Indiana Intellectual Property Law News

September 3, 2011

Trademark Processing Time At Record Low, According to New USPTO Dashboard

Washington, D.C. – The United States Patent and Trademark Office has launched a new web tool that shows that trademark application processing times are down to record lows. The average pendency to a first action on a new application is down to 2.7 months, while total pendency — defined as the average time from filing to registration, abandonment or notice of allowance — is at approximately 10.2 months. The USPTO’s Data Visualization Center provides the most recent statistics. Online applications utilizing Trademark Electronic Application System plus (“TEAS plus”) are processed fastest on average. Over 70% of trademark applications are now filed electronically, the website reveals.

The USPTO offers a similar dashboard for patent processing times. The average total time a patent application takes to process is 33.5 months, according to the site. These tools are part of USPTO’s efforts to provide better visibility into trademark and patent application processes. The dashboards will be updated quarterly.

September 2, 2011

Indiana Patent Attorneys Obtain 182 Patents for Indiana Companies in August, 2011

By Overhauser Law Offices, LLC

Indiana patent attorneys obtained issuance of the following 182 patents from the US Patent Office to persons and businesses in Indiana in August, 2011:

	PAT. NO.	TITLE
1	D644,146	Race car
2	8,010,455	Waste processing system and method
3	8,008,487	Substituted thieno[2,3-D]pyrimidines as fungicides
4	8,008,466	Use of untranslated region of osmotin gene to enhance transgene expression in plants
5	8,008,458	Fatty acid phenolic conjugates

September 1, 2011

Allison Transmission Inc. Sues Defeo Manufacturing Inc. for Trademark Infringement Over Transmission Speed Sensors and Parts

By Overhauser Law Offices, LLC

Indianapolis, IN – Trademark lawyers for Allison Transmission Inc. of Indianapolis, Indiana filed a trademark infringement suit in alleging Defeo Manufacturing, Inc. of Brookfield, Connecticut infringed various ALLISON TRANSMISSION trademarks, including registration nos. 2,866,798, 2,625,008, 1,666,977, 1,624,473 , 3,821,442and 2,678,354; along with registration no. 2,615,428 for the ALLISON ELECTRIC DRIVES, all registered with US Trademark Office.

According to the complaint, Defeo manufactures and supplies replacement parts for Allison transmissions, including aftermarket, refurbished, and used parts. The complaint states that Allison is not associated with Defeo in any way. Allison alleges that Defeo “has a history of deceiving the public as to sponsorship, affiliation, or endorsement of its products by Allison.” In 2009, Allison became aware that Defeo’s website falsely claimed its products met all Allison’s quality standards. After Allison demanded the false advertising be removed, the website claims were taken down. Subsequently, however, Allison became aware that Defeo was responsible for the unauthorized manufacturing of transmission turbine speed sensors that bore the Allison trademarks without authorization. Allison alleges these speed sensors are counterfeit products, and though the products are not authorized by Allison, are advertised as “genuine Allison” products. The complaint makes claims of counterfeiting, federal trademark infringement, false designation of origin, false advertising, Indiana common law unfair competition, common law trademark infringement and seeks seizure of all “counterfeit” products and advertising, an injunction, profits, actual damages, punitive damages, costs and attorney fees.

This is at least the fifth suit filed by Allison since 2009 against a seller of replacement parts for Allison’s products.

Practice Tip: Allison Transmission’s trademark attorneys do not allege any specific infringing sales in Indiana by Defeo Manufacturing. Instead they only said that Defeo “does business in . . . has caused harm in . . and the conduct . . . complained of . . . has occurred in this judicial district.” However, the Complaint only identifies a website maintained by Defeo used to offer allegedly infringing products. This case has been assigned to Judge Sarah Evans Barker, who in similar cases, has refused to find specific personal jurisdiction based on merely maintaining an interactive website not “specifically directed” toward Indiana. To improve the chances of obtaining personal jurisdiction, it is advisable to make at least one purchase of an allegedly infringing product and have it shipped to the jurisdiction where the suit is to be filed.It is also curious that Allison alleges infringement of Federal Registration No. 2,615,428, since this registration was cancelled long ago.
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August 31, 2011

ASSET PURCHASE AGREEMENT TRANSFERRING TRADEMARK CANNOT BE WITHHELD IN TRADEMARK INFRINGEMENT SUIT

By Overhauser Law Offices, LLC

This case involves companies who each use the trademark BRANDT for selling agricultural equipment, but in different geographic areas. Trademark attorneys for Pitonyak Machinery Corporation claimed it acquired rights to the trademark BRANDT when it purchased several businesses in 2002 from a Brandt family in Carlisle, Arkansas. During discovery, Pitonyak produced to lawyers for Brandt Industries, Ltd (the opposite party), the Asset Purchase Agreement but redacted (or blocked out) the purchase price, arguing it was not relevant. Brandt Industries filed a Motion to Compel Production of a non-redacted Version.

August 31, 2011

164 Trademark Registrations Issued to Indiana Companies in August, 2011

By Overhauser Law Offices, LLC

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	Click to View
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

August 30, 2011

Hill-Rom Services, Inc. Sues Stryker Corporation for Patent Infringement of Hospital Bed Systems, Case Transferred to Southern District of Indiana

By Overhauser Law Offices, LLC

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.jpg Communication 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.

August 29, 2011

AFC Enterprises, Inc., Popeye’s Chicken Sue Christopher Payne, LP&P Foods, and 10 John Does for Trademark Infringement of Popeye’s Mark in Indianapolis Restaurant

By Overhauser Law Offices, LLC

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, 1107575 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 46^th 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 46^th 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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August 26, 2011

Seventh Circuit Affirms That “Quilted” Toilet Paper Design Is Functional, Not Protected By Trademark

By Overhauser Law Offices, LLC

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 patents 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.”

August 25, 2011

Choice Hotels Sues Shreya Pravin LLC for Trademark Infringement of QUALITY Mark at Lebanon, Indiana Hotel

By Overhauser Law Offices, LLC

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 Quality 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

August 24, 2011

Breach of Contract Claim Over Intellectual Property Rights to Software For County Governments Survives Summary Judgment in Nikish Software Corp. v. Manatron Inc.

By Overhauser Law Offices, LLC

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 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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