Category Archives: Copyright

September 2022 Indiana Intellectual Property Litigation Update

15 Thursday Sep 2022

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

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Henry Wadsforth Longfellow was invoked by the Court in an Opinion and Order for the Amazon/Ligonier perfumery lawsuit. The Court followed an evocative Longfellow passage about “Ships that pass in the night” with its own damning assessment of the state of the lawsuit:

“There are cases in which all that is shared in the parties’ briefs is the caption. The most mundane facts are passionately disputed. Unfavorable facts are misrepresentations. Unfavorable case law is not just distinguishable, it is irrelevant and misleading. Differing interpretations of evidence are absurd. Every action of opposing counsel is performed with malice.

These cases tax the Court needlessly. Rather than address the salient legal issues, the Court must check and re-check threshold factual matters and blackletter law. Motions cannot be decided before evidentiary objections, and objections to those objections, are resolved. The Court functions less as an adjudicative body and more as a schoolmarm.

This, unfortunately, looks to be one of those cases.”

See the full Opinion and Order below for the rest of the Court’s analysis.

The Omi in a Hellcat lawsuit may also require a schoolmarm soon to intervene in the parties’ dispute over jurisdictional discovery, which has seen charges of obfuscation and improper objections.

Which lawsuits are you following most closely?

Sears Authorized Hometown Stores, LLC v. Lynn Retail, Inc. et al. (SD, filed 6/4/2021) – The Defendants filed a Reply in Support of their Motion for Summary Judgment on August 25, 2022.

Noble Roman’s, Inc. v. AMI Stores Management, Inc. et al. (SD, filed 6/6/2021) – Discovery deadlines have been extended by motion to October 4, 2022.

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

RE/MAX, LLC et al. v. Dulin et al. (SD, filed 8/24/2021) – The lawsuit was dismissed with prejudice on September 1, 2022.

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – The parties’ discovery deadlines were extended by motion on September 2, 2022.

Thomas v. ooShirts, Inc. et al. (SD, filed 9/24/2021) – No update this month.

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) – No update this month. 

Gabet et al. v. Amazon.com. Inc. et al. (ND, filed 1/20/2022) – Amazon’s Motion to Transfer Venue was granted on September 6, 2022. The case will be transferred from the Northern District of Indiana to the Southern District of Indiana, so we’ll be able to continue to follow it on this blog.

Reid v. Stephenson (SD, filed 1/27/2022) – The Complaint was served on Lance Stephenson on August 30, 2022. No further update.

Microsoft Corporation v. Solution Hat, LLC d/b/a Think Global et al. (SD, filed 2/25/2022) – The court granted permanent injunction against the Defendants and the lawsuit was dismissed.

NuStar Enterprises LLC v. Reloaded Merch LLC et al. (ND, filed 4/1/2022) – The parties are in the midst of a jurisdictional discovery dispute, and are now awaiting the Court’s ruling on a fully-briefed Motion to Compel Jurisdictional Discovery. The latest filing (below) finds the Plaintiff lamenting the Defendants’ “continued obfuscation” and discovery responses “rife with additional improper objections.” Stay tuned for the Court’s rulings.

Mapes v. Top Tier Marketers LLC d/b/a Artfily et al. (SD, filed 4/4/2022) – Some internal court administration took place over the last month, but no substantive updates.

The Evolutionary Level Above Human, Inc. v. Havel et al (ND, filed 5/18/2022) – On August 17, the Plaintiff filed its Answer to the counterclaims of Defendants Havel and Weaver.

Defendant Bartel filed an Answer on September 9, 2022.

Lafayette Venetian Blind, Inc. v. Coulisse Distribution LLC et al. (ND, filed 6/29/2022) – No update yet.

PUMA SE et al. v. Brooks Sports, Inc. (SD, filed 7/8/2022) – Even more attorneys have made pro hac vice appearances this month, but there are no substantive updates.

Broadcast Music, Inc. et al v. Thirty-Six Saloon, LLC d/b/a Thirty Six Saloon et al. (SD, filed 7/27/2022) – BMI filed a Motion for Clerk’s Entry of Default on September 6, 2022.

Schwartz v. Kilroy’s North America, LLC et al (SD, filed 8/5/2022) – On August 25, 2022, Defendant Kilroy’s North America, LLC was dismissed from the lawsuit. Amanda C. Couture has appeared as counsel for the remaining defendants, Kilroy’s on Kirkwood and Kilroy’s Sports.

Oakley, Inc. v. Batter’s Box Training, LLC et al (SD, filed 8/11/2022) – Oakley filed Affidavits of Service on September 12, 2022, so we can anticipate the Defendant’s Answer in the next month.

Honest Ave Roofing franchise, Inc. v. DCH & Associates, LLC et al. (SD, filed 9/7/2022) – Certificates of Service were filed on September 13, 2022. Stay tuned for 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

Mid-August 2022 Indiana Intellectual Property Litigation Update

15 Monday Aug 2022

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

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Summer is winding down and schools are starting to get back in session. The federal courts in Indiana have had a busy close to the summer as they continue to move existing copyright and trademark lawsuits toward resolution. A few interesting new cases were filed in the last month, including claims of counterfeiting, non-payment of wages, and copyright infringement.

What lawsuits are you following most closely?

Sears Authorized Hometown Stores, LLC v. Lynn Retail, Inc. et al. (SD, filed 6/4/2021) – The Plaintiff filed its Response to the Motion for Summary Judgment on August 12, 2022.

Noble Roman’s, Inc. v. AMI Stores Management, Inc. et al. (SD, filed 6/6/2021) – Noble Roman’s filed a motion to extend deadlines on August 12, 2022.

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

RE/MAX, LLC et al. v. Dulin et al. (SD, filed 8/24/2021) – The parties filed a Motion to Vacate Settlement Conference and Notice of Settlement on August 1, 2022. The parties have been granted until August 30, 2022 to file a Stipulation of Dismissal.

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – On July 28, 2022, the Defendant filed an Opposition Proceeding with the Trademark Trial and Appeal Board against the DELLA TERRA trademark application.

Thomas v. ooShirts, Inc. et al. (SD, filed 9/24/2021) – A Protective Order was entered on August 11, 2022, presumably to protect the terms of settlement. The parties are awaiting the Court’s order on a fully-plead (as of August 8) Motion to Enforce Settlement Agreement.

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) – No update this month.

Gabet et al. v. Amazon.com. Inc. et al. (ND, filed 1/20/2022) – On July 19, 2022, the Plaintiffs filed a Motion to Strike Reply to Response to Motion in support of the Motion to Transfer Venue. Amazon filed its Response on July 29, 2022 and the Plaintiffs’ Reply (below) was filed on August 12, 2022. A telephonic conference is scheduled for August 18, 2022.

Reid v. Stephenson (SD, filed 1/27/2022) – No update this month.

Microsoft Corporation v. Solution Hat, LLC d/b/a Think Global et al. (SD, filed 2/25/2022) – The Court has ordered that dismissal documents be filed by September 16, 2022.

The American Automobile Association, Inc. v. All American Auto Hail Dent Repair LLC d/b/a AAA Hail Repair et al. (SD, filed 3/23/2022) – The lawsuit was dismissed on August 9, 2022 following entry of a Consent Judgment.

NuStar Enterprises LLC v. Reloaded Merch LLC et al. (ND, filed 4/1/2022) – On August 12, 2022, the Plaintiff filed a Motion to Compel Jurisdictional Discovery. The parties are still working to resolve the jurisdiction issue.

Mapes v. Top Tier Marketers LLC d/b/a Artfily et al. (SD, filed 4/4/2022) – On August 8, 2022, the Plaintiff filed a Motion for Clerk’s Entry of Default.

The Evolutionary Level Above Human, Inc. v. Havel et al (ND, filed 5/18/2022) – The Defendants filed an 82-page Answer (plus 158 pages of Exhibits) on July 26, 2022.

Lafayette Venetian Blind, Inc. v. Coulisse Distribution LLC et al. (ND, filed 6/29/2022) – No update yet.

PUMA SE et al. v. Brooks Sports, Inc. (SD, filed 7/8/2022) – Many attorneys have filed appearances, but no other updates yet.

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 yet.

Schwartz v. Kilroy’s North America, LLC et al (SD, filed 8/5/2022) – No update yet.

Oakley, Inc. v. Batter’s Box Training, LLC et al (SD, filed 8/11/2022) – No update yet.

July 2022 Updates

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

February 2022 Updates– January 2022 Updates – December 2021 Updates

AV Intern sues Kilroy’s Sports for Non-Payment of Wages, Copyright Infringement

09 Tuesday Aug 2022

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

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A popular college bar in Bloomington, Indiana is accused of non-payment of $12,000 to an intern who had been creating content for their social media accounts. The Complaint (below) details several months of promised, delayed, and ultimately unrealized paychecks.

The Complaint includes claims for declaratory judgment of copyright ownership and copyright infringement, but I assume that the intern is less interested in ownership of the bar’s social media content and more interested in getting paid for months of labor. The specific works alleged to have been infringed are not identified in the Complaint and there is no mention of registration of any works, a prerequisite for a copyright infringement claim, so the copyright claims could be vulnerable to challenge. As jurisdiction for the lawsuit is based on the copyright and declaratory judgment of copyright ownership claims, we might see an early battle over jurisdiction.

Ideally, the intern will just get paid what he is owed before lawyers for both sides get deep into researching and drafting motions. Stay tuned for updates.

Schwartz v. Kilroy’s North America, LLC et al

Case Number: 1:22-cv-01563-SEB-DML
File Date: August 5, 2022
Plaintiff: Elijah Schwartz
Plaintiff Counsel: Kimberly D. Jeselskis, B.J. Brinkerhoff, Hannah Kaufman Joseph of Jeselskis Kaufman and Joseph, LLC
Defendant: Kilroy’s North America, LLC, Kilroy’s Sports, LLC, Kilroy’s on Kirkwood, LLC
Cause: Violation of the Wage Payment Act, Breach of Contract, Promissory Estoppel, Unjust Enrichment, Fraud, Declaratory Judgment of Copyright Ownership, Copyright Infringement
Court: Southern District of Indiana
Judge: Sarah Evans Barker
Referred To: Debra McVicker Lynch

Complaint:

BMI sues Rockville Bar for Copyright Infringement

02 Tuesday Aug 2022

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

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BMI has found another target in Indiana. This time it’s the Thirty Six Saloon, a relaxed roadhouse alongside US-36 in Rockville, Indiana, home of the Parke County Covered Bridge Festival.

BMI allegedly reached out to the Defendants over thirty-five (35) times since April 2019 in an attempt to sell them the required public performance license to play music in the roadhouse. With no apparent satisfactory response, BMI now brings a lawsuit with 4 claims of copyright infringement based on the following playlist being performed at Thirty Six Saloon without a license on November 27, 2019 (the night before Thanksgiving):

Stay tuned for updates.

Broadcast Music, Inc. et al. v. Thirty-Six Saloon, LLC d/b/a Thirty Six Saloon Et al.

Case Number: 2:22-cv-00305-JRS-MJD
File Date: July 27, 2022
Plaintiff: Broadcast Music, Inc.; Cotillion Music, Inc.; Terry Stafford Music Co.; House of Cash, Inc.; Sony/ATV Songs LLC d/b/a Sony/ATV Tree Publishing; Round Hill Music LP d/b/a Round Hill Works; Tokeco Tunes; EMI Blackwood Music Inc.; Warner-Tamerlane Publishing Corp.; Lucky Thumb Music; Noah’s Little Boat Music; Sea Gayle Music LLC d/b/a New Songs of Sea Gayle; Eldorotto Music Publishing; Big Gassed Hitties; Spirit Music Group Inc. d/b/a Spirit of Nashville One
Plaintiff Counsel: April A. Wimberg of Dentons Bingham Greenebaum
Defendant: Thirty-Six Saloon, LLC d/b/a Thirty Six Saloon; Mark Vanderheyden
Cause: Copyright Infringement
Court: Southern District of Indiana
Judge: James R. Sweeney II
Referred To: Mark J. Dinsmore

Complaint:

Mid-July 2022 Indiana Intellectual Property Litigation Update

15 Friday Jul 2022

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

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Summer is here! There’s a big new trademark/design patent lawsuit between shoe giants PUMA and Brooks and few older lawsuits have finally settled. Based on ambiguities in the sales information provided by Omi in a Hellcat in his Motion to Dismiss, he now faces additional jurisdictional discovery from his plaintiff.

What lawsuits are you following?

Noble Roman’s, Inc. v. Gateway Triangle Corp. et al. (SD, filed 2/5/2021) – The lawsuit was dismissed with prejudice on July 11, 2022.

Egglife Foods, Inc. v. Crepini, LLC (ND, filed 5/28/2021) – The lawsuit was dismissed with prejudice on July 1, 2022.

Sears Authorized Hometown Stores, LLC v. Lynn Retail, Inc. et al. (SD, filed 6/4/2021) – The Defendants filed Motion for Summary Judgment on June 30, 2022.

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.  

RE/MAX, LLC et al. v. Dulin et al. (SD, filed 8/24/2021) – No update this month.

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – A Scheduling Conference is scheduled on September 2, 2022.

Thomas v. ooShirts, Inc. et al. (SD, filed 9/24/2021) – The parties did not meet the Court’s July 1, 2022 deadline to file dismissal documents and have requested until July 28, 2022 to further negotiate settlement terms.

Edutainment Live, LLC v. Video Game Palooza et al. (SD, filed 10/11/2021) – The parties held a Settlement Conference with the Court on June 30, 2022, but concluded without settlement. No other updates.

Innovative Sports Management Inc. v. La Jalisco LLP (SD, filed 12/15/2021) – A Clerk’s Entry of Default was issued on June 28, 2022.

Gabet et al. v. Amazon.com. Inc. et al. (ND, filed 1/20/2022) – On June 15, 2022, Amazon filed a Reply to the Motion to Transfer Case. No other updates.

Reid v. Stephenson (SD, filed 1/27/2022) – On July 5, the Court issued an Order to Show Cause and the Plaintiff filed its Response to Order to Show Cause on July 14, 2022.

Microsoft Corporation v. Solution Hat, LLC d/b/a Think Global et al. (SD, filed 2/25/2022) – No update this month.

The American Automobile Association, Inc. v. All American Auto Hail Dent Repair LLC d/b/a AAA Hail Repair et al. (SD, filed 3/23/2022) – A Notice of Settlement was filed on June 17, 2022 and a Motion for Entry of Consent Order of Judgment was filed on June 21, 2022.

NuStar Enterprises LLC v. Reloaded Merch LLC et al. (ND, filed 4/1/2022) – On June 16, 2022, the Plaintiff filed a Motion for Leave to Conduct Jurisdictional Discovery, which was granted on June 17, 2022. The Defendants must respond to the jurisdictional discovery requests by July 29, 2022. The Plaintiff’s Response to the Defendants’ Motion to Dismiss is due 21 days after receiving the jurisdictional discovery responses.

Mapes v. Top Tier Marketers LLC d/b/a Artfily et al. (SD, filed 4/4/2022) – No update this month.

The Evolutionary Level Above Human, Inc. v. Havel et al (ND, filed 5/18/2022) – The Defendants have been granted until July 25, 2022 to file an Answer.

Lafayette Venetian Blind, Inc. v. Coulisse Distribution LLC et al. (ND, filed 6/29/2022) – No update yet.

PUMA SE et al. v. Brooks Sports, Inc. (SD, filed 7/8/2022) – No update yet.

June 2022 Updates

May 2022 Updates – April 2022 Updates – March 2022 Updates

February 2022 Updates– January 2022 Updates – December 2021 Updates