Indiana Intellectual Property Law News
Terre Haute, IN – Trademark lawyers for Century 21 Real Estate LLC of Parsippany, New Jersey filed a trademark infringement suit in the Southern District of Indiana alleging Realty One Limited of Sullivan, Indiana and Steven Ault of Indiana infringed Century 21’s trademarks and service marks. Century 21 has numerous trademarks and services marks registered with the US Trademark Office
According to the complaint, Mr. Ault is the proprietor of Realty One, which is alleged to be doing business as Century Twenty-one Realty One in Sullivan, Indiana. The complaint states that beginning in 1984, Realty One began operating a Century 21 franchise in Sullivan, Indiana. The franchise agreement allowed Realty One to use the Century 21
trademarks and services marks and required Realty One to pay Century 21 a royalty and advertising fees as a percentage of the franchise’s gross sales. The agreement also allowed Century 21 to audit the records of Realty One. Mr. Ault personally guaranteed the franchise agreement. Century 21 terminated the franchise agreement effective July 2011, alleging that Realty One had breached the agreement by failing to pay amounts due to Century 21, failing to report and pay on closed transactions and failing to pay early termination fees. Pursuant the agreement, Realty One was to cease using Century 21 trademarks and services marks, however, it is alleged that Realty One continued to use them both in Sullivan, Indiana and in online marketing. It is also alleged that Realty One has created a new logo that is confusingly similar to Century 21’s trademark. Trademark attorneys for Century 21 have made claims of trademark infringement, false designation of origin/false advertising, trademark dilution, common law unfair competition, breach of contract, audit demand, and unjust enrichment. Century 21 seeks an injunction, damages, an accounting, attorney fees and costs.
Practice Tip: Normally a franchisee must immediately stop using and return all items with trade or services marks if the franchise agreement is terminated. Here, the franchise agreement appears to have lots of “teeth” to be used against a non-complying franchisee. The contract appears to allow Century 21 to collect liquidated damages as well as costs and attorney fees with an 18% interest rate on delinquent payments. The contract also required Mr. Ault to personally guarantee these obligations and to be personally liable for costs and attorney fees. Century 21 has been aggressive in defending its trademark rights. Trademark attorneys for Century 21 filed a similar suit earlier this year in the Northern District of Indiana.
This case has been assigned to Judge William T. Lawrence and Magistrate Judge Mark J. Dinsmore in the Southern District of Indiana, and assigned Case No. 2:11-cv-00269-WTL-MJD.Complaint
Further Information about the case is as follows
Filed: October 11, 2011 as 2:2011cv00269 Updated: October 18, 2011 06:04:32
Plaintiff: CENTURY 21 REAL ESTATE LLCDefendants: REALTY ONE LIMITED and STEVEN AULTPresiding Judge:William T. LawrenceReferring Judge:Mark J. DinsmoreCause Of Action: Trademark InfringementCourt:Seventh Circuit > Indiana > Southern District CourtType:Intellectual Property > Trademark