New Litigation

January 2, 2019

Indiana Trademark Litigation: Inspire Commerce, Inc. Claims Enspire Commerce Infringed Its Trademark Rights

Indianapolis, Indiana – Attorneys for Plaintiff, Inspire Commerce, Inc. (“Inspire”) of Boulder County, Colorado, filed suit in the Southern District of Indiana alleging that Defendants, enVista, LLC, enVista Interactive Solutions, LLC d/b/a Enspire Commerce, and RetailPoint II, LLC d/b/a RetailPoint, all of Carmel, Indiana, infringed its rights in United States Trademark Registration Number 4,344,942. Plaintiff is seeking damages, injunctive relief, and other relief as the Court may deem just and proper.

Inspire provides services and products related to financial transaction processing for both storefronts and online retail stores. As early as April 24, 2008, Inspire began using its INSPIRE COMMERCE mark (the “Registered Mark”) for their financial transaction services and products. Plaintiff filed for registration with the USPTO for the Registered Mark on October 27, 2010, and was issued a Certificate of Registration for it on June 4, 2013. Inspire filed a Combined Declaration of Use and Incontestability with the USPTO on July 27, 2018. The USPTO accepted and acknowledged the Combined Declaration on August 4, 2018.

Plaintiff alleges Defendants began using their assumed name “ENSPIRE COMMERCE” on or about October 30, 2013. Defendant Interactive Solutions filed a Certificate of Assumed Business Name for Enspire Commerce on or about May 23, 2014. Inspire claims Defendants began using Enspire Commerce in connection with their system for managing transactions, processing, and payments for merchants and retailers. After April 19, 2018, the Interactive Solutions and RetailPoint social media pages were both taken down, their websites were removed, and their domain names began forwarding to an enVista website.

December 24, 2018

Indiana Copyright Litigation: Vintage Aviation Publications, LLC Sued for Alleged Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff Matthew Sager of Millsboro, Delaware filed suit in the Northern District of Indiana alleging that Defendant, Vintage Aviation Publications, LLC of Huntington, Indiana, infringed its rights to the US Copyright Office Registration No. VA 2-122-899 titled “10022017SeaHarrier-100” and “10022017SeaHarrier-209”. Plaintiff is seeking damages, costs, expenses, attorneys’ fees, pre-judgment interest, and any other relief as the Court deems just and proper.

Sager, a professional photographer, took photographs of fighter jets. He later published the photographs on his website and registered them with the US Copyright Office. Sager alleges that on or about August 1, 2018, the Defendant ran an article in its July/August issue of its digest on its website and in print, that prominently featuring Sager’s registered photographs. Both the online version and print version were available for sale on the Defendant’s website.

As the Defendant did not license, or otherwise gain authorization to use the photographs from Sager, he is claiming copyright infringement under the Copyright Act, 17 U.S.C. §§ 106 and 501. Sager is also claiming that the Defendant cropped the watermark off his photographs in violation of 17 U.S.C. § 1202(b). For the intentional removal of his copyright management information, Sager is seeking statutory damages in a sum of at least $2,500 up to $25,000 per violation pursuant to 17 U.S.C. § 1203(c)(3).

December 20, 2018

Indiana Patent Litigation: Smart Living Home Seeks to Enforce Patent Rights to Birdbaths

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Smart Solar Inc. d/b/a Smart Living Home & Garden of Libertyville, Illinois, filed suit in the Southern District of Indiana alleging that Defendant, Sky Billiards, Inc. d/b/a Best Choice Products of Irvine, California, infringed its rights in United States Patent No. 7,484,671 (“the ‘671 Patent”) for “Water Feature”. Venue was selected by the Plaintiffs as the Defendant is registered to do business in the State of Indiana, maintains a distribution facility in Indiana, and has allegedly committed acts of infringement in the Southern District of Indiana. Further, Defendants admitted in a separate action with the Plaintiff in Illinois that venue would be proper in the Southern District of Indiana. Plaintiff is seeking injunctive relief and judgment including statutory damages and attorneys’ fees.

Smart Living designs, develops, and sells decorative birdbaths and fountains with solar water pumps. The ‘671 Patent was issued on February 3, 2009 to inventors Simon Howard Wigglesworth and Franz Roecker. It was then assigned to Smart Solar Limited, and Smart Living became the exclusive licensee.

Plaintiff alleges that the fountains and birdbaths sold by the Defendant are imitations of Smart Living’s products and that they infringe the ‘671 Patent. Defendant has a long history of being sued for violations of intellectual property rights, which Smart Living believes to show a willful infringement of these rights. Best Choice makes, offers for sale, and/or imports four birdbaths and fountains that Smart Living believes infringe on its intellectual property rights. Plaintiff sent a letter informing Defendant of the ‘671 Patent on February 22, 2017, without any response. During litigation in Illinois, the Parties engaged in mediation on September 21, 2018, but settlement was not reached.

The single claim of the Complaint is for Federal Patent Infringement pursuant to the Patent Act, 35 U.S.C. § 101 et seq. Plaintiff alleges that Defendant’s products directly infringe at least Claims 1-4, 6, 8, and 10-11 of the ‘671 Patent. Further, Defendant has indirectly infringed these same claims by actively inducing infringement after it had actual knowledge of the ‘671 Patent. Because of this knowledge of the ‘671 Patent and the continuing infringing acts, Plaintiff alleges Defendant’s infringement is willful and deliberate.

December 19, 2018

Indiana Patent Litigation: Indiana Based DriverReach, LLC Sued for Alleged Patent Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Tenstreet, LLC of Tulsa, Oklahoma, filed suit in the Southern District of Indiana alleging that Defendant, DriverReach, LLC of Indianapolis, Indiana, infringed its rights in United States Patent No. 8,145,575 (“the ‘575 patent”) for “Peer to Peer Sharing of Job Applicant Information”. Plaintiff is seeking judgment, preliminary and permanent injunction, damages, attorneys’ fees, and costs.

Tenstreet develops and sells software solutions for the transportation industry, including products for employment verification. The ‘575 patent was issued on March 27, 2012, and by assignment of all right, title, and interest, Tenstreet is the lawful owner. DriverReach makes, uses, sells, and offers for sale employment verification systems that allegedly infringe Tenstreet’s intellectual property rights. Further, Plaintiff claims that Defendant had a prior relationship with it that gave them knowledge of Tenstreet’s intellectual property rights.

Plaintiffs sent DriverReach a cease and desist letter identifying and providing a copy of the ‘575 patent on August 22, 2018. This letter identified the Defendant’s VOE Plus product as a potentially infringing product of the ‘575 patent. Tenstreet also delivered a preliminary claim chart showing each limitation of claim 1 of the ‘575 patent is met by Defendant’s VOE Plus product on October 22, 2018. As such, Tenstreet is suing DriverReach for infringement of the ‘575 patent.

December 18, 2018

Indiana Copyright Litigation: VideoIndiana Sued Regarding Alleged Unauthorized Use of Protest Photograph

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Christopher Sadowski of Hawthorne, New Jersey, filed suit in the Northern District of Indiana alleging that Defendant, VideoIndiana Inc. of Indianapolis, Indiana, infringed its rights by publicly displaying a copy written photograph owned and registered by Plaintiff. Plaintiff is seeking damages, statutory damages, costs, expenses, attorneys’ fees, and pre-judgment interest and any other relief the court deem proper.

The photograph at issue in this case was taken by Sadowski at a protest outside of NBC Studios where Donald Trump was opening Saturday Night Live (the “Photograph”). On November 7, 2015, after licensing the Photograph from Sadowski, the New York Post ran an article that featured the Photograph and identified Sadowski as the photographer. The Photograph is registered with the United States Copryight Office and has the registration number VA 1-989-742.

Sadowski alleges that Defendant ran an article discussing Trump’s Saturday Night Live appearance using the Photograph without licensing the Photograph from him, constituting copyright infringement. The Plaintiff also claims that Defendant copied the Photograph from the New York Post article and removed the Plaintiff’s identifying information so as to conceal their infringement of the copyrighted photograph. For this claim, Plaintiff alleges they are entitled to costs, attorneys’ fees, gains and profits obtained by Defendant for the infringing use, or statutory damages ranging from $2,500.00 up to $25,000.00 per violation pursuant to 17 U.S.C. § 1203(c)(3)

December 17, 2018

Indiana Patent Litigation: Indiana Based Company, Engineered by Schildmeier, Seeks Declaratory Judgment of Patent and Trade Dress Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Engineered by Schildmeier, LLC of Anderson, Indiana, filed suit in the Southern District of Indiana alleging that Defendants, Amazing Parts Warehouse (d/b/a several different names) of Lexington, Kentucky, and Wuhn Xuelang Auto Parts Co., Ltd. of China, infringed its rights in United States Patent No. D 816,584 (“the ‘584 Patent”) for a “Pair of Bed Rail Stake Pocket Covers”. Plaintiff is seeking judgment including damages, pre and post-judgment interests and costs.

Plaintiff asserts that Defendants have been offering to sell products on Amazon, eBay, and other various sites since February 2018. Amazon has taken down the advertisements when shown the ‘584 Patent. After a bit of time, Amazing Parts Warehouse then re-advertises the same product under a different dba. Amazon removes the new advertisements as they are reported and the cycle repeats almost monthly. The advertisements on eBay have not been removed as eBay refuses to act on validity of patents without Court direction. Plaintiff continues to send Cease and Desist letters to Defendants through Amazon and eBay as well as contact with their websites and the U.S. Postal Service.

Count I of the Complaint asserts federal patent infringement as the Plaintiff’s and Defendants’ bed rail stake pocket covers are as they claim, not only identical, but substantially the same leading to customer confusion. Count II claims trade dress infringement in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). The third count seeks declaratory judgment of both the design patent and trade dress validity. Next, Plaintiff seeks declaratory judgment of infringement and validity of trade dress. The final count asserts unfair competition under Indiana state law. Plaintiff claims that they have lost nearly $100,000 in lost profits since the Defendants began selling their counterfeit products in February and they continue to lose a minimum of $3,000 in profits per week.

December 13, 2018

Indiana Trademark Litigation: LeSEA, Inc. of Indiana Sues LeSEA Broadcasting Corporation of Colorado

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiffs, LeSEA, Inc., Family Broadcasting Corporation (“FBC”), and LeSEA Global Feed the Hungry, Inc., all three Indiana non-profit corporations, filed suit in the Northern District of Indiana alleging that Defendants, LeSEA Broadcasting Corporation (“LBC”), a Colorado non-profit Corporation, Lester Sumrall of Bristol, Indiana, Dr. John W. Swails III of Tulsa, Oklahoma, and Edward Wassmer, Vice President of LBC, infringed its rights in United States Registration No. 2,206,912 for “LESEA GLOBAL FEED THE HUNGRY” and United States Registration No. 2,122,820 for “LESEA GLOBAL”. Plaintiff is seeking damages, litigation expenses, reasonable attorneys’ fees and costs.

LeSEA, Inc. was founded in 1957 by Dr. Lester Frank Sumrall, now deceased, and has been a Christian, non-profit operating a variety of ministries including a bookstore and a Bible college ever since. LeSEA Global oversees food and disaster relief efforts for LeSEA, Inc. and has delivered more than $200 million of food and supplies to hungry people around the world through generous donations. FBC, formerly known as LeSEA Broadcasting, operates television and radio stations along with a 24-hour prayer line, and other religious based programs.

According to the Plaintiffs, Defendant Lester Sumrall (“Lester”) has a false belief that he is the “rightful spiritual and legal heir” of LeSEA and based upon this belief, he has continually acted in an abusive, harassing manner towards LeSEA and his family members involved in the company. As such, Lester has attempted to interfere with LeSEA’s relationships with its lenders and clients, sought injunctions against it, and filed improper leans against LeSEA. Lester issued multiple press releases, utilizing the LeSEA registered marks, spreading false claims about LeSEA stating that it was under investigation by The Office of the Indiana Attorney General and that it had been mismanaged, which could endanger the organization’s tax-exempt status. Lester has also tried to interfere with the administration of multiple family members’ estates and even a family member’s divorce due to his false beliefs.

December 5, 2018

Indiana Copyright Litigation: Dexas International, Ltd. Seeks Judgment in Cutting Board Case

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Dexas International, Ltd. of Coppell, Texas filed suit in the Southern District of Indiana alleging that Defendant, Menard, Inc. of Eau Claire, Wisconsin infringed its rights in United States Copyright Registration No. VA 2-118-094 (“Dexas Cutting Board Photo”). Plaintiff is seeking costs, reasonable attorneys’ fees, injunctive relief, and post judgment interest.

A Dexas employee created an original art piece entitled “Dexas Cutting Board Photo” within the scope of his employment in 2013 (the “Dexas Photo”). This art piece was for use in the product insert label for the Dexas cutting board. On April 4, 2018, Dexas applied for copyright registration for the Dexas Photo.

Dexas alleges that at least as of 2017, if not earlier, Menard began selling a “Collapsible Colander Cutting Board Set” with a label insert that includes the unauthorized copy of or derivative work based on the Dexas Photo. Further, Dexas believes Menard has manufactured, imported, published, sold, and/or distributed unauthorized copies of, or derivative works based upon the Dexas Photo and those were sold to consumers.

November 12, 2018

Indiana Trademark Litigation: Indiana University Sues Mid-America Publishing for Trademark Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, The Trustees of Indiana University of Bloomington, Indiana, filed suit in the Southern District of Indiana alleging that Defendants, Mid-America Publishing, Inc., of Spencer, Indiana and Terry R. Self of Spencer, Indiana, infringed its rights in United States Trademark Registration Numbers 1,713,815, 4,912,172, 1,705,521, 2,868,784, 1,728,274, and 4,925,141 (collectively the “IU Marks”). The IU Marks were all instituted at different times, the earliest of which were used as early as 1975, and have been continuously used to date. Indiana University advertises and promotes the IU Marks and has spent a substantial amount of money to make the IU Marks inherently distinctive and easily recognizable. Plaintiff is seeking injunctive relief, judgment including statutory damages, and attorneys’ fees.

As of the date of filing, Mid-America Publishing, Inc. (“Mid-America”) was and had been administratively dissolved since July 15, 2010, according to the Indiana Secretary of State. Mr. Self is the sole officer and owner of Mid-America and as such directs all acts of Mid-America including producing, promoting, and selling posters, calendars, cards, and other printed materials. Previously, Mid-America began selling a poster of the Indiana University (“IU”) Men’s Basketball team with a listing of the games for their upcoming season. These posters included one or more trademarks owned by IU. Mid-America would customize these posters for local companies for them to pass out to as free promotional items.

Up until April 2012, there was an informal understanding between IU and Mid-America regarding the posters and the use of their trademarks. The parties’ informal understanding was formalized in April of 2012 when they entered into a multi-year Marketing and Sponsorship Agreement. The use of the trademarks was non-exclusive and limited, and Mid-America agreed not to use any student-athlete’s name or likeness without advance written approval from IU’s Compliance Officer. Mid-America produced and sold the posters in accordance with this Agreement up until May 2, 2016 when IU informed Mid-America that it would not continue licensing to Mid-America. The term of the Agreement was extended by one year in which Mid-America was allowed to produce the poster for the 2016-2017 season, after it received approval for the artwork from IU.

While IU photographs its student-athletes for promoting its athletic programs and events, it has a policy to prohibit any profits being made from the use of a student-athlete’s name, image, or likeness by IU or any third party. IU filed an expedited application with the United States Copyright Office to register their 2017-2018 IU Student-Athlete Photographs on October 3, 2018. The application has been registered as VA0002121460, but a Certificate of Registration had not been received by the Plaintiff as of the filing of the Complaint.

On October 9, 2017, Mr. Self on behalf of Mid-America, submitted an Application for License Agreement to IU to use the IU Marks in producing the 2017-2018 Mid-America IU Basketball Poster. The Application did not request to use any student-athlete names or likenesses, and the Trademark License Agreement provided by IU for consideration did not contain any license for the same. Mid-America executed the Trademark License Agreement on October 28, 2017. IU did not execute the agreement as it learned that Mid-America was already selling unapproved 2017-2018 IU Basketball Posters including the IU Marks, IU Student-Athlete Photographs, and the names of the student-athletes. After numerous attempts to contact Mid-America to resolve the situation, IU contacted the printers that Mid-America fraudulently induced to print the unapproved posters. The printers ceased printing the posters, agreed to destroy any they had remaining in their possession, and gave a quantity for how many they had already printed and delivered to Mid-America.

Despite all of the communication that was ignored by Mid-America for the 2017-2018 IU Basketball Poster production, Mid-America began producing and offering for sale its 2018-2019 version on August 29, 2018. Further, they are producing a Hoops Hysteria Handbook, which includes the schedule of each Division 1 college in Indiana, including IU’s. The Handbook does contain IU Student-Athlete Photographs and is offered for “free” with each Mid-America IU Basketball Poster, but advertises may pay for their advertisement to be printed on the back for $0.20 per booklet. As such, IU is claiming, trademark infringement and counterfeiting, false and deceptive labeling, unfair competition, and copyright infringement.

October 15, 2018

Indiana Patent Litigation: Eli Lilly and Company Seeking Declaratory Judgment in Patent Ownership Case

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Eli Lilly and Company of Indianapolis, Indiana, filed suit in the Southern District of Indiana for a declaratory judgment against Defendant, Adocia S.A. of Lyon, France, who is claiming inventorship and ownership rights in Lilly’s United States Patent No. 9,901,623 B2 (“the ‘623 Patent”) for “Rapid-Acting Insulin Compositions”, and United States Patent No. 9,993,555 B2 (“the ‘555 Patent”) for “Rapid-Acting Insulin Compositions”. Plaintiff is seeking declaratory judgment, attorneys’ fees and costs, and further relief the Court determines to be just and proper.

Lilly began its research that led to the ‘623 and ‘555 Patents at least as early as 2011. Right around that same time, Lilly and Adocia began negotiating an agreement to develop an ultra-rapid insulin “URI” formulation using Adocia’s BioChaperone® technology. Adocia and Lilly entered into a collaborative research and license agreement on December 13, 2011. The two companies signed a confidentiality agreement on November 21, 2012. By July 2013, the original agreement was terminated.

The Parties entered into a second confidentiality agreement on December 16, 2013 and a second collaborative research and license agreement on December 18, 2014 using different BioChaperone® molecules than the first agreement. The second research collaborative continued until January 2017. While Lilly was a part of the research collaborative, they were also running a separate internal program to develop a URI with specific concentrations of citrate for a more rapid time action profile and specific excipients to maintain the stability for the composition. Unlike this research, the collaborative research focused only on URI products containing BioChaperone® molecules. The separate internal research led to the ‘623 Patent issuing on February 27, 2018 and the ‘555 Patent issuing on June 12, 2018.