Indiana Intellectual Property Law News

June 27, 2011

Williams Industries Inc. Sues Trevis Tumbler Company to Invalidate Trademark on Tumblers

Indianapolis, IN – Trademark lawyers for Williams Industries Inc. of Shelbyville, Indiana filed a trademark lawsuit in the Southern District of Indiana seeking to invalidate trademark registration no. 3,081,577 and trademark registration no. 2,862,871 for the mark TRITAN DOUBLE WALL TRUMBLER, which have been registered with the US Trademark Office and are owned by Trevis Tumbler Company of Venice, Florida.

The complaint states that Williams manufactures a line of plastic drinking tumbler, and that Williams has a business relationship with Hit Promotions, Inc. whereby Hit purchases and sells the Williams tumbler. Hit received a cease and desist letter from Tervis in June 2011, stating that Tervis owned the trademarks at issue and claiming that the Williams tumblers infringe the trademarks. In response, Hit stopped selling Williams’ tumbers. Williams claims the trademarked design is simply a “horizontal line” and similar designs have been used on plastic tumblers from various manufacturers for many years. Williams alleges that another company, Signature USA of Minnesota, has sold tumblers with the trademarked design for over 25 years. Williams is seeking a judgment invalidating and rendering unenforceable the ‘577 and ‘871 trademarks, claiming that Tervis made false statements in its trademark application regarding Tervis’s exclusive use of the “horizontal line” design and that the design is generic. Williams’ trademark attorneys have also made claims of tortuous interference with business relationship and common law unfair competition.

According to the Indianapolis Business Journal, Tervis’s tumbler business has grown to $75 million.

Practice Tip: The Lanham Act, 15 U.S.C. § 1119, does provide the federal courts with the power “to order the cancelation of registrations, in whole or in part, restore canceled registrations, and otherwise rectify the register with respect to the registrations of any party to the action. Decrees and orders shall be certified by the court to the Director, who shall make appropriate entry upon the records of the Patent and Trademark Office, and shall be controlled thereby.”

June 24, 2011

Patent Reform Passes U.S. House of Representatives

By Overhauser Law Offices, LLC

Washington, D.C. – The United States House of Representatives has passed H.R. 1249, the Leahy-Smith American Invents Act, which is said to be the most dramatic change to patent law since the 1950s. The Senate’s patent reform bill passed in March, and Indiana Intellectual Property Law News blogged about the bill here. Funding of the US Patent and Trademark Office was a continuous issue in the debate, and this issue will have to be addressed by the Senate before the bill can go to President Obama. The House and Senate will now conference to attempt to consolidate their bills, and additional votes may be needed before the reform goes to President Obama. The White House released a statement congratulating the House on the bill.

The vote was 304 in favor and 117 opposed. Indiana’s Representatives Buschon, Carson, Donnelly, Pence, Rokita, Stutzman, and Young voted in favor of the bill while Representatives Burton and Visclosky voted against the bill. A webcast of the hearing on this bill is available here.

Practice Tip: While many have praised this legislation, some patent attorneys expect that a great deal of litigation will be necessary in the coming years to flush out changes in the patent laws.

June 23, 2011

Bear Archery, Inc. Sues Impact Archery, Inc. for Patent Infringement of Bow Sight with Fiber Optics.

By Overhauser Law Offices, LLC

Evansville, IN – Patent lawyers for Bear Archery, Inc. of Evansville, Indiana, filed a patent infringement lawsuit alleging Impact Archery, Inc. of Alpharetta, Georgia, infringed Patent Nos. 7,159,325 and 7,343,686, both called, BOW SIGHT WITH FIBER OPTICS which has been issued by the US Patent Office.

Bear Archery owns the rights to the ‘325 and ‘686 patented bow sights. The Compliant alleges that Impact Archery “has manufactured and continues to manufacture, use, sell, offer to sell and distribute fiber optic sights which infringe certain claims of the Patents-In-Suit.” Bear Archery seeks a declaratory judgment, injunction, impounding order, damages, costs, and attorney’s fees.

This case has been assigned to Chief Judge Richard L. Young and Magistrate Judge William G. Hussmann in the Southern District Court, and assigned Case No. 3:11-cv-00079-RLY-WGH.

Practice Tip: Bear Archery has been aggressive in defending its patent rights, and appears to have been involved in about ten patent infringement lawsuits in the Southern District of Indiana since 2007.
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June 22, 2011

Update to Harvest Scents v. KMI Jury Trial: Settlement Reached Before Case Sent to Jury

By Overhauser Law Offices, LLC

Indianapolis, IN – In May, Indiana Intellectual Property Law News blogged about the jury trial in the copyright infringement case Harvest Scents v. KMI. The jury trial began on May 2, 2011 in the Southern District of Indiana and was presided over by Senior Judge Larry J. McKinney. According to PACER, on May 9^that the conclusion of the presentation of evidence on day six of the jury trial, the Court heard several additional motions. The plaintiff moved for a judgment as a matter of law, which Judge McKinney denied. At that point, rather than waiting for a jury verdict, the parties reached a settlement, and the jury was dismissed.

According to PACER, on June 22, 2011, the court approved a joint stipulation of the parties regarding settlement and dismissed the case with prejudice. The terms of the settlement appear to be confidential.

June 20, 2011

Indian Industries Seeks Non-Infringement Declaration over Tethered Ball Practice Device Patent Owned by Swingaway Sports Products

By Overhauser Law Offices, LLC

Evansville; IN – Patent lawyers for Indian Industries, Inc. of Evansville, Indiana filed a patent infringement lawsuit in the Southern District of Indiana seeking a declaratory judgment that it is not infringing Patent No. 5,795,250 Tethered ball practice device, which has been issued by the US Patent Office and is assigned to SwingAway Sports Products, Inc. of Lubbock, Texas

The complaint states that the patent lapsed in September, 2010 due to failure to pay the required maintenance fee. Indian Industries, doing business as Escalade Sports, learned of the lapse in November 2010 and began developing a product similar to the patented technology, which culminated in sales and marketing of a product called the Springer Trainer batting trainer. The complaint states Escalade Sports marketed the new product at a trade show on June 18, 2011. The owner of SwingAway observed the new product, approached Escalade employees and alleged that the new product infringed the ‘250 patent. On that date, SwingAway contacted the US Patent Office and paid the fee for the ‘250 patent. The complaint alleges that SwingAway partners with Mid-America Sports Advantage in Jasper, Indiana.

Practice Tip: Escalade Sports claims it is entitled to the defense of absolute intervening rights, 35 USC 41(c)(2). That provision does provided that anyone who begins using, manufacturing or selling a product using the patented technology during the period when the patent has lapsed will generally not be liable for patent infringement. The court, in such cases, may allow the person to continue utilizing the patented technology, even if the patent maintenance fee is then paid.

June 20, 2011

DIRECTV Sues Corner Bar & Grill For Copyright Infringement for Improper Interception Of NFL Games

By Overhauser Law Offices, LLC

Evansville, IN – Copyright lawyers for DIRECTV of California filed a copyright infringement lawsuit in the Southern District of Indiana alleging that Kevan Tally and Michael Schnell, owners of McGahery Enterprises, Inc., which operates the Corner Bar & Grill in Evansville, Indiana infringed copyrighted NFL games by illegal intercepted and unencrypted satellite signals.

The complaint alleges that on October 17, 2010, Mr. Schnell and Tally, displayed NFL games publicly at the Corner Bar and Grill without the authorization of DIRECTV. The complaint states that the Corner Bar did not have a paid DIRECTV subscription, yet received and unencrypted DIRECTV satellite signals in violation of the Cable Communications Act. DIRECTV claims the bar and its owners received financial benefit from the display of NFL games. DIRECTV is seeking statutory damages of $1000 to $10,000 for each violation and $10,000 to $100,000 for each willful violation as well as an injunction to prevent further display of illegal intercepted transmissions. Copyright attorneys for DIRECTV have also made a claim of civil conversion, alleging that the defendants intentionally and wrongfully deprived DIRECTV of proprietary interests.

Practice Tip: Most satellite signal providers employ encryption to limit reception to certain groups, such as paying subscribers. If an individual has a “residential” agreement with a satellite provider, this does not give them the right to display the performance in a public setting like a bar or restaurant. Both the satellite signal providers and the owners of the copyrighted content are typically quite aggressive about enforcing their copyrights.

June 17, 2011

Medical Monitoring and Paging LLC Sues Philips Electronics for Patent Infringement of System and Method for Automatic Critical Event Notification.

By Overhauser Law Offices, LLC

Indianapolis; IN – Patent lawyers for Medical Monitoring and Paging LLCof Newport, California filed a patent infringement lawsuit in the Southern District of Indiana alleging Philips Electronics North America Corporation of Andover, Massachusetts, Oridion Capnography, Inc. of Needham, Massachusetts, IWT Solutions, Inc. of Evansville, Indiana, and Oxford Biosignals, Inc. of Indianapolis,Indiana infringed Patent No. 5,942,986, System and method for automatic critical event notification, which has been issued by the US Patent Office.

The complaint alleges that each defendant manufactures, provides, sells, offers for sale, imports and/or distributes products and services that infringe the patent at issue, which is described as “a novel and clinically important critical event notification system that can continuously monitor patient statistics and lab data to detect complex critical events[.]” The complaint states that each defendant has developed and now sells its own system performing similar functions and that each defendant’s system infringes Medical Monitoring’s patent.

Practice Tip: The plaintiff here has alleged that each defendant separately developed and markets an infringing system. While two of the defendants are Indiana companies, the other two defendants are not located in Indiana, and the complaint does not state a basis for bringing the claims against them in the Indiana district court.

June 16, 2011

Coach Files Two Trademark and Copyright Infringement Lawsuits in Northern District Over Knock-Off Coach Items

By Overhauser Law Offices, LLC

South Bend; IN – Trademark and copyright lawyers for Coach, Inc. and Coach Services, Inc. of New York, New York filed two trademark infringement lawsuits in the Northern District of Indiana.

In the first lawsuit, intellectual property attorneys have alleged that Diva’s House of Style and Elizabeth “Beth” Bond of Elkhart, Indiana infringed fifty-one marks that have been registered with the US Trademark Office. The complaint also alleges that Diva’s House and Ms. Bond infringed the copyrighted works LEGACY STRIPE and SIGNATURE C, which have been registered by the US Copyright Office. The complaint alleges that Diva House and Ms. Bond have been designing, manufacturing, and/or selling “studied imitations” of Coach products that bear the Coach trade marks, trade dress and copyrighted works. Coach alleges that Diva House and Ms. Bond advertised the knock-off products on Facebook. A Coach representative used e-mail and phone to correspond with the defendants and purchased a purse from her. The representative then determined that the purse was not a genuine Coach purse and was a knock-off of inferior quality. The complaint makes claims of trademark counterfeiting, trademark infringement, trade dress infringement, false designation of origin and false advertising, trademark dilution, copyright infringement, common law trademark infringement, unfair competition, forgery and counterfeiting. This case has been assigned to Judge Jon E. DeGuilio and Magistrate Judge Christopher A. Nuechterlein in the Northern District of Indiana, and assigned Case No. 3:11-cv-00253-JD-CAN.

In the second lawsuit, intellectual property attorneys allege that Lyn-Maree’s LLC of Auburn, Indiana, and its owners, Emma Taylor and Lynn Siples, infringed fifty-one marks that have been registered with the US Trademark Office. The complaint also alleges that Lyn-Maree’s and its owners infringed the copyrighted works LEGACY STRIPE and SIGNATURE C, which have been registered by the US Copyright Office. The complaint states that a Coach representative purchased a hand bag, wallet and sunglasses labeled “Coach” at the Lyn Maree’s retail store. The items were examined by Coach and determined to be not genuine Coach items, but knock-off items of inferior quality. The complaint makes claims of trademark counterfeiting, trademark infringement, trade dress infringement, false designation of origin and false advertising, trademark dilution, copyright infringement, common law trademark infringement, unfair competition, forgery and counterfeiting.

Practice Tip: Coach has a reputation for vigorously defending their intellectual property. Coach filed two trademark lawsuits in the Northern District of Indiana in April of this year, which were reported on in Indiana Intellectual Property Law News. It seems that a Coach representative is monitoring businesses in the Northern District of Indiana and purchasing knock-off goods that then become the basis of these lawsuits.

June 15, 2011

Indiana Federal Court Rules EA Can Use “Dillinger” in Its Video Games

By Overhauser Law Offices, LLC

Indianapolis, IN – Intellectual property lawyers for Electronic Arts, Inc., (“EA”) of Redwood City, CA, emerged victorious when Judge Jane E. Magnus-Stinson of the Southern District of Indiana ruled that Indiana’s right of publicity statute and federal trademark law do not prevent EA from using the word “Dillinger” and other identifying characteristics of infamous depression-era bank-robber John Dillinger in its video games.

The plaintiff Dillinger, LLC, sued EA for allegedly including unauthorized references to John Dillinger in its series of video games based upon The Godfather novel and film series. In its complaint, among other things, Dillinger, LLC, claimed that it registered two U.S. trademarks for “John Dillinger” and that, under Indiana law, it had the right to control Mr. Dillinger’s “personality” rights for commercial purposes – that is, his “name, voice, signature, photograph, image, likeness, distinctive appearance, gestures, [and] mannerisms.” Dillinger, LLC, alleged to have acquired those publicity rights by assignment from the heirs of Mr. Dillinger.

Concluding that Indiana’s right of publicity law, which took effect in 1994, is not retroactive and does not apply to personalities who died before its enactment, the court found that the plaintiff failed to state a right of publicity claim. Moreover, Judge Magnus-Stinson opined that “literary works” exception in the Indiana statute should be read broadly in light of the First Amendment and cover video games.

In a separate order ruling on cross-motions for summary judgment, the court accepted EA’s First Amendment defense to its use of the John Dillinger name, finding such use has at least some relevance to the plot of the game and was not “explicitly misleading” with regard to the question of endorsement by Dillinger, LLC.

Practice Tip: The right of publicity is grounded in state law, and Indiana has an expansive right of publicity statute. Indiana law provides recognition of the right for 100 years after death and protects not only name, image and likeness, but also signature, photograph, gestures, distinctive appearances, and mannerisms.

The matter was assigned Case No. 1:09-cv-01236-JMS-DKL.
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June 14, 2011

Heartland Recreational Vehicles LLC Sues Forest River Inc. for Patent Infringement of Travel Trailer Turning Radius

By Overhauser Law Offices, LLC

South Bend, IN – Patent lawyers for Heartland Recreational Vehicles, LLC of Elkhart, Indiana 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.

Both Heartland and Forest River sell travel trailers in Elkhart, Indiana. The ‘545 patent was issued to Heartland on February 1, 2011. The complaint alleges that Forest River is making, using, selling or offering for sale travel trailers, specifically the Silverback product, that infringe Heartland’s patent. Heartland seeks a declaration of infringement, an injunction, damages, treble damages, attorney’s fees and costs.

This case has been assigned to Judge Jon E. DeGuilio and Magistrate Judge Christopher A. Nuechterlein in the Northern District of Indiana, and assigned Case No. 3:11-cv-00250-JD –CAN.

Practice Tip: The Patent Act, 35 U.S.C. 287(a), does not allow a patent holder to collect damages from an infringer unless the patentee has given notice of the patent, normally by affixing the patent number on the product or packaging. In this case, the patent was issued only five months ago so there may be an issue about whether Forest River had notice. The Patent Act, 35 U.S.C. 287(a), however, provides that the filing of a patent infringement lawsuit constitutes the required notice.
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