rawcar group v. grace medical et. al

7/30/2019 Rawcar Group v. Grace Medical et. al.

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Frank A. Angileri (MI BAR No. P45611)Thomas W. Cunningham (MI Bar No. P57899)Rebecca J. Cantor (MI Bar No. P76826)William E. Thomson, Jr. (SBN 47195)Roland J. Tong (SBN 216836)[email protected]

[email protected]@[email protected]@brookskushman.comBROOKS KUSHMAN P.C.1000 Town CenterTwenty Second FloorSouthfield, MI 48075Tel.: 248.358.4400Fax: 248.358.3351

Attorneys for PlaintiffRawCar Group LLC dbaCFI Medical Solutions

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

RAWCAR GROUP, LLC d/b/aCFI MEDICAL SOLUTIONS, aMichigan corporation,

Plaintiff,v.

GRACE MEDICAL, INC., aNevada corporation, PULSEMEDICAL, INC., a Georgiacorporation, PREFERREDMEDICAL PRODUCTS, aTennessee company, and A&BMEDICAL SPECIALTIES,

LLC, an Ohio company,Defendants.

Case No.

COMPLAINT FOR PATENT,TRADEMARK AND COPYRIGHTINFRINGEMENT

JURY TRIAL DEMANDED

'13CV1105 BLMAJB


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COMPLAINT FOR PATENT, TRADEMARK AND COPYRIGHTINFRINGEMENT AND JURY DEMAND

Plaintiff RawCar Group, LLC d/b/a CFI Medical Solutions (CFI Medical

Solutions) by and through their undersigned counsel, as and for its Complaintagainst defendants Grace Medical, Inc., Pulse Medical, Inc., Preferred Medical

Products and A&B Medical Specialties, LLC (collectively, Defendants),

respectfully alleges as follows:

I. PARTIES1. Plaintiff CFI Medical Solutions is a Michigan Corporation with its

principal place of business located at 14241 Fenton Rd, Fenton, MI 48430.

2. On information and belief, Defendant Grace Medical, Inc. (GraceMedical) is a Nevada corporation with its principal place of business located at

2620 S. Maryland Ave, # 849, Las Vegas, Nevada, 89109 and a registered office

address of 1135 Terminal Way Suite 209, Reno, Nevada. Grace Medical also has a

field office at 1380 Oak Hill Dr Spc 54, Escondido, California, 92027.

3. On information and belief, Defendant Pulse Medical, Inc. (PulseMedical) is a Georgia corporation with its principal place of business located at

1130 Ada Street Suite B, Blue Ridge, Georgia and a registered office address of

730 E Second St, Blue Ridge, Georgia.

4. On information and belief, Defendant Preferred Medical Products(Preferred Medical) is a Tennessee company with its principal place of business

located at 191 Industrial Dr., Ducktown, Tennessee.

5. On information and belief, Defendant A&B Medical Specialties, LLC(A&B Medical) is a purported Ohio company with its principal place of business

located at 760 Dancaster Dr., Maineville, Ohio.


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II. JURISDICTION AND VENUE6. This is an action for patent infringement arising under the patent laws

of the United States, title 35 of the United States, for trademark infringement in

violation of the Lanham Act of 1946, as amended, 15 U.S.C. 1125(a), and for

copyright infringement under the copyright laws of the United States, title 37 of

the United States.

7. The Court has subject matter jurisdiction over the claims hereinpursuant to U.S.C. 1331 and 1338(a). This Court also has supplemental

jurisdiction under 28 U.S.C. 1367(a) over CFI Medical Solutions state law

claims.

8. Venue and personal jurisdiction are appropriate in this Court under 28U.S.C. 1391(b) and 1400(b) because one or more defendants are located in this

District and/or have committed acts of infringement in this District, and because a

substantial part of the events and omissions giving rise to CFI Medical Solutions

claims occurred in this District.

III. FACTUAL BACKGROUNDA. CFI Medical Solutions Patent Rights

9. CFI Medical Solutions develops, manufactures and sells, inter alia,medical products including, but not limited to, sterile equipment covers, patient

positioning aids, radiation protection and rehabilitative aids.

10. On October 25, 2011, U.S. Patent No. 8,042,549 (hereinafter the549 patent) entitledSterile Radiological Drape was duly and lawfully issued to

Serge Kaska (Kaska). A true and correct copy of the 549 patent is attached as

Exhibit 1.


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11. Emerging Medical Technology is the owner by assignment of the 549patent. The assignment from Kaska to Emerging Medical Technology duly

executed on September 29, 2009.

12. CFI Medical Solutions is, and at all times relevant has been, theexclusive licensee of the 549 patent for the making, using and/or selling products

embodying the invention of the 549 patent in connection with the medical

industry.

13. On October 16, 2012, U.S. Patent No. 8,286,637 (hereinafter the637 patent) entitled Sterile Radiological Imaging Unit Drape and Method of

Providing a Sterile Surface Therewith was duly and lawfully issued to SergeKaska. The 637 patent is a continuation-in-part of the 549 patent. A true and

correct copy of the 637 patent is attached as Exhibit 2.

14. Emerging Medical Technology is the owner by assignment of the 637patent, duly executed on September 29, 2009.

15. CFI Medical Solutions is, and at all times relevant has been, theexclusive licensee of the 637 patent for the making, using and/or selling products

embodying the invention of the 637 patent in connection with the medical

industry.

16. CFI Medical Solutions manufactures, markets and sells C-ARMOR,a sterile equipment cover made under the 549 patent and the 637 patent.

17. CFI Medical Solutions sells its C-ARMOR product in the UnitedStates.

18. CFI Medical Solutions marked the products embodying the inventionclaimed in the 549 patent and the 637 patent in accordance with 35 U.S.C. 287.

B. CFI Medical Solutions Trademark Rights19. CFI Medical Solutions is the owner of all right, title and interest in

and to, including all rights to recover for past infringement thereof, and goodwill


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associated with, U.S. Trademark Registration No. 3,994,704 for the trademark C-

ARMOR, used in connection with, inter alia, sterile surgical drapes for use at

surgical sites, for covering patients on surgical tables, and for covering radiological

imaging equipment sold in interstate commerce, by virtue of an assignment from

trademark registrant Emerging Medical Technology, Inc. A true and correct copy

of the Trademark Registration No. 3,994,704 is attached hereto as Exhibit 3.

20. CFI Medical Solutions continuously uses the C-ARMOR trademarkin connection with the promotion, advertising, and sale of medical equipment

covers and other products and services and has since well before the acts of

Defendants complained herein.21. CFI Medical Solutions spends thousands of dollars and expends

significant effort in advertising, promoting, and developing the C-ARMOR

trademark throughout the world. As a result of such advertising expenditures, CFI

Medical Solutions established considerable goodwill in the C-ARMOR

trademark. The C-ARMOR trademark is a valuable asset of substantial worth to

CFI Medical Solutions.

C. CFI Medical Solutions Copyright22. On May 24, 2010, CFI Medical hired Digital Outpost to create a 2-3

minute video showing the benefits of the C-ARMOR product (the C-ARMOR

video). CFI Medical has since published the C-ARMOR video on its website.

CFI Medical has also made certain screenshots of the C-ARMOR video available

on its website (the C-ARMORphotos). Examples of two of the C-ARMOR

photos are shown below:


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23. The C-ARMOR video and the C-ARMOR photos were works madefor hire. CFI Medical Solutions is the owner if both the C-ARMOR video and the

C-ARMOR photos.

24. On April 29, 2013, CFI Medical filed copyright registrationapplications for the C-ARMOR

photos with the U.S. Copyright Office.

D. Defendants Common Activities (Facts Common to All Defendants)25. On information and belief, Defendants have made, used, sold, offered

for sale and/or imported in the United States, a product under the name C-SHIELD

lateral C-Arm drape.

26. The C-SHIELD lateral C-Arm drape incorporates the patentedinvention claimed in the 549 patent.

27. The C-SHIELD lateral C-Arm drape incorporates the patentedinvention claimed in the 637 patent.

28. CFI Medical Solutions gave notice to Defendants that medicalequipment covers made and sold under the 549 patent and the 637 patent are

patented by marking such products in accordance with the provisions of 35 U.S.C.

287 and/or by giving direct notice of infringement to Defendants.

29. On information and belief, CFI Medical Solutions gave verbal noticeto Grace Medical of infringement of its licensed patents through the

manufacturing, marketing and sale of Defendants C-SHIELD lateral C-Arm

drape.


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30. On information and belief, Defendants have used, and continue to use,a mark confusingly similar to the C-ARMOR trademark to advertise and sell its

products, namely the C-SHIELD lateral C-Arm drape, throughout the United

States.

31. Defendants did not and do not have consent, license, approval or otherauthorization to use marks confusingly similar to the C-ARMOR trademark in

the manner set forth herein.

32. Defendants use of marks confusingly similar to the C-ARMORtrademark as alleged in the foregoing paragraphs clearly shows the willful intent of

Defendants to misrepresent the source of Defendants goods so as to causeconfusion, mistake orto deceive as to Defendants connection or association with

CFI Medical Solutions.

E. Defendant Grace Medical, Inc.s Activities33. On information and belief, Grace Medical is a nationwide supplier of

medical products, supplies and devices used in the operating room, radiology,

catheterization laboratories, endoscopy suites, doctors offices and surgery centers.

34. On information and belief, Grace Medical is a nationwide supplier ofthe C-SHIELD lateral C-Arm drape.

35. On information and belief, Grace Medical attended the Association ofperiOperative Registered Nurses (AORN) trade show held from March 2, 2013

to March 7, 2013 in San Diego, California.

36. On information and belief, Grace Medical exhibited medical products,including C-SHIELD lateral C-Arm drape, at the AORN trade show.

37. On information and belief, Grace Medical acted in concert with PulseMedical to exhibit medical products at a booth at the AORN trade show rented by

the David Scott Company.


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38. On information and belief, Grace Medical displayed the C-SHIELDlateral C-Arm drape at the AORN trade show.

39. On information and belief, Grace Medical disseminated advertisementmaterials, including flyers, for the C-SHIELD lateral C-Arm drape at the AORN

trade show.

40. On March 5, 2013, Gilbert Sierra, President and Chief ExecutiveOfficer of Grace Medical, sent communications regarding the alleged infringement

of its C-SHIELD lateral C-Arm drape to John Lochner, a CFI Medical Solutions

employee, and to Dr. Serge Kaska, President of Emerging Medical Technology

and the inventor of the 549 and 637 patents.41. On March 9, 2013, Gilbert Sierra sent e-mail correspondence

regarding the alleged infringement of its C-SHIELD lateral C-Arm drape to Mike

Czop, President of CFI Medical Solutions, and to Dr. Serge Kaska.

F. Defendant Pulse Medical, Inc.s Activities42. On information and belief, Pulse Medical is a supplier of radiation

protection and x-ray accessories specializing in leaded aprons and leaded eyewear.

43. On information and belief, Pulse Medical is a supplier of the C-SHIELD lateral C-Arm drape.

44. On information and belief, Defendant Pulse Medical attended theAORN trade show held from March 2, 2013 to March March 7, 2013 in San

Diego, California.

45. On information and belief, Pulse Medical exhibited medical products,including the C-SHIELD lateral C-Arm drape, at the AORN trade show.

46. On information and belief, Pulse Medical acted in concert with GraceMedical to exhibit medical products at the AORN trade show.

47. On information and belief, Pulse Medical and Grace Medical acted inconcert to display the C-SHIELD lateral C-Arm drape at the AORN trade show.


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48. On information and belief, Pulse Medical disseminated advertisementmaterials, including flyers, for the C-SHIELD lateral C-Arm drape at the AORN

trade show.

G. Defendant Preferred Medical Products Activities49. On information and belief, Preferred Medical is a manufacturer of

sterile and non-sterile equipment covers to the medical industry.

50. On information and belief, Preferred Medical is a marketer,manufacturer and distributor of the C-SHIELD lateral C-Arm drape and does so

nationwide, including in this District.

51. Upon information and belief, Preferred Medical manufactures the C-SHIELD lateral C-Arm drape that is supplied by Grace Medical, Pulse Medical

and A&B Medical.

52. On information and belief, on or before February 12, 2013, DefendantPreferred Medical began manufacturing, marketing and/or distributing the C-

SHIELD lateral C-Arm drape as evidenced by video on Youtube.com at

http://www.youtube.com/watch?v=6tpV2qMWmlI.

H. Defendant A&B Medical Specialties Activities53. On information and belief, A&B Medical is a supplier of medical

products.

54. On information and belief, A&B Medical is a supplier of the C-SHIELD lateral C-Arm drape as advertised on its websitehttp://www.abmedspecialties.com/NEW-PRODUCTS.html.

55. On information and belief, A&B Medical has copied and publishedthe C-ARMOR photos for the purpose of advertising its C-SHIELD lateral C-

Arm drape. Examples of the photos copied by A&B Medical are shown below:


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56. The photos that A&B Medical has copied and published aresubstantially similar to the C-ARMOR photos.

57. Because the C-ARMOR photos were published on CFI Medicalswebsite, A&B Medical had access to the C-ARMOR photos.

58. On information and belief, A&B Medical has sales representativeslocated in Northern and Southern California.

IV. COUNT I:INFRINGEMENT OF U.S. PATENT NO. 8,042,549

(Alleged against All Defendants)

59. CFI Medical Solutions repeats and realleges the allegations of thepreceding paragraphs as of set forth herein.

60. Pursuant to 35 U.S.C. 282, the 549 patent is presumed valid.61. Defendants have infringed and continue to infringe, directly,

contributorily or by inducement, one or more claims of the 549 patent by making,

using, selling, and/or offering to sell in this country, without a license, the C-

SHIELD lateral C-Arm drape, in violation of 35 U.S.C. 271.62. On information and belief, Defendants infringement of the 549

patent has been and continues to be willful and carried out with full knowledge of

the 549 patent.


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63. By reason of Defendants infringing activities, CFI Medical Solutionshas been and will continue to be damaged by Defendants infringement of the 549

patent.

64. CFI Medical Solutions has been irreparably harmed by Defendantsinfringement of the 549 patent. CFI Medical Solutions will continue to be

irreparably harmed unless that infringement is enjoined.


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V. COUNT IIINFRINGEMENT OF U.S. PATENT NO. 8,286,637

(Alleged against All Defendants)65. CFI Medical Solutions repeats and realleges the allegations of the

preceding paragraphs as of set forth herein.

66. Pursuant to 35 U.S.C. 282, the 637 patent is presumed valid.67. Defendants have infringed and continue to infringe, directly,

contributorily or by inducement, one or more claims of the 637 patent by making,

using, selling, and/or offering to sell in this country, without a license, the C-

SHIELD lateral C-Arm drape, in violation of 35 U.S.C. 271.

68. On information and belief, Defendants infringement of the 637patent has been and continues to be willful and carried out with full knowledge of

the 637 patent.

69. By reason of Defendants infringing activities, CFI Medical Solutionshas been and will continue to be damaged by Defendants infringement of the 637

patent.

70. CFI Medical Solutions has been irreparably harmed by Defendantsinfringement of the 637 patent. CFI Medical Solutions will continue to be

irreparably harmed unless that infringement is enjoined.


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VI. COUNT IIITRADEMARK INFRINGEMENT



72. Defendants wrongful use of the name C-SHIELD infringes CFIMedical Solutions registered trademark C-ARMOR and is likely to cause

confusion, mistake and deception of the public as to the identity and origin of

Defendants goods, causing irreparable harm to CFI Medical Solutions for which

there is no adequate remedy at law.

73. By reason of the foregoing acts, Defendants are liable to CFI MedicalSolutions for trademark infringement under 15 U.S.C. 1114 and 1125(a).


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VII. COUNT IVCOPYRIGHT INFRINGEMENT UNDER 17 U.S.C. 501

(Alleged against Defendant A&B Medical)


75. CFI Medical has complied with all aspects of the law of copyright,and secured the exclusive rights and privileges in the copyrights for the C-

ARMOR photos, including filing an application for registration with the

Copyright Office.

76. Defendant A&B Medical has infringed upon the copyrights for the C-ARMOR photos under 17 U.S.C. 501 through copying and displaying the C-

ARMOR photos.

77. On information and belief, the infringement by A&B Medical hasbeen willful.

78. The acts by A&B Medical will continue and will cause irreparableharm to CFI Medical unless restrained by the Court. There is no adequate remedy

at law to compensate for the continued harm.

79. By reason of the foregoing acts, A&B Medical is liable to CFIMedical Solutions for copyright infringement under 17 U.S.C. 501.


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VIII. COUNT VSTATUTORY UNFAIR COMPETITION AND FALSE ADVERTISING

UNDER CALIFORNIA STATE LAW(Alleged against All Defendants)


81. Defendants actions described above and specifically, withoutlimitation, Defendants use of the C-ARMOR trademark, and confusingly similar

variations thereof, in commerce to advertise, market, and sell the C-SHIELD

lateral C-Arm drape constitute trademark infringement, false advertising, and

unfair competition in violation of the laws of the State of California.

