Indiana Intellectual Property Law News

September 6, 2018

Sweeney to Fill Vacancy in Southern District

Indianapolis, Indiana – Partner from Barnes & Thornburg, James Sweeney, has been unanimously voted to fill the vacancy created by Judge Sarah Evans Barker in the Southern District of Indiana. In November 2017, Sweeney was nominated to fill the vacancy by President Donald Trump. Sweeney will be the first judge to join the U.S. District Court for the Southern District of Indiana in eight years.

Prior to attending law school, Sweeney earned a B.S. with merit from the United States Naval Academy. He then graduated from the University Notre Dame Law School magna cum laude in 1996. Sweeney subsequently served as a judicial law clerk for the Honorable John Daniel Tinder of the U.S. District Court of the Southern District and for the Honorable James L. Ryan of the U.S. Court of Appeals for the Sixth Circuit before joining Barnes & Thornburg.

September 5, 2018

Patent Office Issues 145 Patents To Indiana Citizens in August 2018

By Overhauser Law Offices, LLC

The U.S. Patent Office issued the following 145 patent registrations to persons and businesses in Indiana in August 2018, based on applications filed by Indiana patent attorneys:

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.

	Patent No.	Title
1	D0827210	Combination of a door and door frame of an animal enclosure
2	D0827105	Valve
3	D0827104	Valve
4	D0827103	Valve
5	D0827102	Valve

September 4, 2018

164 Trademark Registrations Issued to Indiana Companies in August 2018

By Overhauser Law Offices, LLC

Overhauser Law Offices the publisher of this site, assists with US and foreign trademark searches, trademark applications and assists with enforcing trademarks via infringement litigation and licensing.

Registration No.	Word Mark	Click To View
5539152	COMPETITIVE STRUCTURED BLOCK PLAY	TSDR
5551465	RANGEXPERTS	TSDR
5550999	LIL BUCKS	TSDR
5550790	MOVING FORWARD	TSDR
5550600	MOVING FORWARD	TSDR
5550594	PRECISION PRODUCTS GROUP INC.	TSDR

August 31, 2018

Indiana Patent Litigation: Indiana Corporation Sued for Patent Infringement Involving Programmable Security Systems

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, InVue Security Products Inc. of Charlotte, North Carolina, filed suit in the Southern District of Indiana alleging that Defendant, Mobile Tech, Inc. d/b/a Mobile Technologies Inc. and MTI, formerly known as Merchandising Technologies, Inc. of Hillsboro, Oregon, but incorporated in Indiana, infringed its rights in United States Patent No. 10,062,266, (the “‘266 patent”) for a “Programmable Security System and Method for Protecting Merchandise”. Plaintiff is seeking a permanent injunction, damages, judgment awarding InVue a reasonable royalty, prejudgment interest, and other relief the Court may deem just and proper.

Chief executive officers for both parties met in person on April 11, 2018 to discuss the defendant’s Intellikey 3.0, its Gateway products, and other potentially infringing items “Accused Items”. The plaintiff provided defendant with a copy of at least Claim 1 of the pending ‘266 patent, informing them that the Intellikey 3.0 would infringe the claims of the ‘266 patent when issued. The application for the ‘266 patent published on August 16, 2018 and the ‘266 patent issued on August 28, 2018, just before the Complaint was filed.

The first cause of action in the Complaint is for direct infringement of the ‘266 patent as MTI manufactures, offers for sale, sells, imports, and/or uses the Accused Items. Second, contributory infringement of the ‘266 patent is alleged as the Accused Items are not staple articles of commerce, are not suitable for a substantial non-infringing use, and are especially made or adapted for use in an infringement of the ‘266 patent. Third, infringement by inducement because the defendant sells the Accused Items to customers with the intent that they will use and operate them in a manner that infringes the ‘266 patent. Finally, plaintiffs claim that defendants should be held liable for pre-issuance damages as they were aware and had actual notice of the patent application after it published.

August 24, 2018

Indiana Copyright Litigation: Attorney Bell Sues Another for Copyright Infringment

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 Defendant, Joan Mattox, infringed his rights to the “Indianapolis Photo” registered on August 4, 2011 with the U.S. Copyright Office, Registration No. VA0001785115. Plaintiff is seeking actual and statutory damages, costs, reasonable attorney’s fees and other relief deemed just and proper.

Bell has filed many copyright infringement cases on his own behalf based on his copyrights. See:

In this case, Bell claims that Mattox created a website to promote her business in the Indianapolis area with the domain name of http://www.readymadestaffing.com/. The Defendant then used the Indianapolis Photo on the website to garner the attention of prospective customers. It is alleged that the Indianapolis Photo was displayed on the webpage on or about December 15, 2015 and was still being displayed as of the filing of the Complaint. Bell is suing for copyright infringement and vicarious liability for each third-party download of the Indianapolis Photo from the Mattox’s website. Bell claims that Mattox falsely claimed that Ready Made Resources owned all of the photos and images on their website and used the Indianapolis Photo commercially without paying for the use or obtaining authorization from the Plaintiff. Further, Bell alleges that the Defendant refuses to pay damages for the unauthorized use and has not agreed to be enjoined from further use of the Indianapolis Photo.

It is alleged that the Indianapolis Photo was displayed on the webpage on or about December 15, 2015 and was still being displayed as of the filing of the Complaint. Bell is suing for copyright infringement and vicarious liability for each third-party download of the Indianapolis Photo from the Mattox’s website. Bell claims that Mattox falsely claimed that Ready Made Resources owned all of the photos and images on their website and used the Indianapolis Photo commercially without paying for the use or obtaining authorization from the Plaintiff. Further, Bell alleges that the Defendant refuses to pay damages for the unauthorized use and has not agreed to be enjoined from further use of the Indianapolis Photo.

August 21, 2018

Indiana Copyright Litigation: Attorney Bell’s Copyright Infringement Case Against a New York Publication Company Dismissed Due to Lack of Jurisdiction

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorney and Photographer Richard N. Bell of McCordsville, Indiana filed suit in the Southern District of Indiana alleging that Defendant, Halcyon Business Publications, Inc., of New York infringed his “Indianapolis Photo” which has been registered with the United States Copyright Office as Registration No. VA0001785115. After review of the Defendant’s Motion to Dismiss for Lack of Jurisdiction which was filed on December 29, 2017 the court granted the Motion to Dismiss on May 24, 2018.

Bell, who has brought many similar lawsuits for infringement of his Indianapolis Photo, initially filed this case on November 29, 2017 alleging violations of the Lanham Act and copyright infringement. Halcyon claimed that the Court lacked personal jurisdiction over the company as they do not maintain any offices in the state, have no employees in the state, and have no assets in the state of Indiana. They did admit that they hired one Indiana resident as an independent contractor to write for their publication, but that contractor did not write the article that utilized the Indianapolis Photo. Further, the total amounts of advertising sold to Indiana companies by Halcyon amounted to 3.26% and 4.55% in 2016 and 2017, respectively, and Indiana subscribers to the publication comprised less than 3% of their total subscribers.

Here, the Court must only look at whether the personal jurisdiction is consistent with the Federal Due Process Clause as Indiana’s long-arm statute is analyzed under this issue. For this, a defendant must have “minimum contacts” with the forum state and purposefully avail themselves “of the privilege of conducting activities within the forum [s]tate, thus invoking the benefits and protections of its laws.” Asahi Metal Indus. Co. v. Super. Ct. of Cal., 480 U.S. 102, 109 (1987). This allows a defendant to reasonably anticipate being brought into a forum in a foreign jurisdiction.

August 20, 2018

Northern District Appoints New Magistrate Judge

By Overhauser Law Offices, LLC

Hammond, Indiana – Previous United States Assistant Attorney Joshua P. Kolar will fill the vacancy made by Magistrate Judge Paul R. Cherry as Northern District of Indiana Magistrate Judge. Kolar has been an Assistant U.S. Attorney in Hammond since 2007 and was among forty-three applicants for the judgeship. The judges on the court selected Kolar from the five finalists that made it through the Magistrate Judge Merit Selection Committee.

Kolar received his undergraduate degree from Northwestern University and attended law school at the Northwestern University School of Law. As a magistrate judge, his main duties will include conducting preliminary proceedings in criminal cases and presiding over hearings and trials for civil cases and misdemeanor cases. He may also be requested to handle pretrial motions and attempts to resolve civil matters without trial by the district judges.

August 16, 2018

Indiana Copyright Litigation: Attorney Richard Bell Sues Local Realtor for Copyright Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorney Richard Bell of McCordsville, Indiana filed suit in the Southern District of Indiana alleging that Defendant, Amy Polston, infringed his rights to the “Indianapolis Photo” registered on August 4, 2011 with the US Copyright Office, Registration No. VA0001785115. Plaintiff is seeking actual and statutory damages, attorneys’ fees, and any other relief as is just and proper.

Bell, who has filed numerous similar cases, took the Indianapolis Photo in March 2000. He subsequently posted the photo online in August 2000 and registered the photo with the US Copyright Office nearly 11 years later. Bell alleges that Polston used the Indianapolis Photo on a website she created to promote and advertise her business in the Indianapolis area. He further alleges that Polston falsely claimed to Trulia.com, the profile host, that she owned the copyrights of all images and photographs used on her profile including the Indianapolis Photo. Bell asserts that Polston began using the Indianapolis Photo on her website beginning in 2014 without paying for the use or licensing the photo from him.

Plaintiff has filed this suit as Polston has refused to pay for the unauthorized use and has not agreed to be enjoined from using the Indianapolis Photo. As such, Bell claims that Polston is vicariously liable for each downloaded copy of the Indianapolis Photo by each third-party that downloaded it from her website. He also claims that she is liable for all profits resulting from these downloads and copyright infringement, even if she did not know that any use of the Indianapolis Photo would infringe Bell’s copyright.

August 15, 2018

Indiana Copyright Litigation: Indiana Artist Files Copyright Infringement Case Over Unauthorized Derivative Works

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Michel Keck of Jefferson Township, Owen County, Indiana, filed suit in the Southern District of Indiana alleging that Defendants, John Mark Lawrence d/b/a Mark Lawrence Art Gallery of Alpharetta, Georgia, and DOES 1 through 25 infringed numerous pieces of artwork. Plaintiff is seeking judgment, actual damages, statutory damages, cost of litigation, and reasonable attorney’s fees.

Keck is a successful abstract and mixed media artist. She opened an online art gallery and her own fine art publishing company in 2006. Over 1,500 of her original paintings had sold by the end of 2006 to art collectors throughout the world. Keck has registered 22 original paintings (the “Works”) with the United States Copyright Office.

Defendant Lawrence gave an interview in 2009 stating that he creates his art by digitally manipulating existing images using Photoshop and other such computer programs. In April 2014, Keck was approached by an online distributor, Framed Canvas Art, and was given Lawrence’s contact information as a reference. In response to Keck’s email seeking information about the distributor, Lawrence stated, “I just took a look at your art – wow! You have a new fan.” Over three years later in September 2017, Keck found numerous art pieces for sale attributed to Lawrence that appeared to be unauthorized derivatives of her Works. It looked as though Lawrence would take one of Keck’s Works and then mirror or rotate it before running it through a computerized filter (creating “Unauthorized Derivative Works”).

August 13, 2018

Indiana Copyright Litigation: Dr. Keith Bell Files Suit Against an Indiana Resident and USA Volleyball for Copyright and Trademark Infringement

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Keith F. Bell, Ph.D. of Texas filed suit in the Northern District of Indiana alleging that Defendants, Lloy Ball, of Angola, Indiana, and USA Volleyball of Colorado Springs, Colorado infringed his rights in Copyright Registration Number TX-0002-6726-44 titled “Winning Isn’t Normal” (the “Infringed Work”) and his rights in Trademark Registration Number 4630749. Plaintiff is seeking judgment awarding damages, actual damages, profits, statutory damages, attorneys’ fees, injunctive relief, pre-judgement, and post judgment interest.

The Infringed Work was first published in 1982 and registered with the U.S. Copyright Office in 1989. Dr. Bell continues to offer for sale and market his book and derivative works such as posters and t-shirts with a specific passage known as the “WIN Passage”. He has offered and continues to offer licenses to those that may wish to publish or utilize the WIN Passage. The word mark “WINNING ISN’T NORMAL” has also been registered with the United States Patent and Trademark Office with Registration No. 4630749 for printed matter.

Dr. Bell alleges that Defendant Ball posted a representation of the WIN Passage on his Twitter account on or about November 12, 2015. This post received at least 51 “retweets” and 201 “likes” from Ball’s over 2,000 followers. Dr. Bell also claims that Defendant USA Volleyball posted a representation of the WIN Passage on their Twitter account on or about November 20, 2015 that included a “retweet” of the post by Defendant Ball. This post received at least 30 “retweets” and over 7,000 “likes” from USA Volleyball’s over 123,000 followers. Cease and desist letters were sent to Ball and USA Volleyball on July 15, 2016 and April 21, 2017, respectively. Both Defendants removed their posts shortly after the letter was sent to Ball, automatically removing all retweets of the post. While the Defendants have acknowledged liability to the Plaintiff, they have not agreed to enter into a settlement agreement to protect the Plaintiff’s rights and compensate him for his injuries, leading to this suit for both copyright and trademark infringement.