Case 2:16-cv-00440-EJF Document 2 Filed 05/25/16 Page 1 of 8

Phillip J. Russell (10445)

Justin L. James (15167)
HATCH, JAMES & DODGE, P.C.
10 West Broadway, Suite 400
Salt Lake City, UT 84101
Telephone: (801) 363-6363
Facsimile: (801) 363-6666
prussell@hjdlaw.com
jjames@hjdlaw.com
Attorneys for Plaintiff Beer Barrel, LLC
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF UTAH, CENTRAL DIVISION
THE BEER BARREL, LLC,
a Utah limited liability company
Plaintiff,
COMPLAINT
v.
Case No. 2:16-cv-00440-EJF
DEEP WOOD BREW PRODUCTS, LLC,
a Michigan limited liability company;
MANCAN UNIVERSE, LLC, a Michigan
limited liability company; MANCAN
UNIVERSE, INC., a Colorado corporation.

Magistrate Judge: Evelyn J. Furse

JURY DEMAND

Defendants.
Plaintiff The Beer Barrel, LLC, (Beer Barrel) hereby complains and alleges against
defendants Deep Wood Brew Products, LLC (Deep Wood), ManCan Universe, LLC
(ManCan LLC), and ManCan Universe, Inc. (ManCan Inc.) (collectively the Defendants)
as follows:

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PARTIES
1.

Plaintiff Beer Barrel is a Utah limited liability company with its principal place of

business located in American Fork, Utah.

2.

Upon information and belief, Defendant Deep Wood is a Michigan limited

liability company with its principal place of business located at 1716 Deepwood Circle
Rochester Hills, MI 48307.
3.

Upon information and belief, Defendant ManCan LLC is a Michigan limited

liability company with its principal place of business at 9200 E. Mineral Ave., Ste. 185,
Centennial, Colorado.
4.

Upon information and belief, Defendant ManCan Inc. is a Colorado corporation

with its principal place of business located at 9200 E. Mineral Ave., Ste. 185, Centennial,
Colorado.
JURISDICTION AND VENUE
5.

Jurisdiction is proper pursuant to the Federal Declaratory Judgment Act, 28

U.S.C. 2201 and 2202. Because certain claims arise under the Patent Code, 35 U.S.C. 1 et
seq., this Court also has jurisdiction pursuant to 28 U.S.C. 1331 and 1338(a). This Court also
has jurisdiction pursuant to 28 U.S.C. 1367 and 28 U.S.C. 1332.
6.

This Court has personal jurisdiction over the Defendants because the Defendants

regularly conduct business in the district and have committed acts in this judicial district which
give rise to this action. On information and belief, the Defendants sell, offer for sale, and have
sold products to residents of this jurisdiction. As explained in more detail below, Defendants

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have purposefully directed actions aimed at harming the Plaintiff in an attempt to deprive
Plaintiff of its interstate activities.
7.

Venue in this district is proper pursuant to 28 U.S.C. 1391.

GENERAL ALLEGATIONS

8.

Beer Barrel sells products from its American Fork, Utah location. The Beer

Barrels primary products are a 128 oz. growler and a 64 oz. growler (Beer Barrels Products).
Beer Barrels Products are sold for the purpose of storing and serving beer.
9.

Beer Barrels Products are manufactured by Sino Dragon, a Chinese manufacturer

located in Tianjin, China.

10.

Defendants are a competitor of the Beer Barrel and sell similar products.

11.

Defendants originally sold their products under the product name Deep Wood

Brew Products, but more recently have rebranded and are now selling their products under the
ManCan brand name.
12.

The Defendants ManCan products are manufactured by Sino Dragon, the same

Chinese manufacturer that makes the Beer Barrels Products.

13.

Upon information and belief, Sino Dragon supplied the Defendants with the

design of their products. Indeed, Sino Dragon has patented its design in China, under Chinese
Patent Application Number 2013305314567.
14.

On or about January 21, 2016, Chris Mueller, the CEO for Deep Wood and

ManCan LLC sent the Beer Barrel a form letter on behalf of Deep Wood and ManCan LLC,
wherein Mr. Mueller claimed to have common law copyrights, design patents and pending utility
patent applications for his products. However, the only actual patent Mr. Mueller mentions is
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Design Patent D735,436 (Design Patent D735,436).

Mr. Mueller concludes his letter

requesting that the Beer Barrel cease selling its products. [Mr. Muellers Letter is attached
hereto as Exhibit 1].
15.

On that same day, Mr. Mueller also forwarded a letter from BrooksGroupDeep

Woods attorneys. Upon information and belief, this letter was originally drafted for another
competitor, as it is dated July 24, 2015 and is addressed to To Whom It May Concern.
[(Brooks Group Letter) attached as Exhibit 2]. In the Brooks Group Letter, references are
made to Deep Woods attorneys who have extensive experience in both prosecution and
litigation of intellectual property matters. [Id.].
16.

