Indiana Intellectual Property Law News

April 19, 2016

Indiana Cable & Satellite TV Litigation: DISH Accuses Indianapolis Man of Interception

Indianapolis, Indiana – In conjunction with Texas co-counsel, an Indiana attorney for Plaintiffs DISH Network L.L.C., Echostar Technologies L.L.C. and Nagrastar LLC, all of Englewood, Colorado, filed an intellectual property lawsuit in the Southern District of Indiana alleging violations of the Digital Millennium Copyright Act, the Federal Communications Act and the Electronic Communications Privacy Act.

Plaintiffs contend that Defendant John Ladd Sr. of Indianapolis, Indiana circumvented DISH Network’s security system by illegally obtaining its control words, also known as “keys,” and using those keys to decrypt and view DISH Network’s copyrighted programming.

In the complaint, filed Friday in Indiana district court, the following claims are made:

• Count I: Circumventing An Access Control Measure In Violation Of The Digital Millennium Copyright Act, 17 U.S.C. § 1201(a)(1)
• Count II: Receiving Satellite Signals Without Authorization in Violation of the Federal Communications Act, 47 U.S.C. § 605(a)

• Count III: Intercepting Satellite Signals in Violation of the Electronic Communications Privacy Act, 18 U.S.C. §§ 2511(1)(a) and 2520

Plaintiffs seek various forms of redress including: injunctive relief, statutory and punitive damages, costs, investigative expenses and attorneys’ fees.

Overhauser Law Offices, the publisher of this website, has represented several hundred persons and businesses accused of infringing satellite signals.

April 18, 2016

Indiana Intellectual Property Litigation: Former Employee of Sign Company Accused of Unfair Competition

By Overhauser Law Offices, LLC

Hammond, Indiana – An Indiana attorney for Plaintiff Landmark Signs, Inc. of Chesterton, Indiana filed an intellectual property lawsuit in the Northern District of Indiana.

Plaintiff Landmark states that it has been designing, fabricating, installing, and repairing signs throughout the U.S. for over thirty years. It claims to use at least two trademarks in connection with its business: a “Landmark” trademark, which it claims to have used at least as early as October 1983, and a stylized “Landmark Sign Group” trademark, which it claims to have used at least as early as March 1, 1999.

Landmark states that it holds various trademark rights, including federal trademark Registration No. 2,932,838, which was issued by the U.S. Patent and Trademark Office, as well as state registrations issued by Indiana and Illinois. Landmark also has a pending federal trademark application for “Landmark Sign Group” that seeks intellectual property protection for the mark in connection with services not listed in its currently registered federal trademark.

Defendants in this federal litigation are I C U Outdoor Advertising LLC (“ICU”) and ICU’s owner Lawrence Yurko, both of Valparaiso, Indiana. Yurko is a former employee of Landmark. He and ICU are accused of various violations of federal and Indiana state law, including trademark infringement, deceptive trade practices and using Yurko’s position at Landmark to advance the interests of ICU.

This lawsuit, filed by an Indiana lawyer for Landmark, lists the following claims:

• Count I: Federal Unfair Competition in Violation of 15 U.S.C. § 1125(a)(l)(A)
• Count II: Federal Unfair Competition in Violation of 15 U.S.C. § 1125(a)(l)(B)
• Count III: Breach of Fiduciary Duty
• Count IV: Indiana Unfair Competition and Tortious Interference with a Business Relationship
• Count V: Tortious Interference with a Prospective Economic Advantage
• Count VI: Illinois Deceptive Trade Practices
• Count VII: Federal Trademark Infringement

• Count VIII: Indiana and Illinois Trademark Infringement

Landmark seeks equitable relief, damages, including punitive damages, costs and attorneys’ fees.

April 14, 2016

Indiana Patent Litigation: Infringement of Collision Warning Patent Alleged in Indiana Lawsuit

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Patent lawyers for Plaintiff Gary D. Pignato of Illinois filed an infringement lawsuit in the Southern District of Indiana against Defendants Mobileye, Inc. of Jericho, New York and its parent company Mobileye N.V. of Jerusalem, Israel.

Defendants have been sued on allegations of infringing U.S. Patent No. 6,240,346 (“the ‘346 patent”), titled “System with Light Display and Data Recorder for Monitoring Vehicle in Relation to Adjacent Vehicle.” The ‘346 patent is directed to a system for mounting in a vehicle for monitoring leading and trailing vehicles as well as generating and storing data relating to these vehicles, such as speed and proximity to the vehicle containing the technology. This patent has been issued by the U.S. Patent and Trademark Office.

Plaintiff alleges that Defendants’ Mobileye 5-Series line of driver-assistance systems, and in particular the Mobileye 560 System, include Forward Collision Warning technology that infringes the ‘346 patent. Plaintiff asserts that, although it offered to license to Defendants the technology protected by the ‘346 patent, Defendants instead chose to manufacture the accused products without such a license and, in doing so, infringe multiple claims of Plaintiff’s patent.

In this lawsuit, filed by Indiana patent attorneys for Plaintiff, the following claims are alleged:

• Count I: Direct Infringement of the ‘346 Patent
• Count II: Inducement to Infringe the ‘346 Patent

• Count III: Contributory Infringement of the ‘346 Patent

Plaintiff Pignato seeks injunctive relief; damages, including treble damages if infringement is found and determined to be willful; costs and attorneys’ fees.

April 13, 2016

Indiana Copyright Litigation: Wine & Canvas Accused of Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – An attorney for Plaintiff Megan Aroon Duncanson of Florida commenced litigation in the Southern District of Indiana alleging copyright infringement.

Defendants in this lawsuit are Wine and Canvas IP Holdings LLC (Indianapolis, Indiana) (“IP Holdings”) and the following entities, which Plaintiff contends are “licensees” of Wine and Canvas IP Holdings: Wine and Canvas Development, LLC (Indianapolis, Indiana), WNC of Cincinnati LLC (Ohio), WNC of Columbus LLC (Ohio), WNC of Dayton LLC (Ohio), WNC of Detroit LLC (Michigan), WNC of Des Moines LLC (Iowa), WNC of Fort Wayne LLC (Indiana), WNC of Las Vegas LLC (Nevada), WNC of Napa Sonoma LLC (California), WNC of Odessa LLC (Texas), WNC of Portland LLC (Oregon), WNC of South Bend LLC (Indiana), WNC of San Francisco LLC (California), Tamara McCracken a/k/a Tamra Scott (Indiana) and Anthony Scott (Indiana).

Under the business names “Wine and Canvas” and “Wine & Canvas,” Defendants offer art classes to students who paint while enjoying cocktails. Each class involves a “Featured Painting” that the students paint, which is purportedly selected by a licensee from a portfolio maintained by IP Holdings. That painting is also allegedly displayed on the IP Holdings website prior to the class. Plaintiff contends that IP holdings “often credits the author of the painting as simply ‘Wine and Canvas.'”

Plaintiff contends that by using her works, Defendants infringed the following copyrights-in-suit, which have been registered with the U.S. Copyright Office:

The following two works were copyrighted as part of collections titled “Published Paintings 2006” and “Published Paintings 2008” and are also at issue in the lawsuit:

In this federal lawsuit filed under the Copyright Act, Plaintiff avers direct, contributory, and vicarious contributory copyright infringement of her rights to reproduce, make derivative works, and publicly display her works. The copyright lawyer for Plaintiff lists 36 counts in total, with the first 7 asserting copyright infringement before registration of the works and the remainder asserting infringement after registration.

Plaintiff Duncanson contends that both IP Holdings and its licensees acted willfully and knowingly. She seeks various forms of relief, including equitable relief; damages, with enhanced damages for acts found to be willful; costs and attorney fees.

Practice Tip: Wine & Canvas has litigated in Indiana federal courts in the past alleging infringement of its trademark. See, e.g.:

• Wine & Canvas Development Sues YN Canvas & Art Uncorked for Trademark Infringement of the WC Marks
• Wine & Canvas Litigation Narrowed and Clarified by Court
• Southern District of Indiana Dismisses Wine & Canvas’ Suit for Lack of Personal Jurisdiction
• Court Strikes Response Brief Due to Untimely, Overlong Filing

• Trademark Plaintiff Abused Legal Process; Trademark Defendant Awarded an Additional $175,000 in Attorneys’ Fees

April 9, 2016

Patent Office Issues 205 Patents To Indiana Citizens in March 2016

By Overhauser Law Offices, LLC

The U.S. Patent Office issued the following 205 patent registrations to persons and businesses in Indiana in March 2016, based on applications filed by Indiana patent attorneys:

	Patent No.	Title
1	D752,718	Lever
2	D752,717	Faucet
3	D752,517	Desktop receptacle
4	D752,454	Wireless transmitter
5	9,299,899	Flexible lighting device having unobtrusive conductive layers
6	9,299,242	Distributed healthcare communication system
7	9,298,881	Method, system and device for voice message recording and playback at point of care
8	9,297,822	Laboratory system for handling sample tube racks, an alignment element for sample tube racks and a rack tray receiver assembly

April 6, 2016

Indiana Trademark and Copyright Litigation: Coach Sues Indiana Retailer on Allegations of Counterfeiting

By Overhauser Law Offices, LLC

South Bend, Indiana – Intellectual property attorneys for Plaintiffs Coach, Inc. of New York, New York and Coach Services, Inc. of Jacksonville, Florida (collectively, “Coach”) filed an intellectual property complaint in the Northern District of Indiana.

Coach contends that Defendants Zip Thru Mart, Charles Estok Sr., and Janice Estok, all of Knox, Indiana, infringed various Coach trademarks, which have been registered by the U.S. Patent and Trademark Office. In addition to trademark infringement under the Lanham Act, Coach asserts that Defendants have committed trade dress infringement, trademark dilution and counterfeiting under the Lanham Act, copyright infringement under the Copyright Act, as well as trademark infringement, unfair competition and unjust enrichment under Indiana common law.

Coach’s allegations stem from Defendants’ purported “designing, manufacturing, advertising, promoting, distributing, selling, and/or offering for sale” products that bear counterfeit Coach trademarks. Defendants are further accused of having engaged in this behavior “negligently and/or knowingly and intentionally, with reckless disregard or willful blindness to Coach’s rights, or with bad faith.”

In support of its allegations of infringement and related conduct, Coach states that it sent an investigator to the Zip Thru Mart. Its investigator saw multiple items bearing Coach trademarks, which Coach contends were counterfeit. Additional goods bearing purportedly counterfeit trademarks were seized by a Homeland Security Investigations officer during a subsequent visit to the business.

The intellectual property listed in this litigation includes numerous trademarks for “Coach,” “Coach New York,” “CC,” “Poppy” and similar trademarks. Coach also claims infringement of its copyrights, listing copyright registrations, registered with the U.S. Copyright Office, for its “Legacy Stripe” design (registration number VA000704542) “Signature C” design (registration number VA0001228917), “Op Art” design (registration number VA0001694574) and “Horse & Carriage” design (registration number VA0001714051).

In this Indiana lawsuit, filed by trademark and copyright attorneys for Coach, the intellectual property claims are listed as follows:

• Count I: Trademark Counterfeiting, 15 U.S.C. § 1114
• Count II: Trademark Infringement, 15 U.S.C. § 1114
• Count III: Trade Dress Infringement, 15 U.S.C. § 1125(a)
• Count IV: False Designation of Origin and False Advertising, 15 U.S.C. § 1125(a)
• Count V: Trademark Dilution, 15 U.S.C. § 1125(c)
• Count VI: Copyright Infringement, 17 U.S.C. § 501
• Count VII: Common Law Trademark Infringement
• Count VIII: Common Law Unfair Competition

• Count IX: Unjust Enrichment

In addition to statutory damages of $2 million per counterfeit mark, per type of counterfeit good, Coach seeks equitable relief; additional damages, both statutory and punitive; costs and attorneys’ fees.

Practice Tip: Coach has a history of requesting statutory damages that are considerably in excess of what has eventually been awarded by the courts. For example, in Coach, Inc. v. Paula’s Store Sportwear LLC, 2014 WL 347893 (D.N.J. Jan. 31, 2014), Coach requested $800,000 in statutory damages – $100,000 for each of eight counterfeited marks – from a shop from which four counterfeit Coach wallets and two counterfeit Coach handbags had been seized. When awarding damages to Coach, the court noted that the retail value of the six counterfeit items was less than $1500 and awarded $5000 for each of the eight marks that had been counterfeited, multiplied by the two types of goods, for a total statutory damages award of $80,000.

April 5, 2016

Indiana Copyright Litigation: Design Basics Files Two Additional Infringement Lawsuits in the Northern District

By Overhauser Law Offices, LLC

South Bend, Indiana – Plaintiff Design Basics, LLC of Omaha, Nebraska filed two additional lawsuits in the Northern District of Indiana. Both complaints, filed by Indiana attorneys for Design Basics, allege violations of copyright law.

Defendant in the first lawsuit is Straight Talk Construction, Inc. of Goshen, Indiana. Defendants in the second lawsuit are W R Birkey & Associates Inc., doing business as Birkey Homes and W.R. Birkey Realty; and Wayne Birkey, doing business as Birkey Homes and W.R. Birkey Realty of Granger, Indiana (collectively, “Birkey”). Plaintiff alleges that Defendants in both lawsuits infringed its copyrighted architectural designs, which have been filed with the U.S. Copyright Office.

Copyrights alleged to have been infringed by Straight Talk:

Title Registration Certificate Nos.

Plan No. 8095 – Sun Valley VA 729-290, 729-256
Plan No. 3121 – Bellamy VA 624-158, 624-159 & 710-606

Plaintiff contends that Straight Talk committed infringement when it published, distributed, marketed, advertised and/or constructed in the marketplace Design Basics’ copyrighted architectural designs, which were offered by Straight Talk as “The Jordan,” “The 1009 Parade Home” and “Sunrise.”

Copyrights alleged to have been infringed by Birkey:

Title Registration Certificate Nos.

Plan No. 1032 – Monte Vista VA 282-203, 694-095 & 752-162
Plan No. 1330 – Trenton VA 314-016, 694-094 & 756-041
Plan No. 1455 – Newberry VA 344-857, 694-093 & 710-605
Plan No. 1559 – Bancroft VA 344-870, 694-094 & 752-162
Plan No. 1752 – Lancaster VA 371-204, 694-094 & 756-041
Plan No. 2244 – Standley VA 434-218 & 752-162
Plan No. 2249 – Normandy VA 434-208, 694-088 & 726-372
Plan No. 2285 – Prairie VA 467-639, 694-094, 726-354& 1-921-718
Plan No. 2408 – Crawford VA 485-123, 694-093, 756-041& 1-921-776
Plan No. 2414 – Stanton VA 485-125, 694-093, 726-361& 1-926-487
Plan No. 2656 – Castelar VA 542-694, 826-741 & 1-926-492
Plan No. 2701 – Ambrose VA 524-308, 694-093, 710-606& 1-926-479
Plan No. 2702 – Ellison VA 542-690 & 1-926-477

The Birkey Defendants are alleged to have infringed Plaintiff’s works by copying, publishing, distributing, advertising, marketing, selling and/or constructing in the marketplace Plaintiff’s copyrighted material. The purportedly infringing designs are marketed by Birkey under the following model names: Andrea, Appleton, Ashbury, Belmont, Bridgeport, Britney, Hallbrook, Heather Lake, Kensington, Kingsbury, Megan, Miranda, Normandy, Oakridge, Sawyer, Sherwood, Sinclair, and Zachery.

Design Basics seeks equitable relief, damages, costs and attorneys’ fees.

Practice Tip: Design Basics has filed numerous federal complaints alleging copyright infringement. In Indiana, it has filed 10 separate lawsuits since February: Design Basics Sues Builders and Others Alleging Infringement of Copyrighted Architectural Designs, Design Basics Files Additional Indiana Lawsuit and Plan Pros Added as Plaintiff in Newest Design Basics Lawsuit. Nationwide, Design Basics, or entities that appear to be related to the company, has filed more than 60 intellectual property lawsuits since 2008 in the federal courts of Colorado, Iowa, Illinois, Kansas, Michigan, Missouri, Nebraska, New Hampshire, Ohio, Pennsylvania, South Carolina, South Dakota and Wisconsin.

April 4, 2016

182 Trademark Registrations Issued to Indiana Companies in March 2016

By Overhauser Law Offices, LLC

The U.S. Trademark Office issued the following 182 trademark registrations to persons and businesses in Indiana in March 2016 based on applications filed by Indiana trademark attorneys:

Registration No.	Word Mark	Click To View
4925344	DRINK INDIANA BEER GREAT BEER MADE HERE	TSDR
4914831	BEEZA	TSDR
4914607	NU VU FUELS	TSDR
4929228	RIGHT PART, RIGHT TIME, EVERY TIME	TSDR
4927652	AMERICAN EAGLE	TSDR
4927623	LAREDO	TSDR
4927568	MATCHA-GO!	TSDR
4927517	JUNKYARD GODDESS	TSDR
4927490	TELLTHEWORLD	TSDR
4927355	GAME CHANGER	TSDR
4927317	FARM TO FETE	TSDR
4927315	FARM TO MEETING	TSDR
4927264	B	TSDR

March 31, 2016

Copyright Litigation: Authors and Authors Guild Ask to be Heard by Supreme Court in Copyright Infringement Lawsuit Against Google

By Overhauser Law Offices, LLC

Washington, D.C. – Following a ruling by the Second Circuit Court of Appeals in favor of Google, Inc., the 2005 class-action lawsuit The Authors Guild et al. v. Google, Inc. has headed to the U.S. Supreme Court.

