Professional Documents
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JUN O7 2016
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Plaintiffs,
v.
AMERICAN FISH ATTRACTOR
AND HABITAT, LLC
Defendant.
Case No.
COMES NOW Plaintiff, David King ("Mr. King") and King Outdoor Enterprises, LLLP
("KOE"), by and through counsel, and for their Complaint for Damages and Equitable Relief
against Defendant, American Fish Attractor and Habitat, LLC ("AF AH" or "Defendant"),
respectfully states as follows:
this judicial district. He is the owner of U.S. Patent No. D625, 471 (the '"471 Patent").
2.
3.
laws of the State of Tennessee. Defendant has it principal place of business located at 88
Carriage Hill, Signal Mountain, Tennessee 37377-2331. The registered agent for Defendant
is Corporation Service Company, 2908 Poston Avenue, Nashville, Tennessee 37203-11312.
Defendant has been doing business in, has committed acts, and caused damages in this
judicial district at all times relevant hereto.
4.
that this action arises under the federal Trademark Act of 1946, 15 U.S.C. 1051-1129.
This Court holds supplemental jurisdiction over Plaintiffs' state law trademark claims and
remedies pursuant to 28 U.S.C. 1367.
5.
substantial part of the events giving rise to Plaintiffs' claims occurred in this district.
Further, Plaintiffs' residence and principal place of business are located in this district and
Defendants' products are available in this district.
Factual Background
6.
King and KOE own intellectual property that is incorporated into the
The '471 Patent is titled "Fish Retention Structure" and was filed on August
31, 2009. A true and correct copy of the '471 Patent is attached hereto as Exhibit A and is
incorporated herein by reference.
2
9.
The fish habitat products sold by KOE that are protected by the '471 Patent
are marked by their use of a round mast that have a number of members (or arms) that are
bent at ninety degree angles and inserted into the mast.
10.
provided by KOE with the purchase of the product. A copy of the instruction sheet that is
provided with the KOE MBl habitat is attached hereto as Exhibit B and is incorporated
herein by reference.
11.
trademarks, including the design mark for its logo, which features a fish superimposed over
its distinctive central mast with elongated angled armed fish habitat structure. A copy of
the KOE Trademark is attached hereto as Exhibit C and is incorporated herein by
reference.
12.
The KOE Trademark was registered with the U.S. Patent and Trademark
Office on November 24, 2015. It was fist in use and in commerce on June 6, 2014.
13.
Defendant was formed after its member, Matt Marsden, purchased one of
KOE's Mossback product on or about December 5, 2013. Marsden believed that he could
produce a better version of the product and began making a similar fish habitat himself
based on the Mossback design.
15.
'
),
16.
nearly identical to those of KOE. The construction, assembly, and deployment are copied
nearly directly from the Mossback design.
17.
Defendant states that its "handle design" is patented. However, Plaintiffs can
find no such patents for the handle design belonging to Defendant. See Exhibit E, a copy of
which is attached hereto and is incorporated herein by reference.
18.
Defendant further states that there is a patent pending for its products. See
Exhibit A. However, Plaintiffs can find no such patent pending for Defendant.
19.
superimposed over its distinctive central mast with elongated angled armed fish habitat
structure. The KOE Trademark is as follows:
20.
The logo that Defendant uses is substantially similar to KOE's and violates
habitat structure with a central mast and elongated angled arms. Additionally, Defendant's
mark appears to use the same or substantially same san -serif font as the KOE Trademark.
Defendant's logo is as follows:
21.
Because Mr. Marsden purchased one of the Mossback products, he had actual
knowledge of the Mossback product design and actual knowledge of the KOE Trademark.
Count I - Patent Infrin1:ement under 35 U.S.C. 271
23.
The allegations set forth in the previous paragraphs are re-alleged as if set
U.S. Patent No. D625,471 was duly and legally issued to Plaintiff on
November 24, 2015, and is currently in full force and effect and has been in use since this
date.
25.
Upon information and belief set forth in the foregoing paragraphs, Defendant
has infringed the '471 Patent in this judicial district and elsewhere by making, using,
selling, and/or offering for sale, a product that infringes and/or performs a function that
infringes the '471 Patent..
26.
Defendant's American Fish Tree uses a design nearly identical to that of Mossback. In
addition, the construction, assembly, and deployment are copied nearly directly from the
Mossback design.
27.
habitats usually give, the resemblance between the design of Defendant's fish habitat and
the design set forth in the '471 Patent is such as to deceive the ordinary observer, and
cause an ordinary observer to purchase the Defendant's fish habitat supposing it to be the
product and design set forth in the '471 Patent.
28.
Defendant had actual knowledge of the '471 Patent and has infringed upon
In light of the above facts and allegation, Defendant is and has been infringing
on the '4 71 Patent in violation of 35 U.S.C. 271, by developing, using, offering to sell,
and/or selling their American Fish Tree product in this jurisdiction and others.
30.
The allegations set forth in the previous paragraphs are re-alleged as if set
Plaintiff registered the KOE Trademark with the U.S. Patent and Trademark
Office on November 24, 2015. It was used for commercial purposes for the first time on
June 6, 2014 and has been used continuously thereafter.
33.
The KOE Trademark is in full force and effect and the KOE Trademark is
The KOE Trademark features a fish superimposed over its distinctive central
The logo the Defendant uses also features a fish superimposed over a fish
habitat structure with a central mast and elongated arms. The font used by Defendant's
mark appears to also use the same or substantially same font as the KOE Trademark.
36.
Defendant willfully copied the design of the KOE Trademark and used the
KOE Trademark to market and sell nearly identical products in commerce that has caused
confusion and has been used in a misleading manner.
37.
Further use of Defendant's logo that infringes upon the KOE Trademark will
The allegations set forth in the previous paragraphs are re-alleged as if set
Plaintiff has used the KOE Trademark for commercial purposes since at least
The KOE Trademark features a fish superimposed over its distinctive central
The logo Defendant uses also features a fish superimposed over a fish habitat
structure with a central mast and elongated arms. The font used by Defendant's mark
appears to also use the same or substantially same font as the KOE Trademark.
44.
Defendant willfully copied the design of the KOE Trademark and used the
KOE Trademark to market and sell nearly identical products in commerce that causes
market confusion and is used in a misleading manner.
45.
conduct such to warrant an award of treble damages, attorney's fees, and costs as proper.
47.
Further use of Defendant's logo that infringes upon the KOE Trademark will
48.
The allegations set forth in the previous paragraphs are re-alleged as if set
The KOE Trademark is famous in the fishing industry, specifically in the State
of Arkansas.
50.
The mark of Defendant uses the substantially same font and also features a
fish superimposed over a fish habitat structure with a central mast and elongated arms.
This mark has been in use since Defendant was formed on or about February 3, 2015
51.
The fact the KOE Trademark has acquired distinctive meaning within the
State of Arkansas, and the high degree of recognition of the KOE Trademark in the industry,
Defendant's mark has diluted the distinctive quality of the KOE Trademark.
52.
8.
E.
F.
Any and all other relief that the Court may deem proper.
Respectfully submitted,
DAVID KING and KING OUTDOOR
ENTERPRISES, LLLP, Plaintiffs
By:
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USOOD625471S
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King
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Filed:
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( 58)
LOC (9) C l. ... ....... ............. .... ....... ...... ..... .... 30-02
U.S. C l. ...... ........................ ...... .... ............. D30/106
Field of Classification Search .... ... . D30/ l Ol - l 02,
D30/ l06, 199; l 19/207- 208, 219, 22 1- 223,
11 9/ 256, 269; 405/23, 25, 27, 29, 33; 446/105- 106,
446/ 11 7, 124- 126; D22/l 99
See application fi le for complete search history.
US D625,471 S
** Oct. 12, 2010
Patent No.:
Date of Patent:
6,43 1,792
6,523 ,497
6,905 ,2S7
6,978.735
7,097 ,385
D607 ,0S2
2003i0000480
2004i0 168649
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Doolaege .... ... .. ...... ..... 11 9/2 19
Yeager ............. .. ... ..... 11 9/22 1
Tabler ..... .............. ..... . 40 5/29
Ha rper el al. .... .. ........ D22/ 199
Jenkin s ..... ..... ... ....... ... 11 9/22 1
ll arpcr el al. ........ ..... .. 11 9122 1
References Cited
(56)
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Exhibit A
U.S. Patent
Sheet 1 of 5
FIG. 1
US D625,471 S
U.S. Patent
Sheet 2 of 5
TOP
FIG.2
US D625,471 S
U.S. Patent
Sheet 3 of 5
FIG. 3
Bottom
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U.S. Patent
US D625,471 S
Sheet 4 of 5
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ASSEMBLY INSTRUCTIONS
Read ALL instructions carefully prior to assembling your MOSS BACK FISH ATTRACTOR.
DO NOT place assembled FISH ATTRACTOR in swimming areas or where it might be a
hazard to navigation.
Check your local and state regulations for laws concerning placement of structure.
DO NOT step or stand on compc:inents of FISH ATTRACTOR.
STEP 1 Carefully remove FISH ATTRACTOR from carton.
STEP 2 Remove "V" shaped "Branches" and cable from PVC tube.
STEP 3 With PVC tube standing on top end, (fhe TOP part of the structure is where bolt!wingnut are taped.) starting in the
middle of the tube and working towards the end, begin placing "Branches" through both "V" shaped cut-outs. (You can vary
the arriount of "Branch" sticking out of either side.)
STEP 4 After reaching the end of the Tube, carefully turn partially assembled FISH ATTRACTOR over and repeat step 3, except for
Vertical placement, leave out first branch.
Assembling Cables for Horizontal Placement: (For horizontal assembly, Nylon Bolt and Locking Wingnut are not needed.
Leave cable off if there is no current in fishing location.)
STEP 5 Take the large looped end of cable and run through middle bait fish holes. Pull loop through and insert attachment end
through loop (Fig.1). Pull tight-You are now ready to attach weight as mentioned in MossBack Tips.
Assembling Cables for Vertical Placement (fhe TOP part of the structure is where bott/wingnut are taped.)
STEP 5 Hold larger looped end of cable and insert loop down in pipe. Find hole just below the first "V" cut out, and partially
insert 5" bolt (Fig.2). Arrange loop in pipe where bolt will insert through loop and continue inserting bolt and attach wingnut.
Do not over tighten and distort shape of pipe. Take one of the branches and start into the "V" cut out (Fig.3). Lift up on cable
and slide branch through loop. Branch and bolt should now be through loop (fig.4).
Exhibit B
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FISH ATTRACTORlM
ASSEMBLY INSTRUCTIONS
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Read ALL in.structions carefully prior to assembling your MOSS BACK FISH ATTRACTOR.
DO NOT place assembled ASH ATTRACTOR in swimming areas or where it might be
a hazard to navigation.
Check your local and state regulations for laws concerning placement of structure.
DO NOT step or stand on components of FISH ATTRACTOR.
For making two (2) separate five foot trees, please refer to instructions on MB 1.
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NOTE: After you have put the limbs through the pipe and you feel some of the
limbs are too loose to stay in position, use the 3" inch plastic wedges provided
in your hardware pack to secure them. Slide one wedge per limb into the slot
in the pipe at a 45-degree angle, on the top side of each limb that is loose. You
can then push the wedges in with your hand or tap them in place with a
hammer or rubber mallet.
NOTE: After you have put the limbs through the pipe and you feel some of the
limbs are too loose to stay in position, use the 3" inch plastic wedges provided
in your hardware pack to secure them. Slide one wedge per limb into the slot
in the pipe at a 45-degree angle, on the top side of each limb that is loose. You
can then push the wedges in with your hand or tap them in place with a
hammer or rubber mallet.
NOTE: After you have put the limbs through the pipe and you feel some of the
limbs are too loose to stay in position, use the 3 inch plastic wedges provided
in your hardware pack to secure them. Slide one wedge per limb into the slot
in the pipe at a 45-degree angle, on the top side of each limb that is loose. You
can then push the wedges in with your hand or tap them in place with a
hammer or rubber mallet.
11
NOTE: After you have put the limbs through the pipe and you feel some of the
limbs are too loose to stay in position, use the 3" inch plastic wedges provided
in your hardware pack to secure them. Slide one wedge per limb into the slot
in the pipe at a 45-degree angle, on the top side of each limb that is loose. You
can then push the wedges in with your hand or tap them in place with a
hammer or rubber mallet.
NOTE: After you have put the limbs through the pipe and you feel some of the
limbs are too loose to stay in position, use the 3" inch plastic wedges provided
in your hardware pack to secure them. Slide one wedge per limb into the slot
in the pipe at a 45-degree angle, on the top side of each limb that is loose. You
can then push the wedges in with your hand or tap them in place with a
hammer or rubber mallet.
iMOSS
~~
Reg. No. 4,857,670
Registered Nov. 24, 2015
FISH HABITAT
SERVICE MARK
FIRST USE 6-6-20 14; JN COMMERCE 6-6-2014.
PRINCIPAL REGISTER
fOR: ONLINE RETA IL STORE SERVICES FEATURlNG ARTIFICIAL FJSH HABITATS, 1N
CLASS 35 (US. CLS. 100, 10 1 AND 102).
FIRST USE 6-6-20 14; JN COMMERCE 6-6-2014.
NO CLA IM IS MADE TO THE EXCLUS IVE RIGHT TO USE "FTSHHABITAT",APARTfROM
TI-JE MARK AS SI !OWN.
THE MARK CONSISTS OF THE WORDS "MOSSBACK" ABOVE "FISH HABI1AT" IN A
STYLIZED FONT BESIDE AN IMAGE OF FISH AROUND A TREE-LIKE STRUCTURE.
SER. NO. 86-177 .044 , FlLED 8-26-2014.
Exhibit C
STATE OF TENNESSEE
Tre Hargett, Secretary of State
Division of Business Services
William R. Snodgrass Tower
312 Rosa L. Parks AVE , 6th FL
Nashville , TN 37243-1102
Filing Information
Name:
General Information
SOS Control #
Filing Type:
Status:
Duration Term:
Managed By:
000788744
Lim ited Liability Company - Domestic
02/13/2015 10:33 AM
Active
Perpetual
Manager Managed
Formation Locale :
Date Formed:
Fiscal Year Close
Member Count:
TENNESSEE
02/13/2015
12
1
Principal Address
88 CARRIAGE HL
SIGNAL MOUNTAIN , TN 37377-2331
The following document(s) was/were filed in th is office on the date(s) indicated below:
Date Filed
Filing Description
Image#
90056-1702
Date
Expires
Exh ibit D
D
About Us
Attractor &
c1
contolled descend;
Exhibit E
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