Upon information and belief Defendants have attempted to eliminate their

competition by utilizing the form cease and desist letters to intimidate competitors and force
them to either cease transacting businessi.e. stop competingor pay Defendants a royalty fee.
17.

On or about February 1, 2016, the Beer Barrels attorney sent Mr. Mueller a

response indicating that the Beer Barrel had not infringed upon any of Defendants alleged
patents and did not intend to.
18.

Two week later, Mr. Kenneth F. Brooks, from the Brooks Group responded on

behalf of ManCanMr. Brooks did not specify ManCan LLC or ManCan Inc. [Brooks Group
Response Letter attached as Exhibit 3]. Again in that letter the only patent mentioned is Design
Patent D735,436. The letter also identifies Design Patent Application 29/471,710 as a recently
Allowed U.S. Design Patent.

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19.

On March 29, 2016, nearly 6 weeks after Deep Woods attorneys claimed that the

application was allowed, the U.S. Patent and Trademark Office granted a patent for Design
Patent Application 29/471,710 under the Patent Number D752,839.
20.

The only patents the Defendants allege or have alleged the Beer Barrel infringes

upon are Design Patent Nos. D752,839 and D735,436 (collectively Defendants Patents).
21.

After asserting that Beer Barrel infringes Defendants Patents, the Response Letter

demands that the Beer Barrel cease all sales of the mini-keg growler in question, enter into a
Licensing Agreement with the ManCan, or face statutory damages per occurrence of patent
infringement, including a possible damages enhance[ment] by as much as three times.
22.

A licensing arrangement was never reached, and the ManCan did not contact the

Beer Barrel for three months. Then, on or about May 14, 2016, the Defendants contacted
Amazon.comthe primary vendor for the Beer Barrels productsand alleged to Amazon.com
that the Beer Barrel was infringing on Defendants patents. In accordance with Amazons
policy, the allegation was not investigated, but instead Amazon immediately ceased selling the
Beer Barrels products, pending a resolution between the Beer Barrel and the Defendants.
23.

As a result of the Defendants representations to Amazon.com, Amazon.com has

ceased selling the Beer Barrels products and the Beer Barrels sales have slowed to a near halt
causing significant damage to the Beer Barrel.
FIRST CAUSE OF ACTION
(Declaratory Judgment of Non-infringement and Invalidity)
24.

The Beer Barrel incorporates by reference all preceding allegations of this

Complaint as though fully set forth herein.

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25.

The Beer Barrels Products do not and have not infringed on any valid and

enforceable claim of Defendants Patents, directly or indirectly, by inducement or contributory

infringement, literally or under the doctrine of equivalents.
26.

One or more claims of Defendants Patents are invalid for failure to comply with

one or more requirements for patentability under the patent laws of the United States, including,
but not limited to, 35 U.S.C. 101, 102, 103, 112, 113, 115 and/or 116.
27.

As a result of the Defendants allegations of infringement against the Beer Barrel,

threats of litigation, and representations to Amazon.com that the Beer Barrels products infringe
Defendants Patents, an actual controversy exists as to infringement of Defendants Patents.
28.

The Beer Barrel is entitled to a declaratory judgment that the Beer Barrel is not

directly, indirectly, contributorily infringe the Defendants Patents; that the Beer Barrel has not
actively induced others to infringe any claim of the Defendants Patents; and that one or more
claims of Defendants Patents are invalid for failure to comply with one or more requirements for
patentability under that patent laws of the United States.
29.

Defendants conduct in this action is exceptional, and Defendants are entitled to

their attorneys fees and costs pursuant to 35 U.S.C. 285 and 28 U.S.C. 1927.
SECOND CAUSE OF ACTION
(Tortious Interference with Current and Prospective Economic Relations)
30.

The Beer Barrel incorporates by reference all preceding allegations of this

Complaint as though fully set forth herein.

31.

In an effort to interfere with the Beer Barrels economic relations, the Defendants

contacted Amazon.com to allege that the Beer Barrel was infringing on Defendants Patents.

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32.

Upon information and belief, Defendants knew and intended that by making such

an allegation, Amazon.com would immediately remove the Beer Barrels listing from its website
and prohibit the Beer Barrel from selling its products until the allegation of infringement was
resolved.
33.

The Defendants allegation of patent infringement by the Beer Barrel to

Amazon.com was knowingly false, was an improper means, and was done with the intent to
interfere with the Beer Barrels current and prospective economic relations.
34.

As a direct and proximate result of the Defendants actions, the Beer Barrel has

been damaged in an amount to be determined at trial.

PRAYER FOR RELIEF
WHEREFORE, The Beer Barrel prays for judgment and relief against the Defendants as
follows:
A.

For the Court to find and enter a declaratory judgment that the Beer Barrel has not

infringed in any way any of Defendants Patents;

B.

For the Court to find and enter a declaratory judgment that the Defendants

Patents are invalid and unenforceable;

C.

For the Court to find and enter and order that Defendants conduct amounts to an

exceptional case and award the Beer Barrel its costs and attorneys fees under 35 U.S.C. 285
and 28 U.S.C. 1927;
D.

For actual, consequential, and punitive damages caused by the Defendants

intentional and tortious interference with the Beer Barrels economic relations
E.

For any other such relief as the Court deems just and equitable.
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DATED this 25th day of May, 2016

HATCH, JAMES, & DODGE P.C.
/s/ Justin L. James
Phillip J. Russell
Justin L. James
Attorneys for Plaintiff Beer Barrel

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EXHIBIT 1

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Beer Barrel, Zach Frantz

647 N 200 W
America Fort, UT 84003
858-414-5021

via email: [zachfrantz@gmail.com]

[1/21/15]
Re:

Notice

Dear Zach Frantz,

On behalf of Deep Wood Brew Products, LLC / MANCAN UNIVERSE LLC, it is
my understanding that you are selling mini-growlers in the United States.
Please be advised that I have common law copyright in the works of art of a minigrowler and has also filed a Federal Registration for a copyright case #1107758917(copy attached). Please also be advised that I have filed a utility Patent
Application Serial No. 14/075,563 (copy attached) as well as utility Patent Application
Serial No. 14/465,965. I have also filed Design Applications Serial No. 29/471,705
(copy attached) which was granted patent number D 735436; and Serial No. 29/471,710
(copy attached).
At least in view of my common law copyright I request that you do not sell a
micro-keg, mini-growler, or stainless steel keg style growler as shown in my federal
copyright application, design patent & applications, or utility patent application. This
notice provides additional protection to myself as of the date of this notice once
intellectual property rights are granted by the United States Patent and Trademark
Office.
At this point in time, I would like to resolve this matter amicably. If you have any
questions contact me.

Chris Mueller
CEO, ManCan Universe

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EXHIBIT 2

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EXHIBIT 3

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February 12, 2016

Justin L James
Hatch, James, & Dodge,
10 West Broadway, Suite 400
Salt Lake City, Utah 84101
(801) 363-6363

via email: jjames@hjdlaw.com

Dear Mr. James:

On behalf of Chris Mueller and ManCan, we appreciate your timely response.
With respect to ManCans common law copyright; you suggested that The common law
copyright is terminated by publication of the work by the proprietor of the copyright. We
respectfully disagree. That information was correct approximately 40 years ago, prior to 1976.
The distinction between unpublished and published works no longer exists according to the
Copyright Act of 1976. In 1976, the Copyright Act was enacted (effective date January 1st, 1978)
and automatically applies to all original works of authorship fixed in any tangible medium of
expression. 17 U.S.C. 102(a). The design of the mini-keg growler in question is a fixed work
as described in the relevant statute in that it is a permanent and stable record of the expression.
Copyright in a work created on or after January 1, 1978 subsists from its creation and endures for
a term consisting of the life of the author and 70 years after the author's death. 17 U.S.C.
302(a). Therefore, at least under common law copyright, ManCan requests that your client
cease all sales of the mini-keg growler in question.
With respect to Issued Design Patent D735,436 and recently Allowed U.S. Design Patent
Application number 29/471710, you suggest that this is a patent for your ManCan 64, a product
that Mr. Frantz does not sell. We respectfully disagree. A U.S. design patent is a granted to
provide legal protection regarding the ornamental design of an item, and not the product itself.
The ManCan 64 and ManCan 128 are, ornamentally speaking, identical. Aside from being
functionally different in terms of volume and capacity, the two products are ornamentally
identical and both fall within the scope of Issued Design Patent D735,436 and recently Issued
U.S. Design Patent Application number 29/471710. Therefore, at least under the scope of the

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patents mentioned, ManCan requests that your client cease all sales of the mini-keg growler in
question.
Regarding pending Utility Patent Applications 14/075,563, 61/972,845, and 14/465,965, you are
correct that there can be no infringement on a pending patent application. ManCan provided
notice of said pending applications in order to make The Beer Barrel aware that ManCan intends
to protect and grow its intellectual property portfolio.
In the alternative to ceasing all sales of the mini-keg growler in question, our client is willing to
offer a Licensing Agreement which is included with this letter. In the event that a Licensing
Agreement cannot be reached, be aware that statutory damages per occurrence of patent
infringement may include lost profits of sales, lost profits from diverted sales, or at least a
reasonable royalty award from the time when The Beer Barrel began selling the mini-keg
growlers of when The Beer Barrel was notified. Also be aware that damages in the form of lost
profits or royalties may be enhanced by as much as three times according to the courts discretion
where willful infringement is found.
ManCan would prefer to solve this matter amicably. Included with this letter is a License
Agreement offered by ManCan to The Beer Barrel. If you have any questions please do not
hesitate to contact us.
Regards,
Kenneth F. Brooks
BrooksGroup
48685 Hayes Road
Shelby Township, Michigan 48315
(586) 596-9600