throbber
IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`TTAB
`
`X
`
`FIDO’S FENCES, INC.
`
`Petitioner
`
`v.
`
`INVISIBLE FENCE. INC.
`
`Respondent
`
`X
`
`,.,.. ;;. 22.8652
`
`CANCELLATION NOS. 92050302 (PARENT)
`92050306
`
`92050322
`
`I hereby certify that this correspondence is being deposited with the United
`States Postal Service as Express Mail No. Ell 510786877 US in an envelope
`addressed to: United States Patent and Trademark Office. Trademark Trial
`and Appeal Board on Friday. Febru
`'27. 2009
`
`
` DATED: 02/27/08
`5/.
`Pana ' ta Betty Tufarie o
`
`
`Name:
`
`DECLARATION OF PANAGIOTA BETTY TUFARIELLO, ESQ. ON BEHALF OF
`
`PETITIONER FIDO’S FENCES, INC. IN RESPONSE TO THE T.T.A.B.’S JANUARY
`28, 2009, ORDER RE: CANCELLATION NOS. 92050302 (PARENT), 92050306, 92050322
`
`I, PANAGIOTA BETTY TUFARIELLO, ESQ., an attorney duly admitted to the practice
`
`oflaw before the Courts of the State of New York, as well as the U.S. District Court for the
`
`Eastern District of New York. and a member of the Patent Bar of the U.S. Patent and Trademark
`
`Office (# 40.851), hereby declare under penalty of perjury the following:
`
`1.
`
`I hereby submit the present declaration in response to the T.T.A.B.’s January 28, 2009,
`
`Order in re: Cancellation Nos. 92050302 (parent). 92050306. 92050322.
`
`Page l- DECLARATION OF PANAGIOTA BETTY TUFARIELLO, ESQ. ON BEHALF OF PETITIONER FIDO’S
`FENCES, INC. IN RESPONSE TO THE T.T.A.B'S JANUARY 28, 2009. ORDER RE: CANCELLATION NOS.
`92050302 (PA RENT), 92050306, 92050322
`
`lllllll|||||llllllllllllllllllllllllllllllllllllll
`
`U2-27-2009
`
`

`
`2.
`
`I am an attorney and member of the firm Intellectulaw, The Law Offices of P.B.
`
`Tufariello. P.C., attorneys of record for the Petitioner FIDO”S FENCES, INC. (hereinafter
`
`Fido’s Fences), in the above captioned cancellations. As such, I am fully familiar with the
`
`facts and events leading up to the Cancellation Nos. 92050302 (parent), 92050306,
`
`920503022.
`
`3.
`
`On April 20, 2008, Fido’s Fences filed an Amended Complaint and Jury Demand in
`
`connection with the matter Fido’s Fences, Inc. v. The Canine Fence Company, Case No.
`
`08-cv-754 in the U.S. District Court for the Eastern District of New York. Annexed
`
`hereto as Exhibit 1, is a copy of said Amended Complaint and Jury Demand as it was
`
`filed.
`
`4.
`
`At the time of the filing of the Amended Complaint and Jury Demand, the trademarks at
`
`issue in the Cancellation proceedings set forth herein above were not and had not been
`
`either asserted or challenged.
`
`5.
`
`On August 14, 2008, Defendant The Canine Fence Company (hereinafter Canine Fencel
`
`in the case Fido’s Fences, Inc. v. The Canine Fence Company, Case No. 08-cv-754, in the
`
`U.S. District Court for the Eastern District of New York, filed its Answer, Affirmative
`
`Defenses and Amended Counter-Claim to Amended Complaint. A copy of said filing is
`
`annexed hereto as Exhibit 2.
`
`6.
`
`In such filing, Canine Fence alleged counter-claims against Fido‘s Fences for breach of
`
`contract based on Fido’s Fences’ alleged failure to discontinue use of the marks that are
`
`at issue in the Cancellations referenced herein above. (Answer, p. 27, ll 51).
`
`Page 2- DECLARATION OF PANAGIOTA BETTY TUFARIELLO, ESQ. ON BEHALF OF PETITIONER FIDO’S
`FENCES. INC. IN RESPONSE TO THE T.T.A.B’S JANUARY 28. 2009, ORDER RE: CANCELLATION NOS.
`92050302 (PARENT), 92050306. 92050322
`
`

`
`7.
`
`With regard to the case Fido’s Fences, Inc. V. The Canine Fence Company, Case No. 08-
`
`cv-754, in the U.S. District Court for the Eastern District of New York, we note that all
`
`fact discovery has been completed, expert discovery is due on or before March 23, 2009,
`
`and a pre-trial conference is scheduled for May 5. 2009.
`
`8.
`
`Upon information and belief, Canine Fence is a licensee of the trademarks set forth in the
`
`Cancellations herein above. Also, upon information and belief, the owner of the said
`
`trademarks and licensor is Invisible Fence, Inc.
`
`9.
`
`Upon information and belief, Invisible Fence, Inc. (hereinafier Invisible Fence) is a
`
`corporation organized under the laws of the State of Delaware, having a principal place of
`
`business at 10427 Electric Avenue, Knoxville, Tennessee 37932.
`
`10.
`
`On January 22, 2009, Invisible Fence brought suit against Petitioner Fido’s Fences in the
`
`U.S. District Court for the Eastern District of Tennessee, Knoxville Division, i. e.
`
`
`Invisible Fence Inc. v. Fido’s Fences Inc., Case No. 3:09-cv-00025. A copy of Invisible
`
`Fence’s Complaint as filed is annexed hereto as Exhibit 3.
`
`1 1.
`
`
`On February 9, 2009, Fido‘s Fences filed a Motion to Dismiss the matter Invisible Fence
`
`
`Inc. v. Fido’s Fences Inc., Case No. 3:09—cv-00025, in the U.S. District Court for the
`
`Eastern District of Tennessee, Knoxville Division, for lack of personal jurisdiction and/or
`
`alternatively to move the case from Tennessee and consolidate it with the matter flcfi
`
`Fences, Inc. v. The Canine Fence Company, Case No. 08-cv-754, in the U.S. District
`
`Court for the Eastern District of New York.
`
`12.
`
`Petitioner Fido’s Fences is in agreement with the T.T.A.B.’s conclusion that the
`
`Page 3- DECLARATION OF PANAGIOTA BETTY TUFARIELLO, ESQ. ON BEHALF OF PETITIONER FIDO’S
`FENCES, INC. IN RESPONSE TO THE T.T.A.B’S JANUARY 28, 2009, ORDER RE: CANCELLATION NOS.
`92050302 (PARENT), 92050306, 92050322
`
`

`
`aforementioned Cancellations involve the same parties, similar marks and common
`
`questions of law and fact as those in the matters currently pending in the U.S. District
`
`Court for the Eastern District of New York and Eastern District of Tennessee.
`
`respectively. Accordingly, it has no objection to the consolidation of these proceedings
`
`pursuant to Fed. R. Civ. P. 42 (a).
`
`13.
`
`However. Petitioner Fido’s Fences hereby requires that the T.T.A.B. update its records to
`
`reflect that the consolidation and suspension of the proceedings are done so, not only
`
`because of the matter Fido’s Fences, Inc. v. The Canine Fence Company. Case No. 08-cv-
`
`754, in the U.S. District Court for the Eastern District of New York, but also of the matter
`
`
`Invisible Fence Inc. v. Fido’s Fences Inc., Case No. 3:09-cv-00025, pending in the U.S.
`
`District Court for the Eastern District of Tennessee, Knoxville Division.
`
`Respectfully Submitted,
`INTELLECTULAW
`
`THE LAW OFFICES OF P.B. TUFARIELLO, P.C.
`
` Dated:
`
`0 41 1102
`
`By:
`
`INTELLECTULAW
`
`The Law Offices of P.B. Tufariello, P.C.
`25 Little Harbor Road
`
`Mt Sinai, NY 11766
`
`631-476-8734 (Tel)
`
`631-476-8737 (Fax)
`24yellow’a)optonline.net (e-mail)
`Bettya?/intellectulaw.com (e-mail)
`
`Page 4- DECLARATION OF PANAGIOTA BETTY TUFARIELLO, ESQ. ON BEHALF OF PETITIONER FIDO’S
`FENCES. INC. IN RESPONSE TO THE T.T.A.B’S JANUARY 28, 2009, ORDER RE: CANCELLATION NOS.
`92050302 (PARENT), 92050306, 92050322
`
`

`
`CERTIFICATE OF SERVICE
`
`I hereby certify that this correspondence is being deposited with the United States Postal
`Service as Express Mail No. EH510786877US in an envelope addressed to: U.S. Patent and
`Trademark Office, Trademark Trial and Appeal Board, P.O. Box 1451, Alexandria, VA 22313-
`1451, on Friday, February 27. 2009. I also certify that on this date a copy of the foregoing
`DECLARATION OF PANAGIOTA BETTY TUFARIELLO, ESQ. ON BEHALF OF
`
`PETITIONER FIDO’S FENCES, INC. IN RESPONSE TO THE T.T..‘\.B.’S JANUARY
`28, 2009, ORDER RE: CANCELLATION NOS. 92050302 (PARENT), 92050306, 92050322
`dated Friday, February 27, 2009. has been forwarded to Respondent’s counsel via Express Mail
`No. EH5 l0786863US at the following address:
`
`R. Bradford Brittian
`
`Pitts and Brittian , P.C.
`P.O. Box 51295
`
`Knoxville. TN 37950-1295
`
` on Friday, February 27, 2009
`
`Panagiot Betty Tufar'
`
`
`llo Esq.
`
`Page 5- DECLARATION OF PANAGIOTA BETTY TL‘FARlELl.O, ESQ. ON BEHALF OF PETITIONER FIDO’S
`FENCES, INC. IN RESPONSE TO THE T.T.A.B’S JANUARY 28, 2009, ORDER RE: CANCELLATION NOS.
`92050302 (PARENT), 92050306, 92050322
`
`

`
`

`
`
`
`Cas 2:O8—cv—0O754~LDW—WDW Document ‘I7
`
`Filed 04/20/2008
`
`Page 1 of 31
`
`UNITED STATES DISTRICT COURT
`; EASTERN DISTRICT or NEW YORK
`
`FIDO’S FENCES, INC, a Corporation,
`
`Plaintiff,
`
`vi
`
`CASE NO. 2: 08-CV-754
`(Wexler, J.)
`(Wall, M.)
`
`THE CANINE FENCE COIVIPANY, a
`Corporation,
`
`AMENDED COMPLAINT
`AND JURY DEMAND
`
`Defendant
`
`Plaintifi‘, FIDO’S FENCES, INC., by and through its undersigned attorneys,
`
`INTELLECTULAW5" THE LAW OFFICES OF P.B. TUFARIELLO, P.C. and THE
`
`LAW FIRM OF BIRZON STRANG & BAZARSKY, LLP, on its behalf, and for its First
`
`_ Amended Complaint against the above-named Defendant THE CANINE FENCE
`COMPANY, pursuant tothis Court’s March 20, 2008 Order, alleges and avers as follows:
`
`1.
`
`Plaintiff‘, Fido’s Fences, Inc. (hcreinafier “ram, Fences”), is a doinestic
`
`EQES
`
`2.
`
`A
`
`corporation duly organized and existing under the laws of the state of New York,
`
`having a regular and established place of business at 405 West Main Street,
`
`Smithtown, New York. 1 1787-2612.
`
`Upon information and belief, Defendant The Canine Fence Company (hereinafier
`“ ’), is a foreign corporation duly organized and existing under the laws
`
`of the State of Connecticut, having a regular and established place of business at
`
`493 Danbury Road, Wilton Connecticut 06987 and duly authorized to do business
`
`in the State of New York.
`
`page 1 AMENDED COMPLAINT(FIRST); FIDO’S FENCES, INC. V. THE CANINE FENCE COMPANY;
`
`

`
`Cas 2:08—c:v-0O754—LDW—WDW Document 17
`
`Filed 04/20/2008
`
`Page 2 of 31
`
`,1 QESDIQTIQN AND EELS [12
`
`3.
`
`This Court has subject matterjurisdiction of this action on the following basis:
`
`a.
`
`Under 28 U.S.C. § 1331, because this action arises under the Laws of the
`
`United States, i.e., § 2 of the Sherman Anti-Trust Act, 15 U.S.C. §§ 2 et
`
`seq.; § 3 ofthe Clayton Anti-Trust Act, and 15 U.S.C. §§ 13, 14, 15, 22 &
`
`26.
`
`b.
`
`Under 15 U.S.C. § 9, because this action arises under the Laws of the
`
`United States, i.e., § 2 of the Sherman Anti-Trust Act, 15 U.S.C. §§ 2 et
`
`seq.; § 3 of the Clayton Anti-Trust Act, and 15 U.S.C. §§ 13, 14, 15, 22 &
`
`26.
`
`c.
`
`Under 28 U.S.C. § 1332 since there is complete diversity of citizenship
`
`between the parties and upon information and belief the matter in
`
`controversy exceeds $75,000;
`
`d.
`
`e.
`
`Under 28 U.S.C. § 2201, the Federal Declaratory Judgement Act; and
`
`Under 28 U.S.C. § 1367(a) since this action alleges state law violations that
`
`are part of the same case or controversy as those claims arising under the
`
`‘
`
`% 4.
`E
`
`laws of the United States.
`
`Personal jmisdiction over Defendant is vested in this Court in view of the fact that,
`upon information and belief, the Defendant is a foreign corporation registered with
`
`the Secretary of the State of New York to do business within the state of New
`
`York, and claims alleged arise from acts and conduct Defendant purposefiilly
`
`directed toward New York consumers.
`
`5.
`
`E
`
`Venue is proper in the United States District Court for the Eastern District ofNew
`York, pursuant to 28 U.S.C. § 1391 since a substantial portion ofthe harm sought
`
`to be avoided, and a substantial part of the events and omissions giving rise to the .
`
`page 2 AMENDED COMPLAINT(FIRS'I'); I-'lD0’S FENCES, INC. V. THE CANINE FENCE COMPANY;
`02: 08 1
`
`

`
`Cas 2:O8—cv—OO754—LDW—WDW Document 17
`
`Filed 04/20/2008
`
`Page 3 of (31
`
`claims asserted herein, occurred within this district
`
`FA T
`
`MM N TO ALL CLAIM
`
`L
`
`FID ’ FE C S-BAC
`
`R
`
`FA TS
`
`Fido’s Fences was established in 1991.
`
`Fido’s Fences specializes in the sale and installation of electronic pet containment
`
`systems and pet obedience training.
`
`Fido’s Fences electronic pet containment installation and service teams include Pet
`
`Consultants who help design electronic pet containment systems, suitable to fit the
`
`unique needs of each family and its pet(s), respectively.
`
`Fido’s Fences electronic pet containment systems can be used both indoors and
`
`outdoors.
`
`Fido’s Fences outdoor pet containment systems can accommodate a pet of any
`
`size, on a land parcel of any size, i.e., fiom a very small parcel, to a parcel of
`
`multiple acres, irrespective of the land parce1’s terrain or landscaping.
`
`Unlike unsightly and expensive traditional fencing, Fido’s Fences’ outdoor
`
`electronic pet containment systems go anywhere: under water, up hills, through
`wooded areas, and even across driveways.
`‘
`
`12.
`
`Similarly, Fido’s Fences’ indoor electronic pet containment systems can be custom
`
`designed to accommodate a pet in any room, or any number of rooms and to keep
`
`the pet off pieces of furniture or entirely away from specific rooms.
`
`13.
`
`Fido’s Fences’ electronic pet containment systems are concealed in such a manner
`
`that no can see or perceive that the systems are in place.
`
`On the other hand, Fido’s Fences electronic pet containment systems combined
`
`with Fido’s Fences’ pet obedience training offered by its highly specialized and
`
`certified trainers are extremely effective at teaching the pets their boundaries.
`
`

`
`Cas
`
`2:08—cv-00754—LDW—WDW Document 17'
`
`Filed 04/20/2008
`
`Page4of31
`
`15.
`
`Fido’s Fences’ trainers use play, positive reinforcement, repetition and Fido’s
`
`Fences’ specialized flag training system to help the pets learn their new
`
`boundaries. Their techniques lmve been approved by veterinarians, behaviorists,
`
`and trainers for their safe and loving approach to training, which allows the pets to
`
`realize their full potential while simultaneously eliminating behavioral problems.
`
`L DEFEND
`
`-BA K R
`
`FA TS
`
`16.
`
`Upon information and belief Defendant has operated and maintained a similar
`
`business to that of Fido’s Fences. Specifically, Defendant The Canine Fence
`
`Company".
`
`a.
`
`is the exclusive Distributor of and specializes in the sale and installation of
`
`electronic pet containment systems and pet training for proper use thereof.
`
`b.
`
`has Pet Consultants who visits the pet’s home and helps design electronic
`
`pet containment systems, suitable to fit the unique needs of each pet, and
`
`its family, respectively.
`
`c.
`
`has professional pet trainers who, after the installation of the electronic pet
`
`containment system, provide one-on-one training for the pet, using a
`
`training protocol that introduces the pet to the system. The pet is trained to
`
`recognize it boundaries with visual flag cues and audible tones.
`Upon information and belief, the electronic pet containment systems, exclusively
`distributed by the Defendant, are manufactured by the Invisible Fence Company,
`
`17.
`
`’
`
`Inc. Of Wayne, Pennsylvania (hereinafter “I_F_(;”).
`
`l 18.
`E
`
`Upon information and belief, IFC’s electronic pet containment systems are covered
`by United States Letters Patent No. 3,753,421 entitled METHOD AND
`
`APPARATUS FOR CONTROLLING AN ANIMAL (hereinafier ‘mi
`
`patgnf’), of which, upon information and belief, IFC is the assignee and owner.
`
`

`
`Cas 2:08-c:v—OO754—LDW—WDW Document 17
`
`Filed 04/20/2008
`
`Page 5 of 31
`
`A copy of the ’42l patent is annexed hereto as Exhibit 1.
`
`Upon information and belief the IFC electronic pet containment systems comprise
`
`antenna wiring, a radio receiver mounted on a collar designed to be worn by a pet,
`
`and a radio transmitter.
`
`20.
`
`Upon information and belief, the installation process for an outdoor installation of
`
`IFC’s electronic pet containment systems comprises the following steps: digging a
`trench around the perimeter ofthe territory within which the pet will be allowed to
`
`roam and run freely in; laying and burying the radio antenna within the trench;
`
`installing the radio transmitter in the pet owner’s home; connecting the antenna
`
`wiring to the radio transmitter within the pet owner’s home; placing and securing
`
`the collar-bearing receiver on the pet; and activating the system. As the pet gets
`close to the buried antenna wire at the edge ofthe perimeter ofthe territory, the
`
`receiver is activated by the transmitter to emit a warning sound which causes the
`
`dog to step back and avoid getting static correction.
`
`21.
`
`The legal but limited monopoly afforded to IFC and to the Defendant by the ’42l
`
`patent for IFC’s electronic pet containment systems expired in 1990.
`
`i 22.
`
`Upon information and belief, Defendant is an exclusive distributor of the IFC
`
`electronic pet containment systems within seven states located in the Northeastern
`
`United States and the Southeastern region of the state ofNew York, with the
`
`authority to grant dealerships to third parties.
`
`L THE DEFENDANT’S ANTI-QQMPETITIVE AQTIQNS
`
`Upon information and belief, the Defendant has monopolized and engrossed
`
`approximately 95% of the substantial interstate trade and commerce, in the
`
`Northeastern United States, relating to the purchase, sale, shipment and installation
`
`of electronic pet containment systems.
`
`;
`P383
`02:0 5
`
`

`
`Cas 2:08—Cv—00754-LDW-WDW Document 17
`
`Filed 04/20/2008
`
`Page 6 of :31
`
`24.
`
`Beginning on or about the time that the ’42l patent was about to expire, and since
`
`then, the Defendant has continuously engaged in a concerted pattern of behavior
`
`in restraint of the trade and commerce among at least seven states in the
`
`Northeastern United States, including the states of New York and Connecticut,
`
`relating to the materials, goods, devices, and services used in the installation and
`
`service of electronic pet containment systems.
`
`1 25.
`
`As part of its concerted pattern of behavior in restraint of the trade and commerce
`
`relating to electronic pet containment systems, the Defendant has:
`
`a.
`
`successfully acquired Defendant-induced, financially challenged, electronic
`
`pet containment businesses in a rapidly growing, highly profitable industry,
`
`for the purpose of, and in concert with other acquisitions, manipulating and
`
`controlling the market for electronically pet containment systems, by:
`
`i.
`
`engaging in predatory practices such as placing unreasonable
`demands on, misrepresenting situations to, freezing or shutting down
`
`of, and refusing shipment of electronic pet containment systems to
`
`the fledgling, financially challenged, electronic-pet-containmene
`
`systems businesses;
`
`ii.
`
`manipulating the wholesale pricing of its electronic pet containment
`
`systems in a manner that resulted in price fixing to both the
`
`Defendant—induced, financially challenged, businesses and the
`consumers; and
`I
`
`calculating that the cost of initiating litigation for the purpose of
`
`protecting themselves from Defendant’s predatory practices would
`
`be so high that it would force (and it did) the Defendant-induced,
`
`financially challenged businesses to give up all controlling interest to
`
`the Defendant without any fight and without any compensation.
`
`

`
`Cas 2:08-Cv-OO754—LDW—WDW Document 17
`
`Filed 04/20/2008
`
`Page 7 of 31
`
`b.
`
`wilfully, intentionally and successfully restrained trade through agreements
`
`that improperly extend the life of the ’42l patent beyond its 1990 expiration
`
`date by:
`
`i.
`
`requiring all of its nonexclusive dealers to purchase all of their
`
`electronic pet containment systems only from the Defendant;
`
`requiring all of its dealers to purchase all replacement components
`
`for both their installed and uninstalled electronic pet containment
`
`systems only from the Defendant;
`
`restraining and preventing its nonexclusive dealers from marketing,
`
`offering to sell, selling and installing electronic pet containment
`
`systems from other distributors and other manufacturers; and
`
`iv.
`
`restraining and preventing its nonexclusive dealers from marketing,
`
`offering to sell, selling and installing electronic pet containment
`
`systems from other distributors and other manufacturers, anywhere
`
`in the United States, even after Defendant’s Dealership agreements
`
`with its dealers had(ve) been terminated.
`
`c.
`
`willfully, intentionally and successfully restrained trade by manipulating its
`
`prices to its dealers which resulted in price fixing to consumers. And,
`
`d.
`
`wilfully, intentionally and successfiilly restrained trade through improper
`
`use of warranties to implement and enforce vertical tying agreements.
`
`26.
`
`All of the foregoing acts of the Defendant, were committed with the purpose and
`
`effect of preventing, reducing and
`
`competition in, constitute(d) an attempt
`
`to monopolize, have in fact achieved monopolization of, and will continue to
`
`monopolize the market of electronic pet containment systems,
`
`page
`02: 0 .
`
`‘ AMENDED COMPLAINT(FIRST); FIDO’S FENCES, INC. V. THE CANINE FENCE COMPANY;
`I
`
`

`
`Cas 2:O8—Cv—OO754—LDW—WDW Document 17
`
`Filed 04/20/2008
`
`Page 8 of 31
`
`_I_V_,
`
`DEFENDANT CANINE
`T
`TI N
`’
`FIDO’S F
`FENCE COMPANY AND IT§ BREAKDOWN
`
`27.
`
`On or about June 30, 1989, the principal of Fido’s Fences’ Mr. William Coden
`
`entered into a first Distributor Dealer Agreement with the Defendant. On or about
`
`December 1, 1996, Fido’s Fences entered into a second Distributor Dealer
`
`Agreement (hereinafter both agreements collectively referred to as “t_l_1_e
`
`Agreement”). A copy ofeach the Agreements is annexed hereto as Exhibit 2 and
`
`Exhibit 3, respectively. With the exception of the names of the parties, the
`
`Agreements are identical.
`
`As a result of the Agreement, Fido’s Fences became a nonexclusive dealer of the
`
`Defendant for the purpose of selling, installing, and servicing of IFC electronic pet
`
`containment systems on Long Island.
`
`The Agreements led to the establishment of a profitable and long-standing
`
`relationship between Fido’s Fences and Defendant; a relationship that has been in
`
`force for more than l8 years, and which as a result established clearly set accepted
`
`business practices between both Fido’s Fences and Defendant.
`
`30.
`
`Such business practices included Fido’s Fences’ placement of orders with
`
`Defendant for IFC products; Defendant’s acceptance of such orders, extension of
`
`credit to Fido’s Fences by Defendant for such orders; the shipment of the product
`
`to Fido’s Fences; sale of the product under the FIDO’S FENCES trademark; and '
`
`Fido’s Fences’ payment for shipments made by Defendant on a regular basis.
`
`Historically, Fido’s Fences was offered a reasonable amount of credit and time to
`
`maintain its account with the Defendant.
`
`us5°
`
`A typical payment schedule showing Fido’s Fences payments for the time period
`
`January 1, 2007 through January 17, 2008 is annexed hereto as Exhibit 4.
`
`During the more than 18 years of Fido’s Fences conducting business with the
`
`i
`page 8 ; AMENDED CONIPLAINTGIRST); FIDO'S FENCES, INC. V. THE CANINE FENCE COMPANY;
`02: 0 v-754 (LDW)
`'
`
`1
`
`

`
`Cas 2:O8—c:v—O0754—LDW—WDW
`
`Document 17
`
`Filed 04/20/2008
`
`Page 9 of 31
`
`Defendant, while the Defendant would occasionally remind Fido’s Fences to make
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`payments, the Defendant never complained or intimated that Fido’s Fences’
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`method of payment was unacceptable or that it needed to change.
`
`As a result, Fido’s Fences came to understand that its method of payment with
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`some amount always in arrears was totally acceptable to Defendant and that
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`Defendant would (and in fact did)- continue to extend credit to Fido’s Fences for
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`shipments made.
`
`Fido’s Fences relied on Defendant’s acceptance of Fido’s Fences method of
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`payment and as the Defendant never objected to this well established relationship.
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`On the basis of its reliance, Fido’s Fences continued to expand and grow its sales
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`of IFC electronic pet containment systems under the FIDO’S FENCES mark (not
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`under IFS’ marks), so much so that it established itself as one of the largest dealers
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`of the Defendant in the northeastern United States, and upon information and
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`belief the second largest dealer in the United States.
`
`” 37.
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`In fact, on or about the end of 2007, the Defendant nominated Fido’s Fences for
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`“Super Dealer of the Year.” Further, Defendant rewarded Fido’s Fences for its
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`outstanding performance in 2007 with its program “$10 for 10's”. With this
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`program Fido’s Fences received $10 from Defendant for each “10" Fido’s Fences
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`received on Overall Performance from Fido’s Fences customers who had
`
`completed the surveys Defendant had sent out in the year 2007. Copies of
`
`correspondence Defendant sent to Fido’s Fences regarding the nomination and the
`
`reward of $570.00 under Defendant’s “$l0 for l0's” are annexed hereto as Exhibit
`
`5.
`
`; 38.
`
`As a result, Fido’s Fences has developed a significant customer list, a number of
`
`valuable trade secrets in connection with its business, and has created FIDO’S
`
`FENCES “brand loyalty.”
`
`

`
`2:O8—cv~OO754-LDW—WDW Document ‘I7
`
`Filed 04/20/2008
`
`Page 10 of 31
`
`The foregoing notwithstanding, on January 17, 2008, Defendant unilaterally and
`
`arbitrarily terminated the Agreement and placed Fido’s Fences’ account on hold
`
`for Fido’s Fences’ alleged default to remit payment on time. A copy of
`
`Defendant’s letter of January 17, 2008 attempting to terminate its Agreement with
`
`Fido’s Fences for the alleged default is annexed hereto as Exhibit 6.
`
`Based on the parties’ accepted business practices over the past 18 years, Fido’s
`
`Fences was not in default and has never been in default at any time.
`
`Defendant’s letter of January 17, 2008 was the very first time that Fido’s Fences
`
`was informed that Fido’s Fences’ was in default or that its payment schedule was
`
`considered a default.
`
`A 42.
`
`Defendant clearly intended for the Agreement to be terminated, because Defendant
`
`sent the letter during a time that it knew Fido’s Fences would not be able to
`
`appropriately respond, i.e., during the time that its principals were away on a
`
`family vacation. The letter provided only five days for Fido’s Fences to cure, all
`
`five days comprising a holiday weekend, during which Fido’s Fences would not be
`
`able to cure; and asked for payment during a period that is traditionally the worst
`
`time for cash flow in Fido’s Fences’ and Defendant’s business.
`
`43.
`
`The letter was dated Thursday January 17, 2008. However it arrived at Fido’s
`
`Fences’ during Martin Luther King’s Birthday, a National Holiday and celebrated
`
`this year on Monday, January 21, 2008. Thus, Fido’s Fences was not able to
`
`respond and cure during such five day cure period as provided in Defendant’s
`
`January 17, 2008-letter. Accordingly, Fido’s Fences considers the Agreement
`
`terminated
`
`Fido’s belief that the Agreement has been terminated is further bolstered by the
`
`fact that potential new customers are no longer directed to Fido’s Fences through
`
`the Internet.
`
`i
`page 14; - AMENDED COMPLA.INT(FlRST); FIDO’S FENCES, INC. V. THE CANINE FENCE COMPANY;
`
`
`
`

`
`Cas
`
`2:O8—cv—OO754—LDW—VVDW Document '1 7
`
`Filed 04/20/2008
`
`Page 11 of 31
`
`Prior to the termination of the Agreement, a customer searching for Fido’s Fences
`
`
`on the internet would be directed to www.caninefence.com whereupon the
`
`customer would be prompted to enter their zip code. Upon submission of the zip
`
`code the dealer name, telephone number and contact information that would
`
`appear, was that of Fido’s Fences.
`
`’ 46.
`
`Subsequent to the termination of the Agreement, however, upon‘ submission of the
`
`zip code, the dealer name, telephone number and contact information that appears
`
`are no longer those of Fido’s Fences but those of the Defendant.
`
`47.
`
`Defendant’s willful, arbitrary, commercially unreasonable and unilateral
`
`termination of the Agreement has caused Fido’s Fences great damage, the
`
`magnitude of which Fido’s Fences is still ascertaining.
`
`48.
`
`As a result of the termination of the Agreement, Defendant is no longer shipping
`
`orders and no longer directing customers to Fido’s Fences. Thus, Fido’s Fences is
`
`experiencing a tremendous loss of revenue due to lost sales.
`
`49.
`
`As a further result of the termination of the Agreement, Fido’s Fences is no longer
`
`able to service existing customers or ship existing customers consumable or
`
`replacement components.
`
`50.
`
`Fido’s Fences is unable to honor the warranties for systems that have already been
`
`sold and installed at customers’ facilities. Nor can it ship equipment back to the
`
`Defendant for the issuance of credit.
`
`g 51.
`
`Consequently, not only is Fido’s Fences losing revenue from existing customers
`
`but it will suffer great harm to its good will and reputation.
`
`Fido’s Fences’ inability to honor the warranties, is exposing Fido’s Fences to
`
`potential claims for breach of warranty.
`
`Fido’s Fences is unable to mitigate any of the damages accrued as a result of the
`
`termination of the Agreement due to language in the Agreement that prohibits
`
`- AMENDED COMPLA]NT(FIRST); FIDO’S FENCES, INC. V. THE CANINE FENCE COMPANY;
`.754 (LDW)
`
`»
`
`page 1
`
` ~
`
`

`
`2:O8—cv—()0754~LDVV-WDW Document17
`
`Filed 04/20/2008
`
`Page 12 of 31
`
`Fido’s Fences from sourcing goods fi'om third parties for the servicing of existing
`
`customer accounts.
`
`54.
`
`Specifically, Section (at) of the Agreement partly states as follows: “ Dealer
`
`agrees: (I) to purchase Invisible Fence Systems, components thereof and similar
`
`systems solely fiom the Company.” Further Section l6(b) partly states as follows:
`
`“Dealer will not, without the written consent of Company, conduct or engage in,
`
`either directly or indirectly, as owner, officer, employee or otherwise any business
`
`similar to that covered by this Agreement within the Continental United States.
`
`during the term of this Agreement and for a period of two (2) years after the date
`
`of termination.”
`
`Following, the Defendant’s January 17, 2008, letter of termination, Defendant
`
`contacted Fido’s Fences to ask for information regarding Fido’s Fences so that
`
`they can do an evaluation and make a proposal to allegedly purchase Fido’s
`
`Fences.
`
`56.
`
`Upon information and belief, Defendant’s actions set forth herein above is part of
`
`Defendant’s plan to take over Fido’s Fences together with all of Fido’s Fences
`
`customer lists and trade secrets.
`
`57.
`
`Upon information and belief, all of the foregoing are part of a pattern of behavior
`
`that Defendant has adopted and implemented for the purpose of engaging in
`
`hostile takeovers of dealers once they have established the sale of electronic pet
`
`containment systems in a particular geographic area.
`All ofthe foregoing acts of the Defendant, were committed with the purpose and
`
`58.
`
`effect of preventing, reducing and limiting competition in, constitute(d) an attempt
`to monopolize, have in fact achieved monopolization of, and will continue to
`
`monopolize the market of electronic pet containment systems,
`
`

`
`Cas 12IO8—cv—OU754»-LDW~WDW Document 17
`
`Filed 04/20/2008
`
`Page 13 of 31
`
`\_l,
`
`EFFE T N INTERSTATE TRADE
`
`CO
`
`RCE
`
`Upon information and belief, the Defendant’s sales of electric pet containment
`
`systems amount to approximately $25,000,000 per year.
`
`The Defendant orders its electronic pet containment systems from one or more
`
`manufacturing assembly sites in the United States or elsewhere in the world, and
`
`distributes these electronic pet containment systems, throughout its distributorship
`
`territory within seven states in the Northeastern United States, including the state
`
`of Connecticut and the southeastern region of the state of New York.
`
`61.
`
`Thus, Defendant’s activities, as alleged herein above, substantively affect interstate
`
`commerce as well as foreign commerce, in the market of electronic pet
`
`containment systems.
`
`XL
`
`THE RELEVAEI PRQDQQT MARKET
`
`- 62.
`
`63.
`
`The relevant product market is the market consisting of electronic pet containment
`systems.
`A
`
`As was set forth herein above, electronic pet containment systems are used
`
`primarily by dog owners for the purpose of allowing their dogs to freely run and
`
`cavort within a particularly designated territory, while at the same time preventing
`
`them from nmning into busy streets.
`
`Thus, electronic pet containment systems promote the dogs’ health, as well as
`
`protect the dogs by keeping them out of harm’s way.
`
`Electronic pet containment systems are sold both at retail and through dealer
`
`installers. In any sale though, they are expensive. Even those of the products that
`
`are sold at retail cost more than $100.00 per system.
`Electronic pet containment systems comprise antenna wiring, a radio receiver
`
`66.
`
`mounted on a collar, and a radio transmitter. As such, they require sophisticated
`
`

`
`Cas 2:O8—cv—OO754—LDW—WDW Document 17
`
`Filed 04/20/2008
`
`Page 14 of 31
`
`manufacturing facilities.
`
`67.
`
`The installation of electronic pet containment systems’ installation comprises the
`
`following steps: digging a trench around the perimeter of the territory within
`
`which the dog will be allowed to roam and run fieely in; laying and burying the
`
`radio antenna within the trench; installing the radio transmitter in the dog owner’s
`
`home; connecting the antenna wiring to the radio transmitter within the dog
`
`owner’s home; placing and securing the collar-bearing receiver on the dog; and
`
`activating the system. As the dog gets close to the buried antenna wire at the edge g
`
`of the perimeter of the territory, the receiver is activated by the transmitter to emit
`
`a warning sound which causes the dog to step back and avoid getting static
`
`correction
`
`On the basis for the foregoing, it

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