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

WYERS, and WYERS PRODUCTS GROUP, INC., a Colorado corporation, Plaintiffs, v. R. M. INDUSTRIES, INC., a Missouri corporation, Defendant.

COMPLAINT FOR PATENT INFRINGEMENT AND JURY DEMAND

COME NOW plaintiffs Philip W. Wyers and Wyers Products Group, Inc. (Plaintiffs), and for their Complaint against defendant R. M. Industries, Inc. (Defendant), allege as follows: JURISDICTION AND VENUE 1. Plaintiff Philip W. Wyers (Mr. Wyers) is the inventor and owner of the patents-

in-suit. Mr. Wyers is a resident of the State of Colorado. 2. Plaintiff Wyers Products Group, Inc. (Wyers Products) is a Colorado

corporation with its principal place of business at 6770 S. Dawson Circle, Suite 200, Centennial, Colorado 80112. Mr. Wyers is the owner and President of Wyers Products. 3. Wyers Products is the exclusive assignee of the rights conferred to Mr. Wyers

under the 795 Patent. 4. On information and belief, defendant R. M. Industries, Inc. is a Missouri

corporation with its principal place of business at P. O. Box 485, Purdy, Missouri 65734.

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Defendant, and/or its agents, subsidiaries and affiliates, upon information and

belief, at all relevant times have and continue to conduct business in the State of Colorado, through, among other channels of commerce, retailers including, but not limited to, Bass Pro Shops, and through its website, www.rmind.com. infringement in the State of Colorado. 6. This Court has jurisdiction over this civil action pursuant to 28 U.S.C. 1331, 28 Defendant has also committed acts of

U.S.C. 1332 and 28 U.S.C. 1338. 7. Venue is appropriate in this District pursuant to 28 U.S.C. 1391 and 28 U.S.C.

1400 since the Defendant has and continues to commit acts of infringement and conduct business in the State of Colorado and this judicial district. GENERAL ALLEGATIONS 8. Mr. Wyers created, designed and invented a locking rod device and was issued

United States Patent No. D428,795 (the 795 Patent) on or about August 1, 2000. A copy of the 795 Patent is attached hereto as Exhibit 1 and incorporated herein. 9. Exhibits 1. 10. 11. Mr. Wyers has assigned all rights to the '795 Patent to Wyers Products. As exclusive assignee of the rights conferred by the '795 Patent, Wyers Products The 795 Patent claims an ornamental design for a locking rod device as shown in

manufactures, markets, imports and sells products covered by these patents under the trade name Trimax. For the past two decades, Mr. Wyers and Wyers Products have worked to cement Trimax as the brand associated with true innovation, development and manufacture of the worlds toughest locks.

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Mr. Wyers and Wyers Products lock design and mechanisms share an overall

unique and distinctive configuration, appearance and feel that serves to identify Trimax and Wyers Products as their point of origin. The Wyers Trade Dress consists of the image and overall appearance of Trimax products. In particular, Trimax products are characterized by their elegant and unique designs that incorporate the Wyers Trade Dress. 13. In addition to its overall look and feel, the Wyers Trade Dress also includes one or

more of the following elements: (a) A barbell-shaped lock with a stop portion on one end, a locking head on

the other end, and a shank portion which passes through the apertures of the towing hitch receiver and towball mount or coupler; (b) (c) (d) Distinctive edges on the outer edges of the stop portion and locking head; Distinctive edges on the inner edges of the stop portion and locking head; Distinctive strips or bands of knurling on the stop portion and locking

head, located nearest to the shank portion; and (e) A distinctive rubberized or other flexible cap on the locking head that

covers the keyhole of the lock an embossed or raised.

14.

The Wyers Trade Dress is non-functional and serves to distinguish Trimax

products from competitive products. The Wyers Trade Dress is ornamental. 15. Through Mr. Wyers and Wyers Products long use of the Wyers Trade Dress,

consumers have come to associate it with a single source and use it as source indicia.
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Since filing for design patent coverage in October of 1997, the appearance of

Trimax barbell locks have secured secondary meaning through the continuous and consistent marketing of the Wyers Trade Dress. Today, retail buyers and consumers alike associate the Wyers Trade Dress exclusively with Trimax. 17. Defendant, itself and through its respective divisions, subsidiaries and/or agents is

engaged in the business of manufacturing, marketing, distributing and selling receiver and coupler locks that infringe the '795 Patent and the Wyers Trade Dress (the Infringing Products). 18. On August 4, 2004, Wyers Products placed Defendant on notice that its receiver

locks and coupler locks infringe the 795 Patent. No response was received from Defendant and no appreciable change was made to the Infringing Products. 19. Despite notice of infringement, Defendant has continued to infringe '795 Patent

and is currently infringing the Wyers Trade Dress. 20. It is impossible to differentiate between bona-fide Trimax products and

corresponding Infringing Products sold by Defendant. The only readily-apparent difference between such Infringing Products and Trimax products is that Wyers Products affixes the Trimax logo on the removable, flexible cap on the locking head of its products, while Defendants corresponding cap is without adornment. The overall configuration and appearance of

Defendants Infringing Products is otherwise virtually identical to the Wyers Trade Dress of corresponding Trimax products. FIRST CLAIM FOR RELIEF Patent Infringement 21. Plaintiffs incorporate and restate the foregoing allegations as set forth above as

though fully set forth herein.

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Since at least August 2004, and likely earlier, Defendant, and/or its agents, was

manufacturing, distributing, marketing and selling the Infringing Products via its distribution channels throughout various portions of the United States, including in the state of Colorado. Defendant has marketed and sold the Infringing Products under a trade name of Rite-Hite Security, among other things. Defendant currently sells its Infringing Products through Bass Pro Shops and other major retail operations in Colorado and the United States. 23. Internet. 24. Defendants Infringing Products identically mirror the ornamental designs Defendant currently sells, and has in past sold, the Infringing Products on the

disclosed in the '795 Patent. 25. The ordinary observer would justifiably believe that the Infringing Products

embody the novel features of the '795 Patent. 26. The ordinary observer with knowledge of the prior art, giving such attention as a

purchaser usually gives, would mistake the Infringing Products for the designs disclosed in the '795 Patent. 27. Defendants Infringing Products are literally the same and/or similar and/or

equivalent in design and/or effect to the '795 Patent. 28. Despite having been placed on notice of infringement, Defendant continues to

make, distribute, advertise, market and sell the Infringing Products marketed under various trade names, including Rite-Hite Security. 29. Defendant is infringing upon the '795 Patent by, among other things,

manufacturing, distributing, advertising, marketing and selling the various versions of the

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Infringing Products. Such infringement is deliberate, willful, and intentional and with full knowledge of the existence and validity of the '795 Patent. 30. The period of infringement is unknown at this time but is ongoing. Defendants

infringement continues to date and will continue unless Defendant is enjoined by the Court. 31. As a direct and proximate result of Defendants infringement of the Design

Patents, Plaintiffs have suffered damages in an amount to be determined at trial. SECOND CLAIM FOR RELIEF Injunction 32. forth herein. 33. As a direct and proximate result of Defendants actions of infringing upon the '795 Plaintiffs incorporate and restate the allegations set forth above as though fully set

Patent, Plaintiffs have suffered, and will continue to suffer, irreparable harm. Defendants open and notorious infringement of the '795 Patent has fundamentally undermined Mr. Wyers ability to commercialize his invention or to otherwise enjoy the benefit of his federally issued patent rights, and prevented Wyers Products from enjoying the benefit of its exclusive rights to the '795 Patent. Defendants express unwillingness to recognize the '795 Patent and its apparent intention to ignore Plaintiffs rights in and to those patents have and will continue to fundamentally undermine the value of the '795 Patent, for which there is no other remedy at law or equity other than an injunction that will protect Plaintiffs rights. 34. Plaintiffs have no adequate remedy at law if Defendant continues to infringe upon

the '795 Patent.

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Plaintiffs have suffered, and will continue to suffer, irreparable harm and damage

unless preliminary and final injunctions are issued enjoining Defendant from infringing upon the '795 Patent. 36. Plaintiffs will likely prevail on the merits of this case at trial. THIRD CLAIM FOR RELIEF Trade Dress Infringement 37. forth herein. 38. Defendant manufactures, distributes, advertises, markets and sells locking Plaintiffs incorporate and restate the allegations set forth above as though fully set

mechanisms that infringe the Wyers Trade Dress under the name Rite-Hite Security, among other brands or names. 39. Defendants Infringing Products, as described above, are likely to cause confusion,

or to cause mistake, or to deceive as to the affiliation, connection, or association of such products with Wyers Trade Dress, or as to the origin, sponsorship, or approval of Defendants Infringing Products by Mr. Wyers, Wyers Products or Trimax, in violation of Section 43(a) of the Lanham Act, 15 U.S.C. 1125. 40. On information and belief, Defendant copied the Wyers Trade Dress with the

intent to trade on the good will developed by Mr. Wyers and Wyers Products in establishing the Wyers Trade Dress. Defendants intentional copying is further evidenced by the degree of similarity between the products. 41. Plaintiffs have not authorized, licensed or otherwise permitted Defendant to use

the Wyers Trade Dress.

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Because Defendants imitation locks are confusingly similar to the Wyers Trade Such consumer

Dress, such Infringing Products are likely to cause consumer confusion.

confusion has threatened and caused, and will continue to threaten and cause, substantial injury to Plaintiffs. 43. As a direct and proximate result of Defendants infringement of the Wyers Trade

Dress, Plaintiffs have suffered damages in an amount to be determined at trial. WHEREFORE, Plaintiffs pray for judgment against Defendant as follows: A. B. Adjudging that the 795 Patent has been infringed by Defendant; Awarding Plaintiffs a preliminary and permanent final injunction against continuing infringement by Defendant; C. Adjudging Defendants infringement and other wrongful acts herein alleged to be deliberate, willful, and in conscious disregard of Plaintiffs rights pursuant to 15 U.S.C. 1117 and 1125(a) and 35 U.S.C. 284; D. Ordering an accounting of Defendants sales, profits, cost of goods sold and other relevant financial information as it relates to Defendants Infringing Products as specified in this Complaint; E. Awarding Defendants profits from the Infringing Products, determined after an accounting, to Plaintiffs; F. Awarding Plaintiffs damages against Defendant in an amount adequate to compensate Plaintiffs for Defendants infringement, including lost profits through infringement and price degradation and, at the very least, an amount not less than a reasonable royalty, together with interest and costs;

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Awarding Plaintiffs an additional sum on account of the willful, intentional and deliberate character of Defendants infringing acts pursuant to 15 U.S.C. 1117 and 35 U.S.C. 284;

H.

Awarding Plaintiffs their costs of litigation, including reasonable attorneys fees and costs, against Defendant;

I. J.

Awarding Plaintiffs pre- and post-judgment interest as permitted by law; and

Granting Plaintiffs all other legal and equitable relief for which Plaintiffs are entitled.

Date: July 22, 2011 Respectfully submitted, LATHROP & GAGE LLP s/ Aaron P. Bradford Aaron P. Bradford Alexander C. Clayden 950 17th Street, Suite 2400 Denver, CO 80202 Phone: 720.931.3200 Fax: 720.931.3201 Email: abradford@lathropgage.com aclayden@lathropgage.com Attorneys for Plaintiffs Philip W. Wyers and Wyers Products Group, Inc.

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DEMAND FOR JURY TRIAL Plaintiffs Philip W. Wyers and Wyers Products Group, Inc. hereby demand a trial by jury on all claims triable to a jury. Date: July 22, 2011 LATHROP & GAGE LLP s/ Aaron P. Bradford Aaron P. Bradford Alexander C. Clayden 950 17th Street, Suite 2400 Denver, CO 80202 Phone: 720.931.3200 Fax: 720.931.3201 Email: abradford@lathropgage.com aclayden@lathropgage.com Attorneys for Plaintiffs Philip W. Wyers and Wyers Products Group, Inc. Plaintiffs Address: 6770 S. Dawson Circle, Suite 200 Centennial, Colorado 80112

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