Trademark Infringement

June 24, 2016

Indiana Trademark Litigation: Fitness Studio Operator Accused of Trademark Infringement, Fraud

Indianapolis, Indiana – A Massachusetts trademark lawsuit filed in July 2015 was transferred to the Southern District of Indiana, Indianapolis Division. Plaintiff Get In Shape Franchise, Inc. (“GIS”), a Massachusetts-based franchisor, alleges that Defendants TFL Fishers, LLC and its sole member, Rosalyn Harris; Thinner For Life, Inc.; and Fit Chicks, LLC, all of Fishers, Indiana infringed its intellectual property rights. GIS asks the Indiana federal court: (1) to order the discontinuation of Defendant’s infringement of its registered trademarks; (2) for injunctive relief due to breach of contract, unfair competition and breach of the covenant of good faith; (3) to order compliance by Harris of her post-contractual obligations.

GIS sells fitness franchises under the service mark “Get In Shape For Women.” Registration Certificates for Plaintiff are as follows:

MARK	Reg. No.	Reg. Date
“Get in Shape for Women”	Service Mark Reg. 3,374,173	Jan. 22, 2008
“Your treatment is complete”	Service Mark Reg. 4,241,902	Nov. 13, 2012
“Get in Shape for Women Small Group Personal Training”	Service Mark Reg. 4,249,694	Nov. 27, 2012

Plaintiff contends that it entered into such a franchise agreement with TFL Fishers and Harris in April 2013 for use in the Fishers, Indiana market. This agreement provided for payment to the franchisor of a transfer fee as well as a royalty on the franchise’s gross sales. Plaintiff contends that, pursuant to the agreement, Harris also agreed to various restrictions on her activities, including prohibitions on certain activities that would compete with GIS.

According to the complaint, Harris notified GIS on June 24, 2015 that TFL Fishers was discontinuing its franchised business and had closed its Fishers fitness studio. Instead, contends Plaintiff, it discovered on June 30th that the Fishers studio continued to operate but that it had changed its name to “Fit Chicks.” GIS alleges that this was improper. It also accuses Defendants of other wrongful acts, such as willfully underreporting total sales and, consequently, underreporting the royalty fees due to GIS.

Trademark attorneys for Plaintiff list the following claims for the Indiana federal court’s review and adjudication:

• First Cause of Action: Violation of the Lanham Act
• Second Cause of Action: Breach of Contract – Injunctive Relief
• Third Cause of Action: Breach of Contract – Damages
• Fourth Cause of Action: Breach of the Covenants of Good Faith and Fair Dealings
• Fifth Cause of Action: Unjust Enrichment
• Sixth Cause of Action: Unfair Competition

• Seventh Cause of Action: Fraud

Plaintiff seeks damages, including treble damages, along with enforcement of the franchise agreement, equitable relief, attorney’s fees and costs.

June 20, 2016

Indiana Trademark Litigation: Botanic Gardens Asserts Infringement of 91-Year-Old Trademark

By Overhauser Law Offices, LLC

Hammond, Indiana – Trademark attorneys for Plaintiff Indiana Botanic Gardens, Inc. of Hobart, Indiana sued Defendant Snyder Manufacturing Corporation of Long Beach, California, which does business as Eurospa Aromatics and Eurospa Chemicals, alleging trademark infringement and related causes of action.

At issue in the lawsuit is U.S. Trademark Registration No. 1,327,965 for the trademark EUCAMINT for camphorated ointment. Plaintiff states that it owns this registration, which was issued April 2, 1985. It also states that the mark was first used in commerce in 1925. Plaintiff contends that Defendant’s use of EUCAMINT to market an aromatic shower mist infringes its trademark.

This litigation, filed by Indiana trademark lawyers for Plaintiff, asserts the following causes of action:

• Count I: Federal Trademark Infringement
• Count II: Unfair Competition Under Federal Law

• Count III: Common Law Trademark Infringement and Unfair Competition Under Indiana Law

Plaintiff Indiana Botanic Gardens claims that Defendant Snyder Manufacturing acted intentionally and willfully in an attempt to trade upon the goodwill of the EUCAMINT trademark. Plaintiff asks that the court order the payment of damages, including punitive damages. It also seeks equitable relief, costs and attorneys’ fees.

June 6, 2016

Indiana Trademark Litigation: Brew Pub Accused of Infringing Use of Yeti Trademarks

By Overhauser Law Offices, LLC

New Albany, Indiana – Trademark attorneys for Plaintiff Great Divide Brewing Company of Denver, Colorado filed an infringement lawsuit in the Southern District of Indiana against Defendant Red Yeti Brewing Company, Inc. of Jeffersonville, Indiana.

Defendant is listed in the complaint as the owner of a restaurant and brewery named “Red Yeti Brewing Co.” a/k/a “Red Yeti Restaurant and Brewpub.” The complaint asserts that Red Yeti Brewing Co. wrongfully employs the term “Yeti” and a yeti design in its marketing.

Specifically, Plaintiff contends that Defendant Red Yeti’s conduct infringes two of its trademarks, U.S. Trademark Registration No. 2,957,257 for a Yeti word mark and U.S. Trademark Registration No. 4,115,050 for a Yeti design mark. Both have been registered by the U.S. Patent and Trademark Office.

Plaintiff asserts that Red Yeti’s actions constitute a deliberate attempt to trade upon Defendant’s goodwill and reputation and that its actions are willful and malicious. In this Indiana federal lawsuit, filed by trademark lawyers for Plaintiff, the following claims for relief are listed:

• Trademark Infringement in Violation of 15 U.S.C. § 1114(1)
• Unfair Competition – False Designation of Origin in Violation of 15 U.S.C. 1125(a)
• Federal Dilution
• Common Law Unfair Competition
• Common Law Trademark Infringement

• Deceptive Trade Practices in Violation of C.R.S. § 6-1-113

Great Divide seeks damages, including punitive damages, along with equitable relief, costs and attorneys’ fees.

May 18, 2016

Indiana Trademark Litigation: Bedding Wholesaler Sues Competitor Alleging Infringing Use of “Bamboo Luxury” Mark

By Overhauser Law Offices, LLC

Hammond, Indiana – Plaintiff Duke Imports Inc. of Angola, Indiana sued in the Northern District of Indiana alleging that Defendant All That Jazz Trading LLC of LaGrange, Indiana infringed its trademark for BAMBOO LUXURY.

Duke, a wholesaler of bedding, towels and related products asserts ownership to Trademark Registration No. 4,923,500 for BAMBOO LUXURY, which has been registered by the U.S. Patent and Trademark Office. Duke claims that it first used the trademark in connection with the sale of sheets and other bedding products in April 2015.

It contends that All That Jazz, which also wholesales bedding, towels and related products, has sold sheets using the BAMBOO LUXURY trademark. Duke states that Defendant used BAMBOO LUXURY with “actual and/or constructive knowledge of Duke Imports’ senior use and ownership” of the trademark and that the use was a willful infringement.

In a lawsuit filed by an Indiana trademark attorney, the following claims are asserted against Defendant:

• Count One: 15 U.S.C.§ 1125(a)

• Count Two: Common Law Unfair Competition

Plaintiff seeks damages, equitable relief, attorneys’ fees, interest, and costs.

May 12, 2016

Indiana Trademark Litigation: Usage of “Hyperpure” Alleged to Infringe Hydrapure Trademark

By Overhauser Law Offices, LLC

Hammond, Indiana – A trademark attorney for Plaintiff NIBCO Inc. of Elkhart, Indiana commenced trademark infringement litigation in the Northern District of Indiana.

Defendant in the litigation is Legend Valve & Fitting, Inc. of Auburn Hills, Michigan. It is accused of infringing NIBCO’s HYDRAPURE trademark, which has been registered with the U.S. Patent and Trademark Office under Trademark Registration Nos. 4,296,125 and 4,314,186 in conjunction with the sale of metal pipe fittings.

Plaintiff alleges Defendant’s use of HYPERPURE to market its goods creates an identical commercial impression to Plaintiff’s HYDRAPURE trademark. Calling Defendant’s use “a reproduction, counterfeit, copy, or colorable imitation” of its own trademark, Plaintiff states that Defendant’s use of HYPERPURE will confuse consumers as to the source of the goods.

Plaintiff further contends that Defendant Legend chose the HYPERPURE mark in bad faith in an attempt to associate Defendant’s products with Plaintiff’s trademark and, in so doing, appropriate the goodwill that Plaintiff has built in the brand.

In this Indiana lawsuit, a trademark lawyer for NIBCO lists the following claims:

• Count I: Federal Trademark Infringement
• Count II: Federal Unfair Competition/False Designation of Origin
• Count III: Common Law Trademark Infringement
• Count IV: Common Law Unfair Competition

• Count V: Federal Trademark Dilution

NIBCO asks the court for equitable relief; damages, including punitive damages; costs and attorney fees.

May 6, 2016

Indiana Trademark Litigation: Klipsch Alleges “Grey Market” Seller Infringed Klipsch Trademarks

By Overhauser Law Offices, LLC

Indianapolis, Indiana – An Indiana trademark lawyer for Plaintiff Klipsch Group, Inc. of Indianapolis, Indiana sued Defendant Steve Myers d/b/a HumanAudio in the Southern District of Indiana on allegations of trademark infringement and unfair competition.

Defendant HumanAudio, an eBay seller with its principal place of business in Studio City, California, is accused of offering “grey market” Klipsch products to the public. Klipsch contends that HumanAudio advertises “brand new” Klipsch audio products for sale via Defendant’s eBay store. However, Klipsch states, Defendant’s products are materially different from those purchased from an authorized distributor because the sale through Defendant’s unauthorized store voids the warranty that Klipsch normally provides to the original purchasers of its products. Klipsch also contends that HumanAudio removed the serial numbers on Klipsch goods and replaced them with fake serial numbers.

Klipsch alleges that Defendant has infringed three KLIPSCH trademarks: U.S. Trademark Registration Nos. 978,949; 2,917,215 and 3,863,511. In this Indiana federal lawsuit, the following claims are made:

• Count I: Federal Trademark Infringement in Violation of 15 U.S.C. § 1114

• Count II: Federal Unfair Competition in Violation of 15 U.S.C. § 1125

Plaintiff seeks equitable relief, damages, attorneys’ fees and costs.

May 4, 2016

Indiana Trademark Litigation: RV Maker Asks Court to Settle Dispute over “Edge” Trademark

By Overhauser Law Offices, LLC

South Bend, Indiana – An Indiana trademark attorney for Plaintiff Heartland Recreational Vehicles, LLC of Elkhart, Indiana filed a declaratory judgment lawsuit in the Northern District of Indiana. Defendant is Universal Trailer Cargo Group, Inc., which also does business as Haulmark Trailers. Haulmark Trailers operates locations in Elkhart and Bristol, Indiana.

Plaintiff states that Defendant Haulmark has manufactured and sold race car trailers that are offered under the trademark THE EDGE. Recreational vehicles manufactured and sold by Plaintiff Heartland under the brand EDGE are alleged by Defendant to infringe upon Defendant’s trademark rights.

At issue in the litigation is Haulmark’s trademark, U.S. Trademark Registration No. 3,338,373 for the brand THE EDGE, which applies to “towage storage trailers.” Also at issue is Plaintiff’s pending trademark registration, Application No. 86/768,274 for the brand EDGE, as applied to “recreational vehicles, namely fifth wheels; recreational vehicles, namely toy haulers; recreational vehicles, namely travel trailers.”

While Heartland’s application was passed to publication without any objection by the U.S. Patent and Trademark Office’s trademark examining attorney, Haulmark later informed Heartland that it was opposing the registration of EDGE as applied to Heartland’s goods. A trademark lawyer for Haulmark threatened litigation for “federal claims for trademark infringement” if Heartland did not cease and desist use of the EDGE trademark.

Plaintiff Heartland seeks a declaratory judgment, stating that Haulmark’s threat of litigation has made the dispute ripe for judicial resolution. It asks the court to conclude, given “the actual use of the term EDGE by the parties, the differences between the goods and the markets for the goods of each party to which that term is applied, as well as the price of the respective goods and the channels of trade for each party’s goods,” that there is no likelihood of consumer confusion arising from Heartland’s concurrent use of EDGE as a trademark for its goods.

Heartland asks the court to declare that its use of the term EDGE, as applied to its products, is not an infringement upon any of UTC’s rights and that Haulmark’s THE EDGE trademark should not be construed so broadly as to cover recreational vehicles.

May 2, 2016

Indiana Trademark Litigation: Federal Lawsuit Filed Over Use of “Co-op” Trademark

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana trademark attorneys for Countrymark Refining and Logistics, LLC of Indianapolis, Indiana filed a trademark lawsuit against Coop Fuels Inc. of Morrisville, North Carolina. The complaint asserts direct and contributory trademark infringement, false designation of origin, and unfair competition arising under the Lanham Act as well as claims under Indiana law.

At issue are two trademarks owned by Countrymark, U.S. Registration Nos. 2,657,529 and 2,679,308 for the CO-OP trademark, which have been registered with the U. S. Patent and Trademark Office.

Defendant Coop Fuels is alleged to have infringed these trademarks by using “coop” to market its competing products.

Additionally, Countrymark contends that Coop Fuels has also knowingly induced and materially contributed to its retail partners’ unauthorized adoption and use of Countrymark’s trademarks.

In this lawsuit, Indiana trademark lawyers for Countrymark list the following allegations of wrongdoing:

• Count I: Infringement of Federally Registered Marks – 15 U.S.C. § 1114
• Count II: False Designation of Origin and Unfair Competition – 15 U.S.C. § 1125(a)
• Count III: Contributory Trademark Infringement
• Count IV: Common Law Unfair Competition
• Count V: Deception – Indiana Code § 35-43-5-3(a)(6)
• Count VI: Conversion – Indiana Code § 35-43-4-3

• Count VII: Indiana Crime Victim’s Relief Act- Indiana Code § 35-24-3-1

Countrymark asks the federal court for injunctive relief, actual and treble damages, attorneys’ fees and costs.

April 27, 2016

Indiana Trademark Litigation: Trademark Dispute Between Kimball and Coaster Heads to Federal Court

By Overhauser Law Offices, LLC

Evansville, Indiana – An Indiana trademark attorney for Plaintiff Kimball International, Inc. (“Kimball”) of Jasper, Indiana filed an intellectual property lawsuit in the Southern District of Indiana.

Defendant COA, Inc. d/b/a Coaster Company of America (“Coaster”) of Santa Fe Springs, California is accused of infringing Kimball’s Trademark KIMBALL, Reg. No. 1,180,193, which has been registered with the U.S. Patent and Trademark Office, by using the trademark without authorization.

In addition to direct trademark infringement, Kimball asserts counts of contributory trademark infringement, false designation of origin, unfair competition arising under the Lanham Act as well as violations of the statutes and common law of the State of Indiana.

In particular, Kimball asserts that some of Coaster’s retail partners have infringed the KIMBALL trademark at Coaster’s behest, including retail giant Sears. As an example of this alleged contributory infringement, Kimball cites Bradley Home Furnishings’ website, which Kimball states features an unauthorized “Kimball Bedroom Collection” that originated from Defendant Coaster:

Kimball indicates in the complaint that it first informed Defendant less than a month before this lawsuit was filed that it believed it held superior rights to the KIMBALL trademark but states that Coaster “continues its unlawful use of the KIMBALL Mark and continues to encourage, induce, and materially contribute to its retail partners’ unlawful use of the KIMBALL Mark.”

In this litigation, filed by an Indiana trademark lawyer for Kimball, the following counts are alleged:

• Count I: Infringement of Federally Registered Marks – 15 U.S.C. § 1114
• Count II: False Designation of Origin – 15 U.S.C. § 1125(a)
• Count III: Contributory Trademark Infringement
• Count IV: Common Law Unfair Competition
• Count V: Deception – Indiana Code § 35-43-5-3(a)(6)
• Count VI: Conversion – Indiana Code § 35-43-4-3

• Count VII: Indiana Crime Victim’s Relief Act – Indiana Code § 35-24-3-1

Among other remedies, Kimball seeks equitable relief, actual and treble damages, costs and attorneys’ fees.

April 18, 2016

Indiana Intellectual Property Litigation: Former Employee of Sign Company Accused of Unfair Competition

By Overhauser Law Offices, LLC

Hammond, Indiana – An Indiana attorney for Plaintiff Landmark Signs, Inc. of Chesterton, Indiana filed an intellectual property lawsuit in the Northern District of Indiana.

Plaintiff Landmark states that it has been designing, fabricating, installing, and repairing signs throughout the U.S. for over thirty years. It claims to use at least two trademarks in connection with its business: a “Landmark” trademark, which it claims to have used at least as early as October 1983, and a stylized “Landmark Sign Group” trademark, which it claims to have used at least as early as March 1, 1999.

Landmark states that it holds various trademark rights, including federal trademark Registration No. 2,932,838, which was issued by the U.S. Patent and Trademark Office, as well as state registrations issued by Indiana and Illinois. Landmark also has a pending federal trademark application for “Landmark Sign Group” that seeks intellectual property protection for the mark in connection with services not listed in its currently registered federal trademark.

Defendants in this federal litigation are I C U Outdoor Advertising LLC (“ICU”) and ICU’s owner Lawrence Yurko, both of Valparaiso, Indiana. Yurko is a former employee of Landmark. He and ICU are accused of various violations of federal and Indiana state law, including trademark infringement, deceptive trade practices and using Yurko’s position at Landmark to advance the interests of ICU.

This lawsuit, filed by an Indiana lawyer for Landmark, lists the following claims:

• Count I: Federal Unfair Competition in Violation of 15 U.S.C. § 1125(a)(l)(A)
• Count II: Federal Unfair Competition in Violation of 15 U.S.C. § 1125(a)(l)(B)
• Count III: Breach of Fiduciary Duty
• Count IV: Indiana Unfair Competition and Tortious Interference with a Business Relationship
• Count V: Tortious Interference with a Prospective Economic Advantage
• Count VI: Illinois Deceptive Trade Practices
• Count VII: Federal Trademark Infringement

• Count VIII: Indiana and Illinois Trademark Infringement

Landmark seeks equitable relief, damages, including punitive damages, costs and attorneys’ fees.