The U.S. Trademark Office issued the following 164 trademark registrations to persons and businesses in Indiana in December 2015 based on applications filed by Indiana trademark attorneys:
| Registration No. | Word Mark | Click To View | |
| 4877757 | PERSONALIZING THE HEALTHCARE EXPERIENCE | VIEW | |
| 4877580 | HT | VIEW | |
| 4877515 | GRATITUDE | VIEW | |
| 4877440 | DESKINS RAPIDFLOC MIXER | VIEW | |
| 4877311 | VIEW | ||
| 4878790 | GRAND RESERVE | VIEW |
Fort Wayne, Indiana – District Judge Jon DeGuilo held that prior rights to the Stratotone trademark were abandoned and that the subsequent user held the superior right to the trademark.
This litigation arose as a result of a federal trademark complaint, filed in the Northern District of Indiana by Plaintiff Darryl Agler, doing business as The Stratotone Guitar Company of Fort Wayne, Indiana. The Defendant is Westheimer Corporation of Northbrook, Illinois. In the complaint, Agler asserted that Westheimer had infringed the trademark “STRATOTONE” (the “Stratotone trademark”), Trademark Registration No. 3,986,754, which has been issued by the U.S. Patent and Trademark Office.
The claims listed in Agler’s complaint were:
• Count I: Federal Unfair Competition and False Designation of Origin
• Count II: Federal Trademark Infringement
• Count III: Federal Trademark Counterfeiting
• Count IV: Common Law Unfair Competition and Trademark Infringement
• Count V: Unjust Enrichment
• Count VI: Conversion
• Count VII: Deception• Count VIII: Indiana Crime Victim’s Relief Act
Westheimer counterclaimed, asserting that Agler was infringing on its rights in the Stratotone trademark as well as an additional trademark for “Atom.”
In this opinion, Judge DeGuilo ruled on Agler’s motion for summary judgment on counts I through IV as well as Agler’s motion for summary judgment on all of Westheimer’s counterclaims.
The court first addressed the Stratatone trademark. Agler asserted, and Westheimer conceded, that the Stratatone mark was protected and that Westheimer’s use of the mark was likely to cause confusion. The question for the court was which party had superior rights to the mark, as determined by whether Agler or Westheimer had priority to the trademark. That priority, in turn, was determined by who had established and maintained the earliest claim to the trademark.
It was undisputed that Agler had filed an “intent-to-use” application to register the Stratotone mark on March 7, 2006. Westheimer claimed that it had acquired rights that predated Agler’s 2006 application through its 2009 purchase of trademark rights from Harmony Industries, a third party that had used the Stratotone trademark at least as early as 2001.
The court, however, reviewed the testimony of those involved with Harmony Industries and found that Harmony Industries had both ceased to use the trademark and had demonstrated no intent to use it for more than four years starting at least January 1, 2003. The holder of a trademark has only three years to formulate its intent to resume use before that trademark is presumed abandoned. Thus, Harmony Industries was held to have abandoned the trademark. In turn, because Harmony Industries had no trademark rights to convey in the Stratotone mark, Westheimer acquired none. Consequently, Agler was held to have an earlier priority date and, thus, superior rights to the trademark. The court granted Agler’s motion with respect to his claims, and Westheimer’s counterclaims, regarding the Stratotone trademark.
Regarding the Atom trademark, the court concluded that it did not have sufficient evidence to determine that Agler had acquired priority. It thus denied Agler’s motion for summary judgment with respect to the claims involving the Atom trademark.
South Bend, Indiana – Indiana trademark attorneys for Plaintiff Barrington Music Products, Inc. of Niles, Michigan filed a trademark infringement lawsuit in the Northern District of Indiana. The Defendants in the litigation are Guitar Center Stores, Inc. of Westlake Village, California; Music & Arts Centers of Bel Air, Maryland, which is owned by Guitar Center; and Eastman Music Company of Pomona, California.
Plaintiff Barrington Music Products offers musical instruments, specifically featuring its “Roy
Benson” and “L.A. Sax” lines. Defendant Guitar Center has been in business more than 50 years and advertises itself as “the world’s largest retailer of guitars, amplifiers, drums, keyboards, recording, live sound, DJ, and lighting equipment.” It has more than 260 stores across the United States. Defendant Music & Arts offers musical instrument for sale, as well as offering repairs, rentals and instruction at its various locations nationwide. Defendant Eastman Music Company, which offers musical instruments globally, has been in business for more than 20 years.
The trademarks at issue in the lawsuit are U.S. Trademark Registration Nos. 3,831,402 and 3,831,403. They have been registered with the U.S. Patent and Trademark Office and cover VENTO both as a standard character trademark and as a stylized trademark.
Defendants are accused of trademark infringement, trademark dilution by blurring, unfair competition via passing off and trade name infringement of the VENTO trademark due to their marketing of wind instruments under the name “Ventus,” which means “wind” in Latin. Defendant’s “Vento” is Italian for “wind.”
Plaintiff contends that it is “common knowledge that the English translations of VENTUS and VENTO are the same.” Plaintiff also asserts that Defendants use the Ventus mark with the intent to deceive consumers by causing them to believe that Defendants’ Ventus products are related to Plaintiff’s Vento products. Plaintiff claims that the use of the Ventus mark has caused, and will continue to cause, consumer confusion.
In this lawsuit, the following causes of action are alleged:
• Count I: Federal Trademark Infringement – Lanham Act (15 U.S.C. § 1114)
• Count II: Federal Unfair Competition – Lanham Act (15 U.S.C. § 1125(a))
• Count III: False Designation of Origin – Lanham Act (15 U.S.C. § 1125(a)(1)(B))
• Count IV: Federal Trademark Dilution – Lanham Act (15 U.S.C. § 1125(c))
• Count V: Trade Name Infringement under Indiana Common Law• Count VI: Passing Off in Violation of Indiana’s Unfair Competition Doctrine
Barrington seeks equitable relief along with damages, including punitive damages, costs and attorneys’ fees.
The U.S. Patent Office issued the following 201 patent registrations to persons and businesses in Indiana in December 2015, based on applications filed by Indiana patent attorneys:
| Patent No. | Title | |
| 1 | 9225964 | Figure-ground organization of 3-D scenes |
| 2 | 9225338 | System and method for removing far field limitations in microwave photonic arbitrary waveform generators |
| 3 | 9225151 | Spark plug for removing residual exhaust gas and associated combustion chamber |
| 4 | 9223372 | Energy management system |
| 5 | 9222951 | Calibration method for the prospective calibration of measuring equipment |
| 6 | 9222878 | Method and device for optical imaging with a resonant amplifier assembly |
| 7 | 9222685 | Method and system for controlling evaporative and heat withdrawal performance of an occupant support surface |
| 8 | 9222676 | Supercritical or mixed phase fuel injector |
| 9 | 9222637 | Lightguide with horizontal cutoff and horizontal spread |
| 10 | 9222587 | Oil pressure regulator |
Hammond, Indiana – Plaintiff Stanley Pagorek of Dyer, Indiana filed an intellectual property lawsuit in the Northern District of Indiana alleging that Vizio, Inc. of Irvine, California and Cognitive Media Networks, Inc. of San Francisco, California monitor, track and report viewing habits and information about devices attached to home networks for profit. Pagorek seeks class-action status for this Indiana litigation.
Defendant Vizio produces and sells internet-capable televisions. It also offers audio and entertainment products, including sound bars, tablets, DVD players and Blu-ray players. Vizio has a controlling stake in Defendant Cognitive, an advertising company.
Defendants are accused of surreptitiously including tracking software on more than 10 million Vizio high-definition, internet-connected televisions (sometimes known as “smart TVs”). The functionality of the software includes Cognitive’s content-recognition capabilities.
According to the lawsuit, filed by intellectual property lawyers for Pagorek and the putative class, the tracking software is activated by default, most customers would not be made aware of it in the process of setting up their TVs and, for those who were, disabling the software is less than intuitive. The software enables Vizio to monitor and identify the viewing habits of those smart TV customers. The complaint also indicates that the analysis done by the tracking software enables Vizio to infer with reasonable certainty which person is watching what programming.
