Indiana Intellectual Property Law News

January 31, 2020

Indiana Trade Secrets Litigation: Dow AgroSciences LLC and Phytogen Seed Company, LLC Sue Two Former Employees for Alleged Misappropriation of Trade Secrets

Indianapolis, Indiana – Attorneys for Plaintiffs, Dow AgroSciences LLC (“Dow”) of Indianapolis, Indiana and Phytogen Seed Company, LLC (“Phytogen”), a Delaware limited liability company, filed suit in the Southern District of Indiana alleging that Defendants, Robert Lemon and Sotero Ramirez, both residents of Texas, infringed their rights under the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1831, et seq. Plaintiffs are seeking permanent injunctions, judgment, compensatory damages, attorney’s fees, costs, and other relief the Court deems proper.

Dow claims to be an industry-leading agricultural chemical and seed company working on innovative ways to increase farm yield and create productive seeds while emphasizing sustainability. Phytogen claims to sell cottonseed under the trade name PhytoGen®, primarily in the southern United States. According to the Complaint, Dow and Phytogen have a mutual controlling member, Mycogen LLC, that allows Dow to provide services to Phytogen via a Service Agreement. Those services allegedly include allowing Dow’s employees to sell PhytoGen® cottonseed.

According to the Complaint, Lemon and Ramirez were both employed by Dow until September 5, 2019. At some point during or before Lemon and Ramirez terminated their employment with Dow, they allegedly both signed Loyalty and Confidentiality Agreements with Plaintiffs (“Agreements”) which included non-compete and non-disclosure agreements. Ramirez allegedly worked for Dow as a Territory Manager and Lemon was a PhytoGen® Cotton Development Specialist, supporting Ramirez and three other Territory Managers.

Prior to giving their two weeks’ notice and resignation from Dow to work for a direct competitor, Americot, Plaintiffs allege Lemon and Ramirez knew of and planned their departure for weeks. Lemon and Ramirez also allegedly lied about the positions they were taking with Americot and told Dow Representatives that they would not be working in similar positions for their new company. Following the resignations, Dow claims it took possession of the Defendants’ company property including their laptops and cell phones.

After an investigation took place, Dow claims it found evidence that the Defendants had attended important, proprietary, strategy meetings after they had received their job offers. Dow further claims the Defendants had deleted and/or transferred information, including proprietary and confidential information, from their company laptops and phones to other devices, including USBs, which were not turned in to Dow. Finally, Dow claims it has text message evidence that shows Lemon planning to utilize training materials developed by Dow in his employment at Americot and shows the Defendants planning to take and utilize contact information for their current clients.

As such, Dow and Phytogen are seeking judgment and damages for the misappropriation of trade secrets against both Defendants pursuant to the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1831, et seq., the Texas Uniform Trade Secrets Act, Tex. Civ. Code § 134A.001 et seq., and the Indiana Code § 24-2-3-1, et seq. Dow and Phytogen are also seeking damages from Lemon and Ramirez for breaching their Agreements.

January 30, 2020

Indiana Trademark Litigation: Jelly Belly Candy Company Sued for Alleged Trademark Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Circle City Marketing & Distributing, Inc. d/b/a/ Candy Dynamics (“Candy Dynamics”) of Carmel, Indiana, filed suit in the Southern District of Indiana alleging that Defendant, Jelly Belly Candy Company (“Jelly Belly”) of Fairfield, California, infringed its rights in United States Trademark Registration No. 4,780,103 (the “‘103 Registration”) for “candy”. Candy Dynamics is seeking damages, costs, attorneys’ fees, expenses, and any other relief the Court deems proper.

Candy Dynamics claims it has sold candy for over twenty years and has offered various product lines including its TOXIC WASTE® line of sour candy. According to the Complaint, Candy Dynamics began using a two-tone pattern of alternating angled stripes (the “Hazard Stripe Mark”) for its advertising and packaging at least as early as 2001. Candy Dynamics claims that the Hazard Stripe Mark is inherently distinctive and it was therefore awarded trademark protection under the ‘103 Registration.

According to the Complaint, Jelly Belly has, with constructive knowledge of the Hazard Stripe Mark, advertised, promoted, and sold candy products, including its Bean Boozled product line using a “hazard stripe design” (the “Infringing Mark”). Candy Dynamics claims that on or about March 28, 2017, its counsel sent a letter to Jelly Belly informing it of the ‘103 Registration and alleged infringement. While Jelly Belly allegedly agreed to “phase out use of the solid stripe design,” Candy Dynamics claims Jelly Belly instead slightly modified its product by adding several “CAUTION” statements in front of the Infringing Mark and modified the width of the stripes. As such, Candy Dynamics is seeking damages for federal and common law trademark infringement and unfair competition pursuant to 15 U.S.C. § 1114 et seq., the common law, and 15 U.S.C. § 1125, respectively.

January 16, 2020

Indiana Trademark Litigation: CityMoms, Incorporated in Delaware, Seek Declaratory Judgment Against theCityMoms Greater Indianapolis LLC

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, CityMoms, Inc. (“CityMoms”) incorporated in the State of Delaware, filed suit in the Southern District of Indiana seeking a declaratory judgment that its use of “CityMoms” does not infringe the rights of Defendant, theCityMoms Greater Indianapolis LLC (“theCityMoms”) of Indianapolis, Indiana, or theCityMoms’ Trademark Registration No. 4,588,132 (the “‘132 Registration”) for “theCityMoms”. In the alternative, if there is a likelihood of confusion found between the two parties’ marks, CityMoms is claiming its use of the term predates that of theCityMoms. As such, CityMoms is seeking declaratory judgment of non-infringement, and in the alternative, injunctive relief, judgment including statutory damages, and attorneys’ fees.

According to the complaint, CityMoms conducts business online and offers, among other things, a mobile app and software system “that helps local businesses book unused spots in their kids’ activities programs and family events.” TheCityMoms is alleged to provide “a sisterhood for the modern mom” that offers a support network for moms, events and activities, and an official membership. CityMoms claims that theCityMoms has threatened to take action against it for trademark infringement and unfair competition and has interfered with CityMoms’ ability to sell its app to a third party.

CityMoms’ services are alleged to have begun in 2012 with theCityMoms filing its application for the ‘132 Registration on January 2, 2014. This application was given Serial No. 86156171 (the “‘171 Application”) and was filed for the goods and services of International Class 041, which includes “Educational and entertainment services, namely, providing motivational and educational speakers; Organizing, arranging, and conducting playdates, mom-only evenings, open play times, shopping parties, fitness classes, volunteering and cultural events”. The ‘171 Application was submitted with a statement by Melissa Kondritz and Jeanine Bobenmoyer that “theCityMoms” was used in commerce and related with the company at least as early as March 1, 2013. However, CityMoms claims that the domain name http://thecitymoms.org/ was not registered until March 8, 2013 and therefore could not have existed prior to that date. CityMoms further claims it has found no evidence theCityMoms provided motivational and educational speakers on or before January 2, 2014 as part of its business and therefore, the ‘171 Application was filed with “willfully false material statements that constituted fraud” and should make the ‘132 Registration invalid and unenforceable.

January 15, 2020

Indiana Trademark Litigation: F.F.T., LLC Seeks Damages for Alleged Infringement Involving “Functional Family Therapy℠”

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, F.F.T., LLC (“F.F.T.”) having a principal place of business in Seattle, Washington, filed suit in the Southern District of Indiana alleging that Defendants, Thomas Sexton, Ph.D. (“Sexton”), Functional Family Therapy Associates, Inc. (“Functional Family Therapy”), Astrid Van Dam (“Van Dam”), and FFT Partners, LLC (“FFT Partners” and collectively “Defendants”), infringed its rights in United States Trademark Registration Nos. 4,389,569 for the mark FFT-CW®, 4,435,321 for the mark FFP®, and 5,267,897 for the mark FUNCTIONAL FAMILY THERAPY CHILD WELFARE®. F.F.T. is seeking injunctive relief, judgment including statutory damages, and attorneys’ fees.

F.F.T. claims it “is an organization dedicated to training psychotherapists in the ‘Functional Family Therapy’ protocol that its founder, Dr. James F. Alexander (“Dr. Alexander”), developed through decades of research and practical application.” According to the complaint, F.F.T. conducts business in thirty-three states and ten foreign countries. Sexton and Van Dam are individuals, alleged to be residing in Bloomington, Indiana. Functional Family and FFT Partners are a corporation and limited liability company, respectively, each alleged to have a principal place of business in Bloomington, Indiana.

According to the Amended Complaint, Dr. Alexander began studying and developing his family based method of therapy for delinquent adolescents in the 1960s and began referring to his therapy model as “Functional Family Therapy” in 1982 with the publication of his first book. F.F.T. claims this protocol has become very successful and is now referred to simply as “FFT.” Dr. Alexander along with non-party, Richard Harrison (“Harrison”), and Sexton allegedly formed FFT, Inc. in 1998 to train therapists in the Functional Family Therapy protocol. Per the complaint, Harrison left the company four years later and Douglass Kopp (“Kopp”) entered the company as CEO and Managing Member. F.F.T. claims it was formed to pursue the same efforts as FFT, Inc., which was subsequently administratively dissolved.

January 13, 2020

Trademark Law: United States Court of Appeals for the Seventh Circuit Affirms Award of Over $17.3 Million

By Overhauser Law Offices, LLC

The United States Court of Appeals for the Seventh Circuit issued an opinion reversing the denial of attorney’s fees, remanding for an entry of a reasonable fee reward under 15 U.S.C. § 1117(a), and affirming all other aspects of the judgment of the district court in the case of 4SEMO.com Incorporated (“4SEMO”) versus Southern Illinois Storm Shelters, Inc. (“SISS”), et al. (collectively “Defendants”). While the Defendants originally sued 4SEMO in this case, the case was reconfigured as above for the July 2017 bench trial and decision, which was on appeal.

According to the opinion, 4SEMO began selling storm shelters manufactured by SISS in 2005. 4SEMO is a Missouri-based home-remodeling firm while Robert Ingoldsby and his brother Scott (the “Ingoldsbys”) run the Illinois based company, SISS. 4SEMO began marketing the storm shelters under a wordmark “Life Saver Storm Shelters” and a matching logo (the “Marks”) that it affixed to the shelters it sold in Missouri and Arkansas pursuant to an exclusive dealership agreement with SISS. The Ingoldsbys were granted a limited license to use the 4SEMO Marks for shelters marketed in southern Illinois. However, the Ingoldsbys violated the limited license by using the 4SEMO Marks on shelters sold throughout the country.

SISS sued 4SEMO for trademark infringement over the “Life Saver” wordmark, claiming they had used it prior to 4SEMO and that they had ownership of the wordmark. 4SEMO counterclaimed for trademark infringement and false endorsement, along with various state-law claims. After SISS’s claim did not survive summary judgement, 4SEMO’s counterclaims were tried to the bench and the district court found in favor of 4SEMO on all counts and awarded $17,371,003 in damages for profit disgorgement and $26,940 for breach of contract. However, 4SEMO’s motion for vexatious-litigation sanctions and attorney’s fees under 28 U.S.C. § 1927 and the Lanham Act, respectively, was denied.

January 3, 2020

Patent Office Issues 264 Patents To Indiana Citizens in December 2019

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 264 patent registrations to persons and businesses in Indiana in December 2019, based on applications filed by Indiana patent attorneys:

	Patent No.	Title
1	D0871558	Faucet body
2	D0871557	Faucet body
3	D0871556	Faucet body
4	D0871555	Faucet spout
5	D0871554	Faucet handle

January 2, 2020

221 Trademark Registrations Issued to Indiana Companies in December 2019

By Overhauser Law Offices, LLC

The U.S. Trademark Office issued the following 221 trademark registrations to persons and businesses in Indiana in December 2019 based on applications filed by Indiana trademark attorneys:

Registration No.	Word Mark
5939875	SOTBT
5944225	CALACATTA CLARA
5944224	BIANCO PEPPER
5944223	BAYSHORE SAND
5944222	ANTICO CLOUD

December 27, 2019

Indiana Copyright Litigation: German Photographer Sues Toolfarm.com for Alleged Copyright Infringement

By Overhauser Law Offices, LLC

Attorneys for Plaintiff, Marco Verch (“Verch”) of Germany, filed suit in the Northern District of Indiana alleging that Defendant, Toolfarm.com, Inc. (“Toolfarm”) of South Bend, Indiana, infringed his rights in United States Copyright Registration No. VA 2-106-766. Verch is seeking actual damages, profits, income, receipts, or other benefits received by Toolfarm, costs, expenses, attorneys’ fees, and pre-judgment interest.

According to the complaint, Verch is a professional photographer claiming Toolfarm has reproduced and publicly displayed his copyrighted photograph of traditional Russian wooden dolls (the “Photograph”). Verch claims Toolfarm ran the Photograph on its website without a license, permission, or consent from Verch. As such, Verch is seeking damages for copyright infringement pursuant to 17 U.S.C. §§ 106, 501, and 504.

This case was filed by Verch’s attorney, Mr. Leibowitz, just six days after he was ordered to personally pay $28,567.50 to a defendant in another case. In that case, Mr. Leibowitz was found to have engaged in discovery misconduct by failing to identify witnesses as required by Rule 26. The court stated that Mr. Leibowitz was:

more focused on the business of litigation than on selling a product or service or licensing their copyrights to third parties to sell a product or service. A copyright troll plays a numbers game in which it targets hundreds or thousands of defendants seeking quick settlements priced just low enough that it is less expensive for the defendant to pay the troll rather than defend the claim.

The Court then ordered his client to post a $50,000 bond to continue with the case. When his client failed to do so, the court dismissed the case.

December 23, 2019

Trademark Litigation: Seventh Circuit Adopts New Standard for Lanham Act’s Fee-Shifting Provision

By Overhauser Law Offices, LLC

LHO Chicago River, LLC (“LHO”) filed a trademark infringement suit against Joseph J. Perillo, Rosemoor Suites, LLC, and Portfolio Hotels & Resorts, LLC (collectively the “Defendants”) in the Northern District of Illinois, Eastern District. The case was voluntarily dismissed by LHO and after being denied their Lanham Act attorney fees, the Defendants appealed to the United States Court of Appeals for the Seventh Circuit. The Court of Appeals held the Supreme Court’s decision in Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545 (2014), which was a patent case, should guide district courts when facing attorney fee applications under the Lanham Act.

LHO’s upscale hotel in downtown Chicago underwent a branding change to become “Hotel Chicago” in February 2014. Just over two years later, the Defendants opened their own “Hotel Chicago” about three miles from LHO’s hotel. LHO then sued “for trademark infringement and unfair competition under the Lanham Act, 15 U.S.C. § 1125(a), and for trademark infringement and deceptive trade practices under Illinois state law.” After litigating for over one year, LHO moved to voluntarily dismiss its claims and the judgment was entered on February 21, 2018.

After judgment was entered, pursuant to 15 U.S.C. § 1117(a), Defendants made a post-judgment request for attorney fees. In their brief, the Defendants cited two different standards for determining if attorney fees should be granted: (1) the Seventh Circuit’s prevailing standard, “that a case is exceptional under § 1117(a) if the decision to bring the claim constitutes an ‘abuse of process’; and (2) the more relaxed totality-of-the-circumstances approach under the Patent Act” from the Octane case. The district judge acknowledged Octane in his findings but did not adopt that approach and denied Defendants request for attorney fees.

December 9, 2019

Indiana Trademark Litigation: Dean Potter LLC Sues LG for Unauthorized Use of Video Footage

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Dean Potter LLC (“Potter LLC”), an Indiana limited liability company, filed suit in the Southern District of Indiana alleging that Defendants, LG Electronics USA, Inc. (“LG”), a Delaware corporation, and DOES 1 – 10, infringed its intellectual property rights, including the right of publicity. Potter LLC is seeking injunctive relief, judgment including statutory damages, and attorneys’ fees.

According to the Complaint, Potter LLC “is the exclusive owner of the name, likeness, image, right of publicity and endorsement, trademarks, and other intellectual property rights of the late Dean Potter.” Potter LLC claims Mr. Potter was a well-known extreme sports athlete who was featured in National Geographic for his stunts including highlining, BASE jumping, and rock climbing. Mr. Potter was allegedly featured traversing a highline in the short film entitled Moonwalk, that was shot in 2011 and published by 2012. It is alleged that no one else has recreated Mr. Potter’s performance in Moonwalk and that Potter LLC is the owner of Mr. Potter’s right of publicity and common law trademark rights in the film.

Potter LLC alleges Defendants utilized footage from Moonwalk in which Mr. Potter was traversing the highline in its commercial entitled “Listen. Think. Answer.” (the “Commercial”). According to the Complaint, LG is a multi-billion dollar corporation that has previously protected and enforced its intellectual property rights, meaning it is aware of the need to obtain a license for using Mr. Potter’s right of publicity and or likeness or commercial purposes. However, Potter LLC claims it was not approached by Defendants regarding a license for the Commercial and it never authorized Defendants to use Mr. Potter’s likeness. Potter LLC further claims Mr. Potter, during his life, “rejected the corporate, commercial, and competitive worlds that sought to profit from his art without understanding it”.