Indiana Intellectual Property Law News

June 15, 2011

Indiana Federal Court Rules EA Can Use “Dillinger” in Its Video Games

Indianapolis, IN – Intellectual property lawyers for Electronic Arts, Inc., (“EA”) of Redwood City, CA, emerged victorious when Judge Jane E. Magnus-Stinson of the Southern District of Indiana ruled that Indiana’s right of publicity statute and federal trademark law do not prevent EA from using the word “Dillinger” and other identifying characteristics of infamous depression-era bank-robber John Dillinger in its video games.

The plaintiff Dillinger, LLC, sued EA for allegedly including unauthorized references to John Dillinger in its series of video games based upon The Godfather novel and film series. In its complaint, among other things, Dillinger, LLC, claimed that it registered two U.S. trademarks for “John Dillinger” and that, under Indiana law, it had the right to control Mr. Dillinger’s “personality” rights for commercial purposes – that is, his “name, voice, signature, photograph, image, likeness, distinctive appearance, gestures, [and] mannerisms.” Dillinger, LLC, alleged to have acquired those publicity rights by assignment from the heirs of Mr. Dillinger.

Concluding that Indiana’s right of publicity law, which took effect in 1994, is not retroactive and does not apply to personalities who died before its enactment, the court found that the plaintiff failed to state a right of publicity claim. Moreover, Judge Magnus-Stinson opined that “literary works” exception in the Indiana statute should be read broadly in light of the First Amendment and cover video games.

In a separate order ruling on cross-motions for summary judgment, the court accepted EA’s First Amendment defense to its use of the John Dillinger name, finding such use has at least some relevance to the plot of the game and was not “explicitly misleading” with regard to the question of endorsement by Dillinger, LLC.

Practice Tip: The right of publicity is grounded in state law, and Indiana has an expansive right of publicity statute. Indiana law provides recognition of the right for 100 years after death and protects not only name, image and likeness, but also signature, photograph, gestures, distinctive appearances, and mannerisms.

The matter was assigned Case No. 1:09-cv-01236-JMS-DKL.
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June 14, 2011

Heartland Recreational Vehicles LLC Sues Forest River Inc. for Patent Infringement of Travel Trailer Turning Radius

By Overhauser Law Offices, LLC

South Bend, IN – Patent lawyers for Heartland Recreational Vehicles, LLC of Elkhart, Indiana filed a patent infringement lawsuit alleging Forest River, Inc. of Elkhart, Indiana infringed Patent No. 7,878,545, Travel trailer having improved turning radius, which has been issued by the US Patent Office.

Both Heartland and Forest River sell travel trailers in Elkhart, Indiana. The ‘545 patent was issued to Heartland on February 1, 2011. The complaint alleges that Forest River is making, using, selling or offering for sale travel trailers, specifically the Silverback product, that infringe Heartland’s patent. Heartland seeks a declaration of infringement, an injunction, damages, treble damages, attorney’s fees and costs.

This case has been assigned to Judge Jon E. DeGuilio and Magistrate Judge Christopher A. Nuechterlein in the Northern District of Indiana, and assigned Case No. 3:11-cv-00250-JD –CAN.

Practice Tip: The Patent Act, 35 U.S.C. 287(a), does not allow a patent holder to collect damages from an infringer unless the patentee has given notice of the patent, normally by affixing the patent number on the product or packaging. In this case, the patent was issued only five months ago so there may be an issue about whether Forest River had notice. The Patent Act, 35 U.S.C. 287(a), however, provides that the filing of a patent infringement lawsuit constitutes the required notice.
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June 14, 2011

Boy Racer, Inc. Sues 23 Indiana John Does for Copyright Infringement of an Adult Video Via BitTorrent

By Overhauser Law Offices, LLC

New Albany, IN – Copyright lawyers for Boy Racer, Inc. of North Bellmore, New York filed a copyright infringement lawsuit in the Southern District of Indiana alleging 23 Indiana John Does infringed the copyrighted work, a video called LA PINK, which has been registered by the US Copyright Office.

Boy Racer is an adult entertainment company that produced the video at issue. The complaint alleges that the 23 individuals have unlawfully reproduced and/or distributed the copyrighted video using the BitTorrent “distribution protocol”. The complaint states that Hard Drive has the Internet Protocol address (“IP address”) of these 23 individuals and will learn their identities during discovery. Boy Racer has made claims of copyright infringement and civil conspiracy. The complaint seeks an order impounding all copies of the video, damages, and litigation expenses.

This case has been assigned to Judge Sarah Evans Barker and Magistrate Judge William G. Hussmann in the Southern District of Indiana, and assigned Case No. 4:11-cv-00070-SEB-WGH.

