Indiana Intellectual Property Law News

May 12, 2016

Indiana Trademark Litigation: Usage of “Hyperpure” Alleged to Infringe Hydrapure Trademark

Hammond, Indiana – A trademark attorney for Plaintiff NIBCO Inc. of Elkhart, Indiana commenced trademark infringement litigation in the Northern District of Indiana.

Defendant in the litigation is Legend Valve & Fitting, Inc. of Auburn Hills, Michigan. It is accused of infringing NIBCO’s HYDRAPURE trademark, which has been registered with the U.S. Patent and Trademark Office under Trademark Registration Nos. 4,296,125 and 4,314,186 in conjunction with the sale of metal pipe fittings.

Plaintiff alleges Defendant’s use of HYPERPURE to market its goods creates an identical commercial impression to Plaintiff’s HYDRAPURE trademark. Calling Defendant’s use “a reproduction, counterfeit, copy, or colorable imitation” of its own trademark, Plaintiff states that Defendant’s use of HYPERPURE will confuse consumers as to the source of the goods.

Plaintiff further contends that Defendant Legend chose the HYPERPURE mark in bad faith in an attempt to associate Defendant’s products with Plaintiff’s trademark and, in so doing, appropriate the goodwill that Plaintiff has built in the brand.

In this Indiana lawsuit, a trademark lawyer for NIBCO lists the following claims:

• Count I: Federal Trademark Infringement
• Count II: Federal Unfair Competition/False Designation of Origin
• Count III: Common Law Trademark Infringement
• Count IV: Common Law Unfair Competition

• Count V: Federal Trademark Dilution

NIBCO asks the court for equitable relief; damages, including punitive damages; costs and attorney fees.

May 11, 2016

Indiana Copyright Litigation: Attorney/Photographer Files Two New Infringement Lawsuits

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Photographer Richard Bell of McCordsville, Indiana, who is also both the filing attorney and Plaintiff, filed two new lawsuits in the Southern District of Indiana alleging infringement of two of his copyrighted photos, “Indianapolis Night Photo” and “Indianapolis Photo.” Bell states in his complaint that both photos have been registered with the U.S. Copyright Office under Registration No. VA0001785115.

Defendant in the first lawsuit, TeamSoft, Inc. of Middleton, Wisconsin is accused of infringing Bell’s “Indianapolis Night Photo,” while Defendant in the second lawsuit, Michael Patrick of Indianapolis, Indiana, has been accused of infringing Bell’s “Indianapolis Photo.”

The two federal complaints, which are similar to each other as well as to the previous copyright infringement lawsuits filed by Bell, each list a single count: copyright infringement and unfair competition. Both Defendants are accused of “willfully and deliberately” engaging in copyright infringement “with oppression, fraud, and malice.”

Bell seeks injunctive relief along with statutory damages, costs and attorney’s fees.

Practice Tip: We have blogged in the past about Bell’s prolific litigation. See:

• District Court Terminates Copyright Suit Over Photo; Plaintiff Appeals
• Remaining Copyright Defendants in Bell Lawsuit to be Dismissed
• Attorney/Photographer Sues Georgia Real Estate Company for Infringing Copyrighted Photo
• Sovereign Immunity May Take a Toll on Bell’s Latest Copyright Lawsuit
• Appellate Court Dismisses Copyright Appeal as Premature
• Bell Rings in the Holiday Weekend with a New Copyright Lawsuit
• Bell Files New Copyright Infringement Lawsuit
• Bell Sues Georgia-Based FindTicketsFast.com for Copyright Infringement
• Richard Bell Files Two New Copyright Infringement Lawsuits
• Court Prevents Copyright Plaintiff Bell from Outmaneuvering Legal System; Orders Bell to Pay Almost $34,000 in Fees and Costs
• Three Default Judgments of $2,500 Ordered for Copyright Infringement
• Court Orders Severance of Misjoined Copyright Infringement Complaint

• Richard Bell Files Another Copyright Infringement Lawsuit

May 10, 2016

Indiana Patent Litigation: Lippert Sues Alleging Infringement of Patented RV Components

By Overhauser Law Offices, LLC

South Bend, Indiana – Patent attorneys for Plaintiff Lippert Components Manufacturing, Inc. filed an infringement lawsuit against Defendants MORryde International, Inc. and MOR/ryde Inc. All parties are based in Elkhart, Indiana.

Plaintiff, a vendor of recreational vehicle components, alleges that Defendants have infringed U.S. Patent Nos. 6,182,401 (“‘401 Patent”), 6,176,045 (“‘045 Patent”), and 6,598,354 (“‘354 Patent”). These patents, all entitled “Retractable Room Support Mechanism,” have been issued by the U.S. Patent and Trademark Office.

Plaintiff specifically accuses Defendants of infringing the patents-in-suit directly, jointly, contributorily, and/or by inducement by making, using, selling, offering for sale, and/or importing Defendants’ “Angled Slide-Out Tube Frame” and “Forest River Slide-Out Frame.” Plaintiff contends that Defendants’ infringement has been willful and deliberate.

In this litigation, the following claims have been made:

• Count I: Infringement of U.S. Patent No. 6,182,401
• Count II: Infringement of U.S. Patent No. 6,176,045

• Count III: Infringement of U.S. Patent No. 6,598,354

Plaintiff seeks injunctive relief, damages and attorneys’ fees.

May 9, 2016

198 Trademark Registrations Issued to Indiana Companies in April 2016

By Overhauser Law Offices, LLC

The U.S. Trademark Office issued the following 198 trademark registrations to persons and businesses in Indiana in April 2016 based on applications filed by Indiana trademark attorneys:

Registration No.	Word Mark	Click To View
4942293	MFS	TSDR
4942292	MFS	TSDR
4943001		TSDR
4942998	UNPROHIBITED	TSDR
4932201	AMERICAN ALLEGIANCE	TSDR
4932200	AMERICAN TRADITION	TSDR
4932199	AMERICAN HERITAGE	TSDR
4937274	G-FORCE	TSDR

May 6, 2016

Indiana Trademark Litigation: Klipsch Alleges “Grey Market” Seller Infringed Klipsch Trademarks

By Overhauser Law Offices, LLC

Indianapolis, Indiana – An Indiana trademark lawyer for Plaintiff Klipsch Group, Inc. of Indianapolis, Indiana sued Defendant Steve Myers d/b/a HumanAudio in the Southern District of Indiana on allegations of trademark infringement and unfair competition.

Defendant HumanAudio, an eBay seller with its principal place of business in Studio City, California, is accused of offering “grey market” Klipsch products to the public. Klipsch contends that HumanAudio advertises “brand new” Klipsch audio products for sale via Defendant’s eBay store. However, Klipsch states, Defendant’s products are materially different from those purchased from an authorized distributor because the sale through Defendant’s unauthorized store voids the warranty that Klipsch normally provides to the original purchasers of its products. Klipsch also contends that HumanAudio removed the serial numbers on Klipsch goods and replaced them with fake serial numbers.

Klipsch alleges that Defendant has infringed three KLIPSCH trademarks: U.S. Trademark Registration Nos. 978,949; 2,917,215 and 3,863,511. In this Indiana federal lawsuit, the following claims are made:

• Count I: Federal Trademark Infringement in Violation of 15 U.S.C. § 1114

• Count II: Federal Unfair Competition in Violation of 15 U.S.C. § 1125

Plaintiff seeks equitable relief, damages, attorneys’ fees and costs.

May 5, 2016

Patent Office Issues 151 Patents To Indiana Citizens in April 2016

By Overhauser Law Offices, LLC

The U.S. Patent Office issued the following 151 patent registrations to persons and businesses in Indiana in April 2016, based on applications filed by Indiana patent attorneys:

	Patent No.	Title
1	D754,826	Faucet spout
2	D754,825	Faucet body
3	D754,823	Faucet handle
4	D754,821	Faucet base
5	D754,820	Faucet
6	D754,518	Drawer knob
7	9,325,052	Tunable cavity resonator having a post and variable capacitive coupling
8	9,324,476	Insulated winding wire
9	9,322,953	Energy absorbing materials

May 4, 2016

Indiana Trademark Litigation: RV Maker Asks Court to Settle Dispute over “Edge” Trademark

By Overhauser Law Offices, LLC

South Bend, Indiana – An Indiana trademark attorney for Plaintiff Heartland Recreational Vehicles, LLC of Elkhart, Indiana filed a declaratory judgment lawsuit in the Northern District of Indiana. Defendant is Universal Trailer Cargo Group, Inc., which also does business as Haulmark Trailers. Haulmark Trailers operates locations in Elkhart and Bristol, Indiana.

Plaintiff states that Defendant Haulmark has manufactured and sold race car trailers that are offered under the trademark THE EDGE. Recreational vehicles manufactured and sold by Plaintiff Heartland under the brand EDGE are alleged by Defendant to infringe upon Defendant’s trademark rights.

At issue in the litigation is Haulmark’s trademark, U.S. Trademark Registration No. 3,338,373 for the brand THE EDGE, which applies to “towage storage trailers.” Also at issue is Plaintiff’s pending trademark registration, Application No. 86/768,274 for the brand EDGE, as applied to “recreational vehicles, namely fifth wheels; recreational vehicles, namely toy haulers; recreational vehicles, namely travel trailers.”

While Heartland’s application was passed to publication without any objection by the U.S. Patent and Trademark Office’s trademark examining attorney, Haulmark later informed Heartland that it was opposing the registration of EDGE as applied to Heartland’s goods. A trademark lawyer for Haulmark threatened litigation for “federal claims for trademark infringement” if Heartland did not cease and desist use of the EDGE trademark.

Plaintiff Heartland seeks a declaratory judgment, stating that Haulmark’s threat of litigation has made the dispute ripe for judicial resolution. It asks the court to conclude, given “the actual use of the term EDGE by the parties, the differences between the goods and the markets for the goods of each party to which that term is applied, as well as the price of the respective goods and the channels of trade for each party’s goods,” that there is no likelihood of consumer confusion arising from Heartland’s concurrent use of EDGE as a trademark for its goods.

Heartland asks the court to declare that its use of the term EDGE, as applied to its products, is not an infringement upon any of UTC’s rights and that Haulmark’s THE EDGE trademark should not be construed so broadly as to cover recreational vehicles.

May 3, 2016

Indiana Cable/Satellite Litigation: Three Local Eateries Sued for Interception of Championship Fight

By Overhauser Law Offices, LLC

Indianapolis, Indiana – An intellectual property attorney for J & J Sports Productions, Inc. of Campbell, California filed three new lawsuits in the Southern District of Indiana, each alleging interception.

Defendants in the three lawsuits are alleged to have unlawfully intercepted and broadcasted a championship fight, Floyd Mayweather, Jr vs. Marcos Rene Maidana, WBC Welterweight Championship Fight Program, on May 3, 2014. J & J Sports states that it is the exclusive domestic commercial distributor of this program.

The first lawsuit was filed against Luxe Lounge, Inc. and John Hawkins, an officer of the company. Both Defendants were sued doing business as Luxe Lounge, which operates in Indianapolis. Hawkins was also sued individually.

The second lawsuit lists as Defendants Rest Mex, Inc. as well as Samuel Barrera and Benito Brito Flores, both officers of the company. All Defendants were sued doing business as Taqueria Jalisco of Indianapolis, Indiana. Barrera and Flores were also sued individually.

The final lawsuit was filed against Don Marcos, Inc. and Jose Diaz-Chavez, an officer of the Indianapolis corporation. Both Defendants were sued doing business as Don Marcos Restaurante and Taqueria. Diaz-Chavez was also sued individually.

The three complaints, filed by intellectual property counsel for J & J Sports, are similar, each listing three claims:

• Count I: Violation of Title 47 U.S.C. Section 605
• Count II: Violation of Title 47 U.S.C. Section 553

• Count III: Conversion

J & J Sports asks the Indiana court for damages, attorneys’ fees and costs.

Practice Tip: The interception claim has a two-year statute of limitations, which explains why these complaints were filed on April 29, 2016, almost exactly two years after the broadcast date of the program at issue. J & J Sports and similar plaintiffs are frequent litigants, filing thousands of lawsuits per year, usually seeking a settlement instead of litigation. It appears that many of them are also filed near the eve of the two-year anniversary of the broadcast of the program at issue in each individual lawsuit.

May 2, 2016

Indiana Trademark Litigation: Federal Lawsuit Filed Over Use of “Co-op” Trademark

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Indiana trademark attorneys for Countrymark Refining and Logistics, LLC of Indianapolis, Indiana filed a trademark lawsuit against Coop Fuels Inc. of Morrisville, North Carolina. The complaint asserts direct and contributory trademark infringement, false designation of origin, and unfair competition arising under the Lanham Act as well as claims under Indiana law.

At issue are two trademarks owned by Countrymark, U.S. Registration Nos. 2,657,529 and 2,679,308 for the CO-OP trademark, which have been registered with the U. S. Patent and Trademark Office.

Defendant Coop Fuels is alleged to have infringed these trademarks by using “coop” to market its competing products.

Additionally, Countrymark contends that Coop Fuels has also knowingly induced and materially contributed to its retail partners’ unauthorized adoption and use of Countrymark’s trademarks.

In this lawsuit, Indiana trademark lawyers for Countrymark list the following allegations of wrongdoing:

• Count I: Infringement of Federally Registered Marks – 15 U.S.C. § 1114
• Count II: False Designation of Origin and Unfair Competition – 15 U.S.C. § 1125(a)
• Count III: Contributory Trademark Infringement
• Count IV: Common Law Unfair Competition
• Count V: Deception – Indiana Code § 35-43-5-3(a)(6)
• Count VI: Conversion – Indiana Code § 35-43-4-3

• Count VII: Indiana Crime Victim’s Relief Act- Indiana Code § 35-24-3-1

Countrymark asks the federal court for injunctive relief, actual and treble damages, attorneys’ fees and costs.

April 28, 2016

Michael G. Gotsch, Sr. selected as Magistrate Judge for the South Bend Division of the Northern District of Indiana

By Overhauser Law Offices, LLC

On April 26, 2016 United States District Court for the Northern District of Indiana announced that Michael G. Gotsch, Sr. will replace retiring judge Christopher A. Nuechterlein.

Chief Judge Philip P. Simon said “Gotsch has served as a Judge for the State of Indiana for nearly 12 years and has demonstrated the demeanor, intellect, and practical approach to problem solving that will make him an outstanding magistrate judge.”

A magistrate’s duties include presiding over preliminary proceedings in intellectual property and other cases. Judges may request that a magistrate judge handle pre-trial motions and any settlement attempts.