Kyjen Company v. Doskocil - Complaint

8/21/2019 Kyjen Company v. Doskocil - Complaint

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

THE KYGEN COMPANY, LLC, a Coloradolimited liability company,

Plaintiff

vs.

DOSKOCIL MANUFACTURING COMPANY,

INC., d/b/a PETMATE, a Texas corporation,

Defendant

Case No.

COMPLAINT FOR DECLARATORY

JUDGMENT OF U.S. PATENT NOS.

6,076,829 AND D666,686; AND NON-

INFRINGEMENT OF U.S.

TRADEMARK REGISTRATION NO.

3,082,546

DEMAND FOR JURY TRIAL

Plaintiff, The Kyjen Company, LLC, by and through its counsel, seeks a declaratory

judgment against Doskocil Manufacturing Company, Inc., d/b/a Petmate and alleges as follows:

PARTIES

1.

Plaintiff The Kyjen Company, LLC (“Plaintiff” or “Kyjen”) is a limited liability

company organized and existing under the laws of the state of Colorado and having a principal

place of business at 15514 Hinsdale Circle, Centennial, Colorado 80112.

2. Upon information and belief, Defendant Doskocil Manufacturing Company, Inc.

d/b/a Petmate (“Defendant” or “Doskocil”) is a corporation organized and existing under the

laws of the state of Texas and having a principle place of business at 2300 East Randol Mill

Road, Arlington, Texas 76011.

JURISDICTION AND VENUE

3.

This is a civil action for declaratory judgment pursuant to Rule 57 of the Federal

Rules of Civil Procedure and 28 U.S.C. §§ 2201 and 2202 for the purpose of determining a

question of actual controversy between the parties as hereinafter more fully appears.

4. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1338(a)

(action arising under an Act of Congress relating to patents) and 28 U.S.C. § 1331 (federal

Case 1:15-cv-01283 Document 1 Filed 06/17/15 USDC Colorado Page 1 of 6


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question).

5. This Court has personal jurisdiction over Doskocil in that it has performed acts in

Colorado subjecting itself to the laws of this District, including, but not limited to, sending

threatening letters of infringement and upon information and belief, transacting business in this

District by distributing products underlying this lawsuit through retail stores in Colorado.

6.

Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) and (c), and 28

U.S.C. § 1400(a), in that a substantial part of the events or omissions giving rise to the claim

occurred in this District, Kyjen has its principle place of business in this District and upon

information and belief, that Doskocil can otherwise be found in this District by virtue of the acts

identified above.

BACKGROUND FACTS

7.

Kyjen is a manufacturer and distributor of pet products and accessories, including

but not limited to pet ball throwing devices. Kyjen currently manufactures and sells a pet ball

throwing device under the trademark “Launch-A-Ball”®.

8. Defendant purports to be the owner, through assignment, of U.S. Patent No.

6,076,829 (the “’829 Patent”). The ‘829 Patent was issued on June 20, 2000 and is entitled Ball

Throwing Apparatus. A copy of the ‘829 Patent is attached as Exhibit 1.

9.

Defendant purports to be the owner of U.S. Patent No. D666,686 (the “’686

Patent”). The ‘686 Patent, a design patent, was issued on September 4, 2012 and is entitled Ball

Throwing Aid. A copy of the ‘686 Patent is attached as Exhibit 2.

10. Defendant purports to be the owner of U.S. Trademark Registration No.

3,082,546 (the “’546 Registration”). The ‘’546 Registration was issued on April 18, 2006 and the

‘546 Registration indicates “The mark consists of the configuration of a ball throwing toy with

rounded cup.” A copy of the ‘546 Registration is attached as Exhibit 3.

11.

By a letter dated January 21, 2015 addressed to “The Kyjen Company, Inc.” at

Kyjen’s corporate address, Dosckocil, through its’ counsel, forwarded a courtesy copy of a

Complaint filed in the United States District Court for the Western District of Pennsylvania by



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Doskocil against “The Kyjen Company, Inc.”, captioned Doskocil Manufacturing Company, Inc.

d/b/a Petmate vs. The Kyjen Company, Inc., Civil Action No. 2:15-cv-00088-MRH (the

“Petmate Complaint”). The Petmate Complaint alleged, among other things, Kyjen’s

infringement of the ‘829 Patent by its sales of the “Launch-A-Ball”® product and a pet ball

throwing device sold by Kyjen under the trademark “Flik-It”®.

12.

By a letter dated March 12, 2015, Kyjen, through its counsel, responded to the

infringement allegations presented in the Petmate Complaint with a letter which, among other

things, denied infringement of the ‘829 Patent by both the “Launch-A-Ball”® and “Flik-It”®

products.

13.

On May 20, 2015 Doskocil filed a Notice of Voluntary Dismissal of the Petmate

Complaint under Fed. R. Civ. P 41(a)(1)(A)(i), which was entered by the Court on the same day.

14.

After the voluntary dismissal, Doskocil, through counsel that is identified as “new

counsel” and different than counsel of record in the Petmate Complaint, sent a further

threatening letter dated June 3, 2015 to counsel for Kyjen re-alleging and re-stating Kyjen’s

infringement of the ‘829 Patent by its sales of the “Launch-A-Ball”® product, and further

alleging for the first time that such “Launch-A-Ball”® product also infringes the ‘686 Patent and

the purported mark shown in the ‘546 Registration which were not asserted in the Petmate

Complaint. As such, an actual, immediate, real and judiciable case or controversy exists between

Kygen and Doskocil regarding the allegations of infringement and Kygen is in reasonable

apprehension of a further infringement suit.

15. No product of Kyjen infringes any valid claim of the ‘829 Patent.

16. No product of Kyjen infringes any valid claim of the ‘686 Patent.

17.

No product of Kyjen infringes the ‘546 Registration.

18. Continued claims of infringement by Doskocil are harmful to the reputation and

sales of Kyjen’s products and will cause irreparable harm to Kyjen.

19.

Accordingly, Kyjen is entitled to and therefore seeks a declaratory judgment that

neither the “Launch-A-Ball”® product nor the “Flik-It”® product infringes any valid claim of



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the ‘829 Patent, that such products do not infringe any valid claim of the ‘686 Patent and that

such products do not infringe any mark as shown in the‘546 Registration.

FIRST CLAIM FOR RELIEF

(Declaratory Judgment of Non-Infringement of the ‘829 Patent)

20.

Kyjen hereby incorporates by reference each and every allegation set forth in

Paragraphs 1 through 19 of this Complaint.

21. Kyjen’s “Launch-A-Ball”® and “Flik-It”® pet ball throwing devices do not

infringe the ‘829 Patent, directly or indirectly, either literally or under the doctrine of

equivalents.

22.

Kyjen seeks a declaration that the ‘829 Patent is not infringed by Kyjen’s

“Launch-A-Ball”® and “Flik-It”® pet ball throwing devices.

23.

A judicial declaration is necessary and appropriate at this time in order that Kyjen

may ascertain its rights and duties with respect to the ‘829 Patent.

SECOND CLAIM FOR RELIEF

(Declaratory Judgment of Non-Infringement of the ‘686 Patent)

24. Kyjen hereby incorporates by reference each and every allegation set forth in


25.

Kyjen’s “Launch-A-Ball”® and “Flik-It”® pet ball throwing devices do not

infringe the ‘686 Patent.

26.

Kyjen seeks a declaration that the ‘686 Patent is not infringed by Kyjen’s

“Launch-A-Ball”® and “Flik-It”® pet ball throwing devices.

27. A judicial declaration is necessary and appropriate at this time in order that Kyjen

may ascertain its rights and duties with respect to the ‘686 Patent.

THIRD CLAIM FOR RELIEF

(Declaratory Judgment of Non-Infringement of the mark shown in the‘546 Registration)

28.

Kyjen hereby incorporates by reference each and every allegation set forth in




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29. Kyjen’s “Launch-A-Ball”® and “Flik-It”® pet ball throwing devices do not

infringe the any mark as shown in the ‘546 Registration.

30.

Kyjen seeks a declaration that the mark shown in the ‘546 Registration is not

infringed by Kyjen’s “Launch-A-Ball”® and “Flik-It”® pet ball throwing devices.

31.

A judicial declaration is necessary and appropriate at this time in order that Kyjen

may ascertain its rights and duties with respect to the ‘546 Registration.

PRAYER FOR RELIEF

WHEREFORE, Plaimtiff prays for judgment against Defendant as follows:

A. That the Court declare that Kyjen’s “Launch-A-Ball”® and “Flik-It”® pet ball

throwing devices do not infringe the ‘829 Patent directly or indirectly, literally or under the

doctrine of equivalents, if made, used, offered for sale, or sold in the United States or imported

into the United States;

B.

That the Court declare that Kyjen’s “Launch-A-Ball”® and “Flik-It”® pet ball

throwing devices do not infringe the ‘686 Patent if made, used, offered for sale, or sold in the

United States or imported into the United States;

C. That the Court deem this case to be “exceptional” within the meaning of 35

U.S.C. § 285 entitling Kyjen to an award of its reasonable attorneys’ fees and expenses in this

action;

D.

That the Court declare that Kyjen’s “Launch-A-Ball”® and “Flik-It”® pet ball

throwing devices do not infringe any product configuration trademark or trade dress of a ball

throwing device, including the mark as shown in the ‘546 Registration.

E. For a judicial determination that Kyjen’s products do not infringe or dilute

Dosckocil’s product configuration mark at common law or as shown in the ‘546 Registration.

F. For an Order enjoining Doskocil and its agents and attorneys from further

asserting trademark rights in the product configuration mark as shown in the ‘546 Registration

against Kyjen and its customers.

G.

For Kyjen to recover its costs and attorney’s fees in bringing this action in



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accordance with appropriate provisions of the Lanham Act, Title 15, United States Code.

H. That the Court grant such other and further relief as the Court may deem just and

proper.

JURY DEMAND

Plaintiff demands a jury trial on all claims for relief.

Dated: June 17, 2015 STETINA BRUNDA GARRED & BRUCKER

By: /s/William J. BruckerWilliam J. Brucker (CA Bar No. 152,551)

Stephen Z. Vegh (CA Bar No. 174,713)75 Enterprise, Suite 250Aliso Viejo, CA 92656

Tel: (949) 855-1246

Fax: (949) 855-6371

Attorneys for Plaintiff

THE KYJEN COPMPANY, LLC



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Case 1:15-cv-01283 Document 1-1 Filed 06/17/15 USDC Colorado Page 1 of 10


8/27Exhibit 1 Page 1 of 9



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USO0D666686S

1 2 ) Unlted States Deslgn

Patent

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S

Burger ( 4 5 ) Date o f

P a t e n t :

4 *

S e p .

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2012

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D402,167 s

1 2 / 1 9 9 8 D u r b i n

_ D405,660 s 2/1999 Hansen

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6/2000

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CLAIM

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a

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a s

shown

a n d

d e s c r i b e d .

U . S . PATENT DOCUMENTS

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DESCRIPTION

1 , 5 8 5 , 4 4 6 A 5 / 1 9 2 6

Warwick

‘ S A * $ 2 3 1 5 3 ;

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F I G .

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o f a b a l l

3 2 0 6 3 2 0 2 A 9 / 1 9 6 5 E v a n s

throwing

a i d a c c o r d i n g t o t h e p r e s e n t i n v e n t i o n;

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F I G .

D239 812

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1; _ _ _ _ _ _ _

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FIG.

5 1 s a nght s 1 d e V1ew of h e

b a l l

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4 , 9 7 4 , 5 7 4 A 1 2 / 1 9 9 0 C u t l i p

F I G _

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5,129,650

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7/1992

Hayman

3”

_ _

13352641 5 1 1 / 1 9 9 4 c o q u e r e a u FIG. 71s a r e a r V1ew ofthe b a l l throw1ng a 1 d shown n FIG. 1 .

5 , 3 9 0 , 6 5 2

A 2 / 1 9 9 5 Minneman

5 , 4 2 3 , 5 4 3 A 6 / 1 9 9 5 T a r r a n t 1 Claim, 3

Drawing

S h e e t s

Exhibit 2 Page 1 of 4



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US. Patent S e p . 4 ,

2 0 1 2

S h e e t

1

o f 3

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20/27

US.

Patent

S e p . 4 ,

2 0 1 2

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21/27

US. Patent S e p . 4 ,

2 0 1 2

S h e e t

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o f 3

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JS 44 (Rev. 12/11)

he JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except

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 the

f initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

. (a) DEFENDANTS

County of Residence of First Listed Defendant

(IN U.S. PLAINTIFF CASES ONLY)

IN LAND CONDEMNATION CASES, USE THE LOCATION

TRACT OF LAND INVOLVED.

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

I. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box fo(For Diversity Cases Only)

1 U.S. Government 3 Federal Question PTF DEF PTF DPlaintiff (U.S. Government Not a Party)

Citizen of This State 1 1 Incorporated or Principal Place 4of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5

Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a 3 3 Foreign Nation 6

Foreign Country

(Place an “X” in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTE

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 Liability690 Other

28 USC 157 410 Antitrust

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

150 Recovery of Overpayment320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS

450 Commerce & Enforcement of Judgment

Slander Personal Injury 820 Copyrights

460 Deportation151 Medicare Act

330 Federal Employers’ Product Liability 830 Patent

470 Racketeer Influenc152 Recovery of Defaulted

Liability 368 Asbestos Personal 840 Trademark

Corrupt Organizatio340 Marine

Injury Product Liability

480 Consumer Credit345 Marine Product

LABOR SOCIAL SECURITY

490 Cable/Sat TV

153 Recovery of Overpayment Liability PERSONAL PROPERTY 710 Fair Labor Standards 861 HIA (1395ff)

850 Securities/Commod

of Veteran’s Benefits350 Motor Vehicle 370 Other Fraud Act

862 Black Lung (923)

Exchange160 Stockholders’ Suits

355 Motor Vehicle 371 Truth in Lending 720 Labor/Mgmt. Relations863 DIWC/DIWW (405(g))

890 Other Statutory Ac190 Other Contract

Product Liability 380 Other Personal740 Railway Labor Act 864 SSID Title XVI

891 Agricultural Acts195 Contract Product Liability

Property Damage751 Family and Medical 865 RSI (405(g))

893 Environmental Mat

385 Property Damage Leave Act

895 Freedom of Inform

362 Personal Injury - Product Liability

790 Other Labor Litigation Med. Malpractice

791 Empl. Ret. Inc.

896 Arbitration

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS

Security Act

TAX SUITS

899 Administrative Pro

210 Land Condemnation 440 Other Civil Rights

510 Motions to Vacate

870 Taxes (U.S. Plaintiff

Act/Review or Appe

220 Foreclosure 441 Voting

Sentence

or Defendant)

Agency Decision

230 Rent Lease & Ejectment 442 Employment

Habeas Corpus:

871 IRS - Third Party

950 Constitutionality of

240 Torts to Land 443 Housing/530 General

26 USC 7609

State Statutes

245 Tort Product Liability Accommodations535 Death Penalty

IMMIGRATION

290 All Other Real Property445 Amer. w/Disabilities -

540 Mandamus & Other

462 Naturalization Application

Employment

550 Civil Rights

446 Amer. w/Disabilities -

555 Prison Condition

Other

560 Civil Detainee -

448 Education

Conditions of Confinement

465 Other Immigration

Actions

V. ORIGIN

Transferred fromanother district(specify)

(Place an “X” in One Box Only)

1 OriginalProceeding

2 Removed fromState Court

3 Remanded fromAppellate Court

4 Reinstated or Reopened

5 6 MultidistrictLitigation

VI. CAUSE OF ACTION

VII. REQUESTED IN

COMPLAINT:

CHECK IF THIS IS A CLASS ACTION

UNDER F.R.C.P. 23

CHECK YES only if demanded in complaint

No

DATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

William J. Brucker/Stephen Z. Vegh

Stetina Brunda Garred & Brucker

75 Enterprise, Suite 250, Aliso Viejo, CA 92656; (949) 855-1246

DOSKOCIL MANUFACTURING COMPANY, INC., d/b/a PETMATE, a Texas

corporation

6/17/2015 /s/William J. Brucker

Appeal to D

Judge fromMagistrate J

7

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

28 USC §§2201 and 2202

Brief description of cause: AP Docket

Proof at Trial

NOTE:

and One Box for Defendant)

196 Franchise

Student Loans (Excl. Veterans)

360 Other Personal Injury

District of Colorado Form CIVIL COVER SHEET

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

PLAINTIFFSTHE KYGEN COMPANY, LLC, a Colorado limited liability company

Arapahoe

V. NATURE OF SUIT

Declaratory Judgement

DEMAND $ JURY DEMAND: Yes

463 Alien Detainee

Other:



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JS 44 Reverse (Rev. 12/11) District of Colorado Form

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44Authority For Civil Cover Sheet

he JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers asquired by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is requ

r 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 of Court for vil complaint filed. The attorney filing a case should complete the form as follows.

(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, u

nly the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the

fficial, 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 me of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemn

ses, 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 nooting in this section “(see attachment)”.

I. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an “X

ne of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.

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

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

ederal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the

onstitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, aox 1 or 2 should be marked.

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

I. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark th

ction for each principal party.

V. Nature of Suit. Place an “X” in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, fficient to enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than on e na

f suit, select the most definitive.

. Origin. Place an “X” in one of the seven boxes.

riginal Proceedings. (1) Cases which originate in the United States district courts.

emoved 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 thetition for removal is granted, check this box.

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

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

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

igation transfers.

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

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

I. 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 jurisdictio

atutes unless diversity. Example: U.S. Civil Statute: 47 USC 553

Brief Description: Unauthorized reception of cable service

Or: “AP Docket”

II. 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.

emand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction.

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

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



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District of Colorado



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Kyjen Company v. Doskocil - Complaint

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