Unfair Competition

November 2, 2016

Indiana Trademark Litigation: Maker of Gnarly Head Wine Alleges Infringement by Gnarly Grove Hard Cider

Indianapolis, Indiana – Plaintiff Delicato Vineyards of Manteca, California filed a lawsuit in the Southern District of Indiana alleging trademark infringement and other wrongdoing. Defendant is Gnarly Grove Cider Co. of Columbus, Indiana.

Plaintiff Delicato claims ownership to two trademarks, U.S. Trademark Registration No. 3165707 for GNARLY HEAD, and U.S. Trademark Registration No. 4777145 for a design trademark. It offers Gnarly Head wine products for sale using these trademarks.

Defendant Gnarly Grove recently launched Gnarly Grove hard cider. Plaintiff contends that both the name and the trade dress of this product are confusingly similar to its Gnarly Head wine. It asserts that the similarities appear to be an intentional effort on the part of Defendant to capitalize on the reputation of the GNARLY HEAD brand.

In this lawsuit, filed by Indiana trademark attorneys for Delicato, the following causes of action are alleged:

• Registered Trademark and Trade Dress Infringement -15 U.S.C. § 1114(1)
• False Designation of Origin -15 U.S.C. § 1125(a)

• Common Law Unfair Competition

Plaintiff is seeking equitable relief, damages, costs and attorneys’ fees.

October 26, 2016

Indiana Trademark Litigation: AAA Sues AAA Automotive Parts

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Trademark attorneys for Plaintiff The American Automobile Association, Inc. (“AAA”) filed a trademark lawsuit in the Southern District of Indiana. Two Bloomington Defendants are named, AAA Automotive Parts and the company’s owner. Defendants also do business as AAA Automotive & Truck Parts, and d/b/a AAA Automotive Parts.

AAA, a not-for-profit corporation, offers “travel and automobile products and services (including automobile repair services at its AAA Car Care Centers and through AAA Approved automobile repair businesses), financial advice, insurance and warranty coverage, and discounts.”

Defendants own and run a website, TRIPLEAPARTS.COM, on which they advertise automobile-related goods and services. Defendants also have brick-and-mortar shops in Indianapolis and Griffith, Indiana as well as locations in Missouri and Florida.

In this Indiana trademark lawsuit, lawyers for AAA listed the following causes of action:

• Count I: Federal Trademark Infringement in Violation of Section 32 of the Lanham Act
• Count II: Federal False Designation of Origin and Unfair Competition in Violation of Section 43(a) of the Lanham Act
• Count III: Federal Trademark Dilution in Violation of Section 43(c) of the Lanham Act
• Count IV: Cybersquatting Under Section 43(d) of the Lanham Act
• Count V: Trademark Dilution Under Ind. Code § 24-2-1-13.5
• Count VI: Trademark Infringement Under Ind. Code § 24-2-1-13

• Count VII: Unfair Competition and Trademark Infringement Under Common Law

AAA, which claims ownership to over 100 trademarks, contends that the following trademarks are at issue in this lawsuit:

Reg. No. 829,265	AAA Mark, used in connection with a variety of automobile association services and emergency roadside services
Reg. No. 2,158,654	AAA & Design Mark, used in connection with a variety of automobile association services and emergency roadside services
Reg. No. 3,316,227	AAA & Design Mark, used in connection with “[i]ndicating membership in a(n) automobile membership club”
Reg. No. 1,168,790	TRIPLE A Mark, used in connection with a variety of automobile association services
Reg. No. 3,046,904	AAA Mark, used in connection with repair services
Reg. No. 3,046,905	AAA & Design Mark, used in connection with repair services
Reg. No. 3,102,319	AAA & Design Mark, used in connection with vehicle parts
Reg. No. 5,036,379	AAA Mark & Design, used in connection with a variety of automobile association services and emergency roadside services
Reg. No. 1,449,079	AAA APPROVED AUTO REPAIR & Design Mark, used in connection with automobile repair services
Reg. No. 3,604,164	AAA TOTAL REPAIR CARE Mark, used in connection with auto diagnosis and repair services

AAA seeks damages and asks that those damages be trebled pursuant to 15 U.S.C. § 1117 and Indiana law. It also seeks equitable relief, costs and attorneys’ fees.

October 21, 2016

Indiana Intellectual Property Litigation: Defendant in California Patent Lawsuit Sues Plaintiff in Indiana Court Alleging Unfair Competition

By Overhauser Law Offices, LLC

South Bend, Indiana – Patent lawyers for Plaintiff Swagway, LLC of South Bend, Indiana sued Defendants Hangzhou Chic Intelligent Technology Co., Ltd. (“Chic”) of Hangzhou, People’s Republic of China, Jansco Marketing, Inc. of Pembroke, Massachusetts and COKeM International, Ltd. of Shakopee, Minnesota.

Swagway and Chic both sell self-balancing two-wheeled boards, also known as “hoverboards,” in the U.S. market. The two companies had an intellectual property dispute, with Chic alleging that Swagway infringed two of its patents. This dispute allegedly included letters sent by Chic that appeared to threaten Swagway’s business partners with litigation if they sold Swagway products that Chic alleged were infringing. Swagway also contends that Chic delayed Swagway’s goods by falsely alleging infringement to Chinese customs officials. It also states that Chic later issued a press release falsely stating that Swagway’s goods had been seized as infringing. When the dispute persisted, Chic sued Swagway in the Northern District of California on allegations that Swagway had infringed U.S. Patent No. 9,376,155 and U.S. Design Patent No. D737,723.

Swagway responded in part by filing a second federal lawsuit in the Northern District of Indiana. In its Indiana complaint, it accuses Chic and its agents, including Jansco and COKeM, of having made “numerous false and misleading statements” to Swagway’s retailers and customers regarding Swagway, its hoverboards, as well as the patent rights that Chic alleged in the California litigation. Plaintiff contends that “Defendants made these statements for the sole purpose of causing harm to Swagway’s business and preventing fair competition.” Swagway also contends that Chic withheld material information from the U.S. Patent and Trademark Office and that, consequently, the registration of several patents was improper.

In its Indiana lawsuit, patent attorneys for Plaintiff assert the following claims:

• Count I: Unfair Competition under the Lanham Act
• Count II: Unfair Competition under Indiana State Law
• Count III: Tortious Interference with Business Relationships

• Count IV: Defamation

Plaintiff has requested damages of no less than $30 million and also includes a prayer for punitive damages. Plaintiff further seeks equitable relief as well as reimbursement of costs and attorneys’ fees.

September 30, 2016

Indiana Copyright Litigation: Indianapolis Real Estate Agent Sued for Infringing Copyright of Photo

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Plaintiff Richard Bell of McCordsville, Indiana sued in the Southern District of Indiana alleging that Defendant Cindy Cherf of Carmel, Indiana committed copyright infringement.

Cherf, an Indiana real estate agent, is accused of publishing an unlicensed copy of Bell’s copyrighted “Indianapolis Nighttime Photo.” Bell, who is both a copyright attorney and a professional photographer, registered the photo in 2011 with the U.S. Copyright Office under Registration No. VA0001785115.

This lawsuit contends that the publication of the photo constitutes both copyright infringement and unfair competition. Bell also claims that Cherf disparaged him by falsely claiming that she owned the copyrights of all images on the website, including his photo.

Stating that the infringement was willful, Bell asks the federal court for the maximum statutory damages along with injunctive relief, costs and attorneys’ fees.

Practice Tip: Bell has filed numerous lawsuits in Indiana federal courts alleging copyright infringement. See:

• Limousine Service Sued for Copyright Infringement
• Bell’s Copyright Litigation Expands to Include IU, Purdue and Others
• Copyright Attorney Shifts to Alleging Infringement of Different Photo
• Attorney/Plaintiff Accuses Wisconsin Analytics Firm of Copyright Infringement
• Bell Names Aramark in Latest Copyright Infringement Lawsuit
• Attorney/Photographer Sues North Carolina Hotel Operator
• Attorney/Plaintiff Bell Files Three New Lawsuits Over Photo of Indianapolis Skyline
• Eight New Infringement Lawsuits Filed by Attorney/Plaintiff
• Attorney/Photographer Files Two New Infringement Lawsuits
• Lawsuit by Frequent Copyright Litigant Dismissed for Lack of Jurisdiction
• District Court Terminates Copyright Suit Over Photo; Plaintiff Appeals
• Remaining Copyright Defendants in Bell Lawsuit to be Dismissed
• Attorney/Photographer Sues Georgia Real Estate Company for Infringing Copyrighted Photo
• Sovereign Immunity May Take a Toll on Bell’s Latest Copyright Lawsuit
• Appellate Court Dismisses Copyright Appeal as Premature
• Bell Rings in the Holiday Weekend with a New Copyright Lawsuit
• Bell Files New Copyright Infringement Lawsuit
• Bell Sues Georgia-Based FindTicketsFast.com for Copyright Infringement
• Richard Bell Files Two New Copyright Infringement Lawsuits
• Court Prevents Copyright Plaintiff Bell from Outmaneuvering Legal System; Orders Bell to Pay Almost $34,000 in Fees and Costs
• Three Default Judgments of $2,500 Ordered for Copyright Infringement
• Court Orders Severance of Misjoined Copyright Infringement Complaint

• Richard Bell Files Another Copyright Infringement Lawsuit

September 26, 2016

Indiana Copyright Litigation: Limousine Service Sued for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Copyright attorney, professional photographer and frequent litigant Richard Bell of McCordsville, Indiana filed the latest in a string of Indiana lawsuits asserting copyright infringement.

This litigation, commenced in the Southern District of Indiana, alleges that Defendant A1 Luxury Limousine of South Florida, Inc. of Boynton Beach, Florida infringed Bell’s rights in a copyrighted photograph by using the photo on the company’s website without having purchased a license from Bell.

The photo, titled “Indianapolis Nighttime Photo,” has been registered with the U.S. Copyright Office under Registration No. VA0001785115. It was taken in 2000 and registered in 2011.

Bell lists claims of copyright infringement and unfair competition against A1. As with most or all of Bell’s other Indiana lawsuits claiming infringement of his “Indianapolis Nighttime Photo” or his “Indianapolis Photo,” this complaint further alleges that infringement is being willfully engaged in “with oppression, fraud, and malice.”

Bell asks the court for injunctive relief, statutory damages, costs and attorneys’ fees.

Practice Tip: We have blogged about Bell’s Indiana copyright litigation in previous posts. See:

• Bell Sues Shuttered Auto Repair Shop for Infringing Copyrighted Photo
• Copyright Attorney Shifts to Alleging Infringement of Different Photo
• Attorney/Plaintiff Accuses Wisconsin Analytics Firm of Copyright Infringement
• Bell Names Aramark in Latest Copyright Infringement Lawsuit
• Attorney/Photographer Sues North Carolina Hotel Operator
• Attorney/Plaintiff Bell Files Three New Lawsuits Over Photo of Indianapolis Skyline
• Eight New Infringement Lawsuits Filed by Attorney/Plaintiff
• Attorney/Photographer Files Two New Infringement Lawsuits
• Lawsuit by Frequent Copyright Litigant Dismissed for Lack of Jurisdiction
• District Court Terminates Copyright Suit Over Photo; Plaintiff Appeals
• Remaining Copyright Defendants in Bell Lawsuit to be Dismissed
• Attorney/Photographer Sues Georgia Real Estate Company for Infringing Copyrighted Photo
• Sovereign Immunity May Take a Toll on Bell’s Latest Copyright Lawsuit
• Appellate Court Dismisses Copyright Appeal as Premature
• Bell Rings in the Holiday Weekend with a New Copyright Lawsuit
• Bell Files New Copyright Infringement Lawsuit
• Bell Sues Georgia-Based FindTicketsFast.com for Copyright Infringement
• Richard Bell Files Two New Copyright Infringement Lawsuits
• Court Prevents Copyright Plaintiff Bell from Outmaneuvering Legal System; Orders Bell to Pay Almost $34,000 in Fees and Costs
• Three Default Judgments of $2,500 Ordered for Copyright Infringement
• Court Orders Severance of Misjoined Copyright Infringement Complaint

• Richard Bell Files Another Copyright Infringement Lawsuit

September 23, 2016

Indiana Copyright Litigation: Bell Sues Shuttered Auto Repair Shop for Infringing Copyrighted Photo

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Plaintiff Richard Bell of McCordsville, Indiana, a copyright lawyer and professional photographer, sued Defendant Hornberger Imports, Inc. of Beech Grove, Indiana in the Southern District of Indiana for copyright infringement.

As with most or all of Bell’s recent Indiana copyright litigation, this lawsuit pertains to works that have been registered with the U.S. Copyright Office under Reg. No. VA0001785115. This registration covers two photos, Bell’s “Indianapolis Photo” and his “Indianapolis Nighttime Photo.”

In this lawsuit, Bell contends that Defendant Hornberger infringed his copyright in the “Indianapolis Nighttime Photo” by publishing the photo on Hornberger’s website at www.hornbergerimports.com sometime in 2016 without having purchased a license to do so. Bell’s complaint states that Defendant “continue [sic] infringing conduct which has caused and is causing substantial and irreparable injury and damage to Plaintiff…and, unless, restrained, will cause further irreparable injury.” The complaint further contends that the alleged ongoing infringement is being willfully engaged in “with oppression, fraud, and malice.”

In addition to copyright infringement, a claim of unfair competition is included. Bell seeks injunctive relief along with statutory damages, costs and attorney fees.

Practice Tip #1: Hornberger Imports appears to have ceased operations in February 2015.

Practice Tip #2: Bell is a prolific copyright litigant. We have blogged about his copyright litigation in the past. See:

• Bell’s Copyright Litigation Expands to Include IU, Purdue and Others
• Copyright Attorney Shifts to Alleging Infringement of Different Photo
• Attorney/Plaintiff Accuses Wisconsin Analytics Firm of Copyright Infringement
• Bell Names Aramark in Latest Copyright Infringement Lawsuit
• Attorney/Photographer Sues North Carolina Hotel Operator
• Attorney/Plaintiff Bell Files Three New Lawsuits Over Photo of Indianapolis Skyline
• Eight New Infringement Lawsuits Filed by Attorney/Plaintiff
• Attorney/Photographer Files Two New Infringement Lawsuits
• Lawsuit by Frequent Copyright Litigant Dismissed for Lack of Jurisdiction
• District Court Terminates Copyright Suit Over Photo; Plaintiff Appeals
• Remaining Copyright Defendants in Bell Lawsuit to be Dismissed
• Attorney/Photographer Sues Georgia Real Estate Company for Infringing Copyrighted Photo
• Sovereign Immunity May Take a Toll on Bell’s Latest Copyright Lawsuit
• Appellate Court Dismisses Copyright Appeal as Premature
• Bell Rings in the Holiday Weekend with a New Copyright Lawsuit
• Bell Files New Copyright Infringement Lawsuit
• Bell Sues Georgia-Based FindTicketsFast.com for Copyright Infringement
• Richard Bell Files Two New Copyright Infringement Lawsuits
• Court Prevents Copyright Plaintiff Bell from Outmaneuvering Legal System; Orders Bell to Pay Almost $34,000 in Fees and Costs
• Three Default Judgments of $2,500 Ordered for Copyright Infringement
• Court Orders Severance of Misjoined Copyright Infringement Complaint

• Richard Bell Files Another Copyright Infringement Lawsuit

September 21, 2016

Indiana Trademark Litigation: Student-Housing Firms in Dispute over Use of “ANNEX”

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Plaintiff Mecca Companies Inc. d/b/a Annex Student Living of Indianapolis, Indiana filed a trademark infringement complaint in the Southern District of Indiana against Defendant Trinitas Ventures LLC of Lafayette, Indiana.

Mecca offers student-housing services in three states, including Indiana and Ohio, under THE ANNEX or ANNEX. It states that it began to use ANNEX to identify its student housing in 2013 but makes no mention of having received a federal or state trademark registration.

Mecca contends that Trinitas offers competing services in an Ohio student-housing property using the name ANNEX and asserts that this use is likely to cause consumer confusion. In this federal lawsuit, brought by Indiana trademark attorneys for Mecca, the following causes of action are listed:

• Count I: Trademark Infringement and Unfair Competition Under 15 U.S.C. § 1125(a)
• Count II: Violation of Ohio Deceptive Trade Practices Act, ORC 4165.02

• Count III: Common Law Unfair Competition under Ohio Law

Mecca seeks damages, including punitive damages, along with injunctive relief, costs and attorneys’ fees.

September 19, 2016

Indiana Copyright Litigation: Bell’s Copyright Litigation Expands to Include IU, Purdue and Others

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Copyright attorney and professional photographer Richard Bell of McCordsville, Indiana filed four new lawsuits in the Southern District of Indiana alleging copyright infringement.

Defendants in these four new cases are: Indiana University of Bloomington and Indianapolis, Indiana; Purdue University of West Lafayette, Indiana; David Powell and Midwest Regional Network for Intervention with Sex Offenders of Indianapolis, Indiana; and East Coast Health Insurance, Inc. of Deerfield Beach, Florida.

At issue in these four lawsuits are two photos, Bell’s “Indianapolis Photo” and his “Indianapolis Nighttime Photo,” which have been registered with the U.S. Copyright Office under Registration No. VA0001785115.

Bell contends that the two universities infringed the copyright of the “Indianapolis Photo,” while the remaining Defendants are accused of having infringed the “Indianapolis Nighttime Photo.”

Bell makes claims of “Copyright Infringement and Unfair Competition” and seeks statutory damages, injunctive relief, costs and attorneys’ fees.

Practice Tip: Bell is a frequent copyright litigant in Indiana. Our previous posts about his litigation include:

• Copyright Attorney Shifts to Alleging Infringement of Different Photo
• Attorney/Plaintiff Accuses Wisconsin Analytics Firm of Copyright Infringement
• Bell Names Aramark in Latest Copyright Infringement Lawsuit
• Attorney/Photographer Sues North Carolina Hotel Operator
• Attorney/Plaintiff Bell Files Three New Lawsuits Over Photo of Indianapolis Skyline
• Eight New Infringement Lawsuits Filed by Attorney/Plaintiff
• Attorney/Photographer Files Two New Infringement Lawsuits
• Lawsuit by Frequent Copyright Litigant Dismissed for Lack of Jurisdiction
• District Court Terminates Copyright Suit Over Photo; Plaintiff Appeals
• Remaining Copyright Defendants in Bell Lawsuit to be Dismissed
• Attorney/Photographer Sues Georgia Real Estate Company for Infringing Copyrighted Photo
• Sovereign Immunity May Take a Toll on Bell’s Latest Copyright Lawsuit
• Appellate Court Dismisses Copyright Appeal as Premature
• Bell Rings in the Holiday Weekend with a New Copyright Lawsuit
• Bell Files New Copyright Infringement Lawsuit
• Bell Sues Georgia-Based FindTicketsFast.com for Copyright Infringement
• Richard Bell Files Two New Copyright Infringement Lawsuits
• Court Prevents Copyright Plaintiff Bell from Outmaneuvering Legal System; Orders Bell to Pay Almost $34,000 in Fees and Costs
• Three Default Judgments of $2,500 Ordered for Copyright Infringement
• Court Orders Severance of Misjoined Copyright Infringement Complaint

• Richard Bell Files Another Copyright Infringement Lawsuit

September 16, 2016

Indiana Copyright Litigation: Copyright Attorney Shifts to Alleging Infringement of Different Photo

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Copyright attorney and Plaintiff Richard Bell of McCordsville, Indiana filed a new group of lawsuits in the Southern District of Indiana asserting infringement of a copyrighted photo.

The photo in question in these latest lawsuits, Bell’s “Indianapolis Nighttime Photo,” was registered on August 4, 2011 with the U.S. Copyright Office under Registration No. VA0001785115. In most of Bell’s prior litigation asserting infringement of his copyrighted photos (see “Practice Tip” below), only his “Indianapolis Photo,” taken during the daytime, has been at issue.

Three new Defendants are the subjects of these copyright lawsuits: Dave Tipton of Indianapolis, Indiana, Keith Buckley of Fishers, Indiana and A Place for Mom, Inc. of Everett, Washington. Bell contends that each Defendant “downloaded or took the Indianapolis Nighttime Photo from the internet without permission from the owner, Richard N. Bell and copied on to [sic] a webserver controlled by the Defendant” and, in so doing, committed copyright infringement.

Each of the lawsuits lists a count of “Copyright Infringement and Unfair Competition.” Bell seeks injunctive relief along with statutory damages, costs and attorneys’ fees.

Practice Tip: We have blogged about Bell’s copyright lawsuits numerous times in the past. See:

• Attorney/Plaintiff Accuses Wisconsin Analytics Firm of Copyright Infringement
• Bell Names Aramark in Latest Copyright Infringement Lawsuit
• Attorney/Photographer Sues North Carolina Hotel Operator
• Attorney/Plaintiff Bell Files Three New Lawsuits Over Photo of Indianapolis Skyline
• Eight New Infringement Lawsuits Filed by Attorney/Plaintiff
• Attorney/Photographer Files Two New Infringement Lawsuits
• Lawsuit by Frequent Copyright Litigant Dismissed for Lack of Jurisdiction
• District Court Terminates Copyright Suit Over Photo; Plaintiff Appeals
• Remaining Copyright Defendants in Bell Lawsuit to be Dismissed
• Attorney/Photographer Sues Georgia Real Estate Company for Infringing Copyrighted Photo
• Sovereign Immunity May Take a Toll on Bell’s Latest Copyright Lawsuit
• Appellate Court Dismisses Copyright Appeal as Premature
• Bell Rings in the Holiday Weekend with a New Copyright Lawsuit
• Bell Files New Copyright Infringement Lawsuit
• Bell Sues Georgia-Based FindTicketsFast.com for Copyright Infringement
• Richard Bell Files Two New Copyright Infringement Lawsuits
• Court Prevents Copyright Plaintiff Bell from Outmaneuvering Legal System; Orders Bell to Pay Almost $34,000 in Fees and Costs
• Three Default Judgments of $2,500 Ordered for Copyright Infringement
• Court Orders Severance of Misjoined Copyright Infringement Complaint

• Richard Bell Files Another Copyright Infringement Lawsuit

September 15, 2016

Indiana Trademark Litigation: Allison Transmission Alleges Infringement of TES 295 Trademarks

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Trademark attorneys for Plaintiff Allison Transmission, Inc. of Indianapolis, Indiana filed a lawsuit against Fleetpride, Inc. of Irving, Texas asserting trademark infringement.

Plaintiff Allison is a manufacturer of medium- and heavy-duty automatic transmissions. In conjunction with the manufacture and sale of transmissions, Allison developed a standard under which it would certify transmission fluids as approved for use in its transmissions. This standard, “TES 295,” is incorporated into a family of trademarks, Reg. No. 4,379,699, Reg. No. 4,166,531 and Reg. No. 4,993,880, which have been registered by the U.S. Patent and Trademark Office.

In 2015, Allison discovered what it alleges was an infringing use of the TES 295 trademark by Defendant Fleetpride. Allison contends that Fleetpride offered transmission oil under the name PRIMATECH TES295 and used a version of Allison’s TES 295 trademarks, both in its product numbers and its advertising. Trademark lawyers for Allison contacted Fleetpride to address Allison’s concerns, but no resolution was reached.

This litigation, filed in the Southern District of Indiana, followed. In the complaint, filed yesterday in federal court, Fleetpride is accused of “intentional, willful, and bad faith attempts to deceive or to create mistake or confusion in the minds of customers” as a result of its use of “TES295.” The lawsuit lists the following claims for relief:

• Count I: Infringement of Federally Registered Trademark (Lanham Act, 15 U.S.C. § 1114(1))
• Count II: Federal Unfair Competition and False Designation of Origin (Lanham Act, 15 U.S.C. § 1125(A))
• Count III: Common Law Unfair Competition and Trademark Infringement

• Count IV: False Description of Goods

Allison is seeking damages, including treble damages, along with injunctive relief, costs of the lawsuit and attorneys’ fees.