Austin-based Photographer sues Portland, Indiana Car Dealership for Copyright Infringement

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The plaintiff in this copyright lawsuit is a professional photographer from Austin, Texas. His work is focused on architectural and landscape photography.

One defendant, Lynn Boolman Auto Sales (“Boolman”), is a used car dealership in Portland, Indiana.

The other defendant, Carsforsale.com, is an online auto marketplace operating out of Sioux Falls, South Dakota. It seems from the Complaint (below) that both defendants made an unauthorized use of one of the plaintiff’s landscape photographs, including cropping the photograph to remove the photographer’s signature.

It is not clear whether there is any other connection between the two defendants besides both using the photograph. Jurisdiction over Carsforsale.com seems tenuous. At least from the Complaint and related Exhibit (below), I don’t see any action that Carsforsale.com took in Indiana, either if they first posted the photograph online or if Boolman posted it to their website.

In addition to the Copyright Infringement claim, the Complaint also includes a claim for Removal of Copyright Management Information, based on the cropping of the author’s signature. However, one of the more interesting and unusual aspects of the lawsuit is the plaintiff’s third claim for Addition of False Copyright Management Information, based on the car dealership overlaying its own logo and contact information onto the (cropped) plaintiff’s photograph. Presumably, the dealership will maintain that the information added to the photograph does not identify the author or copyright owner, and thus doesn’t qualify as “copyright management information” (see definition here).

The plaintiff made prior unsuccessful attempts to negotiate with the defendants in December 2021 and January 2022. Finding no satisfactory resolution, the plaintiff now seeks the intervention of the Court. Photography copyright lawsuits often settle quickly, but stay tuned for updates.

Stross v. Lynn Boolman Auto Sales Limited Liability Company et al

Court Case Number: 3:23-cv-00061-DRL-MGG
File Date: January 25, 2023
Plaintiff: Alexander Bayonne Stross
Plaintiff Counsel: Evan A. Andersen of SRIPLAW, P.A.
Defendants: Lynn Boolman Auto Sales Limited Liability Company, Carsforsale.com, Inc.
Cause: Copyright Infringement, Removal of Copyright Management Information, Addition of False Copyright Management Information
Court: Northern District of Indiana
Judge: Damon R. Leichty
Referred To: Michael G. Gotsch, Sr.

Complaint:

Exhibit 2:

January 2023 Indiana Intellectual Property Litigation Update

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As usual, there was not much action over the holiday period in Indiana copyright and trademark lawsuits. The big surprise of the last month was a Notice of Settlement filed in the Omi in a Hellcat “Reloaded” lawsuit on December 23, 2022. Terms of settlement have not been made public and we’re still awaiting the dismissal documents, but it seems to have come rather abruptly considering recent filings.

The next few months should be busier as new judges take over existing lawsuits. Stay tuned for updates.

Sears Authorized Hometown Stores, LLC v. Lynn Retail, Inc. et al. (SD, filed 6/4/2021) – Plaintiff’s deadline to serve final witness and exhibit lists has been extended to January 20, 2023.

Noble Roman’s, Inc. v. AMI Stores Management, Inc. et al. (SD, filed 6/6/2021) –  Noble Roman’s filed a Motion for Summary Judgment on December 21, 2022.

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – The parties filed a Joint Status Report with several updates.

Thomas v. ooShirts, Inc. et al. (SD, filed 9/24/2021) – The Defendants filed an Answer on January 11, 2023, after receiving leave to file after their deadline. The parties held a status conference with the Court on January 12, 2023 and another is scheduled on February 8, 2023.

Edutainment Live, LLC v. Video Game Palooza et al. (SD, filed 10/11/2021) –  No update this month.

Innovative Sports Management Inc. v. La Jalisco LLP (SD, filed 12/15/2021) –  A default judgment was entered on December 15, 2022. In total, the Plaintiff was awarded $42,000.48.

Gabet et al. v. Amazon.com. Inc. et al. (ND, filed 1/20/2022) – A settlement conference is scheduled for August 31, 2023.

Reid v. Stephenson (SD, filed 1/27/2022) – A telephonic status conference was scheduled for January 24, 2023 but the case was subsequently assigned to Magistrate Judge M. Kendra Klump. The new case number is 1:22-cv-00205-JRS-MKK.

NuStar Enterprises LLC v. Reloaded Merch LLC et al. (ND, filed 4/1/2022) – A joint Notice of Settlement was filed on December 23, 2022. The plaintiff was given 30 days to file dismissal documents.

The Evolutionary Level Above Human, Inc. v. Havel et al (ND, filed 5/18/2022) –  A video motion hearing is scheduled for February 10, 2023, to discuss Defendant Bartel’s pending motions.

PUMA SE et al. v. Brooks Sports, Inc. (SD, filed 7/8/2022) – The Court entered a Uniform Stipulated Protective Order on December 19, 2022. No other updates.

Broadcast Music, Inc. et al v. Thirty-Six Saloon, LLC d/b/a Thirty Six Saloon et al. (SD, filed 7/27/2022) – No update this month.

Schwartz v. Kilroy’s North America, LLC et al (SD, filed 8/5/2022) – A telephonic status conference was held on January 9, 2023. A settlement conference will be schedule by separate order.

Oakley, Inc. v. Batter’s Box Training, LLC et al (SD, filed 8/11/2022) – Plaintiff has been authorized to file a motion to compel Defendants’ tax returns. A telephonic status conference is set for February 3, 2023.

Honest Abe Roofing franchise, Inc. v. DCH & Associates, LLC et al. (SD, filed 9/7/2022) – On December 7, 2022, a Clerk’s Entry of Default was entered against Defendants Christine Harris, Dameion Harris, and Honest Abe Roofing of Macon Georgia, LLC. On January 11, 2023, the Motion for Clerk’s Entry of Default against Defendant DCH & Associates, LLC was denied for lack of proper service.

Phoenix USA RV, Inc. v. Hoosier Custom Cruisers LLC et al. (ND, removed 10/7/2022) – No update this month.

MaddenCo Inc. v. Reed et al. (SD, filed 10/31/2022) – On December 27, 2022, the Plaintiff filed its Response to Defendant Reed’s Motion to Dismiss for Lack of Jurisdiction.

After receiving an extension of time, Defendant Reed’s Reply was filed on January 10, 2023.

The Center for Gestalt Development, Inc. v. Bowman (SD (11/09/2022) – On January 13, 2023, Defendant Bowman filed a Motion to Dismiss for Lack of Venue.

1.4G Holdings, LLC v. North Central Industries, Inc. et al. (SD 1/05/2023) – No update yet.

December 2022 Updates –  December 2021 Updates

Fireworks involved in first Indiana Trademark Lawsuit of 2023

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Happy New Year! It didn’t take long to get the first Indiana trademark (and trade dress) lawsuit of 2023, and in continuation of the festive celebrations, it involves fireworks.

The Defendants are alleged to be selling fireworks that infringe the Plaintiff’s registered TIKI, GHOST, and XL trademarks, as well as a “Tiki Trade Dress”.

The parties seem to be all major players in the fireworks industry, so they likely have some history. The Plaintiff has registered trademarks and it seems that the Defendants introduced new competing products utilizing similar marks after the registration date. As always, the Defendants’ Answer may tell another side of the story so stay tuned for updates.

1.4G Holdings, LLC v. North Central Industries, Inc. et al.

Court Case Number: 1:23-cv-00037-TWP-MG
File Date: January 5, 2023
Plaintiff: 1.4G Holdings, LLC
Plaintiff Counsel: Philip R. Zimmerly of Bose McKinney & Evans LLP
Defendants: North Central Industries, Inc., Great Grizzly, Inc., R.Brown, Inc.
Cause: Federal Trademark Infringement, False Designation of Origin, Trade Dress Infringement, Misappropriation
Court: Southern District of Indiana
Judge: Tanya Walton Pratt
Referred To: Mario Garcia

Complaint:

December 2022 Indiana Intellectual Property Litigation Update

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There were no new trademark or copyright lawsuits filed in Indiana in the last month. However, there were some interesting developments in existing cases. A Florida husband/wife marketing team never appeared and received a judgment against them for $159,000. Youtube Celebrity Omi in a Hellcat filed an Amended Counterclaims further asserting his ownership of the RELOADED brand and momentarily rendering moot a Motion to Dismiss. Puma has filed its answer to Brooks’ counterclaims, setting up an epic shoe design battle that could last all of next year. The Court in The Center for Gestalt Development lawsuit is currently deliberating on a fully-briefed Motion to Stay of Proceedings and to Require Plaintiff to Pay Defendant’s Costs of Previously Dismissed Suit. Read on below for details on all pending lawsuits.

Happy holidays to everyone. See you in January for all the latest Indiana Intellectual Property Litigation Updates.

Sears Authorized Hometown Stores, LLC v. Lynn Retail, Inc. et al. (SD, filed 6/4/2021) – No update this month.

Noble Roman’s, Inc. v. AMI Stores Management, Inc. et al. (SD, filed 6/6/2021) – No update this month.

AWGI, LLC et al. v. CLD Trucking Co. d/b/a Atlas Moving Systems AMS (SD, filed 7/22/2021) – No update this month. 

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – Deadlines in the Scheduling Order have been continued via motion.

Thomas v. ooShirts, Inc. et al. (SD, filed 9/24/2021) – An Amended Complaint was filed on November 29, 2022. On December 14, 2022, the parties filed a Joint Status Report hinting at an impending discovery dispute.

Edutainment Live, LLC v. Video Game Palooza et al. (SD, filed 10/11/2021) –  The parties have filed their Witness and Exhibit Lists.

Innovative Sports Management Inc. v. La Jalisco LLP (SD, filed 12/15/2021) –  A Motion for Default Judgment was filed by the Plaintiff on November 21, 2022.

Gabet et al. v. Amazon.com. Inc. et al. (ND, filed 1/20/2022) – The case has been assigned to Mark J. Dinsmore. The new case number is 1:22-cv-02246-JPH-MJD.

Reid v. Stephenson (SD, filed 1/27/2022) – The case has been assigned to Mark J. Dinsmore. The new case number is 1:22-cv-00205-JRS-MJD.

NuStar Enterprises LLC v. Reloaded Merch LLC et al. (ND, filed 4/1/2022) – The Plaintiff filed its Answer to Counterclaims on November 22, 2022. The Defendants then filed an Amended Answer to Complaint on December 7, 2022. The Plaintiff has until December 23, 2022 to reply to the Amended Counterclaims.

Mapes v. Top Tier Marketers LLC d/b/a Artfily et al. (SD, filed 4/4/2022) – On December 8, final judgment was entered and the Plaintiff was awarded $150,000 in statutory damages, reasonable attorneys’ fees in the amount of $7,714.22 and reasonable costs in the amount of $2,007.52.

The Evolutionary Level Above Human, Inc. v. Havel et al (ND, filed 5/18/2022) – No update this month.

PUMA SE et al. v. Brooks Sports, Inc. (SD, filed 7/8/2022) – Puma filed its Answer to Counterclaims on November 23, 2022.

Broadcast Music, Inc. et al v. Thirty-Six Saloon, LLC d/b/a Thirty Six Saloon et al. (SD, filed 7/27/2022) – No update this month. 

Schwartz v. Kilroy’s North America, LLC et al (SD, filed 8/5/2022) – Trial has been set for March 11, 2024 (Yes, that’s 2024. “The wheels of justice grind slow but grind fine.” – Sun Tzu).

Oakley, Inc. v. Batter’s Box Training, LLC et al (SD, filed 8/11/2022) – A telephonic status conference is scheduled for January 6, 2023.

Honest Abe Roofing franchise, Inc. v. DCH & Associates, LLC et al. (SD, filed 9/7/2022) – The plaintiff filed a Motion for Clerk’s Entry of Default on December 6, 2022.

Phoenix USA RV, Inc. v. Hoosier Custom Cruisers LLC et al. (ND, removed 10/7/2022) – The Court entered a Scheduling Order on December 6, 2022.

MaddenCo Inc. v. Reed et al. (SD, filed 10/31/2022) – On December 5, 2022, Defendant filed a Motion to Dismiss for Lack of Jurisdiction.

The Center for Gestalt Development, Inc. v. Bowman (SD (11/09/2022) – On November 29, 2022, the case was reassigned to Judge Richard L. Young and Magistrate Tim A. Baker. The new case number is 1:22-cv-02185-RLY-TAB. The Court has yet to rule on the Defendant’s fully-briefed Motion to Stay of Proceedings and to Require Plaintiff to Pay Defendant’s Costs of Previously Dismissed Suit.

November 2022 UpdatesOctober 2022 Updates – September 2022 Updates – August 2022 Updates – July 2022 Updates

June 2022 Updates – May 2022 Updates – April 2022 Updates – March 2022 Updates

February 2022 Updates– January 2022 Updates – December 2021 Updates

November 2022 Indiana Intellectual Property Litigation Update

It’s cold again, snow is falling, so let’s get caught up on all of the latest updates in Indiana copyright and trademark litigation. It’s always good to see both sides of the story, and we got that this month with numerous Answers (and Counterclaims) finally being filed. Check out all of the November updates and some of the more interesting filings below.

Sears Authorized Hometown Stores, LLC v. Lynn Retail, Inc. et al. (SD, filed 6/4/2021) – On November 1, 2022, the case was reassigned to Magistrate Judge Kellie M. Barr. No other updates this month. The new case number is 4:21-cv-00091-JMS-KMB,

Noble Roman’s, Inc. v. AMI Stores Management, Inc. et al. (SD, filed 6/6/2021) – The Court has extended, by motion, the dispositive motion deadline to January 2, 2023. There’s nothing quite like drafting dispositive motions over the holidays, am I right, litigators?

AWGI, LLC et al. v. CLD Trucking Co. d/b/a Atlas Moving Systems AMS (SD, filed 7/22/2021) – No update this month.

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – No update this month.

Thomas v. ooShirts, Inc. et al. (SD, filed 9/24/2021) – On November 4, 2022, the Plaintiff filed a Motion for Leave to Amend Complaint to join Raymond Lei, the owner of Defendant ooShirts, Inc. ooShirts filed its Response on November 10, 2022.

Edutainment Live, LLC v. Video Game Palooza et al. (SD, filed 10/11/2021) –  On November 1, 2022, the case was reassigned to Magistrate Judge Kellie M. Barr. No other updates this month. The new case number is 1:21-cv-02611-JMS-KMB,

Innovative Sports Management Inc. v. La Jalisco LLP (SD, filed 12/15/2021) –  The Court has scheduled a Status Conference on 12/7/2022. Presumably, if the Defendant does not participate, the Court will take action on the June Clerk’s Entry of Default.

Gabet et al. v. Amazon.com. Inc. et al. (ND, filed 1/20/2022) – No update this month.

Reid v. Stephenson (SD, filed 1/27/2022) – A Clerk’s Entry of Default was entered on October 24, 2022 against Lance Stephenson for failure to plead or otherwise defend.

NuStar Enterprises LLC v. Reloaded Merch LLC et al. (ND, filed 4/1/2022) – On November 2, 2022, the Defendants filed an Amended Answer and Counterclaims.

The Counterclaims make an allegation that the manager of Plaintiff, Carter, is essentially running a predatory trademark scam, in that he “sometimes scavenges the Internet for unsuspecting online celebrities/social-media influencers, and attempts to exploit these online celebrities/social-media influencers by copying their brands and/or persona, filing trademark applications to register on the Principal Register of the USPTO with alleged dates of first use that Carter believes predate the online celebrities’/social-media influencers’ first date of use, and then Carter uses NuStar to attempt to highjack the online celebrities’/social-media influencers’ brand and/or exploit a settlement through litigation, or the threat of litigation or trademark challenges.”

Mapes v. Top Tier Marketers LLC d/b/a Artfily et al. (SD, filed 4/4/2022) – On November 1, 2022, the case was reassigned to Magistrate Judge Kellie M. Barr. No other updates this month. The new case number is 4:22-cv-00110-JMS-KMB.

The Evolutionary Level Above Human, Inc. v. Havel et al (ND, filed 5/18/2022) – Over ten different status reports and motions have been filed in the last month, so I encourage those following this lawsuit closely to go check them all out.

PUMA SE et al. v. Brooks Sports, Inc. (SD, filed 7/8/2022) – Defendant Brooks Sports, Inc. filed its Answer and Amended Counterclaims on November 9, 2022. Brooks includes several counterclaims for declaratory judgment of no rights and non-infringement. To spice things up, Brooks also included a counterclaim of abuse of process against Puma.

Broadcast Music, Inc. et al v. Thirty-Six Saloon, LLC d/b/a Thirty Six Saloon et al. (SD, filed 7/27/2022) – No update this month.

Schwartz v. Kilroy’s North America, LLC et al (SD, filed 8/5/2022) – The Defendants filed an Answer on October 26, 2022. On November 1, 2022, the case was reassigned to Magistrate Judge Kellie M. Barr. No other updates this month. The new case number is 1:22-cv-01563-SEB-KMB.

Oakley, Inc. v. Batter’s Box Training, LLC et al (SD, filed 8/11/2022) – A Protective Order was entered on November 7, 2022. Various witness and exhibits lists have been filed by the parties.

Honest Abe Roofing franchise, Inc. v. DCH & Associates, LLC et al. (SD, filed 9/7/2022) – On November 3, 2022, the Court ruled that the Plaintiff’s motion for preliminary injunction was unwarranted.

Phoenix USA RV, Inc. v. Hoosier Custom Cruisers LLC et al. (ND, removed 10/7/2022) – The Defendants filed an Answer on October 31, 2022.

MaddenCo Inc. v. Reed et al. (SD, filed 10/31/2022) – There have been a few administrative filings but no substantive updates yet.

Mickles v. OnStar General Motors – U.K. (SD 11/04/2022) – The lawsuit was closed on November 10, 2022 and the Court has recommended sanctions against the plaintiff for frivolous filings.

The Center for Gestalt Development, Inc. v. Bowman (SD (11/09/2022) – No substantive updates yet.

October 2022 UpdatesSeptember 2022 UpdatesAugust 2022 Updates – July 2022 Updates

June 2022 Updates – May 2022 Updates – April 2022 Updates – March 2022 Updates

February 2022 Updates– January 2022 Updates – December 2021 Updates