Category Archives: Southern District of Indiana

RE/MAX sues Realtor Franchisee for Competing Against His Own Franchises

25 Wednesday Aug 2021

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

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Apparently all the intellectual property litigators in Indiana took nice long summer vacations, as this is the first new IP lawsuit filed in over two months (since July 22, 2021). After the long wait, the lawsuit we get is mostly about the breakdown of a 10-year franchise relationship.

The Plaintiff is RE/MAX, a global franchisor of real estate brokerage services.

The Defendant is a franchisee accused of numerous violations of the franchise agreement, including actively competing against his own franchises, sending sales associates to a competitor, and enabling competing agents to operate out of RE/MAX locations.

These franchise lawsuits always have two sides, so it’s typically a good idea to read both the Complaint and the Defendant’s Answer for a better picture of how a 10-year franchise relationship breaks down to the point of a lawsuit. Stay tuned for updates.

RE/MAX, LLC et al v. Dulin et al.

Case Number: 1:21-cv-02321-TWP-TAB
File Date: Tuesday, August 24, 2021
Plaintiff: RE/MAX, LLC, RE/MAX Integrated Regions, LLC
Plaintiff Counsel: Lucy Dollens of Quarles & Brady LLP, Kathryn A. Reilly, Thomas A. Olsen, Chuan (CiCi) Cheng of Wheeler Trigg O’Donnell LLP
Defendant: James E. Dulin II, The Hamilton Group, Inc.
Cause: Breach of Contract, Federal Trademark Infringement, Unfair Competition, Declaratory Relief
Court: Southern District of Indiana
Judge: Tanya Walton Pratt
Referred To: Tim A. Baker

Complaint:

Mid-August 2021 Indiana Intellectual Property Litigation Update

16 Monday Aug 2021

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

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Summer is winding down but several Indiana trademark and copyright lawsuits are just heating up. A few cases were dismissed since last month’s update and there are only a few documents worth highlighting this month. However, with numerous pretrial or settlement conferences scheduled in the next few weeks, there should be plenty to report in next month’s update. For now, here are the mid-August 2021 Indiana Intellectual Property Litigation updates:

Noble Romans, Inc. v. Gateway Triangle Corp. et al. (SD, filed 2/5/2021) – On August 12, the parties filed their respective Statement of Claims (below) and a telephonic Settlement Conference is scheduled for August 20, 2021.

Watch Communications v. Jarman et al. (SD, filed 3/8/2021) – On August 10, 2021, the National Farmers Union Property & Casualty Company, an insurance, has filed a motion to intervene to determine its rights and responsibilities to the Plaintiff under a liability insurance policy.

La Michoacana Meat Market TM Holdings, LLC v. Galan et al. (ND, filed 3/9/2021) – A Notice of Voluntary Dismissal was filed on July 29, 2021 and the lawsuit was dismissed with prejudice on August 3, 2021.

Vroom, Inc. v. Midwest Motors LLC et al. (SD, filed 3/24/2021) – The parties have settled and have been granted until August 27, 2021 to file the appropriate dismissal papers.

Delta Faucet Company v. Iakovlev et al. (SD, filed 3/25/2021) – A Protective Order was issued on August 5, 2021 regarding the use and disclosure of discovery produced by nonparty Amazon.

ABI Attachments, Inc. v. Kiser Arena Specialists, Inc. et al. (SD, filed 4/12/2021) – On August 12, 2021, the Plaintiff filed a Motion to Stay all deadlines until the next status conference. This is likely an indication that settlement is close.

Triple LLL Truck Repair, Inc. v. Triple LLL, Inc. et al. (ND, filed 4/26/2021) – Nothing to report.

Energy Beverages LLC v. Full Throttle Automotive LLC (SD, filed 5/19/2021) – A settlement has been reached. On July 28, 2021, the Court ordered that dismissal documents be filed within 28 days.

Monster Energy Company v. R&R Medical, LLC d/b/a Bear KompleX (ND, filed 5/26/2021) – The Defendant’s response deadline has been extended to August 30, 2021.

Egglife Foods, Inc. v. Crepini, LLC (ND, filed 5/28/2021) – The Defendant’s counsel, John A. Conway, filed an appearance on August 13, 2021. Nothing else to report.

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

Sears Authorized Hometown Stores, LLC v. Lynn Retails, Inc. et al. (SD, filed 6/4/2021) – An initial pretrial conference is set for August 18, 2021.

Noble Roman’s, Inc. v. AMI Stores Management, Inc. et al. (SD, filed 6/6/2021) – A settlement conference is scheduled on November 10, 2021.

Valqari LLC v. Dronedek Corporation et al. (SD, filed 6/16/2021) – An initial pretrial conference is set for September 30, 2021.

Fitzgerald et al. v. Murray et al. (SD, filed 6/18/2021) – The Defendant Beacon Books filed a Motion to Dismiss on July 26, 2021, but it was stricken by the Court because it was filed by the Defendant’s Director rather than counsel (a requirement for corporations). Beacon Books filed a document on August 11, 2021 requesting to be assigned a state attorney.

Phoenix Intangibles Holding Company et al. v. Virk Brothers, LLC et al. (ND, filed 7/9/2021) – A telephonic Rule 16 Preliminary Pretrial Conference is scheduled for September 2, 2021.

Poulsen Roser A/S v. Gardens Alive, Inc. et al. (SD, filed 7/14/2021) – An initial pretrial conference is schedule for September 9, 2021.