Practice Tip: As Indiana Intellectual Property Law News reported last month, the adult entertainment industry is using a copyright infringement litigation strategy to target online file sharing. This suit is the second filed in Indiana federal courts so far, and like the earlier suit, it targets file sharing via the BitTorrent program. Typically, the plaintiff will engage in discovery to find out identities of the persons associated with the IP addresses alleged to have infringed the copyrighted work. Once these identities are revealed to the plaintiff, the plaintiff typically reaches out to the alleged infringers to try to settle the case. If a settlement is not reached, the plaintiff will pursue further court action.

June 14, 2011

First Time Videos LLC Sues 18 Indiana John Does for Copyright Infringement of an Adult Video via BitTorrent

By Overhauser Law Offices, LLC

New Albany, IN -Copyright lawyers for First Time Videos LLC of Nevada filed a copyright infringement lawsuit in the Southern District of Indianaalleging 18 Indiana John Does, whose names and addresses are unknown, infringed the copyrighted work “FTV – TIFFANY” which has been registered by the US Copyright Office.

First Time Videos is an adult entertainment company that produced the video at issue. The complaint alleges that the 18 individuals have unlawfully reproduced and/or distributed the copyrighted video using the BitTorrent “distribution protocol”. The complaint states that the plaintiff has the Internet Protocol address (“IP address”) of these 18 individuals and will learn their identities during discovery. First Time Videos has made claims of copyright infringement and civil conspiracy. The complaint seeks an order impounding all copies of the video, damages, and litigation expenses.

Practice Tip: This is the third lawsuit filed in the Southern District of Indiana alleging copyright infringement of an adult video using the BitTorrent program. Indiana Intellectual Property Law News has reported here on the Boy Racer case and the Hard Drive Productions case. All three lawsuits have been filed by Chicago law firm Steele Hansmeier.

June 13, 2011

AirFx LLC Sues Custom Cycle Control Systems, Inc., J.D. Braun, Dr. V-Twin, Inc. and M.C. Advantages for Patent Infringement of Motorcycle Suspension

By Overhauser Law Offices, LLC

Indianapolis, IN – Patent lawyers for AirFx LLC of Indianapolis, Indiana filed two patent infringement lawsuits in the Southern District of Indiana alleging Custom Cycle Control Systems, Inc. of Las Vegas, Nevada, J.D. Braun, of Los Angeles, California, doing business as Goldenstate Custom Cycles, Dr. V-Twin, Inc. of Sherman Oaks, California, and M.C. Advantages, of Grimes, Iowa, infringed Patent No. 7,559,396 B2, Motorcycle air suspension system, which has been issued by the US Patent Office.

In the first case, the complaint alleges that AirFx received a defective product made by Custom Cycle Control Systems from a customer, who believed he had purchased an AirFx product that utilized the patented technology. AirFx claims that Custom Cycle has been manufacturing and selling products that infringe its patent and that the inferior products of Custom Cycle have damaged the reputation of AirFx. This case has been assigned to Chief Judge Richard L. Young and Magistrate Judge Tim A. Baker in the Southern District of Indiana, and assigned Case No. 1:11-cv-00803-RLY-TAB.

In the second patent infringement suit, the complaint alleges that J.D. Braun created a motorcycle suspension system called the “Shotgun Shock” that infringes AirFx’s patent. The complaint alleges that all three defendants manufacture and sell the infringing “Shotgun Shock.” AirFx has made a claim of patent infringement against Braun, Dr. V-Twin and M.C. Advantages and an unfair competition claim against J.D. Braun, claiming that Braun has falsely told customers that he invented the patented technology.

Practice Tip: The claims alleged by AirFx seem to indicate that there is some confusion in the marketplace about the origin and inventor of the patented motorcycle suspension technology. In addition to the patent infringement claims, AirFx might consider adding trademark-related claims if any of the defendants are using AirFx’s trademarks for their sales.

June 9, 2011

U.S. Supreme Court Affirms Strong Presumption of Patent Validity in Microsoft v. i4i LP

By Overhauser Law Offices, LLC

Washington, D.C. – The United States Supreme Court has issued a decision in Microsoft v. i4i LP, against Microsoft and unanimously reaffirming that patents are presumed to be valid at the standard of clear and convincing.

Microsoft had argued for a lower standard of the presumption of validity. The decision will require Microsoft to pay i4i over $290 million in damages.

Patent attorneys for i4i brought this suit against Microsoft alleging that Microsoft infringed i4i’s patent for a method of editing computer documents. Microsoft used the patented technology in its Microsoft Word program.

June 9, 2011

Alcon Research Sues Watson Laboratories Inc for Patent Infringement of Allergy Eye Drops

By Overhauser Law Offices, LLC

Indianapolis, IN – Patent lawyers for Alcon Research Ltd of Fort Worth, Texas, Alcon Pharmaceuticals LTD of Switzerland, and Kyowa Haddo Kirin Co. of Japan filed a patent infringement in alleging Watson Laboratories Inc and Watson Pharma, Inc. of Parsippany, New Jersey, and Watson Laboratories, of Corona, California, infringed the following patent prior to the expiration:

Patent No. 5,641,805, Topical ophthalmic formulations for treating allergic eye diseases, Patent No. 6,995,186, Olopatadine formulations for topical administration and Patent No. 7,402,609, Olopatadine formulations for topical administration, which have been issued by the US Patent Office.

The Complaint alleges that Watson has filed an Abbreviated New Drug Application (“ANDA”) with the Food and Drug Administration “seeking approval to manufacture and sell a generic version of PATADAY™ ophthalmic solution,” a drug product that is covered by several patents owned by Alcon. The Complaint states that Watson sent a letter to Alcon on April 27, 2011 notifying Alcon of Watson’s ANDA and intent to manufacture and sells products covered by the ADNA. According to Alcon, Watson’s April 27 letter and ANDA stated that Alcon’s patents are invalid, unenforceable and/or will not be infringed. Alcon has made three claims of patent infringement and three claims for a declaratory judgment of infringement. Alcon’s patent attorneys are seeking an injunction, declaratory judgment, attorney’s fees and costs. Alcon has alleged that the basis for jurisdiction of the Southern District of Indiana is that Watson markets and sells drug products nationwide and in Indiana.

Practice Tip: Alcon’s patent attorneys filed this case before apparently before Watson actually sold any allegedly infringing products. Hence, they are seeking an injunction to prevent any potentially infringing sales as well as a declaration judgment of infringement, rather than monetary damages. These remedies, if granted, could prevent monetary damages that could occur if infringing products are sold. The Patent Act, 35 U.S.C. § 283, allows a court with jurisdiction to grant an injunction “to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.”

June 9, 2011

Gabbard Sues VMB LLC, Music Factory Direct for Copyright Infringement of Music Web Graphic

By Overhauser Law Offices, LLC

South Bend, IN – Copyright lawyers for Joel Gabbard of Fort Wayne, Indiana filed a copyright infringement in alleging VMB LLC, doing business as Music Factory Direct, and Vento LLC, both of Cassopolis, Michigan, infringed Copyright Registration No. VA0001734862, WEB GRAPHICS; which has been registered by the US Copyright Office.

The Complaint alleges that Mr. Gabbard and VMB entered a contract where Mr. Gabbard granted a license to VMB to use the copyrighted work in VMB’s advertisements on eBay, amazon.com, and ChannelAdvisor. The license contract stated that the graphics were to “be used exclusively for the above mentioned projects. All alterations, updates, and revisions must be first approved by the author.” The Complaint alleges that on August 22, 2010 VMB sent out a promotional e-mail utilizing Mr. Gabbard’s copyrighted work. Mr. Gabbard’s copyright attorneys claim this e-mail was not authorized by the license agreement and therefore was copyright infringement. Mr. Gabbard seeks an injunction, damages, costs, attorney fees, for an order impounding all copies made or used and has requested “The Defendants be required to notify all present and prospective customers of the infringement and that the proper ownership of the materials is Mr. Gabbard.”

Practice Tip: In addition to injunction and damages, this plaintiff is also seeking an impounding order and for the defendants to notify customers that it has infringed the plaintiff’s copyright. The applicable copyright law, 17 U.S.C. § 503, does allow for a court issue an order impounding all copies of the copyrighted work. The plaintiff’s request that customers be informed of the infringement, however, would be an unusual remedy and not specifically provided for in the copyright laws.

June 7, 2011

Richard N. Bell Files Two Copyright Infringement Lawsuits Regarding Photographs of Indianapolis

By Overhauser Law Offices, LLC

Indianapolis; IN – Attorney Richard N. Bell of Indianapolis, Indiana filed two copyright infringement lawsuits regarding photographs of Indianapolis that Mr. Bell took. The first copyright infringement suit alleges Cameron Taylor and Taylor Computer Solutions of Indianapolis, Indiana, Event Premium Tickets of North Fort Myers, Florida, Fred O’Brien and Insurance Concepts of Plainfield, Indiana, Premium Sport Tours of Australia, ForeclosureWarehouse.com, and The Fixx Hair Studio of Indianapolis infringed Mr. Bell’s copyrighted work Indianapolis Photo. Mr. Bell alleges that the defendants used the photograph for commercial use without authorization and without payment to Mr. Bell. On his copyright infringement claim, Mr. Bell seeks an injunction, damages, a declaration of violation of Mr. Bell’s copyright, costs, and attorney fees. Mr. Bell has also made a claim of theft, alleging “the Defendant has knowingly or intentionally exerts unauthorized control over property of the Plaintiff[.]” On the theft count, Mr. Bell seeks actual and punitive damages, costs and attorney fees.

The second copyright infringement suit alleges Indy Cleaning Pros and James and Karen Allan of Indianapolis, Indiana infringed Mr. Bell’s copyrighted work INDIANAPOLIS SKYLINE PHOTO. Neither photo has been registered by the US Copyright Office. The complaint alleges that Indy Cleaning Pros and the Allans have used the copyrighted photo in advertising material without Mr. Bell’s authorization and without compensating Mr. Bell. On his copyright infringement claim, Mr. Bell seeks an injunction, damages, a declaration of violation of Mr. Bell’s copyright, costs, and attorney fees. Mr. Bell has also made a claim of theft, alleging “the Defendant has knowingly or intentionally exerts unauthorized control over property of the Plaintiff[.]” On the theft count, Mr. Bell seeks actual and punitive damages, costs and attorney fees.

Practice Tip: In this case, in addition to claiming copyright infringement, the Plaintiff has made claims of theft based upon allegations of unauthorized use of the photographs. In 1985, however, the U.S. Supreme Court held in Dowling v. United States, 473 U.S. 207 (1985), that a copyright infringer could not be criminally charged under the federal criminal theft statute. The Court noted “The infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use.”

June 7, 2011

FirePASS IP Holdings Sues Bombardier, Inc for Patent Infringement of Hypoxic Fire Prevention and Suppressive Systems in CS300 Aircraft Sold to Republic Airways

By Overhauser Law Offices, LLC

Indianapolis, IN – Patent lawyers for FirePASS IP Holdings and FirePASS Corporation of New York, New York filed a patent infringement lawsuit alleging Bombardier, Inc. of Montreal, Canada, and Bombardier Aerospace Corporation, of Richardson, Texas, infringed Patent Numbers RE 40,065, HYPOXIC FIRE PREVENTION AND FIRE SUPPRESSION SYSTEMS FOR COMPUTER CABINETS AND FIRE-HAZARDOUSINDUSTRIAL CONTAINERS 6,418,752, HYPOXIC FIRE PREVENTION AND FIRE SUPPRESSION SYSTEMS AND BREATHABLE FIRE EXTINGUISHING COMPOSITIONS FOR HUMAN OCCUPIED ENVIRONMENTS, Patent No. 6,314,754,HYPOXIC FIRE PREVENTION AND FIRE SUPPRESSION SYSTEMS FOR COMPUTER ROOMS AND OTHER HUMAN OCCUPIED FACILITIES, Patent No.7,207,392, METHOD OF PREVENTINGFIRE IN COMPUTER ROOM AND OTHER ENCLOSED FACILITIES which have been issued by the US Patent Office.

The complaint alleges that Bombardier sells and offers to sell products that infringe FirePASS’s patents. Specifically, FirePASS alleges that Bombardier has a contract to sell 40 CS300 aircraft to Republic Airways of Indianapolis, valued at $3.2 billion. FirePASS alleges that the aircraft contain flammability reduction means that infringe FirePASS’s patented technology. The Federal Aviation Administration has implemented new regulation requiring additional flammability reduction means to prevent fuel tank fires in aircraft. FirePASS seeks a declaratory judgment of infringement, damages and an injunction.

Practice Tip: According to a press release by FirePASS, the FAA adopted FirePASS’s technology and has required its use to protect fuel tanks on commercial aircraft. In this case, FirePASS claims the patent infringement occurred either “literally or under the doctrine of equivalents.” Apparently, FirePASS is taking the position that any new aircraft made that comply with the FAA’s new regulation would infringe FirePASS’s patents. The Doctrine of Equivalents “allows a court to hold a party liable for patent infringement even though the infringing device or process does not fall within the literal scope of a patent claim, but nevertheless is equivalent to the claimed invention.” The legal test, articulated in Warner-Jenkinson Co. v. Hilton Davis Chem. Co. (1997), is whether the difference between the limitation in the accused device and the limitation literally recited in the patent claim is “insubstantial.”