IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION ROOSTER PRODUCTS

INTERNATIONAL, INC., Plaintiff, v. PULLR HOLDING COMPANY, LLC, Defendant. Civil Action No. 5:11-cv-1071 COMPLAINT Plaintiff, Rooster Products International, Inc., d/b/a The Rooster Group for patent infringement and unfair competition seeking damages from and injunctive relief against Pull'R Holding Company, LLC. PARTIES 1. Plaintiff, Rooster Products International, Inc., (Rooster) is a Texas corporation

located at 17280 N. Green Mountain Road, Suite 101, San Antonio, Texas 78247. 2. Defendant, PullR Holding Company, LLC, (PullR) is a Delaware Limited

Liability Company with its principal place of business at 10455 Slusher Drive, Santa Fe Springs, California 90670 and/or 1000 Greenleaf Avenue, Elk Grove Village, Illinois, 60007. Pull'R can be served with process by serving its registered agent for service of process, The Company Corporation, 2711 Centerville Road, Suite 400, Wilmington, DE 19808. JURISDICTION AND VENUE 3. This Court has subject matter jurisdiction pursuant to 28 U.S.C. 1331 and

1338(a) because this action arises under the patent laws of the United States, including 35 U.S.C. 271 et seq., as well as under the Lanham Act, 15 U.S.C. 1125. This Court has personal

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jurisdiction over PullR because PullR conducts substantial and continuous business in the State of Texas and in this District either directly or through one or more subsidiaries, affiliates, business divisions, business units, retailers, and/or vendors. Further, PullR has purposefully directed its infringing activities as described below to the residents of the State of Texas and this District by selling and offering for sale infringing products within the territorial limits of this District. 4. Additionally, this Court has jurisdiction pursuant to 28 U.S.C. 1332 for the reason

that there is complete diversity of citizenship between Plaintiff and Defendant and the amount in controversy exceeds the sum or value of $75,000, exclusive of interest and costs. 5. Venue is proper in this District pursuant to 28 U.S.C. 1391 and 1400(b)

because, inter alia, a substantial part of the events or omissions giving rise to the claim occurred in this District, PullR is subject to personal jurisdiction in this District, and/or PullR has committed acts of infringement in this District. In particular, PullR has offered and sold infringing products in this judicial district. FACTUAL BACKGROUND 6. At all time relevant hereto, Rooster has been in the business of marketing,

distributing, and selling work gear and work wear products. Over nearly 30 years, Rooster has invested a significant amount of time and money in developing marketing plans and strategies, innovating its product line and designing product packaging. 7. On November 25, 2003, the U.S. Patent & Trademark Office issued U.S. Patent No.

D482,524 (hereinafter the 524 Patent) to Mr. Juan Pablo Cabrera and Mr. Daniel F. Cabana. Mr. Cabrera and Mr. Cabana assigned the 524 Patent to Rooster.

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8.

Rooster is the sole owner of the 524 Patent. A copy of the 524 Patent is attached to

this Complaint as Exhibit A, which is hereby incorporated as a part of this Complaint. 9. Within the last six (6) years, PullR has made, offered for sale, sold, or induced

others to sell products, within this and other judicial districts, including PullRs 54064CN Canvas 10 Pocket Pouch product (the PullR Infringing Product), that bear the same or substantially the same design claimed in the 524 Patent, or colorable imitation thereof, and which infringe the 524 Patent. An excerpt from PullRs 2010 Catalog which depicts a picture of the PullR Infringing Product is attached hereto as Exhibit B and incorporated herein by reference. 10. Through significant effort over numerous years, Rooster has expended considerable

time, effort and sums of money developing and upgrading its line of work gear and products and has developed significant good will and an economic relationship between Rooster and its customers, including, but not limited to companies such as Menards, The Home Depot, True Value and WalMart. Rooster has developed a superior design team that works hand-in-hand with its customers to ensure products meet and exceed their requirements and expectations. Roosters manufacturing facilities located around the globe employ state-of-the-art manufacturing technology and utilize only high quality materials. Moreover, Roosters dedicated marketing staff promotes world-wide sales and their high-tech distribution center ensures that products arrive at their destinations on time and in excellent condition. McGuire-Nicholas, a division of The Rooster Group, was awarded the number 1 Manufacturer for most innovative in knee pads two years in a row by the leading home improvement retail chains, according to the Annual Innovation Awards issue published by Home Improvement Executive, July 25, 2005.

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11.

As a result of the time, effort and money spent by Rooster in developing products

and relationship with various retailers, Rooster has developed significant goodwill for its name and products. Rooster has had a significant and continuing economic relationship with companies such as Menards, The Home Depot, True Value and Wal-Mart inasmuch as Rooster has sold and continues to sell significant products to such retailers in the tool and hardware industry. 12. Upon information and belief, PullR has knowledge of the relationship between

Rooster and its most significant customers. In particular, PullR hired away from Rooster several key employees, including, but not limited to, Roosters former Vice President of Sales, Tony Ranallo, who had knowledge of Roosters business and marketing strategies, along with knowledge of its vendors and customer contracts. Upon information and belief, PullR, along with its agents and representatives, made statements to Roosters customers that were designed to disrupt the relationship between Rooster and its customers so that PullR could damage the relationship with those customers and unfairly profit from it. 13. Upon information and belief, within the last several years, PullR began a series of

actions designed to unfairly compete with Rooster. Beginning as early at 2010, and possibly earlier, PullR began copying Roosters line of products. PullR began to manufacture and sell the PullR Infringing Product without Roosters permission. Upon information and belief, PullR

manufactured and sold the PullR Infringing Product to The Home Depot and to other national and local retailers, where such products were sold in direct competition with Roosters products, such that professional tradesmen and the public at large mistakenly associate the PullR Infringing Product with those being manufactured and sold by Rooster. Moreover, upon information and belief, PullR has obtained confidential information belonging to Rooster and is or has used such

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confidential information to unfairly compete with Rooster by duplicated some of Roosters most successful and best-selling items in its line or set of products. 14. PullRs conduct is likely to cause confusion by the consuming public as to the

source and sponsorship of the infringing products and violates 43(a) of the Lanham Act, 15 U.S.C. 1125(a). Such actions also constitute unfair competition under the laws of the State of Texas. 15. PullR willfully created a likelihood of confusion in violation of 43(a) of the

Lanham Act, 15 U.S.C. 1125(a). As a direct and proximate cause of PullRs unlawful acts, Rooster has been damaged and PullR has been unjustly enriched in amounts yet to be determined. 16. Upon information and belief, PullR took actions calculated to duplicate many of

Roosters products notwithstanding knowledge that such actions would constitute infringement of Roosters intellectual property. 17. Upon information and belief, the relationship between Rooster and its customers,

including but not limited to The Home Depot, has suffered as a result of the statements made by PullR and its agents and representatives and has suffered as a result of the actions taken by PullR in copying Roosters products and by copying or imitating Roosters most popular and successful products in its line or set of products. This disruption in the business relationship between Rooster and its customers has caused damages and economic harm to Rooster. CAUSES OF ACTION COUNT I - PATENT INFRINGEMENT 18. The allegations set forth in Paragraphs 1 through 17 are incorporated by reference as

if fully set forth herein. 19. Upon information and belief, PullR has infringed and continues to infringe, the 524

Patent, directly or by contributorially infringing and inducing infringement by others. The acts of

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Pull'R in making, offering for sale, or selling products or inducing others to make, offer for sale, or sell products that bear the same or substantially the same design claimed in the 524 Patent, or colorable imitation thereof, constitute infringement of that patent. 20. Upon information and belief, PullR will continue to infringe, induce infringement,

and contribute to infringement unless enjoined by this Court. Pursuant to 35 U.S.C. 283, Rooster seeks a preliminary and permanent injunction against further infringement of the 524 Patent. 21. Pull'R's infringement of the 524 Patent has caused great harm and

damage to Rooster. The amount of these damages is not yet determined. Pursuant to 35 U.S.C. 284, Rooster seeks damages adequate to compensate for PullRs infringement in an amount not less than a reasonable royalty, together with interest and cost, and such additional relief as may be deemed appropriate and awarded by the Court. Additionally, pursuant to 35 U.S.C. 289, Rooster seeks damages to the extent of PullRs total profit from sales of the PullR Infringing Product, but not less than $250. 22. Upon information and belief, PullRs infringement of the 524 patent has been and

continues to be deliberate and willful. 23. Pursuant to 35 U.S.C. 285, Rooster is entitled to and seeks a finding that this case

is exceptional and warrants an award of enhanced damages, including reasonable attorneys fees. COUNT II - UNFAIR COMPETITION 24. The allegations set forth in Paragraphs 1 through 23 are incorporated by reference as

if fully set forth herein. 25. The acts of Pull'R constitute unfair competition with Rooster within the meaning of

15 U.S.C. 1125(a).

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26.

Upon information and belief, Rooster is informed and believes that Pull'R will

continue to commit these acts which constitute unfair competition unless enjoined by the Court. Pursuant to 15 U.S.C. 1116, Rooster is entitled to and seeks a preliminary and permanent injunction against further acts of unfair competition. 27. Pull'R's acts of unfair competition have caused great harm and damage to Rooster.

The amount of these damages is not yet determined. Pursuant to 15 U.S.C. 1117(a), Rooster is entitled to and seeks Pull'R's profits, actual damages, and costs of this action, and such additional relief as may be deemed appropriate and awarded by the Court. 28. Upon information and belief, Rooster is informed and believes that Pull'R's acts of

unfair competition have been and continue to be deliberate and willful and warrant an award of enhanced damages. In addition, Rooster is entitled to and seeks a finding that this case is exceptional and warrants and award of reasonable attorneys' fees pursuant to 15 U.S.C. 1117(a). COUNT III - COMMON LAW UNFAIR COMPETITION 29. The allegations set forth in Paragraphs 1 through 28 are incorporated by reference as

if fully set forth herein. 30. The acts of Pull'R constitute common law unfair competition with Rooster under the

laws of the State of Texas. 31. Upon information and belief, Rooster is informed and believes that Pull'R will

continue to commit these acts which constitute unfair competition unless enjoined by the Court. Pursuant to Texas law, Rooster is entitled to and seeks a preliminary and permanent injunction against further acts of unfair competition. 32. Pull'R's acts of unfair competition have caused great harm and damage to Rooster.

The amount of these damages is not yet determined. Rooster is entitled to and seeks actual
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damages, and costs of this action and such additional relief as may be deemed appropriate and awarded by the Court. JURY DEMAND Rooster hereby demands a trial by jury for all issues so triable alleged in this complaint.

PRAYER WHEREFORE, Plaintiff, Rooster Products International, Inc., respectfully prays that this Court enter judgment as follows: a. b. c. d. That Pull'R has infringed and continues to infringe the 524 Patent; That Pull'R has induced infringement of the 524 Patent by others; That Pull'R has contributed to the infringement of the 524 Patent by others; That Rooster be awarded an accounting of all damages sustained by Rooster as a result of the acts of infringement by PullR, but not less than a reasonable royalty pursuant to 35 U.S.C. 284; e. That Rooster be awarded PullRs total profit from sales of the PullR Infringing Product, but not less than $250 pursuant to 35 U.S.C. 289; f. That PullR its officers, agents, employees, attorneys, corporations, or companies under the control of PullR and all other persons in active concert and/or in participation with PullR be preliminarily and permanently enjoined from further infringement of the 524 Patent; g. That PullRs actions and statements complained of herein constitute unfair competition;

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h.

That Pull'R its officers, agents, employees, attorneys, corporations, or companies under the control of Pull'R and all other persons in active concert and/or in participation with Pull'R be forever and permanently enjoined from engaging in the acts of unfair competition complained of herein;

i.

That Pull'R be directed to provide an accounting of all revenue received from the sale of products resulting from its acts of unfair competition complained of herein and that Pull'R pay Rooster all profits received by Pull'R and all damages suffered by Rooster as a result of Pull'R's acts of unfair competition;

j.

That Pull'R's acts of patent infringement and unfair competition are deliberate, willful, and intentional and that this is an exceptional case;

k. l. m.

That Rooster be awarded its actual damages with prejudgment interest; That Rooster be awarded enhanced damages pursuant to 35 U.S.C. 284; That Rooster be awarded its attorneys fees pursuant to 35 U.S.C. 285 or as otherwise permitted by law;

n. o.

That Rooster be awarded its costs of suit; and For such other and further relief to which Plaintiff, Rooster, shows itself justly entitled.

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Dated:

December 14, 2011

Respectfully submitted, COX SMITH MATTHEWS INCORPORATED 112 E. Pecan Street, Suite 1800 San Antonio, Texas 78205 (210) 554-5500 (Phone) (210) 226-8395 (Fax)

By: /s/ J. Daniel Harkins J. Daniel Harkins State Bar No. 09008990 Derrick A. Pizarro State Bar No. 24032837 Attorneys for Plaintiff Rooster Products International, Inc.

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