Articles Posted in New Litigation

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Indianapolis, IN – Copyright lawyers for Broadcast Music, Inc. (“BMI”), of New York, NY and BMILogo.JPGeight other plaintiffs have sued VAT, Inc. (“VAT”) d/b/a Carey Tavern and its owners, Matthew and Valerie Schachte of Westfield, IN, for copyright infringement in the Southern District of Indiana.

In its complaint, BMI states that it has been granted the right to license the public performance rights of more than seven million copyrighted musical compositions, including the compositions at issue.  The other plaintiffs are the owners of the copyrighted music that was allegedly infringed and include such artists as Thumbnail image for Thumbnail image for Thumbnail image for DollyPartonPic.JPGDolly Parton, via her sole proprietorship Velvet Apple Music, and R.E.M., via Night Garden Music, a division of R.E.M./AthensREMLogo.JPG LTD.  Also plaintiffs in this case are: Sony/ATV Songs, LLC d/b/a Sony/ATV Tree Publishing, Moebetoblame Music, Sony/ATV Songs LLC, ECAF Music, Blues Traveler Publishing Corporation, and Universal Music-Z Tunes LLC d/b/a Universal Music Z Songs.

The suit, brought under The Copyright Act, alleges that the defendants infringed multiple songs in BMI’s repertoire by performing the copyrighted songs and/or causing the copyrighted songs to be performed publically in Carey Tavern.  It alleges thatSonyATVMusicPublishingLogo.JPG there were seven instances of infringement, with each artist-plaintiff having at least one copyrighted song infringed by the defendants. 

Plaintiffs allege that VAT has a direct financial interest in Carey Tavern, as do Matthew and Valerie Schachte.  Further, it is alleged that Matthew and Valerie Schachte are officers of VAT, with primary responsibility for the operation, management and supervision of the activities of VAT.

The plaintiffs claim that further acts of infringement will injure them irreparably and ask that the court enjoin the defendant from committing further acts of infringement.  The plaintiffs also seek statutory damages pursuant to 17 U.S.C. §504(c) and costs, including reasonable attorneys’ fees.

Practice Tip #1: BMI has a history of actively pursuing litigation in cases where copyrighted songs were performed in bars or restaurants without authorization.

We have previously blogged about BMI:

–        BMI Sues Indianapolis Bar for Copyright Infringement of Honky Tonk Women

–        BMI Sues Elkhart Bar for Copyright Infringement of Achy Breaky Heart and Other Songs

–        BMI Sues Fishers Bar for Copyright Infringement of Counting Crow’s Mister Jones and Other Songs

–        Broadcast Music, Inc. et al Sues Bertee’s Inc. et al for Copyright Infringement of Musical Composition

–        BMI Sues Diamond Investments Inc. D/B/A The Juke Box Live for Copyright Infringement of Eight Songs

–        BMI Sues Olive’or Twist Bar for Copyright Infringement of Unlicensed Performance of Five Songs

–        BMI sues Shenanigans for Infringement of Song Copyrights

–        BMI Sues R House of Brews for Musical Composition Copyright Infringement

–        BMI Sues Bugsy’s Entertainment Group for Copyright Infringement

Practice Tip #2:  The plaintiffs have sued not only the business entity but also its two owners as individuals.  Copyright laws allow an officer of a corporation to be held liable for the corporation’s copyright infringement if the officer contributes to the infringement by inducing or encouraging the infringement.  An officer can also be liable for copyright infringement if the officer supervises the infringing conduct and has a direct financial benefit from the infringement.

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Hammond, IN – Unverferth Manufacturing Company, Inc. of Kalida, OH has filed suit against Par-Kan Company of Silver Lake, IN for the infringement of United States Patent No. 8,221,047, which has been registered by the USPTO.

Unverferth.JPGPatent attorneys for Unverferth Manufacturing Company, Inc. filed a civil suit in Northern District of Indiana alleging that Par-Kan Company infringed, and continues to infringe, upon Unverferth’s patented seed tender products, including its “Seed Weigh” product.  Unverferth alleges that Par-Kan has engaged in both the “unauthorized, infringing manufacture, use, importation, sale and/or offer for sale” of the product and inducing others to infringe.

Unverferth further alleges that the infringing behavior continued after Par-Kan was notified of the infringement and, as such, some or all of the infringement was willful.

Par-Kan.JPGUnverferth asks for preliminary and permanent injunctions, for lost profits in an amount no less than a reasonable royalty, and that such damages be trebled.  It also seeks a judgment that the case is “exceptional,” and that, as such, it is entitled to all costs and expenses of the action, including reasonable attorneys’ fees.

Practice Tip: If a court finds that a patent has been infringed upon, it may then consider the additional issue of whether the infringement was willful.  Infringing behavior that continued despite an allegation of infringement can support such a finding.  The determination that an infringement was “willful” can, in turn, increase damages significantly.
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Indianapolis, IN – Commercial Recovery Corporation of Blaine, MN has filed a patent infringement suit in the Southern District of Indiana against American Financial Credit Services, Inc. for infringement of U.S. Patent No. 7,167,839 (“the ‘893 Patent”) which has been registered by the U.S. Patent Office.  

Patent attorneys for Commercial Recovery Corporation filed this suit, the latest of six patent suits filed by the Plaintiff since September 2011, alleging infringement of their patented “Collection Agency Data Access Method.”  This patent protects a data-access method which allows secure access to an account database, such as the account database of a collection agency, via a network by affiliated agencies and clients. 

Plaintiff alleges that American Financial Credit Services, Inc. has infringed and continues to infringe on the Plaintiff’s patent by, among other ways, providing clients of collection agencies with secure access to client accounts using methods that infringe on the Patent.  Plaintiff seeks remedies that include an injunction, treble damages, attorneys’ fees and costs. 

Practice Tip: Patents are not granted solely on physical inventions but also on innovations in, among other things, a process or a method.  If you are uncertain whether a process your business utilizes is patented, consult an experienced patent attorney.

 

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South Bend, IN – Patent attorneys for Engineered Solutions, L.P.of Mishawaka, IN has filed suit against AL-KO KOBER, LLC of Elkhart, IN for infringement of PatentPDF.JPGU.S. Patent No. 6,681,531, issued by the US Patent Office. The plaintiff claims that the AL-KO Kober offers for sale an above-floor, slide-out actuating mechanism for RVs that infringes Plaintiff’s ‘531 patent.

This case has been assigned to Chief Judge Philip P. Simon and Magistrate Judge Christopher A Nuechterlein of the Northern District of Indiana, and assigned Case No. 3:13-cv-00051-PPS-CAN.

Further Information about the case is as follows:

Plaintiff: Engineered Solutions LP
Defendant: Al-Ko Kober LLC
Case Number: 3:2013cv00051
Filed: January 24, 2013
Court: Indiana Northern District Court
Office: South Bend Office
County: St. Joseph
Presiding Judge: Philip P Simon
Referring Judge: Christopher A Nuechterlein
Nature of Suit: Intellectual Property – Patent
Cause: 35:271
Jurisdiction: Federal Question
Jury Demanded By: Plaintiff

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Indianapolis, IN – Attorney and self-proclaimed professional photographer Richard N. Bell, suing on his own behalf, filed two separate complaints alleging copyright infringement and unfair competition under the Copyright Act and conversion under Indiana statutory law as a result of the unauthorized use of a photograph he had taken and which had been registered with the United States Copyright Office. Bell is seeking damages, injunctive relief and a declaratory judgment. Mr. Bell has been disciplined by the Indiana Supreme Court for violating the Rules of Professional Responsibility. (See Disciplinary Action here.)

In the first complaint, filed January 4, 2013, Bell named twenty-five separate Defendants: Greg Bayers, LLC; Leppart Associates; crazy-frankenstein.com; Hometown Rentals; Frank Kirchner; Brent Bythewood; Pixmule.com; InternMatch; Team Champion; Electraproducts; Alex Bruni; Mark Groff; Greatimes Family Fun Park; Peter Brzycki; Tom Kelly; Relociti.net; gerberbabycontest.net; MerchantCircle, Inc; Amber Russell; WSBT, Inc.; Delia Askew; Intercontinental Industries; The Friedman Foundation for Educational Choice; Linen Finder, Inc.; and Radio One of Indiana.

In the second complaint, filed January 8, 2013, Bell named the remaining forty-eight Defendants: Jerry Gordon; Demand Media, Inc.; Bryce Welker; Royal Corniche Travel Ltd.; VRBO.com, Inc.; Experience Credit Unions, LLC; Jaclothing.com; Glacier International; ABNHotels.com; 1&1 Internet, Inc.; Conde Nast Digital; Flixter, Inc.; Financing-USA.com; SodaHead, Inc.; NuMedia Marketing, Inc.; Jynell Berkshire; Tzvetelin Petrov; Los Pentecostales del Area de la Bahia; 10Best, Inc.; Keyes Outdoor Advertising; Zoom Communications Inc.; Christine Nevogt; Zarzar, Inc.; Hydro-Gear; Tam T. Dang; Lon Dunn; William McLaws, Trustee; Natl-electronic Residential Payment History Recording Agency; CVI; Constant Contact, Inc.; Charles Lantz; Schumacher Cargo Logistics; Eventbrite, Inc.; Celebrity Entertainment Corp.; Association of Equipment Manufacturers; Yardi Systems Inc.; DiamondIndyLimo.com; Marcelo Santos; National Rural Recruitment & Retention Network; Anbritt Stengele; Pinnacle Sports Equipment, Inc.; Marygrove College; RunAnyCity.com; Buzzle.com, Inc.; Charles Onuska; University of Indianapolis; and PersephoneMagazine.com.

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Fort Wayne, IN – Copyright attorney Paul Nicoletti filed a lawsuit on behalf of Malibu Media in the Northern District of Indiana alleging copyright infringement of the pornographic movie “Romantic Memories.” It alleges the infringement occurred by downloading it using the Internet file sharing “bittorrent” protocol. The suit was against 14 as-yet-unnamed Indiana Defendants, John Does 1-14. “Romantic Memories” had been coded with a “Unique Hash Number,” and upon investigation, 14 Internet Protocol (“IP”) addresses were identified. Upon receiving permission from the court, Plaintiff served third party subpoenas on two Internet Service Providers (“ISPs”) to discover the names and other contact information of each Defendant.

Defendant John Doe No. 12, acting pro se, filed a Motion to Dismiss or Sever for Misjoinder and to Quash Plaintiff’s Subpoena. The court rejected the Motion to Dismiss on a technicality, noting that under local rules motions must be filed separately, and denied the Motions for Severance and to Quash.

Doe No. 12’s Motion to Quash under Fed. R. Civ. P. 45(a) argued that there was no evidence that any improper use of his IP address would be sufficient to support an assertion that he was responsible for such misuse. The Court acknowledged that Doe No. 12 had standing to object to the subpoena on the grounds that it would implicate his privacy interest. However, it went on to reject his argument as a mere denial of liability and not relevant to a Motion to Quash. Doe No. 12 further asserted that the subpoena should be quashed as a burden on his ISP. The court found that argument unpersuasive as 1) the subpoena would not burden Doe No. 12 personally and 2) Rule 45 only requires a court to quash a subpoena when it subjects a person to an undue burden. Fed. R. Civ. P. 45(c)(3)(A)(iv). Further, the court held that no exception for privilege was applicable, as courts have consistently held that “there is no expectation of privacy in Internet subscriber information because it has already been exposed to a third party, the Internet Service Provider.”

Doe No.12’s Motion to Sever under either Federal Rule of Civil Procedure 20 or 21 argued, that there was no single transaction or series of transactions as is required for permissive joinder. Courts across the country are split regarding whether joining anonymous defendants alleged to have participated in a single BitTorrent “swarm” in a single suit is appropriate. The court here allowed joinder as the Plaintiff alleged a set of facts sufficient to support a finding that the separate actions were part of the same series of transactions, noting that the file sharing protocol required each participant to send and receive portions of the work in order to download and view the entire work. The second requirement for joinder under Rule 20, a “common question of law or fact,” was sufficiently pled by the Plaintiff’s assertion, without exception, of the same counts of copyright infringement against all Defendants. Discretionary severance under Rule 21 was also denied as unnecessarily cumbersome at this stage of the litigation.

Finally, the court issued a warning to plaintiffs in situations such as these, stating that “the litigation strategy Plaintiff has employed in this case has a history of becoming abusive and potentially giving rise to sanctions under Rule 11.” The court further cautioned plaintiffs against improperly leveraging a defendant’s reluctance to have his identity revealed to coerce a settlement.

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Fort Wayne, IN – Three Rivers Archery Supply, Inc. of Ashley, Indiana, along with Dale and Sandra Karch, have filed a trademark infringement 3Rivers.JPGsuit against Parker Compound Bows, Inc. of Virginia. The suit alleges infringement of the mark TOMAHAWK BOWS, Registration No. 3, 156,258 issued by the US Trademark Office. The plaintiff claims that Parker has been distributing crossbows using the name TOMAHAWK, which infringes their products and could be confusing to the public.”

Practice Tip: The complaint does not appear to allege sufficient facts that would give the court personal jurisdiction over the defendant Parker. It merely alleges, “On information and belief, Parker has been conducting continuous and systematic business by marketing and selling infringing bows and related materials and equipment within the State of Indiana and within the Northern District of Indiana.” It is also curious that the TOMAHAWK registration is owned by Dale and Sandra Karch individually, yet the complaint alleges that they do not sell bows – only Three Rivers Archery is alleged to sell bows.

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Indianapolis IN – Copyright lawyers for CP Productions, Inc. of Phoenix, AZ filed a copyright infringement declaratory judgment suit in alleging John Doe, an alleged serial infringer known at this time only by an IP address, infringed the copyrighted work “GH Hustlers – Maryjane’s Second Visit” which has been registered by the US Copyright Office.

In the complaint filed by attorneys for CP Productions, John Doe and other un-named parties are believed to have infringed a copyrighted video belonging to CP Productions. CP Productions is a producer of adult entertainment and seeks judgment against John Doe and others for the alleged serial infringement of the video “GH Hustlers–Maryjane’s Second Visit” to which the Plaintiff owns the copyright. John Doe and the joint tortfeasers are not known by name but rather, through their IP address and attorneys for CP Productions will be filing a Motion for Leave to Take Discovery in order to ascertain the actual identities of the Defendants from their ISPs. CP Productions is seeking judgment from counts including copyright infringement, civil conspiracy, and contributory infringement. CP Productions claims to have observed John Doe’s infringing multiple copyrighted content through agents the Plaintiff has employed using the BitTorrent protocol because the Plaintiff employs P2P netword forensic software to provide real time monitoring of the BitTorrent swarm that distributes the video. This software allowed CP Productions to log John Doe and the joint tortfeasers unlawful activities. CP Productions further alleges that John Doe and the joint tortfeasers intentionally downloaded a torrent file particular to the Plaintiff’s video, purposefully uploaded the torrent into their BitTorrent clients and entered a BitTorrent swarm particular to the Plaintiff’s video and reproduced and distributed the copyrighted video among themselves and third parties thereby becoming both and uploader and downloader of the video. By doing so, CP Productions claims that this “ever growing swarm will jointly contribute to the complete download of the Video for all individuals that enter the swarm at any given moment.” CP Productions believes that this lawsuit is the only practical means by which to combat BitTorrent based infringement. Because the damage claimed by CP Prodcutions includes economic and reputation losses, to which Plaintiff asserts will continue, the Complaint sets out demand for actual or statutory damages allowed under the Copyright Law, compensatory damages for the counts of civil conspiracy and contributory infringement, and an order or impoundment for all copies of Plaintiff’s works, photographs or other materials in the Defendant’s possession or control.

Practice Tip: The BitTorrent protocol is a decentralized method that allows users to distribute data via the Internet, and has become an extremely popular method for unlawful copying, reproducing and distributing files in violation of the copyright laws. Where this market was once consumed by music copyright violations, the adult entertainment industry has seen an increase in litigation against infringers using BitTorrent-based technology. Although no concrete rules govern jurisdiction of the Internet, Indiana’s long arm statute (Indiana Rule of Trial Procedure 4.4) permit personal jurisdiction of Defendants if they either downloaded or uploaded the copyrighted material.

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Indianapolis; IN – Patent attorneys for Michael Ware, President of SCR Solutions of Madison, Indiana filed a patent infringement suit in alleging H2O Underpressure, Inc., of Dale, Wisconsin infringed provisional patent application no. 61,633,642, MANUAL SCR CATALYST CLEANING METHOD which has been filed with the US Patent Office.

On May 11, 2012, Michael Ware, President of SCR Solutions, filed the Complaint pro se against H20 Underpressure for willful patent infringement. The Complaint alleges that H2O Underpressure infringed, and continues to do, the Manual SCR Catalyst Cleaning Method by using it and selling it to the Duke Energy East Bend Power Plant in Union, Kentucky. SCR Solutions is also alleging that H20 Underpressure had previous knowledge of the ownership of the patent pending process and “conspired to steal and use so without written agreement or intention to compensate the owner” for the sale and use of the Manual SCR Catalyst Cleaning Method. SCR solutions claims to have complied with the statutory requirement of placing notice of the patent on all Manual SCR Catalyst Cleaning Method sells and also giving H2O Underpressure written notice of the infringement. SCR Solutions is seeking to enjoin H2O underpressure from using and selling the Manual SCR Catalyst Cleaning Method by demanding a preliminary and permanent injunction against the continuing infringement and damages.

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Indianapolis; IN – Trademark attorneys for App Press, LLC of Indianapolis, Indiana filed a declaratory judgment suit seeking a declaration that it is not infringing the trademarks of Apress Media, LLC of New York, New York.

App Press, LLC brings action against Apress Media, LLC in order to protect the right to use and continue to conduct business under the registered trademark, and asserts that use of the mark for App Press does not infringe on any trademark held by Apress. App Press is a company that creates, owns, and licenses the use of web-based software that allowsapp_press_picb.jpg consumers to create apps that can be used on mobile devices. According to the Complaint, App Press applied for trademark registration on January 7, 2011 and was registered by the United State Patent and Trademark Office on August 9, 2011. During this period, the trademark was open to opposition on May 24, 2011. Apress Media is a publishing company that edits, publishes and sells books with the focus on technological issues and how-to advice. Apress Media applied for trademark registration on May 7, 2010 and was registered on March 8, 2011. According to App Press, on August 15, 2011, Apress Media sent a cease and desist letter demanding App Press immediately stop the use of their trademark alleging that it infringed on the trademark of Apress and constituted trademark infringement, unfair competition, cyberpiracy and dilution. App Press claims that they forwarded the letter to their counsel who contacted Apress Media’s counsel by phone. Almost two weeks passed that counsel for both parties went back and forth via telephone before they were able to confer regarding the issues set forth in the letter in which App Press agreed and sent a letter describing their product and why it was not infringing on Apress Media’s trademark. Approximately eight months later, on May 8, 2012, Apress again contacted App Press and again asserted that App Press’s use of the App Press trademark was infringing on the Apress trademark. Counsel for App Press has filed the Complaint for declaratory relief and to obtain declaration that App Press’s use of their trademark does not infringe upon any trademarks owned by Apress Media.

Practice Tip: The remedy of declaratory judgment is found in 28 U.S.C.A. § 2201 and allows for any US court to declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.
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Contact Information
Indiana Intellectual Property: IP Litigation, Patents, Trademarks, Copyrights
  • Seventh Circuit
  • Northern District of Indiana
  • Southern District of Indiana
Paul B. Overhauser
Overhauser Law Offices, LLC
Greenfield
18 E Main St #202
Greenfield, IN 46140
Phone: 317.467.9100
Fax: 866.283.8549
Indianapolis
101 W Ohio St #2000
Indianapolis, IN 46204
Phone: 317.891.1500
Fax: 866.283.8549

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