IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CIVIL ACTION NO. 1:13-cv-1511 PORT-A-POUR, INC.

a Colorado corporation Plaintiff v. PEAK INNOVATIONS, INC. a Colorado corporation, and MARK E. NELSON an individual Defendants.

COMPLAINT AND JURY DEMAND PLAINTIFF PORT-A-POUR, INC., for its Complaint against PEAK INNOVATIONS, INC. (Peak) and MARK E. NELSON, states and alleges as follows: PARTIES 1. Plaintiff is a Colorado corporation with its principal place of business at 543 2nd

Street, Berthoud, Colorado 80513. 2. Peak is a Colorado corporation with its principal place of business at 1 Industrial

Parkway, Johnstown, CO 80534. 3. Nelson is an individual. On information and belief, Nelson resides at 1116

Lindenwood Drive, Fort Collins, CO 80524. Nelson is the president of Peak and exercises sole control over the operations of Peak.

JURISDICTION AND VENUE 4. This is a civil action for patent infringement arising under the patent laws of the

United States, 35 U.S.C. 101 et seq., for trademark infringement arising under the Lanham Trademark Act, 15 U.S.C. 1051 et seq., and other related claims. 5. This court has jurisdiction over the subject matter of this action pursuant to 15

U.S.C. 1221, and 28 U.S.C. 1331 and 1338(a). 6. This court has supplemental jurisdiction over the non-federal claims pursuant to

28 U.S.C. 1367. 7. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391 and 1400. STATEMENT OF FACTS 8. Plaintiff is engaged in the construction industry and provides concrete batch

plants and related products to construction firms and related companies throughout the United States. 9. In connection with its core business of supplying concrete batch plants, Plaintiff

has, through over twenty (20) years of research and development, innovated and developed several technologies and processes for the production of concrete. 10. Specifically, Plaintiff developed and invented a concrete batch plant using several

proprietary technologies and processes, known as the Port-a-Pour. 11. The Port-a-Pour is unique in the industry and offers several advantages, such as

(a) the capability of locating a concrete batch plant on a construction site, (b) a system to produce concrete from its constituent ingredients with automated controls to optimize the efficiency of the process (i.e., to mix concrete more economically), and (c) a system to produce concrete from its constituent ingredients with automated controls to optimize the quality and strength of the 2

concrete (i.e., to mix concrete with more strength and of a higher quality compared to competitors technologies). 12. One of Plaintiffs inventions, entitled Chemical Dispensing System for a

Portable Concrete Plant, is covered by U.S. Patent No. 7,050,886 (the 886 Patent), which was duly and legally issued on May 23, 2006 by the United States Patent and Trademark office. The 886 Patent names inventors Neil G. Oberg and Jerome J. Doherty, and was assigned to Plaintiff. A true and correct copy of the 886 Patent is attached hereto as Exhibit A. 13. Plaintiff also developed a number of additional proprietary technologies and

processes that are not patented, but which constitute Plaintiffs trade secrets (collectively, Trade Secrets). 14. Plaintiff is known by its tradename Port-a-Pour, which it uses in connection

with its products and related goods in all aspects of the construction and concrete supply industry, and to distinguish its products from all other such products. Plaintiff has used its mark in connection with its products since 1985. 15. Plaintiff has obtained for its Port-a-Pour trademark U.S. Trademark

Registration: No. 3,070,009, International Class (IC) and U.S. Class 013, 019, 021, 023, 031, 034, 035 for use in connection with a concrete batch mixing machine (the Trademark). The mark was registered over 10 years ago and has become incontestable. 16. 17. The Trademark is famous within the meaning of the Lanham Act. On or about February 1, 2006, Plaintiff entered into an Agreement with Peak

whereby Plaintiff licensed the 886 Patent, the Trade Secrets and the Trademark, and granted Peak certain rights to manufacture and sell batch plants and plant support equipment, and agreed

to pay licensing fees and other consideration to Plaintiff (the Licensing Agreement). A true and correct copy of the Licensing Agreement is attached hereto as Exhibit B. 18. Contemporaneously with the execution of the Licensing Agreement, Nelson

(individually) and Peak entered into a Confidentiality and Non-Disclosure Agreement (the First Confidentiality Agreement) by which defendants agreed that they would maintain the confidentiality of Plaintiffs Trade Secrets and other confidential information including, without limitation, any and all patents issued or pending to Port-a-Pour, and would not use any such confidential information without the written consent of Plaintiff. A true and correct copy of the First Confidentiality Agreement is attached hereto as Exhibit C. 19. On July 18, 2007, Nelson (individually) and Peak entered into a second

Confidentiality and Non-Disclosure Agreement (the Second Confidentiality Agreement) by which defendants reaffirmed that they would maintain the confidentiality of Plaintiffs Trade Secrets and other confidential information including, without limitation, any and all patents issued or pending to Port-a-Pour, and would not use any such confidential information without the written consent of Plaintiff. A true and correct copy of the Second Confidentiality Agreement is attached hereto as Exhibit D. 20. 886 Patent. 21. Defendants are, and at all relevant times have been, aware of the existence of the Defendants are, and at all relevant times have been, aware of the existence of the

Trade Secrets and of the fact that the Trade Secrets are Plaintiffs trade secrets within the meaning of CRS 7-74-102.

22.

In addition, Defendants are, and at all relevant times have been, aware that Port-

a-Pour is a trademark owned and reserved for the exclusive use of Plaintiff. 23. Peak began manufacturing and selling concrete batch plants pursuant to the

Licensing Agreement. It was understood that Peak would market and sell the plants under the Licensing Agreement using the Port-a-Pour brand and name under license from Plaintiff. 24. The concrete batch plants manufactured and sold pursuant to the License

Agreement incorporated a chemical dispensing system protected by the 886 Patent (the Patented System). 25. The concrete batch plants manufactured and sold pursuant to the License

Agreement incorporated one or more of Plaintiffs Trade Secrets. 26. Peak defaulted in its obligations under the Licensing Agreement, and in July,

2010, Plaintiff notified Peak that it was terminating the Licensing Agreement in accordance with its terms. 27. The Licensing Agreement provides that upon the termination of the Licensing

Agreement Peak is prohibited from manufacturing additional plants, but may, within one (1) year following termination of the Licensing Agreement, sell all finished plants in its inventory and finish and sell plants in progress. 28. The Licensing Agreement further obligates Peak to pay licensing fees and other

sums due under the contract for any and all plants manufactured and sold pursuant thereto. 29. Notwithstanding the termination of the Licensing Agreement, Peak continued to

manufacture and sell concrete batch plants and other related equipment, products, goods and merchandise (Related Equipment) incorporating the Trade Secrets and the Patented System,

and continues to this day to manufacture and sell concrete batch plants and Related Equipment using the Trade Secrets and the Patented System. 30. Peak, for its private benefit, knowingly and willfully continues to manufacture

concrete batch plants and Related Equipment using Plaintiffs Trade Secrets and/or the Patented System without legal authorization and in derogation of Plaintiffs rights. 31. Peak attempts to conceal its infringements of Plaintiffs Trade Secrets and the

Patented System by (a) making misleading statements that Peak developed the Trade Secrets and the Patented System, (b) issuing misleading and false marketing materials that conceal its use of Plaintiffs Trade Secrets and the Patented System, and (c) other willful and knowing acts. 32. Peak also continues to use the name Port-a-Pour without authorization for its

economic benefit. 33. Peak maintains one or more photographs on its web site (www.peak-

innovations.com) of equipment bearing the Trademark, i.e., Port-a-Pour. 34. In addition, Peak registered the domain name www.portapour.com and uses that

domain name to redirect traffic to its own site. In other words, if a user enters www.portapour.com into his or her browser, the site will automatically redirect to www.peakinnovations.com. FIRST CLAIM FOR RELIEF (Patent Infringement) 35. Plaintiff realleges and incorporates by this reference each and every allegation

contained in the preceding paragraphs.

36.

Peaks activities in making, using, selling and/or offering to sell in the United

States concrete batch plants and Related Equipment incorporating the Patented System constitute direct infringement of the 886 Patent, in violation of 35 U.S.C. 271(a). 37. As president of Peak, Nelsons activities in causing Peak to make, use, sell and/or

offering to sell in the United States concrete batch plants and Related Equipment incorporating the Patented System constitutes direct infringement of the 886 Patent, in violation of 35 U.S.C. 271(a). 38. Nelson has a separate and independent legal duty from Peak to refrain from the

misuse and infringement of the 886 Patent, and Nelsons infringement of the 886 Patent gives rise to a separate and independent claim from the one against Peak. 39. Defendants actions in infringing the 886 Patent have been, and are, willful,

deliberate and/or in conscious disregard of Plaintiffs rights, making this an exceptional case within the meaning of 35 U.S.C. 285 and entitling Plaintiff to enhanced damages and an award of its attorneys fees. 40. Defendants infringement of the 886 Patent has caused damage to Plaintiff in an

amount to be determined at trial. 41. Defendants infringement of the 886 Patent has caused and will continue to cause

irreparable injury to Plaintiff, to which there exists no adequate remedy at law. Defendants infringement of the 886 Patent will continue unless enjoined by this court. SECOND CLAIM FOR RELIEF (Violation of the Lanham Act) 42. Plaintiff realleges and incorporates by this reference each and every allegation

contained in the preceding paragraphs.

43.

By reason of Peaks unauthorized use of the registered Trademark, Plaintiff

hereby asserts a claim against defendants for injunctive and monetary relief pursuant to Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a), with regards to the false designation of origin and false descriptions and representations in commerce of defendants unauthorized products. 44. Defendants infringement of the Trademark has caused damage to Plaintiff in an

amount to be determined at trial. 45. Defendants infringement of the Trademark has caused and will continue to cause

irreparable injury to Plaintiff, to which there exists no adequate remedy at law. Defendants infringement of the Trademark will continue unless enjoined by this court. THIRD CLAIM FOR RELIEF (Infringement of Registered Trademark) 46. Plaintiff realleges and incorporates by this reference each and every allegation

contained in the preceding paragraphs. 47. By reason of Peaks unauthorized use of the Trademark, Plaintiff hereby asserts a

claim against defendants for injunctive and monetary relief pursuant to 15 U.S.C. 1114(b) with respect to defendants infringement of the registered Trademark. 48. Defendants infringement of the Trademark has caused damage to Plaintiff in an

amount to be determined at trial. 49. Defendants infringement of the Trademark has caused and will continue to cause

irreparable injury to Plaintiff, to which there exists no adequate remedy at law. Defendants infringement of the Trademark will continue unless enjoined by this court.

FOURTH CLAIM FOR RELIEF (Violation of Cyberpiracy Prevention Section) 50. Plaintiff realleges and incorporates by this reference each and every allegation

contained in the preceding paragraphs. 51. By reason of Peaks unauthorized use of the domain www.portapour.com

Plaintiff hereby asserts a claim against defendants for violation of the Cyberpiracy Prevention provisions of the Lanham Act, 15 U.S.C. 1125(d). 52. Peaks unauthorized use of Plaintiffs name, which is protected as a registered

mark, is a bad faith attempt to profit from Plaintiffs Trademark and is undertaken with the intent to divert customers from Plaintiffs online location to a site accessible under the domain name that could harm the goodwill represented by the Trademark, and for improper financial gain. 53. Defendants improper use of the domain name www.portapour.com has caused

damage to Plaintiff in an amount to be determined at trial. 54. Defendants improper use of the domain name www.portapour.com has caused

and will continue to cause irreparable injury to Plaintiff, to which there exists no adequate remedy at law. Defendants improper use of the domain name www.portapour.com will continue unless enjoined by this court. FIFTH CLAIM FOR RELIEF (Misuse of Trade Secrets in Violation of Colorado Uniform Trade Secrets Act, CRS 7-74-101 et seq.) 55. Plaintiff realleges and incorporates by this reference each and every allegation

contained in the preceding paragraphs. 56. 7-74-102. The Trade Secrets constitute Plaintiffs trade secrets within the meaning of CRS

57.

Peaks activities in making, using, selling and/or offering to sell in the United

States concrete batch plants and Related Equipment incorporating the Trade Secrets constitute a misappropriation of the Trade Secrets in violation of CRS 7-74-101 et seq. 58. As president of Peak, Nelsons activities in causing Peak to make, use, sell and/or

offering to sell in the United States concrete batch plants and Related Equipment incorporating the Trade Secrets constitute a misappropriation of the Trade Secrets in violation of CRS 7-74101 et seq. 59. Defendants misappropriated the Trade Secrets by using Plaintiffs trade secrets

without express or implied consent of Plaintiff, in violation of CRS 7-74-101 et seq. 60. Defendants, and each of them, had and continue to have a duty to Plaintiff to

maintain the secrecy of Plaintiffs trade secrets and to limit the use of Plaintiffs trade secrets. 61. Defendants, and each of them, misappropriated Plaintiffs trade secrets by using

the Trade Secrets with knowledge and reason to know that Defendants use of the Trade Secrets was in violation of Defendants duty to maintain the secrecy of and limit the use of Plaintiffs trade secrets. 62. Defendants misappropriation of the Trade Secrets has caused damage to Plaintiff

in an amount to be determined at trial. 63. Defendants misappropriation of the Trade Secrets is attended by circumstances

of fraud, malice and/or willful and wanton disregard of Plaintiffs rights and feelings, justifying an award of exemplary damages in accordance with CRS 7-74-104(2). 64. Defendants misappropriation of Plaintiffs trade secrets has caused and will

continue to cause irreparable injury to Plaintiff, to which there exists no adequate remedy at law.

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Defendants misappropriation of Plaintiffs trade secrets will continue unless enjoined by this court. SIXTH CLAIM FOR RELIEF (Breach of Licensing Agreement) 65. Plaintiff realleges and incorporates by this reference each and every allegation

contained in the preceding paragraphs. 66. 67. Plaintiff and Peak are parties to the Licensing Agreement. Plaintiff performed each of its obligations under the Licensing Agreement, or, in

the alternative, Plaintiffs performance was excused. 68. Peak breached the contract by failing to pay the licensing fees and other

consideration required by the Licensing Agreement. 69. Plaintiff was damaged by Peaks breach of the Licensing Agreement in an amount

to be determined at trial. SEVENTH CLAIM FOR RELIEF (Breach of First and Second Confidentiality Agreements) 70. Plaintiff realleges and incorporates by this reference each and every allegation

contained in the preceding paragraphs. 71. Plaintiff and Defendants are parties to the First Confidentiality Agreement and the

Second Confidentiality Agreement (collectively, the Confidentiality Agreements). 72. Defendants, and each of them, had and continue to have a duty to Plaintiff to

maintain the secrecy of Plaintiffs Protected Information, as that term is defined in the Confidentiality Agreements, consisting of the 886 Patent, the Patented System, and the Trade Secrets.

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73.

Plaintiff performed each of its obligations under the Confidentiality Agreements,

or, in the alternative, Plaintiffs performance was excused. 74. Defendants, and each of them, breached the Confidentiality Agreements by

disclosing and using, without Plaintiffs authorization, Protected Information, as that term is defined in the Confidentiality Agreements, consisting of the 886 Patent, the Patented System, and the Trade Secrets. 75. Plaintiff was damaged by defendants breach of the Confidentiality Agreements in

an amount to be determined at trial. EIGHTH CLAIM FOR RELIEF (Civil Conspiracy) 76. Plaintiff realleges and incorporates by this reference each and every allegation

contained in the preceding paragraphs. 77. Peak and Nelson conspired and agreed, by words or conduct, to infringe upon the

886 Patent and the Trademark. 78. Peak and Nelson conspired and agreed, by words or conduct, to misappropriate

the Trade Secrets. 79. Peaks and Nelsons infringement of the 886 Patent and Trademark and

misappropriation of the Trade Secrets was overt and unlawful. 80. Plaintiff was damaged by Peaks and Nelsons infringement of the 886 Patent

and Trademark and misappropriation of the Trade Secrets in an amount to be proved at trial. 81. In addition, Plaintiff should be awarded damages for Peaks and Nelsons willful

and unlawful conduct as provided by law.

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PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that judgment be entered in its favor and against Peak and Nelson as follows: A. Declaring that Peak and Nelson have infringed United States Patent 7,050,886

and that Peaks and Nelsons infringement of the 886 Patent was and continues to be willful; B. Issuing temporary, preliminary, and permanent injunctions enjoining Peak,

Nelson, and their respective officers, agents, subsidiaries, employees, and those in privity with or that act in concert with any of the foregoing, from further activities that constitute infringement of United States Patent No. 7,050,886, pursuant to 35 U.S.C. 283. C. Awarding Plaintiff damages arising out of Peaks and Nelsons infringement of

United States Patent No. 7,050,886 for each act of infringement, and trebling those damages pursuant to 35 U.S.C. 284, together with costs and pre- and post-judgment interest. D. Issuing temporary, preliminary, and permanent injunctions enjoining Peak,

Nelson, and their respective officers, agents, subsidiaries, employees, and those in privity with or that act in concert with any of the foregoing, from further activities that constitute infringement of United States Trademark No. 3,070,009, and from (a) manufacturing, distributing, offering for sale, holding for sale or advertising any products, merchandise or goods bearing the name or trademark of Plaintiff or any colorable variation or imitation thereof, and (b) representing that any products, merchandise or goods manufactured, distributed, sold, held for sale or advertised by them is authorized by Plaintiff in this district or in any other district in which Plaintiff seeks to enforce this Courts injunctive order. E. Ordering that the domain name www.portapour.com be assigned to Plaintiff.

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F.

Declaring that Peak and Nelson have misappropriated Plaintiffs Trade Secrets,

and that Peaks and Nelsons misappropriation of the Trade Secrets was and continues to be attended by circumstances of fraud, malice and/or willful and wanton disregard of Plaintiffs rights and feelings; G. Issuing temporary, preliminary, and permanent injunctions enjoining Peak,

Nelson, and their respective officers, agents, subsidiaries, employees, and those in privity with or that act in concert with any of the foregoing, from further activities that constitute misappropriation of Trade Secrets, pursuant to CRS 7-74-103. H. Awarding Plaintiff damages arising out of Peaks and Nelsons misappropriation

of Plaintiffs Trade Secrets for each act of misappropriation pursuant to CRS 7-74-104(1), and awarding exemplary damages pursuant to CRS 7-74-104(2) in an amount not exceeding the award made pursuant to CRS 7-74-104(1), together with costs and pre- and post-judgment interest. I. J. Declaring that Peak is in breach of the Licensing Agreement; Awarding damages for Peaks breach of the Licensing Agreement, together with

costs and pre- and post-judgment interest; K. L. Declaring that Peak and Nelson are in breach of the Confidentiality Agreements; Awarding damages for Peaks and Nelsons breach of the Confidentiality

Agreements, together with costs and pre- and post-judgment interest; M. Awarding damages caused by the civil conspiracy of Peak and Nelson, including

actual damages, non-economic damages, together with costs and pre- and post-judgment interest and all other relief authorized by law; and

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N.

Awarding Plaintiffs all of their costs of litigation, reasonable attorneys fees,

expert witness fees, and other costs and expenses as permitted under the contracts in question or law; O. Awarding Plaintiffs pre-judgment interest, post-judgment interest, and the cost of

collection of the judgment, including, without limitation, reasonable attorneys fees; P. Awarding such other relief as the Court may be just and proper. JURY DEMAND Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff demands a trial by jury on all issues so triable. DATED: June 12, 2013 Respectfully Submitted, DANIEL J. CULHANE LLC By: s/ Daniel J. Culhane Daniel J. Culhane 1600 Broadway, Suite 1400 Denver, Colorado 80202 Telephone: (303) 945-2070 Fax: (720) 420-5998 Dan@CulhaneLaw.com ATTORNEY FOR PLAINTIFF

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