Intellectual Property Law

September 14, 2018

WHOIS Information Update

While finding the owner of a domain name has traditionally been an easy process, as of May 25, 2018, access for WHOIS information has changed. In light of the General Data Protection Regulation (“GDPR”) adopted by the European Union (“EU”) in April 2016, the Internet Corporation for Assigned Names and Numbers (“ICANN”) has had to attempt to form new policies to protect registrant information. The Temporary Specification for gTLD Registration Data (“Temporary Specification”) is ICANN’s attempt to comply with the GDPR while maintaining the WHOIS system by restricting most personal data. While the personal data will not be publicly available without some effort, those with a legitimate interest in the contact information will be able to request such information through their domain registrar. They may also be able to contact the registrant through anonymized email or web forms.

These changes are really hitting home for trademark owners who may not able to file a complaint directly against the domain name registrant due to the information being restricted. While not all WHOIS information is unavailable, complainants in most cases will have extra steps that they must take in order to file a complaint. If the information is not available on WHOIS, the complainant will have to verify that the information is not publicly available in the complaint. After the complaint has been filed, FORUM will contact the registrar to obtain the restricted contact information. For Uniform Domain-Name Dispute-Resolution Policy (“UDRP”) cases, the complainant will have to amend the complaint with the newly received registrant contact information. For Uniform Rapid Suspension Systems (“URS”) cases, complaints may not be amended to include additional registrant information under the URS Procedure and Rules, however, the Temporary Specification allows FORUM to add registrant information after the complaint is filed.

The Expedited Policy Development Process (“EPDP”) initiated by ICANN will consider the adoption of the temporary specification and will likely include a discussion of a standardized access model for the restricted registration information. For any questions, you can contact the Director of Arbitration for FORUM, Renee Fossen by mail at 6465 Wayzata Blvd., Suite 480, Minneapolis, MN 55405, by phone at 952-516-6456, or email at rfossen@adrforum.com.

August 24, 2018

Indiana Copyright Litigation: Attorney Bell Sues Another for Copyright Infringment

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Plaintiff and Attorney, Richard N. Bell of McCordsville, Indiana, filed suit in the Southern District of Indiana alleging that Defendant, Joan Mattox, infringed his rights to the “Indianapolis Photo” registered on August 4, 2011 with the U.S. Copyright Office, Registration No. VA0001785115. Plaintiff is seeking actual and statutory damages, costs, reasonable attorney’s fees and other relief deemed just and proper.

Bell has filed many copyright infringement cases on his own behalf based on his copyrights. See:

In this case, Bell claims that Mattox created a website to promote her business in the Indianapolis area with the domain name of http://www.readymadestaffing.com/. The Defendant then used the Indianapolis Photo on the website to garner the attention of prospective customers. It is alleged that the Indianapolis Photo was displayed on the webpage on or about December 15, 2015 and was still being displayed as of the filing of the Complaint. Bell is suing for copyright infringement and vicarious liability for each third-party download of the Indianapolis Photo from the Mattox’s website. Bell claims that Mattox falsely claimed that Ready Made Resources owned all of the photos and images on their website and used the Indianapolis Photo commercially without paying for the use or obtaining authorization from the Plaintiff. Further, Bell alleges that the Defendant refuses to pay damages for the unauthorized use and has not agreed to be enjoined from further use of the Indianapolis Photo.

It is alleged that the Indianapolis Photo was displayed on the webpage on or about December 15, 2015 and was still being displayed as of the filing of the Complaint. Bell is suing for copyright infringement and vicarious liability for each third-party download of the Indianapolis Photo from the Mattox’s website. Bell claims that Mattox falsely claimed that Ready Made Resources owned all of the photos and images on their website and used the Indianapolis Photo commercially without paying for the use or obtaining authorization from the Plaintiff. Further, Bell alleges that the Defendant refuses to pay damages for the unauthorized use and has not agreed to be enjoined from further use of the Indianapolis Photo.

August 16, 2018

Indiana Copyright Litigation: Attorney Richard Bell Sues Local Realtor for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorney Richard Bell of McCordsville, Indiana filed suit in the Southern District of Indiana alleging that Defendant, Amy Polston, infringed his rights to the “Indianapolis Photo” registered on August 4, 2011 with the US Copyright Office, Registration No. VA0001785115. Plaintiff is seeking actual and statutory damages, attorneys’ fees, and any other relief as is just and proper.

Bell, who has filed numerous similar cases, took the Indianapolis Photo in March 2000. He subsequently posted the photo online in August 2000 and registered the photo with the US Copyright Office nearly 11 years later. Bell alleges that Polston used the Indianapolis Photo on a website she created to promote and advertise her business in the Indianapolis area. He further alleges that Polston falsely claimed to Trulia.com, the profile host, that she owned the copyrights of all images and photographs used on her profile including the Indianapolis Photo. Bell asserts that Polston began using the Indianapolis Photo on her website beginning in 2014 without paying for the use or licensing the photo from him.

Plaintiff has filed this suit as Polston has refused to pay for the unauthorized use and has not agreed to be enjoined from using the Indianapolis Photo. As such, Bell claims that Polston is vicariously liable for each downloaded copy of the Indianapolis Photo by each third-party that downloaded it from her website. He also claims that she is liable for all profits resulting from these downloads and copyright infringement, even if she did not know that any use of the Indianapolis Photo would infringe Bell’s copyright.

August 15, 2018

Indiana Copyright Litigation: Indiana Artist Files Copyright Infringement Case Over Unauthorized Derivative Works

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Michel Keck of Jefferson Township, Owen County, Indiana, filed suit in the Southern District of Indiana alleging that Defendants, John Mark Lawrence d/b/a Mark Lawrence Art Gallery of Alpharetta, Georgia, and DOES 1 through 25 infringed numerous pieces of artwork. Plaintiff is seeking judgment, actual damages, statutory damages, cost of litigation, and reasonable attorney’s fees.

Keck is a successful abstract and mixed media artist. She opened an online art gallery and her own fine art publishing company in 2006. Over 1,500 of her original paintings had sold by the end of 2006 to art collectors throughout the world. Keck has registered 22 original paintings (the “Works”) with the United States Copyright Office.

Defendant Lawrence gave an interview in 2009 stating that he creates his art by digitally manipulating existing images using Photoshop and other such computer programs. In April 2014, Keck was approached by an online distributor, Framed Canvas Art, and was given Lawrence’s contact information as a reference. In response to Keck’s email seeking information about the distributor, Lawrence stated, “I just took a look at your art – wow! You have a new fan.” Over three years later in September 2017, Keck found numerous art pieces for sale attributed to Lawrence that appeared to be unauthorized derivatives of her Works. It looked as though Lawrence would take one of Keck’s Works and then mirror or rotate it before running it through a computerized filter (creating “Unauthorized Derivative Works”).

August 13, 2018

Indiana Copyright Litigation: Dr. Keith Bell Files Suit Against an Indiana Resident and USA Volleyball for Copyright and Trademark Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Keith F. Bell, Ph.D. of Texas filed suit in the Northern District of Indiana alleging that Defendants, Lloy Ball, of Angola, Indiana, and USA Volleyball of Colorado Springs, Colorado infringed his rights in Copyright Registration Number TX-0002-6726-44 titled “Winning Isn’t Normal” (the “Infringed Work”) and his rights in Trademark Registration Number 4630749. Plaintiff is seeking judgment awarding damages, actual damages, profits, statutory damages, attorneys’ fees, injunctive relief, pre-judgement, and post judgment interest.

The Infringed Work was first published in 1982 and registered with the U.S. Copyright Office in 1989. Dr. Bell continues to offer for sale and market his book and derivative works such as posters and t-shirts with a specific passage known as the “WIN Passage”. He has offered and continues to offer licenses to those that may wish to publish or utilize the WIN Passage. The word mark “WINNING ISN’T NORMAL” has also been registered with the United States Patent and Trademark Office with Registration No. 4630749 for printed matter.

Dr. Bell alleges that Defendant Ball posted a representation of the WIN Passage on his Twitter account on or about November 12, 2015. This post received at least 51 “retweets” and 201 “likes” from Ball’s over 2,000 followers. Dr. Bell also claims that Defendant USA Volleyball posted a representation of the WIN Passage on their Twitter account on or about November 20, 2015 that included a “retweet” of the post by Defendant Ball. This post received at least 30 “retweets” and over 7,000 “likes” from USA Volleyball’s over 123,000 followers. Cease and desist letters were sent to Ball and USA Volleyball on July 15, 2016 and April 21, 2017, respectively. Both Defendants removed their posts shortly after the letter was sent to Ball, automatically removing all retweets of the post. While the Defendants have acknowledged liability to the Plaintiff, they have not agreed to enter into a settlement agreement to protect the Plaintiff’s rights and compensate him for his injuries, leading to this suit for both copyright and trademark infringement.

August 7, 2018

Indiana Copyright Litigation: Attorney Bell Strikes Again Suing The Association for Behavior Analysis, Inc. for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorney Richard Bell of McCordsville, Indiana filed suit in the Southern District of Indiana alleging that Defendant, The Association for Behavior Analysis, Inc., infringed his rights to the “Indianapolis Photo” registered on August 4, 2011 with the US Copyright Office, Registration No. VA0001785115. Plaintiff is seeking actual and statutory damages, costs, reasonable attorneys’ fees, and any other relief as is just and proper.

Bell has sued many in Indiana federal courts asserting copyright infringement on his own behalf. See:

In this case, Defendant created a website for their business to promote an Indianapolis convention [http://hoosieraba.com/category/Indianapolis]. Plaintiff alleges Defendant published the Indianapolis Photo on that site without his permission. Bell has fully controlled his photograph from 2000 and registered it with the US Copyright Office in 2011. He discovered this alleged infringement of his photo in May 2018 with the use dating back to 2014. The Plaintiff not only alleges copyright infringement, but also vicarious liability for each copy of his photograph downloaded by third-parties from the Defendant’s website.

