CASE 0:13-cv-02339 Document 1 Filed 08/26/13 Page 1 of 5

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA MILLER MANUFACTURING COMPANY, Plaintiff, v. HARRIS FARMS, LLC, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Court File No.

COMPLAINT (Jury Trial Demanded)

NATURE OF THE CASE This is a case for design patent infringement under the United States Patent Act and for violations of the United States Lanham Act. Millers claims arise from Harris Farms infringing, deceptive and unlawful conduct in the launch of a knockoff product as depicted in Exhibit C. THE PARTIES 1. Plaintiff Miller Manufacturing Company (Miller) is a Minnesota corporation

having its principal place of business at 2910 Waters Road, Suite 150, Eagan, MN 55121. Miller is a manufacturer and international distributor of farm, ranch and pet products. Its products are sold through distributors that serve retailers of farm and ranch products in the USA, Canada and over 35 countries around the world. 2. Defendant Harris Farms, LLC is a Tennessee corporation, having its principal

place of business at 7227 Haley Industrial Drive, Suite 200, Nolensville, TN 37135-9618. Harris Farms is a direct competitor in the farm, ranch and pet product industry. JURISDICTION AND VENUE 3. This Court has original jurisdiction over the Patent Act and Lanham Act claims

pursuant to 15 U.S.C. 1121(a), 28 U.S.C. 1331 and 1338(a) and pendent and supplemental

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jurisdiction over the state law claims under 28 U.S.C. 1338(b) and 1367 in that such claims are joined with substantial and related claims under the Trademark Laws of the United States, 15 U.S.C. 1050 et seq. 4. Venue is proper in this district under 28 U.S.C. 1391. Harris Farms has

marketed its product, and solicited clients throughout the United States, including the District of Minnesota. For example, Harris Farms attended a Mid-States Distributing Company Farm Show on August 24 - 27, 2013 at the Minneapolis Convention Center, located at 1301 Second Avenue South, Minneapolis, MN 55403 for the purpose of advertising and selling its knockoff products. FACTS 5. For well over 70 years, Miller Manufacturing has been the leading designer,

manufacturer, and marketer of supplies and equipment for farm use. 6. Miller is the owner by assignment of United States Design Patent No, D650,534,

as issued on December 13, 2011 (the 534 Patent). A true and correct copy is attached to this Complaint as Exhibit A. 7. Miller makes and sells a Nesting Box, through a network of distributors to

distribute their products throughout the United States. A true and correct depiction of the Miller Nesting Box product is shown in the attached Exhibit B. 8. The Harris Farms confusingly similar, knockoff product was discovered in

August 2013, when Millers representatives attended the Mid-States Distributing Company Farm Show. The knockoff product appears in a picture taken at the Show, in the attached Exhibit C. 9. By making, using, offering for sale and/or selling the knockoff product, Harris

Farms has infringed and continues to infringe the 534 Patent. 10. At the Mid-States Distributing Company Farm Show, Miller representatives have

fielded questions and comments demonstrating confusion over the source of the Harris Farms 2

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product. In particular, a Miller representative was asked: When did Miller start supplying Harris Farms with its new nest box? A Miller representative was also asked about any affiliation, as the Harris Farms knockoff product had ripped off the Miller Nest Box design in every detail. CLAIM I INFRINGEMENT OF 534 PATENT 35 U.S.C. 281 and 35 U.S.C. 271 11. 12. Miller repeats the allegations of paragraphs 1-10 of this Complaint. Harris Farms has infringed and continues to infringe the 534 Patent. CLAIM II FEDERAL TRADE DRESS INFRINGEMENT 15 U.S.C. 1125 13. 14. 15. Miller repeats the allegations of paragraphs 112 of this Complaint. Miller owns rights to the trade dress associated with its Nesting Box. Harris Farms use of Millers trade dress has caused and is likely to continue to

cause confusion among the relevant public as to source, sponsorship, origin or affiliation. 16. Harris Farms use of Millers trade dress constitutes infringement of Millers

rights in violation of 15 U.S.C. 1125. 17. Unless enjoined by this Court, Harris Farms infringing conduct will continue to

cause irreparable injury and other damage to Millers business, reputation and goodwill. Miller has no adequate remedy at law. 18. Pursuant to 15 U.S.C. 1117, Plaintiff is entitled to recover its damages, including

lost profits, Millers profits, and the costs of this action. This intentional nature of Harris Farms unlawful acts render this case exceptional, entitling Miller to an award of attorneys fees under 15 U.S.C. 1117(a).

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CLAIM III COMMON LAW UNFAIR COMPETITION 19. 20. rights. 21. Millers rights. 22. As a direct and proximate result of this unfair competition, Miller has suffered Harris Farms acts were taken in willful, deliberate and/or intentional disregard of Miller repeats the allegations of paragraphs 1-18 of this Complaint. Harris Farms conduct constitutes unfair competition in violation of Millers

and will continue to suffer irreparable harm if Harris Farms is not enjoined.

JURY DEMAND Plaintiff respectfully requests a jury trial for this matter. PRAYER FOR RELIEF WHEREFORE, the Plaintiff prays that the Court enter an order: A. Preliminarily and permanently enjoining and restraining Harris Farms, its

directors, members, officers, agents, servants, employees, subsidiaries, affiliates, and all persons in active concert or participation with, through, or under it, at first during the pendency of this action and thereafter perpetually from committing any acts of design patent infringement, trademark infringement, unfair competition, deceptive and unlawful trade practices; B. C. Ordering seizure of the Harris Farms knockoff product as depicted in Exhibit C; Making an award of all damages and items recoverable under any applicable

provision of law, including but not limited to, 15 U.S.C. 1117, 35 U.S.C. 284, 285 and/or 35 U.S.C. 289 which shall include (1) Harris Farms profits based on the aforementioned unlawful

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conduct and diverted sales; (2) Millers damages; (3) the costs of this action; and (4) Millers attorneys fees. D. Awarding Miller such other relief as the Court may deem just and proper.

MILLER MANUFACTURING COMPANY Date: August 26, 2013 By Counsel s/Kristine M. Boylan_______________________ Kristine M. Boylan (MN Reg. No. 284,634) Nisha Patel (MN Reg. No. 392,954) MERCHANT & GOULD P.C. 80 South Eighth Street, Suite 3200 Minneapolis, Minnesota 55402-2215 Telephone: 612.332.5300 Facsimile: 612.332.9081

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EXHIBIT A

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USO0D650534S

(12) United States Design Patent (10) Patent N0.:

Bormann
(54) POULTRY NESTING BOX

US D650,534 S
4* Dec. 13, 2011
Abrens ...................... .. 1330/113
Welker ......... .. .. D3O/108

(45) Date of Patent:

D222,365 s
D288,733 S

*
*
*

10/1971
3/1987

(75)

Inventor:

Shawn M. Bormann, Hutchinson, MN

7349318 B2

12/2010 Matsuo et a1 """"""" " 119/166

(US)

OTHER PUBLICATIONS

(73) Assignee: Miller Manufacturing Company, Inc., Eagan: MN (Us)

(M) Term? 14 Years

Photograph of EZ COOP Single Nesting BOX undated * cited by examiner

Primary Examiner * T. Chase Nelson
Assistant Examiner * Ania Aman

(21)
(51)
(52)

Appl' NO" 29/393,472

LOC (9) C1. ................................................ .. 30-02
US. Cl. .................................................... .. D30/110

(74) Attorney, Agent, or Firm * James W. Miller

The Ornamental design for a poultry nesting box, as shoWn
and described.

(58)

Field of Classi?cation Search ....... .. D30/108*120,

DESCRIPTION

D30/161; 119/285, 1614170, 482, 4964499, 119/502, 5124513, 712, 416, 437, 445, 452,
119/453 4 5 5
W
. See a
(56)

FIG. 1 is a perspective VieW of a poultry nesting box showing

my new design;
FIG 1;_ _

pp

lication ?le for com lete search histo

FIG. 2 1s a front elevatlonal V1eW of the des1gn 1llustrated 1n

_ _ _ _ _

References Cited

FIG. 3 1s a nght elevatlonal V1eW of the des1gn1llustrated 1n

U.S. PATENT DOCUMENTS FIG- 1;_ _ _ _ _ _

680,821 A
1,435,497 A

8/1901 Tremere
11/1922 Purdy ~

111s a left elevational V1eW of the des1gn 1llustrated 1n

>_ _ _ _ _

1,519,518 A 1,807,253 A 1,827,944 A

1,923,980 A

12/1924 Thorp @131, 5/1931 Peterson 10/1931 Krogstad

8/1933 Hultlne

FIG. 5 1s a top V1eW of the des1gn1llustrated1n FIG. 1; and, FIG. 6 is a bottom VieW ofthe design illustrated in FIG. 1. The broken line shoWing in FIG. 1 of a chicken and some
nest1ng straW 1ns1de the nest1ng box is for illustrative pur
. . . . . .

2,266,685 A 2,728,324 A 2,892,447 A

2,l74,326 A

12/1941 Dadlow 12/1955 Radocy 6/1959 Keen et a1.

9/1939

Lelbenguth

poses only and forms no part of the claimed des1gn.

1 Claim, 6 Drawing Sheets

CASE 0:13-cv-02339 Document 1-1 Filed 08/26/13 Page 3 of 13

US. Patent

Dec. 13, 2011

Sheet 1 of6

US D650,534 S

T111511

CASE 0:13-cv-02339 Document 1-1 Filed 08/26/13 Page 4 of 13

US. Patent

Dec. 13, 2011

Sheet 2 of6

US D650,534 S

ELIE- E

CASE 0:13-cv-02339 Document 1-1 Filed 08/26/13 Page 5 of 13

US. Patent

Dec. 13, 2011

Sheet 3 of6

US D650,534 S

F'ILE'- E

CASE 0:13-cv-02339 Document 1-1 Filed 08/26/13 Page 6 of 13

US. Patent

Dec. 13, 2011

Sheet 4 of6

US D650,534 S

F 15.4

CASE 0:13-cv-02339 Document 1-1 Filed 08/26/13 Page 7 of 13

US. Patent

Dec. 13, 2011

Sheet 5 of6

US D650,534 S

F'IE'- 5

CASE 0:13-cv-02339 Document 1-1 Filed 08/26/13 Page 8 of 13

US. Patent

Dec. 13, 2011

Sheet 6 of6

US D650,534 S

1: IE- 5

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EXHIBIT B

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EXHIBIT C

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JS 44 (Rev. 12/12)

CASE 0:13-cv-02339 Document 1-2 Filed 08/26/13 Page 1 of 2

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

MILLER MANUFACTURING COMPANY

Harris Farms, LLC

DEFENDANTS

(b)

County of Residence of First Listed Plaintiff Dakota

(EXCEPT IN U.S. PLAINTIFF CASES)

County of Residence of First Listed Defendant

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) Kristine M. Boylan, Merchant & Gould P.C., 80 South Eighth Street, Suite 3200 Minneapolis, MN 55402-2215; (612)332-5300; kboylan@merchantgould.com

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) 4 Diversity (Indicate Citizenship of Parties in Item III)

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

Citizen of This State (For Diversity Cases Only) PTF 1 2 3 DEF 1 2 3 Incorporated or Principal Place of Business In This State

and One Box for Defendant) PTF DEF 4 4 5 6 5 6

Citizen of Another State Citizen or Subject of a Foreign Country

Incorporated and Principal Place of Business In Another State Foreign Nation

IV. NATURE OF SUIT

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

(Place an X in One Box Only) 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

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

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/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))

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

Reinstated or Reopened

5 Transferred from Another District

(specify)

6 Multidistrict Litigation

VI. CAUSE OF ACTION

VII. REQUESTED IN COMPLAINT: VIII. RELATED CASE(S) IF ANY

DATE

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): Lanham Act, 15 U.S.C. 1051 et seq; 35 U.S.C. 281 Brief description of cause: Design Patent Infringement CHECK YES only if demanded in complaint: DEMAND $ CHECK IF THIS IS A CLASS ACTION UNDER RULE 23, F.R.Cv.P. Yes No JURY DEMAND:
(See instructions):

JUDGE
SIGNATURE OF ATTORNEY OF RECORD

DOCKET NUMBER

08/26/2013
FOR OFFICE USE ONLY RECEIPT # AMOUNT

s/ Kristine M. Boylan
APPLYING IFP JUDGE MAG. JUDGE

JS 44 Reverse (Rev. 12/12)

CASE 0:13-cv-02339 Document 1-2 Filed 08/26/13 Page 2 of 2

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading 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. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows: I. (a) (b) (c) II. Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)". Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.) Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive. Origin. Place an "X" in one of the six boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases.

III. IV.

V.

VI. VII.

VIII.

Date and Attorney Signature. Date and sign the civil cover sheet.