Netzsch Premier Technologies Complaint

8/18/2019 Netzsch Premier Technologies Complaint

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UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

____________________________________) NETZSCH PREMIER )TECHNOLOGIES, LLC )

)Plaintiff, ) Civil Action No. 1:16-cv-781

)v. ) COMPLAINT FOR TRADEMARK

) COUNTERFEITING; TRADEMARK) INFRINGEMENT; FALSE) DESIGNATION OF ORIGIN, FALSE

PÜHLER FEINMAHLTECHNIK GMBH ) DESCRIPTION AND UNFAIRA/K/A PÜHLER (GUANGDONG) ) COMPETITIONSMART NANO TECHNOLOGY CO. )LTD. A/K/A PÜHLER (GUANGZHOU) )MACHINERY AND EQUIPMENT CO., ) JURY TRIAL DEMANDED LTD., DENNIS LEI, AND WILLEM LI )

)Defendants. )

)

NETZSCH Premier Technologies, LLC (“NETZSCH” or “Plaintiff”) for its Complaint

against Defendants Pühler Feinmahltechnik GmbH a/k/a Pühler (Guangdong) Smart Nano

Technology Co., Ltd. a/k/a Pühler (Guangzhou) Machinery and Equipment Co., Ltd. (“PÜHLER”),

Mr. Dennis Lei (a/k/a Lei Limeng), and Mr. Willem Li (a/k/a Li Jun, a/k/a Wiliam Li) (hereinafter

“Defendants”) alleges as follows:

Statement of the Case

This is an action by NETZSCH against Defendants for injunctive relief, profits,1.

trebled and/or statutory damages, pre-judgment interest, attorneys’ fees and costs under the Lanham

Act based on Defendants’ counterfeit and infringing use of Plaintiff’s trademarks in connection with

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the advertising, promotion, and sale of mixers, dispersers, mills, and related products that are not

Plaintiff’s genuine products.

NETZSCH brings this action to protect its reputation for selling products of the2.

highest quality, prevent deception of the consuming public by Defendants, retain control over the

substantial goodwill associated with its numerous registered trademarks being unlawfully exploited

by Defendants, and to avoid irretrievably lost sales.

Parties

NETZSCH is a Delaware corporation having an address at 125 Pickering Way,3.

Exton, PA 19341.

NETZSCH is the North American subsidiary of the globally operated group of4.

NETZSCH companies.

PÜHLER is a Chinese corporation with a place of business at 1 Chuangyuan Road,5.

Zhongcun Street, Panyu District, Guangzhou, Guangdong, 511495 P.R. China.

PÜHLER purports to be a German company headquartered at Saseler Chaussee 1096.

22393 Hamburg, Germany.

PÜHLER purports to be a manufacturer and distributor of mixers, dispersers, mills,7.

and related products.

Upon information and belief, Mr. Dennis Lei is the General Manager of PÜHLER.8.

Upon information and belief, Mr. Lei resides at No. 016, Team 1, Zhujiaqi Village,9.

Nianyuxu Town, Huarong County, Hunan Province, China, 000.

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Mr. Lei was employed from 2006-2008 as a sales engineer by NETZSCH10.

(Shanghai) Machinery and Instruments Co., Ltd., a subsidiary of the globally operated group of

NETZSCH companies.

Upon information and belief, Mr. Willem Li is the Sales Director/Manager of11.

PÜHLER.

Upon information and belief, Mr. Li resides at Room 302, No.4, Zijin 4 village,12.

Anting, Jiading District, China.

Mr. Li’s business address is Room 605, Telecom Industry Plaza, No. 2513.

Chengzhong Rd., Jiading District, Shanghai 201 800, China.Upon information and belief, Mr. Li was employed from 2005-2009 as a sales14.

manager by NETZSCH (Shanghai) Machinery and Instruments Co., Ltd., a subsidiary of the

globally operated group of NETZSCH companies.

Mr. Lei’s past employment with NETZSCH put him on actual notice of15.

NETZSCH’s intellectual property rights, including the infringing trademarks at issue in this action.

Mr. Li’s past employment with NETZSCH put him on actual notice of NETZSCH’s16.

intellectual property rights, including the infringing trademarks at issue in this action.

