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National Products, Inc. v. Arkon Resources, Inc.

United States District Court, W.D. Washington

December 1, 2017

NATIONAL PRODUCTS INC., Plaintiff,
v.
ARKON RESOURCES, INC., Defendant.

          David K. Tellekson, Jeffrey A. Ware, Ewa M. Davison, Guinevere L. Jobson (admitted pro hac vice) Jessica M. Kaempf, Attorneys for Plaintiff National Products Inc.

          Marc A, Karish (admitted pro hac vice) A. Eric Bjorgum (admitted pro hac vice), James E. Breitenbucher Attorneys for Defendant Arkon Resources,

          AMENDED JOINT PRETRIAL ORDER JURY TRIAL DEMANDED

          JAMES P. DONOHUE Chief United States Magistrate Judge

         Pursuant to Local Civil Rule 16(h), Plaintiff National Products Inc. (“NPI”) and Defendant Arkon Resources, Inc. (“Arkon”) respectfully submit the following pretrial order.

         A. FEDERAL JURISDICTION

         This Court has original subject matter jurisdiction pursuant to 15 U.S.C. §§ 1114, 1121, and 1125, and 28 U.S.C §§ 1331 and 1338(a) and (b). This Court also has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(a) because these are so related to the federal claims in this action that they form part of the same case or controversy under Article III of the United States Constitution.

         B. CLAIMS AND AFFIRMATIVE DEFENSES[1]

         NPI states that it intends to pursue at trial the following claims:

1. Federal Trademark Infringement under 15 U.S.C. § 1114, including willful trademark infringement, entitling NPI to actual damages and defendant's profits, all of which should be trebled, as well as attorneys' fees and costs.[2]
2. Unfair business practices in violation of the Washington Consumer Protection Act (“CPA”), RCW 19.86 et seq., entitling NPI to its actual damages, which should be enhanced by an amount up to $25, 000, as well as attorneys' fees and costs.[3]

         Arkon states that it intends to pursue the following affirmative defenses at trial:

1. Defendant has not infringed any applicable trademarks or trade dress under federal or state law.
2. Plaintiff's U.S. Trademark Reg. No. 4, 254, 086 is invalid as functional.
3. Plaintiff's U.S. Trademark Reg. No. 4, 254, 086 is invalid as lacking secondary meaning.
4. Plaintiff's U.S. Trademark Reg. No. 4, 254, 086 is invalid as generic.[4]

         C. RELEVANT FACTS UPON WHICH THERE IS NO DISPUTE

         The following facts are admitted by the parties:

1. In 1992, NPI's Founder, President, and CEO, Jeffrey Carnevali, devised a mounting system with two rubber balls connected with interchangeable arms in a ball-and-socket mechanism, which he called “RAM Mounts.”
2. NPI has displayed, sold and promoted its RAM Mounts at hundreds of trade shows across the United States including the Consumer Electronics Show held annually in Las Vegas, Nevada.
3. On May 23, 2012, NPI filed a trademark application (serial no. 85-632, 977).
4. On December 4, 2012, the PTO granted NPI U.S. Trademark Registration No. 4, 254, 086.
5. NPI first became aware of the accused products at the Consumer Electronics Show in January 2014, when Arkon displayed exemplars of these products, which Arkon called “Robust Mounts, ” at its booth.
6. Arkon was incorporated in 1988.
7. Arkon sells a variety of mounting products, some of which ...

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