Indiana Intellectual Property Law News

February 15, 2021

Makers of SPLENDA® Sue Speedway for Alleged Trade Dress Infringement

Indianapolis, Indiana – Apparently Heartland Consumer Products LLC (“Heartland”), the Plaintiff, is the owner of the SPLENDA® brand sugar substitute sweetener, which comes in yellow packaging (the “Yellow Trade Dress”). According to the Complaint, Heartland has also used a variety of legally protected trademarks in connection with its SPLENDA® brand products.

In addition to its U.S. trademarks, and common law rights to the Yellow Trade Dress, Heartland also claims to have obtained trademark registrations for the SPLENDA® intellectual property in over 90 countries.

Heartland claims Speedway, LLC (“Speedway”), the Defendant, has “engaged in the active deception of customers through misappropriation of the Yellow Trade Dress in a manner that makes Speedway’s yellow sucralose packets easily mistakable for SPLENDA®’s yellow packets. Per the Complaint, Speedway failed “to provide sufficient cues to the consumer that the yellow sweetener packets in Speedway stores are not the leading brand sucralose-based sweetener sold by Heartland.” Therefore, Heartland claims Speedway’s actions are likely to deceive consumers into believing its sweetener provided in yellow packets is SPLENDA®.

Due to Speedway’s use of yellow packaging for sucralose, Heartland claims it has committed trade dress infringement, trademark dilution, false designation of origin, unfair competition, and false advertising pursuant to the Lanham Act, 15 U.S.C. § 1125. Heartland is seeking enhanced damages and attorneys’ fees under 15 U.S.C. § 1117 because it claims “Speedway’s actions are intentional, willful, and calculated to cause confusion, mistake or deception.” Further, Heartland is claiming common law trade dress infringement under Ind. Code § 24-2-1-15. Next, Heartland is claiming common law unfair competition. Finally, Heartland is claiming trademark dilution under Ind. Code § 24-2-1-13.5.

February 12, 2021

152 Trademark Registrations Issued to Indiana Companies in January 2021

By Overhauser Law Offices, LLC

The U.S. Trademark Office issued the following 152 trademark registrations to persons and businesses in Indiana in January 2021 based on applications filed by Indiana trademark attorneys:

	Reg. Number	Word Mark
1	6257028	SUNRISE DRUM
2	6256982	THE TUBE
3	6256782	E
4	6256766	SOFABSOAPS
5	6256731	ENPOM

February 10, 2021

Delta Faucet Files Another Patent Infringement Suit

By Overhauser Law Offices, LLC

Indianapolis, Indiana – According to the Complaint, Delta Faucet Company (“Delta”), the Plaintiff, is a corporation involved in the business of manufacturing innovative faucets. Delta claims it owns two patents relating to “Magnetic Coupling[s] for Sprayheads,” United States Patent No. 10,669,702 and United States Patent No. 10,724,217 (collectively the “Delta Patents”). Further, Delta claims it launched products featuring the MagnaTite® Docking, protected by the Delta Patents, in 2007.

Delta claims Globe Union Industrial Corp., Gerber Plumbing Fixtures LLC and Danze, Inc. (the “Defendants”) manufacture, distribute, and/or offer magnetic docking faucets for sale. The allegedly infringing products feature “DockForce® magnetic docking technology” (the “Accused Products”). Delta claims the Accused Products infringe the Delta Patents and are seeking judgment that at least one claim of each of the Delta Patents has been infringed under 35 U.S.C. §§ 271(a) and (b). Further, Delta is seeking an injunction under 35 U.S.C. § 283 and damages pursuant to 35 U.S.C. § 284.

February 1, 2021

Southern District of Indiana’s Dismissal of Patent Infringement Case Affirmed

By Overhauser Law Offices, LLC

Indianapolis, Indiana – The U.S. Court of Appeals for the Federal Circuit affirmed the dismissal of a suit originally filed by Tenstreet, LLC (“Tenstreet”) in the Southern District of Indiana. In the original suit, Tenstreet alleged that Defendant DriverReach, LLC (“DriverReach”), infringed its rights in United States Patent No. 8,145,575 (the “‘575 Patent”) for “Peer to Peer Sharing of Job Applicant Information.”

According to the District Court Order, Tenstreet developed a product called the Xchange™, which encompasses the ‘575 Patent that facilitated job applicant verification between past and prospective commercial truck driver employers. The product also apparently allows the applicant to review and correct information before it is sent to their prospective employer. Tenstreet claimed that DriverReach infringed the ‘575 Patent by selling an employment verification product, VOE Plus Solutions. DriverReach moved to dismiss the complaint on the ground that the ’575 Patent claims ineligible subject matter under 35 U.S.C. § 101, an abstract idea.

To analyze whether a patent claims an abstract idea, the court uses a two-step framework. First, it asks whether the claims at issue are directed to a patent-ineligible concept. If yes, the second step is to “search for an ‘inventive concept’” that ensures “that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.” Alice Corp. Pty. Ltd. v. CLS Bank Int’l., 573 U.S. 208, 217 (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 72-73).

In this case, the Court found the invention claimed “nothing more than an abstract idea implemented on a computer.” After finding the claims directed to an abstract idea the Court proceeded to step two of the framework and found “no sufficient inventive technology to transform the abstract idea of collecting, organizing, and storing data on a generic computer into a patent-eligible application.” Therefore, the Court granted DriverReach’s Motion to Dismiss for failure to state a claim upon which relief can be granted and the Federal Circuit affirmed.

DriverReach has filed a motion seeking to recover $700,000 in attorney’s fees, claiming that this case is exceptional.

Practice Tip: According to 35 U.S.C. § 101, patentable subject matter is “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” However, the Supreme Court has held that “this provision contains an important implicit exception [:] Laws of nature, natural phenomena, and abstract ideas are not patentable.” Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013) (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 70 (2012). Continue reading

January 27, 2021

Delta Faucet Sues Kohler Co. for Alleged Patent Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Apparently, Alfred C. Nelson invented a magnetic coupling for sprayheads for his employer, Delta Faucet Company (“Delta”), the Plaintiff. Delta claims it now owns three patents covering Mr. Nelson’s invention, US. Patent Nos. 7,753,079, 10,669,702 and 10,724,217 (collectively the “Delta Patents”). Further, Delta claims it has produced kitchen faucets using MagnaTite® Docking and MagneDock® Technology that are protected by the Delta Patents.

According to the Corrected Complaint, Kohler Co., the Defendant, manufactures and offers for sale products having a “DockNetik® magnetic docking system that allegedly infringe the Delta Patents. The allegedly infringing products include the Motif™ kitchen faucet. Delta is seeking an injunction, damages, and attorneys’ fees for patent infringement. Continue reading

January 26, 2021

Patent Office Issues 191 Patents to Indiana Citizens in December 2020

By Overhauser Law Offices, LLC

The U.S. Patent Office issued the following 191 patent registrations to persons and businesses in Indiana in December 2020, based on applications filed by Indiana patent attorneys:

1	D0906,093	Trim
2	D0905,975	Hexagon picture display panel
3	10,880,330	Systems and methods for detection of infected websites
4	10,879,388	Methods of reducing the electrical and thermal resistance of SiC substrates and device made thereby
5	10,879,283	Energy harvesting configurable image sensor

January 20, 2021

Fort Wayne Based Club Sued for Alleged False Endorsement

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – Apparently, Amanda Cerny, Arianny Celeste Lopez, Abigail Ratchford, Alana Marie Souza, Tiffany Toth Gray, and Katarina Van Derham (collectively the “Plaintiffs”), are all professional models. Plaintiffs claim Defendants, B&B Operations, LLC, B&K Property Holdings LLC, and B&B Property Holdings, LLC, collectively doing business as Club 44 have used the Plaintiffs’ images to promote their strip club business. According to the Complaint, Club 44 has used the Plaintiffs’ images on its social media sites to advertise its business.

Plaintiffs claim that Club 44 used their images without consent, authorization, or payment. Further, even if Club 44 had offered to pay the Plaintiffs for the use of their images, Plaintiffs claim they would have refused to avoid harming their reputations and brands. According to the Complaint, by using Plaintiffs’ images on their social media accounts, “Defendants convey and reasonably suggest, falsely and fraudulently, that Plaintiffs endorse the Club, are affiliated with the Club, participated in the Club, sponsor the Club, or agreed to advertise for the Club.”

Plaintiffs are seeking damages for violations of the Lanham Act including false endorsement, unfair competition, and false advertising. Further, Plaintiffs claim their right of publicity pursuant to Ind. Code § 32-36-1-0.2 et seq., was violated. Finally, Plaintiffs assert Club 44 was unjustly enriched by the use of Plaintiffs’ images.

At last three of the Plaintiffs, Ratchford, Souza, and Toth Gray are involved in other similar suits that were recently filed in Indiana. Continue reading

January 15, 2021

Delta Faucet Files Patent Infringement Suit Against New Jersey Company

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Apparently Delta Faucet Company (“Delta”), the Plaintiff, employs a number of engineers to improve upon products within the plumbing industry including kitchen faucets. One of those engineers invented a “Magnetic Coupling for Sprayheads,” which is protected by U.S. Patent Nos. 10,669,702 and 10,724,217 (the “Patents At Issue”). This invention apparently provides for a simple and durable coupling between a pull-down sprayhead and the spout of a kitchen faucet.

Delta claims Defendant, As America, Inc. has infringed the Patents In Suit with its “Dock-Tite™ spray-head docking system.” Delta is seeking judgment pursuant to 35 U.S.C. §§ 271(a) and (b), an injunction pursuant to 35 U.S.C. § 283, treble damages under 35 U.S.C. § 284, and attorneys’ fees pursuant to 35 U.S.C. § 285.

January 13, 2021

Indiana Litigation: Showgirls I and III Sued for Alleged False Advertising

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – Apparently, the Plaintiffs in this case, Jessica Burciaga, Jessica Hinton, Jamie Eason Middleton, Lucy Pinder, Abigail Ratchford, Emily Scott, Denise Trlica, and Sara Underwood, are professional models. The Plaintiffs claim B&S Fort Wayne, Inc., Showgirl III, Inc. and Reba Enterprises LLC (collectively “Defendants”) doing business as Showgirl I and Showgirl III, have used their images and likeness to promote their strip clubs without permission of the Plaintiffs.

According to the Complaint, the Defendants’ use of the Plaintiffs’ pictures in connection with their strip clubs violates the Plaintiffs’ rights and violates the Lanham Act, 15 U.S.C. § 1125(a), for false endorsement, unfair competition, and/or false advertising. Further, the Plaintiffs allege the Defendants have violated their right of publicity pursuant to Ind. Code § 32-36-1-0.2 et seq. Finally, the Plaintiffs claim the Defendants have been unjustly enriched by promoting their businesses using the Plaintiffs’ images and likeness.

At least two of the Plaintiffs in this case, Hinton and Pinder, are involved in a similar lawsuit in the Southern District of Indiana.

January 11, 2021

The Trustees of Purdue University Sue for Alleged Trademark Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – The Trustees of Purdue University (“Purdue”), the Plaintiff, claims to own a number of registered and common law trademarks relating to Purdue University and its mascot (the “Trademarks”). According to the Complaint, Defendants, Vintage Brand, LLC and Sportswear Inc., sell Purdue-branded products utilizing the Trademarks without authorization or a license from Purdue. Purdue seeks declaratory judgment that Purdue owns and enjoys common law rights in the Trademarks and that Purdue’s rights are superior to the Defendants’ claim of any rights. Further, Purdue is seeking judgment against the Defendants for trademark infringement pursuant to 15 U.S.C. § 1114. Finally, Purdue is suing for common law passing off/unfair competition and trademark infringement.

Purdue University’s Registered Trademarks