throbber
Cat07,LC3,iV1cHargh
`
`U.S. District Court
`
`Northern District of Ohio (Cleveland)
`CIVIL DOCKET FOR CASE #: 1:11-cv-00082-BYP
`
`Internal Use Only
`
`Progressive Casualty Insurance Company v. Allstate
`Insurance Company et al
`Assigned to: Judge Benita Y. Pearson
`Cause: 35:27] Patent Infringement
`
`Date Filed: 01/ 12/201 1
`Jury Demand: Both
`Nature of Suit: 830 Patent
`Jurisdiction: Federal Question
`
`_
`
`Plaintiff
`
`Progressive Casualty Insurance
`Company
`_
`_
`I
`2.7: We 4.‘! 75'
`7,;‘;L;f0_?,'5’
`
`represented by Christopher J. Higgins
`Jones Day - Cleveland
`901 Lakeside Avenue
`Cleveland, OH 44114
`216-586-7420
`' Fax: 216-579-0212
`
`Email: cjhiggins@jonesday.com
`LEAD A TTORNEY
`ATTORNEY TO BE NOTICED
`
`James R. Wooley
`Jones Day - Cleveland
`901 Lakeside Avenue
`
`Cleveland, OH 44114
`216-586-3939
`Fax: 216-579-0212
`
`Email: jrwooley@jonesday.com
`LEAD A TTORNEY
`ATTORNEY TO BE NOTICED
`
`Meredith M. Wilkes
`
`Jones Day - Cleveland
`90] Lakeside Avenue
`
`Cleveland, OH 44114
`216-586-3939
`Fax: 216-579-0212
`
`Email: mwi1kes@jonesday.com
`LEAD ATTORNEY
`ATTORNEY TO BE NOTICED
`
`Patrick J. Norton
`
`Jones Day - Cleveland
`901 Lakeside Avenue
`
`Cleveland, OH 44114
`216-586-3939
`
`Liberty Mutual
`Exhibit 1002
`
`Page 000001
`
`

`
`Case: 1:11-cv-00082-BYP Doc #: 1 Filed: 01/12/11 1 of 16. Page|D #: 1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF OHIO
`EASTERN DIVISION
`
`PROGRESSIVE CASUALTY INSURANCE
`
`COMPANY,
`
`Plaintiff,
`
`v.
`
`ALLSTATE INSURANCE COMPANY,
`ALLSTATE FIRE AND CASUALTY
`
`INSURANCE COMPANY, SAFECO
`INSURANCE COMPANY OF ILLINOIS,
`SAFECO INSURANCE COMPANY OF
`
`AMERICA, LIBERTY MUTUAL FIRE
`INSURANCE COMPANY and LIBERTY
`
`MUTUAL INSURANCE COMPANY,
`
`Defendants.
`
`Case No.
`
`JURY DEMAND
`
`COMPLAINT
`
`Plaintiff Progressive Casualty Insurance Company (“Progressive”), by and through its
`
`attorneys, for its complaint against Defendants Allstate Insurance Company (“Allstate
`
`Insurance”), Allstate Fire and Casualty Insurance Company (“Allstate Fire”), Safeco Insurance
`
`Company of Illinois (“Safeco Illinois”), Safeco Insurance Company of America (“Safeco
`
`America”), Liberty Mutual Fire Insurance Company (“Liberty Mutual Fire”) and Liberty Mutual
`
`Insurance Company (“Liberty Mutual”), alleges as follows:
`
`1.
`
`This action arises under the Patent Laws of the United States, Title 35 of the
`
`Unites States Code (for example, 35 U.S.C. §§ 271, 281, 283, 284, and 285) for infringement of
`
`U.S. Patent No. 6,064,970 (the “‘970 patent”) and U.S. Patent No. 7,124,088 (the ‘"088 patent”),
`
`CLI-1862930v1
`
`Page 000002
`
`

`
`Case: 1:11-cv-00082-BYP Doc #2 1 Filed: 01/12/11 2 of 16. PagelD #: 2
`
`and Title 15 of the United States Code, and the laws of the state of Ohio, for trademark
`
`infringement, unfair competition, and false designation of origin.
`
`PARTIES
`
`2.
`
`Progressive is a corporation organized under the laws of the state of Ohio, with its
`
`principal place of business at 6300 Wilson Mills Road, Mayfield Village, Ohio 44143.
`
`3.
`
`Allstate Insurance is a corporation organized and incorporated under the laws of
`
`the state of Illinois, with its principal place of business at Sanders Road, Northbrook, Illinois
`
`60062.
`
`4.
`
`Allstate Fire is a corporation organized and incorporated under the laws of the
`
`state of Illinois, with its principal place of business at Sanders Road, Northbrook, Illinois 60062.
`
`Allstate Insurance and Allstate Fire are collectively referred to herein as “Allstate?”
`
`5.
`
`Safeco Illinois is a corporation organized and incorporated under the laws of the
`
`state of Colorado, with its principal place of business at Safeco Plaza, 1001 4th Avenue, Seattle,
`
`Washington 981 85.
`
`6.
`
`Safeco America is a corporation organized and incorporated under the laws of the
`
`State of Washington, with its principal place of business at Safeco Plaza, 1001 4th Avenue,
`
`Seattle, Washington 98185. Safeco Illinois and Safeco America are collectively referred to
`
`herein as “Safeco.”
`
`7.
`
`Liberty Fire is a corporation organized and incorporated under the laws of the
`
`State of Massachusetts, with its principal place of business at 175 Berkley Street, Boston,
`
`Massachusetts 021 16.
`
`8.
`
`Liberty Mutual is a corporation organized and incorporated under the laws of the
`
`State of Massachusetts, with its principal place of business at 175 Berkley Street, Boston,
`
`CLI-l 862930vl
`
`Page 000003
`
`

