Indiana Trademark Litigation Update – Norwood Promotional Products v. KustomKoozies

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Norwood Promotional Products v. KustomKoozies, LLC

Court Case Number: 1:09-cv-01378-LJM-JMS

File Date: Tuesday, November 03, 2009

Plaintiff: Norwood Promotional Products, LLC

Plaintiff Counsel: Jonathan G. Polak, Keirian A. Brown of Taft Stettinius & Hollister LLP

Defendant: KustomKoozies, LLC, Steve Liddle

Cause: Trademark Infringement, Federal Trademark Dilution, Unfair Competition, Breach of Contract and Corrective Advertising Damages

Court: Southern District of Indiana

Judge: Judge Larry J. McKinney

Referred To: Judge Jane Magnus-Stinson

Indiana Patent Income Tax Exemption – IC 6-2-3-21.7

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Inventors, patent owners, and their lawyers and accountants should be aware of the Indiana Patent Income Exemption, Indiana Code 6-3-2-21.7.

The exemption aims to encourage innovation by giving entrepreneurs and small businesses a break on Indiana state income taxes. Indiana was the first state to offer this type of incentive.  In an effort to strengthen the state’s existing focus on biotech, pharmaceutical, medical device and equipment companies, the law strives to encourage new patents from Indiana companies and to make the state more attractive to new companies looking for a profitable marketplace.

The law grants a tax exemption on patent income, which includes licensing fees, royalties, patent sale or patent-covered- product sales. Note that the exemption is available only to businesses with less than 500 employees and only covers utility and plant patents, since design patents focus on ornamental features and exclude functional innovations.

IC 6-3-2-21.7
Exemption for certain income derived from patents
Sec. 21.7. (a) This section applies to a qualified patent issued to a taxpayer after December 31, 2007.
(b) As used in this section, “invention” has the meaning set forth in 35 U.S.C. 100(a).
(c) As used in this section, “qualified patent” means:
(1) a utility patent issued under 35 U.S.C. 101; or
(2) a plant patent issued under 35 U.S.C. 161;
after December 31, 2007, for an invention resulting from a development process conducted in Indiana. The term does not include a design patent issued under 35 U.S.C. 171.
(d) As used in this section, “qualified taxpayer” means a taxpayer that on the effective filing date of the claimed invention:
(1) is either:
(A) an individual or corporation, if the number of employees of the individual or corporation, including affiliates as specified in 13 CFR 121.103, does not exceed five hundred (500) persons; or
(B) a nonprofit organization or nonprofit corporation as

specified in:
(i) 37 CFR 1.27(a)(3)(ii)(A) or 37 CFR 1.27(a)(3)(ii)(B); or
(ii) IC 23-17; and
(2) is domiciled in Indiana.
(e) Subject to subsections (g) and (h), in determining adjusted gross income or taxable income under IC 6-3-1-3.5 or IC 6-5.5-1-2, a qualified taxpayer is entitled to an exemption from taxation under IC 6-3-1 through IC 6-3-7 for the following:
(1) Licensing fees or other income received for the use of a qualified patent.
(2) Royalties received for the infringement of a qualified patent.
(3) Receipts from the sale of a qualified patent.
(4) Subject to subsection (f), income from the taxpayer’s own use of the taxpayer’s qualified patent to produce the claimed invention.
(f) The exemption provided by subsection (e)(4) may not exceed the fair market value of the licensing fees or other income that would be received by allowing use of the qualified taxpayer’s qualified patent by someone other than the taxpayer. The fair market value referred to in this subsection must be determined in each taxable year in which the qualified taxpayer claims an exemption under subsection (e)(4).
(g) The total amount of exemptions claimed under this section by a qualified taxpayer in a taxable year may not exceed five million dollars ($5,000,000).
(h) A taxpayer may not claim an exemption under this section with respect to a particular qualified patent for more than ten (10) taxable years. Subject to the provisions of this section, the following amount of the income, royalties, or receipts described in subsection (e) from a particular qualified patent is exempt:
(1) Fifty percent (50%) for each of the first five (5) taxable years in which the exemption is claimed for the qualified patent.
(2) Forty percent (40%) for the sixth taxable year in which the exemption is claimed for the qualified patent.
(3) Thirty percent (30%) for the seventh taxable year in which the exemption is claimed for the qualified patent.
(4) Twenty percent (20%) for the eighth taxable year in which the exemption is claimed for the qualified patent.
(5) Ten percent (10%) each year for the ninth and tenth taxable year in which the exemption is claimed for the qualified patent.
(6) No exemption under this section for the particular qualified patent after the eleventh taxable year in which the exemption is claimed for the qualified patent.
(i) To receive the exemption provided by this section, a qualified taxpayer must claim the exemption on the qualified taxpayer’s annual state tax return or returns in the manner prescribed by the department. The qualified taxpayer shall submit to the department all information that the department determines is necessary for the determination of the exemption provided by this section.

(j) On or before December 1 of each year, the department shall provide an evaluation report to the legislative council, the budget committee, and the Indiana economic development corporation. The evaluation report must contain the following:
(1) The number of taxpayers claiming an exemption under this section.
(2) The sum of all the exemptions claimed under this section.
(3) The North American Industry Classification System code for each taxpayer claiming an exemption under this section.
(4) Any other information the department considers appropriate, including the number of qualified patents for which an exemption was claimed under this section.
The report required under this subsection must be in an electronic format under IC 5-14-6.

For a full breakdown of the law,  see IP Today.

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Indiana University to utilize “Facebook for Scientists”

BLOOMINGTON, Ind. – Indiana University has received more than $1.8 million from the National Institutes of Health to collaborate on a $12.2 million, seven-university project designed to network researchers around the country.

samplegateWhile the proposed new networking system will contain authentication mechanisms to protect sensitive data and intellectual property, it is being described as a Facebook for scientists.

IU will be implementing VIVO, a networking template currently in place at Cornell University that brings together publicly available information on the people, departments, graduate fields, facilities and other resources that collectively make up the research and scholarship environment in all disciplines at Cornell.

“This could gather all the related information for one researcher into one place and further links to any other related semantic datasets. Linking and formal representation generate great power to realize more intelligent knowledge discovery.”

Click here for full story.

A Legal Primer for Bloggers – Anonymity

A Legal Primer for Bloggers, Part 4 – Anonymity

This post continues a series dealing specifically with the legal issues that bloggers should be thinking about.  Part 4, Anonymity, is especially timely, as Indianapolis-based Butler University has recently initiated a lawsuit against an anonymous blogger for making allegedly libelous and defamatory statements about school administrators on his blog, The True BU. The story is covered in detail at Inside Higher Ed. For a nice timeline of the buildup to the Butler lawsuit, see Brad Ward’s post over at SquaredPeg.

First, it’s well established that there is a right to blog anonymously in the United States.  The Supreme Court has repeatedly upheld the First Amendment right to speak anonymously, which applies also to blogs: “author is generally free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible. Whatever the motivation may be…the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment” (McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995)).

bloganon

However, having the right to blog anonymously doesn’t ensure that you’ll be successful in doing so.  As the aforementioned Butler case shows, there’s a good likelihood that your identity could be discovered. There are plenty of tips and techniques readily available online to both help you maintain your anonymity and how to peek behind the veil of an anonymous blogger. Side-by-side in the Google search results are both A Technical Guide to Anonymous Blogging and How to Unmask an Anonymous Blogger.  If you try to blog anonymously through a third-party service, you may be subject to subpoenas seeking your identity from your blogging service provider.  If you receive notice of a subpoena and you wish to retain your anonymity, you should contact an attorney about filing a motion to quash the subpoena. Many courts require the subpoenaing party to show a compelling need for the information that outweighs the speakers’ constitutional rights to free speech and privacy.

Here are some quick tips if you want to begin blogging anonymously (see EFF’s “How to Blog Safely” for a lengthy discussion of these tips):

  1. Use a Pseudonym and Don’t Give Away Any Identifying Details
  2. Use Anonymizing Technologies
  3. Use Ping Servers
  4. Limit Your Audience
  5. Don’t Be Googleable
  6. Register Your Domain Name Anonymously

anonymous

The next (and final) post in this series will cover privacy rights.  Be aware what you can and cannot say about others, distinguishing between private and public individuals.

A Legal Primer for Bloggers

Part 1: Introduction

Part 2: Intellectual Property

Part 3: Defamation

Part 4: ANONYMITY

Part 5: Privacy