Case 2:18-cv-00364-EJF Document 2 Filed 05/03/18 Page 1 of 13

Romaine C. Marshall (#9654)

Engels. J. Tejeda (#11427)
Karina Sargsian (#14775)
HOLLAND & HART LLP
222 S. Main Street, Suite 2200
Salt Lake City, Utah 84101
Telephone: (801) 799-5800
RCMarshall@hollandhart.com
EJTejeda@hollandhart.com
KSargsian@hollandhart.com

Counsel for Plaintiff Trimr, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

TRIMR, LLC, COMPLAINT

Plaintiff,

v. Civil No. _____________

PERFECTSHAKER.COM, INC. Judge ________________

Defendant.

Plaintiff Trimr LLC alleges and complains against Defendant Perfectshaker.com

(“Perfect Shaker”) as follows:

PARTIES

1. Plaintiff Trimr, LLC is a Utah limited liability company with a principal place of

business in Salt Lake County, Utah.

2. Trimr owns all rights, title, and interest in U.S. Patent No. 9,839,888, which is the

subject of this lawsuit.

 Case 2:18-cv-00364-EJF Document 2 Filed 05/03/18 Page 2 of 13

3. Perfect Shaker, on information and belief, is a Canadian limited liability company

with a principal place of business in Alberta, Canada.

JURISDICTION AND VENUE

4. This action arises under the Patent Act (35 U.S.C. § 271). This Court has subject

matter jurisdiction under 28 U.S.C. § 1331.

5. This action also arises under the Lanham Act. This Court also has subject matter

jurisdiction under § 39 of the Lanham Act (15 U.S.C. § 1121), and 28 U.S.C. § 1338.

6. Perfect Shaker actively conducts business in the State of Utah, either directly

through the Internet or through distributors, and has received orders from, and has filled and

shipped orders to, the State of Utah for the infringing products. These tortious acts form the

basis of Trimr’s claims against Perfect Shaker. As a result, this Court has personal jurisdiction

over Perfect Shaker.

7. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b).

GENERAL ALLEGATIONS

8. Trimr manufactures, sells, and distributes a portable mixer bottle under the

TRIMR mark (the “TRIMR”).

9. Trimr has invested heavily to protect its intellectual property rights relating to the

TRIMR bottle. The utilitarian aspects of the TRIMR are covered by U.S. Patent No. 9,839,888

(the “888”). A copy of the ’888 patent is attached as Exhibit A.

10. The TRIMR bottle is cloaked with a distinctive trade dress, which includes a

translucent mixer cup (in various colors) topped by a lid with the same color as the cup. The

hand-held shakable container has an hourglass figure and includes a substantially vertical

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member with a connected agitator that moves vertically along a rigid axis. Representative

advertisements depicting the TRIMR trade dress are attached as Exhibit B.

11. On or about February 15, 2013, Perfect Shaker contacted Trimr to inquire about

the possibility of receiving exclusive distribution rights for the TRIMR bottle in Canada.

12. On or about March 1, 2013, Perfect Shaker inquired of Trimr about the possibility

of acquiring Trimr.

13. In May 2013, Perfect Shaker and Trimr executed a Mutual General Nondisclosure

Agreement (“NDA”) in order to explore the possibility of Perfect Shaker purchasing Trimr. The

NDA is in effect for five years, ending on May 6, 2018. A copy of the NDA is attached as

Exhibit C.

14. In reliance upon protections agreed to in the NDA, Trimr disclosed to Perfect

Shaker proprietary and confidential information including, but not limited to:

a. Customer lists—including existing and potential customers;

b. Financial information such as sales history and manufacturing costs;

c. Marketing strategy and manufacturing contacts; and

d. Intellectual property strategy and product design information.

15. On May 9, 2013, Perfect Shaker sent Trimr a Term Sheet indicating its interest in

acquiring Trimr for $2,000,000.

16. After Trimr replied that it believed the company was worth more, Perfect Shaker

sent Trimr a second Term Sheet on May 15, 2013, indicating its interest in acquiring the

company for $3,000,000.

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17. Perfect Shaker stated that it would only be willing to initially pay five percent of

the purchase price, and only after an additional condition was met—its receipt of a leak free

mold of the TRIMR bottle from Trimr.

18. In order to verify that Perfect Shaker had the financial means to pay the remaining

95% of the agreed upon price, Trimr requested balance sheets, and profit and loss documents

from Perfect Shaker, and personal financial statements from Perfect Shaker’s founders.

19. Trimr’s requested information was denied. Instead, Perfect Shaker changed its

position, stating that instead of acquiring Trimr it only wanted distribution rights for Trimr

products in Canada.

20. On or about August 15, 2015, Trimr received information from its contact at

Bodybuilding.com that Perfect Shaker had sent them its Perfect Shaker “Slim” bottle which was

identical to Trimr’s bottle both in utility and design. A copy of the Perfect Shaker Slim bottle is

attached as Exhibit D.

21. On September 9, 2015, Trimr contacted Perfect Shaker via phone to discuss the

infringing bottle. Perfect Shaker claimed that it had only ordered 10,000 bottles with Trimr’s

design, had only sent its bottle to two companies, and that it had not yet sold any.

22. During the September 9, 2015 telephone call, Perfect Shaker stated that it had

obtained legal advice that the utility part of its bottle did not infringe (the “Legal Advice

Letter”).

23. On September 12, 2015, Perfect Shaker emailed to Trimr a copy of the letter it

referenced in Paragraph 22.

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24. The Legal Advice Letter reviewed Perfect Shaker’s product design against United

States Patent No. 7,441,941, United States Patent No. 6,379,032, and Trimr’s pre-grant United

States Publication No. 2014/0119154. Id.

25. Regarding Trimr’s pre-grant publication application ‘154, the Legal Advice Letter

stated:

The ‘154 patent is still pending and has not yet issued. At this
time, it is impossible to determine the likelihood of infringement as
the Applicant may amend the claims at any time during the
prosecution, and may file a divisional or continuation application.

While a full analysis of the pending claims has not been conducted,
it is noted that each of the independent claims in the ‘154 patent
refers to a straw that is used as a guide rod. In contract to this, the
guide rod in your bottle is sealed on both ends, and the lid does not
have an opening to allow the guide rod to be used as a straw.

26. On or about September 22, 2016, Trimr’s counsel sent a letter to Perfect Shaker

notifying Perfect Shaker that it had violated the NDA, infringed on Trimr’s patent, and employed

a former employee of Trimr who was bound by a non-compete agreement. A copy of the

September 22, 2016 letter is attached as Exhibit E.

27. After the September 22, 2016 letter, the parties again began discussions for the

acquisition of Trimr by Perfect Shaker.

28. After discussions fell through, Trimr’s attorney on December 29, 2016, sent a

letter to Perfect Shaker reminding it that Perfect Shaker is infringing upon Trimr’s patent, has

violated the NDA, and tortiously interfered with Trimr’s non-compete agreement with its

previous employee. A copy of the December 29, 2016 letter is attached as Exhibit F.

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29. Notwithstanding Perfect Shaker’s agreement in the NDA to “treat all information

exchanged as proprietary and confidential,” on information and belief, Perfect Shaker has

converted the proprietary and confidential information of Trimr for its own use.

30. Perfect Shaker is well aware of the goodwill Trimr has established through its

patent rights and distinctive trade dress in the TRIMR bottle.

31. On information and belief, Perfect Shaker adopted a marketing strategy and

philosophy to intentionally and unlawfully trade off that goodwill that Trimr had built up by

infringing Trimr’s patent rights and trade dress rights. In isolation, any one of the infringement

claims raised herein would be a serious problem. Collectively, Perfect Shaker’s egregious

misconduct yields only one conclusion: Perfect Shaker has adopted a strategy to deliberately

pilfer and infringe Trimr intellectual property rights and unlawfully trade off the extensive

goodwill Trimr has developed.

32. To date, Perfect Shaker has failed and refused to discontinue its theft of and

infringement of Trimr’s intellectual property rights. Accordingly, Trimr has no alternative but to

seek the Court’s assistance in resolving this matter.

FIRST CLAIM FOR RELIEF

(Breach of Contract)

33. Trimr re-alleges and incorporates the preceding allegations of this Complaint.

34. On May 6, 2013, the parties executed an NDA.

35. The NDA is a valid and enforceable contract between the parties.

36. Perfect Shaker agreed, among other things, to “treat all information exchanged as

proprietary and confidential” and for a period of five years from the date of receipt of the

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proprietary information, “to use the same measures to avoid dissemination of each such

proprietary document, . . . to any third party as recipient employs.”

37. On information and belief, in direct violation of the clear and explicit terms of the

NDA, Perfect Shaker has illicitly used for its own benefit the confidential and propriety

information provided to it by Trimr.

38. Perfect Shaker’s actions constitute a breach of the NDA.

39. Trimr has been damaged by Perfect Shaker’s actions, and is, therefore, entitled to

recover actual and consequential damages as a direct and proximate result of Perfect Shaker’s

breach of the NDA.

SECOND CLAIM FOR RELIEF

(Breach of Good Faith and Fair Dealing)

40. Trimr re-alleges and incorporates the preceding allegations of this Complaint.

41. Trimr and Perfect Shaker entered into a valid and enforceable contract.

42. Trimr had a reasonable and good faith expectation that Perfect Shaker would act

in good faith in performing its duties under the NDA.

43. Perfect Shaker acted purposely and intentionally to undermine Trimr’s rights to

receive the basic bargain of the agreement.

44. Perfect Shaker’s actions and inactions, as described above, demonstrate a course

and pattern of actions that benefited its own interests to the detriment of Trimr.

45. Perfect Shaker’s actions, as detailed above, constitute a breach of the covenant of

good faith and fair dealing.

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THIRD CLAIM FOR RELIEF

(Patent Infringement)

46. Trimr re-alleges and incorporates by this reference the preceding allegations of

this Complaint.

47. Perfect Shaker imports, uses, sells, and offers for sale infringing portable mixer

bottles on its websites, PERFECTSHAKER.COM and PERFORMABRAND.COM. See, e.g.,

the attached advertisements depicting Perfect Shaker’s “PerfectShaker Slim – 600 ml,” Ultimate

Warrior WWE Collection Legends Series #5, and G.I. Joe (Black) G.I. Joe Collection Original

Series #1 (collectively, the “SHAKERS”) attached as Exhibits G.

48. Perfect Shaker’s actions as described above, and specifically Perfect Shaker’s

unauthorized manufacture, use, importation, offers to sell, and sales of the SHAKERS constitutes

infringement of the ’888 patent.

49. Perfect Shaker’s continued actions of making, using, importing, selling, offering

for sale, and distributing the SHAKERS has injured, is injuring, and will cause irreparable injury

to Trimr and Trimr’s patent rights and exclusive market position if not preliminarily and

permanently enjoined by this Court.

50. Trimr is entitled to an injunction prohibiting Perfect Shaker from further making,

importing, using, selling, offering for sale, or otherwise distributing the SHAKERS without

permission or license from Trimr under 35 U.S.C. § 283.

51. Trimr is entitled to recover all damages caused by Perfect Shaker’s infringement,

together with prejudgment interest and costs under 35 U.S.C. § 284.

52. On information and belief, Perfect Shaker’s infringement is willful, or at the very

least, in reckless disregard of Trimr’s patent rights. Perfect Shaker had knowledge of Trimr’s

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patent rights and other proprietary information, but proceeded to copy Trimr’s bottle despite an

objectively high risk that it would infringe a valid patent. Because Perfect Shaker has continued

to manufacture, import, use, offer to sale, sell, and otherwise distribute the SHAKERS after

having actual knowledge of the ‘888 patent without any defense, Trimr is entitled to treble

damages under 35 U.S.C. § 284.

53. This is an exceptional case. Trimr is, therefore, entitled to an award of attorney’s

fees under 35 U.S.C. § 285.

FOURTH CLAIM FOR RELIEF

(Trade Dress Infringement – Lanham Act § 43(a))

54. Trimr re-alleges and incorporates by this reference the preceding allegations of

this Complaint.

55. Trimr is entitled to legal protection of its TRIMR trade dress under § 43(a) of the

Lanham Act, which trade dress includes, without limitation, a translucent hourglass mixer cup

(in various colors) topped by a lid with the same color as the cup, and a double vortex-shaped

piston-like agitator that moves vertically along a rigid axis.

56. The TRIMR trade dress acquired secondary meaning—consumers have come to

recognize the TRIMR trade dress as identifying Trimr as the source of the high quality TRIMR

trade dress.

57. Perfect Shaker has so closely imitated and/or copied the TRIMR trade dress that

the consuming public has been confused, and will continue to be confused, as to the source or

origin of Perfect Shaker’s products, and will erroneously believe that Perfect Shaker’s products

come from Trimr. In the eye of an ordinary observer, giving such attention as a purchaser

usually gives, the TRIMR and the Perfect Shaker Slim are substantially the same, and the

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resemblance is such to deceive an observer, inducing him to purchase the Slim supposing it to be

the TRIMR. Additionally, Perfect Shaker’s other shaped mixing cups that include a double

vortex-shaped agitator that moves vertically along a rigid axis are substantially the same, and the

resemblance is likely to deceive an observer.

58. On information and belief, Perfect Shaker’s copying of the TRIMR trade dress

was intentional; Perfect Shaker intended to create portable mixer bottles confusingly similar in

appearance to the TRIMR; and Perfect Shaker has succeeded in producing portable mixer

bottles, which are confusingly similar in appearance to the TRIMR.

59. The Perfect Shaker Slim and double vortex-shaped agitator are strikingly similar,

substantially duplicated, virtually identical, substantially identical, remarkably similar,

essentially duplicated, and/or closely imitated with the TRIMR.

60. Perfect Shaker’s acts of trade dress infringement have caused injury to Trimr.

61. Trimr may recover for its damages an award to compensate Trimr for injuries and

damages it has sustained as a result of Perfect Shaker’s conduct, which violates § 43(a) of the

Lanham Act.

62. Because Perfect Shaker’s acts were intentional, willful, and/or deliberate, Trimr is

entitled to an award of treble damages under § 43(a) of the Lanham Act.

63. Trimr is entitled to an award of pre-judgment interest for the damages sustained

as result of Perfect Shaker’s wrongful conduct.

64. Perfect Shaker’s wrongful, malicious, fraudulent, deliberate, willful, intentional,

and/or incredible conduct makes this an exceptional case entitling Trimr to an award of

attorney’s fees and costs under the Lanham Act.

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65. Trimr has no adequate remedy at law; Trimr has suffered, and continues to suffer,

irreparable harm as a result of Perfect Shaker’s acts, and is, therefore, entitled to preliminary and

permanent injunctive relief to enjoin Perfect Shaker’s wrongful conduct.

REQUESTS FOR RELIEF

WHEREFORE, Trimr requests that:

A. The Court preliminarily and permanently enjoin, in the U.S., Perfect Shaker, its

officers, directors, principals, agents, servants, employees, successors and assigns, and all others

aiding, abetting, or acting in concert or active participation therewith, from making, using,

importing, selling, or offering for sale, or otherwise distributing any product that infringes the

‘888 patent, including without limitation, the SHAKERS;

B. The Court enter judgment against Perfect Shaker for direct infringement of the

‘888 patent under 35 U.S.C. § 271;

C. The Court enter judgment against Perfect Shaker for trade dress infringement;

D. The Court order that Perfect Shaker account to Trimr for all sales, revenues, and

profits derived from the sale or other distribution of the SHAKERS and any similar infringing

product, and that Perfect Shaker pay to Trimr all compensatory damages to which Trimr is

entitled by law, including, without limitation, lost profits, reasonable royalties, price erosion

damages, entire market value damages, and convoyed sales damages;

E. The Court award Trimr up to three times the damages found pursuant to 35

U.S.C. § 284;

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F. The Court award Trimr against Perfect Shaker, the costs and reasonable attorney’s

fees and expenses incurred in this action pursuant to 35 U.S.C. § 285 and the equitable powers of

this Court;

G. The Court award Trimr pre-judgment interest against Perfect Shaker on all sums

allowed by law pursuant to 35 U.S.C. § 284; and

H. The Court award Trimr such further relief as the Court may deem appropriate.

JURY DEMANDED

Trimr demands that all claims and causes of action raised in this Complaint be tried to a

jury to the fullest extent possible under the Utah and United States Constitution.

DATED this 3rd day of May, 2018.

Respectfully submitted,

HOLLAND & HART LLP

/s/ Karina Sargsian

Romaine C. Marshall
Engels J. Tejeda
Karina Sargsian
Counsel for Plaintiff Trimr, LLC

Plaintiff’s address:

c/o HOLLAND & HART LLP

222 S. Main Street, Suite 2200
Salt Lake City, Utah 84101

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INDEX OF EXHIBITS

A - U.S. Patent No. 9,839,888.

B - Representative advertisements depicting the TRIMR trade dress.

C - Mutual General Nondisclosure Agreement.

D - A copy of the Perfect Shaker Slim bottle.

E - September 22, 2016, letter.

F - December 29, 2016 letter.

G - Advertisements.

10894765_1

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EXHIBIT “A”
 Case 2:18-cv-00364-EJF Document 2-1 Filed 05/03/18 Page 2 of 23
Illlll llllllll Ill lllll lllll US009839888B2
lllll lllll lllll lllll lllll lllll llllll llll llll llll

c12) United States Patent (10) Paten t No.: US 9,839,888 B2

Kershaw et al. (45) Date of Patent: Dec. 12, 2017

(54) SHAKEABLE CONTAINER WITH AGITATOR (2013.01): BOJE 311271 (2013.01); BOIE
1110082 (2013.01); BOIE 151005J2 (2013.01) ;
(71) Applicant: TRIMR, LLC, Murray, VT (US) B65D 4 710857 (2013.01); 801 F 221510022
(2013.01)
(72) Inventors: Kasey Kershaw, Holladay, UT (US); (58) Field of C lassification Search
Gary Moore, Salt Lake City, UT (US); CPC .. .. . . . .. . .. . ... .. . .. . .. . .. . .. . .. .. . . . ... ... ... .. . . 801 F 13/0022
Travis Winn, Murray, UT (US) USPC ................. 366/129, 130, 247, 308; 220/705,
2201707- 708
(73) Assign<--e: TRIMJ~, LLC, Draper, UT (US) See application file for complete search history.
( *) Notice: Subject to any disclaimer, the term of this (56) References Cited
pateut is extended or adjusted under 35
U .S.C. l 54(b) by 0 days. U.S. PATENT DOCUMENTS
1,201 ,284 A * 10/ 1916 Gilchrist ................. A47J43/27
(21) Appl. No.: 15/349,177 220/568
2,484,391 A * 10/ 1949 Treiss. Jr. A47J 43/27
(22) Filed: Nov. 11, 2016 141/297
2,613,107 A 10/ 1952 Hartnett
(65) Prior Publication Data 2,766,022 A J0/ 1956 Bender
0181 ,143 S I 0/ I 9 57 Gu ndelfinger
US 2017/0056850 Al Mar. 2, 2017 (Continued)
Related U.S. Application Data FOREIGN PATENT DOCUMENTS
(63) Continuation of application No. 13/ 662,169, filed on
Oct. 26, 2012.
CN 101227850 712008
CN 101 801250 8/2010
(60) Provisional application No. 61 /552,308, filed on Oct. (Continued)
27, 2011.
OTHER PUBLICATIONS
(51) Int. C l.
BOJE 13100 (2006.01) U.S. Appl. No. 291525,829, filed May 4, 20 15. Winn.
BOJF 11101) (2006.01) (Continued)
BOLF 15100 (2006.01)
BOJE 3108 (2006.01) Primary Examiner - Abbas Rashid
BOJE 3112 (2006.01 ) (74) Allomey, Agent, or Firm - Workman Nydegger
A47G 19122 (2006.01)
A47G 21118 (2006.01) (57) AllSTRACT
8650 4 7108 (2006.01) A hand-held shakeable container that includes au agitator
(52) U.S. C l. co1mected lo a straw tbat is used for the mixing of powder
CPC ...... BOJE 1310022 (2013.01): A47G J9/22 72 and liquid, or differing viscosity liquids.
(2013.01 ); A47G 2Jl18 (2013.01); BOJE 3108
(2013.0 1); BOJF 31088 (20 13.01) ; 80/F 3112 10 Claims, 15 Drawing Sheets

24

10
'--30

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US 9,839,888 B2
Page 2

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D729,569 s 5120 15 Herbsl "Camclback Groove." Camclback Products, LLC, n.d. Web.
0745,827 s 1212015 Sorensen Accessed Apr. 11, 2014. <http://www.camelbak.com/Sports-Recre-
0767,328 s 9/2016 Boroski ation!GrooveLanding/Main.aspx>.
200210040909 A I 4/2002 Goto Gay. Andy. "Cirkul Bottle: Flavor on the Fly." Kickstarter. lnc.,
2002/0048215 Al 4!2002 McGill Nov. 23, 2014. Web. Accessed Jan. 8, 2015. <htlps://wi.vw.
2004/0069783 A I 4/2004 Chen kicksrarler.com/projects/cirlrnl/cirkul-your-drink-your-way>.
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U.S. Appl. No. 13/662,169, Jul. 28, 2016, Final Office Action.
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* cited by examiner
 Case 2:18-cv-00364-EJF Document 2-1 Filed 05/03/18 Page 5 of 23

U.S. Patent Dec. 12, 2017 Sheet 1of15 US 9,839,888 B2

60
16

10 ~-i-uJI -12 10

20 25

FIG. 1 FIG. 2
 Case 2:18-cv-00364-EJF Document 2-1 Filed 05/03/18 Page 6 of 23

U.S. Patent Dec. 12, 2017 Sheet 2of15 US 9,839,888 B2

50

10

12

15

FIG. 3
 Case 2:18-cv-00364-EJF Document 2-1 Filed 05/03/18 Page 7 of 23

U.S. Patent Dec. 12, 2017 Sheet 3 of 15 US 9,839,888 B2

61 61

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 Case 2:18-cv-00364-EJF Document 2-1 Filed 05/03/18 Page 8 of 23

U.S. Patent Dec. 12, 2017 Sheet 4 of 15 US 9,839,888 B2

FIG. 8
 Case 2:18-cv-00364-EJF Document 2-1 Filed 05/03/18 Page 9 of 23

U.S. Patent Dec. 12, 2017 Sheet 5 of 15 US 9,839,888 B2

16

52
60

FIG.9A FIG. 98

FIG. 10
 Case 2:18-cv-00364-EJF Document 2-1 Filed 05/03/18 Page 10 of 23

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50

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 Case 2:18-cv-00364-EJF Document 2-1 Filed 05/03/18 Page 13 of 23

U.S. Patent Dec. 12, 2017 Sheet 9 of 15 US 9,839,888 B2

50

52

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FIG. 19

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56

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 Case 2:18-cv-00364-EJF Document 2-1 Filed 05/03/18 Page 14 of 23

U.S. Patent Dec. 12, 2017 Sheet 10 of 15 US 9,839,888 B2

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 Case 2:18-cv-00364-EJF Document 2-1 Filed 05/03/18 Page 15 of 23

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 Case 2:18-cv-00364-EJF Document 2-1 Filed 05/03/18 Page 16 of 23

U.S. Patent Dec. 12, 2017 Sheet 12 of 15 US 9,839,888 B2

17

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 Case 2:18-cv-00364-EJF Document 2-1 Filed 05/03/18 Page 17 of 23

U.S. Patent Dec.12, 2017 Sheet 13 of 15 US 9,839,888 B2

17

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 Case 2:18-cv-00364-EJF Document 2-1 Filed 05/03/18 Page 18 of 23

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 Case 2:18-cv-00364-EJF Document 2-1 Filed 05/03/18 Page 19 of 23

