New Litigation

October 26, 2015

Indiana Patent Litigation: German Lawyers and Law Firm Sued on Allegations of Misappropriation of Intellectual Property

South Bend, Indiana – An Indiana patent attorney for Plaintiffs Never Lost Golf, LLC of South Bend, Indiana; Michael Carnell, a domiciliary of California who resides in Berlin, Germany and who does business as The Never Lost Golf Tee Saver and The Never Lost Golf Tee Saver Mat System (“NLG”); and Teresa O’Keefe and Grant Holloway, Trustees for the N.L.G. Living Trust filed a lawsuit in the Northern District of Indiana alleging infringement of NLG’s German Patent A63B 57/100, which has been filed with the German Patent Office. Patent protection for NLG has also been sought with the U.S. Patent and Trademark Office.

Three Defendants in this litigation, Maia Steinert, Chrisoph Stephan and Ralf Menwegen, are partners and/or members of Steinert & Stephan, a German law firm. Steinert has been accused by Plaintiffs of “aggregious [sic] conduct in asserting ownership interest in the NLG German patent.” Stephan and Menwegen were accused of having been “involved in the patent process.”

Carnell contends that he retained Steinert & Stephan in 2010 to represent him in filing for a German patent for the Never Lost Golf product. He adds in his complaint that any intellectual property rights obtained by these filings were supposed to accrue to him alone. Carnell asserts that, subsequent to hiring the Steinert & Stephan and utilizing their services in pursuit of a German patent, Steinert applied for a Never Lost Golf patent with the United States Patent and Trademark Office. This filing, states Carnell, includes an assertion by Steinert that she was the sole owner of the patent rights associated with the NLG product. He states that her actions demonstrate an attempt to illegally claim rights to intellectual property that she knew was not hers, both in the United States and in Germany.

Two additional Defendants, Markus Schumann and Harribert Pamp, have been named as co-conspirators. Plaintiffs contend that they conspired with Steinert to commit fraud and perjury in support of Steinert’s assertion of ownership in NLG’s German patent.

Defendants seek equitable relief along with damages, costs and attorney fees.

October 14, 2015

Indiana Patent and Trademark Litigation: Global Archery Sues Seattle-Based Company for Infringement

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – An Indiana intellectual property attorney for Global Archery Products, Inc. of Ashley, Indiana commenced litigation in the Northern District of Indiana alleging trademark and patent infringement by Jordan Gwyther d/b/a Larping.org and UpshotArrows.com of Seattle, Washington.

Two patents are at issue in this lawsuit: U.S. Patent No. 8,449,413 (the “`413 Patent”) and U.S. Patent No. 8,932,159 (the “`159 Patent”). Both are entitled “Non-Lethal Arrow.” Also at issue are U.S. Trademark Registration No. 4,208,867 and 4,208,868 for ARCHERY TAG for use in connection with non-lethal arrows. The patents and trademarks have been registered by the U.S. Patent and Trademark Office.

Global contends that Jordan Gwyther d/b/a Larping.org (“Larping”) is selling and offering for sale several products including a “Crossbow Bolt,” a “Flat Tip Larp Arrow,” a “Glow in the Dark Larp Arrow” and a “Round Tip Larp Arrow.” These arrows are marketed at www.upshotarrows.com. Global asserts that Larping is violating Global’s trademark rights by, inter alia, using the ARCHERY TAG trademark on advertising and as a paid “key word” on one or more search engines in connection with the marketing of these products. Global also claims that Larping’s products infringe upon two of Global’s patents.

In addition to patent infringement and trademark infringement, Global asserts various additional claims against Larping. The counts listed in this federal lawsuit are as follows:

• Count I: Infringement of the ‘413 Patent by Larping
• Count II: Infringement of the ‘159 Patent by Larping
• Count III: Infringement of Federal Trademarks
• Count IV: False Designation of Origin/Unfair Competition
• Count V: False Advertising
• Count VI: Tortious Interference with Contractual Relations
• Count VII: Tortious Interference with Business Relationships
• Count VIII: Criminal Mischief

• Count IX: Deception

Global seeks equitable relief along with damages, including punitive damages, costs and attorney fees.

October 2, 2015

Indiana Trademark Litigation: Indigo Vapor Enterprises Sues Indigo Vapor Company

By Overhauser Law Offices, LLC

South Bend, Indiana – Indigo Vapor Enterprises LLC of South Bend, Indiana commenced intellectual property litigation against Indigo Vapor Company, LLC, Robert Lee Martin and Charles Nandier of Tucson, Arizona.

Indigo Vapor Enterprises is in the business of selling “vaping” and e-cigarette materials across the United States and throughout the world. It alleges that Defendant sells similar goods in the same marketplace.

Plaintiff contends that Defendants infringed its trademarks, consisting of a stylized INDIGO VAPOR trademark, Registration No. 4,790,247, and a second trademark for INDIGO VAPOR, Registration No. 4,790,244 by using the Indigo Vapor Enterprises name and those trademarks to promote Defendants’ competing products. These accused uses include the operation of a website at www.indigovaporcompany.com. Both trademarks have been filed with the U.S. Patent and Trademark Office.

Plaintiff alleges trademark infringement, dilution and false designation of origin under the Lanham Act. It also asserts cybersquatting under the Anticybersquatting Consumer Protection Act (“ACPA”) and trademark infringement and unfair competition under the common law of Indiana and other states.

In this lawsuit, filed by Indiana trademark attorneys for Indigo Vapor Enterprises, the following causes of action are listed:

• 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 – Federal Cybersquatting – ACPA and Lanham Act (15 U.S.C. § 1125(d))
• Count VI – Common Law Trademark Infringement

• Count VII – Common Law Unfair Competition

Plaintiff seeks equitable relief as well as damages, costs and attorneys’ fees.

October 1, 2015

Indiana Patent Litigation: Additional Complaint Asserting Patent Infringement Filed Against Lippert

By Overhauser Law Offices, LLC

Elkhart, Indiana – Indiana patent attorneys for Lifetime Industries, Inc. and LTI Flexible Products, Inc. of Modesto, California have filed another complaint asserting patent infringement against Lippert Components Manufacturing, Inc. of Elkhart, Indiana. This lawsuit alleges that Defendant infringed Patent Nos. 6,966,590 for a “Two-Part Seal for a Slide-Out Room,” 7,614,676 for a “Resilient Seal for Mobile Living Quarters,” and 7,614,677 for a “Seal Assembly for Mobile Living Quarters.” These patents have been issued by the U.S. Patent and Trademark Office.

Lippert, a subsidiary of Drew Industries, is a supplier serving the recreational vehicle, manufactured housing, trailer, and bus industries. It offers a line of products intended to improve the mobile lifestyle. Although Plaintiffs have a principal place of business in California, both operate a manufacturing facility in Elkhart, Indiana.

Three patents – Patent Nos. 6,966,590 (“the ‘590 patent”), 7,614,676 (“the ‘676 patent”) and 7,614,677 (“the ‘677 patent”) – are at issue in this intellectual property litigation. Defendant Lippert has been accused of making, offering for sale and/or selling products that infringe upon one or more of these patents. Some of these activities purportedly occurred on two or more recreational vehicles manufactured by facilities in Indiana.

The first accused product is a two-part seal that allegedly infringes one or more claims of the ‘590 patent. The second and third accused products, both “Slide Armor” seals, purportedly infringe as many as all of the patents-in-suit.

A cease-and-desist letter was sent to Jason Lippert, the CEO of Defendant, in March 2015. Plaintiff contends that, despite this letter and the communications that followed, Defendant’s manufacture, offer for sale, and sale of each of the accused products has continued.

In this Indiana complaint, patent lawyers for Plaintiffs assert the following claims:

• Count 1: Direct Infringement of the ‘590 Patent
• Count 2: Direct Infringement of the ‘676 Patent
• Count 3: Direct Infringement of the ‘677 Patent
• Count 4: Induced Infringement of the ‘590 Patent

• Count 5: Contributory Infringement of the ‘590 Patent

Plaintiffs ask the court to enter a declaration of direct, induced and contributory infringement as well as a declaration that infringement has been willful. Plaintiffs also ask for injunctive relief; damages, including treble damages; and costs and attorneys’ fees.

September 30, 2015

Indiana Copyright Litigation: Copyright Infringement Lawsuit Removed to Federal Court

By Overhauser Law Offices, LLC

Evansville, Indiana – Responding to a complaint filed in Indiana state court by Indiana copyright attorneys, a defense lawyer filed a motion to remove the lawsuit to a federal court in the Southern District of Indiana – Evansville Division.

Plaintiff Professional Transportation, Inc. of Evansville, Indiana (“PTI”) is the former employer of Defendant Robert Warmka of Savage, Minnesota. Warmka worked for PTI from September 2012 to December 2013. PTI contends that this employment was governed in part by a trade-secrets agreement. Subsequent to leaving employment with PTI, Warmka began employment with Minnesota Coaches Inc. (“MCI”) d/b/a Crew Motion, a competitor of PTI.

PTI filed this copyright lawsuit in Vanderburgh Superior Court alleging that Warmka infringed its intellectual property by his use of Plaintiff’s copyrighted driver’s manual within MCI’s driver’s manual. PTI contends that multiple sections of PTI’s manual were reproduced nearly verbatim in MCI’s manual. PTI claims that this manual was filed with the U.S. Copyright Office “on or before 2012.” Plaintiff further contends that Defendant appropriated Plaintiff’s confidential material and trade secrets in violation of a trade secret agreement executed by both parties in 2012.

In this lawsuit, filed by Indiana copyright lawyers, the following counts are asserted:

• Count I: Indiana Trade Secret Violation
• Count II: Unfair Competition

• Count III: Copyright Infringement

Plaintiff alleges loss of business and profits and seeks injunctive relief and monetary damages.

Copyright attorneys for Warmka filed a notice of removal, stating that federal subject-matter jurisdiction was proper on the basis of both federal-question jurisdiction and diversity-of-citizenship jurisdiction.

September 23, 2015

Indiana Copyright Litigation: Latitude 360 Indianapolis Sued for Copyright Infringement

By Overhauser Law Offices, LLC

Jacksonville, Florida – A copyright lawyer for Universal Music Corp., WB Music Corp., EMI April Music, Inc., Bovina Music, Inc., and B.I.G. Poppa Music, all members of the American Society of Composers, Authors, and Publishers (“ASCAP”), sued in the Middle District of Florida asserting copyright infringement against Latitude 360 Nevada, Inc., Latitude 360 Jacksonville LLC, Latitude 39 Group LLC, Latitude 360 Indianapolis LLC and Brent W. Brown. ASCAP is headquartered in New York, New York. Among the Defendants is Indianapolis restaurant Latitude 360 Indianapolis.

ASCAP is a membership association. It licenses and protects the public performance rights of more than half a million members, including songwriters, composers and music publishers. Latitude 360 Indianapolis is a place of business that offers public entertainment and refreshment.

Plaintiffs have asserted that Latitude Indianapolis 360 infringed multiple copyrighted works by permitting unlicensed performances of copyrighted works belonging to Plaintiffs. Plaintiffs claim that, since November 2012, they have attempted to contact Latitude 360 Indianapolis and/or other Defendants more than 40 times to offer an ASCAP license but that these offers were refused. Four causes of action for copyright infringement have been alleged in this copyright lawsuit.

Plaintiffs ask for injunctive relief against Defendants ordering them to cease publicly performing Plaintiffs’ compositions; and a judgment for statutory damages, attorney’s fees and costs.

