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Goldberg et. al. v. Rosenzweig et. al

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					                                  UNITED STATES DISTRICT COURT
                                        DISTRICT OF NEW JERSEY
------------------------------------------------------------- X
                                                              :
EDWARD GOLDBERG, FOREVER GREEN                                :
HOLDINGS LLC, AND UNIVERSAL                                   :
SOURCING, INC.,                                               : Civil Action No.
                                                              :
                                    Plaintiffs,               :
                                                              :
-- against --                                                 : COMPLAINT AND
                                                              : DEMAND FOR JURY TRIAL
KEITH ROSENZWEIG AND                                          :
KLR HOLDING, LLC,                                             :
                                                              :
                                    Defendants.               :
                                                              :
------------------------------------------------------------- X


       Plaintiffs Edward Goldberg (“Goldberg”), Forever Green Holdings, LLC (“Forever

Green”), and Universal Sourcing, Inc. (“Universal”), by their attorneys Charles J. Kleiner, Esq.

and Wilk Auslander LLP, as their Complaint against Keith Rosenzweig (“Rosenzweig”) and

KLR Holding, LLC “(KLR”), allege as follows:

                                 NATURE OF THE ACTION

       1.      This is an action for false designation of origin, false advertising, and cyberpiracy

under the Lanham Act (15 U.S.C. §§ 1125) and patent infringement under the Patent Laws of the

United States (35 U.S.C. § 101, et seq.).

                                JURISDICTION AND VENUE

       2.      Jurisdiction over the parties and subject matter of this action is proper in this

Court pursuant to 15 U.S.C. § 1121 (actions arising under the Lanham Act), 28 U.S.C. § 1331

(actions arising under the laws of the United States), 28 U.S.C. § 1332(a) (diversity of

citizenship between the parties), and § 1338 (actions arising under an Act of Congress relating to

trademarks and patents).
        3.      This Court has personal jurisdiction over Defendants because they conduct

business in the State of New Jersey.

        4.      Venue is properly found in this judicial district pursuant to 28 U.S.C. §§ 1391(b)

and (c) because a substantial part of the events giving rise to the claims in this action occurred

within this District.

                                         THE PARTIES

        5.      Plaintiff Goldberg is a New Jersey resident.

        6.      Plaintiff Forever Green is a Delaware limited liability company with its principal

place of business located at 501 Reis Avenue, Teaneck, NJ 07666.

        7.      Plaintiff Universal is a New Jersey Corporation with its principal place of

business located at 210 The Plaza, Suite 8, Teaneck, NJ 07666.

        8.      Upon information and belief, Defendant KLR is an Arizona limited liability

company with its principal place of business located at 515 S. 48 Street, Suite 101, Tempe,

Arizona 85281. KLR is engaged in the importation and sale of promotional products.

        9.      Upon information and belief, Defendant Rosenzweig is an Arizona resident and

the sole member of KLR.

                                       INTRODUCTION

        10.     On December 1, 2010, Rosenzweig initiated an action against Universal and

Goldberg in the Superior Court of New Jersey for payment allegedly due under a “Bonus

Commission Agreement” and personal guaranty.           Universal and Goldberg counterclaimed,

arguing that (i) not only does KLR owe Universal hundreds of thousands of dollars for, among

other things, unpaid receivables and transferred and unsold inventory, but (ii) that after the

parties terminated their relationship and continuing to the present date, KLR and Rosenzweig

have unlawfully and in bad faith promoted themselves and conducted business as being affiliated


                                             2
with Universal without Universal’s authorization or consent in violation of New Jersey common

law and the New Jersey Unfair Competition Act.

        11.        More significantly, KLR and Rosenzweig have unlawfully, improperly, and

without license or consent willfully pirated, marketed, sold, and profited from patented products

developed by Goldberg and distributed by Universal in direct violation of the Patent Laws of the

United States (35 U.S.C. § 101, et seq.).         In addition, KLR’s and Rosenzweig’s wanton,

egregious, and self-serving disregard for Universal’s exclusive right to the use of its trade name

indisputably violates the Lanham Act (15 U.S.C. § 1125).

        12.        As is set forth in detail below, Rosenzweig approached Goldberg in 1995 as an

out-of-work salesman looking for an employment opportunity. Goldberg provided Rosenzweig

with that opportunity when he offered him a job as an independent sales representative for

Universal, a company engaged in the importation and sale of promotional products. Moreover,

Goldberg made life easy for Rosenzweig: Rosenzweig was only tasked with finding customers;

Universal, through Goldberg, had already expended significant time and money developing

relationships with domestic and overseas suppliers, had the capital and credit to place orders, had

the knowledge necessary to ship and deliver goods, and most importantly, had the knowhow and

business infrastructure to deliver product to customers. Rosenzweig, by contrast, had none of

these abilities.

        13.        For approximately twelve years, Rosenzweig (and later) KLR (formed by

Rosenzweig in or about July 2004), took full advantage of this arrangement, becoming

dependent on Goldberg and Universal for virtually every aspect of their business. Thus, in May

2007, when the parties terminated their relationship and Rosenzweig was forced to build his

business on his own, he did the only thing he knew: he relied on Universal’s name, reputation,

goodwill, industry relationships, products, and intellectual property, regardless of whether he


                                              3
was authorized to do so. In essence, Rosenzweig’s desperation led him to take from Universal

that to which he had neither entitlement, nor license.

       14.     Quite simply, Rosenzweig and KLR seek to have their proverbial cake and eat it

too: They expect to reap the benefits of being affiliated with Universal – including the use of

Universal’s trade name and its patented products – without authorization, consent, or license and

without compensating Universal for the use of its name or its intellectual property.

                                  FACTUAL BACKGROUND

       The Relationship Between the Parties

       15.     The facts underlying Universal’s claims are as follows:         In 1995, Goldberg

formed Universal, which at all relevant times was engaged in the business of importing and

selling promotional products to businesses and organizations.

       16.     Since its inception, Universal has actively marketed and sold promotional and

novelty products throughout the United States and abroad through a variety of retail and

wholesale distributors using the trade name “Universal Sourcing” and has developed a reputation

as a recognized seller of promotional products.          Universal has also used the trade name

“Universal Sourcing” to distinguish its business from those of other sellers, by prominently

displaying the name in its advertising, catalogues, and letterhead.

       17.     In or about September 1995, Rosenzweig, who had recently been terminated from

his previous job, contacted Goldberg and asked if he could join Universal as an independent

sales representative operating out of Arizona. At the time, Rosenzweig had potential customers,

but had no capital or credit, no relationship with suppliers or importers, no infrastructure, and

virtually no knowledge of the actual steps necessary to turn a customer’s order into delivered

merchandise. Rosenzweig therefore intended to solicit potential customers and rely exclusively




                                             4
and entirely on Goldberg and Universal to perform all of the “back office” functions required to

close deals, purchase merchandise, and facilitate delivery.

       18.     Consequently, Goldberg engaged Rosenzweig as an independent sales

representative and the two agreed on the financial terms governing their relationship.

Specifically, Goldberg and Rosenzweig agreed that they would split, on a 50/50 basis, profits

earned from sales to customers originated by Rosenzweig, after accounting for and deducting all

costs and expenses incurred by Universal in the preparation and delivery of the orders and the

servicing of Rosenzweig’s customers, including any costs or expenses related to Universal’s

overhead.

       19.     Over the course of the next several years, Goldberg and Rosenzweig continued

their business relationship accordingly. Rosenzweig began to originate accounts; however, at all

times, he was entirely dependent on Universal not only to handle placing and delivering orders,

but increasingly to provide day-to-day support to the customers he originated. Rosenzweig often

requested that Goldberg fly to Arizona to meet with customers and handle specific problems and

issues that arose. In addition, Goldberg provided ongoing customer support to certain customers

serviced by Rosenzweig that were located in the New York Metropolitan area, at times, visiting

them two to three times per week.

       20.     In or about March 2005, Rosenzweig informed Goldberg that he would begin to

operate through his new company, KLR, which would purchase merchandise exclusively from

Universal. Going forward, KLR, through Rosenzweig, agreed to pay Universal (i) the cost of

any items ordered for KLR’s customers and (ii) 50% of KLR’s markup on those items. In

addition, the parties agreed that Rosenzweig and KLR could continue to represent themselves as

being affiliated with Universal.




                                             5
        21.      KLR and Universal continued under this arrangement until approximately May

2007, at which time the parties experienced a falling out and “supposedly” agreed to wind down

their business relationship – supposedly, because unbeknownst to Universal or Goldberg and by

direct contrast to Rosenzweig’s representations, Rosenzweig and KLR have continued (i) to

advertise themselves and conduct business as Universal and (ii) to manufacture, offer for sale,

and sell products that blatantly infringe Goldberg’s and Forever Green’s patent rights.

        22.      Indeed, to this day, KLR unabashedly (i) promotes itself as “Universal Sourcing

(a division of KLR Holding, LLC)” on its website and (ii) includes numerous products protected

by Goldberg’s and Forever Green’s patents in its catalogue almost four years after the parties

terminated their relationship.

        Defendants Fraudulently Advertise and Conduct Business
        as Universal Without Consent or Authorization

        23.      As set forth above, for more than a decade, Rosenzweig and (later) KLR were

completely dependent on Goldberg’s and Universal’s reputation, goodwill, industry

relationships, and infrastructure to operate. As set forth in detail below, Rosenzweig and KLR

clearly (but erroneously) believe that they can continue to leverage their former association with

Universal even though they have never received authorization from Universal to do so – indeed,

they have never even sought Universal’s consent to do so – and no longer compensate Universal

for that affiliation.

        24.      As set forth above, more than four years after the parties agreed to end their

affiliation, KLR’s website prominently refers to itself as “Universal Sourcing (a division of KLR

Holding, LLC).” Indeed, KLR’s URL is http://klruniversalsourcing.com and Rosenzweig’s e-

mail address is keith@klruniversalsourcing.com. A copy of the KLR webpage is attached to this

Complaint as Exhibit A.



                                             6
        25.     Moreover, beginning in or about June 2007, KLR, through Rosenzweig, routinely

sent purchase orders and procured pro forma and commercial invoices and packing slips from

numerous suppliers – almost all of which were found by, and had longstanding relationships

with, Universal – addressed to “KLR Holdings dba Universal Sourcing” and even “Eddie

Goldberg, Universal Sourcing.” Similarly, KLR issued invoices from “KLR Holdings dba

Universal Sourcing.” Apparently not content with merely pretending to be Universal, KLR,

through Rosenzweig even filled purchase orders clearly and undeniably intended for Universal,

thus directly misappropriating Universal’s business opportunities.

        26.     In addition, throughout the same period, KLR, through Rosenzweig, fraudulently

(i) purchased and imported overseas merchandise as Universal, (ii) ordered domestically-based

merchandise as Universal – on information and belief, even using Universal’s Advertising

Specialty Institute number (which has been described as the most respected and reputable

industry identifier, providing instant recognition to suppliers that a distributor is has a track

record of legitimate business dealings), (iii) used Universal’s Federal Express account number,

and (iv) on information and belief, attended industry trade shows as a representative of

Universal.

        27.     It is beyond doubt that, having worked with Universal for more than ten years,

Rosenzweig and (later) KLR had, and continue to have, knowledge of Universal’s exclusive

interest in its trade name.

        28.     Upon information and belief, KLR and Rosenzweig have made, and will continue

to make, substantial profits and gains as a result of their unlawful misappropriation of

Universal’s name and will continue to do so unless restrained by this Court.

        29.     It is thus undeniable that, notwithstanding the parties’ agreement to terminate

their affiliation, KLR and Rosenzweig continue to fraudulently and without consent promote,


                                            7
advertise, and conduct their business as if they remain affiliated with Universal – a company

with far greater experience, credibility, and standing in its industry. It is equally undeniable that

suppliers, customers, and other third parties – all of whom had previously worked with KLR and

Rosenzweig when they were affiliated with Universal – would believe that KLR and Rosenzweig

remain affiliated with Universal.

       Plaintiffs Hold Numerous Patents Issued by the United States Patent
       and Trademark Office

       30.      Universal currently offers for sale or licenses hundreds of different products,

including “Carabiner Pens,” “Carabiner Tape Measures,” and “Carabiner Tool Kits.” Each of

these products utilizes a carabiner – something typically associated with mountaineering and

rock climbing – manufactured into the item. To date, Universal has sold or licensed for sale over

one million Carabiner Pens, Carabiner Tape Measures, and Carabiner Tool Kits, each of which

(i) embodies the patents set forth below and (ii) is singularly distinct and, consequently, highly

recognizable by consumers.

       31.     Moreover, Goldberg has devoted substantial time, money, and resources to design

and obtain patents for inventions that are embodied in the Carabiner Pens, Carabiner Tape

Measures, and Carabiner Tool Kits and offered for sale by Universal and select licensees.

       32.     On April 5, 2005, United States Letters Patent No. D503,739 entitled “Writing

Implement With Carabiner,” was duly and legally issued by the United States Patent and

Trademark Office (the “USPTO”) to Goldberg as the patentee and inventor thereof. U.S. Letters

Patent No. D503,739 includes claims directed to the ornamental design for a writing implement

with carabiner. A copy of U.S. Letters Patent No. D503,739 is attached to this Complaint as

Exhibit B.

       33.     Goldberg, through Universal, has been engaged in the distribution and sale

throughout the United States of distinctively designed writing implements that embody the

                                              8
invention disclosed in the U.S. Letters Patent No. D503,739. The small size of the writing

implement does not allow for the marking of all of the patent numbers on the writing implement

itself. As a result, such patented products have molded into the plastic carabiner clasp the words

“U.S. PATENT,” a clear indication that the writing implement’s design is patented, as well as

one of the applicable utility patent numbers, as set forth below. In addition, because such writing

instruments are sold as promotional items on a wholesale basis, the writing implements carry an

appropriate patent marking for U.S. Letters Patent No. D503,739 on their packaging and in all

catalogues.

       34.     On December 17, 2005, United States Letters Patent No. 6,979,143 entitled

“Carabiner Writing Instrument,” was duly and legally issued by the USPTO to Goldberg as the

patentee and inventor thereof. A copy of U.S. Letters Patent No. 6,979,143 is attached to this

Complaint as Exhibit C.

       35.     Goldberg assigned U.S. Letters Patent No. 6,979,143 to Forever Green. Forever

Green is now the owner by assignment of the entire right, title, and interest in and to the U.S.

Letters Patent No. 6,979,143.

       36.     Forever Green, through Universal, has been engaged in the distribution and sale

throughout the United States of distinctively designed writing instruments that embody the

invention disclosed in the U.S. Letters Patent No. 6,979,143.        All such patented products

currently carry an appropriate patent marking.

       37.     On September 26, 2006, United States Letters Patent No. 7,111,349 entitled

“Carabiner Tool Assembly,” was duly and legally issued by the USPTO to Goldberg as the

patentee and inventor thereof. A copy of U.S. Letters Patent No. 7,111,349 is attached to this

Complaint as Exhibit D.




                                             9
       38.    Goldberg assigned U.S. Letters Patent No. 7,111,349 to Forever Green. Forever

Green is now the owner by assignment of the entire right, title, and interest in and to the U.S.

Letters Patent No. 7,111,349.

       39.    Forever Green, through Universal, has been engaged in the distribution and sale

throughout the United States of distinctively designed products, including tape measures and tool

kits that embody the invention disclosed in the U.S. Letters Patent No. 7,111,349. All such

patented products currently carry an appropriate patent marking.

       40.    On August 14, 2007, United States Letters Patent No. 7,254,856 entitled

“Carabiner Tool Assembly,” was duly and legally issued by the USPTO to Goldberg as the

patentee and inventor thereof. A copy of U.S. Letters Patent No. 7,254,856 is attached to this

Complaint as Exhibit E.

       41.    Goldberg assigned U.S. Letters Patent No. 7,254,856 to Forever Green. Forever

Green is now the owner by assignment of the entire right, title, and interest in and to the U.S.

Letters Patent No. 7,254,856.

       42.    Forever Green, through Universal, has been engaged in the distribution and sale

throughout the United States of distinctively designed products, including tape measures and tool

kits that embody the invention disclosed in the U.S. Letters Patent No. 7,254,856. All such

patented products currently carry an appropriate patent marking.

       43.    On November 13, 2007, United States Letters Patent No. 7,293,927 entitled

“Carabiner Writing Instrument,” was duly and legally issued by the USPTO to Goldberg as the

patentee and inventor thereof. A copy of U.S. Letters Patent No. 7,293,927 is attached to this

Complaint as Exhibit F.




                                           10
       44.     Goldberg assigned U.S. Letters Patent No. 7,293,927 to Forever Green. Forever

Green is now the owner by assignment of the entire right, title, and interest in and to the U.S.

Letters Patent No. 7,293,927.

       45.     Forever Green, through Universal, has been engaged in the distribution and sale

throughout the United States of distinctively designed writing instruments that embody the

invention disclosed in the U.S. Letters Patent No. 7,293,927. The small size of the writing

instruments, does not allow for the marking of all of the patent numbers on the writing

instrument itself. As a result, such patented products have molded into the plastic carabiner

clasp the words “U.S. PATENT,” a clear indication that the writing instrument’s design is

patented, as well as one of the applicable utility patent numbers, as set forth above. In addition,

because such writing instruments are sold as promotional items on a wholesale basis, the writing

instruments carry an appropriate patent marking for U.S. Letters Patent No. 7,293,927 on their

packaging.

       Defendants have Repeatedly Infringed Plaintiffs’ Patent Rights

       46.     As set forth above, not only do Rosenzweig and KLR unlawfully and in bad faith

continuously infringe Universal’s exclusive right to the use of its name, on information and

belief, they have deliberately done so at times in order to purchase goods they knew to be

protected by patents owned by Goldberg and Forever Green. Knowing that suppliers would sell

the patented products only to Universal, KLR, through Rosenzweig, has intentionally issued

purchase orders on behalf of “KLR Holdings dba Universal” to suppliers for products patented

by Goldberg and Forever Green.

       47.     In an even more brazen disregard for Goldberg’s and Forever Green’s

uncontestable patent rights, KLR’s current catalogue contains at least seven items that infringe

on Forever Green’s patents.


                                            11
       48.     Specifically, KLR unabashedly offers the following infringing products for sale in

its catalogue without license, consent, or authorization: Carabiner Pen (Item #U8048, p.47);

Carabiner Pen (Item #U8057, p.49); Carabiner Tool Kit (Item #U8256, p.145); Carabiner Tape

Measure (Item #U8284, p.149); Carabiner Tape Measure (Item #U8283, p.149); Carabiner Tape

Measure (Item # U8281, p.150); and Carabiner Tape Measure (Item #U8821, p.155) (together,

the “Infringing Products”).    I attach copies the relevant pages of KLR’s catalogue to this

Complaint as Exhibit G.

       49.     It is beyond doubt that, having worked with Goldberg and Universal for more

than ten years, Rosenzweig and (later) KLR had, and continue to have, knowledge of Goldberg’s

and Forever Green’s exclusive interest in their patents.

       50.     Indisputably, neither Goldberg, nor Forever Green, has authorized, consented to,

or licensed KLR to advertise, offer for sale, or sell the Infringing Products and KLR is therefore

infringing Goldberg’s and Forever Green’s patent rights.

       51.     Upon information and belief, KLR and Rosenzweig have made, and will continue

to make, substantial profits and gains as a result of their infringement of Goldberg’s and Forever

Green’s patents and will continue to do so unless restrained by this Court.

                               FIRST CLAIM FOR RELIEF
                          (FALSE DESIGNATION OF ORIGIN AND
                          FALSE ADVERTISING, 15 U.S.C. § 1125(a))

       52.     Plaintiffs reallege every allegation set forth in paragraphs 1 through 51, above.

       53.     Defendants’ promotion and advertising of themselves as Universal, or as being

affiliated with Universal, is intended or is likely to confuse, mislead, or deceive consumers, the

public, and the trade as to the sponsorship or affiliation of KLR and Rosenzweig, or is intended,

or is likely to cause such parties to believe in error that KLR’s and Rosenzweig’s use of the trade




                                            12
name “Universal Sourcing” has been authorized, sponsored, approved, endorsed or licensed by

Universal, or that KLR and Rosenzweig are in some way affiliated with Universal.

       54.     Defendants, notwithstanding Universal’s ownership of its trade name, and well-

knowing that Universal is the owner of the trade name, have knowingly, unlawfully, and in bad

faith advertised and promoted themselves under the trade name, “Universal Sourcing,” including

advertising through KLR’s website and catalogue. Moreover, Counterclaim-Defendants have

repeatedly and without consent or authorization (i) sent purchase orders and procured pro forma

and commercial invoices and packing slips from suppliers, addressed to “KLR Holdings dba

Universal Sourcing” and even “Eddie Goldberg, Universal Sourcing,” (ii) issued invoices to third

parties from “KLR Holdings dba Universal Sourcing,” (iii) on information and belief, used

Universal’s Advertising Specialty Institute number, (v) used Universal’s Federal Express

account number, and (vi) on information and belief, attended industry trade shows as a

representative of Universal.

       55.     These acts constitute false designation of origin or false and misleading

descriptions and representations of fact, all in violation of Section 43(a) of the Lanham Act (15

U.S.C. § 1125(a)).

       56.     Upon information and belief, Defendants have made and will continue to make

substantial profits and gains to which they are not entitled in law or equity.

       57.     Upon information and belief, Defendants intend to and will continue their

infringing acts unless restrained by this Court.

       58.     Defendants’ acts have damaged and will continue to damage Universal.

       59.     Universal has no adequate remedy at law.

                                 SECOND CLAIM FOR RELIEF
                               (CYBERPIRACY, 15 U.S.C. § 1125(d))

       60.     Plaintiffs reallege every allegation set forth in paragraphs 1 through 59, above.

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       61.     Defendants’     registration,   trafficking,   and   use   of     the   domain   name

http://www.klruniversalsourcing.com is intended or is likely to confuse, mislead, or deceive

consumers, the public, and the trade as to the sponsorship or affiliation of KLR and Rosenzweig,

or is intended, or is likely to cause such parties to believe in error that KLR’s and Rosenzweig’s

use of the domain name http://www.klruniversalsourcing.com has been authorized, sponsored,

approved, endorsed or licensed by Universal, or that KLR and Rosenzweig are in some way

affiliated with Universal.

       62.     Defendants, notwithstanding Universal’s ownership of its trade name, and well-

knowing that Universal is the owner of the trade name, have knowingly, unlawfully, and in bad

faith registered a domain name containing Universal’s trade name. Moreover, Defendants have

and continue to, knowingly, unlawfully, and in bad faith traffic and use such domain name.

       63.     These acts constitute cyberpiracy, in violation of Section 43(d) of the Lanham Act

(15 U.S.C. § 1125(d)).

       64.     Upon information and belief, Defendants have made and will continue to make

substantial profits and gains to which they are not entitled in law or equity.

       65.     Upon information and belief, Defendants intend to and will continue their

infringing acts unless restrained by this Court.

       66.     Defendants’ acts have damaged and will continue to damage Universal.

       67.     Universal has no adequate remedy at law.

                              THIRD CLAIM FOR RELIEF
                         (PATENT INFRINGEMENT, 35 U.S.C. § 271)

       68.     Plaintiffs reallege every allegation set forth in paragraphs 1 through 67, above.

       69.     Goldberg has the full right to enforce United States Letters Patent No. D503,739

and to bring an action for patent infringement thereof.



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       70.     Goldberg never authorized Defendants to cause to manufacture, offer for sale, or

sell products which embody the invention of such patent.

       71.     Defendants, notwithstanding the rights of Goldberg, as set forth above, have

infringed United States Letters Patent No. D503,739 by causing to manufacture, offering for sale

and selling Carabiner Pens, which embody the invention of such patent, in disregard of the rights

of Goldberg under 35 U.S.C. §§ 271(a)-(c).

       72.     Such infringing activities have resulted in the production, distribution, and sale of

infringing products to retail stores, businesses, and the public.

       73.     The acts of the Defendants set forth above have caused and, unless enjoined by

this Court, are likely to continue to cause Goldberg to suffer irreparable harm through diversion

of sales, loss of goodwill, and diminution of the value of Goldberg’s patent.

       74.     As a result, Goldberg has suffered monetary damages as a result of Defendants’

actions in an amount to be determined at trial, but if such actions are continued, in an amount

believed to be in excess of $75,000.

       75.     Goldberg has no adequate remedy at law.

                             FOURTH CLAIM FOR RELIEF
                        (PATENT INFRINGEMENT, 35 U.S.C. § 271)

       76.     Plaintiffs reallege every allegation set forth in paragraphs 1 through 75, above.

       77.     Forever Green has the full right to enforce United States Letters Patent No.

6,979,143 and to bring an action for patent infringement thereof.

       78.     Forever Green has never authorized Defendants to cause to manufacture, offer for

sale, or sell products which embody the invention of such patent.

       79.     Defendants, notwithstanding the rights of Forever Green as set forth above, have

infringed United States Letters Patent No. 6,979,143 by causing to manufacture, offering for sale



                                              15
and selling Carabiner Pens, which embody the invention of such patent, in disregard of the rights

of Forever Green under 35 U.S.C. §§ 271(a)-(c).

       80.     Such infringing activities have resulted in the production, distribution, and sale of

infringing products to retail stores, businesses, and the public.

       81.     The acts of the Defendants set forth above have caused and, unless enjoined by

this Court, are likely to continue to cause Forever Green to suffer irreparable harm through

diversion of sales, loss of goodwill, and diminution of the value of Forever Green’s patent.

       82.     As a result, Forever Green has suffered monetary damages as a result of

Defendants’ actions in an amount to be determined at trial, but if such actions are continued, in

an amount believed to be in excess of $75,000.

       83.     Forever Green has no adequate remedy at law.

                              FIFTH CLAIM FOR RELIEF
                        (PATENT INFRINGEMENT, 35 U.S.C. § 271)

       84.     Plaintiffs reallege every allegation set forth in paragraphs 1 through 83, above.

       85.     Forever Green has the full right to enforce United States Letters Patent No.

7,111,349 and to bring an action for patent infringement thereof.

       86.     Forever Green has never authorized Defendants to cause to manufacture, offer for

sale, or sell products which embody the invention of such patent.

       87.     Defendants, notwithstanding the rights of Forever Green as set forth above, have

infringed United States Letters Patent No. 7,111,349 by causing to manufacture, offering for sale

and selling Carabiner Tape Measures and Carabiner Tool Kits, which embody the invention of

such patent, in disregard of the rights of Forever Green under 35 U.S.C. §§ 271(a)-(c).

       88.     Such infringing activities have resulted in the production, distribution, and sale of

infringing products to retail stores, businesses, and the public.



                                              16
       89.     The acts of the Defendants set forth above have caused and, unless enjoined by

this Court, are likely to continue to cause Forever Green to suffer irreparable harm through

diversion of sales, loss of goodwill, and diminution of the value of Forever Green’s patent.

       90.     As a result, Forever Green has suffered monetary damages as a result of

Defendants’ actions in an amount to be determined at trial, but if such actions are continued, in

an amount believed to be in excess of $75,000.

       91.     Forever Green has no adequate remedy at law.

                              SIXTH CLAIM FOR RELIEF
                        (PATENT INFRINGEMENT, 35 U.S.C. § 271)

       92.     Plaintiffs reallege every allegation set forth in paragraphs 1 through 91, above.

       93.     Forever Green has the full right to enforce United States Letters Patent No.

7,254,856 and to bring an action for patent infringement thereof.

       94.     Forever Green has never authorized Defendants to cause to manufacture, offer for

sale, or sell products which embody the invention of such patent.

       95.     Defendants, notwithstanding the rights of Forever Green as set forth above, have

infringed United States Letters Patent No. 7,254,856 by causing to manufacture, offering for sale

and selling Carabiner Tape Measures and Carabiner Tool Kits, which embody the invention of

such patent, in disregard of the rights of Forever Green under 35 U.S.C. §§ 271(a)-(c).

       96.     Such infringing activities have resulted in the production, distribution, and sale of

infringing products to retail stores, businesses, and the public.

       97.     The acts of the Defendants set forth above have caused and, unless enjoined by

this Court, are likely to continue to cause Forever Green to suffer irreparable harm through

diversion of sales, loss of goodwill, and diminution of the value of Forever Green’s patent.




                                              17
       98.     As a result, Forever Green has suffered monetary damages as a result of

Defendants’ actions in an amount to be determined at trial, but if such actions are continued, in

an amount believed to be in excess of $75,000.

       99.     Forever Green has no adequate remedy at law.

                            SEVENTH CLAIM FOR RELIEF
                        (PATENT INFRINGEMENT, 35 U.S.C. § 271)

       100.    Plaintiffs reallege every allegation set forth in paragraphs 1 through 99, above.

       101.    Forever Green has the full right to enforce United States Letters Patent No.

7,293,927 and to bring an action for patent infringement thereof.

       102.    Forever Green has never authorized Defendants to cause to manufacture, offer for

sale, or sell products which embody the invention of such patent.

       103.    Defendants, notwithstanding the rights of Forever Green as set forth above, have

infringed United States Letters Patent No. 7,293,927 by causing to manufacture, offering for sale

and selling Carabiner Pens, which embody the invention of such patent, in disregard of the rights

of Forever Green under 35 U.S.C. §§ 271(a)-(c).

       104.    Such infringing activities have resulted in the production, distribution, and sale of

infringing products to retail stores, businesses, and the public.

       105.    The acts of the Defendants set forth above have caused and, unless enjoined by

this Court, are likely to continue to cause Forever Green to suffer irreparable harm through

diversion of sales, loss of goodwill, and diminution of the value of Forever Green’s patent.

       106.    As a result, Forever Green has suffered monetary damages as a result of

Defendants’ actions in an amount to be determined at trial, but if such actions are continued, in

an amount believed to be in excess of $75,000.

       107.    Forever Green has no adequate remedy at law.



                                              18
       WHEREFORE, Plaintiffs respectfully request that this Court enter judgment against

Defendants as follows:

       A.     On the first claim for relief, for false designation of origin and false advertising:

              1.      finding that Defendants have violated Section 43(a) of the Lanham Act

              (15 U.S.C. § 1125(a));

              2.      that Plaintiffs recover from Defendants all of Defendants’ profits and all

              damages, including lost profits sustained by Plaintiffs as a result of Defendants’

              wrongful acts, and such other compensatory damages as the Court determines to

              be fair and appropriate, pursuant to 15 U.S.C. § 1117(a);

              3.      granting an injunction, pursuant to Rule 65 of the Federal Rules of Civil

              Procedure preliminarily and permanently restraining and enjoining Defendants,

              their officers, agents, employees, and attorneys, and all those persons or entities in

              active concert or participation with them from:

                   i. manufacturing, importing, advertising, marketing, promoting, supplying,

                      distributing, offering for sale, or selling any products under the name

                      Universal Sourcing, or any other name substantially similar or confusing

                      thereto, and engaging in any other activity constituting an infringement of

                      any of Universal’s rights in its trade name; and

                   ii. engaging in any other activity constituting unfair competition, false

                      advertising, false designation, or false representation with Universal, or

                      acts and practices that deceive consumers, the public, and/or trade,

                      including without limitation, the use of designations, design elements, and

                      trade names associated with Universal; and




                                            19
     4.     requiring Defendants to file with this Court and to serve on Plaintiffs

     within thirty days after entry of the injunction a report in writing under oath

     setting forth in detail the manner and form in which Defendants have complied

     with the injunction.

B.   On the second claim for relief, for cyberpiracy:

     1.     finding that Defendants have violated Section 43(d) of the Lanham Act

     (15 U.S.C. § 1125(d));

     2.     that Plaintiffs recover from Defendants all of Defendants’ profits and all

     damages, including lost profits sustained by Plaintiffs as a result of Defendants’

     wrongful acts, and such other compensatory damages as the Court determines to

     be fair and appropriate, pursuant to 15 U.S.C. § 1117(a); and

     3.     requiring that Defendants forfeit, cancel, or transfer to Plaintiffs the

     domain name http://www.klruniversalsourcing.com.

C.   On the third claim for relief, for patent infringement:

     1.     finding that United States Letters Patent No. D503,739 to be valid and

     enforceable and to have been infringed by Defendants pursuant to 35 U.S.C. §

     271;

     2.     that Plaintiffs recover from Defendants all of Defendants’ profits and all

     damages, including lost profits sustained by Plaintiffs as a result of Defendants’

     wrongful acts, and such other compensatory damages as the Court determines to

     be fair and appropriate, pursuant to 35 U.S.C. § 284;

     3.     that Plaintiffs recover from Defendants three times the amount of

     Defendants’ profits or Plaintiffs’ damages, whichever is greater, for willful

     infringement pursuant to 35 U.S.C. § 284;


                                   20
     4.     granting an injunction, pursuant to Rule 65 of the Federal Rules of Civil

     Procedure and 35 U.S.C. § 283, preliminarily and permanently restraining and

     enjoining Defendants, their officers, agents, employees, and attorneys, and all

     those persons or entities in active concert or participation with them from

     manufacturing, causing to manufacture, assembling, importing, advertising,

     marketing, promoting, supplying, distributing, using, offering for sale, or selling

     any product utilizing United States Letters Patent No. D503,739 or any other

     element substantially similar or confusing thereto, including, without limitation,

     the Infringing Products, and engaging in any other activity constituting an

     infringement of any of Universal’s rights in the United States Letters Patent

     Number set forth above;

     5.     requiring Defendants to recall from any distributors, retailers, or

     customers, at Defendants’ sole cost, and to deliver to Plaintiffs for destruction or

     other disposition all Infringing Products, or any other product utilizing United

     States Letters Patent No. D503,739, including all advertisements, promotional and

     marketing materials, as well as the means of making same; and

     6.     requiring Defendants to file with this Court and to serve on Plaintiffs

     within thirty days after entry of the injunction a report in writing under oath

     setting forth in detail the manner and form in which Defendants have complied

     with the injunction.

D.   On the fourth claim for relief, for patent infringement:

     1.     finding that United States Letters Patent No. 6,979,143 to be valid and

     enforceable and to have been infringed by Defendants pursuant to 35 U.S.C. §

     271;


                                  21
2.     that Plaintiffs recover from Defendants all of Defendants’ profits and all

damages, including lost profits sustained by Plaintiffs as a result of Defendants’

wrongful acts, and such other compensatory damages as the Court determines to

be fair and appropriate, pursuant to 35 U.S.C. § 284;

3.     that Plaintiffs recover from Defendants three times the amount of

Defendants’ profits or Plaintiffs’ damages, whichever is greater, for willful

infringement pursuant to 35 U.S.C. § 284;

4.     granting an injunction, pursuant to Rule 65 of the Federal Rules of Civil

Procedure and 35 U.S.C. § 283, preliminarily and permanently restraining and

enjoining Defendants, their officers, agents, employees, and attorneys, and all

those persons or entities in active concert or participation with them from

manufacturing, causing to manufacture, assembling, importing, advertising,

marketing, promoting, supplying, distributing, using, offering for sale, or selling

any product utilizing United States Letters Patent No. 6,979,143 or any other

element substantially similar or confusing thereto, including, without limitation,

the Infringing Products, and engaging in any other activity constituting an

infringement of any of Universal’s rights in the United States Letters Patent

Number set forth above;

5.     requiring Defendants to recall from any distributors, retailers, or

customers, at Defendants’ sole cost, and to deliver to Plaintiffs for destruction or

other disposition all Infringing Products, or any other product utilizing United

States Letters Patent No. 6,979,143, including all advertisements, promotional and

marketing materials, as well as the means of making same; and




                             22
     6.     requiring Defendants to file with this Court and to serve on Plaintiffs

     within thirty days after entry of the injunction a report in writing under oath

     setting forth in detail the manner and form in which Defendants have complied

     with the injunction.

E.   On the fifth claim for relief, for patent infringement:

     1.     finding that United States Letters Patent No. 7,111,349 to be valid and

     enforceable and to have been infringed by Defendants pursuant to 35 U.S.C. §

     271;

     2.     that Plaintiffs recover from Defendants all of Defendants’ profits and all

     damages, including lost profits sustained by Plaintiffs as a result of Defendants’

     wrongful acts, and such other compensatory damages as the Court determines to

     be fair and appropriate, pursuant to 35 U.S.C. § 284;

     3.     that Plaintiffs recover from Defendants three times the amount of

     Defendants’ profits or Plaintiffs’ damages, whichever is greater, for willful

     infringement pursuant to 35 U.S.C. § 284;

     4.     granting an injunction, pursuant to Rule 65 of the Federal Rules of Civil

     Procedure and 35 U.S.C. § 283, preliminarily and permanently restraining and

     enjoining Defendants, their officers, agents, employees, and attorneys, and all

     those persons or entities in active concert or participation with them from

     manufacturing, causing to manufacture, assembling, importing, advertising,

     marketing, promoting, supplying, distributing, using, offering for sale, or selling

     any product utilizing United States Letters Patent No. 7,111,349 or any other

     element substantially similar or confusing thereto, including, without limitation,

     the Infringing Products, and engaging in any other activity constituting an


                                   23
     infringement of any of Universal’s rights in the United States Letters Patent

     Number set forth above;

     5.     requiring Defendants to recall from any distributors, retailers, or

     customers, at Defendants’ sole cost, and to deliver to Plaintiffs for destruction or

     other disposition all Infringing Products, or any other product utilizing United

     States Letters Patent No. 7,111,349, including all advertisements, promotional and

     marketing materials, as well as the means of making same; and

     6.     requiring Defendants to file with this Court and to serve on Plaintiffs

     within thirty days after entry of the injunction a report in writing under oath

     setting forth in detail the manner and form in which Defendants have complied

     with the injunction.

F.   On the sixth claim for relief, for patent infringement:

     1.     finding that United States Letters Patent No. 7,254,856 to be valid and

     enforceable and to have been infringed by Defendants pursuant to 35 U.S.C. §

     271;

     2.     that Plaintiffs recover from Defendants all of Defendants’ profits and all

     damages, including lost profits sustained by Plaintiffs as a result of Defendants’

     wrongful acts, and such other compensatory damages as the Court determines to

     be fair and appropriate, pursuant to 35 U.S.C. § 284;

     3.     that Plaintiffs recover from Defendants three times the amount of

     Defendants’ profits or Plaintiffs’ damages, whichever is greater, for willful

     infringement pursuant to 35 U.S.C. § 284;

     4.     granting an injunction, pursuant to Rule 65 of the Federal Rules of Civil

     Procedure and 35 U.S.C. § 283, preliminarily and permanently restraining and


                                   24
     enjoining Defendants, their officers, agents, employees, and attorneys, and all

     those persons or entities in active concert or participation with them from

     manufacturing, causing to manufacture, assembling, importing, advertising,

     marketing, promoting, supplying, distributing, using, offering for sale, or selling

     any product utilizing United States Letters Patent No. 7,254,856 or any other

     element substantially similar or confusing thereto, including, without limitation,

     the Infringing Products, and engaging in any other activity constituting an

     infringement of any of Universal’s rights in the United States Letters Patent

     Number set forth above;

     5.     requiring Defendants to recall from any distributors, retailers, or

     customers, at Defendants’ sole cost, and to deliver to Plaintiffs for destruction or

     other disposition all Infringing Products, or any other product utilizing United

     States Letters Patent No. 7,254,856, including all advertisements, promotional and

     marketing materials, as well as the means of making same; and

     6.     requiring Defendants to file with this Court and to serve on Plaintiffs

     within thirty days after entry of the injunction a report in writing under oath

     setting forth in detail the manner and form in which Defendants have complied

     with the injunction.

G.   On the seventh claim for relief, for patent infringement:

     1.     finding that United States Letters Patent No. 7,293,927 to be valid and

     enforceable and to have been infringed by Defendants pursuant to 35 U.S.C. §

     271;

     2.     that Plaintiffs recover from Defendants all of Defendants’ profits and all

     damages, including lost profits sustained by Plaintiffs as a result of Defendants’


                                  25
wrongful acts, and such other compensatory damages as the Court determines to

be fair and appropriate, pursuant to 35 U.S.C. § 284;

3.     that Plaintiffs recover from Defendants three times the amount of

Defendants’ profits or Plaintiffs’ damages, whichever is greater, for willful

infringement pursuant to 35 U.S.C. § 284;

4.     granting an injunction, pursuant to Rule 65 of the Federal Rules of Civil

Procedure and 35 U.S.C. § 283, preliminarily and permanently restraining and

enjoining Defendants, their officers, agents, employees, and attorneys, and all

those persons or entities in active concert or participation with them from

manufacturing, causing to manufacture, assembling, importing, advertising,

marketing, promoting, supplying, distributing, using, offering for sale, or selling

any product utilizing United States Letters Patent No. 7,293,927 or any other

element substantially similar or confusing thereto, including, without limitation,

the Infringing Products, and engaging in any other activity constituting an

infringement of any of Universal’s rights in the United States Letters Patent

Number set forth above;

5.     requiring Defendants to recall from any distributors, retailers, or

customers, at Defendants’ sole cost, and to deliver to Plaintiffs for destruction or

other disposition all Infringing Products, or any other product utilizing United

States Letters Patent No. 7,293,927, including all advertisements, promotional and

marketing materials, as well as the means of making same; and

6.     requiring Defendants to file with this Court and to serve on Plaintiffs

within thirty days after entry of the injunction a report in writing under oath




                             26
                  setting forth in detail the manner and form in which Defendants have complied

                  with the injunction.

          H.      Directing such other and further relief as the Court may deem appropriate to

prevent consumers, the public, andlor the trade from deriving any erroneous impression that any

product at issue in this action that has been manufactured, caused to be manufactured, imported,

advertised, marketed, promoted, supplied, distributed, offered for sale, or sold by Defendants has

been authorized by Plaintiffs, or is related in any way with Plaintiffs andlor their products.

          1.      Requiring that Defendants account to Plaintiffs for all gains, profits, and

advantages derived from Defendants' wrongful acts.

          J.      Awarding Plaintiffs their costs, attorney's fees, and expenses to the full extent

provided by 35 U.S.c. § 285 and 15 U.S.C. § 1117.

          K.     Awarding Plaintiffs pre-judgment interest on any monetary award made part of

the judgment against Defendants pursuant to 35 U.S.C. § 285.

          L.     Awarding Plaintiffs such additional and further relief as the Court deems just and

proper.

                                           JURY DEMAND

          Plaintiffs demand a trial by jury.

Dated: May 18,2011                                    CHARLES J. KLEINER, ESQ.
                                                      Attorneys for Defendants and Counterclaim-

                                                      PI~                        ,~
                                                      Charles J. Kleiner,   Eq--,-,=-=-=
                                                      Co-Counsel:
                                                      Jay S. Auslander, Esq.
                                                      Adam (Aari) Itzkowitz, Esq.
                                                      Wilk Auslander LLP
                                                      675 Third Avenue
                                                        ew York, ew York 10017
                                                      (212) 421-2233

				
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