Indianapolis Advertising Agency sued over Song Clip in 2016 Facebook Post

28 Tuesday Nov 2023

Posted by in Advertising Law, Copyright, Indiana, Indianapolis, Intellectual Property, Litigation, Musicians, Southern District of Indiana

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An Indianapolis-based advertising agency is being sued for using a 5-second song clip in a promotional video posted on their Facebook page on March 11, 2016.

The plaintiff, a musical group called the Quad City DJ’s, alleges that they first discovered the “infringing” post on June 20, 2023. Approximately 5-6 seconds of the plaintiff’s song, “Space Jam,” are played in the background of a video promoting Dribble to Work Day during the NCAA Women’s Final Four. The short promotional video, still viewable here, has only 294 views since being published in 2016. How many of those views are the plaintiff and plaintiff’s counsel?

This lawsuit should serve as a warning to all businesses to go back and review old social media posts, checking for any unauthorized photos, music, videos, etc. Old social media content is now being scanned by AI bots, even “watching” old videos, and a federal lawsuit could always be lurking. While real damages might be low, copyright law allows for a plaintiff to recover statutory damages, legal costs, and attorney fees.

Consider whether it’s time for your business to delete some old social media content.

Watson Music Group, LLC v. Borshoff, Inc.

Court Case Number: 1:23-cv-02117-TWP-KMB
File Date: November 22, 2023
Plaintiff: Watson Music Group, LLC d/b/a Quadrasound Music
Plaintiff Counsel: Craig Sanders, Esq. of Sanders Law Group
Defendant: Borshoff, Inc.
Cause: Direct Copyright Infringement
Court: Southern District of Indiana
Judge: Tanya Walton Pratt
Referred To: Kellie M. Barr

Complaint:

Photography Lawsuit filed against Carmel Vietnamese Restaurant

16 Thursday Nov 2023

Posted by in Copyright, Indiana, Indianapolis, Intellectual Property, Litigation

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It seems we can’t go more than a few days without a new photography copyright lawsuit in Indiana. The defendant this time is a Carmel, Indiana-based Vietnamese restaurant called Pho Real. They apparently used one of the plaintiff’s photographs of noodles, which I’m guessing they found on Google Images, on their restaurant’s website without authorization.

Businesses, you should prioritize an immediate audit of your company’s website to determine whether you have authority (via ownership, license, fair use, etc.) to use every photograph. If not, even if it’s just a blurry partial photo, it seems that your use could quickly become the subject of a federal copyright lawsuit.

Matsumoto v. Pho Real LLC

Court Case Number: 1:23-cv-02059-SEB-KMB
File Date: November 15, 2023
Plaintiff: Shoichi Matsumoto
Plaintiff Counsel: Jay Campbell Miller of SRIPLAW, P.A.
Defendant: Pho Real LLC
Cause: Copyright Infringement
Court: Southern District of Indiana
Judge: Sarah Evans Barker
Referred To: Kellie M. Barr

Complaint:

November 2023 Indiana Intellectual Property Litigation Update

15 Wednesday Nov 2023

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

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The last month in Indiana Intellectual Property litigation definitely took on a Halloween theme, including new cases involving unauthorized mattresses, plaster falling off the ceiling, bovine collagen and surgical kits. One trademark lawsuit looked set for trial in early November but was continued until February due to the lead counsel contracting COVID. Many lawsuits have a telephonic conference scheduled over the next 30 days, so perhaps we’ll see some significant updates early next year. Read on for updates on all pending Indiana trademark and copyright litigation. Leave a comment below and let us know which cases you are closely following.

Sears Authorized Hometown Stores, LLC v. Lynn Retail, Inc. et al. (SD, filed 6/4/2021) – A Telephonic Status Conference is scheduled on November 15, 2023.

Noble Roman’s, Inc. v. AMI Stores Management, Inc. et al. (SD, filed 6/6/2021) –  A Settlement Conference was held on November 9, 2023, and the Court reports that the case is settled. The parties have 90 days to file a Stipulation of Dismissal.

Forest River, Inc. v. inTech Trailers, Inc. (ND, filed 8/31/2021) – This lawsuit was lurching toward a rare trademark trial on November 6, 2023, with over 20 filings since last month’s update, including motions, responses, proposed voir dire, objections, and more. However, due to an even more rare Emergency Motion to Continue Trial Due to Covid, the trial has been moved to February 27, 2024.

Gabet et al. v. Amazon.com. Inc. et al. (ND, filed 1/20/2022) – A Telephonic Discovery Conference was held on November 2, 2023.

The Evolutionary Level Above Human, Inc. v. Havel et al (ND, filed 5/18/2022) – Several motions and responses were filed in the last month.

Oakley, Inc. v. Batter’s Box Training, LLC et al (SD, filed 8/11/2022) –  No update this month.

Honest Abe Roofing franchise, Inc. v. DCH & Associates, LLC et al. (SD, filed 9/7/2022) –  The plaintiff filed a Motion for Entry of Default on October 20, 2023. The Clerk’s Entry of Default was entered on November 8, 2023.

The Center for Gestalt Development, Inc. v. Bowman (SD (11/09/2022) – On October 27, 2023, the Court denied Defendant Bowman’s Motion for Leave to File Early Summary Judgment Motion.

1.4G Holdings, LLC v. North Central Industries, Inc. et al. (SD 1/05/2023) – The defendants filed their answer on November 2, 2023, including affirmative defenses and counterclaims seeking cancellation of the plaintiff’s trademark registrations. The defendants are represented by Meaghan K. Haller, Alex E. Gude, and Jessica L. Meek of Dentons Bingham Greenebaum LLP and John H. Brooke of Brooke & Struble, P.C.

