Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
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`ESTTA Tracking number:
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`ESTTA969698
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`Filing date:
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`04/26/2019
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Proceeding
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`91246466
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`Party
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`Correspondence
`Address
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`Defendant
`CM Welding Inc
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`WILLIAM P KEALEY
`STUART & BRANIGIN LLP
`300 MAIN STREET, STE 900
`LAFAYETTE, IN 47901
`UNITED STATES
`wpk@stuartlaw.com
`765-423-1561
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`Submission
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`Filer's Name
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`Filer's email
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`Signature
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`Date
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`Attachments
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`Motion to Dismiss - Rule 12(b)
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`William P. Kealey
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`wpk@stuartlaw.com, map@stuartlaw.com
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`/s/William P. Kealey
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`04/26/2019
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`Applicants Renewed Motion to Dismiss or Suspend the Opposition.pdf(1252107
`bytes )
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`In the matter of trademark Application Serial No. 87934942:
`Trademark: RPR
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`___________________________________________
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`DON ESTES
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`Opposer,
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`v.
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`CM WELDING INC.,
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`Applicant.
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`___________________________________________
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`Opposition No.: 91246466
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`APPLICANT’S RENEWED MOTION TO
`DISMISS OR SUSPEND THE OPPOSITION
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`Applicant CM Welding Inc. (“Applicant”), by counsel, moves to dismiss the Opposition
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`pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, to suspend the
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`Opposition pursuant to 37 C.F.R. § 2.117.
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`Opposer filed his First Amended Notice of Opposition (“Amended Notice”) on March
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`25, 2019. The Amended Notice does not remedy the original Notice’s failure to state a claim and
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`should therefore be dismissed. In the alternative, the Opposition should be suspended pending
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`the State Action discussed below.
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`A.
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`The Opposition fails to state a claim.
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`Pursuant to 37 C.F.R. § 2.104, the Notice of Opposition “must at the pleading stage
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`allege facts in support of” a “statutory ground which negates the applicant's entitlement to
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`registration.” Young v. AGB Corp., 152 F.3d 1377, 1380 (Fed. Cir. 1988) (emph. added). In
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`1
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`Young v. AGB Corp., the opposer’s allegation that he was in a “manufacturer-purchaser
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`relationship with respect to the subject matter of [applicant’s] application” failed to state a claim.
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`Id.
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`Similarly here, Opposer Don Estes has failed to “allege facts” that negate Applicant CM
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`Welding’s entitlement to registration. Opposer alleges that “his products were being sold by CM
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`Welding, Inc.”. Amended Notice, ¶ 12. Opposer does not allege that those products were sold by
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`anyone else prior to CM Welding.1
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`Paragraph 4 of the Amended Notice states: “That Opposer has continuously used RPR in
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`interstate commerce in the United States in connection with agricultural harvesting equipment, in
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`particular for concaves used in threshing machines (in IC 007) since at least as early as August
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`23, 2013.”
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`A conclusory allegation of “use in commerce” is not an allegation of “facts” within the
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`meaning of Young v. AGB. The “short and plain statement” standard requires the pleading to
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`state facts that plausibly show a right to relief. Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell
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`Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). In Iqbal, the Supreme Court stated:
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`First, the tenet that a court must accept as true all the allegations contained in a complaint
`is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
`action, supported by mere conclusory statements, do not suffice.... Second, only a
`complaint that states a plausible claim for relief survives a motion to dismiss.
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`Id. at 678-69. See Acceptance Ins. Companies, Inc. v. U.S., 583 F.3d 849, 853 (Fed. Cir. 2009)
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`(Quoting Twombly: “In order to avoid dismissal for failure to state a claim, a complaint must
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`allege facts ‘plausibly suggesting (not merely consistent with)’ a showing of entitlement to
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`relief.”).
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`1 The Amended Notice misquotes Applicant’s RPR application. The first use in
`commerce date shown in the application appended to Opposer’s Notice of Opposition is: “At
`least as early as 11/01/2016”.
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`2
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`The Amended Notice fails this standard. As Applicant’s previous Motion to Dismiss
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`noted, “The Opposition does not allege that Opposer used the RPR mark in the sale of goods and
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`services prior to Applicant’s use of the RPR mark in the sale of goods and services.” The
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`Amended Notice has the same defect.
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`The Lanham Act’s definition of “use in commerce” refers to when “the goods are sold or
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`transported in commerce.” 15 U.S.C. § 1127. The Amended Notice fails to plead facts plausibly
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`suggesting that Opposer sold or transported RPR-branded goods in commerce prior to and
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`independent of CM Welding doing so.
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`As in Young v. AGB, Opposer’s alleged supply-relationship with CM Welding does not
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`state a claim. Nor does it matter who conceived of the RPR trademark on goods sold by CM
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`Welding.2
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`The word “sale” appears only once in the Amended Notice: “Opposer submits that there
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`is a high likelihood of confusion to the public that are in the market for these goods as to who is
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`offering them for sale due to the similarity of the Marks.” ¶ 18.
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`In turn, the word “sell” appears in the Amended Notice only in reference to Applicant.
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`Amended Notice p. 4 (allegation that “Applicant is not licensed to sell Opposer’s patented
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`concaves.”).
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`The word “sold” appears only in two conclusory allegations that lack any assertion of
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`date-priority. Amended Notice, ¶ 16 (“has continuously used the Mark in interstate commerce in
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`2 In Malibu, Inc. v. Reasonover, 246 F.Supp.2d 1008 (N.D. Ind. 2003), the court rejected
`Reasonover’s argument that he owned the mark because he originated it while he was associated
`with Malibu, Inc. “’[T]he question of who originated the mark is immaterial. Therefore, proof of
`an earlier conception is of no relevance.... The question of who created, or contributed to the
`creation of, the goodwill of the mark is also immaterial. Thus, the trademark and trade names
`used by a corporation are owned by the corporation and not by its officers, managers or agents.’
`Rudolf Callman, THE LAW OF UNFAIR COMPETITION, TRADEMARKS AND
`MONOPOLIES § 19.01, at 4 (4th ed.1981) (emphasis in original).” Id. at 1015.
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`3
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`the United States in connection with harvesting concaves that are sold by him and by those he
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`has licensed to sell his product . . .”); p. 5 (“likely to cause confusion, or to cause mistake, or to
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`deceive as to the affiliation, connection, or association of Opposer with the Applicant for the
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`Opposed Mark, as to the origin, sponsorship, or approval of the Concaves sold by the parties”).
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`Because Opposer has not alleged any facts to plausibly suggest sales that confer senior-
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`user priority on Opposer, the Amended Notice fails to state a claim for denial of Applicant’s
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`registration of RPR on grounds of likelihood of confusion.
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`In the alternative, this Opposition should be suspended pending decision of the state
`court litigation between Applicant and Opposer.
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`B.
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`In the alternative, this Opposition should be suspended in deference to a previously filed
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`state court action by Applicant against Opposer and others.
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`The Amended Notice admits Opposer’s historical relationship with Applicant. ¶¶ 11-13.
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`Applicant CM Welding, Inc. is the plaintiff in a pending state court suit filed on August 20, 2018
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`(the “State Action”, in Clinton Superior Court, Clinton County Indiana, Cause No. 12D01-1808-
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`PL-000645). See Exhibit A hereto (clerk-stamped copy “Complaint”). As set forth in that
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`Complaint, CM Welding Inc. is an Indiana corporation with a place of business in Clinton
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`County, Indiana. Opposer Estes is the lead defendant in the State Action. The State Action will
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`decide the intellectual property issues pending between Applicant CM Welding and Opposer
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`Estes. Exhibit A, p. 13.
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`Pending resolution of the State Action, this Opposition should be suspended pursuant to
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`37 C.F.R. § 2.117 which provides, “[w]henever it shall come to the attention of the Trademark
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`Trial and Appeal Board that a party or parties to a pending case are engaged in a civil action or
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`another Board proceeding which may have a bearing on the case, proceedings before the Board
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`may be suspended until termination of the civil action or the other Board proceeding.”
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`4
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`The State Action “does not have to be dispositive of the Board proceeding to warrant
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`suspension, it need only have a bearing on the issues before the Board.” New Orleans Louisiana
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`Saints LLC & NFL Properties LLC, 99 U.S.P.Q.2d 1550 (T.T.A.B. July 22, 2011); TBMP
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`510.02(a); 6 McCarthy on Trademarks and Unfair Competition § 32:47 (5th ed.) (“It is standard
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`procedure for the Trademark Board to stay administrative proceedings pending the outcome of
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`court litigation between the same parties involving related issues.”).
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`In the pending Opposition No. 91244035, regarding Applicant CM Welding’s application
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`for RPR CONCAVES, this Board has recently determined to suspend that Opposition due to the
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`pendency of the same State Action. See Exhibit B, pp. 6-7. The Board’s rationale for suspending
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`that Opposition applies here also. In both Oppositions, the Opposer is alleging an issue that is
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`pending between Don Estes and CM Welding in the State Action.
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`WHEREFORE, Applicant respectfully requests the Board to:
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`CONCLUSION
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`1. Dismiss the Opposition for failure to state a claim upon which relief may be granted.
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`2. In the alternative, suspend this proceeding pursuant to 37 C.F.R. § 2.117.
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`3. Grant all other relief just and proper in the premises.
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`5
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`Date: April 26, 2019
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`Respectfully Submitted,
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`William P. Kealey
`Attorney No. 18973-79
`STUART & BRANIGIN LLP
`300 Main Street, Suite 900
`P.O. Box 1010
`Lafayette, IN 47902-1010
`(765) 423-1561 (telephone)
`(765) 742-8175 (fax)
`Attorney for Applicant CM Welding, Inc.
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and complete copy of the foregoing Applicant’s Renewed
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`Motion to Dismiss or Suspend the Opposition has been served on Opposer by forwarding said
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`copy on April 26, 2019, via email to: gaskew@askewipllc.com.
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`William P. Kealey
`Date: March 8, 2019
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`1164034_2.docx
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`6
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`Exhibit A
`Exhibit A
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`STATE OF INDIANA
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`COUNTY OF CLINTON
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`) SS:
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`CLINTON SUPERIOR COURT
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`CAUSE NO. 12D01-1808-PL-000645
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`JURY TRIAL DEMANDED
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`‘
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`0m“ 3
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`3 20m
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`. *
`é Am; In @mw
`CLERK SUPERIOR COURT
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`) ) )
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`CM WELDING, INC,
`Plaintiff,
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`V.
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`DONALD JOSEPH ESTES;
`STEVEN WILLIAM GREENO;
`COPPERHEAD CONCAVE
`SYSTEMS, LLC; COPPERHEAD
`AGRICULTURAL PRODUCTS,
`LLC; TAYLOR IP, P.C.; CSM
`CORP.
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`Defendants.
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`AMENDED COMPLAINT
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`Comes now Plaintiff CM Welding, Inc. (“CM Welding”), by counsel, and for its
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`Amended Complaint, states:
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`1.
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`Plaintiff CM Welding, Inc. is an Indiana corporation with a place of business in
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`Clinton County.
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`2.
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`Defendant Donald Joseph Estes (“Donald Estes”) is an individual Who has resided
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`in Clinton County in the course of events alleged herein.
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`3.
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`Defendant Steven William Greeno (“Greeno”) is an individual who resides in
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`Clinton County.
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`4.
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`Donald Estes and Steven Greeno were employees of Plaintiff in the course of
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`events alleged herein and are referred to herein as the “Employee Defendants.”
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`5.
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`Defendants Copperhead Concave Systems, LLC and Copperhead Agricultural
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`Products, LLC (together, “Copperhead Defendants”) are incorporated in South Dakota and have
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`done business with Plaintiff and the Employee Defendants in Clinton County in the course of
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`events alleged herein.
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`6.
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`Defendant Taylor IP, P.C. (“Taylor IP”) is incorporated in Indiana and has its
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`principal place of business in Avilla, Indiana.
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`7.
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`CSM Corp. is incorporated in Illinois and has its principal place of business in
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`Peoria, Illinois and has participated in Indiana in events alleged herein.
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`8.
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`CM Welding owns trademarks, trade secrets and other intellectual property,
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`including inventions made by Estes in the course and scope of his employment with Plaintiff
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`(“CM Intellectual Property”). Taylor IP is prosecution counsel of record for the following
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`applications and patents claiming CM Intellectual Property disclosed by Donald Estes (the “CM
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`Welding Patents”):
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`Provisional Patent Application Number 61/573,644
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`US. Patent Number 8,454,416
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`US. Patent Number RE 46,401
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`US. Patent Number 8,690,652
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`Provisional Patent Application Number 62/520,188
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`Non-provisional Patent Application Number 15/926,294
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`9.
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`Plaintiff is informed and believes and based thereon alleges: On July 26, 2018,
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`Donald Estes secretly attempted to license CM Intellectual Property including certain CM
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`Welding Patents and brand names to Copperhead Concave Systems, LLC. On August 16, 2018,
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`Donald Estes, with the assistance of Taylor IP, secretly attempted to nominally assign the CM
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`Welding Patents to CSM Corp. of Illinois (“CSM”). Without disclosure to Plaintiff, Taylor IP
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`recorded that assignment on August 22, 2018.
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`COUNT I - BREACH OF FIDUCIARY DUTY OF LOYALTY
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`10.
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`Plaintiff incorporates by reference the foregoing averrnents.
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`11.
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`As employees of Plaintiff, Employee Defendants were subject to a fiduciary duty
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`of loyalty to act solely for the benefit of Plaintiff during their employment.
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`I
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`12.
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`Defendant Estes failed to assign to Plaintiff the CM Welding Patents, which were
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`prepared under the direction of Estes and with financing by Plaintiff and assistance from Taylor IP,
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`for CM Intellectual Property. Defendant Estes further failed to disclose to Plaintiff that he had
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`failed to perform those assignments and instead attempted to claim ownership of the CM
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`Intellectual Property and CM Welding Patents and license or assign the CM Intellectual Property
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`and CM Welding Patents to others.
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`13.
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`Employee Defendants disclosed to Copperhead Defendants sensitive, confidential,
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`and trade secret information of Plaintiff, including confidential inventions, tax returns, cost data,
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`manufacturing relationships, and customer lists.
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`14.
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`Employee Defendants contacted Plaintiffs manufacturing supplier to persuade the
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`manufacturer to supply Plaintiff 3 product designs to Copperhead Defendants, without consent or
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`knowledge of Plaintiff.
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`15.
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`Employee Defendants diverted Plaintiff’ s inventory to Copperhead Defendants
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`. Without securing payment from Copperhead Defendants to Plaintiff. On information and belief,
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`Employee Defendants also diverted customer payments to themselves.
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`16.
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`Employee Defendants breached their fiduciary duty of loyalty to Plaintiff, resulting
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`in harm to Plaintiff according to proof.
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`17.
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`Employee Defendants’ breach of their duty of loyalty has deprived Plaintiff of the
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`fruits of their employment, thereby entitling Plaintiff to restitution of wage payments to Employee
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`Defendants.
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`18.
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`Because Employee Defendants’ above-alleged conduct is willful and malicious,
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`Plaintiff is entitled to exemplary damages.
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`COUNT II: MISAPPROPRIATION OF TRADE SECRETS
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`gUNIFORM TRADE SECRETS ACT!
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`19.
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`Plaintiff incorporates by reference the foregoing averments.
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`20.
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`Plaintiff possesses information (including but not limited to research and
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`development including certain CM Intellectual Property, customer lists, vendor identification,
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`and account information) (the “Proprietary Information”) which has commercial value on
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`account of the fact that it is not generally known.
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`21.
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`Plaintiff has taken reasonable steps to maintain the secrecy of the Proprietary
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`Information.
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`22.
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`Plaintiff is informed and believes and based thereon alleges that the Employee
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`Defendants and the Copperhead Defendants have removed and diverted the Proprietary Information
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`from Plaintiff s possession and control without permission of Plaintiff.
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`23.
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`The Employee Defendants and the Copperhead Defendants are using the Proprietary
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`Information without permission from Plaintiff, thereby committing trade secret misappropriation.
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`24.
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`Plaintiff has suffered damages from the above-alleged actions in an amount
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`according to proof.
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`25.
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`Because the above—alleged conduct is willful and malicious, Plaintiff is entitled to
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`exemplary damages.
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`COUNT III: CONVERSION
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`26.
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`Plaintiff hereby incorporates by reference the foregoing averments.
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`27.
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`Employee Defendants were entrusted with Plaintiff’ 3 property for the limited
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`purpose of furthering Plaintiff s business operations.
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`28.
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`For their own use and benefit, and without the authority to do so, Employee 1
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`Defendants wrongfully, knowingly and intentionally exerted physical dominion over or
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`otherwise converted and appropriated for their own personal use and benefit the property of
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`Plaintiff.
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`29.
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`Employee Defendants wrongfully exercised dominion over and intentionally and
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`knowingly misappropriated the property of Plaintiff with complete awareness, or awareness of
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`the high probability, that their acts were not authorized by Plaintiff and violated IC § 35-43—4-3.
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`30.
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`Plaintiff has suffered damages and incurred attorneys’ fees as a result of
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`Employee Defendants’ acts of conversion.
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`3 1.
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`Plaintiff is entitled to recover its attorneys’ fees and costs and treble damages
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`pursuant to IC § 34-24—3-1.
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`32.
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`Because Employee Defendants’ above—alleged conduct is willful and malicious,
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`Plaintiff is entitled to exemplary damages.
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`COUNT IV: FRAUD/CONSTRUCTIVE FRAUD
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`33.
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`Plaintiff incorporates by reference the foregoing averrnents.
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`Fraud
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`34.
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`During the summer of 2018, Employee Defendants misrepresented to Carolyn
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`Mitchell Estes, Plaintiff s owner, that Plaintiff was obligated by operation of patent law to
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`deliver Plaintiff s certain inventory of concave systems (the “Concave Systems Inventory”) to
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`the Copperhead Defendants in order to avoid patent infringement liability and that Copperhead
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`Defendants would pay Plaintiff eighty thousand dollars for the Concave Systems Inventory and
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`not the one—hundred and sixty thousand dollar market price. The Copperhead Defendants have
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`failed to pay for the Concave Systems Inventory.
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`35.
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`On numerous occasions over a period of years, Donald Estes has caused CM
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`Welding to write checks to Donald Estes for misrepresented purposes and expenses.
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`36.
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`Said misrepresentations were false and designed by Employee Defendants to
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`mislead and defraud Plaintiff.
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`37.
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`At the time when the foregoing actions, misrepresentations, and concealment
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`occurred, Plaintiff had no knowledge of the falsity of Employee Defendants’ representations or
`the matters concealed, and believed Employee Defendants’ representations to be true and
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`complete, and acted reasonably by relying thereon.
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`38.
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`As a direct and proximate result of Employee Defendants’ actions,
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`misrepresentations, concealment, and fraud, Plaintiff has suffered monetary damages in an
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`amount according to proof.
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`39.
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`Because Employee Defendants’ actions have been willful and malicious, Plaintiff
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`is entitled to recover exemplary damages.
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`Constructive Fraud ‘
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`40.
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`As employees of Plaintiff, Employee Defendants owed Plaintiff a fiduciary duty
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`to deal fairly, honestly, and openly with Plaintiff.
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`41.
`Employee Defendants breached their duties to Plaintiff by failing to disclose to
`Plaintiff that (i) Employee Defendants were negotiating secret terms with the Copperhead
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`Defendants; (ii) Employee Defendant were attempting to divert Plaintiff’ s inventory and the CM
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`Intellectual Property and Proprietary Information to the Copperhead Defendants; (iii) Donald
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`Estes was attempting to assign the CM Welding Patents to CSM Corp; and (iv) Donald Estes
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`diverted customer payments to his personal account.
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`42.
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`Employee Defendants’ conduct has been of a character that would prevent
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`Plaintiff’s inquiry into the nature of their actions and, as such, has constituted conduct that was
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`likely to create an injustice.
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`43.
`Plaintiff relied upon Employee Defendants to make only truthful representations
`to Plaintiff, and to conceal nothing from Plaintiffregarding the actions ofEmployee Defendants
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`with respect to the business operations and property of Plaintiff. ln reliance upon those
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`understandings, Plaintiff did repose special faith and trust in Employee Defendants and did rely
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`upon Employee Defendants to fully and faithfully, and with the utmost good faith, carry out their
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`obligations as Plaintiff’s employee and agent. In the absence of Employee Defendants’
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`misrepresentations and Plaintiffs reliance thereon, Plaintiff would not have suffered loss of or
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`damages to its property.
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`44.
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`At the time the foregoing misrepresentations and concealment occurred, Plaintiff
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`had no knowledge of the falsity of Employee Defendants’ representations or the matters
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`concealed, and believed their representations to be true and complete, and acted reasonably in
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`reliance thereon.
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`45.
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`Employee Defendants concealed their conduct with intent to defraud Plaintiff.
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`46.
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`Employee Defendants’ wrongful conduct, as stated herein, has worked a
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`constructive fraud on Plaintiff. By their conduct and concealment, Employee Defendants have
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`gained personal advantage from diversion of Plaintiffs money and property at the expense of
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`Plaintiff.
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`47.
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`As a direct and proximate result of said constructive fraud, Employee Defendants
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`have been unjustly enriched, and Plaintiff has suffered monetary damages in an amount
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`according to proof.
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`48.
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`Because Employee Defendants’ actions have been willful and malicious, Plaintiff
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`is entitled to recover exemplary damages.
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`COUNT V: DECEPTION
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`Plaintiff incorporates by reference the foregoing averments.
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`Employee Defendants knowingly and intentionally misapplied entrusted property
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`49.
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`50.
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`of Plaintiff in a manner that Employee Defendants knew was unlawful, or that Employee
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`Defendants knew involved a substantial risk of loss or detriment to Plaintiff, in violation of IC §
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`3 5 -43 ~5 —3 .
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`51.
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`Plaintiff has suffered damages as a result of Employee Defendants’ acts of
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`deception.
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`52.
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`Plaintiff is entitled to recover its attorneys’ fees and costs and treble damages
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`pursuant to IC § 34-24-3-1.
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`53.
`Because Employee Defendants’ above-alleged conduct is willful and malicious,
`Plaintiff is entitled to exemplary damages.
`V
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`COUNT VI: DECLARATORY JUDGMENT — INVENTIONS
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`Plaintiff incorporates by reference the foregoing averrnents.
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`This is an action for a declaratory judgment, pursuant to IC 34-14-1-1 et seq, and
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`54.
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`55.
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`Indiana Trial Rule 57. There exists an actual controversy between Plaintiff and Defendants,
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`within the jurisdiction of this Court, involving the rights, duties and obligations of the parties,
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`which controversy may be determined by a judgment of this Court, without other suits.
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`56.
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`Taylor 1P does not acknowledge CM Welding as Taylor lP’s client, the owner-in-
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`fact of the CM Intellectual Property, and the beneficial owner of the CM Welding Patents.
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`Taylor IP has not voluntarily, timely, and fully disclosed to Plaintiff the conduct of Taylor IP
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`alleged herein,
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`57.
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`Taylor IP has a client relationship with Plaintiff. Under the law of agency, Taylor
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`IP and Donald Estes have a fiduciary duty to CM Welding as the owner of the CM Intellectual
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`Property, including the trade secrets and other intellectual property disclosed in the CM Welding
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`Patents. Pursuant to the Restatement (Third) of Agency, the fiduciary duty of Taylor IP and
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`Donald Estes to CM Welding includes the following components.
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`0 General Fiduciary Principle: An agent has a fiduciary duty to act loyally for the
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`princip‘al’s benefit in all matters connected with the agency relationship.
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`0 Competition: Throughout the duration of an agency relationship, an agent has a duty
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`to refrain from competing with the principal and from taking action on behalf of or
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`otherwise assisting the principal’s competitors.
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`0 Use of Principal’s Property; Use of Confidential Information: An agent has a duty (1)
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`not to use property of the principal for the agent’s own purposes or those of a third
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`party; and (2) not to use or comrnunicate confidential information of the principal for
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`the agent’s own purposes or those of a third party.
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`0 Duty of Good Conduct: An agent has a duty, within the scope of the agency
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`relationship, to act reasonably and to refrain from conduct that is likely to damage the
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`principal’s enterprise.
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`58.
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`Neither Taylor IP nor Donald Estes is or ever has been authorized by Plaintiff to
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`disclose any of the CM Intellectual Property, the CM Welding Patents, or any other associated
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`patents and patent applications to CSM or the Copperhead Defendants.
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`59.
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`Neither Taylor IP nor Donald Estes is or ever has been authorized by Plaintiff to
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`assign or license any of the CM Intellectual Property, the CM Welding Patents, or any other
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`associated patents and patent applications to CSM or the Copperhead Defendants.
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`60.
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`Pursuant to Rule of Trial Procedure 57, Plaintiff requests a speedy hearing of this
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`action for a declaratory judgment.
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`COUNT VII: DECLARATORY JUDGMENT — TRADEMARIQ
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`Plaintiff incorporates by reference the foregoing averments.
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`This is an action for a declaratory judgment, pursuant to IC 34-14-1-1 et seq, and
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`61.
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`62.
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`Indiana Trial Rule 5 7. There exists an actual controversy between Plaintiff, the Employee
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`Defendants, and the Copperhead Defendants, within the jurisdiction of this Court, involving the
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`rights, duties and obligations of the parties, which controversy may be determined by a judgment
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`of this Court, without other suits.
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`63.
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`Plaintiff requests that the Court issue declaratory relief in favor of Plaintiff as
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`follows: Plaintiff owns and enjoys common law rights in Indiana and throughout the United
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`States in and to the trademark “RPR Concaves” (the “RPR Concaves Trademark”), which rights
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`are superior to any rights which any of the Employee Defendants and Copperhead Defendants
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`may claim in and to the use of the RPR Concaves Trademark. The Employee Defendants and
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`Copperhead Defendants must therefore be enjoined from using the RPR Concaves Trademark or
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`the substantial equivalents thereof for any commercial purpose.
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`64.
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`Pursuant to Rule of Trial Procedure 57, Plaintiff requests a speedy hearing of this
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`action for a declaratory judgment.
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`COUNT VIII: UNJUST ENRICHMENT
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`Plaintiff incorporates by reference the foregoing averments.
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`Donald Estes has used Plaintiff’ 3 property to confer a measurable benefit upon
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`65.
`
`66.
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`himself, the Copperhead Defendants, and CSM Corp.-
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`67.
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`Donald Estes and the Copperhead Defendants and CSM Corp. have no valid legal
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`or equitable claim to those benefits, and have been unjustly enriched thereby, and it would be
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`inequitable for them to retain those benefits.
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`68.
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`Plaintiff is entitled to an award equal to the amount of the unjust enrichment of
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`Donald Estes and the Copperhead Defendants and CSM Corp. so as to make restitution and
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`divest the inequitable benefits from them and return those benefits to their rightful owner,
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`Plaintiff.
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`COUNT IX: ACTION ON ACCOUNT
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`69.
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`Plaintiff incorporates by reference the foregoing averments.
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`70.
`
`Copperhead Defendants obtained delivery of the Concave Systems Inventory
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`from Plaintiff, upon a promise by Copperhead Defendants to pay for it.
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`71.
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`Copperhead Defendants, having received and accepted the Concave Systems
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`Inventory, have failed to pay for the Concave Systems Inventory.
`
`72.
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`Plaintiff is entitled to payment on account in an amount according to proof.
`
`COUNT X: COMPUTER TRESPASS; OFFENSE AGAINST INTELLECTUAL
`PROPERTY
`
`73.
`
`74.
`
`Plaintiff incorporates by reference the foregoing averments.
`
`Plaintiff is informed and believes and based thereon alleges that Employee
`
`Defendants have committed Offense Against Intellectual Property and Computer Trespass (Ind.
`
`Code §§ 35-43—1—7 and 35—43-2-3) by knowingly and intentionally accessing and using Plaintiff‘s
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`computers, computer systems, and computer network without the consent of Plaintiff for
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`unauthorized purposes.
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`75.
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`Employee Defendants’ actions have harmed Plaintiff in an amount according to
`
`proof.
`
`ll
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`

`76.
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`Plaintiff is entitled to recover its attorneys’ fees and costs and treble damages
`
`pursuant to IC § 34-24-3-1.
`
`77.
`
`Because Employee Defendants’ above—alleged conduct is willful and malicious,
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`Plaintiff is entitled to exemplary damages.
`
`COUNT XI: REPLEVIN
`Ind. Code §§ 32—35-2—1 et seq.
`
`78.
`
`Plaintiff incorporates by reference the foregoing averments.
`
`79.
`
`Donald Estes has wrongfully taken and/or unlawfully detained vehicles belonging
`
`to Plaintiff.
`
`80.
`
`The vehicles were not taken for a tax, assessment, or fine under a statute, nor were
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`they seized under an execution or attachment against the property of Plaintiff.
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`81.
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`The estimated value of the vehicles is $1.2 million.
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`82.
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`The vehicles are believed to be detained in facilities known to and under the
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`control of Donald Estes and/or his agents, the location of which facilities are not presently
`
`known.
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`83.
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`Plaintiff is entitled to return of the vehicles, or the value of the property in case
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`delivery is not possible, and damages for the detention of the property.
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`RELIEF REQUESTED
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`WHEREFORE, Plaintiff respectfully requests the following relief:
`
`A.
`
`B.
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`Compensatory damages and restitution in an amount according to proof, trebled.
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`An injunction mandating return to Plaintiff of the Proprietary Information, vehicles,
`
`and all other tangible property of Plaintiff in the possession of any Defendant.
`
`C.
`
`An injunction mandating return by Taylor IP to Plaintiff of all invention
`
`documentation received from Donald Estes.
`
`12
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`
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`D.
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`An injunction barring Defendants from undertaking any transaction involving the
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`CM Intellectual Property, CM Welding Patents, the RPR Concaves Trademark, or any other
`
`associated patents, patent applications, trademark applications, trademark registrations, or other
`
`legal protections.
`
`E.
`
`A declaration that (i) Plaintiff owns the CM Intellectual Property, the CM Welding
`
`Patents, the RPR Concaves Trademark, and all rights in all applications, registrations, and issued
`
`patents protecting the CM Intellectual Property or the RPR Concaves Trademark; (ii) all
`
`assignments and licenses by or among any of the Defendants involving the CM Intellectual
`
`Property, the CM Welding Patents, or the RPR Concaves Trademark are null and void; and (iii) all
`
`Defendants are enjoined from entering into any assignment or license for the CM Intellectual
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`Property, the CM Welding Patents, or the RPR Concaves Trademark and enjoined from any
`
`conduct contrary to Plaintiffs ownership interest in the CM Intellectual Property, the CM Welding
`
`Patents, and the RPR Concaves Trademark.
`
`F.
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`An accounting of all revenues of the Defendants from the use and sale of any
`
`product described as “RPR'Concaves”.
`
`G.
`
`H.
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`Exemplary damages.
`
`A finding that the conduct of Donald Estes and Steven Greeno has violated one or
`
`more sections of Indiana Code, Title 35, Article 43 and an increase in the damage award pursuant
`
`to Indiana Code, SectiOn 34—24-3-1.
`
`I.
`
`I.
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`An award of attorney fees and costs.
`
`All such other just relief.
`
`13
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`

`
`
`N In,
`
`William P. Kealey
`Attorney No. 18973-79
`Stuart & Branigin LLP
`300 Main Street, Suite 900
`PO. Box 101 0
`
`Lafayette, Indiana 47902—1010
`Telephone: (765) 428-7077
`
`Attorneyfor CM Welding, Inc.
`
`CERTIFICATE OF SERVICE
`
`I certify that on October 11, 2018, the foregoing document was served upon the following
`persons via US. first-class mail:
`
`Scott M. Kyrouac
`Wilkinson, Goeller, Modesitt,
`Wilkinson & Drummy, LLP
`333 Ohio Street
`
`Terre Haute IN 47807
`
`Alex M. Hagen
`Cadwell Sanford Deibert & Garry LLP
`200 E. 10th Street, Suite 200
`Sioux Falls SD 57104
`
`Jon A. Bragalone
`Carson, LLP
`301 W. Jefferson Blvd.
`Suite 200
`
`Fort Wayne IN 46802
`
`Richard D. Martin
`
`Attorney at Law
`12 South Main Street
`
`Frankfort IN 46041
`
`1105832-1
`
`LJl/q
`
`William P. Kealey
`
`14
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`Baxley
`
`
`
`
`
`
`
`Exhibit B
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`Trademark Trial and Appeal Board
`P.O. Box 1451
`Alexandria, VA 22313-1451
`General Contact Number: 571-272-8500
`General Email: TTABInfo@uspto.gov
`
`March 9, 2019
`
`Opposition No. 91244035
`
`Copperhead Agricultural Products, LLC,
`Copperhead Concave Systems, LLC
`
`v.
`
`CM Welding Inc.
`
`
`By the Trademark Trial and Appe