Category Archives: Intellectual Property

Photos, Bongs and Blueprints dominate the March Indiana IP Docket

01 Monday Apr 2019

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

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The Indiana intellectual property docket continues to be dominated by photography and counterfeit bong cases. In March 2019, RooR International continued their crusade against Indiana smoke and vape shops. Many of the smoke shop defendants have seen the advantage of “strength in numbers” and retained the same defense attorney to assist with a common defense.

Sadly, another 10 defendants, including Eli Lilly, the National Association of Realtors, and the Cystic Fibrosis Foundation (!), were caught up in Richard Bell’s skyline photo litigation web. I’ll be curious to see whether these organization’s high-priced lawyers can figure out a different resolution than previous Bell defendants.

Design Basics, a regular copyright plaintiff, returns to protect a set of its architectural drawings.

Let’s all keep our fingers crossed for an interesting trademark case to be filed in April.  I’ll be the first to let you know.

Photography

  • Richard Bell  – 10
  • Oppenheimer
  • Iwasaki

Counterfeit Bongs

  • RooR International BV – 7

Architectural Drawings

  • Design Basics LLC

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Copyright lawsuit filed over Chicago skyscraper photograph

20 Wednesday Mar 2019

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

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Here’s yet another photography copyright lawsuit, this one involving the unauthorized reproduction and public display of a photograph of skyscrapers in Chicago.

The defendant, a corporation based in Fort Wayne, Indiana, allegedly used a  registered skyscraper photograph of plaintiff, an Oregon-based photographer, on their website without authorization.

Other than the RooR counterfeit bong cases, photography cases are the only ones being filed lately. Although I don’t expect anything unusual in this case, and predict a quick settlement, I’ll continue to monitor the lawsuit to see how it might differ from the multitudinous Bell cases.

Iwasaki v. Apollo Design Technology, Inc.

Court Case Number: 1:19-cv-00094
File Date: Monday, March 18, 2019
Plaintiff: Rich Iwasaki
Plaintiff Counsel: Richard Liebowitz of Liebowitz Law Firm, PLLC
Defendant: Apollo Design Technology, Inc.
Cause: Copyright Infringement, Integrity of Copyright Management Information
Court: Northern District of Indiana
Judge: TBD
Referred To: TBD

Complaint:

Bell and Bongs continue to dominate Indiana Intellectual Property Filings

18 Monday Mar 2019

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

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Skyline photographs and unauthorized bongs continue to be the primary driver of intellectual property litigation in Indiana in early March. Richard Bell’s internet-scouring spiders have apparently found another batch of entities that used his Indianapolis skyline photograph, including a big name, Eli Lilly and Company.

RooR has continued to crack down on Indiana smoke and vape shops for the alleged sale of counterfeit products. Surely news of these lawsuits has made the rounds of smoke shops owners by now, who will definitely want to be closely checking their inventory of RooR water pipes for authenticity, rather than wind up as next week’s defendant.

Regular filer Design Basics has also returned to protect a set of its architectural drawings.

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Proper Use of the Federal Trademark Registration Symbol ®

12 Tuesday Mar 2019

Posted by in Branding, Intellectual Property, Trademark

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As a trademark attorney, I almost always notice whether a company is using the federal trademark registration symbol, ®. From time to time, I’ll check out their registration on the United States Patent and Trademark Office (USPTO) database, only to find that the company doesn’t actually have a federal registration, and sometimes not even an application.

It’s important to know that the federal registration symbol may not be used with trademarks until they are actually registered with the USPTO. Using the ® without a registration can get you into trouble. Knowing and willful misuse of the federal registration symbol can be considered an attempt to deceive or mislead consumers and subject you to potential fraud claims.

However, the USPTO acknowledges that misunderstandings about use of the federal registration symbols are more frequent than occurrences of actual fraudulent intent.  Common reasons for improper use of the federal registration symbol that do not indicate fraud are:

  • Mistake as to the requirements for giving notice (confusion often occurs between notice of trademark registration, which may not be given until after registration, and notice of claim of copyright, which must be given before publication by placing the notice © on material when it is first published);
  • Inadvertence in not giving instructions (or adequate instructions) to the printer, or misunderstanding or voluntary action by the printer;
  • The mistaken belief that registration in a state or foreign country gives a right to use the registration symbol
  • Registration of a portion of the trademark
  • Registration of the trademark for other goods
  • A recently expired or cancelled registration of the subject trademark
  • Another trademark to which the symbol relates on the same label

See TMEP §906.02.

Contact a trademark attorney if you have questions about the proper use of the federal trademark registration symbol. 

 

How to Form an LLC in Indiana

11 Monday Mar 2019

Posted by in Business Law, Indiana, Intellectual Property

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What is an LLC?

A Limited Liability Company (“LLC”) is a business entity which combines the advantage of a corporation’s limited liability and the flexibility and single taxation of a general partnership.

“Limited liability” means that an LLC member is protected from personal liability for business debts and claims. If the business owes money or faces a lawsuit, the assets of the business will be at risk but not the personal assets of the LLC member.

Forming an LLC in Indiana can be done relatively quickly and with limited expense.  This post will detail the main steps you’ll need to take to form a limited liability company (LLC) in Indiana:

  • Select an available business name that complies with Indiana’s LLC rules (and federal and Indiana trademark law).
  • Create an LLC operating agreement, which sets out the rights and obligations of the LLC members.
  • File formal paperwork, usually called Articles of Organization, and pay the filing fee

Choose a Name for Your LLC

The name that you choose for an Indiana LLC must be distinguishable from any other registered or authorized Indiana business entity or any reserved names on record.

The name of the LLC must also contain one of the following words as a company identifier: “Limited Liability Company”, “LLC” or “L.L.C.” (You will subsequently file a simple “doing business as” form without the company identifier. For example, the formal name will be , but the d/b/a would be …)

Besides following Indiana’s LLC naming rules, you’ll want to conduct a trademark clearance search to make sure that your name won’t violate another entity’s trademark.  (At this stage, you should also register relevant domain names and consider a federal trademark application for your LLC’s name. For general information about federal trademarks, click here.)

File Articles of Organization

After settling on a name, you must prepare and file “Articles of Organization.” You may also see this document referred to as a “certificate of formation” or “certificate of organization.”

Filing Fees

One disadvantage of forming an LLC instead of a partnership or a sole proprietorship is that you’ll have to pay a filing fee when you submit your Articles of Organization. The current filing fee in Indiana is $85. If you would like to compare this to other states filing fees, click here.

Required Information

Articles of Organization are short, simple documents. You can find a template here. You must provide the LLC’s name, address, registered agent, dissolution and management information.

Members are not required to be listed in the Articles of Organization. However, be aware that Indiana has the following membership requirements for an LLC:

Indiana does not require a specific purpose to be listed in the Articles of Organization.

Registered Agent

You will be required to list the name and address of a person, usually your business attorney or one of the LLC members, who will act as your LLC’s “registered agent,” or “agent for service of process.” The agent is the person designated to receive legal papers in any future lawsuit involving your LLC.

You can now file all documents online at the Indiana Secretary of State’s website.

Create an LLC Operating Agreement

Even though operating agreements are not required to be filed with the Indiana Secretary of State and are not required by Indiana law, it is essential that you create one. In an LLC operating agreement, you set out rules for the ownership and operation of the business (much like a partnership agreement or corporate bylaws).

Optimally, the operating agreement will include:

  • each member’s percentage interest in the business
  • members’ rights and responsibilities
  • members’ voting power
  • how profits and losses will be allocated
  • how the LLC will be managed
  • rules for holding meetings and taking votes, and
  • “buy-sell” provisions, which determine what happens if a member wants to sell his or her interest, dies, or becomes disabled.

Once you’ve completed the above steps, take a moment to congratulate yourself. You have a new Indiana LLC. However, note that Indiana requires most businesses to obtain a business license and pay a fee if operating in the state, so check to make sure your business is complying with the license requirements for your particular industry.

Annual Filing Requirements:

Looking forward, be aware that a Business Entity Report must be received by the state of Indiana by the anniversary month, and it must be filed every two years. The year of filing depends on whether the LLC was filed during an even or odd numbered year. The fee for this filing is $30 every 2 years.

Taxes:

For more information on taxes, visit: State of Indiana Tax Information Website.

Before filing for an LLC, you may want to discuss with your business attorney whether an LLC is the appropriate entity type for your company. An attorney can also assist in drafting your LLC’s Operating Agreement.