Indiana Intellectual Property Law News

June 1, 2011

KZRV, L.P. Sues RV Wholesalers, LLC for Trademark Infringement of Travel Trailers

Fort Wayne, IN – Trademark lawyers for KZRV, L.P. of Shipshewana, Indiana filed a trademark infringement suit alleging RV Wholesalers, LLC of Lakeview, Ohio infringed Trademark Registration No. 3,183,731 for the mark SPREE registered with the US Trademark Office.

The complaint states that KZRV is a leading manufacturer of travel trailers and uses the SPREE trademark on some of the travel trailers it manufactures. KZRV alleges that on May 10, 2011, RV Wholesalers offered for sale on its website a travel trailer with the SPREE trademark without authorization from KZRV. KZRV asked RV Wholesalers to remove the item from their website, and RV Wholesalers refused. KZRV has made claims of trademark infringement, unfair competition, trademark dilution, common law unfair competition, and interference with business relationships. KZRV is seeking a preliminary injunction, a declaratory judgment, damages and costs.

Practice Tip: Accordingly KZRV’s website it uses a stylized form of SPREE with a large S and an arc in the upper right corner. According to the complaint, RV Wholesalers’ use of Spree is virtually identical. While it is possible that this is a case of a blatant infringement, it seems more likely that RV Wholesalers is simply selling authentic “Spree” RVs manufactured by KZRV. If this is the case, this may not be infringement, as the owner of a legitimate product generally has a right to refer to under its original trademark. Otherwise, if the person placing a classified ad to sell, for example, a used car, would be infringing the trademark of the car manufacturer if they identified the car by make and model.

This case has been assigned to Judge Joseph Van Bokkelen and Magistrate Judge Roger Cosbey in the Northern District of Indiana, and assigned Case No. 1:11-cv-00188-JVB-RBC.

May 31, 2011

U.S. Supreme Court Holds “Willful Blindness” Suffices for Induced Infringement Knowledge Requirement

By Overhauser Law Offices, LLC

Washington, D.C. – While unanimously agreeing that induced patent infringement liability requires knowledge that the induced acts will infringe one or more patents, the United States Supreme Court, in an 8-1 decision in the Global-Tech Appliances, Inc., v. SEB S.A. case, held that the knowledge requirement is met by “willful blindness.”

SEB S.A. is a French company specializing in home-cooking appliances. The inventor of a home-use deep fryer with external surfaces that remain cool during the frying process, SEB holds Patent No. 4,995,312, as issued by the U.S. Patent Office, for a Cooking Appliance with Electric Heating. Global-Tech Appliances, Inc. (now known as Global-Tech Advanced Innovations Inc.) is a British Virgin Islands corporation. Global-Tech subsidiary Pentalpha Enterprises, Ltd. supplied Sunbeam Products, Inc. (a U. S. competitor of SEB) with certain deep fryers having all but the cosmetic features of the patented SEB fryer. Shortly after agreeing to supply Sunbeam, Pentalpha retained an attorney to conduct a right-to-use analysis, but did not inform him that their product was based on the SEB product, and the attorney did not locate the ‘312 patent during prior art searching.

Previously in this case, a jury found that Pentalpha directly infringed the ‘312 patent and willfully induced others to infringe the patent. On an appellate challenge to the induced infringement judgment, the U.S. Court of Appeals for the Federal Circuit held that “deliberate indifference” of known risks is a form of actual knowledge and the evidence supported the conclusion that Pentalpha deliberately disregarded a known risk that SEB held a patent covering its deep fryer.
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May 31, 2011

Boston Scientific Corporation and Guidant Seeks Noninfringement Declaration of Heart Arrhythmia Treatment Patent

By Overhauser Law Offices, LLC

Indianapolis, IN – Patent lawyers for Boston Scientific Corporation of Natick, Massachusetts and its wholly-owned subsidiaries, Guidant LLC of Indianapolis, Indiana and Cardiac Pacemakers LLC of St. Paul, Minnesota, filed a lawsuit seeking a declaratory judgment that they have not infringed Patent No. 4,407,288, IMPLANTABLE HEART STIMULATOR AND STIMULATION METHOD, which has been issued by the US Patent Office. The patent lawsuit has been filed against Mirowski Family Ventures, LLC of the State of Maryland.
The patent in question is described as “a method of treating heart arrhythmia with a therapy referred to as ‘cardioversion’ administered by Implantable Cardioverter Defibrillator devices.” According to the complaint, Guidant obtained an exclusive license of the patent in question from Mirowski in 1973, which was renewed 2004. Pursuant the license agreement, Guidant was to pay a percentage of sales made based on the patented technology. In 2002, the Southern District of Indiana declared the ‘288 patent invalid in Cardiac Pacemaker, Inc. v. St. Jude Medical, Inc., No. IP 96-1718-C H/G (S.D. Ind.). This patent invalidity determination, however, was overturned by the Federal Circuit Court and then subject to further litigation, which concluded in 2010. Guidant and Mirowski had agreed to suspend payments on the license agreement while during this litigation, and Guidant, in its complaint, states that it has now paid what is due under the license agreement. According to the complaint, Mirowski has sent letters to Guidant accusing Guidant of breaching the license agreement and patent infringement. Boston Scientific and Guidant seek a declaratory judgment of noninfringement, a declaratory judgment of satisfaction of royalty obligation, and a declaratory judgment of no breach of contract.
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May 31, 2011

Indiana Patent Attorneys Obtain 107 Patents for Indiana Companies in May, 2011

By Overhauser Law Offices, LLC

Indiana patent attorneys obtained issuance of the following 107 patents from the US Patent Office to persons and businesses in Indiana in May, 2011:

	PAT. NO.	Title
1	D638,942	Bone plate fixation device
2	D638,940	Hood-blade assembly for a surgical instrument
3	D638,926	Fan assembly
4	D638,834	Tablet computer
5	D638,735	Bead
6	7,953,537	Algorithm for power drive speed control

May 31, 2011

156 Trademark Registrations Issued to Indiana Companies in May, 2011

By Overhauser Law Offices, LLC

The US Trademark Office issued the following 156 trademark registrations to persons and businesses in Indiana in May, 2011, based on applications filed by Indiana Trademark Attorneys:

	Reg. Number	Mark	Click to View
1	3,968,143	EDUCATION IN INSULATION	View
2	3,966,502	EASY LOCK	View
3	3,966,300	SKYPAVER	View
4	3,966,216	{Design}	View
5	3,966,089	LACES FOR LEARNING	View

May 24, 2011

Denise K. LaRue Sworn as New Magistrate for the Southern District of Indiana

By Overhauser Law Offices, LLC

Indianapolis – Denise K. LaRue, an Indianapolis attorney, was sworn in as the new magistrate judge for the Southern District of Indiana. Chief Judge Richard L. Young administered the oath of office to Ms. LaRue at the Birch Bayh federal building and courthouse in Indianapolis. A more formal ceremony will take place at a later date. Ms. LaRue takes office as the first to fill a newly created magistrate judgeship in the Southern District of Indiana.

Ms. LaRue formerly practiced at Haskins LaRue, an Indianapolis law firm specializing in employment issues. She was born in Indianapolis and graduated cum laude from Indiana University School of Law – Indianapolis. According to the court’s press release, most of her professional experience has been in the area of labor and employment litigation.

May 20, 2011

Hard Drive Productions, Inc. Sues 21 Indiana John Does for Copyright Infringement of Adult Entertainment Video Via BitTorrent

By Overhauser Law Offices, LLC

New Albany, IN – A Copyright lawyer for Hard Drive Productions, Inc. of Phoenix, Arizona filed a copyright infringement suit alleging 21 unnamed John Does who reside in Indiana infringed the copyrighted video work entitled AMATEUR ALLURE – ERIN which has been registered by the US Copyright Office.

Hard Drive Productions is an adult entertainment company that produced the video at issue. The complaint alleges that the 21 John Does have unlawfully reproduced and/or distributed the copyrighted video using the BitTorrent “distribution protocol”. The complaint states that Hard Drive has the Internet Protocol address (“IP address”) of these 21 individuals and will learn their identities during discovery. Hard Drive has made claims of copyright infringement and civil conspiracy. The complaint seeks an order impounding all copies of the video, damages, and litigation expenses.

This case has been assigned to Judge Sarah Evans Barkerand Magistrate Judge William G. Hussmann in the Southern District of Indiana, and assigned Case No. 4:11-cv-00059-SEB-WGH.

Practice Tip: As has been reported elsewhere, it appears the adult entertainment industry has adopted the copyright litigation strategy that the music industry used to halt online music sharing. Specifically, file sharing using the BitTorrent program is being targeted for litigation. According to one report, as of November 2010, over 16,000 anonymous BitTorrent users had been sued by the adult entertainment industry for illegally sharing copyrighted materials. Hard Drive Productions filed a similar lawsuit against 300 Illinois John Does late last year. Unlike the music industry copyright litigation, these individuals are likely to be greatly embarrassed when their identities are unveiled in the discovery phase of litigation.
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May 19, 2011

Knauf Insulation Limited and Knauf Insulation GMBH Sue Certainteed Corporation for Patent Infringement of Insulation Technology

By Overhauser Law Offices, LLC

Indianapolis, IN – Patent lawyers for Knauf Insulation Limited of St. Helens, Merseyside, United Kingdom and Knauf Insulation GMBH of Shelbyville, Indiana, filed a patent infringement suit alleging Certainteed Corporation of Valley Forge, Pennsylvania infringed Patent No. 7,854,980, FORMALDEHYDE-FREE MINERAL FIBRE INSULATION PRODUCT, which has been issued by the US Patent Office.

Patent attorneys for Knauf Insulation Limited filed a nearly identical lawsuit against Certainteed in February, which was reported on by Indiana Intellectual Property Law News. According to PACER records, in April Certainteed filed a motion to dismiss for lack of subject matter jurisdiction claiming that Knauf Insulation Limited did not own the asserted patent. Certainteed claimed that Knauf Insulation Limited had transferred all its interest in the patent to Knauf GMBH of Indiana. As of the date that the new lawsuit was filed, the court had not ruled on Certainteed’s motion to dismiss. In the new lawsuit that was filed by Knauf’s patent attorney on May 19, Knauf asserts essentially identical claims and adds Knauf Insulation GMBH of Shelbyville as a plaintiff.

This case has been assigned to Judge Sarah Evans Barker and Magistrate Judge Debra McVicker Lynch in the Southern District of Indiana, and assigned Case No. 1:11-CV-00680-SEB-DML.

Practice Tip: It appears that Knauf is seeking to move this controversy forward without waiting for the court to decide Certainteed’s motion to dismiss for lack of subject matter jurisdiction in the previously filed suit and any potential appeals of this decision. Knauf’s new complaint may be an attempt to fix the perceived problem with the previously filed suit. Knauf has alleged that the ongoing alleged infringement continues to cause it damages and is seeking an injunction. Knauf, therefore, appears to desire a speedy resolution on the merits of the infringement claim.
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May 18, 2011

Blue Pillar Relocates to Indianapolis, Joining Indy’s Fast Growing Software and Internet Sector

By Overhauser Law Offices, LLC

Indianapolis, IN – Blue Pillar Inc., currently headquartered in Atlanta, has announced that it is moving its headquarters to Indianapolis and plans to create 70 new jobs in the area. According to the Indianapolis Star, the jobs will have an average salary of $40/hour. Blue Pillar is a software company that develops software that helps manage energy use. The company expects to continue development of energy management software. According to the Indiana Business Journal, Blue Pillar’s clients include medical centers at several large university hospitals. The company will receive a grant from Develop Indy, an Indianapolis economic development project, to relocate.

Blue Pillar joins several other Indiana software and Internet companies that have recently announced new jobs in the industry. Slingshot SEO, the internet marketer on the Far Northside of Indianapolis, announced plans for expansion and 114 new jobs earlier this month. The Indianapolis Star reported that Slingshot SEO received $1.5 million in incentives from the Indiana Economic Development Corporation and a tax break from the City of Indianapolis. Also this month, the software development company DeveloperTown announced its project to create an incubator for start-up technology companies

The growing software and Internet sector will increase the need for Indiana intellectual property attorneys.

May 17, 2011

Noble Roman’s, Inc. Sues Findlay Tiffin Oil, LLC and Ayman Magdaddi for Trademark Infringement for Unauthorized Use of Trademark and Trade Dress

By Overhauser Law Offices, LLC

Indianapolis, IN – Trademark lawyers for Noble Roman’s, Inc. of Indianapolis, Indiana filed a trademark infringement suit alleging Findlay Tiffin Oil, LLC of Tipp City, Ohio and Ayman Magdaddi of Aurora, Indiana infringed Trademark Registration No. 987,069 for the mark NOBLE ROMAN’S; Trademark Registration No. 1,920,428 for the mark THE BETTER PIZZA PEOPLE; and Trademark Registration No. 1,682,308 for the mark NOBLE ROMAN’S PIZZA, which are registered with the US Trademark Office.

The complaint alleges that Findlay owns a convenience store located in Aurora, Indiana and Mr. Magdaddi operates the convenience store. The convenience store was owned by a company called Duncan Oil until February 2011, and Duncan Oil operated a Noble Roman’s franchise on-site that used various trademarked items and trade dress. The complaint alleges that Duncan Oil was an authorized franchise of Noble Roman’s until the property was sold in February 2011. Findlay and Magdaddi, however, have not reached an agreement to be authorized to operate a Noble Roman’s franchise. The complaint alleges that a Noble Roman’s employee visited the store in March 2011 and observed pizza being sold using the Noble Roman’s trade dress and menu boards. The complaint states that on April 30, 2011, Duncan Oil recovered all the Noble Roman’s trademarked items and trade dress. Noble Roman’s trademark attorneys have made claims of trademark infringement and federal unfair competition.

This case has been assigned to Judge Tanya Walton Pratt and Magistrate Judge Tim A. Baker in the Southern District of Indiana, and assigned Case No. 1:11-cv-00665-TWP-TAB.

Practice Tip: If a new owner of the franchise property wishes to continue operating the franchise, a new franchise agreement must be reached. If the new owner continues to use the franchise’s trademarked items and trade dress without authorization, a trademark infringement lawsuit may result. Noble Roman’s has been particularly aggressive in enforcing trademarks rights in franchise relationships.
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