jat v. jnc - rule 11 motion

8/12/2019 JAT v. JNC - Rule 11 Motion

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763311.1

1NOTICE OF MOTION AND MOTION UNDER RULE 11 AGAINST PLAINTIFF’S COMPLAINT

James Juo (State Bar No. 193852) [email protected]

FULWIDER PATTON, LLPHoward Hughes Center6060 Center Drive, Tenth FloorLos Angeles, California 90045

Telephone: (310) 824-5555Facsimile: (310) 824-9696

Attorney for Defendants,JNC WHEEL COLLECTION

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

JAT WHEELS, INC.d/b/a STR RACING

Plaintiff,

v.

JNC WHEEL COLLECTION, andDOES 1 through 10,

Defendants.

CASE NO. CV14-04898 JFW (MRWx)

NOTICE OF MOTION AND MOTIONUNDER RULE 11 AGAINSTPLAINTIFF’S COMPLAINT

Date: September 8, 2014Time: 10:00 AMCtrm: 16

Judge John F. Walter

TO THE COURT, PLAINTIFF AND ITS COUNSEL OF RECORD:

PLEASE TAKE NOTICE that on September 8, 2014, at 1:30 P.M., or as

soon thereafter as the matter may be heard in Courtroom 16 of the above Court,

located at 312 North Spring Street, Los Angeles, CA 90012-4701, in the Courtroom

of Judge John F. Walter, Defendant JNC WHEEL COLLECTION (“Defendant” or

“JNC”) will move and hereby does move for sanctions against Plaintiff JAT

WHEELS, INC. d/b/a STR RACING (“Plaintiff” or “STR”) and its counsel Tommy

Wang for violating Federal Rule of Civil Procedure 11.

Case 2:14-cv-04898-JVS-MRW Document 15 Filed 08/06/14 of 2 Page ID #:122

James V. Selna

1:30 P.M.

10C



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763311.1 2NOTICE OF MOTION AND MOTION UNDER RULE 11 AGAINST PLAINTIFF’S COMPLAINT

Pursuant to Rule 11, this Motion is being served upon STR at least 21 days

prior to the filing of the Motion.

This Motion is made following the conference of counsel pursuant to

L.R. 7-3, which took place on July 7, 2013, and on subsequent dates thereafter.

This Motion is based on the instant Notice of Motion and Motion and the

accompanying Memorandum of Points and Authorities, filed concurrently herewith,

as well as the pleadings and records on file in this matter, all matters of which the

Court may take judicial notice, any oral argument presented by counsel, and such

other evidence as may be requested or considered by the Court.

This is a frivolous lawsuit that should never have been brought. STR has

failed to conduct a competent pre-filing analysis before filing suit. The Court

should dismiss STR’s Complaint, and award JNC its attorneys’ fees and expenses

incurred against STR’s frivolous claims.

DATED: July 11, 2014 FULWIDER PATTON, LLP

B : /s/ James JuoJames JuoAttorneys for DefendantJNC WHEEL COLLECTION

Case 2:14-cv-04898-JVS-MRW Document 15 Filed 08/06/14 of 2 Page ID #:123



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Plaintiff,

v.


Defendants.


[PROPOSED] ORDER GRANTINGDEFENDANT’S RULE 11 MOTIONAGAINST PLAINTIFF’SCOMPLAINT

Date: September 8, 2014Time: 10:00 AMCtrm: 16


The motion for sanctions under Federal Rule of Civil Procedure 11 brought

by Defendant JNC Wheel Collection (“JNC”) against Plaintiff JAT Wheels, Inc.

d/b/a STR Racing (“STR”) is granted.

Rule 11 requires a court to determine (1) whether the complaint is legally orfactually baseless from an objective perspective, and (2) if the attorney has

conducted a reasonable and competent inquiry before signing and filing it. Holgate

v. Baldwin, 425 F.3d 671, 676 (9th Cir. 2005). A complaint is “frivolous,” and

sanctions are justified, if it is both baseless and made without a reasonable and

Case 2:14-cv-04898-JVS-MRW Document 15-1 Filed 08/06/14 Page 1 of 3 Page ID #:124

James V. Selna

1:30 P.M.

10C



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competent pre-filing inquiry. Id .; see also View Eng’g, Inc. v. Robotic Vision Sys.,

Inc., 208 F.3d 981, 984 (Fed. Cir. 2000) (applying Ninth Circuit law).

The complaint filed by STR contains false statements and frivolous claims.

For example, STR falsely states that it owns “U.S. Design Patents,” and attempts to

assert patent infringement based on pending patent applications that have not issued.

STR also falsely states that it owns a “registered” trademark, and improperly claims

that it owns the copyrights and ownership rights to certain unidentified photographs.

This case is but one of four patent infringement lawsuits that STR has

recently filed that are based on pending patent applications, instead of a patent

actually issued by the USPTO. STR’s pattern of filing frivolous lawsuits based on

non-existent patent rights is an abuse of the judicial system. See Eon-Net , 653 F.3d

at 1326 (inferring that a patent lawsuit was filed in bad faith and for an improper

purpose because the plaintiff’s case had “indicia of extortion”).

Counsel’s legal experience may be considered in determining whether a pre-

filing inquiry was reasonable or not. Huettig & Schromm, Inc. v. Landscape

Contractors Council of N. Cal., 790 F.2d 1421, 1426 (9th Cir. 1986); see also

Phonometrics Inc. v. Econ. Inns of Am., 349 F.3d 1356, 1366 (Fed. Cir. 2003).

STR’s counsel, Tommy Wang, is a registered patent attorney who claims to have

extensive litigation and patent experience. As such, he should have been aware of

the fundamental flaws and false statements in STR’s Complaint which he signed and

filed with this Court.

STR has failed to show that it had an objectively reasonable basis for its

asserted claims before filing suit, and STR’s Complaint is hereby dismissed.JNC is awarded its attorneys’ fees and costs in connection with this action as

a monetary sanction against both STR and its counsel Tommy Wang jointly to stop

this abuse of the judicial system. See Business Guides, Inc. v. Chiromatic Comm’ns

Enters., Inc., 498 U.S. 533, 111 S. Ct. 922, 933, 112 L. Ed. 2d 1140 (1991); B&H

Med., LLC v. ABP Admin., Inc., 526 F.3d 257, 271 (6th Cir. 2008) (both the client




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and the attorneys “should have been well aware of the many fundamental

weaknesses in its case”); Kendrick v. Zanides, 609 F. Supp. 1162, 1173 (N.D. Cal.

1985) (both the client and the attorney shared responsibility for litigation strategy);

Mercury Air Group, Inc. v. Mansour , 237 F.3d 542, 548 (5th Cir. 2001) (the purpose

of Rule 11 is to deter baseless filings, and “the award of attorney’s fees

approximates optimal deterrence”); Judin v. United States, 110 F.3d 780, 785 (Fed.

Cir. 1997) (suggesting “the amount of the reasonable expenses incurred because of

the filing of the [complaint], including a reasonable attorney’s fee” would be an

appropriate sanction under Rule 11); View Eng’g, 208 F.3d at 988 (affirming

$97,825.48 in attorney’s fees against patentee’s counsel for failing to conduct a

proper pre-filing patent infringement analysis).

Within two weeks, JNC shall submit an accounting of its attorneys’ fees and

costs incurred in connection with this action.

SO ORDERED.

Date: ___________________ _______________________________





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763006.1

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION UNDER RULE 11








Plaintiff,

v.


Defendants.


MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OFDEFENDANT’S MOTION UNDERRULE 11 AGAINST PLAINTIFF’SCOMPLAINT



James V. Selna



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763006.1 i


TABLE OF CONTENTSPage

I.

INTRODUCTION ............................................................................................. 1

II.

STATEMENT OF FACTS ................................................................................ 1

A.

The Parties ............................................................................................... 1

B.

STR’s Complaint Against JNC Alleging Federal TrademarkInfringement, Patent Infringement, And Copyright Infringement .......... 2

1.

STR’s Alleged “U.S. Design Patents” .......................................... 2

2.

STR’s Alleged “Registered” Trademark ...................................... 3

3.

STR’s Alleged “Copyright” .......................................................... 3

C.

STR’s Refusal to Disclose the Pre-Filing Basis For Its Claims ............. 3

III.

DISCUSSION.................................................................................................... 4

A.

Legal Standards Under Rule 11 .............................................................. 4

B.

STR’s Claims For Patent Infringement Are Frivolous BecauseSTR Is Asserting Pending Patent Applications Instead of Patents ......... 5

C.

STR’s Trademark Claims Are Frivolous ................................................ 6

1.

STR Falsely Asserts That It Owns A RegisteredTrademark ..................................................................................... 6

2.

STR Has Refused To Disclose the Pre-Filing Basis For ItsOther Trademark and Unfair Competition Claims ....................... 7

D.

STR’s Copyright Claim Is Frivolous ...................................................... 7

E. An Appropriate Sanction Is To Dismiss STR’s Complaint, AndAward JNC Its Fees And Expenses ........................................................ 8

IV.

