Case 3:10-cv D Document 119 Filed 10/07/13 Page 1 of 19 PageID 1770

Transcription

1 Case 3:10-cv D Document 119 Filed 10/07/13 Page 1 of 19 PageID 1770 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION CONCEAL CITY, L.L.C., vs. Plaintiff, LOOPER LAW ENFORCEMENT, LLC D/B/A LOOPER LAW ENFORCEMENT SUPPLY, LOOPER LEATHER GOODS CO., INC., STEVE A. WIESNER, AND MICHAEL S. WIESNER, Defendants. Civil Action No. 3:10-CV-2506-D (JURY TRIAL DEMANDED) PLAINTIFF S FOURTH AMENDED ORIGINAL COMPLAINT NOW COMES Plaintiff, Conceal City, L.L.C. ( Conceal City ), by and through its attorneys, to make and file its pursuant to the Scheduling Order of this Court [Doc. 99]. Plaintiff pleads against Defendants, Looper Law Enforcement, LLC d/b/a Looper Law Enforcement Supply ( Looper Law ), Looper Leather Goods Co., Inc. ( Looper Leather ), Steve A. Wiesner ( Wiesner ), and Michael S. Wiesner ( hereinafter collectively referred to as Defendants ), and for cause of action would respectfully show the Court as follows: I. PARTIES 1.0 Plaintiff Conceal City, L.L.C. is a Texas limited liability company, organized under the laws of the State of Texas, having its principal place of business in Carrollton, Texas. Page 1 of 19

2 Case 3:10-cv D Document 119 Filed 10/07/13 Page 2 of 19 PageID Defendant, Looper Law Enforcement, LLC, is a limited liability company organized under the laws of the State of Oklahoma, having its principal place of business in Oklahoma City, Oklahoma County, Oklahoma. Looper Law Enforcement, LLC does business using the name Looper Law Enforcement Supply. Looper Law has appeared herein and no service of additional process is necessary. 1.2 Defendant, Looper Leather Goods Co., Inc., is a corporation organized under the laws of the State of Oklahoma, having its principal place of business in Oklahoma City, Oklahoma. Looper Leather has appeared herein and no service of additional process is necessary. 1.3 Defendant, Steve A. Wiesner, is an individual, residing at 4505 Lake Park Dr., Arlington, Texas Steve A. Wiesner has appeared herein and no service of additional process is necessary. 1.4 Defendant, Michael S. Wiesner, is an individual, residing at 2526 Central Dr., Apt. # 927, Bedford, Texas Michael S. Wiesner has appeared herein and no service of additional process is necessary. II. JURISDICTION AND VENUE 2.0 This is an action for infringement of a United States patent and for false marking pursuant to 35 U.S.C. 271 and 292. Ancillary and joined to infringement of a United States patent, Plaintiff sues all Defendants for state law unfair competition and sues Looper Law for breach of contract claims which is substantially related to the patent infringement. This Court has jurisdiction over the subject matter in this case based upon federal question under 28 U.S.C. 1338(a) and (b). The accused product is sold in this District and Division, therefore Defendants engage in infringing activity in the Page 2 of 19

3 Case 3:10-cv D Document 119 Filed 10/07/13 Page 3 of 19 PageID 1772 Northern District of Texas. Jurisdiction is proper in this District pursuant to 28 U.S.C. 1391(c). 2.1 Looper Law and Looper Leather (the Looper Defendants ) do business and have systematic contacts in Texas, including, without limitation, shipping goods to purchasers in Texas. The Looper Defendants have committed acts of infringement in Texas including, without limitation, shipping infringing holsters to the Northern District of Texas for resale in the Dallas Division of the Northern District of Texas, among other places in Texas. In addition, the Looper Defendants advertise on the internet via websites, which include Texas. 2.2 Defendants, Steve Wiesner and Michael Wiesner, purchase the infringing holsters from the Looper Defendants, offer for sale and sell the infringing Hyde-It Holster in Texas, including, without limitation, within the Dallas Division of the Northern District of Texas. Venue is proper in this District and Division under 28 U.S.C. 1400(b). 3.0 The 827 Patent III. FACTS GERMANE TO ALL CAUSES OF ACTION 3.1 U.S. Patent No. 5,570,827 (the 827 Patent ), entitled Holster was duly and legally issued by the United States Patent and Trademark Office on November 5, The 827 Patent relates to a holster for carrying a handgun that is concealed from plain view even without the handgun owner wearing a jacket, vest, or un-tucked shirt. 3.2 Steve A. Wiesner is the inventor and was the original owner of the 827 Patent. 3.3 Steve A. Wiesner entered into an arrangement with Looper Law and Looper Leather for the Looper entities to make the holster which is the embodiment of the 827 Page 3 of 19

4 Case 3:10-cv D Document 119 Filed 10/07/13 Page 4 of 19 PageID 1773 Patent. Wiesner supplied the Looper Defendants with dies and other implements through which the holsters were made. Wiesner purchased the holsters from the Looper Defendants and sold them under the name PAGER PAL. Pursuant to the agreement and course of dealings between Wiesner and the Looper Defendants, the Looper Defendants were the only manufacturer of the PAGER PAL holster. Further, Wiesner was the exclusive distributor of the PAGER PAL holster and the Looper Defendants did not sell the holsters to anyone but Wiesner. In the course of performing on their agreement, Wiesner became indebted to the Looper Defendants and to secure the debt assigned, by a written security agreement, various of his assets, including, without limitation, the 827 Patent. To satisfy his debt to the Looper Defendants, on or about September 27, 2007, Wiesner assigned, by a written assignment, all his right, title and interest in the 827 Patent to Looper Law Enforcement, LLC. Wiesner left the holster business to pursue other business opportunities. 3.4 Bill Crowell had worked with Steve Wiesner in procuring finished holsters from the Looper Defendants and in marketing them at material times in which Wiesner and the Looper Defendants were performing on their agreement. After Wiesner became indebted to them, the Looper Defendants offered to permit Bill Crowell to enter into the same arrangement and course of dealing the Looper Defendants had with Wiesner. The Looper Defendants would continue as the exclusive maker of the holsters, Crowell d/b/a Conceal City, would become the exclusive distributor, and in exchange for an assignment of the 827 Patent to Conceal City, Crowell would pay Looper Law Enforcement the amount of the Wiesner debt, thereafter the Looper Defendants and Crowell would continue the maker/distributor course of dealing. Crowell accepted the Page 4 of 19

5 Case 3:10-cv D Document 119 Filed 10/07/13 Page 5 of 19 PageID 1774 offer according to these terms; replaced Wiesner as the exclusive distributor of the holsters; and entered into the same relationship and arrangement Wiesner had with the Looper Defendants. 3.5 As the exclusive distributor Crowell d/b/a Conceal City purchased the holsters exclusively from the Looper Defendants. Out of the profits Crowell d/b/a/ Conceal City made from selling the Looper Defendants supplied holsters, Crowell paid Looper Law Enforcement the amount of the Wiesner debt and, on or about November 10, 2009, Looper Law Enforcement, LLC assigned, by a written assignment, all right, title and interest in the 827 Patent to Crowell, under the name, Conceal City LLC. Crowell became the sole owner of the 827 Patent or, alternatively, a co-owner of the 827 Patent with Lu Juanna Crowell. 3.6 On or about April 5, 2010, Bart Looper authored a writing regarding History of Patent #5,570,827 in which Looper, inter alia, made written confirmation of the existence and partial performance of the agreement with Crowell. Looper wrote, On September 7, 2007, Mr. Wiesner assigned above patent to Looper Law Enforcement LLC in lieu of his debt. At that time we contracted with Bill Crowell to become the distributor for the product bound by the above patent. We also agreed with him that at such time as he was able to, he could purchase the patent from us for the approximate amount that Steve Wiesner defaulted on. Mr. Crowell made final payment on October 30, 2009 and we presented him with an assignment of patent affidavit. 3.7 From on or about September 7, 2007 until around May, 2010, the Looper Defendants continued to perform on the contract with Crowell and established a course Page 5 of 19

6 Case 3:10-cv D Document 119 Filed 10/07/13 Page 6 of 19 PageID 1775 of dealing with him in which the Looper Defendants were the exclusive manufacturer of the holster and Crowell was the exclusive distributor of the holster. 3.8 On January 21, 2011 Conceal City, LLC was assigned by written assignment from both Bill Crowell and Lu Juanna Crowell, all right, title and interest in and to the 827 Patent, including, without limitation, all rights to prosecute claims and causes of action for infringement and recover damages or obtain other remedies in connection with prosecution of such claims. Likewise, Bill Crowell and Lu Juanna Crowell have assigned, by written assignment, to Conceal City, LLC all claims and causes of action for breach of the agreement that he would be the exclusive distributor of the holsters. 3.9 The PAGER PAL 3.10 Steve Wiesner marketed the holster, the embodiment of the 827 Patent, under the name PAGER PAL. On or about March 4, 1996, Wiesner applied for a trademark for PAGER PAL which was placed on the Principal Register as United States Trademark Registration No and issued on or about January 21, Wiesner sold the PAGER PAL as the main distributor through a marketing chain of independent sales representatives. The PAGER PAL was sold typically at gun shows in Texas and various other places. Wiesner also sold the PAGER PAL holster over the internet via a website On or about October 27, 2007, about the time Wiesner assigned the 827 Patent to Looper Law, the PAGER PAL trademark registration was cancelled Having sold his patent, having his trademark registration cancelled, Wiesner left the holster business and began to pursue business unrelated to the PAGER PAL holster. Page 6 of 19

7 Case 3:10-cv D Document 119 Filed 10/07/13 Page 7 of 19 PageID CELLPAL and Conceal City 3.15 After Steve Wiesner left the holster business, Looper Law offered Bill Crowell the opportunity to replace Steve Wiesner as the distributor of the patented holster. Bill Crowell, in conjunction with Lu Juanna Crowell as co-proprietors, began doing business under the name Conceal City. As a proprietor, Crowell replaced Steve Wiesner as the distributor of the Holster. Crowell, on a Conceal City account, paid the Wiesner debt to Looper Law. Crowell bought the holsters, the embodiment of the 827 Patent, from Looper Law and marketed them through a chain of independent sales representatives much as Wiesner had done. Crowell has marketed the patented holster through some sales representatives that had sold the PAGER PAL holster for Steve Wiesner, including, without limitation, Michael Wiesner, Sam Gray and Stuart Mirsky Crowell began to market the holster under the name CELLPAL reflecting the trend toward cell phone use and away from pagers. The CELLPAL holster is the same holster as the PAGER PAL. It differs only in that a cell phone or pad holder accessory is used in connection with the holster rather than a pager holder. Crowell markets the CELLPAL holster in the Dallas Division of the Northern District of Texas, among other places, and sells the holster on the internet via the concealcity.com website After assigning the 827 Patent to Crowell under the name Conceal City LLC, the Looper Defendants continued to be the sole makers and suppliers of the patented holster. Crowell authorized Looper Law Enforcement, LLC to make or have Looper Leather make the holsters if that occurred, and sell the holsters only to Conceal City LLC, under the agreed arrangement. Crowell never authorized or otherwise agreed that Page 7 of 19

8 Case 3:10-cv D Document 119 Filed 10/07/13 Page 8 of 19 PageID 1777 Looper Law Enforcement, LLC or Looper Leather Goods Co., Inc. would sell, supply or distribute to anyone but Crowell d/b/a Conceal City The Looper Defendants continued to make the patented holster and ship the holsters to Crowell in Carrollton, Texas. In or about May, 2010, and then unknown to Crowell, the Looper Defendants began selling the holsters to Sam Gray ( Gray ). Also, about this time, Steve Wiesner returned to the holster business and obtained the patented holsters, either directly from Looper Law and/or through Gray. Gray and Wiesner began developing a marketing chain of independent sales representative to sell the patented holster. Upon learning about this in July 2010, Crowell instructed the Looper Law Defendants that no holsters that were covered by the 827 Patent were to be sold to anyone other than Crowell. However, the Looper Defendants continued to make the holsters as they had always done; using the same dies and implements, originally received from Steve Wiesner, which they had used for years. Despite Crowell s admonition about selling holsters only to him, Looper Law continued to sell the holsters to Sam Gray and Steve Wiesner Because the Looper Defendants had been the exclusive maker and supplier of the patented holster, it had all the implements of production. Because they continued to supply holsters to others, Crowell began the process of securing implements of production and finding a new holster maker. During this process, Crowell was forced to continue to purchase the holsters from Looper Law. Therefore, at times Looper Law sold the holsters to Crowell as well as to Gray and Wiesner. Upon completing the process of securing a new holster maker, Crowell demanded that Looper Law return the dies to the patent holster and other dies unrelated to the holsters so that the Looper Page 8 of 19

9 Case 3:10-cv D Document 119 Filed 10/07/13 Page 9 of 19 PageID 1778 Defendants would cease and desist from making and selling holsters protected by the 827 Patent Steve Wiesner and his son, Michael Wiesner, sell the patented holsters, themselves, and through other independent sales representatives under the name Hyde-It Holster. These holsters are made by the Looper Defendants with the same dies, implements and out of the same materials as the PAGER PAL holsters and the CELLPAL holsters and are the same holsters, in all material respects Crowell formed a limited liability company, Conceal City LLC, which acts as the distributor of the CELLPAL holster and markets them through the same independent sales representatives as did Crowell, individually, and under the name Conceal City LLC Since this case was originally filed in December, 2010, the Looper Defendants have continued to manufacture the holsters and Wiesners continue to procure and retail the offending Hyde-It Holster unabated In addition to manufacturing the holster, Looper Law Enforcement, LLC has participated over the years in offering for sale and selling the holsters the subject of the 827 Patent. At selected gun shows or trade shows, Looper Law Enforcement, LLC has maintained a booth as an exhibitor. From May 14-16, 2010, Looper Law had a booth at the convention of the National Rifle Association held in in Charlotte, North Carolina. Looper Law shared its booth with Crowell, as it had done at the 2009 NRA show in Phoenix, Arizona. CELL PAL holsters were displayed, demonstrated, offered for sale and sold. On these occasions, Bart Looper worked side-by-side with Crowell, Page 9 of 19

10 Case 3:10-cv D Document 119 Filed 10/07/13 Page 10 of 19 PageID 1779 personally participating in the exhibition, demonstration, offering for sale and sale of the CELL PAL holster to NRA members and convention trade show attendees Crowell s sales representative for eastern states, Sam Gray, attended the 2010 NRA convention. It was on the return from the 2010 NRA convention that Bart Looper and Sam Gray met and agreed that Looper Law would start to sell the holsters the subject of the agreement with Crowell and the 827 Patent directly to Gray, circumventing Crowell. By July, 2010 Steve Wiesner had returned to the business and became Gray s southwestern states sales representative selling the Hyde-It Holster Since May, 2010, Looper Law, as it had done with Crowell, shared its exhibitor s booth at selected gun shows or trade shows with Sam Gray. On April 28 through May , at the NRA convention in Pittsburg, Pennsylvania, Looper Law shared its booth with Gray. Hyde-It Holsters were displayed, demonstrated, offered for sale and sold. On these occasions, Bart Looper worked side-by-side with Gray and other salesmen personally, participating in the exhibition, demonstration, offering for sale and sale of Hyde-It Holsters to NRA members and convention trade show attendees. Again, in 2012 at the NRA convention in Saint Louis, Missouri, Looper Law shared its booth with Gray. Hyde-It Holsters were displayed, demonstrated, offered for sale and sold. Bart Looper again worked side-by-side with Gray and other salesman, personally participating in the exhibition, demonstration, offering for sale and sale of Hyde-It Holsters to NRA members and convention trade show attendees In the same way Looper Law in 2011, 2012, and 2013 was an exhibitor at the National Shooting Sports Foundation SHOT Show in Las Vega, Nevada. On each of these occasions, Looper Law shared its booth with Gray. Again, Hyde-It Holsters were Page 10 of 19

11 Case 3:10-cv D Document 119 Filed 10/07/13 Page 11 of 19 PageID 1780 displayed, demonstrated, offered for sale and sold. Bart Looper again participated in the exhibition, demonstration, offering for sale and sale of Hyde-It Holsters to trade show attendees All this activity by Looper Law and Gray are in furtherance of the agreement and arrangement among Looper Law, Gray and Wiesners made to pass-off the Hyde-It Holster as the CELLPAL holster and unfairly compete with Crowell and Conceal City Since this litigation has been pending, and after receipt of this Court s claim construction, Looper Law and/or Wiesners have produced a modified version of the holster that appears to be identical to the infringing holster Looper Law had always made and the subject of this infringement action, except in the manner in which the clip retainer layer joined to the tab opposite the inner layer of the outer layer with the joining means comprising four rivets rather than stitching. The rivets are positioned at the four corners of the clip retainer layer. Conceal City would show that the rivets function to join the clip retainer layer in substantially the same way as the stitching prescribed in the 827 Patent. The manner or way of attachment by the rivets is virtually identical to that of the stitching. Finally, the result achieved in joining the clip retainer layer to the outer layer tap is virtually identical opposite the inner layer enabling the clip to be secured therein is also virtually identical to that achieved by the stitching. Accordingly, the modified holster infringes the 827 Patent under the doctrine of equivalents Defendants have also changed the name designation varying the form or spelling of Hyde-It to Hide-It, or other similar variations. Page 11 of 19

12 Case 3:10-cv D Document 119 Filed 10/07/13 Page 12 of 19 PageID 1781 IV. CAUSES OF ACTION 4.0 Plaintiff incorporates by reference all the allegations contained in Sections I-III of its Fourth Amended Original Complaint germane to each cause of action asserted. 4.1 Patent Infringement 4.2 Defendants are literally infringing the 827 Patent in violation of 35 U.S.C. 271(a). 4.3 Defendants are inducing others to infringe the 827 Patent in violation of 35 U.S.C. 271(b). 4.4 Alternative to literal infringement, in the event there is no literal infringement because some attribute(s) of the Hyde-It Holster, especially concerning the modified version thereof, differ from the claims and limitations of the 827 Patent, Defendants are infringing on the 827 Patent under the doctrine of equivalents. The Hyde-It-Holster has substantial identity of function, means and result as the patented holster under the claims of the 827 Patent. 4.5 Steve Wiesner, as the inventor and first patent owner, and Looper Law Enforcement, LLC as a former owner of the patent are, obviously, actually aware of the existence and claims of the 827 Patent. Looper Leather and Michael Wiesner by their relationship to Looper Law and Steve Wiesner, are also actually aware of the 827 Patent and its claims. The infringement by Defendants is willful, intentional and exceptional pursuant to 35 U.S.C False Marking 4.7 Defendants, Steve Wiesner and Michael Wiesner, sell, promote and market the Hyde-It Holster at least in part through the internet via or with express reference to a Page 12 of 19

13 Case 3:10-cv D Document 119 Filed 10/07/13 Page 13 of 19 PageID 1782 website, universalholsters.com. In violation of 35 U.S.C. 292 and in advertising the Hyde-It Holster, the universalholsters.com website in describing the Hyde-It Holster states: [M]ade in the U.S.A. US Patent# Because the Hyde-It Holster is not the patented holster but an infringing holster the reference to the 827 Patent is intended to deceive consumers into thinking that the Hyde-It Holster is protected by the patent. This constitutes false marking of which these Defendants are guilty. 4.8 Unfair Competition 4.9 In marketing the Hyde-It Holster, Defendants, Looper Law and Wiesners, palm off or pass off that holster as the CELLPAL holster. Defendants represent that the owner of the CELLPAL renamed the holster the Hyde-It Holster; that the inventor of the holster is Steve Wiesner; and that CELLPAL and Hyde-It Holster are the same. Thus, Defendants misrepresent that the source or sponsor of the Hyde-It Holster is the same as the CELLPAL. Defendants thereby trade off the goodwill of the CELLPAL holsters rightfully and honestly developed by Conceal City In advertising on the internet through the website, universalholsters.com, the statement Universal Holsters- Home of the Cell/PDA Pal appears referencing the CELLPAL and thereby making it appear that the source or sponsor of the Hyde-It Holster is the same as the CELLPAL holster Together with their acts of patent infringement Defendants are guilty of unfair competition in violation of Texas law Civil Conspiracy 4.13 An agreement exists by and among the Looper Defendants, Steve Wiesner, Michael Wiesner, and Sam Gray to pass off, to palm off, to misrepresent the source and Page 13 of 19

14 Case 3:10-cv D Document 119 Filed 10/07/13 Page 14 of 19 PageID 1783 sponsor of the patent protected CELLPAL holster as that of the infringing Hyde-It Holster, and to unfairly compete with Crowell and Conceal City LLC in violation of Texas law. All these Defendants have engaged in exhibiting, promoting, demonstrating and selling the Hyde-It holster to pass off, to palm off, to misrepresent the source and sponsor of the patent protected CELLPAL holster as that of the infringing Hyde-It Holster, and to unfairly compete with Crowell and Conceal City LLC in violation of Texas law By their agreement to commit their tort, all the Defendants are in conspiracy and are jointly and severally liable for all damages caused Breach of Agreement 4.16 The Looper Defendants breached the agreement that Crowell would be the exclusive distributor of the holsters of the type previously made exclusively for Wiesner. By beginning to sell the holsters to Sam Gray, Wiesners, and others, despite being demanded to cease and desist, the Looper Defendants breached the agreement. This breach of the agreement is the proximate cause of damages sustained by Crowell and Conceal City LLC. V. DAMAGES AND OTHER REMEDIES 5.0 Plaintiff seeks all remedies against each Defendant, jointly and severally, as afforded by 35 U.S.C. 281 and The Defendants will continue to actually engage in infringing acts and unfair competition unless enjoined by the Court. Plaintiff is entitled to a permanent injunction against each Defendant pursuant to 35 U.S.C. 283 prohibiting each from infringing the Page 14 of 19

15 Case 3:10-cv D Document 119 Filed 10/07/13 Page 15 of 19 PageID Patent, engaging in acts of unfair competition and from conspiring with one another to do so. 5.2 Plaintiff is entitled to damages, including, without limitation, at a minimum an amount not less than a reasonable royalty for the Defendants infringement of the 827 Patent, together with interest and costs as assessed by the Court, pursuant to 35 U.S.C. 284, along with consequential damages for breach of contract. 5.3 Plaintiff is entitled to have the Court award treble damages pursuant to 35 U.S.C Plaintiff is entitled to recover reasonable attorney s fees for this exceptional case of infringement pursuant to 35 U.S.C 285. Additionally, more than thirty days before suit, Crowell presented demand to Looper Law to cease breaching the agreement by selling the holsters to others. Looper Law failed to do so and it was necessary to retain legal counsel to prosecute a breach of contract action against Looper Law. Pursuant to et seq of the Texas Civil Practice & Remedies Code, Looper Law is liable for reasonable attorney s fees which Plaintiff is entitled to recover. 5.5 Recovery of one-half of the $500 per offense of false marking of the Hyde-It Holster pursuant to 35 U.S.C. 292 (b). 5.6 The breach of agreement by Looper Law is the proximate cause of damages sustained by Crowell and by Conceal City. These damages include, without limitation, a loss of sales of the CELLPAL holster by Conceal City, and before it Crowell, resulting in a loss of profits. 5.7 The unfair competition in which Defendants have engaged is the proximate cause of damages sustained by Crowell and Conceal City. Conceal City is entitled to a Page 15 of 19

16 Case 3:10-cv D Document 119 Filed 10/07/13 Page 16 of 19 PageID 1785 disgorgement of the revenues and profits received by each Defendant herein, in addition to recovery of their damages. 5.8 Specific Relief Sought By Permanent Injunction 5.9 Plaintiff requests the Court issue a permanent injunction which will enjoin Defendants from the following: 1) Using the dies in making any holster, including the Hyde-It Holster; 2) Using the dies in making any holster that infringes the 827 Patent; 3) Making the Hyde-It Holster; 4) Making any holster that infringes the CELLPAL; 5) Distributing any Hyde-It Holster, including without limitation, transferring any Hyde-It Holster to any other person or entity; 6) Selling any Hyde-It Holster; 7) Selling any holster that infringes the 827 Patent; 8) Offering for sale any Hyde-It Holster; 9) Offering for sale the holster that infringes the 827 Patent; 10) Advertising the Hyde-It Holster; 11) Advertising any holster that infringes the 827 Patent; 12) Marking any holster, including, without limitation, any Hyde-It Holster with any reference to a patent, including, without limitation, US Patent # 5,570,827; 13) Using any reference to any patent, including, without limitation, US Patent # 5,570,827, in any advertising of any holster, including, without limitation, any Hyde-It Holster; Page 16 of 19

17 Case 3:10-cv D Document 119 Filed 10/07/13 Page 17 of 19 PageID ) Using, maintaining or supporting any website or using any website that advertises the Hyde-It Holster and any holster that infringes the US Patent No. 5,570, ) Using, maintaining or supporting any website or using any website that advertises or states that Universal Holsters is the home of the CELL/PDA PAL. 16) Representing that the Hyde-It Holster is protected by US Patent No. 5,570,827 and/or that the Hyde-It-Holster and the CELLPAL holster are the same, have a common source or sponsorship; that the Hyde-It Holster and the CELLPAL Holster are related to each other; and that the CELLPAL holster was renamed as the Hyde-It Holster. VI. FINE FOR FALSE MARKING 6.0 The Court should impose a fine upon Defendants of $ per offense for false marking pursuant to 35 U.S.C. 292(a). VII. REQUEST FOR TRIAL BY JURY 7.0 Plaintiff respectfully requests a trial by jury. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff, Conceal City, L.L.C., respectfully prays that upon trial on the merits, this Court render Judgment in Plaintiff s favor and against the Defendants, Looper Law Enforcement, LLC, Looper Leather Goods Co., Inc., Steve A. Wiesner, and Michael S. Wiesner, as follows: Page 17 of 19

18 Case 3:10-cv D Document 119 Filed 10/07/13 Page 18 of 19 PageID 1787 A. Defendants be permanently enjoined from infringing U.S. Patent No. 5,570,827 in any manner; B. Defendants be ordered to deliver up for destruction all articles that infringe the 827 Patent, including all of the infringing holsters both original and modified; C. Defendants be ordered to pay Plaintiff actual damages for infringing the 827 Patent; for inducing others to infringe the 827 Patent; for unfair competition and breach of agreement. Further, each Defendant should disgorge revenues and profits received from sales of the Hyde-It Holster. D. Defendants be ordered to pay Plaintiff three (3) times the amount of actual damages for willfully infringing the 827 Patent; E. Defendants be ordered to pay interest, costs and reasonable attorney s fees to Plaintiff; F. The Court fine Defendants $ for each and every offense of false marking and award one-half of such fine to Plaintiff; and G. For general and such further and other relief, at law or in equity, as to which Plaintiff may show itself justly entitled. Dated: October 7, 2013 Respectfully submitted, /s/ Daniel L. Bates Daniel L. Bates State Bar No dbates@deckerjones.com Brian K. Yost State Bar No byost@deckerjones.com Page 18 of 19

19 Case 3:10-cv D Document 119 Filed 10/07/13 Page 19 of 19 PageID 1788 CERTIFICATE OF SERVICE DECKER, JONES, MCMACKIN, MCCLANE, HALL & BATES, P.C. 801 Cherry Street, Suite 2000, Unit #46 Fort Worth, Texas Telephone: (817) Telecopier: (817) ATTORNEYS FOR PLAINTIFF The undersigned hereby certifies that, on October 7, 2013, the above and foregoing instrument is being electronically filed with the Clerk of Court for the United States District Court, Northern District of Texas, using the electronic case filing system of the Court. The electronic case filing system sends a Notice of Electronic Filing to all counsel of record, who are ECF registrants, and a true and correct copy of this instrument is being forwarded to counsel of record pursuant to Rule 5 of the Federal Rules of Civil Procedure as follows: John T. Wilson Kandace D. Walter Wilson Legal Group P.C Dallas Parkway, Suite 1000 Dallas, Texas /s/ Daniel L. Bates Daniel L. Bates Page 19 of 19