Carmel-based Heartland Sweeteners Receives Favorable Patent Ruling

23 Thursday Apr 2009

Posted by in Litigation, Patent

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The United States International Trade Commission (ITC) has unanimously upheld an initial ITC ruling that found Heartland Sweeteners, LLC did not infringe Tate & Lyle patents for sucralose.  In an initial determination announced in September 2008, ITC Judge Charles Bullock decisively rejected Tate & Lyle’s infringement allegations against Heartland Sweeteners, LLC.

As a result of this recent decision, which came down on April 6, 2009, Heartland is now the only manufacturer of table top sweeteners to have received an official and unanimous ITC ruling that it does not infringe patents for the manufacture of sucralose.

Carmel, Indiana-based Heartland is the first and largest alternative global manufacturer of high quality table top sucralose sweeteners. The company produces its own Nevella brand and private label products.  In 2008, Heartland introduced a natural sweetener under the Ideal brand. nevella

Heartland products are shipped to customers in the U.S., Canada, Mexico, South and Central America and throughout Europe.

The ITC is issuing limited exclusion orders against 11 sweetener companies that defaulted, admitted infringement, or did not participate in the investigation. Heartland is specifically excluded from that order, because the company responded early in the suit when other companies defaulted or failed to respond.

“The decision to incur the fees and costs necessary to fight this complex litigation has turned out to be the right course of action for Heartland. However, we fully expect that Tate & Lyle will continue its efforts which quash competition to their Splenda brand,” said Gelov.

Heartland was represented by attorney Bill O’Connor from the Indianapolis law firm of Dann Pecar Newman & Kleiman.

Source: Inside Indiana Business

Indiana RV Manufacturers in Trademark Battle

22 Wednesday Apr 2009

Posted by in Litigation, Trademark

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7jayco_eagle

Jayco, Inc., headquartered in Middlebury, IN (“Jayco”),  is suing Heartland Recreational Vehicles, LLC, of Elkhart, IN (“Heartland”), for trademark infringement and unfair competitive practices.  The case was brought in the Northern District of Indiana, Case No. 3:2009-cv-00171.

The suit alleges Heartland has violated federal trademark law by adopting the Eagle Ridge name for a line of vehicles.  Jayco claims to hold trademark rights in the EAGLE trademark since at least 1991.  Note that the suit is based on common-law trademark rights, as a federal trademark application was only filed by Jayco on March 9, 2009 (see abstract below).

eagle

Heartland filed an intent-to-use federal trademark application for EAGLE RIDGE on September 26, 2008.  It was published for opposition on February 17, 2009, which was probably the catalyst that brought Heartland’s intentions to the attention of Jayco (or Jayco’s attorney).

eagleridge

Jayco’s complaint demands that Heartland pay them all profits from Eagle Ridge products and stop using the EAGLE RIDGE name immediately.  I didn’t see any Eagle Ridge products on Heartland’s website (please correct me if I’ve missed anything), so the product line was either never initiated or it has already been pulled.

As we learned from Octomom (TM), the first to use a mark in commerce is generally the owner of that mark.  The primary exception is when an ITU application for a similar mark is filed prior to the adoption and use of the mark by another.  However, since Jayco has used the EAGLE mark since 1991, they almost certainly can claim priority rights.  Whether EAGLE RIDGE causes a likelihood of confusion with Jayco’s EAGLE mark will be determined by the court.  The goods (recreational vehicles) are very similar, so my suspicion is that the court would lean toward a conclusion that confusion exists.

I’ll keep you updated as developments occur, although this case feels like a settlement opportunity, particularly since Heartland doesn’t appear to have too much invested in their EAGLE RIDGE product line.

Source: WNDU

Nadya Suleman files trademark application for OCTOMOM – but isn't the first!

16 Thursday Apr 2009

Posted by in Just for Fun, Trademark

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Tags

octomomThe big (okay, most talked about) story in trademark news today is that controversial mother-of-eight (fourteen really) Nadya Suleman has filed a trademark application for OCTOMOM.  Well, it turns out somebody beat her to it!

An earlier  OCTOMOM trademark application, Serial # 77/689,864, has been filed by Super Happy Fun Fun, Inc.  However, it’s an intent-to-use (“ITU”) application.  An ITU application allows someone to obtain clearance and approval for federal registration of a trademark before committing to all of the costs of marketing and promoting the mark. That is, an ITU application permits one to go through the examination and clearance procedure of federal registration without having to show actual use in commerce.

So who has the priority rights to the OCTOMOM trademark, Nadya or Super Happy Fun Fun? (Of course, this question assumes that either have rights.)  Generally, the first to use a mark in commerce is the owner of that mark.  The primary exception is when an ITU application for a similar mark is filed prior to the adoption and use of the mark by another.  The Super Happy Fun Fun application was filed on March 12, 2009.  But I can recall mentions of Nadya as “Octomom” at least as far back as January.  Therefore, the ITU application may not qualify for the exception, as it wasn’t filed prior to adoption and use by Nadya.  She’ll have to show that there was use in commerce prior to March 12, 2009, but seeing that she was everywhere for awhile, that may be easy enough.

On a related note, why would she want to be called Octomom?  I never saw it as a particularly complimentary moniker.  And doesn’t she have fourteen children?  Quatorzemom?!?  I’m off to file a trademark application. 🙂

Dear KLF Legal,

05 Sunday Apr 2009

Posted by in Copyright, Intellectual Property

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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 new post category entitled “Dear KLF Legal”…enjoy!

Dear KLF Legal,

Q: Can I use public & historical names for characters I intend to use in a fictional book? Example: doll A is General Patton & doll B is Tai Babalonia.

A: Juliet:
“What’s in a name? That which we call a rose
By any other name would smell as sweet.”
Romeo and Juliet (II, ii, 1-2)

Intellectual property law will not generally prevent you from using the names of historical figures. While certain figures have protected their names as trademarks in connection with specific goods or services, names alone will not be protected.

If you start to go beyond use of a name into utilizing the likeness or persona of historical figures, you’ll want to consider not only trademark but “right of publicity” law. The right of publicity is generally defined as an individual’s right to control and profit from the commercial use of his/her name, likeness and persona. Take a look at “right of publicity” resources on the internet and familiarize yourself with the requirements.

Hope this helps.

KLF Legal

Dear KLF Legal

Q: My Chiropractor is accused of using another companies Q & A on her website. She in fact found the info elsewhere and the page the company says she took it from is not accessible unless you know it’s there – there are no links to it. The company sent a letter demanding she remove the content AND pay them $1400 – OR she can sign up with them to provide a site redesign and hosting for a nominal monthly fee. Can they do this? She’s removed the content but is what they’ve demanded acceptable?

A: They can absolutely attempt to do that. Here are some key things she should be thinking about:

First, can she identify the location where she found the info? If so, she could prove she did not copy their work. Even if the info is identical, if she didn’t copy them, she won’t be subject to copyright penalties.

Second, not all information is copyrightable. Facts and ideas are not. On the other hand, the layout of facts is copyrightable. She might want to have a copyright attorney review the information to determine whether it’s even something that can be protected by copyright law.

As far as whether what they’ve requested is acceptable, I’ll give you an idea about copyright damages. If their work has been registered with the U.S. Copyright Office (which presumably it was prior to sending the demand letter), they could be eligible to receive statutory damages ranging from $750-30,000. If the infringement is considered willful, the award could be up to $150,000. So some level of risk definitely exists if she’s shown to have copied their work.

Hope this helps.

KLF Legal

Judge David Hamilton selected to 7th Circuit Court of Appeals

17 Tuesday Mar 2009

Posted by in Federal Initiatives, Litigation

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hamiltonJudge David F. Hamilton has been selected by President Obama to fill the vacancy on the 7th Circuit Court of Appeals.  Judge Hamilton, formerly of the U.S. District Court for the Southern District of Indiana, is the first appellate court appointment made by President Obama.  The White House is planning to announce a several additional candidates over the next few weeks to fill some of the 17 vacancies on the appeals courts, which are just below the level of the Supreme Court.

Of course, we’ll be looking forward to reporting on his treatment of intellectual property cases.

Judge Hamilton took over as Chief Judge for the U.S. District Court for the Southern District of Indiana on Jan. 1, 2008.  Which means there is now an opening in that court for Chief Judge…I’ll update as I learn more.