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.
The parties in this lawsuit entered into an Asset Purchase Agreement in 2012, by which the Plaintiff purchased all assets and intellectual property of the truck repair company Triple LLL Truck Repair. The Plaintiff has continued to operate the business since the purchase, now located in Andrews, Indiana, and recently registered the “TRIPLE LLL” trademark with the United States Patent and Trademark Office.
The Defendant in the lawsuit is the original seller, who has now allegedly begun operating a new truck repair business under the same name, Triple LLL, out of a location that Plaintiff had previously used.
The Complaint alleges both a likelihood of confusion and instances of actual confusion.
Stay tuned for the Defendants’ Answer and a possible explanation for re-adopting the Triple LLL name (perhaps a violation of the Asset Purchase Agreement?).
Triple LLL Truck Repair, Inc. v. Triple LLL, Inc. et al.
Court Case Number: 3:21-cv-00282-JD-MGG File Date: Monday, April 26, 2021 Plaintiff: Triple LLL Truck Repair, Inc. Plaintiff Counsel: William A. Ramsey of Barrett McNagny LLP Defendant: Triple LLL, Inc. Cause: Federal Trademark Infringement, False Designation of Origin, Unfair Competition Court: Northern District of Indiana Judge: Jon E. DeGuilio Referred To: Michael G. Gotsch, Sr.
Famous (infamous) plaintiff’s lawyer Richard Liebowitz has filed another copyright lawsuit in Indiana over the unauthorized use of a photograph of Murlough Bay in Northern Ireland. The photograph has been removed from the Defendant’s website, http://www.anglotopia.net, but the Defendant was apparently not willing to meet Liebowitz’s customary settlement demands and thus a lawsuit was filed.
With a Complaint filed, it’s usual for the Defendant in these cases to weigh the costs/benefits of proceeding and likely choose to settle for a slightly higher amount than pre-Complaint. However, we’ll keep a close eye on this lawsuit to see whether Defendant has a viable defense strategy or whether they are just biding time until the eventual settlement.
Scnhebelt v. Anglotopia, LLC
Court Case Number: 3:21-cv-00040-JD-MGG File Date: January 18, 2021 Plaintiff: Stefan Schnebelt Plaintiff Counsel: Richard Liebowitz of Liebowitz Law Firm, PLLC Defendant: Anglotopia, LLC Cause: Copyright Infringement, Integrity of Copyright Management Information Court: Northern District of Indiana Judge: Jon E. DeGuilio Referred To: Michael G Gotsch, Sr.
Indiana Intellectual Property Blog 