Indiana Intellectual Property Law News

December 9, 2020

Vera Bradley Sues Dollar Tree for Alleged Copyright Infringement

Indianapolis, Indiana – Vera Bradley Designs, Inc. (“Vera Bradley”) the Plaintiff, claims to have more than 1,100 copyright registrations for its unique fabric designs, 17 of which are at issue in this case (the “Vera Bradley Works”). Vera Bradley claims to sell eyeglasses, sunglasses, and cases bearing the Vera Bradley Works.

According to the Complaint, Dollar Tree Stores, Inc. (“Dollar Tree”) and Greenbrier International, Inc. (“Greenbrier”), the Defendants, sell eyeglasses and related accessories that allegedly infringe the Vera Bradley Works. Vera Bradley claims after it sent a cease and desist letter to Dollar Tree, Dollar Tree stated it was unable to remove the alleged infringing products from its stores. Further, Vera Bradley claims Greenbrier sourced and/or imported the alleged infringing products.

Vera Bradley is claiming copyright infringement against both Defendants and vicarious and contributory copyright infringement against Greenbrier pursuant to 17 U.S.C. § 501. Vera Bradley further claims Dollar Tree participated in unfair and deceptive trade practices in violation of I.C. § 24-5-0.5-03.

December 8, 2020

137 Trademark Registrations Issued to Indiana Companies in November 2020

By Overhauser Law Offices, LLC

The U.S. Trademark Office issued the following 137 trademark registrations to persons and businesses in Indiana in November 2020 based on applications filed by Indiana trademark attorneys:.

Registration No.	Word Mark
6207829	THERMAL TO-GO MUG
6191031	TUFF LINQ
6205773	ATLAS SPECIALIZED TRANSPORTATION
6205640	OMNISEPT
6205535	P PURIZEE

December 3, 2020

Automotive Market Valuation Company Sued for Alleged Trademark Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Apparently, ADESA, Inc. and its wholly owned subsidiary Autoniq, LLC, the Plaintiffs, are in the business of remarketing vehicles through the internet and at auction. ADESA claims to be the owner of U.S. Trademark Registration Nos. 1,783,137, 2,504,410, and 2,930,226 (the “ADESA Marks”). Autoniq claims to own U.S. Trademark Registration No. 4,502,642 (the “Autoniq Mark”).

According to the Complaint, Laser Appraiser, LLC, the Defendant, is in the business of providing used car dealership management software to wholesalers and dealerships via a mobile and desktop application. ADESA claims Laser Appraiser previously licensed the use of certain data (“Run Lists”), marks, and logos from ADESA pursuant to a License Agreement. The License Agreement was apparently terminated on or about December 31, 2018. However, ADESA claims Laser Appraiser continued to display current Run Lists it either misappropriated or illegitimately procured from third parties. When ADESA discovered this use, it claims it requested for Laser Appraiser to remove the allegedly infringing marks and Run Lists from its website.

Autoniq claims Laser Appraiser purchased online keyword search advertisements on Google that resulted in sponsored ads that used the Autoniq Mark without Autoniq’s permission. It further claims that Laser Appraiser posted a comparison post on its webpage between the two companies that contained allegedly false statements. Therefore, Autoniq sent a cease and desist letter to Laser Appraiser for its alleged use of the Autoniq Mark.

Plaintiffs are seeking damages for federal trademark infringement, unfair competition, false designation of origin, and false advertising under the Lanham Act (15 U.S.C. §§ 1117 and 1125). Further, Plaintiffs are claiming Laser Appraiser committed common law unfair competition and violated Indiana’s Crime Victim’s Relief Act (I.C. § 35-24-3-1 et seq.).

November 30, 2020

Floyds Knob Based Company Sued for Alleged Patent Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Somero Enterprises, Inc. (“Somero”), the Plaintiff, claims to be a pioneer in the development and manufacturing of laser-guided concrete screeding machines. According to the Complaint, Somero has a portfolio of 63 patents including the patent at issue, United States Patent No. 8,038,366 (the “‘366 Patent”). Somero claims Ligchine International Corporation (“Ligchine”), the Defendant, offers a product called the “SpiderScreed” that allegedly infringes the ‘366 Patent.

Per the Complaint, Somero sent a letter to Ligchine on July 30, 2020 accusing Ligchine of infringing the ‘366 Patent by manufacturing and selling the SpiderScreed product. Somero claims the SpiderScreed infringes at least claims 1-5 of the ‘366 Patent and Ligchine has not ceased the manufacture and sale of the SpiderScreed. Therefore, Somero is seeking damages and attorneys’ fees for patent infringement pursuant to 35 U.S.C. §§ 271 and 285.

November 25, 2020

Netflix’s Attempt to Remove Lawsuit Thwarted

By Overhauser Law Offices, LLC

Indianapolis, Indiana –Plaintiffs, City of Fishers, Indiana, City of Indianapolis, Indiana, City of Evansville, Indiana, and City of Valparaiso, Indiana, on behalf of themselves and all others similarly situated filed suit on September 4, 2020 in Marion Superior Court (Case No. 49D01-2008-PL-026436) alleging that Defendants, Netflix, Inc., Disney DTC LLC, Hulu, LLC, Directv LLC, Dish Network Corp., and Dish Network LLC, violated the Indiana Video Service Franchises Act Ind. Code. § 8-1-34-1 et seq. Plaintiffs are seeking an order declaring Defendants provide video service in Indiana and to require Defendants to perform statutory duties including compensating Plaintiffs and all other units of government for unpaid fees for past service.

Defendant, Netflix, filed a Notice of Removal on September 9, 2020 from Marion County Superior Court 1 to the United Stated District Court for the Southern District of Indiana. Netflix asserted jurisdiction in the Southern District due to diversity jurisdiction and jurisdiction under the Class Action Fairness Act of 2005 (“CAFA”). Netflix noted that since Plaintiffs filed their Complaint in this case, three more cases have been filed against Netflix and Hulu alleging similar violations of various state video franchise acts in Texas, Ohio, and Nevada.

Following the Notice of Removal, the Plaintiffs filed a Motion to Remand the case under the doctrine of comity. In the Southern District’s Order, the Court explained, “[t]he comity doctrine encourages federal courts to avoid ‘interfer[ing] . . . with the fiscal operations of the state governments . . . in all cases where the Federal rights of the persons could otherwise be preserved unimpaired.’ Levin v. Commerce Energy, Inc., 560 U.S. 413, 422 (2010).” Therefore, the case was remanded back to Marion Superior Court.

Practice Tip: Removal of a putative class action under the CAFA is proper if: 1) there is a class action; 2) there is minimal diversity between the parties, such that at least one class member is a citizen of a state different from the state of any defendant; and 3) the aggregate amount in controversy exceeds $5,000,000, exclusive of interest and costs. See 28 U.S.C. § 1332(d)(2).

November 24, 2020

Dancers Showclub Sued in US Southern District for Alleged Violations of Right of Publicity

By Overhauser Law Offices, LLC

Indianapolis, Indiana – According to the Complaint, Plaintiffs, Jennifer Archuletta, Gemma Lee Farrell, Jesse Golden, Hillary Hepner, Jessa Hinton, Joanna Krupa, Gia McCool, Alana Campos Souza, Irina Voronina, and Lucy Pinder, are all professional models. Apparently, M E R Corporation d/b/a Dancers Showclub (“Showclub”), the Defendant, is a strip club located in Indianapolis, Indiana.

The Plaintiffs claim Showclub misappropriated the Plaintiffs’ photos, images, and likenesses in advertising materials to promote Showclub on social media without their consent or a license. By using the Plaintiffs’ photos, Plaintiffs claim Showclub falsely indicated the parties are associated and that the Plaintiffs endorse Showclub. Therefore, Plaintiffs are seeking damages for false endorsement, unfair competition, and/or false advertising in violation of the Lanham Act, 15 U.S.C. § 1125(a)(1), violations of the Plaintiffs’ right of publicity pursuant to I.C. § 32-36-1, et seq., and unjust enrichment.

November 23, 2020

Joe Hand Files Another Copyright Infringement and Piracy Lawsuit

By Overhauser Law Offices, LLC

Indianapolis, New Albany Division, Indiana – Joe Hand Promotions, Inc. (“Joe Hand’), the Plaintiff, claims to specialize in licensing premier sporting events to commercial establishments including bars, restaurants, and other similar locations. Those premier sporting events apparently included the Floyd Mayweather, Jr. vs. Conor McGregor boxing match on August 26, 2017 (the “Program”) that was purportedly registered under U.S. Copyright No. PA 2-006-333. According to the Complaint, Defendants, Lena Marie Smith and Main Street Bar N Grill, LLC (“Defendants”), avoided paying the proper commercial licensing fees and publicly exhibited the Program at their establishment.

This case is extremely similar to the numerous lawsuits Joe Hand has filed previously. Like most of those cases, Joe Hand is seeking damages for satellite piracy (47 U.S.C. § 605), cable piracy (47 U.S.C. § 553), and copyright infringement (17 U.S.C. § 505).

November 20, 2020

Winegard Sued for Alleged Patent Infringement of RV Antenna

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – According to the Complaint, Magnadyne Corporation (“Magnadyne”), the Plaintiff, and Winegard Company (“Winegard”), the Defendant, are competitors in the recreational vehicle market. Magnadyne claims to have filed a patent application titled “Combination External Vehicle Antenna Housing and Installation Method” on April 2, 2018. Apparently that application published on October 4, 2018 as US2018/0287250A1 (the “‘250 Publication”). The day after the ‘250 Publication was published, Magnadyne claims it provided a copy to Winegard via one of Winegard’s subsidiaries, WiFi Ranger. Thereafter on April 14, 2020, Magnadyne’s patent was issued as United States Patent No. 10,622,709 (the “‘709 Patent”).

Magnadyne claims to have notified Winegard and WiFi Ranger of the ‘709 Patent the day it issued via written communications. Since then, Magnadyne claims Winegard has continued to sell an alleged infringing product, the Air 360+, among other products accused of infringement. Per the Complaint, the sale, manufacture, and use of the Air 360+ directly infringes at least claim 1 of the ‘709 Patent. Magnadyne claims to have suffered damages for direct infringement, contributory infringement, and induced infringement of the ‘709 Patent. Therefore, Magnadyne is seeking a reasonable royalty, compensatory damages, attorneys’ fees, and costs.

November 19, 2020

Gangnam Korean BBQ Sued for Alleged Piracy and Copyright Infringement

By Overhauser Law Offices, LLC

Evansville, Indiana – Joe Hand Promotions, Inc. (“Joe Hand”), a frequent Plaintiff in the federal courts of Indiana, apparently specializes in licensing premier sporting events to bars, restaurants, and similar venues. According to the Complaint, Joe Hand had an agreement with the owner of U.S. Copyright PA-002-0660333 to commercially distribute the Floyd Mayweather, Jr. vs. Conor McGregor boxing match (the “Program”) on August 26, 2017.

Per the Complaint, the Defendants, Joseph J. Kim, Sarah Ying AI Kim, and Genesis Business Systems, LLC d/b/a Gangnam Korean BBQ, exhibited the Program to the public without paying for a commercial license through Joe Hand. As such, Joe Hand is seeking damages for satellite and cable piracy pursuant to 47 U.S.C. §§ 605 and 553, respectively, and copyright infringement pursuant to 17 U.S.C. § 505.

November 18, 2020

Frost Buddy, LLC Sued for Alleged Trade Dress Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Apparently Brumate, LLC (“Brumate”), the Plaintiff, designs and sells insulated beverage containers, including an insulated tumbler/can holder, the HOPSULATOR®, and an insulated wine bottle, the WINESULATOR®. Brumate claims to have acquired trade dress rights in its HOPSULATOR® product design (“HOPSULATOR Trade Dress”). According to the Complaint, Frost Buddy, LLC (“Frost Buddy”), the Defendant, is selling a knockoff product that incorporates the HOPSULATOR Trade Dress. Brumate also claims Frost Buddy has engaged in deceptive advertising with regard to Brumate’s HOPSULATOR® and WINESULATOR® products.

Brumate is seeking damages for trade dress infringement, false advertising, and unfair competition pursuant to 15 U.S.C. § 1125(a). Further, Brumate claims Frost Buddy committed deception in violation of I.C. § 35-43-5-3 and unfair competition under Indiana common law.