Category Archives: Intellectual Property

WISH-TV sued over New York Garbage Truck Photograph

23 Friday Feb 2024

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

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Photographers getting paid what they’re owed by news organizations has always been an issue. Just ask Peter Parker.

WISH-TV, an Indianapolis-based local television station, is accused of copying a photograph of a New York garbage truck and reposting it to WISH-TV’s website/social media. The original photograph had been included in a NY Post article via a paid license. In addition to editing the photograph to overlay pictures of three sanitation workers, WISH-TV also cropped out the photographer’s attribution (see Complaint below).

Unable to negotiate a license fee, the photographer is now suing WISH-TV for copyright infringement and removal of the attribution.

If you want a photograph of a random New York garbage truck, either: a) take the photo yourself, b) pay someone to take the photo for you, c) pay someone who has already taken such a photo to use their photo, or d) use AI to create the photo because who will really know, it’s just a random garbage truck. Do not: e) find a photo on Google Images, crop out the photographer’s logo, and post it on your website.

The “news reporting” fair use defense likely won’t work for WISH-TV, because WISH-TV’s article was not reporting about this specific garbage truck but rather just took a random garbage truck photograph and used it in a story about sanitation worker overtime hours. If WISH-TV had been reporting about this particular garbage truck, or even the photographer, they might be able to claim a fair use defense, although they would still need to explain why the photographer’s attribution was cropped.

Stay tuned for updates.

Sadowski v. Circle City Broadcasting I, LLC d/b/a WISH-TV

Court Case Number: 1:24-cv-00324-JRS-TAB
File Date: February 21, 2024
Plaintiff: Christopher Sadowski
Plaintiff Counsel: Michael A. Swift of Maginot, Moore & Beck LLP
Defendant: Circle City Broadcasting I, LLC d/b/a WISH-TV
Cause: Copyright Infringement, Removal or Alteration of Copyright Management Information
Court: Southern District of Indiana
Judge: James R. Sweeney II
Referred To: Tim A. Baker

Complaint:

February 2024 Indiana Intellectual Property Litigation Update

15 Thursday Feb 2024

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

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The previous month brought closure for several Indiana intellectual property lawsuits, with a higher than usual number of dismissals. Two new trademark lawsuits were filed since last mont’s update, involving the unauthorized sale on Amazon of animal health supplements and a breach of an ice cream shop franchise agreement. Read on below for the latest updates on all pending Indiana copyright and trademark lawsuits:

Noble Roman’s, Inc. v. AMI Stores Management, Inc. et al. (SD, filed 6/6/2021) – A Stipulation of Dismissal with prejudice was filed by the Plaintiff on February 8, 2024.

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – The Defendant filed a Corporate Disclosure Statement on January 29, 2024.

Gabet et al. v. Amazon.com. Inc. et al. (ND, filed 1/20/2022) – A telephonic discovery conference was held on January 29, 2024, followed by several discovery-related motions. Subsequently, the Court reset a telephonic discovery conference scheduled for March 1, 2024 to an in-person discovery conference on March 5, 2024.

The Evolutionary Level Above Human, Inc. v. Havel et al (ND, filed 5/18/2022) – One of the Plaintiff’s attorneys filed a motion to withdraw on January 30, 2024. No substantive update this month.

Oakley, Inc. v. Batter’s Box Training, LLC et al (SD, filed 8/11/2022) –  The Plaintiff filed a Stipulation of Dismissal against all Defendants on January 18, 2024.

Honest Abe Roofing franchise, Inc. v. DCH & Associates, LLC et al. (SD, filed 9/7/2022) –  On February 8, 2024, the Plaintiff filed a Motion for Default Judgment. “Head-in-the-sand” time is running out quickly for the Defendants in this lawsuit.

The Center for Gestalt Development, Inc. v. Bowman (SD (11/09/2022) – The parties held a Discovery Conference on January 25, 2024 to determine the appropriate location for the deposition of the Plaintiff.

1.4G Holdings, LLC v. North Central Industries, Inc. et al. (SD 1/05/2023) –  A Status Conference was held on February 9, 2024. The parties apparently have one remaining settlement term to negotiate.

Albert’s Diamond Jewelers, Inc. v. AaLand Diamond Jewelers LLC (ND 2/01/2023) – The lawsuit was dismissed via a Joint Stipulation to Dismiss on January 26, 2024.

Sak Group, Inc. v. Blue Hill Hospitality, Inc. (ND 4/25/2023) – On February 1, 2024, Magistrate Judge John E. Martin was added in place of Magistrate Judge Joshua P. Kolar. Candace C. Dickson has withdrawn from representation of the Plaintiff.

National College Resources Foundation v. The Strong Friends LLC et al. (ND 5/4/2023) –  No update this month.

Sadowski v. Restoration 1 by J&D, LLC (SD 7/12/2023) –  No update this month.

Nickel and Dimes Incorporated v. Noah’s Arcade LLC et al (ND 7/25/2023) – Lyle R. Hardman and Eric M. Wilkins have entered an appearance on behalf of the Defendants and their original counsel has withdrawn.

Hoffman v. Lauth Investigations International Inc. (SD 9/18/2023) – The Plaintiff filed its Preliminary Witness and Exhibit List on January 26, 2024.

Banjo Corporation v. Green Leaf, Inc. (SD 9/29/2023) – The parties filed the Preliminary Exhibit and Witness Lists on February 12, 2024.

Perma-Green Supreme, Inc. v. Dr. Permagreen, LLC et al. (ND 10/06/2023) – No update this month.

Secada Medical LLC d/b/a Ventris Medical, LLC v. Nexxt Spine, LLC (SD 11/01/2023) – The parties have settled and must file dismissal papers by March 24, 2024.

Radic v. AllCity Adjusting LLC et al (ND 11/03/2023) –  The Plaintiff has been granted until March 3, 2024, to serve the Defendants.

Tempur Sealy International, Inc. et al. v. Luxury Mattress & Furniture, LLC (ND 11/09/2023) –  The Plaintiff filed an Amended Motion for Default Judgment on February 2, 2024.

Stross v. Homestead Properties, Inc. (SD 11/09/2023) – Here’s something we don’t often see…a Defendant has decided to push back substantively on a photography copyright lawsuit rather than immediately settle. On February 4, 2024, the Defendant filed two Motions to Dismiss, a jurisdictional challenge under 12(b)(1) and a failure to state a claim under 12(b)(6). Just like that, this lawsuit went from dull to very interesting. The Defendant is represented by Charles E. McFarland.

Matsumoto v. Pho Real LLC (SD 11/15/2023) – The lawsuit was dismissed on January 25, 2024 pursuant to a Joint Stipulation of Dismissal.

Watson Music Group, LLC v. Borshoff, Inc. (SD 11/22/2023) – The lawsuit was dismissed on February 13, 2024 via a Stipulation of Dismissal filed by the Plaintiff.

Guangzhou Shima Decoration Materials Co., Ltd v. Shenzhen Ruimingxiang Technology Co., Ltd. (SD 1/08/2024) – An Amended complaint was filed on January 12, 2024.

Nutramax Laboratories, Inc. et al v. CNB Retailers, LLC et al. (ND 2/08/2024) – No update yet.

Baskin-Robbins Franchising LLC et al v. Blu Moo Ice Cream Inc. et al. (SD 2/14/2024) – No update yet.

January 2024 Updates

December 2023 Updates – December 2022 Updates –  December 2021 Updates

Baskin-Robbins sues Ex-Franchisee over Broad Ripple, Greenwood Ice Cream Shops

15 Thursday Feb 2024

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

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The owner of Baskin Robbins ice cream shops in Broad Ripple and Greenwood, Indiana, has been accused of violating the terms of its Baskin-Robbins franchise agreement. The prior franchise relationship was terminated in June 2023 due to nonpayment of about $50,000, but the ice cream shops continued to operate as Baskin Robbins while selling product from a competing ice cream brand.

Subsequent cease-and-desist communications and collection attempts have been unsuccessful, and Baskin Robbins now seeks the intervention of the federal court for the Southern District of Indiana.

Stay tuned for updates.

Baskin-Robbins Franchising LLC et al v. Blu Moo Ice Cream Inc. et al.

Court Case Number: 1:24-cv-00293-JRS-CSW
File Date: February 14, 2024
Plaintiff: Baskin-Robbins Franchising LLC, BR IP Holder LLC
Plaintiff Counsel: Justin O. Sorrell of Riley Bennett Egloff LLP
Defendant: Blue Moo Ice Cream Inc., Robert Holocher
Cause: Breach of Contract, Breach of Personal Guarantees, Federal Trademark Infringement, Federal Unfair Competition
Court: Southern District of Indiana
Judge: James R. Sweeney II
Referred To: Crystal S. Wildeman

Complaint:

Fort Wayne Company sued for sale of Unauthorized Animal Health Supplements on Amazon

09 Friday Feb 2024

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

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Nutramax Laboratories (“Nutramax”), the plaintiff in Indiana’s latest trademark lawsuit, produces health supplements for companion animals. Nutramax distributes its products through multiple trade channels, including through resellers that only have an online sales outlet. Nutramax’s resellers are required to sign an Authorized Reseller Agreement which includes requirements around product quality and customer service.

The defendants, a Fort Wayne company, are allegedly unauthorized resellers that are selling Nutramax products on the Amazon Marketplace. The defendants have not signed the Authorized Reseller Agreement.

Nutramax’s counsel sent cease-and-desist communications in October 2023 and January 2024, but apparently have not received a response and the unauthorized Amazon sales have continued. As such, Nutramax now seeks the assistance of the Northern District of Indiana to enforce its trademark rights.

Stay tuned for updates.

Nutramax Laboratories, Inc. et al. v. CNB Retailers, LLC et al.

Court Case Number: 3:24-cv-00129-DRL-MGG
File Date: February 8, 2024
Plaintiff: Nutramax Laboratories, Inc., Nutramax Laboratories Veterinary Sciences Inc.
Plaintiff Counsel: Mark D. Boveri of Krieg Default LLP
Defendant: CNB Retailers, LLC d/b/a Amazon Seller Account “UniversalExports”; Brett Hart; Christina Miller
Cause: Federal Trademark Infringement, Federal False Designation of Origin, Federal False Description, Indiana Common Law Tortious Interference with a Contract
Court: Northern District of Indiana
Judge: Damon R. Leichty
Referred To: Michael G. Gotsch, Sr.

Complaint:

January 2024 Indiana Intellectual Property Litigation Update

15 Monday Jan 2024

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

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Happy New Year! Several Indiana IP defense attorneys were hard at work over the holidays, with four Answers filed in the last month. Many pending cases had no update, but we can expect the courts to now be back in full swing going into the heart of winter. Read on below for updates on all pending trademark and copyright litigation in Indiana:

Sears Authorized Hometown Stores, LLC v. Lynn Retail, Inc. et al. (SD, filed 6/4/2021) –  This lawsuit was dismissed with prejudice on December 28, 2023.

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

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – On January 12, 2024, the Plaintiff filed a stipulation regarding the separation of witnesses at trial.

Gabet et al. v. Amazon.com. Inc. et al. (ND, filed 1/20/2022) – These attorneys were definitely working over the holidays, with several motions filed in the last month, including a “Motion to Compel Gabet’s Production of Documents and Testimony that Provide Factual Bases for her Attorney’s Testimony” filed on January 3, 2024. The Defendant filed its Response on January 10, 2024.

The Evolutionary Level Above Human, Inc. v. Havel et al (ND, filed 5/18/2022) – A Reply to a Motion for Preliminary Injunction was filed on December 18, 2023.

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

Honest Abe Roofing franchise, Inc. v. DCH & Associates, LLC et al. (SD, filed 9/7/2022) –  No update this month.

The Center for Gestalt Development, Inc. v. Bowman (SD (11/09/2022) – A Status Conference was held on December 18, 2023. A Settlement Conference is scheduled on May 3, 2024.

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

Albert’s Diamond Jewelers, Inc. v. AaLand Diamond Jewelers LLC (ND 2/01/2023) – No update this month. Dismissal papers are still due by January 25, 2024.

HealthSmart Foods, Inc. v. Sweet Nothings, Inc. et al. (SD 4/13/2023) – The lawsuit was dismissed on December 15, 2023.

Sak Group, Inc. v. Blue Hill Hospitality, Inc. (ND 4/25/2023) – No update this month.

National College Resources Foundation v. The Strong Friends LLC et al. (ND 5/4/2023) –  No update this month.

Sadowski v. Restoration 1 by J&D, LLC (SD 7/12/2023) –  The Defendant filed its Answer on December 27, 2023, which includes Third-Party Complaint against its website developer for breach of contract, negligence, and common law indemnity.

Nickel and Dimes Incorporated v. Noah’s Arcade LLC et al (ND 7/25/2023) – The parties are in the process of selecting a mediator.

Hoffman v. Lauth Investigations International Inc. (SD 9/18/2023) – The Defendant filed its Answer and Affirmative Defenses on January 3, 2023. The Defendant is represented by Theodore J. Minch of Sovich Minch, LLP.

Banjo Corporation v. Green Leaf, Inc. (SD 9/29/2023) – A Final Pretrial Conference is scheduled on April 22, 2025. Trial is scheduled on May 5, 2025.

Perma-Green Supreme, Inc. v. Dr. Permagreen, LLC et al. (ND 10/06/2023) – No update this month.

Secada Medical LLC d/b/a Ventris Medical, LLC v. Nexxt Spine, LLC (SD 11/01/2023) – The Defendant filed its Answer, Affirmative Defenses, and Counterclaim on December 22, 2023. The counterclaim seeks cancellation of the Plaintiff’s trademark registration based on mere descriptiveness. On January 8, 2024, the Plaintiff filed an Extension of Time to respond to the counterclaim.

Radic v. AllCity Adjusting LLC et al (ND 11/03/2023) – No update yet.

Tempur Sealy International, Inc. et al. v. Luxury Mattress & Furniture, LLC (ND 11/09/2023) –  A Clerks Entry of Default was entered on January 3, 2024, following a Motion for Clerks Entry of Default filed by the Plaintiff on January 2, 2024.

Stross v. Homestead Properties, Inc. (SD 11/09/2023) – Via a motion filed by the Plaintiff, the Defendant’s deadline to respond has been extended to February 1, 2024.

Matsumoto v. Pho Real LLC (SD 11/15/2023) – The Defendant’s Answer and Affirmative Defenses were filed on January 12, 2024. The Defendant is represented by Robert L. Nicholson of Carson LLP.

Watson Music Group, LLC v. Borshoff, Inc. (SD 11/22/2023) – No update this month.

Guangzhou Shima Decoration Materials Co., Ltd v. Shenzhen Ruimingxiang Technology Co., Ltd. (SD 1/08/2024) – No update yet.

December 2023 Updates – December 2022 Updates –  December 2021 Updates