Author Archives: Kenan Farrell

Atlas Van Lines sues Atlas Moving Systems for Trademark Infringement, Unfair Competition

27 Tuesday Jul 2021

Posted by in Indiana, Intellectual Property, Litigation, Southern District of Indiana, Trademark

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The Plaintiffs in this trademark lawsuit, Atlas Van Lines of Evansville, Indiana, have been transporting goods under the name “Atlas” since 1948. The Atlas family of companies includes more than 430 independent Atlas agencies across the U.S. and Canada, plus authorized partners in 140 countries.

The Defendant is alleged to have offered its moving services to the public since 2015 under the fictitious business name “Atlas Moving Systems AMS,” constituting trademark infringement and unfair competition.

The Plaintiffs first sent a cease-and-desist letter to the Defendants in September 2017. A follow-up letter was sent in November 2020, over three (3) years later. There is no explanation given in the Complaint (below) for the lengthy delay by Plaintiffs in enforcing their trademark rights. However, a Motion for Preliminary Injunction has also been filed along with the Complaint so they’ve clearly determined that they can now no longer abide the Defendants’ ongoing presence in the marketplace. The supporting Memorandum (below) documents instances of actual consumer confusion.

Stay tuned for updates.

AWGI, LLC et al. v. CLD Trucking Co. d/b/a Atlas Moving Systems AMS

Case Number: 3:21-cv-00117-RLY-MPB
File Date: Thursday, July 22, 2021
Plaintiff: AWGI, LLC, Atlas Van Lines, Inc.
Plaintiff Counsel: Mark. F. Warzecha, Esq. of Wideman Malek, PL
Defendant: CLD Trucking Co. d/b/a Atlas Moving Systems AMS
Cause: Federal Trademark Infringement, Common Law Unfair Competition
Court: Southern District of Indiana
Judge: Richard L. Young
Referred To: Matthew P. Brookman

Complaint:

Memorandum in Support of Plaintiff’s Motion for Preliminary Injunction:

Cute/Horrifying Baby Teeth Photograph Leads to Copyright Infringement Lawsuit

26 Monday Jul 2021

Posted by in Copyright, Indiana, Intellectual Property, Litigation, Southern District of Indiana

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The Plaintiff in this copyright lawsuit is an infant photographer who uses photo editing software to add teeth to her infant subjects. Depending on your aesthetic tastes, the resulting photographs range somewhere between cute and horrifying.

The Defendant sells teeth whitening and oral care products and allegedly used one of the Plaintiff’s photographs in a Facebook advertisement in August 2019. The photograph was altered to whiten the teeth and remove the Plaintiff’s watermark. The advertisement (below) included a link to the Defendant’s website and a “Shop Now” button.

It’s hard to see this lawsuit going very far; it’s slightly ridiculous it had to be filed at all. This situation seems like it would be a perfect fit for a small claims copyright court. Hopefully the parties can soon find an amicable resolution, like an appropriate license fee, for the (possibly) 4one-time use of Plaintiff’s photograph. If the Defendant somehow determines it would make more sense to litigate, we might see them challenge jurisdiction in Indiana.

Stay tuned for updates.

Haehl v. Dr. Brite, LLC

Case Number: 1:21-cv-02072-JPH-MJD
File Date: Wednesday, July 21, 2021
Plaintiff: Amy Haehl
Plaintiff Counsel: Bradley M. Stohry of Reichel Stohry Dean LLP
Defendant: Dr. Brite, LLC
Cause: Direct Copyright Infringement, Vicarious Copyright Infringement, Removal or Alteration of Copyright Management Information
Court: Southern District of Indiana
Judge: James Patrick Hanlon
Referred To: Mark J. Dinsmore

Complaint:

Mid-July 2021 Indiana Intellectual Property Litigation Update

16 Friday Jul 2021

Posted by in Copyright, Indiana, Intellectual Property, Litigation, Northern District of Indiana, Southern District of Indiana, Trademark

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I hope everyone is having a great summer. The last month brought us a few interesting new trademark lawsuits in Indiana and four Answers in ongoing cases. The Courts seem to be fully back in action following a long pandemic lull. Without further ado, here are the mid-July 2021 Indiana Intellectual Property Litigation updates:

Noble Romans, Inc. v. Gateway Triangle Corp. et al. (SD, filed 2/5/2021) – The parties had a telephonic status conference with the Court on June 21 and both parties report discovery is largely complete. This case is set for an in-person settlement conference on Friday, August 20.

Heartland Consumer Products LLC v. Speedway, LLC (SD, filed 2/5/2021) – The lawsuit was dismissed on June 24, 2021 pursuant to a Notice of Voluntary Dismissal.

Watch Communications v. Jarman et al. (SD, filed 3/8/2021) – An Answer to the First Amended Complaint and Amended Counterclaim and Third-Party Complaint was filed on June 30, 2021, with additional details about the parties’ interactions.

La Michoacana Meat Market TM Holdings, LLC v. Lopez et al. (SD, filed 3/9/2021) – The lawsuit was dismissed on June 17, 2021 pursuant to a Notice of Voluntary Dismissal.

La Michoacana Meat Market TM Holdings, LLC v. Galan et al. (ND, filed 3/9/2021) – On July 12, 2021, the Defendants filed their Answer.

Vroom, Inc. v. Midwest Motors LLC et al. (SD, filed 3/24/2021) – The parties had a telephonic status conference with the Court on June 23, 2021. They were ordered to report on the status of settlement by July 23, 2021.

Delta Faucet Company v. Iakovlev et al. (SD, filed 3/25/2021) – No update.

ABI Attachments, Inc. v. Kiser Arena Specialists, Inc. et al. (SD, filed 4/12/2021) – An Answer was filed on June 16, 2021.

Triple LLL Truck Repair, Inc. v. Triple LLL, Inc. et al. (ND, filed 4/26/2021) – The Defendants did not respond to the Complaint by a July 7, 2021 deadline. Nothing else to report.

Energy Beverages LLC v. Full Throttle Automotive LLC (SD, filed 5/19/2021) – The Defendant has been granted an extension until July 30, 2021 to respond to the Complaint.

Monster Energy Company v. R&R Medical, LLC d/b/a Bear KompleX (ND, filed 5/26/2021) – A Rule 16 Preliminary Pretrial Conference is currently scheduled for July 29, 2021, although a consent motion to reschedule and extend deadlines was filed on July 15, 2021.

Egglife Foods, Inc. v. Crepini, LLC (ND, filed 5/28/2021) – No update yet.

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) – Defense counsel (Van T. Willis) filed an Appearance on July 6, 2021 but no other updates.

Noble Roman’s, Inc. v. AMI Stores Management, Inc. et al. (SD, filed 6/6/2021) – An Answer was filed on July 9, 2021. An initial pretrial conference is set for August 3, 2021.

Valqari LLC v. Dronedek Corporation et al. (SD, filed 6/16/2021) – No update yet.

Fitzgerald et al. v. Murray et al. (SD, filed 6/18/2021) – No update yet.

Phoenix Intangibles Holding Company et al. v. Virk Brothers, LLC et al. (ND, filed 7/9/2021) – No update yet.

Poulsen Roser A/S v. Gardens Alive, Inc. et al. (SD, filed 7/14/2021) – No update yet.

June 2021 Updates

May 2021 Updates

April 2021 Updates

Poulsen files Trademark Lawsuit in Indiana over Counterfeit “Ingrid Bergman” Roses

15 Thursday Jul 2021

Posted by in Indiana, Intellectual Property, Litigation, Southern District of Indiana, Trademark

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What’s in a name? That which we call a rose
By any other name would smell as sweet –William Shakespeare, Romeo & Juliet

Poulsen Roser is a family-owned Danish company world-famous for its breeding of distinctive rose varieties, for which it obtains patent and trademark protection. A lawsuit has been filed in the Southern District of Indiana involving their INGRID BERGMAN rose, a “unique currant red hybrid tea rose variety.” Poulsen owns a U.S. trademark registration for INGRID BERGMAN in connection with “live roses.”

The Defendants operate one of the U.S.’s largest wholesale rose growers, distributing flowers to garden centers, nurseries, and mail order outlets.

This lawsuit arises because the Defendants are allegedly producing, advertising, selling, and distributing unauthorized roses using the Poulsen’s INGRID BERGMAN mark. Further bibliographical information on the Defendants’ website about their “counterfeit” roses (see screenshot) might suggest to consumers that they are in fact authentic Poulsen roses.

Surely this situation can’t be as cut and dried as the Complaint (below) would imply. A large wholesale grower like the Defendants would certainly understand the implications of selling unauthorized rose varieties and know they couldn’t escape detection. We’ll have to stay tuned for their Answer and another possible side of the story.

Poulsen Roser A/S vs. Gardens Alive, Inc. et al.

Case Number: 4:21-cv-00113-SEB-DML
File Date: Wednesday, July 14, 2021
Plaintiff: Poulsen Roser A/S
Plaintiff Counsel: Louis T. Perry of Faegre Drinker Biddle & Reath LLP
Defendant: Gardens Alive, Inc., Early Morning LLC d/b/a Weeks Roses
Cause: Federal Trademark Counterfeiting, Federal Trademark Infringement, Federal Unfair Competion, Federal False Designation of Origin, Common Law Unfair Competition, Conversion, Theft
Court: Southern District of Indiana
Judge: Sarah Evans Barker
Referred To: Debra McVicker Lynch

Complaint:

GETGO vs GET 2 GO for Convenience Stores…Are You Confused?

15 Thursday Jul 2021

Posted by in Indiana, Intellectual Property, Litigation, Northern District of Indiana, Trademark

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Giant Eagle is the owner of GETGO® convenience stores, with 269 locations, including four (4) stores in Fort Wayne, Indiana that were opened in 2018. Giant Eagle owns several U.S. trademark registrations for GETGO, claiming a date of first use of March 2003 for “Convenience store services, including fuel.”

The Defendants are the owners of three (3) retail convenience stores named GET 2 GO in Fort Wayne, Indiana. The Defendants own two U.S. trademark registrations for the GET 2 GO trademark, claiming a date of first use of June 2011. The Plaintiff has contemporaneously filed a Petition for Cancellation (see below) against the Defendants’ registrations.

The Plaintiffs sent communications to Defendants via counsel in February 2020 and April 2021. Per the Complaint (below), “Defendants, through counsel, indicated that they were 􏰇􏰑􏰌􏰙􏰞􏰐􏰔”simply not interested” in a business resolution or in discontinuing the use of the Infringing Marks.”

The Complaint doesn’t mention any instances of actual confusion.

Given the decade-long use of their own trademarks, coexisting peacefully with apparently no instances of consumer confusion, I’m not surprised that the Defendants have opted to stand their ground and not change their name. I’ll be interested to see the affirmative defenses and possibly counterclaims in the Defendants’ Answer. Stay tuned for updates on both the lawsuit and the cancellation proceeding.

Phoenix Intangibles Holding Company et al vs. Virk Brothers, LLC et al

Case Number: 1:21-cv-00263-HAB-SLC
File Date: Friday, July 9, 2021
Plaintiff: Phoenix Intangibles Holding Company, Giant Eagle, Inc.
Plaintiff Counsel: Anthony M. Eleftheri of Drewry Simmons Vornehm, LLC
Defendant: Virk Brothers, LLC, Charanjit Singh
Cause: Federal Trademark Infringement, Federal Unfair Competition, False Designation of Origin, Common Law Unfair Competition, Common Law Trademark Infringement
Court: Northern District of Indiana
Judge: Holly A. Brady
Referred To: Susan L. Collins

Complaint:

Petition for Cancellation: