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~ Trademark and Copyright Law Updates in Indiana

Indiana Intellectual Property Blog

Category Archives: Northern District of Indiana

October 2023 Indiana Intellectual Property Litigation Update

16 Monday Oct 2023

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

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Litigation Update

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.

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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.

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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.

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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.

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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.

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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.”

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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.

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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

Indiana Lawn Care Manufacturer sues eBay Counterfeiter in Northern District of Indiana

09 Monday Oct 2023

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

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Common Law Unfair Competition, Deceptive Consumer Sales, Federal False Advertising, Federal False Designation of Origin, Federal Trademark Infringement, John E. Martin, Philip P. Simon

Perma-Green, based in Valparaiso, Indiana, has manufactured and sold commercial lawn care products since 1973. They own an incontestable registration for the trademark PERMAGREEN for “mechanical spreaders and sprayers for the lawn care industry” with a claimed date of first use of February 1, 2005.

“Dr. Permagreen” is an eBay Seller account that lists over 1,400 Perma-Green products, including replacement parts. However, the parts being sold by the eBay account are allegedly low-quality counterfeit copies created in China, not authentic Perma-Green products.

Perma-Green alleges consumer confusion has been caused by the eBay account’s use of a similar name and deceptive product titles, with consumers falsely believing that the eBay account is associated with Perma-Green and that the products originate from Perma-Green. Consumer complaints over defective products were incorrectly directed towards Perma-Green, presumably damaging the goodwill in their brand.

Faulty or defective parts can obviously be a big problem when it comes to lawn care equipment by creating an increased risk of serious injury. After unsuccessful cease-and-desist communications, Perma-Green has brought a lawsuit (see Complaint below) seeking court intervention in an attempt to halt the damage currently being done to its brand. The Complaint alleges willful infringement based on email communications from the alleged operator of the eBay account.

Stay tuned for updates.

Perma-Green Supreme, Inc. v. Dr. Permagreen, LLC et al.

Court Case Number: 2:23-cv-00341
File Date: October 6, 2023
Plaintiff: Perma-Green Supreme, Inc.
Plaintiff Counsel: P.Stephen Fardy, William D. Patterson of Swanson, Martin & Bell, LLP
Defendant: Dr. Permagreen, LLC, Michael Edward Klott, FTW Investments LLC
Cause: Federal Trademark Infringement, Federal False Designation of Origin, Federal False Advertising, Deceptive Consumer Sales, Common Law Unfair Competition
Court: Northern District of Indiana
Judge: Philip P. Simon
Referred To: John E. Martin

Complaint:

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September 2023 Indiana Intellectual Property Litigation Update

15 Friday Sep 2023

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

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Crystal S. Wildeman, Litigation Update

The end of the summer was a quiet time for Indiana Intellectual Property litigation. There were no new trademark or copyright lawsuits filed in the last month, and only a small amount of activity in pending cases. Read on below for updates on all pending litigation:

Sears Authorized Hometown Stores, LLC v. Lynn Retail, Inc. et al. (SD, filed 6/4/2021) – The parties’ deadline to complete settlement has been extended by motion to October 27, 2023.

Noble Roman’s, Inc. v. AMI Stores Management, Inc. et al. (SD, filed 6/6/2021) –  The Defendants filed their Amended Counterclaim on August 17, 2023, and Noble Roman’s filed its Answer to Counterclaim on August 31, 2023. A telephonic status conference was held on September 11, 2023.

View this document on Scribd

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – No update this month.

Gabet et al. v. Amazon.com. Inc. et al. (ND, filed 1/20/2022) – A settlement conference was held on August 31, 2023, but settlement was not achieved. A motion to maintain a document under seal is now fully-briefed as of September 12, 2023.

The Evolutionary Level Above Human, Inc. v. Havel et al (ND, filed 5/18/2022) – Defendant Bartel filed an Amended Answer to Amended Complaint on September 13, 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. 

MaddenCo Inc. v. Reed et al. (SD, filed 10/31/2022) –  The lawsuit has been assigned to Magistrate Judge Crystal S. Wildeman and assigned new case number 3:22-cv-00173-RLY-CSW.

The Center for Gestalt Development, Inc. v. Bowman (SD (11/09/2022) – A telephonic status conference was scheduled on September 14, 2023.

1.4G Holdings, LLC v. North Central Industries, Inc. et al. (SD 1/05/2023) – Case management deadlines were extended by motion on August 30, 2023.

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

Delta Faucet Company v. Watkins et al. (SD 2/01/2023) – The lawsuit has been assigned to Magistrate Judge Crystal S. Wildeman and assigned new case number 1:23-cv-00200-JMS-CSW. On September 14, 2023, the Plaintiff filed a Motion for Leave to Physically File Excel Spreadsheets in Support of Motion for Default Judgment on USB Flash Drive and Memorandum In Support.

Roller Ready, LLC v. LA Systems, LLC d/b/a Monkey Rung et al. (ND 2/14/2023) – A Notice of Settlement was filed on September 1, 2023. The parties have until October 2, 2023, to file dismissal papers.

Taylor Shaye Designs LLC v. Shein Distribution Corp. (SD 4/11/2023) – The deadline to file the stipulation of dismissal has been extended to September 28, 2023.

HealthSmart Foods, Inc. v. Sweet Nothings, Inc. et al. (SD 4/13/2023) – The lawsuit has been assigned to Magistrate Judge Crystal S. Wildeman and assigned new case number 3:23-cv-00060-MPB-CSW.

Sak Group, Inc. v. Blue Hill Hospitality, Inc. (ND 4/25/2023) – The parties’ Telephonic Rule 16 Preliminary Pretrial Conference is rescheduled to September 19, 2023. The Plaintiff filed its Answer to Counterclaims on September 1, 2023.

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National College Resources Foundation v. The Strong Friends LLC et al. (ND 5/4/2023) – No update this month.

The National Registry of Emergency Medical Technicians v. Dulaney et al. (SD 5/15/2023) – No update this month.

Joe Hand Promotions, Inc. v. LNH, LLC d/b/a Burlington Pizza/The Barn (ND 5/24/2023) – The lawsuit was dismissed with prejudice on August 30, 2023.

Sadowski v. Restoration 1 by J&D, LLC (SD 7/12/2023) – No update this month. 

Nickel and Dimes Incorporated v. Noah’s Arcade LLC et al (ND 7/25/2023) – An Amended Complaint was filed on September 5, 2023.

View this document on Scribd

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

August 2023 Indiana Intellectual Property Litigation Update

16 Wednesday Aug 2023

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

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Litigation Update

One new trademark lawsuit was filed in Indiana in the last month. Several pending cases are in the “middlegame” phase of repeated telephonic status conferences. The Munster, Indiana-based Buttermilk Pancake House has filed its Answer, along with a counterclaim for cancellation of the Plaintiff’s BUTTERMILK CAFÉ trademark registration. Noble Roman’s scored a big win with the Court granting summary judgment on several important claims. See below for the latest updates on all pending trademark and copyright lawsuits in Indiana.

Sears Authorized Hometown Stores, LLC v. Lynn Retail, Inc. et al. (SD, filed 6/4/2021) – The parties’ deadline to complete settlement has been extended by motion to August 28, 2023.

Noble Roman’s, Inc. v. AMI Stores Management, Inc. et al. (SD, filed 6/6/2021) –  In a big win for Noble’s Roman’s, on July 25, 2023, the Court granted Noble Roman’s Motion for Partial Summary Judgment. Breach of contract claims for underreporting sales and trademark infringement claims against a particular store were not included in the Summary Judgment. However, Noble Roman’s did receive a positive outcome on the following issues: (1) whether the AMI Stores breached the respective Franchise Agreements; (2) whether the AMI Stores violated the Lanham Act; (3) whether Noble Roman’s fraudulently induced the AMI Stores to enter into the Franchise Agreements; and (4) whether Noble Roman’s violated the Florida Deceptive and Unfair Trade Practices Act.

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On July 31, 2023, the Court granted in part the Defendants’ Motion to Amend Counterclaim, allowing the Defendants to file an amended counterclaim asserting breach of contract claims but omitting their other claims per the Partial Summary Judgment.

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – The Plaintiff’s motion to exclude one of Defendant’s experts is now fully-briefed, as of July 19, 2023. No other updates.

Gabet et al. v. Amazon.com. Inc. et al. (ND, filed 1/20/2022) – Amazon filed a Motion to Stay Discovery on July 25, 2023. On August 15, 2023, the Plaintiff filed a sealed Response to that motion. A virtual settlement conference is scheduled on August 31, 2023.

The Evolutionary Level Above Human, Inc. v. Havel et al (ND, filed 5/18/2022) – An Amended Complaint was filed on July 24, 2023. Defendant Bartel filed an Answer to Amended Complaint on August 15, 2023.

Oakley, Inc. v. Batter’s Box Training, LLC et al (SD, filed 8/11/2022) –  This lawsuit is still awaiting formal dismissal but the Court reports it has been settled.

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

MaddenCo Inc. v. Reed et al. (SD, filed 10/31/2022) –  The parties held a Telephonic State Conference on July 18, 2023 and another is scheduled for August 23, 2023.

The Center for Gestalt Development, Inc. v. Bowman (SD (11/09/2022) – The Defendant’s Motion to Dismiss for Lack of Venue was denied on July 31, 2023. Defendant Bowman filed an Answer on August 14, 2023.

View this document on Scribd

1.4G Holdings, LLC v. North Central Industries, Inc. et al. (SD 1/05/2023) – A telephonic status conference was held on July 20, 2023. The next status conference is scheduled on November 6, 2023.

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

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

Roller Ready, LLC v. LA Systems, LLC d/b/a Monkey Rung et al. (ND 2/14/2023) – Via motion, Plaintiff has been granted until September 24, 2023 to respond to the Defendants’ Motion to Dismiss (filed on July 5, 2023).

Taylor Shaye Designs LLC v. Shein Distribution Corp. (SD 4/11/2023) – The parties held an initial pretrial conference on August 1, 2023, wherein counsel reported that the case was settled. The parties must file a stipulation of dismissal by August 29, 2023.

HealthSmart Foods, Inc. v. Sweet Nothings, Inc. et al. (SD 4/13/2023) – A telephonic initial pretrial conference is scheduled on August 22, 2023.

Sak Group, Inc. v. Blue Hill Hospitality, Inc. (ND 4/25/2023) – A Telephonic Rule 16 Preliminary Pretrial Conference is scheduled on September 14, 2023. The Defendant, the Buttermilk Pancake House of Munster, Indiana, filed its Answer on August 11, 2023, including a counterclaim for Cancellation of the Plaintiff’s trademark registration for BUTTERMILK CAFÉ.

View this document on Scribd

As of today (August 16, 2023), the Buttermilk Pancake House has not yet filed a formal Cancellation Proceeding with the Trademark Trial and Appeal Board, presumably keeping that option available for negotiation purposes.

National College Resources Foundation v. The Strong Friends LLC et al. (ND 5/4/2023) – The case was reassigned to Judge Philip P. Simon on July 17, 2023. Summons were issued on August 3, 2023.

The National Registry of Emergency Medical Technicians v. Dulaney et al. (SD 5/15/2023) – A Final Judgment was entered on August 3, 2023, dismissing all claims without prejudice. The Court granted the parties’ Agreed Permanent Injunction.

Joe Hand Promotions, Inc. v. LNH, LLC d/b/a Burlington Pizza/The Barn (ND 5/24/2023) – No update this month.

DCG Indiana, Inc. v. Cardinal XLIII, LLC et al. (SD 6/19/2023) – After a flurry of motions and answers in late July, the lawsuit was remanded to Hamilton County Circuit Court on July 28, 2023. If readers are interested, we can continue to monitor the lawsuit in the Circuit Court.

Sadowski v. Restoration 1 by J&D, LLC (SD 7/12/2023) – No update this month.

Nickel and Dimes Incorporated v. Noah’s Arcade LLC et al (ND 7/25/2023) – The Defendants’ deadline to answer the Complaint has been extended by agreed notice to September 13, 2023.

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

LaPorte Video Game Arcade sued for Trademark Infringement

27 Thursday Jul 2023

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

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Common Law Unfair Competition, Cybersquatting, Damon R. Leichty, Federal Trademark Infringement, Federal Unfair Competition, Michael G. Gotsch

Full Tilt Arcade & Pinball is a video game arcade in LaPorte, Indiana. It was opened by two friends in October 2022.

Unfortunately for Full Tilt, Nickels and Dimes Incorporated of Celina, Texas, has been using the TILT trademark in connection with video game arcades since 1977. There have been over 200 “Tilt” locations nationwide and 2 in Australia. Nickels and Dimes also uses the TILT STUDIO and TILTED 10 trademarks for larger entertainment facilities.

Alleging trademark infringement, Nickels and Dimes sent a cease-and-desist letter to Full Tilt on June 22, 2023, to which Full Tilt responded that it would not comply. Undaunted, Nickels and Dimes now seeks intervention from the Federal Court for the Northern District of Indiana.

Stay tuned for updates.

Nickels and Dimes Incorporated v. Noah’s Arcade, LLC d/b/a Full Tilt et al.

Court Case Number: 3:23-cv-00699-DRL-MGG
File Date: July 25, 2023
Plaintiff: Nickel and Dimes Incorporated
Plaintiff Counsel: Jonathan G. Polak of Taft Stettinius & Hollister, LLP
Defendant: Noah’s Arcade, LLC d/b/a Full Tilt, Ben Konowitz, Ryan Hart
Cause: Federal Trademark Infringement, Federal Unfair Competition, Cybersquatting, Common Law Unfair Competition
Court: Northern District of Indiana
Judge:  Damon R. Leichty
Referred To: Michael G. Gotsch, Sr.

Complaint:

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