New Litigation

December 20, 2017

Indiana Patent Litigation: Purdue Trustees Sue Japanese Corporation Over Blood Pressure Monitor Patent

Lafayette, Indiana – Attorneys for Plaintiff, The Trustees of Purdue University of Lafayette, Indiana filed suit in the Northern District of Indiana alleging that Defendants, Omron Corporation and Omron Healthcare Company, Limited of Japan infringed its rights in United States Patent No. 7,014,611 B1 (“the 611 Patent”) for “Oscillometric Noninvasive Blood Pressure Monitor”. Plaintiff is seeking judgment, compensatory damages, supplemental damages and interest, and such other and further relief and all remedies available at law.

The ‘611 patent describes a small blood pressure monitor to be worn around one’s wrist or other limb. The patented item includes the monitor and a pump to inflate the cuff, among other details. Plaintiff alleges that Defendants have been infringing the patent by offering for sale numerous infringing blood pressure monitors that Plaintiff alleges “embody the apparatuses and practice the methods covered by one or more claims of the ’611 patent.”

November 28, 2017

Indiana Trade Dress Infringement: Owner of Shoe Carnival Trademark Sues over Trade Dress and Trademarks

By Overhauser Law Offices, LLC

Evansville, Indiana – Attorneys for Plaintiff, SCLC, Inc. of Evansville, Indiana filed suit in the Southern District of Indiana alleging that Defendants, Marie Kettering of Trenton, New Jersey, and Lanny Tyndall of Enfield, Gansu, Canada, infringed the rights of SCLC. Plaintiff is seeking a nationwide injunction, compensatory damages, and attorneys’ fees.

Plaintiff owns the rights to the “Shoe Carnival” trademark, and owns and operates shoecarnival.com. The complaint alleges that the Defendants operate shoe sale websites that infringe upon the trade dress of the Shoe Carnival website, and infringe upon the Shoe Carnival trademark by displaying the registered mark on the websites. Specifically, the Defendants’ websites mimic the “look and feel” of Shoe Carnival’s website, including the layouts, placement of photos, borders, frames, colors, and overall impression. Further, Plaintiff alleges that the offending websites used the “Shoe Carnival” registered mark without permission in an effort to generate sales, which Plaintiff claims has caused consumer confusion.

Practice Tip: Although the Plaintiff alleges personal jurisdiction over the Defendants in the complaint, they do not allege any specific facts, such as infringing sales, which occurred in Indiana. This may cause issues for the Plaintiff in trying to secure personal jurisdiction over the Defendant. In a similar case in 2014, the United States Court of Appeals for the Seventh Circuit ruled that an out-of-state business accused of trademark infringement did not have sufficient contacts, arising out of the accused activity, with Indiana to subject it to personal jurisdiction in the state.

November 27, 2017

New York Trademark Litigation: Indiana-Based AM General Sues Activision over Call of Duty Videogame

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, AM General LLC, of South Bend, Indiana filed suit in the Southern District of Indiana alleging that Defendants, Activision Blizzard, Inc., and Activision Publishing, Inc., both of Santa Monica, California and Major League Gaming Corp., of New York, New York; infringed its rights for the Trademark Registrations of HUMVEE and HMMWV and the trade dress of its HUMVEE brand vehicles. Plaintiff is seeking compensatory damages, punitive damages, corrective advertising, attorneys’ fees and costs, and prejudgment and post judgment interest.

Plaintiff alleges that Defendant’s series of Call of Duty videogames have consistently infringed by incorporating and allowing players to control vehicles in-game that, allegedly, infringe on Plaintiff’s real-life protected marks. In the complaint, Plaintiff points to various in-game levels that require the player to control a vehicle that allegedly copies the registered trade dress elements, and other moments in the game where the player sees or interacts with vehicles resembling Humvees. Plaintiff also notes in-game dialogue and marks written on the vehicles that mention “Humvee” specifically.

November 10, 2017

Indiana Patent Litigation: Thor Industries Sues The RV Factory Over RV Patents

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorney for Plaintiff, Thor Industries, Inc. of Elkhart, Indiana filed suit in the Northern District of Indiana alleging that Defendant, The RV Factory, LLC, also of Elkhart, Indiana infringed on the U.S. Patent Nos. 7,575,251, titled Travel Trailer Having Improved Turning Radius (the ‘251 patent), and 7,938,427, titled Recreational Vehicle Chassis (the ‘427 patent). Plaintiff is seeking judgment in favor of Thor Industries, Inc., damages, and all infringing products be recalled.

Plaintiff is the owner of the patents, which deal with the design and functionality of travel trailers. Specifically, the ‘251 patent deals with an RV chassis having certain types of angled front corners, as opposed to squared corners. The ‘427 patent covers a type of chassis with a curved or bowed front end, instead of a flat or straight front.

