IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION MACNEIL AUTOMOTIVE PRODUCTS

LIMITED, d/b/a WEATHERTECH, an Illinois Corporation, Plaintiff, v. KRAMER AMERICA, INC., a Florida Corporation; VANDAPAC COMPANY LIMITED, a Thailand Company; and POLGLOBE, L.L.C., a Michigan limited Liability company, d/b/a FAMILY CAR GEAR, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No.

JURY TRIAL DEMANDED

COMPLAINT Plaintiff, MacNeil Automotive Products Limited, by its undersigned attorneys, for its Complaint against defendants Kramer America, Inc., Polglobe, LLC, d/b/a Family Car Gear, and Vandapac Company Limited (collectively, Defendants) alleges as follows: NATURE OF THE ACTION 1. This is an action against Defendants for patent infringement, unfair competition,

unjust enrichment, federal unfair competition, copyright infringement, federal unfair competition, the Illinois Deceptive Trade Practices Act, and the Illinois Consumer Fraud and Deceptive Business Practices Act. PARTIES 2. Plaintiff MacNeil Automotive Products Limited (MacNeil) is a corporation

organized under the laws of the State of Illinois with a principal place of business located at 1

MacNeil Court, Bolingbrook, Illinois 60440.

MacNeil is a manufacturer and supplier of

automotive accessories including, among other things, vehicle floor trays and mats. 3. Upon information and belief, Defendant Kramer America, Inc. (Kramer) is a

corporation organized under the laws of Florida with its principal place of business located at 3763 Mercy Star Ct., Orlando, Florida. Kramer designs, develops, has manufactured, offers for sale, imports and/or sells nationwide, including engaging in substantial business in this judicial district, Max Liner products, including MAXFLOORMAT vehicle floor trays (Accused Floor Trays) and the devices which affix certain of the Accused Floor Trays to the vehicle foot wells (collectively the Infringing Products). 4. Upon information and belief, Defendant Vandapac Company Limited

(Vandapac) is a foreign corporation organized and existing under the laws of Thailand, with its principal place of business located at 93 Moo 15 Kingkaew Rd, Samut Prakarn, 10540, Thailand. Vandapac designs, develops, manufactures and exports products, including the Infringing Products, to its exclusive United States distributor Kramer, where they are then sold nationwide, including substantial sales into this judicial district. 5. Upon information and belief, Defendant Polglobe, LLC d/b/a Family Car Gear

(Polglobe), is a limited liability company organized under the laws of Michigan with a registered office at 5026 Gardner E, Sterling Heights, Michigan 48310. Polglobe is a reseller and distributor of automotive accessories, including WeatherTech products and

MAXFLOORMAT floor trays and, upon information and belief, certain infringing carpet affixation devices. Polglobe markets and sells the Infringing Products nationwide, including substantial sales into this judicial district.

-2-

JURISDICTION AND VENUE 6. This Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C.

1331 and 1338 because MacNeils claims arise under the laws of the United States. This Court has supplemental jurisdiction over MacNeils state law claims pursuant to 28 U.S.C. 1367. This Court has personal jurisdiction over Kramer because it transacts business in this district by offering to sell and selling products, including Infringing Products, to Illinois customers and having conducted numerous sales to Illinois consumers of said products and Infringing Products. This Court has personal jurisdiction over Polglobe because it transacts business in this district by offering to sell and selling products, including Infringing Products, to Illinois customers and having conducted numerous sales to Illinois consumers of said products and Infringing Products. This Court has personal jurisdiction over Vandapac because it, through its established United States exclusive distributor Kramer, has deliberately and intentionally caused products, including Infringing Products, to be placed into the stream of commerce via its established distribution channel, knowing that said products and Infringing Products would be offered for sale and were in fact sold in the United States and, specifically, this judicial district. 7. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(c) and

1400(b) because Defendants are subject to personal jurisdiction in, do business in and have committed acts of infringement in this judicial district. FACTUAL BACKGROUND 8. MacNeil is the exclusive licensee of three U.S. Patents: United States Patent No.

7,401,837 (the 837 patent), attached hereto as Exhibit 1, duly and legally issued on July 22, 2008; United States Patent No. 7,686,370 (the 370 patent), attached hereto as Exhibit 2, duly and legally issued on March 30, 2010; and United States Patent No. 6,735,819 (the 819

-3-

patent), attached hereto as Exhibit 3, duly and legally issued on May 18, 2004. These patents collectively shall be referred to herein as the Subject Patents. 9. As the exclusive licensee of all right, title and interest in the Subject Patents,

MacNeil has standing to sue for infringement of the Subject Patents and may seek monetary damages, injunctions and other relief pursuant to 35 U.S.C. 271 for past, current and future infringement of the Subject Patents. The exclusive license is attached hereto as Exhibit 4. 10. Since 2005, MacNeil has manufactured, distributed, advertised and sold to

consumers throughout the United States its vehicle floor trays which are digitally measured for precise fit for certain makes and models of vehicles. extensively under its mark WEATHERTECH. 11. MacNeils floor trays were and are a revolutionary product in the vehicle floor MacNeil markets these products

tray industry. MacNeils design and inventions with regard to said floor trays were so successful that MacNeil was able to obtain a significant market share in the floor tray product market very shortly after the products introduction to the marketplace. 12. In 2002, MacNeil invented a mat and tray affixation device designed to affix a

mat or tray to the carpeting of a vehicle footwell. MacNeil supplies such affixation devices with select mats and trays, including trays which are covered by certain Subject Patents. 13. MacNeil does not make just a one-size-fits-all vehicle floor tray, but instead

produces a wide range of vehicle floor trays which are custom fit particular vehicles by make, model and year. In addition to incorporating several patented inventions, MacNeils floor trays each incorporate a product configuration or trade dress which is not dictated by functional considerations, which is repeated from one make/model/vehicle to the next, and which have come to be recognized by the public as an indication that the vehicle floor tray in question is a

-4-

MacNeil floor tray. The unique and distinctive product configuration shall be referred to herein as MacNeils Trade Dress. MacNeils trade dress is not functional. 14. Among these nonfunctional features, which make up MacNeils trade dress, are a

fore-and-aft oriented parallel array of ribs that have a constant, predetermined width and a constant spacing apart from each other. The fore-and-aft ribs are all straight. 15. The nonfunctional features further include a recessed rectangular badge receptacle

located near the aft, outboard corner of the floor tray. The rectangular badge receptacle is elongate in a fore-and-aft direction. 16. The nonfunctional features further include a printout badge which is applied by

adhesive inside of the badge receptacle. The badge is coated with glossy plastic and has a profile which is rounded toward its edges. The background of the badge is black. The trademark on the badge makes prominent use of a bright silver color. 17. The nonfunctional features further include a so-called haircell surface texture

on the upper surface of the part. All these nonfunctional features constitute MacNeils trade dress. 18. Long prior to the acts of the Defendants described in this Complaint, MacNeil has

extensively advertised and promoted its trade dress. As a result of the care and skill exercised by MacNeil and the quality of its superior floor tray, and because of the extensive advertising, promotion, sales and public acceptance of MacNeils trade dress, MacNeils floor trays have acquired a fine and valuable reputation. The public recognizes MacNeils trade dress and that it identifies MacNeils products exclusively. MacNeils floor trays have acquired an outstanding celebrity and symbolize the fine reputation and goodwill that MacNeil has created by distributing

-5-

and selling products of high quality and by fair and honorable dealing with the trade and public in the distribution and sale of its floor tray products. 19. MacNeils products are known for their superior quality of material and

MacNeils trade dress is recognized by the public as a symbol of those superior qualities. 20. The identifying appearance of MacNeils trade dress constitutes protectable

property of MacNeil. 21. MacNeil has spent and continues to spend substantial sums of money, time and

effort to develop, advertise and promote its trade dress and related products through, in part, distribution of catalogs and brochures, advertising campaigns, and national and international trade shows. MacNeil recently made an expensive media buy in support of the Chicago

Blackhawks 2010 Stanley Cup Championship. MacNeils Relationship With Kramers Principals 22. There are two listed principals/officers of Kramer, Messrs. Salvador Lairet and

Camacho Esdras. MacNeil has a long history with Mr. Lairet and he was formerly MacNeils de facto exclusive distributor for MacNeil products in Venezuela. 23. In and around 1997, Mr. Lairet was the principal of a Venezuelan company called Based on several discussions between MacNeil and Mr. Lairet,

Accesorios Kramer, C.A.

MacNeil eventually allowed Accesorios Kramer to distribute MacNeil products in Venezuela. On or about October 1997, Mr. Lairet placed his first orders for MacNeil products. 24. MacNeil supports distributors of its products in many ways. For example,

MacNeil provides confidential pricing points and information to its distributors, MacNeil provides marketing and advertising support to its distributors, MacNeil provides confidential sales leads and information to its distributors, MacNeil supports its distributors with discounts

-6-

and special price-points on MacNeil products, MacNeil supports its distributors with its intimate knowledge of the relevant marketplace and proper order structures, and MacNeil provides ultimate retail consumer support through its various warranties and other programs. Specific to Venezuela and South America, MacNeil also traveled to South America to design parts for vehicles that were specific to the Venezuelan and South American market. 25. These types of support were provided to Lairet and Accesorios Kramer as a

distributor of MacNeils products in Venezuela. Further, MacNeil provided additional support to Accesorios Kramer by treating Accesorios Kramer as MacNeils de facto exclusive distributor in Venezuela by referring all other companies seeking to distribute MacNeils product in Venezuela directly to Accesorios Kramer. 26. During this relationship, MacNeil would ship its product to Miami whereupon

Mr. Lairet would accept the products and ship them to Venezuela. During this time, 1997-2003, Lairets purchases from MacNeil consisted of approximately 80% cargo liners (a cargo liner is a protective liner for the cargo area of a vehicle) and 20% of other MacNeil products, such as floor mats. Mr. Lairet and Accesorios Kramer continued to serve as MacNeils distributor in Venezuela up until 2003, when the Venezuelan economy took a turn for the worse and Accesorios Kramer ceased to send to MacNeil any further orders. Thereafter, MacNeil did not hear from Mr. Lairet or Accesorios Kramer for several years. 27. However, in November of 2008, during the SEMA show (an annual tradeshow in

Las Vegas at which MacNeil regularly exhibits) Mr. Lairet visited MacNeils booth with his associate Mr. Camacho Esdras and met with several MacNeil representatives. During this meeting, Mr. Lairet expressed his interest to once again become a distributor of MacNeils products in Venezuela. The meeting was so positive that MacNeil had the impression that Mr.

-7-

Lairet could eventually become a million dollar account/distributor of MacNeils products in Venezuela. It was also at this meeting that Mr. Lairet introduced his associate, Mr. Esdras, to several MacNeil representatives. 28. As a result of the many promises Mr. Lairet made to MacNeil, such as promising

to become a loyal and very successful distributor of MacNeils products once again, MacNeil agreed to have Mr. Lairet and Accesorios Kramer distribute its products in Venezuela again. Mr. Lairets associate, Mr. Esdras, began discussing and negotiating with MacNeil the composition of Accesorios Kramers first order from MacNeil. During these discussions, MacNeil noticed that, unlike its prior orders in years past (whereby roughly 80% of the orders would be composed of cargo liners), Accesorios Kramer was not interested in purchasing any cargo liners, despite its experience and success in formerly distributing the same and despite the fact that MacNeil repeatedly tried to push at least some cargo liner sales given that that product had been successful for Accesorios Kramer in the past. Instead, Accesorios Kramer was focused solely on buying MacNeils floor tray product for roughly 15-20 vehicles. The first order was placed with MacNeil on December 5, 2008, and shipped to Accesorios Kramer on January 28, 2009. 29. As MacNeil had in the past, it provided key support to Accesorios Kramer as a

renewed distributor of MacNeil products in Venezuela. In addition to providing the support detailed in Paragraph 13, MacNeil provided Accesorios Kramer with significant price support with regard to its products, as well as specific marketing and advertising support. 30. And what did MacNeil get for the support it gave to and trust it reposed in Accesorios Kramer wrongfully used MacNeils support and deeply

Accesorios Kramer?

discounted supply of product to openly compete with MacNeil and push its MaxLiner line of products, which are manufactured by Vandapac. Indeed, Accesorios Kramer used MacNeils

-8-

proprietary marketing materials in an advertisement that, instead of promoting MacNeils products, directly promoted the MAXFLOORMAT vehicle floor tray and other MaxLiner products. See Exhibit 5. Accesorios Kramer went so far as to specifically denigrate MacNeils products in its attempts to push MaxLiner products, as can be seen in the attached marketing email from Accesorios Kramer. See Exhibit 6. Upon information and belief, Accesorios Kramer sent the MacNeil floor trays it was supposed to be distributing directly to Vandapac, so that Vandapac could wrongfully copy and infringe MacNeils patented floor trays and trade dress. 31. In April 2009, MacNeil sent Accesorios Kramer the pricing for the second order.

But, rather than discussing a second order with Accesorios Kramer, MacNeil heard nothing about continuing the distributor relationship. To date, Accesorios Kramer has not placed any more orders with MacNeil and continues to push MaxLiner products instead. Kramer America Is Born 32. Kramer America, Inc.s (Kramer) incorporation papers were filed in Florida on

July 10, 2009. See Exhibit 7. The President and Treasurer of Kramer was listed as none other than Salvador Lairet. This incorporation was filed mere months after Accesorios Kramer received its first and only shipment of floor trays from MacNeil. Upon information and belief, Kramer was then and is now operating as the exclusive distributor for Vandapac and its MaxLiner products in the United States. The most recently listed officers of Kramer include Mr. Lairet and also Mr. Camacho Esdras. Both of these gentlemen acted as representatives of Accesorios Kramer in its negotiations and discussions with MacNeil to act as a distributor of MacNeil products. See Exhibit 8. 33. Recently, MacNeil was alerted to Kramers activities by a then Florida-based

distributor (now a Michigan-based distributor) of MacNeils and other automotive accessory

-9-

products. The distributors comment was that these [Kramers infringing MaxLiner products] look familiar The distributor recognized that the MaxLiner floor trays were strikingly similar to the trade dress of MacNeils highly successful vehicle floor trays. 34. Upon further investigation, MacNeil discovered that Kramer was selling and had

sold these products in the United States, including several such sales in this judicial district. 35. MacNeil also discovered that Kramer had bought many different versions of

MacNeils floor trays for various vehicle models and makes and had shipped these floor trays directly to Vandapac in Thailand. See Exhibit 9. On information and belief, Vandapac and Kramer have colluded together to systematically copy and infringe MacNeils distinctive trade dress and patented floor trays and MacNeils patented carpet affixation device and system known as the MatGrip. For a photo comparison of these products side by side (and the MaxLiner floor trays also laid inside MacNeils floor trays) see Exhibits 10 and 11. 36. MacNeil recently sent a cease and desist letter to Kramer and Vandapac.

However, MacNeil has heard no response and thus filed the instant lawsuit. Since sending these letters, Kramers website at www.krameramerica.com has apparently been disabled. However, MacNeil has captured several screenshots of the website as it existed before it was disabled and Kramer employed this website to market and accomplish sales of the Infringing Products, including accomplishing several actual sales to this judicial district. See Exhibit 12. 37. Upon information and belief, since at least 2010 Kramer has used its in-house

team of designers and engineers to design and develop automotive vehicle floor trays, as well as the affixing devices, that infringe the Subject Patents, including but not limited to the Infringing Products.

-10-

38.

Relative at least as to MacNeils floor trays, Kramers design and development

efforts have not been directed to independently creating original tray designs, but rather to slavishly copying both patented and nonfunctional features of MacNeils trade dress and its patented floor trays, with one of the principal aims being to emulate the overall look and distinctive appearance of MacNeils floor trays as closely as possible. 39. Upon information and belief, Kramers slavish copying has been performed with

the objective to deceive the public into believing that there is some connection or sponsorship between MacNeil and Kramer, and/or to pass off Kramers floor trays as those manufactured by MacNeil. 40. Upon information and belief, since at least 2010, Kramer has assisted Vandapac

in the design and manufacture of automotive vehicle floor trays, including but not limited to the Infringing Products, that infringe MacNeils patents, including but not limited to the Infringing Products and intentionally emulate MacNeils trade dress. 41. Upon information and belief, since at least 2011, Kramer has imported (and

distributed in the United States, including this judicial district), from Vandapac, automotive vehicle floor trays and carpet affixation devices that infringe MacNeils Subject Patents, including but not limited to the Infringing Products and which copy the trade dress and product configuration of MacNeils distinctive floor trays. 42. Since at least 2011, Defendants introduced, advertised, distributed and sold or

caused to be introduced, advertised, distributed or sold a floor tray product that they called the MAXFLOORMAT to consumers throughout the United States, including consumers in this judicial district. The MAXFLOORMAT is a colorable imitation of MacNeils trade dress.

-11-

43.

Defendants MAXFLOORMAT floor trays products are a colorable imitation of

MacNeils trade dress, including the elements described above, and are confusingly similar thereto. 44. Defendants MAXFLOORMAT floor tray products are advertised, promoted and

marketed in the same channels of trade as MacNeils trade dress in the United States, including this district. 45. On information and belief, Defendants knew of MacNeils trade dress and hard-

earned goodwill at all pertinent times prior to Defendants first promotion, use and/or sale of the MAXFLOORMAT floor tray products. Defendants deliberately adopted the appearance of their MAXFLOORMAT products to trade upon the hard-earned goodwill of MacNeil and Defendants have deliberately attempted to free-ride on MacNeils trade dress. 46. Confusion has resulted and will be likely to continue to result from Defendants

conduct unless it is enjoined by this Court. 47. MacNeil has been and will continue to be seriously and irreparably injured unless

Defendants conduct is enjoined by this Court. Vandapacs Involvement and Infringing/Wrongful Activities 48. Prior to Vandapacs collusion with Kramer, approximately pre-2009, on

information and belief Vandapac offered for sale ex-US a vehicle floor tray that was substantially in the form of the tray that is found in Exhibit 13. 49. However, even before MacNeil was aware of Vandapacs collusion with Kramer,

on or about September of 2010, at the 2010 Automechanika trade show at Frankfurt, Germany, a MacNeil representative became aware that Vandapac was marketing a MaxLiner floor tray at said trade show that infringed MacNeils German intellectual property at said trade show

-12-

(corresponding to several US patents). See Exhibit 14. The MacNeil representative informed Vandapacs representative that its product infringed MacNeils intellectual property and informed said Vandapac representative that MacNeil would take action if any such product was distributed and sold in the United States. 50. Since that time, MacNeil has never seen Vandapac market a floor tray in the form

that was found in Exhibit 14. Instead, MacNeil recently became aware that Vandapac was manufacturing and distributing an infringing floor tray and related accessories in the form such as Kramer distributed to this judicial district and throughout the United States. See Exhibit 10. 51. On information and belief, Vandapac and Kramer have conspired and colluded to

systematically copy and infringe MacNeils distinctive and patented floor trays and MatGrip affixation devices, as well as MacNeils trade dress. Vandapac has received numerous MacNeil floor trays from Kramer and/or Accesorios Kramer. Vandapac has manufactured its Infringing Products in direct violation of the Subject Patents and has intentionally copied MacNeils trade dress, and, upon information and belief, with full knowledge of MacNeils intellectual property rights. 52. On information and belief, Vandapac colluded and conspired with Kramer and

wrongfully took advantage of the relationship that the principals of Kramer had with MacNeil to receive valuable support from MacNeil, all the while intending to use this support to wrongfully compete with MacNeil and infringe MacNeils intellectual property rights. 53. On information and belief, Vandapac, through its established distribution channel

in the United States, Kramer, has caused to be placed in the stream of commerce, for distribution in the United States and this judicial district, the Infringing Products. Vandapac has done so intentionally with the sole purpose of distributing these Infringing Products in the United States

-13-

and this judicial district. On information and belief, Vandapac designed, manufactured and distributed the Infringing Products, expressly for sale into the United States and this judicial district, in collusion with Kramer and the principals thereof. Polglobes Infringement And Wrongful Activities 54. Polglobe is a Michigan based reseller of MacNeils products and

MAXFLOORMAT floor tray products and, on information and belief, certain infringing affixation devices. Polglobe has marketed and sold the Infringing Products nationwide and has conducted said sales of the Infringing Products in this judicial district. Polglobe accomplishes a significant amount of its sales through its website, www.ecargoliners.com, which markets many different products, including the Infringing Products, nationwide and has accomplished several sales in this judicial district through said website. 55. In addition to selling, offering for sale, and on information and belief importing

Infringing Products nationwide and specifically this judicial district, Polglobe also misused MacNeils copyrighted marketing materials in its support of MaxLiner products. 56. Specifically, Polglobe stated as follows with regard to its advertisements for

MaxLiner products: MAXLINER Cargo Liners are perfect protection while hauling just about anything from the family pet to gardening supplies to rough construction MAXLINER Floor Liners materials accurately and completely line the interior carpet giving the owner the absolute interior protection. Rear Floor Liners are either one piece or two piece depending on the vehicle application. Exhibit 15. 57. This ad copy is almost a word for word replication of MacNeils copyrighted Specifically, except for the reference to MaxLiner these

and trademarked material.

advertisements directly lift the language from MacNeils copyrighted material. Further, MacNeil has claimed mark rights in the phrase absolute interior protection as it applies to its line of

-14-

products. Polglobe has wrongfully used MacNeils support to sell MacNeil products to sell MaxLiner products. COUNT I PATENT INFRINGEMENT OF U.S. PATENT NO. 7,401,837 58. MacNeil reasserts and incorporates by reference the allegations of its Complaint

at paragraphs 1 through 57 as if fully set forth herein. 59. Upon information and belief, without the consent of MacNeil, Defendants have

made, used, offered for sale, sold and/or imported Infringing Products which directly and/or indirectly infringe at least one claim of the 837 patent. 60. Upon information and belief, without the consent of MacNeil, Defendants have

committed acts that constitute inducement of infringement of at least one claim of the 837 patent by others through their acts of making, importing, offering to sell and/or selling Infringing Products. 61. As a direct and proximate result of Defendants direct infringement and/or

inducement to infringe the 837 patent, MacNeil has suffered and will continue to suffer irreparable injury and damages in an amount not yet determined for which MacNeil is entitled to relief. 62. Upon information and belief, Defendants infringement and/or inducement to

infringe the 837 patent has been and continues to be willful and deliberate. WHEREFORE, MacNeil prays for entry of judgment in its favor and against Defendants as follows: A. B. C. Enter judgment that Defendants have directly infringed the 837 patent; Enter judgment that Defendants have induced others to infringe the 837 patent; Enter judgment that Defendants have willfully infringed the 837 patent;

-15-

D. 285; E.

Enter judgment that this case is found to be an exceptional case under 35 U.S.C.

Enter a permanent injunction, pursuant to 35 U.S.C. 283, restraining and

enjoining Defendants and their respective officers, agents, servants, employees, attorneys, customers and those in concert or participation with Defendants from any further sales of the Infringing Products and any other infringement of the 837 patent, whether direct or indirect; F. Enter judgment ordering Defendants to compensate MacNeil for Defendants

infringement of the 837 patent pursuant to 35 U.S.C. 284; G. U.S.C. 284; H. Enter a judgment for an award of pre-judgment and post-judgment interest and Enter a judgment ordering Defendants to pay enhanced damages pursuant to 35

costs to MacNeil pursuant to 35 U.S.C. 284; I. Enter a judgment for an award of Plaintiffs reasonable attorneys fees pursuant to

35 U.S.C. 285; J. Enter a permanent injunction pursuant to 35 U.S.C. 283, restraining and

enjoining Defendants and their respective officers, agents, servants, employees, attorneys, customers and those in concert or participation with Defendants, from offering for sale or selling the Infringing Products, and requiring destruction of all molds and tooling related to the Infringing Products; and K. Grant MacNeil such other and further relief as the Court may deem just, proper

and equitable under the circumstances.

-16-

COUNT II PATENT INFRINGEMENT OF U.S. PATENT NO. 7,686,370 63. MacNeil reasserts and incorporates by reference the allegations of its Complaint

at paragraphs 1 through 57 as if fully set forth herein. 64. Upon information and belief, without the consent of MacNeil, Defendants have

made, used, offered for sale, sold and/or imported Infringing Products which directly and/or indirectly infringe at least one claim of the 370 patent. 65. Upon information and belief, without the consent of MacNeil, Defendants have

committed acts that constitute inducement of infringement of at least one claim of the 370 patent by others through their acts of making, importing, offering to sell and/or selling Infringing Products. 66. As a direct and proximate result of Defendants direct infringement, indirect

infringement and/or inducement to infringe the 370 patent, MacNeil has suffered and will continue to suffer irreparable injury and damages in an amount not yet determined for which MacNeil is entitled to relief. 67. Upon information and belief, Defendants direct infringement, indirect

infringement and/or inducement to infringe the 370 patent has been and continues to be willful and deliberate. WHEREFORE, MacNeil prays for entry of judgment in its favor and against Defendants as follows: A. patent; B. C. Enter judgment that Defendants have induced others to infringe the 370 patent; Enter judgment that Defendants have willfully infringed the 370 patent; Enter judgment that Defendants have directly and indirectly infringed the 370

-17-

D. 285; E.

Enter judgment that this case is found to be an exceptional case under 35 U.S.C.

Enter a permanent injunction, pursuant to 35 U.S.C. 283, restraining and

enjoining Defendants and their respective officers, agents, servants, employees, attorneys, customers and those in concert or participation with Defendants from any further sales of the Infringing Products and any other infringement of the 370 patent, whether direct or indirect; F. Enter judgment ordering Defendants to compensate MacNeil for Defendants

infringement of the 370 patent pursuant to 35 U.S.C. 284; G. U.S.C. 284; H. Enter a judgment for an award of pre-judgment and post-judgment interest and Enter a judgment ordering Defendants to pay enhanced damages pursuant to 35

costs to MacNeil pursuant to 35 U.S.C. 284; I. Enter a judgment for an award of Plaintiffs reasonable attorneys fees pursuant to

35 U.S.C. 285; J. Enter a permanent injunction pursuant to 35 U.S.C. 283, restraining and

enjoining Defendants and their respective officers, agents, servants, employees, attorneys, customers and those in concert or participation with Defendants, from offering for sale or selling the Infringing Products, and requiring destruction of all molds and tooling related to the Infringing Products; and K. Grant MacNeil such other and further relief as the Court may deem just, proper

and equitable under the circumstances.

-18-

COUNT III PATENT INFRINGEMENT OF U.S. PATENT NO. 6,735,819 68. MacNeil reasserts and incorporates by reference the allegations of its Complaint

at paragraphs 1 through 57 as if fully set forth herein. 69. Upon information and belief, without the consent of MacNeil, Defendants have

made, used, offered for sale, sold and/or imported Infringing Products (including vehicle floor tray affixation devices) which directly and/or indirectly infringe at least one claim of the 819 patent. 70. Upon information and belief, without the consent of MacNeil, Defendants have

committed acts that constitute inducement of infringement of at least one claim of the 819 patent by others through their acts of making, importing, offering to sell and/or selling Infringing Products. 71. As a direct and proximate result of Defendants direct infringement and/or

inducement to infringe the 819 patent, MacNeil has suffered and will continue to suffer irreparable injury and damages in an amount not yet determined for which MacNeil is entitled to relief. 72. Upon information and belief, Defendants infringement and/or inducement to

infringe the 819 patent has been and continues to be willful and deliberate. WHEREFORE, MacNeil prays for entry of judgment in its favor and against Defendants as follows: A. B. C. Enter judgment that Defendants have directly infringed the 819 patent; Enter judgment that Defendants have induced others to infringe the 819 patent; Enter judgment that Defendants have willfully infringed the 819 patent;

-19-

D. 285; E.

Enter judgment that this case is found to be an exceptional case under 35 U.S.C.

Enter a permanent injunction, pursuant to 35 U.S.C. 283, restraining and

enjoining Defendants and their respective officers, agents, servants, employees, attorneys, customers and those in concert or participation with Defendants from any further sales of the Infringing Products and any other infringement of the 819 patent, whether direct or indirect; F. Enter judgment ordering Defendants to compensate MacNeil for Defendants

infringement of the 819 patent pursuant to 35 U.S.C. 284; G. U.S.C. 284; H. Enter a judgment for an award of pre-judgment and post-judgment interest and Enter a judgment ordering Defendants to pay enhanced damages pursuant to 35

costs to MacNeil pursuant to 35 U.S.C. 284; I. Enter a judgment for an award of Plaintiffs reasonable attorneys fees pursuant to

35 U.S.C. 285; J. Enter a permanent injunction pursuant to 35 U.S.C. 283, restraining and

enjoining Defendants and their respective officers, agents, servants, employees, attorneys, customers and those in concert or participation with Defendants, from offering for sale or selling the Infringing Products, and requiring destruction of all molds and tooling related to the Infringing Products; and K. Grant MacNeil such other and further relief as the Court may deem just, proper

and equitable under the circumstances.

-20-

COUNT IV ILLINOIS COMMON LAW UNFAIR COMPETITION 73. MacNeil reasserts and incorporates by reference the allegations of its Complaint

at paragraphs 1 through 57 as if fully set forth herein. 74. MacNeil supports its distributors in many different ways, as detailed herein. As a

distributor of MacNeil products, the principals of Kramer, through their company Accesorios Kramer, received MacNeils substantial support in many different areas. However, rather than act as a loyal and successful distributor of MacNeil products, Kramer colluded and conspired with Vandapac and Accesorios Kramer to knock-off MacNeils floor tray product and violate MacNeils intellectual property rights. Vandapac and Kramer wrongfully acted to take

advantage of the support that MacNeil provided to Kramers principals and Accesorios Kramer to compete directly with MacNeil and, to add insult to injury, were granted a significant discount on the floor trays provided by MacNeil, which the Defendants then used to violate MacNeils intellectual property rights and outright copy MacNeils floor trays. Further to this collusion and conspiracy between Vandapac, Kramer and Accesorios Kramer, the latter used proprietary marketing materials provided to it by MacNeil to directly promote the infringing MaxLiner products and also specifically denigrate MacNeils product. Specifically as to Defendant

Polgobe, Polglobe has wrongfully used MacNeils copyrighted material to support sales and advertisements of MaxLiner products. 75. For many years, MacNeil has expended substantial sums of money creating,

advertising, promoting, establishing and supporting its trade dress with its customers and Illinois and American consumers in general. 76. As a result of MacNeils substantial investment and hard work over the years, as

well as MacNeils commitment to quality, excellence and customer service, MacNeil has earned

-21-

tremendous goodwill and a fine reputation with consumers and the trade, who associate MacNeil with its trade dress. 77. Defendants are aware of the above facts, and have sought to wrongfully capitalize

on MacNeils fine reputation and goodwill by advertising, promoting and selling, and/or causing such marketing its MaxLiner floor tray product which is an intentional attempt to copy and/or create a colorable imitation of MacNeils trade dress. As a result of Defendants wrongful conduct, Defendants are able to free-ride off of MacNeils substantial investment and hard work by causing confusion among consumers in the marketplace and attempting to identify or associate their MaxLiner floor tray product with MacNeils product and/or confuse consumers that this is the case. 78. On information and belief, further discovery will reveal that Kramer and

Accesorios Kramer should be treated as one and the same entity, under either a substantial control theory or under an alter ego/piercing the corporate veil analysis, and both these companies are merely the instruments of Mr. Salvador Lairet, who is a central figure behind the wrongful actions detailed herein. 79. MacNeil has been, is, and will continue to be damaged by the Defendants actions

and MacNeil does not have an adequate remedy at law. Defendants actions have damaged, and will continue to damage, MacNeils business, market, reputation and goodwill. WHEREFORE, MacNeil prays for entry of judgment in its favor and against Defendants as follows: A. Enter a permanent injunction restraining and enjoining Defendants and all of their

agents, servants, employees, successors and assigns, and all persons in active concert or participation with Defendants, from

-22-

1)

Selling, marketing, advertising, importing or purchasing the Infringing Products as detailed in this Complaint; Unfairly competing with MacNeil; and Causing a likelihood of confusion or misunderstanding as to source, sponsorship, approval or certification of their products or as to any affiliation, connection or association of them with or approval of said products by MacNeil, or engaging in any other conduct that similarly creates a likelihood of confusion or misunderstanding or false representation with respect to MacNeil.

2) 3)

B.

An Order requiring Defendants to file with this Court and serve upon MacNeil

within 30 days after the entry of the permanent injunction a report, in writing and under oath, setting forth in detail the manner and form in which Defendants have complied with the above subparagraph (A) of this prayer; C. An award to MacNeil of all profits received by Defendants from the sales and

revenues of any kind made as a result of Defendants sales of its Infringing Products, damages, to be determined, that MacNeil has suffered as a result of Defendants conduct, and the costs of this litigation; and D. Grant MacNeil such other and further relief as the Court may deem just, proper

and equitable under the circumstances. COUNT V UNJUST ENRICHMENT 80. MacNeil reasserts and incorporates by reference the allegations of its Complaint

at paragraphs 1 through 57 as if fully set forth herein. 81. MacNeil supports its distributors in many different ways, as detailed herein. As a

distributor of MacNeil products, the principals of Kramer, through their company Accesorios Kramer, received MacNeils substantial support in many different areas. However, rather than act as a loyal and successful distributor of MacNeil products, Kramer colluded and conspired

-23-

with Vandapac and Accesorios Kramer to knock-off MacNeils floor tray product and violate MacNeils intellectual property rights. Vandapac and Kramer wrongfully acted to take

advantage of the support that MacNeil provided to Kramers principals and Accesorios Kramer to compete directly with MacNeil and, to add insult to injury, were granted a significant discount on the floor trays provided by MacNeil, which the Defendants then used to violate MacNeils intellectual property rights and outright copy MacNeils floor trays. Further to this collusion and conspiracy between Vandapac, Kramer and Accesorios Kramer, the latter used proprietary marketing materials provided to it by MacNeil to directly promote the infringing MaxLiner products and also specifically denigrate MacNeils product. Specifically as to Defendant

Polgobe, Polglobe has wrongfully used MacNeils copyrighted material to support sales and advertisements of MaxLiner products. 82. For many years, MacNeil has expended substantial sums of money creating,

advertising, promoting, establishing and supporting its trade dress with its customers and Illinois and American consumers in general. 83. As a result of MacNeils substantial investment and hard work over the years, as

well as MacNeils commitment to quality, excellence and customer service, MacNeil has earned tremendous goodwill and a fine reputation with consumers and the trade, who associate MacNeil with its trade dress. 84. Defendants are aware of the above facts, and have sought to wrongfully capitalize

on MacNeils fine reputation and goodwill by advertising, promoting and selling, and/or causing such marketing its MaxLiner floor tray product which is an intentional attempt to copy and/or create a colorable imitation of MacNeils trade dress. As a result of Defendants wrongful conduct, Defendants are able to free-ride off of MacNeils substantial investment and hard work

-24-

by causing confusion among consumers in the marketplace and attempting to identify or associate their MaxLiner floor tray product with MacNeils product and/or confuse consumers that this is the case. 85. On information and belief, further discovery will reveal that Kramer and

Accesorios Kramer should be treated as one and the same entity, under either a substantial control theory or under an alter ego/piercing the corporate veil analysis, and both these companies are merely the instruments of Mr. Salvador Lairet, who is a central figure behind the wrongful actions detailed herein. 86. MacNeil has been, is, and will continue to be damaged by the Defendants actions

and MacNeil does not have an adequate remedy at law. Defendants actions have damaged, and will continue to damage, MacNeils business, market, reputation and goodwill. 87. Defendants unjustly have received the benefit of MacNeils substantial

investment in its distributors and support thereof, and MacNeils hard-earned goodwill and fine reputation. 88. 89. Defendants have been unjustly enriched. It would violate the principles of justice, equity and good conscience for

Defendants to retain this benefit. 90. To avoid an unjust enrichment, MacNeil should be awarded damages reflecting

Defendants enrichment, among other relief. WHEREFORE, MacNeil prays for entry of judgment in its favor and against Defendants as follows:

-25-

A.

Enter a permanent injunction restraining and enjoining Defendants and all of their

agents, servants, employees, successors and assigns, and all persons in active concert or participation with Defendants, from 1) Selling, marketing, advertising, importing or purchasing the Infringing Products as detailed in this Complaint; Unfairly competing with MacNeil; and Causing a likelihood of confusion or misunderstanding as to source, sponsorship, approval or certification of their products or as to any affiliation, connection or association of them with or approval of said products by MacNeil, or engaging in any other conduct that similarly creates a likelihood of confusion or misunderstanding or false representation with respect to MacNeil.

2) 3)

B.

An Order requiring Defendants to file with this Court and serve upon MacNeil

within 30 days after the entry of the permanent injunction a report, in writing and under oath, setting forth in detail the manner and form in which Defendants have complied with the above subparagraph (A) of this prayer; C. An award to MacNeil of all profits received by Defendants from the sales and

revenues of any kind made as a result of Defendants sales of its Infringing Products, damages, to be determined, that MacNeil has suffered as a result of Defendants conduct, and the costs of this litigation; and D. Grant MacNeil such other and further relief as the Court may deem just, proper

and equitable under the circumstances. COUNT VI FEDERAL UNFAIR COMPETITION 91. MacNeil reasserts and incorporates by reference the allegations of its Complaint

at paragraphs 1 through 57 as if fully set forth herein.

-26-

92.

Defendants have intentionally and willfully adopted and are using in interstate

commerce in connection with the advertising, promotion, exportation and importation, and sale of the MAXFLOORMAT floor tray products, a floor tray product that is intended by Defendants to be substantially similar to, and a colorable imitation of, the distinctive MacNeil trade dress. 93. Defendants unlawful adoption and use, in interstate commerce, of such a

colorable imitation of MacNeils trade dress without authorization of MacNeil is likely to cause confusion, to cause mistake and/or to deceive. 94. Through the promotion, manufacture, exportation and importation, advertising

and sale of such a confusingly similar product appearance, Defendants have unlawfully simulated, appropriated and infringed MacNeils rights and its proprietary trade dress. Such conduct and appropriation constitute a false description or representation of MacNeils trade dress or a false designation of origin in violation of 15 U.S.C. 1125(a). 95. MacNeil has been, is, and will continue to be damaged by the Defendants actions

and MacNeil does not have an adequate remedy at law. Defendants actions have damaged, and will continue to damage, MacNeils business, market, reputation and goodwill. WHEREFORE, MacNeil prays for entry of judgment in its favor and against Defendants as follows: A. Enter a permanent injunction restraining and enjoining Defendants and all of their

agents, servants, employees, successors and assigns, and all persons in active concert or participation with Defendants, from 1) Selling, marketing, advertising, importing or purchasing the Infringing Products as detailed in this Complaint; Unfairly competing with MacNeil; and

2)

-27-

3)

Causing a likelihood of confusion or misunderstanding as to source, sponsorship, approval or certification of their products or as to any affiliation, connection or association of them with or approval of said products by MacNeil, or engaging in any other conduct that similarly creates a likelihood of confusion or misunderstanding or false representation with respect to MacNeil.

B.

An Order, under 15 U.S.C. 1116 and 1118, requiring Defendants (including

their employees and agents) to deliver to MacNeil or requiring destroyed, all infringing floor trays of Defendants, all molds and tooling for manufacturing such floor trays or liners, and all promotional and packaging materials related to Defendants infringing floor trays. C. An Order, pursuant to 15 U.S.C. 1116, requiring Defendants to file with this

Court and serve upon MacNeil within 30 days after the entry of the permanent injunction a report, in writing and under oath, setting forth in detail the manner and form in which Defendants have complied with the above two subparagraphs (A and B) of this prayer. D. An award to MacNeil, under 15 U.S.C. 1117, of all profits received by

Defendants from the sales and revenue of any kind made as a result of Defendants sales of its infringing floor tray products, damages, to be determined, that MacNeil has suffered as a result of Defendants conduct and find that, due to the flagrant and deliberate character of such infringement and unfair competition, any such damages shall be trebled, and the costs of this litigation and find this case to be an exceptional case and therefore grant MacNeil its attorneys fees in pursuing this litigation; and E. Grant MacNeil such other and further relief as the Court may deem just, proper

and equitable under the circumstances. COUNT VII ILLINOIS UNIFORM DECEPTIVE TRADE PRACTICES ACT 96. MacNeil reasserts and incorporates by reference the allegations of its Complaint

at paragraphs 1 through 57 as if fully set forth herein.

-28-

97.

Defendants knowing and willful copying and colorable imitation of MacNeils

trade dress is intended by Defendants to allow them to free-ride on MacNeils substantial investment in its trade dress and the hard-earned goodwill and excellent reputation of MacNeils WeatherTech floor tray product. 98. Defendants knowing and continued sales of their MAXFLOORMAT floor tray

product to unsuspecting Illinois consumers has created a substantial likelihood of confusion and caused mistake and deception in Illinois consumers minds because the MAXFLOORMAT product is inferior to, and not the same as, MacNeils WeatherTech floor tray product. 99. The above-described knowing and willful conduct constitutes deceptive trade

practices within the meaning of Section 2 of the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS 510/2. 100. Defendants unlawful adoption and use, in interstate commerce, of such a

colorable imitation of MacNeils trade dress without authorization of MacNeil is likely to cause confusion, to cause mistake and/or to deceive. 101. Through the promotion, manufacture, exportation and importation, advertising

and sale of such a confusingly similar product appearance, Defendants have unlawfully simulated, appropriated and infringed MacNeils rights and its proprietary trade dress. Such conduct and appropriation constitute a false description or representation of MacNeils trade dress or a false designation of origin in violation of 15 U.S.C. 1125(a). 102. MacNeil has been, is, and will continue to be damaged by the Defendants actions

and MacNeil does not have an adequate remedy at law. Defendants actions have damaged, and will continue to damage, MacNeils business, market, reputation and goodwill.

-29-

WHEREFORE, MacNeil prays for entry of judgment in its favor and against Defendants as follows: A. Enter a permanent injunction restraining and enjoining Defendants and all of their

agents, servants, employees, successors and assigns, and all persons in active concert or participation with Defendants, from 1) Selling, marketing, advertising, importing or purchasing the Infringing Products as detailed in this Complaint; Unfairly competing with MacNeil; and Causing a likelihood of confusion or misunderstanding as to source, sponsorship, approval or certification of their products or as to any affiliation, connection or association of them with or approval of said products by MacNeil, or engaging in any other conduct that similarly creates a likelihood of confusion or misunderstanding or false representation with respect to MacNeil.

2) 3)

B.

An Order requiring Defendants to file with this Court and serve upon MacNeil

within 30 days after the entry of the permanent injunction a report, in writing and under oath, setting forth in detail the manner and form in which Defendants have complied with the above subparagraph (A) of this prayer; C. An award to MacNeil of all profits received by Defendants from the sales and

revenues of any kind made as a result of Defendants sales of its Infringing Products, damages, to be determined, that MacNeil has suffered as a result of Defendants conduct, and the costs of this litigation; and D. Grant MacNeil such other and further relief as the Court may deem just, proper

and equitable under the circumstances.

-30-

COUNT VIII ILLINOIS CONSUMER FRAUD AND DECEPTIVE BUSINESS PRACTICES ACT 103. MacNeil reasserts and incorporates by reference the allegations of its Complaint

at paragraphs 1 through 57 as if fully set forth herein. 104. In violation of the Illinois Consumer Fraud and Deceptive Business Practices Act,

Defendants have engaged in at least the following unfair and/or deceptive acts or practices: a) By its use of an infringing product, namely the MAXFLOORMAT floor tray, Defendants have confused consumers as to the origins of the MAXFLOORMAT product and falsely attempted to represent that the MAXFLOORMAT floor tray has some relation to MacNeil; and Other false statements and misrepresentations, concealments, suppressions or omissions according to proof.

b)

105.

Defendants intended for consumers to suffer confusion and to misrepresent the

source of its MAXFLOORMAT product. 106. Defendants unfair and deceptive acts and practices occurred in the normal course

of trade or commerce. 107. Through their unfair and deceptive acts and practices, Defendants have harmed

MacNeil and American consumers of their MAXFLOORMAT floor tray products. WHEREFORE, MacNeil prays for entry of judgment in its favor and against Defendants as follows: A. Enter a permanent injunction restraining and enjoining Defendants and all of their

agents, servants, employees, successors and assigns, and all persons in active concert or participation with Defendants, from 1) Selling, marketing, advertising, importing or purchasing the Infringing Products as detailed in this Complaint; Unfairly competing with MacNeil; and

2)

-31-

3)

Causing a likelihood of confusion or misunderstanding as to source, sponsorship, approval or certification of their products or as to any affiliation, connection or association of them with or approval of said products by MacNeil, or engaging in any other conduct that similarly creates a likelihood of confusion or misunderstanding or false representation with respect to MacNeil.

B.

An Order requiring Defendants to file with this Court and serve upon MacNeil

within 30 days after the entry of the permanent injunction a report, in writing and under oath, setting forth in detail the manner and form in which Defendants have complied with the above subparagraph (A) of this prayer; C. An award to MacNeil of all profits received by Defendants from the sales and

revenues of any kind made as a result of Defendants sales of its Infringing Products, damages, to be determined, that MacNeil has suffered as a result of Defendants conduct, and the costs of this litigation; D. E. An award to MacNeil for its costs and attorneys fees for this litigation; and Grant MacNeil such other and further relief as the Court may deem just, proper

and equitable under the circumstances. COUNT IX AS TO DEFENDANT POLGLOBE (VIOLATION OF THE U.S. COPYRIGHT ACT OF 1976, AS AMENDED) 108. MacNeil reasserts and incorporates by reference the allegations of its Complaint

at paragraphs 1 through 57 as if fully set forth herein. 109. In or around the year 2004, MacNeil created a printed brochure as an aid for its

sale and marketing of its automotive aftermarket products, including but not limited to vehicle floor mats, floor trays and cargo liners (the "Catalog"). 110. On or about October 31, 2004, MacNeil first published the Catalog. Versions of

the Catalog have been published on a yearly basis ever since.

-32-

111.

At all times relevant to this Complaint, MacNeil had a valid and enforceable

copyright in the Catalog, within the meaning of the Copyright Act of 1976 (as amended), 17 U.S.C. 101, et seq. (the "Copyright Act"): the Catalog is an original work of authorship (a literary and artistic work originally authored by MacNeil which includes two-dimensional artwork, photographs and text); fixed in a tangible medium of expression (the Catalog has been printed); from which the work can be perceived, reproduced, and otherwise communicated. See 17 U.S.C. 102. 112. MacNeil received a registration for its claim of copyright in the Catalog from the

United States Copyright Office, January 25, 2006. An official Certificate of Registration of MacNeil's copyright in the Software, under the Seal of the U.S. Copyright Office, is attached hereto as Exhibit 16. 113. In or around the year 2004, MacNeil created a web site as an aid for its sale and

marketing of its automotive aftermarket products, including but not limited to vehicle floor mats, floor trays and cargo liners (the "Web Site"; shown at www.weathertech.com). 114. On or about October 31, 2004, MacNeil first published the Web Site by making

its contents available to the public online. The Web Site has been modified periodically since then and continues to be publicly displayed as of the time of writing. Versions of the Catalog have been published on a yearly basis ever since. 115. At all times relevant to this Complaint, MacNeil or MacNeils assignee had a

valid and enforceable copyright in the Web Site, within the meaning of the Copyright Act of 1976 (as amended), 17 U.S.C. 101, et seq. (the "Copyright Act"): the Web Site is an original work of authorship (a literary and artistic work originally authored by Plaintiff which includes two-dimensional artwork, photographs and text); fixed in a tangible medium of expression (the

-33-

Web Site has been fixed in markup language and other machine-readable computer language); from which the work can be perceived, reproduced, and otherwise communicated (the Web Site was accessible to and displayed to the public without restriction). See 17 U.S.C. 102. 116. MacNeil received a registration for its claim of copyright in the Web Site from the

United States Copyright Office, effective April 26, 2006. An official Certificate of Registration of MacNeil's copyright in the Web Site, under the Seal of the U.S. Copyright Office, is attached hereto as Exhibit 17. 117. MacNeil assigned its interest in and to the registered copyrights in writing,

according to the license agreement attached hereto as Exhibit 4. 118. According to this same license agreement, MacNeil is the exclusive licensee of all

rights in and to the Catalog and Web Site, including all rights under copyright. MacNeil has been expressly granted the right to enforce the copyright in the works it has assigned to the owner (MacNeil IP LLC), including the right to bring this action. 119. Sometime during the second or third quarters of 2011, Polglobe (d/b/a Family Car

Gear at its website, www.ecargoliners.com) authored a web page which offered for sale certain MAXLFLOORMAT vehicle floor trays. A sample copy of the web page is attached hereto as Exhibit 15. The web page also offers for sale certain WEATHERTECH products originating from MacNeil. 120. Polglobe was given access by Plaintiff to certain of its images and text as an aid to

reselling MacNeils products. 121. On information and belief, in assembling its web page, Polglobe copied text

authored by MacNeil, and used it to market products competitive to those sold by MacNeil. The copied text appears in a product description used to advertise products from Vandapac, doing

-34-

business as MaxLiner, and sold under the mark MAXFLOORMAT. Polglobe continues to use the pirated text as of the date of this Complaint. 122. MacNeil has never expressly or implicitly authorized Polglobe to use its

copyrighted text in any manner except in support of the sales of products originating from MacNeil. Specifically, MacNeil has never authorized Polglobe to: (a) copy the text for use in promoting competitors products; (b) create derivative works, for any purpose whatsoever; or (c) publicly display the text as a product description of any competitors product. 123. The above-referenced acts of Polglobe were wrongful, intentional and clear

violations of Plaintiff's rights under the Copyright Act. 124. As a direct and proximate result of the wrongful acts of Polglobe, MacNeil has

suffered damages. 125. MacNeil's copyright in the Catalog and the Web Site is registered with the U.S.

Copyright Office. 126. MacNeil's copyright in the Catalog and Web Site has been in force and effect at

all times relevant to this Complaint. 127. Pursuant to 17 U.S.C. 106, MacNeil has a number of exclusive rights to do and

authorize certain acts with respect to its Catalog and Web Site, including but not limited to: a. Reproduce the Catalog and Web Site in copies (17 U.S.C. 106(1)); b. Prepare derivative works based upon the Catalog and Web Site (17 U.S.C. 106(2)); and c. Distribute copies of the Catalog and Web Site to the public by sale or other transfer of ownership, or by rental, lease, or lending (17 U.S.C. 106(3)); and d. Publicly display the Catalog and Web site (17 U.S.C. 106(5)).

-35-

128.

Pursuant to 17 U.S.C. 501, "[a]nyone who violates any of the exclusive rights of

the copyright owner as provided by section[] 106 . . . is an infringer of the copyright or right of the author, as the case may be." Id. 129. alia: a. Reproducing text from the Catalog and the Web Site; b. Creating a derivative work based on the copied text, for the promotion of the MaxLiner competing products; and c. Publicly displaying the text and derivative work on its ecargoliners web page. 130. Pursuant to 17 U.S.C. 504(a), MacNeil is entitled to recover its actual damages Polglobe infringed MacNeil's copyright in the Catalog and Web Site by, inter

and any additional profits of Polglobe. 131. MacNeil suffered actual damages as a direct and proximate result of Polglobes

infringement of Plaintiff's copyright in the Catalog and Website, including but not limited to lost profits from sales made of products described by Polglobes infringing text and which were competitive with products made and offered for sale by MacNeil. 132. Polglobes infringement of the copyrighted works occurred after their effective

dates of registration with the U.S. Copyright Office. 133. Accordingly, MacNeil is entitled, at its election at any point prior to final

judgement and in lieu of actual damages, to an award of statutory damages under 17 U.S.C. 502(c)(2), as enhanced because of the willful nature of Polglobes infringement. 134. U.S.C. 505. Plaintiff is also entitled to an award of its attorneys fees and costs under 17

-36-

WHEREFORE, the Plaintiff MacNeil Automotive Products Limited respectfully prays that the Court enter judgment in its favor and against defendant Polglobe: (a) Awarding to Plaintiff money damages in an amount equal to Plaintiff's actual

damages, plus any additional profits of Polglobe from its infringement of Plaintiff's copyright in the Web Site and Catalog, pursuant to 17 U.S.C. 504; (b) At Plaintiffs election, and in substitution for (a), Awarding to Plaintiff statutory

damages as determined by the Court, pursuant to 17 U.S.C. 502(c)(2); (c) (d) Awarding to Plaintiff it attorneys fees and costs, pursuant to 17 U.S.C. 505; Enjoining Polglobe, and all of its agents, employees, successors, and assigns from

using, reproducing, publicly displaying, preparing derivative works of, and distributing copies of the Catalog or the Web Site, pursuant to 17 U.S.C. 502; and (e) Granting such other and further relief as the Court deems just and equitable. JURY TRIAL DEMAND MacNeil hereby demands a trial by jury on all issues so triable. Respectfully submitted, MACNEIL AUTOMOTIVE PRODUCTS LIMITED

Dated: September 12, 2011

By: One of Its Attorneys

-37-

Robert S. Grabemann rgrabemann@daspinaument.com Timothy M. Schaum tschaum@daspinaument.com DASPIN & AUMENT, LLP 227 West Monroe Suite 3500 Chicago, Illinois 60606 (312)258-1600

-38-