Indianapolis, Indiana – Attorneys for Plaintiffs, LeSEA, Inc., Family Broadcasting Corporation (“FBC”), and LeSEA Global Feed the Hungry, Inc., all three Indiana non-profit corporations, filed suit in the Northern District of Indiana alleging that Defendants, LeSEA Broadcasting Corporation (“LBC”), a Colorado non-profit Corporation, Lester Sumrall of Bristol, Indiana, Dr. John W. Swails III of Tulsa, Oklahoma, and Edward Wassmer, Vice President of LBC, infringed its rights in United States Registration No. 2,206,912 for “LESEA GLOBAL FEED THE HUNGRY” and United States Registration No. 2,122,820 for “LESEA GLOBAL”. Plaintiff is seeking damages, litigation expenses, reasonable attorneys’ fees and costs.
LeSEA, Inc. was founded in 1957 by Dr. Lester Frank Sumrall, now deceased, and has been a Christian, non-profit operating a variety of ministries including a bookstore and a Bible college ever since. LeSEA Global oversees food and disaster relief efforts for LeSEA, Inc. and has delivered more than $200 million of food and supplies to hungry people around the world through generous donations. FBC, formerly known as LeSEA Broadcasting, operates television and radio stations along with a 24-hour prayer line, and other religious based programs.
According to the Plaintiffs, Defendant Lester Sumrall (“Lester”) has a false belief that he is the “rightful spiritual and legal heir” of LeSEA and based upon this belief, he has continually acted in an abusive, harassing manner towards LeSEA and his family members involved in the company. As such, Lester has attempted to interfere with LeSEA’s relationships with its lenders and clients, sought injunctions against it, and filed improper leans against LeSEA. Lester issued multiple press releases, utilizing the LeSEA registered marks, spreading false claims about LeSEA stating that it was under investigation by The Office of the Indiana Attorney General and that it had been mismanaged, which could endanger the organization’s tax-exempt status. Lester has also tried to interfere with the administration of multiple family members’ estates and even a family member’s divorce due to his false beliefs.
Defendants changed “Lester Sumrall International, Inc” to “LeSEA Broadcasting Corporation” on August 6, 2018. They also filed five certificates for assumed business names in the State of Indiana that all utilize the LeSEA name, in large part, around the same time of the name change. LBC changed its mailing address to a P.O. Box with one digit removed from the mailing address of LeSEA on October 1, 2018 in an effort to obtain donations and mail meant for LeSEA. Throughout these changes, LBC began wrongfully using LeSEA’s trademarks in connection with offering similar goods and services as LeSEA.
Plaintiffs are asserting claims against all Defendants for trademark infringement, false association, false designation of origin, unfair competition, deception, conversion, forgery, theft, counterfeiting, and criminal mischief for the Defendants’ unlawful acts and unauthorized use of LeSEA’s trademarks. LeSEA is further asserting a claim for tortious intentional interference with contractual and business relationships against Lester, individually, for his willful actions against it and its lenders and clients.
Indianapolis, Indiana – Attorneys for Plaintiff, Dexas International, Ltd. of Coppell, Texas filed suit in the Southern District of Indiana alleging that Defendant, Menard, Inc. of Eau Claire, Wisconsin infringed its rights in United States Copyright Registration No. VA 2-118-094 (“Dexas Cutting Board Photo”). Plaintiff is seeking costs, reasonable attorneys’ fees, injunctive relief, and post judgment interest.
A Dexas employee created an original art piece entitled “Dexas Cutting Board Photo” within the scope of his employment in 2013 (the “Dexas Photo”). This art piece was for use in the product insert label for the Dexas cutting board. On April 4, 2018, Dexas applied for copyright registration for the Dexas Photo.
Dexas alleges that at least as of 2017, if not earlier, Menard began selling a “Collapsible Colander Cutting Board Set” with a label insert that includes the unauthorized copy of or derivative work based on the Dexas Photo. Further, Dexas believes Menard has manufactured, imported, published, sold, and/or distributed unauthorized copies of, or derivative works based upon the Dexas Photo and those were sold to consumers.
Although Dexas is claiming reasonable attorneys’ fees, as provided by the Copyright laws, Menard should be expected to argue strongly against this claim. Pursuant to 17 U.S.C. § 412, “no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for – . . . (2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.” In this case, approximately five years passed before Dexas applied for copyright registration, which is well over three months after the first publication of the work. Therefore, Menard should be expected to prevail on the issue of attorneys’ fees.
In the Opinion written by Justice David, the Indiana Supreme Court concluded Indiana’s right of publicity statute contains an exception for material of newsworthy value that includes online fantasy sports operators’ use of college players’ likenesses for contests.
The certified question from the Seventh Circuit Court of Appeals asked, “[w]hether online fantasy-sports operators that condition entry on payment, and distribute cash prizes, need the consent of players whose names, pictures, and statistics are used in the contests, in advertising the contests, or both.” All the Plaintiffs were collegiate student-athletes at different times from 2014-2016. Their statistics, names, and images were used by Defendants in their fantasy sports competitions to allow consumers to build their ideal fantasy team within a capped salary based on artificial prices for each player. The player’s performance translated to a point value determined by Defendants and consumers accumulated these points to become eligible to win cash prizes.
Indianapolis, Indiana – In April of 2018, Attorneys for Plaintiff, Joe Hand Promotions, Inc., of Feasterville, Pennsylvania, filed suit in the Southern District of Indiana alleging that Defendants, The Anchor Lounge, LLC, d/b/a The Anchor Lounge, of Muncie, Indiana, and Randy Phillips, an individual residing in Delaware County, Indiana, infringed its rights in the “Ultimate Fighting Championship® 207: Nunes v. Rousey” (the “Program”). Plaintiff sought statutory damages, attorney’s fees, interest, and cost of suit. On October 25, 2018, the court entered default judgment in the Plaintiff’s favor.
Joe Hand is in the business of licensing and distributing pay-per-view sporting events to commercial locations. In their Memorandum of Points and Authorities in Support of their default motion, they claim that Defendants realized a profit of $1,155.00 by not paying the approximate licensing fee they would have paid if they had contracted with Joe Hand. Plaintiffs have filed multiple lawsuits in Indiana and across the nation against commercial establishments that have not contracted with them to exhibit pay-per-view programs, such as the Program in this case, seeking damages under 47 U.S.C. §§ 553 and 605.
While Plaintiff has received default judgments in two separate cases in Indiana this week, the Southern and Northern District Courts awarded the damages in two different manners. For instance, the Southern District in this case awarded Joe Hand the full requested amount of $41,570.00. The Judge in the Northern District, however, parsed out the specific amounts due under the statutes and reduced the award amount requested by more than half. This shows that judges are able to use their discretion in awarding damages and do not have to award the full amount requested just because the defendant did not appear, but they may if they believe the amount requested is sufficient.
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South Bend, Indiana – In April 2018, Attorneys for Plaintiff, Joe Hand Promotions, Inc. (“Joe Hand”), of Feasterville, Pennsylvania, filed suit in the Northern District of Indiana alleging that Defendants, MBK Holdings, Inc. d/b/a Matey’s Restaurant & Bar, of Michigan City, Indiana, Bryan Konieczny, and Mark Kehoskie, both individuals residing in Indiana, infringed its rights in the “UFC 202: Diaz v. McGregor 2”, “UFC 203: Miocic v. Overeem”, “UFC 205: Alvarez v. McGregor”, “UFC 207: Nunes v. Rousey”, “UFC 208: Holm v. de Randamie”, and UFC 210: Cormier v. Johnson 2” (the “Programs”). Plaintiff sought statutory damages, attorney’s fees, interest, and costs. Default Judgment in favor of Joe Hand Promotions, Inc. was entered as of October 19, 2018.
Joe Hand specializes in exclusively distributing and licensing premier, pay-per-view sporting events, including the Programs, to commercial locations. Plaintiff worked with multiple locations in Indiana to license and distribute the Programs so the commercial establishments could show them to their patrons. Defendants did not contract with the Plaintiff to show the Programs, even though they could have and could have paid the accompanying licensing fee of approximately $1,680.00 for such. Joe Hand asserts that Defendants willfully intercepted the interstate communication of the Programs and unlawfully exhibited them to their patrons within their commercial establishment.
Plaintiff sought judgment against Defendants for wrongful actions violating 47 U.S.C. § 605, or alternatively, 47 U.S.C. § 553. They asked for the maximum statutory damages of $110,000.00 under 47 U.S.C. § 605, or alternatively, the maximum statutory damages of $60,000.00 under 47 U.S.C. § 553, plus attorney’s fees, interest, and costs. While the Judge did enter a default judgment against the Defendants, he did not enter the entire amount of statutory damages requested. Instead, he broke down the total damages of $42,002.00 as follows:
$10,080.00 in statutory damages under 47 U.S.C. § 605(e)(3)(C)(i)(II);
$30,240.00 in additional damages under 47 U.S.C. § 605(e)(3)(C)(ii);
$562.00 in attorney’s fees;
$400.00 in costs; and
66% post-judgment interest.
Many times in litigation, judges award the entire amount sought in the event of a default judgment, but the Judge in this case took the time to parse out damages under the statutes.