Albert’s Diamond Jewelers, Inc. v. AaLand Diamond Jewelers LLC (ND 2/01/2023) – The parties filed a Motion to Stay on October 24, 2023. The parties have been ordered to file dismissal papers by January 25, 2024.

Delta Faucet Company v. Watkins et al. (SD 2/01/2023) – On November 1, 2023, the Court ordered Delta to file a Notice by November 15, 2023, which addresses whether the Court has personal jurisdiction over the named defendant.

Taylor Shaye Designs LLC v. Shein Distribution Corp. (SD 4/11/2023) – The plaintiff filed a Stipulation of Dismissal on November 14, 2023.

HealthSmart Foods, Inc. v. Sweet Nothings, Inc. et al. (SD 4/13/2023) – A Status Conference was held on November 6, 2023 and another is scheduled on November 27, 2023. On November 3, 2023, the defendants filed their response to the plaintiff’s Motion for Preliminary Injunction. The response accuses the plaintiff of fraud on the USPTO, unreasonable delay, and unclean hands. It further emphasizes that there has been no evidence of consumer confusion. The plaintiff’s reply to their Motion for PI, due shortly, is now a must-read document.

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) –  A Telephonic Rule 16 Preliminary Pretrial Conference was held on November 14, 2023. Daniel Joseph Layden has entered an appearance on behalf of the defendant.

Nickel and Dimes Incorporated v. Noah’s Arcade LLC et al (ND 7/25/2023) – A Telephonic Rule 16 Preliminary Pretrial Conference is scheduled on November 29, 2023.

Hoffman v. Lauth Investigations International Inc. (SD 9/18/2023) – The time to respond to the Complaint has been extended to November 22, 2023.

Banjo Corporation v. Green Leaf, Inc. (SD 9/29/2023) – A Telephonic Rule 16 Preliminary Pretrial Conference is scheduled on December 19, 2023.

Perma-Green Supreme, Inc. v. Dr. Permagreen, LLC et al. (ND 10/06/2023) – The time to respond to the Complaint has been extended to November 27, 2023. A Telephonic Rule 16 Preliminary Pretrial Conference is scheduled on December 14, 2023.

Secada Medical LLC d/b/a Ventris Medical, LLC v. Nexxt Spine, LLC (SD 11/01/2023) – No update yet.

Radic v. AllCity Adjusting LLC et al (ND 11/03/2023) – No update yet.

Tempur Sealy International, Inc. et al. v. Luxury Mattress & Furniture, LLC (ND 11/09/2023) – No update yet.

Stross v. Homestead Properties, Inc. (SD 11/09/2023) – No update yet.

October 2023 Updates – September 2023 Updates

August 2023 Updates – July 2023 Updates – June 2023 Updates – May 2023 Updates

April 2023 Updates – March 2023 Updates – February 2023 Updates – January 2023 Updates

December 2022 Updates –  December 2021 Updates

Photography Copyright Lawsuit filed against Indiana Hardwood Grower

14 Tuesday Nov 2023

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

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Here’s yet another photography lawsuit where a company is alleged to have used a photograph without authorization. The defendant this time is a Deputy, Indiana grower/manufacturer of Indiana hardwood products.

All companies should immediately prioritize reviewing their website to confirm ownership, approval, or other legal authority (e.g. fair use) for EVERY photograph. Otherwise, AI image searches will eventually find the unauthorized use and a copyright lawsuit will always be just around the corner. Using Google Images to find photographs for a website is never a good idea.

Stross v. Homestead Properties, Inc.

Court Case Number: 4:23-cv-00183-TWP-KMB
File Date: November 9, 2023
Plaintiff: Alexander Bayonne Stross
Plaintiff Counsel: J. Campbell Miller of SRIPLAW, P.A.
Defendant: Homestead Properties, Inc. dba Tiny Timbers
Cause: Copyright Infringement, Removal of Copyright Management Information
Court: Southern District of Indiana
Judge: Tanya Walton Pratt
Referred To: Kellie M. Barr

Complaint:

Tempur Sealy sues Valparaiso Furniture Store for Trademark Infringement

14 Tuesday Nov 2023

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

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A furniture store in Valparaiso, Indiana is accused of the unauthorized use of the Tempur-Pedic® trademark. The store had been an authorized dealer of Tempur-Pedic products until February 2, 2023, when the dealer relationship was terminated by Tempur Sealy. Upon termination of the relationship, the store was to cease all use of Tempur Sealy’s trademarks.

Despite multiple warnings by Tempur Sealy, the Complaint (below) details continued use by the furniture store, at least through August 27, 2023, of the Tempur-Pedic trademark on point-of-sale materials in the store, on exterior windows, and on the store’s website.

The Valparaiso store is alleged to have continued use of the Tempur-Pedic trademark “to attract customers for the purpose of selling non-authorized and competing products in a manner that falsely suggests and implies to consumers that Defendant maintains a relationship with Tempur Sealy as an authorized retailer.”

Stay tuned for updates.

Tempur Sealy International, Inc. et al. v. Luxury Mattress & Furniture, LLC

Court Case Number: 2:23-cv-00383-PPS-APR
File Date: November 9, 2023
Plaintiff: Tempur Sealy International, Inc., Tempur-Pedic Management, Inc., Tempur-Pedic North America, LLC, Tempur World, LCC, Dan-Foam APS, Sealy Technology LLC
Plaintiff Counsel: James N. Martin, Jr. of Steptoe & Johnson PLLC
Defendants: Luxury Mattress & Furniture, LLC d/b/a Luxury Mattress & Furniture
Cause: Federal Trademark Infringement, Federal Unfair Competition, Federal False Advertising, Federal Trademark Dilution
Court: Northern District of Indiana
Judge: Philip P. Simon
Referred To: Andrew P. Rodovich

Complaint: