Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA428763
`ESTTA Tracking number:
`09/06/2011
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91200662
`Defendant
`Rusty Can Enterprises LLC
`Plaintiff
`Michael D. Gatten
`
`Proceeding.
`Applicant
`
`Other Party
`
`Motion for Suspension in View of Civil Proceeding With Consent
`
`The parties are engaged in a civil action which may have a bearing on this proceeding. Accordingly, Rusty
`Can Enterprises LLC hereby requests suspension of this proceeding pending a final determination of the civil
`action. Trademark Rule 2.117.
`Rusty Can Enterprises LLC has secured the express consent of all other parties to this proceeding for the
`suspension and resetting of dates requested herein.
`Rusty Can Enterprises LLC has provided an e-mail address herewith for itself and for the opposing party so
`that any order on this motion may be issued electronically by the Board.
`
`Certificate of Service
`
`The undersigned hereby certifies that a copy of this paper has been served upon all parties, at their address
`record by Facsimile or email (by agreement only) on this date.
`Respectfully submitted,
`/Russell Gatten/
`Russell Gatten
`rustycan@roadrunner.com
`mgatten@miracleblanket.com
`09/06/2011
`
`

`
`A0 440{Rev. l2i’09) Summons in a Civil Action
`:.-j- -
`
`UNITED STATES
`ISTRICT COURT
`for the
`
`District of New Mexico
`
`Michael D. Gatten aikia Michael Dean Gatten and
`_ Miracle Industries LLC
`Piainrgf
`
`v.
`Russell Gatten and Rusty Can Enterprises LLC
`
`iseféndant
`
`\._/\....I\-._/\._/~«.....4\._/\._/
`
`Civil Action No.
`
`11 cv 684 MCA-LFG
`
`SUMMONS IN A CIVIL ACTION
`
`To: {I)efendam’s name and address) Rusty Can Enterprises LLC
`c/0 Russell Gatten, Agent
`3271 Heatherfield Ct.
`Newbury Park, California 91320
`
`A lawsuit has been filed against you.
`
`Within 2! days after service ofthis summons on you (not counting the day you received it) — or 60 days if you
`are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
`P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
`the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintifi’s attorney,
`whose name and address are:
`Rodney |__ schlage|
`Sherrill K. Filter
`
`Geoffrey D. White
`P.O. Box 3170
`Albuquerque, NM 87190
`
`If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
`You also must file your answer or motion with the court.
`
`Date: Monday, August ()_8_,_ 2011
`
`Matt Dykman
`CLERK OF Catggm Im,
`H. " ,
`.'
`“v
`c-"/’
`Q \‘-.
`_
`,-3.?‘
`-'
`.2‘ 3/
`‘tn’.
`+74*~r1d:ea_.H 0.l9,U.'"§§:“;
`i=_S‘i§ria£z;:.-re efQ?‘!e:'ic_ or~Dgpnjry Cierk
`X
`
`"i
`
`

`
`A0 440 (Rev. 12/09) Summons in a Civil Action (Page 2}
`
`.‘
`
`C1v1l Action No.
`
`11 cv 684 MCA-LFG
`
`
`
`(This section should not befiled with the court unfess required by Fed. R. Civ. P. 4 (0)
`
`PROOF OF SERVICE
`
`This summons for {name offndivirfzrnf and tirfe, ifcmy)
`
`was received by me 01‘1('dare)
`
`C]
`
`I personally served the summons on the individual at (piece)
`
`on (date)
`
`; or
`
`D I left the summons at the individual’s residence or usual place of abode with (name)
`
`on (darel
`
`, a person of suitable age and discretion who resides there,
`, and mailed a copy to the individual’s last known address; or
`
`I
`
`D I served the summons on (name Qfindivfdua!)
`
`designated by law to accept service of process on behalf of (name oforganfzatforr)
`
`on (date)
`
`; or
`
`Cl
`
`I returned the summons unexecuted because
`
`Cl Other (spec':'j§=,l.-
`
`, who is
`
`; or
`
`My fees are 33
`
`for travel and $
`
`for services, for a total of $
`
`(}_(}o
`
`I declare under penalty of perjury that this information is true.
`
`Date:
`
`Server is s:'gnm‘w‘e
`
`Primed name and {me
`
`Server is‘ addmss
`
`Additional information regarding attempted service, etc:
`
`

`
`Case 1:1’!-cv—OU684-MCA -LFG Document 1
`
`Filed O8lO5/1'1 Page 1 of 20
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF NEW MEXICO
`
`MICHAEL D. GATTEN, a/ls:/a MICHAEL
`DEAN GATTEN, and MIRACLE INDUSTRIES LLC,
`
`' Plaintiffs,
`
`No. 11 CV 684
`
`COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF
`AND JURY DEMAND
`
`Thornton Ba Baehr PC, and respectfully state as follows for their Complaint for
`Damages and Injunctive Relief and Jury Demand:
`
`JURISDICTIONAL ALLEGATIONS
`
`Gattr-In”) is a resident of Rio Rancho, New Mexico.
`
`2. Miracle Inclustries LLC (“Miracle Industries”) is a limited
`
`liability company organized and existing under the laws of the State of New
`
`Mexico with its principal place of business in Rio Rancho, New Mexico.
`
`3.
`
`Upon information and belief, Russell Gatten is a resident of
`
`Newbury Park, California.
`
`

`
`Case 1:11-cv~0O684—MCA -LFG Document 1
`
`Filed 08/05,111 Page 2 of 20
`
`Upon information and belief, Rusty Can Enterprises LLC
`4.
`(“Rusty Can Enterprises”) ‘
`‘
`'
`
`Newbury Park, California.
`
`Certain of the events giving rise to this action occurred in the
`5.
`State of New Mexico.
`
`Venue is proper in this district pursuant to 28 U.S.C. §§
`1391(1)) and l400(b].
`
`GENERAL ALLEGATIONS
`
`Michael Gatten is the owner of U.S. Patent Nos. 6,868,566;
`8.
`7,043,783; and 7,181,789 (hereinafter “Gatten Patents”).
`
`Michael Gatten is the owner of US. Trademark Registration
`9.
`Nos. 3,025,128 for “Miracle Blanket” and 3,600,962 for “The Gift of Sleep.”
`
`

`
`Case. 1:11—ov-00684-MCA —LFG Document 1
`
`Filed U8!05/11 Page 3 of 20
`
`“Amazing Miracle Blanket.” The U.S. Trademark Registrations and the
`
`common law trademark rights are collectively referred to herein as the “Gatten
`
`Tradeniarks.”
`
`1 1. Michael Gatten has granted Miracle Industries the right to
`
`distribute swaddling blankets using the Gatten Patents and the Gatten
`
`Trademarks.
`
`12.
`
`In the course of years of continuous advertising and use in
`
`commerce, the Gatten Trademarks have come to identify a. particular brand.
`
`The Gatten Patents, the Gatten Trademarks, and the goodwill and reputation
`
`associated therewith, along with the-right to use the Gatten Patents and the
`
`Gatten Trademarks, are among the most valuable of the assets of Michael
`
`Gatten .a.nd Miracle Industries.
`
`13.
`
`Russell Gatten is a former independent distributor for
`
`Miracle Industries and its predecessor, Amazing Miracle" Blanket Enterprises,
`
`and as such is aware of the Gatten Patents and Gatten Trademarks, including
`
`the use of the w-ord “Amazing” in commerce since at least May 1, 2002, to
`
`identify the ‘Miracle Blanket swaddling blanket.
`
`14. Upon information and belief, the Defendants are using the
`
`term “Amazing Blanket” in commerce to identify a swaddling blanket being sold
`
`by the Defendants to former customers of Michael Gatten, Amazing Miracle
`
`Blanket Enterprises, and Miracle Industries who would otherwise purchase the
`
`Miracle Blanket swaddling blanket.
`
`

`
`Case 1:1 1—o\/—UO684—MCA —i_FG Dooumen 1
`
`Filed O81/OSJ11 Page 4 of 20
`
`15.
`
`Upon information and beli 3f, the Defendants have infringed,
`
`induced infringement of, and contributorily ifringed the Gatten Patents and
`
`the Gatten Trademarks, and are still doing s - by making, using, selling, and/or
`
`offering for sale swaddling blankets embodyi g the inventions of the Gatten
`
`Patents and using the Gatteri Trademarks in this Judicial District and
`
`throughout the United States.
`
`16.
`
`The use by the Defendant: of the term “Amazing Blanket”
`
`causes a significant likelihood of confusion. Specifically, consumers confronted
`
`with the use by the Defendants of the term “i mazing Blanket" are likely to
`
`conclude that the product of the Defendants s somehow sponsored or licensed
`
`by or otherwise affiliated with Michael Gatter. and Miracle Industries.
`
`17.
`
`By causing a likelihood of: onfusion, the Defendants have
`
`knowingly and unlawfully misappropriated a iortion of the value of the Gatten
`
`Patents and the Gatten Trademarks and thei: associated goodwill for the use
`
`and profit of the Defendants. Because consu: iers familiar with the Gatten
`
`Patents and the Gatten Trademarks are likel} to conclude mistakenly that that
`
`the Defendants’ product is somehow sponsorr :1 or licensed by or otherwise
`
`affiliated with the product of Michael Gatten 2 "Id Miracle Industries, those
`
`consumers are more likely to purchase the pr duct of the Defendants or
`
`recommend it to others. This mistaken assoc ition inures to the benefit of tlie
`
`Defendants.
`
`18.
`
`The likelihood of confusion aused by the Defendants is
`
`

`
`Case 1:11 ~cv—OO684-MCA —L:G Document 1
`
`Filed O8f05l’l
`
`I Page 5 of 20
`
`causing and will continue to cause substantial and irreparable harm to Michael
`
`Gatten and Miracle Industries. Consumers who have an unpleasant or
`
`disappointing experience with the product of the Defendants are likely to
`
`conclude that similar problems exist with the product of Michael Gatten and
`
`Miracle Industries, even though they have no relationship or affiliation. The
`
`Defendants are directly and irreparably damaging one of the most valuable
`
`assets of Michael Gatten and Miracle Industries — their goodwill and
`
`reputation.
`
`19. Upon information and belief, the Defendants have published
`
`or caused to be published statements that have a defamatory imputation
`
`concerning Michael Gatten, Miracle Industries, or both, including but not
`
`limited to publication on the internet social networking site Facebook.
`
`COUNT I - INFRINGEMENT OF
`
`UNITED STATES PATENT NO. 6 868 566
`
`20.
`
`Plaintiffs hereby adopt and incorporate by reference
`
`Paragraphs 1 through 19 of their Complaint, as if fully set forth herein.
`
`21. Michael Gatten is the owner of U.S. Patent No. 6,868,566
`
`[the “S66 Patent”), attached hereto as Exhibit A, entitled “Swaddling Blanket.”
`
`Michael Gatten owns and has standing and capacity to sue and recover
`
`damages for infringement under the 566 Patent.
`
`22. Upon information and belief, the Defendants have violated
`
`

`
`Case 1:11-cv—O{J684—MCA -LFG Document 1
`
`Filed 08IO5/11 Page 6 of 20
`
`Michael Gatten’s patent rights by making, using, selling, and/or offering for
`
`sale “swaddling blankets” covered by at least one claim of the 566 Patent,
`
`without the authority of Michael Gatten.
`
`23. Upon information and belief, the Defendants have
`
`intentionally and actively induced, caused, urged, encouraged, and aided in the
`
`infringement of others with knowledge that others would infringe.
`
`24.
`
`Upon information and belief, the infringement of the 566
`
`Patent by the Defendants has been willful, wanton, and in bad faith.
`
`25.
`
`As a direct and proximate consequence of the actions of the
`
`Defendants, as alleged hereinabove, Michael Gatten has been, is being, and,
`
`unless such actions are enjoined by the Court, will continue to be injured in
`
`his business and property rights, and has suffered, is suffering, and will
`
`continue to suffer injury and damages for which it is entitled to relief under 35
`
`U.S.C. § 284.
`
`26.
`
`As a direct and proximate consequence of the actions of the
`
`Defendants, as alleged hereinabove, the Defendants have also caused, are
`
`causing, and, unless such actions are enjoined by the Court, will continue to
`
`cause irreparable harm to Michael Gatten for which there is no adequate
`
`remedy at law, and for which Michael Gatten is entitled to injunctive relief
`
`under 35 U.S.C. § 283.
`
`

`
`Case 1:1’!-cv—OO684—MCA —LFG Document 1
`
`Filed O8!O5;”11 Page 7 of 20
`
`COUNT II — INFRINGEMENT OF
`
`UNITED STATES PATENT N0. 7,__0_4-3,183
`
`2'7.
`
`Plaintiffs hereby adopt and incorporate by reference
`
`Paragraphs 1 through 26 of their Complaint, as if fully set forth herein.
`
`28. Michael Gatten is the owner of US. Patent No. 7,043,783
`
`[the “783 Patent”), attached hereto as Exhibit B, entitled “Swaddling Blanket.”
`
`Michael Gatten owns and has standing and capacity to sue and recover
`
`damages for infringement under the 783 Patent.
`
`29. Upon information and belief, the Defendants have violated
`
`Michael Gatten’s patent rights by making, using, selling, and/ or offering for
`
`sale “swaddling blankets” covered by at least one claim of the 783 Patent,
`
`without the authority of Michael Gatten.
`
`30. Upon information and belief, the Defendants have
`
`intentionally and actively induced, caused, urged, encouraged, and aided in the
`
`infringement of others with knowledge that others would infringe.
`
`31. Upon information and belief, the infringement of the 783
`
`Patent by the Defendants has been willful, wanton, and in bad faith.
`
`32.
`
`As a direct and proximate consequence of the actions of the
`
`Defendants, as alleged hereinabove, Michael Gatten has been, is being, and,
`
`unless such actions are enjoined by the Court, will continue to be injured in
`
`his business and property rights, and has suffered, is suffering, and will
`
`

`
`Case 1:1 'l—r:v—0O684~Ml‘3A —L:G Document 1
`
`Filed O8;’05/11 Page 8 of 20
`
`continue to suffer injury and damages for which it is entitled to relief under 35
`
`U.S.C. § 284.
`
`33.
`
`As a direct and proximate consequence of the actions of the
`
`Defendants, as alleged hereinabove, the Defendants have also caused, are
`
`causing, and, unless such actions are enjoined by the Court, will continue to
`
`cause irreparable harm to Michael Gatten for which there is no adequate
`
`remedy at law, and for which Michael Gatten is entitled to injunctive relief
`
`under 35 U.S.C. § 283-
`
`COUNT III — INFRINGEMENT OF
`
`UNITED STATES PATENT No. 7,181,789
`
`34.
`
`Plaintiffs hereby adopt and incorporate by reference
`
`Paragraphs 1 through 33 of their Complaint, as if fully set forth herein.
`
`35. Michael Gatten is the owner of U8. Patent No. 7,181,789
`
`[the “789 Patent”), attached hereto as Exhibit C, entitled “Swaddling Blanket.”
`
`Michael C-‘zatten owns and has standing and capacity to sue and recover
`
`damages for infringement under the 789 Patent.
`
`36. Upon information and belief, the Defendants have violated
`
`Michael Gatten’s patent rights by making, using, selling, and / or offering for
`
`sale “swaddling blankets” covered by at least one claim of the 789 Patent,
`
`without the authority of Michael Gatten.
`
`37.
`
`Upon information and belief, the Defendants have
`
`

`
`Case i:11-cv—G0684~MCA -LFG Document 1
`
`Filed OBIOSH1 Page 9 of 20
`
`intentionally and actively induced, caused, urged, encouraged, and aided in the
`
`infringement of others with knowledge that others would infringe.
`
`38. Upon information and belief, the infringement of the 789
`
`Patent by the Defendants has been willful, wanton, and in bad faith.
`
`39.
`
`As a direct and proximate consequence of the actions of the
`
`Defendants, as alleged hereinabove, Michael Gatten has been, is being, and,
`
`unless such actions are enjoined by the Court, will continue to be injured in
`
`his business and property rights, and has suffered, is suffering, and will
`
`continue to suffer injury and darnages for which it is entitled to relief under 35
`
`U.S.C. § 284.
`
`40.
`
`As a direct and proximate consequence of the actions of the
`
`Defendants, as alleged hereinabove, the Defendants have also caused, are
`
`causing, and, unless such actions are enjoined by the Court, will continue to
`
`cause irreparable harm to Michael Gatten for which there is no adequate
`
`remedy at law, and for which Michael Gatten is entitled to injunctive relief
`
`under 35 U.S.C. § 283.
`
`COUNT IV - UNFAIR COMPETITION AND FALSE DESIGNATION OF ORIGIN
`
`41.
`
`Plaintiffs hereby adopt and incorporate by reference
`
`Paragraphs 1 through 40 of their Complaint, as if fully set forth herein.
`
`42.
`
`This cause of action is for false designation of origin and
`
`unfair competition under 15 U.S.C. § 1125 (a)-
`
`

`
`Case 1:17-cv—00684-MCA -LFG Document 1.
`
`Filed 08z’05x'11 Page '10 of 20
`
`43.
`
`Through their use of the Gatten Trademarks, the Defendants
`
`have caused, and if not enjoined will continue to cause, consumers in this
`
`judicial district and elsewhere to be confused, mistaken, or deceived as to the
`
`affiliation, connection, or association of the products of the Defendants with
`
`those of Michael Gatten and Miracle Industries or as to the sponsorship or
`
`approval by Michael Gatten and Miracle Industries of the products of the
`
`Defendants.
`
`44.
`
`The use by the Defendants of the Gatten Trademarks has
`
`caused significant harm to Michael Gatten and Miracle Industries, including
`
`irreparable harm for which there is no adequate remedy at law.
`
`45.
`
`The conduct of the Defendants is both knowing and willful.
`
`COUNT V — TRADEMARK INFRINGEMENT
`
`46.
`
`Plaintiffs hereby adopt and incorporate by reference
`
`Paragraphs -1 through 45 of their Complaint, as if fully set forth herein.
`
`47.
`
`This cause of action is for infringement of US. Trademark
`
`Registration Nos. 3,025,128 for “l\/Iiracle Blanket,” attached hereto as Exhibit
`
`D, and 3,600,962 for “The Gift of Sleep,” attached hereto as Exhibit E.
`
`48.
`
`Through their use of the Miracle Blanket mark and the
`
`trademarked phrase “The Gift of Sleep,” the Defendants have used a
`
`reproduction, counterfeit, copy or colorable imitation of U.S. Trademark
`
`10
`
`

`
`Case1:11-cv—00684—MCA—LFG DocLIment1
`
`Filed 08/0 -11 3age11of20
`
`Registration Nos. 3,025,128 for “Miracle Blanket” and 3,6 0,962 for “The Gift
`
`of Sleep” in connection with the sale of goods or services .1
`
`-_ commerce and
`
`thereby caused, and if not enjoined will continue to cause a likelihood that
`
`consumers in this judicial district and elsewhere will be c nfused, mistaken, or
`
`deceived.
`
`49.
`
`The use by the Defendants of U.S. Trad ;-mark Registration
`
`Nos. 3,025,128 for “Miracle Blanket” and 3,600,962 for “'I 1e Gift of Sleep” has
`
`caused significant harm to Michael Gatten and Miracle In lustries, including
`
`irreparable harm for which there is no adequate remedy a
`
`law.
`
`50.
`
`The Defendants’ willful and unauthoriz cl misuse of US.
`
`Trademark Registration Nos. 3,025, I28 for “Miracle Blanl et” and 3,600,962 for
`
`“The Gift of Sleep” has damaged Michael Gatten and Mira le Industries in an
`
`amount to be determined at trial. Such use has also caue ed Michael Gatten
`
`and Miracle Industries to suffer irreparable harm, and the I will continue to be
`
`irreparably harmed unless and until the unlawful conduc of the Defendants is
`
`enjoined. Michael Gatten and Miracle Industries have no adequate remedy at
`
`law.
`
`51.
`
`The conduct of the Defendants is both i =1owing and willful.
`
`11
`
`

`
`Case 'I:11~cv—DO684-MCA —LFG Document‘!
`
`Filed O8f05f'I1 Page ‘I2 of 20
`
`COUNT VI — COMMON LAW TRADEMARK INFRINGEMENT
`
`52.
`
`Plaintiffs hereby adopt and incorporate by reference,
`
`Paragraphs 1 through 51 of their Complaint, as if fully set forth herein.
`
`53.
`
`This cause of action is for infringement of the “Amazing
`
`Miracle Blanket” common law trademark.
`
`54.
`
`Through their use of Amazing Blanket in connection with the
`
`sale of swaddling blankets, the Defendants have used a reproduction,
`
`counterfeit, copy or colorable imitation of the “Amazing Miracle Blanket”
`
`common law trademark in connection with the sale of goods or services in
`
`commerce and thereby caused, and if not enjoined will continue to cause, a
`
`likelihood that consumers in this judicial district and elsewhere will be
`
`confused, mistaken, or deceived.
`
`' 55.
`
`The use by the Defendants of Amazing Blanket has caused
`
`significant harm to Michael Gatten and Miracle Industries, including
`
`irreparable harm for which there is no adequate remedy at law.
`
`56.
`
`The Defendants’ use of Amazing Blanket has damaged
`
`Michael Gatten and Miracle Industr _es in an amount to be determined at trial.
`
`Such use has also caused Michael (iatten and Miracle Industries to suffer
`
`irreparable harm, and they will con" inue to be irreparahly harmed unless and
`
`12
`
`

`
`Case 1:‘I1~cv~OO684—i‘v1CA -LFG Document 1
`
`Filed O8/DSI11 Page 13 of 20
`
`until the unlawful conduct of the Defendants is enjoined. Michael Gatten and
`
`Miracle Industries have no adequate remedy at law.
`
`57.
`
`The conduct of the Defendants is both knowing and willful.
`
`COUNT VII - COMMON LAW UNFAIR COMPETITION
`
`58.
`
`Plaintiffs hereby adopt and incorporate by reference
`
`Paragraphs 1 through 57 of their Complaint, as if fully set forth herein.
`
`59.
`
`This cause of action is for unfair competition under New
`
`Mexico common law.
`
`60.
`
`Through their misappropriation of the C-‘ratten Trademarks,
`
`the Defendants have caused, and if not enjoined will continue to cause,
`
`consumers in this judicial district and elsewhere to be confused, mistaken, or
`
`deceived as to the affiliation, connection or association of the products of the
`
`Defendants with those of Michael Gatten and Miracle Industries or as to the
`
`sponsorship or approval by Michael Gatten and Miracle Industries of the
`
`products of the Defendants.
`
`61.
`
`The misappropriation by the Defendants of the Gatten
`
`Trademarks has caused significant harm to Michael Gatten and Miracle
`
`

`
`Case 1:11-cv-00684-MCA ~LFG Document '1
`
`Filed U8fO5l'I1 Page 14 of 20
`
`Industries, including irreparable harm for which there is no adequate remedy
`at law.
`
`62.
`
`The conduct of the Defendants is both knowing and willful.
`
`COUNT VIII - QEANTUM MERUITLUNJUST ENRICHMENT
`
`63.
`
`Plaintiffs hereby adopt and incorporate by reference
`
`Paragraphs 1 through 65 of their Complaint, as if fully set forth herein.
`
`64.
`
`This cause of action is for quantum meruit/unjust
`
`enrichment under New Mexico common law.
`
`65.
`
`As alleged hereinabove, the Defendants have unlawfully
`
`retained the benefit of the Gatten Patents and Gatten Trademarks and will
`
`continue to benefit from the Gatten Patents and Gatten Trademarks unless
`
`enjoined by the Court.
`
`66.
`
`The Defendants have knowingly benefitted from the Gatten
`
`Patents and Gatten Trademarks at the expense of Michael Gatten and Miracle
`
`Industries.
`
`67.
`
`The Defendants have also been unjustly enriched by the
`
`misappropriation of the Gratten Patents and the Gatten Trademarks.
`
`68.
`
`As a direct and proximate consequence of the actions of the
`
`Defendants, as alleged hereinabove, Michael Gatten and Miracle Industries
`
`have been, are being, and, unless such actions are enjoined by the Court, will
`
`14
`
`

`
`Case 1:11—cv-0068»--MC/ix —LFG Document 1
`
`Filed O8!O5f11 Page 15 of 20
`
`continue to be injured in their business and property rights, and have suffered,
`
`are suffering, and will continue to suffer injury and damages.
`
`COUNT IX — MISAPPROPRIATION
`
`69.
`
`Plaiitiffs hereby adopt and incorporate by reference
`
`Paragraphs 1 through 68 of their Complaint, as if fully set forth herein.
`
`70.
`
`The Defendants have unlawfully exercised, and continue to
`
`exercise, dominion and control over intellectual property of Michael Gatten and
`
`Miracle Industries anc have converted and misappropriated said valuable
`
`property to their use and benefit in defiance of Michael Gatten’s and Miracle
`
`Industries’ rights.
`
`'71.
`
`The Defendants’ conduct has caused, and will continue to
`
`cause, Michael Gatten and Miracle Industries substantial damage.
`
`COUNT X —- TORTIOUS INTERFERENCE WITH BUSINESS RELATIONS
`
`72.
`
`Plaintiffs hereby adopt and incorporate by reference
`
`Paragraphs 1 through 71 of their Complaint, as if fully set forth herein.
`
`73.
`
`The Defendants tortiously interfered with Michael Gatten’s
`
`and Miracle Industries longstanding business relationships with their
`
`customers. The Defen iants had knowledge of these relationships by virtue of
`
`their prior business re ationship with Michael Gatten and Miracle Industries.
`
`Without having any pr vilege or justification to do so, the Defendants played
`
`and continue to play a 1 active and substantial part in causing and atternpting
`
`to cause the business -1" some of these customers to be diverted to the
`
`15
`
`

`
`Case 1:11-cv-D0684-MCA —L.FG Document 1
`
`Filed OSXOSH1 Page 16 of 20
`
`Defendants, thus depriving Michael C-‘ratten and Miracle Industries of the
`
`benefits of its longstanding business relationships with these customers.
`
`74.
`
`The Defendants have used improper means or have acted
`
`with an improper motive intended solely to harm Michael Gatten and Miracle
`
`Industries in diverting Michael Gatten’s and Miracle Industries’ business to the
`
`use and benefit of the Defendants.
`
`75.
`
`The Defendants’ conduct was wrongful in character, and the
`
`Defendants’ conduct is and has been knowing, willful, intentional, reckless,
`
`and in bad faith.
`
`76.
`
`The Defendants’ wrongful conduct has caused, and will
`
`continue to cause, Michael Gatten and Miracle Industries substantial damage.
`
`COUNT XI — TORTIOUS INTERFERENCE
`
`WITH PROSPECTIVE BUSINESS RELATIONS
`
`77.
`
`Plaintiffs hereby adopt and incorporate by reference
`
`Paragraphs 1 through 76 of their Complaint, as if fully set forth herein.
`
`78. Michael Gatten and Miracle Industries are in the business of
`
`selling swaddling blankets and seek to obtain business from prospects.
`
`'79.
`
`The Defendants are also seeking to obtain business from
`
`these potential customers.
`
`80.
`
`The Defendants are aware of Michael Gatten’s and Miracle
`
`Industries’ existing and prospective business relationships.
`
`16
`
`

`
`Case 1:11—cv-00684-MCA —LFG Document 1
`
`Filed OBKOSMT Page 17 of2O
`
`81.
`
`The Defendants have engaged in ongoing and continual
`
`attempts to disparage, criticize, denigrate, and insult Michael Gatten and
`
`Miracle Industries in their communications with existing or potential
`
`customers.
`
`82.
`
`As such, the Defendants have intentionally and improperly
`
`interfered with existing and prospective business relationships solely to harm
`
`Michael Gatten and Miracle Industries or has done so through an irnproper
`
`I'I1€El.11S.
`
`83.
`
`As a proximate cause of the Defendants interference with
`
`existing and prospective business relationships, Michael Gatten and Miracle
`
`Industries have been injured.
`
`84.
`
`The Defendants’ wrongful conduct was willful, Wanton,
`
`reckless, and malicious a.nd has caused damage to Michael Gatten and Miracle
`
`Industries.
`
`COUNT XII - PRIMA FACIE TORT
`
`85.
`
`Plaintiffs hereby adopt and incorporate by reference
`
`Paragraphs 1 through 84 of their Complaint, as if fully set forth herein.
`
`86. Alternatively, the actions of the Defendants as alleged herein,
`
`although lawful, were conducted with the intent to injure and without
`
`sufficient economic or social justification.
`
`8?".
`
`The Defendants’ Wrongful conduct has caused, and will
`
`continue to cause, Michael Gatten and Miracle Industries substantial damage.
`
`17
`
`

`
`Base 1:11-cv-DU684—MCA -LFG Document 1
`
`Filed 08fO5r’l”I Page 18 of 20
`
`COUNT XIII — DEFAMATION
`
`88.
`
`Plaintiffs hereby adopt and incorporate by reference
`
`Paragraphs 1 through 8'7 of their Complaint, as if fully set forth herein.
`
`89. Various statements by the Defendants about Michael Gatten,
`
`Miracle Industries, or both, are capable of defamatory meaning.
`
`90.
`
`The statements by the Defendants were false or were made
`
`with reckless disregard of whether the statements and their implications were
`
`false.
`
`91.
`
`The Defendants published the statements.
`
`92.
`
`The statements have injured the reputation and goodwill of
`
`Michael Gatten and Miracle Industries.
`
`WHEREFORE, Michael Gatten and Miracle Industries request that
`
`the Court enter judgment against Russell Gatten and Rusty Can Enterprises,
`
`joint;y and severally, as follows:
`
`a. Declaring that United States Patent Nos. 6,868,566; 7,043,783;
`
`and 7,181,789 were duly and legally issued, are valid and are enforceable;
`
`b. Declaring that Russell Gatten and Rusty Can Enterprises have
`
`directly infringed, contributorily infringed, and / or induced infringement of one
`
`or mare claims of United States Patent Nos. 6,868,566; 7,043,783; and
`
`7,18 .|_,'?89;
`
`18
`
`

`
`Case 1:'i1~cv-OUE384—MCA —LFG Document 1
`
`Filed O8!05f1'i Page 19 of2O
`
`c. Declaring that Russell Gatten and Rusty Can Enterprises have
`
`willfully infringed one or more claims of United States Patent Nos. 6,868,566;
`
`7,043,783; and 7,181,789;
`
`cl. Preliminarily and permanently enjoining Russell Gatten and
`
`Rusty Can Enterprises and their respective officers, agents, servants,
`
`employees, and attorneys, and those persons in active concert or participation
`
`with them who receive actual notice of the order by personal service or
`
`otherwise, from committing further acts of infringement under 35 U.S.C. § 271
`
`of any one or more claims of United States Patent Nos. 6,868,566; 7,043,783;
`
`and 7,181,789, pursuant to 35 U.S.C. § 283;
`
`e. Awarding Michael Gatten damages in accordance with 35
`
`U.S.C. § 284-;
`
`f. Deeming this to be an "exceptional" case within the meaning of
`
`35 U.S.C. § 285, entitling Michael Gatten to an award of his reasonable
`
`attorney fees, expenses and costs in this action;
`
`g.
`
`Preliminarily and permanently enjoining and restraining
`
`Russell Gatten and Rusty Can Enterprises and their respective officers, agents,
`
`servants, employees, and attorneys, and those persons in active concert or
`
`participation with them who receive actual notice of the order by personal
`
`service or otherwise, from directly or indirectly using the Gatten Trademarks or
`
`any confusingly similar variation thereof which is likely to cause confusion,
`
`mistake, or to deceive;
`
`19
`
`

`
`Case 1:11—cv~OU684-MCA «LPG Document 1
`
`Filed OBKOSI11 Page 20 of 20
`
`h.
`
`Awarding compensatory damages in an amount to be I
`
`determined at trial, such amount to be trebled by virtue of the willful
`
`misconduct of Russell Gatten and Rusty Can Enterprises;
`
`i.
`
`Awarding punitive damages in an amount to be determined
`
`at trial;
`
`j.
`
`Awarding interest, costs and attorneys’ fees in an 8.I"['1011I'1lI to
`
`be determined at trial; and
`
`k.
`
`Awarding such other and further relief as this Court may
`
`deem appropriate under the circumstances.
`
`JURY DEMAND
`
`Plaintiffs demand a jury trial on all counts so available.
`
`Respectfully submitted,
`
`BUTT THORNTON 85 BAEI-IR PC
`
`gsg Rodney L. Schlagel
`Rodney L. Schlagel
`rlschlagel{a;btblaw.oom
`Sherrill K. Filter
`
`skfiltefigbtblawcorn
`Geoffrey D. White
`gdwhitegagbtblaw. com
`Attorneys for Plaintiffs
`P.O. Box 3170
`
`Albuquerque, NM 87190
`(505) 884-0777
`
`20
`
`

`
`,__,SH h.\.‘__,_ _,,.m Case 1:11-cv—OO684-MC&§nL..l§E ifapgfipggtfifilafiled 08iO5!1'l Page ‘I of 2
`
`The IS 44 Cl\-‘IIL:t}\"lJ|'5IICElZliIflIliQ Il'll-CII|l'|EJIIt'."J L‘D|I[..'iIE]€£I
`l’}t!FI3IJ1:'lt_‘I[l'[Ifl' ruplute nor 5ti=:ipIi:n1t:J1t the Filing and sewice. ufnieadiltgs or utia
`:I:ipui 5 its |'t_'t|lLlIfCEI_I))'lE.1\\‘, except :13 pro‘.-‘ii:Ii3(|
`
`‘court. This Ihtiii, E.Ip])]'I.'I\-'I_’I.I ii_v'.|u- Judicial Confereiicc oi LlIL' United gtzitus in Senletiilier !‘)'i4. is required for the use r.~1 t 12 L‘lr:tlt UFL.'uI.irL tor the piirposc oiiritititing
`by local |‘ltlt.'::
`'
`[I16 CIVII (Incl-Zcl 5‘ht‘t:[.
`[SEE li\'STRUtT'l'l[Jl*-'+} IJN Tilt"-.' REVIERSE OF 'l't-[I3 i”I-'ivi-.\'l.;
`
`l‘I..-\INTII‘-‘I-“S _
`I. (:1)
`Vlichael D. Gatten aikia Michael Dean Gatien and
`Miracle Industries, LLC
`
`I
`_
`DEl*‘l£:\‘DAi\i'1'S
`Russell Gatten and Rusty Cart lznterprisess, LLC
`
`33|'|dDV3l
`(bl Cuiiniy o1"Rc5idciv.ci: ui'First I...l.‘llELl I’laintiI”f
`iEXt_‘EI"F IN l_l_S. PLAINTIFF CASES}
`
`L3\Llé‘}I'l'Ir-:2
`R d ((1)
`'5 (I7|ingNi1-p1i:_i_,i:i1ddrests, fllltjgrgcplltfile hlgigbcr)
`.
`C age,
`0 may
`LI
`,
`GUI on
`59 i’.
`PO. Box 3170, Aibuquerque. NM 87190
`(505 884-07??
`II. BASIS OF JURISDICTION {mm rtn "}("i:|One Box Only]
`
`Cl
`
`I
`
`L-".5. Goveltilncnt
`Pluiutilf
`
`E 3 Fedr.-1-rt! Question
`ILLS. Govriritinunt Not a Party}
`
`U 2 US. Governnicnt
`Dciiciidnnt
`
`E]
`
`-I
`
`DI\'L‘I'5Ii)’
`(Indicate Citizenship of Parties in Item III}
`
`
`
`COLIIIW ol'I{esi.'icn:e ol‘Fir5t I..ISlL'i.i Dull-ntl::a11
`{IN US. PI.,\|;\"l'll’F (".‘.3E.‘§ t')NL‘i'l
`IN L_»‘\.'\lD CGNDEl\-INATEDN CASES, USE THE LOCATION D!’ THE
`LAND INVOLVED
`
`NOTE;
`
`
`
`1'3-ll0n1f3)’5Ill‘l‘1flD\\'I1i
`
`iriO:1e l3ci.\' rot Plaintifi’
`111. CITIZENSHIP OF PRINCIPAL PARTIESIPI.-tccnn
`[For Diversity Cases Only)
`and One Box for Deleiidaiit)
`PTF
`I“'I‘F
`DEF
`U I
`U 4
`Cl 4
`
`DEF
`D 1
`
`Incorporated or Principal Place
`of Business In This State
`
`Citizen of'|'ln's State
`
`Citizen offitnoilter Slate
`
`Cl 2
`
`Citizeuorsubjcctofa
`Forei rn C0lIl1l'l.'\'
`
`I3‘ 3
`
`Cl
`
`Cl
`
`2
`
`3
`
`Iucm-purmcd um." Pt‘I]1CI}'II!I I’-‘I.-toe:
`oi" Business In Another Stale
`
`Foreign Nation
`
`Cl
`
`El
`
`5
`
`6
`
`Cl
`
`5
`
`Cl 6
`
`IV. NATURE OF SUIT tI‘|ncc riuin One Box Onlvi
`
`D ] [D Il'I5lII'flII|ZC
`PERSONAL INJURY
`PERSONAL INJURY
`Cl GIIJ Agnctilttire
`Cl 422 Appeal 28 USC‘ I53
`U 400 Slute Rcnpportiunntelil
`
`Cl 120 Marine
`D 310 Airplane
`CI
`352 Persottal injury -
`Cl I520 Other Food .1: Drug
`Cl 423 Witltdrnwtxl
`3 4 I0 Arilimist
`
`El
`I30 Miller Act
`CI 315 Airplane Product
`Med. Malpractice
`CI 625 Dang Related Seizure
`23 USC I57
`Cl 430 Brinks and Enztlting
`El
`I40 Negotiable Instnimenl
`Lia'bilil')'
`365 Personal Injury -
`of Property 2| LFSC SSI
`II 450 Commerce
`
`El
`[50 Reco\'et'yof'{Jvei1Jaymeut El 320 Assr1uIL Libel .5:
`I’roi:Iur:t Liability
`El 530 Liquor l.::ws
`Cl AIG0 Deponution
`
`& ElIIi)I'(:cmEnlO.FJLJtIgmt:nl
`Slander
`363 .-Xsbestos Personal
`CI 640 RR. 8: Truck
`CF
`-ITO Racketeer Infiuenccri and
`
`El 13'! [\.rIei.licai'e Act
`330 Federal Employers‘
`Injury Product
`3 650 Airline Regs.
`Corrupt O