Copyright Infringement

October 3, 2011

Southern District of Indiana Issues Discovery Order in Copyright Infringement Suit Over Our Lady of America Works

Indianapolis, IN – Magistrate Judge Debra McVicker Lynch of the Southern District of Indiana has issued a decision in a discovery dispute in a copyright infringement lawsuit. Intellectual property attorneys for Kevin B. McCarthy of Indianapolis, Indiana, Albert H. Langsenkamp, Carmel, Indiana and BVM Foundation, Inc. of Batesville, Indiana had filed a lawsuit in the Southern District of Indiana making several claims against that Patricia Ann Fuller, also known as Sister Joseph Therese of Fostoria, Ohio and John Doe of Ohio. Ms. Fuller apparently has counterclaimed claiming trademark and copyright ownership of the copyrighted work OUR LADY OF AMERICA. Ms. Fuller apparently operates the website www.ourladyofamerica.com.

The Our Lady of America copyrighted works are drawings and statutes based upon a nun’s visions of the Virgin Mary that began in the 1950s. According to the complaint filed in the case, Ms. Fuller claims she owns the copyright to one of the Our Lady of America statute and the parties dispute the ownership. The plaintiffs disagree and believe Ms. Fuller is making numerous misrepresentations regarding the works and is fraudulently representing herself as the owner of the works and marks. In the original complaint, the plaintiffs made claims of defamation, intentional infliction of emotional distress, fraud, deception, theft, criminal conversion, and civil conspiracy. It appears that Ms. Fuller is claiming copyright and/or trademark rights to the images and statutes. The court’s discovery orders require her to disclose information such as “how the representation of the Virgin Mary was being used as a trademark in 1960.

Practice Tip: It appears that Ms. Fuller provided vague answers to numerous interrogatories sent to her. Federal Rule of Civil Procedure 26(e)(1)(A) requires parties to supplement their answers to discovery questions when the party learns that an answer provided is incomplete or incorrect.
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September 29, 2011

Coach, Inc. Files Federal Trademark and Copyright Infringement Lawsuits Against Indiana Company J & JS Petroleum, Inc. for Infringements of Handbags

By Overhauser Law Offices, LLC

Indianapolis, IN – Trademark lawyers for Coach, Inc. of New York, New York have filed a trademark infringement suit in the Southern District of Indiana alleging J & JS Petroleum, Inc. of Indianapolis, Indiana infringed the forty-eight trademarks registered with the US Trademark Office. In this suit, Coach also alleges J & JS infringed the copyrighted works of Registration No. VAu000704542, LEGACY STRIPE, Registration No. VA0001228917, SIGNATURE C DESIGNS, Registration No. VAu1-046658, COACH 70^th ANNIVERSARY SNAPHEAD PRINT AND Registration No. VA1-010-918, COACH CLOVER DESIGN which have been registered by the US Copyright Office.

The complaint against J & JS alleges that the company operates a gas station and convenience store at 9025 Brookville Road in Indianapolis where a Coach representative purchased a purse labeled “Coach” on August 21, 2011. The knock-off purse was purchased for $59.99, rather than the normal retail price of the Coach purse of approximately $298. Coach had not authorized the use of the “Coach” mark on the purse sold. The Coach representative viewed additional product labeled “Coach” for sale in the store. The complaint makes claims of trademark counterfeiting, trademark infringement, trade dress infringement, false designation of origin and false advertising, trademark dilution, copyright infringement, unfair competition, criminal forgery, and criminal counterfeiting.

Practice Tip: Coach has recently been very aggressively defending its intellectual property rights in Indiana. Indiana Intellectual Property Law News has previously reported on several cases here:

Coach Files Two Trademark and Copyright Infringement Lawsuits in Northern District Over Knock-Off Coach Items

Coach, Inc. Sues Chaos of Muncie and Angelina’s Unique Boutique for Trademark and Trade Dress Infringement For Sale of Coach Knock-Off Products

Coach, Inc. and Coach Services, Inc. Sue Diggz Clothing LLC and Lori Harth for trademark and trade dress infringement
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September 23, 2011

Rare Criminal Conviction for Copyright Infringement for Unauthorized Online File Sharing of Film Black Swan

By Overhauser Law Offices, LLC

Los Angeles, CA – Wesley DeSoto of Los Angeles, California has pleaded guilty to a charge of criminal copyright infringement in a rare federal criminal prosecution of copyright infringement, which was brought in the Central District of California. Mr. DeSoto allegedly uploaded copies of the copyrighted films Black Swan, The Fighter, The King’s Speech, 127 Hours and Rabbit Hole on to the website The Pirate Bay. Mr. DeSoto allegedly used the bittorrent protocol to share these films in January 2011 using the username “mf34inc.” According to Wired.com, the FBI raided Mr. DeSoto’s apartment earlier this year after being alerted of the alleged infringement by the Motion Picture Association of America. Mr. DeSoto is an actor and member of the Screen Actor’s Guild. He had obtained advanced copies of the films through his SAG membership. Investigators were able to identify Mr. DeSoto as “mf34inc” by tracing username’s Internet Protocol address to Mr. DeSoto.

On September 12, 2011, Mr. DeSoto and copyright infringement attorneys at U.S. Attorney’s Office filed a plea agreement with the court. Mr. DeSoto agreed to plead guilty and the U.S. Attorney’s Office is recommending a sentence of three years of probation. The judge in the case, however, will not be bound by the sentencing recommendation. The offense carries a maximum sentence of three years of incarceration.

Practice Tip: Mr. DeSoto was charged under 17 U.S.C. § 506(1)(C), which criminalizing the distribution of a copyrighted work that is being prepared for commercial distribution by making it available on a computer network to the public. This provision was passed in 2005. Mr. DeSoto’s case is a rare prosecution under this statute.
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September 22, 2011

80/20, Inc. Sues Parco Inc. and Phillip Andrew Roser for Trademark and Copyright Infringement of Aluminum Products Online and in Product Catalogs

By Overhauser Law Offices, LLC

Fort Wayne, IN – Trademark lawyers for 80/20, Inc. of Columbia City, Indiana filed a trademark infringement suit in the Northern District of Indianaalleging Parco Inc of Huntertown, Indiana and Phillip Andrew Roser of Fort Wayne, Indiana infringed trademark registration no. 2,699,302 for the mark 80/20 and no. 3,362,571 for the mark AUTO QUOTER registered by the US Trademark Office as well as three unregistered trademarks. 80/20 also alleges Parco has infringed five registered copyrights owned by 80/20.

80/20 is a leading seller of aluminum extrusion products and accessories. The complaint alleges that Parco is a former distributor of 80/20 products, and Mr. Roser is the president and majority shareholder of Parco. 80/20 alleges that Parco and Mr. Roser “created a scheme whereby they would use Parco’s status as a distributor to form and launch a direct competitor to 80/20.” The complaint states that Parco has been using 80/20 trademarks and copyrighted material on its online advertising and in catalogs. 80/20 alleges that Parco registered an internet domain name “parco8020.com” which used the 80/20 mark without authorization. 80/20 sent a cease and desist letter to Parco on June 14, 2011, and Parco then removed allegedly infringing material from its website. 80/20 alleges that Parco subsequently used photos of 80/20 products to create Parco promotional material, including a YouTube video. 80/20’s copyright and trademark attorneys have made claims of copyright infringement, federal trademark infringement, Lanham Act violation of “passing off,” common law trademark infringement, common law unfair competition, “anti-cyber squatting,” Indiana law unfair competition and deceptive trade practices. 80/20 is seeking to hold Mr. Roser individually liable, through theories of personal liability arising under copyright and trademark law and vicarious liability. 80/20 seeks an injunction, accounting of profits, impoundment and destruction of infringing catalogs, actual damages, attorney fees and costs.

Practice Tip: 80/20 has designated one of its claims “passing off” and cites 15 U.S.C. 1125(a). The federal law calls this type of claim a false designation of origin and false description. The law prohibits any use of marks or words that create a likelihood of confusion as to the origin, sponsorship or approval of a product.
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August 29, 2011

AFC Enterprises, Inc., Popeye’s Chicken Sue Christopher Payne, LP&P Foods, and 10 John Does for Trademark Infringement of Popeye’s Mark in Indianapolis Restaurant

By Overhauser Law Offices, LLC

Indianapolis, IN – Trademark lawyers for AFC Enterprises, Inc. of Georgia, doing business as Popeye’s Chicken, filed a trademark infringement suit alleging Christopher Payne, LP&P Foods, and ten John Does of fIndiana infringed trademark registration no. 1030944 for the mark POPEYES, 1107575 POPEYE SIGN DESIGN WITH COLOR and numerous other trademarks registered with the US Trademark Office. Popeye’s has also registered copyrights for some of the items at issue here.

This dispute arises out of the operation of a Popeye’s restaurant at 6014 East 46^th Street in Indianapolis utilizing the Popeye’s trademarks. According to the complaint, AFC had a franchise agreement with another individual, not a party to this suit, to operate a Popeye’s franchise at this Indianapolis location, however, that franchise agreement was terminated in August 2010. Following the termination of the franchise agreement, Mr. Payne, who operated a Popeye’s franchise in Fort Wayne with LP&P Foods, approached AFC and sought to become the franchisee at this location under a new franchise agreement. AFC declined to enter a franchise agreement with Mr. Payne. On July 31, 2011, AFC learned that Mr. Payne was operating a fried chicken restaurant at the East 46^th Street location and was utilizing the Popeye’s marked items that were left behind when the franchise closed, including signs and menu boards. According to the complaint, the restaurant ceased operation on August 6, 2011 and tarps covered the signs.

Practice Tip: In Indiana, criminal conversion is defined as knowingly exerting unauthorized control over property of another person. Indiana law allows the person harmed by criminal conversion to sue for treble damages, equal to three times actual damages, as well as attorney fees and cost. If true, the allegations contained in this complaint appear to make a case for conversion, and the defendants are likely to be liable for a significant monetary sum.
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August 24, 2011

Breach of Contract Claim Over Intellectual Property Rights to Software For County Governments Survives Summary Judgment in Nikish Software Corp. v. Manatron Inc.

By Overhauser Law Offices, LLC

Indianapolis, IN – Judge Tanya Walton Pratt of the Southern District of Indiana denied summary judgment on what would have disposed of a dispute over the intellectual property rights to tax software used by many Indiana county governments. Nikish Software Corporation of Commack, New York had sued Manatron Incorporated of Portage, Michigan, alleging breach of contract regarding intellectual property rights to the software.

This dispute arose over rights to software and related services that have been provided to over 80 Indiana county governments by Manatron and similar software and services provided by Nikish to Indiana counties. Nikish and Manatron originally worked together to develop software systems for Dauphin County, Pennsylvania and Baltimore County, Maryland. At the completion of these projects, the two companies parted ways and signed a settlement agreement whereby Nikish agreed not to disclose or reproduce any of Manatron’s confidential or proprietary information, specifically Manatron’s tax software. Thereafter, Nikish began developing its own tax software to compete with Nikish. In 2006, Nikish marketed its software to Vigo County, Indiana. When Manatron discovered Nikish’s marketing efforts in Indiana, it sent a letter to 56 Indiana counties and the Indiana Department of Local Government Finance stating that Nikish’s software was “nothing more than a misappropriated derivative copy” of Manatron’s software. In 2007, Nikish brought the present lawsuit. Manatron counterclaimed alleging copyright infringement of its software, but the court denied the copyright infringement claim in a prior ruling.

The court’s most recent ruling denied summary judgment in favor of Manatron on the breach of contract claim, allowing that claim to go forward. Judge Pratt granted summary judgment denying Nikish’s tortuous interference with contract, tortuous interference of business relationships, and defamation claims. Following the summary judgment, the breach of contract claim would have gone to a jury for ultimate disposition. However, the parties reached a settlement. The court then dismissed the case on July 15, 2011, pursuant the stipulation and settlement of the parties.
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August 19, 2011

The Guardian Reports on BitTorrent Litigation Citing TorrentFreak Calculation That 200,000 John Does Have Been Sued

By Overhauser Law Offices, LLC

London, U.K. – The Guardian newspaper of London recently reported on the rash of BitTorrent lawsuits that have been filed in the United States. The Guardian reports on the claims of a blogger named TorrentFreak who has been vigorously tracking the BitTorrent lawsuits. Notably, TorrentFreak tracks that over 200,000 “John Does” have been named as defendants in BitTorrent-related copyright infringement lawsuits. According to these reports, a majority of the suits involve online music sharing.

TorrentFreak describes the BitTorrent-related copyright infringement lawsuits as “pay-up-or-else schemes” and describes the economics behind the suits. She notes “Copyright holders have embraced this new revenue stream by the dozen and new lawsuits are being filed every week.” The reports note that after the identity of the “John Doe” is disclosed through discovery on Internet Service Providers, the copyright holders contact the person and offer to settle for $2,500. Because most John Does prefer to pay the $2,500 rather than face legal costs and possible $150,000 fine, none of the cases have gone to trial.

Practice Tip: Indiana Intellectual Property Law News has been closely following the Bittorrent litigation recently Indiana, all of which so far involve adult entertainment file sharing, rather than music. Our reports are available here:

July 28, 2011

Another Update to Hard Drive v. 21 Indiana John Does: Attorney Files Motion to Dismiss, Court May Strike Anonymous Letters

By Overhauser Law Offices, LLC

Indianapolis, IN – There have been further updates to the Hard Drive Productions case in the Southern District of Indianathat Intellectual Property Law News has been closely following. The Hard Drive case is one of three similar copyright infringement lawsuits in the Southern District of Indiana all involving file sharing of adult entertainment videos via BitTorrent. The other two are the Boy Racer case and the First Time Videos case.

In one development, an attorney has filed a motion to dismiss and motion to quash subpoena on behalf of one of the John Does, who remains unnamed but has his or her I.P. address listed on the motion. The motion to dismiss argues that the Court does not have personal jurisdiction since the John Doe does not live in or have sufficient contacts with Indiana and that the defendants have been misjoined since none of the controversies arise out of the same facts or occurrences. The motion also argues that a subpoena that has been served on internet service provider Comcast requesting the name and identifying information for this John Doe is unduly burdensome.

In another development, the Court has ordered the authors of the anonymous letters, subject of an Intellectual Property Law News blog last month, to appear before the court and show cause why their letters should not be stricken from the record. If the authors do not appear by September 9, the Court will strike their letters from the case docket.

July 15, 2011

Broadcast Music, Inc. et al Sues Bertee’s Inc. et al for Copyright Infringement of Musical Composition

By Overhauser Law Offices, LLC

Indianapolis, IN – Copyright lawyers for Broadcast Music Inc. (“BMI”) of New York, New York and fifteen music publishing companies filed a copyright infringement suit in the Southern District of Indianaalleging Bertee’s Inc. d/b/a Bertee’s Sports Café and Kelly D. Kendrick of Fortville, Indiana infringed eight copyrighted songs that have been registered by the US Copyright Office.

The complaint states that BMI is the exclusive license holder of the eight copyrighted songs at issue and that the other plaintiffs are the owners of the copyrights. The complaint alleges that the eight songs were performed at the Bertee’s Sports Café in Fortville on December 18, 2010 without authorization. The eight songs at issues are: Givin’ It Up For Your Love by Jerry Williams, Good Times by Nile Rogers, Jessie’s Girl by Rick Springfield, On the Dark Side by John Caffery, Kryptonite by Bradley Kirk Arnold, Tennessee by Arrested Development, Wherever You Go by Alex Brand and Name by John Rzeznik. Copyright attorneys are seeking an injunction, damages, costs and attorneys fees.

Practice Tip: In this case, the plaintiffs have sued Kelly Kendrick, the owner of Bertee’s Sports Cafe personally. Copyright laws allow an officer of a corporation to be held liable for the corporation’s copyright infringement if the officer contributes to the infringement by inducing or encouraging the infringement. An officer can also be liable for copyright infringement if the officer supervises the infringing conduct and has a direct financial benefit from the infringement.

July 14, 2011

BMI Sues Diamond Investments Inc. D/B/A The Juke Box Live for Copyright Infringement of Eight Songs

By Overhauser Law Offices, LLC

Indianapolis, IN – Copyright lawyers for Broadcast Music, Inc. (“BMI”) of New York, New York and fourteen music publishing companies filed a copyright infringement suit in the Southern District of Indianaalleging Diamond Investments Inc. d/b/a The Juke Box Live , and Salvatore T. Mazza of Franklin, Indiana infringed eight copyrighted songs that have been registered by the US Copyright Office.

The complaint states that BMI is the exclusive license holder of the eight copyrighted songs at issue and that the other plaintiffs are the owners of the copyrights. The complaint alleges that the eight songs were performed at the Juke Box Live in Franklin on March 19 and 20, 2011 without authorization. The eight songs at issues are: Every Rose Has Its Thorn by Brett Michaels, Family Tradition by Hank Williams, Jr., Keep Your Hands to Your Self by Dan Baird, Lady Down on Love by Randy Owens, Baby Got Back by Anthony L. Ray, Courtesy of The Red, White and Blue by Toby Keith Covel, Play Something Country by Terry McBride, and Gunpowder and Lead by Miranda Lambert. Copyright attorneys are seeking an injunction, damages, costs and attorneys fees.

Practice Tip: In this case, BMI is the exclusive licensor to rights to play the songs listed. Unless a proper license is received, a bar or other establishment plays or allows a band to play music that has been registered with the US Copyright Office may commit copyright infringement. These types of cases are very friendly to the intellectual property owner, and a plaintiff is entitled to attorney’s fees from the defendant.