New Litigation

April 10, 2015

Indiana Trade Secret Litigation: College Retailers Sue for Full Access to Purdue-Amazon Agreement

Tippecanoe County, Indiana -An Indiana trade secret attorney for the National Association of College Stores Inc. (“NACS”), an Ohio-based organization, sued Purdue University of West Lafayette, Indiana in Tippecanoe Superior Court seeking full disclosure of an agreement between Purdue and Amazon.com Inc.

Earlier this year, Amazon opened its first brick-and-mortar store on the campus of Purdue University. This store, which allows merchandise to be both picked up and dropped off, was promoted as a way to save Purdue students money. Initial estimates suggest that the Purdue-Amazon partnership has resulted in savings of more than 40% for students.

In response to this addition to Purdue’s campus, NACS requested a copy of the agreement between Amazon and Purdue under Indiana’s Access to Public Records Act (“APRA”), codified as Ind. Code § 5-14-3-1 et. seq. Purdue released only a redacted copy, stating that Amazon considered the omitted material to be protectable as trade secrets, which are defined under APRA as:

April 9, 2015

Indiana Trademark Lawsuit: Bekins Sues Licensee of “Bekins” Trademark

By Overhauser Law Offices, LLC

Indianapolis, Indiana – An Indiana trademark lawyer for Wheaton Van Lines, Inc. and Bekins Van Lines, Inc., both of Indianapolis, Indiana (collectively, “Bekins”), filed a trademark-infringement lawsuit in the Southern District of Indiana alleging that Faulk-Collier Moving & Storage, LLC and David Vaughn, both of Louisiana, infringed the trademark BEKINS®, which has been registered by the U.S. Trademark Office as Trademark Registration No. 2427605.

Faulk-Collier, a moving-and-storage company in business since 1932, has been sued by Bekins for both trademark infringement and breach of contract. Bekins, which was founded in 1891, contends that it has made extensive use of the Bekins trademark, which it asserts has become both incontestable and famous. Bekins’ uses, it states, include inclusion in all of Bekins’ advertising materials, as well as being emblazoned on the side of all of the trucks, vans and trailers operating under Bekins’ authority for over ten years. Bekins has also sued Vaughn for more than $73,000, alleging that he personally guaranteed payment to Bekins.

In its Indiana trademark complaint, Bekins states that, in February 2014, it entered into an agreement with Faulk-Collier under which Faulk-Collier would serve as an interstate household agent for Bekins. Bekins further claims that, due to uncured breaches of that agreement by Faulk-Collier, Bekins terminated the arrangement in October 2014. After terminating the agreement, Bekins advised Defendants that they must cease all use of logos and trademarks owned by Bekins, including the removal of the Bekins trademark from all advertising, trucks, equipment, websites, and similar.

Nonetheless, contends Bekins, Faulk-Collier has continued to advertise moving services under the name “Bekins.” The accused uses include advertising on social media as well as operating numerous pieces of equipment in interstate commerce which bear one or more trademarks owned by Bekins. Bekins states that these uses by Faulk-Collier are unauthorized.

This federal lawsuit followed. In its complaint, filed by an Indiana trademark attorney, Bekins asserts the following:

• Count I – Breach of Contract
• Count II – Account Stated
• Count III – Federal Trademark Infringement

• Count IV – Federal and State Unfair Competition/Trademark Dilution

Bekins asks the court to enter preliminary and permanent injunctions; award Bekins monetary damages, statutory and otherwise, and punitive damages; and order Defendants to pay Bekins’ attorneys’ fees and costs.

March 27, 2015

Indiana Trade Secret Litigation: Precision Drone Sues Channel Masters for Misappropriating Trade Secrets

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana intellectual property lawyers for Precision Drone, LLC of Hamilton County, Indiana (“Precision”) commenced trade secret litigation in Hamilton County Superior Court alleging that Channel Masters, LLC of Wisconsin (“Channel”) breached its contract with Precision by improperly misappropriating and revealing trade secrets belonging to Precision.

Precision designs, engineers, manufactures and sells drones for use by farmers to monitor crops. It also develops and sells related software. Defendant Channel connects companies offering products to dealers of those products.

According to the complaint, in September 2014, Precision engaged Channel to sell the PaceSetter™ Drone to dealers of such products. To assist in Channel’s sales efforts, Precision provided Channel with equipment and training, some of which Precision contends is protected by Indiana trade secret law. As part of the sales agreement that the parties entered into, Precision states that Channel was prohibited from disclosing any of Precision’s confidential information without written authorization. The agreement also prohibited Channel from adversely interfering with Precision’s customers and prospective customers.

Plaintiff Precision alleges that, while Channel was working for Precision, it was also promoting and selling crop-imaging drones offered by AgriImage, a company that competes with Precision. Plaintiff also contends that Channel used Plaintiff’s images and training manual to demonstrate the competing AgriImage drones.

Precision claims copyright protection for the website that it uses to promote and advertise its products, as well as contending that at least one of its images was improperly displayed at a trade show by Channel, but the complaint listed no overt assertion of copyright infringement. The complaint, filed by Indiana intellectual property attorneys for Precision, instead alleges the following:

• Count I: Breach of Contract

• Count II: Misappropriation of Trade Secrets

Precision seeks judgment in its favor including damages, attorneys’ fees and costs.

Indiana copyright lawyers for Channel have removed the case to the Southern District of Indiana, arguing that such a removal is proper based both on federal question jurisdiction and diversity of citizenship.

March 25, 2015

Indiana Patent Litigation: Competing Indiana-Based RV Manufacturers Head to Federal Court

By Overhauser Law Offices, LLC

South Bend, Indiana – Indiana patent attorneys for Heartland Recreational Vehicles, LLC (“Heartland”) of Elkhart, Indiana initiated a patent lawsuit in the Northern District of Indiana alleging that Gulf Stream Coach, Inc., (“Gulf Stream”) of Nappanee, Indiana infringed Patent Nos. 7,278,650; 7,878,545 and 8,162,352, each of which is titled “Travel Trailer Having Improved Turning Radius,” and which have been registered by the U.S. Patent and Trademark Office.

Heartland manufactures recreational vehicles (“RVs”), including a type of travel trailer referred to as fifth-wheel travel trailers. Plaintiff contends that many of these fifth-wheel travel trailers incorporate and use one or more of the inventions of the patents-in-suit.

Gulf Stream allegedly manufactures RVs with some similar characteristics. These trailers are marketed under the names Canyon Trail, Sedona, and Ridgeline.

Heartland has sued Gulf Stream in federal court, claiming that Gulf Stream has infringed its patents. At issue are three patents: United States Patent Nos. 7,278,650; 7,878,545 and 8,162,352. According to Heartland, these patents “involve designs and technology relating to turning radius issues typically found in fifth wheel travel trailers, particularly when being towed by short-bed pick-up trucks, and Plaintiff’s Patents help avoid corner collisions between travel trailers and short-bed pick-up trucks, by changing the shape of the fifth wheel cap and/or chassis, as compared with prior caps and chassis.”

In its complaint, filed by Indiana patent lawyers, a single count – Patent Infringement – is alleged. That count covers all three patents-in-suit.

Plaintiff asks for a declaration of infringement of one or more claims of all three patents; equitable relief, including a permanent injunction; damages for the alleged infringement of the patents-in-suit; a declaration that any infringement was willful and increased damages, up to and including treble damages; and a declaration that the case is “exceptional” and, pursuant to that, an award of attorneys’ fees and expenses.

March 12, 2015

Indiana Copyright Litigation: Joe Hand Promotions Files Two New Interception Complaints

By Overhauser Law Offices, LLC

Evansville and Hammond, Indiana – An intellectual property attorney for Joe Hand Promotions, Inc. of Feasterville, Pennsylvania filed two Indiana lawsuits, one in the Northern District of Indiana against Robert J. Matijevich and UDL, LLC, both d/b/a L F Nortons, of Lake Station, Indiana and the other in the Southern District of Indiana against John Backes and Backes Frontier, LLC, both d/b/a New Frontier Restaurant and Bar, of Evansville, Indiana. Both lawsuits allege that defendants illegally intercepted a satellite signal and broadcast protected content.

Joe Hand Promotions, a commercial distributor of sporting events, asserts that it was granted exclusive domestic rights to the commercial distribution of the Ultimate Fighting Championship 158: Georges St. Pierre v. Nick Diaz (“program”), which was broadcast on March 16, 2013.

Two recent complaints were filed by the intellectual property lawyer for Joe Hand Promotions in federal courts in Indiana. In each complaint, both the business entity that owns the accused establishment and an individual charged with responsibility for that establishment’s operations have been named as defendants.

The allegations against the defendants include such wrongful acts as interception, reception, publication, divulgence, display, exhibition, and “tortuous” [sic] conversion of the program. Joe Hand Promotions asserts that the acts were “willful, malicious, egregious, and intentionally designed to harm Plaintiff Joe Hand Promotions.” As a result of these alleged acts, defendants have been have been accused of violating 47 U.S.C. § 605 and 47 U.S.C. § 553. Each complaint also lists a count of conversion.

Joe Hand Promotions seeks statutory damages of $100,000 to $110,000 for each willful violation of 47 U.S.C. § 605; $10,000 for each violation of 47 U.S.C. § 553; $50,000 for each willful violation of 47 U.S.C. § 553; compensatory and punitive damages on the claim of conversion; costs, including costs incurred for the service of process and the investigation of potential wrongdoing; and attorney’s fees.

March 4, 2015

Indiana Patent Litigation: TreeStuff Sued for Patent Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – An Indiana patent attorney for Sherrill, Inc. of Greensboro, North Carolina (“Sherrill”) filed a patent infringement complaint in the Southern District of Indiana alleging that TreeStuff, Inc. of Indianapolis, Indiana infringed Patent No. 5,887,577 entitled “Apparatus for Propelling a Projectile,” which has been registered by the U.S. Patent Office.

Plaintiff Sherrill asserts ownership by assignment to United States Patent No. 5,887,577 (“the ‘577 Patent”), which was issued to William T. Sherrill in 1999. It claims that TreeStuff manufactures, uses, offers for sale, and/or sells a product that infringes upon that patent, namely TreeStuff’s Stein Tekichu Throw Weight Launcher.

In November 2014, Sherrill sent a cease-and-desist letter to TreeStuff. In that letter, it identified the ‘577 Patent, stated that the Stein Tekichu Throw Weight Launcher infringed upon certain claims of the ‘577 Patent and demanded that TreeStuff cease all infringing activities.

Sherrill claims that TreeStuff did not respond to this letter but instead continued to use, offer to sell, and/or sell the accused product. Sherrill contends that, by engaging in these activities, TreeStuff has directly infringed, and will continue to directly infringe, at least claim 8 of the ‘577 Patent under 35 U.S.C. § 271(a) literally and/or under the doctrine of equivalents. Sherrill also suggests in its complaint that it is “reasonable to infer” that TreeStuff also intended to induce infringement. TreeStuff has also been accused of contributory infringement. Sherrill asserts that TreeStuff’s infringement has been and continues to be willful and deliberate.

In its complaint, filed by an Indiana patent attorney, Sherrill asks that the court:

• Declare that the ‘577 Patent was duly and legally issued, is valid and is enforceable;

• Enter judgment that defendant TreeStuff has infringed at least claim 8 of the ‘577 Patent;

• Enter judgment that defendant TreeStuff has induced infringement of at least claim 8 of the ‘577 Patent;

• Enter judgment that defendant TreeStuff has contributed to infringement of at least claim 8 of the ‘577 Patent;

• Enter a preliminary and permanent injunction enjoining defendant TreeStuff and its agents from any further sales or use of their infringing products and any other infringement of claims of the ‘577 Patent, whether direct or indirect, pursuant to 35 U.S.C. § 283;

• Award damages to compensate Sherrill for defendant TreeStuff’s infringement of the claims of the ‘577 Patent pursuant to 35 U.S.C. § 284;

• Award enhanced damages pursuant to 35 U.S.C. § 284;

• Award pre-judgment and post-judgment interest and costs to plaintiff Sherrill in accordance with 35 U.S.C. § 284; and

• Deem the case to be “exceptional” within the meaning of 35 U.S.C. § 285, entitling plaintiff Sherrill to an award of its reasonable attorney fees, expenses and costs in this action.

February 26, 2015

Copyright Litigation: Nike Sued for Infringement of Michael Jordan Photo – 1

By Overhauser Law Offices, LLC

Portland, Oregon – Copyright attorneys for Jacobus Rentmeester of Westhampton Beach, New York sued for copyright infringement in the District Court of Oregon, Portland Division alleging that Nike, Inc. of Beaverton, Oregon infringed Rentmeester’s copyrighted photo of Michael Jordan. This photo, Registration Number VA0001937374, has been registered with the U.S. Copyright Office.

Rentmeester, a New York photographer, commenced this litigation against Nike for Nike’s use of the iconic “Jumpman” photo in promoting its Jordan brand. In the lawsuit, Plaintiff Rentmeester contends that Nike directly, contributorily, and vicariously infringed his copyrighted image of Michael Jordan.

Rentmeester claims that he created the “Jordan Photo” for inclusion in a 1984 Olympic edition of Life Magazine, as part of a photo essay that he produced for the magazine. Among the athletes featured in Rentmeester’s photo essay, in addition to Jordan, were Carl Lewis and Greg Louganis.

At issue in this litigation is Rentmeester’s Jordan Photo. Rentmeester contends that he “conceived the central creative elements of the photograph.” These elements included portraying Jordan alone against the sky, “soar[ing] elegantly” and in a modified version of a grand jeté, a ballet jump during in which the person performs the splits in midair. According to the complaint, this type of jump was not typical for Jordan.

Rentmeester states that, after his photo was published, he agreed to accept a fee of $150 from Nike for temporary use of the photo for a “slide presentation only, no layouts or any other duplication.”

Nike later paid Rentmeester $15,000 for a limited license to use a modified work, although Plaintiff states that this agreement was reached only after Nike had already begun infringing use of the work and Rentmeester had complained to Nike of copyright infringement. Rentmeester contends that this license was limited to two years of use, on posters and billboards only, and for use within North America only. Rentmeester alleges that Nike exceeded the terms of that limited license by using the modified image other than on posters or billboards as well as outside North America. He also asserts that Nike’s use of the Jordan Photo constitutes willful copyright infringement as of the expiration of the license in 1987.

In the complaint, filed by copyright lawyers for Plaintiff, the following counts are enumerated:

• First Cause of Action: Copyright Infringement

• Second Cause of Action: Vicarious Copyright Infringement

• Third Cause of Action: Contributory Copyright Infringement

• Fourth Cause of Action: Violations of the Digital Millennium Copyright Act

Rentmeester, via his copyright attorneys, asks the court for a judgment of infringement; for an injunction; for impoundment of all infringing works; for actual and statutory damages, including profits attributable to infringement of Rentmeester’s copyright; for punitive damages; for a finding that neither Nike nor any independent infringers can assert copyright protection in any of the infringing works; and for costs and attorneys’ fees.

February 18, 2015

Indiana Trademark Litigation: Agdia Sues AC Diagnostics Alleging Deceptive Meta-tags and Other Trademark Harm

By Overhauser Law Offices, LLC

South Bend, Indiana – Indiana trademark attorneys for Agdia Inc. of Elkhart, Indiana sued in the Northern District of Indiana alleging that Jun Q. Xia and AC Diagnostics, Inc. of Fayetteville, Arkansas infringed the trademark AGDIA®, which has been registered as United States Trademark Registration No. 1747994.

For over 30 years, Plaintiff Agdia has been in the business of supplying testing, test kits, and associated products and services related to the presence of pathogens or quality factors in agricultural products. Agdia has sued a former employee, Jun Q. Xia, alleging violations of federal and Indiana intellectual property law. AC Diagnostics, a competing enterprise formed by Xia, has also been named as a defendant in this lawsuit.

Agdia contends that Defendants have been unlawfully using its trademarked name. Among the claims is that Xia has hidden the Agdia trademark followed by the phrase “plant diagnostics,” in the meta tags of nearly every product page associated with the AC Diagnostics website. Agdia asserts that, as an example, the “Company Profiles” section of the AC Diagnostics website, available at http://www.acdiainc.com/Comprofil.htm, appears upon first glance to provide nothing more than company information. However, if the page is printed, Agdia states that it reveals more text at the bottom of the document, hidden as white text on a white background.

Agdia also asserts that, through the AC Diagnostics website, Xia is deceptively and unfairly trading on Agdia’s name by hiding that name, followed by the phrase “plant diagnostics,” in the meta tags of nearly every product page associated with that site. Agdia contends that no fewer than 200 separate URLs from the Defendants’ website use the Agdia name deceptively.

Agdia finally cites the name of AC Diagnostic’s webpage as deceptive, claiming that “acdiainc,” which is used within www.acdiainc.com, AC Diagnostic’s website, is just one letter off from Agdia’s legal name, “Agdia Inc.” Defendants are accused of using this web address with the bad faith intent to profit from the Agdia trademark.

In a five-count complaint, filed by Indiana trademark lawyers for Agdia, Defendants are accused of willful, intentional, and unauthorized use of the Agdia trademark that is unlawful under federal law as well as Indiana state law.

Plaintiff Agdia asks the court to enjoin Defendants from using the Agdia mark; to cancel the domain www.acdiainc.com or transfer it to Agdia; for damages, including treble damages; and for attorneys’ fees and costs.

February 11, 2015

Indiana Patent Litigation: Four Mile Bay Asserts Patent Infringement Claims Against Zimmer

By Overhauser Law Offices, LLC

Hammond, Indiana – Patent attorneys for Four Mile Bay LLC (“FMB”) of Wadsworth, Ohio instituted intellectual property litigation in the Northern District of Indiana alleging that Zimmer Holdings, Inc. (“Zimmer”) of Warsaw, Indiana infringed its patented “Hip Implant With Porous Body,” Patent Nos. 8,821,582 and 8,506,642, which have been registered by the U.S. Patent Office.

Zimmer is a manufacturer and marketer of reconstructive orthopedic implants, including hip implants. At issue in this Indiana patent lawsuit are United States Patent Nos. 8,821,582 (the “‘582 patent”) and 8,506,642 (the “‘642 patent”). Zimmer is accused of having infringed and continuing to infringe the ‘582 and ‘642 patents by making, selling, and using hip implants, including a Trabecular Metal Primary Hip Prosthesis, that embody the patented invention.

Ownership of the ‘582 patent, issued for an invention in a method of machining, fabricating, and attaching components of a hip implant with a porous body, is claimed by FMB. FMB also asserts ownership of the ‘642 patent.

In this Indiana litigation, patent lawyers for FMB ask the court for the following:

Judgment that Zimmer has directly infringed claims of the ‘582 patent and the ‘642 patent;

For a reasonable royalty; and

For pre-judgment interest and post-judgment interest at the maximum rate allowed by law.

The case was assigned to Chief Judge Philip P. Simon and Magistrate Judge Christopher A. Nuechterlein in the Northern District of Indiana and assigned Case No. 3:15-cv-00063-PPS-CAN.

February 2, 2015

Indiana Patent Litigation: Lilly in Court Again Asserting Infringement of Alimta

By Overhauser Law Offices, LLC

Indianapolis, Indiana – An Indiana patent attorney for Eli Lilly and Company (“Lilly”) of Indianapolis, Indiana filed an intellectual property lawsuit in the Southern District of Indiana alleging that Fresenius Kabi USA, LLC (“Fresenius”) of Lake Zurich, Illinois infringed the patented product ALIMTA®, Patent No. 7,772,209, which has been registered by the U.S. Patent Office.

