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Case No. 1
COMPLAINT

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Kit M. Stetina (SBN 82,977)
Stephen Z. Vegh (SBN 174,713)
STETINA BRUNDA GARRED & BRUCKER
75 Enterprise, Suite 250
Aliso Viejo, CA 92656
Email: litigate@stetinalaw.com
Tel: (949) 855-1246
Fax: (949) 855-6371

Attorneys for Plaintiff
LITHOCRETE, INC.



IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA


LITHOCRETE, INC., a California
corporation

Plaintiff

vs.

SINGLE EAGLE, INC., a California
corporation doing business as CONCRETE
CONTRACTORS INTERSTATE, and
DOES 1 through 5, inclusive

Defendants

Case No.

COMPLAINT FOR DAMAGES
AND EQUITABLE RELIEF
RESULTING FROM:

1. False Patent Marking
2. False Advertising Under the
Lanham Act
3. Trade Libel;
4. Intentional Interference With
Plaintiff's Prospective Economic
Advantage;
5. Injunctive Relief

DEMAND FOR JURY TRIAL



Plaintiff, Lithocrete, Inc., for its Complaint against Single Eagle, Inc. dba.
Concrete Contractors Interstate state and allege as follows:
PARTIES
1. Plaintiff, Lithocrete, Inc. (“Lithocrete” or “Plaintiff”) is a corporation

'14CV0685 DHB MMA
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Case No. 2
COMPLAINT

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organized and existing under the laws of the State of California, and having a
principal place of business at 829 West 17
th
Street, Suite 5, Costa Mesa, California
92627.
2. Upon information and believe, Defendant Single Eagle, Inc. is a
corporation organized and existing under the laws of the state of California and is
doing business as Concrete Contractors Interstate (“CCI”), having a principal place of
business at 12599 Stotler Court, Poway, California 92064.
3. The true names and capacities of the Defendants named herein as DOES
1-5, whether individual, corporate, associate, or otherwise, are unknown to
Lithocrete, who therefore sues said Defendants by said fictitious names. Lithocrete is
informed and believes, and thereon alleges, that each of the Defendants designated
herein as DOE is legally responsible for the events and happenings hereinafter
alleged and legally caused injury and damages proximately thereby to Lithocrete as
herein alleged. Lithocrete will seek leave to amend the Complaint when the true
names and capacities of said DOE Defendants have been ascertained. CCI and
DOES 1-5 are herein collectively referred to as “Defendants”).
4. Lithocrete is informed and believes, and on that basis alleges, that each
of the Defendants participated in and is in some manner responsible for the acts
described in this Complaint and any damages resulting therefrom.
5. Lithocrete is informed and believes, and on that basis alleges, that each
of the Defendants has acted in concert and participation with each other concerning
each of the claims in this Complaint.
6. Lithocrete is informed and believes, and on that basis alleges, that each
of the Defendants were empowered to act as the agent, servant and/or employees of
each of the other Defendants, and that all the acts alleged to have been done by each
of them were authorized, approved and/or ratified by each of the other Defendants.
JURISDICTION AND VENUE
7. This Court has subject matter jurisdiction of this action under 28 U.S.C.
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Case No. 3
COMPLAINT

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§§1331, 1338(a) as this action involves claims arising under the U.S. Patent Act of
1952, as amended, specifically 35 U.S.C. §292 for false patent marking. This action
also involves claims arising under the Lanham Act, specifically 15 U.S.C. 1125(a) for
false advertising.
8. CCI is subject to personal jurisdiction in this district because it offers its
decorative concrete installations in California and in this district.
9. Venue is proper in this judicial district pursuant to 28 U.S.C. §1391(b)
and (c) because CCI is subject to personal jurisdiction in this district and resides in
this district, and because a substantial part of the events or omissions giving rise to
the claim(s) occurred in this district, namely the marketing and offering of falsely
marked and falsely advertised decorative concrete installations in this district.
BACKGROUND OF THE CONTROVERSY
10. The Patent Act of 1952, 35 U.S.C. §292(a), prohibits falsely marking
upon, affixing to, or using in advertising in connection with any unpatented article,
the word “patent” or any word or number importing that the same is patented, when
no patent has issued for the purpose of deceiving the public.
11. Under 35 U.S.C. §292(b), a person who has suffered a competitive
injury as a result of a violation of this section may file a civil action in a district court
of the United States to recover damages.
12. In the instant case, CCI makes and sells multiple seeded aggregate
products that indicate on its website, www.seicci.com the following: “To show our
commitment to architects and general contractor’s budgets, we developed and
patented ECS-AG, our own equal to Lithocrete ®”. In fact, no such patent exists.
13. In the absence of a patent having been issued for Defendant’s ECS-AG
product, Defendant has no legal right to claim the benefits of novelty and exclusivity
attendant to the award of a patent by the United States Patent Office.
14. Lithocrete has been and is currently in the business of concrete
construction, as well as developing innovative installations and methods associated
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Case No. 4
COMPLAINT

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therewith.
15. Lithocrete is the owner of United States Utility Patent Nos. 6,016,635
(“Surface Seeded Aggregate and Method of Forming the Same”) and 6,033,146
(“Glass Chip Lithocrete and Method of Use of Same”). Copies of such patents are
attached hereto as Exhibits 1 and 2, respectively. (Collectively, Plaintiff’s patents
shall hereinafter be referred to as “the Lithocrete Patents”.)
16. Lithocrete has expended considerable sums in exerting every effort to
maintain the highest standard of quality of the decorative concrete installations and
methods practiced and offered under the Lithocrete Patents, and has created valuable
goodwill among the purchasing public under the Lithocrete Patents and the Lithocrete
mark.
17. Defendant’s false representations regarding its unpatented ECS-AG
decorative concrete being an equivalent substitute to Plaintiff’s patent Lithocrete has
resulted in bids by Plaintiff or Plaintiff’s licensees for construction projects whose
specifications called for the installation of Lithocrete decorative concrete being
rejected in favor of Defendant’s proposed installation of its ECS-AG product.
18. Plaintiff has also suffered damage to its reputation for quality decorative
concrete installations, as Defendant’s unpatented ECS-AG product is not an
equivalent substitute to Plaintiff’s patented Lithocrete concrete installations. Indeed,
Defendant’s falsely marked ECS-AG is believed to be of inferior quality to Plaintiff’s
patented Lithocrete decorative concrete installations. Once the inferior quality of
Defendant’s products becomes evident to the public, the claim of equivalence of
Defendant’s inferior unpatented product to that of Plaintiff’s patented Lithocrete
installations will deceive and mislead the public into believing that Plaintiff’s own
decorative concrete is also of inferior quality.
FIRST CLAIM FOR RELIEF
(False Patent Marking Pursuant to 35 U.S.C. §292)
19. Paragraphs 1-18, above, are realleged and incorporated by reference as if
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Case No. 5
COMPLAINT

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set forth in full.
20. CCI manufactures, advertises and sells surface seeded aggregate
concrete installations.
21. CCI marks that its ECS-AG products is “patented” when in fact, no such
patent exists.
22. CCI knows that its product identified as ECS-AG is not patented, but
utilizes the “patented” designation in a wrongful manner pursuant to 35 U.S.C. §292.
23. By claiming a patent for their ECS-AG where none exists, CCI sought to
deceive the public in order to gain a commercial advantage over Lithocrete by
inflating consumer demand for a product that is represented to the public as being
unique, not legally available from competitors and in particular Lithocrete, and an
equivalent if not superior substitute for Plaintiff’s own patented Lithocrete
installations.
24. Plaintiff has lost clients and construction bids to CCI and consequently
lost revenue and profits as a result of Defendant’s false marking.
SECOND CLAIM FOR RELIEF
(False Advertising Pursuant to 15 U.S.C. 1125(a))
25. Paragraphs 1-24, above, are realleged and incorporated by reference as if
set forth in full.
26. 15 U.S.C. § 1125(a)(1) prohibits false advertising in the form of false
statements by “any person who, on or in connection with any goods or services. .
.uses in commerce any. . .false or misleading description of facts, or false or
misleading representation of fact, which—in commercial advertising or promotion—
misrepresents the nature, characteristics [or] qualities. . .of his or her or another
person’s goods, services, or commercial activities. . .”
27. CCI’s advertising of its ECS-AG as a patented product that is an
equivalent substitute to Lithocrete intends to convince potential contractors to accept
Defendant’s bids for the installation of decorative concrete rather than Plaintiff’s
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Case No. 6
COMPLAINT

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patented Lithocrete concrete installations.
28. Lithocrete and ECS-AG are competing decorative concrete installations.
29. The false and disparaging representations made by Defendant
concerning the quality, efficacy, and/or functionality, of the ECS-AG concrete
product as compared to Plaintiff’s Lithocrete was disseminated through its on-line
advertising. Defendant’s false advertising reached consumers and contractors of
decorative concrete installations, including those in this jurisdiction, interested in
installing decorative concrete for construction projects.
30. Lithocrete is informed and believes and thereon alleges that the
representations and characterizations made by Defendant concerning the equivalence
of ECS-AG to patented Lithocrete concrete installations as well as the falsehood of
Defendant’s patent claim was intentionally false and disparaging of Plaintiff’s
Lithocrete, Plaintiff’s other decorative concrete installations, and Plaintiff’s business
generally.
31. Plaintiff is informed and believes and thereon alleges that Defendant’s
false advertising has induced consumers and contractors to have installed Defendant’s
ECS-AG product rather than Plaintiff’s Lithocrete and other of Plaintiff’s decorative
concrete installations, thereby causing pecuniary loss and special damages to
Plaintiff.
32. Based on CCI having previously been advised of Plaintiff’s Lithocrete
trademark and the Lithocrete Patents, along with the uniqueness and value Plaintiff
assigned to its patented decorative concrete installations, Plaintiff’s requirement that
contractors license from it the right to use the Lithocrete trademark and/or practice
the Lithocrete Patents, the quality, efficacy, and/or functionality of the ECS-AG
concrete product as compared to Plaintiff’s Lithocrete, and the absence of any
enforceable patent issued for the ECS-AG product and related methods, Defendant
knew that the representations of fact made in their advertising of the ECS-AG
product were false, and that customers and contractors would be induced to purchase
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Case No. 7
COMPLAINT

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the ECS-AG product rather than Plaintiff’s Lithocrete, thereby causing pecuniary loss
and special damages to Plaintiff. Defendants’ false and misleading representations
concerning the absence of an issued patent for the ECS-AG product and the quality,
efficacy, and/or functionality of ECS-AG as compared to the Lithocrete decorative
concrete installations were made with malice and intentional disregard of the quality,
reputation, and good will associated with Plaintiff’s patented Lithocrete, Plaintiff’s
other decorative concrete installations, and Plaintiff’s business generally.
33. As a result of the expenditure of significant time, money and effort, the
public recognizes Plaintiff’s decorative concrete installations, and in particular
Lithocrete, as meeting the highest standards of quality, efficacy, and functionality of
a decorative concrete installation. Defendants’ false and misleading representations
about ECS-AG and Lithocrete has thereby damaged the positive reputation and good
will associated with Lithocrete decorative concrete as well as the good will of
Plaintiff’s decorative concrete business, including but not limited to, the value of its
Lithocrete trademarks, Registration Nos. 2,358,183 and 1,879,239, as well as the
Lithocrete Patents. The Lanham Act specifically prohibits the type of false
commercial advertising practiced by Defendant and is intended to protect Plaintiff
from such unfair competition.
THIRD CLAIM FOR RELIEF
(Trade Libel)
34. Paragraphs 1-33, above, are realleged and incorporated by reference as if
set forth in full.
35. Plaintiff has developed a positive reputation and substantial goodwill
with its customers for its decorative concrete installations, and in particular Lithocrete
throughout California, the United States, and the world. As a result of the
expenditure of significant time, money and effort, the public recognizes Plaintiff’s
patented decorative concrete installations, including but not limited to Lithocrete, as
meeting the highest standards of quality, efficacy, and/or functionality for their
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Case No. 8
COMPLAINT

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decorative concrete.
36. Lithocrete is informed and believes and thereon alleges that Defendant
began to publish on-line commercial advertising of their ECS-AG decorative concrete
that claimed patent rights in their “own equal to Lithocrete”. Defendant’s
representations and characterization of the ECS-AG in their on-line publication is
intentionally false and disparaging of the quality, efficacy, and/or functionality of
Plaintiff’s patented decorative concrete installations, and in particular Lithocrete.
37. Plaintiff is informed and believes and thereon alleges that Defendant’s
on-line publication at its website www.seicci.com induced current and potential
customers and contractors of projects on which Plaintiff or Plaintiff’s licensees bid
the installation of its Lithocrete decorative concrete to not purchase or reject
Plaintiff’s Lithocrete and other decorative concrete installations, thereby causing
pecuniary loss in the form of lost revenue and lost profits to Plaintiff.
38. Plaintiff is informed and believes and thereon alleges that Defendant
made these false and disparaging statements about Plaintiff’s Lithocrete intentionally,
knowing that such statements were false based on Defendant’s prior awareness of
Plaintiff’s Lithocrete trademark and the Lithocrete Patents, the quality, efficacy,
and/or functionality of Lithocrete, the uniqueness and value Plaintiff assigned to its
patented decorative concrete installations, Plaintiff’s requirement that contractors
license from it the right to use the Lithocrete trademark and/or practice the Lithocrete
Patents, and the absence of any patent issued to Defendant.
39. Plaintiff is further informed and believes and thereon alleges that
Defendant has sold and will continue to sell their ECS-AG decorative concrete
installations to current and potential customers and contractors to whom Plaintiff has
sold or would have sold and installed its Lithocrete decorative concrete, but for
Defendant’s false and misleading statements.
40. Defendant’s actions constitute trade libel under California law, which
has caused injury to Plaintiff’s business in general and the reputation of Plaintiff’s
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Case No. 9
COMPLAINT

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patented Lithocrete decorative concrete installations in particular.
41. As a proximate result of Defendant’s trade libel, Plaintiff has sustained
general damages to its reputation in an amount presently unascertained but
reasonably believed to exceed the jurisdictional requirements of this judicial district,
said amounts to be set forth at trial according to proof.
42. As a further proximate result of Defendant’s trade libel, Plaintiff has
sustained incidental and special damages, including lost business opportunities to sell
and install its patented decorative concrete installations, including but not limited to
Lithocrete, to current and potential customers in an amount presently unascertained
but reasonably believed to exceed the jurisdictional requirements of this judicial
district, said amounts to be set forth at trial according to proof.
43. Defendant’s false and disparaging characterizations and representations
concerning the equivalence of ECS-AG to Lithocrete was done with malice and
oppression, with Defendant’s knowledge and for the purpose and with the intended
effect of causing Plaintiff damage. Plaintiff is therefore entitled to and hereby
requests exemplary and punitive damages, according to proof.
44. Defendant threatens, and unless restrained will, continue to engage in the
wrongful and illegal acts described herein. As a result, Plaintiff will suffer a great
and irreparable injury, for which damages would not afford adequate relief, in that
said damages would not adequately compensate for the injury to the reputation,
goodwill, and customer base of Plaintiff’s decorative concrete business, and in
particular Plaintiff’s patented Lithocrete. Defendants’ conduct, if allowed to
continue, would inevitably result in damage to Plaintiff’s business. Accordingly,
Plaintiff also seeks permanent injunctive relief against Defendant for its misconduct,
including but not limited to precluding Defendant from claiming it has a patent on the
ECS-AG product, that ECS-AG is an equivalent substitute to Lithocrete and from
making any further disparaging reference to Plaintiff’s patented Lithocrete decorative
concrete.
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Case No. 10
COMPLAINT

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FOURTH CLAIM FOR RELIEF
(Intentional Interference with Prospective Economic Advantage )
45. Redline repeats and realleges paragraphs 1 through 44, inclusive, and
incorporates same herein by reference.
46. As a result of Defendant’s Roger actual knowledge of the falsity and the
misleading nature of Defendants’ representations and characterizations concerning
the patent issued for the ECS-AG product and it being a substitute equivalent to
Lithocrete, in view of Defendant’s prior awareness of Plaintiff’s Lithocrete trademark
and the Lithocrete Patents, and the uniqueness, quality, efficacy, and/or functionality
of the patented Lithocrete decorative concrete, Defendant had a duty and
responsibility to refrain from falsely disparaging Plaintiff’s concrete installations.
47. Plaintiff is informed and believes and thereon alleges that Defendant
engaged in the conduct and other unlawful acts complained of herein with the
knowledge, malicious intent, and sole purpose of interfering with Plaintiff’s
advantageous business relations and rights and interests thereunder with existing and
potential customers and contractors wishing to install Plaintiff’s patented Lithocrete
decorative concrete.
48. Plaintiff is informed and believes and thereon alleges that as a result of
Defendant’s interference with Plaintiff’s advantageous economic relations, Defendant
has precluded Plaintiff or Plaintiff’s authorized licensees from consummating
additional sales of its decorative concrete installations, including but not limited to
Lithocrete, to existing customers and contractors for whom it has previously installed
such decorative concrete as well as potential customers aware of Plaintiff’s
decorative concrete installations who would have likely purchased such installations
including Lithocrete. Plaintiff has accordingly been deprived of receiving revenue
and generating profits from the installations of its decorative concrete to current and
potential customers.
49. As a proximate result of Defendant’s intentional interference, Plaintiff
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Case No. 11
COMPLAINT

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has sustained general damages to its reputation in an amount presently unascertained
but reasonably believed to exceed the jurisdictional requirements of this judicial
district, said amounts to be set forth at trial according to proof.
50. As a further proximate result of Defendant’s intentional interference,
Plaintiff has sustained incidental and special damages in the reduction of business
opportunities install its decorative concrete installations, including but not limited to
Lithocrete, for current and potential customers and contractors in a total amount
presently unascertained but reasonably believed to exceed the jurisdictional
requirements of this judicial district, said amounts to be set forth at trial according to
proof.
51. Defendant’s false and disparaging characterizations and representations
concerning Plaintiff’s Lithocrete was done with malice and oppression, with
Defendant’s knowledge of such falsity and for the purpose and with the intended
effect of interfering with Plaintiff’s business relationships. Defendant was aware of
Plaintiff’s business relationships and that of its licensees with current and potential
customers and contractors having previously bid on the installation of decorative
concrete installations alongside and in competition with Plaintiff. Plaintiff is
therefore entitled to and hereby requests exemplary and punitive damages, according
to proof.
52. Defendant threatens, and unless restrained will, continue to engage in the
wrongful and illegal acts described herein. As a result, Plaintiff will suffer a great
and irreparable injury, for which damages would not afford adequate relief, in that
said damages would not adequately compensate for the injury to the reputation,
goodwill, and customer base of Plaintiff’s business, and in particular the patented
Lithocrete decorative concrete. Defendant’s conduct, if allowed to continue, would
inevitably result in damage to Plaintiff’s business. Accordingly, Plaintiff in addition
to damages also seeks permanent injunctive relief against Defendant for their
misconduct, including but not limited to precluding Defendant from claiming it has a
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Case No. 12
COMPLAINT

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patent on the ECS-AG product, that ECS-AG is an equivalent substitute to Lithocrete
and from making any further disparaging reference to Plaintiff’s patented Lithocrete
decorative concrete.
FIFTH CLAIM FOR RELIEF
(Injunction)
53. Plaintiff repeats and realleges paragraphs 1 through 52, inclusive, and
incorporates same herein by reference.
54. Defendant’s wrongful conduct as described herein above, unless and
until enjoined and restrained by an order of this Court, will cause great and
irreparable injury to Plaintiff in that the monetary damages will not provide an
adequate remedy at law and such injuries are likely to continue unless such actions
are enjoined immediately. Otherwise, Plaintiff will suffer irreparable harm and injury
as it relates to the reputation, customer recognition, and goodwill associated with its
decorative concrete business.
55. Accordingly, Plaintiff prays for a permanent injunction against
Defendant with respect to its false statements about the issuance of a patent for its
ECS-AG product and the disparagement of Plaintiff’s patented Lithocrete, including
but not limited to enjoining Defendant from claiming it has a patent on the ECS-AG
product, that ECS-AG is an equivalent substitute to Lithocrete, and from making any
further disparaging reference to Plaintiff’s patented Lithocrete decorative concrete.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff demands that judgment be entered against the
Defendant as follows:
ON THE FIRST CLAIM FOR RELIEF
1. That the Court declare, adjudge, and decree that CCI violated 35 U.S.C.
§292 by falsely marking its products as patented in advertising its products;
2. That, pursuant to 35 U.S.C. §292, Lithocrete recover its reasonable
attorneys’ fees;
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Case No. 13
COMPLAINT

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3. General and special damages to be proven at trial, to the extent allowed by
law;
4. For Injunctive relief to the extent allowed by law;
5. For such other and further relief as the Court may deem just and proper.
ON THE SECOND CLAIM FOR RELIEF
1. General and special damages to be proven at trial, to the extent allowed by
law;
2. For Injunctive relief to the extent allowed by law;
3. For attorney’s fees and costs to the extent allowed by law;
4. For exemplary damages or punitive damages to the extent allowed by law;
5. For such other and further relief as the Court may deem just and proper.
ON THE THIRD CLAIM FOR RELIEF
1. General and special damages to be proven at trial, to the extent allowed by
law;
2. For Injunctive relief to the extent allowed by law;
3. For attorney’s fees and costs to the extent allowed by law;
4. For exemplary damages or punitive damages to the extent allowed by law;
5. For such other and further relief as the Court may deem just and proper.
ON THE FOURTH CLAIM FOR RELIEF
1. General and special damages to be proven at trial, to the extent allowed by
law;
2. For Injunctive relief to the extent allowed by law;
3. For attorney’s fees and costs to the extent allowed by law;
4. For exemplary damages or punitive damages to the extent allowed by law;
5. For such other and further relief as the Court may deem just and proper.
ON THE FIFTH CLAIM FOR RELIEF
1. For Injunctive relief to the extend allowed by law;
2. For attorney’s fees and costs to the extent allowed by law;
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Case No. 14
COMPLAINT

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3. For such other and further relief as the Court may deem just and proper.
ON ALL CAUSES OF ACTION
1. That the Defendant, its officers, agents, servants, employees, and all
persons in concert or participation with the Defendant be preliminarily and
permanently enjoined from:
A. falsely disparaging Plaintiff’s business, Lithocrete decorative concrete, or
any other of Plaintiff’s concrete installations;
B. falsely marking its decorative concrete products with a patent, including
but not limited to the ECS-AG;
B. selling or marketing decorative concrete products or related services that
tends to deceive, mislead, or misrepresent to the public the quality, efficacy,
functionality and/or equivalence of Defendant’s decorative concrete installations to
Plaintiff’s Lithocrete;
C. otherwise competing unfairly with Plaintiff’s decorative concrete
installation business;
2. That the Defendant be directed to file with this Court and serve on Plaintiff
within (30) days after service of the injunction, a report in writing, under oath, setting
forth the detailed manner and form in which Defendant has complied with the
injunction.
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Case No. 15
COMPLAINT

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3. That the Defendant be required to account for and pay over to Plaintiff all
gains, profits, and advantages realized from the sale of its ECS-AG product or related
services resulting from the false patent marking, false advertising, and disparaging
statements made against Plaintiff’s patented decorative concrete installations.

Dated: March 25, 2014 STETINA BRUNDA GARRED & BRUCKER



By: s/Kit M. Stetina
Kit M. Stetina
Stephen Z. Vegh
Attorneys for Plaintiff
LITHOCRETE, INC.


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Case No. 16
COMPLAINT

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DEMAND FOR JURY TRIAL
Plaintiff, Lithocrete, Inc., hereby demands a jury trial in this action.

Dated: March 25, 2014 STETINA BRUNDA GARRED & BRUCKER



By: s/Kit M. Stetina
Kit M. Stetina
Stephen Z. Vegh
Attorneys for Plaintiff
LITHOCRETE, INC.


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