complaint alum a pole

8/7/2019 Complaint Alum a Pole

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ostJS 44 (Rev. 12/07)CIVIL COVER SHEETThe JS 44 civil cover sheet and the information con tained herein neither replace nor supplem ent the filing and service ofpleadings or other papers as required by law , except as providedby local rules of court. This form, approve d by the Judicial Conferenc e of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of mitiatingthe civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)I. (a) PLAINTIFFS DEFENDANTSAlum-A-Pole Corporation Badger Ladder, Inc.

(b)County of Residence of First Listed Plaintiff Lackawanna County, PA County o f Residence of First Listed Defendant Brown County, WI(EXCEPT IN U .S. PLAINTIFF CASES)(IN U.S. PLAINTIFF CASES ONLY)NOTE: IN LAND CONDEMN ATION CASES, USE THE LOCATION OF THELAND INVOLVED.(CL I Attomey' s (Firm Name Address and Telephone Number)GrosscGinley, LLP, 33 South Seventh Street, P.O. Box 4060, Allentown,Pennsylvania 18105 AttomeysKnown)II. BASIS OF JURISDICTION(Place an "X" in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an "X" in On e Box for Plaintiff(For Diversity Cases Only)and One Box for Defendant)0 1 U.S. Govemment X 3 Federal Question PT F DE F PT FD EFPlaintiff (U.S. Govenunent Not a Party) Citizen of This State0 1 0 1 Incorporated or Principal Placeg40 4of Business In This State0 2 U.S. GovemmentDefendant 0 4Diversity(Indicate Citizenship of Parties in Item III) Citizen of Another State0 2 0 2 Incorporated and Principal Place05IN 5of Business In Another StateCitizen or Subject of a0 3 0 3 Foreign Nation0606Foreign countwIV . NATURE OF SUIT Place an "X" in One Box Onl0 110 Insurance PERSO NAL INJURYPERSONAL INJURY 0 610 Agriculture 0 422 Appeal 28 USC 158 Cl 400 State Reapportionment0 120 Marine 0310 Airplane0362 Personal Injury - 0 620 Other Food & Drug 0 423 Withdrawal 410 Antitrust0 130 Miller Act 0315 Airplane ProductMed. Malpractice 0 625 Drug Related Seizure 28 USC 157 Cl 430 Banks and Banking0 140 Negotiable Instrument0 150 Recovery of Overpayment Liability0365 Personal Injury -0320 Assault, Libel &Product Liability of Property 21 USC 88 10 630 Liquor Laws Cl 450 CommerceCl 460 Deportat ion& Enforcem ent ofJudgm ent Slander0368 Asbestos Personal 0 640 R.R. & Truck 0 820 Copyrights Cl 470 Racketeer Influenced and0 151 Medicare Act 0330 Federal Employers'Injury Product 0 650 Airline Regs. 0 830 Patent Corrupt Organizations0 152 Recovery of Defaul ted LiabilityLiability 0 660 Occupational 14 840 Trademark Cl 480 Consumer CreditStudent Loans 0 340 MarinePERSO NAL, PRO PERTY Safety/Health 490 Cable/Sat TV(Excl. Veterans) 0345 Marine Product0370 Other Fraud 0 690 Other 810 Selective Service0 153 Recovery of Overpayment Liability0371 Truth in Lending C l850 Securities/Commodities/of Veteran's Benefits 0350 Motor Vehicle0380 Other Personal 0 710 Fair Labor Standards 0 861 HIA (1395ff) Exchange0 160 Stockholders' Suits 0355 Motor VehicleProperty Damage Ac t 0 862 Black Lung (923) Cl 875 Customer Challenge0 190 Other Contract Product Liability 0385 Property Damage 0 720 Labor/Mgm t. Relations 0 863 DIWC /DIWW (405(g)) 12 USC 34100 195 C ontract Product Liabi l i ty 0360 Other Personal Product L iability 0 730 Labor/Mgm t.Report ing 0 864 SSID Title XVI C l890 Other Statutory Actionsn 196 Franchise Idu & Disclosure Act 0 865 RSI 405 891 Agricultural Acts0 740 Railway Lab or Act C l892 Econornic Stabilization Act0 210 Land Condemnation 0441 Voting 0510 Motions to Vacate 0 790 Other Lab or Lit igat ion 0 870 Taxes (U.S. Plaintiff 893 E nvironmental Matters

Case 3:11-cv-00637-UN2 Document 1 Filed 04/06/11 Page 1 of 12


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UNITED STATES DISTRICT COURT FOR THEMIDDLE DISTRICT OF PENNSYLVANIA

ALUM-A-POLE CORPORATION,: Civil Action No.Plaintiff,

V .COMPLAINT

BADGER LADDER, INC.,Defendant.

Docu ment E lectronically Filed

Plaintiff Alum-A-Pole Corporation ("Alum-A-Pole"), by its undersignedattorneys, as and for its complaint against defendant Badger Ladder, Inc.("Badger"), says:



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JURISDICTION3. This is an action for infringement of a federally registered

trademark under section 32 of the Lanham Act, 15 U.S.C. 1114, and unfaircom petit ion un der section 43(a) of the L anham Act, 15 U .S.C. 1125.

4. This Court has jurisdiction over this action pursuant to 28U.S.C. 1331 and 1338(a) and (b), as well as 28 U.S.C. 1332 as there iscomplete diversity of citizenship and the amount in controversy exceeds $75,000,exclusive of interest and co sts.

BACKGROUND5. Plaintiff Alum-A-Pole is engaged in the business of, inter alia,

the design, m anufacture, and sale of scaffolding and scaffolding jacks.6. Of relevance here, Alum-A-Pole has made, sold, and promoted



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8. As a result of the extensive advertising and promotion of Alum-A-Pole's PRO-JACK products over many years, Alum-A-Pole's PRO-JACKtrademark has become well known in the trade as an indicator of high qualityscaffolding jacks that originate with Alum-A-Pole. This mark also distinguishesAlum-A-Pole's scaffolding jacks fi-om those of others, and is a valuable asset ofAlum-A-Pole.

DEFENDANT'S TRADEMARKINFRINGEMENT AND UNFAIR COMPETITION

9. Defendant Badger is a former customer of Alum-A-Pole. Assuch, defendant Badger is fully aware of Alum-A-Pole's products and trademarks,inc lud ing the PRO-JACK m ark .

10. To Alum-A-Pole's knowledge, defendant Badger firstmisappropriated and wrongfully traded on Alum-A-Pole's PRO-JACK mark in



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12. That promise proved to be fleeting at best. In or about January2011, defendant Badger published a sales brochure or flyer that is replete withreferences to PRO-JACK pump jacks, braces, and benches, as evidenced by thecover page o f this flyer, a copy of w hich is attached a s Exhibit B.

13. Defendant Badger's use of PRO-JACK is wholly without theconsent of Alum-A-Pole, and is part of a deliberate course of action to trade onAlum-A-Pole's mark and good will that has caused Alum-A-Pole to sustaini rreparable harm and dam ages.

14. Defendant's unauthorized use of PRO-JACK for the same andrelated and products associated with the trademark of Alum-A-Pole has caused, iscausing, will continue to cause, and is likely to cause confusion, mistake, and/ordeception of customers and potential customers of the parties that some affiliation,



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of Alum-A-Pole and to trade on and receive the benefit and good will of thet rademark of A lum-A-Pole.

16. Defendant's unauthorized use of a confusingly similar markinterferes with Alum-A-Pole's ability to control the nature and quality of goodsprovided under its trademark, thus placing the valuable reputation and good will ofAlum-A-Pole in the hands of defendant over which Alum-A-Pole has no control.

17. Unless defendant's unauthorized use of a confusingly similartrademark is restrained by this Court, defendant will continue to cause irreparableinjury to Alum-A-Pole and to the public for which there is no adequate remedy atlaw.

18. Defendant's acts of infringement and unfair competition havebeen made with full knowledge and conscious disregard of the rights of Alum-A-



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COUNT IIFEDERAL UNFAIR COMPETITION21. Alum-A-Pole repeats the allegations of paragraphs 1-20 as if

fully set forth here.22. The acts of defendant as aforesaid constitute unfair competition

in violation of 43(a) of the Lanha m Act, 15 U .S.C. 1125.WHEREFORE, plaintiff Alum-A-Pole prays for judgment in its favor

and against defendants, as fol lows:a . That defendant, including, as appropriate, its officers, agents,

employees, and all acting in concert, participation, or combination with defendant,be temporarily restrained and preliminarily and permanently enjoined frominfiinging Alum-A-Pole's federally registered and common law trademark, andfrom directly or indirectly using the mark PRO-JACK, or any other mark, word, or



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c. That defendant be ordered to account to Alum-A-Pole for anyand all profits derived from the sale of any products or services under the markPRO-JACK, and variations thereof, and that an award of profits be increased as theCo urt finds to be just under the circum stances;

d. That defendant be ordered to pay over to Alum-A-Pole alldamages sustained by Alum-A-Pole by reason of its infiingement and unfaircom petit ion, and that said dam ages be trebled;

e. For an aw ard of prejudgm ent and post-judgm ent interest;f. For an award of reasonable attorneys' fees and other expenses

incurred by A lum-A -Pole in the pursuit of this action; andg. For costs of suit and such further relief as this Court may deem

just and appropriate.



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EXHIBIT A



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tate0 of an teerit4.taniteb ikatto Vatent anb Zrabemarb Offire0- 1PRO-JACK

Reg. No. 3,893,334ALUM-A-POLE CORPORATION (NEW YORK CORPORATION)1011 CAPOUSEAVENUERegistered Dec. 21, 2010 SCRANTON, PA 18509Int. Cl.: 8FOR: MANUALLY O PERATED PUMP JACK S FOR SCAFFOLDING, IN CLASS 8 (U.S. CLS.23, 28 AND 44).TRADEMARKPIRST USE 8-0-1985; IN C OMME RCE 8-0-1985.PRINCIML REGISTERTHE MARK CO NSISTS OF STANDARD CHA RACTERS WITHOUT CLA1IvI TO ANY PAR-TICULAR FONT, STYLE, SIZE, OR COLOR.SER. NO. 85-027,443, FILED 4-30-2010.DANIEL CAPSHAW, EXAMININGATTORNEYCase 3:11-cv-00637-UN2 Document 1 Filed 04/06/11 Page 10 of 12


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EXHIBIT B



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Bacier Distrhatim Centers- Green Bay. WI Ci icao. fl Sacramento. CA Savannah, GA Otlando. FL

tga6 3' "Case 3:11-cv-00637-UN2 Document 1 Filed 04/06/11 Page 12 of 12

complaint alum a pole

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