Indiana Intellectual Property Law News

December 8, 2017

Southern District of Indiana Dismisses College Football Players’ Suit Against FanDuel and DraftKings

Indianapolis, Indiana – Attorneys for Plaintiffs, Akeem Daniels, Cameron Stingily, and Nicholas Stoner, Inc., filed suit in the Southern District of Indiana alleging Defendants, FanDuel, Inc., and DraftKings, Inc. used the likeness of the three Plaintiffs and alleged a Right of Publicity claim.The decision was made by the district court granting the Defendants’ Motion to Dismiss the case.

The Defendants are fantasy sports websites that run collegiate fantasy football games, among other sports. The Plaintiffs were collegiate football players whose names appeared on the websites as players available for selection for a user’s fantasy team.

Plaintiffs filed suit claiming that Defendants violated their rights of publicity under Indiana’s Right of Publicity statute by using their name and likenesses on the websites without first obtaining permission. Defendants moved to dismiss for failure to state a claim. The Defendants put forward three main defenses: that certain statutory exemptions in the Indiana statute removed protection for the Plaintiffs, that First Amendment free speech allowed the use, and that federal copyright law preempted Plaintiff’s claims.

The Court ruled in favor of the Defendants’ motion to dismiss based on the statutory exemptions in the Indiana statute. The Court found that the Defendants’ use of Plaintiff’s names fell into the “newsworthy” and “public interest” exemptions to the state Right of Publicity statute. For the sake of thoroughness, the Court continued their analysis and rejected the other statutory exemptions put forward, as well as the First Amendment and federal preemption defenses.

December 7, 2017

Indiana Trademark Litigation: Purdue University Granted Injunction Against “Boilermaker Beer”

By Overhauser Law Offices, LLC

Tippecanoe County, Indiana – Attorneys for Plaintiff, The Trustees of Purdue University, filed suit in the Superior Court No.1 of Tippecanoe County, Indiana alleging that Defendant, Paul Parshall d/b/a Sports Beer Brewing Company, of Florida infringed its rights for use of the “Boilermakers Beer” and “Purdue Boilermakers Brewing” trademarks which were registered by the defendant. A Tippecanoe County Judge sided with Purdue University in an order dated November 9, 2017, and issued a Preliminary Injunction against the Defendant.

Defendant’s business is not a beer brewing company; rather, it is an Intellectual Property holding company whose portfolio consists of trademarks and service marks of various sports teams across the country. The company then works with breweries in different cities to provide beverages to customers with the chosen team’s logos, nicknames, and word marks on cups and other forms of packaging.

The Defendant has state trademark registrations in Indiana for the marks “Boilermakers Beer” and “Purdue Boilermakers Brewing.” Purdue University owns various registered federal trademarks for combinations of the words “Purdue,” “Boilermakers,” and “Boiler.”

December 6, 2017

Indiana Copyright Litigation: Richard Bell Sues Again On Copyright Claim Over Indianapolis Skyline Photo

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorney for Richard Bell of McCordsville, Indiana filed suit in the Southern District of Indian a alleging that Defendant, Keith Arnett infringed its rights in the “Indianapolis Photo” registered on August 4, 2011 with the US Copyright Office, Registration No. VA0001785115. Bell seeks injunctive relief along with statutory damages, costs and attorney fees.

Bell has filed many lawsuits on his own behalf asserting copyright infringement in Indiana federal courts. See:

This suit follows the same lines as the previous suits. Bell alleges copyright infringement and violations of the Lanham Act, stemming from the Defendant’s alleged unauthorized use of the copyrighted photo of the Indianapolis skyline. Plaintiff claims that Defendant used the photo on Defendant’s business website to help draw visitors to the website.

Plaintiff also alleges that Defendant falsely claimed that Defendant owned all copyrights for all photos appearing on the website. Bell even goes so far to allege that, by making the photo available for download on his website by third parties, Defendant is vicariously liable for any and all profits derived by third party users who downloaded the photo.

December 5, 2017

Court Of Appeals For Federal Circuit Denies Eli Lilly’s Appeal, Opens Door for Testosterone Generics

By Overhauser Law Offices, LLC

The Plaintiffs, Eli Lilly and Company, Eli Lilly Export S.A., and Acrux DDS Pty Ltd. had filed a patent infringement lawsuit in the Southern District of Indiana alleging that Defendants, Perrigo Company, Perrigo Israel Pharmaceuticals Ltd., Actavis Laboratories UT, Inc., FKA Watson Laboratories Inc., Lupin Pharmaceuticals, Inc., and Lupin LTD infringed patent no. 8,435,944, Method and Composition for Transdermal Drug Delivery (the ‘944 patent) and 8,807,861, Spreading Implement, (the ‘861 patent), which have been issued by the US Patent Office.

The ‘944 patent “recites a transdermal delivery method of applying testosterone to the axilla of a patient.” The District Court ruled in favor of the Defendants and invalidated the ‘944 patent for obviousness based on prior art, and the Court of Appeals for the Federal Circuit affirmed this decision. The Federal Circuit cited a lack of merit in Lilly’s appeal and a misreading of the district court’s decision.

The District Court upheld the validity of Lilly’s ‘861 patent, for an applicator that administers testosterone to the body. The Federal Circuit affirmed this decision as well, denying Cross-Appellant Amneal Pharmaceuticals’ appeal. Amneal’s version of the applicator was found to infringe on the ‘861 patent, and the Federal Circuit agreed. Amneal claimed that prior art invalidated the ’861 patent, but the Federal Circuit denied that argument.

December 4, 2017

190 Trademark Registrations Issued to Indiana Companies in November 2017

By Overhauser Law Offices, LLC

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

Registration No.	Word Mark	Click To View
5330644	STUPID SEXY FLANDERS	TSDR
5348120	CHERRY BUSEY	TSDR
5346363	SPECIALIZING IN COUNTY SEAT COMMUNITIES	TSDR
5346314	BLUE	TSDR
5346194	E-ZSERT	TSDR
5346004	DEWCARTA	TSDR

December 1, 2017

Patent Office Issues 153 Patents To Indiana Citizens in November 2017

By Overhauser Law Offices, LLC

The U.S. Patent Office issued the following 196 patent registrations to persons and businesses in Indiana in November 2017, based on applications filed by Indiana patent attorneys:

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.

	Patent No.	Title
1	D0804033	Blood testing apparatus
2	D0803996	Lavatory basin
3	9831624	Plug assemblies
4	9830673	System portal control for a diabetes management system
5	9830424	Bed/room/patient association systems and methods

November 29, 2017

Supreme Court Hears Oral Argument Over Non-Instituted Claims in PTAB Decisions

By Overhauser Law Offices, LLC

As reported by the AIPLA, the Supreme Court on November 27, 2017 heard oral argument on whether the Patent Trial and Appeal Board (PTAB) is required by 35 U.S.C. 318(a) to address every patent claim challenged in a petition for inter partes review (IPR). SAS Institute, Inc. v. Lee, U.S., 16-969, oral argument 11/27/2017.

Petitioner’s Argument

SAS pointed out that Section 318(a) of the Patent Act states that, if an IPR is instituted, the PTAB “shall” issue a final written decision on “any patent claim challenged by the petitioner.” Justice Sotomayor pointed out that no IPR was instituted with respect to some of the claims in the petition, and asked SAS to clarify what relief was being sought.

November 28, 2017

Indiana Trade Dress Infringement: Owner of Shoe Carnival Trademark Sues over Trade Dress and Trademarks

By Overhauser Law Offices, LLC

Evansville, Indiana – Attorneys for Plaintiff, SCLC, Inc. of Evansville, Indiana filed suit in the Southern District of Indiana alleging that Defendants, Marie Kettering of Trenton, New Jersey, and Lanny Tyndall of Enfield, Gansu, Canada, infringed the rights of SCLC. Plaintiff is seeking a nationwide injunction, compensatory damages, and attorneys’ fees.

Plaintiff owns the rights to the “Shoe Carnival” trademark, and owns and operates shoecarnival.com. The complaint alleges that the Defendants operate shoe sale websites that infringe upon the trade dress of the Shoe Carnival website, and infringe upon the Shoe Carnival trademark by displaying the registered mark on the websites. Specifically, the Defendants’ websites mimic the “look and feel” of Shoe Carnival’s website, including the layouts, placement of photos, borders, frames, colors, and overall impression. Further, Plaintiff alleges that the offending websites used the “Shoe Carnival” registered mark without permission in an effort to generate sales, which Plaintiff claims has caused consumer confusion.

Practice Tip: Although the Plaintiff alleges personal jurisdiction over the Defendants in the complaint, they do not allege any specific facts, such as infringing sales, which occurred in Indiana. This may cause issues for the Plaintiff in trying to secure personal jurisdiction over the Defendant. In a similar case in 2014, the United States Court of Appeals for the Seventh Circuit ruled that an out-of-state business accused of trademark infringement did not have sufficient contacts, arising out of the accused activity, with Indiana to subject it to personal jurisdiction in the state.

November 27, 2017

New York Trademark Litigation: Indiana-Based AM General Sues Activision over Call of Duty Videogame

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, AM General LLC, of South Bend, Indiana filed suit in the Southern District of Indiana alleging that Defendants, Activision Blizzard, Inc., and Activision Publishing, Inc., both of Santa Monica, California and Major League Gaming Corp., of New York, New York; infringed its rights for the Trademark Registrations of HUMVEE and HMMWV and the trade dress of its HUMVEE brand vehicles. Plaintiff is seeking compensatory damages, punitive damages, corrective advertising, attorneys’ fees and costs, and prejudgment and post judgment interest.

Plaintiff alleges that Defendant’s series of Call of Duty videogames have consistently infringed by incorporating and allowing players to control vehicles in-game that, allegedly, infringe on Plaintiff’s real-life protected marks. In the complaint, Plaintiff points to various in-game levels that require the player to control a vehicle that allegedly copies the registered trade dress elements, and other moments in the game where the player sees or interacts with vehicles resembling Humvees. Plaintiff also notes in-game dialogue and marks written on the vehicles that mention “Humvee” specifically.

November 21, 2017

Indiana Patent Litigation: Eli Lilly and Teva Pharmaceuticals Clash Again over Alimta

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Eli Lilly and Company of Indianapolis, Indiana, filed suit in the Southern District of Indiana alleging that Defendants, Actavis LLC of Parsippany, New Jersey; Teva Pharmaceuticals USA of North Wales, Pennsylvania; and Teva Pharmaceutical Industries, Ltd. of Petach Tikva, Israel infringed its rights in United States Patent No. 7,772,209 (“the ’209 patent”) for “Antifolate Combination Therapies”. Plaintiff is seeking injunctive relief, declaratory judgment, and damages including costs and attorneys’ fees.

Eli Lilly and Teva have been involved in numerous patent infringement lawsuits against each other in the past. In April, Eli Lilly sued Teva on a claim of patent infringement of the same drug involved in this case, Alimta. This new complaint is based on a filing by Defendant with the FDA “seeking approval to manufacture and sell its Pemetrexed Injection Concentrate.”