Tag Archives: Debra McVicker Lynch

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

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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

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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:

Sunman BP sued for selling counterfeit Oakley sunglasses

18 Friday May 2018

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

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The defendants in this counterfeiting lawsuit are the owners and operators of a BP gas station located in Sunman, Indiana, who are accused of selling counterfeit Oakley sunglasses. The counterfeit products were observed for sale in the store by Plaintiff’s representatives.

The plaintiff, Oakley, Inc., seeks damages and injunctive relief.

Oakley, Inc. v. Sunman BP et al.

Court Case Number: 4:18-cv-00085-TWP-DML
File Date: Wednesday, May 16, 2018
Plaintiff: Oakley, Inc.
Plaintiff Counsel: Jason D. Groppe, Esq., Logan S. Bednarczuk, Esq.
Defendants: Swami Property Sunman Inc. dba Sunman BP, Chirag Patel, Does 1-10
Cause: Federal Trademark Infringement, False Designation of Origin, False Advertising, Federal Trademark Dilution, Common Law Trademark Infringement, Common Law Unfair Competition, Unjust Enrichment
Court: Southern District of Indiana
Judge: Tanya Walton Pratt
Referred To: Debra McVicker Lynch

Complaint:

BioSweep vs. BioClean…are you confused?

01 Tuesday May 2018

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

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The Defendants in this lawsuit are accused of violating the non-compete provisions of a terminated Franchise Agreement, as well as operating the competing business with a confusingly similar trademark, BioClean vs. the Plaintiff’s registered BioSweep trademark.

The Defendants allegedly also still claim to use Plaintiff’s “BioSweep System” equipment on their website, creating a false impression of a relationship with Plaintiff, and reference their competing company as “BioSweep of the Gulf Coast” in at least one instance.

Stay tuned for updates.

Phocatox Technologies, LLC v. Wiersig et al.

Court Case Number: 1:18-cv-01298-WTL-DML
File Date: Friday, April 27, 2018
Plaintiff: Phocatox Technologies, LLC
Plaintiff Counsel: Bryan S. Redding, Britton A. Jared of Redding Law, LLC
Defendants: Jerry D. Wiersig, Todd M. Hoffman, BioClean Remediation, LLC (AL), and BioClean Remediation, LLC (OK)
Cause: Federal Trademark Infringement, Common Law Trademark Infringement, Contributory Trademark Infringement, Breach of Franchise Agreement, Conspiracy, Federal Unfair Competition, State Unfair Competition
Court: Southern District of Indiana
Judge: William T. Lawrence
Referred To: Debra McVicker Lynch

Complaint:

Indy’s COMFORT STAY INN sued for trademark infringement by owner of COMFORT INN

17 Monday Jul 2017

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

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The Plaintiff in this trademark lawsuit is one of the largest lodging franchisors in the world. Among its many well-known brands are COMFORT INN and COMFORT SUITES. Plaintiff has used its family of COMFORT trademark since at least 1984.

Defendant operates a hotel in Indianapolis, Indiana under the name “Comfort Stay Inn.” Defendant’s utilizes the domain name comfortstayinn.com.

Cease-and-desist coomunications from Plaintiff’s attorney were unsuccessful, hence this lawsuit. Plaintiff asserts that Defendant’s hotel name is confusingly similar and has irreparably damaged the value of the COMFORT family of marks.

Choice Hotels International, Inc. v. American Hospitality Solution, LLC

Court Case Number: 1:17-cv-02402-TWP-DML
File Date: Friday, July 14, 2017
Plaintiff: Choice Hotels International, Inc.
Plaintiff Counsel: Calvert S. Miller of Carson Boxberger LLP
Defendant: American Hospitality Solution, LLC
Cause: Federal Trademark Infringement, False Designation of Origin, Indiana Trademark Infringement, Indiana Unfair Competition
Court: Southern District of Indiana
Judge: Tanya Walton Pratt
Referred To: Debra McVicker Lynch

Complaint: