miller mfg. v. harris farms - complaint

7/30/2019 Miller Mfg. v. Harris Farms - Complaint

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UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

MILLER MANUFACTURING

COMPANY, Plaintiff,

v.

HARRIS FARMS, LLC,

Defendant.

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Court File No.

COMPLAINT

(Jury Trial Demanded)

NATURE OF THE CASE

This is a case for design patent infringement under the United States Patent Act and for

violations of the United States Lanham Act. Millers claims arise from Harris Farms infringing,

deceptive and unlawful conduct in the launch of a knockoff product as depicted in Exhibit C.

THE PARTIES

1. Plaintiff Miller Manufacturing Company (Miller) is a Minnesota corporation

having its principal place of business at 2910 Waters Road, Suite 150, Eagan, MN 55121. Miller

is a manufacturer and international distributor of farm, ranch and pet products. Its products are

sold through distributors that serve retailers of farm and ranch products in the USA, Canada and

over 35 countries around the world.

2. Defendant Harris Farms, LLC is a Tennessee corporation, having its principal

place of business at 7227 Haley Industrial Drive, Suite 200, Nolensville, TN 37135-9618.

Harris Farms is a direct competitor in the farm, ranch and pet product industry.

JURISDICTION AND VENUE

3. This Court has original jurisdiction over the Patent Act and Lanham Act claims

pursuant to 15 U.S.C. 1121(a), 28 U.S.C. 1331 and 1338(a) and pendent and supplemental

CASE 0:13-cv-02339 Document 1 Filed 08/26/13 Page 1 of 5


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jurisdiction over the state law claims under 28 U.S.C. 1338(b) and 1367 in that such claims

are joined with substantial and related claims under the Trademark Laws of the United States, 15

U.S.C. 1050 et seq.

4. Venue is proper in this district under 28 U.S.C. 1391. Harris Farms has

marketed its product, and solicited clients throughout the United States, including the District of

Minnesota. For example, Harris Farms attended a Mid-States Distributing Company Farm Show

on August 24 - 27, 2013 at the Minneapolis Convention Center, located at 1301 Second Avenue

South, Minneapolis, MN 55403 for the purpose of advertising and selling its knockoff products.

FACTS

5. For well over 70 years, Miller Manufacturing has been the leading designer,

manufacturer, and marketer of supplies and equipment for farm use.

6. Miller is the owner by assignment of United States Design Patent No, D650,534,

as issued on December 13, 2011 (the 534 Patent). A true and correct copy is attached to this

Complaint as Exhibit A.

7. Miller makes and sells a Nesting Box, through a network of distributors to

distribute their products throughout the United States. A true and correct depiction of the Miller

Nesting Box product is shown in the attached Exhibit B.

8. The Harris Farms confusingly similar, knockoff product was discovered in

August 2013, when Millers representatives attended the Mid-States Distributing Company Farm

Show. The knockoff product appears in a picture taken at the Show, in the attached Exhibit C.

9. By making, using, offering for sale and/or selling the knockoff product, Harris

Farms has infringed and continues to infringe the 534 Patent.

10. At the Mid-States Distributing Company Farm Show, Miller representatives have

fielded questions and comments demonstrating confusion over the source of the Harris Farms



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product. In particular, a Miller representative was asked: When did Miller start supplying Harris

Farms with its new nest box? A Miller representative was also asked about any affiliation, as the

Harris Farms knockoff product had ripped off the Miller Nest Box design in every detail.

CLAIM I

INFRINGEMENT OF 534 PATENT 35 U.S.C. 281 and 35 U.S.C. 271

11. Miller repeats the allegations of paragraphs 1-10 of this Complaint.

12. Harris Farms has infringed and continues to infringe the 534 Patent.

CLAIM II

FEDERAL TRADE DRESS INFRINGEMENT 15 U.S.C. 1125

13. Miller repeats the allegations of paragraphs 112 of this Complaint.

14. Miller owns rights to the trade dress associated with its Nesting Box.

15. Harris Farms use of Millers trade dress has caused and is likely to continue to

cause confusion among the relevant public as to source, sponsorship, origin or affiliation.

16. Harris Farms use of Millers trade dress constitutes infringement of Millers

rights in violation of 15 U.S.C. 1125.

17. Unless enjoined by this Court, Harris Farms infringing conduct will continue to

cause irreparable injury and other damage to Millers business, reputation and goodwill. Miller

has no adequate remedy at law.

18. Pursuant to 15 U.S.C. 1117, Plaintiff is entitled to recover its damages, including

lost profits, Millers profits, and the costs of this action. This intentional nature of Harris Farms

unlawful acts render this case exceptional, entitling Miller to an award of attorneys fees under

15 U.S.C. 1117(a).



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CLAIM III

COMMON LAW UNFAIR COMPETITION

19. Miller repeats the allegations of paragraphs 1-18 of this Complaint.

20. Harris Farms conduct constitutes unfair competition in violation of Millers

rights.

21. Harris Farms acts were taken in willful, deliberate and/or intentional disregard of

Millers rights.

22. As a direct and proximate result of this unfair competition, Miller has suffered

and will continue to suffer irreparable harm if Harris Farms is not enjoined.

JURY DEMAND

Plaintiff respectfully requests a jury trial for this matter.

PRAYER FOR RELIEF

WHEREFORE, the Plaintiff prays that the Court enter an order:

A. Preliminarily and permanently enjoining and restraining Harris Farms, its

directors, members, officers, agents, servants, employees, subsidiaries, affiliates, and all persons

in active concert or participation with, through, or under it, at first during the pendency of this

action and thereafter perpetually from committing any acts of design patent infringement,

trademark infringement, unfair competition, deceptive and unlawful trade practices;

B. Ordering seizure of the Harris Farms knockoff product as depicted in Exhibit C;

C. Making an award of all damages and items recoverable under any applicable

provision of law, including but not limited to, 15 U.S.C. 1117, 35 U.S.C. 284, 285 and/or 35

U.S.C. 289 which shall include (1) Harris Farms profits based on the aforementioned unlawful



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conduct and diverted sales; (2) Millers damages; (3) the costs of this action; and (4) Millers

attorneys fees.

D. Awarding Miller such other relief as the Court may deem just and proper.

MILLER MANUFACTURING COMPANY

Date: August 26, 2013 By Counsel

s/Kristine M. Boylan_______________________

Kristine M. Boylan (MN Reg. No. 284,634)Nisha Patel (MN Reg. No. 392,954)

MERCHANT & GOULD P.C.80 South Eighth Street, Suite 3200

Minneapolis, Minnesota 55402-2215Telephone: 612.332.5300

Facsimile: 612.332.9081



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EXHIBIT A

CASE 0:13-cv-02339 Document 1-1 Filed 08/26/13 Page 1 of 13


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USO0D650534S

( 1 2 ) United States Design Patent ( 1 0 ) P a t e n t N 0 . : US D 6 5 0 , 5 3 4 SBormann ( 4 5 ) Date o f P a t e n t : 4 * D e c . 1 3 , 2011

(54) POULTRYNESTINGBOX D222,365 s * 10/1971 Abrens . . . . . . . . . . . . . . . . . . . . . . . . 1330/113D288,733 S * 3/1987 Welker . . . . . . . . . . . . D3O/108

*( 7 5 ) I n v e n t o r : Shawn M. Bormann, utchinson, MN 7349318 B2 1 2 / 2 0 1 0 Matsuo e t a 1 """"""" 1 1 9 / 1 6 6( U S ) OTHER UBLICATIONS

( 7 3 ) A s s i g n e e : M i l l e r M a n u f a c t u r i n g Company, n c . , P h o t o g r a p h o f E Z C O O P S i n g l e N e s t i n g B O X u n d a t e d E a g a n : MN U s ) * c i t e d by e x a m i n e r

( M ) Term? 14 Years Primary Examiner* . Chas e NelsonAssistant Examiner*niaAman

( 2 1 ) A p p l ' NO " 2 9 / 3 9 3 , 4 7 2 ( 7 4 ) A t t o r n e y , A g e n t , o r Firm* ames W. M i l l e r

( 5 1 ) LOC 9 ) C 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30-02 Th e Ornamental d e s i g n f o r a p o u l t r y n e s t i n g b o x , a s shoWn(52) US. l. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D30/110 a nd described.(58) Field of Classi?cation Search . . . . . . . . . D30 /108*120, DESCRIPTIOND 3 0 / 1 6 1 ; 1 1 9 / 2 8 5 , 1 6 1 4 1 7 0 , 4 8 2 , 4 9 6 4 4 9 9 ,1 1 9 / 5 0 2 , 5 1 2 4 5 1 3 , 7 1 2 , 4 1 6 , 4 3 7 , 4 4 5 , 4 5 2 ,1 1 9 / 4 5 3 4 5 5 F I G . 1 i s a p e r s p e c t i v e V i e W o f a p o u l t r y n e s t i n g box s h o w i n g

See lication ? le fo r com lete search histo . my ew esign; . . . . .pp P W FIG. 2 1 s a f r o n t e l e v a t l o n a l V1eW of h e des1gn 1 l l u s t r a t e d 1 n(56) References Cited FIG 1; _ _ _ _ _ _ _FIG. 3 1 s a nght e l e v a t l o n a l V1eW of h e d e s 1 g n 1 l l u s t r a t ed 1 n

U.S. PATENTDOCUMENTS FIG- 1 ;_ _ _ _ _ _6 8 0 , 8 2 1 A 8 / 1 9 0 1 T r e m e r e 1 1 1 s a l e f t e l e v a t i o n a l V 1 e W o f t h e d e s 1 g n 1 l l u s t r a t e d 1 n

1,435,497 A 11/1922 Purdy ~ > _ _ _ _ _1 , 5 1 9 , 5 1 8 A 1 2 / 1 9 2 4 T h o r p @ 1 3 1 , F I G . 5 1 s a t o p V1eW o f t h e d e s 1 g n 1 l l u s t r a t e d 1 n F I G . 1 ; a n d ,1 , 8 0 7 , 2 5 3 A 5 / 1 9 3 1 P e t e r s o n F I G . 6 i s a bottom VieW ofthe d e s i g n i l l u s t r a t e d i n F I G . 1 .1 , 8 2 7 , 9 4 4 A 1 0 / 1 9 3 1 K r o g s t a d Th e broken l i n e shoWing i n F I G . 1 o f a c h i c k e n and some1,923,980 A 8/1933 Hultlne - . . . . . .- n e s t 1 n g s t r a W 1 n s 1 d e t h e n e s t 1 n g box i s f o r i l l u s t r a t i v e pu r2,l 7 4,326 A 9 / 1 9 3 9 Lelbenguth _ _2 , 2 6 6 , 6 8 5 A 1 2 / 1 9 4 1 D a d l o w p o s e s o n l y and f o r m s no p a r t o f t h e c l a i m e d d e s 1 g n .2 , 7 2 8 , 3 2 4 A 1 2 / 1 9 5 5 R a d o c y2 , 8 9 2 , 4 4 7 A 6 / 1 9 5 9 Keen t a 1 . 1 Claim, 6 Drawing S h e e t s



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US. Patent D e c . 1 3 , 2 0 1 1 S h e e t 1 o f 6 US 650,534 S

T111511



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F15.4



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EXHIBIT B



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EXHIBIT C



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S 44 (Rev. 12/12) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, excep

rovided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for theurpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

. (a) PLAINTIFFS DEFENDANTSMILLER MANUFACTURING COMPANY Harris Farms, LLC

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

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

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)Kristine M. Boylan, Merchant & Gould P.C., 80 South Eighth Street, Suite 3200Minneapolis, MN 55402-2215; (612)332-5300; [email protected]

I. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plai(For Diversity Cases Only) and One Box for Defendan