Upon information and belief, Messrs. Lei and/or Li selected the infringing17.

trademarks used by PÜHLER that are at issue in this action.

Upon information and belief, Messrs. Lei and/or Li selected the NETZSCH18.

tradename “FEINMAHLTECHNIK” as part of PÜHLER’s name to trade off of NETZSCH’s

goodwill.

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Upon information and belief, at trade shows Mr. Lei directly solicited NETZSCH’s19.

employees to work at PÜHLER.

Upon information and belief, Defendants distributed marketing materials bearing the20.

infringing trademarks and information authored by NETZSCH to NETZSCH’s customers in the

United States, without NETZSCH’s authorization.

Defendants are doing business through a number of trade shows, including the21.

American Coatings Show held in this District, and through Defendants’ websites, including

www.puhler.com, www.nanogrindingmill.com, and puhler.gmc.globalmarket.com, through which

Defendants market and sell their products.

Jurisdiction and Venue

This claim arises under 15 U.S.C. § 1051, et seq. (the Lanham Act), particularly 1522.

U.S.C. § 1114(1). This Court has subject matter jurisdiction over the claims pursuant to the

provisions of 28 U.S.C. §§ 1331 (federal question jurisdiction) and 1338 (any Act of Congress

relating to trademarks) and 15 U.S.C. § 1121 (action arising under the Lanham Act). This Court has

jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367 (supplemental jurisdiction).

Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391(b) and 1391(c) because23.

Defendants are subject to the Court’s personal jurisdiction and because a substantial part of the

events giving rise to this action took place in the District. Furthermore, NETZSCH has suffered

harm in this District and the Lanham Act provides that venue lies in the place of harm.

Defendants have been doing business in this District, and have and/or are24.

advertising, distributing, offering for sale, and selling products wrongfully bearing counterfeits of

NETZSCH trademarks to persons located within this District.

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This Court has personal jurisdiction over Defendants because,inter alia , Defendants25.

(1) have systematic and continuous contacts with this District, (2) transact and do business in this

District, (3) have websites that are accessible in this District, and (4) have reserved an exhibitor

booth for the 2016 American Coatings Show to be held in this District on April 12-14 2016.

P & Design Trademark

NETZSCH is a leading manufacturer and distributor of mixers, dispersers, mills, and26.

related products (hereinafter referred to as “NETZSCH Products”).

NETZSCH is responsible for promoting, marketing and selling in interstate27.

commerce throughout the United States high quality NETZSCH Products.

NETZSCH is responsible for maintaining control over the quality of the NETZSCH28.

Products and services in this country.

NETZSCH has developed an outstanding reputation because of the uniform high29.

quality of NETZSCH Products.

NETZSCH is the owner of U.S. Reg. No. 3,426,673 for its P & Design trademark30.

for use in connection with industrial mixers, blenders, dispersers and mills; media milling and

dispersion equipment. The trademark record is attached as Exhibit A. An affidavit under Section 15

of the Lanham Act claiming incontestability for this registration was filed on September 24, 2013.

The Section 15 affidavit was acknowledged by the U.S. Patent and Trademark Office (USPTO) on

September 28, 2013. Accordingly, this registration is considered incontestable.

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for use in connection with industrial mixers, blenders, dispersers and mills; media milling and

dispersion equipment. The trademark record is attached as Exhibit B. An affidavit under Section 15

of the Lanham Act claiming incontestability for this registration was filed on September 24, 2013.

The Section 15 affidavit was acknowledged by the USPTO on September 28, 2013. Accordingly,

this registration is considered incontestable.


for use in connection with: industrial mixers; dispersing machines and mills; machines for mixing;

mixing, homogenizing and processing machines and apparatus for the food industry, chemical

industry, cosmetic industry and pharmaceutical industry, and parts for the aforesaid goods. The

trademark record is attached as Exhibit C.

The P & Design trademark is distinctive and is used to identify high quality products33.

originating with NETZSCH.

The P & Design trademark is arbitrary and fanciful and is entitled to the highest34.

level of protection afforded by law. NETZSCH uses the P & Design trademark in connection with the marketing and35.

sales of the NETZSCH Products, including on its website (www.netzsch-grinding.com), brochures,

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trade shows, and by other means.See, e.g. Exhibit L. NETZSCH has invested substantial effort

and resources in developing and promoting the NETZSCH Products under the P & Design

trademark.

NETZSCH’s P & Design trademark is widely recognized by customers as36.

identifying and distinguishing its products and there is considerable and valuable goodwill

associated with the P & Design trademark.

Having continuously used the P & Design trademark to promote its products,37.

NETZSCH owns all rights in the trademark, as well as marks substantially similar thereto, and its

registrations are constructive notice of NETZSCH’s rights as a matter of law.

ZETA Trademark

NETZSCH is the owner of U.S. Reg. No. 2,620,559 for its ZETA trademark38.

for use in connection with mechanical and industrial agitators and their parts for processing and

production of low to highly viscous materials and mixtures, namely colors, pigments, food,

minerals, and pharmaceutical substances. The trademark record is attached as Exhibit D. An

affidavit under Section 15 of the Lanham Act claiming incontestability for this registration was filed

on September 3, 2008. The Section 15 affidavit was acknowledged by the USPTO on September

29, 2008. Accordingly, this registration is considered incontestable.

NETZSCH is the owner of U.S. Reg. No. 3,767,507 for its ZETA trademark39.

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Defendants prominently display the P & Design trademark on PÜHLER’s45.

websites. Examples of such displays are attached in Exhibit F.

Defendants have incorporated the P & Design trademark into PÜHLER’s company46.

logo

See Exhibit F.

Defendants market products under the P & Design trademark that compete directly47.in the marketplace with products that NETZSCH markets under the P & Design trademark,

including the NETZSCH Products.

Defendants’ target markets include North America and Defendants have exported48.

their products to North America.See Exhibit F at 3.

Upon information and belief, Defendants market their products under the P &49.

Design trademark directly to NETZSCH’s U.S. customers.

Defendants’ marketing materials that bear the P & Design trademark and are50.

distributed to NETZSCH’s U.S. customers include information copied from NETZSCH’s

documents without NETZSCH’s authorization.See Exhibit J (Pühler Presentation); Exhibit I

(NETZSCH Presentation).

Defendants have no right to use the P & Design trademark.51. On information and belief, Defendants did not begin to use the P & Design52.

trademark in the U.S. until long after NETZSCH.

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On information and belief, Defendants knew of NETZSCH’s prior rights in the P &53.

Design trademark and disregarded those rights when they chose to adopt the P & Design trademark

in connection with competing products.

Defendants are also using the ZETA trademark, without authorization from54.

NETZSCH, in connection with their competing business.

Defendants have a mill named SuperMaxZeta, which they advertise at trade shows55.

and on their websites (e.g., http://www.puhler.com/En/pro_index.asp?cid=2). A screenshot of the

website is attached as Exhibit G.

Defendants market products under the ZETA trademark that compete in the56.marketplace with products that NETZSCH markets under the ZETA trademark, including the

NETZSCH Products.

Defendants have no right to use the ZETA trademark.57.

On information and belief, Defendants did not begin to use the ZETA in the U.S.58.

until long after NETZSCH.

On information and belief, Defendants knew of NETZSCH’s prior rights in the59.

ZETA trademark and disregarded those rights when they chose to adopt the ZETA trademark in

connection with competing products.

Upon information and belief, Messrs. Lei and/or Li selected the infringing60.

trademarks used by Defendants with the intent to trade off of NETZSCH’s goodwill.

Defendants’ customers for products offered under their infringing trademarks are61.

likely to consist of many of the same customers who are already familiar with the products offered

by NETZSCH under those same trademarks.

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Defendants offer and distribute products under their infringing trademarks through62.

channels of trade that overlap with those used to offer and distribute the products offered by

NETZSCH under those same trademarks, including the same trade shows and conventions.

The American Coatings show is a leading North American industry show and63.

conference that occurs every two years. In 2014, more than 8,700 industry attendees from 69

countries visited the American Coatings Show.

