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Peter M. de J onge, UT 7185
J ed H. Hansen, UT 10679
Eric E. Westerberg, UT 12712
THORPE, NORTH & WESTERN, LLP
8180 South 700 East, Suite 350
Sandy, Utah 84070
Telephone: (801) 566-6633
Facsimile: (801) 566-0750

Attorney for American Covers, Inc. and Local Counsel for Brandywine Product Group
International, Inc.

Francis DiGiovanni, DE 3189 (Pro Hac Vice Application to be Filed)
Drinker Biddle & Reath LLP
222 Delaware Ave., Ste. 1410
Wilmington, DE 19801-1621

Attorney for Plaintiff, Brandywine Product Group International, Inc.


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DISTRICT

AMERICAN COVERS, INC., a Utah
corporation, and BRANDYWINE PRODUCT
GROUP INTERNATIONAL, INC., a
Delaware corporation,

Plaintiffs,
v.

GREENBRIER INTERNATIONAL, INC., a
Delaware Corporation, and DOLLAR TREE
STORES, INC., a Virginia Corporation,

Defendants.


Case No.: 2:14-cv-00490


COMPLAINT
WITH JURY DEMAND


J udge Paul M. Warner

Plaintiffs American Covers, Inc. (“American Covers”) and Brandywine Product Group,
Inc. (“BPG”) (collectively “Plaintiffs”) by and through their counsel hereby file this Complaint
with J ury Demand against Defendants Greenbrier International, Inc. and Dollar Tree Stores, Inc.
(collectively “Dollar Tree” or “Defendants”).
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COMPLAINT
Plaintiffs complain and allege as follows:
PARTIES, JURISDICTION AND VENUE
1. American Covers, Inc. is a Utah corporation having a principal place of business
at 102 West 12200 South, Draper Utah 84020.
2. Brandywine Product Group, Inc. is a Delaware corporation having a principal
place of business at 3 Mill Road, Suite 202, Wilmington Delaware 19806.
3. Upon information and belief, Defendant Greenbrier International, Inc. is a
Delaware corporation having a principal place of business at 500 Volvo Parkway, Chesapeake,
Virginia 23320.
4. Upon information and belief, Defendant Dollar Tree Stores, Inc. is a Virginia
corporation having a principal place of business at 500 Volvo Parkway, Chesapeake, Virginia
23320.
5. Plaintiffs bring this action under U.S. patent laws, 35 U.S.C. §§ 1 et seq., under
the Lanham Trademark Act, Title 15, United States Code §1051, et seq., and under various other
Utah state law and common law provisions.
6. This Court has subject matter jurisdiction over this action under 28 U.S.C. §§
1331 and 1338.
7. This Court has supplemental jurisdiction over any state law statutory and common
law claims pursuant to 28 U.S.C. § 1367.
8. Upon information and belief, this Court has specific personal jurisdiction over
Defendants as Defendants have purposefully directed their activities toward the state of Utah.
9. Upon information and belief, this Court has general personal jurisdiction over
Defendants since their contacts with Utah are substantial, continuous, and systematic and this
action is based upon activities that arise out of or are related to those contacts.
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10. Venue is proper in this judicial district pursuant to 28 U.S.C. §1391 because
Defendants conduct business directly related to the patents and trade dress at issue in this case,
thereby harming Plaintiffs in this judicial district.


GENERAL ALLEGATIONS
PLAINTIFFS’ PRODUCTS AND INTELLECTUAL PROPERTY

11. Plaintiffs are in the business of inventing, developing, manufacturing,
distributing, and selling various air fresheners and other products.
12. BPG is the owner of two design patents designated as United States Design Patent
Nos. D604,826 and D614,279 (collectively the “BPG Patents”). The BPG Patents claim the
design of an air freshener product that approximates the shape of a flower. The design claimed
by the BPG Patents is illustrated below.



13. American Covers is an exclusive licensee of the BPG Patents within the
automotive air freshener channel.
14. American Covers manufactures, markets, and sells throughout the United States
air freshener products, including air freshener devices that approximate the shape of a flower (the
“Flower Air Freshener Products”). Through the extensive sale, marketing, and distribution of the
Flower Air Freshener Products, the design and trade dress of the products have become
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distinctive and consumers associate its design and trade dress with American Covers. An image
of one example of the Flower Air Freshener Product is illustrated below.









15. The trade dress design features associated with the American Covers’ Flower Air
Freshener Product are the subject of a pending trademark application for the United States Patent
and Trademark Office as U.S. Ser. No. 86/295,025.

DEFENDANTS’ MISCONDUCT
16. Upon information and belief, Defendants make, use, sell, offer for sale, and
import into the United States an air freshener that infringes the BPG Patents (the “Infringing
Products”). An image of one example of the Defendants’ Infringing Products is shown below.









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17. Upon information and belief, Defendants’ continued manufacture, use, sale,
import, and offer for sale and distribution of their Infringing Products has injured, is injuring, and
will continue to cause irreparable injury to Plaintiffs.
18. Additionally, upon information and belief, Defendants acted in an objectively
reckless manner with respect to Plaintiffs’ patent rights. Upon information and belief,
Defendants made, used, sold, offered for sale, and imported into the United States their
Infringing Products knowing that it was highly likely that their acts would constitute
infringement of a valid patent. Upon information and belief, Defendants knew or should have
known that their actions were highly likely to result in the infringement of a valid patent. As a
consequence, Defendants have engaged in willful infringement of the BPG Patents and Plaintiffs
are therefore entitled to treble damages and attorneys’ fees as well as costs incurred in this action
along with prejudgment interest under 35 U.S.C. §§ 284 and 285.
19. Defendants make, use, sell, import, offer for sale, and distribute their Infringing
Products in the United States. These products copy the trade dress of American Covers’ Flower
Air Freshener Products.
20. Defendant is in direct competition with American Covers and Defendants’
Infringing Products are substantially identical to American Covers’ Flower Air Freshener
Products. Moreover, Defendants’ and American Covers’ products are marketed through
identical channels of trade and to identical consumers.
21. In view of the above, it is clear that Defendants’ use of their confusingly similar
product design is likely to cause confusion, or to cause mistake, or to deceive consumers as to
the affiliation, connection, or association of Defendants with American Covers Flower Air
Freshener Products.
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22. Upon information and belief, Defendants have purposefully copied American
Covers’ Flower Air Freshener Products’ trade dress to unlawfully benefit from American
Covers’ goodwill in the marketplace.
23. Plaintiffs have been, and continue to be, significantly damaged by Defendants’
actions. So long as Defendants continue performing the unlawful and improper actions
described in this Complaint, Plaintiffs will continue to suffer irreparable harm that will not be
fully compensable by money damages.

FIRST CAUSE OF ACTION
(PATENT INFRINGEMENT OF THE BPG PATENTS UNDER 35 U.S.C. § 271)
24. Plaintiffs hereby incorporate by reference each and every preceding allegation of
this complaint as if set forth fully herein.
25. BPG owns the BPG Patents.
26. American Covers is an exclusive licensee of the BPG Patents within the
automotive air freshener channel.
27. Defendants make, use, sell, offer for sale, and/or import into the United States air
fresheners that directly infringe the BPG Patent.
28. At no time has BPG or American Covers granted Defendants permission, license,
or authorization to use the designs claimed in the BPG Patents.
29. Upon information and belief, Defendants’ infringing activities have damaged
BPG and American Covers in an amount to be proven at trial. Among other remedies, American
Covers is entitled to its lost profits or, in the alternative a reasonable royalty to adequately
compensate American Covers for Defendants’ infringing activities under 35 U.S.C. §284.
Additionally, the harm to American Covers arising from these acts by Defendants is not fully
compensable by money damages. American Covers has suffered and continues to suffer
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irreparable harm that has no adequate remedy at law and that will continue unless the infringing
conduct by Defendants is preliminarily and permanently enjoined.
30. Upon information and belief, Defendants acted in an objectively reckless manner
with respect to Plaintiffs’ patent rights. Upon information and belief, Defendants made, used,
sold, and offered for sale their infringing air freshener products knowing that it was highly likely
that their acts would constitute infringement of a valid patent. Defendants knew, or should have
known, that their actions were highly likely to result in the infringement of a valid patent. As a
consequence, Defendants have engaged in willful infringement of the patents-in-suit and
American Covers is therefore entitled to treble damages and attorneys’ fees as well as costs
incurred in this action along with prejudgment interest under 35 U.S.C. §§ 284 and 285.


SECOND CAUSE OF ACTION
(TRADE DRESS INFRINGEMENT AND UNFAIR COMPETITION, 15 U.S.C. § 1125(A) AND
COMMON LAW)
31. Plaintiffs hereby incorporate by this reference each and every preceding allegation
as if set forth fully herein.
32. The trade dress design features associated with the American Covers’ Flower Air
Freshener Product are the subject of a pending trademark application for the United States Patent
and Trademark Office as U.S. Ser. No. 86/295,025.
33. The trade dress design features associated with the American Covers’ Flower Air
Freshener Products are indicative of American Covers and its air fresheners, are inherently
distinctive, and have acquired secondary meaning with the consuming public.
34. Defendants’ Infringing Products use design features that are likely to cause
confusion, or to cause mistake, or to deceive as to the affiliation, connection, association, origin,
sponsorship, or approval of their goods and commercial activities in light of American Covers’
trade dress.
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35. By engaging in these activities, Defendants have infringed American Covers’
trade dress and are liable for unfair competition under 15 U.S.C. § 1125(a)(1)(A) and under the
common law.
36. American Covers has suffered actual damages as a result of Defendants’ trade
dress infringement and unfair competition in an amount to be proven at trial. Additionally, the
harm to American Covers arising from Defendants’ acts is not fully compensable by money
damages. American Covers has suffered, and continues to suffer, irreparable harm that has no
adequate remedy at law and that will continue unless Defendants’ conduct is preliminarily and
permanently enjoined.
37. Defendants’ continued use of American Covers’ trade dress is willful and
intentional. As a result, American Covers is further entitled to treble damages and an award of
costs and attorneys’ fees.

THIRD CAUSE OF ACTION
(UNFAIR COMPETITION, UTAH CODE ANN. §13-5A-102, 103 AND UTAH COMMON LAW)
38. Plaintiffs hereby incorporate by this reference each and every preceding allegation
as if set forth fully herein.
39. BPG owns the BPG Patents.
40. American Covers is an exclusive licensee of the BPG Patents within the
automotive air freshener channel.
41. Defendants have engaged in unfair methods of competition by copying American
Covers’ trade dress.
42. Defendants make, use, sell, offer for sale, and/or import into the United States air
fresheners that infringe the BPG Patents.
43. Defendants have engaged in unfair methods of competition by infringing
American Covers’ trade dress.
44. Upon information and belief, American Covers has been injured by Defendants’
infringing acts.
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45. By engaging in the above-described activities, Defendants have engaged in unfair
competition under Utah Code Ann. §13-5a-102, 103 and under Utah common law.
46. American Covers and BPG have suffered actual damages as a result of unfair
business practices by Defendants in an amount to be proven at trial. Additionally, the harm to
American Covers arising from Defendants’ acts is not fully compensable by money damages.
American Covers has suffered, and continues to suffer irreparable harm that has no adequate
remedy at law and that will continue unless this unfair conduct by Defendants is preliminarily
and permanently enjoined. Furthermore, American Covers is entitled to its attorneys’ fees and
costs.

WHEREFORE, it is respectfully requested that the Court enter judgment in
favor of Plaintiffs as follows:
A. That the Court enter judgment that Defendants have infringed the BPG Patents.
B. That the Court enter judgment that the Defendants have competed unfairly
pursuant to 15 U.S.C. §1125 and infringed American Covers’ trade dress under the Lanham Act
and common law.
C. That the Court enter judgment that Defendants have competed unfairly pursuant
to Utah Code. Ann. §§ 13-5a-102, 103 and Utah common law.
D. That Defendants be ordered to pay damages to Plaintiffs, together with interest, in
an amount be determined by this Court.
E. That the Court award Plaintiffs treble damages pursuant to 35 U.S.C. §284.
F. That the Court award Plaintiffs costs and attorneys’ fees related to this action.
G. That the Court award Plaintiffs prejudgment interest.
H. That Plaintiffs have such other and further relief as shall seem just and proper to
the Court.
I. That the Court grant preliminary and permanent injunctive relief enjoining
Defendants, their officers, directors, principals, agents, servants, employees, successors and
assigns, and all other aiding, abetting, or acting in concert or active participation therewith, from
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directly or indirectly infringing the patents and trade dress in suit, including with limitation,
precluding Defendants from making, using, selling, offering for sale, or importing the infringing
products.

DATED: J uly 2, 2014 THORPE NORTH & WESTERN, LLP

/Jed H. Hansen/
Peter M. de J onge
J ed H. Hansen
Eric E. Westerberg

Attorney for American Covers, Inc. and Local
Counsel for Brandywine Product Group
International, Inc.

DRINKER BIDDLE & REATH LLP

/Francis DiGiovanni/
Signed by filing attorney with permission
Francis DiGiovanni, (Pro Hac Vice Application
to be Filed)

Attorney for Plaintiff, Brandywine Product
Group International, Inc.

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