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Frank A. Angileri (MI BAR No. P45611) Thomas W. Cunningham (MI Bar No. P57899) Rebecca J. Cantor (MI Bar No. P76826) William E. Thomson, Jr. (SBN 47195) Roland J. Tong (SBN 216836) fangileri@brookskushman.com tcunningham@brookskushman.com rcantor@brookskushman.com wthomson@brookskushman.com rtong@brookskushman.com BROOKS KUSHMAN P.C. 1000 Town Center – Twenty Second Floor Southfield, MI 48075 Tel.: 248.358.4400 Fax: 248.358.3351 Attorneys for Plaintiff RawCar Group LLC dba CFI Medical Solutions UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

RAWCAR GROUP, LLC d/b/a CFI MEDICAL SOLUTIONS, a Michigan corporation, v. Plaintiff,

Case No. '13 CV1105 AJB BLM COMPLAINT FOR PATENT, TRADEMARK AND COPYRIGHT INFRINGEMENT

GRACE MEDICAL, INC., a Nevada corporation, PULSE MEDICAL, INC., a Georgia corporation, PREFERRED MEDICAL PRODUCTS, a Tennessee company, and A&B MEDICAL SPECIALTIES, LLC, an Ohio company, Defendants.

JURY TRIAL DEMANDED

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COMPLAINT FOR PATENT, TRADEMARK AND COPYRIGHT INFRINGEMENT AND JURY DEMAND Plaintiff RawCar Group, LLC d/b/a CFI Medical Solutions (“CFI Medical Solutions”) by and through their undersigned counsel, as and for its Complaint against defendants Grace Medical, Inc., Pulse Medical, Inc., Preferred Medical Products and A&B Medical Specialties, LLC (collectively, “Defendants”), respectfully alleges as follows: I. 1. 2. PARTIES

Plaintiff CFI Medical Solutions is a Michigan Corporation with its On information and belief, Defendant Grace Medical, Inc. (“Grace

principal place of business located at 14241 Fenton Rd, Fenton, MI 48430. Medical”) is a Nevada corporation with its principal place of business located at 2620 S. Maryland Ave, # 849, Las Vegas, Nevada, 89109 and a registered office address of 1135 Terminal Way Suite 209, Reno, Nevada. Grace Medical also has a field office at 1380 Oak Hill Dr Spc 54, Escondido, California, 92027. 3. On information and belief, Defendant Pulse Medical, Inc. (“Pulse Medical”) is a Georgia corporation with its principal place of business located at 1130 Ada Street Suite B, Blue Ridge, Georgia and a registered office address of 730 E Second St, Blue Ridge, Georgia. 4. On information and belief, Defendant Preferred Medical Products (“Preferred Medical”) is a Tennessee company with its principal place of business located at 191 Industrial Dr., Ducktown, Tennessee. 5. On information and belief, Defendant A&B Medical Specialties, LLC (“A&B Medical”) is a purported Ohio company with its principal place of business located at 760 Dancaster Dr., Maineville, Ohio.

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II. 6.

JURISDICTION AND VENUE

This is an action for patent infringement arising under the patent laws

of the United States, title 35 of the United States, for trademark infringement in violation of the Lanham Act of 1946, as amended, 15 U.S.C. § 1125(a), and for copyright infringement under the copyright laws of the United States, title 37 of the United States. 7. The Court has subject matter jurisdiction over the claims herein This Court also has supplemental pursuant to U.S.C. §§ 1331 and 1338(a). claims. 8. Venue and personal jurisdiction are appropriate in this Court under 28 U.S.C. §§ 1391(b) and 1400(b) because one or more defendants are located in this District and/or have committed acts of infringement in this District, and because a substantial part of the events and omissions giving rise to CFI Medical Solutions’ claims occurred in this District. III. A. FACTUAL BACKGROUND

jurisdiction under 28 U.S.C. § 1367(a) over CFI Medical Solutions’ state law

CFI Medical Solutions’ Patent Rights 9. CFI Medical Solutions develops, manufactures and sells, inter alia,

medical products including, but not limited to, sterile equipment covers, patient positioning aids, radiation protection and rehabilitative aids. 10. On October 25, 2011, U.S. Patent No. 8,042,549 (hereinafter “the ’549 patent”) entitled “Sterile Radiological Drape” was duly and lawfully issued to Serge Kaska (“Kaska”). A true and correct copy of the ’549 patent is attached as Exhibit 1.

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11. patent.

Emerging Medical Technology is the owner by assignment of the ’549

The assignment from Kaska to Emerging Medical Technology duly CFI Medical Solutions is, and at all times relevant has been, the

executed on September 29, 2009. 12. exclusive licensee of the ’549 patent for the making, using and/or selling products embodying the invention of the ’549 patent in connection with the medical industry. 13. On October 16, 2012, U.S. Patent No. 8,286,637 (hereinafter “the ’637 patent”) entitled “Sterile Radiological Imaging Unit Drape and Method of Providing a Sterile Surface Therewith” was duly and lawfully issued to Serge Kaska. The ’637 patent is a continuation-in-part of the ’549 patent. A true and correct copy of the ’637 patent is attached as Exhibit 2. 14. 15. Emerging Medical Technology is the owner by assignment of the ’637 CFI Medical Solutions is, and at all times relevant has been, the patent, duly executed on September 29, 2009. exclusive licensee of the ’637 patent for the making, using and/or selling products embodying the invention of the ’637 patent in connection with the medical industry. 16. 17. States. 18. B. CFI Medical Solutions marked the products embodying the invention claimed in the ’549 patent and the ’637 patent in accordance with 35 U.S.C. § 287. CFI Medical Solutions’ Trademark Rights 19. CFI Medical Solutions is the owner of all right, title and interest in CFI Medical Solutions manufactures, markets and sells C-ARMOR®, CFI Medical Solutions sells its C-ARMOR® product in the United a sterile equipment cover made under the ’549 patent and the ’637 patent.

and to, including all rights to recover for past infringement thereof, and goodwill
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associated with, U.S. Trademark Registration No. 3,994,704 for the trademark CARMOR®, used in connection with, inter alia, sterile surgical drapes for use at surgical sites, for covering patients on surgical tables, and for covering radiological imaging equipment sold in interstate commerce, by virtue of an assignment from trademark registrant Emerging Medical Technology, Inc. A true and correct copy of the Trademark Registration No. 3,994,704 is attached hereto as Exhibit 3. 20. CFI Medical Solutions continuously uses the C-ARMOR® trademark in connection with the promotion, advertising, and sale of medical equipment covers and other products and services and has since well before the acts of Defendants complained herein. 21. CFI Medical Solutions spends thousands of dollars and expends significant effort in advertising, promoting, and developing the C-ARMOR® trademark throughout the world. As a result of such advertising expenditures, CFI Medical Solutions established considerable goodwill in the C-ARMOR® trademark. The C-ARMOR® trademark is a valuable asset of substantial worth to CFI Medical Solutions. C. CFI Medical Solutions’ Copyright 22. On May 24, 2010, CFI Medical hired Digital Outpost to create a 2-3

minute video showing the benefits of the C-ARMOR® product (the “C-ARMOR® video”). CFI Medical has since published the C-ARMOR® video on its website. CFI Medical has also made certain screenshots of the C-ARMOR® video available on its website (the “C-ARMOR® photos”). Examples of two of the C-ARMOR® photos are shown below:

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23.

The C-ARMOR® video and the C-ARMOR® photos were works made

for hire. CFI Medical Solutions is the owner if both the C-ARMOR® video and the C-ARMOR® photos. 24. D. On April 29, 2013, CFI Medical filed copyright registration applications for the C-ARMOR® photos with the U.S. Copyright Office. Defendants’ Common Activities (Facts Common to All Defendants) 25. On information and belief, Defendants have made, used, sold, offered

for sale and/or imported in the United States, a product under the name C-SHIELD lateral C-Arm drape. 26. 27. 28. The C-SHIELD lateral C-Arm drape incorporates the patented The C-SHIELD lateral C-Arm drape incorporates the patented CFI Medical Solutions gave notice to Defendants that medical invention claimed in the ’549 patent. invention claimed in the ’637 patent. equipment covers made and sold under the ’549 patent and the ’637 patent are patented by marking such products in accordance with the provisions of 35 U.S.C. § 287 and/or by giving direct notice of infringement to Defendants. 29. On information and belief, CFI Medical Solutions gave verbal notice to Grace Medical of infringement of its licensed patents through the manufacturing, marketing and sale of Defendants’ C-SHIELD lateral C-Arm drape.

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30.

On information and belief, Defendants have used, and continue to use,

a mark confusingly similar to the C-ARMOR trademark to advertise and sell its products, namely the C-SHIELD lateral C-Arm drape, throughout the United States. 31. Defendants did not and do not have consent, license, approval or other authorization to use marks confusingly similar to the C-ARMOR® trademark in the manner set forth herein. 32. Defendants’ use of marks confusingly similar to the C-ARMOR® trademark as alleged in the foregoing paragraphs clearly shows the willful intent of Defendants to misrepresent the source of Defendants’ goods so as to cause confusion, mistake or to deceive as to Defendants’ connection or association with CFI Medical Solutions. E. Defendant Grace Medical, Inc.’s Activities 33. On information and belief, Grace Medical is a nationwide supplier of

medical products, supplies and devices used in the operating room, radiology, catheterization laboratories, endoscopy suites, doctor’s offices and surgery centers. 34. 35. On information and belief, Grace Medical is a nationwide supplier of On information and belief, Grace Medical attended the Association of the C-SHIELD lateral C-Arm drape. periOperative Registered Nurses (“AORN”) trade show held from March 2, 2013 to March 7, 2013 in San Diego, California. 36. 37. On information and belief, Grace Medical exhibited medical products, On information and belief, Grace Medical acted in concert with Pulse including C-SHIELD lateral C-Arm drape, at the AORN trade show. Medical to exhibit medical products at a booth at the AORN trade show rented by the David Scott Company.

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38. 39. trade show. 40.

On information and belief, Grace Medical displayed the C-SHIELD On information and belief, Grace Medical disseminated advertisement

lateral C-Arm drape at the AORN trade show. materials, including flyers, for the C-SHIELD lateral C-Arm drape at the AORN On March 5, 2013, Gilbert Sierra, President and Chief Executive

Officer of Grace Medical, sent communications regarding the alleged infringement of its C-SHIELD lateral C-Arm drape to John Lochner, a CFI Medical Solutions employee, and to Dr. Serge Kaska, President of Emerging Medical Technology and the inventor of the ’549 and ’637 patents. 41. On March 9, 2013, Gilbert Sierra sent e-mail correspondence regarding the alleged infringement of its C-SHIELD lateral C-Arm drape to Mike Czop, President of CFI Medical Solutions, and to Dr. Serge Kaska. F. Defendant Pulse Medical, Inc.’s Activities 42. 43. 44. On information and belief, Pulse Medical is a supplier of radiation On information and belief, Pulse Medical is a supplier of the COn information and belief, Defendant Pulse Medical attended the

protection and x-ray accessories specializing in leaded aprons and leaded eyewear. SHIELD lateral C-Arm drape. AORN trade show held from March 2, 2013 to March March 7, 2013 in San Diego, California. 45. 46. 47. On information and belief, Pulse Medical exhibited medical products, On information and belief, Pulse Medical acted in concert with Grace On information and belief, Pulse Medical and Grace Medical acted in including the C-SHIELD lateral C-Arm drape, at the AORN trade show. Medical to exhibit medical products at the AORN trade show. concert to display the C-SHIELD lateral C-Arm drape at the AORN trade show.
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48. trade show. G.

On information and belief, Pulse Medical disseminated advertisement

materials, including flyers, for the C-SHIELD lateral C-Arm drape at the AORN Defendant Preferred Medical Products’ Activities 49. 50. On information and belief, Preferred Medical is a manufacturer of On information and belief, Preferred Medical is a marketer,

sterile and non-sterile equipment covers to the medical industry. manufacturer and distributor of the C-SHIELD lateral C-Arm drape and does so nationwide, including in this District. 51. Upon information and belief, Preferred Medical manufactures the CSHIELD lateral C-Arm drape that is supplied by Grace Medical, Pulse Medical and A&B Medical. 52. On information and belief, on or before February 12, 2013, Defendant Preferred Medical began manufacturing, marketing and/or distributing the CSHIELD lateral C-Arm drape as evidenced by video on Youtube.com at http://www.youtube.com/watch?v=6tpV2qMWmlI. H. Defendant A&B Medical Specialties’ Activities 53. products. 54. SHIELD 55. On information and belief, A&B Medical is a supplier of the Clateral C-Arm drape as advertised on its website On information and belief, A&B Medical is a supplier of medical

http://www.abmedspecialties.com/NEW-PRODUCTS.html. On information and belief, A&B Medical has copied and published the C-ARMOR® photos for the purpose of advertising its C-SHIELD lateral CArm drape. Examples of the photos copied by A&B Medical are shown below:

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56. 57. 58.

The photos that A&B Medical has copied and published are Because the C-ARMOR® photos were published on CFI Medical’s On information and belief, A&B Medical has sales representatives

substantially similar to the C-ARMOR® photos. website, A&B Medical had access to the C-ARMOR® photos. located in Northern and Southern California.

IV.

COUNT I:

INFRINGEMENT OF U.S. PATENT NO. 8,042,549 (Alleged against All Defendants) 59. 60. 61. CFI Medical Solutions repeats and realleges the allegations of the Pursuant to 35 U.S.C. § 282, the ’549 patent is presumed valid. Defendants have infringed and continue to infringe, directly,

preceding paragraphs as of set forth herein.

contributorily or by inducement, one or more claims of the ’549 patent by making, using, selling, and/or offering to sell in this country, without a license, the CSHIELD lateral C-Arm drape, in violation of 35 U.S.C. § 271. 62. On information and belief, Defendants’ infringement of the ’549 patent has been and continues to be willful and carried out with full knowledge of the ’549 patent.

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63. patent. 64.

By reason of Defendants’ infringing activities, CFI Medical Solutions

has been and will continue to be damaged by Defendants’ infringement of the ’549 CFI Medical Solutions has been irreparably harmed by Defendants’ CFI Medical Solutions will continue to be

infringement of the ’549 patent.

irreparably harmed unless that infringement is enjoined.

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V.

COUNT II

INFRINGEMENT OF U.S. PATENT NO. 8,286,637 (Alleged against All Defendants) 65. 66. 67. CFI Medical Solutions repeats and realleges the allegations of the Pursuant to 35 U.S.C. § 282, the ’637 patent is presumed valid. Defendants have infringed and continue to infringe, directly,

preceding paragraphs as of set forth herein.

contributorily or by inducement, one or more claims of the ’637 patent by making, using, selling, and/or offering to sell in this country, without a license, the CSHIELD lateral C-Arm drape, in violation of 35 U.S.C. § 271. 68. On information and belief, Defendants’ infringement of the ’637 patent has been and continues to be willful and carried out with full knowledge of the ’637 patent. 69. patent. 70. CFI Medical Solutions has been irreparably harmed by Defendants’ CFI Medical Solutions will continue to be infringement of the ’637 patent. By reason of Defendants’ infringing activities, CFI Medical Solutions has been and will continue to be damaged by Defendants’ infringement of the ’637

irreparably harmed unless that infringement is enjoined.

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VI.

COUNT III

TRADEMARK INFRINGEMENT (Alleged against All Defendants) 71. 72. CFI Medical Solutions repeats and realleges the allegations of the Defendants’ wrongful use of the name C-SHIELD infringes CFI

preceding paragraphs as of set forth herein. Medical Solutions’ registered trademark C-ARMOR® and is likely to cause confusion, mistake and deception of the public as to the identity and origin of Defendants’ goods, causing irreparable harm to CFI Medical Solutions for which there is no adequate remedy at law. 73. By reason of the foregoing acts, Defendants are liable to CFI Medical Solutions for trademark infringement under 15 U.S.C. §§ 1114 and 1125(a).

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VII. COUNT IV COPYRIGHT INFRINGEMENT UNDER 17 U.S.C. § 501 (Alleged against Defendant A&B Medical) 74. 75. CFI Medical Solutions repeats and realleges the allegations of the CFI Medical has complied with all aspects of the law of copyright,

preceding paragraphs as of set forth herein. and secured the exclusive rights and privileges in the copyrights for the CARMOR® photos, including filing an application for registration with the Copyright Office. 76. Defendant A&B Medical has infringed upon the copyrights for the CARMOR® photos under 17 U.S.C. § 501 through copying and displaying the CARMOR® photos. 77. been willful. 78. The acts by A&B Medical will continue and will cause irreparable harm to CFI Medical unless restrained by the Court. There is no adequate remedy at law to compensate for the continued harm. 79. By reason of the foregoing acts, A&B Medical is liable to CFI Medical Solutions for copyright infringement under 17 U.S.C. § 501. On information and belief, the infringement by A&B Medical has

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VIII. COUNT V STATUTORY UNFAIR COMPETITION AND FALSE ADVERTISING UNDER CALIFORNIA STATE LAW (Alleged against All Defendants) 80. 81. CFI Medical Solutions repeats and realleges the allegations of the Defendants’ actions described above and specifically, without

preceding paragraphs as of set forth herein. limitation, Defendants’ use of the C-ARMOR® trademark, and confusingly similar variations thereof, in commerce to advertise, market, and sell the C-SHIELD lateral C-Arm drape constitute trademark infringement, false advertising, and unfair competition in violation of the laws of the State of California. 82. By these actions, Defendants engaged in false advertising and unfair competition in violation of the statutory law of the state of California, Cal. Bus. & Prof. Code §§ 17200 and 17500, et seq., and, as a result, CFI Medical Solutions has suffered and will continue to suffer damage to its business, reputation, and goodwill. 83. As a direct and proximate result of Defendants’ willful and intentional actions, CFI Medical Solutions has suffered damages and, unless Defendants are enjoined, CFI Medical Solutions will continue to suffer irreparable damage.

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IX.

COUNT VI

COMMON LAW INJURY TO BUSINESS REPUTATION (Alleged against All Defendants) 84. 85. CFI Medical Solutions repeats and realleges the allegations of the CFI Medical Solutions alleges that Defendants’ wrongful use of CFI

preceding paragraphs as of set forth herein. Medical Solutions’ trademark inures to and creates a likelihood of injury to CFI Medical Solutions’ business reputation because persons encountering CFI Medical Solutions and its products and services will believe that CFI Medical Solutions is affiliated with or related to or has the approval of Defendants, and any adverse reaction by the public to Defendants and the quality of its products and the nature of its business will injure the business reputation of CFI Medical Solutions and the goodwill that it enjoys in connection with its mark C-ARMOR®.

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PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests the following relief: a. b. c. A judgment that Defendants infringed the ’549 patent; A judgment that Defendants infringed the ’637 patent; A preliminary and permanent injunction, issued pursuant to 35 U.S.C. §

283, restraining and enjoining Defendants and their officers, agents, attorneys and employees, and those acting in privity or concert with them, from infringing the ’549 patent for the full term thereof; d. A preliminary and permanent injunction, issued pursuant to 35 U.S.C. §

283, restraining and enjoining Defendants and their officers, agents, attorneys and employees, and those acting in privity or concert with them, from infringing the ’637 patent for the full term thereof; e. A declaration that this is an exceptional case and an award of attorneys’

fees, disbursements, and costs of this action pursuant to 35 U.S.C. § 285; f. g. A judgment that Defendants infringed the C-ARMOR® mark; A preliminary and permanent injunction, issued pursuant to 15 U.S.C. §

1116(a), restraining and enjoining Defendants and their officer, agents, attorneys and employees, and those acting in privity or concert with them, from infringing the CARMOR® mark; h. An order requiring Defendants to deliver up for destruction or other

disposition by Plaintiff all advertisements, brochures, labels, packaging, signs, prints, decals, business cards, order forms, and all other materials in Defendants’ possession,
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custody, or control that are labeled with C-SHIELD, alone or in combination with other words pursuant to 15 U.S.C. § 1118; i. A judgment that Defendants be required to pay damages pursuant to 15

U.S.C. § 1117(a), including Defendants’ profits, damages that Plaintiff has sustained as a result of Defendants’ trademark infringement, and the costs of this action; j. A declaration that this is an exceptional case and an award of attorneys’

fees pursuant to 15 U.S.C. § 1117(a); k. l. A judgment that A&B Medical has infringed Plaintiff’s copyrights; An award of statutory damages against A&B Medical under 17 U.S.C. §

504(c), and costs, including attorneys’ fees, under 17 U.S.C. § 505; m. A declaration that this case is an exceptional case and an award of

attorneys’ fees pursuant to 17 U.S.C. § 1117(a); n. A preliminary and permanent injunction, issued pursuant to 17 U.S.C. §

502(a), restraining and enjoining A&B Medical and its officer, agents, attorneys and employees, and those acting in privity or concert with them, from infringing Plaintiff’s copyrights; o. A judgment that Defendants’ conduct constitutes unfair competition and

false advertising under Cal. Bus. & Prof. Code §§ 17200 and 17500, et seq.; p. A preliminary and permanent injunction, issued pursuant to Cal. Bus. &

Prof. Code § 17203, restraining and enjoining Defendants and their officer, agents,

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attorneys and employees, and those acting in privity or concert with them, from committing acts of unfair competition and false advertising; and q. Such other and further relief as the Court may deem just and proper.

Dated: May 8, 2013

Respectfully submitted, By: /s/ William E. Thomson, Jr. Frank A. Angileri (MI BAR No. P45611) Thomas W. Cunningham (MI Bar No. P57899) Rebecca J. Cantor (MI Bar No. P76826) William E. Thomson, Jr. SBN 47195) Roland J. Tong (SBN 216836) fangileri@brookskushman.com tcunningham@brookskushman.com rcantor@brookskushman.com wthomson@brookskushman.com rtong@brookskushman.com BROOKS KUSHMAN P.C. 1000 Town Center – Twenty Second Floor Southfield, MI 48075 Tel.: 248.358.4400 / Fax: 248.358.3351 Attorneys for Plaintiff

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