Category Archives: Litigation

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

≈ Leave a comment

Tags

, , , ,

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

≈ Leave a comment

Tags

, , , , , , , , , , , ,

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

≈ Leave a comment

Tags

, ,

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.

Indiana Court of Appeals Rules on Jury Access to Digital Evidence

16 Thursday Dec 2010

Posted by in Indiana, Litigation

≈ Leave a comment

Tags

The Indiana Court of Appeals recently overturned a jury verdict because the trial court did not provide the jury with the ability to examine digital evidence during its deliberations in Arlton v. Schraut, Cause No. 79A02-0906-CV-541. The court’s ruling is likely to be an important decision governing how digital evidence is to be made accessible to juries in the future.

Key exhibits at the trial were three CD-ROMs containing a series of digital photos, called angiograms, which showed the back of Arlton’s left eye before and after laser surgery on the retina. During testimony from various witnesses, both parties showed the jury enlarged images of the angiograms using the CD-ROM discs, a projector and a screen. But the trial court did not provide the CD-ROMs to the jury to examine during deliberations.

The Indiana Court of Appeals held that the jury should have been allowed to view the CD-ROM discs during deliberations:

“We do not presume to set forth one all-encompassing rule regarding providing the jury access to digital evidence. The solutions could be as simple as … transforming the evidence into a medium that is accessible without a computer. Or the court or parties could provide the jury with a ‘clean’ computer, i.e., one that contains no other information and which has no ability to access the Internet…. But whatever solution is agreed upon or decided upon is better than admitting digital evidence, and then giving the jurors no means of accessing it. Digital evidence should not be relegated to muteness.”

Source: ComputerUser

Indiana Trademark Litigation Update – Traveler’s Joy v. Haycco

12 Sunday Dec 2010

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

≈ Leave a comment

Tags

, , , , ,

Traveler’s Joy Inc. v. Haycco, LLC

Straightforward trademark dispute with a hint of intentional imitation. Plaintiff has used the TRAVELER’S JOY trademark in connection with gift registry services since 2005. Defendant operates a honeymoon registry service at joyhoneymoon.com.  The Complaint doesn’t specify how long Defendant has been using the JOYHONEYMOON mark but the copyright notice on their website is 2009.

TRAVELER’S JOY v. JOY HONEYMOON…confusingly similar?

Court Case Number: 1:10-cv-01574-TWP-TAB
File Date: Tuesday, December 07, 2010
Plaintiff: Traveler’s Joy Inc.
Plaintiff Counsel: Robert L. Barlow, III of Bahret & Associates
Defendant: Haycco, LLC
Cause: Federal Trademark Infringement, Federal Unfair Competition, Federal Dilution of Famous Mark
Court: Southern District of Indiana
Judge: Judge Tanya Walton Pratt
Referred To: Magistrate Judge Tim A. Baker