`
`
`
`HODGSON RUSS LLP
`1540 Broadway, 24th Floor
`New York, New York 10036
`Telephone: (646) 218-7605
`Facsimile: (646) 218-7665
`Neil B. Friedman
`Robert J. Lane, Jr.
`Melissa N. Subjeck
`nfriedma@hodgsonruss.com
`rlane@hodgsonruss.com
`msubjeck@hodgsonruss.com
`Attorneys for Plaintiffs
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
`
`
`
`CURLIN MEDICAL INC.,
`ZEVEX, INC., and
`MOOG INC.,
`
` Plaintiffs
`
`v.
`
`
`ACTA MEDICAL, LLC, JOHN HARRY
`BREWER, and EVAN BREWER,
` Defendants.
`
`
`
`Hon. Stanley R. Chesler
`
`Civil No. 2:16-cv-02464-SRC-CLW
`
`
`
`
`
`
`
`
`FIRST AMENDED COMPLAINT
`
`Curlin Medical Inc. (“Curlin”), ZEVEX, Inc. (“Zevex”), and Moog Inc. (“Moog”)
`
`(collectively “plaintiffs”) for their First Amended Complaint against ACTA Medical, LLC
`
`(“ACTA”), John Harry Brewer, and Evan Brewer allege as follows:
`
`The Parties and Relevant Individuals
`
`1.
`
`Moog is a New York corporation with a principal place of business at 400
`
`Jamison Road, East Aurora, New York 14052. Moog is a worldwide designer, manufacturer,
`
`and integrator of precision motion control products and systems.
`
`
`
`
`
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`2.
`
`Curlin is a Delaware corporation with a principal place of business at
`
`Seneca and Jamison Road, East Aurora, New York 14052. Curlin is a wholly-owned subsidiary
`
`of Moog. It is a leading developer and supplier of infusion therapy products around the world.
`
`3.
`
`Zevex is a Delaware corporation with a principal place of business at 4314
`
`Zevex Park Lane, Salt Lake City, Utah 84123. Zevex is a wholly-owned subsidiary of Curlin.
`
`Zevex is one of the world’s leading suppliers of enteral products, including portable and
`
`stationary pumps, disposable sets, and related accessories.
`
`4.
`
`ACTA is a New Jersey limited liability company with a principal place of
`
`business at 4 Nevius Drive, Flemington, New Jersey 08822. ACTA distributes and sells certain
`
`medical products throughout the United States, including New Jersey.
`
`5.
`
`John Brewer is an individual who resides in the State of New Jersey. John
`
`Harry Brewer is the founder and sole owner of ACTA.
`
`6.
`
`Evan Brewer is an individual who resides in the State of New Jersey.
`
`Evan Brewer is and was at all relevant times an officer, director, and employee of ACTA.
`
`7.
`
`ACTA, John Brewer, and Evan Brewer are referred to collectively as
`
`“defendants.”
`
`8.
`
`James Bruno is an individual who resides in the State of New Jersey.
`
`Bruno is and was at all relevant times a distributor of certain medical products and an agent or
`
`representative of ACTA. Following commencement of this lawsuit, plaintiffs and Bruno
`
`resolved all claims asserted against Bruno, and Bruno has been dismissed as a defendant in this
`
`lawsuit.
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`
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`Jurisdiction and Venue
`
`9.
`
`This is a patent and trademark infringement action brought under the
`
`patent laws of the United States, 35 U.S.C. Section 101, et seq., including 35 U.S.C. Section 271,
`
`and the trademark laws of the United States, including 15 U.S.C. Sections 1114, 1121(a), and
`
`1125(a).
`
`10.
`
`Plaintiffs seek damages for patent infringement and an injunction
`
`precluding defendants from making, using, importing, selling or offering to sell, and/or from
`
`inducing or contributing to the infringement by others of, plaintiffs’ patented technology. Curlin
`
`also seeks damages for unfair competition and violations of the Lanham Act, and seeks an
`
`injunction precluding defendants from using and infringing Curlin’s trademark, trade dress, and
`
`product images, and from make false statements regarding the nature, characteristics, and
`
`qualities of defendants’ products.
`
`11.
`
`This Court has subject matter jurisdiction under 28 U.S.C. Sections 1331
`
`and 1338(a) and 15 U.S.C. Section 1121(a).
