Articles Posted in New Litigation

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Indianapolis, Indiana – Attorneys for Plaintiffs, All Cell Technologies, LLC (“All Cell”) and Illinois Institute of Technology (“IIT”), both of Chicago, Illinois, filed suit in the Southern District of Indiana alleging that Defendants, Workhorse Motor Works Inc. (“WMW”) of Union City, Indiana, and Workhorse Group Inc. (“WGI”) of Loveland, Ohio (collectively “Workhorse”) infringed their rights in United States Patent No. 6,468,689 (the689-300x223 “‘689 Patent”) for “Thermal Management of Battery Systems”, U.S. Patent No. 6,942,944 (the “‘944 Patent”) for “Battery System Thermal Management”, and U.S. Patent No. 8,273,474 (the “‘474 Patent”) for “Battery System Thermal Management”. The Plaintiffs are seeking damages, prejudgment interest, and any further relief that the Court deems proper.

474-300x239According to the complaint, All Cell utilizes phase change materials (“PCM”) to build blocks adapted to house electrochemical cells. The thermal management blocks used by All Cell allegedly utilize PCM to absorb and conduct heat away from the electrochemical cells to extend the life of the cell and prevent damage or fire to electrochemical batteries. Workhorse is in the business of developing and manufacturing electric vehicles and plug-in hybrid vehicles. All Cell claims it worked with Workhorse previously to provide its thermal management blocks for Workhorse’s electric vehicles. Per the944-265x300 complaint, Workhorse stopped purchasing thermal management blocks and electrochemical cells from All Cell in early 2017 and began purchasing them from alternate sources.

It is alleged that the ‘689 Patent, the ‘944 Patent, and the ‘474 Patent are all owned by IIT with All Cell having an exclusive licensing agreement for the use of the patents, giving both parties standing to sue for infringement. As such, IIT and All Cell have collectively brought a patent infringement action against Workhorse. Plaintiffs allege at least claims 1-6 and 8 of the ‘689 Patent, claims 1, 2, 15, 16, 21-23, and 26 of the ‘944 Patent, and claims 1-3, 5, 7, 9-12, and 15-19 of the ‘474 Patent have been or are being infringed by Workhorse. IIT and All Cell are claiming infringement pursuant to 35 U.S.C. § 271(a), knowingly and actively inducing infringement by others pursuant to 35 U.S.C. § 271(b), and knowingly and actively contributing to the infringement by others pursuant to 35 U.S.C. § 271(c). Plaintiffs are seeking damages to compensate for the infringement but are seeking no less than a reasonable royalty under 35 U.S.C. §284.

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Indianapolis, Indiana – Attorneys for Plaintiff, Allan Tannenbaum of New York, New York, filed suit in the Northern District of Indiana alleging that Defendant, The2Connect, LLC of Elkhart, Indiana, infringed his rights in United States Copyright Registration No. VA 123-967.  Tannenbaum is seeking actual damages, statutory damages, costs, attorneys’ fees, prejudgment interest, and any further relief that the Court deems proper.

Tannenbaum claims he is a professional photographer that licenses his photographs to online and print media sources for a fee. The photograph at issue in this case, is one that Tannenbaum allegedly took of John Lennon and Yoko Ono (the “Photograph”).

Roadtrippers-blogphoto-300x66

According to the complaint, The2Connect operates a website with the URL: https://maps.roadtrippers.com (the “Website”). Tannenbaum claims The2Connect utilized his Photograph in connection with an article entitled Rock and Roll Deaths Tour: Top 12 Dearly Departed Rockers on the Website without Tannenbaum’s permission. As such, Tannenbaum is suing The2Connect for copyright infringement in violation of 17 U.S.C. §§ 106 and 501 and seeking damages pursuant to 17 U.S.C. § 504(b) or (c). Tannenbaum is also seeking attorneys’ fees pursuant to 17 U.S.C. § 505.

The plaintiff Tannenbaum is represented by Richard Liebowitz of Valley Stream, New York.  Mr. Liebowitz frequently files copyright infringement lawsuits, and has the dubious distinction of being frequently sanctioned.  In an order dated July 10, 2019 in the case of Rice v. NBCUniversal Media LLC, Judge Furman imposed another sanction against Mr. Liebowitz and his firm for $8745.50 due to his failure to comply with court orders relating to a mediation and requiring his appearance in court.  That order begins with this:

In his relatively short career litigating in this District, Richard Liebowitz has earned the dubious distinction of being a regular target of sanctions-related motions and orders. Indeed, it is no exaggeration to say that there is a growing body of law in this District devoted to the question of whether and when to impose sanctions on Mr. Liebowitz alone.
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Indianapolis, Indiana – Attorneys for Plaintiffs, CMB Entertainment, LLC (“CMB”) a limited liability company formed under the laws of the State of Indiana and Bryan Abrams (“Abrams”) of Oklahoma, filed suit in the Southern District of Indiana alleging that Defendants, Mark Calderon (“Calderon”) of Ohio and Pyramid Entertainment Group, Inc. (“Pyramid”) of New York, New York, transacting business in the State of Indiana, CMB-BlogPhoto-184x300infringed CMB’s rights in the federally registered U.S. trademark “COLOR ME BADD” (the “Mark”) and Calderon breached his fiduciary duties. Plaintiffs are seeking a preliminary injunction, damages, treble damages, pre-judgment interest, attorneys’ fees, and costs.

According to the complaint, CMB has two members, Abrams and Calderon, who were also two of the founding members for “Color Me Badd”, (the “Group”) a well-known R&B group. Plaintiffs claim Pyramid conducts business in Indiana as a booking agent which books shows and performances for the Group. Abrams claims he kept the Mark alive during the Group’s hiatus from 2000 to 2009/2010 by performing as Color Me Badd without the other three founding members.

Abrams and Calderon allegedly reformed the Group to perform at a concert in Hawaii in July 2010. A third member, Kevin Thornton (“Thornton”) then allegedly rejoined and the three formed CMB on May 26, 2011 for the business operations of the Group including owning the Group’s intellectual property rights. CMB filed to register the Mark on or about July 22, 2011 and was granted the Serial No. 85,378,693. Plaintiffs claim CMB is the sole owner of the Mark and at the time of formation, each member held an equal one-third interest in the company. While an operating agreement for CMB was drafted in October 2013, according to the complaint, it was never executed.

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Indianapolis, Indiana – Attorneys for Plaintiff, North Central Industries, Inc. (“North Central”) of Muncie, Indiana, filed suit in the Southern District of Indiana alleging that Defendants, Creative Licensing Center Corporation (“Creative”) of Los Angeles, California, Winco Fireworks, Inc., and Winco FireworksTerminator-BlogPhoto-1 International, LLC (collectively the “Winco Defendants”), both of Prairie Village, Kansas, infringed its rights in United States Trademark Registration No. 2745764 for the mark “Terminator” (“Registered Mark”). North Central is seeking profits, damages, interest, and reasonable attorneys’ fees.

North Central claims it has been in the business of importing and selling consumer fireworks in Indiana for over 50 years. The complaint asserts that the Registered Mark has been used in commerce since 2000 and that the registration has become incontestable under the Lanham Act, 15 U.S.C. § 1065. According to the complaint, North Central has used the Registered Mark in connection with essential oils since at least May 1, 1998 and, also in connection with consumer fireworks.

The complaint alleges Studiocanal Image S. A. f/k/a +D. A. (“Studiocanal”) filed an opposition to the Registered Mark, but the opposition was withdrawn on January 31, 2003. It was then allegedly dismissed with prejudice on March 31, 2003 by the Trademark Trial and Appeal Board. North Central alleges that the Winco Defendants entered into a licensing agreement with Studiocanal through Studiocanal’s agent, Creative, to use the trademark TERMINATOR. According to the complaint, Creative attempted to demand North Central “cease and desist” its use of the TERMINATOR mark, but the request was withdrawn after North Central’s counsel advised Creative of the Registered Mark’s incontestability status in March 2019. North Central claims it then informed the Winco Defendants of the Registered Mark’s status and demanded they cease and desist their infringing behaviors, which the Winco Defendants did not.

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Fort Wayne, Indiana – Attorneys for Plaintiff, Rieke LLC of Auburn, Indiana, filed suit in the Northern District of Indiana alleging that Defendant, Technocraft Industries India Ltd. (“Technocraft”) of India but allegedly doing business in this District, infringed its rights in United States Patent No. 8,292,133 (“the ‘133BlogPhoto1-300x158 Patent”) for “Vented Closure Assembly for a Container”, Patent No. D608,641 (“the ‘641 Patent”) for “Closure for a Container With Retaining Ring”, and Patent No. D610,007 (“the ‘007 Patent) for “Closure for a Container With Retaining Ring”. Rieke is seeking preliminary and permanent injunctions, compensatory damages, punitive damages, treble damages, attorneys’ fees, costs, and pre and BlogPhoto2-300x131post judgment interest.

Rieke claims its product being infringed in this case, the Flexspout II, which is an “anti-glugging pouring dispenser with a removable cap that can be crimped on to drums, barrels, or other containers”, is so unique it has three patents covering the invention. According to the complaint, Technocraft’s Managing Director, Sharad Kumar Saraf (“Saraf”), visits the U.S. frequently to attend trade shows and solicit customers and business partners. Rieke alleges Saraf attended a trade show in April 2018 at which he inspected the Flexspout II sample, asked questions about its patent protection, and that he was informed by Rieke’s representative that it would “protect its innovations and defend itself if Technocraft copied Rieke’s innovative designs.”

According to the complaint, Technocraft makes and offers for sale a foreign-made version of the product to Rieke’s U.S. customers at a much lower price than Rieke offers. After discovering Technocraft’s allegedly infringing actions, Rieke reached out to Saraf by phone and through a follow up cease and desist letter. Technocraft, according to Rieke, refuses to fully comply with the requests in Rieke’s letter and did not provide Rieke with all of the information requested. As such, Rieke filed suit seeking damages for the infringement of the ‘133 Patent, the ‘641 Patent, and the ‘007 Patent.

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Fort Wayne, Indiana – Attorneys for Plaintiff, North American Van Lines, Inc. (“NAVL”) of Fort Wayne, Indiana, filed suit in the Northern District of Indiana alleging that Defendant, Kettering Moving and Storage, Inc. (“Kettering”) of Dayton, Ohio, infringed its United States Trademark Registrations.

 

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NAVL is seeking preliminary and permanent injunctions, profits, actual damages, costs and attorney’s fees, investigatory fees, and further relief the court deems appropriate.

NAVL claims it has been providing transportation services since 1933 and has been using the marks NORTH AMERICAN and NORTH AMERICAN VAN LINES in connection with those services for many years. According to the complaint, there are seven registered marks at issue in this case. NAVL claims it has licensed companies to act as NAVL Agents including the right to use NAVL’s registered marks, but it has been careful in limiting such licensing activities. NAVL asserts that through its use of its registered marks and the control it maintained in their use through licensing agreements, the registered marks have acquired a secondary meaning.

Per the complaint, Kettering provides moving and storage services throughout the world. NAVL claims it had an agency contract with Kettering prior to July 24, 2018 in which Kettering was allowed to use NAVL’s registered marks. However, NAVL asserts that it terminated that relationship through a letter sent to Kettering on July 24, 2018. After being informed Kettering was still utilizing NAVL’s registered marks, NAVL claims it informed Kettering to cease and desist on February 28, 2019. NAVL claims Kettering disregarded this cease and desist and continues to display NAVL’s registered marks on its vehicles and signs.

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Saeilo-BlogPhoto-300x92Indianapolis, Indiana – Attorneys for Plaintiff, Saeilo Enterprises, Inc. (“Saeilo”) of Greeley, Pennsylvania, filed suit in the Southern District of Indiana alleging that Defendants, Salient Arms International, Inc. and Archon Firearms, Inc., both of Las Vegas, Nevada, infringed its rights in its United States Trademark Registration for ISRAEL MILITARY INDUSTRIES and the design of the Desert Eagle (the “Registered Marks”). Saeilo is seeking injunctive relief, statutory damages, and attorneys’ fees.

Saeilo claims it owns federal trademarks for ISRAEL MILITARY INDUSTRIES and the name, shape, and design of the Desert Eagle. Saeilo further claims its Desert Eagle design is world famous and therefore it has common law trademark rights in the Desert Eagle shape and design. According to the complaint, Saeilo generates significant revenue from licensing its trademarks and designs.

The complaint alleges Defendants manufacture and sell miniature and full-size firearms. Saeilo alleges Defendants displayed for sale and sold a miniature Desert Eagle handgun while attending the Shot Show in Las Vegas, Nevada. Subsequently, it is alleged Defendants advertised the miniature Desert Eagle on their website. Saeilo is seeking damages for trademark infringement as it claims Defendants have violated 15 U.S.C. §§ 1114(1) and 1125(a) and (c).

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Indianapolis, Indiana – Attorneys for Plaintiff, Wyliepalooza Ice Cream Emporium, LLC (“Wyliepalooza”) of Indianapolis, Indiana, filed suit in the Southern District of Indiana alleging that Defendants, B.A.M. Sweets, LLC d/b/a Wylie’s of Brownsburg, Indiana, Amanda R. Johnson, and Stephen B. Johnson infringed multiple common law trademarks utilized by Wyliepalooza. Wyliepalooza is seeking preliminary and permanent injunctions, profits, actual damages, costs and attorney’s fees, investigatory fees, and any further relief the court deems appropriate.Untitled

According to the Complaint, Wyliepalooza opened its ice cream shops in Indianapolis in 2013 and began operating its ice cream truck in Indianapolis since May 2014. Wyliepalooza claims its common law trademarks include “WYLIE, WYLIEPALOOZA, WYLIEPALOOZA ICE CREAM EMPORIUM and WYLIEPALOOZA ICE CREAM TRUCK” (collectively, the “Wyliepalooza Trademarks”). Wyliepalooza claims its trademarks are immediately identifying within Indianapolis as it has utilized the Wyliepalooza Trademarks throughout the area to advertise and promote its goods and services.

