Indiana Intellectual Property Law News

February 14, 2012

Trademark Controversy Over Madonna’s Super Bowl Performance

Indianapolis, IN – The threat of a copyright and trademark infringement lawsuit may have influenced Madonna‘s playlist for her Super Bowl XXXXVI half time performance at Lucas Oil Stadium in Indianapolis. According to reports, Joe Francis, who owns the Girls Gone Wild trademark, sent Madonna a cease-and-desist letter that threatened to sue her if she performed the song from her new album, “MDNA,” which is scheduled for release in March.

Joe Francis, founder of the Girls Gone Wild adult entertainment series, owns the rights to trademark registration no. 4,010741 for the mark GIRLS GONE WILD registered with the US Trademark Office.

Madonna’s Super Bowl performance did not include the Girls Gone Wild song. Another report states that Madonna never planned to play the allegedly infringing song. As of today’s date, a search of Justia.com does not show any pending lawsuits filed by Joe Francis against Madonna.

February 13, 2012

Southern District Denies Stryker Corporation’s Motion to Add Additional Counterclaims in Patent Infringement Case against Hill-Rom Services

By Overhauser Law Offices, LLC

Indianapolis, IN – Magistrate Judge Denise K. LaRue of the Southern District of Indiana has denied Stryker Corporation’s Motion for Leave to Amend Its Counterclaims, which sought permission to add three more patent infringement counterclaims referencing three additional patents.

In April 2011, patent attorneys for Hill-Rom Services, Inc. of Batesville, Indiana, filed a patent infringement lawsuit in the Southern District of Indiana alleging that Stryker Corporation of Kalamazoo, Michigan had infringed twelve of its patents: Patent No. 6,993,799, HOSPITAL BED; Patent No. 7,644,458, HOSPITAL BED; Patent No. 6,588,523, STRETCHER HAVING A MOTORIZED WHEEL; Patent No. 6,902,019, STRETCHER HAVING A MOTORIZED WHEEL; Patent No. 7,011,172, PATIENT SUPPORT APPARATUS HAVING A MOTORIZED WHEEL; Patent No. 7,284,626, PATENT SUPPORT APPARATUS WITH POWERED WHEEL; Patent No. 7,090,041, MOTORIZED TRACTION DEVICE FOR A PATIENT SUPPORT; Patent No. 7,273,115, CONTROL APPARATUS FOR A PATIENT SUPPORT; Patent No. 7,407,024, MOTORIZED TRACTION DEVICE FOR A PATIENT SUPPORT; Patent No. 7,828,092, MOTORIZED TRACTION DEVICE FOR A PATIENT SUPPORT; Patent No. 6,772,850, POWER ASSISTED WHEELED CARRIAGE; and Patent No. 6,752,224, WHEELED CARRIAGE HAVING A POWERED AUXILIARY WHEEL, AUXILIARY WHEEL OVERTRAVEL, AND AN AUXILIARY WHEEL DRIVE AND CONTROL SYSTEM.

Stryker had counterclaimed with thirteen claims of patent infringement against Hill-Rom. In late October 2011, Stryker filed a motion seeking to add three more infringement claims regarding Patent No. 6,264,006, Brake for castered wheels, Patent No. 7,124,456, Articulated support surface for a stretcher or gurney and Patent No. 7,395,564, Articulated support surface for a stretcher or gurney.

In its decision today, the court noted that the three proposed patent infringement claims would involve significant facts and issues, such as claim-definition, claim-application, infringement and validity; that would be wholly separate and distinct from the present claims. The court stated that “The new technologies and new product hitched to the new claims will needlessly complicate and/or prolong the Court’s and the jury’s tasks.”

Practice Tip: The court’s opinion notes that Stryker stated a plan to file an additional lawsuit that would separately make these new patent infringement claims against Hill-Rom if the court denied its motion to add counterclaims to the present lawsuit. The court noted a new suit was a “ready alternative” for Stryker.
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February 10, 2012

Keith Lewis v. Grote Industries, Patent Infringement Case over LED Lighting Devices, Transferred to the Southern District

By Overhauser Law Offices, LLC

New Albany, IN – A patent infringement case originally filed in the Northern District of Illinois has been transferred to the Southern District of Indiana. In October, patent lawyers for Keith Lewis of the United Kingdom filed a patent infringement suit in the Northern District of Illinois alleging Grote Industries, Inc. of Madison, Indiana infringed patent no. 7,252,407, Lighting apparatus, which has been issued by the US Patent Office.

The case has now been transferred to the Southern District of Indiana upon the motion of Grote Industries. The complaint alleges that twenty-one lamp model numbers offered for sale by Grote infringe upon the ‘407 patent. The complaint describes the allegedly infringing products as LED lighting devices and work lamps. Lewis’s patent attorneys seek a declaration of infringement, an injunction, and damages.

Practice Tip: In filing in the Northern District of Illinois, Lewis’s patent attorneys alleged that the defendant sold products in Illinois to argue that the Illinois district court had personal jurisdiction over Grote, an Indiana company. However, the complaint reveals few ties to Illinois, since the plaintiff is from the United Kingdom and the defendant is an Indiana company. Therefore, as the Northern District of Illinois concluded, Southern District of Indiana appears to be a more appropriate venue.
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February 8, 2012

Update: Right of Publicity Bill Passes Indiana House, Now Before Indiana Senate

By Overhauser Law Offices, LLC

Indianapolis, IN – In an update to our blog last week, a bill in the Indiana General Assembly that would make changes to Indiana’s Right of Publicity Law, I.C. 32-36-1-8, passed the Indiana House, 85-7, on January 30. The bill is now before the Senate Committee on Public Policy. No hearing is scheduled at this time.

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

Practice Tip: Now that the bill has passed the Indiana House, it must pass the senate and be signed by Governor Daniels to become law. It looks like it is moving quickly enough that it could be enacted by the March 14 short session deadline.
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February 7, 2012

Counterfeit Super Bowl Goods Lead to Federal Seizure and Arrest for Criminal Trademark and Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, IN – Federal authorities, led by the Homeland Security Investigations division of the Immigration and Customs Enforcement (ICE), have seized counterfeit Super Bowl goods, shut down websites and made one arrest in a targeted effort to crack down on counterfeit sports goods and websites. According to a government press release, federal authorities seized fake jerseys, caps, t-shirts and other souvenirs illegally bearing NFL and other sports trademarks, trade names and copyrights. According to the press release, the operation has been ongoing since October 2011 and culminated in the raids and arrest on Thursday, February 2. The total value of the goods seized was reported to be $4.8 million.

Indianapolis Metro Police Department also participated in the operation, which focused on street vendors in and around the Indianapolis Super Bowl village as well as counterfeit sellers around the world. According to a news report, a store called Off the Wall in Fort Wayne was one of the stores raided by federal agents.

The operation, dubbed Operation Fake Sweep, also targeted websites that illegally stream sports events and sell counterfeit goods. Over 300 websites were shut down. Yonjo Quiroa of Michigan was the sole person arrested. He has been charged with criminal copyright infringement based on his alleged operation of websites that illegally streamed live sporting events. According to news report, many of the websites selling counterfeit goods were from.

February 6, 2012

U.S. Supreme Court Issues Copyright Opinion in Golan v. Holder, Protecting Foreign Copyrights in the United States

By Overhauser Law Offices, LLC

Washington, DC – The U.S. Supreme Court has affirmed the constitutionality of the Uruguay Round Agreements regarding copyright protection for foreign parties. In 1994, Congress enacted Uruguay Round Agreements Act, which implemented negotiations in the World Trade Organization’s Marrakech Agreement. The law in question restored foreign copyrighted works that had previously been in the public domain back to the private domain and granted U.S. copyright protection for those works. Copyright attorneys for Golan and a group of musicians who had used foreign works while the works were in the public domain had filed this lawsuit against United States Attorney General Eric Holder, arguing that the Act violated the U.S. Constitution’s Copyright Clause and violated the First Amendment Rights of those who had free access to the works that were restored to private domain.

The Supreme Court rejected these challenges and affirmed the constitutionality of the Act. The Court’s opinion emphasized that the Act brought the United States’ law into harmony with that of other nations. The SCOTUSblog has links to all the parties’ and amicus briefs as well comprehensive coverage of this case.

The Court’s opinion affirmed the Tenth Circuit Court of Appeals decision and the decision of Judge Babcock of the United States District Court of Colorado.

Practice Tip: The U.S. Supreme Court has a long trend of strenuously protecting the rights of intellectual property owners. This case is yet another example.
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February 4, 2012

Indiana Patent Attorneys Obtain 174 Patents for Indiana Companies in January, 2012

By Overhauser Law Offices, LLC

Indiana patent attorneys obtained issuance of the following 174 patents from the US Patent Office to persons and businesses in Indiana in January, 2012.

	Pat. No.	Title
1	D653,405	Cage having a divider panel for containing an animal
2	D653,173	Truck cab
3	D653,161	Spindle vase
4	D653,047	Health care bed frame
5	8,107,652	Controlled leakage omnidirectional electret condenser microphone element

February 3, 2012

Trademark Registrations Issued to 146 Indiana Companies in January, 2012

By Overhauser Law Offices, LLC

The US Trademark Office issued the following 146 trademark registrations to persons and businesses in Indiana in January, 2012, based on applications filed by Indiana Trademark Attorneys:

	Reg. Number	Mark	Click to View
1	4,089,821	PETSIT USA	VIEW
2	4,092,607	THE SENDING CENTER	VIEW
3	4,091,138	SUBSCRIBERS FANS AND FOLLOWERS	VIEW
4	4,091,088	VIVACIT-E	VIEW
5	4,090,901	VISITBLOOMINGTON.COM	VIEW

February 2, 2012

Newt Gingrich Sued for Copyright Infringement of “Eye of the Tiger”

By Overhauser Law Offices, LLC

Chicago, IL – Copyright attorneys for Rude Music Inc. of Palatine, Illinois have filed a lawsuit in the Northern District of Illinois alleging that Republican presidential candidate Newt Gingrich and the American Conservative Union of Washington, D.C. infringed the copyrighted song “Eye of the Tiger,” which has been registered with the US Copyright Office.

Rude Music is owned by Frank Sullivan, who is a co-author of “Eye of the Tiger,” which was the theme song from the movie Rocky III. The complaint alleges that Newt Gingrich has been appearing at campaign and fundraising events since 2009 where the copyrighted song was played as he took the stage. Some of these events were fundraising events for the American Conservative Union while other events were part of Gingrich’s presidential campaign. The complaint states that Gingrich’s use of the song is unlicensed, unauthorized and willful infringement. Interestingly, the complaint alleges that Gingrich’s experiences in the House of Representatives as well as being president of Gingrich Productions, a multimedia company, make him knowledgeable about copyright infringement. The complaint seeks an injunction barring Gingrich’s use of the song, damages, attorney fees and costs.

Practice Tip: While this type of unauthorized use of a copyrighted song is likely infringement, it is an interesting question whether Gingrich would have the defense of fair use, particularly in the context of political speech and its first amendment protection. Other political campaigns have also faces similar suits. In 2008, John McCain was sued over his use of the song “Running on Empty” by Jackson Brown. McCain filed a motion to dismiss, citing the fair use doctrine. The court denied the motion to dismiss, but the case was settled soon after.
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February 1, 2012

Southern District Dismisses AirFX’s Patent Infringement Suit Against Custom Cycle Control Systems Over Motorcycle Suspension

By Overhauser Law Offices, LLC

Indianapolis, IN – The Southern District of Indiana has dismissed a patent infringement lawsuit, finding that the complaint failed to give fair notice of the patent infringement claim. Patent attorneys for AirFX, LLC of Indianapolis, Indiana had filed a lawsuit against Custom Cycle Control Systems, Inc. of Las Vegas, Nevada, alleging Custom had infringed patent no. 7,559,396 Motorcycle air suspension System.

AirFX’s complaint alleged that AirFX received a defective product made by Custom Cycle Control Systems from a customer, who believed he had purchased a genuine AirFX product that utilized the patented technology. AirFX claims that Custom Cycle has been manufacturing and selling products that infringe its patent and that the inferior products of Custom Cycle have damaged the reputation of AirFX. Patent attorneys filed an amended complaint in September.

In this entry by Chief Judge Richard L. Young, the court noted several “deficiencies that concern the court” in the amended complaint. The court pointed out that the Plaintiff failed to identify the means or theory of infringement and simply alleged the defendant infringed the patent. Further, the complaint included a period before the patent was assigned to AirFX. Finally, the court noted that the Plaintiff’s patent attorney failed to attach a copy of the patent to complaint. The Plaintiff did attach a copy of a patent, however, it was not the patent at issue in this case. In sum, the court found the complaint failed to give the defendants sufficient notice of the claims against it. The court gave AirFX only 15 days to file a second amended complaint.

Practice Tip: As we blogged about last June, AirFX filed this patent infringement case at the same time as a second patent infringement case against J.D. Braun and other out-of-state defendants. The patent infringement case against J.D. Braun was dismissed in November for lack of personal jurisdiction. See our blog on the dismissal. Unless AirFX is able to amend their complaint sufficiently within the short 15 day deadline, AirFX’s patent infringement attorneys will have struck out in the Southern District.
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