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Indianapolis, IN – Trademark attorneys for Orange Communications, LLC of Minneapolis, Minnesota filed a trademark ,trade name infringement in the Southern District of Indiana alleging Orange Public Relations, LLC of Fishers, Indiana and Blastmedia, Inc of Fishers, Indiana infringed Orange trade name and trademark, which apparently has not been registered with the US Trademark Office.

OrangeComm.jpgOrange Communications alleges that it applied for LLC status in Indiana in January 2010 and by January 2011 had set up its website, facebook page and twitter account. Orange Communications describes its trademark as “a circular, orange symbol which resembles a gear with a hole in the middle.” The plaintiff alleges that Orange PR was organized in May 2011 and began a website, facebook page and twitter account soon after. The complaint states that Orange Communications sent a cease and desist letter to Orange PR in January 2011 demanding that Orange PR stop using the Orange trade name and logo. The complaint states that Orange PR changed its twitter handle to “Orange Blast” but has not otherwise responded. The complaint further alleges that potential clients have been confused about the relationship and identity of the Plaintiff and Orange PR. The complaint makes claims of unfair competition and trademark infringement under the federal Lanham Act and common law trademark infringement. Orange Communications seeks an injunction, damages, costs and attorney fees.

Practice Tip: The complaint names two corporate defendants: Orange PR and Blastmedia LLC. However, it is unclear what role the plaintiff believes that Blastmedia had in the alleged unfair competition and infringement. The only mention of Blastmedia is the allegation that “Defendants Orange PR and Blastmedia share the same CEO and other senior management employees.”
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South Bend, IN – The Northern District of Indiana has issued an order consolidating related trade secret, copyright infringement and patent infringement lawsuits a dispute between RV manufacturers, Heartland Recreational Vehicles, LLC of Elkhart, Indiana and Forest River, Inc. of Elkhart, Indiana. This order address five cases currently pending in Northern District of Indiana: 3:08-CV-490-JD-CAN, 3:09-CV-302-JD-CAN, 3:10-CV-011-JD-CAN, 3:10-CV-409-JD-CAN, and 3:11-cv-250-JD-CAN. In addition to Heartland and Forest River, Brian Brady, Catteron Partners and Thor Industries are also named in the suits.
The court found that three of the cases, 3:08-CV-490-JD-CAN, 3:09-CV-302-JD-CAN, and 3:10-CV-409-JD-CAN, involve Heartland’s acquisition of Forest River’s Master List. Since they involve similar questions, the court consolidated these three cases.
The court did not consolidate two of the cases. The court noted that 3:10-CV-011-JD-CAN is a copyright infringement case, where Forest River claims that Heartland infringed its “r.Pod” floor plan. The fifth case, 3:11-cv-250-JD-CAN, is a patent infringement case. In June. Patent lawyers for Heartland Recreational Vehicles, LLC of Elkhart, IndianaHeartland.jpg filed a patent infringement lawsuit alleging Forest River, Inc. of Elkhart, Indiana infringed Patent No. 7,878,545, Travel trailer having improved turning radius, which has been issued by the US Patent Office.
Indiana Intellectual Property Law and News blogged about the case here: Heartland Recreational Vehicles LLC Sues Forest River Inc. for Patent Infringement of Travel Trailer Turning Radius. The court found that the patent infringement case should not be consolidated because it would likely create confusion and make the litigation more complex.
The court, however, ordered that discovery in all five of the cases be consolidated.

Practice Tip: Under Federal Rule of Civil Procedure 42(a), common questions of law and fact are a prerequisite to the consolidation of cases

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Indianapolis, IN – Copyright attorneys for Broadcast Music, Inc. (BMI) of New York, New York, along with Abkco Music, Inc, Screen Gems-EMI Music, Inc. of and Jay-Boy Music Corporation of have filed a copyright infringement suit in theBMI.jpg Southern District of Indianaalleging B & D Restaurants, Inc. d/b/a Gallagher’s II a/k/a Gallagher’s Pizza, Nicholas Himes and David R. Himes of Indianapolis, Indiana infringed the copyrighted works Brown Sugar and Honky Tonk Women published by Abkco Music, Inc., We Gotta Get Out Of This Place, publisher Screen Gems-EMI Music, Inc. and You Really Got Me, publisher is Jay-Boy Music Corporation, of which all have been registered by the US Copyright Office.

The complaint alleges that the copyrighted songs were performed publicly at Gallagher’s II, also known as Gallagher’s Pizza, on September 10 and 11, 2011. The complaint states that Nicholas and David Himes are directors of B & D Restaurants have a financial interest and management responsibilities for the establishment. The complaint makes four claims of willful copyright infringement and seeks an injunction, damages, costs and attorney fees.

Practice Tip: BMI is known for aggressively defending copyrights and seems to be targeting Indiana bars and restaurants where copyrighted songs were performed without license or authorization. This is the third copyright infringement case filed this month in Indiana district courts. We blogged about the other two cases here and here.
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Indianapolis, IN – Trademark attorneys for Audio Products Corporation of Indianapolis, Indiana filed a trademark infringement suit in the Southern District of Indiana alleging Monster, Inc. of Brisbane, California infringed trademark registration no.1.807.139 for the ENERGY Design and 2,777,234 for the mark ENERGY registered with the US Trademark Office.

The complaint states that Audio designs and manufactures speakers, which are sold in major retail outlets. Audio alleges it has used the Audio-Energy.jpgENERGY marks in connection with its products since at least 1984. The complaint states that Monster has adopted the marks NERGY and N-ERGY to market speakers. The complaint alleges that NERGY and N-ERGY are confusingly similar to Audio’s ENERGY marks and/or a colorable imitation. The complaint characterizes Monster’s marks as attempts to misrepresent its products. The complaint further states that Monster had filed a trademark application with the US Trademark Office seeking to register the NERGY and N-ERGY. The US Trademark Office rejected the application, stating that it was confusingly similar to Audio’s marks. The complaint makes claims of trademark infringement, false designation of origin, common law trademark infringement. Trademark attorneys are seeking a declaration of infringement, an injunction, the destruction of all products and/or NERGY and N-ERGY marks, actual damages, treble damages, costs and attorney fees.

Practice Tip: The complaint alleges that Monster is selling products in the district to establish personal jurisdiction. No specific sales in Indiana are listed; however, the complaint states that limited jurisdictional discovery is expected to uncover Indiana sales.
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South Bend, IN – Copyright attorneys for Broadcast Music Inc. (BMI) of New York, New York, Universal-Millhouse Music a Division of Magna Sound Corporation, Marvin J. and Laleta Moore Living Trust is a Trust d/b/a Green Door Music, Central Songs a Division of Beechwood Music Corporation, Sutjujo Music, Faizilu Publishing, Sony/ATV Songs LLC, Mann and Weil Songs, Inc., Welsh Witch Music, EMI Al Gallico Music Corp., Geomantic Music, Unichappell Music Inc., Two Night Music, Peermusic III Ltd., Universal-Champion Music Corporation, Sony/ATV Songs LLC d/b/a/ Sony/ATV Acuff Rose Music, Galeneye Music, Universal-Songs of Polygram International Inc., Lost Boys Music, Tokeco Tunes, Sony/ATV Songs LLC d/b/a/ Sony/ATV Tree Publishing and Big Yellow Dog LLC d/b/a Big Yellow Dog Music filed a copyright infringement suit in alleging Gibson’s, Inc. d/b/a The Big Easy and Oscar N. Gibson of Elkhart, Indiana infringed the copyrighted works of Don’t Tell My Heart a/k/a Achy Breaky HeartBillyRayCyrus.jpg by Don Von Tress, Four Walls by Marvin Moore and George Campbell, He’ll Have to Go by Joe Allison and Audrey Allison, I’d Really Love to See You Tonight by Parker McGee, Just Once by Barry Mann and Cynthia Weil, Landslide by Stevie Nicks, Let Me Be There by John Rostill, ManEater by Sara Allen, John Oates and Daryl Hall, Ring My Bell by Frederick Knight, Satin Sheets by John E Volinkaty, Signs by Les Emerson, Tiny Dancer by Elton John and Bernie Taupin, Total Eclipse of the Heart by Jim Steinman, You Ain’t Much Fun by Toby Keith and Carl Geoff Jr. and Whiskey Girl by Scott Emerick and Toby Keith, which have been registered by the US Copyright Office.

The complaint alleges Gibson’s, Inc. operates a bar in Elkhart called The Big Easy. Oscar N. Gibson is the owner of Gibson’s, Inc. The complaint alleges that on November 17, 2011, the fifteen copyrighted songs were performed at The Big Easy without license or authorization from the copyright owners. The complaint seeks an injunction, damages, costs and attorney fees.

Practice Tip: In this case, the plaintiffs have sued the owner of Gibson’s personally as well as the corporate entity. Copyright laws allow an officer of a corporation to be held liable for the corporation’s copyright infringement if the officer contributes to the infringement by inducing or encouraging the infringement. An officer can also be liable for copyright infringement if the officer supervises the infringing conduct and has a direct financial benefit from the infringement.
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Indianapolis, IN – The Southern District of Indiana has granted Draper, Inc’s of Spiceland, Indiana, motion for limited jurisdictional discovery in a patent infringement case. In November 2010, patent attorneys for Draper, Inc’s of Spiceland, Indiana filed a patent infringement lawsuit in the Southern District of Indiana alleging that MechoShade Systems, Inc and Joel Berman Associates, Inc. of Long Island City, New York infringed patent no. 6,164,428, Wrap spring shade operator, which has been issued by the US Patent Office.

Joel Berman Associates has been dismissed from the suit at this point. MechoShade has filed a motion to dismiss for lack of personal jurisdiction. In response, Draper requested the Court stay ruling on the motion to dismiss and allow Draper.jpgDraper to conduct jurisdictional discovery. Although MechoShade appropriately responded to Draper’s initial discovery requests, it refused to comply with subsequent requests. The court, in this ruling, addressed whether Draper’s requests were appropriate for the limited purpose of the personal jurisdiction inquiry. The court ordered MechoShade to produce the following: documents showing sales communications contacts in Indiana, information showing all warranty and repair work performed in Indiana, summary of presentations given in Indiana, sales lead lists. However, the court determined that MechoShade did not have to produce Commission Reports and Booking Reports, general marketing material, and access to its intranet. The court gave MechoShade until February 24, 2012 to produce the documents it ordered. Further the court ordered that all briefing on the motion to dismiss should be complete by March 24, 2012.

Practice Tip: The court has ordered that MechoShade produce a number of these items as summaries with the accuracy of the summaries to be verified by oath or declaration.
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Evansville, IN – Chief Judge Richard L. Young has affirmed Magistrate Judge William G. Hussmann‘s discovery ruling that denied a request to inspect production facilities by Intertape Polymer Corp. of Bradenton, Florida, in a patent infringement lawsuit case. In May 2010, patent attorneys for BerryPlastics.jpgBerry Plastics Corporation of Evansville, Indiana filed a patent infringement lawsuit in the Southern District of Indiana alleged that Intertape infringed patent no.7,476,416, Process for preparing adhesive using planetary extruder, which has been issued by the US Patent Office.

The patented technology is described as “a manufacturing process for preparing an adhesive using specifically modified planetary roller extruder.” Intertape had filed a motion to compel inspection of Berry’s production facilities, to observe the facilities in use and to perform tests on the goods produced during the inspection. Berry objected, and the issue was put before Magistrate Hussmann. The Magistrate denied Intertape’s request, finding that Intertape could use less intrusive methods to uncover the information it was seeking. Specifically, the Magistrate suggested that Intertape depose a Berry representative and pointed to video and photographs that Intertape already had.

Intertape filed objections to the Magistrate’s ruling, but Chief Judge Young affirmed, concluding “The Magistrate Judge balanced the interest of both parties, and came up with a fair and logical resolution for obtaining the information Intertape seeks.”

Practice Tip: This ruling addresses a discovery dispute. Pursuant to Federal Rule of Civil Procedure 37, a party must make a good faith attempt to resolve a discovery dispute before seeking a court order to compel.

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Indianapolis, IN – In an update to our earlier blogs, the Hollywood Report has published a long article about Indiana’s Right of Publicity Law, I.C. 32-36-1-8, and the pending bill to amend that law. Mmonroe.jpgThe article states that dead celebrities “enjoy phenomenal legal rights in the state.” Several Indiana intellectual property attorneys who represent the estates of deceased celebrities are quoted.

The article focuses on the recent decision of the John Dillinger case involving the Right to Publicity law, which Indiana Intellectual Property Law and News blogged about here.

As we have previously blogged about, Indiana’s Right to Publicity law is considered one of the strongest in the world.

Practice Tip: In order to pass this session, the bill must pass the Senate no later than March 14, 2012 since the General Assembly is in a short session this year. As we blogged, the bill has already passed the Indiana House. At this point, the bill is in a senate committee, but no hearings are scheduled for next week.
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Indianapolis, IN – Copyright attorneys for Broadcast Music, Inc. (BMI) New York, New York, along with Adult Music, BMI.jpgGems-EMI Music, Inc., Universal-Songs of Polygram International, Inc., EMI Blackwood Music, Inc. and Counting Crows, LLC d/b/a Jones Falls Music have filed a copyright infringement suit in Southern District of Indiana alleging C & R Restaurants, LLC of Fishers, Indiana infringed the copyrighted works I want you to be me by Rick Neilsen, Jessie’s Girl by Rick Springfield, and Mr. Jones a/k/a Mister Jones by Adam Duritz, David Bryson, Matt Walley, Charlie Gillingham and Steve Bowman which have been registered by the US Copyright Office.

The complaint states C & R operates a restaurant called Casler’s Kitchen and Bar in Fishers. BMI has also named the owner of C & R, Enrique Fonseca, as a defendant in the lawsuit, stating that he had the right and ability to control the alleged infringement and financially benefitted from the alleged infringement. The complaint alleges that three copyrighted works were performed at Casler’s Kitchen & Bar on August 27, 2011 without a license or authorization from the copyright owners. BMI is seeking an injunction, damages, attorney fees and costs.

Practice Tip: In this case, the plaintiffs have sued the owner of alleging C & R Restaurants, LLC personally as well as the corporate entity. Copyright laws allow an officer of a corporation to be held liable for the corporation’s copyright infringement if the officer contributes to the infringement by inducing or encouraging the infringement. An officer can also be liable for copyright infringement if the officer supervises the infringing conduct and has a direct financial benefit from the infringement.
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Indianapolis, IN –Senior Judge Larry J. McKinney of the Southern District of Indiana has allowed an additional patent to be added to a complex patent infringement suit over Ethanol byproducts. The plaintiff in this case, GS CleanTech Corporation of New York, New York had requested to amend its complaint to add infringement claim regarding patent no. 8,008,516, which has beenPatent Diagram.jpg issued by the US Patent Office, to the lawsuit. As orgininally filed, CleanTech had filed a patent infringement lawsuit alleging that twenty-two defendants had infringed patent no. 7,601,858, Method of processing ethanol byproducts and related subsystemsTITLE.

The court describes the ‘516 patent as a continuation of the ‘858 patent and directed to the same technology. The ‘516 patent was issued by the US Patent Office on August 30, 2011. Court found that Cleantech’s motion to amend did not involve undue delay, bad faith or a dilatory motive. The court found that adding the ‘516 patent “serves the goal of furthering the efficient adjudication of the case because the ‘516 and ‘858 patents are directed to similar technology and involve similar claim terms.” Three defendants objected to the amendment of the complaint, however, the court did not find any of the objections sufficient to prevent the amendment of the complaint.

As we blogged in October 2011, Judge McKinney has already held a Markman hearing: Indiana Court issues Markman Ruling in GS Cleantech v. Big River for Ethanol Processing Patents.

Practice Tip: The litigation over the ‘858 patent has been pending for several years and involves many parties. This is a very complex case from a procedural standpoint. While the Markman ruling has already been issued, the court’s order pointed out that the discovery process has not been started.
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Contact Information
Indiana Intellectual Property: IP Litigation, Patents, Trademarks, Copyrights
  • Seventh Circuit
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Paul B. Overhauser
Overhauser Law Offices, LLC
Greenfield
18 E Main St #202
Greenfield, IN 46140
Phone: 317.467.9100
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