Case 3:11-cv-00637-UN2 Document 1 Filed 04/06/11 Page 1 of 12

ostJS 44 (Rev. 12/07) CIVIL COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service ofpleadings 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 mitiating
the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)
I. (a) PLAINTIFFS DEFENDANTS
Alum-A-Pole Corporation Badger Ladder, Inc.

(b) County of Residence of First Listed Plaintiff Lackawanna County, PA County of Residence of First Listed Defendant Brown County, WI

(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE
LAND INVOLVED.

(CLI Attomey' s (Firm Name Address and Telephone Number) Attomeys Known)
Gross cGinley, LLP, 33 South Seventh Street, P.O. Box 4060, Allentown,
Pennsylvania 18105

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)
01 U.S. Govemment X 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Govenunent Not a Party) Citizen of This State 01 01 Incorporated or Principal Place g 4 04
of Business In This State

02 U.S. Govemment 0 4 Diversity Citizen of Another State 02 0 2 Incorporated and Principal Place 0 5 IN 5
Defendant of Business In Another State
(Indicate Citizenship of Parties in Item III)
Citizen or Subject of a 03 0 3 Foreign Nation 06 06
Foreign countw
IV. NATURE OF SUIT Place an "X" in One Box Onl

0 110 Insurance
0 120 Marine
0 130 Miller Act
0 140 Negotiable Instrument
0 150 Recovery of Overpayment
& Enforcement ofJudgment
0 151 Medicare Act
0 152 Recovery of Defaulted
Student Loans
(Excl. Veterans)
0 153 Recovery of Overpayment
of Veteran's Benefits
0 160 Stockholders' Suits
0 190 Other Contract
0 195 Contract Product Liability
n 196 Franchise
0 210 Land Condemnation
0 220 Foreclosure
0 230 Rent Lease & Ejectment
0 240 Torts to Land
0 245 Tort Product Liability
0 290 All Other Real Property
PERSONAL INJURY PERSONAL INJURY 0 610 Agriculture 0 422 Appeal 28 USC 158 Cl 400 State Reapportionment
0 310 Airplane 0 362 Personal Injury - 0 620 Other Food & Drug 0 423 Withdrawal 410 Antitrust
0 315 Airplane Product Med. Malpractice 0 625 Drug Related Seizure 28 USC 157 Cl 430 Banks and Banking
Liability 0 365 Personal Injury - of Property 21 USC 881 Cl 450 Commerce
0 320 Assault, Libel & Product Liability 0 630 Liquor Laws • Cl 460 Deportation
Slander 0 368 Asbestos Personal 0 640 R.R. & Truck 0 820 Copyrights Cl 470 Racketeer Influenced and
0 330 Federal Employers' Injury Product 0 650 Airline Regs. 0 830 Patent Corrupt Organizations
Liability Liability 0 660 Occupational 14 840 Trademark Cl 480 Consumer Credit
0 340 Marine PERSONAL, PROPERTY Safety/Health 490 Cable/Sat TV
0 345 Marine Product 0 370 Other Fraud 0 690 Other 810 Selective Service
Liability 0 371 Truth in Lending Cl 850 Securities/Commodities/
0 350 Motor Vehicle 0 380 Other Personal 0 710 Fair Labor Standards 0 861 HIA (1395ff) Exchange
0 355 Motor Vehicle Property Damage Act 0 862 Black Lung (923) Cl 875 Customer Challenge
Product Liability 0 385 Property Damage 0 720 Labor/Mgmt. Relations 0 863 DIWC/DIWW (405(g)) 12 USC 3410
0 360 Other Personal Product Liability 0 730 Labor/Mgmt.Reporting 0 864 SSID Title XVI Cl 890 Other Statutory Actions
Idu & Disclosure Act 0 865 RSI 405 891 Agricultural Acts
0 740 Railway Labor Act Cl 892 Econornic Stabilization Act
0 441 Voting 0 510 Motions to Vacate 0 790 Other Labor Litigation 0 870 Taxes (U.S. Plaintiff 893 Environmental Matters
0 442 Employment Sentence 0 791 Empl. Ret. Inc. or Defendant) 894 Energy Allocation Act
0 443 Housing/ Habeas Corpus: Security Act 0 871 IRS—Third Party Cl 895 Freedom of Information
Accommodations 0 530 General 26 USC 7609 Act
0 444 Welfare 0 535 Death Penalty Cl 900Appeal of Fee Determination
0 445 Amer. w/Disabilities - 0 540 Mandamus & Other 462 Naturalization Application Under Equal Access
Employment 0 550 Civil Rights 0 463 Habeas Corpus - to Justice
Cl 446 Amer. w/Disabilities - 0 555 Prison Condition Alien Detainee 950 Constitutionality of
Other 0 465 Other Immigration State Statutes
0 440 Other Civil Rights Actions

V. ORIGIN (Place an "X" in One Box Only) Appeal to District

Cil 1 Original 11 2 Removed from J 3 Remanded from 4 Reinstated or El 5 Transferred from 6Multidistrict 7 Judge from
Proceeding State Court Appellate Court Reopened another district Litigation Magistrate
(specifv) Judgment
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unle,ss diversity):
Section 32 of the Lanham Act. 15 U.S.C. 1114: Section 43(a) of the Lanham Act. 15 U.S.C. 1125
VI. CAUSE OF ACTION Brief description of cause:
Trademark infrinaement and unfair competition
VH. REQUESTED IN lJ CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER F.R.C.P. 23 JURY DEMAND: 0 Yes 1:4 No
VIII. RELATED CASE(S)
(See instructions).
IF ANY JUDGE DOCKET NUMBER

DATE SIGNA R OF ATTOR Y OF RECORD

04/06/2011
7e. elf
FOR OFFICE USE ONLY

RECEIPT 4 AMOUNT APPLYING IFP JUDGE MAG. JUDGE
 Case 3:11-cv-00637-UN2 Document 1 Filed 04/06/11 Page 2 of 12

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

ALUM-A-POLE CORPORATION, : Civil Action No.

Plaintiff,

V.
COMPLAINT

BADGER LADDER, INC.,

Defendant.
Document Electronically Filed

Plaintiff Alum-A-Pole Corporation ("Alum-A-Pole"), by its undersigned

attorneys, as and for its complaint against defendant Badger Ladder, Inc.

("Badger"), says:

PARTIES

1. Plaintiff Alum-A-Pole is a corporation, organized under the

laws of the State of New York, that maintains its principal place of business at

1011 Capouse Avenue, Scranton, Pennsylvania 18509.

2. Defendant Badger is a Wisconsin corporation that maintains its

principal place of business at 2040 S. Ashland Avenue, Green Bay, Wisconsin

54304.
 Case 3:11-cv-00637-UN2 Document 1 Filed 04/06/11 Page 3 of 12

JURISDICTION

3. This is an action for infringement of a federally registered

trademark under section 32 of the Lanham Act, 15 U.S.C. §1114, and unfair

competition under section 43(a) of the Lanham Act, 15 U.S.C. §1125.

4. This Court has jurisdiction over this action pursuant to 28

U.S.C. §§1331 and 1338(a) and (b), as well as 28 U.S.C. § 1332 as there is

complete diversity of citizenship and the amount in controversy exceeds $75,000,

exclusive of interest and costs.

BACKGROUND

5. Plaintiff Alum-A-Pole is engaged in the business of, inter alia,

the design, manufacture, and sale of scaffolding and scaffolding jacks.

6. Of relevance here, Alum-A-Pole has made, sold, and promoted

a line of scaffolding jacks under the trademark PRO-JACK for more than 25 years.

Alum-A-Pole's PRO-JACK trademark is also the subject of United States

Trademark Registration No. 3,893,334. A true copy of this Registration is attached

as Exhibit A.

7. Since introducing PRO-JACK to the marketplace, Alum-A-Pole

has expended substantial sums to advertise and promote its trademarked PRO-

JACK products nationally and regionally through trade publications, newspapers,

trade show appearances, direct mail, the Internet, and special promotions.

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8. As a result of the extensive advertising and promotion of Alum-

A-Pole's PRO-JACK products over many years, Alum-A-Pole's PRO-JACK

trademark has become well known in the trade as an indicator of high quality

scaffolding jacks that originate with Alum-A-Pole. This mark also distinguishes

Alum-A-Pole's scaffolding jacks fi-om those of others, and is a valuable asset of

Alum-A-Pole.

DEFENDANT'S TRADEMARK
INFRINGEMENT AND UNFAIR COMPETITION

9. Defendant Badger is a former customer of Alum-A-Pole. As

such, defendant Badger is fully aware of Alum-A-Pole's products and trademarks,

including the PRO-JACK mark.

10. To Alum-A-Pole's knowledge, defendant Badger first

misappropriated and wrongfully traded on Alum-A-Pole's PRO-JACK mark in

early 2010 in connection with a "bait and switch" scheme whereby Badger

advertised the sale of PRO-JACK products on its website but delivered pump jacks

manufactured by others.

11. Alum-A-Pole promptly protested defendant Badger's acts of

trademark infringement and unfair competition in April 2010. Defendant Badger,

in tum, immediately deleted all references to PRO-JACK fi-om its website and

promised to cease its infi-ingement.

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12. That promise proved to be fleeting at best. In or about January

2011, defendant Badger published a sales brochure or flyer that is replete with

references to PRO-JACK pump jacks, braces, and benches, as evidenced by the

cover page of this flyer, a copy of which is attached as Exhibit B.

13. Defendant Badger's use of PRO-JACK is wholly without the

consent of Alum-A-Pole, and is part of a deliberate course of action to trade on

Alum-A-Pole's mark and good will that has caused Alum-A-Pole to sustain

irreparable harm and damages.

14. Defendant's unauthorized use of PRO-JACK for the same and

related and products associated with the trademark of Alum-A-Pole has caused, is

causing, will continue to cause, and is likely to cause confusion, mistake, and/or

deception of customers and potential customers of the parties that some affiliation,

connection, or association exists between defendant's products and those of Alum-

A-Pole, or that defendant's products originate or are sponsored, endorsed, or

approved by Alum-A-Pole, or are in some manner related to Alum-A-Pole.

15. Defendant's unauthorized use of a confusingly similar

trademark falsely designates the origin of defendant's products, and falsely and

misleadingly describes and represents facts with respect to defendant and its

products, and enables it to palm off its products on an unsuspecting public as those

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 Case 3:11-cv-00637-UN2 Document 1 Filed 04/06/11 Page 6 of 12

of Alum-A-Pole and to trade on and receive the benefit and good will of the

trademark of Alum-A-Pole.

16. Defendant's unauthorized use of a confusingly similar mark

interferes with Alum-A-Pole's ability to control the nature and quality of goods

provided under its trademark, thus placing the valuable reputation and good will of

Alum-A-Pole in the hands of defendant over which Alum-A-Pole has no control.

17. Unless defendant's unauthorized use of a confusingly similar

trademark is restrained by this Court, defendant will continue to cause irreparable

injury to Alum-A-Pole and to the public for which there is no adequate remedy at

law.

18. Defendant's acts of infringement and unfair competition have

been made with full knowledge and conscious disregard of the rights of Alum-A-

Pole, and are willful, intentional, and deliberate acts, in bad faith, with the intent to

trade on the goodwill of the trademark of Alum-A-Pole.

COUNT I
FEDERAL TRADEMARK INFRINGEMENT

19. Alum-A-Pole repeats the allegations of paragraphs 1-18 as if

fully set forth here.

20. The acts of defendant as aforesaid constitute infringement of

Alum-A-Pole's registered trademark in violation of § 32 of the Lanham Act, 15

U.S.C. § 1114.
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COUNT II
FEDERAL UNFAIR COMPETITION

21. Alum-A-Pole repeats the allegations of paragraphs 1-20 as if

fully set forth here.

22. The acts of defendant as aforesaid constitute unfair competition

in violation of § 43(a) of the Lanham Act, 15 U.S.C. § 1125.

WHEREFORE, plaintiff Alum-A-Pole prays for judgment in its favor

and against defendants, as follows:

a. That defendant, including, as appropriate, its officers, agents,

employees, and all acting in concert, participation, or combination with defendant,

be temporarily restrained and preliminarily and permanently enjoined from

infiinging Alum-A-Pole's federally registered and common law trademark, and

from directly or indirectly using the mark PRO-JACK, or any other mark, word, or

name similar to PRO-JACK that is likely to cause confusion or mistake, or to

deceive the public as to the origin or sponsorship of products of Alum-A-Pole.

b. That defendant be ordered to deliver to Alum-A-Pole or to

impound during the pendency of this action, any labels, signs, prints, packages, and

advertisements bearing the name PRO-JACK, or any variation thereof, in the

possession or control of defendant, and to deliver up for destruction all infringing

copies, and all plates, molds and other matter for making such infringing copies in

accordance with 15 U.S.C. § 1118;

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 Case 3:11-cv-00637-UN2 Document 1 Filed 04/06/11 Page 8 of 12

c. That defendant be ordered to account to Alum-A-Pole for any

and all profits derived from the sale of any products or services under the mark

PRO-JACK, and variations thereof, and that an award of profits be increased as the

Court finds to be just under the circumstances;

d. That defendant be ordered to pay over to Alum-A-Pole all

damages sustained by Alum-A-Pole by reason of its infiingement and unfair

competition, and that said damages be trebled;

e. For an award of prejudgment and post-judgment interest;

f. For an award of reasonable attorneys' fees and other expenses

incurred by Alum-A-Pole in the pursuit of this action; and

g. For costs of suit and such further relief as this Court may deem

just and appropriate.

Respectfully submitted,

GROSS McGINLEY, LLP

By: s/Loren L. Speziale

LOREN L. SPEZIALE, ESQUIRE
ATTORNEY ID #306387
Attorney for Plaintiff
33 South Seventh Street
P.O. Box 4060
Allentown, PA 18105-4060
lspeziale@grossmcginley.com
Phone: 610-820-5450
Fax: 610-820-6006
April 6, 2011
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EXHIBIT A
 Case 3:11-cv-00637-UN2 Document 1 Filed 04/06/11 Page 10 of 12

tate0 of anterit4.
e
taniteb ikatto Vatent anb Zrabemarb Offire 0-1

PRO-JACK
Reg. No. 3,893,334 ALUM-A-POLE CORPORATION (NEW YORK CORPORATION)
1011 CAPOUSEAVENUE
Registered Dec. 21, 2010 SCRANTON, PA 18509
Int. Cl.: 8 FOR: MANUALLY OPERATED PUMP JACKS FOR SCAFFOLDING, IN CLASS 8 (U.S. CLS.
23, 28 AND 44).

TRADEMARK PIRST USE 8-0-1985; IN COMMERCE 8-0-1985.

PRINCIML REGISTER THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLA1IvI TO ANY PAR-
TICULAR FONT, STYLE, SIZE, OR COLOR.

SER. NO. 85-027,443, FILED 4-30-2010.

DANIEL CAPSHAW, EXAMININGATTORNEY

04;e174
DireOur uf thc Unitcd Spites rates0-and:114eupulc.Oftice
Case 3:11-cv-00637-UN2 Document 1 Filed 04/06/11 Page 11 of 12

EXHIBIT B
 Case 3:11-cv-00637-UN2 Document 1 Filed 04/06/11 Page 12 of 12

Bacier Distrhatim Centers- Green Bay. WI Ci icao.

fl • Sacramento. CA • Savannah, GA Otlando. FL

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