kryptek v. salt armour - complaint

8/20/2019 Kryptek v. Salt Armour - Complaint

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UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

KRYPTEK OUTDOOR GROUP, LLC, §

§Plaintiff, §§

v. § CIVIL ACTION NO. 1:15-cv-348§

SALT ARMOUR, INC., §ALPHA DEFENSE, INC., and §THOMAS J. DE SERNIA, an individual, §

§Defendants. §

§

PLAINTIFF’S ORIGINAL COMPLAINT

COMES NOW Plaintiff Kryptek Outdoor Group, LLC (“Kryptek ”) by and through the

undersigned counsel, and files this Complaint against Defendants Salt Armour, Inc., Alpha

Defense, Inc., and Thomas J. De Sernia (“Defendants”) and alleges the following:

I. NATURE OF THE ACTION

1.

Plaintiff brings this action seeking to put an immediate stop to, and to obtain

redress for, Defendants’ willful infringement of Plaintiff’s patents, copyrights, trademark, and

trade dress as well as Defendants’ unlawful unfair competition and unjust enrichment under the

United States Trademark (Lanham) Act 15 U.S.C. §§ 1051, et seq, under the common law, and

under the laws of this State.

2. Plaintiff Kryptek is a highly successful veteran-owned company in the business of

designing, creating and selling customized and performance based apparel that is specifically

tailored to the environment and that incorporates proven tactical gear concepts. Kryptek’s

Case 1:15-cv-00348-RC Document 1 Filed 09/09/15 Page 1 of 47 PageID #: 1


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apparel consistently delivers the performance expectations, comfort, function and durability

required by customers in the hunting and outdoor adventure markets.

3. Kryptek has developed camouflage patterns that are the leader in the industry.

These patented designs have even been tested by the Department of Defense using laser-retinal-

tracking to prove the effectiveness and superiority of Kryptek’s designs.

4. Kryptek markets its goods and services to customers throughout the United States

by way of extensive media advertising, including on radio, television, Facebook, Twitter, e-mail

promotions, and on Kryptek’s websites, including www.kryptek.com and

www.kryptekstore.com.

5. Kryptek has invested significantly in its business as well as its branding, including

use of its five separate trademarks for “KRYPTEK.” Kryptek has further obtained patent

protection and copyright registrations for its one-of-a-kind camouflage patterns. As a result of its

extensive advertising, provision of goods and services, sound business practices, and operations,

Kryptek has developed enforceable statutory and/or common law trademark, trade name, and

trade dress rights in the marks and has established strong relationships with customers who have

come to recognize and respect the goods and services identified by Kryptek and identified by

Kryptek’s trademarks, patents, copyrights, and trade dress. Accordingly, Kryptek has developed

substantial goodwill and a reputation for integrity in its market, both of which are inextricably

intertwined with Kryptek’s trademarks, patents, copyrights, and trade dress.

6. Kryptek’s trademarks (“Kryptek Marks”) and trade dress (“Kryptek Trade

Dress”) are distinctive and well known as used in connection with the goods and services offered

by Kryptek, resulting in recognition that the goods and services offered under the marks and

trade dress emanate under a single source – namely Kryptek. There is a likelihood of confusion


http://www.kryptek.com/http://www.kryptek.com/http://www.kryptekstore.com/http://www.kryptekstore.com/http://www.kryptekstore.com/http://www.kryptek.com/


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with respect to the above-mentioned customers unless Defendants are enjoined against further

unlawful conduct.

7. The goodwill embodied in the Kryptek Marks and Kryptek Trade Dress, and

consequently Kryptek’s valuable reputation and credibility in the industry, depends on the

integrity of its goods and services as being identified exclusively with Kryptek – and not any

other source.

8. This lawsuit is brought to stop Defendants’ infringement of valuable intellectual

property rights, including Kryptek’s trademarks, patents, copyrights, and trade dress relating to

Kryptek’s business, from passing off Defendants’ operations as those of Kryptek, including

engaging in activities likely to cause confusion, or to cause mistake, or to deceive as to the

affiliation, connection, or association of such person with another person, or as to the origin,

sponsorship, or approval of his or her goods, services, or commercial activities by another

person.

9. Recognizing Kryptek’s popularity, superiority and quality, Defendants have

brazenly created, offered for sale, and sold counterfeit copies of Kryptek’s camouflage patterns

and products incorporating Kryptek’s camouflage patterns in an attempt to capitalize on

Kryptek’s hard-earned success through the following websites: www.saltarmour.com;

www.sateam.company; www.defensearmour.com; www.spgapparel.com; and

www.safishing.com. Defendants’ products are nearly an exact copy of Kryptek’s patented and

copyrighted designs, as well as nearly an exact copy of Kryptek’s goods and services.

10. Defendants have further brazenly copied the Kryptek Marks, and co-opted its

good name by displaying products under the moniker “KRYTEK KRONOS” on the website


http://www.saltarmour.com/http://www.saltarmour.com/http://www.sateam.company/http://www.sateam.company/http://www.defensearmour.com/http://www.defensearmour.com/http://www.spgapparel.com/http://www.spgapparel.com/http://www.safishing.com/http://www.safishing.com/http://www.safishing.com/http://www.spgapparel.com/http://www.defensearmour.com/http://www.sateam.company/http://www.saltarmour.com/


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www.spgapparel.com. Such activity falsely represents to the relevant public that there is an

association with Plaintiff Kryptek.

11. Defendants’ products and services are identical-or confusingly similar to the

Kryptek Marks and Kryptek Trade Dress. Defendants’ actions are an apparent intentional effort

to imitate and/or cause confusion with respect to Kryptek’s successful business.

12. On information and belief, Plaintiff and Defendants have a direct overlap in

customers insofar as they both draw from, and thus compete for, the same pool of customers

(e.g., customers who purchase hunting and outdoor apparel and other items).

13.

Defendants’ infringement of Kryptek’s intellectual property rights harms Kryptek,

Kryptek’s customers, and potential customers of Kryptek who may be confused and deceived by

Defendants’ business and/or Defendants’ unauthorized reproduction and/or imitation of

Kryptek’s trademarks and patented and copyrighted camouflage designs.

14. Defendants’ unauthorized use of the Kryptek Marks, Kryptek Patents, Kryptek

Copyrights, and Kryptek Trade Dress unjustly enriches Defendants at Plaintiff’s expense.

Defendants have been and continue to be unjustly enriched, obtaining a benefit from Plaintiff by

taking undue advantage of Plaintiff and its extensive goodwill. Specifically, Defendants have

taken unfair advantage of Plaintiff by trading on and profiting from the goodwill in the marks

developed and owned by Plaintiff, resulting in Defendants wrongfully obtaining a monetary and

reputational benefit for their own business and services.

15. Defendants’ unauthorized use of Kryptek’s Intellectual Property removes from

Plaintiff the ability to control the nature and quality of services provided under Kryptek’s

Intellectual Property and places the valuable reputation and goodwill of Plaintiff in the hands of

Defendants, over whom Plaintiff has no control.


http://www.spgapparel.com/http://www.spgapparel.com/http://www.spgapparel.com/


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16. Defendants’ conduct has caused, and is causing, unless immediately enjoined,

enormous and irreparable harm to Kryptek. Plaintiff respectfully seeks intervention of this Court

to stop Defendants from continuing their present activities and for monetary damages. Kryptek

will be promptly seeking injunctive relief.

II. THE PARTIES

17. Plaintiff Kryptek Outdoor Group, LLC (“Kryptek” or “Plaintiff”) is a Limited

Liability Company organized in Delaware and having a principal place of business at 291 E.

Shore Dr., Suite 150, Eagle, Idaho, 83616.

18.

On information and belief, Defendant Salt Armour, Inc. (“Salt Armour”) is a

Florida corporation with its principal place of business at 21526 Sweetwater LN S, Boca Raton,

Florida, 33428. Salt Armour can be served with process at its registered agent, Kevin P.

Kassebaum, 7015 Beracasa Way, Suite 105, Boca Raton, Florida, 33433.

19. On information and belief, Defendant Salt Armour operates the following

websites located at www.saltarmour.com; www.sateam.company; www.defensearmour.com;

www.safishing.com; www.spgapparel.com; and www.sellmyoutdoorstuff.com.

20. On information and belief, Defendant Salt Armour owns, operates, and/or has a

controlling interest in www.sateam.company; and http://safishing.com; as well as the products

sold on these websites, labeled “SA Co.” and “SA Co. by Salt Armour,” in addition to the fact

that Salt Armour is the registrant of www.sateam.company. On information and belief,

Defendant Salt Armour owns, operates, and/or has a controlling interest in

http://sellmyoutdoorstuff.com because the site proclaims that it is “Powered By SA Co.”

21. On information and belief, Defendant Salt Armour owns, operates, and/or has a

controlling interest in Defendant Alpha Defense, Inc. (“Alpha Defense”) because Salt Armour is


http://www.saltarmour.com/http://www.saltarmour.com/http://www.sateam.company/http://www.sateam.company/http://www.defensearmour.com/http://www.defensearmour.com/http://www.safishing.com/http://www.safishing.com/http://www.spgapparel.com/http://www.spgapparel.com/http://www.spgapparel.com/http://www.sellmyoutdoorstuff.com/http://www.sellmyoutdoorstuff.com/http://www.sellmyoutdoorstuff.com/http://www.sateam.company/http://www.sateam.company/http://www.safishing.com/http://www.safishing.com/http://www.safishing.com/http://www.sateam.company/http://www.sateam.company/http://www.sellmyoutdoorstuff.com/http://www.sellmyoutdoorstuff.com/http://www.sellmyoutdoorstuff.com/http://www.sellmyoutdoorstuff.com/http://www.sateam.company/http://www.safishing.com/http://www.sateam.company/http://www.sellmyoutdoorstuff.com/http://www.spgapparel.com/http://www.safishing.com/http://www.defensearmour.com/http://www.sateam.company/http://www.saltarmour.com/


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the registrant of the website that promotes and sells the products of Alpha Defense, Inc.,

www.defensear mour.com, under the moniker “Defense Armour.” (See Exhibit A). Further, the

companies share the same director, Thomas J. De Sernia. (See Exhibit B).

22. On information and belief, Defendant Salt Armour owns, operates and/or has a

controlling interest in www.spgapparel.com and the products sold on the website, labeled

“Swamp Slayer” because Salt Armour is the registrant of www.spgapparel.com, a website that

promotes and sells products similar to those sold by Salt Armour and Alpha Defense. (See

Exhibit C)

23.

On information and belief, Defendant Alpha Defense is a Florida corporation with

its principal place of business at 21526 Sweetwater LN S, Boca Raton, Florida, 33428. Alpha

Defense can be served with process at its registered agent, Kevin P. Kassebaum, 7015 Beracasa

Way, Suite 105, Boca Raton, Florida, 33433.

24. On information and belief, Defendant Thomas J. De Sernia is the incorporator,

President, and majority shareholder of both Salt Armour and Defense Armour. Defendant

Thomas J. De Sernia can be served personally at his place of business, located at 21526

Sweetwater LN S, Boca Raton, Florida, 33428.

25. On information and belief, Defendants Salt Armour, Alpha Defense, and Thomas

J. De Sernia (“Defendants”) have committed the acts alleged herein within this judicial district.

III. THE PATENTS

26. On April 2, 2013, United States Design Patent No. D679,099, titled “Sheet

Material With Camouflage Pattern” (“the ‘099 Patent”) was duly and legally issued by the

United States Patent and Trademark Office (“USPTO”). A true and correct copy of the ‘099

Patent is attached as Exhibit D.


http://www.spgapparel.com/http://www.spgapparel.com/http://www.spgapparel.com/http://www.spgapparel.com/http://www.spgapparel.com/http://www.spgapparel.com/


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27. On July 16, 2013, United States Design Patent No. D685,999, titled “Sheet



Patent is attached as Exhibit E.

28. On July 16, 2013, United States Design Patent No. D686,000, titled “Sheet



Patent is attached as Exhibit F.

29.

Kryptek is the owner by assignment of the ‘099 Patent, the ‘999 Patent, and the

‘000 Patent (the “Kryptek Patents”). Kryptek has all substantial rights in and to the Kryptek

Patents, including the right to sue and collect damages for past, present and future infringement

of the Kryptek Patents. Kryptek has owned the Kryptek Patents throughout the period of

Defendants’ infringing acts and is the current owner of the Kryptek Patents.

IV. THE TRADEMARKS

30.

Plaintiff re-alleges and incorporates by reference the foregoing allegations as

though fully set forth herein.

31. Plaintiff has registered “KRYPTEK” as U.S. Trademark Registration No.

4,342,885 on the Principal Register of the United States Patent and Trademark Office, a true and

correct copy of the Certificate of Registration is attached in Exhibit G.






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34. Plaintiff has registered “KRYPTEK HIGHLANDER” as U.S. Trademark

Registration No. 4,478,518 on the Principal Register of the United States Patent and Trademark

Office, a true and correct copy of the Certificate of Registration is attached in Exhibit G.

35. Plaintiff has registered “KRYPTEK” as U.S. Trademar k Registration No.



IV. THE COPYRIGHTS

36.

Plaintiff re-alleges and incorporates by reference the foregoing allegations as


37. Kryptek is the copyright owner and legal claimant in and to various camouflage

patterns as seen below:

38. Kryptek is the owner of the following Copyright Registrations, duly and legally

issued by the United States Copyright Office (the “Kryptek Copyrights”). Copies of these

registrations are attached as Exhibit H.



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Registration No. Title Date Issued

VA0001783604 Highlander Camouflage July 25, 2011

VA0001783605 Mandrake Camouflage July 25, 2011

VA0001783606 Kryptek Camouflage Patterns July 25, 2011

VA0001783608 Nomad Camouflage July 25, 2011

VA0001829638 Kryptek Typhon Camouflage June 26, 2012

VA0001829646 Kryptek Raid Camouflage June 26, 2012

VA0001833727 Kryptek Yeti Camouflage September 25, 2012

VA0001931269 Kryptek Neptune Camouflage October 14, 2014

VA0001931271 Kryptek Altitude Camouflage October 14, 2014

VA0001931338 Kryptek Banshee Camouflage October 14, 2014

VA0001950891 Kryptek Inferno Camouflage February 20, 2015

VA0001951037 Kryptek Universal Camouflage February 20, 2015

V. JURISDICTION AND VENUE

39. Plaintiff re-alleges and incorporates by reference the foregoing allegations as


40.

The Court has subject matter jurisdiction over this case because the action arises

under the patent laws of the United States, Title 35 United States Code, 101 et seq. This Court

also has subject matter jurisdiction under 17 U.S.C. § 501, 15 U.S.C. § 1125, and under 28

U.S.C. §§ 1331, and 1338, and has supplemental jurisdiction over the state law claims under 28

U.S.C. §1367(a).

41. This Court has specific personal jurisdiction over Defendants because they have

purposefully availed themselves of the privilege of conducting business in Texas. By doing

business in Texas, Defendants have consented to the jurisdiction of Texas and are therefore

subject to jurisdiction in this state as set forth under Texas Civil Practices and Remedies Code §

17.042. Defendants offer, market, and promote their goods and services which infringe the



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patents and copyrights that are the subject of this lawsuit through their websites and other means

to consumers located in Texas and use their infringing goods and services to promote and

advertise their goods and services in Texas and elsewhere.

42. This Court has specific personal jurisdiction over Defendants because they have

sold infringing goods to customers in this district and have shipped infringing goods to

customers in this district. Kryptek’s causes of action arise directly from Defendants’ business

contacts and other activities in this state and in this district.

43. On information and belief, Defendant has willfully and voluntarily committed the

acts complained of herein in at least this State.

44. On information and belief, venue is proper under 28 U.S.C. § 1391 and 1400(b).

VI. FACTUAL ALLEGATIONS

A. KRYPTEK’S INTELLECTUAL PROPERTY

45. Plaintiff re-alleges and incorporates by reference the foregoing allegations as


46.

Since at least as early as 2011 and continuing into the present, Kryptek has been

marketing and selling goods and services that incorporate Kryptek’s patented and copyrighted

camouflage designs, as well as that embody Kryptek’s trade dress. Kryptek’s use of its

intellectual property has been continuous and continues today.

Kryptek’s Patents

47. Kryptek is the sole assignee of the Kryptek Patents. Examples of the designs

covered under the Kryptek Patents are reproduced below.



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-the ‘099 Patent

-the ‘000 Patent -the ‘999 Patent



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Kryptek’s Trademarks

48. Kryptek’s trademarks (the “Kryptek Marks”) protect not only the term

“KRYPTEK” but various design/word trademarks that also contain the term “KRYPTEK.” The

chart below identifies each of Kryptek’s registered trademarks.

Trademark/Goods and Services

Reg. No. DateRegistered

Owner Register

4342885 5/28/2013 KryptekOutdoor

Group, LLC

Principal

International Class 042 - Custom design of camouflage patterns for others.

KRYPTEK4463207 1/7/2014 Kryptek

OutdoorGroup, LLC

Principal

International Class 016 - Printed or painted camouflage patterns for hard surfaces.

International Class 018 - Bags, namely, backpacks, duffel bags, waist bags, slings, luggage andsatchels, including camouflage, military, tactical, hunting and outdoor-recreation styles andcombinations thereof.

International Class 024 - Textiles, namely, cotton, wool yarn, silk, hemp yarn, and synthetic fabricsin solid colors or in patterns, including camouflage patterns.


Group, LLC

Principal

International Class 016 - Printed and painted paper materials, namely, paper patterns featuringcamouflage patterns.

International Class 018 - Bags, namely, backpacks, leather and/or textile ammo pouches, duffel bags,waist bags, sling bags, luggage and satchels, all featuring camouflage, military, tactical, hunting andoutdoor-recreation styles.

International Class 024 - Textiles, namely, cotton, wool, silk, hemp and synthetic fabrics in solidcolors, patterns, and camouflage patterns.



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International Class 042 - Custom design of camouflage patterns for others.

KRYPTEK HIGHLANDER4478518 2/4/2014 Kryptek

OutdoorGroup, LLC

Principal

International Class 025 - Clothing, namely, shirts, pants, coats, jackets, caps, hats, foul weather gear,rainwear, gloves, shorts, sweaters, fleece tops, fleece bottoms, hooded pullovers, sweatshirts, teeshirts, vests, belts, blouses, headwear, balaclavas, face masks, namely, knit face masks and skimasks, coveralls, overalls, jeans, footwear, socks, undergarments, insulating layers and shells,namely, thermal underwear, including camouflage, military, tactical, hunting, outdoor-recreation,thermal, and moisture-wicking styles and combinations thereof.

KRYPTEK


Group, LLC

Principal

International Class 025 - Clothing, namely, shirts, pants, coats, jackets, caps, hats, foul weather gear,rainwear, gloves, shorts, sweaters, fleece tops, fleece bottoms, hooded pullovers, sweatshirts, teeshirts, vests, belts, blouses, headwear, balaclavas, face masks, namely, knit face masks and skimasks, coveralls, overalls, jeans, footwear, socks, undergarments, insulating layers and shells,namely, thermal underwear, including camouflage, military, tactical, hunting, outdoor-recreation,thermal, and moisture-wicking styles and combinations thereof.

Kryptek’s Copyrights

49.

K ryptek’s copyrighted designs protect various color variations of Kryptek’s

camouflage designs. The chart below provides further detail of the Kryptek Copyrights.

Registration

No. & Title

Example Design

VA0001783604HighlanderCamouflage

VA0001783605Mandrake

Camouflage



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VA0001783608 Nomad

Camouflage

VA0001829638Kryptek Typhon

Camouflage

VA0001829646Kryptek RaidCamouflage

VA0001833727Kryptek YetiCamouflage

VA0001931269Kryptek

NeptuneCamouflage



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VA0001931271KryptekAltitude

Camouflage

VA0001931338KryptekBanshee

Camouflage

VA0001950891Kryptek Inferno

Camouflage

50. Under Section 106 of the Copyright Act of 1976, 17 U.S.C. § 101 et seq. (the

“Copyright Act”), Kryptek has the distinct, severable, and exclusive rights to, among other

things, reproduce and distribute their copyrighted works and to prepare derivative works.



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Defendants have not received any authorization, permission, or consent to use or create

derivative works of the copyrighted works at issue in this lawsuit.

Kr yptek’s Trade Dress

51. Since at least 2011, Plaintiff has continually used the Kryptek Trade Dress

throughout the United States in commerce. As a result, the Kryptek Trade Dress has acquired

inherent distinctiveness. The Kryptek Trade Dress serves to identify and indicate the source of

Kryptek’s goods and services to those in the relevant market. The Kryptek Trade Dress is

embodied in the products that it sells using its patented and copyrighted designs. A few

examples are provided below.



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52. Kryptek has extensively advertised and promoted its goods and services and has

developed substantial recognition in the marketplace for its goods and services bearing the



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Kryptek Trade Dress. Kryptek ’s advertising has included radio, television, Facebook, Twitter,

brochures, correspondence, e-mail, the Internet, and in other manners customary to the trade.

Kryptek also regularly interacts and conducts business with its clients via the telephone,

facsimile, mail and/or e-mail using the Kryptek Trade Dress.

53. As a result of Kryptek ’s use and promotion, the Kryptek Trade Dress has become

distinctive to designate Kryptek, to distinguish Kryptek and its goods and services from those of

others, and to distinguish the source or origin of Kryptek ’s goods and services. As a result of

these efforts by Kryptek, consumers in the relevant market throughout the United States widely

recognize and associate the trade dress with Kryptek.

54. As a result of Plaintiff’s long use and promotion of the Kryptek Trade Dress in

the United States, Plaintiff has acquired valuable common law rights in the Kryptek Trade Dress.

55. Through its consistent and continuous use, advertising, and third-party media

attention, Kryptek has developed enforceable statutory and/or common law trade dress rights in

the Kryptek Trade Dress. Kryptek has established fame and substantial goodwill with its

customers via the Kryptek Trade Dress and has developed an excellent reputation throughout the

United States. In addition, Plaintiff has invested significantly in advertising the Kryptek Trade

Dress, in association with its business.

B. DEFENDANTS’ INFRINGING ACTIVITIES

56. Upon information and belief, Defendants were and are knowledgeable about

Kryptek’s intellectual property rights, including the Kryptek Marks, Patents, Copyrights and the

Kryptek Trade Dress. Consequently, Defendants are intentionally infringing Plaintiff’s

intellectual property rights in order to steal and/or capitalize upon Kryptek’s intellectual property

and goodwill.



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57. On August 20, 2015, Kryptek sent Defendants a letter that provided notice to

Defendants of the Kryptek Patents, the Copyrighted designs and the Kryptek Trade Dress and

identified the infringing products. (See Exhibit I). Kryptek requested that Defendants

immediately cease all infringing activity but to date, Defendants continue to infringe.

58. Upon information and belief, by at least August 20, 2015 Defendants have had

actual notice of the Kryptek Patents, the Copyrighted designs and the Kryptek Trade Dress, and

that their actions constitute willful and intentional infringement of the intellectual property

59. Despite the knowledge that its products and services infringe Kryptek’s

intellectual property, Defendants refused to cease their infringing activity and continue such

activity to this day.

60.

Defendants have infringed, and continue to directly infringe, at least claim 1 in

each of the Kryptek Patents by making, using, selling, offering for sale, and/or importing one or

more of the infringing products identified in Exhibit J (“Defendants’ Infringing Products”). An

ordinary observer, familiar with the prior art, would be deceived into believing that the infringing

designs utilized by Defendants are the same as Kryptek’s patented designs.

61. Defendants have further induced and contributed to infringement of the Kryptek

Patents. Defendants intentionally and actively induce infringement the Kryptek Patents by the

public, by Defendants’ manufacturers, Defendants’ distributors, Defendants’ retailers,

Defendants’ partners and by Defendants’ website users, customers, and/or end users who import,

make, use, sell, and/or offer to sell at least one or more of Defendants’ Infringing Products.

62. At least as early as August 20, 2015, Defendants have had actual knowledge of

the Kryptek Patents as a matter of law.



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63. At least as early as August 20, 2015, Defendants have been willfully blind toward

the existence of the Kryptek Patents.

64. Upon information and belief, since becoming aware of the Kryptek Patents,

Defendants have continued to intentionally, knowingly, and actively advertise, sell, and offer to

sell Defendants’ Infringing Products at least through Defendants’ websites,

www.saltarmour.com; www.sateam.company; www.defensearmour.com; www.safishing.com;

and www.spgapparel.com.

65. Upon information and belief, since becoming aware of the Kryptek Patents,

Defendants have continued to intentionally, knowingly, and actively cause and/or influence the

public, Defendants’ manufacturers, Defendants’ distributors, Defendants’ retailers, Defendants’

partners, and Defendants’ website users, customers, and/or end users to import, make, use, sell,

and/or offer to sell at least one or more of Defendants’ Infringing Products, and/or practice the

inventions claimed in the Kryptek Patents.

66. Defendants have directly infringed the Kryptek Marks through their use of

Kryptek’s marks on the we bsite www.spgapparel.com to sell infringing products. (See Exhibit

K). Defendants intentionally label their infringing products as “Kryptek Kronos,” a deliberate

attempt to associate their infringing goods with Plaintiff’s established marks and goodwill. The

services offered under Defendants’ moniker “Kryptek Kronos” are identical to or closely related

to the services offered under the Kryptek Marks.

67. The Kryptek Marks were first used in interstate commerce in the United States

before Defendants’ “Kryptek Kronos” was first used anywhere.

68. Given that the parties operate in the same industry and targeting the same market,

Defendants unauthorized use of the Kryptek Marks is likely to cause confusion, to cause mistake,


http://www.saltarmour.com/http://www.saltarmour.com/http://www.sateam.company/http://www.sateam.company/http://www.defensearmour.com/http://www.defensearmour.com/http://www.safishing.com/http://www.safishing.com/http://www.spgapparel.com/http://www.spgapparel.com/http://www.spgapparel.com/http://www.spgapparel.com/http://www.spgapparel.com/http://www.spgapparel.com/http://www.spgapparel.com/http://www.safishing.com/http://www.defensearmour.com/http://www.sateam.company/http://www.saltarmour.com/


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and/or to deceive customers and potential customers of the parties, as least as to some affiliation,

connection, or association of Defendants with Plaintiff, or as to the origin, sponsorship, or

approval of Defendants’ infringing products by Plaintiff.

69. Defendants’ unauthorized use of the marks falsely designates the origin of its goods

and services, and falsely and misleadingly describes and represents facts with respect to its goods and

services.

70.

Defendants’ unauthorized use of the Kryptek Marks enables Defendants to trade on

and receive the benefit of goodwill built up at great labor and expense by Plaintiff, and to gain

acceptance for its goods and services not solely on its own merits, but on the reputation and goodwill

of Plaintiff, its Marks, and its services.

71. Defendants’ unauthorized use of the moniker “Kryptek Kronos” is likely to cause

dilution of the Kryptek Marks under 15 U.S.C. § 1125(c) and in violation of Texas Business and

Commercial Code § 16.103.

72. Defendants have further directly infringed, and continue to directly infringe

Kryptek’s copyrighted designs by, without permission or authorization, making and selling exact

copies of Kryptek’s copyrighted designs, as well as by making and selling derivative works

based on Kryptek’s copyrighted designs without permission or authorization on the websites

www.saltarmour.com; www.sateam.company; www.defensearmour.com; www.safishing.com;

www.spgapparel.com and www.sellmystuff.com.

73. Defendants have further induced and contributed to infringement of Kryptek’s

copyrighted designs, by intentionally inducing and/or causing Defendants’ manufacturers,

distributers, retailers, partners, Defendants’ website users, customers and/or end users to create

unauthorized reproductions and/or derivative works of Kryptek’s copyrighted designs.


http://www.saltarmour.com/http://www.saltarmour.com/http://www.sateam.company/http://www.sateam.company/http://www.defensearmour.com/http://www.defensearmour.com/http://www.safishing.com/http://www.safishing.com/http://www.spgapparel.com/http://www.spgapparel.com/http://www.sellmystuff.com/http://www.sellmystuff.com/http://www.sellmystuff.com/http://www.sellmystuff.com/http://www.spgapparel.com/http://www.safishing.com/http://www.defensearmour.com/http://www.sateam.company/http://www.saltarmour.com/


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74. Defendant Thomas J. De Sernia, as an officer of both Defendants Salt Armour

and Alpha Defense, has the right and ability to supervise and control the infringing conduct of

Defendants Salt Armour and Alpha Defense. De Sernia has refused to exercise such supervision

and control to prevent the infringing activities of Defendants Salt Armour and Alpha Defense.

Further, De Sernia derives a direct financial benefit from the infringing activity as an officer of

both companies, including obtaining a financial benefit that directly flows from the sale of

infringing goods and services by Defendants Salt Armour and Alpha Defense.

75. Defendants Infringing Products further infringe the Kryptek Trade Dress because

Defendants’ Infringing Products are confusingly similar to Kryptek’s goods and services sold

with the Kryptek Trade Dress. Defendants’ use of the Kryptek Trade Dress in connection with

the infringing products is likely to cause confusion, mistake, or to deceive as to the affiliation,

connection, or association of Defendants with Kryptek.

76. Defendants’ unauthorized use of the Kryptek Trade Dress falsely designates the

origin of its goods and services, and falsely and misleadingly describes and represents facts with

respect to its goods and services.

77. Def endants’ unauthorized use of the Kryptek Trade Dress, as well the Kryptek

Patents and Copyrighted designs, enables Defendants to trade on and receive the benefit of

goodwill built up at great labor and expense by Kryptek, and to gain acceptance for its goods and

services not solely on its own merits, but on the reputation and goodwill of Kryptek, the Kryptek

Trade Dress, and its goods and services.

78. Defendants’ unauthorized use of the Kryptek Trade Dress is likely to cause

dilution of the Kryptek Trade Dress under 15 U.S.C. § 1125(c) and in violation of Texas

Business and Commerce Code § 16.103.



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79. Defendants’ unauthorized use of the Kryptek Trade Dress, as well the Kryptek

Patents and Copyrighted designs, unjustly enriches Defendants at Kryptek ’s expense. Defendants

have been and continue to be unjustly enriched, obtaining a benefit from Kryptek by taking

unfair advantage of Plaintiff and its extensive goodwill. Specifically, Defendants have taken

unfair advantage of Kryptek by trading on and profiting from the goodwill in Kryptek’s

intellectual property developed and owned by Kryptek, resulting in Defendants wrongfully

obtaining a monetary and reputational benefit for its own business as well as goods and services.

80. Defendants’ unauthorized use of the Kryptek Trade Dress, as well the Kryptek

Patents and Copyrighted designs, removes from Kryptek the ability to control the nature and

quality of goods and services provided under its intellectual property, and places the valuable

reputation and goodwill of Kryptek in the hands of Defendants, over whom Kryptek has no

control.

81. Unless Defendants’ acts are restrained by this Court, they will continue, and they

will continue to cause irreparable injury to Kryptek and to the relevant public for which there is

no adequate remedy at law.

VII. CAUSES OF ACTION

Count 1: Direct Patent Infringement of U.S. Patent D679,099 Under 35 U.S.C. § 271(a)

82. Plaintiff repeats the allegations above as if fully set forth herein.

83. This is a claim for direct patent infringement under 35 U.S.C. § 271(a).

84. Defendants, directly and through their agents, employees and servants, have and

continue to knowingly, intentionally, and willfully directly infringe U.S. Patent No. D679,099

(“the ‘099 Patent”) by making, using, selling, offering for sale, and/or importing products,



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including Defendants’ Infringing Products, which have camouflage designs that are covered by

the claim of the ‘099 Patent.

85. Defendants’ acts of infringement of the ‘099 Patent were undertaken without

permission or license from Kryptek. Upon information and belief, Defendants have actual

knowledge of the ‘099 Patent, including knowledge that its actions constitute willful and

intentional infringement of the ‘099 Patent.

86. As a direct and proximal result of Defendants’ patent infringement, Defendants

have derived and received gains, profits, and advantages in an amount not presently known to

Kryptek.

87. Pursuant to 35 U.S.C. § 284, Kryptek is entitled to damages for Defendants’

infringing acts and treble damages together with interests and costs as fixed by this Court.

88. Pursuant to 35 U.S.C. § 289, Kryptek is entitled to Defendants’ total profits from

the sale of Defendants’ goods that infringe the ‘099 Patent.

89. Pursuant to 35 U.S.C. § 285, Kryptek is entitled to reasonable attorneys’ fees for

the necessity of bringing this claim.

90. Due to the aforesaid infringing acts, Kryptek has suffered great and irreparable

injury, for which Kryptek has no adequate remedy at law.

91. Defendants will continue to directly infringe the ‘099 Patent to the great and

irreparable injury of Kryptek, unless enjoined by this Court.

Count 2: Inducement of Infringement of U.S. Patent D679,099 Under 35 U.S.C. § 271(b)


93. This is a claim for inducing patent infringement under 35 U.S.C. § 271(b).



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continue to knowingly, intentionally, and willfully induced others to infringe the ‘099 Patent.

Defendants induced Defendants’ manufacturers to infringe the ‘099 Patent by causing to be

made or manufactured products, including Defendants’ Infringing Products, which have

camouflage designs that are covered by the claim of the ‘099 Patent. Defendants, because of

their prior knowledge of the ‘099 Patent, intended to cause Defendants’ manufacturers to

infringe the ‘099 Patent by inducing the manufacture of infringing goods. Defendants further

induced Defendants’ distributors, retailers, partners and customers to infringe the ‘099 Patent by

using, selling, offering for sale, and/or importing products, including Defendants’ Infringing

Products, which have camouflage designs that are covered by the claim of the ‘099 Patent.

95.

Defendants had actual knowledge of the ‘099 Patent because Kryptek informed

Defendants of the ‘099 Patent and of Defendants’ infringement on August 20, 2015. Because

they knew of the ‘099 Patent and had been warned that their actions were infringing, by

continuing in those infringing acts to the present day, Defendants had knowledge that their

actions and the actions they induced others to perform constitute patent infringement.

96. Upon information and belief, since becoming aware of the ‘099 Patent,

Defendants have been willfully blind, knew, or should have known that the acts of Defendants’

manufacturers, distributors, retailers, and customers relative to the making, using, selling,

offering for sale, and/or importing goods containing camouflage design, including Defendants’

Infringing Products, practice the invention claimed in the ‘099 Patent and directly infringe at

least claim 1 of the ‘099 Patent.





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98. Defendants will continue to indirectly infringe the ‘099 Patent to the great and


Count 3: Contributory Infringement of U.S. Patent D679,099 Under 35 U.S.C. § 271(c)


100. This is a claim for contributory patent infringement under 35 U.S.C. § 271(c).

101. The camouflage designs of Defendants’ goods, including Defendants’ Infringing

Products, constitute a material part of the invention claimed in the ‘099 Patent. The camouflage

designs are not staple articles and are not commodities of commerce suitable for a non-infringing

use because the camouflage designs have no use other than as part of the patented design.


Defendants have been willfully blind, knew, or should have known that Defendants’ goods

containing camouflage design, including Defendants’ Infringing Products, and the components

thereof were especially made and/or especially adapted for use in infringing the ‘099 Patent.




thereof were not staple articles or commodities of commerce suitable for substantial

noninfringing use.

104. By selling, offering to sell, and/or importing into the United States goods


thereof, Defendants have contributed to the infringement of distributors, retailers, and/or

customers who sell, offer for sale, purchase, make, and/or use Defendants’ goods containing



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camouflage design, including Defendants’ Infringing Products, to practice the invention claimed

in the ‘099 Patent, and thus directly infringes the ‘099 Patent.







108.

This is a claim for direct patent infringement under 35 U.S.C. § 271(a).






110.

Defendants’ acts of infringement of the ‘999 Patent were undertaken without






Kryptek.





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118.

This is a claim for inducing patent infringement under 35 U.S.C. § 271(b).











120. Defendants had actual knowledge of the ‘999 Patent because Kryptek informed




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121. Upon information and belief , since becoming aware of the ‘999 Patent,











124.

Plaintiff repeats the allegations above as if fully set forth herein.










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noninfringing use.













133. This is a claim for direct patent infringement under 35 U.S.C. § 271(a).






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135. Defendants’ acts of infringement of the ‘000 Patent were undertaken without






Kryptek.













143. This is a claim for inducing patent infringement under 35 U.S.C. § 271(b).



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145. Defendants had actual knowledge of the ‘000 Patent because Kryptek informed















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noninfringing use.







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Count 10: Federal Trademark Infringement under 15 U.S.C. § 1114(1).


158.

The acts of Defendants complained of herein constitute infringement of Plaintiff’s

federally registered trademarks, Nos. 4342885, 4463207, 4411623, 4478518, and 4683587 in

violation of 15 U.S.C. § 1114(1).

159. Defendants’ acts complained of herein have been deliberate, willful, intentional,

and in bad faith, with full knowledge and conscious disregard of Plaintiff’s rights in the Kryptek

Marks, and with intent to cause confusion and to trade on Plaintiff’s extensive goodwill in the

Kryptek Marks. In view of the egregious nature of Defendants’ infringement, this is an

exceptional case within the meaning of 15 U.S.C. § 1117(a).

Count 11: Common Law Trademark Infringement


161. The acts of Defendants complained of herein constitute trademark infringement in

violation of the common law of this State.

Count 12: Direct Copyright Infringement Under 17 U.S.C. § 501




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163. Defendants have directly infringed the Kryptek Copyrights by reproducing the

Kryptek’s copyrighted works, by preparing derivative works based on Kryptek’s copyrighted

works, and by distributing the copies and/or derivative works to the public by sale without

authorization in violation of 17 U.S.C. § 106 et seq and § 501.

164. Each infringement of the Kryptek Copyrights by Defendants constitutes a separate

and distinct act of infringement.

165. Defendants’ acts of infringement were willful, and in disregard to Kryptek’s

rights.

166.

As a direct and proximate result of Defendants’ infringements, Kryptek is entitled

to damages and Defendants’ profits.

167.

Alternatively, Kryptek is entitled to the maximum statutory damages in the

amount of $150,000 with respect to each work infringed, or for such other amounts as may be

proper un 17 U.S.C. § 504.

168. Kryptek is further entitled to recover its attorney’s fees and costs pursuant to 17

U.S.C. § 505.

169. Defendants are each jointly and severally liable for damages resulting from the

acts of infringement, as well as for Kryptek’s attorney’s fees and costs.

170. As a direct and proximate result of Defendants’ infringements, Kryptek has

sustained and will continue to sustain substantial, immediate and irreparable injury, for which

there is no adequate remedy at law. Unless enjoined and restrained by this Court, Defendants

will continue to infringe Kryptek’s rights in the Kryptek Copyrights and thus Kryptek is entitled

to injunctive relief.

Count 13: Contributory Copyright Infringement Under 17 U.S.C. § 501



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172. Defendants have infringed the Kryptek Copyrights by knowingly and materially

contributing to, intentionally inducing, and/or causing Defendants’ manufacturers, distributors,

retailers, and/or customers to infringe the Kryptek Copyrights. Defendants have materially

contributed to, intentionally induced, and/or caused unauthorized reproductions, derivative

works, distributions, and/or public display of the Kryptek Copyrights without authorization in

violation of 17 U.S.C. § 106 et seq and § 501. Notwithstanding such knowledge, Defendants

have failed to take any measures, including measures readily available to Defendants, to prevent

further damage to the Kryptek Copyrights.



174. Defendants’ acts of infringement were willful, and in disregard to Kryptek’s

rights.

175. As a direct and proximate result of Defendants’ infringements, Kryptek is entitled


176. Alternatively, Kryptek is entitled to the maximum statutory damages in the




U.S.C. § 505.





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Count 14: Inducing Copyright Infringement Under 17 U.S.C. § 501


181. Defendants have infringed the Kryptek Copyrights by inducing Defendants’

manufacturers, distributors, retailers, and/or customers to reproduce, prepare derivative works,

and/or distribute to the public copies and/or derivative works based on the Kryptek Copyrights

without authorization in violation of 17 U.S.C. § 106 et seq and § 501.



183. As a direct and proximate result of Defendants’ infringements, Kryptek is entitled


184. Alternatively, Kryptek is entitled to the maximum statutory damages in the




U.S.C. § 505.





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Count 15: Vicarious Copyright Infringement Under 17 U.S.C. § 501


189. Defendant Thomas J. De Sernia, as President and majority shareholder of both

Defendants Salt Armour and Apha Defense, has vicariously infringed the Kryptek Copyrights

because he has the right and ability to supervise and/or control the infringing conduct of

Defendants Salt Armour and Apha Defense. De Sernia has directly participated in and/or refused

to exercise his ability to supervise and control Defendants Salt Armour and Apha Defense to the

extent required by law. De Sernia was and is a moving active conscious force behind the

infringement of Defendants Salt Armour and Apha Defense. As a direct and proximate result of

such refusal, Defendants Salt Armour and Apha Defense, as well as Defendants’ manufacturers,

distributors, retailers, and/or customers have infringed the Kryptek Copyrights, including by

reproducing, preparing derivative works, and/or distributing to the public copies and/or

derivative works based on the Kryptek Copyrights without authorization in violation of 17

U.S.C. § 106 et seq and § 501.

190. Defendant De Sernia derives a direct financial benefit and has a direct financial

interest in the infringing activity, including but not limited to obtaining financial compensation

from Defendants Salt Armour and Apha Defense, including financial compensation flowing from

the sale of infringing goods, including Defendants’ Infringing Products by Defendants. Upon



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information and belief, Defendant De Sernia is the majority and/or sole shareholder in both

corporations, Salt Armour and Apha Defense. Accordingly, his financial interest in Defendants

Salt Armour and Apha Defense is directly related to the infringing activity.

191. Based on the above, Defendant De Sernia is vicariously and joint and severally

liable for an award of damages based on the infringement of himself, and/or the infringement of

Defendants Salt Armour and Apha Defense.

Count 16: Federal Trade Dress Infringement Under 15 U.S.C. § 1125(a)


193.

This is a claim for trade dress infringement under 15 U.S.C. § 1125(a).

194. After the use and adoption of the Kryptek Trade Dress, without authorization

Defendants have designed, developed, manufactured, imported, advertised and/or sold products,

including Defendants’ Infringing Products, which directly copy the Kryptek Trade Dress, and/or

use trade dress confusingly similar to the Kryptek Trade Dress. See below for an example:

Krypek Trade Dress Defendants’ Infringing Product

195. Defendants’ use of the Kryptek Trade Dress in connection with its goods is likely

to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or

association of Defendants with Kryptek.



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196. Kryptek is informed and believes, and thereon alleges, that Defendants’ acts of

trade dress infringement were undertaken willfully with the express intent to cause confusion,

and to mislead and deceive the purchasing public.

197. Kryptek is informed and believes, and thereon alleges, that Defendant has derived

and received, and will continue to derive and receive, gains, profits, and advantages from

Defendants’ trade dress infringement in an amount that is not presently known to Kryptek. By

reason of Defendants’ actions, constituting trade dress infringement, Kryptek has been damaged

and is entitled to monetary relief in an amount to be determined at trial.

198.

Due to Defendants’ actions, constituting trade dress infringement, Kryptek has

suffered and continues to suffer great and irreparable injury, for which Kryptek has no adequate

remedy at law.

199. In view of the egregious nature of Defendants’ infringement, this is an

exceptional case within the meaning of 15 U.S.C. § 1117(a) and Kyptek is entitled to damages

for Defendants’ infringing acts, up to three times actual damages, and its attorney’s fees.

Count 17: Federal Unfair Competition, Passing Off, and False Designation

Of Origin Under 15 U.S.C. § 1125(a)


201. This is a claim for unfair competition, passing off, and false designation of origin

under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).

202. Defendants’ use of the Kryptek Marks and Kryptek Trade Dress without

Kryptek’s consent constitutes a false designation of origin, which is which is likely to cause

confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of

Defendants with Kryptek, or as to the origin, sponsorship, or approval of Defendants’ goods



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and/or commercial activities by Kryptek in violation of 15 U.S.C. § 1125(a) and constitutes

unfair competition with Kryptek.

203. Defendants’ use of the Kryptek Marks and Kryptek Trade Dress without

Kryptek ’s consent constitutes a false designation of origin, which in commercial advertising or

promotion, misrepresents the nature, characteristics, qualities, or geographic origin of

Defendants’ goods or commercial activities in violation of 15 U.S.C. § 1125(a) and constitutes


204. Such conduct by Defendants is likely to confuse, mislead, and deceive

Defendants’ customers, purchasers, and members of the public as to the origin of the Kryptek

Marks and/or Kryptek Trade Dress or cause said persons to believe that Defendants and/or its

products have been sponsored, approved, authorized, or licensed by Kryptek or are in some way

affiliated or connected with Kryptek, all in violation of 15 U.S.C. § 1125(a) and constitutes


205. Kryptek is informed and believes, and thereon alleges, that Defendants’ actions

were undertaken willfully with full knowledge of the falsity of such designation of origin and

false descriptions or representations.

206. Kryptek is informed and believes, and thereon alleges, that Defendants have

derived and received, and will continue to derive and receive, gains, profits, and advantages from

Defendants’ unfair competition and false designation of origin in an amount that is not presently

known to Kryptek. By reason of Defendants’ actions, constituting unfair competition and false

designation of origin, Kryptek has been damaged and is entitled to monetary relief in an amount

to be determined at trial.



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207. Due to Defendants’ actions, constituting unfair competition and false designation

of origin, Kryptek has suffered and continues to suffer great and irreparable injury, for which

Kryptek has no adequate remedy at law.

208. Pursuant to 15 U.S.C. § 1117, Kryptek is entitled to damages for Defendants’ acts

constituting false designation of origin and unfair competition, up to three times actual damages,

and reasonable attorney’s fees.

Count 18: Common Law Trade Dress Infringement


210.

The acts of Defendants complained of herein constitute trade dress infringement

in violation of the common law of this State.

211. As a direct and proximate result of Defendants’ conduct, Kryptek has suffered

damages to its valuable Kryptek Trade Dress, and other damages in an amount to be proved at

trial.

Count 19: Common Law Unfair Competition

212.


213. The acts of Defendants complained of herein constitute unfair competition in

violation of the common law of this State.

Count 20: Federal Trademark Dilution


215. The acts of Defendants complained of herein constitute dilution of the Kryptek

Marks and Kryptek Trade Dress in violation of 15 U.S.C. § 1125(c).



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216. Defendants willfully intended to trade on the recognition of the Kryptek Marks

and/or the Kryptek Trade Dress and/or to harm the reputation of the Kryptek Marks and Kryptek

Trade Dress.


damages to its valuable Kryptek Marks and Kryptek Trade Dress, and other damages in an

amount to be proved at trial.

Count 21: Texas Trademark Law


219.

The acts of Defendants complained of herein are in violation of Texas Business

and Commerce Code § 16.103.


damages to its valuable Kryptek Marks and Kryptek Trade Dress, and other damages permitted

by Texas Business and Commerce Code § 16.104, in an amount to be proved at trial.

Count 22: Unjust Enrichment

221.


222. The acts of Defendants complained of herein constitute unjust enrichment of

Defendants at the expense of Kryptek.

223. Defendants’ acts complained of herein have caused and continue to cause damage

to Kryptek.

VIII. DEMAND FOR A JURY TRIAL

224. Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Kryptek

respectfully requests a trial by jury of all issues properly triable by jury.

IX. PRAYER FOR RELIEF



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225. WHEREFORE, Plaintiff requests entry of judgment in its favor and against

Defendants including the following:

a. A judgment declaring that Defendants infringe the ‘099 Patent;

b. A judgment declaring that Defendants infringe the ‘999 Patent;

c. A judgment declaring that Defendants infringe the ‘000 Patent;

d. Enter a preliminary and permanent injunction to enjoin Defendants and their

officers, agents, attorneys and employees, and those acting in privity or concert

with them, from infringing the ‘099 Patent for the full term thereof;

e.

Enter a preliminary and permanent injunction to enjoin Defendants and their



f. Enter a preliminary and permanent injunction to enjoin Defendants and their



g.

Award Plaintiff damages against Defendants adequate to compensate Plaintiff for

the infringement of the ‘099 Patent pursuant to 35 U.S.C. § 284 and/or 35 U.S.C.

§ 289;

h. Award Plaintiff damages against Defendants adequate to compensate Plaintiff for


§ 289;

i. Award Plaintiff damages against Defendants adequate to compensate Plaintiff for


§ 289;



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j. Find that the Defendants’ infringement is deliberate and willful, and that the

damages awarded to Plaintiff be trebled pursuant to 35 U.S.C. § 284;

k. A declaration that this is an exceptional case and an award of attorney’s fees,

disbursements, and costs of this action pursuant to 35 U.S.C.§ 285;

l. A judgement declaring that Defendants have infringed Plaintiff’s trademarks

under state and federal law;

m. A judgement awarding Plaintiff damages as a result of Defendants’ tr ademark

infringement with interests and costs;

n.

A judgment declaring that Defendants’ infringement of the marks has been willful

and deliberate;

o.

A judgment holding Defendants joint and severally liable;

p. A grant of permanent injunction enjoining the Defendants from further acts of

trademark infringement and unfair competition;

q. A judgement declaring that Defendants have infringed Plaintiff’s copyrights;

r.

A judgment declaring that Defendants’ infringement of Plaintiff’s copyrights is

intentional and willful;

s. A judgment awarding Plaintiff damages and Defendants’ profits, in such amount

as may be found; alternatively, for maximum statutory damages with respect to

each copyrighted work infringed either directly or indirectly, or for such other

amounts as may be proper under 17 U.S.C. § 504(c);

t. Enter a preliminary and permanent injunction pursuant to 17 U.S.C. § 502 to

enjoin Defendants and their officers, agents, attorneys and employees, and those

acting in privity or concert with them, from (a) directly or indirectly reproducing,



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preparing derivative works, or distributing to the public copies and/or derivative

works based on the Kryptek Copyrights, whether now in existence or hereinafter

created; (b) causing, contributing to, inducing, facilitating, enabling, or

participating in the infringement of the Kryptek Copyrights;

u. Issue and order pursuant to 17 U.S.C. § 503 directing the United States Marshal’s

Service to (a) impound all copies of goods that infringe the Kryptek Copyrights in

possession of Defendants, their agents or contractors during the pendency of this

lawsuit; and (b) upon final disposition of this case, to destroy or otherwise dispose

of those copies.

v. A judgment declaring that Defendants’ use of the Kryptek Trade Dress constitutes

trademark infringement under 15 U.S.C. § 1125, is prohibited under 15 U.S.C. §

1125 and Texas Business and Commerce Code § 16.103, constitutes unfair

competition under state and federal law, and also that Defendants’ acts constitute

willful infringement under 15 U.S.C. § 1117;

w.

A judgment ordering that Defendant be ordered to pay any and all damages

available under 15 U.S.C. § 1117, including court costs, expenses, enhanced

damages, statutory damages to the extent permissible, and attorney’s fees;

x. A grant of a permanent injunction enjoining the Defendant from further acts of

trade dress infringement and unfair competition as well as use of the Kryptek

Trade Dress;

y. A judgement for Plaintiff on all other counts asserted herein;

z. Any other accounting for damages;

aa. Any other appropriate interest and costs; and



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bb. For such other and further relief as the Court deems just and proper.

DATED this 9th day of September, 2015. Respectfully submitted,

/s/ Stewart N. Mesher Stewart N. MesherTX Bar No. [email protected] F. GhavimiTX Bar No. 24072114 [email protected] CONLEY ROSE, P.C.

13413 Galleria Circle, Suite 100Austin, TX 78738

Kristin Jordan HarkinsTX Bar No. [email protected] CONLEY ROSE, P.C.5601 Granite Parkway, Suite 500Plano, TX 75024

Attorneys For Kr yptek Outdoor Group, LLC


mailto:[email protected]:[email protected]:dgha

kryptek v. salt armour - complaint

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