Indiana Intellectual Property Law News

June 19, 2015

Indiana Trademark Litigation: ArcelorMittal Sues Arillotta et al. for Tarnishment, Deception and Forgery

Hammond, Indiana – Trademark attorneys for ArcelorMittal USA LLC of Chicago, Illinois sued alleging violations of intellectual property rights and other rights. The lawsuit, filed in the Northern District of Indiana, alleges that Albert Arillotta, Global Demolition and Recycling, LLC, NMC Metals Corporation, and Arillotta Enterprises, LLC, all of Swampscott, Massachusetts, engaged in false designation of origin and false endorsement; dilution by blurring and tarnishment; deception; forgery; and deceptive trade practices.

ArcelorMittal is a producer and supplier of steel products. It owns and operates a steelmaking facility in Burns Harbor, Indiana. ArcelorMittal claims rights in federal trademark registrations to “ArcelorMittal” (Reg. Nos. 3908649 and 3643643) and “Mittal” (Reg. No. 4686413).

In 2012, Plaintiff ArcelorMittal solicited proposals for the installation of a pig iron casting machine at its Burns Harbor steelmaking facility. Plaintiff indicates that Arillotta, through his company Arillotta Enterprises, Inc., submitted a proposal for the project but that it was rejected. Nonetheless, contends ArcelorMittal, Arillotta subsequently represented to various third parties that “Arcelor Mittal Burns Harbor” and Defendant(s) had, in fact, entered into a contract for such an installation. Plaintiff further claims in its federal lawsuit that Arillotta forged the signature of two individuals, Michael Rippey and Louis Schorsch, listed as officers of ArcelorMittal, on documents related to this false claim.

Plaintiff also indicates in this lawsuit that Arillotta, when later unable to make payments owing on another contract, falsely claimed that ArcelorMittal would wire transfer $338,200.00 to cover an initial payment. When no such payment was forthcoming, because Plaintiff indicates that no such agreement existed, the payee on that contract then began to demand the money directly from ArcelorMittal.

ArcelorMittal contends that, in sum, “Arillotta has forged contracts and purchase orders purporting to represent in excess of ten million dollars ($10,000,00.00) worth of commercial activities between the defendant companies and ArcelorMittal when, in fact, ArcelorMittal has not hired Arillotta or his companies to perform any of the work shown in the forged contracts and purchase orders.”

In its complaint against Arillotta and the other Defendants, trademark lawyers for ArcelorMittal list the following counts:

• Count I: False Designation of Origin and False Endorsement
• Count II: Dilution by Blurring and Tarnishment
• Count III: Deception

• Count IV: Forgery
• Count V: Deceptive Trade Practices

Plaintiff ArcelorMittal asks the court for injunctive relief, money damages, costs and attorneys’ fees.

June 18, 2015

Indiana Trademark Litigation: Imprimis Sues Hook’s Apothecary for Trademark Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Trademark lawyers for Imprimis Pharmaceuticals, Inc. of California filed an intellectual property lawsuit in the Southern District of Indiana alleging that Hook’s Apothecary, Inc. of Indiana, as well as unidentified Doe Defendants 1 through 20, infringed the following Imprimis Pharmaceuticals, Inc. trademarks: GO DROPLESS! (U.S. Serial No. 96143543), GO DROPLESS! – Logo (U.S. Serial No. 86143553), LESSDROPS (U.S. Serial No. 86497791), DROPLESS CATARACT THERAPY (U.S. Serial No. 86497090 ), and DROPLESS THERAPY (U.S. Serial No. 86497100), which have been registered by the U.S. Patent and Trademark Office.

Imprimis offers slow-releasing ophthalmic compositions containing triamcinolone acetate, moxifloxacin hydrochloride, triamcinolone acetate, and vancomycin. It offers these products for use in the treatment of acute infections of the eye and for use via intraocular injection. These products are sold under the trademarks at issue in this Indiana lawsuit. The products are also claimed to be the subject of patent applications numbers 14/361,242 and 14/227,819, which have been filed with the USPTO.

Hook’s has been accused of infringing all, or some subset, of these intellectual property rights. Imprimis claims that Hook’s has been manufacturing, marketing, and selling “copycat” “Dropless” formulations, the administration of which has been reported to have caused a high incidence of endophthalmitis and other related problems in patients recovering from cataract surgery. This, Imprimis contends, has created confusion, harmed the reputation of Imprimis’ inventions, and caused some physicians to cease ordering from Imprimis.

In this complaint, filed by trademark attorneys for Imprimis in Indiana federal court, the following counts are alleged:

• Infringement of Trademarks (Against All Defendants)
• Common Law Unfair Competition (Against All Defendants)
• Common Law Trademark and Trade Name Infringement (Against All Defendants)
• For Declaratory Relief under 28 U.S.C. § 2201 (Against All Defendants)
• For Injunctive Relief (Against All Defendants)

Imprimis asks for general and special damages, as well as a trebling of those amounts “because of the willful nature of said infringements”; for a judgment that Hook’s has violated §§ 1114 and 1125(a) of the Lanham Act; for a judgment that Hook’s has engaged in unfair competition under the common law; for injunctive relief; and for an award of the costs of litigation, including attorneys’ fees.

June 17, 2015

Indiana Copyright Litigation: Richard Bell Files Two New Copyright Infringement Lawsuits

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana attorney Richard Bell of McCordsville, Indiana filed two new lawsuits alleging copyright infringement in the Southern District of Indiana. The Defendants in the first lawsuit are WRTV of Indianapolis, Indiana, and DISH Network Corporation of Englewood, Colorado. The Defendant in the second copyright complaint is Larry Turner of Indianapolis, Indiana.

In two similar intellectual property complaints, Bell, an Indiana copyright lawyer and professional photographer, alleged infringement of a copyrighted photo of Indianapolis. This photo, Registration Number VA0001785115, has been registered by the U.S. Copyright Office. Bell claims that he owns the intellectual property rights to the photo.

In two separate lawsuits, filed in an Indiana federal court, Bell asserts that the Defendants used his copyrighted photo without having purchased a license. Each complaint lists one count, “Copyright Infringement and Unfair Competition.” Bell asks for injunctive relief; actual and/or statutory damages; and reimbursement of litigation costs, including attorneys’ fees.

June 16, 2015

Indiana Copyright Law: Court Prevents Copyright Plaintiff Bell from Outmaneuvering Legal System; Orders Bell to Pay Almost $34,000 in Fees and Costs

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Plaintiff and Indiana copyright attorney Richard Bell of McCordsville, Indiana was ordered by Judge Tanya Walton Pratt of the Southern District of Indiana to pay almost $34,000 in attorney’s fees and costs to Defendant Charles Lantz, whom Bell had sued on unsupported allegations of copyright infringement.

Indiana copyright attorney Richard Bell, who is also a professional photographer, has sued hundreds for copyright infringement. The lawsuits began in 2011. At issue in Bell’s spate of litigation were allegations of unauthorized use of his copyrighted photograph of the Indianapolis skyline, which had been registered at the U.S. Copyright Office. The ongoing saga of this multiplicity of copyright lawsuits took an interesting, if unsurprising, turn last week.

According to an article in The Indiana Lawyer, Bell has said that most Defendants whom he has sued have settled early. Acknowledging the expense of litigation – and the relative ease of escaping litigation by simply paying a settlement without any finding of liability – Bell said, “A responsible lawyer and their clients, they obviously know it’s going to be far more expensive to try it.”

A current copyright-infringement lawsuit, filed January 8, 2013 by Bell, named forty-seven Defendants. Forty-six of those Defendants were dismissed from the lawsuit, including some who settled and some against whom a default judgment was issued. Default judgments of $2,500 were awarded in this litigation.

One Defendant, Charles Lantz, refused to pay for copyright infringement that he had not committed and hired Indiana intellectual property attorney Paul Overhauser (publisher of this blog) to defend him. In December 2014, Lantz’s perseverance paid off and the court granted an unopposed motion for voluntary dismissal of the litigation against Lantz. Last week, Lantz’s perseverance paid off again when Overhauser, on behalf of Lantz, sought and was awarded $33,974.65 in attorney’s fees and costs from Plaintiff Bell.

The court explained that, because Bell’s copyright litigation against Lantz had been dismissed with prejudice, Lantz became the “prevailing party” under the Copyright Act. Under 17 U.S.C. § 505, in any civil copyright action, the district court may award litigation costs, including attorney’s fees, to the prevailing party.

In evaluating whether to exercise its discretion to award such costs to Lantz, the court stated, “Defendants who defeat a copyright infringement action are entitled to a strong presumption in favor of a grant of fees.” The court looked to the Fogerty factors, which are so named after Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994), a U.S. Supreme Court case involving the shifting of costs in copyright litigation. These factors are nonexclusive and include: “(1) the frivolousness of the action; (2) the losing party’s motivation for filing or contesting the action; (3) the objective unreasonableness of the action; and (4) the need to advance considerations of compensation and deterrence.”

The court found that each of these factors weighed against Bell. It stated that Bell had possessed no evidence against Lantz that would prove either a conversion or a copyright claim. It also characterized Bell’s motivation for filing the lawsuit as “questionable,” noting that Bell had attempted to save himself “extensive filing fees” by improperly joining defendants and had “sued forty-seven defendants and then quickly offered settlements to defendants who were unwilling to pay for a legal defense.”

Regarding the third and fourth factors, the court held that the litigation was objectively unreasonable, given that Lantz had been sued “without any evidence to support the claims.” The court then turned to the last of the Fogerty factors, the need to advance considerations of compensation and deterrence. It noted that Bell had leveraged his status as a practicing attorney “to file meritless suits and to attempt to outmaneuver the legal system” (which was perhaps a hat tip to the now-famous opinion written by Judge Otis D. Wright III, who employed similar language against another copyright plaintiff widely regarded as a copyright troll).

Finally, the court was not swayed by Bell’s assertions that Lantz had failed to inform Bell that the wrong defendant had been sued and that Lantz had incurred unnecessary attorney’s fees. In response to these claims, the court noted that Lantz had “denied liability at his first opportunity.” The court also opined that, while defense counsel is not required to take the most economical defense strategy in defending a copyright lawsuit, it appeared that the “most economical approach feasible” may have been taken.

With all Fogerty factors weighing against Bell and no viable opposition permitting either an escape from fees and costs or a lessening of the amount, the court awarded to Defendant Lantz $33,974.65, the full amount requested.

Practice Tip: The Indiana Lawyer wrote an interesting piece regarding Judge Pratt’s order. That article may be viewed here.

June 12, 2015

USPTO to Host Additive Manufacturing Partnership Meeting

By Overhauser Law Offices, LLC

Washington, D.C. – The U.S. Commerce Department’s United States Patent and Trademark Office (“USPTO”) will host an Additive Manufacturing Partnership Meeting on Wednesday, July 8, 2015 on the Alexandria campus. Additive manufacturing, sometimes called “3D printing,” refers to a group of new technologies that create objects from 3D computer models, usually by joining thin materials, layer upon layer. The meeting will serve as a forum for sharing ideas, experiences, and insights between individual users and representatives from the USPTO.

Additive manufacturing is used in the fields of jewelry, footwear, architecture, engineering and construction, automotive, aerospace, dental and medical industries, education, geographic information systems, civil engineering, and many others.

What: Additive Manufacturing Partnership Meeting

June 11, 2015

Indiana Trademark Litigation: Eco Elettrocomponenti Alleges Sale of Counterfeit Lights by National Supply

By Overhauser Law Offices, LLC

South Bend, Indiana – An Indiana trademark lawyer for Eco Elettrocomponenti SRL of Reggio Emilia, Italy (“Eco”) filed a trademark-infringement lawsuit in the Northern District of Indiana alleging that National Supply of Green Bay, Wisconsin sold counterfeit Eco products.

Plaintiff Eco is a manufacturer and supplier of components for lighting attractions. Among its products are cabochon lenses commonly referred to as “Star Lights.” Eco claims that its Star Light cabochon lenses have a distinct physical appearance and configuration. Eco indicates that it owns a trademark, Registration Number 4,401,967, for this distinct configuration.

Defendant National Supply sells specialty lighting and electrical products, including cabochon lenses. National Supply has been accused of having purchased counterfeit Star Lights for resale to consumers. In January 2015, a U.S.-based distributor of Eco’s Star Light contacted National Supply to discuss National Supply’s Internet sales of lenses advertised as Star Light lenses. Eco indicates that, in response to this discussion, National Supply voluntarily agreed not to sell Star Lights.

Eco contends that the sale of such lights by National Supply is nonetheless ongoing, stating that “National Supply offers for sale counterfeit ECO products.” Eco, via its Indiana trademark attorney, has sued National Supply, asserting that National Supply intentionally, knowingly, and willfully purchased and redistributed counterfeit Eco products. This trademark lawsuit asks the Indiana court for actual and/or statutory damages; a finding that this is an exceptional case meriting an award of costs, including attorneys’ fees and enhanced damages; and for injunctive relief.

June 10, 2015

Indiana Intellectual Property Litigation: DISH Network Accuses Indiana Resident of Piracy

By Overhauser Law Offices, LLC

New Albany, Indiana – Intellectual property attorneys for DISH Network L.L.C., EchoStar Technologies L.L.C., and NagraStar L.L.C., all of Englewood, Colorado (collectively, “DISH Network”), filed a lawsuit in the Southern District of Indiana alleging that Danny Abner of Paris Crossing, Indiana illegally intercepted, decrypted and viewed DISH Network satellite programming.

Defendant Abner has been accused by DISH Network of “circumventing DISH Network’s security system and receiving DISH Network’s satellite broadcasts of copyrighted television programming without payment of the required subscription fee.” This intellectual property lawsuit, brought in the Southern District of Indiana, claims Abner violated the Digital Millennium Copyright Act, 17 U.S.C. § 1201 et seq., the Federal Communications Act, 47 U.S.C. § 605 et seq., and the Electronic Communications Privacy Act, 18 U.S.C. § 2511 et seq.

According to DISH Network, Abner’s piracy occurred via the use of Nfusion Private Server (“NFPS”), a television-pirating service. Francis Philip, a/k/a Vgiddy, sold subscriptions to the NFPS service. Philip provided DISH Network with copies of his business records pertaining to Abner, which showed that Abner had purchased one or more subscriptions to the piracy service in 2012.

Through the NFPS piracy service, Abner allegedly obtained DISH Network’s digital “keys,” which he used to decrypt and view DISH Network programming. The type of piracy of which Abner is accused, Internet key sharing, is still possible despite DISH Network’s latest generation of security technology.

In the complaint, filed by intellectual property lawyers for DISH Network, the following counts are alleged:

• 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

DISH Network seeks injunctive relief, compensatory damages, punitive damages, and reimbursement for DISH Network’s costs, attorneys’ fees, and investigative expenses.

June 9, 2015

Indiana Patent Litigation: Donaldson Co. Sues Action Filtration Alleging Patent Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana patent attorneys for Donaldson Company, Inc. of Bloomington, Minnesota, (“Donaldson”) commenced an intellectual property lawsuit in the Southern District of Indiana alleging that Action Filtration, Inc. of Hope, Indiana infringed Patent No. 6,488,746, “Air Filter Assembly Having Non-Cylindrical Filter Elements for Filtering Air With Particulate Matter”; Patent No. D499,177, “Filter Element Having Oval Shape”; and Patent No. 7,264,656, “Air Filter Assembly Having Non-Cylindrical Filter Elements for Filtering Air With Particulate Matter,” which have been issued by the U.S. Patent Office.

Plaintiff Donaldson, established in 1915, is a worldwide provider of filtration systems and replacement parts. Defendant Action Filtration designs and manufactures replacement filters for dust collection and liquid filtration.

At issue in this Indiana patent lawsuit are three patents, to which Donaldson claims ownership: United States Patent No. 6,488,746 (“the ‘746 patent”), United States Design Patent No. D499,177 (“the ‘177 patent”) and United States Patent No. 7,264,656 (“the ‘656 patent”).

In this Indiana complaint, filed by patent lawyers for Donaldson, the following is alleged:

• Count I: Infringement of the ‘746 Patent
• Count II: Infringement of the ‘177 Patent

• Count III: Infringement of the ‘656 Patent

Donaldson asks the court for injunctive relief; compensatory damages; an award of Action Filtration’s total profits derived from infringement of the ‘177 Patent; and a declaration that the case is exceptional, to include an award to Donaldson of its attorneys’ fees, expenses, and costs associated with this patent lawsuit pursuant to such a declaration.

June 5, 2015

Indiana Trademark and Patent Litigation: Simpson Sues Two Indiana Individuals Alleging Patent Infringement and Counterfeiting

By Overhauser Law Offices, LLC

Hammond, Indiana – Trademark and patent attorneys for Simpson Performance Products, Inc. of Mooresville, North Carolina (“Simpson”) and SFI Foundation, Inc. of Poway, California (“SFI”) commenced trademark litigation in the Western District of North Carolina alleging that Robert Wagoner of North Judson, Indiana and Derek Randall Cathcart of Valparaiso, Indiana infringed the SIMPSON® family of trademarks, some of which have been registered by the U.S. Trademark Office. The case was transferred to the Northern District of Indiana. Among the trademarks at issue are U.S. Trademark Registration Nos. 4,117,821; 1,243,427; 3,026,333; 3,026,334; and 3,050,920. Also at issue are U.S. Patent Nos. 6,931,669 and 8,272,074.

Plaintiff Simpson is a manufacturer of automotive and motorsports specialty/performance products, including head and neck restraints for competitive racing. The Simpson brand of automotive and motorsports products has existed 1959. Plaintiff SFI was established to develop and administer minimum performance standards for the automotive aftermarket and motorsports industries, including standards for specialty/performance racing equipment.

Simpson offers for sale the SIMPSON® Hybrid PRO Rage™ head and neck restraint. Simpson indicates that this product is one of the few such devices to be certified under a special classification, SFI SPEC 38.1, for use in NASCAR competitions.

Defendants Wagoner and Carthcart have been accused of engaging in the business of providing specialty/performance racing equipment, including head and neck restraints that are counterfeit versions of Simpson products. Plaintiffs contend that Wagoner is offering counterfeit head and neck restraints through ebay.com. Plaintiffs allege that Cathcart offers counterfeit head and neck restraints via the website racingjunk.com.

These restraints, Plaintiffs contend, bear trademarks owned by Simpson, including the SIMPSON® federally registered trademark as well as the HUTCHENS Hybrid PRO™ and Hybrid PRO™ common law trademarks.

The accused products also allegedly bear a label that falsely states, “This product designed & manufactured by Safety Solutions, Inc. PATENT NO.: 6931669; other patents pending.” According to Plaintiffs, the alleged counterfeiting activities of Defendants also constitute patent infringement.

In this lawsuit, filed by patent and trademark lawyers for Plaintiffs, the following causes of action are listed:

• Trademark Infringement
• Unfair Competition under 15 U.S.C. § 1125(a); False Designation of Origin; False or Misleading Advertising
• Unfair and Deceptive Trade Practices under N.C. [North Carolina] Gen. Stat. § 75-1.1
• Patent Infringment [sic]

• Common Law Fraud

Plaintiffs ask for a finding in their favor on each of the counts alleged, including a finding that the conduct was knowing and willful, and entry against each Defendant jointly and severally. Plaintiffs seek costs, attorneys’ fees and damages, including enhanced damages, as well as injunctive relief.

This federal trademark complaint was initially filed in the Western District of North Carolina in February 2015. In May 2015, District Judge Richard Voorhees ordered it to be transferred to the Northern District of Indiana, finding that the North Carolina court lacked personal jurisdiction over Defendants.

June 4, 2015

151 Trademark Registrations Issued to Indiana Companies in May 2015

By Overhauser Law Offices, LLC

The U.S. Trademark Office issued the following 151 trademark registrations to persons and businesses in Indiana in May 2015 based on applications filed by Indiana trademark attorneys:

Registration No.	Word Mark	Click To View
4741943	NATIONAL SELECT 7 ON 7 CHAMPIONSHIPS	VIEW
4741942	NATIONAL SELECT 7 ON 7 CHAMPIONSHIPS	VIEW
4745478	POND MAPPING CALCULATOR	VIEW
4743607	CHRISTMAS COAL	VIEW
4743447	EZWRENCH	VIEW
4743127	INFORMED EMPLOYER BRIEFING	VIEW
4743064	LANARK WALLCOVERING	VIEW
4742912	PINWHEEL SCHOOL PORTRAITS	VIEW