Copyright Infringement

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

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.

July 7, 2011

Update: Righthaven Controversial Copyright Infringement Case Dismissed, Countersued for Legal Fees

By Overhauser Law Offices, LLC

Las Vegas, NV — In May, Indiana Intellectual Property Law News reported on Righthaven, LLC, a controversial company that claims to enforce copyrights online. One of the cases Righthaven pursued has recently been in the news again and illustrates the risk of pursuing copyright lawsuits that are not well founded. Righthaven filed a copyright infringement against attorney Thomas DiBiase, a former federal prosecutor. Righthaven claimed DiBiase committed copyright infringement when he posted a news story from the Las Vegas Review-Journal on his blog No Body Murder Blog. In late June, U.S. District Court Judge Roger Hunt of the District of Nevada dismissed the case for lack of standing. It seems that Righthaven did not fully own the copyrighted work and therefore had no standing to sue.

In early July, Mr. DiBiase countersued for $119,000 in legal fees, as reported by Vegasinc.com. Other defendants who have succeeded in getting Righthaven lawsuits dismissed have already been awarded attorneys fees totally over $35,000. As Vegasinc.com reports, many of the early Righthaven lawsuits were settled, but the defendants who have fought the suits have largely won on either standing or under the fair use doctrine.

Practice Tip: The case illustrates the very real risk that Righthaven faced in filing its copyright infringement cases – that it would be forced to pay the attorney fees of those who successfully defended their cases. It also underscores the importance of having an experienced intellectual property attorney who will take an aggressive defense

June 30, 2011

Update to Hard Drive Productions BitTorrent Copyright Infringement Case: John Doe Letters Ask Court Not to Allow Discovery

By Overhauser Law Offices, LLC

Indianapolis, IN – Several anonymous letters have been sent to the Southern District of Indiana regarding the Hard Drive Productions Copyright infringement case, all opposing any discovery attempts in the case that might reveal the identities of persons alleged to have illegally downloaded pornographic videos. Intellectual Property Law News has reported recently on three copyright infringement lawsuits filed in the Southern District of Indiana involving file sharing of adult entertainment videos via BitTorrent: the Hard Drive Productions case, the Boy Racer case and the First Time Videos case.

In an unusual procedural move, three anonymous letters, signed “John Doe,” were sent to the Court to protest the lawsuit and pre-emptively attack potential discovery efforts by the plaintiff that might reveal the identities of the “John Does,” who are accused of illegally sharing adult videos using BitTorrent. The first letter calls the case “wrongful harassment of internet subscribers” and states “Mr. Steele and lawyers attempting to the same scheme of intimidation will eventually be in contact with me to demand several thousand dollars not to sue ME for downloading this pornography file if Your court permits subpoena[.]” It points out the ease at which I.P. addresses could be forged and that wireless internet service can be used by a person other than the owner of the I.P. address, a concern that has been reported in Time Magazine.

A second letter points out to the court that in another similar case, discovery requests were denied by the Central District Court of Illinois and the Northern District of California. One court order attached to the letter says “The infringer might be the subscriber, someone in the subscriber’s household, a visitor with her laptop, a neighbor, or someone parked on the street at any given moment.”

Hard Drive filed a response to one of the letters, stating: “The Court is fully capable of protecting each defendant’s due process rights and ascertaining the quality of evidence presented at this proceeding. The anonymous letter expresses fear to the contrary, but these fears are not a good justification for curtailing discovery of the identities of those who have conspired to pirate copyrighted material.”

Practice Tips: We note the letters were sent from anonymous “John Does.” Had the writers identified themselves, they would have opened themselves to service of process and risked giving up several defenses including personal jurisdiction, which is an issue raised by one letter.

June 22, 2011

Update to Harvest Scents v. KMI Jury Trial: Settlement Reached Before Case Sent to Jury

By Overhauser Law Offices, LLC

Indianapolis, IN – In May, Indiana Intellectual Property Law News blogged about the jury trial in the copyright infringement case Harvest Scents v. KMI. The jury trial began on May 2, 2011 in the Southern District of Indiana and was presided over by Senior Judge Larry J. McKinney. According to PACER, on May 9^that the conclusion of the presentation of evidence on day six of the jury trial, the Court heard several additional motions. The plaintiff moved for a judgment as a matter of law, which Judge McKinney denied. At that point, rather than waiting for a jury verdict, the parties reached a settlement, and the jury was dismissed.

According to PACER, on June 22, 2011, the court approved a joint stipulation of the parties regarding settlement and dismissed the case with prejudice. The terms of the settlement appear to be confidential.