Indiana Intellectual Property Law News

January 3, 2020

Patent Office Issues 264 Patents To Indiana Citizens in December 2019

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”.

December 3, 2019

Patent Office Issues 216 Patents To Indiana Citizens in November 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 216 patent registrations to persons and businesses in Indiana in November 2019, based on applications filed by Indiana patent attorneys:

	Patent No.	Title
1	D0868211	Faucet
2	D0868210	Faucet
3	D0868208	Handshower
4	10,491,604	Identification, authentication, and authorization method in a laboratory system
5	10,491,145	Gas turbine generator speed DC to DC converter control system

December 2, 2019

235 Trademark Registrations Issued to Indiana Companies in November 2019

By Overhauser Law Offices, LLC

The U.S. Trademark Office issued the following 235 trademark registrations to persons and businesses in Indiana in November 2019 based on applications filed by Indiana trademark attorneys:

Registration No.	Word Mark
5921041	D DEXTER PREMIUM WARRANTY 5/10 YEARS
5920968	WINDEMERE
5920658	LONDON AIRE
5920513	CASE ELEGANCE

November 26, 2019

Indiana Trademark Litigation: AWGI, LLC and Atlas Van Lines, Inc. Granted Default Judgment

By Overhauser Law Offices, LLC

Indianapolis, Indiana – The case of AWGI, LLC and Atlas Van Lines, Inc. versus American Wide Relocation Inc. d/b/a Atlas Moving and Storage (“American Wide”) was filed by Plaintiffs alleging American Wide infringed their rights in two separate United States Registered Trademarks. American Wide failed to appear or respond to Plaintiffs’ Complaint and upon Motion for Final Default Judgment, the Court granted default judgment to the Plaintiffs on October 1, 2019.

In accordance with the default judgment, American Wide and all those persons who receive actual notice of the Court’s Order are permanently enjoined and restrained from: causing likelihood of confusion; “directly or indirectly falsely designating or representing that any goods or services are authorized, approved, associated with, or originate from, Plaintiffs”; “directly or indirectly using the ‘Atlas’ mark and the Infringing Logo or any confusingly similar variants”; utilizing the “Atlas” mark and the Infringing Logo; and “publishing, assembling, marketing, distributing, or otherwise utilizing any literature . . . which bear the ‘Atlas’ mark and the Infringing Logo”.

American Wide was further ordered: to destroy all literature, advertisements, etc. that bear the “Atlas” mark and the Infringing Logo; to notify its customers that the “Atlas” mark and Infringing Logo are not connected with Plaintiffs; and to immediately comply with the Court’s Order including filing “a statement, under oath and penalty of perjury, that each and every injunctive provision has been fully and completely complied with.” Finally, American Wide was ordered to transfer all internet domains and social media accounts that incorporate the term “Atlas” to the Plaintiffs.

November 25, 2019

Indiana Trademark Litigation: Three Floyds Brewing LLC of Munster, Indiana Seeks Damages for Alleged Trademark Infringement

By Overhauser Law Offices, LLC

Hammond, Indiana – Attorneys for Plaintiff, Three Floyds Brewing LLC (“Three Floyds”) of Munster, Indiana filed suit in the Northern District of Indiana alleging that Defendants, Floyd’s Spiked Beverages LLC and Lawrence Trachtenbroit, both of Basking Ridge, New Jersey, infringed its rights in United States Trademark Registration Nos. 3,853,136, 4,759,863, 4,341,332 and 5,781,941 (collectively the “Three Floyds’ Marks”). Plaintiff is seeking actual damages, punitive damages, pre and post judgment interest, and attorneys’ fees..

Three Floyds claims to be one of the top craft brewers in the United States, selling under the trade name and mark “THREE FLOYDS” since 1996. Two of the Three Floyds’ Marks at issue in this case are claimed to be incontestable by Three Floyds pursuant to 15 U.S.C. § 1065. Three Floyds further claims that its marks have become publicly identifiable and that its customers frequently shorten the Three Floyds’ Marks to “‘FLOYDS’ and refer to ‘FLOYDS’ as the source of Three Floyds’ products and services.”

According to the Complaint, Defendants produce and sell alcoholic lemonade and tea beverages under the name “Floyd’s”. Defendants allegedly filed U.S. Trademark Application Serial No. 87922801 (the “First Application”) with the USPTO for a stylized FLOYD’s logo (the “Floyd’s logo”) for “Alcoholic beverages, except beer” on May 15, 2018. Defendants claimed to have used the Floyd’s logo in commerce since at least May 1, 2018. On or about November 5, 2018, it is alleged that Defendants filed U.S. Trademark Application Serial No. 88181124 (the “Second Application”) with the USPTO to register the mark “FLOYD’S” for “Beer-based coolers” and claimed to have used the mark in commerce since at least January 1, 2018.

November 18, 2019

Indiana Patent Litigation: Indiana Court Denies Motion for Preliminary Injunction in RV Range Oven Case

By Overhauser Law Offices, LLC

Hammond, Indiana – The Northern District of Indiana, South Bend Division, issued its Opinion and Order denying a Motion for Preliminary Injunction in the case of Furrion Property Holding Limited, and Furrion Limited (collectively “Furrion”) versus Way Interglobal Network, LLC (“Way Interglobal”). This case was filed by Furrion in July 2019 alleging Way Interglobal’s oven infringed Furrion’s 2 in 1 Range Oven. Furrion then moved for a preliminary injunction, barring any further sales of the allegedly infringing product until the lawsuit was decided. The Court held Furrion “failed to meet its burden of showing irreparable harm”, and therefore denied the Motion for a Preliminary Injunction.

Furrion, as evidence of intentional copying and infringement, claims the user manual produced by Way Interglobal utilizes identical language to Furrion’s manual. While that could be an exceptional coincidence, Judge Simon found the images included in Way Interglobal’s manual included images of Furrion’s 2 in 1 Range Oven including Furrion’s trademarked logo. Way Interglobal’s CEO and president, Wayne Kaylor, testified that he was unaware of the similarities in the user manuals and speculated that the Chinese manufacturer who writes the user manual may have taken a shortcut when preparing the manual. Kaylor further testified that Way Interglobal had heard rumors that Furrion was alleging Way Interglobal’s range oven infringed Furrion’s patents in or around July 2018 and that “Way Interglobal changed the metal grate of its gas range to distinguish it from Furrion’s” without admitting any infringement.

To find in favor of Furrion’s motion for preliminary injunction, Furrion must show “(1) a likelihood of success on the merits . . . ; (2) a likelihood of irreparable harm if the injunction is not granted; (3) the balance of hardships between the parties favors an injunction; and (4) the public interest likewise favors an injunction.” PHG Techs., LLC v. St. John Companies, Inc., 469 F.3d 1361, 1365 (Fed. Cir. 2006). “[I]f the moving party fails to clear the likelihood of success and irreparable harm hurdles, ‘a court’s inquiry is over and the injunction must be denied” in the Seventh Circuit. Abbott Labs v. Mead Johnson & Co., 971 F.2d 6, 11 (7th Cir. 1992). However, if the moving party shows all four elements, the court weighs he factors in deciding whether to grant the injunction.