author: FRIEDLANDER, Judge.

text:
    SERENITY SPRINGS, et al., Appellants, v. The LAPORTE COUNTY CONVENTION AND VISITORS BUREAU, Appellee.
    No. 46A03-1205-MI-214.
    Court of Appeals of Indiana.
    April 15, 2013.

      Jonathan A. Watson, Wandling & Associates, South Bend, IN, Attorney for Appellant.
    Michael S. Bergerson, Law Offices of Michael S. Bergerson, Michigan City, IN, Attorney for Appellee.
   OPINION

FRIEDLANDER, Judge.

Serenity Springs, Inc. and its principal owner, Laura Ostergren, (collectively, Serenity) appeal from the trial court’s order permanently enjoining Serenity from using the designation “Visit Michigan City La-Porte” and ordering Serenity to transfer the domain name registration for visitmi-chigancitylaporte.com to the LaPorte County Convention and Visitors Bureau (thé Bureau). Serenity raises three issues, which we consolidate and restate as follows: Did the trial court err in concluding that Serenity committed trademark infringement and cybersquatting? The Bureau cross-appeals and requests an award of appellate attorney fees. Concluding that the Bureau did not establish that Serenity committed trademark infringement or cybersquatting because it failed to establish that it held a valid and protectable trademark in the designation “Visit Michigan City LaPorte,” we reverse the trial court’s judgment and remand with instructions to consider the Bureau’s remaining claims. Additionally, because Serenity has prevailed in this appeal, we deny the Bureau’s request for appellate attorney fees.

The Bureau is a special-purpose governmental unit governed by Ind.Code Ann. § 6-9-6 (West, Westlaw current through 2012 2nd Reg. Sess.). Its mission statement provides that it is “the official destination marketing organization that represents the visitor industry and communities to create economic growth from visitor expenditures.” Appellee’s Appendix at 6. The Bureau’s goal is to increase tourism in LaPorte County, and in doing so, the Bureau promotes a number of hotels and attractions in the area. Serenity operates a hotel resort in LaPorte County, which is one of the businesses promoted by the Bureau.

In early 2009, the Bureau contracted with a private marketing firm to conduct a branding study for the purposes of identifying new and better ways to promote tourism in the area. On September 9, 2009, the Bureau held a public meeting at which the results of the branding study were announced, and a representative of Serenity was in attendance. The Bureau’s representatives announced that the phrase “Visit Michigan City LaPorte” had been identified as the branding identifier for the area.

Immediately after the meeting, an employee of Serenity registered the domain name “visitmichigancityIaporte.com” at Os-tergren’s behest and set it up to redirect internet traffic to Serenity’s website. Later that day, an employee of the Bureau attempted to register the same domain name, but discovered that it had already been purchased and was being used to direct internet traffic to Serenity’s website. The Bureau was able to register a number of similar domain names, including visitmi-chigancitylaporte.org, visitmichigancityla-porte.net, and michigancitylaporte.com.

.Thereafter, the Bureau sent a cease- and-desist letter to Serenity claiming that Serenity had infringed its trademark and committed cybersquatting by registering visitmichigancitylaporte.com. Serenity responded that it had been unable to find any federal or state trademark registrations for Visit Michigan City LaPorte and further claimed that (1) Serenity had not committed trademark infringement because it registered- and began using the visitmichigancitylaporte.com domain name before the Bureau made any commercial use of the designation Visit- Michigan City LaPorte, and (2) that the designation was not protectable as a trademark because it was merely descriptive and had not acquired distinctiveness. Appellee’s Appendix at 58-54.

On April 29, 2010, the Bureau filed an application with, the Secretary of State to register “ ‘Visit Michigan City LaPorte’ and logo” as a trademark under the Indiana Trademark Act. Appellant’s Appendix at 17. In its application, the Bureau indicated that the mark was first used in commerce on September 9, 2009, and disclaimed any rights to the words “Michigan City” or “LaPorte.” Id. The Bureau received a certificate dated May 13, 2010 indicating that “Visit Michigan City LaPorte” had been registered as a trademark with the Secretary of State. Id. at 16. The certificate also indicated that the mark was first used on September 9, 2009, and the words “Michigan City LaPorte” had been disclaimed. Id.

On May 26, 2011, the Bureau sent another cease-and-desist letter to Serenity, again asserting that Serenity was infringing its rights in the now-registered trademark. The Bureau attached a copy of the certificate of trademark registration to the letter and informed Serenity that the letter would be its final attempt to resolve the matter before taking legal action.

Serenity sent a response letter to the Bureau on June 1, 2010. In the letter, Serenity again asserted that it was the first party to use the mark in commerce, and argued further that the Bureau’s registration of the mark did not affect Serenity’s common-law rights to use the mark or confer retroactive trademark rights. Serenity stated that it was willing to assign the domain name to the Bureau if it could provide proof that it first used the mark in commerce on or before September 9, 2009. Serenity argued that if the Bureau had not used the mark in commerce by that date, it had fraudulently misrepresented the date of first use on the application for trademark registration, which would result in cancellation of the registration.

On January 4, 2011, the Bureau filed a complaint against Serenity alleging trademark infringement, cybersquatting, and unfair competition. The Bureau also sought and obtained a preliminary injunction prohibiting Serenity from using the domain name. The matter proceeded to a bench trial on March 8, 2012, and the trial court entered judgment in favor of the Bureau on May 1, 2012. The trial court concluded that Serenity had violated Indiana law by committing trademark infringement and “cybersquatting that approaches cyberpiraey[.]” Appellant’s Appendix at 13. The trial court permanently enjoined Serenity from using the Visit Michigan City LaPorte designation or the domain name visitmichigancitylaporte.com, and further ordered Serenity to transfer the domain name registration to the Bureau. This appeal ensued.

1.

Serenity appeals from a judgment entered following a bench trial. In reviewing claims tried by the bench without a jury, our court shall not set aside the judgment “unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Ind. Trial Rule 52(A). “In determining whether a judgment is clearly erroneous, we will not reweigh the evidence or determine the credibility of witnesses but will consider only the evidence that supports the judgment and the reasonable inferences to be drawn from that evidence.” Bennett v. Broderick, 858 N.E.2d 1044 (Ind.Ct.App.2006), trans. denied.

We define the clearly erroneous standard based upon whether the party is appealing a negative or an adverse judgment. Garling v. Ind. Dep’t of Natural Res., 766 N.E.2d 409 (Ind.Ct.App.2002), trans denied. “A negative judgment is one entered against a party who bears the burden of proof, while an adverse judgment is one entered against a party defending on a given question.” Id. at 411. In the instant case, the trial court entered judgment in favor of the Bureau, the party bearing the burden of proof at trial. Accordingly, Serenity is appealing an adverse judgment. Under these circumstances, we hold the trial court’s findings clearly erroneous if they are not supported by substantial evidence of probative value. Garling v. Ind. Dep’t of Natural Res., 766 N.E.2d 409. Moreover, “[ejven if the supporting evidence is substantial, we will reverse the judgment if we are left with a definite and firm conviction a mistake has been made.” Id. at 411.

Serenity argues that the trial court erred in concluding that it had committed trademark infringement and cybersquat-ting because (1) the Visit Michigan City LaPorte designation is geographically descriptive and not subject to trademark protection, and (2) alternatively, if the designation is protectable, Serenity Springs acquired superior rights to the mark because it was the first to use it in commerce. As an initial matter, we note that the trial court concluded that the law of trademarks did not apply to the Bureau with the same force as a private entity due to the transparency requirements imposed upon governmental units. Specifically, the court concluded

34. That the construction of trademark law suggested- by [Serenity] does not take into account demands of transparency placed on governmental entities concerning how they do business, and to construe the law so as to require government to do business just as private concerns do business would violate those laws that demand openness in government.
35. The demand for openness in government required [the Bureau] to reveal matters that in private business would not have been revealed publicly, thereby jeopardizing [the Bureau’s] ability to protect its mark and its investment in money.
36. The construction of trademark law suggested by [Serenity] would require that [the Bureau] do business in a manner similar to a private entity, without regard to the requirements placed on governmental units by Indiana law, including the Open Door Law. Conducting business in such a manner makes it impossible for'a governmental entity to protect its investment of tax money in projects such as this one.

Appellant’s Appendix at 11.

Serenity argues that “adopting the trial court’s reasoning would, in effect, create an exception to a statutory rule of law that would apply in nearly every situation where a public entity and private entity were in competition.” Appellant’s Brief at 17. We agree. This court has long held that the exclusive right to use a mark is acquired through adoption and use of the mark in commerce. See Johnson v. Glassley, 118 Ind.App. 704, 83 N.E.2d 488 (1949) (“[t]he mere adoption of a particular name as a trade name, without actual use thereof in the market, confers no right thereto, even though such adoption is publicly declared”); Hartzler v. Goshen Churn Ladder Co., 55 Ind.App. 455, 104 N.E. 34 (1914). We are unaware of any authority suggesting that governmental units need not comply with the use requirement in order to acquire exclusive rights to use a particular mark. To the extent the trial court concluded that governmental entities competing with private entities are entitled to extra protection or relieved of the burden of establishing the elements of trademark infringement claims, such conclusion was error.

Before turning to the merits of Serenity’s argument concerning the validity of the Bureau’s claimed trademark, a brief review of the law of trademarks is in order. Trademark law is a subspecies of the law of unfair competition. 1 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 2.7 (“A basic aspect of the United States economy is that of the market place policed by laws that set a minimum level of fair competition. The law of trademarks is but a branch of this broader area called the law of ‘Unfair Competition or ‘Unfair Trade Practices.’ ” (footnote omitted)); 20 Ind. Law Encyc. Monopolies and Unfair Trade § 8 (noting that “trademark infringement is one type of unfair competition.” (footnote omitted)).

The goal of trademark protection is to allow a firm to affix an identifying mark to its product (or service) offering that will, because it is distinctive and no competitor may use a confusingly similar designation, enable the consumer to discover in the least possible amount of time and with the least possible amount of head-scratching whether a particular brand is that firm’s brand or a competitor’s brand.

Blau Plumbing, Inc. v. S.O.S. Fix-It, Inc., 781 F.2d 604 (7th Cir.1986); see also Carroll v. Lordy, 431 N.E.2d 118, 123 (Ind.Ct.App.1982) (“[t]he purpose of a trademark is to identify the source of the product, not the product itself’).

Trademark law is rooted in English common law, and was “largely codified” at the federal level in the Trademark Act of 1946, commonly known as the Lanham Act. Moseley v. v. Secret Catalogue, Inc., 537 U.S. 418, 428, 123 S.Ct. 1115, 155 L.Ed.2d 1 (2003). The Lanham Act defines a trademark, in relevant part, as “any word, name, symbol, or device, or any combination thereof ... used by a person ... to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.” 15 U.S.C.A. § 1127 (West). A “service mark” is the same as a trademark, except that it relates to services as opposed to goods or products. Id. The Lanham Act provides the holder of a mark with a cause of action against infringers. 15 U.S.C.A. § 1125(a) (West). The plaintiff must prove two elements in order prevail on a claim of trademark infringement under the Lanham Act: (1) that he or she has a protectable ownership interest in the mark, and (2) that the defendant’s use of the mark is likely to cause consumer confusion. Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225 (5th Cir.2010); see also Tana v. Dantanna’s, 611 F.3d 767 (11th Cir.2010).

In 1999, Congress passed the Anti-Cybersquatting Consumer Protection Act (ACPA) as an amendment to the Lan-ham Act for the purpose of prohibiting “cybersquatting.” DaimlerChrysler v. The Net Inc., 388 F.3d 201, 204 (6th Cir.2004).

‘[Clybersquatting’ occurs when a person other than the trademark holder registers the domain name of a well[-]known trademark and then attempts to profit from this by either ransoming the domain name back to the trademark holder or by using the domain name to divert business from the trademark holder to the domain name holder. A trademark owner asserting a claim under the ACPA must establish the following: (1) it has a valid trademark entitled to protection; (2) its mark is distinctive or famous; (3) the defendant’s domain name is identical or confusingly similar to, or in the case of famous marks, dilu-tive of, the owner’s mark; and (4) the defendant used, registered, or trafficked in the domain name (5) with a bad faith intent to profit.

Id. (citations omitted); see also Felsher v. Univ. of Evansville, 755 N.E.2d 589 (Ind. 2001) (discussing Lanham Act claims against cybersquatters and cyber copycats). Thus, in order to prevail on either a trademark infringement or cybersquatting claim under the Lanham Act, the plaintiff must first prove that he or she has a valid and protectable mark.

To receive protection under the Lanham Act as a trademark or service mark, a designation must be “distinctive.” 2 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 11.2 (“‘Distinctive’ has a special meaning in trademark law.... Without achieving distinctiveness ... a designation does not have the legal status of a ‘trademark’ or ‘service mark.’ No distinctiveness — no mark.” (footnote omitted)). As the U.S. Supreme Court has explained, marks are classified into the following categories of increasing distinctiveness: marks that are (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992) (citing Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4 (2nd Cir.1976)).

The latter three categories of marks — those that are suggestive, arbitrary, or fanciful — are considered inherently distinctive and entitled to trademark protection “because their intrinsic nature serves to identify a particular source of a product!.]” Id. at 768, 112 S.Ct. 2758. “Fanciful marks are, in essence, made-up words expressly coined for serving as a trademark. Some examples of fanciful marks are Clorox®, Kodak®, Polaroid®, and Exxon®.” Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 464 (4th Cir. 1996). Arbitrary marks consist of words or symbols that are in common usage, but are arbitrarily applied to the goods or services “because they do not suggest or describe any quality, ingredient, or characteristic of the goods they serve.... Examples include Tea Rose® flour, Camel® cigarettes, and Apple® computers.” Id. “Suggestive marks connote, without describing, some quality, ingredient, or characteristic of the product. Coppertone®, Orange Crush®, and Playboy® are good examples of suggestive marks because they conjure images of the associated products.” Id.

Descriptive marks and generic marks, on the other hand, are not inherently distinctive. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 112 S.Ct. 2753. Generic designations refer merely “to the genus of which the particular product is a species,” and are never protectable as trademarks because they do not indicate the particular source of an item. Id. at 768, 112 S.Ct. 2753; see also Sally Beauty Co. v. Beautyco, Inc., 304 F.3d 964, 976 (10th Cir.2002) (identifying the word “cola” as an example of a generic designation). Descriptive marks describe “ ‘the ingredients, qualities, or characteristics of an article of trade or a service[.]’ ” Platinum Home Mortg. Corp. v. Platinum Fin. Group, Inc., 149 F.3d 722, 727 (7th Cir. 1998). As a general matter, descriptive marks are not protectable as trademarks, “ ‘both because they are poor means of distinguishing one source of services from another and because they are often necessary to the description of all goods or services of a similar nature.’” Mil-Mar Shoe Co. v. Shonac Corp., 75 F.3d 1153 (7th Cir.1996) (quoting Liquid Controls Corp. v. Liquid Control Corp., 802 F.2d 934, 936 (7th Cir.1986)). Descriptive marks will become protectable, however, “where the holder can establish that the mark has acquired ‘secondary meaning’ in the collective consciousness of the relevant community.” Id. (quoting Gimix, Inc. v. JS & A Group, Inc., 699 F.2d 901, 907 (7th Cir.1983)). Secondary meaning exists when consumers regard the designation not as a description, but as the name of the product or service itself. Packman v. Chicago Tribune Co., 267 F.3d 628 (7th Cir.2001). Geographically descriptive designations generally fall within the descriptive category; thus, to be protected, they must have acquired secondary meaning. 2 McCarthy §§ 14:1 (“ ‘[i]f a geographic term is used merely to indicate the location or origin of the goods and services, it is purely descriptive’ ”). A mark’s proper placement on the spectrum of distinctiveness is a question of fact. Welding Servs., Inc. v. Forman, 509 F.3d 1351 (11th Cir.2007).

Under the Lanham Act, the holder of a mark may request the United States Patent and Trademark Office (USP-TO) to register the mark on the principal register. 15 U.S.C.A. § 1051, et seq. Marks that are “primarily descriptive” and “primarily geographically descriptive” of the goods or services with which they are associated are not eligible for registration on the principal register unless they have “become distinctive of the applicant’s goods in commerce.” 15 U.S.C.A. § 1052(e), (f) (West). Thus, registration of a descriptive mark on the principal register requires a showing of secondary meaning. Kohler Co. v. Moen Inc., 12 F.3d 632 (7th Cir.1993). Athough the Lanham Act protects both registered and unregistered marks, registration is desirable because it constitutes prima facie evidence of the mark’s validity. See 15 U.S.C.A. §§ 1057(b), 1115(a). Thus, federal registration of a mark “ ‘entitles the plaintiff to a presumption that its registered trademark is not merely descriptive or generic, or, if merely descriptive, is accorded secondary meaning.’ ” Thomas & Betts Corp. v. Panduit Corp., 138 F.3d 277, 301 (7th Cir.1998) (quoting Liquid Controls Corp. v. Liquid Control Corp., 802 F.2d at 936). The plaintiff bears the burden of establishing that an unregistered mark is entitled to protection. Platinum Home Mortg. Corp. v. Platinum Fin. Group, Inc., 149 F.3d 722.

The Indiana Trademark Act is similar, and in some respects identical, to the Lanham Act. Although Indiana’s body of trademark law is relatively undeveloped, the General Assembly has specified that the Indiana Trademark Act “is intended to provide a system of state trademark registration and protection that is consistent with the federal system of trademark registration and protection under the Trademark Act of 1946.” Ind.Code Ann. § 24-2-1-0.5 (West, Westlaw current through 2012 2nd Reg. Sess.). Moreover, “[a] judicial or an administrative interpretation of a provision of the federal Trademark Act may be considered as persuasive authority in construing a provision of the Indiana Trademark Act.” Id.

The Indiana Trademark Act’s definitions of “trademark” and “service mark” track the Lanham Act’s definitions of those terms nearly verbatim. See I.C. § 24-2-1-2(8), (9) (West, Westlaw current through 2012 2nd Reg. Sess.). Like the Lanham Act, the Indiana Trademark Act does not adversely affect common-law trademark rights. See I.C. § 24-2-1-15 (West, West-law current though 2012 2nd Reg. Sess.). Registration of a trademark or service mark with the office of the Secretary of State provides a registrant with a remedy for the infringement thereof under the Indiana Trademark Act. I.C. § 24-2-1-14(a) (West, Westlaw current though 2012 2nd Reg. Sess.); Felsher v. Univ. of Evansville, 755 N.E.2d 589. Like the Lan-ham Act, the Indiana Trademark Act prohibits the registration of marks that are “primarily geographically descriptive or deceptively geographically misdescriptive of the goods or services[.]” I.C. § 24-2-1-3 (West, Westlaw current through 2012 2nd Reg. Sess.). This provision does not, however, “prevent the registration of a mark that is used in Indiana by the applicant and has become distinctive of the applicant’s goods or services.” Id. In other words, a geographically descriptive mark may be registered under the Indiana Trademark Act if it has acquired secondary meaning. See Restatement (Third) of Unfair Competition § 14 (1995) (providing that a designation that is likely to be perceived by purchasers as merely descriptive of the geographical origin or location of the goods or services with which it is associated is not distinctive and protecta-ble unless it has acquired secondary meaning); cf. Keaton and Keaton v. Keaton, 842 N.E.2d 816, 821 (Ind.2006) (“Personal names, including surnames, are not ‘inherently distinctive’ and are only protectable as trademarks or trade names upon proof of secondary meaning.”).

Serenity argues that the designation at issue in this case, Visit Michigan City LaPorte, is primarily geographically descriptive and not subject to protection as a trademark. The trial court did not specify in its findings where the designation fell on the spectrum of trademark distinctiveness; rather, the court found that the Bureau’s “trademarks were distinctive at the time [Serenity] began using the mark and acquired the registration for the domain name VISITMICHIGANCI-TYLAPORTE.COM.” Appellant’s Appendix at 11. The court also concluded that “[t]he mark was properly certified for trademark.” Id.

We first note that the designation in question is a geographic composite mark, that is, “one composed of geographic matter coupled with additional matter (e.g. wording and/or a design element).” U.S. Patent and Trademark Office, Trademark Manual of Examining Procedure § 1210.02(c) (hereinafter TMEP), available at http://www.uspto.gov/trademarks/ resources/TMEP_archives.jsp. Such marks are classified based on their primary significance. Id.; see also I.C. § 24-2-1-3 (providing that marks that are “primarily geographically descriptive” are not regis-terable unless they have acquired distinctiveness (emphasis supplied)). The mark here consists of two geographic descriptors, “Michigan City” and “LaPorte,” preceded by the word “Visit,” which, in the context of the tourism industry, is at best descriptive. We have little difficulty accepting Serenity’s argument that the designation is primarily geographically descriptive of the goods and services with which it has been associated. See TMEP § 1210(c)(ii) (“[generally, the addition of a highly descriptive or generic term to the name of a geographic place does not alter its primarily geographic significance”). Indeed, the purpose of the Bureau’s branding efforts is to promote tourism in LaPorte County, and the only unifying characteristic shared by all of the accommodations and attractions promoted by the Bureau is their geographic location. It is difficult to conceive of a mark that falls more squarely within the category of geographically descriptive marks. Because we can conclude as a matter of law that prospective purchasers are likely to understand the designation as describing the geographic location of the goods and services the Bureau promotes, we conclude that the mark is geographically descriptive. Accordingly, the mark must have acquired secondary meaning in order to be protectable.

The Bureau seems to suggest that its registration of the mark with the Secretary of State is sufficient proof of distinctiveness and/or secondary meaning. We cannot agree that registration is a substitute for evidence of the mark’s validity. The Indiana Trademark Act provides that the Secretary of State shall cancel a trademark registration for a variety of reasons, including when “a court of competent jurisdiction finds that ... the registration was granted improperly[.]” I.C. § 24-2-1-10 (West, Westlaw current through 2012 2nd Reg. Sess.). Thus, the Act specifically contemplates that a court may review and overturn the Secretary of State’s determination that a particular mark is registera-ble. Moreover, I.C. § 24-2-1-5 provides that a certificate of registration issued by the Secretary of State “is admissible in evidence as competent and sufficient proof of the registration of the mark in an action or judicial proceeding in a court of Indiana.” (emphasis supplied). Thus, a certificate of registration is proof of registration only, which is a necessary prerequisite to a suit for infringement under the Indiana Trademark Act. I.C. § 24-2-1-14(a); Felsher v. Univ. of Evansville, 755 N.E.2d 589. The Indiana Trademark Act contains no provisions corresponding to 15 U.S.C.A. §§ 1057(b) and 1115(a), which provide that federal registration of a mark constitutes prima facie evidence of its validity.

Although the Indiana Trademark Act was intended to provide a system of state trademark protection consistent with the Lanham Act, where, as here, the language of the state legislation departs significantly from its federal counterpart, it is apparent that the General Assembly intended a different result. We therefore conclude that the Bureau’s registration of the mark with the Secretary of State under the Indiana Trademark Act is not sufficient to establish its validity under the Indiana Trademark Act. Accordingly, to support its infringement claims, the Bureau was required to present evidence to establish the validity of the mark, including the existence of secondary meaning. See Keaton and Keaton v. Keaton, 842 N.E.2d at 821 (“[i]n order to state a cognizable claim for trade name infringement, a plaintiff must make a threshold showing of a protectable trade name”).

Having concluded that the mark is geographically descriptive and not entitled to a presumption of validity, we turn our attention to whether the mark was nevertheless protectable, i.e., whether it had acquired secondary meaning. “The existence of secondary meaning is a question of fact, with the burden of proof on the person claiming rights in the name.” Id.; see also 2 McCarthy § 15:29. The rule applied by the majority of courts, and which we adopt here, is that “the senior user must prove the existence of secondary meaning in its mark just prior to the time and place that the junior user first began use of the mark.” 2 McCarthy §§ 15:4, 16:34.

The trial court found that subsequent to the Bureau’s registration of the mark with the Office of Secretary of State, “the trademark VISITMICHIGAN CITYLA-PORTE has come to identify [the Bureau’s] goods and services and to distinguish them from the goods and services of others.” Appellant’s Appendix at 10. Thus, to the extent the trial court concluded that the mark had acquired secondary meaning, it is apparent that the trial court considered the time period subsequent to Serenity’s first use. As described above, the proper question is whether the mark acquired secondary meaning prior to Serenity’s first use.

In the present case, the Bureau presented no evidence that the mark at issue acquired secondary meaning before Serenity began using it. It is undisputed that Serenity purchased the domain name visitmichigancitylaporte.com on September 9, 2009 and immediately began using it to direct internet traffic to its main website on that date. The Bureau also claimed September 9, 2009 as the date of its first use of the mark in its application for trademark registration, and trial court found that the Bureau first used the mark in commerce on that date. Assuming ar-guendo that the trial court’s finding in this regard is supported by the evidence, the Bureau’s and Serenity’s first uses of the mark were virtually simultaneous. Secondary meaning is acquired through actual use of a mark, and there is simply no evidence in the record supporting a conclusion that the mark became associated with the Bureau in the minds of consumers on September 9, 2009 in the hours prior to Serenity’s registration of the domain name. Indeed, Jack Arnett, the Bureau’s executive director, testified that the Bureau intended to begin using the mark following the September 9 announcement, and that securing the domain names would have been the first step in that effort. Because Serenity had already registered and begun using the visitmichigancityla-porte.com domain name by the time the Bureau sought to do the same, it would appear that Serenity began using the mark first, and it would therefore follow that the mark could not possibly have acquired a secondary association with the Bureau pri- or to Serenity’s first use.

In arguing that it is nevertheless entitled to trademark protection, the Bureau argues that it made an investment in undertaking the branding study, registering the mark, and attempting to defend the mark by issuing cease-and-desist letters. The Bureau argues that trademark protection exists to protect such investments, and that Serenity made no comparable investment in or attempt to protect the mark, and has even denied ownership thereof.

As an initial matter, we note that Serenity’s alleged denial of ownership of the mark would be entirely consistent with its argument that the mark is not protectable as a trademark. Additionally, we agree that trademarks exist, at least in part, to protect businesses’ investments in marks as a means to inform consumers about the source of the goods or services they offer. See Kohler Co. v. Moen, Inc., 12 F.3d 632; see also 1 McCarthy, § 2:2. This goal must be balanced, however, against competing concerns about depriving competitors of the ability to effectively market similar goods and services by removing descriptive terms from the public domain. See Blau Plumbing v. S.O.S. Fix-It, Inc., 781 F.2d at 609 (“it is no purpose of trademark protection to allow a firm to prevent its competitors from informing consumers about the attributes of the competitors’ brands”). The distinctiveness requirement is designed to strike a balance between these concerns by granting protection only when a mark is truly used to identify the source of goods or services, rather than to describe the goods or services themselves (or their geographical location). The Bureau’s initial investment in and subsequent efforts to defend the mark are simply not relevant to whether the mark had acquired distinctiveness at the time of Serenity’s first use.

For all of these reasons, we conclude that the trial court’s findings that the designation Visit Michigan City LaPorte was distinctive and properly registered as a trademark were clearly erroneous. Because the Bureau failed to establish that the designation was protectable as a trademark against Serenity, its claims of trademark infringement and cybersquatting must necessarily fail. Accordingly, we reverse and remand with instructions to the trial court to vacate its judgment and enter judgment in Serenity’s favor on these claims.

None of this is to say, however, that Serenity’s actions are necessarily beyond the reach of the law. Although the trial court ruled only on the Bureau’s trademark infringement and cybersquatting claims, the Bureau asserted additional claims, including a claim of common-law unfair competition, which does not necessarily turn on the existence of a valid and protectable trademark. See also Keaton and Keaton v. Keaton, 842 N.E.2d at 820 (noting that the law of unfair competition is very broad and not limited to passing off one’s goods and services as those of another); Felsher v. Univ. of Evansville, 755 N.E.2d at 598 (noting that unfair competition does not refer to a tort with a specific number of elements, but “‘instead describes a general category into which a number of new torts may be placed when recognized by the courts. The category is open-ended, and nameless forms of unfair competition may be recognized at any time for the protection of commercial values’ ” (quoting W. Page Keeton, Prosser and Keeton on the Law of Torts, 105 (5th ed. 1984))). Because these claims were not addressed by the trial court, we do not pass on their merits. Instead, we remand with instructions to the trial court to consider the Bureau’s remaining claims. Because this matter has already proceeded to a trial on the merits, however, the trial court may not receive new evidence and must limit its consideration to the evidence and claims already presented by the Bureau.

2.

On cross-appeal, the Bureau requests an award of appellate attorney fees. Under IndApp. Rule 66(E), “[t]he Court may assess damages if an appeal ... is frivolous or in bad faith. Damages shall be in the Court’s discretion and may include attorneys’ fees.” Our discretion to award attorney fees under App. R. 66(E) is limited to “instances when an appeal is permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay.” Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind.Ct.App.2003). Because Serenity has prevailed on the merits of this appeal, an award of appellate attorney fees to the Bureau would be inappropriate.

Judgment reversed and remanded with instructions.

NAJAM, J., and BRADFORD, J., concur.

      . Throughout the record, this designation is referred to with slight variations, including “Visit Michigan City LaPorte,” "VISITMI-CHIGAN CITYLAPORTE, ” and “visitmichi-gancitylaporte." For purposes of clarity, we will refer to the designation as "Visit Michigan City LaPorte,” except when we refer specifically to a domain name.

      . The parties have not provided us with a copy of the Bureau's complaint. We are able to discern the basis of the complaint, however, from the copy of Serenity’s answer, which was included in the Appellee's Appendix.

      . In its order, the trial court concluded that Serenity had committed “cybersquatting that approaches cyberpiracy, in violation of [Indiana] common law.” Appellant’s Appendix at 13. In support of this conclusion, however, the court cited the ACPA and Felsher v. Univ. of Evansville, which discussed cy-bersquatting as a potential violation of the Lanham Act. 755 N.E.2d 589 (Ind.2001). In other words, the authorities relied upon by the trial court support a cause of action for cybersquatting under federal statutory law only. The parties have not directed our attention to, and we are unaware of, any authority suggesting the existence of an Indiana statutory or common-law cause of action for cybers-quatting per se. Of course, this does not preclude the possibility that acts amounting to cybersquatting under the Lanham Act and ACPA might also be actionable under the Indiana Trademark Act or common-law unfair competition principles.

      . Proof of continuous use of the mark in Indiana for the five years preceding the date the claim of distinctiveness is made may constitute sufficient proof that a geographically descriptive mark has attained secondary meaning. I.C. § 24-2-1-3. The mark at issue in this case clearly has not satisfied this threshold. This does not, however, preclude its registration if there is evidence that the mark has actually achieved secondary meaning within a shorter timeframe.

      . Serenity also argues that to the extent the designation is protectable as a trademark, it has superior rights to the mark because it was the first to use the mark in commerce. See Johnny Blastoff Inc. v. Los Angeles Rams Football Co., 188 F.3d 427 (7th Cir.1999) (“The party who first appropriates the mark through use ... acquires superior rights to it.”). Because we resolve this matter based on the threshold issue of whether the mark is subject to trademark protection in the first instance, we need not address this argument.

      . The Bureau suggests that its disclaimer of the terms "Michigan City” and "LaPorte” removes the composite designation Visit Michigan City LaPorte from the category of geographically descriptive marks. We disagree. The fact that the Bureau has disclaimed any exclusive right to use these geographic descriptors outside the composite mark at issue in this appeal does nothing to alter our conclusion that the composite mark is itself primarily geographically descriptive.

      . To the extent the Bureau asserts a federal trademark claim, we note that there is no evidence that the mark was registered on the USPTO's principal register. Accordingly, the Bureau is not entitled to a presumption of validity under the Lanham Act.

      . The Bureau seems to suggest that in order to present the argument that the mark is not subject to protection as a trademark, Serenity was required to file as a counterclaim an action to cancel the mark's registration pursuant to I.C. § 24-2-1-14.5 (West, Westlaw current through 2012 2nd Reg. Sess.). Although I.C. § 24-2-1-14.5 provides for a cause of action to cancel a mark registered under the Indiana Trademark Act, we can see no basis for the conclusion that Serenity was required to do so in this case. Serenity has not sought cancellation of the Bureau’s trademark. Rather, it has sought to defend against the Bureau’s claims of infringement by arguing that the Bureau has not established an essential element of its claims, i.e., the existence of a protectable trademark.

       Serenity argues that the Bureau did not actually use the mark in commerce until well after September 9, 2009. According to Serenity, the Bureau merely announced an intention to use the mark on that date. We agree that merely announcing an intention to use a trademark is insufficient to confer trademark rights. 2 McCarthy § 16:11. Rather, trademark priority is granted to the party who first uses the mark in commerce. Id. Nevertheless, we need not sort out this particular dispute because we reach the same conclusion even if we accept the trial court's finding that the Bureau first used the mark on September 9, 2009.

      . These facts may be relevant, however, to the Bureau’s remaining claim of common-law unfair competition, which is discussed further below. We also note that the trial court found that Serenity had made a number of misrepresentations to the trial court concerning its ownership of the domain name at a pretrial. Serenity’s initial denial that it owned the domain name might also be relevant to the Bureau's remaining claims.

      . Of course, this does not preclude the possibility that the mark could, in the future, become distinctive by acquiring secondary meaning. In that event, the Bureau would be entitled to protection against unauthorized use by others, provided their use began subsequent to the mark’s acquisition of secondary meaning.

      . In support of its request for appellate attorney fees, the Bureau cites the former Ind. Appellate Rule 15(G), which is no longer a part of the appellate rules. Requests for appellate attorney fees are now governed by App. R. 66(E).


source: Caselaw Access Project

author: BAKER, Judge.

license: Public Domain

text:
    Casey WALKER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 76A04-1204-CR-207.
    Court of Appeals of Indiana.
    April 18, 2013.

      Hugh N. Taylor, Auburn, IN, for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, for Ap-pellee.
   OPINION

BAKER, Judge.

In this case, appellant-defendant Casey Walker was convicted of class A felony Manufacturing Methamphetamine and sentenced to thirty years of incarceration. Evidence presented at Walker’s trial included evidence obtained from a warrant-less search of a residence that police officers conducted after obtaining the consent of Walker’s wife, an occupant of the residence, and Walker’s mother, the owner and an occupant of the residence.

On appeal, Walker argues that the State failed to establish an exception to the warrant requirement because his mother is incapable of giving consent in that she suffers from Alzheimer’s disease. Walker requests that the evidence seized from the search be suppressed, and consequently, his conviction reversed.

We conclude that Walker has failed to establish that his mother was incompetent to give consent to search the residence. Moreover, there was undisputed testimony at trial that Walker’s wife gave verbal consent to search the residence, and Walker points to no evidence that he explicitly told the police that they could not enter his residence. Accordingly, we find that the police had consent to search the residence, and the trial court did not err by admitting the evidence. Thus, we affirm the judgment of the trial court.

FACTS

In 2011, Walker and his wife, Jennifer, lived in Steuben County with Walker’s eighty-seven-year-old mother, Mary Walker. Mary owned the residence and, according to Walker’s testimony, had been diagnosed with Alzheimer’s disease. Walker acted as his mother’s power of attorney, and his sister, Susan Baumgart-ner, served as alternate power of attorney.

On November 10, 2011, Jennifer saw Walker putting gray strips into a plastic bottle and noticed a “chemical odor.” Tr. p. 121. Because Jennifer had “a hunch” that Walker was making methamphetamine, she drove herself and Mary to her sister’s house, which was “[j]ust up the road.” Id. at 121-23. Once they arrived, Jennifer called the police and reported that she thought Walker was manufacturing methamphetamine.

Detective Sergeant Michael Meeks of the Steuben County Sheriffs Department received a call shortly after noon on November 10th about a complaint of possible “meth making activity at [the Walker] residence.” Tr. p. 131. Detective Meeks and two patrol deputies met Jennifer at a parking lot at Fairview Missionary Church, which is adjacent to the Walker residence. The information that Detective Meeks received from Jennifer “indicated that the lab was active and so our, my main concern was the hazardous materials and the possible fire hazard that’s commonly associated with the one pot methamphetamine.” Id. at 132.

Detective Meeks obtained verbal consent from Jennifer and Mary to enter the house and try to make contact with Walker. Additionally, Detective Meeks witnessed Mary and Baumgartner sign a consent form granting the police officers permission to enter the house.

After obtaining these consents, Detective Meeks met with Sergeant Nott and Deputy Reardon, and they entered the residence through an open overhead garage door. After entering the garage, they “knocked on the entry door ... along the east wall of the garage. The main door was open but the storm door was closed.” Tr. p. 138. Detective Meeks stated that they knocked several times and that Sergeant Nott called out Walker’s name. After receiving no response, the three officers stepped inside based on Jennifer’s and Mary’s consent.

At that point, Walker emerged from a bathroom that was adjacent to the door where the officers had just entered. Walker was immediately “placed into protective custody by being handcuffed behind the back,” while the officers conducted a protective sweep of the residence. Tr. p. 18£M0. Detective Meeks briefly explained to Walker why the officers were there and what they were doing. Walker denied making methamphetamine.

During the protective sweep, Detective Meeks noticed a chemical odor in the southwest bedroom that he associated with the manufacture of methamphetamine. Detective Meeks also noticed an open window with an exhaust fan in it and knew from his experience and training that this was a common practice during the manufacture of methamphetamine to rid a room of the chemical odor. Additionally, Detective Meeks observed coffee filters inside a gallon-size plastic storage bag, which are commonly used to make methamphetamine using the “one pot” method. Appellant’s App. p. 132.

Based on this information and Detective Meeks’s training and experience, he believed that he had probable cause that methamphetamine was being manufactured in the residence. Detective Meeks sought and obtained a search warrant, and during the execution of the search warrant, the police found:

• Two plastic bottles containing a white granular substance, one of which also contained a clear liquid
• Two bottles containing drain opener
• Blue plastic funnel with white residue
• Coffee filters
• Plastic zip lock bags
• One pair of pliers
• One pair of side cutters
• Two canisters of Morton Salt — one empty and one partially full
• One opened instant ice compress
• Empty PSE blister packs
• One empty 32 ounce bottle of camp fuel.

Appellant’s App. p. 120.

Jerry A. Hetrick, a forensic scientist for the Indiana State Police Laboratory, conducted testing on the various items taken from Walker’s home. The result of He-trick’s testing indicated that the plastic bottle with the clear liquid contained methamphetamine and either ephedrine or pseudoephedrine.

On November 14, 2011, the State charged Walker with class A felony manufacturing methamphetamine. Walker’s trial was scheduled to begin on March 15, 2012, and on that day, Walker filed various motions, including two motions to suppress evidence — one pursuant to the search warrant and the other pursuant to Jennifer’s and Mary’s consent.

Walker challenged the validity of the search on numerous grounds, including that the search warrant violated the Fourth Amendment to the United States Constitution because it was “overly broad.” Appellant’s App. p. 74. Additionally, Walker claimed that the search warrant affidavit failed to establish probable cause because although it alleged that Jennifer had given statements “against her penal interests,” there was no indication that she was involved in any criminal activity. Id. Walker also alleged that the police failed to properly knock and announce then-presence and that “[ujnder the totality of the circumstances, the search of [Walker’s] home, pursuant to the search warrant was unreasonable, and thus violated Article I, Section 11 of the Indiana Constitution.” Id. at 74-75.

In Walker’s motion to suppress the evidence seized as the result of the search pursuant to Jennifer’s consent, Walker claimed that the search violated the Fourth Amendment because his “wife’s consent to search was not validly given.” Appellant’s App. p. 79. In the alternative, Walker alleged that the “police exceeded the scope of [his] wife’s consent, thereby violating the Fourth Amendment.” Id. Finally, Walker argued that “[c]onsidering the totality of the circumstances, the police officer’s search of [his] home was unreasonable and, thus, violated Article I, Section 11 of the Indiana Constitution.” Id. at 80.

Walker’s jury trial commenced on March 15, 2012. After the jury had been sworn but before the presentation of evidence, the trial court heard evidence regarding Walker’s various motions, including his motion to suppress the evidence “that was obtained during the first warrant less [sic] entry into the premises.” Tr. p. 99. Walker claimed that the police officers had failed to obtain valid consent. Id.

The State offered State’s Exhibit 24, which was the consent form to search that Mary and Baumgartner had signed. Id. at 100; State’s Ex. 24. The defense stipulated that the consent form was signed in front of Detective Meeks, and State’s Exhibit 24 was admitted. Tr. p. 100.

Walker was then permitted to testify that he believed that the signatures were invalid because his mother suffered from Alzheimer’s disease and was incompetent to consent. Tr. p. 101. Further, Walker testified that Baumgartner was legally incompetent to consent because Walker was the primary power of attorney and that she did not have power of attorney unless Walker was unable to perform his functions. Id. at 102.

While Walker was under cross-examination and redirect examination, there was confusion regarding whether Walker had a power of attorney or a guardianship over Mary. Walker’s counsel offered to check the court records, and the trial court granted a “quick continuance.” Tr. p. 104.

The trial court then explained that “[p]ower of attorney means that you are authorized to make decisions for someone. It does not divest that someone of the authority to make decisions for themselves.” Id. By contrast, a guardianship divests a person of their own decision-making authority and requires a determination, as a matter of law, that the person is incompetent. Id. at 105. After determining that Walker possessed a power of attorney and not a guardianship, his motions to suppress were denied.

The next day, the jury returned a guilty verdict to class A felony manufacturing methamphetamine. On April 9, 2012, the trial court held a sentencing hearing during which it sentenced Walker to thirty years of incarceration. Walker now appeals.

DISCUSSION AND DECISION

Walker argues that the trial court erred by failing to grant his motion to suppress the evidence. Walker contends that “the finding by the trial court that the search was valid should be reversed and all evidence obtained pursuant to the illegal search suppressed. This case should be reversed and remanded with instructions that the State should be barred from further prosecution.” Appellant’s Br. p. 12.

I. Procedural Posture and Standard of Review

At the outset, it is noteworthy that Walker frames the issue as whether the trial court erred by denying his motion to suppress. This Court has determined that unless a defendant seeks an interlocutory appeal, “the issue is more appropriately framed as whether the trial court abused its discretion by admitting evidence at trial.” Washington v. State, 784 N.E.2d 584, 587 (Ind.Ct.App.2003).

This is not merely a distinction without a difference insofar as the standard of review is concerned. Regarding a denial of a motion to suppress, this Court does not reweigh the evidence and considers conflicting evidence most favorable to the trial court’s ruling. Kelley v. State, 825 N.E.2d 420, 424 (Ind.Ct.App.2005). However, this Court also considers the uncontested evidence favorable to the defendant. Id.

By contrast, when reviewing the admissibility of evidence, because trial courts are given such broad discretion, we will reverse only when a trial court abused its discretion. Id. An abuse of discretion occurs when a decision is clearly against the logic and effect of the facts and circumstances before the court. Id. Accordingly, unless the defendant takes an interlocutory appeal, thereby permitting us to review a denial of a motion to suppress, we may not consider the uncontested evidence favorable to the defendant. Id.

Here, because Walker did not seek an interlocutory appeal of the trial court’s denial of his motion to suppress, the issue is whether the trial court erred by admitting the evidence resulting from the search of his residence. Consequently, we will review the admission of this evidence only for an abuse of discretion and will not consider the uncontested evidence favorable to Walker.

II. Fourth Amendment— Search by Consent

Proceeding to the merits, Walker argues that Mary was incompetent to consent to the search of the residence and that Baum-gartner was not authorized to consent because she was Mary’s alternate power of attorney. The State counters that the police officers obtained valid consent from both Mary and Jennifer before entering the Walker residence.

Under the Fourth Amendment, the warrantless entry of a person’s house is per se unreasonable. Georgia v. Randolph, 547 U.S. 103, 109, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006). However, one “ ‘jealously and carefully drawn’ ” exception is when voluntary consent is given by an individual possessing authority. Id. (quoting Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958)).

A. Mary’s Competency to Consent

As stated above, the Detective Meeks obtained Mary’s written and verbal consent to search the residence which she owned and in which she resided. Tr. p. 100, 138; State’s Ex. 24. However, Walker argues that Mary was incompetent because she had been diagnosed with Alzheimer’s disease and placed on medication approximately two months before the search.

Initially, we observe that it is a general principle of law that everyone is presumed to be competent. See Bellmore v. State, 602 N.E.2d 111, 117 (Ind.1992) (stating that “[a] witness is presumed to be competent^] ... [i]f evidence places the competency of a witness in doubt, the trial court should order a psychiatric evaluation”); Hays v. Harmon, 809 N.E.2d 460, 464 (Ind.Ct.App.2004) (stating that “[e]very person is presumed to be of sound mind to execute a will until the contrary is shown”).

Here, at the time Mary consented to the search, there was no legal guardianship over her. Tr. p. 110. Thus, Mary was not divested of the ability to make decisions for herself. See Ind.Code § 29-3-1-6 (defining “Guardian” as “a fiduciary” appointed by “a court to be a guardian or conservator responsible ... for ... an incapacitated person”); Ind.Code § 29-3-1-7.5 (defining “Incapacitated person” as someone who “is unable” to manage the individual’s property or provide self-care or both because of some incapacity).

Here, no doctor or any other expert specializing in neurological disorders testified regarding Mary’s mental capacity. Indeed, it appears from the record that the only evidence regarding the extent of Mary’s Alzheimer’s disease is Walker’s testimony that she had been diagnosed with the disease and placed on medication two months prior to giving consent. Tr. p. 103. Consequently, there is uncertainty regarding the extent to which Mary’s condition had progressed. Under these facts and circumstances, we cannot conclude that Walker rebutted the presumption that Mary was competent to consent to the search of the residence that she owned and where she resided. Thus, this argument fails.

B. Jennifer’s Ability to Consent

The State argues that not only did Mary have authority to consent to the search, but that Jennifer also had authority to consent to the search. A third party who has common authority over the property may give consent. Hill v. State, 825 N.E.2d 432, 436 (Ind.Ct.App.2005).

Common authority rests on the mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the cohabitants has the right to permit the inspection in his or her own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

Id.

Here, at Walker’s trial, Jennifer testified that Walker is her husband. Tr. p. 119. Jennifer further stated that on November 10, 2011, she was living with Walker and his mother, Mary. Id. at 119— 120. Jennifer explained that on November 10th, she saw Walker “put something in, into a plastic bottle,” and smelled a chemical odor. Id. at 120-21. Jennifer then packed up a few personal items and decided to leave the house with Mary. Based on these facts, it was reasonable for the police officers to conclude that Jennifer and Walker were husband and wife, living in the same house. Therefore, it was reasonable for Detective Meeks to believe that Jennifer had the authority to consent to the search.

Moreover, we find the instant ease distinguishable from Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006). In Randolph, after a domestic dispute, the police obtained the wife’s consent to search over the husband’s explicit objection. Id. at 107, 126 S.Ct. 1515. The United States Supreme Court determined that a co-tenant “has no recognized authority in law or social practice to prevail over a present and objecting co-tenant.” Id. at 114, 126 S.Ct. 1515. Indeed, the disputed consent, without more, “gives a police officer no better claim to reasonableness in entering than the officer would have in the absence of any consent at all.” Id.

Unlike in Randolph, there is no indication that Walker explicitly refused consent. Thus, the trial court properly admitted the evidence discovered during the search, and we affirm the decision of the trial court.

The judgment of the trial court is affirmed.

NAJAM, J., and RILEY, J., concur.

      . Ind.Code § 35-48-4-1.1.

      . We heard oral argument on April 1, 2013, at the Indiana University Maurer School of Law. We would like to thank counsel for their presentations and the students who attended the argument for their presence and respectful manner. Additionally, we want to express our appreciation to the administration, faculty, technology support, and staff of the Maurer School of Law for their warm hospitality and assistance.

      . The documents granting power of attorney to Walker and alternate power of attorney to Baumgartner were not included in the record on appeal. Instead, we have only the colloquy between the trial court and the defense counsel that it would be "[e]asy enough for me to check the court records [to] see if there is a guardianship” or a power of attorney. Tr. p. 104.

      .Detective Meeks explained to the jury that the "one pot” method of making methamphetamine involves filling a sports or two-liter bottle with ammonium sulfate or ammonium nitrate, adding any organic solvent and either pseudoephedrine or ephedrine, and then adding lithium strips extracted from batteries, which begins the chemical reaction. Tr. p. 135-36.

      . Walker briefly cites to Article I, Section 11 of the Indiana Constitution to argue that the search of his premises was unreasonable. However, Walker fails to develop an independent argument and analysis regarding these facts: therefore, he has waived this claim. See Ackerman v. State, 774 N.E.2d 970, 978 n. 10 (Ind.Ct.App.2002) (stating that the failure to cite to any authority or to make a separate argument specific to the state constitutional provision waives the issue on review).


author: DARDEN, Senior Judge.

text:
    Douglas A. GUILMETTE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 71A04-1205-CR-250.
    Court of Appeals of Indiana.
    April 22, 2013.
    Rehearing Denied June 27, 2013.

      Philip R. Skodinski, South Bend, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

DARDEN, Senior Judge.

STATEMENT OF THE CASE

Douglas Guilmette appeals his conviction for murder. We affirm.

ISSUES

Guilmette raises three issues, which we reorder and restate as:

I. Whether the trial court erred by admitting evidence.
II. Whether the trial court abused its discretion by instructing the jury on accomplice liability.
III. Whether the evidence is sufficient to sustain the conviction.

FACTS AND PROCEDURAL HISTORY

Guilmette and the victim, Greg Pie-chocki, worked for Kevin Rieder’s moving company and sometimes stayed at Rieder’s home on South Walnut Street in South Bend. Rieder kept several baseball bats in his home for protection.

Guilmette did not get along with Pie-chocki, who was like a “little brother” to Rieder. Tr. p. 227. Guilmette thought that Piechocki was “an a* *hole” and that Rieder let Piechocki “get away with all kinds of sh*t.” Id. at 660.

On the evening of September 13, 2010, Rieder and Piechocki arrived at Rieder’s home and found Guilmette on the front porch. They all went inside and watched Monday Night Football. While they were all in the living room, Rieder paid Pie-chocki approximately $300 in cash for a couple of jobs. Around 12:30 a.m., Rieder took a sleeping pill, turned the fan in his bedroom on high, closed his door, and went to bed. Piechocki later went to bed in the spare bedroom.

At 5:25 a.m., surveillance videos showed Guilmette driving Piechocki’s car into a Walmart parking lot. Guilmette went into the store, picked out a cell phone and some movies, concealed them in his clothing, and paid for a box of doughnuts with a large wad of cash. Just after 6 a.m., Guilmette went into the Meijer store just across the street from Walmart, picked out two liquor bottles, concealed them in his clothing, and paid for a box of doughnuts.

Later that morning, Rieder’s neighbor Kyle Bowerman saw Guilmette driving Piechocki’s car at about 7 a.m. Bowerman had backed his car out of his garage into an alley to take his wife to work, but stopped in the middle of the alley when the car started to whine. -As he started to put some power steering fluid in, he heard a car approaching. From the sound of the motor, he could tell “it was coming pretty fast.” Id. at 192. Bowerman looked up and saw Guilmette driving Piechocki’s car. He put his hand up to say he was almost finished, but Guilmette “all of the sudden” backed out quickly, drove around the block, and parked on South Walnut across the street from Rieder’s home. Id.

When Rieder woke up around 8 a.m., he noticed that a door to the home was open with the screen door propped open and that a blue tarp that usually covered a dirt pile in the backyard was missing. Rieder spoke with Guilmette on the phone about what he had observed, but Guilmette denied knowing anything about the door or the tarp.

Rieder tried calling Piechocki in the afternoon because they were scheduled to play in a pool league that night, but Pie-chocki did not answer. Later in the day, Rieder noticed that Piechocki’s car was outside on the street and figured he might be in the home. He opened the door to the spare bedroom, turned on the light, and saw Piechocki’s body partly covered by a pink comforter. There was blood on the walls and blood pooled near Piechocki’s head. Rieder called 911. The blood spatter evidence indicated that the spare bedroom door was open at the time of the murder. The blood spatter evidence also indicated that Piechocki was leaning up with his head level with the top of the headboard for some of the strikes and that he was lying down for other strikes.

Later that evening, on September 14, 2010, Detective David Wells picked up Guilmette at a Motel 6 and interviewed him at the St. Joseph County Metro Homicide Unit. Guilmette said Piechocki was a “fricking a* *hole” to him. Id. at 661. However, he denied any involvement in the murder and claimed he left Rieder’s home in the morning on a bicycle with just six dollars to shoplift at Walmart and Meijer.

Detective Wells interviewed Guilmette at the Metro Homicide Unit a second time on September 16, 2010. Guilmette again stated he had ridden a bicycle to Walmart and Meijer on the morning of the crime, but when he was told surveillance videos showed him driving Piechocki’s car, he admitted lying about the bicycle and said he had stolen Piechocki’s keys from the bedroom after Piechocki had fallen asleep. He repeatedly denied taking Piechocki’s money. However, when he was told surveillance videos showed him with a wad of cash, he admitted stealing Piechocki’s money as well.

On September 16, 2010, at the conclusion of the second interview, Guilmette was arrested for the Walmart and Meijer thefts. Officer Thomas Cameron collected Guilmette’s clothing and shoes, took them to an in-house lab area, and saw what he believed to be spots of blood on the shoes. Guilmette was given other clothes to wear and then transported to the jail, where he was given jail clothing.

Without a search warrant, Guilmette’s shoes and several other items were transported to the Indiana State Police Lab on September 30, 2010, for blood and DNA analysis. A red stain on one of the shoelaces tested presumptively for blood. Because the stain was so small and a sample needed to be retained for DNA testing, no confirmatory test for blood was done. DNA testing of the stain gave a mixture from which Piechocki and Guilmette could not be excluded.

Later, multiple people came forward with information and testified at trial that Guilmette had confessed to the murder. Guilmette’s cousin Cynthia Gyuriak contacted the police on October 14, 2010, and informed them that Guilmette told her he “couldn’t stand [Piechocki]” and that he “wanted to f*ck [Piechocki] up.” Id. at 850. In another conversation after the murder, Guilmette further told Gyuriak that he “beat [Piechocki’s] head in with a Peking baseball bat,” and that he “Louis-villed him with a bat.” Id. at 852. Guil-mette also told her that he wrapped the bat in a tarp from Rieder’s home and put it somewhere in the woods in Rum Village and that he stole movies and got doughnuts from Walmart and Meijer to be caught on camera for an alibi.

Kenneth Fox, Shawn Fox, and Edward Russell were each housed in the St. Joseph County Jail with Guilmette at different times pending trial. Guilmette told Kenneth that: (1) he had been living at a home with Rieder and Piechocki, (2) there were lots of bats in the home including one behind the couch, (3) Piechocki had been beaten with a bat while he was sleeping, (4) Piechocki was “missing like half his face,” and there was blood everywhere in the room, id. at 390, (5) he might have gotten DNA on his shoes when he walked through the bedroom, and (6) he washed his clothes two or three times before he gave them to the police to eliminate any DNA evidence. During one of their conversations, Kenneth said that if he had committed a murder, the body would never be found. Guilmette responded that “his problem is, is his body was found.” Id. at 391. Guilmette also said that if he was found guilty, he would get a tattoo of a “little batman” holding a baseball bat in its feet. Id. at 385, 392.

Guilmette told Shawn that he and Pie-chocki got into a big fight one night. In the late hours of the night, Guilmette grabbed a bat from Rieder’s room, went into Piechocki’s room, stood over him, “snapped out,” id. at 401, and started hitting him with the bat. He told Shawn he lost track of how many blows he dealt after twenty. After the murder, he showered, changed clothes, and drove to Wal-mart and Meijer to establish an alibi through video surveillance. He then went to a friend’s house, and the friend put him up in a hotel. Guilmette further told Shawn that he had told his cousin what had happened and was worried she would turn him in, but that he would have his Aunt Judy say his cousin was lying, did drugs, and could not be believed.

Guilmette told Russell that he was at Rieder’s home when he “beat [Piechocki] upside the head with a baseball bat.” Id. at 458. Guilmette said “blood went everywhere” and explained that he “just kept beating him and beating him” to prevent Piechocki from getting up. Id. Guilmette took Piechocki’s keys and $280 from his pocket, wrapped the bat and his clothes in a tarp, drove somewhere and dumped everything in a garbage bin, went to a Motel 6, and “got a[n] 8 ball of crack cocaine and a hooker.” Id. at 466.

In November 2010, Guilmette learned from a jail inmate that Rieder was telling everyone that Guilmette had killed Pie-chocki. Hoping the police would focus more on Rieder, Guilmette asked for a third police interview in which he stated that Rieder was not asleep but awake the whole time and knew Guilmette took Pie-chocki’s car. He explained that he initially lied about Rieder being asleep because “I didn’t want [Rieder] to get in trouble, man. That’s why I lied to ... begin with, but see now it looks like [Rieder]’s trying to f*ck me.” Id. at 706-07.

On December 21, 2010, the State charged Guilmette with murder, two counts of theft, and being an habitual offender. Guilmette filed a motion to suppress the DNA evidence found on his shoe, which the trial court denied after a hearing.

At a jury trial, Rieder, Bowerman, Wells, Cameron, Gyuriak, Kenneth Fox, Shawn Fox, Russell, and others testified for the State. Forensic pathologist Joseph Prahlow also testified, determining that Piechocki died of multiple blunt force trauma and that his injuries could be consistent with being struck with a baseball bat. Prahlow conservatively estimated Pie-chocki suffered ten separate blows to the head and face, with virtually every bone in his face fractured multiple times, and fifteen separate blows to the rest of the body. Defensive wounds, blood in his lungs, and blood and a tooth in his stomach indicated that Piechocki did not die from the first strike. Guilmette and others testified for the defense.

Although the State proceeded on the theory that Guilmette killed Piechocki, it tendered an instruction on accomplice liability, believing the jury might find that Rieder killed Piechocki and Guilmette aided Rieder. The trial court gave the instruction over objection.

The jury found Guilmette guilty of murder and the thefts, and the trial court subsequently adjudicated him an habitual offender. The court sentenced him to sixty years for the murder, which was enhanced by thirty years due to the habitual offender finding, and two years for each theft, to be served concurrently to each other but consecutive to the murder, for an aggregate term of ninety-two years. Guil-mette now appeals.

DISCUSSION AND DECISION

I. ADMISSION OF EVIDENCE

Guilmette contends that the trial court admitted the DNA evidence recovered from his shoe in violation of Article 1, Section 11 of the Indiana Constitution. Specifically, he argues that the shoe, taken incident to his theft arrest, was unconstitutionally searched for evidence of the murder.

Article 1, Section 11 of the Indiana Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

Although the language of this provision tracks the Fourth Amendment almost verbatim, Indiana has explicitly rejected the expectation of privacy as a test of the reasonableness of a search or seizure. Litchfield v. State, 824 N.E.2d 356, 359 (Ind.2005). The legality of a governmental search under the Indiana Constitution turns on an evaluation of the reasonableness of the police conduct under the totality of the circumstances. Id. Although there may be other relevant considerations under the circumstances, the reasonableness of a search or seizure under the Indiana Constitution generally turns on a balance of: (1) the degree of concern, suspicion, or knowledge that a violation has occurred, (2) the degree of intrusion that the method of the search or seizure imposes on the citizen’s ordinary activities, and (3) the extent of law enforcement needs. Id. at 361.

At the time the police took Guil-mette’s shoe, they knew he was with Pie-chocki at the home the night of the murder, there was some level of animosity between them, and Guilmette lied about taking Piechocki’s keys, money, and car until confronted with surveillance videos. The police thus had a high degree of suspicion that Guilmette might have been involved in the murder. In addition, any intrusion on Guilmette’s ordinary activities when his shoes were taken incident to his theft arrest was slight, given that his shoes would have been taken shortly thereafter when he was booked into jail.

Nonetheless, the absence of any exigent law enforcement need tips the scale in Guilmette’s favor. We take no issue with the police taking his shoe at the time of his arrest. Nor was it any violation for the police to look at his shoe and discover in plain view spots that appeared to be blood. At that point, it was altogether reasonable that the police, in the course of the murder investigation, would want to subject the shoe to blood and DNA analysis. However, as Guilmette was initially arrested for the unrelated crimes of theft and not murder, the police should have obtained a warrant to do so. After all, Guilmette was already in custody, the police had the shoe in their possession, and there was thus little chance of contamination or destruction of evidence.

It is one thing to receive an inmate’s clothing for inventory and safekeeping during his incarceration while awaiting trial for a crime. But using that opportunity to investigate and test the clothing regarding an unrelated and uncharged crime triggers the constitutional protection of needing to obtain a warrant to do so. We conclude that the laboratory testing of Guilmette’s shoe, taken incident to his theft arrest, for evidence of the murder was an unconstitutional search under the Indiana Constitution. It was therefore error for the trial court to admit the DNA evidence.

However, when a trial court has erred in the admission of evidence, we will not reverse the conviction if the error was harmless. Tuner v. State, 953 N.E.2d 1039, 1058 (Ind.2011). The improper admission is harmless error if the conviction is supported by other substantial independent evidence of guilt satisfying the reviewing court that there is no substantial likelihood the challenged evidence contributed to the conviction. Id. at 1059.

The DNA evidence from the shoe was not the strongest evidence of guilt. It merely consisted of testimony that a small stain on Guilmette’s shoelace tested presumptively for blood and that subsequent DNA testing gave a mixture from which both Piechocki and Guilmette could not be excluded. Moreover, the testimony of four separate and independent witnesses that Guilmette admitted killing Piechocki with a baseball bat constituted overwhelming substantial independent evidence of guilt. Thus, the erroneous admission of the DNA evidence from the shoe was harmless.

II. JURY INSTRUCTION

Guilmette also contends that the trial court abused its discretion by instructing the jury on accomplice liability. We review a trial court’s decision to give a jury instruction for an abuse of discretion. Treadway v. State, 924 N.E.2d 621, 636 (Ind.2010). We look to whether the challenged instruction correctly states the law, whether there is evidence in the record to support giving the instruction, and whether the substance of the instruction is covered by other instructions. Id.

Guilmette argues only that there was no evidence in the record to support the accomplice liability instruction. We disagree. The evidence at trial showed that Rieder was in the home at the time of the murder and was the owner of several baseball bats. The evidence further showed that the door to the spare bedroom was open at the time Piechocki was brutally beaten to death and that Piechocki did not die immediately, perhaps contradicting the evidence that Rieder was asleep.

The jury also heard testimony that Guil-mette requested a third police interview upon learning that Rieder was telling everyone that Guilmette killed Piechocki. He told the police in that interview that Rieder was awake the whole time and knew Guilmette took Piechocki’s car. He further told the police that he initially lied about Rieder being asleep because he did not want to get Rieder in trouble, but he decided to tell the truth because “see now it looks like [RiederJ’s trying to f*ck me.” Tr. p. 707.

Guilmette recanted his third interview statements at trial; that is, he testified that he lied about lying in his initial interviews. He claimed, “I d[id]n’t even remember that [third] interview until I saw it yesterday. I have no idea what I was even talking about.” Id. at 705. Quite apart from this claim of ignorance, he later testified that he was hoping his lies in the third interview would get the police to investigate Rieder.

The jury could reasonably conclude from this evidence that Rieder committed the murder or was involved in it; that Guil-mette had initially claimed Rieder was asleep to protect him; and, that Guilmette later said Rieder was awake the whole time and knew Guilmette took Piechocki’s car when it appeared Rieder was selling him out. The trial court thus did not abuse its discretion by instructing the jury on accomplice liability. See Smith v. State, 765 N.E.2d 578, 585 (Ind.2002) (no abuse of discretion in instructing on accomplice liability where instruction was at least marginally supported by evidence).

III. SUFFICIENCY OF THE EVIDENCE

Guilmette finally contends that the evidence is insufficient to sustain his murder conviction. In reviewing a sufficiency of the evidence claim, we do not reweigh the evidence or assess the credibility of the witnesses. Treadway, 924 N.E.2d at 639. Rather, we look to the evidence and reasonable inferences drawn therefrom that support the verdict. Id. We affirm the conviction if there is probative evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Id.

Guilmette acknowledges that his cousin Gyuriak and his fellow inmates Kenneth Fox, Shawn Fox, and Russell each testified that he confessed to the murder. Despite their testimony being clear and generally consistent, he challenges their credibility by pointing out their motives to lie and the inconsistencies between their accounts of the confessions.

The credibility of the witnesses or lack thereof was squarely presented to the jury and was a matter for their weight and evaluation. We will not second-guess those determinations. The testimony from Gyuriak, Kenneth, Shawn, and Russell is more than ample evidence to sustain the murder conviction. See Bell v. State, 533 N.E.2d 1238, 1239 (Ind.1989) (evidence sufficient where two jail inmates testified defendant admitted to crime).

CONCLUSION

We therefore affirm Guilmette’s conviction.

MATHIAS, J., concurs.

BARNES, J., concurs in result.

      . Guilmette does not challenge the admission of the evidence on federal constitutional grounds.


author: MAY, Judge.

text:
    Joshua McCaine PILLOW, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 71A04-1206-CR-325.
    Court of Appeals of Indiana.
    April 24, 2013.
    Thomas P. Keller, South Bend, IN, Attorney for Appellant.

      Gregory F. Zoeller, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Joshua McCaine Pillow appeals his conviction after a bench trial of Class C felony operating a motor vehicle after his driving privileges had been forfeited for life. Pillow argues the evidence was insufficient to convict him. We affirm.

FACTS AND PROCEDURAL HISTORY

On January 26, 2010, Pillow agreed to plead guilty to Class D felony operating a motor vehicle while suspended as an habitual traffic violator. The statute defining that crime provides: “In addition to any criminal penalty, a person who is convicted of a felony under subsection (a) forfeits the privilege of operating a motor vehicle for life.” Ind.Code § 9-30-10-16(c). Pillow’s plea agreement provided he would “receive a lifetime suspension of driving privileges.” (App. at 37.) The trial court accepted that plea agreement and entered Pillow’s conviction as a Class D felony.

On July 8, 2011, Pillow was stopped because he was driving with his car’s headlights off. Pillow admitted his license was suspended. The officer checked Pillow’s driving record and determined Pillow “was a[n] habitual traffic violator.” (Tr. at 7.) The officer arrested Pillow for operating a motor vehicle as an habitual traffic violator.

The State charged Pillow with Class C felony operating a motor vehicle after lifetime suspension of driving privileges. Pillow moved to dismiss that charge because neither his 2010 sentencing order nor his Bureau of Motor Vehicles (BMV) record indicated his driving privileges had been suspended for life. The trial court denied that motion, and we declined his petition for interlocutory appeal. The trial court found him guilty, entered a conviction of Class C felony driving while suspended for life, and ordered a six-year sentence.

DISCUSSION AND DECISION

The State convicted Pillow pursuant to a statute that provides “[a] person who operates a motor vehicle after the person’s driving privileges are forfeited for life under [Ind.Code § .9-30-10-16] ... commits a Class C felony.” Ind.Code § 9-30-10-17. Pillow argues we must vacate his conviction because neither his BMV driving record nor the 2010 judgment convicting him of Class D felony driving as an habitual traffic offender indicated his driving privileges were forfeited for life.

In reviewing the sufficiency of the evidence, we examine only the probative evidence and reasonable inferences that support the verdict. We do not assess witness credibility, nor do we reweigh the evidence to determine if it was sufficient to support a conviction. Under our appellate system, those roles are reserved for the finder of fact. Instead, we consider only the evidence most favorable to the trial court ruling and affirm the conviction unless ‘no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.’ This evidence need not overcome every reasonable hypothesis of innocence; it is sufficient so long as an inference may reasonably be drawn from it to support the verdict.

Lock v. State, 971 N.E.2d 71, 74 (Ind.2012) (internal citations and quotations omitted).

Pillow was convicted in 2010 of violating Ind.Code § 9-30-10-16, which provides a person who is convicted of a felony under that section “forfeits the privilege of operating a motor vehicle for life.” The State was not obliged in the case before us to prove Pillow knew of his lifetime forfeiture. Knowledge of a lifetime forfeiture is not an element of Indiana Code § 9-30-10-17, so proof of knowledge is not necessary to sustain a conviction. Brock v. State, 955 N.E.2d 195, 205 (Ind.2011), cert. denied. There, our Indiana Supreme Court concluded “the General Assembly intended section 17 to be a strict liability offense” with no knowledge requirement. Id. at 204-05.

Nor was Pillow’s conviction improper because at the time of his offense the BMV had not received notice of his 2010 conviction. Pursuant to Ind.Code § 9-30-10-16(c), a person who is convicted of a felony under that section “forfeits the privilege of operating a motor vehicle for life.” Pillow’s lifetime suspension was imposed by statute, and we decline his invitation to hold the BMV’s inaction nullifies that statutory requirement. See State v. Vankirk, 955 N.E.2d 765, 769 (Ind.Ct.App.2011) (BMV record does not control status of driving privileges when that record is inconsistent -with mandatory consequences of Ind.Code § 9-30-10-16(c). Trial court’s earlier modification' of conviction from Class D felony to Class A misdemeanor “removes the lifetime forfeiture of a defendant’s driving privileges,” regardless whether BMV record acknowledges that modification.), tram, denied.

There was sufficient evidence Pillow operated a motor vehicle and his driving privileges had been forfeited for life, which is all the State is obliged to prove under section 9-30-10-17. Brock, 955 N.E.2d at 205. We accordingly affirm.

Affirmed.

ROBB, C.J., and PYLE, J., concur.

      . Ind.Code § 9-30-10-17.

      . Ind.Code § 9-30-10-16.

      . The plea agreement required the State to dismiss charges under another cause number and left the parties free to argue for any legal sentence.