Lilly is engaged in the business of research, development, manufacture and sale of pharmaceutical products worldwide. Fresenius is in the business of manufacturing, marketing, and selling generic drug products.

ALIMTA, which is licensed to Lilly, is a chemotherapy agent used for the treatment of various types of cancer. ALIMTA is composed of the pharmaceutical chemical pemetrexed disodium. It is indicated, in combination with cisplatin, (a) for the treatment of patients with malignant pleural mesothelioma, or (b) for the initial treatment of locally advanced or metastatic nonsquamous non-small cell lung cancer. The drug is also indicated as a single agent for the treatment of patients with locally advanced or metastatic nonsquamous non-small cell lung cancer after prior chemotherapy. Additionally, ALIMTA is used for maintenance treatment of patients with locally advanced or metastatic nonsquamous non-small cell lung cancer whose disease has not progressed after four cycles of platinum-based first-line chemotherapy. One or more claims of U.S. Patent No. 7,772,209 (“the ‘209 patent”) cover a method of administering pemetrexed disodium to a patient in need thereof that also involves administration of folic acid and vitamin B12.

This Indiana patent infringement lawsuit arises out of the filing by Defendant Fresenius of an Abbreviated New Drug Application (“ANDA”) with the U.S. Food and Drug Administration (“FDA”) seeking approval to manufacture and sell generic versions of ALIMTA prior to the expiration of the ‘209 patent. Fresenius included as a part its ANDA filing a certification of the type described in Section 505(j)(2)(A)(vii)(IV) of the Food, Drug and Cosmetic Act, 21 U.S.C. § 55(j)(2)(A)(vii)(IV), with respect to the ‘209 patent, asserting that the claims of the ‘209 patent are invalid, unenforceable, and/or not infringed by the manufacture, use, offer for sale, or sale of Fresenius’ ANDA products.

In its patent infringement complaint, filed by an Indiana patent lawyer, Lilly states that Fresenius intends to engage in the manufacture, use, offer for sale, sale, marketing, distribution, and/or importation of Fresenius’ ANDA Products and the proposed labeling therefor immediately and imminently upon approval its ANDA filing, i.e., prior to the expiration of the ‘209 patent. Lilly asserts that Fresenius’ actions constitute 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 asserts that, in a prior case, 10-cv-1376-TWP-DKL, the court rejected Fresenius’ challenges to the validity of certain claims of the ‘209 patent. Accordingly, states Lilly, Fresenius should be estopped from challenging the validity of those claims of the ‘209 patent in the instant litigation.

Lilly lists a single count in this lawsuit – Infringement of U.S. Patent No. 7,772,209 – and asks the court for:

a) A judgment that Fresenius has infringed the ‘209 patent and/or will infringe, actively induce infringement of, and/or contribute to infringement by others of the ‘209 patent;

b) A judgment ordering that the effective date of any FDA approval for Fresenius to make, use, offer for sale, sell, market, distribute, or import Fresenius’ ANDA Product, or any product the use of which infringes the ‘209 patent, be not earlier than the expiration date of the ‘209 patent, inclusive of any extension(s) and additional period(s) of exclusivity;

c) A preliminary and permanent injunction enjoining Fresenius, and all persons acting in concert with Fresenius, from making, using, selling, offering for sale, marketing, distributing, or importing Fresenius’ ANDA Product, or any product the use of which infringes the ‘209 patent, or the inducement of or contribution to any of the foregoing, prior to the expiration date of the ‘209 patent, inclusive of any extension(s) and additional period(s) of exclusivity;

d) A judgment declaring that making, using, selling, offering for sale, marketing, distributing, or importing of Fresenius’ ANDA Product, or any product the use of which infringes the ‘209 patent, prior to the expiration date of the ‘209 patent, infringes, will infringe, will actively induce infringement of, and/or will contribute to the infringement by other of the ‘209 patent;

e) A declaration that this is an exceptional case and an award of attorneys’ fees pursuant to 35 U.S.C. § 285; and

f) An award of Lilly’s costs and expenses in this litigation.