UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

______________________________________________________________________________

Gauthier Biomedical, Inc.,

Plaintiff,

v. Case No. ____________________

Bradshaw Medical, Inc.,

Defendant.
______________________________________________________________________________

COMPLAINT
______________________________________________________________________________

Plaintiff, Gauthier Biomedical, Inc. (“Gauthier”), for its complaint against

defendant Bradshaw Medical, Inc. (“Bradshaw”), states as follows:

I. Nature of Action

1. This is a civil action for trademark infringement and unfair

competition under 15 U.S.C. § 1051, et seq., and common law, and patent

infringement under 35 U.S.C. § 271.

II. Jurisdiction and Venue

2. This court has original jurisdiction under 28 U.S.C. §§ 1331 and

1338.

3. Venue is proper in this district under 28 U.S.C. §§ 1391.

III. Parties

4. Plaintiff Gauthier is a Wisconsin corporation, with a primary place of

business at 2221 Washington St., Grafton, Wisconsin.

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 5. Defendant Bradshaw is a Wisconsin corporation with a primary place

of business in Kenosha, Wisconsin.

6. Gauthier was established in 2000 and is in the business of designing,

manufacturing, and selling spinal and orthopedic surgical instruments.

7. In 2009, Gauthier created a handle design for orthopedic surgical

instruments identified as the G10 handle, comprised of a wave like pattern in

two different colors. The G10 design is depicted in the photo below.

8. The G10 handle design was intended to give Gauthier’s tool handles a

distinctive look and, in part, to provide an identifier of the source of Gauthier’s

handles whether sold directly to the ultimate consumer or private labelled for

resale by an OEM and also bearing the OEM’s trademark.

9. Since the introduction of the G10 handle design, Gauthier has spent a

substantial amount on promotions and advertising that highlight the

distinctive G10 handle design.

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 10. Since the introduction of the G10 handle design, sales of the G10

handles have achieved significant growth.

11. As a result of the distinctive design of the G10 handle and

Gauthier’s advertising and promotional efforts, the G10 has achieved

secondary meaning in the minds of consumers of orthopedic instruments and

is recognized as an indication of the source of its handles.

12. In April 2017, Gauthier filed an application with the United States

Patent and Trademark Office to register the distinctive G10 handle design as a

trademark on the principal register. The USPTO issued Registration No.

5,478,595 on May 29, 2018 (attached as Exhibit A), and it is, pursuant to

statute, prima facie evidence of the validity of the registered mark and its

registration, of Gauthier’s ownership of the mark, and of Gauthier’s exclusive

right to use the registered mark in commerce on or in connection with the

goods identified in the registration, namely orthopedic instruments.

13. In addition to the trademark

registration, Gauthier is the owner of U.S.

Patent No. D655,022 (the ’022 Patent), entitled

Tool Handle, which claims the ornamental

design for a tool handle. One view of the

claimed tool handle design is shown to the

right.

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 14. Bradshaw, like Gauthier, is in the business of designing,

manufacturing, and selling orthopedic surgical instruments, including tool

handles that are sold to OEM’s for resale.

15. Sometime in 2012, Bradshaw produced a two tone tool handle

(depicted below) for an OEM that had significant differences from the Gauthier

G10 handle.

16. In around 2015, approximately six years after Gauthier introduced

its G10 tool handles, Bradshaw introduced a new handle design it has

identified with the “Stealth” name that is nearly identical in appearance to the

Gauthier G10 tool handle. The photo below depicts the Bradshaw Stealth

handle (with the FloSpine logo) next to a Gauthier G10 handle.

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 17. Bradshaw’s Stealth handle has enabled it to take OEM business

away from Gauthier by providing what is essentially a copy of the G10 handle,

allowing OEMs to substitute the Bradshaw Stealth handle for the Gauthier G10

handle with little to no disruption to the end user.

18. The introduction of Bradshaw’s Stealth tool handle has caused

actual confusion with Gauthier’s G10 handle among relevant consumers.

19. The continued marketing and sale of the Stealth handle by

Bradshaw is likely to continue to cause confusion among relevant consumers.

COUNT I

Trademark Infringement Under 15 U.S.C. § 1114

20. Plaintiff repeats and realleges the allegations set forth in the

preceding paragraphs of this Complaint.

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 21. The ongoing marketing and sale of the Stealth handle by

Bradshaw is likely to cause confusion, or to cause mistake with respect to

Gauthier’s registered trademark.

22. Gauthier has been injured as a result of Bradshaw’s infringing

conduct.

23. Gauthier has suffered damages as a result of Bradshaw’s violation

of 15 U.S.C. § 1114.

24. Bradshaw’s infringing conduct has caused irreparable and

immediate injury to Gauthier.

COUNT II

False Designations and False Descriptions Under

Section 43(a) of the Lanham Act
25. Gauthier repeats and realleges the allegations set forth in

Paragraphs 1 through 24 of this Complaint.

26. Gauthier first adopted and used the G10 handle design as a means

of establishing good will and reputation and to identify the goods sold by

Gauthier to distinguish them from similar goods offered by others.

27. Through Gauthier’s sales, marketing, and promotion of the G10

handle, the wave like pattern of the G10 handle achieved secondary meaning

among the relevant consumers prior to Bradshaw’s introduction of the Stealth

handle and continued to be recognized as an identification of the source of the

G10 handles.

28. Bradshaw’s sales of the nearly identical Stealth handle has

caused, and is likely to continue to cause, confusion, or to cause mistake, or

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to deceive as to the affiliation, connection or association of Bradshaw’s Stealth

handles with Gauthier, or as to the origin, sponsorship, or approval of

Bradshaw’s goods.

29. Gauthier has been injured as a result of Bradshaw’s infringing

conduct.

30. Gauthier has suffered damages as a result of Bradshaw’s violation

of 15 U.S.C. § 1125(a).

31. Bradshaw’s infringing conduct has caused irreparable and

immediate injury to Gauthier.

COUNT III

Common Law Infringement

32. Gauthier repeats and realleges the allegations set forth in

Paragraphs 1 through 31 of this Complaint.

33. As a consequence of Bradshaw’s actions in the manufacture,

marketing and sale of its Stealth handle, confusion of source or as to the

sponsorship of Bradshaw’s goods or Gauthier’s goods is occurring and is

likely to continue.

34. Bradshaw’s actions are causing damage to Gauthier.

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 COUNT IV

Design Patent Infringement

35. Gauthier repeats and realleges the allegations set forth in

Paragraphs 1 through 31 of this Complaint.

36. Bradshaw’s manufacture and sale of its Stealth handle infringes

the ’022 Patent.

37. Gauthier has been damaged by Bradshaw’s infringement of the

’022 Patent and will continue to suffer irreparable harm unless Bradshaw is

enjoined from further infringement.

Prayer for Relief

WHEREFORE, Gauthier requests that judgment be entered in its

favor and against Bradshaw as follows:

a. Preliminarily and permanently enjoining Bradshaw’s

manufacture and sale of its Stealth handle;

b. Awarding Gauthier its damages, Bradshaw’s profits, and

Gauthier’s attorneys' fees and costs, and that this award of damages and

profits be tripled pursuant to 15 U.S.C. § 1117;

c. Awarding Gauthier any additional damages, profits or

attorneys’ fees available on Count III of this Complaint;

d. Awarding Gauthier Bradshaw’s profits, pursuant to 35

U.S.C. § 289 for Bradshaw’s infringement of the ’022 Patent; and

e. Ordering or awarding Gauthier any other such relief the

Court deems just and proper.

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 JURY DEMAND

Plaintiff hereby demands a jury trial of all issues of fact alleged and not

admitted by defendants.

December 20, 2018 /s/ John P. Fredrickson_________

John P. Fredrickson
Wis. State Bar No. 1009063
Boyle Fredrickson, S.C.
840 N. Plankinton Avenue
Milwaukee, WI 53203
(414) 225-9755 (Office)
jpf@boylefred.com
ATTORNEY FOR GAUTHIER BIOMEDICAL, INC.

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