`
`12.
`
`This Court has personal jurisdiction over ACTA because ACTA has a
`
`principal place of business in New Jersey, because a substantial part of the events or omissions
`
`giving rise to the claims occurred within this district and state, and ACTA is subject to service in
`
`this district.
`
`13.
`
`This Court has personal jurisdiction over John Brewer and Evan Brewer
`
`because they are domiciled in the State of New Jersey, because a substantial part of the events or
`
`omissions giving rise to the claims occurred within this district and state, and they are subject to
`
`service in this district.
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`14.
`
`Venue is proper under 28 U.S.C. Sections 1400 and 1391 because
`
`defendants are subject to personal jurisdiction in this district. Defendants have also committed
`
`acts of patent infringement and trademark infringement in this district.
`
`Plaintiffs’ Infusion Therapy Products
`
`Background and Facts
`
`15.
`
`Plaintiffs’ expertise in the medical market includes the application of
`
`advanced technologies to the precision control of motion and fluids. Plaintiffs are regarded as
`
`leading developers of infusion therapy products, which are products used by caregivers to
`
`intravenously administer medication to a patient.
`
`16.
`
`Plaintiffs have invested substantial time and resources in research and
`
`development in order to design and develop advanced infusion systems that improve medication
`
`safety, optimize application performance, and reduce medication expenses. Plaintiffs offer a
`
`range of medical pump technologies and fluid delivery systems with the goal of simplifying
`
`processes, increasing safety, and enhancing patient and caregiver outcomes.
`
`17.
`
`By investing substantial time and resources in research and development,
`
`plaintiffs have achieved unmatched dependability, ease-of-use, and flexibility in application of
`
`its patented products. These three characteristics define the plaintiffs’ line of infusion pumps,
`
`and is why they are so highly regarded by the caregivers who use them.
`
`18.
`
`Plaintiffs have a highly positive and well-known reputation and have
`
`developed positive and valuable goodwill in their trade name and products.
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`19.
`
`Plaintiffs’ infusion pumps require the use of an infusion administration
`
`set. An “administration set” is a specially-designed and engineered tubing assembly, and
`
`associated customized components, used to transport liquids from a pump to a patient. Plaintiffs’
`
`administration sets are designed specifically and exclusively for use with plaintiffs’ line of
`
`infusion pumps and are not intended for use, or properly used, with any other manufacturer’s
`
`pumps.
`
`20.
`
`The administration sets designed for use with plaintiffs’ line of infusion
`
`pumps include an anti-free flow feature/device that prevents inadvertent free flow of the infusion
`
`liquid. The anti-free flow device also allows the intentional priming of the set by gravity,
`
`thereby reducing the set-up time.
`
`21.
`
`Plaintiffs’ administration sets are uniquely designed to be easy for
`
`caregivers to use while still providing exceptional patient care and safety.
`
`22.
`
`Plaintiffs’ administration sets are specifically designed to be used
`
`exclusively with plaintiffs’ line of infusion pumps as a complete system. At great expense,
`
`plaintiffs have subjected and continuously subject the complete system to rigorous testing to
`
`ensure the accuracy and safety of its functions.
`
`23.
`
`Use of administration sets not specifically designed and tested for use with
`
`plaintiffs’ line of infusion pumps poses a material risk of inaccuracy in the flow rate leading to
`
`underinfusion and overinfusion, which is dangerous and may be fatal. In addition, the use of
`
`contaminated or incorrect materials to construct the administration sets poses a risk of leaching
`
`and contamination of fluids, placing patients at risk.
`
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`
`
`Plaintiffs’ Patents
`
`24.
`
`Plaintiffs have obtained patent protection for their important invention.
`
`25.
`
`On December 26, 2000, the United States Patent and Trademark Office
`
`(the “USPTO”) issued U.S. Patent No. 6,164,921 (the “’921 Patent”), entitled “Curvilinear
`
`Peristaltic Pump Having Insertable Tubing Assembly.” A copy of the ’921 Patent is attached as
`
`Exhibit 1.
`
`26.
`
`Curlin is the owner of all rights, title, and interest in the ’921 Patent.
`
`27.
`
`On April 16, 2002, the USPTO issued U.S. Patent No. 6,371,732 (the
`
`“’732 Patent”), entitled “Curvilinear Peristaltic Pump.” A copy of the ’732 Patent is attached as
`
`Exhibit 2.
`
`28.
`
`The ’732 Patent is a continuation of the ’921 Patent.
`
`29.
`
`Curlin is the owner of all rights, title, and interest in the ’732 Patent.
`
`30.
`
`The ’732 Patent and the ’921 Patent will be referred to collectively as the
`
`“patents.”
`
`Curlin’s Trademarks
`
`31.
`
`Curlin owns U.S. Trademark Registration No. 3,855,036 for the word
`
`“CURLIN” for use on medical infusion pumps and administration sets (the “CURLIN Mark”).
`
`The registration was issued on September 28, 2010. A copy of the Curlin registration is attached
`
`as Exhibit 3.
`
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`32.
`
`Curlin has used the CURLIN Mark in U.S. commerce since at least as
`
`early as April 2009, and it has the exclusive right to use the CURLIN Mark, nationwide, on its
`
`medical infusion pumps and administration sets.
`
`33.
`
`Curlin has invested substantial resources to develop, grow, and promote its
`
`CURLIN Mark. As a direct result of Curlin’s continuous and exclusive use of the CURLIN
`
`Mark, it has become widely known and recognized in the industry as Curlin’s trademark and as a
`
`strong indicator of the source and quality of Curlin’s goods.
`
`34.
`
`By virtue of Curlin’s methods, the duration and scope of its use of the
`
`CURLIN Mark, the expenditure of considerable sums for promotional activities, and by virtue of
`
`the excellence of its goods, Curlin has obtained for the CURLIN Mark a most valuable
`
`reputation. The CURLIN Mark, and the associated goods, have gained substantial recognition
`
`and goodwill in the marketplace.
`
`35.
`
`The CURLIN Mark is strong and distinctive and designates Curlin as the
`
`source of all goods advertised, marketed, sold, or used in connection with its mark in the United
`
`States. In addition, by virtue of Curlin’s use of the mark in connection with its products, and its
`
`extensive marketing, advertising, promotion, and sale of its products under that mark, the
`
`CURLIN Mark has acquired secondary meaning whereby the consuming public of this district,
`
`the State of New Jersey, and the United States associate the CURLIN Mark with a single source
`
`of high quality products and services.
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`
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`Defendants’ Patent Infringement
`
`36.
`
`Defendants have been and are infringing, actively inducing others to
`
`infringe, and/or contributing to the infringement of one or more claims of each of plaintiffs’
`
`patents by, directly or through intermediaries, making, using, importing, selling, and/or offering
`
`for sale, in this district and elsewhere, certain medical products, including but not limited to,
`
`ACTA’s “IV Administration Infusion Pump Set” which defendants represent as being
`
`“compatible with the Curlin infusion pump” (the “ACTA sets” or “infringing products”).
`
`37.
`
`Specifically, immediately prior to the commencement of this lawsuit,
`
`defendants offered for sale the infringing products at the 2016 National Home Infusion
`
`Association Annual Conference and Exhibition held March 21-24, 2016 in New Orleans,
`
`Louisiana. At that conference, defendants displayed the infringing products and indicated that
`
`they were being introduced into the market to compete with plaintiffs’ products. In addition,
`
`defendants performed demonstrations of the infringing products loaded into a Curlin infusion
`
`pump.
`
`38.
`
`At the New Orleans conference, defendants also falsely represented that
`
`they had obtained the appropriate FDA clearance (i.e., “510(k)”) required to market and sell the
`
`infringing products. A “510(k)” is a premarket submission made to the FDA to demonstrate that
`
`the device to be marketed is at least as safe and effective, that is, substantially equivalent, to a
`
`legally marketed device. A company is not permitted to market or sell a Class II medical device,
`
`like an infusion pump and administration set system, until the FDA issues a “510(k)” or a
`
`premarket approval.
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`39.
`
`Since the commencement of this lawsuit, defendants continue to offer for
`
`sale the infringing products, representing them to be intended for use with the Curlin infusion
`
`pump, and have sold thousands of infringing products to their customers.
`
`40.
`
`Defendants also continue to market and sell the infringing products as
`
`having the appropriate FDA clearance. At the time this action was commenced, however,
`
`defendants had not obtained such clearance and, upon information and belief, still have not
`
`obtained the appropriate FDA clearance required to legally market and sell the infringing
`
`products.
