Indiana Intellectual Property Law News

August 29, 2019

Gatorade’s Use of the Term “Sports Fuel” Protected by Fair Use

Attorneys for Plaintiff-Appellant, SportFuel, Inc. (“SportFuel”), of Chicago, Illinois, originally filed suit against Defendants-Appellees, PepsiCo, Inc. (“Pepsi”) and The Gatorade Company (“Gatorade”) (collectively the “Appellees”), for trademark infringement in the United States District Court for the Northern District of Illinois, Eastern Division. After the District Court granted summary judgment for Gatorade and Pepsi, SportFuel appealed to the United States Court of Appeals for the Seventh Circuit. Circuit Judge Kanne wrote the opinion affirming the grant of summary judgment by the District Court.

SportFuel provides personalized nutrition services to professional and amateur athletes and sells its own brand of dietary supplements. SportFuel registered two trademarks for “SportFuel” the first of which was registered for “food nutrition consultation, nutrition counseling, and providing information about dietary supplements and nutrition.” Pursuant to 15 U.S.C. § 1065, the first registration became “incontestable” in 2013. The second registration for “SportFuel” was for “goods and services related to dietary supplements and sports drinks enhanced with vitamins.”

Gatorade, now a household name, was created in 1965. Although Gatorade is known for its traditional sports drinks, it also sells customizable sports drinks for individual professional athletes and other sports nutrition products. Starting in 2013, Gatorade began describing and marketing its products as “sports fuels” and registered the trademark “Gatorade The Sports Fuel Company” in 2016 with the United States Patent and Trademark Office (“PTO”). During the registration process, “Gatorade disclaimed the exclusive use of ‘The Sports Fuel Company’ after the PTO advised the company that the phrase was merely descriptive of its products.”

August 22, 2019

Design Patents Protect Spare Parts For Vehicles

By Overhauser Law Offices, LLC

This case, originally filed in the United States District Court for the Eastern District of Michigan on claims of patent infringement, was brought on appeal in the United States Court of Appeals for the Federal Circuit. The Court of Appeals issued an opinion affirming the district court’s summary judgment in favor of Defendant-Appellee, Ford Global Technologies, LLC (“Ford”), and against Plaintiff-Appellant, Automotive Body Parts Association (“Automotive”). The originally sealed opinion was issued on July 11, 2019 but was unsealed in full on July 23, 2019.

Ford owns U.S. Patent No. D489,299 (the “D’299 Patent”) and U.S. Patent No. D501,685 (the “D’685 Patent”) for “Exterior of Vehicle Hood” and “Vehicle Head Lamp”, respectively. These design patents were invented by artists that allegedly selected part designs for the Ford F-150 truck on based on aesthetic appearance alone and not a functional purpose. Automotive is comprised of a group of companies that distribute automotive parts.

Conflict between Automotive and Ford allegedly occurred when Ford accused several Automotive members of infringing the D’299 and D’685 Patents, among others, before the International Trade Commission (“ITC”). The administrative law judge in the ITC proceedings ruled that “‘respondents’ [invalidity] defense that the asserted patents do not comply with the ornamentality requirement of 35 U.S.C. § 171 has no basis in the law’ and that ‘there is no legal basis for respondents’ assertion of [unenforceability based on] either the patent exhaustion or permissible repair doctrines’”. The ITC action settled after the administrative law judge’s ruling.

August 16, 2019

Indiana Copyright Litigation: Columbus North High School’s Football Coach Bless and Bartholomew Consolidated School Corporation Sued for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Dr. Keith F. Bell (“Dr. Bell”) of Travis County, Texas, filed suit in the Southern District of Indiana alleging that Defendants, Bartholomew Consolidated School Corporation (“Bartholomew”) of Columbus, Indiana and Timothy Bless (“Bless”) of Bartholomew County, Indiana, infringed his rights in United States Copyright Registration Nos. TX 2,672,644 (the “‘644 Registration”) for “Winning Isn’t Normal” and TX 8,503,571 (the “‘571 Registration”) for “WIN Passage”. Dr. Bell is seeking actual damages, statutory damages, attorneys’ fees, costs, and any other relief the court deems proper.

Dr. Bell claims he has worked as an internationally recognized sports psychologist with over 500 athletic teams including Olympic and national teams for seven different countries. Per the complaint, Dr. Bell also participates as a speaker for coaching symposia both at the national and international level. Dr. Bell’s work also allegedly includes ten books and eighty articles he authored and published relating to sports performance and sports psychology.

According to the complaint, Dr. Bell wrote the book Winning Isn’t Normal in 1981 which included a particular passage Dr. Bell entitled the “WIN Passage” (the “Infringed Works”). After the publishing of the book in 1982, Dr. Bell allegedly registered Winning Isn’t Normal and the WIN Passage with the U.S. Copyright Office in 1989 and 2017, respectively. Dr. Bell claims he has spent substantial time and effort promoting and selling copies of Winning Isn’t Normal and continues to sell it through various websites and outlets while also offering licenses for those that wish to publish the WIN Passage or use it in any way.

August 14, 2019

Indiana Patent Litigation: Natural Alternatives, LLC and SNI Solutions, Inc. Seek Damages for Alleged Infringement of an Anti-Freezing and Deicing Composition and Method

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiffs, SNI Solutions, Inc. of Geneseo, Illinois and Natural Alternatives, LLC of Lexington, Kentucky originally filed suit in the Central District of Illinois, that has since been transferred to the Southern District of Indiana, alleging that Defendants, Univar USA, Inc. (“Univar”) of Downers Grove, Illinois and Road Solutions, Inc. of South Bend, Indiana infringed its rights in United States Patent No. 6,080,330 (the “‘330 Patent”) for “Anti-Freezing and Deicing Composition and Method”. Plaintiffs are seeking damages, attorneys’ fees, costs, and any other relief the court deems proper.

SNI Solutions allegedly develops, manufactures, and sells de-icing agents containing de-sugared sugar beet molasses (“DSBM”) including products covered by the ‘330 Patent (“Covered Products”). State and local governments allegedly utilize DSBM for road de-icing and commercial de-icing applications. Natural Alternatives claims it develops, manufactures, and sells DSBM and the Covered Products as it is the owner by assignment of the ‘330 Patent. SNI Solutions and Natural Alternatives claim they have maintained a licensing agreement for SNI to commercialize the ‘330 Patent since October 21, 2008.

According to the complaint, Univar is or was a direct competitor of the Plaintiffs for the sale of DSBM and that Univar intended at least some of the DSBM it sold was to be combined with materials covered by the ‘330 Patent. Plaintiffs claim that Univar entered into a Letter of Intent with Todd Bloomer, the inventor of the ‘330 Patent, for Univar’s manufacture, marketing, and sale of DSBM in April 2006. Univar allegedly distributed products throughout the United States and Canada advertising the products as being protected by the ‘330 Patent between April 2006 and October 2008.

August 9, 2019

Indiana Patent Litigation: Indiana-Based Way Interglobal Network, LLC Sued for Alleged Patent and Trademark Infringement

By Overhauser Law Offices, LLC

South Bend, Indiana – Attorneys for Plaintiffs, Furrion Property Holding Limited and Furrion Limited, both of Cyberport Road, Hong Kong (collectively “Furrion”), filed suit in the Northern District of Indiana alleging that Defendant, Way Interglobal Network, LLC (“Way Interglobal”) of Elkhart, Indiana, infringed its rights in United States Patent Numbers D839,038 (the “‘038 Patent”), D851,978 (the “‘978 Patent”), D851,979 (the “‘979 Patent”), and D851,990 (the “‘990 Patent”) (collectively the “Furrion Design Patents”). Furrion is seeking preliminary and permanent injunctions, actual damages, total profits, treble damages, and pre and post judgment interest.

According to the complaint, Furrion was formed in 2007 to create modern-luxury technology for traveling including electronics, appliances, and energy sources for land and water vehicles. Furrion claims it has designed and manufactured its cooktops and ovens for use in the “RV” industry since at least 2013. The 2 in 1 Range Ovens produced and sold by Furrion have an allegedly distinctive and unique ornamental design compared to those traditionally available in the RV industry. Furrion claims the Furrion 2 in 1 Range Oven has had great success since May 2017 and is one of its best-selling products.

Furrion Property Holding Limited claims to be the owner by assignment of the Furrion Design Patents with Furrion Limited being the exclusive license holder for the Furrion Design Patents. According to the complaint, Furrion updates an online list of its products that are protected by Furrion’s U.S. patents giving notice of their patent property rights. The marketing and product materials for the Furrion products also allegedly contain copyright and trademark notices. Furrion claims the 2 in 1 Range Oven User Manual, in particular, can be viewed and/or downloaded online from anywhere by anyone. Furrion further claims it has at least four registered United States Trademarks that have been used in connection with its 2 in 1 Range Ovens, which include U.S. Registration Nos. 5,595,145, 5,487,459, 5,595,144, and 4,563,947 (the “Furrion Marks”).

August 6, 2019

Indiana Patent Litigation: Illinois Institute of Technology and All Cell Technologies, LLC Seek Damages for Alleged Patent Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiffs, All Cell Technologies, LLC (“All Cell”) and Illinois Institute of Technology (“IIT”), both of Chicago, Illinois, filed suit in the Southern District of Indiana alleging that Defendants, Workhorse Motor Works Inc. (“WMW”) of Union City, Indiana, and Workhorse Group Inc. (“WGI”) of Loveland, Ohio (collectively “Workhorse”) infringed their rights in United States Patent No. 6,468,689 (the “‘689 Patent”) for “Thermal Management of Battery Systems”, U.S. Patent No. 6,942,944 (the “‘944 Patent”) for “Battery System Thermal Management”, and U.S. Patent No. 8,273,474 (the “‘474 Patent”) for “Battery System Thermal Management”. The Plaintiffs are seeking damages, prejudgment interest, and any further relief that the Court deems proper.

According to the complaint, All Cell utilizes phase change materials (“PCM”) to build blocks adapted to house electrochemical cells. The thermal management blocks used by All Cell allegedly utilize PCM to absorb and conduct heat away from the electrochemical cells to extend the life of the cell and prevent damage or fire to electrochemical batteries. Workhorse is in the business of developing and manufacturing electric vehicles and plug-in hybrid vehicles. All Cell claims it worked with Workhorse previously to provide its thermal management blocks for Workhorse’s electric vehicles. Per the complaint, Workhorse stopped purchasing thermal management blocks and electrochemical cells from All Cell in early 2017 and began purchasing them from alternate sources.

It is alleged that the ‘689 Patent, the ‘944 Patent, and the ‘474 Patent are all owned by IIT with All Cell having an exclusive licensing agreement for the use of the patents, giving both parties standing to sue for infringement. As such, IIT and All Cell have collectively brought a patent infringement action against Workhorse. Plaintiffs allege at least claims 1-6 and 8 of the ‘689 Patent, claims 1, 2, 15, 16, 21-23, and 26 of the ‘944 Patent, and claims 1-3, 5, 7, 9-12, and 15-19 of the ‘474 Patent have been or are being infringed by Workhorse. IIT and All Cell are claiming infringement pursuant to 35 U.S.C. § 271(a), knowingly and actively inducing infringement by others pursuant to 35 U.S.C. § 271(b), and knowingly and actively contributing to the infringement by others pursuant to 35 U.S.C. § 271(c). Plaintiffs are seeking damages to compensate for the infringement but are seeking no less than a reasonable royalty under 35 U.S.C. §284.

August 5, 2019

Patent Office Issues 224 Patents To Indiana Citizens in July 2019

By Overhauser Law Offices, LLC

Overhauser Law Offices, the publisher of this site, assists with US and foreign patent searches, patent applications and assists with enforcing patents via infringement litigation and licensing.

The U.S. Patent Office issued the following 224 patent registrations to persons and businesses in Indiana in July 2019, based on applications filed by Indiana patent attorneys:

	Patent No.	Title
1	D0855159	Faucet
2	D0855158	Faucet
3	D0855157	Faucet
4	D0855156	Faucet
5	D0855155	Faucet

August 2, 2019

254 Trademark Registrations Issued to Indiana Companies in July 2019

By Overhauser Law Offices, LLC

The U.S. Trademark Office issued the following 254 trademark registrations to persons and businesses in Indiana in July 2019 based on applications filed by Indiana trademark attorneys:

Registration No.	Word Mark
5790075	DUCKMOBILE
5787884	GX
5787765	KOMPASS
5787747	AUTOCAM360
5787382	MAN ALIVE

July 30, 2019

Indiana Copyright Litigation: John Lennon and Yoko Ono Photograph at the Heart of Copyright Litigation Case

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Allan Tannenbaum of New York, New York, filed suit in the Northern District of Indiana alleging that Defendant, The2Connect, LLC of Elkhart, Indiana, infringed his rights in United States Copyright Registration No. VA 123-967. Tannenbaum is seeking actual damages, statutory damages, costs, attorneys’ fees, prejudgment interest, and any further relief that the Court deems proper.

Tannenbaum claims he is a professional photographer that licenses his photographs to online and print media sources for a fee. The photograph at issue in this case, is one that Tannenbaum allegedly took of John Lennon and Yoko Ono (the “Photograph”).

Roadtrippers-blogphoto-300x66

According to the complaint, The2Connect operates a website with the URL: https://maps.roadtrippers.com (the “Website”). Tannenbaum claims The2Connect utilized his Photograph in connection with an article entitled Rock and Roll Deaths Tour: Top 12 Dearly Departed Rockers on the Website without Tannenbaum’s permission. As such, Tannenbaum is suing The2Connect for copyright infringement in violation of 17 U.S.C. §§ 106 and 501 and seeking damages pursuant to 17 U.S.C. § 504(b) or (c). Tannenbaum is also seeking attorneys’ fees pursuant to 17 U.S.C. § 505.

The plaintiff Tannenbaum is represented by Richard Liebowitz of Valley Stream, New York. Mr. Liebowitz frequently files copyright infringement lawsuits, and has the dubious distinction of being frequently sanctioned. In an order dated July 10, 2019 in the case of Rice v. NBCUniversal Media LLC, Judge Furman imposed another sanction against Mr. Liebowitz and his firm for $8745.50 due to his failure to comply with court orders relating to a mediation and requiring his appearance in court. That order begins with this:

In his relatively short career litigating in this District, Richard Liebowitz has earned the dubious distinction of being a regular target of sanctions-related motions and orders. Indeed, it is no exaggeration to say that there is a growing body of law in this District devoted to the question of whether and when to impose sanctions on Mr. Liebowitz alone.
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July 24, 2019

Indiana Trademark Litigation: Two Members of the Group “Color Me Badd” Face Off Over the Use of the Trademark

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiffs, CMB Entertainment, LLC (“CMB”) a limited liability company formed under the laws of the State of Indiana and Bryan Abrams (“Abrams”) of Oklahoma, filed suit in the Southern District of Indiana alleging that Defendants, Mark Calderon (“Calderon”) of Ohio and Pyramid Entertainment Group, Inc. (“Pyramid”) of New York, New York, transacting business in the State of Indiana, infringed CMB’s rights in the federally registered U.S. trademark “COLOR ME BADD” (the “Mark”) and Calderon breached his fiduciary duties. Plaintiffs are seeking a preliminary injunction, damages, treble damages, pre-judgment interest, attorneys’ fees, and costs.

According to the complaint, CMB has two members, Abrams and Calderon, who were also two of the founding members for “Color Me Badd”, (the “Group”) a well-known R&B group. Plaintiffs claim Pyramid conducts business in Indiana as a booking agent which books shows and performances for the Group. Abrams claims he kept the Mark alive during the Group’s hiatus from 2000 to 2009/2010 by performing as Color Me Badd without the other three founding members.

Abrams and Calderon allegedly reformed the Group to perform at a concert in Hawaii in July 2010. A third member, Kevin Thornton (“Thornton”) then allegedly rejoined and the three formed CMB on May 26, 2011 for the business operations of the Group including owning the Group’s intellectual property rights. CMB filed to register the Mark on or about July 22, 2011 and was granted the Serial No. 85,378,693. Plaintiffs claim CMB is the sole owner of the Mark and at the time of formation, each member held an equal one-third interest in the company. While an operating agreement for CMB was drafted in October 2013, according to the complaint, it was never executed.