Indiana Intellectual Property Law News

February 20, 2015

United States Deposits Instrument of Ratification to Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs

Washington, D.C. – The U.S. Department of Commerce’s United States Patent and Trademark Office (“USPTO”) recently announced that the United States has deposited its instrument of ratification to the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs (“Hague Agreement”) with the World Intellectual Property Organization (“WIPO”) in Geneva, Switzerland. This marks the last step in the membership process for the United States to become a Member of the Hague Union. The treaty will go into effect for the United States on May 13, 2015.

Currently, U.S. applicants wishing to pursue protection for industrial designs in multiple jurisdictions must file individual applications in each of the respective jurisdictions where industrial design rights are desired. When the Hague Agreement enters into force for the United States, it will be possible for U.S. applicants to file a single international design application either with WIPO in Geneva, Switzerland, or the USPTO to obtain protection in multiple economies. The Hague system for the protection of industrial designs provides a practical solution for registering up to 100 designs in over 62 territories with the filing of one single international application.

“U.S. accession to the Geneva Act of the Hague Agreement will provide applicants with the opportunity for improved efficiencies and cost savings in protecting their innovative designs in the global economy,” said Deputy Under Secretary for Commerce for Intellectual Property and Deputy Director of the USPTO Michelle K. Lee. “We are extremely excited about joining the Hague Union and contributing to the continued expansion and development of the Hague system which facilitates protection of industrial designs in design registration and examination systems alike.”

February 19, 2015

Indiana Trademark Law: Court Strikes Response Brief Due to Untimely, Overlong Filing

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Judge Tanya Walton Pratt (pictured) of the Southern District of Indiana struck a response brief in the matter of Wine & Canvas Development, LLC. v. Theodore Weisser, Christopher Muylle, YN Canvas CA, LLC and Art Uncorked, noting that the brief was both late and longer than permitted.

In 2011, Wine & Canvas Development, LLC (“Wine & Canvas”) sued Muylle and others alleging the wrongful use of Wine and Canvas trademarks as well as the breach of non-competition agreements. Muylle counterclaimed against Wine and Canvas asserting abuse of process. In November 2014, after a four-day trial, the jury found for Muylle on all claims and awarded him $270,000.

After the conclusion of the trial, the Indiana trademark lawyer for Muylle petitioned the court for attorneys’ fees under § 1117(a) of the Lanham act, which provides that the court may award reasonable attorney fees to the prevailing party in “exceptional cases.” Muylle, via his trademark attorney, contended that this case was properly deemed exceptional as a result of the jury’s finding of abuse of process by Wine & Canvas. Muylle also noted that “the Court previously determined that ‘Wine & Canvas, Mr. Scott, [Ms. McCracken], and Mr. McCracken have flooded the Court with filings which has increased the work expended on the case and Wine & Canvas has filed numerous claims that the Court has found to be without merit.’ … And the Court has already sanctioned the Plaintiff not once but three times for failing to comply with discovery or court rules.” Muylle asked for $175,882.68 in attorneys’ fees.

Wine & Canvas asked for an extension of time to respond to this request, to January 15, 2015, which the court granted. Wine & Canvas subsequently requested an additional extension of time to file its response, specifically asking for a new deadline of January 19, 2015. The court granted this request, also.

Wine & Canvas filed its response brief on January 20, 2015. Muylle’s trademark attorney asked the court to strike that brief. The court noted that “[Wine & Canvas’] counsel’s repeated disregard for and supposed ignorance of the rules is no excuse, and an apology does not allow counsel to continue to disregard the rules and court orders” and admonished the trademark lawyer for Wine & Canvas for failing to meet his filing deadlines.

The court also noted that, in addition to the untimeliness of the filing, the 40-page brief was also overlong in violation of Local Rule 7-1(e)(1), which limits the length of response briefs to 35 pages.

Consequently, the court granted the motion to strike Wine & Canvas’ response brief. The court, however, also granted Wine & Canvas leave to file a belated response to Muylle’s petition for attorneys’ fees.

February 18, 2015

Indiana Trademark Litigation: Agdia Sues AC Diagnostics Alleging Deceptive Meta-tags and Other Trademark Harm

By Overhauser Law Offices, LLC

South Bend, Indiana – Indiana trademark attorneys for Agdia Inc. of Elkhart, Indiana sued in the Northern District of Indiana alleging that Jun Q. Xia and AC Diagnostics, Inc. of Fayetteville, Arkansas infringed the trademark AGDIA®, which has been registered as United States Trademark Registration No. 1747994.

For over 30 years, Plaintiff Agdia has been in the business of supplying testing, test kits, and associated products and services related to the presence of pathogens or quality factors in agricultural products. Agdia has sued a former employee, Jun Q. Xia, alleging violations of federal and Indiana intellectual property law. AC Diagnostics, a competing enterprise formed by Xia, has also been named as a defendant in this lawsuit.

Agdia contends that Defendants have been unlawfully using its trademarked name. Among the claims is that Xia has hidden the Agdia trademark followed by the phrase “plant diagnostics,” in the meta tags of nearly every product page associated with the AC Diagnostics website. Agdia asserts that, as an example, the “Company Profiles” section of the AC Diagnostics website, available at http://www.acdiainc.com/Comprofil.htm, appears upon first glance to provide nothing more than company information. However, if the page is printed, Agdia states that it reveals more text at the bottom of the document, hidden as white text on a white background.

Agdia also asserts that, through the AC Diagnostics website, Xia is deceptively and unfairly trading on Agdia’s name by hiding that name, followed by the phrase “plant diagnostics,” in the meta tags of nearly every product page associated with that site. Agdia contends that no fewer than 200 separate URLs from the Defendants’ website use the Agdia name deceptively.

Agdia finally cites the name of AC Diagnostic’s webpage as deceptive, claiming that “acdiainc,” which is used within www.acdiainc.com, AC Diagnostic’s website, is just one letter off from Agdia’s legal name, “Agdia Inc.” Defendants are accused of using this web address with the bad faith intent to profit from the Agdia trademark.

In a five-count complaint, filed by Indiana trademark lawyers for Agdia, Defendants are accused of willful, intentional, and unauthorized use of the Agdia trademark that is unlawful under federal law as well as Indiana state law.

Plaintiff Agdia asks the court to enjoin Defendants from using the Agdia mark; to cancel the domain www.acdiainc.com or transfer it to Agdia; for damages, including treble damages; and for attorneys’ fees and costs.

February 16, 2015

Third Member of International Computer Hacking Ring Pleads Guilty to Hacking and Conspiracy to Steal Intellectual Property; Charges Against Indiana Defendant Pending

By Overhauser Law Offices, LLC

Delaware – A third member of an international computer hacking ring has pleaded guilty to conspiring to break into computer networks of prominent technology companies to steal more than $100 million in intellectual property and other proprietary data.

Nathan Leroux, 20, of Bowie, Maryland, pleaded guilty to conspiracy to commit computer intrusions and criminal copyright infringement based on his role in the cyber theft of software and data related to the Xbox One gaming console and Xbox Live online gaming system, and popular games such as the “FIFA” online soccer series; “Call of Duty: Modern Warfare 3;” and “Gears of War 3.” Leroux has been in custody since attempting to flee into Canada from Buffalo, New York, on June 16, 2014. A sentencing hearing is set before U.S. District Judge Gregory M. Sleet of the District of Delaware on May 14, 2015.

Sanadodeh Nesheiwat, 28, of Washington, New Jersey, and David Pokora, 22, of Mississauga, Ontario, Canada, previously pleaded guilty to the same conspiracy charge on Sept. 30, 2014. They remain in custody pending their sentencing hearings, which are scheduled for April 2015. Pokora’s guilty plea is believed to have been the first conviction of a foreign-based individual for hacking into U.S. businesses to steal trade secret information. Charges against a fourth defendant, Austin Alcala, 19, of McCordsville, Indiana, remain pending.

According to Leroux’s admissions in connection with his guilty plea, he was part of the hacking conspiracy between January 2011 and September 2012. During that period, hacking group members located in the United States and abroad gained unauthorized access to computer networks of various companies, including Microsoft Corporation, Epic Games Inc., Valve Corporation and Zombie Studios. The conspirators accessed and stole unreleased software, software source code, trade secrets, copyrighted and pre-release works, and other confidential and proprietary information. Members of the conspiracy also allegedly stole financial and other sensitive information relating to the companies – but not their customers – and certain employees of such companies.

Specifically, the data theft targeted software development networks containing source code, technical specifications and related information for Microsoft’s then-unreleased Xbox One gaming console, as well as intellectual property and proprietary data related to Xbox Live and games developed for that online gaming system.

Leroux admitted in court that he and others used the stolen intellectual property to build, and attempt to sell, counterfeit versions of the Xbox One console before its public release in November 2013. In July 2013, the FBI intercepted a counterfeit console built by Leroux, which was destined for the Republic of Seychelles.

Leroux also admitted that he developed a software exploit that allowed him and others to generate millions of “coins” for the FIFA soccer games playable on the Xbox Live platform. These coins are the virtual, in-game currency used to build a “FIFA Ultimate Team” in the games. Without the authorization of Electronic Arts, the intellectual property rights holder to the FIFA games, Leroux and others sold bulk quantities of the “FIFA coins” via online black markets.