U.S. Patent Dec. 12, 2017 Sheet 15 of 15 US 9,839,888 B2

54

58

FIG. 27
 Case 2:18-cv-00364-EJF Document 2-1 Filed 05/03/18 Page 20 of 23

US 9,839,888 B2
1 2
SBAKEABLE CONTAfNE:R WITB AGITATOR Some embodimenlS include a system of using a straw and
agitator in conjunction with each other. In certain embodi-
PRIORITY STATEMENT ments, the straw is affixed to the lid of the shakeable
container and has a flanged base. In some embodiments, an
·n1e present appl ication is a continuation of U.S. appli- agitator is connected to the straw. TlliS keeps tbe agitator as
cation Ser. No. 13/662, 169 filed Oct. 26. 2012 entitled part of a larger piece and lowers the number of independent
"Shakeable Contai11er with Agitator" which claims priority parts. A conunon problem with a free and loose agitator is
to U.S. Provisional Application No. 61/552,308 filed Oct. the propensity for them to fall through dishwasher trays into
27, 2011 , entitled "Shakeable Container with Agitator." the cleaning mechanisms, and their propensity to be lost.
Each of the above are herein incorporated by reference in 10 In various embodiments, the shape and makeup of the
their entirety. agitator may vary greatly (see FIG. 22 for a partial display
of potential agitator shapes ai1d configurations). The agitator
BACKGROUND OF THE INVENTION
may be built of plastic, metal, or any other material. Jn
certain embodiments, the design of the agitator apparatus is
Field of the Invention 15
that of an hourglass shape, constructed of a metal wire coiled
"Ibis present disclosure relates to an agitator used for the
mixing of powder and liquid, or differing viscosity liquids, in a manner to create this shape. In some embodiments, the
within a fully enclosed hand-held shakeable container. constmction of the metal coil creates several points of close
Background and Related Art contact witb the straw to prevent biudiug, but is loose
TI1ere is a basic need 10 mix a liquid and powder, or to mix 20 enough that it will flow freely when shaking the container to
differing viscosities and/or density liquids. In some cases an mix the contents.
agitator is used to more greatly homogenize a product prior In certain embodiments, the agitator moves freely up and
to use, as in aerosol paint (typically a sealed aluminum or down the straw to aid in creating a homogeneous mixture of
metal container with a non-removable agitator that is dis- tbe contents. Some embodiments feature a coiled design of
carded after use).111ere is also a conuuon and recurring need 25 the agitator that creates a spring effect that magnifies the
for the mixing of products for edible consumption. Such inertia caused when shaking the container and works to
consumable products in need of mix111re include baby for- lessen the effort needed and lower the time required to fully
mulas, nutritional aud dietary supplements, powdered and niix the contents of the container. TI1e straw may be con-
liquid l'lavored drink mixes, pancake batters, medicinal stmcted of any material that will keep it rigid euough lo
products, etc. Powdert-'CI and/or ditlering density liquids are 30 allow the free movement of the agitator along the length of
difficult to mix into a smooth and homogenous suspension. the straw. In some embodiments, the agitator moves along
Without the use of an agitator as the catalyst to fully mix the the entire length of the straw. In other embodiments, the
ingredients, there is a co1mn<m problem of clumping pow- agitator moves along less than the entire length of the straw.
ders and suspended and non-mixed ingredients. in some embodiments, the main body of the straw is to be
35 linear and straight. In other embodiments, the main body of
SUMMARY OF THE INVENTION the straw is not straight but allows the agitator to move along
the length of the straw in response to the shaking of the
·n1e present disclosure relates to an agitator used for the container.
mixing of powder and liquid, or differing viscosity liquids, In certain embodiments, the straw is affixed tightly to the
within a fully enclosed hand-held shakeable container. 40 container's lid creating a water/airtight seal. In some
Implementation of the present device takes place in asso- embodiments, this seal can be created by a pressed fit
ciation with a shakeable container that includes, in some co1rnection. In other embodiments. this seal can be created
ernbodiments, a straw, agitator and lid. The ingredients by a threaded fit connection. 1n some ernbodiments, the
requiring mixture are enclosed in the shakeable container. In bollom portion of the straw has a l'langed end. ln certain
some embodiments, the container is shaken in an up and 45 embodiments, the flange serves as a base for the agitator to
down manner, causing the agitator to move up and down the "spring" or "bounce" off of when the bottle is shaken, and
affixed straw, bumping o'fr the bottom of the lid and the also serves to keep the agitator from falling o'frthe straw and
tlange at the bollom of the straw, increasing inertia from the becoming a loose and independent piece. ln some embodi-
springing motion to more rapidly and fully mix the contents ments, the flange touches the base of the container. In other
with less effort. There are many alternative shapes and sizes so embodiments, the flange does not touch the bottom of the
of the lid, container and straw, other than those expressly container.
disclosed herein. ln addition, the length of the straw may ln some embodiments, the straw is made of plastic. ln
vary to accommodate the si7..e of the container it is affixed to. certain embodiments, the lid is constmcted ofa compliment-
While the methods and processes disclosed herein have ing plastic material and, together, the lid and straw fonction
proven to be particularly usefol in the area of mixing liquid 55 to create a water and air tight seal. In some embodiments the
and powder, or to mix. di:ffereut viscosities ru1d/or density straw and lid can be separated. However in otber embodi-
liquids, those skilled iu the art can appreciate that the ments, the straw and lid form one. unitary part.
methods and processes can be used in a variety of different Jn some embodiments, the construction of the lid is such
applications and in a variety of dillerent areas of manufac- that is has a common flip up apparatus that serves to seal the
ture to yield a mixed product. Certain embodiments may 60 contents within the bottle when closed. or allow access to the
involve the mixing of tbe following list: powdered drirlks, contents of the bottle through sucking or pouring when open.
electrolyte pills, energy drinks, baby fonmrla, pancake bat- ln certain embodiments, when the straw attachment of the
ter, crepes, baking materials, salsa, sauces (hollandaise, lid is closed, it works as a common valve to block access to
gravy, etc.), oil and vinegar, salad dressings, smoothies, the contents of the battle and allows agitation without
juices, coffee and crean1er/ flavorings, alcohol mixed drinks, 65 spilling. In some embodiments, when the straw is in an open
medical-related substances (pills, laxatives, fiber drirlks, position, the coutents of the shakeable container can be
etc.), and non-edibles (paint, household cleaners, etc.). sucked from the bottle. In certain embodiments, a common
 Case 2:18-cv-00364-EJF Document 2-1 Filed 05/03/18 Page 21 of 23
us 9,839,888 82
3 4
silicone grommet is used 10 create a water and airtight seal
10 prevent any spillage or decrease in sucking efficiency
during consumption.
Some embodiments include a second opening on the lid.
In certain embodiments, this second opening is larger than 5
the opening or hollow portion of the straw. Jn some embodi-
ments, this second opening is covered or closed b a conunon
flip up top, or chug cap, that creates a water and air tight seal
when closed. bm allows for a "chug" or more rapid con-
sump tion of the contents of the bonle when open.
In some embodiments. the lid/straw combination is
a ffixed 10 Lhe bottle through a compression fit or threads, and
uti lizes a s ilicone washer to create a water and airtight seal
with the base o r the bottle.
These and other fean1res and advantages of the present
invention will be set forth or wil l become more folly
apparent in the description that follows. 'foe features and
adva ntages may also be realized and obtained by means o f
the instnamcnts and combin ations particularly pointed out in 20
the description that fo llows. Furthermore, the frat11Ces and
advamages of the invention may be learned by the practice
of the invention or will be obvious from the description. as
set forth hcreinaficr.
BRIEF DESCRJPTJON OF THE DRAWINGS
In order that the manner in which the above recited and
other features and advantages of the present invention arc
obtained. a more particular description of the invention will
be rendered by reference to specific embodiments thereof,
which are illustrated in the appended drawings. Understand-
ing that the drawings depict only typical embodiments of the
present invention and arc not, therefore, to be considered as
limiting the scope of the invention, the present invention will
be described and explai ned with additional specificity and
detail through the use of the accompanying drawings in
which:
FJGS. 1 and 2 illustrate a representative shakeable con-
taincr with an agitator and straw;
FIG. 3 illustrates a pcrSp(.'Ctive view o r a representative
shakeable container with an agitator and straw;
FJGS. 4 and 5 illustrate a representative shakeable con-
tainer with an agitator and straw:
FIG. 6 illustrates a top view of a representative lid:
171G. 7 illustrates a bottom view o f the base;
171G. 8 illustrates a perspective view o f a representative
shakeable container wit h an agi tator a nd straw:
FIG. 9a is a top view of an embodiment of the lid with a
flip-up straw in closed position and the lid cover:
FIG. 9b is a side view of an embodiment of the lid that
shows the flip-up straw in closed position and the lid cover:
FIG. JO shows the lid cover when removed from the lid
and the second opening and flip-up straw in ihe closed
position:
FJG. 11 illustrates a front view of the shakeable container
where the flip-up straw is in open position;
FIG. 12 illustrates a back view of the shakeable container
where the flip-up straw is in open position;
FJGS. 13 and 14 illustrate a side view of the shakea ble
container where lid cover is in open position and where
flip-up straw is also in open position;
FIG. 15 shows the lid in open positiou;
FIG. 16 illustrates the underside of the base and the
topside of the lid when in open position;
FIG. 17 illustrates a cut-away view or a representative
straw and agitator:
FIG. 18a illustrates a representative agitator together with
a detachable straw and lid:
FIG. 18b illustrates a close up perspective view of the
bollom or straw and flange:
FIG. 18c illustrates a cut away view of the shakeable
container:
FIG. 19 illustrates an exemplary embodiment or the lid
10
with the flip-up straw in a closed position:
FIG. 20 illustrates an exemplary embodiment of the lid
with the llip-up straw in an open position:
FIG. 21 illustrates an exemplary embodiment of the lid
15 with a S'-'COnd opening and a chug cap;
FIG. 22 illustrates various exa mples of agitators;
FIGS. 23 and 24 show selective portions of shakeable
container;
FIG. 25 shows examples of various shapes of grids; and
FIG. 26 shows a mesh screen through which the straw
nms.
FIG. 27 shows a perspective view of the shakeable
container.
25
DEl:l\ILED DESCRIPTION OF THE
INVENTION
30 FIG. 1 shows an exemplary shakeable container 10
according to at least one embodiment. In some embodi-
mems shakeable container 10 includes a straw U , agitator
14. and lid J 6. In ccnain embodiments, the straw 1 2 includes
a flange 18 located on a boll om port ion 20 of the straw 12
35 and a threaded ponion 22 (not shown) located on a top
portion 24 of the straw .12 .
In some embodiments, the agitator 14 is that of an
hourglass shape, cons tructed of a metal wire coiled in a
manner 10 create this shape. In cenain embodimcots, the
40 agitator 14 creates several po ints o r contact with straw 12
creating a coiu1ecti on with the straw 12 that allows the
agitator 14 to move freely up and down straw 12 when the
shakeable conta iner 10 is shaken. In some embodiments,
flange 18 is in contact with a base 25 of shakeable container
45 10. In other embodiments, llange 18 does not contact the
base 25 of shakeable container 10.
FIG. 1 also shows a view of the shakeable container 10,
where the shakeable container 10 has a flip-up straw 50 in
closed position. In addi tion, FIG. 1 shows lid cover 60 in
50 closed position.
FIG. 2 shows an exemplary shakeable container 10 from
the reverse side of FIG. 1. In particular. FIG. 2 shows lid 16
from the opposite view as is shown in FIG. 1. In this view.
the flip-up straw 50 is not viewable because it is in closed
55
position.
FIG. 3 shows an exemplary shakeable container 10 in a
perspective view. From this view, the agitator 14 is shown in
an hour-glass shape where the separation of wires 15 of
60 agi tator 14 can be seen before they have been compressed.
In this embodimen t, the agi tator 14 is positioned toward the
bottom of the straw 12. FIG. 3 also shows nip-up straw 50
in closed position and lid cover 60 in closed position. Jn this
em bodiment of lid cover 60, lid cover 60 has a lip 61. In
65 some embodiments, lid 61 serves as a handle or gripping
device on which a user can place his or her band to assist in
opening the lid cover 60.
 Case 2:18-cv-00364-EJF Document 2-1 Filed 05/03/18 Page 22 of 23
US 9,839,888 B2
5 6
FIG. 4 shows shakeable container 10 from a side view
where lip 61 of lid cover 60 is on the left side of shakeable
container 10. This embodiment also shows that flange 18
does not contact the base 2S of shakeable container 10.
Similarly, FIG. S shows the reverse side of shakeable
container l 0 where lip 61 of lid cover 60 is on the right side
of shakeable container 10.
FIG. 6 is atop view of an embodiment of the lid 60 that
shows the fl ip-up straw SO in closed position and lid cover
60 in a closed position.
FIG. 7 shows a bottom view of an embodiment of the
shakeable container 10 that shows the bottom view of base
25.
FJG. 8 shows an embodiment of shakeable container 10
from a bottom perspective view. Prom this view, one can see
the bottom side of base 25 as well as the bottom side of
agitator 14 where space between wires lS can be seen. In
addition, FIG. 8 shows the underside of lid 16 where the
underside of sec<>nd openi ng S6 can also be seen including
the bottom side of chug cap S8 when chug cap S8 is inserted
into the second opening and where lid cover 60 is in closed
position. In addition, FIG. 8 shows the underside of flip-up
straw SO in closed position. In this embodi111ent, the content,
whet her it is liquid or otherwise, of shakeable container 10
is secure and allows a user I<> freely and aggressively shake
the exemplary shakeable container 10 without spilling the
contents.
FJG. 9a is a top view of an embodiment of the lid 16 that
shows the fl ip-up straw SO in closed position and lid cover
60. FIG. 9b is a side view of an embodiment of the lid 16 that
shows the flip-up straw 50 in closed position and lid cover
60.
FJG. JO is an embodiment that shows lid cover 60 when
removed from lid 16. FIG. 10 also shows second opening S6
and flip-up straw 50 in closed position.
FIG. 11 shows a front view of shakeable container 10
where flip-up straw 50 is in open position and where lid
cover 60 is n<>I attached. FIG. 12 shows the reverse side as
is shown in FIG. 11 where flip-up straw SO is also in open
position.
FIG. 13 shows a side view of shakeable container 10
where lid cover 60 is in open position and where nip-up
straw SO is also in open position. From this view, chug cap
S8 can be seen. FIG. 14 shows the reverse view from FIG.
13 and similarly shows flip-up straw 50 in open position and
lid cover 60 in open position, as well as chug cap S8.
PIG. 1S shows lid 16 in open position. FIG. lS also shows
the top view of second opening S6 and the bottom view of
chug cap 58. In addition, FIG. 15 shows flip-up straw 50 in
open position and inner straw channel S4. FIG. 16 shows the
underside of base 25 and it shows the topside oflid cover 60,
where lid cover 60 is in open position.
FJG. 17 shows an embodirnent of the agitator 14 in the
context of a cutaway view of straw 12 where agitator 14 has
a first contact point 26. a second contact point 28 and a third
contact point 30 with straw 12. ln certain embodiments, the
three contact p<>ints allow the agitator to be coiled closely
around the circumference of the straw 12 without being
tightly affixed to the straw 12. This design shown in FIG. 17
serves to keep the agitator 14 from binding on the straw 12,
but allows it to move freely up and down the straw 12 to aid
in creating a homogeneous mixture ()f the contents. In
addition, the coiled design of the agitator 14, as is shown in
FIG. 17 creates a spring effect that magnifies the inertia
created when shaking the shakeable container 10 and works
to lesseu the effort nt--eded and lower the time required to
folly mix the contents of the shakeable container 10.
PIG. 18a shows various embodiments of agitator 14 as it
moves up and down straw 12 because shakeable container
10 has been shaken. For example, in this embodiment, FIG.
18a shows agitator 14 in a compressed position 32 as
agi tator 14 is positioned near the bottom of straw 12 and
near flange 18. ln this embodiment, the flared shape of fla nge
18 :ftmctions as a base for the agitator 14 to spring or botmce
off of when shakeable container 10 is shaken, and also
serves to keep the agitator from falling off the straw and
10 becoming a loose and independent piece.
PIG. 18a also shows agitator 14 in an expanded position
34. In certain embodiments, when agitator 14 reaches the top
of straw 12 near to or touching the lid 16, agitator 14 goes
into compressed position 32.
15 P'I G. J8a also shows that iu various emb<>diments straw
12 is affixed to lid 16 creating a watertight and airtight seal.
In certain embodiments, this seal is created by a pressed fit
connection. In other embodiments, this seal between the
straw 12 and lid 16 is created by a threaded fit connection.
20 ln some embodiments, straw 12 is comJected to lid 16 via the
straw-connector 36.
In some embodiments, the straw 12 may be constnicted of
any material that is rigid enough to bold its shape under the
strain of shaking the shakeable container 10, easily cleanable
25 and dishwasher safe. aud hygieuic enough to be used with
ingestibles. ln certain embodiments, the straw 12 is made of
plastic.
Jn some embodiments, straw 12 and lid 16 can be sepa-
rated, as is shown FIG. 18a. Jn other embodiments, straw 12
30 and lid 16 form a singular part of shakeable container 10 and
cannot be separated.
FIG. 18b shows a close up perspective view of the bottom
of straw 12 and flange 18.
FIG. 18c shows a cut away view of the shakeable con-
35 tainer 10 that shows straw 12 with a ring 19 shown near the
base of straw 12. In some embodiments, ring 19 ftmctions to
help keep the agitator 14 from falling off the end of the straw
12. PIG. 18c also shows an embodiment where straw 12 and
ring 19 do not touch the base 25 of the shakeable container
40 10.
FIG. 19 shows an exemplary embodiment of lid 16 with
the flip-up straw 50 that includes a holl<>w portion S2 and
shows flip-up straw SO in a closed position. 111e contents of
the shakeable container 10 are sealed within the shakeable
45 container 10 when the flip-up straw 50 is in closed position.
When closed, the flip-up straw 50 of the lid 16 works as a
common valve to block access to the contents of the shake-
able container 10 and allows agitation without spilling.
FIG. 20 shows an exemplary embodiment of lid 16 that
so shows the flip-up straw 50 in an open position. In this
embodiment, hollow portion S2 is aligned with an inner
straw channel 54, allowing fluid to flow through the inner
straw cbanuel S4 and hollow portion S2. In some embodi-
ments, a user may access the contents of the shakeable
55 container 10 through sucking when the flip-up straw SO is ire
an open position.
FIG. 21 shows an embodiment that includes a second
opening 56 aud a chug cap S8. Wl1en secured in the second
opening 56, the chug cap 58 creates a water tight and airtight
60 seal. When the chug cap 58 is removed from the second
opening S6, the user can drink from the shakeable container
l 0 by accessing the contents through the second opening S6.
In some embodiments, the chug cap 58 is physically con-
nected to the lid 16 even when in an open position. In certain
65 embodiments. chug cap 58 can be opened via a flip-up top.
Jn other embodiments, the chug cap 58 is completely remov-
able from the lid 16.
 Case 2:18-cv-00364-EJF Document 2-1 Filed 05/03/18 Page 23 of 23
us 9,839,888 82
7 8
FIG. 22 shows examples of agitators 14 used in various
embodiments. For example, FIG. 22 shows three examples
of agitators shaped in an hourglass configuration as agitators
38. 40 and 48. Other shapes include: an oval-shaped agitator
42. where the equatorial diameter is greater than the polar
diameter: triangular-shaped agitator 44: the inverse-hour
glass agitator 46: substantiaUy rectangular-shaped agitator
62. and continuous loop agitator 64. FlG. 22 also shows a
cut-away view of continuous loop agitator 64.
FIG. 23 shows selecti ve portions of shakeable container
10 . In pa rtic ul ar. FIG. 23 shows lid 16 in closed position,
straw 12 and agitator 14. In this embodiment, aoitator J4 as
in t~c ea rlier embodiments may move along sub~antiaUy the
~ntire lengtb ~f straw alternatively, agitator 14 may remain
111 a f'lx<..'CI pos1l1on relative to straw 12. Where agitator 14
rema ins in a fixed position, the coutems of shakeable con-
tainer I 0 moves through the grids 17 of agitator 14 when a
user shakes shakeable container 10.
FIG. 24 shows an alternative embodiment of agitator 14
where grids l 7 are slanted.
FIG. 25 shows examples of various shapes of grids 17 that
arc a lso effective in mixing the contents of shakeable con-
ta iner 10.
FIG. 26 is an embodiment that shows a mesh screen 66
through which straw 12 runs. In this embodiment, mesh
screen 66 is shaped as a grid. I lowever, in other embodi-
ments, mc:ih screen 66 may be shaped in any other shape or
configuration. FIG. 9 also shows lid 16 in an open position.
FIG. 27 shows a perspective view of shakeable container
l ? where lid 16 is in open position. In this view. not only is
flip-up straw 50 shown in open position but also lid cover 60
is shown in open position. FIG. 27 also shows second
opening 56. where chug cap 58 is not inserted into second
opening 56. If the nip-up straw 50 were closed, one could
access the conten t o f shakeable container 1 Oby drinking out
o f the second opeuing 56. 1f lid cover 60 were in closed
position, a user could access the contents of shakeable
container 10 by drinking out o f nip-up straw SO because
fluid would be able to exit shakeable container 10 by
traveling out inner slraw channel 54.
Thus, as discussed herein, the embodiments of the present
in vention embrace a shakeable container that includes. in
some embodiments, a slraw, agitator and lid.
Tiie p~esent invention may be embodied iu other specific
forms without departing from its spirit or essential c harac-
tcristics. The described embodiments are to be considered in
a ll respects only as iUustrative and not restrictive.
Wliat is claimed is:
J . A shakeable beverage bottle comprising:
a container having a closed bottom:
a lid rcmovably connectable to the container:
5 a substantially vertical member entirely disposed within
the container, the substantially vertical member having
a top end and a bottom end. the top end extending
downward from the lid and the bonom end having a
flange thereon; and
10 a n agi tator connected to the substantially vertical member,
whe.rei n the agitator is connected to the substantially
vertical member a t three contact points. including a first
contact point at or near a top of the agitator. a second
comacl po int at a mid-section of the agitator, and a third
15 conta~t po int at or near a bottom of the agitator,
wherein the agitator consists o f a coiled wire wherein
there is no contact between the agitator and' the sub-
stantially vertical member except at the first, secood,
and third contact poiots.
20 2. The shakeable beverage bottle of claim 1. wherein the
substantially verti cal member is rcmovably connected to the
lid.
3 . The shakeab le beverage bottle of claim 1, wherein the
bollom end of tbe substantially vertical member is not
25 opcrably connected to a bottom portion of the container.
4 . TI1e shakeable beverage bottle of claim 1. wherein the
substantially vertical member serves as a substantial vertical
axial member about which the agitator is disposed. so that
the substantially vertical member marks a vertical axis of the
30 agitator.
5. The shakeable beverage bottle of claim 1. wherein the
agitator is movable longitudinally along the substantia lly
vertical member.
6. The shakeable beverage bottle of claim 1. wherein the
35 agi tator is compressible from top to bottom.
7. The shakeable beverage bottle of claim 1 further
comprising an opening in the lid from which a t;ser may
~ri~ contents of the container. wherein the opening in the
lid, 1s ~oven..~ by a flip-up top. and wherein the opening is
40 on-axis relative to the substantially vertical member.
8. The shakeable beverage bottle of claim 1, wherein the
agitator consists or a coiled metal wire.
9. The shakeable beverage bottle of claim 1, wherein the
agitator is a continuous loop.
45 10. The shakeable beverage bottle of claim 1, wherein the
substan tially vertical member is a straw.
• • • • •
Case 2:18-cv-00364-EJF Document 2-2 Filed 05/03/18 Page 1 of 3

EXHIBIT “B”
Case 2:18-cv-00364-EJF Document 2-2 Filed 05/03/18 Page 2 of 3
 Case 2:18-cv-00364-EJF Document 2-2 Filed 05/03/18 Page 3 of 3

#TRIMR 2, LOGIN i\:J 0

Atrimr SHOP STORY PRIVATE LABEL CONTACT I

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Case 2:18-cv-00364-EJF Document 2-3 Filed 05/03/18 Page 1 of 4

EXHIBIT “C”
 Case 2:18-cv-00364-EJF Document 2-3 Filed 05/03/18 Page 2 of 4

MUTUAL GENERAL NONDISCLOSURE AGREEMENT

THIS AGREEMENT is entered into and is effective as of the date of the

last signature hereto, by and between Trimr, a Utah Limited Liability Company,
with its offices at 230 South 500 West #205, Salt Lake City, UT 84101
and____Perfect Shakers________________, a ____Canadian
Corporation____________________ company having its principal place of
business at __9925 60 Ave, Edmonton, AB
T6E0C7___________________________________ (hereinafter referred to as
"client").

WHEREAS Trimr has certain proprietary information related to

manufacturing and product development, including international transportation of
said goods. Whereas Trimr and client have certain proprietary information related
to its customers, products and general business strategies, which Trimr and
client wish to exchange, and Trimr and client are willing to safeguard each other's
proprietary information.

NOW THEREFORE, Trimr and client agree as follows:

1. For the purpose of this agreement, PROPRIETARY INFORMATION

shall mean any item which is transferred during the term of this Agreement,
verbally or in writing, whether in human or machine readable form, which is
identified or marked as "PROPRIETARY" or "CONFIDENTIAL" or comparable
legend. Information transferred verbally will only be considered proprietary if it is
identified as such at the time of transfer and within thirty (30) days listed on or
embodied in a document marked as set forth above and provided to the receiving
party by the disclosing party. Regardless, both parties agree to treat all
information exchanged as proprietary and confidential unless said information is
clearly in the public domain.

2. Unless otherwise expressly authorized by the sender, recipient agrees,

for a period of five (5) years from the date of receipt of PROPRIETARY
INFORMATION, to use the same measures to avoid dissemination of each such
proprietary document, including partial or complete copies thereof, to any third
party as recipient employs with respect to information of its own that it does not
desire to be disseminated.

3. Notwithstanding any other provisions of this Agreement, sender

acknowledges that PROPRIETARY INFORMATION shall not include information
which:

a) is or becomes publicly known through no wrongful act on recipient's

part: or

Trimr. 230 South 500 West #205, Salt Lake City, UT 84101
Phone 949.370.0237 :: Fax 949.335.9045 :: info@killgeneric.com
 Case 2:18-cv-00364-EJF Document 2-3 Filed 05/03/18 Page 3 of 4

b) is already known to recipient at the time of disclosure and can be

substantiated in a clearly documented and verifiable fashion; or
c) is rightfully received by recipient from a third party without breach of
the Agreement; or
d) is independently developed by recipient without breach of this
Agreement prior to disclosure by sender; or

e) is furnished to a third party by sender without a similar restriction on

the third party's rights; or
f) is explicitly approved for release by written consent of sender.

4. No right or license under any intellectual property right, expressed or

implied, relating to the PROPRIETARY INFORMATION furnished under this
Agreement is granted to recipient.

5. Neither this Agreement nor the disclosure or receipt of PROPRIETARY

INFORMATION shall constitute or imply any promise or intention to enter into
any contract or other business relationship or to make any purchase or products
or services by either party or its affiliated companies or any commitment by either
party or its affiliated companies with respect to the present or future marketing of
any product or service.

6. All PROPRIETARY INFORMATION shall remain the property of the

disclosing party and shall be returned upon the written request of the disclosing
party or upon the receiving party's determination that it no longer has a need for
such PROPRIETARY INFORMATION.

7. The parties acknowledge that any products, software and technical

information provided under this Agreement are subject to U.S. export laws and
regulations and any use or transfer of such products, software and technical
information must be authorized under those regulations. The receiving party
agrees that it will not use, distribute, transfer or transmit the products, software or
technical information, even if incorporated into other products, except in
compliance with U.S. export regulations. If requested by the disclosing party, the
receiving party also agrees to sign written assurances and other export-related
documents as may be required for the disclosing party to comply with U.S. export
regulations.

8. Each party agrees that all of its obligations undertaken herein shall
survive and continue after any termination of this Agreement.

9. This Agreement constitutes the entire understanding between the

parties hereto as to the PROPRIETARY INFORMATION disclosed and received
and merges all prior discussions between them relating thereto.

Trimr. 230 South 500 West #205, Salt Lake City, UT 84101
Phone 949.370.0237 :: Fax 949.335.9045 :: info@killgeneric.com
 Case 2:18-cv-00364-EJF Document 2-3 Filed 05/03/18 Page 4 of 4

10. No amendment or modification of this Agreement shall be valid or

binding on the parties unless made in writing and signed on behalf of each of the
parties by their respective duly authorized officers or representatives.

11. This Agreement shall be governed by the laws of the State of Utah.
Either party may terminate this Agreement at any time by providing written notice
to the other party.

12. This Agreement shall be binding upon and shall inure to the benefit of
the heirs, assigns and successors-in-interest of each party hereto.

IN WITNESS WHEREOF, Trimr and client have caused this Agreement to

be executed by their duly authorized representatives.

Client Trimr.

By: __________________________ By:________________________

Travis J Winn

Title: __Co-Founder/Vice President________ Title: CEO

Date: __May 6, 2013______________ Date: March 8, 2013

Trimr. 230 South 500 West #205, Salt Lake City, UT 84101
Phone 949.370.0237 :: Fax 949.335.9045 :: info@killgeneric.com
Case 2:18-cv-00364-EJF Document 2-4 Filed 05/03/18 Page 1 of 2

EXHIBIT “D”
 2 of 2 I LOGIN I
Case 2:18-cv-00364-EJF Document 2-4 Filed 05/03/18 PageRECISTER ~ 0 ltems(a)/St.00 CON

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Case 2:18-cv-00364-EJF Document 2-5 Filed 05/03/18 Page 1 of 3

EXHIBIT “E”
 Case 2:18-cv-00364-EJF Document 2-5 Filed 05/03/18 Page 2 of 3

September 22, 2016

Darren Thompson
President
Perfect Shakers
9925 60 Ave.
Edmonton, AB T6E0C7
CANADA

Re: Violation of Trimr Intellectual Property

Our File: 20202.13

Dear Mr. Thompson:

We are counsel to Trimr LLC (“Trimr”) in various legal matters. We have recently been
made aware that Perfect Shakers has been manufacturing and selling shaker bottles that are near
copies of the shaker bottles marketed and sold by Trimr. This letter is intended to inform you of
Trimr’s legal rights and appropriate remedies.

As you are aware, in May 2013 Perfect Shakers and Trimr executed a Mutual General
Nondisclosure Agreement (“NDA”) in order to explore a potential purchase of Trimr by Perfect
Shakers. In reliance upon protections conveyed under the NDA, Trimr thereafter disclosed to
Perfect Shakers a large quantity of information that was and is confidential and proprietary to
Trimr, including customer lists, business plans, marketing proposals, manufacturing contacts,
product design, and financial information. Notwithstanding Perfect Shakers agreement in the
NDA to “treat all information exchanged as proprietary and confidential,” it is apparent that
Perfect Shakers has converted the proprietary and confidential information of Trimr for its own
use.
It cannot be disputed that Perfect Shakers copied the Trimr design, including but not
limited to, the interior design of Trimr’s shaker bottle, with a double vortex-shaped piston-like
agitator that moves vertically along a rigid axis. Further, it is evident that Perfect Shakers
illicitly used for its own benefit Trimr’s business plans, manufacturing information, financial
information, and customer lists. Indeed, Perfect Shakers has specifically targeted the very
customers which were disclosed under the NDA. Finally, Perfect Shakers has completely copied
the marketing strategies of Trimr, including but not limited to, marketing at trade shows by
removing the top of the bottle and shaking the bottle so that the agitator makes a distinctive noise
as it travels the length of the rigid axis. Perfect Shakers’ copying of Trimr’s marketing strategies
has resulted in actual confusion among the consuming public at the Golds Gym Show in June
2016, in Dallas, Texas, among others. Adding insult to injury, Perfect Shakers’ lower prices
 Case 2:18-cv-00364-EJF Document 2-5 Filed 05/03/18 Page 3 of 3
Darren Thompson
Perfect Shakers
April 17, 2018
Page 2
---------------------------------------------

have diverted sales from Trimr to Perfect Shakers. Pursuant to Section 11 of the NDA, Trimr
intends to enforce its rights in the Utah courts.

Perfect Shakers’ violations of the NDA entitle Trimr to a number of remedies. First,
Perfect Shakers’ actions constitute breach of contract, and have resulted in irreparable harm to
Trimr, entitling Trimr to seek compensatory and punitive damages under Utah law.

Second, Perfect Shakers’ violations of the NDA constitute trade secret misappropriation
under the Utah Uniform Trade Secrets Act, Utah Code § 13–24–1, et al (“UTSA”). It cannot be
disputed that the information disclosed to Perfect Shakers by Trimr constitutes trade secrets of
Trimr. Violation of the UTSA entitles Trimr to seek, and Trimr will seek, injunctive relief,
actual damages, a reasonable royalty attributed to all Perfect Shakers’ sales during the 5 year
term of the NDA, and Trimr’s reasonable attorneys’ fees. Further, because Perfect Shakers’
violations were willful and malicious, the court may double the monetary damages award to
Trimr.

Third, Perfect Shakers’ actions constitute Federal Unfair Competition in violation of the
Lanham Act § 43(a), 15 U.S.C. § 1125(a). Pursuant to Section 35 of the Lanham Act (15 U.S.C.
§ 1117), the Perfect Shakers’ acts of unfair competition entitles Trimr to potentially recover: (1)
the profits Perfect Shakers has derived from sales of shaker bottles during the 5 year term of the
NDA; (2) any damages sustained by Trimr during the 5 year term of the NDA; and (3) the costs
of any action brought against Perfect Shakers. Moreover, if the unfair competition is deemed to
be willful, Trimr may be entitled to an award of three (3) times such profits or damages,
whichever is greater, together with reasonable attorneys’ fees. (See Section 35(b) Lanham Act,
15 U.S.C. § 1117(b).)

Finally, Trimr has filed multiple patent applications for protection of its shaker bottle
design. Trimr intends to take every measure to protect its patent rights once these patents issue.

The foregoing is not intended to prejudice Trimr’s right to pursue alternative or

additional measures available to it under the relevant laws, such as seeking compensation for, or
damages resulting from Perfect Shaker’s illicit actions. If you would prefer to not address this
matter in Utah courts, please call us immediately to discuss a potential resolution. If we do not
hear from you by September 30, 2016, we will assume Perfect Shakers would prefer to address
this matter in the Utah courts.

Sincerely,

WORKM AN │NYDEGGER
A P ROFESSIONAL CORPORATION

MATTHEW A. BARLOW
Case 2:18-cv-00364-EJF Document 2-6 Filed 05/03/18 Page 1 of 3

EXHIBIT “F”
 Case 2:18-cv-00364-EJF Document 2-6 Filed 05/03/18 Page 2 of 3

~ {TOEL
201 S. Main Street, Suite 1100
Salt Lake City, UT 84111
T. 801.328.3131
~ RIVES LLP F. 801.578.6999
www.stoel.com

T IMOTHY K. CONDE
D. 801.578.6908
tirnothy.conde@stoel.com

December 29, 2016

VIA EMAIL

Da1Ten Thompson
Perfect Shakers, Inc.
darren@perfectshaker.com

Re: TRIMR

Dear Mr. Thompson:

We represent TRIMR, LLC, ("TRIMR"). As you know, Perfect Shakers, Inc. aka PerfectShaker,
("PerfectShaker") approached TRIMR in 2013 regarding a potential purchase ofTRlMR by
Perfect Shakers. During the negotiations between TRIMR and PerfectShaker, the parties entered
into a nondisclosure agreement (the "Agreement") to ensure that PerfectShakes would maintain
as confidential TRIMR's confidential and proprietary information. Pe1fectShaker also agreed
that all proprietary information TRIMR shared would remain TRIMR' s property and that
PerfectShaker would return it upon the conclusion of the negotiations.

