Articles Posted in Copyright Infringement

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Indianapolis – Last week, copyright attorneys for Joe Hand Promotions, a Pennsylvania corporation, filed a copyright infringement lawsuit against the owners of an Indiana bar who alleged displayed an Ultimate Fight Championship fight without authorization.

Ursula and Guenter Grote operate the Grote Trading Post and Gus’s Sports Bar in Lawrenceburg, Indiana. Joe Hand Promotions owns exclusive rights to distribute the Ultimate Fight Championship television broadcast on March 3, 2009, UFC broadcast #96. The complaint, filed in the Southern District of Indiana, alleges that the Grotes displayed the fight in their bar without authorization from Joe Hand Promotions. According to the complaint, Joe Hand’s copyright attorneys are unsure whether the Grote’s used satellite or cable television network to show the fight. The copyright attorneys therefore allege that the Grotes violated either 47 U.S.C. § 605(a) or 47 U.S.C. § 553. Joe Hand is seeking damages of up to $110,000, costs and attorneys’ fees.

Practice Tip: Most Satellite signal providers employ encryption to limit reception to certain groups, such as paying subscribers. If an individual has a “residential” agreement with a satellite provider, this does not give them the right to display the performance in a public setting like a bar or restaurant. This is the third copyright infringement lawsuit making similar claims that Joe Hand Promotions has filed in the Southern District of Indiana since 2010.

The case has been assigned to Chief Judge Richard L. Young and Magistrate William G. Hussmann. The docket number is 4:11-CV-016-RLY-WGH.
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Indianapolis, IN – Copyright lawyers for Dion Designs of Quebec, Canada have filed an infringement suit against Allwin Powersports, Corporation, Inc., Arthur Liao, MHR Helmet Co., Ltd., Foshan Shunde Fengxing Helmets, Ltd., and Jiangmen Pengcheng Helmets, Ltd. Plaintiff Dion claims he is a famous designer of helmets, who signed an agreement in 2005 with the Defendants to receive $0.50 for each helmet sold using Dion’s deigns. Defendants paid Dion for some helmets, but terminated the agreement around 2010. However, Dion claims that Defendants used some of Dion’s latest designs to make several new helmets. While some of these designs have been marketed by the Defendants in Europe, Dion fears that they will be offered in the US at the Dealer Expo 2011 on February 18 – 20, 2011 in Indianapolis. Dion claims that he filed copyright applications and design patent applications on his designs, although none of those applications has resulted in a registration or issued patent.

The complaint asserts a veritable “kitchen sink” of claims, such as a Lanham Act claim based on a misrepresentation that Defendants have “authority to import and sell such products, without disclosing the absence of a valid license or agreement with the designer.” Claims are also alleged for copyright infringement, trade secret misappropriation, breach of contract, conversion, unfair competition, and for declaratory relief. Dion’s complaint is also accompanied by a Motion for Preliminary Injunction seeking to bar the “displaying or promoting” of the allegedly infringing helmets at the Dealer Expo on February 18-20, 2011, or on the Internet.

Practice Note: The Plaintiffs’ complaint appears to have several inconsistencies. The Lanham Act claim based on a “failure to disclose” is highly unusual; normally, a Lanham Act claim is predicated on an overt misrepresentation as to source. Although Dion states that the Defendants’ claim that the helmets were “designed in Europe” is false, even if this is the case, it is hard to see how the Plaintiff is harmed, especially since the complaint states that “Dion’s plans to make commercial use of those designs have been placed on hold.” The copyright infringement claim is suspect because, as discussed elsewhere on this site, the Plaintiffs did not obtain a copyright registration before filing a suit. Also, to support the trade secret misappropriation claim, the plaintiff claims that his designs “derive substantial commercial value from not being generally known.” However, even if the Plaintiffs’ designs were once “not generally known,” they certainly are now since the Plaintiff: (a) attached them to his complaint, (b) filed them with the US Copyright Office, and because (c) the designs are alleged to been sold in Europe for some time. Dion’s claim for “conversion” also appears to be preempted by the Copyright Act. Finally, it seems that Dion will have difficulty establishing the “irreparable harm” factor necessary to obtain preliminary injunctive relief, since his predominant complaint is that he has not received his $0.50 per royalty license fee.

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Chicago, IL – The Seventh Circuit Court of Appeals affirmed the dismissal of a copyright infringement suit. Lawyers for HyperQuest, Inc., of Buffalo Grove, Illinois, filed a suit against N’Site, Inc. and Unitrin Direct Insurance Company alleging copyright infringement of copyrighted software used to process insurance claims. The software, eDoc, had been registered by the US Copyright Office. Although the license agreement used the phrase “exclusive licenses,” the trial court concluded that the specific words in the license granted only a non-exclusive license. Thus, the trial court determined that HyperQuest did not have standing to bring the lawsuit and dismissed the case. The district court also ordered HyperQuest to pay N’Site and Unitrin’s attorney’s fees of $134,958.42 for defending the copyright infringement suit. The plaintiff appealed, but the Court of Appeals, decided that the Copyright Act limits who can sue for infringement of a copyright to “the legal or beneficial owner of an exclusive right under a copyright” and affirmed the district court’s dismissal. The Court of Appeals also affirmed the award of attorney’s fees to N’Site and Unitrin.

Practice Tips: When making a license agreement for the use copyrighted material, attorneys should carefully review whether the terms of the agreement reflect the parties’ intentions. Even if an agreement uses the phrase “exclusive license,” the terms of the agreement must reflect actually exclusivity for the licensee to bring a copyright infringement suit.

Plaintiffs should carefully consider whether to file a Copyright infringement suit. The Copyright Act is one of the few laws that allows a prevailing defendant to collect attorneys fees from the plaintiff if the suit is unsuccessful.

The Court’s Opinion is below.
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South Bend; IN – Copyright lawyers for Truth Publishing Company, Inc. of Elkhart, IN filed a copyright infringement suit alleging Kristopher C. Campbell d/b/a I.C.U. MUG SHOTS of Elkhart, IN infringed allegedly copyrighted news stories.

According to the complaint, Truth Publishing, is the publisher of the daily Elkhart Truth newspaper. The newspaper includes stories regarding criminal activities. The Defendant ICU Mug Shots (ICU stands for Indiana Criminals Uncovered) publishes mug shots of arrested persons accompanied by news stories about particular arrests. These publications sell for $1.50. It is alleged that the stories ICU Mugshots included with its publication stories about particular arrests that were quoted verbatim from The Elkhart Truth.

This case has been assigned to Judge Jon E. DeGuilio and Magistrate Judge Christopher A. Nuechterlein in the Northern District of Indiana, and assigned case no. 3:11-cv-00017-JD-CAN.

Practice Tip: The complaint does not allege that any of the allegedly infringed news stories have been registered with the Copyright Office. Instead, the complaint only alleges, for each story, that “Truth Publishing has timely applied for copyright registration of the [particular] story and paid the appropriate fee to the Copyright Office.” However, the Copyright Act. 17 U.S.C. § 411(a) states that ”no action for copyright infringement may be brought until the work that is the subject of such action has first been registered in the Copyright Office, or at least an attempt to register has been made and refused by the Copyright Office.” Given that the Plaintiff does not allege either registration or a refusal to register by the Copyright Office, the complaint may be subject to dismissal.

When a copyright owner’s work desires to file an infringement suit but does not have a registration, it is advisable to include a request for special handling and pay a special handling fee (currently $480) to expedite processing of the application. This can reduce the time to obtain a registration from several months to a few days.
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Lafayette, IN – Trademark lawyers for Coach, Inc. of New York, NY, and Coach Services, Inc. of Jacksonville, FL filed a trademark infringement suit alleging Diggz Clothing, LLC and Lori Harth of Lafayette, IN infringed various Coach trademark registrations which are registered with the US Trademark Office. Coach had sued Diggz in March 2010, then settled the suit for $6,500, and an agreement to stop selling “Accused Products.” However, the latest suit alleges that Diggz breached the settlement agreement, and re-asserts a variety of trademark, copyright, trade dress and unfair competition related claims.

Coach files many infringement suits, and a list of their earlier suits in Indiana in 2010 is at the end of this posting.
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Hammond, Indiana – Copyright lawyers for BMI (Broadcast Music, Inc.) of New York City and various musical copyright holders such as Universal and EMI Virgin Songs have filed a copyright infringement lawsuit against the Shenanigans pub in Portage, IN. The complaint alleges that the defendant and its chief officer caused, publicly displayed at least ten musical compositions protected by copyrights registered in the U.S. Copyright Office without obtaining a copyright license.

This case has been assigned to Judge Theresa Springmann and Magistrate Judge Andrew Rodovich in the Northern District of Indiana, and assigned case no. 2:10-cv-00458-TLS-APR.

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Hammond, Indiana – Copyright lawyers for Zuffa, LLC d/b/a The Ultimate Fighting Championship of Las Vegas, NV, have filed a lawsuit alleging that Carol Papka of Valparaiso, IN, Philip Reiner of Wheeler, IN, and Daniel Kettwig of Valparaiso, IN, individually and as officers, directors, shareholders, and/or principals of Boomer’s Pub and Grub of Portage, IN, improperly received the UFC #111 broadcast. The complaint claims that the broadcast interception is a violation of 47 U.S.C. §§ 553 and 605(a), federal statutes which prohibit the unauthorized reception of certain communications, as well as a violation of the Copyright Act.

This case has been assigned to Judge Rudy Lozano and Magistrate Judge Andrew Rodovich in the Northern District of Indiana, and assigned case no. 2:10-cv-00422-RL-APR.
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 New Albany, Indiana – Trademark lawyers for Batesville Services, Inc. of Batesville, IN, initiated litigation alleging Cremation Options, LLC of Denver, CO, through content on its Web site, infringed Trademark Registration No. 1,922,043 for the mark OPTIONS, Trademark Registration No. 2,052,105 for the mark OPTIONS & Design, and Trademark Registration No. 2,344,840 for the mark OPTIONS, all of which have been registered by the U.S. Trademark Office in connection with cremation goods and services. The plaintiff also alleges infringement of catalog, video, and image copyrights which have been registered with the U.S. Copyright Officeand that the defendants’ registration of thewww.cremationoptions.comdomain name is a violation of the Anticybersquatting Consumer Protection Act in light of the plaintiff’s priorwww.cremation-options.comdomain registration.
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Indianapolis, Indiana – Copyright counsel for Bedrock Builders Incorporated of Noblesville, IN, have filed a lawsuit alleging Town Square Homes LLC of Westfield, IN; Tony McLaughlin of Westfield, IN; and Tom Mayer and Erin Mayer of Fishers, IN, infringed technical drawings and architectural works which have been registered with the U.S. Copyright Office.

More particularly, residential architecture is the subject of the drawings and architecture, and the Mayers are alleged to have toured the plaintiff’s model homes in multiple times. Subsequently, the defendants are said to have created, or had created, technical drawings of a house, which was eventually constructed, that is substantially similar to the plaintiff’s flagship model toured by the Mayers.

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Indianapolis, Indiana – Intellectual property counsel for Top Ten Imports, LLC of Indianapolis, IN, filed a trademark and copyright infringement suit against BMX Imports, L.P. of Farmers Branch, TX. Specifically, the plaintiff Top Ten alleges that the defendant has infringed Top Ten’s space heater trade dress as well as Trademark Reg. No. 3,654,284 for the mark IHEATER, registered with the U.S. Trademark Officein connection with electric space heaters, and copyrighted works protected under Application No. 1-501133071 and Application No. 1-501353066, both of which have been registered by the U.S. Copyright Officeand are directed to ornamental heater design.

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Indiana Intellectual Property: IP Litigation, Patents, Trademarks, Copyrights
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