The plaintiff in this copyright lawsuit is a professional photographer from Austin, Texas. His work is focused on architectural and landscape photography.
One defendant, Lynn Boolman Auto Sales (“Boolman”), is a used car dealership in Portland, Indiana.
The other defendant, Carsforsale.com, is an online auto marketplace operating out of Sioux Falls, South Dakota. It seems from the Complaint (below) that both defendants made an unauthorized use of one of the plaintiff’s landscape photographs, including cropping the photograph to remove the photographer’s signature.
It is not clear whether there is any other connection between the two defendants besides both using the photograph. Jurisdiction over Carsforsale.com seems tenuous. At least from the Complaint and related Exhibit (below), I don’t see any action that Carsforsale.com took in Indiana, either if they first posted the photograph online or if Boolman posted it to their website.
In addition to the Copyright Infringement claim, the Complaint also includes a claim for Removal of Copyright Management Information, based on the cropping of the author’s signature. However, one of the more interesting and unusual aspects of the lawsuit is the plaintiff’s third claim for Addition of False Copyright Management Information, based on the car dealership overlaying its own logo and contact information onto the (cropped) plaintiff’s photograph. Presumably, the dealership will maintain that the information added to the photograph does not identify the author or copyright owner, and thus doesn’t qualify as “copyright management information” (see definition here).
The plaintiff made prior unsuccessful attempts to negotiate with the defendants in December 2021 and January 2022. Finding no satisfactory resolution, the plaintiff now seeks the intervention of the Court. Photography copyright lawsuits often settle quickly, but stay tuned for updates.
Stross v. Lynn Boolman Auto Sales Limited Liability Company et al
Court Case Number: 3:23-cv-00061-DRL-MGG File Date: January 25, 2023 Plaintiff: Alexander Bayonne Stross Plaintiff Counsel: Evan A. Andersen of SRIPLAW, P.A. Defendants: Lynn Boolman Auto Sales Limited Liability Company, Carsforsale.com, Inc. Cause: Copyright Infringement, Removal of Copyright Management Information, Addition of False Copyright Management Information Court: Northern District of Indiana Judge: Damon R. Leichty Referred To: Michael G. Gotsch, Sr.
The plaintiff in this lawsuit is Phoenix USA RV, an RV manufacturer located in Elkhart, Indiana, the RV Capital of the World.
The defendants are a large group of former Phoenix USA employees and the competitor company they founded while still working at Phoenix USA. The defendants are accused of sabotaging the plaintiff’s operations, stealings its tangible and intellectual property, and using a stolen RV design to build a prototype for a virtually identical RV. The allegedly infringing RV is now being marketed online and at RV trade shows.
The defendants are represented by Jonathan R. Slabaugh of Sanders Pianowski LLP. Based on the history detailed in the Complaint (below), we can probably expect some fireworks once everything gets going. Employment disputes involving just one employee can get messy, but this situation involves a whole company’s worth of ex-employees plus their new competing company.
This lawsuit was removed from Elkhart Superior Court to the Northern District of Indiana. Stay tuned for updates.
Phoenix USA RV, Inc. v. Hoosier Custom Cruisers LLC et al.
Court Case Number: 3:22-cv-00855 File Date: October 7, 2022 Plaintiff: Phoenix USA RV, Inc. Plaintiff Counsel: Paul E. Harold, Stephen M. Judge of SouthBank Legal Defendants: Hoosier Custom Cruisers LLC et al. Cause: Conversion, Criminal Conversion, Theft, Breach of Fiduciary Duty, Federal Unfair Competition, Trade Dress Dilution, Common Law Trade Dress Infringement, Common Law Unfair Competition Court: Northern District of Indiana Judge: Damon R. Leichty Referred To: Michael G. Gotsch, Sr.
Both parties in this trademark infringement lawsuit are recreational vehicle (“RV”) manufacturers from Indiana. Did you know that Elkhart, Indiana is the RV Capital of the World?
The Plaintiff is Forest River, Inc. of Elkhart, Indiana. They began using the unregistered DELTA TERRA trademark in connection with recreational vehicles in March 2018. Their “mountain” logo was adopted shortly after in April 2018.
The Defendant is inTech Trailers, another RV manufacturer from the Elkhart region. They allegedly introduced a new line of RVs called “Terra” in November 2020, along with its own mountain design.
The Plaintiff first notified Defendant of its allegedly infringing activities in December 2020 but there has been no cessation of activity. The Complaint (below) asserts that some of Defendant’s leadership has past ties to Plaintiff, so there may be more to this story than meets the eye. However, even judged at face value, the marks do seem similar. Any distinctions in the mountain designs would certainly be blurred and possibly indistinguishable as these RVs roll by you on the highway. Even if understood to be different product lines, a consumer might reasonably think that both “Delta Terra” and “Terra” RVs emanate from the same manufacturer.
The Defendant has been aware of the Plaintiff’s objections since December 2020, so they should be ready to defend their trademarks and will be expected to file an Answer soon. Stay tuned for updates.
Forest River, Inc. v. inTech Trailers, Inc.
Case Number: 3:21-cv-00645-DRL-MGG File Date: Tuesday, August 31, 2021 Plaintiff: Forest River, Inc. Plaintiff Counsel: Philip R. Bautista, JoZeff W. Gebolys, Tracy N. Betz, Stephanie A. Kortokrax of Taft Stettinius & Hollister LLP Defendant: inTech Trailers, Inc. Cause: Federal Trademark Infringement, State Trademark Infringement, Common Law Unfair Competition Court: Northern District of Indiana Judge: Damon R. Leichty Referred To: Michael G. Gotsch, Sr
Since 2004, the Plaintiff has operated an ice cream parlor called “Bubbles” in Michigan City, Indiana. The Plaintiff does not have a registered trademark. Their red, white and blue logo includes several bubbles and an ice cream cone.
In July 16, the Defendant opened a new ice cream parlor called “Scoops & Sweet Bubbles” just 1.5 miles from the Plaintiff’s store. Defendant’s logo is cyan, green and gray, with some abstract shapes and some textual elements describing their products, including bubble tea. It seems clear that “Sweet Bubbles” from Defendant’s name refers to the bubble tea on their latin-flavored menu. The Plaintiff’s menu does not include bubble tea.
The Complaint (below) asserts that Plaintiff first proposed an amicable resolution but was ignored and then overtly rejected. They now seek court intervention.
What do you think? Is Scoops & Sweet Bubbles confusingly similar to Bubbles, particularly considering they are located only 1.5 miles apart? The closest nearby business with “bubbles” in the name is Tiny Bubbles of Chesterton, a car wash 11 miles down the highway.
Stay tuned for updates.
Bubbles Ice Cream Parlor & Pie Shoppe, Inc. v. Scoops & Sweet Bubbles, LLC
Case Number: 3:21-cv-00634 File Date: Wednesday, August 25, 2021 Plaintiff: Bubbles Ice Cream Parlor & Pie Shoppe, Inc. Plaintiff Counsel: Gary E. Hood, Brian Anderson, John Snow of Polsinelli PC Defendant: Scoops & Sweet Bubbles, LLC Cause: Federal Trademark Infringement, False Designation of Origin, Unfair Competition, State Trademark Infringement, Common Law Unfair Competition Court: Northern District of Indiana Judge: Damon R. Leichty Referred To: Michael G. Gotsch, Sr.
Update 6/2/2021: I went to the grocery store today searching for Egg White Wraps and didn’t find any. Is this really a thing?
Here’s a fairly interesting trade dress lawsuit involving a food product I didn’t even know existed…egg white wraps. Apparently, egg white wraps were the “number one new product in dairy departments…in 2020” (see Complaint below). It begs the question, how many other new dairy products were released in 2020? Dairy product connoisseurs, please educate me in the comments below.
As general information, “trade dress” comprises the characteristics of the visual appearance of a product or its packaging that signify the source of the product to consumers. However, if trade dress is “functional,” meaning the characteristics are “essential to the use or purpose of the article or if it affects the cost or quality of the article,” it cannot serve as a trademark. See TMEP 1202.02(a).
The Plaintiff in this lawsuit, Egglife, is accusing the Defendant, Crepini, of adopting packaging that is too similar to their own egg white wrap packaging.
Here are the specific elements that the Plaintiff consider to be their own protectable trade dress:
a. Interwoven and overlapping shapes with rounded rather than squared edges that weave in and out of the front of the package
b. The interwoven and overlapping shapes with rounded rather than squared edges are comprised of different, yellow-based colors
c. Transparent center window with overlaid graphics
d. Prominent display of “egg white wraps” in the center of the transparent window in the center of the front of the package
e. Lowercase “egglife”brand straight across the upper quarter of the front of the package
f. Smaller arched text centered over the “egglife” brand near the top of the front of the package
g. All capitalized“KEEP REFRIGERATED” text at bottom of the front of the package
h. Lowercase “egglife”brand straight across the upper quarter of the front of the package
i. Smaller arched text centered over the “egglife” brand near the top of the front of the package
j. All capitalized “KEEP REFRIGERATED” text at bottom of the front of the package
As mentioned above, I’m certainly no expert on egg white wrap packaging, but I have been in a grocery store before, and some/most of the above characteristics seem pretty standard for all types of food products. Food marketers please weigh in below, but many of these characteristics seem almost necessary, i.e. functional, given the limited packaging size for a small food product.
However, the Complaint highlights frequent changes to the Defendant’s packaging from early 2018 up to the 2019 rebrand to the current allegedly infringing packaging, of which the Defendant’s packaging now supposedly copies the characteristics of Plaintiff’s packaging:
a. Interwoven and overlapping shapes with rounded rather than squared edges b. The interwoven and overlapping shapes with rounded rather than squared edges are comprised of nearly identical yellow-based colors c. Transparent center window with overlaid graphics d. Lower case brand straight across the upper quarter of the packaging e. Smaller arched text centered over the top of the brand near the top of the packaging f. Abandoned trademarked EGG THINS in favor of “egg wraps” g. Abandoned the long-used CREPINI Iand crown design trademark in favor of lowercase font across the top of the packaging h. Added “Keep Refrigerated” messaging in all capital letters to the bottom of the packaging
As an unsophisticated egg white wrap consumer, both packagings frankly appear to me just like many other packagings in a grocery store. I’m reminded of flour tortilla packaging. Due in large part to FDA labeling requirements, food producers/marketers have to pack a lot of functional information about a product into a very small space. The use of the colors yellow and white in connection with an egg product seem to be almost a requisite. A transparent center window allowing a consumer to examine the food product seems highly necessary.
The Complaint does include some very limited evidence of instances of actual confusion by Costco consumers posting on Facebook. Considering the type of people that feel a need to post on social media about their Costco purchases, I’m not sure whether I’d consider those to be “significant” instances of confusion. However, they do exist and add an extra wrinkle to the lawsuit and Crepini’s possible defenses and responsibility to avoid consumer confusion.
This trade dress lawsuit will be interesting to follow. Stay tuned for updates.
Egglife Foods, Inc. v. Crepini, LLC
Case Number: 3:21-cv-00388 File Date: Friday, May 28, 2021 Plaintiff: Egglife Foods, Inc. Plaintiff Counsel: Louis T. Perry, David R. Merritt of Faegre Drinker Biddle & Reath LLP Defendant: Crepini, LLC Cause: Trade Dress Infringement, False Designation of Origin, Common Law Unfair Competition, Deception Court: Northern District of Indiana Judge: Jon E. DeGuilio Referred To: Michael G. Gotsch, Sr.