Hard Metal Advantage v. Kennametal - Complaint

Case 6:20-cv-01702 Document 1 Filed 12/30/20 Page 1 of 12 PageID #: 1
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
HARD METAL ADVANTAGE, LLC, ) CIVIL ACTION NO. ________________

)
Plaintiff, )
VERSUS ) JUDGE ____________________________
)
KENNAMETAL INC. )
a Pennsylvania Corporation ) MAGISTRATE JUDGE _______________
)
Defendants. ) DEMAND FOR JURY TRIAL_________
)
******************************************************************************
VERIFIED COMPLAINT
NOW INTO COURT, through undersigned counsel, comes Plaintiff HARD METAL
ADVANTAGE, LLC (“Plaintiff” and/or “HARD METAL”) hereby pleads and alleges as
follows:
JURISDICTION AND VENUE
1. This is an action for willful patent infringement under the Patent Act of the United
States, including 35 U.S.C. § 271.
2. This action further arises under the Patent Laws of the United States, Title 35 of
the United States Code, and under the Trademark Act of 1946, Title 15 of the United States
Code. This Court has subject matter jurisdiction over this matter pursuant to 15 USC §1121
(actions arising under the Lanham Act), 28 USC §1331 (actions arising under the laws of the
United States), 28 USC §1338(a) (acts of Congress relating to patents), and 28 USC §1338(b)
(civil actions asserting a claim of unfair compensation). This Court further has supplemental
jurisdiction over any claims in this action that arise under state statutory and common law
pursuant to 28 U.S.C. § 1367 in that any such claims that may arise under state law claims are so
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related to the federal claims that they form part of the same case or controversy and derive from
a common nucleus of operative facts.
3. Venue over these claims is proper in this judicial district pursuant to 28 U.S.C. §§
1400(b) and 1391(b) and (c) because, among other reasons, Defendant Kennametal Inc.
(“Defendant” and/or “Kennametal”) has committed and/or contributed to acts of infringement in
this judicial district and has a regular and established place of business in this judicial district.
4. On information and belief, Defendant is subject to the Court’s specific and
general personal jurisdiction, including by and on account of its conducting business transactions
in Lafayette Parish and/or other locations in this judicial district, its direct sales and other
activities via its website, pursuant to due process and/or the Louisiana Long Arm Statute, and
due at least to its substantial business in this forum, including; (i) at least a portion of the
infringements alleged herein; and (ii) regularly doing or soliciting business, engaging in other
persistent courses of conduct, and/or deriving substantial revenue from sales of products and/or
services provided to persons in Lafayette Parish, Louisiana and in this judicial district.
THE PARTIES
5. Plaintiff HARD METAL is a limited liability company organized and existing
under the laws of the State of Louisiana.
6. Plaintiff is the sole owner of U.S. Patent No. D649,987 (“the ‘987 Patent”)
entitled “Carbide Chip” and U.S. Trademark Reg. No. 5,404,184 (“the ‘184 Trademark”) entitled
“Tungsten carbide chip inserts for use on mills and downhole drilling tools.”
7. Plaintiff is informed and believes, and on that basis alleges, that Defendant
Kennametal, is, and at all relevant times was, a corporation organized and existing under the
laws of the State of Pennsylvania, with its principal place of business at 525 William Penn Place,
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Suite 3300, Pittsburgh, PA 15219. Kennametal’s products and services include mills
incorporating six-sided hexagonal carbide chips and multi-sided cutting chips.
COUNT I
PATENT INFRINGEMENT (‘987 PATENT)
8. Plaintiff incorporates the allegations of paragraphs 1 through 7 as though fully set
forth herein.
9. Plaintiff HARD METAL is the sole and exclusive owner of the entire right, title
and interest in and to the ‘987 Patent, entitled “Carbide Chip” which was duly issued on
December 6, 2011. A copy of the ‘987 Patent is attached hereto as Exhibit “A.”
10. The ‘987 Patent is drawn to an ornamental design for a tungsten carbide chip
suitable for use on a variety of mills and other tools.
11. The patent application which matured into the ‘987 Patent was prepared and filed
with the United States Patent and Trademark Office on February 4, 2010 under the name of
Duane C. Dunnahoe, as inventor.
12. After search and examination of the subject patent application, the United States
Patent and Trademark Office allowed the subject application and issued the ‘987 Patent on
December 6, 2011.
13. Duane C. Dunnahoe assigned his interest in the ‘987 Patent to HARD METAL,
and HARD METAL is the owner by assignment of the ‘987 Patent.
14. As the sole and exclusive owner of the ‘987 Patent, Plaintiff HARD METAL has
the right to pursue all rights, remedies and or causes of action for any infringement thereof.
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15. Upon information and belief, Kennametal has been, and now is, directly
infringing the ‘987 Patent in the State of Louisiana, in this judicial district, and elsewhere in the
United States by, among other things, selling carbide chips which infringe the ‘987 Patent.
Photographs of such an infringing carbide chip are attached hereto as Exhibit “C.”
16. On information and belief, Defendant Kennametal has actual knowledge of the
‘987 Patent.
17. Defendant Kennametal’s infringement of the ‘987 Patent has been and continues
to be willful and deliberate. The deliberate and willful acts of Defendant makes this an
exceptional case pursuant to 35 U.S.C. § 285.
18. Plaintiff has been injured and damaged, and will continue to be injured and
damaged, by Defendant’s infringement of the ‘987 Patent. Defendant’s infringement has caused,
and will continue to cause, irreparable harm to Plaintiff unless and until enjoined by this
Honorable Court.
COUNT II
TRADEMARK/TRADE DRESS INFRINGEMENT (‘184 TRADEMARK)
19. Plaintiff re-alleges and incorporates by reference the allegations set forth in
paragraphs 1 through 18 of this Complaint.
20. Plaintiff HARD METAL is the sole and exclusive owner of the entire right, title
and interest in and to the ‘184 Trademark, entitled “Tungsten carbide chip inserts for use on
mills and downhole drilling tools” which was duly issued on February 20, 2018. A copy of the
Certificate of Registration for the ‘184 Trademark is attached hereto as Exhibit “B.”
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21. The ‘184 Trademark is drawn to trade dress for a tungsten carbide chip suitable
for use on a variety of mills and other tools.
22. The trademark application which matured into the ‘184 Trademark was prepared
and filed with the United States Patent and Trademark Office on February 3, 2016 under the
registrant HARD METAL.
23. After search and examination of the subject trademark application, the United
States Patent and Trademark Office issued registration of the ‘184 Trademark on February 20,
2018.
24. As the sole and exclusive owner of the ‘184 Trademark, Plaintiff HARD METAL
has the right to pursue all rights, remedies and or causes of action for any infringement thereof.
25. Plaintiff, long prior to the acts complained of herein, has been and is now engaged
in interstate commerce and/or the foreign commerce of the United States by virtue of the
ongoing sales of a wide and diverse line of tungsten carbide products, and other related products,
including tungsten carbide chips, mills and/or variations thereof (hereinafter “Infringed
Products”), and which are the subject of this litigation.
26. The Infringed Products have been sold in great numbers and continue to be
extensively sold and serviced by Plaintiff.
27. The appearance of the Infringed Products (hereinafter, the “Trade Dress”), more
particularly, the product appearance including the size, shape and/or sculptural configuration is a
protectable trade dress under §43(a) of the Lanham Act, which has been infringed by Defendant.
See, Exhibit “C” attached hereto and made a part hereof.
28. Plaintiff derives substantial benefits from selling products bearing the Trade
Dress, and the infringement by Defendant has impaired Plaintiff’s business.
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29. Plaintiff’s Infringed Products include distinctive non-functional elements which
are incorporated in Defendant’s Infringing Products.
30. Plaintiff has used and continues to use its distinctive Trade Dress and, by virtue of
widespread sales, the Trade Dress has come to indicate origin with Plaintiff, as further
recognized by the ‘184 Trademark. Plaintiff, by virtue of use of said trade dress covering its
goods, and through Plaintiff’s business and quality standards, has obtained a reputation of the
highest quality. Such reputation has given Plaintiff and the Infringed Products and other
products of plaintiff a pre-eminent position in the marketplace.
31. The design of the Infringed Products itself, namely their configuration, and the
‘184 Trademark is a protectable trade dress under §43(a) of the Lanham Act, which has been
infringed by Defendant and continues to be infringed on account of Defendant’s sale in
commerce of Defendant’s product.
32. Plaintiff has incurred expense and has devoted substantial resources to make the
Infringed Products famous and readily recognizable to consumers. Plaintiff’s investments and
efforts have been successful as the Trade Dress has become highly distinctive in the marketplace
and denotes to purchasers goods which originate with Plaintiff.
33. Upon information and belief, long after Plaintiff’s creation of the Infringed
Products, Defendant, with actual and/or constructive knowledge of Plaintiff’s Trade Dress,
without any authorization from Plaintiff, and in contravention of Plaintiff’s trade dress rights and
the ‘184 Trademark, adopted and used a product configuration for its Infringing Products
calculated to capitalize on the goodwill and reputation of Plaintiff’s Trade Dress. Defendant had
as its objective to mimic the distinctive elements of the Trade Dress as a means for unfairly
taking advantage of and profiting from the Infringed Products’ image and Plaintiff’s reputation
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in the marketplace and unfairly increasing the sale of Defendant’s copycat Infringing Products.
Defendant has distributed and continues to distribute in interstate commerce to consumers,
copycat goods bearing an infringing derivative version of the distinctive features and layout of
the Infringed Products’ Trade Dress for Defendant’s own commercial advantage. Further,
Defendant has marketed, and continues to market, to consumers, copycat goods bearing an
infringing derivative version of the distinctive features and layout of the Infringed Products’
Trade Dress for Defendant’s own commercial advantage.
34. Defendant has used and continues to use derivatives, and/or colorable imitations
of Plaintiff’s Trade Dress in direct competition with Plaintiff and the ‘184 Trademark.
Defendant has used and continues to use these infringing derivatives and/or colorable imitations
of Plaintiff’s Trade Dress in connection with sales, offering for sale or distribution, advertising
and promotion of goods in a manner that is likely to cause confusion or mistake or to deceive
purchasers as to the source of origin of such goods.
35. Defendant has deliberately misled and will continue to mislead purchasers, and
prospective purchasers, as well as the public at large, to believe, contrary to fact, that
Defendant’s goods are manufactured, marketed, sponsored or endorsed by, or affiliated with
Plaintiff. Defendant is unfairly competing with Plaintiff by trading on and disparaging Plaintiff’s
goodwill symbolized by its Trade Dress and the ‘184 Trademark.
36. As a direct and proximate result of these acts of unfair competition and trade dress
infringement, Plaintiff has sustained and will continue to sustain monetary damages and
irreparable injury to its business, goodwill, reputation and profits, in an amount not presently
known. Plaintiff is entitled to judgment for Defendant’s profits and any damages sustained by
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Plaintiffs in consequence of the deliberate nature of the infringement by Defendant in an amount
equaling three times said damages.
37. By reason of the acts of Defendant herein alleged, Plaintiff has been damaged,
and, unless restrained and enjoined Defendant has and will continue to deceive the public, and
otherwise will cause Plaintiff immediate and irreparable harm.
COUNT III
STATE (LOUISIANA) TRADEMARK INFRINGEMENT
39. Defendant’s unauthorized use of Plaintiff’s Trade Dress is likely to and does
permit Defendant to pass off Kennametal’s infringing products to the general public to the
detriment of Plaintiff and the unjust enrichment of Defendant. Such acts by Defendant have
caused and continue to cause confusion as to the source and/or sponsorship of Defendant’s
infringing products.
40. Defendant’s acts constitute willful infringement of Plaintiff’s exclusive rights in
Plaintiff’s Trade Dress, in violation of Louisiana Revised Statute 51:222.
41. As a direct and proximate result of Defendant’s conduct, Plaintiff has suffered
damage to its valuable trademarks in an amount to be ascertained at trial.
-8-
COUNT IV
UNFAIR COMPETITION
43. Defendant, with full knowledge of the fame of HARD METAL’s rights intended
to and did trade on the goodwill associated with such trade dress.
44. Defendant’s acts have misled and continue to mislead and deceive consumers as
to the source of Defendant’s infringing products, permit and accomplish palming off of
Defendant’s goods as those of Plaintiff, and falsely suggest a connection with Plaintiff.
45. Defendants have engaged in unfair competition, which constitutes an unfair trade
practice under Louisiana Revised Statutes 51:1401, et seq.
46. As a direct and proximate result of Defendants’ conduct, Plaintiff has suffered
damage to its valuable trade dress and other rights in an amount to be ascertained at trial.
WHEREFORE, Plaintiff HARD METAL ADVANTAGE, LLC respectfully prays for
judgment in its favor and against Defendant as follows:
1. That Defendant Kennametal has infringed U.S. Patent No. D649,987 and U.S.
Trademark Reg. No. 5,404,184;
2. That Defendant Kennametal be ordered to account for and pay to Plaintiff the
damages to Plaintiff arising out of Defendant’s infringing activities, together with interest and
costs;
3. That the infringement by Defendant be adjudged willful and that the damages to
Plaintiff be increased under 35 U.S.C. § 284 to three times the amount found or measured;
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4. That Defendant Kennametal and its agents, servants, officers, directors, employees,
and all persons or entities acting in concert with Defendant directly or indirectly, be enjoined
from infringing, inducing the infringement of or contributing to the infringement of U.S. Patent
No. D649,987 and U.S. Trademark Reg. No. 5,404,184;
5. That this be adjudged an exceptional case and that Plaintiff be awarded its attorneys’
fees in this action pursuant to 35 U.S.C. § 285;
6. A preliminary injunction enjoining and restraining Defendant, its officers, directors,
agents, servants, employees, attorneys and all others acting under or through them, directly or
indirectly, from infringing the Trade Dress of Plaintiff;
7. For an order requiring Defendant to recall from its distributors, wholesalers, retailers
and customers any product bearing any reproduction, counterfeit, copy or colorable imitation of
the Trade Dress;
8. For an order requiring Defendant to be required to account to Plaintiff for any and all
profits derived by Defendant from the sale of its goods and for all damages sustained by Plaintiff
by reason of said acts of trade dress infringement complained herein;
9. For judgment according to the circumstances of the case, for such sum above the
amount found in actual damages, but not to exceed three times such amount as the Court may
deem just;
10. For an order requiring that all products, documents, materials, labels, signs, products,
packages, wrappings, receptacles and advertisements in Defendant’s possession or control
bearing the design or any reproduction, counterfeit, copy or colorable imitation thereof, and all
plates, molds, matrices, and other means of making the same shall be delivered up; and
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11. That Plaintiff be awarded such other and further relief as the Court deems just and
proper.
JURY DEMAND
Plaintiff HARD METAL ADVANTAGE, LLC hereby demands a trial by jury of all
issues.
Dated: December 30, 2020 Respectfully submitted:
BABINEAUX, POCHÉ, ANTHONY

& SLAVICH, L.L.C.
s/Ted M. Anthony
TED M. ANTHONY, La. Bar No. #21446 (T.A.)
KAREN T. BORDELON, La. Bar No. #20114
SARAH B. DUPONT, La. Bar No. #35048
P. O. Box 52169
Lafayette, Louisiana 70505-2169
Telephone: (337) 984-2505
Fax: (337) 984-2503
Email: tanthony@bpasfirm.com
sdupont@bpasfirm.com
AND
MAHTOOK & LAFLEUR, L.L.C.
s/Charles A. Mouton
CHARLES A. MOUTON (LA #17721)
JARED L. FOTI (LA #32813)
Post Office Box 3089
Lafayette, Louisiana 70502
Phone: (337)266-2189
Fax: (337)266-2303
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Case 6:20-cv-01702 Document 1-1 Filed 12/30/20 Page 1 of 3 PageID #: 13
EXHIBIT "A"
EXHIBIT "A"
EXHIBIT "A"
EXHIBIT "B"
EXHIBIT "B"
EXHIBIT C
JS 44 (Rev. 10/20) Case 6:20-cv-01702 Document
CIVIL 1-4 Filed SHEET
COVER 12/30/20 Page 1 of 2 PageID #: 19
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 INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS
Kennametal Inc.
Hard Metal Advantage, LLC
a Pennsylvania Corporation
(b) County of Residence of First Listed Plaintiff Iberia Parish, LA County of Residence of First Listed Defendant Allegheny County, PA
(EXCEPT IN 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 (If Known)
Ted M. Anthony, Babineaux, Poche', Anthony & Slavich,
LLC, P.O. Box 52169, Lafayette, LA 70505-2169
337-984-2505
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
1 U.S. Government ✖ 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place ✖ 4 4
of Business In This State
2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 ✖ 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
Citizen or Subject of a 3 3 Foreign Nation 6 6

Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act
120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC
130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a))
140 Negotiable Instrument Liability 367 Health Care/ 400 State Reapportionment
150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust
& Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking
151 Medicare Act 330 Federal Employers’ Product Liability ✖ 830 Patent 450 Commerce
152 Recovery of Defaulted Liability 368 Asbestos Personal 835 Patent - Abbreviated 460 Deportation
Student Loans 340 Marine Injury Product New Drug Application 470 Racketeer Influenced and
(Excludes Veterans) 345 Marine Product Liability 840 Trademark Corrupt Organizations
153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR 880 Defend Trade Secrets 480 Consumer Credit
of Veteran’s Benefits 350 Motor Vehicle 370 Other Fraud 710 Fair Labor Standards Act of 2016 (15 USC 1681 or 1692)
160 Stockholders’ Suits 355 Motor Vehicle 371 Truth in Lending Act 485 Telephone Consumer
190 Other Contract Product Liability 380 Other Personal 720 Labor/Management SOCIAL SECURITY Protection Act
195 Contract Product Liability 360 Other Personal Property Damage Relations 861 HIA (1395ff) 490 Cable/Sat TV
196 Franchise Injury 385 Property Damage 740 Railway Labor Act 862 Black Lung (923) 850 Securities/Commodities/
362 Personal Injury - Product Liability 751 Family and Medical 863 DIWC/DIWW (405(g)) Exchange
Medical Malpractice Leave Act 864 SSID Title XVI 890 Other Statutory Actions
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 790 Other Labor Litigation 865 RSI (405(g)) 891 Agricultural Acts
210 Land Condemnation 440 Other Civil Rights Habeas Corpus: 791 Employee Retirement 893 Environmental Matters
220 Foreclosure 441 Voting 463 Alien Detainee Income Security Act FEDERAL TAX SUITS 895 Freedom of Information
230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 870 Taxes (U.S. Plaintiff Act
240 Torts to Land 443 Housing/ Sentence or Defendant) 896 Arbitration
245 Tort Product Liability Accommodations 530 General 871 IRS—Third Party 899 Administrative Procedure
290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION 26 USC 7609 Act/Review or Appeal of
Employment Other: 462 Naturalization Application Agency Decision
446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration 950 Constitutionality of
Other 550 Civil Rights Actions State Statutes
448 Education 555 Prison Condition
560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
✖ 1 Original 2 Removed from 3 Remanded from 4 Reinstated or 5 Transferred from 6 Multidistrict 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 cite jurisdictional statutes unless diversity):
35 USC §271; 15 USC §1121
VI. CAUSE OF ACTION Brief description of cause:
WILLFUL PATENT INFRINGEMENT; TRADEMARK INFRINGEMENT, ETC.; UNFAIR TRADE PRACTICES
VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: ✖ Yes No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
Dec 30, 2020 s/Ted M. Anthony
FOR OFFICE USE ONLY
RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

JS 44 Reverse (Rev. 10/20)
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading 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. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then
the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".
II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.
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Original Proceedings. (1) Cases which originate in the United States district courts.
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Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
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Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to
changes in statue.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service.
VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.

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Case 6:20-cv-01702 Document 1 Filed 12/30/20 Page 1 of 12 PageID #: 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

HARD METAL ADVANTAGE, LLC, ) CIVIL ACTION NO. ________________

JURISDICTION AND VENUE

States, including 35 U.S.C. § 271.

a common nucleus of operative facts.

(“Defendant” and/or “Kennametal”) has committed and/or contributed to acts of infringement in

4. On information and belief, Defendant is subject to the Court’s specific and

5. Plaintiff HARD METAL is a limited liability company organized and existing

under the laws of the State of Louisiana.

incorporating six-sided hexagonal carbide chips and multi-sided cutting chips.

PATENT INFRINGEMENT (‘987 PATENT)

8. Plaintiff incorporates the allegations of paragraphs 1 through 7 as though fully set

suitable for use on a variety of mills and other tools.

Duane C. Dunnahoe, as inventor.

and HARD METAL is the owner by assignment of the ‘987 Patent.

exceptional case pursuant to 35 U.S.C. § 285.

TRADEMARK/TRADE DRESS INFRINGEMENT (‘184 TRADEMARK)

paragraphs 1 through 18 of this Complaint.

for use on a variety of mills and other tools.

registrant HARD METAL.

Products”), and which are the subject of this litigation.

extensively sold and serviced by Plaintiff.

See, Exhibit “C” attached hereto and made a part hereof.

Dress, and the infringement by Defendant has impaired Plaintiff’s business.

29. Plaintiff’s Infringed Products include distinctive non-functional elements which

are incorporated in Defendant’s Infringing Products.

products of plaintiff a pre-eminent position in the marketplace.

infringed by Defendant and continues to be infringed on account of Defendant’s sale in

commerce of Defendant’s product.

and denotes to purchasers goods which originate with Plaintiff.

Defendant has distributed and continues to distribute in interstate commerce to consumers,

Trade Dress for Defendant’s own commercial advantage.

purchasers as to the source of origin of such goods.

goodwill symbolized by its Trade Dress and the ‘184 Trademark.

Plaintiffs in consequence of the deliberate nature of the infringement by Defendant in an amount

equaling three times said damages.

otherwise will cause Plaintiff immediate and irreparable harm.

STATE (LOUISIANA) TRADEMARK INFRINGEMENT

paragraphs 1 through 37 of this Complaint.

40. Defendant’s acts constitute willful infringement of Plaintiff’s exclusive rights in

Plaintiff’s Trade Dress, in violation of Louisiana Revised Statute 51:222.

damage to its valuable trademarks in an amount to be ascertained at trial.

paragraphs 1 through 41 of this Complaint.

practice under Louisiana Revised Statutes 51:1401, et seq.

WHEREFORE, Plaintiff HARD METAL ADVANTAGE, LLC respectfully prays for

judgment in its favor and against Defendant as follows:

Trademark Reg. No. 5,404,184;

No. D649,987 and U.S. Trademark Reg. No. 5,404,184;

fees in this action pursuant to 35 U.S.C. § 285;

6. A preliminary injunction enjoining and restraining Defendant, its officers, directors,

indirectly, from infringing the Trade Dress of Plaintiff;

the Trade Dress;

by reason of said acts of trade dress infringement complained herein;

packages, wrappings, receptacles and advertisements in Defendant’s possession or control

Dated: December 30, 2020 Respectfully submitted:

BABINEAUX, POCHÉ, ANTHONY

MAHTOOK & LAFLEUR, L.L.C.

Citizen or Subject of a 3 3 Foreign Nation 6 6

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

V. Origin. Place an "X" in one of the seven boxes.

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