IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.

12-cv-2780 BURRIS COMPANY, INC., a Delaware corporation, Plaintiff, v. AIM SPORTS, INC. a California corporation, Defendant.

COMPLAINT AND JURY DEMAND

Plaintiff, Burris Company, Inc. (Burris), for its Complaint against Defendant, Aim

Sports, Inc., (Aim Sports), states and alleges as follows: I. 1. PARTIES

Burris is a Delaware corporation, incorporated under the laws of Delaware.

Burris has a principal place of business at 920 54th Avenue, #200, Greeley, CO 80634, United States. 2. On information and belief, Aim Sports is a California corporation, incorporated

under the laws of California. Aim Sports has a principal place of business at 1321 E. Chief Privado, Ontario, CA 91761, United States. 3. On information and belief, Ying Cui is the registered agent of Aim Sports. Ying

Cui has a registered address at 1321 E. Chief Privado, Ontario, CA 91761, United States. II. JURISDICTION AND VENUE

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This Court has subject matter jurisdiction under 28 U.S.C. 1121 (action arising

under the Lanham Act); 28 U.S.C. 1331 (federal question); and 28 U.S.C. 1338(a) (any Act of Congress relating to patents or trademarks); 28 U.S.C. 1338(b) (action asserting claim of unfair competition joined with a substantial and related claim under the trademark laws); and 28 U.S.C. 1367 (supplemental jurisdiction). 5. This Court has personal jurisdiction over Aim Sports under 35 U.S.C. 271 and

15 U.S.C. 1125 because Aim Sports has committed and continues to commit acts of infringement in violation of this statute. Aim Sports places infringing products in the stream of commerce with the knowledge or understanding that such products are sold in the State of Colorado. 6. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391 (b)-(c)

because Aim Sports engages in business in this District, offering for sale products that infringe Burris patent and trade dress. In addition, venue is proper because Burris principal place of business is in this District and Burris has suffered harm in this District. III. 7. BACKGROUND

Burris is a leading innovator in the shooting sports industry, specifically with

regard to riflescopes, mounts, and other firearm accessories. Burris cutting-edge products are sold around the globe and are associated with exceptional quality and performance on an international level. 8. Burris has invested significant time and money protecting its intellectual property

rights. Burris has pursued broad intellectual property protection, filing numerous patent and trademark applications protecting its firearm accessories. As a result, Burris has a multitude of

issued patents and trademarks covering its innovative products in the riflescope, mount, and firearm accessory space. 9. One of these issued patents is U.S. Patent No. D632,753 (the D753 Design

Patent). A copy of the D753 Design Patent is appended to this Complaint. (Exhibit A). The D753 Design Patent was filed on May 4, 2009 and issued on February 15, 2011. Burris owns all rights, title, and interest in the D753 Design Patent. 10. The D753 Design Patent claims an ornamental design for a telescopic sight

mount. The ornamental design is depicted in Figures 1-8 of the D753 Design Patent. As depicted in the Figures, the D753 Design Patent includes various ornamental features, including but not limited to the three beveled slots protruding from each of the rings and the angled platform on which the rings are mounted. 11. The ornamental features of the D753 Design Patent are embodied in, at least, the

AR-P.E.P.R. Mount sold by Burris. A screenshot of the AR-P.E.P.R. Mount is appended to this Complaint. (Exhibit B). 12. Burris also holds trade dress protection in the design and appearance of the AR-

P.E.P.R. Mount (hereinafter referred to as the Burris mount). Burris has engaged in extensive and consistent advertising, portion and sales, throughout the United States, associating the Burris Mount with Burris. As a result of Burris efforts, Burris mount has acquired secondary meaning. 13. The trade dress of the Burris mount is radically different from other mounts.

Appended to this Complaint are exemplary mounts sold by other firearm accessory manufacturers, including Armory Airsoft Tech (Exhibit C1), Cabelas World Foremost Outfitter (Exhibit C2), and Nikon Hunting (Exhibit C2). The protected features of the Burris

mount, namely the three beveled slots protruding from each of the rings and the angled platform on which the rings are mounted, have a trade dress distinct from, at least, the appended exemplary mounts. 14. Each of the features of the Burris mount is distinct and serves to identify Burris as

the source of the Burris mount. Moreover, none of these features are functional. 15. On information and belief, Aim Sports, was established in 2007 and produces and

manufactures scopes and accessories for the hunting/shooting industry under the AIM brand. Particularly, Aim Sports manufactures the Tactical 30mm Cantilever Scope Mount (product number SKU: MTCR01) and the Tactical 1 Cantilever Scope Mount (product number SKU: MTCR30) (hereinafter collectively referred to as the Aim Sports Mounts). Appended to this Complaint are photographs of the Tactical 30 mm Cantilever Scope Mount. (Exhibit D1-D2). 16. On information and belief, Aim Sports offers the Aim Sports Mounts for sale on

its website, http://www.aimsportsinc.com/catalog/index.php?pg=11&l=product_list&c=11. A screenshot of the Aim Sports website is appended to this Complaint. (Exhibit E). 17. On information and belief, Aim Sports sells the Aim Sports Mounts at various

retailers, including Hales Sporting Goods in Colorado. A screenshot of the list of retailers used by Aim Sports is appended to this Complaint. (Exhibit F). 18. Both of the Aim Sports Mounts incorporate protected elements of the Burris

mount. Both of the Aim Sports Mounts include three beveled slots protruding from each of the rings. In addition, each of the Aim Sports Mounts includes an angled platform on which the rings are mounted. These features of the Aim Sports Mounts infringe the D753 Design Patent.

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Aim Sports has misappropriated Burris patented mount design in the accused

products. The below side by side comparison illustrates FIG.4 of the D753 Design Patent as compared to the Tactical 30mm Cantilever Scope Mount.

D753 Design Patent

Tactical 30 mm Cantilever Scope Mount

20.

Both of the Aim Sports Mounts also infringe Burris protected trade dress. As

illustrated by the below side by side comparison, the Aim Sports Mounts misappropriate the protected three beveled slots protruding from each of the rings and the angled platform on which the rings are mounted. Burris AR-P.E.P.R. Mount Aim Sports Tactical 1 Cantilever Scope Mount

Burris AR-P.E.P.R. Mount

Aim Sports Tactical 30mm Cantilever Scope Mount

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On information and belief, Aim Sports has been aware of the D753 Design

Patent since, at least, September 21, 2012. Efforts to resolve this matter with Aim Sports have been unsuccessful. Aim Sports has continued to infringe the D753 Design Patent without Burris authorization or permission. 22. Aim Sports infringement of the D753 Design Patent has harmed and will

continue to harm Burris unless enjoined by this Court. 23. Burris has developed considerable consumer goodwill in association with its

products. Aim Sports use of Burris protected trade dress impinges on this association and harms the goodwill that Burris has strived so hard to cultivate by causing, or being likely to cause confusion as to affiliation of Aim Sports with Burris. COUNT I Federal Unfair Competition Lanham Act 43(a), 15 U.S.C. 1125(a) 24. 25. Burris restates and incorporates by reference the allegations in paragraphs 1-23. Burris is the owner of all right and title to the distinctive Burris mount trade dress.

The Burris mount trade dress, as embodied in the AR-P.E.P.R. Mount, has acquired secondary meaning, and is not functional.

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Burris extensive promotion of the Burris mount trade dress has results in Burris

acquisition of valuable, legally protected rights as well as considerable consumer goodwill. 27. Aim Sports mounts, namely the Tactical 30mm Cantilever Scope Mount and

the Tactical 1 Cantilever Scope Mount misappropriate the Burris mount trade dress by mimicking several elements of that trade dress. 28. Aim Sports unauthorized use of Burris trade dress in connection with firearm

accessories is a false designation of origin, false or misleading description of fact, and a false or misleading representation of fact. 29. Aim Sports unauthorized use of Burris trade dress in connection with firearm

accessories has caused or is likely to cause confusion, mistake, and deception as to the affiliation, connection, and association of Aim Sports with Burris and/or as to the origin, sponsorship, or approval of Aim Sports actions by Burris. 30. Aim Sports unlawful actions have caused, and will continue to cause, Burris

irreparable harm unless enjoined as provided under 15 U.S.C. 1116(a). 31. Aim Sports has profited from their unlawful actions and have been unjustly

enriched to the detriment of Burris. Aim Sports unlawful actions have caused Burris monetary damage and Burris supply seeks Aim Sports profits, damages as may be proved and costs, all as provided in 15 U.S.C. 1117(a), in an amount presently unknown, but in an amount to be determined at trial. COUNT II Deceptive Trade Practices Colorado Consumer Protection Act Colo. Rev. Stat. 6-1-113 32. Burris restates and incorporates by reference the allegations in Paragraphs 1-31.

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Burris has protectable prior rights in the Burris mount trade dress. The Burris

mount trade dress is not functional and is acquired secondary meaning through Burris extensive promotion and advertising. 34. Aim Sports use of Burris mount trade dress in connection with firearm

accessories constitutes a deceptive trade practice. 35. Aim Sports unauthorized use of the Burris mount trade dress is likely to

significantly impacted the public, causing actual confusion, mistake, and deception as to the affiliation, connection, and association of Aim Sports with Burris and as to the origin, sponsorship, or approval of Aim Sports actions by Burris. 36. Aim Sports unlawful actions have caused, and will continue to cause, irreparable

harm to Burris business and goodwill unless enjoined under Colo. Rev. Stat. 6-1 -113(2). COUNT III Infringement of the D753 Design Patent 37. 38. Burris restates and incorporates by reference the allegations of Paragraphs 1-36. Aim Sports infringes and continues to infringe the D753 Design Patent by using,

selling and/or offering to sell in the United States, and/or importing in the United States one or more of the Aims Sports mounts identified in this Complaint, which embody the design covered by the D753 Design Patent. Aim Sports infringing activities violate 35 U.S.C. 271. COUNT IV Unjust Enrichment 39. Burris restates and incorporates by reference the allegations of Paragraphs 1-38.

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As a result of the conduct alleged herein, Aim Sports has been unjustly enriched

to Burris detriment. Burris seeks an accounting and disgorgement of all ill-gotten gains and profits resulting from Aim Sports inequitable activities. COUNT V Common Law Unfair Competition 41. 42. Burris restates and incorporates by reference the allegations in Paragraphs 1-40. Aim Sports unlawful use of Burris mount trade dress in connection with firearm

accessories is unfair competition. 43. Aim Sports unauthorized use of Burris mount trade dress in connection with

firearm accessories is likely to cause confusion, mistake, and deception as to the affiliation, connection, and association of Aim Sports with Burris mount trade dress as to the origin, sponsorship, or approval of Aim Sports actions by Burris. RELIEF REQUESTED WHEREFORE, Burris demands a judgment in its favor and against Aim Sports, and requests that this Court: A. B. Issue a judgment that Aim Sports has infringed the D753 Design Patent. Issue a preliminary and a permanent injunction enjoining Aim Sports and its

officers, directors, agents, servants, employees, affiliate, attorneys, and all others acting in privity or in concert with them, from further acts of infringement of the D753 Design Patent. C. Issue a judgment awarding Burris all damages adequate to compensate for Aim

Sports infringement of the D753 Design Patent, and in no event less than a reasonable royalty for Aim Sports acts of infringement including all pre-judgment and post-judgment interest at the maximum rate permitted by law.

D.

Issue a preliminary and permanent injunction enjoining Aim Sports and its

officers, directors, agents, servants, employees, affiliate, attorneys, and all others acting in privity or in concert with them, from directly or indirectly infringing the Burris mount trade dress; from a passing off Aim Sports products as being associated with and or sponsored or affiliated with Burris from committing any other unfair business practices directed toward obtaining for themselves the business and customers of Burris; and from committing any other unfair business practices directed towards devaluing or diminishing the brand or business of Burris. E. Award Burris with actual damages suffered by Burris as a result of Aim Sports

unlawful conduct, in an amount to be proven at trial. F. G. Issue an accounting of Aim Sports profits pursuant to 35. U.S.C. 284; Award damages, interest, costs, lost profits, and attorneys fees resulting from the

Defendants tortious activities under Colo. Rev. Stat. 6-1-113(2); H. Provide any further relief as this Court may deem equitable and proper. JURY DEMAND Burris demands trial to a jury on all issues so triable. DATED: October 19, 2012 Respectfully submitted, s/ Gregg I. Anderson Gregg I. Anderson, Esq. Dana P. Jozefczyk Merchant & Gould P.C. 1050 Seventeenth Street Suite 1950 Denver, CO 80265 Telephone: (303) 357-1670 Facsimile: (303) 357-1671 Email: ganderson@merchantgould.com ATTORNEYS FOR PLAINTIFF BURRIS COMPANY, INC. 10