Tough Hook v. Botach - Complaint

Case 2:18-cv-01827-VCF Document 1 Filed 09/20/18 Page 1 of 12
1 W. WEST ALLEN
Nevada Bar No. 5566
2 wwa@h2law.com
JONATHAN FOUNTAIN
3 Nevada Bar No. 10531
jwf@h2law.com
4 HOWARD & HOWARD ATTORNEYS PLLC
3800 Howard Hughes Parkway, Suite 1000
5 Las Vegas, Nevada 89169
Telephone: 702.257.1483
6 Facsimile: 702.567.1568
7 MEREDITH F. MENDEZ (will comply with LR IA 11-2 within 45 days)

Florida Bar No. 502235
8 MMendez@malloylaw.com
JOHN FULTON, JR. (will comply with LR IA 11-2 within 45 days)
9 Florida Bar No. 173800
JFulton@malloylaw.com
10 MALLOY & MALLOY
HOWARD & HOWARD ATTORNEYS PLLC
2800 S.W. 3rd Avenue

11 Miami, Florida 33129
Telephone: 305.858.8000
12
Attorneys for Plaintiff, Tough Hook, LLC
13
14 UNITED STATES DISTRICT COURT

15 DISTRICT OF NEVADA
16
TOUGH HOOK, LLC, a Delaware limited Case No.:
17 liability company,
18 Plaintiff, COMPLAINT
v.
19
BOTACH, INC., a Nevada Corporation,
20
Defendant.
21
22
23
Plaintiff, Tough Hook, LLC (“Plaintiff”), by and through undersigned counsel, hereby files
24
its Complaint against Botach, Inc. (“Defendant”) and alleges as follows:
25
PARTIES
26
1. Plaintiff, Tough Hook, LLC, is a limited liability company organized and existing
27
under the laws of the State of Delaware, with an address at 108 West 13th Street, Wilmington,
28
Delaware 19801.
1
1 2. Upon information and belief, Defendant, Botach, Inc., is a corporation organized and
2 existing under the laws of the State of Nevada, with an address at 4775 W. Harmon Avenue, Las
3 Vegas, NV, 89103.
4 JURISDICTION AND VENUE
5 3. This is an action for injunctive and other relief under the patent laws of the United
6 States, 35 U.S.C. §1, et seq., for design patent infringement.
7 4. This is also an action for injunctive and other relief under the Federal Trademark Act,
8 15 U.S.C. §1051, et seq., (“Lanham Act”), particularly 15 U.S.C. §1125(a), for trade dress
9 infringement and unfair competition.
10 5. Plaintiff also asserts claims in accordance with common law rights under the laws of
11 the State of Nevada, for trade dress infringement and unfair competition.
12 6. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§1331 and 1338,
13 and 15 U.S.C. §1121.
14 7. Upon information and belief, personal jurisdiction is proper in that:
15 a. Defendant’s state of residence is Nevada, the state where Defendant is
16 incorporated; or
17 b. Defendant has operated, conducted, engaged in, or carried on a business
18 venture in this state, and the District of Nevada, from which this action arises;
19 or
20 c. Defendant has committed tortious acts within this state, and the District of
21 Nevada, including the infringement set forth herein; or
22 d. Defendant has engaged in substantial and not isolated activity within this
23 state, and the District of Nevada.
24 8. Venue is proper under 28 U.S.C. §§1391(b) because the wrongful acts committed by
25 Defendant occurred in the District of Nevada, and a substantial part of the events or omissions
26 giving rise to the claim occurred therein, or a substantial part of the property that is the subject of the
27 action is situated therein.
28 / / /
2
1 9. Venue is also proper under 28 U.S.C. §1400(b) because Defendant’s state of
2 residence is Nevada, the state where Defendant is incorporated.
3 FACTUAL BACKGROUND
4 10. Since at least as early as 2013, Plaintiff has been in the business of designing,
5 causing to be manufactured, marketing, promoting, offering for sale, and distributing a proprietary
6 line of reversible hangers under the trademark “TOUGH HOOK.”
7 11. Plaintiff has invested considerable time, creative effort, and resources to create and
8 develop goodwill in its exclusive and innovative “TOUGH HOOK” hanger.
9 PLAINTIFF’S PATENT AND TRADE DRESS RIGHTS
10 12. Plaintiff is the owner by way of assignment of U.S. Design Patent No. D702,049
11 (“the ‘049 Patent”) which was duly and lawfully issued on or about April 8, 2014, for the
12 ornamental design of its innovative reversible hanger, as shown and described therein (hereafter, the
13 “Plaintiff’s Patented Design”). See Exhibit A.
14 13. Upon information and belief, Plaintiff has and continues to provide public notice of
15 its rights in and to the Plaintiff’s Patented Design since as early as about February 2015 by way of
16 its website located at www.tough-hook.com, which clearly states: “Our Patent – The Tough Hook
17 Hanger is covered and protected by US Patent D702049.” See Exhibit B.
18 14. The unique appearance of the “TOUGH HOOK” hanger is recognizable as the style
19 and work and trade dress of Plaintiff.
20 15. Plaintiff’s trade dress consists of an overall look or commercial impression resulting
21 from the arbitrary selection and combination of certain non-functional features, namely, an enlarged
22 hook having an elongated triangular base portion, an inverted trapezoidal portion having a
23 trapezoidal aperture there through disposed opposite the enlarged hook, and an I-beam like cross-
24 section disposed along the entire periphery thereof (collectively hereafter, “Plaintiff’s Product Trade
25 Dress”). See Exhibit C.
26 16. Prior to the infringing acts of Defendant complained of herein, Plaintiff adopted and
27 used in commerce Plaintiff’s Product Trade Dress for its “TOUGH HOOK” hangers. Such use has
28 been continuous since its inception.
3
1 17. Prior to the infringing acts of Defendant complained of herein, Plaintiff achieved
2 significant commercial success and substantial sales, through advertising and promotion of hangers
3 utilizing Plaintiff’s Product Trade Dress, throughout the State of Nevada and the United States,
4 including the District of Nevada.
5 18. By virtue of its unique style and continuous and widespread use, prior to the
6 infringing acts of Defendant complained of herein, Plaintiff’s Product Trade Dress developed a
7 secondary meaning and significance, and has been readily recognizable as distinguishing Plaintiff’s
8 goods from those of others.
9 DEFENDANT’S INFRINGING ACTIONS
10 19. Upon information and belief, Defendant had direct and actual knowledge and notice
11 of Plaintiff’s Patented Design and Plaintiff’s Product Trade Dress at least as early as May 2014, at
12 which time Defendant contacted Plaintiff with a request to open a new dealer account via Plaintiff’s
13 website located at www.tough-hook.com. See Exhibit D.
14 20. Defendant purchased hundreds of “TOUGH HOOK” hangers directly from Plaintiff
15 between about mid 2014 through about September 2016, as shown on representative Purchase
16 Orders to Plaintiff which were generated by Defendant. See Exhibit E.
17 21. Upon information and belief, in or about September 2016, Plaintiff ceased sales of its
18 “TOUGH HOOK” hangers to Defendant as a result of a dispute regarding payment.
19 22. Immediately thereafter, in or about November 2017, and despite having direct and
20 actual knowledge and notice of Plaintiff’s Patented Design and Plaintiff’s Product Trade Dress,
21 Defendant offered for sale copies of Plaintiff’s “TOUGH HOOK” hangers utilizing and embodying
22 Plaintiff’s Patented Design and Plaintiff’s Product Trade Dress via Defendant’s website located at
23 www.botach.com. Defendant offered its replica product as “Hang-Gear Heavy Duty Equipment
24 Hangers,” (the “Infringing Hangers – Type I”). See Composite Exhibit F.
25 23. In or about November 2017, Plaintiff notified Defendant that the “Hang-Gear Heavy
26 Duty Equipment Hangers” advertised on Defendant’s website were an infringement of Plaintiff’s
27 Patented Design and Plaintiff’s Product Trade Dress. Upon information and belief, Defendant,
28
4
1 therefore, immediately removed all references to the “Hang-Gear Heavy Duty Equipment Hangers,”
2 i.e., the Infringing Hangers – Type I, from its website.
3 24. On or about January 24, 2018, Defendant sought to acquire Plaintiff’s product and
4 issued Purchase Order Number NB012418 to Plaintiff for 7,000 units of Plaintiff’s Tough Hook
5 hangers, which comprise Plaintiff’s Patented Design and Plaintiff’s Product Trade Dress. See
6 Exhibit G. However, in view of Defendant’s prior payment issues, Plaintiff declined to fulfill the
7 order.
8 25. Thereafter, upon information and belief, in or about early 2018, and subsequent to the
9 issuance of the ‘049 Patent and the initial sales of goods by or on behalf of Plaintiff embodying
10 Plaintiff’s Patented Design and Plaintiff’s Product Trade Dress, Defendant commenced and has
11 continued making, importing, using, selling, and/or offering for sale, within the District of Nevada
12 and elsewhere, replica unauthorized hangers under the name “Hang-Gear Tough Heavy Duty
13 Hangers,” utilizing and embodying the Plaintiff’s Patented Design and as disclosed and claimed in
14 the ‘049 Patent, and Plaintiff’s Product Trade Dress (the “Infringing Hangers – Type II”).
15 Exemplary printouts obtained from various websites through which the Infringing Hangers – Type
16 II are sold are attached hereto. See Composite Exhibit H.
17 26. Defendant has engaged in, and it is believed will continue to engage in, a deliberate
18 and willful scheme to trade upon and to misappropriate for itself the vast goodwill represented and
19 symbolized by the Plaintiff’s Product Trade Dress, without Plaintiff’s consent.
20 27. Defendant has engaged in, and it is believed will continue to engage in, a deliberate
21 and willful scheme to infringe upon and utilize the Plaintiff’s Patented Design as disclosed and
22 claimed in the ‘049 Patent, without Plaintiff’s consent.
23 28. Defendant has directly and/or indirectly infringed, and/or has contributed to and/or
24 induced infringement of the ‘049 Patent.
25 29. The acts of Defendant complained of herein constitute willful and intentional
26 infringement of Plaintiff’s Patented Design and the ‘049 Patent in total disregard of Plaintiff’s
27 rights.
28 / / /
5
1 30. Defendant’s unauthorized sales of the Infringing Hangers – Type I and the Infringing
2 Hangers – Type II and related marketing activities commenced long after substantial sales in
3 commerce of authorized goods by Plaintiff embodying Plaintiff’s Patented Design.
4 31. Defendant’s unauthorized sales of the Infringing Hangers – Type I and the Infringing
5 Hangers – Type II and related marketing activities commenced long after substantial sales in
6 commerce of goods by Plaintiff embodying Plaintiff’s Product Trade Dress, and subsequent to the
7 acquisition of rights and secondary meaning in Plaintiff’s Product Trade Dress accruing to Plaintiff.
8 32. The acts of Defendant complained of herein constitute willful and intentional
9 infringement of Plaintiff’s Product Trade Dress and are in total disregard of Plaintiff’s rights.
10 33. Defendant’s use of the Infringing Hangers – Type I and the Infringing Hangers –
11 Type II is designed and calculated to cause confusion, to cause mistake, and to deceive current and
12 prospective customers as to the origin or sponsorship of Defendant’s goods and to falsely cause the
13 consuming public to believe that Defendant’s goods are the goods of Plaintiff, or are sponsored,
14 licensed, authorized, or approved by Plaintiff, all to the detriment of Plaintiff, the trade, and the
15 public.
16 34. Defendant commenced its infringing activities described herein in deliberate,
17 knowing, and wanton disregard of the rights of Plaintiff and to Plaintiff’s irreparable injury, and
18 unless restrained by this Court, said infringing activities will be continued and Plaintiff will continue
19 to suffer great and irreparable injury.
20 COUNT I – DESIGN PATENT INFRINGEMENT:

