Unfair Competition

May 18, 2016

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

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 11, 2016

Indiana Copyright Litigation: Attorney/Photographer Files Two New Infringement Lawsuits

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Photographer Richard Bell of McCordsville, Indiana, who is also both the filing attorney and Plaintiff, filed two new lawsuits in the Southern District of Indiana alleging infringement of two of his copyrighted photos, “Indianapolis Night Photo” and “Indianapolis Photo.” Bell states in his complaint that both photos have been registered with the U.S. Copyright Office under Registration No. VA0001785115.

Defendant in the first lawsuit, TeamSoft, Inc. of Middleton, Wisconsin is accused of infringing Bell’s “Indianapolis Night Photo,” while Defendant in the second lawsuit, Michael Patrick of Indianapolis, Indiana, has been accused of infringing Bell’s “Indianapolis Photo.”

The two federal complaints, which are similar to each other as well as to the previous copyright infringement lawsuits filed by Bell, each list a single count: copyright infringement and unfair competition. Both Defendants are accused of “willfully and deliberately” engaging in copyright infringement “with oppression, fraud, and malice.”

Bell seeks injunctive relief along with statutory damages, costs and attorney’s fees.

Practice Tip: We have blogged in the past about Bell’s prolific litigation. See:

• 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

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 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.

April 6, 2016

Indiana Trademark and Copyright Litigation: Coach Sues Indiana Retailer on Allegations of Counterfeiting

By Overhauser Law Offices, LLC

South Bend, Indiana – Intellectual property attorneys for Plaintiffs Coach, Inc. of New York, New York and Coach Services, Inc. of Jacksonville, Florida (collectively, “Coach”) filed an intellectual property complaint in the Northern District of Indiana.

Coach contends that Defendants Zip Thru Mart, Charles Estok Sr., and Janice Estok, all of Knox, Indiana, infringed various Coach trademarks, which have been registered by the U.S. Patent and Trademark Office. In addition to trademark infringement under the Lanham Act, Coach asserts that Defendants have committed trade dress infringement, trademark dilution and counterfeiting under the Lanham Act, copyright infringement under the Copyright Act, as well as trademark infringement, unfair competition and unjust enrichment under Indiana common law.

Coach’s allegations stem from Defendants’ purported “designing, manufacturing, advertising, promoting, distributing, selling, and/or offering for sale” products that bear counterfeit Coach trademarks. Defendants are further accused of having engaged in this behavior “negligently and/or knowingly and intentionally, with reckless disregard or willful blindness to Coach’s rights, or with bad faith.”

In support of its allegations of infringement and related conduct, Coach states that it sent an investigator to the Zip Thru Mart. Its investigator saw multiple items bearing Coach trademarks, which Coach contends were counterfeit. Additional goods bearing purportedly counterfeit trademarks were seized by a Homeland Security Investigations officer during a subsequent visit to the business.

The intellectual property listed in this litigation includes numerous trademarks for “Coach,” “Coach New York,” “CC,” “Poppy” and similar trademarks. Coach also claims infringement of its copyrights, listing copyright registrations, registered with the U.S. Copyright Office, for its “Legacy Stripe” design (registration number VA000704542) “Signature C” design (registration number VA0001228917), “Op Art” design (registration number VA0001694574) and “Horse & Carriage” design (registration number VA0001714051).

In this Indiana lawsuit, filed by trademark and copyright attorneys for Coach, the intellectual property claims are listed as follows:

• Count I: Trademark Counterfeiting, 15 U.S.C. § 1114
• Count II: Trademark Infringement, 15 U.S.C. § 1114
• Count III: Trade Dress Infringement, 15 U.S.C. § 1125(a)
• Count IV: False Designation of Origin and False Advertising, 15 U.S.C. § 1125(a)
• Count V: Trademark Dilution, 15 U.S.C. § 1125(c)
• Count VI: Copyright Infringement, 17 U.S.C. § 501
• Count VII: Common Law Trademark Infringement
• Count VIII: Common Law Unfair Competition

• Count IX: Unjust Enrichment

In addition to statutory damages of $2 million per counterfeit mark, per type of counterfeit good, Coach seeks equitable relief; additional damages, both statutory and punitive; costs and attorneys’ fees.

Practice Tip: Coach has a history of requesting statutory damages that are considerably in excess of what has eventually been awarded by the courts. For example, in Coach, Inc. v. Paula’s Store Sportwear LLC, 2014 WL 347893 (D.N.J. Jan. 31, 2014), Coach requested $800,000 in statutory damages – $100,000 for each of eight counterfeited marks – from a shop from which four counterfeit Coach wallets and two counterfeit Coach handbags had been seized. When awarding damages to Coach, the court noted that the retail value of the six counterfeit items was less than $1500 and awarded $5000 for each of the eight marks that had been counterfeited, multiplied by the two types of goods, for a total statutory damages award of $80,000.

March 28, 2016

Indiana Trademark Litigation: Great American Bagel Sues Over Sign Modified to Read “Great American Eagle”

By Overhauser Law Offices, LLC

Evansville, Indiana – An Indiana trademark lawyer for Plaintiff The Great American Bagel Enterprises, Inc. (“GAB”) of Westmont, Illinois filed a trademark infringement complaint in the Southern District of Indiana against Defendants United HBA Corporation and Harbhajan Singh, d/b/a The Great American Eagle, both of Evansville, Indiana.

GAB owns, operates and franchises food-products stores known as The Great American Bagel. It owns a trademark for “The Great American Bagel,” Trademark Registration No. 2,015,665, which is comprised of the phrase “The Great American Bagel” with stars and bands. The mark has been registered by the U.S. Patent and Trademark Office.

Defendant United HBA operates a gas station and convenience store, which offers retail food products. Defendant Singh is listed as the President and sole principal of United HBA. GAB contends that United HBA is displaying a sign that had previously been used as signage for a The Great American Bagel store. GAB states that Defendants modified “Bagel” to read “Eagle” by removing the “B” and adding an “E” but that the sign is otherwise unaltered.

GAB alleges infringement of its trademark, stating that Defendants’ use of the modified sign has caused customers to confuse the food products offered by GAB with those offered by Defendants. In this federal lawsuit, filed by an Indiana trademark attorney, the following claims are made:

• Count I: Federal Trademark Infringement
• Count II: False Designation of Origin, False Advertising and Unfair Competition under the Lanham Act Section 43(A)
• Count III: Unfair Competition – Trade Name Infringement
• Count IV: Unfair Competition – Passing Off

• Count V: Unjust Enrichment

GAB seeks equitable relief, damages, including punitive damages; costs and attorney’s fees.

March 21, 2016

Indiana Trademark and Copyright Litigation: Sweetwater Contends Hello Music Copied its Website, Infringed its Intellectual Property

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – Indiana intellectual property lawyers for Plaintiff Sweetwater Sound, Inc. (“Sweetwater”) of Fort Wayne, Indiana filed an intellectual property lawsuit in the Northern District of Indiana.

Plaintiff alleges that Defendant Hello Music, LLC of Austin, Texas infringed its trademarks, which have registered by the U.S. Patent and Trademark Office as Trademark Nos. 3,652,255 and 3,652,249. In addition, Sweetwater Sound contends that Hello Music infringed its copyright, issued by the U.S. Copyright Office as TX 8-064-067, which protects the contents of its website. Other counts of alleged wrongdoing, including claims under Indiana law, have been asserted.

Hello Music is accused of duplicating copyrighted content from Sweetwater’s website and using that protected content on its own website. Sweetwater contends that part of the content purportedly copied includes the Sweetwater trademark. Sweetwater also asserts that these acts by Hello Music constitute a willful and deliberate attempt to trade on Sweetwater’s goodwill.

In the complaint, filed in federal court Friday, the following claims are made:

• Count I: Copyright Infringement
• Count II: Trademark Infringement (False Designation of Origin)
• Count III: Trademark Dilution

• Count IV: Unfair Competition

Sweetwater asks the court to grant equitable relief, including the destruction of infringing materials. It also seeks actual and treble damages, disgorgement of all profits that resulted from infringing acts, litigation costs and attorneys’ fees.