cybergun - am complaint

7/28/2019 Cybergun - Am Complaint

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J. Stephen Peek, Esq.Nevada Bar No. 1758Michael W. Wadley, Esq.Nevada Bar No. 12119HOLLAND &HART LLP9555 Hillwood Drive, 2nd Floor

Las Vegas, Nevada 89134702-669-4600702-669-4650 [email protected]@hollandhart.com

Brett L. Foster, Esq. (pro hac admission)Richard T. Jackson, Esq. (pro hac admission)Holland & Hart LLP222 S. Main Street, Suite 2200Salt Lake City, Utah 84101801-799-5800801-799-5700 fax

[email protected]@hollandhart.com

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

CYBERGUN S.A., a French Corporation, andFN HERSTAL, S.A., a Belgian Corporation,

Plaintiffs,

v.

JAG PRECISION, a California Corporation,

Defendant.

CASE NO. 2:12-cv-00074-KJD-GWF

AMENDED COMPLAINT

Plaintiffs, Cybergun, S.A. (Cybergun) and FN Herstal, S.A. (FNH), by and throug

their attorneys, Holland and Hart, LLP, and for its Complaint against Defendant Jag Precisio

(Jag), states and alleges as follows:

PARTIES

1. Plaintiff Cybergun is a French corporation organized and existing under the laws Belgium with its principal place of business in Belgium.

2. Plaintiff FNH is a Belgian corporation organized and existing under the laws

Case 2:12-cv-00074-KJD -GWF Document 28 Filed 02/10/12 Page 1 of 17


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Belgium with its principal place of business in Belgium.

3. Defendant Jag, on information and belief, is a California corporation conductinbusiness in Nevada, with its principal place of business at 2223 Troy Avenue, South El Mon

California 91733.

JURISDICTION AND VENUE

4. This Court has subject matter jurisdiction over this action pursuant to 39 of thLanham Act (15 U.S.C. 1121), as this action arises under 32 and 43 of the Lanham Act. Th

Court has supplemental jurisdiction over the factually-related state law claims in this dispu

pursuant to 28 U.S.C. 1367.

5. This Court has personal jurisdiction over Jag because Defendants miscondugiving rise to this lawsuit occurred in the District of Nevada. Jag has purposely availed itself

the benefits of conducting business in the District of Nevada and is therefore subject to t

jurisdiction in this Court.

6. Venue is proper in this Court pursuant to 28 U.S.C. 1391(a) and (b) as the condugiving rise to this action took place in the District of Nevada and the relevant potential witness

are located within the District of Nevada.

GENERALALLEGATIONS

7. For many years, Plaintiff FNH has successfully marketed, manufactured and sohigh quality firearms and firearm products to the consuming public and to law enforcement an

military customers. In June 2010, FNH entered into a license agreement whereby Plaint

Cybergun became the exclusive licensee to weapons manufactured by FNH in the area of airso

guns. Pursuant to the license agreement, Cybergun is given authority by FNH to prosecu

infringement claims against third parties on behalf of or in conjunction with FNH.

I. THE SCAR8. Since 2009, Plaintiff FNH has successfully marketed, manufactured and sold a lin

of assault rifles referred to as SCAR, which is short for Special Operations Forces Combat Assau

Rifle. In addition to its distinctive appearance, the SCAR line of products is renowned for

accuracy, enhanced modular trigger capable of being configured for single-stage or two-sta



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operation, and low-volume and magazine stoppage.

9. Since being introduced, sales of the SCAR line of assault rifles to consumers in thUnited States have been in the hundreds of millions of dollars.

10. Since acquiring the rights to do so, Plaintiff Cybergun has marketed and sold thSCAR airsoft gun to the consuming public. Together, FNHs SCAR firearm and Cybergun

SCAR airsoft gun are referred to herein as Plaintiffss SCAR guns.

11. To distinguish it from competitors, Plaintiffs SCAR guns are uniquely configurePlaintiffs SCAR guns include in combination, inter alia, an M16 compatible pistol grip, a wedg

shaped end, front and rear sights protruding upwardly, an uninterrupted Picatinny rail on the top

the rifle, similar rails on the bottom and sides, and the guns overall dimensions and shape.

12. Attached as Exhibit A and incorporated herein is an excerpt from producatalogues depicting Plaintiff FNHs SCAR firearm. Attached as Exhibit B and incorporat

herein is an excerpt from product catalogues depicting Plaintiff Cyberguns SCAR airsoft gun.

II. THE M249 MKII AND M249 PARA13. For decades, Plaintiff FNH has successfully marketed, manufactured and sold a li

of light machine guns referred to by the names MINIMI and/or M249 (M249). Plaintiff FN

has sold, among others, two versions of the M249, one of which is sold under the M249 trademar

and the other of which is sold under the trademark M249 PARA. In addition to distincti

appearance, the M249 line of products is known for its manually adjustable gas valve and i

ability to be instantly changed from belt feed to magazine feed without any modification.

14. Since being introduced, sales of the M249 line of light machine guns to consumein the United States have been in the hundreds of millions of dollars.

15.

Since acquiring the rights to do so, Plaintiff Cybergun has marketed and sold tw

versions of the M249 airsoft gun to the consuming public: the M249 MKII and M249 PARA

Together, FNHs M249 firearms and Cyberguns M249 airsoft guns are referred to herein

Plaintiffs M249 guns.

16. To distinguish it from competitors, Plaintiffs M249 guns are uniquely configurePlaintiffs M249 guns include in combination, inter alia, a pistol grip having lateral grooves,



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contoured carrying handle extending from the top of the barrel, a groove where the stock widens

rounded portion that protrudes in the upper portion of the rear of the stock, a rear aperture sigh

and the guns overall dimensions and shape. Plaintiffs M249 PARA guns include in combinatio

inter alia, a pistol grip having lateral grooves, a contoured carrying handle extending from the t

of the barrel, two rods coupled by a bridge to form the stock at the rear of the gun, the bridg

having an additional circular opening on a visible interior portion, a rear aperture sight, and t

guns overall dimensions and shape.

17. Attached as Exhibit C and incorporated herein is an excerpt from producatalogues depicting Plaintiff FNHs M249 firearms. Attached as Exhibit D and incorporat

herein is an excerpt from product catalogues depicting Plaintiff Cyberguns M249 airsoft guns.

18. Due to longstanding use dating back decades, Plaintiff FNH has acquired rights the marks MINIMI, M249, M249 MKII and M249 PARA, as customers have come to vie

products so designated as originating from or associated with FNH. Plaintiff Cybergun uses t

marks MINIMI, M249 MKII and M249 PARA on its M249 guns under license from Plainti

FNH.

III. THE P9019. Since approximately 1990, Plaintiff FNH has also successfully markete

manufactured and sold a line of personal defense weapons referred to as the FN P90, which nam

is derived from the year it was introduced. In addition to its distinctive appearance, the P90

renowned for being ambidextrous and maneuverable in tight spaces.

20. Since being introduced, sales of the P90 rifles to consumers in the United Stathave been in the hundreds of millions of dollars.

21.

Since acquiring the rights to do so, Plaintiff Cybergun has marketed and sold th

P90 airsoft gun to the consuming public. Together, FNHs P90 firearm and Cyberguns P

airsoft gun are referred to herein as Plaintiffs P90 guns.

22. To distinguish it from competitors, Plaintiffs P90 guns are uniquely configurePlaintiffs P90 guns include in combination, inter alia, a thumbhole acting as a pistol grip,

oversized trigger guard, smooth contours, bullpup configuration, a horizontally mounted feedin



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system, and the guns overall dimensions and shape.

23. Attached as Exhibit E and incorporated herein is an excerpt from producatalogues depicting Plaintiff FNHs P90 firearm. Attached as Exhibit F and incorporated herein

an excerpt from product catalogues depicting Plaintiff Cyberguns P90 airsoft gun.

24. Due to longstanding use dating back decades, Plaintiff FNH has acquired rights the mark P90, as customers have come to view products so designated as originating from

associated with FNH. Plaintiff FNH has obtained a trademark registration in the United States f

its mark P90. A copy of U.S. Trademark Registration No. 1,994,751 is attached as Exhibit

Plaintiff Cybergun sells its licensed version of the gun under license of the P90 mark. Plaintif

registration for P90 is incontestable and constitutes prima facie evidence of the validity of the P9

mark.

IV. PLAINTIFFS GUNS25. Plaintiffs have enjoyed considerable success in marketing Plaintiffs guns cloak

with the trademarks and distinctive trade dress set out above. This includes sales of the abov

listed firearms to branches of the United States military and various law enforcement agencies.

26. Through considerable investment, advertising, marketing and sales, the public hcome to know and associate Plaintiffs as the sole source of high quality, distinctive guns, liste

herein.

27. In addition to rights in the design based on the Lanham Act, Plaintiff FNH is towner of all right, title and interest to United States Design Patent No. D641,824 (the 8

patent) entitled Assault Rifle that was duly and legally issued by the U.S. Patent and Tradema

Office on July 19, 2011. Attached as Exhibit H is a true and correct copy of the 824 pate

Plaintiff Cybergun is the exclusive licensee to the design set forth in the 824 patent in the area

airsoft guns.

28. In addition to its trademark and trade dress rights, Plaintiffs possess valcopyrights in the design of the SCAR guns. The SCAR design, as set forth herein, constitutes

original work of authorship. Plaintiff FNH has applied for registration of its copyright in t

SCAR gun with the U.S. Copyright Office.



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V. JAGS ACTS29. Recently, Defendant Jag presented and advertised certain airsoft gun produc

including the ECHO1 USA ASC (Advanced Squad Carbine); ECHO1 USA ASC-H (Advanc

Squad Carbine Heavy); Vega Force MK16; and Vega Force MK17. Attached as Exhibit I a

printouts from Jags website, advertising and offering for sale the Vega Force MK16 and MK

airsoft guns.

30. A comparison of the Plaintiffs SCAR guns and Defendants accused airsoft gu(Exhibits A, B, and H versus Exhibit I) demonstrate Jags clear attempt to copy Plaintiff

proprietary trade dress and design.

31. Specifically, Defendants accused SCAR knockoffs infringe on Plaintiffs tradress and design rights by, among other things, misappropriating the M16 compatible pistol gr

the wedge-shaped end, front and rear sights protruding upwardly, the uninterrupted Picatinny r

on the top of Plaintiffs SCAR guns, with similar rails on the bottom and sides, and the gun

overall dimensions and shape.

32. Defendant Jag has also presented and advertised additional airsoft gun products, tECHO1 USA M249 MKII and the ECHO1 USA M249 PARA. Attached as Exhibit J are printou

from Jags website, advertising and offering for sale the ECHO1 USA M249 MKII produc

Attached as Exhibit K are printouts from Jags website, advertising and offering for sale th

ECHO1 USA M249 PARA product. Attached as Exhibit L are various pages from a brochu

handed out by Jag at a recent trade show, showing Jags advertisement and offer for sale of t

ECHO1 USA M249 MKII and ECHO1 USA M249 PARA products.

33. A comparison of Plaintiffs M249 guns and Defendants accused M249 MKII aM249 PARA airsoft guns (Exhibits C and D versus Exhibits J, K and L) again demonstrate Jag

clear attempt to copy Plaintiffs proprietary trade dress and design, and to improperly appropria

Plaintiffs trademark.

34. Specifically, Defendants accused M249 MKII airsoft guns infringe on Plaintifftrade dress and design rights by, among other things, misappropriating a pistol grip having later

grooves, a contoured carrying handle extending from the top of the barrel, a groove where t



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stock widens, a rounded portion that protrudes in the upper portion of the rear of the stock, a re

aperture sight, and the guns overall dimensions and shape.

35. Specifically, Defendants accused M249 PARA airsoft guns infringe on Plaintifftrade dress and design rights by, among other things, misappropriating a pistol grip having later

grooves, a contoured carrying handle extending from the top of the barrel, two rods coupled by

bridge to form the stock at the rear of the gun, the bridge having an additional circular opening

a visible interior portion, a rear aperture sight, and the guns overall dimensions and shape.

36. Defendant Jag has also presented and advertised additional airsoft gun producincluding the ECHO1 USA E90. Attached as Exhibit M are printouts from Jags websi

advertising and offering for sale the ECHO1 USA E90 product.

37. A comparison of Plaintiffs P90 guns and Defendants accused E90 airsoft gu(Exhibits E and F versus Exhibit M) again demonstrate Jags clear attempt to copy Plaintiff

proprietary trade dress and design, and to improperly appropriate Plaintiffs trademark.

38. Specifically, Defendants accused E90 knockoffs infringe on Plaintiffs trade dreand design rights by, among other things, misappropriating a thumbhole acting as a pistol grip, a

oversized trigger guard, smooth contours, bullpup configuration, a horizontally mounted feedin

system, and the guns overall dimensions and shape.

39. Defendants copying of Plaintiffs trade dress and design is an attempt to trade othe goodwill that Plaintiffs have established over years of manufacturing, selling, and licensing

distinctive trade dress. Moreover, the use of Plaintiffs trademarks is an attempt to trade off t

goodwill that Plaintiffs have established over years of manufacturing, selling, and licensi

products using Plaintiffs marks.

40.

By offering the accused airsoft guns for sale, Defendant infringes Plaintiffs tra

dress, trademark, and patent rights. The trade dress of Jags knockoff productsthe total produ

and overall impression of the product, its size, shape, configuration, and designis likely to cau

confusion in the marketplace with Plaintiffs trade dress as to the source, origin, or sponsorship

the products.

41. On information and belief, Defendant Jag knowingly and intentionally copied t



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trade dress and design of Plaintiffs guns as well as Plaintiffs trademarks in an attempt to ta

unfair advantage of and trade off the reputation and goodwill of Plaintiffs, which has be

established over many years in the industry.

42. Plaintiffs have not approved Jags use or misappropriation of Plaintiffs trade dreor design, or of Plaintiffs trademarks.

43. Jag also, without authority, has used the trademarks of Plaintiff Cybergun in thsource code of its website at www.jagprecision.com. In particular, various of Jags web pag

have utilized the trademarks (or confusingly similar variations thereof) as meta tags intended

attract additional customers to Jags website that offers the infringing airsoft guns. For examp

attached as Exhibit N is a printout of the HTML code for Jags website, which improperly includ

at least the trademarks SOFT AIR USA, SOFTAIR, and CYBERGUN. Trademark registrati

certificates for these trademarks are attached as Exhibits O-R.

44. The actions of Jag demonstrate a violation of copyright and trademark lawamounting to unfair competition and deceptive trade practices. These actions have resulted in,

will result in, a substantial diversion of trade from Plaintiff Cybergun to Jag and further exacerba

consumer confusion.

45. The natural, probable, and foreseeable result of Jags wrongful conduct will depriCybergun of the commercial benefits of Plaintiffs trade dress and design, will deprive Cyberg

of other business opportunities, will deprive Plaintiffs of goodwill, and will injure Plaintiff

relations with present and prospective customers.

46. Plaintiffs are informed and believe that, unless enjoined by this Court, Jag intento continue its course of conduct to wrongfully use, infringe upon, sell or otherwise profit fro

Plaintiffs trade dress and design. As a direct and proximate result of Jags acts, as alleged abov

Plaintiffs have and will suffer irreparable damage and sustain lost profits.

47. Plaintiffs have no adequate remedy at law to redress all of the injuries Jag hcaused, and intended to cause, by its conduct. Plaintiffs will continue to suffer irreparable inju

and sustain lost profits unless Jags actions, as alleged above, are enjoined by this Court.

///



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FIRSTCAUSEOFACTION

(DESIGN PATENT INFRINGEMENT)

48. Plaintiffs hereby incorporate all of the foregoing allegations as if set forth in fuherein.

49. Jag has infringed, contributorily infringed, and/or induced infringement of the 8patent by selling and offering for sale products that infringe the claimed design of the 824 paten

35 U.S.C. 271(a).

50. Upon information and belief, Jag has actual knowledge of the 824 patent ycontinues to distribute and offer to sell products which infringe the 824 patent. Jags infringeme

of the 824 patent has damaged and will continue to damage Plaintiffs unless enjoined by th

Court.

SECONDCAUSEOFACTION

(TRADE DRESS INFRINGEMENTLANHAM ACT 43(a))


52. Plaintiffs are entitled to legal protection of their trade dress under 43(a) of thLanham Act, which trade dress includes the total or overall impression of Plaintiffs SCAR gun

Plaintiffs M249 guns, and Plaintiffs P90 guns, derived from their unique configuration, siz

shape, design, as Plaintiffs guns are presented to the consuming public.

53. Jag has so closely imitated and/or copied the trade dress of Plaintiffs guns such ththere is a likelihood of confusion among the consuming public as to the source, origin,

sponsorship of the accused airsoft guns. The consuming public will erroneously believe th

Defendants product comes from Plaintiffs or is licensed or sponsored by Plaintiffs.

54. By using Plaintiffs trade dress in the configuration of the accused airsoft guns anrelated advertising, as alleged above, Jag has infringed upon Plaintiffs trade dress and goodwill.

55. On information and belief, Jags copying of Plaintiffs trade dress was intentionand in bad faith. Jag intended to create an airsoft gun confusingly similar in appearance

Plaintiffs guns and intended to market its knockoff airsoft guns in direct competition wi



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Cybergun to consumers searching for Plaintiffs products.

56. The accused airsoft guns and Plaintiffs guns are strikingly similar, substantialduplicated, virtually identical, substantially identical, remarkably similar, essentially duplicat

and/or closely imitated.

57. Jags acts of trade dress infringement have caused and continue to cause damagand injury to Plaintiffs.

58. Plaintiffs may recover for their damages an award to compensate Plaintiffs for tinjuries and damages they has sustained as a result of Jags conduct which violates 43(a) of t

Lanham Act.

59. Because Jags acts were intentional, willful, and/or deliberate, Plaintiffs are entitlto an award of treble damages under 43(a) of the Lanham Act.

60. Plaintiffs are entitled to an award of pre-judgment interest for damages sustained a result of the Jags wrongful conduct.

61. Jags wrongful, malicious, fraudulent, deliberate, willful, intentional and/incredible conduct makes this case an exceptional case, entitling Plaintiffs to an award

attorneys fees and costs under the Lanham Act. 15 U.S.C. 1117(a).

62. Plaintiffs have no adequate remedy at law, have suffered and continue to suffirreparable harm as a result of Jags acts, and are therefore entitled to a preliminary and permane

injunction to enjoin Jags wrongful conduct.

THIRDCAUSEOFACTION

(FALSE DESIGNATION OF ORIGIN AND FALSE ADVERTISINGLANHAM ACT 43(a))

63. Plaintiffs hereby incorporates all of the foregoing allegations as if set forth in fuherein.

64. The foregoing uses by Jag of Plaintiffs trade dress in connection with Jags attemto sell infringing airsoft guns constitutes false designations of origin, false or misleadin

descriptions of fact, and false or misleading misrepresentations of fact which are likely to cau

confusion or cause mistake or to deceive as to the affiliation, connection, or association of Jag wi

Plaintiffs, or as to the origin, sponsorship or approval of Jags products and business activities b



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Plaintiffs.

65. Jags use and commercial advertising of Plaintiffs trade dress misrepresent tnature, characteristics, qualities, or geographic origin of Jags goods, services and commerc

activity. These actions relate to the interstate marketing of Jags infringing products.

66. These actions and statements of Jag are affirmatively misleading, partialincorrect, or false because they fail to disclose material facts. These actions and statements ha

caused or will cause actual deception or at least a tendency to deceive a substantial portion of t

consuming public, the actions and statements are likely to affect purchasing decisions, and a

likely to cause injury to Plaintiffs goodwill.

67. By so acting, Jag has violated 43(a) of the Lanham Act.68. Jags acts of infringement have caused and continue to cause damages and injury

Plaintiffs, for which Plaintiffs must be fully compensated.

69. Jags uses of Plaintiffs trade dress have been with full knowledge of Plaintiffrights; such infringing activities of Jag are willful and intentional, making this case exception

within the meaning of the Lanham Act, thereby justifying an award of treble damages, attorney

fees and pre-judgment interest.



FOURTHCAUSEOFACTION

(TRADEMARK INFRINGEMENTLANHAM ACT 32,43)

71. Plantiffs hereby incorporate all of the foregoing allegations as if set forth in fuherein.

72. Jag has infringed Plaintiff FNHs registered trademark P90. Jag has improperused the confusingly similar designation E90 for its knockoff of Plaintiffs P90 guns. In additio

Jag has improperly used the designation M249 MKII and M249 PARA in connection with

knockoff of Plaintiffs M249 guns.

73. Jag has also used one of more of Plaintiff Cyberguns registered trademark



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Among other things, Jag has improperly used at least the marks SOFT AIR, SOFTAIR, and/

CYBERGUN through the operation of its website located at www.jagprecision.com (e.g., t

marks are used as meta tags).

74. Jags unauthorized use of Plaintiffs registered trademarks (or confusingly similvariations thereof) has actually or has had the capacity to cause confusion, to cause mistake, or

deceive as to the affiliation, connection, or association of Jags airsoft gun products with Plaintif

or as to the origin, sponsorship or approval of Jags airsoft gun products by Plaintiffs.

75. Jags unauthorized use of Plaintiffs trademarks (or confusingly similar variatiothereof) in interstate commerce has been and will continue to be material and likely to influen

consumer purchasing decisions.

76. On information and belief, Jags use of Plaintiffs trademarks was intentional, anin bad faith.

77. Jags conduct, including as described above, constitutes trademark infringement violation of 15 U.S.C. 1114(a) and/or 1125(a).

78. Plaintiffs may recover for their damages an award to compensate Plaintiffs for tinjuries and damages they have sustained as a result of Jags conduct.



FIFTHCAUSEOFACTION

(UNFAIR COMPETITIONCOMMON LAW)


81. In taking the above actions, Jag has participated in unfair competition and unfabusiness practices. The actions as alleged above, constitute a misappropriation and infringeme

of Plaintiffs trade dress rights in Plaintiffs SCAR guns and accompanying goodwill an

reputation under the Lanham Act, federal common law and the common law of the State

Nevada, and constitute acts of unfair competition.



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82. As alleged above, Plaintiffs have distinctive and protectable rights. Jags actiocause a likelihood of confusion among consumers in the marketplace and therefore constitu

unfair competition.

83. Jags acts of willful and intentional infringement have caused and continue to caudamages and injury to Plaintiffs for which Plaintiffs must be compensated.

SIXTHCAUSEOFACTION

(COPYRIGHT INFRINGEMENT17U.S.C. 501)


85. Plaintiffs are entitled to legal protection of their copyright under 17 U.S.C. 102 the Copyright Act, which copyright includes the original, expressive work of authorship in t

SCAR, including among other things its unique configuration, size, shape, design, the M

compatible pistol grip, the wedge-shaped end, front and rear sights protruding upwardly, and th

uninterrupted Picatinny rail on the top of Plaintiffs SCAR guns, with similar rails on the botto

and sides.

86. Jag, in distributing copies of the SCAR or derivates thereof, has violated Plaintiffexclusive rights as provided by 17 U.S.C. 106, and is therefore liable for infringement under

U.S.C. 501-505.

87. Jags acts of infringement have caused and continue to cause damages and injury Plaintiffs, for which Plaintiffs must be fully compensated pursuant to 17 U.S.C. 504-505.

88. Jags infringement of valid copyrights has been with the full knowledge Plaintiffs rights in those copyrights, making the infringement willful.

89.

Plaintiffs have no adequate remedy at law, have suffered and continue to suff

irreparable harm as a result of Jags acts, and are therefore entitled to a preliminary and permane


SEVENTHCAUSEOFACTION

(DECEPTIVE TRADE PRACTICESNEV.REV.STAT.598.0915,598.0923)

90. Plaintiffs hereby incorporate all of the foregoing allegations as if set forth in fu



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HOL

LAND

&H

ARTLLP

9555

HillwoodDrive,

2ndFloor

La

sVegas,

Nevada89134

herein.

91. Through the conduct alleged above, Jag has passed off their airsoft guns as thouthey were Plaintiffs or as if Jag is affiliated with or doing business with Plaintiffs.

92. Jags conduct, as alleged above, has caused a likelihood of confusion misunderstanding as to the source, sponsorship, approval or certification of Jags goods a

services by Plaintiffs.

93. Jags conduct, as alleged above, has caused the likelihood of confusion misunderstanding as to an affiliation, connection or business association between Jag an

Plaintiffs, or a certification by Plaintiffs of Jag and its infringing airsoft guns.

94. Jag has so closely imitated Cyberguns SCAR airsoft gun so as to create likelihood of confusion or of misunderstanding in the marketplace as to the source of th

competing airsoft guns.

95. Jags conduct as set forth above, indicates that it has failed to disclose material facin connection with the sale of goods and services.

96. The foregoing misconduct of Jag constitutes deceptive trade practices under NeRev. Stat. 598.0915 and 598.0923.

97. Plaintiffs are entitled to recover damages to fairly and reasonably compensate thefor Jags tortuous conduct.

98. Plaintiffs are entitled to an award of attorneys fees for being required to file anprosecute this action.

99. Jags conduct was willful and malicious, or manifested a knowing reckleindifference toward and a disregard of Plaintiffs rights, therefore entitling Plaintiffs to an award

punitive damages in an amount sufficient to punish Jag and deter similar misconduct by Jag a

others in the future.

100. Plaintiffs have no adequate remedy at law, have suffered and are sufferinirreparable harm as a result of Jags acts, and therefore are entitled to preliminary and permane

injunctive relief to enjoin Jag from further misconduct.

///



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Page 15 of 175390171_2.DOCX

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LAND

&H

ARTLLP

9555

HillwoodDrive,

2ndFloor

La

sVegas,

Nevada89134

EIGHTHCAUSEOFACTION

(UNJUST ENRICHMENT,DISGORGEMENT AND CONSTRUCTIVE TRUST)


102. Plaintiffs are informed and believe that Jag has generated and enjoyed, or wgenerate and enjoy, substantial profits and goodwill as a result of the wrongful conduct alleg

above. Jag is aware of the profits and goodwill it has enjoyed as a result of its use of Plaintif

proprietary designs and trademarks.

103. As a result of Jags infringement of Plaintiffs trade dress and trademark rights, anJags unfair competition, Plaintiffs have been damaged, and Jag has been unjustly enriched. Su

unjust enrichment continues to increase as the profits from Jags wrongful conduct accumulates.

104. To the extent of Jags unjust enrichment, Plaintiffs are entitled to disgorgement all ill-gotten gains and are entitled to the imposition of a constructive trust over all property

money in Jags control or possession as a result of its wrongful conduct.

NINTHCAUSEOFACTION

(INTERFERENCE WITH BUSINESS RELATIONS)


106. As alleged above, Jag has intentionally, unfairly and without justification interferwith the business relations between Plaintiffs, their customers and their prospective customers.

107. Jag has interfered with the business relationships between Plaintiffs and thecustomers and prospective customers for an improper purpose and/or through improper means.

108.

The actions of Jag have unjustifiably caused significant and ongoing damage

existing and potential business relations of Plaintiffs, including the loss of customers, or will do s

Plaintiffs are without an adequate remedy at law. Unless Jag is restrained by this Court, Plainti

will continue to suffer great and irreparable harm.

109. Plaintiffs are entitled to recover, as damages, an amount sufficient to compensaPlaintiffs for Jags tortuous business interference.



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Page 16 of 175390171_2.DOCX

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110. Jags conduct was willful, malicious, or manifested a knowing and reckleindifference toward and a disregard of Plaintiffs rights, therefore entitling Plaintiffs to an award

punitive and exemplary damages in an amount sufficient to punish Jag for its grossly tortuo

conduct and deter similar misconduct by Jag and others in the future.

JURYDEMAND

Plaintiffs hereby demand that all claims or causes of action raised in this Complaint be tri

by a jury to the fullest extent possible under the United States and Nevada Constitutions, statut

and laws.

PRAYERFORRELIEF

WHEREFORE, Plaintiffs prays that this Court:

1. Preliminarily and permanently enjoin and restrain Jag, its officers, directo

principals, agents, servants, employees, successors and assigns, and all those in active concert

participation with it from all acts of trade dress infringement, false designation and advertisin

trademark infringement, unfair competition, copyright infringement, deceptive trade practices

any other wrongful conduct alleged in this Complaint;

2. Preliminarily and permanently enjoin and restrain Jag, its officers, directo

principals, agents, servants, employees, successors and assigns, and all those in active concert

participation with them from using Plaintiffs trade dress in any manufactured product, advertisi

or promotional activity concerning its products and specifically from selling and advertising

ECHO1 USA ASC (Advanced Squad Carbine); ECHO1 USA ASC-H (Advanced Squad Carbi

Heavy); Vega Force MK16; Vega Force MK17; ECHO1 USA M249 MKII; ECHO1 USA M24

PARA; ECHO1 USA E90, or any other product that is the substantial equivalent to the su

products in overall design and appearance;

3. Direct that Jag be required to account for or relinquish to Plaintiffs all gains, profi

and advantages derived by Jag through its unlawful conduct complained of in this Complaint;

4. Direct that Jag pay Plaintiffs such damages as they have sustained as a consequen

of Jags wrongful conduct complained of in this Complaint;

5. Direct that Jag be required to pay Plaintiffs treble damages under 43(a) of t



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123456789

101112~ a

~ . 9 - . : r -~ ~ . . . . , 13~ ~ ~ 14o;:lQ)"'~ o z 15~ "0 n"'0 o::lOJ) 16..... Q)

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19202122232425262728

Lanham Act and under 35 U.S.C. 284 for Jag's deliberate and willful misconduct;6. Direct that Jag pay Plaintiffs an award of punitive damages for Jag's deliberate an

willful misconduct;7. Direct that Jag destroy all labels, signs, prints, packages, wrappers, receptacles, an

advertisements in their possession bearing Plaintiffs' trade dress, and to destroy any reproductioncounterfeit, copy, or colorable imitation of Plaintiffs' SCAR guns, Plaintiffs' M249 guns, anPlaintiffs' P90 guns, and destroy all plates, molds, matrices, and other means of making the sampursuant to 36 of the Lanham Act;

8. Direct that Jag disgorge all of their ill-gotten gains to the extent of its unjuenrichment as a result of its wrongful conduct complained of in this Complaint, and the impositioof a constructive trust upon any or all property and money that is in Jag's possession and control a result of its wrongful conduct complained of in this Complaint;

9. Direct that Jag pay Plaintiffs' costs of this action, together with reasonabattorneys' fees consistent with the Lanham Act, the Copyright Act, and the Nevada DeceptivTrade Practices Act; and

10. Award Plaintiffs such further relief as the Court may deem just and proper.DATED February 10,2012.

5390171_2.DOCX

~ T . ~ ~J. Stephen Peek, Esq.Michael W. Wadley, Esq.HOLLAND & HART LLP9555 Hillwood Drive, 2nd FloorLas Vegas, Nevada 89134Brett L. Foster, Esq. (pro hac admission)RichardT. Jackson, Esq. (pro hac admission)Holland & Hart LLP222 S. Main Street, Suite 2200Salt Lake City, Utah 84101Attorneys for Plaintiffs

Page 17 of 17


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EXHIBIT A

EXHIBIT A

Case 2:12-cv-00074-KJD -GWF Document 28-1 Filed 02/10/12 Page 1 of 5


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|

| 2011 COMMERCIAL PRODUCT CATALOG

CARBINES

42

Telescoping side-foldingpolymer stock

Adjustablecheekpiece

Adjustable folding/removablerear sight

Hard-anodized monolithic

aluminum receiver

MIL-STD 1913accessory rail

Short-stroke gas

piston system

Adjustabfront

Charging handle may bemounted on right or left side

Ambidextrousmagazine release

Composite polymertrigger module

Enlargedtrigger guard

A-2 stylepistol grip

Ambidextroussafety lever

Case 2:12-cv-00074-KJD -GWF Document 28-1 Filed 02/10/12 Page


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SCAR

16SCOMPETITION READY.

The FN SCAR 16S is the semi-auto only version of the U.S. Special

Operations Commands newest service rifle. Light, fast-handling

and quick shooting, the FN SCAR 16S is chambered in 5.56x45mm

NATO (223 Rem.) and features a free-floating, cold hammer-forged

MIL-SPEC barrel with chrome-lined bore. Fully-ambidextrous

operating controls instantly adapt to any shooter and any shooting

position. The receiver-integrated MIL-STD 1913 optical rail and

three accesso ry rai ls enable mounting scopes or electronic

sights, plus tactical lights and lasers. The side-folding polymer

stock is fully adjustable for comb height and length-of-pull,

and is available in authentic USSOCOM Flat Dark Earth (FDE)

or matte black.

ONE MAGAZINE, OWNERS MANUAL AND

LOCKING DEVICE COME STANDARD.

CARBINES

98601 SCAR 16S FLAT DARK EARTH 5.56x45MM (223 REM.)

98501 SCAR 16S FLAT DARK EARTH 5.56x45MM (223 REM.)

98621 SCAR 16S BLACK 5.56x45MM (223 REM.)

98521 SCAR 16S BLACK 5.56x45MM (223 REM.)

PRODUCT DESIGNATION STOCK COLOR CALIBER

NOT SHOWN

NRA AMERICAN RIFLEMANMAGAZINEGOLDEN BULLSEYE AWARD

2010 TACTICAL RIFLE OF THE YEAR



21/123

|

| 2011 COMMERCIAL PRODUCT CATALOG

CARBINES

44

Telescoping side-foldingpolymer stock

Adjustablecheekpiece

Adjustable folding/removablerear sight

Hard-anodized monolithicaluminum receiver

MIL-STD 1913accessory rail

Short-stroke gaspiston system

Adjustablefront s

Charging handle may bemounted on right or left side

Ambidextrousmagazine release

Composite polymertrigger module

Enlarged

trigger guard

A-2 stylepistol grip

Ambidextroussafety lever



22/123

SCAR

17SCOMBAT PROVEN.

Experience the long-range accuracy, downrange power, exceptional

reliability and match-winning versatility of the FN SCAR 17S, the

semi-auto only version of the U.S. Special Operations Commands

newest service rifle. Chambered in 7.62x51mm NATO (308 Win.), the FN

SCAR 17S features a free-floating, cold hammer-forged MIL-SPEC

barrel with chrome-lined bore. Fully-ambidextrous operating

controls instantly adapt the FN SCAR 17S to any user or any shooting

position. The receiver-integrated MIL-STD 1913 optical rail plus

three accessory rails enable mounting of a wide variety of scopes,

electronic sights, tactical lights and lasers. The telescoping,

side-folding polymer stock is fully adjustable for comb height and

length-of-pull.

ONE MAGAZINE, OWNERS MANUAL AND

LOCKING DEVICE COME STANDARD.

CARBINES

NOT SHOWN

98641 SCAR 17S FLAT DARK EARTH 7.62x51MM (308 WIN.)

98541 SCAR 17S FLAT DARK EARTH 7.62x51MM (308 WIN.)

98661 SCAR 17S BLACK 7.62x51MM (308 WIN.)

98561 SCAR 17S BLACK 7.62x51MM (308 WIN.)

PRODUCT DESIGNATION STOCK COLOR CALIBER



23/123

EXHIBIT B

EXHIBIT B



24/123


lEW FN SCARLTMI I TEM. 200905I I 479t! PPM..

424fpa*.W Fl SCARL111 ' i 'I I ITEMI 20090 6 ~I I 479t!PPM** ~ ~TM

mM t1151Z1mMt115110 lrllollfJUISI

ITEMU05319

rnMf313171 ITEMti05Z14 - g , ~~ . 2 .I , . #

FN HERS

: ~ II'EMII05I~ - I V t i o d d o d.. _ 4~ - ~ -,2llg .

l ~ l l l l n o r ~- Ringe I Forlee Tnll


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EXHIBIT D

EXHIBIT D



28/123



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@0:::-~u..

MINIM M249 MKII

VelocityiVeloddad 0.20g BBs 380 fpsWeight I Pes_ 10 LbsMag (apaCity I Peso Capatidad del cargador 240 RdsPaQ(age Style /Tfpo de embalaje Box

~ ITEM#48608 ltellect NiMH BatteryITEM# 603239FN MINIM PARA

~ > I T E M # 20951Velocity IVelocidad 020g BBs 380 fpsWeight I Peso 9.5 LbsMag CapacityI Peso Capacidad del cargador 240 RdsPackage Style I Tipo de embalaje Box

~ I T E M # 48608 ltellect NiMH BatteryITEM# 603239FN HERSTAland th e k1go are reg1slered trademarks of FN HEASTAlaOO


30/123

EXHIBIT E

EXHIBIT E



31/123

,!7%.&/2#%-%.4s-),)4!29

4!#4)#!,

)DEALFORURBANANDCLOSEQUARTERSOPERATIONSTHE03TANDARDCOMESWITHANADJUSTABLENONMAGNIFYING

WHITERETICLEOPTICALSIGHTWHILETHE0342OFFERSTHREE-),34$RAILSFORMOUNTINGOPTIONALOPTICAL

sights, tactical lights and lasers. Chambered in the high velocity 5.7x28mm cartridge, both the selective fire

ANDTHESEMIAUTOMATIC0VARIANTSUTILIZESTRAIGHTBLOWBACKOPERATIONANDlREFROMACLOSEDBOLTFORGREATERACCURACYANDRELIABILITY4HE0SCOMPACTCOLDHAMMERFORGED-),30%#BARRELISEQUIPPEDWITHAN

INTEGRATEDMUZZLEBRAKETOREDUCERECOIL!ROUNDPOLYMERDETACHABLEMAGAZINEISSTANDARD4HE0S

SAFETYSWITCHISLOCATEDINSIDETHETRIGGERGUARDFOREASYACCESS$UALMAGAZINELATCHESCOCKINGHANDLESAND

ANINNOVATIVEMATTEBLACKSYNTHETICTHUMBHOLESTOCKWITHAMOLDEDINSLINGATTACHMENTPOINTHELPMAKETHE

0FULLYAMBIDEXTROUS

4(%3-!,,#!,)"%20,!4&/2-7)4()-02%33)6%0%2&/2-!.#%

PRODUCT DESIGNATION CALIBER BARRE

3818900093 P90 STD SEL. FIRE 5.7x28MM 10.39"

3818900793 P90 STD SEMI-AUTO 5.7x28MM 10.39"

3818900493 P90 TR SEL. FIRE 5.7x28MM 10.39"

3818900393 P90 TR SEMI-AUTO 5.7x28MM 10.39"



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0::::


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EXHIBIT G

EXHIBIT G



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Case 2:12-cv-00074-KJD -GWF Document 28-8 Filed 02/10/12 Page 3 of 13I IIII 1111111111111111111111111111111111111111111 11111111111(12) United States Design PatentGridelet(54) ASSAULT RIFLE(75) Inventor: Benoit Marie Gridelet , Wandre (BE)(73) Assignee: FN Herstal SA, Herstal (BE)(**) Term: 14 Years(21) Appl. No.: 29/363,427(22) Filed: Jun.9,2010(30) Foreign Application Priority Data

Mar. 24, 20 I 0 (EM) ............. ........ .... 00 I 686296-0001(51) LOC (9) Cl. .................................................. 22-01(52) U.S. Cl. ...................................................... D22/103(58) Field of Classification Search ................. 022/100,

(56)

022/101, 103, 104, 108, 199; 021/572,021/573; 42/51,71.01, 75.01, 75.02, 90,42/94. 134, 136, 139, 125,72, I 11; 124/67,124/66, 72, 74; 362/ll 0; 89/40.06, 41.1 9,89/37.04, 33.04, 191.01, 200--204See application file for complete search history.References Cited

U.S. PATENT DOCUMENTS7,797,873 B2* 9/2010 Gedngetal. ................... 42/1052008/0236017 A I * 10/2008 Fitzpatrick et al. ....... ....... . 421732010/0186582 AI* 7/2010 Juarez ........................ 891191.01

USOOD641824S

(10) Patent No.:(45) Date of Patent: US D641,824 S** Jul. 19, 2011

2011/0017788 AI* 1/2011 Haley et al. ................... 224/150* cited by examinerPrimary Examiner- T. Chase NelsonAssistant E-xaminer- Michael Pratt(74) Attorney, Agent, or Firm- Ladas & Parry LLP(57) CLAIMThe ornamental design for an assault rifle, as shown anddescribed.

DESCRIPTIONFIG. 1 is a perspective view from above to the right side andtoward the front end of the assault rifle which is the subject ofmy new design;FIG. 2 is a perspective view from above, to the left side andtoward the front end thereof;FIG. 3 is a perspective view from above, to the right side andtoward the rear end thereof;FIG. 4 is a perspective view from above, to the left side andtoward the rear end thereof;FIG. 5 is a right side elevational view thereof;FIG. 6 is a left side elevational view thereof;FIG. 7 is a top plan view thereof;FIG. 8 is a bottom plan view thereof;FIG. 9 is a front elevational view thereof; and,FIG. 10 is a rear elevational view thereof.

1 Claim, 10 Drawing Sheets


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U.S. Patent Jut 19,2011 Sheet 2 oflO US D641,824 S


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Vega Force Company MK16 Light Version inFDE (OUT OF STOCK)Wholesale/Dealers Only

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Model: VFC AEG MK16 FDEManufactured by: VFC

All Airsoft guns come standard with blaze orange tips required by Title 15 of the Code of Federal Regulations: (Commerce and Foreign Trade) part1150. Airsoft guns shown without blaze orange tips are for cosmetic purposes only. Removing the blaze orange tip will void all warranties.

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I TABLE OF CONTENTS

02 ABOUT ECH01USA 22 SOCOM 16 Fo r ordering information04 TABLE OF CONTENTS 23 M14 WOOD please contact the following

NEW FOR 2012 24 ADVANCED SNIPER RIFLE (ASRI distributors.06 ROBINSON ARMAMENT XCR FOE 25 M2807 ROBINSON ARMAMENT XCR MINI 26 ER-25K UNITED STATES08 PLATINUM EDITION M4 FOE 27 OHIO ORDNANCE WORKS M240B Jag Precision09 PLATINUM EDITION M16 28 M249 MK II 2223 Troy Avenue10 MODULATR TACTICAL 29 M249 PARA South El Monte, CA 91733

CARBINE [MTC) 1 30 BARRETT REC-7 [626) 448-987911 MODULATR TACTICAL 31 AK47 RIS www.jagprecision.com

CARBINE [MTC) 2 32 MINIGUN SHORT12 M28 33 MINIGUN LONG FRANCE13 GENERAL ASSAULT TOOL [GAT) Echo1 France14 TROY MRF SERIES 18 Avenue Du Docteur Jean

16 PLATINUM EDITION M4 83160 LaValette Du Var17 PLATINUM EDITION M4 RIS +33 [0)6 60 77 99 0818 STAG ARMS FULL METAL M4 www.echo1. fr19 STAG ARMS SERIES20 RED STAR LMG21 RED STAR SERIES

04 ECH01USA


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Echo1 E90Wholesale/Dealers Only

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Model Number: J P-32

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Inner Barrel Length: 247mm

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King Arms Phantom M203 MountWholesale/Dealers only
G&P M249 cartridge Pouch (100rds)Wholesale/Dealers only
Bravo scope x4 Magnified scopeWholesale/Dealers only

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#jag_tb {margin:O 0 15px 0;}#jag_dbl_tb {margin:13px 0 10px Spx;

}#jag_dbl_left {}

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#jag_banner {background:#OOOOOOheight:300px; none repeat scroll 0 0;

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1eft: 50%;m a r ~ i n - l e f t : - 4 5 0 p x ;pos1tion:absolute;right:O;top:124px;width:900px;

#jag_banner_images {display: inline;margin: Opx Opx Opx Opx;}#jag_banner_brands {display:inline;margin:Opx Opx Opx -4px;}#recentnewscopy {padding: 15px;color: #FFFFFF;font-size: 16px;letter-spacing: -1px;font-weight: 100;line-height: 22px;}a.newslink { Page 13


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Jag Precis1on News


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more info


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store[1]href="http://jagprecision.com/store/?p=566" title="Permalink to The Echo1 AirsoftM28 Now Available in Tan Exclusively from Jag Precision" rel="bookmark">The Echo1Airsoft M28 Now Available in Tan ExclusivelY, from Jag Precision


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store [1]3-9X40 OE Illuminated Red and Green Reticle " width="l50" height="l12" />
Bravo scope #1: 3-9X40 OE Illuminated Red and GreenReticle
Wholesale/Dealers only

Bravo lx30 Red and Green Dot
King Arms Ml6 120 Rounds Magazines Box set in OD-lOpcs
King Arms Ml6 120 Rounds Magazines Box set in DE-lOpcs


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EXHIBIT O

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