New Litigation

April 20, 2012

Microsoft Corporation Sues D & A LLC for Copyright and Trademark Infringement Unauthorized Installations of Windows XP

Indianapolis; IN – Trademark and copyright attorneys for Microsoft Corporation of Redmond, Washington filed a copyright and trademark infringement suit in alleging D & A LLC d/b/a/ Asset Recovery and Recycling and David B. Bell of Indianapolis, Indiana infringed trademarks 1256083, 1200236, 1872264 and 2744843 registered by the US Trademark Office. The complaint also makes copyright infringement, false designation of origin, false description and representation, and unfair competition.

The complaint alleges that D&A markets, sells, and distributes computer hardware and software, including Microsoft products. The complaint states that D&A sells computers, which it advertises have Microsoft software pre-installed. Microsoft alleges that the Microsoft software on the computers D&A sells are infringing copies. The complaint states that a Microsoft investigator purchased computers with unauthorized copies of Windows XP from D&A on three occasions in 2011. The unlicensed software contains Microsoft trademarks and copyrighted works. Microsoft is seeking a declaration of infringement, an injunction, an accounting, an order impounding counterfeit copies of Microsoft software, damages, costs and attorney fees.

Practice Tip: Microsoft has named David Bell personally, the owner of D & B, as a defendant, alleging that he participated in and had a right to control the wrongful conduct. A corporate officer, director or shareholder is, as a general matter, personally liable for all torts which she authorizes or directs or in which she participates, even if she acted as an agent of the corporation and not on her own behalf.

April 18, 2012

Cosmetic Warriors Sues Lush Day Spa for Trademark Infringement of “LUSH”

By Overhauser Law Offices, LLC

Evansville; IN – Trademark attorneys for Cosmetic Warriors Limited of the United Kingdom filed a trademark infringement suit in the Southern District of Indiana alleging Lush Day Spa of Evansville, Indiana infringed trademark registration no. 3987808 for the mark LUSH which has been registered with the US Trademark Office.

The complaint states that Cosmetic Warriors operates a retail store in California and operates, www.lush.com, a website selling its bath, hair care, and beauty products, which are described as “made from natural, wholesome ingredients.” The complaint states that the Bartnicks operate an Evansville retail shop called Lush Day Spa. Cosmetic Warriors alleges it has been using the mark “Lush” since 1996 and alleges the mark is distinctive and is an indicator of Cosmetic Warrior’s brand. The complaint states that the defendants began operating the Lush Day Spa on July 18, 2011 and offers salon services and products. The complaint alleges the defendant operate a website at www.thelushdayspa.com and a facebook page under the same name. Cosmetic Warriors states that it has contacted the defendants and demanded they discontinue use of the Lush mark, but that the defendants have failed to discontinue. Cosmetic Warriors alleges the defendant’s use of “Lush” is virtually identical to its trademark and confusingly similar. The complaint makes claims of federal trademark infringement, unfair competition, deceptive consumer sales, and state law unfair competition and seeks an injunction, transfer of the domain name www.thelushdayspa.com, an accounting, damages, punitive damages, attorney fees and costs.

Practice Tip: The plaintiff seems very concerned with the defendant’s website, which is said to be a confusingly similar domain name, however, it has not alleged a cause of action for cybersquatting. The Anti-cybersquatting Consumer Protection Act of 1999 created a cause of action for registering, trafficking or using a domain name that is confusingly similar or dilutive to the trademark of another.

April 12, 2012

Dish Network Sues Thomas Williams For Copyright Infringement Over Illegal Intercept Using Dark Angel

By Overhauser Law Offices, LLC

Indianapolis, IN – Copyright attorneys for DISH Network LLC of Englewood, Colorado, EchoStar Technologies LLC of Texas, and NagraStar LLC of Englewood, Colorado have filed a copyright infringement lawsuit in the Southern District of Indianaalleging that Thomas Williams of Coal City, Indiana infringed DISH’s copyrighted works by illegal satellite signal interception.

The complaint gives a detailed, technical description of a “pirate IKS television service” called Dark Angel. Apparently the Dark Angel service allows subscribers to intercept the DISH service without paying the license and subscription fees to DISH. The complaint alleges that Mr. Williams purchased subscriptions to the Dark Angel service on April 9 and July 19, 2010. The complaint makes claims of “circumventing an access control measure” and receiving satellite signals without authorization, both in violation of the Digital Millennium Act as well as one count of intercepting satellite signals in violation of the Electronic Communications Privacy Act.

Practice Tip: The complaint states that DISH learned of Mr. Williams identity through discovery in a lawsuit DISH has filed against Dark Angel. It states that DISH seized all of Dark Angel’s business records and gleaned the names of the end users from these business records.

April 11, 2012

JacobsParts, Inc. Sues United Integral, Inc. for Trademark Infringement In Sale of Phone Assessories On Amazon

By Overhauser Law Offices, LLC

Indianapolis; IN – Trademark attorneys for JacobsParts, Inc. of Indianapolis, Indiana filed a trademark infringement suit in alleging United Integral, Inc. of Temple City, California infringed trademark registration nos. 85405544,85567855,7725369 and 85575355 for the marks JPQuality and JacobsParts, which have been issued by the US Trademark Office.

The complaint states that JacobsParts sells computer and office supplies and that a vast majority of its sales are through amazon.com. United Integral is alleged to also sell computer and office supplies through amazon.com. The complaint alleges that at an unknown time, United began describing itself on amazon as selling products bearing the JPQuality and JacobsParts marks. The complaint alleges United claims to offer these trademarked goods at lower prices than JacobsParts does. The complaint states that United’s unfair practices result in its products being listed first when customers are searching for the specific parts on amazon. It further alleges that United then sends customers generic and non-trademarked parts, which are lower quality, in an attempt to “pass off” its products. JacobsParts has included a list of the allegedly infringing products, which consists mainly of mobile phone cases, styluses, chargers and cables. The complaint seeks a declaration of infringement, an injunction, actual and treble damages, costs and attorney fees.

Practice Tip: The complaint makes only a bare-bones allegation of facts that would establish personal jurisdiction over Defendant United Integral in Indiana, “as a result of business regularly conducted by the Defendant within the State of Indiana.” Despite the allegation that United Integral sells products on “Amazon.com,” apparently JacobsParts did not make a purchase and have it shipped to Indiana before filing a complaint. Making such a purchase before filing a suit increases the chances of obtaining personal jurisdiction in Indiana.

April 9, 2012

Australian Gold, LLC Sues Devoted Creations, Inc. For Trademark Infringement Of “MUST HAVE”

By Overhauser Law Offices, LLC

Indianapolis; IN – Trademark attorneys for Australian Gold, LLC of Indianapolis, Indiana filed a trademark infringement suit in the Southern District of Indiana alleging Devoted Creations, Inc. of Oldsmar, Florida infringed trademark registration no. 4089695 for the mark MUST HAVE, which has been registered with the US Trademark Office.

Australian Gold claims it has used the MUST HAVE trademark since 2010 to market its tanning preparation products. The complaint alleges that Devoted has introduced a competing tanning preparation product and is using the mark MUST HAVE! to market the product. The only difference between the marks is that Devoted uses an exclamation mark at the end. The complaint alleges that the marks are confusingly similar and claims the US Trademark Office rejected Devoted’s application to register MUST HAVE! The complaint makes claims of trademark infringement and unfair competition and seeks a judgment of infringement, an injunction, an order requiring all infringing products be delivered and destroyed, damages, attorney fees and costs.

Practice Tip: The complaint alleges, as a jurisdictional fact, that Devoted “does business in Indiana” and sells the allegedly infringing product at a distribution center in Danville, Indiana.

March 30, 2012

Buztronics sues Toy Investments, Inc. for Declaratory Judgment for Non-Infringement of Patents

By Overhauser Law Offices, LLC

Indianapolis, IN. Patent attorneys for Buztronics, Inc. of Indianapolis, Indiana have filed a patent suit seeking that three patents owned by Toy Smith Investments, Inc. of Sumner, Washington be declared invalid and not infringed by Buztronics’ products. The three patents, all entitled “WRIST TOY” are: 6,685,582, 6,971,963, and 7,833,115.

Buztronics alleges that Toysmith “accused Buztronics of infringement of Toysmith’s patent rights.”

Practice Tip: Declaratory judgment suits are often filed intellectual property cases after the first allegation of infringement is made. The strategy is for the accused infringer to obtain “home court advantage” by having the dispute litigated nearby. This makes it more expensive for the patent owner to litigate, because they must hire local counsel. Coincidentally, two days before Buztronics filed this suit, the Court of Appeals for the Federal Circuit issued an Order clarifying when threats of infringement rise to a level sufficient to trigger declaratory judgment jurisdiction. In 3M Company v. Avery Denison Corporation, the Court stated that declaratory judgment jurisdiction requires more than “a communication from a patent owner to a party merely identifying its patent and the other party’s product line.”

March 27, 2012

Digonex Technologies Sue QCUE Inc. for Patent Infringement of Ticket Pricing Software

By Overhauser Law Offices, LLC

Indianapolis, IN – Patent attorneys for Digonex Technologies, Inc. of Indianapolis, Indiana has filed a patent infringement suit in the Southern District of Indiana alleging that Qcue Inc., of Austin, Texas infringed patent numbers of the 8,095,424 and 8,112,303, which have been issued by the US Patent Office.

The plaintiff claims that the defendants sell dynamic pricing software products aimed at pricing tickets for events by a variety of names “Dynamic Pricing Dashboard,” “the Qcue Product,” and “software-based dynamic pricing solution” that infringe the patents held by Digonex. The technology is apparently marketed to sports teams and event promoters. The complaint alleges that Qcue has sold infringing products to Major League Baseball, Major League Soccer, National Basketball Association, National Hockey League and NASCAR. The complaint makes two claims of patent infringement and seeks a declaration of infringement, an injunction, damages, attorney fees and costs. The complaint also alleges that Qcue has the specific intent to induce others to infringe Digonex’s patents.

Practice Tip: The complaint alleges that Qcue has referenced the two Digonex patents in a Qcue patent application pending before the US Patent Office. This, in part, is Digonex’s “evidence” of willful infringement. Also, Patent Office’s records reveal that in prosecuting the 8,095,424 patent it submitted an Information Disclsosure Statement on September 30, 2011, after the claims had been allowed. However, the Patent Office refused to consider the IDS becuase it did not comply with Patent Office regulations. Therefore, there may be some question regarding the validity of this patent.

March 20, 2012

Southern District Grants Summary Judgment for Coach in Trademark Infringement Case Over Knock-Offs

By Overhauser Law Offices, LLC

Indianapolis; IN – The Southern District of Indiana has issued a partial summary judgment in favor of Coach, Inc. and finding that Teresa Barnes, the owner of a Muncie store, had committed trademark infringement and counterfeiting for the sale of knock-off Coach goods.

In April 2011, trademark attorneys for Coach, Inc. and Coach Services, Inc. of New York, New York, had filed a trademark infringement lawsuit in the Southern District of Indiana alleging that Chaos of Muncie, Chaos on Campus, LLC and Teresa Barnes of Muncie, Indiana have been offering for sale and advertising Coach knock-off products. The complaint alleged that in February 2011, the store was offering for sale fifty-five Coach knock-off items including flip-flops, handbags, wallets, and sunglasses. The complaint made claims of trademark counterfeiting, trademark infringement, trade dress infringement, false designation of origin, false advertising, trademark dilution, copyright infringement, common law trademark infringement, common law unfair competition, forgery, and counterfeiting. We blogged about the case here.

In the court’s decision granting summary judgment, it noted that Coach had requested summary judgment and Ms. Barnes had failed to reply. The court then reviewed the elements of trademark infringement and counterfeiting, found there was no factual dispute and found that the Coach should be granted summary judgment on the issue of liability. The court has ordered Coach to submit evidence on its damages.

Practice Tip: As the court noted, “A corporate officer, director or shareholder is, as a general matter, personally liable for all torts which she authorizes or directs or in which she participates, even if she acted as an agent of the corporation and not on her own behalf.” The court also noted that “an officer of a corporation can be personally liable for trademark infringement if the officer is a moving, active conscious force behind the defendant corporation’s infringement.” Citing Bambu Sales, Inc. v. Sultana Crackers, Inc., 683 F.Supp. 899, 913-14 (E.D.N.Y.1988). In this case, the court held that Ms. Barnes is personally liable because she was the sole owner of Chaos and managed all of the store’s business decisions.

March 13, 2012

Reindeer Logistics Sues McKnight Logistics For Trademark Infringement of Reindeer Auto Relocation Mark

By Overhauser Law Offices, LLC

Indianapolis, IN – Trademark attorneys for Reindeer Logistics, Inc. of Zionsville, Indiana filed a trademark infringement lawsuit in the Southern District of Indiana alleging McKnight Logistics, Inc. of Temecula, California infringed trademark registration no. 3542813 for the mark REINDEER AUTO RELOCATION, which was filed with the US Trademark Office.

The complaint states that Reindeer uses its mark Reindeer Auto Relocation in association with “high quality auto relocation services.” The complaint alleges that the defendant, McKnight, operates a website at www.reindeerautotransport.com to advertise auto relocation services and to “consummate” transactions. Reindeer discovered this allegedly infringing website in February 2012, and its trademark attorneys sent a cease-and-desist letter to McKnight. The complaint states that McKnight continues to use the infringing website and slogan. Reindeer alleges that the only possible purpose of McKnight’s use of that website and slogan are to “illegally divert traffic from Reindeer’s site and/or to confuse the public.” The complaint makes claims of trademark infringement, violation of federal anti-cybersquatting act, federal and state unfair competition and trademark dilution. Trademark attorneys seek an injunction, an accounting of profits, damages, attorney fees and costs.

Practice Tip: The plaintiff here makes a claim under the anti-cyberquatting act, 15 U.S.C. § 1125(d), which establishes a cause of action for registering or operating a domain name that is confusingly similar to a registered trademark or name.

March 8, 2012

Fostech Outdoors, LLC Sues Slide Fire Solutions, Inc. for Patent Infringement of Semi-Automatic Firearm Device

By Overhauser Law Offices, LLC

Indianapolis, IN- Patent attorneys for Fostech Outdoors, LLC of Paris Crossing, Indiana filed a patent infringement suit in the Southern District of Indiana alleging Slide Fire Solutions, Inc. of Moran, Texas infringed patent no. 6101918, METHOD AND APPARATUS FOR ACCELERATING THE CYCLIC FIRING RATE OF A SEMI-AUTOMATIC FIREARM, which has been issued by the US Patent Office.

The patented technology is described as “bump fire stocks” which are a device that, when attached to certain firearms, allows the firearm to rapidly fire multiple shots. The complaint alleges that Slide makes, imports, and/or sells a product called “SSAR-15 stock” that infringes the ‘918 patent “when used in conjunction with certain firearms assemblies.” The complaint alleges that Slide actively induces other to infringe the Fostech’s patent and that Slide should be liable for contributory infringement because it knows there are no non-infringing uses for its product. The complaint makes one claim of patent infringement and seeks an injunction, damages, costs and attorney fees.

Practice Tip: The plaintiff here has made a claim of contributory patent infringement, which governed by 35 U.S.C. § 271(b) and is defined as selling or importing a device “for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use”

Personal jurisdiction may be an issue in this case. The plaintiff alleges Slide regularly conducts business in Indiana and the events giving rise to the suit occurred in Indiana. However, none of the specific acts of infringement seem to have occurred in Indiana.
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