Copyright litigators for Plaintiffs The Authors Guild et al. are asking the high court to hear the lawsuit, which alleges copyright infringement by the publication by Google of Google’s digital book library. Plaintiffs contend that Google, which seeks permission from the owners of the copyrighted works (typically libraries) but not from the authors of the works, has committed massive copyright infringement. Amicus curiae briefs have been filed with the Court by numerous parties. Among them are several notable authors including Malcolm Gladwell, Margaret Atwood, and Steven Sondheim.

Google has defended against the allegations by arguing, inter alia, that its use of the copyrighted material was permissible as a fair use.

Circuit Judge Denny Chin, sitting by designation, issued the opinion for the Southern District of New York. He agreed with Google that its use of the material was properly classified as a fair use, writing:

In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.

The Second Circuit affirmed.

The questions presented by Plaintiffs to the Supreme Court are:

1. Whether, in order to be “transformative” under the fair-use exception to copyright, the use of the copyrighted work must produce “new expression, meaning, or message,” as this Court stated in Campbell and as the Third, Sixth, and Eleventh Circuits have held, or whether the verbatim copying of works for a different, non-expressive purpose can be a transformative fair use, as the Second, Fourth, and Ninth Circuits have held.
2. Whether the Second Circuit’s approach to fair use improperly makes “transformative purpose” the decisive factor, replacing the statutory four-factor test, as the Seventh Circuit has charged.
3. Whether the Second Circuit erred in concluding that a commercial business may evade liability for verbatim copying by arguing that the recipients of those copies will use them for lawful and beneficial purposes, a rationale that has been flatly rejected by the Sixth Circuit.

4. Whether a membership association of authors may assert copyright infringement claims on behalf of its members.

March 30, 2016

Indiana Copyright Law: Lawsuit by Frequent Copyright Litigant Dismissed for Lack of Jurisdiction

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Judge Jane Magnus-Stinson dismissed a lawsuit by Indiana copyright attorney and professional photographer Richard Bell against Defendant Find Tickets, LLC of Alpharetta, Georgia for lack of personal jurisdiction.

In June 2015, Bell sued Find Tickets in the Southern District of Indiana asserting copyright infringement. He stated that the Georgia-based company had published a copyrighted photo on its website, www.findticketsfast.com, without his permission. The photo in question was one that Bell had taken of the downtown Indianapolis skyline. It had been registered by the U.S. Copyright Office under Registration No. VA0001785115.

On behalf of Find Tickets, a copyright lawyer asked the court to dismiss the complaint for lack of jurisdiction, averring that Find Tickets “does not maintain any offices in Indiana, has no employees in Indiana, holds no assets in Indiana, pays no taxes to the state of Indiana, and has no bank or other financial institution accounts in Indiana.” It was further stated that the business was owned by two Georgia residents, neither of whom had ever set foot in Indiana.

The court turned to a constitutional analysis of the due process requirements for personal jurisdiction, as elucidated by the Seventh Circuit in Advanced Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 800-01 (7th Cir. 2014). Citing that appellate case, the district court stated:

Due process is satisfied so long as the defendant had “certain minimum contacts” with the forum state such that the “maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.'” The relevant contacts are those that center on the relations among the defendant, the forum, and the litigation. However, “[f]or a State to exercise jurisdiction consistent with due process, the defendant’s suit-related conduct must create a substantial connection with the forum State.” Thus, the relation between the defendant and the forum “must arise out of contacts that the ‘defendant himself‘ creates with the forum . . . .” Moreover, although no special test exists for internet-based cases, the Court focuses on whether the defendant has purposely exploited the Indiana market beyond the availability of the website in the forum state. (Citations omitted).

The district court was unpersuaded by Bell’s arguments, opining that the Seventh Circuit precedent set forth in Advanced Tactical “established that a defendant who ‘maintains a website that is accessible to Indiana residents should not be haled into court simply because the defendant owns or operates a website that is accessible in the forum state, even if it is ‘interactive.'”

The court similarly held that, as with Advanced Tactical, Defendant’s sales to residents of the forum state were insufficient to establish personal jurisdiction as it had not been demonstrated that such sales were related to the lawsuit.

Finding no personal jurisdiction over Defendant, the court dismissed the lawsuit without prejudice.

Practice Tip: Overhauser Law Offices, publisher of this blog, represented Defendants Real Action Paintball, Inc. and its president in the appeal to the Seventh Circuit.