Category Archives: Litigation

Indiana Copyright Litigation Update – Truth Publishing Company Inc. v. Kristopher C. Campbell

17 Monday Jan 2011

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

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Truth Publishing Company Inc. v. Kristopher C. Campbell

Plaintiff operates a daily newspaper called THE ELKHART TRUTH in Elkhart, Indiana. Defendant publishes a periodical called I.C.U. (Indiana Criminals Uncovered) MUG SHOTS. I.C.U. MUG SHOTS apparently copies news stories relating to crime and arrests directly from Plaintiff’s paper and sells the reprints for $1.50 a copy in Elkhart.

I can see why The Elkhart Truth would get tired of sending out its reporters to dig up info only to have another local paper photocopy their stories and republish. But, on some levels, isn’t Defendant doing a public service by helping spread information about criminals? Defendant certainly considered the copyright issues, as he included the following disclaimer:

“The information provided by Indiana Criminal Uncovered (ICU) Mugshots is of public record in accordance with Indiana Code 5-14-3-5. The information relates only to arrest, bookings, and preliminary charges. It does not address guilty pleas, convictions, or criminal sentences. All persons in this publication are innocent until provent guilty”

Whether the disclaimer can protect him will be determined by this lawsuit.

Defendant is running the old-school equivalent of a criminal law blog, which of course requires a little money for printing and distribution. Defendant is correct that mug shots and arrest records are public information. However, it appeared that Defendant copied the articles directly and distributed the reprints in the same geographic market, Elkhart.

While it’s likely that some people may not buy the Truth if they can get crime news from Defendant, there is apparently a wholly separate market of people who want crime stories but not the rest of the news content contained in a regular issue of the Truth. If so, Defendant may be able to continue to serve this audience, but will probably want to do more of his own fact-finding and reporting.

Court Case Number: 3:11-cv-00017-JD-CAN
File Date: Thursday, January 13, 2011
Plaintiff: Truth Publishing Company Inc.
Plaintiff Counsel: Steven M. Badger of Bose McKinney & Evans LLP
Defendant: Kristopher C. Campbell
Cause: Copyright Infringement
Court: Northern District of Indiana
Judge: Judge Jon E. DeGuilio
Referred To: Magistrate Judge Christopher A. Nuechterlein

Indiana Trademark Litigation Update – Osmundson Mfg. v. CFC Distributors

14 Friday Jan 2011

Posted by in Indiana, Intellectual Property, Litigation, Trademark

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Osmundson Mfg. Co. v. CFC Distributors Inc.

Plaintiff, an Iowa corporation, has used the trademark “TURBO” in connection with agricultural products like Coulter blades, disk blades, sweeps, plow shares and other tillage tools since 2005. The trademark was registered in 2007 for “Agricultural machine parts, namely, blades.” Defendant, an Indiana corporation, is allegedly selling similar goods under the same mark. In an effort to resolve the matter, the parties entered into a Settlement Agreement in 2009, which Defendant has allegedly now breached.

Court Case Number: 1:11-cv-00021-RL -RBC
File Date: Friday, January 14, 2011
Plaintiff: Osmundson Mfg. Co.
Plaintiff Counsel: Larry L. Barnard and Adrienne C. Romary of Carson Boxberger LLP
Defendant: CFC Distributors Inc.
Defendant Counsel: Paul B. Overhauser of Overhauser & Lindman LLC
Cause: Federal Trademark Infringement, Common Law Trademark Infringement, Unfair Competition, False Description, Breach of Settlement Agreement
Court: Northern District of Indiana
Judge: Judge Rudy Lozano
Referred To: Magistrate Judge Roger B. Cosbey

Indiana Right of Publicity Litigation Update – Patricia Day v. Wonderama Toys et al

28 Tuesday Dec 2010

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

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Patricia Day v. Wonderama Toys et al

Plaintiff Patricia Day is the lead singer of the Danish rockabilly band HorrorPops. Plaintiff claims a distinctive on-stage appearance, which combines:

(1) black hair meticulously done in 50’s pin-up fashion; (2) her retro hairstyle juxtaposed against conspicuous and heavily-applied black eye shadow and liner and deep red lipstick; (3) her form fitting ’50s-style pencil skirts that go just past the knees; (4) her full-color “sleeve tattoos” on both upper arms; and, most importantly (5) her distinctive instrumental extension of her personality: her giant tattooed upright bass.

Mattel allegedly created a Barbie doll using the likeness of Ms. Day without obtaining a license. In addition to being an unauthorized use of her likeness, the Barbie doll has caused Ms. Day particular anguish due to her feminist leanings and the confusion caused among peers and fans.

Why was this case filed in Indiana? Presumably to take advantage of Indiana’s right of publicity law, perhaps the most extensive right of publicity statute in the world, providing recognition of the right for 100 years after death, and protecting not only the usual “name, image and likeness,” but also signature, photograph, gestures, distinctive appearances, and mannerisms. Defendants Wonderama and Rainbow End are small Indiana toy stores (in Anderson and Daleville, respectively) that sold the allegedly infringing doll. Of course, the real targets of this lawsuit are Mattel (a Delaware corporation) and Hard Rock Cafe (a Florida corporation).

Did Mattel usurp Ms. Day’s likeness for the doll? You be the judge:

This should be an interesting case to follow step-by-step. Plaintiff has retained a few high-profile entertainment attorneys and we can expect Mattel and Hard Rock will do the same. I’ll keep you updated with each new filing. In the meantime, more images of Ms. Day for comparison sake:

Court Case Number: 1:10-cv-01689-RLY-MJD
File Date: Thursday, December 23, 2010
Plaintiff: Patricia Day
Plaintiff Counsel: John Tehranian and Peter Afrasiabi of ONE LLP
Defendants: Wonderama Toys, Rainbow’s End Collectibles, Mattel Corp., Hard Rock Cafe International (USA), Inc.
Cause: Infringement of Right of Publicity (Indiana Code 32-36), False Association and False Endorsement
Court: Southern District of Indiana
Judge: Judge Richard L. Young
Referred To: Magistrate Judge Mark J. Dinsmore

Indiana Trademark Litigation Update – Coach, Inc. v. Diggz Clothing

22 Wednesday Dec 2010

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

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Coach, Inc. et al v. Diggz Clothing LLC et al

Coach strikes again. Coach makes handbags, wallets, etc. Defendant is accused of selling knockoffs from a retail store in Lafayette, Indiana. As always, Coach throws the kitchen sink at the Defendant.

Related case: Coach, Inc. et al v. TJ’s Handbags
Related case: Coach, Inc. et al v. Designer Fragrance & Gifts et al
Related case: Coach Inc. et al v. Tom’s Treasure Chest

Court Case Number: 4:10-cv-00100-JVB -PRC
File Date: Wednesday, December 15, 2010
Plaintiff: Coach, Inc., Coach Services, Inc.
Plaintiff Counsel: Alejandro Valle of Gonzalez Saggio & Harlan LLP
Defendant: Diggz Clothing LLC, Lori Harth
Cause: Trademark Counterfeiting, Trademark Infringement, Trade Dress Infringement, False Designation of Origin and False Advertising, Trademark Dilution, Copyright Infringement, Common Law Trademark Infringement, Common Law Unfair Competition, Forgery under Ind. Code 35-43-5-2(b), Counterfeiting under Ind. Code 35-43-5-2(a)
Court: Northern District of Indiana
Judge: Judge Joseph S. Van Bokkelen
Referred To: Magistrate Judge Paul R. Cherry

Southern District of Indiana swears in new Magistrate

18 Saturday Dec 2010

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

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The United States District Court for the Southern District of Indiana announced that Mark J. Dinsmore took the oath to become a United States Magistrate Judge on December 17, 2010. Chief Judge Richard L. Young administered the oath in his courtroom in the Birch Bayh Federal Building and United States Courthouse in Indianapolis. A formal investiture ceremony will be held at a later date. The position Judge Dinsmore fills became available due to the elevation of Jane E. Magnus-Stinson to an Article III judgeship, effective June 9, 2010.

Magistrate judges preside over many pretrial proceedings in both civil and criminal cases in federal court, including intellectual property cases. A critical part of the job is conducting mediation and settlement proceedings in civil cases, helping parties settle their disputes by agreement. United States Magistrate Judges are appointed by the Judges of the U.S. District Court for a term of eight years, and are eligible for reappointment to successive terms.