Indiana Intellectual Property Law News

December 22, 2020

Aftermarket UTV Products at Issue in Patent Infringement Case

New Albany, Indiana –Sandcraft, LLC dba Sandcraft Motorsports (“Sandcraft”), the Plaintiff designs, manufactures, and sells aftermarket parts for Utility Terrain Vehicles (“UTV”). Apparently one such part is a “CARRIER BEARING ASSEMBLY” protected by United States Patent No. 10,471,825 (the “‘825 Patent”), which was assigned to Sandcraft. Sandcraft claims it makes and sells carrier bearings products that embody and use the inventions claimed in the ‘825 Patent bearing the patent number (the “Sandcraft Products”).

According to the Complaint, Super ATV, LLC dba SuperATV, the Defendant, makes, imports, and/or sells carrier bearings products that allegedly infringe the ‘825 Patent (the “Accused Products”). Sandcraft claims SuperATV monitors the UTV market and the intellectual property of its competitors and therefore had actual notice of or was willfully blind to the existence of the ‘825 Patent since at least May 14, 2018, the date the patent application published. Further, Sandcraft claims SuperATV had actual notice of the ‘825 Patent at least as of February 26, 2020 based on correspondence sent to SuperATV’s counsel. Therefore, Sandcraft is seeking damages for patent infringement in violation of 35 U.S.C. § 271 pursuant to 35 U.S.C. §§ 154(d) and 284. Continue reading

December 18, 2020

Declaratory Judgment Sought Against Dog Trainer Donna Chandler

By Overhauser Law Offices, LLC

Indianapolis, Indiana – According to the Complaint, Donna Chandler (“Chandler”), one of the Defendants and owner of Co-Defendant, Show Colors, Inc. (“Show Colors”), is the author of a canine training book called “Good Dog!” Apparently, Chandler along with Plaintiffs, Kevin DeTrude (“DeTrude”) and Content & Commerce, Inc. (“Content” and collectively “Plaintiffs”), are members of nominal defendant, My K9 Behaves LLC (“My K9”). Content is allegedly in the business of website development and marketing and is owned by Keneth Zweigel (“Zweigel”). Per the Complaint, Chandler, DeTrude, and Zweigel began working on an online instruction course based upon two books written by Chandler (the “Online Class”) in January 2016. The parties apparently also discussed converting the text-based course to a video format.

Two videos were allegedly recorded and paid for by DeTrude in 2016 with a script for a third video written around February 2017. It appears Chandler, Content, and DeTrude officially formed their business on April 4, 2017, but the parties did not execute an Operating Agreement for the business until mid-June 2017, which included clauses assigning all common law and registered trademark and copyrights, including Chandler’s books and the publishing rights to My K9 (the “Assigned Rights”). Upon dissolution or the termination of Chandler’s ownership in My K9, the Assigned Rights would allegedly revert back to Chandler. According to the Complaint, shortly after the Operating Agreement was executed, a third video was recorded and paid for by Zweigel.

As My K9 was experiencing apparent success, the company entered into a Publishing Agreement for a third book to be written by Chandler with the rights assigned to My K9. Allegedly due to the length of time spent writing the book, the first Publishing Agreement was revoked, and a Second Publishing Agreement was put in place. The Plaintiffs claim Chandler then began demanding a greater portion of the profits and ultimately decided if the rights to the third book were not in her name only, she simply would not publish the third book. Chandler then apparently informed DeTrude and Content that she was withdrawing her membership in My K9 and demanded they cease and desist using her name or likeness and re-assign the Assigned Rights back to her.

DeTrude and Content are seeking a declaratory judgment of copyright and trademark ownership “including any derivative or original intellectual property created by or on behalf of My K9. Further, to the extent the Plaintiffs own any of the copyrighted works, they allege Chandler and Show Colors have infringed those works by profiting off the sale of the works individually and not for the benefit of My K9. To the extent Plaintiffs own any trademarks, they are similarly claiming trademark infringement. Plaintiffs have also brought derivative and direct claims for breach of fiduciary duty, usurpation of corporate opportunities, theft and conversion pursuant to I.C. § 35-43-4-3. Finally, Plaintiffs are claiming breach of contract for Defendants’ alleged breach of the Operating Agreement.

December 17, 2020

Patent Office Issues 168 Patents to Indiana Citizens in November 2020

By Overhauser Law Offices, LLC

The U.S. Patent Office issued the following 168 patent registrations to persons and businesses in Indiana in August 2020, based on applications filed by Indiana patent attorneys:

	Patent No.	Title
1	PP032,493	Hybrid tea rose plant named `WEKyoopedko`
2	D0903,224	Cremation Urn
3	D0903,183	Lighting sconce
4	D0903,182	Pendent lighting sconce
5	D0903,105	Component for a drug delivery device

December 9, 2020

Vera Bradley Sues Dollar Tree for Alleged Copyright Infringement

By Overhauser Law Offices, LLC

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).