`
`Case: 1:11-cv-00082-BYP Doc #: 1 Filed: 01/12/11 3 of 16. PageID #: 3
`
`Massachusetts 02116. Liberty Fire and Liberty Mutual are collectively referred to herein as
`
`“Liberty.”
`
`JURISDICTION AND VENUE
`
`9.
`
`The Court has jurisdiction over the subject matter of this action pursuant to
`
`15 U.S.C. §§ 1121 and 1125 and 28 U.S.C. §§ 1331 and 1338. This Court hasjurisdiction over
`
`Progressive’s common law claims pursuant to 28 U.S.C. §§ 1332 and 1367.
`
`10.
`
`11.
`
`Venue is proper in this Court under 28 U.S.C. §§ 1391 and 1400(b).
`
`On information and belief, Allstate regularly transacts and conducts business in
`
`this district, and, by itself or through one or more agents acting under its control and direction,
`
`has committed and/or induced acts of infringement in this district. On information and belief,
`
`Safeco regularly transacts and conducts business in this district, and, by itself or through one or
`
`more agents acting under its control and direction, has committed and/or induced acts of
`
`infringement in this district. On information and belief, Liberty regularly transacts and conducts
`
`business in this district, and, by itself or through one or more agents acting under its control and
`
`direction, has committed and/or induced acts of infringement in this district. Progressive is
`
`suffering from the effects of Defendants’ unlawful conduct in this district.
`
`FACTS COMMON TO ALL COUNTS
`
`United States Patents of Progressive
`
`12.
`
`On October 17, 2006, the United States Patent and Trademark Office duly and
`
`legally issued U.S. Patent No. 7,124,088 (attached as Exhibit A) for an invention related to an
`
`online insurance policy service system. Progressive owns the ’088 patent.
`
`13.
`
`On May 16, 2000, the United States Patent and Trademark Office duly and legally
`
`issued U.S. Patent No. 6,064,970 (attached as Exhibit B) for an invention related to the
`
`CLH 862930v1
`
`3
`
`Page 000004
`
`

`
`Case: 1:11-cv-00082-BYP Doc #: 1 Filed: O1l12/11 4of16. PageID#:4
`
`determination of insurance ratings based upon vehicle monitoring. Progressive owns the ’970
`
`patent.
`
`Registered Trademark of Progressive
`
`14.
`
`Since 2004, Progressive has invested millions of dollars in advertising and
`
`promoting the trademark “DRIVE” in various forms in connection with insurance services.
`
`15.
`
`Progressive has exclusive rights under license to use the DRIVE mark described
`
`in United States Trademark Registration No. 2,974,452, a Copy of which is attached as Exhibit C.
`
`16.
`
`Allstate is using the mark Drive Wise in interstate commerce, in connection with
`
`insurance services.
`
`COUNT I
`
`Patent Infringement [Against All Defendants) — ‘[188 Patent
`
`A.
`
`Allstate
`
`17.
`
`Progressive incorporates by reference the allegations set forth in paragraphs 1
`
`through 16 above as though fully asserted herein.
`
`18.
`
`On information and belief, Allstate was aware of the ’OSS patent prior to the acts
`
`of infringement alleged herein.
`
`19.
`
`On information and belief, Allstate, individually or through one or more agents
`
`under its direction and control, has been and still is operating a website entitled
`
`“www.Allstate.com” (the “Allstate website”).
`
`20.
`
`On information and belief, the Allstate website operates as an online insurance
`
`policy service system.
`
`21.
`
`On information and belief, the Allstate website utilizes a security feature that
`
`allows access to insurance policy parameters for a specified policyholder.
`
`CLl-I 862930vl
`
`Page 000005
`
`

