Complaint With Jury Demand

Case 1:16-cv-03061-CMA-NYW Document 1 Filed 12/14/16 USDC Colorado Page 1 of 23
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
Civil Action No.
SPYDERCO, INC.,
a Colorado corporation,
Plaintiff,
v.
KEVIN, INC., d/b/a SHAWMUT DISTRIBUTORS,
d/b/a KITTERY TRADING POST, and
d/b/a KTP GUN EXCHANGE,
a Maine corporation,
Defendant.
COMPLAINT WITH JURY DEMAND
Plaintiff Spyderco, Inc. ("Spyderco") files this Complaint against Defendant Kevin, Inc.
("Kevin"), d/b/a Shawmut Distributors ("SD"), d/b/a Kittery Trading Post ("KTP"), and d/b/a KTP
Gun Exchange ("KTPGE"), alleging as follows:
I.
1.
THE PARTIES
Spyderco is a Colorado corporation, having its principal place of business at 820
Spyderco Way, Golden, Colorado 80403.

2.
Upon information and belief, Kevin is a Maine corporation in good standing that
owns and operates retail stores and affiliated businesses. The President and a Director of Kevin is
Kevin F. Adams. Kevin's current corporate Treasurer is David Labbe. Adams and Labbe both
office at 301 U.S. Route 1, Kittery, Maine 03904, P.O. Box 904, Kittery, Maine 03904.
3.
Kevin is subject to process by serving its Registered Agent, Philip H. Gleason, who
is located at Bernstein Shur, Sawyer & Nelson, P.A., 100 Middle Street, West Tower, Portland,
Maine 04104. Kevin is also subject to process by serving either Adams or Labbe at their business
office.
4.
KTP is an assumed name of Kevin. (See Ex. A, incorporated herein by this
reference). Through KTP, Kevin operates a brick and mortar store in Kittery, Maine and an
interactive website that sells sporting goods nationally and internationally. That website has a
domain of www.kitterytradingpost.com, is owned by Kevin through KTP, was first established in
1996, was last updated in 2015, and lists Labbe as site administrator. Information listed on the
website and its interactive functionality is incorporated herein by this reference.
5.
KTPGE is an assumed name of Kevin. (See Ex. B, which is incorporated herein by
this reference). Kevin operates KTPGE to buy and sell used guns nationally through use of an
interactive website. That website has a domain of www.ktpguns.com, is owned by Kevin through
KTP, was first established in 1998, was last updated in 2015, and lists Labbe as site administrator.
Information listed on the website and its interoperability functionality is incorporated herein by
this reference.
6.
SD is an assumed name of Kevin. (Ex. C, incorporated herein by this reference.)
Kevin operates SD to purchase products to be sold by KTP and KTPGE and for perhaps other of
its business units.
II.
7.
JURISDICTION AND VENUE
This is an action arising from Kevin's willful counterfeiting of Spyderco's federally
registered trademarks, willful infringement of Spyderco's federally registered and common-law

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trademarks, violation of the Colorado Consumer Protection Act ("C.C.P.A."), civil conspiracy,
misappropriation of business values, commercial disparagement and punitive damages under
Colorado Statutory law.
8.
This Court has jurisdiction over the subject matter of this action pursuant to 15
U.S.C. 1121 and 28 U.S.C. 1331 and 1338. The Court has supplemental jurisdiction over
Spyderco's state law claims under 28 U.S.C. 1367, as they are so related to the federal claims
that they form part of the same case or controversy.
9.
Kevin has general minimum contacts with this judicial district by transacting
business within Colorado, including by purchasing knives from Spyderco for resale, and through
operation of the interactive www.kitterytradingpost.com and www.ktpguns.com websites, which
upon information and belief, have resulted in numerous commercial transactions with others in
addition to Spyderco, who reside in Colorado. Further, Kevin's knowing and blatant sale of
counterfeit Spyderco knives caused Kevin to reasonably anticipate being subject to jurisdiction in
Spyderco's domicile state, Colorado. Personal jurisdiction exists over Kevin.
10.
Venue over this action is proper in this Court under 28 U.S.C. 1391(b) and (c).
III.
GENERAL ALLEGATIONS
A.
Spyderco's Intellectual Property
11.
Spyderco is engaged in the business of, among other things, designing, developing,
manufacturing and distributing knives and knife accessories.
Many of these products are
manufactured at Spyderco's Golden, Colorado facility, and all its business operations occur out of
that facility. Spyderco and its products are recognized by the knife industry as being among the
very best in quality and distinctiveness in the world. (See Ex. D, which is incorporated herein by
this reference.) Spyderco's business and product reputation are its most prized business assets.
12.
One of Spyderco's most recognized and iconic knives is known as the Military and
that product name is included on packaging and marketing collateral for the product. Information
about
that
product
is
listed
on
Spyderco's
website
at
https://www.spyderco.com/catalog/details.php?product=19, and that information is incorporated

herein by this reference. These knives come in a variety of styles and have been sold for more
than a decade. Relevant information about the knife and its selling price is set forth below:
13.
A second very popular knife sold by Spyderco is known as the Para-Military and
that product name is included on packaging and marketing collateral for the product. Information
about
that
knife
is
listed
on
Spyderco's
website
at
https://www.spyderco.com/search/index.php, and that information is incorporated herein by this

reference. The knife also comes in a variety of models and has been sold for more than a decade.
Relevant information about the knife is reproduced below:
14.
Most, but not all, Military and Para-Military knives are specially manufactured
with high quality Crucible CPM S30V steel (and the quality of this steel is touted as important on
the Spyderco website, at www.spyderco.com/cataloglist.php?blade=cmp%20S30V).
That
specific steel is often used as it has qualities prized by military, first responders and others who
find themselves in situations that require constant critical use of cutting tools. In order that these
professionals can know that their cutting tool is made of the highest quality steel and they can be
confident they are entering an uncertain field with a needed tool, Spyderco marks the blade of all
authentic Spyderco Military and Para-Military knives that are made with CPM S30V steel with
the designation "CPM S30V."
15.
Spyderco also, for some years, has marked and continued to mark each authentic
Military and Para-Military knife with the location of its manufacture, "Golden, CO, USA, Earth."
16.
The manufacturer's suggested retail price ("MSRP") for authentic Spyderco
Military branded knives is between $259.95 and $279.95, and the MSRP for an authentic ParaMilitary branded knife is between $204.95 and $224.95.
B.
Spyderco' s Relevant Federally Registered Trademarks
17.
Spyderco is the owner of now incontestable U.S. Trademark Registration Number
1,965,458 in International Class 8 (U.S. Classes 23, 28 and 44) for folding knives (the "Spyderco
Mark"). A true and accurate copy of the Spyderco Mark registration is attached hereto as Ex. E,
which is incorporated herein by this reference. Based upon Spyderco's continuous non-interrupted
use of that trademark for years in interstate commerce, relevant consumers have come to associate
it exclusively with Spyderco, who thus also acquired strong common law trademark rights in and
to the Spyderco Mark long before Kevin, who without authorization, used the identical mark on
visually identical knives.
18.
Spyderco is also the owner of now incontestable U.S. Trademark Registration
Number 1,957,810 in International Class 8 (U.S. Classes 23, 28 and 44) for knives (the "Bug
Mark"). A true and accurate copy of the Bug Mark registration is attached hereto as Ex. F, which
is incorporated herein by this reference. Based upon Spyderco's continuous non-interrupted use
of that trademark for years in interstate commerce, relevant consumers have come to associate it
exclusively with Spyderco, who thus acquired strong common law trademark rights in and to the
Bug Mark long before Kevin, who without authorization, used the identical mark on visually
identical knives.
19.
Spyderco is the owner of now incontestable U.S. Trademark Registration Number
2,033,317 in International Class 8 (U.S. Classes 23, 28 and 44) for folding knives (the "Round
Hole Mark"). A true and accurate copy of the Round Hole Mark registration is attached hereto as
Ex. G, which is incorporated herein by this reference. Based upon Spyderco's continuous noninterrupted use of that trademark for years in interstate commerce, relevant consumers have come
to associate it exclusively with Spyderco, who thus acquired strong common law trademark rights
in and to the Round Hole Mark long before Kevin, who without authorization, used the identical
mark on visually identical knives.
20.
The Spyderco Mark, the Bug Mark and the Round Hole Mark will collectively be
referred to below as the "MARKS."
C.
Spyderco' s Relevant Common Law Trademarks
21.
Spyderco has marketed and sold a variety of unique folding knife products for at
least a decade under and in connection with the trademark MILITARY. These knives have met
with significant commercial success and consumer recognition. Because of this success and years
of superior product development and customer service, Spyderco has developed substantial
significant consumer recognition, trust, loyalty and goodwill in and to its successful MILITARY
trademark. Based upon Spyderco's continuous non-interrupted use of that designation for more
than a decade in interstate commerce, relevant consumers have come to associate it exclusively
with Spyderco, who acquired strong common law trademark rights in and to MILITARY long
before Kevin, who without authorization, used the identical mark on visually identical knives.
22.
Spyderco has marketed and sold a variety of unique folding knife products since
for at least a decade under and in connection with the designation PARA-MILITARY. These
knives have met with commercial success and consumer recognition. Because of this success and
years of superior product development and customer service, Spyderco has developed substantial
significant consumer recognition, trust, loyalty and goodwill in and to its successful PARAMILITARY brand. Based upon Spyderco's continuous non-interrupted use of that brand for more
than a decade in interstate commerce, relevant consumers have come to associate it exclusively
with Spyderco, who has thus acquired strong common law trademark rights in and to PARAMILITARY long before Kevin, who without authorization, used the identical mark on visually
identical knives.
23.
Spyderco has marketed and sold a variety of unique folding knife products for
several years under and in connection with the symbol

10
. These knives have met with
commercial success and consumer recognition. Because of this success and years of superior
product development and customer service, Spyderco has developed substantial significant
consumer recognition, trust, loyalty and goodwill in and to its successful
symbol. Based
upon Spyderco's continuous non-interrupted use of that symbol for years in interstate commerce,
relevant consumers have come to associate it exclusively with Spyderco, who thus acquired strong
common law trademark rights in and to the
long before Kevin, who without authorization,
used the identical mark on visually identical knives.

