Articles Posted in Counterfeit

Washington, D.C. – The U.S. Marshals are currently auctioning approximately 4,711 bottles of wine, deemed authentic, that belonged to Rudy Kurniawan, the man convicted of fraud in federal court in 2013 for producing and selling millions of dollars of counterfeit wine.

The wine is being sold in two online auctions, one that started November 24 and one that started December 1 at www.txauction.com. The auctions close on December 8 and December 15, respectively.

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“It may sound ironic that we are selling wine that belonged to a convicted wine counterfeiter,” said Assistant Program Manager Jason Martinez of the U.S. Marshals Service Asset Forfeiture Division, “but we are duty-bound to recoup as much value from the sale of these authentic wines as possible to compensate those who were victims of his fraud.”

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Shipshewana, Indiana – Indiana trademark lawyers for Plaintiff Kevin Horn, sole proprietor of Shipshewana Spice Company of Warsaw, Indiana, filed an intellectual property lawsuit in the Northern District of Indiana alleging that Bob Wilson d/b/a Amish Farms and Shipshewana’s Best Spice Co. of Millersburg, Indiana infringed the trademark “HAPPY SALT,” Trademark Registration No. 4,241,663, which was granted by the United States Patent and Trademark Office. Horn also alleges trademark counterfeiting, false description, trademark dilution and unfair competition.

Plaintiff Horn of Shipshewana Spice states in his intellectual property complaint that his company has been selling spices and other seasonings since 1994 both locally in north-central Indiana and online at www.shipshewanaspicecompany.com. Plaintiff further claims that the trade name “HAPPY SALT” has been associated with his spices since 1994. A trademark registration for this mark in International Class 30 for “Seasonings, namely, Seasonings in salt” was granted by the USPTO on November 13, 2012.

Defendant Wilson, alleged to be the operator of the website www.amishfarms.com, is accused of offering counterfeit goods offered as “HAPPY SALT SEASONING,” “HAPPY HEARTS SALT FREE SEASONING” and “HAPPY SEA SALT SEASONING.” Plaintiff also protests the use by Defendant of the business name “Shipshewana’s Best Spice Company,” which it contends is nearly identical to Plaintiff’s business name, “Shipshewana Spice Company”.

The complaint, filed by Indiana trademark attorneys for Plaintiff, includes the following counts:

• First Claim: Trademark Infringement Under Lanham Act §32; 15 U.S.C. §1114
• Second Claim: Trademark Counterfeiting Under Lanham Act §32; 15 U.S.C. §1114
• Third Claim: False Description Under Lanham Act §43; 15 U.S.C. §1125
• Fourth Claim: Trademark Dilution Under Lanham Act §43; 15 U.S.C. §1125

• Fifth Claim: Unfair Competition Under Lanham Act §43; 15 U.S.C. §1125

Horn seeks equitable relief along with damages, costs and attorneys’ fees.

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Washington, D.C. – The Justice Department has announced a new approach to combat intellectual property crimes. Grants to state and local law enforcement agencies totaling more than $3.2 million were also announced.

Attorney General Loretta E. Lynch stated recently that the Justice Department will launch a new collaborative strategy to partner more closely with businesses in intellectual property enforcement efforts. Additionally, over $3.2 million will be awarded to ten jurisdictions to support state and local task forces in the training, prevention, enforcement and prosecution of intellectual property theft and infringement crimes.

“The digital age has revolutionized how we share information, store data, make purchases and develop products, requiring law enforcement to strengthen our defenses against cybercrime – one of my top priorities as Attorney General,” said Attorney General Lynch. “High-profile instances of hacking – even against large companies like Sony and Target – have demonstrated the seriousness of the threat all businesses face and have underscored the potential for sophisticated adversaries to inflict real and lasting harm.”