CONCLUSION ................................................................................................. 9




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763006.1 ii


TABLE OF AUTHORITIES

Page(s)FEDERAL CASES

B&H Med., LLC v. ABP Admin., Inc.,

526 F.3d 257 (6th Cir. 2008) ................................................................................ 9

Business Guides, Inc. v. Chiromatic Comm’ns Enters., Inc.. 498 U.S. 533, 111 S. Ct. 922, 112 L. Ed. 2d 1140 (1991) ................................... 9

Cal. Architectural Bldg. Products, Inc. v. Franciscan Ceramics, Inc.,818 F.2d 1466 (9th Cir. 1987) .............................................................................. 5

Cel-Tech Comms. & Cel-Comms., Inc. v. Los Angeles Cellular Tel. Co.,20 Cal.4th 163 (1999) ........................................................................................... 7

Cooter & Gell v. Hartmarx Corp.,496 U.S. 384, 110 S. Ct. 2447, 110 L. Ed. 2d 359 (1990) ................................... 5

Eon-Net LP v. Flagstar Bancorp.,653 F.3d 1314 (Fed. Cir. 2011) ........................................................................ 4, 8

Holgate v. Baldwin, 425 F.3d 671 (9th Cir. 2005) ................................................................................ 4

Huettig & Schromm, Inc. v. Landscape Contractors Council of N. Cal.,790 F.2d 1421 (9th Cir. 1986) .............................................................................. 5

Judin v. United States,110 F.3d 780 (Fed. Cir. 1997) .............................................................................. 8

Kendrick v. Zanides,609 F. Supp. 1162 (N.D. Cal. 1985) ..................................................................... 9

Mercury Air Group, Inc. v. Mansour,237 F.3d 542 (5th Cir. 2001) ................................................................................ 8

Morris v. Wachovia Sec., Inc. ,448 F.3d 268 (4th Cir. 2006) ................................................................................ 5

Petrella v. Metro-Goldwyn-Mayer, Inc.,__ U.S. __, 134 S. Ct. 1962 (2014) .................................................................... 7

Phonometrics Inc. v. Economy Inns of Am.,349 F.3d 1356 (Fed. Cir. 2003) ............................................................................ 5

Q-Pharma, Inc. v. Andrew Jergens Co. ,360 F.3d 1295 (Fed. Cir. 2004) ............................................................................ 4

View Eng’g, Inc. v. Robotic Vision Sys., Inc.,208 F.3d 981 (Fed. Cir. 2000) ...................................................................... 4, 5, 8




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763006.1 iii


FEDERAL RULES AND STATUTES

15 U.S.C. § 1114 ........................................................................................................ 6

15 U.S.C. § 1116 ........................................................................................................ 6

17 U.S.C. § 408 .......................................................................................................... 7

17 U.S.C. § 411 .......................................................................................................... 7

35 U.S.C. § 131 .......................................................................................................... 5

35 U.S.C. § 271 .......................................................................................................... 5

35 U.S.C. § 292 .......................................................................................................... 5

Fed. R. Civ. P. 11 .............................................................................................. passim

Fed. R. Civ. P. 41 ....................................................................................................... 8

CALIFORNIA STATUTES

California Business and Professions Code § 17200 .................................................. 7




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763006.1 1MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION UNDER RULE 11

I. INTRODUCTION

The Complaint [ECF 1] filed by Plaintiff JAT Wheels, Inc. d/b/a STR Racing

(“STR”) against Defendant JNC Wheels Collection (“JNC”) is riddled with false

statements and frivolous claims.1

For example:

•

STR falsely states that it owns “U.S. Design Patents” [ECF 1 at ¶ 15],

and instead attempts to assert patent infringement based on pending

patent applications that have not issued;

• STR falsely states that it owns a “registered” trademark [ECF 1 at

¶ 14];

• STR improperly claims that it “owns the copyrights and ownership

rights to [certain] photographs” [ECF 1 at ¶ 19].

Even after being confronted with the many fundamental weaknesses in its

case (such as asserting non-existent patents) and the lack of any objectively

reasonable basis for its claims under Rule 11 (see Juo Exh. D), STR refused to

provide a substantive response (see Juo Exh. E), thereby forcing JNC to prepare this

motion for sanctions under Rule 11.

II.

STATEMENT OF FACTS

A. The Parties

STR is a distributer of automobile wheels. JNC also is a distributer of

automobile wheels. Both parties normally sell wheels designed and manufactured

by others.

On December 9, 2013, a preliminary injunction was entered against STR for

selling wheels that infringed the design patent of a third party, Vossen Wheels. See

Order for Preliminary Injunction, Vossen Wheels, Inc. v. Toprich (U.S.A.), Inc., No.

13-7747 (C.D. Cal. Dec. 9, 2013), ECF No. 29 (see Juo Exh. F).

1 A copy of STR's Complaint against JNC also is attached as Juo Exh. A.




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But STR may have learned the wrong lesson from its initial experience with

patent infringement litigation.

On June 24, 2014, STR filed this lawsuit against JNC alleging, among other

claims, patent infringement based on pending patent applications rather than on

issued patents. [ECF 1]. On that same day, STR filed a lawsuit against Spec-1

Racing Wheels, Inc., alleging similar claims of patent infringement based on

pending patent applications. Complaint, JAT Wheels, Inc. d/b/a STR Racing v.

Spec-1 Racing Wheels, Inc., No. 14-4897 (C.D. Cal. Jun. 24, 2014), ECF No. 1

(copy attached as Juo Exh. H). The following week, STR filed two more patent

infringement lawsuits based on the pending patent applications. Complaint, JAT

Wheels, Inc. d/b/a STR Racing v. DB Motoring Group, Inc., No. 14-5097 (C.D. Cal.

Jul. 1, 2014), ECF No. 1 (copy attached as Juo Exh. I); Complaint, JAT Wheels, Inc.

d/b/a STR Racing v. Trade Union Int’l, Inc., No. 14-5172 (C.D. Cal. Jul. 3, 2014),

ECF No. 1 (copy attached as Juo Exh. J). Thus, in the span of a week, STR has filed

four patent infringement lawsuits based on patent applications instead of an actual

patent.

B.

STR’s Complaint Against JNC Alleging Federal Trademark

Infringement, Patent Infringement, And Copyright Infringement

STR’s complaint against JNC, alleged a number of claims including patent

infringement, trademark infringement, and copyright infringement. [ECF 1].

1. STR’s Alleged “U.S. Design Patents”

In paragraph 15 of its Complaint, STR states that it owns “U.S. Design

Patents.” [ECF 1]. This is false. The numbers identified in STR’s Complaint areactually the application numbers for patent applications that STR filed with the

USPTO about a month before filing its Complaint.2 Juo Decl. at ¶ 2. These are not

2 They follow the numbering convention for design patent applications (which

currently begin with the numerical series prefix “29”) instead of that for an issueddesign patent (which begin with the letter "D"). Juo Decl. at ¶¶ 2 and 8.




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issued patents. There are no actual patents identified in or attached to STR’s

Complaint.3

2. STR’s Alleged “Registered” Trademark

In paragraph 14 of its Complaint, STR states that it owns a “registered”

trademark whose “registration number is 86256705.” [ECF 1]. This is false. The

USPTO has not issued any such trademark registration to STR. The number

provided by STR is actual the serial number for a trademark application that

STR filed with the USPTO about two months before filing its Complaint. Juo Decl.

at ¶ 4 and 5; Juo Exhs. B and C. Although a trademark application for STR

RACING was filed on April 18, 2014, the records of the U.S. Patent and Trademark

Office (“USPTO”) clearly show that a trademark registration has not been issued.

Juo Exhs. B and C. There is no actual trademark registration identified in STR’s

Complaint. Moreover, STR has refused to provide JNC with copies or samples of

the alleged infringement which STR relied upon for its pre-filing investigation for

its Complaint.

3.

STR’s Alleged “Copyright”

In paragraph 19 of its Complaint, STR states that it owns the “copyrights” to

certain photographs, but fails to identify a copyright registration for those

photographs. [ECF 1]. Moreover, JNC is unaware of ever using any such

photographs whose copyright is owned by STR, and STR has refused to identify any

copyright registration, or to provide JNC with copies of the photographs or the

alleged infringement, which STR relied upon for its pre-filing investigation of

copyright infringement.C.

STR’s Refusal to Disclose the Pre-Filing Basis For Its Claims

On July 7, 2014, counsel for JNC telephoned counsel for STR to determine

the basis for STR’s Complaint. Counsel for STR declined to engage in a verbal

3 This also is true of the three other patent infringement lawsuits filed by STR in thisdistrict.




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discussion and instead requested that JNC send its questions in writing. About an

hour later, counsel for JNC sent an email pointing out false statements as well as

legally baseless claims in STR’s Complaint, and requesting that STR disclose its

pre-filing basis for those claims under Rule 11. Juo Exh. D. For example, there is

no registered trademark, or any factual basis to assert any trademark infringement or

unfair competition; there are no patents, and no legal basis to assert patent

infringement based on a patent application; and there is no copyright registration, or

any factual basis to assert copyright infringement.

However, as previously discussed, STR refused to substantively respond to

the questions that it had requested be made in writing. Juo Exh. E.

III. DISCUSSION

JNC does not believe that STR has any objectively reasonable legal or factual

basis for its claims against JNC. STR has not conducted a competent pre-filing

investigation under Rule 11, and certainly has not engaged in good faith discussions

with JNC to resolve this matter.

A.

Legal Standards Under Rule 11

Rule 11 requires a court to determine (1) whether the complaint is legally or

factually baseless from an objective perspective, and (2) if the attorney has

conducted a reasonable and competent inquiry before signing and filing it. Holgate

v. Baldwin, 425 F.3d 671, 676 (9th Cir. 2005). A complaint is “frivolous,” and

sanctions are justified, if it is both baseless and made without a reasonable and

competent pre-filing inquiry. Id .; see also View Eng’g, Inc. v. Robotic Vision Sys.,

Inc., 208 F.3d 981, 984 (Fed. Cir. 2000) (applying Ninth Circuit law).While the law of the regional circuit applies to an award of Rule 11 sanctions,

courts apply Federal Circuit law to determine the reasonableness of a pre-filing

patent infringement investigation made by a party and its attorney. See Q-Pharma,

Inc. v. Andrew Jergens Co., 360 F.3d 1295, 1299-1301 (Fed. Cir. 2004); Eon-Net

LP v. Flagstar Bancorp., 653 F.3d 1314, 1328 (Fed. Cir. 2011).




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Before filing a patent lawsuit, a competent pre-filing infringement analysis by

the lawyer must “conclude that there is a reasonable basis for a finding of

infringement of at least one claim of each patent so asserted.” View Eng’g., 208

F.3d at 984. Counsel’s legal experience may be considered in determining whether

a pre-filing inquiry was reasonable or not. Huettig & Schromm, Inc. v. Landscape

Contractors Council of N. Cal., 790 F.2d 1421, 1426 (9th Cir. 1986); see also

Phonometrics Inc. v. Econ. Inns of Am., 349 F.3d 1356, 1366 (Fed. Cir. 2003).

Furthermore, a reasonable pre-filing inquiry requires that the lawyer seek

credible information rather than proceed on mere suspicions or supposition for the

claims being asserted in the complaint. Fed. R. Civ. P. 11(b); Cooter & Gell v.

Hartmarx Corp., 496 U.S. 384, 401-2, 110 S. Ct. 2447, 2459, 110 L. Ed. 2d 359

(1990); Cal. Architectural Bldg. Products, Inc. v. Franciscan Ceramics, Inc., 818

F.2d 1466, 1472 (9th Cir. 1987). The complaint must be well-founded with

evidentiary support for its factual contentions from an objective prospective. Fed.

R. Civ. P. 11(b)(3); Morris v. Wachovia Sec., Inc., 448 F.3d 268, 277 (4th Cir. 2006)

(“Factual allegations fail to satisfy Rule 11(b)(3) when they are ‘unsupported by any

information obtained prior to filing.’”).

B. STR’s Claims For Patent Infringement Are Frivolous Because STR

Is Asserting Pending Patent Applications Instead of Patents

An invention is not patented merely by filing a patent application. The

USPTO does not issue a patent until after it is examined. 35 U.S.C. § 131

(“Examination of application”). “Patent pending” is not the same as “patented.” 35

U.S.C. § 292 (“False marking”). There must be an issued patent before one canassert patent infringement. 35 U.S.C. § 271 (“Infringement of patent”). Without an

issued patent, there are no enforceable patent rights.




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This is a fundamental aspect of patent law that every patent attorney knows.

Counsel for STR, Tommy Wang,4 is a registered patent attorney, yet he signed

STR’s Complaint asserting claims of patent infringement based on pending patent

applications (while obscuring that fact by falsely referring to them as “U.S. Design

Patents” or “Patents” in STR’s Complaint). With no issued patent, there is utterly

no basis for STR’s claims of patent infringement. STR has refused to disclose any

legal or factual basis to support its frivolous claims of patent infringement based on

pending patent applications. Sanctions against STR and its counsel, Tommy Wang,

who signed its frivolous Complaint asserting non-existent patents, are appropriate

and warranted.

C. STR’s Trademark Claims Are Frivolous

1. STR Falsely Asserts That It Owns A Registered Trademark

In its Complaint, STR falsely states that it owns a “registered” trademark.

[ECF 1 at ¶ 14]. In reality, STR has only filed a trademark application which is

still pending with the USPTO. There is no registered trademark.

STR’s Count I asserting claims of federal trademark infringement and

trademark counterfeiting under 15 U.S.C. §§ 1114 and 1116, respectively, requires a

registered trademark. With no issued trademark registration, there is no basis for

these claims. STR has refused to disclose any legal or factual basis to support its

claims of trademark infringement and counterfeiting based on a pending trademark

application. Because there is no good faith basis for asserting these causes of action

sanctions against STR and its counsel, Tommy Wang, who signed its frivolous

Complaint falsely asserting a registered trademark, are appropriate and warranted.

4 On his law firm’s website, Mr. Wang touts that he "is a Registered Patent Attorney

who is licensed to practice law in California, the U.S. District Court for the CentralDistrict of California, and the U.S. Patent and Trademark Office with extensiveexperience representing clients in federal and state courts throughout the country."Juo Exh. K.




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2.

STR Has Refused To Disclose the Pre-Filing Basis For Its

Other Trademark and Unfair Competition Claims

In view of the frivolous nature of STR’s patent claims, and its false statement

about owning a “registered” trademark, JNC demanded that STR disclose the pre-

filing basis for its other trademark and unfair competition claims. This included

STR’s claims for false designation of origin, federal trademark dilution,5 federal

unfair competition, California common law unfair competition, and the Unfair

Competition Law (“UCL”) under California Business and Professions Code

§ 17200.6

STR, however, has refused to do so. A reasonable inference for STR’s

refusal is that STR had no objectively reasonable basis for asserting its claims

against JNC. Sanctions against STR and its counsel, Tommy Wang, who signed its

frivolous Complaint, are appropriate and warranted.

D. STR’s Copyright Claim Is Frivolous

In its Complaint, STR fails to assert that it owns a copyright registration

which is a prerequisite for filing a copyright infringement lawsuit. Petrella v.

Metro-Goldwyn-Mayer, Inc., __ U.S. __, 134 S. Ct. 1962, 1977 (2014) (citing 17

U.S.C. §§ 408(b), 411(a)).

In view of the aforementioned frivolous nature of STR’s patent claims and its

false statement regarding owning a “registered” trademark, JNC demanded that STR

disclose the pre-filing basis for its copyright infringement claim, such as an

identification of the copyright registration, and copies of the photograph in question

and the alleged infringement.

5 There also appears to be no basis to assert that the STR RACING mark is“famous” under 15 U.S.C. 1125(c)(2)) (setting forth various factors to consider). 6 A UCL claim under Section 17200 requires an unlawful business act or practice,namely a business practice that violates another law. Cel-Tech Comms. & Cel-Comms., Inc. v. Los Angeles Cellular Tel. Co., 20 Cal.4th 163, 180 (1999). Thereappears to be no basis for STR’s allegations that JNC has violated any law.




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Because STR has refused to do so, a reasonable inference is that STR had no

objectively reasonable basis for its claims against JNC, so sanctions against STR

and its counsel, Tommy Wang, who signed its frivolous Complaint improperly

asserting copyright infringement, are appropriate and warranted.

E. An Appropriate Sanction Is To Dismiss STR’s Complaint, And

Award JNC Its Fees And Expenses

This case is but one of four patent infringement lawsuits that STR has

recently filed that are based on pending patent applications, instead of a patent

actually issued by the USPTO. STR’s pattern of filing frivolous lawsuits based on

false and non-existent patent rights is an abuse of the judicial system which has the

indicia of extortion. See Eon-Net , 653 F.3d at 1326 (inferring that a patent lawsuit

was filed in bad faith and for an improper purpose because the plaintiff’s case had

“indicia of extortion”).

The Court should dismiss STR’s Complaint under Rule 41(b) because of

STR’s failure to comply with Rule 11.

Furthermore, an award of attorneys’ fees and expenses is appropriate when an

attorney has failed to make a reasonable investigation of the facts and the law before

filing a complaint. Fed. R. Civ. P. 11(c)(2); see also Mercury Air Group, Inc. v.

Mansour , 237 F.3d 542, 548 (5th Cir. 2001) (the purpose of Rule 11 is to deter

baseless filings, and “the award of attorney’s fees approximates optimal

deterrence”); Judin v. United States, 110 F.3d 780, 785 (Fed. Cir. 1997) (suggesting

“the amount of the reasonable expenses incurred because of the filing of the

[complaint], including a reasonable attorney’s fee” would be an appropriate sanctionunder Rule 11); View Eng’g, 208 F.3d at 988 (affirming $97,825.48 in attorney’s

fees against patentee’s counsel for failing to conduct a proper pre-filing patent

infringement analysis). As previously discussed, STR has refused to disclose any

information regarding whether its pre-filing investigation was competent or not.




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A monetary sanction should be levied against both STR and its counsel to

stop this abuse of the judicial system. See Business Guides, Inc. v. Chiromatic

Comm’ns Enters., Inc., 498 U.S. 533, 111 S. Ct. 922, 933, 112 L. Ed. 2d 1140

(1991); B&H Med., LLC v. ABP Admin., Inc., 526 F.3d 257, 271 (6th Cir. 2008)

(both the client and the attorneys “should have been well aware of the many

fundamental weaknesses in its case”); Kendrick v. Zanides, 609 F. Supp. 1162, 1173

(N.D. Cal. 1985) (both the client and the attorney shared responsibility for litigation

strategy).

Should the Court award JNC its attorneys’ fees and costs, JNC requests two

weeks in which to prepare and submit an accounting of its attorneys’ fees and costs

incurred in connection with this litigation.

IV.

CONCLUSION

This is a frivolous lawsuit that should never have been brought. From all

indications, STR has failed to conduct a competent pre-filing analysis before filing

suit. JNC attempted to dissuade STR from its reckless and damaging course, but to

no avail. STR’s Complaint should be dismissed, and JNC is entitled to an award of

its attorneys’ fees and expenses.

DATED: July 11, 2014 FULWIDER PATTON, LLP

B : /s/ James JuoJames JuoAttorneys for DefendantJNC WHEEL COLLECTION




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DECLARATION OF JAMES JUO IN SUPPORT OF DEFENDANT’S MOTION UNDER RULE 11 AGAINST PLAINTIFF’S COMPLAINT

James Juo (State Bar No. 193852) [email protected] PATTON, LLPHoward Hughes Center6060 Center Drive, Tenth FloorLos Angeles, California 90045Telephone: (310) 824-5555Facsimile: (310) 824-9696





Plaintiff,

v.


Defendants.


DECLARATION OF JAMES JUO INSUPPORT OF DEFENDANT’SMOTION UNDER RULE 11AGAINST PLAINTIFF’SCOMPLAINT



James V. Selna



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I, James Juo, hereby declare as follows:

1. I am a registered patent attorney with the law firm of Fulwider Patton

LLP, and I am duly licensed to practice law in the state of California. I represent

Defendant JNC Wheel Collection in the above-identified matter. Unless otherwise

indicated, I have personal knowledge of the facts stated herein, and, if called as a

witness, could and would testify to the following matters.

2. Attached as Exhibit A is a copy of the Complaint filed by STR in this

action on June 24, 2014. The Exhibits A, C, E, G, and I attached to STR’s

Complaint are not design patents, but are filing receipts for design patent

applications filed with the U.S. Patent and Trademark Office (“USPTO”) in late

May 2014. For example, the numbering convention for design patents is to begin

the patent number with a letter prefix, namely the letter “D.” The numbers

identified in STR’s Complaint, however, all begin with the number “29” which is

the current two-digit series prefix for design patent applications. The patent

infringement claims in STR’s Complaint are not based on actual patents.

3. Attached as Exhibit B is a printed record from the Trademark

Electronic Search System (TESS) maintained by the USPTO for U.S. trademark

application serial no. 86256705 filed on April 18, 2014, for the STR RACING mark.

STR’s Complaint states that STR owns a registered trademark and that the “STR

Trademark registration number is 86256705.” This is not a trademark registration

number, but instead appears to be a trademark application serial number, and there

is no indication that the USPTO has issued a trademark registration for this

application.

4. Attached as Exhibit C is a printed record from the Trademark Status &Document Retrieval (TSDR) system maintained by the USPTO for U.S. trademark

application serial no. 86256705 filed on April 18, 2014. There is no indication that

the USPTO has issued a trademark registration for this application. Instead, under

“Status,” the TSDR record states, “New application will be assigned to an




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examining attorney approximately 3 months after filing date.” Thus, application

serial no. 86256705 is not expected to even be assigned to an trademark examiner

for examination until mid-July 2014.

5. Attached as Exhibit D is a copy of an email dated July 7, 2014 from

myself as counsel for JNC, to Tommy Wang, counsel for plaintiff JAT Wheels, Inc.

d/b/a STR Racing. This email was sent about an hour after a telephone conversation

with Mr. Wang in which I had identified myself as counsel for Defendant JNC, and

questioned Mr. Wang about the basis for the claims in STR’s Complaint. Mr. Wang

requested that I send him something in writing rather than engage in a verbal

discussion. This July 7 email attached as Exhibit D is a copy of that writing

requested by Mr. Wang.

6. Attached as Exhibit E is a copy of an email dated July 8, 2014 from

Tommy Wang, counsel for STR, to me as counsel for JNC. In this July 8 email, Mr.

Wang declined to address the substance of the issues raised in the email that he had

requested from me.

7. Attached as Exhibit F is a copy of an Order for Preliminary Injunction

issued against STR in Vossen Wheels, Inc. v. Toprich (U.S.A.), Inc., No. 13-7747, by

Judge Audrey B. Collins of the U.S. District Court for the Central District of

California on December 9, 2013.

8. Attached as Exhibit G is a copy of U.S. Design Patent No. D681,541

which was the patent-in-suit in Vossen Wheels, Inc. v. Toprich (U.S.A.), Inc. The

numbering convention for design patents is to begin the patent number with a letter

prefix, namely the letter “D.” Also, as shown on the face of the design patent, the

application number for a design patent application begins with a two-digit numericalseries prefix. For U.S. Design Patent No. D681,541, its application had “29” as its

series prefix.




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9. Attached as Exhibit H is a copy of a Complaint filed by STR in JAT

Wheels, Inc. d/b/a STR Racing v. Spec-1 Racing Wheels, Inc., No. 14-4897 in the

U.S. District Court for the Central District of California on June 24, 2014.

10. Attached as Exhibit I is a copy of a Complaint filed by STR in JAT

Wheels, Inc. d/b/a STR Racing v. DB Motoring Group, Inc., No. 14-5097 in the U.S.

District Court for the Central District of California on July 1, 2014.

11. Attached as Exhibit J is a copy of a Complaint filed by STR in JAT

Wheels, Inc. d/b/a STR Racing v. Trade Union Int’l, Inc., No. 14-5172 in the U.S.

District Court for the Central District of California July 3, 2014.

12. Attached as Exhibit K is a biographical profile of Tommy Wang

printed from the Yang & Wang website at http://www.yangwanglaw.com/tommy-

. The first paragraph of his profile states he “is a Registered Patent Attorney

who is licensed to practice law in California, the U.S. District Court for the Central

District of California, and the U.S. Patent and Trademark Office with extensive

experience representing clients in federal and state courts throughout the country.”

I declare under penalty of perjury that the foregoing is true and

correct. Executed on July 11, 2014.

__________________James Juo




EXHIBIT APage 3 of 69




Electronic Acknowledgement Receipt

19153968EFS ID:

Application Number: 29492155

Confirmation Number: 2886

International Application Number:

Title of Invention: STR513 Wheel Design

First Named Inventor/Applicant Name: Tom Luo

Customer Number: 101028

Application Type: Design

Time Stamp: 03:07:56

Filing Date:

Receipt Date: 29-MAY-2014

Attorney Docket Number:

Filer Authorized By:

Filer: Elizabeth Yang

Payment information:

Submitted with Payment yes

Payment was successfully received in RAM 380$

Payment Type Credit Card

RAM confirmation Number 12608

Deposit Account

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This Acknowledgement Receipt evidences receipt on the noted date by the USPTO of the indicated documents,characterized by the applicant, and including page counts, where applicable. It serves as evidence of receipt similar to a

Post Card, as described in MPEP 503.

New Applications Under 35 U.S.C. 111

If a new application is being filed and the application includes the necessary components for a filing date (see 37 CFR1.53(b)-(d) and MPEP 506), a Filing Receipt (37 CFR 1.54) will be issued in due course and the date shown on this

Acknowledgement Receipt will establish the filing date of the application.

National Stage of an International Application under 35 U.S.C. 371

If a timely submission to enter the national stage of an international application is compliant with the conditions of 35U.S.C. 371 and other applicable requirements a Form PCT/DO/EO/903 indicating acceptance of the application as a

national stage submission under 35 U.S.C. 371 will be issued in addition to the Filing Receipt, in due course.

New International Application Filed with the USPTO as a Receiving Office

If a new international application is being filed and the international application includes the necessary components for

an international filing date (see PCT Article 11 and MPEP 1810), a Notification of the International Application Numberand of the International Filing Date (Form PCT/RO/105) will be issued in due course, subject to prescriptions concerning

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EXHIBIT BPage 1 of 1

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EXHIBIT CPage 2 of 2

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EXHIBIT DPage 2 of 2

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James,

Please be advised that I will not be replying to your emails with a point-by-point rebuttal. Both emailscontain so many factual inaccuracies and unrelated issues that attempting to address each one wouldbe an inefficient use of my firm’s time and our client’s money.

