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INC., dba KLOCK WERKS KUSTOM CYCLES (“KLOCK WERKS”) and BRIAN KLOCK
hereby request that the Court enter Default Judgment against Defendants DRAGONFLY
CYCLE CONCEPTS, LLC and KEVIN MICHAEL MARTIN in the amount of $33,032.63,
including attorneys’ fees and costs, and issue a permanent injunction against Defendants.
Despite having been duly served with a summons and a copy of the Complaint in this action,
Defendants have failed to answer, move, plead, or otherwise respond. The Clerk entered a
default against Defendants on July 11, 2018. See Clerk’s Entry of Default [ECF No. 10.]
Accordingly, all of the assertions in Plaintiffs’ Complaint are taken as true and admitted, and
Plaintiffs are entitled to a default judgment as a matter of law. The reasons for this Motion and
Plaintiffs’ requested relief are set forth more fully in the attached Memorandum in Support.
Additionally, Plaintiffs are submitting Declarations of T. Earl LeVere, Esq., and Richard J.
Rylance, II, Esq., in support of this Motion, as well as a proposed entry granting the requested
relief.
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OF COUNSEL:
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MEMORANDUM IN SUPPORT
I. INTRODUCTION
Plaintiffs filed their Complaint in this action against Defendants DRAGONFLY CYCLE
9, 2018. See Complaint [ECF No. 1]. Plaintiffs’ Complaint asserts a claim for design patent
infringement under 35 U.S.C. § 271, et seq. Id. Plaintiffs perfected service of the Summons and
Complaint upon Defendants on June 19, 2018, via personal, hand-delivery service. See
Rule 12(a)(1)(A) of the Federal Rules of Civil Procedure provides in pertinent part: “A
defendant must serve an answer . . . within 21 days after being served with the summons and
complaint.” Fed. R. Civ. P. 12(a)(1)(A). Per Rule 12(a)(1)(A), July 10, 2018, was the deadline
for Defendants to move or otherwise plead in response to Plaintiffs’ Complaint. The Defendants
When a party against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend, and that failure is shown by affidavit or
otherwise, the clerk must enter the party’s default.
Fed. R. Civ. P. 55(a). The Clerk, upon Plaintiffs’ application (see Plaintiffs’ Application for
Entry of Default Against Defendants [ECF No. 9]), duly entered default against Defendants on
July 11, 2018 (see Clerk’s Entry of Default [ECF No. 10]). Upon entry of Defendants’ default,
pursuant to Rule 55, Plaintiffs are entitled to a default judgment as a matter of law against
Defendants.
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manufacturing custom parts and accessories for motorcycles, and has done so for more than two
decades. Complaint at ¶¶ 5, 8 [ECF No. 1]. KLOCK WERKS is the exclusive licensee of U.S.
Patent No. D586,275 (“the ‘275 Patent”). Id. Plaintiff BRIAN KLOCK is the president,
founder, and CEO of KLOCK WERKS. Id. at ¶¶ 5, 8. In addition, BRIAN KLOCK is also the
inventor and owner of the ‘275 Patent. Id. at ¶ 6. Mr. Klock is well-known internationally for
This notoriety comes, in part, from Plaintiffs’ winning the nationally televised 2006
Discovery Channel Biker Build Off with their customized “World’s Fastest Bagger” motorcycle.
Id. That winning motorcycle was the inspiration for KLOCK WERKS’ original FLARE®
windshield, which KLOCK WERKS later expanded into its series of patented FLARE®
The FLARE® windshields became an immediate success and have sold in excess of one-
hundred thousand (100,000) units since their debut. Id. at ¶ 10. In order to boost sales, KLOCK
WERKS has advertised the FLARE® windshield line in numerous national and international
magazines, including Hot Bike, Hot Bike Baggers, American Baggers, Cycle Sources, American
Iron, Iron Works, Christian Motorsports Illustrated, Motor Market Magazine, as well as other
publications. Id. Some of the same magazines have published articles discussing FLARE®
windshields, and several industry websites have published product reviews about FLARE®
windshields. The FLARE® windshields have won countless awards, including being touted as
one of the “Best Products” at the 2008 V-Twin Expo. Id. at ¶ 11.
The ‘275 Patent, entitled FLARED WINDSHIELD FOR A MOTORCYCLE, was duly
and legally issued for one model of the FLARE® windshield on February 10, 2009, naming
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BRIAN KLOCK as the inventor. Id. at ¶ 12, Ex. 1. KLOCK WERKS has commercialized the
design of the ‘275 Patent as KLOCK WERKS’ 6.5” FLARE® windshield for “batwing fairings”
for motorcycles, generally, and for FHL model Harley-Davidson motorcycles in particular. Id. at
¶ 13.
WERKS’ commercial embodiment of the ‘275 Patent, namely, the KLOCK WERKS’ 6.5”
FLARE® windshield for batwing fairings. Id. at ¶ 23, Ex. 3. DRAGONFLY has infringed, and
continues to infringe, the ‘275 Patent by copying KLOCK WERKS’ 6.5” FLARE® windshield to
create and sell the DRAGONFLY 6.5” FLIP-OUT Batwing windshield. Id. at ¶¶ 15-17.
DRAGONFLY’s FLIP-OUT Batwing windshield embodies the design claimed in the ‘275
product to the ‘275 Patent and to KLOCK WERKS’ 6.5” FLARE® windshield plainly
WERKS’ patented design. See, id. at ¶¶ 21, 24 and accompanying tables, copies of which are
attached hereto for the Court’s reference as Exhibit 1. Because DRAGONFLY has a history of
embodiment of the ‘275 Patent—DRAGONFLY knew, or reasonably should have known, of the
existence of the ‘275 Patent before they designed and released their 6.5” FLIP-OUT Batwing
When a party has failed to plead or otherwise defend against a pleading, entry of default
under Federal Rule of Civil Procedure 55(a) must precede grant of a default judgment under
Rule 55(b). Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 783 (8th Cir. 1998). Once an entry
of default is entered by the clerk, a party may then move a court to enter the default judgment.
Journey Grp. Cos. v. Sioux Falls Constr., LLC, No. CV-15-4125, 2017 WL 1376369 at *2
A defendant who has defaulted is deemed to have admitted the well-pleaded allegations
in the complaint. Id. at *3 (quoting Taylor v. City of Ballwin, 859 F.2d 1330, 1333 n.7 (8th Cir.
1988)). Therefore, factual allegations in the complaint are taken as true when determining
whether default judgment is warranted. Everyday Learning Corp. v. Larson, 242 F.3d 815, 818
(8th Cir. 2001); Hydreon Corp. v. JC Bros., Inc., Case No. 15-cv-01917, 2016 WL 6826185, *7
(D. Minn. Nov. 18, 2016) (Noting that “so long as the complaint alleges sufficient facts to
establish liability, those fact are to be taken as true in a default judgment motion” and holding
that “[t]here is no question that the complaint adequately alleges willful patent infringement”)
Here, Defendants were properly served with notice of these proceedings and failed to
plead or otherwise defend in response thereto. See Plaintiffs’ Application for Entry of Default
Against Defendants [ECF No. 9]; Clerk’s Entry of Default [ECF No. 10]. Defendants’ failure to
respond to Plaintiffs’ Complaint or Plaintiffs’ application for entry of default demonstrates that
Defendants have no intention of defending this action. Defendants have therefore conceded the
As such, and as set forth below, the Defendants’ liability for patent infringement is
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respectfully request that this Court grant its Motion for Default Judgment under Fed. R. Civ. P.
a. Adjudging that Defendants have infringed the ‘275 Patent, jointly and severally,
MARTIN and Defendant DRAGONFLY CYCLE CONCEPTS, LLC, as well as its owners, and
the employees, agents, officers, directors, attorneys, successors, affiliates, subsidiaries, and
assigns of either Defendant, as well as all of those in active concert with or participation with any
of the foregoing persons or entities, from infringing, contributing to the infringement of, and/or
d. Declaring this case exceptional and awarding Plaintiffs their reasonable attorneys’
fees in the amount of $31,757.63 (see Dec. of LeVere (Ex. 2 hereto); Dec. of Rylance (Ex. 3
The facts alleged in Plaintiffs’ Complaint and described above, which are now deemed
Based on the factual allegations in the Complaint—which the Court must now accept as true—
Plaintiffs own the ‘275 Patent. Defendants have infringed and continue to infringe the ‘275
Patent under 35 U.S.C. § 271(a) by making, using, selling, offering to sell, and/or importing the
design covered by the ‘275 Patent. Complaint at ¶ 38. Defendants do not have a license or
permission to manufacture products embodying the design claimed in the ‘275 Patent. Id. at ¶
39.
and will cause Plaintiffs further irreparable injury and damage in the future unless and until
Defendants are enjoined from continuing to infringe the ‘275 Patent. The comparison tables
embedded throughout the Complaint indisputably show that the Defendants’ product infringes,
and is virtually indistinguishable from, the design shown and claimed in the ‘275 Patent. Id. at
In order to obtain a permanent injunction under the Patent Act, a plaintiff must
demonstrate:
(1) that it has suffered an irreparable injury; (2) that remedies available at law,
such as monetary damages, are inadequate to compensate for that injury; (3) that,
considering the balance of the hardships between the plaintiff and defendant, a
remedy in equity is warranted; and (4) that the public interest would not be
disserved by a permanent injunction.
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). All of the factors are present
First, Plaintiffs have suffered an irreparable injury. Plaintiffs incurred the time, expense,
and effort of developing the design in the ‘275 Patent and KLOCK WERKS’ 6.5” FLARE®
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infringement like the Defendants’. As a result of Defendants’ actions, Plaintiffs have suffered
irreparably in terms of significant harm to Plaintiffs’ goodwill within the motorcycle industry
and by being deprived of their ability to control the use and commercial exploitation of their
patented design. Complaint at ¶ 27. If this Court fails to enjoin the Defendants, Defendants will
be able to continue to sell the infringing FLIP-OUT Batwing windshield, which will serve to
decrease Plaintiffs’ sales and market share as well as Plaintiffs’ hard-earned reputation for
innovation in motorcycle design. See, Acumed LLC v. Stryker Corp., 551 F.3d 1323, 1329 (Fed.
Cir. 2008) (“Adding a new competitor to the market may create an irreparable harm . . . .”). See
also, Zen Design Group Ltd. v. Clint, No. 08-cv-14309, 2009 WL 4050247, *5 (E.D. Mich. Nov.
23, 2009) (entering a default judgment of patent infringement and finding irreparable harm
where the infringement has caused, or is likely to cause, irreparable price erosion as well as
injury to the patentee’s goodwill in the market); Smith & Nephew, Inc. v. Synthes, 455 F. Supp.
2d 978, 982 (W.D. Tenn. 2006) (finding irreparable harm when a patentee “loses market share or
infringement. The “simple fact that one could, if pressed, compute a money damages award does
not always preclude a finding of irreparable harm.” Polyform A.G.P., Inc. v. Xtreme Insulation
Techs, LLC, No. CV 17-735, 2017 WL 4564719, *5 (D. Minn. Oct. 11, 2017) (quoting Celsis In
Vitro, Inc. v. CellzDirect, Inc., 664 F.3d 922, 930 (Fed. Cir. 2012)).
Here, Defendants’ willful infringement of the ‘275 Patent and their failure even to
participate in this litigation demonstrates the likelihood that they will continue to infringe absent
equitable relief by this Court. Olan Mills, Inc. v. Linn Photo Co., 23 F.3d 1345, 1349 (8th Cir.
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1994) (history of infringement and significant threat of future infringement supports injunctive
relief). Moreover, “[r]elief in the form of monetary damages alone would not meet the ends of
justice here because this remedy would allow the infringement to continue.” FURminator, Inc.
v. Kim Laube & Co., No. 4:08CV00367, 2011 WL 1226944, *2 (E.D. Mo. Mar. 30, 2011)
(quoting Smith & Nephew, 466 F. Supp. 2d at 984) (granting permanent injunction for patent
infringement because monetary damages are not an adequate remedy against future infringement
because the principal value of a patent is its statutory right to exclude others from practicing
Third, the balance of the hardships weighs in favor of an injunction. Defendants have
infringed Plaintiffs’ patent rights with impunity. Enjoining Defendants from selling the
commercial embodiment of Plaintiffs’ ‘275 Patent (which Defendants were fully aware of and
offered for sale as an authorized dealer)—would not impermissibly harm Defendants. Hydreon
Corp., 2016 WL 6826158 at *9 (finding balance of hardships favored injunctive relief because
“there is no conceivable harm to Defendant” because plaintiff only sought to enjoin the sale of
hardships weighed in favor of injunctive relief, in part, because defendant only began selling the
Finally, the public interest will not be harmed by preventing Defendants from selling
their infringing design. “The public maintains an interest in protecting the rights of patent
holders, and injunctions serve that interest.” FURminator, 2011 WL 1226944 at *3 (quoting
Smith & Nephew, 466 F. Supp. 2d at 985); Hydreon Corp., 2016 WL 6826158 at *9 (granting
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injunctive relief on default judgment in patent infringement action because there is a “significant
benefit to the public and plaintiff by protecting plaintiff’s intellectual property rights”).
All four eBay factors are present here and weigh in favor of equitable relief. As such,
Plaintiffs request that this Court grant an injunction permanently enjoining Defendant KEVIN
MICHAEL MARTIN and Defendant DRAGONFLY CYCLE CONCEPTS LLC, as well as the
owners, employees, agents, officers, directors, attorneys, successors, affiliates, subsidiaries, and
assigns of either of them, and all of those in active concert with or participation with any of the
foregoing persons or entities from infringing, contributing to the infringement of, and/or
Plaintiffs apply to this Court to enter a default judgment award of $750 in statutory
minimum and enhanced damages against Defendants. 35 U.S.C. § 289 provides that when an
individual impermissibly uses a patented design in infringing article, that individual is “liable to
the owner to the full extent of his total profit, but not less than $250 . . . .” (Emphasis added.)
Because Defendants failed to appear and defend this action, and therefore failed to
infringing sales or the profits Defendants derived therefrom. Thus, Plaintiffs are only requesting
the minimum statutory award of $250 for infringement of the ‘275 Patent. See, Amini Innovation
Corp. v. KTY Intern. Mktg, 768 F. Supp. 2d 1049, 1058 (C.D. Cal. 2011) (awarding statutory
minimum damages of $250 per each of the design patents infringed by the defendant on default
judgment because plaintiff did not have access to defendant’s information to show actual
willful infringement, this Court should award enhanced damages of three times the statutory
minimum requested under 35 U.S.C. § 284, for a total of $750. See, Halo Electronics, Inc. v.
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Pulse Electronics, Inc., 831 F.3d 1369, 1381 (Fed Cir. 2016) (“the subjective willfulness of a
patent infringer, intentional or knowing, may warrant enhanced damages” under § 284).
The Patent Act permits the award of attorneys’ fees in “exceptional cases.” 35 U.S.C. §
285. An exceptional case is “simply one that stands out from others with respect to the
substantive strength of a party’s litigation position (considering both the governing law and the
facts of the case) or the unreasonable manner in which the case was litigated.” Octane Fitness,
LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 554 (2014). This determination is made on a
case-by-case basis, considering the totality of the circumstances, with “no precise rule or formula
for making these determinations . . . .” Id. (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 534
(1994)).
sufficient” to find an exceptional case under Octane Fitness. See, Ceiva Logic, Inc. v. Frame
Media, Inc., No. SACV 08-00636-JVS, 2014 WL 7338840 at *4 (C.D. Cal. Dec. 19, 2014);
Rubbermaid Commercial Prod., LLC v. Tr. Commercial Prod., No. 2:13-CV-02144-GMN, 2014
WL 4987878, at *6 (D. Nev. Aug. 22, 2014) (“In the context of default, ‘when a complaint
alleges willful infringement and the court subsequently enters default judgment, the court must
find for the purpose of attorneys' fees that the infringement was willful.’”). In cases of “obvious
copying and egregious infringement” together with failure to respond to the complaint so that all
factual allegations of the complaint are taken as true, an award of attorney fees is justified. See,
Hydreon Corp., 2016 WL 6826158 at * 9-10 (awarding attorneys’ fees in patent action on
default judgment). Moreover, plaintiffs who have been awarded default judgment are entitled to
recover costs expended in the matter pursuant to 28 U.S.C. § 1920. Monsanto Co. v. Hargrove,
No. 4:09-cv-1628, 2011 WL 5330674, *4 (E.D. Mo. Nov. 7, 2011). Under D.S.D. Civ. LR
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54.1(B), “the clerk of court may tax costs as a matter of course without notice” in a default
judgment case.
As stated above and deemed true from the Complaint, Defendants’ infringing acts are
deliberate and willful. Defendants were well-aware of Plaintiffs’ ‘275 Patent and its commercial
embodiment, the KLOCK WERKS’ 6.5” FLARE® windshield, because Defendants were an
authorized dealer of, and actually sold, the product. At no time did Defendants have any
reasonable basis for believing they had the right to copy the ‘275 Patent or Plaintiffs’ product.
Complaint at ¶¶ 23, 26, 40. Moreover, Defendants failed to appear and defend this action,
Accordingly, this is an exceptional case under 25 U.S.C. § 285, and Plaintiffs are entitled
to recover their reasonable attorneys’ fees and costs incurred. These fees and costs total
$322,282.63, as set forth in the declarations of counsel filed herewith. See Dec. of LeVere (Ex. 2
IV. CONCLUSION
For the foregoing reasons, based on the facts alleged in the Complaint, and by application
of governing law, Plaintiffs are entitled to a judgment in their favor under Fed. R. Civ. P. 55(b).
Accordingly, Plaintiffs respectfully request that this Court grant their Motion for Default
Judgment under Fed. R. Civ. P. 55(b)(2) against Defendants and enter judgment in Plaintiffs’
favor as follows:
a. Adjudging that Defendants have infringed the ‘275 Patent, jointly and severally,
MARTIN and Defendant DRAGONFLY CYCLE CONCEPTS, LLC, as well as its owners, and
the employees, agents, officers, directors, attorneys, successors, affiliates, subsidiaries, and
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assigns of either Defendant, as well as all of those in active concert with or participation with any
of the foregoing persons or entities from infringing, contributing to the infringement of, and/or
d. Declaring this case exceptional and awarding Plaintiffs their reasonable attorneys’
OF COUNSEL:
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