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Indianapolis, Indiana – Attorneys for Plaintiff, National Federation of Professional Trainers, Inc. (“NFPT”) of Lafayette, Indiana, filed suit in the Northern District of Indiana alleging that Defendant, Carrington College, Inc. (“Carrington”) of Sacramento, California, infringed its rights in United States Copyright Registration No. TX 8-515-798 (“NFPT 0241 Exam”). Plaintiff further alleges misappropriation of trade secrets, breach of contract, and fraud. Plaintiff is seeking damages, profits received from unauthorized copying and distribution of the copyrighted work, attorney’s fees, costs, and injunctive relief.

NFPT creates and administers examinations for the certification of personal trainers. Their certification programs have been accredited by the National Commission for Certifying Agencies since 2005. Carrington has utilized NFPT’s examinations and educational materials as a part of its Physical Therapy Technology Program. At the end of the course, students were able to sit for the NFPT certification exam for the opportunity to become a certified personal trainer upon obtaining a “passing” score.

Carrington administered an NFPT examination December 10, 2015 via their proctor, Mr. Phillip Schauer (“Schauer”). As proctor, Schauer had to sign a confidential disclosure agreement, which included maintaining the confidentiality of the exams and not duplicating any of the testing materials. The December 10, 2015 exam produced extremely abnormal results for the students’ test scores. Of the twenty-six candidates, fifteen had identical or similar response strings while the remaining candidates response strings differed by a maximum of four responses out of 120. All of the candidates obtained a “passing” score. Due to the abnormalities in the results, NFPT voided the results and required all candidates to retake the examination with new questions on August 26, 2016. Only six candidates chose to retake the exam and of those, only two obtained a passing score.

After further investigation, NFPT discovered that employees of Carrington, including Schauer had made copies of the NFPT examinations and distributed them for their students to memorize. NFPT also found that Schauer had a criminal history including fraud, false statements, and theft by misrepresentation, which was overlooked or never looked into by Carrington. In response to the results of their investigation, NFPT sent Carrington a demand letter on September 12, 2017. Included in that letter, NFPT informed Carrington that they would no longer be providing educational or certifying examination materials to the school. Further, NFPT demanded all NFPT materials remaining on campus be collected and returned to NFPT immediately. Carrington failed to respond to that letter and this suit was filed in response.

The case was assigned to Senior Judge Joseph S. Van Bokkelen and Magistrate Judge John E. Martin in the Northern District and assigned Case 4:18-cv-00047-JVB-JEM.

NatFed-v-Carrington-Complaint

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Indianapolis, Indiana – Attorneys for Plaintiff, FOTOHAUS, LLC (“Fotohaus”) of Tallahassee, Florida filed suit in the Southern District of Indiana alleging that Defendant, OFS BRANDS, INC (“OFS”) of Huntingburg, Indiana infringed its rights in United States Copyright Registration No. VA 1-832-736 photograph titled “Light Collector” (“Photograph”). Plaintiff is seeking statutory damages, actual damages, Plaintiff’s costs, and attorneys’ fees.

The Photograph in question was first captured by Daniel Foster, Manager of Fotohaus, in Shanghai, China on July 1, 2010. Foster posted the Photograph to his Flickr account on July 13, 2010 and later registered the Photograph with the United States Copyright Office on July 17, 2012. Fotohaus was assigned the copyright to the Photograph on March 8, 2017. On or about June 2, 2016, OFS copied the Photograph and posted it to their commercial website accompanying a post advertising the design of a product they offered. Defendant also posted a copy of the Photograph on their Twitter page on June 6, 2016.

Fotohaus mailed their first letter identifying the infringement of the Photograph to OFS on September 5, 2017 demanding among other things that OFS remove the infringing material. At least ten communications between the Plaintiff and Defendant occurred between October 17, 2017 and February 19, 2018. The offending Twitter post was not removed by OFS until February 19, 2018. Plaintiff claims the Defendant not only violated their exclusive rights of reproduction and distribution, but the act of infringement was willful, intentional, and without regard to the rights of the Plaintiff. For this, Plaintiff is requesting a declaration that Defendant’s unauthorized conduct violated Plaintiff’s rights under the Federal Copyright Act, maximum allowable statutory damages, and actual damages.

The case was assigned to Judge Tanya Walton Pratt and Magistrate Judge Tim A. Baker in the Southern District and assigned Case 1:18-cv-01989-TWP-TAB.

Fotohaus-v-OFS-Complaint

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Fort Wayne, Indiana – Attorneys for Plaintiff, North American Van Lines, Inc. (“NAVL”) of Fort Wayne, Indiana filed suit in the Northern District of Indiana alleging that Defendant, North America Moving & Storage, Inc. of Miami Beach, Florida infringed its rights in United States Trademark Registration No. 917,431 for the mark “NORTHAMERICAN”. Plaintiff is seeking damages, exemplary damages, punitive damages, attorney’s fees, pre-judgment and post-judgment interest.

Counts one and two of the Plaintiff’s Complaint allege Federal Trademark Infringement and Federal Unfair Competition, both under the Lanham Act. Plaintiffs allege that the Defendant’s use of “NORTH AMERICA” and “NORTH AMERICA MOVING SYSTEMS” (“Infringing Marks”) has caused and will continue to cause confusion, deception, and mistake by giving the impression that the Defendant’s services originate from the Plaintiff or are associated with the Plaintiff. Further, Plaintiffs claim there has been actual consumer confusion as to the source of transportation services sold and advertised by the Defendant. NAVL also asserts that Defendant has taken part in multiple deceptive acts including making false representations, false descriptions, and false designations of origin of its services, providing for unfair competition.

Count three claims that Defendant registered and is using the northamericamoving.com domain name in bad faith under the Anticybersquatting Consumer Protection Act. NAVL alleges that Defendant is using the name without their permission and that Defendant’s intent in registering and using the domain name was and is to divert consumers from NAVL’s own websites. Count four of the Complaint alleges Indiana Trademark Infringement for Defendant’s use of a reproduction, colorable imitation, or copy of NAVL’s marks in connection with the sale, or offer of, distribution, and advertising of goods and services. Finally, Count five alleges Common Law Unfair Competition for consumer confusion and deception by Defendant’s use of the Infringing Marks.

The case was assigned to Chief Judge Theresa Lazar Springmann and Magistrate Judge Susan L. Collins in the Northern District and assigned Case 1:18-cv-00196-TLS-SLC.

NorthAmerican-v-NorthAmerica-Complaint

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Indianapolis, Indiana – Attorneys for Plaintiff, Secure Cam, LLC of Sheridan, Wyoming originally filed suit in the Northern District of California alleging that Defendant, Project Nursery, LLC of San Francisco, California infringed its rights in United States Patent No. 7,257,158, (“the ‘158 Patent”) for “System for Transmitting Video Images over a Computer Network to a Remote Receiver”. As of June 21, 2018 this case has been transferred to the Southern District of Indiana. Plaintiff is seeking damages, costs, expenses, pre-judgment and post-judgment interest.

Plaintiffs allege that the Defendant’s face recognition readers and license plate recognition cameras that they manufacture, import into the United States, or offer for sale, and/or sell infringe at least Claim 12 of the ‘158 Patent. Other products alleged to infringe the ‘158 Patent include: Project Nursery 5” HD Dual Connect Wi-Fi Baby Monitor System, Project Nursery 4.3 Baby Monitor System with 2 Digital Zoom Cameras, Project Nursery Video Baby Monitor System with Digital Zoom Camera, Project Nursery 5” High Definition Baby Monitor System with 1.5” Mini Monitor, Project Nursery 4.3” Baby Monitor System with 1.5” Mini Monitor, and Project Nursery 4.3” Baby Monitor System. In the Complaint, plaintiffs point out seven separate elements included in the allegedly infringing products that are all elements in Claim 12 of the ‘158 Patent.

After the case was transferred to the Southern District of Indiana it was assigned to Senior Judge Sarah Evans Barker and Magistrate Judge Mark J. Dinsmore and assigned Case 1:18-cv-01922-SEB-MJD.

SecureCam-v-Project-Complaint

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Indianapolis, Indiana – Attorneys for Plaintiff, Eli Lilly and Company of Indianapolis, Indiana filed suit in the Southern District of Indiana alleging that Defendants, Dr. Reddy’s Laboratories, LTD. of Hyderabad, Telagana, India, and Dr. Reddy’s Laboratories, Inc,. a New Jersey corporation, infringed its rights in U.S. Patent No. 7,772,209 (“the ‘209 Patent”).

The ‘209 Patent at issue here is a method patent for administering pemetrexed disodium, a chemotherapy drug, with vitamins, the combination of which is marketed as ALITMA® by Lilly. This invention helps to solve the toxicity issue in chemotherapy patients being treated with pemetrexed. The particular regimen of vitamin  and folic acid are important for the pretreatment of these patients. As of December 2015, Dr. Reddy’s informed Lilly that it had submitted a FDA New Drug Application for a product that would be marketed as a competing product to ALITMA®.

The first issue the Court had to decide was whether Lilly was barred from asserting the doctrine of equivalents under prosecution history estoppel. The Court held that Lilly had not surrendered the equivalent in question because their decision to use the choice pemetrexed salt was tangential to the reasons for the amendment. The choice to narrow was simply to overcome a rejection in view of a prior art article about a different antifolate, methotrexate.

The second issue was the disclosure-dedication doctrine rule. When a patentee discloses, but does not claim certain subject matter, the disclosure-dedication rule bars a doctrine of equivalents claim. Dr. Reddy’s claimed that because the ‘209 Patent referenced U.S. Patent No. 4,997,838 (“the ‘838 Patent”) and pemetrexed ditromethamine was disclosed as an alternative in that patent, Lilly should be barred from asserting a doctrine of equivalents claim. However, the Court found that because the ‘838 Patent was not expressly incorporated in the ‘209 Patent and the ‘838 Patent did not specifically disclose pemetrexed ditromethamine as an alternative to pemetrexed disodium, the doctrine of equivalents claim was not barred.

The main issue for this case was whether the use of pemetrexed ditromethamine product on Dr. Reddy’s label infringed the ‘209 Patent’s use of pemetrexed disodium, under the doctrine of equivalents. First, the Court needed to determine if the definition for a relevant POSA would be a chemist, as Dr. Reddy’s would prefer, or an oncologist, Lilly’s preferred definition. The Court found that the “relevant POSA who works to mitigate the toxicities of chemotherapy would be an oncologist.” Next, the Court had to determine if the function, way, result test, or the insubstantial differences test should be applied to the facts at hand. The Court decided that because the equivalency was based on chemical properties, the insubstantial differences test was more appropriate. Finally, under the context of this situation, the Court found that the pemetrexed ditromethamine and pemetrexed disodium treat a patient’s cancer in exactly the same way and that Dr. Reddy’s product was equivalent to Lilly’s product.

Finally, because the Court found that Dr. Reddy’s product infringes the ‘209 Patent, Dr. Reddy’s would induce and contribute to the infringement of the ‘209 Patent. Dr. Reddy’s product does not have any substantial use that would be noninfringing, so a physician administering the product would directly infringe the ‘209 Patent.

Practice Tip: Disclosure-Dedication Rule:

A generic reference to a written specification does not automatically dedicate all members of a particular genus to the public. “Rather, the ‘disclosure must be of such specificity that one of ordinary skill in the art could identify the subject matter that had been disclosed and not claimed.’Additionally, in Pfizer Inc. v. Teva Pharmaceuticals, USA, Inc., 429 F.3d 1364 (Fed. Cir. 2005), this court further clarified that ‘before unclaimed subject matter is deemed to have been dedicated to the public, that unclaimed subject matter must have been identified by the patentee as an alternative to a claim limitation.’” See SanDisk Corp. v. Kingston Technology Co., Inc., 695 F.3d 1348, 1363 (Fed. Cir. 2012).

The case was assigned to Judge Tanya Walton Pratt and Magistrate Judge Matthew P. Brookman in the Southern District and assigned Case 1:16-cv-00308-TWP-MPB.

FindingsOfFact

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The U.S. Patent Office issued the following 151 patent registrations to persons and businesses in Indiana in June 2018, based on applications filed by Indiana patent attorneys:

Overhauser Law Offices, the publisher of this site, assists with US and foreign patent searches, patent applications and assists with enforcing patents via infringement litigation and licensing.

Patent No. Title
1 D0821294 Tire
2 10008830 High-voltage extender for connecting a spark plug to a high-voltage source
3 10008375 Systems and methods for analyzing an extracted sample
4 10008374 Systems and methods for transfer of ions for analysis
5 10007592 Debugging non-deterministic embedded systems

6 10006927 Method of operating a laboratory automation system and a laboratory automation system
7 10006913 Fluorescent-HAP: a diagnostic stain for HBV cores in cells
8 10006705 Methods for treating tissue materials
9 10006687 Control circuit
10 10006654 NFC configuration of HVAC equipment
11 10006575 Modular push-to-connect assembly
12 10006551 Fluid additive control valve
13 10006432 Dual coil ignition system
14 10006115 Vacuum plasma sprayed coating including oxide dispersions
15 10005758 Process for the preparation of 3-(3-chloro-1H-pyrazol-1-yl)pyridine
16 10005721 Dimethylbenzoic acid compounds
17 10005651 Implements and methods of manufacturing and using same
18 10005608 Beverage systems and kits and methods of using the same
19 10005574 Method and device for handling test tubes in a laboratory automation system
20 10004726 Polymorphs of cocrystals of P-coumaric acid:nicotinamide
21 10004654 Patient bed having software download capability
22 10004620 Suture and wire stent deployment system
23 10004617 Woven stent device and manufacturing method
24 10004609 Surgical instrument and method
25 10004588 Method and apparatus for fixation of an ACL graft
26 10004538 Surgical instrument and method
27 10004516 Intramedullary resection guide and methods
28 10004515 Methods and devices to reduce damaging effects of concussive or blast forces on a subject
29 10004512 Occlusion device and method of use thereof
30 10004493 Method for implanting soft tissue
31 10004489 Method and apparatus for coupling soft tissue to a bone
32 10004483 Scoop cannula for a coring biopsy device
33 10004475 Echogenic surfaces with pressed-dimple formations
34 10004440 Enclosed desorption electrospray ionization probes and method of use thereof
35 10004203 Inbred corn line XMS07
36 10004202 Inbred corn line 7SSDE1042
37 10004194 Inbred corn line SMA12BM
38 PP029398 Floribunda rose plant named `WEKwibysicpep`
39 D0820989 Blood testing apparatus
40 D0820959 Faucet spout
41 D0820958 Faucet
42 10003545 Mobile phone application for diabetes care with medical feature activation
43 10003291 Hybrid surface magnet machine
44 10001609 Connector assembly
45 10001151 Air flow hood
46 10001121 System and method for operating a pump
47 10001084 Aircraft powerplant with moveable nozzle member
48 10001070 Multi-fuel engine controls including multi-factor cost optimization
49 10001042 Systems, methods, and apparatus for reductant dosing in an SCR aftertreatment system
50 10001035 Hydraulic lash adjuster
51 10001009 Pumpable mine ventilation structure
52 10000930 Spaced vent for metal roofs
53 10000811 Markers to predict macrocyclic lactone drug resistance in dirofilaria immitis, the causative agent of heartworm disease
54 10000806 Triplex event-specific reaction used to quantify specific events and possible contaminating events
55 10000639 Composite wood board
56 10000581 Therapeutic and imaging compositions and uses thereof
57 10000505 Anti-cancer agents and preparation thereof
58 10000432 Processes for the synthesis of chiral 1-alkanols
59 10000384 Method of laser direct synthesis of graphene
60 10000214 Vehicle controls including dynamic vehicle parameter determination
61 10000197 Mild hybrid powertrain controls
62 10000117 Filler neck closure assembly
63 9999726 Vented dispensing device and method
64 9999722 Portable medical fluid delivery device with drive screw articulated with reservoir plunger
65 9999624 Combination Alzheimer therapy using anti-N3pGlu Abeta antibodies + a BACE inhibitor
66 9999520 Osteoimplant and method of making same
67 9999494 Devices, systems, and methods for repair of vascular defects
68 9999398 Presenting data generated by a continuous glucose monitor
69 9999381 Device for performing at least one medical function
70 9999369 Laser-scribed ferrogel sensor with magnetic particles
71 9999185 Inbred corn line 2EEXX1039
72 9999184 Inbred corn line D054062
73 D0820403 Tub faucet
74 D0820400 Faucet
75 D0820399 Faucet
76 D0819994 Inflatable lounger
77 D0819993 Inflatable lounger
78 9998684 Method and apparatus for virtual 3D model generation and navigation using opportunistically captured images
79 9997599 MOS-based power semiconductor device having increased current carrying area and method of fabricating same
80 9995780 Trailer lighting outage detection circuit
81 9995769 Universal watthour meter socket/adapter for field testing
82 9995392 Method for manufacturing unitary hollow pistons
83 9995355 Cone brake friction surface coating
84 9995193 Mixer with swirl box for a vehicle exhaust system
85 9995128 Methods and systems for drilling boreholes
86 9995121 Selective removal of silica from silica containing brines
87 9995049 Swim spa with plenum arrangement at head end
88 9995023 Integral finial for a faucet
89 9994919 Floury 2 gene-specific assay in maize for floury (fl2) trait introgression
90 9994844 Parental RNAi suppression of chromatin remodeling genes to control coleopteran pests
91 9994828 Production of omega 3 long chain polyunsaturated fatty acids in oilseed crops by a thraustochytrid PUFA synthase
92 9994785 Thermally stable self-lubricating coatings
93 9994379 Container closure
94 9993626 Medical balloon assembly and method of making a medical balloon
95 9993580 Products comprising an extracellular matrix tissue material and osteogenic protein
96 9993579 Polyurethanes for osteoimplants
97 9993555 Rapid-acting insulin compositions
98 9993380 Surgery table apparatus
99 9993345 Femoral prosthesis system
100 9993344 Patient-modified implant
101 9993343 Method and apparatus for protecting modular implant connection
102 9993341 Metallic structures having porous regions from imaged bone at pre-defined anatomic locations
103 9993331 Low profile non-symmetrical stent
104 9993330 Endoluminal prosthesis system
105 9993272 Pediatric intramedullary nail
106 9993270 Bone fastener and methods of use
107 9993253 Dispensing device and method for delivering filamentary material into a patient
108 9993241 Method and apparatus for forming a self-locking adjustable loop
109 9993098 Insulated container with molded brim
110 9993034 Hidden control waistband garment
111 9992999 Solid aquatic herbicide formulations
112 9992948 Soybean variety 28G14W3168
113 9992947 Inbred corn line SLD04
114 9992946 Inbred corn line MPS11
115 9992944 Inbred corn line AB3010
116 9992938 Tarp tool
117 D0819382 Head end siderail
118 9990581 Insulin dosage assessment and recommendation system
119 9989677 Ultra-thin, planar, plasmonic metadevices
120 9989547 Laboratory sample distribution system and laboratory automation system
121 9989542 Systems and methods for hematocrit correction in analyte test strips
122 9989147 System and methods of adjusting a transmission shift schedule
123 9989128 Multi-speed transmission
124 9989125 Multi-speed transmission
125 9989123 Heavy duty transmission architecture
126 9988999 Thermal management for regenerating an aftertreatment device
127 9988991 Cylinder pressure based control of dual fuel engines
128 9988797 Integrated electronic shower system
129 9988718 Directed energy deposition with cooling mechanism
130 9988638 Synthetic bi-directional plant promoter
131 9988556 UV curable coating compositions containing aliphatic urethane acrylate resins
132 9988402 Amine-boranes bearing borane-intolerant functionalities
133 9988358 Phenazinium mediators
134 9988356 Processes for the preparation of pesticidal compounds
135 9988322 Process for fluorinating compounds
136 9987578 Gradient nanofiber filter media
137 9987461 Hemodialysis catheter with thrombus blocker
138 9987290 Methods for the separation and detection of an oxysterol
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Overhauser Law Offices the publisher of this site, assists with US and foreign trademark searches, trademark applications and assists with enforcing trademarks via infringement litigation and licensing.

Registration No.  Word Mark Click To View
5492269 M TSDR
5503233 NEED TO PARK TSDR
5504962 NEMACOAT TSDR
5502752 MAKING ORDINARY EXTRAORDINARY TSDR
5502668 MARBLE-RITA TSDR
5502660 ONE STEP MUD MAT STOPS DIRT AND WATER IN ITS TRACKS! TSDR

5502206 EZ TANKLESS TSDR
5502005 BOHO PRETTY TSDR
5501931 FLOURISH CICOA CARE MANAGEMENT TSDR
5501859 SCANPOWER TSDR
5501833 REDNECK RAVE TSDR
5501818 COTTON & CALM TSDR
5501807 RICKER’S KITCHEN TSDR
5501772 ZS TSDR
5501755 STAR CASE TSDR
5501708 HOME FURNISHING TSDR
5501706 ABC KIDS EXPO TSDR
5501705 TECH CONNECT TSDR
5501704 TECH CONNECT TSDR
5501647 BOUTIQUE MARKETPLACE TSDR
5501646 THE PLAZA TSDR
5501501 PEOPLE PLAYBOOK XXX TSDR
5504941 LINCOLN PROTECTED CHOICE 7 TSDR
5504940 LINCOLN PROTECTED CHOICE 5 TSDR
5501230 BANDIT TSDR
5501161 SCHOOL SMILES ON-SITE DENTAL TSDR
5504877 DSC TSDR
5500989 MAKE A GREAT CUT TSDR
5500953 SELF STORAGE MASTERMIND TSDR
5500932 T. ALLEN’S TSDR
5500913 ENDURANCE TSDR
5504609 COZYWEIGHT TSDR
5504608 COZYWEIGHT TSDR
5504585 NP NEW PAIGE LLC FEEDING YOUR SEED FOR THE PERFECT PAIGE IN LIFE TSDR
5500701 THE ACADEMY OF VETERINARY TECHNICIANS IN CLINICAL PRACTICE AVTCP TSDR
5500671 TOTAL SELF STORAGE WORLD DOMINATION TSDR
5500624 PIZZERIA CAMION TSDR
5500545 CONSTRUCTIONLIGHTS.COM TSDR
5504416 SOLVANTAGE TSDR
5504253 WHITETAILER TSDR
5505071 HIRECREDIT TSDR
5505047 ZORN TSDR
5503983 OPENSKY TSDR
5500264 TSDR
5500261 NAUTILUS TSDR
5503791 SPORTS LEGENDS EXPERIENCE TSDR
5492268 M MTI TSDR
5497962 25 MILLION DOLLAR MAN TSDR
5497937 NO BO TSDR
5497914 REDEFINING TRUST TSDR
5497790 THE CLEAR CHOICE TSDR
5497730 ASTERIA TSDR
5497711 FLATZAP TSDR
5497669 THE CLEAR CHOICE TSDR
5497618 WHIMSYKEL TSDR
5497436 ACCUTRUST CHEETAH TSDR
5497282 SPACE STATION MIDDLE FINGER TSDR
5496920 A TSDR
5496883 TSDR
5496705 MOSQUITO BLOCKERS TSDR
5496551 MATERNITY SQUARE TSDR
5496550 SUSTAINABLE ORGANIC NATURAL NATURALLY KIDS TSDR
5496546 MODERN CHILD MC COMPANIES FOR A MODERN LIFESTYLE TSDR
5496399 CENTRAL EXCLUSIVE TSDR
5499509 READYWIRED TSDR
5499504 BENCHBOSS TSDR
5495889 VERUS ENGINEERING TSDR
5495825 MIDWEST FRESH TSDR
5499333 BACK PACK BY EVS TSDR
5499328 PARKER GWEN TSDR
5495593 WE THINK OUTSIDE THE BOX! TSDR
5495592 MIDWEST TSDR
5495590 M TSDR
5495550 ACSM CERTIFIED EXERCISE PHYSIOLOGIST TSDR
5495549 ACSM CERTIFIED CLINICAL EXERCISE PHYSIOLOGIST TSDR
5495548 ACSM CERTIFIED PERSONAL TRAINER TSDR
5495547 ACSM-GEI TSDR
5495546 ACSM CERTIFIED GROUP EXERCISE INSTRUCTOR TSDR
5495545 ACSM REGISTERED CLINICAL EXERCISE PHYSIOLOGIST TSDR
5498907 LOW GLYCEMIC INDEX TSDR
5498825 5 SENTIDOS TÓMESE CON RESPETO TSDR
5495092 DIAL REPORT TSDR
5495091 DIAL REPORT TSDR
5498725 OHANA TSDR
5494017 BIOGLENA TSDR
5494361 ACES HIGH TSDR
5492174 TSDR
5492037 DWELLBEE TSDR
5492027 DWELLBEE TSDR
5492003 RALSTON’S DRAFTHOUSE TSDR
5491986 RUPERT AND JEOFFREY’S TRADING CO. TSDR
5491843 ERIN UNITE TSDR
5491582 317GROW TSDR
5491517 ABC TSDR
5491414 THE PLAZA TSDR
5491376 FOREVER LOYAL TSDR
5491375 SANTA’S TSDR
5491295 SANTA’S OFFICIAL MILK TSDR
5491272 TSDR
5491089 CASTLE INVESTMENT ADVISORS TSDR
5491088 CASTLE FINANCIAL GROUP TSDR
5491086 TSDR
5491084 CASTLE VALUATION GROUP TSDR
5491081 CASTLE WEALTH ADVISORS TSDR
5491006 TSDR
5490866 ELDER LAW GROUP PLLC TSDR
5490789 ARMED AND FEMININE IT’S YOUR LIFE. PROTECT IT TSDR
5494250 3(38) FLEX TSDR
5490550 ES ENGINEERED BY SCHILDMEIER TSDR
5490545 COOL COVER TSDR
5490290 SOFTBALLONE TSDR
5490206 TSDR
5493813 T TESIA TSDR
5493750 PARKVIEW SPORTS MEDICINE FORCE TSDR
5493749 PARKVIEW SPORTS MEDICINE FORCE TSDR
5489994 AXIOM TSDR
5489934 PURE FANDOM TSDR
5493695 SECRET COLLAGEN TSDR
5489861 FREEDOM MICRO TSDR
5489764 SPACE SAVER TSDR
5489669 MAMARAYS SPECIALTY SEASONINGS TSDR
5489649 DRIPLANE TSDR
5493531 MOVEMENT IS LIFE
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Eli Lilly & Company and its subsidiary, Elanco US Inc., both of Greenfield, Indiana, filed suit in the Eastern District of Wisconsin alleging that Arla Foods, Inc. USA of Denmark, and Arla Foods Production LLC a Delaware Corporation used false advertising and unfair business practices in regards to Arla brand cheeses.

In 2017, Arla Foods launched a $30 million advertising campaign focused on expanding its cheese sales in the U.S. These advertisements included ads featuring a seven-year-old girl describing recombinant bovine somatotropin (“rbST”), an artificial growth hormone used to treat cows, as a type of monster. The ads implied that milk from cows that were treated with rbST was unwholesome and unnatural, therefore not good for your family.

Elanco makes the only FDA-approved rbST supplement, marketed under the name Posilac®. After the Arla campaign launched, Elanco filed suit alleging that Arla was in violation of the Lanham Act and simultaneously moved for a preliminary injunction with supporting copies of ads, evidence that a major cheese distributor decreased its purchasing of rbST in response to the ad campaign, and scientific literature pertaining to rbST’s safety. The district judge issued the requested injunction and later modified the injunction to cure technical deficiencies.

Arla then appealed to the Seventh Circuit Court of Appeals arguing that because Elanco did not conduct consumer surveys, failed to submit other evidence of actual consumer confusion, and did not submit enough evidence to link the ad campaign and the decrease demand for rbST, the preliminary injunction was improper. Arla also claimed the injunction, even after modified, was vague, overbroad, and lacking adequate factual findings.

The Seventh Circuit affirmed the district court finding that consumer surveys and other hard evidence are not necessary at the preliminary injunction stage. Further, the harm was easily traceable from the advertisement as Elanco is the only FDA-approved rbST provider on the market. Finally, the court found the modified injunction to be adequately supported and sufficiently definite.

Practice Tip: The Lanham Act provides for a national system of trademark registration and protects owners of registered marks against the use of similar marks that are likely to result in customer confusion or trademark dilution.

Plaintiffs asserting a legal claim for deceptive-advertising under the Lanham Act must establish that (1) the defendant made a material false statement of fact in a commercial advertisement; (2) the false statement actually deceived or had the tendency to deceive a substantial segment of its audience; and (3) the plaintiff has been or is likely to be injured as a result of the false statement. See Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 819 (7th Cir. 1999).

This opinion was written by Judge William J. Bauer, Judge Ilana K. Rovner, and Judge Diane S. Sykes in the United States Court of Appeals for the Seventh Circuit and assigned case number 17-2252.

Lilly-v-Arla-Opinion

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Indianapolis, Indiana  – Stone Basket Innovations, LLC of Austin, Texas, filed a patent infringement lawsuit in the Eastern District of Texas which was transferred to the Southern District of Indiana alleging that Cook Medical, LLC of Bloomington, Indiana, infringed Patent No. 6,551,327 (“‘327 Patent”), Endoscopic Stone Extraction Device with Improved Basket, issued by the US Patent Office.

The initial Complaint for this case was filed on April 8, 2015. Defendant served their invalidity contentions in October 2015 and deposed the ‘327 patent’s inventor in January of 2016. During the deposition, the inventor stated in regards to an addition to overcome an examiner’s rejection, “I realize there is nothing novel about it.” Defendant then petitioned the U.S. Patent and Trademark Office for inter partes review (IPR) of all the claims. The District Court case was stayed pending the outcome of the petition for an IPR based off a joint motion.

After the IPR was instituted in September 2016, Plaintiff offered to license the ‘327 patent to Defendant for $150,000.00. Negotiations fell through and the settlement did not occur. Plaintiff then filed a motion requesting an adverse judgment in the IPR proceeding in December 2016 and moved to dismiss the District Court case with prejudice, both of which were granted.

Defendant filed its § 285 Motion in March 2017, but the motion was denied as the District Court determined the case was not “exceptional.” Defendant appealed the decision, but the decision was affirmed after it was reviewed for abuse of discretion by the United States Court of Appeals for the Federal Circuit (CAFC). The CAFC found that the substantive strength of the Plaintiff’s litigation position did not warrant an award of fees even though they were the non-prevailing party. Further, they found the Plaintiff’s conduct in other litigation did not rise to the level of “exceptional” to justify an award of fees for filing suits and forcing nuisance settlements.

Practice Tip:  A “court in exceptional cases may award reasonable attorney fees to the prevailing party.” 35 U.S.C. § 285. “[A]n ‘exceptional’ case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. .1749, 1756 (2014).

This lower court case was assigned to District Judge Larry J. McKinney and Magistrate Judge Tim A. Baker in the Southern District of Indiana, and assigned Case No. 1:16-cv-00858-LJM-TAB. The appeal was before Chief Circuit Judge Sharon Prost, Circuit Judge Evan J. Wallach and Circuit Judge Richard G. Taranto with Judge Wallach writing the Opinion, Court of Appeals for the Federal Circuit Court of Appeals, Case. No. 2017-2330.

Opinion Stone Basket vs. Cook

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Indianapolis, Indiana – Attorney for Plaintiff, Linda Matlow of Chicago, Illinois filed suit in the Southern District of Indiana alleging that Defendant, Rodgers Broadcasting Corp. of Richmond, Indiana, infringed its rights to the “Parr Photo” registered on December 7, 2011 with the U.S. Copyright Office, Registration Number VAu 1-085-861. Plaintiff is seeking actual and/or statutory damages, costs, attorney’s fees, an injunction, and any other relief as is just and proper.

Plaintiff’s Attorney, Bell, has filed many lawsuits on his own behalf asserting copyright infringement in Indiana federal courts. Bell has been unsuccessful as a plaintiff in many of his own infringement cases and has been ordered to pay the Defendant’s fees as a result. See:

According to the complaint, the Plaintiff took the photograph in question in the 1980’s and proceeded to register the photograph with the U.S. Copyright Office in 2011. Plaintiff alleges that the Defendant infringed on her copyright when its subsidiary KMIX 106.9 published the photograph on their Twitter account in 2017.

In addition to alleging copyright infringement, the Plaintiff alleges that the Defendant allowed third parties to copy the photograph from their Twitter account. Therefore, the Plaintiff alleges that the Defendant is vicariously liable for every instance that the photograph was downloaded from their account by a third party. Plaintiff is further seeking damages for all profits resulting from the third-party downloads.

The case was assigned to Chief Judge Jane E. Magnus-Stinson and Magistrate Judge Mark J. Dinsmore in the Southern District and assigned Case 1:18-cv-01782-JMS-MJD.

Matlow vs. Rodgers Complaint.

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