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Plaintiff Michelin North America, Inc. (Plaintiff or Michelin), for its complaint
against Defendant Tire Mart, Inc., d/b/a Braven Off-Road (Defendant or Tire Mart), hereby
alleges as follows:
1. This is a civil action for the infringement of United States Design Patent No.
D530,266 (the D266 patent) under the Patent Laws of the United States, 35 U.S.C. 100 et
seq., arising from Tire Marts manufacture, use, offer to sell, sale and/or importation of
THE PARTIES
2. Plaintiff Michelin North America, Inc. is a New York corporation having its
principal place of business at 1 Parkway S., Greenville, South Carolina, 29605, United States.
Case: 4:17-cv-02472 Doc. #: 1 Filed: 09/26/17 Page: 2 of 8 PageID #: 2
3. Upon information and belief, Defendant Tire Mart, Inc. is a Missouri corporation
having its principal place of business at 1815 Locust Street, St. Louis, Missouri, 63103, United
States.
4. Upon information and belief, Tire Mart, Inc. conducts business in Missouri under
the name Braven Off-Road. On or about September 16, 2016, Tire Mart, Inc. caused to be filed
with the Missouri Secretary of State a Registration of Fictitious Name, in which the fictitious
name Braven Off-Road is identified as 100% owned by Tire Mart, Inc. The registered business
address for Braven Off-Road is identified as 1815 Locust Street, St. Louis, Missouri, 63103,
United States. The website for Braven Off-Road identifies Tire Mart, Inc. as the distributor and
contact for Braven Off-Road tires, including the tires that are the subject of this complaint. 1
5. This Court has subject matter jurisdiction over this complaint pursuant to 28
U.S.C. 1331 and 1338(a), because this is an action arising under the Patent Laws of the
6. This Court has personal jurisdiction over Tire Mart because (a) Tire Mart is a
Missouri corporation having its principal place of business in St. Louis, Missouri, (b) upon
information and belief, Tire Mart regularly conducts business in Missouri through the
1
See https://bravenoffroad.com/pages/about-us (last accessed Sept. 20, 2017). The tires that are
the subject of this complaint were previously marketed, offered for sale and/or sold in Missouri
under the name Pit Bull Tires. Pit Bill Tires is a fictitious name that has been registered with the
Missouri Secretary of State, and that is also 100% owned by Tire Mart, Inc. Upon information
and belief, on or about August 2017, Tire Mart, Inc. removed the tires that are the subject of this
complaint from the Pit Bull Tires website. At all times pertinent to this complaint, the tires that
are the subject of this complaint have been marketed, offered for sale, sold and/or imported by
Tire Mart, Inc.
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manufacture, sale and/or importation of products in Missouri, and (c) Tire Mart committed
tortious acts within the state of Missouri giving rise to this action.
7. Venue is proper under 28 U.S.C. 1391(b) and (c), and/or 1400(b), because Tire
Mart is subject to personal jurisdiction in this district, and Tire Mart has committed acts of patent
THE PATENTS-IN-SUIT
8. On October 17, 2006, the D266 patent, entitled Tire Tread, was duly and
legally issued by the U.S. Patent and Trademark Office (USPTO). A true and correct copy of
the D266 patent is attached as Exhibit A. The D266 patent is valid, enforceable and currently
9. Michelin is the owner and assignee of all substantial rights, title and interest in the
D266 patent, including the right to bring this action and enforce the D266 patent against
FACTUAL BACKGROUND
10. Michelin is a leader in tire manufacture and innovation, and it conducts business
in the United States, including in Missouri. Michelins tire brands include Michelin,
11. Michelin makes, sells and promotes tire products whose ornamental tire tread
designs are protected by the D266 patent. These products include BFGoodrich T/A KM2 tires.
BFGoodrich T/A KM2 tires are offered for sale and/or sold in the United States, including in
Missouri.
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12. Upon information and belief, Tire Mart manufactures, uses, offers for sale, sells
and/or imports tire products in the St. Louis, Missouri area, including tire products distributed,
marketed, offered for sale and/or sold under the name Braven Off-Road.
13. Upon information and belief, Tire Mart owns and operates the website
www.bravenoffroad.com. Through its website and/or at its principal place of business, Tire Mart
markets, offers for sale and sells tire products. These tire products include Braven Off-Road
14. Braven is a trademark that is registered with the USPTO under U.S. Serial No.
87099726. Upon information and belief, the trademark Braven is currently owned and used by
15. Michelin hereby incorporates by reference paragraphs 1-14 as if fully set forth
herein.
16. The claimed design of the D266 patent is shown in Figures 1 and 2 of the patent
and described in the accompanying figure descriptions. See Exhibit A. Representative images
are below:
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17. Tire Mart markets, offers for sale and sells Ironside tires, including through its
website. 2 Representative images of Ironside tires from Tire Marts website are below:
18. In the eye of the ordinary observer familiar with the relevant prior art, giving such
attention as a purchaser usually gives, the claimed design of the D266 patent and the tread
2
See, e.g., https://bravenoffroad.com/products/braven-ironside-atv-utv-radials (last accessed
Sept. 20, 2017).
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design of at least Tire Marts Ironside tires are substantially the same, such that the ordinary
observer would be deceived into believing that the tread design of Tire Marts Ironside tires is
19. Michelin did not give Tire Mart authorization or license to make, use, offer to
20. Tire Mart has directly infringed, and continues to directly infringe, the D266
patent by making, using, offering to sell, selling and/or importing tires, including Ironside tires,
having substantially the same ornamental design as the design claimed in the D266 patent, in
21. Upon information and belief, Tire Mart also induced, and continues to induce,
others to infringe the D266 patent by encouraging and promoting the use and/or sale by others
of tires that infringe the D266 patent, including but not limited to Ironside tires, in violation of
35 U.S.C. 271(b).
22. Tire Mart has had actual knowledge of the D266 patent since at least the date on
23. Upon information and belief, Tire Mart has sold and continues to sell, offer to
sell, distribute, market and/or import tire products that infringe the D266 patent, including
Ironside tires, to end consumers and/or resellers with the intent that these parties will use,
market, offer to sell and/or sell the products in the United States in a manner that infringes the
D266 patent.
24. Upon information and belief, Tire Mart knew or should have known that the use,
marketing, offering to sell and selling of the infringing products by Tire Mart or its resellers
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25. Tire Marts direct and induced infringement of the D266 patent has caused and
26. Tire Marts direct and induced infringement has also caused and will continue to
cause irreparable harm to Michelin unless and until such infringing conduct is enjoined pursuant
27. Upon information and belief, Tire Marts acts of infringement have been or will
be undertaken with knowledge of the D266 patent. Such acts constitute willful infringement
and make this case exceptional pursuant to 35 U.S.C. 284 and 285, and entitle Michelin to
A. Entry of a judgment that Tire Mart has directly and/or indirectly infringed the
and/or the equitable powers of this Court, to prevent further direct and/or induced infringement
Michelin for the infringement that has occurred, pursuant to 35 U.S.C. 284;
D. An Order requiring Tire Mart to account for and pay to Michelin any and all
profits made by Tire Mart from sales of its infringing products pursuant to 35 U.S.C. 289;
E. An Order requiring Tire Mart to pay Michelin its costs and attorneys fees in this
F. Such other and further relief as the Court may deem just and proper.
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_____________
Peter W. Herzog III (Mo. Bar No. 36429)
WHEELER TRIGG ODONNELL LLP
211 N. Broadway, Suite 2825
St. Louis, Missouri 63102
Phone: (314) 326-4128
Facsimile: (303) 244-1879
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EXHIBIT A
Case: 4:17-cv-02472 Doc. #: 1-1 Filed: 09/26/17 Page: 2 of 4 PageID #: 10
111111 1111111111111111111111111111111111111111111111111111111111111
USOOD530266S
(75) Inventors: John Anthony Hutz, Greer, SC (US); Goodyear Unisteel(R) G286 SS Special Service Tire, 2004
Stephen Lash, Simpsonville, SC (US); Tread Design Guide, Jan. 2004, p. 122. 4/1.*
Gary Dean Enterline, Greer, SC (US) Tread Design Guide, 2002, pp. 117, Bridgestone M774.
Tread Design Guide, 2002, pp. 156, Bridgestone VLTS
(73) Assignee: Michelin Recherche et Technique V-Steel L-Traction S.
S.A., Granges-Paccot (CH) Tread Design Guide, 2002, pp. 157, Continental TGL2.
Tread Design Guide, 2002, pp. 165, Michelin XADN.
(**) Term: 14 Years
* cited by examiner
(21) Appl. No.: 29/238,537
Primary Examiner-Robert M. Spear
(22) Filed: Sep. 16, 2005 (74) Attorney, Agent, or Firm-E. Martin Remick; Adam
Arnold
(51) LOC (8) Cl. .................................................... 12-15
(52) U.S. Cl. ...................................................... Dl2/579 (57) CLAIM
(58) Field of Classification Search ................ D12/511,
D12/512, 513,543,544,545,565,578,579, The ornamental design for a tire tread, as shown and
D12/580, 600, 601, 901; 152/209.1, 209.8, described.
152/209.12, 209.18, 209.28 DESCRIPTION
See application file for complete search history.
FIG. 1 is a perspective view of a tire tread of this invention
(56) References Cited showing our new design, it being undestood that the tread
pattern repeats circumferentially throughout the outer cir-
U.S. PATENT DOCUMENTS
cumference and shoulder of a tire, the opposite side per-
2,014,255 A * 9/1935 King ....................... 152/209.2 spective view being an identical image thereto; and,
Dll2,993 S * 111939 Hardeman ................. D12/571 FIG. 2 is an enlarged fragmentary front elevation view of the
D158,031 S * 4/1950 Wilcox ...................... D12/544 tire tread thereof of FIG. 1.
3,559,712 A * 2/1971 Verdier .................. 152/209.14
D273,777 S * 5/1984 Igarashi eta!. ............ D12/579
In the drawings, the dark stippled surface shading represents
D295,617 S * 5/1988 Sedlack ..................... D12/579 the recessed groove portions of the tire tread having a depth
D385,520 S * 10/1997 Scheuren eta!. .......... D12/602 as best illustrated along the right edge of FIG. 1. The broken
D402,239 S 12/1998 Le eta!. .................... D12/146 line disclosure of the tire sidewall and inner bead is for
D405,403 S * 2/1999 Brown eta!. .............. D12/602 illustrative purposes only and forms no part of the claimed
D430,833 S * 9/2000 Allison ...................... D12/579 design.
D481,989 S * 11/2003 Portnoy et al ............. D12/579
D483,718 S 12/2003 Hutz eta!. ................. D12/579
D512,370 S * 12/2005 Pang ......................... D12/579 1 Claim, 2 Drawing Sheets
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Case: 4:17-cv-02472 Doc. #: 1-1 Filed: 09/26/17 Page: 4 of 4 PageID #: 12
(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant St. Louis City
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Wheeler Trigg O'Donnell LLP
211 N. Broadway, Suite 2825
St. Louis, MO 63102 (314) 326-4128
II. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
u 1 U.S. Government u 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State u 1 u 1 Incorporated or Principal Place u 4 u 4
of Business In This State
u 2 U.S. Government u 4 Diversity Citizen of Another State u 2 u 2 Incorporated and Principal Place u 5 u 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
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) 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.
(b) 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.)
(c) 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 there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.
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
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.
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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
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Date and Attorney Signature. Date and sign the civil cover sheet.
Case: 4:17-cv-02472 Doc. #: 1-3 Filed: 09/26/17 Page: 1 of 1 PageID #: 15
The undersigned affirms that the information provided above is true and correct.
To: (Defendants name and address) Tire Mart, Inc. d/b/a Braven Off-Road
1815 Locust Sreet
St. Louis, MO 63103
USA
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:
Peter W. Herzog III
WHEELER TRIGG O'DONNELL LLP
211 N. Broadway, Suite 2825
St. Louis, MO 63102
(314) 326-4128
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
Case: 4:17-cv-02472 Doc. #: 1-4 Filed: 09/26/17 Page: 2 of 2 PageID #: 17
AO 440 (Rev. 12/09) Summons in a Civil Action (Page 2)
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) Tire Mart, Inc. d/b/a Braven Off-Road
was received by me on (date) .
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
Other (specify):
.
My fees are $ for travel and $ for services, for a total of $ 0.00 .
Date:
Servers signature
Servers address
The undersigned affirms the information provided above is true and correct.
09/26/2017 Peter W. Herzog III