Indiana Intellectual Property Law News

April 2, 2019

Apollo Design Technology, Inc. of Fort Wayne Sued for Copyright Infringement

Fort Wayne, IN – Rich Iwasaki of Beaverton, Oregon filed suit alleging Apollo Design Technology, Inc. (“Apollo”) of Fort Wayne, Indiana infringed his copyrighted work, Registration No. VA 2-132-257. The Complaint alleges Iwasaki’s copyrighted work, which is a photograph of skyscrapers in Chicago, Illinois (the “Photograph”) was registered by the U.S. Copyright Office on November 28, 2018. Iwasaki is seeking actual damages, Apollo’s profits, alternatively statutory damages, costs, attorneys’ fees, punitive damages, and any other relief the court may deem proper.

Iwasaki claims he took the Photograph, added his watermark to the Photograph, and that he has always been the sole owner of the Photograph and the copyright thereto. The complaint alleges Apollo published an article on its website that included the Photograph entitled Prepared to be Wowed – the 2018 DesignScapes Product Line Has Arrived! Iwasaki claims Apollo did not have a license to publish the Photograph, nor did it have his consent or permission to use his Photograph on its website.

The Complaint alleges copyright infringement against Apollo pursuant to the Copyright Act, 17 U.S.C. §§ 106 and 501, and damages for infringement pursuant to 17 U.S.C. § 504(b). Iwasaki also claims Apollo violated 17 U.S.C. § 1202(b) by falsifying, removing, or altering his watermark and copyright management information identifying him as the photographer. Iwasaki claims he may elect to recover the actual damages under 17 U.S.C. § 1202 or statutory damages of at least $2,500 up to $25,000 per violation of 17 U.S.C. § 1202, pursuant to 17 U.S.C. § 1203(c)(3).

April 1, 2019

225 Trademark Registrations Issued to Indiana Companies in March 2019

By Overhauser Law Offices, LLC

The U.S. Trademark Office issued the following 225 trademark registrations to persons and businesses in Indiana in March 2019 based on applications filed by Indiana trademark attorneys:

Registration No.	Word Mark
5,711,810	HOPS N HONEY
5,709,777	CNO FINANCIAL GROUP INVESTED IN GIVING BACK
5,709,755	CAULKOLOGIST
5,709,754	EVERKEM
5,709,678	#MOREFORMBC

April 1, 2019

Patent Office Issues 166 Patents To Indiana Citizens in March 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 166 patent registrations to persons and businesses in Indiana in March 2019, based on applications filed by Indiana patent attorneys:

	Patent No.	Title
1	D0844220	Basketball light raising and lowering apparatus
2	10,244,478	Systems and methods for controlling electronically operable access devices using WI-FI and radio frequency technology
3	10,243,397	Data center power distribution
4	10,243,355	Fault identification and isolation in an electric propulsion system
5	10,243,254	Self adjusting antenna impedance for credential detection in an access control system

March 29, 2019

Richard Bell Files Three New Copyright Infringement Lawsuits

By Overhauser Law Offices, LLC

Indianapolis, IN – Richard Bell of McCordsville, Indiana filed three separate copyright infringement suits against Subud Greater Seattle (“Subud”), Eli Lilly and Company (“Lilly”), and Quickbook Modeling Agency (“Quickbook”). Bell claims each of the Defendants infringed his photograph, the “Indianapolis Nighttime Photo”, Registration No. VA0001785115, registered with the U.S. Copyright Office on August 4, 2008. All three suits were filed in the Southern District of Indiana and are seeking actual and/or statutory damages, costs, reasonable attorneys’ fees, and any other relief the court deems proper.

All three complaints state that Bell took his photograph of the Indianapolis skyline in March 2000. He claims his photograph was first published on his Web shots account on August 29, 2000. Bell also maintains that his photograph has been used in advertisements to the point that it is identifiable by the public as being his work. After registering his photograph with the U.S. Copyright Office, Bell has filed many lawsuits for infringement of the Indianapolis Nighttime Photo.

Bell further alleges that Defendant Subud conducts business in Indianapolis, Indiana and published his photograph on its website to attract customers and promote a convention taking place in Indianapolis. His Complaint asserts that while Bell discovered Subud’s use of his photograph on April 6, 2018 using Google images, Subud actually published the photograph in 2016. He claims not only did Subud not disclose the source of the Indianapolis Nighttime Photo, it willfully, recklessly, and falsely claimed to own the copyrights of every image and photograph on its website.

March 20, 2019

Richard Bell Sues Three New Defendants for Copyright Infringement of His Indianapolis Nighttime Photo

By Overhauser Law Offices, LLC

Indianapolis, IN – Richard Bell of McCordsville, IN filed three separate copyright infringement suits in the Southern District of Indiana against GSE Audio Visual (“GSE”), Christy Joy Caley (“Caley”), Maryco Cleaning Service, Inc. (“Maryco”), and National Swimming Pool Foundation (“National Swimming”), alleging that each infringed Copyright Number VA0001785115. The copyrighted work, “Indianapolis Nighttime Photo,” was registered by the U.S. Copyright Office on August 4, 2011. Bell is seeking permanent injunctions, both actual and statutory damages, costs, and attorneys’ fees against Defendants in all three actions.

Plaintiff is both a photographer and attorney who is well known for filing copyright infringement lawsuits on his own behalf. GSE is alleged to have utilized the Indianapolis Nighttime Photo on its website to promote and advertise its business within Indianapolis. Bell claims to have discovered this unauthorized use on April 5, 2018.

In the Complaint filed against Maryco, Bell states it authorized Caley to create a website to promote its business. Bell further claims that Caley downloaded the “Indianapolis Nighttime Photo” and posted it on Maryco’s website without his permission. Bell discovered the use of the photo through a Google image search in December 2018, however, he asserts that unauthorized use began in 2013.

March 19, 2019

Jeff Bachner Sues USA Halloween Planet, Inc. for Copyright Infringement of His New Year’s Eve Fireworks Photograph

By Overhauser Law Offices, LLC

Fort Wayne, IN – Jeff Bachner of Brooklyn, New York, by counsel, filed a lawsuit alleging USA Halloween Planet, Inc. of Indianapolis, Indiana infringed U.S. Copyright Registration No. VA 2-110-419 (the “Copyrighted Work”). The Copyrighted Work is entitled “01.01.13, New Years Eve, Bachner.jpg” and was registered by the U.S. Copyright Office July 12, 2018. Plaintiff is seeking damages including punitive damages, costs, expenses, and attorneys’ fees.

Bachner licensed his Copyrighted Work to the New York Daily News on or about January 1, 2013 for their article titled Taylor Swift, Psy, Mayor Bloomberg help New Yorkers ring in 2013. Plaintiff was given proper credit for his Copyrighted Work appearing in the article. Defendant ran an article on their website titled Goodbye 2012 . . . Hello 2013, that utilized the Copyrighted Work without a license, permission, or consent to publish it from Bachner. Plaintiff is claiming copyright infringement and alteration or removal of identifying copyright management information. Continue reading

March 18, 2019

Indiana Based Delta Faucet Company Sues ALDI, Inc. for Patent Infringement

By Overhauser Law Offices, LLC

Indianapolis, IN – Attorneys for Delta Faucet Company (“Delta”) of Indianapolis, Indiana filed a lawsuit against ALDI, Inc. (“Aldi”) of Batavia, Illinois alleging that Aldi infringed U.S. Patent No. 7,360,723 (the “’723 Patent”). The ‘723 Patent, titled “Showerhead system with integrated handle,” was issued by the U.S. Patent and Trademark Office on April 22, 2008. Plaintiffs are seeking a permanent injunction, damages including treble damages, attorneys’ fees, and any other relief deemed proper by the Court.

Delta alleges that Aldi’s “Easy Home 2 in 1 Showerhead Kit” infringes at least one claim of the ‘723 Patent. Plaintiff has an exclusive license to the ‘723 Patent from Sidus Technologies and therefore has the right to sue for the infringement of the patent. Delta is seeking damages including reasonably royalties pursuant to 35 U.S.C. § 154(d). Further, Delta is claiming Aldi’s willful patent infringement justifies treble damages under 35 U.S.C. § 284 and attorneys’ fees under 35 U.S.C. § 285.

March 14, 2019

Supreme Court Delineates What Costs May Be Recovered In Copyright Infringement Litigation

By Overhauser Law Offices, LLC

Washington D.C.- Attorneys for Oracle USA, Inc. and Oracle International Corporation (collectively “Oracle”) of Colorado and California, respectively, filed suit in the District Court of Nevada alleging that Rimini Street, Inc. and Seth Ravin, both of Nevada, infringed the copyrights for Oracle Software and Technology, which have been registered by the U.S. Copyright Office. A jury awarded damages to Oracle upon finding that Rimini had indeed infringed Oracle’s copyrights. The District Court awarded Oracle additional fees and costs, which included $12.8 million dollars for litigation expenses including costs for expert witnesses, e-discovery, and jury consulting. After the award of additional fees and costs was affirmed by the U.S. Court of Appeals for the Ninth Circuit, the U.S. Supreme Court held the additional costs were not appropriate under the Copyright Act.

The Ninth Circuit recognized that in granting the additional damages, they were covering expenses not included in the six categories of costs that the federal statutes, 28 U.S.C. §§ 1821 and 1920 authorize. However, they affirmed the District Court’s award based on the Copyright Act giving district courts discretion to award “full costs” under 17 U.S.C. § 505. The Supreme Court held that while the “term ‘full’ is a term of quantity or amount; it does not expand the categories or kinds of expenses that may be awarded as ‘costs’ under the general costs statute.” Therefore, Oracle was not entitled to the additional $12.8 million dollar award for litigation expenses outside of the six statutory categories.

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March 7, 2019

SCOTUS Rules That Registration Required to File Copyright Suit

By Overhauser Law Offices, LLC

Washington D.C.– The United States Supreme Court has ruled to affirm the United States Court of Appeals for the Eleventh Circuit’s decision against the Petitioner, Fourth Estate Public Benefit Corp. (“Fourth Estate”) of Delaware. The Petitioner originally filed a copyright infringement lawsuit in the Southern District of Florida, alleging that Wall-Street.com, LLC (“Wall-Street”) of Florida, infringed over 200 articles pending copyright registration.

Fourth Estate filed suit after Wall-Street failed to remove Fourth Street’s licensed works from its news website after Wall-Street canceled the Parties’ licensing agreement. Petitioner had filed to register its articles with the Copyright Office, but the articles had not been registered at the time the action commenced. Pursuant to 17 U.S.C. § 411(a), the District Court dismissed the complaint and the Eleventh Circuit affirmed holding there is no right to civil action for infringement of a copyright in the United States until registration has occurred, and merely filing an application for registration does not meet the registration burden under the statute. While the Register of Copyrights did refuse registration of the articles at issue in this case after the Eleventh Circuit Decision, that was not a factor in this decision.

An author gains rights including the right to reproduce, distribute, and display their work immediately upon the creation of the work pursuant to 17 U.S.C. § 106. However, generally before filing an infringement claim in court, the claimant must comply with the registration requirements of § 411(a). The exceptions to that rule are for those works that are vulnerable to predistribution infringement, typically movies or musical compositions, which are not found here. In this case, the Court had to decide if registration has been made pursuant to § 411(a) when the application, materials, and fee were submitted, or when the registration was granted by the Copyright Office. The Supreme Court in affirming the Eleventh Circuit’s Decision held that “registration has been made” under § 411(a) when the registration is granted by the Register of Copyrights after examination of a properly filed application.

March 7, 2019

Indiana Patent Litigation: Indiana Craft Company Sued for Patent Infringement

By Overhauser Law Offices, LLC

South Bend, Indiana – Attorneys for Plaintiff, Ellison Educational Equipment of California, filed suit in the Northern District of Indiana alleging that Defendants, Heartfelt Creations, Inc. and DOES 1-10 of Goshen, Indiana, infringed its rights in the United States Patent No. 9,079,325 (the ‘325 Patent). Plaintiff is seeking a permanent injunction, punitive damages, compensatory damages, attorneys’ fees, and costs.

Ellison was founded in 1977 by a husband and wife who designed the first hand-operated die-cutting machine. Plaintiff has continued to provide innovations in the educational and craft markets ever since and even launched a new craft brand, Sizzix® in 2001. On July 15, 2011, Ellison filed a provisional patent application for a “Chemical-Etched Die Having Improved Registration Means.” The ‘325 Patent was issued stemming from the provisional patent application on July 14, 2015.

Heartfelt is alleged to have created patterns that are turned into chemically-etched dies and are used in conjunction with the method taught by the ‘325 Patent. Further, the company gives demonstrations on how to use the product in violation of the ‘325 Patent and teaches the public how to infringe the ‘325 Patent on Heartfelt’s YouTube channel. Ellison sent a cease and desist letter to Heartfelt based on Ellison’s beliefs Heartfelt was infringing the ‘325 Patent on December 21, 2018.

Plaintiff is claiming direct patent infringement pursuant to 35 U.S.C. § 271(a) with enhanced damages under 35 U.S.C. § 284. Second, it is claiming inducement of infringement pursuant to 35 U.S.C. § 271(b). Finally, Ellison is claiming contributory infringement pursuant to 35 U.S.C. § 271(c).