Category Archives: Northern District of Indiana

December 2023 Indiana Intellectual Property Litigation Update

15 Friday Dec 2023

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

≈ Leave a comment

Tags

Happy holidays to every reader of the Indiana Intellectual Property Blog. It was a quiet month in Indiana copyright and trademark litigation as most litigators turned to their turkey and pie, but a few lawsuits did manage to settle, presumably because of influence of the holiday spirit. A new lawsuit involving a short music clip used in a 2016 social media post should serve as a warning to all businesses to set aside time in the new year to audit old social media content. Read on below for the latest updates on all pending IP litigation and we’ll see you next in 2024.

Sears Authorized Hometown Stores, LLC v. Lynn Retail, Inc. et al. (SD, filed 6/4/2021) – On December 12, 2023, the defendants filed a Motion to Dismiss the lawsuit with prejudice, based on a settlement in a bankruptcy proceeding.

Noble Roman’s, Inc. v. AMI Stores Management, Inc. et al. (SD, filed 6/6/2021) – No update this month. Dismissal papers are due by February 7, 2024.

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – No update this month. Trial is scheduled on February 27, 2024.

Gabet et al. v. Amazon.com. Inc. et al. (ND, filed 1/20/2022) – Amazon filed an Amended Answer to Complaint on December 12, 2023.

The Evolutionary Level Above Human, Inc. v. Havel et al (ND, filed 5/18/2022) – Several new motions were filed over the last month. So many, in fact, that the Court has prohibited the filing of any new motions without the Court’s permission. Defendant Havel filed a rare Motion for Preliminary Injunction on Plaintiffs Registering New Copyrights and/or Trademarks, to which the Plaintiff filed a strong response on December 4, 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, apart from a letter being returned undeliverable.

The Center for Gestalt Development, Inc. v. Bowman (SD (11/09/2022) – Defendant Robine filed an Amended Answer to Complaint on December 8, 2023. A telephonic status conference is scheduled on December 18, 2023.

1.4G Holdings, LLC v. North Central Industries, Inc. et al. (SD 1/05/2023) – The Defendants’ deadline to file their Response to Plaintiff’s Motion to Dismiss is to December 26, 2023.

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

Delta Faucet Company v. Watkins et al. (SD 2/01/2023) – On December 8, 2023, final judgment was entered in the mount of $5,402,245, along with a permanent injunction, and the lawsuit was closed.

Taylor Shaye Designs LLC v. Shein Distribution Corp. (SD 4/11/2023) – The lawsuit was dismissed with prejudice on November 16, 2023.

HealthSmart Foods, Inc. v. Sweet Nothings, Inc. et al. (SD 4/13/2023) – A Settlement Conference was held on December 7 and 8, 2023, and the lawsuit was settled. A Stipulation of Dismissal was filed on December 14, 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) –  A trial date has been set on May 5, 2025. A final pretrial conference will be held on April 17, 2025.

Nickel and Dimes Incorporated v. Noah’s Arcade LLC et al (ND 7/25/2023) – A Scheduling Order was entered on December 5, 2023 and the parties filed their Corporate Disclosure Statements.

Hoffman v. Lauth Investigations International Inc. (SD 9/18/2023) – On December 13, 2023, the defendant requested, via unopposed motion, to extend its deadline to respond until January 3, 2024.

Banjo Corporation v. Green Leaf, Inc. (SD 9/29/2023) – The plaintiff has requested an extension of time to respond to the counterclaims in the Answer.

Perma-Green Supreme, Inc. v. Dr. Permagreen, LLC et al. (ND 10/06/2023) – An Amended Answer to Complaint was filed on December 8, 2023. Discovery deadlines were set via Scheduling Order on December 11, 2023.

Secada Medical LLC d/b/a Ventris Medical, LLC v. Nexxt Spine, LLC (SD 11/01/2023) – Matthew J. Clark has entered an appearance on behalf of the defendant.

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) –  The defendant did not file an Answer by the December 11, 2023 deadline.

Stross v. Homestead Properties, Inc. (SD 11/09/2023) – On November 21, 2023, the Court entered an Order requiring the plaintiff to file a separate motion for preliminary injunctive relief, as the Complaint contained a request for a preliminary injunction. That’s a little more work than you usually would expect in a photography lawsuit, which typically settle early, so we’ll see whether the plaintiff follows up on their initial request for the preliminary injunction.

Matsumoto v. Pho Real LLC (SD 11/15/2023) – Robert L. Nicholson has entered an appearance on behalf of the defendant. On December 14, 2023, the defendant filed a Notice of Parties’ First Extension of Time.

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

November 2023 Updates – October 2023 Updates – September 2023 Updates

August 2023 Updates – July 2023 Updates – June 2023 Updates – May 2023 Updates

April 2023 Updates – March 2023 Updates – February 2023 Updates – January 2023 Updates

December 2022 Updates –  December 2021 Updates

November 2023 Indiana Intellectual Property Litigation Update

15 Wednesday Nov 2023

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

≈ Leave a comment

Tags

The last month in Indiana Intellectual Property litigation definitely took on a Halloween theme, including new cases involving unauthorized mattresses, plaster falling off the ceiling, bovine collagen and surgical kits. One trademark lawsuit looked set for trial in early November but was continued until February due to the lead counsel contracting COVID. Many lawsuits have a telephonic conference scheduled over the next 30 days, so perhaps we’ll see some significant updates early next year. Read on for updates on all pending Indiana trademark and copyright litigation. Leave a comment below and let us know which cases you are closely following.

Sears Authorized Hometown Stores, LLC v. Lynn Retail, Inc. et al. (SD, filed 6/4/2021) – A Telephonic Status Conference is scheduled on November 15, 2023.

Noble Roman’s, Inc. v. AMI Stores Management, Inc. et al. (SD, filed 6/6/2021) –  A Settlement Conference was held on November 9, 2023, and the Court reports that the case is settled. The parties have 90 days to file a Stipulation of Dismissal.

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – This lawsuit was lurching toward a rare trademark trial on November 6, 2023, with over 20 filings since last month’s update, including motions, responses, proposed voir dire, objections, and more. However, due to an even more rare Emergency Motion to Continue Trial Due to Covid, the trial has been moved to February 27, 2024.

Gabet et al. v. Amazon.com. Inc. et al. (ND, filed 1/20/2022) – A Telephonic Discovery Conference was held on November 2, 2023.

The Evolutionary Level Above Human, Inc. v. Havel et al (ND, filed 5/18/2022) – Several motions and responses were filed in the last month.

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) –  The plaintiff filed a Motion for Entry of Default on October 20, 2023. The Clerk’s Entry of Default was entered on November 8, 2023.

The Center for Gestalt Development, Inc. v. Bowman (SD (11/09/2022) – On October 27, 2023, the Court denied Defendant Bowman’s Motion for Leave to File Early Summary Judgment Motion.

1.4G Holdings, LLC v. North Central Industries, Inc. et al. (SD 1/05/2023) – The defendants filed their answer on November 2, 2023, including affirmative defenses and counterclaims seeking cancellation of the plaintiff’s trademark registrations. The defendants are represented by Meaghan K. Haller, Alex E. Gude, and Jessica L. Meek of Dentons Bingham Greenebaum LLP and John H. Brooke of Brooke & Struble, P.C.

Albert’s Diamond Jewelers, Inc. v. AaLand Diamond Jewelers LLC (ND 2/01/2023) – The parties filed a Motion to Stay on October 24, 2023. The parties have been ordered to file dismissal papers by January 25, 2024.

Delta Faucet Company v. Watkins et al. (SD 2/01/2023) – On November 1, 2023, the Court ordered Delta to file a Notice by November 15, 2023, which addresses whether the Court has personal jurisdiction over the named defendant.

Taylor Shaye Designs LLC v. Shein Distribution Corp. (SD 4/11/2023) – The plaintiff filed a Stipulation of Dismissal on November 14, 2023.

HealthSmart Foods, Inc. v. Sweet Nothings, Inc. et al. (SD 4/13/2023) – A Status Conference was held on November 6, 2023 and another is scheduled on November 27, 2023. On November 3, 2023, the defendants filed their response to the plaintiff’s Motion for Preliminary Injunction. The response accuses the plaintiff of fraud on the USPTO, unreasonable delay, and unclean hands. It further emphasizes that there has been no evidence of consumer confusion. The plaintiff’s reply to their Motion for PI, due shortly, is now a must-read document.

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) –  A Telephonic Rule 16 Preliminary Pretrial Conference was held on November 14, 2023. Daniel Joseph Layden has entered an appearance on behalf of the defendant.

Nickel and Dimes Incorporated v. Noah’s Arcade LLC et al (ND 7/25/2023) – A Telephonic Rule 16 Preliminary Pretrial Conference is scheduled on November 29, 2023.

Hoffman v. Lauth Investigations International Inc. (SD 9/18/2023) – The time to respond to the Complaint has been extended to November 22, 2023.

Banjo Corporation v. Green Leaf, Inc. (SD 9/29/2023) – A Telephonic Rule 16 Preliminary Pretrial Conference is scheduled on December 19, 2023.

Perma-Green Supreme, Inc. v. Dr. Permagreen, LLC et al. (ND 10/06/2023) – The time to respond to the Complaint has been extended to November 27, 2023. A Telephonic Rule 16 Preliminary Pretrial Conference is scheduled on December 14, 2023.

Secada Medical LLC d/b/a Ventris Medical, LLC v. Nexxt Spine, LLC (SD 11/01/2023) – No update yet.

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) – No update yet.

Stross v. Homestead Properties, Inc. (SD 11/09/2023) – No update yet.

October 2023 Updates – September 2023 Updates

August 2023 Updates – July 2023 Updates – June 2023 Updates – May 2023 Updates

April 2023 Updates – March 2023 Updates – February 2023 Updates – January 2023 Updates

December 2022 Updates –  December 2021 Updates

Tempur Sealy sues Valparaiso Furniture Store for Trademark Infringement

14 Tuesday Nov 2023

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

≈ Leave a comment

Tags

, , , , ,

A furniture store in Valparaiso, Indiana is accused of the unauthorized use of the Tempur-Pedic® trademark. The store had been an authorized dealer of Tempur-Pedic products until February 2, 2023, when the dealer relationship was terminated by Tempur Sealy. Upon termination of the relationship, the store was to cease all use of Tempur Sealy’s trademarks.

Despite multiple warnings by Tempur Sealy, the Complaint (below) details continued use by the furniture store, at least through August 27, 2023, of the Tempur-Pedic trademark on point-of-sale materials in the store, on exterior windows, and on the store’s website.

The Valparaiso store is alleged to have continued use of the Tempur-Pedic trademark “to attract customers for the purpose of selling non-authorized and competing products in a manner that falsely suggests and implies to consumers that Defendant maintains a relationship with Tempur Sealy as an authorized retailer.”

Stay tuned for updates.

Tempur Sealy International, Inc. et al. v. Luxury Mattress & Furniture, LLC

Court Case Number: 2:23-cv-00383-PPS-APR
File Date: November 9, 2023
Plaintiff: Tempur Sealy International, Inc., Tempur-Pedic Management, Inc., Tempur-Pedic North America, LLC, Tempur World, LCC, Dan-Foam APS, Sealy Technology LLC
Plaintiff Counsel: James N. Martin, Jr. of Steptoe & Johnson PLLC
Defendants: Luxury Mattress & Furniture, LLC d/b/a Luxury Mattress & Furniture
Cause: Federal Trademark Infringement, Federal Unfair Competition, Federal False Advertising, Federal Trademark Dilution
Court: Northern District of Indiana
Judge: Philip P. Simon
Referred To: Andrew P. Rodovich

Complaint:

Photography Lawsuit filed in Indiana over “Plaster falling off the ceiling”

06 Monday Nov 2023

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

≈ Leave a comment

Tags

, , , ,

I’m amazed that I still have to say this but, businesses, stop using Google Images to find photos for your website.

Here’s another copyright lawsuit where the defendant, this time an insurance adjuster from Merrillville, Indiana, apparently used a professional photographer’s photograph in an online advertisement without permission. The photograph, descriptively titled “Plaster falling off the ceiling” (see Complaint below) was apparently used by the defendant in the background of an advertisement for insurance claims for poorly installed stucco.

I’m guessing that the defendant simply found the photograph via Google Search, perhaps with a search for the exact title, and unwittingly put the photograph in background of their advertisement. Note that the registrant of the insurance adjuster’s website was also named as a defendant. If they were also the website developer, they might have some direct responsibility for the content of the website and use of the plaintiff’s photograph.

Usually these lawsuits can be settled quickly but stay tuned to see whether the defendant can assert any creative defenses or explanations. Stay tuned for updates.

Radic v. AllCity Adjusting LLC et al

Court Case Number: 1:23-cv-00468-HAB-SLC
File Date: November 3, 2023
Plaintiff: Ivan Radic
Plaintiff Counsel: J. Campbell Miller, Evan A. Andersen of SRIPLAW, P.A.
Defendants: AllCity Adjuster LLC, Zor Development LLC
Cause: Copyright Infringement, Removal of Copyright Management Information, Addition of False Copyright Management Information
Court: Northern District of Indiana
Judge: Holly A. Brady
Referred To: Susan L. Collins

Complaint:

October 2023 Indiana Intellectual Property Litigation Update

16 Monday Oct 2023

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

≈ Leave a comment

Tags

Fall is here. The cooling temperatures and falling leaves have brought with them a busy month in Indiana trademark and copyright litigation, including new lawsuits over control valve handle colors and counterfeit lawnmower parts, along with significant developments in many pending cases. Read on for updates on all pending Indiana IP lawsuits and let us know in the comments which lawsuits you are following most closely.

Sears Authorized Hometown Stores, LLC v. Lynn Retail, Inc. et al. (SD, filed 6/4/2021) – The parties have been granted until October 27, 2023 to complete settlement.

Noble Roman’s, Inc. v. AMI Stores Management, Inc. et al. (SD, filed 6/6/2021) –  A telephonic status conference is scheduled for November 17, 2023.

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – On September 15, 2023, the Court granted in part and denied part the plaintiff’s summary judgment motion. The plaintiff filed its Trial Brief along with related trial documents on October 9, 2023. On October 13, 2023, the defendant filed a motion to amend/correct the Court’s September 15 Order. The Court had apparently used ambiguous language regarding the plaintiff’s priority rights to its trademark.

Gabet et al. v. Amazon.com. Inc. et al. (ND, filed 1/20/2022) – On October 4, 2023, Amazon filed its Answer to Amended Complaint. In its counterclaims, Amazon seeks cancellation of several of the plaintiff’s trademark registration along with declaratory judgment of non-infringement.

The Evolutionary Level Above Human, Inc. v. Havel et al (ND, filed 5/18/2022) – The parties are deep into discovery and there were numerous motions and filings over the last month, including two of the defendants’ responses to interrogatories. If you are following this lawsuit closely, these new filing may give you some additional interesting information.

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) –  Due to lack of activity, the Court issued an Order to Show Cause on October 3, 2023. The plaintiff filed its response on October 10, 2023, advising that, having served the Georgia Secretary of State, it would soon be filing a new entry of default.

MaddenCo Inc. v. Reed et al. (SD, filed 10/31/2022) –  This lawsuit was transferred to the Middle District of Louisiana on September 27, 2023.

The Center for Gestalt Development, Inc. v. Bowman (SD (11/09/2022) – On October 6, 2023, the defendant filed a Motion for Leave to File Early Summary Judgment. The Defendant seeks early summary judgment on the single issue of whether the Plaintiff owned any cause of action for copyright infringement occurring before it was assigned the subject copyright.

1.4G Holdings, LLC v. North Central Industries, Inc. et al. (SD 1/05/2023) – On October 6, 2023, the Court granted defendant Brown’s Motion to Dismiss for lack of personal jurisdiction and denied the Defendants’ partial Motion to Dismiss Count III and Count VI for failure to state a claim. For the meantime, the lawsuit will continue without Defendant Brown.

Albert’s Diamond Jewelers, Inc. v. AaLand Diamond Jewelers LLC (ND 2/01/2023) – On September 27, 2023, the Court denied the plaintiff’s Motion to Bifurcate filed in June 2023. The Court stated that the defendant’s “allegations of prejudice and inefficiency are generic and vague; ultimately, they are insufficient to convince the Court that bifurcation is justified in this case.”

Delta Faucet Company v. Watkins et al. (SD 2/01/2023) – On September 26, 2023, Delta Faucet filed a Motion for Default Judgment against Defendant Watkins.

Roller Ready, LLC v. LA Systems, LLC d/b/a Monkey Rung et al. (ND 2/14/2023) – The lawsuit was dismissed with prejudice on September 19, 2023.

Taylor Shaye Designs LLC v. Shein Distribution Corp. (SD 4/11/2023) – The parties have been granted until October 30, 2023 to file dismissal paperwork.

HealthSmart Foods, Inc. v. Sweet Nothings, Inc. et al. (SD 4/13/2023) – The plaintiff filed a Motion for Preliminary Injunction on October 3, 2023. On October 10, 2023, the plaintiff filed its response in opposition to the Motion to Transfer Venue. A Status Conference was held with the Court on October 12, 2023.

Sak Group, Inc. v. Blue Hill Hospitality, Inc. (ND 4/25/2023) – A Rule 16 Pretrial Conference was held on September 19, 2023. Discovery deadlines have been set.

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 plaintiff’s time to serve the defendant has been extended to November 7, 2023.

Nickel and Dimes Incorporated v. Noah’s Arcade LLC et al (ND 7/25/2023) – On September 26, 2023, the defendants filed their Answer to Amended Complaint, along with several standard Affirmative Defenses, including a correction to their arcade location. The defendants are represented by Nicholas T. Otis of Newby Lewis Kaminski & Jones, LLP.

Hoffman v. Lauth Investigations International Inc. (SD 9/18/2023) – No update this month.

Banjo Corporation v. Green Leaf, Inc. (SD 9/29/2023) – No update yet.

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

September 2023 Updates

August 2023 Updates – July 2023 Updates – June 2023 Updates – May 2023 Updates

April 2023 Updates – March 2023 Updates – February 2023 Updates – January 2023 Updates

December 2022 Updates –  December 2021 Updates