From your emails, it appears that you represent JNC Wheels Collection, even though you neverconfirm that in writing. If this is not correct, please let me know.

Again, as indicated in our letter to JNC Wheels Collection, we are willing to dismiss this case on thefollowing conditions:

1. JNC Wheels Collection must stop selling the STR 513 immediately.

2. JNC Wheels Collection must hand over all remaining inventory of the STR 513 to us orprovide proof that they destroyed them.

3. JNC Wheels Collection must stop referring to, or designating themselves as an authorizedSTR manufacturer, seller, or dealer.

4. JNC Wheels Collection, from here on out, must not infringe on any other patents JAT currentlyholds or will hold in the future.

5. JNC Wheels Collection must pay for the cost of litigation, attorney’s fees, damages, andanything else that JAT is monetarily entitled to.

We have yet to formally effectuate service of process of JNC. Please advise if you are willingto accept service on their behalf by July 11, 2014.

The foregoing is written for purposes of comprise and settlement, and is covered by Federal

Rule of Evidence 408. Additionally, nothing herein shall limit or be constructed to limit any position,right, or claim that our client may have, all of which are expressly reserved.

Regards,

EXHIBIT EPage 1 of 5

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Tommy Wang

On Tue, Jul 8, 2014 at 10:03 AM, James Juo < [email protected]> wrote:

Tommy,

Following up on my earlier email, please note that before filing a patent lawsuit, Rule 11 requires a competent

pre-filing infringement analysis by a lawyer to find “a reasonable basis for a finding of infringement of at least

one claim of each patent so asserted.” View Eng'g., 208 F.3d at 984. Furthermore, a reasonable pre-filing

inquiry requires that the lawyer seek credible information rather than proceed on mere suspicions or supposition

for the claims being asserted in the complaint. Fed. R. Civ. P. 11(b); Cooter & Gell v. Hartmarx Corp., 496

U.S. 384, 401-2, 110 S. Ct. 2447, 2459, 110 L. Ed. 2d 359 (1990); Cal. Architectural Bldg. Products, Inc. v.

Franciscan Ceramics, Inc., 818 F.2d 1466, 1472 (9th Cir. 1987). The complaint must be well-founded with

evidentiary support for its factual contentions from an objective prospective. Fed. R. Civ. P. 11(b)(3); Morris v.

Wachovia Sec., Inc., 448 F.3d 268, 277 (4th Cir. 2006) (“Factual allegations fail to satisfy Rule 11(b)(3) whenthey are ‘unsupported by any information obtained prior to filing.’”).

In addition to my prior inquiry as to whether JAT is asserting any issued patents for its patent infringementclaims (since no issued patents are identified in the complaint), please let me know if you inspected any of the

actual accused products as part of your pre-filing infringement analysis (and, if so, please identify those

products).

James Juo

PartnerFULWIDER • PATTON LLP

Intellectual Property Law

6060 Center Drive, Tenth Floor, Los Angeles, CA 90045

T: 310.824.5555 | DD: 310.242.2656 | F: 310.824.9696

Email: [email protected] | website: www.fulpat.com

If you have received this communication in error, please notify us immediately by return e-mail or by telephone, 310-824-5555, and delete and/or destroy all copies of

the message.


80




Tommy,

Following up our earlier telephone conversation (in which I was immediately transferred from you to

your associate Andrew, and then back to you again), there are severe deficiencies in the complaint JAT

filed against JNC.

The complaint was not clear on what “trademark rights” were being asserted. Andrew confirmed that

the “STR RACING” work mark is the only trademark being asserted by JAT in this litigation. Please

confirm that is correct.

The complaint asserts that “Plaintiff registered its trademark on April 18, 2014,” the “STR Trademark

registration number is 86256705,” and JNC infringed “Plaintiff’s registered STR Trademark in violation

of 15 U.S.C. § 1114(1).” Those are false statements. Although a trademark application for STR

RACING was filed on April 18, 2014, the USPTO has not issued a trademark registration. You have no

basis to assert “federal trademark infringement and trademark counterfeiting” under the Lanham Actwhich require a registered trademark.

To the extent you are asserting unregistered rights under a different statute, please identify the specific

factual and legal basis for your claim. The complaint only makes general allegations against JNC.

During our short telephone conversation, Andrew asserted that JNC used the STR RACING mark on the

JNC website and on its Facebook page. I am unaware of any such use. Please provide me with the Rule

11 factual basis, including any screenshots, to support your assertion that JNC has infringed the STRRACING mark.

The complaint also asserts dilution, but there appears to be no basis to assert that the STR RACING

mark is “famous” as required by the Lanham Act . Please provide me with the Rule 11 factual basis foryour assertion that the STR RACING mark is famous (i.e., “widely recognized by the general

consuming public” under 15 U.S.C. 1125(c)(2)).

The complaint also asserts copyright infringement of an unidentified photograph, but provides no

identification or sample of the alleged work. Nor does the complaint assert that JAT has obtained a

copyright registration (which is a prerequisite for filing suit). Petrella v. Metro-Goldwyn-Mayer, Inc.,

134 S. Ct. 1962, 1977 (2014) (citing 17 U.S.C. §§ 408(b), 411(a)). Again, you appear to have no basis

to assert copyright infringement. Please provide me with the Rule 11 factual basis for your assertion

that JNC has infringed any copyright.


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****************************************************

This e-mail and any attachments thereto, is intended only for use by the addressee(s) named herein and may

contain legally privileged and/or confidential information. If you are not the intended recipient of this e-mail,

you are hereby notified any dissemination, distribution or copying of this e-mail, and any attachments thereto, is

strictly prohibited. If you receive this e-mail in error please immediately notify Attorneys at

[email protected] and permanently delete the original copy and any copy of any e-mail, and any

printout thereof.

****************************************************


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Case 2:13-cv-07747-ABC-CW Document 29 Filed 12/09/13 Page 1 of 3 Page ID #:178

EXHIBIT FPage 1 of 3

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EXHIBIT GPage 1 of 3

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Case 2:14-cv-04897-DMG-MAN Document 1 Filed 06/24/14 Page 1 of 71 Page ID #:7

EXHIBIT HPage 1 of 71

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JAT WHEELS INC.’S COMPLAINT

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Plaintiff, JAT WHEELS, Inc. a California Corporation, dba STR Racing

(hereinafter “Plaintiff”), hereby files this Complaint against Defendant JNC

WHEEL COLLECTION (hereinafter “Defendant”), and DOES 1 to 10, and alleges

as follows:

INTRODUCTION

1. Plaintiff files this action to combat the willful sale of unlicensed and

counterfeit products (hereinafter “Infringing Products”) bearing the

Plaintiff‘s exclusive Trademark and utilizing the Plaintiff’s exclusive

design patents, and unauthorized use of Plaintiff’s copyrighted

photographs. The Defendant is a corporation specializing in the research,manufacture and sales of aftermarket automobile wheels.

2. Plaintiff seeks a Permanent Injunction, damages, costs, and attorneys’ fees

as authorized by the Lanham Act, the patent laws of the United States,

Title 35, United States Code, California’s common law, and California

Business & Professions Code.

JURISDICTION AND VENUE

3.

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

question) and 28 U.S.C. § 1338(a) (action arising under an Act of

Congress relating to patents or trademarks).

4. On information and belief, Defendants are subject to personal jurisdiction

in the Central District of California (the “District”), consistent with the

principles of due process and the California Long Arm Statute, because

Defendants offer their products for sale in this District, have transacted

business in this District, have committed and/or induced acts of patent

infringement in this District, and/or have placed infringing products into



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the stream of commerce through established distribution channels with the

expectation that such products will be purchased by residents of this

District.

5.

Further, this Court has jurisdiction over Plaintiff’s California state

statutory and common law claims pursuant to 28 U.S.C. § 1367.

6. Supplemental jurisdiction exists over Defendant because on information

and belief, Defendant conducts business in California and in this judicial

district, has purposefully availed itself to California and in this judicial

district, or has otherwise availed itself of the privileges and protections of

the law of the State of California, such that this Court’s assertion of jurisdiction over Defendant does not offend traditional notions of fair play

and due process.

7. Venue is proper within the Central District of California pursuant to 28

U.S.C. §§ 1391(b) and 1400(a) because on information and belief, a

substantial part of the events or omissions giving rise to the claim

occurred in this judicial district, and has caused damages to Plaintiff in

this district.

THE PARTIES

8. Plaintiff, JAT WHEELS, INC., dba STR Racing, is a California

corporation duly organized and existing under the laws of the State of

California, and whose office is located at address 2107-D W.

Commonwealth Ave. #392, Alhambra, California 91803.

9. Upon information and belief, Defendant, SPEC-1 RACING WHEELS,

INC (hereinafter “Defendant”), is, and at all times mentioned herein was,

a corporation organized and existing under the laws of the State of



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Florida, having its principal place of business at 8419 Sunstate St.,

Tampa, FL 33634.

