Case 2:15-cv-09137 Document 1 Filed 06/23/15 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS
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) JURY TRIAL DEMANDED
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MARK ROSS,
Plaintiff,
v.
MARK WEISER and PON DESIGN LLC,
Defendants

ORIGINAL COMPLAINT
Plaintiff Mark Ross complains as follows against defendants Mark Weiser and
Pon Design LLC (collectively, Defendants).
PARTIES
1.

Plaintiff Mark Ross is a citizen of Kansas with a principal residence at 8200 W.

58th Street, Merriam, KS 66202.

2.

On information and belief, Defendant Mark Weiser is a resident of Illinois with a

principal residence at Apartment #3, 913 West Cullerton Street, Chicago, Illinois 60608.
3.

On information and belief, Defendant Pon Design LLC is a limited liability

company conducting business in the State of Kansas through the offering of products and
services on the website http://www.ponitup.com/, which is accessible through the Internet by
residents of Kansas.
4.

On information and belief, Defendant Pon Design LLC is organized and existing

under the laws of the State of Illinois, with its principal place of business at 913 W. Cullerton,
Chicago, IL 60608, in care of registered agent Zareefa Flener, Esq., 300 W. Adams St., Ste. 840,
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Chicago, Illinois 60606.

5.

On information and belief, the Defendants and/or one or more of their affiliates

provide or participate in providing pon pins and other related products including but not
limited to the Pon 50 Pack.1
6.

On information and belief, Defendants assert certain of its products are made in

the USA and are patent pending internationally.

JURISDICTION
7.

This Court has subject matter jurisdiction under 28 U.S.C. 1331 (federal

question); 28 U.S.C. 1338(a)-(b) (any Act of Congress relating to patents or trademarks); and
28 U.S.C. 1332 (diversity jurisdiction).
8.

This Court has personal jurisdiction over Defendants because each of the

Defendants has committed and continues to commit acts of infringement in violation of 35

U.S.C. 271, and places infringing products into the stream of commerce, with knowledge or
understanding that such products are sold in the State of Kansas. Upon information and belief,
Defendants used a Kickstarter Campaign (i.e. crowd funding2) to raise funds in excess of
$60,000 by marketing the pon pins to potential investors. Upon information and belief,
Defendants derive substantial revenue from the sale of infringing products within this District,
expect their actions to have consequences within this District, and derive substantial revenue
from interstate and international commerce.
9.

On information and belief, Defendants conduct business in this Judicial District

and have committed acts of patent infringement in this Judicial District including, inter alia,
1

Through its website http://www.ponitup.com/, Defendants appear to offer infringing products in

various volumes including a fifty (50) count package.
2

Crowd funding is the act of receiving many small donations from donors situated in various
locations throughout the United States.
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importing, making, using, offering for sale, and/or selling infringing products or services in this
Judicial District, including Pon 50 Pack, and other related telephony services.
VENUE
10.

Venue is proper in this Court pursuant to 28 U.S.C. 1391 and 1400(b).

FACTUAL BACKGROUND

11.

On July 10, 2006, Plaintiff Mark Ross filed an application with the United States

Patent office on the design of a paper tack as shown below:

12.

On July 3, 2007, the U.S. Patent office issued a patent on the Plaintiffs design

numbered US D545,903 S (the 903 Patent). A copy of the 903 Patent is attached as Exhibit
A to this Original Complaint.
13.

Plaintiff Mark Ross is the owner of all right, title, and interest in and to the 903

Patent, which duly and legally issued by the United States Patent and Trademark Office.
14.

The 903 Patent covers the many ornamental features of Mr. Rosss Paper Tack

15.

On or about March 2015, Plaintiff became aware of Defendants infringing

device.

activities and contacted Defendants through email and domain name Registrars concerning the
activity, and provided Defendants with a copy of the Plaintiffs design patent.
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The Defendants Infringing Products

16.

Upon information and belief, the Defendants have made, used, offered to sell,

and/or sold, and continue to make, use, offer to sell, and/or products and services infringing the
903 Patent including but not limited to the Pon 50 Pack, and other related products, without
Mr. Rosss permission.
17.

By way of example, the Pon product offered through the Defendants website

infringes the 903 Patent design:

The 903 Patent Design

The Defendants Infringing

Pon Product

COUNT 1: PATENT INFRINGEMENT UNDER 35 U.S.C. 271

Infringement of the 903 Patent
18.

Plaintiff re-alleges and incorporates by reference the allegations set forth in

paragraphs 117 above.

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19.

Defendants have infringed and continue to infringe the 903 Patent by using,

selling and/or offering to sell in the United States, and/or importing into the United States one or
more of the Defendants infringing products such as the Pon pin devices identified in this
Complaint, which embody the design covered by the 903 Patent.
20.

Upon information and belief, by at least March 30, 2015, Defendants had actual

knowledge of the 903 Patent, and knew or should have known of the objectively high likelihood
it was infringing the 903 Patent.
21.

Upon information and belief, despite Defendants knowledge of the 903 Patent

and the known or obvious risks of infringement, Defendants acted in reckless disregard of Mr.
Rosss patent rights and the objectively high likelihood that its products and services infringed
Plaintiffs valid and enforceable patent. As such, and upon information and belief, Defendants
infringement of the 903 Patent has been and is willful.
22.

Upon information and belief, Defendants infringement of the 903 Patent will

continue unless enjoined by this Court.

23.

As a direct and proximate consequence of Defendants infringement of the 903

Patent, Plaintiff has suffered and will continue to suffer irreparable injury and damages in an
amount not yet determined for which Plaintiff is entitled to relief.
PRAYER FOR RELIEF
Wherefore, Plaintiff requests entry of judgment in its favor and against
Defendants as follows:
A.

Judgment that Defendants have directly infringed Plaintiffs 903 Patent;

B.

Judgment that Defendants infringement has been, and continues to be, willful,

including that Defendants have been and continue to be willfully infringing the 903 Patent;
C.

An Order finding that Defendants actions make this case exceptional under 35
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U.S.C. 285;
D.

An award of damages to compensate Plaintiff for Defendants infringement,

including damages pursuant to 35 U.S.C. 284, as well as prejudgment and post-judgment

interest;
E.

An Order preliminarily and permanently enjoining Defendants, and their

respective officers, agents, servants, employees, attorneys, and those persons in active concert or
participation with Defendants who receive actual notice of the order by personal service or
otherwise, from any further acts of infringement, including sales, offers for sale, and uses of their
infringing products and/or services and any other infringement of Plaintiffs patent, whether
direct or indirect; and
F.

An award of treble damages for Defendants willful infringement pursuant to 35

U.S.C. 284;
G.

An award of costs and expenses in this action, including an award of Plaintiffs

reasonable attorneys fees pursuant to 35 U.S.C. 285; and

H.

For such other and further relief as the Court may deem just, proper, and equitable

under the circumstances.

DEMAND FOR JURY TRIAL
Plaintiff respectfully demands a trial by jury on all claims and issues so triable.

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DESIGNATION OF PLACE OF TRIAL

Plaintiff hereby designates Kansas City, Kansas as place of trial pursuant to Local
Rule 40.2.
Dated: June 23, 2015

Respectfully submitted,
/s/ Leonard Searcy, II
Leonard Searcy, II KS Bar No. 21983
SHOOK, HARDY & BACON L.L.P.
2555 Grand Boulevard
Kansas City, Missouri 64108-2613
Telephone: (816) 474-6550
Facsimile: (816) 421-5547
Attorneys for Plaintiff

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Exhibit A

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