Trademark Infringement

February 25, 2021

Rylie Investments LLC Sued for Alleged Trademark Infringement

Indianapolis, Indiana – Apparently, Armored Heating and Cooling Inc. (“AHC”), the Plaintiff, “is a leading provider of residential and commercial HVAC repair, service, sales and installations in central Indiana.” AHC claims the Defendant, Rylie Investments LLC (“Rylie”) also provides HVAC services in Indiana under the name “Armor Air.”

AHC claims to own U.S. Trademark Application Serial No. 90/058,569, U.S. Trademark Application Serial No. 90/084,330 and Indiana Trademark Registration ID 2020000026067 (the “AHC Trademarks”). According to the Complaint, Rylie filed a federal trademark application for the mark “ARMOR AIR” on July 20, 2020 under Application Serial No. 90/061,501. AHC further claims Rylie advertises its HVAC services despite not being a licensed HVAC contractor in Indianapolis, Indiana. Finally, AHC claims customers have been confused between the two companies and customers have complained that Rylie’s services are inferior and of poor quality.

AHC claims Rylie is liable for trademark infringement of the AHC Trademarks, false designation of origin, and unfair competition under the Lanham Act, 15 U.S.C. § 1125(a), and the common law. AHC is further seeking an injunction for trademark infringement pursuant to Ind. Code §§ 24-2-1-13 and 24-2-1-14.

February 15, 2021

Makers of SPLENDA® Sue Speedway for Alleged Trade Dress Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Apparently Heartland Consumer Products LLC (“Heartland”), the Plaintiff, is the owner of the SPLENDA® brand sugar substitute sweetener, which comes in yellow packaging (the “Yellow Trade Dress”). According to the Complaint, Heartland has also used a variety of legally protected trademarks in connection with its SPLENDA® brand products.

In addition to its U.S. trademarks, and common law rights to the Yellow Trade Dress, Heartland also claims to have obtained trademark registrations for the SPLENDA® intellectual property in over 90 countries.

Heartland claims Speedway, LLC (“Speedway”), the Defendant, has “engaged in the active deception of customers through misappropriation of the Yellow Trade Dress in a manner that makes Speedway’s yellow sucralose packets easily mistakable for SPLENDA®’s yellow packets. Per the Complaint, Speedway failed “to provide sufficient cues to the consumer that the yellow sweetener packets in Speedway stores are not the leading brand sucralose-based sweetener sold by Heartland.” Therefore, Heartland claims Speedway’s actions are likely to deceive consumers into believing its sweetener provided in yellow packets is SPLENDA®.

Due to Speedway’s use of yellow packaging for sucralose, Heartland claims it has committed trade dress infringement, trademark dilution, false designation of origin, unfair competition, and false advertising pursuant to the Lanham Act, 15 U.S.C. § 1125. Heartland is seeking enhanced damages and attorneys’ fees under 15 U.S.C. § 1117 because it claims “Speedway’s actions are intentional, willful, and calculated to cause confusion, mistake or deception.” Further, Heartland is claiming common law trade dress infringement under Ind. Code § 24-2-1-15. Next, Heartland is claiming common law unfair competition. Finally, Heartland is claiming trademark dilution under Ind. Code § 24-2-1-13.5.

January 11, 2021

The Trustees of Purdue University Sue for Alleged Trademark Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – The Trustees of Purdue University (“Purdue”), the Plaintiff, claims to own a number of registered and common law trademarks relating to Purdue University and its mascot (the “Trademarks”). According to the Complaint, Defendants, Vintage Brand, LLC and Sportswear Inc., sell Purdue-branded products utilizing the Trademarks without authorization or a license from Purdue. Purdue seeks declaratory judgment that Purdue owns and enjoys common law rights in the Trademarks and that Purdue’s rights are superior to the Defendants’ claim of any rights. Further, Purdue is seeking judgment against the Defendants for trademark infringement pursuant to 15 U.S.C. § 1114. Finally, Purdue is suing for common law passing off/unfair competition and trademark infringement.

Purdue University’s Registered Trademarks

December 18, 2020

Declaratory Judgment Sought Against Dog Trainer Donna Chandler

By Overhauser Law Offices, LLC

Indianapolis, Indiana – According to the Complaint, Donna Chandler (“Chandler”), one of the Defendants and owner of Co-Defendant, Show Colors, Inc. (“Show Colors”), is the author of a canine training book called “Good Dog!” Apparently, Chandler along with Plaintiffs, Kevin DeTrude (“DeTrude”) and Content & Commerce, Inc. (“Content” and collectively “Plaintiffs”), are members of nominal defendant, My K9 Behaves LLC (“My K9”). Content is allegedly in the business of website development and marketing and is owned by Keneth Zweigel (“Zweigel”). Per the Complaint, Chandler, DeTrude, and Zweigel began working on an online instruction course based upon two books written by Chandler (the “Online Class”) in January 2016. The parties apparently also discussed converting the text-based course to a video format.

Two videos were allegedly recorded and paid for by DeTrude in 2016 with a script for a third video written around February 2017. It appears Chandler, Content, and DeTrude officially formed their business on April 4, 2017, but the parties did not execute an Operating Agreement for the business until mid-June 2017, which included clauses assigning all common law and registered trademark and copyrights, including Chandler’s books and the publishing rights to My K9 (the “Assigned Rights”). Upon dissolution or the termination of Chandler’s ownership in My K9, the Assigned Rights would allegedly revert back to Chandler. According to the Complaint, shortly after the Operating Agreement was executed, a third video was recorded and paid for by Zweigel.

As My K9 was experiencing apparent success, the company entered into a Publishing Agreement for a third book to be written by Chandler with the rights assigned to My K9. Allegedly due to the length of time spent writing the book, the first Publishing Agreement was revoked, and a Second Publishing Agreement was put in place. The Plaintiffs claim Chandler then began demanding a greater portion of the profits and ultimately decided if the rights to the third book were not in her name only, she simply would not publish the third book. Chandler then apparently informed DeTrude and Content that she was withdrawing her membership in My K9 and demanded they cease and desist using her name or likeness and re-assign the Assigned Rights back to her.

DeTrude and Content are seeking a declaratory judgment of copyright and trademark ownership “including any derivative or original intellectual property created by or on behalf of My K9. Further, to the extent the Plaintiffs own any of the copyrighted works, they allege Chandler and Show Colors have infringed those works by profiting off the sale of the works individually and not for the benefit of My K9. To the extent Plaintiffs own any trademarks, they are similarly claiming trademark infringement. Plaintiffs have also brought derivative and direct claims for breach of fiduciary duty, usurpation of corporate opportunities, theft and conversion pursuant to I.C. § 35-43-4-3. Finally, Plaintiffs are claiming breach of contract for Defendants’ alleged breach of the Operating Agreement.

November 3, 2020

Indiana Trademark Litigation: JetPro Pilots, LLC Seeks Declaratory Judgment of Non-Infringement

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – JetPro Pilots, LLC, the Plaintiff, apparently recruit, staff, and provide pilots, flight attendants, and technicians to its clients for use on their aircrafts. According to the Complaint, Defendants, Jet Pro, Inc. and Keith Kenneally, offer freight brokerage and forwarding services. The Defendants allegedly sent a cease and desist letter to JetPro Pilots claiming JetPro Pilots was violating Defendants’ U.S. Registration No. 3,186,308 (the “Jet Pro, Inc. Mark”). JetPro Pilots claims to have been in business since 2009 with the first allegation relating to confusion arising out of its use of the phrase “Jet Pro” coming from Defendants in July 2020, with no actual consumer confusion in the eleven years of co-existence.

Believing this to be a credible threat of immediate litigation, JetPro Pilots filed suit for a declaratory judgment for unenforceability of a trademark and a declaration of non-infringement pursuant to the Trademark Laws of the United States and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. JetPro Pilots asserts in favor of declaratory judgment that the parties’ logos are dissimilar and the parties provide different goods and services making consumer confusion unlikely.

November 2, 2020

Seventh Circuit Confirms Presumptive Fees in Copyright Litigation are Not Guaranteed

By Overhauser Law Offices, LLC

Seventh Circuit Court of Appeals – The U.S. Court of Appeals for the Seventh Circuit affirmed the denial of fees for the Defendant, David Knott (“Knott”), after Plaintiff, Timothy B. O’Brien LLC (“Apple Wellness”), voluntarily dismissed all its claims with prejudice.

Originally filed in the Western District of Wisconsin, Apple Wellness alleged that Knott, a former employee of Apple Wellness started a similar, competing wellness shop. Apple Wellness sued Knott for alleged trademark, trade dress, and copyright infringement. Knott countersued for tortious interference and retaliation. The District Court found the copyright claims baseless and denied a preliminary injunction on the trademark and trade dress claims. Apple Wellness later voluntarily dismissed all its claims.

While Apple Wellness submitted a motion to dismiss without prejudice, the District Court ordered Apple Wellness to withdraw its motion or accept a dismissal with prejudice because Knott had already expended resources litigating an injunction. The District Court further noted that in its opinion, no party’s claim was strong. Apple agreed to the dismissal with prejudice and the District Court declined to exercise supplemental jurisdiction over the counterclaims. The District Court subsequently denied Knott’s motion for fees leading to this appeal only as to the fees for the copyright claims and the appeal.

The Court of Appeals found that while Apple Wellness’s copyright claims were frivolous, it appears the claims were brought in good faith. Therefore, “there were minimal concerns regarding compensation and deterrence.” Further, Knott did not have to expend a large amount of time, money, or energy defending against the copyright claims as they were quickly dismissed. After considering all of the factors, the Court of Appeals affirmed the judgment of the District Court denying Knott’s motion for fees.

October 27, 2020

Trademark Infringement Case Transferred to Northern District of Indiana

By Overhauser Law Offices, LLC

Hammond, Indiana – Modern Vascular LLC (“Modern Vascular”), the Plaintiff, originally filed suit against Defendants, Modern Vascular & Vein Center, Nazar Golewale and Jane Doe Golewale, in the U.S. District Court for the District of Arizona. In granting the Defendants’ Motion to Dismiss for lack of personal jurisdiction, the case was transferred to the Northern District of Indiana.

According to the Complaint, Modern Vascular has used its mark “MODERN VASCULAR” since 2017, which is registered under U.S. Trademark No. 5,570,334 (the “Registered Mark”). Modern Vascular claims the Defendants have advertised services, entered into agreements, and caused confusion with third parties using its Registered Mark. Due to the alleged continued use of the Registered Mark by the Defendants after being informed of the alleged infringement, Modern Vascular is seeking damages for willful trademark infringement, federal unfair competition, and false designation of origin.

October 19, 2020

Tankless Water Heaters at Heart of Trademark Dispute

By Overhauser Law Offices, LLC

Northern District of Indiana –Apparently, EZ Tankless, Inc. (“EZ Tankless”), the Plaintiff, sells water heaters throughout the world. EZ Tankless also claims to own the trademark for EZ TANKLESS under U.S. Registration No. 5,502,206 (the “Registered Mark”), which has been used in connection with its tankless water heaters since July 2009. According to the Complaint, Noritz America Corporation (“Noritz”), the Defendant, “is one of the world’s largest manufacturers of gas-fired baths and hot water heaters.”

EZ Tankless claims Noritz adopted a confusingly similar mark to the Registered Mark and has been using that mark in connection with Noritz’s EZ Series tankless water heaters since April 2017. Per the Complaint, Noritz applied for and was granted registration for its trademark EZ SERIES under U.S. Registration No. 5,731,024 in connection, in relevant part, with tankless water heaters. Noritz was also apparently granted a trademark registration for EZTR under U.S. Registration No. 4,800,941 with a date of first use on October 31, 2014.

According to the Complaint, EZ Tankless contacted Noritz on multiple occasions through counsel to request Noritz cease use of the EZ related marks. However, Noritz apparently continued to use the marks. Therefore, EZ Tankless is seeking damages for trademark infringement pursuant to the Lanham Act, common law trademark infringement, and common law unfair competition. Additionally, EZ Tankless is seeking to cancel both the EZ SERIES and EZTR marks as it contends they were granted registration based on false representations.

October 8, 2020

Indiana-Based Paul’s Marine, Inc. Sued for Alleged Trademark Infringement

By Overhauser Law Offices, LLC

South Bend, Indiana – Float-On Corporation (“Float-On”), the Plaintiff, claims to sell unique, high quality immersible boat trailers throughout the United States and in several other countries. According to the Complaint, Float-On has used the registered and incontestable mark FLOAT-ON® (the “Registered Mark”), covered by U.S. Reg. No. 885,333, to identify its boat trailers for over fifty years. Float-On further claims it has expended large amounts of money in advertising its products bearing the Registered Mark.Per the Complaint, Paul’s Marine, Inc. d/b/a PMI Marine Distributors and Paul E. Myers, Jr., the Defendants, copied the Registered Mark and have adopted a confusingly similar mark for boat trailers – FLOTE-ON. Float-On claims the Defendants intentional and willful selling of their products with the alleged infringing mark has caused actual consumer confusion in the marketplace. Float-On is seeking damages for federal trademark infringement, unfair competition, false designation of origin, and counterfeiting pursuant to the Lanham Act among several common law claims.

October 7, 2020

Great Grizzly Sues Winco Fireworks for Alleged Trademark Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Great Grizzly, Inc. (“Grizzly”), Plaintiff, claims to have sold and imported fireworks in Indiana for over 50 years. In addition, Grizzly claims to have several federal trademarks including the one at issue in this case assigned Registration No. 2,329,220 for “PREDATOR” (the “Registered Mark”).

Grizzly alleges the Defendants, Winco Fireworks, Inc. and Winco Fireworks International, LLC (the “Winco Defendants”) offer and sell fireworks throughout the United States. According to the Complaint, the Winco Defendants have sold fireworks that infringe the Registered Mark and have failed to desist their infringement after being informed of the Registered Mark. Therefore, Grizzly is seeking damages for trademark infringement, trademark dilution, false designation of origin, and unfair competition under the Lanham Act, 15 U.S.C. §§ 1051, et seq. and state common law. Grizzly is also claiming the Winco Defendants violated Indiana Code § 24-5-0.5-3(b)(1) for deceptive consumer practices and committed tortious interference with a business relationship under the common law.