August 6, 2018

Indiana Copyright Litigation: Bell Sues Indiana Pool Table Moving Company for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana –Plaintiff and Attorney, Richard N. Bell of McCordsville, Indiana, filed suit in the Southern District of Indiana alleging that Defendant, Harold Fischer, infringed his rights to the “Indianapolis Photo” registered on August 4, 2011 with the US Copyright Office, Registration No. VA0001785115. Plaintiff is seeking actual and statutory damages, costs, reasonable attorneys’ fees and other relief deemed just and proper.

Bell is notorious for filing many lawsuits on his own behalf asserting copyright infringement in Indiana federal courts. He has published or licensed the Indianapolis Photo in compliance with copyright laws since March 2000. The photograph was first published online on August 29, 2000 by Bell on his Web shots account. Almost eleven years later, Bell registered the photograph with the US Copyright Office.

Defendant, Fischer, created a website for his Indianapolis-based business at http://pooltablemoving.com/. It is alleged that he committed copyright infringement by including the Indianapolis Photo on his website from 2016 to 2018 without properly licensing from Bell. The Plaintiff also claims that Fischer is vicariously liable for each downloaded copy of the Indianapolis Photo by any third-party user from the business website.

June 21, 2018

Seventh Circuit Upholds Preliminary Injunction Issued in Favor of Elanco US, Inc. Against Arla Foods

By Overhauser Law Offices, LLC

Eli Lilly & Company and its subsidiary, Elanco US Inc., both of Greenfield, Indiana, filed suit in the Eastern District of Wisconsin alleging that Arla Foods, Inc. USA of Denmark, and Arla Foods Production LLC a Delaware Corporation used false advertising and unfair business practices in regards to Arla brand cheeses.

In 2017, Arla Foods launched a $30 million advertising campaign focused on expanding its cheese sales in the U.S. These advertisements included ads featuring a seven-year-old girl describing recombinant bovine somatotropin (“rbST”), an artificial growth hormone used to treat cows, as a type of monster. The ads implied that milk from cows that were treated with rbST was unwholesome and unnatural, therefore not good for your family.

Elanco makes the only FDA-approved rbST supplement, marketed under the name Posilac®. After the Arla campaign launched, Elanco filed suit alleging that Arla was in violation of the Lanham Act and simultaneously moved for a preliminary injunction with supporting copies of ads, evidence that a major cheese distributor decreased its purchasing of rbST in response to the ad campaign, and scientific literature pertaining to rbST’s safety. The district judge issued the requested injunction and later modified the injunction to cure technical deficiencies.

June 15, 2018

Federal Circuit Court of Appeals Affirms Ruling by Indiana Southern District Declining Award of Attorney Fees

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Stone Basket Innovations, LLC of Austin, Texas, filed a patent infringement lawsuit in the Eastern District of Texas which was transferred to the Southern District of Indiana alleging that Cook Medical, LLC of Bloomington, Indiana, infringed Patent No. 6,551,327 (“‘327 Patent”), Endoscopic Stone Extraction Device with Improved Basket, issued by the US Patent Office.

The initial Complaint for this case was filed on April 8, 2015. Defendant served their invalidity contentions in October 2015 and deposed the ‘327 patent’s inventor in January of 2016. During the deposition, the inventor stated in regards to an addition to overcome an examiner’s rejection, “I realize there is nothing novel about it.” Defendant then petitioned the U.S. Patent and Trademark Office for inter partes review (IPR) of all the claims. The District Court case was stayed pending the outcome of the petition for an IPR based off a joint motion.

After the IPR was instituted in September 2016, Plaintiff offered to license the ‘327 patent to Defendant for $150,000.00. Negotiations fell through and the settlement did not occur. Plaintiff then filed a motion requesting an adverse judgment in the IPR proceeding in December 2016 and moved to dismiss the District Court case with prejudice, both of which were granted.

June 14, 2018

Indiana Copyright Litigation: Illinois Photographer Sues Indiana Company Over Unauthorized Use of Photograph

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorney for Plaintiff, Linda Matlow of Chicago, Illinois filed suit in the Southern District of Indiana alleging that Defendant, Rodgers Broadcasting Corp. of Richmond, Indiana, infringed its rights to the “Parr Photo” registered on December 7, 2011 with the U.S. Copyright Office, Registration Number VAu 1-085-861. Plaintiff is seeking actual and/or statutory damages, costs, attorney’s fees, an injunction, and any other relief as is just and proper.

Plaintiff’s Attorney, Bell, has filed many lawsuits on his own behalf asserting copyright infringement in Indiana federal courts. Bell has been unsuccessful as a plaintiff in many of his own infringement cases and has been ordered to pay the Defendant’s fees as a result. See:

According to the complaint, the Plaintiff took the photograph in question in the 1980’s and proceeded to register the photograph with the U.S. Copyright Office in 2011. Plaintiff alleges that the Defendant infringed on her copyright when its subsidiary KMIX 106.9 published the photograph on their Twitter account in 2017.