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December 20, 2017

Indiana Patent Litigation: Purdue Trustees Sue Japanese Corporation Over Blood Pressure Monitor Patent

Lafayette, Indiana – Attorneys for Plaintiff, The Trustees of Purdue University of Lafayette, Indiana filed suit in the Northern District of Indiana alleging that Defendants, Omron Corporation and Omron Healthcare Company, Limited of Japan infringed its rights in United States Patent No. 7,014,611 B1 (“the 611 Patent”) for “Oscillometric Noninvasive Blood Pressure Monitor”. Plaintiff is seeking judgment, compensatory damages, supplemental damages and interest, and such other and further relief and all remedies available at law.

The ‘611 patent describes a small blood pressure monitor to be worn around one’s wrist or other limb. The patented item includes the monitor and a pump to inflate the cuff, among other details. Plaintiff alleges that Defendants have been infringing the patent by offering for sale numerous infringing blood pressure monitors that Plaintiff alleges “embody the apparatuses and practice the methods covered by one or more claims of the ’611 patent.”

December 19, 2017

Indiana Copyright Litigation: Bell Finds Another Defendant To Sue Over Skyline Photo’s Copyright

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorney Richard Bell of McCordsville, Indiana filed suit in the Southern District of Indiana alleging that Defendant, River Pools & Spas Incorporated of Warsaw, Virginia, infringed its rights in the “Indianapolis Photo” registered on August 4, 2011 with the US Copyright Office, Registration No. VA0001785115. Bell seeks injunctive relief along with statutory damages, costs and attorney fees.

Bell has filed many lawsuits on his own behalf asserting copyright infringement in Indiana federal courts. See:

The Defendant in this case is River Pools & Spas Incorporated manufactures and installs pools and spas in residential homes. According to the complaint, the Defendant used the copyrighted photo on their business website, without permission or attribution. Plaintiff also claims that Defendant is vicariously liable for any profits realized by third parties through any third party’s downloading and use of the photo off of Defendant’s website.

December 11, 2017

Arizona-based Manufacturer Sues Indiana Corporation for Alleged Infringement of “Bulletproof” and Bulletproof Diesel” common law and registered Trademarks

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Neal Technologies, Inc. d/b/a Bullet Proof Diesel of Mesa, Arizona filed suit in the Southern District of Indiana alleging that Defendant, Superior Auto and Diesel Repair, Inc., of Shelbyville, Indiana infringed its rights in the following trademarks: U.S. Registration No. 4,235,578, U.S. Registration No. 4,262,825, U.S. Registration No. 5,130,772, U.S. Registration No. 5,220,129, U.S. Registration No. 5,220,128, and U.S. Registration No. 5,220,127.

Plaintiff company is an Arizona-based manufacturer of aftermarket parts for diesel engines, specifically Ford Power Stroke diesel engines. In 2009, the Plaintiff began selling an aftermarket part to improve the cooling system of a 6.0 liter Ford Power Stroke diesel engine, and marketed the part under various trade names such as “Bulletproof” and “Bulletproof Diesel.”

The Plaintiff has both common law and registered trademarks for various “Bulletproof” and “Bulletproof Diesel” marks. According to the complaint, the Defendant has marketed packages of aftermarket parts for the same type of Ford engine under the name “Bulletproof” and “Bulletproofing packages.” Plaintiff’s complaint alleges that Defendant uses theses marks to market aftermarket parts packages on their website, despite not having authorization from Plaintiff, and Defendant does not sell or install genuine Bullet Proof Diesel parts.

The complaint alleges federal trademark infringement under the Lanham Act, Unfair Competition under the Lanham Act, and Unfair Competition under Indiana common law. Plaintiff is seeking compensatory and treble damages, costs incurred, prejudgment interest, attorney’s fees and all other relief the court deems proper.

December 8, 2017

Southern District of Indiana Dismisses College Football Players’ Suit Against FanDuel and DraftKings

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiffs, Akeem Daniels, Cameron Stingily, and Nicholas Stoner, Inc., filed suit in the Southern District of Indiana alleging Defendants, FanDuel, Inc., and DraftKings, Inc. used the likeness of the three Plaintiffs and alleged a Right of Publicity claim.The decision was made by the district court granting the Defendants’ Motion to Dismiss the case.

The Defendants are fantasy sports websites that run collegiate fantasy football games, among other sports. The Plaintiffs were collegiate football players whose names appeared on the websites as players available for selection for a user’s fantasy team.

Plaintiffs filed suit claiming that Defendants violated their rights of publicity under Indiana’s Right of Publicity statute by using their name and likenesses on the websites without first obtaining permission. Defendants moved to dismiss for failure to state a claim. The Defendants put forward three main defenses: that certain statutory exemptions in the Indiana statute removed protection for the Plaintiffs, that First Amendment free speech allowed the use, and that federal copyright law preempted Plaintiff’s claims.

The Court ruled in favor of the Defendants’ motion to dismiss based on the statutory exemptions in the Indiana statute. The Court found that the Defendants’ use of Plaintiff’s names fell into the “newsworthy” and “public interest” exemptions to the state Right of Publicity statute. For the sake of thoroughness, the Court continued their analysis and rejected the other statutory exemptions put forward, as well as the First Amendment and federal preemption defenses.

December 7, 2017

Indiana Trademark Litigation: Purdue University Granted Injunction Against “Boilermaker Beer”

By Overhauser Law Offices, LLC

Tippecanoe County, Indiana – Attorneys for Plaintiff, The Trustees of Purdue University, filed suit in the Superior Court No.1 of Tippecanoe County, Indiana alleging that Defendant, Paul Parshall d/b/a Sports Beer Brewing Company, of Florida infringed its rights for use of the “Boilermakers Beer” and “Purdue Boilermakers Brewing” trademarks which were registered by the defendant. A Tippecanoe County Judge sided with Purdue University in an order dated November 9, 2017, and issued a Preliminary Injunction against the Defendant.

Defendant’s business is not a beer brewing company; rather, it is an Intellectual Property holding company whose portfolio consists of trademarks and service marks of various sports teams across the country. The company then works with breweries in different cities to provide beverages to customers with the chosen team’s logos, nicknames, and word marks on cups and other forms of packaging.

The Defendant has state trademark registrations in Indiana for the marks “Boilermakers Beer” and “Purdue Boilermakers Brewing.” Purdue University owns various registered federal trademarks for combinations of the words “Purdue,” “Boilermakers,” and “Boiler.”

December 6, 2017

Indiana Copyright Litigation: Richard Bell Sues Again On Copyright Claim Over Indianapolis Skyline Photo

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorney for Richard Bell of McCordsville, Indiana filed suit in the Southern District of Indian a alleging that Defendant, Keith Arnett infringed its rights in the “Indianapolis Photo” registered on August 4, 2011 with the US Copyright Office, Registration No. VA0001785115. Bell seeks injunctive relief along with statutory damages, costs and attorney fees.

Bell has filed many lawsuits on his own behalf asserting copyright infringement in Indiana federal courts. See:

This suit follows the same lines as the previous suits. Bell alleges copyright infringement and violations of the Lanham Act, stemming from the Defendant’s alleged unauthorized use of the copyrighted photo of the Indianapolis skyline. Plaintiff claims that Defendant used the photo on Defendant’s business website to help draw visitors to the website.

Plaintiff also alleges that Defendant falsely claimed that Defendant owned all copyrights for all photos appearing on the website. Bell even goes so far to allege that, by making the photo available for download on his website by third parties, Defendant is vicariously liable for any and all profits derived by third party users who downloaded the photo.

December 5, 2017

Court Of Appeals For Federal Circuit Denies Eli Lilly’s Appeal, Opens Door for Testosterone Generics

By Overhauser Law Offices, LLC

The Plaintiffs, Eli Lilly and Company, Eli Lilly Export S.A., and Acrux DDS Pty Ltd. had filed a patent infringement lawsuit in the Southern District of Indiana alleging that Defendants, Perrigo Company, Perrigo Israel Pharmaceuticals Ltd., Actavis Laboratories UT, Inc., FKA Watson Laboratories Inc., Lupin Pharmaceuticals, Inc., and Lupin LTD infringed patent no. 8,435,944, Method and Composition for Transdermal Drug Delivery (the ‘944 patent) and 8,807,861, Spreading Implement, (the ‘861 patent), which have been issued by the US Patent Office.

The ‘944 patent “recites a transdermal delivery method of applying testosterone to the axilla of a patient.” The District Court ruled in favor of the Defendants and invalidated the ‘944 patent for obviousness based on prior art, and the Court of Appeals for the Federal Circuit affirmed this decision. The Federal Circuit cited a lack of merit in Lilly’s appeal and a misreading of the district court’s decision.

The District Court upheld the validity of Lilly’s ‘861 patent, for an applicator that administers testosterone to the body. The Federal Circuit affirmed this decision as well, denying Cross-Appellant Amneal Pharmaceuticals’ appeal. Amneal’s version of the applicator was found to infringe on the ‘861 patent, and the Federal Circuit agreed. Amneal claimed that prior art invalidated the ’861 patent, but the Federal Circuit denied that argument.

November 10, 2017

Indiana Patent Litigation: Thor Industries Sues The RV Factory Over RV Patents

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorney for Plaintiff, Thor Industries, Inc. of Elkhart, Indiana filed suit in the Northern District of Indiana alleging that Defendant, The RV Factory, LLC, also of Elkhart, Indiana infringed on the U.S. Patent Nos. 7,575,251, titled Travel Trailer Having Improved Turning Radius (the ‘251 patent), and 7,938,427, titled Recreational Vehicle Chassis (the ‘427 patent). Plaintiff is seeking judgment in favor of Thor Industries, Inc., damages, and all infringing products be recalled.

Plaintiff is the owner of the patents, which deal with the design and functionality of travel trailers. Specifically, the ‘251 patent deals with an RV chassis having certain types of angled front corners, as opposed to squared corners. The ‘427 patent covers a type of chassis with a curved or bowed front end, instead of a flat or straight front.

According to the complaint, Defendant has been manufacturing and selling RVs with chasses containing the patented design elements. Plaintiff alleges that Defendant’s RV model “Luxe Luxury Fifth Wheel” infringes on the ‘251 patent. Plaintiff also alleges that Defendant’s “Luxe Elite,” “Luxe Gold,” and “Weekend Warrior” models infringe the ‘427 patent by using a curved forward surface.

Plaintiff also claims that Defendant has induced and contributed to infringement by third parties who have bought and used the allegedly infringing RVs.

April 10, 2017

Indiana Trademark Litigation: IHOP and Applebee’s Sued on Allegations of Infringement of Splenda Trademarks

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Heartland Consumer Products LLC and TC Heartland LLC, of Carmel, Indiana filed suit in the Southern District of Indiana alleging trademark and trade dress infringement, dilution and unfair competition under the Lanham Act, the Indiana State Trademark Act, and the common law of the State of Indiana.

At issue are trademarks covering Splenda®-brand sweetener, which has been approved for use in over 80 countries and used in more than 4000 products globally. In this Indiana litigation, Heartland claims that some or all of the following trademarks have been infringed: 1544079, 3346910; 4172135, 4165028, 4301712, 4172136, 4165029,4122311, 4187229, 4202774, 4230392, 4238101, 4106164, 4664653, and 4744600. These trademarks have been registered with the U.S. Patent and Trademark Office. In addition, Heartland claims ownership of the following pending applications for United States Trademark Registration Serial Nos. 86865337, 87012521, and 87010504.

Defendants in the lawsuit are DineEquity, Inc., Applebee’s Franchisor LLC, Applebee’s Restaurants LLC, Applebee’s Services, Inc., International House of Pancakes, LLC f/k/a International House of Pancakes, Inc., IHOP Franchising LLC, IHOP Franchise Company, LLC and IHOP Franchisor LLC. Plaintiff asserts that all Defendants have a principal place of business in Glendale, California. They are accused of leading customers to believe that they offer Splenda-brand sweetener when they do not. Plaintiff contends that instead of American-made Splenda, the product offered to the customers is, in fact, “a lower-quality product of China.”

Indiana trademark attorneys for Heartland sued in federal court. They assert:

Count I: Common Law Trademark Infringement and Trademark Infringement under 15 U.S.C. § 1114(1)
Count II: False Designation of Origin under 15 U.S.C. § 1125(a)
Count III: Unfair Competition
Count IV: Trademark Dilution under 15 U.S.C. § 1125(c)
Count V: Trademark Dilution under I.C. 24-2-1-13.5
Count VII [sic]: Preliminary and Permanent Injunctive Relief
Count VIII: Corrective Advertising Damages

Plaintiff asks the court for injunctive relief, costs and attorneys’ fees. They also seek various types of damages, including actual, statutory, punitive and treble damages.

March 30, 2017

EFF Addresses Digital Rights Issues on the Horizon at the Supreme Court

By Overhauser Law Offices, LLC

The U.S. Supreme Court already has a list of digital civil liberties issues to consider in the near future; that list is likely to grow.

If confirmed, President Donald Trump’s nominee to fill the late Justice Antonin Scalia’s seat on the Supreme Court—Judge Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit—will be in a position to make crucial decisions protecting innovation and fair use. The Electronic Frontier Foundation has weighed in on several such issues that are, or may be, before the Court.

The Supreme Court has agreed to hear arguments in TC Heartland v. Kraft, a case centering on whether TC Heartland can have the infringement case against it considered in the company’s home state of Indiana instead of Delaware. EFF has supported TC Heartland, and a ruling in favor of reasonable venue limits could help tamp down on abusive patent lawsuits, which are often brought in the Eastern District of Texas despite any actual ties to that location because that court is perceived as being friendly to abusive suits.