Mid-September 2021 Indiana Intellectual Property Litigation Update

It was a month of resolution for many of the Indiana Intellectual Property lawsuits that we’ve been tracking. There were just a few substantive filings and many continuations. Three new lawsuits were filed which all seem like they could turn into something interesting. Check out the monthly updates on prior filing below and stay tuned over the course of the next month for new cases.

Noble Romans, Inc. v. Gateway Triangle Corp. et al. (SD, filed 2/5/2021) – The parties held a telephonic settlement conference with no agreement or resolution. The Third Party Defendants have filed a Motion for Summary Judgment on the Abuse of Process claim.

Watch Communications v. Jarman et al. (SD, filed 3/8/2021) – The motion to intervene filed by National Farmers Union Property & Casualty Company was denied. An extension until September 22, 2021 has been granted to respond to the Counter Defendants’ Motion to Dismiss.

Vroom, Inc. v. Midwest Motors LLC et al. (SD, filed 3/24/2021) – The lawsuit was dismissed without prejudice on August 31, 2021.

Delta Faucet Company v. Iakovlev et al. (SD, filed 3/25/2021) – On August 20, 2021, a Motion for Default Judgment was filed against the non-responsive Defendant Iakovlev.

ABI Attachments, Inc. v. Kiser Arena Specialists, Inc. et al. (SD, filed 4/12/2021) – The stay in the lawsuit has been continued until September 17, 2021, with a telephonic status conference scheduled on September 16, 2021.

Triple LLL Truck Repair, Inc. v. Triple LLL, Inc. et al. (ND, filed 4/26/2021) – Nothing to report.

Energy Beverages LLC v. Full Throttle Automotive LLC (SD, filed 5/19/2021) – A Stipulation of Dismissal was filed on September 8, 2021 and simply awaits formal dismissal by the Court.

Monster Energy Company v. R&R Medical, LLC d/b/a Bear KompleX (ND, filed 5/26/2021) – The lawsuit was dismissed with prejudice on August 31, 2021.

Egglife Foods, Inc. v. Crepini, LLC (ND, filed 5/28/2021) – The Defendant’s response deadline has been extended to October 12, 2021.

Gatewood v. Webber Chappelle (ND, filed 6/4/2021) – On September 13, 2021, the Court provided notice that the action may be dismissed for failure to serve process.

Sears Authorized Hometown Stores, LLC v. Lynn Retails, Inc. et al. (SD, filed 6/4/2021) – The parties have begun filing witness and exhibit lists. A telephonic status conference is scheduled for October 29, 2021.

Noble Roman’s, Inc. v. AMI Stores Management, Inc. et al. (SD, filed 6/6/2021) – A settlement conference is scheduled on November 10, 2021. Noble Roman’s has filed an Amended Answer to Counterclaim and Third-Party Complaint.

Valqari LLC v. Dronedek Corporation et al. (SD, filed 6/16/2021) – The Defendant’s response deadline has been extended to October 7, 2021. An initial pretrial conference is now set for October 15, 2021. 

Fitzgerald et al. v. Murray et al. (SD, filed 6/18/2021) – On September 14, 2021, Magistrate Judge filed a Report and Recommendation that default judgment should be entered against Defendant Beacon Books for failure to respond to the Complaint.

Phoenix Intangibles Holding Company et al. v. Virk Brothers, LLC et al. (ND, filed 7/9/2021) – The Defendants filed an Answer on September 2, 2021.

Poulsen Roser A/S v. Gardens Alive, Inc. et al. (SD, filed 7/14/2021) – An initial pretrial conference is schedule for September 9, 2021. 

Haehl v. Dr. Brite, LLC (SD, filed 7/21/2021) – A telephonic Initial Pretrial Conference is schedule for October 13, 2021. The Defendant’s response deadline has been extended via a Motion for Extension of Time.

AWGI, LLC et al. v. CLD Trucking Co. d/b/a Atlas Moving Systems AMS (SD, filed 7/22/2021) – An Affidavit of Service was filed on August 4, 2021. No activity yet by Defendant. 

Berman v. Auralex Acoustics, Inc. (SD, filed 7/22/2021) – A Notice of Settlement was filed on September 8, 2021. The parties have been instructed to file a Stipulation of Dismissal by October 8, 2021.

RE/MAX, LLC et al. v. Dulin et al. (SD, filed 8/24/2021) – The Defendants’ counsel have filed appearances on September 3, 2021. No other updates.

Bubbles Ice Cream Parlor & Pie Shoppe, Inc. v. Scoops & Sweet Bubbles, LLC (ND, filed 8/25/2021) – Defendant’s counsel Paul Overhauser filed a Motion for Extension of Time to File Response on September 8, 2021.

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – The Summons was returned executed on September 7, 2021. No other updates.

August 2021 Updates

July 2021 Updates

June 2021 Updates

May 2021 Updates

April 2021 Updates

RV Manufacturer Sues Competitor For Use of Confusingly Similar Trademarks (Della Terra vs. Terra)

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Both parties in this trademark infringement lawsuit are recreational vehicle (“RV”) manufacturers from Indiana. Did you know that Elkhart, Indiana is the RV Capital of the World?

The Plaintiff is Forest River, Inc. of Elkhart, Indiana. They began using the unregistered DELTA TERRA trademark in connection with recreational vehicles in March 2018. Their “mountain” logo was adopted shortly after in April 2018.

The Defendant is inTech Trailers, another RV manufacturer from the Elkhart region. They allegedly introduced a new line of RVs called “Terra” in November 2020, along with its own mountain design.

The Plaintiff first notified Defendant of its allegedly infringing activities in December 2020 but there has been no cessation of activity. The Complaint (below) asserts that some of Defendant’s leadership has past ties to Plaintiff, so there may be more to this story than meets the eye. However, even judged at face value, the marks do seem similar. Any distinctions in the mountain designs would certainly be blurred and possibly indistinguishable as these RVs roll by you on the highway. Even if understood to be different product lines, a consumer might reasonably think that both “Delta Terra” and “Terra” RVs emanate from the same manufacturer.

The Defendant has been aware of the Plaintiff’s objections since December 2020, so they should be ready to defend their trademarks and will be expected to file an Answer soon. Stay tuned for updates.

Forest River, Inc. v. inTech Trailers, Inc.

Case Number: 3:21-cv-00645-DRL-MGG
File Date: Tuesday, August 31, 2021
Plaintiff: Forest River, Inc.
Plaintiff Counsel: Philip R. Bautista, JoZeff W. Gebolys, Tracy N. Betz, Stephanie A. Kortokrax of Taft Stettinius & Hollister LLP
Defendant: inTech Trailers, Inc.
Cause: Federal Trademark Infringement, State Trademark Infringement, Common Law Unfair Competition
Court: Northern District of Indiana
Judge: Damon R. Leichty
Referred To: Michael G. Gotsch, Sr

Complaint:

“Bubbles” vs. “Scoops and Sweet Bubbles” for Ice Cream Parlors…are you confused?

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Since 2004, the Plaintiff has operated an ice cream parlor called “Bubbles” in Michigan City, Indiana. The Plaintiff does not have a registered trademark. Their red, white and blue logo includes several bubbles and an ice cream cone.

In July 16, the Defendant opened a new ice cream parlor called “Scoops & Sweet Bubbles” just 1.5 miles from the Plaintiff’s store. Defendant’s logo is cyan, green and gray, with some abstract shapes and some textual elements describing their products, including bubble tea. It seems clear that “Sweet Bubbles” from Defendant’s name refers to the bubble tea on their latin-flavored menu. The Plaintiff’s menu does not include bubble tea.

The Complaint (below) asserts that Plaintiff first proposed an amicable resolution but was ignored and then overtly rejected. They now seek court intervention.

What do you think? Is Scoops & Sweet Bubbles confusingly similar to Bubbles, particularly considering they are located only 1.5 miles apart? The closest nearby business with “bubbles” in the name is Tiny Bubbles of Chesterton, a car wash 11 miles down the highway.

Stay tuned for updates.

Bubbles Ice Cream Parlor & Pie Shoppe, Inc. v. Scoops & Sweet Bubbles, LLC

Case Number: 3:21-cv-00634
File Date: Wednesday, August 25, 2021
Plaintiff: Bubbles Ice Cream Parlor & Pie Shoppe, Inc.
Plaintiff Counsel: Gary E. Hood, Brian Anderson, John Snow of Polsinelli PC
Defendant: Scoops & Sweet Bubbles, LLC
Cause: Federal Trademark Infringement, False Designation of Origin, Unfair Competition, State Trademark Infringement, Common Law Unfair Competition
Court: Northern District of Indiana
Judge: Damon R. Leichty
Referred To: Michael G. Gotsch, Sr.

Complaint:

RE/MAX sues Realtor Franchisee for Competing Against His Own Franchises

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Apparently all the intellectual property litigators in Indiana took nice long summer vacations, as this is the first new IP lawsuit filed in over two months (since July 22, 2021). After the long wait, the lawsuit we get is mostly about the breakdown of a 10-year franchise relationship.

The Plaintiff is RE/MAX, a global franchisor of real estate brokerage services.

The Defendant is a franchisee accused of numerous violations of the franchise agreement, including actively competing against his own franchises, sending sales associates to a competitor, and enabling competing agents to operate out of RE/MAX locations.

These franchise lawsuits always have two sides, so it’s typically a good idea to read both the Complaint and the Defendant’s Answer for a better picture of how a 10-year franchise relationship breaks down to the point of a lawsuit. Stay tuned for updates.

RE/MAX, LLC et al v. Dulin et al.

Case Number: 1:21-cv-02321-TWP-TAB
File Date: Tuesday, August 24, 2021
Plaintiff: RE/MAX, LLC, RE/MAX Integrated Regions, LLC
Plaintiff Counsel: Lucy Dollens of Quarles & Brady LLP, Kathryn A. Reilly, Thomas A. Olsen, Chuan (CiCi) Cheng of Wheeler Trigg O’Donnell LLP
Defendant: James E. Dulin II, The Hamilton Group, Inc.
Cause: Breach of Contract, Federal Trademark Infringement, Unfair Competition, Declaratory Relief
Court: Southern District of Indiana
Judge: Tanya Walton Pratt
Referred To: Tim A. Baker

Complaint:

Mid-August 2021 Indiana Intellectual Property Litigation Update

Summer is winding down but several Indiana trademark and copyright lawsuits are just heating up. A few cases were dismissed since last month’s update and there are only a few documents worth highlighting this month. However, with numerous pretrial or settlement conferences scheduled in the next few weeks, there should be plenty to report in next month’s update. For now, here are the mid-August 2021 Indiana Intellectual Property Litigation updates:

Noble Romans, Inc. v. Gateway Triangle Corp. et al. (SD, filed 2/5/2021) – On August 12, the parties filed their respective Statement of Claims (below) and a telephonic Settlement Conference is scheduled for August 20, 2021.

Watch Communications v. Jarman et al. (SD, filed 3/8/2021) – On August 10, 2021, the National Farmers Union Property & Casualty Company, an insurance, has filed a motion to intervene to determine its rights and responsibilities to the Plaintiff under a liability insurance policy.

La Michoacana Meat Market TM Holdings, LLC v. Galan et al. (ND, filed 3/9/2021) – A Notice of Voluntary Dismissal was filed on July 29, 2021 and the lawsuit was dismissed with prejudice on August 3, 2021.

Vroom, Inc. v. Midwest Motors LLC et al. (SD, filed 3/24/2021) – The parties have settled and have been granted until August 27, 2021 to file the appropriate dismissal papers.

Delta Faucet Company v. Iakovlev et al. (SD, filed 3/25/2021) – A Protective Order was issued on August 5, 2021 regarding the use and disclosure of discovery produced by nonparty Amazon.

ABI Attachments, Inc. v. Kiser Arena Specialists, Inc. et al. (SD, filed 4/12/2021) – On August 12, 2021, the Plaintiff filed a Motion to Stay all deadlines until the next status conference. This is likely an indication that settlement is close.

Triple LLL Truck Repair, Inc. v. Triple LLL, Inc. et al. (ND, filed 4/26/2021) – Nothing to report.

Energy Beverages LLC v. Full Throttle Automotive LLC (SD, filed 5/19/2021) – A settlement has been reached. On July 28, 2021, the Court ordered that dismissal documents be filed within 28 days.

Monster Energy Company v. R&R Medical, LLC d/b/a Bear KompleX (ND, filed 5/26/2021) – The Defendant’s response deadline has been extended to August 30, 2021.

Egglife Foods, Inc. v. Crepini, LLC (ND, filed 5/28/2021) – The Defendant’s counsel, John A. Conway, filed an appearance on August 13, 2021. Nothing else to report.

Gatewood v. Webber Chappelle (ND, filed 6/4/2021) – No update yet.

Sears Authorized Hometown Stores, LLC v. Lynn Retails, Inc. et al. (SD, filed 6/4/2021) – An initial pretrial conference is set for August 18, 2021.

Noble Roman’s, Inc. v. AMI Stores Management, Inc. et al. (SD, filed 6/6/2021) – A settlement conference is scheduled on November 10, 2021.

Valqari LLC v. Dronedek Corporation et al. (SD, filed 6/16/2021) – An initial pretrial conference is set for September 30, 2021.

Fitzgerald et al. v. Murray et al. (SD, filed 6/18/2021) – The Defendant Beacon Books filed a Motion to Dismiss on July 26, 2021, but it was stricken by the Court because it was filed by the Defendant’s Director rather than counsel (a requirement for corporations). Beacon Books filed a document on August 11, 2021 requesting to be assigned a state attorney.

Phoenix Intangibles Holding Company et al. v. Virk Brothers, LLC et al. (ND, filed 7/9/2021) – A telephonic Rule 16 Preliminary Pretrial Conference is scheduled for September 2, 2021.

Poulsen Roser A/S v. Gardens Alive, Inc. et al. (SD, filed 7/14/2021) – An initial pretrial conference is schedule for September 9, 2021.

Haehl v. Dr. Brite, LLC (SD, filed 7/21/2021) – An Affidavit of Service was filed on July 29, 2021. No activity yet by Defendant.

AWGI, LLC et al. v. CLD Trucking Co. d/b/a Atlas Moving Systems AMS (SD, filed 7/22/2021) – An Affidavit of Service was filed on August 4, 2021. No activity yet by Defendant.

Berman v. Auralex Acoustics, Inc. (SD, filed 7/22/2021) – An Affidavit of Service was filed on July 28, 2021. No activity yet by Defendant.

July 2021 Updates

June 2021 Updates

May 2021 Updates

April 2021 Updates