Case 4:13-cv-00342-KGB Document 27 Filed 11/06/13 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS

P. S. PRODUCTS, INC., and BILLY PENNINGTON, Individually

PLAINTIFFS

v.

Civil Action No. 4:13-cv-342-KGB

ACTIVISION BLIZZARD, INC., ACTIVISION PUBLISHING, INC., and TREYARCH CORPORATION.

DEFENDANTS

PLAINTIFFS RESPONSE TO DEFENDANTS MOTION TO DISMISS I. Introduction and Facts

The Plaintiff is the legal owner of patents for a product known as Blast Knuckle Stun Gun, patent No. US D561,294 S and patent No. US D576,246 S. Please see Exhibit A to the Dkt. No. 1. On February 5, 2008, United States Letters Patent No. US D561, 294 S, (hereafter US D561, 294 S) was issued to the Plaintiffs for a design invention for a stun gun. The Plaintiffs have owned the patent No. US D561, 294 S throughout the period of the Defendants infringing acts and still owns the patent. The Plaintiffs product, the Zap Blast Knuckle embodies the US D561, 294 S design patent. When the Zap Blast Knuckle is operated by a user it produces a 950,000 volt electrical shock. A user holds the Zap Blast Knuckle as if holding a pair of brass knuckles.

Case 4:13-cv-00342-KGB Document 27 Filed 11/06/13 Page 2 of 20

The Plaintiff specializes in the manufacture and distribution of stun guns, gun cleaning kits, and other personal protection devices. The Plaintiff markets and sales this device through trade specialty shows throughout the United States, as well as through internet distribution. Its clients include: Gander Mountain, Cableas, National Rifle Association, Bass Pro Shop, Academy and The Sportsmans Guide. This patented product did not exist anywhere in the world until it was designed, patented and placed in the stream of commerce by the Plaintiffs. There is no prior art to the Plaintiffs patent. In 2009, it was the Plaintiffs top selling product and it has continued to produce significant revenue. The Plaintiffs design is unique. Since the designs inception in 2007 the mark of the design has obtained global recognition. The Plaintiffs unique intellectual property design has been extensively used for many years and has achieved widespread recognition, goodwill and fame in the stun gun industry. The Plaintiffs intellectual property may not be used without its express written permission, which the Defendants failed to obtain. Certainly if this would have been done this legal matter could have been avoided. From consumers that purchased the Defendants video game, Call of Duty, Black Ops II, for platforms, Xbox, PlayStation 3, Wii and MICROSOFT WINDOWS, the Plaintiffs learned that the video games contain illegal images that embody the Plaintiffs US D561, 294 S patent design. In the video game Call of Duty, Black Ops II on and in all platforms a player, via an avatar, may access weapons called the Combat Suppression Knuckles or Galvaknuckles via icons that are illegal images that embody the Plaintiffs US D561, 294 S patent design. Additionally, the weapons, Combat Suppression Knuckles or Galvaknuckles, that a player may access through the icons are

Case 4:13-cv-00342-KGB Document 27 Filed 11/06/13 Page 3 of 20

an illegal copy of the Plaintiffs US D561, 294 S patent design.1

In the video game Call of Duty, Black Ops II when a player via an avatar, uses the weapons called Combat Suppression Knuckles or Galvaknuckles it emits an electrical shock representing in reality the shock volts produced by the Plaintiffs product Zap Blast Knuckle that embodies the Plaintiffs US D561, 294 S patent design.

In the campaign mode of Call of Duty, Black Ops II, these knuckles appear in the levels Karma and Odysseus. In the campaign mode of Call of Duty, Black Ops II, a player may use the access kit perk on these levels, an icon will appear indicating there is a weapons cache available. After opening the case, the player will immediately see illegal images that embody the Plaintiffs US D561, 294 S patent design. The Combat Suppression Knuckles also appear in the

1 The images below are, first the pencil drawing of Plaintiffs design and second, is the icon a player use to access the stun device the Defendants video games.

Case 4:13-cv-00342-KGB Document 27 Filed 11/06/13 Page 4 of 20

strike force portions of the campaign. Galvaknuckles must be purchased in zombie mode. In the game play a player may acquire the Galvaknuckles by an access through icons that are an illegal copy of the Plaintiffs product Zap Blast Knuckle that embodies the Plaintiffs US D561, 294 S patent design. The icons that are an illegal copy of the Plaintiffs product Zap Blast Knuckle that embodies the Plaintiffs US D561, 294 S patent design are found in each of the zombie levels: Tranzit, Farm, Town, Nuketown Zombies, and Die Rise. The Defendants without authority placed in the stream of commerce and offered to sell, the video game Call of Duty, Black Ops II which uses illegal images that embody the Plaintiffs US D561, 294 S patent design at retail locations and on the world wide web throughout the United States. The Defendants acts are likely to cause confusion, mistake or deception among purchasers and potential purchasers of the video games bearing the illegal copies of the Plaintiffs design. Purchasers and potential purchasers are likely to believe that illegal images in the Defendants video game originate from, or are in some way properly connected with, approved, sponsored and endorsed by the Plaintiffs. Due to the Plaintiffs long developed and maintained substantial goodwill in the stun gun industry is certainly has common law trademark rights to its unique stun gun design. Its 294 patent only strengthens its trademark rights. The design and mark have appeared in numerous publications, catalogs and with the Plaintiffs permission, in motion pictures and television episodes. The most successful video game manufacture should be held to the same standard in the industry.

Case 4:13-cv-00342-KGB Document 27 Filed 11/06/13 Page 5 of 20

Plaintiffs original drawing of design.

Subsequently, the Plaintiffs filed an Amended Complaint against all Defendants for patent infringement, unfair competition, deceptive trade practices and trademark infringement. The causes of action and supporting legal standards are commonly associated with each other. II. Fed. R. Civ. P. 12 (b)(6) Legal Standard

A motion to dismiss under Rule 12(b)(6) should be granted when a plaintiff fails to state a claim upon which relief can be granted. Dismissal should be granted only when the factual allegations contained in the complaint fail to state a claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007), or when an issue of law is dispositive. Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). In evaluating the complaint, only its legal sufficiency may be considered, not the weight of the evidence supporting it. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Furthermore, the court must accept as true all factual allegations, even if doubtful. Bell Atlantic, 550 U.S. at 555. Rule 12(b)(6) explicitly provides, that if the Court in ruling on the motion takes into consideration matters outside the pleadings, it must treat the motion as one for summary

Case 4:13-cv-00342-KGB Document 27 Filed 11/06/13 Page 6 of 20

judgment under Rule 56. If both parties file affidavits and exhibits in support of their respective positions, which are not excluded by the District Court, the motion to dismiss should properly be treated as one for summary judgment. Costen v. Pauline's Sportswear, Inc., 391 F.2d 81, 85 (9th Cir. 1968); Central Contracting Co. v. Maryland Casualty Co., 367 F.2d 341, 343 (3rd Cir. 1966); Smith v. United States, 362 F.2d 366, 367-368 (9th Cir. 1966). Considering the motion therefore as one for summary judgment the crucial question is whether this case presents a genuine issue as to some material fact. Unless the pleadings and supporting documents disclose beyond any doubt the absence of a genuine issue of fact, summary judgment should not be entered. Poller v. Columbia Broadcasting System, Inc., 36 U.S. 464, 467, 82 S. Ct. 486, 7 L. Ed. 2d 458 (1962); Vineberg v. Brunswick Corporation, 391 F.2d 184, 187 (5th Cir. 1968); Williams v. Chick, 373 F.2d 330, 331-332 (8th Cir. 1967); Kennedy v. Bennett, 261 F.2d 20, 22 (8th Cir. 1958); Booth v. Barber Transportation Co., 256 F.2d 927, 928 (8th Cir. 1958). III. Fed. R. Civ. P. 12 (b)(6) Legal Standard in Patent and Trademark Infringement Matters are Broad

In a patent suit, a motion to dismiss a complaint should not be granted if from the record before the Court it is impossible to appraise the claims or to determine their scope or range of equivalents of their elements. Karl Kiefer Mach. Co., v. United States Bottlers Machinery Co., 113 F2d 356, 46 USPQ 1 (1940, CA7 Ill). In patent cases the Courts assume as true all factual allegations of a Complaint. To survive a motion to dismiss the complaint must allege only enough facts to state a claim to relief that is plausible on its face. B&B Hardware, Inc. v. Hargis Indus., 569 F.3d 383, 387, 2009 U.S. App. LEXIS 8. (8th Cir. Ark. 2009).

vi

Case 4:13-cv-00342-KGB Document 27 Filed 11/06/13 Page 7 of 20

Federal Civil Procedure Rule 12(b)(6) pleading requirements for a Complaint alleging patent infringement cannot be extended to require a plaintiff to specifically include each element of claims of asserted patent, since imposing such requirements would contravene the notice pleading standard, and thus, the patentee is only required to plead facts sufficient to place the alleged infringer on notice. Phonometrics, Inc., v. Hospitality Franchise Sys., 203 F3d 790, 53 USPQ2d 1762 (2000, CA FC). Summary judgment is disfavored in trademark infringement cases. Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 630 (9th Cir. 2005). Where the plaintiff alleges defendants infringement was willful, the general rule has long been that a determination [of] willfulness requires an assessment of a partys state of mind, a factual issue that is not usually susceptible to summary judgment. Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505, 515 (9th Cir. 1985). Courts have also noted that Defendant[s] simply cannot distill First Amendment concerns from the traditional framework in which courts determine the likelihood of confusion under the Lanham Act. No Fear, Inc. v. Imagine Films, Inc., 930 F. Supp. 1381, 1383-84 (C.D. Cal. 1995) (citing AnheuserBusch, Inc. v. Balducci Publications, 28 F.3d 769, 773 (8th Cir. 1994), cert. denied, 513 U.S. 1112, 1115 (1995)). Thus, it is highly relevant that district courts should grant summary judgment motions regarding the likelihood of confusion sparingly, as careful assessment of the pertinent factors that go into determining likelihood of confusion usually requires a full record. Thane Intl, Inc. v. Trek Bicycle Corp., 305 F.3d 894, 901-02 (9th Cir. 2002). IV. Design Patents use Are Not Limited to an Article of Manufacture and Design Patents Are Granted to Computer Icons

Patent holders have exclusive rights. The exclusive rights are disjunctive: one may infringe by (1) making without selling or using, (2) using without making or selling or (3) selling 7

Case 4:13-cv-00342-KGB Document 27 Filed 11/06/13 Page 8 of 20

without making or using. Roche Products, Inc. v. Bolar Pharmaceutical Co., Inc., 733 F.2d 858, 861 (Fed. Cir. 1984) , cert. denied, 469 U.S. 856 (1984) ("It is beyond argument that performance of only one of the three enumerated activities is patent infringement."). Design patent infringement adheres to the ordinary observer test and the use of prior art. Please see Egyptian Goddess v. Swisa, 543 F. 3d 665 (Fed. Cir. 2008). The ordinary observer test was recently broadened in the landmark Apple v. Samsung case. Please see Apple, Inc. v. Samsung Elecs. Co., 2012 U.S. Dist. LEXIS 105125 (N.D. Cal. July 27, 2012); Northern District Case No. 11-cv-1846). One does not escape infringement by using a patented invention for a purpose not contemplated or disclosed by the patentee. See Paragon Solutions, LLC v. Timex Corp., 566 F.3d 1075, 1091 (Fed. Cir. 2009) [A]pparatus claims cover what a device is, not what a device does. Hewlett-Packard Co. v. Bausch & Lomb, Inc., 909 F.2d 1464, 1468 (Fed. Cir. 1990). "Absent an express limitation to the contrary, any use of a device that meets all of the limitations of an apparatus claim written in structural terms infringes that apparatus claim. See, e.g., Catalina Mktg. Int'l, Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 809 (Fed. Cir. 2002) (holding that 'a patent grants the right to exclude others from making, using, selling, offering to sale, or importing the claimed apparatus or composition for any use of that apparatus or composition' (emphasis added)). "Even if an [accused infringer practiced a patented method] for an entirely different reason [from that recited in the patent], that would not avoid infringement as the motive of the accused infringer when performing a claimed method is simply not relevant. Hilton Davis Chem. Co. v. Warner-Jenkinson Co., 62 F.3d 1512, 1519 (Fed. Cir. 1995) (en banc), rev'd on other

Case 4:13-cv-00342-KGB Document 27 Filed 11/06/13 Page 9 of 20

grounds, 520 U.S. 17 (1997) ."; "The statement in a claim that the method is intended to serve a particular purpose at most requires that the undesirable result (here destructive thermal stresses) be avoided. Such a statement does not give rise to a defense to infringement by showing that practicing the claimed method was not necessary to achieve that purpose. Catalina Marketing International, Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 809, 62 USPQ2d 1781 (Fed. Cir. 2002). "A patent grants the right to exclude others from making, using, selling, offering to sale, or importing the claimed apparatus or composition for any use of that apparatus or composition, whether or not the patentee envisioned such use." Union Oil Co. of California v. Atlantic Richfield Co., 208 F.3d 989, 995, 54 USPQ2d 1227, 1231 (Fed. Cir. 2000) , cert. denied, 531 U.S. 1183 (2001) ("The scope of [a patent's] composition claims cannot ... embrace only certain uses of that composition. See In re Spada, 911 F.2d 705, 708, 15 USPQ2d 1655, 1657 (Fed. Cir. 1990) . Otherwise [the] composition claims would mutate into method claims."; "[a] district court correctly applied this principle, refusing to narrow the scope of the claimed compositions to specific uses."). Design patents may be obtained on computer generated images and computer icons. Guidelines are codified for the USTPO to grant design patents on computer generated icons and images. Please see, Department of Commerce, Patent and Trademark Office, "Guidelines for Examination of Design Patent Applications for Computer-Generated Icons," 61 Fed. Reg. 11380 (March 20, 1996) . Subsequently, the PTO incorporated the guidelines in the MPEP. See U.S. Patent & Trademark Office, Manual of Patent Examining Procedure 1504.01(a) (7th ed. July 1998). The PTO set forth similar guidelines in the MPEP. U.S. Patent & Trademark Office, Manual of Patent Examining Procedure 1504.01(a) (8th ed. rev. Oct. 2005). 9

Case 4:13-cv-00342-KGB Document 27 Filed 11/06/13 Page 10 of 20

To a comment suggesting that "the language in the guidelines be amended to clarify that the guidelines satisfy the 'design for an article of manufacture' requirement of 35 U.S.C. 171," the PTO noted: "Computer-generated icons are designs within the meaning of 35 U.S.C. 171, but must be embodied in an article of manufacture to satisfy the statute. These guidelines are directed to determining whether the icon is embodied in an article of manufacture, not whether it is a design." 61 Fed. Reg. at 11381. "A patent claim may encompass uses not anticipated by the inventor and therefore not described in the patent. See Infigen, Inc. v. Advanced Cell Technology, Inc., 65 F. Supp. 2d 967, 975 (W.D. Wis. 1999). A patent applicant is not required to describe in

specification every conceivable future embodiment of invention." See SRI Int'l v. Matsushita Electric Corp., 775 F.2d 1107, 1121 (Fed. Cir. 1985). "One may not escape infringement by merely taking the claimed structure and using it in a way that differs from the description contained in the preferred embodiment." See American Standard Inc. v. Pfizer Inc., 722 F. Supp. 86, 105 n.10, 14 USPQ2d 1673, 1687 n.10 (D. Del. 1989). "A patentee's invention ... is not necessarily limited by his own misconception of its theory of operation." See Micro Motion Inc. v. Exac Corp., 741 F. Supp. 1426, 1441, 16 USPQ2d 1001, 1014 (N.D. Calif. 1990). The Plaintiffs design patent is for a stun device. The Defendants are using the design of the Plaintiffs design patent at a computer image and icon in a video game for a stun device. Simply because the Plaintiff did not obtain a design patent for a computer icon or image doesnt permit the Defendants to infringe on the Plaintiffs design patent. The Plaintiffs could not have anticipated that their design patent would be used in such a way. However, this does not prohibit the Plaintiffs from enforcing their exclusive rights to protect its patent. Additionally, if applied

10

Case 4:13-cv-00342-KGB Document 27 Filed 11/06/13 Page 11 of 20

for the Plaintiffs would be been granted a design patent on the computer image and icon of the design. The Defendants should be enjoined from infringing on the said design. To the ordinary observer one would believe the Defendants icon is related to connected and licensed by the Plaintiffs. The Plaintiffs learned of the infringing images from contacts all of the United States. These users associated the infringing images with the Plaintiffs design patent. The Plaintiffs patent is unique and is the sole inventor of the concept and design. A side by side comparison along with the evidence of no prior art, other than the Plaintiffs invention, reveals that the Defendants have infringed on the Plaintiffs design. The Plaintiffs have met their burden of pleading sufficient facts to move forward in the litigation. VI. The Plaintiffs Unique Design and Widespread Recognition Afford it Common Law Trademark Rights

The Plaintiffs design is unique. Since the designs inception in 2007 the mark of the design has obtained global recognition. The Plaintiffs unique intellectual property design has been extensively used for many years and has achieved widespread recognition, goodwill and fame in the stun gun industry. It has obtained trade dress of its mark. It is well settled in intellectual property law that persons may obtain common law trademark rights through use. The United States has a dual system of trademark law, federal registration or rights through common law. The Plaintiffs have actively used its mark in

commerce. A designation is used as a trademarkwhen the designation is displayed or otherwise made known to prospective purchasers in the ordinary course of business in a manner that associates the designation with the goods, services or business or the user Restatement 3rd of Unfair Competition 18 (1995).

11

Case 4:13-cv-00342-KGB Document 27 Filed 11/06/13 Page 12 of 20

The application section 15 U.S.C. 1125(a)(3), reads, In a civil action for trade dress infringement under this Act for trade dress not registered on the principal register, the person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional. Arkansas recognizes common law trademarks. There is ample authority for the

proposition that a person acquires a property right in a trade name merely by using the name in connection with a particular business for a period of time.Generally, the word trade name applies to a business and its good will, while the word trade-mark applies to the commodity to which it is affixed. King Pharr Canning Operations, Inc. v. Pharr Canning Co., 85 F.Supp. 150, 157 (W.D.Ark.1949). Trade names are afforded protection under the law of unfair competition. They are protected by a registration statute and by the common law. See Ark. Stat. Ann. 70539(E), 70 550 [now Ark.Code Ann. 471113], and 70552 (Repl.1979). Pullan v. Fulbright, 287 Ark. 21, 23, 695 S.W.2d 830, 831 (1985). [W]hen a name, mark or symbol has acquired a secondary meaning, the original user has a property right which equity will protect against unfair appropriation by a competitor. Champions Golf Club, Inc. v. Sunrise Land Corp., 846 F.Supp. 742, 757 (W.D.Ark.1994), quoting Pullan v. Fulbright, supra. Arkansas law of trademarks, trade names and unfair competition appears to be in accord with general trademark principles. Liberty Mutual Insurance Co. v. Liberty Ins. Co. of Texas, 185 F.Supp. 895, 903, 127 U.S.P.Q. 312 (E.D.Ark.1960). Arkansas courts have held in clearly distinguishable cases that the court will allow greater similarity in marks when businesses do not

12

Case 4:13-cv-00342-KGB Document 27 Filed 11/06/13 Page 13 of 20

deal with the general public, SaveaStop, Inc. v. SavaStop, Inc., 230 Ark. 319, 322 S.W.2d 454, 121 U.S.P.Q. 232 (1959), and that descriptive marks that have not acquired a secondary meaning will not be protected. Pullan v. Fulbright, 287 Ark. 21, 695 S.W.2d 830 (1985). An Arkansas plaintiff's cause of action sounding in Arkansas trademark

infringement, Ark.Code Ann. 471112 (1987), must meet the test required by the Lanham Act provisions for unfair competition and trademark infringement. Arkansas trademarks are

protected under the law of unfair competition through the registration statute as well as through the common law. A trademark valid at common law is valid under Arkansas law. Pullan v. Fulbright, 287 Ark. 21, 23, 695 S.W.2d 830, 227 U.S.P.Q. 493 (1985). In GASTON'S WHITE RIVER RESORT, v. RUSH, 701 F.Supp. 1431, 8 U.S.P.Q.2d 1209 (WD Ark. 1988), the Plaintiff filed a lawsuit against the Defendant on the same causes of action in the present case. The court held for the Plaintiff on all claims citing that the marks

were similar and caused confusion. The Defendants acts are likely to cause confusion, mistake or deception among purchasers and potential purchasers of the video games bearing the illegal copies of the Plaintiffs design. Purchasers and potential purchasers are likely to believe that illegal images in the Defendants video game originate from, or are in some way properly connected with, approved, sponsored and endorsed by the Plaintiffs. Due to the Plaintiffs long developed and maintained substantial goodwill in the stun gun industry is certainly has common law trademark rights to its unique stun gun design. Its 294 patent only strengthens its trademark rights. Additionally, the Plaintiffs possess a design patent and it is therefore, non-functional. The patent and trade dress mark are in the design not the 13

Case 4:13-cv-00342-KGB Document 27 Filed 11/06/13 Page 14 of 20

function. The Plaintiffs do not possess a utility patent on the functionality of a stun gun. The design and mark have appeared in numerous publications, catalogs and with the Plaintiffs permission, in motion pictures and television episodes. The most successful video game

manufacture should be held to the same standard in the industry. Likewise, as in Gastons the Plaintiffs rights to its trademark are being diminished and confusion is present to users of the Defendants video games. VI. The Defendants Actions Violate 15 U.S.C. 1125 and A.C.A. 4-88107

Federal trademark infringementand federal unfair competition, are measured by identical standards. WWF Inc., v. Big Dog Holdings, Inc., 280 F Supp 2d. 413 (WD Pa. 2003). The law of unfair competition has its roots in the common-law tort of deceit; its general concern is with protecting consumers from confusion as to source. Bonito Boats, Inc., v. Thunder Craft Boats, Inc., 489 U.S. 141, 157 S.Ct. 971 (1989). The applicable federal legal standard is codified at 15 U.S.C. 1125, false designations of origin, false descriptions, and dilution forbidden, otherwise known as the Lanham Act. The applicable sections reads, (a) Civil action. (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which--(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or (3) In a civil action for trade dress infringement under this Act for trade dress not registered on the principal register, the person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional.

14

Case 4:13-cv-00342-KGB Document 27 Filed 11/06/13 Page 15 of 20

Likelihood of confusion is essence of unfair competition. Gaylord Entmt Co. v. Gilmore Entmt Group, LLC., 187 F Supp 2d 926 (MD Tenn 2002). Test of infringement under the

Lanham Act is likelihood of confusion. Chopra v. Kapur, 185 USPQ 195 (ND Cal. 1974). Courts have addressed unfair competition in the video game industry. The copying of

appearances and movements of video game characters that have acquired secondary meaning causes irreparable harm. Please see Midway Mfg. Co., v. Dirkschneider, 543 F Supp 466, 214 USPQ417 (DC Neb. 1981). A modified PAC-MAN video game kit was found to infringe on the trade dress of the original PAC-MAN video game due to the confusion to the consumer and therefore, was unfair competition under the Lanham Act. Please see Midway Mfg. Co., v. Stohon, 564 F Supp 741, 219 USPQ 42 (ND Ill. 1983). In Giro Sport Design, Inc., v. Pro-Tec, Inc., 16 USPQ 2d 1760 (WD Wash. 1990), the Court held that the Defendants differences from nonfunctional aspects of the Plaintiffs design patent of a bicycle helmet cover were sufficient to grant summary judgment to non-infringement; but, trade dress similarities raised questions of fact for a trial on unfair competition. Likelihood of confusion is a question of law to be determined by seven factual considerations: a) strength of owner's mark, b) proximity of the goods or services offered, c) similarity of the marks, d) evidence of actual confusion, e) marketing channels used, f) type of services and the degree of care likely to be exercised by the consumer, g) the defendants' intent, and h) the likelihood of expansion. General Mills v. Kellogg Co., 824 F.2d 622, 3 U.S.P.Q.2d 1442 (8th Cir.1987); A.M.F., Inc. v. Sleekcraft Boats, 599 F.2d 341, 34849, 204 U.S.P.Q. 808 (9th Cir.1979); 3A Callman Unfair Competition, Trademarks & Monopolies, 82.1 (4th Ed.1983).

15

Case 4:13-cv-00342-KGB Document 27 Filed 11/06/13 Page 16 of 20

Under Arkansas law for an act to constitute unfair competition, the act complained of must be one that creates in the ordinary course of business an unfair method of competing. Courts in Arkansas define unfair competition as the simulation by one person, for the purpose of deceiving the public, of the names, symbols or devices employed by a business rival ... thereby obtaining for such person the benefits properly belonging to such person's competitor. Esskay Art Galleries v. Gibbs, 205 Ark. 1157, 172 S.W.2d 924, 58 U.S.P.Q. 623 (1943). The term means a course of dealing which leads, or is likely to lead, consumers into believing that the goods or services of one supplier are those of another. Southwestern Bell Tel. Co. v. Nationwide Independent Directory Service, Inc., 371 F.Supp. 900, 182 U.S.P.Q. 193 (W.D.Ark.1974); Heuer v. Parkhill, 114 F.Supp. 665, 99 U.S.P.Q. 33 (W.D.Ark.1951). Arkansass Deceptive Trade Practices Act may be found at A.C.A. 4-88-107. The relevant parts of this statutes states, (a) Deceptive and unconscionable trade practices made unlawful and prohibited by this chapter include, but are not limited to, the following: (1) Knowingly making a false representation as to the characteristics, ingredients, uses, benefits, alterations, source, sponsorship, approval, or certification of goods or services or as to whether goods are original or new or of a particular standard, quality, grade, style, or model; (2) Disparaging the goods, services, or business of another by false or misleading representation of fact. . . . (10) Engaging in any other unconscionable, false, or deceptive act or practice in business, commerce, or trade. . . Plaintiffs have a strong mark associated with their product and goodwill. The Plaintiff is the legal owner of patents for a product known as Blast Knuckle Stun Gun, patent No. US D561,294 S and patent No. US D576,246 S. The Plaintiffs product, the Zap Blast Knuckle embodies the US D561, 294 S design patent. When the Zap Blast Knuckle is operated by a 16

Case 4:13-cv-00342-KGB Document 27 Filed 11/06/13 Page 17 of 20

user it produces a 950,000 volt electrical shock. A user holds the Zap Blast Knuckle as if holding a pair of brass knuckles. The Plaintiffs design is unique. Since the designs inception in 2007 the mark of the design has obtained global recognition. The Defendants video game, Call of Duty, Black Ops II, for platforms, Xbox, PlayStation 3, Wii and MICROSOFT WINDOWS may be purchased virtually anywhere in the world and certainly there is a strong coorilation between the Defendants video game content and the industry of personal defense products. The Plaintiffs 294 patent and its unique design mark are substinally identical to the Defendants Combat Suppression Knuckles or Galvaknuckles in the Defendants video game, Call of Duty, Black Ops II. In the video game Call of Duty, Black Ops II on and in all platforms a player, via an avatar, may access these weapons called via icons that are illegal images that embody the Plaintiffs US D561, 294 S patent design. See the images in this very Response. There is evidence of confusion. To the ordinary observer one would believe the

Defendants icon is related to connected and licensed by the Plaintiffs. The Plaintiffs learned of the infringing images from contacts all of the United States. These users associated the

infringing images with the Plaintiffs design patent. The Plaintiffs patent is unique and is the sole inventor of the concept and design. A side by side comparison along with the evidence of no prior art, other than the Plaintiffs invention, reveals that the Defendants have infringed on the Plaintiffs design. The Plaintiffs can only support this element via the opportunity to start discovery. The Plaintiff specializes in the manufacture and distribution of stun guns, gun cleaning kits, and other personal protection devices. The Plaintiff markets and sales this device through 17

Case 4:13-cv-00342-KGB Document 27 Filed 11/06/13 Page 18 of 20

trade specialty shows throughout the United States, as well as through internet distribution. Its clients include: Gander Mountain, Cableas, National Rifle Association, Bass Pro Shop, Academy and The Sportsmans Guide. The Plaintiffs work in the defense industry. The

Defendants video game is a virtual game of using defense weaponry. The Plaintiffs have attended national tradeshows where the Defendants product was on display at the same trade show as the Plaintiffs stun gun. This is why the Plaintiffs were contacted by players associating their unique mark with the Defendants video game. The Defendants business acts are unconscionable, false, and deceptive. The Defendants video game, Call of Duty, Black Ops II was the most successful video game of 2012. The Defendants did not obtain the express permission from the Plaintiffs to use its images or marks. It would have been a simple exercise. However, the Defendants choose to be the bully in the marketplace. The Plaintiffs design is too unique for the Defendants not to have known. There was no other design of this sort in the world prior to the Plaintiffs placing it in the stream of commerce. The Defendants acts have caused confusion, mistake or deception among purchasers and potential purchasers of the video games bearing the illegal copies of the Plaintiffs design. Purchasers and potential purchasers are likely to believe that illegal images in the Defendants video game originate from, or are in some way properly connected with, approved, sponsored and endorsed by the Plaintiffs. The Defendants acts are deceptive and therefore, have exposed itself to the liability of the Arkansass Deceptive Trade Practices Act.

18

Case 4:13-cv-00342-KGB Document 27 Filed 11/06/13 Page 19 of 20

VII.

Conclusion

WHEREFORE, the Court should find that the Plaintiffs have stated facts legally sufficient at this stage in the litigation to support its claims for patent infringement, trademark infringement, unfair competition, and deceptive trade practice and that the matter shouldnt be dismissed. Discovery has not started and the record is not complete. Plaintiffs have met the burden to move forward in its pursuit of justice.

Dated: November 6, 2013

STEWART LAW FIRM /s/ Chris H. Stewart By: Chris H. Stewart Ark. Bar No. 03-222 Attorney for Plaintiffs 904 Garland Street Little Rock, AR 72201 Phone: 501-353-1364 Fax: 501-353-1263 Email: arklaw@comcast.net Attorney for Plaintiffs, Billy Pennington and P.S. Products, Inc.

19

Case 4:13-cv-00342-KGB Document 27 Filed 11/06/13 Page 20 of 20

CERTIFICATE OF SERVICE I, the undersigned, hereby certify that the foregoing was electronically filed with the Clerk which shall send notification of such filing to the following: Richard Glasgow bglasgow@wlj.com

On this 6th day of November, 2013.

By: /s/ Chris H. Stewart Chris H. Stewart

20