Unfair Competition

July 2, 2021

Indianapolis-based Supermercado Sued for Alleged Trademark Infringement

Indianapolis, Indiana – Apparently, La Michoacana Meat Market TM Holdings, LLC (“La Michoacana”), the Plaintiff owns a number of federal trademark registrations for use in connection with its Mexican-styled grocery stores, meat markets, fruit shops, restaurants, and bakeries (the “LA MICHOACANA Marks”).

According to the Complaint, Defendants, Josue Lopez and Supermercado Jireh LLC, own and operate at least one Mexican-themed grocery store using the name “Super Mercado Jireh Pollo Michoacano. La Michoacana claims that Defendants’ use of “MICHOACANO” in connection with food-related goods and services is confusingly similar to the LA MICHOACANA Marks and therefore constitutes infringement of those marks.

La Michoacana is seeking damages for federal trademark infringement pursuant to 15 U.S.C. § 1117(a). It is further claiming damages for false designation of origin and unfair competition under 15 U.S.C. 1125(a). As La Michoacana claims it has suffered irreparable injury for which it has no adequate remedy at law, it is seeking a permanent injunction pursuant to 15 U.S.C. § 1116(a). Finally, La Michoacana is seeking damages for common law unfair competition and unjust enrichment.

February 25, 2021

Rylie Investments LLC Sued for Alleged Trademark Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Apparently, Armored Heating and Cooling Inc. (“AHC”), the Plaintiff, “is a leading provider of residential and commercial HVAC repair, service, sales and installations in central Indiana.” AHC claims the Defendant, Rylie Investments LLC (“Rylie”) also provides HVAC services in Indiana under the name “Armor Air.”

AHC claims to own U.S. Trademark Application Serial No. 90/058,569, U.S. Trademark Application Serial No. 90/084,330 and Indiana Trademark Registration ID 2020000026067 (the “AHC Trademarks”). According to the Complaint, Rylie filed a federal trademark application for the mark “ARMOR AIR” on July 20, 2020 under Application Serial No. 90/061,501. AHC further claims Rylie advertises its HVAC services despite not being a licensed HVAC contractor in Indianapolis, Indiana. Finally, AHC claims customers have been confused between the two companies and customers have complained that Rylie’s services are inferior and of poor quality.

AHC claims Rylie is liable for trademark infringement of the AHC Trademarks, false designation of origin, and unfair competition under the Lanham Act, 15 U.S.C. § 1125(a), and the common law. AHC is further seeking an injunction for trademark infringement pursuant to Ind. Code §§ 24-2-1-13 and 24-2-1-14.

February 19, 2021

WishBone Medical, Inc. Sued for Alleged Patent Infringement

By Overhauser Law Offices, LLC

Warsaw, Indiana – Apparently Orthopediatrics Corp. and Orthex, LLC (collectively “Ortho”), the Plaintiffs, own a patented method of fixing broken or deformed bones, United States Patent No. 10,258,377 (the “‘377 Patent”). Ortho claims Defendants, WishBone Medical, Inc. (“WishBone”) and Nick A. Deeter (“Deeter”), have infringed the ‘377 Patent. According to the Complaint, Deeter was an employee of Ortho from 2006 to 2013. Thereafter, Deeter apparently started WishBone in 2016.

Ortho claims WishBone’s “Smart Correction® External Fixation System” not only infringes the ’377 Patent, but that “WishBone admittedly knew of the ‘377 Patent by no later than June 2019, but proceeded to move forwarded [sic] with its infringing, copycat system.” Additionally, Ortho claims Deeter has breached his severance agreement in which he agreed not to disparage Ortho.

Ortho is seeking enhanced damages and attorneys’ fees for patent infringement pursuant to 35 U.S.C. §§ 284 and 285. Further, Ortho is seeking damages for unfair competition and false advertising under the Lanham Act. Finally, pursuant to Indiana common law, Ortho is suing Deeter for breach of contract, and both Defendants for defamation, tortious interference with contractual relationships, and tortious interference with prospective contractual relationships.

February 15, 2021

Makers of SPLENDA® Sue Speedway for Alleged Trade Dress Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Apparently Heartland Consumer Products LLC (“Heartland”), the Plaintiff, is the owner of the SPLENDA® brand sugar substitute sweetener, which comes in yellow packaging (the “Yellow Trade Dress”). According to the Complaint, Heartland has also used a variety of legally protected trademarks in connection with its SPLENDA® brand products.

In addition to its U.S. trademarks, and common law rights to the Yellow Trade Dress, Heartland also claims to have obtained trademark registrations for the SPLENDA® intellectual property in over 90 countries.

Heartland claims Speedway, LLC (“Speedway”), the Defendant, has “engaged in the active deception of customers through misappropriation of the Yellow Trade Dress in a manner that makes Speedway’s yellow sucralose packets easily mistakable for SPLENDA®’s yellow packets. Per the Complaint, Speedway failed “to provide sufficient cues to the consumer that the yellow sweetener packets in Speedway stores are not the leading brand sucralose-based sweetener sold by Heartland.” Therefore, Heartland claims Speedway’s actions are likely to deceive consumers into believing its sweetener provided in yellow packets is SPLENDA®.

Due to Speedway’s use of yellow packaging for sucralose, Heartland claims it has committed trade dress infringement, trademark dilution, false designation of origin, unfair competition, and false advertising pursuant to the Lanham Act, 15 U.S.C. § 1125. Heartland is seeking enhanced damages and attorneys’ fees under 15 U.S.C. § 1117 because it claims “Speedway’s actions are intentional, willful, and calculated to cause confusion, mistake or deception.” Further, Heartland is claiming common law trade dress infringement under Ind. Code § 24-2-1-15. Next, Heartland is claiming common law unfair competition. Finally, Heartland is claiming trademark dilution under Ind. Code § 24-2-1-13.5.

January 20, 2021

Fort Wayne Based Club Sued for Alleged False Endorsement

By Overhauser Law Offices, LLC

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.