FLIR Systems, Inc. v. Sierra Media, Inc. et al

Filing 1

Complaint. Filing Fee in amount of $350 collected. Receipt No. 35291. Summons issued as to Sierra Media, Inc. and Fluke Corporation. Jury Trial Requested: Yes. Filed by FLIR Systems, Inc. against Fluke Corporation, Sierra Media, Inc.. (Attachments: # 1 Civil Cover Sheet, # 2 Issued Summons (Fluke Corporation), # 3 Issued Summons (Sierra Media)) (eo)

hristopher J. Lewis, OSB #003079 Email [e-mail] Devon Zastrow Newman, OSB #014627 Email [e-mail] SCHWABE, WILLIAMSON & WYATT, P.c. 1211 SW 5th Ave., Suite 1900 Portland, OR 97204 Telephone [phone] Fax [phone] William A. Brewer III, pro hac vice pending Email [e-mail] Michael J. Collins, pro hac vice pending Email [e-mail] BICKEL & BREWER 4800 Comerica Bank Tower 1717 Main Street Dallas, TX 75201-4612 Telephone [phone] Fax [phone]
Of Attorneys for Plaintiff FLIR Systems, Inc.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION
FLIR SYSTEMS, INC., an Oregon corporation, Plaintiff, vs. SIERRA MEDIA, INC. , a Washington corporation, and FLUKE CORPORATION, a Washington corporation Defendants.

CV '1.0 - 97 1 HU

Case No. - - - - - - PLAINTIFF FLIR SYSTEMS, INC. 'S ORIGINAL COMPLAINT Lanham Act/Trademark AND DEMAND FOR JURY TRIAL

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PLAINTIFF FLIR SYSTEMS, INC.'S ORIGINAL COMPLAINT AND JURY DEMAND

1-c)rJ\\
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SCHWABE . WILLIAM SO N & WYAn, PC Att orneys at Law Pacw8st Center 1211 SW 5thAve., Suite 1900
Portland, OR 97204
Telephone [phone] Fax [phone]

Plaintiff FUR Systems, Inc. ("FUR") files this Original Complaint and Jury Demand against defendants Sierra Media, Inc. ("Sierra") and Fluke Corporation ("Fluke") (together, "Defendants"), upon personal knowledge as to its acts and upon information and belief as to all other matters, as follows:
I.

PRELIMINARY STATEMENT
FUR is the world leader in the design, manufacturing, and marketing of thermal imaging cameras. Fluke is a competitor of FUR which is unable to compete effectively against FUR on the basis of price, quality, and service. Fluke, therefore, has resorted to disparaging FUR to potential customers by making false claims regarding the durability of FUR's cameras. For example, Fluke, with the assistance of defendant Sierra, has produced and distributed an intentionally misleading video concerning the durability of FUR's cameras relative to its own. The "test" shown in the video was "arranged" by Defendants to create the false impression that an independent test was run by Sierra to determine whether the thermal imaging cameras manufactured by FUR, Fluke, and another manufacturer were the most durable. In fact, the test was neither independently run nor fairly administered. In addition, Fluke has made accusations of trademark infringement and threatened to sue FUR unless it acceded to Fluke's demand that FUR cease use of certain descriptive terms when describing its own products. As FUR advised Fluke more than two years ago: (1) Fluke's alleged marks are not valid; and (2) FUR has not misled consumers as to the origins of the FUR products. By this action, FUR seeks to enjoin Defendants from continuing their wrongful conduct, invalidate Fluke's alleged trademark, and obtain damages for Defendants' wrongful conduct. Page 2PLAINTIFF FUR SYSTEMS, INC.'S ORIGINAL COMPLAINT AND JURY DEMAND
SCHWABE. WILLIAMSON & WYAn, P.C.
Attorneys at Law Pacwest Center

1211 SW5thAve., Suite 1900 Portland, OR 97204 Telephone [phone] Fax [phone]

II.

PARTIES
A.

Plaintiff
1. FUR is a corporation organized under the laws of the State of Oregon with its

principal place of business in Wilsonville, Oregon.
B.

Defendants
2. Defendant Sierra Media, Inc. is incorporated in the State of Washington, has its

principal place of business in Everett, Washington, and may be served by serving its registered agent, Daniel Cardenas, for service of process, at 2802 Wetmore Ave, Suite 211, Everett, Washington 98201. 3. Defendant Fluke Corporation is incorporated in the State of Washington, has its

principal place of business in Everett, Washington, and may be served by serving CT Corporation System, its registered agent for service of process, at 1801 West Bay Dr NW, Suite 206, Olympia, Washington, 98502.

III.
JURISDICTION AND VENUE

4. Pursuant to 28 U.S.c. § 1331 and 28 U.S.c. § 1367, the Court has jurisdiction

over the subject matter of this action. 5. The Court also has jurisdiction under 28 U.S.C. § 1332 because FUR is a citizen

of the State of Oregon while Defendants are both citizens of the State of Washington and the amount in controversy exceeds $75,000. 6. The Court has general personal jurisdiction over defendant Sierra because it has

substantial, continuous, and systematic contacts with the State of Oregon and has availed itself of Page 3 PLAINTIFF FUR SYSTEMS, INC.'S ORIGINAL COMPLAINT AND JURY DEMAND
SCHWABE, WILLIAMSON & WYAn, P.C .
Attorneys at Law Pacwest Center

1211 SW 5th Ave., Suite 1900 Portland, OR 97204 Telephone [phone] Fax [phone]

the privilege of conducting activities in the State of Oregon. Indeed, Sierra engages in business nationwide, including in Oregon. In addition, the Court has specific personal jurisdiction over Sierra because Sierra committed intentional torts in Oregon, the brunt of the resulting harm occurred in Oregon because FUR is an Oregon corporation and its principal place of business is in Oregon, and Sierra's tortious conduct was expressly aimed at FUR, an Oregon corporation. 7. The Court has general personal jurisdiction over defendant Fluke because it has

substantial, continuous, and systematic contacts with the State of Oregon and has availed itself of the privilege of conducting activities in the State of Oregon. Indeed, Fluke engages in business nationwide, including in Oregon. In addition, the Court has specific personal jurisdiction over Fluke because Fluke committed intentional torts in Oregon, the brunt of the resulting harm occurred in Oregon because FUR is an Oregon corporation and its principal place of business is in Oregon, and Fluke's tortious conduct was expressly aimed at FUR, an Oregon corporation. 8. Pursuant to 28 U.S.c. § 1391(b)(2), venue in this district is proper because,

among other things, a substantial part of the events giving rise to this action occurred in this judicial district and at least one defendant may be found in this district.

IV.

FACTUAL BACKGROUND
A. FLIR And Its Business 9. products. FUR is a global leader in infrared cameras, night vision, and thermal imaging Its products are sold in a wide range of industrial, commercial, and government

markets around the world. As a pioneer in the commercial infrared camera industry, FUR has supplied thermography and night vision equipment to scientific laboratories, industrial buyers, law enforcement organizations, and the military for over thirty years. Page 4 PLAINTIFF FUR SYSTEMS, INC.'S ORIGINAL COMPLAINT AND JURY DEMAND
SCHWABE, WILLIAMSON & w(ATI. P.C. Attorneys at law Pacwest Center 1211 SW5thAve., Suite 1900 Portland, OR 97204 Telephone [phone] Fax [phone]

B.

Defendant Sierra 10. Sierra is a media and marketing company for Fluke. Fluke is one of Sierra's

largest customers. Sierra assisted Fluke in publishing the false and misleading advertisement and promotional campaign at issue. C. Defendant Fluke 11. Fluke-a wholly-owned subsidiary of Danaher Corporation, a publicly traded

company-is in the business of manufacturing, distributing, and servicing electronic test tools and software. In addition, Fluke manufactures and distributes thermal imaging cameras that

compete with FUR's products in interstate commerce. D. Defendants Conspire To Defame FLIR And Its Products. 12. In approximately March 2010, Defendants published a commercial advertisement

that purported to compare thermal imaging equipment manufactured by Fluke to thermal imaging equipment manufactured by FUR (the "Video"). The Video was aired on YouTube and made available for viewing on Fluke's website. The Video includes a "test" which purports to compare the durability and reliability of one Fluke thermal imaging camera-the Fluke Ti32 (the "Fluke Camera"}-to three of FUR's thermal imaging cameras-FUR 1-7, FUR 1-60, and FUR T -400 (the "FUR Cameras"). That "test" was represented as having been conducted by Sierra at Fluke's request. 13 . Through their Video, Defendants intentionally create the impression that the