`
`41.
`
`By making, using, importing, offering for sale and selling their infringing
`
`products to their customers, defendants have been and are knowingly directly and indirectly
`
`infringing and inducing infringement of one or more claims of each of plaintiffs’ patents. In
`
`addition, infringement of one or more claims of plaintiffs’ patents occurs when defendants and/or
`
`their customers load the infringing products into a Curlin infusion pump. Moreover, defendants
`
`have been and are inducing infringement by instructing their customers that the ACTA sets are
`
`compatible with the Curlin infusion pump and directing their customers to use the ACTA sets
`
`with the Curlin infusion pump.
`
`42.
`
`Further, defendants contribute to the infringement of one or more claims
`
`of plaintiffs’ patents because defendants know that the ACTA sets are made for unlawful
`
`infringing uses and are not staple articles of commerce suitable for substantial non-infringing
`
`uses.
`
`43.
`
`John Brewer directed and controlled the decision to copy, make, import,
`
`use, offer for sale, and sell the infringing products to ACTA’s customers. Specifically, John
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`Brewer’s goal was to copy plaintiffs’ patented administration sets to create a generic alternative
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`that would be offered at a reduced cost to plaintiffs’ customers. In addition, John Brewer
`
`personally sold and/or offered for sale the infringing ACTA sets.
`
`44.
`
`As ACTA’s director of business development, Evan Brewer offers for sale
`
`and sells the infringing products to plaintiffs’ customers, and instructs the customers that the
`
`infringing products are intended only for use with the Curlin infusion pumps. As part of his sales
`
`efforts, Evan Brewer infringes and has infringed plaintiffs’ patents by performing sales
`
`demonstrations of the infringing products loaded into a Curlin infusion pump.
`
`45.
`
`Defendants’ marketing strategy related to the infringing products is to
`
`undercut the price of plaintiffs’ administration sets.
`
`Defendants’ Trademark Infringement
`
`46.
`
`The infringing products do not simply infringe. In appearance, they are
`
`nearly exact copies of plaintiffs’ patented products.
`
`47.
`
`Defendants have copied Curlin’s color schemes for the administration sets.
`
`Those color schemes are non-functional in nature. Defendants have also copied Curlin’s product
`
`codes for the infringing products, as the last three numbers of the infringing products’ product
`
`codes are identical to the last three numbers of Curlin’s product codes. These similarities were
`
`intended to, and do, invoke a false association with Curlin which, due to the inferior nature of the
`
`infringing products, causes damage to Curlin’s reputation.
`
`48.
`
`John Brewer directed that the ACTA product codes match the comparable
`
`Curlin product codes.
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`49.
`
`In addition, ACTA’s marketing and promotional materials use the
`
`CURLIN Mark and product images, without Curlin’s consent, for the infringing products, which
`
`are nearly exact (but inferior) copies of plaintiffs’ patented products. A copy of an ACTA
`
`promotional brochure for the infringing products is attached as Exhibit 4.
`
`50.
`
`Evan Brewer designs the ACTA promotional materials with the specific
`
`intent to market the infringing products as intended only for use with the Curlin infusion pumps.
`
`51.
`
`Defendants’ unauthorized use of the CURLIN Mark for the infringing
`
`products is likely to cause confusion or mistake or to deceive others as to the affiliation,
`
`connection, or association between Curlin and ACTA, as well as confusion concerning the
`
`source, sponsorship or approval of the infringing products.
`
`52.
`
`Defendants’ conduct, including its false representations as to status of
`
`obtaining FDA approval, leads customers for the products to believe that the only difference
`
`between defendants’ infringing products and those sold by plaintiffs is price.
`
`53. Moreover, the inferior quality and nature of the infringing products
`
`together with their false association with Curlin, damages Curlin’s reputation and goodwill.
`
`54.
`
`Defendants are well aware of the reputation of Curlin and the CURLIN
`
`Mark, and their infringing conduct was intentionally calculated to misappropriate and trade off
`
`the goodwill developed by Curlin.
`
`55.
`
`Defendants’ statutory violations and other wrongful acts have injured and
`
`threaten to injure plaintiffs, including loss of customers, dilution of goodwill, confusion of
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`existing and potential customers, and injury to plaintiffs’ reputation.
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`
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`First Claim for Relief
`(Direct Infringement of the ’921 Patent)
`
`56.
`
`Plaintiffs repeat the allegations set forth in paragraphs 1 through 55.
`
`57.
`
`On December 26, 2000, the USPTO issued the ’921 Patent.
`
`58.
`
`Curlin is the owner of all rights, title, and interest in the ’921 Patent.
`
`59.
`
`Defendants have infringed and continue to infringe, literally or under the
`
`doctrine of equivalents, at least claims 15-34 of the ’921 Patent by making, using, importing,
`
`selling, and/or offering for sale, in this district and elsewhere, certain infusion therapy products,
`
`including but not limited to, ACTA’s “IV Administration Infusion Pump Set” without plaintiffs’
`
`consent or permission.
`
`60.
`
`Defendants’ infringing acts include importing, selling and offering for sale
`
`the ACTA sets, as well as demonstrating the ACTA sets on Curlin infusion pumps for potential
`
`customers, including without limitation, at a trade show in New Orleans in March 2016.
`
`61.
`
`Defendants’ actions in infringing the ’921 patent have been, and continue
`
`to be, willful, deliberate, and/or in conscious disregard of plaintiffs’ rights, making this an
`
`exceptional case within the meaning of 35 U.S.C. Section 285. Among other things, defendants
`
`have continued to commit acts of infringement after the commencement of this action and after
`
`they had actual notice of the unlawful nature of their conduct.
`
`62.
`
`As a result of defendants’ infringing activities, plaintiffs have sustained
`
`damages in an amount to be proven at trial.
`
`63.
`
`Defendants are continuing and will continue their infringing activities
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`unless and until they are restrained and enjoined by this Court.
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`64.
`
`Defendants’ infringing activities have caused, and will continue to cause,
`
`plaintiffs irreparable harm for which there is no adequate remedy at law, including without
`
`limitation damage to plaintiffs’ reputation as suppliers of high quality unique infusion therapy
`
`products and loss of customers.
`
`Second Claim for Relief
`(Direct Infringement of the ’732 Patent)
`
`65.
`
`Plaintiffs repeat the allegations set forth in paragraphs 1 through 64.
`
`66.
`
`On April 16, 2002, the USPTO issued the ’732 Patent.
`
`67.
`
`The ’732 Patent issued from a continuation of the application of the ’921
`
`Patent.
`
`68.
`
`Curlin is the owner of all rights, title, and interest in the ’732 Patent.
`
`69.
`
`Defendants have infringed and continue to infringe, literally or under the
`
`doctrine of equivalents, one or more claims of the ’732 Patent by making, using, importing,
`
`selling, and/or offering for sale, in this district and elsewhere, certain infusion therapy products,
`
`including but not limited to, ACTA’s “IV Administration Infusion Pump Set.”
`
`70.
`
`Among other things, defendants have directly infringed all three of the
`
`claims of the ’732 Patent by demonstrating the ACTA sets on Curlin infusion pumps for
`
`potential customers, including without limitation, at a trade show in New Orleans in March 2016.
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`71.
`
`Defendants’ actions in infringing the ’732 Patent have been, and continue
`
`to be, willful, deliberate, and/or in conscious disregard of plaintiffs’ rights, making this an
`
`exceptional case within the meaning of 35 U.S.C. Section 285.
`
`72.
`
`As a result of defendants’ infringing activities, plaintiffs have sustained
`
`damages in an amount to be proven at trial.
`
`73.
`
`Defendants will continue their infringing activities unless and until they
`
`are restrained and enjoined by this Court.
`
`74.
`
`Defendants’ infringing activities have caused, and will continue to cause,
`
`plaintiffs irreparable harm for which there is no adequate remedy at law, including without
`
`limitation damage to plaintiffs’ reputation as suppliers of high quality unique infusion therapy
`
`products and loss of customers.
`
`Third Claim for Relief
`(Indirect Patent Infringement of the ’921 Patent )
`
`75.
`
`Plaintiffs repeat the allegations set forth in paragraphs 1 through 74.
`
`76.
`
`Defendants have actively induced others to infringe, and contributed to the
`
`infringement of, the ’921 Patent, either literally or under the doctrine of equivalents, in violation
`
`of 35 U.S.C. Sections 271(b) and (c).
`
`77.
`
`Defendants have been and are knowingly inducing infringement of at least
`
`claims 1-14 of the ’921 Patent with specific intent to do so by, without limitation, making, using,
`
`importing, selling and/or offering for sale the infringing products for or to its customers.
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`78.
`
`Infringement of at least claims 1-14 of the ’921 Patent occurs when
`
`defendants’ customers load the infringing products into a Curlin infusion pump. Defendants
`
`have been and are further inducing infringement by instructing their customers that the infringing
`
`products are compatible with Curlin infusion pumps and directing their customers to use the
`
`infringing products with Curlin infusion pumps.
`
`79.
`
`Defendants have knowledge of, and intend, these infringing uses by their
`
`customers.
`
`80.
`
`Further, defendants have contributed to, and are continuing to contribute
`
`to, the infringement of at least claims 1-14 of the ’921 Patent because defendants know and
`
`intend that their infringing products are material components of a patented combination, are
`
`made for use in infringement, and are not staple articles of commerce suitable for non-infringing
`
`use.
`
`81.
`
`The infringement by defendants is and was intentional and willful, making
`
`this an exceptional case within the meaning of 35 U.S.C. Section 285.
`
`82. With knowledge of the ’921 Patent, and after plaintiffs commenced this
`
`lawsuit in May 2016, defendants continue to directly and indirectly infringe the ’921 Patent, and
`
`continue to induce others to infringe the ’921 Patent.
`
`83.
`
`As a result of defendants’ infringing activities, plaintiffs have sustained
`
`damages in an amount to be proven at trial.
`
`84.
`
`Defendants will continue their infringing activities unless and until they
`
`are restrained and enjoined by this Court.
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`85.
`
`The infringement by defendants has caused, and will continue to cause,
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`plaintiffs irreparable harm for which there is no adequate remedy at law, including without
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`limitation damage to plaintiffs’ reputation as suppliers of high quality unique infusion therapy
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`products and loss of customers.
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`Fourth Claim for Relief
`(Indirect Patent Infringement of the ’732 Patent )
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`86.
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`Plaintiffs repeat the allegations set forth in paragraphs 1 through 85.
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`87.
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`Defendants have actively induced others to infringe, and contributed to the
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`infringement of, the ’732 Patent, either literally or under the doctrine of equivalents, in violation
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`of 35 U.S.C. Sections 271(b) and (c).
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`88.
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`Defendants have been and are knowingly inducing infringement of claims
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`1-3 of the ’732 Patent with specific intent to do so by, without limitation, making, using,
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`importing, selling and/or offering for sale the infringing products for or to its customers.
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`89.
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`Infringement of claims 1-3 of the ’732 Patent occurs when defendants’
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`customers load the infringing products into a Curlin infusion pump. Defendants have been and
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`are further inducing infringement by instructing their customers that the infringing products are
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`compatible with Curlin infusion pumps and directing their customers to use the infringing
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`products with Curlin infusion pumps.
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`90.
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`Defendants have knowledge of, and intend, these infringing uses by their
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`customers.
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`91.
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`Further, defendants have contributed to, and are continuing to contribute
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`to, the infringement of claims 1-3 of the ’732 Patent because defendants know that their
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`infringing products are material components of a patented combination, are made for use in
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`infringement, and are not staple articles of commerce suitable for non-infringing use.
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`92.
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`The infringement by defendants is and was intentional and willful, making
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`this an exceptional case within the meaning of 35 U.S.C. Section 285.
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`93. With knowledge of the ’732 Patent, and after plaintiffs commenced this
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`lawsuit in May 2016, defendants continue to directly and indirectly infringe the ’732 Patent, and
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`continue to induce others to infringe the ’732 Patent.
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`94.
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`As a result of defendants’ infringing activities, plaintiffs have sustained
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`damages in an amount to be proven at trial.
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`95.
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`Defendants will continue their infringing activities unless and until they
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`are restrained and enjoined by this Court.
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`96.
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`The infringement by defendants has caused, and will continue to cause,
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`plaintiffs irreparable harm for which there is no adequate remedy at law, including without
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`limitation damage to plaintiffs’ reputation as suppliers of high quality unique infusion therapy
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`products and loss of customers.
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`Fifth Claim for Relief
`(Trademark Infringement (15 U.S.C. Section 1114))
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`97.
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`Plaintiffs repeat the allegations set forth in paragraphs 1 through 96.
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`98.
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`Curlin owns the CURLIN Mark.
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`99.
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`Defendants have used the CURLIN Mark, without Curlin’s permission,
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`for the infringing products, which are nearly exact copies of plaintiffs’ patented products,
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`including non-functional attributes of the physical design and color schemes of the CURLIN
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`Mark.
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`100. Defendants’ use of the CURLIN Mark in connection with the marketing of
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`infusion therapy products is likely to cause confusion or mistake or to deceive others as to the
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`source of the infringing products.
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`101. Defendants’ actions constitute trademark infringement under 15 U.S.C.
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`Section 1114 and have caused Curlin to sustain damages in an amount to be determined at trial.
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`102. Upon information and belief, defendants had actual knowledge of the
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`CURLIN Mark. Defendants were on constructive notice of the CURLIN Mark based on the
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`federal registration for this mark and Curlin’s use of the mark in interstate commerce. As a
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`result, defendants’ unauthorized use of the CURLIN Mark on, and in connection with advertising
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`and marketing for their infringing products, has been knowing, intentional, and willful.
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`103. Pursuant to 15 U.S.C. Section 1117, Curlin is entitled to treble damages,
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`as well as the recovery of defendants’ profits, the cost of this action, reasonable attorneys’ fees,
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`and a preliminary and permanent injunction restraining defendants from any further use of the
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`CURLIN Mark and product images, including but not limited to use on their website and
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`promotional materials.
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`Sixth Claim for Relief
`(Trademark Infringement (15 U.S.C. Section 1125(a))
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`104. Plaintiffs repeat the allegations set forth in paragraphs 1 through 103.
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`105. Curlin has used the CURLIN Mark in commerce for infusion therapy
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`products since at least 2009.
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`106. Defendants have used, and are continuing to use, the CURLIN Mark and
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`Curlin product images, without Curlin’s consent, in connection with the infringing products.
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`107. Defendants’ use of the CURLIN Mark and product images is likely to
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`cause confusion, to cause mistake, or to deceive as to the affiliation, connection, or association
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`between ACTA and Curlin, or as to the origin, sponsorship, or approval of the infringing
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`products in violation of 15 U.S.C. Section 1125.
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`108. By reason of the foregoing, Curlin has been damaged in an amount to be
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`determined at trial.
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`109. Pursuant to 15 U.S.C. Section 1117, Curlin is entitled to treble damages,
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`as well as the recovery of defendants’ profits, the costs of this action, reasonable attorneys’ fees,
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`and a preliminary and permanent injunction restraining defendants from any further use of the
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`CURLIN Mark and product images, including but not limited to use on their website and
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`promotional materials.
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`Seventh Claim for Relief
`(Unfair Competition (N.J.S.A. Section 56:4-1))
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`110. Plaintiffs repeat the allegations set forth in paragraphs 1 through 109.
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`111. This cause of action arises under N.J.S.A. Section 56:4-1 et seq.
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`112. Defendants’ unauthorized use in commerce of the CURLIN Mark and
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`product images is likely to cause confusion, mistake or deception of purchasers and potential
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`purchasers as to the origin, sponsorship, or approval of the infringing products by Curlin.
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`113. Defendants’ unauthorized use in commerce of the CURLIN Mark and
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`product images falsely designates the origin of the infringing products and is likely to cause
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`confusion, mistake or deception about the origin of the infringing goods.
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`114. By using copies of the CURLIN Mark and product images, defendants
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`have falsely and misleadingly described and suggested that the infringing products they are
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`selling and offering for sale emanate from and are sponsored or approved by Curlin.
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`115. Defendants’ statutory violations and other wrongful acts have injured and
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`threaten to injure Curlin, including by the loss of customers, dilution of goodwill, confusion of
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`existing and potential customers, and injury to its reputation.
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`116. Defendants’ acts are and have been willful and have damaged Curlin and,
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`unless restrained, will continue to cause irreparable damage to Curlin, including damage to
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`reputation and goodwill and confusion among customers and potential customers, in an amount
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`that cannot now be determined. Curlin has n