Tag Archives: Debra McVicker Lynch

Chicks on the Right sued over unauthorized use of Topless Selfie Teacher Photo

29 Monday Nov 2021

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

≈ Leave a comment

Tags

, , ,

Here’s another copyright lawsuit that supports the argument for a copyright small claims court.

The plaintiff is a New York-based professional photographer who owns the registered copyright in a photograph of Lauren Miranda, a New York teacher fired over a topless selfie. Mrs. Miranda was subsequently awarded $3 million in a gender discrimination lawsuit over the firing.

The defendant, Chicks on the Right, an Indianapolis-based politically conservative online news radio show and website, allegedly used the plaintiff’s photograph of Mrs. Miranda in an April 2019 blog post reporting on the teacher’s gender discrimination lawsuit (note: the plaintiff filed for registration of the photograph on June 30, 2019, almost 3 months after the blog post). While the defendant might be hoping to rely on a “news reporting” fair use defense, unfortunately there’s really no “fair use” reason to use the plaintiff’s specific photograph. Numerous images of Mrs. Miranda exist that could have been used (with proper authorization), and the Chicks on the Right blog post isn’t commenting, criticizing, or reporting on the plaintiff’s actual image. Having an online “news blog” isn’t a free pass to use any photograph you find on Google Images.

The reality is that professional photographers take lots of photos for a living, and sell only few. Perhaps political differences kept this dispute from reaching a simple non-litigious monetary resolution. Now, we can expect technicalities about the actual photograph’s ownership, registration or use to be explored in the defendant’s response or discovery.

On one hand, the Chicks on the Right, who likely use photographs for news articles on a daily basis, should be in the habit of verifying the source of every photograph they post on their blog. Presumably, in this specific instance two years ago, someone just got lazy or quick and grabbed the wrong photograph off the internet.

On the other hand, there’s simply no reason a U.S. Federal Court and esteemed judges like Jane Magnus-Stinson and Debra McVicker Lynch, already overloaded with significant legal disputes, should be dealing with a copyright lawsuit over one photograph (of a person most people have never heard of) used on a single “news” blog post. Statutory damages for a single non-willful infringement would be $750, almost certainly less than the plaintiff spent on preparing and filing this lawsuit, and definitely less than the Court has to expend in processing the dispute. You can’t blame the plaintiff though; currently, they have no other alternative legal option than federal court for a photography copyright dispute. Time will tell if there’s better way to handle such disputes.

Note that the allegedly infringing image no longer appears on the defendant’s website as of the posting of this blog (11/29/21).

By the way, go do a Google search for Lauren Miranda’s attorney. Sharp dresser. So much so, I’m giving this post a “Fashion” tag.

Stay tuned for updates.

Alcorn v. COTR, LLC

File Date: November 22, 2021
Plaintiff: Victor Alcorn
Plaintiff Counsel: Craig B. Sanders, Esq.
Defendant: COTR, LLC
Cause: Direct Copyright Infringement
Court: Southern District of Indiana
Judge: Jane Magnus-Stinson
Referred To: Debra McVicker Lynch

Complaint:

Trademark Infringement Lawsuit filed over Branded IT Training Videos

13 Wednesday Oct 2021

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

≈ Leave a comment

Tags

, , , ,

This is one of those trademark lawsuits that really isn’t about the trademarks. The subject matter is IT training videos, which you’d more typically find as the subject of a copyright lawsuit. As you’ll see, savvy branding of those videos has allowed the Plaintiff to bring this as a trademark lawsuit, with all the accompanying trademark remedies and none of the formal requirements of a copyright lawsuit.

The Plaintiff, ITPro.TV, makes IT training videos. Importantly, the training videos display the Plaintiff’s logo in the bottom left of the screen.

The Defendants, Hope Training Academy and their individual owners, operate a computer-based training academy in Carmel, Indiana that offers various computer certifications to underemployed adults. Allegedly, the Defendants have been showing Plaintiff’s branded training videos without authorization and, to add injury to insult, they also insert their own “Hope Training Academy” logo on the bottom right of the video.

