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Indianapolis, IN – Trademark lawyers for Saeilo Enterprises, Inc. of Pearl River, New York filed a trademark infringement suit alleging Buzz Bee Toys, Inc. of Mt. Laurel, New Jersey infringed the following trademarks: Trademark Registration No. 2,885,628 for the mark TOMMY GUN filed with the US Trademark Office and Indiana State Registration No. 20090707-13956, Registration No. 20090707-13957, and Registration No. 20090707-13958 for the TOMMY GUN design marks filed with the Indiana Secretary of State.

Saeilo originally filed the lawsuit in Hamilton County Superior Court. Trademark attorneys for Buzz Bee, however, successfully moved to remove the case to federal district court, noting that federal court has jurisdiction due to the federal trademark claim and the diversity of the parties. According to the complaint filed by Saeilo, Buzz Bee offers for sale toy guns using the words “Tommy” on the packaging.

The complaint states that the infringing conduct occurred in Hamilton County, Indiana, but does not specify when or where. Saeilo has attached pictures of the toy gunsMECH Tommy 20.jpg and packaging that appear to be in store and being offered for sale. Pictures of the allegedly infringing toy guns are also online, but the complaint does not make reference to Buzz Bee’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: The complaint was signed by a lawyer at Continental Enterprises, which is an Indianapolis corporation that claims to “non-traditional strategies to combat infringers domestically and around the globe and provide effective solutions for seemingly intractable IP problems.” Continental Enterprises, however, has recently been the subject of highly critical press coverage. For example, one website accused the company of “using untrained staff to troll the internet for victims.”


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South Bend, IN – Copyright lawyers for Susan Lynch, of Indiana, Math-U-See Indiana, Inc. of Indiana, and Lisa and Jim Angle, of Idaho, filed a breach of contract and copyright infringement suit alleging Math-U-See, Inc. of Lancaster, Pennsylvania, and Steve and Ethan Demme infringed the works CALCULUS WORKS, RECORDED CALCULUS LESSONS, HONORS BOOKS, PRE-CALCULUS WORKS, ALGEBRA 2 AND QUIZ WORKS, and TEST BOOKLETS.

The complaint alleges that Steve Demme owns Math-U-See, Inc. and invented the Math-U-See curriculum for home schooling parents in the early 1990s. Steve Demme used a business model of having individual representatives and distributors to sell the Math-U-See curriculum. The plaintiffs were “Reps,” and Plaintiff Lisa Angle also wrote additional material for Math-U-See, which are the copyrighted works that the copyright infringement claim is based upon. The complaint alleges that Sue Lynch was the Rep for Indiana and Illinois beginning in 1996 and built sales to hundreds of thousands of dollars by 2009. Lisa and Jim Angle were Reps for Montana, North Dakota, Alabama, and Tennessee. The complaint alleges that in 2010 Steve Demme, with help of Ethan Demme, ended the representative business model and cut the plaintiffs out of selling the Math-U-See curriculum. Ms. Angle claims that the Defendants continued to use the copyrighted materials she created after the agreement was terminated and without Ms. Angle’s permission. The complaint makes claims of breach of contract, breach of good faith, breach of fiduciary duty, violation of Indiana Franchise Act, violation of Illinois Franchise Act, violation of the Idaho Unfair Trade Practices Act, violation of Illinois Unfair Trade Practices Act, violation of Tennessee Unfair Trade Practices Act, Violation of Law 75 of Puerto Rico, tortuous interference with contract, tortuous interference with prospective business relations, wrongful conversion of customer list, promissory estoppel, unjust enrichment/quantum meruit, accounting and six counts of copyright infringement. The plaintiffs seek actual and punitive damages, an injunction prohibiting further distribution of the copyrighted works, costs and attorney fees.

Practice Tip: In this case, Ms. Angle claims she is the author and rightful owner of the copyrights to the works described in the complaint.  She claims the defendants violated 17 U.S.C.  106 of the Copyright Act. Ms. Angle has not formally registered her copyrights with the US Copyright Office, however, this is not a necessity for her infringement claims to succeed.  Rather, the Copyright Act provides that “Copyright in a work protected under this title vests initially in the author or authors of the work.”


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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.

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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.”

Thumbnail image for picture.jpgSEB 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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 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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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

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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

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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.

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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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 Knauf picture.jpg

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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Contact Information
Indiana Intellectual Property: IP Litigation, Patents, Trademarks, Copyrights
  • Seventh Circuit
  • Northern District of Indiana
  • Southern District of Indiana
Paul B. Overhauser
Overhauser Law Offices, LLC
Greenfield
18 E Main St #202
Greenfield, IN 46140
Phone: 317.467.9100
Fax: 866.283.8549
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101 W Ohio St #2000
Indianapolis, IN 46204
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