Unfair Competition

January 20, 2021

Fort Wayne Based Club Sued for Alleged False Endorsement

Fort Wayne, Indiana – Apparently, Amanda Cerny, Arianny Celeste Lopez, Abigail Ratchford, Alana Marie Souza, Tiffany Toth Gray, and Katarina Van Derham (collectively the “Plaintiffs”), are all professional models. Plaintiffs claim Defendants, B&B Operations, LLC, B&K Property Holdings LLC, and B&B Property Holdings, LLC, collectively doing business as Club 44 have used the Plaintiffs’ images to promote their strip club business. According to the Complaint, Club 44 has used the Plaintiffs’ images on its social media sites to advertise its business.

Plaintiffs claim that Club 44 used their images without consent, authorization, or payment. Further, even if Club 44 had offered to pay the Plaintiffs for the use of their images, Plaintiffs claim they would have refused to avoid harming their reputations and brands. According to the Complaint, by using Plaintiffs’ images on their social media accounts, “Defendants convey and reasonably suggest, falsely and fraudulently, that Plaintiffs endorse the Club, are affiliated with the Club, participated in the Club, sponsor the Club, or agreed to advertise for the Club.”

Plaintiffs are seeking damages for violations of the Lanham Act including false endorsement, unfair competition, and false advertising. Further, Plaintiffs claim their right of publicity pursuant to Ind. Code § 32-36-1-0.2 et seq., was violated. Finally, Plaintiffs assert Club 44 was unjustly enriched by the use of Plaintiffs’ images.

At last three of the Plaintiffs, Ratchford, Souza, and Toth Gray are involved in other similar suits that were recently filed in Indiana. Continue reading

January 13, 2021

Indiana Litigation: Showgirls I and III Sued for Alleged False Advertising

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – Apparently, the Plaintiffs in this case, Jessica Burciaga, Jessica Hinton, Jamie Eason Middleton, Lucy Pinder, Abigail Ratchford, Emily Scott, Denise Trlica, and Sara Underwood, are professional models. The Plaintiffs claim B&S Fort Wayne, Inc., Showgirl III, Inc. and Reba Enterprises LLC (collectively “Defendants”) doing business as Showgirl I and Showgirl III, have used their images and likeness to promote their strip clubs without permission of the Plaintiffs.

According to the Complaint, the Defendants’ use of the Plaintiffs’ pictures in connection with their strip clubs violates the Plaintiffs’ rights and violates the Lanham Act, 15 U.S.C. § 1125(a), for false endorsement, unfair competition, and/or false advertising. Further, the Plaintiffs allege the Defendants have violated their right of publicity pursuant to Ind. Code § 32-36-1-0.2 et seq. Finally, the Plaintiffs claim the Defendants have been unjustly enriched by promoting their businesses using the Plaintiffs’ images and likeness.

At least two of the Plaintiffs in this case, Hinton and Pinder, are involved in a similar lawsuit in the Southern District of Indiana.

January 11, 2021

The Trustees of Purdue University Sue for Alleged Trademark Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – The Trustees of Purdue University (“Purdue”), the Plaintiff, claims to own a number of registered and common law trademarks relating to Purdue University and its mascot (the “Trademarks”). According to the Complaint, Defendants, Vintage Brand, LLC and Sportswear Inc., sell Purdue-branded products utilizing the Trademarks without authorization or a license from Purdue. Purdue seeks declaratory judgment that Purdue owns and enjoys common law rights in the Trademarks and that Purdue’s rights are superior to the Defendants’ claim of any rights. Further, Purdue is seeking judgment against the Defendants for trademark infringement pursuant to 15 U.S.C. § 1114. Finally, Purdue is suing for common law passing off/unfair competition and trademark infringement.

Purdue University’s Registered Trademarks

January 4, 2021

Fantasy Gentlemen’s Club Sued for Alleged Lanham Act Violations

By Overhauser Law Offices, LLC

Hammond, Indiana – Cora Skinner and Tiffany Toth Gray, the Plaintiffs, claim to be professional models residing in California. According to the Complaint, a model’s reputation impacts the commercial value associated with their image or likeness to promote a product or service. Further, the Plaintiffs assert they each have “the right to control the commercial exploitation of their name, image, likeness, and advertising ideas.”

Apparently, Sahara, Inc. d/b/a Fantasy (the “Club”), the Defendant, operates a strip club in Hammond, Indiana. The Plaintiffs claim the Club used their images to promote its business without permission or compensation. As such, the Plaintiffs are seeking compensation for false endorsement, unfair competition, and false advertising pursuant to 15 U.S.C. § 1125.

Plaintiffs further claim the Defendant violated their right of publicity under Ind. Code § 32-36-1-0.2 et seq. Finally, Plaintiffs claim the Defendant was unjustly enriched by misappropriated the images of the Plaintiffs to promote the Club.

November 24, 2020

Dancers Showclub Sued in US Southern District for Alleged Violations of Right of Publicity

By Overhauser Law Offices, LLC

Indianapolis, Indiana – According to the Complaint, Plaintiffs, Jennifer Archuletta, Gemma Lee Farrell, Jesse Golden, Hillary Hepner, Jessa Hinton, Joanna Krupa, Gia McCool, Alana Campos Souza, Irina Voronina, and Lucy Pinder, are all professional models. Apparently, M E R Corporation d/b/a Dancers Showclub (“Showclub”), the Defendant, is a strip club located in Indianapolis, Indiana.

The Plaintiffs claim Showclub misappropriated the Plaintiffs’ photos, images, and likenesses in advertising materials to promote Showclub on social media without their consent or a license. By using the Plaintiffs’ photos, Plaintiffs claim Showclub falsely indicated the parties are associated and that the Plaintiffs endorse Showclub. Therefore, Plaintiffs are seeking damages for false endorsement, unfair competition, and/or false advertising in violation of the Lanham Act, 15 U.S.C. § 1125(a)(1), violations of the Plaintiffs’ right of publicity pursuant to I.C. § 32-36-1, et seq., and unjust enrichment.

November 18, 2020

Frost Buddy, LLC Sued for Alleged Trade Dress Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Apparently Brumate, LLC (“Brumate”), the Plaintiff, designs and sells insulated beverage containers, including an insulated tumbler/can holder, the HOPSULATOR®, and an insulated wine bottle, the WINESULATOR®. Brumate claims to have acquired trade dress rights in its HOPSULATOR® product design (“HOPSULATOR Trade Dress”). According to the Complaint, Frost Buddy, LLC (“Frost Buddy”), the Defendant, is selling a knockoff product that incorporates the HOPSULATOR Trade Dress. Brumate also claims Frost Buddy has engaged in deceptive advertising with regard to Brumate’s HOPSULATOR® and WINESULATOR® products.

Brumate is seeking damages for trade dress infringement, false advertising, and unfair competition pursuant to 15 U.S.C. § 1125(a). Further, Brumate claims Frost Buddy committed deception in violation of I.C. § 35-43-5-3 and unfair competition under Indiana common law.

October 19, 2020

Tankless Water Heaters at Heart of Trademark Dispute

By Overhauser Law Offices, LLC

Northern District of Indiana –Apparently, EZ Tankless, Inc. (“EZ Tankless”), the Plaintiff, sells water heaters throughout the world. EZ Tankless also claims to own the trademark for EZ TANKLESS under U.S. Registration No. 5,502,206 (the “Registered Mark”), which has been used in connection with its tankless water heaters since July 2009. According to the Complaint, Noritz America Corporation (“Noritz”), the Defendant, “is one of the world’s largest manufacturers of gas-fired baths and hot water heaters.”

EZ Tankless claims Noritz adopted a confusingly similar mark to the Registered Mark and has been using that mark in connection with Noritz’s EZ Series tankless water heaters since April 2017. Per the Complaint, Noritz applied for and was granted registration for its trademark EZ SERIES under U.S. Registration No. 5,731,024 in connection, in relevant part, with tankless water heaters. Noritz was also apparently granted a trademark registration for EZTR under U.S. Registration No. 4,800,941 with a date of first use on October 31, 2014.