`
`Case: 1:11-cv-00082-BYP Doc #: 1 Filed: 01/12/11 5 of 16. PagelD #: 5
`
`22.
`
`On information and belief, the Allstate website adjusts a policyholder’s insurance
`
`policy parameters in response to data received from the policyholder.
`
`23.
`
`Allstate is infringing the ’088 patent, including through the operation of the
`
`Allstate website, which includes each and every feature of the claimed invention. Allstate is
`
`infringing either directly, through its own actions and/or the actions of one or more third-party
`
`vendors acting under its direction and]or control, or indirectly, through active inducement of the
`
`infringing actions with knowledge of or deliberate indifference to the existence and infringement
`
`of the “D88 patent.
`
`24.
`
`On information and belief, Allstate has continued its infringing activities despite
`
`having notice of the ’088 patent. Such infringement is willful, entitling Progressive to the
`
`recovery of treble damages pursuant to 35 U.S.C. § 284. In addition, this is an exceptional case,
`
`justifying an award of attorneys’ fees and costs to Progressive pursuant to 35 U.S.C. § 285.
`
`25.
`
`Allstate’s infringement has caused and will continue to cause damage and
`
`irreparable harm to Progressive until enjoined by this Court. The amount of the damage and
`
`harm has not yet been determined but will be proven at trial.
`
`B.
`
`Safeco
`
`26.
`
`Progressive incorporates by reference the allegations set forth in paragraphs 1
`
`through 25 above as though fully asserted herein.
`
`27.
`
`On information and belief, Safeco was aware of the ’088 patent prior to the acts of
`
`infringement alleged herein.
`
`28.
`
`On information and belief, Safeco, individually or through one or more agents
`
`under its direction and control, has been and still is operating a website entitled
`
`“www.Safeco.com” (the “Safeco website”).
`
`CLI—l86293(lVl
`
`Page 000006
`
`

`
`Case: 1:11-cv-00082-BYP Doc #: 1 Filed: 01/12/11 6 of 16. PageID #: 6
`
`29.
`
`On information and belief, the Safeco website operates as an online insurance
`
`policy service system.
`
`30.
`
`On information and belief, the Safeco website utilizes a security feature that
`
`allows access to insurance policy parameters for a specified policyholder.
`
`31.
`
`On information and belief, the Safeco website adjusts a policyholder’s insurance
`
`policy parameters in response to data received from the policyholder.
`
`32.
`
`Safeco is infringing the ’088 patent, including through the operation of the Safeco
`
`website, which includes each and every feature of the claimed invention. Safeco is infringing
`
`either directly, through its own actions and/or the actions of one or more third-party Vendors
`
`acting under its direction and/or control, or indirectly, through active inducement of the
`
`infringing actions with knowledge of or deliberate indifference to the existence and infringement
`
`of the ’088 patent.
`
`33.
`
`On information and belief, Safeco has continued its infringing activities despite
`
`having notice of the ’088 patent. Such infringement is willful, entitling Progressive to the
`
`recovery of treble damages pursuant to 35 U.S.C. § 284. In addition, this is an exceptional case,
`
`justifying an award of attorneys’ fees and costs to Progressive pursuant to 35 U.S.C. § 285.
`
`34.
`
`Safeco’s infringement has caused and will continue to cause damage and
`
`irreparable harm to Progressive until enjoined by this Court. The amount of the damage and
`
`harm has not yet been determined but will be proven at trial.
`
`C.
`
`Liberty
`
`35.
`
`Progressive incorporates by reference the allegations set forth in paragraphs 1
`
`through 34 above as though fully asserted herein.
`
`CLI—l862930vl
`
`Page 000007
`
`

`
`Case: 1:11-cv-00082-BYP Doc #: 1 Filed: 01/12/11 7 of 16. Page|D #: 7
`
`36.
`
`On information and belief, Liberty was aware of the ’088 patent prior to the acts
`
`of infringement alleged herein.
`
`37.
`
`On infonnation and belief, Liberty, individually or through one or more agents
`
`under its direction and control, has been and still is operating a website entitled
`
`“www.libertymutual.com” (the “Liberty website”).
`
`38.
`
`On information and belief, the Liberty website operates as an online insurance
`
`policy service system.
`
`39.
`
`On information and belief, the Liberty website utilizes a security feature that
`
`allows access to insurance policy parameters for a specified policyholder.
`
`40.
`
`On information and belief, the Liberty website adjusts a po1icyho1der’s insurance
`
`policy parameters in response to data received from the policyholder.
`
`41.
`
`Liberty is infringing the ’088 patent, including through the operation of the
`
`Liberty website, which includes each and every feature of the claimed invention. Liberty is
`
`infringing either directly, through its own actions and/or the actions of one or more third-party
`
`vendors acting under its direction and/or control, or indirectly, through active inducement of the
`
`infringing actions with knowledge of or deliberate indifference to the existence and infringement
`
`of the ’088 patent.
`
`42.
`
`On information and belief, Liberty has continued its infringing activities despite
`
`having notice of the ’088 patent. Such infringement is willful, entitling Progressive to the
`
`recovery of treble damages pursuant to 35 U.S.C. § 284. In addition, this is an exceptional case,
`
`justifying an award of attorneys’ fees and costs to Progressive pursuant to 35 U.S.C. § 285.
`
`CL]-l86Z930vl
`
`Page 000008
`
`

`
`Case: 1:11-cv-00082-BYP Doc #2 1 Filed: 01/12/11 8 of 16. Page|D #: 8
`
`43.
`
`Liberty’s infiingement has caused and will continue to cause damage and
`
`irreparable harm to Progressive until enjoined by this Court. The amount of the damage and
`
`harm has not yet been determined but will be proven at trial.
`
`COUNT 11
`
`Patent Infringement {Against Allstate! — ’970 Patent
`
`44.
`
`Progressive incorporates by reference the allegations set forth in paragraphs 1
`
`through 43 above as though fully asserted herein.
`
`45.
`
`On information and belief, Allstate was aware of the ’970 patent prior to the acts
`
`of infringement alleged herein.
`
`46.
`
`On information and belief, Allstate, individually or through one or more agents
`
`under its direction and control, has been and still is operating a usage-based vehicle insurance
`
`program entitled “Drive Wise.”
`
`47.
`
`On information and belief, Allstate, individually or through one or more agents
`
`under its direction and control, operates and maintains an Internet website at
`
`http://drivewise.allstate.com (the "Drive Wise website"), which includes details regarding the
`
`"Drive Wise" program.
`
`48.
`
`On information and belief, Allstate, or a third party vendor acting on behalf of and
`
`under the direction and control of Allstate, in connection with the "Drive Wise" program, obtains
`
`data regarding mileage, driving time of day, hard braking, speed and acceleration, VIN, and
`
`date/time from an insured vehicle via an electronic device plugged into the vehicle’s OBD-II
`
`port. On information and belief, Allstate owns the electronic device.
`
`CLI-I 862930vl
`
`Page 000009
`
`

`
`Case: 1:11-cv-00082-BYP Doc #: 1 Filed: 01/12/11 9of 16. PageID#: 9
`
`49.
`
`On information and belief, Allstate, or a third party vendor acting on behalf of and
`
`under the direction and control of Allstate, calculates a rating based on the obtained data in
`
`accordance with a formula provided by or for Allstate.
`
`50.
`
`Allstate is infringing the ’97O patent, including through the operation of the
`
`"Drive Wise" program, which includes each and every feature of the claimed invention. Allstate
`
`is infringing either directly, through its own actions and/or the actions of one or more third-party
`
`vendors acting under its direction and/or control, or indirectly, through active inducement of the
`
`infringing actions with knowledge of or deliberate indifference to the existence and infringement
`
`ofthe ’970 patent.
`
`51.
`
`On information and belief, Allstate has continued its infringing activities despite
`
`having notice of the ’970 patent. Such infringement is willfiil, entitling Progressive to the
`
`recovery of treble damages pursuant to 35 U.S.C. § 284. In addition, this is an exceptional case,
`
`justifying an award of attorneys’ fees and costs to Progressive pursuant to 35 U.S.C. § 285.
`
`52.
`
`Al1state’s infringement has caused and will continue to cause damage and
`
`irreparable harm to Progressive until enjoined by this Court. The amount of the damage and
`
`harm has not yet been determined but will be proven at trial.
`
`COUNT III
`
`Trademark Infringement {Against Allstate) — 15 U.S.C. §1l14
`
`53.
`
`Progressive incorporates by reference the allegations set forth in paragraphs 1
`
`through 52 above as though fully asserted herein.
`
`54.
`
`Allstate is using the confusingly similar mark, "Drive Wise," in connection with
`
`insurance services.
`
`55.
`
`Progressive’s use of the DRIVE Trademark predates any alleged use by Allstate.
`
`CL1-1 s62930v1
`
`9
`
`Page 000010
`
`

`
`Case: 1:11-cv—00082-BYP Doc #: 1 Filed: 01/12/11 10 of 16. Page|D #: 10
`
`56.
`
`Allstate’s use of the Drive Wise mark has and is likely to continue to deceive and
`
`cause confusion and mistake among customers as to the source or origin of the goods or services
`
`offered for sale by Allstate and the sponsorship of endorsement of those goods or services by
`
`Progressive.
`
`57.
`
`A11state’s use of the Drive Wise mark has and is likely to continue to deceive and
`
`cause confusion and mistake among customers as to the source or origin of the goods offered for
`
`sale by Progressive and the sponsorship or endorsement of those goods or services by Allstate.
`
`58.
`
`Progressive has not authorized or otherwise condoned or consented to A11state’s
`
`use of the Drive Wise mark.
`
`59.
`
`Despite the fact that Allstate had knowledge of Progressive’s rights to the DRIVE
`
`Trademark, Allstate used the Drive Wise mark in complete disregard of Progressive’s rights in
`
`violation of 15 U.S.C. § 1051 et. seq.
`
`60.
`
`Allstate has misappropriated Progressive’s substantial intellectual property rights
`
`as well as the goodwill associated therewith. Unless restrained and enjoined by this Court, such
`
`conduct will permit Allstate to gain an unfair competitive advantage over Progressive, to enjoy
`
`the selling power of the DRIVE Trademark, and allow Allstate to improperly blunt and to
`
`interfere with Progressive’s continued promotion and expansion of the DRIVE Trademark.
`
`61.
`
`As a result of Allstate’s unlawful activities, Progressive has suffered and
`
`continues to suffer irreparable harm.
`
`62.
`
`As a direct and proximate result ofA11state’s unlawful activities, Progressive has
`
`suffered and Continues to suffer damages in an amount that is not presently ascertainable but will
`
`be established at trial.
`
`CL]-1862930vl
`
`Page 000011
`
`

`
`Fax: 216-579-0212
`
`Email: pjnorton@jonesday.com
`LEAD ATTORNEY
`ATTORNEY TO BE NOTICED
`
`Calvin P. Griffith
`
`Jones Day - Cleveland
`901 Lakeside Avenue
`
`Cleveland, OH 44114
`216-586-3939
`Fax: 216-579-0212
`
`Email: cpgriffith@jonesday.com
`ATTORNEY TO BENOTICED
`
`V.
`
`Defendant
`
`Allstate Insurance Company
`
`represented by Luke L. Dauchot
`Kirkland & Ellis - Chicago
`300 North LaSalle Street
`
`Chicago, IL 60654
`312-862-2000
`Fax: 312-862-2200
`
`Email: ldauchot@kirl(land.c0m
`ATTORNEY TO BE NOTICED
`
`Patrick J. Norton
`
`(See above for address)
`ATTORNEY TO BE NOTICED
`
`Robert J. Herberger , Jr.
`Roth, Blair, Roberts, Strasfeld & Lodge
`
`Ste. 600
`100 Federal Plaza East
`
`Youngstown, OH 44503
`330-744-5211
`Fax: 330-744-3184
`
`Email: rherberger@roth-blair.com
`ATTORNEY TO BE NOTICED
`
`Defendant
`
`Allstate Fire and Casualty Insurance
`Company
`
`represented by Luke L. Dauchot
`(See above for address)
`ATTORNEY TO BE NOTICED
`
`Patrick J. Norton
`
`(See above for address)
`ATTORNEY TO BE NOTICED
`
`Page 000012
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`

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`Case: 1:11-cv-00082-BYP Doc #: 1 Filed: 01/12/11 11 of 16. PageID #: 11
`
`False Desi nation of Ori 'n/ Unfair Com etition A ainst Allstate - 15 U.S.C. 1125 a
`
`COUNT IV
`
`63.
`
`Progressive incorporates by reference the allegations set forth in paragraphs 1
`
`through 62 above as though fully asserted herein.
`
`64.
`
`On information and belief, defendant Allstate has begun using the confusingly
`
`similar mark. Drive Wise, in connection with insurance services.
`
`65.
`
`Progressive’s use of the DRIVE Trademark predates any alleged use by Allstate.
`
`66.
`
`Allstate’s use of the Drive Wise mark has and is likely to continue to deceive and
`
`cause confusion and mistake among customers as to the source or origin of the goods or services
`
`offered for sale by Allstate and the sponsorship of endorsement of those goods or services by
`
`Progressive.
`
`67.
`
`Allstate’s use of the Drive Wise mark has and is likely to continue to deceive and
`
`cause confusion and mistake among customers as to the source or origin of the goods offered for
`
`sale by Progressive and the sponsorship or endorsement of those goods or services by Allstate.
`
`68.
`
`Progressive has not authorized or otherwise condoned or consented to A1lstate’s
`
`use of the Drive Wise mark.
`
`69.
`
`Despite the fact that Allstate had knowledge of Progressive’s rights to the DRIVE
`
`Trademark, Allstate used the Drive Wise mark in complete disregard of Progressive’s rights in
`
`violation of 15 U.S.C. § 1051 et. seq.
`
`70.
`
`Allstate has misappropriated Progressive’s substantial intellectual property rights
`
`as well as the goodwill associated therewith. Unless restrained and enjoined by this Court, such
`
`conduct will permit Allstate to gain an unfair competitive advantage over Progressive, to enjoy
`
`CLl-l862930v1
`
`Page 000013
`
`

`
`Case: 1:11-cv-00082-BYP Doc #: 1 Filed: 01112111 12 of 16. Page|D #: 12
`
`the selling power of the DRIVE trademark, and to allow Allstate to improperly blunt and
`
`interfere with Progressive’s continued promotion and expansion of the DRIVE Trademark.
`
`71.
`
`The acts of Allstate alleged above were committed willfully, with full knowledge
`
`of Progressive’s rights and with the intention to deceive and mislead the public.
`
`72.
`
`The acts of Allstate alleged above were committed willfully, with full knowledge
`
`of Progressive’s rights and with the intention of causing harm to Progressive.
`
`73.
`
`The acts of Allstate alleged above were committed willfully, with full knowledge
`
`of Progressive’s rights and with the intention of misappropriating and wrongfully trading upon
`
`the valuable goodwill and reputation of Progressive and the DRIVE Trademark.
`
`74.
`
`Allstate will continue its ongoing acts of false designation or origin, causing
`
`irreparable injury to Progressive, unless such activities are enjoined by this Court.
`
`75.
`
`As a result of Allstate’s unlawful activities, Progressive has suffered and
`
`continues to suffer irreparable harm.
`
`76.
`
`As a direct and proximate result of Allstate’s unlawful activities, Progressive has
`
`suffered and continues to suffer damages in an amount that is not presently ascertainable but will
`
`be established at trial.
`
`COUNT V
`
`Common Law Unfair Competition {Against Allstate}
`
`77.
`
`Progressive incorporates by reference the allegations set forth in paragraphs 1
`
`through 76 above as though fully asserted herein.
`
`78.
`
`On information and belief, defendant Allstate has begun using the confusingly
`
`similar mark, Drive Wise, in connection with insurance services.
`
`79.
`
`Progressive’s use of the DRIVE Trademark predates any alleged use by Allstate.
`
`CL]-1S62930v1
`
`12
`
`Page 000014
`
`

`
`Case: 1:11—cv~00O82wBYP Doc#: 1 Filed: 01/12/11 13 of 16. Page|D #: 13
`
`80.
`
`Allstate’s use of the Drive Wise mark has and is likely to continue to deceive and
`
`cause confusion and mistake among customers as to the source or origin of the goods of services
`
`offered for sale by Allstate and the sponsorship of endorsement of those goods or services by
`
`Progressive.
`
`81.
`
`Allstate’s use of the Drive Wise mark has and is likely to continue to deceive and
`
`cause confusion and mistake among customers as to the source or origin of the goods offered for
`
`sale by Progressive and the sponsorship or endorsement of those goods or services by Allstate.
`
`82.
`
`Progressive has not authorized or otherwise condoned or consented to A1lstate’s
`
`use of the Drive Wise mark.
`
`83.
`
`Despite the fact that Allstate had knowledge of Progressive’s rights to the DRIVE
`
`Trademarks, Allstate used the Drive Wise mark in complete disregard of Progressive’s rights in
`
`violation of the common law of the state of Ohio.
`
`84.
`
`Allstate has misappropriated Pr0gressive’s substantial intellectual property rights
`
`as well as the goodwill associated therewith. Unless restrained and enjoined by this Court, such
`
`conduct will permit Allstate to gain an unfair competitive advantage over Progressive, to enjoy
`
`the selling power of the DRIVE Trademark, and to allow Allstate to improperly blunt and
`
`interfere with Progressive’s continued promotion and expansion of the DRIVE Trademark.
`
`85.
`
`As a result of Allstate’s unlawful activities, Progressive has suffered and
`
`continues to suffer irreparable harm.
`
`86.
`
`As a direct and proximate result of Al1state’s unlawfirl activities, Progressive has
`
`suffered and continues to suffer damages in an amount that is not presently ascertainable but will
`
`be established at trial.
`
`CLI-l 862930vl
`
`Page 000015
`
`

`
`Case: 1:11-cv-O0082—BYP Doc #: 1 Filed: 01/12/11 14 of 16. PageID #: 14
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Progressive demands the following relief:
`
`A.
`
`a preliminary and permanent injunction against Allstate’s continued infringement
`
`and inducement of infiingement of the ‘970 patent and the ‘088 patent;
`
`B.
`
`an award of damages in favor of Progressive and against Allstate sufficient to
`
`compensate Progressive for Allstate’s infringement of the ‘970 patent and the ‘088 patent and an
`
`assessment of pre-judgment interest and post-judgment interest;
`
`C.
`
`a preliminary and permanent injunction against Safeco’s and Liberty’s continued
`
`infringement and inducement of infringement of the ‘088 patent;
`
`D.
`
`an award of damages in favor of Progressive and against Safeco and Liberty
`
`sufficient to compensate Progressive for Safeco’s and Liber1y’s infringement of the ‘O88 patent
`
`and an assessment of pre-judgment interest and post-judgment interest;
`
`E.
`
`F.
`
`G.
`
`trebling of damages for willful infringement pursuant to 35 U.S.C. § 284;
`
`a finding by the Court that this case is exceptional under 35 U.S.C. § 285;
`
`a preliminary and permanent injunction against Allstate, or anyone else acting in
`
`concert with Allstate, or on their behalf, from:
`
`(1)
`
`using any reproduction or colorable imitation of the DRIVE Trademark,
`
`or any mark confusingly similar thereto;
`
`engaging in any other conduct that suggests or tends to suggest to the
`
`public that Allstate is in any manner, directly or indirectly
`
`affiliated, connected or associated with Progressive or that
`
`Allstate‘s services, goods or commercial activities originate from or are
`
`sponsored or approved by Progressive.
`
`CLI-l862930vl
`
`Page 000016
`
`

`
`Case: 1:11-cv-00082-BYP Doc #2 1 Filed: 01l12l11 15 of 16. PagelD #: 15
`
`H.
`
`requiring Allstate account to Progressive for all profits made by Allstate in
`
`connection with any and all commercial activity relating to Allstate’s use of the DRIVE
`
`Trademark;
`
`I.
`
`awarding to Progressive the damages it sustained as a result of Allstate’s wrongfill
`
`acts in connection with A11state’s use of the DRIVE Trademark;
`
`J.
`
`K.
`
`L.
`
`awarding to Progressive, Allstate’s profits pursuant to 15 U.S.C. § 1117;
`
`awarding to Progressive treble damages pursuant to 15 U.S.C. §§ 1117;
`
`an award to Progressive for its reasonable expenses, including attorneys’ fees, and
`
`costs of this action; and
`
`M.
`
`such other relief as the Court finds just and proper.
`
`CLI—l862930v1
`
`Page 000017
`
`

`
`Case: 1:11-cv-00082-BYP Doc #: 1 Filed: 01/12/11 16 of 16. PageID #: 16
`
`JURY DEMAND
`
`Progressive demands a jury trial.
`
`Date: January 12, 2011
`
`Respectfully submitted,
`
`By: /s/ Calvin P. Griffith
`James R. Wooley (Ohio Bar No. 0033850)
`jrwoo1ey@jonesday.com
`Calvin P. Griffith (Ohio Bar No. 0039484)
`cpgriffith@jonesday.com
`Meredith M. Wilkes (Ohio Bar No. 0073092)
`mwi1kes@jonesday.com
`Patfick J. Norton (Ohio Bar No. 0069978)
`pjnorton@jonesday.com
`Christopher J. Higgins (Ohio Bar No. 0084196)
`cjhiggins@jonesday.co1n
`JONES DAY
`North Point
`901 Lakeside Avenue
`
`Cleveland, Ohio 44114
`Telephone: (216) 586-3939
`Facsimile:
`(216)579-0212
`
`Attorneys for Plaintifl’
`Progressive Casualty Insurance Company
`
`CLI-l S62930vl
`
`Page 000018
`
`

`
`Defendant
`
`Safeco Insurance Company of Illinois
`
`Robert J. Herberger , Jr.
`(See above for address)
`ATTORNEY TO BE NOTICED
`
`represented by James R. Myers
`Ropes & Gray - Washington
`One Metro Center
`700 Twelvth Street
`
`Washington, DC 20005
`202-508-4600
`Fax: 202-508-4650
`
`Email: james.1nyers@r0pesgray.com
`ATTORNEY TO BENOTICED
`
`John S. Cipolla
`Calfee, Halter & Griswold - Cleveland
`1400 KeyBank Center
`800 Superior Avenue
`Cleveland, OH 44114
`216-622-8200
`Fax: 216-241-0816
`
`Email: jcipolla@calfee.com
`ATTORNEY TO BE NOTICED
`
`Joshua V. Vanhoven
`
`Ropes & Gray - East Palo Alto
`6th Floor
`
`1900 University Avenue
`East Palo Alto, CA 94303
`650-617-4063
`Fax: 650-566-4232
`Email:
`
`J0shua.VanH0ven@ropesgray.c0m
`ATTORNEY TO BE NOTICED
`
`Mark W. McDougall
`Calfee, Halter & Griswold - Cleveland
`1400 KeyBank Center
`800 Superior Avenue
`Cleveland, OH 44114
`216-622-8524
`Fax: 216-241-0816
`
`Email: rnmcd0ugall@calfee.c0rn
`ATTORNEY TO BE NOTICED
`
`Nicole M. Jantzi
`
`Ropes & Gray — Washington
`One Metro Center
`700 Twelvth Street
`
`Page 000019
`
`

`
`Washington, DC 20005
`202-508-4600
`Fax: 202-508-4650
`
`Email: nicole.j antzi@ropesgray.com
`ATTORNEY TO BE NOTICED
`
`Patrick J. Norton
`
`(See above for address)
`ATTORNEY TO BE NOTICED
`
`Defendant
`
`Safeco Insurance Company of
`America
`
`represented by James R. Myers
`(See above for address)
`ATTORNEY TO BE NOTICED
`
`John S. Cipolla
`(See above for address)
`A TTORNEY TO BE NOTICED
`
`Joshua V. Vanhoven
`
`(See above for address)
`ATTORNEY TO BE NOTICED
`
`Mark W. McDougall
`(See above for address)
`ATTORNEY TO BE NOTICED
`
`Nicole M. Jantzi
`
`(See above for address)
`ATTORNEY TO BE NOTICED
`
`Patrick J. Norton
`
`(See above for address)
`ATTORNEY TO BE NOTICED
`
`Defendant
`
`Liberty Mutual Insurance Company
`
`represented by James R. Myers
`(See above for address)
`ATTORNEY TO BE NOTICED
`
`John S. Cipolla
`(See above for address)
`ATTORNEY TO BE NOTICED
`
`Joshua V. Vanhoven
`
`(See above for address)
`ATTORNEY TO BE NOTICED
`
`Mark W. McDougall
`(See above for address)
`
`Page 000020
`
`

`
`ATTORNEY TO BE NOTICED
`
`Nicole M. Jantzi
`
`(See above for address)
`ATTORNEY TO BE NOTICED
`
`Patrick J. Norton
`
`(See above for address)
`ATTORNEY TO BE NOTICED
`
`Defendant
`
`Liberty Mutual Fire Insurance
`Company
`
`represented by James R. Myers
`(See above for address)
`ATTORNEY TO BE NOTICED
`
`John S. Cipolla
`(See above for address)
`ATTORNEY TO BE NOTICED
`
`Joshua V. Vanhoven
`
`(See above for address)
`ATTORNEY TO BE NOTICED
`
`Mark W. McDougal]
`(See above for address)
`ATTORNEY TO BE NOTICED
`
`Nicole M. Jantzi
`
`(See above for address)
`ATTORNEY TO BE NOTICED
`
`Patrick J. Norton
`
`(See above for address)
`ATTORNEY TO BE NOTICED
`
`Counter-Defendant
`
`Drive Trademark Holdings, LP
`
`Counter-Claimant
`
`represented by Patrick J. Norton
`(See above for address)
`ATTORNEY TO BE NOTICED
`
`Allstate Fire and Casualty Insurance
`Company
`
`represented by Luke L. Dauchot
`(See above for address)
`ATTORNEY TO BE NOTICED
`
`Patrick J. Norton
`
`(See above for address)
`ATTORNEY TO BE NOTICED
`
`Robert J. Herberger , Jr.
`
`Page 000021
`
`

`
`Counter-Claimant
`
`Allstate Insurance Company
`
`V.
`
`Counter-Defendant
`
`Progressive Casualty Insurance
`Company
`
`(See above for address)
`ATTORNEY TO BENOTICED
`
`represented by Luke L. Dauchot
`(See above for address)
`ATTORNEY TO BE NOTICED
`
`Patrick J. Norton
`
`(See above for address)
`ATTORNEY TO BE NOTICED
`
`Robert J. Herberger , Jr.
`(See above for address)
`ATTORNEY TO BE NOTICED
`
`represented by Christopher J. Higgins
`(See above for address)
`LEAD ATTORNEY
`ATTORNEY TO BE NOTICED
`
`James R. Wooley
`(See above for address)
`LEAD ATTORNEY
`ATTORNEY TO BE NOTICED
`
`Meredith M. Wilkes
`
`(See above for address)
`LEAD ATTORNEY
`ATTORNEY TO BENOTICED
`
`Patrick J. Norton
`
`(See above for address)
`LEAD A TTORNEY
`ATTORNEY TO BE NOTICED
`
`Calvin P. Griffith
`
`(See above for address)
`ATTORNEY TO BE NOTICED
`
`namedE
`01/ 12/201 1
`Complaint with jury demand against All Defendants. Filing fee paid $
`350, Receipt number 0647-4491327 Plaintiff has indicated that case
`may be related to pending civil action 10-cv-1370. Filed by Progressive
`Casualty Insurance Company. (Attachments: # 1 Civil Cover Sheet, # 2
`
`Page 000022
`
`

`
`01/ 12/201 1
`
`01/13/2011
`
`01/ 13/201 1
`
`01/ 13/2011
`
`01/ 13/2011
`
`01/20/2011
`
`01/24/2011
`
`01/24/2011
`
`01/25/2011
`
`01/27/2011
`
`Summons, # 3;! Exhibit A, # 5 Exhibit B, # § Exhibit C) (Griffith, Calvin)
`(Entered: 01/12/2011)
`
`2 Corporate Disclosure Statement identifying Corporate Parent Progressive
`Corporation for Progressive Casualty Insurance Company filed by
`Progressive Casualty Insurance Company. (Griffith, Calvin) (Entered:
`01/ 12/201 1)
`
`Judge Patricia A. Gaughan assigned to case. (C,BA) (Entered:
`01/ 13/201 1)
`
`Random Assignment of Magistrate Judge pursuant to Local Rule 3.1. In
`the event of a referral, case will be assigned to Magistrate Judge
`McHargh. (C,BA) (Entered:

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