laerdal medical et. al. v. tellyes scientific et. al

8/13/2019 Laerdal Medical et. al. v. Tellyes Scientific et. al.

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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

Laerdal Medical Corp. and Laerdal Medical AS

Plaintiffs,

v.

Tellyes Scientific; Simulative LLC; and AlereUSA, LLC

Defendants.

Civil Action No. _________________

JURY TRIAL DEMANDED

COMPLAINT FOR PATENT INFRINGEMENT,

DECLARATORY AND INJUNCTIVE RELIEF

Laerdal Medical Corp. and Laerdal Medical AS, collectively referred to as

Plaintiffs or Laerdal demand a jury trial and complain against Tellyes Scientific Co., Ltd.

(Tellyes), Simulative LLC (Simulative) and Alere USA, LLC (a.k.a. Alere Simulations)

(Alere), collectively referred to as Defendants, as follows:

THE PARTIES

1. Plaintiff Laerdal Medical Corp. is a corporation organized under the laws of theState of New York, and having a place of business at 167 Myers Corners Rd., Wappingers Falls,

NY 12590.

2. Plaintiff Laerdal Medical Corp. is a subsidiary of Plaintiff Laerdal Medical AS, aNorway-based global company with offices worldwide, having a business address at 30 Tanke

Svilandsgte, P.O. Box 377, Stavanger, Norway N-4002.

3. Upon information and belief, Defendant Tellyes is a Chinese corporation, havingits corporate headquarters at 18 West Hai Tai Road, West 6

thBuilding, 3

rdfloor, Tianjin, China,


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Postcode 300384, and also conducting business at 88 Jian Guo Road, Chaoyand District, Bejing,

China, Postcode 100020.

4. Upon information and belief, Defendant Simulative, is a corporation organizedunder the laws of the State of Florida and having a place of business at 5104 N. Lockwood Ridge

Road, suite 102, Sarasota, FL 34234.

5. Upon information and belief, Defendant Alere, is an entity having a place ofbusiness at 6574 N. State Road 7, Suite 228, Coconut Creek, FL 33073.

6. Upon information and belief Defendants Simulative and Alere sell, offer to sell,distribute, market, test and/or import into the United States of America Defendant Tellyess

infringing products and devices.

JURISDICTION AND VENUE

7. This action arises under the patent laws of the United States of America, Title 35of the United States Code. This Court has subject matter jurisdiction of this action under 28

U.S.C. 1331, 1338(a) and (b), 15 U.S.C. 1121 (Lanham Act) and supplemental jurisdiction

under 28 U.S.C. 1367.

8. Upon information and belief, Defendant Tellyes does business and is committinginfringements in this judicial district. Defendant Tellyes is subject to personal jurisdiction in this

judicial district by making, using, advertising, marketing, testing, selling, offering to sell and

importing infringing products within this judicial district, either directly and/or through

Defendants Simulative and Alere.

9. Upon information and belief, Defendants Alere and Simulative each have regularand established places of business in this judicial district, and are each committing acts of

infringement within this judicial district.


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10. Personal jurisdiction over each of Defendants in this judicial district is thusproper.

11. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391, includingwithout limitation 28 U.S.C. 1391(c)(3), and 1400(b).

THE LAERDAL 674 PATENT

12. Laerdal repeats and incorporates herein the entirety of the allegations contained inthe foregoing paragraphs.

13. On March 26, 2013, U.S. Patent No. 8,403,674 (hereinafter referred to as theLaerdal674 Patent) was duly and legally issued to David Feygin and Chih-Hao Ho for an

invention entitled Vascular-Access Simulations System with Ergonomic Features. Laerdal is

the owner by assignment of all right, title and interest in the Laerdal 674 Patent in the United

States of America.

14. The Laerdal 674 Patent pertains to simulation devices and systems for allowingmedical professionals and students to practice vascular-access procedures without using human

subjects, but maintaining a closely realistic simulation of the actual vascular-access procedures

conducted on human beings. A copy of the Laerdal 674 Patent is attached hereto asEx. 1.

THE LAERDAL 787 PATENT

15. Laerdal repeats and incorporates herein the entirety of the allegations contained inthe foregoing paragraphs.

16. On October 20, 1998, U.S. Patent No. 5,823,787 (hereinafter referred to as theLaerdal787 Patent) was duly and legally issued to Rene M. Gonzalez and John J. Schaefer III

for an invention entitled Training Mannequin for Management of Normal and Abnormal


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Airways. Laerdal is the owner by assignment and/or an exclusive licensee of all right, title and

interest in the Laerdal 787 Patent in the United States of America.

17. The Laerdal 787 Patent pertains to simulation devices and systems for medicalprofessionals and students to practice advanced emergency airway (respiratory tract)

management that simulates both anatomically normal and abnormal or difficult airways that may

happen in real emergency conditions with human patients. A copy of the Laerdal 787 Patent is

attached hereto asEx. 2.

COUNT ONE INFRINGEMENT OF THE 674 PATENT

18. Laerdal repeats and incorporates herein the entirety of the allegations contained inthe above paragraphs.

19. Defendants Tellyes, Simulative and Alere have been and still are directlyinfringing the Laerdal 674 Patent by, among other things, using, advertising, marketing, testing,

selling, offering to sell and importing the Victor IV and/or other infringing products made and

distributed by Tellyes within the State of Florida and the United States of America, either

directly or through the actions of Defendants Simulative and Alere.

20. Among other things, Defendant Tellyes operates an English-language ecommercewebsite at http://en.tellyes.com. On its website, Defendant Tellyes offers to sell its Victor IV

and/or other infringing products to any person or entity in the United States of America and the

State of Florida through Defendant Alere, who is identified as Tellyess distributor in the United

States of America. Copies of selected printouts from the Defendant Tellyess website and

Defendant Aleres website are attached hereto asEx. 3.

21. On information and belief, Defendant Tellyes offers to sell its Victor IV and/orother infringing products to any person or entity in the United States of America and the State of


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Florida through Defendant Simulative.

22. Among other things, on August 8-9, 2013, Defendant Tellyes has marketed,imported, offered to sell and/or sold its infringing Victor IV and/or other infringing products at

the FIME 2013 exposition, which took place at the Miami Beach Convention Center, Florida.

23. On information and belief, in January of 2013, Defendant Tellyes has marketed,imported, offered to sell and/or sold its infringing Victor IV and/or other infringing products at

the IMSH 2013 exposition, which took place in Orlando, Florida.

24. Defendant Tellyes offers to support and maintain its infringing Victor IV and/orother infringing products sold, offered for sale or marketed in the United States of America

through the Internet and Customer Support services on the Defendant Tellyess website.

25. Defendants Simulative and Alere have been and still are directly infringing theLaerdal 674 Patent by, among other things, using, advertising, marketing, importing, testing,

selling and offering to sell the Victor IV and/or other infringing products made and/or distributed

by Defendant Tellyes in the State of Florida and the United States of America.

26. Laerdal alleges that the Tellyes Victor IV and other similar products of DefendantTellyes infringe at least claims 17, 18, 21 and 26 of the Laerdal 674 Patent. Laerdal believes

that discovery will reveal that Defendants are infringing additional claims of the Laerdal 674

Patent.

27. Laerdal has been damaged by Defendants infringement of the Laerdal 674Patent and will be irreparably harmed unless such infringing activities are enjoined by this Court.

COUNT TWO INFRINGEMENT OF THE 787 PATENT



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29. Defendants Tellyes, Simulative and Alere have been and still are directlyinfringing the Laerdal 787 Patent by, among other things, using, advertising, marketing, testing,

selling, offering to sell and importing Defendant Tellyess Victor ICU, Rescue Angel and/or

other infringing products made and distributed by Tellyes within the State of Florida and the

United States of America, either directly or through the actions of Defendants Simulative and

Alere.

30. Among other things, Defendant Tellyes operates an English-language ecommercewebsite at http://en.tellyes.com. On its website, Defendant Tellyes offers to sell its Victor ICU,

Rescue Angel and/or other infringing products to any person or entity in the United States of

America and the State of Florida through Defendant Alere, who is identified as Tellyess

distributor in the United States of America. Copies of selected printouts from Defendant

Tellyess website and Defendant Aleres website are attached hereto asEx. 3.

31. On information and belief, Defendant Tellyes offers to sell its Victor ICU, RescueAngel and/or other infringing products to any person or entity in the United States of America

and the State of Florida through Defendant Simulative.

32. On information and belief, on August 8-9, 2013, Defendant Tellyes has marketed,imported, offered to sell and/or sold its infringing Victor ICU, Rescue Angel and/or other

infringing products at the FIME 2013 exposition, which took place at the Miami Beach

Convention Center, Florida.

33. On information and belief, in January of 2013, Defendant Tellyes has marketed,imported, offered to sell and/or sold its infringing Victor ICU, Rescue Angel and/or other

infringing products at the IMSH 2013 exposition, which took place in Orlando, Florida.

34. Defendant Tellyes offers to support and maintain its infringing Victor ICU,


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Rescue Angel and/or other infringing products sold, offered for sale or marketed in the United

States of America through the Internet and Customer Support services on Defendant Tellyess

website.

35. Defendants Simulative and Alere have been and still are directly infringing theLaerdal 787 Patent by, among other things, using, advertising, marketing, importing, testing,

selling and offering to sell the Victor ICU, Rescue Angel and/or other infringing products made

and/or distributed by Defendant Tellyes in the State of Florida and the United States of America.

36. Laerdal alleges that Defendant Tellyess Victor ICU, Rescue Angel and othersimilar products infringe at least claim 1 of the Laerdal 787 Patent. Laerdal believes that

discovery will reveal that Defendants are infringing additional claims of the Laerdal 787 Patent.

37. Laerdal has been damaged by Defendants infringement of the Laerdal 787Patent and will be irreparably harmed unless such infringing activities are enjoined by this Court.

COUNT THREE - COPYRIGHT INFRINGEMENT


39. Laerdal created literature that is used to describe one or more products made byLaerdal (hereinafter the Laerdal Literature). The Laerdal Literature is unique and creative,

and entitled to copyright protection.

40. Among others, Laerdal Literature includes information, description andphotographs of Laerdals products on Laerdals website, product catalogs and product

description manuals.

41. The Laerdal Literature is protected by registered copyrights owned by Laerdal,


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including without limitation Copyright Registrations duly issued by the United States Copyright

Office and attached hereto asEx. 4.

42. The Copyright Registrations owned by Laerdal include without limitationcopyrights for the following: (a) photographs, text and images of the Laerdal Advanced Trauma

Modules (copyrights, selected portions of the deposit materials and Web pages are attached

hereto asEx. 4A); (b) photographs, text and images of the Laerdal Baby Stap manikin product

(copyright, selected portions of the deposit materials and images are attached hereto asEx. 4B);

(c) text and images in the Laerdal Product Catalogs for 2004 (copyright and selected portions of

the deposit materials are attached hereto asEx. 4C); (d) text and images in the Laerdal Product

Catalogs for 2000 (copyright and selected portions of the deposit materials are attached hereto as

Ex. 4D); (e) text and images in the Laerdal Multi-Venuous Arm Manual and text and images in

the prior version of the manual (copyrights and selected portions of the deposit materials are

attached hereto asEx. 4E); (f) text and images in the Laerdal Nursing Kelly Manual and text and

images in the prior version of the manual (copyrights and selected portions of the deposit

materials are attached hereto asEx. 4F); and (g) text and images in the Laerdal Nursing Anne

Manual and text and images in the prior version of the manual (copyrights and selected portions

of the deposit materials are attached hereto asEx. 4G).

43. Upon information and belief, Defendant Tellyes had access to the LaerdalLiterature, and copied the Laerdal Literature to produce its own literature, for Defendant

Tellyess products. Copies of selected pages of some of the infringing Tellyess product

literature (Tellyes Literature) are attached hereto asEx. 5.

44. Defendant Tellyes makes, imports, distributes and/or sells unauthorized copies ofthe Laerdal Literature, or parts thereof, as the Tellyes Literature in the United States of America


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and the State of Florida, all in violation of Laerdals valuable copyright rights.

45. The Tellyes Literature used for Defendant Tellyess own products is anunauthorized and unlicensed reproduction of Laerdals Literature.

46. Laerdal has never authorized or otherwise permitted, either directly or indirectly,expressly or by implication, Defendant Tellyes to make reproductions, copies, make derivative

works, or utilize in any other way the copyrights covering Laerdals Literature with any of

Defendant Tellyess products that are sold, marketed, distributed and imported into the United

States of America, either directly or indirectly by Defendant Tellyes.

47. Laerdals copyrights on and for the Laerdal Literature comprise in whole or inpart, wholly original works of authorship that are copyrightable subject matter under the

copyright laws of the United States of America, 17 U.S.C. 101, et seq. Laerdal has complied

in all respects with the laws governing copyright and has secured the rights and privileges in, to

the copyrightable subject matter for the Laerdal Literature.

48. Tellyess infringing activities are done in violation of Laerdals exclusive rightsin the copyright(s) covering the Laerdal Literature.

49. On information and belief, Defendants Tellyes, Alere, and Simulative havereproduced, imported, sold, made derivative works, offered for sale and/or distributed, either

directly or indirectly, the Tellyes Literature in violation of Laerdals exclusive rights and

copyrights, including without limitation rights under 17 U.S.C. 106.

50. Upon information and belief, as a direct and proximate result of the DefendantTellyess wrongful and infringing conduct, Defendant Tellyes has realized and continues to

realize profits and other benefits rightfully belonging to Laerdal.


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51. As a result of Defendant Tellyess unlawful conduct, Laerdal has suffered andwill continue to suffer damages.

52. Defendant Tellyess infringing activities, including the continued, unauthorizedreproduction of Laerdals copyrights, and sale, marketing and distribution of infringing Tellyes

Literature are causing and will cause Laerdal irreparable harm.

COUNT FOUR TRADE DRESS INFRINGEMENT

(Lanham Act, 15 U.S.C. 1125)


54. Plaintiff Laerdal Medical Corp. is a U.S. subsidiary of Plaintiff Laerdal MedicalAS, a major worldwide manufacturer of the medical training products and manikins, based in

Stavanger Norway. Both Plaintiffs use the name Laerdal for their products and affiliated

companies. Laerdal and its other related Laerdal-affiliated entities are among the oldest and

most well-recognized manufacturers and distributors of the medical training products and

manikins worldwide, including the United States of America.

55. Laerdal spends millions of dollars on advertising and marketing of its medicalproducts and manikins, and its products are well recognized by the relevant public and medical

community for their distinctive features, realistic simulation and aesthetic quality.

A. Trade Dress for the Laerdal SimMan 3G Manikins56. Among other medical training products and manikins, Laerdal developed a

creative original design and distinct aesthetic look for use with its SimMan 3G products, a line

of realistic patient simulator manikins for emergency and ICU conditions. This product line is

marketed on Laerdals Web page at www.laerdal.com/doc/85/SimMan-3G . An image showing this


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product is attached hereto asEx. 6.

57. Through Laerdals advertising, marketing, and sales efforts, the LaerdalSimMan 3G line of manikin products has become well known to relevant consumer audiences

as an indication that it originates exclusively from Laerdal and/or its affiliated entities.

58. It is used in the U.S. commerce and it utilizes non-functional trade dress, which isinherently distinctive and/or has acquired secondary meaning in the trade and among the relevant

consuming public as a symbol identifying Laerdal and/or its affiliated entities as the source.

59. The trade dress for the Laerdal SimMan 3G line of manikin products ischaracterized by and includes, without limitation, the distinctive body type and size of the

manikin, choice of clothing, facial features and positioning of the head, mouth and body parts,

and the type of plastic or resilient materials used for the skin imitation.

60. Defendant Tellyes is unfairly competing with Laerdal by adopting an infringingtrade dress from Laerdals SimMan 3G line of manikin products to Defendant Tellyess

competing line of full body manikins, which Tellyes is believed to have marketed and/or sold,

either directly or through other Defendants, and continues to sell and offer to sell in the United

States of America under the name Victor ICU Adult manikins. A copy of the Tellyes product

information and price quote for the Tellyes Victor ICU Adult manikins is attached hereto asEx.

6.

61.

Upon information and belief, the Tellyes Victor ICU Adult manikins are made

available by Tellyes in the United States of America either directly on Tellyess website at

http://en.tellyes.com/product/4fa4934b025bf.html and/or through other Defendants.


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B. Trade Dress for the Laerdal Mega Code Kelly Full-Body Manikins

62. Among other medical training products and manikins, Laerdal developed acreative original design and distinct aesthetic look for use with its Mega Code Kelly products, a

line of full-body manikins for the practice of advanced, difficult and obstructed airway medical

situations and IV therapy. This product line is marketed on Laerdals website at

www.laerdal.com/us/doc/199/MegaCode-Kelly. An image showing this product is attached

hereto asEx. 7.

63. Through Laerdals advertising, marketing, and sales efforts, the Laerdal MegaCode Kelly line of manikin products has become well known to relevant consumer audiences as

an indication that it originates exclusively from Laerdal and/or its affiliated entities.

64. It is used in the U.S. commerce and utilizes non-functional trade dress, which isinherently distinctive and/or has acquired secondary meaning in the trade, and among the

relevant consuming public, as a symbol identifying Laerdal and/or its affiliated entities as the

source.

65. The trade dress for the Laerdal Mega Code Kelly line of manikin products ischaracterized by and includes, without limitation, the distinctive body type and size of the

manikin, choice of clothing, facial features and positioning of the head, mouth and body parts,

and the type of plastic or resilient materials used for the skin imitation.

66.

Defendant Tellyes is unfairly competing with Laerdal by adopting an infringing

trade dress from Laerdals Mega Code Kelly line of manikin products to Defendant Tellyess

competing line of full body manikins, which Tellyes is believed to have marketed and/or sold,



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States of America under the name Tellyes Rescue Angel. A copy of the Tellyes product

information and a price quote for the Tellyes Rescue Angel products are attached hereto asEx. 7.

67. Upon information and belief, the Tellyes Rescue Angel products are madeavailable by Tellyes in the United States of America either directly on Tellyess website at

http://en.tellyes.com/product/4fa101d908543.html and/or through other Defendants.C. Trade Dress for the Laerdal Trauma Modules

68. Laerdal also developed a creative original design and distinct aesthetic look for acollection of advanced trauma body part modules, for use with Laerdals manikins. Laerdals

Trauma Modules provide the required realism and imitation of various traumas to different body

parts that a doctor or nurse might encounter in the emergency situation. These Trauma Modules

are marketed on Laerdals website as Advanced Trauma Modules at

http://www.laerdal.com/us/doc/787/Advanced-Trauma-Modules, Trauma Module Set at

http://www.laerdal.com/us/item/276-10001 and MegaCode Trauma Module Set at

http://www.laerdal.com/us/item/381500. The images showing these products are attached hereto

asEx. 9.

69. Through Laerdals advertising, marketing, and sales efforts, the LaerdalAdvanced Trauma Modules, Trauma Module Set and MegaCode Trauma Module Set products

have become well known to relevant consumer audiences as an indication that they originate

exclusively from Laerdal and/or its affiliated entities.

70. It is used in the U.S. commerce and utilizes non-functional trade dress, which isinherently distinctive and/or has acquired secondary meaning in the trade and among the relevant

consuming public as a symbol identifying Laerdal and/or its affiliated entities as the source of its


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products.

71. The trade dress for Laerdals Trauma Module products discussed above ischaracterized by and includes, without limitation, the distinctive shape of the body parts, color

and paint used on different body parts, color combination for various parts, side and back cut out

lines, selection, placement and location of various artistic representations of different trauma

conditions on different body types and type of plastic or resilient materials used for the modules.

72. Defendant Tellyes is unfairly competing with Laerdal by adopting an infringingtrade dress from Laerdals Advanced Trauma Modules, Trauma Module Set and MegaCode

Trauma Module Set products to Defendant Tellyess competing line of its own trauma modules,

which Tellyes is believed to have marketed and/or sold, either directly or through other

Defendants, and continues to sell and offer to sell in the United States of America under the

name Advanced Trauma Modules. A copy of the Tellyes product information and a price

quote for the Tellyes Advanced Trauma Modules are attached hereto asEx. 9.

73. Upon information and belief, the Tellyes Advanced Trauma Modules are madeavailable by Tellyes in the United States of America either directly on Tellyess website at

http://en.tellyes.com/product/4fc3479b4d93f.html and/or through other Defendants.

D. Trade Dress for the Laerdal Infant Airway Management Trainer Products

74. Furthermore, Laerdal developed a creative original design and distinct aestheticlook for use with Laerdal Infant Airway Management Trainer products, a line of realistic 3-

month-old infant manikins for teaching and practicing basic and advanced airway management

skills. This product line is marketed on Laerdals website at

http://www.laerdal.com/us/doc/93/Laerdal-Infant-Airway-Management-Trainer. An image


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showing this product is attached hereto asEx. 8.

75. Through Laerdals advertising, marketing, and sales efforts, the Laerdal InfantAirway Management Trainer line of products has become well known to relevant consumer

audiences as an indication that it originates exclusively from Laerdal and/or its affiliated entities.

76. It is used in the U.S. commerce and utilizes non-functional trade dress, which isinherently distinctive and/or has acquired secondary meaning in the trade and among the relevant

consuming public as a symbol identifying Laerdal and/or its affiliated entities as the source of its

products.

77. The trade dress for the Laerdal Infant Airway Management Trainer products ischaracterized by and includes, without limitation, the distinctive shape and position of the head

and the back board, the facial features of the manikin, mouth opening, size and arbitrary age

associated with the manikin, the types of accessories for the use with the manikin, and the type

of plastic or resilient materials used for the skin and tissue imitation.

78. Defendant Tellyes is unfairly competing with Laerdal by adopting an infringingtrade dress from Laerdal Infant Airway Management Trainer products to Defendant Tellyess

competing line of Tellyes manikins, which Tellyes is believed to have marketed and/or sold,


States of America under the name Neonate Airway Management Trainer. A copy of the

Tellyes product information and a price quote for Tellyess Neonate Airway Management

Trainer products are attached hereto asEx. 8.

79. Upon information and belief, the Tellyes Neonate Airway Management Trainerproducts are made available by Tellyes in the United States of America either directly on


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Tellyess website at http://en.tellyes.com/product/4fa797ed66cc3.htmland/or through other

Defendants.

80. Defendant Tellyess unauthorized use, marketing and distribution of Laerdalstrade dress that was designed and developed by Laerdal for Laerdals (A) SimMan 3G

Manikins; (B) Mega Code Kelly Full-Body Manikins; (C) Trauma Modules; and (D) Infant

Airway Management Trainer Products, as part of, or in connection with, Tellyess own above-

referenced products and other similar Tellyes products constitutes trade dress infringement under

the Lanham Act, 15 U.S.C. 1125.


82. The intent and result of Defendants unlawful conduct has been a palming off ofLaerdals manikin products, and misleading the relevant public that similar looking Tellyes

products and associated services are emanating from or being endorsed by Laerdal or its

affiliates, causing confusion, mistake, and deception among the public as to the source and origin

of those products and associated services.

83. Upon information and belief, as a direct and proximate result of DefendantTellyess unlawful and infringing conduct, Defendant Tellyes has realized and continues to


84.

The foregoing acts of Defendants are intended to cause, have caused, and are

likely to cause confusion, mistake, deception among consumers, the public, and the trade as to

the source of the infringing products, or as to a possible affiliation, connection, or association

between Laerdal and the infringing products.


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85. Defendants Tellyess unlawful conduct has been willful, with full knowledgeand/or reckless disregard of Laerdals trade dress rights. Laerdal believes that Defendants will

continue such willful and intentional conduct unless enjoined by this Court.

86. Defendant Tellyess infringing activities, including the continued, unauthorizedreproduction of Laerdals trade dress in connection with the sale, marketing and distribution of

Defendant Tellyess products are causing and will cause Laerdal irreparable harm, including

without limitation significant harm to Laerdals reputation and goodwill, which Laerdal has

established through years of effort and expense.

87. Defendant Tellyess infringing activities constitute false designations of origin,false and misleading descriptions, and false and misleading representations that are likely to

cause confusion, mistake, and deception. By using a confusingly similar trade dress for Tellyess

above-referenced products, Defendants have misrepresented the nature, origin, characteristics,

and quality of the Tellyes products, in violation of the Lanham Act (15 U.S.C. 1125(a)).

88. In addition to the irreparable harm suffered by reason of Defendants wrongfulconduct, Laerdal has suffered and will continue to suffer damages in an amount to be proven at

trial.

COUNT FIVE TRADE DRESS INFRINGEMENT AND UNFAIR COMPETITION

(Florida State Law)


90. Defendant Tellyess unauthorized use, marketing and distribution of Laerdalstrade dress that was designed and developed by Laerdal for Laerdals (A) SimMan 3G

Manikins; (B) Mega Code Kelly Full-Body Manikins; (C) Trauma Modules; and (D) Infant


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Airway Management Trainer Products, as part of, or in connection with, Tellyess own above-

referenced products and other similar Tellyes products constitutes trade dress infringement under

the Florida common law and state law governing trade dress protection and unfair competition.


92. The intent and result of Defendants unlawful conduct has been a palming off ofLaerdals manikin products, and misleading the relevant public that similar looking Tellyes

products and associated services are emanating from or being endorsed by Laerdal or its

affiliates, causing confusion, mistake, and deception among the public as to the source and origin

of those products and associated services.

93. Upon information and belief, as a direct and proximate result of DefendantTellyess unlawful and infringing conduct, Defendant Tellyes has realized and continues to


94. The foregoing acts of Defendants are intended to cause, have caused, and arelikely to cause confusion, mistake, deception among consumers, the public, and the trade as to

the source of the infringing products, or as to a possible affiliation, connection, or association

between Laerdal and the infringing products.

95. Defendants Tellyess unlawful conduct has been willful, with full knowledgeand/or reckless disregard of Laerdals trade dress rights. Laerdal believes that Defendants will

continue such willful and intentional conduct unless enjoined by this Court.

96. Defendant Tellyess infringing activities, including the continued, unauthorizedreproduction of Laerdals trade dress in connection with the sale, marketing and distribution of


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Defendant Tellyess products are causing and will cause Laerdal irreparable harm, including

without limitation significant harm to Laerdals reputation and goodwill, which Laerdal has

established through years of effort and expense.

97. Defendant Tellyess infringing activities constitute false designations of origin,false and misleading descriptions, and false and misleading representations that are likely to

cause confusion, mistake, and deception. By using a confusingly similar trade dress for the

Tellyess above-referenced products, Defendants have misrepresented the nature, origin,

characteristics, and quality of the Tellyes products, in violation of the Florida common law and

state law governing trade dress and unfair competition.

