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Case 3:19-cv-01125-BAS-WVG Document 1 Filed 06/17/19 PageID.

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1 Ben West (SBN 251018)


David H. Lichtenstein (SBN 259868)
2 CALDARELLI HEJMANOWSKI PAGE & LEER, LLP
3398 Carmel Mountain Road, Suite 250
3 San Diego, California 92121
(858) 720-8080
4 dbw@chpllaw.com
david@chpllaw.com
5

6 Michael A. Dee, (IA AT0002043, pro hac vice forthcoming)


Brant D. Kahler (IA AT0009819, pro hac vice forthcoming)
7 Christopher A. Proskey (IA AT0009316, pro hac vice forthcoming)
BROWN, WINICK, GRAVES, GROSS,
8 BASKERVILLE AND SCHOENEBAUM, PLC
666 Grand Avenue, Suite 2000
9 Des Moines, IA 50309-2510
(515) 242-2400
10 kahler@brownwinick.com
dee@brownwinick.com
11 prosky@brownwinick.com

12 Attorneys for KREG ENTERPRISES, INC.

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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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KREG ENTERPRISES, INC., an Iowa Case No. '19CV1125 BAS WVG
17 corporation,
COMPLAINT AND DEMAND FOR
18 Plaintiff, JURY TRIAL
19 vs.
20 ARMOR TOOL, LLC, an Arizona
limited liability company
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Defendant.
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COMPLAINT
Case 3:19-cv-01125-BAS-WVG Document 1 Filed 06/17/19 PageID.2 Page 2 of 37

1 COMES NOW Plaintiff, Kreg Enterprises, Inc., and for its Complaint against
2 Defendant, Armor Tool, LLC, hereby states and alleges as follows:

3 PARTIES, JURISDICTION AND VENUE


4 1. Plaintiff, Kreg Enterprises, Inc., d/b/a Kreg Tool Company (“Kreg”), is a
5 domestic for-profit corporation organized and operated under the laws of the State of

6 Iowa with its principal place of business at 201 Campus Dr., Huxley, Story County,

7 Iowa.

8 2. Defendant, Armor Tool, LLC (“Armor”), is a limited liability company


9 organized under the laws of the State of Arizona with its principal place of business

10 at 6747 Gateway Park Dr., San Diego, California 92154.

11 3. This Court has subject matter jurisdiction over this lawsuit pursuant to
12 28 U.S.C. §§ 1331 and 1338.

13 4. This Court has personal jurisdiction over all parties to this lawsuit.
14 5. Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391 and 1400.
15 GENERAL ALLEGATIONS
16 6. In 1986, Craig Sommerfeld was in the process of building his home and
17 needed to find a way to attach his dowelled face frames to his kitchen cabinet carcass

18 members. Although he was a tool and die maker by trade, and woodworker out of

19 necessity, Craig had a problem. Not wanting to nail the face frames on and then fill
20 them with putty, he designed and built “Craig’s Jig,” which was a single-hole pocket-

21 hole jig crafted from steel and aluminum. Craig’s Jig allowed him to attach the face

22 frames from the cabinet’s interior, where the joint could be hidden from view.

23 7. Encouraged by friends and coworkers, Craig built a few more jigs and
24 set out to show them to the public at local woodworking shows. At these shows,

25 Craig met an audience who had no knowledge of the joinery method he was

26 promoting, yet they were very interested in learning about a new way to build
27 projects with wood. Week after week, month after month, year after year, Craig

28 continued to build his products and promote them at weekend woodworking shows.

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COMPLAINT
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1 8. Hundreds of trade shows and thousands of demonstrations later, Kreg


2 Tool Company has emerged as the leader in pocket-hole technology. From Kreg

3 Jigs® to fully-automatic machines, Kreg offers simple solutions that have changed

4 the way thousands of woodworkers join wood. In addition, Kreg offers other

5 innovative tools for clamping, joining, routing, cutting, measuring, and more.

6 9. Today, Craig Sommerfeld’s son, Todd Sommerfeld, is the CEO of Kreg,


7 which is an employee-owned company that employs over 200 employees.

8 FIRST CAUSE OF ACTION


9 INFRINGEMENT OF U.S. PATENT NO. 8,231,313
10 10. Kreg repeats and realleges the allegations asserted in Paragraphs 1
11 through 9 above as if set forth fully herein.

12 11. On July 31, 2012, U.S. Patent No. 8,231,313 (the “‘313 Patent”)
13 (attached hereto as Exhibit 1), entitled “Adjustable Holding System” was duly and

14 legally issued to Allen IP Incorporated, as assignee, on Application No. 11/947,722,

15 filed November 29, 2007.

16 12. On June 27, 2013, Allen IP Incorporated, as assignor, assigned all right,
17 title and interest in and to the ‘313 Patent to Kreg.

18 13. At all times relevant to this Complaint, the ‘313 Patent has been in force,
19 and Kreg has been, and is, the owner of all right, title and interest in and to the ‘313
20 Patent.

21 14. The technology of the ‘313 Patent has been incorporated into Kreg’s line
22 of pocket hole jigs including:

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COMPLAINT
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1 a. Kreg’s “K3” pocket hole jig system:

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b. Kreg’s K4 pocket hole jig system:
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COMPLAINT
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1 c. Kreg’s K5 pocket hole jig system:

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13 15. Armor, without permission from Kreg, has been and continues to
14 infringe the ‘313 Patent by manufacturing, using, selling, and offering to sell in the

15 United States a product or products that meet all of the requirements of at least Claim

16 1 of the ‘313 Patent either literally or under the doctrine of equivalents.

17 16. Claim 1 of the ‘313 Patent reads as follows1:


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An adjustable holding system comprising:
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a base adapted for use on a work surface, the base having at least
20 one exit hole adapted to serve as a chip breaker by allowing
21 waste material generated during drilling to exit a drilling
area; and
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a guide assembly, adapted and arranged to be movable with
respect to a portion of the base, having a guide channel
24 disposed to receive and guide a shank of a drill bit, the
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guide assembly having at least one exit hole adapted to

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27 Elements of the claim language has been placed in colored, bold and underlined text
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28 to correlate with the comparison to Armor’s “Auto-Jig Pocket Hole System” shown
below.
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COMPLAINT
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1 allow waste material generated during drilling to exit a


drilling area.
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3 17. Specifically, at least Armor’s “Auto-Jig Pocket Hole System” infringes


4 all of the elements of at least Claim 1 of the ‘313 Patent in at least the following

5 manners:
a. Armor’s Auto-Jig Pocket Hole System2 is “[a]n adjustable
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7 holding system comprising:”


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“base”
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All photographs utilized in this section are of Armor’s Auto-Jig Pocket Hole System
and came from Armor’s website (https://armor-tool.com).
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COMPLAINT
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1 c. “the base having at least one exit hole adapted to serve as a chip
2 breaker by allowing waste material generated during drilling to
3 exit a drilling area; and…”
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“drilling area”
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COMPLAINT
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1 d. “a guide assembly, adapted and arranged to be movable with


2 respect to a portion of the base…”
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“guide assembly” “base”
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15 a drill bit,”
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COMPLAINT
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“shank of a drill bit”
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12 f. “the guide assembly having at least one exit hole adapted to


13 allow waste material generated during drilling to exit a drilling
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COMPLAINT
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1 18. Armor’s past and continued infringement of the ‘313 Patent is willful in
2 nature and the result of egregious misconduct.

3 19. Armor’s infringement of the ‘313 Patent is the proximate cause of


4 substantial damage to Kreg.

5 20. If not enjoined as requested herein, Armor’s infringement of the ‘313


6 Patent will irreparably harm Kreg.

7 SECOND CAUSE OF ACTION


8 INFRINGEMENT OF U.S. PATENT NO. D840,803
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10 21. Kreg repeats and realleges the allegations asserted in Paragraphs 1


11 through 20 above as if set forth fully herein.

12 22. On February 19, 2019, U.S. Patent No. D840,803 (the “‘D803 Patent”)
13 (attached hereto as Exhibit 2), entitled “Small Container” was duly and legally issued

14 to Kreg Enterprises, Inc., as assignee, on Application No. 29/584,705, filed

15 November 16, 2016.

16 23. At all times relevant to this Complaint, the ‘D803 Patent has been in
17 force, and Kreg has been, and is, the owner of all right, title and interest in and to the

18 ‘D803 Patent.

19 24. The allowed drawings of the ‘D803 Patent are as follows3:


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25 Note, the USPTO errantly published annotated figures in the ‘D803 patent. Kreg
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26 has discussed this matter with Examiner Omeed Agilee, the Examiner assigned to the
case. Pursuant to the Examiner’s direction Kreg has filed a Request for a Certificate
27 of Correction under 37 CFR 1.322 “Certificate of correction of Office mistake”

28 which is attached as Exhibit 3. It is Kreg’s belief that the certificate of correction


should be granted in the near term.
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14 25. Armor, without permission from Kreg, has been and continues to
15 infringe the ‘D803 Patent by manufacturing, using, selling, and offering to sell in the

16 United States a product or products that embodies the patented design or any

17 colorable imitation thereof in such a manner as to deceive an ordinary observer into

18 confusing the design of Armor’s products with the patented design protected under

19 the ‘D803 Patent.


20 26. A side by side comparison between Armor’s container and Kreg’s
21 patented container shows that Armor’s container has the same general visual

22 appearance to that shown in the ‘D803 Patent and reveals the similarities which result

23 in confusion:

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23 27. Armor’s past and continued infringement of the ‘D803 Patent is willful
24 in nature and the result of egregious misconduct.

25 28. Armor’s infringement of the ‘D803 Patent is the proximate cause of


26 substantial damage to Kreg.
27 29. If not enjoined as requested herein, Armor’s infringement of the ‘D803
28 Patent will irreparably harm Kreg.
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COMPLAINT
Case 3:19-cv-01125-BAS-WVG Document 1 Filed 06/17/19 PageID.22 Page 22 of 37

2 THIRD CAUSE OF ACTION

3 UNFAIR COMPETITION / TRADE DRESS INFRINGEMENT


(SCREW CONTAINERS)
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5 30. Kreg repeats and realleges the allegations asserted in Paragraphs 1


6 through 29 above as if set forth fully herein.

7 31. Kreg manufactures, sells and/or distributes multiple lines of screws


8 packaged in Kreg’s unique containers, all of which contain Kreg’s distinctive trade

9 dress.

10 32. Kreg has expended considerable time, effort and resources to design and
11 develop unique and inherently distinctive containers (including obtaining the ‘D803

12 Patents discussed above).

13 33. Kreg’s trade dress has become associated with Kreg and has become an
14 indication of a single, high-quality source for products in the minds of the relevant

15 purchasing public.

16 34. Kreg is the owner of all right, title, and interest in and to its trade dress.
17 35. Kreg’s trade dress is nonfunctional.
18 36. Armor, without permission from Kreg, has been and continues to
19 manufacture, sell, and offer to sell in the United States nearly identical containers in a
20 manner that is likely to cause confusion among ordinary customers as to the source,

21 sponsorship, affiliation, or approval of Armor’s products, thus constituting unfair

22 competition and trade dress infringement under 15 U.S.C. § 1125(a)(1).

23 37. Specifically, and without limitation, as shown in the below photographs,


24 Armor’s containers, when compared to Kreg’s containers, infringe Kreg’s trade dress

25 and unfairly compete with Kreg in at least the following manners:

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COMPLAINT
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1 a. Armor’s container lid has the same general visual appearance and

2 is substantially similar to Kreg’s container lid, including, without


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limitation, size, shape, dimension and material:
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COMPLAINT
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1 b. Armor’s container sides have the same general visual appearance


2 and are substantially similar to Kreg’s container sides, including,
3 without limitation, the size, shape, dimension, material and
4 trapezoid designs along all sides:
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COMPLAINT
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1 c. Armor’s container bottom has the same general visual appearance


2 and is substantially similar to Kreg’s container bottom, including,
3 without limitation, size, shape, dimension, material and feet:
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COMPLAINT
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1 d. Armor’s container top side has the same general visual appearance
2 and is substantially similar to Kreg’s container top side, including,
3 without limitation, size, shape, dimension, material, protrusions
4 and shelf hook:
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COMPLAINT
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e. Armor’s container bottom side has the same general visual
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appearance and is substantially similar to Kreg’s container bottom
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side, including, without limitation, size, shape, dimension,
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material, protrusions and trapezoids:
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COMPLAINT
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1 f. Armor’s container inside has the same general visual appearance


2 and is substantially similar to Kreg’s container inside, including,
3 without limitation, size, shape, dimension and material:
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COMPLAINT
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1 g. Armor’s container corners have the same general visual


2 appearance and are substantially similar to Kreg’s container
3 corners, including, without limitation, size, shape, dimension,
4 material, and removability:
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COMPLAINT
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9 38. Armor’s unfair competition and trade dress infringement is the


10 proximate cause of substantial damage to Kreg.

11 39. If not enjoined as requested herein, Armor’s unfair competition and


12 infringement of Kreg’s trade dress will irreparably harm Kreg.

13

14 FOURTH CAUSE OF ACTION


15 UNFAIR COMPETITION / TRADE DRESS INFRINGEMENT
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(CLAMP PACKAGING)

17 40. Kreg repeats and realleges the allegations asserted in Paragraphs 1


18 through 39 above as if set forth fully herein.

19 41. Kreg manufactures and sells multiple lines of wood project clamps in
20 packaging which contains Kreg’s distinctive trade dress.

21 42. Kreg has expended considerable time, effort and resources to design and
22 develop unique and inherently distinctive packaging for its clamps.

23 43. Kreg’s trade dress has become associated with Kreg and has become an
24 indication of a single, high-quality source for clamp packaging in the minds of the

25 relevant purchasing public.

26 44. Kreg is the owner of all right, title, and interest in and to its trade dress.
27 45. Kreg’s trade dress is nonfunctional.
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COMPLAINT
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1 46. Armor, without permission from Kreg, has been and continues to
2 manufacture, sell, and offer to sell in the United States nearly identical clamp

3 packaging in a manner that is likely to cause confusion among ordinary customers as

4 to the source, sponsorship, affiliation, or approval of Armor’s products, thus

5 constituting unfair competition and trade dress infringement under 15 U.S.C. §

6 1125(a)(1).

7 47. As shown in the below photographs, Armor’s clamp packaging, when


8 compared to Kreg’s clamp packaging, infringes Kreg’s trade dress and unfairly

9 competes with Kreg. Specifically, Armor’s clamp packaging has the same general

10 visual appearance and is substantially similar to Kreg’s clamp packaging, including,

11 without limitation, the size, shape, dimensions, positioning, orientation, material, and

12 color.

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23 proximate cause of substantial damage to Kreg.

24 49. If not enjoined as requested herein, Armor’s unfair competition and


25 infringement of Kreg’s trade dress will irreparably harm Kreg.

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COMPLAINT
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1 PRAYER FOR RELIEF


2 WHEREFORE, Plaintiff, Kreg Enterprises, Inc., respectfully requests that the
3 Court enter judgment in its favor and against Defendant, Armor Tool, LLC as

4 follows:

5 On the First Cause of Action:


6 A. Temporarily and permanently enjoin Defendant, Armor Tool,
7 LLC, and all persons in active concert or participation with it, from further acts
8 of infringement of the ‘313 Patent, pursuant to 35 U.S.C. § 283;
9 B. Order Defendant, Armor Tool, LLC, to pay to Plaintiff, Kreg
10 Enterprises, Inc., all damages adequate to compensate Plaintiff, Kreg
11 Enterprises, Inc., for Defendant, Armor Tool, LLC’s, infringement of the ‘313
12 Patent, but in no event less than a reasonable royalty for the use made of the
13 patented invention by Defendant, Armor Tool, LLC, together with all
14 recoverable pre-judgment and post-judgment interest and costs, pursuant to 35
15 U.S.C. § 284;
16 C. Increase all damages Defendant, Armor Tool, LLC, is ordered to
17 pay to Plaintiff, Kreg Enterprises, Inc., up to three times the amount found or
18 assessed by the Court, pursuant to 35 U.S.C. § 284;
19 D. Order Defendant, Armor Tool, LLC, to pay to Plaintiff, Kreg
20 Enterprises, Inc., all attorney fees incurred by Plaintiff, Kreg Enterprises, Inc.,
21 in relation to this lawsuit and Defendant, Armor Tool, LLC’s, infringement of
22 the ‘313 Patent, pursuant to 35 U.S.C. § 285; and
23 E. Order all such other and further relief as the Court deems just
24 under the circumstances.
25 On the Second Cause of Action:
26 A. Temporarily and permanently enjoin Defendant, Armor Tool,
27 LLC, and all persons in active concert or participation with it, from further acts
28 of infringement of the ‘D803 Patent, pursuant to 35 U.S.C. § 283;

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COMPLAINT
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1 B. Order Defendant, Armor Tool, LLC, to pay to Plaintiff, Kreg


2 Enterprises, Inc., all damages adequate to compensate Plaintiff, Kreg
3 Enterprises, Inc., for Defendant, Armor Tool, LLC’s, infringement of the
4 ‘D803 Patent, but in no event less than a reasonable royalty for the use made of
5 the patented invention by Defendant, Armor Tool, LLC, together with all
6 recoverable pre-judgment and post-judgment interest and costs, pursuant to 35
7 U.S.C. § 284;
8 C. Increase all damages Defendant, Armor Tool, LLC, is ordered to
9 pay to Plaintiff, Kreg Enterprises, Inc., up to three times the amount found or
10 assessed by the Court, pursuant to 35 U.S.C. § 284;
11 D. Order Defendant, Armor Tool, LLC, to pay to Plaintiff, Kreg
12 Enterprises, Inc., all attorney fees incurred by Plaintiff, Kreg Enterprises, Inc.,
13 in relation to this lawsuit and Defendant, Armor Tool, LLC’s, infringement of
14 the ‘D803 Patent, pursuant to 35 U.S.C. § 285; and
15 E. Order all such other and further relief as the Court deems just
16 under the circumstances.
17 On the Third Cause of Action:
18 A. Temporarily and permanently enjoin Defendant, Armor Tool,
19 LLC, and all persons in active concert or participation with it, from further acts
20 of unfair competition / trade dress infringement, pursuant to 15 U.S.C. § 1116;
21 B. Order Defendant, Armor Tool, LLC, to pay to Plaintiff, Kreg
22 Enterprises, Inc., all damages adequate to compensate Plaintiff, Kreg
23 Enterprises, Inc., for Defendant, Armor Tool, LLC’s, unfair competition and
24 trade dress infringement, including, without limitation, recovery of all profits
25 made by Defendant, Armor Tool, LLC, compensation for all damages
26 sustained by Plaintiff, Kreg Enterprises, Inc., and the costs of this action,
27 pursuant to 15 U.S.C. § 1117(a);
28

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Case 3:19-cv-01125-BAS-WVG Document 1 Filed 06/17/19 PageID.36 Page 36 of 37

1 C. Increase all damages Defendant, Armor Tool, LLC, is ordered to


2 pay to Plaintiff, Kreg Enterprises, Inc., up to three times the amount found or
3 assessed by the Court, pursuant to 15 U.S.C. § 1117(a);
4 D. Order Defendant, Armor Tool, LLC, to pay to Plaintiff, Kreg
5 Enterprises, Inc., all attorney fees incurred by Plaintiff, Kreg Enterprises, Inc.,
6 in relation to this lawsuit and Defendant, Armor Tool, LLC’s, unfair
7 competition and trade dress infringement, pursuant to 15 U.S.C. § 1117(a); and
8 E. Order all such other and further relief as the Court deems just
9 under the circumstances.
10 On the Fourth Cause of Action:
11 A. Temporarily and permanently enjoin Defendant, Armor Tool,
12 LLC, and all persons in active concert or participation with it, from further acts
13 of unfair competition / trade dress infringement, pursuant to 15 U.S.C. § 1116;
14 B. Order Defendant, Armor Tool, LLC, to pay to Plaintiff, Kreg
15 Enterprises, Inc., all damages adequate to compensate Plaintiff, Kreg
16 Enterprises, Inc., for Defendant, Armor Tool, LLC’s, unfair competition and
17 trade dress infringement, including, without limitation, recovery of all profits
18 made by Defendant, Armor Tool, LLC, compensation for all damages
19 sustained by Plaintiff, Kreg Enterprises, Inc., and the costs of this action,
20 pursuant to 15 U.S.C. § 1117(a);
21 C. Increase all damages Defendant, Armor Tool, LLC, is ordered to
22 pay to Plaintiff, Kreg Enterprises, Inc., up to three times the amount found or
23 assessed by the Court, pursuant to 15 U.S.C. § 1117(a);
24 D. Order Defendant, Armor Tool, LLC, to pay to Plaintiff, Kreg
25 Enterprises, Inc., all attorney fees incurred by Plaintiff, Kreg Enterprises, Inc.,
26 in relation to this lawsuit and Defendant, Armor Tool, LLC’s, unfair
27 competition and trade dress infringement, pursuant to 15 U.S.C. § 1117(a); and
28

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Case 3:19-cv-01125-BAS-WVG Document 1 Filed 06/17/19 PageID.37 Page 37 of 37

1 E. Order all such other and further relief as the Court deems just
2 under the circumstances.
3 DEMAND FOR JURY TRIAL
4 Plaintiff, Kreg Enterprises, Inc., hereby demands a trial by jury on all issues
5 raised herein that are triable to a jury under applicable law.

6
Respectfully submitted,
7
Dated: June 17, 2019 CALDARELLI HEJMANOWSKI PAGE & LEER LLP
8

9
By:
10 Ben West
David Lichtenstein
11 Counsel for KREG ENTERPRISES, INC.
12

13

14

15

16

17

18

19
20

21

22

23

24

25

26
27

28

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COMPLAINT