New Litigation

February 9, 2016

Indiana Patent Litigation: Eli Lilly Asks Indiana Federal Court to Adjudicate Dispute Regarding Patented Pharmaceutical

Indianapolis, Indiana – Indiana patent attorneys for Plaintiff Eli Lilly and Company of Indianapolis, Indiana (“Lilly”) filed an intellectual property lawsuit in the Southern District of Indiana asserting infringement of U.S. Patent No. 7,772,209 (“the ‘209 patent”), which was filed with the U.S. Patent and Trademark Office.

This patent infringement lawsuit asserts unlawful behavior by two Defendants. Specifically, the complaint states that Dr. Reddy’s Laboratories, Inc. of Princeton, New Jersey is acting on behalf of Dr. Reddy’s Laboratories, Ltd. of Hyderabad, India in seeking approval to manufacture and sell a generic version of Lilly’s ALIMTA®, a chemotherapy agent used for the treatment of various types of cancer. Lilly further contends that the two Defendants are agents and/or alter-egos of one another.

Lilly states that unless Defendants are “enjoined from infringing the ‘209 patent, actively inducing infringement of the ‘209 patent, and contributing to the infringement by others of the ‘209 patent, Lilly will suffer irreparable injury.”

This lawsuit, filed by Indiana patent lawyers for Lilly, lists a single count: Infringement of U.S. Patent No. 7,772,209. Lilly seeks a declaratory judgment, equitable relief, damages, costs and attorneys’ fees.

February 5, 2016

Indiana Copyright Litigation: Design Basics Sues Builders and Others Alleging Infringement of Copyrighted Architectural Designs

By Overhauser Law Offices, LLC

Northern District of Indiana – Plaintiff Design Basics, LLC of Omaha, Nebraska filed six lawsuits in the Northern District of Indiana alleging that multiple Defendants committed copyright infringement by constructing buildings based on plans derived from Plaintiff’s copyrighted works.

Design Basics is engaged in the business of creating, marketing, publishing and licensing the use of architectural works and technical drawings of those works. It has sued multiple Defendants, most of them home designers and builders, for copyright infringement.

The Defendant in the first lawsuit is Big C Lumber Co. Inc. of South Bend, Indiana. Two Defendants are listed in the second lawsuit: Carriage Place Homes, Inc., f/k/a Carriage Properties, Inc., d/b/a Bridle Homes and Bridle Homes, Inc. of Fort Wayne, Indiana.

The third lawsuit lists multiple Defendants: Culver Construction, Inc., d/b/a Culver Remodeling, Culver Design Build, Culver Custom Homes, and Hallmark Homes of Michiana; Culver Development Corporation d/b/a Property Management Services; Wes Culver Realty, LLC d/b/a KW Commercial and Industrial, Wes Culver Auctions, and Wes Culver Home Team; and New Paris Development Company, LLC of Goshen, Indiana.

In the fourth lawsuit, Lancia Homes, Inc. of Fort Wayne, Indiana, which does business as Lancia Construction, Springmill Development, Lancia Real Estate, Lancia Homes, Springmill Wood Development and Waterford Enterprises, is named. Quality Crafted Homes, Inc. of Harlan, Indiana is the sole Defendant in the fifth lawsuit.

The final lawsuit lists Windsor Homes, Inc., d/b/a Windsor Homes by Jeff Gilmore; Windsor Construction, LLC; Windsor Construction, Inc; and Windsor, Inc. of Fort Wayne, Indiana as Defendants.

While the details vary among the different lawsuits, the allegation at the core of each complaint is infringement of one or more of Design Basics’ copyrighted architectural designs by Defendants, with each lawsuit complaining of Defendants’ “construction and sale” of structures that infringe Plaintiff’s copyrights. Design Basics seeks equitable relief, damages, costs and attorney fees.

February 2, 2016

Indiana Trademark Litigation: Holder of Verge Trademark Sues The Verge Group

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana trademark attorneys for Plaintiff Indy Founders LLC d/b/a Verge of Indianapolis, Indiana filed a trademark infringement lawsuit with the court in the Southern District of Indiana. The lawsuit alleges that Vox Media, Inc. and The Verge Group LLC (“TVG”) infringed the VERGE trademark, Registration No. 4,153,192, which has been registered by the U.S. Patent and Trademark Office.

Indy Founders is in the business of creating and offering online publications and websites, as well as similar services, for startup technology entrepreneurs, investors, and collaborators. It states that it holds a federal registration on VERGE as a trademark and that the VERGE trademark has been used since at least as early as January 2011.