According to the Complaint, EZ Tankless contacted Noritz on multiple occasions through counsel to request Noritz cease use of the EZ related marks. However, Noritz apparently continued to use the marks. Therefore, EZ Tankless is seeking damages for trademark infringement pursuant to the Lanham Act, common law trademark infringement, and common law unfair competition. Additionally, EZ Tankless is seeking to cancel both the EZ SERIES and EZTR marks as it contends they were granted registration based on false representations.

October 8, 2020

Indiana-Based Paul’s Marine, Inc. Sued for Alleged Trademark Infringement

By Overhauser Law Offices, LLC

South Bend, Indiana – Float-On Corporation (“Float-On”), the Plaintiff, claims to sell unique, high quality immersible boat trailers throughout the United States and in several other countries. According to the Complaint, Float-On has used the registered and incontestable mark FLOAT-ON® (the “Registered Mark”), covered by U.S. Reg. No. 885,333, to identify its boat trailers for over fifty years. Float-On further claims it has expended large amounts of money in advertising its products bearing the Registered Mark.Per the Complaint, Paul’s Marine, Inc. d/b/a PMI Marine Distributors and Paul E. Myers, Jr., the Defendants, copied the Registered Mark and have adopted a confusingly similar mark for boat trailers – FLOTE-ON. Float-On claims the Defendants intentional and willful selling of their products with the alleged infringing mark has caused actual consumer confusion in the marketplace. Float-On is seeking damages for federal trademark infringement, unfair competition, false designation of origin, and counterfeiting pursuant to the Lanham Act among several common law claims.

October 7, 2020

Great Grizzly Sues Winco Fireworks for Alleged Trademark Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Great Grizzly, Inc. (“Grizzly”), Plaintiff, claims to have sold and imported fireworks in Indiana for over 50 years. In addition, Grizzly claims to have several federal trademarks including the one at issue in this case assigned Registration No. 2,329,220 for “PREDATOR” (the “Registered Mark”).

Grizzly alleges the Defendants, Winco Fireworks, Inc. and Winco Fireworks International, LLC (the “Winco Defendants”) offer and sell fireworks throughout the United States. According to the Complaint, the Winco Defendants have sold fireworks that infringe the Registered Mark and have failed to desist their infringement after being informed of the Registered Mark. Therefore, Grizzly is seeking damages for trademark infringement, trademark dilution, false designation of origin, and unfair competition under the Lanham Act, 15 U.S.C. §§ 1051, et seq. and state common law. Grizzly is also claiming the Winco Defendants violated Indiana Code § 24-5-0.5-3(b)(1) for deceptive consumer practices and committed tortious interference with a business relationship under the common law.

September 9, 2020

3M Sues for Trademark Infringement Related to Alleged Price-Gouging Scheme

By Overhauser Law Offices, LLC

Indianapolis, Indiana –3M Company (“3M”) claims there has been an increase in wrongdoers seeking to exploit the COVID-19 pandemic by using scams including those to price-gouge and offer fake sales of 3M-brand N95 respirators. 3M claims Defendants, Zachary Puznak, Zenger LLC d/b/a ZeroAqua, and John Does 1-10 offered Indiana an opportunity to purchase 3M N95 masks at approximately $2.82 each, which is more than double 3M’s price.

There were numerous allegedly false communications from the Defendants to various representatives of the State of Indiana, including Indiana Governor Eric Holcomb’s Chief of Staff and the Senior Vice President and Chief of Staff of the Indiana Economic Development Corporation, regarding the sale of 3M-brand N95 respirators. When 3M became aware of the alleged price gouging and false communications, it filed this suit claiming the Defendants infringed its rights in United States Trademark Reg. No. 3,398,329 (the “‘329 Registration”) and Registration No. 2,793,534 (the “‘534 Registration”). 3M is further seeking damages for unfair competition, false endorsement, false association, false designation of origin, trademark dilution, and false advertising. Finally, 3M filed multiple claims pursuant to the Indiana Crime Victim’s Relief Act for deception, conversion, and theft.