The value of the intellectual property and other data stolen by the hacking ring, as well as the costs associated with the victims’ responses to the conduct, is estimated to range between $100 million and $200 million. To date, the United States has seized over $620,000 in cash and other proceeds related to the charged conduct.

This case was investigated by the FBI, with assistance from the Criminal Division’s Office of International Affairs, the U.S. Department of Homeland Security’s Homeland Security Investigations and Customs and Border Patrol, and the U.S. Postal Inspection Service. The investigation also has been coordinated with the Western Australia Police and the Peel Regional Police of Ontario, Canada.

The case is being prosecuted by Trial Attorney James Silver of the Criminal Division’s Computer Crime and Intellectual Property Section and Assistant U.S. Attorney Edward J. McAndrew of the District of Delaware.

Assistant Attorney General Leslie R. Caldwell of the Justice Department’s Criminal Division, U.S. Attorney Charles M. Oberly III of the District of Delaware and Special Agent in Charge Stephen E. Vogt of the FBI’s Baltimore Field Office made the announcement.

February 13, 2015

Indiana Trademark Law: Consent Judgment Entered Enjoining Chanel’s Salon from Using “Chanel” in Business Name

By Overhauser Law Offices, LLC

Hammond, Indiana – Chanel’s Salon, LLC, d/b/a Chanel’s Salon and Chanel’s Cosmetology Salon, and Chanel Jones, all of Merrillville, Indiana, entered into a consent judgment with Chanel, Inc. of New York, New York to resolve ongoing trademark disputes regarding the trademarked term CHANEL®.

Indiana trademark attorneys for fashion-and-beauty giant Chanel, Inc. had sued in the Northern District of Indiana alleging that Chanel’s Salon, LLC and Chanel Jones had infringed and were infringing the trademark CHANEL, Registration Nos. 302,690; 510,992; 1,263,845; 1,348,842; 1,464,711; 1,559,404; 1,660,866; 3,134,695; and 4,105,557, which have been registered by the U.S. Patent and Trademark Office.

In this Indiana lawsuit, Chanel, Inc. alleged trademark infringement, trademark dilution, unfair competition under federal law as well as trademark infringement and unfair competition under Indiana state law. Chanel, Inc. claimed that its intellectual property rights to its trademark CHANEL had been infringed and diluted by actions of Defendants Chanel’s Salon, an Indiana beauty salon, and its owner Chanel Jones.

Specifically, Defendants were accused of using the trade names CHANEL’S SALON and/or CHANEL’S COSMETOLOGY SALON in connection with their beauty salon without Chanel’s authorization. Chanel, Inc. also claimed that the Defendants were infringing and diluting the CHANEL trademark by, inter alia, offering goods and services that are related to those offered under the CHANEL mark, including cosmetics, beauty consultation services and hair accessories.

This litigation ended pursuant to a consent judgment crafted by the parties and entered by the Indiana district court. As part of the consent judgment, the court issued a permanent injunction prohibiting Jones from using CHANEL to identify her beauty salon or any other enterprises, services or products. Jones was also enjoined from any use of the term CHANEL as part of any keyword, meta tag, page tag, or source code in any business marketing.

The order in this intellectual property litigation was issued by Judge Theresa L. Springmann in the Northern District of Indiana. This case is: Chanel, Inc. v. Chanel’s Salon LLC et al., Case No. 2:14-cv-00304-TLS-PRC.

February 12, 2015

USPTO to Host First-Ever Summit on Patent Quality

By Overhauser Law Offices, LLC

Alexandria, Virginia – A two-day event to be held by the U.S. Department of Commerce’s United States Patent and Trademark Office (“USPTO”) will include patent-quality discussions among USPTO leadership as well as experts from industry, academia, and the public.

The USPTO will host this public meeting on Wednesday, March 25 and Thursday, March 26, 2015 at the USPTO headquarters in Alexandria, Virginia. The Quality Summit will encourage robust discussions among USPTO leadership; patent prosecutors, litigators, applicants and licensees; and other members of the public interested in USPTO’s efforts to further improve patent quality through its Enhanced Patent Quality Initiative.

The USPTO is seeking public input and guidance to direct its continued efforts towards enhancing patent quality. These efforts focus on improving patent operations and procedures to provide the best possible work products, to enhance the customer experience, and to improve existing quality metrics. USPTO has already set in motion several quality initiatives, including robust technical and legal training for patent examiners, as well as a Glossary Pilot, Quick Patent IDS Program, First Action Interview Pilot, and After Final Consideration Pilot. The two-day Quality Summit is one of many ways the USPTO is engaging with the public on this important effort.

February 11, 2015

Indiana Patent Litigation: Four Mile Bay Asserts Patent Infringement Claims Against Zimmer

By Overhauser Law Offices, LLC

Hammond, Indiana – Patent attorneys for Four Mile Bay LLC (“FMB”) of Wadsworth, Ohio instituted intellectual property litigation in the Northern District of Indiana alleging that Zimmer Holdings, Inc. (“Zimmer”) of Warsaw, Indiana infringed its patented “Hip Implant With Porous Body,” Patent Nos. 8,821,582 and 8,506,642, which have been registered by the U.S. Patent Office.

Zimmer is a manufacturer and marketer of reconstructive orthopedic implants, including hip implants. At issue in this Indiana patent lawsuit are United States Patent Nos. 8,821,582 (the “‘582 patent”) and 8,506,642 (the “‘642 patent”). Zimmer is accused of having infringed and continuing to infringe the ‘582 and ‘642 patents by making, selling, and using hip implants, including a Trabecular Metal Primary Hip Prosthesis, that embody the patented invention.

Ownership of the ‘582 patent, issued for an invention in a method of machining, fabricating, and attaching components of a hip implant with a porous body, is claimed by FMB. FMB also asserts ownership of the ‘642 patent.

In this Indiana litigation, patent lawyers for FMB ask the court for the following:

Judgment that Zimmer has directly infringed claims of the ‘582 patent and the ‘642 patent;

For a reasonable royalty; and

For pre-judgment interest and post-judgment interest at the maximum rate allowed by law.

The case was assigned to Chief Judge Philip P. Simon and Magistrate Judge Christopher A. Nuechterlein in the Northern District of Indiana and assigned Case No. 3:15-cv-00063-PPS-CAN.

February 9, 2015

United States District Court of Southern Indiana Selects New Magistrate

By Overhauser Law Offices, LLC

Indianapolis, Indiana – The Honorable Richard L. Young, Chief Judge of the United States District Court for the Southern District of Indiana, recently announced the selection of New Albany attorney Van T. Willis as part-time United States Magistrate Judge. Mr. Willis’ appointment will be made upon completion of a Federal Bureau of Investigation background check, a process that can take a few months. Once appointed, he will fill the vacancy created by the passing of The Honorable Michael G. Naville, who served the court from November 1995 to September 2014.

As the Magistrate Judge in the New Albany Division of the Southern District of Indiana, Mr. Willis will preside over preliminary criminal proceedings in that division. He will also continue in the private practice of law as a senior partner with the firm of Kightlinger & Gray, LLP. He has been with the firm since 1991, and his primary areas of practice are civil rights, corporate and business law, employment, insurance defense litigation, trademark and copyright infringement, and worker’s compensation. Prior to joining Kightlinger & Gray, from 1989 to 1991, Mr. Willis served as a law clerk to United States District Judge Gene E. Brooks.

Mr. Willis was born and raised in Franklin, Kentucky. He received a business administration degree from the University of Kentucky in 1983, then attended law school there, graduating in 1988. Mr. Willis was admitted to the Kentucky Bar in 1988 and is also admitted to practice before the Indiana Bar; the United States District Court for the Southern District of Indiana, Western District of Kentucky, and Eastern District of Kentucky; and the United States Court of Appeals for the Seventh Circuit. He is a member of the Indiana State Bar Association, Kentucky Bar Association, Floyd County Bar Association, Louisville Bar Association, DRI, and Defense Trial Counsel of Indiana.

February 5, 2015

144 Trademark Registrations Issued to Indiana Companies in January 2015

By Overhauser Law Offices, LLC

The U.S. Trademark Office issued the following 144 trademark registrations to persons and businesses in Indiana in January 2015 based on applications filed by Indiana trademark attorneys:

Reg. Number	Word Mark	Click to View
4679071	PROJECT LEAD THE WAY PLTW	Live
4679063	LOUISVILLE CITY	Live
4678991	INTERCOASTAL	Live
4678989	EVERCHILL	Live
4678987	GREYSTONE	Live
4678817	“NOW THAT’S GOOD STUFF!”	Live
4678703	ACL	Live
4678603	USI	Live

February 4, 2015

Patent Office Issues 111 Patents To Indiana Citizens in January 2015

By Overhauser Law Offices, LLC

The U.S. Patent Office issued the following 111 patent registrations to persons and businesses in Indiana in January 2015, based on applications filed by Indiana patent attorneys:

PAT. NO.		TITLE
D721,793		Faucet spout
D721,792		Faucet body
D721,791		Faucet handle
D721,790		Faucet
D721,568		Latching mechanism for an animal enclosure
8942778		Analyte monitoring sensor system for monitoring a constituent in body tissue
8941917		Tensioned projection screen