Articles Posted in New Litigation

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Indianapolis; IN – Trademark attorneys for Dillinger, LLC of Mooresville, Indiana filed a complaint for injunctive relief and damages in alleging The Pour House on Lincoln, Inc. d/b/a Dillinger’s Chicago Bar & Grill, Inc. of Chicago, Illinois infringed trademark registration nos. 3,483,359 for the mark DILLINGER’S and no. 4,091,160 for the mark PUBLIC ENEMY which have been registered by the US Trademark Office.

Dillingers.jpgDillinger, LLC is owned and operated by Jeff Scalf and, according to the Complaint, is the descendant of gentleman bandit John Dillinger. Dillinger, LLC owns numerous trademark registrations for DILLINGER, JOHN DILLINGER, PUBLIC ENEMIES, and many other trademarks related to the life of John Dillinger. Dillinger, LLC is also the owner of all rights, title, and interest to both DILLINGER’S and PUBLIC ENEMIES and both marks have been used in interstate commerce in connection with restaurant and bar services as early as 2002. According to the Complaint, Dillinger, LLC has never authorized The Pour House on Lincoln d/b/a Dillinger’s Chicago Bar & Grill to use the DILLINGER or PUBLIC ENEMIES marks in any way and also alleges that in July 2010 it came to their attention that the Defendants were operating a restaurant using the DILLINGER and PUBLIC ENEMIES trademarks. Upon their knowledge of the trademark usage, Dillinger, LLC alleges that The Pour House was contacted about the infringement and in August of the same year they traveled to Indianapolis for the purpose of obtaining a license for the use of the trademarks. The Complaint states that an oral agreement was reached and reduced to writing, but never executed and yet The Pour House willfully continued its infringing usage of the DILLINGER and PUBLIC ENEMIES trademarks, specifically on their website, food and drink menus and the menus posted on the storefront. Dillinger, LLC asserts five counts for the violations of the defendants, including demand for preliminary and permanent injunction; federal trademark infringement; cybersquatting; false designation of origin, false descriptions and unfair competition; and dilution by blurring. In order to avoid any irreparable harm from the loss of reputation the DILLINGER names could suffer as a result of the unauthorized use of the trademarks and the accrual thereof, Dillinger, LLC is seeking to permanently enjoin The Pour House from using the DILLINGER and PUBLIC ENEMIES trademarks or inducing such belief, actual damages suffered as a result of the alleged trademark violations, statutory and exemplary damages, and the profits derived from the infringing activities.

Practice Tip: U.S.C. title 15, chapter 22 governs trademarks, and §1117 specifically details the relief which can be granted as a result of trademark violation.
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Indianapolis; IN – Patent attorneys for Tower Reinforcement of Newburgh, Indiana filed a patent infringement suit in the Southern District of Indiana alleging Crown Castle International and Crown Castle Operating of Houston, Texas, and Aero Solutions, LLC of Boulder, Colorado infringed patent no.7,849,659, TOWER REINFORCEMENT APPARATUS AND METHOD, which has been issued by the US Patent Office.

Both the Crown Defendants and Aero Solutions are incorporated outside of Indiana, but the complaint alleges they maintain substantial contacts with Indiana by regularly conducting business in the state. Tower alleges patent infringement of three of their patents–“the ‘659 patent,” “the ‘972 patent,” and “the ‘712 patent”–to which Tower owns all the rights and interest. According to Tower’s complaint, the Defendants had actual notice of the Tower patents and still infringed on the patents through their making, using, selling and the offer of sale of products utilizing Tower’s patented technology. Tower asserts that the Defendants also encourage the design and construction of the protected patents, their actions being willful and deliberate. The complaint does not give many details about specific acts of infringement. Tower alleges they have, and will continue to, suffer substantial and irreparable financial loss and is therefore seeking to permanently enjoin the Defendants from their infringing activities of their ‘659, ‘972, and ‘712 patents.

Practice Tip: The US Patent laws applicable to this suit are 35 U.S.C. §§ 1, et seq. Specifically, 28 U.S.C. §§ 1338(a) gives district courts jurisdiction in any civil action relating to patents.

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Indianapolis; IN – Patent attorneys for Norco Industries, Inc. of Elkhart, Indiana filed a patent infringement in the Southern District of Indianaalleging Mito Corporation of Elkhart, Indiana infringed patent no. D650,723 ROOF BOW, which has been issued by the US Patent Office.

The patented technology was invented by Bernard F. Garceau and Robert G. Chew, but the complaint states the patent was owned by Norco during the period of alleged infringement. The ‘723 patent wasroofbow.jpg issued in December 2011. The complaint seeks an injunction, damages, attorney fees and costs.

Practice Tip: The complaint makes only a barebones statement regarding the patent infringement: it simply states Mito is infringing the patent by “making, selling and using roof bows that embody the patented invention.”

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Hammond; IN – Trademark attorneys for Mortar Net of Burns Harbor, Indiana filed a trademark infringement suit in alleging Keene Building Products of Mayfield Heights, Ohio infringed trademark registration nos. 3,571,383 and 3,571,384, which have been registered with the US Trademark Office.

Mortar designs and sells construction products and building materials. One of its products is called Mortar Net and has been sold by the company since 1993 for use in masonry. The mark in question is associated with the Mortar Net product. The Mortar Net’s dovetail shape has industry tm.jpgrecognition, and the shape has been registered as a trademark. The complaint alleges that Keene is offering products for sale that infringe Mortar’s trademarks on Keene’s website. Keene’s allegedly infringing product is called Keystone. The complaint makes claims of trademark infringement, trade dress infringement, false designation of origin, and unfair competition. Mortar seeks an injunction, an order requiring the destruction of all of Keene’s keystone products, damages, attorney fees and costs.

Practice Tip: The trademarked image is simply a black colored shape. It doesn’t seem to indicate any particular brand or product. There are likely issues about whether the trademark of the shape can be validly enforced.

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Indianapolis; IN – Trademark attorneys for Mainstreet Collection of Washington, North Carolina filed a trademark infringement suit in the Southern District of Indiana alleging that Main Street Collection, LLC and Melissa Card of Fishers, Indiana infringed trademark registration no. 4,034,192 for the mark MSC MAINSTREET COLLECTION registered by the US Trademarkmsc.jpg Office.

The complaint states that the plaintiff is a successful gift product company that sells crafts, kitchenware, handbags and other gift items at over 6000 gift shops such as Hallmark®. The plaintiff also maintains a website at www.gowhimsey.com and a facebook page. The plaintiff states it has used the MSC mark at issue since at least 2000. The complaint alleges that the defendants also sell gift items. The complaint states that the defendants maintain a website at www.themainstreetcollection.com that utilizes a mark MAINSTREET COLLECTION that is very similar to the plaintiff’s. The complaint states that the plaintiff attempted to have the defendants transfer www.themainstreetcollection.com domain name to the plaintiff, but the defendants refused. The complaint states that customers have been contacting the defendants who are actually seeking to do business with the plaintiff. The complaint makes claims of trademark infringement and cybersquatting and seeks an injunction, damages, transfer of the www.themainstreetcollection.com domain name, attorney fees and costs.

Practice Tip: The claim of trademark infringement here is based entirely on maintaining a website. As we have previously blogged, it can be difficult to obtain personal jurisdiction when basing a claim solely on web presence. The plaintiff here, however, has avoided is issue by filing suit in the defendants’ home jurisdiction.

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Washington, D.C. – The United State Supreme Court has invited the U.S. Solicitor General to file a brief expressing the view of the United States government on a patent infringement case that has been submitted to the Court on a petition of certiorari. Patent lawyers for Indiana farmer Vernon Hugh Bowman have filed a petition for certiorari requesting that the U.S. Supreme Court review the adverse decision of the U.S. Court of Appeals for the Federal Circuit, which held that Bowman had infringed the patents of the Monsanto Company of St. Louis, Missouri by using second generation seeds.

In 2007, patent attorneys for Monsanto had filed a patent infringement lawsuit in the Southern District of Indiana alleging that Mr. Bowman infringed patent no. 5,352,605, Chimeric genes for transforming plant cells using viral promoters and RE39,247E, GLYPHOSATE-TOLERANT 5-ENOLPYRUVYLSHIKIMATE-3-PHOSPHATE SYNTHASES, which has been issued by the US Patent Office. The patents at issue cover different aspects of genetically-modified “Roundup Ready®” soybeans that are resistant to certain herbicides, including Monsanto’s Roundup® product.

According to the Federal Circuit Court’s opinion, all growers of the Roundup Ready soybeans must sign a limited use license, called a Technology Agreement. The agreement restricts the use of the seed to a single season and does not allow the grower to save any seed from the crop produced to plant the next season. However, the agreement allows growers to sell the second-generation seeds to local grain elevators as “commodity seeds.” Farmer Bowman purchased some of these commodity seeds, planted and produced a crop from them. Mr. Bowman then retained some of the seeds from the commodity seed crop and replanted them the next year.

Chief Judge Richard L. Young of the Southern District of Indiana found that Farmer Bowman had infringed the Monsanto’s patents and entered a judgment in the amount of $84,456.20 in favor of Monsanto. The Federal Circuit Court affirmed. Mr. Bowman’s petition of certiorari asked the Court to review this decision. At this point, the Supreme Court has not decided whether it will hear the merits of the case.

Practice Tip: Fewer than 2% of certiorari petitions to the U.S. Supreme Court are accepted for review by the Court. The fact that the Court has requested the U.S. Solicitor General to brief this case suggests that the Court is taking interest in Bowman’s petition.

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Fort Wayne; IN – Copyright attorneys for Aaron Suozzi of Fort Wayne, Indiana filed a copyright infringement suit in the Allen County Superior Court alleging Coman Publishing of Durham, North Carolina infringed the copyrighted work of photographs which has been registered by the US Copyright Office. Upon the request of the defendant, the case was removed to the Northern District of Indiana.

Aaron Suozzi is a freelance photographer who provided his services to Coman Publishing. On December 8, 2011, Suozzi was informed that his services would no longer be used by Coman. He immediately demanded his photographs back and that Coman cease using his copyrighted photographs. Coman continued to use Suozzi’s copyrighted photographs; the January issue of Blue and Gold Illustrated, published on December 13, 2011 contained 16 of Suozzi’s copyrighted photographs, one being the magazine’s cover photo. According to the complaint, on December 15, Coman again informed Suozzi that they would no longer be using his services. Suozzi sent a cease and desist letter to Coman to stop using any of Suozzi’s copyrighted photographs in their magazine and on their website. Coman failed to do so. The complaint alleges Coman’s continued use of the copyrighted photographs violates Indiana Code §35-43-5-3 and that Coman’s knowing misapplication of Suozzi’s property involved substantial risk of loss to Suozzi. Suozzi seeks to recover $6,000, which includes his damages and attorney fees, plus interest, and court costs.

Practice Tip: Any case filed in state court that makes a federal claim can be removed to federal court upon request. Most intellectual property cases involve a federal claim under the federal patent, trademark or copyright laws. Here, however, the plaintiff has not explicitly stated a federal claim. However, it is clear he seeks protection of “copyrighted” photographs, which would invoke federal copyright law.

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South Bend; IN – Patent attorneys for Lippert Components of Goshen, Indiana filed a patent infringement suit in the Northern District of Indiana alleging Actuant Corporation of Menomonee Falls, Wisconsin, Versa Technologies of Milwaukee, Wisconsin and Engineered Solutions of Milwaukee, Wisconsin infringed patent no. 8,016,343 RETRACTABLE ROOM ACTUATION ASSEMBLY FOR RECREATIONAL VEHICLE, which has been issued by the US Patent Office.

The complaint states that the defendants displayed a new product, called “In-Wall Slide,” at a trade show in Kentucky in November and December 2010. Thereafter, Lippert notified the defendants that it had a patent application pending for the exact same technology utilized by the In-Wall Slide product. Lippert’s ‘343 patent was granted on September 13, 2011.figure4.jpg The complaint states that the defendants again displayed the In-Wall Slide product at the 2011 trade show. Libbert alleges that the In-Wall Slide product infringes its ‘343 patent. The complaint makes one claim of patent infringement and seeks an injunction, damages, attorney fees and costs.

Practice Tip: The plaintiff has included an interesting fact to establish personal jurisdiction. The complaint alleges that Versa and Engineered Solutions operate a business in Mishawaka, Indiana called Power Gear.

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Hammond; IN – Trademark attorneys for Gino’s East Services of Chicago, Illinois filed a trademark infringement suit in the Northern District of Indianaalleging GE Pizza of Mishawaka, Indiana, Shamrock Management Group of Highland, Indiana, Larry Briski and Mary Briski infringed trademark registration nos. 1,511,299, 3,341,730 and 3,572,210 for the marks GINOS EAST OF CHICAGO THE ORIGINALGinos.jpg registered with the US Trademark Office.

Gino’s East is a franchisor of pizza restaurants called “The Original Gino’s East of Chicago.” The complaint states that the defendants operate two franchise restaurants in Mishawaka and Highland, Indiana. The complaint states that Larry and Mary Briski personally guaranteed the franchise agreements. Gino’s East owns several trademarks associated with its franchise brand. The complaint states that the defendants have failed to pay royalty and other fees required by the franchise agreements. In February 2012, Gino’s East sent a letter to the defendants terminating the franchise agreement due to the failure to pay required fees. The complaint states that the defendants have failed to cease to use Gino’s East’s trademarks and have failed to return equipment and material bearing Gino’s East’s marks. The complaint states the defendants have not altered the exterior or interior of the restaurants so as to alert the public that they are no longer Gino’s franchises. The complaint makes claims of trademark infringement, unfair competition, trade name and dress infringement and breach of franchise agreement.

Practice Tip: Franchise agreements typically require the franchisee to promptly cease to use all of the franchise marks as well as return all items bearing the franchise marks in the event the franchise agreement is terminated. Failure to promptly comply with these provisions can lead to liability for trademark infringement, among other claims.

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Indianapolis, IN – Patent attorneys for Eli Lilly of Indianapolis, Indiana filed a patent infringement suit in alleging Apotex of Toronto, Canada infringed patent no. 7772209, ALIMTA, which has been issued by the US Patent Office.

ALIMTA is a chemotherapy drug used to treat mesothelioma and other lung cancers. Lilly co-owns the patent with Princeton University.alimta.jpg This lawsuit arises from Apotex’s filing of an Abbreviated New Drug Application in March 2012 with the Food and Drug Administration that utilizes the ALIMTA patent. Lilly alleges that Apotex seeks approval for ANDA and that the product infringes its patents. The complaint makes one claim of patent infringement and seeks a declaration of infringement, an injunction, attorney fees and costs.

Practice Tip: Lilly’s ALIMTA has been the subject of several patent infringement cases. Here are a few we have blogged about:

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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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