New Litigation

June 24, 2015

Indiana Copyright Litigation: Bell Sues Georgia-Based FindTicketsFast.com for Copyright Infringement

Indianapolis, Indiana – Indiana attorney Richard N. Bell of McCordsville, Indiana filed an

intellectual property lawsuit in the Southern District of Indiana alleging that Find Tickets, LLC of Alpharetta, Georgia infringed the copyright of a photo of the Indianapolis skyline taken by Bell.

In 2000, Plaintiff Bell photographed the downtown Indianapolis skyline. Bell indicates in this complaint that the photo has been registered by the U.S. Copyright Office as Registration Number VA0001785115.

Find Tickets, LLC, which does business at the website www.findticketsfast.com, has been accused of infringing the copyright of this photo. In this single-defendant complaint, Bell contends that Find Tickets used his copyrighted image without permission and that, moreover, “each Defendant willfully and recklessly falsely claimed that it owned the copyrights of all images and photos contained in the Defendant’s website,” including Bell’s photo of Indianapolis. Consequently, alleges Bell, “Defendants have [sic] realized and continue to realize profits and other benefits rightfully belonging to Plaintiff.” Defendant Find Tickets is accused of “willfully and deliberately” engaging in copyright infringement “with oppression, fraud, and malice.”

In this federal complaint, copyright lawyer Bell makes claims of copyright infringement and unfair competition. Plaintiff asserts that he has suffered irreparable injury as a result of the alleged infringement of his copyrighted photo. Bell asks the court to declare that Find Tickets’ use of the photo violates Bell’s rights under the Copyright Act and to enjoin further infringing uses of his photo. He asks for an accounting of all gains, profits and advantages derived by Defendant as a result of the alleged infringement and for statutory and/or actual damages for each violation. Plaintiff also seeks reimbursement of costs and reasonable attorneys’ fees.

June 23, 2015

Indiana Trademark Litigation: Weekends Only, Inc. Sues Weekends Only Clearance Outlet

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – An Indiana trademark lawyer for Weekends Only, Inc. of St. Louis, Missouri filed a trademark infringement lawsuit in the Northern District of Indiana alleging that AK Distribution LLC and KASH Subsidiaries, Inc. of Fort Wayne, Indiana, one or both of which does business as “Weekends Only Furniture & Mattress Clearance Outlet,” infringed the trademarks WEEKENDS ONLY and WEEKENDS ONLY FURNITURE OUTLET, U.S. Registration Numbers 2,669,149; 2,697,959; 2,834,336; and 2,891,146, which have been registered by the U.S. Trademark Office.

Plaintiff Weekends Only, Inc. operates business establishments in Indiana and Missouri. It contends that it owns and has used various trademarks, currently registered by the U.S. Trademark Office, that include the words “Weekends Only” since approximately 1997. These trademarks have been registered in Class 35 for “Retail store services featuring furniture.”

In this federal lawsuit, Plaintiff alleges that Defendants AK Distribution LLC and KASH Subsidiaries, Inc. have used and continue to use confusingly similar versions of the WEEKENDS ONLY and WEEKENDS ONLY FURNITURE OUTLET trademarks. In so doing, states Plaintiff, Defendants have committed trademark infringement under federal and state law, unfair competition under the state law of Indiana, false designation of origin, injury to business reputation and/or trademarks, common law unfair competition.

In the complaint, filed by an Indiana trademark attorney for Plaintiff, the following claims are alleged:

• Count I: Infringement of Federally-Registered Trademark
• Count II: Infringement of Common Law Rights in Trademarks
• Count III: Unfair and Deceptive Trade Practices in Violation of Indiana Code § 24-5-0.5-1 et seq.
• Count IV: False Designation of Origin Under 15 U.S.C. § 1125(a)
• Count V: Common Law Unfair Competition
• Count VI: Motion for Permanent Injunctive Relief

Plaintiff asks the court for injunctive relief and damages.

June 19, 2015

Indiana Trademark Litigation: ArcelorMittal Sues Arillotta et al. for Tarnishment, Deception and Forgery

By Overhauser Law Offices, LLC

Hammond, Indiana – Trademark attorneys for ArcelorMittal USA LLC of Chicago, Illinois sued alleging violations of intellectual property rights and other rights. The lawsuit, filed in the Northern District of Indiana, alleges that Albert Arillotta, Global Demolition and Recycling, LLC, NMC Metals Corporation, and Arillotta Enterprises, LLC, all of Swampscott, Massachusetts, engaged in false designation of origin and false endorsement; dilution by blurring and tarnishment; deception; forgery; and deceptive trade practices.

ArcelorMittal is a producer and supplier of steel products. It owns and operates a steelmaking facility in Burns Harbor, Indiana. ArcelorMittal claims rights in federal trademark registrations to “ArcelorMittal” (Reg. Nos. 3908649 and 3643643) and “Mittal” (Reg. No. 4686413).

In 2012, Plaintiff ArcelorMittal solicited proposals for the installation of a pig iron casting machine at its Burns Harbor steelmaking facility. Plaintiff indicates that Arillotta, through his company Arillotta Enterprises, Inc., submitted a proposal for the project but that it was rejected. Nonetheless, contends ArcelorMittal, Arillotta subsequently represented to various third parties that “Arcelor Mittal Burns Harbor” and Defendant(s) had, in fact, entered into a contract for such an installation. Plaintiff further claims in its federal lawsuit that Arillotta forged the signature of two individuals, Michael Rippey and Louis Schorsch, listed as officers of ArcelorMittal, on documents related to this false claim.

Plaintiff also indicates in this lawsuit that Arillotta, when later unable to make payments owing on another contract, falsely claimed that ArcelorMittal would wire transfer $338,200.00 to cover an initial payment. When no such payment was forthcoming, because Plaintiff indicates that no such agreement existed, the payee on that contract then began to demand the money directly from ArcelorMittal.

ArcelorMittal contends that, in sum, “Arillotta has forged contracts and purchase orders purporting to represent in excess of ten million dollars ($10,000,00.00) worth of commercial activities between the defendant companies and ArcelorMittal when, in fact, ArcelorMittal has not hired Arillotta or his companies to perform any of the work shown in the forged contracts and purchase orders.”

In its complaint against Arillotta and the other Defendants, trademark lawyers for ArcelorMittal list the following counts:

• Count I: False Designation of Origin and False Endorsement
• Count II: Dilution by Blurring and Tarnishment
• Count III: Deception

• Count IV: Forgery
• Count V: Deceptive Trade Practices

Plaintiff ArcelorMittal asks the court for injunctive relief, money damages, costs and attorneys’ fees.

June 18, 2015

Indiana Trademark Litigation: Imprimis Sues Hook’s Apothecary for Trademark Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Trademark lawyers for Imprimis Pharmaceuticals, Inc. of California filed an intellectual property lawsuit in the Southern District of Indiana alleging that Hook’s Apothecary, Inc. of Indiana, as well as unidentified Doe Defendants 1 through 20, infringed the following Imprimis Pharmaceuticals, Inc. trademarks: GO DROPLESS! (U.S. Serial No. 96143543), GO DROPLESS! – Logo (U.S. Serial No. 86143553), LESSDROPS (U.S. Serial No. 86497791), DROPLESS CATARACT THERAPY (U.S. Serial No. 86497090 ), and DROPLESS THERAPY (U.S. Serial No. 86497100), which have been registered by the U.S. Patent and Trademark Office.

Imprimis offers slow-releasing ophthalmic compositions containing triamcinolone acetate, moxifloxacin hydrochloride, triamcinolone acetate, and vancomycin. It offers these products for use in the treatment of acute infections of the eye and for use via intraocular injection. These products are sold under the trademarks at issue in this Indiana lawsuit. The products are also claimed to be the subject of patent applications numbers 14/361,242 and 14/227,819, which have been filed with the USPTO.

Hook’s has been accused of infringing all, or some subset, of these intellectual property rights. Imprimis claims that Hook’s has been manufacturing, marketing, and selling “copycat” “Dropless” formulations, the administration of which has been reported to have caused a high incidence of endophthalmitis and other related problems in patients recovering from cataract surgery. This, Imprimis contends, has created confusion, harmed the reputation of Imprimis’ inventions, and caused some physicians to cease ordering from Imprimis.

In this complaint, filed by trademark attorneys for Imprimis in Indiana federal court, the following counts are alleged:

• Infringement of Trademarks (Against All Defendants)
• Common Law Unfair Competition (Against All Defendants)
• Common Law Trademark and Trade Name Infringement (Against All Defendants)
• For Declaratory Relief under 28 U.S.C. § 2201 (Against All Defendants)
• For Injunctive Relief (Against All Defendants)

Imprimis asks for general and special damages, as well as a trebling of those amounts “because of the willful nature of said infringements”; for a judgment that Hook’s has violated §§ 1114 and 1125(a) of the Lanham Act; for a judgment that Hook’s has engaged in unfair competition under the common law; for injunctive relief; and for an award of the costs of litigation, including attorneys’ fees.

June 17, 2015

Indiana Copyright Litigation: Richard Bell Files Two New Copyright Infringement Lawsuits

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana attorney Richard Bell of McCordsville, Indiana filed two new lawsuits alleging copyright infringement in the Southern District of Indiana. The Defendants in the first lawsuit are WRTV of Indianapolis, Indiana, and DISH Network Corporation of Englewood, Colorado. The Defendant in the second copyright complaint is Larry Turner of Indianapolis, Indiana.

In two similar intellectual property complaints, Bell, an Indiana copyright lawyer and professional photographer, alleged infringement of a copyrighted photo of Indianapolis. This photo, Registration Number VA0001785115, has been registered by the U.S. Copyright Office. Bell claims that he owns the intellectual property rights to the photo.

In two separate lawsuits, filed in an Indiana federal court, Bell asserts that the Defendants used his copyrighted photo without having purchased a license. Each complaint lists one count, “Copyright Infringement and Unfair Competition.” Bell asks for injunctive relief; actual and/or statutory damages; and reimbursement of litigation costs, including attorneys’ fees.

June 11, 2015

Indiana Trademark Litigation: Eco Elettrocomponenti Alleges Sale of Counterfeit Lights by National Supply

By Overhauser Law Offices, LLC

South Bend, Indiana – An Indiana trademark lawyer for Eco Elettrocomponenti SRL of Reggio Emilia, Italy (“Eco”) filed a trademark-infringement lawsuit in the Northern District of Indiana alleging that National Supply of Green Bay, Wisconsin sold counterfeit Eco products.

Plaintiff Eco is a manufacturer and supplier of components for lighting attractions. Among its products are cabochon lenses commonly referred to as “Star Lights.” Eco claims that its Star Light cabochon lenses have a distinct physical appearance and configuration. Eco indicates that it owns a trademark, Registration Number 4,401,967, for this distinct configuration.

Defendant National Supply sells specialty lighting and electrical products, including cabochon lenses. National Supply has been accused of having purchased counterfeit Star Lights for resale to consumers. In January 2015, a U.S.-based distributor of Eco’s Star Light contacted National Supply to discuss National Supply’s Internet sales of lenses advertised as Star Light lenses. Eco indicates that, in response to this discussion, National Supply voluntarily agreed not to sell Star Lights.

Eco contends that the sale of such lights by National Supply is nonetheless ongoing, stating that “National Supply offers for sale counterfeit ECO products.” Eco, via its Indiana trademark attorney, has sued National Supply, asserting that National Supply intentionally, knowingly, and willfully purchased and redistributed counterfeit Eco products. This trademark lawsuit asks the Indiana court for actual and/or statutory damages; a finding that this is an exceptional case meriting an award of costs, including attorneys’ fees and enhanced damages; and for injunctive relief.

June 10, 2015

Indiana Intellectual Property Litigation: DISH Network Accuses Indiana Resident of Piracy

By Overhauser Law Offices, LLC

New Albany, Indiana – Intellectual property attorneys for DISH Network L.L.C., EchoStar Technologies L.L.C., and NagraStar L.L.C., all of Englewood, Colorado (collectively, “DISH Network”), filed a lawsuit in the Southern District of Indiana alleging that Danny Abner of Paris Crossing, Indiana illegally intercepted, decrypted and viewed DISH Network satellite programming.

Defendant Abner has been accused by DISH Network of “circumventing DISH Network’s security system and receiving DISH Network’s satellite broadcasts of copyrighted television programming without payment of the required subscription fee.” This intellectual property lawsuit, brought in the Southern District of Indiana, claims Abner violated the Digital Millennium Copyright Act, 17 U.S.C. § 1201 et seq., the Federal Communications Act, 47 U.S.C. § 605 et seq., and the Electronic Communications Privacy Act, 18 U.S.C. § 2511 et seq.

According to DISH Network, Abner’s piracy occurred via the use of Nfusion Private Server (“NFPS”), a television-pirating service. Francis Philip, a/k/a Vgiddy, sold subscriptions to the NFPS service. Philip provided DISH Network with copies of his business records pertaining to Abner, which showed that Abner had purchased one or more subscriptions to the piracy service in 2012.

Through the NFPS piracy service, Abner allegedly obtained DISH Network’s digital “keys,” which he used to decrypt and view DISH Network programming. The type of piracy of which Abner is accused, Internet key sharing, is still possible despite DISH Network’s latest generation of security technology.

In the complaint, filed by intellectual property lawyers for DISH Network, the following counts are alleged:

• Count I: Circumventing an Access Control Measure in Violation of the Digital Millennium Copyright Act, 17 U.S.C. § 1201(a)(1)
• Count II: Receiving Satellite Signals Without Authorization in Violation of the Federal Communications Act, 47 U.S.C. § 605(a)

• Count III: Intercepting Satellite Signals in Violation of the Electronic Communications Privacy Act, 18 U.S.C. §§ 2511(1)(a) and 2520

DISH Network seeks injunctive relief, compensatory damages, punitive damages, and reimbursement for DISH Network’s costs, attorneys’ fees, and investigative expenses.

June 9, 2015

Indiana Patent Litigation: Donaldson Co. Sues Action Filtration Alleging Patent Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana patent attorneys for Donaldson Company, Inc. of Bloomington, Minnesota, (“Donaldson”) commenced an intellectual property lawsuit in the Southern District of Indiana alleging that Action Filtration, Inc. of Hope, Indiana infringed Patent No. 6,488,746, “Air Filter Assembly Having Non-Cylindrical Filter Elements for Filtering Air With Particulate Matter”; Patent No. D499,177, “Filter Element Having Oval Shape”; and Patent No. 7,264,656, “Air Filter Assembly Having Non-Cylindrical Filter Elements for Filtering Air With Particulate Matter,” which have been issued by the U.S. Patent Office.

Plaintiff Donaldson, established in 1915, is a worldwide provider of filtration systems and replacement parts. Defendant Action Filtration designs and manufactures replacement filters for dust collection and liquid filtration.

At issue in this Indiana patent lawsuit are three patents, to which Donaldson claims ownership: United States Patent No. 6,488,746 (“the ‘746 patent”), United States Design Patent No. D499,177 (“the ‘177 patent”) and United States Patent No. 7,264,656 (“the ‘656 patent”).

In this Indiana complaint, filed by patent lawyers for Donaldson, the following is alleged:

• Count I: Infringement of the ‘746 Patent
• Count II: Infringement of the ‘177 Patent

• Count III: Infringement of the ‘656 Patent

Donaldson asks the court for injunctive relief; compensatory damages; an award of Action Filtration’s total profits derived from infringement of the ‘177 Patent; and a declaration that the case is exceptional, to include an award to Donaldson of its attorneys’ fees, expenses, and costs associated with this patent lawsuit pursuant to such a declaration.

June 5, 2015

Indiana Trademark and Patent Litigation: Simpson Sues Two Indiana Individuals Alleging Patent Infringement and Counterfeiting

By Overhauser Law Offices, LLC

Hammond, Indiana – Trademark and patent attorneys for Simpson Performance Products, Inc. of Mooresville, North Carolina (“Simpson”) and SFI Foundation, Inc. of Poway, California (“SFI”) commenced trademark litigation in the Western District of North Carolina alleging that Robert Wagoner of North Judson, Indiana and Derek Randall Cathcart of Valparaiso, Indiana infringed the SIMPSON® family of trademarks, some of which have been registered by the U.S. Trademark Office. The case was transferred to the Northern District of Indiana. Among the trademarks at issue are U.S. Trademark Registration Nos. 4,117,821; 1,243,427; 3,026,333; 3,026,334; and 3,050,920. Also at issue are U.S. Patent Nos. 6,931,669 and 8,272,074.

Plaintiff Simpson is a manufacturer of automotive and motorsports specialty/performance products, including head and neck restraints for competitive racing. The Simpson brand of automotive and motorsports products has existed 1959. Plaintiff SFI was established to develop and administer minimum performance standards for the automotive aftermarket and motorsports industries, including standards for specialty/performance racing equipment.

Simpson offers for sale the SIMPSON® Hybrid PRO Rage™ head and neck restraint. Simpson indicates that this product is one of the few such devices to be certified under a special classification, SFI SPEC 38.1, for use in NASCAR competitions.

Defendants Wagoner and Carthcart have been accused of engaging in the business of providing specialty/performance racing equipment, including head and neck restraints that are counterfeit versions of Simpson products. Plaintiffs contend that Wagoner is offering counterfeit head and neck restraints through ebay.com. Plaintiffs allege that Cathcart offers counterfeit head and neck restraints via the website racingjunk.com.

These restraints, Plaintiffs contend, bear trademarks owned by Simpson, including the SIMPSON® federally registered trademark as well as the HUTCHENS Hybrid PRO™ and Hybrid PRO™ common law trademarks.

The accused products also allegedly bear a label that falsely states, “This product designed & manufactured by Safety Solutions, Inc. PATENT NO.: 6931669; other patents pending.” According to Plaintiffs, the alleged counterfeiting activities of Defendants also constitute patent infringement.

In this lawsuit, filed by patent and trademark lawyers for Plaintiffs, the following causes of action are listed:

• Trademark Infringement
• Unfair Competition under 15 U.S.C. § 1125(a); False Designation of Origin; False or Misleading Advertising
• Unfair and Deceptive Trade Practices under N.C. [North Carolina] Gen. Stat. § 75-1.1
• Patent Infringment [sic]

• Common Law Fraud

Plaintiffs ask for a finding in their favor on each of the counts alleged, including a finding that the conduct was knowing and willful, and entry against each Defendant jointly and severally. Plaintiffs seek costs, attorneys’ fees and damages, including enhanced damages, as well as injunctive relief.

This federal trademark complaint was initially filed in the Western District of North Carolina in February 2015. In May 2015, District Judge Richard Voorhees ordered it to be transferred to the Northern District of Indiana, finding that the North Carolina court lacked personal jurisdiction over Defendants.

June 3, 2015

Indiana Patent Litigation: Lippert Components Sued on Allegations of Patent Infringement

By Overhauser Law Offices, LLC

Elkhart, Indiana – Indiana patent lawyers for LTI Holdings, Inc. of Modesto, California (“LTI”) filed a patent-infringement complaint in the Northern District of Indiana alleging that Lippert Components, Inc. of Elkhart, Indiana (“Lippert”) 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.

Indiana-based Lippert, a subsidiary of Drew Industries, is a large supplier serving the recreational vehicle, manufactured housing, trailer, and bus industries. It offers a line of products dedicated to improving the mobile lifestyle.

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 federal intellectual property lawsuit. 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 attorneys for LTI 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

Plaintiff asks the court to enter a judgment:

a) declaring the ‘590 patent is directly infringed by Defendant;
b) declaring the Defendant induced infringement of the ‘590 patent;
c) declaring the Defendant has contributorily infringed the ‘590 patent;
d) declaring Defendant’s infringement of the ‘590 patent has been willful;
e) declaring Defendant be preliminarily and permanently enjoined from manufacturing, using, selling, and offering to sell the infringing products in the United States prior to the expiration of the ‘590 patent;
f) awarding damages adequate to compensate Plaintiff for Defendant’s infringement of the ‘590 patent including lost profits, but in an amount no less than a reasonable royalty, and that such damages be trebled according to 35 U.S.C. § 284;
g) declaring the ‘676 patent is directly infringed by Defendant;
h) declaring Defendant’s infringement of the ‘676 patent has been willful;
i) declaring Defendant be preliminarily and permanently enjoined from manufacturing, using, selling and offering to sell the infringing products in the United States prior to the expiration of the ‘676 patent;
j) awarding damages adequate to compensate Plaintiff for Defendant’s infringement of the ‘676 patent including lost profits, but in an amount no less than a reasonable royalty, and that such damages be trebled according to 35 U.S.C. § 284;
k) declaring the ‘677 patent is directly infringed by Defendant;
l) declaring Defendant’s infringement of the ‘677 patent has been willful;
m) declaring Defendant be preliminarily and permanently enjoined from manufacturing, using, selling, and offering to sell the infringing products in the United States prior to the expiration of the ‘677 patent;
n) awarding damages adequate to compensate Plaintiff for Defendant’s infringement of the ‘677 patent including lost profits, but in an amount no less than a reasonable royalty, and that such damages be trebled according to 35 U.S.C. § 284; and

o) awarding all costs and expenses of this action, including reasonable attorneys’ fees.