IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION Bowling Green DOWN-N-DIRTY

OUTDOORS, INC., a Kentucky Corporation based in Logan County, Kentucky, PLAINTIFF, v. EBSCO INDUSTRIES, INC. d/b/a Knight & Hale Game Calls Serve: Registered Agent National Registered Agents, Inc. 306 W. Main Street, Suite 512 Frankfort, KY 40601 PLASTICS RESEARCH AND DEVELOPMENT CORP. d/b/a Knight & Hale Game Calls Serve: Corporation Service Company d/b/a CSC-Lawyers 421 West Main Street Frankfort, KY 40601 HAROLD KNIGHT Serve: Harold Knight 561 Sam Downs Road Cadiz, KY 42211 DAVID HALE, Serve: David Hale 501 Deer Run Road Cadiz, KY 42211 JAMES STRELEC Serve: James Strelec 488 Canton Blue Springs Road Cadiz, KY 42211 DEFENDANTS. ) ) ) ) ) ELECTRONICALLY FILED ) 1:13CV-34-M ) Civil Action No. _______________ ) ) ) ) JURY TRIAL DEMANDED ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

COMPLAINT FOR PATENT INFRINGEMENT Plaintiff Down-N-Dirty Outdoors, Inc. (Down-N-Dirty Outdoors), by its undersigned attorneys, for its Complaint against Defendants Ebsco Industries, Inc., Plastics Research and Development Corp., Harold Knight, David Hale, and James Strelec (Defendants) alleges the following: NATURE OF THE ACTION 1. This is a civil action for patent infringement arising under the laws of the United

States, Title 35 of the United States Code. THE PARTIES 2. Plaintiff Down-N-Dirty Outdoors is a corporation organized and existing under

the laws of the Commonwealth of Kentucky with an address at 87 White Lane, Lewisburg, KY 42256. 3. Upon information and belief, Defendant EBSCO Industries, Inc. (EBSCO) is a

Delaware corporation with a principal place of business at 5724 Highway 280 East, Birmingham, Alabama 35242. 4. Upon information and belief, Defendant EBSCO conducts business under the

brand names Pradco Outdoor Brands and Knight & Hale Game Calls. 5. Upon information and belief, Defendant Plastics Research and Development

Corp. (PRADCO) is an Arkansas corporation with places of business at 3601 Jenny Lind Road, Fort Smith, AR 72901-7301 and 5724 Highway 280 East, Birmingham, Alabama 35242. 6. Upon information and belief, Defendant PRADCO conducts business under the

brand names Pradco Outdoor Brands and Knight & Hale Game Calls and is affiliated with and/or owned by EBSCO.

7.

Upon information and belief, Defendant Harold Knight is a resident of the State

of Kentucky, with a residence at 561 Sam Downs Road, Cadiz, KY 42211 (Trigg Co.). 8. Upon information and belief, Defendant David Hale is a resident of the State of

Kentucky, with a residence at 501 Deer Run Rd., Cadiz, KY 42211 (Trigg Co.). 9. Upon information and belief, Defendant James Strelec is a resident of the State of

Kentucky, with a residence at 488 Canton Blue Springs Rd., Cadiz, Kentucky 42211 (Trigg Co.). 10. Down-N-Dirty Outdoors and Defendants are direct competitors in the business of

making, marketing, and selling game calls including turkey gobble calls. JURISDICTION AND VENUE 11. This Court has subject matter jurisdiction under 28 U.S.C. 1331 and 1338, in

that this action arises under federal patent statutes, 35 U.S.C. 1 et seq. 12. This Court has personal jurisdiction over Defendants EBSCO and PRADCO

because they knowingly ship products into this District, have sold and continue to sell and distribute products to retailers in this District, and actively advertise and promote products for sale in this District. 13. because they This Court has personal jurisdiction over Defendants EBSCO and PRADCO operate and maintain an interactive, nationwide retail website at

http://www.knightandhale.com (last accessed March 22, 2013), the website is accessible from within this District, and they routinely sell and deliver products to residents located in this District via the retail website. 14. This Court has personal jurisdiction over Defendants EBSCO and PRADCO

because they own and operate a division called Commonwealth Productions located in Benton, KY. Via Commonwealth Productions, EBSCO and PRADCO purposely avail themselves of the

laws and benefits of Kentucky and of this District by recording, producing, airing and selling videos in this District including a television series called Knight & Hales Ultimate Hunting featuring co-Defendants Harold Knight and David Hale and including footage filmed in the state of Kentucky and in this District. 15. This Court has personal jurisdiction over Defendants EBSCO and PRADCO

because agents, employees, and/or officers of EBSCO and PRADCO routinely travel to Kentucky and to this District and purposely avail themselves of the laws and benefits of Kentucky and of this District by attending trade shows in Kentucky and in this District, by establishing and maintaining physical residences in Kentucky and in this District, and by hunting and killing wild game in Kentucky and in this District. 16. This Court has personal jurisdiction over Defendants EBSCO and PRADCO at

least because they maintain registered agents in Kentucky. 17. This Court has personal jurisdiction over Defendants EBSCO and PRADCO

because they have committed and continue to commit acts of infringement within this District, including selling infringing products to consumers in this District and offering to sell infringing products to consumers in this District. 18. This Court has personal jurisdiction over Defendants EBSCO and PRADCO

because they have sold and shipped, and continue to sell and ship, products that infringe the 452 Patent to customers within this District via their interactive retail website located at http://www.knightandhale.com. 19. This Court has personal jurisdiction over Defendants EBSCO and PRADCO

because they have previously sold and offered to sell, and continue to sell and offer to sell, products that infringe the 452 Patent to residents in this District via physical retail storefronts

located in this District. Defendants EBSCO and PRADCO also have shipped and continue to ship products that infringe the 452 Patent into this District. 20. This Court has specific personal jurisdiction over Defendants EBSCO and

PRADCO because they have performed acts, and continue to perform acts, in this District that constitute active inducement to infringe the 452 Patent, including publishing and distributing advertisements, catalogs, and promotional materials that encourage infringement by others and providing instructions to users of infringing products in this District. 21. This Court has personal jurisdiction over Defendants EBSCO and PRADCO

because they have used and continue to use products in this District that infringe the 452 Patent. 22. Upon information and belief, this Court has personal jurisdiction over Defendant

Harold Knight at least because he is a resident of Trigg County, Kentucky. 23. Upon information and belief, this Court has personal jurisdiction over Defendant

David Hale at least because he is a resident of Trigg County, Kentucky. 24. Upon information and belief, this Court has personal jurisdiction over Defendant

James Strelec at least because he is a resident of Trigg County, Kentucky. 25. Venue is proper in this District pursuant to 28 U.S.C. 1391 and 1400. FACTUAL BACKGROUND 26. The allegations set forth in the foregoing paragraphs 1 through 25 are hereby re-

alleged and incorporated herein by reference. 27. Plaintiff Down-N-Dirty Outdoors invented a new and inventive turkey gobble call

at least as early as 2010.

28.

Plaintiff Down-N-Dirty Outdoors filed its first U.S. nonprovisional utility patent

application with the United States Patent and Trademark Office (USPTO) for its invention of a new turkey gobble call on May 17, 2011. 29. Upon information and belief, Defendants, by and through at least Harold Knight,

David Hale, and/or James Strelec learned of Down-N-Dirty Outdoors invention of a new turkey gobble call in autumn 2011. 30. Defendants and Down-N-Dirty Outdoors had at least three meetings in autumn

2011 where Down-N-Dirty Outdoors demonstrated its new turkey gobble call to Defendants, and Defendants expressed interest in gaining access to the technology and inquired about either a possible license to make, use and sell the new turkey gobble call technology from Down-N-Dirty Outdoors or a complete purchase of the Down-N-Dirty Outdoors company in order to obtain rights to make, use and sell the turkey gobble call. 31. During the initial meetings between the parties in 2011, Defendants were put on

actual notice that Down-N-Dirty Outdoors had filed at least one U.S. nonprovisional utility patent application directed to the invention of the new turkey gobble call. 32. Discussions between the parties continued through the fall of 2011, but no license

deal or purchase agreement was reached between Plaintiff and Defendants. 33. Down-N-Dirty Outdoors first released its new gobble call for sale to the public at

a trade show in August 2011, and Plaintiff began shipment of the new calls in December 2011. 34. Upon information and belief, Defendants obtained a physical sample of the new

Down-N-Dirty Outdoors turkey gobble call in December 2011 or January 2012, disassembled the Down-N-Dirty Outdoors turkey gobble call, and soon thereafter in January 2012 launched a competing product known as the Hale Fire turkey gobble call.

35.

Upon information and belief, Defendants knowingly and intentionally copied

many of the inventive features of the Down-N-Dirty gobble call and incorporated those features in the Hale Fire turkey gobble call. 36. On March 19, 2013, United States Patent No. 8,398,452 (the 452 Patent)

entitled Single Reed Turkey Gobble Call was duly and legally issued by the United States Patent and Trademark Office to Down-N-Dirty Outdoors. A copy of the 452 Patent is attached hereto as Exhibit A. The 452 Patent is valid and enforceable. 37. Down-N-Dirty Outdoors is the owner by assignment of the 452 Patent. FIRST CLAIM OF RELIEF INFRINGEMENT OF U.S. PATENT NO. 8,398,452 35 U.S.C. 271(a) 38. The allegations set forth in the foregoing paragraphs 1 through 37 are hereby re-

alleged and incorporated herein by reference. 39. Upon information and belief, Defendants have previously infringed, and are

infringing, by making, using, selling, offering to sell and importing the Hale Fire product throughout the United States, including in this District, in violation of 35 U.S.C. 271(a). 40. Upon information and belief, Defendants operate an online store at the internet

address http://www.knightandhale.com/catalog.aspx?catid=turkeycalls (last accessed March 22, 2013) through which Defendants have previously sold and offered for sale, and continue to sell and offer to sell, the Hale Fire product in violation of 35 U.S.C. 271(a). A copy of this website is shown as Exhibit B. 41. Upon information and belief, Defendants have participated in, and continue to

participate in, industry trade shows and demonstrations where Defendants have used, sold, and offered to sell the Hale Fire product in violation of 35 U.S.C. 271(a).

42.

Upon information and belief, Defendant Harold Knight was and continues to be

active in the design of, manufacture of, sales of and/or offers to sell the Hale Fire product in violation of 35 U.S.C. 271(a). 43. Upon information and belief, Defendant David Hale was and continues to be

active in the design of, manufacture of, sales of, and/or offers to sell the Hale Fire product in violation of 35 U.S.C. 271(a). 44. Upon information and belief, Defendant James Strelec was and continues to be

active in the design of, manufacture of, sales of, and/or offers to sell the Hale Fire product in violation of 35 U.S.C. 271(a). 45. Down-N-Dirty Outdoors reserves the right to allege, after discovery, that

Defendants direct infringement of the 452 Patent was and continues to be willful and deliberate, entitling Down-N-Dirty Outdoors to increased damages under 35 U.S.C. 284 and to attorneys fees and costs incurred in bringing this action under 35 U.S.C. 285. 46. Upon information and belief, Defendants obtained a physical sample of Down-N-

Dirty Outdoors inventive new turkey gobble call which is embodied in the 452 Patent prior to launching the Hale Fire product. 47. Upon information and belief, Defendants copied relevant structural features of the

Down-N-Dirty Outdoors gobble call in an effort to produce a competing turkey gobble call. 48. Upon information and belief, Defendants at the time they copied relevant

structural features of the Down-N-Dirty Outdoors gobble call had actual knowledge that a U.S. nonprovisional utility patent application had been previously been filed with the USPTO by Down-N-Dirty Outdoors on the turkey gobble call invention.

49.

The knowing, willful, and egregious conduct of Defendants, including obtaining

and directly copying Down-N-Dirty Outdoors inventive new product, with callous disregard for Down-N-Dirty Outdoors intellectual property rights, and then passing the invention off as Defendants own, justifies an enhancement of damages under 35 U.S.C. 284 and an award of costs, interest, and reasonable attorneys fees under 35 U.S.C. 285. 50. Defendants have no good-faith basis for continuing to directly infringe and/or to

induce others to infringe the 452 Patent. SECOND CLAIM OF RELIEF INDUCEMENT OF INFRINGEMENT OF U.S. PATENT NO. 8,398,452 35 U.S.C. 271(b) 51. The allegations set forth in the foregoing paragraphs 1 through 50 are hereby re-

alleged and incorporated herein by reference. 52. Upon information and belief, Defendants had and continue to have actual

knowledge of the 452 Patent or have engaged in willful blindness with regard to the 452 Patent. 53. Upon information and belief, Defendants had and continue to have actual

knowledge of U.S. Patent Publication No. 2012/0295511 published November 22, 2012, which is a publication of the patent application that became the 452 Patent. 54. Upon information and belief, actual instances of direct infringement under 35

U.S.C. 271(a) have been, and continue to be, committed by numerous third-party retailers by at least selling and offering to sell the Hale Fire product in the United States. For example, internet-based offers to sell the Hale Fire product by third-party retailers BPS Direct, LLC d/b/a/ Bass Pro Shops and Cabelas Inc. are shown as Exhibit C (last accessed March 22, 2013). 55. Upon information and belief, Defendants operate and maintain the website

http://www.knightandhale.com/productdetail.aspx?id=kht6000 (last accessed March 22, 2013).

Defendants acts of operating and maintaining this website actively induce others to commit acts of direct infringement of one or more Claims of the 452 Patent in violation of 35 U.S.C. 271(b). Defendants active inducement is undertaken with specific intent to bring about the acts of direct infringement. 56. Upon information and belief, Defendants operate, maintain, and distribute videos

on the internet actively inducing others to buy, use, sell and offer to sell the infringing Hale Fire product on at least the following internet addresses (last accessed March 22, 2013): x x x x x 57. http://www.youtube.com/watch?feature=player_embedded&v=259QGi4PNAc http://www.youtube.com/watch?feature=player_embedded&v=pGUkEXC8Z1A http://www.youtube.com/watch?feature=player_embedded&v=VxYQ_7maGQg http://www.youtube.com/watch?v=zqAocb-otAo http://www.knightandhale.com/productdetail.aspx?id=kht6000 Defendants acts of operating, maintaining, and distributing videos, advertising

and marketing material on the internet related to the Hale Fire product actively induce others to directly infringe one or more Claims of the 452 Patent with specific intent to bring about such infringement in violation of 35 U.S.C. 271(b). A screen shot of an example of a Knight & Hale Game Calls web page operated and maintained by Defendants including links to inducement materials available at http://www.knightandhale.com/productdetail.aspx?id=kht6000 is attached as Exhibit D. 58. Defendants active inducement through operation, maintenance, and distribution

of its websites and videos related to the Hale Fire product causes, urges, encourages and aids direct infringement by others, including at least: (1) the acts of direct infringement by EBSCO and PRADCO of making, using, selling and offering to sell the Hale Fire product in this

10

District; (2) the acts of direct infringement by third-party retailers of selling and offering to sell the Hale Fire product in this District; and (3) the acts of direct infringement by consumers who purchase and use the Hale Fire product in this District. 59. Upon information and belief, Defendant Harold Knight is an active agent and/or

employee of Defendants EBSCO and/or PRADCO. 60. Upon information and belief, Defendant Harold Knight appears in, operates,

maintains, and distributes videos on the internet at the following internet addresses (last accessed March 22, 2013): x x x 61. http://www.youtube.com/watch?feature=player_embedded&v=259QGi4PNAc http://www.youtube.com/watch?feature=player_embedded&v=pGUkEXC8Z1A http://www.knightandhale.com/productdetail.aspx?id=kht6000 Defendant Harold Knight actively induces others to directly infringe one or more

Claims of the 452 Patent with specific intent to bring about such infringement in violation of 35 U.S.C. 271(b) at least through his continued appearance in and involvement with the abovereferenced videos and websites. A screen shot of one of Mr. Knights videos and associated web page is attached as Exhibit E. 62. Defendant Harold Knights active inducement through his appearance in,

operation, maintenance, and distribution of his videos further causes, urges, encourages and aids direct infringement by others, including at least: (1) the acts of direct infringement by EBSCO and PRADCO of making, using, selling and offering to sell the Hale Fire product; (2) the acts of direct infringement by third-party retailers of selling and offering to sell the Hale Fire product; and (3) the acts of direct infringement of consumers who purchase and use the Hale Fire product.

11

63.

Upon information and belief, Defendant David Hale is an active agent and/or

employee of Defendants EBSCO and/or PRADCO. 64. Upon information and belief, Defendant David Hale appears in, operates,

maintains, and distributes videos on the internet at the following internet addresses (last accessed March 22, 2013): x x 65. http://www.youtube.com/watch?feature=player_embedded&v=pGUkEXC8Z1A http://www.knightandhale.com/productdetail.aspx?id=kht6000 Defendant David Hale actively induces others to infringe one or more Claims of

the 452 Patent with specific intent to bring about such infringement in violation of 35 U.S.C. 271(b) at least through his continued appearance in and involvement with the above-referenced videos. A screen shot of one Mr. Hales videos and associated web page is attached as Exhibit F. 66. Defendant David Hales active inducement through his appearance in, operation,

maintenance, and distribution of his videos further causes, urges, encourages and aids direct infringement by others, including at least: (1) the acts of direct infringement by EBSCO and PRADCO of making, using, selling, importing, and offering to sell the Hale Fire product; (2) the acts of direct infringement by third-party retailers of selling and offering to sell the Hale Fire product; and (3) the acts of direct infringement by consumers who purchase and use the Hale Fire product. 67. Upon information and belief, Defendant James Strelec is an active agent and/or

employee of Defendants EBSCO and/or PRADCO. 68. Upon information and belief, Defendant James Strelec appears in, operates,

maintains, and distributes videos on the internet at the following internet addresses (last accessed March 22, 2013):

12

x x x 69.

http://www.youtube.com/watch?feature=player_embedded&v=VxYQ_7maGQg http://www.knightandhale.com/productdetail.aspx?id=kht6000 http://www.youtube.com/watch?v=zqAocb-otAo&feature=endscreen&NR=1 Defendant James Strelec actively induces others to directly infringe one or more

Claims of the 452 Patent with specific intent to bring about such infringement in violation of 35 U.S.C. 271(b) at least by his appearance in and involvement with the above-referenced videos. Screen shots of some of Mr. Strelecs videos and associated web pages are attached as Exhibit G. 70. Defendant James Strelecs active inducement through his appearance in, operation

of, maintenance of, and distribution of his videos further causes, urges, encourages and aids direct infringement by others, including at least: (1) the acts of direct infringement by EBSCO and PRADCO of making, using, selling, importing, and offering to sell the Hale Fire product; (2) the acts of direct infringement by third-party retailers of selling and offering to sell the Hale Fire product; and (3) the acts of direct infringement by consumers who purchase and use the Hale Fire product. 71. Down-N-Dirty Outdoors reserves the right to allege, after discovery, that

Defendants indirect infringement of the 452 Patent, was and continues to be willful and deliberate, entitling Down-N-Dirty Outdoors to increased damages under 35 U.S.C. 284 and to attorneys fees and costs incurred in bringing this action under 35 U.S.C. 285. 72. The knowing, willful, and egregious conduct of Defendants, including obtaining

and directly copying Down-N-Dirty Outdoors single reed turkey gobble call invention with callous disregard for Down-N-Dirty Outdoors intellectual property rights and then passing the invention off as Defendants own, justifies an enhancement of damages under 35 U.S.C. 284 and an award of costs, interest, and reasonable attorneys fees under 35 U.S.C. 285.

13

PRAYER FOR RELIEF WHEREFORE, Plaintiff requests an Order of this Court, entering judgment: A. Holding that Defendants EBSCO, PRADCO, Harold Knight, David Hale, and

James Strelec have each directly infringed the 452 Patent under 35 U.S.C. 271(a); B. Holding that Defendants EBSCO, PRADCO, Harold Knight, David Hale, and

James Strelec have each induced infringement of the 452 Patent under 35 U.S.C. 271(b); C. willful; D. Preliminarily and permanently enjoining Defendants, their officers, agents, Holding that Defendants direct and indirect infringement of the 452 Patent was

employees, representatives, and all others acting in concert therewith, from further infringing, contributing to, or inducing infringement of the 452 Patent; E. Awarding lost profits damages, and at a minimum reasonable royalty damages, to

Plaintiff pursuant to 35 U.S.C. 284 in an amount adequate to compensate Plaintiff for the knowing and willful patent infringement by Defendants; F. Based on the willful and egregious nature of Defendants infringement, increasing

the damages award to three times the amount of the damages found or assessed in accordance with 35 U.S.C. 284; G. Finding this to be an exceptional case under 35 U.S.C. 285 and awarding

Plaintiff its costs, interest, and reasonable attorneys fees; H. Awarding provisional damages to Plaintiff pursuant to 35 U.S.C. 154(d) for

Defendants knowing, willful and egregious acts of infringement occurring before issuance of the 452 Patent based at least on Defendants actual knowledge of U.S. Patent Publication No.

14

2012/0295511, published on November 22, 2012 and the substantial similarity between the Claims in the publication and the issued 452 Patent; I. Ordering destruction or surrender of all infringing products and all advertising,

marketing and promotional material that induces infringement, at Plaintiffs election; and J. Awarding such further and other relief as this Court deems just and proper. JURY DEMAND Plaintiff requests a trial by jury of any and all issues triable of right by a jury. Respectfully submitted, /s/ Andrew M. Palmer Andrew M. Palmer D. Christopher Robinson FROST BROWN TODD LLC 400 West Market Street, 32nd Floor Louisville, KY 40202-3363 apalmer@fbtlaw.com crobinson@fbtlaw.com Tel: (502) 589-5400 Fax: (502) 581-1087 Counsel for Plaintiff

OF COUNSEL: Edward D. Lanquist, Jr. Matthew C. Cox Paul C. Ney WADDEY & PATTERSON, P.C. 1600 Division Street, Suite 500 Nashville, TN 37203 Tel: (615) 242-2400 Fax: (615) 242-2221 edl@iplawgroup.com mcc@iplawgroup.com pcn@iplawgroup.com

LOULibrary 0000000.0001536 1411355v1

15