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1 California. Additionally, the majority of the witnesses and documents related to this
2 action are located in California.
3 PARTIES AND PERSONAL JURISDICTION
4 3. Plaintiff HACHIGIAN INDUSTRIES, INC. (hereinafter “HACHIGIAN”) is
5 and at all relevant times was a California corporation, with its principal place of business
6 in Encinitas, California.
7 4. Upon information and belief, Defendant EVOLVE USA LLC (hereinafter
8 “EVOLVE”), is a California limited liability company with its principal place of business
9 in San Francisco, California. Upon information and belief, EVOLVE transacts business
10 in California, including, but not limited to importing, distributing, advertising, selling
11 and/or offering for sale the goods at issue in this Complaint. The acts of infringement and
12 other wrongful acts alleged in this Complaint occurred in the Southern District of
13 California.
14 5. HACHIGIAN is ignorant of the true names and capacities of defendants
15 DOES 1 through 50, inclusive, and by reason thereof sues said Defendants by their
16 fictitious names. HACHIGIAN will obtain leave of court, if necessary, to amend this
17 Complaint to allege the true names and capacities of these fictitiously named Defendants
18 when their identities are fully and finally ascertained.
19 NATURE OF THE DISPUTE
20 6. HACHIGIAN is widely recognized for its diving and spearfishing products,
21 including flotation devices and other flotation related products, which HACHIGIAN has
22 created, manufactured and/or distributed throughout the United States under the name
23 GANNET and/or GANNET DIVE COMPANY USA (hereinafter collectively
24 “GANNET”). HACHIGIAN has expended substantial resources in developing and
25 protecting the inflatable device primarily for flotation identified in United States Patent
26 No. D783,205 S (hereinafter “Subject Patent”). See, Exhibit A attached hereto and
27 incorporated herein by reference. Accordingly, HACHIGIAN has developed a significant
28 amount of goodwill related to the Subject Patent.
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1 products would use Defendants’ products to infringe the Subject Patent and intended such
2 infringement.
3 20. Defendants’ infringement, and inducement to infringe the Subject Patent
4 have been willful and have deliberately injured and will continue to injure HACHIGIAN
5 unless and until this Court enters a preliminary or permanent injunction prohibiting
6 further infringement and, specifically, enjoining further manufacture, use, importation,
7 sale, and/or offer for sale of products that fall within the scope of the design in the Subject
8 Patent.
9 21. Defendants’ infringement, and inducement to infringe the Subject Patent
10 have been willful and have deliberately injured and/or damaged HACHIGIAN in an
11 amount to be determined at trial.
12 SECOND CLAIM FOR RELIEF
13 (Unfair Competition against All Defendants)
14 22. HACHIGIAN realleges, and incorporates by this reference, each and every
15 allegation set forth in paragraphs 1 through 21, inclusive.
16 23. The acts and conduct of Defendants, and each of them, alleged in this
17 Complaint (i) constitute an unfair competition at common law; (ii) violate Sections 17200
18 et seq. and 17500 et seq. of the California Business and Professions Code; and/or (iii)
19 constitute an infringement of HACHIGIAN’s statutory rights in its Subject Patent and
20 improper and unfair competition with HACHIGIAN.
21 24. Defendants have been engaged in trade and commerce in California through
22 advertising, selling and distributing goods.
23 25. Defendants have employed unlawful, unfair and/or fraudulent business
24 methods, acts and practices within the meaning of Sections 17200 et seq. and 17500 et
25 seq. of the California Business and Professions Code. These acts or practices include, but
26 are not limited to, infringement of products that fall within the scope of the design in the
27 Subject Patent.
28 26. Defendants’ conduct as alleged above has caused HACHIGIAN
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1 ascertainable damages and has damaged and will continue to damage HACHIGIAN’s
2 goodwill and reputation and has resulted in a loss of profits to HACHIGIAN in an
3 amount which is unknown at the present time, but which is in excess of the jurisdictional
4 minimum of this court. Further, Defendants, and each of them, have made profits from
5 the infringing use and from the acts of unfair competition, the extent of such profits being
6 currently unknown to HACHIGIAN, but in excess of the jurisdictional minimum of this
7 Court.
8 27. Defendants’ acts are capable of repetition and have harmed and continue to
9 harm the public interest.
10 28. HACHIGIAN is entitled to an award of damages and its attorney’s fees and
11 costs.
12 29. Defendants used such unlawful and unfair trade methods, practices and acts
13 willfully and knowingly.
14 30. Unless permanently restrained and enjoined, Defendants, and each of them,
15 will continue to offer goods using a design which infringes HACHIGIAN’s Subject
16 Patent and causing HACHIGIAN substantial damages to its business, reputation and
17 goodwill. Because the amount of these damages cannot be readily ascertained,
18 HACHIGIAN is without an adequate remedy at law.
19 PRAYER FOR RELIEF
20 WHEREFORE, HACHIGIAN respectfully requests judgment as follows:
21 1. That the Court enter a judgment against Defendants, and each of them, that
22 they have:
23 a. Infringed the rights of HACHIGIAN in the Subject Patent and/or
24 induced others to infringe the Subject Patent;
25 b. Competed unfairly with HACHIGIAN at common law and in
26 violation of Sections 17200 et seq. and 17500 et seq. of the California Business and
27 Professions Code; and
28 c. Otherwise injured the business reputation and business of
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20
21 By: s/ Will Lemkul
Will Lemkul
22 Attorney for HACHIGIAN
INDUSTRIES, INC.
23
24
25
26
27
28
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COMPLAINT
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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.)
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Will Lemkul, Esq. (SBN 219061) MORRIS, SULLIVAN & LEMKUL, LLP '18CV0653 BTM JLB
9915 Mira Mesa Blvd. Suite 300 SD, CA 92131 (858) 566-7600
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)
’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4
of Business In This State
’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
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VIA FEDEX
This office has been retained by Garo Jack Hachigian and Gannet Dive
Company USA (hereinafter “Gannet”) to represent their intellectual property
rights in relation to certain design patents. The purpose of this correspondence is
to notify you, and thus, Evolve USA LLC (hereinafter “Evolve”), that Mr. Hachigian,
the CEO of Gannet, is the owner of U.S. Design Patent No. D783,205 S
(hereinafter the “Issued Patent”). I have enclosed a copy of the Issued Patent for
your reference.
Certainly, if upon your review of the enclosed Issued Patent you believe it to
be irrelevant to the issue of your activities and/or product(s), please provide me with
any facts or information that tends to support your position, and I will give them my
immediate attention.
I look forward to hearing from you at your earliest opportunity, but no more
than ten (10) days from the date of this correspondence.
JAMES
JA
AM
MES
ES P
P. BRODER
BROD
BR
JPB:dne
Enclosure (US Design Patent No. D783,205 S)