rage hard v daytec - complaint

7/30/2019 Rage Hard v Daytec - Complaint

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0 violation of 15 U.S.C. 1125(a); and common law and statutory unfacompetition. This Court has jurisdiction over Big Bear's federal claims under 2U.S.C. 1338(a) and (b) and has supplemental jurisdiction over Big Bear's statlaw claims under 28 U.S.C. 1267(a).2. Venue is proper under 28 U.S.C. 1391(b) and (c) and 1400(b).

PARTIES3. Plaintiff Rage Hard Choppers, Inc. doing business as Big Bea

Choppers, Inc. ("Big Bear"), is a California corporation, with a principal place obusiness at 1331 Riverview Drive, San Bernardino, California, 92408.

4. Upon information and belief, Defendant Daytec, is a Californbusiness entity, form unknown, with a principal place of business at 1750Lemon Street, Hesperia, California, 92345.

5. Upon information and belief, Defendant Philip R. Day ts aindividual who resides in or near Hesperia, California.

6. Upon information and belief, each of the Defendants was the agenalter ego, co-conspirator and/or joint venturer of each of the other Defendants anthat the acts of each of the Defendants were in the scope of such relationship.

7. Upon information and belief, in doing the acts or failing to act aalleged in this Complaint, each of the Defendants acted with the knowledgpermission, and the consent of each of the other Defendants.

8. This Court has personal jurisdiction over Defendants because thehave conducted systematic and continuous business within California and withithis District.

FACTUAL BACKGROUND9. Big Bear is engaged in the design and sale of custom motorcycle

26 and motorcycle kits. Big Bear's products are sold throughout the United States.27 BIG BEAR'S DESIGN PATENT RIGHTS28 10. On February 17, 2005, Kevin R. Alsop filed a patent application

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0 1 Serial No. 29/223,713, with the United States Patent and Trademark Office (PTO2 to obtain a design patent for an original design for a motorcycle oil tank. Thi3 application titled "Motorcycle Oil Tank" matured into Patent No. D512,674 which issued on December 13, 2005 ("the '677 Patent"). Big Bear is the assigne5 of the '677 Patent. A copy of the '677 Patent is attached hereto as Exhibit A.6 11. On February 17, 2005, Kevin R. Alsop filed a patent application7 Serial No. 29/223,724, with the PTO to obtain a design patent for an original an8 unique design for a motorcycle gas tank. This application titled "Motorcycle Ga9 Tank " matured into Patent No. D512,951 which issued on December 20, 20010 ("the '951 Patent"). Big Bear is the assignee of the '951 Patent. A copy of th11 '951 Patent is attached hereto as Exhibit B.12 12. On February 17, 2005, Kevin R. Alsop filed a patent application13 Serial No. 29/223,734, with the PTO to obtain a design patent for an original an14 unique design for a motorcycle gas tank. This application titled "Motorcycle Ga15 Tank" matured into Patent No. D514,498 which issued on February 7, 2006 ("th16 '498 Patent"). Big Bear is the assignee of the '498 Patent. A copy of the '4917 Patent is attached hereto as Exhibit C.18 13. On February 17, 2005, Kevin R. Alsop filed a patent application19 Serial No. 29/223,714, with the PTO to obtain a design patent for an original an20 unique design for a motorcycle frame. This application titled "Motorcycl21 Frame" matured into Patent No. D517,451 which issued on March 21,2006 (''th22 '451 Patent"). Big Bear is the assignee of the '451 Patent. A copy of the '4523 Patent is attached hereto as Exhibit D.24 14. On October 4, 2005, Kevin R. Alsop filed a patent application, Seria25 No. 29/239,845, with the PTO to obtain a design patent for an original and uniqu26 design for a motorcycle swing arm. This application titled "Motorcycle Fram27 Swing Arm " matured into Patent No. D542,191 which issued on May 8, 20028 ("the '191 Patent"). Big Bear is the assignee of the '191 Patent. A copy of th

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0 1 '191 Patent is attached hereto as Exhibit E.2 BIG BEAR'S TRADE DRESS RIGHTS3 SLED CHOPPER TRADE DRESS4 15. Big Bear's Sled Chopper custom motorcycle design includes 5 distinctive frame, gas tank, fenders, oil tank and swing arm (hereinafter "SLED6 CHOPPER Trade Dress").7 16. Big Bear's custom motorcycle design featuring the SLED CHOPPER8 Trade Dress has had an outstanding commercial success. As a result, the publi9 recognizes the distinctive design of the SLED CHOPPER frame, gas tank

10 fenders, oil tank and swing arm as designating an exclusive source, thereb11 creating goodwill which inures to Big Bear's benefit and constituting 12 proprietary trade dress.13 17. Big Bear is the exclusive licensee of the SLED CHOPPER Trad14 Dress.15 18. Notwithstanding the rights of Big Bear in the design of the SLED16 CHOPPER Trade Dress, upon information and belief, Defendants have bee17 offering for sale and selling in interstate commerce motorcycle frames whic18 incorporate the SLED CHOPPER Trade Dress.19 SLED PROSTREET TRADE DRESS20 19. Big Bear's Sled Prostreet custom motorcycle design includes 21 distinctive frame, gas tank, fenders, oil tank and swing arm (hereinafter "SLED22 PROSTREET Trade Dress").23 20. Big Bear's custom motorcycle design featuring the SLED24 PROSTREET Trade Dress has had an outstanding commercial success. As 25 result, the public recognizes the distinctive design of the SLED PROSTREE26 frame, gas tank, fenders, oil tank and swing arm as designating an exclusiv27 source, thereby creating goodwill which inures to Big Bear's benefit an28 constituting a proprietary trade dress.

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0 1 21. Big Bear is the exclusive licensee of the SLED PROSTREET Trad2 Dress.3 22. Notwithstanding the rights of Big Bear in the design of the SLED4 PROSTREET Trade Dress, upon information and belief, Defendants have bee5 offering for sale and selling in interstate commerce motorcycle frames whic6 incorporate the SLED PROSTREET Trade Dress.7 SLED 250 TRADE DRESS8 23. Big Bear's Sled 250 custom motorcycle design includes a distinctiv9 frame, gas tank, fenders, oil tank and swing arm (hereinafter "SLED 250 Trad10 Dress").11 24. Big Bear's custom motorcycle design featuring the SLED 250 Trad12 Dress has had an outstanding commercial success. As a result, the publi13 recognizes the distinctive design of the SLED 250 frame, gas tank, fenders, oi14 tank and swing arm as designating an exclusive source, thereby creating goodwil15 which inures to Big Bear's benefit and constituting a proprietary trade dress.16 25. Big Bear is the exclusive licensee of the SLED 250 Trade Dress.17 26. Notwithstanding the rights of Big Bear in the design of the SLED18 250 Trade Dress, upon information and belief, Defendants have been offering fo19 sale and selling in interstate commerce motorcycle frames which incorporate th20 SLED 250 Trade Dress.21 VENOM PROSTREET TRADE DRESS22 27. Big Bear's Venom Prostreet custom motorcycle design includes 23 distinctive frame, gas tank, fenders, oil tank and swing arm (hereinafter "VENOM24 PROSTREET Trade Dress").25 28. Big Bear's custom motorcycle design featuring the VENOM26 PROSTREET Trade Dress has had an outstanding commercial success. As 27 result, the public recognizes the distinctive design of the VENOM PROSTREET28 frame, gas tank, fenders, oil tank and swing arm as designating an exclusiv

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0 1 source, thereby creating goodwill which inures to Big Bear's benefit and2 constituting a proprietary trade dress.3 29. Big Bear is the exclusive licensee of the VENOM PROSTREET4 Trade Dress.5 30. Notwithstanding the rights of Big Bear in the design of the VENOM6 PROSTREET Trade Dress, upon information and belief, Defendants have been7 offering for sale and selling in interstate commerce motorcycle frames which8 incorporate the VENOM PROSTREET Trade Dress.9 VENOM CHOPPER TRADE DRESS

10 31. Big Bear's Venom Chopper custom motorcycle design includes 11 distinctive frame, gas tank, fenders, oil tank and swing arm (hereinafter "VENOM12 CHOPPER Trade Dress").13 32. Big Bear's custom motorcycle design featuring the VENOM14 CHOPPER Trade Dress has had an outstanding commercial success. As a result15 the public recognizes the distinctive design of the VENOM CHOPPER frame, ga16 tank, fenders, oil tank and swing arm as designating an exclusive source, thereby17 creating goodwill which inures to Big Bear's benefit and constituting 18 proprietary trade dress.19 33. Big Bear is the exclusive licensee of the VENOM CHOPPER Trad20 Dress.21 34. Notwithstanding the rights of Big Bear in the design of the VENOM22 CHOPPER Trade Dress, upon information and belief, Defendants have been23 offering for sale and selling in interstate commerce motorcycle frames which24 incorporate the VENOM CHOPPER Trade Dress.25 DEVIL'S ADVOCATE CHOPPER TRADE DRESS26 35. Big Bear's Devil's Advocate Chopper custom motorcycle design27 includes a distinctive frame, gas tank, fenders, oil tank and swing arm (hereinafte28 "DEVIL'S ADVOCATE CHOPPER Trade Dress").

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0 1 36. Big Bear's custom motorcycle design featuring the DEVIL'S2 ADVOCATE CHOPPER Trade Dress has had an outstanding commercia3 success. As a result, the public recognizes the distinctive designof the DEVIL'S4 ADVOCATE CHOPPER frame, gas tank, fenders, oil tank and swing arm a5 designating an exclusive source, thereby creating goodwill which inures to Bi6 Bear's benefit and constituting a proprietary trade dress.7 37. Big Bear is the exclusive licensee of the DEVIL'S ADVOCATE8 CHOPPER Trade Dress.9 38. Notwithstanding the rights ofBig Bear in the design of the DEVIL'S10 ADVOCATE CHOPPER Trade Dress, upon information and belief, Defendant11 have been offering for sale and selling in interstate commerce motorcycle frame12 which incorporate the DEVILS ADVOCATE CHOPPER Trade Dress.13 DEVIL'S ADVOCATE PROSTREET TRADE DRESS14 39. Big Bear's Devil's Advocate Prostreet custom motorcycle desig15 includes a distinctive frame, gas tank, fenders, oil tank and swing arm (hereinafte16 "DEVIL'S ADVOCATE PROSTREET Trade Dress").17 40. Big Bear's custom motorcycle design featuring the DEVIL'S18 ADVOCATE PROSTREET Trade Dress has had an outstanding commercia19 success. As a result, the public recognizes the distinctive design of the DEVIL'S20 ADVOCATE PROSTREET frame, gas tank, fenders, oil tank and swing arm a21 designating an exclusive source, thereby creating goodwill which inures to Bi22 Bear's benefit and constituting a proprietary trade dress.23 41. Big Bear is the exclusive licensee of the DEVIL'S ADVOCATE24 PROSTREET Trade Dress.25 42. Notwithstanding the rights of Big Bear in the design of the DEVIL'S26 ADVOCATE PRO STREET Trade Dress, upon information and belief27 Defendants have been offering for sale and selling in interstate commerc28 motorcycle frames which incorporate the DEVIL'S ADVOCATE PROSTREET

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0 1 Trade Dress.2 BEAR BONES TRADE DRESS3 43. Big Bear's Bear Bones custom motorcycle design includes a4 distinctive frame, gas tank, fenders, oil tank and swing arm (hereinafter "BEAR5 BONES Trade Dress").6 44. Big Bear's custom motorcycle design featuring the BEAR BONES7 Trade Dress has had an outstanding commercial success. As a result, the public8 recognizes the distinctive design of the BEAR BONES frame, gas tank, fenders,9 oil tank and swing arm as designating an exclusive source, thereby creating

10 goodwill which inures to Big Bear's benefit and constituting a proprietary trade11 dress.12 45. Big Bear is the exclusive licensee of the BEAR BONES Trade13 Dress.14 46. Notwithstanding the rights of Big Bear in the design of the BEAR15 BONES Trade Dress, upon information and belief, Defendants have been offering16 for sale and selling in interstate commerce motorcycle frames which incorporate17 the BEAR BONES Trade Dress.18 SCREAMIN' DEMON TRADE DRESS19 47. Big Bear's Screamin' Demon custom motorcycle design includes a20 distinctive frame, gas tank, fenders, oil tank and swing arm (hereinafter21 "SCREAMIN' DEMON Trade Dress").22 48. Big Bear's custom motorcycle design featuring the SCREAMIN23 DEMON Trade Dress has had an outstanding commercial success. As a result24 the public recognizes the distinctive design of the SCREAMIN' DEMON frame,25 gas tank, fenders, oil tank and swing arm as designating an exclusive source,26 thereby creating goodwill which inures to Big Bear's benefit and constituting a27 proprietary trade dress.28 49. Big Bear is the exclusive licensee of the SCREAMIN' DEMON

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0 01 Trade Dress.2 Notwithstanding the rights of Big Bear in the design of the SCREAMIN3 DEMON Trade Dress, upon information and belief, Defendants have been4 offering for sale and selling in interstate commerce motorcycle frames which5 incorporate the SCREAMIN DEMON Trade Dress.6 MISS BEHA VIN TRADE DRESS7 50. Big Bear's Miss Behavin custom motorcycle design includes a8 distinctive frame, gas tank, fenders, oil tank and swing arm (hereinafter "MISS9 BEHA VIN Trade Dress").10 51. Big Bear's custom motorcycle design featuring the MISS BEHA YIN11 Trade Dress has had an outstanding commercial success. As a result, the public12 recognizes the distinctive design of the MISS BEHA YIN frame, gas tank13 fenders, oil tank and swing arm as designating an exclusive source, thereby14 creating goodwill which inures to Big Bear's benefit and constituting a15 proprietary trade dress.16 52. Big Bear is the exclusive licensee of the MISS BEHA VIN Trade17 Dress.18 53. Notwithstanding the rights of Big Bear in the design of the MISS19 BEHA YIN Trade Dress, upon information and belief, Defendants have been20 offering for sale and selling in interstate commerce motorcycle frames which21 incorporate the MISS BEHA VIN Trade Dress.22 ATHENA CHOPPER TRADE DRESS23 54. Big Bear's Athena Chopper custom motorcycle design includes a24 distinctive frame, gas tank, fenders, oil tank and swing arm (hereinafter25 "ATHENA CHOPPER Trade Dress").26 55. Big Bear's custom motorcycle design featuring the ATHENA27 CHOPPER Trade Dress has had an outstanding commercial success. As a result28 the public recognizes the distinctive design of the ATHEN A CHOPPER frame

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0 0gas tank, fenders, oil tank and swing arm as designating an exclusive source,thereby creating goodwill which inures to Big Bear's benefit and constituting aproprietary trade dress.

56. Big Bear is the exclusive licensee ofthe ATHENA CHOPPER TradeDress.6 57. Notwithstanding the rights of Big Bear in. the design of the7 ATHEN A CHOPPER Trade Dress, upon information and belief, Defendants have8 been offering for sale and selling in interstate commerce motorcycle frames9 which incorporate the ATHENA CHOPPER Trade Dress.

10 ATHENA PROSTREET TRADE DRESS11 58. Big Bear's Athena Prostreet custom motorcycle design includes a12 distinctive frame, gas tank, fenders, oil tank and swing arm (hereinafter13 "ATHENA PROSTREET Trade Dress").14 59. Big Bear's custom motorcycle design featuring the ATHENA15 PROSTREET Trade Dress has had an outstanding commercial success. As a16 result, the public recognizes the distinctive design of the ATHENA PROSTREET17 frame, gas tank, fenders, oil tank and swing arm as designating an exclusive18 source, thereby creating goodwill which inures to Big Bear's benefit and19 constituting a proprietary trade dress.20 60. Big Bear is the exclusive licensee of the ATHEN A PROSTREET21 Trade Dress.22 61. Notwithstanding the rights of Big Bear in the design of the23 ATHEN A PROSTREET Trade Dress, upon information and belief, Defendants24 have been offering for sale and selling in interstate commerce motorcycle frames25 which incorporate the ATHENA PROSTREET Trade Dress.26 FIRST CLAIM FOR RELIEF27 (Patent Infringement)28 62. Plaintiff repeats and realleges paragraphs 9 through 61 hereinabove.

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0 1 63. On information and belief, Defendants, alone or in concert with2 others, have made, offered for sale, and/or sold and continue to sell in this district,3 motorcycles or motorcycle kits which infringe: the claim of the '677 Patent, the4 claim of the '951 Patent, the claim of the '498 Patent, the claim of the '451 Paten5 and the claim ofthe '191 Patent (collectively "the Patents-In-Suit.")6 64. The aforesaid acts of Defendants are without right, license, or7 authorization from Big Bear.8 65. By its aforesaid acts, Defendants have violated 35 U.S.C. 271 by9 its infringement of the Patents-In-Suit.

10 66. On information and belief, the acts of infringement of Defendants11 will continue unless enjoined by this Court.12 67. Big Bear is being damaged by Defendants' infringement of the13 Patents-In-Suit and is being and will continue to be irreparably damaged unless14 Defendants' infringement is enjoined by this Court. Big Bear does not have an15 adequate remedy at law.16 68. Big Bear is entitled to an award of damages sufficient to compensate17 it for Defendants' infringement.18 69. On information and belief, Defendants had actual notice of the19 Patents-In-Suit and continue to knowingly and willfully infringe with disregard to20 the rights of Big Bear. Consequently, an award of multiple damages and21 attorneys' fees are appropriate.22 SECOND CLAIM FOR RELIEF23 (Trade Dress Infringement)24 70. Big Bear repeats and realleges paragraphs 9 through 69 above.25 71. Trade Dress identified in paragraphs 15 through 61 is distinctive,26 non-functional, and owned by Big Bear.27 72. Upon information and belief, the above-described acts of Defendants28 constitute trade dress infringement in violation of 15 U.S.C. 1125(a) in tha

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0 01 Defendants have used a motorcycle trade dress comprising colorable imitations or2 copies of the Trade Dress identified in paragraphs 15 through 61 in a manner that3 is likely to cause confusion among ordinary consumers as to the source,4 sponsorship, affiliation, or approval of the Defendants' goods.5 73. Big Bear is being damaged and is likely to be damaged in the future6 by Defendants' infringement by reason of the likelihood that potential purchasers7 and/or end users of Defendants' goods will be confused or mistaken as to the8 source, sponsorship or affiliation ofDefendants' motorcycles.9 74. Upon information and belief, Defendants have unfairly profited from

10 the actions alleged herein and will continue to be unjustly enriched unless and11 until such conduct is enjoined.12 75. By reason of Defendants' acts alleged herein, Big Bear has suffered13 and will continue to suffer damage to its goodwill and has and will continue to14 suffer irreparable harm unless and until Defendants' conduct is enjoined.15 76. On information and belief, Defendants' acts alleged herein were16 willful and conducted in conscious disregard ofBig Bear's rights.17 THIRD CLAIM FOR RELIEF18 (Common Law Unfair Competition)19 77. Big Bear repeats and realleges paragraphs 9 through 76 above.20 78. The above-described acts of Defendants constitute unfair21 competition under the common law ofCalifornia.22 79. Defendants' violation of Big Bear's rights was oppressive, vexatious,23 intentional, willful and in reckless disregard of Plaintiffs rights. Plaintiff is24 entitled to punitive damages against Defendants.25 FOURTH CLAIM FOR RELIEF26 (State Law Statutory Unfair Competition)27 80. Big Bear hereby repeats and realleges paragraphs 9 through 7928 hereinabove as though fully set forth herein.

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0 81. The Court has jurisdiction over this Claim pursuant to 27 U.S.C

Section 1367.82. By their acts complained of herein, Defendants have engaged m

unfair competition under Cal. Bus. and Prof. Code 17200et seq.83. Big Bear has suffered harm as a result ofDefendants' actions.REQUEST FOR RELIEF

WHEREFORE, Plaintiff Big Bear prays for relief as follows:1. That this Court adjudge and declare:

a.of this action;

b.

That it has jurisdiction of the parties and of the subject matter

That each of the Patents-in-Suit is valid and owned by Big12 Bear;13 c. That Big Bear is the owner and exclusive licensee of the Trade14 Dress identified in paragraphs 15 through 61 ("Trade Dress");15 d. That Defendants have committed acts of patent infringemen16 by making, offering for sale and selling motorcycles and/or motorcycle kits which17 incorporate designs shown in the Patents-in-Suit;18 e. That Defendants have committed acts of trade dress19 infringement by their offer for sale and sale of motorcycles which incorporate a20 colorable imitation ofPlaintiffs Trade Dress and/or patented designs.21 2. That Defendant Day, Defendant Daytec and its officers, directors22 owners, agents, representatives, employees, assigns and suppliers, and all person23 acting in concert or privity with any of them be preliminarily and permanently24 enjoined from using any design of Big Bear's Trade Dress and from using any o25 Big Bear's patented designs claimed in the Patents-in-Suit.26 3. That Defendants be required by mandatory injunction to deliver to27 Big Bear for destruction any and all motorcycles or motorcycle kits in thei28 possession, custody or control which incorporate Plaintiffs Trade Dress and/o

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0 01 any ofBig Bear's patented designs claimed in the Patents-in-Suit.2 4. That Big Bear be awarded damages covered by the acts of paten3 infringement of Defendants in an amount not less than a reasonable royalty4 pursuant to 35 U.S.C. 284 or in an amount equal to Defendants ' profits pursuan5 to 35 U.S.C. 289, whichever is greater and that these damages so ascertained be6 trebled;7 5. That Defendants pay to Big Bear all damages suffered by Big Bear8 and all profits which Defendants received as a result of Defendants' infringemen9 ofBig Bear's trade dress and that such damages be trebled in accordance with the10 provisions of 15 U.S.C. 1117.11 6. That Defendants pay Big Bear punitive damages;12 7. That Defendants pay Big Bear prejudgment interest;13 8. That Defendants disgorge all profits;14 9. That Defendants pay restitution;15 10. That Big Bear recovers its costs in this action, including attorneys16 fees; and17 11. That Big Bear have such other or further relief as the Court may18 deem just and proper.19202122232425262728

& IIALE.ILP

DATED: May 6, 2013 Respectfully submitted,CHRISTIE, PARKER & HALE, LLP

B y ~ - ~ A;arreneerAttorneys for P l a i n t i f ~RAGE HARD CHOPt'ERS, INC. DBABIG BEAR CHOPPERS-14-


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PARKER&. HALE, lLP

0 DEMAND FOR JURY TRIAL

Plaintiff, Rage Hard Choppers, Inc. dba Big Bear Choppers, pursuant toFederal Rule of Civil Procedure 38, hereby demands a trial by jury of all issues sotriable.DATED: May 6, 2013

GWB PAS 12336791-''-05/3/!3 II : 10 PM

Respectfully submitted,CHRISTIE, PARKER & HALE, LLP

By JJrrentJJ/1

rage hard v daytec - complaint

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