Kiser Answer

Case 1:21-cv-00890-SEB-DLP Document 23 Filed 06/16/21 Page 1 of 17 PageID #: 132
United States District Court

Southern District of Indiana
Indianapolis Division
ABI Attachments,Inc.,
Plaintiff,
Case No. l:21-CV-890
V.
Riser Arena Specialists, Inc.,

Robert D. Riser, Individually and as
Trustee of THE RISER FAMILY TRUST,
and James Kiser,
Defendants.
Defendants'Answer to Plaintiff's Complaint
Defendants, Riser Arena Specialists, Inc., Robert D. Riser, The Riser Family
Trust, and James Riser (collectively, "Defendants" or the "Risers") provide the
following Answer and Affirmative Defenses to the Complaint of the Plaintiff, ABI
Attachments, Inc. ("Plaintiff or "ABI"). Except as expressly admitted herein,
Defendants deny each and every allegation of the Complaint, including, but not
limited to, all titles, headings, or un-numbered paragraphs purporting to seek relief
or re-stating or summarizing allegations.
Parties, Jurisdiction, and Venue
1. ABI is an Indiana corporation with its principal place of business in
Mishawka, Indiana.
ANSWER: Defendants are without sufficient knowledge or

information to enable them to form a belief as to the truth of the
allegations contained in this paragraph, and therefore deny those
allegations.
2. KAS is a Texas corporation with its principal place of business in
Gainesville, Texas.
ANSWER: Defendants admit that Riser Arena Specialist, Inc. is a

Texas Corporation, but deny the reminder of paragraph 2.
3. Bob is an individual and a resident of Texas.
ANSWER: Defendants admit the allegations of paragraph 3.
4. The Trust is a trust formed under Texas law and administered in Texas.
5. Jim is an individual and a resident of Texas.
6. Bob, Jim, and the Trust make up all the shareholders of KAS. Bob is
the trustee of the Trust, and Bob and Jim are the principal officers of KAS. In this
Complaint, KAS, Bob, Jim, and the Trust are sometimes collectively referred to as
"the Riser Parties."
7. This action arises under the trademark laws of the United States and
related state law claims, including but not limited to the Lanham Act, Indiana
common law, breach of contract, and the Indiana Trade Secrets Act.
ANSWER: Defendants admit that Plaintiff has asserted claims under

the trademark laws of the United States and related state law claims,
including claims arising under the Lanham Act, Indiana common law,
breach of contract, and the Indiana Trade Secrets Act, but deny
liability under any of those claims. Unless specifically admitted.
Defendants deny the allegations contained in paragraph 7.
8. This Court has jurisdiction over the subject matter of this case under 15
U.S.C. § 1121, 28 U.S.C. §§ 1331 and 1338(b), as well as supplemental jurisdiction
under 28 U.S.C. § 1367.
ANSWER: Defendants admit that this Court has subject matter

jurisdiction of this case. Unless specifically admitted. Defendants deny
the allegations contained in paragraph 8.
9. This Court also has jurisdiction over the subject matter of this case
under 28 U.S.C. § 1332 because there is complete diversity of citizenship between
Plaintiff and Defendants and the amount in controversy exceeds $75,000.
ANSWER: Defendants admit that this Court has subject matter

jurisdiction of this case. Unless specifically admitted. Defendants deny
the allegations contained in paragraph 9.
10. This Court has personal jurisdiction over the Defendants, and venue is
proper in this district, because the Riser Parties consented to this Court's jurisdiction
and venue under Section 20 of the Product Lines Purchase Agreement discussed more
fully below.
11. The Court also has jurisdiction over the Defendants because the Riser
Parties have caused harm in the State of Indiana, because some of the conduct
complained of in this Complaint occurred in the State of Indiana, and because, upon
information and belief, the Riser Parties do business in the State of Indiana.
ANSWER: Defendants admit that they do business in the state of

Indiana, but they deny the remaining allegations made in this
paragraph.
General Allegations
12. On or about September 30, 2016, ABI entered into a Product Lines
Purchase Agreement with the Riser Parties. A true and accurate copy of this
agreement is attached as EXHIBIT 1.
ANSWER: Defendants admit that on or about September 30, 2016,

Defendants and ABI engaged in a transaction involving the execution
of several documents comprising a single agreement, and they further
admit that the Product Lines Purchase Agreement attached to the
complaint was one of the documents comprising the overall agreement.
Unless specifically admitted. Defendants deny the allegations
contained in paragraph 12.
13. Under the Product Lines Purchase Agreement, ABI acquired various
assets and intellectual property defined more fully in the agreement, including the
trademark consisting of and incorporating the term DRAGMASTER® ("the Mark"),
and also including the "Product Lines together with all specifications, shop drawings,
blueprints, records and intellectual property rights relating to the Product Lines."
ANSWER: Defendants admit that, as a part of the September 30,

2016, transaction, the trademark DRAGMASTER was assigned to ABI
under the terms of the Product Lines Purchase Agreement and the
other documents signed as a part of the transaction. Defendants are
without sufficient knowledge or information to enable them to form a
belief as to the truth of the remaining allegations contained in this
paragraph and therefor deny those allegations.
14. The "Product Lines" are defined in the Product Lines Purchase
Agreement to include, among other things, the Riser DragMaster and Riser Edge.

15. Although the Riser Parties retained rights to the name "Riser," all other
intellectual property rights associated with the Product Lines belong to ABI. These
products are now produced by ABI and not by any of the Riser Parties.
ANSWER: Defendants admit that the rights assigned by the Riser

Parties to ABI are as set out in the Products Lines Purchase
Agreement. Defendants further admit that ABI is now producing
products subject to these assigned rights, and Defendants are not.
Unless specifically admitted. Defendants deny the allegations of
paragraph 15.
16. But the Riser Parties have utilized the "specifications, shop drawings,
blueprints, records and intellectual property rights relating to the Product Lines"
they sold to ABI to design, manufacture, and market knockoff products.
ANSWER: Defendants deny the allegations of paragraph 16.
17. For example, the Riser 1000 Series is substantially similar to the ABI
DragMaster in at least 11 respects, as illustrated below:
18. In marketing materials, RAS refers to its products as "redesigned,"
indicating the Riser Parties based it on ABI's intellectual property rather than
developing the product from scratch.
ANSWER: Defendants admit that they have, on occasion, referred to

Riser Arena Specialist Products as having been "redesigned." Unless
specifically admitted, Defendants deny the remaining allegations of
this paragraph 18.
19. In other marketing materials, KAS has promoted its parts sales
business by promoting "replacement parts for new and old drags both" and
specifically targeting those who own "an older Kiser Drag."
ANSWER: Defendants admit that in marketing materials, KAS has

offered replacement parts for new and old drags both. Unless
specifically admitted. Defendant deny the allegations of paragraph 19.
20. All intellectual property relating to anything constituting an "older
Kiser Drag" was sold to ABI under the Product Lines Purchase Agreement.
21. As with the DragMaster, the Kiser 200 Series is substantially similar to
the ABI Edge, as illustrated below:
22. Upon information and belief, the Kiser Parties may be developing other
knockoff products using intellectual property that belongs to ABI.
23. The decision by the Kiser Parties to give their products a generic number
rather than a distinctive name is calculated to trade on ABI's goodwill and unfairly
use the Mark in promoting KAS products as a "redesigns" of ABI products.
24. In fact, KAS has even used the same background music in some of its
promotional videos that ABI uses in some of its promotional videos. Compare
https://voutu.be/CWPio20gzbc(KAS) with https://voutu.be/91Y2X2UvoL4 (ABI).

ANSWER: Defendants deny the allegations contained in paragraph

24.
25. The Mark is the subject of United States Trademark Registration No.
4,044,235 for use in connection with equipment used for grooming and maintaining
equestrian arenas, namely, arena drags.
ANSWER: Defendants admit that the trademark for the mark

DRAGMASTER is the subject of United States Trademark
Registration No. 4,044,235, for use in connection with equipment used
for grooming and maintaining equestrian arenas. Defendants are
without knowledge regarding the remaining allegations of this
paragraph, and therefore deny those allegations.
26. ABI has attained significant goodwill among customers in the United
States and around the world. The Mark and the goodwill of the business associated
with it are of inestimable value to ABI.

allegations contained in paragraph 26, and therefore deny those
allegations.
27. ABI displays the Mark on its products, product literature, and
advertising materials in order to assure customers that they are buying genuine ABI
products and services, which customers have come to recognize as representative of
ABI's superior quality, service, and reliability.

allegations.
28. Through its advertisements and other communications, the Riser
Parties are deceptively and unfairly trading on ABI's Mark.

29. For example, representatives of KAS have referred to certain KAS
products as a redesign of or a replacement for the ABI DragMaster.

allegations.
30. ABI has not licensed the use of the Mark to any of the Riser Parties.
31. The Riser Parties know of ABI's rights to the Mark, and they are
willfully using the Mark to advertise, distribute, and sell competing products that
have no affiliation with ABI.
ANSWER: Defendants admit they are aware of ABI's rights to the

Dragmaster trademark, but deny the remaining allegations contained
in this paragraph.
32. This unauthorized use of the Mark and the associated false and
misleading advertising, which are used in interstate commerce, are likely to cause,
and have caused, confusion that Defendants' products are somehow endorsed by or
affiliated with ABI.
33. The conduct of the Riser Parties has caused and is causing irreparable
damage to ABI's reputation and the goodwill associated with both the Mark and the
other intellectual property acquired under the Product Lines Purchase Agreement.
8
34. Defendants' conduct is willful.
ANSWER: Defendants deny the allegations contained in paragraph

34.
35. ABI has no adequate remedy at law.

allegations.
Count I- Breach of Contract
36. ABI reasserts the allegations of Paragraphs 1-34.
ANSWER: Defendants reassert their answers to the allegations of

paragraphs 1-34.
37. In breach of its obligations under the Product Lines Purchase
Agreement, the Riser Parties have misappropriated intellectual property they sold to
ABI and no longer own, using it to design and promote knockoff products.
38. In further breach, the Riser Parties have sabotaged the goodwill they
sold to ABI by attempting to trade on the "DragMaster" name and to target owners
of"older Riser Drags."
39. ABI has complied with all its obligations under the Product Lines
Purchase Agreement.
9
40. ABI has incurred damages caused by the Kiser Parties' breaches of
contract that are expected to exceed $75,000.
41. In fact, money damages will not adequately remedy ABI for these
breaches because the harm caused by the Kiser Parties is irreparable.
42. Under Section 10(a) of the Product Lines Purchase Agreement, ABI is
also entitled to recover from the Kiser Parties all of ABI's legal fees and other
expenses incurred as a result of the Kiser Parties' breach of contract.
Count II- Misappropriation of Trade Secrets
43. ABI reasserts the allegations of Count I.
ANSWER: Defendants reassert the answers to the allegations of

Count I.
44. The Kiser Parties have misappropriated, by improper means, ABI's
proprietary information, including but not limited to the "specifications, shop
drawings, blueprints, records and intellectual property rights relating to the Product
Lines."
45. The "specifications, shop drawings, blueprints, records and intellectual
property rights relating to the Product Lines" qualify as trade secrets.
10

allegations.
46. The Kiser Parties' misappropriation of trade secrets entitles ABI to
recover lost profits, punitive and treble damages, costs and attorneys' fees, and
injunctive relief.
Count III- Lanham Act Violations
47. ABI reasserts the allegations of Counts I and II.

Counts I and II.
48. Defendants' willful, intentional, unlawful and unauthorized use in
commerce of the Mark constitutes a violation of 15 U.S.C. § 1114(1).
49. ABI is entitled to recover actual and treble damages, an accounting for
Defendants' profits, attorneys' fees, and the costs of this litigation according to 15
U.S.C. § 1117, as well as injunctive relief under 15 U.S.C. § 1116.
Count IV- False Designation / False Advertising
50. ABI reasserts the allegations of Counts I through III.

