IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

DMMEN GMBH & CO., Plaintiff v.

Civil Action No. 2:12-cv-85

JURY TRIAL DEMANDED PROVEN WINNERS, INC. and PROVEN WINNERS NORTH AMERICA, LLC, Defendants.

COMPLAINT Plaintiff Dmmen GmbH & Co. (hereinafter Dmmen), by and through their undersigned counsel, hereby alleges the following against Defendants Proven Winners, Inc. and Proven Winners North America, LLC (hereinafter collectively referred to as PW): 1. PW has been and continues to manufacture, sell, import, offer for sale, induce

others to manufacture and sell and/or contribute to others manufacture and sale of growth cells having at least two cuttings from different plant species rooted together therein under the trademark Multi-Liners thereby infringing Dmmens United States Patent Number 7,891,134 (the 134 Patent). Therefore, PW is liable to Dmmen for damages because of this

infringement, and should be permanently enjoined from manufacturing, selling, importing, offering to sell, including others from the same and contributing to others manufacture and sale of the Multi-Liners or any other such product that infringes the 134 Patent.

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PARTIES 2. Upon information and belief, Proven Winners, Inc. is a California corporation

having its principal place of business located at 111 E. Elm Street, Suite D, Sycamore, IL 60178. 3. Upon information and belief, Proven Winners North America, LLC is a California

limited liability corporation having its principal place of business at 111 E. Elm Street, Suite D, Sycamore, IL 60178. 4. Dmmen is a foreign corporation having its principal place of business in

Rheinberg, Germany. JURISDICTION AND VENUE 5. Dmmen brings this action under 28 U.S.C. 2201, et seq., and the Patent Laws

of the United States, Title 35 of the United States Code. This Court has jurisdiction over this action pursuant to 28 U.S.C. 1331 and 1338. 6. Liners. 7. Liners. 8. PW contributes to the manufacture, sale, import and/or offer for sale MultiPW induces others to manufacture, sell, import and/or offer for sale MultiPW has and continues to manufacture, sell, import and/or offer for sale Multi-

Liners by others. 9. Multi-Liners infringes the 134 Patent.

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10. 11.

An actual controversy between the parties exists. Upon information and belief, PW is a corporation authorized to transact business

and conducts business in the State of Ohio. 12. Dmmen U.S.A., Inc. is a corporation organized under the laws of the State of

Ohio and has a principal place of business at 5544 Hilliard Rome Office Park, Hilliard, Ohio. 13. Dmmen U.S.A., Inc. is the United States operating company and sister company

of Dmmen, both being wholly owned subsidiaries of Capitol Green Europe GmbH. 14. Venue is appropriate pursuant to 28 U.S.C. 1391(b). SUMMARY OF FACTS 15. PW manufactures, sells, offers for sale and/or imports into the United States

growth cells that contain two or more different species of plant rooted together in a single growth cell. 16. PW manufactures, sells, offers for sale and/or imports into the United States

Multi-Liners which contain growth cells that contain two or more different species of plant rooted together in a single growth cell. 17. PW induces others to manufacture, sell, offer for sale and/or import into the

United States growth cells that contain two or more different species of plant rooted together in a single growth cell.

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18.

PW induces others to manufacture, sell, offer for sale and/or import into the

United States Multi-Liners which contain growth cells that contain two or more different species of plant rooted together in a single growth cell. 19. PW contributes to the manufacture, sale, offers for sale and/or import into the

United States growth cells that contain two or more different species of plant rooted together in a single growth cell. 20. PW contributes to the manufacture, sale, offer for sale and/or import into the

United States Multi-Liners which contain growth cells that contain two or more different species of plant rooted together in a single growth cell. 21. United States Patent Application Number 12/265,958 (the 958 Application)

was filed in the United States Patent and Trademark Office on November 6, 2008. 22. The United States Patent and Trademark Office examined the 958 Application

and issued the 134 Patent. 23. Exhibit A. 24. 25. 26. A true and accurate copy of the 134 Patent is attached hereto as Exhibit B. Dmmen was the owner of the 958 Application. Dmmen is the owner of the 134 Patent. A true and accurate copy of the 958 Application as published is attached as

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27.

Dmmen manufactures, sells, offers for sale and/or imports into the United States

growth cells that contain two or more different species of plant rooted together in a single growth cell under the trademark CONFETTI GARDEN. COUNT I: INFRINGEMENT OF THE 134 PATENT 28. Dmmen repeats and re-alleges each and every averment contained in paragraphs

1-21 hereof as though fully set forth herein. 29. 30. 31. The above-mentioned PW growth cells infringe the 134 Patent. Dmmen has been and is being damaged by PWs infringement. Dmmen has suffered and will continue to suffer irreparable harm unless PW is

enjoined from its infringing activity. 32. PW willfully infringed and continues to infringe the 134 Patent. COUNT II: INFRINGEMENT OF THE 958 APPLICATION 33. Dmmen repeats and re-alleges each and every averment contained in paragraphs

1-21 hereof as though fully set forth herein. 34. During the pendency of the 958 Application, PW manufactured, sold, offered for

sale or imported into the United States the above-described PW growth cells. 35. The above-described PW growth cells infringe the claims that were pending in the

958 Application.

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36.

The claims in the 958 Application are substantially identical to the claims in the

134 Patent within the meaning of 35 U.S.C. 154(d)(2). 37. Upon information and belief, PW had actual notice of the published 958

Application at the time it infringed the 958 Application. 38. 134 Patent. 39. Dmmen has suffered and will continue to suffer irreparable harm unless PW is Dmmen has been and is being damaged by PW inducing others to infringe the

enjoined from inducing others to infringe the 134 Patent. COUNT III: PW INDUCED THE INFRINGEMENT OF THE 134 PATENT 40. Dmmen repeats and re-alleges each and every averment contained in paragraphs

1-21 hereof as though fully set forth herein. 41. 42. PW had knowledge of the 134 Patent. With the knowledge of the 134 Patent, PW induced others to infringe the 134

Patent by providing cuttings of two or more species of plants to a grower in the United States and instructing the grower to plant the cuttings into a single growth cell. 43. PW knew or should have known that the cuttings it provided would have been

incorporated into a single growth cell. 44. Dmmen has been and is being damaged by PW providing cuttings of others to

infringe the 134 Patent.

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45.

Dmmen has suffered and will continue to suffer irreparable harm unless PW is

enjoined from inducing others to infringe the 134 Patent. COUNT IV: CONTRIBUTORY INFRINGEMENT 46. Dmmen repeats and re-alleges each and every averment contained in paragraphs

1-21 hereof as though fully set forth herein. 47. 48. PW had knowledge of the 134 Patent. With the knowledge of the 134 Patent, PW provided cuttings of two or more

species of plants to a grower in the United States. 49. PW also provided information to the growers that the cuttings could be grown in

the same growth cell. 50. 51. The grower planted the cuttings provided by PW into a single growth cell. The resulting growth cell having two or more cuttings produced by the grower

infringes the 134 Patent. 52. The growers manufacture and offer for sale the resulting growth cells having two

or more cuttings under PW trademark Multi-Liner. 53. Dmmen has been and is being damaged by PW contributing cuttings and

information to growers resulting in the infringement of the 134 Patent.

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54.

Dmmen has suffered and will continue to suffer irreparable harm unless PW is

enjoined from providing cuttings and information to growers that results in the infringement of the 134 Patent. WHEREFORE, Dmmen respectfully requests that this Court: A. Enjoin PW, its officers, agents, servants, employees, and attorneys, and those

persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise, from making, using, selling, offering to sell, importing, infringing growth cells, or otherwise engaging in acts of infringement of the 134 Patent; B. Award to Dmmen the actual damages suffered by Dmmen as the result of

infringement by PW of the 134 Patent but not less than a reasonable royalty; C. Award to Dmmen damages in the amount of profits lost by Dmmen from PWs

infringement of the 134 Patent. D. Application. E. Declare that PWs infringement is willful and award to Dmmen increased Award to Dmmen a reasonable royalty for PWs infringement of the 958

damages up to three times the actual damages, pursuant to 35 U.S.C. 284; F. Declare this action to be an exceptional case pursuant to 35 U.S.C. 285 and

award to Dmmen its attorneys fees; G. H. Award to Dmmen its costs; and Grant to Dmmen such other and further relief as may be just and proper. Page 8 of 9

JURY DEMAND Plaintiff demands trial by jury of all issues triable by jury.

Respectfully Submitted,

Dated: January 27, 2012

By:

/s/ Kirk M. Wall David A. Black david.black@dinsmore.com DINSMORE & SHOHL LLP 255 East Fifth Street, Suite 1900 Cincinnati, OH 45202 Telephone: (513) 977-8200 Facsimile: (513) 977-8141 and Kirk M. Wall kirk.wall@dinsmore.com 191 W. Nationwide Blvd., Suite 300 Columbus, OH 43215 Telephone: (614) 628-6880 Facsimile: (614) 628-6890 Of Counsel: Kent E. Baldauf, Jr., P.A. ID No. 70793 kbaldaufjr@webblaw.com Thomas C. Wolski, P.A. ID No. 203072 twolski@webblaw.com THE WEBB LAW FIRM, P.C. One Gateway Center 420 Ft. Duquesne Blvd, Suite 1200 Pittsburgh, PA 15222 Telephone: (412) 471-8815 Facsimile: (412) 471-4094 Attorneys for Plaintiff, Dmmen GmbH & Co.

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