Wyliepalooza claims Defendants, Amanda Johnson and Stephen Johnson (the “Johnsons”), entered into an asset purchase agreement for Wyliepalooza’s ice cream shop in Brownsburg, Indiana in December 2016. With this agreement, Wyliepalooza alleges the assets sold to the Johnsons did not include the Wyliepalooza Trademarks, but gave them a limited right to use “Wyliepalooza Ice Cream Emporium Brownsburg” at that specific location. Wyliepalooza further claims that the agreement had a clause giving Wyliepalooza the right to revoke the limited use of the name if the Brownsburg location received twenty bad reviews in one quarter or the Johnsons operated the business not within the spirit of the Wyliepalooza business model. According to the Complaint, the agreement was intended to be paid off within three years at which time the Johnsons would change the name of the location to “BAM Sweets.”

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Indianapolis, Indiana – Attorneys for Plaintiffs, Broadcast Music, Inc. of New York, New York, UniversalBMI2 Millhouse Music, Combine Music Corp., Rondor Music International, Inc. d/b/a Irving Music, Dandelion Music Co., Groper Music, Rhythm Wrangler Music, Songs of Universal, Inc., Get Loose Music, Inc., Tremonti Stapp Music, Reservoir Media Management Inc. d/b/a Reservoir 416 a/k/a Reservoir One America, Barbara Nicks Music, and Concord Music Group, Inc. d/b/a Jondora Music filed suit in the Southern District of Indiana alleging that Defendants, Dman Incorporated d/b/a The Grove Sports Bar & Eatery, James D. Pettigrew, and Deann Hensley all of Beech Grove, Indiana infringed its rights in many United States Copyright Registrations of musical compositions as stated below.

Musical Composition

 Registration and Date of Registration
Beat It PAu 456-334, PA 158-771, November 16, 1982, December 27, 1982
Don’t Tell My Heart a/k/a Achy Breaky Heart PA 534-864, July 29, 1991
Me and Bobby McGee Ep 260746, July 18, 1969
Seven Bridges Road Eu 106284, PA 104-190, March 21, 1969, April 13, 1981
She’s Some Kind of Wonderful a/k/a Some Kind of Wonderful Ep 232189, June 5, 1967
Trashy Women PAu 1 150 124, October 17, 1988
What’s Your Name Eu 853395, PA 13-433, December 7, 1977, July 3, 1978
My Own Prison PA 966-903, October 4, 1999
Silver Springs RE 905-601, Eu 713078, December 10, 2004, August 31, 1976
Proud Mary EU 91333, Ep 260526, December 27, 1968, July 11, 1969
Paradise Eu 785460, PA 13-430, May 13, 1977, September 18, 1978

Plaintiffs are seeking statutory damages, cost, attorneys’ fees, and any other relief the Court deems appropriate.

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Hammond, Indiana – Attorneys for Plaintiff, New Berry, Inc., d/b/a Berry Metal Company (“New Berry”) of Harmony, Pennsylvania filed suit in the Northern District of Indiana alleging that Defendants, Todd G. Smith (“Smith”) of Grove City, Pennsylvania, and Allan J. MacRae (“MacRae”), and MacRae Technologies, Inc. blogphoto-194x300(“MacRae Technologies”), both of Hayward, California, infringed its rights in United States Patent No. 10,222,124 (the “‘124 Patent”) for “Stave with External Manifold” and United States Patent No. 9,121,076 (the “‘076 Patent”) for “Stave and Brick Constrictions Having Refactory Wear Monitors and in Process Thermocouples.” New Berry is seeking actual, compensatory, exemplary, and punitive damages, pre and post judgment interest, and attorneys’ fees.

According to the complaint, New Berry is the owner and assignee of both the ‘124 Patent, which was filed February 1, 2013 and issued on March 5, 2019, and the ‘076 Patent, which issued on September 1, 2015. New Berry claims that Smith signed an Employment Agreement with New Berry in 1996, which among other things assigned all of Smith’s inventions during his employment to New Berry and prohibited Smith from using or disclosing any trade secrets that pertain to New Berry’s products and services. Smith is listed as the inventor of the ‘124 Patent and a co-inventor of the ‘076 Patent.

New Berry claims that Smith, who left New Berry in 2015, is collaborating with MacRae and MacRae Technologies and has shared New Berry’s trade secrets with them. MacRae filed a patent application November 16, 2017 that issued as U.S. Patent No. 9,963,754 (the “’754 Patent”) on May 8, 2018. The complaint alleges MacRae assigned the ‘754 Patent to MacRae Technologies on March 6, 2019. New Berry claims that the “‘124 Patent reads on the staves comprising center manifold technology described and claimed in the ‘754 Patent.”

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Indiana Intellectual Property: IP Litigation, Patents, Trademarks, Copyrights
  • Seventh Circuit
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Paul B. Overhauser
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