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General Wire Spring v. Vevor - Complaint ( 289 Request For Trade Dress)
General Wire Spring v. Vevor - Complaint ( 289 Request For Trade Dress)
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COMPLAINT
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AND NOW, comes Plaintiff, General Wire Spring Company, by its attorneys and for its
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COMPLAINT
Case 3:20-cv-00087 Document 1 Filed 01/02/20 Page 2 of 23
1 THE PARTIES
2 1. Plaintiff General Wire Spring Company (“General Wire”) is a Pennsylvania
3 corporation having a place of business at 1101 Thompson Avenue, McKees Rocks, Pennsylvania,
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15136.
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2. Defendant Vevor Corporation (“Vevor”) is a California corporation with an entity
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address and agent for service of process located at 1172 Murphy Avenue, Suite 237, San Jose,
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8 California, 95131.
9 3. Defendant Vevor does business throughout the United States, within the state of
10 California, and within this Judicial District. Defendant Vevor markets and sells goods throughout
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the United States, including California and this Judicial District.
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20 jurisdiction is established as this controversy arises between citizens of different states and
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COMPLAINT
Case 3:20-cv-00087 Document 1 Filed 01/02/20 Page 3 of 23
1 located in Santa Clara County, this case should be assigned to the San Jose division pursuant to
2 Civil L.R. 3-2(e).
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7. Venue is appropriate in this Judicial District pursuant to 28 U.S.C § 1391(b)(1) as
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all defendants are residents of this Judicial District.
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FACTS COMMON TO ALL CLAIMS FOR RELIEF
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9 Pennsylvania that has been manufacturing and marketing various products, including springs, wire
10 forms, and a series of high quality American-made drain cleaning equipment since its founding in
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1930.
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9. Among the products offered by General Wire is a series of tool for cleaning piping,
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tubing, and drains under its Mini Rooter® line.
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15 10. The Mini Rooter® name is protected by United States Trademark Registration
16 Number 4372539 for devices for cleaning drains, namely, machines for cleaning drains. A true
17 and correct copy of the Mini Rooter Trademark certificate is attached hereto as Exhibit A.
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11. Included in the Mini Rooter® line of products are the Mini Rooter XP and Mini
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Rooter Pro (the “Mini Rooter Products”).
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12. The Mini Rooter Products also consist of a distinctive and recognizable trade dress
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in the unique shape, design features, and colors that embody the Mini Rooter brand.
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23 13. The market recognition of the Mini Rooter brand and its corresponding trade dress
24 as quality and reliable goods has come at considerable expense to General Wire over the years.
25 14. For all times relevant hereto, General Wire has manufactured and sold the Mini
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Rooter Products in the trade dress that are the subject of this claim.
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COMPLAINT
Case 3:20-cv-00087 Document 1 Filed 01/02/20 Page 4 of 23
1 15. The design of General Wire’s Mini Rooter Products embodies a singular and
2 inherently distinctive trade dress characterized by a general overall appearance and commercial
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impression created through size, shape, color scheme, and non-functional design features.
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16. The Mini Rooter XP trade dress includes the appearance of the commercial
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embodiment of the Mini Rooter XP product, including the bright orange color, an easy-grip swept-
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7 back folding handle, 8″ semi-pneumatic wheels, a unique Flexicore® Cable in the drum with two
8 distinctly-designed trapezoidal windows on the front and unique steel front hub casting on the
9 front of the drum, a distinctive spout design for the cable feed mechanism, and a frame design
10 featuring a motor roll bar and gusset braces at 45 degree angles located near the wheels.
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Illustration 1: Mini Rooter XP Drain Cleaner
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17. The Mini Rooter Pro trade dress includes the appearance of the commercial
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embodiment of the Mini Rooter Pro product, including the bright orange color, a unique Flexicore®
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Cable in the drum with two distinctly-designed trapezoidal windows on the front and unique steel
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25 front hub casting on the front of the drum, the drum set at a distinctive angle, and a frame design
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4
COMPLAINT
Case 3:20-cv-00087 Document 1 Filed 01/02/20 Page 5 of 23
9 18. The Mini Rooter Products also use a distinctive method of attaching the various
16 21. General Wire has prominently displayed its trade dress to distributors, retailers and
18 22. General Wire has invested substantial time, resources, and money in making and
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selling its Mini Rooter Products in their distinctive trade dress.
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23. As a result of General Wire’s commercial activities as set forth herein, General
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Wire’s trade dress has developed and now has a secondary and distinctive meaning to consumers
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and the professional drain-cleaning industry. Specifically, General Wire’s trade dress has come to
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24 indicate that the Mini Rooter Products come from or originate only with General Wire.
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COMPLAINT
Case 3:20-cv-00087 Document 1 Filed 01/02/20 Page 6 of 23
7 trade dress that consumers are likely to be confused as to the source or origin of the Defendant’s
8 products.
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Illustration 3: Defendant’s Infringing Product Copying Mini Rooter XP
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COMPLAINT
Case 3:20-cv-00087 Document 1 Filed 01/02/20 Page 7 of 23
1 27. Defendant sells models of their Infringing Products in both 75 foot and 100 foot
2 versions which copy the Mini Rooter XP trade dress almost exactly.
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28. Defendant’s copying is particularly apparent in the design of the drum, including
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the size, shape, and placement of the trapezoidal windows, and the casting around the cable feed,
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which are unique to the Mini Rooter Products.
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7 29. Defendant also copied the spout design of the feed mechanism, but, clearly not
8 understanding General Wire’s product, failed to include several springs that would allow the spout
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21 31. Defendant’s copying is again apparent in the angle and design of the drum,
22 including the size, shape, and placement of the trapezoidal windows, and the casting around the
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cable feed, which are unique to the Mini Rooter Products. Defendant’s Infringing Product also
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directly copies the Mini Rooter Pro’s frame design.
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32. Defendant also ripped off General Wire’s method of attaching the cutters to the
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27 cable.
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COMPLAINT
Case 3:20-cv-00087 Document 1 Filed 01/02/20 Page 8 of 23
1 33. Defendant’s blatant copying of General Wire’s trade dress for its Infringing
2 Products not only makes consumer confusion likely, but inevitable.
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34. Defendant’s use of General Wire’s trade dress protected designs constitutes trade
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dress infringement in violation of U.S. trademark law.
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35. General Wire’s Mini Rooter Products compete directly with Defendant’s Infringing
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7 Products.
8 36. Defendant markets its Infringing Products in the same or similar marketing
15 trade dress protected Mini Rooter Product designs on knock-off products made to appear to be
16 General Wire goods or have an affiliation, sponsorship, or other connection with General Wire.
17 39. Defendant has used and continues to use General Wire’s trade dress protected
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designs on knock-off drain cleaners of inferior quality to take sales from General Wire and profit
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from such infringing sale of goods.
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Notice
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40. General Wire wrote to Defendant on July 15, 2019 advising Defendant that General
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23 Wire believed Defendant was infringing on General Wire’s rights and demanding that Defendant
24 cease and desist such infringing conduct. A copy of General Wire’s letter is attached hereto as
25 Exhibit C.
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COMPLAINT
Case 3:20-cv-00087 Document 1 Filed 01/02/20 Page 9 of 23
1 41. Despite attempts to deliver the letter to both Defendant’s business address and
2 registered agent designated with the California Secretary of State, the letter was returned as
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undelivered.
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42. Defendant’s infringing conduct continues through this date.
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COUNT I: Trade Dress Infringement and Unfair Competition
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7 43. The Plaintiff incorporates by reference the allegations in the preceding paragraphs
9 44. The Defendant has made and sold in interstate commerce its Infringing Products in
10 a manner that embodies General Wire’s trade dress.
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45. As a result of the Defendant’s conduct as set forth herein, consumers could be
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confused and induced to purchase the Defendant’s Infringing Products, mistakenly believing them
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to be Mini Rooter Products, thus depriving General Wire of the profits of sale.
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15 46. By engaging in the conduct set forth herein, the Defendant is passing off their
16 Infringing Products as General Wire’s Mini Rooter Products, trading off and exploiting General
23 and deception among consumers as to the affiliation, connection, or association of the Defendant
24 with General Wire and as to the origin, sponsorship, and approval of the Defendant’s Infringing
25 Products and commercial activities by General Wire. Such conduct also interferes with General
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Wire’s right to use its trade dress to identify General Wire as the single source of the Mini Rooter
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COMPLAINT
Case 3:20-cv-00087 Document 1 Filed 01/02/20 Page 10 of 23
1 Products. The Defendant’s conduct as set forth herein also constitutes false designation of origin,
2 unfair competition, and false advertising in violation of Section 43(a) of the Lanham Act, 15 U.S.C.
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§ 1125(a).
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48. The Defendant’s conduct as set forth herein is wrongful, malicious, fraudulent,
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deliberate, willful, and/or intentional.
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7 49. The Defendant’s conduct as set forth herein is wrongful, malicious, fraudulent,
8 deliberate, willful, and/or intentional and has caused and will continue to harm the Plaintiff.
15 with General Wire and as to the origin, sponsorship, and approval of the Defendant’s Infringing
16 Products and commercial activities by General Wire. Such conduct also interferes with General
17 Wire’s right to use its trade dress to identify General Wire as the single source of the Mini Rooter
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Products.
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52. The Defendant’s conduct as set forth herein constitutes trademark infringement in
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violation of California statutory and common law, particularly Cal. Bus. & Prof. Code § 14245.
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53. The Defendant’s conduct as set forth herein is wrongful, malicious, fraudulent,
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24 54. The Defendant’s conduct as set forth herein is wrongful, malicious, fraudulent,
25 deliberate, willful, and/or intentional and has caused and will continue to harm the Plaintiff.
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COMPLAINT
Case 3:20-cv-00087 Document 1 Filed 01/02/20 Page 11 of 23
7 with General Wire and as to the origin, sponsorship, and approval of the Defendant’s Infringing
8 Products and commercial activities by General Wire. Such conduct also interferes with General
9 Wire’s right to use its trade dress to identify General Wire as the single source of the Mini Rooter
10 Products.
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57. The Defendant’s conduct as set forth herein constitutes unfair competition and
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palming off in violation of California statutory and common law, particularly Cal. Bus. & Prof.
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Code § 17000, et. seq.
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15 58. The Defendant’s conduct as set forth herein is wrongful, malicious, fraudulent,
17 59. The Defendant’s conduct as set forth herein is wrongful, malicious, fraudulent,
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deliberate, willful, and/or intentional and has caused and will continue to harm the Plaintiff.
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COUNT IV: Injunctive Relief
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60. The Plaintiff incorporates by reference the allegations in the preceding paragraphs
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as if set forth herein.
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23 61. Pursuant to Section 34 of the Lanham Act, 15 U.S.C. § 1116, courts shall have the
24 power to grant injunctions to prevent the violation of any right protected by Subsection (a) of
25 Section 43 of the Lanham Act, 15 U.S.C. § 1125.
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62. General Wire has demonstrated that Defendant violated its rights in the protected
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COMPLAINT
Case 3:20-cv-00087 Document 1 Filed 01/02/20 Page 12 of 23
8 65. No adequate remedy at law exists to protect General Wire from future harm by
9 Defendant.
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13 1. A judgment declaring that the Defendant has infringed General Wire’s trade dress,
14 has competed unfairly with General Wire, has injured General Wire’s business reputation by the
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unauthorized use of General Wire’s trade dress, and has willfully violated the applicable laws of
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the United States and of the states where the Defendant’s goods have been sold, all to the detriment
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of General Wire;
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19 2. For a judgment against Defendant awarding the Plaintiff damages and lost profits,
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21 (a) All damages sustained by the Plaintiff as a result of the Defendants’ unlawful
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infringement of General Wire’s trade dress, together with interest on such damages
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and that such damages be trebled, pursuant to 35 U.S.C. § 284 and 35 U.S.C. § 289;
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(b) All profits derived by the Defendant from the sale of goods by the direct or indirect
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use of General Wire’s trade dress or colorable imitations thereof, and that such
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COMPLAINT
Case 3:20-cv-00087 Document 1 Filed 01/02/20 Page 13 of 23
1 (c) All damages sustained by Plaintiff on account of trade dress infringement, unfair
2 competition, and any other damages suffered by Plaintiff as a result of the
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Defendant’s conduct as set forth herein, and that such damages be trebled;
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3. For an accounting of all Defendant’s profits from the conduct complained of herein;
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4. For an injunction permanently enjoining Defendant from marketing or selling any
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16 10. For such additional and further relief as this Court may deem just and proper.
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Dated: January 2, 2020 NIXON PEABODY LLP
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By: /s/ Andrew Winetroub
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Andrew H. Winetroub
22 Lauren M. Michals
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COMPLAINT
Case 3:20-cv-00087 Document 1 Filed 01/02/20 Page 14 of 23
Exhibit A
Case 3:20-cv-00087 Document 1 Filed 01/02/20 Page 15 of 23
MINI-ROOTER
Reg. No. 4,372,539 GENERAL WIRE SPRING CO. (PENNSYLVANIA CORPORATION)
1101 THOMPSON AVENUE
Registered July 23, 2013 MCKEES ROCKS, PA 15136
Int. CI.: 7 FOR: DEVICES FOR CLEANING DRAINS, NAMELY, MACHINES FOR CLEANING DRAINS,
IN CLASS 7 (U.S. CLS. 13, 19, 21, 23, 31, 34 AND 35).
PRINCIPAL REGISTER THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY PAR
TICULAR FONT, STYLE, SIZE, OR COLOR.
SEC. 2(F).
• First Filing Deadline: You must file a Declaration of Use (or Excusable Nonuse) between the
5th and 6th years after the registration date. See 15 U.S.C. §§1058, 1141k. If the declaration is
accepted, the registration will continue in force for the remainder of the ten-year period, calculated
from the registration date, unless cancelled by an order of the Commissioner for Trademarks or a
federal court.
• Second Filing Deadline: You must file a Declaration of Use (or Excusable Nonuse) and an
Application for Renewal between the 9th and 10th years after the registration date.*
See 15 U.S.C. §1059.
• You must file a Declaration of Use (or Excusable Nonuse) and an Application for Renewal between
every 9th and lOth-year period, calculated from the registration date.*
The above documents will be accepted as timely if filed within six months after the deadlines listed above
with the payment of an additional fee.
The United States Patent and Trademark Office (USPTO) will NOT send you any future notice or
reminder of these filing requirements.
NOTE: Fees and requirements for maintaining registrations are subject to change. Please check the
USPTO website for further information. With the exception of renewal applications for registered
extensions of protection, you can file the registration maintenance documents referenced above online
at http://www.uspto.gov.
Please note that U.S. Customs & Border Protection (CBP), a bureau of the Department of
Homeland Security, maintains a trademark recordation system for marks registered at the
United States Patent and Trademark Office. Parties who register their marks on the Principal
Register may record these marks with CBP, to assist CBP in its efforts to prevent the
importation of goods that infringe registered marks. The recordation database includes
information regarding all recorded marks, including images of these marks. CBP officers
monitor imports to prevent the importation of goods bearing infringing marks, and can access
the recordation database at each of the 317 ports of entry.
• Copies of the certificate issued by the registering agency (U.S. Patent and Trademark
Office or the Copyright Office) are retained by the right holder, not submitted to
CBP.
• Ability to upload images of the protected work or trademark, thus o"bviating the need
to send samples to CBP.
These companies may use names that resemble the USPTO name, including, for example, one or
more of the terms "United States," "U.S.," "Trademark," "Patent," "Registration," "Office," or
"Agency." Increasingly, some companies attempt to make their solicitations mimic the look of
official government documents rather than the look of a typical commercial or legal solicitation
by emphasizing official government data like the USPTO application serial number, the
registration number, the International Class(es), filing dates, and other information that is
publicly available from USPTO records. Many refer to other government agencies and sections
of the U.S. Code. Most require "fees" to be paid.
Some applicants and registrants have reported paying fees to these private companies,
mistakenly thinking that they were paying required fees to the USPTO. So, be sure to read
trademark-related communications carefully before making a decision about whether to respond.
All official correspondence will be from the "United States Patent and Trademark Office"
in Alexandria, VA, and if by e-mail, specifically from the domain "@uspto.gov."
If you receive a trademark-related solicitation that you believe is deceptive, you may file an on
line consumer complaint with the Federal Trade Commission ("FTC"), at www.FTC.gov.
Although the 1TC does not resolve individual consumer complaints, it may institute, as the
nation's consumer protection agency, investigations and prosecutions based on widespread
complaints about particular companies or business practices. In addition, the USPTO encourages
recipients of deceptive trademark-related solicitations to contact their states' consumer protection
authorities. Many, if not all, states have the authority to issUe investigative subpoenas and file
complaints against companies engaged in deceptive practices directed toward state residents.
For further information about, as well as several examples of, these non-USPTO solicitations,
please visit the page on the www.USPTO.gov website entitled "WARNING: Non-USPTO
Solicitations That May Resemble Official USPTO Communications "
Case 3:20-cv-00087 Document 1 Filed 01/02/20 Page 19 of 23
Exhibit B
Case 3:20-cv-00087 Document 1 Filed 01/02/20 Page 20 of 23
Case 3:20-cv-00087 Document 1 Filed 01/02/20 Page 21 of 23
Exhibit C
Case 3:20-cv-00087 Document 1 Filed 01/02/20 Page 22 of 23
Case 3:20-cv-00087 Document 1 Filed 01/02/20 Page 23 of 23
JS-CAND 44 (Rev. 07/19) Case 3:20-cv-00087 Document 1-1 Filed 01/02/20 Page 1 of 2
CIVIL COVER SHEET
The JS-CAND 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 in its original form by the Judicial Conference of the United States in September 1974, is required for the Clerk of
Court to initiate the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS
GENERAL WIRE SPRING COMPANY, a Pennsylvania corporation VEVOR CORPORATION, a California corporation
(b) County of Residence of First Listed Plaintiff ALLEGHENY COUNTY County of Residence of First Listed Defendant SANTA CLARA
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Nixon Peabody LLP, One Embarcadero Center, 32nd
Floor, San Francisco, CA 94111, Tel: (415) 984-8200
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)
PTF DEF PTF DEF
1 U.S. Government Plaintiff 3 Federal Question Citizen of This State 1 1 Incorporated or Principal Place 4 4
(U.S. Government Not a Party)
of Business In This State
Citizen of Another State 2 2 Incorporated and Principal Place 5 5
2 U.S. Government Defendant 4 Diversity of Business In Another State
(Indicate Citizenship of Parties in Item III)
Citizen or Subject of a 3 3 Foreign Nation 6 6
Foreign Country
VI. CAUSE OF Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
15 U.S.C. § 1051 et seq.; 15 U.S.C. § 1125
ACTION
Brief description of cause:
Trade dress infringement and unfair competition.
VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, Fed. R. Civ. P. JURY DEMAND: Yes No
Authority For Civil Cover Sheet. The JS-CAND 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and
service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved in its original form by the Judicial
Conference of the United States in September 1974, is required for the Clerk of Court to initiate the civil docket sheet. Consequently, a civil cover sheet is
submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I. a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the “defendant” is the location of the tract of land involved.)
c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section “(see attachment).”
II. Jurisdiction. The basis of jurisdiction is set forth under Federal Rule of Civil Procedure 8(a), which requires that jurisdictions be shown in
pleadings. Place an “X” in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
(1) United States plaintiff. Jurisdiction based on 28 USC §§ 1345 and 1348. Suits by agencies and officers of the United States are included here.
(2) United States defendant. When the plaintiff is suing the United States, its officers or agencies, place an “X” in this box.
(3) Federal question. This refers to suits under 28 USC § 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code
takes precedence, and box 1 or 2 should be marked.
(4) Diversity of citizenship. This refers to suits under 28 USC § 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS-CAND 44 is to be completed if diversity of citizenship was indicated above.
Mark this section for each principal party.
IV. Nature of Suit. Place an “X” in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is
sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than
one nature of suit, select the most definitive.
V. Origin. Place an “X” in one of the six boxes.
(1) Original Proceedings. Cases originating in the United States district courts.
(2) Removed from State Court. Proceedings initiated in state courts may be removed to the district courts under Title 28 USC § 1441. When the
petition for removal is granted, check this box.
(3) Remanded from Appellate Court. Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
(4) Reinstated or Reopened. Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
(5) Transferred from Another District. For cases transferred under Title 28 USC § 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
(6) Multidistrict Litigation Transfer. Check this box when a multidistrict case is transferred into the district under authority of Title 28 USC
§ 1407. When this box is checked, do not check (5) above.
(8) Multidistrict Litigation Direct File. Check this box when a multidistrict litigation case is filed in the same district as the Master MDL docket.
Please note that there is no Origin Code 7. Origin Code 7 was used for historical records and is no longer relevant due to changes in statute.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC § 553. Brief Description: Unauthorized reception of cable service.
VII. Requested in Complaint. Class Action. Place an “X” in this box if you are filing a class action under Federal Rule of Civil Procedure 23.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS-CAND 44 is used to identify related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
IX. Divisional Assignment. If the Nature of Suit is under Property Rights or Prisoner Petitions or the matter is a Securities Class Action, leave this
section blank. For all other cases, identify the divisional venue according to Civil Local Rule 3-2: “the county in which a substantial part of the
events or omissions which give rise to the claim occurred or in which a substantial part of the property that is the subject of the action is situated.”
Date and Attorney Signature. Date and sign the civil cover sheet.