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Evansville; IN – Trademark attorneys for Cosmetic Warriors Limited of the United Kingdom filed a trademark infringement suit in the Southern District of Indiana alleging Lush Day Spa of Evansville, Indiana infringed trademark registration no. 3987808 for the mark LUSH which has been registered with the US Trademark Office.

Thumbnail image for Thumbnail image for untitled.jpgThe complaint states that Cosmetic Warriors operates a retail store in California and operates, www.lush.com, a website selling its bath, hair care, and beauty products, which are described as “made from natural, wholesome ingredients.” The complaint states that the Bartnicks operate an Evansville retail shop called Lush Day Spa. Cosmetic Warriors alleges it has been using the mark “Lush” since 1996 and alleges the mark is distinctive and is an indicator of Cosmetic Warrior’s brand. The complaint states that the defendants began operating the Lush Day Spa on July 18, 2011 and offers salon services and products. The complaint alleges the defendant operate a website at www.thelushdayspa.com and a facebook page under the same name. Cosmetic Warriors states that it has contacted the defendants and demanded they discontinue use of the Lush mark, but that the defendants have failed to discontinue. Cosmetic Warriors alleges the defendant’s use of “Lush” is virtually identical to its trademark and confusingly similar. The complaint makes claims of federal trademark infringement, unfair competition, deceptive consumer sales, and state law unfair competition and seeks an injunction, transfer of the domain name www.thelushdayspa.com, an accounting, damages, punitive damages, attorney fees and costs.

Practice Tip: The plaintiff seems very concerned with the defendant’s website, which is said to be a confusingly similar domain name, however, it has not alleged a cause of action for cybersquatting. The Anti-cybersquatting Consumer Protection Act of 1999 created a cause of action for registering, trafficking or using a domain name that is confusingly similar or dilutive to the trademark of another.

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Indianapolis; IN – [Note – Overhauser Law Offices, LLC, publisher of this site, represented Combined Public Communications, who prevailed in this matter]

Judge Jane E. Magnus-Stinson of the Southern District of Indiana has granted a motion to change venue in a patent infringement suit. Patent attorneys for Securus Technologies of Dallas, Texas, had filed a patent infringement lawsuit in the Southern District of Indiana alleging that Combined Public Communications (“CPC”), based in Kentucky, infringed Securus’s March 1, 2011 patent no 7,899,167 for “CENTRALIZED CALL PROCESSING.” The patent claims to provide “a centralized architecture for call processing” including voice over internet protocols (VOIP).

Securus’s patent lawyers alleged in the complaint that the litigants are competitors because they each provide “specialized call-processing and billing equipment and services for correctional institutions, direct local and long distance call processing for correctional facilities,” and other technologies relating to “Inmate Management Systems.”

The court’s order transferring venue notes that T-Netix, Inc., a company that is part of the Securus corporate family, filed a patent infringement suit against CPC in the Western District of Kentucky making similar patent infringement claims. Weighing the relevant factors, the court concluded that the interests of justice and convenience to the parties and witnesses favored a transfer of venue to the Western District of Kentucky.

Practice Tip: 28 U.S.C. § 1404(a) sets the standard for transfer of venue: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”


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Asked about the recent rise in lawsuits concerning PayTV events in bars and restaurants, I was quoted as follows:

“In my experience they tend to be owners of really small establishments,” Paul B. Overhauser, an attorney in Indianapolis who has represented hundreds of restaurants in piracy cases, said in an interview. “If there is a default judgment, it’s probably because the bar owner couldn’t afford an attorney.”

Overhauser said the sports promoters use the amount of those default judgments in pressuring other owners to settle. “They’ll say, ‘You better settle with us right away for $10,000 because this other one paid $150,000,'” he said. “If you’re a business owner and you get a letter like that, it’s pretty compelling if you don’t have a lawyer.”

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Indianapolis, IN – Copyright attorneys for DISH Network LLC of Englewood, Colorado, EchoStar Technologies LLC of Texas, and NagraStar LLC of Englewood, Colorado have filed a copyright infringement lawsuit in the Southern District of Indianaalleging that Thomas Williams of Coal City, Indiana infringed DISH’s copyrighted works by illegal satellite signal interception.

The complaint gives a detailed, technical description of a “pirate IKS television service” called Dark Angel. Apparently the Dark Angel service allows subscribers to intercept the DISH service without paying the license and subscription fees to DISH. The complaint alleges that Mr. Williams purchased subscriptions to the Dark Angel service on April 9 and July 19, 2010. The complaint makes claims of “circumventing an access control measure” and receiving satellite signals without authorization, both in violation of the Digital Millennium Act as well as one count of intercepting satellite signals in violation of the Electronic Communications Privacy Act.

Practice Tip: The complaint states that DISH learned of Mr. Williams identity through discovery in a lawsuit DISH has filed against Dark Angel. It states that DISH seized all of Dark Angel’s business records and gleaned the names of the end users from these business records.

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Indianapolis; IN – Trademark attorneys for JacobsParts, Inc. of Indianapolis, Indiana filed a trademark infringement suit in alleging United Integral, Inc. of Temple City, California infringed trademark registration nos. 85405544,85567855,7725369 and 85575355 for the marks JPQuality and JacobsParts, which have been issued by the US Trademark Office.

The complaint states that JacobsParts sells computer and office supplies and that a vast majority of its sales are through amazon.com. United Integral is alleged to also sell computer and office supplies through amazon.com. The complaint alleges that at an unknown time, United began describing itself on amazon as selling products bearing the JPQualityjacobsparts.jpg and JacobsParts marks. The complaint alleges United claims to offer these trademarked goods at lower prices than JacobsParts does. The complaint states that United’s unfair practices result in its products being listed first when customers are searching for the specific parts on amazon. It further alleges that United then sends customers generic and non-trademarked parts, which are lower quality, in an attempt to “pass off” its products. JacobsParts has included a list of the allegedly infringing products, which consists mainly of mobile phone cases, styluses, chargers and cables. The complaint seeks a declaration of infringement, an injunction, actual and treble damages, costs and attorney fees.

Practice Tip: The complaint makes only a bare-bones allegation of facts that would establish personal jurisdiction over Defendant United Integral in Indiana, “as a result of business regularly conducted by the Defendant within the State of Indiana.” Despite the allegation that United Integral sells products on “Amazon.com,” apparently JacobsParts did not make a purchase and have it shipped to Indiana before filing a complaint. Making such a purchase before filing a suit increases the chances of obtaining personal jurisdiction in Indiana.

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Indianapolis; IN – Trademark attorneys for Australian Gold, LLC of Indianapolis, Indiana filed a trademark infringement suit in the Southern District of Indiana alleging Devoted Creations, Inc. of Oldsmar, Florida infringed trademark registration no. 4089695 for the mark MUST HAVE, which has been registered with the US Trademark Office.

Australian Gold claims it has used the MUST HAVE trademark since 2010 to market its tanning preparation products. The complaint alleges that Devoted has introduced a competing tanning preparation product and is using the mark MUST HAVE! to market the product. The only difference between the marks is that Devoted uses an exclamation mark at the end. The complaint alleges that the marks are confusingly similar and claims the US Trademark Office rejected Devoted’s application to register MUST HAVE! The complaint makes claims of trademark infringement and unfair competition and seeks a judgment of infringement, an injunction, an order requiring all infringing products be delivered and destroyed, damages, attorney fees and costs.

Practice Tip: The complaint alleges, as a jurisdictional fact, that Devoted “does business in Indiana” and sells the allegedly infringing product at a distribution center in Danville, Indiana.

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Indianapolis, IN – Trademark attorneys for Australian Gold, LLC of Indianapolis, Indiana filed a lawsuit in the Southern District of Indiana against Ruelala Incorporated of Boston, Massachusetts seeking a declaration of non-infringement of the trademark RUE LA LA. Ruelala has registered trademark no. 3,484,375 and 3,484,376 while Australian Gold has a pending trademark Application No. 85/227,366 with the US Trademark Office.

Australian Gold alleges that it received a cease-and-desist letter from Ruelala, demanding that Australian immediately cease using the Rue La La mark. The complaint states that Australian sells a “tanning preparation product” for use in indoor tanning facilities under the name RUE LA LA. It is alleged that Ruelala operates a “private sale event website” that offers limited time sales on various consumer products, rather it is alleged that the products sold are “high-end third-party products.” Australian Gold states that none of the products sold by Ruelala are named RUE LA LA. Australian claims that no customers are confused by the co-existence of Australian Gold’s product and Ruelala’s service. Australian now seeks a declaratory judgment of non-infringement and no unfair competition based upon Ruelala’s threats of litigation.

Practice Tip: It appears from the complaint that Australian and Ruelala’s uses of the mark are in entirely unrelated lines of business. Ruelala will have to show that the products offered are sufficiently similar to create a likelihood of confusion. It is also interesting that Australian Gold alleges it has used the mark since November 2011. The complaint states that Ruelala applied for its trademarks in September 2010.
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Indianapolis, IN – The Indiana Court of Appeals has held that a successor company’s continued use of a trademark created a genuine issue of fact as to whether the successor should be liable for a breach of contract by its predecessor. Attorneys for Zeise & Sons Excavating, Inc. of Crown Point,Indiana had sued Boyer Construction Group Corporation (“Group”) of Highland, Indiana in the Lake County Superior Court for breach of contract and had argued that Group should be liable for the breach by its predecessor company, Boyer Construction Corporation (“Corporation”), under theories of breaching the corporate veil of an alter ego corporation. Zeise also argued that Group should be liable under a theory of successor liability. The contract in question involved construction of a retail development. It was undisputed that Zeise had performed all of its obligations under the contract and that Corporation had failed to pay as provided by the contract. The Lake County Superior court had granted Group a partial summary judgment in favor of Group, finding neither of Zeise’s theories created liability for Group.

The Court of Appeals reversed the summary judgment. The court noted that a decision to pierce to corporate veil requires a fact-sensitive inquiry. The court noted that Zeise had presented numerous facts to support piercing the corporate veil, including continued use of trademarks, logos and website address. In addition, the Court of Appeals found that continued use of trademarks, logos and website address created issues of material fact regarding Ziese’s successor liability claim. The court, however, declined to issue a summary judgment in favor of Ziese. Rather, the court found that Ziese raised a genuine question of a material fact and therefore summary judgment was not appropriate. The case has been remanded for trial.

Practice Tip: When a company sells its assets to another company, it is important to remember intellectual property such as trademarks, patents and copyrights. Failure to document an assignment or license can result the “piercing the corporate veil,” and personal liability of the business owners.

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 The US Trademark Office issued the following 140  trademark registrations to persons and businesses in Indiana in March, 2012, based on applications filed by Indiana Trademark Attorneys:

TM Number Title
1 4,119,874 WORLD CLASS BEER VIEW
2 4,118,716 ON THE BUBBLE VIEW
3 4,118,715 HIT THE DECK VIEW
4 4,119,863 BRAND POSITION ANALYSIS VIEW
5 4,118,628 DISTINXION VIEW

 

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Indiana patent attorneys obtained issuance of the following 119 patents from the US Patent Office to persons and businesses in Indiana in March, 2012:

 

Patent No. Title
1 RE43,266 Rotary attenuator and method of making it 
2 D656,591 Wax-less integral skin toilet gasket 
3 D656,581 Dairy teat sprayer 
4 D656,327 Bench 
5 8,144,263

Projection lens system and method 

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Contact Information
Indiana Intellectual Property: IP Litigation, Patents, Trademarks, Copyrights
  • Seventh Circuit
  • Northern District of Indiana
  • Southern District of Indiana
Paul B. Overhauser
Overhauser Law Offices, LLC
Greenfield
18 E Main St #202
Greenfield, IN 46140
Phone: 317.467.9100
Fax: 866.283.8549
Indianapolis
101 W Ohio St #2000
Indianapolis, IN 46204
Phone: 317.891.1500
Fax: 866.283.8549

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