The US Trademark Office issued the following 164 trademark registrations to persons and businesses in Indiana in August, 2011, based on applications filed by Indiana Trademark Attorneys:

Reg. Number

Mark

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1 4,015,515 SAMTEC VIEW
2 4,013,415 STEPS 2 ENROLL VIEW
3 4,017,421 INDIANA WHOLESALE DEALERS VIEW
4 4,017,397 WELCOME TO INDY NOW GO HOME VIEW
5 4,017,396 INDYSOCIALDIARY.COM VIEW

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Indianapolis, IN – A patent infringement case originally filed in the Western District of Wisconsin has been transferred to the Southern District of Indiana. Patent lawyers for Hill-Rom Services, Inc of Batesville, Indiana filed a patent infringement suit alleging Stryker Corporation doing business as Stryker Medical and Stryker Sales Corporation of Kalamazoo, Michigan infringed patent numbers 5,771,511, Thumbnail image for Patent Picture.jpgCommunication network for a hospital bed, 7,237,287, Patient care bed with network, and seven other hospital bed communication patents which has been issued by the US Patent Office.

The nine patents at issue are communications systems and adjustment systems for hospital beds. The complaint alleges that Stryker manufactures and offers for sale three lines of hospital beds, InTouch, S3, and GoBed II, which infringe Hill-Rom’s patents. Stryker filed a motion to transfer the case to the Southern District of Indiana, which was granted on August 15.

Practice Tip: 28 U.S.C. 1404 allows transfer of a case from one district court to another by order of the court or by stipulation and consent of the parties. It appears that Stryker argued that the Southern District of Indiana was a more convenient and a less expensive jurisdiction to litigate this case. One of Stryker’s attorneys filed declaration with the estimated travel expenses to the Western District of Wisconsin. Since the Southern District of Indiana is the plaintiff’s home district in this case, it is hard to argue that transfer would cause prejudice to the plaintiff.

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Indianapolis, IN – Trademark lawyers for AFC Enterprises, Inc. of Georgia, doing business as Popeye’s Chicken, filed a trademark infringement suit alleging Christopher Payne, LP&P Foods, and ten John Does of fIndiana infringed trademark registration no. 1030944 for the mark POPEYES, Thumbnail image for Popeyes.jpg1107575 POPEYE SIGN DESIGN WITH COLOR and numerous other trademarks registered with the US Trademark Office. Popeye’s has also registered copyrights for some of the items at issue here.

This dispute arises out of the operation of a Popeye’s restaurant at 6014 East 46th Street in Indianapolis utilizing the Popeye’s trademarks. According to the complaint, AFC had a franchise agreement with another individual, not a party to this suit, to operate a Popeye’s franchise at this Indianapolis location, however, that franchise agreement was terminated in August 2010. Following the termination of the franchise agreement, Mr. Payne, who operated a Popeye’s franchise in Fort Wayne with LP&P Foods, approached AFC and sought to become the franchisee at this location under a new franchise agreement. AFC declined to enter a franchise agreement with Mr. Payne. On July 31, 2011, AFC learned that Mr. Payne was operating a fried chicken restaurant at the East 46th Street location and was utilizing the Popeye’s marked items that were left behind when the franchise closed, including signs and menu boards. According to the complaint, the restaurant ceased operation on August 6, 2011 and tarps covered the signs.

Practice Tip: In Indiana, criminal conversion is defined as knowingly exerting unauthorized control over property of another person. Indiana law allows the person harmed by criminal conversion to sue for treble damages, equal to three times actual damages, as well as attorney fees and cost. If true, the allegations contained in this complaint appear to make a case for conversion, and the defendants are likely to be liable for a significant monetary sum.
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Chicago, IL – The Seventh Circuit Court of Appeals affirmed that a toilet paper design was functional and not subject to trademark protection. Georgia-Pacific began selling Quilted Northern toilet paper about twenty years ago and obtained trademarks, copyrights, and patentsPictures from Opinion.jpg of the quilted design. Kimberly-Clark later began selling competing toilet paper that had a diamond design similar to Quilted Northern, called Cottonelle. Intellectual property attorneys for Georgia-Pacific then filed a trademark infringement lawsuit against Kimberly-Clark alleging their new product infringed the Quilted Northern trademark and was unfair competition. The Northern District of Illinois determined that the diamond design was functional and not subject to trademark protection, therefore granting summary judgment in favor of Kimberly-Clark. Georgia-Pacific appealed to the Seventh Circuit Court of Appeals, which affirmed the lower court.

Judge Evans wrote an unusually entertaining opinion for the court that begins: “Toilet paper. This case is about toilet paper. Are there many other things most people use every day but think very little about? We doubt it.” (Editorial Note – Sadly Judge Evans passed away on August 10, 2011, and this opinion may have been one of his last.) Judge Evans commented that the intellectual property attorneys representing both sides were “truly-first rate” and had cited over 119 cases and 20 federal statutes.

Quilted Northern TV Ad (2003) – YouTube.mht

Practice Tip: The registration of a trademark creates a strong presumption of validity. However, if a trademark is challenged as being a functional element of a product, rather than an identifying mark, the mark holder will then have the burden of proving that the mark is not merely functional. The U.S. Supreme Court addressed these types of claims in TrafFix Devices v. Marketing Displays, Inc. In its opinion, the Court in this case quoted the TrafFix opinion to describe the heavy burden of the mark holder to show that “the feature is not functional, for instance by showing that it is merely an ornamental, incidental, or arbitrary aspect of the device.”

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Indianapolis, IN – Trademark lawyers for Choice Hotels International Inc. of Silver Spring, Maryland filed a trademark infringement suit in the Southern District of Indianaalleging Shreya Pravin LLC, of Lebanon, Indiana, Vina Investments, LLC of Valrico, Florida, Riddhi, LLC of Corona, California, Sunil R. Patel of California and Shirish Patel of California have infringed trademark registration no. 1,050,372 for the mark QUALITY, which has been registered with the US Trademark Office.

Choice is a hotel franchise company that owns the numerous trademarks at issue in this suit. According to the complaint, Shreya Pravin LLC entered a franchise agreement to operate Choice franchise in Lebanon, Indiana. As part of the franchise agreement, Pravin was granted license to use the QualityQuality.jpg mark on various items including: signs, stationary, lobby displays, and items in the hotel rooms. In June 2008, Choice sent Pravin a notice of default claiming Pravin had not paid franchise fees due under the contract. In August 2008, Choice sent Pravin a letter terminating the franchise agreement due to continued breach of the contract. The letter demanded that Pravin immediately take down and cease to use all of the items bearing the Quality trademarks. The complaint alleges that in May 2011, Pravin continued to use the Quality mark on its sign. Choice’s trademark attorneys have made claims of federal and Indiana trademark infringement, false designation of origin, and unfair competition and are seeking damages, injunction, punitive damages, costs and attorney fees.

Practice Tip: When a franchise agreement terminates, typically the franchisee must promptly cease using and return all signs and other equipment containing trademarks. Failure to do so may result in a lawsuit for breach of contract as well as trademark infringement

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Indianapolis, IN – Judge Tanya Walton Pratt of the Southern District of Indiana denied summary judgment on what would have disposed of a dispute over the intellectual property rights to tax software used by many Indiana county governments.Nikish Picture.jpg Nikish Software Corporation of Commack, New York had sued Manatron Incorporated of Portage, Michigan, alleging breach of contract regarding intellectual property rights to the software.

This dispute arose over rights to software and related services that have been provided to over 80 Indiana county governments by Manatron and similar software and services provided by Nikish to Indiana counties. Nikish and Manatron originally worked together to develop software systems for Dauphin County, Pennsylvania and Baltimore County, Maryland. At the completion of these projects, the two companies parted ways and signed a settlement agreement whereby Nikish agreed not to disclose or reproduce any of Manatron’s confidential or proprietary information, specifically Manatron’s tax software. Thereafter, Nikish began developing its own tax software to compete with Nikish. In 2006, Nikish marketed its software to Vigo County, Indiana. When Manatron discovered Nikish’s marketing efforts in Indiana, it sent a letter to 56 Indiana counties and the Indiana Department of Local Government Finance stating that Nikish’s software was “nothing more than a misappropriated derivative copy” of Manatron’s software. In 2007, Nikish brought the present lawsuit. Manatron counterclaimed alleging copyright infringement of its software, but the court denied the copyright infringement claim in a prior ruling.

The court’s most recent ruling denied summary judgment in favor of Manatron on the breach of contract claim, allowing that claim to go forward. Judge Pratt granted summary judgment denying Nikish’s tortuous interference with contract, tortuous interference of business relationships, and defamation claims. Following the summary judgment, the breach of contract claim would have gone to a jury for ultimate disposition. However, the parties reached a settlement. The court then dismissed the case on July 15, 2011, pursuant the stipulation and settlement of the parties.
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Washington, DC – A popular topic among patent lawyers across the country is the proposed “patent reform” legislation being debated and considered by members of the House of Representatives and the Senate. Wash DC.pngTitled the “Leahy-Smith America Invents Act,” the pending legislation in the House, H.R. 1249, passed by a 304-117 vote on June 23, 2011. A version in the Senate, S. 23, passed on March 8, 2011, by a vote of 95-5. The bill will go through the reconciliation process after Labor Day, and President Obama has indicated that he will sign the law.

“First-to-File” System

Notably, the proposed legislation would switch the United States from a “first-to-invent” to a “first-to-file” system. What this means is that, in order to gain patent protection for his or her invention, an inventor would have to be the first person to actually file a patent application claiming the invention. Under current law, through the “interference” process, an inventor may challenge an earlier-filed patent application by arguing that he or she had an invention date prior to the applicant’s filing date. Proponents of this change believe it would simplify the application process and bring U.S. patent law into harmony with the laws of all other countries, which already operate on the “first-to-file” system. Critics of the “first-to-file” system say that it disadvantages independent inventors, who often lack the resources to support early-stage patent filings for their inventions.

Post-Grant Review

The legislation would also add a new window for “post-grant review” following the issuance or re-issuance of a given patent. This procedure would allow a third-party to challenge the patent on a broader range of issues than is currently available via reexamination. A post-grant review petitioner would have to show that “it is more likely than not” that at least one of the claims challenged in the petition is unpatentable or establish that the case raises “a novel or unsettled legal question that is important to other patents or patent applications.”
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South Bend, IN – Trademark lawyers for Choice Hotels International, Inc. of Silver Spring, Maryland filed a trademark infringement suit in the Northern District of Indianaalleging SBQI, Inc. of South Bend, Indiana and eight Illinois individuals infringed trademark registration no. 0,886,881 for the mark QUALITY, which has been registered with the US Trademark Office.

Choice is a hotel franchise company that owns the numerous trademarks at issue in this suit. According to the complaint, SBQI, Inc. entered a franchise agreement to operate Choice franchise in South Bend, Indiana. As part of the franchise agreement, SBQI was granted license to use the QualityQuality.jpg mark on various items including: signs, stationary, lobby displays, and items in the hotel rooms. In November 2010, Choice sent SBQI a notice of default claiming SBQI had not paid franchise fees due under the contract. In December 2010, Choice sent SBQI a letter terminating the franchise agreement due to continued breach of the contract. The letter demanded that SBQI immediately take down and cease to use all of the items bearing the Quality trademarks. The complaint alleges that in May 2011, SBQI continued to use the Quality mark on its sign. Choice’s trademark attorneys have made claims of federal and Indiana trademark infringement, false designation of origin, and unfair competition and are seeking damages, injunction, punitive damages, costs and attorney fees.

Practice Tip: When a franchise agreement terminates, typically the franchisee must promptly cease using and return all signs and other equipment containing trademarks. Failure to do so may result in a lawsuit for breach of contract as well as trademark infringement.


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London, U.K. – The Guardian newspaper of London recently reported on the rash of BitTorrent lawsuits that have been filed in the United States. The Guardian reports on the claims of a blogger named TorrentFreak who has been vigorously tracking the BitTorrent lawsuits.graph-DoesSued-current.jpg Notably, TorrentFreak tracks that over 200,000 “John Does” have been named as defendants in BitTorrent-related copyright infringement lawsuits. According to these reports, a majority of the suits involve online music sharing.

TorrentFreak describes the BitTorrent-related copyright infringement lawsuits as “pay-up-or-else schemes” and describes the economics behind the suits. She notes “Copyright holders have embraced this new revenue stream by the dozen and new lawsuits are being filed every week.” The reports note that after the identity of the “John Doe” is disclosed through discovery on Internet Service Providers, the copyright holders contact the person and offer to settle for $2,500. Because most John Does prefer to pay the $2,500 rather than face legal costs and possible $150,000 fine, none of the cases have gone to trial.

Practice TipIndiana Intellectual Property Law News has been closely following the Bittorrent litigation recently Indiana, all of which so far involve adult entertainment file sharing, rather than music.  Our reports are available here:

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Evansville, IN – Through its patent attorneys, Mead Johnson Nutrition Co., of Glenview, Illinois, has filed a patent infringement lawsuit against Nestle S.A. of Switzerland; Nestle USA Inc. of Glendale,Thumbnail image for Thumbnail image for Thumbnail image for Patentphoto.jpg California; and Gerber Products Co. d/b/a/ Nestle Infant Nutrition of Florham Park, New Jersey. The complaint alleges infringement of U.S. Patent No. 7,040,500, which is titled “Container and Scoop Arrangement.” The ‘500 patent is directed to a container for housing granulated products which includes a recessed base and, for easy product removal, a circumferential channel capable of receiving a scoop.

The patent lawyers for the plaintiff Mead Johnson point to two Internet postings, both made in March of 2011, announcing Gerber’s EASYSCOOP™ plastic packaging and the new packaging to be used for Gerber’s GOOD START® infant formula. Alleging that the EASYSCOOP™Thumbnail image for Thumbnail image for Thumbnail image for Gerberogoto.jpg packaging is currently in commerce and directly infringes the ‘500 patent, the plaintiff also includes in its complaint counts claiming that the defendants have induced infringement by third-parties through offering the GOOD START® product in the EASYSCOOP™ container for sale, selling it, and advertising it to retailers and consumers. The plaintiff seeks a permanent injunction against the defendants as well as a tripling of damages based on alleged willful infringement.

Practice Tip:  U.S. patent law provides that making, using, selling, offering to sell, or importing a patented invention is direct patent infringement.  In addition, 35 U.S.C. § 271(b) provides that “[w]hoever actively induces infringement of a patent shall be liable as an infringer.”  Thus, a holder of a method patent could have an inducement claim against a product manufacturer if the patent is infringed by consumers using the manufacturer’s product.  Under the latest precedent of the Federal Circuit (the federal appeals court with jurisdiction over appeals from patent trials and Patent Office proceedings), the standard for inducing patent infringement requires a showing of actual knowledge of a patent or “willful blindness” to the existence of one.

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