Indiana Intellectual Property Law News

June 25, 2014

Indiana Trademark Law: Personal Jurisdiction Cannot be Based on Alter-Ego Theory

Indianapolis, Indiana – In the matter of American Petroleum Institute v. Bullseye Automotive Products, et al., Indiana trademark litigators Paul B. Overhauser and John M. Bradshaw of Overhauser Law Offices, attorneys for Carlos Silva, petitioned the court to dismiss Silva for lack of personal jurisdiction. District Judge Tanya Walton Pratt granted the motion to dismiss.

In July 2013, Indiana trademark attorneys for American Petroleum Institute (“API”) of Washington, D.C. sued in the Southern District of Indiana alleging that Bullseye Automotive Products Inc. and Bullseye Lubricants Inc., both of Chicago, Illinois (collectively, “Bullseye”), and Carlos Silva of Chicago Ridge, Illinois infringed registered API “Starburst” and “Donut” trademarks, Registration Nos. 1864428, 1868779, and 1872999.

The Bullseye entities are Illinois corporations that bottle and sell motor oil. Defendant Silva is the sole incorporator and shareholder of the Bullseye entities. Plaintiff API is a trade association for the petroleum and natural-gas industry.

API brought various claims against Bullseye and Silva as an individual, including trademark infringement and trademark dilution. It claimed that Bullseye’s labeling infringed on its “Starburst” and “Donut” certification marks. While Bullseye did not contest jurisdiction in Indiana, trademark lawyers for Silva asked the court to dismiss the claims against him for lack of personal jurisdiction.

API countered that the exercise of personal jurisdiction over Silva in Indiana was proper, contending that Silva personally directed the allegedly infringing activities, that he exercised complete control over Bullseye and that he and Bullseye were essentially the same entity for jurisdictional purposes. API made no argument that Silva personally had sufficient contacts with Indiana to permit an Indiana court to exercise personal jurisdiction.

The court rejected API’s “alter-ego” theory of personal jurisdiction, stating that this argument pertained to liability, not jurisdiction. Even if the court determined that Silva were the alter ego of Bullseye, a finding that the court explicitly declined to make, such potential for liability for corporate acts was held to be irrelevant to the question of personal jurisdiction. In so ruling, the court stated that it was refusing to disregard the corporate form and bypass the protections it offers, citing the longstanding rule that a “corporation exists separately from its shareholders, officers, directors and related corporations….”

The court then analyzed whether it would be appropriate to exercise personal jurisdiction over Silva based on his personal contacts with the state of Indiana. It concluded that Silva as an individual had not purposefully availed himself of the privilege of conducting activities within Indiana such that he would reasonably anticipate being haled into an Indiana court. Finding that the minimum contacts necessary had not been established, the court held that exercising personal jurisdiction over Silva would offend due process and the “traditional notions of fair play and substantial justice” and dismissed Silva from the lawsuit.

Practice Tip: Many of the arguments API made – for example, that Silva personally selected the text and design for Bullseye’s labels, that he personally negotiated with suppliers and that he oversaw production – do not support an “alter ego” theory. Activities such as these must necessarily be carried out by the sole shareholder of a small corporation. To find that a small corporation is the alter ego of a sole shareholder merely because that shareholder acts on behalf of the company would violate the basic principles of corporation law.

Paul B. Overhauser, Managing Partner of Overhauser Law Offices, also recently prevailed on the issue of personal jurisdiction in the Seventh Circuit in another lawsuit alleging trademark infringement.

June 23, 2014

Indiana Copyright Law: Three Default Judgments of $2,500 Ordered for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – In Bell v. Glacier International, District Judge Tanya Walton Pratt (pictured) of the Southern District of Indiana granted default judgments against three defendants, DiamondIndyLimo.com, Lon Dunn and Glacier International. In the three nearly identical opinions, the three defendants were each ordered to pay statutory damages of $2,500 for infringing a copyrighted photograph.

In January 2013, Indiana copyright attorney and professional photographer Richard N. Bell, acting as his own copyright lawyer, sued alleging copyright infringement under the Copyright Act and conversion under Indiana statutory law as a result of the allegedly unauthorized use of a photograph he had taken. This photograph had been registered with the United States Copyright Office.

In this lawsuit, Bell sued forty-eight Defendants: Jerry Gordon; Demand Media, Inc.; Bryce Welker; Royal Corniche Travel Ltd.; VRBO.com, Inc.; Experience Credit Unions, LLC; Jaclothing.com; Glacier International; ABNHotels.com; 1&1 Internet, Inc.; Conde Nast Digital; Flixter, Inc.; Financing-USA.com; SodaHead, Inc.; NuMedia Marketing, Inc.; Jynell Berkshire; Tzvetelin Petrov; Los Pentecostales del Area de la Bahia; 10Best, Inc.; Keyes Outdoor Advertising; Zoom Communications Inc.; Christine Nevogt; Zarzar, Inc.; Hydro-Gear; Tam T. Dang; Lon Dunn; William McLaws, Trustee; Natl-electronic Residential Payment History Recording Agency; CVI; Constant Contact, Inc.; Charles Lantz; Schumacher Cargo Logistics; Eventbrite, Inc.; Celebrity Entertainment Corp.; Association of Equipment Manufacturers; Yardi Systems Inc.; DiamondIndyLimo.com; Marcelo Santos; National Rural Recruitment & Retention Network; Anbritt Stengele; Pinnacle Sports Equipment, Inc.; Marygrove College; RunAnyCity.com; Buzzle.com, Inc.; Charles Onuska; University of Indianapolis; and PersephoneMagazine.com.

Bell alleged that each Defendant, independent of each other Defendant, “created a website to promote and advertise its own business” and placed Bell’s copyrighted photo on each of the Defendants’ respective websites. In addition to asserting copyright infringement, Bell also alleged criminal misconduct under Indiana statutory law. Bell requested an injunction and a declaratory judgment. He also asked the court for damages for copyright infringement under the Copyright Act as well as treble damages under an Indiana criminal statute prohibiting conversion.

In September 2013, the court entered default judgments against each of the three Defendants. Last week, the court issued three new opinions addressing the damages to be assessed against those Defendants.

The court first discussed the issue of damages for copyright infringement. Under 17 U.S.C. § 504(c)(1), statutory damages, in lieu of actual damages and profits, may be awarded “in a sum not less than $750 or more than $30,000” for each finding of infringement. A determination of willful copyright infringement permits the court in its discretion to increase the award of statutory damages up to $150,000 per infringement.

In determining the appropriate measure of statutory damages, the court considers factors including: (1) the infringer’s state of mind; (2) the expenses saved, and profits earned, by the infringer; (3) the revenue lost by the copyright holder; (4) the deterrent effect on the infringer and third parties; (5) the infringer’s cooperation in providing evidence concerning the value of the infringing material; and (6) the conduct and attitude of the parties.

The court declined to find the copyright infringement to be willful, in part because Bell requested statutory damages well under $30,000.00 per instance of infringement. Instead, the court found that $2,500 per Defendant was an appropriate measure of damages. An injunction was also granted, as it would serve the public interest by protecting copyrighted material and encouraging compliance with federal law. The injunction will be lifted upon payment of the award of statutory damages.

A claim of conversion under Indiana state law, and treble damages awarded pursuant to such a claim, was denied as preempted by the Copyright Act. Indiana code § 35-43-4-3(a) provides that a “person who knowingly or intentionally exerts unauthorized control over property of another person commits criminal conversion.” However, section 310 of the Copyright Act preempts “all legal or equitable rights that are the equivalent to any of the exclusive rights within the general scope of copyright” and that “no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.” The court held that the photograph in question was clearly under the scope of the Copyright Act and that Bell had not sufficiently alleged a right apart from the Act. Thus, no damages were available under Bell’s state law conversion claim.

Practice Tip:

Deciding to simply ignore a complaint, as these defendants apparently did, can be a costly error. Failing to present the defendants’ versions of the facts and arguments results in the court considering only the plaintiff’s side of the story. Here, because the defendants chose to leave the complaint unanswered, the well-pled allegations of the plaintiff relating to liability were taken as true.

After the entry of default judgment, the court then conducted an inquiry to ascertain the amount of damages. Again, in such circumstances, it serves a defendant well to plead his case – to present the court with reasons that the plaintiff should not get 100% of what he requests.

Under 17 U.S.C. § 504(c)(1), a copyright owner may elect actual or statutory damages. Statutory damages range from a sum of not less than $750 to not more than $30,000. The determination of the exact amount is left to the discretion of the court. In this case, Richard Bell asked the court for no less than $5,000. In some cases, courts in determining damages in cases of default judgment have granted the entire amount. In this case, the court took the additional step of considering the cost to purchase Plaintiff Bell’s picture – $200 – and incorporated that into its determination of the proper amount of damages to be awarded.

June 20, 2014

USPTO Launches Glossary Pilot to Promote Patent Claim Clarity

By Overhauser Law Offices, LLC

Washington, D.C. – The United States Patent and Trademark Office (“USPTO”) recently announced the launch of a new Glossary Pilot as part of a White House Executive Action designed to enhance claim clarity in the specification of software-related patent applications.

The pilot runs for six months from the start date of June 2, 2014.

Pilot participation requires an applicant to include a glossary section in the patent application specification to define terms used in the patent claim. Applications accepted into the pilot will receive expedited processing, be placed on an examiner’s special docket prior to the first office action and have special status up to the issuance of a first office action.

June 19, 2014

USPTO Cancels Redskins Trademark as “Disparaging” to Native Americans

By Overhauser Law Offices, LLC

Washington, D.C. – The opinion in Blackhorse v. Pro Football, Inc., TTAB Cancellation No. 92046185, resolved the petition of five Native Americans who filed for the cancellation of six “Redskins” trademarks with the U.S. Patent and Trademark Office (“USPTO”).

Yesterday, in a 177-page opinion, the Trademark Trial and Appeal Board (“TTAB” or “Board”) canceled six trademark registrations belonging to The Washington Redskins. All of the trademark registrations included the term “Redskins.”

Trademark attorneys for the petitioners argued that the term “Redskins” was disparaging of Native Americans. Under 15 U.S.C. § 1052, registration of a mark may be denied if that mark “Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”

June 18, 2014

Indiana Trademark Litigation: Liquid Palace Sues E Liquid Palace for Trademark Infringement

By Overhauser Law Offices, LLC

New Albany, Indiana – Trademark attorneys for Liquid Palace, LLC and Robert W. Kaiser, Jr., both of New Albany, Indiana, filed an intellectual property lawsuit alleging that E Liquid Palace, LLC and Austin Simon, both of Jeffersonville, Indiana, and Russell Simon of Louisville, Kentucky infringed registered trademarks “Genie” and “Liquid Genie“, serial numbers 86107913 and 86107799 by using the registered trademark “Electric Genie“, serial number 86194345. This Indiana trademark litigation, initially filed in Indiana state court, was removed to the Southern District of Indiana.

Liquid Palace manufactures, distributes and sells electronic cigarettes, also known as e-cigarettes, and related products through brick-and-mortar and e-commerce channels. Liquid Palace indicates that it began conducting business on or around March 21, 2013. It claims that, in the next few days, it registered the domain name “liquidpalace.com” and began using the trademark “Liquid Genie” along with an accompanying image of a genie. Liquid Palace submitted applications for trademarks to the U.S. Patent and Trademark Office (“USPTO”) for the “Genie” and “Liquid Genie” word marks, with an accompanying image, in November 2013.

E Liquid Palace, which does business as “Electric Genie,” engages in a similar business approximately 6 miles from Liquid Palace’s retail store. Defendant Austin Simon is asserted to be the sole member of E Liquid Palace. On April 4, 2013, two weeks after Plaintiffs’ claimed business-opening date, Defendants submitted articles of organization to the Indiana Secretary of State to form E Liquid Palace, LLC, while Defendant Russell Simon is listed as the owner of the “Electric Genie” trademark.

Liquid Palace contends that it owns rights to the marks “Genie”, “Liquid Genie” and “Electronic Genie”. It claims that Defendants are using those marks and/or marks that are substantially similar. Liquid Palace asserts that these actions violate its trademark rights.

In its complaint, filed by trademark attorneys for Plaintiffs, the following counts are alleged:

• Count I: Violations of 15 U.S.C. § 1051 et seq.
• Count II: Common Law Trademark Infringement
• Count III: Intentional Interference with Prospective Business Advantage and/or Intentional Interference with Business Relationships
• Count IV: Unfair Competition
• Count V: Injunctive Relief

Plaintiffs seek damages, including compensatory and punitive damages; statutory and/or liquidated damages under 15 U.S.C. § 1051; interest; injunctive relief and costs and attorneys’ fees.

Practice Tip:

Plaintiffs may have a difficult case to prove. They claim that at “the time the Defendants’ submitted articles of organization for [E Liquid Palace], the Defendants knew or should have known that the Plaintiff’s [sic] claimed a right to use ‘Liquid Palace’ in its business operations and that the intentional registration of ‘E Liquid Palace, LLC’ would confuse and/or mislead the consuming public.” However, Plaintiffs’ entity, Liquid Palace, LLC, is shown on the website of the Indiana Secretary of State to have been created in Kentucky on April 9, 2013, after the creation of E Liquid Palace, LLC.

Moreover, given that E Liquid Palace, LLC is the Defendants’ legal name, not the name under which they present themselves to the public, Liquid Palace is going to have a hard time showing confusion in the marketplace resulting from any similarities between the legal names of the entities.

It will also be interesting to see how the court handles any competing rights conferred by the registration of the marks at issue, given that both Plaintiff(s) and Defendant(s) have rights in federally registered marks.

Finally, the core infringement standard for trademark law is the “likelihood of confusion” test. This test imposes liability if a substantial number of consumers are likely to be confused by a defendant’s use of a trademark in which the plaintiff in the litigation has intellectual property rights. Given the exceedingly short period of time for which Plaintiffs here claim exclusive use of any mark in question, proving that consumers have come to identify Plaintiffs’ marks exclusively with their goods will be challenging.

June 16, 2014

Appeals Court Disallows Mass Joinder in Copyright Infringement Litigation

By Overhauser Law Offices, LLC

Washington, D.C. – The United States Court of Appeals for the District of Columbia handed copyright trolls a major defeat recently by removing one of their most powerful tactics: the ability to sue large groups of John Doe defendants together with minimal evidence.

The case, AF Holdings v. Does 1-1058, is one of the few mass copyright cases to reach an appellate court, and the first to look into fundamental procedural problems that have tilted the playing field firmly against the Doe Defendants. With this decision on the books, it appears likely that even more federal trial courts will disallow cookie-cutter lawsuits seeking cash payouts from dozens or even hundreds of Internet subscribers.

The appeal was brought by several internet service providers (Verizon, Comcast, AT&T and affiliates) with amicus support from copyright attorneys for the Electronic Frontier Foundation (“EFF”), the ACLU, the ACLU of the Nation’s Capital, Public Citizen, and Public Knowledge.

June 13, 2014

Indiana Intellectual Property Litigation: DirecTV Sues Alleging Illegal Satellite Signal Interception

By Overhauser Law Offices, LLC

Indianapolis, Indiana – An intellectual property lawyer for DirecTV, LLC of El Segundo, California has sued in the Southern District of Indiana alleging that Jeremy Jennings and Regal Enterprises, LLC d/b/a Ron-De-Voo Inn, all of Hagerstown, Indiana illegally utilized a satellite signal that had been licensed for residential service by displaying the satellite programming in a commercial establishment. DirecTV seeks declaratory and injunctive relief as well as damages for the improper receipt, transmission and exhibition of its satellite programming signals.

DirecTV distributes satellite programming throughout the United States. Through its operations, DirecTV provides this programming via specialized satellite-signal receiving equipment to subscribers who purchase a programming license by paying a subscription fee.

This intellectual property lawsuit was brought under the Cable Communications Policy Act of 1984, 47 U.S.C. §521, et seq., and 47 U.S.C. §605. The complaint alleges that Jennings, in his capacity as an owner and individual with close control over internal operating procedures of Regal Enterprises, LLC and Ron-De-Voo Inn willfully and unlawfully used a residential subscription to DirecTV in a commercial establishment. Jennings has been sued both individually and as an officer, director, shareholder, principal, manager and/or member of Regal Enterprises, LLC, which does business as Ron-De-Voo Inn.

The complaint, filed by an intellectual property attorney for DirecTV, cites three causes of action:

• Count One: Damages for Violations of Cable Communications Policy Act under 47 U.S.C. §605(e)(3)(c);
• Count Two: Damages for Violations of 18 U.S.C. §2511; and
• Count Three: Civil Conversion.

DirecTV asks for the following: a declaration that the defendants’ use of DirecTV was a violation of §2511 and §605, that such violations were willful and for the purpose of commercial advantage; an injunction against further violations; statutory damages under 18 U.S.C. §2511; statutory damages under 47 U.S.C. §605; punitive damages and costs, attorney’s fees and interest.

Practice Tip #1: DirecTV provides services to homes based on residential rates and to commercial establishments under commercial rates. Jennings and Regal Enterprises are accused of surreptitiously gaining access to DirecTV programming without proper authorization by subscribing to DirecTV services under a residential account and then installing/moving the equipment to the business establishment and utilizing the services, licensed at a residential rate, in a commercial environment.

Practice Tip #2: As part of its complaint, DirecTV claims that its goodwill and reputation have been usurped. It will be interesting to see what evidence it offers as proof that, as a result of allegedly receiving a lower monthly fee for the programming provided to the defendants – a circumstance, if true, presumably known to few other than Jennings – its goodwill or reputation have been impacted.

June 12, 2014

Indiana Intellectual Property Litigation: J & J Sports Sues Again Asserting Illegal Cable Signal Interception

By Overhauser Law Offices, LLC

Hammond, Indiana – An intellectual property attorney for J & J Sports Productions, Inc. (“J & J Sports”) of Campbell, California sued Sheila M. Kikalos individually and d/b/a Valla Del Sol a/k/a Villa Del Sol of Merrillville, Indiana in the Northern District of Indiana alleging the illegal interception and broadcast of Manny Pacqiao v. Timothy Bradley, WBO World Welterweight Championship Fight Program (the “Program”), which was telecast nationwide on June 9, 2012.

J & J Sports states that it is the exclusive domestic commercial distributor of the Program. It has sued Sheila M. Kikalos individually and d/b/a Villa Del Sol, under the Communications Act of 1934 and The Cable & Television Consumer Protection and Competition Act of 1992.

Specifically, Kikalos has been accused of violating 47 U.S.C. § 605 and 47 U.S.C. § 553 by displaying the Program without a commercial license on the day of its broadcast. Regarding the claim under 47 U.S.C. § 605, the complaint alleges that with “full knowledge that the Program was not to be intercepted, received, published, divulged, displayed, and/or exhibited by commercial entities unauthorized to do so, each and every one of the above named Defendants . . . did unlawfully intercept, receive, publish, divulge, display, and/or exhibit the Program” for the purpose of commercial advantage and/or private financial gain.

A count of conversion is also included in the complaint. It asserts that the alleged acts of interception and exhibition were “willful, malicious, egregious, and intentionally designed to harm Plaintiff J & J Sports” and that, as a result of being deprived of their commercial license fee, J & J Sports suffered “severe economic distress and great financial loss.”

As there appears to be no separate legal entity, the lone defendant is Kikalos, who has been named both individually and doing business as Villa Del Sol. As an individual, J & J Sports asserts that Kikalos is responsible for the alleged unlawful activity, contending that she had the right and ability to supervise the activities of the establishment. J & J Sports asserts that the activities that she supervised included the unlawful interception of Plaintiff’s program. J & J Sports contends that Kikalos specifically directed the employees of Villa Del Sol to unlawfully intercept and broadcast Plaintiff’s program at Villa Del Sol and Grill or, if she did not, that the actions of the employees of Villa Del Sol are directly imputable to Kikalos by virtue of her purported responsibility for the activities of the restaurant.

J & J Sports further asserts that Kikalos as an individual specifically identified on the liquor license for Villa Del Sol, had an obvious and direct financial interest in the activities of Villa Del Sol.

In the complaint, the intellectual property lawyer for J & J Sports listed the following counts and requests for redress:

• Count I: Violation of Title 47 U.S.C. § 605. For this count, J & J Sports requests (a) statutory damages for each willful violation in an amount to $100,000.00 pursuant to Title 47 U.S.C. 605(e)(3)(C)(ii), and (b) the recovery of full costs, including reasonable attorneys’ fees, pursuant to Title 47 U.S.C. § 605(e)(3)(B)(iii).
• Count II: Violation of Title 47 U.S.C. § 553. For this count, J & J Sports asks the court for (a) statutory damages for each violation in an amount to $10,000.00 pursuant to Title 47 U.S.C. § 553(c)(3)(A)(ii); (b) statutory damages for each willful violation in an amount to $50,000.00 pursuant to Title 47 U.S.C. § 553(c)(3)(B); (c) the recovery of full costs pursuant to Title 47 U.S.C. § 553 (c)(2)(C); and (d) and in the discretion of the court, reasonable attorneys’ fees, pursuant to Title 47 U.S.C. § 553 (c)(2)(C).
• Count III: Conversion. For this count, the court is requested to order both compensatory and punitive damages from Defendants as the result of the Defendants’ allegedly egregious conduct, theft, and conversion of the program and deliberate injury to J & J Sports.

Practice Tip #1: While on the surface this appears to be a copyright case, an allegation of interception under 47 U.S.C. § 605 is a different cause of action from copyright infringement. However, a suit alleging interception does not preclude an additional lawsuit alleging different causes of action. For example, the copyright holder can also sue for copyright infringement, which could increase damages by as much as $150,000.

Practice Tip #2: As part of its complaint, J & J Sports claims that the Kikalos’ actions have subjected them to “severe economic distress and great financial loss.” It will be interesting to see what evidence it offers as proof that, as a result of allegedly not receiving its full commercial fee for the programming purportedly displayed by the Kikalos – a circumstance, if true, presumably known to few other than the Kikalos herself – it has suffered severe economic distress and great financial loss.

June 11, 2014

Indiana Copyright Litigation: Malibu Media Sues Nine Additional “John Does” Asserting Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Nine copyright infringement lawsuits have been filed in the Southern District of Indiana on behalf of Malibu Media, LLC of Los Angeles, California. The lawsuits assert that nine separate unidentified defendants, each identified with only “John Doe” and an internet protocol address, infringed Malibu Media’s copyrighted works.

Frequent copyright litigator Paul Nicoletti has filed another set of copyright infringement complaints in Indiana federal court. The complaints, filed on behalf of adult-content purveyor Malibu Media, assert infringement of the company’s intellectual property. In this latest round, Malibu Media submitted nine new and nearly identical lawsuits for adjudication in the Southern District of Indiana against nine anonymous John Doe defendants. The defendants allegedly used the BitTorrent file-sharing protocol to illegally download, copy and distribute elements of various works of Malibu Media’s copyrighted material. As with all of Malibu Media’s complaints, the copyrights-in-suit cover pornographic videos.

Malibu Media seeks a permanent injunction barring the defendants from engaging in infringing activities; an order by the court that infringing materials be removed from all computers of each defendant; a separate award of statutory damages for each work found to have been infringed and reasonable attorneys’ fees and costs.

Practice Tip: Defendants who fail to appear run a significant risk of having a default judgment entered against them. There is a significant disparity in the dollar amount awarded in default judgments against defendants in copyright infringement cases involving BitTorrent. In two separate cases, Judge William T. Lawrence ordered defendants who failed to appear to pay $20,000 for the copyright infringement that was deemed to have been admitted by the defendants’ failure to defend against the allegations. See here and here. However, in a similar case, Judge Jane Magnus-Stinson ordered an entry of default judgment against a defendant for $151,425, the full amount requested.

Overhauser Law Offices, the publisher of this website, has represented several hundred persons and businesses regarding copyright infringement and similar matters.

June 9, 2014

J & J Sports Sues Yeakle’s Sports Bar and Grill Alleging Illegal Cable Signal Interception

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – An intellectual property attorney for J & J Sports Productions, Inc. of Campbell, California has sued in the Northern District of Indiana alleging that Wesley Yeakle individually and d/b/a Yeakle’s Sports Bar and Grill; and Yeakle’s Sports Bar and Grill, Inc. d/b/a Yeakles Sports Bar and Grill, both of Marion, Indiana, illegally intercepted and televised Manny Pacquiao v. Timothy Bradley WBO Welterweight Championship Fight Program (the “Program”), which was telecast nationwide on Saturday, June 9, 2012.

J & J Sports states that it is the exclusive domestic commercial distributor of the Program. It has sued Yeakle’s Sports Bar and Grill, Inc., as well as Wesley Yeakle as an individual, under the Communications Act of 1934 and The Cable & Television Consumer Protection and Competition Act of 1992.

Specifically, Defendants have been accused of violating 47 U.S.C. § 605 and 47 U.S.C. § 553 by displaying the Program without a commercial license on the day of its broadcast. Regarding the claim under 47 U.S.C. § 605, the complaint alleges that with “full knowledge that the Program was not to be intercepted, received, published, divulged, displayed, and/or exhibited by commercial entities unauthorized to do so, each and every one of the above named Defendants . . . did unlawfully intercept, receive, publish, divulge, display, and/or exhibit the Program” for the purpose of commercial advantage and/or private financial gain.

A count of conversion is also included in the complaint. It asserts that Defendants’ acts were “willful, malicious, egregious, and intentionally designed to harm Plaintiff J & J Sports” and that, as a result of being deprived of their commercial license fee, J & J Sports suffered “severe economic distress and great financial loss.”

In addition to naming the separate legal entity, Yeakle’s Sports Bar and Grill, Inc., which apparently owns the restaurant, Plaintiff has also sued Yeakle alleging that he had the right and ability to supervise the activities of the establishment. J & J Sports asserts that the activities that he supervised included the unlawful interception of Plaintiff’s program. J & J Sports contends that Yeakle specifically directed the employees of Yeakle’s Sports Bar and Grill to unlawfully intercept and broadcast Plaintiff’s program at Yeakle’s Sports Bar and Grill or, if he did not, that the actions of the employees of Yeakle’s Sports Bar and Grill are directly imputable to Yeakle by virtue of his purported responsibility for the activities of the restaurant.

Yeakle has also been named individually as a result of J & J Sports’ contention that he is a managing member of Yeakle’s Sports Bar and Grill, Inc. J & J Sports further asserts that Yeakle, as an individual specifically identified on the liquor license for Yeakle’s Sports Bar and Grill, had an obvious and direct financial interest in the activities of Yeakle’s Sports Bar and Grill.

In the complaint, the intellectual property lawyer for J & J Sports listed the following counts and requests for redress:

• Count I: Violation of Title 47 U.S.C. § 605. For this count, J & J Sports requests (a) statutory damages for each willful violation in an amount to $100,000.00 pursuant to Title 47 U.S.C. 605(e)(3)(C)(ii), and (b) the recovery of full costs, including reasonable attorneys’ fees, pursuant to Title 47 U.S.C. § 605(e)(3)(B)(iii).
• Count II: Violation of Title 47 U.S.C. § 553. For this count, J & J Sports asks the court for (a) statutory damages for each violation in an amount to $10,000.00 pursuant to Title 47 U.S.C. § 553(c)(3)(A)(ii); (b) statutory damages for each willful violation in an amount to $50,000.00 pursuant to Title 47 U.S.C. § 553(c)(3)(B); (c) the recovery of full costs pursuant to Title 47 U.S.C. § 553 (c)(2)(C); and (d) and in the discretion of the court, reasonable attorneys’ fees, pursuant to Title 47 U.S.C. § 553 (c)(2)(C).
• Count III: Conversion. For this count, the court is requested to order both compensatory and punitive damages from Defendants as the result of the Defendants’ allegedly egregious conduct, theft, and conversion of the program and deliberate injury to J & J Sports.

Practice Tip #1: A recent complaint filed by a different intellectual property attorney for J & J Sports deviated from the standard format of J & J Sports’ complaints. The standard format, as is demonstrated in this complaint, includes a count of conversion. It also asserts Counts I and II as additive. However, the other complaint omitted the count of conversion and listed Counts I and II in the alternative. It will be interesting to see whether the differences between these pleadings results in different rulings by the Northern District of Indiana.

Practice Tip #2: J & J Sports has sued two entities: a legal entity which appears to be incorporated and an individual who is apparently an owner of that company. While corporations are intended to limit the liability of the principals, they are not always successful in doing so. Where a principal is personally involved in certain types of illegal activity, legal mechanisms (such as a corporation or a limited liability company) that are designed to shield that individual from liability may fail to do so.

Practice Tip #3: J & J Sports is a frequent litigant. While the fight programs at issue in its intellectual property lawsuits vary, with few exceptions, the complaints are otherwise almost identical. As is sometimes also the case with others utilizing this template approach to drafting multiple similar complaints, this standardized method of litigation resulted in several errors in this complaint drafted for J & J Sports. For example, the date of the program over which this federal lawsuit was initiated is listed incorrectly at least four times (listed variously as “Saturday [sic], June 6, 2012,” “June 6, 2012″ and May 7, 2011.”)