Fluke Camera is more durable, reliable, and of higher quality than FUR Cameras. In the Video, Defendants claim to have tested the durability, quality, and reliability of these thermal imaging cameras by dropping them from a height of 2 meters onto a concrete floor. In the Video, it

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PLAINTIFF FUR SYSTEMS, INC. 'S ORIGINAL COMPLAINT AND JURY DEMAND

SCHWABE, WILLIAMSON & WYATT, P.C .
Attorneys at law Pacwest Center

1211 SW 51h Ave., Suite 1900 Portland, OR 97204 Telephone [phone] Fax [phone]

appears that the FUR Cameras break apart upon impact, whereas the Fluke Cameras remain intact and operable. 14. The video is false and misleading. In fact, the "test" shown in the Video was not In addition, this test was

conducted independently by Sierra but at the direction of Fluke.

fabricated by Defendants to create the false impression that when those thermal imaging cameras were dropped onto a concrete floor, the FUR Cameras broke apart, whereas the Fluke Camera remained intact. In particular, the FUR Cameras were manipulated by Defendants to break apart upon impact with the concrete floor, and in some instances were manipulated to break even prior to impact with the concrete floor. 15. Defendants intentionally created and published the deliberately false Video for the

purpose of deceiving potential consumers of such products and causing injury to FUR. E. Adding Insult To Injury: Alleged Trademark. 16. Fluke Falsely Accuses FLIR Of Infringing Fluke's

When FUR became aware of the Video, representatives of FUR contacted Sierra

to learn more about the testing that was conducted. A representative of Sierra disclosed that Fluke had managed the production of the Video and that all questions should be directed to Fluke. This representation conflicts with the statements made in the Video that Fluke contracted with Sierra to "perform and film an independent, third party drop test. ..." 17. After FUR's communications with Sierra, by letter dated August 5, 2010, Fluke

falsely accused FUR of infringing its alleged trademark-IR FUSION-for which Fluke owns a federal trademark registration-Federal Reg. No. 3,442,328 (the "Alleged Trademark"). Among other things, Fluke demanded that FUR immediately cease use of the terms IR Fusion, FUR Fusion, FUR's Fusion, FUR's Fusion Technology, Fusion Technology by FUR, FUR' s

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PLAINTIFF FUR SYSTEMS, INC.'S ORIGINAL COMPLAINT AND JURY DEMAND

SCHWABE, WILLIAMSON & WYATT, PC Attorneys at Law Pacwest Center 1211 SW5thAve., Suite 1900 Portland, OR 97204 Telephone [phone] Fax [phone]

Thermal Fusion, Fusion by FUR, and all similar terms or phrases and threatened to assert claims against FUR for trademark infringement and unfair competition. 18. Those false allegations are without merit. Indeed, when Fluke originally raised

them more two years ago, FUR notified Fluke that: (1) the Alleged Trademark is not valid; (2) FUR had not made use of "IR Fusion" in a trademark sense, but instead, used the term only in its generic descriptive sense to aptly describe its own products; and (3) it would continue to promote its fusion functionality. otherwise complain. 19. Fluke's current demand is premised on a handful of allegedly infringing materials, During the intervening period, Fluke did not file suit or

only two of which Fluke even contends FUR published. Those materials, however, demonstrate that: (1) confusion in the market between FUR's products and Fluke's is not likely; (2) "IR Fusion" and "Fusion" have been used to aptly describe FUR's own products and technology which allow users to see infrared images and visible light images fused together. In other words, use of "IR Fusion" by FUR is not likely to confuse consumers and, in fact, constitutes "classic fair use"; and (3) the term "IR Fusion" is merely generic and descriptive. F. The Damage Done 20. FUR is likely to suffer, has suffered, and continues to suffer irreparable harm

based on Defendants' wrongful conduct. In fact, Defendants' deliberately false and misleading Video remains available for viewing on YouTube and Fluke's website. This false and

misleading advertisement was intended to influence, has influenced, and is likely to continue influencing potential customers of FUR products by creating a false impression concerning the quality, reliability, and durability of FUR's products, including the false impression that the FUR Cameras are not as durable or reliable as the Fluke Camera. Moreover, as a result of Page 7 PLAINTIFF FUR SYSTEMS, INC. 'S ORIGINAL COMPLAINT AND JURY DEMAND
SCHWABE, WILLIAMSON & WYATT, PC Attorneys at Law Pacwest Center 1211 SW 5th Ave., Suite 1900 Portland, OR 97204 Telephone [phone] Fax [phone]

Defendants' misconduct, FUR has had to, and will continue to, undertake corrective advertising efforts to combat the false impressions created by the Video. Further, Fluke's false accusations concerning trademark infringement threaten to impede FUR's ability to promote its products. Accordingly, FUR seeks temporary, preliminary, and permanent injunctive relief to prevent Defendants from continuing to publish the Video and actual, compensatory, consequential damages as well as disgorgement of Defendants' profits, exemplary damages, attorneys' fees, and the following declaratory relief: (1) temporary, preliminary, and permanent injunctive relief prohibiting Defendants from publishing the Video; (2) actual, compensatory, consequential, and punitive damages; (3) disgorgement of Defendants' profits; (4) a declaratory judgment that the Alleged Trademark is invalid and ordering it cancelled; (5) a declaratory judgment that FUR has not infringed the Alleged Trademark; (6) a declaratory judgment that any claims Fluke may have had or may ever have based on FUR' s purported infringement of the Alleged Trademark are barred by acquiescence, waiver, estoppel, and laches; and (7) awarding FUR's attorneys' fees and costs.

v.
CAUSES OF ACTION A. Count One: False Advertising Under Lanham Act-IS U.S.C. § 112S(a)(1)(B)
21. 22. The preceding paragraphs are incorporated herein by reference. In their commercial advertising and promotion-the Video-Defendants have

knowingly, intentionally, deliberately, and in bad faith materially misrepresented in interstate commerce the nature, characteristics, and qualities of FUR's thermal imaging products in violation of 15 U.S.C. § 1125(a)(1)(B).

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PLAINTIFF FUR SYSTEMS, INC.'S ORIGINAL COMPLAINT AND JURY DEMAND

SCHWABE. WILLIAMSON & WYAn, P.C. A«orneys at Law
Pacwest Center

1211 SW 5th Ave., Suite 1900 Portland, OR 97204 Telephone [phone] Fax [phone]

23.

As a direct and proximate result of Defendants' false advertising, FUR has

suffered injury for which, pursuant to 15 U.S.C. § 1117(a), it seeks to recover actual, compensatory, and consequential damages in an amount to be determined at trial, including, but not limited to, reimbursement for the corrective advertising efforts that FUR has undertaken and will undertake to address Defendants' wrongful conduct. 24. In addition, pursuant to 15 U.S.C. § 1117(a), FUR is entitled to the disgorgement

of Defendants' profits. 25. As a result of Defendants' willful, deliberate, egregIOus, and bad faith

misconduct, FUR has been required to retain the undersigned counsel to prosecute and present the claims asserted herein. Pursuant to 15 U.S.C. § 1117(a), FUR seeks to recover from

Defendants its attorneys' fees and costs incurred in this action.
B.

Count Two: 112S(a)(1)(A) 26. 27.

Unfair Competition Under The Lanham Act-IS U.S.c. §

The preceding paragraphs are incorporated herein by reference. The Video contains materially false and misleading statements about, and

depictions of, FUR's products. Defendants manipulated the purported "testing" of the FUR CameraS to deliberately create false impressions about the durability, quality, and reliability of FUR' s products. Defendants injected the Video into interstate commerce with the intent to deceive and confuse potential consumers of FUR's products. Accordingly, Defendants have engaged in unfair competition in violation of 15 U.S.c. § 1125(a)(I)(A). 28. As a direct and proximate result of Defendants' false and misleading statements

about, and depictions of, the FUR Cameras, FUR has suffered injury for which, pursuant to 15 U.S.C. § 1117(a), it seeks to recover actual, compensatory, and consequential damages in an amount to be determined at trial, including, but not limited to, reimbursement for the corrective Page 9 PLAINTIFF FUR SYSTEMS, INC.'S ORIGINAL SCHWABE, ~~t~~~~~sS~~:wWYATT, PC COMPLAINT AND JURY DEMAND 1211 s~~e~~~~~~fte 1900
Portlarld, OR 97204 Telephone [phone] Fax [phone]

advertising efforts that FUR has undertaken or will undertake to address Defendants' wrongful conduct. 29. In addition, pursuant to 15 U.S.C. § 1117(a), FUR is entitled to the disgorgement

of Defendants' profits. 30. As a result of Defendant's willful, deliberate, egregIOus, and bad faith

misconduct, FUR has been required to retain the undersigned counsel to prosecute and present the claims asserted herein. Pursuant to 15 U.S.c. § 11 17(a), FUR seeks to recover from

Defendants its attorneys' fees and costs incurred in this action.
C.

Count Three: Publication Of Injurious Falsehoods

31. 32.

The preceding paragraphs are incorporated herein by reference. In the Video, Defendants published, without privilege, false and deceptive

statements and representations concerning FUR and FUR's products. 33. The Video is a commercial advertisement and promotion intended to mislead

potential customers about the quality of FUR's products. 34. Defendants knew that the statements, representations, and depictions of FUR's

products in the Video were false, or made them with reckless disregard for their truth or falsity. 35. As evidenced by the continued publication of the Video on the internet and on

Fluke's website as a marketing tool, Defendants intended for their publication to mislead potential customers of FUR. 36. Defendants intended the publication of those false and misleading facts to result

in harm to FUR's interests having a pecuniary value, or recognized or should have recognized that it was likely to do so.

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PLAINTIFF FUR SYSTEMS, INC.'S ORIGINAL COMPLAINT AND JURY DEMAND

SCHWABE. WILLIAMSON & WYAn, P.C Attorneys at law
Pacwest Center

1211 SW 5th Ave., Suite 1900 Portland, OR 97204 Telephone [phone] Fax [phone]

37.

As a direct and proximate result of Defendants' wrongful conduct, FUR is

entitled to actual, compensatory, consequential, and punitive damages in an amount to be determined by the trier of fact, including but not limited to reimbursement for the corrective advertising efforts that FUR has undertaken, or will undertake to address Defendants' wrongful conduct.

D.

Count Four: Business Disparagement
38 . 39. The preceding paragraphs are incorporated herein by reference. In the Video, Defendants have made false and disparaging representations about

FUR and FUR's products. 40. The statements, representations, and depictions of FUR' s products in the Video

are false and misleading. 41. 42. Defendants published the Video on Fluke ' s website and on YouTube. Defendants made the false and deceptive statements and representations in the

Video about FUR and FUR's products with the intent to mislead potential customers about FUR ' s products and harm FUR. 43. These false and deceptive statements and representations caused and continue to

cause special harm to FUR. As a direct and proximate result of Defendants' misconduct, FUR is entitled to actual, compensatory, consequential, and punitive damages in an amount to be determined at trial, including, but not limited to, reimbursement for the corrective advertising efforts that FUR has undertaken, or will undertake to address Defendants' wrongful conduct.

E.

Count Five: Civil Conspiracy
44. The preceding paragraphs are incorporated herein by reference.

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PLAINTIFF FUR SYSTEMS, INC. 'S ORIGINAL COMPLAINT AND JURY DEMAND

SC HWABE , WILLIAM SO N 8. WYAn , PC Attorneys at Law Pacwest Center 1211 SW 51 Ave., Suile 1900 h Portland , OR 97204 Telephone [phone] Fax [phone]

45.

Fluke and Sierra acted together to accomplish an unlawful object, including

defamation, publication of injurious falsehoods, and business disparagement. 46. Defendants had a meeting of the minds whereby they decided to take steps to

accomplish these unlawful acts and omissions. Indeed, Sierra was retained and paid by Fluke to assist in the design, creation, and publishing of the false Video, including the rigged "test." 47. Defendants committed one or more unlawful overt acts in furtherance of this

conspiracy, including, but not limited to, making and publishing the false and misleading Video. 48. As a direct and proximate result of Defendants' civil conspiracy, FUR is entitled

to actual, compensatory, consequential, and punitive damages in an amount to be determined by the trier of fact, including, but not limited to, reimbursement for the corrective advertising efforts that FUR has undertaken, or will undertake to address Defendants' wrongful conduct.
F. Count Six: Aiding And Abetting

49. 50. disparagement. 51.

The preceding paragraphs are incorporated herein by reference. Fluke is liable to FUR for publication of injurious falsehood and business

Defendant Sierra had knowledge of Fluke's wrongful acts but, nonetheless,

knowingly commanded, directed, advised, encouraged, aided, and abetted Fluke and its wrongful acts. 52. As a result of Sierra's assistance and encouragement, Fluke committed the

wrongful acts detailed herein. 53. As the direct and proximate result of the Defendants' wrongful conduct, FUR is

entitled to actual, compensatory, consequential, and punitive damages in an amount to be determined by the trier of fact, including, but not limited to, reimbursement for the corrective Page 12 PLAINTIFF FUR SYSTEMS, INC.'S ORIGINAL COMPLAINT AND JURY DEMAND
SCHWABE, WILLIAMSON & WYAn, P.C.
Attorneys at Law Pacwest Center

1211 SW 5th Ave., Suile 1900 Portland, 0 R 97204 Telephone [phone] Fax [phone]

advertising efforts that FUR has undertaken, or will undertake to address Defendants' wrongful conduct.

G.

Count Seven: Declaratory Relief Concerning The Alleged Trademark
54. 55. The preceding paragraphs are incorporated herein by reference. FUR's request for a declaratory judgment is authorized by 28 US.c. § 2201(a)

and 15 US.c. § 1116. 56. As demonstrated above, an actual, substantial, and justiciable controversy exists (1) the Alleged Trademark is valid; (2) FUR has infringed the Alleged

regarding whether:

Trademark; and (3) Fluke's purported claims are barred by, among other things, acquiescence, waiver, estoppel, and laches. 57. FUR requests that the Court issue a judgment declaring that the Alleged

Trademark is invalid and ordering it cancelled because it is merely generic or descriptive and has not acquired secondary meaning-the Alleged Trademark has not become known to the public as denoting a product of certain origin. 58. In the alternative, FUR requests the Court enter a judgment declaring that:

(1) FUR has not infringed the Alleged Trademark; and (2) any claims Fluke may have had that FUR infringed the Alleged Trademark are barred by the fair use defense and laches. 59. Even if the Alleged Trademark were deemed to be valid, FUR has not infringed

the Alleged Trademark because FUR's use, if any, is not likely to cause confusion, cause mistake, or deceive consumers. Indeed, FUR's use of the Alleged Trademark, if any,

constituted fair use because, among other things, the mark was used in good faith to merely describe FUR's products and technology, in the trademark sense.

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PLAINTIFF FUR SYSTEMS, INC. 'S ORIGINAL COMPLAINT AND JURY DEMAND

SCHWABE . WILLIAMSON & WYAn. P.C.
Attorneys at Law Pacwesl Center

1211 SW5th Ave., Suite 1900 Portland, OR 97204 Telephone [phone] Fax [phone]

60.

In addition, Fluke is barred from maintaining a suit against FUR for trademark

infringement based on its unreasonable delay in asserting any exclusive rights to the Alleged Trademark because Fluke knew or should have known of FUR's purported use of the Alleged Trademark for more than two years. FUR has relied to its detriment on Fluke's acquiescence and silence and if Fluke were now allowed to maintain a claim for trademark infringement against FUR relating to the Alleged Trademark, FUR would be prejudiced.

H.

Count Eight: Temporary, Preliminary, And Permanent Injunctive Relief
61. 62. The preceding paragraphs are incorporated herein by reference. FUR's request for temporary, preliminary, and permanent injunctive relief is

authorized by 15 U.S.C. § 1116(a) as well as State common law and principles of equity. 63. Defendants willfully, deliberately, and in bad faith created an advertisement that

contains false and misleading statements and representations about FUR and its products in violation of the law, including 15 U.S.C. § 1125(a)(1)(A) and 15 U.S.C. § 1125(a)(1)(B). Defendants injected the false advertisement into interstate commerce with the intent to mislead, confuse, and deceive potential customers of FUR and its products. The false representations made by Defendants in the Video are material. Indeed, those false representations were

intended, have, and are likely to deceive consumers of FUR's products and to thereby influence their decision to buy FUR products. Accordingly, the Video threatens and is likely to injure FUR. In fact, the Video continues to be published on YouTube and on Fluke's website. 64. Defendants' actions are causing FUR to suffer immediate and irreparable harm.

