Category Archives: Trademark

January 2023 Indiana Intellectual Property Litigation Update

17 Tuesday Jan 2023

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

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As usual, there was not much action over the holiday period in Indiana copyright and trademark lawsuits. The big surprise of the last month was a Notice of Settlement filed in the Omi in a Hellcat “Reloaded” lawsuit on December 23, 2022. Terms of settlement have not been made public and we’re still awaiting the dismissal documents, but it seems to have come rather abruptly considering recent filings.

The next few months should be busier as new judges take over existing lawsuits. Stay tuned for updates.

Sears Authorized Hometown Stores, LLC v. Lynn Retail, Inc. et al. (SD, filed 6/4/2021) – Plaintiff’s deadline to serve final witness and exhibit lists has been extended to January 20, 2023.

Noble Roman’s, Inc. v. AMI Stores Management, Inc. et al. (SD, filed 6/6/2021) –  Noble Roman’s filed a Motion for Summary Judgment on December 21, 2022.

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – The parties filed a Joint Status Report with several updates.

Thomas v. ooShirts, Inc. et al. (SD, filed 9/24/2021) – The Defendants filed an Answer on January 11, 2023, after receiving leave to file after their deadline. The parties held a status conference with the Court on January 12, 2023 and another is scheduled on February 8, 2023.

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) –  A default judgment was entered on December 15, 2022. In total, the Plaintiff was awarded $42,000.48.

Gabet et al. v. Amazon.com. Inc. et al. (ND, filed 1/20/2022) – A settlement conference is scheduled for August 31, 2023.

Reid v. Stephenson (SD, filed 1/27/2022) – A telephonic status conference was scheduled for January 24, 2023 but the case was subsequently assigned to Magistrate Judge M. Kendra Klump. The new case number is 1:22-cv-00205-JRS-MKK.

NuStar Enterprises LLC v. Reloaded Merch LLC et al. (ND, filed 4/1/2022) – A joint Notice of Settlement was filed on December 23, 2022. The plaintiff was given 30 days to file dismissal documents.

The Evolutionary Level Above Human, Inc. v. Havel et al (ND, filed 5/18/2022) –  A video motion hearing is scheduled for February 10, 2023, to discuss Defendant Bartel’s pending motions.

PUMA SE et al. v. Brooks Sports, Inc. (SD, filed 7/8/2022) – The Court entered a Uniform Stipulated Protective Order on December 19, 2022. No other updates.

Broadcast Music, Inc. et al v. Thirty-Six Saloon, LLC d/b/a Thirty Six Saloon et al. (SD, filed 7/27/2022) – No update this month.

Schwartz v. Kilroy’s North America, LLC et al (SD, filed 8/5/2022) – A telephonic status conference was held on January 9, 2023. A settlement conference will be schedule by separate order.

Oakley, Inc. v. Batter’s Box Training, LLC et al (SD, filed 8/11/2022) – Plaintiff has been authorized to file a motion to compel Defendants’ tax returns. A telephonic status conference is set for February 3, 2023.

Honest Abe Roofing franchise, Inc. v. DCH & Associates, LLC et al. (SD, filed 9/7/2022) – On December 7, 2022, a Clerk’s Entry of Default was entered against Defendants Christine Harris, Dameion Harris, and Honest Abe Roofing of Macon Georgia, LLC. On January 11, 2023, the Motion for Clerk’s Entry of Default against Defendant DCH & Associates, LLC was denied for lack of proper service.

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 December 27, 2022, the Plaintiff filed its Response to Defendant Reed’s Motion to Dismiss for Lack of Jurisdiction.

After receiving an extension of time, Defendant Reed’s Reply was filed on January 10, 2023.

The Center for Gestalt Development, Inc. v. Bowman (SD (11/09/2022) – On January 13, 2023, Defendant Bowman filed a Motion to Dismiss for Lack of Venue.

1.4G Holdings, LLC v. North Central Industries, Inc. et al. (SD 1/05/2023) – No update yet.

December 2022 Updates –  December 2021 Updates

Fireworks involved in first Indiana Trademark Lawsuit of 2023

10 Tuesday Jan 2023

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

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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:

December 2022 Indiana Intellectual Property Litigation Update

15 Thursday Dec 2022

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

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There were no new trademark or copyright lawsuits filed in Indiana in the last month. However, there were some interesting developments in existing cases. A Florida husband/wife marketing team never appeared and received a judgment against them for $159,000. Youtube Celebrity Omi in a Hellcat filed an Amended Counterclaims further asserting his ownership of the RELOADED brand and momentarily rendering moot a Motion to Dismiss. Puma has filed its answer to Brooks’ counterclaims, setting up an epic shoe design battle that could last all of next year. The Court in The Center for Gestalt Development lawsuit is currently deliberating on a fully-briefed Motion to Stay of Proceedings and to Require Plaintiff to Pay Defendant’s Costs of Previously Dismissed Suit. Read on below for details on all pending lawsuits.

Happy holidays to everyone. See you in January for all the latest Indiana Intellectual Property Litigation 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) – Deadlines in the Scheduling Order have been continued via motion.

Thomas v. ooShirts, Inc. et al. (SD, filed 9/24/2021) – An Amended Complaint was filed on November 29, 2022. On December 14, 2022, the parties filed a Joint Status Report hinting at an impending discovery dispute.

Edutainment Live, LLC v. Video Game Palooza et al. (SD, filed 10/11/2021) –  The parties have filed their Witness and Exhibit Lists.

Innovative Sports Management Inc. v. La Jalisco LLP (SD, filed 12/15/2021) –  A Motion for Default Judgment was filed by the Plaintiff on November 21, 2022.

Gabet et al. v. Amazon.com. Inc. et al. (ND, filed 1/20/2022) – The case has been assigned to Mark J. Dinsmore. The new case number is 1:22-cv-02246-JPH-MJD.

Reid v. Stephenson (SD, filed 1/27/2022) – The case has been assigned to Mark J. Dinsmore. The new case number is 1:22-cv-00205-JRS-MJD.

NuStar Enterprises LLC v. Reloaded Merch LLC et al. (ND, filed 4/1/2022) – The Plaintiff filed its Answer to Counterclaims on November 22, 2022. The Defendants then filed an Amended Answer to Complaint on December 7, 2022. The Plaintiff has until December 23, 2022 to reply to the Amended Counterclaims.

Mapes v. Top Tier Marketers LLC d/b/a Artfily et al. (SD, filed 4/4/2022) – On December 8, final judgment was entered and the Plaintiff was awarded $150,000 in statutory damages, reasonable attorneys’ fees in the amount of $7,714.22 and reasonable costs in the amount of $2,007.52.

The Evolutionary Level Above Human, Inc. v. Havel et al (ND, filed 5/18/2022) – No update this month.

PUMA SE et al. v. Brooks Sports, Inc. (SD, filed 7/8/2022) – Puma filed its Answer to Counterclaims on November 23, 2022.

Broadcast Music, Inc. et al v. Thirty-Six Saloon, LLC d/b/a Thirty Six Saloon et al. (SD, filed 7/27/2022) – No update this month. 

Schwartz v. Kilroy’s North America, LLC et al (SD, filed 8/5/2022) – Trial has been set for March 11, 2024 (Yes, that’s 2024. “The wheels of justice grind slow but grind fine.” – Sun Tzu).

Oakley, Inc. v. Batter’s Box Training, LLC et al (SD, filed 8/11/2022) – A telephonic status conference is scheduled for January 6, 2023.

Honest Abe Roofing franchise, Inc. v. DCH & Associates, LLC et al. (SD, filed 9/7/2022) – The plaintiff filed a Motion for Clerk’s Entry of Default on December 6, 2022.

Phoenix USA RV, Inc. v. Hoosier Custom Cruisers LLC et al. (ND, removed 10/7/2022) – The Court entered a Scheduling Order on December 6, 2022.

MaddenCo Inc. v. Reed et al. (SD, filed 10/31/2022) – On December 5, 2022, Defendant filed a Motion to Dismiss for Lack of Jurisdiction.

The Center for Gestalt Development, Inc. v. Bowman (SD (11/09/2022) – On November 29, 2022, the case was reassigned to Judge Richard L. Young and Magistrate Tim A. Baker. The new case number is 1:22-cv-02185-RLY-TAB. The Court has yet to rule on the Defendant’s fully-briefed Motion to Stay of Proceedings and to Require Plaintiff to Pay Defendant’s Costs of Previously Dismissed Suit.

November 2022 Updates – October 2022 Updates – 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

October 2022 Indiana Intellectual Property Litigation Update

15 Saturday Oct 2022

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

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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.

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.

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.

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.

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

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

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.

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.

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

September 2022 Indiana Intellectual Property Litigation Update

15 Thursday Sep 2022

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

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Henry Wadsforth Longfellow was invoked by the Court in an Opinion and Order for the Amazon/Ligonier perfumery lawsuit. The Court followed an evocative Longfellow passage about “Ships that pass in the night” with its own damning assessment of the state of the lawsuit:

“There are cases in which all that is shared in the parties’ briefs is the caption. The most mundane facts are passionately disputed. Unfavorable facts are misrepresentations. Unfavorable case law is not just distinguishable, it is irrelevant and misleading. Differing interpretations of evidence are absurd. Every action of opposing counsel is performed with malice.

These cases tax the Court needlessly. Rather than address the salient legal issues, the Court must check and re-check threshold factual matters and blackletter law. Motions cannot be decided before evidentiary objections, and objections to those objections, are resolved. The Court functions less as an adjudicative body and more as a schoolmarm.

This, unfortunately, looks to be one of those cases.”

See the full Opinion and Order below for the rest of the Court’s analysis.

The Omi in a Hellcat lawsuit may also require a schoolmarm soon to intervene in the parties’ dispute over jurisdictional discovery, which has seen charges of obfuscation and improper objections.

Which lawsuits are you following most closely?

Sears Authorized Hometown Stores, LLC v. Lynn Retail, Inc. et al. (SD, filed 6/4/2021) – The Defendants filed a Reply in Support of their Motion for Summary Judgment on August 25, 2022.

Noble Roman’s, Inc. v. AMI Stores Management, Inc. et al. (SD, filed 6/6/2021) – Discovery deadlines have been extended by motion to October 4, 2022.

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

RE/MAX, LLC et al. v. Dulin et al. (SD, filed 8/24/2021) – The lawsuit was dismissed with prejudice on September 1, 2022.

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – The parties’ discovery deadlines were extended by motion on September 2, 2022.

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 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) – Amazon’s Motion to Transfer Venue was granted on September 6, 2022. The case will be transferred from the Northern District of Indiana to the Southern District of Indiana, so we’ll be able to continue to follow it on this blog.

Reid v. Stephenson (SD, filed 1/27/2022) – The Complaint was served on Lance Stephenson on August 30, 2022. No further update.

Microsoft Corporation v. Solution Hat, LLC d/b/a Think Global et al. (SD, filed 2/25/2022) – The court granted permanent injunction against the Defendants and the lawsuit was dismissed.

NuStar Enterprises LLC v. Reloaded Merch LLC et al. (ND, filed 4/1/2022) – The parties are in the midst of a jurisdictional discovery dispute, and are now awaiting the Court’s ruling on a fully-briefed Motion to Compel Jurisdictional Discovery. The latest filing (below) finds the Plaintiff lamenting the Defendants’ “continued obfuscation” and discovery responses “rife with additional improper objections.” Stay tuned for the Court’s rulings.

Mapes v. Top Tier Marketers LLC d/b/a Artfily et al. (SD, filed 4/4/2022) – Some internal court administration took place over the last month, but no substantive updates.

The Evolutionary Level Above Human, Inc. v. Havel et al (ND, filed 5/18/2022) – On August 17, the Plaintiff filed its Answer to the counterclaims of Defendants Havel and Weaver.

Defendant Bartel filed an Answer on September 9, 2022.

Lafayette Venetian Blind, Inc. v. Coulisse Distribution LLC et al. (ND, filed 6/29/2022) – No update yet.

PUMA SE et al. v. Brooks Sports, Inc. (SD, filed 7/8/2022) – Even more attorneys have made pro hac vice appearances this month, but there are no substantive updates.

Broadcast Music, Inc. et al v. Thirty-Six Saloon, LLC d/b/a Thirty Six Saloon et al. (SD, filed 7/27/2022) – BMI filed a Motion for Clerk’s Entry of Default on September 6, 2022.

Schwartz v. Kilroy’s North America, LLC et al (SD, filed 8/5/2022) – On August 25, 2022, Defendant Kilroy’s North America, LLC was dismissed from the lawsuit. Amanda C. Couture has appeared as counsel for the remaining defendants, Kilroy’s on Kirkwood and Kilroy’s Sports.

Oakley, Inc. v. Batter’s Box Training, LLC et al (SD, filed 8/11/2022) – Oakley filed Affidavits of Service on September 12, 2022, so we can anticipate the Defendant’s Answer in the next month.

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.

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