That information is then provided to third-party advertisers and content providers. Those third parties are then able to customize the advertising and other content displayed to the smart TV customers not only on the Vizio smart TV, but also on any other “smart” device, such as smartphones, tablet computers, laptop computers and desktop computers, that is connected to the same internet protocol address as the Vizio smart TV.
In this complaint, the following is alleged:
• Count One: Violations of the Video Privacy Protection Act (18 U.S.C. § 2710)
• Count Two: Violation of the Prohibition of Disclosure by Persons Providing Video Recording Sales or Rentals Without Written Consent (Cal. Civ. Code § 1799.3)
• Count Three: Violation of California’s Unfair Competition Law (Cal. Civ. Code § 17200, et seq.)
• Count Four: Violation of California’s Consumer Legal Remedies Act (Cal. Civ. Code §§ 1750, et seq.)
• Count Five: Indiana Deceptive Consumer Sales Act (Ind. Code §§ 24-5-0.5, et seq.)
• Count Six: Unjust Enrichment
• Count Seven: Fraud by Omission
• Count Eight: Breach of the Implied Warranty of Merchantability• Count Nine: Violation of the Electronic Communications Privacy Act (18 U.S.C. § 2511)
Plaintiff Pagorek, on behalf of himself and the other members of the proposed class, requests damages, injunctive relief, interest, attorneys’ fees and costs.
Hammond, Indiana – Plaintiff Joe Hand Promotions, Inc. of Feasterville, Pennsylvania filed an intellectual property lawsuit in the Northern District of Indiana alleging unlawful interception of content protected under federal intellectual property laws. The Defendants are Whitney Chapman, individually and d/b/a Showtime Bar and Grill, and Showtime Bar & Grill LLC, also d/b/a Showtime Bar and Grill. Showtime Bar and Grill operates in Gary, Indiana.
Joe Hand is a commercial distributor of sporting events. It states that it was granted exclusive rights to distribute via closed-circuit telecast the “Ultimate Fighting Championship 168: Chris Weidman v. Anderson Silva” championship fight, which was telecast nationwide on Saturday, December 28, 2013.
In this federal lawsuit, filed by an intellectual property attorney for Plaintiff, Defendants are accused of such wrongful acts as interception, reception, publication, divulgence, display, exhibition, and tortiously converting the fight program.
In addition to naming Showtime Bar and Grill LLC, Joe Hand has also sued Chapman as an individual, asserting that she had the right and ability to supervise the activities of the establishment and that, included in those activities, was the unlawful interception of the program.
Plaintiff asserts that, in addition to conversion of the program, Defendants have violated 47 U.S.C. § 605 and 47 U.S.C. § 553. Joe Hand seeks damages, including additional damages for any violation deemed willful as well as costs and attorneys’ fees.
Overhauser Law Offices, the publisher of this website, has represented several hundred persons and businesses accused of infringing satellite signals.
South Bend, Indiana – Plaintiff Shower Enclosures America, Inc. of Ontario, California sued in the Northern District of Indiana alleging that BBC Distribution Corp. of Elkhart, Indiana infringed “Triple Slide Assembly for Sliding Doors,” U.S. Patent No. 7,174,944, which was issued by the U.S. Patent and Trademark Office.
An Indiana patent attorney for Plaintiff Shower Enclosures America, Inc. (“SEA”) filed this lawsuit alleging that Defendant BBC Distribution, LLC (“BBC”) is infringing SEA’s patent on a triple-slide assembly for sliding doors, a product which is cited in the complaint as particularly appropriate for use in recreational vehicles. The patent at issue is directed to “products, such as shower doors, which have three door panels mounted into a compact, two-track header which allows the panels to slide easily between open and closed positions.” SEA makes and sells products that incorporate the patented invention.
BBC is accused of infringing with its “Tripass” shower door. SEA contends that the BBC product infringes at least claim 12 of the patent-in-suit either literally or under the doctrine of equivalents.
SEA requests that the court grant it equitable relief as well as damages for the alleged patent infringement.
Indianapolis, Indiana – Indiana copyright lawyers for Plaintiff Angela Ellsworth of Huntington, Indiana filed a copyright lawsuit in the Southern District of Indiana alleging that Mission 22 a/k/a Elder Heart, Inc. of Nashville, Indiana infringed Ellsworth’s copyrighted artwork, Copyright Registration No. VA1-958-239, by creating at least one unauthorized derivative work.
Plaintiff Ellsworth is a professional artist. Defendant Elder Heart is a non-profit organization that helps veterans with post-traumatic stress disorder and promotes awareness of the veteran suicide rate of 22 per day.
From October 2013 to November 3, 2014, Ellsworth volunteered to assist Defendant in its efforts. Ellsworth states that she created original art, entitled “22”, that depicted the silhouettes of 22 soldiers and the shadows of those 22 silhouettes in November 2013. She indicates that she received a copyright for this artwork in April 2015.
Ellsworth claims that she donated 13 prints of a derivative of her copyrighted artwork to Defendant, including one that was specifically designated as a gift to Magnus Johnson, President and Chief Executive Officer of Defendant.
At a time unspecified in this copyright lawsuit, Defendant launched a project, “Mission 22,” to raise awareness of the veteran suicide rate. Ellsworth contends that, as part of this project, Defendant designed a sculpture that knowingly and willfully copied Plaintiff’s copyrighted artwork. Elder Heart also announced its intention to build the sculpture as a national monument.
In March 2015, a copyright attorney for Elder Heart contacted Ellsworth stating that, at the time that Elder Heart created the accused artwork, it was unaware of Ellsworth’s artwork and that “any similarities with [Plaintiff’s] artwork are a coincidence at best.” Ellsworth asserts that Elder Heart’s copyright counsel subsequently admitted that those statements were untrue.
This lawsuit lists a single count, copyright infringement. It asserts that “Defendant has created at least one unauthorized derivative work, violating Plaintiff’s exclusive right to prepare derivative works based upon her copyrighted Artwork.” Plaintiff Ellsworth seeks injunctive relief along with damages, attorneys’ fees and costs.
New Albany, Indiana – Plaintiff Joe Hand Promotions, Inc. of Feasterville, Pennsylvania filed an intellectual property lawsuit in the Southern District of Indiana. The Defendants are two individuals, Darlene Vicars and Leann Richardson, and an entity, The Wing Company, LLC. Each of the Defendants is alleged to do business as The Wing Company of Sunman, Indiana. Vicars and Richardson have been sued both individually and d/b/a The Wing Company.
At issue in this latest Indiana interception lawsuit commenced by an intellectual property lawyer for Joe Hand is the alleged unlawful interception of the “Ultimate Fighting Championship 168: Chris Weidman v. Anderson Silva,” which was telecast nationwide on Saturday, December 28, 2013.
Plaintiff Joe Hand claims that it holds exclusive domestic rights to the commercial distribution of this championship fight program and that Defendants have deprived it of the “commercial license fee to which Plaintiff was rightfully entitled to receive” by showing the program without having purchased a commercial license from Plaintiff.
In this federal lawsuit, the following claims are made:
• 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
Joe Hand seeks statutory damages, including additional damages for willful violations. Costs and attorney’s fees are also sought.
Changes to Delivery of E-mailed Notices of Electronic Filing (NEFs)
Effective January 4, 2016, the United States District Court for the Southern District of Indiana will implement important new changes in the delivery of e-mailed Notices of Electronic Filing (“NEFs”). The court’s CM/ECF system will begin generating NEFs for both docketed and e-filed events in sealed cases and for sealed entries in non-sealed cases. For more information, click here.
Sealed filings are governed by Local Rule 5-11 and Local Criminal Rule 49.1-2. Attorney e-filers are encouraged to review updates to the court’s ECF Policies and Procedures Manual (Sections 11 and 18), which address changes in service requirements for sealed filings.
