March 2024 Indiana Intellectual Property Litigation Update

15 Friday Mar 2024

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

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This month’s Indiana IP litigation updates are dedicated to John Brannon, a legend of the Indiana IP community, who was laid to rest today. RIP John.

Read on below for updates on all pending Indiana copyright and trademark litigation. Leave a comment about which case(s) you are following most closely.

Noble Roman’s, Inc. v. AMI Stores Management, Inc. et al. (SD, filed 6/6/2021) – The lawsuit was dismissed with prejudice on February 16, 2024.

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – A 5-day jury trial was held from February 28, 2024 to March 4, 2024. The jury issued a verdict in favor of the plaintiff on March 5, 2024, finding that there was willful infringement and that the defendant had profits of $2,000,000 from the infringement.

Gabet et al. v. Amazon.com. Inc. et al. (ND, filed 1/20/2022) – Amazon is apparently getting fed up with this lawsuit and has gone on the offensive, seeking to recover around $16,000 in fees from opposing a prior motion, and a motion for sanctions against the plaintiff’s attorney based on a discovery dispute. A discovery conference was held on March 5, 2024, where they presumably were able to address and hopefully resolve the dispute.

The Evolutionary Level Above Human, Inc. v. Havel et al (ND, filed 5/18/2022) – On February 21, 2024 and February 27, 2024, the Court ruled on several pending motions. Defendant Bartel must file a written response by March 22, 2024, explaining why he should not be sanctioned to pay Plaintiff’s costs and attorneys’ fees and/or be restricted in his ability to file any further motions in this case without first seeking leave of court. Defendant Havel has been ordered to confer with the plaintiff’s counsel to resolve a discovery dispute prior to March 31, 2024.

Oakley, Inc. v. Batter’s Box Training, LLC et al (SD, filed 8/11/2022) –  No update this month. The lawsuit is still awaiting the Court’s action on the plaintiff’s Stipulation of Dismissal filed on January 18, 2024.

Honest Abe Roofing franchise, Inc. v. DCH & Associates, LLC et al. (SD, filed 9/7/2022) –  No update this month.

The Center for Gestalt Development, Inc. v. Bowman (SD (11/09/2022) – No update this month.  

1.4G Holdings, LLC v. North Central Industries, Inc. et al. (SD 1/05/2023) –  The Court has ordered the filing of dismissal documents by May 10, 2024.

Sak Group, Inc. v. Blue Hill Hospitality, Inc. (ND 4/25/2023) – No update this month.

National College Resources Foundation v. The Strong Friends LLC et al. (ND 5/4/2023) –  No update this month.

Sadowski v. Restoration 1 by J&D, LLC (SD 7/12/2023) –  The plaintiff filed an Amended Complaint on February 21, 2024. Defendant filed a notice of extension of time until March 22, 2024 to respond to the Amended Complaint.

Nickel and Dimes Incorporated v. Noah’s Arcade LLC et al (ND 7/25/2023) – A Joint Motion for Protective Order was filed on March 13, 2024. No other updates this month.

Hoffman v. Lauth Investigations International Inc. (SD 9/18/2023) – The Court has received notice of settlement and ordered the filing of dismissal papers by April 27, 2024. The settlement conference scheduled for April 10, 2024 has been vacated.

Banjo Corporation v. Green Leaf, Inc. (SD 9/29/2023) – Donald G. Orzeske has entered an appearance on behalf of the defendant.

Perma-Green Supreme, Inc. v. Dr. Permagreen, LLC et al. (ND 10/06/2023) – The plaintiff filed a stipulation to the selection of a mediator on March 1, 2024.

Secada Medical LLC d/b/a Ventris Medical, LLC v. Nexxt Spine, LLC (SD 11/01/2023) – No update this month. Dismissal papers are due by March 24, 2024.

Radic v. AllCity Adjusting LLC et al (ND 11/03/2023) –  The defendants were served on February 15, 2024, and their answer was due on March 7, 2024, which they did not file. The plaintiff filed a Motion for Clerks Entry of Default on March 11, 2024, and a Clerks Entry of Default was issued on March 12, 2024.

Tempur Sealy International, Inc. et al. v. Luxury Mattress & Furniture, LLC (ND 11/09/2023) –  The plaintiff was required to mail its prior filed motions to the defendant’s registered agent, which they completed on March 5, 2024.

Stross v. Homestead Properties, Inc. (SD 11/09/2023) – On February 22, 2024, the plaintiff filed its responses to two Motions to Dismiss filed last month, and the defendant filed its replies on February 29, 2024. The plaintiff tendered a Case Management Plan on March 8, 2024.

Guangzhou Shima Decoration Materials Co., Ltd v. Shenzhen Ruimingxiang Technology Co., Ltd. (SD 1/08/2024) – No update this month.

Nutramax Laboratories, Inc. et al v. CNB Retailers, LLC et al. (ND 2/08/2024) – The defendants filed an Answer on March 1, 2024, which was subsequently stricken from the record on March 12, 2024 for apparent inadequacies. The Court has afforded the defendants until May 10, 2024 to secure counsel or face sanctions. Uly S. Gunn has appeared pro hac vice on behalf of the plaintiff.

Baskin-Robbins Franchising LLC et al v. Blu Moo Ice Cream Inc. et al. (SD 2/14/2024) – Matthew J. Kramer has appeared pro hac vice on behalf of the plaintiff. The defendants were served on March 13, 2024.

Sadowski v. Circle City Broadcasting I, LLC d/b/a WISH-TV (SD 2/21/2024) – The defendant was served on March 1, 2024.

Valcrum, LLC v. Dexter Axle Company, LLC (SD 3/1/2024) – Angela Kelver Hall and Jason M. Rauch have appeared on behalf of the defendant.

February 2024 Updates – January 2024 Updates

December 2023 Updates – December 2022 Updates –  December 2021 Updates

Trade Dress Lawsuit filed in Indiana over Trailer Axle Hubcaps

04 Monday Mar 2024

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

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An Elkhart, Indiana-based hubcap manufacturer has been sued for trademark and trade dress infringement. The plaintiff, Valcrum of Cypress, Texas, manufactures hubcaps for medium-duty (8,000-16,000 pounds) trailer axles. Valcrum’s axles use a distinctive design consisting of a “signature red hex bezel having a hexagonal outer perimeter and an inner diameter.”

The defendant, Dexter Axle Company, has an extensive business history with Valcrum. The ultimate result of the breakdown of their business relationship, as detailed in the Complaint below, was Dexter producing its own line of axle hubcaps, which allegedly violate the plaintiff’s trademark and trade dress rights. The Complaint also alleges numerous violations of a nondisclosure agreement executed by the parties in 2020.

Stay tuned for updates.

Valcrum, LLC v. Dexter Axle Company, LLC

Court Case Number: 3:24-cv-00190-DRL-MGG
File Date: March 1, 2024
Plaintiff: Valcrum, LLC
Plaintiff Counsel: Andrew J. Chabot of Botkin & Hall, LLP
Defendant: Dexter Axle Company, LLC
Cause: Breach of Contract, Federal Trademark Infringement, Federal Trade Dress Infringement, Federal Unfair Competition, Federal False Designation of Origin, Common Law Trademark Infringement, Common Law Trade Dress Infringement, Common Law Unfair Competition, Unjust Enrichment
Court: Northern District of Indiana
Judge: Damon R. Leichty
Referred To: Michael G. Gotsch, Sr.

Complaint:

WISH-TV sued over New York Garbage Truck Photograph

23 Friday Feb 2024

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

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Photographers getting paid what they’re owed by news organizations has always been an issue. Just ask Peter Parker.

WISH-TV, an Indianapolis-based local television station, is accused of copying a photograph of a New York garbage truck and reposting it to WISH-TV’s website/social media. The original photograph had been included in a NY Post article via a paid license. In addition to editing the photograph to overlay pictures of three sanitation workers, WISH-TV also cropped out the photographer’s attribution (see Complaint below).

Unable to negotiate a license fee, the photographer is now suing WISH-TV for copyright infringement and removal of the attribution.

If you want a photograph of a random New York garbage truck, either: a) take the photo yourself, b) pay someone to take the photo for you, c) pay someone who has already taken such a photo to use their photo, or d) use AI to create the photo because who will really know, it’s just a random garbage truck. Do not: e) find a photo on Google Images, crop out the photographer’s logo, and post it on your website.

The “news reporting” fair use defense likely won’t work for WISH-TV, because WISH-TV’s article was not reporting about this specific garbage truck but rather just took a random garbage truck photograph and used it in a story about sanitation worker overtime hours. If WISH-TV had been reporting about this particular garbage truck, or even the photographer, they might be able to claim a fair use defense, although they would still need to explain why the photographer’s attribution was cropped.

Stay tuned for updates.

Sadowski v. Circle City Broadcasting I, LLC d/b/a WISH-TV

Court Case Number: 1:24-cv-00324-JRS-TAB
File Date: February 21, 2024
Plaintiff: Christopher Sadowski
Plaintiff Counsel: Michael A. Swift of Maginot, Moore & Beck LLP
Defendant: Circle City Broadcasting I, LLC d/b/a WISH-TV
Cause: Copyright Infringement, Removal or Alteration of Copyright Management Information
Court: Southern District of Indiana
Judge: James R. Sweeney II
Referred To: Tim A. Baker

Complaint:

February 2024 Indiana Intellectual Property Litigation Update

15 Thursday Feb 2024

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

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The previous month brought closure for several Indiana intellectual property lawsuits, with a higher than usual number of dismissals. Two new trademark lawsuits were filed since last mont’s update, involving the unauthorized sale on Amazon of animal health supplements and a breach of an ice cream shop franchise agreement. Read on below for the latest updates on all pending Indiana copyright and trademark lawsuits:

Noble Roman’s, Inc. v. AMI Stores Management, Inc. et al. (SD, filed 6/6/2021) – A Stipulation of Dismissal with prejudice was filed by the Plaintiff on February 8, 2024.

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – The Defendant filed a Corporate Disclosure Statement on January 29, 2024.

Gabet et al. v. Amazon.com. Inc. et al. (ND, filed 1/20/2022) – A telephonic discovery conference was held on January 29, 2024, followed by several discovery-related motions. Subsequently, the Court reset a telephonic discovery conference scheduled for March 1, 2024 to an in-person discovery conference on March 5, 2024.

The Evolutionary Level Above Human, Inc. v. Havel et al (ND, filed 5/18/2022) – One of the Plaintiff’s attorneys filed a motion to withdraw on January 30, 2024. No substantive update this month.

Oakley, Inc. v. Batter’s Box Training, LLC et al (SD, filed 8/11/2022) –  The Plaintiff filed a Stipulation of Dismissal against all Defendants on January 18, 2024.

Honest Abe Roofing franchise, Inc. v. DCH & Associates, LLC et al. (SD, filed 9/7/2022) –  On February 8, 2024, the Plaintiff filed a Motion for Default Judgment. “Head-in-the-sand” time is running out quickly for the Defendants in this lawsuit.

The Center for Gestalt Development, Inc. v. Bowman (SD (11/09/2022) – The parties held a Discovery Conference on January 25, 2024 to determine the appropriate location for the deposition of the Plaintiff.

1.4G Holdings, LLC v. North Central Industries, Inc. et al. (SD 1/05/2023) –  A Status Conference was held on February 9, 2024. The parties apparently have one remaining settlement term to negotiate.

Albert’s Diamond Jewelers, Inc. v. AaLand Diamond Jewelers LLC (ND 2/01/2023) – The lawsuit was dismissed via a Joint Stipulation to Dismiss on January 26, 2024.

Sak Group, Inc. v. Blue Hill Hospitality, Inc. (ND 4/25/2023) – On February 1, 2024, Magistrate Judge John E. Martin was added in place of Magistrate Judge Joshua P. Kolar. Candace C. Dickson has withdrawn from representation of the Plaintiff.

National College Resources Foundation v. The Strong Friends LLC et al. (ND 5/4/2023) –  No update this month.

Sadowski v. Restoration 1 by J&D, LLC (SD 7/12/2023) –  No update this month.

Nickel and Dimes Incorporated v. Noah’s Arcade LLC et al (ND 7/25/2023) – Lyle R. Hardman and Eric M. Wilkins have entered an appearance on behalf of the Defendants and their original counsel has withdrawn.

Hoffman v. Lauth Investigations International Inc. (SD 9/18/2023) – The Plaintiff filed its Preliminary Witness and Exhibit List on January 26, 2024.

Banjo Corporation v. Green Leaf, Inc. (SD 9/29/2023) – The parties filed the Preliminary Exhibit and Witness Lists on February 12, 2024.

Perma-Green Supreme, Inc. v. Dr. Permagreen, LLC et al. (ND 10/06/2023) – No update this month.

Secada Medical LLC d/b/a Ventris Medical, LLC v. Nexxt Spine, LLC (SD 11/01/2023) – The parties have settled and must file dismissal papers by March 24, 2024.

Radic v. AllCity Adjusting LLC et al (ND 11/03/2023) –  The Plaintiff has been granted until March 3, 2024, to serve the Defendants.

Tempur Sealy International, Inc. et al. v. Luxury Mattress & Furniture, LLC (ND 11/09/2023) –  The Plaintiff filed an Amended Motion for Default Judgment on February 2, 2024.

Stross v. Homestead Properties, Inc. (SD 11/09/2023) – Here’s something we don’t often see…a Defendant has decided to push back substantively on a photography copyright lawsuit rather than immediately settle. On February 4, 2024, the Defendant filed two Motions to Dismiss, a jurisdictional challenge under 12(b)(1) and a failure to state a claim under 12(b)(6). Just like that, this lawsuit went from dull to very interesting. The Defendant is represented by Charles E. McFarland.

Matsumoto v. Pho Real LLC (SD 11/15/2023) – The lawsuit was dismissed on January 25, 2024 pursuant to a Joint Stipulation of Dismissal.

Watson Music Group, LLC v. Borshoff, Inc. (SD 11/22/2023) – The lawsuit was dismissed on February 13, 2024 via a Stipulation of Dismissal filed by the Plaintiff.

Guangzhou Shima Decoration Materials Co., Ltd v. Shenzhen Ruimingxiang Technology Co., Ltd. (SD 1/08/2024) – An Amended complaint was filed on January 12, 2024.

Nutramax Laboratories, Inc. et al v. CNB Retailers, LLC et al. (ND 2/08/2024) – No update yet.

Baskin-Robbins Franchising LLC et al v. Blu Moo Ice Cream Inc. et al. (SD 2/14/2024) – No update yet.

January 2024 Updates

December 2023 Updates – December 2022 Updates –  December 2021 Updates

Baskin-Robbins sues Ex-Franchisee over Broad Ripple, Greenwood Ice Cream Shops

15 Thursday Feb 2024

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

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The owner of Baskin Robbins ice cream shops in Broad Ripple and Greenwood, Indiana, has been accused of violating the terms of its Baskin-Robbins franchise agreement. The prior franchise relationship was terminated in June 2023 due to nonpayment of about $50,000, but the ice cream shops continued to operate as Baskin Robbins while selling product from a competing ice cream brand.

Subsequent cease-and-desist communications and collection attempts have been unsuccessful, and Baskin Robbins now seeks the intervention of the federal court for the Southern District of Indiana.

Stay tuned for updates.

Baskin-Robbins Franchising LLC et al v. Blu Moo Ice Cream Inc. et al.

Court Case Number: 1:24-cv-00293-JRS-CSW
File Date: February 14, 2024
Plaintiff: Baskin-Robbins Franchising LLC, BR IP Holder LLC
Plaintiff Counsel: Justin O. Sorrell of Riley Bennett Egloff LLP
Defendant: Blue Moo Ice Cream Inc., Robert Holocher
Cause: Breach of Contract, Breach of Personal Guarantees, Federal Trademark Infringement, Federal Unfair Competition
Court: Southern District of Indiana
Judge: James R. Sweeney II
Referred To: Crystal S. Wildeman

Complaint: