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Case 2:09-cv-02067-RCJ-RJJ Document 1 Filed 10/27/2009 Page 1 of 15

1 Alan W. Westbrook
Nevada Bar No. 6167
2 PERRY, SPANN & WESTBROOK
3 1701 W. Charleston, Ste. 200
Las Vegas, Nevada 89102
4 Telephone: (702) 870-2400
Facsimile: (702) 870-8220
5 awestbrook@perryspann.com
6 Carina H. Schoenberger
7 Pro Hac Vice Pending
BRYAN CAVE LLP
8 211 N. Broadway, Ste. 3600
St. Louis, MO 63102
9 Telephone: (314) 259-2000
Facsimile: (314) 552-8000
10 carina.schoenberger@bryancave.com
11 ATTORNEYS FOR PLAINTIFF
12 UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
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14 PRICE PRODUCTS LLC, an Idaho company,
Plaintiff,
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vs. No. ___________
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17 JUVENILE
corporation,
SOLUTIONS, INC., a California COMPLAINT
JURY TRIAL DEMANDED
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Serve: Pamela Neckameyer
19 1355 N. Beverly Drive
Beverly Hills, CA 90210
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Defendant.
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1 COMES NOW Plaintiff Price Products LLC (“Price Products”), by and through its attorneys,

2 and for its Complaint against Juvenile Solutions, Inc. (“Juvenile Solutions” or “Defendant”) states as
3 follows:
4 Jurisdiction, Venue, and Nature of Action

5 1. This is an action for unfair competition and false designation of origin under the

6 Federal Trademark Act, 15 U.S.C. § 1051, et seq. (the “Lanham Act”); trade dress infringement
7 under the Lanham Act; and trademark infringement and unfair competition under Nevada common
8 law. This Court has jurisdiction over this action pursuant to 15 U.S.C. § 1121(a), and pursuant to 28
9 U.S.C. §§ 1331, 1332(a), and 1367. Defendant infringed and wrongfully used Price Products’
10 common law trademarks and trade dress, and/or confusingly similar variations thereof, in this
11 judicial district. Additionally, this Court has jurisdiction over this matter based upon 28 U.S.C.
12 § 1332(a) in that diversity of citizenship exists between Price Products and Defendant and the
13 amount in controversy, exclusive of interest and costs, exceeds $75,000.00.
14 2. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391 because a
15 substantial portion of the events giving rise to this action occurred in this judicial district. Defendant
16 wrongfully used and infringed, and continues to wrongfully use and infringe, Price Products’
17 valuable and well-known DRIPSTIK marks and related trade dress in this judicial district.
18 Parties

19 3. Plaintiff Price Products is a limited liability company organized and existing under

20 the laws of Idaho with a principle place of business at 4870 Buffalo Road, Chubbuck, Idaho 83202.
21 4. Upon information and belief, Defendant Juvenile Solutions is a corporation organized

22 and existing under the laws of California with a principle place of business at 7625 Hayvenhurst
23 Avenue, Suite 3, Van Nuys, California 91406.
24 Facts Common to All Counts

25 Price Products’ DRIPSTIK Marks and Trade Dress

26 5. Price Products markets, distributes, and sells products developed to provide parents of

27 young children with innovative products that serve a practical purpose.


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1 6. Since at least May 2006, Price Products has marketed and sold the DRIPSTIK, a

2 child-friendly product that holds ice cream cones, popsicles, and other frozen desserts. The

3 DRIPSTIK comprises a brightly-colored, plastic, double-ended dessert holder with one end shaped
4 to hold an ice cream cone, and the other shaped to hold frozen desserts on a stick. The DRIPSTIK is
5 available in six bright colors. The DRIPSTIK’s ornamental features include, but are not limited to,
6 its bright color, opacity, shallow, rounded, cup-shaped (as opposed to conical or squared-off) ends,
7 and arbitrary width. The DRIPSTIK’s distinctive elements together form its protectable trade dress
8 (the “DRIPSTIK Trade Dress”).
9 7. Below, and incorporated by reference into this paragraph, are true and correct
10 depictions of Price Products’ DRIPSTIK:
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1 8. The DRIPSTIK is Price Products’ most popular and best-selling product. Price

2 Products sells the DRIPSTIK directly from its website, www.dripstik.com, as well as at
3 approximately twenty trade shows around the country each year. In addition, Price Products has
4 relationships with numerous distributors that distribute the DRIPSTIK for sale at mass retailers and
5 independent stores throughout the United States and in ten countries around the world. The
6 DRIPSTIK is sold at such well-known national chains as Walmart, Bed Bath & Beyond, Toys “R”
7 Us, and Babies “R” Us.
8 9. Since at least May 2006, Price Products has continuously used the name DRIPSTIK,

9 with its non-traditional spelling of “stik,” in connection with the promotion and sale of the
10 DRIPSTIK.
11 10. Since at least November 2006, Price Products has continuously used the DRIPSTIK
12 logo, which includes a non-traditional spelling of “stik,” a stylized drawing of the DRIPSTIK
13 product holding a frozen dessert in place of the two letters “I” in the name DRIPSTIK, non-linear
14 lettering in primary colors, the use of different colors for each letter in the name DRIPSTIK, and a
15 rainbow-colored background of vertical stripes overlaid with a starburst pattern
16 11. Below, and incorporated by reference into this paragraph, is a true and correct
17 depiction of the DRIPSTIK logo:
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18 12. Price Products is the owner of all right, title, and interest in and to its DRIPSTIK

19 name and logo (collectively the “DRIPSTIK Marks”), and all goodwill appurtenant thereto.
20 13. For over three years, Price Products has expended, and continues to expend, a

21 substantial amount of resources, time, money, and effort promoting, marketing, advertising, and
22 building consumer recognition and goodwill in the DRIPSTIK Trade Dress and DRIPSTIK Marks.
23 14. Price Products’ DRIPSTIK has been featured on the Food Network’s Rachel Ray

24 Show, The Big Idea with Donny Deutsch on CNBC, NBC’s the Today Show, CBS’s Dallas Morning
25 Show, various other television shows, and in numerous magazines and newspapers.
26 15. The DRIPSTIK Trade Dress and DRIPSTIK Marks are valuable, widely known, and

27 well-recognized in the relevant market, and have developed a substantial amount of goodwill.
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1 16. As a result of Price Products’ extensive use, sale, promotion, and marketing of the

2 DRIPSTIK Trade Dress and DRIPSTIK Marks, the trade dress and marks have become identified
3 with high quality products originating from Price Products.
4 Price Products’ Former Distributor Petite Creations

5 17. In the spring of 2008, Price Products developed a relationship with a Canadian

6 corporation, Petite Creations, wherein Petite Creations served as a distributor of Price Products’
7 products, including the DRIPSTIK, in Canada.
8 18. During that time, Petite Creations requested images of the DRIPSTIK, the

9 DRIPSTIK’s packaging, and Price Products’ promotional materials containing the DRIPSTIK
10 Marks, all of which Price Products supplied.
11 19. In addition to the images it received, Petite Creations purchased, and Price Products
12 shipped, twenty-five DRIPSTIK floor displays, each of which contained twenty-four individual
13 DRIPSTIK products. Petite Creations represented that the DRIPSTIK displays would be used to
14 introduce the DRIPSTIK to pharmacies and independent stores in Canada.
15 Defendant’s Infringement of the DRIPSTIK Marks and DRIPSTIK Trade Dress
16 20. In June 2009, Price Products learned that Petite Creations had started manufacturing,
17 using, distributing, advertising, marketing, offering for sale, exporting, and/or selling a product
18 called the “FUNSTIK” through various distribution and retail channels.
19 21. The “FUNSTIK” comprises a brightly-colored, plastic, double-ended dessert holder
20 with one end shaped to hold an ice cream cone, and the other shaped to hold frozen desserts on a
21 stick. The “FUNSTIK” is virtually identical to the DRIPSTIK. Like the DRIPSTIK, the

22 “FUNSTIK” is available in six bright colors, is opaque, has shallow, rounded, cup-shaped (as
23 opposed to conical or squared-off) ends, and is the same arbitrary width as the DRIPSTIK.
24 22. Below, and incorporated by reference into this paragraph, are true and correct

25 depictions of the “FUNSTIK”:


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23. Petite Creations’ “FUNSTIK” promotional materials contain a logo which includes a
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non-traditional spelling of “stik,” a stylized drawing of the “FUNSTIK” product holding a frozen
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dessert in place of the letter “I” in the name “FUNSTIK,” non-linear lettering in primary colors, the
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use of different colors for each letter in the name “FUNSTIK,” and a rainbow-colored background of
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vertical stripes overlaid with a starburst pattern
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1 24. Below, and incorporated by reference into this paragraph, is, upon information and

2 belief, a true and correct image of the “FUNSTIK” logo taken from Petite Creations’ website
3 www.petitecreations.net:
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9 25. Since June 2009, customers have expressed their actual confusion to Price Products

10 regarding the origin of the “FUNSTIK” and inquired as to its relationship to Price Products and the
11 DRIPSTIK.
12 26. Between September 13-16, 2009 Price Products attended the ABC Kids Expo (“ABC

13 Expo”) at the Las Vegas Convention Center in Las Vegas, Nevada as an exhibitor to advertise,
14 market, promote, and sell Price Products’ products including the DRIPSTIK.
15 27. While at the ABC Expo, Price Products discovered that Defendant Juvenile Solutions

16 had an exhibitor’s booth which Defendant used to advertise, market, promote, and sell the
17 “FUNSTIK.”
18 28. Upon information and belief, Defendant was serving as Petite Creations’ American

19 distributor at the ABC Expo. Petite Creations’ founder Rock Diodati attended the ABC Expo and
20 advertised, marketed, promoted, and sold the “FUNSTIK” in Defendant’s booth.
21 29. Price Products asked Defendant to cease advertising, marketing, promoting, and

22 selling the “FUNSTIK.” Defendant refused.


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30. Upon information and belief, Defendant distributes, advertises, markets, offers for
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sale, exports, and/or sells the “FUNSTIK” product through various distribution and retail channels
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including its website www.juvenilesolutions.com.
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31. Price Products has been damaged and continues to be damaged by Defendant’s
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infringing activities.
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1 32. Defendant’s use of Price Products’ DRIPSTIK Marks and DRIPSTIK Trade Dress

2 has caused, will continue to cause, and/or is likely to cause and continue to cause the trade,
3 consumers and/or the relevant purchasing public to be confused into believing that Price Products:
4 (a) is itself offering the “FUNSTIK” being advertised, marketed, promoted, and sold by Defendant;
5 (b) is affiliated, connected, or otherwise associated with Defendant and/or Defendant’s advertising,
6 marketing, promotion, and sale of the “FUNSTIK”; and/or (c) is sponsoring, endorsing,
7 administering, supervising, or is otherwise connected with Defendant and/or Defendant’s
8 advertising, marketing, promotion, and sale of the “FUNSTIK.”
9 33. Defendant will continue to use, cause confusion, and benefit and gain from its
10 wrongful use of Price Products’ DRIPSTIK Marks and DRIPSTIK Trade Dress unless enjoined by
11 this Court.
12 34. Price Products has lost sales of its DRIPSTIK and other products as a result of
13 Defendant’s infringing activities in an amount to be determined.
14 35. By virtue of its prior and continuous use of the DRIPSTIK Marks and DRIPSTIK
15 Trade Dress, Price Products has priority over Defendant’s subsequent infringing use of the
16 DRIPSTIK Marks and Trade Dress.
17 Count I
18 Unfair Competition and False Designation of Origin

19 Under Section 43(a) of the Lanham Act (15 U.S.C. § 1125(a))

20 36. Price Products realleges and incorporates each and every allegation set forth in

21 paragraphs 1 through 35 of the Complaint as if fully set forth and restated herein.
22 37. Defendant’s unlicensed, unconsented to, and otherwise unauthorized copying of Price

23 Products’ DRIPSTIK Marks and/or use of confusingly similar variations thereof, on and in
24 connection with its advertising, marketing, promotion and/or sale of its goods and/or services,
25 constitutes a false designation of origin that wrongly suggests to the relevant purchasing public and
26 consumers that such goods and/or services emanate from, or are licensed, endorsed, approved, or
27 sponsored by, or are in some other way associated or connected with, Price Products.
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1 38. Defendant’s unlicensed, unconsented to, and otherwise unauthorized copying of Price

2 Products’ DRIPSTIK Marks and/or use of confusingly similar variations thereof, on and in
3 connection its advertising, marketing, promotion and/or sale of its goods and/or services, constitutes
4 a false description or representation tending to suggest to the relevant purchasing public that Price
5 Products is the source of origin of such goods and/or services.
6 39. Defendant’s unlicensed, unconsented to, and otherwise unauthorized copying of

7 Price Products’ DRIPSTIK Marks and/or use of confusingly similar variations thereof, has caused
8 and/or is likely to continue to cause the trade, consumers and the relevant purchasing public to be
9 confused and mistaken as to the source of origin of the goods and/or services being offered and
10 provided by Defendant and, further, to deceive the trade, customers and the relevant purchasing
11 public as to whether Price Products is affiliated with, connected with, associated with, and/or a
12 sponsor of Defendant’s use of Price Products’ distinctive, well-known and valuable DRIPSTIK
13 Marks on and in connection with such goods and/or services.
14 40. By virtue of Defendant’s acts hereinabove described, Defendant has committed and
15 continues to commit acts of unfair competition and false designation of origin in violation of, inter
16 alia, Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).
17 41. Defendant’s aforesaid acts of unfair competition and false designation of origin have
18 caused and will continue to cause damage and irreparable harm to Price Products, and are likely to
19 continue unabated, thereby causing further damage and irreparable harm to Price Products and to the
20 valuable goodwill symbolized by and associated with its distinctive and well-known DRIPSTIK
21 Marks unless enjoined and restrained by the Court.
22 42. Price Products has no adequate remedy at law and will suffer irreparable injury if

23 Defendant is allowed to continue to wrongfully use Price Products’ DRIPSTIK Marks and/or any
24 confusingly similar variations thereof.
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1 Count II

2 Trade Dress Infringement Under Section 43(a) of the Lanham Act (15 U.S.C. § 1125(a))
3 43. Price Products realleges and incorporates each and every allegation set forth in

4 paragraphs 1 through 42 of the Complaint as if fully set forth and restated herein.
5 44. The elements comprising Price Products’ DRIPSTIK constitute unique, distinctive,

6 and protectable trade dress that sets Price Products and its DRIPSTIK product apart from other
7 competitors and their products in the market. While certain features of the DRIPSTIK are

8 functional, the DRIPSTIK Trade Dress, taken as a whole, is not.


9 45. The DRIPSTIK Trade Dress serves to identify the high-quality products that Price
10 Products offers in connection with the DRIPSTIK Trade Dress, is inherently distinctive, and has
11 acquired a strong secondary meaning in the minds of consumers in the market for Price Products’
12 and Defendant’s products.
13 46. Defendant’s unlicensed, unconsented to, and otherwise unauthorized copying of Price
14 Products’ DRIPSTIK Trade Dress and/or use of confusingly similar variations thereof, on and in
15 connection with its advertising, marketing, promotion and/or sale of its goods and/or services,
16 constitutes a false designation of origin that wrongly suggests to the relevant purchasing public and
17 consumers that such goods and/or services emanate from, or are licensed, endorsed, approved, or
18 sponsored by, or are in some other way associated or connected with, Price Products.
19 47. Defendant’s unlicensed, unconsented to, and otherwise unauthorized copying of Price
20 Products’ DRIPSTIK Trade Dress and/or use of confusingly similar variations thereof, on and in
21 connection its advertising, marketing, promotion, and /or sale of its goods and/or services,
22 constitutes a false description or representation tending to suggest to the relevant purchasing public
23 that Price Products is the source of origin of such goods and/or services.
24 48. Defendant’s unlicensed, unconsented to, and otherwise unauthorized copying of

25 Price Products’ DRIPSTIK Trade Dress and/or use of confusingly similar variations thereof, has
26 caused and/or is likely to continue to cause the trade, consumers and the relevant purchasing public
27 to be confused and mistaken as to the source of origin of the goods and/or services being offered and
28 provided by Defendant and, further, to deceive the trade, customers and the relevant purchasing

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1 public as to whether Price Products is affiliated with, connected with, associated with, and/or a
2 sponsor of Defendant’s use of Price Products’ distinctive, well-known and valuable DRIPSTIK
3 Trade Dress on and in connection with such goods and/or services.
4 49. By virtue of Defendant’s acts hereinabove described, Defendant has committed and

5 continues to commit acts of trade dress infringement in violation of, inter alia, Section 43(a) of the
6 Lanham Act, 15 U.S.C. § 1125(a).
7 50. Defendant’s aforesaid acts of trade dress infringement have caused and will continue

8 to cause damage and irreparable harm to Price Products, and are likely to continue unabated, thereby
9 causing further damage and irreparable harm to Price Products and to the valuable goodwill
10 symbolized by and associated with its distinctive and well-known DRIPSTIK Trade Dress unless
11 enjoined and restrained by the Court.
12 51. Price Products has no adequate remedy at law and will suffer irreparable injury if
13 Defendant is allowed to continue to wrongfully use Price Products’ DRIPSTIK Trade Dress and/or
14 any confusingly similar variations thereof.
15 Count III
16 Trademark Infringement and Unfair Competition Under Nevada Common Law

17 52. Price Products realleges and incorporates each and every allegation set forth in

18 paragraphs 1 through 51 of the Complaint as if fully set forth and restated herein.
19 53. Price Products is the owner of all right, title, and interest in and to its DRIPSTIK

20 Marks, and all goodwill appurtenant thereto.


21 54. Defendant has never requested or otherwise sought Price Products’ consent,

22 authorization, or a license, to use the DRIPSTIK Marks and/or any confusingly similar variations
23 thereof.
24 55. Without license, consent, or other authorization, Defendant adopted, began using,

25 marketing, advertising, promoting, and selling its goods and/or services using confusingly similar
26 variations of Price Products’ distinctive, valuable and well-known DRIPSTIK Marks.
27 56. The goods and/or services that Defendant is marketing, advertising, promoting, and
28 selling under or in connection with confusingly similar variations of Price Products’ distinctive,

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1 valuable and well-known DRIPSTIK Marks and/or confusingly similar variations thereof, are
2 marketed, advertised, and promoted to, and available in, the same channels of commerce and trade
3 as the goods marketed, advertised, promoted, and sold by Price Products.
4 57. The goods and/or services marketed, advertised, promoted, and sold by Defendant are

5 the same as, similar to, and/or competitive with, the goods marketed, advertised, promoted, and sold
6 by Price Products under and/or in connection with its valuable DRIPSTIK Marks.
7 58. Upon information and belief, Defendant adopted, used, and continues to use

8 confusingly similar variations of Price Products’ distinctive, valuable, and well-known DRIPSTIK
9 Marks in an unlicensed, unconsented to, and otherwise unauthorized manner for the purpose of
10 benefiting from and trading upon the goodwill enjoyed by Price Products from its DRIPSTIK Marks.
11 59. Defendant’s actions and wrongful use of confusingly similar variations of Price
12 Products’ DRIPSTIK Marks, has caused and will continue to cause the trade, consumers, and the
13 relevant purchasing public to be confused and to erroneously believe that Defendant is either
14 licensed by Price Products to use the marks and/or that Defendant and/or its respective goods and/or
15 services are otherwise associated with Price Products.
16 60. Upon information and belief, Defendant’s actions have been committed with
17 knowledge and intent to cause confusion, mistake, or deception.
18 61. Defendant’s actions constitute trademark infringement and unfair competition in

19 violation of Nevada or other applicable common law.


