Fecon v. King Kong Tool - Complaint

Case: 1:16-cv-01137-TSB Doc #: 1 Filed: 12/09/16 Page: 1 of 16 PAGEID #: 1
IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Case No. 1:16-cv-1137
FECON, INC.,
Plaintiff,
v.
COMPLAINT
DEMAND FOR JURY TRIAL
KING KONG TOOLS, LLC

and
KINGKONG-TOOLS GMBH & CO. KG,
Defendants.
Fecon, Inc. ("Fecon"), for its complaint against Defendants King Kong Tools, LLC
("King Kong Tools USA") and KingKong-Tools GmbH & Co. KG ("King Kong Tools
Germany") (collectively, "King Kong Tools"), states as follows:
SUMMARY AND NATURE OF THE ACTION
1.
After years of serving as Fecon's trusted supplier, Defendant King Kong Tools is
now using Fecon's trade secret drawings to manufacture and sell inferior but identically
appearing products to compete directly with Fecon.
2.
Not only is Defendant King Kong Tools' misappropriation unethical, it violates a
non-disclosure agreement with Fecon, constitutes patent infringement, and constitutes actionable
unfair competition.
3.
Fecon now files this lawsuit to put an end to Defendant King Kong Tools'
misconduct and to recover damages for the harm that Defendant King Kong Tools has caused.
PARTIES
4.
Fecon is an Ohio corporation having an office and principal place of business at
3460 Grant Drive, Lebanon, Ohio 45036.

5.
Defendant King Kong Tools USA is a Georgia limited liability company having
an office and principal place of business at 753 Church Street, Buford, Georgia 30518.
6.
Defendant King Kong Tools Germany is a German corporation. On information
and belief, Defendant King Kong Tools Germany owns or controls Defendant King Kong Tools
USA, and Defendant King Kong Tools USA is acting as the agent of Defendant King Kong
Tools Germany for purposes of conducting the business of Defendant King Kong Tools
Germany in this jurisdiction and elsewhere throughout the United States.
JURISDICTION AND VENUE
7.
This Court has subject matter jurisdiction under 28 U.S.C. 1331 (federal
question), 28 U.S.C. 1338 (patent and unfair competition), 28 U.S.C. 1367 (supplemental
jurisdiction), and 15 U.S.C. 1121 (Lanham Act).
8.
Venue in this judicial district is proper at least under 28 U.S.C. 1391(b) and 28
U.S.C. 1400(b).
9.
This Court has personal jurisdiction over Defendants under the Ohio long-arm
statute, Ohio Rev. Code 2307.382, at least because (i) Defendants each, on information and
belief, regularly does and solicits business, engages in other persistent courses of conduct, and
derives substantial revenue from goods used or consumed or services rendered in Ohio; and (ii)
Fecon's claims arise out of Defendants' (1) transacting business in Ohio, (2) causing tortious
injury by acts in Ohio, and (3) causing tortious injury in Ohio.
10.
In addition, Defendants have consented in a non-disclosure agreementexecuted
on or about February 20, 2009to venue in this judicial district and to the Court's exercise of
personal jurisdiction over them.
PATENT-IN-SUIT
11.
United States Patent No. D757,124 ("the '124 patent") is titled "Land Clearing
Tool Interface" and issued on May 24, 2016. Attached as Exhibit 1 is a copy of the '124 patent.
12.
Fecon is the owner of the '124 patent by assignment.

ALLEGATIONS COMMON TO ALL CLAIMS
The Business of Fecon
13.
Fecon is the industry leader in forestry mulching attachments.
14.
For example, Fecon sells a line of hydraulic mulchers that attach to skid steers
small, rigid-frame, engine-powered machines with lift arms, such as the skid steer manufactured
by John Deere depicted in the below image:
15.
Below are images of a Fecon mulcher attachment (left) and a skid steer (right)
with the Fecon mulcher attached:
16.
Fecon also sells various cutting "teeth" that fasten to mulchers. Below are
images of three such Fecon teeth:
FGT Double Carbide
17.
FGT Severe Duty
FGT Samurai Knife
Specifically, these teeth fasten to a mulcher rotor, such as the drum-style rotor
depicted in the image below with FGT Samurai Knife teeth (shown in red):
18.
Fecon's '124 patent claims the design of "a land clearing tool interface," i.e., a
type of mulcher tooth. Below are exemplary Figures 1, 2, 3, 4, and 7 from the '124 patent:
Defendant King Kong Agrees to Supply Products for Fecon

19.
In early 2009, Fecon and Defendant King Kong Tools discussed a potential
business relationship under which Defendant King Kong Tools would act as a supplier for
certain Fecon mulcher teeth.
20.
In anticipation of such a business relationship, on or about February 20, 2009,
Defendant King Kong Tools and Fecon entered into a non-disclosure agreement (the "Nondisclosure Agreement") whereby Defendant King Kong Tools promised to maintain the
confidentiality of Fecon information and not to use it unless authorized by Fecon. Attached as
Exhibit 2 is a copy of the Non-disclosure Agreement.
21.
Defendant King Kong Tools promised "not [to] use [Fecon's] Confidential
Information in whole or in part except in conjunction with the performance of certain tests,
making certain reviews, effecting certain assessments, and undertaking certain discussions
authorized herein, unless specifically authorized in writing by [Fecon]." Moreover, Defendant
King Kong Tools expressly promised in the agreement that Defendant King Kong Tools "will
not use the Confidential Information to compete with [Fecon] or to develop, design, manufacture
or sell any products which compete with [Fecon's] Product Line."
22.
Defendant King Kong Tools also agreed in the Non-disclosure Agreement that
"[a]ny action to enforce rights or benefits conferred by [the Non-disclosure Agreement] shall be
brought in the appropriate courts in Hamilton County, Ohio, U.S.A." Defendant King Kong
Tools further "consent[ed] to the jurisdiction of such courts."
23.
In reliance on Defendant King Kong Tools' promises, Fecon disclosed to
Defendant King Kong Tools, among other things, multiple confidential and proprietary drawings
of Fecon mulcher teeth.
24.
Defendant King Kong Tools became a supplier for Fecon mulcher teeth and used
Fecon's confidential and proprietary drawings to manufacture the teeth.

25.
After Defendant King Kong Tools began supplying teeth to Fecon, Defendant
King Kong Toolswithout notifying Feconswitched to a Chinese manufacturer. Fecon began

receiving complaints regarding the quality of the teeth manufactured in China. Fecon thereafter
terminated the relationship on or about August 1, 2016.
Defendant King Kong Tools Threatens To Breach
And Then Breaches the Non-disclosure Agreement
26.
After Fecon terminated the relationship, Defendant King Kong Tools threatened
to manufacture the teeth and sell them in direct competition with Fecon.
6
27.
Despite Defendant King Kong Tools' promises in the Non-disclosure Agreement,
Defendant King Kong Tools began manufacturing and sellingin direct competition with
FeconFecon-designed teeth, including, but without limitation, model numbers KFS594,
KFS595, and KFS1186.
28.
The design for each of these three teeth is virtually identical in appearance to the
novel design covered by the '124 patent.

29.
For example, below is a table with figures from the '124 patent and with drawings
obtained online (http://www.kingkong-tools.com) of Defendant King Kong Tools' unauthorized

teeth (the claimed design is shown in solid lines in the patent figures):
Figure from '124
Patent
Defendants'
Drawing of KFS594
Defendants'
Drawing of KFS595
Defendants'
Drawing of KFS1186
Figure from '124

Patent
Defendants'
Drawing of KFS594
Defendants'
Drawing of KFS595
Defendants'
Drawing of KFS1186
[Corresponding image
not on Defendant
King Kong's website]
30.
On information and belief, Defendant King Kong Tools is marketing, advertising,
selling, and offering for sale these teeth in Ohio, in this judicial district, throughout the United
States, and in other jurisdictions worldwide over the Internet.
FIRST CLAIM FOR RELIEF
(Patent Infringement)
31.
Fecon repeats and incorporates by reference the allegations set forth in the
foregoing paragraphs.
32.
Defendant King Kong Tools, without authorization from Fecon, has distributed,
advertised, promoted, offered for sale, and sold mulcher teethincluding KFS594, KFS595, and
KFS1186the designs of which are substantially the same as the design set forth in the '124
patent.
33.
Defendant King Kong Tools' infringing teeth appropriate the novel ornamental
features set forth in the '124 patent such that an ordinary observer, giving such attention as a
purchaser usually gives, would find Fecon's patented design and Defendant King Kong Tools'
designs to be substantially the same, and the resemblance is such as to deceive such an observer,
inducing him to purchase one supposing it be the other.
34.
By the foregoing acts, Defendant King Kong Tools has infringed the '124 patent.
8
35.
Fecon owned the '124 patent through the period of the infringing acts of
Defendant King Kong Tools, and Fecon still owns the '124 patent.
36.
Fecon has been and continues to be damaged and otherwise harmed by Defendant
King Kong Tools' infringement, and Fecon will be irreparably harmed unless Defendant King
Kong Tools' infringing activities are enjoined.
SECOND CLAIM FOR RELIEF
(Breach of Contract)
37.
38.
The Non-disclosure Agreement is a valid and enforceable contract supported by
consideration.
39.
Under the terms of the Non-disclosure Agreement, Defendant King Kong Tools
promised, among other things, (1) to maintain the confidentiality of Fecon's confidential
information; (2) not to use the information to compete with Fecon; and (3) not to use the
information to develop, design, manufacture, or sell any competitive products.
40.
Fecon fully performed its obligations under the Non-disclosure Agreement.
41.
Defendant King Kong Tools used Fecon's confidential information to compete
with Fecon and to sell competitive products.

42.
Defendant King Kong Tools thereby breached the terms of the Non-disclosure
Agreement.
43.
As a direct and proximate result of these breaches, Fecon has suffered harm in an
amount exceeding $75,000 to be determined at trial.

44.
Defendant King Kong Tools agreed in the Non-disclosure Agreement that Fecon
"shall have the right to injunctive relief upon the breach or threatened breach of this Agreement,"
9
and Fecon is thus entitled to injunctive relief and will be irreparably harmed unless Defendant
King Kong Tools' infringing activities are enjoined.
THIRD CLAIM FOR RELIEF
(Misappropriation of Trade Secrets18 U.S.C. 1836 et seq.)
45.
46.
Fecon's confidential and proprietary drawings provide Fecon with a valuable
competitive advantage by enabling Fecon to manufacture and have manufactured its products to
exacting specifications that result in unmatched quality.
47.
These confidential and proprietary drawings are not generally known in the
industry and are not readily ascertainable by inspection, testing, or other proper means.
48.
As a result, these confidential and proprietary drawings derive independent
economic value from not being generally known toand not being readily ascertainable by
proper means byothers who can obtain economic value from the disclosure or use of the
drawings.
49.
Fecon has taken reasonable measures to keep these confidential and proprietary
drawings secret.
50.
These confidential and proprietary drawings are trade secrets under 18 U.S.C.
51.
Defendant King Kong Tools misappropriated Fecon's trade secrets regarding
1839.
these confidential and proprietary drawings under 18 U.S.C. 1839 at least because Defendant
King Kong Tools used and continues to use these trade secrets knowing that it had acquired them
under circumstances giving rise to a duty to maintain the secrecy of the trade secrets and limit
their use.
10
52.
Fecon's products manufactured from these confidential and proprietary drawings
are sold throughout the United States and the world, and, on information and belief, Defendant
King Kong Tools sells such unauthorized products throughout the United States and the world.
Both Fecon's and Defendant King Kong Tools' products are therefore "used in, or intended for
use in, interstate or foreign commerce" under 18 U.S.C. 1836(b)(1).
53.
Defendant King Kong Tools' misappropriation is ongoing and includes acts that
have occurred on and after May 11, 2016the effective date of the Defend Trade Secrets Act
including, for example, the manufacture, sale, and offer for sale of teeth developed using Fecon's
trade secrets.
54.
Fecon has been and continues to be damaged and otherwise harmed by Defendant
King Kong Tools' misappropriation, and Fecon will be irreparably harmed unless Defendant
King Kong Tools' misappropriation is enjoined.
FOURTH CLAIM FOR RELIEF
(Misappropriation of Trade SecretsOhio Rev. Code 1333.61 et seq.)
55.
56.
Fecon's confidential and proprietary drawings are trade secrets under Ohio Rev.
Code 1333.61.
57.
Defendant King Kong Tools' use of Fecon's trade secrets constitutes
misappropriation under Ohio Rev. Code 1333.61.

58.
Defendant King Kong Tools' misappropriation has caused Fecon serious and
ongoing irreparable harm, which will continue unless Defendant King Kong Tools' unlawful
conduct is enjoined by the Court.
11
59.
Defendant King Kong Tools' misappropriation also has damaged Fecon in an
amount exceeding $75,000 to be determined at trial.

FIFTH CLAIM FOR RELIEF
(Lanham Act, 15 U.S.C. 1125(a))
60.
61.
Section 43(a) of the Lanham Act prohibits, among other things, the use in
commerce of any "any word, term, name, symbol, or device, or any combination thereof, or any
false designation of origin, false or misleading description of fact, or false or misleading
representation of fact, which is likely to cause confusion, or to cause mistake, or to deceive as
to the affiliation, connection, or association of such person with another person, or as to the
origin, sponsorship, or approval of his or her goods, services, or commercial activities by another
person."
62.
After Fecon terminated its relationship with Defendant King Kong Tools,
Defendant King Kong Tools sold, without authorization, mulcher teeth designed by Fecon.
63.
Although Fecon has no affiliation, connection, or association with Defendant
King Kong Tools, Defendant King Kong Tools uses the FECON mark in advertising, promoting,
and describing Defendant King Kong Tools' mulcher teeth.
64.
Moreover, before Fecon terminated its relationship with Defendant King Kong
Tools, Defendant King Kong Tools promoted and advertised teeth it supplied to Fecon as "our
carbide teeth for FECON." See, e.g.,
https://web.archive.org/web/20151105012310/http://www.kingkong-tools.com/products/forestrymowers/fecon/.
12
65.
Now, after Fecon terminated its relationship with Defendant King Kong Tools,
Defendant King Kong Tools promotes and advertises its unauthorized teeth as "King Kong Tools
for Fecon." See, e.g, https://web.archive.org/web/20160422000911/http://www.kingkongtools.com/products/forestry-mowers/fecon/.
66.
Although Defendant King Kong Tools does not sell genuine Fecon teeth,
Defendant King Kong Tools thus falsely and misleadingly suggests to customers and potential
customers that they can buy genuine Fecon teeth directly from Defendant King Kong Tools.
67.
In addition, Defendant King Kong Tools, on information and belief, has falsely
stated and misleadingly represented to customers and potential customers that Defendant King
Kong Tools' teeth are identical to Fecon's teeth in quality and other characteristics.
68.
These statements and representations by Defendant King Kong Toolsgiven the
parties' past relationship and the superficial similarity of the parties' mulcher teethfalsely and
misleadingly represent an affiliation, connection, and association with Fecon and also mispresent
the characteristics and qualities of Defendant King Kong Tools' teeth.
69.
Defendant King Kong Tools' false and misleading statements have the tendency
to deceive a substantial segment of their audiences.

70.
In addition, because Defendant King Kong Tools slavishly copied the distinctive
and non-functional appearance of Fecon's teethwhich identifies the teeth as originating

exclusively with Fecon Defendant King Kong Tools' teeth are likely to cause confusion, to
cause mistake, and to deceive customers and potential customers as to origin, sponsorship, or
approval by Fecon.
71.
Defendant King Kong Tools' deception was material and has influenced the
purchasing decisions of Defendant King Kong Tools' customers.
13
72.
Defendant King Kong Tools' unauthorized teeth and false and misleading
statements all entered interstate commerce.

73.
Fecon has been damaged as a result of Defendant King Kong Tools' misconduct
and, under 15 U.S.C. 1117(a), Fecon is entitled to at least (1) Defendant King Kong Tools'
profits resulting from sales of its unauthorized teeth, (2) all resulting damages sustained by
Fecon, and (3) the costs of this action.
74.
Further, Fecon is entitled to its reasonable attorney's fees under 15 U.S.C.
1117(a) because Defendant King Kong Tools acted in bad faith and Defendant King Kong Tools'
conduct was malicious, fraudulent, deliberate, and willful.
SIXTH CLAIM FOR RELIEF
(Ohio Deceptive Trade Practices Act, Ohio Rev. Code 4165.01 et seq.)
75.
76.
The Ohio Deceptive Trade Practices Act, Ohio Rev. Code 4165.01 et seq.,
prohibits, among other things, businesses from "[r]epresent[ing] that goods or services have
sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not
have."
77.
In selling, describing, and representing the unauthorized teeth, Defendant King
Kong Tools (1) falsely represented and intended to represent an affiliation, connection, and
association with Fecon and (2) misrepresented the quality of Defendant King Kong Tools' teeth.
78.
Defendant King Kong Tools' conduct actually deceived and is still deceiving a
substantial segment of the customers and potential customers.

79.
Defendant King Kong Tools' false and misleading statements have the tendency
to deceive a substantial segment of their audiences.

14
80.
On information and belief, at least some of Defendant King Kong Tools' sales and
misrepresentations occurred within the State of Ohio.

81.
Fecon has been damaged as a result of Defendant King Kong Tools' misconduct.
82.
The full extent of Fecon's damages is currently unknown but exceeds $75,000.
83.
Fecon is entitled to injunctive relief under Ohio Rev. Code 4165.03 and will be
irreparably harmed unless Defendant King Kong Tools' infringing activities are enjoined.
PRAYER FOR RELIEF
WHEREFORE, Fecon respectfully prays for judgment against Defendants King Kong
Tools USA and King Kong Tools Germany:
A.
Adjudging that Defendants have infringed the '124 patent;
B.
Permanently enjoining Defendants, their officers, agents, suppliers, distributors,
servants, employees, successors, assigns, and all persons acting in concert or participation with
Defendants, from continuing acts of infringement of the '124 patent;
C.
Permanently enjoining Defendants, their officers, agents, suppliers, distributors,
servants, employees, successors, assigns, and all persons acting in concert or participation with
Defendants, from misappropriating Fecon's trade secrets and requiring the destruction of any
materials either containing Fecon's trade secrets or created as a result of Defendants'
misappropriation;
D.
Adjudging that an accounting be had for damages caused by Defendants'
infringements and other misconduct, and awarding damages, together with pre-judgment and
post-judgment interest;
E.
Trebling of damages for any willful and malicious misappropriation;
F.
Attorney's fees;
15
G.
Costs; and
H.
Such other and further relief to Fecon that the Court deems appropriate.
JURY DEMAND
Plaintiff Fecon demands a trial by jury for all issues so triable.
Respectfully submitted,
/s/ John F. Bennett

John F. Bennett (0074506)
Trial Attorney
Paul M. Ulrich (0071520)
Ulmer & Berne LLP
600 Vine Street, Suite 2800
Cincinnati, Ohio 45202-2409
Telephone: (513) 698-5000
Facsimile: (513) 698-5153
jbennett@ulmer.com
pulrich@ulmer.com
ATTORNEYS FOR FECON, INC.
16
Case: 1:16-cv-01137-TSB Doc #: 1-1 Filed: 12/09/16 Page: 1 of 6 PAGEID #: 17

WESTERN DIVISION
FECON, INC.,
Plaintiff,
v.
Case No. 1:16-cv-1137

COMPLAINT EXHIBIT 1:
U.S. PATENT NO. D757,124

and
Defendants.
COMPLAINT EXHIBIT 1
COMPLAINT EXHIBIT 1
COMPLAINT EXHIBIT 1
COMPLAINT EXHIBIT 1
COMPLAINT EXHIBIT 1

WESTERN DIVISION
FECON, INC.,
Plaintiff,
v.
Case No. 1:16-cv-1137

COMPLAINT EXHIBIT 2:
NON-DISCLOSURE AGREEMENT

and
Defendants.
COMPLAINT EXHIBIT 2
COMPLAINT EXHIBIT 2
COMPLAINT EXHIBIT 2
JS 44 (Rev. 0&/16)
CIVIL COVER SHEET
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) PLAINTIFFS
DEFENDANTS
Fecon, Inc.
King Kong Tools, LLC and KingKong-Tools GMBH & Co. KG
(b) County of Residence of First Listed Plaintiff
Warren
County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES)
(IN U.S. PLAINTIFF CASES ONLY)

IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
NOTE:
(c) Attorneys (Firm Name, Address, and Telephone Number)
John F. Bennett
Ulmer & Berne LLP
600 Vine Street, Suite 2800, Cincinnati, OH 45202 (513) 698-5000
II. BASIS OF JURISDICTION (Place an X in One Box Only)

" 1
U.S. Government
Plaintiff
" 3
Federal Question
(U.S. Government Not a Party)
" 2
U.S. Government
Defendant
" 4
Diversity
(Indicate Citizenship of Parties in Item III)
Attorneys (If Known)
III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff

(For Diversity Cases Only)
PTF
Citizen of This State
" 1
DEF
" 1
Citizen of Another State
" 2
"
Incorporated and Principal Place

of Business In Another State
" 5
" 5
Citizen or Subject of a
Foreign Country
" 3
"
Foreign Nation
" 6
" 6
IV. NATURE OF SUIT (Place an X in One Box Only)

CONTRACT
"
"
"
"
"
"
"
"
"
"
"
"
"
"
"
"
"
"
"
"
"
"
"
"
"
"
"
"
(8617 53>3 4<>' +/@A>3 <4 -A6@ (<23 )3?1>6=@6<;?$
TORTS
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
(Excludes 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
"
"
"
"
"
"
"
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 Medical Malpractice
CIVIL RIGHTS
440 Other Civil Rights
441 Voting
442 Employment
443 Housing/
Accommodations
445 Amer. w/Disabilities Employment
446 Amer. w/Disabilities Other
448 Education
and One Box for Defendant)

PTF
DEF
Incorporated or Principal Place
" 4
" 4
of Business In This State
FORFEITURE/PENALTY
PERSONAL INJURY
" 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
" 535 Death Penalty
Other:
" 540 Mandamus & Other
" 550 Civil Rights
" 555 Prison Condition
" 560 Civil Detainee Conditions of
Confinement
" 625 Drug Related Seizure

of Property 21 USC 881
" 690 Other
BANKRUPTCY
" 422 Appeal 28 USC 158
" 423 Withdrawal
28 USC 157
PROPERTY RIGHTS
" 820 Copyrights
" 830 Patent
" 840 Trademark
LABOR
" 710 Fair Labor Standards
Act
" 720 Labor/Management
Relations
" 740 Railway Labor Act
" 751 Family and Medical
Leave Act
" 790 Other Labor Litigation
" 791 Employee Retirement
Income Security Act
"
"
"
"
"
SOCIAL SECURITY
861 HIA (1395ff)
862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(g))
FEDERAL TAX SUITS

" 870 Taxes (U.S. Plaintiff
or Defendant)
" 871 IRSThird Party
26 USC 7609
IMMIGRATION
" 462 Naturalization Application
" 465 Other Immigration
Actions
OTHER STATUTES
" 375 False Claims Act
" 376 Qui Tam (31 USC
3729(a))
" 400 State Reapportionment
" 410 Antitrust
" 430 Banks and Banking
" 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
V. ORIGIN (Place an X in One Box Only)

" 1 Original
Proceeding
" 2 Removed from

State Court
" 3
Remanded from
Appellate Court
" 4 Reinstated or
Reopened
" 5 Transferred from

Another District
" 6 Multidistrict
Litigation Transfer
(specify)
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
" 8 Multidistrict
Litigation Direct File
35 U.S.C. 271
VI. CAUSE OF ACTION Brief description of cause:

Patent infringement
" CHECK IF THIS IS A CLASS ACTION

VII. REQUESTED IN
UNDER RULE 23, F.R.Cv.P.
COMPLAINT:
VIII. RELATED CASE(S)
(See instructions):
IF ANY
JUDGE
DATE
CHECK YES only if demanded in complaint:

" Yes
" No
JURY DEMAND:
DEMAND $
75,000.00
DOCKET NUMBER
SIGNATURE OF ATTORNEY OF RECORD
/s/John F. Bennett
12/09/2016
FOR OFFICE USE ONLY
RECEIPT #
AMOUNT
APPLYING IFP
JUDGE
MAG. JUDGE

Fecon v. King Kong Tool - Complaint

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Case: 1:16-cv-01137-TSB Doc #: 1 Filed: 12/09/16 Page: 1 of 16 PAGEID #: 1

IN THE UNITED STATES DISTRICT COURT

KING KONG TOOLS, LLC

Not only is Defendant King Kong Tools' misappropriation unethical, it violates a

Case: 1:16-cv-01137-TSB Doc #: 1 Filed: 12/09/16 Page: 2 of 16 PAGEID #: 2

Fecon is an Ohio corporation having an office and principal place of business at

3460 Grant Drive, Lebanon, Ohio 45036.

Defendant King Kong Tools Germany is a German corporation. On information

Case: 1:16-cv-01137-TSB Doc #: 1 Filed: 12/09/16 Page: 3 of 16 PAGEID #: 3

In addition, Defendants have consented in a non-disclosure agreementexecuted

Fecon is the owner of the '124 patent by assignment.

Fecon is the industry leader in forestry mulching attachments.

with the Fecon mulcher attached:

Case: 1:16-cv-01137-TSB Doc #: 1 Filed: 12/09/16 Page: 4 of 16 PAGEID #: 4

images of three such Fecon teeth:

FGT Double Carbide

FGT Severe Duty

FGT Samurai Knife

Case: 1:16-cv-01137-TSB Doc #: 1 Filed: 12/09/16 Page: 5 of 16 PAGEID #: 5

Defendant King Kong Agrees to Supply Products for Fecon

In anticipation of such a business relationship, on or about February 20, 2009,

Case: 1:16-cv-01137-TSB Doc #: 1 Filed: 12/09/16 Page: 6 of 16 PAGEID #: 6

In reliance on Defendant King Kong Tools' promises, Fecon disclosed to

Fecon's confidential and proprietary drawings to manufacture the teeth.

King Kong Toolswithout notifying Feconswitched to a Chinese manufacturer. Fecon began

Case: 1:16-cv-01137-TSB Doc #: 1 Filed: 12/09/16 Page: 7 of 16 PAGEID #: 7

Despite Defendant King Kong Tools' promises in the Non-disclosure Agreement,

novel design covered by the '124 patent.

obtained online (http://www.kingkong-tools.com) of Defendant King Kong Tools' unauthorized

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Figure from '124

On information and belief, Defendant King Kong Tools is marketing, advertising,

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The Non-disclosure Agreement is a valid and enforceable contract supported by

Fecon fully performed its obligations under the Non-disclosure Agreement.

Defendant King Kong Tools used Fecon's confidential information to compete

with Fecon and to sell competitive products.

amount exceeding $75,000 to be determined at trial.

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Fecon's confidential and proprietary drawings provide Fecon with a valuable

As a result, these confidential and proprietary drawings derive independent

Defendant King Kong Tools misappropriated Fecon's trade secrets regarding

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Fecon's products manufactured from these confidential and proprietary drawings

Defendant King Kong Tools' use of Fecon's trade secrets constitutes

misappropriation under Ohio Rev. Code 1333.61.

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Defendant King Kong Tools' misappropriation also has damaged Fecon in an

amount exceeding $75,000 to be determined at trial.

Although Fecon has no affiliation, connection, or association with Defendant

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These statements and representations by Defendant King Kong Toolsgiven the

to deceive a substantial segment of their audiences.

and non-functional appearance of Fecon's teethwhich identifies the teeth as originating

purchasing decisions of Defendant King Kong Tools' customers.

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statements all entered interstate commerce.

Further, Fecon is entitled to its reasonable attorney's fees under 15 U.S.C.

In selling, describing, and representing the unauthorized teeth, Defendant King

substantial segment of the customers and potential customers.

to deceive a substantial segment of their audiences.

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misrepresentations occurred within the State of Ohio.

Adjudging that Defendants have infringed the '124 patent;