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Case: 1:14-cv-02484 Doc #: 1 Filed: 11/11/14 1 of 5.

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IN THE UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

BALL, BOUNCE AND SPORT, INC.


1 Hedstrom Drive
Ashland, OH 44805
Plaintiff,
v.
LARRY BRUN
10265 Santa Monica Blvd. Apt. 2
Los Angeles, CA 90067-6426
Defendant.

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Case No. ________________


Judge____________________

COMPLAINT
(JURY DEMAND ENDORSED HEREON)

Now comes Plaintiff Ball, Bounce and Sport, Inc. (hereinafter BBS), by and
through counsel, and for its Complaint hereby avers as follows:
PARTIES, JURISDICTION AND VENUE
1.

BBS is a corporation duly organized and existing under the laws of the state of

Ohio and maintains its principal place of business in Ashland Ohio. BBS produces a wide range
of toys and exercise products. Hedstrom Plastics, Inc. is a registered trade name of BBS.
2.

Upon information and belief, Larry Brun is an individual residing in the state of

California.
3.

This is an action arising under the Federal Declaratory Judgment Act, 28 U.S.C.

2201 and 2202, and under the laws of the United States concerning actions relating to
intellectual property rights, including Patents under Title 35 of the United States Code, Unjust
enrichment under Title 15 of the United States Code, and Copyrights under Title 17 of the
United States Code.

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4.

This Court has subject matter jurisdiction pursuant to 28 U.S.C. 1331 (federal

question), 28 U.S.C. 1332 (diversity of citizenship), and 28 U.S.C. 1338 (acts of Congress
relating to patents, copyrights and unfair competition).
5.

This Court has personal jurisdiction over Brun because he transacts business in

Ohio and has purposefully directed his activities at Ohio and BBSs claims arise out of those
activities.
6.

Venue is appropriate in this district pursuant to 28 U.S.C. 1391(b) as a substantial

part of the events or omissions given rise to the claim occurred in the State of Ohio.
FACTS
7.

Brun owns three U.S. Design patents for exercise tubes, namely, U.S. Patent No.

D544,554; U.S. Patent No. D633,155; and U.S. Patent No. D639,357.
8.

Unlike a utility patent which protects a new and useful process, machine,

manufacture, or composition of matter, a design patent (such as the ones obtained by Brun)
protects a new, original, and ornamental design embodied in or applied to an article of
manufacture.
9.

In order to obtain a monopoly over the ornamental design of his exercise tubes,

Brun was required to publically disclose the ornamental designs he was claiming in such a way
that the public would be able to replicate and use such designs when the patent expired.
10.

Brun further claims to own copyrights relating to marketing materials, studies and

user manual content he prepared relating to water filled exercise tubes.


11.

In 2012, Larry Brun contacted BBS to discuss a water filled exercise tube that he

referred to as the Attitube.

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12.

The concept of a water filled exercise tube did not originate with Brun, and the

Patent Office has issued numerous design patents to other inventors relating to the design of
water filled exercise tubes.
13.

Brun exchanged emails with a BBS employee for a period of less than a month,

from early July to early August of 2012.


14.

BBS later licensed the invention disclosed in utility patent 8,727,951 (entitled

Weight Training Device and Method of Use) from Rogue Wave Industries, LLC in connection
with a water filled exercise tube that BBS named the Surge.
15.

The Surge product does not use any of the ornamental designs disclosed in the

D544,554, D633,155, or D639,357 patents.


16.

None of the materials associated with the Surge product incorporate copyrightable

expression from any marketing materials, studies and user manual content prepared by Brun.
17.

On October 15, 2014, more than two years after Brun was last in contact with

BBS, a law firm representing Brun sent a letter to BBS claiming that the ornamental design of
the Surge infringes the design patents held by Brun.
18.

The letter further contended that the website created by BBS to market the Surge

product incorporated copyrightable expression from Bruns promo manual for the Attitube.
19.

Finally, the letter contended that, based upon the emails exchanged between Brun

and a BBS employee in 2012, BBS had misappropriated Bruns ideas for a water filled
exercise tube and BBS had therefore violated numerous Federal and state unfair competition
laws.
20.

The letter contended that Brun would immediately file suit if BBS did not

respond to the letter by October 31, 2014.

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21.

BBS did not respond to the letter by the deadline set forth by Brun, but Brun has

yet to file suit as threatened in the letter sent on his behalf.


COUNT ONE
(Declaratory Judgment)
22.

Plaintiff incorporates by reference the allegations set forth in the preceding

paragraphs as if fully rewritten herein.


23.

This claim is brought under the authority of Rule 57 and the Declaratory

Judgment Act, 28 U.S.C. 2201 and 2202.


24.

BBS is reasonably at legal risk because of an unresolved dispute with Brun.

25.

Brun has accused BBS of patent infringement, copyright infringement, and unfair

competition and has threatened BBS with litigation where the amount in dispute would exceed
$75,000.
26.

Although Brun threatened to commence a legal action immediately if no

response was received to its letter by October 31, 2014, he has failed to bring that action to date.
27.

The looming threat of litigation has had an adverse effect upon BBS. Among

other things, BBS is hesitant to invest in the marketing and promotion of the Surge product given
the possibility of injunctive relief and monetary damages based upon its volume of sales.
28.

BBS is entitled to a judicial declaration that its products do not infringe on the

D544,554, D633,155, or D639,357 patent. BBS is further entitled to a judicial declaration that
none of the materials prepared in relation to its products infringe on any copyright held by Brun.
Finally, BBS is entitled to a judicial declaration that its actions do not constitute unfair
competition or any other tort which would allow Brun to recover from BBS.
WHEREFORE, Plaintiff Ball, Bounce and Sport, Inc. prays for relief against Larry Brun
as follows:

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a)

A declaration from the Court that BBSs products do not infringe on the

D544,554, D633,155, or D639,357 patent; that none of the materials prepared in relation to
BBSs products infringe on any copyright held by Brun; and that BBSs actions do not constitute
unfair competition or any other tort which would allow Brun to recover from BBS.
b)

A declaration from the Court that Brun is without right or authority to threaten or

maintain suit against BBS, its officers, agents, customers or suppliers for patent or copyright
infringement or any other cause of action.
c)

Attorneys fees incurred by Plaintiff associated with this litigation.

d)

Such other and future relief as the Court may deem appropriate.

Respectfully submitted,

By:

/s/ Patrick E. Noser


Patrick E. Noser (S. Ct. #0075144)
Andrew P. Lycans (S.Ct. #0077230)
E-mail: noser@ccj.com; lycans@ccj.com
CRITCHFIELD, CRITCHFIELD & JOHNSTON, LTD.

225 North Market Street, P. O. Box 599


Wooster, OH 44691
Phone: 330-264-4444; Fax: 330-263-9278
Attorneys for Plaintiff

JURY DEMAND
Plaintiff Ball, Bounce and Sport, Inc. hereby demands a trial by jury on all issues so
triable.
/s/Patrick E. Noser
Patrick E. Noser (S.Ct. #0075144)