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UNITED STATES DISTRICT COURT


EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

Haag Engineering Co. § Case No. _____________________


§
Plaintiff, § COMPLAINT FOR DAMAGES AND
§ INJUNCTIVE RELIEF FOR:
v. §
§ (1) COPYRIGHT INFRINGEMENT
Advanced-Wholesale LLC d/b/a Gard § UNDER 17 U.S.C. § 501, ET SEQ.;
Inspecting and Nik Newgard, § (2) TRADE DRESS INFRINGEMENT
§ IN VIOLATION OF 15 U.S.C.
Defendants. § §1114(1);
§ (3) TRADE DRESS INFRINGEMENT
§ IN VIOLATION OF 15 U.S.C.
§ §1125(a);
§ (4) TRADEMARK INFRINGEMENT
§ IN VIOLATION OF 15 U.S.C.
§ §1125(a);
§ (5) UNFAIR COMPETITION AND
§ FALSE DESIGNATION OF
§ ORIGIN IN VIOLATION OF 15
§ U.S.C. §1125(a);
§ (6) COMMON LAW TRADE DRESS
§ INFRINGEMENT;
§ (7) COMMON LAW TRADEMARK
§ INFRINGEMENT;
§ (8) COMMON LAW UNFAIR
§ COMPETITION;
§ (9) COMMON LAW
§ MISAPPROPRIATION; AND
§ (10) UNJUST ENRICHMENT.
§
§ Jury Trial Demanded

COMPLAINT

Plaintiff, Haag Engineering Co. (“Haag”), for its complaint against Advanced-

Wholesale LLC d/b/a Gard Inspecting (“Advanced-Wholesale”) and Nik Newgard

(“Newgard”), (Advanced-Wholesale and Newgard are collectively “Gard”), alleges as

follows:

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The Parties

1. Haag is a corporation organized and existing under the laws of the State of

Texas with a principal place of business at 1410 Lakeside Parkway, Suite 100, Flower

Mound, Texas 75028.

2. On information and belief, Advanced-Wholesale is a limited liability company

organized and existing under the laws of the State of Wisconsin with a principal place of

business at 424 Pheasant Court, Deerfield, Wisconsin 53531-9498.

3. On information and belief, Newgard is an individual residing at 424 Pheasant

Court, Deerfield, Wisconsin 53531-9498.

Jurisdiction and Venue

4. This is a complaint for damages and injunctive relief based on Gard’s

measuring apparatuses and includes multiple grounds for relief including copyright

infringement, trade dress infringement, unfair competition and false designation of origin,

misappropriation, and unjust enrichment. This complaint arises under the U.S. Copyright Act

17 U.S.C. § 101, et seq. (“the Copyright Act”); the Texas Business & Commerce Code; the

Trademark Act of 1946, 15 U.S.C. § 1051, et seq. (“the Lanham Act”); federal common law;

and state common law, including the law of Texas.

5. This Court has subject matter jurisdiction over this action pursuant to at least

15 U.S.C. § 1121(a) and 28 U.S.C. §§ 1331, 1338(a) & (b), and 1367(a).

6. This Court has personal jurisdiction over Gard because, inter alia, Gard is

purposefully and intentionally availing itself of the privileges of doing business in the State of

Texas, including in this District. Among other things, (i) Gard has advertised, marketed,

promoted, offered for sale, sold, distributed, manufactured, and/or imported, and continues to

advertise, market, promote, offer for sale, sell, distribute, manufacture, and/or import,

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infringing products to customers and/or potential customers, including in this District, at least

through Gard’s principal website, www.advancedwholesaleus.com, and through Amazon.com,

Inc.’s principal website, www.amazon.com, (ii) from February 2015 to May 2018 Newgard

was a Haag Certified Inspector availing himself of education services and certification offered

by Haag, and based in this District, under The Haag Certified Roof Inspector (Commercial or

Residential) Program, (iii) On or about May 2018, Gard contacted Haag in this District and

Gard ordered fifty (50) Haag Shingle Gauges from Haag in this District, (iv) Gard’s tortious

acts giving rise to this lawsuit and harm to Haag have occurred and are occurring in the State

of Texas, including in this District, (v) on information and belief, Gard acted with knowledge

that their unauthorized use of Haag’s rights would cause harm to Haag in the State of Texas

and in this District, and (vi) Gard’s customers and/or potential customers reside in the State of

Texas, including in this District.

7. Venue is proper in this District pursuant to at least 28 U.S.C. §§ 1391(a)-(d).

Venue is also appropriate in this district pursuant to 28 U.S.C. § 1400(a) because this case

asserts claims relating to the protection of copyrighted works.

General Allegations – Haag’s Intellectual Property

8. Haag is a multi-faceted company which performs forensic engineering

throughout the world in the fields of civil, structural, architectural, electrical, mechanical

engineering. Haag’s affiliate operates a state-of-the-art Research/Testing laboratory which

specializes in materials testing. Another Haag affiliate for education allows its engineers to

share their scientifically-based approach to damage assessment through its publications and

tools, and seminars. Haag also provides its customers with the most critical phase after a

loss—the onsite damage assessment. Haag services the legal industry, the insurance industry,

corporations, manufacturers, private companies, and individuals.

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9. As part of its educational programs, Haag owns and operates The

Haag Certified Roof Inspector (Commercial or Residential) Programs that assist inspectors

to accurately inspect roofs for damage, and correctly evaluate that damage. Haag expert

engineers teach Haag clients scientifically-based damage evaluation techniques. Being

“Haag Certified” lends credibility to findings, and helps its clients support their conclusions.

10. Haag was started in 1924 and Haag’s growth results directly from its long-

standing commitment to quality while expanding technical knowledge and services. Haag is

proud to continue that tradition today.

11. Haag’s commitment to scientifically-based damage assessment approaches

created the Haag Shingle Gauge, which measures the thickness of a shingle and based on

analyses made by Haag, correlates that thickness to a warranty level. For more than fifteen

(15) years, the Haag Shingle Gauge has been the industry leader and the unique product

configuration has become distinctive in the industry and synonymous with Haag.

12. Haag’s commitment to scientifically-based damage assessment approaches

also created the Haag Panel and Membrane Gauge, which estimate the thickness of steel and

aluminum panels (inclusive of protective coatings) and single-ply membranes. For more than

four (4) years, the Haag Panel and Membrane Gauge has been the industry leader and the

unique product configuration has become distinctive in the industry and synonymous with

Haag.

13. The designs of the Haag Shingle Gauge and Haag Panel and Membrane Gauge

are distinctive and non-functional and identify to consumers that the origin of the Haag

Shingle Gauge and Haag Panel and Membrane Gauge is Haag. As a result of at least Haag’s

continuous and exclusive use of the Haag Shingle Gauge and Haag Panel and Membrane

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Gauge, Haag’s marketing, advertising, and sales of the Haag Shingle Gauge and Haag Panel

and Membrane Gauge, and the highly valuable goodwill and substantial secondary meaning

acquired as a result, Haag owns trade dress rights in the designs and appearances of the Haag

Shingle Gauge and Haag Panel and Membrane Gauge, which consumers have come to

uniquely associate with Haag.

14. Exemplary images of the Haag Shingle Gauge are shown below:

15. Haag has trade dress rights in the overall look, design, and appearance of the

Haag Shingle Gauge, which includes the design and appearance of a configuration of a

manually-operated shingle gauge hand tool comprising a curved rectangular-shaped body

having an upper end tapered to form a U-shape and a lower end intersected by a slot

extending upwards toward the upper end for sliding or inserting a shingle in the Haag Shingle

Gauge; the design and appearance of the upper end of the tool having a small round hole of

the Haag Shingle Gauge; and the relationship of these features to each other and to other

features.

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16. For the Haag Shingle Gauge, Haag holds U.S. Trademark Registration No.

4,159,249, on the Supplemental Register and registered on June 12, 2012 for trade dress in

measuring apparatus, namely, shingle gauges. Please see Exhibit A.

17. For the Haag Shingle Gauge, Haag holds U.S. Trademark Registration No.

5,407,037, on the Principal Register and registered on February 20, 2018 for trade dress in

measuring apparatus, namely, shingle gauges. Please see Exhibit B.

18. Haag, is the exclusive owner of the copyright protected text and technical

drawing entitled “Shingle Gauge,” which is a copyright related to the Haag Shingle Gauge.

Haag is the owner of all rights, title and interest in Shingle Gauge which is registered with the

U.S. Copyright Office as Registration TX 7-495-344. Please see Exhibit C.

19. Exemplary images of the Haag Panel and Membrane Gauge are shown below:

20. Haag has trade dress rights in the overall look, design, and appearance of the

Haag Panel and Membrane Gauge, which includes the design and appearance of a

configuration of a manually-operated panel and membrane gauge hand tool comprising a body

having an upper edge intersected by slots for sliding or inserting a panel or membrane; the

design and appearance of the body including a lower curved end intersected by slots for

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sliding or inserting a panel or membrane; and the relationship of these features to each other

and to other features.

21. For the Haag Panel and Membrane Gauge, Haag holds U.S. Trademark

Application Serial No. 87/911,491, filed on May 8, 2018, for trade dress in measuring

apparatus, namely, steel and aluminum panel and membrane gauges. Please see Exhibit D.

22. Haag, is the exclusive owner of the copyright protected text and technical

drawing entitled “Panel and Membrane Gauge,” which is a copyright related to the Haag

Panel and Membrane Gauge. Haag is the owner of all rights, title and interest in Panel and

Membrane Gauge, which is registered with the U.S. Copyright Office as Registration TX 8-

529-646. Please see Exhibit E.

23. As a result of Haag’s exclusive, continuous, and substantial use, advertising,

and sales of shingle gauge and panel and membrane gauge products bearing Haag’s trade

dress and the publicity and attention that has been paid to Haag’s trade dress, Haag’s trade

dress in its Haag Shingle Gauge and its Haag Panel and Membrane Gauge each have acquired

valuable goodwill and substantial secondary meaning in the marketplace, as consumers have

come to uniquely associate Haag’s trade dress as source identifiers of Haag.

24. Haag also has used the trademark “4/09” throughout the United States and the

State of Texas in connection with its shingle gauge. Haag has used this trademark throughout

the United States and the State of Texas, including with advertising and promoting the Haag

Shingle Gauge. Haag has sold nearly one hundred thousand (100,000) units of the Haag

Shingle Gauge bearing the “4/09” trademark throughout the United States in the last ten (10)

years.

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25. In view of Haag’s extensive and continuous use of the “4/09” mark consumers

have come to associate “4/09” as a source identifier of Haag, and Haag owns trademark rights

in the mark.

General Allegations – Gard’s Unlawful Activities

26. Gard has purposefully advertised, marketed, promoted, offered for sale, sold,

distributed, manufactured, and/or imported, and continues to advertise, market, promote, offer

for sale, sell, distribute, manufacture, and/or import products, that violate Haag’s rights,

including the rights protected by Haag's intellectual property. Gard’s infringing products are

intentionally confusingly, similar imitations of Haag’s products and are in the same size as

Haag’s products. Gard’s actions have all been without the authorization of Haag.

27. Exemplary images of Gard’s infringing products are shown below:

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28. Exemplary images of Gard’s infringing product promotional materials are

shown below:

Exhibit F.

29. As a result of Gard’s activities related to the infringing products, there is a

likelihood of confusion between Gard and its products on the one hand, and Haag and its

products on the other hand.

30. Haag used its trade dress, trademarks, and copyright-protected work

extensively and continuously before Gard began advertising, promoting, offering to sell,

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selling, distributing, manufacturing, and/or importing its infringing products. Moreover,

Haag’s trade dress and trademarks acquired secondary meaning in the United States and in the

State of Texas generally and in geographic areas in Texas before Gard commenced its

unlawful use of Haag’s trade dress and trademarks.

