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Case 1:21-cv-01754-JMS-MJD Document 1 Filed 06/15/21 Page 1 of 43 PageID #: 1

U.S. DISTRICT COURT


FOR THE SOUTHERN DISTRICT OF INDIANA
Indianapolis Division

VALQARI LLC )
)
Plaintiff, )
)
v. ) Case No.: 1:21-cv-1754
)
DRONEDEK CORPORATION, )
DRONEDEK LLC, and DANIEL O’TOOLE )
)
Defendants. )
)

COMPLAINT

Plaintiff Valqari, LLC (“Valqari” or “Plaintiff”) asserts the following causes of action

against DroneDek Corporation, DroneDek LLC, and Daniel O’Toole (collectively, the

“Defendants”):

NATURE OF THE ACTION

1. This is a civil action for copyright infringement under the United States

Copyright Act, 17 U.S.C. §501 et seq.; for false advertising, false designations of origin, false

and misleading descriptions of fact, false and misleading representations of fact, misbranding

and unfair competition under the Lanham Act, 15 U.S.C. § 1125; and for unfair competition and

deceptive trade practices under Indiana law.

THE PARTIES

2. Plaintiff Valqari LLC is a Delaware corporation with its headquarters and

principal place of business at 13900 S. Van Dyke, Unit 104, Plainfield, Illinois, 60544.

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3. Upon information and belief, Defendant Dronedek Corporation is a Delaware

corporation with its headquarters and principal place of business at 7601 E 88th Bldg 3,

Indianapolis, Indiana, 46256.

4. Upon information and belief, Defendant Dronedek LLC (is a domestic Indiana

company with its headquarters and principal place of business at 7601 E 88th Bldg 3,

Indianapolis, Indiana, 46256.

5. Upon information and belief, Defendant Daniel S. O’Toole (“Defendant

O’Toole”) is an individual and a citizen of the State of Indiana and resides in this judicial district.

JURISDICTION AND VENUE

6. The Court has jurisdiction over the claims pursuant to 28 U.S.C. §§ 1331, 1332

and 1338, and 28 U.S.C. §1367(a).

7. Upon information and belief, Defendant Dronedek LLC and Defendant Dronedek

Corporation are subject to the personal jurisdiction of this Court because their headquarters or

principal offices are located within this District and have committed acts of infringement within

this District. Upon information and belief, Defendant O’Toole is subject to the personal

jurisdiction of this Court because he is a resident of and has committed acts infringement in this

District.

8. Venue is proper in this judicial pursuant to 28 U.S.C. §§ 1391(b), 139l(c), and

1400(a), because each Defendants either resides and/or has its headquarters or principal office

located within this District and has committed acts of infringement within, and is subject to

personal jurisdiction in this District.

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FACTUAL BACKGROUND

9. Plaintiff Valqari LLC is a company specializing in the development of drone

delivery and receiving technologies and systems.

10. On information and belief, Defendant Dronedek LLC and Defendant Dronedek

Corporation (collectively, the “Defendant Companies”) are companies that specialize in the

development of drone delivery and receiving technologies and systems.

11. On information and belief, Defendant O’Toole is the founder and CEO of the

Defendant Companies and the sole or primary financier of their activities, including but not

limited to the activities alleged herein.

12. On information and belief, Plaintiff and all Defendants operate in competition

with one another for customers, potential customers, investors, potential investors, and other

interested parties in the drone delivery and receiving technologies and systems marketplace.

Such interested parties, include but are not limited to, partners with whom the Plaintiff or any

Defendant, may collaborate, to demonstrate the viability of a solution to an existing problem

with drone delivery and receiving technologies or services, or to demonstrate the technical or

commercial feasibility of employing drone delivery and receiving technologies or services for a

particular application which may not have been understood or accepted throughout the relevant

marketplace. The number and the significance of the opportunities to collaborate with partners

is influenced in part by a company’s reputation, and its technical capabilities and

accomplishments as perceived in the marketplace.

13. This dispute involves Defendants’ repeated copying, false advertising, false

representation, designation of origin and misbranding of visual depictions of Plaintiff’s first

prototype smart mailbox intended for residential use and customized delivery drone.

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14. Plaintiff’s first prototype smart mailbox and customized delivery drone were

operational in 2017 and equipped to communicate with one another with the use of wireless

technology. An early 2018 warehouse video recording of the coordinated operation between

Plaintiff’s custom drone and smart mailbox is included in a separate video posted on February

11, 2019 on Plaintiff’s Youtube.com web page at https://youtu.be/tgWcB0o7d8w. The complete

earlier 2018 video recording can be viewed at

https://www.youtube.com/watch?v=dnhwZb_SAaA. Among other features of Plaintiff’s first

prototype smart mailbox and drone is the use of wireless technology to authenticate authorized

delivery and to guide the drone into proper landing position. In the early 2018 video, Plaintiff’s

delivery drone carrying a package lands on the deck of Plaintiff’s operational first prototype

smart mailbox. A horizontally disposed, steel tambour door with a raised distal edge opens, the

package is released and received on an internal platform inside the smart mailbox, which then

descends with the tambour door closing to secure the package for later retrieval by its intended

recipient.

15. In or around July 2018, Ryan Walsh, Chief Executive Officer of Plaintiff,

requested that photographs be taken of Plaintiff’s first protype smart mailbox and customized

delivery drone.

16. The requested photographs were taken by Brad Wilkening in the backyard of the

residence of Plaintiff’s CEO Ryan Walsh in Aurora, Illinois that same month.

17. Plaintiff’s photographed operational prototype smart mailbox and delivery drone

were featured in an August 2018 article in Peoria Magazine which was published both online and

in print form. A copy of the online version of this article is attached hereto as Exhibit 1.

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18. Two photographs (DSC_3428.jpg and DSC_3559.jpg) taken during the July 2018

photoshoot, and which appeared in the August 2018 Peoria Magazine article, were later duly

registered by Plaintiff with the U.S. Copyright Office and assigned U.S. Copyright Registration

No. VA 2-242-684 (“the ‘684 Registration”). True and accurate copies of the ‘684 Registration,

a list of the deposit materials, and each of the two photographs submitted to the U.S. Copyright

Office, are attached hereto as respectively, Exhibit 2 , Exhibit 3, Exhibit 4, and Exhibit 5.

Plaintiff is the exclusive owner of copyright in the requested photographs by an agreement and

assignment signed by Brad Wilkening and Valqari, LLC.

19. A cropped version of the Exhibit 4 photograph of Plaintiff’s operational drone and

smart mailbox appears below:

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Cropped Version of Exhibit 4 Photograph of


Valqari, LLC Drone & Smart Mailbox
U.S. Copyright Reg. No. 2-242-684
Image filename: DSC_3428.jpg

20. Subject matter present in the Exhibit 4 photograph includes: (a) Plaintiff’s

delivery drone being outfitted with six propellers and a GPS module mounted to a post above the

body of the drone; (b) a rectangular package is tethered to the body of the drone and suspended

between the body and the landing deck of the smart mailbox; (c) the landing deck has a darker,

U-shaped, outer perimeter that wraps around a lighter colored interior region where the deck
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opening is located; (d) the U-shaped, outer region of the landing deck appears to have a different

texture than the interior region, which is due to perforations in the steel that forms the outer

perimeter; (e) the delivery drone is perched on the landing deck with its landing gear straddling

the deck opening, and the skids of the landing gear are oriented along the boundary between the

U-shaped outer region and the rectangular inner region of the deck; (f) a steel tambour door

secures the deck opening and has not yet begun to slide from a closed to open position as evident

from the location of its raised distal edge which runs between and perpendicular to the skids of

the drone’s landing gear; (g) the landing deck overhangs three of four sides of the generally

square, cross sectioned body to which it is mounted; (h) the body, on one side, includes a door to

permit for the retrieval of packages, and on the other side at an elevation above the door, extends

laterally with the landing deck.

21. On August 31, 2018, Plaintiff created a link on its website (www.valqari.com) to

provide visitors with access to the August 2018 Peoria Magazine Article featuring Plaintiff’s

operational drone and smart mailbox. A true and accurate copy of the web page on Plaintiff’s

website containing this link is attached hereto as Exhibit 6. The Article has been accessible on

and through Plaintiff’s web site from August 31, 2018 through the present date.

22. Between late August 2018 and November 15, 2018, Alex Falesch, a member

manager of Plaintiff created a derivative work, rcvrConcept.jpg image file, using an isolated

image of Plaintiff’s drone and first protype smart mailbox from the Exhibit 4 photograph.

23. On or around November 15, 2018, Alex Falesch incorporated the

rcvrConcept.jpg image file into the banner of Plaintiff’s www.valqari.com web site.

24. A copyright claim in the rcvrConcept.jpg image file was duly registered by

Plaintiff with the U.S. Copyright Office and assigned U.S. Copyright Reg. No. 2-250-479” (“the

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‘479 Registration”). True and accurate copies of the ‘479 Registration and rcvrConcept.jpg

image file deposit material submitted to the U.S. Copyright Office are attached hereto as,

respectively, Exhibit 8 and Exhibit 9. Plaintiff is the exclusive owner of the registered copyright

claim in the rcvrConcept.jpg image file as affirmed by an agreement and assignment signed by

Alex Falesch and Valqari LLC.

25. In or around March 2019, Plaintiff prepared online advertisements promoting

Valqari, LLC using the image of the rcvrConcept.jpg image file. One such advertisement

appears on the www.dronemajor.com web site. A true and accurate copy of the advertisement,

cropped to fit on one page, is attached hereto as Exhibit 9. A second advertisement appearing

on the www.dronemajor.com website around the same time and which advertises and promotes

Plaintiff’s smart mailbox with a cropped version of the image of the rcvrConcept.jpg image file

is attached hereto as Exhibit 10.

26. Plaintiff and its drone and smart mailbox were further advertised and promoted

with the identical visual depiction of its drone and branded, smart mailbox as they appeared in

the rcvrConcept.jpg image file, but with non-identical background residential settings. Such

advertisements were distributed and displayed in print and electronically in industry specific

drone and general media forums. True and accurate copies of such advertisements prepared by

Plaintiff for the April 29 through May 2, 2019 Association for Unmanned Vehicle Systems

International (AUVSI) Trade Show held in Chicago, Illinois are attached hereto as Exhibit 11

(single page, printed flyer), Exhibit 12 (a one page insert for the AUVSI daily digital magazine),

and Exhibit 13 (a short news article appearing in the AUVSI daily digital magazine).

27. Plaintiff and its drone and smart mailbox were further promoted in GPS World

(www.gpsworld.com) a trade publication, in connection with its appearance as an exhibitor at the

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2019 AUVSI Trade Show referred to above. A true and accurate copy of the GPS World article

is attached hereto as Exhibit 14.

28. A cropped view of Plaintiff’s drone and smart mailbox as they appear in the

rcvrcConcept.jpg image file (Exhibit 8) is shown below:

Cropped View of Exhibit 8 Image File


Valqari, LLC drone and smart mailbox branded with
Valqari character head with winged helmet
U.S. Copyright Reg. 2-250-479
Image filename: rcvrConcept.jpg

29. Added and/or revised subject matter in the visual depiction of Plaintiff’s drone

and smart mailbox under the ‘479 Registration includes: (a) isolating, separating and reorienting

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the photographic image of Plaintiff’s drone and smart mailbox by flipping this subject matter

horizontally so that it presents a right side face that extends to the right and rear (rather than a

left side face that tends to the left and rear as shown in the Exhibit 4 photograph); (b) the

addition of lights on the landing deck in front and behind Plaintiff’s drone; (c) adjustments in

brightness, contrast, coloring and hue, and (d) the addition of indicia including a numerical street

address and the Valqari logo which is a distinctive character head with a winged helmet.

30. The Valqari logo referred to in part (d) of the preceding paragraph, is a source

identifier that identifies and distinguishes Plaintiff, its business, and its goods and services from

others in the industry and marketplace.

31. A true and accurate copy of the Valqari logo referred to above is shown below:

32. The Valqari logo has been prominently displayed on Plaintiff’s web site

www.valqari.com since 2017. On June 29, 2020, Plaintiff filed an application to register the

Valqari logo as a trademark, which application received a notice of allowance on April 6, 2021.

33. On information and belief, Plaintiff has received orders in excess of $1 million for

the purchase and servicing of its smart mailbox.

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Defendants’ Unlawful Acts

34. After the Exhibit 4 and Exhibit 8 images of Plaintiff’s drone and smart mailbox

were publicly accessible on and through Plaintiff’s web site (www.valqari.com), Defendants

downloaded the Exhibit 4 and the Exhibit 8 images, and copied protected expression of

substance and value from both of the Exhibit 4 and Exhibit 8 works, and incorporated this

protected expression into multiple infringing works, intending the infringing works to be further

distributed, copied and displayed by Defendants and others in violation of applicable law and

Plaintiff’s rights.

35. On information and belief, a true and accurate copy of a first example document

created by and/or under the supervision of Defendant O’Toole and evidencing the violation of

multiple rights of Plaintiff is attached hereto as Exhibit 15. Exhibit 15 is a PDF document that

was made from a Microsoft Power Point file. The electronic filename of the Exhibit 15 PDF

document is “DroneDek-USPS-Prez-Congress-Simple.pdf”.

36. On information and belief, the Exhibit 15 document is a presentation prepared by

Defendant O’Toole. The term “Prez” in the electronic filename “DroneDek-USPS-Prez-

Congress-Simple.pdf” of Exhibit 15 stands for the word “Presentation”. The first statement in

the Exhibit 15 PDF document is “WELCOME.”

37. The Exhibit 15 PDF document was created on or around January 14, 2019

according to the metadata of the PDF electronic file “Document Properties” tab, a true and

accurate screenshot of which is attached hereto as Exhibit 16.

38. On information and belief, the Exhibit 15 PDF document was uploaded to the

location https://www.dronedek.com/wp-content/uploads/2020/01/DroneDek-USPS-Prez-

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Conpress-Simple.pdf on the Dronedek website in or around January 2020, approximately one

year after the PDF document was created.

39. On information and belief, in his personal capacity and several months before he

caused any company or corporation bearing the name DRONEDEK to be registered or

incorporated anywhere in the United States, Defendant O’Toole created and/or supervised the

creation of the Exhibit 15 PDF document and distributed, displayed and used the PDF document

in commerce and in presentations to third parties interested in the drone delivery and receiving

technology and systems field, including customers, potential customer, investors, potential

investors and other interested parties.

40. On information and belief, in or after June 2019, Defendants have authorized and

approved the distribution, display and use of the Exhibit 15 PDF document in commerce and in

presentations to third parties interested in the drone delivery and receiving technology and

systems field, including customers, potential customers, investors, potential investors and other

interested parties.

41. On information and belief, in his personal capacity and several months before he

caused any company or corporation bearing the name DRONEDEK to be registered or

incorporated anywhere in the United States, Defendant O’Toole copied, distributed, and

displayed, the Exhibit 15 document, and made presentations based on the Exhibit 15 to several

individuals and entities interested in the drone delivery and receiving technology and systems

field, which included customers, potential customers, investors, potential investors, and other

interested parties.

42. A true and accurate copy of Slide 12 of Exhibit 15 is shown below:

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43. A true and accurate copy of Slide 13 of Exhibit 15 is shown below:

44. True and accurate cropped images of the drone and smart mailbox images that

appear in each of (a) rcvrConcept.jpg (Exhibit 8) of Plaintiff’s ‘479 Registration and (b) Slide

13 of Exhibit 15, are shown in TABLE 1 below:

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TABLE 1

- Cropped Exhibit 8 Image of Valqari LLC Cropped Dronedek Image from


Drone and Branded Smart Mailbox Slide 13 of Exhibit 15
- U.S. Copyright Reg. No. 2-250-479
- Image filename: rcvrConcept.jpg

45. The filename “rcvrConcept” of Plaintiff’s work appears in the metadata of Slide

13 of Exhibit 15, as shown in the excerpt below taken from a metadata analysis of Slide 13

performed with the metadata analysis tool available at www.exit.regex.info, a true and accurate

copy of which is attached hereto as Exhibit 17.

46. The entirety of the image that appears in the middle column of Slide 13 of Exhibit

15 was copied from the rcvrConcept.jpg image file of Plaintiff.

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47. The visual depictions of the smart mailbox and drone shown on the left and on the

right in TABLE 1 are identical, except for the removal of Plaintiff Valqari LLC’s logo from the

side of the smart mailbox in the image on the right.

48. Plaintiff’s visually depicted, branded smart mailbox shown on the left in TABLE

1 was copied and stripped of its original branding and used in Slide 13 of Exhibit 15. On

information and belief, these acts were performed and/or were authorized and approved by

Defendant O’Toole.

49. A true and accurate depiction of Slide 16 of Exhibit 15 is shown below:

50. True and accurate cropped images of the drone and smart mailbox in each of (a)

the rcvrConcept.jpg image file (Exhibit 8) of Plaintiff’s ‘479 Registration and (b) Slide 16 of

Exhibit 15, are shown in TABLE 2 below:

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TABLE 2

Cropped Exhibit 8 Image of Valqari LLC Cropped Dronedek Image from


Drone and Branded Smart Mailbox Slide 16 of Exhibit 15
U.S. Copyright Reg. No. 2-250-479
Image filename: rcvrConcept.jpg

51. The filename “rcvrConcept” of Plaintiff’s work appears in the metadata of Slide

16 of Exhibit 15, as shown in the excerpt below taken from a metadata analysis of Slide 16

performed with the metadata analysis tool available at www.exit.regex.info, a true and accurate

copy of which is attached hereto as Exhibit 18.

52. The entirety of the image that appears behind the “DroneDekTM” common law

trademark in the lower right corner of Slide 16 of Exhibit 15 was copied from the

rcvrConcept.jpg image file of Plaintiff.

53. The visual depictions of the drone and smart mailbox on the left and on the right

in TABLE 2 are identical, except for the removal of Plaintiff’s company logo from the side of

the smart mailbox and the placement of the “DroneDekTM” common law trademark across the

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middle of the image on the right of TABLE 2 which is taken from the lower right corner of Slide

16 of Exhibit 15.

54. On information and belief, Defendant O’Toole authorized and approved the use of

the “TM” immediately after “DroneDek” in the image of the drone and smart mailbox in Slide

16 of Exhibit 15 to indicate his intent that “DroneDekTM” be perceived as a common law

trademark and source identifier for goods.

55. On information and belief, Defendant O’Toole intended that he and/or Dronedek

be perceived as the source of the smart mailbox and/or drone shown in Slide 16 of Exhibit 15,

despite knowing that this representation was false and misleading.

56. On information and belief, Plaintiff’s visually depicted, branded smart mailbox on

the left in Table 2 was copied, stripped of its original branding and used in Exhibit 15. On

information and belief, these acts were authorized and approved by Defendant O’Toole.

57. Had Plaintiff’s Valqari logo not been removed from the visually depicted, smart

mailbox shown in Slide 16 of the Exhibit 15 document, it would have appeared conspicuously

beneath and unobscured by the Dronedek common law trademark.

58. On information and belief, the use, distribution and display of Exhibit 15 has been

directed, authorized and approved by all Defendants.

59. True and accurate cropped views of (a) the Exhibit 4 photograph of the ‘684

Copyright Registration of Plaintiff’s custom drone and first prototype smart mailbox intended for

residential use, and (b) an image that appears on the “About” page of the Dronedek web site

(https://www.dronedek.com/about/) beside the annotation “Introducing . . . DRONEDEK Smart

Receptacle” and in numerous print and electronic materials distributed and displayed by

Defendants, are shown in TABLE 3 below:

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TABLE 3

Cropped Exhibit 4 Photograph of Valqari, LLC Cropped Exhibit 19 Image from “About” Tab on
Drone & Smart Mailbox Dronedek Web Page
U.S. Copyright Reg. No. 2-242-684 (https://www.dronedek.com/about/)
Image filename: DSC_3428.jpg appearing beside the following text:
“Introducing . . . DRONEDEK Smart Receptacle”

60. A true and accurate cropped screenshot of the Dronedek website “About” page is

attached hereto as Exhibit 19.

61. The image on the left in Table 3 is a photograph of actual products of Plaintiff

which existed and were operational.

62. On information and belief, in the image on the right in TABLE 3, none of the

drone, or smart mailbox or landing deck is a direct or realistic visual representation of any

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product, including any prototype, that any of the Defendants (a) ever made, had made or ever

was in possession of, or (b) ever photographed or had photographed.

63. On information and belief, the camera angle in the photograph on the left in

TABLE 3 is identical to the angle which the viewer is presented with in the image on the right in

TABLE 3.

64. On information and belief, the visual depictions of the drone in the images on the

left and right in TABLE 3 are identical or nearly identical, from the GPS module at the top of

the drone, down through the complexity in the pattern of the sunlight and shadow cast across the

white rectangular package, to the shadow cast by the rectangular package on the landing deck, to

the position and orientation of the drone landing gear on the landing deck of the smart mailbox.

On information and belief, after copying and isolating the image of the drone and smart mailbox

from the image on the left in TABLE 3, minor alteration or manipulation of the isolated image

was performed to eliminate a small tab of white masking tape that extends forward at the top of

the forward arm of the landing gear.

65. On information and belief, the visual depictions of the landing deck in the images

on the left and right in TABLE 3 are identical or nearly identical, as reflected in the horizontally

disposed, tambour door having a raised distal edge positioned between and perpendicular to the

skids of the landing gear, the tambour door located in a lighter colored, interior rectangular

region surrounded on three sides by a darker, U shaped outer region that appears to have a

different texture than the interior region. On information and belief, after copying and isolating

the drone and smart mailbox from the image on the left in TABLE 3, minor alteration or

manipulation of the isolated image was performed (a) to add visual filler material at the corners

of the landing deck to make adjacent sides along the perimeter of the landing deck appear to

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form right angles where arcuate corners exist in the starting image, and (b) to smooth the top

surface of the landing deck along the edge, particularly at the left corner of the landing deck, in

order to create the image on the right in TABLE 3.

66. On information and belief, after copying and isolating the image of the drone and

smart mailbox from the image on the left in TABLE 3, Defendants directed, authorized and

approved minor alteration or manipulation of the isolated image of the smart mailbox below the

landing deck to conceal or to disguise their piracy in creating the image on the right in TABLE

3.

67. On information and belief, the image on the right in TABLE 3 contains

substantial amounts of identical visual subject matter, including material of substance and value,

which was copied from the image on the left in TABLE 3, without authorization, at the

direction, authorization and approval of Defendants, in violation of applicable law and Plaintiff’s

rights.

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Defendants’ Further, Unlawful Acts

68. On information and belief, Defendants have made, distributed, displayed and used

and continue to make, distribute, display and use advertisements and promotional materials

which infringe Plaintiff’s registered copyrights and which contain false and misleading

representations, false designations of origin and misbranding, to unfairly advance and promote

the commercial identity, status and reputation of the Defendant Companies, to solicit the sale of

their products and services to customers and potential customers, and to solicit investors,

potential investors and partners, in competition with Plaintiff.

69. On information and belief, such wrongful acts, include but are not limited to,

further unlawful use of the image on the right in TABLE 3 herein.

70. A true and accurate copy of an example announcement which Defendants

authorized, approved, and distributed and which, on information and belief, Defendants caused

others to distribute, display and rely upon is attached hereto as Exhibit 20

(https://drone1354.rssing.com/chan-62877773/all_p29.html). On information and belief, the

image used in the advertisement is falsely labeled “The Dronedek Mailbox” and is a visual

stimulus that draws the reader to the advertisement. The substantially larger size of the image

relative to size of the space afforded the text is proportionality represented below:

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Dronedek’s Unlawful Acts to Facilitate


the Sale of Subscription Orders and other Dronedek Products or Services

71. A true and accurate copy of another announcement bearing the title

“DRONEDEK Designs Drone Delivery Receptacle” which, on information and belief,

Defendants authorized, approved, and distributed and caused others to distribute, display and

rely upon is attached hereto as Exhibit 21 (https://www.aerospacetechreview.com/dronedek-

designs-drone-receptacle/). On information and belief, the announcement was published on

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January 3, 2020 just before the Defendants’ Exhibition at the Consumer Electronics Show (CES)

held January 7-10, 2020 in Las Vegas, Nevada, an event described as “a massive tradeshow” in a

news excerpt republished by Defendant Dronedek Corporation on its www.wefunder.com web

page (See pg. 2 of copy of Defendant Dronedek Corporation’s www.wefunder.com web page

attached hereto as Exhibit 22). On information and belief, the Exhibit 21 announcement gives

the false impression that the product shown was or is sourced, made, or sold by Dronedek. On

information and belief, the image is used in the advertisement to enhance Dronedek’s

announcement of and to facilitate its solicitation of subscription orders, which the announcement

refers to as follows:

DRONEDEK is set to begin taking subscription orders for end users and is
also allowing shippers and deliverers to sign on to the platform and in so doing
so receive an extended free startup period.

On information and belief, the image is a visual stimulus that draws the reader to the

announcement. The substantially larger size of the image relative to size of the space afforded

the text is proportionality represented below:

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72. True and accurate copies of other similar news articles and advertisements

similar to Exhibit 21 and dated in the first week of January 2020, that were unlawfully made and

which misrepresent the source of the depicted products, and which Defendants authorized,

approved and distributed, and caused others to distribute, display and rely upon, to facilitate the

sale of subscription orders and other Dronedek products and services are attached here to as

Exhibit 23 (https://www.unmannedairspace.info/urban-air-mobility/dronedek-to-unveil-next-

generation-drone-docking-station-smart-mailbox-at-ces-2020/) and Exhibit 24

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(https://50skyshades.com/news/business-aviation/ready-set-start-dronedek-changing-delivery-

by-drone).

73. On information and belief, Defendants were exhibitors at the CES2020 trade

show in Las Vegas, Nevada. On information and belief, the text, arrow and image shown below

appeared as part of a fixed display in Defendant Dronedek LLC’s booth at CES2020:

74. On information and belief, the fixed display of the previous Paragraph included

the Dronedek logo and trademark appeared as a banner at the top of the text, arrow and image

shown above, as shown in a true and accurate photograph of Defendant Dronedek LLC’s booth

at the CES 2020 Trade Show which is attached as Exhibit 25. On information and belief, this

fixed display remained on display in Defendant Dronedek LLC’s booth throughout Defendant

Dronedek LLC’s Exhibition at CES2020.

75. On information and belief, none of the drone, or smart mailbox or landing deck in

the image on the right in the screenshot above is a direct or a realistic representation of any

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product, existing or otherwise, that any Defendant (a) ever made, had made or ever was in

possession of, or (b) ever photographed or had photographed.

76. Consistent with the statement made in Exhibit 21, Exhibit 22 and other publicized

announcements which Defendants caused to be made and distributed to the public before

CES2020 and in which it is stated “DRONEDEK is set to begin taking subscription orders

for end users and is also allowing shippers and deliverers to sign on to the platform and in

so doing to receive an extended free startup period”, during and/or at CES2020, Defendants:

a. intended to begin taking subscription orders for end users and/or intended

to allow shippers and deliverers to sign on to Defendant Dronedek LLC’s

platform;

b. attempted to take or to solicit subscription orders for end users, and/or

attempted to allow shippers and deliverers to sign on to Defendant

Dronedek LLC’s platform;

c. began taking subscription orders or received a promise of a subscription

order, and/or allowed shippers and deliverers to sign on to Dronedek

LLC’s platform.

77. The text, arrow and image in the screenshot above and the fixed display in

Defendant Dronedek LLC’s CES 2020 booth containing this material are each a false and a

misleading representation and a false and misleading statement, which are material, and which

were wrongfully used by Defendants to promote their commercial identity, status and reputation

and the perception in the marketplace of their existing technical capabilities, accomplishments

and commercial readiness, and to facilitate the solicitation of subscription orders of Defendants’

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products or services and of investment by third parties, all of which occurred in competition with

Plaintiff and to the detriment of its good will and the distinction it has earned in the marketplace.

78. On information and belief, and as further discussed herein, Defendants have used

copyright infringing, false advertising, false representations, false designations of origin and

misbranding, not only in trade and general media forums, but at the physical and electronic point

of sale of its products and services and the physical and electronic point of solicitation for

investment and financial support from third parties.

Defendants’ Extension of their Unlawful Copying, False Advertising,


False Representations, Misbranding and Unfair Competition
Across Multiple Social Media & E-Commerce Platforms

79. On information and belief, Defendants have adopted and prominently used

copyright infringing depictions of product that are presented in a manner that constitute acts of

false advertising, false representation, false designation of origin, misbranding and unfair

competition. Defendants have engaged and continue to engage in such acts, as illustrated in the

banner of and throughout multiple social media and e-commerce platforms, such as for example,

Facebook (Exhibit 26), Twitter (Exhibit 27) and Linkedin (Exhibit 28). True and accurate

screenshots taken on May 10, 2021 of Defendant Dronedek LLC’s Facebook, Twitter and

Linkedin web pages are attached hereto, respectively, as Exhibit 26, Exhibit 27 and Exhibit 28.

80. On information and belief, a true and accurate copy of a uniform banner adopted

across these platforms appears below:

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81. On the left side of the banner shown above, the Dronedek logo is affixed directly

to the depicted product by conforming the orientation of the Dronedek logo to the angled left-

face of the street-side extension of the smart mailbox. In addition, the words DRONEDEK THE

SMART MAILBOX extends across the image, to further reinforce Defendants’ intent to convey

Dronedek as the source of the products shown in the image which is a false representation apart

from the image being an infringement of Plaintiff’s copyright.

82. On information and belief, Defendants caused another example infringing

advertisement and solicitation to appear beginning on or around May 10, 2021 across multiple

social media and e-commerce platforms. On information and belief, this example infringing

advertisement and solicitation appears in the lower right corner of Exhibit 26 (Facebook),

Exhibit 27 (Twitter) and Exhibit 28 (Linkedin) uses the oversized, visual stimulus of the

copyright infringing product depiction immediately below the Dronedek logo and trademark, all

of which appear in close association with the infringing banner positioned over the entire web

page.

83. True and accurate copies of other advertisements, which on information and belief

were authorized, approved and distributed by Defendants in 2021 are attached hereto as Exhibit

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29 (www.wefunder.com), Exhibit 30 (www.investibule.co), and Exhibit 31

(www.crowdlustro.com).

84. An excerpt from the Exhibit 29 advertisement appears below:

85. An excerpt from the Exhibit 31 advertisement appears below:

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86. On information and belief, Defendants’ unlawful acts as set forth herein also are

evidenced in the document which they created and distributed having the electronic filename

DRONEDEK_Presentation_v6.5. A true and accurate copy of this document is attached

hereto as Exhibit 32.

87. The depicted drone and smart mailbox from the “About” page on the

www.dronedek.com website and discussed herein, appears on three separate slides of Exhibit 32.

No other image appears more than once in the entirety of Exhibit 32.

88. Page 3 of Exhibit 32 contains the same text, arrow, and image of Paragraph 73

herein which appeared as a fixed display in Defendant Dronedek LLC’s both at the CES2020

trade show, but with a vertical banner at the left margin which displays the Dronedek logo and

the words DRONEDEK / SMART DELIVERY RECEPTICAL.

89. On Page 6 of Exhibit 32, it is stated that “DRONEDEK elite comes with it’s own

drone.”

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COUNT I

Copyright Infringement

(U.S. Copyright Reg. No. VA-242-684, Photograph 1, DSC_3428.jpg)

90. Plaintiffs reallege and incorporate by reference paragraphs 1-89 as if fully set

forth herein.

91. A complete application for Group Copyright Registration No. VA-242-684 with

deposit materials including Photograph 1 (DSC_3428) has been received and registered by the

Copyright Office in compliance with the Copyright Act, 17 U.S.C. §§ 101 et seq.

92. All deposit materials of Group Copyright Registration No. VA 2-242-684 are

photographs that are original works of authorship fixed in a tangible medium of expression.

93. Plaintiff is the owner by way of an agreement and assignment of all exclusive

rights under the U.S. Copyright Act in each of these deposit materials and in Group Copyright

Registration No. VA-242-684.

94. Defendants have had access to Photograph 1 (DSC_3428.jpg) through at least

Plaintiff’s website at www.valqari.com before the commencement of their infringing activities.

95. Defendants, without permission, have created and/or authorized and approved the

creation of works that are identical or nearly identical to, and/or that contain material of

substance and value from Photograph 1 (DSC_3428.jpg).

96. Defendants have reproduced, distributed, displayed and used, and caused others to

reproduce, distribute display and use the foregoing works, and continue to engage in the

foregoing acts, without license or permission and in violation of Plaintiff’s rights under the U.S.

Copyright 17 U.S.C. §§ 101 et seq.

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97. Defendants have incorporated and authorized and approved the incorporation of

the foregoing works into various materials, in print, electronically, and online, which materials

include company, product and service advertisements, marketing materials, solicitations,

presentations, announcements, and on websites including but not limited to www.dronedek.com

and on third party websites including but not limited to, Facebook, Twitter, Linkedin and

Wefunder, all without license or permission to do so.

98. Defendants’ acts as set forth above are knowing, deliberate and willful and have

caused and will continue to cause Plaintiff great and irreparable injury unless enjoined by this

Court. In the absence of injunctive relief, Plaintiff will have no adequate remedy at law.

Accordingly, Plaintiff is entitled to a temporary and permanent injunction in accordance with 17

U.S.C. §502.

99. Plaintiff is further entitled to recover from Defendants all damages, including

attorneys’ fees, it has sustained and will sustain, and any gains, profits and advantages obtained

by Defendants as a result of theirs acts of infringement alleged above. At present, the amount of

such damages, gains, profits and advantages cannot be fully ascertained by Plaintiff but are an

amount to be proven at trial.

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COUNT II

Copyright Infringement (rcvrConcept.jpg Image File)

100. Plaintiffs reallege and incorporate by reference paragraphs 1-99 as if fully set

forth herein.

101. A complete application for Copyright Registration No. VA-2-250-684 with

deposit material consisting of the rcvrConcept.jpg image file has been received and registered

by the Copyright Office in compliance with the Copyright Act, 17 U.S.C. §§ 101 et seq.

102. The deposit material for Copyright Registration No. VA 2-250-684 is a derivative

work that is an original work of authorship that is fixed in a tangible medium of expression.

103. Plaintiff is the owner by way of an agreement and assignment of all exclusive

rights under the U.S. Copyright Act in the derivative work rcvrConcept.jpg image file and the

registered claim as set forth in Copyright Registration No. VA-2-250-684.

104. Defendants have had access to the rcvrConcept.jpg image file through at least

Plaintiff’s website at www.valqari.com before the commencement of their infringing activities.

105. Defendants, without permission, have created and/or authorized and approved the

creation of works that are identical or nearly identical to, and/or that contain material of

substance and value from the rcvrConcept.jpg image file.

106. Defendants have reproduced, distributed, displayed and used, and caused others to

reproduce, distribute, display and use the foregoing works, and continue to engage in the

foregoing acts, without license or permission and in violation of Plaintiff’s rights under the U.S.

Copyright 17 U.S.C. §§ 101 et seq.

107. Defendants have incorporated and authorized and approved the incorporation of

the foregoing works into various materials, in print, electronically, and online, which materials

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include company, product and service advertisements, marketing materials, solicitations,

presentations, announcements, and on websites including but not limited to www.dronedek.com

and on third party websites including but not limited to, Facebook, Twitter, Linkedin and

Wefunder, all without license or permission to do so.

108. Defendants’ acts as set forth above are knowing, deliberate and willful and have

caused and will continue to cause Plaintiff great and irreparable injury unless enjoined by this

Court. In the absence of injunctive relief, Plaintiff will have no adequate remedy at law.

Accordingly, Plaintiff is entitled to a temporary and permanent injunction in accordance with 17

U.S.C. § 502.

109. Plaintiff is further entitled to recover from Defendants all damages, including

attorneys’ fees, it has sustained and will sustain, and any gains, profits and advantages obtained

by Defendants as a result of their acts of infringement alleged above. At present, the amount of

such damages, gains, profits and advantages cannot be fully ascertained by Plaintiff but are an

amount to be proven at trial.

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COUNT III

False Advertising, False Representations, False Designations of Origin,


Reverse Passing Off and Unfair Competition (15 U.S.C. §1125)

110. Plaintiffs reallege and incorporate by reference paragraphs 1-108 as if fully set

forth herein.

111. Defendants have stripped and/or removed Plaintiff’s trademark logo, branding

and source indicia from publicly available, visual depictions of Plaintiff’s branded products, and

incorporated such altered and manipulated materials into Dronedek advertising and promotional

materials.

112. Moreover, in the foregoing and other Dronedek advertising and promotional

materials, Defendants have falsely represented and have falsely designated Dronedek as a source

of, or the entity that has made or is making Plaintiff’s visually depicted, prototype products,

a. by misappropriating and misbranding Plaintiff’s visually depicted products,

b. by affixing Dronedek source indicia, including the Dronedek logo, the Dronedek

company name, and/or the Dronedek trademark directly on, across and/or beside

Dronedek’s unauthorized use of Plaintiff’s product photographs and images,

c. by embedding or otherwise using, without authorization, Plaintiff’s visually

depicted, products in Dronedek advertising and promotional materials, in

association with express and/or implied representations that falsely state or that

falsely suggest that Defendants makes, offers for sale, are source or sponsor of, or

stand behind Plaintiff’s visually depicted products, and

d. by embedding or otherwise using, without authorization, Plaintiff’s visually

depicted products in Dronedek advertising and promotional materials.

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113. Defendants’ foregoing acts are unlawful, improper and unethical and falsely

represent and falsely suggest the existence of physical or commercial ready product that it has

made or sourced, or is making or sourcing, or is capable of making or sourcing or that it stands

behind the quality and accomplishment reflected by and in such product.

114. Defendants engaged in the foregoing wrongful activities to enable, support and

advance, all in a wrongful manner, Defendants’ sponsored advertising, public communications

and overtures “to begin taking subscription orders”; to facilitate offering for sale and/or selling

Dronedek products and services; to advertise and promote the Dronedek brand, and to solicit

investment and/or promises to invest financially or with other forms of consideration, in

Dronedek and its activities, from and with customers, potential customers, investors, potential

investors and other interested parties.

115. With knowledge of Plaintiff, its source indicia, its participation in the drone

delivery and receiving technology and systems marketplace, and its status as a competitor to

Dronedek, Defendants have engaged in the foregoing activities, to wrongfully gain or to improve

through wrongful means its status, reputation, and the perception of its technical capabilities,

accomplishments and product and service offerings, independent of and relative to those of

Valqari LLC.

116. Defendants have engaged in the foregoing activities with knowledge and intent as

to their improper, wrongful and unlawful nature.

117. Plaintiff is further entitled to recover from Defendants all damages, including

attorneys’ fees, it has sustained and will sustain, and any gains, profits and advantages obtained

by Defendants as a result of their wrongful acts alleged above. At present, the amount of such

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damages, gains, profits and advantages cannot be fully ascertained by Plaintiff but are an amount

to be proven at trial.

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COUNT IV

UNFAIR COMPETITION UNDER INDIANA COMMON LAW

118. Plaintiff realleges and incorporates the allegations of paragraphs 1-115 above, as

if set forth fully at length herein.

119. Plaintiff has a property right and interest in its images.

120. Defendants have made and continue to make material, false and a misleading

representations and statements, as set forth herein, in advertising and promotional materials and

communications and in solicitations to customers, potential customers, investors, potential

investors, and other interested parties.

121. By engaging in the conduct detailed above, Defendants have knowingly engaged

in unlawfully passing off and/or attempting to pass off Plaintiff’s products or services as

Defendants’ own products or services in violation of Plaintiff’s property rights and Indiana law.

Defendants’ conduct constitutes, among other things, unfair competition under common law in

Indiana.

122. Defendants have benefitted financially from its unfair competition.

123. Defendants’ unfair competition have caused and is continuing to cause irreparable

injury and damage to Plaintiff in an amount not yet capable of determination. Unless restrained,

Defendants will cause further irreparable injury, leaving Plaintiff with no adequate remedy at

law.

124. Plaintiff is entitled to damages and injunctive relief against Defendants,

restraining further unfair competition.

125. Plaintiff is further entitled to recover from Defendants all damages, including

attorneys’ fees, it has sustained and will sustain, and any gains, profits and advantages obtained

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by Defendants as a result of their wrongful acts alleged above. At present, the amount of such

damages, gains, profits and advantages cannot be fully ascertained by Plaintiff but are an amount

to be proven at trial.

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PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays that the Court enter a judgment in favor of Plaintiff as follows:

(1) That judgment enter in favor of Plaintiff and against all Defendants on all counts, with

said judgment including an equitable accounting of all of Defendants’ sales and revenues relating

to its illegal conduct;

(2) That Defendants and their directors, officers, employees, attorneys, agents, and all

persons in active concert or participation with any of the foregoing be preliminarily and

permanently enjoined from further acts of copyright infringement, unfair competition, false and

misleading commercial activity, falsely designating the origin of Defendant's and Plaintiff’s

products, and deceptive trade practices pursuant to 15 U.S.C.§1116, 17 U.S.C.§502, and the

Court's inherent and equitable powers;

(3) That Defendants be required to pay any and all damages sustained by Plaintiff and

Defendants’ profits or, at Plaintiff’s option, statutory damages in the greatest amount allowable

under law due to the willful nature of the infringement pursuant to 17 U.S.C.§504;

(4) That, pursuant to 17 U.S.C. 503, the Court order an impounding of all copies made in

violation of Plaintiff’s exclusive rights pursuant to 17 U.S.C.§503;

(5) That Defendants be required to pay (a) any and all damages sustained by Plaintiff, (b)

Defendants’ profits, (c) three times actual damages as additional compensation, (d) additional

sums as the Court may deem just, according to the circumstances of the case, and (e) costs of the

action, pursuant to 15 U.S.C.§1117;

(6) That, pursuant to 15 U.S.C.§1118, all products, advertisements, packaging,

promotional materials or any other materials reflecting the false advertising, false designation of

origin, or misrepresentation of facts in any communication, advertising, promotional material or

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announcement relating to Defendants be "delivered up" by Defendants and "destroyed,” and all

websites owned or controlled by Defendants or that Defendants have otherwise caused to

distribute or display the foregoing materials be modified to delete the false designation of origin

and misrepresentation of facts relating to Defendants’ products and services;

(7) That punitive damages in an amount necessary to deter Defendants from future acts of

unfair competition be imposed;

(8) That this case be declared exceptional in nature under 15 U.S.C.§1117;

(9) That Plaintiff be awarded its reasonable attorney fees pursuant to 15 U.S.C.§1117 and

17 U.S.C.§505;

(10) That Plaintiff be awarded all of its costs and expenses in prosecuting this matter;

(11) That Plaintiff be awarded pre and post-judgment interest to the full extent allowable

under law; and

(12) That Plaintiff be awarded such other and further relief as the Court may deem

equitable.

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DEMAND FOR JURY TRIAL

Pursuant to Federal Rule of Civil Procedure 38, Plaintiffs demand a jury trial on all issues triable

of right by a jury.

Dated: June 15, 2021

/s/ Deborah Pollack-Milgate


Deborah Pollack-Milgate, No. 22475-49
E. Sahara Williams, No. 36282-49
BARNES & THORNBURG LLP
11 South Meridian Street
Indianapolis, Indiana 46204-3535
Telephone: (317) 231-7339
Email: dpollackmilgate@btlaw.com
Email: sahara.williams@btlaw.com

/s/ Louis J. Alex


Louis J. Alex (IL 6274458) pro hoc vitae pending
COOK ALEX LTD.
200 West Adams Street, Suite 2004
Chicago, Illinois 60606
Telephone (312) 236-8500
Email: lalex@cookalex.com

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CERTIFICATE OF SERVICE

I hereby certify that on June 15, 2021, I caused a copy of the foregoing document to be

served electronically on all counsel of record via operation of the Court’s CM/ECF system.

/s/ Deborah Pollack-Milgate


Deborah Pollack-Milgate

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