Articles Posted in New Litigation

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South Bend, IN – Trademark lawyers for Coach, Inc. of New York, New York filed a trademark and copyright infringement suit in the Northern District of Indianaalleging The Treasure Box, Inc. of Elkhart, Indiana infringed the Coach’s registered trademarks and copyrights, including the copyrighted works known as the “Coach Design Elements” Coach.jpgincluding the SIGNATURE C DESIGNS, Registration No. VAu1-046658, COACH 70th ANNIVERSARY SNAPHEAD PRINT AND Registration No. VA1-010-918, COACH CLOVER DESIGN, which have been registered by the US Copyright Office, and approximately fifty trademarks that have been registered by the US Trademark Office.

The complaint alleges that the Treasure Box has advertised, sold, or offered for sale handbags, wallets, key chains, earrings and sunglasses bearing the Coach marks without authorization from Coach. The complaint states that on October 25, 2011, a Coach representative visited The Treasure Box store in Elkhart, Indiana and purchased a handbag, wallet and key chain bearing the Coach marks.. The representative also saw 25-30 additional items for sale in the store that bore the Coach marks, all of which were counterfeit items. The complaint makes claims of copyright infringement, trademark infringement, trade dress infringement, false designation of origin, false advertising, trademark dilution, unfair competition, forgery and counterfeiting. Coach seeks an injunction, damages of $2,000,000 per counterfeit mark, actual and punitive damages, costs and attorney fees.

Practice Tip: Coach’s latest compliant is very similar to several others it has recently filed in Indiana, which Indiana Intellectual Property Law and News has blogged and that are linked below.
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Indianapolis, IN – Trademark attorneys for The St. Joe Company of Watersound, Florida filed a trademark infringement suit in the Southern District of Indianaalleging Epcon Community Franchising, Inc. of Dublin, Ohio, Property Group One, Ltd., Sherri Meyer, and Watercolors Owners Association, Inc. of McCordsville, Indiana, infringed trademark registration no. 2,480,515, 2,532,581, 2,626,297, 2,713,757, and 3,434,972, known as the “Watercolor Registrations” registered with the US Trademark Office.

The complaint states that St. Joe owns the Watercolor marks and uses the marks in association with a variety of goods and services, including real estate development, recreational services, hotel services and clothing.StJoeWatercolor.jpg According to the complaint, in 2009 St. Joe became aware that Epcon was planning to use WATERCOLORS to identify an Indiana real estate development and sent a letter to Epcon demanding that it cease using the WATERCOLORS name. Epcon’s franchisee, Property Group, was the entity actually using the WATERCOLORS name. The complaint states that the defendants agreed to stop using the WATERCOLOR name over a 6 month transition period. At the end of the 6 months, the defendants chose the name AQUARELLES as the new name for the Indiana real estate development project. The complaint states that AQUARELLES is French for WATERCOLORS and that the defendants have not ceased to use the name WATERCOLORS in association with the development. St. Joe’s subsequently demanded the defendants cease using the registered marks, but the defendants refused. The complaint states the defendants continue to use the Watercolors marks to this date and maintain a website at www.watercolorsinfishers.com. The complaint makes claims of trademark infringement, unfair competition, common law infringement, common law unfair competition, breach of contract and tortuous interference with a contractual relationship.

Practice Tip: An interesting issue may be the role of a real estate title insurance policy and whether the policy covers claims for trademark infringement related to the name of a real estate development. As shown by Exhibit L, the Defendant Homeowner Association’s title insurance company was engaged in efforts to negotiate a settlement.
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Indianapolis, IN – A trademark infringement lawsuit filed in Hamilton County Circuit Court has been removed to the Southern District of Indiana. Trademark lawyers for Wine & Canvas Development, LLC of Indianapolis, Indianawine&Canvas.jpg filed a recent trademark infringement suit in Hamilton County, Indiana in alleging Theodore Weisser and Christopher Muylle of Indiana, YN Canvas CA, LLC of Nevada, Art Uncorked and www.ArtUncorked.com, infringed trademarks WINE & CANVAS, COOKIES & CANVAS, PAINTING WITH A COCKTAIL TWIST, LIFE IS TOO SHORT FOR BLANK WALLS, UNLEASE YOUR INNER PICASSO, and CRUISE AND CANVAS that are registered with US Trademark Office. This case was removed to the Southern District of Indiana on December 2, 2011.

