Articles Posted in New Litigation

July 7, 2014

Indiana Intellectual Property Litigation: Joe Hand Promotions Sues Johnson’s Tavern and its Owner for Unlawful Interception and Broadcast of Championship Fight

Indianapolis, Indiana – An intellectual property lawyer for Joe Hand Promotions, Inc. of Feasterville, Pennsylvania has sued in the Northern District of Indiana alleging that Michael J. Casteel, individually and d/b/a Johnson’s Tavern and Casteel Enterprises of Galveston, Inc., both of Galveston, Indiana, unlawfully intercepted and broadcast the “Ultimate Fighting Championship 148: Anderson Silva v. Chael Sonnen” championship fight (the “Program”).

Joe Hand Promotions was granted rights to distribute the Program, which was telecast nationwide on Saturday, July 7, 2012. In the complaint against Casteel and Casteel Enterprises, both d/b/a Johnson’s Tavern, an intellectual property lawyer for Joe Hand Promotions has alleged such wrongful acts as interception, reception, publication, divulgence, display and/or exhibition,” claiming that Defendants “tortuously [sic] obtained possession of the Program” and engaged in conversion when they displayed the Program in Johnson’s Tavern.

In addition to naming the separate legal entity which allegedly owns Johnson’s Tavern, Joe Hand Promotions has also sued Casteel as an individual, claiming that he is an officer of Casteel Enterprises and that he had the right and ability to supervise the activities of Johnson’s Tavern on the night of the Program. Plaintiff asserts that those activities included the unlawful interception of its UFC Program. It further claims that Johnson’s Tavern and Casteel received financial benefit from the unlawful display of the Program.

Casteel has been accused of violating 47 U.S.C. § 605 and 47 U.S.C. § 553. The complaint also lists a count of conversion. Joe Hand Productions seeks statutory damages of $100,000 for each willful violation of 47 U.S.C. § 605; $60,000 for each willful violation of 47 U.S.C. § 553; compensatory damages on the claim of conversion; and costs and attorney’s fees. These claims have been made against both Casteel Enterprises and as personal liability claims against Casteel.

Practice Tip #1: Joe Hand Productions has sued two entities: a corporation and an individual who is allegedly a principal of that corporation. While corporations were designed, among other purposes, to limit the liability of the principals, they are not always successful in doing so. Where a principal is personally involved in certain types of illegal activity, legal mechanisms (such as a corporation or a limited liability company) that are designed to shield the principal from liability may fail to do so.

Practice Tip #2: While on the surface this appears to be a copyright case, an allegation of interception under 47 U.S.C. § 605 is a different cause of action from copyright infringement. However, a suit alleging interception does not preclude an additional lawsuit alleging different causes of action. For example, the copyright holder can also sue for copyright infringement, which could increase damages by as much as $150,000.

July 3, 2014

Indiana Patent Litigation: CeraMedic Sues Biomet for Patent Infringement

By Overhauser Law Offices, LLC

South Bend, Indiana – Indiana patent attorneys for CeraMedic LLC of Plano, Texas filed an intellectual property lawsuit in the Northern District of Indiana alleging that Biomet, Inc. of Warsaw, Indiana infringed “Sintered Al₂O₃ Material, Process for Its Production and Use of the Material“, Patent No. 6,066,584, which has been issued by the United States Patent Office.

This Indiana patent litigation concerns Patent No. 6,066,584 (the “‘584 patent”), which relates to the field of ceramics and concerns sintered Al₂O₃ compositions and methods for the use of such material as medical implants or tool material.

The ‘584 patent was issued in May 2000 to Fraunhofer-Gesellschaft zur Förderung der Angewandten Forschung e.V., Germany (“Fraunhofer”), Europe’s largest application-oriented research organization. CeraMedic states that Fraunhofer, the assignee of over 1,500 U.S. patents, assigned ownership of the ‘584 patent to CeraMedic in early 2014.

CeraMedic indicates that non-party CeramTec GmbH (“CeramTec”) developed and manufactures BIOLOX delta, an aluminum oxide matrix composite ceramic consisting of approximately 82% alumina (Al₂O₃), 17% zirconia (ZrO₂), and other trace elements.

CeraMedic then states that Defendant Biomet “designs, develops, manufactures, offers for sale, sells, uses, distributes, and markets hip implants, many of which include” CeramTec’s BIOLOX delta and that such actions constitute infringement of the ‘584 patent. Biomet is accused of infringing the ‘584 patent directly, literally, and/or by equivalents.

