Intellectual Property Law

December 19, 2017

Indiana Copyright Litigation: Bell Finds Another Defendant To Sue Over Skyline Photo’s Copyright

Indianapolis, Indiana – Attorney Richard Bell of McCordsville, Indiana filed suit in the Southern District of Indiana alleging that Defendant, River Pools & Spas Incorporated of Warsaw, Virginia, infringed its rights in the “Indianapolis Photo” registered on August 4, 2011 with the US Copyright Office, Registration No. VA0001785115. Bell seeks injunctive relief along with statutory damages, costs and attorney fees.

Bell has filed many lawsuits on his own behalf asserting copyright infringement in Indiana federal courts. See:

The Defendant in this case is River Pools & Spas Incorporated manufactures and installs pools and spas in residential homes. According to the complaint, the Defendant used the copyrighted photo on their business website, without permission or attribution. Plaintiff also claims that Defendant is vicariously liable for any profits realized by third parties through any third party’s downloading and use of the photo off of Defendant’s website.

December 11, 2017

Arizona-based Manufacturer Sues Indiana Corporation for Alleged Infringement of “Bulletproof” and Bulletproof Diesel” common law and registered Trademarks

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiff, Neal Technologies, Inc. d/b/a Bullet Proof Diesel of Mesa, Arizona filed suit in the Southern District of Indiana alleging that Defendant, Superior Auto and Diesel Repair, Inc., of Shelbyville, Indiana infringed its rights in the following trademarks: U.S. Registration No. 4,235,578, U.S. Registration No. 4,262,825, U.S. Registration No. 5,130,772, U.S. Registration No. 5,220,129, U.S. Registration No. 5,220,128, and U.S. Registration No. 5,220,127.

Plaintiff company is an Arizona-based manufacturer of aftermarket parts for diesel engines, specifically Ford Power Stroke diesel engines. In 2009, the Plaintiff began selling an aftermarket part to improve the cooling system of a 6.0 liter Ford Power Stroke diesel engine, and marketed the part under various trade names such as “Bulletproof” and “Bulletproof Diesel.”

The Plaintiff has both common law and registered trademarks for various “Bulletproof” and “Bulletproof Diesel” marks. According to the complaint, the Defendant has marketed packages of aftermarket parts for the same type of Ford engine under the name “Bulletproof” and “Bulletproofing packages.” Plaintiff’s complaint alleges that Defendant uses theses marks to market aftermarket parts packages on their website, despite not having authorization from Plaintiff, and Defendant does not sell or install genuine Bullet Proof Diesel parts.

The complaint alleges federal trademark infringement under the Lanham Act, Unfair Competition under the Lanham Act, and Unfair Competition under Indiana common law. Plaintiff is seeking compensatory and treble damages, costs incurred, prejudgment interest, attorney’s fees and all other relief the court deems proper.

December 8, 2017

Southern District of Indiana Dismisses College Football Players’ Suit Against FanDuel and DraftKings

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorneys for Plaintiffs, Akeem Daniels, Cameron Stingily, and Nicholas Stoner, Inc., filed suit in the Southern District of Indiana alleging Defendants, FanDuel, Inc., and DraftKings, Inc. used the likeness of the three Plaintiffs and alleged a Right of Publicity claim.The decision was made by the district court granting the Defendants’ Motion to Dismiss the case.

The Defendants are fantasy sports websites that run collegiate fantasy football games, among other sports. The Plaintiffs were collegiate football players whose names appeared on the websites as players available for selection for a user’s fantasy team.

Plaintiffs filed suit claiming that Defendants violated their rights of publicity under Indiana’s Right of Publicity statute by using their name and likenesses on the websites without first obtaining permission. Defendants moved to dismiss for failure to state a claim. The Defendants put forward three main defenses: that certain statutory exemptions in the Indiana statute removed protection for the Plaintiffs, that First Amendment free speech allowed the use, and that federal copyright law preempted Plaintiff’s claims.

The Court ruled in favor of the Defendants’ motion to dismiss based on the statutory exemptions in the Indiana statute. The Court found that the Defendants’ use of Plaintiff’s names fell into the “newsworthy” and “public interest” exemptions to the state Right of Publicity statute. For the sake of thoroughness, the Court continued their analysis and rejected the other statutory exemptions put forward, as well as the First Amendment and federal preemption defenses.

December 6, 2017

Indiana Copyright Litigation: Richard Bell Sues Again On Copyright Claim Over Indianapolis Skyline Photo

By Overhauser Law Offices, LLC

Indianapolis, Indiana – Attorney for Richard Bell of McCordsville, Indiana filed suit in the Southern District of Indian a alleging that Defendant, Keith Arnett infringed its rights in the “Indianapolis Photo” registered on August 4, 2011 with the US Copyright Office, Registration No. VA0001785115. Bell seeks injunctive relief along with statutory damages, costs and attorney fees.

Bell has filed many lawsuits on his own behalf asserting copyright infringement in Indiana federal courts. See:

This suit follows the same lines as the previous suits. Bell alleges copyright infringement and violations of the Lanham Act, stemming from the Defendant’s alleged unauthorized use of the copyrighted photo of the Indianapolis skyline. Plaintiff claims that Defendant used the photo on Defendant’s business website to help draw visitors to the website.

Plaintiff also alleges that Defendant falsely claimed that Defendant owned all copyrights for all photos appearing on the website. Bell even goes so far to allege that, by making the photo available for download on his website by third parties, Defendant is vicariously liable for any and all profits derived by third party users who downloaded the photo.

December 5, 2017

Court Of Appeals For Federal Circuit Denies Eli Lilly’s Appeal, Opens Door for Testosterone Generics

By Overhauser Law Offices, LLC

The Plaintiffs, Eli Lilly and Company, Eli Lilly Export S.A., and Acrux DDS Pty Ltd. had filed a patent infringement lawsuit in the Southern District of Indiana alleging that Defendants, Perrigo Company, Perrigo Israel Pharmaceuticals Ltd., Actavis Laboratories UT, Inc., FKA Watson Laboratories Inc., Lupin Pharmaceuticals, Inc., and Lupin LTD infringed patent no. 8,435,944, Method and Composition for Transdermal Drug Delivery (the ‘944 patent) and 8,807,861, Spreading Implement, (the ‘861 patent), which have been issued by the US Patent Office.

The ‘944 patent “recites a transdermal delivery method of applying testosterone to the axilla of a patient.” The District Court ruled in favor of the Defendants and invalidated the ‘944 patent for obviousness based on prior art, and the Court of Appeals for the Federal Circuit affirmed this decision. The Federal Circuit cited a lack of merit in Lilly’s appeal and a misreading of the district court’s decision.

The District Court upheld the validity of Lilly’s ‘861 patent, for an applicator that administers testosterone to the body. The Federal Circuit affirmed this decision as well, denying Cross-Appellant Amneal Pharmaceuticals’ appeal. Amneal’s version of the applicator was found to infringe on the ‘861 patent, and the Federal Circuit agreed. Amneal claimed that prior art invalidated the ’861 patent, but the Federal Circuit denied that argument.