Case: 5:13-cv-01608-JRA Doc #: 1 Filed: 07/25/13 1 of 7.

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

DINESOL PLASTICS, INC. 195 East Park Avenue Niles, Ohio 44446 Plaintiff, v. AVON PLASTICS, INC. d/b/a MASTER MARK PLASTIC PRODUCTS One Master Mark Drive Albany, Minnesota 56307 Defendant.

Civil Action No.

Jury Trial Demanded

COMPLAINT The plaintiff, Dinesol Plastics, Inc. (Dinesol), for its complaint against defendant, Avon Plastics, Inc., d/b/a Master Mark Plastic Products (Master Mark), alleges as follows: THE PARTIES 1. The plaintiff, Dinesol, is a corporation organized and existing under the

laws of the State of Ohio, having a principal place of business at 195 East Park Avenue, Niles, Ohio 44446. 2. On information and belief, the defendant, Master Mark, is a corporation

organized under the laws of the State of Minnesota, having a principal place of business at One Master Mark Drive, Albany, Minnesota 56307, and having sold its outdoor landscape and garden products through retail outlets for resale to the general public in the Northern District of Ohio, including Menards retail stores.
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JURISDICTION AND VENUE 3. et seq. 4. This Court has subject matter jurisdiction over this dispute pursuant to 28 This action arises under the patent laws of the United States, 35 U.S.C. 1

U.S.C. 1331, and 1338(a). 5. This Court may exercise personal jurisdiction over Master Mark based

upon its contacts with this forum, including, at least, regularly and intentionally doing business with and through retail outlets here, including Menards. 6. and 1400(b). GENERAL ALLEGATIONS THE DINESOL DESIGN PATENTS 7. For many years, Dinesol has engaged in the development, manufacture, Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(b)

and sale of a wide array of outdoor landscape and garden products. 8. Dinesol has taken steps to protect its innovative designs, including its

outdoor decorative-lattice designs. In particular, Dinesol owns various United States design patents relating to its lattice designs. Relevant to this dispute, Dinesol is the owner of all right, title, and interest to each of the United States design patents identified in Table 1 (hereafter, the Dinesol Design Patents). A copy of each Dinesol Design Patent is attached to this Complaint as indicated in Table 1. Table 1: Dinesol Design Patents United States Design Patent Number D624,201 (201 patent) D651,722 (722 patent) D672,478 (478 patent) Issue Date of Patent September 21, 2010 January 3, 2012 December 11, 2012
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Complaint Exhibit A B C

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GENERAL ALLEGATIONS DEFENDANTS INFRINGING ACTIVITIES 9. Without Dinesols authorization, Master Mark has offered for sale and

sold in the United States decorative-lattice having designs that are covered by the Dinesol Design Patents (hereafter, the Infringing Lattice). Upon information and belief, Master Mark knowingly and intentionally continues to sell the Infringing Lattice as a copy of Dinesols lattice. 10. Charts 1, 2 and 3 below demonstrate Master Marks infringement by

comparing images of the Infringing Lattice sold by Master Mark with figures from the Dinesol Design Patents. Chart 1: Images Depicting Infringement of Dinesols Design Patent D624,201 by the Master Mark Lattice D624,201 Master Mark Lattice

FIG. 1

FIG. 2

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FIG. 3

Chart 2: Images Depicting Infringement of Dinesols Design Patent D651,722 by the Master Mark Lattice D651,722 Master Mark Lattice

FIG. 1

FIG. 2

Chart 3: Images Depicting Infringement of Dinesols Design Patent D672,478 by the Master Mark Lattice D672,478 Master Mark Lattice

FIG. 1
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FIG. 2 11. Defendant Master Mark has infringed and continues to infringe the

Dinesol Design Patents within the meaning of 35 U.S.C. 271(a), at least by making, selling and offering to sell the Infringing Lattice without Dinesols authorization or license. 12. Dinesol has sold and is currently selling its decorative-lattice bearing the

design claimed in the 201, 702 and 478 patents. COUNT 1: PATENT INFRINGEMENT 13. Dinesol re-alleges each and every allegation set forth in paragraphs 1

through 12 above, inclusive, and incorporates them by reference herein. 14. Master Mark has made, offered to sell, and sold into the United States,

including the State of Ohio, and still is making, offering to sell, and selling herein decorative-lattice having designs that infringe one or more of the Dinesol Design Patents without Dinesols authorization. 15. Moreover, Master Mark has made, offered to sell, and sold into the United

States, including the State of Ohio, and still is making, offering to sell, and selling herein decorative-lattice having designs thatan ordinary observer, familiar with the prior art designs, would be deceived into believing is the same as one or more of the Dinesol Design Patents. 16. On information and belief, Master Marks infringement is intentional and
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willful, making this an exceptional case. 17. Dinesol has been and will continue to be irreparably harmed by Master

Marks infringement of the Dinesol Design Patents. JURY DEMAND Dinesol demands a trial by jury. RELIEF SOUGHT WHEREFORE, Dinesol respectfully prays for: A. Judgment that Defendant Master Mark infringed the Dinesol Design

Patents in violation of 35 U.S.C. 271(a); B. An injunction against further infringement of the Dinesol Design Patents

by Defendant Master Mark, its agents, servants, employees, officers, and all others controlled by them; C. An award of damages adequate to compensate Dinesol for the patent

infringement that has occurred pursuant to 35 U.S.C. 284, which shall be trebled as a result of Defendants willful patent infringement, or an award of Master Marks profits from its infringement pursuant to 35 U.S.C. 289, whichever is greater, together with prejudgment interest and costs; D. An assessment of costs, including reasonable attorney fees, pursuant to 35

U.S.C. 285, with prejudgment interest; and E. Such other and further relief as this Court deems just and proper.

Date: July 25, 2013

Respectfully submitted, /Robert J. Herberger/

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Robert J. Herberger, Esq. - 0043848 Stuart A. Strasfeld, Esq. - 0012399 David S. Barbee, Esq. - 0037248 ROTH, BLAIR, ROBERTS, STRASFELD & LODGE 100 East Federal Plaza, Suite #600 Youngstown, OH 44503-1893 (330)744-5211 (330)744-3184 rherberger@roth-blair.com sstrasfeld@roth-blair.com dbarbee@roth-blair.com Attorneys for Plaintiff Dinesol Plastics, Inc.

JS 44 (Rev. 12/12)

Case: 5:13-cv-01608-JRA Doc #: 1-1 Filed: 07/25/13 1 of 2. PageID #: 8

CIVIL COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS
DINESOL PLASTICS, INC. 195 East Park Avenue Niles, Ohio 44446 (b) County of Residence of First Listed Plaintiff Trumbull
(EXCEPT IN U.S. PLAINTIFF CASES)

DEFENDANTS
AVON PLASTICS, INC. d/b/a MASTER MARK PLASTIC PRODUCTS One Master Mark Dr., Albany, Minnesota 56307 County of Residence of First Listed Defendant Stearns
NOTE: (IN U.S. PLAINTIFF CASES ONLY) IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number)

Robert J. Herberger, Esq. Roth, Blair, Roberts, Strasfeld & Lodge 100 East Federal Plaza, Suite #600

Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an X in One Box Only)

1 U.S. Government Plaintiff U.S. Government Defendant 3 Federal Question (U.S. Government Not a Party) Diversity (Indicate Citizenship of Parties in Item III)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff

(For Diversity Cases Only) PTF Citizen of This State 1 Citizen of Another State Citizen or Subject of a Foreign Country 2 3 DEF 1 2 3 and One Box for Defendant) PTF DEF Incorporated or Principal Place 4 4 of Business In This State Incorporated and Principal Place of Business In Another State Foreign Nation 5 6 5 6

IV. NATURE OF SUIT (Place an X in One Box Only)

CONTRACT 110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excludes Veterans) 153 Recovery of Overpayment of Veterans Benefits 160 Stockholders Suits 190 Other Contract 195 Contract Product Liability 196 Franchise REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property TORTS PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury 362 Personal Injury Medical Malpractice CIVIL RIGHTS 440 Other Civil Rights 441 Voting 442 Employment 443 Housing/ Accommodations 445 Amer. w/Disabilities Employment 446 Amer. w/Disabilities Other 448 Education PERSONAL INJURY 365 Personal Injury Product Liability 367 Health Care/ Pharmaceutical Personal Injury Product Liability 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY 370 Other Fraud 371 Truth in Lending 380 Other Personal Property Damage 385 Property Damage Product Liability PRISONER PETITIONS Habeas Corpus: 463 Alien Detainee 510 Motions to Vacate Sentence 530 General 535 Death Penalty Other: 540 Mandamus & Other 550 Civil Rights 555 Prison Condition 560 Civil Detainee Conditions of Confinement FORFEITURE/PENALTY 625 Drug Related Seizure of Property 21 USC 881 690 Other BANKRUPTCY 422 Appeal 28 USC 158 423 Withdrawal 28 USC 157 PROPERTY RIGHTS 820 Copyrights 830 Patent 840 Trademark LABOR 710 Fair Labor Standards Act 720 Labor/Management Relations 740 Railway Labor Act 751 Family and Medical Leave Act 790 Other Labor Litigation 791 Employee Retirement Income Security Act SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g)) OTHER STATUTES 375 False Claims Act 400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 850 Securities/Commodities/ Exchange 890 Other Statutory Actions 891 Agricultural Acts 893 Environmental Matters 895 Freedom of Information Act 896 Arbitration 899 Administrative Procedure Act/Review or Appeal of Agency Decision 950 Constitutionality of State Statutes

FEDERAL TAX SUITS 870 Taxes (U.S. Plaintiff or Defendant) 871 IRSThird Party 26 USC 7609

IMMIGRATION 462 Naturalization Application 465 Other Immigration Actions

V. ORIGIN (Place an X in One Box Only)

1 Original Proceeding 2 Removed from State Court 3 Remanded from Appellate Court 4 Reinstated or Reopened 5 Transferred from Another District
(specify)

6 Multidistrict Litigation

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

VI. CAUSE OF ACTION Brief description of cause:

35 U.S.C. 1 et seq.

Master Mark is selling in the US decorative-lattice having designs covered by (3) of Dinesol design patents
DEMAND $ CHECK YES only if demanded in complaint: Yes No JURY DEMAND: DOCKET NUMBER

CHECK IF THIS IS A CLASS ACTION VII. REQUESTED IN UNDER RULE 23, F.R.Cv.P. COMPLAINT: VIII. RELATED CASE(S) (See instructions): IF ANY JUDGE
DATE

SIGNATURE OF ATTORNEY OF RECORD

07/25/2013
FOR OFFICE USE ONLY RECEIPT # AMOUNT

/Robert J. Herberger/
APPLYING IFP JUDGE MAG. JUDGE

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Case: 5:13-cv-01608-JRA Doc #: 1-1 Filed: 07/25/13 2 of 2. PageID #: 9

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO I.

Civil Categories: (Please check one category only).

1. 2. 3.

General Civil Administrative Review/Social Security Habeas Corpus Death Penalty

*If under Title 28, 2255, name the SENTENCING JUDGE: CASE NUMBER:

II.

RELATED OR REFILED CASES. See LR 3.1 which provides in pertinent part: "If an action is filed or removed to this Court and assigned to a District Judge after which it is discontinued, dismissed or remanded to a State court, and subsequently refiled, it shall be assigned to the same Judge who received the initial case assignment without regardfor the place of holding court in which the case was refiled. Counsel or a party without counsel shall be responsible for bringing such cases to the attention of the Court by responding to the questions included on the Civil Cover Sheet." This action is RELATED to another PENDING civil case. This action is REFILED pursuant to LR 3.1 .

If applicable, please indicate on page 1 in section VIII, the name of the Judge and case number.

III.

In accordance with Local Civil Rule 3.8 , actions involving counties in the Eastern Division shall be filed at any of the divisional offices therein. Actions involving counties in the Western Division shall be filed at the Toledo office. For the purpose of determining the proper division, and for statistical reasons, the following information is requested. ANSWER ONE PARAGRAPH ONLY. ANSWER PARAGRAPHS 1 THRU 3 IN ORDER. UPON FINDING WHICH PARAGRAPH APPLIES TO YOUR CASE, ANSWER IT AND STOP. (1) Resident defendant. If the defendant resides in a county within this district, please set forth the name of such county COUNTY: Corporation For the purpose of answering the above, a corporation is deemed to be a resident of that county in which it has its principal place of business in that district. Non-Resident defendant. If no defendant is a resident of a county in this district, please set forth the county wherein the cause of action arose or the event complained of occurred. COUNTY: STARK (2) Other Cases. If no defendant is a resident of this district, or if the defendant is a corporation not having a principle place of business within the district, and the cause of action arose or the event complained of occurred outside this district, please set forth the county of the plaintiff's residence. COUNTY: (3)

IV.

The Counties in the Northern District of Ohio are divided into divisions as shown below. After the county is determined in Section III, please check the appropriate division. EASTERN DIVISION AKRON CLEVELAND YOUNGSTOWN WESTERN DIVISION TOLEDO (Counties: Allen, Auglaize, Defiance, Erie, Fulton, Hancock, Hardin, Henry, Huron, Lucas, Marion, Mercer, Ottawa, Paulding, Putnam, Sandusky, Seneca VanWert, Williams, Wood and Wyandot) (Counties: Carroll, Holmes, Portage, Stark, Summit, Tuscarawas and Wayne) (Counties: Ashland, Ashtabula, Crawford, Cuyahoga, Geauga, Lake, Lorain, Medina and Richland) (Counties: Columbiana, Mahoning and Trumbull)

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AO 440 (Rev. 12/09) Summons in a Civil Action

UNITED STATES DISTRICT COURT

for the

Northern District Ohio __________ District ofof __________

Dinesol PLastics, Inc.
Plaintiff

v.
Avon Plastics, Inc. d/b/a Master Mark Plastic Products
Defendant

) ) ) ) ) ) )

Civil Action No.

SUMMONS IN A CIVIL ACTION To: (Defendants name and address) AVON PLASTICS, INC.
d/b/a MASTER MARK PLASTIC PRODUCTS One Master Mark Drive Albany, Minnesota 56307

A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney, whose name and address are:

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

CLERK OF COURT

Date:
Signature of Clerk or Deputy Clerk

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AO 440 (Rev. 12/09) Summons in a Civil Action (Page 2)

Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l)) This summons for (name of individual and title, if any) was received by me on (date) .

I personally served the summons on the individual at (place) on (date) I left the summons at the individuals residence or usual place of abode with (name) , a person of suitable age and discretion who resides there, on (date) , and mailed a copy to the individuals last known address; or , who is on (date) I returned the summons unexecuted because Other (specify): . ; or ; or ; or

I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization)

My fees are $

for travel and $

for services, for a total of $

0.00

I declare under penalty of perjury that this information is true.

Date:
Servers signature

Printed name and title

Servers address

Additional information regarding attempted service, etc:

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EXHIBIT A

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EXHIBIT B

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EXHIBIT C

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