The parties were engaged in seemingly fruitful settlement negotiations as late as August 2021, with the Defendants offering to make a nominal payment of $29.99 per infringing end user, an unacceptably low fee by the Plaintiff’s calculations. The Defendants also represented that they are no longer using the Plaintiff’s videos but those assertions have not been independently verified by the Plaintiff. Presumably the Plaintiff’s patience with the negotiations simply ran out and they now seek the wisdom (and coercive power) of the Court.

Stay tuned for updates.

Edutainment Live, LLC v. Video Game Palooza et al

Case Number: 1:21-cv-02611-JMS-DML
File Date: Monday, October 11, 2021
Plaintiff: Edutainment Live, LLC d/b/a ITPRo. TV
Plaintiff Counsel: Donald E. Lake III of Lewis Brisbois Bisgaard & Smith LLP
Defendant: Video Game Palooza d/b/a Hope Training Academy, Richard Barretto, Cara Barretto
Cause: Federal Trademark Infringement, Federal Unfair Competition, Common Law Unfair Competition
Court: Southern District of Indiana
Judge: Jane Magnus-Stinson
Referred To: Debra McVicker Lynch

Complaint:

Poulsen files Trademark Lawsuit in Indiana over Counterfeit “Ingrid Bergman” Roses

15 Thursday Jul 2021

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

≈ Leave a comment

Tags

, , , , , , , ,

What’s in a name? That which we call a rose
By any other name would smell as sweet –William Shakespeare, Romeo & Juliet

Poulsen Roser is a family-owned Danish company world-famous for its breeding of distinctive rose varieties, for which it obtains patent and trademark protection. A lawsuit has been filed in the Southern District of Indiana involving their INGRID BERGMAN rose, a “unique currant red hybrid tea rose variety.” Poulsen owns a U.S. trademark registration for INGRID BERGMAN in connection with “live roses.”

The Defendants operate one of the U.S.’s largest wholesale rose growers, distributing flowers to garden centers, nurseries, and mail order outlets.

This lawsuit arises because the Defendants are allegedly producing, advertising, selling, and distributing unauthorized roses using the Poulsen’s INGRID BERGMAN mark. Further bibliographical information on the Defendants’ website about their “counterfeit” roses (see screenshot) might suggest to consumers that they are in fact authentic Poulsen roses.

Surely this situation can’t be as cut and dried as the Complaint (below) would imply. A large wholesale grower like the Defendants would certainly understand the implications of selling unauthorized rose varieties and know they couldn’t escape detection. We’ll have to stay tuned for their Answer and another possible side of the story.

Poulsen Roser A/S vs. Gardens Alive, Inc. et al.

Case Number: 4:21-cv-00113-SEB-DML
File Date: Wednesday, July 14, 2021
Plaintiff: Poulsen Roser A/S
Plaintiff Counsel: Louis T. Perry of Faegre Drinker Biddle & Reath LLP
Defendant: Gardens Alive, Inc., Early Morning LLC d/b/a Weeks Roses
Cause: Federal Trademark Counterfeiting, Federal Trademark Infringement, Federal Unfair Competion, Federal False Designation of Origin, Common Law Unfair Competition, Conversion, Theft
Court: Southern District of Indiana
Judge: Sarah Evans Barker
Referred To: Debra McVicker Lynch

Complaint:

Family-owned Hardware Store in Corydon, Indiana sued by Sears Hometown for Unfair Competition and Tortious Interference

08 Tuesday Jun 2021

Posted by in Branding, Indiana, Intellectual Property, Litigation, Southern District of Indiana, Trade Dress

≈ Leave a comment

Tags

, , , ,

The Plaintiff in this lawsuit is Sears Authorized Hometown Stores, LLC (“SAHS”), the licensor of Sears Hometown stores, which offer SAHS’s merchandise, such as major home appliances, for sale to the public on consignment from SAHS. For over 25 years, SAHS licensed a Sears Hometown store in Corydon, Indiana through dealership agreements with a series of independent dealers.

The Defendants are accused of using “their personal relationships with SAHS’s former dealer to block SAHS’s access to the market and open their own store, “Schneider’s Hometown,” at the same location as the former Sears Hometown store. Defendants are now unfairly trading off SAHS’s name and goodwill in the Corydon market.”

The Complaint (below) details the history between the original Corydon SAHS store and the Defendants, including the actions of the Defendants in abandoning their own dealer agreement.

The Defendants are also accused of using a sign designed to be confusingly similar to the sign used to designate a Sears Hometown store, including using the same font and color scheme. The interior of the Defendants’ store allegedly uses the same trade dress and fixtures used in SAHS’s branding programs, including, but not limited to, the paint colors and trim and vinyl plank wood flooring. The Defendants also continue to use the same phone number from the SAHS store.

Stay tuned for updates.

Sears Authorized Hometown Stores, LLC v. Lynn Retail, Inc. et al.

Case Number: 4:21-cv-00091-JMS-DML
File Date: Friday, June 4, 2021
Plaintiff: Sears Authorized Hometown Stores, LLC
Plaintiff Counsel: Michael W. Oyler of Furman Nilsen & Oyler, PLLC, Fredric A. Cohen, Allison R. Grow, Charles J. Hoover of Cheng Cohen LLC
Defendant: Lynn Retail, Inc., Jerry Schneider, Laura Schneider
Cause: Unfair Competition, Tortious Interference with Contract, Tortious Interference with Prospective Economic Advantage
Court: Southern District of Indiana
Judge: Jane Magnus-Stinson
Referred To: Debra McVicker Lynch

Complaint:

Mobile App Developer sued for Trademark Infringement, Counterfeiting

21 Thursday Jan 2021

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

≈ Leave a comment

Tags

, , , ,

The Plaintiff in this lawsuit, Midcontinent Independent System Operator (MISO), operates one of the world’s largest energy markets with more than $29 billion in annual gross market energy transactions. MISO provides power to 15 U.S. states and Manitoba.

The Defendant, an individual, is alleged to have created a mobile application called “Midcontinent ISO with Realtime Dashboard” that infringes MISO’s trademarks and misleads the consuming public that MISO produced or approves of the application. The Complaint also raises a concern that users are being tricked into entering legitimate MISO credentials into the non-endorsed application.

The purpose of the mobile application is unclear from the Complaint, but it seems to provide information about Plaintiff’s services, tracking energy rates and the status of the power grid. As such, perhaps the Defendant can articulate a “nominative fair use” defense, if use of the Plaintiff’s trademark was necessary to identify the Plaintiff’s products or services, and the Plaintiff’s trademarks weren’t used to suggest endorsement. However, the Defendant’s app also prominently featured Plaintiff’s design mark, which could undermine any fair use defense.

A review of Defendant’s Google Play store shows that they offer similar apps for other energy providers, including NYISO:

The Google Play listing and the app photos don’t contain the usual disclaimers that you’d want to see to best support a “nominative fair use” defense. The Midcontinent ISO application was removed from the Google Play store on January 11, 2021 and remains down today. The Complaint requests injunctive relief to prevent a future relaunch of the application.

Stay tuned for updates.

Midcontinent Independent System Operator, Inc. v. Sullivan

Court Case Number: 1:21-cv-00143-JRS-DML
File Date: January 18, 2021
Plaintiff: Midcontinent Independent System Operator, Inc.
Plaintiff Counsel: Kevin W. Kirsch, David A. Mancino, Kevin P. Flynn of Baker & Hostetler LLP
Defendant: James F. Sullivan a.k.a. Jim Cassidy
Cause: Trademark Infringement, Counterfeiting
Court: Southern District of Indiana
Judge: James R. Sweeney II
Referred To: Debra McVicker Lynch

Complaint: