Articles Posted in Unfair Competition

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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.

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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.

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Defendant Coop Fuels is alleged to have infringed these trademarks by using “coop” to market its competing products.

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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.

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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.

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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:

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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Indianapolis, Indiana – Plaintiff Oak Motors, Inc. of Anderson, Indiana (“Oak Indiana”) filed a trademark infringement complaint in the Southern District of Indiana alleging that Oak Motors, Inc. of San Mateo, California (“Oak California”) is infringing U.S. Trademark Registration No. 4,487,991, which was issued by the U.S. Patent and Trademark Office.

Plaintiff Oak Indiana, a used-car dealership, has three locations in Indianapolis as well as a location in Anderson, Indiana and another in Muncie, Indiana. It focuses on offering cars to “customers with credit challenges.” It has commenced trademark litigation against a California-based used-car dealership that offers primarily luxury-brand vehicles.

Plaintiff contends that, by using “Oak Motors” to promote its business, Oak California intended to cause, and has caused, initial interest confusion and actual confusion among consumers and potential consumers. Oak Indiana asserts that Oak California’s actions are an intentional attempt to trade off the goodwill of Oak Indiana.

In addition to Oak California’s use of “Oak Motors” as a business name, Oak Indiana also complains of Defendant’s use of three websites, http://oakmotorsusa.com/, http://oakmotorsinc.com/ and http://www.oakmotorsca.com/default.aspx, claiming that the use of those websites is calculated to create consumer confusion regarding whether the two companies are related.

In this federal lawsuit, filed by Indiana trademark lawyers for Oak Indiana, the following claims are asserted:

• Count I: False Designation of Origin and False Description – 15 U.S.C. §1125(a)
• Count II: Common Law Trademark Infringement
• Count III: Unfair Competition
• Count IV: Cybersquatting – 15 U.S.C. §1125(d)

• Count V: Declaratory Judgment

Oak Indiana seeks equitable relief, including the transfer of domain names referencing the “Oak Motors” trademark; Oak California’s profits from the sale of all infringing goods; damages, including actual damages, punitive damages, statutory damages and treble damages; costs of litigation and attorneys’ fees.

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Indianapolis, Indiana – Dean Graham, founder of now-defunct Help Indiana Vets, Inc. (“HIVI”), both of Acton, Indiana, was interviewed by Indianapolis television station Fox 59 regarding recent publicity about lavish spending of Wounded Warrior Project, which Graham and HIVI had first alleged in 2010. Indianapolis intellectual property attorney Paul Overhauser, publisher of this blog, was also interviewed.

History

Graham, a retired veteran, founded HIVI in 2010. HIVI operated with a few thousand dollars in outside donations and over $27,000 donated by Graham and his wife from their personal savings. Of those donations, 100% was spent directly on providing assistance to veterans in need.

To help raise awareness of the needs of injured veterans, as well as to ask for charitable donations, HIVI had operated a website. That website included statements criticizing how WWP of Jacksonville, Florida was run, including that WWP was “a fraud,” that it “needs to be investigated immediately” and that it “ha[s] an army of lawyers on staff to punish all those who try to expose [it].”

In response to these statements and others, WWP in November 2013 engaged lawyers from two law firms, Barnes & Thornburg LLP, one of the largest law firms in the United States, and Kutak Rock LLP,  a 500-plus attorney firm, to jointly sue HIVI and Graham on WWP’s behalf. The complaint asserted, inter alia, defamation and false advertising under the Lanham Act.

Attorney Overhauser, whose practice of law focuses on intellectual property litigation, volunteered to provide some assistance to Graham and HIVI in defending against WWP’s allegations. Nonetheless, by June 2014, concerned for the effects that the lawsuit was having on his family, Graham acceded to WWP’s demands. He shuttered his charity and its website.

Recent Attention in the Media

Following a story first broken in January by the New York Times, titled “Wounded Warrior Project Spends Lavishly on Itself, Insiders Say,” the national media have recently covered WWP extensively. Much of the attention has been focused on WWP’s “aggressive styles of fund-raising, marketing and personnel management” as well as the millions of dollars in “lavish spending on luxury travel, fancy meals and swanky getaways that rivals the amount spent on its combat stress-recovery program.” According to Fox 59, research revealed that about 40 cents of each dollar donated went to lavish spending. After an independent review of the organization’s finances, WWP dismissed its Chief Executive Officer, Steve Nardizzi, and its Chief Operating Officer, Al Giordano.

In addition to the New York Times, the allegations against Wounded Warrior Project have been covered by many national media outlets, including:

• ABC: Wounded Warrior Project Like a ‘Frat Party,’ Former Employee Says
• CBS: Wounded Warrior Project accused of wasting donation money
• Fox News: Wounded Warrior Project’s top execs fired amid lavish spending scandal
• NBC: Wounded Warrior Project’ CEO, COO Fired Amid Lavish Spending Scandal
• New York Post: Wounded Warrior Project probed for lavish spending while vets suffer

• UPI (United Press International): Wounded Warrior Project founder, top executive fired after damning CBS report

This story was also covered on a local Indiana channel, Fox 59, in an interview featuring both Graham and Overhauser. “We knew about activities [like] large parties and expenses. It was even bigger than I imagined,” said Graham. “I hope that this really does clean up from top to bottom and [cause] some changes that will be positive for veterans.

“Dean Graham has been trying to get this information out into the public for years but he was squashed by this lawsuit and had to discontinue his efforts,” said Overhauser. “The truth has come out.”

A video of the interviews featured on Fox 59 can be viewed here: http://via.fox59.com/prxMt.

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South Bend, Indiana – Indiana trademark attorneys for Plaintiff UL LLC of Northbrook, Illinois filed a lawsuit with the federal court in the Northern District of Indiana. Plaintiff alleges that Swagway, LLC and Jianqing “Johnny” Zhu infringed the “UL” trademark, Trademark Registration Nos. 2391140 and 782589, which have been registered by the U.S. Patent and Trademark Office. Plaintiff further claims that Defendants use the Service Mark “UL” in a manner that falsely suggests a relationship between Plaintiff and Defendants. Other causes of action, including claims under the state law of Illinois, are also asserted.

Plaintiff UL, founded in 1894, is a developer of safety standards. It also offers safety testing, inspection and certification of products. Plaintiff states in this federal lawsuit that it owns a family of trademarks featuring the UL mark, including a “UL-in-a-circle” certification mark and the UL service mark.

This lawsuit pertains to hoverboards (also known as self-balancing scooters or skateboards). Plaintiff states that hoverboards have been the subject to inquiries regarding safety. It also contends that Defendants have been sued on allegations that their hoverboard caught on fire and caused property damage.

In this trademark action, Plaintiff complains of Defendants’ alleged improper use of the UL trademark and service mark on the hoverboards that Defendants make and sell. Additionally, Plaintiff contends that Defendants falsely stated that “Swagway also adheres to all required environmental standards and certifications,” including UL certification. According to Plaintiff, Defendants’ conduct was “intentional, unjustified and/or malicious, and done to purposefully harm Plaintiff.”

This Indiana litigation, filed with the court by trademark lawyers for Plaintiff, lists the following:

• Count I: Federal Trademark Counterfeiting and Trademark Infringement (15 U.S.C. § 1114)
• Count II: Federal Unfair Competition – False Designation of Origin (15 U.S.C. § 1125)
• Count III: Federal Unfair Competition – False Advertising (15 U.S.C. § 1125)
• Count IV: Violation of the Illinois Deceptive Trade Practices Act (815 ILCS 510/1 et seq.)

• Count V: Violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq.)

Plaintiff seeks equitable and other relief along with damages, including punitive damages, costs and attorney’s fees.

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Contact Information
Indiana Intellectual Property: IP Litigation, Patents, Trademarks, Copyrights
  • Seventh Circuit
  • Northern District of Indiana
  • Southern District of Indiana
Paul B. Overhauser
Overhauser Law Offices, LLC
Greenfield
18 E Main St #202
Greenfield, IN 46140
Phone: 317.467.9100
Fax: 866.283.8549
Indianapolis
101 W Ohio St #2000
Indianapolis, IN 46204
Phone: 317.891.1500
Fax: 866.283.8549

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