Case 1:15-cv-00159 Document 1 Filed 01/22/15 USDC Colorado Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No.

KWIK TEK INC., a Colorado corporation,
Plaintiff,
v.
NASH MANUFACTURING INC., a Texas corporation,
Defendant.

COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff KWIK TEK INC. (Kwik Tek) complains of Defendant NASH

MANUFACTURING INC. (DEFENDANT) and alleges as follows:
JURISDICTION
1.

This is an action for patent infringement arising under the patent laws of the

United States of America, Title 35, United States Code, and in particular, 35 U.S.C. 271, et
seq. Jurisdiction is based on 28 U.S.C. 1338(a). The patent infringement alleged has been and
is now being carried out throughout the United States and on information and belief within the
District of Colorado as well.
2.

This is also an action for preliminary and permanent injunctive relief and

monetary damages under the Trademark Act of 1946, as amended, 15 U.S.C. 1051, et seq.
{hereinafter the Trademark Act], the Colorado Consumer Protection Act, Colo.Rev.Stat. 61-102 et seq., and common law. Jurisdiction of this Court is conferred by 15 U.S.C. 1116,
1121 and 1125(a) and 28 U.S.C. 1331 and 1338.

Case 1:15-cv-00159 Document 1 Filed 01/22/15 USDC Colorado Page 2 of 13

THE PATENT-IN-SUIT
3.

The patent-in-suit is United States Design Patent No. D720,030 which is referred

to herein as the 030 Design Patent. The 030 Design Patent was duly and legally issued by
the U. S. Patent and Trademark Office (USPTO) on December 23, 2014 listing Leroy L.
Peterson (Peterson) as the inventor and a true and accurate copy of the 030 Design Patent as
issued by the USPTO on said date is attached hereto as Exhibit A.
4.

In February of 2009, inventor Peterson assigned his entire right, title and interest

in and to U.S. patent application Serial No. 12/180,596 (the 596 application) to Sportsstuff, Inc.
In March of 2010, plaintiff Kwik Tek acquired the 596 application from Sportsstuff, Inc. On
May 30, 2014, Kwik Tek filed a design patent application as a continuation of the 596
application and on December 23, 2014 the 030 Design Patent issued from this design patent
application.
5.

By virtue of the aforesaid, Kwik Tek has the right to sue for infringement of the

030 Design Patent.

6.

The 030 Design Patent is entitled Low Drag Aquatic Towing System and

covers a novel ornamental design for a low drag aquatic towing system which connects a
towable such as a tube to a power boat for towing the tube and is used in the water sport
commonly known as tubing.
THE PARTIES
7.

Plaintiff Kwik Tek is a corporation organized under the laws of the State of

Colorado with an established place of business at 12000 E. 45th Ave., Unit 104, Denver,
Colorado 80239.
2

Case 1:15-cv-00159 Document 1 Filed 01/22/15 USDC Colorado Page 3 of 13

8.

On information and belief, Defendant NASH MANUFACTURING INC.,

(DEFENDANT) is a corporation organized under the laws of the State of Texas which does
business under the name NASH SPORTS at 315 West Ripy Street, Fort Worth, Texas 76110.
Upon information and belief, DEFENDANT is currently doing business in Colorado, through,
among other things, its distribution and sale of water sports products including the alleged
infringing product to retailers and consumers in Colorado directly and through its web site
nashmfg.com.
BACKGROUND
9.

Plaintiff Kwik Tek has expended considerable money obtaining the 030 Design

Patent which as indicated above issued from the 596 patent application. In addition, Kwik Tek
has expended considerable time, effort and money commercializing its low drag aquatic towing
system product which is covered by the 030 Design Patent and sold under the marks
BOOSTER, SPORTSSTUFF BOOSTER BALL (BOOSTER BALL) and AIRHEAD BOB
(BOB). (See Exhibit B) Kwik Teks commercialization efforts have included the promotion of
its BOOSTER BALL and BOB products in its annual Buyers Guide and at trade shows every
year since 2010 and 2012, respectively. These trade shows include the Surf Expo in Orlando,
Florida; the Lorenz and Jones Show in Altoona, Iowa; the Land N Sea Show in Las Vegas; and
the Donovan Marine Show in New Orleans, LA.
10.

Kwik Tek has also marked its BOOSTER BALL and BOB products patent

pending since 2010 and 2012, respectively.

11.

