Indiana Intellectual Property Law News

January 21, 2019

Indiana Copyright Litigation: Design Basics, LLC Sues Another Indiana-Based Company for Copyright Infringement

South Bend, Indiana – Attorneys for Plaintiff, Design Basics, LLC, Inc. of Omaha, Nebraska filed suit in the Northern District of Indiana alleging that Defendant, Blue Ribbon Builders, Inc., of South Bend, Indiana infringed on its copyrights of Architectural Works. Plaintiff is seeking judgment, actual damages, statutory damages, temporary and permanent injunctions, attorneys’ fees, and costs.

Design Basics is a company that creates technical drawings and architectural works for home designs. After creation, it markets and licenses the use of these works for $700 to $6,000 each. While the Plaintiff has spent more than $410,000 on capital improvements, including building two websites, in the past ten years, they have seen a decrease in licensing revenue. Design Basics alleges that this decrease in licensing revenue is due to massive piracy of its copyrighted home designs by multiple builders, including Defendant in this case and defendants in many other cases in Indiana.

While researching infringing homes related to another lawsuit, Design Basics discovered Blue Ribbon Builders had constructed several homes that appeared to be copied from Design Basics’ copyrighted designs. These copyrighted designs included Pine Ridge, Mayberry, Lancaster, Stevens Woods, and Linden (the “Copyrighted Works”). Plaintiff has at all relevant times been the owner of the Copyrighted Works and never licensed nor gave permission to Defendant to utilize them. Design Basics claims Defendant had actual knowledge of the Copyrighted Works as they were mailed plan catalogs and had reasonable access to the Copyrighted Works online.

January 18, 2019

Indiana Copyright Litigation: Lifehouse Homes, LLC Allegedly Infringed Home Design Plans

By Overhauser Law Offices, LLC

South Bend, Indiana – Attorneys for Plaintiffs, Design Basics, LLC, Inc. and Plan Pros, Inc. (“PPI”), both of Omaha, Nebraska filed suit in the Northern District of Indiana alleging that Defendant, Lifehouse Homes, LLC, of Lowell, Indiana infringed on their copyrights of Architectural Works. Plaintiffs are seeking judgment, actual damages, temporary and permanent injunctions, attorneys’ fees, and costs.

Plaintiffs design architectural works and technical drawings, approximately 350 of which they have registered with the United States Copyright Office since 2009. They offer single-build licenses for their home designs ranging from $700 to $6,000 per license. Plaintiffs have sold and issued more than 9,300 construction licenses for their home designs since 2009. Also listed among the services provided by Plaintiffs are marketing and advertising for other home design firms, and custom home designs.

Prior to the internet becoming a widely popular way to disseminate information and advertise businesses, Plaintiffs distributed catalogs and other publications to advertise their work. Plaintiffs now allege that after spending a large amount of money to build a user-friendly website to showcase their designs, profits have decreased instead of increased as expected because they designs are now being pirated at high rates. They have filed numerous lawsuits in the past few years against companies in Indiana, as it was previously a top-selling state for home plan licenses.

January 16, 2019

Indiana Copyright Litigation: Michigan City Magazine Sued for Use of Alleged Infringing Photograph

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Matthew Cunningham of Michigan City, Indiana, filed suit in the Northern District of Indiana alleging that Defendant, Montgomery & Associates, Inc. also of Michigan City, Indiana, infringed his rights in United States Copyright Registration No. VA 2-126-377 (the “Registered Photo”). Plaintiff is seeking actual damages, court costs, attorneys’ fees, pre and post judgment interest, and any other relief the Court deems just and proper.

Plaintiff is a professional photographer that licenses his photographs to online and print media companies in exchange for a fee. Defendant owns and operates a magazine entitled The Beacher. The Registered Photo at issue in this case is one that Cunningham took of Jessica and Nick Rosier. Plaintiff is the sole owner of all right, title, and interest to the Registered Photo.

Cunningham claims that Defendant ran an article in The Beacher on or about May 24, 2018 that prominently featured the Registered Photo. Neither the article, nor the Registered Photo, contained any attribution to the Plaintiff. Plaintiff claims he never licensed the Registered Photo to Defendant, did not give consent or permission for its use, and Defendant knew the Plaintiff was the author and owner of it. As such, Plaintiff is seeking judgment and damages for copyright infringement pursuant to 17 U.S.C. §§ 106 and 501, and relief for the Defendant’s actions of knowingly removing the copyright management information from the Registered Photo pursuant to 17 U.S.C. § 1202(b).

January 4, 2019

Indiana Trademark Litigation: Indiana Pyrotechnics Company Sued for Trademark Infringement

By Overhauser Law Offices, LLC

South Bend, Indiana – Attorneys for Plaintiff, Jacob J. Dell, Individually, & d/b/a Magic in the Sky of Boerne, Texas, filed suit in the Northern District of Indiana alleging that Defendant, Miand, Inc. of LaPorte, Indiana, infringed its rights in United States Trademark Registration No. 5,184,437 for the mark MAGIC IN THE SKY (the “Mark”). Plaintiff is seeking actual damages, enhanced damages, attorneys’ fees, prejudgment and post-judgment interest, court costs, and any other relief the court deems proper.

Plaintiff owns and operates Magic in the Sky, a pyrotechnics company for which he has used the Mark since at least as early as March 24, 2001. Dell filed a U.S. trademark application on January 22, 2016 and the trademark was granted registration on April 18, 2017. The Defendant, in connection with their fireworks display services, uses the phrase “Sky Magic Pyrotechnics” (“Infringing Mark”).

Dell first learned of the Infringing Mark when a representative of Busch Gardens in Tampa, Florida asked if he was involved with the Defendant due to their use of “Sky Magic” on the internet. He informed Defendant of their infringing use in a cease and desist letter dated June 19, 2018. After he received no response, Dell sent a second letter to Defendant on September 7, 2018. Defendant has continued using the Infringing Mark and has not responded to either cease and desist letter.

Plaintiff is claiming trademark infringement under the Lanham Act. He is further seeking preliminary and permanent injunctive relief pursuant to 15 U.S.C. § 1116 and Defendant’s profits, actual damages, and costs of the action pursuant to 15 U.S.C. § 1117 for unfair competition under the Lanham Act.

January 3, 2019

Indiana Patent Litigation: Hug Me Joey Sues Indiana Car Seat Producer for Patent Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiffs, Esther A.L. Verbovszky of Rocky River, Ohio and Hug Me Joey, LLC of Rocky River, Ohio, originally filed suit in the Northern District of Ohio. The case has since been transferred to the Southern District of Indiana alleging that Defendant, Dorel Juvenile Group, Inc. d/b/a Maxi-Cosi of Columbus, Indiana, infringed its rights in United States Patent No. 6,467,840 (“the ‘840 Patent”) for a “Child’s Car Seat Insert”. Plaintiff is seeking preliminary and permanent injunctions, damages, an award of attorney’s fees and costs, judgment, and prejudgment interest.

Plaintiffs have been designing and producing products to help infants breathe better, digest food easier, and improve comfort during travel since 1998. The ‘840 Patent was issued to Plaintiffs on October 22, 2002 for an insert to be used in a car seat for a tighter fit around the infant. Defendants are alleged to sell a group of products known as the Maxi-Cosi Mico Max 30 car seats, that are for use with small infants to achieve a snug fit, that infringe the ‘840 Patent. The sole claim of the Complaint is for direct and indirect patent infringement pursuant to 35 U.S.C. § 271.

January 2, 2019

Indiana Trademark Litigation: Inspire Commerce, Inc. Claims Enspire Commerce Infringed Its Trademark Rights

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Inspire Commerce, Inc. (“Inspire”) of Boulder County, Colorado, filed suit in the Southern District of Indiana alleging that Defendants, enVista, LLC, enVista Interactive Solutions, LLC d/b/a Enspire Commerce, and RetailPoint II, LLC d/b/a RetailPoint, all of Carmel, Indiana, infringed its rights in United States Trademark Registration Number 4,344,942. Plaintiff is seeking damages, injunctive relief, and other relief as the Court may deem just and proper.

Inspire provides services and products related to financial transaction processing for both storefronts and online retail stores. As early as April 24, 2008, Inspire began using its INSPIRE COMMERCE mark (the “Registered Mark”) for their financial transaction services and products. Plaintiff filed for registration with the USPTO for the Registered Mark on October 27, 2010, and was issued a Certificate of Registration for it on June 4, 2013. Inspire filed a Combined Declaration of Use and Incontestability with the USPTO on July 27, 2018. The USPTO accepted and acknowledged the Combined Declaration on August 4, 2018.

Plaintiff alleges Defendants began using their assumed name “ENSPIRE COMMERCE” on or about October 30, 2013. Defendant Interactive Solutions filed a Certificate of Assumed Business Name for Enspire Commerce on or about May 23, 2014. Inspire claims Defendants began using Enspire Commerce in connection with their system for managing transactions, processing, and payments for merchants and retailers. After April 19, 2018, the Interactive Solutions and RetailPoint social media pages were both taken down, their websites were removed, and their domain names began forwarding to an enVista website.

January 1, 2019

Patent Office Issues 129 Patents To Indiana Citizens in December 2018

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 129 patent registrations to persons and businesses in Indiana in December 2018, based on applications filed by Indiana patent attorneys:

	Patent No.	Title
1	D0836557	Electrical connector housing
2	D0836505	Compression relief brake assembly
3	10,164,708	Methods for determining receiver coupling efficiency, link margin, and link topology in active optical cables
4	10,164,394	Direct-attach connector
5	10,163,367	Refreshable tactile display

January 1, 2019

175 Trademark Registrations Issued to Indiana Companies in December 2018

By Overhauser Law Offices, LLC

The U.S. Trademark Office issued the following 175 trademark registrations to persons and businesses in Indiana in December 2018 based on applications filed by Indiana trademark attorneys:

Registration No.	Word Mark
5,638,115	LINCOLN CORE CAPITAL
5,634,797	NO RIVALS
5,624,533	ONCO 4D
5,620,671	JAVA HOUSE
5,638,003
5,637,446	VELOCITY

December 24, 2018

Indiana Copyright Litigation: Vintage Aviation Publications, LLC Sued for Alleged Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff Matthew Sager of Millsboro, Delaware filed suit in the Northern District of Indiana alleging that Defendant, Vintage Aviation Publications, LLC of Huntington, Indiana, infringed its rights to the US Copyright Office Registration No. VA 2-122-899 titled “10022017SeaHarrier-100” and “10022017SeaHarrier-209”. Plaintiff is seeking damages, costs, expenses, attorneys’ fees, pre-judgment interest, and any other relief as the Court deems just and proper.

Sager, a professional photographer, took photographs of fighter jets. He later published the photographs on his website and registered them with the US Copyright Office. Sager alleges that on or about August 1, 2018, the Defendant ran an article in its July/August issue of its digest on its website and in print, that prominently featuring Sager’s registered photographs. Both the online version and print version were available for sale on the Defendant’s website.

As the Defendant did not license, or otherwise gain authorization to use the photographs from Sager, he is claiming copyright infringement under the Copyright Act, 17 U.S.C. §§ 106 and 501. Sager is also claiming that the Defendant cropped the watermark off his photographs in violation of 17 U.S.C. § 1202(b). For the intentional removal of his copyright management information, Sager is seeking statutory damages in a sum of at least $2,500 up to $25,000 per violation pursuant to 17 U.S.C. § 1203(c)(3).

December 20, 2018

Indiana Patent Litigation: Smart Living Home Seeks to Enforce Patent Rights to Birdbaths

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Smart Solar Inc. d/b/a Smart Living Home & Garden of Libertyville, Illinois, filed suit in the Southern District of Indiana alleging that Defendant, Sky Billiards, Inc. d/b/a Best Choice Products of Irvine, California, infringed its rights in United States Patent No. 7,484,671 (“the ‘671 Patent”) for “Water Feature”. Venue was selected by the Plaintiffs as the Defendant is registered to do business in the State of Indiana, maintains a distribution facility in Indiana, and has allegedly committed acts of infringement in the Southern District of Indiana. Further, Defendants admitted in a separate action with the Plaintiff in Illinois that venue would be proper in the Southern District of Indiana. Plaintiff is seeking injunctive relief and judgment including statutory damages and attorneys’ fees.

Smart Living designs, develops, and sells decorative birdbaths and fountains with solar water pumps. The ‘671 Patent was issued on February 3, 2009 to inventors Simon Howard Wigglesworth and Franz Roecker. It was then assigned to Smart Solar Limited, and Smart Living became the exclusive licensee.

Plaintiff alleges that the fountains and birdbaths sold by the Defendant are imitations of Smart Living’s products and that they infringe the ‘671 Patent. Defendant has a long history of being sued for violations of intellectual property rights, which Smart Living believes to show a willful infringement of these rights. Best Choice makes, offers for sale, and/or imports four birdbaths and fountains that Smart Living believes infringe on its intellectual property rights. Plaintiff sent a letter informing Defendant of the ‘671 Patent on February 22, 2017, without any response. During litigation in Illinois, the Parties engaged in mediation on September 21, 2018, but settlement was not reached.

The single claim of the Complaint is for Federal Patent Infringement pursuant to the Patent Act, 35 U.S.C. § 101 et seq. Plaintiff alleges that Defendant’s products directly infringe at least Claims 1-4, 6, 8, and 10-11 of the ‘671 Patent. Further, Defendant has indirectly infringed these same claims by actively inducing infringement after it had actual knowledge of the ‘671 Patent. Because of this knowledge of the ‘671 Patent and the continuing infringing acts, Plaintiff alleges Defendant’s infringement is willful and deliberate.