Indiana Intellectual Property Law News

December 21, 2015

Indiana Trademark Litigation: Indiana Botanic Gardens Sues VitalMax Vitamins Alleging Infringing Use of “Accu-Hear”

Hammond, Indiana – Plaintiff Indiana Botanic Gardens, Inc. of Hobart, Indiana filed a trademark infringement lawsuit in the Northern District of Indiana alleging that Almark Products, Inc. d/b/a VitalMax Vitamins (“VitalMax”) of Delray Beach, Florida infringed its trademarked “ACCU HEAR”, U.S. Trademark No. 3,010,289, which has been registered with the U.S. Patent and Trademark Office.

Indiana Botanic allege that it has been in the business of processing, packaging and otherwise selling variety of herbal products for many years. It contends that it has done so under the ACCU HEAR trademark, which has been registered for use in connection with dietary supplements.

In this trademark litigation, Indiana Botanic accuses Defendant VitalMax of production, labeling, sale and offering for sale of a nutritional supplement offered under the name ACCU-HEAR. This term, Indiana Botanic states, is confusingly similar to Plaintiff’s ACCU HEAR trademark and will irreparably harm Plaintiff by diminishing the reputation and goodwill of that trademark. Indiana Botanic asserts that VitalMax infringed the ACCU HEAR trademark willfully and deliberately.

In this federal complaint, filed by a trademark attorney for Indiana Botanic, the following is alleged:

• Count I: Federal Trademark Infringement

• Count II: Unfair Competition Under Federal Law

The “Jurisdiction and Venue” section of this federal complaint lists additional claims – “state trademark infringement, injury to business reputation and dilution, deceptive trade practices, deceptive business practices and unfair competition under the laws of the State of Indiana” – but those claims were not included as separate counts.

Indiana Botanic seeks equitable relief along with damages, including punitive damages, costs and attorneys’ fees.

December 18, 2015

Indiana Copyright Law: District Court Terminates Copyright Suit Over Photo; Plaintiff Appeals

By Overhauser Law Offices, LLC

Chicago, Illinois – One of the copyright lawsuits of Plaintiff Richard N. Bell of McCordsville, Indiana has been terminated by the trial court. Bell filed an appeal on multiple grounds with the United States Court of Appeals for the Seventh Circuit.

This Indiana lawsuit alleged copyright infringement of a photo that Bell, an Indiana copyright lawyer and professional photographer, took and copyrighted. The photo, U.S. Copyright Registration No. VA0001785115, was of the Indianapolis skyline. Bell has sued numerous Defendants alleging copyright infringement of this photo. In this lawsuit, the Defendants were Cameron Taylor, Taylor Computer Solutions, Insurance Concepts, Fred O’Brien, and Shanna Cheatham, all of Indianapolis, Indiana.

On December 4, 2015, District Judge Tanya Walton Pratt of the Southern District of Indiana entered a final judgment in favor of all Defendants and terminated the case. Within days, Bell appealed to the Seventh Circuit. Bell contends that the district court acted improperly regarding:

• The district court’s opinion, order and final judgment granting summary judgment in favor of the Defendants;
• The denial of “Plaintiff’s Second Motion to Compel and sanctions against Defendants for failing to answer Interrogatories and product [sic] requested documents … on October 16, 2013″ as well as his “appeal to the District Judge” on June 9, 2014 regarding that motion;
• The denial of “Plaintiffs [sic] Motion for Leave to File Fourth Amended Complaint”;
• The denial of an additional motion to compel and for sanctions;
• The district court’s ruling on partial summary judgment;
• The district court’s ruling on “Bell’s Motion to Relieve Plaintiff from Orders of the Court”; and

• The district court’s entry of final judgment against Bell.

Practice Tip: This is not the first time Bell has appealed in this litigation. We blogged about a prior appeal to the Seventh Circuit wherein Bell, after appealing, then argued that his appeal was premature and should not yet be heard by the appellate court.

December 17, 2015

Patent Law: Patent Litigation May Be Impacted by Amendments to Federal Rules of Civil Procedure

By Overhauser Law Offices, LLC

Washington, D.C. – The United States Supreme Court ordered the Federal Rules of Civil Procedure to be amended following last year’s approval of the changes by the Judicial Conference Advisory Committee. Civil Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55 and 84, and the Appendix of Forms were affected by this change. The revisions took effect on December 1, 2015.

These changes may affect patent litigation at the trial court level. Most relevantly, Rule 84, “Forms,” was abrogated. That change, in turn, eliminated the Appendix of Forms, including Form 18, which had provided a basic sample complaint outlining what constituted a sufficient allegation of direct patent infringement. Rule 84 had provided that the “forms contained in the Appendix of Forms are sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate.”

Practice Tip: It appears that the abrogation of Rule 84 will modify the pleading standard for patent litigation, raising it to the higher standard set forth by the Supreme Court in Twombly and Iqbal. It is unclear how federal courts will interpret these revisions. Consequently, Indiana patent attorneys, and especially patent litigators, would be wise to keep abreast of rulings on motions to dismiss for failure to state a claim under Rule 12(b)(6) as well as motions for a more definite statement under Rule 12(e) as the contours of the revised pleading standard in the context of patent infringement litigation are clarified.

December 16, 2015

Indiana Copyright Litigation: Remaining Copyright Defendants in Bell Lawsuit to be Dismissed

By Overhauser Law Offices, LLC

Indianapolis, Indiana – District Judge Tanya Walton Pratt of the Southern District of Indiana denied Plaintiff’s request for partial summary judgment for declaratory relief and injunctive relief against Defendants in a copyright dispute over the use of Plaintiff’s copyrighted photograph of Indianapolis.

This lawsuit dates back to June 7, 2011 when Plaintiff Richard N. Bell of McCordsville, Indiana sued 22 Defendants for alleged infringement of his copyrighted photo, U.S. Copyright Registration No. VA0001785115. Bell amended his complaint multiple times, with the third amended complaint becoming the operative pleading on December 6, 2012.

In May 2013, the litigation was severed into three separate cases, including the one that is the subject of this opinion. In this lawsuit, Bell, who is both an Indiana copyright attorney and a professional photographer, accused Defendants Insurance Concepts, Fred O’Brien and Shanna Cheatham of copyright infringement. Bell sought injunctive relief along with damages, costs and attorney’s fees.

A prior opinion by the court held for these Defendants on the issues of Bell’s state law claims and copyright damages claims. In this order, the court addressed the parties’ cross motions for partial summary judgment on the remaining issues – declaratory and injunctive relief.

The court first cited the four-factor test necessary to obtain an injunction, which states that a plaintiff must show:

(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.

The court noted that in a prior ruling, it had concluded that Bell had failed to establish any damages, including no damages that would rise to the level of “irreparable injury.” Consequently, the first factor was not met. The court then opined that an injunction was also unwarranted under the second factor, as Bell could again institute litigation upon finding any future copyright violations by a Defendant. Having found that at least two of the four elements required for an injunction were missing, the court declined to address the remaining factors.

The court similarly declined to exercise its discretion to grant declaratory relief on the grounds that, after having been notified, the Defendants had promptly removed the copyrighted photo and, moreover, the websites on which the photo had been published no longer existed. As such, it concluded that there was no “substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”

The court consequently denied Plaintiff Bell’s motion for partial summary judgment and his request for declaratory and injunctive relief. Defendants’ motion for partial summary judgment was granted.

Practice Tip:

• Attorney/Photographer Sues Georgia Real Estate Company for Infringing Copyrighted Photo
• Sovereign Immunity May Take a Toll on Bell’s Latest Copyright Lawsuit
• Appellate Court Dismisses Copyright Appeal as Premature
• Bell Rings in the Holiday Weekend with a New Copyright Lawsuit
• Bell Files New Copyright Infringement Lawsuit
• Bell Sues Georgia-Base FindTicketsFast.com for Copyright Infringement
• Richard Bell Files Two New Copyright Infringement Lawsuits
• Court Prevents Copyright Plaintiff Bell from Outmaneuvering Legal System; Orders Bell to Pay Almost $34,000 in Fees and Costs
• Three Default Judgments of $2,500 Ordered for Copyright Infringement

• Court Orders Severance of Misjoined Copyright Infringement Complaint

• Richard Bell Files Another Copyright Infringement Lawsuit

December 14, 2015

Indiana Copyright Litigation: Copyright Defendant Removes Lawsuit to Federal Court

By Overhauser Law Offices, LLC

Indianapolis, Indiana – An Indiana copyright lawyer for Defendant Wrightspeed, Inc. of San Jose California filed a notice of removal in the Southern District of Indiana on the basis of both federal-question jurisdiction and diversity-of-citizenship jurisdiction.

Plaintiff Precision Rings, Inc. of Indianapolis, Indiana had filed its lawsuit in Marion County Superior Court seeking declaratory relief, injunctive relief, unspecified damages and attorney’s fees. Among Plaintiff’s contentions was the breach of a nondisclosure agreement. Included in this alleged breach was the misappropriation of Plaintiff’s trade secrets, which involved the use or disclosure by Defendant of certain copyrighted drawings that Plaintiff had registered with the U.S. Copyright Office.

Defendant Wrightspeed contended that federal-question jurisdiction was proper and asked that the federal court in the Southern District of Indiana hear and decide all further matters in the litigation. Defendant asserted that the complaint arose under copyright law because Plaintiff’s complaint included a claim that would require construction of the Copyright Act. Consequently, subject matter jurisdiction rested exclusively in federal court.

Defendant Wrightspeed also asserted that diversity-of-citizenship jurisdiction was a proper basis for the Indiana federal court to hear the litigation. The parties were completely diverse, it stated, with Plaintiff being a citizen of Indiana and Defendant being a citizen of both Delaware and California. Defendant contended further that, considering the potential damages, fees and costs, the amount at stake was well in excess of the $75,000 threshold necessary for diversity-of-citizenship jurisdiction.

December 11, 2015

Indiana Trademark Litigation: Trademark Lawsuit Filed Over Use of “All Star” Name

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Plaintiff All Star Heating & Cooling, Inc. (“All Star”) of Camby, Indiana sued in the Southern District of Indiana alleging that Quality Heating and Air, Inc. (“Quality Heating”) d/b/a All Star Air and Richard Cusick (“Cusick”) of New Palestine, Indiana are infringing its trade name.

Both Plaintiff and Defendants are in the business of providing heating, venting and air conditioning service, installation and repair. Plaintiff All Star states that it began business in December of 2005 and that it has used the same name since that time. It also indicates that it has been using “the same trade dress since 2011.” This trademark infringement complaint does not indicate that Plaintiff’s business name has been registered by the U.S. Patent and Trademark Office.

The complaint states that Defendant Cusick, who is believed to be the owner and operator of Defendant Quality Heating, began business in 2014 under the assumed business name All Star Air. Plaintiff asserts that Quality Heating is currently located less than 30 miles from Plaintiff’s location.

Plaintiff All Star contends that customers and vendors have been confused by Defendants’ use of the All Star name, stating that they have “wrongly believed that there is an association or connection between the Plaintiff’s business and the Defendants’ business.” Plaintiff avers that, as a consequence, Defendants are liable for trade name infringement and unfair competition.

In its lawsuit, filed by an Indiana trademark lawyer, Plaintiff lists the following counts:

• Count I: Federal Unfair Competition
• Count II: State and Common Law Trademark Infringement

• Count III: Common Law Unfair Competition

All Star seeks equitable relief, including an injunction; damages, including treble damages; costs and attorney fees.

December 8, 2015

Indiana Copyright Litigation: Brick Shirt House Alleges Infringement of Copyrighted Image of Beer Mug in the Shape of Indiana

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Plaintiff The Brick Shirt House, LLC of Indianapolis, Indiana filed a copyright infringement complaint in the Southern District of Indiana. The lawsuit alleges that Indiana on Tap, LLC of Fishers, Indiana infringed Plaintiff’s copyrighted art work “Drink Indiana,” Copyright Registration No. VA0001895289, which has been registered with the U.S. Copyright Office.

Brick Shirt House is engaged in the business of printing on apparel and other merchandise. An Indiana copyright attorney for Brick Shirt House asserts in this lawsuit that the visual art at issue in this litigation, “Drink Indiana,” was created in October 2011 by Alex Janeczek, manager and owner of Brick Shirt House. The art work features an Indiana-shaped beer mug with beer foam spilling over the top.

Around December 16, 2013, Janeczek discovered a drawing in use by Indiana On Tap that Plaintiffs contend is “substantially similar to Drink Indiana Beer Mug, as it copied, verbatim, the essential elements of Drink Indiana Beer Mug.” He also learned of Indiana On Tap’s intent to distribute merchandise with the accused artwork. That same day or shortly thereafter, Brick Shirt House indicates that it registered its art work with the U.S. Copyright Office. Approximately a week later, Brick Shirt House e-mailed Indiana On Tap and requested that Indiana On Tap cease using the artwork, stating its belief that the Indiana On Tap work infringed Brick Shirt House’s copyrighted art. Several e-mails were exchanged but apparently no resolution was reached.

