31 Saturday Jul 2010
The following Intellectual Property cases were filed in July 2010. Stay tuned for updates.
Northern District of Indiana
1A Smart Start v. Indiana Safe Start
Sweetwater Sound v. J2 Electronics Group
Southern District of Indiana
Brandt Industries v. Pitonyak Machinery Corporation
Brian Andr’e Warren v. Xlibris Corporation
30 Friday Jul 2010
Posted in Bloggers, Copyright, Dear KLF Legal, Intellectual Property, Musicians, Trademark
From time to time, people write in with short questions about intellectual property law. We’re always happy to help educate the public about their IP rights, so KLF Legal tries to respond to each inquiry as best we can. The answers tend to be brief since the questions don’t typically include a lot of information. However, I thought it might be helpful to share these questions from time to time in a post category entitled “Dear KLF Legal”…enjoy!
Is there an equivalent form of “fair use” for logos? It really seems unreasonable that I can’t make use of the three lines that make up a Nike “swoosh” without permission.
There is a doctrine of “fair use” in trademark law, but it deals more with third-party use of another company’s trademarks for advertising or nominative uses rather than the ability to use similar trademark elements. One pillar of trademark law, which surprisingly is rarely mentioned, is the avoidance of consumer confusion. When people see the “swoosh”, they know they’re purchasing a high-quality product from Nike Inc. If every shoe company, particularly those that create poor quality products, started using a swoosh, a consumer would no longer be able to identify high-quality products with the swoosh trademark.
What’s the legality of music bloggers posting sample mp3’s without express permission?
A more detailed answer on legality will depend on whether the mp3s are available for download or only for listening. From a “real world” viewpoint, record companies typically have not been enforcing copyrights against music blogs because they view them as free advertising. The economic significance of MP3 blogs is small compared to P2P networks.
What is the cheapest and easiest way to copyright my content? From a blog post to a word document.
Once your original work is “fixed in a tangible medium of expression” (i.e. you have finished your blog post or word document), copyright protection is automatic and free. Hurrah. However, registration with the U.S. Copyright Office brings additional benefits, perhaps most importantly the ability to enforce your rights against infringers in federal court. Registration is quick and inexpensive ($35) so I usually recommend it for commercial works.
25 Sunday Jul 2010
Tags
Christopher A. Nuechterlein, Common Law Trademark Infringement, False Designation of Origin, Federal Trademark Infringement, Theresa L. Springmann, Unfair Competition
1A Smart Start Inc. v. Indiana Safe Start Inc.
Good ol’ fashion trademark brawl over in the “electronic breath activated ignition lock for automobiles” industry. In one corner, Smart Start. In the other corner, Safe Start. There is apparently evidence of actual consumer confusion.
Leave a comment if you’d like a full copy of the complaint.
Court Case Number: 3:10-cv-00292-TLS-CAN
File Date: Friday, July 16, 2010
Plaintiff: 1A Smart Start Inc.
Plaintiff Counsel: Gerald W. Roberts of Thompson & Knight LLP, Remy Davis
Defendant: Indiana Safe Start Inc., Thomas Bjornstad
Cause: Federal Trademark Infringement, Common Law Trademark Infringement, False Designation of Origin, Unfair Competition
Court: Northern District of Indiana
Judge: Judge Theresa L. Springmann
Referred To: Magistrate Judge Christopher A. Nuechterlein
14 Wednesday Jul 2010
Posted in Indiana, Litigation, Southern District of Indiana, Trademark
Tags
Debra McVicker Lynch, Estoppel by Laches, False Designation of Origin, Tanya Walton Pratt, Unfair Competition
Brandt Industries v. Pitonyak Machinery Corporation
This is a declaratory judgment action by Plaintiff for the unregistered BRANDT mark. Both parties have used the mark for many decades in different locations. Plaintiff is a Canadian company operating in the U.S. Leave a comment for a full copy of the complaint.
Court Case Number: 1:10-cv-00857-TWP -DML
File Date: Tuesday, July 06, 2010
Plaintiff: Brandt Industries Ltd.
Plaintiff Counsel: Carrie A. Shufflebarger of Thompson Hine LLP
Defendant Counsel: Aaron M. Staser, Paul B. Hunt
Defendant: Pitonyak Machinery Corporation
Cause: Declaration of Non-Infringement, Declaration of Priority, Declaration of Estoppel by Laches, Trademark Infringement, Unfair Competition and False Designation of Origin
Court: Southern District of Indiana
Judge: Judge Tanya Walton Pratt
Referred To: Magistrate Judge Debra McVicker Lynch
13 Tuesday Jul 2010
Posted in Copyright, Indiana, Intellectual Property, Litigation, Trademark
An Indianapolis lawyer who created the game “Chronology” is accusing Fundex Games Ltd. of trademark infringement.
Jane Ruemmele, a Marion County public defender, filed suit March 24 in U.S. District Court of Southern Indiana. The lawsuit alleges breach of contract, trademark infringement, use of a counterfeit mark, unfair competition, copyright infringement, trademark dilution and forgery.
Ruemmele is seeking damages, plus a judgment for the return or destruction of all products bearing the Chronology trademark.
Fundex is a family-owned company based in Plainfield that sells licensed games, plus standard games such as checkers and chess. Ruemmele holds the trademark and copyright to the game Chronology, which she first licensed in 1995.
Fundex acquired the licensing rights to “Chronology” in October of 2007 with the purchase of Great American Puzzle Factory, according to the lawsuit. The deal that Ruemmele struck with Great American in 1995 provides her royalty payments of 6 percent of net sales. The rate rises to 8 percent after the first 100,000 games are sold.
“Fundex has sold numerous units of the card game since its acquisition of Great American,” the lawsuit alleges, but the company has provided no royalty statements or payments since October 2008.
Ruemmele also believes the payments Fundex made up to that point were less than required under the license agreement.
The lawsuit says Ruemmele attempted to work with Fundex to extend the license agreement past an expiration date of March 31, 2008, or to strike a new deal. “However, Fundex continually refused to return calls or correspondence from Ruemmele or her attorney while Fundex continued to sell and market the card game.”
Jonathan Polak, the Taft Stettinius & Hollister LLP attorney representing Ruemmele, said his client isn’t sure exactly how many copies of Chronology have been sold by Fundex—that’s why she’s seeking an audit. The contract with Great American gave Ruemmele the right to inspect company sales records.
Polak wouldn’t say how much “Chronology” had earned before Fundex acquired the game.
Ruemmele’s relationship with Great American, formerly based in Connecticut, suggests the game was successful.
Ruemmele and Great American renewed the contract in 2000 and again on Oct. 15, 2007, shortly before the sale to Fundex.
Great American also paid Ruemmele an annual, guaranteed advance of $1,000, according to the license contract.
Source: Indianapolis Business Journal
Indiana Intellectual Property Blog 