Unfair Competition

September 8, 2016

Indiana Copyright Litigation: Airbrushing Firm Sues Boat Seller for Copyright Infringement, Breach of Contract

South Bend, Indiana – Copyright lawyers for Plaintiff The Art of Design, Inc. of Elkhart, Indiana filed an intellectual property lawsuit in the Northern District of Indiana. Defendants in this Indiana lawsuit are Pontoon Boat, LLC d/b/a Bennington and Bennington Marine of Elkhart, Indiana and Hawkeye Boat Sales, Inc. of Dubuque, Iowa.

Plaintiff is in the business of custom airbrushing, including the airbrushing of copyrighted art works onto different surfaces. Defendants offer marine goods, including pontoon boats. In 2011, Plaintiff and Bennington entered into an agreement wherein Bennington paid Plaintiff to apply copyrighted graphics, titled “Shatter Graphics,” to a limited number of Bennington’s pontoon boats in exchange for payment.

Plaintiff contends that, following this authorized application of Shatter Graphics to Defendants’ pontoon boats, Defendant made further use of the copyrighted design without Plaintiff’s authorization.

In this Indiana litigation, Plaintiff makes several allegations, including accusing Defendant of copyright infringement for the sale of pontoon boats bearing graphics “that are copied from and substantially similar to” Plaintiff’s Shatter Graphics, which has been registered with the U.S. Copyright Office under Registration numbers VA 1-979-388 and 1-982-002. The lawsuit lists the following claims for relief:

• Count I – Breach of Contract against Bennington
• Count II – Unjust Enrichment against all Defendants
• Count III – Copyright Infringement against all Defendants
• Count IV – Unfair Competition against all Defendants
• Count V – Inducing Copyright Infringement against Bennington

• Count VI – Violations of DMCA, 17 U.S.C. § 1202

Plaintiff is seeking damages, including treble damages, as well as equitable relief, costs and attorneys’ fees.

Practice Tip: Plaintiff’s copyright attorneys also represent frequent litigant Design Basics. We have blogged about Design Basics’ Indiana copyright litigation before. See:

• Design Basics Sues Fort Wayne Homebuilders
• Creator of Architectural Designs Files Two New Copyright Lawsuits
• Design Basics Files Three New Indiana Copyright Lawsuits
• Architecture Firms File Four New Infringement Lawsuits
• Design Basics Files Two New Copyright Lawsuits
• Architecture Firm Files New Lawsuit Asserting Infringement
• Design Basics Files Two Additional Infringement Lawsuits in the Northern District
• Design Basics Files Additional Indiana Lawsuit

• Design Basics Sues Builders and Others Alleging Infringement of Copyrighted Architectural Designs

September 7, 2016

Indiana Copyright Litigation: Attorney/Plaintiff Accuses Wisconsin Analytics Firm of Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Serial litigant Richard N. Bell of McCordsville, Indiana filed a new lawsuit alleging copyright infringement in the Southern District of Indiana. This litigation names analytics firm Aurora Worldwide Development Corporation of Madison, Wisconsin as Defendant.

Aurora is accused of infringing Bell’s copyright in a photo titled “Indianapolis Photo,” which has been registered with the U.S. Copyright Office under Registration No. VA0001785115. Bell claims that Aurora published the copyrighted photo without proper authorization on its website, aurorawdc.com, as well as within a PDF file located on another website that Aurora controls.

In this lawsuit, Bell, an Indiana copyright lawyer and professional photographer, also contends that Defendant’s conduct disparaged him, stating that Aurora “willfully and recklessly falsely claimed that it client [sic] owned the copyrights of all images and photos contained on the website of aurorawdc.com including Indianapolis Photo and thereby disparaged the Plaintiff.”

Bell includes claims of “copyright infringement and unfair competition” in this lawsuit. He seeks injunctive relief along with statutory damages, costs and attorneys’ fees.

Practice Tip: Bell is a frequent copyright litigant in Indiana federal courts. Previous blog posts about his cases include:

• 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

August 30, 2016

Indiana Copyright Litigation: Bell Names Aramark in Latest Copyright Infringement Lawsuit

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Plaintiff Richard N. Bell of McCordsville, Indiana initiated the latest of a string of Indiana lawsuits alleging copyright infringement of his “Indianapolis Photo,” which has been registered with the U.S. Copyright Office under Registration No. VA0001785115.

This litigation, which was filed in the Southern District of Indiana, alleges that Defendant Aramark Corporation infringed Bell’s copyright by publishing his “Indianapolis Photo” on Aramark’s website.

In this intellectual property lawsuit, Bell, an Indiana copyright attorney and professional photographer, lists a single count – “Copyright Infringement and Unfair Competition.” Bell states that Defendant Aramark acted “recklessly, willfully” and in “conscious disregard” of his rights under copyright law. He seeks injunctive relief along with statutory damages, costs and attorneys’ fees.

Practice Tip: Bell has filed numerous lawsuits in recent years alleging infringement of his “Indianapolis Photo” as well as his “Indianapolis Nighttime Photo.” These lawsuits have been discussed on this blog before. See:

• 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

August 19, 2016

Indiana Trademark Litigation: Get 2 Go, Its Operators and Related Stores Sued for Infringement

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – Attorneys for Plaintiffs North Atlantic Operating Company, Inc. and National Tobacco Company, L.P., both of Louisville, Kentucky, filed a trademark infringement lawsuit in the Northern District of Indiana alleging infringement of various registered trademarks covering ZIG-ZAG® roll-your-own cigarette papers and accessories. In addition to trademark infringement under federal law, Plaintiffs allege copyright infringement, false designation of origin and trade dress infringement under federal law as well as trademark infringement and unfair competition under Indiana common law.

Multiple Defendants, most of Fort Wayne, Indiana, are named in this intellectual property lawsuit: KPC Distributor Inc.; Kuldeep Singh; Paramjit Singh; Charanjit Singh; Burger’s, Inc., d.b.a. Burger Dairy; JGM Stores Inc., d.b.a. Burger Dairy II; Kirandeep, Inc., d.b.a. Crescent Corner Express; KSL Stores Inc., d.b.a. Get 2 Go #10; KSL Holdings Inc., d.b.a. Get 2 Go #13; Coliseum Quick Mart Inc., a.k.a. Get 2 Go #15; Calhoun Store Inc., a.k.a. Get 2 Go 16; KPC Brothers Inc., a.k.a. Get 2 Go #17 d.b.a. Get 2 Go; Get 2 Go #18; Virk Brothers Enterprises Inc., a.k.a. Get 2 Go 19, d.b.a. Shell Get 2 Go #19; JAT Boyz Stores Inc., a.k.a Harlan Quick Stop; KPC Investments LLC, a.k.a. Iceway Express; John Does 1-10; and XYZ Companies 1-10.

At issue in this Indiana lawsuit are the following trademarks: Registration No. 610,530 for ZIG-ZAG (stylized), Registration No. 1,127,946 for ZIG-ZAG (text), Registration No. 2,169,540 for Smoking Man (design with circle border), Registration No.2,169,549 for Smoking Man (design with no border), Registration Nos. 2,664,694 and 2,664,695 for North Atlantic Operating Company, Inc. (design), and Registration Nos. 2,610,473 and 2,635,446 for North Atlantic Operating Company (text), all of which have been registered by the U.S. Patent and Trademark Office. The ZIG-ZAG trademarks are owned by a French company, Bolloré, S.A., which is not a party to this litigation, and are licensed to Plaintiff North Atlantic.

Defendants are accused of engaging in a widespread scheme to acquire, sell and/or distribute counterfeit products bearing various registered trademarks and/or copyrighted text that Plaintiffs allege is protected by law. This text includes the phrase “Distributed by North Atlantic Operating Company, Inc.”

Plaintiffs further contend that one or more Defendants’ conduct was willful. They contend that this was demonstrated on more than one occasion when a North Atlantic representative requested a receipt for the purchase of accused goods and this request was refused. On one occasion, when the representative insisted on a receipt, Plaintiffs state that “Defendant KPC Distributor ripped the receipt in two pieces, keeping the piece that displayed Defendant KPC Distributor’s contact information for itself.”

In this Indiana intellectual property lawsuit, filed by trademark litigators for Plaintiffs, Defendants are accused of having sold “dozens of cartons and hundreds of booklets of confirmed counterfeit ZIG-ZAG® Orange to undercover North Atlantic representatives.” Plaintiffs state the following claims:

• Federal Trademark Infringement (15 U.S.C. § 1114)
• False Designation of Origin and Trademark/Trade Dress Infringement (15 U.S.C. § 1225(a))
• Federal Copyright Infringement (17 U.S.C. §§ 101 et seq.)
• Common Law Unfair Competition

• Common Law Trademark Infringement

Plaintiffs ask the federal court for damages, injunctive relief, costs and attorneys’ fees.

August 16, 2016

Seventh Circuit – Trademark Law: Unauthorized Copying of Karaoke Tracks May be Piracy, but Not Trademark Infringement

By Overhauser Law Offices, LLC

Chicago, Illinois – The Seventh Circuit Court of Appeals ruled against Plaintiffs Slep-Tone Entertainment Corp. and its successor in interest Phoenix Entertainment Partners LLC (collectively, “Slep-Tone”) in a Lanham Act lawsuit asserting trademark infringement and trade dress infringement.

Trademark attorneys for serial litigant Slep-Tone have filed more than 150 lawsuits throughout the country under the Lanham Act alleging unauthorized copying and performance of Slep-Tone’s karaoke tracks. Slep-Tone contends that such activities constitute trademark infringement and trade dress infringement.

This federal litigation springs from a technology upgrade available to Slep-Tone customers. Earlier formats on which karaoke songs were offered included CD+G compact discs (with the +G referring to the graphic component) and MP3+G media. With the advent of large-capacity hard drives, some customers opted to transfer the files contained on their lawfully purchased CD+G or MP3+G to a hard drive, a practice known as “media shifting.” Because many compact discs can be stored on one hard drive, media shifting removed the need to swap between multiple discs to access different songs. This transfer was permitted by Slep-Tone as long as the customers notified Slep-Tone, agreed to certain terms that restricted multiple copies from being made and agreed to submit to an audit to certify compliance with Slep-Tone’s media-shifting policy.

In this lawsuit, filed against Defendants Basket Case Pub, Inc. of Peoria, Illinois and Dannette Rumsey, its president and owner, Slep-Tone alleged that Defendants violated the media-shifting policy. This, it asserted, resulted in an improper “passing off” of illegitimate “bootleg” copies of tracks as genuine Slep-Tone tracks.

Slep-Tone contended that when these unauthorized copies were played by Defendants, the pub’s customers would be confused, believing that “they are seeing and hearing a legitimate, authentic Slep-Tone track, when in fact they are seeing an unauthorized copy.” This conduct, it claims, is prohibited trademark and trade dress infringement.

A district court in the Central District of Illinois concluded that Slep-Tone had not plausibly alleged that Defendants’ conduct resulted in consumer confusion as to the source of any tangible good sold in the marketplace and dismissed Plaintiffs’ complaint.

The Seventh Circuit agreed. While the appellate court granted that Slep-Tone may have had a plausible complaint of copyright infringement for “theft, piracy, and violation of Slep-Tone’s [media-shifting] policy,” consumer confusion is the touchstone of trademark infringement and such confusion was not present. It stated:

What pub patrons see and hear is the intangible content of the karaoke tracks. They will see Slep-Tone’s trademark and trade dress and believe, rightly, that Slep-Tone is the source of that intangible content. But patrons will neither see nor care about the physical medium from which the karaoke tracks are played; consequently, any confusion is not about the source of the tangible good containing the karaoke tracks.

Because Slep-Tone’s assertions did not constitute trademark infringement or trade dress infringement, the Seventh Circuit affirmed the district court’s dismissal of the lawsuit.

July 29, 2016

Indiana Trademark Litigation: Lilly Sues Australian Seller of Gray-Market Veterinary Products

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Trademark attorneys for Eli Lilly and Company of Indianapolis, Indiana and Novartis Tiergesundheit AG of Basel, Switzerland filed a lawsuit in the Southern District of Indiana alleging trademark infringement and unfair competition.

Plaintiffs offer pet medications, such as flea-control and heartworm treatments, for sale in the U.S. and other countries worldwide. Among these medications are the following trademarked products, which have been registered by the U.S. Patent and Trademark Office:

ELANCO, registration number 710,473
COMFORTIS, registration number 3,370,168
INTERCEPTOR, registration number 2,015,850
CAPSTAR, registration number 2,510,863

TRIFEXIS, registration number 3,944,743

Plaintiffs allege that Defendants Scott Martin d/b/a Best Value Pet Supplies of Queensland, Australia and various unknown “Doe” Defendants infringed the trademarks at issue by selling in the U.S. trademarked products that were intended for sale in other countries via their website, www.bestvaluepetsupplies.com.

Plaintiffs contend that these products are materially different from products intended for sale in the U.S., citing differences such as different units of measure as well as non-U.S. addresses and telephone numbers listed on packaging as contact information.

In this Indiana trademark lawsuit, the following counts are alleged:

• Count I: Trademark Infringement in Violation of Section 32 of the Lanham Act
• Count II: Unfair Competition in Violation of Section 43(a) of the Lanham Act
• Count III: Unfair Competition in Violation of Indiana Common Law

Plaintiffs contend that Defendants’ conduct was willful and ask the court to order equitable relief, as well as the payment of compensatory and punitive damages, attorneys’ fees and costs of this litigation.

July 18, 2016

Indiana Trademark Litigation: Eye 4 Group Sues Over Use of Eyefourgroup.com

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Trademark attorneys for Eye 4 Group, LLC Corporation (“E4G”) of Fishers, Indiana filed an intellectual property lawsuit in the Southern District of Indiana. Defendants are Indianapolis Signworks, Inc. (“ISW”) of Indianapolis, Indiana and Andrew Chapman of Carmel, Indiana, the owner of ISW.

Plaintiff E4G is in the business of graphic design, sign manufacturing, metal fabrication, promotional material and apparel. It owns a registration for the trademark EYE 4 GROUP, Reg. No. 4,694,655, which has been issued by the U.S. Patent and Trademark Office. It has also an application for the registration of a second trademark for EYE 4, pending under Serial No. 87/018,205.

E4G states that Defendant ISW is a direct competitor in the business of making signs as well as associated tools and products. E4G, which owns and operates the website eye4group.com, contends that ISW has used the internet domain name “eyefourgroup.com” and, in doing so, has infringed E4G’s intellectual property. E4G asserts that Defendants’ actions constitute a knowing infringement of its trademark rights and that those actions were intentional, willful and in bad faith.

In this Indiana lawsuit, Plaintiff alleges direct and contributory trademark infringement, false designation of origin, and unfair competition arising under the Lanham Act; dilution under the Federal Trademark Dilution Act; violations of the Anticybersquatting Consumer Protection Act and related wrongdoing under Indiana state law.

Plaintiff seeks injunctive relief and monetary relief, including punitive damages, attorney fees and costs of the litigation.

June 23, 2016

Indiana Copyright Litigation: Attorney/Photographer Sues North Carolina Hotel Operator

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Plaintiff Richard Bell of McCordsville, Indiana sued Defendant Alliance Hospitality Management, LLC of Raleigh, North Carolina in the Southern District of Indiana alleging copyright infringement.

Bell, an Indiana copyright attorney and professional photographer, asserts that Defendant infringed his intellectual property rights in a photo of the Indianapolis skyline entitled “Indianapolis Photo,” which has been registered with the U.S. Copyright Office as Registration No. VA0001785115.

In this Indiana litigation, which Bell filed on his own behalf, a single count of “Copyright Infringement and Unfair Competition” is listed. Bell asks the court to award the maximum statutory damages allowable, asserting that Alliance Hospitality Management has infringed willfully and “with oppression, fraud, and malice.” Bell seeks injunctive relief, damages, costs and attorneys’ fees.

Practice Tip: Bell is a frequent litigant in Indiana federal courts and has been discussed here on numerous occasions. See:

• 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

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.