Category Archives: Southern District of Indiana

Mid-November 2021 Indiana Intellectual Property Litigation Update

15 Monday Nov 2021

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

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Well that month flew by! There was just one new lawsuit filed, a big battle between IU Health and Methodist Sports Medicine over use of the “Methodist” name. It was a quiet month in pending lawsuits as well, with just a few noteworthy updates. Compromise must have been in the air last month, as the status update for many pending cases is voluntary dismissal. There’s still no response from Dave Chappelle to his accuser, not that one is expected any time soon.

Noble Romans, Inc. v. Gateway Triangle Corp. et al. (SD, filed 2/5/2021) – On November 11, 2021, the “Gateway” defendants filed a Cross-Motion for Summary Judgment and response to the Noble Roman’s Motion for Summary Judgment.

Delta Faucet Company v. Iakovlev et al. (SD, filed 3/25/2021) – No update this month. 

Triple LLL Truck Repair, Inc. v. Triple LLL, Inc. et al. (ND, filed 4/26/2021) – The parties have settled and dismissal papers are due by November 19, 2021.

Energy Beverages LLC v. Full Throttle Automotive LLC (SD, filed 5/19/2021) – The lawsuit was dismissed on September 20, 2021.

Egglife Foods, Inc. v. Crepini, LLC (ND, filed 5/28/2021) – A Preliminary Pretrial Conference is scheduled for November 15, 2021.

Gatewood v. Webber Chappelle (ND, filed 6/4/2021) – No update this month.

Sears Authorized Hometown Stores, LLC v. Lynn Retails, Inc. et al. (SD, filed 6/4/2021) – A status conference was held on October 29, 2021 and a telephone status conference is schedule for February 23, 2022.

Noble Roman’s, Inc. v. AMI Stores Management, Inc. et al. (SD, filed 6/6/2021) – The parties filed a Joint Motion for a Protective Order on November 2, 2021. A final pretrial conference has been scheduled On October 12, 2023, with jury trial schedule on October 23, 2023.

Valqari LLC v. Dronedek Corporation et al. (SD, filed 6/16/2021) – A Stipulation of Dismissal was filed on October 27, 2021 and the case was dismissed the following day.

Fitzgerald et al. v. Murray et al. (SD, filed 6/18/2021) – On November 7, 2021, the Defendant Murray filed a Motion for Reconsideration of the Court’s October 20, 2021 Order.

Phoenix Intangibles Holding Company et al. v. Virk Brothers, LLC et al. (ND, filed 7/9/2021) – The deadline for parties to exchange pre-discovery disclosures was extended to November 3, 2021. No other updates.

Poulsen Roser A/S v. Gardens Alive, Inc. et al. (SD, filed 7/14/2021) – No update this month.

Haehl v. Dr. Brite, LLC (SD, filed 7/21/2021) – No update this month.

AWGI, LLC et al. v. CLD Trucking Co. d/b/a Atlas Moving Systems AMS (SD, filed 7/22/2021) – The Defendant failed to appear for another telephonic hearing on November 12, 2021. No further rulings yet by the Court.

Berman v. Auralex Acoustics, Inc. (SD, filed 7/22/2021) – The lawsuit was dismissed on October 18, 2021.

RE/MAX, LLC et al. v. Dulin et al. (SD, filed 8/24/2021) – A Second Amended Complaint was filed on October 25, 2021 and the Defendants filed their Answer and Affirmative Defenses on November 10, 2021.

Bubbles Ice Cream Parlor & Pie Shoppe, Inc. v. Scoops & Sweet Bubbles, LLC (ND, filed 8/25/2021) – A Notice of Voluntary Dismissal was filed on November 5, 2021 and the lawsuit was dismissed on November 8, 2021. The Plaintiff did file an Amended Complaint on November 3, 2021, but apparently the parties settled immediately thereafter.

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – The Pretrial Conference was held on November 3, 2021. A Scheduling Order has been issued by the Court.

Thomas v. ooShirts, Inc. et al. (SD, filed 9/24/2021) – No update this month.

