Category Archives: Northern District of Indiana

False Advertising Lawsuit filed in Indiana over Paint Roller Cleaners

21 Tuesday Feb 2023

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

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Paint roller cleaners are the subject of the latest Indiana false advertising and trademark lawsuit. More specifically, the lawsuit involves the alleged behavior of defendants that held out a plaintiff’s product as their own while actually selling competing product.

The plaintiff is Roller Ready, LLC of Fort Wayne, Indiana, owner of trademark and patent rights in a ROLLER READY product that cleans paint rollers.

In 2021, Roller Ready agreed to let an individual promote their product at the 2021 National Hardware Show. However, the product was apparently promoted under the brand of another company, Monkey Rung. The product won an award and all resulting recognitions went to Monkey Rung rather than Roller Ready.

Online links about the Roller Ready product point to Monkey Rung’s website with a competing product. Monkey Rung controls, and seemingly won’t relinquish, an Amazon listing for the Roller Ready product. Monkey Rung even listed the Roller Ready product on its own website’s Product Portfolio (see Complaint below).

The defendants are accused of intentionally misleading the public and degrading Roller Ready’s goodwill. Defendants act as if they own the Roller Ready product, so maybe they think they do. There are often two sides to a story, so stay tuned for what will likely be an interesting Answer. The defendants are not from Indiana, so first there could be some jurisdictional challenges.

Roller Ready, LLC v. LA Systems, LLC d/b/a Monkey Rung et al.

Court Case Number: 1:23-cv-00068-HAB-SLC
File Date: February 14, 2023
Plaintiff: Roller Ready, LLC
Plaintiff Counsel: Benjamin D. Ice of Barrett McNagny LLP
Defendant: LA Systems, LLC d/b/a Monkey Rung, Paul Kiley
Cause: False Advertising, False Marking, Indiana Deceptive Trade Practices Act, Federal Trademark Infringement
Court: Northern District of Indiana
Judge: Holly A. Brady
Referred To: Susan L. Collins

Complaint:

February 2023 Indiana Intellectual Property Litigation Update

15 Wednesday Feb 2023

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

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The last four weeks have been relatively quiet for Indiana trademark and copyright lawsuits. A few lawsuits settled unceremoniously. Several telephonic conferences were held and some follow-up conferences have been scheduled. A few motions are now fully-briefed, so next month could see several important court orders.

Sears Authorized Hometown Stores, LLC v. Lynn Retail, Inc. et al. (SD, filed 6/4/2021) – On January 27, 2023, the Court, following advisement by counsel that settlement was reached, ordered that dismissal documents be filed within 30 days.

Noble Roman’s, Inc. v. AMI Stores Management, Inc. et al. (SD, filed 6/6/2021) –  AMI has requested a two-day extension of time to February 17, 2023 to reply to the Noble Roman’s Motion for Partial Summary Judgment.

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – A hearing is schedule on February 22, 2023 on Defendant’s fully-briefed Motion to Compel Documents from Plaintiff.

Thomas v. ooShirts, Inc. et al. (SD, filed 9/24/2021) – The parties held a telephonic status conference on February 9, 2023 and another is scheduled on March 8, 2023.

Edutainment Live, LLC v. Video Game Palooza et al. (SD, filed 10/11/2021) –  The parties held a telephonic status conference on February 2, 2023 and another is scheduled on February 22, 2023.

Gabet et al. v. Amazon.com. Inc. et al. (ND, filed 1/20/2022) – The parties held a telephonic status conference on February 10, 2023 and another is scheduled on March 23, 2023.

NuStar Enterprises LLC v. Reloaded Merch LLC et al. (ND, filed 4/1/2022) – On January 27, 2023, the lawsuit was dismissed with prejudice, all parties bearing their own costs and attorneys’ fees.

The Evolutionary Level Above Human, Inc. v. Havel et al (ND, filed 5/18/2022) –  Motions, responses, and replies, oh my. This case has seen nearly 20 filings in the last month, so if you’re following along with this lawsuit, go check out PACER for all the details.

PUMA SE et al. v. Brooks Sports, Inc. (SD, filed 7/8/2022) – On January 20, 2023, the lawsuit was transferred to the Western District of Washington and assigned case number 2:23-cv-00116.

Broadcast Music, Inc. et al v. Thirty-Six Saloon, LLC d/b/a Thirty Six Saloon et al. (SD, filed 7/27/2022) – On January 27, 2023, BMI filed a Motion for Default Judgment.

Schwartz v. Kilroy’s North America, LLC et al (SD, filed 8/5/2022) – The parties held a telephonic status conference on January 9, 2023 and a settlement conference is scheduled on March 13, 2023.

Oakley, Inc. v. Batter’s Box Training, LLC et al (SD, filed 8/11/2022) – The parties held a telephonic status conference on February 6, 2023 and a settlement conference is scheduled on March 2, 2023.

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

Phoenix USA RV, Inc. v. Hoosier Custom Cruisers LLC et al. (ND, removed 10/7/2022) – The Court modified a non-dispositive motion deadline but there we no other updates this month.

MaddenCo Inc. v. Reed et al. (SD, filed 10/31/2022) – On January 26, 2023, Defendant Darby filed a Motion to Dismiss for Lack of Jurisdiction. A telephonic pretrial conference is scheduled for February 22, 2023.

The Center for Gestalt Development, Inc. v. Bowman (SD (11/09/2022) – As of February 10, 2023, the Defendant’s Motion to Dismiss for Lack of Venue is now fully-briefed.

1.4G Holdings, LLC v. North Central Industries, Inc. et al. (SD 1/05/2023) – A telephonic pretrail conference is scheduled on April 11, 2023.

Stross v. Lynn Boolman Auto Sales Limited Liability Company et al. (ND 1/25/2023) – No update yet.

Albert’s Diamond Jewelers, Inc. v. AaLand Diamond Jewelers LLC (ND 2/01/2023) – No update yet.

Delta Faucet Company v. Watkins et al. (SD 2/01/2023) – No update yet.

January 2023 Updates

December 2022 Updates –  December 2021 Updates

Northwest Indiana Jewelry Stores Clash over Diamond Logos

03 Friday Feb 2023

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

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Since 1905, Albert’s Diamond Jewelers has been selling diamond jewelry in Northwest Indiana. In 2002, they adopted the logo seen below when they moved to their current location in Schererville, Indiana. Their logo has not been registered with the United States Patent and Trademark Office.

The logo is described as follows: “The mark prominently incorporates a diamond drawing with sharp edges and a multitude of internal sketch lines, all intended to evoke in a potential customer’s mind a precision cut, high-quality diamond. It’s name “Albert’s” appears above the term “Diamond Jewelers,” and incorporates a distinct style of typeface/font….” See Complaint (below), Section 13.

AaLand Diamond Jewelers recently opened a new location in Crown Point, Indiana, which is about 9 miles away from Schererville. AaLand has adopted a logo that Albert’s considers to be “suspiciously similar” to the 21-year old Albert’s logo.

Albert’s reached out to AaLand in late 2022 about their concern, but the parties have not found an amicable resolution. Albert’s initial letter, via counsel, references a single instance of consumer confusion in which an anonymous customer congratulated Albert’s on opening a new store. Albert’s has now filed a lawsuit seeking Court intervention.

I’ll let defense counsel do their job and dig up tons of other photos of similar jewelry store logos, but I can at least compare the parties’ respective logos.

In my opinion, the distinctive elements of the Albert’s font are the swooping, extended arm (leg?) of the “A” and the diamond-shaped asterisk. Neither of those elements appear in the AaLand logo. I wouldn’t be surprised to find out that the AaLand font is just a standard, stock font. Font experts leave a comment below. Albert’s utilizes all capitalized letters, while AaLand features the lower case “a”.

Looking at the two diamonds, they are clearly not identical. They both appear just like what you’d expect a diamond logo to look like, basically what you see on most jewelry store signs. Both are the classic diamond-shape outline with many internal lines depicting facets, just like a diamond. Jewelry experts (and eventually defense counsel) may be able to identify the differences in cuts portrayed on the logos.

Both logos incorporate the generic phrase “Diamond Jewelers,” but the Albert’s logo separates their name from the generic phrase with lines both above and below. The generic phrase is about 5/7 the width of the Albert’s name. The AaLand name is the same width as the generic phrase and separated by one line, which is also the same width as the wording.

If these two jewelry stores weren’t 9 miles apart, would there be any problem? Does close proximity (9 miles) override the ability to use generic elements in your logo? AaLand apparently doesn’t think so based off just one anonymous instance of consumer confusion.

Stay tuned for AaLand’s response to Albert’s Complaint.

Albert’s Diamond Jewelers, Inc. v. AaLand Diamond Jewelers LLC

Court Case Number: 2-23-cv-00039-PPS-JPK
File Date: February 1, 2023
Plaintiff: Albert’s Diamond Jewelers, Inc.
Plaintiff Counsel: Gary E. Hood of Hood Legal Group PC, Daniel W. Glavin of O’Neill McFadden & Willett LLP
Defendants: AaLand Diamond Jewelers LLC
Cause: Federal Trademark Infringement, False Designation of Origin, Federal Unfair Competition, Indiana Trademark Infringement, Common Law Unfair Competition
Court: Northern District of Indiana
Judge: Philip P. Simon
Referred To: Joshua P. Kolar

Complaint:

Austin-based Photographer sues Portland, Indiana Car Dealership for Copyright Infringement

27 Friday Jan 2023

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

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The plaintiff in this copyright lawsuit is a professional photographer from Austin, Texas. His work is focused on architectural and landscape photography.

One defendant, Lynn Boolman Auto Sales (“Boolman”), is a used car dealership in Portland, Indiana.

The other defendant, Carsforsale.com, is an online auto marketplace operating out of Sioux Falls, South Dakota. It seems from the Complaint (below) that both defendants made an unauthorized use of one of the plaintiff’s landscape photographs, including cropping the photograph to remove the photographer’s signature.

It is not clear whether there is any other connection between the two defendants besides both using the photograph. Jurisdiction over Carsforsale.com seems tenuous. At least from the Complaint and related Exhibit (below), I don’t see any action that Carsforsale.com took in Indiana, either if they first posted the photograph online or if Boolman posted it to their website.

In addition to the Copyright Infringement claim, the Complaint also includes a claim for Removal of Copyright Management Information, based on the cropping of the author’s signature. However, one of the more interesting and unusual aspects of the lawsuit is the plaintiff’s third claim for Addition of False Copyright Management Information, based on the car dealership overlaying its own logo and contact information onto the (cropped) plaintiff’s photograph. Presumably, the dealership will maintain that the information added to the photograph does not identify the author or copyright owner, and thus doesn’t qualify as “copyright management information” (see definition here).

The plaintiff made prior unsuccessful attempts to negotiate with the defendants in December 2021 and January 2022. Finding no satisfactory resolution, the plaintiff now seeks the intervention of the Court. Photography copyright lawsuits often settle quickly, but stay tuned for updates.

Stross v. Lynn Boolman Auto Sales Limited Liability Company et al

Court Case Number: 3:23-cv-00061-DRL-MGG
File Date: January 25, 2023
Plaintiff: Alexander Bayonne Stross
Plaintiff Counsel: Evan A. Andersen of SRIPLAW, P.A.
Defendants: Lynn Boolman Auto Sales Limited Liability Company, Carsforsale.com, Inc.
Cause: Copyright Infringement, Removal of Copyright Management Information, Addition of False Copyright Management Information
Court: Northern District of Indiana
Judge: Damon R. Leichty
Referred To: Michael G. Gotsch, Sr.

Complaint:

Exhibit 2:

January 2023 Indiana Intellectual Property Litigation Update

17 Tuesday Jan 2023

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

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As usual, there was not much action over the holiday period in Indiana copyright and trademark lawsuits. The big surprise of the last month was a Notice of Settlement filed in the Omi in a Hellcat “Reloaded” lawsuit on December 23, 2022. Terms of settlement have not been made public and we’re still awaiting the dismissal documents, but it seems to have come rather abruptly considering recent filings.

The next few months should be busier as new judges take over existing lawsuits. Stay tuned for updates.

Sears Authorized Hometown Stores, LLC v. Lynn Retail, Inc. et al. (SD, filed 6/4/2021) – Plaintiff’s deadline to serve final witness and exhibit lists has been extended to January 20, 2023.

Noble Roman’s, Inc. v. AMI Stores Management, Inc. et al. (SD, filed 6/6/2021) –  Noble Roman’s filed a Motion for Summary Judgment on December 21, 2022.

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – The parties filed a Joint Status Report with several updates.

Thomas v. ooShirts, Inc. et al. (SD, filed 9/24/2021) – The Defendants filed an Answer on January 11, 2023, after receiving leave to file after their deadline. The parties held a status conference with the Court on January 12, 2023 and another is scheduled on February 8, 2023.

Edutainment Live, LLC v. Video Game Palooza et al. (SD, filed 10/11/2021) –  No update this month.

Innovative Sports Management Inc. v. La Jalisco LLP (SD, filed 12/15/2021) –  A default judgment was entered on December 15, 2022. In total, the Plaintiff was awarded $42,000.48.

Gabet et al. v. Amazon.com. Inc. et al. (ND, filed 1/20/2022) – A settlement conference is scheduled for August 31, 2023.

Reid v. Stephenson (SD, filed 1/27/2022) – A telephonic status conference was scheduled for January 24, 2023 but the case was subsequently assigned to Magistrate Judge M. Kendra Klump. The new case number is 1:22-cv-00205-JRS-MKK.

NuStar Enterprises LLC v. Reloaded Merch LLC et al. (ND, filed 4/1/2022) – A joint Notice of Settlement was filed on December 23, 2022. The plaintiff was given 30 days to file dismissal documents.

The Evolutionary Level Above Human, Inc. v. Havel et al (ND, filed 5/18/2022) –  A video motion hearing is scheduled for February 10, 2023, to discuss Defendant Bartel’s pending motions.

PUMA SE et al. v. Brooks Sports, Inc. (SD, filed 7/8/2022) – The Court entered a Uniform Stipulated Protective Order on December 19, 2022. No other updates.

Broadcast Music, Inc. et al v. Thirty-Six Saloon, LLC d/b/a Thirty Six Saloon et al. (SD, filed 7/27/2022) – No update this month.

Schwartz v. Kilroy’s North America, LLC et al (SD, filed 8/5/2022) – A telephonic status conference was held on January 9, 2023. A settlement conference will be schedule by separate order.

Oakley, Inc. v. Batter’s Box Training, LLC et al (SD, filed 8/11/2022) – Plaintiff has been authorized to file a motion to compel Defendants’ tax returns. A telephonic status conference is set for February 3, 2023.

Honest Abe Roofing franchise, Inc. v. DCH & Associates, LLC et al. (SD, filed 9/7/2022) – On December 7, 2022, a Clerk’s Entry of Default was entered against Defendants Christine Harris, Dameion Harris, and Honest Abe Roofing of Macon Georgia, LLC. On January 11, 2023, the Motion for Clerk’s Entry of Default against Defendant DCH & Associates, LLC was denied for lack of proper service.

Phoenix USA RV, Inc. v. Hoosier Custom Cruisers LLC et al. (ND, removed 10/7/2022) – No update this month.

MaddenCo Inc. v. Reed et al. (SD, filed 10/31/2022) – On December 27, 2022, the Plaintiff filed its Response to Defendant Reed’s Motion to Dismiss for Lack of Jurisdiction.

After receiving an extension of time, Defendant Reed’s Reply was filed on January 10, 2023.

The Center for Gestalt Development, Inc. v. Bowman (SD (11/09/2022) – On January 13, 2023, Defendant Bowman filed a Motion to Dismiss for Lack of Venue.

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

December 2022 Updates –  December 2021 Updates