Indiana Intellectual Property Law News

May 5, 2020

Patent Office Issues 189 Patents To Indiana Citizens in April 2020

The U.S. Patent Office issued the following 189 patent registrations to persons and businesses in Indiana in April 2020, based on applications filed by Indiana patent attorneys:

	Patent No.	Title
1	D0882736	Faucet handle
2	D0882276	Nonwoven fabric
3	10,637,388	Motor drive with moisture control features
4	10,637,387	Motor control device
5	10,636,583	Material property capacitance sensor
6	10,634,677	Use of acamprosate to modulate ERK1/2 activation in animal models for FXS and ASD and individuals diagnosed with FXS and ASD
7	10,634,659	Test strip ejector for medical device
8	10,634,579	Methods and apparatus for detecting position of a liquid
9	10,634,549	Hospital bed scale calibration methods and patient position monitoring methods
10	10,634,397	Devices, systems, and methods for the rapid transient cooling of pulsed heat sources

April 27, 2020

Massachusetts Braces for Patent Suit Transferred from Indiana

By Overhauser Law Offices, LLC

New Albany, Indiana – Ultra Athlete LLC (“Ultra Athlete”) originally filed suit against Defendants, Jalmar Araujo and JB Sports, LLC d/b/a Flexibrace, in the Southern District of Indiana. Ultra Athlete claimed the Defendants willfully infringed its rights in both United States Patent Nos. 6,749,578 for “Ankle Brace With Cuff and Strap” and D550,370 for “Ankle Brace Shell”. Further, Ultra Athlete claimed Defendants violated the Lanham Act by infringing its trade dress and by acting in a manner that constituted unfair competition. Finally, Ultra Athlete claimed Defendants violated the unfair competition laws of Indiana.

After the Court dismissed the patent infringement and Lanham Act unfair competition claims, the only claims remaining in the suit were trade tress infringement and unfair competition under Indiana laws. Ultra Athlete filed the dismissed claims in the proper venue – the District of Massachusetts – and Defendants moved to transfer the remaining claims to the same venue.

Judge Richard L. Young of the Southern District of Indiana granted the Motion to Transfer the case to the District of Massachusetts stating, “[t]he court finds the convenience of the parties, the convenience of the witnesses, and the interests of justice warrant” the transfer. Judge Young further noted, “most importantly, transferring this case to Massachusetts will avoid duplicative litigation and the potential for conflicting rulings.” Overhauser Law Offices represented the prevailing Defendants in both the Motion to Dismiss and the Motion to Transfer.

April 23, 2020

Syndicate Sales Gains Home-Field Advantage in Trademark Infringement Suit

By Overhauser Law Offices, LLC

Syndicate Sales Inc., an Indiana corporation, along with six other Defendants filed notice to remove a case initially filed in the Superior Court of California, County of Los Angeles by Plaintiff, Natural Pack, Inc. (“Natural Pack”). Defendants sought to remove the case to the United States District Court for the Central District of California pursuant to 28 U.S.C. §§ 1331, 1337, and 1441 for federal question and diversity jurisdiction.

The removed case is a civil action entitled Natural Pack, Inc. v. Syndicate Sales, Inc. et al. Case No 19TSCV32476 (the “State Action”). Natural Pack filed the State Action on September 12, 2019, asserting claims for violation of Uniform Trade Secrets Act, fraud, negligent misrepresentation, breach of contract, intentional interference with prospective economic relations, negligence, violation of the Lanham Act, and California Statutory and common law infringement. Following removal to the Central District of California, the Defendants filed a Motion to Dismiss under F.R.C.P. 12(b)(2) or in the alternative to Change Venue pursuant to 28 U.S.C. § 1401. The case was transferred to the Southern District of Indiana on January 21, 2020.

The Original Notice of Removal was filed October 15, 2019 in the Central District of California; and the case was transferred to the Southern District of Indiana on January 21, 2020 given Case No. 1:20-cv-00219-JRS-DLP and assigned to District Judge James R. Sweeney and Magistrate Judge Doris L. Pryor.

April 22, 2020

Judge relies on Indiana Verdict to Deny Oregon Judgment for Bell

By Overhauser Law Offices, LLC

District of Oregon – Richard Bell, a well-known copyright infringement litigant, has filed over 100 lawsuits regarding infringement of U.S. Copyright No. VA0001785115 (the “Indianapolis Photo”). However, in September 2019, a federal jury in Bell v. Carmen Commercial Real Estate Servs. found that Bell was unable to prove that he actually owned the Indianapolis Photo. Case No. 1:16-cv-01174-JRS-MPB, (S.D. Ind. Sept. 26, 2019). Being that the first element in a copyright infringement claim is to prove ownership of a valid copyright, it appeared that the jury’s decision would put an end to future litigation for Bell.

In the present case, Bell, sought a default judgment against Michael J. Davis and three other Defendants for allegedly infringing his rights in the Indianapolis Photo in the U.S. District Court for the District of Oregon. After the Defendants failed to appear or respond to the Complaint, the Magistrate Judge issued an entry of default against all of the Defendants. Bell then filed a motion for an entry of default judgment to be entered along with an award of $150,000 in statutory damages, attorneys’ fees, costs, and injunctive relief.

April 21, 2020

Gary Indiana Venue Sued for Alleged Copyright Infringement

By Overhauser Law Offices, LLC

Hammond, Indiana – Broadcast Music, Inc. (“BMI”), along with eleven other Plaintiffs (the “Copyright Owners”), filed suit against Backstage of Indiana, LLC d/b/a Backstage on Broadway (“Backstage”) and Marcell Jackson (“Jackson” and collectively “Defendants”) alleging copyright infringement of six different musical compositions. BMI alleges it has licensing rights to the six musical compositions at issue which are owned by the eleven Copyright Owners. Jackson is allegedly an owner of Backstage and is responsible for the operation and management of the establishment including the public performance of musical compositions. BMI and the Copyright Owners are seeking damages for six claims of willful copyright infringement after allegedly reaching out to Defendants over seventy times in an effort to educate them on the Copyright Act and license the musical compositions to Defendants.

The case was assigned to Northern District Judge Philip P. Simon and Magistrate Judge Joshua P. Kolar in the Northern District and assigned Case 2:20-cv-00010-PPS-JPK.

BMI-Complaint

April 17, 2020

Cook Medical Granted New Trial Due to Prejudicial Error

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Cook Medical was granted a new trial after the Honorable Richard L. Young, a judge for the United States District Court for the Southern District of Indiana, admitted to errors in allowing inadmissible evidence to be presented to the jury by counsel for Plaintiff, Tonya Brand.

Ms. Brand was implanted with a Cook Celect® Inferior Vena Cava Filter (“Cook IVC Filter”) prior to undergoing a complex spine surgery in March 2009. The next month, imaging was taken that showed the filter perforating Ms. Brand’s IVC in multiple places and that one of the filter’s “struts” was hooked on a bone spur. The Cook IVC Filter later fractured in three places in just over two years after its initial placement. A piece of the Cook IVC Filter emerged through Ms. Brand’s thigh. After a failed attempt by Ms. Brand’s doctor to retrieve the filter in July 2011, the doctor and Ms. Brand elected to leave the fractured Cook IVC Filter in place until it was removed in 2015. Ms. Brand filed a products liability suit in November 2014 and was awarded a jury verdict in the amount of $3 million on February 1, 2019.

A new trial may be granted if the trial was not fair to the moving party or if the improper admission of evidence has a “substantial influence on the jury” and the result was “inconsistent with substantial justice.” The main piece of evidence objected to by Cook was Brand’s trial exhibit 1913 (“PX-1913”). This exhibit was an email chain between Cook employees including multiple instances of hearsay and a table with details of 27 deaths associated with Cook IVC Filters. The Court on review found Ms. Brand’s injuries were not substantially similar to those patients listed on the table and the emails contained inadmissible hearsay and therefore PX-1913 was improperly admitted. Further, Ms. Brand’s counsel relied heavily on the connection between the Cook IVC Filter and death based on PX-1913 which was found to be inappropriate and prejudicial on review. Finally, the Court found “a jury could have just as easily found in Cook’s favor.” and because this trial was so close it, “is more likely to have been affected by errors.” Therefore, the Court granted Cook’s Motion for New Trial.

April 16, 2020

Bonanza Steak & BBQ Sued for Alleged Copyright Infringement

By Overhauser Law Offices, LLC

New Albany, Indiana – Broadcast Music, Inc., one of six Plaintiffs in this copyright infringement case, claims to license the public performance rights for 14 million copyrighted musical compositions (the “BMI Repertoire”). The other five Plaintiffs claim to each own at least one copyright in the musical compositions at issue which include “Free Bird,” “Me And Bobby McGee,” and “Midnight Rider.”

Defendant Scott County Restaurants, Inc. (“Scott”) allegedly owns and operates Bonanza Steak & BBQ (“Bonanza”) in Seymour, Indiana. According to the Complaint, Defendant Michael P. Everhart (“Everhart”) is an officer of Scott and is responsible for the activities and operations of Bonanza. Apparently, the musical compositions at issue in this case were each played at Bonanza on at least one occasion. Plaintiffs claim to have reached out to Defendants over 40 times regarding the necessity for Defendants to purchase a license for public performance before filing this suit seeking damages for willful copyright infringement.

The case was assigned to District Judge Tanya W. Pratt and Magistrate Judge Debra McVicker Lynch in the Southern District and assigned Cause No. 4:20-cv-000006-TWP-DML.

April 9, 2020

Car Seat Manufacturer Sued Again for Alleged Patent Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Plaintiffs, Esther A. L. Verbovszky (“Verbovzsky”) and Hug Me Joey, LLC (“Hug Me Joey”), less than a year after voluntarily dismissing a similar lawsuit, have once again filed a complaint against Defendant Dorel Juvenile Group, Inc. d/b/a Maxi-Cosi (“Dorel”) claiming patent infringement. According to the Complaint, Verbovzsky strives to design and invent products to abate breathing and digestive issues in small infants during transport. Verbovzsky further claims to be the owner of U.S. Patent No. 6,467,840 (the ‘840 Patent”) for “Child’s Car Seat Insert.” As the founder and CEO of Hug Me Joey, Verbovzsky allegedly licensed the ‘840 Patent to Hug Me Joey for the manufacturing of the Hug Me Joey child’s car seat insert (the “HMJ Insert”).

Apparently Dorel manufactures car seats, including 22 models that were nam ed in the Complaint as the “Accused Products”. Plaintiffs claim each of the Accused Products that are manufactured and/or sold by Dorel infringe the ‘840 Patent due to the “infant insert”, “insert cushion(s)”, “insert pillow”, “body pillow”, or “body insert pillow” that is stated to come with each car seat. The Plaintiffs believe the infringement by Dorel to be willful and knowingly. Threfore, they are seeking treble damages and a finding that this is an exceptional case pursuant to 35 U.S.C. §§ 284 and 285, respectively.

The case was assigned to District Judge Richard L. Young and Magistrate Judge Matthew P. Brookman in the Southern District and assigned Case 1:20-cv-00061-RLY-MPB.

April 8, 2020

Competing Jewelry Companies in Court Again over Alleged Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Sheryl Lutz-Brown (“Sheryl”), the principal for Plaintiff, Corlinea, is a graphic designer and creator of copyrighted jewelry designs. In 2016, Sheryl claims to have developed a unique work entitled “HEARTY LOVE Design” that incorporated the word “love” into a heart shape design with one continuous line. Shortly after the “HEARTY LOVE Design”, it appears Sheryl created the “Heartlines Love Pendant” which was a heart-shaped pendant with the word “love” incorporated into the design with a continuous line. Sheryl registered both of these designs and they were assigned U.S. Copyright Registration Nos. VAu 1-301-361 and VAu 2-093-049 (the “Registered Copyrights”), respectively. Corlinea claims to own both of the Registered Copyrights by assignment.

Corlinea and Defendant, Shah Diamonds, Inc. d/b/a Shah Luxury (“Shah”), are no strangers in litigation as Corlinea previously sued Shah in a similar lawsuit in 2018. The parties in that case entered into a confidential Settlement Agreement and Release and the case was voluntarily dismissed. Less than one year after Shah signed the previous Settlement Agreement and Release, Corlinea claims it discovered Shah was once again offering infringing jewelry for sale on its website.

Corlinea claims Defendants, Spath Jewelers, Inc. and Showcase Jewelers, LTD are also offering infringing jewelry for sale on their respective websites. Due to the allegedly intentional copying of the Registered Copyrights, Corlinea is seeking damages for Federal Copyright Infringement pursuant to 17 U.S.C. § 501 and breach of the Settlement Agreement and Release from the 2018 lawsuit.

April 3, 2020

Cravin Vapes Sued for Alleged Trademark Infringement

By Overhauser Law Offices, LLC

Fort Wayne, Indiana – Plaintiff, CravinVapes, LLC, claims Defendants, Michael McClellan and Indiana Vapes, LLC infringed its U.S. Trademark Registration No. 4,714,661 (the “‘661 Mark”). Apparently, CravinVapes had previously licensed the ‘661 Mark to non-party, Lee Eddy (“Eddy”) in connection with his operation of an E-liquid business shop. It was noted when Eddy sold his store to Defendants, Eddy’s license agreement with CravinVapes was not transferable as part of the sale. However, CravinVapes claims Defendants opened an E-liquid store and have continued the use of the ‘661 Mark on the sign for the storefront. Plaintiff also claims Indiana Vapes LLC held themselves out to the public as a CravinVapes location on Facebook. While CravinVapes claims it gave McClellan an opportunity to sign a license agreement with it on August 17, 2018, it appears he refused to do so.

Just over a year after being offered the license agreement, Defendants were allegedly sent a cease and desist letter on November 13, 2019. According to the Complaint, after further discussions between the parties, Defendants removed the exterior sign with the ‘661 Mark from their storefront in December 2019, but have continued to use the ‘661 Mark on Facebook. CravinVapes is seeking an injunction and damages related to trademark infringement, false designation of origin, and unfair competition.

The case was assigned to Judge Holly A. Brady and Magistrate Judge Susan L. Collins in the Northern District of Indiana and assigned Case 1:19-cv-00546-HAB-SLC.