Case 4:21-cv-00063-DN Document 2 Filed 06/03/21 PageID.

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GURR BRANDE & SPENDLOVE, PLLC

ROBERT A. GURR (Utah Bar No. 13722)
[email protected]
JARED G. BRANDE (Utah Bar No. 11514)
[email protected]
ROBERT D. SPENDLOVE (Utah Bar No. 15924)
[email protected]
491 E. Riverside Dr., #4B
St. George, UT 84790
Phone: (435) 634-8889
Fax: (866)-232-8818

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH

H&S Motorsports, LLC,

Case No. _____________________
Plaintiff,

v. COMPLAINT

Smeding Diesel, LLC,

Defendant. JURY TRIAL DEMANDED

Plaintiff, H&S Motorsports, LLC, by and through its counsel, Gurr Brande & Spendlove,

PLLC, hereby brings this Complaint against the Defendant, Smeding Diesel, LLC, and alleges as

follows:

THE PARTIES

1. Plaintiff, H&S Motorsports, LLC, is Utah Limited Liability Company with its

principal place of business at 1222 S Hillcrest Dr., Washington, Utah 84780.

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2. Upon information and belief, Defendant Smeding Diesel, LLC, is a Texas Limited

Liability Company with its principal place of business at 28875 I-H 10 W, Boerne, Texas 78006.

JURISDICTION AND VENUE

3. H&S Motorsports, LLC (“Plaintiff”) seeks disgorgement of profits, punitive

damages, and injunctive relief under federal and state law and files this action against Smeding

Diesel, LLC (“Defendant”) for Defendant’s willful acts of copyright infringement, trademark

infringement, unfair competition, and design patent infringement.

4. This Court has original subject matter jurisdiction over the claims that relate to

copyright infringement under 17 U.S.C. § 501, trademark infringement and false designation of

origin under 15 U.S.C. §§ 1116 and/or 1121(a), and for Design Patent infringement pursuant to

28 U.S.C. §§ 1331 and 1338(a). The Court has supplemental jurisdiction over the claims in this

Complaint that arise under state statutory and common law pursuant to 28 U.S.C. §§ 1338(b) and

1367(a) because those claims are so related to Plaintiff’s federal claims within the Court’s

original jurisdiction that they form part of the same case or controversy and derive from a

common nucleus of operative facts.

5. This Court has personal jurisdiction over Defendant because Defendant has a

continuous, systematic, and substantial presence within this Judicial District and within Utah. In

addition, by committing acts of copyright infringement, trademark infringement, false

designation of origin, unfair competition, and design patent infringement in this Judicial District,

including, but not limited to, by using copyrighted photos in connection with the advertisement,

marketing, promotion, sale, and offer for sale of goods to customers in this Judicial District,

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Defendant’s acts form a substantial part of the events or omissions giving rise to Plaintiff’s

claims.

6. Venue is proper in this court pursuant to 28 U.S.C. § 1391(b) and (c).

GENERAL ALLEGATIONS

7. Plaintiff is the owner of numerous copyrighted photos that are used to advertise

their goods and services.

8. Plaintiff is the owner of a U.S. Copyright Registration for a photograph depicting

a 2014 Steel Piping Kit (Registration No. VAu 1-421-525), hereafter referred to as the “Steel

Piping Photo”. The Steel Piping Photo was registered on March 1, 2021. See Exhibit A.

9. Plaintiff is also the owner of a U.S. Copyright Registration for a photograph

depicting a 2017 Silicone Boot Kit (Registration No. VAu 1-421-524), hereafter referred to as

the “Silicone Boot Photo”. The Silicone Boot Photo was registered on March 1, 2021. See

Exhibit B.

10. Plaintiff has created and owns rights, as described above, to the Silicone Boot

Photo shown below:

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11. Plaintiff is the owner of U.S. Trademark Registration No. 6338699 for HSM and

associated design (“’699 Mark”) and owns common law rights in the marks “H&S Motorsports”

as well as “HSM” in connection with aftermarket automotive parts and online stores selling

automotive parts (collectively referred to as the “HSM Marks”).

12. Plaintiff operates a business selling automotive parts, namely, fuel kits comprised

of fuel lines, fuel pumps, fuel pulleys, and attaching hardware, turbo kits comprised of

turbochargers, intercooler pipes, and couplers, among other things. Plaintiff further provides

online retail store services featuring aftermarket automotive parts and accessories in the nature of

fuel kits and turbo kits, among other things.

13. Defendant is also in the business of selling aftermarket automotive parts.

14. Plaintiff is also the owner of a design patent in the United States, entitled

“Throttle Body Coupler” and having Design Patent No. D828,399 (hereafter the “’399 Patent”),

granted on September 11, 2018.

15. Plaintiff has invested substantial time and resources into developing its

intellectual property portfolio and its brand, amassing consumer goodwill over the years.

16. Defendant sells its line of aftermarket automotive parts through its website

(https://www.smedingdiesel.com/) and other websites, including, but not limited to, Ebay.com.

17. In about November of 2018, Plaintiff became aware that Defendant was using an

unauthorized, unaltered version of Plaintiff’s Steel Piping Photo on Defendant’s website, selling

goods other than Plaintiff’s goods, as shown by the screenshots below:

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18. Defendant admitted, on social media platforms, to using the unauthorized photo to

sell its goods.

19. In about January 2021, Plaintiff became aware that Defendant was using an

unauthorized, altered version of the Silicone Boot Photo to market its goods. The Silicone Boot

Photo contains an intercooler pipe and coupler (hereafter the “Coupler”) designed by Plaintiff. In

a deliberate effort to hide its infringement, Defendant altered the Silicone Boot Photo to remove

Plaintiff’s HSM Mark, as seen on the following listing on eBay:

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(https://www.ebay.com/itm/Replacement-Silicone-Intercooler-Pipe-for-11-16-Ford-6-7L-

Powerstroke-OEM/133526746794)

20. Plaintiff sent Defendant a cease and desist and demand letter in about February of

2021.

21. Plaintiff is not affiliated with Defendant in any way.

22. Defendant has not been granted permission to use the Steel Piping Photo, the

Silicone Boot Photo, Plaintiff’s trademarks, or the ’399 patent.

23. Defendant further has willfully and intentionally edited the Silicone Boot Photo to

remove the HSM Marks.

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24. Additionally, Plaintiff placed an order from Defendant via the eBay listing, which

is shown in the above-described photo, to determine whether the products sold by Defendant

were indeed the Plaintiff’s Coupler. When the package arrived, the throttle body coupler was not

Plaintiff’s coupler as shown in the Photo listing. A photo of the throttle body coupler Plaintiff

received from Defendant is below:

25. Defendant is fraudulently inducing consumers to purchase a product that

consumers believe is the Plaintiff’s Coupler, but consumers are then receiving a different,

inferior product that is not the Plaintiff’s product.

First Cause of Action

(Federal Copyright Infringement (17 U.S.C. § 501))

26. Plaintiff re-alleges and incorporates by reference the allegations contained in

paragraphs 1 through 26 above, as though fully set forth herein.

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27. Plaintiff exclusively owns rights to the copyrighted Steel Piping Photo and the

Silicone Boot Photo.

28. Defendant’s unauthorized use of the Steel Piping Photo constitutes copyright

infringement in violation of 17 U.S.C. § 501.

29. Defendant’s unauthorized use of the Silicone Boot Photo constitutes copyright

infringement in violation of 17 U.S.C. § 501.

30. Without Plaintiff’s authorization, Defendant has removed the Plaintiff’s ’699

Mark from the Silicone Boot Photo and has used it to advertise and sell their own goods.

31. Defendant’s acts of removing the HSM Marks demonstrate that its copyright

infringement was knowing, willful, and intentional and were done with the intent to profit off of

the Silicone Boot Photo. Plaintiff is entitled to receive increased damages as a result of the

willful and intentional copying of the Silicone Boot Photo.

32. Defendant’s infringement of the Steel Piping Photo and the Silicone Boot Photo

has yielded profits in an amount not yet determined.

33. Plaintiff has suffered and continues to suffer due to Defendant’s infringement in

an amount to be determined at trial.

Second Cause of Action

(Federal Trademark Infringement (15 U.S.C. § 1114)

34. Plaintiff re-alleges and incorporates by reference the allegations contained in

paragraphs 1 through 33 above, as though fully set forth herein.

35. Plaintiff exclusively owns the HSM marks.

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36. Plaintiff has used the ’699 Mark in interstate commerce with the advertising and

promotion of its goods and services.

37. Without Plaintiff’s permission, Defendant has used the Steel Piping Photo in

commerce, bearing the ’699 Mark, to induce consumers to purchase goods sold by Defendant

and not Plaintiff.

38. Defendant’s unauthorized use of the Steel Piping Photo and providing a different,

inferior throttle body coupler has caused, and will likely continue to cause, confusion, mistake,

tarnishment, and deception in the relevant consumer market.

39. Defendant had actual knowledge of the Defendant’s ownership of the ’699 mark

and has willfully violated 15 U.S.C. § 1114.

40. Defendant’s infringing acts have caused and will continue to cause Plaintiff to

suffer irreparable injury to its reputation and goodwill. Plaintiff does not have an adequate

remedy at law to recover for this harm, and it is therefore entitled to injunctive relief.

Third Cause of Action

(Trademark Infringement - 15 U.S.C. § 1125)

41. Plaintiff re-alleges and incorporates by reference the allegations contained in

paragraphs 1 through 40 above, as though fully set forth herein.

42. Defendant’s use of an inferior imitation of the Coupler associated with the HSM

Marks has caused and continues to cause dilution by tarnishment of the distinctive quality of the

HSM Marks. Defendant’s use of an imitation of the Coupler is a violation of 15 U.S.C. § 1125.

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43. Defendant has acted in bad faith and/or willfully in removing the ’699 Mark or

other HSM Marks and offering a throttle body coupler that varies, and is inferior to, the Coupler

shown in the Silicone Boot Photo; thereby the Defendant has tarnished, and continues to tarnish,

the Plaintiff’s brand.

44. Plaintiff is entitled to injunctive relief under 15 U.S.C. § 1116 and recovery of

damages from Defendant, pursuant to 15 U.S.C. § 1117(a). Damages recoverable are actual

damages sustained by the Plaintiff, Defendant’s profits, and the costs of the action together with

Plaintiff’s reasonable attorney fees. In the alternative, Plaintiff is entitled to recover damages in

such sum as the Court may find just according to the circumstances of the case.

Fourth Cause of Action

(Unfair Competition – Utah Code Ann. § 13-5a-102)

45. Plaintiff re-alleges and incorporates by reference the allegations contained in

paragraphs 1 through 44 above, as though fully set forth herein.

46. Defendant has used the Steel Piping Photo and the Silicone Boot Photo without

authorization from the Plaintiff.

47. Defendant’s acts of using these photos have fraudulently induced consumers to

purchase products they believed to be from the Plaintiff.

48. By virtue of the acts complained of herein, Defendant has intentionally caused a

likelihood of confusion among consumers and the public.

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49. Defendant’s acts complained of herein constitute trademark infringement, unfair

competition, and unlawful, unfair, malicious, or fraudulent business practices, which have

injured Plaintiff.

50. Defendant’s unfair and unlawful business practices have caused substantial injury

to Plaintiff and are continuing to cause substantial injury. Plaintiff has no adequate remedy at law

for these injuries. Unless the Defendant is restrained by this Court from continuing its unfair and

unlawful business practices these injuries will continue to accrue. Plaintiff is entitled to

preliminary and permanent injunctive relief against the Defendant’s unfair and unlawful business

practices constituting statutory unfair competition.

Fifth Cause of Action

(Direct Infringement of the ’399 Patent by Defendant)

51. Plaintiff re-alleges and incorporates by reference the allegations contained in

paragraphs 1 through 50 above, as though fully set forth herein.

52. Plaintiff is the owner of the ’399 Patent, which is valid and enforceable.

53. Defendant has infringed, induced others to infringe, and/or contributed to the

infringement of the ’399 Patent, and continues to do so by manufacturing, using, offering to sell,

and selling within the United States, without permission from Plaintiff to do so, products covered

by the ’399 Patent, in violation of 35 U.S.C. § 289.

54. A side-by-side comparison of figures from the ‘399 Patent (left) and photos of the

Defendant’s throttle body coupler (right) are reproduced below:

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55. An ordinary observer, given such attention as a purchaser usually gives, would be

deceived by the substantial similarity between the design of the Defendant’s throttle body

coupler and the patented design in the ’399 Patent.

56. Despite being notified of the ’399 Patent, Defendant has refused to cease its

infringing activities.

57. Defendant’s deliberate and willful actions in infringing the design of Plaintiff’s

’399 Patent, have caused, and will continue to cause, irreparable harm to Plaintiff unless

permanently enjoined pursuant to 35 U.S.C. § 283.

58. Defendant has also profited from, and continues to profit from, its infringing

throttle body coupler.

59. Plaintiff has suffered pecuniary damages in amounts to be determined at trial as a

result of Defendant’s willful infringement of the ’399 patent, pursuant to 35 U.S.C. §§ 284 and

289.

60. Defendant’s wrongful, malicious, fraudulent, deliberate, willful, and/or intentional

conduct makes this an exceptional case entitling Plaintiff to an award of attorney’s fees and

costs.

Request for Relief

Based on the foregoing, Plaintiff respectfully requests judgment in its favor against

Defendant as follows:

A. Enter judgment in favor of Plaintiff and against Defendant on all claims;

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B. That the Court render a final judgment that the Defendant has violated 17 U.S.C.

§ 501 by unlawfully obtaining, editing, and using copyrighted photos;

C. That the Court render a final judgment that the Defendant has violated the

provisions of 15 U.S.C. § 1114 by willfully infringing Plaintiff’s trademark rights in the ’699

Mark;

D. That the Court render a final judgment that the Defendant has violated the

provisions of 15 U.S.C. § 1125 by willfully infringing Plaintiff’s HSM Marks;

E. That the Court render a final judgment that the Defendant has violated Utah Code

Ann. § 13-5a-102 by false advertising and fraudulently inducing consumers to buy Defendant’s

products;

F. That the Court, under 17 U.S.C. § 502(a), permanently enjoin the Defendant from

infringing Plaintiff’s copyrighted photos;

G. That Defendant be directed to file with this Court and serve on Plaintiff within

thirty (30) days after the service of the injunction, a report, in writing, under oath, setting forth in

detail the manner and form in which it has complied with the injunction pursuant to 15 U.S.C. §

1116;

H. Enter judgment and preliminarily and permanently enjoin and restrain Defendant,

its officers, directors, principals, agents, servants, employees, successors and assigns, and all

others aiding, abetting, or acting in concert or active participation therewith, from making, using,

importing, selling or offering for sale, or otherwise distributing any product that infringes the

’399 Patent;

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I. That Defendant be required to account to Plaintiff for any and all profits derived

by the Defendant by virtue of the Defendant’s acts complained of herein;

J. That the Court award damages under 17 U.S.C. § 504(a)(1);

K. That this case be deemed exceptional and the amount of profits be increased by as

many times as the Court deems appropriate, pursuant to 15 U.S.C. § 1117;

L. That the Court award Plaintiff its reasonable costs, expenses, and attorneys’ fees

pursuant to at least 15 U.S.C. § 1117 and 17 U.S.C. § 505;

M. That Defendant’s actions be deemed willful;

N. That Plaintiff be awarded restitution and disgorgement; and

O. That Plaintiff be awarded any such other relief that the circumstances may require

and that the Court deems just and proper.

DATED this 3rd day of June 2021

Respectfully submitted,

GURR BRANDE & SPENDLOVE, PLLC

/s/ Robert A. Gurr______________________

ROBERT A. GURR (Utah Bar No. 13722)
[email protected]
JARED G. BRANDE (Utah Bar No. 11514)
[email protected]
ROBERT D. SPENDLOVE (Utah Bar No. 15924)
[email protected]
491 E. Riverside Dr., #4B
St. George, UT 84790
Phone: (435) 634-8868

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Registration #: VAu001421525
Service Request #: 1-10219788411

Gurr Brande & Spendlove, PLLC

Robert A. Gurr
491 E Riverside Dr, 4B
St. George, UT 84790 United States
 Case 4:21-cv-00063-DN Document 2-1 Filed 06/03/21 PageID.18 Page 2 of 3

Registration Number
VAu 1-421-525
Effective Date of Registration:
March 01, 2021
Registration Decision Date:
March 03, 2021

Title
Title of Work: 2014 Steel Piping Kit

Completion/Publication
Year of Completion: 2014

Author

Author: H&S Motorsports, LLC

Author Created: photograph
Work made for hire: Yes
Citizen of: United States
Domiciled in: United States

Copyright Claimant

Copyright Claimant: H&S Motorsports, LLC

1222 S Hillcrest Dr., Washington, UT, 84780, United States
0

1
Rights and Permissions

Organization Name: Gurr Brande & Spendlove, PLLC

Name: Robert A. Gurr
Email: [email protected]
Telephone: (435)634-8854
Address: 491 E Riverside Dr, 4B
St. George, UT 84790 United States

Certification

Name: Robert A. Gurr, Esq.

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Date: March 01, 2021

Applicant's Tracking Number: 386.2014
Date: March 01, 2021
Approved

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JS 44 (Rev. 10/20) Case 4:21-cv-00063-DN Document 2-3 Filed
CIVIL COVER 06/03/21 PageID.23 Page 1 of 1
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
H&S Motorsports, LLC Smeding Diesel, LLC

(b) County of Residence of First Listed Plaintiff Washington Co., Utah County of Residence of First Listed Defendant Kendall Co., Texas
(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)
Gurr Brande & Spendlove, PLLC
491 E Riverside Dr, 4B, St. George, UT (435) 767-7808

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)
1 U.S. Government X3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4
of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a 3 3 Foreign Nation 6 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
110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act
120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC
130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a))
140 Negotiable Instrument Liability 367 Health Care/ 400 State Reapportionment
150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust
& Enforcement of Judgment Slander Personal Injury X
✖ 820 Copyrights 430 Banks and Banking
151 Medicare Act 330 Federal Employers’ Product Liability 830 Patent 450 Commerce
152 Recovery of Defaulted Liability 368 Asbestos Personal 835 Patent - Abbreviated 460 Deportation
Student Loans 340 Marine Injury Product New Drug Application 470 Racketeer Influenced and
(Excludes Veterans) 345 Marine Product Liability 840 Trademark Corrupt Organizations
153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR 880 Defend Trade Secrets 480 Consumer Credit
of Veteran’s Benefits 350 Motor Vehicle 370 Other Fraud 710 Fair Labor Standards Act of 2016 (15 USC 1681 or 1692)
160 Stockholders’ Suits 355 Motor Vehicle 371 Truth in Lending Act 485 Telephone Consumer
190 Other Contract Product Liability 380 Other Personal 720 Labor/Management SOCIAL SECURITY Protection Act
195 Contract Product Liability 360 Other Personal Property Damage Relations 861 HIA (1395ff) 490 Cable/Sat TV
196 Franchise Injury 385 Property Damage 740 Railway Labor Act 862 Black Lung (923) 850 Securities/Commodities/
362 Personal Injury - Product Liability 751 Family and Medical 863 DIWC/DIWW (405(g)) Exchange
Medical Malpractice Leave Act 864 SSID Title XVI 890 Other Statutory Actions
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 790 Other Labor Litigation 865 RSI (405(g)) 891 Agricultural Acts
210 Land Condemnation 440 Other Civil Rights Habeas Corpus: 791 Employee Retirement 893 Environmental Matters
220 Foreclosure 441 Voting 463 Alien Detainee Income Security Act FEDERAL TAX SUITS 895 Freedom of Information
230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 870 Taxes (U.S. Plaintiff Act
240 Torts to Land 443 Housing/ Sentence or Defendant) 896 Arbitration
245 Tort Product Liability Accommodations 530 General 871 IRS—Third Party 899 Administrative Procedure
290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION 26 USC 7609 Act/Review or Appeal of
Employment Other: 462 Naturalization Application Agency Decision
446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration 950 Constitutionality of
Other 550 Civil Rights Actions State Statutes
448 Education 555 Prison Condition
560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
X✖ 1 Original 2 Removed from 3 Remanded from 4 Reinstated or 5 Transferred from6 Multidistrict 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):
17 U.S.C. § 501 (further causes of action under 15 U.S.C. §§ 1114 & 1125, 35 U.S.C. § 289, and Utah Code Ann. § 13-5a-102)
VI. CAUSE OF ACTION Brief description of cause:
Defendant has used Plaintiff’s photographs in violation of Plaintiff’s copyright. In addition, Defendant has infringed Plaintiff’s trademark and patent.

VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. preliminary injunction JURY DEMAND: X✖ Yes No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
06/03/2021
FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE