Indiana State Law

September 8, 2016

Indiana Copyright Litigation: Airbrushing Firm Sues Boat Seller for Copyright Infringement, Breach of Contract

South Bend, Indiana – Copyright lawyers for Plaintiff The Art of Design, Inc. of Elkhart, Indiana filed an intellectual property lawsuit in the Northern District of Indiana. Defendants in this Indiana lawsuit are Pontoon Boat, LLC d/b/a Bennington and Bennington Marine of Elkhart, Indiana and Hawkeye Boat Sales, Inc. of Dubuque, Iowa.

Plaintiff is in the business of custom airbrushing, including the airbrushing of copyrighted art works onto different surfaces. Defendants offer marine goods, including pontoon boats. In 2011, Plaintiff and Bennington entered into an agreement wherein Bennington paid Plaintiff to apply copyrighted graphics, titled “Shatter Graphics,” to a limited number of Bennington’s pontoon boats in exchange for payment.

Plaintiff contends that, following this authorized application of Shatter Graphics to Defendants’ pontoon boats, Defendant made further use of the copyrighted design without Plaintiff’s authorization.

In this Indiana litigation, Plaintiff makes several allegations, including accusing Defendant of copyright infringement for the sale of pontoon boats bearing graphics “that are copied from and substantially similar to” Plaintiff’s Shatter Graphics, which has been registered with the U.S. Copyright Office under Registration numbers VA 1-979-388 and 1-982-002. The lawsuit lists the following claims for relief:

• Count I – Breach of Contract against Bennington
• Count II – Unjust Enrichment against all Defendants
• Count III – Copyright Infringement against all Defendants
• Count IV – Unfair Competition against all Defendants
• Count V – Inducing Copyright Infringement against Bennington

• Count VI – Violations of DMCA, 17 U.S.C. § 1202

Plaintiff is seeking damages, including treble damages, as well as equitable relief, costs and attorneys’ fees.

Practice Tip: Plaintiff’s copyright attorneys also represent frequent litigant Design Basics. We have blogged about Design Basics’ Indiana copyright litigation before. See:

• Design Basics Sues Fort Wayne Homebuilders
• Creator of Architectural Designs Files Two New Copyright Lawsuits
• Design Basics Files Three New Indiana Copyright Lawsuits
• Architecture Firms File Four New Infringement Lawsuits
• Design Basics Files Two New Copyright Lawsuits
• Architecture Firm Files New Lawsuit Asserting Infringement
• Design Basics Files Two Additional Infringement Lawsuits in the Northern District
• Design Basics Files Additional Indiana Lawsuit

• Design Basics Sues Builders and Others Alleging Infringement of Copyrighted Architectural Designs

July 29, 2016

Indiana Trademark Litigation: Lilly Sues Australian Seller of Gray-Market Veterinary Products

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Trademark attorneys for Eli Lilly and Company of Indianapolis, Indiana and Novartis Tiergesundheit AG of Basel, Switzerland filed a lawsuit in the Southern District of Indiana alleging trademark infringement and unfair competition.

Plaintiffs offer pet medications, such as flea-control and heartworm treatments, for sale in the U.S. and other countries worldwide. Among these medications are the following trademarked products, which have been registered by the U.S. Patent and Trademark Office:

ELANCO, registration number 710,473
COMFORTIS, registration number 3,370,168
INTERCEPTOR, registration number 2,015,850
CAPSTAR, registration number 2,510,863

TRIFEXIS, registration number 3,944,743

Plaintiffs allege that Defendants Scott Martin d/b/a Best Value Pet Supplies of Queensland, Australia and various unknown “Doe” Defendants infringed the trademarks at issue by selling in the U.S. trademarked products that were intended for sale in other countries via their website, www.bestvaluepetsupplies.com.

Plaintiffs contend that these products are materially different from products intended for sale in the U.S., citing differences such as different units of measure as well as non-U.S. addresses and telephone numbers listed on packaging as contact information.

In this Indiana trademark lawsuit, the following counts are alleged:

• Count I: Trademark Infringement in Violation of Section 32 of the Lanham Act
• Count II: Unfair Competition in Violation of Section 43(a) of the Lanham Act
• Count III: Unfair Competition in Violation of Indiana Common Law

Plaintiffs contend that Defendants’ conduct was willful and ask the court to order equitable relief, as well as the payment of compensatory and punitive damages, attorneys’ fees and costs of this litigation.

July 18, 2016

Indiana Trademark Litigation: Eye 4 Group Sues Over Use of Eyefourgroup.com

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Trademark attorneys for Eye 4 Group, LLC Corporation (“E4G”) of Fishers, Indiana filed an intellectual property lawsuit in the Southern District of Indiana. Defendants are Indianapolis Signworks, Inc. (“ISW”) of Indianapolis, Indiana and Andrew Chapman of Carmel, Indiana, the owner of ISW.

Plaintiff E4G is in the business of graphic design, sign manufacturing, metal fabrication, promotional material and apparel. It owns a registration for the trademark EYE 4 GROUP, Reg. No. 4,694,655, which has been issued by the U.S. Patent and Trademark Office. It has also an application for the registration of a second trademark for EYE 4, pending under Serial No. 87/018,205.

E4G states that Defendant ISW is a direct competitor in the business of making signs as well as associated tools and products. E4G, which owns and operates the website eye4group.com, contends that ISW has used the internet domain name “eyefourgroup.com” and, in doing so, has infringed E4G’s intellectual property. E4G asserts that Defendants’ actions constitute a knowing infringement of its trademark rights and that those actions were intentional, willful and in bad faith.

In this Indiana lawsuit, Plaintiff alleges direct and contributory trademark infringement, false designation of origin, and unfair competition arising under the Lanham Act; dilution under the Federal Trademark Dilution Act; violations of the Anticybersquatting Consumer Protection Act and related wrongdoing under Indiana state law.

Plaintiff seeks injunctive relief and monetary relief, including punitive damages, attorney fees and costs of the litigation.

June 24, 2016

Indiana Trademark Litigation: Fitness Studio Operator Accused of Trademark Infringement, Fraud

By Overhauser Law Offices, LLC

Indianapolis, Indiana – A Massachusetts trademark lawsuit filed in July 2015 was transferred to the Southern District of Indiana, Indianapolis Division. Plaintiff Get In Shape Franchise, Inc. (“GIS”), a Massachusetts-based franchisor, alleges that Defendants TFL Fishers, LLC and its sole member, Rosalyn Harris; Thinner For Life, Inc.; and Fit Chicks, LLC, all of Fishers, Indiana infringed its intellectual property rights. GIS asks the Indiana federal court: (1) to order the discontinuation of Defendant’s infringement of its registered trademarks; (2) for injunctive relief due to breach of contract, unfair competition and breach of the covenant of good faith; (3) to order compliance by Harris of her post-contractual obligations.

GIS sells fitness franchises under the service mark “Get In Shape For Women.” Registration Certificates for Plaintiff are as follows:

MARK	Reg. No.	Reg. Date
“Get in Shape for Women”	Service Mark Reg. 3,374,173	Jan. 22, 2008
“Your treatment is complete”	Service Mark Reg. 4,241,902	Nov. 13, 2012
“Get in Shape for Women Small Group Personal Training”	Service Mark Reg. 4,249,694	Nov. 27, 2012

Plaintiff contends that it entered into such a franchise agreement with TFL Fishers and Harris in April 2013 for use in the Fishers, Indiana market. This agreement provided for payment to the franchisor of a transfer fee as well as a royalty on the franchise’s gross sales. Plaintiff contends that, pursuant to the agreement, Harris also agreed to various restrictions on her activities, including prohibitions on certain activities that would compete with GIS.

According to the complaint, Harris notified GIS on June 24, 2015 that TFL Fishers was discontinuing its franchised business and had closed its Fishers fitness studio. Instead, contends Plaintiff, it discovered on June 30th that the Fishers studio continued to operate but that it had changed its name to “Fit Chicks.” GIS alleges that this was improper. It also accuses Defendants of other wrongful acts, such as willfully underreporting total sales and, consequently, underreporting the royalty fees due to GIS.

Trademark attorneys for Plaintiff list the following claims for the Indiana federal court’s review and adjudication:

• First Cause of Action: Violation of the Lanham Act
• Second Cause of Action: Breach of Contract – Injunctive Relief
• Third Cause of Action: Breach of Contract – Damages
• Fourth Cause of Action: Breach of the Covenants of Good Faith and Fair Dealings
• Fifth Cause of Action: Unjust Enrichment
• Sixth Cause of Action: Unfair Competition

• Seventh Cause of Action: Fraud

Plaintiff seeks damages, including treble damages, along with enforcement of the franchise agreement, equitable relief, attorney’s fees and costs.

June 20, 2016

Indiana Trademark Litigation: Botanic Gardens Asserts Infringement of 91-Year-Old Trademark

By Overhauser Law Offices, LLC

Hammond, Indiana – Trademark attorneys for Plaintiff Indiana Botanic Gardens, Inc. of Hobart, Indiana sued Defendant Snyder Manufacturing Corporation of Long Beach, California, which does business as Eurospa Aromatics and Eurospa Chemicals, alleging trademark infringement and related causes of action.

At issue in the lawsuit is U.S. Trademark Registration No. 1,327,965 for the trademark EUCAMINT for camphorated ointment. Plaintiff states that it owns this registration, which was issued April 2, 1985. It also states that the mark was first used in commerce in 1925. Plaintiff contends that Defendant’s use of EUCAMINT to market an aromatic shower mist infringes its trademark.

This litigation, filed by Indiana trademark lawyers for Plaintiff, asserts the following causes of action:

• Count I: Federal Trademark Infringement
• Count II: Unfair Competition Under Federal Law

• Count III: Common Law Trademark Infringement and Unfair Competition Under Indiana Law

Plaintiff Indiana Botanic Gardens claims that Defendant Snyder Manufacturing acted intentionally and willfully in an attempt to trade upon the goodwill of the EUCAMINT trademark. Plaintiff asks that the court order the payment of damages, including punitive damages. It also seeks equitable relief, costs and attorneys’ fees.

May 12, 2016

Indiana Trademark Litigation: Usage of “Hyperpure” Alleged to Infringe Hydrapure Trademark

By Overhauser Law Offices, LLC

Hammond, Indiana – A trademark attorney for Plaintiff NIBCO Inc. of Elkhart, Indiana commenced trademark infringement litigation in the Northern District of Indiana.

Defendant in the litigation is Legend Valve & Fitting, Inc. of Auburn Hills, Michigan. It is accused of infringing NIBCO’s HYDRAPURE trademark, which has been registered with the U.S. Patent and Trademark Office under Trademark Registration Nos. 4,296,125 and 4,314,186 in conjunction with the sale of metal pipe fittings.

Plaintiff alleges Defendant’s use of HYPERPURE to market its goods creates an identical commercial impression to Plaintiff’s HYDRAPURE trademark. Calling Defendant’s use “a reproduction, counterfeit, copy, or colorable imitation” of its own trademark, Plaintiff states that Defendant’s use of HYPERPURE will confuse consumers as to the source of the goods.

Plaintiff further contends that Defendant Legend chose the HYPERPURE mark in bad faith in an attempt to associate Defendant’s products with Plaintiff’s trademark and, in so doing, appropriate the goodwill that Plaintiff has built in the brand.

In this Indiana lawsuit, a trademark lawyer for NIBCO lists the following claims:

• Count I: Federal Trademark Infringement
• Count II: Federal Unfair Competition/False Designation of Origin
• Count III: Common Law Trademark Infringement
• Count IV: Common Law Unfair Competition

• Count V: Federal Trademark Dilution

NIBCO asks the court for equitable relief; damages, including punitive damages; costs and attorney fees.

April 18, 2016

Indiana Intellectual Property Litigation: Former Employee of Sign Company Accused of Unfair Competition

By Overhauser Law Offices, LLC

Hammond, Indiana – An Indiana attorney for Plaintiff Landmark Signs, Inc. of Chesterton, Indiana filed an intellectual property lawsuit in the Northern District of Indiana.

Plaintiff Landmark states that it has been designing, fabricating, installing, and repairing signs throughout the U.S. for over thirty years. It claims to use at least two trademarks in connection with its business: a “Landmark” trademark, which it claims to have used at least as early as October 1983, and a stylized “Landmark Sign Group” trademark, which it claims to have used at least as early as March 1, 1999.

Landmark states that it holds various trademark rights, including federal trademark Registration No. 2,932,838, which was issued by the U.S. Patent and Trademark Office, as well as state registrations issued by Indiana and Illinois. Landmark also has a pending federal trademark application for “Landmark Sign Group” that seeks intellectual property protection for the mark in connection with services not listed in its currently registered federal trademark.

Defendants in this federal litigation are I C U Outdoor Advertising LLC (“ICU”) and ICU’s owner Lawrence Yurko, both of Valparaiso, Indiana. Yurko is a former employee of Landmark. He and ICU are accused of various violations of federal and Indiana state law, including trademark infringement, deceptive trade practices and using Yurko’s position at Landmark to advance the interests of ICU.

This lawsuit, filed by an Indiana lawyer for Landmark, lists the following claims:

• Count I: Federal Unfair Competition in Violation of 15 U.S.C. § 1125(a)(l)(A)
• Count II: Federal Unfair Competition in Violation of 15 U.S.C. § 1125(a)(l)(B)
• Count III: Breach of Fiduciary Duty
• Count IV: Indiana Unfair Competition and Tortious Interference with a Business Relationship
• Count V: Tortious Interference with a Prospective Economic Advantage
• Count VI: Illinois Deceptive Trade Practices
• Count VII: Federal Trademark Infringement

• Count VIII: Indiana and Illinois Trademark Infringement

Landmark seeks equitable relief, damages, including punitive damages, costs and 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.

March 28, 2016

Indiana Trademark Litigation: Great American Bagel Sues Over Sign Modified to Read “Great American Eagle”

By Overhauser Law Offices, LLC

Evansville, Indiana – An Indiana trademark lawyer for Plaintiff The Great American Bagel Enterprises, Inc. (“GAB”) of Westmont, Illinois filed a trademark infringement complaint in the Southern District of Indiana against Defendants United HBA Corporation and Harbhajan Singh, d/b/a The Great American Eagle, both of Evansville, Indiana.

GAB owns, operates and franchises food-products stores known as The Great American Bagel. It owns a trademark for “The Great American Bagel,” Trademark Registration No. 2,015,665, which is comprised of the phrase “The Great American Bagel” with stars and bands. The mark has been registered by the U.S. Patent and Trademark Office.

Defendant United HBA operates a gas station and convenience store, which offers retail food products. Defendant Singh is listed as the President and sole principal of United HBA. GAB contends that United HBA is displaying a sign that had previously been used as signage for a The Great American Bagel store. GAB states that Defendants modified “Bagel” to read “Eagle” by removing the “B” and adding an “E” but that the sign is otherwise unaltered.

GAB alleges infringement of its trademark, stating that Defendants’ use of the modified sign has caused customers to confuse the food products offered by GAB with those offered by Defendants. In this federal lawsuit, filed by an Indiana trademark attorney, the following claims are made:

• Count I: Federal Trademark Infringement
• Count II: False Designation of Origin, False Advertising and Unfair Competition under the Lanham Act Section 43(A)
• Count III: Unfair Competition – Trade Name Infringement
• Count IV: Unfair Competition – Passing Off

• Count V: Unjust Enrichment

GAB seeks equitable relief, damages, including punitive damages; costs and attorney’s fees.

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.