Haehl v. Dr. Brite, LLC (SD, filed 7/21/2021) – An Affidavit of Service was filed on July 29, 2021. No activity yet by Defendant.

AWGI, LLC et al. v. CLD Trucking Co. d/b/a Atlas Moving Systems AMS (SD, filed 7/22/2021) – An Affidavit of Service was filed on August 4, 2021. No activity yet by Defendant.

Berman v. Auralex Acoustics, Inc. (SD, filed 7/22/2021) – An Affidavit of Service was filed on July 28, 2021. No activity yet by Defendant.

July 2021 Updates

June 2021 Updates

May 2021 Updates

April 2021 Updates

Ray Luzier Photograph Copyright Lawsuit Filed in Southern District of Indiana

28 Wednesday Jul 2021

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

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The plaintiff in this copyright infringement lawsuit is a professional photographer from Nashville, Tennessee. In March 2019, the plaintiff took a photograph of Ray Luzier, drummer for the band Korn. The photograph was immediately registered with the U.S. Copyright Office.

The Defendant, which sells acoustical products from Indianapolis, Indiana, allegedly used the plaintiff’s photograph on its website without authorization, on a page about “famous users” of the Defendant’s products. The photograph was also allegedly posted on the Defendant’s Facebook and Instagram accounts.

Stay tuned for updates.

Berman v. Auralex Acoustics, Inc.

Case Number: 1:21-cv-02090-JMS-TAB
File Date: Thursday, July 22, 2021
Plaintiff: Sayre Berman
Plaintiff Counsel: Craig B. Sanders, Esq. of Barshay Sanders, PLLC
Defendant: Auralex Acoustics, Inc.
Cause: Direct Copyright Infringement, Falsification, Removal and Alteration of Copyright Management Information
Court: Southern District of Indiana
Judge: Jane Magnus-Stinson
Referred To: Tim A. Baker

Complaint:

Atlas Van Lines sues Atlas Moving Systems for Trademark Infringement, Unfair Competition

27 Tuesday Jul 2021

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

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The Plaintiffs in this trademark lawsuit, Atlas Van Lines of Evansville, Indiana, have been transporting goods under the name “Atlas” since 1948. The Atlas family of companies includes more than 430 independent Atlas agencies across the U.S. and Canada, plus authorized partners in 140 countries.

The Defendant is alleged to have offered its moving services to the public since 2015 under the fictitious business name “Atlas Moving Systems AMS,” constituting trademark infringement and unfair competition.

The Plaintiffs first sent a cease-and-desist letter to the Defendants in September 2017. A follow-up letter was sent in November 2020, over three (3) years later. There is no explanation given in the Complaint (below) for the lengthy delay by Plaintiffs in enforcing their trademark rights. However, a Motion for Preliminary Injunction has also been filed along with the Complaint so they’ve clearly determined that they can now no longer abide the Defendants’ ongoing presence in the marketplace. The supporting Memorandum (below) documents instances of actual consumer confusion.

Stay tuned for updates.

AWGI, LLC et al. v. CLD Trucking Co. d/b/a Atlas Moving Systems AMS

Case Number: 3:21-cv-00117-RLY-MPB
File Date: Thursday, July 22, 2021
Plaintiff: AWGI, LLC, Atlas Van Lines, Inc.
Plaintiff Counsel: Mark. F. Warzecha, Esq. of Wideman Malek, PL
Defendant: CLD Trucking Co. d/b/a Atlas Moving Systems AMS
Cause: Federal Trademark Infringement, Common Law Unfair Competition
Court: Southern District of Indiana
Judge: Richard L. Young
Referred To: Matthew P. Brookman

Complaint:

Memorandum in Support of Plaintiff’s Motion for Preliminary Injunction:

Cute/Horrifying Baby Teeth Photograph Leads to Copyright Infringement Lawsuit

26 Monday Jul 2021

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

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The Plaintiff in this copyright lawsuit is an infant photographer who uses photo editing software to add teeth to her infant subjects. Depending on your aesthetic tastes, the resulting photographs range somewhere between cute and horrifying.

The Defendant sells teeth whitening and oral care products and allegedly used one of the Plaintiff’s photographs in a Facebook advertisement in August 2019. The photograph was altered to whiten the teeth and remove the Plaintiff’s watermark. The advertisement (below) included a link to the Defendant’s website and a “Shop Now” button.

It’s hard to see this lawsuit going very far; it’s slightly ridiculous it had to be filed at all. This situation seems like it would be a perfect fit for a small claims copyright court. Hopefully the parties can soon find an amicable resolution, like an appropriate license fee, for the (possibly) 4one-time use of Plaintiff’s photograph. If the Defendant somehow determines it would make more sense to litigate, we might see them challenge jurisdiction in Indiana.

Stay tuned for updates.

Haehl v. Dr. Brite, LLC

Case Number: 1:21-cv-02072-JPH-MJD
File Date: Wednesday, July 21, 2021
Plaintiff: Amy Haehl
Plaintiff Counsel: Bradley M. Stohry of Reichel Stohry Dean LLP
Defendant: Dr. Brite, LLC
Cause: Direct Copyright Infringement, Vicarious Copyright Infringement, Removal or Alteration of Copyright Management Information
Court: Southern District of Indiana
Judge: James Patrick Hanlon
Referred To: Mark J. Dinsmore

Complaint: