UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

THE ART OF DESIGN, INC., )

)

Plaintiff, )

)

v. ) Case No.: 3:16-cv-00595

)

PONTOON BOAT, LLC, d/b/a )

Bennington and Bennington Marine; ) JURY DEMANDED

and HAWKEYE BOAT SALES, INC., )

)

Defendants. )

COMPLAINT

Plaintiff The Art of Design, Inc. (“TAOD”), by counsel, for its complaint against 

Defendants Pontoon Boat, LLC, doing business as Bennington and Bennington Marine 

(“Bennington”), and Hawkeye Boat Sales, Inc. (“Hawkeye”), hereby alleges as follows:

NATURE OF THE ACTION

1. This is a civil action for copyright infringement arising under the copyright 

laws of the United States, 17 U.S.C. §101 et seq., as amended (the “Copyright Act”), and 

unfair competition arising under state law. 

PARTIES, JURISDICTION, AND VENUE

2. TAOD is a corporation organized under the laws of the State of Indiana with 

its principal office located at 104 Rush Court, Elkhart, Indiana 46516. 

3. Defendant Bennington is a limited liability company organized under the 

laws of the State of Delaware with its principal office located at 2805 Decio Drive, Elkhart, 

Indiana 46514. Bennington may be served through its registered agent, Diana Engle, 

2805 Decio Drive, Elkhart, Indiana 46514.

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4. Defendant Hawkeye is an Iowa corporation authorized to do business, and 

which regularly transacts business, in the state of Indiana, including within this judicial 

district. In particular, Hawkeye regularly conducts business in Indiana with Bennington. 

Hawkeye may be served by serving its registered agent, Stuart G. Hoover, 850 White 

Street, Dubuque, IA 52001-7035.

5. This Court has subject matter jurisdiction over this dispute pursuant to 28 

U.S.C. §§ 1331, and 1338(a) and (b).

6. Venue of this action in the Northern District of Indiana, South Bend 

Division, is based on 28 U.S.C. § 1391(b) and (c). 

FACTUAL ALLEGATIONS

TAOD’s Original Designs

7. TAOD is and for many years has been among the most successful and highly 

respected companies in the United States engaged in the business of custom airbrushing 

and fine art. Among other things, TAOD designs custom artwork for corporate and 

personal clients, and has done specialty work for most major motorcoach and boat 

companies. TAOD markets its designs and ability to create custom designs throughout 

the United States via the internet, magazines, and direct to clients.

8. TAOD’s success is due in no small measure to its employment, at great cost 

to TAOD, of highly talented individuals who create for TAOD original and attractive twodimensional designs (“TAOD Designs”) that are often reproduced and/or applied to, 

among other things, boats, recreational vehicles, airplanes, automobiles, and helicopters.

9. TAOD Designs are applied by TAOD to any “canvas” in TAOD’s 15,000-

square-foot, state-of-the-art design and paint studio.

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10. The TAOD Designs are created by TAOD’s employees and constitute 

copyrightable subject matter under the Copyright Act.

11. TAOD owns all right, title, and interest in and to the TAOD Designs.

The Shatter Graphics

12. TAOD created and is the author of designs known as the “Shatter Graphics”. 

TAOD owns all right, title, and interest in and to the Shatter Graphics. The Shatter 

Graphics are works of visual art pursuant to Section 106A of the Copyright Act.

13. The Shatter Graphics are also registered in TAOD’s name at the United 

States Copyright Office under registration numbers VA 1-979-388 and 1-982-002.

Defendants’ Infringing Activities

14. Defendants are in the business of selling products in the marine industry. 

Among other things, Defendants sell pontoon boats. 

15. As part of Defendants’ advertising and marketing efforts, Defendants 

purport to create custom pontoon boats.

16. Defendants’ are selling, distributing, and have sold pontoon boats bearing 

designs that are copied from and substantially similar to TAOD’s Shatter Graphics,

without authorization from TAOD.

17. Defendant Bennington obtained access to the Shatter Graphics from TAOD 

in 2011. Around that time, Bennington representatives approached TAOD and requested

that TAOD suggest a TAOD design to be applied to a limited number of Bennington 

pontoon boats.

18. TAOD provided Bennington with numerous samples of TAOD-owned 

designs and Bennington ultimately opted for the Shatter Graphics to be placed on the 

exterior of Bennington’s boats. The designs presented to Bennington each contained the 

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following notice: “TAOD DESIGNS ARE THE PROPERTY OF TAOD. THEY ARE NOT 

TO BE REPRODUCED, COPIED OR FORWARDED TO ANYONE WITHOUT WRITTEN 

PERMISSION.”

19. TAOD and Bennington entered into an agreement whereby TAOD would 

apply the Shatter Graphics to the exterior of a limited number of Bennington boats in 

exchange for payment by Bennington. A copy of TAOD’s invoice to Bennington is 

attached as Exhibit A.

20. Pursuant to the agreement, TAOD painted the Shatter Graphics onto a 

limited number of Bennington boats.

21. Thereafter, TAOD discovered that Bennington continued selling, 

advertising, and distributing products incorporating the Shatter Graphics design, or 

designs that are substantially similar to the Shatter Graphics design, without TAOD’s 

license, permission, or consent. Bennington continues to sell, advertise, and distribute 

products incorporating the Shatter Graphics design or designs that are substantially 

similar to the Shatter Graphics design without TAOD’s license, permission, or consent.

22. Bennington also provided the Shatter Graphics design, or designs that are 

substantially similar to the Shatter Graphics design, to Hawkeye, another marine 

dealer/retailer, without TAOD’s license, permission, or consent. 

23. Hawkeye then began selling, advertising, and distributing marine products

incorporating the Shatter Graphics design or designs that are substantially similar to the 

Shatter Graphics design without TAOD’s license, permission, or consent. Hawkeye 

continues to sell, advertise, and distribute products incorporating the Shatter Graphics 

design, or designs that are substantially similar to the Shatter Graphics design, without 

TAOD’s license, permission, or consent.

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24. Bennington’s infringing designs may be found at its websites 

www.benningtonmarine.com and www.clubbennington.com.

25. Hawkeye’s infringing designs may be found at its website 

www.hawkeyeboatsales.com.

26. On March 3, 2015, TAOD, through its counsel, sent a letter to Defendants 

demanding that it cease its infringing activities.

27. Bennington, through its counsel, denied TAOD’s demands.

28. Hawkeye has not responded to TAOD’s demands.

CLAIMS FOR RELIEF

Count I – Breach of Contract against Bennington

29. TAOD incorporates by reference all preceding allegations as if fully set forth 

in this paragraph.

30. As set forth above, TAOD and Bennington entered into a valid and 

enforceable contract. 

31. TAOD fully performed all of its obligations under the contract. 

32. Bennington breached its contractual duties by advertising, selling, or 

distributing products displaying the Shatter Graphics design or designs substantially 

similar to the Shatter Graphics design, without TAOD’s license, permission, or consent, 

and without paying TAOD for use of the Shatter Graphics.

33. As a result of Bennington’s breach of the contract, TAOD has been damaged 

in an amount to be determined at trial.

Count II – Unjust Enrichment against all Defendants

34. TAOD incorporates by reference all preceding allegations as if fully set forth 

in this paragraph.

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35. Defendants have received and continue to receive a measurable benefit by 

receiving the value of TAOD’s labor, services, and designs without paying TAOD.

36. Defendants’ retention of this measurable benefit is unjust.

37. As a result, Defendants have been unjustly enriched in an amount to be 

determined at trial.

Count III – Copyright Infringement against all Defendants

38. TAOD incorporates by reference all preceding allegations as if fully set forth 

in this paragraph.

39. Defendants, without license, permission, or consent from TAOD, are 

selling, distributing, advertising, and have sold goods bearing a design that is copied from 

and/or substantially similar to the Shatter Graphics.

40. Defendants have thereby infringed TAOD’s copyright in the Shatter 

Graphics.

41. Defendants’ infringing acts were committed with knowledge and in reckless 

disregard of TAOD’s exclusive rights in the Shatter Graphics under Sections 106 and 106A 

of the U.S. Copyright Act.

42. By the acts complained of, Defendants have made substantial profits and 

gains which they are not in law or in equity entitled to retain.

43. The aforementioned acts by Defendants have damaged, and if not enjoined, 

will continue to damage TAOD and cause it irreparable harm, for which TAOD has no 

adequate remedy at law.

Count IV – Unfair Competition against all Defendants

44. TAOD incorporates by reference all preceding allegations as if fully set forth 

in this paragraph.

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45. The aforementioned acts of Defendants constitute unfair competition, 

unlawful under the laws of the State of Indiana.

46. By the acts complained of, Defendants have made substantial profits and 

gains, which they are not in law or in equity entitled to retain.

47. The aforementioned acts by Defendants have damaged, and if not enjoined, 

will continue to damage TAOD and cause it irreparable harm, for which TAOD has no 

adequate remedy at law.

Count V – Inducing Copyright Infringement against Bennington

48. TAOD incorporates by reference all preceding allegations as if fully set forth 

in this paragraph.

49. As described above, Bennington actively and knowingly caused, urged, 

encouraged, or aided Hawkeye in infringing TAOD’s copyright in the Shatter Graphics.

50. In doing so, Bennington had the specific intent to infringe TAOD’s copyright 

in the Shatter Graphics and Bennington knew that it was inducing activity that infringed 

TAOD’s copyright.

51. As a result of Bennington’s inducing copyright infringement, TAOD has 

been damaged in an amount to be determined at trial.

Count VI – Violations of DMCA, 17 U.S.C. § 1202

52. TAOD incorporates by reference all preceding allegations as if fully set forth 

in this paragraph.

53. Additionally and alternatively, Defendants violated §1202, et seq. of the 

Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. §1202.

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54. In creating promotional photographs and advertisements for Defendants’ 

websites and other publications, Defendants intentionally removed, and omitted TAOD’s 

copyright management information from copies of TAOD’s works.

55. Said Defendants thereafter distributed copies or derivatives of such works 

knowing that such copyright management information had been removed or omitted 

without proper authorization.

56. At the time said Defendants removed TAOD’s copyright management 

information from copies of its works, and at the time they distributed copies of the works 

from which the copyright management information had been removed or omitted, said 

Defendants knew or had reasonable grounds to know that such behavior would induce, 

enable, facilitate, or conceal the infringement of TAOD’s copyrights.

57. TAOD is entitled and seeks to recover from Defendants statutory damages 

not exceeding $25,000 for each act committed in violation of its rights under 17 U.S.C. §

1202.

58. Pursuant to 17 U.S.C. §1203(b)(5), TAOD is entitled and seek to recover its 

reasonable attorney’s fees.

59. The aforementioned acts of Defendants have damaged and continue to 

damage TAOD in an amount to be determined at trial.

PRAYER FOR RELIEF

WHEREFORE, TAOD requests that the Court:

1. Enter judgment that Defendants have infringed upon TAOD’s copyrights in 

the Shatter Graphics in violation of Sections 106 and 106A of the U.S. Copyright Act;

2. Preliminarily and permanently enjoin Defendants, their officers, directors, 

agents, partners, employees and related companies, and all persons acting for, with, by, 

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through or under them, from manufacturing, copying, reproducing, distributing, 

advertising, promoting, offering for sale or selling any product or article bearing any 

design identical or substantially similar to any of TAOD’s designs, including the Shatter 

Graphics;

3. Order the impoundment of the infringing products pursuant to 17 U.S.C. § 

503; 

4. Order Defendants, their officers, directors, agents, partners, employees, 

and related companies, and all persons acting for, with, by, through, or under them, to 

destroy all products or articles infringing in the TAOD designs, including the Shatter 

Graphics, as well as all other infringing materials;

5. (a) Award to TAOD its actual damages incurred as a result of Defendants’ 

acts of copyright infringement, and all profits Defendants realized as a result of their acts 

of copyright infringement, in amounts to be determined at trial; or (b) in the alternative, 

TAOD, pursuant to 17 U.S.C. § 504, statutory damages;

6. Award to TAOD, pursuant to 17 U.S.C. § 505, its costs and attorneys’ fees 

incurred as a result of Defendants’ acts of copyright infringement;

7. Award to TAOD its actual damages incurred and all profits realized by 

Defendants as a result of their acts of unfair competition, inducing infringement, breach 

of contract, unjust enrichment, and civil conspiracy;

8. Award to TAOD treble the amount of its damages sustained as a result of 

Defendants’ violations of Indiana Code § 34-24-3-1;

9. Award TAOD statutory damages not exceeding $25,000 for each act 

committed in violation of its rights under 17 U.S.C. § 1202 and attorney’s fees pursuant to 

17 U.S.C. §1203(b)(5);

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10. Award to TAOD punitive damages as a result of Defendants’ acts of unfair 

competition, inducing infringement, breach of contract, and civil conspiracy pursuant to 

Ind. Code § 34-51-3 et seq.; and

11. Award to TAOD such other and further relief as the Court deems just and 

proper.

JURY DEMAND

TAOD requests a trial by jury on all claims so triable.

Dated this 6th day of September, 2016.

Respectfully submitted,

/s/ Sean J. Quinn

John D. LaDue (19039-71)

Sean J. Quinn (29441-71)

LaDue | Curran | Kuehn

200 First Bank Building

205 West Jefferson Boulevard

South Bend, IN 46601

Tel: 574.968.0760

Fax: 574.968.0761

jladue@lck-law.com

squinn@lck-law.com

Attorneys for The Art of Design, Inc.

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