Indiana Intellectual Property Law News

June 20, 2011

DIRECTV Sues Corner Bar & Grill For Copyright Infringement for Improper Interception Of NFL Games

Evansville, IN – Copyright lawyers for DIRECTV of California filed a copyright infringement lawsuit in the Southern District of Indiana alleging that Kevan Tally and Michael Schnell, owners of McGahery Enterprises, Inc., which operates the Corner Bar & Grill in Evansville, Indiana infringed copyrighted NFL games by illegal intercepted and unencrypted satellite signals.

The complaint alleges that on October 17, 2010, Mr. Schnell and Tally, displayed NFL games publicly at the Corner Bar and Grill without the authorization of DIRECTV. The complaint states that the Corner Bar did not have a paid DIRECTV subscription, yet received and unencrypted DIRECTV satellite signals in violation of the Cable Communications Act. DIRECTV claims the bar and its owners received financial benefit from the display of NFL games. DIRECTV is seeking statutory damages of $1000 to $10,000 for each violation and $10,000 to $100,000 for each willful violation as well as an injunction to prevent further display of illegal intercepted transmissions. Copyright attorneys for DIRECTV have also made a claim of civil conversion, alleging that the defendants intentionally and wrongfully deprived DIRECTV of proprietary interests.

Practice Tip: Most satellite signal providers employ encryption to limit reception to certain groups, such as paying subscribers. If an individual has a “residential” agreement with a satellite provider, this does not give them the right to display the performance in a public setting like a bar or restaurant. Both the satellite signal providers and the owners of the copyrighted content are typically quite aggressive about enforcing their copyrights.

June 17, 2011

Medical Monitoring and Paging LLC Sues Philips Electronics for Patent Infringement of System and Method for Automatic Critical Event Notification.

By Overhauser Law Offices, LLC

Indianapolis; IN – Patent lawyers for Medical Monitoring and Paging LLCof Newport, California filed a patent infringement lawsuit in the Southern District of Indiana alleging Philips Electronics North America Corporation of Andover, Massachusetts, Oridion Capnography, Inc. of Needham, Massachusetts, IWT Solutions, Inc. of Evansville, Indiana, and Oxford Biosignals, Inc. of Indianapolis,Indiana infringed Patent No. 5,942,986, System and method for automatic critical event notification, which has been issued by the US Patent Office.

The complaint alleges that each defendant manufactures, provides, sells, offers for sale, imports and/or distributes products and services that infringe the patent at issue, which is described as “a novel and clinically important critical event notification system that can continuously monitor patient statistics and lab data to detect complex critical events[.]” The complaint states that each defendant has developed and now sells its own system performing similar functions and that each defendant’s system infringes Medical Monitoring’s patent.

Practice Tip: The plaintiff here has alleged that each defendant separately developed and markets an infringing system. While two of the defendants are Indiana companies, the other two defendants are not located in Indiana, and the complaint does not state a basis for bringing the claims against them in the Indiana district court.

June 16, 2011

Coach Files Two Trademark and Copyright Infringement Lawsuits in Northern District Over Knock-Off Coach Items

By Overhauser Law Offices, LLC

South Bend; IN – Trademark and copyright lawyers for Coach, Inc. and Coach Services, Inc. of New York, New York filed two trademark infringement lawsuits in the Northern District of Indiana.

In the first lawsuit, intellectual property attorneys have alleged that Diva’s House of Style and Elizabeth “Beth” Bond of Elkhart, Indiana infringed fifty-one marks that have been registered with the US Trademark Office. The complaint also alleges that Diva’s House and Ms. Bond infringed the copyrighted works LEGACY STRIPE and SIGNATURE C, which have been registered by the US Copyright Office. The complaint alleges that Diva House and Ms. Bond have been designing, manufacturing, and/or selling “studied imitations” of Coach products that bear the Coach trade marks, trade dress and copyrighted works. Coach alleges that Diva House and Ms. Bond advertised the knock-off products on Facebook. A Coach representative used e-mail and phone to correspond with the defendants and purchased a purse from her. The representative then determined that the purse was not a genuine Coach purse and was a knock-off of inferior quality. The complaint makes claims of trademark counterfeiting, trademark infringement, trade dress infringement, false designation of origin and false advertising, trademark dilution, copyright infringement, common law trademark infringement, unfair competition, forgery and counterfeiting. 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-00253-JD-CAN.

In the second lawsuit, intellectual property attorneys allege that Lyn-Maree’s LLC of Auburn, Indiana, and its owners, Emma Taylor and Lynn Siples, infringed fifty-one marks that have been registered with the US Trademark Office. The complaint also alleges that Lyn-Maree’s and its owners infringed the copyrighted works LEGACY STRIPE and SIGNATURE C, which have been registered by the US Copyright Office. The complaint states that a Coach representative purchased a hand bag, wallet and sunglasses labeled “Coach” at the Lyn Maree’s retail store. The items were examined by Coach and determined to be not genuine Coach items, but knock-off items of inferior quality. The complaint makes claims of trademark counterfeiting, trademark infringement, trade dress infringement, false designation of origin and false advertising, trademark dilution, copyright infringement, common law trademark infringement, unfair competition, forgery and counterfeiting.

Practice Tip: Coach has a reputation for vigorously defending their intellectual property. Coach filed two trademark lawsuits in the Northern District of Indiana in April of this year, which were reported on in Indiana Intellectual Property Law News. It seems that a Coach representative is monitoring businesses in the Northern District of Indiana and purchasing knock-off goods that then become the basis of these lawsuits.

June 15, 2011

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

By Overhauser Law Offices, LLC

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.”