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Indiana Intellectual Property Blog

~ Trademark and Copyright Law Updates in Indiana

Indiana Intellectual Property Blog

Category Archives: Trade Dress

Fireworks involved in first Indiana Trademark Lawsuit of 2023

10 Tuesday Jan 2023

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

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False Designation of Origin, Federal Trademark Infringement, Mario Garcia, Misappropriation, Tanya Walton Pratt, Trade Dress Infringement

Happy New Year! It didn’t take long to get the first Indiana trademark (and trade dress) lawsuit of 2023, and in continuation of the festive celebrations, it involves fireworks.

The Defendants are alleged to be selling fireworks that infringe the Plaintiff’s registered TIKI, GHOST, and XL trademarks, as well as a “Tiki Trade Dress”.

The parties seem to be all major players in the fireworks industry, so they likely have some history. The Plaintiff has registered trademarks and it seems that the Defendants introduced new competing products utilizing similar marks after the registration date. As always, the Defendants’ Answer may tell another side of the story so stay tuned for updates.

1.4G Holdings, LLC v. North Central Industries, Inc. et al.

Court Case Number: 1:23-cv-00037-TWP-MG
File Date: January 5, 2023
Plaintiff: 1.4G Holdings, LLC
Plaintiff Counsel: Philip R. Zimmerly of Bose McKinney & Evans LLP
Defendants: North Central Industries, Inc., Great Grizzly, Inc., R.Brown, Inc.
Cause: Federal Trademark Infringement, False Designation of Origin, Trade Dress Infringement, Misappropriation
Court: Southern District of Indiana
Judge: Tanya Walton Pratt
Referred To: Mario Garcia

Complaint:

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October 2022 Indiana Intellectual Property Litigation Update

15 Saturday Oct 2022

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

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Litigation Update

Indiana Intellectual Property litigators were busy over the last month, with lots of updates in pending litigation. Only one new lawsuit was filed, between an Elkhart RV manufacturer and several of its former employees, but several Answers were filed in other lawsuits, allowing them to finally move forward. See below for the more interesting filings and stay tuned for updates.

Sears Authorized Hometown Stores, LLC v. Lynn Retail, 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.

AWGI, LLC et al. v. CLD Trucking Co. d/b/a Atlas Moving Systems AMS (SD, filed 7/22/2021) – No update this month. 

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – A Scheduling Conference has been moved to December 1, 2022. No other updates.

Thomas v. ooShirts, Inc. et al. (SD, filed 9/24/2021) – The defendants filed an Answer on October 11, 2022, more than a year after the Complaint was filed.

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

Innovative Sports Management Inc. v. La Jalisco LLP (SD, filed 12/15/2021) – No update this month. 

Gabet et al. v. Amazon.com. Inc. et al. (ND, filed 1/20/2022) – No update this month.

Reid v. Stephenson (SD, filed 1/27/2022) – The Plaintiff filed a Motion for Clerk’s Entry of Default on October 4, 2022. There is still no activity from the defendant.

NuStar Enterprises LLC v. Reloaded Merch LLC et al. (ND, filed 4/1/2022) – The defendant filed an Answer on October 4, 2022 which was promptly stricken for failure to comply with local rules. A subsequent Answer was filed on October 12, 2022. A Preliminary Pretrial Conference is scheduled for November 3, 2022.

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Mapes v. Top Tier Marketers LLC d/b/a Artfily et al. (SD, filed 4/4/2022) – On September 20, 2022, the Platinff filed a Motion for Summary Judgment. The Florida-based husband/wife defendants have still not taken any action in this lawsuit.

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The Evolutionary Level Above Human, Inc. v. Havel et al (ND, filed 5/18/2022) – Defendant Bartel filed a Response to Counterclaims on September 26, 2022.

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On October 7, 2022, Defendant Havel filed a Motion requesting court-appointed counsel.

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The Plaintiff responded to the Motion on October 11, 2022, challenging the Defendant’s claim of lack of competency to defend themselves.

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Lafayette Venetian Blind, Inc. v. Coulisse Distribution LLC et al. (ND, filed 6/29/2022) – The lawsuit was voluntarily dismissed without prejudice on September 28, 2022.

PUMA SE et al. v. Brooks Sports, Inc. (SD, filed 7/8/2022) – The Defendant filed an Answer on September 28, 2022. They also filed a Motion to Change Venue on the same day, which has not yet been fully briefed. The Plaintiff has until October 26, 2022 to respond to the Motion to Change Venue. A Virtual Settlement Conference is scheduled for November 9, 2022.

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Broadcast Music, Inc. et al v. Thirty-Six Saloon, LLC d/b/a Thirty Six Saloon et al. (SD, filed 7/27/2022) – A Clerk’s Entry of Default was entered on September 26, 2022.

Schwartz v. Kilroy’s North America, LLC et al (SD, filed 8/5/2022) – The Defendants have until October 26, 2022 to file their Answer.

Oakley, Inc. v. Batter’s Box Training, LLC et al (SD, filed 8/11/2022) – The Defendants filed an Answer on October 4, 2022.

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Honest Ave Roofing franchise, Inc. v. DCH & Associates, LLC et al. (SD, filed 9/7/2022) – Certificates of Service were filed on September 13, 2022. Stay tuned for updates.

Phoenix USA RV, Inc. v. Hoosier Custom Cruisers LLC et al. (ND, removed 10/7/2022) – On October 13, 2022, the Defendants requested an Extension of Time to File an Answer.

September 2022 Updates – August 2022 Updates – July 2022 Updates

June 2022 Updates – May 2022 Updates – April 2022 Updates – March 2022 Updates

February 2022 Updates– January 2022 Updates – December 2021 Updates

Elkhart RV Manufacturer sues Former Employees for Conversion, Trade Dress Infringement

11 Tuesday Oct 2022

Posted by Kenan Farrell in Indiana, Intellectual Property, Litigation, Northern District of Indiana, Trade Dress

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Breach of Fiduciary Duty, Common Law Trade Dress Infringement, Conversion, Criminal Conversion, Damon R. Leichty, Federal Unfair Competition, Michael G. Gotsch, Theft, Trade Dress Dilution

The plaintiff in this lawsuit is Phoenix USA RV, an RV manufacturer located in Elkhart, Indiana, the RV Capital of the World.

The defendants are a large group of former Phoenix USA employees and the competitor company they founded while still working at Phoenix USA. The defendants are accused of sabotaging the plaintiff’s operations, stealings its tangible and intellectual property, and using a stolen RV design to build a prototype for a virtually identical RV. The allegedly infringing RV is now being marketed online and at RV trade shows.

The defendants are represented by Jonathan R. Slabaugh of Sanders Pianowski LLP. Based on the history detailed in the Complaint (below), we can probably expect some fireworks once everything gets going. Employment disputes involving just one employee can get messy, but this situation involves a whole company’s worth of ex-employees plus their new competing company.

This lawsuit was removed from Elkhart Superior Court to the Northern District of Indiana. Stay tuned for updates.

Phoenix USA RV, Inc. v. Hoosier Custom Cruisers LLC et al.

Court Case Number: 3:22-cv-00855
File Date: October 7, 2022
Plaintiff: Phoenix USA RV, Inc.
Plaintiff Counsel: Paul E. Harold, Stephen M. Judge of SouthBank Legal
Defendants: Hoosier Custom Cruisers LLC et al.
Cause: Conversion, Criminal Conversion, Theft, Breach of Fiduciary Duty, Federal Unfair Competition, Trade Dress Dilution, Common Law Trade Dress Infringement, Common Law Unfair Competition
Court: Northern District of Indiana
Judge: Damon R. Leichty
Referred To: Michael G. Gotsch, Sr.

Complaint:

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Mid-December 2021 Indiana Intellectual Property Litigation Update

15 Wednesday Dec 2021

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

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Litigation Update

IP litigators must have started celebrating the holidays early, as it’s been a very quiet month for intellectual property lawsuits in Indiana. Only one new lawsuit was filed, a copyright case involving a single photograph used by Chicks on the Right in an online news article back in 2019. We did get some big news yesterday that Methodist Sports Medicine has decided to change its name to Forté Sports Medicine and Orthopedics, yet we’ll have to wait to see how the name change will impact the pending lawsuit.

Many cases just received time extensions, saving their fight for the new year.

Happy holidays from the Indiana Intellectual Property Blog. See you in January for next month’s updates.

Noble Romans, Inc. v. Gateway Triangle Corp. et al. (SD, filed 2/5/2021) – The filing deadline for outstanding filings has been extended from December 9, 2021 to January 6, 2022.

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) – After two short extensions, dismissal papers are now due by December 17, 2021.

Sears Authorized Hometown Stores, LLC v. Lynn Retails, Inc. et al. (SD, filed 6/4/2021) – A Protective Order was entered on December 9, 2021.

Noble Roman’s, Inc. v. AMI Stores Management, Inc. et al. (SD, filed 6/6/2021) – On December 2, 2021, the parties filed a joint motion to extend Court-ordered pretrial deadlines. The motion was denied without prejudice because the motion failed to show good cause for the extension.

Phoenix Intangibles Holding Company et al. v. Virk Brothers, LLC et al. (ND, filed 7/9/2021) – The Scheduling Order was amended to extend discovery deadlines.

AWGI, LLC et al. v. CLD Trucking Co. d/b/a Atlas Moving Systems AMS (SD, filed 7/22/2021) – On November 19, 2021, the Plaintiffs filed a Motion to Enforce Judgment seeking transfer of internet domains and social media accounts.

View this document on Scribd

View this document on Scribd

RE/MAX, LLC et al. v. Dulin et al. (SD, filed 8/24/2021) – On December 8, 2021, the Defendants filed a motion requesting until January 11, 2022 to respond to Plaintiff’s Discovery Request.

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – An Amended Complaint was filed on December 9, 2021 and the Answer to Amended Complaint was filed on December 12, 2021.

Thomas v. ooShirts, Inc. et al. (SD, filed 9/24/2021) – Attorney Kelly V. Milam filed an appearance on behalf of defendant ooShirts, Inc. on November 23, 2021.

Edutainment Live, LLC v. Video Game Palooza et al. (SD, filed 10/11/2021) – The Defendants’ attorneys filed appearances on December 8, 2021.

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

Alcorn v. COTR, LLC (SD, filed 11/22/2021) – No update yet.

November 2021 Updates

October 2021 Updates

September 2021 Updates

August 2021 Updates

July 2021 Updates

June 2021 Updates

May 2021 Updates

April 2021 Updates

Mid-November 2021 Indiana Intellectual Property Litigation Update

15 Monday Nov 2021

Posted by Kenan Farrell 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.

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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.

View this document on Scribd

View this document on Scribd

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.

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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

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