspa.com, an accounting, damages, punitive damages, attorney fees and costs.

Practice Tip: The plaintiff seems very concerned with the defendant’s website, which is said to be a confusingly similar domain name, however, it has not alleged a cause of action for cybersquatting. The Anti-cybersquatting Consumer Protection Act of 1999 created a cause of action for registering, trafficking or using a domain name that is confusingly similar or dilutive to the trademark of another.

April 17, 2012

Southern District Grants Motion to Transfer Venue for Combined Public Communications in Patent Case Over Phone Service To Jails

By Overhauser Law Offices, LLC

Indianapolis; IN – [Note – Overhauser Law Offices, LLC, publisher of this site, represented Combined Public Communications, who prevailed in this matter]

Judge Jane E. Magnus-Stinson of the Southern District of Indiana has granted a motion to change venue in a patent infringement suit. Patent attorneys for Securus Technologies of Dallas, Texas, had filed a patent infringement lawsuit in the Southern District of Indiana alleging that Combined Public Communications (“CPC”), based in Kentucky, infringed Securus’s March 1, 2011 patent no 7,899,167 for “CENTRALIZED CALL PROCESSING.” The patent claims to provide “a centralized architecture for call processing” including voice over internet protocols (VOIP).

Securus’s patent lawyers alleged in the complaint that the litigants are competitors because they each provide “specialized call-processing and billing equipment and services for correctional institutions, direct local and long distance call processing for correctional facilities,” and other technologies relating to “Inmate Management Systems.”

The court’s order transferring venue notes that T-Netix, Inc., a company that is part of the Securus corporate family, filed a patent infringement suit against CPC in the Western District of Kentucky making similar patent infringement claims. Weighing the relevant factors, the court concluded that the interests of justice and convenience to the parties and witnesses favored a transfer of venue to the Western District of Kentucky.

Practice Tip: 28 U.S.C. § 1404(a) sets the standard for transfer of venue: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”

April 14, 2012

In Bloomberg’s online edition, I was quoted in their article entitled “Ultimate Fighting, Boxing on PayTV Spark ‘Pirate’ Lawsuits”:

By Overhauser Law Offices, LLC

Asked about the recent rise in lawsuits concerning PayTV events in bars and restaurants, I was quoted as follows:

“In my experience they tend to be owners of really small establishments,” Paul B. Overhauser, an attorney in Indianapolis who has represented hundreds of restaurants in piracy cases, said in an interview. “If there is a default judgment, it’s probably because the bar owner couldn’t afford an attorney.”

Overhauser said the sports promoters use the amount of those default judgments in pressuring other owners to settle. “They’ll say, ‘You better settle with us right away for $10,000 because this other one paid $150,000,'” he said. “If you’re a business owner and you get a letter like that, it’s pretty compelling if you don’t have a lawyer.”

April 12, 2012

Dish Network Sues Thomas Williams For Copyright Infringement Over Illegal Intercept Using Dark Angel

By Overhauser Law Offices, LLC

Indianapolis, IN – Copyright attorneys for DISH Network LLC of Englewood, Colorado, EchoStar Technologies LLC of Texas, and NagraStar LLC of Englewood, Colorado have filed a copyright infringement lawsuit in the Southern District of Indianaalleging that Thomas Williams of Coal City, Indiana infringed DISH’s copyrighted works by illegal satellite signal interception.

The complaint gives a detailed, technical description of a “pirate IKS television service” called Dark Angel. Apparently the Dark Angel service allows subscribers to intercept the DISH service without paying the license and subscription fees to DISH. The complaint alleges that Mr. Williams purchased subscriptions to the Dark Angel service on April 9 and July 19, 2010. The complaint makes claims of “circumventing an access control measure” and receiving satellite signals without authorization, both in violation of the Digital Millennium Act as well as one count of intercepting satellite signals in violation of the Electronic Communications Privacy Act.

Practice Tip: The complaint states that DISH learned of Mr. Williams identity through discovery in a lawsuit DISH has filed against Dark Angel. It states that DISH seized all of Dark Angel’s business records and gleaned the names of the end users from these business records.