By Eric Schweibenz
On May 9, 2014, Bear Archery, Inc. of Evansville, Indiana (“Bear Archery”) and SOP Services, Inc. of Las Vegas, Nevada (collectively, “Complainants”) filed a complaint requesting that the ITC commence an investigation pursuant to Section 337.

The complaint alleges that Ningbo Topoint Outdoor Sports Co., Ltd. of China (“Topoint”) unlawfully imports into the U.S., sells for importation, and/or sells within the U.S. after importation certain archery products that infringe one or more claims of U.S. Patent Nos. RE38,096 (the ‘096 patent), 6,978,775 (the ‘775 patent), and 7,226,375 (the ‘375 patent) (collectively, the “asserted patents”).  The complaint further alleges that Topoint unlawfully imports and distributes related marketing materials, and that Topoint’s archery products and related marketing materials infringe U.S. Trademark Reg. No. 2,501,255 for the mark WHISKER BISCUIT ARROW REST and U.S. Trademark Reg. No. 3,312,392 for the mark WHISKER BISCUIT (collectively, the “asserted trademarks”).

According to the complaint, the asserted patents generally relate to archery.  In particular, the ‘096 patent relates to an arrow rest for guiding and supporting an arrow on an archery bow.  The ‘775 patent relates to certain improvements to circular full capture arrow rests.  Lastly, the ‘375 patent relates to a mechanical broadhead arrowhead that expands upon hitting a target.

In the complaint, Complainants state that Topoint imports and sells products that infringe the asserted patents.  The complaint specifically refers to the TP813 Arrow Rest, the TP815 Arrow Rest, the TP105 Arrow Rest Component, the TP2000 Rest Combination, the TP9000 Rest Combination, the TP222 Broadhead, and the TP223 Broadhead as infringing products.  In addition, Complainants state that Topoint is infringing the asserted trademarks through its use of the marks in the advertising, promotion, and sale of the accused archery products.

Regarding domestic industry, Complainants state that Bear Archery offers a number of arrow rest and broadhead arrow products that are covered by the asserted patents and that are sold in association with the asserted trademarks.  These include, for example, the Whisker Biscuit® Kill Shot and the Meat Seeker 2.  Complainants state that the research and development that led to Bear Archery’s products that practice the asserted patents took place in the U.S.  Complainants specifically refer to facilities in Indiana and Florida, and state that employees at these facilities  conduct activities relating to the development, engineering, design, product support, and service for products that practice the asserted patents.

As to related litigation, Complainants refer to two district court cases involving the patent from which the ‘096 patent later reissued.  Both of these cases were filed in the U.S. District Court for the Middle District of North Carolina, and were dismissed in 2003 and 2005, respectively.  Complainants also refer to a case in the U.S. District Court for the Southern District of Indiana involving the asserted trademarks, which is ongoing.

With respect to potential remedy, Complainants request that the Commission issue a permanent general exclusion order, or in the alternative, a permanent limited exclusion order.  Complainants state that a general exclusion order is warranted because it can be very difficult to determine the source of allegedly infringing products, and Topoint has demonstrated the ability to utilize a number of different companies for purposes of sales and/or importation of the accused products.