Category Archives: Southern District of Indiana

Muncie Fire Captain sued over EMT Exam Cheating Scheme

18 Thursday May 2023

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

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Here’s a lawsuit straight out of Bayside High School. The lawsuit involves a Muncie, Indiana Fire Captain who allegedly has been providing test questions to individuals before they take their tests. The problem is these aren’t 9th grade English tests, but rather important emergency medical technician (EMT) examinations, meaning unqualified cheaters could be made responsible for saving the lives of the public. This is unfair to everyone, including the creators of the test, who have to rewrite the compromised examinations, and unqualified EMTs, who are advanced to a position where they might not be able to properly carry out their duties. It is most unfair to the endangered public, who could receive unqualified medical treatment and possibly die as a result.

The National Registry of Emergency Medical Technicians (NREMT), which creates the EMT examinations, is now suing the Fire Captain, along with two accomplice test memorizers, for copyright infringement, breach of contract, and trade secret claims. The two test memorizers would allegedly take the examinations, memorize the questions, and then report back to the Fire Captain, who would use that information to train fire department recruits. The test policies specifically forbid such actions.

The “years-long scheme” was reported by a whistleblower in March 2023, leading to an investigation and now this lawsuit. The whistleblower paints a portrait of more than just an overzealous instructor, claiming that the Fire Captain forced his employees to cheat on NREMT examinations “through abuse of power and harassment.”

Stay tuned for updates.

The National Registry of Emergency Medical Technicians v. Dulaney et al.

Court Case Number: 1:23-cv-00840-JRS-MJD
File Date: May 15, 2023
Plaintiff: The National Registry of Emergency Medical Technicians
Plaintiff Counsel: Kandi Kilkelly Hidde, Cameron S. Trachtman of Frost Brown Todd LLP
Defendant: Troy Delaney, Jacob Sutton, Adam Burk
Cause: Copyright Infringement, Breach of Contract, Violation of the Indiana Uniform Trade Secrets Act, Violation of the Defend Trade Secrets Act
Court: Southern District of Indiana
Judge: James R. Sweeney II
Referred To: Mark J. Dinsmore

Complaint:

May 2023 Indiana Intellectual Property Litigation Update

15 Monday May 2023

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

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There were several interesting filings in intellectual property litigation in Indiana over the last month. Just one new lawsuit was filed and several lawsuits were dismissed, so we may have a shorter list next month for a change. Read on for updates on all pending Indiana trademark and copyright litigation.

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 June 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 May 4, 2023, the Defendant filed several documents, including a Response Brief in Opposition to Plaintiff’s Partial Motion for Summary Judgment, a Response to Statement of Material Facts, and Additional Material Facts. The submitted information gives much more context to the dispute.

Thomas v. ooShirts, Inc. et al. (SD, filed 9/24/2021) – A telephonic status conference was held on May 3, 2023 to discuss discovery status and another is scheduled for June 1, 2023. 

Gabet et al. v. Amazon.com. Inc. et al. (ND, filed 1/20/2022) – On May 8, 2023, the Plaintiff filed Motion for Leave to File a Second Amended Complaint. Amazon promptly challenged with a Motion to Strike, claiming “gamesmanship” by the Plaintiff’s attorney, along with failure to comply with the Court’s electronic filing policies, which prohibit converting a usable electronic document into an unusable version and then filing the unusable version. Amazon has requested monetary sanctions against the Plaintiff’s attorney.

The Evolutionary Level Above Human, Inc. v. Havel et al (ND, filed 5/18/2022) – On April 27, 2023, Defendant Bartel filed a Motion to Add Evidence Regarding the True and Factual ‘Known Place of Business’ of Plaintiff. The Plaintiff filed its Response on May 12, 2023.

Schwartz v. Kilroy’s North America, LLC et al (SD, filed 8/5/2022) – The lawsuit was dismissed with prejudice on April 18, 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. 

Phoenix USA RV, Inc. v. Hoosier Custom Cruisers LLC et al. (ND, removed 10/7/2022) – The lawsuit was dismissed with prejudice on May 3, 2023.

MaddenCo Inc. v. Reed et al. (SD, filed 10/31/2022) – A Settlement Conference was held on May 5, 2023. The parties have been ordered to provide an update on settlement discussions by May 22, 2023, and every 14 days thereafter.

The Center for Gestalt Development, Inc. v. Bowman (SD (11/09/2022) – Witness lists were filed by both parties, but no other updates this month.

1.4G Holdings, LLC v. North Central Industries, Inc. et al. (SD 1/05/2023) – On May 5, 2023, the parties filed a Joint Motion for Protective Order. The Plaintiff files its Preliminary Witness and Exhibits Lists on May 12, 2023.

Stross v. Lynn Boolman Auto Sales Limited Liability Company et al. (ND 1/25/2023) –  Defendant Carsforsale.com filed its Answer on April 20, 2023. The Answer includes just one affirmative defense, that any alleged infringement on the part of Carsforsale.com was innocent and without intention.

A Preliminary Pretrial Conference is scheduled for May 23, 2023.

Albert’s Diamond Jewelers, Inc. v. AaLand Diamond Jewelers LLC (ND 2/01/2023) – On May 4, the Court granted a Stipulated Protective Order.

Delta Faucet Company v. Watkins et al. (SD 2/01/2023) – On April 18, 2023, Delta Faucet filed a Renewed Motion for Alternative Service of Process, which the Court granted on April 26, 2023. Delta Faucet can now serve the Defendant Watkins via electronic means.

USA Football, Inc. v. Flag Football World Championship Tour, LLC et al. (SD 2/13/2023) – On May 3, 2023, the case was reassigned to Magistrate Judge M. Kendra Klump. The new case number is 1:23-cv-00274-TWP-MKK. The Defendant’s time to answer the Complaint has been extended by motion to May 22, 2023.

Freedom Mortgage Corporation v. Freedompoint, LLC (SD 2/14/2023) – The lawsuit has been settled and was dismissed with prejudice on May 11, 2023.

Roller Ready, LLC v. LA Systems, LLC d/b/a Monkey Rung et al. (ND 2/14/2023) – Summons were issued on May 8, 2023. No other updates.

Taylor Shaye Designs LLC v. Shein Distribution Corp. (SD 4/11/2023) – Defense counsel have filed their appearances and a notice of extension of the response deadline.

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

Sak Group, Inc. v. Blue Hill Hospitality, Inc. (ND 4/25/2023) – No update yet.

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

December 2022 Updates –  December 2021 Updates

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

Trademark Owner Successfully Overcomes USPTO 2(d) Refusal but Still Gets Sued

17 Monday Apr 2023

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

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This lawsuit highlights an awkward but common situation where a senior trademark owner and the USPTO disagree on whether a likelihood of confusion exists between two trademarks. If a junior user’s trademark is allowed to be registered by the USPTO, sometimes a senior user has no option but to bring a federal lawsuit and/or a TTAB cancellation proceeding.

HealthSmart Foods, an Evansville, Indiana-based producer of health food snacks (e.g. snack bars, snack bites, shakes, and candies) has filed a trademark lawsuit against Sweet Nothings, a small California company selling healthy family snacks like packaged smoothies and “nut butter bites.”

HealthSmart Foods sells a line of snack clusters, crisps and patties called SWEET NOTHINGS.

Sweet Nothings has obtained a trademark registration for its SWEET NOTHINGS trademark after successfully overcoming a 2(d) likelihood of confusion refusal citing the HealthSmart Foods’ trademark registration. The 2(d) refusal was seemingly overcome with evidence that the “SWEET NOTHINGS” trademark is very highly suggestive of the type of goods and therefore entitled to a very narrow scope of protection. Specifically, the evidence consisted of fourteen examples of entities in HealthSmart’s industry who use the marks “SWEET NOTHINGS” or “SWEET NOTHING” as a source indicator in connection with goods and services legally identical to HealthSmart’s goods:

  • Sweet Nothing Desserts, LLC – Located in Georgia, they bake cakes and cookies to order
  • Sweet Nothing Fine Cakes and Desserts – Located in Wisconsin, they bake high quality
  • cakes
  • Sweet Nothings Cake Shop – Located in Southern California, they offer a variety of
  • baked goods
  • Sweet Nothings Cakes – Located in Wisconsin, they bake cakes for special occasions
  • Sweet Nothings – Located in Ohio, they offer a variety of snacks
  • Sweet Nothings Cookies – Located in Arkansas, they offer custom cookies
  • Sweet Nothings Custom Cookies – Located in North Carolina, they offer custom cookies
  • Luv Ice Cream – Located in Minnesota, they offer “Sweet Nothings” branded fruit and
  • candy
  • Sweet Nothings – Located in New Jersey, they offer a variety of chocolates and candy
  • Sweet Nothings Snacks – Located in Utah, they offer a variety of snacks
  • Sweet Nothings – a brand of nougat cluster candy offered by Healthsmart, located in Indiana
  • Krissy’s Sweet Nothings – an online business that offers cakes
  • Sweet Nothings & Pastries – Located in Texas, they offer a variety of cupcakes and cakes
  • Sweet Nothings Cakes and Confections – Located in Missouri, they offer a variety of
  • cupcakes, cakes, pastries, and pies

HealthSmart Foods clearly does not agree with the USPTO’s decision to register Sweet Nothings’ trademark and now seeks the intervention of the Southern District of Indiana. I’d expect a similar “very highly suggestive” and “narrow scope of protection” defense to be presented, arguing that the Indiana company simply doesn’t have a strong enough trademark to enforce. Based on the location of the defendant (California), we might also see some preliminary jurisdictional challenges. Or, if the defendant doesn’t have the stomach for a legal fight in federal court in Indiana, a quick name change could be a potential outcome.

Stay tuned for updates.

HealthSmart Foods, Inc. v. Sweet Nothings, Inc. et al.

Court Case Number: 3:23-cv-00060
File Date: April 13, 2023
Plaintiff: HealthSmart Foods, Inc.
Plaintiff Counsel: Joshua A. Claybourn of Jackson Kelly PLLC
Defendant: Beth Porter, Sweet Nothings, Inc.
Cause: Federal Trademark Infringement, Federal Unfair Competition, Federal Trademark Dilution, Unfair and Deceptive Trade Practices, Common Law Trademark Infringement, Common Law Unfair Competition, State Trademark Dilution, Injury to Business Reputation
Court: Southern District of Indiana
Judge: Matthew P. Brookman
Referred To: Mark J. Dinsmore

Complaint:

Knockoff Chinese Jewelry prompts Indiana Copyright Lawsuit

12 Wednesday Apr 2023

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

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An Indiana copyright lawsuit has been filed by Taylor Shaye Designs, a jewelry designer and retailer/wholesaler from Louisiana.

The defendant, located in Whitestown, Indiana, is the apparent U.S. sales and distribution arm of the global Shein conglomerate, a Chinese online fast fashion retailer that is known for selling inexpensive apparel, jewelry, and other accessories.

The defendant is accused of copying the plaintiff’s registered “Let’s Go Girls” jewelry design.

The standard for determining whether the reproduction right in a copyrighted work has been infringed is “substantial similarity.” Blog readers can judge for themselves whether the above designs have substantial similarity. Hopefully the lawsuit will see an argument that the designs are not substantially similar but I anticipate either a jurisdictional challenge or a discrete settlement as the most likely outcomes. Either way, stay tuned to this blog for updates.

Taylor Shaye Designs LLC v. Shein Distribution Corp.

Court Case Number: 1:23-cv-00624-SEB-TAB
File Date: April 11, 2023
Plaintiff: Taylor Shaye Designs LLC
Plaintiff Counsel: Bradley M. Stohry of Reichel Story Dean LLP
Defendant: Shein Distribution Corp.
Cause: Direct Copyright Infringement, Vicarious Copyright Infringement
Court: Southern District of Indiana
Judge: Sarah Evans Barker
Referred To: Tim A. Baker

Complaint: