Articles Posted in New Litigation

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Newark, NJ – Patent attorneys for Howmedica Osteonics Corp. Mahwah, New Jersey Stryker.jpgand Stryker Ireland Limited of Cork, Ireland filed a patent infringement suit in the District of New Jerseyalleging DePuy Orthopaedics Inc. of Warsaw, Indiana infringed patent no. 6,475,243, Acetabular cup assembly with selected bearing; which has been issued by the US Patent Office.

The complaint states that Howmedica and Stryker are joint assignees of the ‘243 patent. The complaint alleges that DePuyDepuy.jpg is currently marketing two products that infringe the ‘243, specifically the Pinnacle® and Duraloc® Acetabular Cup Systems. The complaint also alleges that by offering these products for sale, DePuy causes or encourages others to infringe the ‘243 patent by creating medical literature and providing training to healthcare providers about its infringing products and methods. The complaint seeks a finding that DePuy’s products infringe the ‘243 patent, an injunction, and damages.

Practice Tip: The plaintiffs have brought this case in New Jersey District Court against an Indiana company. The complaint states that personal jurisdiction over the Defendant is based upon the “Defendant has infringed Plaintiff’s patent in this district, regularly conducts business within this district, and its activities have targeted this district.” These are fairly generic and non-specific allegations to give rise to personal jurisdiction. If DePuy challenges jurisdiction, the plaintiffs may have to demonstrate more specific facts to successfully establish personal jurisdiction.
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Indianapolis IN – Trademark lawyers for Eli Lilly and Company of Indianapolis, Indiana filed a trademark infringement suit in the Southern District of Indiana alleging Yanchep Veterinary Clinic, Proprietary Limited Company, Petsvetshop, Proprietary Limited Company,, Paul Sorensen and Dr. Cymantha Sorensen, all of Yanchep, Australia infringed trademark registration no. 3,370,168 for the mark COMFORTIS, which has been registered in the US Trademark Office.

The COMFORTIS mark is used by Lilly’s Elanco Animal Health Division in connection with the manufacturing and sales of flea-control productsThumbnail image for Thumbnail image for lilly.jpg for dogs available only through a veterinarian’s prescription. Lilly maintains a website that instructs on the safe use of the product, but does not sell the product online. Lilly sells the product worldwide, including in Australia. The complaint alleges that the defendants are directly selling Comfortis in the United States through their websites. The complaint alleges that the defendants are selling the Australian version of Comfortis, which does not comply with various FDA requirements including that it only be sold by a licensed veterinarian. The complaint states that Lilly sent the defendants a letter in March 2010 demanding that they cease their sales of Comfortis. The defendants stopped selling Comfortis to United States customers for a brief period, but then resumed. The complaint makes claims of trademark infringement, unfair competition, cybersquatting, and Indiana state law unfair competition. Lilly is seeking an injunction, damages, the transfer of domain names, and for the defendants to send a letter to all U.S. customers who bought Comfortis from the defendants instructing that the product should not be used.

Practice Tip: All of the defendants here are Australian citizens or companies. Expect them, if they file an appearance at all in the case, to raise issues of jurisdiction.

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Evansville, IN – Parents try to protect their children from playground hazards. Now there is a new threat to watch out for – patent infringement.

Patent lawyers for Plaintiff, INDIAN INDUSTRIES, INC. d/b/a Escalade Sports of Evansville, IN, have sued Defendant RAINBOW PLAYSYSTEMS, INC. of Brookings, South Dakota alleging it has infringed patent no. 8,002,642, Thumbnail image for Playground.jpgPLAYSET SYSTEM COMPONENTS, which has been issued by the US Patent Office.

The Complaint alleges that Rainbow’s “Turbo Sunshine Castle, Turbo Sunshine Clubhouse, Rainbow Castle Supersized, and King Kong Quarter Turned Club Playsets” infringe Indian’s “curved rail panels” feature. Although parents seek to protect their children from “playground injuries,” Indian alleges that the accused playsets cause it “irreparable injury.”

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Asheville, NC – Patent attorneys for Borg Warner, Inc. of Auburn Hills, Michigan and Borgwarner Turbo Systems, Inc. of Arden, North Carolina have filed a patent infringement suit in the Western District of North Carolina alleging Cummins, Inc. of Columbus, Indiana, Cummins Turbo Technologies Limited of the United Kingdom, and Cummins Turbo Technologies of North Charleston, South Carolina BW Turbochargers.jpginfringed patent no. 6,904,949, Method of making turbocharger including cast titanium compressor wheel; along with patent no’s. 6,629,556 and 6,663,347, Cast titanium compressor wheel, which have been issued by the US Patent Office. These patents are known collectively as “the Borg Warner Compressor Wheel Patents”.

The patents at issue are designs for and methods of manufacturing titanium compressor wheels for use in turbocharger applications. Bloomberg.com described the technology “directing air into an engine’s manifold.” The complaint alleges that Cummins infringes the Borg Warner patents by importing, making, selling, and offering for sale devices created by the patented methods. Borg accuses Cummins of directing its foundries to use the patented methods. The complaint makes three claims of patent infringement and seeks an injunction, damages and attorney fees.

Practice Tip: According to Reuters.com, patent lawyers for Borg Warner filed a similar patent infringement lawsuit against Honeywell, which resulted in a $32.5 million settlement in favor of Borg Warner.
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Indianapolis, IN – Patent lawyers for Minka Lighting, Inc. of Corona, California filed a patent suit in the Southern District of Indianaalleging Fanim Industries, Inc. of Zionsville, Indiana, Fanimation, Inc. of Indianapolis, Indiana and Lowes Companies, Inc. of Mooresville, North Carolina infringed Patent no. 7,481,626 Ceiling fanMinkaFan.gif with integrated fan blades and Housing, Patent no. D535,387 Ceiling fan blade assembly, and Patent no. D535,388 Ceiling fan blade which have been issued by the US Patent Office.

Minka manufactures, markets and sells home products including ceiling fans, and Fanim is a competitor in the ceiling fan industry. Lowe’s distributes and markets ceiling fans and is also a competitor of Minka. The complaint alleges that Fanim and Lowe’s sell a line of ceiling fans called the “Goldey” that infringes the ‘626, ‘387 and ‘388 patents. The complaint makes three claims of patent infringement and seeks damages, an injunction, attorney fees and costs.

Practice Tip: According to PACER, Minka sued Fanimation in the Southern District of Indiana in 2009 also alleging that Fanimation infringed the ‘626 patent. In the 2009 case, the parties agreed to dismiss the case with prejudice. The stipulation of dismissal referenced that Minka was in the process of applying for re-issue of the ‘626 patent.
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Hammond, IN – Copyright attorneys for Abandoned Property, LLC have filed a copyright infringement suit against Netcentric Publishing. LTD. and Stacie Kellams and others. The lawsuit alleges that Abandoned Property AbandonedProperty.jpgdeveloped a course called “We’re hooked on overages” that teaches people how to recover amounts owed to them by various taxing authorities. Allegedly, the Defendants “purchased a copy of Plaintiff’s phenomenal course in January, 2010, but did so under what appears to be an alias, “Luke Matthews.””The complaint then alleges that the Defendants began selling a competing Course that was “identical” to the Plaintiff’s Course for $997.00 each.

The suit alleges various causes of action including Copyright Infringement, Misappropriation of Trade Secrets, Breach of Contract, Fraudulent Inducement, Declaratory Judgment and “Vicarious Liability.”

This may be a retaliatory suit. On July 18, 2011, Netcentric Publishing’s lawyer filed a suit against Abandoned Property and Joe Kaiser in Austin, Texas asserting claims for business disparagement, defamation, fraud, and tortious interference with existing and prospective business relationships. That case is in the Western District of Texas, Cause No. 1:11-cv-602.

Practice Tip: Plaintiffs complaint appears to suffer from several defects. It does not explicitly allege that the Plaintiff owns a Copyright Registration for its work, which is a prerequisite to filing a copyright infringement suit pursuant to 17 U.S.C. § 412. Also, it will be interesting to see how the Plaintiff can contend that its Course is a “trade secret,” in view of the fact that they make their Course available for purchase over the Internet. It is also not evident how the Plaintiff expects to assert personal jurisdiction over the defendants, who are in Texas.

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Indianapolis, IN – Trademark lawyers for American Petroleum Institute (“API”) of Washington, D.C. filed a trademark infringement suit in alleging Tailor Made Oil Co., LLC of Cambridge City, Indiana, TMO Oil, LLC of Fishers, Indiana, Circle Town Oil of Fishers, Indiana, William R. Selkirk and Rebecca Selkirk of Cambridge City, Indiana, Lincoln R. Schneider of Fishers, Indiana and Jafarikal Corporation of Rosedale, New York infringed trademark registration no. 1,864,428 for the AMERICAN PETROLEUM INSTITUTE CERTIFIED STARBURST registered with the US Trademark Office.

The trademark at issue is a starburst mark used by APIStarburst.gif to designate that products have met certain quality standards, which are monitored and enforced continuously. The complaint alleges that the individual defendants own and operate the corporate defendants as an interrelated business that offers low quality engine oil for sale. In March 2010, Tailor Made obtained certification for its engine oil, and a one year license to use the starburst mark on its products. In order to renew the one year license, Tailor Made was required to report its sales and to pay a renewal fee to API. Tailor Made failed to comply with these requirements and has continued to sell products bearing the trademarked starburst without authorization.

The complaint also states that API obtained a sample of the engine oil in April 2011 and found that the oil did not meet API’s quality standards. API claims that Tailor Made and Circle Town maintain websites that falsely advertise that their engine oil meets the API quality standards. Jafarikal is a distributor of Tailor Made Oil products and also advertises that Tailor Made’s products meet or exceed API’s standards. API has made claims of trademark counterfeiting under the Lanham Act, trademark infringement, false advertising, unfair competition, trademark dilution, breach of contract, common law trademark infringement and unfair competition, fraud and forgery. API is seeking an injunction, statutory damages of $1,000,000 per type of good sold, seizure and destruction of any infringing products, actual and treble damages, attorney fees and costs.

Practice Tip: Here, API has cited 15 U.S.C. § 1117(c)(2) for its request of statutory damages for each class of goods sold with a counterfeit mark. This section of the Lanham Act caps damages at $2,000,000 for willfully selling, offering, or distributing a type of good with a counterfeit mark.
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Indianapolis, IN – A trademark infringement case that was originally filed in Hamilton County Superior Court has been removed to the Southern District of Indiana. On September 14, 2011 trademark lawyers for Saeilo Enterprises, Inc. Pearl River, New York filed a trademark infringement suit in Hamilton County alleging Jacobson Hat Company, Inc. of Scranton, Pennsylvania infringed trademark registration no.2,885,628 for the words TOMMY GUN registered with the US Trademark Office and 20090707-13956, 20090707-13957 and 20090707-13958 for TOMMY GUNTommy gun.jpg design registered trademarks in the State of Indiana State. Trademark attorneys for Jacobson filed notice of removal to have the case heard by the federal Southern District of Indiana, rather than the Hamilton County court, based upon the fact that Saeilo makes federal law trademark infringement claims.

The complaint alleges that Jacobson has distributed, advertised or sold toy guns bearing the Tommy Gun trademarks without Saeilo’s authorization. The complaint does not reveal any details of the allegedly infringing sales, advertising or distribution. However, a print-out of Jacobson’s website, dated October 2009 was attached to the complaint. The complaint makes claims of trademark infringement, trademark dilution, false designation of origin, false advertising, trade dress infringement, common law trademark infringement, unfair competition, counterfeiting, and Indiana state law trademark infringement.

Practice Tip: This is the third trademark infringement case in the past several months that Saeilo filed in Hamilton County court, only to be removed to federal court. In all three cases, Continental Enterprises, which is an Indianapolis corporation that claims to “non-traditional strategies to combat infringers domestically and around the globe and provide effective solutions for seemingly intractable IP problems,” has represented Saeilo. Indiana Intellectual Property Law and News has blogged about the two other cases: one was against BuzzBee Toys and the other was against Scottwerx. According to PACER, trademark attorneys have reached a settlement in the Buzz Bee case. The terms of the settlement are undisclosed. The Scottwerx case is still pending.
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Terre Haute, IN – Trademark lawyers for Century 21 Real Estate LLC of Parsippany, New Jersey filed a trademark infringement suit in the Southern District of Indiana alleging Realty One Limited of Sullivan, Indiana and Steven Ault of Indiana infringed Century 21’s trademarks and service marks. Century 21 has numerous trademarks and services marks registered with the US Trademark Office

According to the complaint, Mr. Ault is the proprietor of Realty One, which is alleged to be doing business as Century Twenty-one Realty One in Sullivan, Indiana. The complaint states that beginning in 1984, Realty One began operating a Century 21 franchise in Sullivan, Indiana. The franchise agreement allowed Realty One to use the Century 21Century 21 Logo.JPG trademarks and services marks and required Realty One to pay Century 21 a royalty and advertising fees as a percentage of the franchise’s gross sales. The agreement also allowed Century 21 to audit the records of Realty One. Mr. Ault personally guaranteed the franchise agreement. Century 21 terminated the franchise agreement effective July 2011, alleging that Realty One had breached the agreement by failing to pay amounts due to Century 21, failing to report and pay on closed transactions and failing to pay early termination fees. Pursuant the agreement, Realty One was to cease using Century 21 trademarks and services marks, however, it is alleged that Realty One continued to use them both in Sullivan, Indiana and in online marketing. It is also alleged that Realty One has created a new logo that is confusingly similar to Century 21’s trademark. Trademark attorneys for Century 21 have made claims of trademark infringement, false designation of origin/false advertising, trademark dilution, common law unfair competition, breach of contract, audit demand, and unjust enrichment. Century 21 seeks an injunction, damages, an accounting, attorney fees and costs.

Practice Tip: Normally a franchisee must immediately stop using and return all items with trade or services marks if the franchise agreement is terminated. Here, the franchise agreement appears to have lots of “teeth” to be used against a non-complying franchisee. The contract appears to allow Century 21 to collect liquidated damages as well as costs and attorney fees with an 18% interest rate on delinquent payments. The contract also required Mr. Ault to personally guarantee these obligations and to be personally liable for costs and attorney fees. Century 21 has been aggressive in defending its trademark rights. Trademark attorneys for Century 21 filed a similar suit earlier this year in the Northern District of Indiana.
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Indianapolis, IN – French Lick Resorts and Casino Group has been sued in the Southern District of Indiana by Pamela Mougin for Copyright Infringement, violation of the Visual Artist Rights Act (17 USC § 106A), Breach of Contract and Unjust Enrichment. The West Baden Hotel is a historic hotel in Southern Indiana that was extremely popular in the early 1,900’s. However, it fell in to disrepair. In the 2,000’s it was restored in connection and converted into a hotel / casino in an effort to revitalize the economically depressed region.

Copyright attorneys for Ms. Mougin allege that in 2006, she was commissioned by a Colorado Interior Design firm, Worth Group, to create “an archival hand-painted canvas series of angels with topography of story for the resorts Resort Dome.jpgWest Baden Hotel, featuring angels from an existing work in the dome of the resorts hotel.”

Later, in November, 2007, Mougin claims she entered into an agreement with the hotel whereby, in exchange for $2,800 she granted permission on a “one time print agreement only” to make “large prints to be displayed at the resort West Baden Hotel.” Allegedly, in the agreement, the hotel acknowledged Mougin’s Copyrights in the Works.

Copyright lawyers for Mougin further claim that on October 13, 2008, she discovered that additional “3D relief productions of the Works were present in the upper lobby mezzanine of the hotel” and at least 48 outdoor banners hanging on light posts. She alleges she notified the French Lick Resort of Copyright Infringement that same day.

The lawsuit was filed October 11, 2011, apparently two days before the 3 year Copyright statute of limitations would have run on the copyright claim.

Practice Tip: This lawsuit raises several interesting issues, among them, the scope of Copyright in Ms. Mougin’s work, since the complaint alleges that she made her angels from copies of what was preexisting at the hotel. The complaint also raises issues of the interplay between Copyright Infringement and Breach of Contract, as Mougin admits that the hotel had rights in the Copyrighted Works, although Mougin claims the scope of that license has been exceeded. Also, it appears that Ms. Mougin’s claim for Unjust Enrichment is preempted by the Copyright Act, as its only factual basis appears to be acts that would constitute copyright Infringement. It is unclear why Worth Group is named a Defendant; as no specific actions of it are implicated.
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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
Phone: 317.891.1500
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