Laerdal Medical et. al. v. Tellyes Scientific et. al.

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Official Complaint for Patent Infringement in Civil Action No. 8:13-cv-02914-SDM-AEP: Laerdal Medical Corp. et. al. v. Tellyes Scientific et. al. Filed in U.S. District Court for the Middle District of Florida, the Hon. Steven D. Merryday presiding. See http://news.priorsmart.com/-l9w2 for more info.

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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 Alere USA, LLC Defendants. JURY TRIAL DEMANDED Civil Action No. _________________

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 the

State 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, a

Norway-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, having

its corporate headquarters at 18 West Hai Tai Road, West 6th Building, 3rd floor, Tianjin, China,

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 organized

under 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 of

business 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 Tellyes’s infringing products and devices. JURISDICTION AND VENUE 7. This action arises under the patent laws of the United States of America, Title 35

of 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 committing

infringements 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 regular

and established places of business in this judicial district, and are each committing acts of infringement within this judicial district. 2

10. proper. 11.

Personal jurisdiction over each of Defendants in this judicial district is thus

Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391, including

without 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 in

the foregoing paragraphs. 13. On March 26, 2013, U.S. Patent No. 8,403,674 (hereinafter referred to as “the

Laerdal‘674 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 allowing

medical 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 as Ex. 1. THE LAERDAL ‘787 PATENT 15. Laerdal repeats and incorporates herein the entirety of the allegations contained in

the foregoing paragraphs. 16. On October 20, 1998, U.S. Patent No. 5,823,787 (hereinafter referred to as “the

Laerdal‘787 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 medical

professionals 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 as Ex. 2. COUNT ONE – INFRINGEMENT OF THE ‘674 PATENT 18. Laerdal repeats and incorporates herein the entirety of the allegations contained in

the above paragraphs. 19. Defendants Tellyes, Simulative and Alere have been and still are directly

infringing 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 ecommerce

website 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 Tellyes’s distributor in the United States of America. Copies of selected printouts from the Defendant Tellyes’s website and Defendant Alere’s website are attached hereto as Ex. 3. 21. On information and belief, 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 4

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/or

other infringing products sold, offered for sale or marketed in the United States of America through the Internet and Customer Support services on the Defendant Tellyes’s website. 25. Defendants Simulative and Alere have been and still are directly infringing the

Laerdal ‘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 Defendant

Tellyes 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 ‘674

Patent and will be irreparably harmed unless such infringing activities are enjoined by this Court. COUNT TWO – INFRINGEMENT OF THE ‘787 PATENT 28. Laerdal repeats and incorporates herein the entirety of the allegations contained in

the above paragraphs. 5

29.

Defendants Tellyes, Simulative and Alere have been and still are directly

infringing the Laerdal ‘787 Patent by, among other things, using, advertising, marketing, testing, selling, offering to sell and importing Defendant Tellyes’s 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 ecommerce

website 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 Tellyes’s distributor in the United States of America. Copies of selected printouts from Defendant Tellyes’s website and Defendant Alere’s website are attached hereto as Ex. 3. 31. On information and belief, 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 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 Tellyes’s website. 35. Defendants Simulative and Alere have been and still are directly infringing the

Laerdal ‘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 Tellyes’s Victor ICU, Rescue Angel and other

similar 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 ‘787

Patent and will be irreparably harmed unless such infringing activities are enjoined by this Court. COUNT THREE - COPYRIGHT INFRINGEMENT 38. Laerdal repeats and incorporates herein the entirety of the allegations contained in

the above paragraphs. 39. Laerdal created literature that is used to describe one or more products made by

Laerdal (hereinafter the “Laerdal Literature”). The Laerdal Literature is unique and creative, and entitled to copyright protection. 40. Among others, Laerdal Literature includes information, description and

photographs of Laerdal’s products on Laerdal’s 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 as Ex. 4. 42. The Copyright Registrations owned by Laerdal include without limitation

copyrights 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 as Ex. 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 as Ex. 4B); (c) text and images in the Laerdal Product Catalogs for 2004 (copyright and selected portions of the deposit materials are attached hereto as Ex. 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 as Ex. 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 as Ex. 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 as Ex. 4G). 43. Upon information and belief, Defendant Tellyes had access to the Laerdal

Literature, and copied the Laerdal Literature to produce its own literature, for Defendant Tellyes’s products. Copies of selected pages of some of the infringing Tellyes’s product literature (Tellyes Literature) are attached hereto as Ex. 5. 44. Defendant Tellyes makes, imports, distributes and/or sells unauthorized copies of

the Laerdal Literature, or parts thereof, as the Tellyes Literature in the United States of America 8

and the State of Florida, all in violation of Laerdal’s valuable copyright rights. 45. The Tellyes Literature used for Defendant Tellyes’s own products is an

unauthorized and unlicensed reproduction of Laerdal’s 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 Laerdal’s Literature with any of Defendant Tellyes’s products that are sold, marketed, distributed and imported into the United States of America, either directly or indirectly by Defendant Tellyes. 47. Laerdal’s copyrights on and for the Laerdal Literature comprise in whole or in

part, 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. Tellyes’s infringing activities are done in violation of Laerdal’s exclusive rights

in the copyright(s) covering the Laerdal Literature. 49. On information and belief, Defendants Tellyes, Alere, and Simulative have

reproduced, imported, sold, made derivative works, offered for sale and/or distributed, either directly or indirectly, the Tellyes Literature in violation of Laerdal’s 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 Defendant

Tellyes’s 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 Tellyes’s unlawful conduct, Laerdal has suffered and

will continue to suffer damages. 52. Defendant Tellyes’s infringing activities, including the continued, unauthorized

reproduction of Laerdal’s 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) 53. Laerdal repeats and incorporates herein the entirety of the allegations contained in

the above paragraphs. 54. Plaintiff Laerdal Medical Corp. is a U.S. subsidiary of Plaintiff Laerdal Medical

AS, 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 medical

products 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 Manikins 56. 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 Laerdal’s Web page at www.laerdal.com/doc/85/SimMan-3G. An image showing this 10

product is attached hereto as Ex. 6. 57. Through Laerdal’s advertising, marketing, and sales efforts, the Laerdal

SimMan® 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 is

inherently 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 is

characterized 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 infringing

trade dress from Laerdal’s SimMan® 3G line of manikin products to Defendant Tellyes’s 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 as Ex. 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 Tellyes’s 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 a

creative 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 Laerdal’s website at www.laerdal.com/us/doc/199/MegaCode-Kelly. An image showing this product is attached hereto as Ex. 7. 63. Through Laerdal’s advertising, marketing, and sales efforts, the Laerdal Mega

Code 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 is

inherently 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 is

characterized 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 Laerdal’s Mega Code Kelly line of manikin products to Defendant Tellyes’s 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

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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 as Ex. 7. 67. Upon information and belief, the Tellyes Rescue Angel products are made

available by Tellyes in the United States of America either directly on Tellyes’s 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 a

collection of advanced trauma body part modules, for use with Laerdal’s manikins. Laerdal’s 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 Laerdal’s 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 as Ex. 9. 69. Through Laerdal’s advertising, marketing, and sales efforts, the Laerdal

Advanced 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 is

inherently 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 Laerdal’s Trauma Module products discussed above is

characterized 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 infringing

trade dress from Laerdal’s Advanced Trauma Modules, Trauma Module Set and MegaCode Trauma Module Set products to Defendant Tellyes’s 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 as Ex. 9. 73. Upon information and belief, the Tellyes Advanced Trauma Modules are made

available by Tellyes in the United States of America either directly on Tellyes’s 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 aesthetic

look for use with Laerdal® Infant Airway Management Trainer products, a line of realistic 3month-old infant manikins for teaching and practicing basic and advanced airway management skills. This product line is marketed on Laerdal’s 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 as Ex. 8. 75. Through Laerdal’s advertising, marketing, and sales efforts, the Laerdal Infant

Airway 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 is

inherently 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 is

characterized 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 infringing

trade dress from Laerdal Infant Airway Management Trainer products to Defendant Tellyes’s competing line of Tellyes 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 “Neonate Airway Management Trainer.” A copy of the Tellyes product information and a price quote for Tellyes’s Neonate Airway Management Trainer products are attached hereto as Ex. 8. 79. Upon information and belief, the Tellyes Neonate Airway Management Trainer

products are made available by Tellyes in the United States of America either directly on

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Tellyes’s website at http://en.tellyes.com/product/4fa797ed66cc3.html and/or through other Defendants. 80. Defendant Tellyes’s unauthorized use, marketing and distribution of Laerdal’s

trade dress that was designed and developed by Laerdal for Laerdal’s (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, Tellyes’s own abovereferenced products and other similar Tellyes products constitutes trade dress infringement under the Lanham Act, 15 U.S.C. § 1125. 81. As a result of Defendant Tellyes’s unlawful conduct, Laerdal has suffered and

will continue to suffer damages. 82. The intent and result of Defendants’ unlawful conduct has been a palming off of

Laerdal’s 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 Defendant

Tellyes’s unlawful and infringing conduct, Defendant Tellyes has realized and continues to realize profits and other benefits rightfully belonging to Laerdal. 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 Tellyes’s unlawful conduct has been willful, with full knowledge

and/or reckless disregard of Laerdal’s trade dress rights. Laerdal believes that Defendants will continue such willful and intentional conduct unless enjoined by this Court. 86. Defendant Tellyes’s infringing activities, including the continued, unauthorized

reproduction of Laerdal’s trade dress in connection with the sale, marketing and distribution of Defendant Tellyes’s products are causing and will cause Laerdal irreparable harm, including without limitation significant harm to Laerdal’s reputation and goodwill, which Laerdal has established through years of effort and expense. 87. Defendant Tellyes’s 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 Tellyes’s 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’ wrongful

conduct, 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) 89. Laerdal repeats and incorporates herein the entirety of the allegations contained in

the above paragraphs. 90. Defendant Tellyes’s unauthorized use, marketing and distribution of Laerdal’s

trade dress that was designed and developed by Laerdal for Laerdal’s (A) SimMan® 3G Manikins; (B) Mega Code Kelly Full-Body Manikins; (C) Trauma Modules; and (D) Infant 17

Airway Management Trainer Products, as part of, or in connection with, Tellyes’s own abovereferenced 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. 91. As a result of Defendant Tellyes’s unlawful conduct, Laerdal has suffered and

will continue to suffer damages. 92. The intent and result of Defendants’ unlawful conduct has been a palming off of

Laerdal’s 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 Defendant

Tellyes’s unlawful and infringing conduct, Defendant Tellyes has realized and continues to realize profits and other benefits rightfully belonging to Laerdal. 94. 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. 95. Defendants Tellyes’s unlawful conduct has been willful, with full knowledge

and/or reckless disregard of Laerdal’s trade dress rights. Laerdal believes that Defendants will continue such willful and intentional conduct unless enjoined by this Court. 96. Defendant Tellyes’s infringing activities, including the continued, unauthorized

reproduction of Laerdal’s trade dress in connection with the sale, marketing and distribution of

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Defendant Tellyes’s products are causing and will cause Laerdal irreparable harm, including without limitation significant harm to Laerdal’s reputation and goodwill, which Laerdal has established through years of effort and expense. 97. Defendant Tellyes’s 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 Tellyes’s 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’ wrongful

conduct, 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 Laerdal’s trade 19

dress developed in connection with Laerdal’s SimMan® 3G Manikins, Mega Code Kelly FullBody 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 Laerdal’s 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 Laerdal’s trade dress in connection with Tellyes’s infringing products; and (iv) impounding the Tellyes products that infringe Laerdal’s trade dress.

20

J. Awarding Laerdal its actual and/or statutory damages, and Tellyes’s profits in an amount to be determined at trial. K. Award of Laerdal’s 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 33401 Phone: (561) 847-7800 Fax: (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] [email protected] Attorneys for Plaintiffs Laerdal Medical Corp. and Laerdal Medical AS 21

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