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SUITE
PHOENIX, ARIZONA
440
85012
(602) 274-4400 / FAX : (602) 274-4401
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AND
DEMAND FOR JURY TRIAL
Defendants.
Plaintiff MMI, Inc. (hereinafter Plaintiff), for its Complaint against the
Defendants, alleges as follows:
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v.
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No.
Plaintiff,
THE PARTIES
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existing under the laws of the State of Arizona, with its principal place of business at
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2.
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3.
Upon
information
and
belief,
Metal
Motorsports
has
been
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insolvent.
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440
85012
(602) 274-4400 / FAX : (602) 274-4401
SUITE
PHOENIX, ARIZONA
At all times relevant, The Pep Boys Manny Moe & Jack of California, Inc.
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associations or otherwise of defendants John and Jane Does 1 through 97, and Black
and White Companies 1-97, are unknown to Plaintiff, who therefore sues said
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alleges, that each of the Defendants designated herein as such is legally responsible in
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some manner for the events and happenings herein referred to, and thereby
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proximately caused injury and damage to Plaintiff as herein alleged. Plaintiff prays for
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leave to amend this Complaint so as to allege their true names and capacities as
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ascertained.
JURISDICTION AND VENUE
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7.
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1331 and 1338 because this action, at least in part, is for patent infringement and
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arises under the Patent laws of the United States, Title 35 of the United States Code.
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citizenship exists between the parties and the amount in controversy exceeds the sum
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or value of $75,000, exclusive of interest and costs. This Court has jurisdiction over
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any Arizona state law claims under principles of pendent, ancillary, and supplemental
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8.
1400(b) because, inter alia, one or more of the acts of infringement complained of took
place in this district and have had or will have had effect in this judicial district.
GENERAL AVERMENTS
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440
85012
(602) 274-4400 / FAX : (602) 274-4401
SUITE
PHOENIX, ARIZONA
9.
MMI and its principal have been leaders in designing and developing
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procured several patents, including design patents. Plaintiffs products built around
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these patented designs have been widely successful, appreciated and embraced by the
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industry.
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On April 28, 2009, United States Patent No. D591,203S (the 203
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Patent) was duly and legally issued to Christopher J. Martin. MMI is the assignee of
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all rights in and title to the 203 Patent. A true and correct copy of the 203 Patent is
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13.
Defendant Pep Boys was made well aware of the existence, value and
scope of the 203 Patent, as well as other patents owned by or otherwise assigned to
Plaintiff because it was a defendant in a prior lawsuit for infringement of that Patent
arising from the infringing marketing, distribution and sale of a product through Baja,
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Inc. (Baja). Defendant Pep Boys settled the claims against it regarding the 203
440
85012
(602) 274-4400 / FAX : (602) 274-4401
SUITE
PHOENIX, ARIZONA
After that litigation was concluded, and despite its direct knowledge of
the 203 Patent, Pep Boys then agreed to market, distribute and sell an essentially
identical product for Defendant Metal Motorsports. The nearly identical nature of the
products makes it inarguable that Pep Boys was on notice, at least constructively, that
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for the specific purpose of marketing, importing, distributing and selling mini bikes.
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Upon information and belief, the company was formed with the assistance and
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direction of a former employee of a company called Baja, Inc., who had been directly
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involved with the marketing, importing, distributing and selling mini bikes during his
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employment with Baja. Upon information and belief, Defendant Metal Motorsports
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was directly aware of the 203 Patent and of the prior litigation concerning that Patent.
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appreciation of the value and scope of the 203 Patent, upon information and belief, it
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participated in the design, manufacture, marketing, importing, sale, offer for sale, or
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use of a product that it knew to incorporate the design of the 203 Patent (hereinafter
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Upon information and belief, Defendant Metal Motorsports has sold the
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Infringing Products to, or have otherwise made the Infringing Products available for
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Upon information and belief, Defendant Pep Boys has thereafter made,
imported, distributed, sold, offered for sale and/or used Infringing Products.
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Pep Boys have sold the Infringing Products to, or have otherwise made the Infringing
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85012
(602) 274-4400 / FAX : (602) 274-4401
SUITE
PHOENIX, ARIZONA
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imported, distributed, sold, offered for sale and/or used Infringing Products.
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induced and currently is actively inducing others to infringe one or more claims of the
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contributorily infringed and currently is contributorily infringing the 203 Patent by its
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aware of its infringing activity since prior to its first sale of the Infringing Products.
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Upon information and belief, Defendants Pep Boys and Recon have
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been aware of the infringing activity since at least June 5, 2014, when they were sent a
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importation, distribution, sale, offers for sale and/or use of the Infringing Products,
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COUNT I
PATENT INFRINGEMENT
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440
85012
(602) 274-4400 / FAX : (602) 274-4401
SUITE
PHOENIX, ARIZONA
This cause of action arises under the Laws of the United States, Title 35,
Upon information and belief, Defendants have infringed the 203 Patent
under 35 U.S.C. 271 et seq. Upon information and belief, this infringement was
intentional.
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ISRAEL & GERITY, P.L.L.C.
29.
32.
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Patent under 35 U.S.C. 271 et seq. Upon information and belief, these ongoing acts
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respective officers and owners, have, without authority, consent, right or license, and
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in direct infringement of the 203 Patent, made, imported, distributed, sold, offered for
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sale and/or used the Infringing Products in this country, and such Infringing Products
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provided for by 35 U.S.C. 289 applies, and Defendants are liable to Plaintiff to the
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extent of their total profit on the Infringing Products, but not less than $250.
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COUNT II
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440
85012
(602) 274-4400 / FAX : (602) 274-4401
SUITE
PHOENIX, ARIZONA
This cause of action arises under the Patent Laws of the United States,
respective officers and owners, have, in this country, actively and/or intentionally
induced others to make, import, distribute, sell, offer for sale and/or use the Infringing
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ISRAEL & GERITY, P.L.L.C.
36.
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COUNT III
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This cause of action arises under the Patent Laws of the United States,
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made, imported, distributed, sold, offered for sale and/or used within the United
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material part of the invention, knowing the same to be especially made or adapted for
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use in the infringement of the 203 Patent and not a staple article or commodity of
commerce suitable for substantial non infringing use.
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INJUNCTIVE RELIEF
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PHOENIX, ARIZONA
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enjoined from continuing improper acts, including but not limited to, wrongfully
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infringing, inducing infringement of, and contributing to the infringement of the 203
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Patent.
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permanent injunction, prohibiting Defendants from making, using, selling, offering for
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sale, importing and offering to import any and all Infringing Products.
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(a) because
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Plaintiff has a likelihood of success on the merits; (b) Plaintiff faces immediate and
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irreparable harm due to Defendants acts and conduct; (c) that there is a special
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urgency warranting the grant of injunctive relief; and (d) the balance of hardship tips in
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favor of Plaintiff.
DAMAGES
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harm and injury as a result of Defendants aforesaid activities. Defendants will, unless
restrained and enjoined, continue to act in the unlawful manner complained of herein,
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440
85012
(602) 274-4400 / FAX : (602) 274-4401
SUITE
PHOENIX, ARIZONA
suffered monetary damages in an amount that has not yet been determined, but upon
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Infringing Products; the imposition of a constructive trust for the benefit of Plaintiff
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upon all such funds in the custody or control of Defendants; and to such other
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total profit on the Infringing Products, but not less than $250, as an additional remedy
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induced others to infringe, and/or contributorily infringed United States Letters Patent
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No. D591,203S.
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B.
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servants, attorneys, privies, successors and assigns, and all holding by, through or
under Defendants, and all those acting for or on the behalf of Defendants, or in active
concert, participation, or combination with them, be enjoined and restrained,
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immediately and preliminarily, during the pendency of this action and permanently
thereafter from:
(1)
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SUITE
PHOENIX, ARIZONA
440
85012
(602) 274-4400 / FAX : (602) 274-4401
C.
servants and employees, to deliver up to this Court, and to permit the seizure by
Officers appointed by the Court of all articles and materials infringing upon the rights
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destruction on the issuance of a final Order in this action, including all Infringing
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Products, and all equipment, molds and other matter or materials for reproducing such
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Infringing Products.
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(30) days after entry of final judgment of this cause a written statement under oath
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setting forth the manner in which Defendants have complied with the final judgment.
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E.
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design patent, be ordered to account for and pay over to Plaintiff all their respective
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gains, profits and advantages derived from the infringement of Plaintiffs Patents,
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pursuant to 35 U.S.C. 289, or such damages as may appear to the Court as proper
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G.
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patent rights, that Defendants be ordered to pay Plaintiff enhanced damages (e.g.,
treble damages).
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85012
(602) 274-4400 / FAX : (602) 274-4401
SUITE
PHOENIX, ARIZONA
H.
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I.
Plaintiffs patent rights, that this case be found to be exceptional and that Defendants
be ordered to pay Plaintiffs reasonable attorneys fees and experts fees.
L.
That Plaintiff has such other and further relief as the Court may
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CERTIFICATE OF SERVICE
I hereby certify that on this 20th day of July 2016, I electronically transmitted
Plaintiffs Complaint and Jury Demand using the CM/ECF system for filing. There
are no CM/ECF registrants at this time.
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PHOENIX, ARIZONA
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85012
(602) 274-4400 / FAX : (602) 274-4401
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EXHIBIT A
203 Patent