Indiana Intellectual Property Law News

December 5, 2012

Indiana Court Grants Coach, Inc. Summary Judgment In Trademark and Copyright Infringement Case

South Bend, IN – Trademark attorneys for Coach, Inc. of Jacksonville, FL, filed a lawsuit in the Northern District of Indiana against Defendants Diva’s House of Style and its owner Elizabeth Bond of Elkhart, IN, alleging multiple violations of intellectual property laws under the Lanham Act, the Copyright Act, Indiana common law and Indiana statutory law.

Lawyers for Coach sought partial summary judgment as to liability on three of its counts under the Lanham Act: trademark infringement, unfair competition and counterfeiting for the sale of products labeled as “Coach” which had not been manufactured by Plaintiffs (i.e., “knock-offs”).

Defendant Bond, proceeding pro se, failed to respond to Plaintiffs’ motion for summary judgment, as she had earlier failed to respond to the Plaintiffs’ request for admissions. Defendant Diva’s House of Style also attempted to proceed pro se despite the court’s explicit warning that the company was not permitted to do so.

As a result of Defendant Bond’s earlier failure to respond, 19 separate facts were deemed by the court to have been admitted. The undisputed facts were sufficiently robust to support summary judgment on the issue of liability for each of the three counts in question. The remaining counts, as well as a determination of damages for those counts for which Defendants were liable, were not addressed. The court also held that Ms. Bond could be held personally liable for her store’s infringement as a result of her personal involvement in the misconduct.

Practice Tip: Pro se litigants should remember that failing to respond to a lawsuit – including failing to respond in a timely and procedurally appropriate manner – can have serious consequences. Moreover, when any business is operated through a corporation or LLC, the business owner is not allowed to represent the business. The business must hire a lawyer, preferably one experienced in litigation, to represent the business. Finally, while corporations are often used to shield owners of personal liability, that protection often does not apply to intellectual property infringement cases, such as those involving patents, trademarks or copyrights.

November 30, 2012

174 Trademark Registrations Issued to Indiana Companies in November, 2012

By Overhauser Law Offices, LLC

The US Trademark Office issued the following 174 trademark registrations to persons and businesses in Indiana in November, 2012, based on applications filed by Indiana Trademark Attorneys:

		Word Mark
1	4,249,809	MEGASTAT	VIEW
2	4,250,215	THE FIRST NAME IN ORTHOPAEDICS	VIEW
3	4,250,156	FLOOR’EM WITH YOUR LOGO	VIEW
4	4,250,119	CARBONIZER	VIEW
5	4,250,046	GEOSILOS	VIEW
6	4,249,932	RENTCO	VIEW
7	4,249,926	EVANSVILLE ICEMEN	VIEW
8	4,249,778	CARBON’S KITCHEN	VIEW
9	4,249,662	ZIP & SIP	VIEW
10	4,249,473	CARGOBUCKLE UP	VIEW

November 30, 2012

Indiana Patent Attorneys Obtain 118 Patents for Indiana Companies in November, 2012

By Overhauser Law Offices, LLC

Indiana patent attorneys obtained issuance of the following 118 patents from the US Patent Office to persons and businesses in Indiana in November, 2012:

November 13, 2012

Copyright Office Allows Electronic Registration of Groups of Related Serial Issues

By Overhauser Law Offices, LLC

Washington DC – The Copyright Office is adopting interim regulations that allow groups of related serial issues to be filed through the Office’s electronic registration system. This interim rule will also allow applicants for groups of related serials to mail physical deposit copies of the serial issues upon submitting an electronic application and payment, when electronic deposit copies do not exist. Regardless of the registration option chosen, applicants, whether located in Indiana or elsewhere, must still send two complimentary subscription copies of the serial promptly to the Library of Congress as a condition of eligibility unless directed otherwise by the Office. While filing electronically is not mandatory, the Copyright Office strongly urges applicants to use the electronic filing option since it is more efficient for both the user and the agency.

Practice Tip: When Congress enacted its major revision to the copyright law in 1976, the Register of Copyrights was granted discretion to provide for a single registration for a group of related works. 17 U.S.C. 408(c)(1). In 1991, final regulations became effective permitting group registration of certain serial publications. 55 FR 50556 (December 7,

1990). Under these regulations, issues of serials published at intervals of a week or longer within a three-month period during the same calendar year can be grouped and registered on a single application and for a single fee. The group registration privilege is contingent upon the prompt submission of two complimentary subscription copies of each issue to the Library of Congress. Additionally, several other conditions apply, e.g., the registered serials must be collective works by the same author and claimant and must be works made for hire. See 37 CFR202.3(b)(6). The option for group registration of related serials does not allow the applicant to claim contributions of component works that were not made for hire.

November 12, 2012

Three Rivers Alleges Trademark Infringement against Parker Compound Bows re: Tomahawk Bows Mark

By Overhauser Law Offices, LLC

Fort Wayne, IN – Three Rivers Archery Supply, Inc. of Ashley, Indiana, along with Dale and Sandra Karch, have filed a trademark infringement suit against Parker Compound Bows, Inc. of Virginia. The suit alleges infringement of the mark TOMAHAWK BOWS, Registration No. 3, 156,258 issued by the US Trademark Office. The plaintiff claims that Parker has been distributing crossbows using the name TOMAHAWK, which infringes their products and could be confusing to the public.”

Practice Tip: The complaint does not appear to allege sufficient facts that would give the court personal jurisdiction over the defendant Parker. It merely alleges, “On information and belief, Parker has been conducting continuous and systematic business by marketing and selling infringing bows and related materials and equipment within the State of Indiana and within the Northern District of Indiana.” It is also curious that the TOMAHAWK registration is owned by Dale and Sandra Karch individually, yet the complaint alleges that they do not sell bows – only Three Rivers Archery is alleged to sell bows.

November 9, 2012

Indiana Court Transfers Warsaw Orthopedic Patent Infringement Case to California

By Overhauser Law Offices, LLC

South Bend, IN. The Northern District of Indiana has granted Defendant, NuVasive, Inc.’s request to transfer the patent infringement suit filed by Plaintiff, Warsaw Orthopedic, Inc., to the Southern District of California for the convenience of the parties and witnesses, and in the interest of judicial economy.

Warsaw Orthopedic, Inc. owns the three patents at issue and has various license arrangements to make, import, and sell products under these patents. On August 17, 2012, Warsaw and its licensees brought suit in the Northern District of Indiana against NuVasive, Inc. alleging infringements of the three patents in the manufacture and sale of medical devices and procedures used in spinal surgery. NuVasive filed their motion for transfer on September 4, 2012, arguing that transfer to Southern District of California would be more convenient for the parties, witnesses and in the interest of justice because of the similarity to a pending patent infringement case. NuVasive is also a party to a case in California involving thirteen patents related to medical devices and procedures used in spinal surgery, which is being litigated in three phases. The first phase concluded on September 20, 2011 and phase two has begun the discovery process. Although venue is proper in both Indiana and California because NuVasive has the requisite minimum contacts to Indiana yet has established the business in California, the court ultimately determined that in the interest of justice and for the conveniences of the parties and witnesses, transfer of the instant case to California is proper. The court determined that a stronger relationship exists between the current events and the California case and that the California court is already familiar with the parties and related issues so no undue time would need to be expensed. Furthermore, evidence to Warsaw’s earlier willingness to consent to transfer in exchange for incorporation into phase two of the California case demonstrated the seemingly tenuous relationship to Indiana and carried significant weight in the court’s analysis. Also, the alleged infringement predominately occurred in California and more non-party witnesses are located in California, with none residing in Indiana. Therefore, NuVasive’s motion for transfer to the Southern District of California was granted.

Practice Tip: Pursuant to 28 U.S.C. § 1404 et seq., Granting transfer is solely within the discretion of the court and Federal district courts may transfer any civil action to any other district for convenience of parties and witnesses and in the interest of justice if venue is proper in both courts. Thus separate analysis of venue, convenience of witnesses and parties and interest of justice must be undertaken.

November 6, 2012

USPTO News – Trademark Manual of Examining Procedure (October 2012)

By Overhauser Law Offices, LLC

The USPTO has issued the Trademark Manual of Examining Procedure (October 2012), with an effective date of October 31, 2012. Please note that the current version of the TMEP is now identified by the month and year in which it is issued. This is a change from prior versions, which were identified using edition and revision numbers. Note also that the new online interface, which was made available for preview in September, is now the exclusive interface and search tool for the TMEP. A Highlights document that includes some of the changes set forth in the October 2012 TMEP is also available on the USPTO website.

The revised Trademark Manual of Examining Procedure can be found here.

October 31, 2012

Indiana Patent Attorneys Obtain 161 Patents for Indiana Companies in October, 2012

By Overhauser Law Offices, LLC

Indiana patent attorneys obtained issuance of the following 161 patents from the US Patent Office to persons and businesses in Indiana in October, 2012:

PAT. NO.	Title
8,301,651	Method and system for improving utilization of human searchers
8,301,470	Method and computer-readable medium for administering an insurance policy premium payment deferral plan
8,301,347	Control for managing actuator output pressure applied to a torque transmitting mechanism of a multi-speed transmission
8,301,325	System and method for autonomous vehicle localization
8,301,221	Apparatus and method for monitoring the position of an orthopaedic prosthesis

October 31, 2012

214 Trademark Registrations Issued to Indiana Companies in October, 2012

By Overhauser Law Offices, LLC

The US Trademark Office issued the following 214 trademark registrations to persons and businesses in Indiana in October, 2012, based on applications filed by Indiana Trademark Attorneys:

October 19, 2012

Patent Office Proposes New Rules for Patent Attorneys

By Overhauser Law Offices, LLC

Washington, DC. The US Patent Office has released a proposed new set of rules of professional responsibility, completely redrafted from the present professional responsibility rules. The proposed rules would cover patent lawyers in Indiana and elsewhere, and are based on the American Bar Association’s 1983 Model Rules. The Office also proposes to revise the existing procedural rules governing disciplinary investigations.

The current Rules have not been revised since 1985 and is also based on the previous ABA Model Rules. Since that time, the vast majority of State bars in the United States have adopted substantive disciplinary rules based on the newer ABA Model Rules of Professional Conduct.

According to the notice from the Office, the extensive changes are meant to bring standards of ethical practice before the Office into closer conformity with the Rules of Professional Conduct adopted by nearly all States and the District of Columbia, while addressing circumstances particular to practice before the Office.

	PAT. NO.
1	D671,641	Double ended hohmann retractor
2	D671,341	Lounge end
3	D671,333	Lounge corner unit
4	8,319,046	Inbred corn line SLM07
5	8,319,043	Cotton cultivar PHY 800 Pima
6	8,318,946	Process for the preparation of 2-substituted-5-(1-alkylthio)alkylpyridines
7	8,318,938	Trans-fused chromenoisoquinolines synthesis and methods for use
8	8,318,758	5-fluoro-2-oxopyrimidine-1(2H)-carboxylate derivatives
9	8,318,713	Potentiation of cancer chemotherapy by 7-(2, 5-dihydro-4-imidazo [1, 2-A] pyridine-3-yl-2,5-Dioxo-1H-pyrrol-3-yl)-9-fluoro-1,2,3,4 tetrahydro-2-(1-piperidinyl-carbonyl)-pyrrolo [3,2,1-jk] [1,4] benzodiazepine
10	8,318,184	MGLU2 agonists

		WORD MARK
1	4229493	EZ-HOOK TOWING & AUTOMOTIVE SERVICES	VIEW
2	4235435	GO NEW PLACES	VIEW
3	4234243	PLAN FORECAST AND MANAGE SUPPLY CHAIN LIFECYCLES MARKET CREATE DEMAND AND ACCESS SALES CHANNELS CUSTOMIZE CONFIGURE, PREPARE AND ENABLE DEVICES MOVE DELIVER DEVICES WHEN AND WHERE THEY NEED TO BE RECOVER MAXIMIZE VALUE FROM RECAPTURED DEVICES	VIEW
4	4234038	CHALLENGER	VIEW
5	4234024	PORK CHOMPS	VIEW
6	4234023	BIG TINE	VIEW
7	4235526	STUDFACTOR COMBAT GEAR	VIEW
8	4233900	NFHS	VIEW
9	4233894	A.M. REAL ESTATE	VIEW
10	4233738	CUPX	VIEW