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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA BLUE GENTIAN, LLC, a Florida limited liability company, Plaintiff,

v. MAGIXHOSE, a Texas unincorporated business entity, Defendant. ______________________________/ COMPLAINT FOR PATENT INFRINGEMENT AND FALSE DESIGNATION OF ORIGIN Plaintiff, BLUE GENTIAN, LLC, sues Defendant, MAGIXHOSE, for Patent Infringement under the Patent Act and for False Designation of Origin under the Lanham Act, and complains as follows: JURISDICTION AND VENUE 1. This is an action for Patent Infringement under the Patent Act, 35 U.S.C. 271,

and for False Designation of Origin under the Lanham Act, 15 U.S.C. 1125(a). 2. 1338(a). 3. This court has personal jurisdiction over Defendant pursuant to Fla. Stat. Ch. This court has subject matter jurisdiction of this action pursuant to 28 U.S.C.

48.193(1) by virtue of its transaction of business within the State of Florida, the sale of the accused infringing product therein, including sales via Defendants interactive website, and its unauthorized use of trademarks confusingly similar to Plaintiffs trademarks in the marketing and sale thereof as constituting tortious acts within the State of Florida.

4.

Venue is proper in this District, pursuant to 28 U.S.C. 1391(b & c) and

1400(b), because the Defendant is subject to personal jurisdiction in the District, has committed acts of Patent Infringement in the District and because a substantial part of the events giving rise to this claim for False Designation of Origin occurred within the District. THE PARTIES 5. Plaintiff is a Florida limited liability company having its principal place of

business at 223 Skylark Point, Jupiter, Florida. 6. Upon information and belief, Defendant is a Texas unincorporated business entity

having its principal place of business at 4801 Richmond Avenue, # 207, Houston, Texas. BACKGROUND 7. Plaintiffs principal, Michael Berardi, has conceived and invented a novel hose

product that is light in weight, does not kink when unwrapped or uncoiled, and can be substantially reduced in length and width when not in use simply by turning off the flow of water into it. 8. Plaintiff is the owner of all intellectual property rights in connection with the

novel hose product invented by Berardi including, without limitation, the patent and trademark rights asserted in this Complaint. 9. Plaintiff is the owner of U.S. Patent No. 8,291,941, entitled Expandable and

Contractible Hose (the 941 Patent). A copy of the 941 Patent is attached as Exhibit A hereto. 10. Plaintiff is the owner of U.S. Patent No. 8,291,942, entitled Expandable Hose

Assembly (the 942 Patent). A copy of the 942 Patent is attached as Exhibit B hereto.

11.

Indicative of the ingenuity and popularity of Plaintiffs hose product, Defendant

has quickly and unfairly entered the market by promoting a knock-off hose product embodying the inventions protected under the 941 and 942 Patents. Such product is promoted under a trademark confusingly similar to Plaintiffs trademark. 12. Since at least as early as March 24, 2012, Plaintiff has adopted and used the

trademark XHOSE in interstate commerce in connection with the marketing and sale of its novel hose product that is the subject of the 941 and 942 Patents. Plaintiff owns a pending federal trademark application to register the XHOSE mark, which is scheduled to issue on October 30, 2012, after which time Plaintiff intends to amend Count IV of this Complaint to allege Federal Trademark Infringement pursuant to 15 U.S.C. 1114(1) in connection with this mark. An example of Plaintiffs use of the XHOSE mark is attached as Exhibit C hereto. 13. Plaintiff has acquired substantial goodwill in the XHOSE mark, as evidenced

by overwhelming consumer demand in multiple channels of trade in the United States and worldwide for its novel hose product. 14. Subsequent to Plaintiffs adoption and first use of the XHOSE mark, Defendant

began using a confusingly similar mark, MAGIXHOSE, in interstate commerce in connection with the marketing and sale of a hose product that is a knock-off of Plaintiffs hose product. The term MAGIXHOSE is simply XHOSE with additional word elements. Also, like Plaintiffs mark, Defendants mark prominently features the letter X before the word hose in actual use. A print-out of Defendants website, www.magixhose.com, demonstrating such use is attached as Exhibit D hereto. 15. Indicative and in furtherance of Defendants intent to simply copy the novel

product and marketing for which Plaintiff has invested significant time, effort and expense,

Defendant has also copied Plaintiffs instructions for using the product. Copies of Plaintiffs and Defendants respective product instructions, attached as composite Exhibit E hereto, demonstrate Defendants copying of Plaintiffs instructions. COUNT I DIRECT PATENT INFRINGEMENT (941 Patent) 16. This Count alleges direct Patent Infringement of the 941 Patent against

Defendant, pursuant to 35 U.S.C. 271(a). Plaintiff repeats and realleges Paragraphs 1-11 and 15 above. 17. Defendant has infringed and is still infringing one or more claims of the 941

Patent by making, using, selling and offering to sell a hose product which embodies the invention protected under the 941 Patent, under the MAGIXHOSE mark, and will continue to do so unless enjoined by this Court. 18. Defendants acts of infringement have occurred, are occurring and will continue

to occur without the authority or license of Plaintiff. These infringing acts have caused, are causing and will continue to cause injury to Plaintiff, including irreparable injury and damages, unless and until Defendant is enjoined from doing so by this Court. COUNT II CONTRIBUTORY PATENT INFRINGEMENT (941 Patent) 19. This Count alleges contributory Patent Infringement of the 941 Patent against

Defendant, pursuant to 35 U.S.C. 271(c). Plaintiff repeats and realleges Paragraphs 1-11 and 15 above. 20. 941 Patent. Defendant has contributorily infringed and continues to contributorily infringe the

21.

Defendants customers, by using Defendants accused MAGIXHOSE hose

product, have directly infringed and continue to directly infringe one or more claims of the 941 Patent. 22. Defendant has sold and offered to sell the accused MAGIXHOSE hose product

for use in practicing the patented method claimed in one or more claims of the 941 Patent, and has done so with knowledge that the product is especially made or adapted for use in an infringement of the 941 Patent. 23. Defendants MAGIXHOSE hose product is not a staple article of commerce

suitable for substantial non-infringing use. 24. Defendants acts of infringement have occurred, are occurring and will continue

to occur without the authority or license of Plaintiff. These infringing acts have caused, are causing and will continue to cause injury to Plaintiff, including irreparable injury and damages, unless and until Defendant is enjoined from doing so by this Court. COUNT III DIRECT PATENT INFRINGEMENT (942 Patent) 25. This Count alleges direct Patent Infringement of the 942 Patent against

Defendant, pursuant to 35 U.S.C. 271(a). Plaintiff repeats and realleges Paragraphs 1-11 and 15 above. 26. Defendant has infringed and is still infringing one or more claims of the 942

Patent by making, using, selling and offering to sell a hose product which embodies the invention protected under the 942 Patent, under the MAGIXHOSE mark, and will continue to do so unless enjoined by this Court.

27.

Defendants acts of infringement have occurred, are occurring and will continue

to occur without the authority or license of Plaintiff. These infringing acts have caused, are causing and will continue to cause injury to Plaintiff, including irreparable injury and damages, unless and until Defendant is enjoined from doing so by this Court. COUNT IV FALSE DESIGNATION OF ORIGIN (XHOSE) 28. This Count alleges false designation of origin against Defendant, pursuant to 15

U.S.C. 1125(a). Plaintiff repeats and realleges Paragraphs 1-8 and 11-15 above. 29. Since prior to the actions of Defendant alleged herein, Plaintiff has established

common-law trademark rights throughout the United States in its XHOSE mark, and variations thereof, as a result of its adoption and continuous use thereof in interstate commerce. 30. Defendants marketing and sales of a hose product bearing the MAGIXHOSE

mark is likely to cause confusion, mistake or deception as to Defendants affiliation, connection or association with Plaintiff, or as to the origin, sponsorship or approval of Defendants products, services or commercial activities. 31. Defendants unauthorized use of the MAGIXHOSE mark constitutes a false

designation of origin in violation of 15 U.S.C. 1125(a). 32. As a result of Defendants marketing and sales of its hose product bearing a false

designation of origin, Plaintiff has suffered damages in an amount to be determined at trial. 33. As a result of Defendants marketing and sales of its hose product bearing a false

designation of origin, Plaintiff has suffered irreparable injury to their business, reputation and goodwill. Plaintiff will continue to suffer irreparable injury unless Defendants misconduct is enjoined by the Court.

DEMAND FOR JURY TRIAL Plaintiff requests that all issues in this case be tried to a jury. WHEREFORE, Plaintiff prays that this Court: A. Enter judgment against Defendant for infringement of the 941 Patent and

permanently enjoin Defendant, its principals, officers, directors, agents, employees, subsidiaries, affiliates and all other persons in active concert or participation with them, from further acts of infringement, pursuant to 35 U.S.C. 283; B. Enter judgment against Defendant for infringement of the 942 Patent and

permanently enjoin Defendant, its principals, officers, directors, agents, employees, subsidiaries, affiliates and all other persons in active concert or participation with them, from further acts of infringement, pursuant to 35 U.S.C. 283; C. Enter judgment against Defendant for false designation of origin via Defendants

use of the MAGIXHOSE mark and permanently enjoin Defendant, its principals, officers, directors, agents, employees, subsidiaries, affiliates and all others in active concert and participation with them, individually and collectively, from (a) using in any manner the XHOSE mark or any other mark that is confusingly similar thereto; and (b) doing any act or thing likely to confuse or to deceive consumers into believing that there is some connection between Plaintiff and Defendant or between the parties respective products, services or commercial activities; D. Enter judgment for Plaintiff for an accounting as to all damages arising from

Defendants infringement of the 941 Patent; E. Enter judgment against Defendant for damages arising from the infringement of

the 941 Patent, pursuant to 35 U.S.C. 284;

F.

Enter judgment for Plaintiff for an accounting as to all damages arising from

Defendants infringement of the 942 Patent; G. Enter judgment against Defendant for damages arising from the infringement of

the 942 Patent, pursuant to 35 U.S.C. 284; H. Enter judgment that Defendant account for and disgorge to Plaintiff all of the

profits realized by Defendant, or other persons or entities acting in concert or participating with Defendant, resulting from Defendants acts of false designation of origin and unfair competition; I. Enter judgment ordering Defendant, pursuant to 15 U.S.C. 1116(a), to file with

this Court and serve upon Plaintiff within thirty (30) days after entry of the injunction, a report in writing under oath setting forth in detail the manner and form in which Defendant has complied with the injunction; J. Enter judgment ordering Defendant, pursuant to 15 U.S.C. 1118, to deliver up

for destruction all items bearing any trademark that is confusingly similar to the XHOSE mark; K. Enter judgment that this case is exceptional, under 35 U.S.C. 285, and that

Defendant reimburse Plaintiffs reasonable attorney fees and costs incurred in connection therewith; L. Enter judgment awarding Plaintiff treble damages or profits and an award of

attorney fees and the costs of this action, pursuant to 15 U.S.C. 1117(a); and M. appropriate. Enter judgment granting Plaintiff such other relief as this Court deems

Respectfully submitted, s/ Brian M. Taillon Edward F. McHale (Florida Bar No. 190300) Brian M. Taillon (Florida Bar No. 678635) McHALE & SLAVIN, P.A. 2855 PGA Boulevard Palm Beach Gardens, Florida 33410 Telephone: (561) 625-6575 Facsimile: (561) 625-6572 E-mail: litigation@mchaleslavin.com Attorneys for Blue Gentian, LLC

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