According to the complaint, Defendant has been manufacturing and selling RVs with chasses containing the patented design elements. Plaintiff alleges that Defendant’s RV model “Luxe Luxury Fifth Wheel” infringes on the ‘251 patent. Plaintiff also alleges that Defendant’s “Luxe Elite,” “Luxe Gold,” and “Weekend Warrior” models infringe the ‘427 patent by using a curved forward surface.

Plaintiff also claims that Defendant has induced and contributed to infringement by third parties who have bought and used the allegedly infringing RVs.

November 8, 2017

Indiana Patent Litigation: Klipsch Sues Chinese Defendant Over Allegedly Infringing Earphones

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Klipsch Group, Inc. of Indianapolis, Indiana filed suit in the Southern District of Indiana alleging that Defendant, Shenzhen Paiaudio Electronics Co., Ltd of Guangdong, China infringed on the U.S. Patent No. D603,844 (the ‘844 patent), titled “Headphone,” and violated Klipsch headphones’ trade dress. Plaintiff is seeking judgment, a permanent injunction, lost profits, damages, pre-judgement and post-judgment interest, attorneys’ fees, and all relief just and proper.

Plaintiff Klipsch is an Indianapolis-based audio company that produces headphones, earphones, and speakers for home and commercial use. China-based Defendant Paiaudio specializes in producing high-end earphones. The subject of this litigation is a type of small earphone patented by Klipsch, specifically their “X12i” model. Plaintiff alleges that Defendant’s “π 3.14 Audio” model is virtually identical to the X12i, infringes on the patent, and violates the Lanham Act via trade dress confusion.

November 7, 2017

Indiana Patent Litigation: Indianapolis-Based Home Healthcare Company Sues Former Employee for Ownership of Patent

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Home Care Providers, Inc. and Dr. Dev A. Brar, of Indianapolis, Indiana filed suit in the Southern District of Indiana against Defendant, Shawn R. Bashore, of Carmel, Indiana. This suit was filed for inventorship of the United States Patent No. 9,668,328 (“the ‘328 Patent”), Night-Light and Alert System, for constructive fraud, and conversion of the patent. Plaintiff is seeking declaratory judgment, lost profits, and reasonable costs and attorneys’ fees.

The ‘328 Patent is for a system including a mat and a wirelessly-connected light, the purpose of which is to allow an individual to rise from bed and turn on the lights by stepping on the mat.

According to the complaint, Plaintiff alleges that Defendant, while overseeing development of the invention, represented himself as a co-inventor on the patent application, which violated provisions of the employment agreement requiring that all material created would belong to Plaintiff. Further, according to the complaint, Defendant has attempted to profit from licensing the invention.

October 30, 2017

Indiana Patent Litigation: Carmel Tech Company Binatone USA Sued Over Allegedly Infringing Baby Monitors

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Uniloc, has targeted Binatone of Carmel, Indiana in its latest patent infringement suit.

Uniloc has been called a “Patent Troll in Chief” by engadget.com, and justia.com reports that it is a party to at least 343 patent cases. In just October of 2017, Uniloc has filed 17 patent infringement lawsuits. While most of Uniloc’s lawsuits have been filed in the patent-infringement-plaintiff-friendly State of Texas, the US Supreme Court’s recent decision in the TC Heartland case limits the venues for patent infringement cases. This likely forced Uniloc to file this suit in Indiana where Binatone is located.

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Uniloc USA, Inc. of Plano Texas, and Uniloc Luxembourg S.A filed their suit in the Southern District of Indiana alleging that Defendant, Exclusive Group LLC d/b/a/ Binatone North America, of Carmel, Indiana infringed on the U.S. Patent No. 6,216,158, System and Method Using a Palm Sized Computer to Control Network Devices (the ‘158 patent). Plaintiff is seeking declaratory judgment of infringement, damages suffered as a result of the infringement, and attorneys’ fees.

Plaintiffs Uniloc USA, as exclusive licensee of the ‘158 patent, and Uniloc Luxembourg, as owner and assignee of the ‘158 patent, filed suit alleging that a wide range of Binatone’s wireless products, such as wireless baby monitors, infringe the patent. Specifically, plaintiffs allege that Motorola’s products infringe the patent by performing the same functions that are covered under the patent; specifically, remotely controlling a wireless device over a wireless connection, using wireless commands to control the other device, and wireless control of the second device by the first device.

Plaintiffs also allege in their complaint that the Defendant indirectly infringes the patent by providing instructional videos, brochures, etc. for each product, explaining to customers how to operate the products.

October 23, 2017

Indiana Patent Litigation: Infringement of Patent for Furnace Cooling Pipes Alleged Against Foreign Defendants

By Overhauser Law Offices, LLC

Indiana Patent Litigation: Infringement of Patent for Furnace Cooling Pipes Alleged Against Foreign Defendants

Indianapolis, Indiana – Attorneys for Plaintiff, Amerifab, Inc. of Indianapolis, Indiana filed suit in the Southern District of Indiana alleging that Defendants, MELTER, S.A. a Mexican corporation; DE C.V., GERDAU AMERISTEEL CORPORATION, a Florida corporation; GERDAU S.A., a Brazilian corporation; and RAVAGNAN S.P.A., an Italian corporation infringed its rights in United States Patent No. 6,330,269 (“the ‘269 Registration”) for “Heat Exchange Pipe with Extruded Fins”. Plaintiff is seeking injunctive relief, judgment including statutory damages and attorneys’ fees.

According to the complaint, Plaintiff Amerifab, Inc. manufactures equipment to be used in a variety of industrial machinery, including heat transfer equipment. Defendant Melter manufactures heat transfer equipment, pressure vessels, and markets in North America. Defendant Gerdau Ameristeel recycles scrap steel into products for the construction, industrial, agricultural, and automotive industries in North America. Gerdau Ameristeel is a wholly owned subsidiary of Defendant Gerdau, which operates subsidiaries primarily throughout South America. Defendant Ravagnan allegedly operates primarily out of Italy and South America, and specializes in design and construction of industrial plant and pressure vessels. Defendant Ravagnan is alleged the majority shareholder of Defendant Melter, and the two companies share facilities and employees.

April 13, 2017

Indiana Trademark Litigation: Indianapolis Hair Accessory Merchant Sued for Trademark Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Her Imports f/k/a EZJR, Inc. sued in the Southern District of Indiana alleging trademark infringement, trademark dilution and trade dress infringement. The lawsuit names Her Hair, Inc., an Indianapolis hair-extension merchant, as Defendant.

Plaintiff markets and sells wigs, hairpieces and hair accessories. It claims ownership of two trademarks, U.S. Trademark Registration Nos. 4,631,694 for the word mark “HER IMPORTS” and 5,048,646 for “HER IMPORTS” and design. Both trademarks have been registered with the U.S. Patent and Trademark Office.

Plaintiff contends that Defendant designed and used a similar mark, asserting that it was intentionally crafted “for the sole purposes of imitating Plaintiff’s Trademark, causing actual confusion among the general public, and attempting to pass itself off as being associated with the Her Imports brand.” Plaintiff further states that Defendant’s trademark has caused actual customer confusion. Defendant’s mark was registered by the U.S. Patent and Trademark Office under Reg. No. 5,144,514.

Plaintiff further accuses Defendant of copying its “unique store interior trade dress,” comprising black and white Damask wallpaper along with red trim, in Defendant’s store.

In this Indiana lawsuit, filed by trademark attorneys for Plaintiff, the following claims are made:

Count I: Mark Cancellation 15 U.S.C. § 1064
Count II: Trade Dress Infringement 15 U.S.C. § 1125(a) (as to the Store Interior)
Count III: Dilution by Blurring — 15 U.S.C. § 1125(c) (as to Plaintiff’s Trademark)
Count IV: Dilution by Blurring — 15 U.S.C. § 1125(c) (as to Plaintiff’s Store Interior Trade Dress)
Count IV: [sic] Recovery of Profits, Damages, Costs, and Attorneys’ Fees Pursuant to 15 U.S.C. § 1117(a)
Count VI: Destruction of Infringing Articles 15 U.S.C. § 1118
Count VII: Injunctive Relief 15 U.S.C. § 1125(c)(1)

Plaintiff seeks, inter alia, injunctive relief, the cancellation of Defendant’s trademark, damages, attorneys’ fees and costs.

April 12, 2017

Indiana Patent Litigation: Lilly Again in Federal Court to Defend Alimta Patent

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Eli Lilly and Company of Indianapolis, Indiana filed a federal lawsuit in the Southern District of Indiana alleging patent infringement. Defendants are Actavis LLC of Parsippany, New Jersey; Teva Pharmaceuticals USA, Inc. of North Wales, Pennsylvania; and Teva Pharmaceutical Industries, Ltd. of Petach Tikva, Israel.

At issue is a patent for Antifolate Combination Therapies, Patent No. 7,772,209 (“the ‘209 patent”) which has been issued by the U.S. Patent and Trademark Office. This patent covers intellectual property embodied in Alimta®, a drug therapy used for the treatment of various types of cancer.

In a complaint filed by an Indiana patent litigator, Lilly states that Defendants filed an Abbreviated New Drug Application with the U.S. Food and Drug Administration seeking approval to manufacture and sell generic equivalents of ALIMTA® prior to the expiration of the ‘209 patent. It asserts that this filing constitutes and/or will constitute infringement of the ‘209 patent, active inducement of infringement of the ‘209 patent, and contribution to the infringement by others of the ‘209 patent.

Lilly seeks, inter alia, injunctive relief, costs and attorneys’ fees.