Tag Archives: Debra McVicker Lynch

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:

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

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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

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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

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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: