Tag Archives: Breach of Contract

AV Intern sues Kilroy’s Sports for Non-Payment of Wages, Copyright Infringement

09 Tuesday Aug 2022

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

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A popular college bar in Bloomington, Indiana is accused of non-payment of $12,000 to an intern who had been creating content for their social media accounts. The Complaint (below) details several months of promised, delayed, and ultimately unrealized paychecks.

The Complaint includes claims for declaratory judgment of copyright ownership and copyright infringement, but I assume that the intern is less interested in ownership of the bar’s social media content and more interested in getting paid for months of labor. The specific works alleged to have been infringed are not identified in the Complaint and there is no mention of registration of any works, a prerequisite for a copyright infringement claim, so the copyright claims could be vulnerable to challenge. As jurisdiction for the lawsuit is based on the copyright and declaratory judgment of copyright ownership claims, we might see an early battle over jurisdiction.

Ideally, the intern will just get paid what he is owed before lawyers for both sides get deep into researching and drafting motions. Stay tuned for updates.

Schwartz v. Kilroy’s North America, LLC et al

Case Number: 1:22-cv-01563-SEB-DML
File Date: August 5, 2022
Plaintiff: Elijah Schwartz
Plaintiff Counsel: Kimberly D. Jeselskis, B.J. Brinkerhoff, Hannah Kaufman Joseph of Jeselskis Kaufman and Joseph, LLC
Defendant: Kilroy’s North America, LLC, Kilroy’s Sports, LLC, Kilroy’s on Kirkwood, LLC
Cause: Violation of the Wage Payment Act, Breach of Contract, Promissory Estoppel, Unjust Enrichment, Fraud, Declaratory Judgment of Copyright Ownership, Copyright Infringement
Court: Southern District of Indiana
Judge: Sarah Evans Barker
Referred To: Debra McVicker Lynch

Complaint:

Carmel-based Autoniq sues Laser Appraiser for False Advertising, Breach of Settlement Agreement

25 Friday Feb 2022

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

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The plaintiff, Carmel, Indiana-based Autoniq, provides a software solution that allows vehicle dealers to find, research, purchase and price vehicles, both online and at auction.

On January 29, 2021, Autoniq settled a prior lawsuit against the defendant, Laser Appraiser of Watkinsville, Georgia, based on trademark disputes involving deceptive online advertising. The parties signed a settlement agreement which included a $10,000 per breach liquidated damages provision for any future violations.

Apparently the defendant’s marketing department just couldn’t stand not using “Autoniq” in their online ads (along with arguably deceptive information about the plaintiff’s software), as less than a year later, in December 2021, Autoniq discovered new online advertisements by Laser Appraiser that allegedly violate the terms of the parties’ settlement agreement. As such, Autoniq has filed this lawsuit based on the new advertisements, but now backed with a $10,000 per breach liquidated damages provision.

Stay tuned for updates.

Autoniq, LLC v. Laser Appraiser, LLC

Case Number: 1:22-cv-00368-JMS-DML
File Date: February 21, 2022
Plaintiff: Autoniq, LLC
Plaintiff Counsel: Louis T. Perry of Faegre Drinker Biddle & Reath LLP
Defendant: Laser Appraiser, LLC
Cause: False Advertising, Breach of Contract
Court: Southern District of Indiana
Judge: Jane Magnus-Stinson
Referred To: Debra McVicker Lynch

Complaint:

RE/MAX sues Realtor Franchisee for Competing Against His Own Franchises

25 Wednesday Aug 2021

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

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Apparently all the intellectual property litigators in Indiana took nice long summer vacations, as this is the first new IP lawsuit filed in over two months (since July 22, 2021). After the long wait, the lawsuit we get is mostly about the breakdown of a 10-year franchise relationship.

The Plaintiff is RE/MAX, a global franchisor of real estate brokerage services.

The Defendant is a franchisee accused of numerous violations of the franchise agreement, including actively competing against his own franchises, sending sales associates to a competitor, and enabling competing agents to operate out of RE/MAX locations.

These franchise lawsuits always have two sides, so it’s typically a good idea to read both the Complaint and the Defendant’s Answer for a better picture of how a 10-year franchise relationship breaks down to the point of a lawsuit. Stay tuned for updates.

RE/MAX, LLC et al v. Dulin et al.

Case Number: 1:21-cv-02321-TWP-TAB
File Date: Tuesday, August 24, 2021
Plaintiff: RE/MAX, LLC, RE/MAX Integrated Regions, LLC
Plaintiff Counsel: Lucy Dollens of Quarles & Brady LLP, Kathryn A. Reilly, Thomas A. Olsen, Chuan (CiCi) Cheng of Wheeler Trigg O’Donnell LLP
Defendant: James E. Dulin II, The Hamilton Group, Inc.
Cause: Breach of Contract, Federal Trademark Infringement, Unfair Competition, Declaratory Relief
Court: Southern District of Indiana
Judge: Tanya Walton Pratt
Referred To: Tim A. Baker

Complaint:

Equestrian Arena Equipment Manufacturer Sues Competitor for Breach of Contract, Misappropriation of Trade Secrets

13 Tuesday Apr 2021

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

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Here’s an interesting lawsuit, which seems like it wants to be a patent lawsuit but instead is masquerading as a breach of contract or trade secret lawsuit.

In September 2016, the parties allegedly into a “Product Lines Purchase Agreement,” by which the Plaintiff purchased “all specifications, shop drawings, blueprints, records and intellectual property rights” relating to the Kiser DragMaster and Kiser Edge, equipment used for grooming and maintaining equestrian arenas.

Despite selling the intellectual property for those products to Plaintiff as a part of the deal, the Defendants are now accused of selling knockoff products, although under different product names. It seems that what Plaintiff really wants to do is prevent the sale of competing products, but they don’t have any patents to truly protect their product designs. As such, the Plaintiff’s lawyers had to get creative and try to bring breach of contract, trademark, and trade secret claims.

Apparently, representatives of the Defendants have referred to the Defendants’ products as a “redesign” of Plaintiff’s DragMaster. Even if true, the Defendants could claim a nominative fair use defense, as such references seem to actually be referring to old DragMaster products. The law around comparative advertising is pretty well-settled in favor of consumer knowledge, absent evidence of false endorsement. Competitors comparing a new product to an older competing product via name is typically allowed.

By way of example, the Complaint (below) contains the following diagram comparing the Defendants’ “Kiser 1000” to the Plaintiff’s “ABI DragMaster”:

Similarly, the “Kiser 200” is compared to the “ABI Edge”:

These are the types of comparison drawings you’d typically see in a patent lawsuit. All of the features being compared are utilitarian product features. The product names (i.e. trademarks) aren’t compared because they aren’t similar at all…Kiser 1000 vs. ABI DragMaster.

Proving a breach of contract or misappropriation of trade secrets will necessarily depend on proving that the Defendants’ products are actually infringing on the intellectual property owned by Plaintiff. Without any prior patent protection, that could be difficult to do in this context.

Stay tuned to see how the Defendants respond, perhaps with a Motion to Dismiss for some of the claims.

ABI Attachments, Inc. v. Kiser Arena Specialists, Inc. et al.

Court Case Number: 1:21-cv-00890-SEB-DLP
File Date: Monday, April 12, 2021
Plaintiff: ABI Attachments, Inc.
Plaintiff Counsel: James M. Lewis, Michael J. Hays of Tuesley Hall Konopa LLP
Defendant: Kiser Arena Specialists, Inc., Robert D. Kiser, James Kiser
Cause: Breach of Contract, Misappropriation of Trade Secrets, Lanham Act Violations, False Designation, False Advertising, Common Law Unfair Competition, Common Law Trademark Misappropriation, Unjust Enrichment
Court: Southern District of Indiana
Judge: Sarah Evans Barker
Referred To: Doris L. Pryor

Complaint:

Website development business sues canine trainer for copyright, trademark infringement

30 Wednesday Sep 2020

Posted by in Intellectual Property

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We’re back! Due to the coronavirus, trademark and copyright filings have been fairly nonexistent for the last six months. But things are picking up again and the Indiana Intellectual Property Blog is back in action to monitor and review intellectual property filings in Indiana.

This case involves a dispute between co-owners of an online instruction course about canine behavior modification. The defendant, a well-known canine trainer, appears to be caught with the plaintiffs in a dispute over her percentage of profit for her contributions to the plaintiff’s series of online instruction courses and canine behavior modification manuals.

It’s always unfortunate when a closely-held business results in a legal controversy between co-owners. The copyright and trademark claims in this case seem to just be leverage for the plaintiffs toward getting their intended result rather than anything particularly interesting for intellectual property practitioners.

Stay tuned for updates.

Content & Commerce, Inc., Kevin DeTrude v. Donna Chandler, Show Colors, Inc., My K9 Behaves, LLC

Court Case Number: 1:20-cv-02488-JMS-DLP
File Date: September 25, 2020
Plaintiff: Content & Commerce, Inc., Kevin DeTrude
Plaintiff Counsel: B.J. Brinkerhoff, Hannah Kaufman Joseph of Jeselksis Brinherhoff and Joseph, LLC
Defendant: Donna Chandler, Show Colors, Inc.
Cause: Declaratory Judgement of Copyright Ownership, Copyright Infringement, Declaratory Relief as to Trademark Ownership, Trademark Infringement, Derivative Claim For Breach of Fiduciary Duty, Derivative Claim of Waste, Self-Dealing, Mismanagement and Misappropriation of Corporate Assets and Usurpation of Corporate Opportunities, Derivative Claim for Theft and Conversion, Direct Claim for Breach of Fiduciary Duty, Direct Claim of Waste, Self-Dealing, Mismanagement and Misappropriation of Corporate Assets and Usurpation of Corporate Opportunities, Direct Claim for Theft and Conversion, Breach of Contract
Court: Northern District of Indiana
Judge: Jane E. Magnus-Stinson
Referred To: Doris L. Pryor

Complaint: