Flambeau v. TRI - Complaint

Case: 3:16-cv-00353-jdp Document #: 1 Filed: 05/26/16 Page 1 of 13
IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN
FLAMBEAU, INC.,
Plaintiff,
v.
TOTAL RESOURCES INTERNATIONAL,

INC.,
Defendant.
Case No. 16-cv-353

TRIAL BY JURY DEMANDED
COMPLAINT
Plaintiff, Flambeau, Inc. (Flambeau), by its attorneys, Quarles & Brady LLP, for its
Complaint against Defendant, Total Resources International, Inc. (TRI), hereby alleges as
follows:
THE PARTIES
1.
Flambeau is a Wisconsin corporation with its principal place of business at 801
Lynn Avenue, Baraboo, Wisconsin 53913.

2.
On information and belief, TRI is a California corporation with its principal place
of business at 420 S. Lemon Avenue, Walnut, CA 91789.

JURISDICTION
3.
This is an action for patent infringement, arising under the laws of the United
States set forth in Title 35 of the United States Code, trade dress infringement, false designation
of origin, and unfair competition arising under the laws of the United States set forth in Title 15
QB\39937286.4
of the United States Code, and state common law unfair competition and unjust enrichment.
Flambeau is seeking both injunctive relief and damages.
4.
This Court has subject matter jurisdiction over this matter under 28 U.S.C.
1331 and 1338 because this is a civil action for patent infringement, trade dress infringement,
false designation of origin, and unfair competition arising under Titles 15 and 35 of the United
States Code. In addition, this Court has jurisdiction over Flambeaus state common law claims
for unfair competition and unjust enrichment under 28 U.S.C. 1367.
5.
This Court has personal jurisdiction over TRI because, upon information and
belief, TRI conducts substantial business in the State of Wisconsin and within the Western
District of Wisconsin. TRI markets, sells, offers to sell, induces the sale of, and/or imports in
commerce infringing products directly, or through intermediaries, in or into Wisconsin and this
District, thereby causing injury and damage to Flambeau in Wisconsin and this District. TRIs
substantial business in Wisconsin and this District may result from acts committed outside
Wisconsin or this District, including but not limited to using established distribution channels to
market, sell, offer to sell, induce the sale of, and/or import infringing products in or into
Wisconsin and this District. In conducting its business in Wisconsin and this District, TRI stands
to derive substantial revenue from its infringing products at the expense of Flambeau unless
enjoined by this Court.
6.
Venue in this District is proper under 28 U.S.C. 1391 because, on information
and belief, a substantial part of the acts of infringement occur in this District, as TRI sells, offers
to sell, induces the sale of, and/or imports infringing products in or into this judicial District.
7.
TRIs activities complained of herein have caused, and will continue to cause
particularized and concrete injury in fact to Flambeau; that injury is traceable to TRIs
QB\39937286.4
challenged activities; and that injury is likely to be redressed by a favorable decision from this
court.
FACTS GIVING RISE TO THIS ACTION
8.
Flambeau restates and incorporates by reference all previous allegations.

Flambeaus Carrying Cases
9.
Flambeau is a premiere designer, manufacturer, and supplier of plastic products.
10.
Flambeau has invested time and resources in designing and manufacturing various
lines of plastic carrying cases.

11.
For example, Flambeau has designed a line of plastic carrying cases, which it
markets and offers for sale under the trademarks Merchant and Tradesman (hereinafter the
Merchant carrying cases and the Tradesman carrying cases). Photographs of the Merchant
and Tradesman carrying cases are attached as parts of Exhibits D and E.
12.
Flambeau holds various intellectual property rights that apply to the Merchant and
Tradesman carrying cases, including patent and trade dress rights.

13.
Flambeau owns by assignment the entire right, title, and interest in U.S. Design
Patent No. D633,294 (the 294 Patent) entitled Case. A true and accurate copy of the 294
Patent is attached to this Complaint as Exhibit A. The 294 Patent features six figures that
describe the claimed ornamental design for a case, highlighting distinctive features such as the
thin ridge that runs along the cases seam and the raised, rounded surface on both faces of the
case.
14.
Flambeau owns trade dress protection over certain nonfunctional, distinctive
aspects of the Merchant and Tradesman carrying cases, both individually and in combination.
15.
For example, the Merchant 10 Translucent Clear carrying case (hereinafter
Merchant 10 carrying case), sold as item #6772TD, incorporates numerous non-functional,
QB\39937286.4
distinctive elements. (See Flambeau, Products - Carrying Cases - Merchant 10 Translucent

Clear, https://www.flambeaucases.com/index.php/site/details/6772TD (last visited May 18,
2016), a printout of which is attached as Exhibit D).
16.
The Tradesman 14 Translucent Clear carrying case (hereinafter Tradesman
14 carrying case), sold as item #6780TN, incorporates non-functional, distinctive elements.

(Flambeau, Products Carrying Cases Tradesman 14 Translucent Clear,
https://www.flambeaucases.com/index.php/site/details/6780TN (last visited May 19, 2016), a
printout of which is attached as Exhibit E).
17.
By non-limiting example, the Merchant 10 and Tradesman 14 carrying cases
incorporate two distinctive black ribbed latches. (See, e.g., Exh. D (open view); Exh. E (open
view)). Each latch has a rounded outer corner and symmetrical oblong groves on either side.
The design of these latches is ornamental and source-identifying, as the latches could be any
color and shape and have no need for any particular number of grooves or particular shaped
grooves.
18.
As a second non-limiting example, the Merchant 10 and Tradesman 14 carrying
cases have two distinctive oblong feet. (See, e.g., Exh. D (side view); Exh. E (side view)). Each
foot consists of two raised pieces of plastic. The first piece is a half circle of plastic with sides
that angle down to the seam. The second piece is a tapered half oval with sides that angle down
to the seam. The specific design of these feet is ornamental and source-identifying, as the feet
could be any shape and have no need for angled sides.
19.
As a third non-limiting example, the Merchant 10 and Tradesman 14 carrying
cases each have two distinctive rounded hinges. (See, e.g., Exh. D (front view); Exh. E (front
view)). Each hinge has cylindrical subsections accompanied by a beveled end section that
QB\39937286.4
curves to the center of the case. The design of these hinges is ornamental and source-identifying,
as the hinges could be composed of any number of subsections and have no need for a beveled
end section.
20.
As a fourth non-limiting example, the Merchant 10 carrying case has a distinctive
thin ridge that runs along the cases seam. (See, e.g., Exh. D (open and front views)). The ridge
is ornamental and source-identifying, as it only serves to enhance the cases profile.
21.
As a final non-limiting example, the Merchant 10 has distinctive raised, rounded
surfaces on both the front and back faces of the case that follow the outline of the case. (Id.
(front and side views)). The raised, rounded surfaces are ornamental and source-identifying as
they only serve to enhance the cases profile.
22.
Flambeau sells the Merchant and Tradesman carrying cases in multiple sizes, all
of which incorporate one or more aspects of the trade dress described herein.
23.
The nonfunctional, distinctive aspects of the Merchant and Tradesman carrying
cases have become associated with the success of Flambeaus plastic products and have become
an indication of the source of high-quality carrying cases in the minds of the relevant purchasing
public.
24.
Flambeau sells the Merchant and Tradesman carrying cases on its website and
through retailers across the United States. (See, e.g., Exh. D; Exh. E).
25.
Flambeau has been using the asserted trade dress in interstate commerce since at
least as early as 2009.

TRIs Carrying Case
26.
TRI uses, offers to sell and/or sells first aid kits in the United States. (See, e.g.,
Amazon, Be Smart Get Prepared First Aid Kit, http://www.amazon.com/Be-Smart-Get-PreparedFirst/dp/B018S444H4/ref=sr_1_7?ie=UTF8&qid=1463608523&sr=8-
QB\39937286.4
7&keywords=Be+Smart+Get+Prepared+First+Aid+Kit (last visited May 18, 2016), a copy of

which is attached as Exhibit F).
27.
TRI previously purchased Merchant carrying cases from Flambeau for its first aid
28.
TRI no longer purchases cases for its first aid kits from Flambeau, and instead,
kits.
upon information and belief, TRI set out to copy and incorporate the design-patented, nonfunctional and distinctive aspects of Flambeaus Merchant carrying cases as closely possible in
its cases. A chart comparing one of TRIs infringing cases with the patented case from the 294
Patent is attached as Exhibit B.
29.
Upon information and belief, TRI set out to copy and incorporate the
nonfunctional, distinctive and source-identifying aspects of Flambeaus Merchant carrying cases

as closely possible in its cases. A chart comparing one of TRIs infringing cases with the
nonfunctional, distinctive and source-identifying aspects of the Merchant 10 is attached as
Exhibit C.
30.
TRIs case incorporates two black ribbed latches. (See, e.g., Exh. F (front view)).
Each latch has a rounded outer corner and symmetrical oblong groves on either side. (Id.).
31.
TRIs case incorporates two oblong feet. (Id. (front and back views)). Each foot
consists of two raised pieces of plastic. (Id.). The first piece is a half circle of plastic with sides
that angle down to the seam. (Id.). The second piece is a tapered half oval with sides that angle
down to the seam. (Id.).
32.
TRIs case incorporates two rounded hinges. (Id. (back view)). Each hinge has
cylindrical subsections and a beveled end section that curves to the center of the case. (Id.).
QB\39937286.4
33.
TRIs case incorporates a thin ridge that runs along the cases seam. (Id. (front
34.
TRIs case incorporates raised, rounded surfaces on both the front and back faces
view)).
of the case that follow the outline of the case. (Id. (front and back views)).
35.
Because of the nearly-identical look of TRIs case to Flambeaus carrying cases,
the relevant purchasing public is likely to believe that Flambeau is in someway affiliated or
associated with TRIs case, which is likely to cause confusion as to the source of TRIs cases.
COUNT I
Infringement of U.S. Design Patent No. D633,294
36.
37.
TRI has infringed, and continues to infringe, directly and/or indirectly, the 294
Patent under 35 U.S.C. 271 by importing, using, making, selling, offering for sale, and/or
inducing the sale in the United States products covered by the 294 Patent, including the case
used for TRIs Outdoor Camping Hiking First Aid Kit.
38.
TRIs cases, including the Outdoor Camping Hiking First Aid Kit model,
are almost identical to the design covered by the 294 Patent. For example, TRIs cases also
have a thin ridge that runs along the cases seam and raised, rounded surfaces that follow the
outline of the case on both faces of the case. A chart comparing TRIs Outdoor Camping
Hiking First Aid Kit to the 294 Patent is attached as Exhibit B.
39.
An ordinary observer familiar with the prior art is likely to confuse Flambeaus
patented design with one or more of TRIs cases.

40.
TRIs infringement of the 294 Patent is intentional, willful, and/or in reckless
disregard of Flambeaus rights.
QB\39937286.4
41.
By infringing the 294 Patent, TRI has caused Flambeau to suffer and, unless
enjoined by this Court, will cause Flambeau to continue to suffer, substantial injury, including
lost profits, for which Flambeau is entitled to damages adequate to compensate Flambeau for
TRIs infringement.
42.
If TRIs infringement of the 294 Patent is not enjoined, Flambeau will suffer
irreparable harm that cannot adequately be compensated by a monetary award.

COUNT II
Federal Trade Dress Infringement
43.
44.
TRI has infringed, and continues to infringe Flambeaus trade dress, as described
above, under 15 U.S.C. 1125 by importing, using, making, selling, offering for sale, and/or
inducing the sale in the United States products that incorporate non-functional, distinctive and
source-identifying elements of Flambeaus trade dress. A chart depicting one instance of TRIs
infringement of Flambeaus trade dress is attached as Exhibit C.
45.
TRIs infringement of Flambeaus trade dress is likely to mislead and confuse the
public as to the source, sponsorship, affiliation and/or approval of TRIs carrying cases. Because
of the nearly-identical look of at least one of TRIs cases to the Merchant 10 and other Flambeau
carrying cases, the relevant purchasing public is likely to believe that Flambeau is in someway
affiliated or associated with TRIs carrying case products.
46.
TRIs infringement of Flambeaus trade dress is intentional, willful, and/or in
reckless disregard of Flambeaus rights.

47.
By infringing Flambeaus trade dress, TRI has caused Flambeau to suffer and,
unless enjoined by this Court, will cause Flambeau to continue to suffer, substantial injury,
QB\39937286.4
including Flambeaus damages and/or ill-gotten profits of TRI for which it has been unjustly
enriched, and for which Flambeau is entitled to damages adequate to compensate Flambeau for
TRIs infringement.
48.
If TRIs infringement of Flambeaus trade dress is not enjoined, Flambeau will
suffer irreparable harm that cannot adequately be compensated by a monetary award.

COUNT III
Federal Law False Designation of Origin
49.
50.
TRI has falsely designated the origin of its carrying cases under 15 U.S.C. 1125
by copying Flambeaus trade dress, as described above, into its own products and then
importing, using, making, selling, offering for sale, and/or inducing the sale in the United States
of those products.
51.
TRIs false designations of origin are likely to cause confusion or mistake as to
the origin, nature, characteristics, and qualities of TRIs products. The relevant purchasing
public is likely to believe that Flambeau is somehow affiliated, connected, or associated with
TRIs products or that Flambeau has given its approval to TRI to use its trade dress, when
Flambeau has not.
52.
TRIs false designation of origin is intentional, willful, and/or in reckless
disregard of Flambeaus rights.

53.
By its false designation of origin, TRI has caused Flambeau to suffer and, unless
enjoined by this Court, will cause Flambeau to continue to suffer, substantial injury, including
Flambeaus damages and/or the ill-gotten profits of TRI for which it has been unjustly enriched,
QB\39937286.4
and for which Flambeau is entitled to damages adequate to compensate Flambeau for TRIs
infringement.
54.
If TRIs false designation of origin is not enjoined, Flambeau will suffer
irreparable harm that cannot adequately be compensated by a monetary award.

COUNT IV
Federal Unfair Competition
55.
56.
TRIs wrongful actions described above constitute acts of unfair competition
under 15 U.S.C. 1125.

57.
TRIs unfair competition with Flambeau was, and is, done willfully, maliciously,
and/or in an intentional disregard of Flambeaus rights.

58.
As a direct and proximate result of TRIs wrongful actions, Flambeau has
suffered, and continues to suffer, damage and loss.

COUNT V
Common Law Unfair Competition
59.
60.
TRIs wrongful actions described herein constitute unfair competition under
Wisconsin common law.

61.
TRIs unfair competition with Flambeau was, and is, done willfully, maliciously,
and/or in an intentional disregard of Flambeaus rights.

62.
As a direct and proximate result of TRIs wrongful actions, Flambeau has
suffered, and continues to suffer, damage and loss.
QB\39937286.4
10
COUNT VI
Common Law Unjust Enrichment
63.
64.
TRI received a benefit by infringing upon Flambeaus patented design and trade
65.
Flambeau expended labor, skill, time, and money developing the patented designs
dress.
and trade dress that TRI has infringed.

66.
TRI appreciated, knew of, or realized the benefit of the patented designs and trade
dress that TRI has infringed.

67.
TRI retained the benefit of Flambeaus patented design and trade dress under
circumstances that would make it inequitable for TRI to retain the benefit without payment to
Flambeau of its value.
68.
Flambeau has been damaged in an amount to be proven at trial.

PRAYER FOR RELIEF
WHEREFORE Flambeau seeks the following relief from this Court:

A.
A judgment against TRI that TRI has infringed the 294 Patent in violation of 35
U.S.C. 271;
B.
A judgment that TRIs patent infringement has been willful;
C.
An award of damages adequate to compensate Flambeau for TRIs patent
infringement, but no less than the damages permitted by 35 U.S.C. 284 and 289;
D.
An award of treble damages pursuant to 35 U.S.C. 284;
E.
A declaration that this is an exceptional case pursuant to 35 U.S.C. 285;
F.
A judgment against TRI that TRI has infringed Flambeaus trade dress in
QB\39937286.4
11
violation of 15 U.S.C. 1125;

G.
A judgment that TRIs trade dress infringement has been willful;
H.
An award of damages adequate to compensate Flambeau for TRIs trade dress
infringement, but no less than the damages and/or disgorgement of profits permitted by 15
U.S.C. 1117;
I.
A judgment against TRI that TRI has committed false designation of origin in
violation of 15 U.S.C. 1125;

J.
A judgment that TRIs false designation of origin has been willful;
K.
An award of damages adequate to compensate Flambeau for TRIs false
designation of origin, but no less than the damages and/or disgorgement of profits permitted by
15 U.S.C. 1117;
L.
A judgment against TRI that TRI has unfairly competed against Flambeau in
violation of 15 U.S.C. 1125 and other applicable authority;

M.
A judgment that TRIs unfair competition has been willful;
N.
An award of damages adequate to compensate Flambeau for TRIs unfair
competition, but no less than the damages and/or disgorgement of profits permitted by 15 U.S.C.
1117 and other applicable authority;
O.
An award of enhanced damages pursuant to 15 U.S.C. 1117;
P.
A judgment against TRI that TRI was unjustly enriched;
Q.
An award of damages adequate to compensate Flambeau for TRIs unjust
enrichment;
R.
An award of compensatory and punitive damages, under the authority described
above and any other applicable authority;
QB\39937286.4
12
S.
A preliminary and a permanent injunction pursuant to 15 U.S.C. 1116, 35
U.S.C. 283, and/or any other applicable authority prohibiting TRI from continuing to violate
Flambeaus rights in anyway and prohibiting TRI from importing, using, offering to sell, or
selling any plastic carrying case violating Flambeaus design patent or trade dress;
T.
A judgment that TRIs acts of design patent and trade dress infringement warrant
a finding that this is an exceptional case;

U.
An award of reasonable attorneys fees incurred herein pursuant to 15 U.S.C.
1117, 35 U.S.C. 285, and/or any other applicable authority;

V.
An award of Flambeaus costs and expenses;
W.
An award of pre- and post-judgment interest; and
X.
Such other and further relief as the Court may deem just and proper.
JURY DEMAND
Flambeau demands a trial by jury on all issues properly tried to a jury.
Dated this 26th day of May, 2016.
Respectfully submitted,
/s/ Anthony A. Tomaselli
Anthony A. Tomaselli
aat@quarles.com
Martha Jahn Snyder
martha.snyder@quarles.com
Anita Marie Boor
anita.boor@quarles.com
QUARLES & BRADY LLP
33 East Main Street, Suite 900
Madison, Wisconsin 53703-3095
Tel.: 608.251.5000
Fax: 608.251.9166
Attorneys for Plaintiff Flambeau, Inc.
QB\39937286.4
13
Case: 3:16-cv-00353-jdp Document #: 1-1 Filed: 05/26/16 Page 1 of 6
EXHIBIT A
IIIIII
c12)
(54)
1111111111111111111111111111111111111111111
USOOD633294S
United States Design Patent
(10)
Jamison et al.
(45)
CASE
(75)
Inventors: David S. Jamison, Twinsburg, OH (US);

Jason C. Sauey, Chagrin Falls, OH (US)
(73)
Assignee: Flambeau, Inc., Baraboo, WI (US)
(**)
Term:
(21)
Appl. No.: 29/357,316
(22)
Filed:
(51)
(52)
(58)
LOC (9) Cl. .................................................. 03-01

U.S. Cl. ....................................................... D3/282
Field of Classification Search . ... ... ... ... .. ... D3/201,
D3/273,276,280,282,283,284,292,294,
D3/295, 315,318,321,323,901, 905; 190/121;
206/349, 373; 220/675; 222/465.1
See application file for complete search history.
1112003
12/2007
7/2008
8/2001
9/2006
Cunningham eta!.
Richardson eta!. .......... D3/294
Bucket a!.
Tiramani eta!.
Tieben et a!.
OTHER PUBLICATIONS
Primary Examiner-Elizabeth A Albert

Assistant Examiner-Karen E Eldridge Powers
(74) Attorney, Agent, or Firm---Quarles & Brady LLP
(57)
CLAIM
The ornamental design for a case, as shown and described.

DESCRIPTION
FIG. 1 is a right, top, front perspective view of a case according to our new design;
U.S. PATENT DOCUMENTS
FIG. 2 is a top plan view thereof;
s
s *
s *
FIG. 3 is a front elevational view thereof;
*
s *
s *
s *
A
S
S
S
S
S
S
S
*
*
*
*
*
*
*
4/1985
2/1991
10/1994
3/1995
4/1995
4/1996
211998
511998
6/1999
8/1999
8/1999
9/1999
12/1999
112000
8/2000
3/2001
Mar. 1, 2011
* cited by examiner
Mar. 10, 2010
References Cited
D278,189
D314,669
D351,504
5,394,966
D357,117
D368,371
D390,357
D393,945
5,915,553
D412,397
D413,202
D413,440
D417,781
D419,297
D428,699
D439,408
S
S
S
A1
A1
**
ArtBin Quick View Carry Case by Flambeau, as viewed on http://art.

artbin.com on Jul. 6, 2010 (8 pages). Refer to arrows on pp. 1 and 5. *
14 Years
(56)
US D633,294 S
Patent No.:
Date of Patent:
D481,868
D557,897
D572,479
200110011620
2006/0201958
11111111111
Frydenberg
Kunimune ................... D3/282
Tarozzi ........................ D3/276
Chow ......................... 190/119
Huang ......................... D3/276
Calmeise ..................... D3/282
Rosen ......................... D3/282
Urvoy
Brown eta!. ................ 206/372
Liu ............................. D3/282
Schmitt eta!. ............... D3/276
Schurman .................... D3/282
Staheli ........................ D3/282
Richardson eta!.
Gibson et a!. ................ D3/282
Gibson et a!. ................ D3/282
FIG. 4 is a rear elevational view thereof;

FIG. 5 is a right side elevational view thereof, the left side
elevational view thereofbeing a mirror image of the right side
shown; and,
FIG. 6 is a bottom plan view thereof.
The broken line representations in the figures illustrate features of the article to which the design is applied that form no
part of the claimed design. The interior broken line in FIG. 6
which defines the bounds of the claimed design forms no part
thereof.
1 Claim, 4 Drawing Sheets
U.S. Patent
Mar. 1,2011
Sheet 1 of 4
US D633,294 S
U.S. Patent
Mar. 1,2011
US D633,294 S
Sheet 2 of 4
II
II
I
~~~~
...
III I
I II
,.f;Q:I
r 111
n11, non-~,
-~II
............
~~I
I' /:=-nnnf'\1"
------
'1lUUli111lf:1- r
-
~c::
1111
tt="
I I I
I II II I.
II
~~-fllllllllllll
~':::::1
J
\.
FIG. 2
I 1!!...:----
U.S. Patent
Mar. 1,2011
Sheet 3 of 4
'lltll
FIG. 3
FIG. 4
US D633,294 S
U.S. Patent
:~I
Mar. 1,2011
-H-1
11J,,,
- ------
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-1
,I
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--------------- ---------. I"
''JIIIIII
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US D633,294 S
Sheet 4 of 4
..
FIG. 5
FIG. 6
''llj 1,111
Ill IIIII I
..
II
~)
fll
I'I
~-
I t
I I
II
II
II
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__ I
EXHIBIT B
D633,294 Patent
QB\124838.00090\39868370.1
Sample Accused Product
D633,294 Patent
QB\124838.00090\39868370.1
D633,294 Patent
QB\124838.00090\39868370.1
EXHIBIT C
Flambeau Merchant Case
QB\124838.00090\39868775.2
Sample TRI Infringing Case
EXHIBIT D
6772TD Merchant 10" (25.4 cm) Translucent Clear- without Foam | Flambeau Cases
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Home | 6772TD Merchant 10" (25.4 cm) Translucent Clear- without Foam
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CARRYING CASES
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Merchant 10" (25.4 cm) Translucent Clear- without

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Catalog #: 6772TD
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Description
The 9 5/8" x 7 1/8" x 2 3/8" (24.45 x 18.10 x 6.03 cm) Merchant case features a deep base for greater storage capacity and a shallow lid
that reduces cost in applications requiring lid foam. The handle is offset to provide better balance and a comfortable grip. The Merchant
features slide open/shut lockable latches with a bead-line seal fit between base and lid.
6772TD Merchant 10"

(25.4 cm) Translucent
Clear- without Foam
$4.98
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6772TF Merchant
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6772TD Merchant 10" (25.4 cm) Translucent Clear- without Foam | Flambeau Cases
Copyright: Flambeau Cases 2016 a Division of Flambeau, Inc. - All Rights Reserved.
https://www.flambeaucases.com/index.php/site/details/6772TD[5/20/2016 12:16:12 PM]
EXHIBIT E
6780TN Tradesman 14" (35.56 cm) Translucent Clear | Flambeau Cases
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The 13 1/4" x 7 3/8" x 3" (33.66 x 18.73 x 7.62 cm) Tradesman case can be used to protect, store and merchandise a wide variety of
products. Available in a range of color options, the Tradesman is easy to customize with adhesive or in-mold labels, logo plates,
engraving and custom interior foam or vacuum trays. Constructed of polypropylene resin, the case features slide open/shut lockable
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6780TN Tradesman
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EXHIBIT F
Amazon.com : Be Smart Get Prepared First Aid Kit (250 piece) : Sports & Outdoors
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Be Smart Get Prepared First Aid Kit

(250 piece)
by Be Smart Get Prepared
1 customer review
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A complete first aid assortment Packaged in a
durable plastic case with easy-slide latches
Includes treatments for poison ivy, insect bites,
minor Burns, blisters and more
Hi-visibility glow label to easily find your kit in the
dark
Special Shipping Information: This product may not be
available for 1 or 2 day shipping due to federal regulations
that require it to ship via ground ship methods only. This
product can only be shipped within the 48 contiguous
states.
Ship to:
MILWAUKEE, WI 53201
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http://www.amazon.com/Be-Smart-Get-Prepared-First/dp/B018S444H4/ref=sr_1_7?ie=UTF8&qid=1463608523&sr=8-7&keywords=Be+Smart+Get+Prepared+First+Aid+Kit[5/20/2016 12:18:00 PM]

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Product Description
Tri's "Be Smart Get Prepared" 250 pc. Outdoor first aid kit offers a comprehensive assortment of first aid supplies for your outdoor
activities. The kit includes treatments for poison Ivy, insect bites, minor burns, blisters and more. Packaged in a durable plastic case with
easy-slide latches, the kit also features a hi-visibility glow label so you can easy find your kit in the dark. So for your next outdoor
adventure or family camping trip, "Be Smart Get Prepared" with tri's 250 pc. Outdoor first aid kit.
Product Details
Product Dimensions: 2.8 x 10 x 9.7 inches
Shipping Weight: 1.9 pounds (View shipping rates and policies)
Domestic Shipping: Item can be shipped within U.S.
International Shipping: This item is not eligible for international shipping. Learn More
Origin:USA
ASIN: B018S444H4
Item model number: 10OUT02086GLOW
Average Customer Review:
(1 customer review)
Amazon Best Sellers Rank: #496,920 in Sports & Outdoors (See Top 100 in Sports & Outdoors)
#394 inSports & Outdoors > Outdoor Recreation > Camping & Hiking > Safety & Survival > First Aid Kits
Manufacturers warranty can be requested from customer service. Click here to make a request to customer service.
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Plastic seems like it would crack (if exposed to elements for too ...
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I received a plastic case. The contents of the case are simply tossed in with no way to sort them.
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CIVIL COVER SHEET
JS 44 (Rev. 11/15)
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS
DEFENDANTS
Flambeau, Inc.
Total Resources International, Inc.
(b) County of Residence of First Listed Plaintiff
County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES)

NOTE:
(c) Attorneys (Firm Name, Address, and Telephone Number)
(IN U.S. PLAINTIFF CASES ONLY)

IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
Attorneys (If Known)
Anthony A. Tomaselli, Martha Jahn Snyder and Anita Marie Boor

Quarles & Brady, LLP, 33 East Main Street, Suite 900, Madison, WI
53703, (608) 251-5000
II. BASIS OF JURISDICTION (Place an X in One Box Only)

1
U.S. Government
Plaintiff
Federal Question
(U.S. Government Not a Party)
U.S. Government
Defendant
Diversity
(Indicate Citizenship of Parties in Item III)
III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff

(For Diversity Cases Only)
PTF
Citizen of This State
1
DEF
1
and One Box for Defendant)

PTF
DEF
Incorporated or Principal Place
4
4
of Business In This State
Citizen of Another State
Incorporated and Principal Place

of Business In Another State
Citizen or Subject of a
Foreign Country
Foreign Nation
IV. NATURE OF SUIT (Place an X in One Box Only)

CONTRACT
TORTS
110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment
151 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excludes Veterans)
153 Recovery of Overpayment
of Veterans Benefits
160 Stockholders Suits
190 Other Contract
195 Contract Product Liability
196 Franchise
REAL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property
PERSONAL INJURY
310 Airplane
315 Airplane Product
Liability
320 Assault, Libel &
Slander
330 Federal Employers
Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
362 Personal Injury Medical Malpractice
CIVIL RIGHTS
440 Other Civil Rights
441 Voting
442 Employment
443 Housing/
Accommodations
445 Amer. w/Disabilities Employment
446 Amer. w/Disabilities Other
448 Education
FORFEITURE/PENALTY
PERSONAL INJURY
365 Personal Injury Product Liability
367 Health Care/
Pharmaceutical
Personal Injury
Product Liability
368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
370 Other Fraud
371 Truth in Lending
380 Other Personal
Property Damage
385 Property Damage
Product Liability
PRISONER PETITIONS
Habeas Corpus:
463 Alien Detainee
510 Motions to Vacate
Sentence
530 General
535 Death Penalty
Other:
540 Mandamus & Other
550 Civil Rights
555 Prison Condition
560 Civil Detainee Conditions of
Confinement
625 Drug Related Seizure

of Property 21 USC 881
690 Other
BANKRUPTCY
422 Appeal 28 USC 158
423 Withdrawal
28 USC 157
PROPERTY RIGHTS
820 Copyrights
830 Patent
840 Trademark
LABOR
710 Fair Labor Standards
Act
720 Labor/Management
Relations
740 Railway Labor Act
751 Family and Medical
Leave Act
790 Other Labor Litigation
791 Employee Retirement
Income Security Act
SOCIAL SECURITY
861 HIA (1395ff)
862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(g))
FEDERAL TAX SUITS

870 Taxes (U.S. Plaintiff
or Defendant)
871 IRSThird Party
26 USC 7609
IMMIGRATION
462 Naturalization Application
465 Other Immigration
Actions
OTHER STATUTES
375 False Claims Act
376 Qui Tam (31 USC
3729(a))
400 State Reapportionment
410 Antitrust
430 Banks and Banking
450 Commerce
460 Deportation
470 Racketeer Influenced and
Corrupt Organizations
480 Consumer Credit
490 Cable/Sat TV
850 Securities/Commodities/
Exchange
890 Other Statutory Actions
891 Agricultural Acts
893 Environmental Matters
895 Freedom of Information
Act
896 Arbitration
899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
950 Constitutionality of
State Statutes
V. ORIGIN (Place an X in One Box Only)

1 Original
Proceeding
2 Removed from
State Court
Remanded from
Appellate Court
4 Reinstated or
Reopened
5 Transferred from
Another District
(specify)
6 Multidistrict
Litigation
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
35 U.S.C. Section 271
VI. CAUSE OF ACTION Brief description of cause:

Patent Infringement
CHECK IF THIS IS A CLASS ACTION

VII. REQUESTED IN
UNDER RULE 23, F.R.Cv.P.
COMPLAINT:
VIII. RELATED CASE(S)
(See instructions):
IF ANY
JUDGE
DATE
CHECK YES only if demanded in complaint:

Yes
No
JURY DEMAND:
DEMAND $
DOCKET NUMBER
SIGNATURE OF ATTORNEY OF RECORD
/s/ Anthony A. Tomaselli
05/26/2016
FOR OFFICE USE ONLY
RECEIPT #
AMOUNT
Print
APPLYING IFP
Save As...
JUDGE
MAG. JUDGE
Reset
JS 44 Reverse (Rev. 11/15)
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a)
(b)
(c)
Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".
II.
Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III.
Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV.
Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is
sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than
one nature of suit, select the most definitive.
V.
Origin. Place an "X" in one of the six boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407.
When this box is checked, do not check (5) above.
VI.
Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII.
Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.

AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT

for the
Western District
__________
DistrictofofWisconsin
__________
Flambeau, Inc.
Plaintiff(s)
v.
Defendant(s)
)
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 16-cv-353
SUMMONS IN A CIVIL ACTION

To: (Defendants name and address) Total Resources International, Inc.
c/o Registered Agent for Service of Process, George Del Carmen Rivera
385 S. Lemon Avenue, #E-191
Walnut, California 91789
A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney,
whose name and address are: Anthony A. Tomaselli
Quarles & Brady, LLP
33 East Main Street, Suite 900
Madison, Wisconsin 53703
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 16-cv-353

PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)
was received by me on (date)
I personally served the summons on the individual at (place)

on (date)
; or
I left the summons at the individuals residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date)
, and mailed a copy to the individuals last known address; or
I served the summons on (name of individual)
, who is
designated by law to accept service of process on behalf of (name of organization)

on (date)
; or
I returned the summons unexecuted because
; or
Other (specify):
.
My fees are $
for travel and $
for services, for a total of $
0.00
I declare under penalty of perjury that this information is true.
Date:
Servers signature
Printed name and title
Servers address
Additional information regarding attempted service, etc:
Print
Save As...
Reset

AO 120 (Rev. 08/10)
REPORT ON THE
FILING OR DETERMINATION OF AN
ACTION REGARDING A PATENT OR
TRADEMARK
Mail Stop 8
Director of the U.S. Patent and Trademark Office
P.O. Box 1450
Alexandria, VA 22313-1450
TO:
In Compliance with 35 U.S.C. 290 and/or 15 U.S.C. 1116 you are hereby advised that a court action has been
filed in the U.S. District Court
on the following
Western District of Wisconsin
G Trademarks or
DOCKET NO.
G Patents.
the patent action involves 35 U.S.C. 292.):
DATE FILED
U.S. DISTRICT COURT
Western District of Wisconsin

PLAINTIFF
DEFENDANT
Flambeau, Inc.
PATENT OR
TRADEMARK NO.
1 D633,294
DATE OF PATENT
OR TRADEMARK
3/1/2011
HOLDER OF PATENT OR TRADEMARK
Flambeau, Inc.
2
3
4
5
In the aboveentitled case, the following patent(s)/ trademark(s) have been included:
DATE INCLUDED
INCLUDED BY
PATENT OR
TRADEMARK NO.
Amendment
DATE OF PATENT
OR TRADEMARK
Answer
Cross Bill
Other Pleading
HOLDER OF PATENT OR TRADEMARK
1
2
3
4
5
In the aboveentitled case, the following decision has been rendered or judgement issued:
DECISION/JUDGEMENT
CLERK
(BY) DEPUTY CLERK
DATE
Copy 1Upon initiation of action, mail this copy to Director Copy 3Upon termination of action, mail this copy to Director
Copy 2Upon filing document adding patent(s), mail this copy to Director Copy 4Case file copy
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Flambeau v. TRI - Complaint

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Flambeau v. TRI - Complaint

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Case: 3:16-cv-00353-jdp Document #: 1 Filed: 05/26/16 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

TOTAL RESOURCES INTERNATIONAL,

Case No. 16-cv-353

Flambeau is a Wisconsin corporation with its principal place of business at 801

Lynn Avenue, Baraboo, Wisconsin 53913.

of business at 420 S. Lemon Avenue, Walnut, CA 91789.

Case: 3:16-cv-00353-jdp Document #: 1 Filed: 05/26/16 Page 2 of 13

Venue in this District is proper under 28 U.S.C. 1391 because, on information

Case: 3:16-cv-00353-jdp Document #: 1 Filed: 05/26/16 Page 3 of 13

Flambeau restates and incorporates by reference all previous allegations.

Flambeau is a premiere designer, manufacturer, and supplier of plastic products.

lines of plastic carrying cases.

Tradesman carrying cases, including patent and trade dress rights.

Flambeau owns trade dress protection over certain nonfunctional, distinctive

For example, the Merchant 10 Translucent Clear carrying case (hereinafter

Merchant 10 carrying case), sold as item #6772TD, incorporates numerous non-functional,

Case: 3:16-cv-00353-jdp Document #: 1 Filed: 05/26/16 Page 4 of 13

distinctive elements. (See Flambeau, Products - Carrying Cases - Merchant 10 Translucent

The Tradesman 14 Translucent Clear carrying case (hereinafter Tradesman

14 carrying case), sold as item #6780TN, incorporates non-functional, distinctive elements.

By non-limiting example, the Merchant 10 and Tradesman 14 carrying cases

As a second non-limiting example, the Merchant 10 and Tradesman 14 carrying

As a third non-limiting example, the Merchant 10 and Tradesman 14 carrying

Case: 3:16-cv-00353-jdp Document #: 1 Filed: 05/26/16 Page 5 of 13

As a fourth non-limiting example, the Merchant 10 carrying case has a distinctive

As a final non-limiting example, the Merchant 10 has distinctive raised, rounded

The nonfunctional, distinctive aspects of the Merchant and Tradesman carrying

least as early as 2009.

Amazon, Be Smart Get Prepared First Aid Kit, http://www.amazon.com/Be-Smart-Get-PreparedFirst/dp/B018S444H4/ref=sr_1_7?ie=UTF8&qid=1463608523&sr=8-

Case: 3:16-cv-00353-jdp Document #: 1 Filed: 05/26/16 Page 6 of 13

7&keywords=Be+Smart+Get+Prepared+First+Aid+Kit (last visited May 18, 2016), a copy of

nonfunctional, distinctive and source-identifying aspects of Flambeaus Merchant carrying cases

Case: 3:16-cv-00353-jdp Document #: 1 Filed: 05/26/16 Page 7 of 13

Because of the nearly-identical look of TRIs case to Flambeaus carrying cases,

Flambeau restates and incorporates by reference all previous allegations.

patented design with one or more of TRIs cases.

TRIs infringement of the 294 Patent is intentional, willful, and/or in reckless

disregard of Flambeaus rights.

Case: 3:16-cv-00353-jdp Document #: 1 Filed: 05/26/16 Page 8 of 13

irreparable harm that cannot adequately be compensated by a monetary award.

Flambeau restates and incorporates by reference all previous allegations.

TRIs infringement of Flambeaus trade dress is intentional, willful, and/or in

reckless disregard of Flambeaus rights.

Case: 3:16-cv-00353-jdp Document #: 1 Filed: 05/26/16 Page 9 of 13

If TRIs infringement of Flambeaus trade dress is not enjoined, Flambeau will

suffer irreparable harm that cannot adequately be compensated by a monetary award.

Flambeau restates and incorporates by reference all previous allegations.

TRIs false designations of origin are likely to cause confusion or mistake as to

TRIs false designation of origin is intentional, willful, and/or in reckless

disregard of Flambeaus rights.

Case: 3:16-cv-00353-jdp Document #: 1 Filed: 05/26/16 Page 10 of 13

If TRIs false designation of origin is not enjoined, Flambeau will suffer

irreparable harm that cannot adequately be compensated by a monetary award.

Flambeau restates and incorporates by reference all previous allegations.

TRIs wrongful actions described above constitute acts of unfair competition

under 15 U.S.C. 1125.

and/or in an intentional disregard of Flambeaus rights.

As a direct and proximate result of TRIs wrongful actions, Flambeau has

suffered, and continues to suffer, damage and loss.

Flambeau restates and incorporates by reference all previous allegations.

TRIs wrongful actions described herein constitute unfair competition under

Wisconsin common law.

and/or in an intentional disregard of Flambeaus rights.