Dinesol v Avon Plastics - Complaint

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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIOEASTERN DIVISION

)

DINESOL PLASTICS, INC. )195 East Park Avenue )

Niles, Ohio 44446 )

Plaintiff, ))

v. ) Civil Action No.

)AVON PLASTICS, INC. )

d/b/a MASTER MARK )

PLASTIC PRODUCTS )

One Master Mark Drive )

Albany, Minnesota 56307 )Defendant. ) Jury Trial Demanded

)

COMPLAINT

The plaintiff, Dinesol Plastics, Inc. (“Dinesol”), for its complaint against

defendant, Avon Plastics, Inc., d/b/a Master Mark Plastic Products (“Master Mark”),

alleges as follows:

THE PARTIES

1. The plaintiff, Dinesol, is a corporation organized and existing under the

laws of the State of Ohio, having a principal place of business at 195 East Park Avenue,

Niles, Ohio 44446.

2. On information and belief, the defendant, Master Mark, is a corporation

organized under the laws of the State of Minnesota, having a principal place of business

at One Master Mark Drive, Albany, Minnesota 56307, and having sold its outdoor

landscape and garden products through retail outlets for resale to the general public in

the Northern District of Ohio, including Menards®

retail stores.

Case: 5:13-cv-01608-JRA Doc #: 1 Filed: 07/25/13 1 of 7. PageID #: 1



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JURISDICTION AND VENUE

3. This action arises under the patent laws of the United States, 35 U.S.C. § 1

et seq.

4. This Court has subject matter jurisdiction over this dispute pursuant to 28

U.S.C. §§ 1331, and 1338(a).

5. This Court may exercise personal jurisdiction over Master Mark based

upon its contacts with this forum, including, at least, regularly and intentionally doing

business with and through retail outlets here, including Menards®.

6. Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391(b)

and 1400(b).

GENERAL ALLEGATIONS – THE DINESOL DESIGN PATENTS

7. For many years, Dinesol has engaged in the development, manufacture,

and sale of a wide array of outdoor landscape and garden products.

8. Dinesol has taken steps to protect its innovative designs, including its

outdoor decorative-lattice designs. In particular, Dinesol owns various United States

design patents relating to its lattice designs. Relevant to this dispute, Dinesol is the

owner of all right, title, and interest to each of the United States design patents identified

in Table 1 (hereafter, the “Dinesol Design Patents”). A copy of each Dinesol Design

Patent is attached to this Complaint as indicated in Table 1.

Table 1: Dinesol Design PatentsUnited States

Design Patent Number

Issue Date of Patent Complaint Exhibit

D624,201 (‘201 patent) September 21, 2010 A

D651,722 (‘722 patent) January 3, 2012 B

D672,478 (‘478 patent) December 11, 2012 C




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GENERAL ALLEGATIONS – DEFENDANT’S INFRINGING ACTIVITIES

9. Without Dinesol’s authorization, Master Mark has offered for sale and

sold in the United States decorative-lattice having designs that are covered by the Dinesol

Design Patents (hereafter, the “Infringing Lattice”). Upon information and belief, Master

Mark knowingly and intentionally continues to sell the Infringing Lattice as a copy of

Dinesol’s lattice.

10. Charts 1, 2 and 3 below demonstrate Master Mark’s infringement by

comparing images of the Infringing Lattice sold by Master Mark with figures from the

Dinesol Design Patents.

Chart 1: Images Depicting Infringement of Dinesol’s Design Patent

D624,201 by the Master Mark Lattice

D624,201 Master Mark Lattice

FIG. 1

FIG. 2




4




FIG. 1

FIG. 2




FIG. 1

FIG. 3




5

FIG. 2

11. Defendant Master Mark has infringed and continues to infringe the

Dinesol Design Patents within the meaning of 35 U.S.C. §271(a), at least by making,

selling and offering to sell the Infringing Lattice without Dinesol’s authorization or

license.

12. Dinesol has sold and is currently selling its decorative-lattice bearing the

design claimed in the ‘201, ‘702 and ‘478 patents.

COUNT 1: PATENT INFRINGEMENT

13. Dinesol re-alleges each and every allegation set forth in paragraphs 1

through 12 above, inclusive, and incorporates them by reference herein.

14. Master Mark has made, offered to sell, and sold into the United States,

including the State of Ohio, and still is making, offering to sell, and selling herein

decorative-lattice having designs that infringe one or more of the Dinesol Design Patents

without Dinesol’s authorization.

15. Moreover, Master Mark has made, offered to sell, and sold into the United

States, including the State of Ohio, and still is making, offering to sell, and selling herein

decorative-lattice having designs that an ordinary observer, familiar with the prior art

designs, would be deceived into believing is the same as one or more of the Dinesol

Design Patents. 16. On information and belief, Master Mark’s infringement is intentional and




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willful, making this an exceptional case.

17. Dinesol has been and will continue to be irreparably harmed by Master

Mark’s infringement of the Dinesol Design Patents.

JURY DEMAND

Dinesol demands a trial by jury.

RELIEF SOUGHT

WHEREFORE, Dinesol respectfully prays for:

A. Judgment that Defendant Master Mark infringed the Dinesol Design

Patents in violation of 35 U.S.C. § 271(a);

B. An injunction against further infringement of the Dinesol Design Patents

by Defendant Master Mark, its agents, servants, employees, officers, and all others

controlled by them;

C. An award of damages adequate to compensate Dinesol for the patent

infringement that has occurred pursuant to 35 U.S.C. § 284, which shall be trebled as a

result of Defendant’s willful patent infringement, or an award of Master Mark’s profits

from its infringement pursuant to 35 U.S.C. § 289, whichever is greater, together with

prejudgment interest and costs;

D. An assessment of costs, including reasonable attorney fees, pursuant to 35

U.S.C. § 285, with prejudgment interest; and

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

Date: July 25, 2013 Respectfully submitted,

/Robert J. Herberger/ .




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Robert J. Herberger, Esq. - 0043848

Stuart A. Strasfeld, Esq. - 0012399David S. Barbee, Esq. - 0037248

R OTH, BLAIR , R OBERTS, STRASFELD & LODGE

100 East Federal Plaza, Suite #600

Youngstown, OH 44503-1893 (330)744-5211 (330)744-3184

[email protected]

[email protected]@roth-blair.com

Attorneys for Plaintiff

Dinesol Plastics, Inc.




S 44 (Rev. 12/12) CIVIL COVER SHEETThe 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, excep

rovided 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 theurpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant

(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OFTHE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

I. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for

(For Diversity Cases Only) and One Box for Defendan

’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF

Plaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4

of Business In This State

’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5

Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6

Foreign Country

V. NATURE OF SUIT (Place an “X” in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTE

’ 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 ’ 400 State Reapportionm

’ 130 Miller Act ’ 315 Airplane Product Product Liability ’ 690 Other 28 USC 157 ’ 410 Antitrust

’ 140 Negotiable Instrument Liability ’ 367 Health Care/ ’ 430 Banks and Banking

’ 150 Recovery of Overpayment ’ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS ’ 450 Commerce

& Enforcement of Judgment Slander Personal Injury ’ 820 Copyrights ’ 460 Deportation

’ 151 Medicare Act ’ 330 Federal Employers’ Product Liabi lity ’ 830 Patent ’ 470 Racketeer Influence

’ 152 Recovery of Defaulted Liability ’ 368 Asbestos Personal ’ 840 Trademark Corrupt Organizatio

Student Loans ’ 340 Marine Injury Product ’ 480 Consumer Credit

(Excludes Veterans) ’ 345 Marine Product Liability LABOR SOCIAL SECURITY ’ 490 Cable/Sat TV

’ 153 Recovery of Overpayment Liability PERSONAL PROPERTY ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) ’ 850 Securities/Commod

of Veteran’s Benefits ’ 350 Motor Vehicle ’ 370 Other Fraud Act ’ 862 Black Lung (923) Exchange

’ 160 Stockholders’ Suits ’ 355 Motor Vehicle ’ 371 Truth in Lending ’ 720 Labor/Management ’ 863 DIWC/DIWW (405(g)) ’ 890 Other Statutory Act

’ 190 Other Contract Product Liability ’ 380 Other Personal Relations ’ 864 SSID Title XVI ’ 891 Agricultural Acts

’ 195 Contract Product Liability ’ 360 Other Personal Property Damage ’ 740 Railway Labor Act ’ 865 RSI (405(g)) ’ 893 Environmental Mat

’ 196 Franchise Injury ’ 385 Property Damage ’ 751 Family and Medical ’ 895 Freedom of Inform

’ 362 Personal Injury - Product Liability Leave Act ActMedical Malpractice ’ 790 Other Labor Litigation ’ 896 Arbitration

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ’ 791 Employee Retirement FEDERAL TAX SUITS ’ 899 Administrative Proc

’ 210 Land Condemnation ’ 440 Other Civil Rights Habeas Corpus: Income Security Act ’ 870 Taxes (U.S. Plaintiff Act/Review or App

’ 220 Foreclosure ’ 441 Voting ’ 463 Alien Detainee or Defendant) Agency Decision

’ 230 Rent Lease & Ejectment ’ 442 Employment ’ 510 Motions to Vacate ’ 871 IRS—Third Party ’ 950 Constitutionality of

’ 240 Torts to Land ’ 443 Housing/ Sentence 26 USC 7609 State Statutes

’ 245 Tort Product Liability Accommodations ’ 530 General

’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 535 Death Penalty IMMIGRATION

Employment Other: ’ 462 Naturalization Application’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 465 Other Immigration

Other ’ 550 Civil Rights Actions

’ 448 Education ’ 555 Prison Condition

’ 560 Civil Detainee -

Conditions of

Confinement

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

’ 1 OriginalProceeding

’ 2 Removed fromState Court

’ 3 Remanded fromAppellate Court

’ 4 Reinstated or Reopened

’ 5 Transferred fromAnother District(specify)

’ 6 MultidistrictLitigation

VI. CAUSE OF ACTION

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

Brief description of cause:

VII. REQUESTED INCOMPLAINT:

’ CHECK IF THIS IS A CLASS ACTIONUNDER RULE 23, F.R.Cv.P.

DEMAND $ CHECK YES only if demanded in complaint

JURY DEMAND: ’ Yes ’ No

VIII. RELATED CASE(S)IF ANY

(See instructions):JUDGE DOCKET NUMBER

DATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

Case: 5:13-cv-01608-JRA Doc #: 1-1 Filed: 07/25/13 1 of 2. PageID #: 8

DINESOL PLASTICS, INC.195 East Park AvenueNiles, Ohio 44446

Trumbull

Robert J. Herberger, Esq.Roth, Blair, Roberts, Strasfeld & Lodge100 East Federal Plaza, Suite #600

AVON PLASTICS, INC. d/b/a MASTER MARPLASTIC PRODUCTSOne Master Mark Dr., Albany, Minnesota 563

Stearns

35 U.S.C. § 1 et seq.

Master Mark is selling in the US decorative-lattice having designs covered by (3) of Dinesol design patents

07/25/2013 /Robert J. Herberger/

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

. Civil Categories: (Please check one category only).

1. General Civil

2. Administrative Review/Social Security

3. Habeas Corpus Death Penalty

*If under Title 28, §2255, name the SENTENCING JUDGE:

CASE NUMBER:

I. RELATED OR REFILED CASES. See LR 3.1 which provides in pertinent part: "If an action is filed or removed to this Court

and assigned to a District Judge after which it is discontinued, dismissed or remanded to a State court, and

subsequently refiled, it shall be assigned to the same Judge who received the initial case assignment without regardfor

the place of holding court in which the case was refiled. Counsel or a party without counsel shall be responsible for

bringing such cases to the attention of the Court by responding to the questions included on the Civil Cover Sheet."

This action is RELATED to another PENDING civil case. This action is REFILED pursuant to LR 3.1.

f applicable, please indicate on page 1 in section VIII, the name of the Judge and case number.

II. In accordance with Local Civil Rule 3.8, actions involving counties in the Eastern Division shall be filed at any of the

divisional offices therein. Actions involving counties in the Western Division shall be filed at the Toledo office. For the

purpose of determining the proper division, and for statistical reasons, the following information is requested.

ANSWER ONE PARAGRAPH ONLY. ANSWER PARAGRAPHS 1 THRU 3 IN ORDER. UPON FINDING WHICH

PARAGRAPH APPLIES TO YOUR CASE, ANSWER IT AND STOP.

(1) Resident defendant. If the defendant resides in a county within this district, please set forth the name of suchcounty

COUNTY:

Corporation For the purpose of answering the above, a corporation is deemed to be a resident of that county in which

it has its principal place of business in that district.

(2) Non-Resident defendant. If no defendant is a resident of a county in this district, please set forth the county

wherein the cause of action arose or the event complained of occurred.COUNTY:

(3) Other Cases. If no defendant is a resident of this district, or if the defendant is a corporation not having a principle

place of business within the district, and the cause of action arose or the event complained of occurred outside

this district, please set forth the county of the plaintiff's residence.

COUNTY:

V. The Counties in the Northern District of Ohio are divided into divisions as shown below. After the county is

determined in Section III, please check the appropriate division.

EASTERN DIVISION

AKRON (Counties: Carroll, Holmes, Portage, Stark, Summit, Tuscarawas and Wayne)CLEVELAND (Counties: Ashland, Ashtabula, Crawford, Cuyahoga, Geauga, Lake,

Lorain, Medina and Richland)YOUNGSTOWN (Counties: Columbiana, Mahoning and Trumbull)

WESTERN DIVISION

TOLEDO (Counties: Allen, Auglaize, Defiance, Erie, Fulton, Hancock, Hardin, Henry,Huron, Lucas, Marion, Mercer, Ottawa, Paulding, Putnam, Sandusky, Seneca

VanWert, Williams, Wood and Wyandot)


STARK



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

U NITED STATES DISTRICT COURTfor the

__________ District of __________

)

))))))

Plaintiff

v. Civil Action No.

Defendant

SUMMONS IN A CIVIL ACTION

To: (Defendant’s 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 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s 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


Northern District of Ohio

Dinesol PLastics, Inc.

Avon Plastics, Inc. d/b/a Master Mark PlasticProducts

AVON PLASTICS, INC.d/b/a MASTER MARK

PLASTIC PRODUCTSOne Master Mark DriveAlbany, Minnesota 56307



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 individual’s 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 individual’s 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:Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc:


0.00

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EXHIBIT

“A”




EXHIBIT

“B”




EXHIBIT“C”


Dinesol v Avon Plastics - Complaint

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