New Litigation

July 15, 2011

Eli Lilly Company Sues APP Pharmaceuticals LLC for Patent Infringement of Chemotherapy Drug

Indianapolis, IN – Patent lawyers for Eli Lilly Company of Indianapolis, Indiana filed a patent infringement judgment suit in the Southern District of Indiana alleging APP Pharmaceuticals LLC of Schaumburg, Illinois infringed patent no.7,772,209 , Antifolate combination therapies, which has been issued by the US Patent Office.

The complaint states that APP has filed an abbreviated new drug application with the Food and Drug Administration seeking to sell a generic version of the drug ALIMTA, which is patented by Lilly, prior to the expiration of the patent. Lilly alleges that APP will begin to market and sell the generic drug. ALIMTA is a chemotherapy drug used to treat mesothelioma and other lung cancers. Lilly’s patent attorneys contend that the marketing and sale of APP’s generic version will infringe Lilly’s patent. The complaint alleges two counts of patent infringement and seeks a judgment of infringement, injunction, costs and attorney’s fees.

Practice Tip: This case has been filed before APP actually marketed or sold any of the infringing product. Rather, Lilly appears to have become concerned about infringement due to the new abbreviated new drug application and notice that APP provided to Lilly. It is common for a patent infringement lawsuit, seeking an injunction and declaratory judgment, to be filed after a new abbreviated new drug application is filed with the Food and Drug Administration. The Patent Act, 35 U.S.C. § 283, allows a court with jurisdiction to grant an injunction “to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.”

July 15, 2011

Broadcast Music, Inc. et al Sues Bertee’s Inc. et al for Copyright Infringement of Musical Composition

By Overhauser Law Offices, LLC

Indianapolis, IN – Copyright lawyers for Broadcast Music Inc. (“BMI”) of New York, New York and fifteen music publishing companies filed a copyright infringement suit in the Southern District of Indianaalleging Bertee’s Inc. d/b/a Bertee’s Sports Café and Kelly D. Kendrick of Fortville, Indiana infringed eight copyrighted songs that have been registered by the US Copyright Office.

The complaint states that BMI is the exclusive license holder of the eight copyrighted songs at issue and that the other plaintiffs are the owners of the copyrights. The complaint alleges that the eight songs were performed at the Bertee’s Sports Café in Fortville on December 18, 2010 without authorization. The eight songs at issues are: Givin’ It Up For Your Love by Jerry Williams, Good Times by Nile Rogers, Jessie’s Girl by Rick Springfield, On the Dark Side by John Caffery, Kryptonite by Bradley Kirk Arnold, Tennessee by Arrested Development, Wherever You Go by Alex Brand and Name by John Rzeznik. Copyright attorneys are seeking an injunction, damages, costs and attorneys fees.

Practice Tip: In this case, the plaintiffs have sued Kelly Kendrick, the owner of Bertee’s Sports Cafe personally. 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.

July 14, 2011

BMI Sues Diamond Investments Inc. D/B/A The Juke Box Live for Copyright Infringement of Eight Songs

By Overhauser Law Offices, LLC

Indianapolis, IN – Copyright lawyers for Broadcast Music, Inc. (“BMI”) of New York, New York and fourteen music publishing companies filed a copyright infringement suit in the Southern District of Indianaalleging Diamond Investments Inc. d/b/a The Juke Box Live , and Salvatore T. Mazza of Franklin, Indiana infringed eight copyrighted songs that have been registered by the US Copyright Office.

The complaint states that BMI is the exclusive license holder of the eight copyrighted songs at issue and that the other plaintiffs are the owners of the copyrights. The complaint alleges that the eight songs were performed at the Juke Box Live in Franklin on March 19 and 20, 2011 without authorization. The eight songs at issues are: Every Rose Has Its Thorn by Brett Michaels, Family Tradition by Hank Williams, Jr., Keep Your Hands to Your Self by Dan Baird, Lady Down on Love by Randy Owens, Baby Got Back by Anthony L. Ray, Courtesy of The Red, White and Blue by Toby Keith Covel, Play Something Country by Terry McBride, and Gunpowder and Lead by Miranda Lambert. Copyright attorneys are seeking an injunction, damages, costs and attorneys fees.

Practice Tip: In this case, BMI is the exclusive licensor to rights to play the songs listed. Unless a proper license is received, a bar or other establishment plays or allows a band to play music that has been registered with the US Copyright Office may commit copyright infringement. These types of cases are very friendly to the intellectual property owner, and a plaintiff is entitled to attorney’s fees from the defendant.

July 6, 2011

Century 21 Real Estate LLC Sues Destiny Real Estate Properties LLC for Trademark Infringement of Service Mark

By Overhauser Law Offices, LLC

South Bend, IN – Trademark lawyers for Century 21 Real Estate LLC Parsippany, New Jersey filed a trademark infringement lawsuit in the Northern District of Indiana alleging Destiny Real Estate Properties LLC, f/d/b/a Century 21 Destiny Real Estate of Lowell, Indiana and Daniel Sutton, the owner of Destiny Real Estate Properties LLC, infringed Century 21’s trademarks and service marks.

According to the complaint, Destiny was a Century 21 real estate sales franchise beginning in June 2007. Century 21 alleges that Destiny failed to make payments of franchise fees in the amount of approximately $113,000 due under the franchise agreement, and as a result Century 21 terminated the franchise agreement on March 18, 2011. Century 21’s trademark attorneys allege that Destiny continued to use the Century 21 marks following the termination of the franchise agreement, including online at www.century21destiny.com. The complaint makes claims of trademark infringement, false designation of origin/false advertising, trademark dilution, common law unfair competition, breach of contract, unjust enrichment, and for an accounting.

Practice Tip: When a franchise agreement terminates, typically the franchisee must promptly cease using and return all signs and other equipment containing trademarks. Failure to do so may result in a lawsuit for breach of contract as well as trademark infringement.

June 30, 2011

Update to Hard Drive Productions BitTorrent Copyright Infringement Case: John Doe Letters Ask Court Not to Allow Discovery

By Overhauser Law Offices, LLC

Indianapolis, IN – Several anonymous letters have been sent to the Southern District of Indiana regarding the Hard Drive Productions Copyright infringement case, all opposing any discovery attempts in the case that might reveal the identities of persons alleged to have illegally downloaded pornographic videos. Intellectual Property Law News has reported recently on three copyright infringement lawsuits filed in the Southern District of Indiana involving file sharing of adult entertainment videos via BitTorrent: the Hard Drive Productions case, the Boy Racer case and the First Time Videos case.

In an unusual procedural move, three anonymous letters, signed “John Doe,” were sent to the Court to protest the lawsuit and pre-emptively attack potential discovery efforts by the plaintiff that might reveal the identities of the “John Does,” who are accused of illegally sharing adult videos using BitTorrent. The first letter calls the case “wrongful harassment of internet subscribers” and states “Mr. Steele and lawyers attempting to the same scheme of intimidation will eventually be in contact with me to demand several thousand dollars not to sue ME for downloading this pornography file if Your court permits subpoena[.]” It points out the ease at which I.P. addresses could be forged and that wireless internet service can be used by a person other than the owner of the I.P. address, a concern that has been reported in Time Magazine.

A second letter points out to the court that in another similar case, discovery requests were denied by the Central District Court of Illinois and the Northern District of California. One court order attached to the letter says “The infringer might be the subscriber, someone in the subscriber’s household, a visitor with her laptop, a neighbor, or someone parked on the street at any given moment.”

Hard Drive filed a response to one of the letters, stating: “The Court is fully capable of protecting each defendant’s due process rights and ascertaining the quality of evidence presented at this proceeding. The anonymous letter expresses fear to the contrary, but these fears are not a good justification for curtailing discovery of the identities of those who have conspired to pirate copyrighted material.”

Practice Tips: We note the letters were sent from anonymous “John Does.” Had the writers identified themselves, they would have opened themselves to service of process and risked giving up several defenses including personal jurisdiction, which is an issue raised by one letter.

June 27, 2011

Williams Industries Inc. Sues Trevis Tumbler Company to Invalidate Trademark on Tumblers

By Overhauser Law Offices, LLC

Indianapolis, IN – Trademark lawyers for Williams Industries Inc. of Shelbyville, Indiana filed a trademark lawsuit in the Southern District of Indiana seeking to invalidate trademark registration no. 3,081,577 and trademark registration no. 2,862,871 for the mark TRITAN DOUBLE WALL TRUMBLER, which have been registered with the US Trademark Office and are owned by Trevis Tumbler Company of Venice, Florida.

The complaint states that Williams manufactures a line of plastic drinking tumbler, and that Williams has a business relationship with Hit Promotions, Inc. whereby Hit purchases and sells the Williams tumbler. Hit received a cease and desist letter from Tervis in June 2011, stating that Tervis owned the trademarks at issue and claiming that the Williams tumblers infringe the trademarks. In response, Hit stopped selling Williams’ tumbers. Williams claims the trademarked design is simply a “horizontal line” and similar designs have been used on plastic tumblers from various manufacturers for many years. Williams alleges that another company, Signature USA of Minnesota, has sold tumblers with the trademarked design for over 25 years. Williams is seeking a judgment invalidating and rendering unenforceable the ‘577 and ‘871 trademarks, claiming that Tervis made false statements in its trademark application regarding Tervis’s exclusive use of the “horizontal line” design and that the design is generic. Williams’ trademark attorneys have also made claims of tortuous interference with business relationship and common law unfair competition.

According to the Indianapolis Business Journal, Tervis’s tumbler business has grown to $75 million.

Practice Tip: The Lanham Act, 15 U.S.C. § 1119, does provide the federal courts with the power “to order the cancelation of registrations, in whole or in part, restore canceled registrations, and otherwise rectify the register with respect to the registrations of any party to the action. Decrees and orders shall be certified by the court to the Director, who shall make appropriate entry upon the records of the Patent and Trademark Office, and shall be controlled thereby.”

June 23, 2011

Bear Archery, Inc. Sues Impact Archery, Inc. for Patent Infringement of Bow Sight with Fiber Optics.

By Overhauser Law Offices, LLC

Evansville, IN – Patent lawyers for Bear Archery, Inc. of Evansville, Indiana, filed a patent infringement lawsuit alleging Impact Archery, Inc. of Alpharetta, Georgia, infringed Patent Nos. 7,159,325 and 7,343,686, both called, BOW SIGHT WITH FIBER OPTICS which has been issued by the US Patent Office.

Bear Archery owns the rights to the ‘325 and ‘686 patented bow sights. The Compliant alleges that Impact Archery “has manufactured and continues to manufacture, use, sell, offer to sell and distribute fiber optic sights which infringe certain claims of the Patents-In-Suit.” Bear Archery seeks a declaratory judgment, injunction, impounding order, damages, costs, and attorney’s fees.

This case has been assigned to Chief Judge Richard L. Young and Magistrate Judge William G. Hussmann in the Southern District Court, and assigned Case No. 3:11-cv-00079-RLY-WGH.

Practice Tip: Bear Archery has been aggressive in defending its patent rights, and appears to have been involved in about ten patent infringement lawsuits in the Southern District of Indiana since 2007.
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June 20, 2011

Indian Industries Seeks Non-Infringement Declaration over Tethered Ball Practice Device Patent Owned by Swingaway Sports Products

By Overhauser Law Offices, LLC

Evansville; IN – Patent lawyers for Indian Industries, Inc. of Evansville, Indiana filed a patent infringement lawsuit in the Southern District of Indiana seeking a declaratory judgment that it is not infringing Patent No. 5,795,250 Tethered ball practice device, which has been issued by the US Patent Office and is assigned to SwingAway Sports Products, Inc. of Lubbock, Texas

The complaint states that the patent lapsed in September, 2010 due to failure to pay the required maintenance fee. Indian Industries, doing business as Escalade Sports, learned of the lapse in November 2010 and began developing a product similar to the patented technology, which culminated in sales and marketing of a product called the Springer Trainer batting trainer. The complaint states Escalade Sports marketed the new product at a trade show on June 18, 2011. The owner of SwingAway observed the new product, approached Escalade employees and alleged that the new product infringed the ‘250 patent. On that date, SwingAway contacted the US Patent Office and paid the fee for the ‘250 patent. The complaint alleges that SwingAway partners with Mid-America Sports Advantage in Jasper, Indiana.

Practice Tip: Escalade Sports claims it is entitled to the defense of absolute intervening rights, 35 USC 41(c)(2). That provision does provided that anyone who begins using, manufacturing or selling a product using the patented technology during the period when the patent has lapsed will generally not be liable for patent infringement. The court, in such cases, may allow the person to continue utilizing the patented technology, even if the patent maintenance fee is then paid.

June 20, 2011

DIRECTV Sues Corner Bar & Grill For Copyright Infringement for Improper Interception Of NFL Games

By Overhauser Law Offices, LLC

Evansville, IN – Copyright lawyers for DIRECTV of California filed a copyright infringement lawsuit in the Southern District of Indiana alleging that Kevan Tally and Michael Schnell, owners of McGahery Enterprises, Inc., which operates the Corner Bar & Grill in Evansville, Indiana infringed copyrighted NFL games by illegal intercepted and unencrypted satellite signals.

The complaint alleges that on October 17, 2010, Mr. Schnell and Tally, displayed NFL games publicly at the Corner Bar and Grill without the authorization of DIRECTV. The complaint states that the Corner Bar did not have a paid DIRECTV subscription, yet received and unencrypted DIRECTV satellite signals in violation of the Cable Communications Act. DIRECTV claims the bar and its owners received financial benefit from the display of NFL games. DIRECTV is seeking statutory damages of $1000 to $10,000 for each violation and $10,000 to $100,000 for each willful violation as well as an injunction to prevent further display of illegal intercepted transmissions. Copyright attorneys for DIRECTV have also made a claim of civil conversion, alleging that the defendants intentionally and wrongfully deprived DIRECTV of proprietary interests.

Practice Tip: Most satellite signal providers employ encryption to limit reception to certain groups, such as paying subscribers. If an individual has a “residential” agreement with a satellite provider, this does not give them the right to display the performance in a public setting like a bar or restaurant. Both the satellite signal providers and the owners of the copyrighted content are typically quite aggressive about enforcing their copyrights.

June 17, 2011

Medical Monitoring and Paging LLC Sues Philips Electronics for Patent Infringement of System and Method for Automatic Critical Event Notification.

By Overhauser Law Offices, LLC

Indianapolis; IN – Patent lawyers for Medical Monitoring and Paging LLCof Newport, California filed a patent infringement lawsuit in the Southern District of Indiana alleging Philips Electronics North America Corporation of Andover, Massachusetts, Oridion Capnography, Inc. of Needham, Massachusetts, IWT Solutions, Inc. of Evansville, Indiana, and Oxford Biosignals, Inc. of Indianapolis,Indiana infringed Patent No. 5,942,986, System and method for automatic critical event notification, which has been issued by the US Patent Office.

The complaint alleges that each defendant manufactures, provides, sells, offers for sale, imports and/or distributes products and services that infringe the patent at issue, which is described as “a novel and clinically important critical event notification system that can continuously monitor patient statistics and lab data to detect complex critical events[.]” The complaint states that each defendant has developed and now sells its own system performing similar functions and that each defendant’s system infringes Medical Monitoring’s patent.

Practice Tip: The plaintiff here has alleged that each defendant separately developed and markets an infringing system. While two of the defendants are Indiana companies, the other two defendants are not located in Indiana, and the complaint does not state a basis for bringing the claims against them in the Indiana district court.