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Indiana Intellectual Property Blog

~ Trademark and Copyright Law Updates in Indiana

Indiana Intellectual Property Blog

Category Archives: Litigation

Indiana Trademark Litigation Update – Brian Andr’e Warren v. Xlibris Corporation

23 Friday Jul 2010

Posted by Kenan Farrell in Copyright, Indiana, Litigation, Southern District of Indiana

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Tim A. Baker, William T. Lawrence

Brian Andr’e Warren v. Xlibris Corporation

A prisoner sought to proceed pro se in a copyright action but couldn’t pay his filing fees. The prisoner attempted to proceed in forma pauperis, but was denied by the Court.  Apparently, the plaintiff had brought over three bad lawsuits in the past and thus lost his entitlement to proceed in forma pauperis. This action was filed on July 6 and closed on July 16 without prejudice.

“In forma pauperis” refers to a motion filed by a low-income person in order to proceed in court without having to pay court costs, usually filing fees. It doesn’t usually cover other costs, such as those involved in discovery (depositions, witness fees, court reporters, etc.) and service of process.

Here’s the language of the Court’s Order on Motion for Leave to Proceed in forma pauperis:

The plaintiff’s complaint in this action is accompanied by his request to proceed in forma pauperis. The plaintiff has acquired three or more “strikes” through having litigation to which he was a party in a federal court dismissed for failure to state a claim upon which relief could be granted or as frivolous. Therefore, he is not entitled to proceed in forma pauperis, unless the exception under 28 U.S.C. § 1915(g), that he “is under imminent danger of serious physical injury,” applies. Those circumstances are not presented by this complaint based on copyright infringement.

The circumstances of this case trigger the rule of Sloan v. Lesza, 181 F.3d 857, 859 (7th Cir. 1999), which states:

An effort to bamboozle the court by seeking permission to proceed in forma pauperis after a federal judge has held that §1915(g) applies to a particular litigant will lead to immediate termination of the suit.

Accordingly, the plaintiff’s application to proceed in forma pauperis is denied and this action is dismissed without prejudice.

For a full copy of the Complaint or Order, please leave a comment.

Court Case Number: 1:10-cv-00885-WTL -TAB
File Date: Tuesday, July 06, 2010
Plaintiff: Brian Andr’e Warren
Plaintiff Counsel: Brian Andr’e Warren – Pro Se
Defendant: Xlibris Corporation
Cause: Trademark Infringement (Lanham Act)
Court: Southern District of Indiana
Judge: Judge William T. Lawrence
Referred To: Magistrate Judge Tim A. Baker

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Indiana Trademark Litigation Update – Brandt Industries v. Pitonyak Machinery Corporation

14 Wednesday Jul 2010

Posted by Kenan Farrell in Indiana, Litigation, Southern District of Indiana, Trademark

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Debra McVicker Lynch, Estoppel by Laches, False Designation of Origin, Tanya Walton Pratt, Unfair Competition

Brandt Industries v. Pitonyak Machinery Corporation

This is a declaratory judgment action by Plaintiff for the unregistered BRANDT mark. Both parties have used the mark for many decades in different locations. Plaintiff is a Canadian company operating in the U.S. Leave a comment for a full copy of the complaint.

Court Case Number: 1:10-cv-00857-TWP -DML
File Date: Tuesday, July 06, 2010
Plaintiff: Brandt Industries Ltd.
Plaintiff Counsel: Carrie A. Shufflebarger of Thompson Hine LLP
Defendant Counsel: Aaron M. Staser, Paul B. Hunt
Defendant: Pitonyak Machinery Corporation
Cause: Declaration of Non-Infringement, Declaration of Priority, Declaration of Estoppel by Laches, Trademark Infringement, Unfair Competition and False Designation of Origin
Court: Southern District of Indiana
Judge: Judge Tanya Walton Pratt
Referred To: Magistrate Judge Debra McVicker Lynch

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Indiana Trademark Litigation Update – Jane Ruemmele v. Fundex

13 Tuesday Jul 2010

Posted by Kenan Farrell in Copyright, Indiana, Intellectual Property, Litigation, Trademark

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An Indianapolis lawyer who created the game “Chronology” is accusing Fundex Games Ltd. of trademark infringement.

Jane Ruemmele, a Marion County public defender, filed suit March 24 in U.S. District Court of Southern Indiana. The lawsuit alleges breach of contract, trademark infringement, use of a counterfeit mark, unfair competition, copyright infringement, trademark dilution and forgery.

Ruemmele is seeking damages, plus a judgment for the return or destruction of all products bearing the Chronology trademark.

Fundex is a family-owned company based in Plainfield that sells licensed games, plus standard games such as checkers and chess. Ruemmele holds the trademark and copyright to the game Chronology, which she first licensed in 1995.

Fundex acquired the licensing rights to “Chronology” in October of 2007 with the purchase of Great American Puzzle Factory, according to the lawsuit. The deal that Ruemmele struck with Great American in 1995 provides her royalty payments of 6 percent of net sales. The rate rises to 8 percent after the first 100,000 games are sold.

“Fundex has sold numerous units of the card game since its acquisition of Great American,” the lawsuit alleges, but the company has provided no royalty statements or payments since October 2008.

Ruemmele also believes the payments Fundex made up to that point were less than required under the license agreement.

The lawsuit says Ruemmele attempted to work with Fundex to extend the license agreement past an expiration date of March 31, 2008, or to strike a new deal. “However, Fundex continually refused to return calls or correspondence from Ruemmele or her attorney while Fundex continued to sell and market the card game.”

Jonathan Polak, the Taft Stettinius & Hollister LLP attorney representing Ruemmele, said his client isn’t sure exactly how many copies of Chronology have been sold by Fundex—that’s why she’s seeking an audit. The contract with Great American gave Ruemmele the right to inspect company sales records.

Polak wouldn’t say how much “Chronology” had earned before Fundex acquired the game.

Ruemmele’s relationship with Great American, formerly based in Connecticut, suggests the game was successful.

Ruemmele and Great American renewed the contract in 2000 and again on Oct. 15, 2007, shortly before the sale to Fundex.

Great American also paid Ruemmele an annual, guaranteed advance of $1,000, according to the license contract.

Source: Indianapolis Business Journal

Indiana Trademark Litigation Update – Sweetwater Sound v. J2 Electronics Group

13 Tuesday Jul 2010

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

≈ 2 Comments

Tags

Common Law Trademark, False Description, Litigation Update, Philip P. Simon, Roger B. Cosbey, Unfair Competition

Sweetwater Sound v. J2 Electronics Group

Both Plaintiff and Defendant are in the business of selling audio recording and reproduction equipment, musical instruments and accessories. Defendant allegedly is knowingly infringing Plaintiff’s registered trademark SWEETWATER.

Court Case Number: 1:10-cv-00219-PPS-RBC
File Date: Wednesday, July 07, 2010
Plaintiff: Sweetwater Sound Inc.
Plaintiff Counsel: Larry L. Barnard, Robert T. Keen Jr. of Carson Boxberger LLP
Defendant: J2 Electronics Group Ltd.
Cause: Federal Trademark Infringement, Common Law Trademark Infringement, Unfair Competition, False Description
Court: Northern District of Indiana
Judge: Chief Judge Philip P. Simon
Referred To: Magistrate Judge Roger B. Cosbey

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Indiana Copyright Litigation Update – Interactive Intelligence v. Advanced Information Systems

12 Monday Jul 2010

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

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Breach of Contract, Copyright Infringement, Federal Trademark Infringement, Tanya Walton Pratt, Tim A. Baker, Unfair Competition

Interactive Intelligence v. Advanced Information Systems

Defendant was a reseller of Plaintiff’s telephony software. After an alleged breach of contract, Defendant continued to use Plaintiff’s copyrighted software and trademarks. Please leave a comment if you’d like a full copy of the complaint.

Court Case Number: 1:10-cv-00842-TWP -TAB
File Date: Thursday, July 01, 2010
Plaintiff: Interactive Intelligence, Inc.
Plaintiff Counsel: Constance R. Lindman, Tami L. Napier of Overhauser & Lindman LLC
Defendant: Advanced Information Systems, Inc.
Cause: Breach of Contract, Federal Trademark Infringement, Federal Unfair Competition, Copyright Infringement
Court: Southern District of Indiana
Judge: Judge Tanya Walton Pratt
Referred To: Magistrate Judge Tim A. Baker

View this document on Scribd
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