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INJUNCTIVE
RELIEF SOUGHT
_____________________________________/
COMPLAINT FOR TRADE DRESS INFRINGEMENT,
FALSE DESIGNATION OF ORIGIN, AND
COMMON LAW UNFAIR COMPETITION
Plaintiff, LIFESAVING SYSTEMS CORPORATION brings this action against
Defendant AERIAL MACHINE AND TOOL CORPORATION aka CAPEWELL AERIAL
SYSTEMS LLC for trade dress infringement, false designation of origin and common law
unfair competition and alleges:
INTRODUCTION
Nature of Action
1.
This is an action for trade dress infringement and false designation of origin
under the Lanham Act, 15 U.S.C. 1051 et seq. and unfair competition at
common law.
2.
4.
Upon information and belief, AERIAL MACHINE & TOOL CORPORATION aka
CAPEWELL AERIAL SYSTEMS LLC, hereinafter Defendant, is a Virginia
corporation having a place of business at 4298 Jeb Stuart Hwy, Meadows of Dan,
VA 24120.
JURISDICTION AND VENUE
5.
This Court has jurisdiction over the subject matter of this action pursuant to 28
U.S.C. 1331 AND 28 U.S.C. 1338, 15 U.S.C. 1121 and 15 U.S.C. 1125. The
Court has supplemental jurisdiction over the common law claim under 28 U.S.C.
1367(a).
6.
7.
8.
Plaintiff has served the worlds Search & Rescue (SAR) responders within the
Aviation and Marine sectors for over 35 years specializing in rescue, safety, and
Plaintiffs customers include all branches of the United States Military, foreign
militaries, police and fire departments worldwide, and both international and
domestic civilian helicopter operators and rescue agencies.
10.
11.
Plaintiff has been uniquely positioned with design and manufacturing capabilities
as well as distributing other top manufacturers products, and in-house design
and manufacturing capabilities permit Plaintiff to accommodate special end-user
requirements from a simple modification to an existing product or the start a
new development project.
12.
13.
14.
15.
The 983 Design Patent depicted a new, original and ornamental design for a
rescue hoist hook.
16.
Since issuance of the 983 Design Patent, Plaintiff has been the exclusive source
of the unique hoist hook design of the 983 Design Patent.
17.
Plaintiff adopted and has used the common law trademark D-LOK Hoist Hook
since introduction of the original and ornamental configuration.
18.
Plaintiffs distinctive D-LOK Hoist Hook has been advertised and prominently
displayed at trade shows, in Plaintiffs catalog, and on Plaintiffs website since its
initial introduction into the market in Spring of 1996.
19.
As a result of the continuous and exclusive marketing and sale of the patented
design, Plaintiff has become recognized by the industry and customers as the
sole source of the distinctive D-LOK Hoist Hook. Thus, the distinctive design of
the D-LOK Hoist Hook has become the trade identifier or trade dress for
Plaintiffs D-LOK Hoist Hook.
20.
21.
Plaintiffs distinctive D-LOK Hoist Hook trade dress has acquired secondary
meaning as a result of extensive promotion and sale of the D-LOK Hoist Hook
design.
22.
In direct competition with Plaintiff, Defendant markets two (2) helicopter rescue
hooks found on Defendants website (Composite Exhibit 3 hereto).
23.
Defendant claims these helicopter rescue hooks are manufactured under United
States Patent 6,363,589 issued April 2, 2002 and United States Patent Des.
626,908 issued November 9, 2010 (Exhibits 4 and 5 hereto).
24.
Neither of these two (2) rescue hook designs infringe Plaintiffs trade dress.
25.
Despite the fact that Defendant has sold Defendants patented non-infringing
rescue hooks over an extended period, Defendant chose to exhibit a locking
hoisting hook slavishly imitating the distinctive trade dress of Plaintiffs D-LOK
Hoist Hook at the Helicopter Association International Trade Show on March 1st3rd, 2016, as depicted in Exhibit 6 hereto.
26.
These news releases state that Defendant . . . is now accepting orders for the
new Double-LOK hook and will begin shipping to customers during the fourth
quarter of 2016.
28.
29.
Upon information and belief, the use of the name Double-LOK Rescue Hook
further adds to the confusion of the existing trade dress infringement.
30.
31.
Upon information and belief, Defendant is aware that Plaintiffs D-LOK Hoist
Hook has been marketed exclusively by Plaintiff.
32.
33.
Upon information and belief, Defendants use of Plaintiffs distinctive trade dress
that has come to identify Plaintiffs distinctive D-LOK Hoist Hook is likely to
cause confusion or to cause mistake or to deceive persons into the erroneous
belief that Defendant is licensed by, authorized by, endorsed by, sponsored by,
or are otherwise connected in some way with Plaintiff.
34.
35.
36.
37.
Upon information and belief, Defendants use of Plaintiffs distinctive trade dress
that has come to identify Plaintiffs D-LOK Hoist Hook constitutes false
descriptions and representations to the effect that Defendants Double-LOK
Rescue Hook is licensed by, authorized by, endorsed by, sponsored by, or are
otherwise connected in some way with Plaintiff.
38.
39.
Defendant has used the distinctive trade dress design that has come to identify
Plaintiffs D-LOK Hoist Hook without Plaintiffs license, authorization or
permission.
40.
Upon information and belief, the act and conduct of Defendant complained of
herein has damaged Plaintiff and, unless restrained, will impair the value of
Plaintiffs distinctive trade dress design and the goodwill represented thereby.
Plaintiff has no adequate remedy at law and would be irreparably harmed
without injunctive relief.
COUNT I
Trade Dress Infringement
41.
Plaintiff repeats and realleges each and every allegation of Paragraphs 1 through
39 as though fully set forth herein.
42.
43.
Since at least as early as 1996, Plaintiff has been the exclusive source of a
locking hoist hook marketed and sold under the common law trademark D-LOK
Hoist Hook.
44.
For over fifteen (15) years, Plaintiff has continuously and exclusively marketed
and sold of the distinctive D-LOC Hoist Hook.
45.
Through this extensive use, Plaintiff has established common law trade dress in
the D-LOK Hoist Hook.
46.
Through the continuous and exclusive marketing and sale of the distinctive DLOK Hoist Hook including displays at trade shows, in Plaintiffs catalog, and on
Plaintiffs website the distinctive D-LOK Hoist Hook trade dress has acquired
secondary meaning.
47.
48.
Defendant has used Plaintiffs distinctive D-LOK Hoist Hook trade dress without
license or authorization from Plaintiff.
49.
50.
Upon information and belief, by such wrongful acts, Defendant has and, unless
restrained by the Court, will continue to cause serious irreparable injury and
damage to Plaintiff and to the goodwill associated with Plaintiffs distinctive DLOK Hoist Hook trade dress.
51.
52.
Plaintiff repeats and realleges each and every allegation of Paragraphs 1 through
39 and 43 through 49 as though fully set forth herein.
53.
54.
55.
Upon information and belief, by such wrongful act, Defendant has and, unless
restrained by the Court, will continue to cause serious irreparable injury and
damage to Plaintiff and to the goodwill associated with Plaintiffs distinctive DLOK Hoist Hook.
56.
57.
Plaintiff repeats and realleges each and every allegation of Paragraphs 1 through
39, 43 through 49, 54 and 55 as though fully set forth herein.
58.
Upon information and belief, Defendant is passing off their Double-LOK Hook as
the distinctive trade dress manufactured and sold by Plaintiff as the D-LOK
Hoist Hook.
59.
Upon information and belief, Defendants practices constitute common law unfair
competition.
60.
Defendant as follows:
A.
B.
10
1.
2. Direct Defendant to account to Plaintiff for any and all profits derived by
Defendant from the sale of goods bearing the distinctive trade dress of
Plaintiff;
3. Award Plaintiff a monetary judgment against Defendant for Plaintiffs
damages and Defendants profits;
4. Treble the amount of such award on account of Defendants willful,
intentional, and bad faith conduct; and
5. Award Plaintiff reasonable attorney fees, costs and disbursements incurred
herein in view of Defendants intentional and willful false designation.
C.
11
D.
E.
Defendant be required to recall from distribution and surrender for destruction all
products, order forms, price lists, labels, advertisements, and other materials
located in the United States or intended for distribution in the United States that
incorporate or reproduce facsimiles of Plaintiff's D-LOK Hoist Hook trade dress.
F.
..
/s/ ARTHUR W. FISHER, III
Florida Bar No. 133689
PO Drawer 1219
Dunnellon, Florida 34430-1219
(813) 885-2006 (P)
(813) 888-6275 (F)
mail@tampaiplaw.com
12
JS 44 (Rev. 11/15)
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUC710NS ON NEXT PAGE OF THIS FORM.)
I.
(a)
PLAINTIFFS
DEFENDANTS
_H_i_lls_b_o_r_o_u~g~h_____
(C)
(352) 465-0930
0 2
U.S. Government
Plaintiff
~3
U.S. Government
Defendant
0 4
Diversity
(Indicate Citizenship of Parties in Item Ill)
, .,
CONTRACT
0 I IO Insurance
..,.
TORTS
0 310 Airplane
0 315 Airplane Product
2 IO Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectrnent
240 Torts to Land
245 Tort Product Liability
0 290 All Other Real Property
CIVIL RIGHTS
D
D
D
D
0 2
Citizen or Subject of a
Forei m Coun
0 3
FORFEITURE/PENALTY
PERSONAL INJURY
0
Product Liability
0 367 Health Care/
Pharmaceutical
Personal Injury
Product Liability
D 368 Asbestos Personal
Injury Product
Liability
PTF
O 4
DEF
0 4
0 5
Foreign Nation
0 6
I.A811K
D 740
D 751
Property Damage
Product Liability
PRISONER PETITIONS
Habeas Corpus:
D 463 Alien Detainee
D 5 IO Motions to Vacate
440
441
442
443
28
use 157
PROPERTYRIGHTS
D 820 Copyrights
D 830 Patent
~ 840 Trademark
D 720
BANKRUPTCY
0 422 Appeal 28 USC 158
0 423 Withdrawal
D 690 Other
' ' II
Medical Malpractice
REALPROPERTY
DEF
PTF
O I
PERSONAL INJURY
0 120 Marine
0 130 Miller Act
Ill. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Box for Plaintiff
Federal Question
(U.S. Government Not a Party)
_P_a_tr_ic_k_____ ___
D 790
D 79 I
Act
Labor/Management
Relations
Railway Labor Act
Family and Medical
Leave Act
Other Labor Litigation
Employee Retirement
Income Security Act
0
D
0
D
D
86 I
862
863
864
865
lA l ""''
0
D
D
D
D
D
IRITY
HIA ( 1395ft)
Black Lung (923)
DIWC/DIWW (405(g))
SSJD Title XVI
RSI (405(g))
OTHER STAtllTES
D
D
D
D
D
D
D
D
D
IMMIGRATION
3729(a))
400 State Reapportionment
410 Antitrust
430 Banks and Banking
450 Commerce
460 Deportation
470 Racketeer Influenced and
Corrupt Organizations
480 Consumer Credit
490 Cable/Sat TV
850 Securities/Commodities/
Exchange
890 Other Statutory Actions
891 Agricultural Acts
893 Environmental Matters
895 Freedom oflnformation
Act
896 Arbitration
899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
950 Constitutionality of
State Statutes
O 2 Removed from
State Court
Remanded from
Appellate Court
0 4 Reinstated or
Reopened
0 5 Transferred from
Another District
0 6 Multidistrict
Litigation
(specify)
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
trade dress infringement and false designation of origin together with unfair competition under common law
VII. REQUESTED IN
COMPLAINT:
VIII. RELATED CASE(S)
IF ANY
RECEIPT#
AMOUNT
DEMAND$
JURY DEMAND:
DOCKET NUMBER
JUDGE
MAG . JUDGE
EXHIBIT 1
Plaintiffs D-LOK Hoist Hook
EXHIBIT 2
111111111111111
l1StX)D389983S
1191
Maness
[llJ
[45J
[541
[76]
Inventor:
[**)
Term:
14 \'ears
[21]
{22]
Filed:
[51]
[52]
(58]
Patent Number:
"
Date of Patent:
Des. 389,983
**Jan. 27. 1998
CLAIM
and <h:scribed.
Feb. 19, 1997
(56J
U.S. PiITE.."lT IXX'lTME.'ffS
IJ. 209.917
D. 297.377
DESCRIPTION
FIG. J is an i&emetric view of the lodting hoist hook of this
invention;
f-lG. ;! is a front elevation view thereof;
FIG. ~I is a rear elevation viev. thereof;
HG. 4 is a left SJde elevation view thereof:
FIG. S is a right elrvation view thereof;
rlG. ti is a top plan view thereof. and,
FIG. 7 is a oottom plan view thereof
The broken line showing of a round boss is tor illustrative
purposes only and forms no part of the daimed design.
U.S. Patent
Sheet 1 of 3
Des. 389,983
/"---......,
~'---/'
I
Fig. 1
U.S. Patent
Sheet 2 of 3
Des. 389,983
U.S. Patent
Sh~~t 3 of 3
Des. 389,983
Fig. 5
Fig. 4
Fig. 6
Fig. 7 --
COMPOSITE EXHIBIT 3
Selected Capewell Aerial Systems' Webpages
Page 122of 2
8:16-cv-03014-CEH-AEP
MainCase
Catalog
> ..,. Search and RescueDocument
Equipment1-4 Filed 10/25/16 Page 2 of 6 PageID
~
APEWELL
PRODUCT CATEGORIES
HOME
ARCH PRODUCTS
------ ----]
I
lODUCTS
1erial Delivery Products
Air Warrior" Products
:ases, Pouches and Misc.
:mergency Breathing
;terns (EBS}
'lotation Collars and
;terns
;sA Schedule Products
iardware Products
ielmet Systems &
:essories
IVG Accessories
)ii & Gas Industry Products
arachute Components &
:essories
ersonal Restraints and
3tbelts
iearch and Rescue
uipment
actical Vests and
messes
JS Coast Guard Products
JS Navy Products
~KS
About Us
Contact Us
US Gene,.3i
;,v r\'iiClJJ'$ Admifllt!..lfiltk;.n
IMliiffltl
Spider
AMTC-S1378-BL
The Six Person Spider Extraction Device is designed to safely and efficiently move up to six
rescuers or appropriately packaged survivors over a short distance using short-haul
techniques with a medium to large helicopter. This technique reduces flight time and risk by
eliminating excessive movements to and from a hazardous location
ltMAMII
Chameleon Rescue Harness
http://new.aerialmachineandtool.com/webshaper/store/viewCat.asp?catID=2
10/5/2016
8:16-cv-03014-CEH-AEP
Page 223of 2
MainCase
Catalog
> ~ Search and RescueDocument
Equipment1-4 Filed 10/25/16 Page 3 of 6 PageID
AMTC-H1037-BLJM or Lor XL
FAA TS0-C167 APPROVED! Chameleon Tactical Rescue Harness is designed with multimission forces in mind. A modular man mounted system that can be easily modified in the
field for changing mission requirements.
IMIIMII
Auto-Lok Rescue Hook
AMTC-R2046 & AMTC-2047 w/swivel
The new Aerial Auto-Lok Hook is an innovative design, which provides a hoisting hook that
is always locked for added safety.
lMMMII
Helicopter Rescue Hook
MS18027-2 (w/o swivel) & MS18027-2A (w/ swivel)
This hook is the time tested US military rescue hook. It is constructed of tough, forged
stainless steel and incorporates a main hook, smaller utility hook, and eye for the
attachment of trail/tag lines or chemlite clip. Weight: 1.17 lbs.
IMUIMII
lt+IMMII
USAR
AMTC-K1074-BL
The Aerial Urban Search and Rescue System (USAR) is cutting edge personal protective
equipment. It consists of four major sub-assemblies integrated into a modular manmounted system that can be easily modified in the field for changing mission requirements.
IMMIMII
Slide-Lok Rescue Hook with Swivel
AMTC-R2023
Our patented helicopter rescue hook with "Slide-Lok" release is durable and dependable and
exceeds US military specs.
ltMiffill
Chemlite Attachment Strap
AMTC-Sl418-GN
Strap is used for attaching lightsticks to rescue hooks or other devices during night
operations. Hardware is corrosion resistant.
lt+iMMII
Slide-Lok Rescue Hook w/o Swivel
AMTC-R2028
Our patented helicopter rescue hook with "Slide-Lok" release is durable and dependable.and
exceeds military specs.
llMHMtl
About Us I Contact Us I Product Map
Copyright 2016 Capewell Aerial Systems
e-catalogue by webShaper
http://new.aerialmachineandtool.com/webshaper/store/viewCat.asp?catID=2
10/5/2016
http://new.aerialmachineandtool.com/webshaper/store/viewProdPrinte ...
CATALOG HOME
PRODUCT CATEGORIES
Print Product
!'lill11Q@)Qg > !"~arc:b_@<1 R_<s~c:ug~guiJ)111ent
HOME
The Auto-Lok is manufactured from forged stainless steel. The design incorporates easy-to-use triggers on each side of the hook gate. These triggers
are easily depressed by a rescuer in a gloved hand, or by an untrained survivor to open the latch. The Auto-Lok ,s also designed to prevent dynamic
roll-out at all times. Weight: 1.48 lbs
PN: AMTC-R2046 & AMTC-2047 w/swivel
US Patent #D626,908 S
,A.QQ\.!LU_s
I CQOtactJ.Ls I Proouct11ap
I of I
I 01512016 9:36 PM
Capewell Aerial
Systems
Case
8:16-cv-03014-CEH-AEP
CATALOG HOME
PRODUCT CATEGORIES
http ://new. aeri almach ineandtoo 1. com/webshaper/ store/view Prod Pri nte ...
Document 1-4
Filed 10/25/16 Page 5 of 6 PageID 25
HOME
Print Product
MffilJ(atalog > ,.search aocLRescue Equipment> Slide-Lok Rescue Hook with Swivel
The Slide-Lok Helicopter Rescue Hook is compatible with all helicopter rescue hoists. 'orged from stainless steel, the "Slide-Lok" hook has a working
load limit of 3,000 lbs. and exceeds military specifications for rescue hooks. The patented "Slide-Lok" mechanism prevents accidental opening and is
easily operated with one hand. Its streamlined design eliminates snag hazards and its large bail accommodates multiple nngs of different sizes.
Designed to be operated safely in the locked or unlocked postion. When in the locked position, dynamic roll-out ,s prevented. Not for human cargo.
This is the hook of choice for the U.S. Coast Guard and U.S. Army Special Operations Weight: 1.46 lbs.
United States Patent #6,363,589
PN: AMTC-R2023
Contact AERIAL for pricing and availability. Also located on GSA Advantage.
(t)lgJIJ
II
~.!trr:!?.t!!ge!
ecata)Qgu.ebyw_gbShi;J)e[
I of I
10 :','2016 9:36 PM
CATALOG HOME
PRODUCT CATEGORIES
HOME
Print Product
Main cata)Qg > ~Search and Rescue Equipment> Slide-Lok Rescue Hook w/o Swivel
The Slide-Lok Helicopter Rescue Hook is compatible with all helicopter rescue hoists. Forged from stainless steel, the "Slide-Lok" hook has a working
load limit of 3,000 lbs. and exceeds military specifications for rescue hooks. The patented "Slide-Lok" mechanism prevents accidental opening and is
easily operated with one hand. Its streamlined design eliminates snag hazards and its large bail accommodates multiple rings of different sizes.
Designed to be operated safely in the locked or unlocked postion. When in the lockec position, dynamic roll-out is prevented.
This is the hook of choice for the U.S. Coast Guard and U.S. Army Special Operations. Weight: 1.46 lbs.
United States Patent #6,363,589
PN: AMTC-R2028
Contact AERIAL for pricing and availability.
I of I
10'5'20lfi 9:35 PM
EXHIBIT 4
EXHIBIT 5
EXHIBIT 6
Defendant's Double-Lok Rescue Hook
EXHIBIT 7
),
CapewellAerialstems CA aworldleaderin
aviationsafetproductsandatop tiermanufacturer
ofhelicopterrescuehooks hasintroducedafail
safelockingrescuehook
TheDoule LokHookisdesignedtoprevent
accidentalopeningwhichcanleadto rollouts
hookisavailaleinHi Vizellowtoincreasevisiilit
inallweatherconditionsandunderwater
TheDoule Lokfeatureisengineeredforeaseof
use Thetwolocksafetgateisintuitiveandcan
eoperatedeasilwithonehandevenwithgloves
treatedstainlesssteelandisratedwithaworking
loadof3 000pounds
TheDoule LokHookisdesignedtopreventaccidentalopeningwhichcan
Advertisement
Doule Lokhookisavailaleineitherasatin
visiilitellownishwithcontrastingorangelock
stainlesssteel nishorapowder coatedhigh
iscritical
Advertisement
CapewellusinesslinemanagerutchFlthe
himselfaretiredUnitedtatesCoastGuardMaster
cerandrescueswimmer,said:
ChiefPettO
Capewellhasalwasmadetheestrescuehooks
andthenewDoule LokHookputsusevenfarther
ahead It sastepuphavingmoreoptionsand
increasedvisiilit
FeedackonthenewHi Vizpaintschemehaseen
sopositivethatCAhasdecidedtomakeit
availaleforitsentirelineofhooksincludingthe
CapewellAerialstemsisnowacceptingordersfor
thenewDoule Lokhookandwilleginshippingto
customersduringthefourthquarterof2016
LAVARPLY
EXHIBIT 8
SALES
ABOUT
CATEGORIES
ARCHIVES
TACTICAL FANBOY
ADVERTISE
The Double-Lok feature is engineered for ease of use. The two lock safety gate is intuitive and can be
operated easily with one hand even with gloves on. The hook body is forged from 17.4 PH, heat-treated
stainless steel and is rated with a working load of 3,000 pounds. The Double-Lok hook is available in
either a satin stainless steel nish or a powder-coated high-visibility yellow nish with contrasting
orange lock release. In tests, the new neon paint scheme was greatly preferred by search & rescue
professionals who often operate in high stress conditions where spatial and situational awareness is
critical.
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COMPOSITE EXHIBIT 9
Side-by-Side Comparison
Figure 1: Copy on left - Original on right - Photographed March 3rd HAI Show Louisville, KY
Figure 2: Copy on left - Original on right - Photographed March 3rd HAI Show Louisville, KY
Figure 3: Copy on left - Original on right - Photographed March 3rd HAI Show Louisville, KY