Indiana Intellectual Property Law News

July 30, 2018

Indiana Copyright Litigation

Indianapolis, Indiana – Attorneys for Plaintiff, Corlinea, LLC of Chandler, Indiana, filed suit in the Southern District of Indiana alleging that Defendants, Drostes Jewelry Shoppe Inc. (“Droste”) of Evansville, Indiana, and Shah Diamonds, Inc., D/B/A Shah Luxury (“Shah”) of New York, New York, infringed rights in United States Copyright Registration No. VAu 1-301-361 the “HEARTY LOVE” design and United States Copyright Registration No. VAu 2-093-049, the “HEARTLINES LOVE PENDANT” design. Plaintiff is seeking an award for damages, attorneys’ fees and costs, pre-judgment and post-judgment interest, and other relief as determined proper by the Court.

Corlinea’s principal, Sheryl Lutz-Brown, first began designing the works in question in 2016. Her concept was to find a unique way to incorporate the word “love,” and subsequently other words, into a heart shape with a continuous line. Corlinea is the owner by assignment of both of the copyright registrations in question here and has all rights, title, and interest in all causes of action for infringement.

In November 2016, Sheryl met with Droste concerning her new design to help guide her to a reputable manufacturer for her jewelry. After meeting in person, Sheryl provided a .eps file of her design to Droste to be sent to the manufacturer for a quote. The original quote for the CAD design and making of the first piece in Sterling Silver was $300.00, which Sheryl paid the following day. Over the next several months, Sheryl created at least five other designs and worked with Droste to fine tune each of them and have the CAD drawings and prototypes developed. While Sheryl had already paid $9,714.53 to Droste and had another $14,000.00 ordered, Droste refused to supply an invoice for Corlinea.

July 27, 2018

Indiana Trademark Litigation: Oakley Sues Indiana Company for Trademark Infringement and Dilution

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Oakley, Inc. of Foothill Ranch, California, filed suit in the Southern District of Indiana alleging that Defendants, Swami Property Sunman Inc., d/b/a Sunman BP of Sunman, Indiana, Chirag Patel, an individual, and Does 1-10 (collectively “Defendants”) infringed its rights in United States Trademarks as seen below:

Plaintiff is seeking judgment against Defendants, preliminary and permanent injunctions, punitive damages, attorneys’ fees, and investigatory fees.

Oakley has been a successful manufacturer and retailer of eyewear since at least 1985. During that time, they have acquired many trademarks including, but not limited to those pictured above (collectively, the “Oakley Marks”). Plaintiff has utilized the Oakley Marks to distinguish their high quality products from those of others and their consumers have come to recognize their distinct marks.

Plaintiff filed this action after discovering counterfeit products bearing infringing Oakley Marks were being offered for sale and/or sold at a gas station with a convenience store operating under the name of “SUNMAN BP.” It is Oakley’s belief that the Defendants are selling and offering for sale these counterfeit products with the intent that they will be mistaken for genuine high quality Oakley eyewear even though the Defendants are not licensees of Oakley nor have they been given the authority to use the Oakley Marks.

July 26, 2018

Indiana Trademark Litigation: Indiana Resident Sued by California Company over Professional Wrestling Trademark Infringement

By Overhauser Law Offices, LLC

Hammond, Indiana – Attorneys for Plaintiff, Lightning One, Inc. of Sherman Oaks, California, filed suit in the Northern District of Indiana alleging that Defendant, Nicholas P. Harmon of Lake Station, Indiana, infringed its rights in United States Trademark Registration Nos. 4375013 and 4349360 for NATIONAL WRESTLING ALLIANCE, and Trademark Registration No. 5418415 for the Logo associated with NATIONAL WRESTLING ALLIANCE. All of these registered marks will be referred to collectively as the “NWA Marks.” Plaintiff is seeking a permanent injunction, an accounting and judgment, treble damages, punitive damages, and costs including attorneys’ fees.

Lightning One has been involved in the professional wrestling world for seventy years with its NWA Marks being used in interstate commerce as early as 1948. They allege that not only do they have the rights in the federally registered trademarks, they also have strong common law rights based off their prior use. Plaintiff discovered that Harmon was posting videos and other social media content claiming to be “The Real NWA World’s Heavyweight Champion” and “The People’s NWA World’s Heavyweight Champion” in April 2018. Harmon also utilized a logo to promote his services that was allegedly intended to be confusingly similar with that of the registered NWA logo.

After discovering the infringing content, Lightning One sent Harmon a cease and desist letter. Instead of complying with the letter, Harmon posted his interactions with Lightning One on social media and continued using the NWA Marks. A further demand letter sent by Lightning One was also not complied with. In fact, Defendant made a Facebook post saying that he was intending on selling t-shirts using the mark N.W.A shortly after the letter. While he claims it was for his favorite rap group of the same initials, the background of this case seems to show differently.

July 17, 2018

Indiana Attorney Nominated to Fill Vacancy in the Northern District of Indiana

By Overhauser Law Offices, LLC

South Bend, Indiana – Damon R. Leichty, a partner of Barnes & Thornburg LLC has been nominated to serve as a judge in the United States District Court for the Northern District of Indiana. The vacancy to be filled was previously held by Judge Robert L. Miller, Jr. Leichty is the fourth Indiana attorney to be nominated by President Trump to fill vacancies in both Indiana’s Northern and Southern District Courts.

Leichty graduated from Indiana University Maurer School of Law and went on to serve as a law clerk for Miller for two years. He also served on the Federal Local Rules Advisory Committee for the Northern District of Indiana. During his career as a private practice attorney, he has represented clients in complex civil litigation throughout the United States. Leichty also counsels manufacturers on product liability, contracts warranties, and various product development and marketing strategies.

July 16, 2018

Indiana Copyright Litigation: Lafayette Based Company Sues California College for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, National Federation of Professional Trainers, Inc. (“NFPT”) of Lafayette, Indiana, filed suit in the Northern District of Indiana alleging that Defendant, Carrington College, Inc. (“Carrington”) of Sacramento, California, infringed its rights in United States Copyright Registration No. TX 8-515-798 (“NFPT 0241 Exam”). Plaintiff further alleges misappropriation of trade secrets, breach of contract, and fraud. Plaintiff is seeking damages, profits received from unauthorized copying and distribution of the copyrighted work, attorney’s fees, costs, and injunctive relief.

NFPT creates and administers examinations for the certification of personal trainers. Their certification programs have been accredited by the National Commission for Certifying Agencies since 2005. Carrington has utilized NFPT’s examinations and educational materials as a part of its Physical Therapy Technology Program. At the end of the course, students were able to sit for the NFPT certification exam for the opportunity to become a certified personal trainer upon obtaining a “passing” score.

Carrington administered an NFPT examination December 10, 2015 via their proctor, Mr. Phillip Schauer (“Schauer”). As proctor, Schauer had to sign a confidential disclosure agreement, which included maintaining the confidentiality of the exams and not duplicating any of the testing materials. The December 10, 2015 exam produced extremely abnormal results for the students’ test scores. Of the twenty-six candidates, fifteen had identical or similar response strings while the remaining candidates response strings differed by a maximum of four responses out of 120. All of the candidates obtained a “passing” score. Due to the abnormalities in the results, NFPT voided the results and required all candidates to retake the examination with new questions on August 26, 2016. Only six candidates chose to retake the exam and of those, only two obtained a passing score.

July 12, 2018

Indiana Copyright Litigation: Indiana Company Sued for Copyright Infringement for Unauthorized Reproduction and Use of Photograph Online

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, FOTOHAUS, LLC (“Fotohaus”) of Tallahassee, Florida filed suit in the Southern District of Indiana alleging that Defendant, OFS BRANDS, INC (“OFS”) of Huntingburg, Indiana infringed its rights in United States Copyright Registration No. VA 1-832-736 photograph titled “Light Collector” (“Photograph”). Plaintiff is seeking statutory damages, actual damages, Plaintiff’s costs, and attorneys’ fees.

The Photograph in question was first captured by Daniel Foster, Manager of Fotohaus, in Shanghai, China on July 1, 2010. Foster posted the Photograph to his Flickr account on July 13, 2010 and later registered the Photograph with the United States Copyright Office on July 17, 2012. Fotohaus was assigned the copyright to the Photograph on March 8, 2017. On or about June 2, 2016, OFS copied the Photograph and posted it to their commercial website accompanying a post advertising the design of a product they offered. Defendant also posted a copy of the Photograph on their Twitter page on June 6, 2016.

Fotohaus mailed their first letter identifying the infringement of the Photograph to OFS on September 5, 2017 demanding among other things that OFS remove the infringing material. At least ten communications between the Plaintiff and Defendant occurred between October 17, 2017 and February 19, 2018. The offending Twitter post was not removed by OFS until February 19, 2018. Plaintiff claims the Defendant not only violated their exclusive rights of reproduction and distribution, but the act of infringement was willful, intentional, and without regard to the rights of the Plaintiff. For this, Plaintiff is requesting a declaration that Defendant’s unauthorized conduct violated Plaintiff’s rights under the Federal Copyright Act, maximum allowable statutory damages, and actual damages.

July 11, 2018

Indiana Trademark Litigation: Indiana Based Moving Company Sues Florida Company for Trademark Infringement and Cybersquatting

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – Attorneys for Plaintiff, North American Van Lines, Inc. (“NAVL”) of Fort Wayne, Indiana filed suit in the Northern District of Indiana alleging that Defendant, North America Moving & Storage, Inc. of Miami Beach, Florida infringed its rights in United States Trademark Registration No. 917,431 for the mark “NORTHAMERICAN”. Plaintiff is seeking damages, exemplary damages, punitive damages, attorney’s fees, pre-judgment and post-judgment interest.

