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MANDOUR & ASSOCIATES, APC JOSEPH A. MANDOUR, III (SBN 188896) BEN T. LILA (SBN 246808) MANDOUR & ASSOCIATES, APC 16870 West Bernardo Drive, Suite 400 San Diego, California 92127 Telephone: (858) 487-9300 Facsimile: (858) 487-9390 jmandour@mandourlaw.com Attorneys for plaintiff, SB DIVERSIFIED PRODUCTS, INC. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

SB DIVERSIFIED PRODUCTS, INC., a California Corporation, Plaintiff, v. MICHAEL MURCHISON, an individual Defendant.

'12CV2328 IEG MDD Civil Case No. _____________________

PLAINTIFF SB DIVERSIFIED PRODUCTS, INC.S COMPLAINT FOR FALSE ADVERTISING, DECLARATORY RELIEF, AND UNFAIR COMPETITION

DEMAND FOR JURY TRIAL

Plaintiff SB DIVERSIFIED PRODUCTS, INC., by and through its counsel, alleges as and for its Complaint as follows: /// ///
PLAINTIFF SB DIVERSIFIED PRODUCTS, INC.S COMPLAINT FOR FALSE ADVERTISING, DECLARATORY RELIEF, AND UNFAIR COMPETITION -1-

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NATURE OF THE ACTION 1. This is an action for false advertising and unfair competition under the Lanham Act, 15 U.S.C. 1051, et seq., declaratory relief arising under the Patent Act of the United States, 35 U.S.C. 100, et seq. and the Declaratory Judgment Act, 28 USC 2201, et seq. and related claims under federal and California law. THE PARTIES 2. Plaintiff SB DIVERSIFIED PRODUCTS, INC. (SBDP) is a corporation, organized and existing under the laws of the State of California, and having a place of business in Vista, California. 3. On information and belief, defendant Michael Murchison (Murchison), is or at all relevant times an individual doing business under the name The Trap Maker with a principal place of business at 10902 Joint Road, Red Bluff, CA 96080. JURISDICTION AND VENUE 4. This court has subject matter jurisdiction over this action under 28 U.S.C. 1331 & 1338, because the suit arises under Section 43(a) of the Lanham Act, 15 U.S.C. 1121 and the patent laws of the United States, 35 U.S.C. 1, et seq., and supplemental jurisdiction of any and all state causes of action under 28 U.S.C. 1367. Further, because this action presents an actual controversy with respect to the infringement of a U.S. patent, the Court may grant the declaratory relief sought pursuant to 28 U.S.C. 2201 and 2202. 5. This court has personal jurisdiction over defendant because defendant transacts business in the Southern District of California by selling its product, inter alia, to Catt Farm and Ranch Supply in Ramona, California. Further, on information and belief, defendant directs business activities toward California through advertisements, promotions, and sales. 6. Venue is proper in this district under 28 U.S.C. 1391, because a

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substantial part of the events or omissions giving rise to the claims herein occurred in this District. FACTS 7. Since September 2005 plaintiff has sold an animal trap product under the name The Squirrelinator. An exemplary photo of The Squirrelinator product is attached hereto as Exhibit A. 8. Defendant Michael Murchison is also in the business of selling an animal trap. Murchison does business as The Trap Maker and sells an animal trap product sold under the name The Black Fox. An exemplary photo of The Black Fox product is attached hereto as Exhibit B. 9. Murchison purports to be the owner and inventor of U.S. Patent 7,866,086 (the 086 patent) issued January 11, 2011. A true and correct copy of the 086 patent is attached hereto as Exhibit C. 10. Beginning at least as early as June 2009, Murchison began contacting plaintiffs customers and distributors. Murchison knowingly began making false and misleading claims regarding plaintiff and plaintiffs product, including without limitation that plaintiffs product: a. infringes Murchisons patent rights; b. exposes plaintiff and its agents to a claim of patent infringement; c. contains lead paint; d. functions poorly by allowing squirrels to escape; e. was copied from Murchisons product; and f. unintentionally traps birds and the Morro Coast Audubon Society should be concerned. 11. For example, Murchison began sending videos via email of plaintiffs products purportedly malfunctioning. Attached hereto as Exhibit D is an email sent by Murchison that attached a video of plaintiffs product supposedly malfunctioning. On information and belief, Murchison modified plaintiffs
PLAINTIFF SB DIVERSIFIED PRODUCTS, INC.S COMPLAINT FOR FALSE ADVERTISING, DECLARATORY RELIEF, AND UNFAIR COMPETITION -3-

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product to mislead the viewer into believing that plaintiffs product did not function properly. 12. Attached hereto as Exhibit E is an email from one of plaintiffs distributors memorializing a conversation with Murchison. In the email, Murchison falsely claims inter alia that he has previously won a claim against VSI (Veterinary Service Inc.). 13. reasons: a. plaintiffs product does not directly or indirectly infringe the 086 patent; b. plaintiffs product lacks an extension end extending exterior to the enclosure as required by the 086 patent; c. plaintiffs product does not contain lead paint; d. plaintiffs product does not unintentionally trap birds; and e. at the time of defendants statements, no judgment had been entered in favor of patentee in the case stylized as Michael Murchison v. Veterinary Service Inc et al., Civil Action No. 2:12cv-01291-DMG-MAN in U.S. District Court, Central District of California (Western Division) nor has Murchison ever obtained any judgment of infringement of the 086 patent against anyone. 14. On information and belief, Murchison individually or though agents has used online websites such as Amazon.com and eBay.com to make false and misleading claims about plaintiffs products in interstate commerce. For example, plaintiff believes that Murchison has posted false reviews against plaintiff and its products with the intent of misleading potential customers. Attached hereto as Exhibit F is a review on Amazon.com of plaintiffs product wherein Murchison makes false claims regarding plaintiffs products to Amazons website visitors. 15. On information and belief, Murchison made the above false and/or Defendants claims are false and misleading for at least the following

PLAINTIFF SB DIVERSIFIED PRODUCTS, INC.S COMPLAINT FOR FALSE ADVERTISING, DECLARATORY RELIEF, AND UNFAIR COMPETITION -4-

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deceptive claims in emails and online knowing them to be untrue for the purpose of harming plaintiff, plaintiffs business, plaintiffs goodwill, and plaintiffs reputation and such claims were made willfully and deliberately and in reckless disregard of plaintiffs rights. 16. On information and belief, Murchison further made the above false and/or deceptive claims to advertise and promote his competing product and such claims were made willfully and deliberately and in reckless disregard of plaintiffs rights. CLAIMS FOR RELIEF First Claim for Relief (False Advertising under the Lanham Act) 17. 18. Plaintiff repeats and incorporates by reference the statements and Defendants publishing of false reviews online, false videos, and allegations in paragraphs 1 to 16 of the Complaint as though fully set forth herein. false statement of facts in emails misrepresents the nature, characteristics, and qualities of plaintiff and plaintiff products constituting false advertising under the Lanham Act. 19. Specifically, defendant falsely claims that plaintiffs product: a. infringes Murchisons patent rights; b. contains lead paint; c. exposes plaintiff and its agents to a claim of patent infringement; d. functions poorly by allowing squirrels to escape; e. was copied from Murchisons product; and f. unintentionally traps birds and the Morro Coast Audubon Society should be concerned. 20. Defendants actions, as set forth herein constitute false advertising in violation of the Lanham Act, 15 U.S.C. 1125(a), all to the damage of plaintiff as previously alleged.
PLAINTIFF SB DIVERSIFIED PRODUCTS, INC.S COMPLAINT FOR FALSE ADVERTISING, DECLARATORY RELIEF, AND UNFAIR COMPETITION -5-

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21.

As a result of defendants improper activities, Plaintiffs have suffered

and continue to suffer substantial injury, including irreparable injury, and damages, including but not limited to loss of sales and profits which would have made but for the false and deceptive advertising by defendant, unless defendant is preliminarily and/or permanently enjoined by this Court. Second Claim of Relief (Unfair Competition) 22. 23. Plaintiff repeats and incorporates by reference the statements and Defendants actions, as set forth above, constitute unfair competition allegations in paragraphs 1 to 21 of the Complaint as though fully set forth herein. in violation of the Lanham Act, 15 U.S.C. 1125(a) and under California common law, all to the damage of plaintiff as previously alleged. Third Claim of Relief (Declaratory Relief under the Declaratory Judgment Act) 24. 25. Plaintiff repeats and incorporates by reference the statements and A ripe, definite, and concrete dispute exists between plaintiff and allegations in paragraphs 1 to 23 of the Complaint as though fully set forth herein. defendant regarding the 086 patent. Additionally, plaintiff disputes defendants accusation of patent infringement. 26. Defendant has taken an affirmative act related to the enforcement of the 086 patent by inter alia publicly accusing plaintiff of patent infringement and contacting plaintiffs customers regarding patent infringement. 27. Additionally, defendant has already filed an action to enforce the 086 against third parties in the action stylized as Michael Murchison v. Veterinary Service Inc et al., Civil Action No. 2:12-cv-01291-DMG-MAN in U.S. District Court, Central District of California (Western Division). 28. Based on the foregoing, a substantial controversy exists between

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parties, each having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. 29. For the reasons herein, plaintiff therefore seeks a declaratory judgment that it does not directly or indirectly, literally or equivalently infringe the 086 patent. Fourth Claim for Relief (Unfair Competition - California Business and Professions Code) 30. 31. Plaintiff repeats and incorporates by reference the statements and Defendants acts, as set forth above, constitute unfair competition as allegations in paragraphs 1 to 29 of the Complaint as though fully set forth herein. defined in California Business and Professions Code 17200, et seq., all to the damage of Plaintiff. PRAYER FOR RELIEF WHEREFORE, plaintiff asks that this court grant judgment against defendant as follows: A. Defendant, its officers, agents, servants, employees, and attorneys, and all persons in active concert or participation with any of them, be preliminarily and permanently enjoined from the following: i. Making false or misleading statements regarding plaintiff, its products, or its employees. ii. Competing unfairly with plaintiff in any manner, including making false or misleading statements regarding plaintiff, its products, or its employees. iii. Conspiring with, aiding, assisting, or abetting any other person or entity in engaging in or performing any of the activities referred to in subparagraphs (i) and (ii) above. B. Defendant files with the court and serves on plaintiff, within 30 days after the entry and service on defendant of an injunction, a report in
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writing and under oath setting forth in detail the manner and form in which defendants have complied with the provisions of subparagraphs (A) and (B) above. C. patent. D. An accounting be directed to determine defendants profits resulting from its unfair competition and false advertising and that the profits be paid over to plaintiff, increased as the court determines is appropriate to the circumstances of this case. E. F. Plaintiff recover all damages it has sustained as a result of The court declare this case an exceptional case and award defendants false advertising and other acts of unfair competition. plaintiff its reasonable attorneys fees for prosecuting this action under 15 U.S.C. 1117(a) or under any other relevant statute. G. H. I. statute. J. K. /// /// /// /// /// ///
PLAINTIFF SB DIVERSIFIED PRODUCTS, INC.S COMPLAINT FOR FALSE ADVERTISING, DECLARATORY RELIEF, AND UNFAIR COMPETITION -8-

A judgment declaring that plaintiff has not infringed the 086

Plaintiff be awarded treble damages under 15 U.S.C. 1117(b). Plaintiff be awarded enhanced damages under Cal. Civ. Code Plaintiff be awarded statutory damages under any relevant Plaintiff recover its costs of this action and pre-judgment and Plaintiff receive all other relief the court deems appropriate.

3294 or under any other relevant statute.

post-judgment interest.

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DEMAND FOR JURY TRIAL Plaintiff hereby demands a trial by the jury on all claims so triable herein. Respectfully submitted, Dated: September 24, 2012 MANDOUR & ASSOCIATES, APC

Ben Lila (SBN 246808) blila@mandourlaw.com Attorneys for plaintiff, SB DIVERSIFIED PRODUCTS, INC.

PLAINTIFF SB DIVERSIFIED PRODUCTS, INC.S COMPLAINT FOR FALSE ADVERTISING, DECLARATORY RELIEF, AND UNFAIR COMPETITION -9-

JS 44 (Rev. )

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
SB DIVERSIFIED PRODUCTS, INC., a California Corporation

DEFENDANTS
MICHAEL MURCHISON, an individual
County of Residence of First Listed Defendant
NOTE:

(b) County of Residence of First Listed Plaintiff San Diego County, CA

(EXCEPT IN U.S. PLAINTIFF CASES)

Tehama County, CA

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

MANDOUR & ASSOCIATES, APC, 16870 W. Bernardo Drive, Suite 400, San Diego, CA 92127, (858) 487-9300

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

Attorneys (If Known)

'12CV2328 IEG MDD

and One Box for Defendant) PTF DEF Incorporated or Principal Place u 4 u 4 of Business In This State Incorporated and Principal Place of Business In Another State Foreign Nation u u 5 u 5 u 6

II. BASIS OF JURISDICTION

u 1 U.S. Government Plaintiff

(Place an X in One Box Only)

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

(For Diversity Cases Only) PTF Citizen of This State u 1 Citizen of Another State u 2 u 3 DEF u 1 u u 2

u 3 Federal Question (U.S. Government Not a Party) u 4 Diversity (Indicate Citizenship of Parties in Item III)

u 2

U.S. Government Defendant

Citizen or Subject of a Foreign Country

IV. NATURE OF SUIT

CONTRACT u u u u u u u u u u u u 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 (Excl. Veterans) 153 Recovery of Overpayment of Veterans Benefits 160 Stockholders Suits 190 Other Contract 195 Contract Product Liability 196 Franchise

(Place an X in One Box Only) TORTS u u u u u u u u u u 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 Med. 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 u 365 Personal Injury Product Liability u 367 Health Care/ Pharmaceutical Personal Injury Product Liability u 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY u 370 Other Fraud u 371 Truth in Lending u 380 Other Personal Property Damage u 385 Property Damage Product Liability PRISONER PETITIONS u 510 Motions to Vacate Sentence Habeas Corpus: u 530 General u 535 Death Penalty u 540 Mandamus & Other u 550 Civil Rights u 555 Prison Condition u 560 Civil Detainee Conditions of Confinement

FORFEITURE/PENALTY u 625 Drug Related Seizure of Property 21 USC 881 u 690 Other

BANKRUPTCY u 422 Appeal 28 USC 158 u 423 Withdrawal 28 USC 157 PROPERTY RIGHTS u 820 Copyrights x u 830 Patent --------------- (vam) u 840 Trademark u u u u u u u u u u u u u u u u u

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

u u u u u u

u u u u u u

REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

LABOR 710 Fair Labor Standards Act 720 Labor/Mgmt. Relations 740 Railway Labor Act 751 Family and Medical Leave Act 790 Other Labor Litigation 791 Empl. Ret. Inc. Security Act

u u u u u

SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g))

u u u u u u u

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

IMMIGRATION u 462 Naturalization Application u 463 Habeas Corpus Alien Detainee (Prisoner Petition) u 465 Other Immigration Actions

V. ORIGIN

u 1 Original Proceeding

--------------------- 28:1338 (vam) 15 U.S.C. 1125 VI. CAUSE OF ACTION Brief description of cause:

Transferred from u 2 Removed from u 3 Remanded from u 4 Reinstated or u 5 another district u 6 Multidistrict State Court Appellate Court Reopened Litigation (specify) Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

(Place an X in One Box Only)

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

False advertisement, declaratory judgment, and other related relief

DEMAND $ CHECK YES only if demanded in complaint: u Yes u No JURY DEMAND: DOCKET NUMBER

SIGNATURE OF ATTORNEY OF RECORD URE

09/20/2012
FOR OFFICE USE ONLY RECEIPT # AMOUNT

s/Ben T. Lila

APPLYING IFP

JUDGE

MAG. JUDGE