Counts I through III.
11
51. Defendants' intentional, unlawful, and unauthorized use in commerce
of the Mark, and Defendants' false advertising, as described above, is likely to cause
confusion, mistake or deception as to origin, sponsorship, or approval of Defendants'
products and therefore constitutes false designation of origin and false advertising in
violation of 15 U.S.C. § 1125(a).
52. ABI is entitled to recover actual and treble damages. Defendants'
profits, ABI's attorneys'fees, and the cost of this litigation—all according to 15 U.S.C.
§ 1117, as well as injunctive relief according to 15 U.S.C. § 1116.
Count V- Unfair Competition
53. ABI reasserts the allegations of Counts I through IV.

Counts I through IV.
54. By engaging in the conduct described above. Defendants have knowingly
engaged in the unlawful passing off of their products as being ABI products or
otherwise affiliated with ABI—all in violation of the common law of unfair
competition in the State of Indiana.
12
55. Defendants have also engaged in willful misappropriation of trade
secrets for the sole purpose of causing economic harm to ABI—also in violation of
Indiana's commons law of unfair competition.
56. ABI is entitled to recover actual and punitive damages for Defendants'
unfair competition.
Count VI- Common Law Trademark Misappropriation
57. ABI reasserts the allegations of Counts I through V.

Counts I through V.
58. The conduct of Defendants described above violates and infringes ABI's
common law rights in the Mark in violation of the common law of the State ofIndiana.
59. ABI is entitled to recover actual and punitive damages for Defendants'
infringement.
Count VII- Unjust Enrichment
60. ABI reasserts the allegations of Counts I through VI.

Counts I through VI.
13
61. Under the Product Lines Purchase Agreement and its ancillary
agreements, ABI has paid the Riser Parties more than $1.6 million.
62. These payments have conferred a benefit on the Riser Parties.
63. Due to the Riser Parties' actions, ABI has not received an adequate
benefit in return, unjustly enriching the Riser Parties at ABI's expense.
Affirmative Defenses
Defendants, subject to further investigation and discovery, and expressly
reserving their right to supplement their affirmative and other defenses, allege the
following affirmative and other defenses. By setting forth these defenses. Defendants
do not assume the burden of proving any fact, issue or element of a cause of action
where such burden properly belongs to ABI.
1. Some or all of ABI's claims fail to state a claim for which relief may be
granted.
2. Any use by Defendants of a trademark assigned to ABI has been fair use.
3. ABI is barred from recovery based on its unclean hands, in that the purpose
of the pending litigation is to suppress fair competition by Defendants.
4. ABI is barred from recovery based on its failure to mitigate its damages.
14
5. ABI's request for a jury trial is improper, as ABI agreed to waive its right
to a jury trial with respect to the resolution of any dispute, whether
sounding in contract, tort or otherwise, in connection with the Product
Lines Purchase Agreement, all as set forth in the Promissory Note which is
a part of the transaction at issue.
Prayer for Relief
Wherefore,the Defendants respectfully request the Court to enter judgment
in their favor and against ABI on all claims, award Defendants the costs ofthis action,
including their reasonable attorneys' fees incurred, and grant all other appropriate
relief.
Respectfully submitted,
/s/ Robert G. Devetski

Robert G. Devetski (13957-71)
Barnes & Thornburg LLP
201 South Main Street, Suite 400
South Bend, Indiana 46601
Telephone: (574) 233-1171
Facsimile: (574) 237-1125
rdevetski@btlaw.com
Dwight D. Lueck (14294-49)

E. Sahara Williams (36282-49)
BARNES & Thornburg LLP
11 South Meridian Street
Indianapolis, IN 46204
Telephone:(317) 231-7713
Facsimile: (317) 231-7433
dlueck@btlaw.com
sahara.williams@btlaw.com
15
Attorneys for Defendants, Riser Arena

Specialists, Inc. Robert D. Riser, Individually
and as Trustee of The Riser Family Trust, and
James Riser
16
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on June 2021, I electronically filed the
foregoing with the Clerk of the Court by using the CM/ECF system, which will send
a notice of electronic filing to:
James M. Lewis
Michael J. Hays
Tuesley Hall Konopa LLP
212 E. LaSalle Ave., Suite ICQ
South Bend, IN 46617
ilewis@thklaw.com
mhavs@thklaw.cQm
/s/ Robert G. Devetski

Robert G. Devetski
#20081202
17

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Case 1:21-cv-00890-SEB-DLP Document 23 Filed 06/16/21 Page 1 of 17 PageID #: 132

United States District Court

Riser Arena Specialists, Inc.,

Defendants'Answer to Plaintiff's Complaint

Attachments, Inc. ("Plaintiff or "ABI"). Except as expressly admitted herein,

or re-stating or summarizing allegations.

Parties, Jurisdiction, and Venue

1. ABI is an Indiana corporation with its principal place of business in

ANSWER: Defendants are without sufficient knowledge or

2. KAS is a Texas corporation with its principal place of business in

ANSWER: Defendants admit that Riser Arena Specialist, Inc. is a

3. Bob is an individual and a resident of Texas.

ANSWER: Defendants admit the allegations of paragraph 3.

ANSWER: Defendants admit the allegations of paragraph 4.

5. Jim is an individual and a resident of Texas.

ANSWER: Defendants admit the allegations of paragraph 5.

"the Riser Parties."

ANSWER: Defendants admit the allegations of paragraph 6.

ANSWER: Defendants admit that Plaintiff has asserted claims under

U.S.C. § 1121, 28 U.S.C. §§ 1331 and 1338(b), as well as supplemental jurisdiction

under 28 U.S.C. § 1367.

ANSWER: Defendants admit that this Court has subject matter

under 28 U.S.C. § 1332 because there is complete diversity of citizenship between

Plaintiff and Defendants and the amount in controversy exceeds $75,000.

ANSWER: Defendants admit that this Court has subject matter

ANSWER: Defendants admit the allegations of paragraph 10.

ANSWER: Defendants admit that they do business in the state of

agreement is attached as EXHIBIT 1.

ANSWER: Defendants admit that on or about September 30, 2016,

trademark consisting of and incorporating the term DRAGMASTER® ("the Mark"),

ANSWER: Defendants admit that, as a part of the September 30,

ANSWER: Defendants admit the allegations of paragraph 14.

ANSWER: Defendants admit that the rights assigned by the Riser

they sold to ABI to design, manufacture, and market knockoff products.

ANSWER: Defendants deny the allegations of paragraph 16.

DragMaster in at least 11 respects, as illustrated below:

ANSWER: Defendants deny the allegations of paragraph 17.

18. In marketing materials, RAS refers to its products as "redesigned,"

developing the product from scratch.

ANSWER: Defendants admit that they have, on occasion, referred to

specifically targeting those who own "an older Kiser Drag."

ANSWER: Defendants admit that in marketing materials, KAS has

20. All intellectual property relating to anything constituting an "older

ANSWER: Defendants deny the allegations of paragraph 20.

the ABI Edge, as illustrated below:

ANSWER: Defendants deny the allegations of paragraph 21.

knockoff products using intellectual property that belongs to ABI.

ANSWER: Defendants deny the allegations of paragraph 22.

use the Mark in promoting KAS products as a "redesigns" of ABI products.

ANSWER: Defendants deny the allegations of paragraph 23.

https://voutu.be/CWPio20gzbc(KAS) with https://voutu.be/91Y2X2UvoL4 (ABI).

ANSWER: Defendants deny the allegations contained in paragraph

equestrian arenas, namely, arena drags.

ANSWER: Defendants admit that the trademark for the mark

with it are of inestimable value to ABI.

ANSWER: Defendants are without sufficient knowledge or

products and services, which customers have come to recognize as representative of

ABI's superior quality, service, and reliability.

ANSWER: Defendants are without sufficient knowledge or

28. Through its advertisements and other communications, the Riser

Parties are deceptively and unfairly trading on ABI's Mark.

ANSWER: Defendants deny the allegations of paragraph 20.

29. For example, representatives of KAS have referred to certain KAS