New Litigation

March 7, 2012

Orange Communications, LLC Sues Orange Public Relations, LLC and Blastmedia, Inc. for Unfair Competition, Trademark Infringement and Trade Name Infringement

Indianapolis, IN – Trademark attorneys for Orange Communications, LLC of Minneapolis, Minnesota filed a trademark ,trade name infringement in the Southern District of Indiana alleging Orange Public Relations, LLC of Fishers, Indiana and Blastmedia, Inc of Fishers, Indiana infringed Orange trade name and trademark, which apparently has not been registered with the US Trademark Office.

Orange Communications alleges that it applied for LLC status in Indiana in January 2010 and by January 2011 had set up its website, facebook page and twitter account. Orange Communications describes its trademark as “a circular, orange symbol which resembles a gear with a hole in the middle.” The plaintiff alleges that Orange PR was organized in May 2011 and began a website, facebook page and twitter account soon after. The complaint states that Orange Communications sent a cease and desist letter to Orange PR in January 2011 demanding that Orange PR stop using the Orange trade name and logo. The complaint states that Orange PR changed its twitter handle to “Orange Blast” but has not otherwise responded. The complaint further alleges that potential clients have been confused about the relationship and identity of the Plaintiff and Orange PR. The complaint makes claims of unfair competition and trademark infringement under the federal Lanham Act and common law trademark infringement. Orange Communications seeks an injunction, damages, costs and attorney fees.

Practice Tip: The complaint names two corporate defendants: Orange PR and Blastmedia LLC. However, it is unclear what role the plaintiff believes that Blastmedia had in the alleged unfair competition and infringement. The only mention of Blastmedia is the allegation that “Defendants Orange PR and Blastmedia share the same CEO and other senior management employees.”
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February 28, 2012

BMI Sues Indianapolis Bar for Copyright Infringement of Honky Tonk Women

By Overhauser Law Offices, LLC

Indianapolis, IN – Copyright attorneys for Broadcast Music, Inc. (BMI) of New York, New York, along with Abkco Music, Inc, Screen Gems-EMI Music, Inc. of and Jay-Boy Music Corporation of have filed a copyright infringement suit in the Southern District of Indianaalleging B & D Restaurants, Inc. d/b/a Gallagher’s II a/k/a Gallagher’s Pizza, Nicholas Himes and David R. Himes of Indianapolis, Indiana infringed the copyrighted works Brown Sugar and Honky Tonk Women published by Abkco Music, Inc., We Gotta Get Out Of This Place, publisher Screen Gems-EMI Music, Inc. and You Really Got Me, publisher is Jay-Boy Music Corporation, of which all have been registered by the US Copyright Office.

The complaint alleges that the copyrighted songs were performed publicly at Gallagher’s II, also known as Gallagher’s Pizza, on September 10 and 11, 2011. The complaint states that Nicholas and David Himes are directors of B & D Restaurants have a financial interest and management responsibilities for the establishment. The complaint makes four claims of willful copyright infringement and seeks an injunction, damages, costs and attorney fees.

Practice Tip: BMI is known for aggressively defending copyrights and seems to be targeting Indiana bars and restaurants where copyrighted songs were performed without license or authorization. This is the third copyright infringement case filed this month in Indiana district courts. We blogged about the other two cases here and here.
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February 24, 2012

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

By Overhauser Law Offices, LLC

South Bend, IN – Copyright attorneys for Broadcast Music Inc. (BMI) of New York, New York, Universal-Millhouse Music a Division of Magna Sound Corporation, Marvin J. and Laleta Moore Living Trust is a Trust d/b/a Green Door Music, Central Songs a Division of Beechwood Music Corporation, Sutjujo Music, Faizilu Publishing, Sony/ATV Songs LLC, Mann and Weil Songs, Inc., Welsh Witch Music, EMI Al Gallico Music Corp., Geomantic Music, Unichappell Music Inc., Two Night Music, Peermusic III Ltd., Universal-Champion Music Corporation, Sony/ATV Songs LLC d/b/a/ Sony/ATV Acuff Rose Music, Galeneye Music, Universal-Songs of Polygram International Inc., Lost Boys Music, Tokeco Tunes, Sony/ATV Songs LLC d/b/a/ Sony/ATV Tree Publishing and Big Yellow Dog LLC d/b/a Big Yellow Dog Music filed a copyright infringement suit in alleging Gibson’s, Inc. d/b/a The Big Easy and Oscar N. Gibson of Elkhart, Indiana infringed the copyrighted works of Don’t Tell My Heart a/k/a Achy Breaky Heart by Don Von Tress, Four Walls by Marvin Moore and George Campbell, He’ll Have to Go by Joe Allison and Audrey Allison, I’d Really Love to See You Tonight by Parker McGee, Just Once by Barry Mann and Cynthia Weil, Landslide by Stevie Nicks, Let Me Be There by John Rostill, ManEater by Sara Allen, John Oates and Daryl Hall, Ring My Bell by Frederick Knight, Satin Sheets by John E Volinkaty, Signs by Les Emerson, Tiny Dancer by Elton John and Bernie Taupin, Total Eclipse of the Heart by Jim Steinman, You Ain’t Much Fun by Toby Keith and Carl Geoff Jr. and Whiskey Girl by Scott Emerick and Toby Keith, which have been registered by the US Copyright Office.

The complaint alleges Gibson’s, Inc. operates a bar in Elkhart called The Big Easy. Oscar N. Gibson is the owner of Gibson’s, Inc. The complaint alleges that on November 17, 2011, the fifteen copyrighted songs were performed at The Big Easy without license or authorization from the copyright owners. The complaint seeks an injunction, damages, costs and attorney fees.

Practice Tip: In this case, the plaintiffs have sued the owner of Gibson’s personally as well as the corporate entity. 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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February 17, 2012

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

By Overhauser Law Offices, LLC

Indianapolis, IN – Copyright attorneys for Broadcast Music, Inc. (BMI) New York, New York, along with Adult Music, Gems-EMI Music, Inc., Universal-Songs of Polygram International, Inc., EMI Blackwood Music, Inc. and Counting Crows, LLC d/b/a Jones Falls Music have filed a copyright infringement suit in Southern District of Indiana alleging C & R Restaurants, LLC of Fishers, Indiana infringed the copyrighted works I want you to be me by Rick Neilsen, Jessie’s Girl by Rick Springfield, and Mr. Jones a/k/a Mister Jones by Adam Duritz, David Bryson, Matt Walley, Charlie Gillingham and Steve Bowman which have been registered by the US Copyright Office.

The complaint states C & R operates a restaurant called Casler’s Kitchen and Bar in Fishers. BMI has also named the owner of C & R, Enrique Fonseca, as a defendant in the lawsuit, stating that he had the right and ability to control the alleged infringement and financially benefitted from the alleged infringement. The complaint alleges that three copyrighted works were performed at Casler’s Kitchen & Bar on August 27, 2011 without a license or authorization from the copyright owners. BMI is seeking an injunction, damages, attorney fees and costs.

Practice Tip: In this case, the plaintiffs have sued the owner of alleging C & R Restaurants, LLC personally as well as the corporate entity. 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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February 14, 2012

Trademark Controversy Over Madonna’s Super Bowl Performance

By Overhauser Law Offices, LLC

Indianapolis, IN – The threat of a copyright and trademark infringement lawsuit may have influenced Madonna‘s playlist for her Super Bowl XXXXVI half time performance at Lucas Oil Stadium in Indianapolis. According to reports, Joe Francis, who owns the Girls Gone Wild trademark, sent Madonna a cease-and-desist letter that threatened to sue her if she performed the song from her new album, “MDNA,” which is scheduled for release in March.

Joe Francis, founder of the Girls Gone Wild adult entertainment series, owns the rights to trademark registration no. 4,010741 for the mark GIRLS GONE WILD registered with the US Trademark Office.

Madonna’s Super Bowl performance did not include the Girls Gone Wild song. Another report states that Madonna never planned to play the allegedly infringing song. As of today’s date, a search of Justia.com does not show any pending lawsuits filed by Joe Francis against Madonna.

February 13, 2012

Southern District Denies Stryker Corporation’s Motion to Add Additional Counterclaims in Patent Infringement Case against Hill-Rom Services

By Overhauser Law Offices, LLC

Indianapolis, IN – Magistrate Judge Denise K. LaRue of the Southern District of Indiana has denied Stryker Corporation’s Motion for Leave to Amend Its Counterclaims, which sought permission to add three more patent infringement counterclaims referencing three additional patents.

In April 2011, patent attorneys for Hill-Rom Services, Inc. of Batesville, Indiana, filed a patent infringement lawsuit in the Southern District of Indiana alleging that Stryker Corporation of Kalamazoo, Michigan had infringed twelve of its patents: Patent No. 6,993,799, HOSPITAL BED; Patent No. 7,644,458, HOSPITAL BED; Patent No. 6,588,523, STRETCHER HAVING A MOTORIZED WHEEL; Patent No. 6,902,019, STRETCHER HAVING A MOTORIZED WHEEL; Patent No. 7,011,172, PATIENT SUPPORT APPARATUS HAVING A MOTORIZED WHEEL; Patent No. 7,284,626, PATENT SUPPORT APPARATUS WITH POWERED WHEEL; Patent No. 7,090,041, MOTORIZED TRACTION DEVICE FOR A PATIENT SUPPORT; Patent No. 7,273,115, CONTROL APPARATUS FOR A PATIENT SUPPORT; Patent No. 7,407,024, MOTORIZED TRACTION DEVICE FOR A PATIENT SUPPORT; Patent No. 7,828,092, MOTORIZED TRACTION DEVICE FOR A PATIENT SUPPORT; Patent No. 6,772,850, POWER ASSISTED WHEELED CARRIAGE; and Patent No. 6,752,224, WHEELED CARRIAGE HAVING A POWERED AUXILIARY WHEEL, AUXILIARY WHEEL OVERTRAVEL, AND AN AUXILIARY WHEEL DRIVE AND CONTROL SYSTEM.

Stryker had counterclaimed with thirteen claims of patent infringement against Hill-Rom. In late October 2011, Stryker filed a motion seeking to add three more infringement claims regarding Patent No. 6,264,006, Brake for castered wheels, Patent No. 7,124,456, Articulated support surface for a stretcher or gurney and Patent No. 7,395,564, Articulated support surface for a stretcher or gurney.

In its decision today, the court noted that the three proposed patent infringement claims would involve significant facts and issues, such as claim-definition, claim-application, infringement and validity; that would be wholly separate and distinct from the present claims. The court stated that “The new technologies and new product hitched to the new claims will needlessly complicate and/or prolong the Court’s and the jury’s tasks.”

Practice Tip: The court’s opinion notes that Stryker stated a plan to file an additional lawsuit that would separately make these new patent infringement claims against Hill-Rom if the court denied its motion to add counterclaims to the present lawsuit. The court noted a new suit was a “ready alternative” for Stryker.
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February 10, 2012

Keith Lewis v. Grote Industries, Patent Infringement Case over LED Lighting Devices, Transferred to the Southern District

By Overhauser Law Offices, LLC

New Albany, IN – A patent infringement case originally filed in the Northern District of Illinois has been transferred to the Southern District of Indiana. In October, patent lawyers for Keith Lewis of the United Kingdom filed a patent infringement suit in the Northern District of Illinois alleging Grote Industries, Inc. of Madison, Indiana infringed patent no. 7,252,407, Lighting apparatus, which has been issued by the US Patent Office.

The case has now been transferred to the Southern District of Indiana upon the motion of Grote Industries. The complaint alleges that twenty-one lamp model numbers offered for sale by Grote infringe upon the ‘407 patent. The complaint describes the allegedly infringing products as LED lighting devices and work lamps. Lewis’s patent attorneys seek a declaration of infringement, an injunction, and damages.

Practice Tip: In filing in the Northern District of Illinois, Lewis’s patent attorneys alleged that the defendant sold products in Illinois to argue that the Illinois district court had personal jurisdiction over Grote, an Indiana company. However, the complaint reveals few ties to Illinois, since the plaintiff is from the United Kingdom and the defendant is an Indiana company. Therefore, as the Northern District of Illinois concluded, Southern District of Indiana appears to be a more appropriate venue.
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February 7, 2012

Counterfeit Super Bowl Goods Lead to Federal Seizure and Arrest for Criminal Trademark and Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, IN – Federal authorities, led by the Homeland Security Investigations division of the Immigration and Customs Enforcement (ICE), have seized counterfeit Super Bowl goods, shut down websites and made one arrest in a targeted effort to crack down on counterfeit sports goods and websites. According to a government press release, federal authorities seized fake jerseys, caps, t-shirts and other souvenirs illegally bearing NFL and other sports trademarks, trade names and copyrights. According to the press release, the operation has been ongoing since October 2011 and culminated in the raids and arrest on Thursday, February 2. The total value of the goods seized was reported to be $4.8 million.

Indianapolis Metro Police Department also participated in the operation, which focused on street vendors in and around the Indianapolis Super Bowl village as well as counterfeit sellers around the world. According to a news report, a store called Off the Wall in Fort Wayne was one of the stores raided by federal agents.

The operation, dubbed Operation Fake Sweep, also targeted websites that illegally stream sports events and sell counterfeit goods. Over 300 websites were shut down. Yonjo Quiroa of Michigan was the sole person arrested. He has been charged with criminal copyright infringement based on his alleged operation of websites that illegally streamed live sporting events. According to news report, many of the websites selling counterfeit goods were from.

February 2, 2012

Newt Gingrich Sued for Copyright Infringement of “Eye of the Tiger”

By Overhauser Law Offices, LLC

Chicago, IL – Copyright attorneys for Rude Music Inc. of Palatine, Illinois have filed a lawsuit in the Northern District of Illinois alleging that Republican presidential candidate Newt Gingrich and the American Conservative Union of Washington, D.C. infringed the copyrighted song “Eye of the Tiger,” which has been registered with the US Copyright Office.

Rude Music is owned by Frank Sullivan, who is a co-author of “Eye of the Tiger,” which was the theme song from the movie Rocky III. The complaint alleges that Newt Gingrich has been appearing at campaign and fundraising events since 2009 where the copyrighted song was played as he took the stage. Some of these events were fundraising events for the American Conservative Union while other events were part of Gingrich’s presidential campaign. The complaint states that Gingrich’s use of the song is unlicensed, unauthorized and willful infringement. Interestingly, the complaint alleges that Gingrich’s experiences in the House of Representatives as well as being president of Gingrich Productions, a multimedia company, make him knowledgeable about copyright infringement. The complaint seeks an injunction barring Gingrich’s use of the song, damages, attorney fees and costs.

Practice Tip: While this type of unauthorized use of a copyrighted song is likely infringement, it is an interesting question whether Gingrich would have the defense of fair use, particularly in the context of political speech and its first amendment protection. Other political campaigns have also faces similar suits. In 2008, John McCain was sued over his use of the song “Running on Empty” by Jackson Brown. McCain filed a motion to dismiss, citing the fair use doctrine. The court denied the motion to dismiss, but the case was settled soon after.
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January 27, 2012

Lioness Vizions, LLC Sues Rhasha and Mikel Hoosier for Copyright Infringement in Dispute Between Co-authors of Book

By Overhauser Law Offices, LLC

Indianapolis, IN – Copyright attorneys for Lioness Vizions, LLC, Angentia Childs of Indianapolis, Indiana and Delina Hill-Brooker of Powder Springs, Georgia filed a copyright infringement suit in the Southern District of Indiana alleging that Rhasha and Mikel Hoosier of Gahanna, Ohio, Reign Media Group and Romantic Media Group of the State of Ohio infringed the copyrighted work Revealing & Healing: 3 Women’s Stories of Survival. The plaintiffs also allege other claims based on the operation of a limited liability company that marketed and sold the book.

The complaint describes how Ms. Childs, Ms. Hill-Brooker and Ms. Hoosier wrote a book together, which is the allegedly copyrighted work. Because they could not find a publisher, the three women formed a limited liability company, Lioness Vizions LLC, to publish, market and sell their book. The complaint states that the three women assigned their copyright to the company. The complaint states that in August 2010, Ms. Hoosier resigned from company and then dissolved the company without the authorization of the two other women. The complaint alleges that Ms. Hoosier, however, went on to market and sell the book on her own and formed another company to sell the book. The complaint states that Ms. Hoosier has appeared on radio shows and done other promotional activities to sell the book and has not shared the profits with the other co-authors. The complaint makes claims of wrongful dissolution for Lioness Vizions LLC, copyright infringement, right of publicity infringement, breach of operating agreement, breach of fiduciary duty, civil theft, tortuous interference with existing or potential business relationships, and unfair competition. Copyright attorneys are seeking an injunction, damages, return of all copies of the book, an order reinstating Lioness Vizions LLC, disgorgement of profits,

Practice Tip: It is interesting to note that the Plaintiffs claim venue is proper in Indiana because “solicitation of the Plaintiffs took place” in Indiana. Lioness Vizions LLC was registered as an Ohio limited liability company.
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