1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Jeffrey G. Sheldon (SBN 67516) jgsheldon@usip.com William D. Bowen (SBN 254398) william.bowen@usip.com SHELDON MAK & ANDERSON PC 100 Corson Street, Third Floor Pasadena, CA 91103-3842 Telephone: (626) 796-4000 Facsimile: (626) 795-6321 Anthony R. Zeuli (MN Bar 274884) tzeuli@merchantgould.com MERCHANT & GOULD, P.C. 3200 IDS Center 80 South 8th Street Minneapolis, MN 55402-2215 Telephone: (612) 332-5300 Facsimile: (612) 332-9081 Attorneys for Plaintiff THE TORO COMPANY UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION

THE TORO COMPANY, a Delaware corporation, Plaintiff, vs. ABR ENTERPRISES, INC., a New York corporation, Defendants.

Case No. 5:14CV-705 COMPLAINT FOR PATENT INFRINGEMENT AND UNFAIR COMPETITION REQUEST FOR JURY TRIAL

COMPLAINT; REQUEST FOR JURY TRIAL

Plaintiff The Toro Company, a Delaware corporation (Plaintiff), by and

2 through its attorneys, for its complaint against ABR Enterprises, Inc., a New York 3 corporation, alleges as follows: 4 5 6 1. PARTIES Plaintiff The Toro Company, is a corporation organized and existing

7 under the laws of the State of Delaware with a principal place of business at 5825 8 Jasmine Street, Riverside, CA 92504. 9 2. Upon information and belief, defendant ABR Enterprises, Inc. 10 (Defendant), is a corporation organized and existing under the laws of the State 11 of New York with its principal place of business at 240 East 86th Street, #17L, 12 New York, New York, 10028. 13 14 15 3. JURISDICTION AND VENUE This is a claim of patent infringement arising under the Acts of

16 Congress relating to patents, 35 U.S.C. 101, 171, 271, 281-285, and 289, a 17 claim for unfair competition brought pursuant to the Lanham Act, 15 U.S.C. 18 1125(a) and/or (b), a claim for unfair competition under Cal. Bus. & Prof. Code 19 17500 et seq. and common law unfair competition. 20 4. This Court has jurisdiction pursuant to 28 U.S.C. 1331 and 1338 as 21 the Complaint states a claim for relief based upon a federal question under the 22 Patent Laws and jurisdiction under 15 U.S.C. 1121 of the Lanham Act. The 23 Court has pendent and supplemental jurisdiction over Plaintiffs state and common 24 law claims under 28 U.S.C. 1338(b) and 1367 in that such claims are joined with 25 substantial and related claims under the Patent and Lanham Act of the United 26 States. 27 5. Venue is proper in this District under 28 U.S.C. 1391(b)(1), 28 1391(b)(2), 1391(d), and/or 1400(b). Upon information and belief, Defendant
COMPLAINT; REQUEST FOR JURY TRIAL 1

1 regularly conducts business in this District. Upon information and belief, 2 Defendant has sold infringing products in this District through its website, 3 http://www.abrenter.com/. 4 5 6 6. FACTS On September 9, 2013, the Toro Company filed a Complaint in the

7 United States District Court for the Central District of California Eastern Division 8 against The Dcor Group, Inc. (TDG) for infringement of the Toro Companys 9 patents, including U.S. Patent Nos. D563,588 and D519,662, herein asserted 10 below. 11 7. On March 13, 2014, the Court entered a Consent Judgment and 12 Permanent Injunction in which the Court held that the Toro Patents, including 13 D563,588 and D519,662, are valid and enforceable in all respects. The Consent 14 Judgment and Permanent Injunction is attached as Exhibit A. 15 8. Since 1995, Unique Lighting Systems has been a leader and innovator 16 in outdoor lighting products and installations. The Toro Company acquired certain 17 assets of Unique Lighting Systems including its patents related to certain designs 18 for outdoor light fixtures. 19 9. Upon information and belief, Defendant hired a former salesman of 20 Unique Lighting Systems who was employed by Unique Lighting Systems for four 21 years and was familiar with the outdoor lighting designs of Unique Lighting 22 Systems, including the design covered by Toros patents. 23 10. Upon information and belief, Defendant copied Toros patented light 24 fixture designs and had them manufactured in China and exported to the United 25 States for sale to customers within the United States, including in this jurisdiction. 26 11. Upon information and belief, Defendant represents to customers that 27 the infringing products are manufactured in China at the same facility as Plaintiffs 28 1 3
COMPLAINT; REQUEST FOR JURY TRIAL

1 patented products, claiming the infringing products are identical in quality and 2 kind as they come from the same manufacturing source as Plaintiffs products. 3 12. However, Defendants infringing products do not come from the same 4 manufacturing source and are not of the same quality and kind as Plaintiffs 5 original products. 6 13. Upon information and belief, Defendant, in violation of 19 U.S.C. 7 1304 (the Tariff Act), fails to label the goods as Made in China as required 8 by law and instead sells its products without such labeling, deceiving customers 9 into believing that the infringing products are manufactured in the United States. 10 14. Upon information and belief, all of this conduct is likely to or did 11 cause confusion, mistake or deception among consumers regarding the affiliation, 12 connection or association of the Defendant and/or the origin, sponsorship or 13 approval of their goods or services, and/or misrepresented the nature, 14 characteristic, qualities or geographic origin of their goods. As such, all this 15 conduct violates the Lanham Act, 15 U.S.C. 1125 and constitutes unfair 16 competition under state and common law. Such conduct has caused Plaintiff 17 irreparable harm and substantial damages and Plaintiff hereby sues for injunctive 18 relief and a monetary recovery. 19 15. Unless these infringing acts by Defendant are restrained by this Court, 20 they will cause irreparable injury to Plaintiff and to the public, for which there is 21 no adequate remedy at law. 22 23 24 25 16. FIRST CAUSE OF ACTION INFRINGEMENT OF U.S. PATENT NO. D563,588 Plaintiff restates and re-alleges the allegations set forth in paragraphs

26 1 through 15 of this Complaint and incorporates them by reference as though fully 27 set forth herein. 28 1 3
COMPLAINT; REQUEST FOR JURY TRIAL

17.

On March 4, 2008, U.S. Patent No. D563,588 (the 588 Patent)

2 entitled Lighting Fixture was duly and legally issued to Nate Mullen. Plaintiff is 3 the owner, by assignment, of the entire right, title, and interest in and to the 588 4 Patent and has been throughout the period of Defendants infringement and still is 5 the owner thereof. The 588 Patent is attached as Exhibit B. 6 18. Defendant has imported, made, used, sold, and/or offered for sale 7 products that infringe the 588 Patent, including at least El Greco, Product Number 8 SDL-01, and will continue to do so unless enjoined by this court. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 3
COMPLAINT; REQUEST FOR JURY TRIAL

U.S. Patent No. D563,588 19.

El Greco SDL-01

The ordinary observer with knowledge of the prior art, giving such

attention to the design as a purchaser would give, is likely to confuse the designs of the infringing El Greco product for the designs shown in the 588 Patent because Defendants infringing product is substantially similar and/or equivalent in design and effect to the 588 Patent. 20. Plaintiff has complied with the notice requirement by marking or by at

least the filing of this Complaint. 21. Defendants making, selling, offering for sale, using or importing in

the United States the El Greco product directly infringes the 588 Patent.

22.

Defendant employed at least one person who formerly worked for

2 Plaintiff and who has knowledge of its patents. Defendants infringement is and 3 has been willful and deliberate. 4 23. Plaintiff has been damaged by Defendants infringement of the 588 5 Patent and will continue to be damaged in the future unless Defendant is 6 permanently enjoined from infringing the 588 Patent. 7 8 9 10 24. SECOND CAUSE OF ACTION DIRECT INFRINGEMENT OF U.S. PATENT NO. D519,662 Plaintiff restates and re-alleges the allegations set forth in paragraphs

11 1 through 23 of this Complaint and incorporates them by reference as though fully 12 set forth herein. 13 25. On April 25, 2006, U.S. Patent No. D519,662 (the 662 Patent) 14 entitled Probe Lighting Fixture was duly and legally issued to Nate Mullen. 15 Plaintiff is the owner, by assignment, of the entire right, title, and interest in and to 16 the 662 Patent and has been throughout the period of Defendants infringement 17 and still is the owner thereof. The 662 Patent is attached as Exhibit C. 18 26. Defendant has imported, used, sold, and/or offered for sale products 19 that infringe the 662 Patent, including at least Pontormo, Product Number DL-02, 20 and will continue to do so unless enjoined by this court. 21 22 // 23 // 24 // 25 // 26 // 27 // 28 // 1 3
COMPLAINT; REQUEST FOR JURY TRIAL

1 2 3 4 5 6 7 8 9 10 27. U.S. Patent No. D519,662 Pontormo DL-02

The ordinary observer with knowledge of the prior art, giving such

11 attention to the design as a purchaser would give, is likely to confuse the designs of 12 the infringing Pontormo product for the designs shown in the 662 Patent because 13 Defendants infringing product is substantially similar and/or equivalent in design 14 and effect to the 662 Patent. 15 28. Plaintiff has complied with the notice requirement by marking or by at 16 least the filing of this Complaint. 17 29. Defendants making, selling, offering for sale, using or importing in 18 the United States the Pontormo product directly infringes the 662 Patent. 19 30. Defendant employed at least one person who formerly worked for 20 Plaintiff and who has knowledge of its patents. Defendants infringement is and 21 has been willful and deliberate. 22 31. Plaintiff has been damaged by Defendants infringement of the 662 23 Patent and will continue to be damaged in the future unless Defendant is 24 permanently enjoined from infringing the 662 Patent. 25 26 // 27 // 28 // 1 3
COMPLAINT; REQUEST FOR JURY TRIAL

1 2 3 32.

THIRD CAUSE OF ACTION INFRINGEMENT OF U.S. PATENT NO. 6,981,679 Plaintiff restates and re-alleges the allegations set forth in paragraphs

4 1 through 31 of this Complaint and incorporates them by reference as though fully 5 set forth herein. 6 33. On January 3, 2006, U.S. Patent No. 6,981,679 entitled Mounting 7 Bracket for Light Fixture (the 679 Patent) was duly and legally issued to Nate 8 Mullen. Plaintiff is the owner, by assignment, of the entire right, title, and interest 9 in and to the 679 Patent and has been the owner of the patent throughout the 10 period of Defendants infringement and still is the owner thereof. The 679 Patent 11 is attached as Exhibit D. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U.S. Patent No. 6,981,679 Fig. 1 34. Base-C

Defendant has directly infringed and is still directly infringing the

679 Patent by manufacturing, selling, and/or using the Base C mounting bracket that infringes the 679 Patent, and will continue to do so unless enjoined by this court. 35. Plaintiff has complied with the notice requirement by marking or by at

least the filing of this Complaint. 36. Defendants making, selling, offering for sale, using or importing in

the United States the Base C mounting bracket directly infringes one or more claims of the 679 Patent. 1 COMPLAINT; REQUEST FOR JURY TRIAL 3 7

37.

Defendant employed at least one person who formerly worked for

2 Plaintiff and who has knowledge of its patents. Defendants infringement is and 3 has been willful and deliberate 4 38. Plaintiff has been damaged by Defendants infringement of the 679 5 Patent and will continue to be damaged in the future unless Defendant is 6 permanently enjoined from infringing the 679 Patent. 7 8 9 10 39. FOURTH CAUSE OF ACTION UNFAIR COMPETITION UNDER THE LANHAM ACT Plaintiff restates and re-alleges the allegations set forth in paragraphs

11 1 through 38 of this Complaint and incorporates them by reference as though fully 12 set forth herein. 13 40. The acts of Defendants complained of herein constitute unfair 14 competition in violation of Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a) 15 and/or (b). 16 17 18 19 41. FIFTH CAUSE OF ACTION STATE UNFAIR COMPETITION Plaintiff restates and re-alleges the allegations set forth in paragraphs

20 1 through 40 of this Complaint and incorporates them by reference as though fully 21 set forth herein. 22 42. Defendant, by doing the acts alleged herein, has acted in violation of 23 Cal. Bus. & Prof. Code 17500 et seq. and has thereby engaged in unfair and 24 unlawful business practices. 25 43. Defendants unfair and unlawful business practices in violation of Cal. 26 Bus. & Prof. Code 17200 et seq. have caused substantial injury to plaintiff and 27 are continuing to cause substantial injury. Plaintiff has no adequate remedy at law 28 for these injuries. Unless Defendant is restrained by this Court from continuing its 1 3
COMPLAINT; REQUEST FOR JURY TRIAL

1 unfair and unlawful business practices in violation of Cal. Bus. & Prof. Code 2 17200 et seq., these injuries will continue to accrue. Pursuant to Cal. Bus. & Prof. 3 Code 17204, Plaintiff is entitled to preliminary and permanent injunctive relief 4 against Defendants unfair and unlawful business practices constituting statutory 5 unfair competition in violation of Cal. Bus. & Prof. Code 17200 et seq. 6 7 8 9 44. SIXTH CAUSE OF ACTION COMMON LAW UNFAIR COMPETITION Plaintiff restates and re-alleges the allegations set forth in paragraphs

10 1 through 43 of this Complaint and incorporates them by reference as though fully 11 set forth herein. 12 45. Defendants conduct constitutes common law unfair competition in 13 violation of Toros rights. 14 46. Defendants acts were fraudulent, oppressive, malicious, and were 15 taken in willful, deliberate and/or intentional disregard of Toros rights. 16 47. As a direct and proximate result of Defendants unfair competition 17 Toro has suffered and will continue to suffer damage and irreparable harm if 18 Defendants conduct is not enjoined. 19 20 21 22 23 24 25 26 27 28 1 3
COMPLAINT; REQUEST FOR JURY TRIAL

PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for the following relief: A. B. C. D. A judgment that Defendant infringed U.S. Patent No. D563,588; A judgment that Defendant infringed U.S. Patent No. D519,662; A judgment that Defendant infringed U.S. Patent No. 6,981,679; A judgment that Defendants acts constituted unfair competition;

E.

An injunction enjoining and restraining Defendant, its officers,

2 directors, agents, servants, employees, franchisees, and all others acting under or 3 through it, directly or indirectly, from infringing U.S. Patent No. D563,588; 4 F. An injunction enjoining and restraining Defendant, its officers, 5 directors, agents, servants, employees, franchisees, and all others acting under or 6 through it, directly or indirectly, from infringing U.S. Patent No. D519,662; 7 G. An injunction enjoining and restraining Defendant, its officers, 8 directors, agents, servants, employees, franchisees, and all others acting under or 9 through it, directly or indirectly, from infringing U.S. Patent No. 6,981,679; 10 J. An injunction enjoining and restraining Defendant, its officers, 11 directors, agents, servants, employees, franchisees, and all others acting under or 12 through it, directly or indirectly, from selling or offering for sale any confusingly 13 similar copies of Plaintiffs proprietary Product design; 14 K. An injunction enjoining and restraining Defendant from exporting to 15 and/or importing into the United States any good that does not bear a prominent 16 and permanent label on the product which states at least the name of the 17 manufacturer and the county or manufacturer (i.e., Made in China); 18 L. An injunction enjoining and restraining Defendant from falsely 19 advertising, selling or promoting its products as coming from the same source as 20 Toros products or that they are of the same kind or quality or any other unfair 21 competition; 22 M. An order directing that Defendant deliver to Plaintiff for destruction 23 all of Defendants Chinese manufactured light fixtures imported into the United 24 States and in its possession, custody or control that do not bear the prominent and 25 permanent county of origin label; 26 N. A judgment and order requiring Defendant to pay damages, including 27 treble damages for willful infringement and punitive damages, with interest; 28 1 3
COMPLAINT; REQUEST FOR JURY TRIAL

10

O.

A judgment and order requiring Defendant to pay costs and attorneys

2 fees; and 3 P. Such other and further relief as this Court may deem just and 4 equitable. 5 6 7 Dated: April 10, 2014 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 3
COMPLAINT; REQUEST FOR JURY TRIAL

Respectfully submitted, SHELDON MAK & ANDERSON PC By: /s/ Jeffrey G. Sheldon Jeffrey G. Sheldon William D. Bowen

Attorneys for Plaintiff THE TORO COMPANY

11

1 2 3 4 issues so triable. 5 6 7 8 Dated: April 10, 2014 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 3

REQUEST FOR A JURY TRIAL Pursuant to Fed.R.Civ.P. 38(b), Plaintiff hereby requests a trial by jury of all

Respectfully submitted, SHELDON MAK & ANDERSON PC By: /s/ Jeffrey G. Sheldon Jeffrey G. Sheldon William D. Bowen

Attorneys for Plaintiff THE TORO COMPANY

COMPLAINT; REQUEST FOR JURY TRIAL

12