Indiana Intellectual Property Law News

October 27, 2020

Trademark Infringement Case Transferred to Northern District of Indiana

Hammond, Indiana – Modern Vascular LLC (“Modern Vascular”), the Plaintiff, originally filed suit against Defendants, Modern Vascular & Vein Center, Nazar Golewale and Jane Doe Golewale, in the U.S. District Court for the District of Arizona. In granting the Defendants’ Motion to Dismiss for lack of personal jurisdiction, the case was transferred to the Northern District of Indiana.

According to the Complaint, Modern Vascular has used its mark “MODERN VASCULAR” since 2017, which is registered under U.S. Trademark No. 5,570,334 (the “Registered Mark”). Modern Vascular claims the Defendants have advertised services, entered into agreements, and caused confusion with third parties using its Registered Mark. Due to the alleged continued use of the Registered Mark by the Defendants after being informed of the alleged infringement, Modern Vascular is seeking damages for willful trademark infringement, federal unfair competition, and false designation of origin.

October 23, 2020

U.S. Supreme Court Rules “Generic.com” Trademarks May be Trademarkable

By Overhauser Law Offices, LLC

Washington, D.C.– A travel-reservation website, Booking.com, filed federal trademark applications for a number of marks including the term “Booking.com.” After being examined, the U.S. Patent and Trademark Office (“USPTO”) refused registration for the mark on the grounds it was a generic name for online reservation services.

However, the District Court, the Fourth Circuit, and the U.S. Supreme Court all found “Booking.com” should be granted registration even though the term “booking” on its own would be generic. The Courts reasoned that because only one entity can occupy an internet domain name at one time, consumers could associate a term styled as “generic.com” with a particular website and source of services.

While the USPTO also argued that allowing trademark protection for “Booking.com” could inhibit competitors from using the term “booking,” the Supreme Court cited multiple doctrines that guard against anticompetitive effects. Those doctrines ensure that a registration for terms such as “Booking.com” would not give the registrant a monopoly on the term “booking.” Therefore, the Supreme Court declined to rule in a manner “that would largely disallow registration of ‘generic.com’ terms and open the door to cancellation of scores of currently registered marks.”

October 21, 2020

Photographer Sues for Alleged Copyright Infringement of Kid Rock Photo

By Overhauser Law Offices, LLC

Indianapolis, Indiana –According to the Complaint, Larry G. Philpot (“Philpot”), the Plaintiff, is a well-known photographer of musicians. Philpot claims to have taken a photo of a well-known musician, Kid Rock, during one of Kid Rock’s concerts. After taking the photo, Philpot apparently applied for and obtained U.S. Copyright Registration No. VAu 1-182-727 for the photo (the “Registered Photo”).

Philpot claims COTR, LLC d/b/a Chicks on the Right of Indianapolis (“COTR”) copied and published the Registered Photo on its website. While Philpot claims to have discovered the alleged infringement on or after July 26, 2017, the post was apparently removed at some point after December 21, 2017. However, per the Complaint, Philpot’s counsel sent a formal infringement notice to COTR on July 6, 2020, prior to the filing of the Complaint. Philpot is seeking damages for copyright infringement pursuant to 17 U.S.C. §§ 504 and 505.

October 19, 2020

Tankless Water Heaters at Heart of Trademark Dispute

By Overhauser Law Offices, LLC

Northern District of Indiana –Apparently, EZ Tankless, Inc. (“EZ Tankless”), the Plaintiff, sells water heaters throughout the world. EZ Tankless also claims to own the trademark for EZ TANKLESS under U.S. Registration No. 5,502,206 (the “Registered Mark”), which has been used in connection with its tankless water heaters since July 2009. According to the Complaint, Noritz America Corporation (“Noritz”), the Defendant, “is one of the world’s largest manufacturers of gas-fired baths and hot water heaters.”

EZ Tankless claims Noritz adopted a confusingly similar mark to the Registered Mark and has been using that mark in connection with Noritz’s EZ Series tankless water heaters since April 2017. Per the Complaint, Noritz applied for and was granted registration for its trademark EZ SERIES under U.S. Registration No. 5,731,024 in connection, in relevant part, with tankless water heaters. Noritz was also apparently granted a trademark registration for EZTR under U.S. Registration No. 4,800,941 with a date of first use on October 31, 2014.

According to the Complaint, EZ Tankless contacted Noritz on multiple occasions through counsel to request Noritz cease use of the EZ related marks. However, Noritz apparently continued to use the marks. Therefore, EZ Tankless is seeking damages for trademark infringement pursuant to the Lanham Act, common law trademark infringement, and common law unfair competition. Additionally, EZ Tankless is seeking to cancel both the EZ SERIES and EZTR marks as it contends they were granted registration based on false representations.

October 12, 2020

Patent Office Issues 212 Patents To Indiana Citizens in September 2020

By Overhauser Law Offices, LLC

Overhauser Law Offices, the publisher of this site, assists with US and foreign patent searches, patent applications and assists with enforcing patents via infringement litigation and licensing.

The U.S. Patent Office issued the following 212 patent registrations to persons and businesses in Indiana in September 2020, based on applications filed by Indiana patent attorneys:

	Patent No.	Title
1	D0897285	Charger
2	D0897245	Flex receiver hitch
3	10,791,383	Draft beer supply chain systems and methods
4	10,790,766	Dynamic energy harvesting and variable harvesting force system
5	10,790,441	Spin-transfer-torque synthetic anti-ferromagnetic switching device

October 9, 2020

218 Trademark Registrations Issued to Indiana Companies in September 2020

By Overhauser Law Offices, LLC

The U.S. Trademark Office issued the following 218 trademark registrations to persons and businesses in Indiana in September 2020 based on applications filed by Indiana trademark attorneys:

Reg. Number	Word Mark
6164786	EMPOWER THE WORLD. ONE MIND AT A TIME
6171463	PIGTEK
6169511
6171692	UNITED STATES WRESTLING ASSOCIATION
6169018	LINCOLN FINANCIAL FIELD

October 8, 2020

Indiana-Based Paul’s Marine, Inc. Sued for Alleged Trademark Infringement

By Overhauser Law Offices, LLC

South Bend, Indiana – Float-On Corporation (“Float-On”), the Plaintiff, claims to sell unique, high quality immersible boat trailers throughout the United States and in several other countries. According to the Complaint, Float-On has used the registered and incontestable mark FLOAT-ON® (the “Registered Mark”), covered by U.S. Reg. No. 885,333, to identify its boat trailers for over fifty years. Float-On further claims it has expended large amounts of money in advertising its products bearing the Registered Mark.Per the Complaint, Paul’s Marine, Inc. d/b/a PMI Marine Distributors and Paul E. Myers, Jr., the Defendants, copied the Registered Mark and have adopted a confusingly similar mark for boat trailers – FLOTE-ON. Float-On claims the Defendants intentional and willful selling of their products with the alleged infringing mark has caused actual consumer confusion in the marketplace. Float-On is seeking damages for federal trademark infringement, unfair competition, false designation of origin, and counterfeiting pursuant to the Lanham Act among several common law claims.

October 7, 2020

Great Grizzly Sues Winco Fireworks for Alleged Trademark Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Great Grizzly, Inc. (“Grizzly”), Plaintiff, claims to have sold and imported fireworks in Indiana for over 50 years. In addition, Grizzly claims to have several federal trademarks including the one at issue in this case assigned Registration No. 2,329,220 for “PREDATOR” (the “Registered Mark”).

Grizzly alleges the Defendants, Winco Fireworks, Inc. and Winco Fireworks International, LLC (the “Winco Defendants”) offer and sell fireworks throughout the United States. According to the Complaint, the Winco Defendants have sold fireworks that infringe the Registered Mark and have failed to desist their infringement after being informed of the Registered Mark. Therefore, Grizzly is seeking damages for trademark infringement, trademark dilution, false designation of origin, and unfair competition under the Lanham Act, 15 U.S.C. §§ 1051, et seq. and state common law. Grizzly is also claiming the Winco Defendants violated Indiana Code § 24-5-0.5-3(b)(1) for deceptive consumer practices and committed tortious interference with a business relationship under the common law.

October 5, 2020

Eli Lilly Declaratory Judgment Suit Transferred to North Carolina

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Eli Lilly and Company (“Lilly”) filed suit on November 13, 2019 in the Southern District of Indiana against Defendant SensorRx seeking a declaratory judgment that it had not misappropriated trade secrets among other things. SensorRx in turn, on November 22, 2019 filed a lawsuit in the Western District of North Carolina seeking injunctive relief and monetary damages. SensorRx then filed a Motion to Dismiss or to Transfer Lilly’s declaratory action suit to North Carolina.

The Southern District found Lilly’s declaratory action was an “improper anticipatory filing” as there was a clear threat of litigation prior to the filing of the declaratory action. As such, the Court declined to exercise its discretion to hear the declaratory judgment action. The Court further found that the balance of factors under 28 U.S.C. § 1404(a) weighed in favor of transferring the action to the Western District of North Carolina where SensorRx filed its suit. Therefore, SensorRx’s Motion to Transfer was granted and the case was transferred to the Western District of North Carolina. Continue reading

September 30, 2020

Church Hymn at Issue in Copyright Infringement Suit

By Overhauser Law Offices, LLC

South Bend, Indiana – Vincent Ambrosetti (“Ambrosetti”), the Plaintiff, is apparently the author and creator of the musical composition “Emmanuel.” According to the Complaint, the composition was first published in a songbook in 1980. However, Ambrosetti did not receive U.S. Copyright Registration No. PA 2-231-246 for “Emmanuel” until March 4, 2020.

Ambrosetti claims Defendant, Bernadette Farrell (“Farrell”), copied and infringed upon his work when she composed “Christ Be Our Light” in 1993. Further, Ambrosetti claims, Defendant, Oregon Catholic Press (“OCP”), obtained the rights to sell, market, distribute, and license “Christ Be Our Light” from Farrell. Because Farrell and OCP have apparently been distributing and publicly performing the allegedly infringing “Christ Be Our Light” for many years, and especially within the past three years, Ambrosetti is seeking damages and attorneys’ fees for copyright infringement pursuant to 17 U.S.C. §§ 504(b) and 505.