IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.

12-cv-02180 BISON DESIGNS, LLC, a Colorado limited liability company, Plaintiff, vs. BRIGHTON COLLECTIBLES, INC.; and DOES 1 through 10, inclusive. Defendants.

VERIFIED COMPLAINT AND JURY DEMAND

COMES NOW Plaintiff, Bison Designs, LLC, (Plaintiff or Bison), by its attorneys, Brown & Kannady, LLC, and states as follows: JURISDICTION 1. This is an action for patent infringement arising under 35 U.S.C. 271, for unfair

competition arising under the Lanham Act of 1946, as amended, 15 U.S.C. 1125(a), and for related state and common law claims. The Court has subject matter jurisdiction over this case and the parties pursuant to 28 U.S.C. 1331, 1338, 1367(a), and 15 U.S.C. 1221. The Court has personal jurisdiction over Defendants pursuant to Fed.R.Civ.P. 4(k)(1) and/or the Colorado Long Arm Statute, C.R.S. 13-1-124, because Defendants conduct business in Colorado and sell their infringing product in Colorado. Additionally, Defendant Brighton Collectibles, Inc. has filed a Statement of Foreign Entity Authority with the Colorado Secretary of State dated

November 4, 2005 and has maintained a registered agent in Denver, Colorado since the time of that filing. This complaint includes common law claims over which this Court has jurisdiction under 28 U.S.C. 1338(b), in that said claims are joined with substantial and related claims under the Patent Laws of the United States of America. VENUE 2. Venue is proper in the United States District Court for the District of Colorado

pursuant to 28 U.S.C. 1391 and 1400(a), on the grounds that the infringement, unfair competition, and other wrongful acts giving rise to these claims occurred in this judicial district, and on the grounds that the Defendants and their agents at all times material hereto have done business within this judicial district, specifically in the State of Colorado. THE PARTIES 3. Plaintiff Bison, at all times pertinent to this Complaint, has been a limited liability

company duly organized and existing under the laws of the State of Colorado with its principal place of business located at 735 S. Lincoln, Longmont, Colorado 80501. Plaintiff designs and sells promotional products throughout the United States of America. Brian James Kelleghan (Kelleghan) is the President of Bison. 4. Bison was assigned U.S. Design Patent No. D455,642 (issued on April 16, 2002),

which protects a product invented by Kelleghan, called Clip. 5. Bison was assigned U.S. Design Patent No. D487,014 (issued on February 24,

2004), which protects a product invented by Kelleghan, called Curved Heart Shaped Carabiner.

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Bison was assigned U.S. Design Patent No. D520,345 (issued on May 9, 2006),

which protects a product invented by Kelleghan, also called Clip. 7. Plaintiff is informed and believes, and based thereon alleges, that at all times

pertinent to this Complaint, Defendant Brighton Collectibles, Inc. (Brighton) has been a foreign corporation with a principal place of business located at 14022 Nelson Avenue, City of Industry, CA 91746. Brighton maintains a registered agent in Colorado called Business Filings Inc. located at 1675 Broadway, Ste. 1200, Denver, CO. 8. Defendants, Does 1 through 10, inclusive, are sued herein under fictitious names

and capacities because their identities are unknown to Plaintiff. When the true names and capacities are ascertained, Plaintiff will amend this Complaint by inserting the same herein. Each and every allegation of this complaint which charges Brighton shall also charge each of Does 1 through 10, inclusive. 9. At all times pertinent to this Complaint, Defendants, Does 1 through 10, inclusive,

were the agents and employees of Brighton and in taking the actions hereinafter alleged were acting within the course and scope of such agency and with Brightons permission and consent. FACTUAL ALLEGATIONS 10. Beginning on or about January 2002 Bison began to market and sell its Curved

Heart Shaped Carabiner, in the United States of America as Bisons Heart Mini. The Heart Mini is made of durable, lightweight aluminum and is available in six different high-quality, anodized finishes that can be customized with company names, logos, artwork and other graphic material. A true and correct depiction of the Heart Mini appears on Bisons Web page, located at http://www.bisondesigns.com/, a copy of which is attached hereto as Exhibit A.

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On December 23, 2002, Kelleghan filed a United States Patent Application in the

United States Patent and Trademark Office (USPTO) to protect the ornamental design of the Curved Heart Shaped Carabiner, and Kelleghan assigned said patent application to Bison. 12. On February 14, 2004, the USPTO duly and legally issued to Kelleghan the `014

Patent for the Curved Heart Shaped Carabiner, which has been assigned to Bison. A true copy of the `014 Patent is attached hereto as Exhibit B. 13. Kelleghan was and continues to be the first and original inventor of the Curved

Heart Shaped Carabiner, now sold as Bisons Heart Mini. 14. Bison is, and at all relevant times mentioned herein was, the lawful assignee of

the `014 Patent. 15. Bison has neither licensed nor assigned any rights under the `014 Patent to the

Defendants, nor to any agent of the Defendants. 16. Since approximately April 2004 Bison has placed the required statutory patent

notice on each Heart Mini that Bison has produced. 17. Beginning before December 2011 and continuing through the present, Brighton

has designed, manufactured, and sold its own version of Bisons Curved Heart Shaped Carabiner (the Brighton Curved Heart Shaped Carabiner). 18. The Brighton Curved Heart Shaped Carabiner is substantially similar in design

and shape to Bisons Curved Heart Shaped Carabiner. A true and correct copy of the Brighton Curved Heart Shaped Carabiner is included in the Exhibit C, attached hereto.

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Bison is informed and believes, and based thereon alleges, that the Brighton

Curved Heart Shaped Carabiner was, and is, marketed, sold, and offered for sale throughout the United States, including but not limited to the State of Colorado. 20. Beginning on or about October 2001 Bison began to market and sell Clip in the The Cobra Clip is made of durable, lightweight

United States as Bisons Cobra Clip.

aluminum and is available in six different high-quality, anodized finishes that can be customized with company names, logos, artwork and other graphic material. A true and correct depiction of the Cobra Clip appears on Bisons Web page, located at http://www.bisondesigns.com/, a copy of which is included in Exhibit D, attached hereto. The Cobra Clip is sold in a variety of alternate sizes, including the Cobra Large, Cobra with Web and Cobra with Web Large. True and correct depictions of these alternate sizes are included in Exhibit D. 21. On October 23, 2000, Kelleghan filed a United States Patent Application in the

USPTO to protect the ornamental design of Clip, and Kelleghan assigned said patent application to Bison. 22. On April 16, 2002, the USPTO duly and legally issued U.S. Design Patent No.

D455,642 (the `642 Patent) for Clip. A true copy of the `642 Patent is included in Exhibit E, which is attached hereto. 23. Kelleghan was and continues to be the first and original inventor of Clip, now

sold as Bisons Cobra Clip. 24. Bison is, and at all relevant times mentioned herein was, the lawful assignee of

the `642 Patent.

25.

Bison has not licensed nor assigned any rights under the `642 Patent to the

Defendants, nor to any agent of the Defendants. 26. Since approximately April 2002 Bison has placed the required statutory patent

notice on the packaging of each Cobra Clip that Bison has produced. 27. Beginning on or about January 2004 Bison began to market and sell Clip in the

United States as Bisons Air Hook. The Air Hook is made of durable, lightweight aluminum and is available in six different high-quality, anodized finishes that can be customized with company names, logos, artwork and other graphic material. A true and correct depiction of the Air Hook appears on Bisons Web page, located at http://www.bisondesigns.com/, a copy of which is included in Exhibit F, attached hereto. 28. On April 2, 2004, Kelleghan filed a United States Patent Application in the

USPTO to protect the ornamental design of Clip, and Kelleghan assigned said patent application to Bison. 29. On May 9, 2006, the USPTO duly and legally issued U.S. Design Patent No.

D520,345 (the `345 Patent) for Clip. A true copy of the `345 Patent is included in Exhibit G, which is attached hereto. 30. Kelleghan was and continues to be the first and original inventor of Clip, now

sold as Bisons Air Hook. 31. Bison is, and at all relevant times mentioned herein was, the lawful assignee of

the `345 Patent. 32. Bison has not licensed nor assigned any rights under the `345 Patent to the

Defendants, nor to any agent of the Defendants.

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Beginning on or about May 2006 Bison has placed the required statutory patent

notice on the packaging of each Air Hook that Bison has produced. 34. Beginning before December 2011 and continuing through the present, Brighton

has designed, manufactured, and sold its own version (collectively, the Brighton Clip Designs) of Bisons patented Clip designs protected by the `642 Patent and/or `345 Patent (collectively, Bisons Clip Designs). 35. The Brighton Clip Designs are substantially similar in design and shape to

Bisons Clip Designs. True and correct copies of the Brighton Clip Designs are included in Exhibit H, which is attached hereto. 36. Bison is informed and believes, and based thereon alleges, that the Brighton Clip

Designs, were, and are, marketed, sold, and offered for sale throughout the United States, including but not limited to the State of Colorado. FACTUAL ALLEGATIONS COMMON TO ALL CLAIMS FOR RELIEF 37. On or about December 22, 2011, Bison, by and through counsel, notified Brighton

by priority mail letter transmission of Brightons infringement of Bisons U.S. intellectual property rights (the Notice Letter). In the Notice Letter, Bison asked Brighton to discontinue the sale and offer for sale of Bisons product designs, specifically those covered under the `014 Patent and the `642 Patent. Bison also furnished Brighton with a list of Bisons protected products, to allow Brighton to avoid inadvertent infringement concerning those products. A copy of the Notice Letter and accompanying return receipt are attached hereto as Exhibit I and Exhibit J, respectively.

38.

On February 6, 2012, counsel for Brighton responded to the Notice Letter,

denying Bisons claims. 39. On March 7, 2012, counsel for Bison replied to Brightons February 6, 2012

letter, providing additional support for Bisons allegations. 40. On March 29, 2012, Brighton filed a Complaint for Declaration Judgment of Non-

Infringement (California Complaint) in the Central District of California. A copy of the California Complaint is attached hereto as Exhibit K. 41. On March 29, 2012, counsel for Brighton sent a copy of the California Complaint

to counsel for Bison. A copy of the cover letter is attached hereto as Exhibit L. 42. 43. 44. Bison obtained local counsel in California. The California Complaint was never served on Bison. On July 25, 2012, counsel for Brighton filed a Notice of Dismissal of the

California Complaint. A copy of the Notice of Dismissal is attached hereto as Exhibit M. 45. 46. 47. The Notice of Dismissal was never served on Bison. As a result, Bison has instigated the instant lawsuit. Bison is informed and believes, and based thereon alleges, that following receipt

of the Notice Letter by Brightons counsel, the Defendants have continued to sell and offer for sale the Brighton Curved Heart Shaped Carabiner products and the Brighton Clip Designs, which infringes upon Bisons intellectual property rights. 48. Bison is informed and believes, and based thereon alleges, that following receipt

of the Notice Letter by Brightons counsel, the Defendants have continued to manufacture,

import, sell and/or distribute infringing and/or potentially infringing products within this judicial district and elsewhere in the United States of America. 49. Bison is informed and believes, and based thereon, alleges that the Defendants are

willfully manufacturing, importing, selling and/or distributing the infringing products in derogation of Bisons intellectual property rights. FIRST CLAIM FOR RELIEF (Patent Infringement Against Brighton and Does 1 through 10) 50. Plaintiff realleges and incorporates by reference each and every allegation

contained in paragraphs 1 through 49 as though fully set forth herein. 51. One or more of the Defendants have infringed and continue to infringe upon

Bisons `014 Patent, `642 Patent and `345 Patent by applying Bisons patented designs, or a colorable imitation thereof, to an article of manufacture and thereafter using, selling or distributing said products within this judicial district and elsewhere throughout the United States. 52. Bison is informed and believes, and based thereon alleges, that the Defendants

colorable imitations appropriate the novelty in Bisons designs which distinguished them from the prior art. 53. Bison is further informed and believes, and based thereon alleges, that the design

of Defendants colorable imitation and Bisons design are substantially the same, such as to deceive consumers into purchasing one while supposing it to be the other. 54. By reason of the Defendants infringement of Bisons `014 Patent, `642 Patent

and `345 Patent as alleged above, Bison has suffered lost product sales which it otherwise would have made. The Defendants are liable to Bison for the lost profits and/or reasonable royalties as

well as any additional profits of the Defendants attributable to such infringement. Said damages are in an amount that is not yet fully ascertainable. 55. Unless restrained and enjoined, the Defendants acts of infringement as alleged

above, will cause Bison irreparable injury. 56. One or more of the Defendants had knowledge of Plaintiffs `014 Patent and `642

Patent at least as early as early as December 22, 2011, prior to committing additional acts of infringement, as alleged above. Notwithstanding the Defendants knowledge that their colorable imitation was and is an infringing device of Bisons Patents, one or more of the Defendants continued to manufacture, sell and/or distribute these imitations in this judicial district and elsewhere. Said acts of the Defendants were done willfully, maliciously, intentionally and in bad faith, making this an exceptional case under 35 U.S.C. 285. Bison is therefore entitled to and hereby requests an award of its reasonable attorney fees which Bison has incurred, and will continue to incur, as a result of the Defendants acts as alleged herein. Bison also seeks the recovery of attorneys fees and costs as the prevailing party in this action. 57. Bison is further entitled to enhanced damages and statutory penalties pursuant to

35 U.S.C. 284 and 289, including, but not limited to, treble damages and Defendants total profits. SECOND CLAIM FOR RELIEF (Unfair Competition Against Brighton and Does 1 through 10) 58. Bison realleges and incorporates by reference each and every allegation contained

in paragraphs 1 through 57, as though fully set forth herein. 59. The acts of Defendants, as alleged herein, constitute unfair or fraudulent business

practices that are damaging to the public in violation of Section 1125(a) of the Lanham Act. 10

60.

As a direct and proximate result of the aforesaid conduct, and as a foreseeable

consequence thereof, Bison has sustained general damages in an amount that will be proven at the time of trial. 61. Bison has incurred, and will continue to incur attorneys fees and court costs

arising from the acts of the Defendants as alleged herein. Bison seeks the recovery of attorneys fees and costs as the prevailing party in this action. 62. Bison is informed and believes, and based thereon alleges, that the actions of the

Defendants were willful and malicious and done with the intent to injure Bison. Therefore, Bison is entitled to recover, and hereby requests, exemplary damages from Defendants. 63. The Defendants wrongful acts, as alleged herein, unless restrained and enjoined

by order of this Court, will cause extreme and irreparable injury to Bison, its reputation, and goodwill. Bison has no adequate remedy at law for the injuries that have been, and will continue to be, sustained in this action. THIRD CLAIM FOR RELIEF (Accounting Against Brighton and Does 1 through 10) 64. Bison realleges and incorporates by reference each and every allegation contained

in paragraphs 1 through 63, as though fully set forth herein. 65. Plaintiff is informed, believes, and based thereon alleges, that the Defendants, and

each of them, have manufactured, imported, sold, and/or distributed products which directly infringe on Plaintiffs patents including the `014 Patent, `642 Patent and `345 Patent. 66. The infringement by the Defendants has deprived Bison of sales and/or royalties,

which it otherwise would have made and resulted in the unjust enrichment of the Defendants at the expense and to the detriment of Bison, among other damages. The Defendants actions have 11

resulted in improper profits, revenues, and other financial gains to the Defendants for which Bison, in equity and good conscience, is rightfully entitled to reimbursement. 67. Bison does not yet know the precise number of infringing products sold or the

amount of revenue and profits realized by the Defendants, which information is uniquely within the knowledge of Defendants. Bison is, therefore, entitled to an accounting, at the Defendants expense, to determine the amount of profits that the Defendants have unjustly obtained through their acts of infringement. FOURTH CLAIM FOR RELIEF (For Injunctive Relief Against Brighton and Does 1 through 10) 68. Bison realleges and incorporates by reference each and every allegation contained

in paragraphs 1 through 67, as though fully set forth herein. 69. By reason of the wrongful acts and unlawful conduct as hereinabove alleged, the

Defendants have infringed and continue to infringe the claims of the `014 Patent, `642 Patent and `345 Patent by making, using, selling or distributing within this judicial district and elsewhere throughout the United States, the above-described products embodying the inventions claimed in the said patents. 70. Unless and until so enjoined and restrained by order of this Court, the Defendants

will continue to cause great and irreparable harm and damage to Bison. Bison has no adequate remedy at law for the damages it will suffer should the Defendants be permitted to continue the wrongful conduct alleged herein. In the absence of injunctive relief, it will be extremely difficult and impracticable to ascertain the exact amount of damages that Bison will sustain as a result of the Defendants continuing infringing conduct.

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FIFTH CLAIM FOR RELIEF (For Constructive Trust Against Brighton and Does 1 through 10) 71. Bison realleges and incorporates by reference each and every allegation contained

in the paragraphs 1 through 70, as though fully set forth herein. 72. All revenue and profits that the Defendants have wrongfully and unjustly obtained

as a result of their acts of infringement are subject to an equitable lien and constructive trust for the benefit of Bison. Bison, therefore, requests that this Court impose a constructive trust on the proceeds of the sales of any infringing products that are wrongfully possessed by the Defendants, including any portion thereof which may be in the hands of others, irrespective of whether such persons or entities are named Defendants herein, in order to preserve said proceeds for Bison. PRAYER FOR RELIEF On The First Claim for Relief WHEREFORE, Bison prays for judgment as follows: 1. For an award against the Defendants, jointly and severally, for actual damages,

including lost profits and a reasonable royalty, according to proof; 2. For an award of all gains, profits, and advantages derived by the Defendants by

their infringement of Bisons `014 Patent, `642 Patent and `345 Patent; 3. For enhanced statutory damages, including, but not limited to, treble damages and

Defendants total profits; 4. For injunctive relief in the form of a preliminary and permanent injunction,

enjoining the Defendants from manufacturing, importing, selling, marketing and/or distributing any products that infringe on Bisons`014 Patent, `642 Patent and/or `345 Patent;

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5.

For an order requiring the Defendants to deliver up to be impounded during the

pendency of this action all of allegedly infringing products; 6. For an order requiring the Defendants remaining inventory of infringing products

to be delivered up to the custody of the Court for destruction; 7. 8. For reasonable attorneys fees under 35 U.S.C. 285, according to proof; For interest at the maximum legal rate on all damages from the date first incurred

until paid, if applicable; On The Second Claim for Relief 9. practices; 10. 11. 12. For the recovery of attorneys fees and costs; For exemplary damages; For injunctive relief in the form of a preliminary and permanent injunction For restitution of all revenue and profits from the Defendants unfair business

enjoining the Defendants from engaging in future acts of consumer confusion and unfair or deceptive business practices; On The Third Claim for Relief 13. For an accounting of all gains, profits, and advantages derived from the

Defendants infringement of Bisons `014 Patent, `642 Patent and `345 Patent, at the Defendants expense; On The Fourth Claim for Relief 14. For injunctive relief in the form of a preliminary and permanent injunction,

enjoining the Defendants, their officers, directors, agents, servants, employees, representatives,

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attorneys, related companies, successors, assigns, and all others in active concert or participation with them from manufacturing, importing, selling, marketing and/or distributing any products which infringe upon Bisons `014 Patent, `642 Patent and/or `345 Patent; On The Fifth Claim for Relief 15. For imposition of a constructive trust on all revenues and profits from

Defendants infringement of Bisons `014 Patent, `642 Patent and `345 Patent; On All Claims for Relief 16. For attorney fees, costs, expert witness fees, and pre- and post-judgment interest

as permitted by law; 17. 18. Punitive damages as provided by law; and For such other and further relief as the Court may deem just and proper.

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JURY DEMAND The Plaintiff hereby demands trial by jury on all issues so triable.

Respectfully submitted this 17th day of August 2012.

BROWN & KANNADY, LLC

/s/ Scott T. Kannady Scott T. Kannady, No. 29995 David J. Meretta, No. 44409 BROWN & KANNADY, LLC 2000 South Colorado Blvd., Suite 2-610 Denver, CO 80222 Phone: (303) 757-3800 Fax: (303) 757-3815 E-mail: scott@brownlegal.com E-mail: dmeretta@gmail.com ATTORNEYS FOR PLAINTIFF BISON DESIGNS, LLC 735 S. Lincoln St. Longmont, Colorado 80501

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