United States District Court Northern District of Indiana Fort Wayne Division
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case 1:04-cv-00436-TLS-RBC document 51 filed 09/06/05 page 1 of 30 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION TIPPMANN SPORTS, LLC ) (f/k/a TIPPMANN PNEUMATICS, LLC) ) and CHEROKEE AIR PRODUCTS, INC. ) (f/k/a TIPPMANN PNEUMATICS, INC.), ) ) Plaintiffs, ) ) vs. ) Civil Action No. 1:04cv436 ) BT PAINTBALL DESIGNS, INC., ) JURY TRIAL DEMANDED f/k/a BEN TIPPMANN ENTERPRISES, ) LTD., BENJAMIN R. TIPPMANN, and ) NATIONAL PAINTBALL SUPPLY, ) INC., ) ) Defendants. ) PLAINTIFFS’ FIRST AMENDED COMPLAINT Tippmann Sports, LLC f/k/a Tippmann Pneumatics, LLC (“Tippmann”) and Cherokee Air Products, Inc. f/k/a Tippmann Pneumatics, Inc. (“Cherokee”), by counsel, and for their Complaint against the Defendants, BT Paintball Designs, Inc. (“BT”) f/k/a Ben Tippmann Enterprises, Ltd., Benjamin R. Tippmann, and National Paintball Supply, Inc. (“National Paintball”) file their “First Amended Complaint” and allege and state: THE PARTIES 1. Tippmann is a limited liability company organized under the laws of Delaware. Tippmann has its principal place of business in Fort Wayne, Indiana. Tippmann was formed in June 16, 2004. Tippmann Sports, LLC was formerly known as Tippmann Pneumatics, LLC and changed its name to Tippmann Sports, LLC on or about August 31, 2004. case 1:04-cv-00436-TLS-RBC document 51 filed 09/06/05 page 2 of 30 2. Cherokee is a corporation organized and existing under the laws of Indiana. Cherokee has its principal place of business in Fort Wayne, Indiana. Cherokee was formerly Tippmann Pneumatics, Inc. Cherokee is a substantial owner of Tippmann. Tippmann Pneumatics, Inc. changed its name to Cherokee Air Products, Inc. on or about July 22, 2004. 3. Upon information and belief, BT is a corporation organized under the laws of Indiana and has its principal place of business in Fort Wayne, Indiana. Prior to April 21, 2004, BT was known as Ben Tippmann Enterprises, Ltd. 4. Upon information and belief, BT conducts business in this judicial district through the marketing and sale of its products. BT is a direct competitor of Tippmann. 5. Benjamin R. Tippmann is an Indiana citizen residing at 9837 St. Joe Road, Fort Wayne, Indiana. Benjamin R. Tippmann is the owner of and is employed by BT. Upon information and belief, Benjamin R. Tippmann is the exclusive owner of BT, and BT is the alter ego of Benjamin R. Tippmann. Upon information and belief, Benjamin R. Tippmann directs and participates in the actions of BT. Prior to working for BT, Benjamin R. Tippmann was an employee of Tippmann Pneumatics, Inc. n/k/a Cherokee. 6. Upon information and belief, National Paintball is a corporation organized under the laws of Delaware and has its principal place of business in Sewell, New Jersey. 7. Upon information and belief, National Paintball conducts business in this judicial district through the marketing and sale of products. Among other things, National Paintball manufactures, imports, sells, and/or offers to sell products to BT that infringe Tippmann’s intellectual property. By so doing, National Paintball is competing with Tippmann. -2- case 1:04-cv-00436-TLS-RBC document 51 filed 09/06/05 page 3 of 30 8. National Paintball’s website provides it has dealers located in Indiana and this judicial district. Materials from National Paintball’s website regarding (among other things) its Indiana dealers are attached as Exhibit 5. JURISDICTION AND VENUE 9. This action arises under the patent laws of the United States pursuant to 35 U.S.C. §1, et seq., trademark and unfair competition laws of the United States pursuant to 15 U.S.C. §1051 et seq., Indiana statutory law, and the Indiana common law. 10. This Court has jurisdiction over the subject matter of this case pursuant to 15 U.S.C. §1121, 28 U.S.C. §§1331 and 1338, and supplemental jurisdiction pursuant to 28 U.S.C. §1367. 11. Venue is proper in this district pursuant to 28 U.S.C. §1391(b) and §1400(b). ALLEGATIONS COMMON TO ALL COUNTS The Business of Tippmann and Cherokee 12. For almost 20 years, Tippmann and Cherokee f/k/a Tippmann Pneumatics, Inc. have manufactured high quality paintball equipment, parts and accessories. Prior to June 17, 2004, Cherokee (f/k/a Tippmann Pneumatics, Inc.) manufactured and sold these products. On June 17, 2004, Cherokee completed a UNIT Purchase and Redemption Agreement that resulted in transferring its business intellectual property and the goodwill associated therewith, to Tippmann. Since that time, Tippmann manufactures and sells paintball equipment, parts, and accessories. 13. Tippmann’s products are sold through a wide network of dealers throughout the United States and its products are well known and highly desirable in the paintball industry. Tippmann’s products are also well known and highly desirable to consumers. Defendant National Paintball has been a distributor of Tippmann’s products for several years. -3- case 1:04-cv-00436-TLS-RBC document 51 filed 09/06/05 page 4 of 30 14. To protect its intellectual property, goodwill, and name recognition, Tippmann has various patents and trademarks. Tippmann's Patents A. U.S. Patent No. 4,819,609. 15. On April 11, 1989, United States Patent No. 4,819,609 (the “’609 Patent”), entitled “Automatic Feed Marking Pellet Gun,” was duly and legally issued to Dennis J. Tippmann. The ’609 Patent was subsequently assigned to Tippmann on or about June 17, 2004. A copy of the '609 Patent is attached as Exhibit 1. 16. The ’609 Patent relates to a compressed gas power marking gun for the firing of pellets and similar projectiles (i.e. paintballs) that are spherical and sufficiently fragile so as to break upon impact. 17. Since June 17, 2004, Tippmann has and is still the owner by assignment of the entire right, title, and interest in and to the ’609 Patent. B. U.S. Patent No. 5,383,442. 18. On January 24, 1995, U.S. Patent No. 5,383,442 (the “’442 Patent”) entitled “Pump Action Marking Pellet Gun” was duly and legally issued to Dennis J. Tippmann. The ’442 was subsequently assigned to Tippmann on or about June 17, 2004. A copy of the ’442 Patent is attached as Exhibit 2. 19. The ’442 Patent relates to a compressed powered gun that has a receiver with a compressed gas source fastened to one end of the gun and an elongated barrel through which projectiles may be sequentially discharged. 20. Since June 17, 2004, Tippmann has been and is still the owner by assignment of the entire right, title and interest in the ’442 Patent. -4- case 1:04-cv-00436-TLS-RBC document 51 filed 09/06/05 page 5 of 30 Tippmann’s Trademark 21. Tippmann and its predecessor in interest, Cherokee (f/k/a Tippmann Pneumatics, Inc.) have sold paintball equipment, parts and accessories under the trademark TIPPMANN throughout the United States. Tippmann is the owner of U.S. Trademark Application No. 78/392,301 for the trademark TIPPMANN for paintball markers, paintball ammunition; paintball marker power supplies, namely, projectile feeders, rear velocity adjusters, regulators, side/rear cocking systems, sight rails, stocks, trigger upgrades, barrel adapters, barrels, drop forward/tank adapters, expansion chambers, fire power upgrades, grips, cases miscellaneous fittings; grenades containing paint or colorant and sports goggles for paintball games (the “TIPPMANN Mark”). 22. Since at least as early as April, 1988, and long prior to BT’s, Benjamin R. Tippmann’s, and National Paintball’s acts complained of in this Complaint, Tippmann has used the TIPPMANN Mark in interstate commerce throughout the entire United States to identify and distinguish its goods from the products provided by others. 23. Tippmann has spent and continues to spend money using, advancing, promoting, and advertising the TIPPMANN Mark and the goods sold thereunder and, as a result of such advertising and of the reputation of Tippmann’s products, the TIPPMANN Mark has attained goodwill among consumers. 24. As a result of the long-standing manufacture and sales of its products, as well as the use of the TIPPMANN Mark in connection with the sales and offerings for sale of its products, TIPPMANN brand products have earned commercial success, recognition, and acceptance in the marketplace. 25. The TIPPMANN Mark and the goodwill of the business associated therewith are of inestimable value to Tippmann. -5- case 1:04-cv-00436-TLS-RBC document 51 filed 09/06/05 page 6 of 30 26. By the acts described below, BT and Benjamin R. Tippmann have willfully infringed the TIPPMANN Mark, engaged in unfair and deceptive practices, and deliberately traded on Tippmann’s goodwill and reputation, to Tippmann’s irreparable injury. 27. By the acts described below, National Paintball has willfully infringed the TIPPMANN Mark, engaged in contributory infringement of the TIPPMANN Mark, engaged in unfair and deceptive practices, and deliberately traded on Tippmann’s goodwill and reputation, to Tippmann’s irreparable injury. BT’s and Benjamin R. Tippmann’s Relationship to Cherokee and Tippmann 28. Defendant Benjamin R. Tippmann was employed by Tippmann Pneumatics, Inc. n/k/a as Cherokee (Tippmann's predecessor in interest) for several years. Benjamin R. Tippmann was terminated from Tippmann Pneumatics, Inc. n/k/a Cherokee on or about May 2003. Benjamin R. Tippmann acted Cherokee’s Sales Manager. Among other things, Benjamin R. Tippmann was responsible for overseeing Cherokee’s sales personnel. 29. While he was an employee of Cherokee, Benjamin R. Tippmann breached his fiduciary duties owed to Cherokee, committed constructive and actual fraud and committed criminal mischief. As discussed more fully below, Benjamin R. Tippmann secretly negotiated a fraudulent kickback scheme with a Cherokee sales person, Kyle L. Coon.