The 2016 American Coatings Show will be held in Indianapolis, Indiana on April64.

12-14, 2016. See http://www.american-coatings-show.com/.

NETZSCH is registered to attend the 2016 American Coatings Show and has65.reserved booth #2937.

NETZSCH plans to market its products at the 2016 American Coatings Show using66.

its P & Design and ZETA trademarks.

According to the American Coatings Show’s website, PÜHLER is registered to67.

attend the 2016 American Coatings Show.See Exhibit K.

In fact, PÜHLER has reserved booth #3042, which is right next to NETZSCH’s68.

booth #2937. A floorplan for the show is attached as Exhibit H.

On information and belief, Defendants will market competing products at the 201669.

American Coatings Show using their infringing trademarks.See Exhibit K.

On information and belief, there is a likelihood that customers and potential70.

customers will be confused at the 2016 American Coatings Show by Defendants’ marketing of

products using their infringing trademarks in the booth next to where NETZSCH will be marketing

its products using its P & Design and ZETA trademarks.

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Defendants’ acts are deliberately calculated to confuse and deceive the public and71.

are performed with full knowledge of NETZSCH’s rights. Said acts constitute willful and

deliberate infringement of NETZSCH’s rights in the P & Design and ZETA trademarks.

Defendants are not associated, affiliated, or connected with or endorsed or72.

sanctioned by NETZSCH.

NETZSCH is not able to monitor, enforce, or maintain its quality control standards73.

on the non-genuine/counterfeit products Defendants manufacture, offer for sale, and sell.

Defendants’ use of the P & Design and ZETA trademarks in the manner described74.

above tends to and does create the erroneous impression that Defendants’ products and servicesemanate or originate from NETZSCH, and/or that said products are authorized, sponsored, or

approved by NETZSCH, even though they are not. This confusion causes irreparable harm to

NETZSCH and the P & Design and ZETA trademarks.

Defendants have been unjustly enriched by illegally using and misappropriating75.

NETZSCH’s intellectual property for their own financial gain. Furthermore, Defendants have

unfairly benefited and profited from NETZSCH’s outstanding reputation for high quality products

and its significant advertising and promotion of the NETZSCH Products and the P & Design and

ZETA trademarks.

Defendants’ acts, as set forth herein, are willful and deliberate. Therefore, this case76.

constitutes an exceptional case under 15 U.S.C. § 1117(a).

Irreparable Harm to NETZSCH

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Defendants’ unauthorized use of their infringing trademarks has caused and/or is77.

likely to cause confusion or mistake or deception, now and in the future, as to the origin, source, and

sponsorship of Defendants’ products and NETZSCH’s products.

Defendants’ use of counterfeits of NETZSCH’s trademarks has deceived and/or is78.

likely to deceive the consuming public into believing that they are purchasing genuine goods which

have been manufactured, authorized, or approved by NETZSCH, and has caused and/or is likely to

cause mistake in that consumers assume that NETZSCH has manufactured, authorized, or approved

the counterfeit products sold by Defendants.

Defendants’ use of the infringing trademarks for products that are competing with79.and/or closely related to NETZSCH’s products have resulted in and will continue to result in

incalculable harm to NETZSCH because of a likelihood of confusion among customers and injury

to NETZSCH’s reputation.

In addition to causing NETZSCH to suffer incalculable, irrecoverable, and80.

irreparable lost sales, Defendants’ manufacture, distribution, and sale of counterfeit products

displaying NETZSCH’s trademarks will irreparably injure NETZSCH’s reputation for the

manufacture and sale of the highest quality products because NETZSCH is unable to control the

quality of the materials used by Defendants. Indeed, there is no way to know the quality or safety of

the counterfeit products.

Upon information and belief, Defendants’ conduct is continuing and will continue81.

unless enjoined by this Court.

NETZSCH has no adequate remedy at law.82.

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COUNT ITrademark Counterfeiting 15 U.S.C. § 1114

NETZSCH repeats and re-alleges each and every allegation set forth in the83.

foregoing paragraphs as if fully set forth herein.Defendants have used spurious designations that are identical with, or substantially84.

indistinguishable from, the P & Design and ZETA trademarks and possibly other NETZSCH

trademarks, on the counterfeit products they promote, offer for sale, and sell.

Defendants have intentionally used these spurious designations knowing they are85.

counterfeit, in connection with the advertisement, promotion, offering for sale, and sale of

counterfeit mixers, dispersers, mills, and related products.

Defendants’ unauthorized use of NETZSCH’s P & Design and ZETA trademarks as86.

set forth above is likely to:

a. Cause confusion, mistake, and/or deception;

b. Cause the public to believe that Defendants’ counterfeit mixers,

dispersers, mills, and related products are authorized, sponsored, or

approved by NETZSCH, when they are not; and

c. Result in Defendants unfairly benefiting from NETZSCH’s advertising

and promotion and profiting from NETZSCH’s reputation and its P &

Design and ZETA trademarks all to the substantial and irreparable injury

of the public, NETZSCH, and its trademarks and the substantial goodwill

represented thereby.

Defendants’ acts constitute willful trademark counterfeiting in violation of Section87.

32 of the Lanham Act, 15 U.S.C. § 1114.

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By reason of the foregoing, Defendants are liable to NETZSCH for: (a) an amount88.

representing three time NETZSCH’s damages and/or Defendants’ profits, whichever is greater, or

an election of statutory damages; and (b) reasonable attorneys’ fees, costs including investigative

fees, and pre-judgment interest pursuant to 15 U.S.C. § 1117.

COUNT IITrademark Infringement 15 U.S.C. § 1114


foregoing paragraphs as if fully set forth herein.

This is a claim for infringement of NETZSCH’s federally registered trademarks90.arising under Section 32 of the Lanham Act, 15 U.S.C. § 1114.

As owner of the various federally registered trademarks listed herein, NETZSCH91.

has the exclusive right to import and sell in the U.S. mixers, dispersers, mills, and related products

bearing its trademarks, and has express authority to take action to prevent actual or threatened

infringement of those trademarks.

Continually, for a long time prior to the acts of the Defendants complained of herein,92.

NETZSCH has sold a wide range of mixers, dispersers, mills, and related products that use the

NETZSCH trademarks.

Continually, for a long time prior to the acts of the Defendants complained of herein,93.

NETZSCH has been and is now marketing, offering for sale and selling products bearing the

NETZSCH trademarks in the State of Indiana and elsewhere in interstate commerce. Through

NETZSCH’s extensive sales, the public has come to recognize NETZSCH products as being of

excellent quality and reputation.

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By reason of their high quality and as a result of NETZSCH’s continued and94.

extensive sales, advertising, and promotion, products sold under NETZSCH’s trademarks enjoy an

excellent reputation among the public. NETZSCH’s trademark registrations and the resulting

goodwill which has accrued are of great value to NETZSCH in the conduct of its business.

Defendants, with full knowledge of the distinctiveness and widespread recognition95.

of NETZSCH’s trademarks, are promoting and selling to the public counterfeit products that bear

false reproductions of NETZSCH’s trademarks. NETZSCH has never authorized or consented in

any way to the use of its trademarks on any of Defendants’ products, nor has NETZSCH granted

any license to Defendants allowing such use.Defendants have counterfeited the P & Design trademark in the identical color and96.

logo style as that used by NETZSCH.

Defendants’ use of counterfeits of the NETZSCH trademarks in connection with97.

their sale and distribution of competing products infringes NETZSCH’s exclusive rights in its

federally registered trademarks, is likely to cause, and/or has caused, confusion, mistake or

deception, and constitutes trademark infringement in violation of 15 U.S.C. § 1114.

Defendants’ conduct is intentionally fraudulent, malicious, willful, and wanton, and98.

Defendants should be held liable to NETZSCH for additional remedies, including treble damages

and attorneys’ fees pursuant to 15 U.S.C. § 1117.

Defendants’ conduct is causing immediate and irreparable injury to NETZSCH and99.

to its goodwill and reputation, and will continue both to damage NETZSCH and to deceive the

public, unless permanently enjoined by this Court. NETZSCH has no adequate remedy at law.

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By reason of the foregoing, Defendants are liable to NETZSCH for: (a) an amount100.

representing NETZSCH’s damages; (b) Defendants’ profits; and (c) reasonable attorney’s fees,

costs including investigative fees, and pre-judgment interest pursuant to 15 U.S.C. 1117.

COUNT IIIFalse Designations of Origin, False Descriptions and Unfair Competition 15 U.S.C. §

1125(a)


foregoing paragraphs as if fully set forth herein.

This is a claim for false designation of origin, false description, or representation and102.

unfair competition arising under the Lanham Act, Section 43(a), 15 U.S.C. § 1125(a).

The use of reproductions of NETZSCH’s trademarks on products sold by103.

Defendants constitutes the use in commerce of false designations of origins, false description, and

unfair competition because such designations and representations tend to wrongly and falsely

designate the products distributed, offered for sale, and sold by Defendants as originating from,

being connected with, sponsored or authorized by NETZSCH.

On information and belief, the counterfeit products that Defendants sell and offer for104.

sale are deliberately and intentionally designed to falsely simulate genuine NETZSCH products and

damage NETZSCH’s excellent reputation.

By reason of the foregoing, Defendants have violated and are continuing to violate105.

Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) and Defendants are liable to NETZSCH for:

(a) an amount representing NETZSCH’s damages; (b) Defendants’ profits; and (c) reasonable

attorneys’ fees, costs including investigative fees, and pre-judgment interest pursuant to 15 U.S.C. §

1117.

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NETZSCH has no adequate remedy at law and is suffering irreparable harm.106.

COUNT IV

Common Law Unfair Competition

NETZSCH repeats and re-alleges each and every allegation in the foregoing107.

paragraphs as if fully set forth herein.

Defendants’ acts have caused a likelihood of injury to NETZSCH’s goodwill and108.

business reputation, impaired the effectiveness of the NETZSCH trademarks, and diluted

NETZSCH’s distinctive trademarks.

NETZSCH’s trademarks have come to have a secondary meaning indicative of109.origin, relationship, sponsorship, or association with NETZSCH. The purchasing public is likely to

attribute to NETZSCH the use by Defendants of NETZSCH’s trademarks, as a source of origin,

authorization, or sponsorship for Defendants’ products and, therefore, to utilize and/or buy

Defendants’ products in that erroneous belief.

Upon information and belief, Defendants have intentionally appropriated110.

NETZSCH’s trademarks with the intent of causing confusion, mistake, and deception as to the

source of its goods, and with the intent to palm off its goods as those of NETZSCH, and to place

others in the position to palm off their goods as those of NETZSCH and, as such, Defendants have

committed trademark infringement and unfair competition under the common law of the State of

Indiana.

PRAYER FOR RELIEF

WHEREFORE, NETZSCH prays for judgment as follows:

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A. Grant of a permanent injunction enjoining and restraining Defendants and their officers,

agents, servants, employees, owners, representatives, and attorneys, and all those in

active concert or participation with them, from:

a. substantially imitating, copying, counterfeiting, or making unauthorized use of

NETZSCH’s trademarks;

b. manufacturing, distributing, importing, circulating, advertising, selling, offering

for sale, moving or otherwise disposing of any product or simulation,

reproduction, counterfeit, copy, or colorable imitation of NETZSCH’s

trademarks;c. using any simulation, reproduction, counterfeit, copy, colorable, or confusingly

similar imitation of NETZSCH’s trademarks;

d. using any false description or designation of origin or representation (including,

without limitation, any letters, words, symbols, or other text) which can, or is

likely to lead the trade or public, or individual members thereof, to believe that

any product manufactured, imported, advertised, distributed, and/or sold by

Defendants is in any manner associated or connected with NETZSCH or is sold,

licensed, sponsored, or approved by NETZSCH;

e. engaging in any course of conduct likely to cause confusion, deception, or

mistake, or to injure NETZSCH’s business reputation or dilute the distinctive

quality of NETZSCH’s name and trademarks;

f. engaging in any other activity constituting an infringement of NETZSCH’s

trademarks or NETZSCH’s rights in or right to exploit the same;

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g. secreting, destroying, altering, removing, or otherwise dealing with the

unauthorized products or any books or records which contain any information

relating to the importing, manufacturing, producing, acquiring, distributing,

circulating, selling, marketing, offering for sale, advertising, promoting, renting,

or displaying of unauthorized products which infringe NETZSCH’s trademarks;

h. causing an infringement of any of NETZSCH’s trademarks or of NETZSCH’s

rights to use or to exploit said trademarks, or causing any dilution of NETZSCH’s

name, reputation, or goodwill; and

i.

assisting, aiding, or abetting any other person or business entity in engaging in or performing any of the activities referred to in subparagraphs (a) through (h),

above.

