Coast Cutlery v. Ideapond - Complaint

Case 3:21-cv-00033-AJB-MDD Document 1 Filed 01/08/21 PageID.
1 Page 1 of 28
1 Michael J. Hickman, SBN#149624

2 Email: m.hickman@musickpeeler.com
MUSICK, PEELER & GARRETT LLP
3 225 Broadway, Suite 1900
4 San Diego, CA 92101-5028
Telephone: 619.525.2500
5 Facsimile: 619.231.1234
6
Peter E. Heuser, SBN#111600
7 Email: pheuser@schwabe.com
8 SCHWABE, WILLIAMSON & WYATT, P.C.
1211 SW 5th Avenue, Suite 1900
9 Portland, OR 97204
10 Telephone: 503.222.9981
11 Attorneys for Plaintiff,

12 Coast Cutlery Co. dba Coast Products
13
14
15 UNITED STATES DISTRICT COURT
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FOR THE SOUTHERN DISTRICT OF CALIFORNIA
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18
19 COAST CUTLERY CO. dba Case No. '21CV0033 AJB MDD
20 COAST PRODUCTS, an Oregon
corporation, COMPLAINT FOR FEDERAL
21 TRADEMARK INFRINGEMENT,
22 Plaintiff, LANHAM ACT VIOLATIONS,
UNFAIR COMPETITION, AND
23 vs. PATENT INFRINGEMENT
24
IDEAPOND, LLC, a Nevada limited DEMAND FOR JURY TRIAL
25 liability company, and DENNIS K.
26 BERTKEN, an individual,
27 Defendants.
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COMPLAINT CASE NO.:
Case 3:21-cv-00033-AJB-MDD Document 1 Filed 01/08/21 PageID.2 Page 2 of 28
1 Plaintiff Coast Cutlery Co. dba Coast Products (“Coast”) brings this Complaint
2 against Defendant Ideapond, LLC (“Ideapond”) and Defendant Dennis K. Bertken
3 (“Bertken”) (collectively “Defendants”), and alleges as follows:
4 THE PARTIES
5 Coast and its Products
6 1. Coast is an Oregon company headquartered in Portland, Oregon and
7 doing business throughout the United States and in many foreign countries. Coast is
8 primarily in the business of selling lighting products such as flashlights, headlamps,
9 and work lights, as well as sporting knives and hand tools for use by outdoor
10 enthusiasts, military, police, and in a wide variety of commercial and every day
11 individual activities. A full description of the products Coast sells may be found on its
12 website www.coastportland.com.
13 2. Coast sells many of its lighting products throughout the United States,
14 including California, this judicial district, and many foreign countries under the
15 POLYSTEEL® trademark. A majority of its sales are through big box stores and
16 Internet-based retailers such as Amazon. As a result of its use of the POLYSTEEL
17 mark, Coast has built up substantial good will with customers, who have come to
18 recognize the POLYSTEEL mark as originating with Coast. Coast applied for and was
19 granted U.S. Trademark Registration No. 4,769,073 on the Principal Register for the
20 POLYSTEEL® mark for “flashlights and for parts of hand tools, namely handles sold
21 as an integral component of knives and multi-function hand tools comprised of knives,
22 screwdrivers and pliers.” A copy of the Coast POLYSTEEL trademark registration is
23 appended hereto as Exhibit A. An Affidavit of Continued Use has been filed in a
24 timely fashion so Coast’s POLYSTEEL® trademark registration is incontestable
25 under 22 U.S.C. § 1065.
26 3. One of the flashlights Coast has been selling under the POLYSTEEL
27 trademark is its POLYSTEEL 400 flashlight. The POLYSTEEL 400 flashlight is
28 fabricated with a flat black polycarbonate body and a stainless steel core. A
2
COMPLAINT CASE NO.:
1 cylindrical handle portion bears an array of non-functional and distinctive, bold,

2 inclined, raised bands. It also includes an enlarged head, an expanded tail cap with
3 wedge-shaped indentations, an on/off switch on the very end, and a distinctive lanyard
4 loop. The flashlight includes the COAST name extending axially in all capital letters
5 in a monochromic display.
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11 POLYSTEEL 400
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One way in which Coast points out the durability of the POLYSTEEL 400 flashlight,
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and particularly its stainless steel core, is a depiction of the flashlight with half of the
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handle portion peeled away to expose the “tough-as-nails stainless steel core.”
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4. Coast has been selling its POLYSTEEL 400 flashlight throughout the
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United States and in this judicial district for many years. As a result of those sales,
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Coast has built up substantial good will with customers who have come to recognize
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the trade dress of this flashlight as originating with Coast.
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COMPLAINT CASE NO.:
1 5. Another of the lights Coast has been selling under the POLYSTEEL
2 trademark is its POLYSTEEL 400 Swivel Light. This light is also fabricated of a flat
3 black polycarbonate body with a stainless steel core. It includes an enlarged head with
4 a serrated front, an expanded tail cap with wedge-shaped indentations, a magnet and
5 an on/off switch on the very end, and the same distinctive lanyard loop used on the
6 POLYSTEEL 400 flashlight. The light includes the COAST name extending axially
7 in all capital letters in a monochromic display. A swivel is disposed immediately
8 behind the head, permitting the head to swivel 180 degrees from side to side. Behind
9 the swivel, the light narrows down in a 45-degree angle throat to a cylindrical handle
10 portion bearing an array of non-functional and distinctive, bold, inclined, raised bands.
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18 6. Coast has been selling its POLYSTEEL 400 Swivel light throughout the
19 United States and in this judicial district for many years. As a result of those sales,
20 Coast has built up substantial good will with customers, who have come to recognize
21 the appearance and configuration of this light as originating with Coast.
22 7. In addition to selling the POLYSTEEL 400 Flashlight and the
23 POLYSTEEL 400 Swivel Light, Coast has for many years sold other flashlights in its
24 POLYSTEEL line bearing the array of non-functional and distinctive, bold, inclined,
25 raised bands on the handle portions. They are all fabricated with a flat polycarbonate
26 body and a stainless steel core, and each includes an enlarged head with a serrated
27 front, and expanded tail cap with wedge-shaped indentations, an on/off switch on the
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COMPLAINT CASE NO.:
1 very end, and the same distinctive lanyard loop. These lights all include the COAST
2 name extending axially in all capital letters in a monochromic display.
3 All but the COAST CREW POLYSTEEL 600R are fabricated entirely in black.
4 8. These include, among others, the POLYSTEEL 100, POLYSTEEL 200,
5 POLYSTEEL 400 Magnet, POLYSTEEL 400R, POLYSTEEL 600, POLYSTEEL
6 600R, Coast Crew POLYSTEEL 600R, POLYSTEEL 700, and the POLYSTEEL
7 1000.
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COMPLAINT CASE NO.:
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9. As a result of the sales of polycarbonate flashlights, each having an array
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of bold, inclined, raised bands on the handle portion, an enlarged head with a serrated
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front, an expanded tail cap with wedge-shaped indentations, an on/off switch on the
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very end, and a distinctive lanyard loop, Coast has built up substantial good will with
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customers who have come to recognize the trade dress of Coast’s POLYSTEEL line
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of lights as originating with Coast.
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10. As shown in paragraph 8 above, Coast designates its flashlights using the
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digits 100, 200, 400, 600 and 1000 in association with the POLYSTEEL mark. These
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numbers are not based on any objective measurement of light output or any other
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characteristic of the lights. The smaller digits simply represent smaller lights and the
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larger digits simply designate larger lights. These digit references have been used with
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Coast POLYSTEEL flashlights and headlamps for many years and customers and
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prospective customers tend to associate such numbers with Coast, especially when
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used in association with its POLYSTEEL mark.
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11. In addition to developing good will with customers as to the above-
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described flashlights, Coast has patented certain aspects of other Coast products. One
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such patent is U.S. Patent No. D823,508 directed to a Flashlight Bezel (“the ’508
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Patent”). A copy of the ‘508 Patent is appended as Exhibit B hereto. One of the
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figures from the ’508 Patent is depicted below:
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COMPLAINT CASE NO.:
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8 12. The ’508 Patent was fully examined by the United States Patent and
9 Trademark Office (“PTO”) and was duly and legally issued after such examination.
10 Coast owns the right, title, and interest in the ’508 Patent, and the patent has been
11 properly maintained by Coast.
12 Defendants and Their Products
13 13. Defendant Ideapond is, on information and belief, a Nevada limited
14 liability company, registered to do business in California, with a principal office at
15 4228 Sturgeon Court, San Diego, California 92130. Ideapond is also in the business of
16 selling flashlights and other lights. Defendant Bertken is, on information and belief,
17 the Managing Member and CEO of Ideapond, and is intimately involved in running
18 Ideapond and in making all major decisions for Ideapond. On information and belief,
19 he would have made the decision to introduce the infringing products and engage in
20 the practices accused of infringement in this lawsuit. Ideapond owns five design
21 patents directed to various types of lights, and Bertken is the sole inventor as to all of
22 those patents, showing how involved he is in the design of Ideapond lights. On
23 information and belief, a majority of Defendants’ sales are through big box stores and
24 Internet-based retailers such as Amazon.
25 14. On information and belief, Defendants market a wide variety of
26 flashlights and other lights under the trademark P-STEEL. One of the flashlights they
27 market is what they call their P-STEEL 500. Ideapond’s P-STEEL flashlights are
28 marketed in association with the same numbers used by Coast in connection with the
9
COMPLAINT CASE NO.:
1 marketing of its POLYSTEEL flashlights. So, for example, Defendants sell a P-

2 STEEL 400 swivel light, a P-STEEL 500 flashlight, and a P-STEEL 1000 flashlight.
3 Defendants represent that these digits correspond with the lumen output of the lights
4 but, on information and belief, none of these lights put out 400, 500, or 1000 lumens.
5 15. On information and belief, one of the P-STEEL lights being marketed by
6 Defendants is the P-STEEL 500 flashlight. That flashlight is depicted below.
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13 P-STEEL 500
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It can be seen that, like the POLYSTEEL 400 flashlight, the P-STEEL 500 flashlight
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is fabricated with a flat black polycarbonate body and a stainless steel core. Like the
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POLYSTEEL 400 flashlight, it includes a cylindrical handle portion that bears an
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array of non-functional, bold, inclined, raised bands. It also includes an enlarged head,
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an expanded tail cap with wedge-shaped indentations, an on/off switch on the very
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end, and a lanyard loop that is identical to that included in the POLYSTEEL line. As
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the Coast lights bear the COAST name extending axially in all capital letters in a
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monochromic display, the Ideapond light includes the DURACELL name extending
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axially in all capital letters in a monochromic display in approximately the same size
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as used by Coast. Defendants market this flashlight in association with the number
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500 even though, on information and belief, this light does not put out 500 lumens of
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light.
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16. To promote the fact that the P-STEEL 500 is durable and particularly that
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it includes a stainless steel core, on information and belief Defendants use a virtual
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COMPLAINT CASE NO.:
1 identical depiction as is used by Coast and referenced above, showing the flashlight
2 with half of the handle portion peeled away to expose its “rugged stainless steel core.”
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14 17. Another light that is, on information and belief, marketed by Defendants
15 under the P-STEEL mark is a swivel light that is virtually identical to the
16 POLYSTEEL 400 Swivel Light referenced above. Like the POLYSTEEL 400 Swivel
17 Light, the P-STEEL 400 swivel light is fabricated of a flat black polycarbonate body
18 with a stainless steel core, and an enlarged head with a serrated front. Like the
19 POLYSTEEL 400 Swivel Light, Defendants’ P-STEEL 400 swivel light is sold under
20 the prominent 400 designation, even though, on information and belief, Defendants’
21 swivel light does not put out 400 lumens.
22 18. Like the POLYSTEEL 400 Swivel Light, the P-STEEL 400 swivel light
23 has a swivel disposed immediately behind the head, permitting the head to swivel 180
24 degrees from side to side. Behind the swivel, the light narrows down in a 45-degree
25 angle throat to a cylindrical handle portion bearing an array of non-functional and
26 distinctive, bold, inclined, raised bands. Like the POLYSTEEL 400 Swivel Light, it
27 includes an enlarged head with a serrated front, an expanded tail cap with wedge-
28 shaped indentations, and a magnet and an on/off switch on the very end. Like the
11
COMPLAINT CASE NO.:
1 Coast lights include the COAST name extending axially in all capital letters in a
2 monochromic display, the P-STEEL 400 swivel light includes the DURACELL name
3 extending axially in all capital letters in a monochromic display.
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5 P-STEEL Swivel 400
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19. Another product that, on information and belief, has been and is being
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sold by Defendants is their DURACELL 500 flashlight. This flashlight is depicted
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below:
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25 As will be demonstrated in more detail below, the DURACELL 500 flashlight sold by
26 Defendants can be seen to include the same bezel design claimed and shown in solid
27 lines in the Coast ’508 Patent.
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COMPLAINT CASE NO.:
1 NATURE OF THE ACTION

2 20. This is an action for trademark infringement and unfair competition
3 arising under the Lanham Act, 15 U.S.C. §§ 1051 et seq., for unlawful trade practices
4 and trademark infringement. The lawsuit pertains to Defendants’ infringement of
5 Coast’s registered trademark to the POLYSTEEL mark by selling virtually identical
6 products under the P-STEEL trademark. It also relates to trade dress infringement and
7 unfair competition under the Lanham Act based on Defendants selling flashlights and
8 swivel lights that are confusingly similar to Coast’s POLYSTEEL 400 Flashlight and
9 its POLYSTEEL 400 Swivel Light, again, under the P-STEEL trademark. The present
10 action also is based on Defendants’ use of a similar marketing scheme by depicting
11 an angularly set depiction of their flashlight with a portion of the covering peeled
12 away to expose a “tough as nails stainless steel core” (Coast) or a “rugged stainless
13 steel core” (Defendants).
14 21. This is also an action against Ideapond for patent infringement under 35
15 U.S.C. §§ 271 and 289 for importing into, using, inducing others to use, selling and/or
16 offering for sale flashlights that embody the design depicted and claimed in the ’508
17 Patent.
18 JURISDICTION AND VENUE
19 22. Coast’s causes of action for federal trademark infringement and Lanham
20 Act violations against Defendants arise under the laws of the United States, including
21 35 U.S.C. § 1051 et seq. Coast’s cause of action for patent infringement against
22 Ideapond arises under the patent laws of the United States, including 35 U.S.C. § 271
23 et seq. This Court has original jurisdiction over this subject matter pursuant to 28
24 U.S.C. §§ 1331, 1332, 1338 and 15 U.S.C. § 1121.
25 23. This Court has personal jurisdiction over Ideapond because Ideapond is
26 registered to do business in the State of California, maintains a principal office in the
27 State of California, regularly conducts business in the State of California, and
28 continues to commit acts of infringement and unfair competition by using, offering to
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COMPLAINT CASE NO.:
1 sell, and/or selling infringing products within the State of California and this district.
2 This Court has personal jurisdiction over Bertken because, on information and belief,
3 Bertken resides in the State of California, regularly conducts business in the State of
4 California, and continues to commit acts of infringement and unfair competition by
5 using, offering to sell, and/or selling infringing products within the State of California
6 and this district.
7 24. Venue is proper in this judicial district under 28 U.S.C. §§ 1391(b) and
8 (c) and 1400(b) because Defendants reside in this judicial district, and a substantial
9 part of the events giving rise to Coast’s claims occurred here, including events giving
10 rise to Coast’s trademark infringement, unfair competition, and patent infringement
11 claims. Defendants regularly transact and solicit business in this district, including
12 with respect to the infringing activities at issue in this case.
13 CLAIMS FOR RELIEF
14 COUNT I
15 TRADEMARK INFRINGEMENT (15 U.S.C. § 1114)
16 25. Coast restates and realleges each of the allegations of paragraphs 1-24 as
17 if fully set forth herein.
18 26. The U.S. Trademark Office duly and legally issued federal trademark
19 registration number 4,769,073 to the POLYSTEEL® trademark on July 7, 2015, and
20 that registration is valid and subsisting. An Affidavit of Continued Use has been filed
21 in a timely fashion, so Coast’s POLYSTEEL® trademark registration is incontestable
22 under 22 U.S.C. § 1065.
23 27. Coast has used the POLYSTEEL trademark in commerce continuously
24 from September 11, 2014 through to the present to designate itself as the source of its
25 flashlights and parts of hand tools noted in the registration.
26 28. Coast is the exclusive owner of the POLYSTEEL trademark.
27 29. Coast uses the POLYSTEEL trademark as a designation of source and
28 quality for its goods and services.
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COMPLAINT CASE NO.:
1 30. Coast uses the registration symbol “®” on its goods and in advertising
2 associated with the POLYSTEEL trademark and its line of products.
3 31. As shown in paragraph 8 above, Coast designates its flashlights using the
4 digits 100, 200, 400, 600 and 1000 in association with the POLYSTEEL mark. These
5 numbers are not based on any objective measurement of light output or any other
6 characteristic of the lights. The smaller digits simply represent smaller lights and the
7 larger digits simply designate larger lights. These digit references have been used with
8 Coast POLYSTEEL flashlights and headlamps for many years and customers and
9 prospective customers tend to associate such numbers with Coast, especially when
10 used in association with its POLYSTEEL mark.
11 32. There is a likelihood of confusion or association or sponsorship due to
12 Defendants using the confusingly similar P-STEEL mark in the marketing of
13 flashlights and other lights. By using the confusingly similar “P-STEEL” mark in
14 connection with sales and promotion of its flashlights and other lights, Defendants are
15 infringing Coast’s exclusive rights in the POLYSTEEL trademark in violation of
16 15 U.S.C. § 1114.
17 33. The likelihood of confusion between Coast’s use of POLYSTEEL and
18 Defendants’ use of P-STEEL for flashlights and other lights is exacerbated by (1)
19 Defendants prominently using 400, 500, and 1000 digits in connection with the
20 marketing of their P-STEEL lights, (2) Defendants using similar marketing materials
21 to those used by Coast to show the ruggedness of its stainless steel core, (3)
22 Defendants replicating the design of prominent Coast lights, (4) Defendants
23 incorporating into their light handles a trade dress that is confusingly similar to
24 Coast’s trade dress, comprising an array of non-functional and distinctive, bold,
25 inclined, raised bands, and (5) Defendants marketing their products through the same
26 channels, to the same customers, using the same marketing techniques and depictions
27 as Coast.
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COMPLAINT CASE NO.:
1 34. The afore-described practices of Defendants in marketing their lights is

2 likely to confuse, deceive, and cause mistake among consumers and therefore
3 infringes Coast’s rights in its POLYSTEEL trademark in violation of 15 U.S.C. §
4 1114.
5 35. On information and belief, Defendants have deliberately attempted to
6 deceive customers or prospective customers of Coast into believing that there is some
7 affiliation, association, or sponsorship between Ideapond and its P-STEEL line of
8 products and Coast and its POLYSTEEL line of products. The intentional nature of
9 the infringement is further evidenced by the five factors noted in paragraph 33above.
10 36. Coast has no adequate remedy at law for Defendants’ infringements of
11 the POLYSTEEL trademark, in that: (i) the POLYSTEEL trademark is unique and
12 valuable property, injury to which cannot adequately be compensated by monetary
13 damages; (ii) the infringement injures and threatens to continue to injure Coast’s
14 reputation and goodwill; (iii) the injury resulting to Coast from Defendants’ wrongful
15 conduct, and the conduct itself, are continuing; and (iv) Coast would be required to
16 bring a multiplicity of suits to achieve full redress for the injuries caused thereby.
17 37. Unless restrained, Defendants’ infringement of the POLYSTEEL
18 trademark will continue to cause irreparable injury to Coast, both during the pendency
19 of this action and thereafter. Coast is therefore entitled to an order from this Court
20 preliminarily and permanently enjoining Bertken and Ideapond and its agents,
21 employees, and others acting in concert with them, from directly or indirectly
22 infringing the POLYSTEEL trademark in any manner, including by using the P-
23 STEEL mark or any other mark, design, or logo that is confusingly similar to the
24 POLYSTEEL trademark, in connection with the sale, offer for sale, advertising, or
25 promotion of flashlights and other lights.
26 38. Coast is further entitled to an accounting for Defendants’ profits realized
27 due to the infringement or actual damages Coast sustained as a result of the
28 infringement, as well as its attorneys’ fees and other costs herein.
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COMPLAINT CASE NO.:
1
COUNT II
2
LANHAM ACT VIOLATIONS (15 U.S.C. § 1125)
3
as to the Sale of the P-STEEL 400 Flashlight
6 40. Coast has been and is selling its POLYSTEEL 400 Flashlight in
7 substantial volumes throughout the United States for many years. The POLYSTEEL
8 400 Flashlight has a distinctive, non-functional trade dress, and customers and
9 prospective customers have come to recognize that the POLYSTEEL 400 Flashlight
10 comes from Coast. The flashlight has also established a reputation as a high quality
11 product that is going to perform under the most adverse of conditions.
12 41. As a result of Defendants’ introduction of the P-STEEL 500 flashlight, a
13 likelihood of confusion has arisen and will continue between the trade dress of this
14 flashlight and that of Coast’s original POLYSTEEL 400 flashlight. Not only are they
15 marketed under confusingly similar trademarks, but the non-functional configuration
16 of Defendants’ product will, on its own, lead to confusion on the part of the
17 purchasing public. Both flashlights are fabricated with flat black polycarbonate bodies
18 and a stainless steel core. Each includes an enlarged head with a cylindrical handle
19 portion that bears an array of non-functional and distinctive, bold, inclined, raised
20 bands. The tail caps of both flashlights are expanded, with wedge-shaped indentations,
21 and include an on/off switch at the very end.
22 42. The likelihood of confusion between the trade dress of Coast’s
23 POLYSTEEL 400 flashlight and that of the P-STEEL 500 flashlight is exacerbated
24 here by (1) Defendants marketing their product using a similar P-STEEL trademark,
25 (2) Defendants using a 500 number similar to the 400 number used by Coast in
26 connection with its POLYSTEEL 400, (3) Defendants marketing the flashlight
27 through the same marketing channels and to the same customers, and (4) Defendants
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COMPLAINT CASE NO.:
1 using the same marketing techniques and depictions demonstrating their use of a
2 rugged stainless steel core. This is likely to confuse, deceive, and cause mistake
3 among consumers and therefore infringes Coast’s rights in its POLYSTEEL 400
4 flashlight in violation of 15 U.S.C. § 1114.
5 43. The foregoing conduct and actions by Defendants are likely to cause
6 confusion, or to cause mistake, or to deceive as to the affiliation or association of
7 Ideapond with Coast, or as to the sponsorship or approval of the P-STEEL 500 with
8 Coast’s POLYSTEEL 400 flashlight.
9 44. Defendants’ actions also misrepresent the nature, characteristics, or
10 qualities of their P-STEEL 500 flashlight.
11 45. On information and belief, Defendants have deliberately deceived
12 customers or prospective customers of Coast into believing that there is some
13 affiliation or association between Ideapond and its P-STEEL 500 flashlight and
14 Coast’s POLYSTEEL 400 flashlight. Such deliberate attempts to deceive customers is
15 evidenced by the four factors set forth in paragraph 42 above.
16 46. Coast has no adequate remedy at law for the foregoing wrongful conduct
17 of Defendants in the marketing of the P-STEEL 500 flashlight, in that: (i) Defendants’
18 actions injure and threaten to continue to injure Coast’s rights in its POLYSTEEL 400
19 flashlight, which cannot adequately be compensated by monetary damages; (ii)
20 Defendants’ wrongful acts injure and threaten to continue to injure Coast’s reputation
21 and goodwill; (iii) the injury resulting to Coast from Defendants’ wrongful conduct,
22 and the conduct itself, are continuing; and (iv) Coast would be required to bring a
23 multiplicity of suits to achieve full compensation for the injuries caused thereby.
24 47. Unless restrained, the foregoing wrongful acts of Defendants as to the P-
25 STEEL 500 flashlight will continue to cause irreparable injury to Coast, both during
26 the pendency of this action and thereafter. Coast is therefore entitled to an order from
27 this Court preliminarily and permanently enjoining Bertken and Ideapond and its
28 agents, employees, and others acting in concert with it, from directly or indirectly: (i)
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COMPLAINT CASE NO.:
1 manufacturing, producing, distributing, circulating, selling, offering for sale,

2 advertising, promoting or displaying the P-STEEL 500 product or any product that is
3 confusingly similar to Coast’s POLYSTEEL 400 flashlight or that tends to relate or
4 connect the P-STEEL 500 flashlight with that of Coast, or (ii) making any false
5 description or representation of origin concerning the P-STEEL 500 flashlight.
9
COUNT III
10
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as to the Sale of the P-STEEL Swivel Light
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15 50. Coast has been selling its POLYSTEEL 400 Swivel Light in substantial
16 volumes throughout the United States for many years. Given that, and the fact that the
17 POLYSTEEL Swivel light has distinctive, non-functional trade dress, customers and
18 prospective customers have come to recognize that the POLYSTEEL 400 Swivel light
19 comes from Coast. The flashlight has also established a reputation as a high quality
20 product that is going to perform under the most adverse of conditions.
21 51. As a result of Defendants’ introduction of the P-STEEL 400 Swivel
22 light, a likelihood of confusion has arisen and will continue between the trade dress of
23 this flashlight and that of Coast’s original POLYSTEEL 400 Swivel light. Not only
24 are they marketed under confusingly similar trademarks, but the trade dress of
25 Defendants’ product will, on its own, lead to confusion on the part of the purchasing
26 public. Both lights are fabricated with flat black polycarbonate bodies with a stainless
27 steel core. They both include an enlarged head with a serrated front. In each light, a
28 swivel is disposed immediately behind the head, permitting the head to swivel 180
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COMPLAINT CASE NO.:
1 degrees from side to side. Behind the swivel, the lights narrow down in a 45-degree
2 angle throat to a cylindrical handle portion bearing an array of non-functional and
3 distinctive, bold, inclined, raised bands. Both lights include an expanded tail cap with
4 a magnet and an on/off switch at the very end.
5 52. The likelihood of confusion between the trade dress of Coast’s
6 POLYSTEEL 400 Swivel Light and the P-STEEL 400 swivel light is exacerbated
7 here by (1) Defendants marketing their product under a confusingly similar P-STEEL
8 trademark, (2) Defendants prominently using the number 400 in connection with the
9 marketing of the product like Coast’s POLYSTEEL 400 Swivel Light, even though,
10 on information and belief, the P-STEEL 400 swivel light does not put out 400 lumens,
11 and (3) Defendants selling the P-STEEL 400 swivel light through the same marketing
12 channels and to the same customers. This is likely to confuse, deceive, and cause
13 mistake among consumers and therefore infringes Coast’s rights in its POLYSTEEL
14 400 Swivel Light in violation of 15 U.S.C. § 1114.
16 confusion, or to cause mistake, or to deceive as to the affiliation, connection, or
17 association of Ideapond with Coast, or as to the sponsorship or approval of the P-
18 STEEL 400 swivel light with Coast’s POLYSTEEL 400 Swivel Light.
19 54. Defendants’ actions also misrepresent the nature, characteristics, or
20 qualities of their P-STEEL 400 swivel light.
23 affiliation or association between Ideapond and its P-STEEL 400 swivel light and
24 Coast’s POLYSTEEL 400 Swivel Light. Such deliberate attempts to deceive
25 customers is evidenced by the three factors set forth in paragraph 52 above.
27 of Defendants in the marketing of their P-STEEL 400 swivel light, in that: (i)
28 Defendants’ actions injure and threaten to continue to injure Coast’s rights in the trade
20
COMPLAINT CASE NO.:
1 dress of its POLYSTEEL 400 Swivel Light, which cannot adequately be compensated
2 by monetary damages; (ii) the wrongful acts of Defendants injure and threaten to
3 continue to injure Coast’s reputation and goodwill; (iii) the injury resulting to Coast
4 from Defendants’ wrongful conduct, and the conduct itself, are continuing; and (iv)
5 Coast would be required to bring a multiplicity of suits to achieve full compensation
6 for the injuries caused thereby.
7 57. Unless restrained, the foregoing wrongful acts of Defendants as to their
8 P-STEEL 400 swivel light will continue to cause irreparable injury to Coast, both
9 during the pendency of this action and thereafter. Coast is therefore entitled to an
10 order from this Court preliminarily and permanently enjoining Bertken and Ideapond
11 and its agents, employees, and others acting in concert with it, from directly or
12 indirectly: (i) manufacturing, producing, distributing, circulating, selling, offering for
13 sale, advertising, promoting or displaying their P-STEEL 400 swivel light or any
14 product that is confusingly similar to Coast’s POLYSTEEL 400 Swivel Light or that
15 tends to relate or connect their P-STEEL 400 swivel light with that of Coast, or (ii)
16 making any false description or representation of origin concerning the P-STEEL 400
17 swivel light.
21
COUNT IV
22
23
as to the Sale of Lights Bearing an Array of Bold, Raised, Inclined Bars at
24 the Handle
25
59. Coast restates and realleges each of the allegations of paragraphs 1-58 as
26
if fully set forth herein.
27
28
21
COMPLAINT CASE NO.:
1 60. Coast has been selling its POLYSTEEL line of lights in substantial
2 volumes throughout the United States for many years. Given that, and the fact that the
3 POLYSTEEL line of lights include a trade dress with handle portions having a
4 distinctive array of non-functional and distinctive, bold, raised, inclined bars,
5 customers and prospective customers have come to recognize Coast’s POLYSTEEL
6 line of lights with this trade dress. The line of flashlights bearing this distinctive trade
7 dress has also established a reputation as a high quality line of products that is going
8 to perform under the most adverse of conditions.
9 61. The trade dress of Coast’s POLYSTEEL line of lights that include
10 handles with an array of non-functional and distinctive, bold, raised, inclined bars are
11 designed to have an attractive, rugged appearance. There are many ways to make the
12 handle easy to grip without using an array of bold, raised, inclined bars, so this array
13 is non-functional, protectable trade dress.
14 62. As a result of Defendants’ introduction of at least their 400, 500 and 1000
15 P-STEEL lights that also have a trade dress with handle including an array of non-
16 functional, bold, raised, inclined bars, a likelihood of confusion has arisen and will
17 continue between at least these flashlights and Coast’s original POLYSTEEL line of
18 lights. Not only are the P-STEEL flashlights marketed under confusingly similar
19 trademarks, but the trade dress will, on its own, lead to confusion on the part of the
20 purchasing public.
21 63. The likelihood of confusion between the trade dress of handles that
22 include an array of bold, raised, inclined bars is exacerbated here by Defendants (1)
23 marketing their products using a similar P-STEEL trademark, (2) using 400, 500 and
24 1000 numbers similar to the numbers used by Coast in connection with its
25 POLYSTEEL line of lights, (3) marketing the lights through the same marketing
26 channels and to the same customers as Coast’s POLYSTEEL line of lights, and (4)
27 using the same marketing techniques and depictions demonstrating its use of a rugged
28 stainless steel core. This is likely to confuse, deceive, and cause mistake among
22
COMPLAINT CASE NO.:
1 consumers and therefore infringes Coast’s rights in its handles that bear an array of
2 bold, raised, inclined bars in violation of 15 U.S.C. § 1114.
4 confusion, or to cause mistake, or to deceive as to the affiliation, connection, or
5 association of Ideapond with Coast, or as to the sponsorship or approval of Ideapond’s
6 lights.
7 65. Defendants’ actions by incorporating a trade dress on their handles that
8 bear an array of bold, raised bands in their lights also misrepresent the nature,
9 characteristics, or qualities of their lights.
12 affiliation or association between Ideapond and Coast in their mutual use of light
13 handles that bear an array of bold, raised, inclined bars. This deliberate attempt to
14 deceive customers and prospective customers is not only evidenced by the striking
15 similarity between the trade dress on the handles of the lights but is also demonstrated
16 by the four additional factors noted in paragraph 63 above.
18 of Defendants in the marketing of their lights having handles that bear an array of
19 bold, raised, inclined bars, in that: (i) Defendants’ actions injure and threaten to
20 continue to injure Coast’s rights in its trade dress of light handles that bear an array of
21 bold, raised, inclined bars, which cannot adequately be compensated by monetary
22 damages; (ii) the wrongful acts of Defendant injure and threatens to continue to injure
23 Coast’s reputation and goodwill; (iii) the injury resulting to Coast from Defendants’
24 wrongful conduct, and the conduct itself, are continuing; and (iv) Coast would be
25 required to bring a multiplicity of suits to achieve full compensation for the injuries
26 caused thereby.
27 68. Unless restrained, the foregoing wrongful acts of Defendants as to the use
28 of Coast’s trade dress will continue to cause irreparable injury to Coast, both during
23
COMPLAINT CASE NO.:
1 the pendency of this action and thereafter. Coast is therefore entitled to an order from
2 this Court preliminarily and permanently enjoining Bertken and Ideapond and its
3 agents, employees and others acting in concert with it, from directly or indirectly: (i)
4 manufacturing, producing, distributing, circulating, selling, offering for sale,
5 advertising, promoting or displaying lights that have a trade dress with handles that
6 include an array of bold, raised, inclined bars or any product bearing a trade dress that
7 is confusingly similar to Coast’s handles that bear an array of bold, raised, inclined
8 bars, or (ii) making any false description or representation of origin concerning
9 Defendants’ lights.
13
COUNT V
14
PATENT INFRINGEMENT (35 U.S.C. §§ 271 and 289)
15
16 70. Coast restates and realleges each of the allegations of paragraphs 1-69, as
18 71. Ideapond has infringed Coast’s ’508 Patent within this judicial district by
19 importing into, using, inducing others to use, selling and/or offering for sale
20 flashlights that embody the design claimed in the ’508 Patent, in violation of 35
21 U.S.C. §§ 271 and 289.
22 72. Ideapond is not licensed or otherwise authorized by Coast to use, import,
23 sell, or offer to sell any flashlight whose design is covered by the ’508 Patent, and its
24 conduct is, in every instance, without Coast’s consent.
25 73. The design of Ideapond’s DURACELL 500 flashlight so closely
26 resembles the design claimed in the ’508 Patent that an ordinary observer will
27 perceive the overall appearance of the products to be basically the same. Comparisons
28
24
COMPLAINT CASE NO.:
1 between Figure 2 of the ’508 Patent and the DURACELL 500 show the distinct
2 similarities.
3
Sloping down to handle
4 Expanding bezel
5
6
7
8
9
Shorter
10 flattened
portions
11 Longer
flattened
12 portions Narrowed bezel
Longer
13 flattened
portions
14
15
16
Shorter
17 flattened
portions
18
19 74. As a result of Ideapond’s infringement of the ’508 Patent, Coast is
20 entitled to recover from Ideapond damages adequate to compensate for the
21 infringement, but in no event less than a reasonable royalty as provided for in 35
22 U.S.C. § 284.
23 75. Due to Ideapond’s infringement of the ’508 Patent, Coast has suffered, is
24 suffering, and will continue to suffer irreparable injury and damage for which Coast
25 has no adequate remedy at law. Coast is therefore entitled to a permanent injunction
26 against Ideapond’s further infringing conduct.
27
28
25
COMPLAINT CASE NO.:
1 PRAYER FOR RELIEF

2 WHEREFORE, Coast respectfully requests that the Court enter judgment in its
3 favor against Defendants, granting the following relief:
4 A. A judgment and declaration that Defendants have infringed Coast’s
5 federal trademark registration for the POLYSTEEL trademark, and that Defendants’
6 infringement has been deliberate and willful, in violation of 15 U.S.C. §§ 1114 and
7 1125;
8 B. A judgment and declaration that Defendants have infringed Coast’s
9 product configuration trade dress in both Coast’s POLYSTEEL 400 flashlight and in
10 Coast’s POLYSTEEL 400 Swivel light, and that Defendants’ infringement of the
11 product configuration trade dress has been with knowledge, in bad faith, and with the
12 intent to cause confusion or mistake or to deceive.
13 C. A judgment and declaration that Defendants’ have infringed Coast’s
14 trade dress in the handles of their lights by incorporating an array of bold, raised
15 bands, and that Defendants’ infringement of the trade dress has been with knowledge,
16 in bad faith, and with the intent to cause confusion or mistake or to deceive.
17 D. An award of compensatory damages, including consequential and
18 incidental damages, in favor of Coast and against Defendants in an amount to be
19 proven at trial;
20 E. An award of enhanced damages or lost profits, whichever is proven to be
21 greater, in favor of Coast and against Defendants pursuant to 15 U.S.C. § 1117 and as
22 otherwise provided by law;
23 F. An accounting and award to Coast and against Defendants of all of their
24 profits pursuant to 15 U.S.C. § 1117;
25 G. An award of Coast’s costs of suit and reasonable attorneys’ fees incurred
26 in bringing this action pursuant to 15 U.S.C. § 1117;
27 H. An award of pre- and post-judgment interest at the maximum rate
28 allowed by law;
26
COMPLAINT CASE NO.:
1 I. A grant of preliminary and permanent injunction, pursuant to 15 U.S.C. §

2 1116(a), enjoining Bertken and Ideapond and their agents, servants, officers, directors,
3 employees, affiliated entities and all persons acting in concert or privity with them,
4 from infringing the POLYSTEEL trademark (including by use of the P-STEEL mark),
5 from marketing or selling it P-STEEL 400 flashlight and their P-STEEL 400 swivel
6 light under the P-STEEL mark or under any other mark, and from using a trade dress
7 incorporated into the handle of a light including an array of bold, raised bands, and
8 further requiring Defendants to account for and destroy, or deliver up for destruction,
9 all goods, advertisements, packaging, or other promotional materials bearing an
10 infringing name or mark;
11 J. A judgment and declaration that Ideapond has infringed Coast’s ’508
12 Patent;
13 K. A permanent injunction, pursuant to 35 U.S.C. § 283, enjoining Ideapond
14 and its agents, servants, officers, directors, employees, affiliated entities and all
15 persons acting in concert or privity with it, from infringing the ’508 Patent;
16 L. A judgment and order requiring Ideapond to pay Coast its entire profits
17 under 35 U.S.C. § 289, or all damages caused by its infringement of the ’508 Patent,
18 but in no event less than a reasonable royalty pursuant to 35 U.S.C. § 284;
19 M. An order pursuant to 15 U.S.C. § 1116(a) directing Defendants to file
20 with the court and serve on Coast a report in writing under oath setting forth in detail
21 the manner and form in which Defendants have complied with the injunction; and
22 N. Such other and additional relief as this Court deems just and proper.
23
24
25
26
27
28
27
COMPLAINT CASE NO.:
1 DEMAND FOR JURY TRIAL

2 Pursuant to Fed. R. Civ. P. 38(b), Coast respectfully requests a trial by jury of
3 all issues so triable.
4 Dated this 8th day of January, 2020.
5 Respectfully submitted,
6
SCHWABE, WILLIAMSON & WYATT, P.C.
7
8
By: s/Peter E. Heuser
9 Peter E. Heuser
10
11
MUSICK, PEELER & GARRETT LLP.
12
Michael J. Hickman
13
Attorneys for Plaintiff
14
Coast Cutlery Co. dba Coast Products
15
16
17
18
19
20
21
22
23
24
25
26
27
28
28
COMPLAINT CASE NO.:
PDX\PEH\29798316.2
Case 3:21-cv-00033-AJB-MDD Document 1-1 Filed 01/08/21 PageID.29 Page 1 of 2
JS 44 (Rev. 06/17) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS

IDEAPOND, LLC and DENNIS K. BERTKEN
COAST CUTLERY CO. dba COAST PRODUCTS
(b) County of Residence of First Listed Plaintiff Multnomah County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Peter E. Heuser, Schwabe, Williamson & Wyatt, 1211 SW 5th Ave., Ste 1900,
Ptld, OR 97204 Tel. 503.796.2424 '21CV0033 AJB MDD
Michael Hickman, Musick Peeler & Garrett LLP, 225 Broadway, Ste 1900, San
Diego, CA 92101 Tel. 619.525.2521
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
u 1 U.S. Government u 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State u 1 u 1 Incorporated or Principal Place u 4 u 4
of Business In This State
u 2 U.S. Government u 4 Diversity Citizen of Another State u 2 u 2 Incorporated and Principal Place u 5 u 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
Citizen or Subject of a u 3 u 3 Foreign Nation u 6 u 6

Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
u 110 Insurance PERSONAL INJURY PERSONAL INJURY u 625 Drug Related Seizure u 422 Appeal 28 USC 158 u 375 False Claims Act
u 120 Marine u 310 Airplane u 365 Personal Injury - of Property 21 USC 881 u 423 Withdrawal u 376 Qui Tam (31 USC
u 130 Miller Act u 315 Airplane Product Product Liability u 690 Other 28 USC 157 3729(a))
u 140 Negotiable Instrument Liability u 367 Health Care/ u 400 State Reapportionment
u 150 Recovery of Overpayment u 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS u 410 Antitrust
& Enforcement of Judgment Slander Personal Injury u 820 Copyrights u 430 Banks and Banking
u 151 Medicare Act u 330 Federal Employers’ Product Liability u 830 Patent u 450 Commerce
u 152 Recovery of Defaulted Liability u 368 Asbestos Personal u 835 Patent - Abbreviated u 460 Deportation
Student Loans u 340 Marine Injury Product New Drug Application u 470 Racketeer Influenced and
(Excludes Veterans) u 345 Marine Product Liability u 840 Trademark Corrupt Organizations
u 153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY u 480 Consumer Credit
of Veteran’s Benefits u 350 Motor Vehicle u 370 Other Fraud u 710 Fair Labor Standards u 861 HIA (1395ff) u 490 Cable/Sat TV
u 160 Stockholders’ Suits u 355 Motor Vehicle u 371 Truth in Lending Act u 862 Black Lung (923) u 850 Securities/Commodities/
u 190 Other Contract Product Liability u 380 Other Personal u 720 Labor/Management u 863 DIWC/DIWW (405(g)) Exchange
u 195 Contract Product Liability u 360 Other Personal Property Damage Relations u 864 SSID Title XVI u 890 Other Statutory Actions
u 196 Franchise Injury u 385 Property Damage u 740 Railway Labor Act u 865 RSI (405(g)) u 891 Agricultural Acts
u 362 Personal Injury - Product Liability u 751 Family and Medical u 893 Environmental Matters
Medical Malpractice Leave Act u 895 Freedom of Information
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS u 790 Other Labor Litigation FEDERAL TAX SUITS Act
u 210 Land Condemnation u 440 Other Civil Rights Habeas Corpus: u 791 Employee Retirement u 870 Taxes (U.S. Plaintiff u 896 Arbitration
u 220 Foreclosure u 441 Voting u 463 Alien Detainee Income Security Act or Defendant) u 899 Administrative Procedure
u 230 Rent Lease & Ejectment u 442 Employment u 510 Motions to Vacate u 871 IRS—Third Party Act/Review or Appeal of
u 240 Torts to Land u 443 Housing/ Sentence 26 USC 7609 Agency Decision
u 245 Tort Product Liability Accommodations u 530 General u 950 Constitutionality of
u 290 All Other Real Property u 445 Amer. w/Disabilities - u 535 Death Penalty IMMIGRATION State Statutes
Employment Other: u 462 Naturalization Application
u 446 Amer. w/Disabilities - u 540 Mandamus & Other u 465 Other Immigration
Other u 550 Civil Rights Actions
u 448 Education u 555 Prison Condition
u 560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
u 1 Original u 2 Removed from u 3 Remanded from u 4 Reinstated or u 5 Transferred from u 6 Multidistrict u 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
Lanham Act, 15 U.S.C. Secs. 1051 et seq. and 35 U.S.C. Secs. 271 and 289
VI. CAUSE OF ACTION Brief description of cause:
Unlawful trade practices, trademark infringement, and design patent infringement
VII. REQUESTED IN u CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: u Yes u No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
01/08/2021 s/Michael J. Hickman
FOR OFFICE USE ONLY
RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

JS 44 Reverse (Rev. 06/17)
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
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time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
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in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
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section for each principal party.
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that is most applicable. Click here for: Nature of Suit Code Descriptions.
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changes in statue.
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statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
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numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.

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Case 3:21-cv-00033-AJB-MDD Document 1 Filed 01/08/21 PageID.

1 Michael J. Hickman, SBN#149624

11 Attorneys for Plaintiff,

1 cylindrical handle portion bears an array of non-functional and distinctive, bold,

11 properly maintained by Coast.

12 Defendants and Their Products

13 13. Defendant Ideapond is, on information and belief, a Nevada limited

14 liability company, registered to do business in California, with a principal office at

22 those patents, showing how involved he is in the design of Ideapond lights. On

24 Internet-based retailers such as Amazon.

25 14. On information and belief, Defendants market a wide variety of

1 marketing of its POLYSTEEL flashlights. So, for example, Defendants sell a P-

1 NATURE OF THE ACTION

1 34. The afore-described practices of Defendants in marketing their lights is

1 manufacturing, producing, distributing, circulating, selling, offering for sale,

14 if fully set forth herein.

20 product that is going to perform under the most adverse of conditions.

21 51. As a result of Defendants’ introduction of the P-STEEL 400 Swivel

1 PRAYER FOR RELIEF

1 I. A grant of preliminary and permanent injunction, pursuant to 15 U.S.C. §

1 DEMAND FOR JURY TRIAL

I. (a) PLAINTIFFS DEFENDANTS

Citizen or Subject of a u 3 u 3 Foreign Nation u 6 u 6

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

V. Origin. Place an "X" in one of the seven boxes.

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