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

Indiana University Health, Inc et al. v. Thomas A. Brady Sports Medicine Center, P.C. (SD, filed 11/1/2021) – No update yet.

October 2021 Updates

September 2021 Updates

August 2021 Updates

July 2021 Updates

June 2021 Updates

May 2021 Updates

April 2021 Updates

IU Health sues Methodist Sports Medicine to stop use of “Methodist” name

02 Tuesday Nov 2021

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

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For nearly 100 years, Methodist Hospital of Indiana has been operated by the plaintiff Methodist Health Group and its predecessors.

In 1990, the defendant in this lawsuit, Thomas A. Brady Sports Medicine Center, P.C., began operating a sports medicine clinic on the Methodist Hospital campus called “Methodist Sports Medicine.” The clinic has now expanded to several locations around Central Indiana.

In 1997, plaintiff IU Health took over operation of Methodist Hospital and gained the exclusive right to use and sublicense the METHODIST trademark.

Jump forward to 2019 and the Defendant has apparently decided to locate a sports medicine clinic on a Franciscan Alliance health care campus, a major competitor of plaintiff IU Health.

As a result, IU Health wants the Defendant to stop using “Methodist” in their name, and the Defendant has apparently refused to comply, hence this lawsuit.

If everything is as it seems in the Complaint (below), I’d expect an eventual rebrand from the Defendant, but it’s interesting that it took a lawsuit for a rebrand to occur. A new home with a new hospital group surely calls for a brand refresh/update? Especially if you’re just a sublicensee of your original name. Either way, things are rarely exactly as a Complaint makes them seem. Stay tuned for the Defendant’s side of the story.

Indiana University Health, Inc et al. v. Thomas A. Brady Sports Medicine Center, P.C.

Case Number: 1:21-cv-02760-JMS-MJD
File Date: November 1, 2021
Plaintiff: Indiana University Health, Inc., Methodist Health Group, Inc.
Plaintiff Counsel: Louis T. Perry, Elizabeth A. Charles of Faegre Drinker Biddle & Reath LLP
Defendant: Thomas A. Brady Sports Medicine Center, P.C.
Cause: False Designation of Origin, Common Law Unfair Competition, Deception, Indiana Crime Victim’s Relief Act
Court: Southern District of Indiana
Judge: Jane Magnus-Stinson
Referred To: Mark J. Dinsmore

Complaint:

Mid-October 2021 Indiana Intellectual Property Litigation Update

15 Friday Oct 2021

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

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Fall is here! Only two (one trademark, one copyright) lawsuits were filed in Indiana in the last month, but there’s been plenty of action in the existing cases. Dave Chappelle’s “failed comedian” plaintiff has returned with Proof of Service and a Motion for Default Judgment. One plaintiff has filed a Motion for Contempt against a non-responsive defendant after continued infringement following a Default Judgment. Another trademark plaintiff faces a Motion to Dismiss their federal claims based on a lack of interstate commerce. Interesting stuff ahead, so read on and stay tuned for next month’s updates.

Noble Romans, Inc. v. Gateway Triangle Corp. et al. (SD, filed 2/5/2021) – The Defendants have been granted until November 11, 2021 to file their response to the Plaintiff’s Motion for Summary Judgment.

Watch Communications v. Jarman et al. (SD, filed 3/8/2021) – The lawsuit was dismissed with prejudice on October 12, 2021.

Delta Faucet Company v. Iakovlev et al. (SD, filed 3/25/2021) – No update this month.

ABI Attachments, Inc. v. Kiser Arena Specialists, Inc. et al. (SD, filed 4/12/2021) – This lawsuit was dismissed with prejudice on October 6, 2021 via a joint motion.

Triple LLL Truck Repair, Inc. v. Triple LLL, Inc. et al. (ND, filed 4/26/2021) – No update this month.

Energy Beverages LLC v. Full Throttle Automotive LLC (SD, filed 5/19/2021) – A Stipulation of Dismissal was filed on September 8, 2021 and simply awaits formal dismissal by the Court. 

Egglife Foods, Inc. v. Crepini, LLC (ND, filed 5/28/2021) – The Defendant’s Answer was filed on October 12, 2021.

Gatewood v. Webber Chappelle (ND, filed 6/4/2021) – This case looked set for a dismissal based on failure to serve process but the Plaintiff filed a Proof of Service on September 28, 2021 and filed a Motion for Default Judgment on October 5, 2021. We now at least have a better idea what the “joke” was that Dave Chappelle allegedly “stole”…it’s at minute mark 21:23 until 22:15 in Chappelle’s “Heart of Texas” comedy special. The original Complaint said the stolen joke was “exactly one minute” so there is some discrepancy between the Plaintiff’s documents.

Sears Authorized Hometown Stores, LLC v. Lynn Retails, Inc. et al. (SD, filed 6/4/2021) – No update this month.

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

Valqari LLC v. Dronedek Corporation et al. (SD, filed 6/16/2021) – The parties have reported settlement. The Court has worded the Plaintiff to file dismissal documents by October 29, 2021.

Fitzgerald et al. v. Murray et al. (SD, filed 6/18/2021) – The Plaintiffs filed a Motion to Compel Discovery Responses on September 17, 2021 and the Defendant Murray filed a Motion to Strike the following day. A default judgment was entered against the Defendant Beacon Books on October 1, 2021 for failure to respond. A Reply for the Motion to Compel was filed by Plaintiff on October 4, 2021 and the Defendants filed their Answer to Interrogatories on October 4, 2021.

Phoenix Intangibles Holding Company et al. v. Virk Brothers, LLC et al. (ND, filed 7/9/2021) – No update this month.

Poulsen Roser A/S v. Gardens Alive, Inc. et al. (SD, filed 7/14/2021) – The parties have a telephone status conference set for November 15, 2021.

Haehl v. Dr. Brite, LLC (SD, filed 7/21/2021) – The Defendant filed an Answer on September 28, 2021. Defense counsel is John R. Terpstra and Anna Mandula of Lewis Brisbois Bisgaard & Smith LLP.

AWGI, LLC et al. v. CLD Trucking Co. d/b/a Atlas Moving Systems AMS (SD, filed 7/22/2021) – The Defendant failed to appear for a telephonic default judgment hearing on September 28, 2021 and judgment was entered for the Plaintiff. The default judgment apparently did not deter the Defendant from continuing its infringing activities, and a Motion for Contempt was filed by the Plaintiff on October 13, 2021.

Berman v. Auralex Acoustics, Inc. (SD, filed 7/22/2021) – Despite a purported settlement, dismissal documents were not filed by the Court’s deadline of October 8, 2021.

RE/MAX, LLC et al. v. Dulin et al. (SD, filed 8/24/2021) – An Amended Complaint was filed on September 16, 2021. No other updates.

Bubbles Ice Cream Parlor & Pie Shoppe, Inc. v. Scoops & Sweet Bubbles, LLC (ND, filed 8/25/2021) – The Defendant filed a Motion to Dismiss for failure to state a claim (based on lack of interstate commerce) and lack of supplemental jurisdiction.

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – An Answer was filed on September 21, 2021 and the following Amended Answer was filed on October 12, 2021. A Pretrial Conference is scheduled for November 3, 2021 before the Court. (Could this signal an end to almost two years of telephonic court conferences?)

Thomas v. ooShirts, Inc. et al. (SD, filed 9/24/2021) – No update yet.

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

September 2021 Updates

August 2021 Updates

July 2021 Updates

June 2021 Updates

May 2021 Updates

April 2021 Updates

Trademark Infringement Lawsuit filed over Branded IT Training Videos

13 Wednesday Oct 2021

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

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This is one of those trademark lawsuits that really isn’t about the trademarks. The subject matter is IT training videos, which you’d more typically find as the subject of a copyright lawsuit. As you’ll see, savvy branding of those videos has allowed the Plaintiff to bring this as a trademark lawsuit, with all the accompanying trademark remedies and none of the formal requirements of a copyright lawsuit.

The Plaintiff, ITPro.TV, makes IT training videos. Importantly, the training videos display the Plaintiff’s logo in the bottom left of the screen.

The Defendants, Hope Training Academy and their individual owners, operate a computer-based training academy in Carmel, Indiana that offers various computer certifications to underemployed adults. Allegedly, the Defendants have been showing Plaintiff’s branded training videos without authorization and, to add injury to insult, they also insert their own “Hope Training Academy” logo on the bottom right of the video.

The parties were engaged in seemingly fruitful settlement negotiations as late as August 2021, with the Defendants offering to make a nominal payment of $29.99 per infringing end user, an unacceptably low fee by the Plaintiff’s calculations. The Defendants also represented that they are no longer using the Plaintiff’s videos but those assertions have not been independently verified by the Plaintiff. Presumably the Plaintiff’s patience with the negotiations simply ran out and they now seek the wisdom (and coercive power) of the Court.

Stay tuned for updates.

Edutainment Live, LLC v. Video Game Palooza et al

Case Number: 1:21-cv-02611-JMS-DML
File Date: Monday, October 11, 2021
Plaintiff: Edutainment Live, LLC d/b/a ITPRo. TV
Plaintiff Counsel: Donald E. Lake III of Lewis Brisbois Bisgaard & Smith LLP
Defendant: Video Game Palooza d/b/a Hope Training Academy, Richard Barretto, Cara Barretto
Cause: Federal Trademark Infringement, Federal Unfair Competition, Common Law Unfair Competition
Court: Southern District of Indiana
Judge: Jane Magnus-Stinson
Referred To: Debra McVicker Lynch

Complaint:

Painter sues T-Shirt Printing Website for Unauthorized Use of Presidential Painting

27 Monday Sep 2021

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

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This copyright lawsuit involves a painter attempting to stop an online merchandise platform from using his artwork on customizable products. The Defendant t-shirt website, like thousands of other sites, sells blank apparel that can be customized with a user-uploaded image or text.

Per the Complaint (below), the John Doe defendants (1-11) have, via separate registered accounts, been uploading a digital copy of one of Plaintiff’s paintings since 2018 and using the online platform to create unauthorized products which they presumably then sell elsewhere. Plaintiff’s counsel first contacted the Defendant website in April 2020 about the unauthorized use of Plaintiff’s artwork, seemingly with no acceptable resolution or cessation.

In lawsuits such as this with numerous John Doe defendants, the first and most difficult hurdle for the Plaintiff will be to discover the identity of the John Does. The similarity in the John Doe’s account names on the t-shirt platform seem to indicate that it’s just one source (an individual or small group) that is repeatedly ordering new product. I wouldn’t expect any response to be filed by the John Doe Defendants, who will likely disappear altogether, and probably a long road of discovery for the Plaintiff perhaps eventually leading to a default judgment against the determined “guilty” party.

The vicarious infringement and contributory infringement claims against the online t-shirt website will be interesting to follow. Presumably, having been put on notice of the unauthorized use in April 2020, the t-shirt website might be expected to take more action to prevent future infringements of the same image. But how closely do they (or should they be expected to) patrol user-submitted images for infringement? It seems like the t-shirt printing and shipping process would be almost completely automated following the user submission, with no copyright verification step in between.

Stay tuned for updates.

Thomas v. ooShirts, Inc. et al.

Case Number: 1:21-cv-02519-TWP-MJD
File Date: Friday, September 24, 2021
Plaintiff: Andrew “Andy” Thomas
Plaintiff Counsel: Sean J. Quinn of SouthBank Legal: LaDue | Curran | Kuehn, Oliver Maguire of Evans & Dixon, LLC
Defendant: ooShirts, Inc., John Does 1-11
Cause: Direct Copyright Infringement, Vicarious Infringement, Contributory Infringement
Court: Southern District of Indiana
Judge: Tanya Walton Pratt
Referred To: Mark J. Dinsmore

Complaint: