Gillespie v. Prestige Royal Liquors - Complaint

Case 3:16-cv-02392 Document 1 Filed 05/02/16 Page 1 of 27
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MULCAHY LLP
James M. Mulcahy (SBN 213547)
jmulcahy@mulcahyllp.com
Kevin A. Adams (SBN 239171)
kadams@mulcahyllp.com
Four Park Plaza, Suite 1230
Irvine, California 92614
Telephone: (949) 252-9377
Facsimile: (949) 252-0090
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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ELLIOTT GILLESPIE, an individual;

ROCKWOOD SPIRITS
INTERNATIONAL, a Canadian
corporation,
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COMPLAINT FOR:
1) Declaratory Judgment of NonInfringement of the 498 patent;
2) Declaratory Judgment of
Invalidity and Unenforceability of
the 498 patent;
3) Breach of Contract; and
4) Design Patent Infringement
Plaintiffs,
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Case No.
v.
PRESTIGE ROYAL LIQUORS,
CORP., a New York corporation;
GABRIEL SEZANAYEV a/k/a
Gavriyel Sezanayev, an individual;
FUSION GLASSWORKS, LLC, a
Florida corporation; and PRIVATE
LABEL DISTILLERY, LLC, a
Colorado corporation; and DOES 1
through 10, inclusive.
DEMAND FOR JURY TRIAL
Defendants.
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Plaintiffs
Elliott
Gillespie
(GILLESPIE)
and
Rockwood
Spirits
International Inc. (ROCKWOOD SPIRITS) doing business as GOLD BAR
BOTTLE COMPANY and GOLD BAR BOTTLING COMPANY (collectively
Plaintiffs) hereby sue Defendants Prestige Royal Liquors, Corp. (PRESTIGE),
Gabriel Sezanayev a/k/a Gavriyel Sezanayev (SEZANAYEV), Fusion
Glassworks, LLC (FUSION) and Private Label Distillery, LLC (PLD)
(collectively Defendants) and avers the following:
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THE PARTIES
1.
Plaintiff GILLESPIE is an individual who is a resident of Canada and
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is president of Gold Bar Whiskey and an innovator in the spirits industry.
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GILLESPIEs Gold Bar Whiskey was recently awarded a double gold medal at
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the prestigious San Francisco World Spirits Competition, as well as winning
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awards for packaging and design. GILLESPIEs Gold Bar Whiskey has also been
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featured by various whiskey/spirit websites and is the most innovative up and
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coming product with its unique design.
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California at 201 Spear Street, San Francisco, California 94105 and has a distillery
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location at 990 13th St, San Francisco, CA 94130-1222, in California.
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2.
Plaintiff GILLISPIE has offices in
Plaintiff ROCKWOOD SPIRITS is a Canadian company with its
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principle place of business in Ottawa, Canada. ROCKWOOD SPIRITS is engaged
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in the business of design, manufacture, production and sale of products. Plaintiff
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GILLESPIE is the President and majority shareholder of ROCKWOOD SPIRITS.
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3.
On information and belief, Defendant PRESTIGE is a corporation in
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New York listing a location at 45-47 157th Street, Flushing, New York, 11355.
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On information and belief, PRESTIGE is a licensee of U.S. Patent No. D750,498
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(the 498 patent) and U.S. Patent No. D754,545 (the 545 patent) and agent of
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SEZANAYEV, the inventor listed on the 498 patent and the 545 patent.
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SEZANAYEV is, upon information and belief, the owner of PRESTIGE, as well
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as other companies such as Golden Kilos & Co. Inc. who is listed as the owner of
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trademark applications at the United States Patent and Trademark Office.

4.
On information and belief, Defendant SEZANAYEV is a citizen of
New York and resides at 45-47 157th Street, Flushing, New York, 11355, and
SEZANAYEV is the inventor and licensor of the 498 patent and the 545 patent.
5.
On information and belief, Defendant FUSION is a Florida
corporation with a principal place of business at 1322 S.E. 17 th Street, Ft.
Lauderdale, FL 33316. FUSION is a custom glass designer and glass broker who
assists clients in customized glass bottles, making prototypes, and sourcing
packaging through Chinese manufacturers. On information and belief, the owners
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of Defendant FUSION are Michael Ferchak and Paul Dunning.

6.
On information and belief, Defendant PLD is a distillery and bottling
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facility in Colorado, also owned by Michael Ferchak and Paul Dunning, and
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related to Defendant FUSION. Upon information and belief, PLD and FUSION
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together offer glass and distillery services in North America. Defendant PLD is a
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company that assists clients with the development, growth, distribution, packaging
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and marketing of spirits with active participation in glass bottle development, via
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FUSION, from the facilities offices in Colorado and Florida.
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7.
Plaintiffs are unaware of the true names and capacities of all
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defendants sued here as Does 1 through 10, inclusive, whether individual,
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corporate, associate or otherwise, are unknown to Plaintiffs, who therefore sues
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said defendants by such fictitious names. Plaintiffs will amend this Complaint to
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allege their true names and capacities when they have been ascertained. Plaintiffs
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are informed and believes and thereupon alleges, that each of said fictitiously
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named defendants, is responsible in some manner for the occurrences herein
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alleged, included as an agent, coconspirator and alter ego of each of the other
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codefendants, and that Plaintiffs' damages as herein alleged, were proximately
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caused by the acts and/or omissions of each of them.
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8.
At all such times herein mentioned, defendants, each of them, were an

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owner, a co-owner, an agent, representative, partner, and/or alter ego of its co-
defendants, or otherwise acting on behalf of each and every remaining defendant
and, in doing the things hereinafter alleged, were acting within the course and
scope of their authorities as an owner, a co-owner, an agent, representative,
partner and/or alter ego of its co-defendants, with the full knowledge, permission
and consent of each and every remaining defendants, each co-defendant having
ratified the acts of the other co-defendants.
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Plaintiffs are informed and believes and, upon such information and
belief, alleges that each of the defendants named herein as Does 1 through 10,
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inclusive, were and are in some manner responsible for the actions, acts and
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omissions herein alleged, and for the damages caused by the defendants, and are
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therefore, jointly and severally liable for damages caused to Plaintiffs.
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Plaintiff are informed and believes, upon such information and belief,
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alleges that each of the defendants, including Does 1 through 10, inclusive, were,
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at all times herein mentioned, acting in concert with, and in conspiracy with, each
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and every one of the remaining defendants.
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NATURE OF THE DISPUTE

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Defendant PRESTIGE has asserted rights under U.S. Patent No.
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D750,498 (the 498 patent) based on certain activity of Plaintiff GILLESPIE,
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and Plaintiff GILLESPIE contends that it has the right to engage in this activity
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without license. A true and correct copy of the 498 patent is attached hereto as
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Exhibit A. PRESTIGE lacks standing to assert rights under the 498 patent.
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12.
Defendants PRESTIGE and SEZANAYEV have wrongly accused
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Plaintiffs of infringing the 498 patent, creating an actual controversy with the
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jurisdiction of this Court pursuant to 28 U.S.C. 2201-2202 as to the non-
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infringement, invalidity, and unenforceability of the 498 patent.
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13.
On April 26, 2016, U.S. Patent No. D754,545 (the 545 patent) was
issued to Defendant SEZANAYEV which has the same drawings as the 498
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patent. A true and correct copy of the 545 patent is attached hereto as Exhibit B.
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In this action, Plaintiffs seek a declaration, among other things, that:
(i) they do not directly or indirectly infringe the 498 patent or the 545 patent
licensed by PRESTIGE and owned by SEZANAYEV, (ii) the 498 patent and the
545 patent is invalid and unenforceable, (iii) Defendants FUSION and PLD,
directly and indirectly through their agents, breached their nondisclosure
agreements with Plaintiffs by providing Plaintiffs Intellectual Property (IP),
which includes but is not limited to confidential, proprietary, and trade secret
information such as marketing, products, product designs, and product launch
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timeline, to SEZANAYEV and PRESTIGE, and possibly others,
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indirectly through their agents and other property pertaining to Plaintiffs Gold
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Bar designs for the bottle packaging to SEZANAYEV and PRESTIGE, and
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others, (iv) Defendants, and others, are infringing GILLESPIEs patent, and (v)
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an order enjoining Defendants from further unlawful conduct and a judgment
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awarding all damages, punitive damages, as well as costs and attorneys fees is
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warranted.
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directly or
JURISDICTION AND VENUE

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This is a civil action regarding allegations of patent infringement
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arising under the patent laws of the United States, Title 35 of the United States
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Code, in which Plaintiffs seeks declaratory relief under the Declaratory Judgment
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Act. Thus, the court has subject matter jurisdiction over this action pursuant to 28
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U.S.C. 1331, 1338, 2201, and 2202.
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judgment of patent non-infringement, invalidity and unenforceability arising
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under the patent laws of the United States, Title 35 of the United States Code.
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This action includes a declaratory
An actual controversy exists between Plaintiffs and Defendants
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SEZANAYEV and PRESTIGE by virtue of the assertion of rights under the 498
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patent based on certain alleged activity by GILLESPIE. In particular, Defendants
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SEZANAYEV and PRESTIGE have stated that the 498 patent relates to the sale
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of a gold bar shaped container for whiskey in the United States by GILLESPIE.
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GILLESPIE contends that he has the right to engage in making, using,
offering to sell, and selling his products, including his Gold Bar Gold Finished
Whiskey product, without a license from Defendants.
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The Court has diversity jurisdiction under 28 U.S.C. 1332 and
supplemental jurisdiction over Plaintiffs state law claims under 28 U.S.C. 1367.
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Venue is proper in this judicial district under 28 U.S.C. 1391 and
1400.
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The Court may properly exercise personal jurisdiction over all the
Defendants for at least the following reasons:

a.
Defendants SEZANAYEV and PRESTIGE have personally availed
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themselves of the benefits and protections of California, and Plaintiffs claims arise
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out of Defendants SEZANAYEV and PRESTIGEs contacts with California.
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Among other things, they are disseminating advertising in California.
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SEZANAYEV maintains, as both the registrant and administrative contact, U.S.
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websites (www.3kilos.com, www.3kilosvodka.com and www.mr3kilos.com)
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which are accessible in California. Upon information and belief, these websites
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advertise and direct consumers to purchase through many stores that ship to
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residents in California, including this judicial district, and elsewhere, through
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specific retailers. Defendants SEZANAYEV and PRESTIGE also sell products to
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online shops and retail stores that, in turn, sell their products in California,
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including this judicial district.
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b.
Defendants PLD and FUSION have availed themselves of the benefits
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and protections of California and both maintain websites (www.fusion-
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glassworks.com which allows consumers to directly purchase product samples
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from the website, and www.privatelabeldistillery.com) which are accessible in
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California and have transacted business in California, including this judicial
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district. Upon information and belief, Defendants PLD and FUSION and Does 1
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through 10, have conspired with Defendants SEZANAYEV and PRESTIGE, and
unknown other Does 1 to 10, directly and indirectly, to commit, and/or have aided,
abetted, or otherwise contributed to the wrongful acts and omissions alleged
herein.
FACTUAL BACKGROUND
21. GILLISPIE is the owner of Gold Bar Bottle Company and an
innovator and creator of the Gold Bar Whiskey which is one of the newest and
sought after whiskies that is made in the United States and a winner of recent
awards.
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22. GILLISPIE filed a patent design application in July of 2009 for a
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bottle and was granted a US Patent Registration No. D643,298 on August 16, 2011
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(the GILLESPIE patent). A true and correct copy of the GILLESPIE patent is
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attached hereto as Exhibit C.
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23. GILLESPIEs project was known as the GOLD BAR project.
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GILLESPIE owns a U.S. Trademark Reg. No. 4617790 for GOLD BAR for
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alcoholic beverages and distilled spirits, namely whiskey, GILLESPIE also has
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a pending U.S. Trademark Application for GOLD BAR Serial No. 86/576,589
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filed on March 25, 2015 for non-alcoholic and alcoholic beverages.
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24. Upon information and belief, Defendants conspired to copy
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GILLESPIEs confidential and protected trade secret drawings, idea and
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information to produce an exact or similar Gold Bar bottle design to GILLESPIEs
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Gold Bar Bottle design.
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25. Defendant SEZANAYEV falsely represented to the United States
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Patent and Trademark Office (USPTO) that he was the original inventor of the
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claimed invention and patent design when in fact, he was not. This inequitable
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conduct alone of false representations to the USPTO of inventorship invalidates the
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498 patent and the 545 patent and renders them unenforceable and invalid.
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26. As set forth more fully below, upon information and belief, some of
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the initial glass bottle brokers and factories in China, breached their confidential
and nondisclosure agreements and gave GILLESPIEs confidential and trade secret
information to the Defendants who in turn used the confiscated materials to file a
design patent and produce their own Gold Bar Bottle from the confiscated
drawings and production details.
GILLESPIE APPROACHES ROCKWOOD & HINES, A
EUROPEAN OWNED, CHINA-BASED GLASS
BROKER/MANUFACTURER FOR ASSISTANCE IN THE BOTTLE
PROJECT
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27. In November 2013, GILLISPIE first approached a glass broker
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company in China named Rockwood & Hines (no relation to Plaintiff
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ROCKWOOD SPIRITS) to produce and manufacture his bottle and the parties
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entered a nondisclosure agreement to protect GILLESPIEs and ROCKWOOD
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SPIRITs confidential, proprietary, and trade secret information, including bottle
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and bottle closure designs. Rockwood & Hines agrees to not disclose any designs
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produced between the parties at any time to any third parties.
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28. Thereafter, GILLESPIE disclosed his confidential and trade secret

designs and confidential trade secret drawings for his Gold Bar bottle.
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29. The Rockwood & Hines representatives told GILLESPIE that they
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had never seen a design like GILLESPIEs Gold Bar Bottle design and thought it
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was very clever and unique.
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30. In December 2013, GILLESPIE paid Rockwood & Hines a design fee
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in which all designs were owned by GILLESPIE. The efforts as part of the design
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fee were to continue to perfect and develop an acceptable unique bottle design for
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GILLESPIE that resembled a Gold Bar, as part of GILLESPIEs vision for his
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product.
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31. GILLESPIE and representatives of Rockwood & Hines continued to
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exchange confidential emails regarding issues related to the design and the issues
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related to the engineering of the bottle in December 2013 (specific to
manufacturability based on the China glass factories technical capabilities).
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32.
Additional confidential emails were exchanged between GILLESPIE
and representatives of Rockwood & Hines in 2014 and 2015.
33. In particular, during design and manufacturing trials in 2014 and early
March 2015, GILLESPIE and Rockwood & Hines exchanged very detailed emails
on the specifications for the Gold Bar Bottle. At this time, Rockwood & Hines
told GILLESPIE that he was their top priority from today onward.
34. On March 3, 2015, Rockwood & Hines informed GILLESPIE that
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they could produce 50,000 units and a final technical drawing was sent to
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GILLSPIE soon thereafter. These communications and designs would most likely
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have been exchanged between Rockwood & Hines and the Chinese glass factory
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where Defendants products referred to as the 3 Kilos bottle were eventually
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produced. However, there were still problems raised by Rockwood & Hines and
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further exchanges of revised drawings. Sometime thereafter, GILLESPIE stopped
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working with Rockwood & Hines. However, at all times, Rockwood & Hines was
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under a confidential and nondisclosure agreement to keep all communications and
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designs and ideas confidential and protected.
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35. Unbeknownst to GILLESPIE, in this same time frame and at least by
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March 11, 2015, Defendant SEZANAYEV filed his first patent design application
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with the USPTO for a vodka bottle that is the same or similar to the drawings
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GILLESPIE was exchanging with Rockwood & Hines and others, even though
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such drawings and designs were protected under the confidential and nondisclosure
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agreements signed by the various parties.
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GILLESPIE APPROACHES FUSION GLASSWORKS AND
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PRIVATE LABEL DISTILLERY OWNED BY MICHAEL FERCHAK AND
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PAUL DUNNING
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36. In an effort to get another opinion on the confidential designs for his
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bottle GILLESPIE approached FUSION, a US company owned by Michael
Ferchak and Paul Dunning.
37. Michael Ferchak, acting on behalf of FUSION and in his individual
capacity signed a confidential and nondisclosure agreement in July 2014 (8 months
before Defendant SEZANAYEV filed his first patent) for the Gold Bar Bottle
project, a true and accurate copy of which is attached as Exhibit D. After the
confidentiality and nondisclosure agreement was signed, GILLESPIE shared the
confidential and trade secret drawings and the information about the design to get
another design opinion from FUSION.
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38. Paul Dunning, acting as the Managing Partner of PLD and in his
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individual capacity also signed a confidential and nondisclosure agreement in
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October 2014 which covered, inter alia, conversations that included Michael
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Ferchak both verbally and in writing by email related to blending and bottling
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services for the gold bar project. A true and accurate copy of that nondisclosure
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agreement is attached as Exhibit E. An Addendum for the Gold Bar Whiskey
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Project was signed again in July 2015 where Both Paul Dunning and Michael
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Ferchak signed the addendum, in their individual capacity and as representatives of
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FUSION and PLD, a true and accurate copy of which is attached as Exhibit F.
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39. As part of the confidential and nondisclosure agreements, Paul
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Dunning and Michael Ferchak, agreed that they would not share or disclose any IP
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belonging to Plaintiffs, including but not limited to business strategy, their business
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relationship, product design, and product launch timeliness. Defendants FUSION
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and PLD, through their owners, Paul Dunning and Michael Ferchak, agreed that
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any of their agents, directors, officers, employees, representatives, consultants and
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advisors were also bound by the nondisclosure agreement. In reliance on the
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nondisclosure agreements, Plaintiffs shared its IP, including its Gold Bar bottle
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drawings with Defendants FUSION and PLD in July of 2014 and after.
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40. FUSION later reported to GILLESPIE that his Gold Bar Bottle design
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cannot be produced, so GILLESPIE worked to find another glass bottler or design
company, but still worked with Paul Dunning and Michael Ferchak from October
2014 onward into the fall of 2015. Ongoing discussions between Paul Dunning,
Michael Ferchak and GILLESPIE continued regarding the Gold Bar bottle project,
potential customers, and the fact that GILLESPIE had a patent on his bottle design.
41. Thereafter, GILLESPIE visited the PLD offices in Colorado in July
2015 and spent two days with Paul Dunning making further disclosures of
information, showing Paul the physical glass samples of his bottle and pictures of
marketing, branding, labels, artwork, line extensions, all of which were covered by
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the nondisclosure agreement in place regarding the design of the Gold Bar bottles.
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While GILLESPIE was specifically at the PLD offices to discuss distillery issues
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relating to the whisky or other spirits, they also discussed the design of the Gold
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Bar Bottle and other confidential information protected by the nondisclosure
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agreements. It was on this visit that Paul Dunning informed Plaintiffs that he
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represented a client named 3 KILOS, but Plaintiff had no knowledge or reason to
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believe that at the time any of Plaintiffs IP was disclosed to any other party, let
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alone to the 3 KILOS owners. Paul Dunning also stated at this meeting that he
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was in close contact with an employee of Rockwood & Hines, as he was trying to
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poach them to come work for his company FUSION and that GILLESPIE would
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be in very good hands as they have knowledge of our product and the transition
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would be seamless in moving over the project.
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42. Upon information and belief, and unbeknownst to Plaintiffs,
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Defendants FUSION and PLD all violated and breached their confidential and
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nondisclosure agreements by providing the Gold Bar Bottle designs and other
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materials and confidential business practices that were proprietary IP of Plaintiffs
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with Defendants SEZANAYEV and PRESTIGE and/or agents or representatives
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of Defendants.
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43. Plaintiffs later learned that the Chinese Factory was making a bottle
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by FUSION that was similar to Plaintiffs Gold Bar Bottle as the sample bottle
from China had the FUSION logo on the bottle and the 3 Kilos label on the side of
the sample bottle. See below Fusion Glassworks logo, the June 2015 sample bottle
with the fusion logo, as compared to Defendants current product which also has
the FUSION logo directly on the product:
Defendant FUSIONs Logo:

product.
is on the prototype sample and the final
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44. Thus, by June 2015, Defendants and their agents and representatives
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were already working to produce and manufacture GILLESPIEs Gold Bar Bottle
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design to use it in connection with their vodka products, and possibly other spirits,
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even whiskey. Upon information and belief, the bottle was rudimentary in terms of
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its final design, but more closely matched GILLESPIEs patent in later product
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designs.
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45. In August 2015, in an email from Paul Dunning to GILLESPIE, Paul
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Dunning, acting on behalf of PLD and FUSION makes it clear that he knows the
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factory in which GILLESPIE is producing his Gold Bar Bottles and asks
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GILLESPIE when he first produced his bottles.
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46. On or about February 6, 2016, Paul Dunning telephoned GILLESPIE
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and told him that 3 Kilos brand is placing an order for one million dollars of glass,
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a huge order as he describes it, and that GILLESPIE better hurry up to get on
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the market and that FUSION can assist if GILLESPIE has issues with his current
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broker. Paul Dunning stated that GILLESPIES Gold Bar Bottle is better than the
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3 Kilos one and that GILLESPIES current supplier has a lot of issues with other
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clients and quality problems. Paul Dunning also advised he would like to quote
GILLESPIE on the glass production. Paul Dunning was also asking GILLESPIE
in this phone call for all sorts of information on the distillery and GILLESPIEs
release date of his Gold Bar product. Paul Dunning even requested that he buy
GILLESPIEs whiskey inventory at the PLD facility.
inventory to PLD, but has yet to be paid.
GILLESPIE sold this
47. In March 2016, Plaintiff saw Michael Ferchak at a spirits trade event
and Michael Ferchak informed GILLESPIE that he saw Plaintiffs design and
bottle in China on the shelf at the manufacturer.
Michael Ferchak also told
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GILLESPIE that he does not want any legal problems, which suggested that he
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knew the SEZANAYEV design for the 3 KILOS bottle was the same or very
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similar to Plaintiffs Gold Bar Whiskey bottle design and that he had illegally and
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improperly given the information, design drawings and images to SEZANAYEV,
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or agents or representatives working directly or indirectly with SEZANAYEV and
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the Chinese Factory. At the same time, Michael Ferchak informed GILLESPIE
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that 3 KILOS was just awarded a patent on their bottle design.
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48. On April 20, 2016, Paul Dunning approached GILLESPIE in Las
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Vegas at a trade show. Without any questions or inquiry from GILLESPIE went
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into a dialogue trying to explain that he is not connected with the 3 Kilos company
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and trying to distance himself from being involved with the 3 Kilos product. Paul
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Dunning admitted to GILLESPIE at this time that he was aware of both designs
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and that there was a looming issue. Paul Dunning also stated that he has nothing
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to do with the glass side of the business, that is Michael Ferchaks business and the
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two are not connected. However, this was untrue as only Paul Dunning and
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another employee were representing FUSION at the FUSION booth at the Wine
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and Spirits Wholesalers Association (WSWA) event in Las Vegas in April 2016.
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49. Paul Dunning and Michael Ferchaks actions individually and on
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behalf of FUSION and PLD, demonstrate that they have colluded and conspired
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with others, including and not limited to factories in China, to illegally and
improperly turn over GILLESPIEs confidential designs which they took all for
personal gain and gave or shared with Defendants PRESTIGE and SEZANAYEV,
and their agents and representatives.
50. Meanwhile,
upon
information
and
belief
PRESTIGE
and
SEZANAYEV, directly and indirectly through their representatives and agents are
spreading false rumors on the Gold Bar Whiskey products stating that Gold Bar
Whisky is violating their patent and infringing their patent. This is all untrue and
designed to harm GILLESPIE and his launch of his Gold Bar Whiskey product
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when in reality, it is Defendants who are engaging in bad conduct and who
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obtained a patent through their inequitable conduct and by stealing GILLESPIEs
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designs and ideas.
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DEFENDANTS CONSPIRED AND COLLUDED TO SHARE THE
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CONFIDENTIAL DESIGNS AND RUSHED TO FILE DESIGN PATENTS
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51. Upon information and belief, Plaintiffs proprietary, confidential and
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trade secret information, designs and IP, were illegally and improperly shared
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among and between all Defendants prior to March 2015 which was the first date
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that SEZAYANEV filed his first patent design application.
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patent application copied GILLESPIEs IP and proprietary designs provided to
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Defendants FUSION and PLD, as well as other third parties such as Rockwood &
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Hines, under strict confidentiality and nondisclosure agreements.
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SEZANAYEVs
52. On or about March 2015, after such time as Plaintiffs had shared their
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IP, including the confidential product designs
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information with Defendants FUSION and PLD under the confidential and
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nondisclosure agreement, SEZANAYEV filed a design patent application assigned
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US 29/520,145 which was titled VODKA BOTTLE. Recently, on April 26,
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2016, this patent design application became the 545 patent.
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and confidential business
53. The timing of SEZANAYEVs first patent design in March of 2015

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and expedited review request is of no coincidence. It was at this same time that
Rockwood & Hines, the Chinese glass broker had approved the final designs for
GILLESPIE and at a time after which representatives and agents of FUSION, PLD
and Rockwood & Hines had, upon information and belief, colluded and conspired
with SEZANAYEV and others acting as agents and representatives of
SEZANAYEV to file the patent design whereby SEZANAYEV claimed he was
the original inventor and signed a false declaration under penalty of perjury and
other that he was the original inventor when he was not and the drawings were
merely copied and taken, and were not his own.
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54. Further, through information and belief, Defendants were all aware
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that GILLESPIE developed the Gold Bar Bottle designs and that SEZANAYEV
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was not the inventor of the designs. Nevertheless, through information and belief,
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SEZANAYEV went forward to file two design patent applications in lieu of
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knowing about GILLESPIEs Gold Bar Bottle designs and in fact copying such
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designs.
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55. Additionally, in October 2015, SEZANAYEV filed papers with the
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USPTO seeking expedited review of the design patent and paid the expedited
18
review fee to try to get a patent as fast as possible.
19
56. Subsequently in June 2015, SEZANAYEV filed a second design
20
patent, a Continuation in Part design application no. 29/529,056 of the prior design
21
application no. 29/520,145. SEZANAYEVs design application no. 29/529,056
22
also requested expedited examination. In the application filing, just as done in his
23
first design patent application, SEZANAYEV signs a declaration under penalty of
24
perjury and oath that he is the original inventor.
25
57. This declaration was false and material to the grant of his patent
26
design registration when in fact he did not invent anything and merely copied
27
Plaintiffs confidential and trade secret designs and IP, including product designs,
28
and did not invent or make any novel design. This second design patent was also
-15-
expedited for review presumably because SEZAYANEV knew he had taken the
designs and drawing and was trying to get a patent granted as soon as possible. On
March 1, 2016, the 498 patent was granted. On April 26, 2016, the545 patent
was granted.
5
6
THE CEASE AND DESIST LETTERS

58.
On or about April 1, 2016, Defendant PRESTIGE (through counsel)
contacted GILLESPIE by letter, informing him that PRESTIGE is the exclusive
licensee of the 498 patent, enclosing a copy of the said patent, and stating that
[Y]ou, your company, marketing persons and certain distributors in the U.S.
10
presently advertise, offer for sale and sell a gold bar-shaped container for
11
whiskey in the United States As the exclusive licensee of the 498 patent,
12
our client is entitled to keep others from using, selling, advertising and
13
distributing containers or bottles that are identical or nearly identical as that
14
shown in the 498 patent and we request you immediately cease and desist
15
from all use, sale, advertising or distributing containers or bottles of that
16
type.
17
In the cease and desist letter, PRESTIGE identified the allegedly infringing
18
products including the gold bar shaped container of whiskey product.
19
PRESTIGE further requested immediate written assurances that GILLESPIE will
20
no longer use, sell, advertise or distribute the containers or bottles in the future and
21
requested an accounting.
22
23
24
59.
Thus, PRESTIGE asserted their right, title, and interest to the 498
patent.
60.
The 498 patent is a design patent titled GOLD BAR-SHAPED
25
CONTAINERS FOR ALCOHOLIC AND NON-ALCOHOLIC BEVERAGES.
26
The 498 patent on its face states that it was issued on March 1, 2016.
27
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61.
Plaintiffs believe that their products, including its Gold Bar Gold
Finished Whiskey product do not infringe the 498 patent or the 545 patent and
-16-
that the claims of the 498 patent and the 545 patent are invalid. Accordingly, an
actual controversy exists as to whether Plaintiffs manufacture, use or sale of its
products infringes any valid or enforceable claim of the 498 patent and the 545
patent.
unenforceability, Defendants PRESTIGE and SEZANAYEV will continue to
wrongly assert the 498 patent against Plaintiffs and the 545 patent against
Plaintiffs, and thereby causing Plaintiffs irreparable harm.
62.
Absent a declaration of non-infringement, invalidity, and/or
Defendant PRESTIGE has also sent cease and desist letters to
Plaintiffs retailers such as www.forwhiskeylovers.com and Douglas Stone, 870
10
Piermont Avenue, Piermont, NY 10968 and www.goldbarwhiskey.com,
11
threatening that sale of Plaintiffs Gold Bar Gold Finished Whiskey product
12
violates Defendants patent rights which is and will cause Plaintiff irreparable
13
harm.
14
GILLESPIES DESIGN AND THE 3 KILOS BOTTLE DESIGN
15
63.
Separate from the 498 and 545 patent, upon information and belief,
16
Defendants SEZANAYEV and PRESTIGE, through a number of agents and sales
17
representatives and/or distributors, and Does 1 through 10, have made, used,
18
imported, offered for sale, and/or sold a bottle design without license or authority
19
from GILLESPIE, products covered by the claims in the GILLESPIE patent
20
(hereinafter referred to as the Accused Products).
21
22
23
64.
The design of the bottle in the Accused Product are not designs or
claims from the 498 or 545 patent.

65.
Upon information and belief, the Accused Products are identified by
24
Defendants as 3 KILOS VODKA, 3 KILOS, 3 KILOS HOLLAND
25
VODKA, and are advertised on Facebook, Instagram, www.3kilos.com,
26
www.newyorkliquorgiftshop.com,
27
searcher.com, www.iconosquare.com, and sold online and in retail stores, as well
28
as marketed and advertised at trade shows.
www.lwwarehouse.com,
-17-
www.wine-
66.
The Accused Products, an example of which is shown below on the
left hand side or bottom side, are virtually identical to the claim of the
GILLESPIE patent, as shown below on the right-hand side or top side:
4
5
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10
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67.
Defendants
SEZANAYEV
and
PRESTIGE,
their
agents,
representatives, sales persons and distributors, have touted their 3 KILOS

VODKA product at various trade shows and to the industry as being the first
product with the bottle design of a gold bar. However, the 3 KILOS VODKA
product is not the first product with the bottle design of a gold bar and is not
covered by the 498 patent or 545 patent. Thus, Defendants PRESTIGE and
SEZANAYEV, and others who are acting as representatives and agents of
PRESTIGE and SEZANAYEV are, upon information and belief, making false
-18-
claims of patent protection.
The below photo was taken from the 3 Kilos
Instagram site, posted by them on March 22, 2016. This was posted while at an
event where Plaintiffs GOLD BAR WHISKEY was being displayed at a table 50
years from the 3 Kilos table, causing further economic hardship as numerous
retailers attending the show approached GILLESPIE and said that the 3 Kilos
booth representatives are saying that GILLESPIE is infringing their patent. See
the attached image and text.
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9
10
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15
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68.
Further evidence that the Defendants colluded and conspired together
22
to commit these wrongful and infringing acts is evidenced by the Accused Product
23
which on its face has the FUSION trademark directly on the product, as shown in
24
the below picture and set forth in the above paragraphs.
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1
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FIRST CAUSE OF ACTION

(Declaratory Judgment of Non-Infringement of the 498 patent)
69.
Plaintiffs hereby incorporates by reference its allegations contained in
paragraphs 1 through 66 of this Complaint as though fully set forth herein.

70.
Defendants SEZAYANEV and PRESTIGE contend that products
made, used, sold, advertised or marketed by GILLESPIE infringe the 498 patent.
71.
Plaintiffs
deny
Defendants
SEZAYANEV
and
PRESTIGEs
contentions and alleges that the products do not directly or indirectly infringe the
498 patent or the 545 patent.
72.
An actual controversy thus exists between Plaintiffs and Defendants
SEZAYANEV and PRESTIGE as to whether the accused products infringe the

498 patent and the 545 patent.
73.
Accordingly, Plaintiffs seeks and is entitled to a judgment against
Defendants SEZAYANEV and PRESTIGE that they do not infringe and have not
infringed, directly or indirectly, contributorily or by inducement, the 498 patent
and the 545 patent.
74.
Pursuant to 28 U.S.C. 2201 and 2202, a judicial determination of the
respective rights of the parties with respect to the alleged infringement of the 498
patent and the 545 patent is necessary and appropriate under these circumstances.
28
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SECOND CAUSE OF ACTION
(Declaratory Judgment of Invalidity and Unenforceability of the 498 patent)
3
4
75.
paragraphs 1 through 66 of the Complaint as though fully set forth herein.
5
6
Plaintiffs hereby incorporate by reference its allegations contained in
76.
Defendants SEZAYANEV and PRESTIGE content the 498 patent is
valid and enforceable.
77.
Plaintiffs deny Defendants contentions and alleges that the 498
patent and the 545 patents are invalid and unenforceable for failure to meet one
or more of the conditions of patentability specified in Title 35 of the United States
10
Code, 35 U.S.C. 102, 103, 112, and/or 171. PRESTIGE and SEZANAYEV
11
dispute these contentions. No claim or design drawing of the 498 patent or the
12
545 patent can be validly construed to cover any products imported, made, used,
13
sold or offered for sale by Plaintiffs and the alleged invention of the 498 patent
14
and the 545 patent is taught by, suggested by, and/or obvious in view of the prior
15
art.
16
78.
The 498 patent and the 545 patent are also invalid under 35 U.S.C.
17
112 as the patent drawings are inconsistent and incomplete and do not disclose the
18
patent. Moreover, the 498 patent and the 545 patent are also invalid for
19
nonenablement and indefiniteness under 35 U.S.C. 112.
20
inconsistencies in the drawing are material and of such magnitude that the overall
21
appearance of the design is unclear. Some of the drawings depict the 498 patent
22
and the 545 patent with a rectangle shape on the top and bottom and other
23
drawings depict the 498 patent and the 545 patent with a trapezoid shape on the
24
top and bottom and neither half can be disregarded as unclear due to the
25
perspectives shown.
26
79.
The errors and
The named inventor of the designs set forth in the 498 patent and the
27
545 patent are not the inventor thereof rendering the patents invalid and
28
unenforceable under 35 U.S. C. 102(f). Additionally, the 498 patent and the
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545 patent do not designate all inventors of the designs set forth in the patent
rendering the patents invalid and unenforceable.
3
4
80.
The designs in the 498 patent and the 545 patent are obvious under
36 U.S.C. 103.
81.
The 498 patent and the 545 patent are unenforceable as a result of
inequitable conduct of Defendants and/or their representatives, including but not
limited to, Gary or Godel Sezayanev, Gabriel Sezanayev, Paul Dunning and
Michael Ferchak, and others unknown at this time.
82.
During prosecution of the 498 patent and the 545 patent, Defendants
10
and/or others substantively involved in the preparation of the 498 patent and the
11
545 patent engaged in inequitable conduct before the USPTO. Upon information
12
and belief, the SEZANAYEV withheld information about the GILLESPIE Gold
13
Bar Bottle designs, despite having in his possession such information.
14
information was material and not cumulative to the U.S. Patents issued on the face
15
of the 498 patent and the 545 patent, the information provided by SEZANAYEV
16
and his attorney to the USPTO in an Information Disclosure Statements, and the
17
information before and/or considered by the USPTO during the prosecution of the
18
498 patent application and the 545 patent application.
19
83.
This
Further, upon information and belief, SEZANAYEV filed a false
20
declaration with the USPTO claiming he was the inventor, when he knew he was
21
not.
22
84.
On information and belief, the material information withheld by
23
SEZANAYEV and/or his attorney was withheld knowingly and with the intent to
24
deceive or mislead the USPTO.
25
26
85.
Such inequitable conduct renders the 498 patent and the 545 patent,
and all the claims thereof, unenforceable.
27
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1
2
3
4
5
THIRD CAUSE OF ACTION

(Breach of Contract Against Defendants FUSION and PLD and Does 1 - 10)
86.

87.
Defendants FUSION and PLD and Does 1 to 10, entered into
confidential and nondisclosure agreements in connection with protecting and
sharing information to produce glass bottles and design, samples and production
molds for samples and final products.
agreements also were directed to production of custom formulation, blending and
10
11
The confidential and nondisclosure
purchase of bulk alcohol supply and contract bottling and packaging.

88.
Pursuant to these agreements, Defendants FUSION and PLD agreed
12
that Plaintiff owned all the confidential and proprietary information and trade
13
secrets, and that they would protect and preserve all of Plaintiffs information,
14
trade secrets, strategy, product launch timeline, IP and technology, including but
15
not limited to product design.
16
89.
Defendants FUSION and PLD breached these confidentiality and
17
nondisclosure agreements by transferring and disclosing Plaintiffs confidential
18
and proprietary information, trade secrets, and IP, including product design,
19
strategies, and product launch timeline to SEZAYANEV and PRESTIGE and
20
other Does 1 to 10 and to competitors of Plaintiffs.
21
90.
As a legal and proximate cause of Defendants FUSION and PLDs
22
breaches of contract, Plaintiffs have and will continue to suffer substantial
23
economic damages.
24
FOURTH CAUSE OF ACTION
25
(Design Patent Infringement Against All Defendants and Does 1 - 10)
26
27
28
91.

92.
No Defendant in this action has sought or received a license from

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1
2
Plaintiff GILLESPIE for any purpose whatsoever.

93.
Defendants SEZANAYEV and PRESTIGE, through a number of
agents and sales representatives and/or distributors, and Does 1 through 10,
without consent have been and are infringing the GILLESPIE patent under 35
U.S.C. 271(a), by making, using, offering for sale or selling, without license or
authority from GILLESPIE, in this District and elsewhere in the United States,
products covered by the GILLESPIE patent bearing the ornamental design that
embodies the inventions claimed in the GILLESPIE patent, and will continue to
do so unless enjoined by the Court.
10
94.
Defendants have had actual or constructive knowledge of the
11
GILLESPIE patent and their prior and continuing infringement of the GILLESPIE
12
patent was and continues to be willful and deliberate.
13
95.
Defendants infringement of the GILLESPIE patent has irreparably
14
damaged Plaintiffs in an amount that is unknown and cannot at the present time be
15
ascertained, and will cause added injury and loss unless Defendants are enjoined
16
by this Court.
17
96.
Without the consent of Plaintiffs, Defendants have actively induced
18
infringement and/or contributed to the infringement, and are still actively inducing
19
and/or contributing to the infringement of the GILLESPIE patent, and will
20
continue to do so unless enjoined by the Court.
21
97.
Defendants
inducement
of
infringement
and
contributory
22
infringement of the GILLESPIE patent has irreparably damaged Plaintiffs in an
23
amount that is unknown and cannot at the present time be ascertained, and will
24
cause added injury and loss unless Defendants are enjoined by this Court.
25
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98.
Plaintiffs have no adequate remedy at law.

REQUEST FOR RELIEF
WHEREFORE, Plaintiffs requests that this Court enter judgment in its
favor against all Defendants as follows:

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A.
For a judicial declaration that Plaintiffs do not infringe contribute to
the infringement of, induce others to infringe, either directly or
indirectly, any valid claim of the U.S. Patent No. D750,498 and/or
U.S. Patent No. D754,545; and
B.
6
7
For a judicial declaration that U.S. Patent No. D750,498 and/or U.S.
Patent No. D754,545 are invalid and unenforceable; and
C.
Ordering that Defendants, their agents, and all persons acting in
concert or participation with Defendants be enjoined from asserting
claims against Plaintiffs for infringement of the U.S. Patent Design
10
No. D750,498 and/or U.S. Patent Design No. D754,545, and from
11
asserting to third parties that Plaintiffs products in any way infringe
12
Defendants design patents; and
13
D.
Ordering that Defendants inequitable conduct in the prosecution of
14
the Defendants patents and/or their predecessor applications render
15
these patents unenforceable; and
16
E.
Ruling that Defendants FUSION and PLD breached their
17
confidentiality and nondisclosure agreements with Plaintiffs, to enjoin
18
FUSION and PLD to prevent further breaches and award attorneys
19
fees;
20
F.
21
22
Judgment for Plaintiffs on its cause of action for patent infringement

of U.S. Patent Design No. D643,298; and
G.
That the Court preliminarily and permanently enjoin Defendants, their
23
officers, agents, servants, employees and attorneys, and anyone acting
24
in concert or participation with them or any of them, from infringing
25
the GILLESPIE patent, U.S. Patent Design No. D643,298, as
26
provided in 35 U.S.C. 283, and specifically bar Defendants and
27
anyone else acting in concert with Defendants, from making, using,
28
selling, or offering for sale products that infringe the GILLESPIE

-25-
patent, U.S. Patent Design No. D643,298, and that they be
permanently enjoined and restrained including but not limited to;
H.
That Defendants be preliminarily and permanently enjoined from
using the Accused Products in any show, trade fair, or marketing
venture, including but not limited to use as a permanent or temporary
display;
I.
That Defendants will remove any picture, photo or reference to the
Accused Products from any and all touch screen computers at any
and all trade shows and from any and all Internet web sites, including
10
11
Facebook, Instagram and other social media sites;

J.
That Defendants be required to deliver up to Plaintiff for destruction,
12
any and all goods in their possession or under their control that were
13
or are being advertised, promoted, offered for sale or sold which
14
infringe the GILLESPIE patent;
15
K.
That Defendants be required, pursuant to 35 U.S.C. 284 and 289,
16
to account to Plaintiff for any and all profits derived by them, and for
17
all damages sustained by Plaintiff by reason of Defendants actions
18
complained of herein, including an award of treble damages provided
19
by statute;
20
L.
That the Court award Plaintiff damages, as provided by 35 U.S.C.
21
284 and 289, resulting in the infringement of the 322 Patent by
22
Defendants;
23
M.
reasonable attorneys fees as provided in 35 U.S.C. 285.
24
25
N.
26
27
28
That the Court award Plaintiff its costs in this action, together with
That Plaintiff be awarded both pre-judgment and post-judgment
interest on each and every damage award;
O.
Declaring this to be an exceptional case under 35 U.S.C. 285 and

the extent provided by law requiring Defendants to pay Plaintiffs
-26-
attorneys fees and expenses; and
1
2
P.
Awarding Plaintiff such other and further relief as the Court deems
just and proper.
4
5
6
7
JURY DEMAND
Plaintiffs demand a trial by jury on all issues so triable as a matter of right
and law.
8
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10
11
12
DATED: May 2, 2016
MULCAHY LLP
By: /s/ Kevin A. Adams
Kevin A. Adams
Attorneys for Plaintiffs
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-27-
Case 3:16-cv-02392 Document 1-1 Filed 05/02/16 Page 1 of 36
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
NON-DISCLOSURE AGREEMENT
July 17, 2013
Michael Ferchak
International | Managing Partner, Director of Manufacturing
Fusion Glassworks
+1 646-431-0439
michael@fusion-glassworks.com
www.fusion-glassworks.com
Attention: Mr. Michael Ferchak
Re:
Disclosure of Information
Dear Mr. Ferchak:

Fusion Glassworks (the Recipient or you) wishes to obtain certain information from us in
connection with producing a glass bottle design and sample mold and production mold for both
renderings, samples and final products. This includes creative glass bottle and bottle closure
design and graphic design work (the Permitted Purpose), all subject to the terms and
conditions set out in this Agreement.
Definitions.
In this Agreement, the term our Representatives means our agents, directors, officers,
employees, representatives, consultants and advisers. The term your Representatives means
your agents, directors, officers, employees, representatives, consultants and advisers.
The term Confidential Information means:
(a)
all information, in whatever form communicated or maintained, that we disclose
to, or that is gathered by inspection by, you or any of your Representatives, whether provided
before or after the date of this Agreement;
(b)
all plans, design, proposals, reports, analyses, notes, studies, forecasts,
compilations or other information, in any form, that are based on, contain or reflect any
Confidential Information regardless of the identity of the person preparing the same (Notes);
and
(c)
any matter relating to (i) this Agreement, and (ii) the disclosure of information by
us to you or your Representatives.
The term Confidential Information does not include any information that:
2
(a)
is at the time of disclosure to you or thereafter becomes generally available to the
public, other than as a result of a disclosure by you or any of your Representatives in breach of
this Agreement;
(b)
is or was received by you on a non-confidential basis from a source other than us
if such source is not prohibited from disclosing the information to you by a contractual, fiduciary
or other legal obligation to us; or
(c)
was known by you prior to disclosure under this Agreement if you were not
subject to any contractual, fiduciary or other legal confidentiality obligation in respect of such
information and such prior knowledge can be proven by written records in your possession prior
to such disclosure.
Provision of Confidential Information.
Subject to the provisions of this Agreement, we shall make such Confidential Information
available to you as we, in our sole discretion, consider advisable in the circumstances, solely for
the Permitted Purpose. Subject to the provisions of this Agreement, you shall, and shall cause
your Representatives to, comply with all of our procedures relating to the provision of
information as we may adopt from time to time.
Non-Disclosure of Confidential Information.
You shall treat confidentially and not disclose, and shall cause your Representatives to treat
confidentially and not disclose, except as permitted herein, any Confidential Information. You
may disclose any of the Confidential Information only to those of your Representatives who need
to know such Confidential Information for the Permitted Purpose. You shall inform your
Representatives of the confidential nature of such Confidential Information and cause each of
your Representatives to treat such Confidential Information confidentially in accordance with
this Agreement and not disclose such Confidential Information except as permitted herein. You
shall be responsible for any breach of this Agreement by any of your Representatives.
Use of Confidential Information.
You shall not use, and shall cause your Representatives not to use, the Confidential Information
for any purpose other than the Permitted Purpose. You shall not use the Confidential
Information in any way that is, directly or indirectly, detrimental to us.
Personal Information.
You agree that neither we nor any of our Representatives shall disclose to you information about
identifiable individuals forming part of the Confidential Information.
Compelled Disclosure.
If you or any of your Representatives receives a request or is legally required to disclose all or
any part of the Confidential Information, you shall (a) immediately notify us of the request or
requirement, (b) consult with us on the advisability of taking legally available steps to resist or
3
narrow the request or lawfully avoid the requirement, and (c) if requested by us cooperate with
us to seek a protective order or other appropriate remedy. If a protective order or other remedy is
not available, or if we waive compliance with the provisions of this section, (x) you or your
Representatives, as the case may be, may disclose to the person requiring disclosure only that
portion of the Confidential Information which you are advised by written opinion of counsel is
legally required to be disclosed, and (y) you shall not be liable for such disclosure unless such
disclosure was caused by or resulted from a previous disclosure by you or any of your
Representatives not permitted by this Agreement.
Return of Documents.
Upon request by us at any time, you shall (a) return promptly to us all physical copies of the
Confidential Information, excluding Notes, then in your possession or in the possession of your
Representatives, (b) destroy all (i) electronic copies of the Confidential Information, and all (ii)
Notes (including electronic copies thereof) prepared by you or any of your Representatives,
including electronic back-ups of the foregoing in a manner that ensures that such Notes may not
be retrieved or undeleted by you or any of your Representatives, and (c) deliver to us a certificate
executed by one of your duly authorized senior officers indicating that the requirements of this
sentence have been satisfied in full.
Process.
We have no obligation pursuant to this Agreement or otherwise to disclose or continue to
disclose or make available Confidential Information to you or any of your Representatives.
No Representations or Warranties by us.
Neither we nor any of our Representatives make any representation or warranty, express or
implied, as to the accuracy, sufficiency or completeness of the Confidential Information. Neither
we nor any of our Representatives shall have any liability whatsoever, under contract, tort, trust
or otherwise, to you or any other person resulting from use of the Confidential Information by
you or any of your Representatives or for omissions from the Confidential Information.
No Property Rights.
The Confidential Information shall at all times remain our property.
Legal Remedy.
We would not have an adequate remedy at law and may be irreparably harmed in the event that
any of the provisions of this Agreement were not performed by you or your Representatives in
accordance with their specific terms or were otherwise breached by you or your Representatives.
Accordingly, we shall be entitled to injunctive relief to prevent breaches of this Agreement and
to specific performance of the terms and conditions of this Agreement in addition to any other
remedy to which we may be entitled at law or in equity.
4
Miscellaneous.
No failure or delay by us in exercising any right, power or remedy under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise of any right, power or remedy under this Agreement.
Your obligations under this Agreement shall survive indefinitely.
If any provision of this Agreement as applied to any party in any circumstance is adjudged by a
court to be invalid or unenforceable, this will in no way affect any other provision of this
Agreement, the application of such provision in any other circumstance, or the validity or
enforceability of this Agreement.
This Agreement constitutes the entire agreement between us pertaining to the subject matter
hereof.
Notices required or permitted to be given under this Agreement shall be in writing and shall be
effectively given if delivered personally or sent by facsimile (i) if to us, to:
Rockwood Spirits International Inc., 5480 Canotek Rd, Suite 21 Ottawa, ON, K1J 9H7, to
info@rockwoodspirits.com Attention: Elliott Gillespie; and (ii) if to you,
Michael Ferchak
International | Managing Partner, Director of Manufacturing
Fusion Glassworks
+1 646-431-0439
www.fusion-glassworks.com
Attention: michael@fusion-glassworks.com
The division of this Agreement into sections and the insertion of headings are for convenience of
reference only and shall not affect the construction or interpretation of this Agreement.
This Agreement shall be governed by and construed in accordance with the laws of Ontario and
the federal laws of Canada applicable therein.
For the purpose of the NDA, the parties have chosen the laws of Ontario and the federal laws of Canada.
In addition to the above, the recipient will not disclose to third parties any design produced in relation
to discussions or contracts between the two parties and will not disclose that Rockwood Spirits
International Inc. is a client of the recipient and related enterprises.
This Agreement shall ensure to the benefit of, and be binding on, each of us and our respective
successors and permitted assigns. Neither of us may assign our respective rights or obligations
under this Agreement without the prior written consent of the other party.
This Agreement may be signed in counterparts and each of such counterparts shall constitute an
original document and such counterparts, taken together, shall constitute one and the same
instrument.
Yours very truly,

ROCKWOOD SPIRITS INTERNATIONAL INC.
By:
Name: Elliott Gillespie
Accepted and agreed as of the date first above written.

FUSION GLASSWORKS
By:
Name: Mr. Michael Ferchak
Title: Managing Partner
EXHIBIT E
NON-DISCLOSURE AGREEMENT
October 2, 2014
Private Label Distillery LLC
16730 E 2ND AVE
AURORA, CO 80011
Attention: Mr. PAUL DUNNING
Re:
Disclosure of Information
Dear Mr. Dunning:

Michael Andrew Brands Inc.(the Recipient or you) wishes to obtain certain information
from us in connection with discussions to enter into a contract for an agreement to produce
custom formulation, blending and engage in the purchase of bulk alcohol supply as well as
contract bottling and packaging. This includes, any eventual contract to undertake such work on
behalf of Rockwood Spirts International Inc. (the Permitted Purpose), all subject to the terms
and conditions set out in this Agreement.
Definitions.
In this Agreement, the term our Representatives means our agents, directors, officers,
employees, representatives, consultants and advisers. The term your Representatives means
your agents, directors, officers, employees, representatives, consultants and advisers.
The term Confidential Information means:
(a)
all information, in whatever form communicated or maintained, that we disclose
to, or that is gathered by inspection by, you or any of your Representatives, whether provided
before or after the date of this Agreement;
(b)
all plans, design, proposals, reports, analyses, notes, studies, forecasts,
compilations or other information, in any form, that are based on, contain or reflect any
Confidential Information regardless of the identity of the person preparing the same (Notes);
and
(c)
any matter relating to (i) this Agreement, and (ii) the disclosure of information by
us to you or your Representatives.
The term Confidential Information does not include any information that:
(a)
is at the time of disclosure to you or thereafter becomes generally available to the
public, other than as a result of a disclosure by you or any of your Representatives in breach of
this Agreement;

2
(b)
is or was received by you on a non-confidential basis from a source other than us
if such source is not prohibited from disclosing the information to you by a contractual, fiduciary
or other legal obligation to us; or
(c)
was known by you prior to disclosure under this Agreement if you were not
subject to any contractual, fiduciary or other legal confidentiality obligation in respect of such
information and such prior knowledge can be proven by written records in your possession prior
to such disclosure.
Provision of Confidential Information.
Subject to the provisions of this Agreement, we shall make such Confidential Information
available to you as we, in our sole discretion, consider advisable in the circumstances, solely for
the Permitted Purpose. Subject to the provisions of this Agreement, you shall, and shall cause
your Representatives to, comply with all of our procedures relating to the provision of
information as we may adopt from time to time.
Non-Disclosure of Confidential Information.
You shall treat confidentially and not disclose, and shall cause your Representatives to treat
confidentially and not disclose, except as permitted herein, any Confidential Information. You
may disclose any of the Confidential Information only to those of your Representatives who need
to know such Confidential Information for the Permitted Purpose. You shall inform your
Representatives of the confidential nature of such Confidential Information and cause each of
your Representatives to treat such Confidential Information confidentially in accordance with
this Agreement and not disclose such Confidential Information except as permitted herein. You
shall be responsible for any breach of this Agreement by any of your Representatives.
Use of Confidential Information.
You shall not use, and shall cause your Representatives not to use, the Confidential Information
for any purpose other than the Permitted Purpose. You shall not use the Confidential
Information in any way that is, directly or indirectly, detrimental to us.
Personal Information.
You agree that neither we nor any of our Representatives shall disclose to you information about
identifiable individuals forming part of the Confidential Information.
Compelled Disclosure.
If you or any of your Representatives receives a request or is legally required to disclose all or
any part of the Confidential Information, you shall (a) immediately notify us of the request or
requirement, (b) consult with us on the advisability of taking legally available steps to resist or
narrow the request or lawfully avoid the requirement, and (c) if requested by us cooperate with
us to seek a protective order or other appropriate remedy. If a protective order or other remedy is
not available, or if we waive compliance with the provisions of this section, (x) you or your
Representatives, as the case may be, may disclose to the person requiring disclosure only that

3
portion of the Confidential Information which you are advised by written opinion of counsel is
legally required to be disclosed, and (y) you shall not be liable for such disclosure unless such
disclosure was caused by or resulted from a previous disclosure by you or any of your
Representatives not permitted by this Agreement.
Return of Documents.
Upon request by us at any time, you shall (a) return promptly to us all physical copies of the
Confidential Information, excluding Notes, then in your possession or in the possession of your
Representatives, (b) destroy all (i) electronic copies of the Confidential Information, and all (ii)
Notes (including electronic copies thereof) prepared by you or any of your Representatives,
including electronic back-ups of the foregoing in a manner that ensures that such Notes may not
be retrieved or undeleted by you or any of your Representatives, and (c) deliver to us a certificate
executed by one of your duly authorized senior officers indicating that the requirements of this
sentence have been satisfied in full.
Process.
We have no obligation pursuant to this Agreement or otherwise to disclose or continue to
disclose or make available Confidential Information to you or any of your Representatives.
No Representations or Warranties by us.
Neither we nor any of our Representatives make any representation or warranty, express or
implied, as to the accuracy, sufficiency or completeness of the Confidential Information. Neither
we nor any of our Representatives shall have any liability whatsoever, under contract, tort, trust
or otherwise, to you or any other person resulting from use of the Confidential Information by
you or any of your Representatives or for omissions from the Confidential Information.
No Property Rights.
The Confidential Information shall at all times remain our property.
Legal Remedy.
We would not have an adequate remedy at law and may be irreparably harmed in the event that
any of the provisions of this Agreement were not performed by you or your Representatives in
accordance with their specific terms or were otherwise breached by you or your Representatives.
Accordingly, we shall be entitled to injunctive relief to prevent breaches of this Agreement and
to specific performance of the terms and conditions of this Agreement in addition to any other
remedy to which we may be entitled at law or in equity.
Miscellaneous.
No failure or delay by us in exercising any right, power or remedy under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise of any right, power or remedy under this Agreement.

4
Your obligations under this Agreement shall survive indefinitely.
If any provision of this Agreement as applied to any party in any circumstance is adjudged by a
court to be invalid or unenforceable, this will in no way affect any other provision of this
Agreement, the application of such provision in any other circumstance, or the validity or
enforceability of this Agreement.
This Agreement constitutes the entire agreement between us pertaining to the subject matter
hereof.
Notices required or permitted to be given under this Agreement shall be in writing and shall be
effectively given if delivered personally or sent by facsimile (i) if to us, to:
Rockwood Spirits International Inc., 5480 Canotek Rd, Suite 21 Ottawa, ON, K1J 9H7, to
info@rockwoodspirits.com Attention: Elliott Gillespie; and (ii) if to you,
16730 E 2ND AVE
AURORA, CO 80011
Attention: Mr. PAUL DUNNING
Email: paul@privatelabeldistillery.com
The division of this Agreement into sections and the insertion of headings are for convenience of
reference only and shall not affect the construction or interpretation of this Agreement.
This Agreement shall be governed by and construed in accordance with the laws of Ontario and
the federal laws of Canada applicable therein.
For the purpose of the NDA, the parties have chosen the laws of Ontario and the federal laws of Canada.
In addition to the above, the recipient will not disclose to third parties any design produced in relation
to discussions or contracts between the two parties and will not disclose that Rockwood Spirits
International Inc. is a client of the recipient and related enterprises.
This Agreement shall ensure to the benefit of, and be binding on, each of us and our respective
successors and permitted assigns. Neither of us may assign our respective rights or obligations
under this Agreement without the prior written consent of the other party.
This Agreement may be signed in counterparts and each of such counterparts shall constitute an
original document and such counterparts, taken together, shall constitute one and the same
instrument.
Yours very truly,

5
ROCKWOOD SPIRITS INTERNATIONAL INC.
By:
Name: Elliott Gillespie
Accepted and agreed as of the date first above written.

PRIVATE LABEL DISTILLERY LLC.
Paul T. Dunning
By:
Name: Paul Dunning
Title: Managing Partner
Signature 1299
EXHIBIT F
Amendment 1
Confidential Non-Disclosure Agreement
This agreement is made between Rockwood Spirits International Inc. (also
registered as the Gold Bar Bottling Company) and Private Label Distillery
LLC.
This agreement is an amendment to the original NDA signed by both parties on
October 2, 2014, it does not replace the original NDA. It is intended to clarify
obligations related to the non-disclosure agreement between both parties.
Project Ref Name: Gold Bar Whiskey
Both parties agree to exercise a high degree of care to safeguard any and all
intellectual property, trade secrets, branding concepts, technical drawings, ideas
and inventions of the information and all or any revealed information herein, from
access or disclosure to any unauthorized person or entity.
This includes:
Contract pricing
Product cost
Product pricing strategies
Product supplier information
Bulk whiskey supply information
Product fabrication/blending/bottling process information
Product origin
Distribution or market information
Marketing strategy
Product labeling
Branding strategy and related imagery
Product design
Corporate ownership structure of the related parties
Public mention of a contract between the two parties
It's a common practice to source whiskey the same way Rockwood is being produced outside of the extracts. Private Label Distillery would never explain the formula or any details about
Rockwood products to another company or person.
The disclosure restrictions listed above do not apply to disclosure required by

related government and regulatory agencies for the purpose of conducting
business on behalf of the contract between both parties.
In the event that any of the shareholders, officers, directors, employees, agents
or representatives of a party should copy, replace, modify or disclose the
confidential information, such as a intellectual property, financial contract
information or public disclosure of a business relationship between the two
parties, this party will be in breach of this confidentiality agreement and therefore
!
1!
will be liable to the other party for damages arising out of the same, as well as
injunctive relief and attorneys fees for any action arising out of this agreement.
This agreement shall be governed by both the laws of the Province of Ontario,
Canada as well as the State of New York, USA. All disputes and matters
whatsoever arising under, or in connection with, or incident to this Agreement
shall be brought before a court of competent jurisdiction in the Province of
Ontario or the State of New York.
Date: July 19, 2015
Date: July 19, 2015
Rockwood Spirits International Inc.

and
Gold Bar Bottling Company
#4588
Paul T. Dunning
By: ____________________
By: _________________________
Paul Dunning
Elliott Gillespie
By: ____________________
Michael Ferchak
2!

Gillespie v. Prestige Royal Liquors - Complaint

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Gillespie v. Prestige Royal Liquors - Complaint

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Case 3:16-cv-02392 Document 1 Filed 05/02/16 Page 1 of 27

UNITED STATES DISTRICT COURT

ELLIOTT GILLESPIE, an individual;

DEMAND FOR JURY TRIAL

Case 3:16-cv-02392 Document 1 Filed 05/02/16 Page 2 of 27

International Inc. (ROCKWOOD SPIRITS) doing business as GOLD BAR

BOTTLE COMPANY and GOLD BAR BOTTLING COMPANY (collectively

Plaintiffs) hereby sue Defendants Prestige Royal Liquors, Corp. (PRESTIGE),

Gabriel Sezanayev a/k/a Gavriyel Sezanayev (SEZANAYEV), Fusion

Glassworks, LLC (FUSION) and Private Label Distillery, LLC (PLD)

(collectively Defendants) and avers the following:

Plaintiff GILLESPIE is an individual who is a resident of Canada and

is president of Gold Bar Whiskey and an innovator in the spirits industry.

the prestigious San Francisco World Spirits Competition, as well as winning

featured by various whiskey/spirit websites and is the most innovative up and

coming product with its unique design.

location at 990 13th St, San Francisco, CA 94130-1222, in California.

Plaintiff GILLISPIE has offices in

Plaintiff ROCKWOOD SPIRITS is a Canadian company with its

principle place of business in Ottawa, Canada. ROCKWOOD SPIRITS is engaged

in the business of design, manufacture, production and sale of products. Plaintiff

GILLESPIE is the President and majority shareholder of ROCKWOOD SPIRITS.

On information and belief, Defendant PRESTIGE is a corporation in

On information and belief, PRESTIGE is a licensee of U.S. Patent No. D750,498

Case 3:16-cv-02392 Document 1 Filed 05/02/16 Page 3 of 27

trademark applications at the United States Patent and Trademark Office.

On information and belief, Defendant SEZANAYEV is a citizen of

On information and belief, Defendant FUSION is a Florida

corporation with a principal place of business at 1322 S.E. 17 th Street, Ft.

assists clients in customized glass bottles, making prototypes, and sourcing

packaging through Chinese manufacturers. On information and belief, the owners

of Defendant FUSION are Michael Ferchak and Paul Dunning.

On information and belief, Defendant PLD is a distillery and bottling

FUSION, from the facilities offices in Colorado and Florida.

Plaintiffs are unaware of the true names and capacities of all

defendants sued here as Does 1 through 10, inclusive, whether individual,

corporate, associate or otherwise, are unknown to Plaintiffs, who therefore sues

named defendants, is responsible in some manner for the occurrences herein

codefendants, and that Plaintiffs' damages as herein alleged, were proximately

caused by the acts and/or omissions of each of them.

At all such times herein mentioned, defendants, each of them, were an

Case 3:16-cv-02392 Document 1 Filed 05/02/16 Page 4 of 27

defendants, or otherwise acting on behalf of each and every remaining defendant

scope of their authorities as an owner, a co-owner, an agent, representative,

ratified the acts of the other co-defendants.

therefore, jointly and severally liable for damages caused to Plaintiffs.

and every one of the remaining defendants.

NATURE OF THE DISPUTE

Defendant PRESTIGE has asserted rights under U.S. Patent No.

D750,498 (the 498 patent) based on certain activity of Plaintiff GILLESPIE,

Defendants PRESTIGE and SEZANAYEV have wrongly accused

jurisdiction of this Court pursuant to 28 U.S.C. 2201-2202 as to the non-

infringement, invalidity, and unenforceability of the 498 patent.

Case 3:16-cv-02392 Document 1 Filed 05/02/16 Page 5 of 27

In this action, Plaintiffs seek a declaration, among other things, that:

directly and indirectly through their agents, breached their nondisclosure

agreements with Plaintiffs by providing Plaintiffs Intellectual Property (IP),

information such as marketing, products, product designs, and product launch

timeline, to SEZANAYEV and PRESTIGE, and possibly others,

an order enjoining Defendants from further unlawful conduct and a judgment

JURISDICTION AND VENUE

This is a civil action regarding allegations of patent infringement

U.S.C. 1331, 1338, 2201, and 2202.

judgment of patent non-infringement, invalidity and unenforceability arising