82. By these actions, Defendants engaged in false advertising and unfaircompetition in violation of the statutory law of the state of California, Cal. Bus. &

Prof. Code 17200 and 17500, et seq., and, as a result, CFI Medical Solutions

has suffered and will continue to suffer damage to its business, reputation, and

goodwill.

83. As a direct and proximate result of Defendants willful and intentionalactions, CFI Medical Solutions has suffered damages and, unless Defendants are

enjoined, CFI Medical Solutions will continue to suffer irreparable damage.


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IX. COUNT VICOMMON LAW INJURY TO BUSINESS REPUTATION



85. CFI Medical Solutions alleges that Defendants wrongful use of CFIMedical Solutions trademark inures to and creates a likelihood of injury to CFI

Medical Solutions business reputation because persons encountering CFI Medical

Solutions and its products and services will believe that CFI Medical Solutions is

affiliated with or related to or has the approval of Defendants, and any adverse

reaction by the public to Defendants and the quality of its products and the nature

of its business will injure the business reputation of CFI Medical Solutions and the

goodwill that it enjoys in connection with its mark C-ARMOR.


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PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests the following relief:

a. A judgment that Defendants infringed the 549 patent;

b. A judgment that Defendants infringed the 637 patent;

c. A preliminary and permanent injunction, issued pursuant to 35 U.S.C.

283, restraining and enjoining Defendants and their officers, agents, attorneys and

employees, and those acting in privity or concert with them, from infringing the 549

patent for the full term thereof;

d. A preliminary and permanent injunction, issued pursuant to 35 U.S.C.

283, restraining and enjoining Defendants and their officers, agents, attorneys and

employees, and those acting in privity or concert with them, from infringing the 637

patent for the full term thereof;

e. A declaration that this is an exceptional case and an award of attorneys

fees, disbursements, and costs of this action pursuant to 35 U.S.C. 285;

f. A judgment that Defendants infringed the C-ARMOR mark;

g. A preliminary and permanent injunction, issued pursuant to 15 U.S.C.

1116(a), restraining and enjoining Defendants and their officer, agents, attorneys and

employees, and those acting in privity or concert with them, from infringing the C-

ARMOR mark;

h. An order requiring Defendants to deliver up for destruction or other

disposition by Plaintiff all advertisements, brochures, labels, packaging, signs, prints,

decals, business cards, order forms, and all other materials in Defendants possession,


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custody, or control that are labeled with C-SHIELD, alone or in combination with

other words pursuant to 15 U.S.C. 1118;

i. A judgment that Defendants be required to pay damages pursuant to 15

U.S.C. 1117(a), including Defendants profits, damages that Plaintiff has sustained

as a result of Defendants trademark infringement, and the costs of this action;

j. A declaration that this is an exceptional case and an award of attorneys

fees pursuant to 15 U.S.C. 1117(a);

k. A judgment that A&B Medical has infringed Plaintiffs copyrights;

l. An award of statutory damages against A&B Medical under 17 U.S.C.

504(c), and costs, including attorneys fees, under 17 U.S.C. 505;

m. A declaration that this case is an exceptional case and an award of

attorneys fees pursuant to 17 U.S.C. 1117(a);

n. A preliminary and permanent injunction, issued pursuant to 17 U.S.C.

502(a), restraining and enjoining A&B Medical and its officer, agents, attorneys and

employees, and those acting in privity or concert with them, from infringing

Plaintiffs copyrights;

o. A judgment that Defendants conduct constitutes unfair competition and

false advertising under Cal. Bus. & Prof. Code 17200 and 17500, et seq.;

p. A preliminary and permanent injunction, issued pursuant to Cal. Bus. &

Prof. Code 17203, restraining and enjoining Defendants and their officer, agents,


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attorneys and employees, and those acting in privity or concert with them, from

committing acts of unfair competition and false advertising; and

q. Such other and further relief as the Court may deem just and proper.

Dated: May 8, 2013 Respectfully submitted,

By: /s/ William E. Thomson, Jr.Frank A. Angileri (MI BAR No. P45611)Thomas W. Cunningham (MI Bar No. P57899)Rebecca J. Cantor (MI Bar No. P76826)William E. Thomson, Jr. SBN 47195)Roland J. Tong (SBN 216836)

[email protected]@[email protected]@[email protected] KUSHMAN P.C.1000 Town CenterTwenty Second FloorSouthfield, MI 48075Tel.: 248.358.4400 / Fax: 248.358.3351

Attorneys for Plaintiff

rawcar group v. grace medical et. al

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