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Hammond, Indiana – Trademark and patent attorneys for Simpson Performance Products, Inc. of Mooresville, North Carolina (“Simpson”) and SFI Foundation, Inc. of Poway, California (“SFI”) commenced trademark litigation in the Western District of North Carolina alleging that Robert Wagoner of North Judson, Indiana and Derek Randall Cathcart of Valparaiso, Indiana infringed the SIMPSON® family of trademarks, some of which have been registered by the U.S. Trademark Office. The case was transferred to the Northern District of Indiana. Among the trademarks at issue are U.S. Trademark Registration Nos. 4,117,821; 1,243,427; 3,026,333; 3,026,334; and 3,050,920. Also at issue are U.S. Patent Nos. 6,931,669 and 8,272,074.

Plaintiff Simpson is a manufacturer of automotive and motorsports specialty/performance products, including head and neck restraints for competitive racing. The Simpson brand of automotive and motorsports products has existed 1959. Plaintiff SFI was established to develop and administer minimum performance standards for the automotive aftermarket and motorsports industries, including standards for specialty/performance racing equipment.

Simpson offers for sale the SIMPSON® Hybrid PRO Rage™ head and neck restraint. Simpson indicates that this product is one of the few such devices to be certified under a special classification, SFI SPEC 38.1, for use in NASCAR competitions.

Defendants Wagoner and Carthcart have been accused of engaging in the business of providing specialty/performance racing equipment, including head and neck restraints that are counterfeit versions of Simpson products. Plaintiffs contend that Wagoner is offering counterfeit head and neck restraints through ebay.com. Plaintiffs allege that Cathcart offers counterfeit head and neck restraints via the website racingjunk.com.

These restraints, Plaintiffs contend, bear trademarks owned by Simpson, including the SIMPSON® federally registered trademark as well as the HUTCHENS Hybrid PRO™ and Hybrid PRO™ common law trademarks.

The accused products also allegedly bear a label that falsely states, “This product designed & manufactured by Safety Solutions, Inc. PATENT NO.: 6931669; other patents pending.” According to Plaintiffs, the alleged counterfeiting activities of Defendants also constitute patent infringement.

In this lawsuit, filed by patent and trademark lawyers for Plaintiffs, the following causes of action are listed:

• Trademark Infringement
• Unfair Competition under 15 U.S.C. § 1125(a); False Designation of Origin; False or Misleading Advertising
• Unfair and Deceptive Trade Practices under N.C. [North Carolina] Gen. Stat. § 75-1.1
• Patent Infringment [sic]

• Common Law Fraud

Plaintiffs ask for a finding in their favor on each of the counts alleged, including a finding that the conduct was knowing and willful, and entry against each Defendant jointly and severally. Plaintiffs seek costs, attorneys’ fees and damages, including enhanced damages, as well as injunctive relief.

This federal trademark complaint was initially filed in the Western District of North Carolina in February 2015. In May 2015, District Judge Richard Voorhees ordered it to be transferred to the Northern District of Indiana, finding that the North Carolina court lacked personal jurisdiction over Defendants.

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Phoenix, Arizona – Federal officials teamed with the National Football League (NFL) Thursday to announce the results of a nationwide law enforcement effort aimed at combatting counterfeit sports merchandise.

Speaking at a NFL news conference, U.S. Immigration and Customs Enforcement (ICE) Director Sarah R. Saldaña, U.S. Customs and Border Protection (CBP) Director of Field Operations William K. Brooks, and NFL Counsel Dolores F. DiBella discussed the results of the initiative, dubbed “Operation Team Player.”

This year’s operation began immediately following the conclusion of Super Bowl XLVIII and targeted international shipments of counterfeit merchandise as it entered the United States. Authorities identified warehouses, stores, flea markets, online vendors and street vendors selling counterfeit game-related sportswear and tickets throughout the country.

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Fort Wayne, Indiana – An Indiana copyright and trademark attorney for Microsoft Corporation (“Microsoft”) of Redmond, Washington sued in the Northern District of Indiana alleging that Ace Recycling, Inc. and Kevin Cawood, both of Fort Wayne, Indiana (collectively, “Defendants”), infringed copyrighted material belonging to Microsoft. Defendants have also been accused of trademark infringement, false designation of origin, false description and representation, counterfeiting and unfair competition. Microsoft seeks damages, an accounting, the imposition of a constructive trust upon Defendants’ illegal profits, and injunctive relief.

Microsoft develops, markets, distributes and licenses computer software. Ace Recycling is engaged in the business of advertising, marketing, installing, offering, and distributing computer hardware and software, including the software at issue, which Microsoft contends is unauthorized.

Microsoft’s software products, which have been registered by the U.S. Copyright Office, include Microsoft Windows XP and Microsoft Vista, both of which are operating systems for desktop and computers.

Also at issue are the following trademarks and service marks belonging to Microsoft:

• “MICROSOFT,” Trademark and Service Mark Registration No. 1,200,236, for computer programs and computer programming services;

• “MICROSOFT,” Trademark Registration No. 1,256,083, for computer hardware and software manuals, newsletters, and computer documentation;

• WINDOWS, Trademark Registration No. 1,872,264 for computer programs and manuals sold as a unit; and

• COLORED FLAG DESIGN, Trademark Registration No. 2,744,843, for computer software.

Microsoft contends that Defendants advertised, marketed, installed, offered and distributed unauthorized copies of Microsoft software, despite Microsoft’s claims that their actions infringed Microsoft’s intellectual property rights. Specifically, Microsoft asserts that, in April 2013, Defendants distributed to an investigator refurbished computer systems with unauthorized copies of Windows XP installed on them. In response, in June 2013, Microsoft asked Defendants to cease and desist from making and distributing infringing copies of Microsoft software. Microsoft alleges that, in May 2014, Defendants again distributed to an investigator a refurbished computer system with an unauthorized copy of a Windows operating system – in that case, Windows Vista – on it.

Microsoft contends that these are not isolated incidents but, instead, indicate Defendants’ pattern of acting in reckless disregard of Microsoft’s registered copyrights, trademarks and service marks.

In this Indiana lawsuit, Microsoft’s copyright and trademark attorney makes the following claims:

• Copyright Infringement – 17 U.S.C. § 501, et seq.

• Trademark Infringement – 15 U.S.C. § 1114

• False Designation Of Origin, False Description And Representation – 15 U.S.C. § 1125 et seq.

• Indiana Common Law Unfair Competition

• For Imposition Of A Constructive Trust Upon Illegal Profits

• Accounting

Microsoft asks for a judgment of copyright infringement; of trademark and service mark infringement; that Defendants have committed and are committing acts of false designation of origin, false or misleading description of fact, and false or misleading representation against Microsoft, in violation of 15 U.S.C. § 1125(a); that Defendants have engaged in unfair competition in violation of Indiana common law; and that Defendants have otherwise injured the business reputation and business of Microsoft.

Microsoft also asks for the impoundment of all counterfeit and infringing copies of purported Microsoft products; the imposition of a constructive trust upon Defendants’ illegal profits; injunctive relief; damages, including enhanced damages; and costs and attorneys’ fees.

The case was assigned to Judge Joseph Van Bokkelen and Magistrate Judge Susan L. Collins in the Northern District of Indiana and assigned Case No. 1:15-cv-00032-JVB-SLC.

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Hammond, Indiana – James Cross acting pro se, and Zip-A-Tee Inc. of Michigan City, Indiana sued in the Northern District of Indiana alleging that Coalition to Advance the Protection of Sports Logos (“CAPS”) of Coeur d’Alene, Idaho wrongfully interfered with Plaintiffs’ use of Plaintiffs’ intellectual property, including both trademark and patent protection. Also named as Defendant is Debevoise & Plimpton LLP of New York City.

Zip-A-Tee owns Trademark Registration No. 4,343,916, which was registered by the U.S. Patent and Trademark Office, and Patent Nos. D580,633 and D581,136, which were also issued by the U.S. Patent and Trademark Office.

In 2012 and 2013, CAPS sent several letters to Zip-A-Tee claiming trademark infringement and counterfeiting by Plaintiffs of various trademarked sports logos. Among CAPS’ assertions was that Cross and/or Zip-A-Tee had offered for sale jerseys bearing “Lakers” and “Bulls” trademarks. CAPS also contacted GoDaddy.com and other website-hosting companies asserting that CAPS’ intellectual property had been infringed. In response, those companies apparently suspended Zip-A-Tee’s websites.

Cross, acting as his own Indiana trademark counsel, has sued Defendants on behalf of himself and the corporation. He makes the following claims for relief:

• Declaratory Relief of Non-Infringement of Trademark

• Preliminary and Permanent Injunction

Plaintiffs ask for a declaratory judgment of non-infringement and injunctive relief. Plaintiffs also ask to be awarded statutory damages of $700 million “for each website removed by CAPS member Infringement request and claims [sic]” as well as $500,000 “per domain name change.” Additionally, Plaintiffs request an award of punitive damages of $5 billion due to the “willfully [sic], wanton, egregiously [sic] and insidious” nature of Defendants’ conduct.

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SolarDockLightPicture.pngFort Wayne, Indiana – A patent and copyright attorney for Lake Lite Inc. of Laotto, Indiana filed a complaint in the Northern District of Indiana asserting, inter alia, that Universal Forest Products, Inc. of Grand Rapids, Michigan (“UFP”); Universal Consumer Products, Inc., also of Grand Rapids, Michigan (“UCP”); and Maine Ornamental, LLC of Greene, Maine infringed “Solar Dock Light” and “Low Profile Solar LED Lamp,” Patent Nos. D697,246 and 8,845,126, which have been issued by the U.S. Patent Office.

Lake Lite is in the business of designing and selling dock lights and other related products and accessories in the boating/dock industry. Its product line includes solar-related dock lights.

In April 2012, Lake Lite first began to offer a “Solar Dot” line of products. Lake Lite indicates that UFP inquired about collaborating with Lake Lite to offer the Solar Dot products to UFP’s customers and that, in November 2012, a mutual non-disclosure agreement was entered so that confidential information regarding Lake Lite’s Solar Dot products could be disclosed and the potential collaboration evaluated. The disclosed information included Lake Lite’s copyright applications to now-copyrighted materials, registered as U.S. Copyright Nos. VAu001118627 and VAu001156962.

Lake Lite asserts that, during these negotiations, it made numerous modifications requested by UFP for which it was not compensated. Lake Lite and UFP failed to reach an agreement about licensing terms and discontinued negotiations. Instead, Lake Lite asserts, UFP has now wrongfully begun offering its own “Solar Deck and Dock Lights.”

In this Indiana copyright and patent litigation, Plaintiff Lake Lite’s specific complaints include that Defendants have been unjustly enriched as a result of their manufacture, importing, marketing and sale of their solar deck and dock light products. Lake Lite contends that Defendants’ acts include infringement of Lake Lite’s copyrights and patents, unauthorized use and misappropriation of Lake Lite’s confidential information and trade secrets and violation of the mutual non-disclosure agreement between Lake Lite and UCP.

The complaint, filed by a copyright and patent lawyer for Lake Lite, alleges the following:

• Count One – Copyright Infringement

• Count Two – Infringement of U.S. Patent No. D697,246

• Count Three – Infringement of U.S. Patent No. 8,845,126

• Count Four – Breach of Contract

• Count Five – Breach of Implied Duty of Good Faith and Fair Dealing

• Count Six – Violation of Indiana Uniform Trade Secret Act

• Count Seven – Unjust Enrichment

Lake Lite asks for a judgment of infringement of its copyrights-in-suit, of infringement of its patents-in-suit, that the non-disclosure agreement was violated by Defendants, that Defendants violated the implied duty of good faith and fair dealing in their dealings with Lake Lite regarding the Solar Dot products, that Defendants have misappropriated Lake Lite’s trade secrets and that Defendants have been unjustly enriched.

Lake Lite seeks injunctive relief; damages, including punitive damages; costs and fees, including attorneys’ fees.

Practice Tip:

Indiana Code Section 24-2-3-2 defines a trade secret as:

information, including a formula, pattern, compilation, program, device, method, technique, or process, that:

1. derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and

2. is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

The four general characteristics of a trade secret are:

1. it is information;

2. that derives independent economic value;

3. that is not generally known, or readily ascertainable by proper means by others who can obtain economic value from its disclosure or use; and

4. that is the subject of efforts, reasonable under the circumstances, to maintain its secrecy.

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Coach-Picture.jpgSouth Bend, IndianaChief Judge Philip P. Simon of the Northern District of Indiana ordered Defendants The Treasure Box, Inc. and Heather Hiatt, both of Elkhart, Indiana to pay statutory damages, attorney’s fees and costs to Coach, Inc. of New York, New York and Coach Services, Inc. of Jacksonville, Florida for trademark infringement and counterfeiting.

By way of summary judgment, the court had earlier determined in this Indiana trademark and counterfeit litigation that Defendants The Treasure Box and Hiatt were liable for the trademark infringement and trademark counterfeiting of Plaintiff Coach’s trademarks. The court’s summary judgment determinations also included a finding that “The Treasure Box and Heather Hiatt acted with knowledge and intent” that was sufficient to support enhanced statutory damages. In this opinion and order, the court fixed the amount due to Coach from Defendants.

Instead of requesting actual damages resulting from Defendants’ trademark infringement and counterfeiting within Indiana, Coach opted for statutory damages under §1117(c). It asked the court for damages of $100,000 for each of the 15 infringing marks, for a total of $1,500,000. The Treasure Box and Hiatt, unrepresented by counsel at the time, filed no response or opposition to Coach’s damages request.

The court first addressed the proper measure of damages. Statutory damages for trademark infringement and trademark counterfeiting under 15 U.S.C. §1114 are limited to:

(1) not less than $1,000 or more than $200,000 per counterfeit mark per type of goods…, as the court considers just; or
(2) if the court finds that the use of the counterfeit mark was willful, not more than $2,000,000 per counterfeit mark per type of good…, as the court considers just.

Because the statute provides little guidance regarding what constitutes a “just” award, the court referred to the relevant factors under the analogous statutory damages provision in the Copyright Act, 17 U.S.C. §504(c). These considerations include: the profits reaped by the infringer; the revenues lost by the plaintiff; the value of the trademarks; whether the infringing conduct was willful; the duration of the infringement; and the potential deterrent effect on the defendant and others.

The court considered each factor in turn. It found that, because The Treasure Box’s operations were both brief and “even trivial” in scale, neither Defendants’ profits nor Coach’s lost revenue supported a large statutory damages award. Instead, the court cited Nimmer on Copyright for the proposition that statutory damages “should be woven out of the same bolt of cloth as actual damages.” “Statutory damages,” said the court, “should represent some approximation of actual damages and are not to represent a windfall to a prevailing plaintiff.”

In contrast, the factors of “value of the trademarks” and “willful conduct” weighed against Defendants. The court acknowledged that the Coach trademarks were valuable and noted that, in determining statutory damages, other courts had valued the trademarks at between $2,000 per mark and $30,000 per mark, for an average of approximately $14,000 per mark. Moreover, it characterized Hiatt’s infringement as having been pursued with “bold willfulness” with regard to her efforts to sell what she knew was knock-off Coach merchandise.

The last two considerations – duration of infringement and potential deterrent effect on Defendant and others – weighed against a large award of damages. The Treasure Box had operated for only three months, closing in late 2011. Such a brief term of infringement, as well as the court’s conclusion that Hiatt and the defunct The Treasure Box were now apparently beyond deterrence, militated in favor of lower damages. Regarding deterrence for others, the court stated, “Mom & Pop operators such as the Hiatts could doubtless be deterred from similar conduct by much less frightful sums than the $1.5 million Coach requests.”

The court concluded that an award of $3,000 per trademark for each of the 15 counterfeited trademarks at issue, for a statutory damages award of $45,000, was appropriate.

The court was also asked to award to Coach attorney’s fees of $14,780 pursuant to §1117(a)(3). This section permits a court “in exceptional cases” to award reasonable attorney’s fees to the prevailing party. The court first noted the ambiguity inherent in the placement of §1117(a)(3) within the statute. Specifically, subsection (a) addresses recovery for actual damages, while subsection (c) allows a plaintiff to opt for statutory damages. Here, Coach chose an award of statutory damages under subsection (c), which raised the question of whether the provision for attorney’s fees under §1117(a)(3) could be applied.

The only Court of Appeals to have addressed the question was the Second Circuit. That court concluded that subsection (c) offers an election as to the basis for damages, but not an election regarding remedies, including attorney’s fees. Thus, it concluded, a court could award attorney’s fees in conjunction with an award for either actual or statutory damages. Chief Judge Simon adopted the Second Circuit’s reasoning. He also determined that the definition of an “exceptional” case – for example, one in which “the losing party was the defendant and had no defense yet persisted in trademark infringement” – was also met, given the willfulness of Defendants’ knowing sale of counterfeit Coach goods and that Defendants had no viable defense.

In addition to the statutory damages award of $45,000, the court awarded attorney’s fees of $14,780 as well as expenses and costs of $1,076.16 to Coach. The judgments were entered against Treasure Box, Inc. and Heather Hiatt jointly and severally.

Practice Tip: Chief Judge Simon noted that Coach had a history of requesting statutory damages that were considerably in excess of what was eventually awarded by the courts in other cases. In Coach, Inc. v. Paula’s Store Sportwear LLC, 2014 WL 347893 (D.N.J. Jan. 31, 2014), Coach requested $800,000 in statutory damages – $100,000 for each of eight counterfeited marks – at a shop from which four counterfeit Coach wallets and two counterfeit Coach handbags had been seized. In that litigation for counterfeiting, the court noted that the retail value of the six counterfeit items was less than $1500 and awarded $5000 for each of the eight marks that had been counterfeited, multiplied by the two types of goods, for a total statutory damages award of $80,000.

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220px-Compound_Bow_full.jpgEvansville, Indiana – Indiana intellectual property attorneys for SOP Services, Inc. of Las Vegas, Nevada and Bear Archery, Inc. of Evansville, Indiana (collectively “Bear Archery”) initiated an infringement lawsuit in the Southern District of Indiana alleging that American Archery, LLC of Suwanee, Georgia infringed “Arrow Rest,” Patent No. RE38,096; “Arrow Rest System and Method,” Patent No. 6,978,775; WHISKER BISCUIT ARROW REST, Trademark Registration No. 2,501,255; and WHISKER BISCUIT, Trademark Registration No. 3,312,392, which have been issued by the U.S. Patent and Trademark Office.

Bear Archery is in the business of researching, developing, designing, manufacturing, and selling archery products. Its business includes traditional archery bows, compound bows, bow sights, arrow rests, arrows and arrow components, archery targets, and various other archery accessories. American Archery is in the business of selling hunting products and accessories, including archery products.

At issue in this Indiana intellectual property dispute are arrow rests for mounting to archery bows. The lawsuit asserts claims of patent infringement, trademark infringement, as well as false and deceptive labeling and unfair competition.

American Archery is accused of selling counterfeit arrow rests, both through its website and through online auction sites. Specifically, Bear Archery asserts that the “ready to shoot” packages offered by American Archery advertise that they include a genuine Bear Archery Whisker Biscuit® arrow rest as part of the preassembled bow. However, Plaintiffs state, the bow that a consumer receives instead includes a pre-installed counterfeit arrow rest.

There are two patents at issue in this litigation: “Arrow Rest,” Patent No. RE38,096 (the “‘096 patent”) and “Arrow Rest System and Method,” Patent No. 6,978,775 (the “‘775 patent”). The ‘096 patent and the ‘775 patent (collectively “the patents-in-suit”) are owned by SOP Services. Bear Archery has been granted an exclusive license to the patents-in-suit. Plaintiffs accuse American Archery of having willfully, intentionally and deliberately infringed the patents-in-suit by offering the allegedly counterfeit items.

In addition to patent infringement assertions, this Indiana litigation also includes allegations of trademark infringement. Bear Archery contends that it owns trademark rights for the Whisker Biscuit mark, indicating that it has used the mark with its arrow rest products since at least 1999. It claims that consumers have come to recognize the mark as identifying Bear Archery’s arrow rest products. It further asserts that it owns a trademark on “Whisker Biscuit Arrow Rest” for archery equipment, namely arrow-rest devices. Bear Archery claims that American Archery’s use of the marks is likely to cause confusion, mistake, or deception as to origin, sponsorship or approval and therefore constitute trademark infringement and counterfeiting in violation of Section 32 and 43(a) of the Lanham Act, 15 U.S.C. § 1114 et seq. and the common law.

Bear Archery includes a final claim of “false and deceptive labeling and unfair competition” under Lanham Act 15 U.S.C. §1125 and the common law.

Bear Archery, via its Indiana intellectual property lawyers, asks the court for the following relief:

A. A judgment of infringement of the ‘096 patent and the ‘775 patent;
B. A judgment that the use of the “WHISKER BISCUIT” mark in Defendant’s commercial advertising and sales in the Unites States creates a likelihood of confusion, mistake, or deception among relevant consumers and therefore infringes Plaintiff’s trademarks;
C. A judgment that Defendant has engaged in counterfeiting with respect to Plaintiffs’ trademarks;
D. An order permanently restraining Defendant or any of its agents from further acts of infringement of the patents-in-suit;
E. An order permanently restraining Defendant or any of its agents from engaging in misleading advertising of products or services bearing or resembling the “WHISKER BISCUIT” mark that have caused actual confusion, mistake or deception of the public;
F. An order that all infringing devices or materials in the possession of, or subject to control by, Defendant or its agents be delivered up and destroyed or altered to eliminate any possibility any further infringement;
G. An award of damages not less than a reasonably royalty, adequate to compensate Plaintiffs for Defendant’s acts of infringement under 35 U.S.C. §284;
H. An award to Plaintiffs of treble Defendant’s profits under 15 U.S.C. § 1117(a) and (b);
I. An award to Plaintiffs of statutory damages for counterfeiting up to $2,000,000, pursuant to 15 U.S.C. § 1117(c);
J. An order declaring that this is an exceptional case pursuant to 35 U.S.C. § 285 and 15 U.S.C. 1117 as a result of Defendant’s knowing and willful infringement of the patents-in-suit and the asserted trademarks, and awarding Plaintiffs their attorneys’ fees;
K. An award of Plaintiffs’ costs, and/or expenses; and
L. Aw award of Defendant’s wrongful profits associated with its infringement of Plaintiffs’ patent and/or trademark rights.

Practice Tip: Bear Archery requested that eBay remove various auctions posted by Bear Archery on the grounds that the items for sale were counterfeit. Bear Archery indicates that eBay removed the auctions and notified American Archery that the auctions had been removed because they had been flagged as offering counterfeit goods. Bear Archery requested this under eBay’s Verified Rights Owner (“VeRO”) Program. The VeRO Program provides a mechanism for an owner of intellectual property to request the removal of eBay auctions that offer items that infringe that owner’s intellectual property rights.

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