UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA LTJ Enterprises, Inc., a Minnesota Corporation. Plaintiff, COMPLAINT v.

JURY TRIAL DEMANDED Custom Marketing Co., LLC, a Missouri Limited Liability Company, Defendant. Plaintiff LTJ Enterprises, Inc., for its Complaint against Defendant Custom Marketing Co., LLC, states and alleges as follows: THE PARTIES 1. Plaintiff LTJ Enterprises, Inc. (Plaintiff) is a Corporation of Minnesota having a

Court File No. _________________

place of business at 24480 State Highway 89, Roseau, Minnesota 56751. 2. On information and belief, Defendant Custom Marketing Co., LLC

(Defendant), is a Limited Liability Company of Missouri having a place of business at 1126 West Main Avenue, West Fargo, North Dakota 58078. JURISDICTION AND VENUE 3. Jurisdiction over this action and venue are founded upon 28 U.S.C. 1331, 1332

and 1338, and pendent claim jurisdiction. 4. Personal jurisdiction in the United States District Court for the District of

Minnesota is proper because Plaintiff is a resident of Minnesota. Defendant maintains an assumed name, and registered office in Minnesota. In addition, Defendant has been doing

-1-

business in Minnesota and has committed violations of United States Patent laws in the District of Minnesota. 5. Venue is proper in the District of Minnesota pursuant to 28 U.S.C. 1391 in that

Plaintiff is a resident of Minnesota, Defendant does business in Minnesota, and a substantial part of the events or omissions giving rise to Plaintiff's claims occurred within the District of Minnesota. FACTUAL ALLEGATIONS 6. Lenard Johnson and his son Thomas Johnson invented a unique bin level indicator

used to provide a person with information as to the level of bulk material in a bin, hereafter "Plaintiff's bin level indicators." 7. Plaintiff has continuously manufactured, marketed, and sold Plaintiff's bin level

indicators since 1997. 8. U.S. Patent No. 6,067,927 (herein "the '927 Patent") which discloses Plaintiff's

bin level indicators issued on May 30, 2000. The entire right, title, and interest has been assigned to Plaintiff. 9. Plaintiff has expended significant resources, time, effort, and expense to promote

and popularize Plaintiff's bin level indicator, and as a result of these activities consumers and users of bins have come to recognize the trade dress of Plaintiff's bin level indicators, and rely upon the trademarks to identify Plaintiff as the source of Plaintiff's bin level indicators. 10. The packaging for Plaintiff's bin level indicators displays the '927 Patent number,

Plaintiff's trademarks, and Plaintiff's business name.

-2-

11.

Plaintiff is the owner of U.S. Trademark Registration Number 3,900,336

LEVALERT for Plaintiff's bin level indicators. 12. Defendant has purchased from Plaintiff a substantial number of Plaintiff's bin

level indicators, and marketed these bin level indicators under the trademark LEVALERT to bin manufacturing companies and bin users since 1997. Defendant, since at least May 30, 2000, had notice of Plaintiff's '927 Patent. 13. 2012. 14. Defendant has made, advertised, sold, and continues to sell bin level indicators in Defendant stopped purchasing Plaintiff's bin level indicator from Plaintiff in

the same marketplace as Plaintiff's bin level indicators. 15. Defendant's bin level indicators include Plaintiff's proprietary invention as defined

in the '927 Patent. 16. Plaintiff and Defendant have no currently existing agreements concerning

Plaintiff's property under the '927 Patent. 17. Defendant has not acquired any rights or license to make, use or sell bin level

indicators that include Plaintiff's proprietary bin level indicator technology nor rights concerning the '927 Patent. COUNT I PATENT INFRINGEMENT 18. Plaintiff restates, realleges, and reasserts each and every allegation set forth in the

preceding paragraph.

-3-

19.

Upon information and belief, Defendant has infringed, contributed to

infringement, and continues to infringe one or more claims of the '927 Patent by its manufacture, use, offer for sale and sale of its bin level indicators. 21. Despite Defendant's knowledge of the '927 Patent, Defendant designed,

manufactured and marketed its bin level indicators in Minnesota and throughout the United States. 22. On information and belief, Defendant's infringement of the '927 Patent has been

intentional, willful, wanton and utterly unconcerned about the consequences or reckless. 23. As a result of Defendant's infringement of the '927 Patent, Plaintiff has suffered

and continues to suffer substantial injury, including irreparable injury and monetary damages unless Defendant is enjoined by this Court from infringing the '927 Patent and contributing to the infringement thereof. COUNT II TRADE DRESS INFRINGEMENT 15 U.S.C. 1125(a) 24. Plaintiff restates, realleges, and reasserts each and every allegation set forth in the

preceding paragraph. 25. The appearance of Plaintiff's bin level indicators is unique because of its trade

dress, including, but not limited to, its coordinated arrangement of shapes, sizes, and other features. By reason of its unique and unusual appearance, the trade dress of Plaintiff's bin level indicators has become distinctive in the bin level indicator industry. On information and belief, it has also acquired a secondary meaning whereby the trade and consuming public recognize the

-4-

non-functional features of such trade dress and associate it with Plaintiff's high quality bin level indicator. 26. Defendant has copied, and on information and belief, intends to continue copying

the trade dress of Plaintiff's bin level indicators by manufacturing, marketing, distributing, and selling a bin level indicator which is substantially similar and likely to cause confusion in the marketplace with Plaintiff's bin level indicator. 27. Defendants use of the trade dress of Plaintiff's bin level indicator is likely to cause

confusion, mistake, or deception as to the existence of any affiliation, connection, or association between Plaintiff and Defendant, or as to the origin, endorsement, or sponsorship or approval of Defendant's bin level indicator by Plaintiff. 28. Defendant's use of the trade dress of Plaintiff's bin level indicator is without the

authority or permission of Plaintiff. 29. Plaintiff has no control over the quality or workmanship of bin level indicators

manufactured and sold by Defendant. 30. Any inferior bin level indicators manufactured and sold by Plaintiff will tend to

tarnish and injure the valuable goodwill of Plaintiff and Plaintiff's bin level indicator. 31. Defendant's appropriation of Plaintiff's bin level indicator trade dress is intended

to appropriate Plaintiff's valuable goodwill and to pass off Defendant's bin level indicator as having some association, connection, or relationship with Plaintiff. Such conduct will allow Defendant to benefit from or utilize the substantial research, development, advertising expenditures, promotional efforts, and sales of Plaintiff, thereby misappropriating the goodwill of Plaintiff.

-5-

32.

Defendant's direct and willful trade dress infringement will cause irreparable

harm to Plaintiff unless such conduct is enjoined by the Court as Plaintiff has no other remedy at law. 33. As a result of Defendant's trade dress infringement, Plaintiff has suffered and will

continue to suffer monetary damages in an amount to be determined at trial. COUNT III TRADE MARK INFRINGEMENT 34. Plaintiff restates, realleges, and reasserts each and every allegation set forth in the

preceding paragraph. 35. Defendant's unauthorized use of Plaintiff's trademarks have caused and is likely to

continue to cause confusion, or to cause mistake, or to deceive consumers as to source, sponsorship, or approval of Defendant's bin level indicators by Plaintiff. 36. The acts of Defendant in using and promoting bin level indicators with the

Plaintiff's trademarks for bin level indicators infringes Plaintiff's trademark rights under the Lanham Act. 37. Defendant has acted deliberately and willfully in attempting to trade upon the

goodwill associated with Plaintiff's bin level indicators and trademarks. 38. Upon information and belief, Defendant will continue such acts of trademark

infringement unless enjoined by this Court, and Plaintiff has no adequate remedy at law. 39. Plaintiff has been damaged as a result of Defendants trademark infringement in an

amount to be proven at trial.

-6-

COUNT IV VIOLATION OF MINNESOTA DECEPTIVE TRADE PRACTICES ACT Minn. Stat. 325D.43 et seq. 40. Plaintiff restates, realleges, and reasserts each and every allegation set forth in the

preceding paragraph. 41. Defendant's conduct as described herein is in violation of the Minnesota

Deceptive Trade Practices Act, Minn. Stat. 325D.43 et seq. 42. Upon information and belief, the violation of the Minnesota Deceptive Trade

Practices Act constitutes a willful and intentional activity of Defendant in violation of Plaintiff's rights, which rights were known to Defendant prior to Defendant's use and promotion of the Defendant's bin level indicator. 43. Plaintiff has been damaged as a result of Defendant's violation of the Minnesota

Trade Practices Act, and is entitled to damages in an amount to be proven at trial, including an award of attorney's fees and expenses, as well as an injunction prohibiting such conduct. COUNT V UNFAIR COMPETITION 44. Plaintiff restates, realleges, and reasserts each and every allegation set forth in the

preceding paragraph. 45. Defendant's conduct described herein constitutes unfair competition under the

Lanham Act and state law. 46. Plaintiff has been damaged as a direct result of Defendant's unfair competition in

an amount to be proven at trial.

-7-

COUNT VI INTERFERENCE WITH ADVANTAGEOUS BUSINESS RELATIONSHIP 47. Plaintiff restates, realleges, and reasserts each and every allegation set forth in the

preceding paragraph. 48. Plaintiff has business relationships with its customers for supplying them with

Plaintiff's bin level indicators. 49. 50. Plaintiff's customers have purchased and used Plaintiff's bin level indicators. Defendant and its employees and agents have knowledge of Plaintiff's customers

and business relationships with Plaintiff regarding Plaintiff's bin level indicator. 51. On information and belief, Defendant and its employees and agents have

unlawfully and intentionally interfered with Plaintiff's business relationships with its customers. 52. As a result thereof, Plaintiff has suffered serious harm to its business reputation,

loss of goodwill, and has been damaged in an amount to be determined at trial. PRAYER FOR RELIEF WHEREFOR, based upon the foregoing, Plaintiff seeks a judgment in his favor and against Defendant on all claims in this matter, and respectfully requests that the Court issue the following relief against Defendant: 1. A judgment enjoining and restraining Defendant, its agents, servants, employees,

attorneys, and all persons in active consort or participation with, through, or under them, at first, during the pendency of this action, and thereafter perpetually; (a) From using in any manner the trade dress of Plaintiff's bin level indicators

or any design or words confusingly similar thereto, or confusingly similar to any of

-8-

Plaintiff's trademarks, alone or in combination with any other word or words, or on or in connection with advertising, offering for sale, or sale of any bin level indicator; (b) From passing off or inducing or enabling others to sell or pass off any

services or products not those of the Plaintiff, as or services or products of Plaintiff; (c) From committing any other acts calculated to cause members of the trade

or the public at large to believe that the Defendant's services or products are the Plaintiff's services or products or are sponsored by, associated with, related to, otherwise connected with or in some way endorsed or promoted by Plaintiff, or under the supervision or control of Plaintiff, and from otherwise competing unfairly with Plaintiff in any manner. 2. An order requiring Defendant to immediately alter or deliver up to this court or to

Plaintiff any and all signs, containers, labels, packaging material, printing plates or maps, stationary, bill heads, advertising matter and materials used in the preparation thereof, whether in Defendants possession or in their control, and bearing the trade dress of Plaintiff's bin level indicators or any designs and trademarks of Plaintiff's bin level indicators, or any variation thereof. 3. An order requiring the Defendant to eliminate at the earliest possible time all

directory listings or public information (e.g. internet webpages) of the name or mark "Levalert"; 4. An order requiring Defendant, within thirty (30) days after service of notice of

entry of such judgment or any injunction issued pursuant thereto, to file with the court and serve upon Plaintiff's counsel a written report under oath setting forth in detail the manner in which Defendant complied with the court's orders entered pursuant to paragraphs through 3 above.

-9-

5.

An order requiring Defendant to account for and pay over to Plaintiff all damages

sustained by Plaintiff, and all profits realized by Defendant by reason of Defendant's unlawful acts complained of herein, and also ordering the amount of damages found by the court to be increased three times, as provided by law (15 U.S.C. 1117). 6. 7. 8. An order that the '927 Patent is valid; An order that Defendant has infringed the '927 Patent; An order that Defendant, its respective agents, servants, employees, and divisions

and those persons in active concert or participation with them, be enjoined from infringing the '927 Patent and contributing to infringement thereof, pursuant to 35 U.S.C. 284; 9. an Order that Defendant be ordered to pay Plaintiff all damages, together with

costs and prejudgment interest suffered by Plaintiff as a result of Defendant's infringement of the '927 Patent pursuant to 35 U.S.C. 284; 10. an order that the judgment for damages for infringement of the '927 Patent be

trebled as authorized by 35 U.S.C. 284; 11. an order that a permanent injunction enjoining Defendant, its officers, employees,

agents, servants, and all others acting under or through Defendant directly or indirectly, and preventing Defendant from: a. making, using, offering for sale and selling bin level indicators that

infringe the '927 Patent; b. c. contributing to the infringement of the '927 Patent; and otherwise engaging in the acts identified in this Complaint;

- 10 -