New Litigation

April 10, 2017

Indiana Trademark Litigation: IHOP and Applebee’s Sued on Allegations of Infringement of Splenda Trademarks

Indianapolis, Indiana – Heartland Consumer Products LLC and TC Heartland LLC, of Carmel, Indiana filed suit in the Southern District of Indiana alleging trademark and trade dress infringement, dilution and unfair competition under the Lanham Act, the Indiana State Trademark Act, and the common law of the State of Indiana.

At issue are trademarks covering Splenda®-brand sweetener, which has been approved for use in over 80 countries and used in more than 4000 products globally. In this Indiana litigation, Heartland claims that some or all of the following trademarks have been infringed: 1544079, 3346910; 4172135, 4165028, 4301712, 4172136, 4165029,4122311, 4187229, 4202774, 4230392, 4238101, 4106164, 4664653, and 4744600. These trademarks have been registered with the U.S. Patent and Trademark Office. In addition, Heartland claims ownership of the following pending applications for United States Trademark Registration Serial Nos. 86865337, 87012521, and 87010504.

Defendants in the lawsuit are DineEquity, Inc., Applebee’s Franchisor LLC, Applebee’s Restaurants LLC, Applebee’s Services, Inc., International House of Pancakes, LLC f/k/a International House of Pancakes, Inc., IHOP Franchising LLC, IHOP Franchise Company, LLC and IHOP Franchisor LLC. Plaintiff asserts that all Defendants have a principal place of business in Glendale, California. They are accused of leading customers to believe that they offer Splenda-brand sweetener when they do not. Plaintiff contends that instead of American-made Splenda, the product offered to the customers is, in fact, “a lower-quality product of China.”

Indiana trademark attorneys for Heartland sued in federal court. They assert:

Count I: Common Law Trademark Infringement and Trademark Infringement under 15 U.S.C. § 1114(1)
Count II: False Designation of Origin under 15 U.S.C. § 1125(a)
Count III: Unfair Competition
Count IV: Trademark Dilution under 15 U.S.C. § 1125(c)
Count V: Trademark Dilution under I.C. 24-2-1-13.5
Count VII [sic]: Preliminary and Permanent Injunctive Relief
Count VIII: Corrective Advertising Damages

Plaintiff asks the court for injunctive relief, costs and attorneys’ fees. They also seek various types of damages, including actual, statutory, punitive and treble damages.

April 7, 2017

Indiana Patent Litigation: Infringement of Patents for Rotating Curling Iron Alleged in New Lawsuit

By Overhauser Law Offices, LLC

South Bend, Indiana – The Beachwaver Co. of Libertyville, Illinois filed a new lawsuit in the Northern District of Indiana alleging infringement of patents covering its rotating curling iron. Beachwaver seeks damages as well as injunctive and other relief under 35 U.S.C. 281, et seq.

Defendants in this newest lawsuit are Xtava, LLC of Wilmington, Delaware, C&A IP Holdings, LLC of Dover, Delaware, and C+A Global of Edison, New Jersey. They are accused of infringing two patents: U.S. Patent Nos. 9,398,796 (“the ‘796 patent”) and 9,504,301 (“the ‘301 patent”). These patents, both titled “Hair Styling Device,” have been issued by the U.S. Patent and Trademark Office.

Plaintiff has filed two similar Indiana lawsuits asserting infringement in recent months, one in October and another in December. This most recent litigation, filed by Indiana patent lawyers for Beachwaver, lists two counts:

Count 1: Infringement of the ‘796 Patent
Count 2: Direct Infringement of the ‘301 Patent

Plaintiff seeks injunctive relief, costs, attorneys’ fees and damages, including treble damages.

April 3, 2017

Indiana Patent Litigation: Lilly Alleges Patent Infringement, Sues Generic Manufacturer

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Eli Lilly and Company of Indianapolis, Indiana filed a patent infringement lawsuit in the Southern District of Indiana asserting infringement of U.S. Patent No. 7,772,209 (‘209 Patent). Defendant is Amneal Pharmaceuticals LLC of Bridgewater, New Jersey.

Lilly states that Amneal filed an Abbreviated New Drug Application with the U.S. Food and Drug Administration seeking approval to manufacture and sell two “Pemetrexed for Injection” products prior to the expiration of the ‘209 patent. Lilly contends that the ‘209 patent, which was issued by the U.S. Patent and Trademark Office, protects the Pemetrexed products.

In this patent litigation, filed by attorneys for Lilly, a single count is listed, “Infringement of U.S. Patent No. 7,772,209.” Lilly seeks relief from the Indiana court including a judgment of infringement, injunctive relief, costs and attorneys’ fees.

Practice Tip: Lilly has had some success protecting its ‘209 patent, which relates to the cancer drug Alimta®, against generic manufacturers. See, e.g., U.S. Court of Appeals Rules In Lilly’s Favor on Alimta Vitamin Regimen Patent.

March 31, 2017

Indiana Patent Litigation: Indiana Plaintiff Seeks Judgment of Noninfringement

By Overhauser Law Offices, LLC

South Bend, Indiana – Stump Printing Co., Inc., also known as Shindigz, of South Whitley, Indiana filed a patent lawsuit in the Northern District of Indiana seeking declaratory judgment of noninfringement.

Defendant in the litigation is Electronic Communication Technologies, LLC (“ECT”) of Boynton Beach, Florida, which claims to be the owner by assignment of U.S. Patent Nos. 9,373,261; 7,876,239 and 7,319,414. These patents were issued by the U.S. Patent and Trademark Office.

In February 2017, ECT sent a letter to Shindigz claiming that Shindigz’s “order confirmation” and “shipping confirmation” systems “infringe claims of the ECT Patents.” The letter demanded that Shindigz pay a fee of $30,000 to license the use of those systems.

In response, Indiana patent lawyers for plaintiff filed this lawsuit asking the court to find the ECT patents ineligible for patenting, not infringed, and invalid. The complaint accuses ECT of being a “patent troll,” stating that the company makes a practice of “calibrating the amount of [its] settlement demands to be lower than the perceived cost of litigation, to try to ensure that practicing entities settle rather than pursue challenges to the eligibility of validity of the patents through dispositive motions or trial.” The complaint also asserts that ECT and predecessor in interest Eclipse IP have filed approximately 250 patent lawsuits since 2011.

The lawsuit seeks injunctive relief, costs and attorneys’ fees as well as two counts of declaratory judgment:

Count I: Declaratory Judgment of Noninfringement

Count II: Declaratory Judgment of Invalidity

March 27, 2017

Indiana Patent Litigation: Parties Return to Court Over Allegations of Ongoing Infringement of Patent for Foldable Tricycle

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Newton Enterprises Ltd. of Kowloon, Hong Kong filed a lawsuit in the Southern District of Indiana against Defendant Singleton Trading Inc. d/b/a Elama d/b/a Blue Spotlight of Brooklyn, New York asserting patent infringement and breach of contract.

These claims follow earlier litigation against Singleton initiated by Newton in June 2016. That lawsuit, also filed in Indiana, alleged that Singleton Trading had infringed and/or induced others to infringe U.S. Patent No. 7,568,720 (the “‘720 patent”) for a “Wheeled Vehicle” with its “Zoom Bike” product.

Newton states that the 2016 action was dismissed without prejudice pursuant to a settlement agreement under which Singleton agreed to compensate Newton for its claims of past infringement and “permanently cease making, using, offering to sell, or selling the Zoom Bike” or any other product that infringed the ‘720 patent. Under the agreement, Singleton was granted a limited license to sell its remaining inventory.

Newton now returns to the court alleging that Singleton has breached the settlement agreement by selling units of the Zoom Bike exceeding the scope of the limited license. Newton further contends that this conduct constitutes willful infringement of the ‘720 patent.

This second complaint, filed by an Indiana patent lawyer, lists two counts:

Count I: Infringement of ‘720 Patent
Count II: Breach of Settlement Agreement

Newton asks the court for a declaration of willful patent infringement; damages, including a trebling of those damages; costs and attorneys’ fees; and injunctive relief.

March 24, 2017

Indiana Trademark Litigation: Bosch Accuses Indiana Man of Counterfeiting

By Overhauser Law Offices, LLC

Hammond, Indiana – Robert Bosch, GmbH of Stuttgart, Germany and Robert Bosch, LLC of Broadview, Illinois sued in the Northern District of Indiana alleging trademark counterfeiting, trademark infringement, false advertising and unfair competition.

At issue in this Indiana lawsuit are the following trademarks, which have been registered with the U.S. Patent and Trademark Office:

MARK

REG. NO

REG. DATE

BOSCH

1,637,401

Mar. 12, 1991

633,563

Aug. 28, 1956

Defendants in the litigation are Joshua Rayner of Portage, Indiana as well as ten unnamed “Doe” Defendants. They are accused of “advertising, offering for sale and sale of counterfeit automotive parts” that bear unauthorized copies of Bosch trademarks.
Indiana trademark attorneys for Plaintiffs list the following claims in this federal lawsuit:

Count I: Trademark Counterfeiting in Violation of Sections 32 and 34(d)(1)(B) of the Lanham Act
Count II: Trademark Infringement in Violation of Section 32 of the Lanham Act
Count III: Unfair Competition in Violation of Section 43(a) of the Lanham Act
Count IV: False Advertising in Violation of Section 43(a) of the Lanham Act

Plaintiffs seek injunctive and monetary relief, including statutory damages, treble damages and attorneys’ fees.

March 17, 2017

Indiana Copyright Litigation: Nine New Doe Defendants Accused of Infringing Copyrighted Movie

By Overhauser Law Offices, LLC

Hammond, Indiana – ME2 Productions Inc. of Carson City, Nevada filed an additional lawsuit in the Northern District of Indiana alleging copyright infringement of the action thriller Mechanic: Resurrection.

The lawsuit lists nine anonymous “Doe” Defendants, accusing them of infringing the copyright of the movie, which has been registered with the U.S. Copyright Office under Registration No. PA-1-998-057. Plaintiff contends that the Doe Defendants illegally distributed a “screener copy” of the film via BitTorrent, a file-sharing protocol. Plaintiff further asserted that this was done “in a collective and interdependent manner with other Defendants via the Internet for the unlawful purpose of reproducing, exchanging, and distributing copyrighted material.”

The movie, which is the sequel to the 2011 action film Resurrection, stars Jason Statham, Jessica Alba and Tommy Lee Jones. Plaintiff contends that the Doe Defendants are Indiana residents, stating that it determined through the use of geolocation technology that each had an Indiana Internet Protocol address.

This litigation, filed by a copyright lawyer for ME2 Productions, lists a single count – copyright infringement – and asks the court to award injunctive relief, damages, costs and attorneys’ fees.

March 13, 2017

Indiana Trademark Litigation: Indiana Winemaker Sues for Right to Continue Using “Generations” Trademark

By Overhauser Law Offices, LLC

New Albany, Indiana – Huber Orchards, Inc. of Borden, Indiana filed a trademark lawsuit in the Southern District of Indiana. Defendants in the litigation are C. Mondavi & Family (“CMF”) and C. Mondavi & Sons, Inc., both of St. Helena, California. Huber filed the lawsuit seeking a declaratory judgment that its mark “Huber Winery Generations Indiana Red Wine” does not infringe Defendants’ trademark.

Both Plaintiff and Defendants produce and offer wine products. In February 2017, CMF sent a cease and desist letter to the president of Huber stating that CMF owns a federally registered trademark for GENERATIONS for wine. This trademark has been registered by the U.S. Patent and Trademark Office as U.S. Reg. No. 2,236,517.

In the letter, sent to Huber by a trademark lawyer for Defendants, CMF asserts that Huber’s use of the word “Generations” in conjunction with the sale of wine violates the Lanham Act by infringing and diluting CMF’s trademark. The letter demanded that Huber cease all use of the trademark GENERATIONS in connection with its Huber Winery Generation Indiana Red blend wines. CMF further contended that Huber is liable for injunctive relief, damages, possible treble damages and attorneys’ fees.

Huber contends that it began selling its “Huber Winery Generations Indiana Red Wine” line locally in 1997, two years before CMF registered its trademark, and that it began selling the wine on the internet in 2004. It further asserts that its use of its “Huber Winery Generations” common law trademark does not infringe any trademark in which CMF has right because there is no likelihood of confusion. It asks the court to declare that Huber’s use of “Generations” and “Huber Winery Generations” do not infringe CMF’s GENERATIONS trademark.

March 9, 2017

Indiana Trademark Litigation: Trademark Dispute over “Final Four” and “March Madness” Heads to Federal Court

By Overhauser Law Offices, LLC

Indianapolis, Indiana – National Collegiate Athletic Association (“NCAA”) of Indianapolis, Indiana sued in the Southern District of Indiana alleging trademark infringement and unfair competition.

NCAA’s trademarks, which have been registered with the U.S. Patent and Trademark office (“USPTO”), pertain to the following uses of FINAL FOUR and MARCH MADNESS:

MARK	GOODS/SERVICES	REG NO. & DATE
FINAL FOUR	Association services, namely, conducting annual basketball tournaments at the college level	1,488,836; May 17, 1988
FINAL FOUR	Promoting the goods and services of others by allowing sponsors to affiliate their goods and services with collegiate championship tournaments	2,377,720; Aug. 15, 2000
FINAL FOUR	Printed matter, namely, guides in the field of sports; Luggage, namely, portfolios, backpacks, duffle bags, rolling luggage, garment bags, briefcases, athletic bags and tote bags; and Entertainment services, Namely, providing information in the field of college sports via the Internet	2,964,266; June 28, 2006
MARCH MADNESS	Entertainment services, namely, presentation of athletic and entertainment personalities in a panel forum	1,571,340; Dec. 12, 1989
MARCH MADNESS	Entertainment in the nature of basketball tournaments between college teams	2,485,443; Sept. 4, 2001
MARCH MADNESS	Telecommunications services; namely the transmission of voice, data, images, audio, video and information via local and long distance telephone, satellite and global computer networks; leasing telecommunications equipment, components, systems and supplies; electronic mail services; telephone voice messaging services; providing multiple-user access to global computer networks to transmit, receive and otherwise access and use information of general interest to consumers; web casting of athletic games, tournaments, exhibitions, and events via the Internet	3,025,527; Dec. 13, 2005

Defendants in this Indiana trademark lawsuit are Kizzang LLC of Las Vegas, Nevada and Robert Alexander, the founder and owner of the business. They are in the business of providing nationwide Internet-based promotions that award prizes for predicting the results of sporting events. Plaintiff states that they have branded their NCAA-related services using the mark FINAL 3.

Plaintiff further asserts that Defendants had planned to adopt APRIL MADNESS for the same services as FINAL 3, but that they delayed doing so upon learning that NCAA objected to their use of FINAL 3. Kizzang has applied for federal trademark registrations for both marks with the USPTO.

Indiana trademark attorneys for Plaintiff contend that Defendants adopted both names because of their similarity to the marks used by NCAA and that Defendants did so with the intention of exploiting the goodwill associated with FINAL FOUR and MARCH MADNESS. In this lawsuit, filed in federal court, the following claims are made:

Trademark Infringement Under 15 U.S.C. § 1114
Trademark Infringement Under 15 U.S.C. § 1125(a)
Trademark Dilution Under 15 U.S.C. § 1125
Common Law Unfair Competition

Plaintiff asks for various remedies from the court, including a judgment of willful and intentional violations of 15 U.S.C. §§ 1114, 1125 and Indiana common law; injunctive relief including restraining Defendants from further use of FINAL 3 and APRIL MADNESS as well as an order that the USPTO deny registration for the marks; damages, including treble damages; and attorneys’ fees.

March 6, 2017

Indiana Intellectual Property Litigation: Joe Hand Promotions Sues Alleging Unlawful Interception of Championship Fight

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – Joe Hand Promotions, Inc. of Feasterville, Pennsylvania filed an intellectual property lawsuit in the Northern District of Indiana.

One business entity was sued in this Indiana litigation, Gum Dinger Slingers, LLC d/b/a Foxhole Pub at Norwood Golf Course of Warren, Indiana. Also listed as Defendants were the following Indiana residents: Lee Cutting, Stephanie Cutting, Kevin Killen, Amanda Killen and Jason Kennedy.

Defendants are accused of unlawfully intercepting and broadcasting an “Ultimate Fighting Championship®” program that was broadcast on March 14, 2015. The program, Ultimate Fighting Championship® 185: Pettis v. Dos Anjos, was broadcast exclusively on pay-per-view.

Joe Hand states that it held the exclusive commercial distribution rights to the broadcast of this program and that the business known as Foxhole Pub at Norwood Golf Course displayed the program in a commercial establishment without having obtained the proper license. In addition to suing the limited-liability company that operates the Foxhole Pub, an Indiana intellectual property lawyer for Joe Hand has sued five individuals, stating that each was an officer, director, shareholder, owner, member and/or principal of the entity owning and operating the Foxhole Pub; that each individual had a right and ability to supervise the activities of the pub; and that each had an obvious and direct financial interest in the activities of the pub.

Plaintiff asserts that Defendants’ conduct violated 47 U.S.C. § 605 or, in the alternative, violated 47 U.S.C. § 553. It asks the court for statutory damages, interest, costs and attorneys’ fees.