Counts one and two of the Plaintiff’s Complaint allege Federal Trademark Infringement and Federal Unfair Competition, both under the Lanham Act. Plaintiffs allege that the Defendant’s use of “NORTH AMERICA” and “NORTH AMERICA MOVING SYSTEMS” (“Infringing Marks”) has caused and will continue to cause confusion, deception, and mistake by giving the impression that the Defendant’s services originate from the Plaintiff or are associated with the Plaintiff. Further, Plaintiffs claim there has been actual consumer confusion as to the source of transportation services sold and advertised by the Defendant. NAVL also asserts that Defendant has taken part in multiple deceptive acts including making false representations, false descriptions, and false designations of origin of its services, providing for unfair competition.

Count three claims that Defendant registered and is using the northamericamoving.com domain name in bad faith under the Anticybersquatting Consumer Protection Act. NAVL alleges that Defendant is using the name without their permission and that Defendant’s intent in registering and using the domain name was and is to divert consumers from NAVL’s own websites. Count four of the Complaint alleges Indiana Trademark Infringement for Defendant’s use of a reproduction, colorable imitation, or copy of NAVL’s marks in connection with the sale, or offer of, distribution, and advertising of goods and services. Finally, Count five alleges Common Law Unfair Competition for consumer confusion and deception by Defendant’s use of the Infringing Marks.

July 6, 2018

Indiana Patent Litigation: Patent Infringement for a System for Transmitting Video Images over a Computer Network to a Remote Receiver Alleged in New Lawsuit

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Secure Cam, LLC of Sheridan, Wyoming originally filed suit in the Northern District of California alleging that Defendant, Project Nursery, LLC of San Francisco, California infringed its rights in United States Patent No. 7,257,158, (“the ‘158 Patent”) for “System for Transmitting Video Images over a Computer Network to a Remote Receiver”. As of June 21, 2018 this case has been transferred to the Southern District of Indiana. Plaintiff is seeking damages, costs, expenses, pre-judgment and post-judgment interest.

Plaintiffs allege that the Defendant’s face recognition readers and license plate recognition cameras that they manufacture, import into the United States, or offer for sale, and/or sell infringe at least Claim 12 of the ‘158 Patent. Other products alleged to infringe the ‘158 Patent include: Project Nursery 5” HD Dual Connect Wi-Fi Baby Monitor System, Project Nursery 4.3 Baby Monitor System with 2 Digital Zoom Cameras, Project Nursery Video Baby Monitor System with Digital Zoom Camera, Project Nursery 5” High Definition Baby Monitor System with 1.5” Mini Monitor, Project Nursery 4.3” Baby Monitor System with 1.5” Mini Monitor, and Project Nursery 4.3” Baby Monitor System. In the Complaint, plaintiffs point out seven separate elements included in the allegedly infringing products that are all elements in Claim 12 of the ‘158 Patent.

July 5, 2018

Indiana Patent Litigation: U.S. District Court Rules in Favor of Eli Lilly in Alitma Patent Infringement Case

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, Dr. Reddy’s Laboratories, LTD. of Hyderabad, Telagana, India, and Dr. Reddy’s Laboratories, Inc,. a New Jersey corporation, infringed its rights in U.S. Patent No. 7,772,209 (“the ‘209 Patent”).

The ‘209 Patent at issue here is a method patent for administering pemetrexed disodium, a chemotherapy drug, with vitamins, the combination of which is marketed as ALITMA® by Lilly. This invention helps to solve the toxicity issue in chemotherapy patients being treated with pemetrexed. The particular regimen of vitamin and folic acid are important for the pretreatment of these patients. As of December 2015, Dr. Reddy’s informed Lilly that it had submitted a FDA New Drug Application for a product that would be marketed as a competing product to ALITMA®.

The first issue the Court had to decide was whether Lilly was barred from asserting the doctrine of equivalents under prosecution history estoppel. The Court held that Lilly had not surrendered the equivalent in question because their decision to use the choice pemetrexed salt was tangential to the reasons for the amendment. The choice to narrow was simply to overcome a rejection in view of a prior art article about a different antifolate, methotrexate.

July 3, 2018

Patent Office Issues 151 Patents To Indiana Citizens in June 2018

By Overhauser Law Offices, LLC

The U.S. Patent Office issued the following 151 patent registrations to persons and businesses in Indiana in June 2018, 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	D0821294	Tire
2	10008830	High-voltage extender for connecting a spark plug to a high-voltage source
3	10008375	Systems and methods for analyzing an extracted sample
4	10008374	Systems and methods for transfer of ions for analysis
5	10007592	Debugging non-deterministic embedded systems