Copyright Infringement

April 13, 2016

Indiana Copyright Litigation: Wine & Canvas Accused of Copyright Infringement

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 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.

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.

March 25, 2016

Fox News Asserts Broadcast TV Database Infringes Copyright; EFF and Others Claim Fair Use

By Overhauser Law Offices, LLC

San Francisco, California – A media monitoring service that creates a text-searchable database of television and radio content is defending its fair use rights before a federal appeals court. The Electronic Frontier Foundation (“EFF”), New York University’s Technology Law and Policy Clinic, and Public Knowledge urged the court Wednesday to protect this innovative technology–and others that have yet to be developed–from being shut down by copyright infringement claims.

“Search engines and book digitization have proven the enormous social benefits of indexing and archiving the media,” said EFF Staff Attorney Kit Walsh. “This case is the latest in a long line of copyright-based challenges to these important tools, and it should fail just as the others have.”

In this case, Fox News sued a company called TVEyes, claiming the company’s broadcast content database–used by journalists, scholars, and political campaigns to study and monitor the national media–infringed its copyright in its programming. The district court acknowledged that the service is generally a fair use of copyrighted material, but then, in a second ruling, held that some of the features of the TVEyes database could facilitate infringement, including the ability to share links or search by date and time. In a departure from established legal precedent, the court ruled that this was enough to defeat TVEyes’ fair use defense.

March 23, 2016

Copyright Litigation: Forensic Exam, Testimony Fail to Demonstrate Infringing Material on Defendant’s Computer

By Overhauser Law Offices, LLC

Chicago, Illinois – Magistrate Judge Geraldine Soat Brown of the Northern District of Illinois granted the motion for summary judgment of John Doe, the anonymous Defendant sued by pornographer Malibu Media LLC (“Malibu”) on allegations of copyright infringement.

Plaintiff alleged that, between May 2013 and July 2013, Defendant infringed Malibu’s copyright in 24 movies by downloading them from the internet using file-sharing software known as BitTorrent. Copyright attorneys for Malibu filed a copyright infringement lawsuit against Defendant, stating that Defendant had been identified by the internet protocol (“IP”) address that had been used to infringe. Defendant was permitted to litigate anonymously as “John Doe” (“Doe”).

Malibu submitted various pieces of evidence to support its contentions that Doe had infringed the copyrights on Malibu’s works, including a declaration by the founder of Malibu and declarations of various experts, such as forensic investigators. Doe denied Plaintiff’s claims and contested its method of proof.

The court evaluated Malibu’s evidence, noting that some of it was simply pro forma and included no relevant and particularized statements about the copyright infringement that Malibu alleged had been committed by Doe. The court stated that at least one pleading was described by Malibu as containing attached materials that had not, in fact, been attached. Other material was described by Malibu as having been sent to the court, while the court indicated that it had never been received.

The court also reproached Malibu’s attorneys for misrepresenting to the court the court’s earlier statements regarding the relevant evidentiary requirements to prove Doe’s liability. It further noted that Malibu had failed to adhere to required procedures, such as the serving of several disclosures under Rule 26(a)(2). Because those disclosures had not been made, and because the court held that the failure to disclose was evidence of at least willfulness, if not bad faith, two of Malibu’s declarations were stricken in their entirety as were portions of a third declaration. All of Malibu’s statements of fact that relied upon the stricken material were also excluded from evidence.

The court subsequently concluded that “Malibu has no evidence that any of its works were ever on Doe’s computer or storage device,” stating that Malibu’s contention that Doe had used visualization software to infringe Malibu’s works was merely speculation:

Malibu admits that there is no evidence of visualization software on Doe’s computer, and not even any evidence of the deletion of visualization software. Malibu says that is “beyond fishy,” and speculates that Doe must have deleted visualization software from his computer in some way that hides the fact that it was deleted, and then extends the speculation to suggest that Doe must have done that deletion to hide his infringement of Malibu’s works. That is not evidence that Doe copied or distributed Malibu’s works.

The court granted Defendant’s motion for summary judgment. Plaintiff’s motion for summary judgment, which asked the court to conclude that Doe had infringed its copyrighted works, was denied.

Practice Tip #1: Malibu has filed a multitude of virtually identical lawsuits around the country. According to a recent case in New York, “Malibu is a prolific litigant: between January and May 2014, for example, Malibu was responsible for 38% of copyright lawsuits filed in the United States.” Malibu Media, LLC v. Doe, No 15 Civ. 4369 (AKH), 2015 WL 4092417, at *3 (S.D.N.Y. July 6, 2015).

Practice Tip #2: We have blogged about Malibu Media’s litigation exploits before. Some recent posts include:

• Magistrate Rejects Malibu Media’s Request for Fees and Sanctions
• Malibu Media Sues Nine Additional “John Does” Asserting Copyright Infringement
• Fourteen New Lawsuits Asserting Copyright Infringement Filed by Malibu Media
• Malibu Media Alleges Infringement of Thirty Copyrighted Works

• Another John Doe Sued by Malibu Media on Allegations of Copyright Infringement

March 21, 2016

Indiana Trademark and Copyright Litigation: Sweetwater Contends Hello Music Copied its Website, Infringed its Intellectual Property

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – Indiana intellectual property lawyers for Plaintiff Sweetwater Sound, Inc. (“Sweetwater”) of Fort Wayne, Indiana filed an intellectual property lawsuit in the Northern District of Indiana.

Plaintiff alleges that Defendant Hello Music, LLC of Austin, Texas infringed its trademarks, which have registered by the U.S. Patent and Trademark Office as Trademark Nos. 3,652,255 and 3,652,249. In addition, Sweetwater Sound contends that Hello Music infringed its copyright, issued by the U.S. Copyright Office as TX 8-064-067, which protects the contents of its website. Other counts of alleged wrongdoing, including claims under Indiana law, have been asserted.

Hello Music is accused of duplicating copyrighted content from Sweetwater’s website and using that protected content on its own website. Sweetwater contends that part of the content purportedly copied includes the Sweetwater trademark. Sweetwater also asserts that these acts by Hello Music constitute a willful and deliberate attempt to trade on Sweetwater’s goodwill.

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

• Count I: Copyright Infringement
• Count II: Trademark Infringement (False Designation of Origin)
• Count III: Trademark Dilution

• Count IV: Unfair Competition

Sweetwater asks the court to grant equitable relief, including the destruction of infringing materials. It also seeks actual and treble damages, disgorgement of all profits that resulted from infringing acts, litigation costs and attorneys’ fees.

February 16, 2016

Indiana Copyright Litigation: Design Basics Files Additional Indiana Lawsuit

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana intellectual property attorneys for Design Basics LLC, Plan Pros, Inc. and Carmichael & Dame Designs, Inc., all of Omaha, Nebraska, sued in the Southern District of Indiana alleging copyright infringement. This lawsuit follows the recent filing by Design Basics of six similar copyright lawsuits in the Northern District of Indiana.

Plaintiffs Design Basics, Plan Pros and Carmichael & Dame are engaged in the business of creating, marketing, publishing and licensing the use of architectural works and technical drawings of those works.

The Defendant in this lawsuit is Michael Shrader. Plaintiffs contend that Shrader does business as Palladian Home Design, Palladian Home Designs, Palladian Blueprints, Palladian Drafting & Design Services, Palladian Architectural Drafting & Design Services and Palladian Design/Build. Shrader is alleged to have infringed the copyrights of multiple home designs that have been registered with the U.S. Copyright Office and to which Plaintiffs claim ownership.

Defendant’s accused activities include, but may not be limited to, reproductions of one or more of the following:

• Design Basics’ Plan No. 1380 – Paterson (U.S. Copyright Registration Nos. 314-024 & 694-094)
• Design Basics’ Plan No. 1752 – Lancaster (U.S. Copyright Registration Nos. 371-204, 694-094 & 756-041)
• Design Basics’ Plan No. 2332 – Corinth (U.S. Copyright Registration Nos. 485-066, 694-088 & 710-606)
• Carmichael & Dame’s Plan No. 9169 – Kempton Court (U.S. Copyright Registration Nos. 867-084 & 867-087) and

• Plan Pros’ Plan No. 29303 – Bloom (U.S. Copyright Registration Nos. 1-397-448 & 1-412-560) (the “Copyrighted Works”).

Plaintiffs seek equitable relief along with damages, costs and attorney fees.

February 11, 2016

Indiana Copyright and Trademark Litigation: Magazine Publisher Sues Commemorative Plaque Maker Alleging Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana copyright and trademark attorneys for Plaintiff The Rough Notes Company, Inc. (“Rough Notes”) of Carmel, Indiana commenced a copyright infringement lawsuit in the Southern District of Indiana.

The Defendant, That’s Great News, LLC (“Great News”) of Cheshire, Connecticut, is accused of infringing U.S. Trademark Registration No. 2,585,340, which has been filed with the U.S. Patent and Trademark Office, as well as unfair competition, false designation of origin, and dilution under the Lanham Act. Allegations of copyright infringement of material protected by Copyright Registrations Registration Nos. TX 7-988-447 and TX 7-988-464, as well as other related claims, have also been made.

Plaintiff Rough Notes is a publisher of print and online magazines. It indicates that it has used its “Rough Notes” trademark since 1878 and that the trademark was registered in 2002. Rough Notes contends that Defendant Great News has violated it copyright, trademark and other intellectual property rights by producing samples of commemorative plaques that feature protected content owned by Rough Notes and distributing samples via e-mail to solicit the purchase of a plaque.

In this federal complaint, filed with the court by Indiana copyright and trademark lawyers for Rough Notes, the following causes of action are alleged:

• Copyright Infringement
• Federal Unfair Competition & False Designation of Origin
• Federal Trademark Infringement
• Common Law Trademark Infringement
• Federal Trademark Dilution
• Common Law Unfair Competition

• Unjust Enrichment

Rough Notes seeks equitable relief; statutory damages, including up to $150,000 for willful infringement; and reimbursement of costs and attorneys’ fees.

Practice Tip: Plaintiff may have difficulty overcoming the defense of nominative fair use of a trademark in this lawsuit. That doctrine provides that, as a matter of law, nominative use of a mark — where the only word reasonably available to describe a particular thing is pressed into service — lies outside the strictures of trademark law. Defendant may argue that its use of “Rough Notes” on its commemorative plaques was permissible as those are the only words reasonably available to adequately describe a plaque displaying an article featured in a “Rough Notes” publication.
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