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
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
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
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
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
Indiana Intellectual Property Blog 