Evans v. Building Materials - Complaint

Case 1:16-cv-00282-GBL-IDD Document 1 Filed 03/14/16 Page 1 of 12 PageID# 1
FILED
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINL^
MAR 1 4 2016
(Norfolk Division)
STEPHEN F. EVANS
CLERK. US DISTRICT COURT

NORFOLK. VA
and
ROOF N BOX, INC.,
Case No. IJLc^MSt
Plaintiffs,
V.
BUILDING MATERIALS
CORPORATION
OF AMERICA d/b/a
GAF-ELK CORPORATION,
Defendant.
COMPLAINT
Plaintiffs Stephen F. Evans and Roof N Box, Inc. (collectively, "Plaintiffs") for their
Complaint against Defendant Building Materials Corporation of America d/b/a GAF-Elk

Corporation (collectively, "Defendant"), stateas follows.
NATURE OF ACTION
1.
This is an action for patent infringement, trade dress infringement, and unfair
competition, in which Plaintiffs seek injunctive relief and damages in excess of ONE MILLION
DOLLARS ($1,000,000.00).
PARTIES. JURISDICTION AND VENUE
2.
Plaintiff Stephen F. Evans ("Evans") is an adult citizen of the Commonwealth of
Virginiawho resides in Virginia Beach, Virginia.
3.
Plaintiff RoofN Box, Inc. ("Roof N Box") is a corporation organized and existing
under the laws of the Commonwealth of Virginia, with its principal place of business in Virginia
Beach, Virginia. Evans is the founder andPresident of RoofN Box.
4.
Defendant Building Materials Corporation of America d/b/a GAF-Elk
Corporation ("GAP") is a corporation organized and existing under the laws of the state of
Delaware, with its principal place of business in New Jersey.
5.
This Court has jurisdiction over this matter under 28 U.S.C. 1331 and 1338(a)
because it involves claims for patent and trade dress infringement. This court also has
jurisdiction over this matter pursuant to 28 U.S.C. 1332 because there is complete diversity
between the parties and the amount at issue, exclusive of interest and costs, exceeds $75,000.00.
6.
This Court may exercise personal jurisdiction over the Defendant because, among
other things, it regularly conducts business in Virginia and a substantial portion of the events
giving rise to this dispute arose inVirginia Beach, Virginia.
7.
This district is a proper venue for this action pursuant to 28 U.S.C. 1391.
FArXflAL BACKGROUND
8.
Evans has been in the roofing business for several years. In or around 2006, he
developed the "Roof N Box" product a three-dimensional roofing model to use during
presentations for selling roofing products and services to a homeowner.
9.
The model serves as an education tool, sales tool, training tool, and a product
highlight and differentiating tool.
10.
The model allows a salesperson to remove the roofing portions and layers of
roofing of the model in fi-ont of ahomeowner and replace each roofing layer while explaining the
different roofing layers, their respective functions, their terminologies, and other product and
service differentiations and placements.
11.
On June 25, 2007, Evans filed a patent application for the model, which issued as
design patent number D575,509 on August 26, 2008 to Evans as the sole owner (the '509
Patent). A true and correct copy ofthe '509 Patent is attached as Exhibit 1.
12.
Plaintiffs invested substantial time, effort, and funds in designing and
manufacturing the Roof N Box product.
13.
In 2008, Plaintiffs began selling the Roof N Box product to other roofing
professionals. Evans also used the Roof N Box product in his own sales presentations to
homeowners.
14.
The RoofN Box product was favorably received in the marketplace.
15.
In 2008, a representative of GAF contacted Evans in Virginia Beach and
recommended that Evans contact GAF headquarters to enter GAF's Certified Contractors
Program to sell the Roof NBox product directly to resellers of GAF roofing products (the GAF
Contractors). The GAF representative indicated that GAF was interested in entering into a
partnership with Evans to market the Roof N Box product.
16.
In October 2008, Evans sent an email from Virginia Beach to a GAF
representative to pursue a partnership with GAF related to the Roof NBox product. The GAF
representative responded and set up a meeting with Evans.
17.
Thereafter, Evans met with GAF representatives in New Jersey to discuss selling
the Roof N Box product to GAF Contractors.
18.
Following the New Jersey meeting, Evans commenced discussions with GAF
representatives in GAF's Dallas, Texas office.
19.
In September 2009, GAF and Roof N Box entered into a Promotional Agreement
whereby RoofN Box agreed to sell the Roof N Box product to GAF Contractors at discounted
prices, and GAF agreed to promote the RoofN Box product to the GAF Contractors.
20.
After entering into the Promotional Agreement, Roof N Box began to sell the
Roof N Box product to GAF Contractors at the discounted prices, and Evans even attended the
GAF 2010 National Sales Meeting to present the Roof N Box product to other resellers and
customers of GAF roofing products. A true and correct copy of a sample of Plaintiffs'
promotional materials advertising the Roof N Box product to GAF Contractors is attached as
Exhibit 2.
21.
Thereafter, Evans met with GAF representatives inTexas. At this meeting, and at
other times during the parties' relationship, Evans provided GAF with Roof N Box and Evans
confidential information, including information concerning the design, manufacture, and
marketing of the Roof NBox product and strategies for using the Roof NBox product in sales
presentations for roofing services and products. Evans and GAF agreed that such Roof NBox
and Evans confidential information would be kept confidential by GAF.
22.
Sometime after the Texas meeting, GAF orally advised Roof N Box that it was
terminating the Promotional Agreement with RoofN Box.
23.
Thereafter, GAF commenced manufacturing and selling, and upon information
and belief, continues to manufacture and sell, a competing roofing model.

24.
Defendant has advertised its competing roofing model for sale in a GAF catalog
and on its website. A true and correct copy of the page from the catalog is attached as Exhibit 3,
and true and correct copy of the web page is attached as Exhibit 4.
25.
Defendant's catalog and advertisements for its competing roofing model are
substantially similar to Plaintiffs' promotional literature for the Roof N Box product. Compare
Exhibit 2 to Exhibits 3 and 4.
26.
Defendant's competing roofing model has the same "look and feel" of the RoofN
Box product, performs the same fimction, and copies the design of the Roof N Box product.
True and correct photographs of the GAP competing roofing model are attached as Exhibit 5.
True and correct photographs ofthe Roof N Box product are attached as Exhibit 6.
27.
Defendant advertises, manufactures, and sells its competing roofing model to its
GAP Contractors. Defendant encourages its GAP Contractors to use the roofing model to "close
more GAP Lifetime Roofing System sales by demonstrating the roofing process and its key
components." See Exhibit 3; see also Exhibit 4.
28.
Defendant has made (directly or indirectly), sold, and upon information and
belief, continues to sell, its competing roofing model in interstate conunerce, and has advertised
it for sale, offered it for sale, and/or sold it to persons in Virginia.
29.
Defendant's roofing model infringesthe '509 Patent.

COUNT I - PATENT INFRINGEMENT (DIRECT)
30.
Plaintiffs incorporate by reference Paragraphs 1-29, above as if fully set forth
31.
35 U.S.C 271(a) provides that any person, without authority, who makes, uses,
herein.
offers to sell, sells, or imports into the United States, any patented invention during the term of
the patent infringes the patent.
32.
Defendant has infringed the '509 Patent by making, using, offering to sell, selling,
and/or importing into the United States its competing roofing model, without Evans'
authorization or license.
33.
Defendant will continue to manufacturer, offer to sell, sell, and/or import its
infnnging roofing model unless enjoined by this Court.
34.
Due to Defendant's infringement, Evans is suffering, and will continue to suffer,
irreparable injury.
35.
Evans has suffered damages as a result of Defendant's infringement and/or
Defendant has been unjustly enriched by such infringement.
36.
Evans is entitled to damages as a result of Defendant's infringement, including
but not limited to, disgorgement ofall Defendant's profits, in an amount to be proven at trial, as
well as injunctive relief.
37.
At all relevant times. Defendant knew that the Roof N Box product was the
subject of a design patent.
38.
Defendant willfully, knowingly, and intentionally infnnged the '509Patent.
39.
Evans is entitled to treble damages for Defendant's willful infringement.
40.
Defendant's conduct, as alleged herein, renders this an "exceptional case" and
Evans is entitled to recover his attorney's fees and costs.

COUNT II - PATENT INFRINGEMENT aNDUCED)
41.
Plaintiffs incorporate by referenced Paragraphs 1through 40, above as if fully set
forth herein.
42.
Pursuant to 35 U.S.C. 271(b) "whoever actively induces infringement of a patent
shall be liable as an infnnger."
43.
Defendant has induced third parties, including its GAF Contractors, to infringe
the '509 Patent, by intentionally encouraging them to use the infringing roofing model in sales
presentations in order to "close more sales,"
44.
Defendant will continue to induce third parties to infringe unless enjoined by this
45.
Due to Defendant's induced infringement, Evans is suffering, and will continue to
Court.
suffer, irreparable injury.
46.
Evans has suffered damages as a result of Defendant's induced infringement
and/orDefendant has been unjustly enriched by such infringement.
47.
Evans is entitled to damages as a resuh of Defendant's induced infringement,
including but not limited to, adisgorgement ofall Defendant's profits, in an amount to be proven
at trial, as well as injunctive relief
48.
At all relevant times, Defendant knew that the Roof N Box product was the
subject of a design patent.
49.
Defendant willfully, knowingly, and intentionally induced mfringement of the
'509 Patent.
50.
Evans is entitled to treble damages for Defendant's willful infringement.
51.
Defendant's conduct, as alleged herein, renders this an "exceptional case" and
Evans is entitled to recover his attorney's fees and costs.

COUNT 111 - FEDERAL UNFAIR COMPETITION AND TRADE DRESS
INFRINGEMENT
52.
herein.
Plaintiffs incorporate by referenced Paragraphs 1-51, above as if fully set forth
53.
Plaintiffs have acquired exclusive and protectable trade dress rights in the
packaging and/or design of the RoofN Box product.

54.
The non-functional trade dress of the Roof N Box product includes its packaging
and/or design which includes asingle-story house, with removable roofing portions and layers of
roofing, siding, exterior shutters, outside lights, garage, window over garage, door lights, and
neutral colors, as depicted in Exhibit 6.
55.
Plaintiffs' trade dress is inherently distinctive and/or has acquired secondary
meaning such that customers associate the trade dress with Plaintiffs and Plaintiffs' Roof NBox
product.
56.
Defendant's use in commerce of Plaintiffs' trade dress constitutes a false
designation of origin and/or a false and misleading representation of fact that is likely to cause
confusion, deception, and mistake.
57.
Defendant's use in commerce of Plaintiffs' trade dress wrongly suggests that
Defendant's roofing model is affiliated, connected, or associated with Plaintiffs; that Defendant's
roofing model is manufactured or distributed by Plaintiffs; or that Plaintiffs have sponsored,

endorsed or approved the Defendant's roofing model.
58.
Defendant has infringed Plaintiffs' trade dress in violation of 11 U.S.C 1125(a),
and will continue to engage in such infringement unless enjoined by this Court.
59.
Due to Defendant's trade dress infringement, Plaintiffs are suffering, and will
continue to suffer, irreparable injury.
60.
Plaintiffs have suffered damages as a result of Defendant's trade dress
infringement and/or Defendant has been unjustly enriched by such infringement.
61.
Plaintiffs are entitled to damages as a result of Defendant's trade dress
infringement, including but not limited to, areasonable royalty, lost profits and/or disgorgement
ofall Defendant's profits, in an amount to be proven at trial, as well as injunctive relief
62.
Defendant's trade dress infringement was willful and intentional, and Plaintiffs
are entitled to recover treble damages and attorney's fees and costs.
rOTINT TV - COMMON T.AW UNFAIR COMPETITTON AND TRADE DRESS
INFRINGEMENT
63.
Plaintiffs incorporate by referenced Paragraphs 1-62, above as if fully set forth
64.
Plaintiffs have acquired common law trade dress rights in the packaging and/or
here
design of the RoofN Box product.
65.
Defendant's acts described herein are likely to confuse and deceive the public as
to the source and origin of Defendant's roofing model.
66.
Defendant has violated Plaintiffs' common law trade dress rights and otherwise
engaged in unfair competition with Plaintiffs under the laws of the Commonwealth of Virginia
and other applicable state law, such as Texas and New Jersey, including by using Plaintiffs'
confidential information and the fruits of Plaintiffs' time, labor and expense, to compete with
Plaintiffs.
67.
Defendant will continue to violate Plaintiffs' common law trade dress rights
and/or engage in unfair competition unless enjoined bythis Court.

68.
Due to Defendant's common law trade dress infnngement and/or unfair
competition, Plaintiffs are suffering, and will continue to suffer, irreparable injury.
69.
Plaintiffs have suffered damages as a result ofDefendant's violation ofPlaintiffs
common law trade dress rights and Defendant's unfair competition and/or Defendant has been
unjustly enriched by such wrongful conduct.
70.
Plaintiffs are entitled to damages as a result of Defendant's common law trade
dress infringement and/or unfair competition, including but not limited to a reasonable royalty,
lost profits and/or disgorgement ofDefendant's profits, in an amount to be proven at trial, as well
as injunctive relief
71.
Defendant's actions were intentional, willful, and undertaken with malice and in
reckless disregard for Plaintiffs' rights, and therefore, Plaintiffs are entitled to recover punitive
damages.
COUNT V - STATUTORY UNFAIR COMPETITION
72.
Plaintiffs incorporated by reference Paragraphs 1-71 above, as iffully set forth
73.
Defendant's principal place of business is in New Jersey, and it is subject to the
herein.
laws ofNew Jersey, including N.J. Code 56:8-2.
74.
N.J. Code 56:8-2 provides that "The act, use or employment by any person of
any unconscionable commercial practice, deception, fraud, false pretense, false promise,
misrepresentation, or the knowing concealment, suppression or omission of any material fact
with the intent that others rely upon such concealment, suppression or omission, in connection
with the sale or advertisement of any merchandise or real estate . . . whether or not any person
has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice."
75.
Defendant's conduct, as alleged herein, violates N.J. Code 56:8-2.
10
76.
Defendant, by its conduct, as alleged herein, will continue to violate N.J. Code
56:8-2 unless enjoined by this Court.
77.
Due to Defendant's violation of N.J. Code 56:8-2, Plaintiffs are suffering, and
will continue to suffer, irreparable injury.
78.
Plaintiffs have been damaged by Defendant's violation ofN.J. Code 56:8-2.
79.
Plaintiffs are entitled to recover damages in an amount to be proven at trial,
including treble damages, attorney's fees, and costs of suit, in addition to other legal or equitable
relief, including injunctive relief, as aresult ofDefendant's violation ofN.J. Code 56:8-2.
WHEREFORE, Plaintiffs Stephen F. Evans and Roof N. Box, Inc. request that the Court
enter judgment in their favor and award them the following relief against the Defendant Buildmg
Materials Corporation ofAmerica d/b/a GAF-Elk Corporation:
a.
On Counts MI, damages, including a reasonable royalty, lost profits, and/or
disgorgement of all Defendant's profits, in an amount to be proven at trial, treble

damages, attorney's fees and costs, and pre- and post-judgment interest as well as
injunctive relief.
b.
On Count III, damages, including a reasonable royalty, lost profits and/or
disgorgement of all Defendant's profits, in an amount to be proven at trial, treble

attorney's fees and costs, and pre- and post-judgment interest as well as
injunctive relief.
c.
On Count IV, damages, including a reasonable royalty, lost profits and/or
disgorgement of all Defendant's profits, in an amount be proven at trial, pumtive

damages, and pre- and post-judgment interest as well as injunctive relief
11
d.
On Count V, damages in an amount to be proven at trial, including treble
damages, attorney's fees, and costs of suit, in addition to other legal or equitable relief,
plus pre- and post-judgment interest as well as injunctive relief.
e.
Such other and further relief as the Court deems just and proper.
TRIAL BY JURY IS DEMANDED
Respectfully submitted,
STEPHEN F. EVANS and
ROOF N BOX, INC.
By;
Gregory N. Stilknan (VSB No. 14308)

Wendy McGraw (VSB No. 37880)
HUNTON & WILLIAMS LLP
500 East Main Street, Suite 1000
Norfolk, VA 23510
Telephone: 757.640.5300
Facsimile: 757.625.7720
Email: gstillman@hunton.com
wmcgraw@hunton.com
Counsel for Plsiintiffs
12
Case 1:16-cv-00282-GBL-IDD Document 1-1 Filed 03/14/16 Page 1 of 10 PageID# 13
EXHIBIT 1
Hiiiiiiiniiii
USOl D575509S
(12) United States Design Patent (lo) Patent no.:

Evans
(54)
US D575,509 s
(45) Date of Patent:
MODEL HOME DISPLAY AND CARRYING
0274,916 S
7/1984
CASE
0275,118
4,508,519
4,755,159
0308,124
S
A
A
S
8/1984
5,294,123
0370,343
5,588,249
6,260,707
0510,189
A
S
A
(76) Inventor:
Stephen Francis Evans, 508 Diamond

Plum Cir., #203, Viiginia Beach, VA
(US) 23452
(*)
Term:
(21)
Appl. No.: 29/288,838
(22)
Filed:
(51)
(52)
(58)
LOC(8)Cl
03-01
U.S.CI
D3/271.6
Field of Classification Search
D3/270,
D3/271.1, 271.6, 294-295: D6/432.434;
D7/628, 710: D9/600, 636, 640; D34/4;
206/822; 446/76, 476,478
See application file for complete search history.
14 Years
5/1927
Faulkner
8/1948
Chin
8/1951
Oi'Camillo
2,589,588 A
3/1952
Winnemore
D177,9I7
3,400,485
D230.661
D240,354
4,131,227
D260,595
4,359,185
0267,531
0267,615
0274,738
6/1956
Luft
9/1968
Catlin etal
446/76
3/1974
Andrews
446/76
021/511
099/41
446/85
03/271.6
6/1976
Finkelstein
03/238
09/636
12/1978
Patton et al
229/116.4
9/1981
Appel et al
07/710
11/1982
1/1983
1/1983
Lenger. Jr.
Lenger, Jr.
7/1984
Niittall et al
7/1988
Templeton et al
446/76
5/1990
Janzer
Black
099/30
3/1994
6/1996
If
019/28
021/511
446/478
473/182
03/271.6
12/1996
43/61
7/2001
206/575
10/2005
03/295
7/2005
362/155
Primary ExaminerGary D. Watson

Assistant ExaminerRoselynne Cody
(74) Attorney, Agent, or FirmWilliam G. Sykes
(57)
CLAIM
Tlie ornamental design for a model home display and carry

ing case, as shown.
DESCRIPTION
U.S. PATENT DOCUMENTS
Castro
4/1985
Hunt
Edmisson et al
Becker
* cited by examiner
References Cited
1,630,117 A
D 150,493 S
D 164,224 S
B1
S
5/0162847 Al
Jun.25,2007
(56)
** Aug. 26,2008
232/17
06/434
FIG. 1 is a front left isometric view of a model home display

and carrying case showing my new design;
FIG. 2 is a left side plan view thereof;
FIG. 3 is a top plan view thereof;
FIG. 4 is a right side plan view tliereof;
FIG. 5 is a front plan view thereof;

FIG. 6 is a back plan view thereof;
FIG. 7 is a back right isometric view thereof; and,
FIG. 8 is a front left isometric view thereof showing two
layers of removal roofing.
06/434
021/511
1 Claim, 8 Drawing Sheets
U.S. Patent
Aug. 26, 2008
Sheet 1 of 8
Fig.i
US D575,509 S
U.S. Patent
Aug. 26,2008
Sheet 2 of 8
Fig. 2
US D575,509 S
U.S. Patent
Aug. 26,2OO8
sheet 3 of 8
US D575,509 S
/
/
Fig. 3
U.S. Patent
Aug. 26,2OO8
sheet 4of8
Fig. 4
US D575,509 S
U.S. Patent
Aug. 26,2OO8
sheet 5of8
Fig-5
US D575,509 S
U.S. Patent
Aug. 26,2OO8
sheet 6of 8
Fig. 6
US D575,509 S
U.S. Patent
Aug. 26,2OO8
sheet 7of 8
Fig. 7
US D575,509 S
U.S. Patent
Aug. 26,2008
Sheet 8 of 8
Fig. 8
US D575,509 S
EXHIBIT 2
R(DF
BOX
Contractors Roofing Display

What is Roof 'N Box?
Program Available to:
Helping customers understand the meaning of roofing terms such as

valley, hip, ridge, and other tenns can be extremely difficult. That is
why
ROOF 'N BOX created a 3 dimensional roofing sales,
education, demonstration, and training visual aid tool designed to
help explain the roofing process to potential customers.
This product separates you from other companies by allowing you to
successfully explain all aspects of roofing and product placement.
The result? Increased credibility with the homeowner and the ability
to potentially close more sales!
How Can Roof 'N Box
Help You?
Educate the Property OwnerHelp build your business

Help Close More SalesBuilding trust equals more sales
Exclusive to GAF-ELK50% off discount pricing
Dedicated Account SupportAvailable to answer all your

questions
Investment?
$75 per box (50% off normal cost of $150)
Order One Today.
2010 GAF Materials Corporalion
Phone: 1-888-825-0795
Email: info@roofnbox.com
Online: www.roofnbox.com
EXHIBIT 3
ôof Model
Ceitêd
H tw"tteoflno Contnctof
A durable plastic, portable 3-dimensional model home

with removable decking, leak barrier, and shingle layers.
Educate consumers and close more GAF Lifetime Roofing
System sales by demonstrating the roofing process anc
its key components.
Benefits For You:
Cost To You:
Educating The Property Owner... can

enhance your business credibility and
$200*, includes: 3 removable roof
improve consumer trust
Close More Soles... consumers buy

from those they trust
Improve Warranty Soles
Opportunities... extend the life of
GAF's Lifetime Roofing System with a
Weather Stopper Golaen Pledge

Limited Warranty or Weather Stopper
System Plus Limited Warranty
'
layers, literature storage space, and

model carrying case
*LIMIT 2 per contractor
How To Get Started:
Contact your Territory Manager for

details or call the Certified Contractor
Hotline at 888-532-5767^ Option 3.
EXHIBIT 4
Shopping Cart
Total:
$0.00
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A durable plastic, portable 3-dimenslonal model home with
removable decking, leak barrier and shingle layers. Educate
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Includes:
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JS44 (Scv. 12/12)
CIVIL COVER SHEET

The JS 44 civil cover sheet and the infonnation contained herein neither rralece nor supplement the Hling and service ofpleadings orother papers wrMuired by'aw, exc^t as
provided
local rules ofcourt. This form, approved by the Jtîci^ Conference ofthe United States in September 1974, isrequired for the use ofthe Clerk ofCourt for the
purpose onnitiating the civil docket sheet
INSTRUaiONS ON NBJCr PAGEOFTHIS FORM.)
DEFENDANTS
I. (a) PLAINTIFFS
Stephen F. Evans and Roof N Box, Inc.
Building MaterialsCorporation of America,d/b/a
(b) County of Residence of FirstListed Plaintiff
Virginia Beach. VA
(EXCEPT IN U.S. PLAINTIFF CASE!^
GAF-Elk Corporation
Residence of First Listed Defendant Delaware | New Jefsev
,
ON V.S. PLAINTIFFCASES ONLY)
\ NfiJE: ^ tN LAND CONDEMNATION CASES, USE THE LOCATION OF
F=-jr^
'^ ^ THE TRACT OFLAND INVOLVED.
I ' ;
(c) Attorneys (Firm Name. AtUntxx, andTelephone Number) ] '
Attpmeys /-y Known)
/ n (
(7^)640-53^ \ A
Hunton & Williams LLP
500 E. Main Street, Suite 1000

Norfolk. VA 23510
III. CITIZENShW* of principal ?ARTIES (Place an "X"iOnBoxforPlamff
<
II. BASIS OF jurisdiction (Piacan "X"tnOne BaÔMy)
(For Dmrsiry Cases Only)
8 3 Federal Queition
U.S. Government
Citizen of ThifState
(UJi. Government Not a Party)
PlaintifT
andOne Boxfor Defendant)
PTF
DEP
0 1
PTF
1 incoiporsted or PrincipaJ Place
DEF
0 4
0 6
of Busineii In This State
O 4
U.S. Govemnient
Citizen of Another State
Diversity
(Indicate Cititenxhip ofParties in hem III)
Defendant
Incorporated 0n</Piincipa] Place
of Businei* In Another State
0 3
Citizen or Subject ofa
Foreign Nation
Fofeian Country
PERSONAL INJURY
PERSONAL INJURY
O 110 Iniurance
O 120 Marine
O 1.10 Miller Act
O 310 Airplane
O 315 AirplaneProduct
Liability
O 140Negotiable Instnmtent
O ISO Recoveryof Overpayment O 320 Assault, Libel &
Slander
& Enforcement of Judgment
O 330 Federal Employers'
O ISl Medicare Act
Liability
O 152 Recoveryof Defaulted
O 345 Marine Product
of Veteran's Benefits
O 160 Stockholders'Suits
O 190 Other Contract
O 350 Motor Vehicle

O 355 Motor Vehicle
O 195 Contract Product Liability
O 360 Other Personal
Liability
Product Liability
Injury
O
O
O
O
O 220 Foreclosure
O 230 Rent Lease St êctment

O 240 Tom to Land
440 OtherCivil Rights

441 Voting
442 Employment
443 Housing/
Accommodations
O 245 Ton Prtxiuct Liability

O 290 All Other Real Property
O 445 Amer. w/Disabiiities
Employment
O 446 Amer. w/Disabiiities
O 450Commeroe
O 460 Deportation
O 470 Racketeer Influenced and
a 830 Patent
Product Liîlity
CorruptOrganizations
O 840 Trademarlc
O 480 Consumer Credit

O 490CableTV
Injwy Product
Liability
PERSONAL PROPERTY O 710 Fair Labor Standards
Act
O 370 Other Freud
O 720 Labor/Managemem
O 371 TrtUh in Lending
Property Damage
O 385 Property Damage
O 86IHlA(I395fT)
a 862 Black Lung (923)
O 863 DIWOa)IWW (405(g))
O 864 SSID Title XVI
Relations
O 380 Other Persona]
O 740 Railway Labor Act
Product Liability
O 850 Securities/Commodities/
Exchange
O 890 Other Statutory Actions

O 891 AgriculturalAcu
O 893 Environmental Matters
O 895 Freedom of Infonnation
O 865 RSI (405(g))
O 751 Family and Medical
Act
Leave Act
O 790 Other Labor Litigation

O 791 EmployeeRetirement
IncomeSecuri^ Act
Habeas Corpus:
O 896 Arbitration
O 899 Administrative Procedure
870 Taxes (U.S.PIaintifr

or Defendant)
O 463 Alien Detainee
O 871 IRSThird Party
O 510 Motions to Vacate
Act/Review or Appeal of
Agency Decision
O 9S0eonstinttionBlityof
State Statutes
26 use 7609
Sentence
O 530 General
O 535 Death Penalty

Other:
O 540 Mandamus & Other
O 462Naturalization Application
O 465 Other Immigration
Actions
O 550 Civil Rightt
Other
O 410 Antitrust
O 820 Copyrights
MecBwIJ
210 Land Condemnation
O 400 State Reappoitionment

O 430 Banks and Banking
Personal Injmy
O 362 Pers<^ Injury
O 375 False Claimi Act
O 423 Withdrawal
28 use 157
Phannaceutical
O 368 Asbestos Personal
(Excludes Veterans)
O 153 Recovery of Overpayment
O 196 Franchise
O 690 Other
0 422Appeal 28 use 1S8
0 367 Health Care/
O 340 Marine
Snjdent Loans
O 625 DrugRelatedSeizure
of Property 21 USC881
O 365 Penonal Injury

Product Liability
O 555 Prison Condition
O 448 Education
O 560 Civil Detttnee

Conditions of
V, origin (Place an "X"inOneBox Only)
S 1 Original
Proceeding
O 2 Removed from
State Court
O 3 Remanded from
Appellate Court
4 Reinstated or OS Transferred from

Reopened
pother District
6 Multidistrict
Litigation
Cite the U.S. Civil Statute under which you arc filing (Do notdteJuHsdlethiuilstatuteii umless Ovmity):
28 United States Code 1331 and 1338(a)
VI, CAUSE OF ACTION Brief description of cause;
.
CHECK IF THIS IS ACLASS ACTION
VII. REQUESTED IN
UNDER RULE 23, F.R.Cv.P.
COMPLAINT:
VIII. RELATED CASE(S)
date
RECEIPT M
In excess of 1,000,000.00
(See instructions):
IF ANY
0341/2016
DEMAND S
UJvqUdUi C-.
AMOUNT
CHECK YES only ifdemanded in complaint:

JURY DEMAND:
DOCKET NUMBER
SIGNATURE OF ATJÊY OF RECORD
l/a-
APPLYING IFP
JUDGE
MAG. JUDGE
>1 Yes
0 No

JS44Revene (Rev. 12/12)
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 tmd seivice ofpleading or other papers as
required by law, except as provided by local rules ofcourt. This form, approved by the Judicial Conference ofthe United States in September 19^, is
required for the use ofthe Clerk ofCourt for the purpose ofinitiating the civil docket sheet. Consequently, acivil cover sheet is submitted to the Clerk ot
Court for each civil complaint filed. The attorney filing acase should complete the foim as follows:
I(a) Plaiatifib-Defendaots. Enter names (last, first, middle initial) ofplaintiffand defendant. Ifthe plaintiffor defendant is agovernment agency, use
(b)
(c)
only the fiill name or standard abbreviations. Ifthe plaintiffor defendant is an official within agovernment agency, idemify first the agency and
then the official, giving both name and title.
^
. j -u
th.
County ofResidence. For each civil case filed, except U.S. plaintiffcases, enter the name ofthe county where the first listed plaintiffresides at the
time
offiling. cases,
In U.S.theplaintiffcases,
enter theofthe
name"defendant"
ofthe county
in which
first listed
defendant
resides at the time of tiling. (NOTE;
condemnation
county ofresidence
is the
locationtheofthe
tract ofland
involved.)
u In .land
Attorneys. Enter the firm name, address, telephone number, and attorney ofrecord. Ifthere are several attorneys, list them on an attachment, notir
in this section "(see attachment)".
II.
Jurisdiction. The basis ofjurisdiction is set forth under Rule 8(a). F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X
in one ofthe boxes. Ifthere is more than one basis ofjurisdiction, precedence is given in the order shown below.
. ,
United States
States defendant.
plaintiff. (1)(2)Jurisdiction
based onis28suing
U.S.C.
1348.itsSuits
by agencies
uid officers
United
When the plaintiff
tiie 1345
UnitedandStates,
officers
or agencies,
place Mofthe
X inUnitedStates
this lx. are included here.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution ofthe Unued States, an amendmeni
to the Constitution, an act ofCongress or atreaty ofthe United States. In cases where the U.S. is aparty, the U.S. plaintiffor defendant code takes
oTvw^^'^fdfttSip\4)^^^^^
under 28 U.S.C. 1332, where parties are citizensofdifferent states. When Box 4is
citizenship ofthe different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
ni.
(c|tlMo.hl|.)ofPrincipal Parties. ThUsectionof(he JS 44 is to be completed ifdiversity ofcitizenship was indicated above. Marie th|s
section for each principal party.
IV.
Nature ofSuit. Place an "X" in the appropriate box. Ifthe nature ofsuit cannot be determined, be sure the cause ofaction, in Section VI below, is
sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine tfie nature ofsuit. Ifthe cause fits more thai
one nature of suit, select the most definitive.
V.
Origin. Place an"X" inone of the sixboxes.
Original Proceedings. (1) Cases which originate in tiie United States district courts.
. ^.-.i oa tt c r
uai
Removed from State Court. (2) Proceedings inhiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition forremoval isgranted, check this box.
^ ^
j .
.u r.iir
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 filinj,
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
NliiltidiS^^
this box when amultidistrict case is transferred into the district under auUiority ofTitle 28 U.S.C. Section 1407
When this box is checked, do not check (5) above.
VI.
Cause ofAction. Report the civil statute directiy related to the cause ofaction and give abriefdescription ofthe cause. Do not cite jurisdictiona
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 BriefDescription: Unauthorized reception ofcable service
Vn. Requested io Complaint Class Action. Place an "X" in this box ifyou are filing aclass action under Rule 23, F.R.Cv.P.
Demand. In tiiis space enter the actual dollar amount being demanded or indicate other demand, such as apreliminary injunction.
Juiy Demand. Check tiie appropriate box toindicate whether ornot ajury isbeing demanded.
Vni. Related Cases. This section ofthe JS 44 isused to reference related pending cases, ifany. Ifthere are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Dateandsigndie civil coversheet

HUNTON & WILLIAMS LLP
500 EAST MAIN STREET
SUITE 1000
NORFOLK, VIRGINIA 23510
WL JAMS
TEL
757 640 5300
FAX
757'625 >7720
WENDY C. MCGRAW
DIRECT DIAL: 757 640 5336
EMAIL: wmcgraw@hunton.com
March 14,2016
FILE NO: 86612.2
By Hand Delivery
Honorable Fernando Galindo
Clerk, United States District Court
Eastern District of Virginia

600 Granby Street
Norfolk, VA 23510
Stephen F. Evans and Roof N Box, Inc. v.

Building Materials Corporation of America, d/b/a GAF-Elk Corporation
New COMPLAINT
Dear Mr. Galindo:
We enclose for filing on behalf of Stephen F. Evans and Roof N Box, Inc.:
Original Complaint;
Civil Cover Sheet;
Summons;
Financial Interest Disclosure Statement;
RECEIVED
IWAiLROOM
MAR I 5 ^nie
CLERK. U S. nicALFX'
.s
Report on the Filing or Determination of an Action Regarding a Patent or Trademark;

and
up.
Filing fee in the amount of $400.00.
We respectfully request that your office contact us when the service package is ready for pick
We will arrange service on the Defendant by private process server.
Thank you for your cooperation.
Very truly yours,
kWcUOr
Wendy C. McGraw
WCM/lpj
Enclosures
ATLANTA AUSTIN BANGKOK BEIJING BRUSSELS CHARLOTTE DALLAS HOUSTON LONDON LOS ANGELES
McLEAN MIAMI NEW YORK NORFOLK RALEIGH RICHMOND SAN FRANCISCO TOKYO WASHINGTON
www.hunton.com
GBL-IDD Document 1-9 Filed 03/14/16 P
DistHct Coutt
Receipt ferabers 24&e303834
CashisrUs tlevinso
Transaction Dates @3/14/2016
Pap Naies HONTOH fiHS yiLM :

CimFILWGFEE
Fots MUMTOH SHD SILiM .
:vflBOuntr r ;/, ;$4S8Ja
ilteCH ' '

Check/feiffiy OifdeT ta 1022737
AtiTendeTBds 1488.06
Total Due? : .
Total TendeTed5 f40y
Cfiange Ms
$iJ@
HUHTOH S MILLIAilS
'lsl6cv28S

Evans v. Building Materials - Complaint

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Evans v. Building Materials - Complaint

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Case 1:16-cv-00282-GBL-IDD Document 1 Filed 03/14/16 Page 1 of 12 PageID# 1

IN THE UNITED STATES DISTRICT COURT

CLERK. US DISTRICT COURT

ROOF N BOX, INC.,

Case No. IJLc^MSt

Complaint against Defendant Building Materials Corporation of America d/b/a GAF-Elk

Plaintiff Stephen F. Evans ("Evans") is an adult citizen of the Commonwealth of

Virginiawho resides in Virginia Beach, Virginia.

Case 1:16-cv-00282-GBL-IDD Document 1 Filed 03/14/16 Page 2 of 12 PageID# 2

Defendant Building Materials Corporation of America d/b/a GAF-Elk

highlight and differentiating tool.

Case 1:16-cv-00282-GBL-IDD Document 1 Filed 03/14/16 Page 3 of 12 PageID# 3

Plaintiffs invested substantial time, effort, and funds in designing and

manufacturing the Roof N Box product.

The RoofN Box product was favorably received in the marketplace.

In 2008, a representative of GAF contacted Evans in Virginia Beach and

In October 2008, Evans sent an email from Virginia Beach to a GAF

the Roof N Box product to GAF Contractors.

representatives in GAF's Dallas, Texas office.

Case 1:16-cv-00282-GBL-IDD Document 1 Filed 03/14/16 Page 4 of 12 PageID# 4

terminating the Promotional Agreement with RoofN Box.

Thereafter, GAF commenced manufacturing and selling, and upon information

and belief, continues to manufacture and sell, a competing roofing model.

Case 1:16-cv-00282-GBL-IDD Document 1 Filed 03/14/16 Page 5 of 12 PageID# 5

Defendant's roofing model infringesthe '509 Patent.

Plaintiffs incorporate by reference Paragraphs 1-29, above as if fully set forth

Case 1:16-cv-00282-GBL-IDD Document 1 Filed 03/14/16 Page 6 of 12 PageID# 6

infnnging roofing model unless enjoined by this Court.

Due to Defendant's infringement, Evans is suffering, and will continue to suffer,

Evans has suffered damages as a result of Defendant's infringement and/or

Defendant has been unjustly enriched by such infringement.

Evans is entitled to damages as a result of Defendant's infringement, including

subject of a design patent.

Defendant willfully, knowingly, and intentionally infnnged the '509Patent.

Evans is entitled to treble damages for Defendant's willful infringement.

Defendant's conduct, as alleged herein, renders this an "exceptional case" and

Evans is entitled to recover his attorney's fees and costs.

Plaintiffs incorporate by referenced Paragraphs 1through 40, above as if fully set

Pursuant to 35 U.S.C. 271(b) "whoever actively induces infringement of a patent

shall be liable as an infnnger."

Case 1:16-cv-00282-GBL-IDD Document 1 Filed 03/14/16 Page 7 of 12 PageID# 7

Due to Defendant's induced infringement, Evans is suffering, and will continue to

suffer, irreparable injury.

Evans has suffered damages as a result of Defendant's induced infringement

and/orDefendant has been unjustly enriched by such infringement.

Evans is entitled to damages as a resuh of Defendant's induced infringement,

subject of a design patent.

Defendant willfully, knowingly, and intentionally induced mfringement of the

Evans is entitled to treble damages for Defendant's willful infringement.

Defendant's conduct, as alleged herein, renders this an "exceptional case" and

Evans is entitled to recover his attorney's fees and costs.

Plaintiffs incorporate by referenced Paragraphs 1-51, above as if fully set forth

Case 1:16-cv-00282-GBL-IDD Document 1 Filed 03/14/16 Page 8 of 12 PageID# 8

packaging and/or design of the RoofN Box product.

Plaintiffs' trade dress is inherently distinctive and/or has acquired secondary

Defendant's use in commerce of Plaintiffs' trade dress constitutes a false

Defendant's use in commerce of Plaintiffs' trade dress wrongly suggests that

roofing model is manufactured or distributed by Plaintiffs; or that Plaintiffs have sponsored,

Defendant has infringed Plaintiffs' trade dress in violation of 11 U.S.C 1125(a),

continue to suffer, irreparable injury.

Plaintiffs have suffered damages as a result of Defendant's trade dress

infringement and/or Defendant has been unjustly enriched by such infringement.

Case 1:16-cv-00282-GBL-IDD Document 1 Filed 03/14/16 Page 9 of 12 PageID# 9

Plaintiffs are entitled to damages as a result of Defendant's trade dress