The complaint, filed by Indiana patent lawyers, lists a single count: infringement of the ‘584 patent. CeraMedic asks the court for a judgment against Biomet determining that Biomet has infringed and continues to infringe one or more claims of the ‘584 patent; enjoining Biomet and its agents from further infringing the ‘584 patent; ordering Biomet to account for and pay to CeraMedic all damages suffered by CeraMedic as a consequence of Biomet’s alleged infringement of the ‘584 patent, together with interest and costs; trebling or otherwise increasing CeraMedic’s damages under 35 U.S.C. § 284 upon a finding that the asserted infringement by Biomet of the ‘584 patent was deliberate and willful; and declaring that this case is exceptional and awarding to CeraMedic its costs and attorneys’ fees in accordance with 35 U.S.C. § 285.

Practice Tip:

The Federal Circuit has somewhat tempered the threat of a finding of willfulness in patent infringement in recent years. In 2007, sitting en banc, it established a heightened standard for willfulness that included an inquiry into whether a defendant’s actions were “objectively reckless” in In re Seagate Technology LLC.

In 2012, in Bard Peripheral Vascular Inc. v. W.L. Gore & Associates Inc., the Federal Circuit removed the threat of findings of willfulness by “runaway juries,” including the uncertainties inherent in the fact that such jury findings would be delayed for many years as patent litigation made its way to trial and finally to a jury verdict. In that case, the Federal Court held that the threshold determination for willful infringement is a question of law and, as such, is to be decided by the trial court.

Nonetheless, compensatory damages in patent infringement litigation can reach seven, eight or even nine figures. Given that a finding of willfulness can treble those damages, patent infringement defendants must not take assertions of willfulness lightly.

June 30, 2014

Indiana Patent Litigation – Lilly Adds Panacea Biotec to List of Patent Infringement Defendants

By Overhauser Law Offices, LLC

Indianapolis, Indiana – An Indiana patent attorney for Eli Lilly and Company of Indianapolis, Indiana; Daiichi Sankyo Co., Ltd of Tokyo, Japan; Daiichi Sankyo, Inc. of Parsippany, New Jersey; and Ube Industries, Ltd. of Yamaguchi, Japan sued in the Southern District of Indiana alleging that Panacea Biotec, Ltd. of New Delhi, India (“Panacea”) infringed Effient® products, Patent Nos. 8,404,703 and 8,569,325, which have been issued by the United States Patent Office.

This lawsuit adds another defendant, Panacea, to Lilly’s Indiana patent litigation. In these “Effient” patent-defense lawsuits, Lilly et al. assert allegations of infringement of Effient. At issue in the Panacea litigation are Effient-related patents 8,404,703 “Medicinal Compositions Containing Aspirin,” (the “‘703 patent”) and 8,569,325 “Method of Treatment with Coadministration of Aspirin and Prasugrel” (the “‘325 patent”).

This complaint asserts patent infringement arising out of the filing by Panacea of an Abbreviated New Drug Applications (“ANDA”) with the United States Food and Drug Administration (“FDA”) seeking approval to manufacture and sell generic versions of two pharmaceutical products – Effient 5mg and Effient 10mg tablets – prior to the expiration of the ‘703 patent and the ‘325 patent. These patents cover two Effient products and/or methods of using Effient products and for which Lilly claims an exclusively license.

Effient products were approved by the FDA for the reduction of thrombotic cardiovascular events in certain patients with acute coronary syndrome (ACS) who are to be managed with percutaneous coronary intervention (PCI, or angioplasty). Effient products contain prasugrel hydrochloride, which is also known as 5-[(1RS)-2-cyclopropyl-1-(2-fluorophenyl)-2-oxoethyl]-4,5,6,7-tetrahydrothieno[3,2-c]pyridin-2-yl acetate hydrochloride or 2-acetoxy-5-(alpha-cyclopropylcarbonyl-2-fluorobenzy1)-4,5,6,7-tetrahydrothieno[3,2-c]pyridine hydrochloride, and is covered by the ‘726 patent.

The instructions accompanying Effient products state that patients taking Effient products should also take aspirin. The use of Effient products in combination with aspirin for the reduction of thrombotic cardiovascular events in patients with ACS who are to be managed with PCI is allegedly covered by the claims of the ‘703 and ‘325 patents.

Panacea is accused of planning to infringe the patents-in-suit by including with its products instructions for use that substantially copy the instructions for Effient products, including instructions for administering Panacea’s products with aspirin as claimed in the ‘703 and ‘325 patents.

Plaintiffs contend that Panacea knows that the instructions that Panacea intends to include with its products will induce and/or contribute to others using those products in the allegedly infringing manner set forth in the instructions. Moreover, Lilly et al. also contend that Panacea specifically intends for health care providers, and/or patients to use Panacea’s products in accordance with the instructions provided by Panacea and that such use will directly infringe one or more claims of the ‘703 and ‘325 patents. Thus, state Plaintiffs, Panacea’s actions will actively induce and/or contribute to infringement of the ‘703 and ‘325 patents.

The complaint, filed by an Indiana patent lawyer, lists four counts:

• Count I: Infringement of U.S. Patent No. 8,404,703
• Count II: Declaratory Judgment of Infringement of U.S. Patent No. 8,404,703
• Count III: Infringement of U.S. Patent No. 8,569,325
• Count IV: Declaratory Judgment of Infringement of U.S. Patent No. 8,569,325

Plaintiffs ask the court for judgment:

• That Panacea has infringed the ‘703 patent and/or will infringe, actively induce infringement of, and/or contribute to infringement by others of one or more claims of the ‘703 patent;
• That Panacea has infringed the ‘325 patent and/or will infringe, actively induce infringement of, and/or contribute to infringement by others of one or more claims of the ‘325 patent;
• That, pursuant to 35 U.S.C. § 271(e)(4)(B), Panacea be permanently enjoined from making, using, selling or offering to sell any of its accused products within the United States, or, where applicable, importing accused products into the United States prior to the expiration of the ‘703 and ‘325 patents;
• That, pursuant to 35 U.S.C. § 271(e)(4)(A), the effective date of any approval of the Panacea ANDA under § 505(j) of the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 355(j)) shall not be earlier than the later of the expiration dates of the ‘703 and ‘325 patents, including any extensions;
• If Panacea commercially makes, uses, sells or offers to sell any accused product within the United States, or, where applicable, imports any accused product into the United States, prior to the expiration of either of the ‘703 and ‘325 patents, including any extensions, that Plaintiffs be awarded monetary damages for those infringing acts to the fullest extent allowed by law and be awarded prejudgment interest based on those monetary damages;
• That the case be deemed exceptional under 35 U.S.C. § 285;
• That the ‘703 patent remains valid and enforceable;
• That the ‘325 patent remains valid and enforceable; and
• That Plaintiffs be awarded reasonable attorney’s fees, costs and expenses.

Practice Tip: In March 2014, Lilly et al. filed a 101-page complaint making similar accusations against more than thirty defendants: Accord Healthcare, Inc. USA; Accord Healthcare, Inc.; Intas Pharmaceuticals Ltd.; Amneal Pharmaceuticals LLC; Amneal Pharmaceuticals of New York, LLC; Amneal Pharmaceuticals Co. India Pvt. Ltd.; Aurobindo Pharma Limited; Aurobindo Pharma USA Inc.; Dr. Reddy’s Laboratories, Ltd; Dr. Reddy’s Laboratories, Inc.; Glenmark Generics Inc., USA; Glenmark Generics Ltd.; Glenmark Pharmaceuticals Ltd.; Hetero USA Inc.; Hetero Labs Limited; Hetero Labs Limited Unit V; Hetero Drugs Ltd.; Mylan Pharmaceuticals Inc.; Mylan Inc.; Mylan Laboratories Limited; Par Pharmaceutical Companies, Inc.; Par Pharmaceutical, Inc.; Sun Pharma Global FZE; Caraco Pharmaceutical Laboratories, Ltd.; Sun Pharma Global Inc.; Sun Pharmaceutical Industries, Ltd.; Teva Pharmaceuticals USA, Inc.; Teva Pharmaceutical Industries, Ltd.; Watson Laboratories, Inc.; Actavis plc; Actavis, Inc.; Actavis Pharma, Inc.; Zydus Pharmaceuticals USA, Inc.; and Cadila Healthcare Ltd. d/b/a Zydus Cadila.

June 18, 2014

Indiana Trademark Litigation: Liquid Palace Sues E Liquid Palace for Trademark Infringement

By Overhauser Law Offices, LLC

New Albany, Indiana – Trademark attorneys for Liquid Palace, LLC and Robert W. Kaiser, Jr., both of New Albany, Indiana, filed an intellectual property lawsuit alleging that E Liquid Palace, LLC and Austin Simon, both of Jeffersonville, Indiana, and Russell Simon of Louisville, Kentucky infringed registered trademarks “Genie” and “Liquid Genie“, serial numbers 86107913 and 86107799 by using the registered trademark “Electric Genie“, serial number 86194345. This Indiana trademark litigation, initially filed in Indiana state court, was removed to the Southern District of Indiana.

Liquid Palace manufactures, distributes and sells electronic cigarettes, also known as e-cigarettes, and related products through brick-and-mortar and e-commerce channels. Liquid Palace indicates that it began conducting business on or around March 21, 2013. It claims that, in the next few days, it registered the domain name “liquidpalace.com” and began using the trademark “Liquid Genie” along with an accompanying image of a genie. Liquid Palace submitted applications for trademarks to the U.S. Patent and Trademark Office (“USPTO”) for the “Genie” and “Liquid Genie” word marks, with an accompanying image, in November 2013.

E Liquid Palace, which does business as “Electric Genie,” engages in a similar business approximately 6 miles from Liquid Palace’s retail store. Defendant Austin Simon is asserted to be the sole member of E Liquid Palace. On April 4, 2013, two weeks after Plaintiffs’ claimed business-opening date, Defendants submitted articles of organization to the Indiana Secretary of State to form E Liquid Palace, LLC, while Defendant Russell Simon is listed as the owner of the “Electric Genie” trademark.

Liquid Palace contends that it owns rights to the marks “Genie”, “Liquid Genie” and “Electronic Genie”. It claims that Defendants are using those marks and/or marks that are substantially similar. Liquid Palace asserts that these actions violate its trademark rights.

In its complaint, filed by trademark attorneys for Plaintiffs, the following counts are alleged:

• Count I: Violations of 15 U.S.C. § 1051 et seq.
• Count II: Common Law Trademark Infringement
• Count III: Intentional Interference with Prospective Business Advantage and/or Intentional Interference with Business Relationships
• Count IV: Unfair Competition
• Count V: Injunctive Relief

Plaintiffs seek damages, including compensatory and punitive damages; statutory and/or liquidated damages under 15 U.S.C. § 1051; interest; injunctive relief and costs and attorneys’ fees.

Practice Tip:

Plaintiffs may have a difficult case to prove. They claim that at “the time the Defendants’ submitted articles of organization for [E Liquid Palace], the Defendants knew or should have known that the Plaintiff’s [sic] claimed a right to use ‘Liquid Palace’ in its business operations and that the intentional registration of ‘E Liquid Palace, LLC’ would confuse and/or mislead the consuming public.” However, Plaintiffs’ entity, Liquid Palace, LLC, is shown on the website of the Indiana Secretary of State to have been created in Kentucky on April 9, 2013, after the creation of E Liquid Palace, LLC.

Moreover, given that E Liquid Palace, LLC is the Defendants’ legal name, not the name under which they present themselves to the public, Liquid Palace is going to have a hard time showing confusion in the marketplace resulting from any similarities between the legal names of the entities.

It will also be interesting to see how the court handles any competing rights conferred by the registration of the marks at issue, given that both Plaintiff(s) and Defendant(s) have rights in federally registered marks.

Finally, the core infringement standard for trademark law is the “likelihood of confusion” test. This test imposes liability if a substantial number of consumers are likely to be confused by a defendant’s use of a trademark in which the plaintiff in the litigation has intellectual property rights. Given the exceedingly short period of time for which Plaintiffs here claim exclusive use of any mark in question, proving that consumers have come to identify Plaintiffs’ marks exclusively with their goods will be challenging.

June 13, 2014

Indiana Intellectual Property Litigation: DirecTV Sues Alleging Illegal Satellite Signal Interception

By Overhauser Law Offices, LLC

Indianapolis, Indiana – An intellectual property lawyer for DirecTV, LLC of El Segundo, California has sued in the Southern District of Indiana alleging that Jeremy Jennings and Regal Enterprises, LLC d/b/a Ron-De-Voo Inn, all of Hagerstown, Indiana illegally utilized a satellite signal that had been licensed for residential service by displaying the satellite programming in a commercial establishment. DirecTV seeks declaratory and injunctive relief as well as damages for the improper receipt, transmission and exhibition of its satellite programming signals.

DirecTV distributes satellite programming throughout the United States. Through its operations, DirecTV provides this programming via specialized satellite-signal receiving equipment to subscribers who purchase a programming license by paying a subscription fee.

This intellectual property lawsuit was brought under the Cable Communications Policy Act of 1984, 47 U.S.C. §521, et seq., and 47 U.S.C. §605. The complaint alleges that Jennings, in his capacity as an owner and individual with close control over internal operating procedures of Regal Enterprises, LLC and Ron-De-Voo Inn willfully and unlawfully used a residential subscription to DirecTV in a commercial establishment. Jennings has been sued both individually and as an officer, director, shareholder, principal, manager and/or member of Regal Enterprises, LLC, which does business as Ron-De-Voo Inn.

The complaint, filed by an intellectual property attorney for DirecTV, cites three causes of action:

• Count One: Damages for Violations of Cable Communications Policy Act under 47 U.S.C. §605(e)(3)(c);
• Count Two: Damages for Violations of 18 U.S.C. §2511; and
• Count Three: Civil Conversion.

DirecTV asks for the following: a declaration that the defendants’ use of DirecTV was a violation of §2511 and §605, that such violations were willful and for the purpose of commercial advantage; an injunction against further violations; statutory damages under 18 U.S.C. §2511; statutory damages under 47 U.S.C. §605; punitive damages and costs, attorney’s fees and interest.

Practice Tip #1: DirecTV provides services to homes based on residential rates and to commercial establishments under commercial rates. Jennings and Regal Enterprises are accused of surreptitiously gaining access to DirecTV programming without proper authorization by subscribing to DirecTV services under a residential account and then installing/moving the equipment to the business establishment and utilizing the services, licensed at a residential rate, in a commercial environment.

Practice Tip #2: As part of its complaint, DirecTV claims that its goodwill and reputation have been usurped. It will be interesting to see what evidence it offers as proof that, as a result of allegedly receiving a lower monthly fee for the programming provided to the defendants – a circumstance, if true, presumably known to few other than Jennings – its goodwill or reputation have been impacted.

June 12, 2014

Indiana Intellectual Property Litigation: J & J Sports Sues Again Asserting Illegal Cable Signal Interception

By Overhauser Law Offices, LLC

Hammond, Indiana – An intellectual property attorney for J & J Sports Productions, Inc. (“J & J Sports”) of Campbell, California sued Sheila M. Kikalos individually and d/b/a Valla Del Sol a/k/a Villa Del Sol of Merrillville, Indiana in the Northern District of Indiana alleging the illegal interception and broadcast of Manny Pacqiao v. Timothy Bradley, WBO World Welterweight Championship Fight Program (the “Program”), which was telecast nationwide on June 9, 2012.

J & J Sports states that it is the exclusive domestic commercial distributor of the Program. It has sued Sheila M. Kikalos individually and d/b/a Villa Del Sol, under the Communications Act of 1934 and The Cable & Television Consumer Protection and Competition Act of 1992.

Specifically, Kikalos has been accused of violating 47 U.S.C. § 605 and 47 U.S.C. § 553 by displaying the Program without a commercial license on the day of its broadcast. Regarding the claim under 47 U.S.C. § 605, the complaint alleges that with “full knowledge that the Program was not to be intercepted, received, published, divulged, displayed, and/or exhibited by commercial entities unauthorized to do so, each and every one of the above named Defendants . . . did unlawfully intercept, receive, publish, divulge, display, and/or exhibit the Program” for the purpose of commercial advantage and/or private financial gain.

A count of conversion is also included in the complaint. It asserts that the alleged acts of interception and exhibition were “willful, malicious, egregious, and intentionally designed to harm Plaintiff J & J Sports” and that, as a result of being deprived of their commercial license fee, J & J Sports suffered “severe economic distress and great financial loss.”

As there appears to be no separate legal entity, the lone defendant is Kikalos, who has been named both individually and doing business as Villa Del Sol. As an individual, J & J Sports asserts that Kikalos is responsible for the alleged unlawful activity, contending that she had the right and ability to supervise the activities of the establishment. J & J Sports asserts that the activities that she supervised included the unlawful interception of Plaintiff’s program. J & J Sports contends that Kikalos specifically directed the employees of Villa Del Sol to unlawfully intercept and broadcast Plaintiff’s program at Villa Del Sol and Grill or, if she did not, that the actions of the employees of Villa Del Sol are directly imputable to Kikalos by virtue of her purported responsibility for the activities of the restaurant.

J & J Sports further asserts that Kikalos as an individual specifically identified on the liquor license for Villa Del Sol, had an obvious and direct financial interest in the activities of Villa Del Sol.

In the complaint, the intellectual property lawyer for J & J Sports listed the following counts and requests for redress:

• Count I: Violation of Title 47 U.S.C. § 605. For this count, J & J Sports requests (a) statutory damages for each willful violation in an amount to $100,000.00 pursuant to Title 47 U.S.C. 605(e)(3)(C)(ii), and (b) the recovery of full costs, including reasonable attorneys’ fees, pursuant to Title 47 U.S.C. § 605(e)(3)(B)(iii).
• Count II: Violation of Title 47 U.S.C. § 553. For this count, J & J Sports asks the court for (a) statutory damages for each violation in an amount to $10,000.00 pursuant to Title 47 U.S.C. § 553(c)(3)(A)(ii); (b) statutory damages for each willful violation in an amount to $50,000.00 pursuant to Title 47 U.S.C. § 553(c)(3)(B); (c) the recovery of full costs pursuant to Title 47 U.S.C. § 553 (c)(2)(C); and (d) and in the discretion of the court, reasonable attorneys’ fees, pursuant to Title 47 U.S.C. § 553 (c)(2)(C).
• Count III: Conversion. For this count, the court is requested to order both compensatory and punitive damages from Defendants as the result of the Defendants’ allegedly egregious conduct, theft, and conversion of the program and deliberate injury to J & J Sports.

Practice Tip #1: While on the surface this appears to be a copyright case, an allegation of interception under 47 U.S.C. § 605 is a different cause of action from copyright infringement. However, a suit alleging interception does not preclude an additional lawsuit alleging different causes of action. For example, the copyright holder can also sue for copyright infringement, which could increase damages by as much as $150,000.

Practice Tip #2: As part of its complaint, J & J Sports claims that the Kikalos’ actions have subjected them to “severe economic distress and great financial loss.” It will be interesting to see what evidence it offers as proof that, as a result of allegedly not receiving its full commercial fee for the programming purportedly displayed by the Kikalos – a circumstance, if true, presumably known to few other than the Kikalos herself – it has suffered severe economic distress and great financial loss.

June 11, 2014

Indiana Copyright Litigation: Malibu Media Sues Nine Additional “John Does” Asserting Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Nine copyright infringement lawsuits have been filed in the Southern District of Indiana on behalf of Malibu Media, LLC of Los Angeles, California. The lawsuits assert that nine separate unidentified defendants, each identified with only “John Doe” and an internet protocol address, infringed Malibu Media’s copyrighted works.

Frequent copyright litigator Paul Nicoletti has filed another set of copyright infringement complaints in Indiana federal court. The complaints, filed on behalf of adult-content purveyor Malibu Media, assert infringement of the company’s intellectual property. In this latest round, Malibu Media submitted nine new and nearly identical lawsuits for adjudication in the Southern District of Indiana against nine anonymous John Doe defendants. The defendants allegedly used the BitTorrent file-sharing protocol to illegally download, copy and distribute elements of various works of Malibu Media’s copyrighted material. As with all of Malibu Media’s complaints, the copyrights-in-suit cover pornographic videos.

Malibu Media seeks a permanent injunction barring the defendants from engaging in infringing activities; an order by the court that infringing materials be removed from all computers of each defendant; a separate award of statutory damages for each work found to have been infringed and reasonable attorneys’ fees and costs.

Practice Tip: Defendants who fail to appear run a significant risk of having a default judgment entered against them. There is a significant disparity in the dollar amount awarded in default judgments against defendants in copyright infringement cases involving BitTorrent. In two separate cases, Judge William T. Lawrence ordered defendants who failed to appear to pay $20,000 for the copyright infringement that was deemed to have been admitted by the defendants’ failure to defend against the allegations. See here and here. However, in a similar case, Judge Jane Magnus-Stinson ordered an entry of default judgment against a defendant for $151,425, the full amount requested.

Overhauser Law Offices, the publisher of this website, has represented several hundred persons and businesses regarding copyright infringement and similar matters.

June 9, 2014

J & J Sports Sues Yeakle’s Sports Bar and Grill Alleging Illegal Cable Signal Interception

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – An intellectual property attorney for J & J Sports Productions, Inc. of Campbell, California has sued in the Northern District of Indiana alleging that Wesley Yeakle individually and d/b/a Yeakle’s Sports Bar and Grill; and Yeakle’s Sports Bar and Grill, Inc. d/b/a Yeakles Sports Bar and Grill, both of Marion, Indiana, illegally intercepted and televised Manny Pacquiao v. Timothy Bradley WBO Welterweight Championship Fight Program (the “Program”), which was telecast nationwide on Saturday, June 9, 2012.

J & J Sports states that it is the exclusive domestic commercial distributor of the Program. It has sued Yeakle’s Sports Bar and Grill, Inc., as well as Wesley Yeakle as an individual, 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 without a commercial license on the day of its broadcast. Regarding the claim under 47 U.S.C. § 605, the complaint alleges that with “full knowledge that the Program was not to be intercepted, received, published, divulged, displayed, and/or exhibited by commercial entities unauthorized to do so, each and every one of the above named Defendants . . . did unlawfully intercept, receive, publish, divulge, display, and/or exhibit the Program” for the purpose of commercial advantage and/or private financial gain.

A count of conversion is also included in the complaint. It asserts that Defendants’ acts were “willful, malicious, egregious, and intentionally designed to harm Plaintiff J & J Sports” and that, as a result of being deprived of their commercial license fee, J & J Sports suffered “severe economic distress and great financial loss.”

In addition to naming the separate legal entity, Yeakle’s Sports Bar and Grill, Inc., which apparently owns the restaurant, Plaintiff has also sued Yeakle alleging that he had the right and ability to supervise the activities of the establishment. J & J Sports asserts that the activities that he supervised included the unlawful interception of Plaintiff’s program. J & J Sports contends that Yeakle specifically directed the employees of Yeakle’s Sports Bar and Grill to unlawfully intercept and broadcast Plaintiff’s program at Yeakle’s Sports Bar and Grill or, if he did not, that the actions of the employees of Yeakle’s Sports Bar and Grill are directly imputable to Yeakle by virtue of his purported responsibility for the activities of the restaurant.

Yeakle has also been named individually as a result of J & J Sports’ contention that he is a managing member of Yeakle’s Sports Bar and Grill, Inc. J & J Sports further asserts that Yeakle, as an individual specifically identified on the liquor license for Yeakle’s Sports Bar and Grill, had an obvious and direct financial interest in the activities of Yeakle’s Sports Bar and Grill.

In the complaint, the intellectual property lawyer for J & J Sports listed the following counts and requests for redress:

• Count I: Violation of Title 47 U.S.C. § 605. For this count, J & J Sports requests (a) statutory damages for each willful violation in an amount to $100,000.00 pursuant to Title 47 U.S.C. 605(e)(3)(C)(ii), and (b) the recovery of full costs, including reasonable attorneys’ fees, pursuant to Title 47 U.S.C. § 605(e)(3)(B)(iii).
• Count II: Violation of Title 47 U.S.C. § 553. For this count, J & J Sports asks the court for (a) statutory damages for each violation in an amount to $10,000.00 pursuant to Title 47 U.S.C. § 553(c)(3)(A)(ii); (b) statutory damages for each willful violation in an amount to $50,000.00 pursuant to Title 47 U.S.C. § 553(c)(3)(B); (c) the recovery of full costs pursuant to Title 47 U.S.C. § 553 (c)(2)(C); and (d) and in the discretion of the court, reasonable attorneys’ fees, pursuant to Title 47 U.S.C. § 553 (c)(2)(C).
• Count III: Conversion. For this count, the court is requested to order both compensatory and punitive damages from Defendants as the result of the Defendants’ allegedly egregious conduct, theft, and conversion of the program and deliberate injury to J & J Sports.

Practice Tip #1: A recent complaint filed by a different intellectual property attorney for J & J Sports deviated from the standard format of J & J Sports’ complaints. The standard format, as is demonstrated in this complaint, includes a count of conversion. It also asserts Counts I and II as additive. However, the other complaint omitted the count of conversion and listed Counts I and II in the alternative. It will be interesting to see whether the differences between these pleadings results in different rulings by the Northern District of Indiana.

Practice Tip #2: J & J Sports has sued two entities: a legal entity which appears to be incorporated and an individual who is apparently an owner of that company. While corporations are intended to limit the liability of the principals, they are not always successful in doing so. Where a principal is personally involved in certain types of illegal activity, legal mechanisms (such as a corporation or a limited liability company) that are designed to shield that individual from liability may fail to do so.

Practice Tip #3: J & J Sports is a frequent litigant. While the fight programs at issue in its intellectual property lawsuits vary, with few exceptions, the complaints are otherwise almost identical. As is sometimes also the case with others utilizing this template approach to drafting multiple similar complaints, this standardized method of litigation resulted in several errors in this complaint drafted for J & J Sports. For example, the date of the program over which this federal lawsuit was initiated is listed incorrectly at least four times (listed variously as “Saturday [sic], June 6, 2012,” “June 6, 2012″ and May 7, 2011.”)

June 4, 2014

Indiana Trademark Litigation: Harmony School Sues School Reform Initiative

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana trademark attorneys for Harmony School Corporation (“Harmony”) of Bloomington, Indiana, filed a trademark infringement lawsuit in the Southern District of Indiana alleging, inter alia, that School Reform Initiative, Inc. (“SRI”) of Lakewood, Colorado infringed its service mark “Critical Friends Group,” Trademark Registration No. 2,925,985, which has been registered with the United States Trademark Office.

Established in 1974, Harmony is an Indiana non-profit corporation that seeks “to prepare young people to live in and contribute to a heterogeneous democratic country.” Among its programs is its National School Reform Faculty (“NSRF”), a program designed to develop skills in teachers that will then enable children to learn more effectively. Harmony claims ownership of a service mark in “Critical Friends Group,” as used in connection with providing training in the field of improving teaching skills. “Critical Friends Group” is also referred to as CFG. In addition to the rights conferred by federal registration, Harmony asserts common law trademark rights in the marks through actual use in interstate commerce beginning no later than 2000 and continuing since.

Defendant SRI is also a non-profit organization. It is dedicated to creating transformational learning communities committed to educational equity and excellence. Harmony asserts that SRI is a direct competitor in the business of professional development within the field of education. SRI is accused of having infringed marks belonging to Harmony.

Gene Thompson-Grove is asserted to have worked for Harmony from 2000 to 2009. During that time, Harmony claims that Thompson-Grove was actively involved in Harmony’s use and federal registration of the Critical Friends Group mark. Harmony also contends that, immediately after discontinuing her work for Harmony, Thompson-Grove began working with SRI. Harmony indicates that, around this time, the alleged infringement of the Critical Friends Group and CFG marks began.

In March 2014, Harmony demanded that SRI cease and desist using the Critical Friends Group mark. It claims that infringement continued.

In this Indiana trademark lawsuit, Harmony accuses SRI of having willful intent to deceive the public as to the ownership of the mark, the source of the services, or both. It states that it has incurred substantial damages and irreparable injury as a result of SRI’s alleged infringement. In its complaint, filed by Indiana trademark lawyers, Harmony asserts the following causes of action:

• Federal Trademark Infringement in Violation of § 32 of the Lanham Act
• Unfair Competition in Violation of § 43(a) of the Lanham Act
• Common Law Trademark Infringement
• Common Law Unfair Competition

Harmony asks the court for injunctive relief, including the destruction of materials determined to be infringing and removal of infringing marks from digital media; damages, including treble damages to reflect the deliberateness and willfulness of SRI’s actions; costs and attorneys’ fees.

Practice Tip: There used to be an unspoken rule that organizations operated with the primary objective of public service ought to go out of their way to “get along” with similar organizations. That notion seems to be dissipating. Instead, trademark infringement litigation and other legal disputes between non-profit organizations, once relatively rare, have increased in recent years. Among the organizations issuing cease-and-desist letters and/or initiating intellectual property litigation are some of the largest non-profit organizations in the United States: Susan G. Komen, the Lance Armstrong Foundation and Wounded Warrior Project.

May 30, 2014

Indiana Copyright Litigation: J & J Sports Sues Estrella for Unlawful Interception and Broadcast

By Overhauser Law Offices, LLC

Hammond, Indiana – A copyright attorney for J & J Sports Productions, Inc., of Campbell, California filed an intellectual property lawsuit in the Northern District of Indiana alleging that Melissa Estrella a/k/a Melissa Barnett, a/k/a Melissa White of Calumet City, Illinois individually and d/b/a Estrellas Sports Bar, located in Hammond, Indiana, unlawfully intercepted and exhibited the “Ruiz/Hamer” broadcast.

J & J Sports states that it is licensed as a distributor of the “Ruiz/Hamer” broadcast. It has sued Melissa Estrella individually and doing business as Estrellas Sports Bar (“Estrellas”) under the Federal Communications Act and The Cable & Television Consumer Protection and Competition Act.

Specifically, Ms. Estrella has been accused of violating 47 U.S.C. § 605 and 47 U.S.C. § 553 by displaying the “Ruiz/Hamer” broadcast on November 23, 2013 without a commercial license. Regarding the claim under 47 U.S.C. § 553, the complaint alleges that with “with full knowledge that the Broadcast was not to be received and exhibited by entities unauthorized to do so, Defendant … did exhibit the Broadcast … willfully and for purposes of direct or indirect commercial advantage or private financial gain.”

As the establishment is apparently not a separate legal entity, the only Defendant is Ms. Estrella. The allegations against her include that she had the right and ability to supervise the activities of Estrellas Sports Bar. J & J Sports asserts that those activities included the unlawful interception of its program.

J & J Sports also contends that Ms. Estrella specifically directed the employees of the establishment to unlawfully intercept and broadcast J & J Sports’ program at Estrellas or, if she did not, that the actions of the employees of Estrellas are directly imputable to Ms. Estrella by virtue of her purported ownership of and responsibility for the activities of Estrellas.

J & J Sports also asserts that Ms. Estrella advertised the exhibition of J & J Sports’ program and collected a cover charge of $5 per person on the night of the alleged illegal acts. This accusation, in conjunction with her purported ownership of the establishment, prompted J & J Sports to assert that Ms. Estrella had an obvious and direct financial interest in the activities of Estrellas and received a benefit from the operations of Estrellas on November 23, 2013.

In the complaint, the intellectual property lawyer for J & J Sports asks for injunctive relief. The following counts and requests for redress are also listed:

• Count I: Violation of Title 47 U.S.C. Section 605. For this count, J & J Sports requests (a) statutory penalties for each willful violation in an amount up to $110,000.00 pursuant to Title 47 U.S.C. 605(a), and (b) the recovery of full costs, including reasonable attorneys’ fees, pursuant to Title 47 U.S.C. § 605(e)(3)(B)(iii), or, in the alternative,
• Count II: Violation of Title 47 U.S.C. Section 553. For this count, J & J Sports asks the court for (a) statutory damages for each violation in an amount to $60,000.00 pursuant to Title 47 U.S.C. § 553; (b) the recovery of full costs pursuant to Title 47 U.S.C. § 553 (c)(2)(C).

Practice Tip #1: Among its assertions of wrongdoing, J & J Sports has alleged interception of the Program under 47 U.S.C. § 605, which is a different cause of action from copyright infringement.

Practice Tip #2: When Congress passed the Cable Communication Act, a statute of limitations was not included. Some federal courts have determined that a two-year statute of limitation is appropriate while other federal courts have used a three-year statute of limitations. Unlike some plaintiffs in similar lawsuits, who have filed late enough to risk running afoul of the statute of limitations, J & J Sports filed in a relatively short period of time following the alleged wrongdoing.

Practice Tip #3: Previous similar complaints filed by J & J Sports have also included a count of conversion. That count typically asserted that Defendants’ acts were “willful, malicious, egregious, and intentionally designed to harm Plaintiff J & J Sports” and that, as a result of being deprived of their commercial license fee, J & J Sports had suffered “severe economic distress and great financial loss,” an expansive proposition that we have in the past posited might be difficult to prove. Perhaps those difficulties explain the absence of this count in the current complaint. Counts I and II have also been modified. Previous complaints had asserted these counts as additive, while this complaint lists them in the alternative.

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