Case: 4:17-cv-02472 Doc.

#: 1 Filed: 09/26/17 Page: 1 of 8 PageID #: 1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MICHELIN NORTH AMERICA, INC., )

)
Plaintiff, )
)
v. )
) Civil Action No. _4:17-cv-2472______
TIRE MART, INC., )
d/b/a BRAVEN OFF-ROAD, )
)
Defendant. )
)

COMPLAINT FOR PATENT INFRINGEMENT

Plaintiff Michelin North America, Inc. (Plaintiff or Michelin), for its complaint

against Defendant Tire Mart, Inc., d/b/a Braven Off-Road (Defendant or Tire Mart), hereby

alleges as follows:

NATURE OF THE ACTION

1. This is a civil action for the infringement of United States Design Patent No.

D530,266 (the D266 patent) under the Patent Laws of the United States, 35 U.S.C. 100 et

seq., arising from Tire Marts manufacture, use, offer to sell, sale and/or importation of

infringing tire products.

THE PARTIES

2. Plaintiff Michelin North America, Inc. is a New York corporation having its

principal place of business at 1 Parkway S., Greenville, South Carolina, 29605, United States.
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3. Upon information and belief, Defendant Tire Mart, Inc. is a Missouri corporation

having its principal place of business at 1815 Locust Street, St. Louis, Missouri, 63103, United

States.

4. Upon information and belief, Tire Mart, Inc. conducts business in Missouri under

the name Braven Off-Road. On or about September 16, 2016, Tire Mart, Inc. caused to be filed

with the Missouri Secretary of State a Registration of Fictitious Name, in which the fictitious

name Braven Off-Road is identified as 100% owned by Tire Mart, Inc. The registered business

address for Braven Off-Road is identified as 1815 Locust Street, St. Louis, Missouri, 63103,

United States. The website for Braven Off-Road identifies Tire Mart, Inc. as the distributor and

contact for Braven Off-Road tires, including the tires that are the subject of this complaint. 1

JURISDICTION AND VENUE

5. This Court has subject matter jurisdiction over this complaint pursuant to 28

U.S.C. 1331 and 1338(a), because this is an action arising under the Patent Laws of the

United States, 35 U.S.C. 100 et seq.

6. This Court has personal jurisdiction over Tire Mart because (a) Tire Mart is a

Missouri corporation having its principal place of business in St. Louis, Missouri, (b) upon

information and belief, Tire Mart regularly conducts business in Missouri through the

1
See https://bravenoffroad.com/pages/about-us (last accessed Sept. 20, 2017). The tires that are
the subject of this complaint were previously marketed, offered for sale and/or sold in Missouri
under the name Pit Bull Tires. Pit Bill Tires is a fictitious name that has been registered with the
Missouri Secretary of State, and that is also 100% owned by Tire Mart, Inc. Upon information
and belief, on or about August 2017, Tire Mart, Inc. removed the tires that are the subject of this
complaint from the Pit Bull Tires website. At all times pertinent to this complaint, the tires that
are the subject of this complaint have been marketed, offered for sale, sold and/or imported by
Tire Mart, Inc.

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manufacture, sale and/or importation of products in Missouri, and (c) Tire Mart committed

tortious acts within the state of Missouri giving rise to this action.

7. Venue is proper under 28 U.S.C. 1391(b) and (c), and/or 1400(b), because Tire

Mart is subject to personal jurisdiction in this district, and Tire Mart has committed acts of patent

infringement in this District.

THE PATENTS-IN-SUIT

8. On October 17, 2006, the D266 patent, entitled Tire Tread, was duly and

legally issued by the U.S. Patent and Trademark Office (USPTO). A true and correct copy of

the D266 patent is attached as Exhibit A. The D266 patent is valid, enforceable and currently

in full force and effect.

9. Michelin is the owner and assignee of all substantial rights, title and interest in the

D266 patent, including the right to bring this action and enforce the D266 patent against

infringers, and to collect damages for all relevant times.

FACTUAL BACKGROUND

10. Michelin is a leader in tire manufacture and innovation, and it conducts business

in the United States, including in Missouri. Michelins tire brands include Michelin,

BFGoodrich and Uniroyal.

11. Michelin makes, sells and promotes tire products whose ornamental tire tread

designs are protected by the D266 patent. These products include BFGoodrich T/A KM2 tires.

BFGoodrich T/A KM2 tires are offered for sale and/or sold in the United States, including in

Missouri.

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12. Upon information and belief, Tire Mart manufactures, uses, offers for sale, sells

and/or imports tire products in the St. Louis, Missouri area, including tire products distributed,

marketed, offered for sale and/or sold under the name Braven Off-Road.

13. Upon information and belief, Tire Mart owns and operates the website

www.bravenoffroad.com. Through its website and/or at its principal place of business, Tire Mart

markets, offers for sale and sells tire products. These tire products include Braven Off-Road

Ironside tires (Ironside tires).

14. Braven is a trademark that is registered with the USPTO under U.S. Serial No.

87099726. Upon information and belief, the trademark Braven is currently owned and used by

Tire Mart, including in connection with Ironside tires.

CLAIM FOR RELIEF

(INFRINGEMENT OF THE D266 PATENT)

15. Michelin hereby incorporates by reference paragraphs 1-14 as if fully set forth

herein.

16. The claimed design of the D266 patent is shown in Figures 1 and 2 of the patent

and described in the accompanying figure descriptions. See Exhibit A. Representative images

are below:

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17. Tire Mart markets, offers for sale and sells Ironside tires, including through its

website. 2 Representative images of Ironside tires from Tire Marts website are below:

18. In the eye of the ordinary observer familiar with the relevant prior art, giving such

attention as a purchaser usually gives, the claimed design of the D266 patent and the tread

2
See, e.g., https://bravenoffroad.com/products/braven-ironside-atv-utv-radials (last accessed
Sept. 20, 2017).

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design of at least Tire Marts Ironside tires are substantially the same, such that the ordinary

observer would be deceived into believing that the tread design of Tire Marts Ironside tires is

the design claimed in the D266 patent.

19. Michelin did not give Tire Mart authorization or license to make, use, offer to

sell, sell, or import the infringing products.

20. Tire Mart has directly infringed, and continues to directly infringe, the D266

patent by making, using, offering to sell, selling and/or importing tires, including Ironside tires,

having substantially the same ornamental design as the design claimed in the D266 patent, in

violation of 35 U.S.C. 271(a) and 289.

21. Upon information and belief, Tire Mart also induced, and continues to induce,

others to infringe the D266 patent by encouraging and promoting the use and/or sale by others

of tires that infringe the D266 patent, including but not limited to Ironside tires, in violation of

35 U.S.C. 271(b).

22. Tire Mart has had actual knowledge of the D266 patent since at least the date on

which Tire Mart received service of the complaint in this action.

23. Upon information and belief, Tire Mart has sold and continues to sell, offer to

sell, distribute, market and/or import tire products that infringe the D266 patent, including

Ironside tires, to end consumers and/or resellers with the intent that these parties will use,

market, offer to sell and/or sell the products in the United States in a manner that infringes the

D266 patent.

24. Upon information and belief, Tire Mart knew or should have known that the use,

marketing, offering to sell and selling of the infringing products by Tire Mart or its resellers

and/or customers would directly infringe the D266 patent.

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25. Tire Marts direct and induced infringement of the D266 patent has caused and

will continue to cause damage to Michelin.

26. Tire Marts direct and induced infringement has also caused and will continue to

cause irreparable harm to Michelin unless and until such infringing conduct is enjoined pursuant

to 35 U.S.C. 283 and/or the equitable powers of this Court.

27. Upon information and belief, Tire Marts acts of infringement have been or will

be undertaken with knowledge of the D266 patent. Such acts constitute willful infringement

and make this case exceptional pursuant to 35 U.S.C. 284 and 285, and entitle Michelin to

enhanced damages and reasonable attorney fees.

PRAYER FOR RELIEF

WHEREFORE, Michelin respectfully requests the following relief:

A. Entry of a judgment that Tire Mart has directly and/or indirectly infringed the

D266 patent and that such infringement has been willful;

B. Entry of a permanent injunction against Tire Mart, pursuant to 35 U.S.C. 283

and/or the equitable powers of this Court, to prevent further direct and/or induced infringement

of the D266 patent;

C. An award of damages, in an amount to be determined, adequate to compensate

Michelin for the infringement that has occurred, pursuant to 35 U.S.C. 284;

D. An Order requiring Tire Mart to account for and pay to Michelin any and all

profits made by Tire Mart from sales of its infringing products pursuant to 35 U.S.C. 289;

E. An Order requiring Tire Mart to pay Michelin its costs and attorneys fees in this

action pursuant to 35 U.S.C. 285 and/or other applicable laws;

F. Such other and further relief as the Court may deem just and proper.

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 Case: 4:17-cv-02472 Doc. #: 1 Filed: 09/26/17 Page: 8 of 8 PageID #: 8

Date: September 26, 2017

_____________
Peter W. Herzog III (Mo. Bar No. 36429)
WHEELER TRIGG ODONNELL LLP
211 N. Broadway, Suite 2825
St. Louis, Missouri 63102
Phone: (314) 326-4128
Facsimile: (303) 244-1879

John D. Murnane (pro hac vice admission forthcoming)

FITZPATRICK, CELLA, HARPER & SCINTO
1290 Avenue of the Americas
New York, NY 10104-3800
Phone: (212) 218-2100
Facsimile: (212) 218-2200

Justin J. Oliver (pro hac vice admission forthcoming)

Jason M. Dorsky (pro hac vice admission forthcoming)
FITZPATRICK, CELLA, HARPER & SCINTO
975 F Street, N.W.
Washington, DC 20004
Phone: (202) 530-1010
Facsimile: (202) 530-1055

Attorneys for Plaintiff Michelin North America, Inc.

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Case: 4:17-cv-02472 Doc. #: 1-1 Filed: 09/26/17 Page: 1 of 4 PageID #: 9

EXHIBIT A
 Case: 4:17-cv-02472 Doc. #: 1-1 Filed: 09/26/17 Page: 2 of 4 PageID #: 10
111111 1111111111111111111111111111111111111111111111111111111111111
USOOD530266S

c12) United States Design Patent c1o) Patent No.: US D530,266 S

Hutz et al. (45) Date of Patent: ** Oct. 17, 2006

(54) TIRE TREAD OTHER PUBLICATIONS

(75) Inventors: John Anthony Hutz, Greer, SC (US); Goodyear Unisteel(R) G286 SS Special Service Tire, 2004
Stephen Lash, Simpsonville, SC (US); Tread Design Guide, Jan. 2004, p. 122. 4/1.*
Gary Dean Enterline, Greer, SC (US) Tread Design Guide, 2002, pp. 117, Bridgestone M774.
Tread Design Guide, 2002, pp. 156, Bridgestone VLTS
(73) Assignee: Michelin Recherche et Technique V-Steel L-Traction S.
S.A., Granges-Paccot (CH) Tread Design Guide, 2002, pp. 157, Continental TGL2.
Tread Design Guide, 2002, pp. 165, Michelin XADN.
(**) Term: 14 Years
* cited by examiner
(21) Appl. No.: 29/238,537
Primary Examiner-Robert M. Spear
(22) Filed: Sep. 16, 2005 (74) Attorney, Agent, or Firm-E. Martin Remick; Adam
Arnold
(51) LOC (8) Cl. .................................................... 12-15
(52) U.S. Cl. ...................................................... Dl2/579 (57) CLAIM
(58) Field of Classification Search ................ D12/511,
D12/512, 513,543,544,545,565,578,579, The ornamental design for a tire tread, as shown and
D12/580, 600, 601, 901; 152/209.1, 209.8, described.
152/209.12, 209.18, 209.28 DESCRIPTION
See application file for complete search history.
FIG. 1 is a perspective view of a tire tread of this invention
(56) References Cited showing our new design, it being undestood that the tread
pattern repeats circumferentially throughout the outer cir-
U.S. PATENT DOCUMENTS
cumference and shoulder of a tire, the opposite side per-
2,014,255 A * 9/1935 King ....................... 152/209.2 spective view being an identical image thereto; and,
Dll2,993 S * 111939 Hardeman ................. D12/571 FIG. 2 is an enlarged fragmentary front elevation view of the
D158,031 S * 4/1950 Wilcox ...................... D12/544 tire tread thereof of FIG. 1.
3,559,712 A * 2/1971 Verdier .................. 152/209.14
D273,777 S * 5/1984 Igarashi eta!. ............ D12/579
In the drawings, the dark stippled surface shading represents
D295,617 S * 5/1988 Sedlack ..................... D12/579 the recessed groove portions of the tire tread having a depth
D385,520 S * 10/1997 Scheuren eta!. .......... D12/602 as best illustrated along the right edge of FIG. 1. The broken
D402,239 S 12/1998 Le eta!. .................... D12/146 line disclosure of the tire sidewall and inner bead is for
D405,403 S * 2/1999 Brown eta!. .............. D12/602 illustrative purposes only and forms no part of the claimed
D430,833 S * 9/2000 Allison ...................... D12/579 design.
D481,989 S * 11/2003 Portnoy et al ............. D12/579
D483,718 S 12/2003 Hutz eta!. ................. D12/579
D512,370 S * 12/2005 Pang ......................... D12/579 1 Claim, 2 Drawing Sheets

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 Case: 4:17-cv-02472 Doc. #: 1-1 Filed: 09/26/17 Page: 3 of 4 PageID #: 11

U.S. Patent Oct. 17, 2006 Sheet 1 of 2 US D530,266 S

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 Case: 4:17-cv-02472 Doc. #: 1-1 Filed: 09/26/17 Page: 4 of 4 PageID #: 12

U.S. Patent Oct. 17, 2006 Sheet 2 of 2 US D530,266 S

 Case: 4:17-cv-02472 Doc. #: 1-2 Filed: 09/26/17 Page: 1 of 2 PageID #: 13
JS 44 (Rev. 06/17) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

Michelin North America, Inc. Tire Mart, Inc. d/b/a Braven Off-Road

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant St. Louis City
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Wheeler Trigg O'Donnell LLP
211 N. Broadway, Suite 2825
St. Louis, MO 63102 (314) 326-4128

II. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
u 1 U.S. Government u 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State u 1 u 1 Incorporated or Principal Place u 4 u 4
of Business In This State

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Citizen or Subject of a u 3 u 3 Foreign Nation u 6 u 6

Foreign Country
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(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
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VI. CAUSE OF ACTION Brief description of cause:
Patent infringement
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VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
09/26/2017 /s/ Peter W. Herzog III #36429 Wheeler, Trigg O'Donnell LLP
FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

 Case: 4:17-cv-02472 Doc. #: 1-2 Filed: 09/26/17 Page: 2 of 2 PageID #: 14
JS 44 Reverse (Rev. 06/17)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

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Date and Attorney Signature. Date and sign the civil cover sheet.
 Case: 4:17-cv-02472 Doc. #: 1-3 Filed: 09/26/17 Page: 1 of 1 PageID #: 15

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI
Eastern Division
)
MICHELIN NORTH , )
AMERICA, INC. )
Plaintiff, )
)
v. ) Case No. 4:17-cv-2472
)
TIRE MART, INC. d/b/a , )
BRAVEN OFF-ROAD )
Defendant, )
)

ORIGINAL FILING FORM

THIS FORM MUST BE COMPLETED AND VERIFIED BY THE FILING PARTY

WHEN INITIATING A NEW CASE.

THIS SAME CAUSE, OR A SUBSTANTIALLY EQUIVALENT COMPLAINT, WAS

PREVIOUSLY FILED IN THIS COURT AS CASE NUMBER

AND ASSIGNED TO THE HONORABLE JUDGE .

THIS CAUSE IS RELATED, BUT IS NOT SUBSTANTIALLY EQUIVALENT TO ANY

PREVIOUSLY FILED COMPLAINT. THE RELATED CASE NUMBER IS AND

THAT CASE WAS ASSIGNED TO THE HONORABLE . THIS CASE MAY,

THEREFORE, BE OPENED AS AN ORIGINAL PROCEEDING.

NEITHER THIS SAME CAUSE, NOR A SUBSTANTIALLY EQUIVALENT

COMPLAINT, HAS BEEN PREVIOUSLY FILED IN THIS COURT, AND THEREFORE

MAY BE OPENED AS AN ORIGINAL PROCEEDING.

The undersigned affirms that the information provided above is true and correct.

Date: September 26, 2017 /s/ Peter W. Herzog III

Signature of Filing Party
 Case: 4:17-cv-02472 Doc. #: 1-4 Filed: 09/26/17 Page: 1 of 2 PageID #: 16

AO 440 (Rev. 12/09) Summons in a Civil Action

UNITED STATES DISTRICT COURT

for the
Eastern District
__________ Districtof
ofMissouri
__________

Michelin North America, Inc.

)
)
Plaintiff
)
v. ) Civil Action No. 4:17-cv-2472 Eastern Division
Tire Mart, Inc. d/b/a Braven Off-Road )
)
Defendant
)

SUMMONS IN A CIVIL ACTION

To: (Defendants name and address) Tire Mart, Inc. d/b/a Braven Off-Road
1815 Locust Sreet
St. Louis, MO 63103
USA

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney,
whose name and address are:
Peter W. Herzog III
WHEELER TRIGG O'DONNELL LLP
211 N. Broadway, Suite 2825
St. Louis, MO 63102
(314) 326-4128

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.

CLERK OF COURT

Date:
Signature of Clerk or Deputy Clerk
 Case: 4:17-cv-02472 Doc. #: 1-4 Filed: 09/26/17 Page: 2 of 2 PageID #: 17
AO 440 (Rev. 12/09) Summons in a Civil Action (Page 2)

Civil Action No. 4:17-cv-2472 Eastern Division

PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any) Tire Mart, Inc. d/b/a Braven Off-Road
was received by me on (date) .

I personally served the summons on the individual at (place)

on (date) ; or

I left the summons at the individuals residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date) , and mailed a copy to the individuals last known address; or

I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)
on (date) ; or

I returned the summons unexecuted because ; or

Other (specify):
.

My fees are $ for travel and $ for services, for a total of $ 0.00 .

I declare under penalty of perjury that this information is true.

Date:
Servers signature

Printed name and title

Servers address

Additional information regarding attempted service, etc:

 Case: 4:17-cv-02472 Doc. #: 1-5 Filed: 09/26/17 Page: 1 of 1 PageID #: 18

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
Michelin North America,
Inc.
, )
Plaintiff (s), )
)
4:17-cv-2472
v. ) Case No.
)
Tire Mart, Inc. d/b/a )
Braven Off-Road
, )
Defendant(s). )

NOTICE OF INTENT TO USE

PROCESS SERVER
Plaintiff
Comes now and notifies the court of the intent to use
(Plaintiff or Defendant)
Missouri Process Serving

(name and address of process server)

1430 Washington Avenue, Suite 220

St. Louis, Missouri 63103

Defendant, Tire Mart, Inc. d/b/a

To serve: Braven Off-Road
in the
(name of defendants to be served by this process server)

above-styled cause. The process server listed above possesses the

requirements as stated in Rule 4 of the Federal Rules of Civil Procedure.

The undersigned affirms the information provided above is true and correct.
09/26/2017 Peter W. Herzog III

(date) (attorney for Plaintiff)

(attorney for Defendant)