INFRINGING HANGERS – TYPE I
21
22 35. Plaintiff incorporates herein each and every allegation set forth in Paragraphs 1
23 through 34 as if fully set forth herein.
24 36. Defendant’s aforesaid acts, including the unauthorized manufacture, import, use,
25 sales, and/or offering for sale of goods embodying the design as disclosed and claimed in the ‘049
26 Patent, i.e., the Plaintiff’s Patented Design, including at least the Infringing Hangers – Type I,
27 constitute infringement of the ‘049 Patent, directly and/or under the doctrine of equivalents.
28 / / /
6
1 37. Defendant’s aforesaid acts have deprived Plaintiff of sales that Plaintiff otherwise
2 would have made, entitling Plaintiff to the profits of Defendant in addition to other available
3 remedies.
4 38. Defendant’s aforesaid acts have caused and will cause great and irreparable injury to
5 Plaintiff, and unless said acts are restrained by this Court, they will be continued and Plaintiff will
6 continue to suffer great and irreparable injury.
7 39. Plaintiff has no adequate remedy at law.
8 COUNT II – DESIGN PATENT INFRINGEMENT:

INFRINGING HANGERS – TYPE II
9
12 41. Defendant’s aforesaid acts, including the unauthorized manufacture, import, use,
13 sales, and/or offering for sale of goods embodying the design as disclosed and claimed in the ‘049
14 Patent, i.e., the Plaintiff’s Patented Design, including at least the Infringing Hangers – Type II,
15 constitute infringement of the ‘049 Patent, directly and/or under the doctrine of equivalents.
16 42. Defendant’s aforesaid acts have deprived Plaintiff of sales that Plaintiff otherwise
17 would have made, entitling Plaintiff to the profits of Defendant in addition to other available
18 remedies.
19 43. Defendant’s aforesaid acts have caused and will cause great and irreparable injury to
20 Plaintiff, and unless said acts are restrained by this Court, they will be continued and Plaintiff will
21 continue to suffer great and irreparable injury.

23
COUNT III - FALSE DESIGNATION, DESCRIPTION, AND REPRESENTATION
24
UNDER THE LANHAM ACT, 15 U.S.C. §1125(a):
25 INFRINGING HANGERS – TYPE I
28 / / /
7
1 46. Subsequent to Plaintiff’s establishment of its rights in Plaintiff’s Product Trade
2 Dress, Defendant intentionally commenced to use in commerce, and upon information and belief,
3 will continue to use in commerce, the Infringing Hangers – Type I, which are a reproduction, copy,
4 and colorable imitation of the Plaintiff’s Product Trade Dress, despite Plaintiff’s prior use thereof
5 and the public recognition thereof, constituting use in commerce of a word, term, name, symbol, or
6 device, or combination thereof, or a false designation of origin, false or misleading description of
7 fact, or a false or misleading representation of fact that is likely to cause confusion, or to cause
8 mistake, or to deceive as to affiliation, connection, or association with Plaintiff, or origin,
9 sponsorship, or approval of Defendant’s goods by Plaintiff.
10 47. Defendant’s aforesaid acts constitute unfair competition, false designation of origin,
11 and/or false description or representation in violation of §43(a) of the Lanham Act, 15 U.S.C.
12 §1125(a).
13 48. Defendant’s aforesaid acts have harmed Plaintiff’s reputation, severely damaged
14 Plaintiff’s goodwill, and upon information and belief, have diverted sales from Plaintiff.
15 49. Defendant’s aforesaid acts have caused and will continue to cause great and
16 irreparable injury to Plaintiff, and unless said acts are restrained by this Court, they will be
17 continued and Plaintiff will continue to suffer great and irreparable injury.
19 COUNT IV - FALSE DESIGNATION, DESCRIPTION, AND REPRESENTATION

UNDER THE LANHAM ACT, 15 U.S.C. §1125(a):
20 INFRINGING HANGERS – TYPE II
23 52. Subsequent to Plaintiff’s establishment of its rights in Plaintiff’s Product Trade

24 Dress, Defendant intentionally commenced to use in commerce, and upon information and belief,
25 will continue to use in commerce, the Infringing Hangers – Type II, which are a reproduction, copy,
26 and colorable imitation of the Plaintiff’s Product Trade Dress, despite Plaintiff’s prior use thereof
27 and the public recognition thereof, constituting use in commerce of a word, term, name, symbol, or
28 device, or combination thereof, or a false designation of origin, false or misleading description of
8
1 fact, or a false or misleading representation of fact that is likely to cause confusion, or to cause
2 mistake, or to deceive as to affiliation, connection, or association with Plaintiff, or origin,
3 sponsorship, or approval of Defendant’s goods by Plaintiff.
4 53. Defendant’s aforesaid acts constitute unfair competition, false designation of origin,
5 and/or false description or representation in violation of §43(a) of the Lanham Act, 15 U.S.C.
6 §1125(a).
7 54. Defendant’s aforesaid acts have harmed Plaintiff’s reputation, severely damaged
8 Plaintiff’s goodwill, and upon information and belief, have diverted sales from Plaintiff.
9 55. Defendant’s aforesaid acts have caused and will continue to cause great and
10 irreparable injury to Plaintiff, and unless said acts are restrained by this Court, they will be
11 continued and Plaintiff will continue to suffer great and irreparable injury.
13 COUNT V - COMMON LAW TRADE DRESS INFRINGEMENT

OF PRODUCT, UNFAIR COMPETITION AND
14 DECEPTIVE TRADE PRACTICES UNDER N.R.S. § 598.0915:
15 INFRINGING HANGERS – TYPE I
57. Plaintiff incorporates herein each and every allegation set forth in Paragraphs 1
16
through 34 as if fully set forth herein.
17
58. Defendant’s aforesaid acts with respect to the Infringing Hangers – Type I constitute
18
infringement, misappropriation, false representation as to affiliation, misuse of Plaintiff’s Product
19
Trade Dress, unfair competition, and unjust enrichment of Defendant; all in violation of Plaintiff’s
20
rights at common law and under the law of the State of Nevada.
21
59. Defendant’s acts have harmed Plaintiff’s reputation, severely damaged Plaintiff’s
22
goodwill, and upon information and belief, have diverted sales from Plaintiff.
23
60. Defendant’s aforesaid acts have caused and will continue to cause great and
24
irreparable injury to Plaintiff, and unless said acts are restrained by this Court, they will be
25
continued and Plaintiff will continue to suffer great and irreparable injury.
26
61. Plaintiff has no adequate remedy at law.
27
///
28
9
COUNT VI - COMMON LAW TRADE DRESS INFRINGEMENT

1 OF PRODUCT, UNFAIR COMPETITION AND
DECEPTIVE TRADE PRACTICES UNDER N.R.S. § 598.0915:
2
INFRINGING HANGERS – TYPE II
3
62. Plaintiff incorporates herein each and every allegation set forth in Paragraphs 1
4
through 34 as if fully set forth herein.
5
63. Defendant’s aforesaid acts with respect to the Infringing Hangers – Type II constitute
6
infringement, misappropriation, false representation as to affiliation, misuse of Plaintiff’s Product
7
Trade Dress, unfair competition, and unjust enrichment of Defendant; all in violation of Plaintiff’s
8
rights at common law and under the law of the State of Nevada.
9
64. Defendant’s acts have harmed Plaintiff’s reputation, severely damaged Plaintiff’s
10
goodwill, and upon information and belief, have diverted sales from Plaintiff.
11
65. Defendant’s aforesaid acts have caused and will continue to cause great and
12
irreparable injury to Plaintiff, and unless said acts are restrained by this Court, they will be
13
continued and Plaintiff will continue to suffer great and irreparable injury.
14
66. Plaintiff has no adequate remedy at law.
15
PRAYER FOR RELIEF
16
WHEREFORE, Plaintiff respectfully requests that this Court enter:
17
1. That this Court will adjudge that the ‘049 Patent is valid, enforceable, and has been
18
infringed as a direct and proximate result of the acts of Defendant as set forth herein, in violation of
19
Plaintiff’s rights under 35 U.S.C. §1, et seq.
20
2. That Plaintiff’s Product Trade Dress has been infringed as a direct and proximate
21
result of the acts of Defendant as set forth herein, in violation of Plaintiff's rights under the Lanham
22
Act, 15 U.S.C. §1051 et seq., and the common law and under the laws of the State of Nevada.
23
3. That this Court will adjudge that Defendant has competed unfairly with Plaintiff as
24
set forth in this Complaint, in violation of Plaintiff’s rights under the Lanham Act, 15 U.S.C.
25
§1125(a), and the common law.
26
4. That Defendant, and all of its officers, directors, agents, servants, employees,
27
attorneys, successors, and assigns, and all persons in active concert or participation therewith, be
28
10
1 permanently enjoined and restrained from further manufacture, use, sale, offer for sale and/or import
2 of the Infringing Hangers – Type I and the Infringing Hangers – Type II, and all other infringement
3 of the ‘049 Patent.
4 5. That Defendant, and all of its officers, directors, agents, servants, employees,
5 attorneys, successors, and assigns, and all persons in active concert or participation therewith, be
6 permanently enjoined and restrained from further manufacture, use, sale, offer for sale, and import
7 of the Infringing Hangers – Type I and the Infringing Hangers – Type II, and all other designs likely
8 to be confused with or infringe Plaintiff’s Product Trade Dress described herein.
9 6. That Defendant be required to deliver up for destruction all of the Infringing Hangers
10 – Type I and all of the Infringing Hangers – Type II, and other written or printed material in the
11 possession or control of Defendant which embody or bear the Infringing Hangers – Type I and/or
12 the Infringing Hangers – Type II, and all plates, molds, matrices, and other means from making the
13 aforesaid items.
14 7. That Defendant be directed to file with this Court and to serve upon Plaintiff within
15 ten (10) days after service of the injunction issued in this action, a written report, under oath, setting
16 forth in detail the manner of compliance with the above.
17 8. That Plaintiff recover damages adequate to compensate it for the Defendant’s patent
18 infringement, but in no event less than a reasonable royalty for the use made of the Plaintiff’s
19 Patented Design by Defendant, and in addition to the amount of actual damages found, such sums
20 shall be in an amount three (3) times the amount of the actual damages found pursuant to 35 U.S.C.
21 §284.
22 9. That Plaintiff have and recover the profits of Defendant derived from the use of the
23 infringing designs under the ‘049 Patent, pursuant to 35 U.S.C. §289.
24 10. That Plaintiff recover the Defendant’s profits and the damages of Plaintiff arising
25 from Defendant’s acts of trade dress infringement and unfair competition, pursuant to 15 U.S.C.
26 §1117.
27 / / /
28 / / /
11
1 11. That Plaintiff have and recover, pursuant to the laws of the State of Nevada, and
2 common law, in addition to its actual damages, punitive damages in an amount which the Court
3 deems just and proper.
4 12. That Plaintiff have and recover both pre-judgment and post-judgment interest on
5 each and every damage award.
6 13. That the Court find this case to be exceptional and award Plaintiff its reasonable
7 attorney fees incurred in this action, pursuant to 15 U.S.C. §1117, 35 U.S.C. §285, and as otherwise
8 authorized.
9 14. That Plaintiff have and recover its taxable costs and disbursements herein, pursuant
10 to 15 U.S.C. §1117, and as otherwise authorized.

11 15. That the Court retain jurisdiction of this action for the purpose of enabling Plaintiff,
12 Tough Hook, LLC, to apply to the Court at any time for such further orders and interpretation or
13 execution of any order entered in this action; for the modification of any such order for the
14 enforcement or compliance therewith and for the punishment of any violations thereof.
15 16. That Plaintiff have and recover such further relief as the Court may deem just and
16 proper.
17 Dated this 20th day of September, 2018.
18
19
By: /s/ W. West Allen
20
W. WEST ALLEN
21 Nevada Bar. No. 5566
wwa@h2law.com
22 HOWARD & HOWARD ATTORNEYS PLLC
3800 Howard Hughes Parkway, Suite 1000
23 Las Vegas, Nevada 89169
24 MEREDITH F. MENDEZ
MMendez@malloylaw.com
25 JOHN FULTON, JR.
JFulton@malloylaw.com
26 MALLOY & MALLOY
2800 S.W. 3rd Avenue
27 Miami, Florida 33129
28 Attorneys for Plaintiff, Tough Hook, LLC
12
Case 2:18-cv-01827-VCF Document 1-1 Filed 09/20/18 Page 1 of 1
INDEX OF EXHIBITS
EXHIBIT DESCRIPTION
EXHIBIT A United States Design Patent No. D702,049
EXHIBIT B Screenshot of Tough Hook Webpage
EXHIBIT C Image of the Product
EXHIBIT D Botach Dealer Request
EXHIBIT E Botach Purchase Orders
EXHIBIT F Botach Infringing Hanger – Type I
EXHIBIT G Botach Invoice for Order No. NB012418
EXHIBIT H Botach Infringing Hanger – Type II

EXHIBIT A
EXHIBIT B
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UHYHUVLEOHKDQJHUZLWKDFDUU\KDQGOH:DQWWRLQWHJUDWHDFDUU\KDQGOHLQWR\RXUKDQJHU":HKDYH
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EXHIBIT E
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JS 44 (Rev. 11/15) 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 DEFENDANTS

Tough Hook, LLC. Botach, Inc.
(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
W.West Allen, Esq., Howard & Howard Attorneys PLLC, 3800 Howard
Hughes Pkwy, Suite 1000, Las Vegas, NV 89169 (702) 257-1483
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
u 1 U.S. Government u 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State u 1 u 1 Incorporated or Principal Place u 4 u 4
of Business In This State
u 2 U.S. Government u 4 Diversity Citizen of Another State u 2 u 2 Incorporated and Principal Place u 5 u 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
Citizen or Subject of a u 3 u 3 Foreign Nation u 6 u 6

Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only)
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
u 110 Insurance PERSONAL INJURY PERSONAL INJURY u 625 Drug Related Seizure u 422 Appeal 28 USC 158 u 375 False Claims Act
u 120 Marine u 310 Airplane u 365 Personal Injury - of Property 21 USC 881 u 423 Withdrawal u 376 Qui Tam (31 USC
u 130 Miller Act u 315 Airplane Product Product Liability u 690 Other 28 USC 157 3729(a))
u 140 Negotiable Instrument Liability u 367 Health Care/ u 400 State Reapportionment
u 150 Recovery of Overpayment u 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS u 410 Antitrust
& Enforcement of Judgment Slander Personal Injury u 820 Copyrights u 430 Banks and Banking
u 151 Medicare Act u 330 Federal Employers’ Product Liability u 830 Patent u 450 Commerce
u 152 Recovery of Defaulted Liability u 368 Asbestos Personal u 840 Trademark u 460 Deportation
Student Loans u 340 Marine Injury Product u 470 Racketeer Influenced and
(Excludes Veterans) u 345 Marine Product Liability LABOR SOCIAL SECURITY Corrupt Organizations
u 153 Recovery of Overpayment Liability PERSONAL PROPERTY u 710 Fair Labor Standards u 861 HIA (1395ff) u 480 Consumer Credit
of Veteran’s Benefits u 350 Motor Vehicle u 370 Other Fraud Act u 862 Black Lung (923) u 490 Cable/Sat TV
u 160 Stockholders’ Suits u 355 Motor Vehicle u 371 Truth in Lending u 720 Labor/Management u 863 DIWC/DIWW (405(g)) u 850 Securities/Commodities/
u 190 Other Contract Product Liability u 380 Other Personal Relations u 864 SSID Title XVI Exchange
u 195 Contract Product Liability u 360 Other Personal Property Damage u 740 Railway Labor Act u 865 RSI (405(g)) u 890 Other Statutory Actions
u 196 Franchise Injury u 385 Property Damage u 751 Family and Medical u 891 Agricultural Acts
u 362 Personal Injury - Product Liability Leave Act u 893 Environmental Matters
Medical Malpractice u 790 Other Labor Litigation u 895 Freedom of Information
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS u 791 Employee Retirement FEDERAL TAX SUITS Act
u 210 Land Condemnation u 440 Other Civil Rights Habeas Corpus: Income Security Act u 870 Taxes (U.S. Plaintiff u 896 Arbitration
u 220 Foreclosure u 441 Voting u 463 Alien Detainee or Defendant) u 899 Administrative Procedure
u 230 Rent Lease & Ejectment u 442 Employment u 510 Motions to Vacate u 871 IRS—Third Party Act/Review or Appeal of
u 240 Torts to Land u 443 Housing/ Sentence 26 USC 7609 Agency Decision
u 245 Tort Product Liability Accommodations u 530 General u 950 Constitutionality of
u 290 All Other Real Property u 445 Amer. w/Disabilities - u 535 Death Penalty IMMIGRATION State Statutes
Employment Other: u 462 Naturalization Application
u 446 Amer. w/Disabilities - u 540 Mandamus & Other u 465 Other Immigration
Other u 550 Civil Rights Actions
u 448 Education u 555 Prison Condition
u 560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
u 1 Original u 2 Removed from u 3 Remanded from u 4 Reinstated or u 5 Transferred from u 6 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation
(specify)
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
35 United States Code et seq
VI. CAUSE OF ACTION Brief description of cause:
Patent Infringement
VII. REQUESTED IN u CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: u Yes u No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
09/19/2018 /s/ W. West Allen
FOR OFFICE USE ONLY
RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT

for the
District
__________ of Nevada
District of __________
TOUGH HOOK, LLC. )

)
)
)
Plaintiff(s) )
)
v. Civil Action No.
)
BOTACH, INC. )
)
)
)
Defendant(s) )
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) BOTACH, INC., c/o IRIS BOTACH, 4775 W. HARMON AVE., LV, NV 89103
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 plaintiff’s attorney,
whose name and address are: W. West Allen, Esq, Howard & Howard Attorneys PLLC, 3800 Howard Hughes
Parkway, Suite 1000, Las Vegas NV 89169
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
AO 440 (Rev. 06/12) 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) ; or
’ I left the summons at the individual’s 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 individual’s last known address; or
’ I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)
on (date) ; or
’ I returned the summons unexecuted because ; or
’ Other (specify):
.
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:
Server’s signature
Printed name and title
Server’s address
Additional information regarding attempted service, etc:
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Tough Hook v. Botach - Complaint

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Tough Hook v. Botach - Complaint

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Case 2:18-cv-01827-VCF Document 1 Filed 09/20/18 Page 1 of 12

7 MEREDITH F. MENDEZ (will comply with LR IA 11-2 within 45 days)

2800 S.W. 3rd Avenue

14 UNITED STATES DISTRICT COURT

3 Vegas, NV, 89103.

4 JURISDICTION AND VENUE

6 States, 35 U.S.C. §1, et seq., for design patent infringement.

9 infringement and unfair competition.

13 and 15 U.S.C. §1121.

14 7. Upon information and belief, personal jurisdiction is proper in that:

15 a. Defendant’s state of residence is Nevada, the state where Defendant is

17 b. Defendant has operated, conducted, engaged in, or carried on a business

21 Nevada, including the infringement set forth herein; or

23 state, and the District of Nevada.

27 action is situated therein.

1 9. Venue is also proper under 28 U.S.C. §1400(b) because Defendant’s state of

2 residence is Nevada, the state where Defendant is incorporated.

6 line of reversible hangers under the trademark “TOUGH HOOK.”

8 develop goodwill in its exclusive and innovative “TOUGH HOOK” hanger.

9 PLAINTIFF’S PATENT AND TRADE DRESS RIGHTS

13 “Plaintiff’s Patented Design”). See Exhibit A.

17 Hanger is covered and protected by US Patent D702049.” See Exhibit B.

19 and work and trade dress of Plaintiff.

25 Dress”). See Exhibit C.

28 been continuous since its inception.

4 including the District of Nevada.

8 goods from those of others.

9 DEFENDANT’S INFRINGING ACTIONS

13 website located at www.tough-hook.com. See Exhibit D.

16 Orders to Plaintiff which were generated by Defendant. See Exhibit E.

18 “TOUGH HOOK” hangers to Defendant as a result of a dispute regarding payment.

24 Hangers,” (the “Infringing Hangers – Type I”). See Composite Exhibit F.

26 Duty Equipment Hangers” advertised on Defendant’s website were an infringement of Plaintiff’s

2 i.e., the Infringing Hangers – Type I, from its website.

16 II are sold are attached hereto. See Composite Exhibit H.

19 symbolized by the Plaintiff’s Product Trade Dress, without Plaintiff’s consent.

22 claimed in the ‘049 Patent, without Plaintiff’s consent.

24 induced infringement of the ‘049 Patent.

3 commerce of authorized goods by Plaintiff embodying Plaintiff’s Patented Design.

16 34. Defendant commenced its infringing activities described herein in deliberate,

19 to suffer great and irreparable injury.

20 COUNT I – DESIGN PATENT INFRINGEMENT:

6 continue to suffer great and irreparable injury.

7 39. Plaintiff has no adequate remedy at law.

8 COUNT II – DESIGN PATENT INFRINGEMENT:

11 through 34 as if fully set forth herein.

21 continue to suffer great and irreparable injury.

22 44. Plaintiff has no adequate remedy at law.

27 through 34 as if fully set forth herein.

1 46. Subsequent to Plaintiff’s establishment of its rights in Plaintiff’s Product Trade

6 device, or combination thereof, or a false designation of origin, false or misleading description of

8 mistake, or to deceive as to affiliation, connection, or association with Plaintiff, or origin,

9 sponsorship, or approval of Defendant’s goods by Plaintiff.

18 50. Plaintiff has no adequate remedy at law.

19 COUNT IV - FALSE DESIGNATION, DESCRIPTION, AND REPRESENTATION

23 52. Subsequent to Plaintiff’s establishment of its rights in Plaintiff’s Product Trade

28 device, or combination thereof, or a false designation of origin, false or misleading description of

2 mistake, or to deceive as to affiliation, connection, or association with Plaintiff, or origin,

3 sponsorship, or approval of Defendant’s goods by Plaintiff.

12 56. Plaintiff has no adequate remedy at law.

13 COUNT V - COMMON LAW TRADE DRESS INFRINGEMENT

COUNT VI - COMMON LAW TRADE DRESS INFRINGEMENT

3 of the ‘049 Patent.

8 to be confused with or infringe Plaintiff’s Product Trade Dress described herein.

2 $W