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Gregg A. Rapoport (SBN 136941)
Law Offices otGregg A. Rapoport, APLC
135 West Green Street, Suite 100
Pasadena, California 91105
Tel. 626-585-0155; Fax 626-585-0355
[email protected]
Constance R. Lindman (pro hac vice application pendine}_------
SmithAmundsen LLC !!l' -----
201 North Illinois Street
South Tower, 16th Floor
Indianapolis, Indiana 46204
Tel. 317-927-3602; Fax 312-997-1872
[email protected]
Attorney for Plaintiffs
SPICY BEER MIJS INC., GREGORY
MURKIJANIAN,
PREMIER FOODS, LLC
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISIOL
SPICY BEER MIX, INC. a California easY J...4 - 7 2 0 0 DtJ gilt
cO!poration, GREGORY
MURKIJANIAN, SR., an individual, and
PREMIER FOODS, LLC, COMPLAINT FOR:
Plaintiffs,
vs.
NEW CASTLE BEVERAGE, INC., a
California co!poration, and RICKY D.
MONUGIAN, an individual,
(1) DECLARATORY JUDGMENT
FOR PATENT INVALIDITY
(2) DECLARATORY JUDGMENT
FOR INEQUITABLE
CONDUCT;
(3) VIOLATION OF THE UNFAIR
Defendants. COMPETITION LAW; AND
(4) DECLARATORY JUDGMENT
RE TRADE SECRETS
MISAPPROPRIATION
Plaintiffs Spicy Beer Mix, Inc. ("SBMI"), Gregory Murkijanian, Sr.
("Murkijanian"), and Premier Foods, LLC ("Premier") aver the following for their
claims against Defendants Ricky D. Monugian ("Monugian") and New Castle
Beverage, Inc. ("NCBI"):
-1-
COMPLAINT
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-2-
COMPLAINT
JURISDICTION AND VENUE
1. This Court has subject matter jurisdiction over certain of these claims
pursuant to 28 U.S.C. 1331, 1338 and 1367; in that, certain claims arise under
the patent laws of the United States, 35 U.S.C. 1 et seq., and supplemental
jurisdiction exists because other claims are so related to claims as to which the
District Court has original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution, as alleged below.
2. Venue is proper in this Court pursuant to 28 U.S.C. 1391(b); in that
Defendant Monugian resides in this district and Defendant NCBI has its principal
place of business within this district.
THE PARTIES
3. Plaintiff SBMI is a California corporation with its principal place of
business in the City of Whittier, California.
4. Plaintiff Murkijanian is an individual with his residence in the City of
Whittier, California.
5. Plaintiff Premier is a California limited liability company with its
principal place of business in the City of Santa Fe Springs, California.
6. On information and belief, Defendant Monugian is an individual
residing in the State of California.
7. On information and belief, Defendant NCBI is a California
corporation with its principal place of business at 1115 Centre Drive, City of
Industry, California 91789.
8. Monugian is the named inventor of U.S. Patent Nos. D652,681 (the
681 Patent) and D682,035 (the 035 Patent). True and correct copies of these
patents are attached hereto.
9. On information and belief, Monugian asserts that he is the licensor of
the 681 Patent and that NCBI is the exclusive licensee of the 681 Patent.
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COMPLAINT
FIRST CLAIM FOR RELIEF
(Declaratory Judgment For Patent Invalidity)
10. Plaintiffs incorporate the averments set forth in the preceding
paragraphs as though set forth fully in this paragraph.
11. On information and belief, Monugian filed the original application for
the 681 Patent on October 6, 2010, and filed the original application for the035
Patent on November 10, 2011.
12. On information and belief, products bearing the trademarks
ANTROS MIX, MICHELADAS ANTROS MIX and MICHELADAS
ANTROS MIX HOT (collectively, the ANTROS MIX Products) were in
public use, on sale, or otherwise available to the public before the effective filing
date of the claimed inventions, and at least as early as J uly 1, 2009.
13. The ANTROS MIX Products are substantially the same as the
inventions claimed in the 681 Patent and the035 Patent to the ordinary observer.
14. On information and belief, the product shown in the video HOW to
make a MIchelada Mexican Beer Drink at
http://www.youtube.com/watch?v=vrPSHxD89CU (the Michelada Video
Product) was in public use, on sale, or otherwise available to the public before the
effective filing date of the claimed inventions, and at least as early as February 25,
2007.
15. The Michelada Video Product is substantially the same as the
inventions claimed in the 681 Patent and the035 Patent to the ordinary observer.
16. On information and belief, Monugian was aware that the ANTROS
MIX Products, the Michelada Video Product, or other similar products were in
public use, on sale, or otherwise available to the public before the effective filing
date of the claimed inventions during the prosecution of the 681 Patent and the
035 Patent.
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-4-
COMPLAINT
17. On information and belief, one or more cups similar to the cups
shown in the 681 Patent and the 035 Patent were in public use, on sale, or
otherwise available to the public in this country by Dart Container (the Prior Art
Cups) at least as early as J anuary 12, 2006. The Prior Art Cups are substantially
the same as the cup portion of the invention claimed in the 681 Patent and the
035 Patent to the ordinary observer.
18. On information and belief, one or more lids similar to the lid shown in
the 681 Patent and the 035 Patent (the Prior Art Lids) were in public use, on
sale, or otherwise available to the public in this country at least as early as March
30, 2005. The Prior Art Lids are substantially the same as the lid portion of the
inventions claimed in the 681 Patent and the 035 Patent to the ordinary observer.
19. On information and belief, Monugian was aware that the Prior Art
Cups and the Prior Art Lids or other similar products were in public use, on sale, or
otherwise available to the public in this country during the prosecution of the 681
Patent and the 035 Patent.
20. On information and belief, the 681 Patent and the 035 Patent are
each invalid under the United States patent laws for one or more of the following
reasons:
(a) The alleged inventions claimed in the 681 Patent and the 035
Patent were known or used by others in this country or patented or described in a
printed publication in this or a foreign country before the alleged invention thereof
by the applicant for the patents, in violation of 35 U.S.C. 102(a).
(b) The alleged inventions claimed in the 681 Patent and 035
Patent were patented or described in a printed publication in this or a foreign
country or was in public use or on sale in this country more than one year prior to
the date the original applications for patents were filed in the United States, in
violation of 35 U.S.C. 102(b).
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COMPLAINT
(c) The applicant for the 681 Patent and the 035 Patent did not
himself invent the inventions claimed in the patents, as required by 35 U.S.C.
102(f).
(d) The alleged inventions claimed in the 681 Patent and 035
Patent were made in this country by another who had not abandoned, suppressed or
concealed it in violation of 35 U.S.C. 102(g).
(e) The differences between the alleged inventions claimed in the
681 Patent and 035 Patent and the prior art are such that the subject matter as a
whole would have been obvious at the time the alleged invention was made to a
person having ordinary skill in the art to which said subject matter pertains in
violation of 35 U.S.C. 103.
(f) The applicant failed to disclose material prior art in violation of
37 CFR 1.56.
(g) The inventions claimed in the 681 Patent and 035 Patent are
functional and not entitled to patent protection under 35 U.S.C. 171.
21. An actual and justiciable controversy, within the meaning of 28
U.S.C. 2201, exists between Plaintiffs on the one hand and Defendants on the
other hand concerning the validity of the 681 Patent and the 035 Patent; in that
Defendants have previously alleged patent infringement claims in this Court
against Plaintiffs (in Case No 13-CV-02055 SJ O(J EMx)), dismissing those claims
without prejudice only when confronted with the above-alleged grounds for
invalidity, and nevertheless have continued to assert to beverage distributors and
retailers in the market for spicy beverage cup products, such as those produced by
SBMI, that Plaintiffs have exclusive rights to produce, advertise, and sell spicy
beverage cups based upon these patents, and have thereby continued to injure
Plaintiffs by hindering SBMIs ability to generate sales of its product, by damaging
Plaintiffs reputations, and by reducing Premiers production revenues.
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-6-
COMPLAINT
22. Plaintiffs are entitled to a declaratory judgment that the 681 Patent
and the 035 Patent are each invalid under the United States patent laws.
SECOND CLAIM FOR RELIEF
(Declaratory Judgment For Inequitable Conduct)
23. Plaintiffs incorporate the averments set forth in the preceding
paragraphs as though set forth fully in this paragraph.
24. On information and belief, Monugian was aware that the ANTROS
MIX Products, the Michelada Video Product, or other similar products were in
public use and on sale in this country during the prosecution of the 681 Patent and
the 035 Patent.
25. On information and belief, Monugian was aware that the Prior Art
Cups and the Prior Art Lids or other similar products were in public use and on
sale in this country during the prosecution of the 681 Patent and the 035 Patent.
26. On information and belief, the Prior Art constitutes non-cumulative
material prior art relevant to the claims of the 681 Patent and the 035 Patent
because they embody the inventions shown in the 681 Patent and the 035 Patent.
Alternatively, the Prior Art makes the combination of elements claimed in the 681
Patent and the 035 Patent obvious to a person of ordinary skill in the art.
27. On information and belief, Monugian was associated with the filing
and prosecution of the 681 Patent application and the 035 Patent application as a
result of his position as the named inventor of the invention claimed in the 681
Patent and the 035 Patent.
28. On information and belief, Monugian did not disclose the Prior Art to
the United States Patent Office during the prosecution of the 681 Patent and the
035 Patent, as required by 37 C.F.R. 1.56.
29. On information and belief, the 681 Patent and the 035 Patent are
each unenforceable because Monugian engaged in inequitable conduct by failing to
comply with his duty to disclose to the United States Patent Office all non-
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-7-
COMPLAINT
cumulative material prior art of which he was aware during the prosecution of the
681 Patent and the 035 Patent.
30. On information and belief, had Monugian disclosed the Prior Art, the
United States Patent Office would have rejected the claimed inventions as obvious
over the Prior Art alone or in combination.
31. An actual and justiciable controversy, within the meaning of 28
U.S.C. 2201, exists between Plaintiffs on the one hand and Defendants on the
other hand concerning the enforceability of the 681 Patent and the 035 Patent; in
that Defendants have previously alleged patent infringement claims in this Court
against Plaintiffs (in Case No 13-CV-02055 SJ O(J EMx)), dismissing those claims
without prejudice only when confronted with the above-alleged grounds for
invalidity, and nevertheless have continued to assert to beverage distributors and
retailers in the market for spicy beverage cup products, such as those produced by
SBMI, that Plaintiffs have exclusive rights to produce, advertise, and sell spicy
beverage cups based upon these patents, and have thereby continued to injure
Plaintiffs by hindering SBMIs ability to generate sales of its product and by
reducing Premiers production revenues.
32. Plaintiffs are entitled to a declaratory judgment that the 681 Patent
and the 035 Patent are each unenforceable under the United States patent laws.
THIRD CLAIM FOR RELIEF
(Violation of the Unfair Competition Law)
33. Plaintiffs incorporate the averments set forth in the preceding
paragraphs as though set forth fully in this paragraph.
34. Subject matter jurisdiction over this claim exists pursuant to 28 U.S.C.
1367; in that, this Court has supplemental jurisdiction this claim because it is so
related to claims in this action within this Courts original jurisdiction that they
form part of the same case or controversy under Article III of the United States
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COMPLAINT
Constitution, based upon a common nucleus of operative facts such that a plaintiff
would ordinarily be expected to try them all in a single judicial proceeding.
35. On information and belief, Defendants are engaged in a campaign to
drive out competition in the spicy beverage cup market by threatening to sue
Plaintiffs distributors, retailers and suppliers, as well as those of other makers of
similar products, for patent infringement, citing exclusive rights under the invalid
681 Patent and/or 035 Patent, and thereby unjustifiably are interfering with
competitors actual and prospective economic relationships with their distributors,
customers, and suppliers.
36. Based on the conduct alleged above, Defendants have engaged in
unfair business practices in violation of Sections 17200 et seq. of the California
Business & Professions Code.
37. Defendants conduct, as alleged above, is unfair, illegal, immoral,
unethical, oppressive, unscrupulous and substantially injurious to consumers and to
competitors in the spicy beverage cup market.
38. Defendants conduct should be enjoined to prevent further losses and
damages at the hands of such conduct.
39. Defendants should be made to pay Plaintiffs reasonable attorneys
fees and costs incurred in prosecuting the action.
FOURTH CLAIM FOR RELIEF
(Declaratory Judgment Re Trade Secrets Misappropriation)
40. Plaintiff incorporates the averments set forth in the preceding
paragraphs as though set forth fully in this paragraph.
41. Subject matter jurisdiction over this claim exists pursuant to 28 U.S.C.
1367; in that, this Court has supplemental jurisdiction this claim because it is so
related to claims in this action within this Courts original jurisdiction that they
form part of the same case or controversy under Article III of the United States
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COMPLAINT
Constitution, based upon a common nucleus of operative facts such that a plaintiff
would ordinarily be expected to try them all in a single judicial proceeding.
42. On information and belief, Defendant NCBI manufactures and sells
within the United States a product known as a spicy beverage cup, which is a
disposable cup containing a dry chile-powder mixed substance, some of which is
affixed to the rim area of the cups. A consumer will pour beer into the cup,
creating a Mexican-style beverage commonly known as a Michelada drink.
43. On information and belief, Defendants NCBI and Monugian claim
exclusive rights to make, use, sell, and offer to sell NCBIs spicy beverage cup as a
matter of trade secrets laws.
44. Plaintiff SBMI manufactures and sells a spicy beverage cup product
within the United States.
45. On information and belief, Defendants NCBI and Monugian have
asserted a claim against SBMI and others pursuant to the California Uniform Trade
Secrets Act, California Civil Code sections 3426 et seq., including but not limited
to within Los Angeles County Superior Court Case No. GC051058 (the State
Court Trade Secrets Action), alleging that NCBIs spicy beverage cup product is
made using the following alleged trade secrets, which are owned by Monugian and
exclusively licensed to NCBI: (1) a process of applying a secret solution to the
inner and outer surfaces adjacent the lip of a beverage cup to permit a first mixture
of spices to adhere to those surfaces; (2) an apparatus ... that distributes the
secret solution to the inner and outer surfaces adjacent the lip of a beverage cup;
and (3) a sequence in which pre-determined quantities of the ingredients of a
second mixture are blended. (These are referred to herein as the Alleged Trade
Secrets.)
46. On information and belief, in the State Court Trade Secrets Action,
NCBI and Monugian assert, inter alia, that the alleged trade secret apparatus is
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COMPLAINT
valuable and not commonly known, by virtue of its patentability, as alleged
therein.
47. On information and belief, in the State Court Trade Secrets Action,
NCBI and Monugian assert that they have protected the secrecy of the Alleged
Trade Secrets by a variety of reasonable means.
48. On information and belief, in the State Court Trade Secrets Action,
NCBI and Monugian assert that Plaintiffs have misappropriated and continue to
misappropriate the Alleged Trade Secrets in connection with the manufacture and
sale of SBMIs spicy beverage product, and seek damages and injunctive relief.
49. In the State Court Trade Secrets Action, SBMI, Murkijanian, and
Premier, have denied the material allegations made by NCBI and Monugian.
50. An actual and justiciable controversy, within the meaning of 28
U.S.C. 2201, exists between Defendants NCBI and Monugian on the one hand
and Plaintiffs on the other hand concerning the merits of Defendants claim of
trade secrets misappropriation and Plaintiffs defenses thereto, including but not
limited to within the State Court Trade Secrets Action.
51. Plaintiffs are entitled to a declaratory judgment that they are not liable
for trade secret misappropriation.
PRAYER FOR RELIEF
Plaintiffs respectfully request judgment in their favor and against Defendants
as follows:
1. Declaring that the claim of the 681 Patent is invalid;
2. Declaring that the claim of the 035 Patent is invalid;
3. Declaring that the claim of the 681 Patent is unenforceable as a result
of inequitable conduct;
4. Declaring that the claim of the 035 Patent is unenforceable as a result
of inequitable conduct;
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5. Finding this an "cxceptional" case under 35 U.S.C. and
awarding Plaintiffs their expenses, costs and attorneys' fees;
6. For an injunction barring Defendants from asserting exclusive rights
to manufacture and sell spicy beverage cups bascd Defendants' claims under upon
the '681 Patent and the '035 Patent.
7.

9.
Declaring that Plaintiff is not liable for Lrade secret misappropriation.
For an award of costs and attorney's fees as allowed by law.
Awarding Plaintiffs such other and further relief as the Court deems
just and proper.
Gregg A. Rapoport
Attorney For PJainLi l'fs
SPICY BEER MIX, INC., GREGORY
MURKIJANIAN, SR., and
PREMIER FOODS, LLC
-Il-
l AJNT
111111 1111111111111111111111111111111111111111111111111111111111111
(12) United States Design Patent
Monugian
(54) BEVERAGE HOLDER
(76) Inventor: Ricky D. Monugian, Ontario, CA (US)
(**) Term: 14 Years
(21) Appl. No.: 29/372,035
(22) Filed: Oct. 6, 2010
(51) LOC (9) Cl. .................................................. 07-01
(52) U.S. Cl. ........................................................ D7/510
(58) Field of Classification Search ................... D7/51O,
D7/511, 500, 532, 900; 2151121,382,388,
215/387; 220/674,715,713,718,592.16,
220/592.17,709,708; D9/551,529
See application file for complete search history.
(56) References Cited
U.S. PATENT DOCUMENTS
2,782,614 A * 211957 Currie ........................... 2201718
6,202,877 Bl * 3/2001 La Torre et al. ............ 220/254.1
D466,371 S * 12/2002 Parker ............................ D7/510
D472,101 S * 312003 Janky ............................. D7/532
USOOD652681S
(10) Patent No.: US D652,681 S
** Jan.24,2012 (45) Date of Patent:
D535,151 S *
D586,182 S *
D622,546 S *
D639,166 S *
* cited by examiner
112007 Seum et al. .................... D7/510
2/2009 Trombly ........................ D7/510
812010 Bodum .......................... D7/510
6/2011 Carreno ......................... D9/504
Primary Examiner - Cynthia Underwood
(57) CLAIM
The ornamental design for a beverage holder, as shown and
described.
DESCRIPTION
FIG. 1 is a Perspective view of a beverage holder showing my
new design;
FIG. 2 is a front view of my new design illustrated in FIG. 1;
the rear view of my new design is the mirror image of the front
view;
FIG. 3 is a top view thereof; and,
FIG. 4 is a bottom view thereof.
The broken lines represent portions of the environment and
form no part of the claim.
1 Claim, 4 Drawing Sheets
1
1
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FIG.1
1
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u.s. Patent Jao.24,2012 Sheet 2 of 4
FIC.2
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US D652,681 S
u.s. Patent Jao.24,2012 Sheet 3 of 4 US D652,681 S
FIG. 3
u.s. Patent Jao.24,2012 Sheet 4 of 4 US D652,681 S
FIC.4
111111 1111111111111111111111111111111111111111111111111111111111111
(12) United States Design Patent
Monugian
(54) BEVERAGE HOLDER
(76) Inventor: Ricky D. Monugian, Ontario, CA (US)
14 Years
(21) App!. No.: 29/395,023
(22) Filed: Nov. 10, 2011
(51) LOC(9)CI. ................................ ... ... ... ... ...... 07-01
(52) U.S. C1.
USPC .............................................. .. ... ... ..... D7/523
(58) Field of Classification Search ................... 07/528,
07/526, 525, 530, 531, 532, 300, 300.2, 533,
07/510,523,507,511,509; 220/592.17,
220/592.16,495.03; 426/88
See application file for complete search history.
(56) References Cited
U.S. PATENT DOCUMENTS
0488.672 S
'::
4/2004 Oas ................................ 07/507
0489,501 S
'::
5/2004 Oretzka ........................... 034/1
0554.822 S
:!:
1112007 Oretzka ........................... 034/1
0561.535 S " 212008 .lin .................... ... ......... 07/531
0581.738 S
'::
12/2008 Bodum .......................... 07/523
0582,724 S
'::
12/2008 Oretzka ......... 07/523
0640,094 S " 6/2011 Carl son et al. ................. 07/510
USOOD682035S
(10) Patent No.: US D682,035 S
** May 14, 2013
(45) Date of Patent:
':: 1112011 Chiu et al. ..................... 07/510 0648.985 S
0652.681 S '::
0655.982 S :;:
112012 Monugian ...................... 07/510
3/2012 Liu .... ...... .......... ...... . .... 07/509
* cited by examiner
Primary Examiner - George 0 Kirschbaum
Assistant Examiner - Janice Hallmark
(57) CLAIM
The ornamental design for a beverage holder, as shown and
described.
DESCRIPTION
FIG. 1 is a perspective view ofa beverage holder showing my
new design;
FIG. 2 is a front view of my new design illustrated in FIG. 1;
the rear view of my new design is the mirror image of the front
vIew;
FIG. 3 is a top view thereof; and,
FIG. 4 is a bottom view thereof.
The broken line showing in FIG. 4 of the bottom of the
beverage holder is included for the purpose of illustrating
portions of the Beverage Holder and forms no part of the
claimed design.
1 Claim, 4 Drawing Sheets
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FIC.1
u.s. Patent May 14, 2013 Sheet 2 of 4 US D682,035 S
FIC.2
u.s. Patent May 14, 2013 Sheet 3 of 4 US D682,035 S
FIG. 3
u.s. Patent May 14,2013 Sheet 4 of 4 US D682,035 S
FIC.4