24.
Spyderco has marketed and sold a variety of unique folding knife products for years
under and in connection with the symbol
. These knives have met with commercial success
and consumer recognition. Because of this success and years of superior product development and
customer service, Spyderco has developed substantial significant consumer recognition, trust,
loyalty and goodwill in and to its successful
symbol. Based upon Spyderco's continuous
non-interrupted use of that symbol for more than a decade in interstate commerce, relevant
consumers have come to associate it exclusively with Spyderco. Spyderco has thus acquired
strong common law trademark rights in and to the
long before Kevin, who without
authorization, used the identical mark on visually identical knives.

25.
The trademarks discussed in paragraphs 21-25 hereof will collectively be referred
to below as the "Common-Law Trademarks."
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D.
Kevin and its Infringing Conduct
26.
Kevin owns several divisions that operate under the assumed names KTP and
KTPGE, divisions that buy and sell sporting goods nationally. Included within products purchased
for resale by Kevin are tens of thousands of dollars' worth of knives from Spyderco, including
Military and Para-Military knives. Kevin is a family business owned by the Adams family and,
upon information and belief, generates more than $75,000,000 in revenues and $25,000,000 in
pre-tax profits annually.
27.
Kevin operates a computerized point of sale cash register system ("POS") at its
Kittery, Maine brick and mortar retail store. Customers from all over the northeast United States
stop and visit the store as they are traveling to and from ME, as the store is literally on the boarder
of NH, MA and ME. For that system to operate properly, Kevin assigns unique stock keeping unit
("SKU") numbers to each unique product Kevin authorizes to be sold through the store. Those
SKU numbers must also specifically be correlated to specific products and to the price to be
charged for the product.
28.
Kevin acquired some yet unknown quantity of knives that were listed by Kevin its
POS system as SKU 1027857, which sells for $75, and 1022957, which sells for $80. (See
redacted cash register receipt dated 10/16/16 attached as Ex. H, which is incorporated herein by
this reference.) These knives were sold by Kevin through its brick and mortar store without a box,
being provided to the purchasing customer in a brown paper bag marked with KITTERY
TRADING POST. (See bag provided with 10/16/16 purchase of knives attached as Ex. I, which
is incorporated herein by this reference.) The two purchased knives include a price tag stating
CLONE/PARAMILITARY and CLONE MILITARY:
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(See Ex. J, which is incorporated herein by this reference.)

29.
Based upon the sales price and other indicia, Spyderco believed that the knives
purchased at Kevin's store were not authentic, as authentic Spyderco Para-Military and Military
knives, which correspond to the CLONE/PARAMILITARY and CLONE MILITARY knives and
offered by Kevin for $75 and $80 a unit, respectively, have a Spyderco MSRP of $224.95 and
$259.95, respectively. To confirm that the knives purchased from Kevin's store were not authentic,
Spyderco had an independent metallurgist test the blade of each to determine if they were, as
indicated on the knife blades, made of CPM S30V steel. (See Ex. K, Declaration of Josh Belt,
incorporated by reference herein.) The results of that testing confirmed that the knives advertised
and sold by Kevin were not manufactured by Spyderco in Golden, Colorado and are not authentic.
30.
The knives being offered for sale by and being sold by Kevin as Spyderco knives
are made of inferior materials and have an inferior build quality. These knives will not perform
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as advertised (i.e. the blades are not made of CPM S30V steel) and will fail in use much more
quickly than an authentic Spyderco Military or Para-Military knife that has a blade made of CPM
S30V steel. When they fail early and/or do not perform as expected, the original purchaser and/or
a subsequent purchaser, another acquirer or just a person viewing unflattering use of the knives,
will think less of Spyderco and the quality of Spyderco products. Spyderco's reputation is a prized
business asset, and the reputational loss visited upon Spyderco by Kevin's sale of the knives, which
is completely out of Spyderco's control, could result in significant reputational damage to
Spyderco, its brand and its products.
31.
35 U.S.C. 1116 (d)(1)(B)(i) & (ii) defines a counterfeit designation as any symbol
used on a good sold in interstate commerce that is identical to or substantially indistinguishable

from a symbol that is registered on the Principle Register of the United States. Knowledge of the
registration is irrelevant.
The American College Dictionary of the English Language, 2000,
similarly defines "counterfeit" as "to make a copy of, usually with the intent to defraud," and
relevantly defines "clone" as "one that copies or closely resembles another, as in appearance or
function."
(See Ex. L, which is incorporated herein by this reference.) The CLONE/
PARAMILITARY KNIFE and CLONE/MILITARY KNIFE sold by Kevin include the identical
SPYDERCO MARK, BUG MARK, and ROUND HOLE MARK, all of which are Registered on
the Principle Trademark Register of the United States. Kevin's unauthorized advertisement, offer
for sale and sale of those knives thus constitutes distribution in interstate commerce of counterfeit
goods under 15 U.S.C. 1117(c). Those knives will hereafter be referred to as the "Counterfeit
Knives."
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32.
The Counterfeit Knives have been offered for sale and sold since at least between
September 2016 and November 2016 and look identical to authentic Spyderco Military and ParaMilitary knives, but they were not manufactured or distributed by Spyderco. Rather, and upon
information and belief, the Counterfeit Knives, and more like them, were likely acquired by Kevin
from a Chinese distributer for approximately $10 per unit. If that acquisition price is accurate,
Kevin has been and is continuing to generate an obscene (approximately 800%) profit from its
illegal and unauthorized sale of the Counterfeit Knives. The only reason Kevin can generate this
obscene profit is because Spyderco spent decades generating a strong product offering, demand
for its high quality goods and a near-cult following for its Military and Para-Military knives. Kevin
is free riding on Spyderco's corporate and product reputations to generate unbridled corporate gain
and is undercutting the MSRP of authentic Spyderco Military and Para-Military knives by
approximately 300% to achieve its goal.
33.
Under 15 U.S.C. 1117(c), Kevin's advertising, offer for sale and sale of the
Counterfeit Knives is willful. Kevin specifically chose to use the term "CLONE" when deciding
how to mark the knives and in deciding how those knives would be represented in its official POS
system and on its register tapes. That term is commonly defined as "one that copies or closely
resembles another, as in appearance or function." Kevin was thus aware of exactly what it was
doing when it chose to offer for sale through its store the Counterfeit Knives. In short, Kevin
knowingly and wantonly chose to offer and sell the Counterfeit Knives and to damage, perhaps
irreparably, Spyderco's superior, perendinate and valuable reputational rights reflected in the
MARKS and the Common-Law Trademarks.
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34.
Kevin's willful counterfeiting and infringement make this an exceptional case,
entitling Spyderco to: (1) an award of treble actual damages in the form of Spyderco's lost profits
and Kevin's gross profits due to infringement of Spyderco's Common-Law Trademarks under 15
U.S.C. 1117(a); (2) an award of attorney's fees and costs (including expert costs) under 15 U.S.C.
1117(a) for infringement of Spyderco's MARKS and Common-Law Trademarks; (3) an award
of compensatory damages to cover a national corrective advertising campaign that Spyderco must
undertake to advise the purchasing public about the hazards of acquiring a counterfeit Military or
Para-Military knife, under 15 U.S.C. 1117(a); (4) an award of prejudgment and post judgement
interest under 15 U.S.C. 1117(a) and (b) for infringement of Spyderco's federally registered and
Common-Law Trademarks; and, perhaps most significantly, (5) an award from this Court of
statutory damages for willful counterfeiting under 15 U.S.C. 1117(c)(2) of not less than $600,000
or more than $2,000,000 per counterfeited mark (3 in total), or a total award of statutory damages
of not less than $600,000 or more than $6,000,000 in statutory damages.
35.
The Counterfeit Knives also include on each of their blades "Golden, CO, USA,
Earth" and "CPM S30V," indicating to reasonable consumers that the products were manufactured
in Golden, Colorado and that the blade was made of CPM S30V steel. These markings are literally
false and a willful fraud upon both Spyderco and the consuming public. Sale of the Counterfeit
Knives with the false product ingredient and location of manufacture markings cause special/actual
damages, and reputational damages. The reputation damages have been delineated above. The
actual (special) damages flow from a loss of product sales and profits that would typically flow
from sales of authentic products. For instance, in this case, Kevin has purchased for resale from
Spyderco authentic Spyderco Military and Para-Military knives, but is currently selling through
16
its retail store the Counterfeit Knives that are identical in appearance to the Counterfeit Knives.
Had Kevin not carried in its store the Counterfeit Knives, but instead carried authentic knives made
of quality steel in Colorado, customers who wanted knives that looked like and were marked to
indicate they were or were as good as authentic Spyderco knives would have purchased the
authentic Spyderco knives and Spyderco would have generated its usual profit. That has not
occurred, causing actual damage to Spyderco.
IV.
FIRST CLAIM FOR RELIEF
(Federal Trademark Infringement of all Marks
Trademark Under 43(a) of the Lanham Act, 15 U.S.C. 1125(a))
36.
Spyderco incorporates paragraphs 1 through 35 as though fully set forth herein.
37.
Without Spyderco's consent, Kevin has used, on and in connection with the sale,
offering for sale, distribution and advertising of its Counterfeit Knives Spyderco's MARKS and
Common-Law Trademarks.
38.
These acts constitute trademark infringement and have been committed with the
intent to cause confusion, mistake, or deception, and are in violation of 15 U.S.C. 1125(a).
39.
As a direct and proximate result of Kevin's infringing activities, Spyderco is entitled
to recover Kevin's unlawful profits and Spyderco's damages under 15 U.S.C. 1117(a).
40.
Kevin's infringement of Spyderco's MARKS and Common-Law Trademarks is
exceptional and intentional, entitling Spyderco to treble the amount of its damages and Kevin's
profits, and to an award of attorneys' fees and costs under 15 U.S.C. 1117(a).
41.
Spyderco is entitled to injunctive relief pursuant to 15 U.S.C. 1116(a).
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V.
SECOND CLAIM FOR RELIEF
(Willful Federal Counterfeiting, 35 (a) & (c)
of the Lanham Act, 15 U.S.C. 1117 (a) & (c))
42.
43.
Without Spyderco's consent, Kevin has used, on and in connection with the sale,
offering for sale, distribution and advertising of its Counterfeit Knives designations that are
identical to Spyderco's MARKS.
44.
These acts constitute willful trademark counterfeiting in violation of 15 U.S.C.
1117 (a) and (c).

45.
As a direct and proximate result of Kevin's activities, Spyderco is entitled to
recover, among other things, at least $600,000 in statutory damages under 15 U.S.C. 1117(c).
46.
Kevin's counterfeiting renders this case exceptional and intentional, entitling
Spyderco to, among other things, an award of attorneys' fees under 15 U.S.C. 1117(a).
47.
Spyderco is entitled to injunctive relief pursuant to 15 U.S.C. 1116(a).

VI.
THIRD CLAIM FOR RELIEF
(Violation of the C.C.P.A., Colo. Rev. Stat. 6-1-101)
48.
49.
Through the acts complained of herein, Kevin has violated at least sections (a)-(e)
of Colo. Rev. Stat. 6-1-105 and thus engaged in unfair and deceptive trade practices.
50.
These acts occurred during and as part of Kevin's actual and continuing business.
51.
The complained of acts significantly impact the public who purchased the
Counterfeit Knives in that they or those acquiring the products from them acquired inferior
products under false pretenses that could cause grave bodily harm to those individuals or others.
While the total number of consumers who may be affected by the inferior Counterfeit Knives may
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be low when compared to the total number of authentic Spyderco knives that have been sold, the
damage that could be caused by a failure of a Counterfeit Knife could be very significant (perhaps
including death), and this is the type of impact for which the C.C.P.A. was designed to address.
52.
Spyderco has suffered actual and reputational injury due to Kevin's fraudulent and
deceitful conduct as outlined herein, and Kevin has intentionally and willfully caused that injury.
53.
Spyderco is entitled to injunctive relief and monitory relief on this claim in the form
of treble actual damages and corrective advertising dollars, an award of fees and costs and an
award of prejudgment interest.
VII.
FOURTH CLAIM FOR RELIEF

(Commercial Disparagement)
54.
55.
The false statements etched into the Counterfeit Knives, along with counterfeiting
of the MARKS and infringement of the Common-Law trademarks, constitute actionable willful
and wanton commercial disparagement: (1) the steel designation and place of manufacture
statements are literally false; (2) these statements have been and are continuing to be published to
customers and potential Kevin customers; (3) Kevin's Counterfeit Knives are inferior to authentic
Spyderco Military and Para-Military knives and as such their sale by Kevin and use by Kevin's
customers and others is derogatory to (i.e. detract from or diminish) Spyderco's business in general,
Spyderco's rights in and thus title to its registered and Common-Law Trademarks and to the quality
of products sold under those Trademarks, as well as to the quality of Spyderco's reputation,
generally; (4) by use of "CLONE" on the Counterfeit Knives themselves and the POS system,
Kevin shows it intended to cause harm to Spyderco's pecuniary interest (in the form of diverted
sales) and recognized or should have recognized that it was likely to diminish Spyderco's
19
pecuniary interests; (5) Kevin had actual malice (i.e. intent, without just cause or reason, to commit
a wrongful act that will result in harm) when it chose to advertise and sell the Counterfeit Knives,
knowing they were not authentic Spyderco products, but which were marked with Spyderco's
Common-Law and registered Trademarks; (6) thus, causing special damages in the form of lost
profits on the sale of authentic Spyderco Military and Para-Military knives.
56.
Because of Kevin's wrongful conduct, Spyderco has suffered significant injury.
57.
As a direct result of Kevin's actions, Spyderco has been and will continue to be
irreparably injured because it no longer has complete control of its reputation and the goodwill
that has been painstakingly developed in the products and the federally registered and CommonLaw Trademarks. Spyderco will be forced to correct confusion in the marketplace resulting from
Kevin's counterfeiting, even after injunctive relief is granted.
58.
Kevin's counterfeiting is causing Spyderco damages in amounts to be proven at
trial.
VIII. FIFTH CLAIM FOR RELIEF
(Misappropriation of Business Value)
59.
60.
Spyderco has expended significant resources, including skill, time, effort, and
money, in acquiring and developing the federally registered and Common-Law Trademarks and
the goodwill associated therewith.
61.
Spyderco has acquired substantial business values in the federally registered and
Common-Law Trademarks, which are under Colorado law a protectable business value of
Spyderco.
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62.
Through its blatant counterfeiting of the federally registered and Common-Law
Trademarks and products, Kevin has wrongfully appropriated the skill, time, effort, and money
that Spyderco has invested in its products and the federally registered and Common-Law
Trademarks and the goodwill associated therewith.
63.
Because of Kevin's wrongful conduct, Spyderco has suffered significant injury.
64.
As a direct result of Kevin's actions, Spyderco has been and will continue to be
irreparably injured because it no longer has complete control of its reputation and the goodwill
that has been painstakingly developed in the products and the federally registered and CommonLaw Trademarks. Spyderco will be forced to correct confusion in the marketplace resulting from
Kevin's counterfeiting, even after injunctive relief is granted.
65.
Kevin's counterfeiting is causing Spyderco damages in amounts to be proven at
trial.
IX.
SIXTH CLAIM FOR RELIEF

(Common Law Civil Conspiracy)
66.
67.
Kevin conspired with its employees, officers and directors and with the individual
or entity from which it acquired the Counterfeit Knives to resale the Counterfeit Knives at a
significant profit.
68.
At least two of those individuals and/or entities agreed to that course of conduct,
through the programing of the POS system, placement of the tags upon the Counterfeit Knives and
the subsequent advertising and sale of the Counterfeit Knives.
69.
Kevin and its co-conspirators actions have caused damage to Spyderco, as outlined
herein.
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X.
SEVENTH CLAIM FOR RELIEF
(Punitive Damages, Colo Rev. Stat. 13-21-102 )
70.
71.
Pursuant to Colorado statute, when compensatory damages are assessed by the
jury, the jury may, in addition, award reasonable exemplary damages against a defendant when it
finds that the plaintiff's injury "is attended by circumstances of fraud, malice, or willful and wanton
conduct." When awarded, exemplary damages are intended to punish a wrongdoer and to set an
example for others, not to compensate the victim for the harm done to him or her.
72.
Kevin has here acted with malice, willfully, wantonly and fraudulently.
Accordingly, Spyderco is entitled to an award of punitive damages

XI.
PRAYER FOR RELIEF
WHEREFORE, Spyderco prays that the Court enter an Order for Judgment as follows:
A.
That Kevin has willfully counterfeited the MARKS;
B.
That Kevin has willfully infringed the MARKS and Common-Law Trademarks;
C.
That Kevin, and its respective agents, servants, officers, directors, employees and
all persons acting in concert with it, directly or indirectly, be permanently enjoined from
counterfeiting, infringing, inducing others to counterfeit, infringe or contribute to the
counterfeiting or infringement of the MARKS and Common-Law Trademarks;
D.
That Kevin, and its respective agents, servants, officers, directors, employees and
all persons acting in concert with it, directly or indirectly, be ordered to deliver up to Spyderco for
destruction, or certify destruction of, all products that counterfeit and/or infringe the MARKS and
Common-Law Trademarks;
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E.
That Kevin account for and pay to Spyderco damages adequate to compensate
Spyderco for Kevin's conduct, in an amount to be proven at trial, together with interest and costs
as fixed by the Court;
F.
That Kevin pay to Spyderco statutory damages to the full extent permitted by law;
G.
That Spyderco be awarded its costs and attorneys' fees in accordance with 15 U.S.C.
1117(a) and Colo. Rev. Stat. 6-1-113 and any other appropriate statute or on the Court's own
power;
H.
That Spyderco be awarded pre-judgment and post-judgment interest; and
I.
That the Court award such other and further preliminary and permanent relief to
Spyderco as the Court deems equitable and appropriate.

XII.
JURY DEMAND
Spyderco hereby demands a jury trial on issues so triable.

Respectfully submitted,
Dated: December 14, 2016
By:
s/ Robert R. Brunelli
Robert R. Brunelli
rbrunelli@sheridanross.com
SHERIDAN ROSS P.C.
1560 Broadway, Suite 1200
Denver, CO 80202
Telephone: (303) 863-9700
Facsimile: (303) 863-0223
Email: litigation@sheridanross.com
ATTORNEY FOR PLAINTIFF
SPYDERCO, INC.
23
Case 1:16-cv-03061-CMA-NYW Document 1-1 Filed 12/14/16 USDC Colorado Page 1 of 1
- 59 -
Thu Oct 27 2016 13:59:10
EX. A, p. 1
- 57 -
Thu Oct 27 2016 13:59:10
EX. B, p. 1
- 58 -
Thu Oct 27 2016 13:59:10
EX. C, p. 1
11/7/2016
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EX. I, p. 1
EX. J, p. 1
EX. J, p. 2
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
Civil Action No.
SPYDERCO, INC.,
a Colorado corporation,
Plaintiff,
v.
d/b/a KTP GUN EXCHANGE,
a Maine corporation,
Defendant.
DECLARATION OF JOSH BELT
I, Josh Belt, hereby declare as follows:

1.
I am over the age of 18. I have personal knowledge of the facts set forth below and,
if called upon to do so, could and would competently testify thereto.

2.
I am a Mechanical and Materials Engineer working at Colorado Metallurgical
Services, located at 10605 East 25th Avenue, Aurora, Colorado 80010, and having a website
located at www.testmetals.com. Our organization is ISO/IEC 17025:2005 accredited.
3.
On October 26, 2016, at 10:24 a.m., I met with Mr. Robert Brunelli of Sheridan
Ross P.C. He asked that I test the composition of the metal of the blade of two knives shown in
the below photo:
EX. K, p. 1
EX. K, p. 2
EX. K, p. 3
EX. K, p. 4
EX. K, p. 5
EX. K, p. 6
EX. K, p. 7
EX. K, p. 8
EX. K, p. 9
EX. L, p. 1
EX. L, p. 2
EX. L, p. 3
EX. L, p. 4

JS 44 (Rev. 11/15) District of Colorado Form
CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS
DEFENDANTS
SPYDERCO, INC., a Colorado corporation,

d/b/a KTP GUN EXCHANGE, a Maine corporation
Jefferson
(b) County of Residence of First Listed Plaintiff
County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES)

NOTE:
(c) Attorneys (Firm Name, Address, and Telephone Number)
(IN U.S. PLAINTIFF CASES ONLY)

IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
Attorneys (If Known)
ROBERT R. BRUNELLI, SHERIDAN ROSS P.C.

1560 BROADWAY, SUITE 1200, DENVER, CO 80202
303-863-9700
II. BASIS OF JURISDICTION (Place an X in One Box Only)

1
U.S. Government
Plaintiff
Federal Question
(U.S. Government Not a Party)
U.S. Government
Defendant
Diversity
(Indicate Citizenship of Parties in Item III)
III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff

(For Diversity Cases Only)
PTF
Citizen of This State
1
DEF
1
and One Box for Defendant)

PTF
DEF
Incorporated or Principal Place
4
4
of Business In This State
Citizen of Another State
Incorporated and Principal Place

of Business In Another State
Citizen or Subject of a
Foreign Country
Foreign Nation
IV. NATURE OF SUIT (Place an X in One Box Only)

CONTRACT
TORTS
110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment
151 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excludes Veterans)
153 Recovery of Overpayment
of Veterans Benefits
160 Stockholders Suits
190 Other Contract
195 Contract Product Liability
196 Franchise
REAL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property
PERSONAL INJURY
310 Airplane
315 Airplane Product
Liability
320 Assault, Libel &
Slander
330 Federal Employers
Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
362 Personal Injury Medical Malpractice
CIVIL RIGHTS
440 Other Civil Rights
441 Voting
442 Employment
443 Housing/
Accommodations
445 Amer. w/Disabilities Employment
446 Amer. w/Disabilities Other
448 Education
FORFEITURE/PENALTY
PERSONAL INJURY
365 Personal Injury Product Liability
367 Health Care/
Pharmaceutical
Personal Injury
Product Liability
368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
370 Other Fraud
371 Truth in Lending
380 Other Personal
Property Damage
385 Property Damage
Product Liability
PRISONER PETITIONS
Habeas Corpus:
463 Alien Detainee
510 Motions to Vacate
Sentence
530 General
535 Death Penalty
Other:
540 Mandamus & Other
550 Civil Rights
555 Prison Condition
560 Civil Detainee Conditions of
Confinement
625 Drug Related Seizure

of Property 21 USC 881
690 Other
BANKRUPTCY
422 Appeal 28 USC 158
423 Withdrawal
28 USC 157
PROPERTY RIGHTS
820 Copyrights
830 Patent
840 Trademark
LABOR
710 Fair Labor Standards
Act
720 Labor/Management
Relations
740 Railway Labor Act
751 Family and Medical
Leave Act
790 Other Labor Litigation
791 Employee Retirement
Income Security Act
SOCIAL SECURITY
861 HIA (1395ff)
862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(g))
FEDERAL TAX SUITS

870 Taxes (U.S. Plaintiff
or Defendant)
871 IRSThird Party
26 USC 7609
IMMIGRATION
462 Naturalization Application
465 Other Immigration
Actions
OTHER STATUTES
375 False Claims Act
376 Qui Tam (31 USC
3729(a))
400 State Reapportionment
410 Antitrust
430 Banks and Banking
450 Commerce
460 Deportation
470 Racketeer Influenced and
Corrupt Organizations
480 Consumer Credit
490 Cable/Sat TV
850 Securities/Commodities/
Exchange
890 Other Statutory Actions
891 Agricultural Acts
893 Environmental Matters
895 Freedom of Information
Act
896 Arbitration
899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
950 Constitutionality of
State Statutes
V. ORIGIN (Place an X in One Box Only)

1 Original
Proceeding
2 Removed from
State Court
Remanded from
Appellate Court
4 Reinstated or
Reopened
5 Transferred from
Another District
(specify)
6 Multidistrict
Litigation
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
15 USC 1121; 28 USC 1331, 1338
VI. CAUSE OF ACTION Brief description of cause:
AP Docket
Trademark infringement, CCPA violation, and others
CHECK IF THIS IS A CLASS ACTION

VII. REQUESTED IN
UNDER RULE 23, F.R.Cv.P.
COMPLAINT:
VIII. RELATED CASE(S)
(See instructions):
IF ANY
JUDGE
DATE
CHECK YES only if demanded in complaint:

Yes
No
JURY DEMAND:
DEMAND $
DOCKET NUMBER
SIGNATURE OF ATTORNEY OF RECORD
s/ Robert R. Brunelli
12/14/2016
FOR OFFICE USE ONLY
RECEIPT #
AMOUNT
Print
APPLYING IFP
Save As...
JUDGE
MAG. JUDGE
Reset

JS 44 Reverse (Rev. 11/15) District of Colorado Form
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a)
(b)
(c)
Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".
II.
Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III.
Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV.
Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is
sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than
one nature of suit, select the most definitive.
V.
Origin. Place an "X" in one of the six boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407.
When this box is checked, do not check (5) above.
VI.
Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service; OR "AP Docket."
VII.
Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT

for the
District
of Colorado
__________
District
of __________
SPYDERCO, INC., a Colorado corporation,
Plaintiff(s)
v.
d/b/a KTP GUN EXCHANGE, a Maine corporation
Defendant(s)
)
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 16-cv-03061-___
SUMMONS IN A CIVIL ACTION

To: (Defendants name and address) KEVIN, INC., d/b/a Shawmut Distributors,
d/b/a Kittery Trading Post, and
d/b/a KTP Gun Exchange
c/o Registered Agent Philip H. Gleason
Bernstein Shur, Sawyer & Nelson, P.A.
100 Middle Street, West Tower
Portland, Maine 04104
A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney,
whose name and address are: Robert R. Brunelli
Sheridan Ross P.C.
1560 Broadway, Suite 1200
Denver, CO 80202
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 16-cv-03061-___

PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)
was received by me on (date)
I personally served the summons on the individual at (place)

on (date)
; or
I left the summons at the individuals residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date)
, and mailed a copy to the individuals last known address; or
I served the summons on (name of individual)
, who is
designated by law to accept service of process on behalf of (name of organization)

on (date)
; or
I returned the summons unexecuted because
; or
Other (specify):
.
My fees are $
for travel and $
for services, for a total of $
0.00
I declare under penalty of perjury that this information is true.
Date:
Servers signature
Printed name and title
Servers address
Additional information regarding attempted service, etc:
Print
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Case 1:16-cv-03061-CMA-NYW Document 1 Filed 12/14/16 USDC Colorado Page 1 of 23

IN THE UNITED STATES DISTRICT COURT

COMPLAINT WITH JURY DEMAND

Spyderco is a Colorado corporation, having its principal place of business at 820

Spyderco Way, Golden, Colorado 80403.

Case 1:16-cv-03061-CMA-NYW Document 1 Filed 12/14/16 USDC Colorado Page 2 of 23

KTP is an assumed name of Kevin. (See Ex. A, incorporated herein by this

KTPGE is an assumed name of Kevin. (See Ex. B, which is incorporated herein by

SD is an assumed name of Kevin. (Ex. C, incorporated herein by this reference.)

JURISDICTION AND VENUE

This is an action arising from Kevin's willful counterfeiting of Spyderco's federally

registered trademarks, willful infringement of Spyderco's federally registered and common-law

Case 1:16-cv-03061-CMA-NYW Document 1 Filed 12/14/16 USDC Colorado Page 3 of 23

Spyderco's Intellectual Property

manufacturing and distributing knives and knife accessories.

Many of these products are

Case 1:16-cv-03061-CMA-NYW Document 1 Filed 12/14/16 USDC Colorado Page 4 of 23

https://www.spyderco.com/catalog/details.php?product=19, and that information is incorporated

Case 1:16-cv-03061-CMA-NYW Document 1 Filed 12/14/16 USDC Colorado Page 5 of 23

Case 1:16-cv-03061-CMA-NYW Document 1 Filed 12/14/16 USDC Colorado Page 6 of 23

https://www.spyderco.com/search/index.php, and that information is incorporated herein by this

Case 1:16-cv-03061-CMA-NYW Document 1 Filed 12/14/16 USDC Colorado Page 7 of 23

Case 1:16-cv-03061-CMA-NYW Document 1 Filed 12/14/16 USDC Colorado Page 8 of 23

The manufacturer's suggested retail price ("MSRP") for authentic Spyderco

Spyderco' s Relevant Federally Registered Trademarks

Spyderco is the owner of now incontestable U.S. Trademark Registration Number

Case 1:16-cv-03061-CMA-NYW Document 1 Filed 12/14/16 USDC Colorado Page 9 of 23

Spyderco is also the owner of now incontestable U.S. Trademark Registration

Spyderco is the owner of now incontestable U.S. Trademark Registration Number

referred to below as the "MARKS."

Case 1:16-cv-03061-CMA-NYW Document 1 Filed 12/14/16 USDC Colorado Page 10 of 23

Spyderco' s Relevant Common Law Trademarks

several years under and in connection with the symbol

. These knives have met with

Case 1:16-cv-03061-CMA-NYW Document 1 Filed 12/14/16 USDC Colorado Page 11 of 23

long before Kevin, who without authorization,

used the identical mark on visually identical knives.

under and in connection with the symbol

. These knives have met with commercial success

loyalty and goodwill in and to its successful

symbol. Based upon Spyderco's continuous

strong common law trademark rights in and to the

long before Kevin, who without

authorization, used the identical mark on visually identical knives.

The trademarks discussed in paragraphs 21-25 hereof will collectively be referred

to below as the "Common-Law Trademarks."

Case 1:16-cv-03061-CMA-NYW Document 1 Filed 12/14/16 USDC Colorado Page 12 of 23

Kevin and its Infringing Conduct

Case 1:16-cv-03061-CMA-NYW Document 1 Filed 12/14/16 USDC Colorado Page 13 of 23

(See Ex. J, which is incorporated herein by this reference.)

Case 1:16-cv-03061-CMA-NYW Document 1 Filed 12/14/16 USDC Colorado Page 14 of 23

used on a good sold in interstate commerce that is identical to or substantially indistinguishable

The American College Dictionary of the English Language, 2000,

(See Ex. L, which is incorporated herein by this reference.) The CLONE/

Case 1:16-cv-03061-CMA-NYW Document 1 Filed 12/14/16 USDC Colorado Page 15 of 23

Case 1:16-cv-03061-CMA-NYW Document 1 Filed 12/14/16 USDC Colorado Page 16 of 23

Kevin's willful counterfeiting and infringement make this an exceptional case,

Case 1:16-cv-03061-CMA-NYW Document 1 Filed 12/14/16 USDC Colorado Page 17 of 23

Spyderco incorporates paragraphs 1 through 35 as though fully set forth herein.

As a direct and proximate result of Kevin's infringing activities, Spyderco is entitled

Kevin's infringement of Spyderco's MARKS and Common-Law Trademarks is

Spyderco is entitled to injunctive relief pursuant to 15 U.S.C. 1116(a).

Case 1:16-cv-03061-CMA-NYW Document 1 Filed 12/14/16 USDC Colorado Page 18 of 23