Indiana Intellectual Property Law News

September 17, 2019

Two Songs of Faith Go Head to Head in Copyright Infringement Battle

South Bend, Indiana – Attorneys for Plaintiff, Vincent A. Ambrosetti, individually and as Trustee of The King’s Ministrels Charitable Trust aka International Liturgy Publications (“ILP”), filed suit in the Northern District of Indiana alleging that Defendants, Oregon Catholic Press (“OCP”) of Portland, Oregon, and Bernadette Farrell, both allegedly doing business in the State of Indiana, infringed the rights in United States Copyright Registration No. PA0000525379 for the songbook “I Will Sing”. Ambrosetti is seeking injunctive relief, statutory damages, and attorneys’ fees.

According to the Complaint, Ambrosetti is the author and copyright owner of the song book “I Will Sing” and the trustee of ILP, another copyright claimant in this case. OCP allegedly acquires music licenses and sells and distributes music throughout the United States. Farrell, a citizen of the United Kingdom, also allegedly sells and distributes music throughout the United States.

Ambrosetti claims the musical work “Emmanuel” is a part of the “I Will Sing” songbook and that he applied for copyright registration for the individual work “Emmanuel” on August 12, 2019, which is still pending. “Emmanuel” was allegedly first published in 1980 in a song book entitled “Singing Holy”. The song was recorded five years later with the National Philharmonic Orchestra of London and performed at multiple national conventions.

September 16, 2019

Indiana Copyright Litigation: Attorney Bell Ordered to Pay Over $70,000 in Fees and Costs After Summary Judgment Loss

By Overhauser Law Offices, LLC

Indianapolis, Indiana –Plaintiff and Attorney Richard N. Bell of McCordsville, Indiana filed suit in the Southern District of Indiana alleging that Defendants, David N. Powell and Midwest Regional Network for Intervention with Sex Offenders (“MRNISO”), infringed his rights in his copywritten photograph. In this case, the Court was faced with cross-motions for summary judgment, which it ruled in favor of the Defendants. After being granted summary judgment, the Defendants filed their separate Motions for Attorney Fees and Bill of Costs. While Powell’s motion was denied as moot, MRNISO’s motion was granted.

Bell, in his motion for summary judgment asserted that he was owed for damages caused by the Defendants for their unauthorized use of his photograph. However, Powell asserted Eleventh Amendment immunity against Bell’s claims and MRNISO claimed it was protected by the fair use doctrine. The Court agreed with both Powell and MRNISO and granted them summary judgment.

Following the final entry of judgment against Bell, Powell and MRNISO each filed a separate motion for attorney fees. According to the Court, Bell filed a “Report of Settlement Between Powell and Bell” and requested all deadlines for Powell’s motion be stayed. Powell did not file a response to the Report of Settlement and thus the dates were vacated by the Court. Powell’s motion was denied by the Court without prejudice leaving Powell the opportunity to refile his motion if the settlement was not able to be finalized.

September 11, 2019

Evansville Moving Company Seeks Damages for the Use of the “ATLAS” Trademark

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiffs, AWGI, LLC and Atlas Van Lines, Inc. (“Atlas”) both of Evansville, Indiana, filed suit in the Southern District of Indiana alleging that Defendant, American Wide Relocation Inc. d/b/a Atlas Moving and Storage (“American”) of North Palm Beach, Florida, infringed their rights in United States Registration Nos. 3,718,117 for the mark “ATLAS”, and 1,591,344 for the mark “ATLAS—THE AGENTS’ VAN LINES” (the “Registered Marks”). Plaintiffs are seeking damages, statutory and treble damages, punitive damages, attorneys’ fees and any other relief the court deems proper.

According to the Complaint, Atlas has provided transportation and storage of goods to the public since at least 1948. Atlas and non-party, Atlas Investment Company, Inc., allegedly assigned all of their rights in the Registered Marks to AWGI on November 9, 2009. Atlas claims it has maintained a license to the Registered Marks since the assignment and that the Registered Marks have developed substantial goodwill as a result of the high quality of services it provides and the extensive amount of promotion it has put forth using the Registered Marks.

AWGI claims it sent a cease and desist letter to American on May 13, 2019 after discovering the alleged infringement of the Registered Marks on American’s website, which American uses to promote its moving and storage services. Richard Falcone, whom Plaintiffs believe is the owner of American, contacted Plaintiffs’ attorney on May 15, 2019 and claimed he could use the term “Atlas” because “it can be found in the dictionary”. Plaintiffs claim American’s services are inferior to their own and that American is employing deceptive practices such as using nearly identical Testimonials on its website as those found on other sites for different moving services. Due to their belief that American’s use of the Registered Marks is likely to cause confusion for consumers, Plaintiffs are seeking damages for trademark infringement under 15 U.S.C. § 1125(a)(1) and common law unfair competition.

September 5, 2019

Patent Office Issues 208 Patents To Indiana Citizens in August 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 208 patent registrations to persons and businesses in Indiana in August 2019, based on applications filed by Indiana patent attorneys:

	Patent No.	Title
1	D0857854	Faucet handle
2	D0857850	Faucet
3	D0857849	Faucet
4	D0857848	Faucet
5	D0857847	Faucet

September 4, 2019

203 Trademark Registrations Issued to Indiana Companies in August 2019

By Overhauser Law Offices, LLC

The U.S. Trademark Office issued the following 203 trademark registrations to persons and businesses in Indiana in August 2019 based on applications filed by Indiana trademark attorneys:

Registration No.	Word Mark
5847413	HATFIELD
5845679	REIMAGINING THE DELIVERY OF CARE
5845429	AL’S
5845179	WE DO HISTORY.
5845177	CASHVILLAN

August 30, 2019

Indiana-Based Grand Design RV, LLC Accused of Trademark Infringement

By Overhauser Law Offices, LLC

South Bend, Indiana – Attorneys for Plaintiff, Trane International, Inc. (“Trane”) of Davidson, North Carolina, filed suit in the Northern District of Indiana alleging that Defendant, Grand Design RV, LLC (“Grand Design”) of Middlebury, Indiana, infringed its rights in United States Trademark Registration No. 5,380,586 (the “‘586 Mark”) for the mark BUILT TO A HIGHER STANDARD. Trane is seeking actual damages, treble damages, attorneys’ fees, and any other relief the Court deems proper.

According to the Complaint, Trane is in the business of designing, building, and selling a variety of products including refrigeration and heating units for vehicles such as trucks and trailers. Trane alleges it has used the ‘586 Mark since at least 1992. Trane further claims that its air conditioners, furnaces, and heat pumps sold under the ‘586 Mark accounted for over $700 million of its sales in 2018.

Trane alleges Grand Design utilizes the ‘586 Mark on its temperature control devices that are used in recreational vehicles. Due to this use, Trane believes Grand Design’s actions will likely confuse consumers and will deceive third parties leading them to think Grand Design’s products are affiliated with Trane. Trane claims it sent two cease and desist letters in the spring of 2018, the second of which finally received a response from Grand Design refusing to cease the use of the ‘586 Mark. Instead, it is alleged Grand Design offered to use the designation “RV’S BUILT TO A HIGHER STANDARD”.

After multiple failed attempts at following up with Grand Design regarding its allegedly infringing use, Trane filed this suit for federal trademark infringement pursuant to 15 U.S.C. § 1114. Trane is further claiming federal unfair competition and trademark infringement under 15 U.S.C. § 1125(a). Finally, Trane is seeking damages for common law unfair competition under the common law of the State of Indiana.

August 29, 2019

Gatorade’s Use of the Term “Sports Fuel” Protected by Fair Use

By Overhauser Law Offices, LLC

Attorneys for Plaintiff-Appellant, SportFuel, Inc. (“SportFuel”), of Chicago, Illinois, originally filed suit against Defendants-Appellees, PepsiCo, Inc. (“Pepsi”) and The Gatorade Company (“Gatorade”) (collectively the “Appellees”), for trademark infringement in the United States District Court for the Northern District of Illinois, Eastern Division. After the District Court granted summary judgment for Gatorade and Pepsi, SportFuel appealed to the United States Court of Appeals for the Seventh Circuit. Circuit Judge Kanne wrote the opinion affirming the grant of summary judgment by the District Court.

SportFuel provides personalized nutrition services to professional and amateur athletes and sells its own brand of dietary supplements. SportFuel registered two trademarks for “SportFuel” the first of which was registered for “food nutrition consultation, nutrition counseling, and providing information about dietary supplements and nutrition.” Pursuant to 15 U.S.C. § 1065, the first registration became “incontestable” in 2013. The second registration for “SportFuel” was for “goods and services related to dietary supplements and sports drinks enhanced with vitamins.”

Gatorade, now a household name, was created in 1965. Although Gatorade is known for its traditional sports drinks, it also sells customizable sports drinks for individual professional athletes and other sports nutrition products. Starting in 2013, Gatorade began describing and marketing its products as “sports fuels” and registered the trademark “Gatorade The Sports Fuel Company” in 2016 with the United States Patent and Trademark Office (“PTO”). During the registration process, “Gatorade disclaimed the exclusive use of ‘The Sports Fuel Company’ after the PTO advised the company that the phrase was merely descriptive of its products.”

August 22, 2019

Design Patents Protect Spare Parts For Vehicles

By Overhauser Law Offices, LLC

This case, originally filed in the United States District Court for the Eastern District of Michigan on claims of patent infringement, was brought on appeal in the United States Court of Appeals for the Federal Circuit. The Court of Appeals issued an opinion affirming the district court’s summary judgment in favor of Defendant-Appellee, Ford Global Technologies, LLC (“Ford”), and against Plaintiff-Appellant, Automotive Body Parts Association (“Automotive”). The originally sealed opinion was issued on July 11, 2019 but was unsealed in full on July 23, 2019.

Ford owns U.S. Patent No. D489,299 (the “D’299 Patent”) and U.S. Patent No. D501,685 (the “D’685 Patent”) for “Exterior of Vehicle Hood” and “Vehicle Head Lamp”, respectively. These design patents were invented by artists that allegedly selected part designs for the Ford F-150 truck on based on aesthetic appearance alone and not a functional purpose. Automotive is comprised of a group of companies that distribute automotive parts.

Conflict between Automotive and Ford allegedly occurred when Ford accused several Automotive members of infringing the D’299 and D’685 Patents, among others, before the International Trade Commission (“ITC”). The administrative law judge in the ITC proceedings ruled that “‘respondents’ [invalidity] defense that the asserted patents do not comply with the ornamentality requirement of 35 U.S.C. § 171 has no basis in the law’ and that ‘there is no legal basis for respondents’ assertion of [unenforceability based on] either the patent exhaustion or permissible repair doctrines’”. The ITC action settled after the administrative law judge’s ruling.

August 16, 2019

Indiana Copyright Litigation: Columbus North High School’s Football Coach Bless and Bartholomew Consolidated School Corporation Sued for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Dr. Keith F. Bell (“Dr. Bell”) of Travis County, Texas, filed suit in the Southern District of Indiana alleging that Defendants, Bartholomew Consolidated School Corporation (“Bartholomew”) of Columbus, Indiana and Timothy Bless (“Bless”) of Bartholomew County, Indiana, infringed his rights in United States Copyright Registration Nos. TX 2,672,644 (the “‘644 Registration”) for “Winning Isn’t Normal” and TX 8,503,571 (the “‘571 Registration”) for “WIN Passage”. Dr. Bell is seeking actual damages, statutory damages, attorneys’ fees, costs, and any other relief the court deems proper.

Dr. Bell claims he has worked as an internationally recognized sports psychologist with over 500 athletic teams including Olympic and national teams for seven different countries. Per the complaint, Dr. Bell also participates as a speaker for coaching symposia both at the national and international level. Dr. Bell’s work also allegedly includes ten books and eighty articles he authored and published relating to sports performance and sports psychology.

According to the complaint, Dr. Bell wrote the book Winning Isn’t Normal in 1981 which included a particular passage Dr. Bell entitled the “WIN Passage” (the “Infringed Works”). After the publishing of the book in 1982, Dr. Bell allegedly registered Winning Isn’t Normal and the WIN Passage with the U.S. Copyright Office in 1989 and 2017, respectively. Dr. Bell claims he has spent substantial time and effort promoting and selling copies of Winning Isn’t Normal and continues to sell it through various websites and outlets while also offering licenses for those that wish to publish the WIN Passage or use it in any way.

August 14, 2019

Indiana Patent Litigation: Natural Alternatives, LLC and SNI Solutions, Inc. Seek Damages for Alleged Infringement of an Anti-Freezing and Deicing Composition and Method

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiffs, SNI Solutions, Inc. of Geneseo, Illinois and Natural Alternatives, LLC of Lexington, Kentucky originally filed suit in the Central District of Illinois, that has since been transferred to the Southern District of Indiana, alleging that Defendants, Univar USA, Inc. (“Univar”) of Downers Grove, Illinois and Road Solutions, Inc. of South Bend, Indiana infringed its rights in United States Patent No. 6,080,330 (the “‘330 Patent”) for “Anti-Freezing and Deicing Composition and Method”. Plaintiffs are seeking damages, attorneys’ fees, costs, and any other relief the court deems proper.

SNI Solutions allegedly develops, manufactures, and sells de-icing agents containing de-sugared sugar beet molasses (“DSBM”) including products covered by the ‘330 Patent (“Covered Products”). State and local governments allegedly utilize DSBM for road de-icing and commercial de-icing applications. Natural Alternatives claims it develops, manufactures, and sells DSBM and the Covered Products as it is the owner by assignment of the ‘330 Patent. SNI Solutions and Natural Alternatives claim they have maintained a licensing agreement for SNI to commercialize the ‘330 Patent since October 21, 2008.

According to the complaint, Univar is or was a direct competitor of the Plaintiffs for the sale of DSBM and that Univar intended at least some of the DSBM it sold was to be combined with materials covered by the ‘330 Patent. Plaintiffs claim that Univar entered into a Letter of Intent with Todd Bloomer, the inventor of the ‘330 Patent, for Univar’s manufacture, marketing, and sale of DSBM in April 2006. Univar allegedly distributed products throughout the United States and Canada advertising the products as being protected by the ‘330 Patent between April 2006 and October 2008.