September 18, 2015

Indiana Intellectual Property Litigation: J & J Sports Files New Lawsuits in Southern District of Indiana

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Via its intellectual property counsel, Plaintiff J & J Sports Productions, Inc. of Campbell, California (“J & J Sports”) filed two separate intellectual

property complaints in the Southern District of Indiana alleging unlawful interception and broadcast of “The One” on Saturday, September 14, 2013.

The Defendants in the first lawsuit are Alejandro Soriano Perez, individually and d/b/a El Palenque Restaurant, and El Palenque, #1 LLC, of Noblesville, Indiana. In the second lawsuit, J & J Sports sued Edis Mejia, individually and d/b/a LaCasacada Authentic Mexican Restaurant and Mejia-Miranda, Inc. of Elwood, Indiana.

J & J Sports states that it is the exclusive domestic commercial closed-circuit distributor of the Program. It has sued the Defendants under the Communications Act of 1934 and The Cable & Television Consumer Protection and Competition Act of 1992. Specifically, Defendants have been accused of violating 47 U.S.C. § 605 and 47 U.S.C. § 553 by displaying the Program at issue on September 14, 2013 without an appropriate license. A count of conversion is also included in both lawsuits.

Plaintiff has sued the non-LLC Defendants as individuals, alleging that they had the right and ability to supervise the activities of the commercial establishments that allegedly engaged in the illegal interception. J & J Sports asserts that the activities that they supervised included the unlawful interception of Plaintiff’s “The One” Program.

J & J Sports also contends that the individual Defendants specifically directed the employees of the restaurants to unlawfully intercept and broadcast Plaintiff’s Program at the commercial establishments or, if they did not, that the actions of the employees of the restaurants are directly imputable to the Defendants sued as individuals by virtue of their purported responsibility for the activities of their respective establishments.

In these two Indiana interception complaints, the intellectual property attorney for J & J Sports listed the following counts:

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

• Count III: Conversion

J & J Sports asks for damages, as well as costs and attorneys’ fees.

September 17, 2015

Indiana Copyright Litigation: Attorney/Photographer Sues Georgia Real Estate Company for Infringing Copyrighted Photo

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Filing on his own behalf, copyright attorney and professional photographer Richard N. Bell of McCordsville, Indiana initiated litigation in the Southern District of Indiana alleging copyright infringement by KG American Real Estate Holdings, LLC (“KG”) of Duluth, Georgia.

In 2000, Plaintiff Bell photographed the downtown Indianapolis skyline. Bell claims that the KG used this photo, U.S. Copyright Registration No. VA0001785115, without Plaintiff’s permission. Bell states that KG created “a website to promote and advertise its own real estate business” and displayed Bell’s copyrighted photo on that website. Bell further claims that this company “willfully and recklessly falsely claimed that it owned the copyrights of all images and photos” contained on its website, http://richliferealestate.com/location/indianapolis-metro/, including Bell’s photo of Indianapolis.

In this Indiana federal litigation, a single count is listed: copyright infringement and unfair competition. Bell asks for injunctive relief to prevent KG from using Bell’s copyrighted photo without consent as well as a judgment for damages, attorney’s fees and costs.

Practice Tip: Richard Bell has sued hundreds of defendants for copyright infringement in Indiana’s federal courts. Previous blog posts regarding his litigation include:

• Sovereign Immunity May Take a Toll on Bell’s Latest Copyright Lawsuit
• Appellate Court Dismisses Copyright Appeal as Premature
• Bell Rings in the Holiday Weekend with a New Copyright Lawsuit
• Bell Files New Copyright Infringement Lawsuit
• Bell Sues Georgia-Base FindTicketsFast.com for Copyright Infringement
• Richard Bell Files Two New Copyright Infringement Lawsuits
• Court Prevents Copyright Plaintiff Bell from Outmaneuvering Legal System; Orders Bell to Pay Almost $34,000 in Fees and Costs
• Three Default Judgments of $2,500 Ordered for Copyright Infringement
• Court Orders Severance of Misjoined Copyright Infringement Complaint

• Richard Bell Files Another Copyright Infringement Lawsuit

September 16, 2015

Indiana Intellectual Property Litigation: J & J Sports Files Three New Lawsuits in Northern District of Indiana

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – Via its intellectual property counsel, Plaintiff J & J Sports Productions, Inc. of Campbell, California (“J & J Sports”) filed three separate intellectual property complaints in the Northern District of Indiana alleging unlawful interception and broadcast of “The One” on Saturday, September 14, 2013.

The Defendants in the first lawsuit are Leonor Navarro and Sergio Navarro, individually and d/b/a La Santa Anita Family Grill, and Navarro Family Restaurant LLC, also d/b/a La Santa Anita Family Grill, all of Fort Wayne, Indiana. In the second lawsuit, J & J Sports sued Marco Puente, individually and d/b/a Estrella’s Sports Bar and Rumurs LLC, also d/b/a Estrella’s Sports Bar, both of Hammond, Indiana. Defendant Virginia Ramirez of Fort Wayne, Indiana was sued individually and d/b/a La Puerta Negra in the third complaint.

J & J Sports states that it is the exclusive domestic commercial closed-circuit distributor of the Program. It has sued the Defendants, both individually and doing business as commercial entities, under the Communications Act of 1934 and The Cable & Television Consumer Protection and Competition Act of 1992. Specifically, Defendants have been accused of violating 47 U.S.C. § 605 and 47 U.S.C. § 553 by displaying the Program at issue on September 14, 2013 without an appropriate license. A count of conversion is also included in each lawsuit.

Plaintiff has sued the non-LLC Defendants as individuals, alleging that they had the right and ability to supervise the activities of the commercial establishments that allegedly engaged in the illegal interception. J & J Sports asserts that the activities that they supervised included the unlawful interception of Plaintiff’s Program.

J & J Sports contends that the individual Defendants specifically directed the employees of the restaurants to unlawfully intercept and broadcast Plaintiff’s Program at the commercial establishments or, if they did not, that the actions of the employees of the restaurants are directly imputable to the Defendants sued as individuals by virtue of their purported responsibility for the activities of their respective establishments.

In all of these Indiana interception complaints, the intellectual property attorney for J & J Sports listed the following counts:

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

• Count III: Conversion

J & J Sports asks for damages, as well as costs and attorneys’ fees.

September 15, 2015

Indiana Copyright Litigation: Former School Employee Sues Schools for Unauthorized Use of Copyrighted Program

By Overhauser Law Offices, LLC

South Bend, Indiana – Pro se Plaintiff Angela E. Brooks-Ngwenya, of Fort Wayne, Indiana has filed a copyright complaint in the Northern District of Indiana alleging that The Mind Trust, United Way of Central Indiana, Central Indiana Education Alliance, Phalen Leadership Academies, and Indianapolis Public Schools (“IPS”), all of Indianapolis, Indiana, committed copyright infringement.

Plaintiff contends that she piloted a program, Transitioning Into Responsible Students (“TIRS”) at Gambold Middle School in 2002. She claims that she filed for copyright protection on TIRS in 2006 and that she received a copyright registration in 2008 from the U.S. Copyright Office.

Brooks-Ngwenya claims that her copyrighted material has been infringed by several of Defendants’ programs, including Bridges To Success Education School Model and the Phalen Leadership Academies Education Model.

According to documents filed with the court, prior federal litigation between Brooks-Ngwenya and IPS, which included allegations by Plaintiff of race and gender discrimination, was concluded through a confidential settlement agreement between the parties. Brooks-Ngwenya asserts that these current claims of copyright infringement were excluded from that settlement agreement. Prior litigation between the parties in Marion County court included disability claims made by Brooks-Ngwenya.

Plaintiff drafted a cease and desist order for the court’s review as part of her filing and asked that the court enforce it pending a settlement. She also requested a mediation hearing.