New Litigation

June 16, 2021

Midcontinent Independent System Operator Sues for Alleged Trademark Infringement

Carmel, Indiana – Apparently Midcontinent Independent System Operator, Inc. (“MISO”), the Plaintiff, delivers electric power across 15 U.S. states and operates one of the world’s largest energy markets. In connection with its services, MISO claims it has three registered, incontestable, U.S. Trademarks 4,129,745, 4,616,653, and 4,136,817 (the “MISO Marks”). The MISO Marks include a wordmark for “MISO,” and two design marks: .

MISO claims that James F. Sullivan aka Jim Cassidy, the Defendant, under his business ADSNELLC, published a mobile application “Midcontinent ISO with Realtime Dashboard” (the “Infringing App”). The Infringing App and the Google Play listing for the Infringing App allegedly misappropriate and infringe the MISO Marks. Further, MISO claims ADSNELLC has published at least one other mobile application that encourages users to “hunt” and report illegal immigrants. Therefore, MISO claims the mere presence of the Infringing App is causing harm to MISO.

MISO is seeking injunctive relief and damages for trademark infringement and counterfeiting pursuant to 15 U.S.C. §§ 1116 and 1117.

June 14, 2021

Grand Design RV of Middlebury Sues for Alleged Patent Infringement

By Overhauser Law Offices, LLC

Middlebury, Indiana – According to the Complaint, Grand Design RV, LLC (“Grand Design”), the Plaintiff, designs innovative recreational vehicle products including its line of “toy hauler” recreational vehicles. Grand Design claims the “toy hauler” invention, which depicts a raisable bed positioned above the garage in a recreational vehicle, is protected by U.S. Patent Nos. 10,046,690, and 10,654,398 (the “Grand Patents”).

Grand Design claims Defendants, Thor Industries, Inc, Keystone RV Company and Jayco, Inc., offer, make, and/or sell products that infringe the Grand Patents (the “Accused Products”). The Accused Products allegedly include the Keystone Montana High Country Toy Hauler, the Keystone Raptor Toy Hauler, the Keystone Fuzion Toy Hauler, and the Jayco Northpoint Toy Hauler. Apparently Grand Design provided notice of infringement to the Defendants, but the alleged infringement has not ceased. Therefore, Grand Design is seeking damages for patent infringement, including treble damages and attorneys’ fees pursuant to 35 U.S.C. §§ 284 and 285.

June 11, 2021

Indiana Patent Infringement Litigation: Indiana-Based Digger Specialties, Inc. Sued for Alleged Patent Infringement

By Overhauser Law Offices, LLC

South Bend, Indiana – Apparently Fortress Iron L.P. (“Fortress”), the Plaintiff, is in the business of providing innovative building products including its FortressCable V-Series steel cable railing protected by U.S. Patent No. 10,883,290 (the “‘290 Patent”). Fortress claims Digger Specialties, Inc. (“Digger”), the Defendant, has been manufacturing and selling its Westbury VertiCable aluminum railing (the “Infringing Product”) that infringes the ‘290 Patent since at least 2018. While the ‘290 Patent issued on January 5, 2021, it allegedly claimed priority to U.S. Provisional Application No. 61/979,055 filed on April 14, 2014. Fortress is claiming Digger is liable for damages, interest, and costs pursuant to 35 U.S.C. § 284.

June 1, 2021

Indiana Copyright Infringement Litigation: Two Marion County Residents Sued for Alleged Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – LHF Productions, Inc. and Fallen Productions, Inc. (the “Plaintiffs”) own copyrights for the screen plays and motion pictures London Has Fallen (Certificate Number PA0001982831) and Angel Has Fallen (Certificate Number PA2197434) (hereinafter the “Works”), respectively. The Plaintiffs claim Derek S. Dueker (“Dueker”) and Doel aka byanski@gmail.com (“Doel” and collectively the “Defendants”) “registered for accounts with a notorious piracy website referred to as YTS” (the “YTS Website”). According to the Complaint, Dueker downloaded, reproduced, and shared copies of the Works numerous times in 2019. Doel also allegedly downloaded, reproduced, and shared copies of Angel Has Fallen.

According to the Complaint, Dueker and Plaintiffs entered into a settlement agreement in which Dueker would provide certain information relating to the copyright infringement along with paying $950. However, Plaintiffs claim Dueker failed to provide the signed declaration or pay the $950 as required by the agreement.

The Plaintiffs are seeking damages for direct copyright infringement in violation of 17 U.S.C. §§ 106 and 501. Plaintiffs are further claiming willful contributory copyright infringement in violation of 17 U.S.C. § 504(c)(2). Third, Plaintiffs claim Defendants knowingly concealed infringement of the Works by removing or altering the copyright management information in violation of the Digital Millennium Copyright Act, 17 U.S.C. § 1202. Finally, Plaintiffs are suing Dueker for breach of contract.

May 27, 2021

Eli Lilly and Company Files Patent Infringement Lawsuit

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Eli Lilly and Company (“Lilly”), the Plaintiff, apparently owns by assignment U.S. Patent No. 7,772,209 (the “‘209 Patent). According to the Complaint, Shilpa Medicare Limited (“Shilpa”), the Defendant, notified Lilly on November 12, 2020 that it had submitted to the U.S. Food and Drug Administration (“FDA”) a New Drug Application (“NDA”) seeking approval to manufacture and sell its Pemetrexed Injection products (“Shilpa’s NDA Products”) prior to the expiration of the ‘209 Patent. Apparently, that notification triggered “a forty-five-day period for Lilly to bring an action for patent infringement under the FDCA.”

Lilly is seeking a judgment that Shilpa has infringed the ‘209 Patent. Further, Lilly is seeking a “judgment ordering that the effective date of any FDA approval for Shilpa to make, use, offer for sale, sell, market, distribute, or import Shilpa’s NDA Products . . . be not earlier than the expiration date of the ‘209 patent.” In addition, Lilly is seeking a preliminary and permanent injunction and a declaration that this is an exceptional case pursuant to 35 U.S.C. § 285.

March 16, 2021

Indiana Resident Sues Amazon for Alleged Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Allen L. Asher-Butler (“Asher”), the Plaintiff, claims he designed and illustrated the covers for at least four books (the “Books”). Asher claims Defendants, Amazon-KDP and Jeffrey Bezo (collectively “Amazon”) have been selling the Books authored by William “Will” Wills since 2009 without his authorization. According to the Complaint, Asher filed a claim of copyright infringement with Amazon but apparently the Books have still been sold in both Kindle and paperback versions.

Asher is seeking damages for the sales of the Books in the form of a percentage of sales as a royalty. The approximate amount of royalties claimed by Asher is $5.4 million. Asher is further seeking to recover all court costs and fees.

February 25, 2021

Rylie Investments LLC Sued for Alleged Trademark Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Apparently, Armored Heating and Cooling Inc. (“AHC”), the Plaintiff, “is a leading provider of residential and commercial HVAC repair, service, sales and installations in central Indiana.” AHC claims the Defendant, Rylie Investments LLC (“Rylie”) also provides HVAC services in Indiana under the name “Armor Air.”

AHC claims to own U.S. Trademark Application Serial No. 90/058,569, U.S. Trademark Application Serial No. 90/084,330 and Indiana Trademark Registration ID 2020000026067 (the “AHC Trademarks”). According to the Complaint, Rylie filed a federal trademark application for the mark “ARMOR AIR” on July 20, 2020 under Application Serial No. 90/061,501. AHC further claims Rylie advertises its HVAC services despite not being a licensed HVAC contractor in Indianapolis, Indiana. Finally, AHC claims customers have been confused between the two companies and customers have complained that Rylie’s services are inferior and of poor quality.

AHC claims Rylie is liable for trademark infringement of the AHC Trademarks, false designation of origin, and unfair competition under the Lanham Act, 15 U.S.C. § 1125(a), and the common law. AHC is further seeking an injunction for trademark infringement pursuant to Ind. Code §§ 24-2-1-13 and 24-2-1-14.

February 19, 2021

WishBone Medical, Inc. Sued for Alleged Patent Infringement

By Overhauser Law Offices, LLC

Warsaw, Indiana – Apparently Orthopediatrics Corp. and Orthex, LLC (collectively “Ortho”), the Plaintiffs, own a patented method of fixing broken or deformed bones, United States Patent No. 10,258,377 (the “‘377 Patent”). Ortho claims Defendants, WishBone Medical, Inc. (“WishBone”) and Nick A. Deeter (“Deeter”), have infringed the ‘377 Patent. According to the Complaint, Deeter was an employee of Ortho from 2006 to 2013. Thereafter, Deeter apparently started WishBone in 2016.

Ortho claims WishBone’s “Smart Correction® External Fixation System” not only infringes the ’377 Patent, but that “WishBone admittedly knew of the ‘377 Patent by no later than June 2019, but proceeded to move forwarded [sic] with its infringing, copycat system.” Additionally, Ortho claims Deeter has breached his severance agreement in which he agreed not to disparage Ortho.

Ortho is seeking enhanced damages and attorneys’ fees for patent infringement pursuant to 35 U.S.C. §§ 284 and 285. Further, Ortho is seeking damages for unfair competition and false advertising under the Lanham Act. Finally, pursuant to Indiana common law, Ortho is suing Deeter for breach of contract, and both Defendants for defamation, tortious interference with contractual relationships, and tortious interference with prospective contractual relationships.

February 15, 2021

Makers of SPLENDA® Sue Speedway for Alleged Trade Dress Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Apparently Heartland Consumer Products LLC (“Heartland”), the Plaintiff, is the owner of the SPLENDA® brand sugar substitute sweetener, which comes in yellow packaging (the “Yellow Trade Dress”). According to the Complaint, Heartland has also used a variety of legally protected trademarks in connection with its SPLENDA® brand products.

In addition to its U.S. trademarks, and common law rights to the Yellow Trade Dress, Heartland also claims to have obtained trademark registrations for the SPLENDA® intellectual property in over 90 countries.

Heartland claims Speedway, LLC (“Speedway”), the Defendant, has “engaged in the active deception of customers through misappropriation of the Yellow Trade Dress in a manner that makes Speedway’s yellow sucralose packets easily mistakable for SPLENDA®’s yellow packets. Per the Complaint, Speedway failed “to provide sufficient cues to the consumer that the yellow sweetener packets in Speedway stores are not the leading brand sucralose-based sweetener sold by Heartland.” Therefore, Heartland claims Speedway’s actions are likely to deceive consumers into believing its sweetener provided in yellow packets is SPLENDA®.

Due to Speedway’s use of yellow packaging for sucralose, Heartland claims it has committed trade dress infringement, trademark dilution, false designation of origin, unfair competition, and false advertising pursuant to the Lanham Act, 15 U.S.C. § 1125. Heartland is seeking enhanced damages and attorneys’ fees under 15 U.S.C. § 1117 because it claims “Speedway’s actions are intentional, willful, and calculated to cause confusion, mistake or deception.” Further, Heartland is claiming common law trade dress infringement under Ind. Code § 24-2-1-15. Next, Heartland is claiming common law unfair competition. Finally, Heartland is claiming trademark dilution under Ind. Code § 24-2-1-13.5.

February 10, 2021

Delta Faucet Files Another Patent Infringement Suit

By Overhauser Law Offices, LLC

Indianapolis, Indiana – According to the Complaint, Delta Faucet Company (“Delta”), the Plaintiff, is a corporation involved in the business of manufacturing innovative faucets. Delta claims it owns two patents relating to “Magnetic Coupling[s] for Sprayheads,” United States Patent No. 10,669,702 and United States Patent No. 10,724,217 (collectively the “Delta Patents”). Further, Delta claims it launched products featuring the MagnaTite® Docking, protected by the Delta Patents, in 2007.

Delta claims Globe Union Industrial Corp., Gerber Plumbing Fixtures LLC and Danze, Inc. (the “Defendants”) manufacture, distribute, and/or offer magnetic docking faucets for sale. The allegedly infringing products feature “DockForce® magnetic docking technology” (the “Accused Products”). Delta claims the Accused Products infringe the Delta Patents and are seeking judgment that at least one claim of each of the Delta Patents has been infringed under 35 U.S.C. §§ 271(a) and (b). Further, Delta is seeking an injunction under 35 U.S.C. § 283 and damages pursuant to 35 U.S.C. § 284.