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Reversal of fortune   Attorneys from Decker Jones team up with Simpson Boyd & Powers to win record trademark damage award, $56-million judgment entered after plaintiff found to have fraudulently registered trademark    

Fort Worth, Texas (April 4, 2006) – A Texas District judge has awarded $56.3 million to defendant DFW Plastics Inc. of Saginaw, Texas, after a jury found that plaintiff National Diversified Sales (NDS) had wrongfully registered and used DFW's trademark.  

Daniel Bates and Geoff Mantooth of Decker, Jones, McMackin, McClane, Hall & Bates, P.C. were trial counsel attorney and trademark counsel for DFW Plastics. Also representing DFW Plastics on its counterclaim were Mike Simpson and Derrick Boyd of Simpson, Boyd & Powers of Decatur , Texas . Jack Walker of Parker White of Tyler, Texas represented co-defendant DFW Alliance.  

“This is an unusual case because the defendant not only won the suit, but was also awarded damages,” Mantooth said. “I think the evidence clearly showed that NDS willfully lied to the U.S. Patent and Trademark Office. It just snowballed from there.”  

Judge John Fostel of the 271 st Judicial District Court ordered National Diversified Sales of Lindsay, California to pay DFW Plastics of Saginaw, Texas $1.8 million in damages, $44.9 million in profits attributed to the fraudulent use of the DFW trademark, $9 million in interest and $600,000 in attorneys' fees. A second defendant, DFW Alliance, was awarded its attorneys' fees of $130,000.  

“This case is something of a commercial David versus Goliath,” Bates said. “NDS is much bigger than DFW Plastics and thought they could overwhelm us with litigation. The jury agreed that Goliath was a fraud.”  

“This may be the largest trademark infringement judgment in Texas history, but it is fully justified because of the willful nature of NDS' conduct. NDS should not be able to profit through its fraud.”  

DFW Plastics, Inc. is a small, family-owned company started in the living room of Bob McKinnon Sr. in 1978.  The company sells water meter boxes, lids and related products under the mark “DFW”. In 1997, the company sold one of its product lines, together with the mark “DFW/HPI” used in connection with those products, to another manufacturer, who in turn sold the line and the mark to NDS. DFW Plastics continued to sell its other products under the “DFW” mark.  

NDS obtained a federal registration for the mark “DFW” in connection with certain injection molded products and also for the products made and sold by DFW Plastics.  NDS told the U.S. Patent and Trademark Office that it bought the mark “DFW” and that its predecessor first began using the mark “DFW” in 1978.  

In 2003, NDS sued DFW Alliance, a licensee of DFW Plastics, for infringement of NDS' registered trademark “DFW”.  When DFW Plastics asserted that it owned the mark “DFW” for plastic products, NDS added DFW Plastics to the lawsuit.  DFW Plastics filed a counterclaim against NDS for infringement of its mark “DFW” for plastic products.   

At trial, the jury found that DFW Plastics owned the mark “DFW” for plastic products and that NDS, by its use of the trademark “DFW”, willfully infringed the trademark rights of DFW Plastics. In addition, the jury found by clear and convincing evidence (a high burden of proof) that NDS fraudulently obtained the trademark registration from the USPTO.   

NDS is owned by Graham Partners of Pennsylvania.    

Decker, Jones, McMackin, McClane, Hall & Bates, P.C. has provided sound legal advice and counsel to Texans and their businesses since 1896. The firm has throughout its history remained at the forefront of business law practice, and most recently has enjoyed considerable recognition in the fields of Litigation and Intellectual Property Law. To learn more about Decker, Jones, McMackin, McClane, Hall & Bates, P.C., go to www.deckerjones.com.

Simpson, Boyd & Powers, P.L.L.C. has established a distinguished  and consistent track record of successful jury  verdicts. The attorneys in the firm are lawyers that have proven capabilities in handling complicated and complex cases in the areas of personal injury, product liability, insurance  litigation, aviation accidents, business disputes,  medical malpractice and antitrust cases and obtaining  past jury verdicts or recoveries ranging from  millions to hundreds of millions of dollars. To learn more about Simpson, Boyd & Powers, go to www.sbplaw.com.