Immediately after the negotiations ended without a purchase, PerfectShaker began to sell
products that copy TRIMR's proprietary agitator as well as TRIMR's bottle designs.
PerfectShaker's sudden competition with TRIMR was enabled because of the proprietary
information TRIMR provided to PerfectShaker. PerfectShaker's use of that information to
compete against TRIMR violates the Agreement as well as the implied covenant of good faith
and fair dealing that adhered to the Agreement under Utah law. We also continue to investigate
whether PerfectShaker's products infringe TRIMR' s patents and trade dress.

In addition to breaching the Agreement, PerfectShaker recently hired Natalie Lish, one of
TRIMR's former employees, knowing she is bound by a non-compete agreement with TRIMR.
And we suspect that discovery will reveal that Ms. Lish has provided PerfectShaker with
TRIMR's trade secrets, confidential information, or other proprietary details ofTRIMR's
operations. Perfect Shaker's conduct constitutes tortious interferenc.e with the non-compete
agreement between Ms. Lish and TRIMR.

900942751 0046467-00002
 Case 2:18-cv-00364-EJF Document 2-6 Filed 05/03/18 Page 3 of 3

Darren Thompson
December 29, 2016
Page2

I understand that you have been in contact with TRIMR's Chief Executive Officer, Travis Winn,
and wish to obtain a business solution to these disputes. TRIMR is willing to consider such a
solution and would prefer to resolve the disputes without the expense of litigation. If you still
desire to reach a business solution and avoid litigation, please respond w ith a proposal by no
later than January 20, 2017.

Very truly yours,

9()094275.1 0046467-00002
Case 2:18-cv-00364-EJF Document 2-7 Filed 05/03/18 Page 1 of 4

EXHIBIT “G”
Case 2:18-cv-00364-EJF Document 2-7 Filed 05/03/18 Page 2 of 4
 Case 2:18-cv-00364-EJF Document 2-7 Filed 05/03/18 Page 3 of 4

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 Case 2:18-cv-00364-EJF Document 2-7 Filed 05/03/18 Page 4 of 4

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 Case 2:18-cv-00364-EJF Document 2-8 Filed 05/03/18 Page 1 of 1
JS44 (Rev. 11/15) CIVIL COVER SHEET
The JS 44 civ il 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 requtred for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (S/iE INSTRUCTIONS ON Nl:XTPAGE OF 1HIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

TRIMR, LLC, PERFECTSHAKER.COM, INC.,

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant
(I:XCHPTIN U S. l'l.A/N11FF('ASl:°S) (IN U. S. Pl.A/NT/fl: C'ASHS ONLY)
NOTE: IN LAND CONDEM NATION CAS ES , USE THE LOCATION OF
TH E TRACT OF LAND INVOLVED.

( C) Attorneys (Firm Name, Address, and Telephone Numher) Attorneys (If Known)
Romaine C. Marshall/Engels J. Tejeda/Karina Sargsian
HOLLAND & HART LLP, 222 S. Main Street, Su ite 2200, Salt Lake City,
Utah, 8410 1, Telephone: (801) 799-5800

II. BASIS OF JURISDICTION (!'lace an "X" in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Box/or Plaintiff
(For Diversity Cases Only) and One Box for Defendant}
0 1 U.S. Govemmcnt ~3 Federal Question PTF DEF PTF DEF
Plaintiff (U. .\'. Government Not a Party) Citizen of This State ~ I 0 I Inc0tvorated or Principal Place 0 4 0 4
of Business In This State

0 2 U.S. Government 0 4 Diversity Citizen of Another State 0 2 0 2 Incorporated and Principal Place 0 5 0 5
Defendant (Indicate Citizenship of Parties in !rem 111) of Business In Another State

Citizen or Subject of a 0 3 ~ 3 Foreign Nati on 0 6 0 6

IV NATURE OF SUIT (Place an 'T'
, in One Box Only)
I CONTRACT
0 110 Insurance
0 120 Marine
0 130 Miller Act
0 140 Negotiable Instmment
0 150 Recovery of Overpayment
& Enforcement of Judgment
0 l 5 1 Medicare Act
0 152 Recovery of Defaulted
Student Loans
(Excludes Veterans)
0 153 Recovery of Overpayme nt
of Veteran's Benefits
0 I 60 Stockholders' Suits
0 190 Other Contract
0 195 Contract Product Liability
0 196 Franchi se
I REAL PROPERTY
0 210 Land Condemnati on
0 220 Foreclosure
0 230 Rent Lease & Ejectment
0 240 Torts to Land
0 245 Tort Product Liability
0 290 All Other Real Property
Foreign Coun
TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES I
PERSONAL INJURY PERSONAL INJURY 0 625 Drug Related Seizure o 422 Appeal 28 use 158 0 375 False Claims Act
0 310 Airplane 0 365 Personal Injury - of Property 2 l USC 88 1 0 423 Withdrawal 0 376 Qui Tam (3 1 USC
0 3 I 5 Airplane Product Product Liabili ty 0 690 Other 28 USC 157 3729(a))
Liability 0 36 7 Health Care/ 0 400 State Reapportionment
0 320 Assault, Libel & Phannaccutical PROPERTY RIGHTS 0 4 I 0 Antitrust
Slander Personal Injury 0 820 Copyrights 0 430 Banks and Banking
0 330 Federal Employers' Product Liabil ity ?J. 830 Patent 0 450 Commerce
Liability 0 368 Asbestos Personal 0 840 Trademark 0 460 Deportation
0 340 Marine Injury Prod uct 0 470 Racketeer Influenced and
0 345 Marine Product Liability LABOR SOCIAL SECURITY Com1pt Organizations
Liability PERSONAL PROPERTY 0 710 Fair Labor Standards 0 86 1 HIA ( 1395ff) 0 480 Consumer Credit
0 350 Motor Veh icle 0 370 Otl1er Fraud Act 0 862 Black Lung (923) 0 490 Cable/Sat TV
0 355 Motor Vehicle 0 37 I Truth in Lending 0 720 Labor/Management 0 863 D!WC/DIWW (405(g)) 0 850 Securities/Commodities/
Product Liability 0 380 Other Pe rsonal Relations 0 864 SS!D Ti tle XVI Exchange
0 360 Other Personal Property Damage 0 740 Rai lway Labor Act 0 865 RSI (405(g)) 0 890 Other Statutory Actions
Injury 0 385 Property Damage 0 75 l Family and Medical 0 89 1 Ai,>ricultural Acts
0 362 Personal Injury - Product Liability Leave Act 0 893 Environmental Matters
Medical Malpractice 0 790 Other Labor Litigation 0 895 Freedom oflnfonn ation
CIVIL RIGHTS PRISONER PETITIONS 0 79 1 Employee Retirement FEDERAL TAX SUITS Act
0 440 Other Civil Rights Habeas Corpus: Income Security Act 0 870 Taxes (U .S. Plaintiff 0 896 Arbitration
0 44 1 Voting 0 463 Alien Detainee or Defendant) 0 899 Administrative Procedure
0 442 Empl oyment 0 510 Motions to Vacate 0 87 1 !RS-Third Party Act/Review or Appeal of
0 443 Housing/ Sentence 26 USC 7609 Agency Decision
Accommodations 0 530 General 0 950 Constitutionality of
0 445 Amer. w/Disabilities - 0 535 Death Penalty IMMIGRATION State Statutes
Employment Other: 0 462 Natura li zati on App lication
0 446 Amer. w/D isabi lities - 0 540 Mandamus & Other 0 465 Other lmmii,>rati on
Other 0 550 Civi l Rights Actions
0 448 Education 0 555 Prison Condition
0 560 Civil Detainee -
Conditions of
Confinement

V. ORIGIN (Place an "X" in One Box Only)

l:>( I Original 0 2 Removed from 0 3 Remanded from 0 4 Reinstated or 0 5 Transferred from 0 6 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation
(.1pec!/Y)
Cite the U.S. <;;ivil Statute under which you arc filing (Do not citejurisdictimwl statutes unless divers ity):
35 U.S.C.
VI . CAUSE OF ACTION 1-B-r-ie-f-de-s-cr-i[l_t.::.
io_n_o_f-ca-u-
s 271
se-:- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Patent intringement
VII . REQUESTED IN 0 CHECK IF THIS IS A CLASS ACTION DEMAND$ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: M Yes 0 No
VIII . RELATED CASE(S)
(.\'ee instructions):
IF ANY JUDGE DOCKET NUMBER
DATE
05/03/2018 __p
"/ ,.,-- ~·--Y-
. .•/ /
FOR OFFICE USE ONLY
'
RECEIPT # AMOUNT APPL YING IFP JUDGE ".........___ _.. / r/ MAG . JUDGE