20 62. The aforesaid acts of trademark infringement and unfair competition have caused and

21 will continue to cause damage and irreparable harm to Price Products and are likely to continue
22 unabated, causing further damage and irreparable harm to Price Products and the goodwill
23 symbolized by and associated with its DRIPSTIK Marks unless enjoined and restrained by this
24 Court.
25 63. Price Products has no adequate remedy at law and will suffer irreparable injury if

26 Defendant is allowed to continue to wrongfully use confusingly similar variations of DRIPSTIK


27 Marks.
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1 Jury Demand

2 64. Price Products hereby demands trial by jury of all issues raised in this Complaint.

3 Prayer for Relief

4 WHEREFORE, Plaintiff Price Products LLC respectfully requests that the Court enter

5 judgment against Defendant Juvenile Solutions, Inc., as follows:


6 (A) That the Court preliminarily and permanently enjoin Defendant and/or its respective

7 employees, partners, officers, directors, agents, representatives, attorneys, successors, and assigns,
8 and all persons in active concert or participation with any of them, from using the DRIPSTIK Marks
9 and/or DRIPSTIK Trade Dress and/or any confusingly similar variations thereof, in any manner or
10 form, or any other reproduction, counterfeit, copy, or colorable imitation of such marks or trade
11 dress, either alone or in combination with any other designation, on or in connection with any
12 advertising, marketing, promoting, offer for sale, or sale of Defendant’s services or goods; and from
13 otherwise competing unfairly with Price Products;
14 (B) That the Court order Defendant to destroy and/or obliterate any and all “FUNSTIK”
15 products, promotional materials, and other items in Defendant’s possession, or under Defendant’s
16 control, which infringe upon Price Products’ DRIPSTIK Marks and/or DRIPSTIK Trade Dress
17 and/or any confusingly similar variations thereof, in any manner or form, or any other reproduction,
18 counterfeit, copy, or colorable imitation of Price Products’ DRIPSTIK Marks and/or DRIPSTIK
19 Trade Dress, either alone or in combination with any designation, and all plates, molds, matrices and
20 other means of making the same;
21 (C) That the Court order Defendant to pay to Price Products such damages as Price

22 Products has actually sustained:


23 (i) in consequence of Defendant’s infringement of and upon Price Products’

24 DRIPSTIK Marks and DRIPSTIK Trade Dress;

25 (ii) in consequence of Defendant’s false designations of origin; and

26 (iii) as a consequence of Defendant’s actions of unfair competition.

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1 (D) That the Court order Defendant to account for and pay to Price Products all profits

2 realized by Defendant from its infringement of or upon Price Products’ DRIPSTIK Marks and/or
3 DRIPSTIK Trade Dress, its false designations of origin, and its acts of unfair competition;
4 (E) That the Court find that the circumstances and actions of Defendant’s conduct were

5 and are sufficient to merit an award of punitive damages;


6 (7) That the Court order Defendant to pay Price Products its costs and expenses incurred

7 in and related to this action;


8 (8) That the Court order Defendant to pay to Price Products’ attorneys’ fees; and

9 (9) That the Court award such other and further relief as the Court deems just and proper
10 under the circumstances.
11 DATED this 27th day of October, 2009.
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By /s/ Alan W. Westbrook
14 Alan W. Westbrook
15 Nevada Bar No. 6167
PERRY, SPANN & WESTBROOK
16 1701 W. Charleston, Ste. 200
Las Vegas, Nevada 89102
17 Telephone: (702) 870-2400
Facsimile: (702) 870-8220
18
awestbrook@perryspann.com
19
Carina H. Schoenberger
20 Pro Hac Vice Pending
BRYAN CAVE LLP
21 211 N. Broadway, Ste. 3600
St. Louis, MO 63102
22 Telephone: (314) 259-2000
Facsimile: (314) 552-8000
23 carina.schoenberger@bryancave.com

24 Attorneys for Plaintiff

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