1 U.S. Government 3 Federal Question PTF DEF PTF DPlaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated orPrincipal Place 4

of Business In This State

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

Citizen or Subject of a 3 3 Foreign Nation 6

Foreign Country

V. NATURE OF SUIT (Place an X in One Box Only)

CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act

120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 400 State Reapportionm

130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 410 Antitrust

140 Negotiable Instrument Liability 367 Health Care/ 430 Banks and Banking

150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 450 Commerce

& Enforcement of Judgment Slander Personal Injury 820 Copyrights 460 Deportation

151 Medicare Act 330 Federal Employers Product Liability 830 Patent 470 Racketeer Influence

152 Recovery of Defaulted Liability 368 Asbestos Personal 840 Trademark Corrupt Organizatio

Student Loans 340 Marine Injury Product 480 Consumer Credit

(Excludes Veterans) 345 Marine Product Liability LABOR SOCIAL SECURITY 490 Cable/Sat TV

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

160 Stockholders Suits 355 Motor Vehicle 371 Truth in Lending 720 Labor/Management 863 DIWC/DIWW (405(g)) 890 Other Statutory Act

190 Other Contract Product Liability 380 Other Personal Relations 864 SSID Title XVI 891 Agricultural Acts

195 Contract Product Liability 360 Other Personal Property Damage 740 Railway Labor Act 865 RSI (405(g)) 893 Environmental Mat

196 Franchise Injury 385 Property Damage 751 Family and Medical 895 Freedom of Informa362 Personal Injury - Product Liability Leave Act Act

Medical Malpractice 790 Other Labor Litigation 896 ArbitrationREAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 791 Employee Retirement FEDERAL TAX SUITS 899 Administrative Proc

210 Land Condemnation 440 Other Civil Rights Habeas Corpus: Income Security Act 870 Taxes (U.S. Plaintiff Act/Review or App

220 Foreclosure 441 Voting 463 Alien Detainee or Defendant) Agency Decision

230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 871 IRSThird Party 950 Constitutionality of

240 Torts to Land 443 Housing/ Sentence 26 USC 7609 State Statutes

245 Tort Product Liability Accommodations 530 General

290 All Other Real Property 445 Amer. w/Disabilities 535 Death Penalty IMMIGRATION

Employment Other: 462 Naturalization Application

446 Amer. w/Disabilities 540 Mandamus & Other 465 Other Immigration

Other 550 Civil Rights Actions

448 Education 555 Prison Condition

560 Civil Detainee -

Conditions of

Confinement

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

Another District(specify)

1 Original

Proceeding

2 Removed from

State Court

3 Remanded from

Appellate Court

4 Reinstated or

Reopened

5 6 Multidistrict

Litigation

VI. CAUSE OF

ACTION

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):Lanham Act, 15 U.S.C. 1051 et seq; 35 U.S.C. 281

Brief description of cause:Design Patent Infringement

VII. REQUESTED IN

COMPLAINT:CHECK IF THIS IS A CLASS ACTION

UNDER RULE 23, F.R.Cv.P.

DEMAND $ CHECK YES only if demanded in complaint

JURY DEMAND: Yes No

VIII. RELATED CASE(S)

IF ANY (See instructions): JUDGE DOCKET NUMBER

DATE SIGNATURE OF ATTORNEY OF RECORD

08/26/2013 s/ Kristine M. Boylan

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE



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JS 44 Reverse (Rev. 12/12)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers asrequired by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, isrequired for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk o

Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

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

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

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

noting in this section "(see attachment)".

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

United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included herUnited States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendto the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code ta

precedence, and box 1 or 2 should be marked.Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, thcitizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversitycases.)

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

IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI belowsufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more

than one nature of suit, select the most definitive.

V. Origin. Place an "X" in one of the six boxes.Original Proceedings. (1) Cases which originate in the United States district courts.Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.

When the petition for removal is granted, check this box.Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the fdate.Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.

Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfersmultidistrict litigation transfers.Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 14When this box is checked, do not check (5) above.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictistatutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

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

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


miller mfg. v. harris farms - complaint

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