Indiana Intellectual Property Law News

July 7, 2011

Update: Righthaven Controversial Copyright Infringement Case Dismissed, Countersued for Legal Fees

Las Vegas, NV — In May, Indiana Intellectual Property Law News reported on Righthaven, LLC, a controversial company that claims to enforce copyrights online. One of the cases Righthaven pursued has recently been in the news again and illustrates the risk of pursuing copyright lawsuits that are not well founded. Righthaven filed a copyright infringement against attorney Thomas DiBiase, a former federal prosecutor. Righthaven claimed DiBiase committed copyright infringement when he posted a news story from the Las Vegas Review-Journal on his blog No Body Murder Blog. In late June, U.S. District Court Judge Roger Hunt of the District of Nevada dismissed the case for lack of standing. It seems that Righthaven did not fully own the copyrighted work and therefore had no standing to sue.

In early July, Mr. DiBiase countersued for $119,000 in legal fees, as reported by Vegasinc.com. Other defendants who have succeeded in getting Righthaven lawsuits dismissed have already been awarded attorneys fees totally over $35,000. As Vegasinc.com reports, many of the early Righthaven lawsuits were settled, but the defendants who have fought the suits have largely won on either standing or under the fair use doctrine.

Practice Tip: The case illustrates the very real risk that Righthaven faced in filing its copyright infringement cases – that it would be forced to pay the attorney fees of those who successfully defended their cases. It also underscores the importance of having an experienced intellectual property attorney who will take an aggressive defense

July 6, 2011

Century 21 Real Estate LLC Sues Destiny Real Estate Properties LLC for Trademark Infringement of Service Mark

By Overhauser Law Offices, LLC

South Bend, IN – Trademark lawyers for Century 21 Real Estate LLC Parsippany, New Jersey filed a trademark infringement lawsuit in the Northern District of Indiana alleging Destiny Real Estate Properties LLC, f/d/b/a Century 21 Destiny Real Estate of Lowell, Indiana and Daniel Sutton, the owner of Destiny Real Estate Properties LLC, infringed Century 21’s trademarks and service marks.

According to the complaint, Destiny was a Century 21 real estate sales franchise beginning in June 2007. Century 21 alleges that Destiny failed to make payments of franchise fees in the amount of approximately $113,000 due under the franchise agreement, and as a result Century 21 terminated the franchise agreement on March 18, 2011. Century 21’s trademark attorneys allege that Destiny continued to use the Century 21 marks following the termination of the franchise agreement, including online at www.century21destiny.com. The complaint makes claims of trademark infringement, false designation of origin/false advertising, trademark dilution, common law unfair competition, breach of contract, unjust enrichment, and for an accounting.

Practice Tip: When a franchise agreement terminates, typically the franchisee must promptly cease using and return all signs and other equipment containing trademarks. Failure to do so may result in a lawsuit for breach of contract as well as trademark infringement.

June 30, 2011

Indiana Patent Attorneys Obtain 125 Patents for Indiana Companies in June, 2011

By Overhauser Law Offices, LLC

Indiana patent attorneys obtained issuance of the following 125 patents from the US Patent Office to persons and businesses in Indiana in June, 2011:

	PAT. NO.	Title
1	D640,771	Firefighting nozzle
2	D640,754	Rocker propelled scooter
3	D640,556	Dispensing closure
4	7,969,654	Volume Fresnel zone plates fabricated by laser direct writing
5	7,969,275	Fuse assembly with integrated current sensing

June 30, 2011

169 Trademark Registrations Issued to Indiana Companies in June, 2011

By Overhauser Law Offices, LLC

The US Trademark Office issued the following 169 trademark registrations to persons and businesses in Indiana in June, 2011, based on applications filed by Indiana Trademark Attorneys:

	Reg. Number	Mark	Click to View
1	3,985,899	FOILMASTIC	VIEW
2	3,985,847	{Detail}	VIEW
3	3,985,606	AERO-FLEX	VIEW
4	3,985,421	MEAT SEEKER	VIEW
5	3,985,320	KWIKPEN	VIEW

June 30, 2011

Update to Hard Drive Productions BitTorrent Copyright Infringement Case: John Doe Letters Ask Court Not to Allow Discovery

By Overhauser Law Offices, LLC

Indianapolis, IN – Several anonymous letters have been sent to the Southern District of Indiana regarding the Hard Drive Productions Copyright infringement case, all opposing any discovery attempts in the case that might reveal the identities of persons alleged to have illegally downloaded pornographic videos. Intellectual Property Law News has reported recently on three copyright infringement lawsuits filed in the Southern District of Indiana involving file sharing of adult entertainment videos via BitTorrent: the Hard Drive Productions case, the Boy Racer case and the First Time Videos case.

In an unusual procedural move, three anonymous letters, signed “John Doe,” were sent to the Court to protest the lawsuit and pre-emptively attack potential discovery efforts by the plaintiff that might reveal the identities of the “John Does,” who are accused of illegally sharing adult videos using BitTorrent. The first letter calls the case “wrongful harassment of internet subscribers” and states “Mr. Steele and lawyers attempting to the same scheme of intimidation will eventually be in contact with me to demand several thousand dollars not to sue ME for downloading this pornography file if Your court permits subpoena[.]” It points out the ease at which I.P. addresses could be forged and that wireless internet service can be used by a person other than the owner of the I.P. address, a concern that has been reported in Time Magazine.

A second letter points out to the court that in another similar case, discovery requests were denied by the Central District Court of Illinois and the Northern District of California. One court order attached to the letter says “The infringer might be the subscriber, someone in the subscriber’s household, a visitor with her laptop, a neighbor, or someone parked on the street at any given moment.”

Hard Drive filed a response to one of the letters, stating: “The Court is fully capable of protecting each defendant’s due process rights and ascertaining the quality of evidence presented at this proceeding. The anonymous letter expresses fear to the contrary, but these fears are not a good justification for curtailing discovery of the identities of those who have conspired to pirate copyrighted material.”

Practice Tips: We note the letters were sent from anonymous “John Does.” Had the writers identified themselves, they would have opened themselves to service of process and risked giving up several defenses including personal jurisdiction, which is an issue raised by one letter.

June 27, 2011

Williams Industries Inc. Sues Trevis Tumbler Company to Invalidate Trademark on Tumblers

By Overhauser Law Offices, LLC

Indianapolis, IN – Trademark lawyers for Williams Industries Inc. of Shelbyville, Indiana filed a trademark lawsuit in the Southern District of Indiana seeking to invalidate trademark registration no. 3,081,577 and trademark registration no. 2,862,871 for the mark TRITAN DOUBLE WALL TRUMBLER, which have been registered with the US Trademark Office and are owned by Trevis Tumbler Company of Venice, Florida.

The complaint states that Williams manufactures a line of plastic drinking tumbler, and that Williams has a business relationship with Hit Promotions, Inc. whereby Hit purchases and sells the Williams tumbler. Hit received a cease and desist letter from Tervis in June 2011, stating that Tervis owned the trademarks at issue and claiming that the Williams tumblers infringe the trademarks. In response, Hit stopped selling Williams’ tumbers. Williams claims the trademarked design is simply a “horizontal line” and similar designs have been used on plastic tumblers from various manufacturers for many years. Williams alleges that another company, Signature USA of Minnesota, has sold tumblers with the trademarked design for over 25 years. Williams is seeking a judgment invalidating and rendering unenforceable the ‘577 and ‘871 trademarks, claiming that Tervis made false statements in its trademark application regarding Tervis’s exclusive use of the “horizontal line” design and that the design is generic. Williams’ trademark attorneys have also made claims of tortuous interference with business relationship and common law unfair competition.

According to the Indianapolis Business Journal, Tervis’s tumbler business has grown to $75 million.

Practice Tip: The Lanham Act, 15 U.S.C. § 1119, does provide the federal courts with the power “to order the cancelation of registrations, in whole or in part, restore canceled registrations, and otherwise rectify the register with respect to the registrations of any party to the action. Decrees and orders shall be certified by the court to the Director, who shall make appropriate entry upon the records of the Patent and Trademark Office, and shall be controlled thereby.”

June 24, 2011

Patent Reform Passes U.S. House of Representatives

By Overhauser Law Offices, LLC

Washington, D.C. – The United States House of Representatives has passed H.R. 1249, the Leahy-Smith American Invents Act, which is said to be the most dramatic change to patent law since the 1950s. The Senate’s patent reform bill passed in March, and Indiana Intellectual Property Law News blogged about the bill here. Funding of the US Patent and Trademark Office was a continuous issue in the debate, and this issue will have to be addressed by the Senate before the bill can go to President Obama. The House and Senate will now conference to attempt to consolidate their bills, and additional votes may be needed before the reform goes to President Obama. The White House released a statement congratulating the House on the bill.

The vote was 304 in favor and 117 opposed. Indiana’s Representatives Buschon, Carson, Donnelly, Pence, Rokita, Stutzman, and Young voted in favor of the bill while Representatives Burton and Visclosky voted against the bill. A webcast of the hearing on this bill is available here.

Practice Tip: While many have praised this legislation, some patent attorneys expect that a great deal of litigation will be necessary in the coming years to flush out changes in the patent laws.

June 23, 2011

Bear Archery, Inc. Sues Impact Archery, Inc. for Patent Infringement of Bow Sight with Fiber Optics.

By Overhauser Law Offices, LLC

Evansville, IN – Patent lawyers for Bear Archery, Inc. of Evansville, Indiana, filed a patent infringement lawsuit alleging Impact Archery, Inc. of Alpharetta, Georgia, infringed Patent Nos. 7,159,325 and 7,343,686, both called, BOW SIGHT WITH FIBER OPTICS which has been issued by the US Patent Office.

Bear Archery owns the rights to the ‘325 and ‘686 patented bow sights. The Compliant alleges that Impact Archery “has manufactured and continues to manufacture, use, sell, offer to sell and distribute fiber optic sights which infringe certain claims of the Patents-In-Suit.” Bear Archery seeks a declaratory judgment, injunction, impounding order, damages, costs, and attorney’s fees.

This case has been assigned to Chief Judge Richard L. Young and Magistrate Judge William G. Hussmann in the Southern District Court, and assigned Case No. 3:11-cv-00079-RLY-WGH.

Practice Tip: Bear Archery has been aggressive in defending its patent rights, and appears to have been involved in about ten patent infringement lawsuits in the Southern District of Indiana since 2007.
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June 22, 2011

Update to Harvest Scents v. KMI Jury Trial: Settlement Reached Before Case Sent to Jury

By Overhauser Law Offices, LLC

Indianapolis, IN – In May, Indiana Intellectual Property Law News blogged about the jury trial in the copyright infringement case Harvest Scents v. KMI. The jury trial began on May 2, 2011 in the Southern District of Indiana and was presided over by Senior Judge Larry J. McKinney. According to PACER, on May 9^that the conclusion of the presentation of evidence on day six of the jury trial, the Court heard several additional motions. The plaintiff moved for a judgment as a matter of law, which Judge McKinney denied. At that point, rather than waiting for a jury verdict, the parties reached a settlement, and the jury was dismissed.

According to PACER, on June 22, 2011, the court approved a joint stipulation of the parties regarding settlement and dismissed the case with prejudice. The terms of the settlement appear to be confidential.

June 20, 2011

Indian Industries Seeks Non-Infringement Declaration over Tethered Ball Practice Device Patent Owned by Swingaway Sports Products

By Overhauser Law Offices, LLC

Evansville; IN – Patent lawyers for Indian Industries, Inc. of Evansville, Indiana filed a patent infringement lawsuit in the Southern District of Indiana seeking a declaratory judgment that it is not infringing Patent No. 5,795,250 Tethered ball practice device, which has been issued by the US Patent Office and is assigned to SwingAway Sports Products, Inc. of Lubbock, Texas

The complaint states that the patent lapsed in September, 2010 due to failure to pay the required maintenance fee. Indian Industries, doing business as Escalade Sports, learned of the lapse in November 2010 and began developing a product similar to the patented technology, which culminated in sales and marketing of a product called the Springer Trainer batting trainer. The complaint states Escalade Sports marketed the new product at a trade show on June 18, 2011. The owner of SwingAway observed the new product, approached Escalade employees and alleged that the new product infringed the ‘250 patent. On that date, SwingAway contacted the US Patent Office and paid the fee for the ‘250 patent. The complaint alleges that SwingAway partners with Mid-America Sports Advantage in Jasper, Indiana.

Practice Tip: Escalade Sports claims it is entitled to the defense of absolute intervening rights, 35 USC 41(c)(2). That provision does provided that anyone who begins using, manufacturing or selling a product using the patented technology during the period when the patent has lapsed will generally not be liable for patent infringement. The court, in such cases, may allow the person to continue utilizing the patented technology, even if the patent maintenance fee is then paid.