31. On or about May 2018, Haag learned of Gard’s infringing activities and on

May 10, 2018, Haag, through its counsel, sent a demand letter to Gard. Please see Exhibit G.

32. On or about June 2018, Gard, through its counsel, represented to Haag that the

infringing activities had ceased.

33. On June 20, 2018, Gard, through its counsel, represented to Haag:

Thank you for outlining Haag’s demands to the possible recertification for Nik
Newgard. In the interest of clarity, the products identified in your May 10,
2018 letter were sold to customers by Advanced-Wholesale LLC d/b/a Gard
Inspecting and the now revoked certification with Haag was for Nik Newgard
individually.

We reviewed Haag’s proposal with our client, and it was carefully considered.
In view of the minimal sales made, it is not practical for Advanced-Wholesale
LLC to comply with Haag’s onerous proposed requirements for recertification
of Nick Newgard, and it will not be pursuing this avenue. As you know, the
products identified in the May 10 letter have been removed from all
websites and store fronts owned or controlled by our client, and it will not
resume such sales. Given the minimal sales actually made, these prompt
actions and commitment should be more than enough to resolve the matter.
Our client is disappointed that Haag took the aggressive actions it did as the
matter could have easily been resolved through informal email or telephone
communications.

Emphasis added. Please see Exhibit I.

34. Despite the terms and conditions of the May 10, 2018 letter from Haag to

Gard, and despite Gard’s representations of June 10, 2018, Gard has purposefully resumed

and has advertised, marketed, promoted, offered for sale, sold, distributed, manufactured,

and/or imported, and continues to advertise, market, promote, offer for sale, sell, distribute,

manufacture, and/or import products, that violate Haag’s rights, including the rights

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protected by Haag’s intellectual property, including copyright, trade dress, and trademark.

Gard’s infringing products are confusingly similar imitations of Haag’s products and are in

the same size as Haag’s products. Gard’s infringing promotional materials are copies of

Haag’s copyright-protected work. Gard’s actions have all been without the authorization of

Haag.

35. As discussed above and as set forth in the counts below, Gard’s actions are

unfair and unlawful. Gard’s actions have caused Haag to hire the undersigned counsel to

prosecute its infringement claims and agreed to pay counsel a reasonable fee for services

rendered. Gard is required to pay for Haag’s attorney’s fees and costs of court as a result of

its willful conduct.

Count I:
Copyright Infringement under 17 U.S.C. § 501, et seq.

36. Haag realleges and incorporates the allegations set forth in paragraphs 1

through 35 as though fully set forth herein.

37. Based on the activities described above, including, for example, copying,

reproducing, making, displaying, distributing, using and/or preparing derivative works of

Haag’s registered copyright—and in doing so to help advertise, promote, offer for sale, sell,

distribute, manufacture, and/or import its infringing products—Gard infringed on Haag’s

Copyright Panel and Membrane Gauge, which is registered with the U.S. Copyright Office as

Registration TX 8-529-6464, in violation of 17 U.S.C. § 501, et seq. by copying and posting

an infringing imitation of Haag’s Registered Work at Amazon.com, Inc.’s principal website,

www.amazon.com without Haag’s authorization to do so.

38. On information and belief, Gard’s use of Haag’s copyright and/or colorable

imitations thereof has been intentional, willful, and malicious. Gard’s bad faith is evidenced

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at least by the similarity of the infringing products to Haag’s copyright and by Gard’s

continuing disregard for Haag’s rights, despite Gard’s representations to the contrary.

39. Gard’s unlawful use of Haag’s registered copyright has diminished the value of

the original work by diluting the market and destroying the distinctiveness of the original

work and its identity as being Haag’s exclusive property.

40. Haag is entitled to recover from Gard the damages Haag has sustained as a

result of these wrongful acts. Haag is further entitled to recover from Gard any gains, profits,

or advantages Gard has obtained as a result of these wrongful acts.

41. Haag is entitled to recover from Gard statutory damages for each of these past

and/or continuing willful violations of Haag’s Registered Work. Haag is further entitled to

recover from Defendant costs and reasonable attorneys’ fees.

Count II:
Trade Dress Infringement under § 32(1) of the Lanham Act, 15 U.S.C. § 1114(1)

42. Haag realleges and incorporates the allegations set forth in paragraphs 1

through 41 as though fully set forth herein.

43. Based on the activities described above, including, for example, Gard using

Haag’s federally registered trademarks, including at least the trademarks protected by the ’249

Registration and the ’037 Registration, including through counterfeits, reproductions, copies,

and/or colorable imitations thereof, in connection with advertising, promoting, offering for

sale, selling, distributing, manufacturing, and/or importing the infringing products, Gard has

infringed Haag’s registered trademarks under § 32(1) of the Lanham Act, 15 U.S.C.

§ 1114(1). Gard’s use of Haag’s registered trademarks, including through counterfeits,

reproductions, copies, and/or colorable imitations thereof, is likely to cause confusion, or to

cause mistake, or to deceive.

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44. Gard’s use of Haag’s registered trademarks, including through counterfeits,

reproductions, copies, and/or colorable imitations thereof, has caused and, unless enjoined,

will continue to cause substantial and irreparable injury to Haag for which Haag has no

adequate remedy at law, including at least substantial and irreparable injury to the goodwill

and reputation for quality associated with Haag’s registered trademarks, Haag’s products, and

Haag.

45. On information and belief, Gard’s use of Haag’s registered trademarks,

through counterfeits, reproductions, copies, and/or colorable imitations thereof, has been

intentional, willful, and malicious. Gard’s bad faith is evidenced at least by its unlawful use

of Haag’s Trademarks in an effort to sell the infringing products, and by Gard’s continuing

disregard for Haag’s rights.

46. Haag is entitled to injunctive relief, and Haag is entitled to recover at least

Gard’s profits, Haag’s actual damages, enhanced damages, costs, and reasonable attorney fees

under at least 15 U.S.C. §§ 1114(1), 1116, and 1117.

Count III:
Trade Dress Infringement under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)

47. Haag realleges and incorporates the allegations set forth in paragraphs 1

through 46 as though fully set forth herein.

48. Gard’s advertisements, promotions, offers to sell, sales, distribution,

manufacture, and/or importing of the infringing products violate § 43(a) of the Lanham Act,

15 U.S.C. § 1125(a), by infringing Haag’s trade dress. Gard’s use of Haag’s trade dress

and/or colorable imitations thereof is likely to cause confusion, mistake, or deception as to the

affiliation, connection, and/or association of Gard with Haag and as to the origin, sponsorship,

and/or approval of the infringing products, at least by creating the false and misleading

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impression that the infringing products are manufactured by, authorized by, or otherwise

associated with Haag.

49. Haag’s trade dress is entitled to protection under the Lanham Act. Haag’s

trade dress includes unique, distinctive, and non-functional designs. Haag has extensively and

continuously promoted and used its trade dress in the United States. Through that extensive

and continuous use, Haag’s trade dress has become a well-known indicator of the origin and

quality of Haag’s products. Haag’s trade dress has also acquired substantial secondary

meaning in the marketplace. Moreover, Haag’s trade dress acquired this secondary meaning

before Gard commenced its unlawful use of Haag’s trade dress in connection with the

infringing products.

50. Gard’s use of Haag’s trade dress and/or colorable imitations thereof has caused

and, unless enjoined, will continue to cause substantial and irreparable injury to Haag for

which Haag has no adequate remedy at law, including at least substantial and irreparable

injury to the goodwill and reputation for quality associated with Haag’s trade dress, Haag’s

products, and Haag.

51. On information and belief, Gard’s use of Haag’s trade dress and/or colorable

imitations thereof has been intentional, willful, and malicious. Gard’s bad faith is evidenced

at least by the similarity of the infringing products to Haag’s trade dress and by Gard’s

continuing disregard for Haag’s rights, despite Gard’s representations to the contrary.

52. Haag is entitled to injunctive relief, and Haag is entitled to recover at least

Gard’s profits, Haag’s actual damages, enhanced damages, costs, and reasonable attorney fees

under at least 15 U.S.C. §§ l 125(a), 1116, and 1117.

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Count IV:
Trademark Infringement in Violation of 15 U.S.C. § 1125(a)

53. Haag realleges and incorporates the allegations set forth in paragraphs 1

through 52 as though fully set forth herein.

54. Based on the activities described above, including, for example, Gard’s use of

Haag’s trademark, including through counterfeits, reproductions, copies, and/or colorable

imitations thereof, Gard violates § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). Gard’s use

of Haag’s trademark, including through counterfeits, reproductions, copies, and/or colorable

imitations thereof is likely to cause confusion, mistake, or deception as to the affiliation,

connection, and/or association of Gard with Haag and as to the origin, sponsorship, and/or

approval of the infringing products, at least by creating the false and misleading impression

that the infringing products are manufactured by, authorized by, or otherwise associated with

Haag.

55. Haag’s trademarks are entitled to protection under the Lanham Act. Haag’s

trademark is inherently distinctive. Haag has extensively and continuously promoted and

used its trademarks in the United States. Through that extensive and continuous use, Haag’s

trademark has become a well-known indicator of the origin and quality of Haag’s products.

Haag’s trademark has also acquired substantial secondary meaning in the marketplace.

Moreover, Haag’s trademark acquired this secondary meaning before Gard commenced their

unlawful use of Haag’s trademark in connection with the infringing products.

56. Gard’s use of Haag’s trademark, including through counterfeits, reproductions,

copies, and/or colorable imitations thereof has caused and, unless enjoined, will continue to

cause substantial and irreparable injury to Haag for which Haag has no adequate remedy at

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law, including at least substantial and irreparable injury to the goodwill and reputation for

quality associated with Haag’s trademark, Haag’s products, and Haag.

57. On information and belief, Gard’s use of Haag’s trademark, including through

counterfeits, reproductions, copies, and/or colorable imitations thereof, has been intentional,

willful, and malicious. Gard’s bad faith is evidenced at least by Gard’s unlawful use of

Haag’s Trademarks to sell the Accused Products and infringing products and by Gard’s

continuing disregard for Haag’s rights, despite Gard’s representations to the contrary.

58. Haag is entitled to injunctive relief, and Haag is entitled to recover at least

Gard’s profits, Haag’s actual damages, enhanced damages, costs, and reasonable attorney fees

under at least 15 U.S.C. §§ 1125(a), 1116, and 1117.

Count V:
Unfair Competition and False Designation of Origin
under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)

59. Haag realleges and incorporates the allegations set forth in paragraphs 1

through 58 as though fully set forth herein.

60. Gard’s advertisements, marketing, promotions, offers to sell, sales,

distribution, manufacture, and/or importing of the infringing products, in direct competition

with Haag, violate § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) and constitute unfair

competition and false designation of origin, at least because Gard has obtained an unfair

advantage as compared to Haag through Gard’s use of Haag’s trade dress and trademark and

because such use is likely to cause consumer confusion as to the origin, sponsorship, and/or

affiliation of Gard’s infringing products, at least by creating the false and misleading

impression that its infringing products are manufactured by, authorized by, or otherwise

associated with Haag.

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61. Gard’s advertisements, marketing, promotions, offers to sell, sales,

distribution, manufacture, and/or importing of the infringing products, in direct competition

with Haag, violate § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) and constitute unfair

competition and false and/or misleading advertising, at least because Gard has obtained an

unfair advantage as compared to Haag through Gard’s use of Haag’s trade dress and

trademark and because such use is likely to mislead consumers, at least by creating the false

and misleading impression that its infringing measuring apparatus products are based on

analyses that correlates that thickness to a warranty level, when on information and belief,

Gard’s infringing measuring apparatus products do not.

62. Haag’s trade dress and trademark are entitled to protection under the Lanham

Act. Haag’s trade dress includes unique, distinctive, and non-functional designs. Haag has

extensively and continuously promoted and used its trade dress and trademark in the United

States. Through that extensive and continuous use, Haag’s trade dress and trademark has

become a well-known indicator of the origin and quality of Haag’s products. Haag’s trade

dress and trademark has also acquired substantial secondary meaning in the marketplace.

Moreover, Haag’s trade dress and trademark acquired this secondary meaning before Gard

commenced its unlawful use of Haag’s trade dress in connection with the infringing products.

63. Gard’s use of Haag’s trade dress and trademark and/or colorable imitations

thereof has caused and, unless enjoined, will continue to cause substantial and irreparable

injury to Haag for which Haag has no adequate remedy at law, including at least substantial

and irreparable injury to the goodwill and reputation for quality associated with Haag’s trade

dress and trademark, Haag’s products, and Haag.

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64. On information and belief, Gard’s use of Haag’s trade dress and trademark

and/or colorable imitations thereof has been intentional, willful, and malicious. Gard’s bad

faith is evidenced at least by the similarity of the infringing products to Haag’s trade dress and

by Gard’s continuing disregard for Haag’s rights, despite Gard’s representations to the

contrary.

65. Haag is entitled to injunctive relief, and Haag is also entitled to recover at least

Gard’s profits, Haag’s actual damages, enhanced damages, costs, and reasonable attorney fees

under at least 15 U.S.C. §§ 1125(a), 1116, and 1117.

Count VI:
Common Law Trade Dress Infringement

66. Haag realleges and incorporates the allegations set forth in paragraphs 1

through 65 as though fully set forth herein.

67. Gard’s advertisements, marketing, promotions, offers to sell, sales,

distribution, manufacture, and/or importing of the infringing products, in direct competition

with Haag, constitute common law trade dress infringement, at least because Gard’s use of

Haag’s trade dress and/or colorable imitations thereof is likely to cause consumer confusion

as to the origin, sponsorship, and/or affiliation of its infringing products, at least by creating

the false and misleading impression that its infringing products are manufactured by,

authorized by, or otherwise associated with Haag.

68. Haag’s trade dress is entitled to protection under the common law. Haag’s

trade dress includes unique, distinctive, and non-functional designs. Haag has extensively and

continuously promoted and used its trade dress in the United States and the State of Texas.

Through that extensive and continuous use, Haag’s trade dress has become a well-known

indicator of the origin and quality of Haag’s products. Haag’s trade dress has also acquired

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substantial secondary meaning in the marketplace. Moreover, Haag’s trade dress acquired

this a secondary meaning before Gard commenced its unlawful use of Haag’s trade dress in

connection with its infringing products.

69. Gard’s use of Haag’s trade dress and/or colorable imitations thereof has caused

and, unless enjoined, will continue to cause substantial and irreparable injury to Haag for

which Haag has no adequate remedy at law, including at least substantial and irreparable

injury to the goodwill and reputation for quality associated with Haag’s trade dress, Haag’s

products, and Haag.

70. On information and belief, Gard’s use of Haag’s trade dress and/or colorable

imitations thereof has been intentional, willful, and malicious. Gard’s bad faith is evidenced

at least by the similarity of its infringing products to Haag’s trade dress and Gard’s continuing

disregard for Haag’s rights, despite Gard’s representations to the contrary.

71. Haag is entitled to injunctive relief, and Haag is also entitled to recover at least

Haag’s damages, Gard’s profits, punitive damages, costs, and reasonable attorney fees.

Count VII:
Common Law Trademark Infringement

72. Haag realleges and incorporates the allegations set forth in paragraphs 1

through 71 as though fully set forth herein.

73. Gard’s activities described above, including, for example, Gard’s use of

Haag’s trademarks, including through counterfeits, reproductions, copies, and/or colorable

imitations thereof, in direct competition with Haag, constitute common law trademark

infringement, at least because Gard’s use of Haag’s trademarks including through

counterfeits, reproductions, copies, and/or colorable imitations thereof is likely to cause

consumer confusion as to the origin and/or sponsorship/affiliation of the infringing products,

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at least by creating the false and misleading impression that the infringing products are

manufactured by, authorized by, or otherwise associated with Haag.

74. Haag’s trademarks are entitled to protection under the common law. Haag has

extensively and continuously promoted and used its trademarks in the United States and the

State of Texas. Through that extensive and continuous use, Haag’s trademarks have become

well-known indicators of the origin and quality of Haag’s products. Haag’s trademarks have

also acquired substantial secondary meaning in the marketplace. Moreover, Haag’s

trademarks acquired this secondary meaning before Gard commenced their unlawful use of

Haag’s trademarks in connection with the infringing products.

75. Gard’s use of Haag’s trademarks, including through counterfeits,

reproductions, copies, and/or colorable imitations thereof has caused and, unless enjoined,

will continue to cause substantial and irreparable injury to Haag for which Haag has no

adequate remedy at law, including at least substantial and irreparable injury to the goodwill

and reputation for quality associated with Haag’s trademarks, Haag’s products, and Haag.

76. On information and belief, Gard’s use of Haag’s trademarks, including through

counterfeits, reproductions, copies, and/or colorable imitations thereof has been intentional,

willful, and malicious. Gard’s bad faith is evidenced at least by Gard’s unlawful use of Haag’s

trademarks to sell the infringing products and by Gard’s continuing disregard for Haag’s

rights.

77. Haag is entitled to injunctive relief, and Haag is also entitled to recover at least

Haag’s damages, Gard’s profits, punitive damages, costs, and reasonable attorney fees.

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Count VIII:
Common Law Unfair Competition

78. Haag realleges and incorporates the allegations set forth in paragraphs 1

through 77 as though fully set forth herein.

79. Gard’s advertisements, marketing, promotions, offers to sell, sales,

distribution, manufacture, and/or importing of the infringing products, in direct competition

with Haag, constitute common law unfair competition, at least by palming off/passing off of

Gard’s goods, by simulating Haag’s trade dress and trademarks in an intentional and

calculated manner that is likely to cause consumer confusion as to origin, sponsorship, and/or

affiliation of Gard’s infringing products, at least by creating the false and misleading

impression that its infringing products are manufactured by, authorized by, or otherwise

associated with Haag. Gard has also interfered with Haag’s business.

80. Gard’s advertisements, marketing, promotions, offers to sell, sales,

distribution, manufacture, and/or importing of the infringing products, in direct competition

with Haag, constitute common law unfair competition, at least by palming off/passing off of

Gard’s goods, by simulating Haag’s trade dress and trademarks in an intentional and

calculated manner that is likely to cause consumer confusion as to origin, sponsorship, and/or

affiliation of Gard’s infringing measuring apparatus products, at least by creating the false and

misleading impression that its infringing measuring apparatus products are based on analyses

that correlates that thickness to a warranty level, when on information and belief, Gard’s

infringing measuring apparatus products do not.

81. Haag’s trade dress and trademark are entitled to protection under the common

law. Haag’s trade dress includes unique, distinctive, and non-functional designs. Haag has

extensively and continuously promoted and used Haag’s trade dress and trademark for years

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in the United States and the State of Texas. Through that extensive and continuous use,

Haag’s trade dress and trademark have become well­known indicators of the origin and

quality of Haag’s products. Haag’s trade dress and trademark have also acquired substantial

secondary meaning in the marketplace. Moreover, Haag’s trade dress and trademark acquired

this secondary meaning before Gard commenced its unlawful use of Haag’s trade dress and

trademark in connection with its infringing products.

82. Gard’s use of Haag’s trade dress and trademark and/or colorable imitations

thereof has caused and, unless enjoined, will continue to cause substantial and irreparable

injury to Haag for which Haag has no adequate remedy at law, including at least substantial

and irreparable injury to the goodwill and reputation for quality associated with Haag’s trade

dress, Haag’s products, and Haag.

83. On information and belief, Gard’s use of Haag’s trade dress and/or colorable

imitations thereof has been intentional, willful, and malicious. Gard’s bad faith is evidenced

at least by the similarity of its infringing products to Haag’s trade dress and Gard’s continuing

disregard for Haag's rights, despite Gard’s representations to the contrary.

84. Haag is entitled to injunctive relief, and Haag is also entitled to recover at least

Haag’s damages, Gard’s profits, punitive damages, costs, and reasonable attorney fees.

Count IX:
Common Law Misappropriation

85. Haag realleges and incorporates the allegations set forth in paragraphs 1

through 84 as though fully set forth herein.

86. Gard’s advertisements, promotions, offers to sell, sales, distribution,

manufacture, and/or importing of the infringing products, in direct competition with Haag,

constitute common law misappropriation.

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87. Haag created the products covered by Haag’s trade dress and trademark

through extensive time, labor, effort, skill, and money. Gard has wrongfully used Haag’s

trade dress and trademark and/or colorable imitations thereof in competition with Haag and

gained a special advantage because Gard was not burdened with the expenses incurred by

Haag. Gard has commercially damaged Haag, at least by causing consumer confusion as to

origin, sponsorship, and/or affiliation of Gard’s infringing products, by creating the false and

misleading impression that their infringing products are manufactured by, authorized by, or

otherwise associated with Haag, and by taking away sales that Haag would have made.

88. Haag’s trade dress and trademark are entitled to protection under the common

law. Haag’s trade dress includes unique, distinctive, and non-functional designs. Haag has

extensively and continuously promoted and used Haag’s trade dress and trademark for years

in the United States and the State of Texas. Through that extensive and continuous use,

Haag’s trade dress and trademark have become well-known indicators of the origin and

quality of Haag’s products. Haag’s trade dress and trademark have also acquired substantial

secondary meaning in the marketplace. Moreover, Haag’s trade dress and trademark acquired

this secondary meaning before Gard commenced its unlawful use of Haag’s trade dress in

connection with its infringing products.

89. Gard’s use of Haag’s trade dress and trademark and/or colorable imitations

thereof has caused and, unless enjoined, will continue to cause substantial and irreparable

commercial injury to Haag for which Haag has no adequate remedy at law, including at least

substantial and irreparable injury to the goodwill and reputation for quality associated with

Haag’s trade dress and trademark, Haag’s products, and Haag. Moreover, as a result of its

misappropriation, Gard has profited and, unless such conduct is enjoined by this Court, will

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continue to profit by misappropriating the time, effort, and money that Haag invested in

establishing the reputation and goodwill associated with Haag’s trade dress, Haag’s

trademark, Haag’s products, and Haag.

90. Gard’s misappropriation of Haag’s trade dress and trademark and/or colorable

imitations thereof has been intentional, willful, and malicious. Gard’s bad faith is evidenced

at least by the similarity of its infringing products to Haag's trade dress and trademark

and Gard’s continuing disregard for Haag’s rights, despite Gard’s representations to the

contrary.

91. Haag is entitled to injunctive relief, and Haag is also entitled to recover at least

Haag’s damages, Gard’s profits, punitive damages, costs, and reasonable attorney fees.

Count X:
Unjust Enrichment

92. Haag realleges and incorporates the allegations set forth in paragraphs 1

through 91 as though fully set forth herein.

93. Gard’s advertisements, promotions, offers to sell, sales, distribution,

manufacture, and/or importing of its infringing products, in direct competition with Haag,

constitute unjust enrichment, at least because Gard has wrongfully obtained benefits at Haag’s

expense. Gard has also, inter alia, operated with an undue advantage.

94. Haag created the products covered by Haag’s trade dress, trademark and

copyright through extensive time, labor, effort, skill, and money. Gard has wrongfully used

and is wrongfully using Haag’s trade dress, Haag’s trademark, Haag’s copyright, and/or

colorable imitations thereof, in competition with Haag, and has gained and is gaining a

wrongful benefit by undue advantage through such use. Gard has not been burdened with the

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expenses incurred by Haag, yet Gard is obtaining the resulting benefits for its own business

and products.

95. Haag’s trade dress and trademark are entitled to protection under the common

law. Haag’s trade dress includes unique, distinctive, and non-functional designs. Haag has

extensively and continuously promoted and used Haag’s trade dress and trademark for years

in the United States and the State of Texas. Through that extensive and continuous use,

Haag’s trade dress and trademark have become well­known indicators of the origin and

quality of Haag’s products. Haag’s trade dress and trademark have also acquired substantial

secondary meaning in the marketplace. Moreover, Haag’s trade dress and trademark acquired

this secondary meaning before Gard commenced its unlawful use of Haag’s trade dress and

colorable imitations thereof in connection with its infringing products.

96. Haag’s copyright is entitled to protection. Gard’s unlawful use of Haag’s

registered works has diminished the value of the original work by diluting the market and

destroying the distinctiveness of the original work and its identity as being Haag’s exclusive

property.

97. Gard’s use of Haag’s trade dress, Haag’s trademark, Haag’s copyright, and/or

colorable imitations thereof has caused and, unless enjoined, will continue to cause substantial

and irreparable commercial injury to Haag for which Haag has no adequate remedy at law,

including at least substantial and irreparable injury to the goodwill and reputation for quality

associated with Haag’s trade dress, Haag’s trademark, Haag’s copyright, Haag’s products, and

Haag. Haag accumulated this goodwill and reputation through extensive time, labor, effort,

skill, and investment. Gard has wrongfully obtained and are wrongfully obtaining a benefit at

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Haag's expense by taking undue advantage and free-riding on Haag’s efforts and investments,

and enjoying the benefits of Haag’s hard-earned goodwill and reputation.

98. Gard’s unjust enrichment at Haag’s expense has been intentional, willful, and

malicious. Gard’s bad faith is evidenced at least by the similarity of its infringing products to

Haag’s trade dress and Gard’s continuing disregard for Haag’s rights.

99. Haag is entitled to injunctive relief, and Haag is also entitled to recover at least

Gard’s profits.

Demand for Jury Trial

Haag hereby demands a jury trial on all issues so triable.

Relief Sought

WHEREFORE, Plaintiff respectfully prays for:

1. Judgment that Advanced-Wholesale has (i) infringed Haag’s copyright

in violation of § 101, et seq. of Title 17 in the United States Code; (ii) infringed Haag’s trade

dress in violation of § 1114(1) of Title 15 in the United States Code; (iii) infringed Haag’s

trade dress in violation of § 1125(a) of Title 15 in the United States Code; (iv) infringed

Haag’s trademark in violation of § 1125(a) of Title 15 in the United States Code; (v) engaged

in unfair competition and false designation of origin in violation of § 1125(a) of Title 15

in the United States Code; (vi) violated Haag’s common law rights in Haag’s trade dress;

(vii) violated Haag’s common law rights in Haag’s trademark; (viii) engaged in common

law unfair competition; (ix) engaged in common law misappropriation; and (x) been

unjustly enriched at Haag’s expense, and that all of these wrongful activities by Gard were

willful;

2. An injunction against further infringement of Haag’s trade dress, Haag’s

trademark, Haag’s copyright, and further acts of unfair competition, misappropriation, and

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unjust enrichment by Gard, and each of its agents, employees, servants, attorneys, successors

and assigns, and all others in privity or acting in concert with any of them, including at least

from selling, offering to sell, distributing, manufacturing, importing, or advertising the

infringing products, or any other products that use a copy, reproduction, or colorable imitation

of Haag’s copyright and Haag’s trade dress, pursuant to at least 15 U.S.C. § 1116 and Tex.

Bus. & Com. Code § 16.104;

3. An Order directing Gard to recall all infringing products sold and/or distributed

and provide a full refund for all recalled infringing products;

4. An Order directing the destruction of (i) all infringing products, including all

recalled infringing products, (ii) any other products that use a copy, reproduction, or colorable

imitation of Haag’s copyright or Haag’s trade dress in Gard’s possession or control, (iii) all

plates, molds, and other means of making the infringing products in Gard’s possession,

custody, or control, and (iv) all advertising materials related to the infringing products in

Gard’s possession, custody, or control, including on the Internet, pursuant to at least 15

U.S.C. § 1118;

5. An Order directing Gard to publish on its website and any website through

which it has advertised or otherwise conducted e-commerce a public notice providing proper

attribution of Haag's copyright and Haag’s trade dress to Haag, and to provide a copy of this

notice to all customers, distributors, and/or others from whom the infringing products are

recalled;

6. An Order barring importation of the infringing products and/or colorable

imitations thereof into the United States, and barring entry of the infringing products and/or

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colorable imitations thereof into any customhouse of the United States, pursuant to at least 15

U.S.C. § 1125(b);

7. An award of Gard’s profits, Haag’s actual damages, enhanced damages, treble

damages and/or statutory damages, punitive damages, exemplary damages, costs,

prejudgment and post judgment interest, and reasonable attorney fees pursuant to at least 15

U.S.C. §§ 1114(1), 1125(a), 1125(c), 1116, and 1117; 17 U.S.C. §§ 504(b, c), 505, and 1203;

and Tex. Bus. & Com. Code § 16.104; and

8. Such other and further relief as this Court deems just and proper.

Dated: July ____, 2019 Respectfully submitted,

By:
James Sowder
Texas Bar No. 18863900
Stephen J. Huschka
Texas Bar No. 24097861
Thompson, Coe, Cousins & Irons, L.L.P.
700 N. Pearl Street, Twenty-Fifth Floor
Dallas, Texas 75201-2832
Telephone: (214) 871-8267
Facsimile: (214) 871-8209
E-Mail: jsowder@thompsoncoe.com
Shuschka@thompsoncoe.com

Scott T. Griggs
Texas Bar No. 24032254
Griggs Bergen LLP
12900 Preston Road, Suite 204
Dallas, Texas 75230
Telephone: (214) 653-2400
Facsimile: (214) 653-2401
E-Mail: scott@griggslaw.com
Attorneys for Plaintiff Haag Engineering Co.

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JS 44 (Rev 02/19) Case 4:19-cv-00575 Document 1-1 FiledSHEET
CIVIL COVER 07/31/19 Page 1 of 1 PageID #: 29
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. (SEEINSTRUCTIONS ON NEXTPAGE OF THIS FORM.)

I.(a) PLAINTIFFS DEFENDANTS


Haag Engineering Co.

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant
(EXCEPTIN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES,USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

(C) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (IfKnown)
Thompson, Coe, Cousins & Irons, L.L.P., 700 N. Pearl Street, 25th Fl,
Dallas, TX 75201; 214-871-8267 II Griggs Bergen LLP, 12900 Preston
Rd, Ste 204, Dallas, Texas 75230; 214-653-2400

II. BASIS OF JURISDICTION (Place an "X"in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Boxfor Plaintiff
( For Diversity Cases Only) and One Boxfor Defendant)
0 1 U.S. Government 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State 0 1 0 1 Incorporated or Principal Place 4 04
ofBusiness In This State

0 2 U.S. Government El 4 Diversity Citizen of Another State 0 2 0 2 Incorporated and Principal Place 0 5 X5
Defendant (Indicate Citizenship ofParties in Item III) of Business In Another State

Citizen or Subject of a 0 3 0 3 Foreign Nation 0 6 06


Foreign Country
IV. NATURE OF SUIT (Place an "X" in One Box Only) Click here for: Nature of Suit Code Descriptions.
}RIrEITIJIiI1PENALTI B .

0 110 Insurance PERSONAL INJURY PERSONAL INJURY 0 625 Drug Related Seizure 0 422 Appeal 28 USC 158 0 375 False Claims Act
0 120 Marine El 310 Airplane 0 365 Personal Injury - of Property 21 USC 881 0 423 Withdrawal El 376 Qui Tam (31 USC
0 130 Miller Act 0 315 Airplane Product Product Liability 0 690 Other 28 USC 157 3729(a))
0 140 Negotiable Instrument Liability 0 367 Health Care/ 0 400 State Reapportionment
El 150 Recovery of Overpayment 0 320 Assault, Libel & Pharmaceutical '' P OPER. ., MCI'S '0 410 Antitrust
& Enforcement of Judgment Slander Personal Injury 6 820 Copyrights 0 430 Banks and Banking
0 151 Medicare Act 0 330 Federal Employers' Product Liability 0 830 Patent El 450 Commerce
0 152 Recovery of Defaulted Liability El 368 Asbestos Personal 0 835 Patent - Abbreviated 0 460 Deportation
Student Loans 0 340 Marine Injury Product New Drug Application 0 470 Racketeer Influenced and
(Excludes Veterans) 0 345 Marine Product Liability 0 840 Trademark Corrupt Organizations
El 153 Recovery of Overpayment Liability PERSONAL PROPERTY 0 480 Consumer Credit
of Veteran's Benefits El 350 Motor Vehicle 0 370 Other Fraud 0 710 Fair Labor Standards 0 861 HIA (1395ff) El 485 Telephone Consumer
0 160 Stockholders' Suits 0 355 Motor Vehicle 0 371 Truth in Lending Act 0 862 Black Lung(923) Protection Act
0 190 Other Contract Product Liability 0 380 Other Personal 0 720 Labor/Management 0 863 DIWC/DIWW (405(g)) 0 490 Cable/Sat TV
0 195 Contract Product Liability El 360 Other Personal Property Damage Relations 0 864 SSID Title XVI 0 850 Securities/Commodities/
0 196 Franchise Injury 0 385 Property Damage 0 740 Railway Labor Act 0 865 RSI(405(g)) Exchange
0 362 Personal Injury - Product Liability 0 751 Family and Medical LI 890 Other Statutory Actions
Medical Malpractice Leave Act 0 891 Agricultural Acts
RIG • PRISONERF III 0 790 Other Labor Litigation FEDERAL TAX SUITS - CI 893 Environmental Matters
0 210 Land Condemnation 0 440 Other Civil Rights Habeas Corpus: 0 791 Employee Retirement 0 870 Taxes(U.S. Plaintiff 0 895 Freedom of Information
0 220 Foreclosure El 441 Voting 0 463 Alien Detainee Income Security Act or Defendant) Act
0 230 Rent Lease & Ejectment 0 442 Employment 0 510 Motions to Vacate 0 871 IRS--Third Party 0 896 Arbitration
0 240 Torts to Land 0 443 Housing/ Sentence 26 USC 7609 0 899 Administrative Procedure
0 245 Tort Product Liability Accommodations 0 530 General Act/Review or Appeal of
0 290 All Other Real Property 0 445 Amer w/Disabilities - 0 535 Death Penalty 1 IIGRATION € Agency Decision
Employment Other: 0 462 Naturalization Apphcation 0 950 Constitutionality of
El 446 Amer. w/Disabilities - 0 540 Mandamus & Other 0 465 Other Immigration State Statutes
Other 0 550 Civil Rights Actions
El 448 Education 0 555 Prison Condition
El 560 Civil Detainee -
Conditions of
Confinement

V. ORIGIN (Place an "X" in One Box Only)


>1( 1 Original CI 2 Removed from 0 3 Remanded from CI 4 Reinstated or CI 5 Transferred from CI 6 Multidistrict 0 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing(Do not citejurisdictional statutes unless diversity):
17 U.S.C. § 101; 15 U.S.C.§ 1051
VI. CAUSE OF ACTION Brief description of cause:
copyright and trade dress infringement, unfair competition, false designation of origin, misappropriation
VII. REQUESTED IN CI CHECK IF THIS IS A CLASS ACTION DEMAND S CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: X Yes ON°

VIII. RELATED CASE(S)


(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
07/31/2019
FOR OFFICE USE ONLY
l,e
RECEIPT # OUNT APPLYING IFP JUDGE MAG.JUDGE