98. In addition to the irreparable harm suffered by reason of Defendants wrongfulconduct, Laerdal has suffered and will continue to suffer damages in an amount to be proven at

trial.

PRAYER FOR RELIEF

WHEREFORE, Laerdal prays for judgment against Defendants on all the counts and

for the following relief:

A. Declaration that the Laerdal 674 Patent, including but not limited to claims 17,

18, 21 and 26 of the Laerdal 674 Patent, is valid and enforceable;

B. Declaration that Defendants have infringed and are infringing the Laerdal 674

Patent, including, but not limited to, claims 17, 18, 21 and 26;

C. Declaration that the Laerdal 787 Patent is valid and enforceable;

D. Declaration that Defendants have infringed and are infringing the Laerdal 787

Patent, including, but not limited to, claim 1;

E. Declaration that Defendants have infringed and are infringing Laerdals trade


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dress developed in connection with Laerdals SimMan 3G Manikins, Mega Code Kelly Full-

Body Manikins, Trauma Modules and Infant Airway Management Trainer Products;

F. An injunction against Defendants, each of their officers, agents, servants,

employees, and attorneys, all parent, subsidiary and affiliated entities, their assigns and

successors in interest, and those persons acting in active concert or participation with them,

including distributors and customers, enjoining them from continuing acts of infringement of the

Laerdal 674 Patent, Laerdal 787 Patent and Laerdals trade dress;

G. An accounting for damages under 35 U.S.C. 284 from each of the Defendants

for their respective infringement of the Laerdal 674 and Laerdal 787 Patents, and the award of

damages ascertained against each of the Defendants in favor of Laerdal, together with interest, as

provided by law;

H. An accounting for damages under Section 35 of the Lanham Act and Florida

common law from each of the Defendants, trebled as provided by law and 15 U.S.C. 1117, in

connection with trade dress infringement and unfair competition;

I. A preliminary and permanent injunction against Defendants, each of their

officers, agents, servants, employees, and attorneys, all parent, subsidiary and affiliated entities,

their assigns and successors in interest, and those persons acting in active concert or participation

with them, including distributors and customers, directing them as follows:

(i) enjoining from making unauthorized reproductions of the Laerdal Literature;

(ii) impounding any copies of the Tellyes Literature, pursuant to 17 U.S.C. 503;

(iii) enjoining from using Laerdals trade dress in connection with Tellyess

infringing products; and

(iv) impounding the Tellyes products that infringe Laerdals trade dress.


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J. Awarding Laerdal its actual and/or statutory damages, and Tellyess profits in an

amount to be determined at trial.

K. Award of Laerdals costs and expenses, including reasonable attorney fees; and

L. Such other and further relief as this Court may deem proper, just and equitable.

DEMAND FOR JURY TRIAL

Laerdal demands a trial by jury of all issues properly triable by jury in this action.

Dated: November 15, 2013 Respectfully Submitted,

/s/ Joseph W. Bain TRIAL COUNSEL

Joseph W. Bain (Florida Bar No. 860360)Novak Druce Connolly Bove + Quigg LLP

525 Okeechobee Blvd., 15th

Floor

West Palm Beach, FL 33401Phone: (561) 847-7800Fax: (561) 847-7801

[email protected]

Attorney for Defendants

Of Counsel

Jeffrey I. Kaplan (JK 4706)

Daniel Basov (DB 0077)

KAPLAN BREYER SCHWARZ & OTTESEN, LLP

100 Commons Way, Suite 250

Holmdel, NJ 07733

732-578-0103 x231 (voice)732-718-0857 (mobile)

732-578-0104 (fax)

emails: [email protected]@kbsolaw.com

Attorneys for Plaintiffs Laerdal Medical

Corp. and Laerdal Medical AS

laerdal medical et. al. v. tellyes scientific et. al

Documents