CFM Consolidated v. Specialty Auto Parts

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 following: 21 22 23 24 25 1. THE PARTIES Plaintiff, Flex-a-lite is a Washington corporation with a place of business at 7009 Specialty Auto Parts U.S.A.
, Inc., a Michigan corporation Defendant. v. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WESTERN WASHINGTON CFM Consolidated, Inc., a Washington corporation Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) )
CAUSE NO. COMPLAINT FOR PATENT INFRINGMENT, COPYRIGHT INFRINGEMENT, TRADE DRESS INFRINGEMENT, AND UNFAIR COMPETITION JURY DEMAND
COMES NOW the Plaintiff, CFM Consolidated, Inc. doing business as Flex-a-lite (hereinafter Flex-a-lite), through its undersigned counsel for its Complaint against Defendant Specialty Auto Parts U.S.A., Inc. doing business as ProForm (hereinafter Defendant) states the
45th St Ct E, Fife, WA 98424. Flex-a-lite is engaged in the manufacturer, distribution, and sale
COMPLAINT FOR PATENT INFRINGEMENT, COPYRIGHT INFRINGEMENT, TRADE DRESS INFRINGEMENT, & UNFAIR COMPETITION (NO. 0xxx ) - 1
McCormack Intellectual Property Law Business Law P.S. 617 Lee Street Seattle, WA 98109 p. 206.381.8888 / f. 206.381.1988
1 2 3 4 5 6 7
of a full line of belt-driven and electric fans, transmission and oil coolers for automobiles in the United States and abroad, directly and/or through its licensees. 2. Defendant, upon information and belief, is a Michigan corporation having its
principal place of business in Warren, Michigan that engages in the manufacture, distribution, and sale of automotive fans and other automotive parts and accessories. Upon information and belief Defendant does business in this state and imports goods to this state, which have infringed Flex-a-lites patent and other intellectual property rights.
8 9 10 11 12 13 14 15 16 17 18 19 unfair competition claim), 28 U.S.C. 1367(a) (supplemental jurisdiction over State claims), and 20 28 U.S.C. 1332(a) (diversity of citizenship). Flex-a-lite is a Washington State corporation 21 22 23 24 25 whereas Defendant is a Michigan State corporation. The amount in question herein exceeds $75,000. 1). 4. This is also an action in law and equity for copyright infringement arising under 3. JURISDICTION AND VENUE This is an action for patent infringement arising under the Patent Act (35 U.S.C.
the Copyright Act (17 U.S.C. 101 et seq.) and trade dress infringement arising under the Lanham Act (15 U.S.C. 1051). 5. This Court has jurisdiction over the subject matter of this action pursuant to 28
U.S.C. 1331 as the action arises under the Patent Act (35 U.S.C. 1), the U.S. Copyright Act of 1976 (17 U.S.C. 101, et seq.), and 15 U.S.C 1121 (actions arising under The Lanham Act), 28 U.S.C. 1338(a) (acts of Congress relating to trademarks), 28 U.S.C. 1338(b) (pendent
1 2 3 4 5 6 7
6.
This Court has personal jurisdiction over Defendant, by virtue of the fact that it
has (1) transacted business within the State of Washington, (2) infringed Flex-a-lites intellectual property within the State, and/or (3) infringed Flex-a-lites intellectual property outside the State causing injury to property within the State. 7. Venue is proper in this District under 28 U.S.C. 1391 and 28 U.S.C. 1400 as
the Defendant is a corporation subject to personal jurisdiction in this district as noted above, and is therefore deemed to reside here for purposes of venue.
8 9 10 11 12 13 14 15 16 17 18 19 2006. The design patent covers the ornamental design for a combined fan assembly and 20 shroud. A copy of design patent D532,095 is attached to this Complaint as Exhibit 1, and 21 22 23 24 25 incorporated herein by reference. Black Magics packaging states that it is patented. 10. Flex-a-lite is the owner of the copyright registration in fan assembly instruction 8. FACTS COMMON TO ALL COUNTS In 1962, Flex-a-lite was founded with the original flex-fan concept developing
the first flexible fan out of hand-cut fiberglass roofing material to reduce the load on an engine while increasing horsepower. Over the years, Flex-a-lites business has expanded to a 75,000 square foot facility that manufactures a full line of belt-driven and electric fans, transmission and oil coolers, electric radiators, and related components. Flex-a-lite is the manufacturer and creator of the Black Magic S-Blade (Black Magic) automotive fan and other products at issue in this complaint. 9. Flex-a-lite is the owner of the registered design patent D532,095 for Black Magic
(the 095 patent), with a filing date of October 7, 2004 and a date of patent of November 16,
materials titled Model 30 or 35 Electric Fan Installation Instructions with an effective date of
1 2 3 4 5 6 7
May 10, 2004. A copy of copyright registration TXu 1-172-055 is attached to this Complaint as Exhibit 2, and incorporated herein by reference. 11. Flex-a-lites Black Magic trade dress is shown in Exhibit 3, which is attached to
this Complaint and incorporated herein by reference. 12. Upon information and belief, Defendant has manufactured, offered for sale, sold,
displayed, and distributed in the United States s-blade fans (hereafter infringing fans) and instructional materials (hereafter infringing written materials) that infringe Flex-a-lites
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16. Flex-a-lite has no control over the nature, quality, or pricing of Defendants registered patent, registered copyright, and trade dress (collectively infringing items). 13. Exhibit 4, which is attached to this Complaint and incorporated herein by
reference, shows the infringing fans sold by Defendant that an ordinary observer would find nearly identical to the patented Black Magic design sold by Flex-a-lite. 14. Exhibit 5, which is attached to this Complaint and incorporated herein by
reference, shows the striking similarity of the infringing written materials distributed by Defendant to the copyrighted instructions distributed by Flex-a-lite. 15. Defendant has not been authorized by Flex-a-lite to use the Black Magic patent or
trade dress or the fan installation instruction materials in the United States or any other country.
products, advertising, or any other aspect of the business conduct of Defendant. 17. Any failure, neglect, or default by Defendant in manufacturing, distributing,
pricing or advertising products labeled with the Black Magic patent, Flex-a-lite copyright and trade dress will reflect adversely on Flex-a-lite, resulting in loss of sales of genuine Flex-a-lite
1 2 3 4 5 6 7 8 9 10 11 12 13
products and thwarting Flex-a-lites considerable efforts and expenditures to promote their genuine products under the Black Magic design. COUNT ONE PATENT INFRINGEMENT 18. 19. Paragraphs 1 through 17 are incorporated herein by reference. Upon information and belief, Defendant has manufactured, distributed, and sold
the infringing fans within the United States to various unknown retailers and the general public. Defendant may have also distributed the infringing fans outside the United States as well. In addition to the wherein, Defendant also distributed and sold other Flex-a-lite model fans and products to the general public and other companies as yet unknown. 20. Defendant manufactured, distributed, and sold the infringing fans within the
United States as a pattern of systematic and willful patent infringement. 21. Defendants have infringed and continue to infringe the 095 patent, literally and
14 under the doctrine of the equivalents, by using devices infringing the claims of the Patent. 15 16 17 18 19 20 21 22 23 24 25 22. Defendants infringement has been deliberate, willful, intentional and with full
knowledge of the existence of the patent, because Defendant had received communication from Flex-a-lite previously regarding patents and the Flex-a-lite Black Magic product packaging indicated that it was patented. 23. Defendants infringement has caused and will continue to cause Flex-a-lite
substantial damage and irreparable injury. Flex-a-lite will continue to suffer damages and irreparable injury unless and until defendants are enjoined by this Court from continuing such infringement and specifically enjoined from any further use of any device, process or equipment covered by the claims of the Patent in the United States.
1 2 3 4 5 6 fan installation instructions in violation of Flex-a-lites copyright in the material. 7 26. 8 9 10 11 12 13 14 15 16 17 18 19 confusing the public and causing Flex-a-lite to suffer irreparable damages and lost profits. 20 21 22 23 24 25 31. Flex-a-lites sale of its own works and derivative works is prejudiced by Flex-a-lites copyright in the fan installation instructions. 27. The Defendants infringing written materials are not only substantially similar, The infringing written materials produced and distributed by Defendant infringes 24. entirety. 25. Defendant unlawfully and willfully copied all or part of Flex-a-lites copyrighted COUNT TWO COPYRIGHT INFRINGEMENT Paragraphs 1 through 23 are incorporated herein as though set forth in their
but are strikingly similar to Flex-a-lites copyrighted instructions exuding the exact same look and feel as Flex-a-lites copyrighted material. 28. Flex-a-lite has been damaged from Defendants unlawful and willful copying of
Flex-a-lites copyrighted material. 29. Defendants infringing written materials dilute the market and serve to destroy the
distinctiveness of Flex-a-lites copyrighted works. 30. Defendants copying of Flex-a-lites instructions, destroys the publics
identification of the instructions to Flex-a-lite as Flex-a-lites exclusive property, thereby
Defendants copyright infringement. // //
1 2 3 4 5 6 7 8 9 10 11 12 13
COUNT THREE TRADE DRESS INFRINGEMENT AND FALSE DESIGNATION OF ORIGIN 32. entirety. 33. When designing and manufacturing Black Magic and other fans, Flex-a-lite Paragraphs 1 through 31 are incorporated herein as though set forth in their
adopted a particular dress, design, and combination of features to produce a particular visual appearance for the purpose of presenting its goods to the public. The Black Magic trade dress is associated with Flex-a-lite so as to create secondary meaning. 34. Defendant has attempted to imitate Flex-a-lites particular dress, design, and
combination of features, as they pertain to the Black Magic and other fans in such a way as to mislead the public. 35. The multiple similarities between Flex-a-lites patented Black Magic and other
fan designs and Defendants infringing materials evidence a conscious intent by Defendant to 14 imitate and copy Flex-a-lite. 15 16 17 18 19 20 21 22 23 24 25 38. entirety. Paragraphs 1 through 37 are incorporated herein as though set forth in their 36. Defendants actions are intended to and/or operate to confuse the public,
including but not limited to when the infringing fans are installed in an automobile. 37. Flex-a-lites sale of its own works and derivative works are prejudiced by
Defendants imitation and copying of causing Flex-a-lite irreparable damage. COUNT FOUR UNFAIR COMPETITION
1 2 3 4 5 6 7
39.
This action for unfair competition is a substantial and related claim to Defendants
infringement of Flex-a-lites patent and copyright and pursuant to 1338(b) of Title 28 of the United States Code, the court has and should assume pendent jurisdiction of this claim. 40. Defendants actions in violation of the trademark registration statute are a per se
violation of the Washington Consumer Protection Act, RCW 19.86.090. 41. Defendants actions were unfair and deceptive in violation of the Washington
State Consumer Protection Act, RCW 19.86.020. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Prayer for Relief WHEREFORE, the Plaintiff, Flex-a-lite, requests that this Court enter judgment in its favor and against Defendant and all agents, employees and all persons in active concert of participation with Defendants and that Flex-a-lite be granted the following relief: A. Enter a preliminary and permanent injunction restraining the defendants and their 42. In unlawfully and willfully copying and placing the design of Flex-a-lites Black
Magic on Defendants infringing fans, Defendant created a likelihood of confusion among the public as to the original source of the fans and has contributed to the dilution of the distinctive quality of Flex-a-lites work in the marketplace. 43. As a direct and proximate result of the actions of Defendants herein, Flex-a-lite
has suffered actual damages in amounts to be proven at time of trial.
officers, agents, employees and all persons in active concert or participation with the defendants from appropriating and using Flex-a-lites patented, copyrighted, and trademarked works; B. Defendant be enjoined during the pendency of this action and permanently
thereafter from selling its infringing materials to the public and other private companies;
1 2 3 4 5 6 7
C.
Defendant be ordered to pay to Flex-a-lite all damages suffered by Flex-a-lite due
to their unlawful acts, with prejudgment interest, as well as account for and pay to Flex-a-lite all gains and profits that they have enjoyed at Flex-a-lites expense and that such damages include Flex-a-lites costs and attorneys fees, but in no event less than a reasonable royalty in accordance with 35 U.S.C. 284. At present, Flex-a-lite cannot ascertain the full extent of its damages and lost profits; D. A finding that Defendants conduct is willful, warranting an award of treble
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DATED this 17th day of October, 2012. MCCORMACK INTELLECTUAL PROPERTY LAW BUSINESS LAW PS ___/S Tim McCormack/__________________ Timothy B. McCormack, WSBA # 28074 McCormack Intellectual Property Law Business Law P.S. 617 Lee St. Seattle, WA 98109 p. 206.381.8888/ f. 206.381-1988 tim@McCormackLegal.com damages under 35 U.S.C. 284; E. F. Statutory damages; Such other relief as the equities of the case may require and as this Court may
deem just and proper under the circumstances; and G. A trial by jury.

CFM Consolidated v. Specialty Auto Parts

Enviado por

Dados do documento

Descrição original:

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

CFM Consolidated v. Specialty Auto Parts

Enviado por

Direitos autorais:

Formatos disponíveis

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 following: 21 22 23 24 25 1. THE PARTIES Plaintiff, Flex-a-lite is a Washington corporation with a place of business at 7009 Specialty Auto Parts U.S.A.

identification of the instructions to Flex-a-lite as Flex-a-lites exclusive property, thereby

Defendants copyright infringement. // //

has suffered actual damages in amounts to be proven at time of trial.

Defendant be ordered to pay to Flex-a-lite all damages suffered by Flex-a-lite due

Você também pode gostar