Indiana Intellectual Property Law News

July 28, 2011

Another Update to Hard Drive v. 21 Indiana John Does: Attorney Files Motion to Dismiss, Court May Strike Anonymous Letters

Indianapolis, IN – There have been further updates to the Hard Drive Productions case in the Southern District of Indianathat Intellectual Property Law News has been closely following. The Hard Drive case is one of three similar copyright infringement lawsuits in the Southern District of Indiana all involving file sharing of adult entertainment videos via BitTorrent. The other two are the Boy Racer case and the First Time Videos case.

In one development, an attorney has filed a motion to dismiss and motion to quash subpoena on behalf of one of the John Does, who remains unnamed but has his or her I.P. address listed on the motion. The motion to dismiss argues that the Court does not have personal jurisdiction since the John Doe does not live in or have sufficient contacts with Indiana and that the defendants have been misjoined since none of the controversies arise out of the same facts or occurrences. The motion also argues that a subpoena that has been served on internet service provider Comcast requesting the name and identifying information for this John Doe is unduly burdensome.

In another development, the Court has ordered the authors of the anonymous letters, subject of an Intellectual Property Law News blog last month, to appear before the court and show cause why their letters should not be stricken from the record. If the authors do not appear by September 9, the Court will strike their letters from the case docket.

July 26, 2011

Saeilo Enterprises Sues Scottwerx in Hamilton County for Trademark Infringement of Tommy Gun Mark: Case Removed to Federal Court

By Overhauser Law Offices, LLC

Indianapolis, IN – A trademark infringement lawsuit filed in Hamilton County, Indiana Superior Court was removed to Southern District of Indiana. Trademark lawyers for Saeilo Enterprises, Inc. of Pearl River, New York had filed a trademark infringement lawsuit in the Hamilton County Superior Court alleging Scottwerx LLC of LaCrescenta, California infringed trademark registration no.2,885,628 for the mark TOMMY GUN which has been registered with the US Trademark Office.

The complaint alleges that Scottwerx has manufactured, produced and sold replica firearm kits that bear Saeilo’s registered trademarks without authorization from Saeilo. The complaint has attached a picture from Scottwerx’s website of the allegedly infringing product. The complaint alleges Indiana courts have jurisdiction because Scottwerx offers the product for sale in Indiana. However, the complaint does not mention any specific sales in Indiana and only refers to Scottwerx’s website. Saeilo’s complaint asserts claims of federal trademark infringement, federal trademark dilution, false designation of origin, false advertising, trade dress infringement, common law trademark infringement, unfair competition, conversion, forgery, counterfeiting, and deception. The complaint seeks a permanent injunction, damages, treble damages, profits, attorney’s fees and costs.

Practice Tip: Last month, Saeilo filed a very similar trademark infringement lawsuit in Hamilton County that was also removed to federal court. Indiana Intellectual Property Law News blogged about that case here. That case alleged that Buzz Bee Toys infringed the same trademarks that are at issue in this lawsuit. According to PACER, trademark attorneys have reached a settlement in the Buzz Bee case. The terms of the settlement are undisclosed.

July 15, 2011

Eli Lilly Company Sues APP Pharmaceuticals LLC for Patent Infringement of Chemotherapy Drug

By Overhauser Law Offices, LLC

Indianapolis, IN – Patent lawyers for Eli Lilly Company of Indianapolis, Indiana filed a patent infringement judgment suit in the Southern District of Indiana alleging APP Pharmaceuticals LLC of Schaumburg, Illinois infringed patent no.7,772,209 , Antifolate combination therapies, which has been issued by the US Patent Office.

The complaint states that APP has filed an abbreviated new drug application with the Food and Drug Administration seeking to sell a generic version of the drug ALIMTA, which is patented by Lilly, prior to the expiration of the patent. Lilly alleges that APP will begin to market and sell the generic drug. ALIMTA is a chemotherapy drug used to treat mesothelioma and other lung cancers. Lilly’s patent attorneys contend that the marketing and sale of APP’s generic version will infringe Lilly’s patent. The complaint alleges two counts of patent infringement and seeks a judgment of infringement, injunction, costs and attorney’s fees.

Practice Tip: This case has been filed before APP actually marketed or sold any of the infringing product. Rather, Lilly appears to have become concerned about infringement due to the new abbreviated new drug application and notice that APP provided to Lilly. It is common for a patent infringement lawsuit, seeking an injunction and declaratory judgment, to be filed after a new abbreviated new drug application is filed with the Food and Drug Administration. The Patent Act, 35 U.S.C. § 283, allows a court with jurisdiction to grant an injunction “to prevent the violation of any right secured by patent, on such terms as the court deems reasonable.”

July 15, 2011

Broadcast Music, Inc. et al Sues Bertee’s Inc. et al for Copyright Infringement of Musical Composition

By Overhauser Law Offices, LLC

Indianapolis, IN – Copyright lawyers for Broadcast Music Inc. (“BMI”) of New York, New York and fifteen music publishing companies filed a copyright infringement suit in the Southern District of Indianaalleging Bertee’s Inc. d/b/a Bertee’s Sports Café and Kelly D. Kendrick of Fortville, Indiana infringed eight copyrighted songs that have been registered by the US Copyright Office.

The complaint states that BMI is the exclusive license holder of the eight copyrighted songs at issue and that the other plaintiffs are the owners of the copyrights. The complaint alleges that the eight songs were performed at the Bertee’s Sports Café in Fortville on December 18, 2010 without authorization. The eight songs at issues are: Givin’ It Up For Your Love by Jerry Williams, Good Times by Nile Rogers, Jessie’s Girl by Rick Springfield, On the Dark Side by John Caffery, Kryptonite by Bradley Kirk Arnold, Tennessee by Arrested Development, Wherever You Go by Alex Brand and Name by John Rzeznik. Copyright attorneys are seeking an injunction, damages, costs and attorneys fees.

Practice Tip: In this case, the plaintiffs have sued Kelly Kendrick, the owner of Bertee’s Sports Cafe personally. 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.

July 14, 2011

BMI Sues Diamond Investments Inc. D/B/A The Juke Box Live for Copyright Infringement of Eight Songs

By Overhauser Law Offices, LLC

Indianapolis, IN – Copyright lawyers for Broadcast Music, Inc. (“BMI”) of New York, New York and fourteen music publishing companies filed a copyright infringement suit in the Southern District of Indianaalleging Diamond Investments Inc. d/b/a The Juke Box Live , and Salvatore T. Mazza of Franklin, Indiana infringed eight copyrighted songs that have been registered by the US Copyright Office.

The complaint states that BMI is the exclusive license holder of the eight copyrighted songs at issue and that the other plaintiffs are the owners of the copyrights. The complaint alleges that the eight songs were performed at the Juke Box Live in Franklin on March 19 and 20, 2011 without authorization. The eight songs at issues are: Every Rose Has Its Thorn by Brett Michaels, Family Tradition by Hank Williams, Jr., Keep Your Hands to Your Self by Dan Baird, Lady Down on Love by Randy Owens, Baby Got Back by Anthony L. Ray, Courtesy of The Red, White and Blue by Toby Keith Covel, Play Something Country by Terry McBride, and Gunpowder and Lead by Miranda Lambert. Copyright attorneys are seeking an injunction, damages, costs and attorneys fees.

Practice Tip: In this case, BMI is the exclusive licensor to rights to play the songs listed. Unless a proper license is received, a bar or other establishment plays or allows a band to play music that has been registered with the US Copyright Office may commit copyright infringement. These types of cases are very friendly to the intellectual property owner, and a plaintiff is entitled to attorney’s fees from the defendant.

July 7, 2011

Update: Righthaven Controversial Copyright Infringement Case Dismissed, Countersued for Legal Fees

By Overhauser Law Offices, LLC

Las Vegas, NV — In May, Indiana Intellectual Property Law News reported on Righthaven, LLC, a controversial company that claims to enforce copyrights online. One of the cases Righthaven pursued has recently been in the news again and illustrates the risk of pursuing copyright lawsuits that are not well founded. Righthaven filed a copyright infringement against attorney Thomas DiBiase, a former federal prosecutor. Righthaven claimed DiBiase committed copyright infringement when he posted a news story from the Las Vegas Review-Journal on his blog No Body Murder Blog. In late June, U.S. District Court Judge Roger Hunt of the District of Nevada dismissed the case for lack of standing. It seems that Righthaven did not fully own the copyrighted work and therefore had no standing to sue.

In early July, Mr. DiBiase countersued for $119,000 in legal fees, as reported by Vegasinc.com. Other defendants who have succeeded in getting Righthaven lawsuits dismissed have already been awarded attorneys fees totally over $35,000. As Vegasinc.com reports, many of the early Righthaven lawsuits were settled, but the defendants who have fought the suits have largely won on either standing or under the fair use doctrine.