B. Enter an order for Judgment in favor of NETZSCH and against Defendants on each and

every Claim of this Complaint, including:

a. Finding that the Defendants have unfairly competed with NETZSCH by the acts

complained of herein;

b. Finding that the Defendants have infringed NETZSCH’s trademarks by the acts

complained of herein;

c. Directing that the Defendants deliver up for destruction to NETZSCH all

unauthorized products, articles, and advertising material of any kind in its

possession or under its control bearing any of NETZSCH’s trademarks or any

simulation, reproduction, counterfeit, copy, or colorable imitation thereof, and all

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plates, molds, matrices, and other means of production of same pursuant to 15

U.S.C. § 1118;

d. Requiring Defendants to recall all of their products sold under or bearing

counterfeits of NETZSCH’s trademarks;

e. Requiring that the Defendants, within thirty (30) days after service of notice of

the entry of judgment, or an injunction pursuant thereto, file with the Court and

serve on NETZSCH’s counsel a written report under oath setting forth in detail

the manner in which the Defendants have complied with the Court’s order and

this injunction pursuant to 15 U.S.C. § 1116(a);f. Awarding to NETZSCH all of Defendants’ gross profits and any other damages

NETZSCH has sustained as a consequence of the Defendants’ infringement of

NETZSCH’s trademarks and unfair competition and requiring Defendants to

account for all gains, profits, and advantages derived by Defendants from the

sale of their infringing products bearing NETZSCH’s trademarks and that the

award to NETZSCH be trebled, as provided for under 15 U.S.C. § 1117(b);

alternatively, that NETZSCH be awarded statutory damages pursuant to 15

U.S.C. § 1117(c) of up to Two Million Dollars ($2,000,000) for each trademark

per type of goods sold that Defendants have willfully counterfeited and

infringed;

g. Awarding to NETZSCH the costs of this action together with reasonable

attorneys’ and investigators’ fees and prejudgment interest in accordance with 15

U.S.C. § 1117;

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h. That NETZSCH be awarded punitive damages for Defendants’ willful and

malicious acts of counterfeiting, infringement, and false designations of origin to

deter future unlawful activities complained of herein.

i. That pursuant to 11 U.S.C. § 523(a)(6), Defendants be prohibited from a

discharge under 11 U.S.C. § 727 for malicious, willful, and fraudulent injury to

NETZSCH.

j. Awarding to NETZSCH such other and further relief as the Court may deem just

and proper or otherwise provided by law, together with the costs and

disbursements which NETZSCH has incurred in connection with this action.

JURY DEMAND

NETZSCH demands a trial by jury on all claims and issues so triable.

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Respectfully submitted,

Date: April 8, 2016 /s/Patrick F.X. Fitzpatrick, Jr.Jeffrey Kosc, Attorney No. 26234-49Patrick F.X. Fitzpatrick, Jr., Attorney No. 32303-49Benesch, Friedlander, Coplan & Aronoff LLPOne American Square, Suite 2300Indianapolis, Indiana 46282!0018Telephone: 317.685.6131Facsimile: 317.685.6031 [email protected]

Of counsel (subject to pro hac vice admission)

Wesley W. Whitmyer, Jr.Michael A. LavineStephen F.W. Ball, Jr.WHITMYER IP GROUP LLC600 Summer StreetStamford, Connecticut 06901Telephone: (203) 703-0800Facsimile: (203) [email protected]@[email protected]@whipgroup.com

Attorneys for Plaintiff, NETZSCH PremierTechnologies, LLC.

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Documents

Netzsch Premier Technologies Complaint