Specifically, Defendants' actions are damaging FUR's reputation and goodwill for which there is no adequate remedy at law.

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PLAINTIFF FUR SYSTEMS, INC.'S ORIGINAL COMPLAINT AND JURY DEMAND

SCHWABE, WILLIAMSON & WYATT, p ,c,
Attomeys at Law Pacwest Center

1211 SW 5th Ave " Suite 1900 Portland, OR 97204 Telephone 503,222,9981 Fax 503,796,2900

65.

Unless Defendants are enjoined from continuing their wrongful actions, FUR will

continue to suffer irreparable injury, harm, and damages. 66. FUR, therefore, requests that the Court issue a temporary restraining order and,

following any necessary hearing with respect thereto, enter a preliminary injunction prohibiting Defendants from publishing the Video. 67. FUR further requests that the Court enter a permanent injunction enjOInIng

Defendants from publishing the Video.

I.

Count Nine: Attorneys' Fees And Costs
68. 69. The preceding paragraphs are incorporated herein by reference. This action arises from Defendants' deliberate, egregious, and bad faith violations

of the Lanham Act. As a result of Defendants' misconduct, FUR has been required to retain the undersigned counsel to prosecute and present the claims asserted herein. Pursuant to 15 U.S.c. § 1117(a), FUR seeks to recover from Defendants its attorneys' fees and costs incurred in this action.

VI.
JURY DEMAND
Plaintiff FUR hereby demands a jury trial on all claims and defenses.

VII.
PRAYER FOR RELIEF

WHEREFORE Plaintiff FUR Systems, Inc., requests that the Court enter judgment against Defendants Fluke Corporation and Sierra Media, Inc. and award Plaintiff FUR Systems, Inc. the following relief: 1. Page 15 Temporary, preliminary, and permanent injunctive relief prohibiting Defendants from publishing the Video;
SCHWABE, WILLIAMSON 8. WYAn, PC Attomeys at Law

PLAINTIFF FUR SYSTEMS, INC. 's ORIGINAL COMPLAINT AND JURY DEMAND

Pacwest Center
1211 SW 51h Ave., Suite 1900 Portland, OR 97204 Telephone [phone] Fax [phone]

2. 3.

Actual, compensatory, consequential , and punitive damages; Disgorgement of Defendants' profits attributable to any cameras that compete with any cameras sold by FLIR, including, but not limited to the FLIR cameras, for the period beginning on the date the Video was first published and continuing through at least the date the Video is no longer published; A declaratory judgment declaring the Alleged Trademark invalid and ordering it cancelled; A declaratory judgment declaring that FLIR has not infringed the Alleged Trademark; A declaratory judgment that any claims Fluke may have had or may ever have based on FLIR's purported infringement of the Alleged Trademark are barred by laches. Attorneys' fees and costs; Pre-judgment and post-judgment interest at the highest lawful rates; Such other and further relief to which Plaintiff FLIR Systems, Inc. may be justly entitled to under law and equity.

4.

5.

6.

7. 8. 9.

Dated this 17th day of August, 2010. Respectfully submitted,
SCHWABE, WILLIAMSON & WYATT, P.c.

BY: 2 ~ Devon Z'astrow Newman, OSB #014627 Telephone [phone] BICKEL & BREWER William A. Brewer III, pro hac vice p ending Michael l. Collins, pro hac vice pending Telephone [phone] Of Attorneys for Plaintiff, FLIR Systems, Inc.

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PLAINTIFF FLIR SYSTEMS, INC.'S ORIGINAL COMPLAINT AND lUR Y DEMAND

SC HWABE . WI LLIAMSO N & WYAn . P C Attorneys at Law Pacwest Center 1211 SW5thAve .. Suite 1900
Portlan d. OR 972 04
Telephone [phone] Fax [phone]