Practice Tip: The case illustrates the very real risk that Righthaven faced in filing its copyright infringement cases – that it would be forced to pay the attorney fees of those who successfully defended their cases. It also underscores the importance of having an experienced intellectual property attorney who will take an aggressive defense

July 6, 2011

Century 21 Real Estate LLC Sues Destiny Real Estate Properties LLC for Trademark Infringement of Service Mark

By Overhauser Law Offices, LLC

South Bend, IN – Trademark lawyers for Century 21 Real Estate LLC Parsippany, New Jersey filed a trademark infringement lawsuit in the Northern District of Indiana alleging Destiny Real Estate Properties LLC, f/d/b/a Century 21 Destiny Real Estate of Lowell, Indiana and Daniel Sutton, the owner of Destiny Real Estate Properties LLC, infringed Century 21’s trademarks and service marks.

According to the complaint, Destiny was a Century 21 real estate sales franchise beginning in June 2007. Century 21 alleges that Destiny failed to make payments of franchise fees in the amount of approximately $113,000 due under the franchise agreement, and as a result Century 21 terminated the franchise agreement on March 18, 2011. Century 21’s trademark attorneys allege that Destiny continued to use the Century 21 marks following the termination of the franchise agreement, including online at www.century21destiny.com. The complaint makes claims of trademark infringement, false designation of origin/false advertising, trademark dilution, common law unfair competition, breach of contract, unjust enrichment, and for an accounting.

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.

June 30, 2011

Indiana Patent Attorneys Obtain 125 Patents for Indiana Companies in June, 2011

By Overhauser Law Offices, LLC

Indiana patent attorneys obtained issuance of the following 125 patents from the US Patent Office to persons and businesses in Indiana in June, 2011:

	PAT. NO.	Title
1	D640,771	Firefighting nozzle
2	D640,754	Rocker propelled scooter
3	D640,556	Dispensing closure
4	7,969,654	Volume Fresnel zone plates fabricated by laser direct writing
5	7,969,275	Fuse assembly with integrated current sensing

June 30, 2011

169 Trademark Registrations Issued to Indiana Companies in June, 2011

By Overhauser Law Offices, LLC

The US Trademark Office issued the following 169 trademark registrations to persons and businesses in Indiana in June, 2011, based on applications filed by Indiana Trademark Attorneys:

	Reg. Number	Mark	Click to View
1	3,985,899	FOILMASTIC	VIEW
2	3,985,847	{Detail}	VIEW
3	3,985,606	AERO-FLEX	VIEW
4	3,985,421	MEAT SEEKER	VIEW
5	3,985,320	KWIKPEN	VIEW

June 30, 2011

Update to Hard Drive Productions BitTorrent Copyright Infringement Case: John Doe Letters Ask Court Not to Allow Discovery

By Overhauser Law Offices, LLC

Indianapolis, IN – Several anonymous letters have been sent to the Southern District of Indiana regarding the Hard Drive Productions Copyright infringement case, all opposing any discovery attempts in the case that might reveal the identities of persons alleged to have illegally downloaded pornographic videos. Intellectual Property Law News has reported recently on three copyright infringement lawsuits filed in the Southern District of Indiana involving file sharing of adult entertainment videos via BitTorrent: the Hard Drive Productions case, the Boy Racer case and the First Time Videos case.

In an unusual procedural move, three anonymous letters, signed “John Doe,” were sent to the Court to protest the lawsuit and pre-emptively attack potential discovery efforts by the plaintiff that might reveal the identities of the “John Does,” who are accused of illegally sharing adult videos using BitTorrent. The first letter calls the case “wrongful harassment of internet subscribers” and states “Mr. Steele and lawyers attempting to the same scheme of intimidation will eventually be in contact with me to demand several thousand dollars not to sue ME for downloading this pornography file if Your court permits subpoena[.]” It points out the ease at which I.P. addresses could be forged and that wireless internet service can be used by a person other than the owner of the I.P. address, a concern that has been reported in Time Magazine.

A second letter points out to the court that in another similar case, discovery requests were denied by the Central District Court of Illinois and the Northern District of California. One court order attached to the letter says “The infringer might be the subscriber, someone in the subscriber’s household, a visitor with her laptop, a neighbor, or someone parked on the street at any given moment.”

Hard Drive filed a response to one of the letters, stating: “The Court is fully capable of protecting each defendant’s due process rights and ascertaining the quality of evidence presented at this proceeding. The anonymous letter expresses fear to the contrary, but these fears are not a good justification for curtailing discovery of the identities of those who have conspired to pirate copyrighted material.”

Practice Tips: We note the letters were sent from anonymous “John Does.” Had the writers identified themselves, they would have opened themselves to service of process and risked giving up several defenses including personal jurisdiction, which is an issue raised by one letter.