On information and belief, DEFENDANT NASH has also had booths of its own

at these trade shows and undoubtedly has seen Kwik Teks BOOSTER BALL and BOB products
at these shows and noticed the patent pending markings on the products. Notwithstanding this
3

Case 1:15-cv-00159 Document 1 Filed 01/22/15 USDC Colorado Page 4 of 13

knowledge, DEFENDANT NASH introduced its infringing Arsenal Power Ball product
(ACCUSED PRODUCT) (see Exhibit C) in 2011 in complete disregard of Kwik Teks rights.
12.

Kwik Teks BOOSTER BALL and BOB products have also been marked with the

proper patent notice in accordance with 35 U.S.C. 287 since it issued in 2014. Such marking
constitutes constructive notice to DEFENDANT of the '030 Design Patent.
13.

In addition, in an attempt to resolve this infringement matter with DEFENDANT

without entering into litigation, in early January, 2015 Kwik Teks president Aaron Kramer
advised Defendants president Keith Parten that Defendants Arsenal Power Ball product
(ACCUSED PRODUCT) infringes the 030 Design Patent. After a few emails were exchanged
Mr. Parten arrogantly responded to Mr. Kramer by email as follows: We do not infringe in any
way. If you want to call and discuss with my attorney the cost of the conversation will be
yours. (See Exhibit D)
14.

DEFENDANTs sale and/or offer to sell its Arsenal Power Ball product

(ACCUSED PRODUCT) infringes the 030 Design Patent and induces infringement of the 030
Design Patent as well.
15.

On information and belief, DEFENDANT manufactures its ACCUSED

PRODUCT in China and imports the said ACCUSED PRODUCT into the United States from
China, the importation of which also infringes the 030 Design Patent and induces infringement
of the 030 Design Patent.
16.

In addition, on information and belief, DEFENDANT continues to offer to sell

and/or sell and/or import the ACCUSED PRODUCT in the United States notwithstanding
having been advised that the ACCUSED PRODUCT infringes the '030 Design Patent. Such
conduct of DEFENDANT with knowledge of the 030 Design Patent constitutes a willful and
4

Case 1:15-cv-00159 Document 1 Filed 01/22/15 USDC Colorado Page 5 of 13

wanton disregard of Kwik Teks rights. Such conduct also constitutes willful and wanton
infringement, entitling Kwik Tek to increased damages under 35 U.S.C. 284. Further, this is
an exceptional case entitling Kwik Tek to recover its reasonable attorneys' fees under 35 U.S.C.
285.
17.

In addition, Kwik Tek has recently discovered that DEFENDANT has been

advertising and promoting its Arsenal Power Ball product as a Booster Ball (See Ex. C) which is
in violation of Kwik Teks rights in the marks Booster Ball and Booster. This conduct by
DEFENDANT is an obvious attempt to divert sales from Kwik Tek and palm off of the goodwill
Kwik Tek has generated through its use of the Booster Ball and Booster marks on its BOOSTER
BALL and BOB products. On information and belief, Defendants use of the Booster Ball and
Booster marks has also caused and is likely to cause confusion, mistake, and deception among
consumers. Such conduct constitutes unfair competition pursuant to 15 U.S.C. 1125(a).
18.

To protect its rights in the Booster mark, Kwik Tek has filed a trademark

application with the USPTO to register its Booster mark. (See Exhibit E)
19.

All conditions precedent to the bringing of this action have been performed or

have occurred.
FIRST CLAIM FOR RELIEF
Direct Patent Infringement by Defendant
35 U.S.C. 271(a)
20.

Kwik Tek incorporates the allegations of paragraphs 1 through 19 by reference,

the same as if fully set forth herein.

21.

35 U.S.C. 271(a) states that:

Whoever without authority makes,
uses, offers to sell or sells any
patented invention, within the United
5

Case 1:15-cv-00159 Document 1 Filed 01/22/15 USDC Colorado Page 6 of 13

States or imports into the United

States any patented invention during
the term of the patent therefor,
infringes the patent.
22.

By its unauthorized manufacture, use, offer to sell, sale or importation of the

ACCUSED PRODUCT, DEFENDANT has directly infringed, and on information and belief
continues to infringe, the '030 Design Patent and has thereby damaged Kwik Tek.
23.

DEFENDANT has had knowledge of the '030 Design Patent for some time now

and either knew or should have known that its sale of the ACCUSED PRODUCT infringed the
'030 Design Patent, and induced others to infringe the '030 Design Patent. DEFENDANT has
therefore acted willfully and wantonly in disregard of Kwik Tek' rights. Such conduct
constitutes willful and wanton infringement, and Kwik Tek is thereby entitled to increased
damages under 35 U.S.C. 284. Further, this is an exceptional case entitling Kwik Tek to
recover its reasonable attorneys' fees under 35 U.S.C. 285.
24.

Kwik Tek has been and will continue to be severely damaged by DEFENDANTs

unlawful infringement. Unless such infringement is abated and enjoined by this Court, Kwik
Tek will suffer irreparable damage.

SECOND CLAIM FOR RELIEF

Inducing Infringement by Defendant
35 U.S.C. 271(b)
25.

Kwik Tek incorporates the allegations of paragraphs 1 through 24 by reference,

the same as if fully set forth herein.

26.

35 U.S.C. 271(b) states that:

Whoever actively induces
infringement of a patent
shall be liable as an infringer.
6

Case 1:15-cv-00159 Document 1 Filed 01/22/15 USDC Colorado Page 7 of 13

27.

By its unauthorized sale of the ACCUSED PRODUCT, DEFENDANT, with full

knowledge of the '030 Design Patent, has induced, encouraged, aided, and abetted others to
infringe the '030 Design Patent and has thereby induced infringement of the '030 Design Patent,
all to the damage of Kwik Tek.
28.

Upon information and belief, DEFENDANT has induced infringement willfully

and wantonly and with full knowledge of the harm to Kwik Tek and Kwik Tek' rights; and
therefore Kwik Tek is entitled to increased damages under 35 U.S.C. 284. In addition, this is
an exceptional case entitling Kwik Tek to recover its attorneys' fees under 35 U.S.C. 285.
29.

Kwik Tek has been and will continue to be severely damaged by DEFENDANTs

unlawful infringement. Unless such infringement is abated and enjoined by this Court, Kwik
Tek will suffer irreparable damage.

THIRD CLAIM FOR RELIEF

Unfair Competition under Lanham Act, 15 U.S.C. 1125(a) and
Deceptive Trade Practices, Colorado Consumer Protection Act, Colo.Rev.Stats. 6-1-105
30.

Kwik Tek incorporates the allegations of paragraphs 1 through 29 by reference,

the same as if fully set forth herein.

31.

DEFENDANTS use of Kwik Teks Booster Ball and Booster marks to promote,

market, or sell its Arsenal Power Ball product in direct competition with Kwik Teks products
constitutes unfair competition pursuant to 15 U.S.C. 1125(a).
32.

DEFENDANTS use of the Booster Ball and Booster marks has undoubtedly

caused and is likely to cause confusion, mistake, and deception among consumers.
33.

DEFENDANT, by its use of Booster Ball, as aforesaid, has made misleading

representations of fact and/or has made false designations of origin, which are likely to cause
7

Case 1:15-cv-00159 Document 1 Filed 01/22/15 USDC Colorado Page 8 of 13

confusion, mistake, or to deceive, as to the affiliation, connection, and/or association of

DEFENDANT, its business and/or product with Kwik Tek, its business, and its BOOSTER
BALL and BOB products, and/or as to the origin, sponsorship, and/or approval of
DEFENDANTS business and product.
34.

DEFENDANTS advertising and promotion of its Arsenal Power Ball product as

a Booster Ball as aforesaid which is confusingly similar to Kwik Teks Booster Ball and
Booster marks misrepresents the nature, characteristics and/or qualities of DEFENDANTS
product and business.
35.

DEFENDANT, by its use of Booster Ball as aforesaid, which is a colorable

imitation of Kwik Teks Booster Ball and Booster marks, has passed off its business, and
product as those of another, to wit, Kwik Teks business and BOOSTER BALL and BOB
products.
36.

On information and belief, the acts of DEFENDANT as aforesaid in making false

and misleading representation and designations, and passing off their product as that of another,
are undertaken knowingly by DEFENDANT, and with the intent to trade off of Kwik Tek, its
goodwill, representation, advertising and/or BOOSTER BALL and BOB products.
37.

By reason of their acts as aforesaid, DEFENDANT has violated Section 43(a) of

the Trademark Act, 15 U.S.C. 1125(a), and has committed unfair and deceptive trade practices,
in violation of the Colorado Consumer Protection Act, Colo.Rev.Stats. 6-1-105.
38.

Kwik Tek has and will continue to suffer irreparable harm and damage as a result

of the false and misleading representation and designations, and deceptive and unlawful trade
practices, of DEFENDANT, in an amount not as yet ascertainable, thereby entitling Kwik Tek to
recover its actual damages and costs, as well as DEFENDANTs profits, pursuant to 15 U.S.C.
8

Case 1:15-cv-00159 Document 1 Filed 01/22/15 USDC Colorado Page 9 of 13

1117(a), and entitling Kwik Tek to recover up to treble its actual damages, and its costs and
attorney fees, pursuant to Colo.Rev.Stat. 6-1-113.
39.

The false representations, designations and deceptive trade practices of

defendants, as aforesaid, are willful, wanton and without any claim of right, thereby entitling
Kwik Tek to treble the amount of damages suffered, and render this an exceptional case entitling
Kwik Tek to recover his attorney fees, pursuant to 15 U.S.C. 1117.
40.

On information and belief, DEFENDANT will continue its false and misleading

representations and designations and unfair and deceptive acts, as aforesaid, unless enjoined by
this Court from so doing.

WHEREFORE, Kwik Tek prays for judgment against DEFENDANT and in favor of
Kwik Tek ordering, adjudging and declaring that:
1.

Jurisdiction is present and venue is proper;

2.

The 030 Design Patent is good and valid in law;

3.

DEFENDANT is liable for infringement of the '030 Design Patent;

4.

An accounting be had to determine the damages adequate to compensate Kwik

Tek for the aforesaid infringement and that judgment in favor of Kwik Tek be thereupon entered
against DEFENDANT, together with prejudgment interest;
5.

The acts of infringement of DEFENDANT have been deliberate, willful, and

wanton entitling Kwik Tek pursuant to 35 U.S.C. 284 to increased damages of three times the
amount found or assessed;
6.

A preliminary and permanent injunction be issued enjoining DEFENDANT, its

privies, and those in active consort therewith from further acts of infringement of the 030
9

Case 1:15-cv-00159 Document 1 Filed 01/22/15 USDC Colorado Page 10 of 13

Design Patent and from aiding, abetting, or inducing or in any way contributing to the
infringement of said patent;
7.

The instant case is an exceptional case and that Kwik Tek be awarded its costs,

expert witness fees, and reasonable attorneys' fees pursuant to 35 U.S.C. 285;
8.

DEFENDANTs entire inventory of ACCUSED PRODUCT be delivered for

destruction including the Arsenal Power Ball product and all packaging for the product as well
as any reproductions, counterfeit copies, or colorable imitations thereof including all plates,
molds, dies, matrices and other means of making the infringing product and its packaging as
described herein;
9.

DEFENDANT is liable for false designation and representation of origin in

violation of 15 U.S.C. 1125(a); and for unfair and deceptive trade practices, in violation of
Colo.Rev.Stat. 6-1-105.
10.

An injunction issue enjoining DEFENDANT, its respective agents, servants,

employees, representatives, and all of those acting in concert or participation with any of them
who receive actual notice of such injunction from:
(1)

using in any manner, in whole or in part, the marks Booster and Booster

Ball, or any colorable imitation thereof, including, but not limited to in connection with any
sporting goods business, product or service or similar or related business, product or service;
(2)

falsely representing and/or passing off the business, goods and services of

said DEFENDANT as being connected with Kwik Tek, its business and/or products, or engaging
in any act which is likely to cause the trade or public in general, to believe that said
DEFENDANT and/or its products or business with which it is connected, is in any way
affiliated, associated, or connected with Kwik Tek or sponsored by Kwik Tek, its business
10

Case 1:15-cv-00159 Document 1 Filed 01/22/15 USDC Colorado Page 11 of 13

and/or products.
(3)

seeking to register with any federal, state or local agency or authority, any

trade dress or trademark which is a colorable imitation of Kwik Teks Booster or Booster Ball
marks.
11.

DEFENDANT cancel any federal or state trademark, trade name or trade dress

registrations for or including any Booster or Booster Ball mark which is a colorable imitation
of Kwik Teks Booster or Booster Ball marks.
12.

Kwik Tek be awarded its actual damages caused by DEFENDANTS false

designation and representation of origin and deceptive trade practices, including Kwik Teks
actual damages and any sum above that amount as the Court may find just according to the
circumstances of the case, as well as DEFENDANTS profits realized by reason of
DEFENDANTs unlawful acts as aforesaid.
13.

Kwik Tek be awarded treble the amount of its actual damages for

DEFENDANTS willful and wanton conduct.

14.

Kwik Tek be awarded his costs and attorneys fees in bringing and maintaining

this lawsuit.
15.

Kwik Tek be granted such other and further relief as the Court may deem just and

equitable.
A JURY TRIAL IS REQUESTED.
DATED this 22nd day of January, 2015.
s/ Brian D. Smith
Brian D. Smith, Esq.
BRIAN D. SMITH, P.C.
4100 E. Mississippi Ave., Suite 1600
Denver, Colorado 80246
11

Case 1:15-cv-00159 Document 1 Filed 01/22/15 USDC Colorado Page 12 of 13

(303) 523-0900
ATTORNEYS FOR PLAINTIFF KWIK
TEK INC.

12

Case 1:15-cv-00159 Document 1 Filed 01/22/15 USDC Colorado Page 13 of 13

CERTIFICATE OF SERVICE
I hereby certify that on January 22, 2015, I electronically filed the foregoing
COMPLAINT AND DEMAND FOR JURY TRIAL with the Clerk of Court using the
CM/ECF system which will send notification of such filing to the parties of record.
/s/ Brian D. Smith

13

Case 1:15-cv-00159 Document 1-1 Filed 01/22/15 USDC Colorado Page 1 of 4

Exhibit A

Case 1:15-cv-00159 Document 1-1 Filed 01/22/15 USDC Colorado Page 2 of 4

Case 1:15-cv-00159 Document 1-1 Filed 01/22/15 USDC Colorado Page 3 of 4

Case 1:15-cv-00159 Document 1-1 Filed 01/22/15 USDC Colorado Page 4 of 4

Case 1:15-cv-00159 Document 1-2 Filed 01/22/15 USDC Colorado Page 1 of 2

Exhibit B

Case 1:15-cv-00159 Document 1-2 Filed 01/22/15 USDC Colorado Page 2 of 2

1/8/2015

BoosterBallsRopes/HarnessesBoating

Home > Boating > Ropes/Harnesses > BoosterBalls

Booster Balls

$125.99

$119.98

4kBoosterBall

BOB

4kBoosterBallInflatableTowRope
BuoyADVANCEDTOWINGSYS...

BOBTowRopeInflatableBuoyWhat
aboutBOB?BOBisanadvan...

1Review(s)

SHOP BY
SHOPPINGOPTIONS

Price
$119.98$119.98(1)
$125.99$125.99(1)

Brand
Airhead(1)
Sportsstuff(1)
http://www.airhead.com/boating/ropesharnesses/boosterballs.html

1/2

Case 1:15-cv-00159 Document 1-3 Filed 01/22/15 USDC Colorado Page 1 of 2

Exhibit C

Case 1:15-cv-00159 Document 1-3 Filed 01/22/15 USDC Colorado Page 2 of 2

Case 1:15-cv-00159 Document 1-4 Filed 01/22/15 USDC Colorado Page 1 of 2

Exhibit D

Case 1:15-cv-00159 Document 1-4 Filed 01/22/15 USDC Colorado Page 2 of 2

From: partenk@_.com
Sent: Tuesday, January 13, 2015 6:29 PM
To: Aaron@_.com; bsmith@_.com
Cc: eric@_.net
Subject: Re: Hydroslide Arsenal Power Ball
Aaron / Brian / Eric,
We do not infringe in any way. If you want to call and
discuss with my attorney the cost of the conversation will
be yours.
Thanks,
Keith Parten
Nash Mfg. Inc.

Case 1:15-cv-00159 Document 1-5 Filed 01/22/15 USDC Colorado Page 1 of 5

Exhibit E

Case 1:15-cv-00159 Document 1-5 Filed 01/22/15 USDC Colorado Page 2 of 5

Trademark Electronic Application System (TEAS) filing receipt

1. YOUR MARK: BOOSTER (Standard Characters, mark.jpg)

The literal element of the mark consists of BOOSTER.
The mark consists of standard characters, without claim to any particular font, style, size, or
color.
2. YOUR SERIAL NUMBER: We have received your U.S. Trademark Application and assigned
serial number '86510259' to your submission. A summary of your application data is provided at
the bottom of this message and serves as your official filing receipt. Please keep a copy of this
information for your records. All correspondence concerning the application should reference
your assigned serial number.
Please read all of the important information below. Not every mark is registrable with the
USPTO and we do not refund the application filing fee(s) if a registration does not ultimately
issue.
3. RECEIVING E-MAIL COMMUNICATIONS/FILING DOCUMENTS ON-LINE: Because
you have authorized receipt of correspondence by e-mail, please make sure that your server will
accept USPTO e-mail and not treat it as SPAM. If you must submit correspondence to us, please
use the Trademark Electronic Application System (TEAS) forms, available at
http://www.uspto.gov/trademarks/teas/index.jsp.
4. KEEP YOUR ADDRESS CURRENT IN USPTO RECORDS: We do not extend filing
deadlines due to a failure to receive USPTO mailings/e-mailings. You must update the
correspondence and/or owner's address if a postal address and/or e-mail address changes, using
the form(s) available at http://www.uspto.gov/trademarks/teas/correspondence.jsp.
5. WARNING ABOUT UNSOLICITED COMMUNICATIONS: You may receive trademarkrelated communications from private companies not associated with the USPTO. These
communications frequently display customer-specific information, including your USPTO serial
number or registration number and owner name, and request fees for trademark-related services,
such as monitoring, listings in international publications, and document filing. None of the
companies offering these services are affiliated with the USPTO or any other federal agency. All
official correspondence will be from the "United States Patent and Trademark Office" in
Alexandria, VA, and if by e-mail, specifically from the domain "@uspto.gov." Please consult the
"Warning" page on the Trademarks section of the USPTO's website for further information
about unsolicited communications and to view representative examples of them. For general
information on filing and maintenance requirements for trademark applications and registrations,
including fees required by law, please consult www.uspto.gov, contact the
TrademarkAssistanceCenter@uspto.gov or telephone 1-800-786-9199.
6. LEGAL EXAMINATION PROCESS: Your application is now pending examination. In
approximately 3 months, your application will be assigned to a USPTO examining attorney for
review. The application cannot mature into a registration unless all legal requirements are met,

Case 1:15-cv-00159 Document 1-5 Filed 01/22/15 USDC Colorado Page 3 of 5

and many applications never satisfy these requirements and therefore never register. The overall
process can take up to 18 months.
7. CHECK STATUS AND REVIEW DOCUMENTS OR YOUR APPLICATION MAY BE
UNINTENTIONALLY ABANDONED: You must check the status and review all documents
associated with your application at least every 3-4 months using Trademark Status and
Document Retrieval (TSDR), available at http://tsdr.uspto.gov/.
Promptly e-mail the TrademarkAssistanceCenter@uspto.gov or telephone 1-800-786-9199
(select option #1) if an Office action (letter from the USPTO) or notice has issued for your
application that you did not receive or do not understand. Failure to respond timely to any Office
action or notice may result in the abandonment of your application, requiring you to pay an
additional fee to have your application revived even if you did not receive the Office action or
notice.
8. FILING ERRORS: If you discover an error in the application data, you must file a Voluntary
Amendment at http://www.uspto.gov/trademarks/teas/miscellaneous.jsp. Do not submit any
proposed amendment to TEAS@uspto.gov, because the TEAS technical support team may not
make any data changes. Please wait approximately 7 days after the filing date of your application
to submit a Voluntary Amendment in order to allow for initial upload of your application data
into the USPTO database. The assigned examining attorney will determine the acceptability of
any Voluntary Amendment during examination. Not all errors may be corrected. For example, if
you submitted the wrong mark or if the proposed correction would be considered a material
alteration to your original filing, it will not be accepted. In this situation, your only recourse
would be to file a new application, with a new fee and no refund of your original filing fee.
9. REQUEST FOR REFUND AND/OR CANCELLATION: Since your application has already
been assigned a serial number, please do not contact TEAS@uspto.gov to request a refund or to
cancel the filing. We will only cancel the filing and refund the filing fee if the application does
not meet minimum filing requirements. The fee is a processing fee that the USPTO does not
refund, even if your mark does not proceed to registration.
In the limited situation where you inadvertently filed identical applications, one immediately
after the other, because no confirmation of the first filing was received, please provide both serial
numbers to the technical support team at TEAS@uspto.gov.
10. SelectUSA: The United States represents the largest, most dynamic marketplace in the world
and is an unparalleled location for business investment, innovation, and commercialization of
new technologies. The U.S. offers tremendous resources and advantages for those who invest
and manufacture goods here. Through SelectUSA, our nation works to promote and facilitate
business investment. SelectUSA provides information assistance to the international investor
community; serves as an ombudsman for existing and potential investors; advocates on behalf of
U.S. cities, states, and regions competing for global investment; and counsels U.S. economic
development organizations on investment attraction best practices. To learn more about why the
United States is the best country in the world to develop technology, manufacture products,
deliver services, and grow your business, visit SelectUSA.gov or call +1-202-482-6800.
SUMMARY OF APPLICATION DATA FOLLOWS:

Case 1:15-cv-00159 Document 1-5 Filed 01/22/15 USDC Colorado Page 4 of 5

APPLICATION DATA: You have filed a Trademark/Service Mark Application for registration
on the Principal Register using a regular TEAS application form.
The applicant, Kwik Tek, Inc., a corporation of Colorado, having an address of
12000 East 45th Ave. Unit 104
Denver, Colorado 80239
United States
requests registration of the trademark/service mark identified above in the United States Patent and
Trademark Office on the Principal Register established by the Act of July 5, 1946 (15 U.S.C. Section
1051 et seq.), as amended, for the following:
International Class 028: Low Drag Aquatic Towing System
In International Class 028, the mark was first used by the applicant or the applicant's related company
or licensee or predecessor in interest at least as early as 07/28/2008, and first used in commerce at least
as early as 07/28/2008, and is now in use in such commerce. The applicant is submitting one(or more)
specimen(s) showing the mark as used in commerce on or in connection with any item in the class of
listed goods and/or services, consisting of a(n) Photo of Booster in retail packaging.
Specimen-1 [SPE00-2071732484-20150121184424172264_._Booster.jpg ]
For informational purposes only, applicant's website address is: www.kwiktek.com
The applicant's current Correspondence Information:
Kwik Tek, Inc
12000 East 45th Ave. Unit 104
Denver, Colorado 80239
3033773722(phone)
3037338007(fax)
aaron@airhead.com;mike@airhead.com (authorized)
A fee payment in the amount of $325 has been submitted with the application, representing payment
for 1 class(es).
Declaration
The signatory believes that: if the applicant is filing the application under 15 U.S.C. Section 1051(a),
the applicant is the owner of the trademark/service mark sought to be registered; the applicant or the
applicant's related company or licensee is using the mark in commerce on or in connection with the
goods/services in the application, and such use by the applicant's related company or licensee inures to
the benefit of the applicant; the specimen(s) shows the mark as used on or in connection with the
goods/services in the application; and/or if the applicant filed an application under 15 U.S.C. Section
1051(b), Section 1126(d), and/or Section 1126(e), the applicant is entitled to use the mark in
commerce; the applicant has a bona fide intention to use or use through the applicant's related
company or licensee the mark in commerce on or in connection with the goods/services in the

Case 1:15-cv-00159 Document 1-5 Filed 01/22/15 USDC Colorado Page 5 of 5

application. The signatory believes that to the best of the signatory's knowledge and belief, no other
person has the right to use the mark in commerce, either in the identical form or in such near
resemblance as to be likely, when used on or in connection with the goods/services of such other
person, to cause confusion or mistake, or to deceive. The signatory being warned that willful false
statements and the like are punishable by fine or imprisonment, or both, under 18 U.S.C. Section 1001,
and that such willful false statements and the like may jeopardize the validity of the application or any
registration resulting therefrom, declares that all statements made of his/her own knowledge are true
and all statements made on information and belief are believed to be true.
Declaration Signature
Signature: /Mike Pleiss/ Date: 01/21/2015
Signatory's Name: Mike Pleiss
Signatory's Position: Marketing Director

Thank you,
The TEAS support team
Wed Jan 21 19:22:49 EST 2015
STAMP: USPTO/BAS-207.173.248.4-20150121192249516910-865102595309178ab589a7fa61eab12c2fd1696e1b81de772912946fcab84bfb871290a432-CC-536620150121184424172264

JS 44 (Rev. 12/11)

Case 1:15-cv-00159 Document 1-6 Filed 01/22/15 USDC Colorado Page 1 of 1

CIVIL COVER SHEET

District of Colorado Form

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose
of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a)

DEFENDANTS

PLAINTIFFS

NASH MANUFACTURING INC.

KWIK TEK INC.

(b)
(c)

County of Residence of First Listed Defendant

County of Residence of First Listed Plaintiff Denver

(IN U.S. PLAINTIFF CASES ONLY)

(EXCEPT IN U.S. PLAINTIFF CASES)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE

TRACT OF LAND INVOLVED.

Attorneys (Firm Name, Address, and Telephone Number)

Attorneys (If Known)

Brian D. Smith, P.C., 4100 E. Mississippi Ave., Denver, CO 80246

Phone: 303-523-0900

II. BASIS OF JURISDICTION (Place an X in One Box Only)

III. CITIZENSHIP OF PRINCIPAL PARTIES

3 Federal Question
(U.S. Government Not a Party)

1 U.S. Government
Plaintiff

4 Diversity
(Indicate Citizenship of Parties in Item III)

2 U.S. Government
Defendant

IV. NATURE OF SUIT (Place an X in One Box Only)

CONTRACT
110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment
151 Medicare Act
152 Recovery of Defaulted
Student Loans (Excl. Veterans)
153 Recovery of Overpayment
of Veterans Benefits
160 Stockholders Suits
190 Other Contract
195 Contract Product Liability
196 Franchise
REAL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property

TORTS
PERSONAL INJURY
PERSONAL INJURY
310 Airplane
315 Airplane Product
Liability
320 Assault, Libel &
Slander
330 Federal Employers
Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal Injury
362 Personal Injury Med. Malpractice
CIVIL RIGHTS
440 Other Civil Rights
441 Voting

365 Personal Injury Product Liability

367 Health Care/
Pharmaceutical
Personal Injury
Product Liability
368 Asbestos Personal
Injury Product Liability
PERSONAL PROPERTY
370 Other Fraud
371 Truth in Lending
380 Other Personal
Property Damage
385 Property Damage
Product Liability
PRISONER PETITIONS
Habeas Corpus:
463 Alien Detainee
510 Motions to Vacate
Sentence
530 General

442 Employment
443 Housing/
Accommodations
445 Amer. w/Disabilities Employment
446 Amer. w/Disabilities Other

535 Death Penalty

Other:
540 Mandamus & Other
550 Civil Rights

448 Education

V. ORIGIN

(For Diversity Cases Only)

PTF

DEF

Citizen of Another State

Citizen or Subject of a
Foreign Country

Citizen of This State

FORFEITURE/PENALTY
625 Drug Related Seizure
of Property 21 USC 881
690 Other

(Place an X in One Box for Plaintiff)

and One Box for Defendant)
4

Incorporated and Principal Place

of Business In Another State

Foreign Nation

BANKRUPTCY

OTHER STATUTES

422 Appeal 28 USC 158

375 False Claims Act

400 State Reapportionment
410 Antitrust
430 Banks and Banking

423 Withdrawal
28 USC 157
820 Copyrights
830 Patent
840 Trademark

LABOR

SOCIAL SECURITY

740 Railway Labor Act

751 Family and Medical
Leave Act
790 Other Labor Litigation
791 Empl. Ret. Inc.
Security Act
IMMIGRATION

DEF

PROPERTY RIGHTS

710 Fair Labor Standards

Act
720 Labor/Mgmt. Relations

PTF

Incorporated or Principal Place

of Business In This State

861 HIA (1395ff)

862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(g))
TAX SUITS
870 Taxes (U.S. Plaintiff
or Defendant)
871 IRS - Third Party
26 USC 7609

462 Naturalization Application

450 Commerce
460 Deportation
470 Racketeer Influenced and
Corrupt Organizations
480 Consumer Credit
490 Cable/Sat TV
850 Securities/Commodities/
Exchange
890 Other Statutory Actions
891 Agricultural Acts
893 Environmental Matters
895 Freedom of Information Act
896 Arbitration
899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
950 Constitutionality of
State Statutes

465 Other Immigration

Actions

555 Prison Condition

560 Civil Detainee Conditions of Confinement

(Place an X in One Box Only)

1 Original

Proceeding

Transferred from
2 Removed from
3 Remanded from
4 Reinstated or
5 another district
6 Multidistrict
State Court
Appellate Court
Reopened
Litigation
(specify)
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

VI. CAUSE OF ACTION

Appeal to District
7 Judge from
Magistrate Judgment

35 USC Section 271 et seq.

AP Docket

Brief description of cause:

Patent Infringement and Unfair Competition

VII. REQUESTED IN
COMPLAINT:

CHECK YES only if demanded in complaint:

No
Yes
JURY DEMAND:

CHECK IF THIS IS A CLASS ACTION

UNDER F.R.C.P. 23
DEMAND $

DATE

SIGNATURE OF ATTORNEY OF RECORD

January 22, 2015

s/BrianDSmith

FOR OFFICE USE ONLY

RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE