Category Archives: Northern District of Indiana

April 2023 Indiana Intellectual Property Litigation Update

18 Tuesday Apr 2023

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

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Spring is here! Only two new lawsuits were filed since last month but there were many developments in pending Indiana intellectual property litigation. Several fully-briefed motions have receiving a court ruling, including one defendant successfully winning a motion to dismiss for lack of personal jurisdiction. One lawsuit saw an unusual request to file a “surreply,” which was immediately challenged by the opposing party. BMI received a summary judgment of $28,000 over 4 songs played on a roadhouse jukebox. We don’t know why the roadhouse chose not to defend itself, or attempt settlement as is customary, but surely it would have paid far less for the standard BMI license.

Here are some of the more interesting trademark and copyright litigation filings from the last month:

Sears Authorized Hometown Stores, LLC v. Lynn Retail, Inc. et al. (SD, filed 6/4/2021) – The settlement deadline has been extended by motion to April 26, 2023.

Noble Roman’s, Inc. v. AMI Stores Management, Inc. et al. (SD, filed 6/6/2021) –  No update this month.

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – On March 30, 2023, Forest River filed a Motion for Partial Summary Judgement for its trademark infringement and unfair competition claims.

The Motion for Partial Summary Judgment was accompanied by a Motion to Seal Documents, to which inTech filed a Response on April 13, 2023, expressly reserving opposition to inclusion of portions of an Asset Purchase Agreement among the sealed documents.

Thomas v. ooShirts, Inc. et al. (SD, filed 9/24/2021) – A telephonic status conference was held on April 5, 2023 to discuss discovery status and another is scheduled for May 5, 2023.

Edutainment Live, LLC v. Video Game Palooza et al. (SD, filed 10/11/2021) –On April 17, 2023, the Court entered an order granting a permanent injunction against the defendants and dismissal of the lawsuit with prejudice.

Gabet et al. v. Amazon.com. Inc. et al. (ND, filed 1/20/2022) – The parties have a status conference scheduled for May 5, 2023.  

The Evolutionary Level Above Human, Inc. v. Havel et al (ND, filed 5/18/2022) – There were a number of motions and responses filed over the last month, including the Plaintiff’s response to one of the individual defendants’ request to file a “Surreply.”

Broadcast Music, Inc. et al v. Thirty-Six Saloon, LLC d/b/a Thirty Six Saloon et al. (SD, filed 7/27/2022) – On April 13, 2023, a Default Judgment was entered against the Defendants for $28,378. This amount is likely significantly higher than the Rockville, Indiana roadhouse would have paid for a standard BMI jukebox license, but the roadhouse apparently opted to take no action in the lawsuit.

Schwartz v. Kilroy’s North America, LLC et al (SD, filed 8/5/2022) – On April 13, 2023, a Joint Stipulation of Dismissal was filed.

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.

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 April 13, 2023, the Court granted Defendant HG Autotech’s Motion to Dismiss for Lack of Personal Jurisdiction.

The Center for Gestalt Development, Inc. v. Bowman (SD (11/09/2022) – The Court approved a Case Management Plan on April 4, 2023. Discovery is due by August 7, 2023 and dispositive motions are due by October 2, 2023.

1.4G Holdings, LLC v. North Central Industries, Inc. et al. (SD 1/05/2023) – Defendant Brown’s Motion to Dismiss is now fully-briefed as of March 21, 2023. A pretrial conference was held on April 13, 2023. Discovery is due by November 3, 2023 and dispositive motions are due by January 5, 2024.

Stross v. Lynn Boolman Auto Sales Limited Liability Company et al. (ND 1/25/2023) –  Defendant Lynn Boolman Auto Sales filed its Answer on March 28, 2023. The response deadline for Defendant Carsforsale.com has been extended to April 20, 2023.

Albert’s Diamond Jewelers, Inc. v. AaLand Diamond Jewelers LLC (ND 2/01/2023) – Defendant AaLand filed its Answer on March 15, 2023. A telephonic conference was held on April 6, 2023.

Delta Faucet Company v. Watkins et al. (SD 2/01/2023) – On March 27, 2023, the Court denied (without prejudice) Delta Faucet Company’s Motion for Alternative Service of Process. Delta’s counsel will need to try a new strategy to serve the Complaint on the hard-to-find Defendant.

USA Football, Inc. v. Flag Football World Championship Tour, LLC et al. (SD 2/13/2023) – No update this month.

Freedom Mortgage Corporation v. Freedompoint, LLC (SD 2/14/2023) – The Defendant’s response deadline has been extended to May 8, 2023.

Roller Ready, LLC v. LA Systems, LLC d/b/a Monkey Rung et al. (ND 2/14/2023) – No update yet.

Taylor Shaye Designs LLC v. Shein Distribution Corp. (SD 4/11/2023) – No update yet.

HealthSmart Foods, Inc. v. Sweet Nothings, Inc. et al. (SD 4/13/2023) – No update yet.

March 2023 Updates – February 2023 Updates – January 2023 Updates

December 2022 Updates –  December 2021 Updates

March 2023 Indiana Intellectual Property Litigation Update

15 Wednesday Mar 2023

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

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February was a very quiet month in Indiana intellectual property litigation. A few parties filed a Motion to Dismiss in an attempt to avoid litigation in Indiana, but there are no rulings yet. A few settlement conferences were reported as successful, so we can expect a few more cases to be dismissed by next month. Stay tuned for updates on all ongoing copyright and trademark lawsuits.

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

Noble Roman’s, Inc. v. AMI Stores Management, Inc. et al. (SD, filed 6/6/2021) –  A settlement conference was held on February 21, 2023, apparently with no success, as the Court opines “it does not appear that another settlement conference at this time would be productive.” On March 3, 2023, Noble Roman’s filed its Reply Brief for its Motion for Partial Summary Judgment.

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – On February 22, 2023, a hearing was held on the Defendant’s Motion to Compel. The Court ruled on March 10, 2023 that the Plaintiff must produce an unredacted document. On March 14, the parties filed a joint motion to continue dispositive motion deadlines.

Thomas v. ooShirts, Inc. et al. (SD, filed 9/24/2021) – A new attorney, Lenny Huang, has appeared on behalf of the Defendants and the original attorneys have withdrawn.

Edutainment Live, LLC v. Video Game Palooza et al. (SD, filed 10/11/2021) – A Notice of Settlement was filed on March 2, 2023 and the Court has ordered dismissal documents to be filed within 30 days.

Gabet et al. v. Amazon.com. Inc. et al. (ND, filed 1/20/2022) – A discovery conference was held on February 27, 2023.

The Evolutionary Level Above Human, Inc. v. Havel et al (ND, filed 5/18/2022) –  More motions were filed in the last month, including a successful Motion to Strike filed by the Plaintiff.

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) – The parties held a successful Settlement Conference on March 14, 2023. The Court has ordered the filing of dismissal documents within 30 days.

Oakley, Inc. v. Batter’s Box Training, LLC et al (SD, filed 8/11/2022) – The parties held a successful Settlement Conference on March 2, 2023. The Court has ordered the filing of dismissal documents by March 15, 2024.

Honest Abe Roofing franchise, Inc. v. DCH & Associates, LLC et al. (SD, filed 9/7/2022) –  The Plaintiff filed a Motion for Default Judgment on February 28, 2023.

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) – The Defendant HG Autotech had attorneys appear on February 22, 2022 who promptly filed a Motion to Dismiss on the same day and then a Motion to Withdraw two days later on February 24, 2022. Defendant Darby’s Motion to Dismiss is now fully-briefed.

The Center for Gestalt Development, Inc. v. Bowman (SD (11/09/2022) – A Telephonic Initial Pretrial Conference is scheduled for April 3, 2023.

1.4G Holdings, LLC v. North Central Industries, Inc. et al. (SD 1/05/2023) – On February 28, 2023, Defendant Brown filed a Motion to Dismiss.

The Plaintiff’s Response was filed on March 14, 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) – The deadline for Defendant’s responsive pleading was extended to March 16, 2023. A telephonic pretrial conference is scheduled for April 6, 2023.

Delta Faucet Company v. Watkins et al. (SD 2/01/2023) – On February 27, 2023, Delta Faucet Company filed a Motion for Alternative Service of Process.

USA Football, Inc. v. Flag Football World Championship Tour, LLC et al. (SD 2/13/2023) – The Defendants have waived service of the Complaint. No other updates yet.

Freedom Mortgage Corporation v. Freedompoint, LLC (SD 2/14/2023) – Alyssa C.B. Cochran has appeared on behalf of Freedompoint. The deadline to respond to the Complaint has been extended to April 6, 2023.

Roller Ready, LLC v. LA Systems, LLC d/b/a Monkey Rung et al. (ND 2/14/2023) – No update yet.

February 2023 Updates – January 2023 Updates

December 2022 Updates –  December 2021 Updates

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: