On February 26, Glock, Inc. (“Glock”) filed a 44-page complaint against Kent De-Hui a/k/a Kent Wu a/k/a Keat D. Wu a/k/a Kenneth Wilson, May-Fong Chu, a/k/a May Chu a/k/a May Fun Chu, a/k/a Mian Chu a/k/a Mary Schwarz, The Wuster, Da Wuster, Inc., Da Wuster Corp., Wuster & Chewy LLC (California), Wuster & Chewy LLC (Washington), The Wuster Inc., XYZ Corporations 1-10, and ABC Limited Liability Companies 1-10 (collectively “AirSplat”), alleging patent infringement, federal trade dress infringement, federal trademark infringement, federal false designation of origin and false advertising, federal dilution, common law trade dress and trademark infringement, unfair competition, deceptive trade practices, and unjust enrichment, disgorgement and constructive trust for Airsplat's manufacture, importation, and sale of unauthorized replica airsoft guns. Glock seeks injunctive relief, damages, treble damages, and attorneys’ fees.
The complaint alleges that Glock created “the first commercially successful polymer-frame semi-automatic pistol, the GLOCK 17,” in 1982. The pistol was regarded as “a radically new design in virtually every respect.” Thereafter, 25 additional models were added to the family and by 1996 over 65% of all federal, state, and local law enforcement agencies in the United States (including the FBI, Drug Enforcement Agency, and Federal Bureau of Prisons) had adopted or approved the GLOCK pistols for duty use. “All of the various GLOCK pistols share the same distinctive design and appearance as the original Model 17.” A picture and review of the Model 17 Generation 4 GLOCK is pictured below:
Paragraph 28 of the complaint contains the following detailed description of the unique features of the GLOCK:
GLOCK pistols include a polymer-frame with a slide top lever built flush into one side of the frame and a small slide lock positioned in an angled groove on both sides of the frame above the trigger. The slide and the upper part of the polymer-frame on GLOCK pistols have a distinctive blocky and squared-off shape, with polymer sights carrying a white dot on the top of the slide and serrations on each side of the rear portion of the slide. The serial number plate is embedded on the underside of the front part of the frame. The interface between the slide and the frame on GLOCK pistols include a distinctive gap. The bottom portion of the frame includes both the handgrip and trigger guard. The handgrip of GLOCK pistols includes distinctive serrations on the front and rear faces and both sides of a GLOCK pistol grip are slightly raised and textured. The front face of the handgrip includes two raised finger ridges. At the transition between the rear of the gun and the handgrip is a slightly projecting down-turned lip. The trigger guard of a GLOCK pistol is also a blocky and squared-off shape with distinctive serrations on the front face.
Glock outlines the extensive advertising it has employed to promote the pistols and points out the existence of numerous articles featuring the GLOCK. The pistols have regularly appeared in movies (Die Hard II, The Fugitive) and television shows (NYPD Blue, CSI, The Sopranos) , as detailed at http://www.imfdb.org/wiki/Glock. Defendant AirSplat allegedly claims that some films are actually using its replicas of Glocks as detailed in paragraph 68 of the complaint:
Often, people would watch movies and TV and say, “Wow, that gun is awesome, I’d like to get me one of those”. Actually, what you may be seeing in those movies and TV shows, ARE, in face, Airsoft guns. . . . They simply digitally alter the images to incorporate the muzzle flash, sound and effects to mimic the real firearms.
Glock asserts infringement of U.S. Patent and Trademark (USPTO) Trademark Registration No. 2,807,747 (for its trade dress), USPTO Trademark Registration No. 1,691,390 (for its GLOCK logo), USPTO Trademark Registration No. 2,440,268 (for “GLOCK PERFECTION”), USPTO Trademark Registration No. 1,381,064 (for GLOCK logo in IC 008 and in IC 013), USPTO Trademark Registration No. 4,038,822 (for “airsoft guns”), and USPTO Trademark Registration No. 4,204,831 (Gen 4 for “firearms”).
Glock also asserts patent infringement of United States Patent No. 8,156,677 (‘671 Patent) covering a removable backstrap that can be mounted and elongated to increase grip size and which uses a trigger housing pin securing it to the trigger mechanism. Figure 2 from the ‘671 Patent is pictured below:
In paragraph 88, Glock lists 12 Airsplat products that infringe the backstrap claims of the ‘671 Patent.
The complaint in paragraph 50 alleges AirSplat claims “to be the ‘Nation’s Largest Airsoft Retailer.’” Among its advertised products, Glock asserts that 12 are unlicensed and unauthorized replica copies of the GLOCK Model 17; 2 are unlicensed and unauthorized replica copies of the GLOCK Model 17L; 13 are unlicensed and unauthorized replica copies of the GLOCK Model 18, 123 are unlicensed and unauthorized replica copies of the GLOCK Model 19; 7 are unlicensed and unauthorized replica copies of the GLOCK Model 23; 7 are unlicensed and unauthorized replica copies of the GLOCK Model 26; 1 is an unlicensed and unauthorized replica copy of the GLOCK Model 30; 2 are unlicensed and unauthorized replica copies of the GLOCK Model 33; 3 are unlicensed and unauthorized replica copies of the GLOCK Model 34; and 1 is an unlicensed and unauthorized replica copy of the GLOCK Model 35.
As a sample of AirSplat’s alleged use of Glock’s goodwill to market its products, in paragraph 64 of the complaint Glock quotes from a website description of the G17 (after noting that the G followed by a number relate to the precise Glock model replicated):
The G17 is one of the most highly regarded pistols in the world. This spring replica captures the look and feel of the world famous pistol. The HFC G17 is weighted to nearly match the exact weight of the actual thing. The locking slide will alert you when your magazine is empty, just like the real thing!
Glock backs its allegations of willful infringement us with allegations in paragraphs 79 and 80 as follows:
The [infringing] KSG G19 Gas Airsoft Blowback Gun Pistol prominently features GLOCK’s federally registered logo at the front of the slide, adjacent to the number, “19”; a reference to the GLOCK Mode 19 pistol. Defendants have deceptively concealed the infringement by placing black electrical tape over both the GLOCK logo and “19.” This tape can be easily removed by customers.
Defendants have attempted to deceive Customs and Border Protection by shipping airsoft pistols in unmarked boxes. These boxes are either white or plain cardboard and are inverted such that all advertisements pertaining to the products and all references to GLOCK pistols, i.e. G Series 17 and G 19, are featured on the interior of the boxes. [Emphasis added. Paragraph numbers omitted.]
From the looks of the complaint, Glock has arrived fully loaded with the authorities and is firing on automatic at all targets. It is apparent that a number of as-yet-unidentified defendants may soon be in range and under fire.
The case is Glock, Inc. v. Kent De-Hui Wu, et al., No. 1:14-cv-00568-AT, filed in the U.S. District Court for the Northern District of Georgia, Rome Division, on February 26, 2014, and assigned to U.S. District Amy Totenberg.
Labels: constructive trust, dilution, Judge Totenberg, Lanham Act, Northern District of Georgia, patent infringement, trade dress, trademark infringement, unfair competition, unjust enrichment