In July 2014, Indiana On Tap again advertised its intent to sell t-shirts incorporating the accused artwork. In response, a copyright attorney for Brick Shirt House sent a cease and desist demand letter to Indiana On Tap. Indiana On Tap denied infringement and refused to cease use of the graphic. Plaintiffs indicate that additional instances of copyright infringement were subsequently committed by Indiana On Tap.

This lawsuit, filed December 4, 2015 by an Indiana copyright lawyer for Brick Shirt House, lists a single count: copyright infringement, which Plaintiffs state has been done willfully. Brick Shirt House seeks equitable relief, including impoundment; damages; costs and attorney’s fees.

December 7, 2015

Criminal Counterfeit Law: U.S. Marshals Selling Thousands of Bottles of Non-Counterfeit Wine of Convicted Wine Counterfeiter

By Overhauser Law Offices, LLC

Washington, D.C. – The U.S. Marshals are currently auctioning approximately 4,711 bottles of wine, deemed authentic, that belonged to Rudy Kurniawan, the man convicted of fraud in federal court in 2013 for producing and selling millions of dollars of counterfeit wine.

The wine is being sold in two online auctions, one that started November 24 and one that started December 1 at www.txauction.com. The auctions close on December 8 and December 15, respectively.

“It may sound ironic that we are selling wine that belonged to a convicted wine counterfeiter,” said Assistant Program Manager Jason Martinez of the U.S. Marshals Service Asset Forfeiture Division, “but we are duty-bound to recoup as much value from the sale of these authentic wines as possible to compensate those who were victims of his fraud.”

December 4, 2015

Federal Circuit Patent Law: Quality Control Testing Is Not Patent Infringement; Does Not “Make” a Product as Contemplated Under § 271(g)

By Overhauser Law Offices, LLC

Washington, D.C. – The United States Court of Appeals for the Federal Circuit heard a patent infringement lawsuit styled Momenta Pharms., Inc. v. Teva Pharms. USA Inc. on the issue of whether Defendants’ quality control procedures infringed the patent-in-suit. This appeal included a companion case, Momenta Pharms., Inc. v. Amphastar et al. Both cases were heard at the trial court level in the United States District Court for the District of Massachusetts by Judge Nathaniel M. Gorton.

Momenta was the first to market enoxaparin, an anticoagulant drug, in generic form. Momenta also owns U.S. Patent No. 7,575,886 (“the ‘886 patent”), which includes claimed methods designed to ensure that every batch of enoxaparin was of sufficient quality. Momenta asserted the ‘886 patent against other manufacturers, including Teva and Amphastar, which also wanted to bring a generic version of enoxaparin to market. It contended that Defendants’ quality-control measures infringed the ‘886 patent.

In this litigation, the United States District Court for the District of Massachusetts determined that patent infringement had not taken place, listing two separate grounds. First, the asserted claims were directed towards analyzing enoxaparin for the purpose of quality control, not manufacture of the drug, which did not amount to patent infringement. Second, the district court found that use of the analytical methods of the ‘886 patent were protected under the safe harbor provisions of 35 U.S.C § 271(e)(1). Momenta appealed.

Circuit Judges Dyk, Moore and Wallach of the Federal Circuit ruled on this appeal in November. Writing for the court, Judge Wallach affirmed the trial court’s ruling that Defendants Teva and Amphastar had not infringed the ‘886 patent, holding that infringement under 35 U.S.C. § 271(g) occurs when “making” a product and that quality-control testing, thus, did not constitute patent infringement.

The Federal Circuit vacated the district court’s judgment that the activities were also protected under the “safe harbor” provisions within § 271(e)(1) and remanded this issue to the district court for further inquiry.

December 1, 2015

161 Trademark Registrations Issued to Indiana Companies in November 2015

By Overhauser Law Offices, LLC

The U.S. Trademark Office issued the following 161 trademark registrations to persons and businesses in Indiana in November 2015 based on applications filed by Indiana trademark attorneys:

Registration No.	Word Mark	Click To View
4844317	SYMPHONY RANGEVUE	View
4859897	K-POOL	View
4859843	BELLESENTIALS	View
4859816	BRUSYBRUSH	View
4859491	PAINT YOUR PET PARTY	View
4859402	FIRSTCUT	View
4859302	ZAYCON	View
4859276	TURILLIUM	View