Professional Documents
Culture Documents
Plaintiff,
ase No. 2:23-cv-00341-PPS-JEM
C
v. Hon. Philip P. Simon
Defendants.
NowcometheDefendants,MichaelEdwardKlott(“Klott”),Dr.PermagreenLLC
(“Dr. Permagreen”) and FTW Investments LLC (“FTW Investments”), Klott, Dr.
andthroughtheirattorney,BrandonKizy,fortheirAnswertoPlaintiff’sComplaintstate
as follows:
INTRODUCTION
1. ThisactioninvolvesnumerousviolationsoftheLanhamAct,15U.S.C.§§1051et.
seq. (“Lanham Act”), including trademark infringement under Section 32(1) of
the Lanham Act, 15 U.S.C. §1114(1); False Designation of origin under Section
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43(a) of the Lanham Act, 15 U.S.C. §1125; and for False and Deceptive
also alleges violations of Indiana’s Deceptive Trade Practices Act and Unfair
Competition.
ANSWER: Neither admit nor deny, but leave Plaintiff to its proofs.
2. TheclaimsarisefromthewillfulanddeliberateeffortsofDefendantstocompete
confusion in the marketplace and bolster their own sales by falsely describing
productsasmanufacturedby,brandedby,associatedwith,sponsoredby,orsold
by Perma-Green.
intellectual property rights, and otherwise deceiving the consuming public and
Defendants neitherdeceivedtheconsumingpublicnortarnishedPerma-Green’s
reputation.
PARTIES
4. Perma-GreenisanIndianacompanybasedinValparaiso,Indiana.Perma-Green
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stand-onspreadersprayer.Perma-Greenisanindustryleaderinbothoriginality
ANSWER: Neither admit nor deny, but leave Plaintiff to its proofs.
5. Defendant Klott is an individual who resides at 55 Henry Deblouw, Memphis,
Michigan.
ANSWER: Admit.
6. Defendant Dr. Permagreen is a Michigan limited liability company for which
ANSWER: Admit.
7. Defendant FTW Investments is a Michigan limited liability company for which
ANSWER: Admit.
8. ThisCourthassubjectmatterjurisdictionofPerma-Green’sComplaintunderone
or more sections of the Lanham Act, 15 U.S.C. §§ 1051 et.seq.(“LanhamAct”),
ANSWER: Admit.
business in this District, including the solicitation and sale of goods and other
actsintotheDistrictthatgiverisetotheclaimsinthisComplaint.Defendantalso
deceptively made purchases from Perma-Green, which is located within the
District.
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ANSWER: Admit.
FACTUAL ALLEGATIONS
11. Perma-Green is a manufacturing company based in Valparaiso, Indiana that
since1973hassoldcommerciallawn-careproductsthroughouttheUnitedStates.
ANSWER: Neither admit nor deny, but leave Plaintiff to its proofs.
No. 3590584 (the “Mark”), in Class 7 for commercial lawn equipment.
ANSWER: Neither admit nor deny, but leave Plaintiff to its proofs.
13.Perma-Green’sMarkisincontestable,havingbeeninusesinceatleast2003and
ANSWER: Neither admit nor deny, but leave Plaintiff to its proofs.
14. The Mark is instantly recognizable in the commercial lawn care industry and
its products.
ANSWER: Neither admit nor deny, but leave Plaintiff to its proofs.
15.TheMarkissowellknownintheindustrythatothercompaniesdesiretobecome
and have become authorized resellers of Perma-Green equipment and parts.
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ability to use the Mark for selling commercial lawn care equipment and parts.
ANSWER: Neither admit nor deny, but leave Plaintiff to its proofs.
16.Perma-Green protects the integrity of its brand by exclusively permitting
ANSWER: Neither admit nor deny, but leave Plaintiff to its proofs.
goodwill, inpartbecauseofPerma-Green’scommitmenttomanufacturinghigh
quality productsanditscommitmenttoprovidingcustomerswithahighquality
of service..
ANSWER: Neither admit nor deny, but leave Plaintiff to its proofs.
18.Defendants offer and sell equipment allegedly capable of working with
equipment–just as Goodyear and BelleTire sell tires compatible with Ford and
parts and equipment directly from Perma-Green which were simply resold by
Defendants.
19.For example, Defendants have sold more than 1,400 products on e-Bay.
ANSWER: Defendants have sold nearly 1,400 products in total through Ebay,
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20.Defendantshavecreatedconsiderableconfusionregardingthesourceoforiginof
ANSWER: There has been no issues regarding confusion regarding the goods
ANSWER:Thename“Dr.Permagreen”hasnolongerbeeninusebyDefendants
since May of 2023, when Plaintiff first requested Defendants to change the name.
22.Klott usedhisentity,FTWInvestments,topurchasePerma-Greenproductsthat
ANSWER: Defendanthasmultipleentitiesandutilizeddifferentcompanycredit
cards to maximize credit card points and did not procure goods from Plaintiff
23.Uponinformationandbelief,KlottdirectedFTWInvestmentstomakepurchases
ofPermaGreenpartstoavoidsuspicionfromPerma-Green,butwiththeintentto
ANSWER: Defendanthasmultipleentitiesandutilizeddifferentcompanycredit
cards to maximize credit card points and did not procure goods from Plaintiff
ANSWER: Deny.
25.Customers who bought parts from Dr. Permagreen began calling Perma-Green
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ANSWER: Neither admit nor deny, but leave Plaintiff to its proofs.
ANSWER: Plaintiff’s picture attached to its Complaint in paragraph 19 shows
100% positive feedback for Ebay user Dr. Permagreen and Defendant requests
customers to buy parts that are not made to the high safety specifications of
Perma-Green.
ANSWER: Neither admit nor deny, but leave Plaintiff to its proofs.
28.Asaresultoftheactualconfusion,Perma-Green’sreputationhasbeentarnished
and Perma-Greenisunabletomaintainthehighsafetystandardsitholdsforits
products.
ANSWER: Neither admit nor deny, but leave Plaintiff to its proofs.
ANSWER: Deny.
buyers commented: “Terrible seller! Buyers beware! Item would not turn on.
Slowornoresponse;” “Ipayedforitandhewouldnevershipitbutgavememy
missing/broken;”and“DidnothavelugnutslikeitsaiditdidsoIhadtogobuy
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ANSWER: These comments were not associated with any related Perma-Green
product sales by Defendants, rather, these were related to other types of
equipment that are not in any way affiliated with Plaintiff or its products or
trademark.
31.These and other negative experiences of Dr. Permagreen’s customers have
ANSWER: These alleged negative experiences were not associated or affiliated
32.Defendantsalsomarketedlawn-careproductsonthedrpermagreen.comwebsite.
ANSWER: Defendants are in the business of selling new and refurbished
lawn-care products and equipment as well as servicing lawn-care products and
equipment and advertise their products and services legally on their website.
33.Perma-Green sent Cease and Desist letters to Defendants demanding that
ANSWER: Defendants received the Cease and Desist letters and respectfully
Rights
34.After Perma-Green sent the first Cease and Desist letter, Klott announced his
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ANSWER:DefendantMikeKlottwasnotmadeawareofPlaintiff’sclaimthatany
35.OnAugust4,2023,KlottsentPerma-Greenane-mailresponsestatinghewould
use “sources all over China” to copy parts that he could sell by January.
was only made after Plaintiff had agreed that Defendants could purchase
Plaintiff’s products from a nearby authorized dealer of Perma-Green products,
however,Plaintiffdeceitfullyrefusedtheshipmentofsaidproductstothenearby
ANSWER:Therearemorecommunicationsthanthatsingleemailandthatsingle
37.AfterhereceivedthefirstCeaseandDesistletter,Defendantbegandirectingthe
ANSWER:Defendantchangedthenameofhiswebsitetorespectthedemandsof
tocreateconfusionwithPerma-Green’scustomers.Forexampleatcheckout,the
ANSWER:Defendantmistakenlybelievedthatchangingthenameofhiswebsite
torespectthedemandsofPlaintiff’sCeaseandDesistletteralongwithchanging
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theheadingbannerofthewebsitewouldbeasitewidechangeanddidnotknow
thattherestofthewebsitetemplatesandindependentpagesandcontextneeded
tobemanuallychangedtoreflecthisintentionoffullycomplyingwiththataspect
of the Plaintiff’s Cease and Desist letter. The “Dr. Permagreen” brand or name
was not intentionally left on the website to cause any alleged confusion with
Perma-Green’s customers, rather, it was attributable to human error on
Defendant Mike Klott’s part and this error was corrected by Defendant Mike
39.The Returns Policy also identified Dr. Permagreen as the entity behind the
offerings:
ANSWER: The Returns Policy has also been changed shortly after Defendant
40.And when a potential customer has questions, they are encouraged to“Callthe
ANSWER:Thepop-uphasalsobeenchangedshortlyafterDefendantMikeKlott
41.Despite receiving the Cease and Desist letters, Klott continued to create
counterfeitcopiesofgenuinePerma-Greenpartsandoffersthemforsaleasifthe
ANSWER: Defendants did not sell any counterfeit items and did not intend to
42.Forexample,Defendantsofferedforsalea“PermagreenFrontWheel&Tire”for
$249.99 on the turfequipmentusa.com website. This is not a Permagreen part:
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ANSWER: Defendants no longer offer a product listed as “Permagreen Front
43.Further,theproductdescriptionforthe“PermagreenFrontWheel&Tire”admits
ANSWER: Defendants no longer offer a product listed as “Permagreen Front
andrendertheequipmentunstable.ThesubstandardtiresofferedbyDefendants
ANSWER: Neither admit nor deny, but leave Plaintiff to its proofs.
45.Defendants also falsely marketed a “Permagreen Triumph or Magnum Throttle
ANSWER: This part is an authentic Perma-Green product that is listed on
anotherfalselymarketedproductfromDefendantsbecauseitisnotapartsoldby
Perma-Green.
ANSWER: This part is an authentic Perma-Green product that is listed on
parts; for example, the “Permagreen Aftermarket 2:1 Wet Clutch” is not a
Perma-Green part.
ANSWER:ThesepartsarenolongerlistedforsalebyDefendantsas“Permagreen
Aftermarket” parts.
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48.These parts may not be manufactured to Perma-Green’s standards. Yet
consumers are falsely led to believe these are Perma-Green parts tarnishing
Perma-Green’s reputation.
ANSWER:ThesepartsarenolongerlistedforsalebyDefendantsas“Permagreen
49.Defendants’ continued defiance led Perma-Green to send a second cease and
desist letter.
ANSWER: Defendants received the Cease and Desist letters and respectfully
50.In response to the second cease and deist letter, Defendants modified their
website to misleadingly associate Perma-Green with Defendants by adding a
bannerthatstatesitisthe“#1SourceforRefurbishedPermagreenMagnumsand
ANSWER: The statement Defendant’s website makes is wrongfully alleged by
Plaintiff to have the effect of leading customers to believe that Defendants are
endorsedoraffiliatedwithPlaintiff,however,thestatementtakenonitsfaceonly
claimstobealeadingsourceforrefurbishedproductsofPlaintiff,i.e.,areseller,
which, in fact, is what Defendants have been operating as since their entity
formation.
51.Dr. Permagreen and the Defendants also began advertising on YouTube with a
Defendants. The advertisement leads customers to believe that Defendants are
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ANSWER: Defendants never claimed to be affiliated with Plaintiff company
52.The statements made by Defendants that the parts are “Permagreen” parts are
literally false.
ANSWER: Defendants deny this allegation because parts listed on Defendants’
website are authentic parts from Perma-Green that are simply resold to public
consumers.
53.TheliterallyfalsestatementsappearingontheDefendants’websiteareplacedto
maximize their impact, confuse consumers, and affect a consumer’s purchase
decision.
The Literally False Listings and Infringement are Willful and Deliberate
55.Defendantsareawarethatitslistingsareliterallyfalse,deceptive,confusing,and
unlawful.
56.Defendants have been served with multiple Cease and Desist letters, yet
ANSWER: Defendants received the Cease and Desist letters and respectfully
57.For example,Klottcontinuedtosella“PermagreenJackShaftBearingAssembly
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Assembly for Magnum” on Defendants’ website, rather, Defendants procured a
58.The part falsely identified above as a Permagreen part differs from a true
Perma-Green part:
ANSWER: The part listed by Defendants use a different pulley mechanismand
are made with cast-iron components as opposed to Plaintiff’s inferior plastic
have to replace or repair the part more often. Defendants’ actions of offering
consumers a more superior product to fit Plaintiff’s equipment will ultimately
helpPlaintiff’sequipmentreputationandgoodwillbecauseofincreasedlongevity
59.As shown, however, the Defendants’ counterfeit part appears to use a cast iron
pillowblock,whereasagenuinePerma-Greenpartwoulduseaplasticcomposite
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pillow block. Further, the large pulley shown on the jackshaft is not a
Perma-Green part.
ANSWER:Defendants’answerinParagraph58explainsthesuperioritybetween
60.DefendantsknowthesepartsarenotPerma-Greenpartsandyetmarketthemas
PermaGreen parts.
ANSWER: Defendants did not market these products as genuine or original
Perma-Green parts and did not mislead, confuse, or deceive its customers.
61.DespiteknowingthatthepartsarenotPerma-Greenparts,anddespitereceiptof
ANSWER: Defendants received the Cease and Desist letters and respectfully
Dr. Permagreen and FTW Investments to infringe Perma-Green’s rights and,
despite personally knowing that certain parts are not Perma-Green parts, has
personally caused the parts to be listed as if they were “Permagreen” parts.
ANSWER: Defendants received the Cease and Desist letters and respectfully
followedthedemandsmadeasreasonablyandpragmaticallyaspossibleanddid
COUNT I
rademark Infringement
T
gainst All Defendants under 15 USC § 1114
A
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63.Perma-Green repeats and realleges the allegations contained in Paragraphs 1
ANSWER: Neither admit nor deny, but leave Plaintiff to its proofs.
ANSWER: Neither admit nor deny, but leave Plaintiff to its proofs.
65.WithouttheconsentofPerma-Green,Defendantshaveusedandcontinuetouse
theMarkincommerceinconnectionwiththesale,offeringforsale,distribution
or advertising of goods or services and the unauthorized use is likely to cause
confusion, or to cause mistake, or is likely to deceive in violation of 15 U.S.C.
§1114(1)(a).
ANSWER:DenybecausePlaintiffcannotclaimthatpartsmanufacturedbyother
companies are only exclusively for use with Plaintiff’s equipment for sale.
ANSWER: Defendants use “Turf Equipment USA” as their business name or
DBA.
67.Defendants have offered products using the Mark as a trade name that are not
Perma-Green parts.
ANSWER: Neither admit nor deny, but leave Plaintiff to its proofs.
ANSWER: Neither admit nor deny, but leave Plaintiff to its proofs.
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70.BothDefendantsandPerma-Greenusethesimilarmarksforthesaleoflawncare
ANSWER:DefendantscanofferproductsforsaleandresaleundertheFirstSale
Doctrine per 15 USC § 1114(1)(a). This is neither trademark infringement nor
unfair competition.
ANSWER: Defendants have not contributed to any alleged actual confusion by
consumers.
72.Defendants have created parts that are not Perma-Green parts and yet
purposefully palm off such parts as if they are genuine Perma-Green parts.
ANSWER: Defendants’ actions do not constitute use of a counterfeit mark in
74.Defendantshaveintentionally,willfully,andknowinglyusedthecounterfeitmark
inamalicious,fraudulentmannerinconnectionwiththesale,offeringforsale,or
75.Defendants’conductiscausingirreparableharmandinjurytoPerma-Greenand
its goodwillandreputation,andwillcontinuetobothdamagePerma-Greenand
confusethepublicunlessenjoinedbythisCourt. Perma-Greenhasnoadequate
remedy at law.
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ANSWER: Defendants deny this allegation and no harm has been done to
76.Perma-Green is entitled to injunctive relief, an award of actual or statutory
damages, and treble damages under Sections 34 and 35 of the Lanham Act, 15
COUNT II
False Designation of Origin
Against All Defendants Under 15 USC § 1125(a)
ANSWER: Neither admit nor deny, but leave Plaintiff to its proofs.
endorsement of their goods or services through the wrongful use of
79.Defendants’actsarelikelytodeceiveorconfuseconsumers,andhavedeceivedor
confusedconsumers,astotheorigin,association,orendorsementofDefendants’
goodsandservices,andarelikelytocauseandhavecausedconsumerstobelieve,
contrary to fact, that Defendants’ goods and services are sold or offered,
authorized, endorsed, or sponsored by PermaGreen, or that Defendants are in
ANSWER: Defendants do not and did not in the past claim any direct
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80.Defendants’actsarelikelytodeceiveorconfuseconsumers,andhavedeceivedor
confusedconsumers,astotheorigin,association,orendorsementofDefendants’
goodsandservices,andarelikelytocauseandhavecausedconsumerstobelieve,
contrary to fact, that Defendants’ goods and services are sold or offered,
authorized, endorsed, or sponsored by PermaGreen, or that Defendants are in
81.Defendants’actsarelikelytodeceiveorconfuseconsumers,andhavedeceivedor
confusedconsumers,astotheorigin,association,orendorsementofDefendants’
goodsandservices,andarelikelytocauseandhavecausedconsumerstobelieve,
contrary to fact, that Defendants’ goods and services are sold or offered,
authorized, endorsed, or sponsored by PermaGreen, or that Defendants are in
ANSWER: No harm has been done to Perma-Green’s reputation and goodwill
and Defendants have not contributed to any alleged actual confusion by
consumers.
82. Perma-Green is entitled to injunctive relief, an award of actual or statutory
damages, and treble damages under Sections 34 and 35 of the Lanham Act, 15
COUNT III
alse Advertising
F
gainst All Defendants Under 15 USC § 1125(a)
A
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83.Defendants have made false statements of fact in their advertising about
Perma-Green’s products.
ANSWER: Neither admit nor deny, but leave Plaintiff to its proofs.
84.Defendants have made false statements of fact in their advertising about
Perma-Green’s products.
85.Defendants have made false statements of fact in their advertising about
Perma-Green’s products.
86.Defendants’deceptionismaterialandislikelytoaffectthepurchasingdecisionof
87.Perma-Green has been injured as a result of the false statement by the direct
diversion of sales and by the loss of goodwill associated with its products.
88.Perma-Green has been injured as a result of the false statement by the direct
diversion of sales and by the loss of goodwill associated with its products.
COUNT IV
Deceptive Consumer Sales
Against All Defendants Under Ind. Code § 24-5-0.5-4
89.Perma-Green repeats and realleges the allegations contained in Paragraphs 1
ANSWER: Neither admit nor deny, but leave Plaintiff to its proofs.
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90.Defendantsmadedeceptiverepresentationsastothesubjectmatterofconsumer
transactions, including misrepresenting the source or origin of certain goods
91.Defendantsmadedeceptiverepresentationsastothesubjectmatterofconsumer
reputation.
ANSWER: No harm has been done to Perma-Green’s reputation and goodwill
and Defendants have not contributed to any alleged actual confusion by
consumers.
COUNT V
nfair Competition
U
Against All Defendants
94.Perma-Green hereby restates and realleges Paragraphs 1 through 93 of this
ANSWER: Neither admit nor deny, but leave Plaintiff to its proofs.
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endorsement of their goods or services through the wrongful use of
Perma-Green’s name.
96.Defendants’actsarelikelytodeceiveorconfuseconsumers,andhavedeceivedor
confusedconsumers,astotheorigin,association,orendorsementofDefendants’
goodsandservices,andarelikelytocauseandhavecausedconsumerstobelieve,
contrary to fact, that Defendants’ goods and services are sold or offered,
authorized, endorsed, or sponsored by PermaGreen, or that Defendants are in
representations in a malicious, fraudulent manner in connection with the sale,
remedy at law.
ANSWER: No harm has been done to Perma-Green’s reputation and goodwill
and Defendants have not contributed to any alleged actual confusion by
consumers.
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RELIEF REQUESTED
awardattorneyfeestoDefendantstothefullestextentoflawandawardanysuchother
Respectfully submitted,
randon Kizy
B
Attorney for Defendants
(Certificate of Service)
I , Brandon Kizy, attorney for the Defendant, certify that on December 8, 2023, I
caused a copy of this pleading to be served upon all parties via e-filing.
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