Defendant Vox Media is a partner and owner of Defendant TVG. Plaintiff asserts that Defendants are engaged in a business similar to Plaintiff’s and that Defendants use the VERGE trademark in connection with their business, THE VERGE, and in their business’ domain name, http://www.theverge.com/. Plaintiffs contend that Defendants’ use of THE VERGE to identify their goods and services is unlawful.

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

• Count I: Trademark Infringement
• Count II: False Designation Of Origin
• Count III: Unfair Competition
• Count IV: Declaratory Judgment
• Count V: Indiana Crime Victims Act [Forgery under IC §35-43-5-2]
• Count VI: Preliminary and Permanent Injunctive Relief

• Count VII: Corrective Advertising

Indy Founders seeks a declaratory judgment, equitable relief, actual damages, treble damages, costs and attorneys’ fees.

January 27, 2016

Indiana Patent Litigation: Cummins Sues ADP Distributors for Infringement of Turbocharger Patents

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Patent attorneys for Plaintiffs Cummins Ltd., headquartered in the United Kingdom, and Cummins Inc. of Columbus, Indiana commenced patent infringement litigation in the Southern District of Indiana. The Defendants are ADP Distributors USA, Inc. of Tempe, Arizona and ADP Distributors, Inc., headquartered in British Columbia, Canada. They are accused of infringing two of Plaintiffs’ U.S. patents, both of which have been filed with the U.S. Patent and Trademark Office.

Defendants are accused of infringing U.S. Patent No. 6,401,563 (“the ‘563 patent”), entitled “Actuating Mechanism For A Slidable Nozzle Ring” and U.S. Patent No. 5,941,684 (“the ‘684 patent”), entitled “Variable Geometry Turbine.” The ‘563 patent is directed to certain components of a turbocharger or turbomachine and to a linkage assembly for linking together certain components within a turbocharger or turbomachine, while the claims of the ‘684 patent “are generally directed to a turbine, such as one used in connection with a turbocharger, having one or more springs which provide non-linear length to spring force characteristics on a displaceable sidewall.”

Plaintiff Cummins Ltd. claims to own all right, title and interest in both patents. Plaintiff Cummins Inc. states that it is an exclusive licensee of the ‘563 and ‘684 patents for sales of turbochargers and turbocharger components.

Defendants’ accused products include the Rotomaster Turbocharger, offered under model number H1550112N, and a Rotomaster replacement part. Defendants are accused of acting individually or in concert with others or each other to advertise for sale, offer for sale, import, sell and/or use these products in the U.S.

This federal lawsuit, filed with the trial court by patent lawyers for the Plaintiffs, alleges the following claims:

• Count I: Direct Infringement of U.S. Patent No. 6,401,563
• Count II: Direct Infringement of U.S. Patent No. 5,941,684
• Count III: Inducement to Infringe the ‘563 Patent
• Count IV: Contributory Infringement of the ‘563 Patent

Plaintiffs seek equitable relief; damages, including treble damages; interest; costs and attorneys’ fees.

January 26, 2016

Indiana Trademark Litigation: Texas Roadhouse v. Texas Corral Litigation Moves to Indiana

By Overhauser Law Offices, LLC

Hammond, Indiana – Trademark litigation commenced in the Western District of Michigan in 2013 was transferred to the Northern District of Indiana yesterday.

This federal lawsuit, filed by trademark attorneys for Plaintiffs Texas Roadhouse, Inc. and Texas Roadhouse Delaware LLC, both of Louisville, Kentucky, alleges infringement of U.S. Service Mark Reg. No. 1,833,533, U.S. Service Mark Reg. No. 2,231,309, and U.S. Service Mark Reg. No. 2,250,966. These marks have been filed with the U.S. Patent and Trademark Office.

The Defendants listed in the Michigan complaint were Texas Corral Restaurants, Inc.; Switzer Properties, LLC; Texcor, Inc.; Texas Corral Restaurant II, Inc.; T.C. of Michigan City, Inc.; T.C. of Kalamazoo, Inc.; Chicago Roadhouse Concepts, LLC; Paul Switzer; Victor Spina; and John Doe Corp. Defendants filed a motion to dismiss or, in the alternative, transfer venue, with the Michigan court, which was granted. The lawsuit will continue in the Northern District of Indiana.

Plaintiffs, via their trademark lawyers, asserted the following claims:

• Count I: Trade Dress Infringement
• Count II: Federal Trademark Infringement
• Count III: Trademark Infringement Under Michigan Statutory Law
• Count IV: Trademark Infringement Under Indiana Statutory Law
• Count V: Trademark Infringement Under Common Law
• Count VI: Copyright Infringement

• Count VII: Unfair Competition Under Michigan and Indiana Common Law

Texas Roadhouse seeks equitable relief; damages, including punitive damages; costs and attorney fees.

January 11, 2016

Indiana Trademark Litigation: Barrington Music Sues Guitar Center, Music & Arts and Eastman Music Alleging Infringement

By Overhauser Law Offices, LLC

South Bend, Indiana – Indiana trademark attorneys for Plaintiff Barrington Music Products, Inc. of Niles, Michigan filed a trademark infringement lawsuit in the Northern District of Indiana. The Defendants in the litigation are Guitar Center Stores, Inc. of Westlake Village, California; Music & Arts Centers of Bel Air, Maryland, which is owned by Guitar Center; and Eastman Music Company of Pomona, California.

Plaintiff Barrington Music Products offers musical instruments, specifically featuring its “Roy

Benson” and “L.A. Sax” lines. Defendant Guitar Center has been in business more than 50 years and advertises itself as “the world’s largest retailer of guitars, amplifiers, drums, keyboards, recording, live sound, DJ, and lighting equipment.” It has more than 260 stores across the United States. Defendant Music & Arts offers musical instrument for sale, as well as offering repairs, rentals and instruction at its various locations nationwide. Defendant Eastman Music Company, which offers musical instruments globally, has been in business for more than 20 years.

The trademarks at issue in the lawsuit are U.S. Trademark Registration Nos. 3,831,402 and 3,831,403. They have been registered with the U.S. Patent and Trademark Office and cover VENTO both as a standard character trademark and as a stylized trademark.

Defendants are accused of trademark infringement, trademark dilution by blurring, unfair competition via passing off and trade name infringement of the VENTO trademark due to their marketing of wind instruments under the name “Ventus,” which means “wind” in Latin. Defendant’s “Vento” is Italian for “wind.”

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Plaintiff contends that it is “common knowledge that the English translations of VENTUS and VENTO are the same.” Plaintiff also asserts that Defendants use the Ventus mark with the intent to deceive consumers by causing them to believe that Defendants’ Ventus products are related to Plaintiff’s Vento products. Plaintiff claims that the use of the Ventus mark has caused, and will continue to cause, consumer confusion.

In this lawsuit, the following causes of action are alleged:

• Count I: Federal Trademark Infringement – Lanham Act (15 U.S.C. § 1114)
• Count II: Federal Unfair Competition – Lanham Act (15 U.S.C. § 1125(a))
• Count III: False Designation of Origin – Lanham Act (15 U.S.C. § 1125(a)(1)(B))
• Count IV: Federal Trademark Dilution – Lanham Act (15 U.S.C. § 1125(c))
• Count V: Trade Name Infringement under Indiana Common Law

• Count VI: Passing Off in Violation of Indiana’s Unfair Competition Doctrine

Barrington seeks equitable relief along with damages, including punitive damages, costs and attorneys’ fees.

January 5, 2016

Indiana Cable/Satellite TV Litigation: Showtime Bar and Grill Accused of Interception of Championship Fight

By Overhauser Law Offices, LLC

Hammond, Indiana – Plaintiff Joe Hand Promotions, Inc. of Feasterville, Pennsylvania filed an intellectual property lawsuit in the Northern District of Indiana alleging unlawful interception of content protected under federal intellectual property laws. The Defendants are Whitney Chapman, individually and d/b/a Showtime Bar and Grill, and Showtime Bar & Grill LLC, also d/b/a Showtime Bar and Grill. Showtime Bar and Grill operates in Gary, Indiana.

Joe Hand is a commercial distributor of sporting events. It states that it was granted exclusive rights to distribute via closed-circuit telecast the “Ultimate Fighting Championship 168: Chris Weidman v. Anderson Silva” championship fight, which was telecast nationwide on Saturday, December 28, 2013.

In this federal lawsuit, filed by an intellectual property attorney for Plaintiff, Defendants are accused of such wrongful acts as interception, reception, publication, divulgence, display, exhibition, and tortiously converting the fight program.

In addition to naming Showtime Bar and Grill LLC, Joe Hand has also sued Chapman as an individual, asserting that she had the right and ability to supervise the activities of the establishment and that, included in those activities, was the unlawful interception of the program.

Plaintiff asserts that, in addition to conversion of the program, Defendants have violated 47 U.S.C. § 605 and 47 U.S.C. § 553. Joe Hand seeks damages, including additional damages for any violation deemed willful as well as costs and attorneys’ fees.

Overhauser Law Offices, the publisher of this website, has represented several hundred persons and businesses accused of infringing satellite signals.

January 4, 2016

Indiana Patent Litigation: Longtime Competitors in RV Market in Federal Court over Assertions of Patent Infringement

By Overhauser Law Offices, LLC

South Bend, Indiana – Plaintiff Shower Enclosures America, Inc. of Ontario, California sued in the Northern District of Indiana alleging that BBC Distribution Corp. of Elkhart, Indiana infringed “Triple Slide Assembly for Sliding Doors,” U.S. Patent No. 7,174,944, which was issued by the U.S. Patent and Trademark Office.

An Indiana patent attorney for Plaintiff Shower Enclosures America, Inc. (“SEA”) filed this lawsuit alleging that Defendant BBC Distribution, LLC (“BBC”) is infringing SEA’s patent on a triple-slide assembly for sliding doors, a product which is cited in the complaint as particularly appropriate for use in recreational vehicles. The patent at issue is directed to “products, such as shower doors, which have three door panels mounted into a compact, two-track header which allows the panels to slide easily between open and closed positions.” SEA makes and sells products that incorporate the patented invention.

BBC is accused of infringing with its “Tripass” shower door. SEA contends that the BBC product infringes at least claim 12 of the patent-in-suit either literally or under the doctrine of equivalents.

SEA requests that the court grant it equitable relief as well as damages for the alleged patent infringement.

January 1, 2016

Indiana Copyright Litigation: Former Volunteer Sues Non-Profit for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana copyright lawyers for Plaintiff Angela Ellsworth of Huntington, Indiana filed a copyright lawsuit in the Southern District of Indiana alleging that Mission 22 a/k/a Elder Heart, Inc. of Nashville, Indiana infringed Ellsworth’s copyrighted artwork, Copyright Registration No. VA1-958-239, by creating at least one unauthorized derivative work.

Plaintiff Ellsworth is a professional artist. Defendant Elder Heart is a non-profit organization that helps veterans with post-traumatic stress disorder and promotes awareness of the veteran suicide rate of 22 per day.

From October 2013 to November 3, 2014, Ellsworth volunteered to assist Defendant in its efforts. Ellsworth states that she created original art, entitled “22”, that depicted the silhouettes of 22 soldiers and the shadows of those 22 silhouettes in November 2013. She indicates that she received a copyright for this artwork in April 2015.

Ellsworth claims that she donated 13 prints of a derivative of her copyrighted artwork to Defendant, including one that was specifically designated as a gift to Magnus Johnson, President and Chief Executive Officer of Defendant.

At a time unspecified in this copyright lawsuit, Defendant launched a project, “Mission 22,” to raise awareness of the veteran suicide rate. Ellsworth contends that, as part of this project, Defendant designed a sculpture that knowingly and willfully copied Plaintiff’s copyrighted artwork. Elder Heart also announced its intention to build the sculpture as a national monument.

In March 2015, a copyright attorney for Elder Heart contacted Ellsworth stating that, at the time that Elder Heart created the accused artwork, it was unaware of Ellsworth’s artwork and that “any similarities with [Plaintiff’s] artwork are a coincidence at best.” Ellsworth asserts that Elder Heart’s copyright counsel subsequently admitted that those statements were untrue.

This lawsuit lists a single count, copyright infringement. It asserts that “Defendant has created at least one unauthorized derivative work, violating Plaintiff’s exclusive right to prepare derivative works based upon her copyrighted Artwork.” Plaintiff Ellsworth seeks injunctive relief along with damages, attorneys’ fees and costs.

December 31, 2015

Indiana Intellectual Property Litigation: Joe Hand Alleges Interception by The Wing Company

By Overhauser Law Offices, LLC

New Albany, Indiana – Plaintiff Joe Hand Promotions, Inc. of Feasterville, Pennsylvania filed an intellectual property lawsuit in the Southern District of Indiana. The Defendants are two individuals, Darlene Vicars and Leann Richardson, and an entity, The Wing Company, LLC. Each of the Defendants is alleged to do business as The Wing Company of Sunman, Indiana. Vicars and Richardson have been sued both individually and d/b/a The Wing Company.

At issue in this latest Indiana interception lawsuit commenced by an intellectual property lawyer for Joe Hand is the alleged unlawful interception of the “Ultimate Fighting Championship 168: Chris Weidman v. Anderson Silva,” which was telecast nationwide on Saturday, December 28, 2013.

Plaintiff Joe Hand claims that it holds exclusive domestic rights to the commercial distribution of this championship fight program and that Defendants have deprived it of the “commercial license fee to which Plaintiff was rightfully entitled to receive” by showing the program without having purchased a commercial license from Plaintiff.

In this federal lawsuit, the following claims are made:

• Count I: Violation of Title 47 U.S.C. Section 605
• Count II: Violation of Title 47 U.S.C. Section 553

• Count III: Conversion

Joe Hand seeks statutory damages, including additional damages for willful violations. Costs and attorney’s fees are also sought.