Tag Archives: James R. Sweeney II

Honest Abe Roofing sues Georgia Couple for Breach of Franchise Agreement, Trademark Infringement

09 Friday Sep 2022

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

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In April 2021, the Georgia-based defendants in this Indiana lawsuit entered into a Franchise Agreement with Honest Abe, a roof installation corporation located in Terre Haute, Indiana. The franchise relationship did not last long, and Honest Abe send a first Notice of Default in March 2022 asserting several material defaults. Following the failure by defendants to timely cure the defaults, a Notice of Termination was sent to the defendants on May 5, 2022. The defendants allegedly owe the plaintiff around $186,000 in past-due fees. The defendants are also accused of violating their non-compete agreements by starting a competing roofing company in the same geographic area. The Complaint (below) details interactions between an investigator and the defendants in which the defendants continue to refer to themselves as “Honest Abe.”

Honest Abe also requests a temporary restraining order and preliminary injunction (see Motion below).

Based on the very thorough complaint (with 19 exhibits) and the motion for a temporary restraining order/preliminary injunction, I expect the defendants will have a big fight on their hands. Pursuant to the Franchise Agreements, the defendants could also be responsible for Honest Abe’s attorney fees and costs, which are probably already substantial.

Stay tuned for updates.

Honest Abe Roofing Franchise, Inc. v. DCH & Associates, LLC et al.

Court Case Number: 2:22-cv-00387-JRS-MG
File Date: September 7, 2022
Plaintiff: Honest Abe Roofing Franchise, Inc.
Plaintiff Counsel: William W. Drummy of Wilkinson Goeller Modesitt Wilkinson & Drummy LLP
Defendants: DCH & Associates, LLC, Honest Abe Roofing of Macon Georgia, LLC, Dameion Harris, Christine Harris
Cause: Federal Trademark Counterfeiting, Federal Trademark Infringement, Federal Unfair Competition, False Designation of Origin, Breach of Franchise Agreement, Breach of Contract, Common Law Unfair Competition, Misappropriation of Goodwill
Court: Southern District of Indiana
Judge: James R. Sweeney II
Referred To: Mario Garcia

Complaint:

Brief in Support of Motion for Temporary Restraining Order and Preliminary Injunction:

BMI sues Rockville Bar for Copyright Infringement

02 Tuesday Aug 2022

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

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BMI has found another target in Indiana. This time it’s the Thirty Six Saloon, a relaxed roadhouse alongside US-36 in Rockville, Indiana, home of the Parke County Covered Bridge Festival.

BMI allegedly reached out to the Defendants over thirty-five (35) times since April 2019 in an attempt to sell them the required public performance license to play music in the roadhouse. With no apparent satisfactory response, BMI now brings a lawsuit with 4 claims of copyright infringement based on the following playlist being performed at Thirty Six Saloon without a license on November 27, 2019 (the night before Thanksgiving):

Stay tuned for updates.

Broadcast Music, Inc. et al. v. Thirty-Six Saloon, LLC d/b/a Thirty Six Saloon Et al.

Case Number: 2:22-cv-00305-JRS-MJD
File Date: July 27, 2022
Plaintiff: Broadcast Music, Inc.; Cotillion Music, Inc.; Terry Stafford Music Co.; House of Cash, Inc.; Sony/ATV Songs LLC d/b/a Sony/ATV Tree Publishing; Round Hill Music LP d/b/a Round Hill Works; Tokeco Tunes; EMI Blackwood Music Inc.; Warner-Tamerlane Publishing Corp.; Lucky Thumb Music; Noah’s Little Boat Music; Sea Gayle Music LLC d/b/a New Songs of Sea Gayle; Eldorotto Music Publishing; Big Gassed Hitties; Spirit Music Group Inc. d/b/a Spirit of Nashville One
Plaintiff Counsel: April A. Wimberg of Dentons Bingham Greenebaum
Defendant: Thirty-Six Saloon, LLC d/b/a Thirty Six Saloon; Mark Vanderheyden
Cause: Copyright Infringement
Court: Southern District of Indiana
Judge: James R. Sweeney II
Referred To: Mark J. Dinsmore

Complaint:

Pacers’ Lance Stephenson sued for posting photographs of himself on Instagram Stories

28 Friday Jan 2022

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

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The plaintiff in this copyright lawsuit is a professional photographer who has taken several photographs of Indiana Pacers’ Lance Stephenson, including photographs of Stephenson winning the 2008 Public School Athletic League as a high-schooler with Abraham Lincoln High School in Coney Island, New York.

Stephenson allegedly posted several of the plaintiff’s photographs on his Instagram account, stephensonlance, without authorization from the plaintiff. Most of the postings were apparently posted in Stephenson’s “Instagram Stories,” which disappear after 24 hours.

Lance Stephenson isn’t the first public figure to be sued for posting unowned photos of themself on social media. Being the subject of a photograph does not grant you copyright ownership of that photograph. Copyright ownership is held by the photographer, who can thus control how the photograph is publicly displayed. These types of lawsuits are typically settled out-of-court, but obviously not in this instance, although the Complaint (below) makes no mention of attempted settlement negotiations. Nevertheless, settlement usually follows shortly after a complaint is filed, although usually at a higher settlement amount.

Stay tuned for updates.

Reid v. Stephenson

Case Number: 1:22-cv-00205-JRS-DLP
File Date: January 27, 2022
Plaintiff: Damion Reid
Plaintiff Counsel: Craig B. Sanders of Sanders Law Group
Defendant: Lance Stephenson
Cause: Direct Copyright Infringement
Court: Southern District of Indiana
Judge: James R. Sweeney II
Referred To: Doris L. Pryor

Complaint:

Delta Faucet Company sues Russian Counterfeiters over Unauthorized Amazon Sales

29 Monday Mar 2021

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

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Delta Faucet Company is going after Russian counterfeit faucet sellers in the Southern District of Indiana. In a lengthy and well-drafted Complaint (below), the Plaintiff details how a company’s trademarks are impacted by negative online marketplace reviews and unauthorized sellers. The lawsuit potentially exposes a gray market existing within Amazon’s “Fulfillment by Amazon” services that allows for counterfeit sales, leading to invalid product warranties, disgruntled consumers, and a damaged brand.

This lawsuit, along with Delta’s upgraded authorized seller policies (described in the Complaint), could serve as a good model for other companies dealing with online counterfeits. Although I predict the individual counterfeiters will simply disappear to continue on behind other aliases, Delta is likely more interested in getting an injunction to prevent further Amazon sales, setting precedent against counterfeiters and possibly allowing them to address the numerous unearned negative product reviews.

Stay tuned for updates.

Delta Faucet Company v. Iakovlev et al.

Court Case Number: 1:21-cv-00733-JRS-TAB
File Date: March 25, 2021
Plaintiff: Delta Faucet Company
Plaintiff Counsel: Louis T. Perry of Faegre Drinker Biddle & Reath LLP
Defendant: Dmitrii Iakovlev, John Does 1-10
Cause: Federal Trademark Infringement, Federal Unfair Competition, Common Law Trademark Infringement, Common Law Unfair Competition, Indiana Crime Victim’s Relief Act, Deception
Court: Southern District of Indiana
Judge: James R. Sweeney II
Referred To: Tim A. Baker

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: