Download pdf - Thule v. Mizco - Complaint

8/13/2019 Thule v. Mizco - Complaint

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No.

THULE ORGANIZATION SOLUTIONS, INC.

a Colorado corporation,

Plaintiff,

v.

MIZCO INTERNATIONAL, INC.a New Jersey corporation,

Defendant.

COMPLAINT AND JURY DEMAND

Plaintiff Thule Organization Solutions, Inc. ("Thule"), by and through its undersigned

attorneys, for its Complaint against Mizco International, Inc. ("Defendant" or "Mizco") states as

follows:

PARTIES

1. Thule is a Colorado corporation, having its principal place of business at 6303Dry Creek Parkway, Longmont, Colorado 80503.

2. Upon information and belief, Defendant is a corporation formed under the laws ofthe commonwealth of New Jersey with its principal place of business at 80 Essex Avenue East,

Avenel, New Jersey 07001.

Case 1:13-cv-03160 Document 1 Filed 11/20/13 USDC Colorado Page 1 of 5


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JURISDICTION AND VENUE

3. This is a civil action for patent infringement arising under the patent laws of theUnited States, 35 U.S.C. 101, et. seq.

4. This Court has jurisdiction over the subject matter of this action pursuant to 28U.S.C. 1331 and 1338(a).

5. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391 and 1400.GENERAL ALLEGATIONS

6. Thule incorporates herein by reference each and every allegation in paragraphs 1through 5.

7. U.S. Design Patent No. D592,400 ("the '400 Patent"), for a "Stretchable NotebookComputer Case," was duly and legally issued on May 19, 2009. A true and correct copy of the

'400 Patent is attached hereto as Exhibit 1. By assignment, Thule owns all right, title and interest

in and to the '400 Patent.

8. Upon information and belief, sometime after the '400 Patent issued, Mizco beganmanufacture of or instructed another party to manufacture a flexible storage sleeve like the one

shown and described in the '400 Patent.

9. Mizco has offered for sale and sold and continues to sell in the United Statesflexible storage sleeves that infringe the '400 Patent. Images of Mizco's flexible storage sleeve

are shown in Exhibit 2.

10. Upon information and belief, Mizco has offered to sell and has sold at least oneflexible storage sleeve that infringes the '400 Patent in the state of Colorado.

11. Thule, by correspondence dated February 14, 2013 and April 9, 2013, informed



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Mizco of its objection to Mizco offering and selling a flexible storage sleeve because of Thule's

rights in the '400 Patent. True and accurate copies of those letters are attached hereto as Exhibit 3.

To date, Mizco has not removed or recalled any of the infringing flexible storage sleeves.

CLAIM FOR RELIEF

(Infringement of the '400 Patent)

12. Thule incorporates herein by reference each and every allegation in paragraphs 1through 11.

13. Defendant's activities in making, using, selling and/or offering to sell in theUnited States and/or importing into the United States the flexible storage sleeve constitutes direct

infringement of the '400 Patent, in violation of 35 U.S.C. 271(a).

14. Upon information and belief, Defendant is inducing direct infringement of the'400 Patent by others by actively instructing, assisting, and/or encouraging others to practice one

or more of the inventions claimed in the '400 Patent, in violation of 35 U.S.C. 271(b).

15. Upon information and belief, Defendant is contributing to direct infringement ofthe '400 Patent by others by directing others to manufacture one or more components which

constitute a material part of the invention defined by the claims of the '400 Patent, knowing the

same to be especially made or especially adapted for use in an infringement of the '400 Patent,

and which components are not staple articles or commodities of commerce suitable for

substantial non-infringing use, in violation of 35 U.S.C. 271(c).

16. Defendant's actions of making, having made, importing, using or selling productswhich infringe the '400 Patent have been, and are, willful, deliberate and/or in conscious

disregard of Thule's rights, making this an exceptional case within the meaning of 35 U.S.C.

285 and entitling Thule to an award of its attorneys' fees and treble damages.



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17. Defendant's infringement of the '400 Patent has caused damage to Thule in anamount to be ascertained at trial.

18. Defendant's infringement of the '400 Patent has caused and will continue to causeirreparable injury to Thule, to which there exists no adequate remedy at law. Defendant's

infringement of the '400 Patent will continue unless enjoined by this Court.

PRAYER FOR RELIEF

WHEREFORE, Thule requests that judgment be entered in its favor and against

Defendant as follows:

A. Declaring that Defendant has infringed United States Design Patent No.

D592,400;

B. Issuing temporary, preliminary, and permanent injunctions enjoining Defendant,

its officers, agents, subsidiaries, and employees, and those in privity with or that act in concert

with any of the foregoing, from further activities that constitute infringement of United States

Design Patent No. D592,400, pursuant to 35 U.S.C. 283;

C. Awarding Thule damages arising out of Defendant's infringement of United

States Design Patent No. D592,400 in an amount not less than lost profits or for each act of

infringement, and trebling those damages pursuant to 35 U.S.C. 284, together with costs and

pre- and post-judgment interest;

D. Finding that this is an "exceptional case" within the meaning of 35 U.S.C. 285

and awarding reasonable attorneys' fees to Thule; and

E. Awarding Thule such further legal and equitable relief as the Court deems just

and proper.



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JURY DEMAND

Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Thule demands a trial by

jury on all issues so triable.

DATED: November 20, 2013 Respectfully submitted,

By: s/ Ian R. Walsworth

Todd P. [email protected]

Ian R. [email protected]

SHERIDAN ROSS P.C.1560 Broadway, Suite 1200

Denver, Colorado 80202-5141

Telephone: 303-863-9700Facsimile: 303-863-0223

E-mail: [email protected]

ATTORNEYS FOR PLAINTIFF

THULE ORGANIZATION SOLUTIONS, INC.



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Case 1:13-cv-03160 Document 1-1 Filed 11/20/13 USDC Colorado Page 1 of 4


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AO 440 (Rev. 12/09) Summons in a Civil Action

UNITED STATES DISTRICT COURTfor the

__________ District of __________

)

))))))

Plaintiff

v. Civil Action No.

Defendant

SUMMONS IN A CIVIL ACTION

To: (Defendants name and address)

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if youare the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.P. 12 (a)(2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 ofthe Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney,whose name and address are:

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.You also must file your answer or motion with the court.

CLERK OF COURT

Date:Signature of Clerk or Deputy Clerk


District of Colorado

Thule Organization Solutions, Inc.

Mizco International, Inc.

Mizco International, Inc.80 Essex Avenue East

Avenel, NJ 07001

Ian R. Walsworth

Sheridan Ross P.C.1560 Broadway, Suite 1200Denver, CO 80202Telephone: 303-863-9700E-mail: [email protected]


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AO 440 (Rev. 12/09) Summons in a Civil Action (Page 2)

Civil Action No.

PROOF OF SERVICE

(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on(date) .

I personally served the summons on the individual at(place)

on (date) ; or

I left the summons at the individuals residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date) , and mailed a copy to the individuals last known address; or

I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)

on (date) ; or

I returned the summons unexecuted because ; or

Other (specify):

.

My fees are $ for travel and $ for services, for a total of $ .

I declare under penalty of perjury that this information is true.

Date:Servers signature

Printed name and title

Servers address

Additional information regarding attempted service, etc:


0.00