UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. _________________________ DUEL CO., INC.

, a Japanese corporation, Plaintiff,

v. BASS PRO SHOPS OUTDOOR WORLD, LLC, a Missouri limited liability company, Defendant. _________________________________________/

COMPLAINT FOR PATENT AND TRADEMARK INFRINGEMENT AND DEMAND FOR JURY TRIAL Plaintiff, DUEL CO., INC. (Duel or Plaintiff), by and through its undersigned counsel, hereby sues Defendant, BASS PRO SHOPS OUTDOOR WORLD, LLC (Bass Pro Shops or Defendant), and states: NATURE OF THE ACTION 1. Duel Co., Inc. is the owner of U.S. Patent No. 7,752,801 (the `801 Patent), U.S.

Trademark Reg. No. 4381412 (the `412 Registration) for the trademark RATTLN (the RATTLN trademark), and the trademark RATTLN VIBE, described more fully below. 2. This is a civil action for the infringement of the `801 Patent, the RATTLN

trademark, and the RATTLN VIBE trademark, by the Defendant. 3. In general, the technology at issue in the `801 Patent describes an improved

fishing lure that changes color according to a viewing direction.

PARTIES 4. Duel is a corporation organized under the laws of Japan, with its principal place

of business at Fukuoka Daiichi Seimei-Kan 7F, 1-1 Tsunaba-Machi, Hakata-Ku, Fukuoka 8120024, Japan. 5. Duel distributes its products through its wholly-owned U.S. subsidiary, Yo-Zuri

America, Inc., located in Port St. Lucie, Florida. 6. Upon information and belief, Defendant Bass Pro Shops Outdoor World, LLC, is

a Missouri limited liability company having its principal place of business at 2500 E. Kearney Street, Springfield, Missouri 65803. 7. Upon information and belief, Defendant operates stores throughout the United

States, including several retail outlet stores within the Southern District of Florida. JURISDICTION & VENUE 8. This is a civil action for patent infringement arising under the Patent Laws of the

United States, 35 U.S.C. 101 et. seq., trademark infringement, and unfair competition under the United States Trademark Act (Lanham Act), 15 U.S.C. 1051 et seq., and violation of the Florida Unfair and Deceptive Trade Practices Act, Florida Statutes 501.20 et. seq. 9. This Court has subject matter jurisdiction over the claims set forth below pursuant

to 28 U.S.C. 1331, 1332, 1338, and 1367(a). 10. The Defendant has transacted and continues to transact business in the United

States and in this judicial district by: Using or causing to be used; making or causing to be made; importing or causing to be imported; offering to sell or causing to be offered for sale; and selling or causing to be sold directly, through intermediaries and as an intermediary, a variety of

products that infringe the`801 Patent, RATTLN trademark, and the RATTLN VIBE trademark. 11. This Court has personal jurisdiction over Defendant because of its purposeful

direction of business activities, acts of patent infringement, and acts of trademark infringement, within the United States and within this judicial district, including the acts alleged herein, both directly, through one or more intermediaries, and/or as an intermediary. 12. Venue is proper in this District pursuant to 28 U.S.C. 1391 because the

Defendant is subject to personal jurisdiction in this District, and is accordingly deemed, pursuant to 28 U.S.C. 1391(c), to reside in this District for purposes of venue. In addition, a substantial part of the events or omissions giving rise to the asserted claims occurred in this District. PLAINTIFFS INTELLECTUAL PROPERTY RIGHTS 13. Duel is the owner of U.S. Patent No. 7,752,801 (the `801 Patent), which the

United States Patent and Trademark Office (USPTO) duly and lawfully issued on July 13, 2010. A copy of the `801 Patent is attached as Exhibit A. 14. Duel is the owner of U.S. Trademark Reg. No. 4381412 (RATTLN), which

the USPTO registered on August 6, 2013, in connection with fishing tackle, fishing tackle, namely, bite indicators and bite sensors; fishing creels; artificial fishing bait; animal hunting decoys; fishing hooks; floats for fishing; fishing lines; lures for hunting or fishing; fishing reels; fishing rods. A copy of the `412 Registration is attached as Exhibit B. 15. Duel has been using the RATTLN trademark to promote the sale of its lure

products within the United States since at least as early as March 1, 2001. 16. Duel, independently, and through its authorized U.S. distributor, advertises its

lure products including through the use of its RATTLN trademark.

17.

As a result of its use, advertising and public acceptance of the RATTLN

trademark, as well as the extensive sale of products under the RATTLN trademark, the consuming public and the trade have come to know and associate the RATTLN mark with Plaintiff, with the result that the mark has acquired distinctiveness and secondary meaning in the marketplace, symbolizing the extensive goodwill that Duel has created. Therefore, the

distinctive RATTLN trademark has acquired distinctiveness and significant secondary meaning in the minds of the relevant public. 18. Duel. 19. Duel has been using the RATTLN VIBE trademark to promote the sales of its The distinctive RATTLN trademark has become and is a valuable asset of

lures within the United States since at least as early as 2003. 20. Duel, independently, and through its authorized U.S. distributor, advertises its

lure products including through the use of its RATTLN VIBE trademark. 21. Over the years, Duel has acquired significant common law trademark rights in its

RATTLN VIBE trademark because of its use of that trademark to advertise and promote its lures. 22. As a result of its advertising and public acceptance of the RATTLN VIBE

trademark, as well as the extensive sale of products under the RATTLN VIBE trademark, the consuming public and the trade have come to know and associate the RATTLN VIBE mark with Plaintiff, with the result that the mark has acquired distinctiveness and secondary meaning in the marketplace, symbolizing the extensive goodwill that Duel has created. Therefore, the distinctive RATTLN VIBE trademark has acquired distinctiveness and significant secondary meaning in the minds of the relevant public.

23. of Duel. 24.

The distinctive RATTLN VIBE trademark has become and is a valuable asset

Defendant is marketing, selling, and offering for sale fishing lures that infringe

Duels patent and trademark rights. 25. All conditions precedent to the bringing of this action, have either been satisfied

or have been waived by Defendant. COUNT I: PATENT INFRINGEMENT OF THE `801 PATENT 26. 27. Duel herein incorporates by reference the allegations of paragraphs 1 25. Defendant has infringed and continues to infringe one or more claims of the `801

Patent. The infringing acts include, but are not limited to, using, causing to be used, making, causing to be made, importing, causing to be imported, offering to sell, causing to be offered for sale, selling, and/or causing to be sold, products that infringe a claim of the `801 Patent in this judicial district and elsewhere within the United States. The Defendant is liable for infringement of the `801 Patent pursuant to 35 U.S.C. 271. By way of example, and without limitation, Defendants products marketed as Offshore Angler Island Popper Series, (e.g., Flying Fish, Mackerel, Dorado, Tuna models) meet each and every element of at least claim 1 of the `801 Patent, either literally or equivalently. 28. Duel has been and will continue to be injured by Defendants past and continuing

infringement of the `801 Patent and is without adequate remedy at law. 29. The Defendants infringing acts have caused damage to Duel, and Duel is entitled

to recover from the Defendant the damages sustained by Duel as a result of the wrongful acts in an amount subject to proof at trial. The Defendants infringement of Duels exclusive rights

under the `801 Patent will continue to damage Duel, causing irreparable harm, for which there is no adequate remedy at law, unless it is enjoined by this Court. 30. Upon information and belief, Defendants infringement of the `801 Patent is

willful and deliberate, entitling Duel to increased damages under 35 U.S.C. 284 and to attorneys fees and costs incurred in prosecuting this action under 35 U.S.C. 285. COUNT II: FEDERAL TRADEMARK INFRINGEMENT 31. As a cause of action and ground for relief, Duel alleges trademark infringement

by Defendant under 35 U.S.C. 1114 and incorporates by reference the allegations of paragraphs 1-25. 32. Duel is the owner of U.S. Trademark Reg. No. 4381412 (RATTLN), which

the USPTO registered on August 6, 2013. See Exhibit B. 33. Duels lures sold under the RATTLN trademark are offered for sale and sold

in commerce from March 2001 to the present, Duels advertising and sales of lures under the RATTLN trademark have been and are significant. As a result of Duels substantial

advertising and sales under the RATTLN trademark, the RATTLN trademark has become a distinctive indication of the origin of the lures sold by Duel, and serves to indicate Duel as the source of origin of its RATTLN lures. Notwithstanding Duels well-known and prior exclusive rights in the RATTLN trademark, Defendant adopted and commenced use of a confusingly similar mark (the Infringing RATTLIN VIBE Mark) in connection with fishing lures sold in this judicial district and in commerce. 34. The Infringing RATTLIN VIBE Mark adopted and used by Defendant is

confusingly similar to Duels RATTLN trademark and is used on the same and/or similar

products that are marketed to the same class of consumers through the same and/or similar channels of trade. 35. Defendants unauthorized use of the Infringing RATTLIN VIBE Mark in

commerce for the same goods offered by Duel is calculated to, and is likely to, deceive, mislead and confuse the relevant consumers as to an affiliation, connection, or association with Duel, or as to the origin, sponsorship, or approval of Defendants goods and/or commercial activities, in violation of 35 U.S.C. 1114. 36. As a proximate result of Defendants unlawful acts as alleged herein, Duel has

suffered and will, without judicial intervention, continue to suffer great damage to its business, goodwill, reputation and profits. 37. Duel has no adequate remedy at law for the infringement of its RATTLN

trademark as alleged herein. Unless the use of the Infringing RATTLIN VIBE Mark is permanently enjoined by the Court, Duel will continue to suffer irreparable harm. 38. Duel is entitled to recover from Defendant all damages it has and may later

sustain due to Defendants improper conduct and is further entitled to recover Defendants profits obtained from their improper conduct, in an amount to be proven. COUNT III: FALSE DESIGNATION OF ORIGIN UNDER THE LANHAM ACT 43(a), 15 U.S.C. 1125(a) 39. 40. Duel herein incorporates by reference the allegations of paragraphs 1-25. Duels RATTLN VIBE trademark and RATTLN trademark (collectively

referred to as the Duel Marks) are inherently distinctive and/or have acquired distinctiveness, and each has become exclusively associated with, and exclusively identifies, Duels lures. 41. Subsequent to Duels prior adoption and use of its Duel Marks and its promoting its Duel Marks, Defendant willfully and intentionally

and developing public goodwill for

adopted a confusingly similar mark, RATTLIN VIBE (the Infringing RATTLIN VIBE Mark) for use in connection with the sale of Defendants lures. 42. Defendant uses the Infringing RATTLIN VIBE Mark on the packaging for its

lure. A photograph of Defendants product showing the use of the Infringing RATTLIN VIBE Mark is attached as Exhibit C. 43. Upon information and belief, Defendant adopted, used, and is using the Infringing

RATTLIN VIBE Mark to trade off of the good will generated by Duel in its RATTLN and RATTLN VIBE marks over many years. 44. Because of the nearly identical resemblance between each of the RATTLN

and RATTLN VIBE marks and the Infringing RATTLIN VIBE Mark, and because Duel and the Defendant are selling the exact same type of product, lures, and both products appear in the exact same stores, there is a likelihood of confusion among consumers of their goods. 45. By using the Infringing RATTLIN VIBE Mark, with knowledge that Duel owns

and has used, and continues to use, its RATTLN and RATTLN VIBE marks, Defendant is likely to cause confusion and mistake among consumers of their goods. 46. Defendants use of the Infringing RATTLIN VIBE Mark has been without Duels

knowledge, approval or consent and, upon information and belief, has been done by it to steal the goodwill accumulated by and associated with the Duel Marks and to divert to Defendant potential consumers intended for Duel. 47. Defendants unauthorized use of the Infringing RATTLIN VIBE Mark in

commerce for the same goods offered by Duel is calculated to, and is likely to, deceive, mislead and confuse the relevant consumers as to an affiliation, connection, or association with Duel, or as to the origin, sponsorship, or approval of Defendants goods and/or commercial activities.

Such actions therefore constitute a false designation of origin, false or misleading description of fact, or false or misleading representation which is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association, or as to the origin, sponsorship, or approval of Defendants goods in violation of 43(a) of the Lanham Act, 15 U.S.C. 1125(a). 48. As a proximate result of the acts of Defendant as alleged herein, Duel has suffered

and will continue to suffer great damage to its business, goodwill, reputation, and profits, while Defendant has profited from its wrongdoing. 49. Duel seeks a permanent injunction against the Defendant from using the

Infringing RATTLIN VIBE Mark and any other mark that is likely to be confused with the Duel Marks, together with damages, attorneys fees and costs, and other relief as more fully set forth below. 50. Duel has no adequate remedy at law for the infringement of its Duel Marks and

for the other acts committed by Defendant as alleged herein. Unless the use of the Infringing RATTLIN VIBE Mark is permanently enjoined by the Court pursuant to 15 U.S.C. 1116, Duel will continue to suffer irreparable harm. 51. Duel is entitled to recover from Defendant all damages it has and may later

sustain due to Defendants improper conduct and is further entitled to recover Defendants profits obtained from their improper conduct, in an amount to be proven, pursuant to 15 U.S.C. 1117. 52. The actions of Defendant have been willful and deliberate and amount to

exceptional circumstances, justifying an award of treble damages and attorneys fees to Duel pursuant to 15 U.S.C. 1117.

COUNT IV: FEDERAL UNFAIR COMPETITION UNDER THE LANHAM ACT 43(a), 15 U.S.C. 1125(a) 53. 54. Duel herein incorporates by reference the allegations of paragraphs 1-25. Duels RATTLN VIBE trademark and RATTLN trademark are inherently

distinctive and/or have acquired distinctiveness, and each has become exclusively associated with, and exclusively identifies, Duels business and products. 55. Defendant sourced RATTLN VIBE and RATTLN lures from Duel prior to

adopting use of the Infringing RATTLIN VIBE Mark for its own lures. 56. By reason of Defendants wrongful use of the Infringing RATTLIN VIBE Mark,

consumers have been deceived by Defendant and have not received the goods that they sought, thereby degrading and damaging Duels consumer goodwill. 57. Defendants wrongful adoption and continued use of the Infringing RATTLIN

VIBE Mark is evidence that Defendants use of such marks was intended to create profit from consumer confusion and Duels reputation and goodwill. 58. As a proximate result of the acts of Defendant as alleged herein, Duel has suffered

and will continue to suffer great damage to its business, goodwill, reputation, and profits, while Defendant has profited from its wrongdoing. 59. Duel has no adequate remedy at law for the infringement of its Duel Marks as

alleged herein. Unless the use of the Infringing RATTLIN VIBE Mark, and representations regarding such mark, are permanently enjoined by the Court pursuant to 15 U.S.C. 1116, Duel will continue to suffer irreparable harm. 60. Duel is entitled to recover from Defendant all damages it has and may later

sustain due to Defendants improper conduct and is further entitled to recover Defendants

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profits obtained from their improper conduct, in an amount to be proven, and trebled, pursuant to 15 U.S.C. 1117. 61. The actions of Defendant have been willful and deliberate and amount to

exceptional circumstances, justifying an award of attorneys fees to Duel pursuant to 15 U.S.C. 1117. COUNT V: COMMON LAW TRADEMARK INFRINGEMENT UNDER FLORIDA LAW 62. 63. Duel herein incorporates by reference the allegations of paragraphs 1-25. Duels RATTLN VIBE trademark is distinctive as used by Duel in connection

with Duels lures, as a result of Duels prominence in the marketplace and Duels advertising, promotion and sale of its goods in association with its mark. 64. Duels RATTLN VIBE trademark is inherently distinctive and/or has acquired

distinctiveness, and has become exclusively associated with, and exclusively identifies, Duels lures. By reason of Defendants wrongful and deceitful use of the Infringing RATTLIN VIBE Mark, long after Duels first use of the RATTLN VIBE trademark to identify the same goods as Duels RATTLN VIBE trademark and in the same geographical area, consumers are likely to mistakenly believe that Defendants goods are sponsored or otherwise approved by, or affiliated with Duel. 65. As a consequence of Defendants actions, consumer confusion as to the source

and sponsorship of the goods offered by Defendant is inevitable and the actions of Defendant will continue to falsely suggest a connection with Duel in violation of the common law of the State of Florida, to the damage and detriment of Duel, and the unjust enrichment of Defendant.

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66.

As a proximate result of Defendants unlawful acts as alleged herein, Duel has

suffered and will, without judicial intervention, continue to suffer great damage to its business, goodwill, reputation and profits. 67. Duel has no adequate remedy at law for the infringement of its RATTLN

VIBE trademark as alleged herein. Unless the use of the Infringing RATTLIN VIBE Mark is permanently enjoined by the Court, Duel will continue to suffer irreparable harm. 68. Duel is entitled to recover from Defendant all damages it has and may later

sustain due to Defendants improper conduct and is further entitled to recover Defendants profits obtained from its improper conduct, in an amount to be proven. PRAYER FOR RELIEF WHEREFORE, Plaintiff Duel Co. respectfully prays that the Court find and order the following relief: A. B. C. That Defendant has infringed the `801 Patent; That Defendants infringement of the `801 Patent has been willful; That Defendant and the officers, directors, agents, servants and the employees of

the Defendant, and those persons acting in concert or participation with any of them, are enjoined and restrained from continued infringement, including but not limited to using, making, importing, offering for sale and selling products that infringe, and from inducing the infringement of the `801 Patent, prior to its expiration, including any extensions; D. That Defendant and the officers, directors, agents, servants and the employees of

the Defendant, and those persons acting in concert or participation with any of them deliver to Duel all products that infringe the `801 Patent for destruction at Duels option;

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E.

That Duel be awarded monetary relief adequate to compensate Duel for

Defendants acts of infringement of the `801 Patent within the United States prior to the expiration of the `801 Patent, including any extensions; F. That any monetary relief awarded to Duel regarding the infringement of the `801

Patent by Defendant be increased due to the willful nature of Defendants infringement of the `801 Patent; G. That any monetary relief awarded to Duel regarding the infringement of the `801

Patent by Defendant be awarded with prejudgment interest; H. That the infringement of the `801 Patent by Defendant is exceptional and that

Duel be awarded the attorneys fees, costs, and expenses that it incurs prosecuting this action; I. J. K. L. That Defendant infringed the trademark RATTLN; That Defendant infringed the trademark RATTLN VIBE; The Defendants infringement of the trademark RATTLN has been willful; That Defendant and its officers, agents, employees, representatives, successors,

assigns, attorneys, and all other persons acting for, with, by, through, or under authority from Defendant, and each of them, be preliminarily and permanently enjoined from: (1) using the Infringing Mark, and any confusingly similar variations thereof, alone or in combination with any other letters, words, letter strings, phrases, or designs in commerce or in connection with any business or for any other purpose (including, but not limited to, on web sites, in domain names, and as names for business entities); (2) engaging in any course of conduct likely to cause confusion, deception or mistake, or injure Duel Co.s business reputation or weaken the distinctive quality of Duels Marks;

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M.

That, pursuant to 15 U.S.C. 1117, Defendant be held liable for all damages

suffered by Duel resulting from the Defendants acts of infringement of Duels Marks alleged herein; N. That, pursuant to 15 U.S.C. 1117, Defendant be compelled to account to Duel

for any and all profits derived by it from its illegal acts of infringement of Duels Marks complained of herein; O. That Defendant be ordered pursuant to 15 U.S.C. 1118 to deliver for destruction

all containers, labels, signs, prints, packages, wrappers, receptacles, advertising, promotional material or the like in possession, custody, or control of Defendant bearing a trademark found to infringe Duels Marks; P. That an award of compensatory, consequential, statutory, and punitive damages

for Defendants acts of infringement of Duels RATTLN VIBE trademark alleged herein in an amount to be determined at trial; Q. That the Court declare this to be an exceptional case and award Duel its full costs

and reasonable attorneys fees pursuant to 15 U.S.C. 1117; R. That the Court declare Defendants acts to be willful and award Duel treble its

damages pursuant to 15 U.S.C. 1117 S. An award of interest, costs and attorneys fees incurred by Duel Co. in

prosecuting Defendants acts of infringement of Duels RATTLN VIBE trademark alleged herein; and; T. That the Court grant Duel any other remedy to which it may be entitled as

provided for in 15 U.S.C. 1116 and 1117 or under state law; and

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U.

That Defendant be required to file with the Court and serve on Duel within thirty

(30) days after entry of the injunctive relief requested above, a report in writing under oath setting forth in detail the manner and form in which Defendant has complied with the injunctive relief; V. For such and other further relief that the Court deems just and proper. DEMAND FOR TRIAL BY JURY Plaintiff demands trial by jury for all issues so triable as a matter of law. Dated: January 6, 2014. Respectfully Submitted, By: s/Jorge Espinosa William R. Trueba, Jr. Florida Bar # 117544 wtrueba@etlaw.com Jorge Espinosa Florida Bar # 779032 Jespinosa@etlaw.com Francesca Russo. Florida Bar # 174912 frusso@etlaw.com ESPINOSA | TRUEBA PL 1428 Brickell Ave., Suite 100 Miami, FL 33131 Tel: (305) 854-0900 Fax: (855) 854-0900 (toll free) Attorneys for Plaintiff

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