Indiana Trademark Litigation Update – Roche Diagnostics GmbH v. Polymer Technology Systems

Plaintiff, based in Indianapolis, Indiana, has used the ACCU-CHEK trademark in connection with medical instruments and apparatus related to blood-glucose monitoring and diabetes management and education since as early as 1981. In March 2014, Defendant changed its company name to CHEK Diagnostics and began to promote a line of diabetes care products. Plaintiff maintains that the CHEK mark is confusingly similar to its ACCU-CHEK trademarks.

Roche Diagnostics GmbH et al v. Polymer Technology Systems Inc.

Court Case Number: 1:14-cv-00552-JMS-DKL
File Date: Thursday, April 10, 2014
Plaintiff: Roche Diagnostics GmbH, Roche Diagnostics Operations Inc.
Plaintiff Counsel: Jonathan P. Froemel, John R. Maley of Barnes & Thornburg LLP
Defendant: Polymer Technology Systems Inc.
Cause: Trademark Infringement, Unfair Competition, Common Law Trademark Infringement, Common Law Unfair Competition, Declaratory Judgment
Court: Southern District of Indiana
Judge: Judge Jane Magnus-Stinson
Referred To: Magistrate Judge Denise K. LaRue

Indiana Copyright Litigation Update – Richard N. Bell v. Diversified Vehicle Services et al

INDY SKYLINEThe Plaintiff in this copyright lawsuit is an attorney and professional photographer living in McCordsville, Indiana. In 2000, Plaintiff took two photographs of the downtown Indianapolis skyline from a location on the Canal near the USS Indianapolis Memorial. Both of Plaintiff’s photographs were duly registered with the U.S. Copyright Office and posted on the Internet in August 2000. All of the various defendants have allegedly utilized Plaintiff’s photographs on their respective websites without permission.

Website owners, you should immediately check your websites to determine whether you know the source of EVERY photograph. Unless you’re certain that you have permission to use the photographs (or qualify for some exception to copyright infringement like fair use), remove/replace the photographs at once. These photograph copyright lawsuits have been occurring for far too long to continue to plead ignorance or innocent infringement. Take your own photographs, hire a photographer or license existing photographs. But don’t get caught in a lawsuit because you take the easy way out and grab an image from Google.

Whatever you do, definitely don’t use Plaintiff’s photographs…he has a long history of litigation to enforce his copyrights:

Richard N. Bell v. Mark Arruda

Bell v. Indy Cleaning Pros

Richard N. Bell v. Greg Bayers LLC et al.

Richard N. Bell v. Jerry Gordon et al.

Richard Bell v. Cameron Taylor et al.

Richard N. Bell v. Diversified Vehicle Services et al

Court Case Number: 1:14-cv-00525
File Date: Monday, April 07, 2014
Plaintiff: Richard N. Bell
Plaintiff Counsel: Richard N. Bell – Pro Se
Defendant: Diversified Vehicle Services, Cameron Taylor, Taylor Computer Solutions, Rhonda Williams, Forensic Solutions Inc., Heath Garrett, Crestacom Inc., American Traveler Service Corp. LLC, Mike Cowper, Rensselaer Polytechnic Institute, Easystreet Realty Indianapolis, Drohan Management, Metal Markets, Mattison Corporation, Industrial Heating Equipment Association, Junk Dawgs, Kimberly Hinds
Cause: Copyright Infringement, Unfair Competition, Theft
Court: Southern District of Indiana
Judge: Judge Sarah Evans Barker
Referred To: Magistrate Judge Denise K. LaRue

Indiana Trademark Litigation Update – Order Inn v. Ton Ganser et al

Since as early as 2000, Plaintiff has used its registered ORDER INN trademark in connection with “On-line ordering services in the field of restaurant takeout and delivery.” Defendant has begun providing similar services at the http://www.order-in.biz domain. Plaintiff seeks an injunction and damages as a result of the allegedly infringing activity.

Order Inn Screenshot

Order Inn, Inc. v. Ton Ganser et al

Court Case Number: 1:14-cv-00517-TWP-DKL
File Date: Friday, April 04, 2014
Plaintiff: Order Inn, Inc.
Plaintiff Counsel: Ryan Gile of Weide & Miller Ltd.
Defendant: Ton Ganser, TJ Enterprises of Indiana LLC, Does 1-10
Cause: Federal Trademark Infringement, False Designation of Origin, Unfair Competition
Court: Southern District of Indiana
Judge: Judge Tanya Walton Pratt
Referred To: Magistrate Judge Denise K. LaRue

Indiana Cybersquatting Litigation Update – Rieth-Riley Construction v. Superior Asphalt

Plaintiff and Defendant are competitors in the asphalt manufacturing, supplying, paving and maintenance business. Defendant purchased the domain name Rieth-Riley.net, which includes Plaintiff’s registered trademark, and used that domain name to direct traffic to their own website, SuperiorAsphalt.com. Defendant also offered to sell the domain name to Plaintiff for $10,000.