10. The true names and capacities, whether individual, corporate, associate or

otherwise, of Defendants herein named DOES 1-10, inclusive are

unknown to Plaintiff. Plaintiff therefore sues said Defendants by such

fictitious names. When the true names and capacities of said Defendants

have been ascertained, Plaintiff will amend this pleading accordingly.

11. Plaintiff further alleges that Defendant and DOES 1-10, inclusive sued

herein by fictitious names are jointly, severally and concurrently liable

and responsible with the named Defendant upon the causes of actionhereinafter set forth.

12. Plaintiff is informed and believes and thereon alleges that at all times

mentioned herein Defendant, and DOES 1-10, inclusive, and each of

them, were the agents, servants, and employees of every other Defendant

and the acts of each Defendant, as alleged herein, were performed within

the course and scope of that agency, service or employment.

FACTS

13. Plaintiff owns the exclusive rights to numerous patents, copyrighted and

trademarked properties.

14. Plaintiff owns and holds the exclusive rights, title, and interest to market

and sell merchandise bearing the STR Trademark (the “STR Trademark”

or “Trademark”). Plaintiff registered its trademark on April 18, 2014 with

the United States Patent and Trademark Office. The STR Trademark

registration number is 86256705.



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15. Plaintiff is the owner of all right, title and interest in the following U.S.

Design Patents: 1) Application No. 29,492,155 (the “’155 patent”); 2)

Application No. 29,492,156 (the “’156 patent”); 3) Application No.

29,492,157 (the “’157 patent”); 4) Application No. 29,492,158 (the “’158

patent”); and 5) Application No. 29,492,159 (the “’159 patent”),

(collectively, the “Design Patents”).

16. As a result of Defendant’s unlawful infringement of the Plaintiff’s

Design Patents, Plaintiff has suffered and will continue to suffer damages.

Plaintiff is entitled to recover from Defendant the damages suffered as a

result of Defendant’s unlawful acts.17. In or around May 2014, Plaintiff discovered that Defendant was

manufacturing and selling automobile parts on the Internet that infringed

on Plaintiff’s Design Patents. Some of these parts also bore Plaintiff’s

STR Trademark.

18. Defendant uses the STR Trademark in connection with its aftermarket

automobile parts that are in direct competition with Plaintiff’s aftermarket

automobile parts. Defendant has used Plaintiff’s trademark in its

advertising for such products and services, thereby competing unfairly

with Plaintiff, infringing upon Plaintiff’s trademark rights, and improperly

trading on the goodwill established by Plaintiff.

19. In or around May 2014, Plaintiff published photographs to its website

displaying its aftermarket automobile parts. Plaintiff owns the copyrights

and ownership rights to these photographs.



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26. Plaintiff, and/or those under its authority, manufactures, sells, and

distributes all of its advertising and products in conformity with the

provisions of the United States Trademark law.

27.

Despite having actual and constructive notice of the Plaintiff and/or its

licensors’ federal registration rights, prior common law and statutory

rights to the STR Trademark, Defendant has adopted and used the STR

Trademark in conjunction with the sale of merchandise in the State of

California and interstate commerce, including, by way of example and not

limitation, the SP-4 wheel, attached as Exhibit J.

28.

Defendant has distributed, sold, or offered for sale merchandisedisplaying Plaintiff’s Trademark without Plaintiff’s authorization.

Defendant’s distribution, sale, or offer for sale of merchandise bearing

Plaintiff’s Trademark in California and interstate commerce has and will

cause the likelihood of confusion, deception, and mistake in that

consumers will conclude that the products sold by the Defendant are

author ized, sponsored, approved, or associated with the Plaintiff.

29.

Defendant’s use in commerce of Plaintiff’s Trademark in conjunction

with the sale of merchandise is an infringement of Plaintiff’s registered

STR Trademark in violation of 15 U.S.C. § 1114(1).

30. Defendant committed the acts alleged herein intentionally, fraudulently,

maliciously, willfully, wantonly, and oppressively with the intent to injure

the Plaintiff and its business.

31. The Plaintiff has suffered damages as a result of the Defendant’s acts.



96





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32. The Infringing Products bearing the Plaintiff’s Trademark that the

Defendant’s manufactured, sold, distributed, or offered for sale constitutes

a counterfeit product pursuant to 15 U.S.C. § 1116(d).

33.

Pursuant to 15 U.S.C. § 1117, Plaintiff is entitled to recovery of (1)

Defendant’s profits; (2) Plaintiff’s damages, including lost profits; and (3)

costs of the action. Plaintiff is further entitled to trebled damages above

the amount of actual damages in a sum of not more than three times the

amount of actual damages. Defendant’s intentional and deceitful actions

make this a case in which the Plaintiff is entitled to an award of attorneys’

fees. 34. By reason of the aforementioned acts by Defendant, Plaintiff has suffered

and will continue to suffer irreparable damage, in an amount to be

determined, and damages will continue unless and until enjoined by Order

of this Court.

COUNT II- FALSE DESIGNATION OF ORIGIN [15 U.S.C.

§ 1125(a)/Lanham Act §43(a)]

35.

Plaintiff repeats and re-alleges, as set forth herein, the allegations

contained in paragraphs 1 through 34 and brings the following claim for

false designation of origin pursuant to 15 U.S.C. § 1125(a) and the

Lanham Act § 43(a) against the Defendant.

36. Defendant has used Plaintiff’s registered STR Trademark in commerce in

connection with its own goods, where use is likely to cause confusion, or

to cause mistake, or to deceive as to the origin, sponsorship, association or

approval of such goods.



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determined, which damage will continue unless and until enjoined by

Order of this Court.

COUNT III- FEDERAL TRADEMARK DILUTION [15 U.S.C. §1125(c)]

42. Plaintiff repeats and re-alleges, as if set forth herein, the allegations


trademark dilution pursuant to 15 U.S.C. § 1125(c) against the Defendant.

43. Plaintiff’s registered Trademark is distinctive, well known and famous.

44.

Defendant is diluting the distinctiveness of Plaintiff’s Trademark bymarketing and selling inferior goods bearing marks virtually identical or

confusingly similar to Plaintiff’s registered Trademark. Upon information

and belief, Defendant has engaged in the conduct alleged in these claims,

willfully intending to trade on Plaintiff’s reputation and/or to cause

dilution of the reputable and distinctive Trademark owned by Plaintiff.

45.

Defendant markets, conducts business, and publicly represents that the

Trademark is associated or connected to the Defendant’s business thereby

creating a false designation of origin of Plaintiff’s’ brand of goods and

services. Thus, Defendant’s acts violate 15 U.S.C. §1125(c).

46. As a direct and proximate result of Defendant’s trademark dilution,

Plaintiff has and will continue to suffer damages to its business, reputation

and good will, and the loss of royalties and profits that Plaintiff would

have made but for Defendant’s acts. Upon information and belief,

Defendant’s acts of infringement have also resulted in substantial profits

for the Defendant. The amount of these damages will be proven at trial.



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COUNT IV-FEDERAL COPYRIGHT INFRINGEMENT

47. Plaintiff repeats and re-alleges, as set forth herein, the allegations

contained in paragraphs 1 through 46.

48.

Plaintiffs were and are the exclusive holder of all rights, title and interest

in their photographs, as separate and distinct works.

49. Defendant has infringed and is infringing the copyrighted photographs by

unlawfully reproducing and using such photographs in violation of the

United States Copyright Act, 17 U.S.C. 106.

50.

Defendant’s infringement was and is willful, in bad faith, and executedwith full knowledge of Plaintiff’s copyright, and in conscious disregard

for Plaintiff’s exclusive rights in the protected work.

51. Defendant’s deliberate infringement of Plaintiff’s copyrights has greatly

and irreparably damaged Plaintiff.

52. Defendant’s production of infringing products and copyrighted material,

and Defendant’s wrongful conduct, have deprived and continue to deprive

the Plaintiff of their opportunity of expanding their goodwill. Plaintiff is

entitled to an injunction restraining Defendant, its officers, agents, and

employees, and all persons acting in concert with it, from engaging in any

further acts in violation of the copyright laws.

53. Plaintiff is further entitled to recover the damages, including attorneys’

fees, they have sustained and will sustain, and any gains, profits, and

advantages obtained by Defendant as a result of Defendant’s acts of

infringement alleged above. At present, the amount of such damages,

gains, profits, are in an amount to be determined.



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COUNT V- INFRINGEMENT OF THE ‘155 PATENT

54. Plaintiff repeats and re-alleges, as if set forth herein, the allegations


55.

Plaintiff is the owner of all right, title, and interest in the ‘155 patent,

titled “STR513 Wheel Design” duly and properly issued by the U.S.

Patent and Trademark Office on May 29, 2014. A copy of the ‘155 patent

is attached as Exhibit A.

56. Defendants have been and/or are directly infringing and/or inducing

infringement of and/or contributory infringing the ‘155 patent by, among

other things, making, using, offering to sell or selling in the United States,or importing into the United States, products that are covered by the

design patent, including, by way of example and not limitation, the SPT-2

wheel, attached as Exhibit B.

57. Plaintiff is informed and believes, and on that basis alleges, that

Defendant’s infringement of the ’155 patent has been and continues to be

intentional, willful, and without regard to Plaintiff’s rights. Plaintiff is

informed and believes, and on that basis alleges, that Defendant’s

infringement of the ’155 patent is and has been intentional, deliberate, and

willful at least because it had knowledge of the ’155 patent through direct

or indirect communications with Plaintiff and/or as a result of its

participation in the aftermarket automobile parts industry.


Defendant has gained profits by virtue of its infringement of the ’155

Patent.



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59. Plaintiff has sustained damages as a direct and proximate result of

Defendant’s infringement of the ’155 Patent.

COUNT VI- INFRINGEMENT OF THE ‘156 PATENT



61. Plaintiff is the owner of all right, title, and interest in the ‘156 patent,


Patent and Trademark Office on May 29, 2014. A copy of the ‘156 patentis attached as Exhibit C.



other things, making, using, offering to sell or selling in the United States,

or importing into the United States, products that are covered by the

design patent, including, by way of example and not limitation, the SP-6

wheel, attached as Exhibit D.











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Patent.

65.

Plaintiff has sustained damages as a direct and proximate result of


COUNT VII- INFRINGEMENT OF THE ‘157 PATENT




titled “STR522 Wheel Design” duly and properly issued by the U.S.Patent and Trademark Office on May 29, 2014. A copy of the ‘157 patent

is attached as Exhibit E.





design patent, including, by way of example and not limitation, the SPT-8

wheel, attached as Exhibit F.









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Patent.





contained in paragraphs 1 through 71. 73. Plaintiff is the owner of all right, title, and interest in the ‘158 patent,



is attached as Exhibit G.





design patent, including, by way of example and not limitation, the SP-8

wheel, attached as Exhibit H.








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76.

Plaintiff is informed and believes, and on that basis alleges, that


Patent.




78.

Plaintiff repeats and re-alleges, as set forth herein, the allegationscontained in paragraphs 1 through 77.




is attached as Exhibit I.

80.

Defendants have been and/or are directly infringing and/or inducing




design patent.








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82.

Plaintiff is informed and believes, and on that basis alleges, that


Patent.



COUNT VI-FEDERAL UNFAIR COMPETITION [15 U.S.C. §1125(a)]

84.

Plaintiff repeats and re-alleges, as set forth herein, the allegationscontained in paragraphs 1 through 83 and brings the following claim for

unfair competition pursuant to 15 U.S.C. § 1125(a) against the Defendant.

85. As a direct result of the Plaintiff’s longstanding use, sales, advertising,

and marketing, Plaintiff’s Trademark has acquired a secondary and

distinctive meaning among the public who have come to identify

Plaintiff’s Trademark with the Plaintiff and its respective products.

86.

Plaintiff is informed and believes that thereon alleges that as early as May

of 2014, Defendant has infringed Plaintiff’s Trademark rights by

marketing and selling goods bearing marks virtually identical or

confusingly similar to the recognized and distinctive registered

Trademark, owned by Plaintiff.

87. The Infringing Products and related merchandise that the Defendant has

sold and distributed duplicates and appropriates Plaintiff’s Trademark and

deludes and confuses the public into believing that the Plaintiff approved,



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authorized, or sponsored the products and related merchandise sold,

offered for sale, or distributed by the Defendant.

88. Defendant, by misappropriating and using the lik enesses of Plaintiff’s

Trademark in connection with the sale of products and related

merchandise, is misrepresenting and will continue to misrepresent and

falsely descr i be to the general public the origin and sponsorship of their

products. Defendant has caused such products to enter into interstate

commerce willfully with full knowledge of the falsity of the designation

of their origin and description and representation in an effort to mislead

the purchasing public into believing that their products are authorized oremanate from the Plaintiff.

89. Defendant’s actions, as alleged herein, were and are likely to deceive the

consuming public and therefore constitute unfair and fraudulent business

practices in violation of 15 U.S.C. §1125(a).

90. Defendant’s unlawful, unfair, and fraudulent business practices described

above present a continuing threat to members of the public in that they are

likely to be deceived by the origin and quality of Plaintiff’s products.

91. Upon information and belief, Defendant’s acts of unfair competition have

resulted in substantial profits for the Defendant in an amount to be

determined. Defendant’s acts of unfair competition have also resulted in

damages to Plaintiff by causing a diversion of sales from Plaintiff to

Defendant, lost royalties and other damages resulting from irreparable

harm to Plaintiff’s goodwill. The exact amount of Plaintiff’s damages is to

be determined.

92. Plaintiff has also incurred costs and attorneys’ fees to bring this action.



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93. Defendant’s conduct has caused and will continue to cause irreparable

injury to Plaintiff unless permanently enjoined.

COUNT VII- CALIFORNIA COMMON LAW UNFAIR COMPETITION

94.

Plaintiff repeats and re-alleges, as set forth herein, the allegations


unfair competition pursuant to California’s common law against the

Defendant.

95. The Court has jurisdiction over this Cause pursuant to 28 U.S.C. § 1367.

96. By Defendant’s acts alleged herein, the Defendant has engaged in unfair

competition under the common law of the State of California.97. Defendant has distributed and sold Infringing Products displaying the

Trademark of the Plaintiff in California, thereby creating a false

designation of origin of Plaintiff’s brand of goods and unfairly competing

with Plaintiff’s business.

98. Upon information and belief, Defendant has knowingly and willfully

misappropriated Plaintiff’s Trademark in an effort to create the impression

that the Defendant’s counterfeit products are sanctioned by the Plaintiff

and to misappropriate the goodwill associated with Plaintiff’s Trademark,

entitling Plaintiff to an award of exemplary damages and attorneys’ fees.

99. The aforesaid acts of the Defendant have caused damage to Plaintiff, in

an amount to be determined.

100. By reason of the acts of the Defendants alleged herein, Plaintiff has

suffered, is suffering and will continue to suffer irreparable damage,

which damage will continue unless enjoined by Order of this Court.



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COUNT VI- UNFAIR COMPETITION UNDERCALIFORNIA

BUSINESS & PROFESSIONS CODE §17200, et seq.



unfair competition pursuant to California Business and Professions Code

§17200.

102. The Court has jurisdiction over this Cause pursuant to 26 U.S.C. §

1367.

103. By acts complained of herein, Defendant has engaged in unfair

competition under Section 17200 of the Business and Professions Code ofthe State of California.

104. Defendant’s use of the infringing mark complained of herein

constitutes deceptive and misleading advertising and is likely to, and is

intended to, cause confusion to the purchasers and potential purchasers of

the products.

105.

Defendant markets, conducts business, and publicly represents that the

Plaintiff’s registered Trademark is associated or connected to the

Defendant’s business and thus creates a false designation of origin of

Plaintiff’s brand of goods and services.

106. Upon information and belief, the aforesaid acts of Defendant was

undertaken willfully and with the intention of causing confusion, mistake

and deception, entitling the Plaintiff to an award of exemplary damages

and attorneys’ fees.

107.

The aforesaid acts of Defendant have caused damage to Plaintiff in an

amount to be determined.



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108. By reason of the acts of the Defendant alleged herein, Plaintiff has

suffered injury in fact and has lost money or property as a result of

Defendant’s acts of unfair business practices alleged herein, is suffering

and will continue to suffer irreparable damage, which irreparable damage

will continue unless enjoined by Order of this Court.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff demands entry of a judgment against the Defendant as

f ollows:

1. The Defendant, its officers, agents, servants, employees, attorneys, and

all those in active concert or participation with them be enjoined andrestrained:

a. From further using Plaintiff’s registered Trademark or any other

confusingly similar mark, in connection with the manufacture,

sale, advertisement or promotion of any product or any other

similar infringement of Plaintiff ’s Trademark rights, for products

not originating from Plaintiff or authorized by Plaintiff;

b.

From diluting any of Plaintiff’s Trademark or any other

confusingly similar mark;

c. From further using Plaintiff’s Design Patents or any other

confusingly similar design, in connection with the manufacture,

sale, advertisement or promotion of any product or any other

similar infringement of Plaintiff’s Design Patent rights, for

products not originating from Plaintiff or authorized by Plaintiff;

and



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d. From engaging in unfair competition by making and selling its

products or otherwise using confusingly similar marks and designs,

in such a way as to misrepresent the origin of any of the

Defendant’s products;

2.

For an order requiring Defendant to deliver and be impounded during the

pendency of this action all material in Defendant’s possession, custody or

control that include or incorporate products that infringe Plaintiff’s

Trademark rights, or Design Patent rights, including but not limited to,

any containers, packages, labels and advertisements in their possession or

under their control bearing any of Plaintiff’s Trademark or utilizingPlaintiff’s Design Patents, or any simulation, reproduction, counterfeit,

copy, or colorable imitation thereof ;

3. Directing that the Defendant report to this Court within thirty (30) days

after a Permanent Injunction is entered to show its compliance with

paragraphs 1 and 2 above;

4.

For compensatory damages in an amount to be proven at trial;

5.

For all gains, profits and advantages derived by Defendant by its

infringement of Plaintiff’s trademark rights and Design Patent rights;

6. For punitive damages in an amount sufficient to punish Defendant for its

wrongful conduct and to deter others from engaging in similar conduct in

the future;

7. For statutory damages as provided by law;

8. For permanent injunction against Defendant, preventing Defendant from

any future usage of any identical or similarly confusing marks related to

Plaintiff’s registered Trademark or Design Patents;



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9. Directing such other relief as the Court may deem appropriate to prevent

the trade and public, or individual members thereof, from gaining the

erroneous impression that the Plaintiff authorized or approved any

products manufactured, sold, or otherwise circulated or promoted by the

Defendant or that such products are in any way related to the Plaintiff ;

10. For a judgment declaring that this case is exceptional and awarding to

the Plaintiff from the Defendant, as a result of the Defendant’s sale of

Infringing Products bearing the Plaintiff’s Trademark or using Plaintiff’s

Design Patents, three times the Plaintiff’s damages and three times the

Defendant’s profits, after an accounting, or statutory damages, should thePlaintiff opt for such relief, consisting of Five Hundred Thousand Dollars

($500,000.00) for each of the Plaintiff’s Trademarks infringed upon by

the Defendant, and to the extent this Court concludes such infringement

was willful, Five Million Dollars ($5,000,000.00) for the Plaintiff’s

Trademark infringed upon by the Defendant pursuant to 15 U.S.C. §

1114 and § 1117;

11.

Awarding to the Plaintiff its reasonable attorneys’ fees and investigative

fees pursuant to 15 U.S.C. § 1117;

12. Awarding to the Plaintiff its costs in bringing this action; and

13. Awarding other such relief to the Plaintiff as this Court deems just.



112






113




EXHIBIT A



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99997

no 6

1d3057dd4df71842d9595419e18aa281eeb

c0af6

Warnings:

Information:



101925

no 4

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ce446

Warnings:

Information:


32064

no 2

1fb8019d925a6cd6d59ffa495e66ccc0a481

c142

Warnings:

Information:














the application.



116






117






118






119






120




EXHIBIT B



121




6/23/2014 SPT-2 | Spec-1 Racing WheelsSpec-1 Racing Wheels

http://spec1wheels.com/wheels/spec-1-trak/spt-2/ 1/3

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(http://www.flickr.com/photos/spec1wheels/13900773685/)

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15X8 4X100 4X114.3 20 73.1 GLOSS BL

SPT-2Spec-1 Racing Wheels has revolutionized the wheel industry with

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122




EXHIBIT C



123





19153988EFS ID:









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124





96124

no 5

08a853a3deb99279c42046f01ecab7a1c63

04fcd

Warnings:

Information:



105870

no 4

8b25767101bff978f0d240926024d4bd01cf

b6f7

Warnings:

Information:


32127

no 2

2ac872571722b0b5693775836ab433cfd8e

65b4f

Warnings:

Information:














the application.



125






126






127






128






129




EXHIBIT D



130




EXHIBIT E



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19154004EFS ID:









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96125

no 5

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2be16

Warnings:

Information:



100384

no 4

afe10f54305ef04f54b7ba4dc7ce27c80fe8d

548

Warnings:

Information:


32064

no 2

ff00f6727a8eebf74937a833506eca3d981b

3565

Warnings:

Information:














the application.



134






135






137






138




EXHIBIT F



139




6/23/2014 SPT-8 | Spec-1 Racing WheelsSpec-1 Racing Wheels

http://spec1wheels.com/wheels/spec-1-trak/spt-8/ 1/3

0Like Tweet 0



Size Bolt 1 Bolt 2 Offset Bore Color

15X8 4X100 4X114.3 20 73.1 GLOSS BL

SPT-8Spec-1 Racing Wheels has revolutionized the wheel industry with

futuristic designs. Precision cut Spec-1 Racing SPT-8 Wheels.

Available in Sizes:

15×8

Fin ishes:



(http://spec1wheels.com/wp-content/uploads/spt-8-website-

v2.jpg)

GET IN TOUCH

TAMPA: (813) 673 8393 | MIAMI: (305) 704 7623






140




EXHIBIT G



141





19154009EFS ID:









Filing Date:










Deposit Account

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142





96124

no 5

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86c03

Warnings:

Information:



101923

no 4

57fe6c8f46acfad6b4b44695b2b436592b9c

e48a

Warnings:

Information:


32011

no 2

41ad279f59940a41e576a21a5db28846c19

46de0

Warnings:

Information:














the application.



143






144






147




EXHIBIT H



148




6/23/2014 SP-8 | Spec-1 Racing WheelsSpec-1 Racing Wheels

http://spec1wheels.com/wheels/spec-1-racing/sp-8/ 1/3

0Like Tweet 0



Size Bolt 1 Offset Bore Color

18X8.5 BLANK 32 73.1 GLOSS BLACK MACHINED

18X8.5 5X114.3 35 73.1 GLOSS BLACK MACHINED


20X9 5X114.3 35 73.1 GLOSS BLACK MACHINED

20X9 BLANK 20 73.1 GLOSS BLACK MACHINED

20X10.5 5X114.3 40 73.1 GLOSS BLACK MACHINED


20X9 BLANK 32 73.1 GLOSS BLACK MACHINED


19X8.5 BLANK 32 73.1 GLOSS BLACK MACHINED20X10.5 BLANK 38 73.1 GLOSS BLACK MACHINED

SP-8Spec-1 Racing Wheels has revolutionized the wheel industry with

futuristic designs. Precision cut Spec- 1 Racing SP-8 Wheels.

Available in Sizes:

18×8.5, 18×9.5, 19×8.5, 19×9.5, 20×9, 20×10.5

Fin ishes:



(http://spec1wheels.com/wp-content/uploads/2014/04/spec-1_sp-

8y_20x9-1403-275-00-1000.jpg)

1

TAMPA: (813) 673 8393 | MIAMI: (305) 704 7623






149






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Volkswagen GTI on 18″ Spec-1 Racing SP-8 Concave Wheels (http://spec1wheels.com/volkswagen-gti-18-spec-1-racing-sp-8-concave-wheels/)Posted April 17, 2014

By Spec1Wheels (http://spec1wheels.com/author/admin/)

(http://spec1wheels.com/spec-1-racing-website-updated/)

Spec-1 Racing Website Updated! (http://spec1wheels.com/spec-1-racing-website-updated/)Posted April 17, 2014

By Spec1Wheels (http://spec1wheels.com/author/admin/)



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EXHIBIT I



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19154013EFS ID:









Filing Date:










Deposit Account

Authorized User

File Listing:

Document


File Size(Bytes)/

Message Digest

Multi

Part /.zip

Pages

(if appl.)



153





96126

no 5

88305c64b7812fe2d18495e4dc1324d6544

033e0

Warnings:

Information:



97695

no 4

d427a6b311159e6305845eeb26175e4593

193d84

Warnings:

Information:


32113

no 2

fe8e25f603a0bfb6281e5f531f7d1abd2c02a

6a9

Warnings:

Information:














the application.



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EXHIBIT J



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Size Bolt 1 Bolt 2 Offset BoreColor

17X7.5 5X114.3 38 73.1 GLOSS BLACK MACHIN

17X7.5 4X100 38 73.1 GLOSS BLACK MACHIN

17X7.5 4X114.3 38 73.1 GLOSS BLACK MACHIN

17X7.5 BLANK 38 73.1 GLOSS BLACK MACHIN

18X8 BLANK 35 73.1 GLOSS BLACK MACHIN

18X8 5X114.3 35 73.1 GLOSS BLACK MACHIN

18X9 BLANK 40 73.1 GLOSS BLACK MACHIN

SP-4Spec-1 Racing Wheels has revolutionized the wheel industry with

futuristic designs. Precision cut Spec- 1 Racing SP-4 Wheels.

Available in Sizes:

17×7.5, 18×8, 18×9

Fin ishes:

Gloss Black Machined, Gold Metal Lip


(http://spec1wheels.com/wp-content/uploads/2014/04/spec-1_sp-

4s_18x9-1403-262-00-1000.jpg)

TAMPA: (813) 673 8393 | MIAMI: (305) 704 7623






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Case 2:14-cv-05097-GW-AGR Document 1 Filed 07/01/14 Page 1 of 25 Page ID #:6

EXHIBIT IPage 1 of 25

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Case 2:14-cv-05172-ABC-JEM Document 1 Filed 07/03/14 Page 1 of 21 Page ID #:6

EXHIBIT JPage 1 of 21

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EXHIBIT K Page 1 of 3

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EXHIBIT K Page 2 of 3

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jat v. jnc - rule 11 motion

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