The trademarks at issue here, known as the WC Marks, are associated with Wine & Canvas’s business model. The complaint states that Weisser was an employee of Wine & Canvass and that Wiesser, on behalf of Wine & Canvas, entered a licensing and franchise negotiation with Muylle. The complaint states that Wiesser and Muylle, however, then entered certain agreements without Wine & Canvas’s knowledge and misled Wine & Canvas about the agreements. When Wine & Canvas discovered the issue, it demanded the defendants cease using the WC Marks. However, the defendants continued to sell products and services using the WC marks. The complaint further states that the defendants have threatened to “expose” the Plaintiff “to hatred, contempt, disgrace and/or ridicule or otherwise unlawfully injure” Wine & Canvas. The complaint makes claims of trademark infringement, false designation of origin, trademark dilution, sale of counterfeit items, unfair competition, breach of contract, fraud, and damages under the Indiana crime victims act. The complaint seeks a declaratory judgment, temporary and permanent injunction, damages, costs, attorney fees and for a writ of attachment.

Practice Tip: The complaint appears to largely make state law claims that come out of a failed attempt to create a California franchise of Wine & Canvas. The complaint paints a picture of the defendants essentially stealing the business ideas of Wine & Canvas and opening their own entity, rather than operating the California business as a franchise. While these contract-type disputes are typically appropriately filed in state court, the fact that the plaintiff also makes trademark infringement claims resulted in the case being removed to federal court. Under the supplemental federal jurisdiction doctrine, the district court will be able to hear both the state law and federal law claims since it would clearly have subject matter jurisdiction over the trademark claim.
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Indianapolis, IN – A patent infringement judgment from the Southern District of Indiana will be reviewed by the Federal Circuit Court of Appeals. In May, Chief Judge Richard L. Young of the Southern District of Indiana issued a verdict and judgment in favor of plaintiffs Alcon Research Ltd., Alcon Laboratories, Inc., both of Fort Worth, Texas and Hakko Kirin Co., Ltd. (f/k/a Kyowa Hakko Kogyo Co., Ltd.) of Tokyo, Japan, after a bench trial on the plaintiff’s patent infringement claims against Apotex, Inc., of Ontario, Canada and Apotex Corp. Weston, Florida. Alcon filed a complaint alleging Apotex infringed patent no.5,641,805, TOPICAL OPHTHALMIC FORMULATIONS FOR TREATING ALLERGIC EYE DISEASES, which has been issued by the US Patent Office.

Chief Judge Young presided over a bench trial April 26, 2010 to May 7, 2010, and final arguments were presented to the court on August 3, 2010. The Court found that plaintiffs had “proven, by a preponderance of the evidence, that the Defendants’ generic equivalent of Plaintiffs’ patented allergy topical ocular medication, Patanol.jpgPatanol®;, infringed claims 1-8 of the ‘805 patent[,]” and that the defendant failed to show, by preponderance of evidence, that the patent claims were invalid. The court also found that the defendants failed to prove, by preponderance of evidence, that the ‘805 patent is unenforceable due to inequitable conduct.

Apotex has appealed the case to the Federal Circuit Court of Appeals (docket number 2011-1455). Apotex’s brief was filed on October 3, 2011, and Alcon’s brief is due on December 23, 2011.

Practice Tip: One of the defenses raised by Apotex was to claim the patent was unenforceable due to inequitable conduct. Apotex claimed that one of the inventors of the ‘805 failed to disclose results of certain tests and other data in the patent application. Apotex claimed the inventor as well as the attorney who filed the patent application violated their duty of candor to the PTO, which is imposes pursuant federal regulations 37 C.F.R. § 1.56(c). Alcon, however, presented evidence that the tests in question were believed to be inconclusive and that the inventor simply forgot about another test. Under the totality of circumstances, the court found that a finding of deceptive intent was not warranted. The court, therefore, declined to find that the patent should not be enforceable under the theory of inequitable conduct.

In addition, the court held that Apotex could not raise an additional theory of invalidity – invalidity for lack of a written description – until after the trial. The court found that the late disclosure had prejudiced the plaintiff and therefore refused to consider the new theory.
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Indianapolis, IN – Trademark attorneys for Wheaton Van Lines, Inc. of Indianapolis, Indiana filed trademark infringement suit in the Southern District of Indiana alleging Unigroup, Inc. and Mayflower Container Services, LLC of Fenton, Missouri infringed trademark registration no. 2,607,246 for the mark, WE MOVE YOUR LIFE, which is registered with the US Trademark Office.

The complaint WheatonVanLines.jpgalleges that since 1997 Wheaton has used the phrase “We Move Your Life” as an advertising slogan and obtained a federally registered trademark of the phrase in 2002. The complaint states that the defendants are using a confusingly similar slogan “Your Life on the Move” and have created an internet site at www.yourlifeonthemove.com. Wheaton alleges that “Your Life on the Move” is confusing similar to “We Move Your Life” and that customers are likely to confuse the two. Wheaton states that the defendants are benefiting from the goodwill Wheaton has established as connected to its trademarked slogan. The complaint notes that Wheaton contacted the defendants and asked them to discontinue use of “Your Life on the Move.” The defendants failed to discontinue. The complaint makes claims of trademark infringement, unfair competition, and trademark dilution. Trademark lawyers for Wheaton are seeking preliminary and permanent injunctions, an award of profits, damages, costs and attorney fees.

Practice Tip: The Plaintiff alleges that personal jurisdiction over the Defendants exists because “Defendants have advertised and continues (sic) to advertise moving service on the Internet to inform residence of this State that it will take orders or bookings for such services from residence of this State.” This seems unlikely to obtain personal jurisdiction. Overhauser Law Offices, the publisher of this website, has repeatedly obtained dismissal of trademark infringement cases where the only basis for personal jurisdiction was maintaining a website. (See for example the Mice Direct and Joy Honeymoon cases.)
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Indianapolis, IN – A trademark and copyright infringement case filed in the Southern District of California has been transferred to the Southern District of Indiana. Intellectual property attorneys for SoftMaker and SEG, both of Nuremberg, Germany have filed a trademark and copyright infringement suit in the Southern District of California alleging that Third Scroll of Indianapolis, Indiana infringed trademark registration no. 3,051,159 for the mark SOFTMAKERSoftmaker.jpg and trademark registration no. 3,104,173 for the mark TEXTMAKER registered by the US Trademark Office. The case was transferred to the Southern District of Indiana on November 29.

The plaintiffs are software development companies. The complaint states the suit is based on the defendant’s production, importation and sale of hacked copies of the plaintiff’s software bearing the plaintiff’s trademarks. The complaint alleges that the defendants offered pirated copies of the plaintiff’s software online, including the programs Textmaker®, Planmaker®, and Softmaker Presentations®. The plaintiff states that its software is protected by U.S. copyright laws and international treaties recognizing copyrights. The copyrighted software also bears the plaintiff’s trademarks. The complaint makes claims of copyright infringement, “circumvention of copyright protection measures,” trademark infringement and counterfeiting, false designation of origin, and unfair competition.

Practice Tip: This case was originally filed in the Southern District of California. The only allegation of a connection to California in the complaint is that defendant’s website was accessible there. The defendant succeeded in getting the case transferred to Indiana, the domicile of the defendant company.
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New Albany, IN – Copyright lawyers for Jeral Tidwell of Kentucky filed a copyright infringement suit in the Southern District of Indianaalleging VSJ, Ltd of the United Kingdom and Raw International, LLC d/b/a Nitro USA of Valencia, California infringed the copyrighted work INK ALCHEMY which has been registered by the US Copyright Office.

The complaint states that Mr. Tidwell isThumbnail image for InkAlchemy.jpg an artist who creates markets and sells various images, including the copyrighted work, Ink Alchemy, which he created in 2008. Mr. Tidwell saw the defendant’s display at a trade show in Indianapolis in February 2011 and saw that the defendant’s were using his copyrighted work on motorcycle helmets without his authorization. Mr. Tidwell then discovered that the defendants were marketing helmets with the infringing images on their website as well. The complaint makes one claim of copyright infringement and seeks an injunction, damages, profits, attorney fees and costs.

Practice Tip: The complaint states that “venue” is appropriate in the Southern District of Indiana because the defendants have been conducting business in Indiana and specifically points to a website of the defendants that is accessible online. This sounds more like a personal jurisdiction argument, rather than a venue argument.
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Lafayette, IN – Attorneys for the Purdue Research Foundation (“PRF”) of West Lafayette, Indiana have file a suit against the law firm of Morrison & Foerster, LLP alleging that Morrison & Foerster filed a patent application without PRF’s authorization, specifically for patent PCT2009/060273 and misappropriated trade secrets in the course of filing this patent application.

PRF filed the original complaint in Tippecanoe County Circuit Court on October 7, seeking a permanent injunction to prevent Morrison from continuing the patent application, on which Morrison listed itself and PRF as the co-applicants. The original complaint alleges that Morrison continued to breach its fiduciary duties to PRFPRF.jpg through continuing to prosecute the patent application. Morrison filed to have the case removed to federal court, arguing that the case involved the federal questions of the inventorship of the claimed invention under the ‘273 patent.

Morrison’s removal notice notes that PRF is currently involved in related lititgation against CoMentis Incorporated, who is Morrison’s client. In that lawsuit, PRF alleges that CoMentis improperly disclosed trade secrets, which are covered by PRF’s patents, when it filed the ‘273 patent application. Morrison states that this new case “is really an attempt by PRF to enjoin or otherwise interfere with an inventor’s (CoMentis’s) attempt to prosecute a patent application.”

Practice Tip: In this case, PRF has alleged that Morrison owed it a fiduciary duty since Morrison filed the patent application and listed PRF as a co-applicant. Morrison disputes that it owed a fiduciary duty to PRF and states that any existence of a fiduciary duty would be governed by the Code of Federal Register, thus creating a federal question. In addition to this federal question, Morrison states PRF’s complaint is really an “inventorship” dispute, which is also a federal question.
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Evansville; IN – Copyright attorney for Joe Hand Promotions of Feasterville, Pennsylvania filed a copyright infringement suit in the Southern District of Indiana alleging James C. Tosti d/b/a Sam & Jimmys Ho Bo Jungle Bar and JimSam, LLC, and unknown business entity d/b/a Sam & Jimmy’s HO BO Jungle Bar of Evansville, Indiana has illegally intercepted and broadcast Ultimate Fighting Championship 106: Tito Ortiz v. Forest Griffin II,JoeHandPicture.jpg a broadcast to which Joe Hand owned exclusive national broadcast rights.

The UFC fight at issue here was broadcast on November 21, 2009. Copyright attorneys have made claims both against the bar as a business entity and seeking personal liability claims against the owner. The complaint alleges one count of copyright infringement in violation of 47 U.S.C. § 605, one count of copyright infringement 47 U.S.C. § 553, and one count of conversion. Copyright attorneys for Joe Hand are seeking statutory damages of $150,000 as well as costs and attorney fees.

Practice Tip: Joe Hand Promotions is a frequent litigant and has brought several cases this year against defendants alleged to have illegally intercepted and/or broadcast UFC fights. Indiana Intellectual Property Law and News has previously blogged on the cases below:

  • Joe Hand Promotions Sues Lawrenceburg, Indiana Bar for Showing UFC Fight Without Authorization
  • Joe Hand Promotions Sues Beerbelly’s over Interception of Broadcast Signal
  • Joe Hand Promotions Sues Longwell and Pitt Stop Pub & Grill for Intercepting UFC Broadcast

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Indianapolis; IN – Copyright attorneys for J & J Sports Productions, Inc. of Campbell, California filed seven separate copyright infringement suits in the Southern District of Indiana alleging that seven Indianapolis restaurants illegally broadcast a fight on November 14, 2009, specifically “Firepower: Manny Pacquiao v. Miguel Cotto, WBO Welterweight Championship Fight Program” a copyrighted work to which J&J Sports Productions owns exclusive national broadcast rights. The seven restaurants are Fandango’s Night Club, Taqueria Jalisco, El Sol Azteca, El Taco Torro, Rea Night Club, Moctezuma Restaurant and Pollos Los Reyes.

Picture.jpgThe complaints are nearly identical in each case. Copyright attorneys have made claims both against the restaurants and personal liability claims against the owners. Each group of defendants is accused one count of copyright infringement in violation of 47 U.S.C. § 605, one count of copyright infringement 47 U.S.C. § 553, and one count of conversion. Copyright attorneys for J&J are seeking statutory damages of $150,000 as well as costs and attorney fees.

In addition to these seven lawsuits, J&J filed eighty-seven other lawsuits in the district courts around the country alleging illegal broadcast of the copyrighted fight in question here between November 1 and November 14, 2011.

Practice Tip: All of these lawsuits were filed on the eve of the two year anniversary of the broadcast that the defendants are alleged to have illegally broadcast. 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.
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Contact Information
Indiana Intellectual Property: IP Litigation, Patents, Trademarks, Copyrights
  • Seventh Circuit
  • Northern District of Indiana
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Paul B. Overhauser
Overhauser Law Offices, LLC
Greenfield
18 E Main St #202
Greenfield, IN 46140
Phone: 317.467.9100
Fax: 866.283.8549
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101 W Ohio St #2000
Indianapolis, IN 46204
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