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IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

TRINITY INDUSTRIES, INC., and )

)THE TEXAS A&M UNIVERSITY SYSTEM, )

)Plaintiffs, )

) Civil Action No. 2:12-cv-0046vs. )

) JURY TRIAL DEMANDEDJOSHUA HARMAN, )

)Defendant. )

COMPLAINT

Plaintiffs Trinity Industries, Inc. ("Trinity") and The Texas A&M University

System ("Texas A&M") for their Complaint against Defendant Joshua Harman

("Harman"), state as follows:

NATURE OF THE CASE

1. This is an action arising under the trademark laws of the United States, as

well as the laws of Texas governing defamation and business disparagement. Defendant

Harman has published false and malicious statements about highway safety products

designed and tested by Texas A&M and manufactured by Trinity with the intent to

defame and disparage Plaintiffs' products and business reputations. Moreover, Harman

has made unauthorized use of Trinity's registered ET-Plus trademark in furtherance of his

activities that defame and injure Plaintiffs' commercial interests.

Case 2:12-cv-00046-JRG Document 1 Filed 01/30/12 of 16 PageID #: 1

JURISDICTION

2. This Court has jurisdiction over the subject matter of this action pursuant

to 28 U.S.C. §§ 1331 and 1338(a) and 15 U.S.C. § 1221. This Court, alternatively, has

jurisdiction over this action pursuant to 28 U.S.C. § 1332 because the amount in

controversy exceeds $75,000 and each Plaintiff is a resident of Texas or Delaware and the

named Defendant is a resident of Virginia for diversity jurisdiction purposes.

PARTIES AND RELEVANT ENTITIES

3. Plaintiff Trinity is a corporation organized and existing under the laws of

the State of Delaware and conducting business from 2525 Stemmons Freeway, Dallas,

Texas 75207. Trinity's Construction Products Group includes Trinity Highway Products,

LLC, a leading U.S. manufacturer of highway guardrail and end terminals. Trinity

manufactures and sells guardrail systems throughout the Eastern District of Texas as well

as throughout the United States and internationally.

4. Plaintiff Texas A&M is an educational institution organized and existing

under the laws of the State of Texas and conducting business at various branches

throughout the State of Texas, including this division of the Eastern District of Texas.

Texas A&M has licensed certain patents that it holds to Trinity, which licenses Trinity

has used to manufacture its guardrail systems at issue in this matter.

5. Defendant Harman is a citizen of and resides in the Commonwealth of

Virginia. As detailed below, Harman operates and maintains an Internet website to

defame, incite litigation against and to otherwise injure the reputations and business

interests of both Trinity and Texas A&M.


6. Harman is an officer or owner of various Virginia companies engaged in

road contracting and highway safety product manufacturing.

7. Harman's companies include SPIG Industry, Inc. and SPIG Industry, LLC

(collectively, "SPIG") and Selco Industry ("Selco"). SPIG manufactures and Selco

installs highway guardrail systems.

8. Harman collaborated and/or conspired with certain unknown person(s) or

entities that have agreed, coordinated and worked with Harman to construct and publish a

website at the internet address "www.failingheads.com" ("the Website") for purposes

more fully explained below. On information and belief, Harman recruited or is actively

soliciting attorneys for the purpose of litigating a "class action" against Plaintiffs.

Plaintiffs' investigation is ongoing, and shall continue expeditiously using the tools of

discovery available through this Court.

9. Enom, Incorporated ("Enom") is a Nevada corporation with its principal

place of business in Washington State. At all relevant times, Enom has represented itself

to the public as "the world's largest domain name and online services wholesaler." Enom

provides services for consumers in Texas and all over the world through the World Wide

Web, and is registered to do business in Texas.

10. On information and belief, Harman registered and currently maintains the

domain name for the Website under contract with Enom. Harman admitted to

undersigned counsel that he operates and maintains the Website.


JURISDICTION AND VENUE

11. This Court has original jurisdiction over Plaintiffs' trademark claims under

28 U.S.C. § 1331, in that it arises under the Constitution, laws, or treaties of the United

States as hereafter more fully appears.

12. This Court has jurisdiction over Plaintiffs' other claims pursuant to 28

U.S.C. § 1367 in that they form part of the same case or controversy under Article III of

the United States Constitution.

13. This Court also has jurisdiction over Plaintiffs' other claims pursuant to 28

U.S.C. § 1332. Upon information and belief, the parties are diverse and the amount in

controversy, exclusive of interest and costs, exceeds $75,000.

14. Venue is proper pursuant to 28 U.S.C. § 1391(a) and (b).

FACTUAL BACKGROUND

15. Trinity manufactures guardrail systems installed by the appropriate

highway authority throughout the United States using patented products designed to

enhance the safety of the motorized traveling public who errantly depart from the national

highway system. Trinity enjoys an international reputation for excellence in the roadside

safety equipment industry. Trinity derives a substantial portion of its revenues through

the sale of its guardrail products. Among Trinity's guardrail products is the ET-Plus

guardrail end terminal ("ET-Plus"). Texas A&M has granted Trinity the exclusive

license and has assigned certain patents to Trinity relating to the ET-Plus. A guardrail

end terminal is commonly referred to as a "head." Some of these heads, in conjunction

with the rest of the guardrail system, are designed to dissipate the energy of an errant

vehicle that impacts the head.


16. Trinity has earned and maintained goodwill and a positive reputation in

the community of roadside highway hardware purchasers, suppliers and manufacturers.

This community includes federal and state highway authorities, as well as commercial

customers and road contractors. Trinity's good will and reputation are based almost

entirely upon the proven and federally accepted crashworthiness of its products, including

the ET-Plus.

17. Texas A&M, the designer and developer of the ET-Plus, has assigned and

granted exclusive licenses to several of its patents to Trinity, which patented technology

is used in the manufacturing of the guardrail systems. Texas A&M has earned and

maintained goodwill in the higher education community and has a national reputation for

integrity and academic excellence. Texas A&M receives substantial revenue from its

patent licensing agreements with Trinity or highway products that it has designed,

developed, crash-tested and had accepted by the Federal Highway Safety Administration.

18. During February 2011, Trinity learned that SPIG was manufacturing

guardrail terminal systems that substantially infringed upon the Plaintiffs' patented ET-

Plus system. Trinity also learned that Selco was representing to the Virginia Department

of Transportation that it was installing Trinity's ET-Plus product on state highways, when

in fact Selco was installing the infringing guardrail end terminal devices produced by

SPIG. SPIG's end terminals are not authorized or licensed by Plaintiffs. SPIG's end

terminals are not tested or federally approved as a product which may be installed on the

National Highway System by the FHWA. Plaintiffs were (and are) concerned that SPIG's

end terminal devices, as installed by Selco, place the general public at risk of personal


injuries in the event of a motor vehicle accident with an untested and unaccepted highway

product.

19. On September 2, 2011, Trinity filed a Complaint in the Eastern District of

Virginia against SPIG and Selco seeking injunctive and monetary relief stemming from,

inter alia, these patent and trademark infringements ("the EDVA Action"). The EDVA

Action is Civil Action No. 1:1 l-cv-937.

20. Joshua Harman, the named Defendant in the instant Complaint, is not a

party to the EDVA Action, however.

21. On January 24, 2012, certain executives and legal counsel of Trinity met

with legal counsel for SPIG and Selco. Harman attended the meeting, as well. At what

became the conclusion of this meeting, Harman made verbal threats against the Plaintiffs'

business.

22. Specifically, Harman asserted that Trinity is "killing people" and that his

claims are "supported by math." See Affidavit of Gregory Mitchell f 26, a copy of which

is attached as Exhibit A.

23. Harman also threatened to contact the Federal Highway Safety

Administration ("FHWA") with these same baseless allegations against Plaintiffs. On

information and belief, Harman did contact at least one employee at the FHWA and

alleged that Trinity is incorrectly fabricating its ET-Plus head, and even provided a

photograph to the FHWA purporting to support his false and defamatory allegations.

24. Harman further threatened to post these, and other untrue and defamatory

assertions against Plaintiffs, on an Internet website he intended to create located at

"www.failingheads.com." See Ex. A, Mitchell Aff. \ 17. Harman attempted to justify his


threatened irrational behavior as retribution for Trinity purportedly "ruining" his

businesses, SPIG and Selco.

25. The Website address was registered on January 16, 2012.

26. On information and belief, Harman registered the Website by opening a

web hosting account with Enon, Inc. Harman created and maintains the Website to carry

out his threats against Plaintiffs.

27. Plaintiffs checked the Website on January 24, 2012 and each day

thereafter. Initially, the Website was password protected. In other words, the Website

content could not be viewed by the general public without obtaining a user name and

password from the person responsible for maintaining the Website - Harman.

28. On January 26, 2012, local counsel for Trinity and Texas A&M in the

EDVA Action (Eckert Seamans Cherin & Mellott, LLC) sent a cease and desist letter to

counsel for SPIG and Selco (Roetzel & Andress), advising these attorneys that any action

by Harman to publish the defamatory remarks described in the January 24, 2012 meeting

would be met with swift court action. A copy of the January 24, 2012 letter is attached

hereto as Exhibit B.

29. On January 27, 2012, attorneys at Roetzel & Andress confirmed that they

received the cease and desist letter (Ex. B) and conveyed it to Harman. However, Roetzel

& Andress stated that the law firm does not represent Harman, individually.

30. At some time prior to 1:00 p.m. on January 27, 2012, the Website's

content became publically available. The Website contains numerous defamatory, false


and misleading statements1 specifically intended to interfere with Plaintiffs' business and

to invite a "class action" lawsuit against them. See Ex. A, Mitchell Aff. f̂ 22(a) - (j). For

example, the Website repeatedly asserts that the Plaintiffs' ET-Plus products are deadly,

that the ET-Plus has been conclusively proven to be dangerous and further insinuates that

the purported dangers of these products are a result of Plaintiffs' cost cutting measures.

See id.; see also Website "News" page and "History" page (color copies available for in

camera inspection).

31. By way of further example, under the Website's "History" page, it states

that:

The current (fourth) and most common generation EndTerminal frequently fails and becomes a serious safetyhazard rather than a safety device. THIS IS THE FATALHEAD!!!!!

Such statements are untrue, unsubstantiated, malicious and published with intent to

damage the Plaintiffs' reputation and business. Further, they are completely contrary to

the products' acceptance by the Federal Highway Safety Administration.

32. Harman is responsible for each and every statement on the Website. He

personally provided its content. Moreover, the Website created by Harman is interactive,

inasmuch as it purports to depict automobile accident sites in various states - including

Texas - and actively solicits residents of these states to engage in commercial activity

with the Defendant via joining a "class action" legal enterprise against Plaintiffs. In other

words, the puipose and intent of the Website is to gather actual or potential customers for

a "class action" based on bodily injury or wrongful death claims, using false and

' Screenshots of the Website will be made available to the Court upon request and at any hearing upon thematters treated in this Complaint. Plaintiffs have not attached the screenshots as exhibits to the Complaint


defamatory statements about Plaintiffs and their product. The Website is accessible to

Texas residents, and invites them to exchange information with the Website operators in

order to join this enterprise, as well as to receive access to restricted content on the

Website. On information and belief, this restricted content contains additional false and

defamatory statements about Plaintiffs and their products.

33. The Website is the fulfillment of Harman's January 24, 2012 threats to

seek retribution for alleged or imagined wrongs perpetuated against Harman's businesses

by Trinity and Texas A&M. Trinity and Texas A&M allegedly "ruined" Harman's

businesses by demanding that he stop infringing on Plaintiffs' patents and trademarks,

and installing untested and unapproved end terminal devices on the Virginia highways.

34. Upon information and belief, Harman is working with an attorney who

hopes to financially benefit from the Website by inviting injured persons to file frivolous

personal injury and product liability lawsuits against the Plaintiffs. On each page of the

Website it states that its purpose is "[t]o connect individuals for a class action lawsuit."

On information and belief, the Website is the result of a coordinated effort by Harman

and unknown individuals to perpetuate and widely disseminate these false allegations

against Plaintiffs for financial gain.

35. Upon information and belief, the disparaging and false publications on the

Website have been, are, and will continue to be viewed by the public. The dissemination

of the information contained on the Website has and will continue to damage the

Plaintiffs' reputation and goodwill with regulators, vendors, business partners and

customers. The Website, per its design and intent, will also cause Plaintiffs to lose

out of concern that doing so would further disseminate and republish the falsities contained therein.


business to competitors. The statements on the Website may also encourage further

financial losses associated with the legal expense of defending unfounded lawsuits

invited by the Website.

36. Trinity holds the U.S. registered trademark for the name ET-Plus. A copy

of U.S. Trademark Registration No. 2553809 is attached hereto as Exhibit C. Since at

least April 2000, Trinity has used continually the ET-Plus trademark in connection with

the marketing and sale of metal highway safety devices comprised of vehicle energy

absorbing systems, named, crash attenuator terminals. The Website uses Trinity's

trademark ET-Plus to identify the impact head portion of the guardrail depicted therein.

See Website "About" page. Harman knowingly and wrongfully used, and continues to

use, Trinity's ET-Plus trademark in an effort to tarnish the trademark and injure the

Plaintiffs. As stated above, Harman hopes to financially benefit from his

misappropriation of Plaintiffs' trademark by using it on the Website to inspire a class

action lawsuit against the Plaintiffs. Harman also intended to harm the reputation of the

ET-Plus trademark and products marketed and sold under the ET-Plus trademark.

37. The damages resulting from Harman's defamatoiy statements and

trademark dilution will be impossible to fully quantify. Plaintiffs have and will suffer

irreparable harm as a result of Harman's publication of the Website. The longer the

Website remains up and operational - whether protected by a user name/password, or

available to be viewed by the general public - the greater the injury the Plaintiffs will

sustain.

10


38. Defendant will continue to improperly defame Plaintiffs' reputations,

disparage and interfere with their businesses and dilute Trinity's trademark unless and

until this Court grants the injunctive relief requested.

COUNT IDefamation

39. Plaintiffs reallege and incorporate by reference herein Paragraphs 1

through 38 above.

40. Harman is responsible for the publication of numerous defamatoiy

statements concerning the Plaintiffs and their products, including but not limited to the

Website contents described above and Harman's communications to the FHWA. Each of

these statements was made with actual malice towards Plaintiffs.

41. As a direct and proximate result of Harman's acts, Plaintiffs have

sustained injury to their reputations in their respective industries and loss of their

accumulated goodwill in their communities. Plaintiffs will continue to sustain damages

in the future. The full extent of Plaintiffs' injury caused by Harman's defamatory

statements is incapable of exact proof at this time, but exceeds $75,000, exclusive of

interest, attorneys' fees and costs.

42. Plaintiffs are entitled to recover damages from Harman equal to the value

of their lost revenue, market share, business opportunities, goodwill and reputational

prestige resulting from Harman's improper conduct and other such damages as the Court

deems appropriate, including punitive damages and attorneys' fees.

11


COUNT IIBusiness Disparagement


through 42 above.

44. As described more fully above, Defendant Harman published derogatory

and disparaging statements concerning the Plaintiffs, their products and their business

operations. Defendant did so with malice towards the Plaintiffs and without privilege.

45. Defendant's actions have and will result in the Plaintiffs suffering special

damages. Plaintiffs are therefore entitled to recover damages from Harman for the losses

Plaintiffs incur due to the disparagement as well as punitive damages.

COUNT IIITrademark Dilution By Tarnishment

46. Trinity realleges and incorporates by reference herein Paragraphs 1

through 45 above.

47. As a cause of action and grounds for relief, Trinity alleges trademark

dilution by tarnishment of the registered trademark ET-Plus by Harman under § 43 (c) of

the Lanham Act, 15 U.S.C. § 1125. By virtue of its substantial investment of time and

resources in the continued development and promotion in interstate commerce of the ET-

Plus trademark in connection with the sale of the guardrail systems, Trinity's ET-Plus

trademark is highly distinctive and has become universally associated in the public mind

with products of the highest quality and reputation and the ET-Plus trademark is entitled

to protection against dilution and disparagement.

48. Harman has used and is continuing to use the trademark ET-Plus in a

manner that is likely to injure Trinity's business reputation and to dilute and disparage the

12


distinctive quality of the ET-Plus trademark within the meaning of § 43 (c) of the Lanham

Act, 15 U.S.C. § 1125. This conduct is causing immediate and irreparable harm and

damage to Trinity, and will continue to cause same unless and until enjoined.

COUNT IVPreliminary and Permanent Injunetive Relief


through 48 above.

50. For the reasons stated above, Plaintiffs assert a claim for preliminary and

permanent injunetive relief to prevent the ongoing harm to Plaintiffs' business,

reputation, goodwill and to the general public who rely upon guardrail safety devices to

prevent or reduce injuries during motor vehicle accidents. Unless the injunetive relief

requested herein is granted, the Plaintiffs will suffer irreparable harm.

51. As shown from the facts above, unless the Defendant is preliminarily and

permanently restrained from further dissemination of defamatory, false and misleading

materials and information, Plaintiffs will suffer immediate and irreparable injury.

52. Defendant Harman should be subject to a preliminary and permanent

injunction to halt his commission of on-going and future wrongs, prevent further

irreparable harm to Plaintiffs, and promote the interests of justice. The injunetive relief

sought from Defendant Harman is described below.

PRAYER FOR RELIEF

Plaintiffs therefore request the Court to enter judgment in their favor and grant the

following relief:

1. Judgment in Plaintiffs' favor on all counts of the Complaint;

13


2. An award of compensatory and punitive damages, in an amount to be

determined at trial, against Defendant Harman and in favor of the Plaintiffs for the injury

to Plaintiffs' reputations and businesses as a result of the defamatory statements made by

Harman;

3. An accounting to determine damages for all forms of dilution of the ET-

Plus trademark and that Plaintiffs be awarded such damages from Harman determined to

have been inflicted by same;

4. A trebling of damages for bad faith trademark dilution;

5. An award of Plaintiffs' costs and attorneys' fees, pursuant to 15 U.S.C. §

1117 and/or any other applicable statute or common law principle;

6. An assessment of pre-judgment and post-judgment interest on the damages

determined;

7. That Harman, his agents, attorneys, servants, employees, and other persons

in active concert or participation with him, be preliminarily and permanently enjoined,

and Ordered to:

A) Cease directly or indirectly publishing the statements contained on

the Website and/or inviting or inciting others to republish the defamatory

statements;

(B) Halt any and all, direct or indirect dilution or violation of

Plaintiffs' rights in and to their trademark of ET-Plus; and from

contributing to, aiding, or inducing similar violations by others;

(C) Remove all content from the Website and cease publishing same,

while strictly preserving such electronic evidence for consideration and

14


use in further Court proceedings;

(D) Provide immediately to the Plaintiffs a copy of "the Presentation"

referenced on the Website (but currently restricted by user name and

password access), any information obtained as a result of the "class

action" solicitation on the Website, and the internet protocol ("IP")

addresses of any visitors accessing the Website content during its

existence, or since January 16, 2012, whichever is earlier;

(E) Produce and provide to the Plaintiffs the name, address, telephone

number, IP address and any other identifying information from the

registration records maintained by Enom, Inc., of any person or entity

involved in the registration, creating, updating or maintenance of the

Website; and

(F) Produce and provide to the Plaintiffs the name, address, telephone

number, IP address and any other identifying information from the

payment transactions or records (with the exception of credit card

numbers) regarding the registration or maintenance of the Website.

8. Along with such other relief as this Court deems necessary and proper.

15


Dated: January 30, 2012

TRINITY INDUSTRIES, INC. andTHE TEXAS A&M UNIVERSITY SYSTEM

By: //rob//Russell C. Brown, Esq.(Texas Bar No. 03167510)THE LAW OFFICES OFRUSSELL C. BROWN, P.C.P.O. Box 1780Henderson, Texas 75653-1780Telephone: 903.657.8553Fax: [email protected]

J. Mark Mann, Esq.(Texas Bar No. 12926150)The Mann Firm300 West Main StreetHenderson, Texas 75652Telephone: 903.657.8540Fax: 903.657.6003mark@themannfirm .com

Counsel for Plaintiffs Trinity Industries, Inc.and The Texas A&M University System

16


EXHIBIT A

Case 2:12-cv-00046-JRG Document 1-1 Filed 01/30/12 Page 1 of 7 PageID #: 17

IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

TRINITY INDUSTRIES, INC., and )

)THE TEXAS A&M UNIVERSITY SYSTEM, )

)Plaintiffs, )

) Civil Action No.VS. )

) JURY TRIAL DEMANDEDJOSHUA HARMAN, )

)Defendant. )

AFFIDAVIT OF GREGORY MITCHELL

This day, personally appeared before me, Gregory Mitchell, who averred under oath the

following:

1. My name is Gregory Mitchell and I am the President of Trinity Highway Products,

LLC, a subsidiary of Trinity Industries, Inc., the Plaintiff in this matter. My business address is

2525 Stemmons Freeway, Dallas, Texas 75207. I have personal knowledge of the matters set

forth in this Affidavit.

2. My job duties include the leadership and management of Trinity Highway

Products, LLC.

3. Trinity uses the trademarked name "ET-Plus" to describe its unique and patented

highway guardrail end terminals. Trinity's ET-Plus is widely recognized by customers who

purchase them as one of the highest quality guardrail terminals available. Trinity licenses the

patented ET-Plus from The Texas A&M University System. Pursuant to these license


4. The ET-Plus is a federally approved and energy-absorbing end terminal. It can be

used at the termination of flexible barriers on the shoulder of a roadway or in the median.

5. Below is a picture of an ET-Plus manufactured by Trinity:

-*TJS*3W

6. The ET-Plus is approved for installation on highways throughout the United

States, including the District of this Court.

7. The ET-Plus is tested and accepted by the Federal Highway Safety

Administration ("FHWA") under the provisions of National Cooperative Highway Research

Program ("NCHRP") Report 350, "Recommended Procedures for the Safety Performance

Evaluation of Highway Features."

8. The ET-Plus is accepted for use and installation on the Federal and state

highways.

9. Trinity sells the ET-Plus to road contractors to install and maintain on the Federal

and state highways.

10. Trinity sold the ET-Plus to entities owned or controlled by Mr. Joshua Harman of

Bristol, Virginia, or the surrounding area.

11. As of December 2011, the Virginia Department of Transportation ("VDOT")

removed Selco from the list of prequalified bidders, hi particular, I understand that Selco will

not be allowed to bid, nor take on any work as a subcontractor on VDOT road projects. On

information and belief, Selco was removed from the VDOT prequalification list because it


11. As of December 2011, the Virginia Department of Transportation ("VDOT")

removed Selco from the list of prequalified bidders. In particular, I understand that Selco will

not be allowed to bid, nor take on any work as a subcontractor on VDOT road projects. On

information and belief, Selco was removed from the VDOT prequalification list because it

installed unapproved "GR9" units on Virginia highways, and Selco did not timely provide VDOT

with a schedule for replacing these units in response to a demand from VDOT,

12. Earlier in 2011, VDOT ordered Selco to remove and replace certain "GR9" end

terminal devices from Virginia highways. These GR9 devices were manufactured by another

company owned or operated by Mr. Harrnan called SPIG Industries,

13. Trinity has asserted in Court filings that these GR9 devices - as manufactured by

Mr. Harman's SPIG entity and installed by his Selco affiliate - are an unauthorized, untested and

uncertified copy of Trinity's patented and proprietary ET-Plus product.

14. In particular, Trinity and the inventors at The Texas A&M University System

have asserted claims against Mr. Harman's companies in the U.S. District Court for the Eastern

District of Virginia for patent and trademark infringement, and unfair competition. The case is

styled Trinity Industries, Inc., etal. v. SPIG Industry, LLC, etal, Civil Action No. I:llcv937,

with Judge Claude M. Hilton presiding.

15. On July 24, 2012,1 attended a face-to-face meeting with Mr. Harman in

Washington, D.C. to discuss Trinity's claims, and Mr. Harman's proposal for resolving these

claims.

16. During this meeting, Mr. Harman stated that he (individually) had created, or

contributed to, an Internet Website located at www.failingheads.com ("the Website") that would


show Trinity is "killing people" and that his claims are "supported by math." He also claimed to

have evidence and photographs from across the U.S. to support these wild claims.

17, Mr. Harman stated that he intended to activate the Website.

18, Subsequent to the meeting, Trinity's legal counsel determined that the domain

name for the Website was, in fact, registered on January 16, 2012.

19. Between January 24 through 26, 2012, the Website was protected by a user name

and password, and the contents could not be viewed by the public without this information.

20. On January 27, 2012, Trinity discovered that the Website is active and populated

with information, photographs and specific references to both the ET-Plus product and Texas

A&M University System.

21, Trinity did not authorize or consent to the use of the ET-Plus name, or the images

purporting to show the ET-Plus, on the Website,

22. The Website makes the following false or misleading allegations regarding the

ET-Plus product, and specifically posts photographs labeled as the ET-Plus:

(a) falsely claiming that ET-Plus heads are killing people

(b) falsely claiming that ET-Plus heads are failing "completely"

(c) falsely claiming that "people are perishing because o f the ET-Plus

(d) falsely suggesting that unauthorized design or manufacturing changes were

made to the ET-Plus

(e) falsely suggesting that design changes were made to save money at the

expense of public safety

(f) falsely claiming that the ET-Plus "chokes" and "fails"


(g) falsely claiming to have measured and documented ET-Plus failures in

numerous states, without any elaboration

(h) falsely claiming that the ET-Plus frequently fails and becomes a serious

safety hazard rather than a safety device, e.g., "THIS IS THE FATAL HEAD MM!"

(i) falsely claiming that the ET-Plus killed a "mother of a 12 yr old son"

because the guardrail impact head fail completely

(j) purporting to show that the ET-Plus will fail on impact "based upon

physical measurements of the actual terminal."

23. The ET-Plus has been tested, certified and authorized for use on U.S. highways.

To my knowledge, Trinity has never been found liable for making a defective ET-Plus product.

24. The Website should be blocked and these false and defamatory statements

regarding Trinity and the ET-Plus should be removed from public view and further

dissemination. Mr. Harman, and those acting with him, should be ordered by this Court to cease

and desist such further damaging conduct.

25. The ET-Plus product and its commercial reputation will be irreparably harmed by

the continued existence of this Website and its false contents.

26. I understand that attorneys representing Trinity will be filing this Affidavit with

this Court asking for an Order to block the Website, and whatever further relief may be available

to remedy the damage to Trinity and its reputation.

And further this affiant said not.

Date: I 130 11 3 6 A T)A f j HPGREGGR^MiTCHELL


STATE OF TEXAS

COUNTY OF DALLAS

)) TO WIT:)

Subscribed and sworn to before me this ^0-/^ day of J f ld t /^ _,2012.¥•

Notary Public </ /

My Commission Expires: Pc-type r &• v Ho If

Notary Registration Number: j'XL 30339-A

j0JH%h k THOMAS GREGORY LITTLEI i V b ! * I Notary Public, State of Texas4 O . ' # M y Comniission Expires*%,!&!$* October 26, 2015


EXHIBIT B


Eckert Seamans Cherin & Mellott, LLC TEL 804 788 7740Eighth and Main Building, Suite 1450 FAX 804 698 2950707 East Main Street www.eckertseamans.comRichmond, Virginia 23219

Matthew B. Kirsner, Esq.(804)788-7744(804) 698-2950 (Fax)[email protected]

January 27, 2012

VIA EMAIL TO [email protected]

Re: www.failingheads.com

Dear Sir:

On behalf of Trinity Industries, Inc. ("Trinity") and The Texas A&M University System("TAMUS"), I am writing to demand that you immediately take down the Internet websitelocated at www.failingheads.com ("the Website"). The Website exists for the purpose ofdefaming and injuring Trinity and TAMUS in their business reputations, and disparaging theirproprietary ET Plus products. The Website contains false allegations and inferences about theET Plus product and my clients.

By this letter, Trinity and TAMUS demand that you, and any person or entity acting inconcert with you, cease and desist from any activities intended to, or having the effect of,defaming and injuring my clients in their business reputations. If you do not immediately takedown the Website, or otherwise cease the publication of false statements regarding my clients,Trinity and TAMUS will seek full redress available under the law, including a TemporaryRestraining Order, Preliminary Injunction and suit for money damages against you and thoseacting in concert with you,

Please reply to confirm that the Website has been deactivated and removed permanently.Thank you.

Sincerely,

Matthew B. Kirsner

cc: Heather Perttula Randall, Esq. (via email)Russell C. Brown, Esq. (via email)Benjamin E. Maskell, Esq. (via email)

R I C H M O N D , V A B O S T O N , M A C H A R L E S T O N , W V H A R R I S B U R G , P A P H I L A D E L P H I A , P A

P I T T S B U R G H , P A S O U T H P O I N T E , P A W A S H I N G T O N , D C W H I T E P L A I N S , N Y W I L M I N G T O N , D E


EXHIBIT C


Int Q.: 6

Prior U.S. Os.: 2,12,13,14, 23, 25, and 50Reg. No. 2,553,809

United States Patent and Trademark Office Registered Mar, 26,2002

TRADEMARKPRINCIPAL REGISTER

ET PLUS

MANAGING TRUSTEES OF TRN BUSINESS SYSTEMS, NAMELY, CRASH ATTENUATORTRUST, A DELAWARE BUSINESS TRUST, TERMINALS, IN CLASS 6 (U.S. CLS. 2, 12,13,14,23,THE TRUSTEES COMPRISING OF TIMOTHY 2S AND vt\25 AND 50).

FIRST USE 4-0-2000; IN COMMERCE 4-0-2000.

SN 76-014,984, FILED 3-31-2000.

R. WALLACE, JIM S. IVY AND MICHAEL GFORTADO, ALL U.S. CITIZENS, THE (DELA-

•WARE BUSINESS TRUST)2525 STBMMONS FREEWAYDALLAS, TX 75207

FOR: METAL HIGHWAY SAFETY DEVICESCOMPRISED OF VEHICLE ENERGY ABSORBING BRADLEY BAYAT, EXAMINING ATTORNEY


JS 44 (Rev. 09/11) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as providedby local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiatingthe civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff)(For Diversity Cases Only) and One Box for Defendant)

’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEFPlaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4

of Business In This State

’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6 Foreign Country

IV. NATURE OF SUIT (Place an “X” in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

’ 110 Insurance PERSONAL INJURY PERSONAL INJURY ’ 625 Drug Related Seizure ’ 422 Appeal 28 USC 158 ’ 375 False Claims Act’ 120 Marine ’ 310 Airplane ’ 365 Personal Injury - of Property 21 USC 881 ’ 423 Withdrawal ’ 400 State Reapportionment’ 130 Miller Act ’ 315 Airplane Product Product Liability ’ 690 Other 28 USC 157 ’ 410 Antitrust’ 140 Negotiable Instrument Liability ’ 367 Health Care/ ’ 430 Banks and Banking’ 150 Recovery of Overpayment ’ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS ’ 450 Commerce

& Enforcement of Judgment Slander Personal Injury ’ 820 Copyrights ’ 460 Deportation’ 151 Medicare Act ’ 330 Federal Employers’ Product Liability ’ 830 Patent ’ 470 Racketeer Influenced and’ 152 Recovery of Defaulted Liability ’ 368 Asbestos Personal ’ 840 Trademark Corrupt Organizations

Student Loans ’ 340 Marine Injury Product ’ 480 Consumer Credit (Excl. Veterans) ’ 345 Marine Product Liability LABOR SOCIAL SECURITY ’ 490 Cable/Sat TV

’ 153 Recovery of Overpayment Liability PERSONAL PROPERTY ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) ’ 850 Securities/Commodities/ of Veteran’s Benefits ’ 350 Motor Vehicle ’ 370 Other Fraud Act ’ 862 Black Lung (923) Exchange

’ 160 Stockholders’ Suits ’ 355 Motor Vehicle ’ 371 Truth in Lending ’ 720 Labor/Mgmt. Relations ’ 863 DIWC/DIWW (405(g)) ’ 890 Other Statutory Actions’ 190 Other Contract Product Liability ’ 380 Other Personal ’ 740 Railway Labor Act ’ 864 SSID Title XVI ’ 891 Agricultural Acts’ 195 Contract Product Liability ’ 360 Other Personal Property Damage ’ 751 Family and Medical ’ 865 RSI (405(g)) ’ 893 Environmental Matters’ 196 Franchise Injury ’ 385 Property Damage Leave Act ’ 895 Freedom of Information

’ 362 Personal Injury - Product Liability ’ 790 Other Labor Litigation Act Med. Malpractice ’ 791 Empl. Ret. Inc. ’ 896 Arbitration

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS Security Act FEDERAL TAX SUITS ’ 899 Administrative Procedure’ 210 Land Condemnation ’ 440 Other Civil Rights ’ 510 Motions to Vacate ’ 870 Taxes (U.S. Plaintiff Act/Review or Appeal of ’ 220 Foreclosure ’ 441 Voting Sentence or Defendant) Agency Decision’ 230 Rent Lease & Ejectment ’ 442 Employment Habeas Corpus: ’ 871 IRS—Third Party ’ 950 Constitutionality of’ 240 Torts to Land ’ 443 Housing/ ’ 530 General 26 USC 7609 State Statutes’ 245 Tort Product Liability Accommodations ’ 535 Death Penalty IMMIGRATION’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 462 Naturalization Application

Employment ’ 550 Civil Rights ’ 463 Habeas Corpus -’ 446 Amer. w/Disabilities - ’ 555 Prison Condition Alien Detainee

Other ’ 560 Civil Detainee - (Prisoner Petition)’ 448 Education Conditions of ’ 465 Other Immigration

Confinement Actions

V. ORIGINTransferred fromanother district(specify)

(Place an “X” in One Box Only)’ 1 Original

Proceeding’ 2 Removed from

State Court’ 3 Remanded from

Appellate Court’ 4 Reinstated or

Reopened’ 5 ’ 6 Multidistrict

Litigation

VI. CAUSE OF ACTIONCite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): Brief description of cause:

VII. REQUESTED IN COMPLAINT:

’ CHECK IF THIS IS A CLASS ACTIONUNDER F.R.C.P. 23

DEMAND $ CHECK YES only if demanded in complaint:JURY DEMAND: ’ Yes ’ No

VIII. RELATED CASE(S) IF ANY (See instructions): JUDGE DOCKET NUMBER

DATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE


JS 44 Reverse (Rev. 09/11)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as requiredby law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for theuse of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civilcomplaint filed. The attorney filing a case should complete the form as follows:

I. (a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use onlythe full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, givingboth name and title.

(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at thetime of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnationcases, the county of residence of the “defendant” is the location of the tract of land involved.)

(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, notingin this section “(see attachment)”.

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an “X” in oneof the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.

United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.

United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an “X” in this box.

Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to theConstitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box1 or 2 should be marked.

Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship ofthe different parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this sectionfor each principal party.

IV. Nature of Suit. Place an “X” in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, issufficient to enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature ofsuit, select the most definitive.

V. Origin. Place an “X” in one of the seven boxes.Original Proceedings. (1) Cases which originate in the United States district courts.

Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petitionfor removal is granted, check this box.

Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.

Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.

Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrictlitigation transfers.

Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When thisbox is checked, do not check (5) above.

Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judge’s decision.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutesunless diversity. Example: U.S. Civil Statute: 47 USC 553

Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an “X” in this box if you are filing a class action under Rule 23, F.R.Cv.P.Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction.

Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket numbersand the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.


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