Screen Shot 2014-02-13 at 6.27.52 AM

Rieth-Riley Construction Co., Inc. v. Jeffrey Kresnak et al

Court Case Number: 3:14-cv-00280-RL-CAN
File Date: Wednesday, February 12, 2014
Plaintiff: Rieth-Riley Construction Co., Inc.
Plaintiff Counsel: D. Michael Anderson of Barnes & Thornburg LLP
Defendant: Jeffrey Kresnak, Superior Asphalt, Inc.
Cause: Federal Trademark Infringement, Unfair Competition, Cyberpiracy
Court: Northern District of Indiana
Judge: Judge Rudy Lozano
Referred To: Magistrate Judge Christopher A. Nuechterlein

Indiana Trade Dress Litigation Update – KM Innovations v. Opportunities, Inc.

This is a trade dress lawsuit involving the product packaging for synthetic fiber snowballs. See the Complaint below for a description of the similarities and some really grainy comparison photos.

Plaintiff is based in New Castle, Indiana. Defendant is based in Colo, Iowa, which has a population of 876 and is named after a railroad official’s dog.

KM Innovations LLC v. Opportunities, Inc.

Court Case Number: 1:14-cv-00199-SEB-DML
File Date: Tuesday, February 11, 2014
Plaintiff: KM Innovations LLC
Plaintiff Counsel: Dean E. McConnell of McConnell Intellectual Property Law
Defendant: Opportunities, Inc.
Cause: Trade Dress Infringement, Unfair Competition
Court: Southern District of Indiana
Judge: Judge Sarah Evans Barker
Referred To: Magistrate Judge Debra McVicker Lynch

Indiana Trademark Litigation Update – Sprint Solutions et al v. Reginald Aldridge et al

Plaintiff Sprint accuses three defendants of profiting from the illegal acquisition and resale of new Sprint phones. The Complaint is lengthy, detailing both Sprint’s business model and the Defendants’ alleged “Bulk Handset Theft and Trafficking Scheme,” in addition to fourteen claims. Presumably, in addition to civil penalties, the actions alleged by the Plaintiffs could also result in criminal penalties for Defendants.

Sprint Solutions, Inc. et al v. Reginald Aldridge et al

Court Case Number: 1:14-cv-00128-TWP-DML
File Date: Wednesday, January 29, 2014
Plaintiff: Sprint Solutions, Inc., Sprint Communications Company LP, Boost Worldwide, Inc.
Plaintiff Counsel: Matthew B. Millis, John D. Waller of Wooden & McLaughlin LLP
Defendant: Reginald Aldridge, Arrice Aldridge, Damion Transou
Cause: Unfair Competition, Tortious Interference with Business Relationships and Prospective Advantage, Civil Conspiracy, Unjust Enrichment, Conspiracy to Induce Breach of Contract, Common Law Fraud, Fraudulent Misrepresentation, Trafficking in Computer Passwords, Unauthorized Access, Unauthorized Access with Intent to Defraud, Federal Trademark Infringement, Common Law Trademark Infringement, False Advertising, Contributory Trademark Infringement, Conversion
Court: Southern District of Indiana
Judge: Judge Tanya Walton Pratt
Referred To: Magistrate Judge Debra McVicker Lynch

Indiana Trademark Litigation Update – Eli Lilly files 2 lawsuits over pet brands ELANCO, COMFORTIS, TRIFEXIS and PANORAMIS

Eli Lilly has filed two related cases involving its many lines of pet medicines, including ELANCO veterinary preparations, COMFORTIS flea-control preparations and TRIFEXIS and PANORAMIS pet medicines. The Defendants allegedly advertise and sell Australian and European version of the pet medicines branded with Eli Lilly’s trademarks through their respective websites.

Eli Lilly and Company v. Graham Nelson et al

Court Case Number: 1:13-cv-01800-JMS-DML
File Date: Tuesday, November 12, 2013
Plaintiff: Eli Lilly and Company
Plaintiff Counsel: Jan M. Carroll of Barnes & Thornburg LLP
Defendant: Graham Nelson, Zoja Pty. Ltd.
Cause: Trademark Infringement, Unfair Competition, False Advertising, State Unfair Competition
Court: Southern District of Indiana
Judge: Judge Jane Magnus-Stinson
Referred To: Magistrate Judge Debra McVicker Lynch

Eli Lilly and Company v. Sebastian Wiradharma et al

Court Case Number: 1:13-cv-01802-RLY-TAB
File Date: Tuesday, November 12, 2013
Plaintiff: Eli Lilly and Company
Plaintiff Counsel: Jan M. Carroll of Barnes & Thornburg LLP
Defendant: Sebastian Wiradharma, Singpet Pte. Ltd.
Cause: Trademark Infringement, Unfair Competition, False Advertising, State Unfair Competition
Court: Southern District of Indiana
Judge: Judge Richard L. Young
Referred To: Magistrate Judge Tim A. Baker

Indiana Trademark Litigation Update – Ambre Blends v. doTERRA

Solace Complaint

Here’s a pretty straightforward trademark dispute. Plaintiff, an Indiana LLC, challenges the defendants’ use of the SOLACE trademark. Plaintiff uses the mark in connection with “essential and/or aromatic oils.” Defendant doTERRA’s Solace is a “proprietary blend of CPTG essential oils that have traditionally been used to balance hormones and manage the symptoms of PMS and the transitional phases of menopause.”

Ambre Blends, LLC v. doTERRA, Inc. et al

Court Case Number: 1:13-cv-01813-SEB-DML
File Date: Wednesday, November 13, 2013
Plaintiff: Ambre Blends, LLC
Plaintiff Counsel: Michael Z. Gordon, Jonathan G. Polak, Amy L. Wright of Taft Stettinius & Hollister LLP
Defendant: doTERRA, Inc., doTERRA International, LLC, Kerry Dodds
Cause: Trademark Infringement, False Designation of Origin, Unfair Competition, Forgery, Corrective Advertising Damages, Declaratory Judgment, Preliminary and Permanent Injunctive Relief
Court: Southern District of Indiana
Judge: Judge Sarah Evans Barker
Referred To: Magistrate Judge Debra McVicker Lynch

Indiana Trade Dress Litigation Update – Patachou v. Crust

Here’s an interesting case involving the trade dress of two Indianapolis neopolitan pizzerias (i.e. “fancy pizza”). Broad Ripple-based Napolese, owned by the same restauranteur as popular local brunch spot Patachou, has complained that the new Crust Pizzeria Napoletana has copied the look and feel of Napolese. Crust is owned by another local restauranteur, Mohey Osman, of The Egyptian Cafe fame.

Images from Complaint

Images from Complaint

In case you haven’t read it in awhile, here’s the preeminent decision in this area, the Supreme Court ruling in Two Pesos v. Taco Cabana.

I won’t get into the facts of Two Pesos (read the decision) or of the current Complaint (see below) but I have the following thoughts:

1. Taco Cabana was a chain with 6 locations open for 7 years by the time of the lawsuit. Napolese has had one location in Broad Ripple for four years. Is the Napolese trade dress well known, much less famous (to support the dilution claim), outside of mid-Marion County suburbanites?

2. Trade dress infringement cases are almost always brought in federal court. The Napolese complaint was filed in Marion County Court with no federal claims. This surely wasn’t by mistake, and makes me think a few things:

a. Napolese doesn’t consider their trade dress to be very strong beyond the local level.

The Complaint relies heavily on the fame of the Patachou brand but is light on discussion of the strength of the Napolese trade dress specifically, although the Napolese trade is what is actually at issue).

b. Napolese doesn’t want the formalities and high legal costs associated with federal court.

Few do.

c. Napolese may not intend to follow through with the lawsuit.

It’s possible the Complaint may just be a cost-effective method (cheaper than advertising) to alert the public that Crust is not associated with Napolese and also expose the many similarities, making Crust look tacky in the process. Napolese may be gambling that media pressure on Crust will force some modifications and they can drop the lawsuit before they get too deep.

The reality is that defending a lawsuit (particularly with a prestigious firm like Woodard Emhardt as counsel) is much more expensive than changing your logo and menu colors. The trade dress of Napolese and Crust is probably similar enough to defeat any counterclaim that this is a “frivolous” complaint, which could entitle Crust to attorney fees, so Napolese has the upper hand to drive this litigation as far as they want it to go.

3. One more thing to consider is the similarity of the trade dress of other neapolitan pizzerias across the state/country. If neopolitan pizzerias frequently utilize the stone oven/shield logo/bar stool/whatever, that info could affect both the “distinctiveness” analysis for the Napolese trade dress and the “likelihood of confusion” analysis in comparing Crust trade dress. I don’t usually eat fancy pizza so I can’t comment here.

What are your thoughts on the Complaint? More info about the lawsuit is available in the Indianapolis Star. Stay tuned to this blog for updates.

Patachou, Inc. v. Mohey Osman d/b/a Crust, and Crust

Court Case Number: 49D12 13 10 CT 038659
File Date: October 18, 2013
Plaintiff: Patachou, Inc.
Plaintiff Counsel: Jonathan G. Polak of Taft/
Defendant: Mohey Osman d/b/a Crust, and Crust
Defendant Counsel: Charles Meyer of Woodard, Emhardt, Moriarty, McNett & Henry
Cause: Common Law Trademark Infringement, Common Law Trade Dress Infringement, Dilution, Forgery, Preliminary and Permanent Injunctive Relief, Corrective Advertising Damages
Court: Marion County Court
Judge: TBD

Indiana Trademark Litigation Update – North American Van Lines v. North American Master Lines

North American Van Lines Inc. v. North American Master Lines Inc.

Court Case Number: 3:13-cv-00792-PPS-JEM
File Date: Friday, August 02, 2013
Plaintiff: North American Van Lines Inc.
Plaintiff Counsel: Edward A. Sullivan III, Daniel Tychonievich of Faegre Baker Daniels LLP
Defendant: North American Master Lines Inc.
Cause: Cybersquatting, Trademark Infringement, Unfair Competition, False Designation of Origin, Common Law Unfair Competition, Common Law Trademark Infringement
Court: Northern District of Indiana
Judge: Chief Judge Philip P. Simon
Referred To: Magistrate Judge John E. Martin