UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS ------------------------------------------------------GOLDBLATT INDUSTRIES, LLC, Plaintiff, v. MENARD, INC. Defendant.

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Civil Action No.

11-2405-JTM-DJW

COMPLAINT FOR TRADE DRESS INFRINGEMENT, PATENT INFRINGEMENT AND UNFAIR COMPETITION Jury Trial Demanded

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Plaintiff, Goldblatt Industries, LLC, by and through its undersigned attorneys, alleges as follows: NATURE OF THE ACTION 1. This is an action for injunctive relief and damages for patent infringement under

the United States Patent Law 35 U.S.C. 271 et. seq, for trade dress infringement under the Lanham Act , 15 U.S.C. 1125 et seq., and for unfair competition under state law. PARTIES 2. Plaintiff, Goldblatt Industries, LLC (Goldblatt), is a limited liability company

duly organized and existing under the laws of the State of Kansas with its principal place of business at 15785 South Keeler Terrace, Oleathe, Kansas, 66062. Goldblatt is a tool company that specializes in designing, supplying and selling high quality hand tools for concrete and masonry, painting, tile and drywall. 3. Defendant, Menard, Inc., is a corporation duly organized and existing under the

laws of the state of Wisconsin, having its principal place of business at 4777 Menard Drive, Eau

Claire, Wisconsin 54703. Menards is a home improvement retail chain with stores in 13 states including Kansas, and a national online retail business through its website www.menards.com.

JURISDICTION AND VENUE 4. This Court has exclusive jurisdiction pursuant to 28 U.S.C. 1331 and 1338 in

that the Complaint states a claim based upon federal questions relating to patents and relating to trademark infringement and unfair competition under the Lanham Act. This Court also has jurisdiction under 28 U.S.C. 1332 because this action is between citizens of different states and the amount in controversy exceeds $75,000.00, exclusive of interest and costs. This Court has supplemental jurisdiction over the state claims alleged herein under 28 U.S.C. 1367(a). 5. This Court has personal jurisdiction over Defendant because Defendant operates

retail stores in this District and has otherwise conducted business and commercial activities in this District and elsewhere in the United States, and committed acts of infringement in this District and elsewhere in the United States. 6. Venue is proper in this District pursuant to 28 U.S.C. 1391(b) and (c) and

1400(b), since Goldblatt resides in this District, Defendant conducts business in this District, a substantial part of the events or omissions giving rise to these claims occurred in this District, and Defendant has committed acts of infringement in this District and has a regular and established place of business in this District. GENERAL ALLEGATIONS 7. Goldblatt produces high quality hand tools for use with concrete and masonry,

paint, drywall and tile. Goldblatt's tools are sold to the consuming public primarily through home improvement and hardware retailers such as Defendant.

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Goldblatt is the owner by assignment from its predecessor of certain patents for

the ornamental appearance of tool handles. These patents include United States Patent No. D506,658S issued on June 28, 2005 (the 658 Patent), a copy of which is attached hereto as Exhibit 1 and incorporated herein, and United States Patent No. D545,659S issued on July 3, 2007 (the 659 Patent), a copy of which is attached hereto as Exhibit 2 and incorporated herein (collectively, the '658 Patent and the '659 Patent are referred to herein as "the Patents"). 9. Several years ago, Goldblatt redesigned the tool handles of its products with the

specific intent of creating a distinctive, unique and recognized handle design and color configuration that consumers would immediately associate with a single source to identify genuine Goldblatt tools. 10. Goldblatt's trade dress (the "Trade Dress") consists of a handle design on its tools

that incorporates a distinctive black and red color combination with a unique look and feel that serves to identify Goldblatt as their point of origin. The Trade Dress consists of the image and overall appearance of these black and red tool handles. In particular, the Trade Dress features a primarily black handle with red trim, typically in the form of a four-armed red "spider" pattern radiating from a flat red junction the top of the handle outward to either side of either end of the black handle. In addition, the Trade Dress may include a distinctive series of repeating arced indentations of progressively smaller size at the top front of the handle, and may further include a silver tip with a smooth periphery and a textured end with intersecting grooves that create a grid pattern. 11. Goldblatt supplied tools bearing the Trade Dress to Defendant for several years,

through approximately February 2011. In February, 2011, Defendant informed Goldblatt that it would no longer be buying Goldblatt tools, and would be producing its own line of private label

tools. Goldblatt subsequently met with and advised Defendant's representatives that many of its tools were covered by intellectual property rights, including the Patents and the Trade Dress. 12. Beginning in approximately April, 2011, Defendant began offering to the public

tools bearing the Trade Dress under the Mud Boss label. These products are not affiliated with Goldblatt and are being produced and sold in the United States, including this District, without Goldblatt's authorization or consent. Examples of Defendant's products at issue and the

corresponding Goldblatt product bearing the Trade Dress as shown below:

13.

Beginning in approximately April 2011, Defendant began offering to the public

tools that infringe the Patents. These products are sold under the "Master Force" brand, are not affiliated with Goldblatt and are being produced and sold in the United States, including this

District, without Goldblatt's authorization or consent. A few examples of Defendant's products that use the patented designs are shown below, adjacent to the corresponding patent drawing:

US D 545,659S Figure 1

D545,659S Figure 14

D545,659S Figure 35

D545,659S Figure 40

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On June 23, 2011, Goldblatt's counsel advised Defendant in writing that

Defendant was selling products that infringe the Patents and the Trade Dress, and demanded that Defendant cease and desist from doing so. Defendant failed and refused to respond to this demand, and continues to sell products that infringe Goldblatt's rights. FIRST CLAIM FOR RELIEF Patent Infringement 15. 16.
Goldblatt restates, realleges and incorporates by reference the foregoing allegations. Since at least April, 2011, Defendant, and/or its agents, has been manufacturing,

distributing, marketing and selling tools throughout various portions of the United States, including in the state of Kansas, that infringe one or more of the Patents. Defendant currently
sells its infringing products through its Menards home improvement stores under the brand name Master Force. 17. In addition, Defendant currently offers for sale, and on information and belief has

sold, infringing products on the Internet, including sales on its www.menards.com website. 18. The ordinary observer with knowledge of the prior art, giving such attention to the

designs as a purchaser would give, is likely to mistake the infringing products designs for the designs shown in the Patents.

19.

Defendant's infringing designs are literally the same and/or similar and/or equivalent

in design and/or effect to the Patents. 20.

Despite having been placed on notice of infringement, Defendant continues to make,

distribute, advertise, market and sell its infringing products. 21.

Defendant's infringement of the Patents is deliberate, willful, and intentional and in

bad faith and continues despite Defendant's full knowledge of the Patents.

22.

As a direct and proximate result of Defendants infringement of the Patents,

Goldblatt has suffered damages in an amount to be determined at trial. 23. Defendants infringement continues to date and will continue unless Defendant is

enjoined by the Court. 24. Defendants open and notorious infringement of the Patents has fundamentally

undermined Goldblatt's ability to continue to successfully commercialize the patented designs it owns or to otherwise enjoy the benefit of its exclusive federally issued patent rights. Defendants express unwillingness to recognize the Patents and its apparent intention to ignore Goldblatts rights in and to the Patents have and will continue to fundamentally undermine the value of the Patents for which Goldblatt has no adequate remedy at law. 25.
Goldblatt has suffered, and will continue to suffer, irreparable harm and damage

unless preliminary and final injunctions are issued enjoining Defendant from infringing upon the Patents. SECOND CLAIM FOR RELIEF Trade Dress Infringement
26. Goldblatt restates, realleges and incorporates by reference the foregoing allegations.

27.

The Trade Dress is non-functional and serves to distinguish Goldblatt's tools from

competitive products. It appears on many Goldblatt tools. The Trade Dress has no utilitarian advantage and costs more to manufacture than a product that does not bear the Trade Dress. Until Defendant's recent infringement, the Trade Dress was used exclusively on Goldblatt sourced products, and no other source used the same or any substantially similar tool handle design.

28.

Through continuous exclusive use of the Trade Dress on tools for several years,

the Trade Dress has acquired distinctiveness among relevant consumers as an identifying symbol of genuine Goldblatt tools.
29.

Defendant sold genuine Goldblatt tools bearing the Trade Dress from 2008

through February, 2011, and is now trading on Goldblatt's goodwill and reputation by offering, advertising, promoting and selling to consumers unauthorized non-Goldblatt tools bearing exact replicas of the Trade Dress.
30.

Defendant's conduct has caused and is likely to continue to cause confusion, or to

cause mistake, or to deceive as to the affiliation, connection or association of Defendant's Mud Boss tools with Goldblatt, or as to the origin, sponsorship, or approval of the Mud Boss tools by Goldblatt, in violation of section 43(a) of the Lanham Act, 15 U.S.C. 1125.
31.

On information and belief, Defendant copied the Trade Dress with the intent of

trading on the goodwill developed by Goldblatt in establishing the Trade Dress. Defendant's intentional copying is further evidence by the striking similarity of the appearance and design of the handles of the Mud Boss and Goldblatt products. In addition, the parties' prior relationship, including Defendant's sale of Goldblatt products bearing the Trade Dress for several years, demonstrates an intent to pass off its Mud Boss products as the same Goldblatt sourced products that Defendant previously carried. Defendant continued to trade on Goldblatt's goodwill through its deliberate and knowing decision to carry, and to continue to carry, unauthorized versions of the same tools bearing the same Goldblatt Trade Dress.
32.

Defendant's conduct as described above is knowing and willful, and has caused

and will continue to cause source or affiliation confusion among consumers and dealers of these tools.

33.

Defendant's conduct has caused and, unless enjoined by the Court, will continue

to cause Goldblatt irreparable harm to its brand, for which Goldblatt has no adequate remedy at law.
34.

Defendant's conduct has injured and caused, and will continue to threaten and

cause, substantial injury and damage to Goldblatt. THIRD CLAIM FOR RELIEF Unfair Competition
35. 36. Goldblatt restates, realleges and incorporates by reference the foregoing allegations. Defendant has displayed, distributed, promoted, sold and used products bearing

Goldblatt's Trade Dress, thereby usurping the goodwill and business reputation of Goldblatt by unfair means. These activities constitute unfair competition. 37. Defendant has engaged in unfair competition willfully, in bad faith and with

malicious intent to injure Goldblatt by unfairly and unlawfully diverting sales of genuine Goldblatt products and deceiving consumers as to the source or affiliation of its infringing products. 38. Goldblatt has sustained, and will continue to sustain, substantial injuries, loss and

damage to its business by means of Defendant's unfair competition. 39. Unless restrained and enjoined, Defendant will continue to engage in unfair

competition that injures Goldblatt. 40. Unless restrained and enjoined, Defendant's acts have caused and will continue to

cause irreparable harm to Goldblatt, for which Goldblatt has no adequate remedy at law.

WHEREFORE, Goldblatt pray for judgment against Defendant as follows: A. That Defendant and all those acting under its control or in concert with Defendant, be preliminarily enjoined from all further manufacturing, use, marketing, distribution, sale, orders to sell and importation of any tools that infringe the Trade Dress, the '658 Patent or the '659 Patent;

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B.

That Goldblatt be awarded its actual damages in an amount established by the proof at trial;

C.

That Defendant's infringement and other wrongful acts herein be determined to be deliberate, willful and in conscious disregard of Goldblatt's rights under 15 U.S.C. 1117 and 1125(A), under 35 U.S.C. 284 and at common law;

D.

That Defendant be required to account to Goldblatt for all sales, revenues and profits received or derived by Defendant from the manufacture, marketing, sale, offering for sale, and distribution of products bearing or using any copy or colorable imitation of the Trade Dress;

E. F.

That Goldblatt be awarded Defendant's profits after an accounting; That, as a result of Defendant's willful and malicious conduct, the Court award Goldblatt treble or punitive damages, as a applicable;

G.

That the Court award Goldblatt pre-judgment interest and post-judgment interest and costs as allowed by law;

H.

That the Court enter a permanent injunction against Defendant and its officers, employees, agents, representatives, successors, subsidiaries and affiliates, and anyone else acting under Defendant's control or in concert with it, from using or reproducing any copy or colorable imitation of the Trade Dress and further directing that Defendant destroy all materials bearing or using any copy or colorable imitation of the Trade Dress;

I.

That this case be deemed exceptional under 15 U.S.C. 1117(a) and that Goldblatt be awarded all its litigation expenses, including without limitation, its reasonable attorneys' fees; and

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J.

That the Court award Goldblatt such other relief as it deems proper and just under the circumstances and proof. DEMAND FOR JURY TRIAL

Pursuant to Fed. R. Civ. P. 38, Plaintiff Goldblatt demands a trial by jury of all issues triable of right to a jury and raised by the pleadings in this action. Respectfully submitted this 21st day of July, 2011.

LATHROP & GAGE LLP

By: /s/ Robert J. Lambrechts Robert J. Lambrechts (KS. 16542 ) 10852 Mastin Blvd. Building 82, Suite 1000 Overland Park, KS 66210-1669 Phone: (913) 451-5100 Fax: (913) 451-0875 e-mail: rlambrechts@lathropgage.com

Stephen J. Horace (MO 33000, CO 32961) LATHROP & GAGE LLP 4845 Pearl East circle, Suite 201 Boulder, CO 80301 Phone: (720) 93103024 Fax: (720) 931-3002 e-mail: shorace@lathropgage.com

Attorneys for Goldblatt Industries, LLC

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