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Indiana Intellectual Property Blog

~ Trademark and Copyright Law Updates in Indiana

Indiana Intellectual Property Blog

Category Archives: Southern District of Indiana

December 2023 Indiana Intellectual Property Litigation Update

15 Friday Dec 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

Happy holidays to every reader of the Indiana Intellectual Property Blog. It was a quiet month in Indiana copyright and trademark litigation as most litigators turned to their turkey and pie, but a few lawsuits did manage to settle, presumably because of influence of the holiday spirit. A new lawsuit involving a short music clip used in a 2016 social media post should serve as a warning to all businesses to set aside time in the new year to audit old social media content. Read on below for the latest updates on all pending IP litigation and we’ll see you next in 2024.

Sears Authorized Hometown Stores, LLC v. Lynn Retail, Inc. et al. (SD, filed 6/4/2021) – On December 12, 2023, the defendants filed a Motion to Dismiss the lawsuit with prejudice, based on a settlement in a bankruptcy proceeding.

Noble Roman’s, Inc. v. AMI Stores Management, Inc. et al. (SD, filed 6/6/2021) – No update this month. Dismissal papers are due by February 7, 2024.

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – No update this month. Trial is scheduled on February 27, 2024.

Gabet et al. v. Amazon.com. Inc. et al. (ND, filed 1/20/2022) – Amazon filed an Amended Answer to Complaint on December 12, 2023.

The Evolutionary Level Above Human, Inc. v. Havel et al (ND, filed 5/18/2022) – Several new motions were filed over the last month. So many, in fact, that the Court has prohibited the filing of any new motions without the Court’s permission. Defendant Havel filed a rare Motion for Preliminary Injunction on Plaintiffs Registering New Copyrights and/or Trademarks, to which the Plaintiff filed a strong response on December 4, 2023.

View this document on Scribd

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, apart from a letter being returned undeliverable.

The Center for Gestalt Development, Inc. v. Bowman (SD (11/09/2022) – Defendant Robine filed an Amended Answer to Complaint on December 8, 2023. A telephonic status conference is scheduled on December 18, 2023.

1.4G Holdings, LLC v. North Central Industries, Inc. et al. (SD 1/05/2023) – The Defendants’ deadline to file their Response to Plaintiff’s Motion to Dismiss is to December 26, 2023.

Albert’s Diamond Jewelers, Inc. v. AaLand Diamond Jewelers LLC (ND 2/01/2023) – No update this month. Per Court order, dismissal papers are due by January 25, 2024.

Delta Faucet Company v. Watkins et al. (SD 2/01/2023) – On December 8, 2023, final judgment was entered in the mount of $5,402,245, along with a permanent injunction, and the lawsuit was closed.

Taylor Shaye Designs LLC v. Shein Distribution Corp. (SD 4/11/2023) – The lawsuit was dismissed with prejudice on November 16, 2023.

HealthSmart Foods, Inc. v. Sweet Nothings, Inc. et al. (SD 4/13/2023) – A Settlement Conference was held on December 7 and 8, 2023, and the lawsuit was settled. A Stipulation of Dismissal was filed on December 14, 2023.

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

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) –  A trial date has been set on May 5, 2025. A final pretrial conference will be held on April 17, 2025.

Nickel and Dimes Incorporated v. Noah’s Arcade LLC et al (ND 7/25/2023) – A Scheduling Order was entered on December 5, 2023 and the parties filed their Corporate Disclosure Statements.

Hoffman v. Lauth Investigations International Inc. (SD 9/18/2023) – On December 13, 2023, the defendant requested, via unopposed motion, to extend its deadline to respond until January 3, 2024.

Banjo Corporation v. Green Leaf, Inc. (SD 9/29/2023) – The plaintiff has requested an extension of time to respond to the counterclaims in the Answer.

Perma-Green Supreme, Inc. v. Dr. Permagreen, LLC et al. (ND 10/06/2023) – An Amended Answer to Complaint was filed on December 8, 2023. Discovery deadlines were set via Scheduling Order on December 11, 2023.

View this document on Scribd

Secada Medical LLC d/b/a Ventris Medical, LLC v. Nexxt Spine, LLC (SD 11/01/2023) – Matthew J. Clark has entered an appearance on behalf of the defendant.

Radic v. AllCity Adjusting LLC et al (ND 11/03/2023) – No update yet.

Tempur Sealy International, Inc. et al. v. Luxury Mattress & Furniture, LLC (ND 11/09/2023) –  The defendant did not file an Answer by the December 11, 2023 deadline.

Stross v. Homestead Properties, Inc. (SD 11/09/2023) – On November 21, 2023, the Court entered an Order requiring the plaintiff to file a separate motion for preliminary injunctive relief, as the Complaint contained a request for a preliminary injunction. That’s a little more work than you usually would expect in a photography lawsuit, which typically settle early, so we’ll see whether the plaintiff follows up on their initial request for the preliminary injunction.

Matsumoto v. Pho Real LLC (SD 11/15/2023) – Robert L. Nicholson has entered an appearance on behalf of the defendant. On December 14, 2023, the defendant filed a Notice of Parties’ First Extension of Time.

Watson Music Group, LLC v. Borshoff, Inc. (SD 11/22/2023) – No update yet.

November 2023 Updates – October 2023 Updates – 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

Indianapolis Advertising Agency sued over Song Clip in 2016 Facebook Post

28 Tuesday Nov 2023

Posted by Kenan Farrell in Advertising Law, Copyright, Indiana, Indianapolis, Intellectual Property, Litigation, Musicians, Southern District of Indiana

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Direct Copyright Infringement, Kellie M. Barr, Tanya Walton Pratt

An Indianapolis-based advertising agency is being sued for using a 5-second song clip in a promotional video posted on their Facebook page on March 11, 2016.

The plaintiff, a musical group called the Quad City DJ’s, alleges that they first discovered the “infringing” post on June 20, 2023. Approximately 5-6 seconds of the plaintiff’s song, “Space Jam,” are played in the background of a video promoting Dribble to Work Day during the NCAA Women’s Final Four. The short promotional video, still viewable here, has only 294 views since being published in 2016. How many of those views are the plaintiff and plaintiff’s counsel?

This lawsuit should serve as a warning to all businesses to go back and review old social media posts, checking for any unauthorized photos, music, videos, etc. Old social media content is now being scanned by AI bots, even “watching” old videos, and a federal lawsuit could always be lurking. While real damages might be low, copyright law allows for a plaintiff to recover statutory damages, legal costs, and attorney fees.

Consider whether it’s time for your business to delete some old social media content.

Watson Music Group, LLC v. Borshoff, Inc.

Court Case Number: 1:23-cv-02117-TWP-KMB
File Date: November 22, 2023
Plaintiff: Watson Music Group, LLC d/b/a Quadrasound Music
Plaintiff Counsel: Craig Sanders, Esq. of Sanders Law Group
Defendant: Borshoff, Inc.
Cause: Direct Copyright Infringement
Court: Southern District of Indiana
Judge: Tanya Walton Pratt
Referred To: Kellie M. Barr

Complaint:

View this document on Scribd

November 2023 Indiana Intellectual Property Litigation Update

15 Wednesday Nov 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

The last month in Indiana Intellectual Property litigation definitely took on a Halloween theme, including new cases involving unauthorized mattresses, plaster falling off the ceiling, bovine collagen and surgical kits. One trademark lawsuit looked set for trial in early November but was continued until February due to the lead counsel contracting COVID. Many lawsuits have a telephonic conference scheduled over the next 30 days, so perhaps we’ll see some significant updates early next year. Read on for updates on all pending Indiana trademark and copyright litigation. Leave a comment below and let us know which cases you are closely following.

Sears Authorized Hometown Stores, LLC v. Lynn Retail, Inc. et al. (SD, filed 6/4/2021) – A Telephonic Status Conference is scheduled on November 15, 2023.

Noble Roman’s, Inc. v. AMI Stores Management, Inc. et al. (SD, filed 6/6/2021) –  A Settlement Conference was held on November 9, 2023, and the Court reports that the case is settled. The parties have 90 days to file a Stipulation of Dismissal.

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – This lawsuit was lurching toward a rare trademark trial on November 6, 2023, with over 20 filings since last month’s update, including motions, responses, proposed voir dire, objections, and more. However, due to an even more rare Emergency Motion to Continue Trial Due to Covid, the trial has been moved to February 27, 2024.

View this document on Scribd

Gabet et al. v. Amazon.com. Inc. et al. (ND, filed 1/20/2022) – A Telephonic Discovery Conference was held on November 2, 2023.

The Evolutionary Level Above Human, Inc. v. Havel et al (ND, filed 5/18/2022) – Several motions and responses were filed in the last month.

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) –  The plaintiff filed a Motion for Entry of Default on October 20, 2023. The Clerk’s Entry of Default was entered on November 8, 2023.

The Center for Gestalt Development, Inc. v. Bowman (SD (11/09/2022) – On October 27, 2023, the Court denied Defendant Bowman’s Motion for Leave to File Early Summary Judgment Motion.

1.4G Holdings, LLC v. North Central Industries, Inc. et al. (SD 1/05/2023) – The defendants filed their answer on November 2, 2023, including affirmative defenses and counterclaims seeking cancellation of the plaintiff’s trademark registrations. The defendants are represented by Meaghan K. Haller, Alex E. Gude, and Jessica L. Meek of Dentons Bingham Greenebaum LLP and John H. Brooke of Brooke & Struble, P.C.

View this document on Scribd

Albert’s Diamond Jewelers, Inc. v. AaLand Diamond Jewelers LLC (ND 2/01/2023) – The parties filed a Motion to Stay on October 24, 2023. The parties have been ordered to file dismissal papers by January 25, 2024.

Delta Faucet Company v. Watkins et al. (SD 2/01/2023) – On November 1, 2023, the Court ordered Delta to file a Notice by November 15, 2023, which addresses whether the Court has personal jurisdiction over the named defendant.

Taylor Shaye Designs LLC v. Shein Distribution Corp. (SD 4/11/2023) – The plaintiff filed a Stipulation of Dismissal on November 14, 2023.

HealthSmart Foods, Inc. v. Sweet Nothings, Inc. et al. (SD 4/13/2023) – A Status Conference was held on November 6, 2023 and another is scheduled on November 27, 2023. On November 3, 2023, the defendants filed their response to the plaintiff’s Motion for Preliminary Injunction. The response accuses the plaintiff of fraud on the USPTO, unreasonable delay, and unclean hands. It further emphasizes that there has been no evidence of consumer confusion. The plaintiff’s reply to their Motion for PI, due shortly, is now a must-read document.

View this document on Scribd

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

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) –  A Telephonic Rule 16 Preliminary Pretrial Conference was held on November 14, 2023. Daniel Joseph Layden has entered an appearance on behalf of the defendant.

Nickel and Dimes Incorporated v. Noah’s Arcade LLC et al (ND 7/25/2023) – A Telephonic Rule 16 Preliminary Pretrial Conference is scheduled on November 29, 2023.

Hoffman v. Lauth Investigations International Inc. (SD 9/18/2023) – The time to respond to the Complaint has been extended to November 22, 2023.

Banjo Corporation v. Green Leaf, Inc. (SD 9/29/2023) – A Telephonic Rule 16 Preliminary Pretrial Conference is scheduled on December 19, 2023.

Perma-Green Supreme, Inc. v. Dr. Permagreen, LLC et al. (ND 10/06/2023) – The time to respond to the Complaint has been extended to November 27, 2023. A Telephonic Rule 16 Preliminary Pretrial Conference is scheduled on December 14, 2023.

Secada Medical LLC d/b/a Ventris Medical, LLC v. Nexxt Spine, LLC (SD 11/01/2023) – No update yet.

Radic v. AllCity Adjusting LLC et al (ND 11/03/2023) – No update yet.

Tempur Sealy International, Inc. et al. v. Luxury Mattress & Furniture, LLC (ND 11/09/2023) – No update yet.

Stross v. Homestead Properties, Inc. (SD 11/09/2023) – No update yet.

October 2023 Updates – 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

Photography Copyright Lawsuit filed against Indiana Hardwood Grower

14 Tuesday Nov 2023

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

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Copyright Infringement, Kellie M. Barr, Photography, Removal of Copyright Management Information, Tanya Walton Pratt

Here’s yet another photography lawsuit where a company is alleged to have used a photograph without authorization. The defendant this time is a Deputy, Indiana grower/manufacturer of Indiana hardwood products.

All companies should immediately prioritize reviewing their website to confirm ownership, approval, or other legal authority (e.g. fair use) for EVERY photograph. Otherwise, AI image searches will eventually find the unauthorized use and a copyright lawsuit will always be just around the corner. Using Google Images to find photographs for a website is never a good idea.

Stross v. Homestead Properties, Inc.

Court Case Number: 4:23-cv-00183-TWP-KMB
File Date: November 9, 2023
Plaintiff: Alexander Bayonne Stross
Plaintiff Counsel: J. Campbell Miller of SRIPLAW, P.A.
Defendant: Homestead Properties, Inc. dba Tiny Timbers
Cause: Copyright Infringement, Removal of Copyright Management Information
Court: Southern District of Indiana
Judge: Tanya Walton Pratt
Referred To: Kellie M. Barr

Complaint:

View this document on Scribd

Trademark Infringement Lawsuit filed in Indiana over Surgical Bovine Collagen, Implant Kits

02 Thursday Nov 2023

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

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Common Law Passing Off, Common Law Trademark Infringement, Common Law Unfair Competition, Federal False Designation of Origin, Federal Trademark Infringement, Federal Unfair Competition, James R. Sweeney II, M. Kendra Klump

The plaintiff in this new Indiana trademark infringement lawsuit, Ventris Medical, offers a bovine collagen product for management of complex wounds called CONNEXT®.

The defendant, Nexxt Spine of Noblesville, Indiana, recently adopted and is using the mark CONNEXX in connection with a surgical implant kit.

Per the Complaint (below), cease-and-desist communications have been unsuccessful to date and the plaintiff now seeks court intervention in the Southern District of Indiana.

In this case, both parties sell products to highly sophisticated consumers, i.e. surgeons. The more sophisticated the purchaser, the less likely that there will be likelihood of confusion. The defendant likely considered that high sophistication level when selecting its similar trademark.

Secada Medical LLC d/b/a Ventris Medical, LLC v. Nexxt Spine, LLC

Court Case Number: 1:23-cv-01960-JRS-MKK
File Date: November 1, 2023
Plaintiff: Secada Medical LLC d/b/a Ventris Medical, LLC
Plaintiff Counsel: Samuel B. Gardner of Ice Miller LLP
Defendant: Nexxt Spine, LLC
Cause: Federal Trademark Infringement, Federal Unfair Competition, Federal False Designation of Origin, Common Law Trademark Infringement, Common Law Unfair Competition, Common Law Passing Off
Court: Southern District of Indiana
Judge: James R. Sweeney II
Referred To: M. Kendra Klump

Complaint:

View this document on Scribd

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