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Case 1:15-cv-01938 Document 1 Filed 09/08/15 USDC Colorado Page 1 of 17

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLORADO
Civil Action No. 15-CV-01938
KERNELOPE HOLDINGS, LLC, a Colorado Limited-Liability Company; and
KERNELOPE ENTERPRISES, LLC, a Colorado Limited-Liability Company;
Plaintiffs,
v.
DMD PRODUCTS LLC, a Texas Limited-Liability Company;
Defendant.

COMPLAINT AND JURY DEMAND

Plaintiffs, for their Complaint against the Defendant, state:

PARTIES
1.

Plaintiff Kernelope Holdings, LLC (hereinafter, Kernelope Holdings) is a

Limited-Liability Company whose principal place of business is in the State of Colorado, and
doing business in Colorado and throughout the United States. Kernelope Holdings owns many
and various intellectual-property assets associated with the production, distribution, and sales of
specialized mobile-computing device holding grips, which are the subject of multiple issued
United States utility patents, under the brand name LAZY-HANDS. Kernelope Holdings
intellectual-property holdings associated with the LAZY-HANDS include various issued patents
(foreign and domestic), pending patent applications (foreign and domestic), U.S. federal
trademark registrations, pending U.S. federal trademark-registration applications, U.S. federally
registered copyrights, and all Common-Law trademarks.
2.

Plaintiff Kernelope Enterprises, LLC (hereinafter, Kernelope Enterprises) is a

Limited-Liability Company whose principal place of business is in the State of Colorado, and
doing business in Colorado and throughout the United States. Kernelope Enterprises is in the
business of producing, distributing, and selling specialized mobile-computing device holding
grips, which are the subject of multiple issued United States utility patents, under the brand name
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LAZY-HANDS. Kernelope Enterprises is currently the exclusive licensee of all intellectual


property associated with the LAZY-HANDS products that is owned by Plaintiff Kernelope
Holdings, including various issued patents (foreign and domestic), pending patent applications
(foreign and domestic), U.S. federal trademark registrations, pending U.S. federal trademarkregistration applications, U.S. federally registered copyrights, and all Common-Law trademarks.
3.

Defendant DMD Products LLC (hereinafter DMD Products) is a Texas-based

manufacturing and marketing firm that does business in Colorado and throughout the United
States. DMD Products makes and sells mobile-computing device holding grips variously under
the brand names LoveHandle and SlingGrip, and previously sold the same products under
the brand ThingSling. DMD Products sells its products through both online sales through its
own various websites that DMD Products controls (including, but not limited to websites at the
domains dmdpromos.com, lovehandle.com, and slinggrip.com) and through myriad additional
web-based marketing channels it controls such as at Amazon.com, Alibaba.com, and
Facebook.com, to name a few. DMD Products also markets its products through a variety of
other partners/distributors websites, and as well as through various brick-and-mortar retailers,
providing the marketing/advertising materials to such partners/distributors/retailers. DMD
Products by itself, and through DMD Products various partners/distributors/retailers, is a direct
competitor of Kernelope Enterprises.

JURISDICTION
4.

This matter concerns actions taken by Defendant contrary to various federal and

Colorado State laws relating to false patent marking, unfair/deceptive trade practices, trademark
infringement, and copyright infringement that has injured Plaintiffs.
5.

This Court has original jurisdiction pursuant to 28 U.S.C. 1331 and 28 U.S.C.

1338(a) over several causes of action herein that arise under the federal questions of law,
including false patent marking under 35 U.S.C. 292; copyright infringement under 17 U.S.C.
501 et seq.; and trademark infringement, unfair competition, and false description under 15
U.S.C. 1114 and 15 U.S.C. 1125(a), pursuant to 15 U.S.C. 1121.
6.

This Court has original jurisdiction pursuant to 28 U.S.C. Section 1332(a)(1) and

28 U.S.C. 1338(b) relating to various other related Colorado state-law claims under the
Colorado Consumer Protection Act (CCPA) C.R.S. 6-1-105(b) and (g), and Common-Law
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claims because all of such claims are related to trademark infringement, deceptive trade
practices, and unfair competition; each of which have a nexus with the above-stated substantial
federal patent-related, copyright-related, and trademark-related claims contained herein; and
because this action is between citizens of different states and the amount in controversy exceeds
$75,000.
7.

Defendant has done business, and continues to do business, related to this action

in this jurisdiction, including the selling of products falsely marked as patented, and products
infringing on Plaintiffs trademark, in Colorado, and knowing the Plaintiffs were located in
Colorado. Accordingly, this Court has personal jurisdiction over the parties to this action, as
Defendant has transacted business in Colorado.

VENUE
8.

All of the claims herein concern some form of intellectual-property infringement,

false-patent marking, and/or unfair/deceptive trade practices on the part of Defendant, and
Defendants conduct knowingly reached into the State of Colorado and therefore within this
District.
9.

Venue is proper over all claims in this District under 28 U.S.C. 1391(b), in that

a substantial amount of Defendants activities giving rise to the claims herein occurred within
this District.

STATEMENT OF FACTS
10.

Plaintiff companies, Kernelope Holdings and Kernelope Enterprises, are jointly

owned. Plaintiff Kernelope Enterprises is policing its various intellectual-property assets,


including its various trademarks and copyrights associated LAZY-HANDS products, and Plaintiff
Kernelope Enterprises, has been manufacturing and selling LAZY-HANDS utility-patented
holding devices for mobile-computing devices, including mobile phones and tablet computers,
since May 2011, and is suffering direct and unfair competitive harm as a result of Defendants
wrongful activities described herein.
11.

Plaintiff Kernelope Holdings owns, and Plaintiff Kernelope Enterprises licenses

the right to use, the following United States trademark assets that are relevant to this action: U.S.
Trademark Registration No. 4072028, registered on December 13, 2011, for the word mark
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LAZY-HANDS; U.S. Trademark Registration No. 4185608, registered on August 7, 2012, for
the word mark GRIP YOUR GEAR; and U.S. Trademark Registration No. 4794580, registered on
August 18, 2015, for the design mark for LAZY-HANDS. Plaintiff Kernelope Enterprises
engages in interstate commerce, marketing its products under each of the aforementioned
trademarks, which have acquired secondary meaning and goodwill in the marketplace.
12.

Plaintiff Kernelope Holdings owns, and Plaintiff Kernelope Enterprises licenses

the right to use, United States Copyright Registration No. VA 1-198-122, which has an effective
date of May 2, 2014, and is directed to the artistic/graphical depiction of the aforementioned
design mark for the word mark LAZY-HANDS. This work was first published on October 11,
2011.
13.

On May 26, 2011, U.S. Provisional Patent Application No. 61/490,516 was filed

for Elastic Finger Strap and Surface Mount for Electronic Device, listing Johnny Murphy and
Connie Rutledge as the Inventors, and was subsequently assigned to Johnny Rhymes With
Connie LLC on May 6, 2014. U.S. Provisional Patent Application No. 61/490,516
automatically expired at midnight on May 26, 2012.
14.

On May 25, 2012, U.S. Utility Patent Application No. 13/481,581 (which claimed

the priority benefit of U.S. Provisional Patent Application No. 61/490,516) was filed for Elastic
Finger Strap and Surface Mount for Electronic Device, listing John A. Murphy and Connie R.
Rutledge as the Inventors, and was subsequently assigned to Johnny Rhymes With Connie
LLC on May 6, 2014. On January 24, 2013, the United States Patent and Trademark Office
issued an Office Action rejecting all of the patent claims in U.S. Patent Application No.
13/481,581, and on August 30, 2013, this patent application was deemed officially abandoned
for failure to respond to said patent-claim rejections.
15.

On April 24, 2013, U.S. Design Patent Application No. 29/453,073 (which

claimed the priority benefit of U.S. Provisional Patent Application No. 61/490,516 and U.S.
Utility Patent Application No. 13/481,581) was filed for Elastic Finger Strap and Its Base,
listing John A. Murphy as the Inventor, and was subsequently assigned to Johnny Rhymes With
Connie LLC on May 6, 2014. On February 15, 2015, the United States Patent and Trademark
Office issued an Office Action rejecting the design-patent claim. After the applicant submitted a
Response to the Office Action, the design patent, covering only the non-functional, ornamental
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shape of the device in question, was finally issued on August 4, 2015 as Design Patent No.
D735,695, which represents the first and only issued patent associated with the products
marketed by Defendant.
16.

On April 11, 2014, U.S. Utility Patent Application No. 14/251,146 (which claims

the priority benefit of U.S. Provisional Patent Application No. 61/490,516; U.S. Utility Patent
Application No. 13/481,581; and U.S. Design Patent Application No. 29/453,073) was filed for
Elastic Finger Strap and Surface Mount for Electronic Device, listing John A. Murphy and
Connie R. Rutledge as the Inventors, and was subsequently assigned to Johnny Rhymes With
Connie LLC on May 6, 2014. On September 25, 2014, the United States Patent and Trademark
Office issued an Office Action rejecting all of the patent claims in U.S. Utility Patent
Application No. 14/251,146, and after the Applicants responded, a Final Office Action rejecting
all claims was made on March 26, 2015. U.S. Utility Patent Application No. 14/251,146 remains
pending.
17.

On information and belief, Defendant apparently exclusively licensed the rights in

the aforementioned patent applications owned by Johnny Rhymes With Connie LLC sometime
in either 2012 or 2013, and commenced marketing and selling a mobile-phone-holding device
under the name ThingSling. At this time, it is unknown whether the licensor party is directly
associated with Defendant DMD Products.
18.

On information and belief, on or about early October 3, 2013, if not earlier,

Defendant rebranded the ThingSling device and started marketing the device under the name
SlingGrip. On information and belief, Defendant included in many of its
marketing/advertising materials for the SlingGrip product, including in Defendants various
websites and Internet-marketing channel websites (including Defendants various
partners/distributors/retailers, which Defendant induced to use Defendants
marketing/advertising materials), the statement that the SlingGrip was patented to imply
exclusive and special functionality and properties of its product, while knowing that the product
was, in fact, not patented, with the intent to deceive the public. An example marketing statement
that was and remains prominent in many sales/marketing websites controlled by Defendant or
Defendants agents is, The SlingGrip is a unique, patented system that easily adds a
comfortable, secure handle to any electronic device.

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19.

As part of the marketing of the SlingGrip product, Defendant adopted the

prominent slogan, GRIP YOUR PHONE, despite the fact that Plaintiffs U.S. Trademark
registration No. 4185608 for the word mark GRIP YOUR GEAR, which is used for a directly
competing product.
20.

In early January 2014, Defendant presented its SlingGrip product at the 2014

International Consumer Electronics Show in Las Vegas, where Defendant was directly exposed
to Plaintiff Kernelope Enterprises booth and presentations of its directly competing LAZYHANDS products, including the LAZY-HANDS marks, logos, and artwork.
21.

On or about May 2014, on information and belief, Defendant started to launch a

parallel brand to the SlingGrip products under the brand LoveHandle. By at least October 2014,
Defendants LOVE HANDLE products branding included a predominantly orange and blue color
scheme of the same hues as used in the LAZY-HANDS marks, logos, and artwork, and changed
its design mark to depict a hand with its fingers inserted into an orange-colored holding device
for a mobile electronic device, with the hand oriented at the same angle as in the LAZY-HANDS
design mark.
22.

On information and belief, since the pubic launch of Defendants LOVE HANDLE

products, up to August 4, 2015, Defendant, as Defendant has also done for its SlingGrip product
line, continuously represented its mobile-electronic-device-holder products as being patented
when Defendant knew or should have known otherwise. A few examples of some of the
marketing language used by Defendants included, The patented slim profile pocket-friendly
design wont get in the way, but enables the user to securely hold their devices without risk of
dropping, Check-out the newly patented LoveHandle (SlingGrip), and Patented slim pocketfriendly design makes the [LoveHandle] great for selfies, videos and one-handed texting/emails.
Defendants misrepresentation of the patented status of its products was pervasive in myriad
online marketing channels over an extended period of time.
23.

On information and belief, at some point in 2014, Defendant changed its

SlingGrip product lines design marks to incorporate the same new logo background artwork as
it had adopted for its functionally identical LOVE HANDLE product line.
24.

On September 14, 2014, Defendant filed U.S. Trademark-Registration

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Application No. 86397138 for the previously described LoveHandle design mark, which remains
pending. The as-filed application claimed the colors, which included the predominant orange
and blue colors. However, on June 17, 2015, Defendant entered a post-publication amendment
to broaden the application by disclaiming any color.
25.

On or about October 2014, Defendant started to falsely indicate that Defendant

owned a U.S. registered trademark for the word mark and/or design mark LoveHandle on
Defendants LoveHandle product line and/or on Defendants various marketing/advertising
materials and in the websites of various marketing channels for Defendants products. To date,
many of these false markings persist.
26.

On July 27, 2015, Defendant filed, for the first time, U.S. Trademark-Registration

Application No. 86397138 for the word mark LOVE HANDLE, and this application is currently
pending.

FIRST CAUSE OF ACTION


FALSE PATENT MARKING UNDER 35 U.S.C. 292
27.

Plaintiffs repeat, and hereby incorporate by reference, as though specifically

pleaded herein, the allegations of Paragraphs 1 through 26.


28.

Defendant repeatedly and pervasively represented to the consuming public that its

various mobile-electronic-device-holder products, marketed and sold under the brands SlingGrip
and LOVE HANDLE, despite the repeated patent-claim rejections of all of the associated utility
patent applications, and the rejection of the lone associated design patent application claim (until
it was finally issued on August 4, 2015). Defendant was represented by intellectual-property
counsel and was aware of the pending (and rejected) status of the various associated patent
applications, yet still acted in a way designed to deceive the relevant consuming public that
Defendants products were somehow functionally unique, protected by patent(s), and exclusive.
29.

Accordingly, Defendants actions caused competitive injury to Plaintiffs.

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SECOND CAUSE OF ACTION


TRADEMARK INFRINGEMENT UNDER 15 U.S.C. 1114(1)(a)
30.

Plaintiffs repeat, and hereby incorporate by reference, as though specifically

pleaded herein, the allegations of Paragraphs 1 through 29.


31.

Plaintiff Kernelope Enterprises has used mark GRIP YOUR GEAR since at

least as early as November 15, 2011, and was issued U.S. Trademark Registration No. 4185608
for that word mark in August 2012. The mark GRIP YOUR GEAR appears in almost all of
the marketing/advertising materials for Plaintiff Kernelope Enterprises products.
32.

Defendant has had actual and constructive notice of Plaintiffs ownership and

rights in U.S. Trademark Registration No. 4185608 prior to Defendants infringement.


33.

Defendant knowingly adopted and continues to prominently use in commerce for

directly competing products the confusingly similar mark GRIP YOUR PHONE, with the full
knowledge of Plaintiffs superior rights, and with the full knowledge that Defendants mark
GRIP YOUR PHONE has caused, or is likely to cause, confusion, mistake, and deception of
the relevant consuming public in violation of 15 U.S.C 1114, and Defendants liability is
established under 15 U.S.C 1125(a).
34.

Defendants actions constitute knowing, deliberate, and willful infringement of

Plaintiffs federally registered mark. The knowing and intentional nature of the acts set forth
herein renders this an exceptional case under 15 U.S.C 1117(a).
35.

As a result of Defendants infringement, Plaintiffs have suffered damages, as well

as the loss of goodwill established with the LAZY-HANDS brand products. The continuing loss
of goodwill and reputation established by Plaintiffs constitutes irreparable harm and an injury for
which Plaintiffs have no adequate remedy at law. Plaintiffs will continue to suffer irreparable
harm unless this Court enjoins Defendants conduct by way of relief pursuant to 15 U.S.C 1116
and 15 U.S.C 1118.

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THIRD CAUSE OF ACTION


TRADEMARK INFRINGEMENT UNDER 15 U.S.C. 1114(1)(a)
36.

Plaintiffs repeat, and hereby incorporate by reference, as though specifically

pleaded herein, the allegations of Paragraphs 1 through 35.


37.

Plaintiff Kernelope Enterprises has used its design mark for LAZY-HANDS since

at least as early as May 12, 2011, and was issued U.S. Trademark Registration No. 4794580 for
that word mark on August 18, 2015. The design mark appears in all of the marketing/advertising
materials for Plaintiff Kernelope Enterprises products.
38.

Defendant has had actual notice of Plaintiffs ownership and rights in Plaintiffs

design mark since at least early January 2014 (when it was being used under Common Law),
prior to Defendants infringement.
39.

Defendant knowingly adopted and continues to use in commerce for directly

competing products confusingly similar design marks (for both its LoveHandle and SlingGrip
products) that incorporates confusingly similar color schemes and artwork (this is especially true
in the case of the LoveHandle products, because of the use of the same two main consonants,
L and H in the mark), with the full knowledge of Plaintiffs superior rights, and with the full
knowledge that Defendants design marks has caused, or is likely to cause, confusion, mistake,
and deception of the relevant consuming public in violation of 15 U.S.C 1114, and Defendants
liability is established under 15 U.S.C 1125(a).
40.

Defendants actions constitute knowing, deliberate, and willful infringement of

Plaintiffs federally registered mark. The knowing and intentional nature of the acts set forth
herein renders this an exceptional case under 15 U.S.C 1117(a).
41.

As a result of Defendants infringement, Plaintiffs have suffered damages, as well

as the loss of goodwill established with the LAZY-HANDS brand products. The continuing loss
of goodwill and reputation established by Plaintiffs constitutes irreparable harm and an injury for
which Plaintiffs have no adequate remedy at law. Plaintiffs will continue to suffer irreparable
harm unless this Court enjoins Defendants conduct by way of relief pursuant to 15 U.S.C 1116
and 15 U.S.C 1118.

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FOURTH CAUSE OF ACTION


COPYRIGHT INFRINGEMENT UNDER 17 U.S.C. 501
42.

Plaintiffs repeat, and hereby incorporate by reference, as though specifically

pleaded herein, the allegations of Paragraphs 1 through 41.


43.

Plaintiff Kernelope Holdings owns, and Plaintiff Kernelope Enterprises licenses

the right to use, United States Copyright Registration No. VA 1-198-122, which has an effective
date of May 2, 2014, and is directed to the artistic/graphical depiction of the aforementioned
design mark for the word mark LAZY-HANDS (hereinafter, Work). This Work was first
published on October 11, 2011. The Work is used in all of the marketing materials for Plaintiff
Kernelope Enterprises products.
44.

Defendant became aware of Plaintiffs copyrighted Work at least as early as early

January 2014, when Defendant attended the 2014 International Consumer Electronics Show,
prior to Defendants infringement.
45.

On information and belief, Defendant commenced its copyright-infringing actions

to create an impermissible derivative work that is substantially based on Plaintiffs federally


registered, copyrighted logo design. Defendant knowingly adopted and continues to prominently
publish its infringing derivative logo design for both its LoveHandle and SlingGrip products.
The infringing derivative logo design features very similar color schemes and artwork, wherein
the graphical depiction of a hand wearing a mobile-electronic-device holder is oriented at
substantially the same angle as with Plaintiffs copyrighted logo, and the hands fingers are
depicted as being inserted into an orange-colored holder strap, as in the case of Plaintiffs
copyrighted logo.
46.

Defendants actions constitute knowing, deliberate, and willful infringement of

Plaintiffs federally registered copyright. The knowing and intentional nature of the acts set
forth herein renders this an exceptional case under 17 U.S.C 504(c)(2).
47.

As a result of Defendants infringement, Plaintiffs have suffered damages, which

are ongoing and constitutes irreparable harm and an injury for which Plaintiffs have no adequate
remedy at law. Plaintiffs will continue to suffer irreparable harm unless this Court enjoins
Defendants conduct by way of relief pursuant to 17 U.S.C 502.
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48.

Plaintiffs assert that Defendant is liable to Plaintiffs legal costs and attorneys fees

pursuant to 17 U.S.C 505.

FIFTH CAUSE OF ACTION


FEDERAL FALSE DESIGNATION OF ORIGIN, FALSE DESCRIPTIONS,
AND UNFAIR COMPETITION UNDER 15 U.S.C. 1125(a)
49.

Plaintiffs repeat, and hereby incorporate by reference, as though specifically

pleaded herein, the allegations of Paragraphs 1 through 48.


50.

As described in the above in the Second, Third, and Fourth Causes of Action,

Defendant has embarked on an overall pattern of behavior that infringes on Plaintiffs


trademarks and copyrights, to the point that a false designation of origin has been or is likely to
be created in the minds of the relevant consuming public.
51.

As described, supra, Defendant has deliberately misrepresented the nature,

characteristics, and qualities of its mobile-electronic-device-holding products (that is, falsely


described/advertised it products) by knowingly and falsely stating that said products were
patented via a very large number of disparate marketing channels and websites over an
extended period of time. Not only did Defendant falsely market its products as patented, it
implied that that the patented status was associated with a specialized and exclusive
functionality. This is an important distinction because even though Defendants products finally
and only very recently (August 4, 2015) were the subject of an issued patent (No. D735,695)
from the United States Patent and Trademark Office, that issued patent is merely a design patent
that only covers a non-functional ornamental aspect of the product line; that is, a somewhat
elongated, yet non-functionally related, bow-tie-shape of the base of Defendants product.
Therefore, Defendants current marketing language remains deliberately and grossly misleading
to the relevant consuming public.
52.

Defendant also falsely indicated in its various marketing/advertising materials that

Defendant owned a U.S. registered trademark (by using the circle-R designator) for the word
mark and/or design mark LoveHandle on Defendants LoveHandle product line and/or on
Defendants various marketing materials and websites. To date, many of these false markings
persist.

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53.

On information and belief, Defendants past and continued infringing acts as

described above combined with Defendants deliberate and materially false


descriptions/advertisements of its products constitutes deceptive trade practices and unfair
competition, which has caused injury to Plaintiffs, and Defendants liability is established under
15 U.S.C 1125(a).
54.

Defendants wrongful activities were knowing, deliberate, and willful, which

renders this an exceptional case under 15 U.S.C 1117(a).


55.

As a result of Defendants wrongful activities relating to false designation of

origin, false descriptions, and unfair trade practices in direct competition with Plaintiffs,
Plaintiffs have suffered damages, as well as the loss of goodwill established with the LAZYHANDS brand products. The continuing loss of goodwill and reputation established by Plaintiffs
constitutes irreparable harm and an injury for which Plaintiffs have no adequate remedy at law.
Plaintiffs will continue to suffer irreparable harm unless this Court enjoins Defendants conduct
by way of relief pursuant to 15 U.S.C 1116 and 15 U.S.C 1118.

SIXTH CAUSE OF ACTION


DECEPTIVE TRADE PRACTICES UNDER THE COLORADO
CONSUMER PROTECTION ACT; C.R.S. 6-1-105
56.

Plaintiffs repeat, and hereby incorporate by reference, as though specifically

pleaded herein, the allegations of Paragraphs 1 through 55.


57.

As described in the above in the Second, Third and Fourth Causes of Action,

Defendant has embarked on an overall pattern of behavior that infringes on Plaintiffs


trademarks and copyrights, to the point that a false designation of origin has been or is likely to
be created in the minds of the relevant consuming public in violation of C.R.S. 6-1-105(b).
58.

As described, supra, Defendant has deliberately misrepresented the nature,

characteristics, and qualities of its mobile-electronic-device-holding products (that is, falsely


described/advertised it products) by knowingly and falsely stating that said products were
patented via a very large number of disparate marketing channels and websites over an
extended period of time. Not only did Defendant falsely market its products as patented, it
implied that that the patented status was associated with a specialized and exclusive
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functionality. This is an important distinction because even though Defendants products finally
and only very recently (August 4, 2015) were the subject of an issued patent (No. D735,695)
from the United States Patent and Trademark Office, that issued patent is merely a design patent
that only covers a non-functional ornamental aspect of the product line; that is, a somewhat
elongated, yet non-functionally related, bow-tie-shape of the base of Defendants product.
Therefore, Defendants current marketing language remains deliberately and grossly misleading
to the relevant consuming public.
59.

Defendants deliberate false patent marking in effect constitutes an implied

approval or certification of the goods marketed and sold by Defendant to the ordinary and
unsophisticated consumer who would be unduly influenced by the seemingly special and
exclusive nature of a patented product, as opposed to an unpatented product. Defendants
pervasive false advertising that its products were patented indicates that Defendant appreciates
the marketing value of making such a claim.
60.

Defendants willful and substantial false designation of the patented status of its

products constitutes an attempt to convince the relevant consuming public that the goods being
marketed and sold by Defendant meet a particular standard of quality and/or have exclusive and
special functional features that have been approved of/certified by the United States Patent and
Trademark Office by way of being patented. This willful deceptive trade practice is violative
of C.R.S. 6-1-105(b) and 6-1-105(g).
61.

Defendant also falsely indicated in its various marketing/advertising materials that

Defendant owned a U.S. registered trademark (by using the circle-R designator) for the word
mark and/or design mark LoveHandle on Defendants LoveHandle product line and/or on
Defendants various marketing materials and websites. To date, many of these false markings
persist.
62.

On information and belief, Defendants past and continued infringing acts as

described above combined with Defendants deliberate and materially false


descriptions/advertisements of its products constitutes deceptive trade practices and unfair
competition, which has caused injury to Plaintiffs, giving Plaintiffs standing to bring this cause
of action under C.R.S. 6-1-113(c). Accordingly, Defendants liability is established under C.R.S.
6-1-105(b) and 6-1-105(g) and Plaintiffs are entitled to damages pursuant to C.R.S. 6-1-113(2).
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63.

Defendants wrongful activities were knowing, deliberate, and willful,

constituting bad-faith conduct which renders this an exceptional case whereby Plaintiffs
should be awarded treble damages and reasonable legal costs and attorney fees pursuant to
C.R.S. 6-1-113(2)(a)(III) and C.R.S. 6-1-113(2)(b).
64.

As a result of Defendants wrongful activities relating to false designation of

origin, false descriptions/misrepresentations, and deceptive trade practices in direct competition


with Plaintiffs, Plaintiffs have suffered damages, as well as the loss of goodwill established with
the LAZY-HANDS brand products. The continuing loss of goodwill and reputation established
by Plaintiffs constitutes irreparable harm and an injury for which Plaintiffs have no adequate
remedy at law. Plaintiffs will continue to suffer irreparable harm unless this Court enjoins
Defendants conduct by way of relief pursuant to C.R.S. 6-1-110.

SEVENTH CAUSE OF ACTION


COMMON-LAW TRADEMARK INFRINGEMENT
AND UNFAIR TRADE PRACTICES
65.

Plaintiffs repeat, and hereby incorporate by reference, as though specifically

pleaded herein, the allegations of Paragraphs 1 through 64.


66.

Defendant has deliberately and willfully attempted to trade on Plaintiffs marks

and goodwill by incorporating confusingly similar marks and logo/design-mark features into
Defendants marketing and advertising, which has caused and will continue to cause confusion
amongst consumers. On information and belief, Defendants conduct constitutes unfair trade
practices under the Common Law of the State of Colorado and of other States.
67.

Defendants unauthorized infringing conduct adversely impacts that ability of

Plaintiffs to control consumer perception of its products offered under Plaintiffs brand,
compromising Plaintiffs valuable reputation and goodwill.
68.

Defendants conduct is likely to cause confusion, mistake, or deception as to the

affiliation, connection, or association of Defendant with Plaintiffs products, and as to the origin,
sponsorship, or approval of Defendants products, in violation of Colorado Common Law.
69.

Defendants deliberate false patent marking in effect constitutes an implied

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approval or certification of the goods marketed and sold by Defendant to the ordinary and
unsophisticated consumer who would be unduly influenced by the seemingly special and
exclusive nature of a patented product (and implied utility patent at that, based on Defendants
marketing/advertising texts), as opposed to an unpatented product. Defendants pervasive false
advertising that its products were patented indicates that Defendant appreciates the marketing
value of making such a claim. Moreover, Defendants willful and substantial false designation
of the patented status of its products constitutes an attempt to convince the relevant consuming
public that the goods being marketed and sold by Defendant meet a particular standard of quality
and/or have exclusive and special functional features that have been approved of/certified by the
United States Patent and Trademark Office by way of being patented.
70.

Defendant also falsely indicated in its various marketing/advertising materials that

Defendant owned a U.S. registered trademark (by using the circle-R designator) for the word
mark and/or design mark LoveHandle on Defendants LoveHandle product line and/or on
Defendants various marketing materials and websites. To date, many of these false markings
persist.
71.

As a result of Defendants wrongful activities relating to trademark infringement,

false designation of origin, false descriptions/misrepresentations, false markings, unfair


competition, and deceptive trade practices in direct competition with Plaintiffs, Plaintiffs have
suffered damages, as well as the loss of goodwill established with the LAZY-HANDS brand
products. The continuing loss of goodwill and reputation established by Plaintiffs constitutes
irreparable harm and an injury for which Plaintiffs have no adequate remedy at law. Plaintiffs
will continue to suffer irreparable harm unless this Court enjoins Defendants conduct.
72.

As a result of Defendants wrongful conduct, including its willful infringement

and unfair trade practices, Plaintiffs are entitle to an award of damages, reasonable attorney fees,
and related legal costs.

PRAYER FOR RELIEF


Plaintiffs demand the following relief:
1.

Injunctive relief as provided by the various applicable laws; including 15 U.S.C

1116, 17 U.S.C. 502, and C.R.S. 6-1-110, as applicable, prohibiting use by Defendant of the
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Case 1:15-cv-01938 Document 1 Filed 09/08/15 USDC Colorado Page 16 of 17

infringing marks, specifically the mark GRIP YOUR PHONE and the current infringing
design marks on Defendants SlingGrip and LoveHandle branded products. Said prohibition on
the use of the word mark GRIP YOUR PHONE must include prohibition on the use of it or
confusingly similar terms in meta-tag data associated with Defendants many and various
websites and web-based marketing channels.
2.

Injunctive relief as provided by the various applicable laws; including 15 U.S.C.

1118, 17 U.S.C. 503, and C.R.S. 6-1-110, ordering Defendant and any agents of Defendant to
deliver up to Plaintiffs for destruction, or certify destruction of, all infringing products,
packaging, brochures, business cards, leaflets, pamphlets, and promotional materials containing
reference to GRIP YOUR PHONE and/or the infringing design marks.
3.

Injunctive relief as provided by the various applicable laws; including 15 U.S.C.

1118, 17 U.S.C. 503, and C.R.S. 6-1-110, as applicable, ordering Defendant and any agents of
Defendant to deliver up to Plaintiffs for destruction, or certify destruction of, all advertising
materials, including web-based advertising and web-based search criteria, including meta-tags,
that contain Plaintiffs protectable intellectual property, or any confusingly similar mark, term, or
symbol, or that use language, terms, or symbols which confuse source, origin, or association of
Defendants products with those of Plaintiffs.
4.

Injunctive relief as provided by the various applicable laws ordering Defendant

and any agents of Defendant to deliver up to Plaintiffs for destruction, or certify destruction of,
all falsely marked (falsely marked as to patented status and/or falsely marked as to registeredtrademark status) all products, packaging, brochures, business cards, leaflets, pamphlets, and
promotional materials. Alternatively, said injunctive relief should at least order Defendant to
immediately correct, and certify said corrections of, the false-marking issues on all falsely
marked (falsely marked as to patented status and/or falsely marked as to registered-trademark
status) all products, packaging, brochures, business cards, leaflets, pamphlets, and promotional
materials, and in the case of the patent marking, because of the past misrepresentations regarding
patented functional features of Defendants products, require Defendant to indicate that its newly
patented status is based on a U.S. design patent only.
5.

An award of damages as provided by the various applicable laws; including 35

U.S.C. 292(b), 17 U.S.C. 504, 15 U.S.C. 1117, and C.R.S. 6-1-113, including enhanced
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Case 1:15-cv-01938 Document 1 Filed 09/08/15 USDC Colorado Page 17 of 17

damages for willfulness and/or bad-faith conduct on the part of Defendant.


6.

An award of reasonable costs and attorneys fees to bring this action, as provided

by the various applicable laws; including 15 U.S.C. 1117, 17 U.S.C. 505, and C.R.S. 6-1113.
WHEREFORE, Plaintiffs request entry of judgment in their favor in the amount of
damages found, presumed damages, statutory penalties, exemplary damages, prejudgment and
post-judgment interest, costs, and attorney fees, and further request that all requested injunctive
relief be granted.
PLAINTIFFS DEMAND A TRIAL BY JURY ON ALL CLAIMS SO TRIABLE.
Respectfully submitted this 8th day of September, 2015.
Original retained in the offices of undersigned.

/s Samuel Ventola
Samuel Ventola
1775 Sherman St. #1650
Denver, Colorado 80203
Telephone Number: (303) 864-9797
Fax Number: (303) 496-6161-0008
Email: sam@samventola.com.

/s Terrence M. Wyles
Terrence M. Wyles (co-counsel)
Startup IP Law, LLC
2404 S. Oakland Cir.
Aurora, Colorado 80014
Telephone Number: (303) 880-0884
Fax Number: (303) 328-2219
Email: Terry.Wyles@startupiplaw.com

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