Native Motion to Dismiss

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

CRAIG IMMEL, d/b/a NATIVE GEOTHERMAL, Plaintiff, V. Case No. 13-CV-123 GKF-FHM NATIVE, INC., Defendant.

DEFENDANT NATIVE, INC.S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION, FOR IMPROPER VENUE, AND FOR LACK OF STANDING; OR

ALTERNATIVELY, TO DISMISS, STAY OR TRANSFER UNDER THE FIRST-TO-FILE RULE WITH OPENING BRIEF IN SUPPORT

Defendant Native, Inc. files this Motion to Dismiss, based on lack of personal

jurisdiction, improper venue and plaintiffs lack of standing. In the alternative, Defendant Native

requests that the Court dismiss or stay this action, or transfer it to the Western District of Texas,

based on a previously-filed lawsuit pending in that District.

I. OVERVIEW AND SUMMARY OF MOTION

1. Craig Immel filed this pro se trademark infringement action against Defendant

Native regarding Defendants use of the name Native. Defendant Native, however, is a Texas

corporation with its place of business in Austin, Texas. It does not have any offices, employees,

agents or representatives in this District and does not offer or provide any services in this

District. Consequently, Defendant Native is not amenable to personal jurisdiction in this

District. For the same reasons, venue is improper in this District.

2. Moreover, Immel claims he is doing business as Native Geothermal in an

apparent attempt to justify filing this action as a pro se plaintiff. Contrary to Immels

allegations, Native Geothermal is not a d/b/a for Immel, but is a limited liability company

Case 4:13-cv-00123-GKF-FHM Document 12 Filed in USDC ND/OK on 03/21/13 Page 1 of 11

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organized under the laws of Oklahoma. Native Geothermal, LLC, not Immel, obtained a Texas

state trademark registration for Native and has applied for a Federal registration for this name.

Native Geothermal, LLC, not Immel, has repeatedly asserted that it owns rights in the name

Native and has demanded that Defendant stop using the name Native. Thus, Immel lacks

standing to bring this claim of trademark infringement.

3. Finally, based on Native Geothermal, LLCs repeated threats against Defendant

Native and its attempts to generate a likelihood of confusion when no confusion exists,

Defendant Native filed a lawsuit against Native Geothermal, LLC in the Western District of

Texas, seeking a declaratory judgment that Defendant Native was not infringing any trademark

rights of Native Geothermal, LLC, and that Native Geothermal, LLC committed fraud in

prosecuting its Texas state trademark application and its Federal trademark application for

Native (The Texas Lawsuit). Defendant Native also asserts in the Texas Lawsuit that Native

Geothermal, LLC set up a website at buildnative.net in a deliberate attempt to generate

confusion with Defendant Natives website at buildnative.com. Defendant Native filed the

Texas Lawsuit prior to Immels filing of the above-styled lawsuit. For this reason, the above-

styled lawsuit should be dismissed under the first-to-file rule.

4. In the event the Court decides not to dismiss this lawsuit for any of the reasons

stated above, Defendant Native alternatively requests that the Court stay this action or transfer it

to the Western District of Texas, which has personal and subject matter jurisdiction, and where

venue properly lies.

II. BACKGROUND

5. Defendant Native is a leader in green construction in Texas, including the

design and construction of zero energy homes. It also provides consulting, installation and


3

design services in Texas regarding renewable systems, such as solar panels, geothermal heat

pumps, solar hot water systems, rain water collection systems and wind power systems. See

Declaration of Lloyd Lee attached as Exhibit A, 2. In early 2012, Defendant, which had

previously used the name Hill Country Ecobuilders, formally changed its name to Native, Inc.,

because the term native is commonly used in a descriptive sense in connection with services in

the green construction field. Defendant Native has built on this perception by using the domain

name buildnative.com for its website. Lee Dec. 2.

6. Defendant Native operates only in Texas. Lee Dec. 3. It is not licensed in

Oklahoma, nor authorized to conduct business in Oklahoma. Id. It does not have any offices,

employees, agents or representatives in this District or elsewhere in Oklahoma. Id. It does not

provide any services in this District. Id.

7. In or around October, 2012, Lloyd Lee, the president of Defendant Native,

received an email from Craig Immel who said he was with Native Geothermal LLC. Lee Dec.

4, Exh. A-1. Mr. Immel said he had noticed the name change to Native and that Native

Geothermal had used Native Geothermal since 2011. Lloyd Lee called Mr. Immel after

receiving the email to discuss this matter. Lee Dec. 5. Mr. Immel told Mr. Lee that Native

Geothermals business is limited to geothermal drilling, which is a service that Defendant Native

does not provide. Id. Mr. Immel agreed with Mr. Lee that Defendant Native and Native

Geothermal were not competitors, but he said that investors in Native Geothermal were

concerned about possible confusion in the future, which is why he had contacted Defendant

Native. Id.

8. Several weeks after this call, Defendant Native received a letter from Mr. Immel

as managing member of Native Geothermal, LLC. Mr. Immel asserted in the letter that Native


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Geothermal LLC has the exclusive rights in the name Native for a host of services related to

the green construction industry and renewable systems, and demanded that Defendant Native

stop using the name Native. Lee Dec. 6; Exh. A-2.

9. Defendant Native replied to this letter by once again pointing out that Defendant

Native and Native Geothermal were not competitors and that native was a fairly common

descriptive term in the field of green construction. Defendant Native reiterated that it did not

believe it was infringing on Native Geothermals rights. By letter dated January 19, 2013, Mr.

Immel, on behalf of Native Geothermal LLC, responded to Defendant Native by again insisting

that Defendant stop using Native. Lee Dec. 7.

10. Native learned that after Native Geothermal, LLC heard about Defendant Natives

name change, it applied for a federal trademark registration for NATIVE. Lee Dec. 8; See

Declaration of Steven D. Smit attached as Exhibit B, 3, Exh. B-2. In its application, Native

Geothermal claimed to have used Native since at least July 2011 for renewable energy,

namely, solar energy, wind energy and geothermal energy, even though Native Geothermals

business is limited to geothermal drilling. Native Geothermal LLC also applied for a Texas State

trademark registration for NATIVE and the registration was issued on January 3, 2013. Lee Dec.

8; Smit Dec. 4, Exh. B-3. In its Texas application, Native Geothermal claimed to have used

Native for renewable energy, namely, solar energy, wind energy and geothermal energy,

even though Native Geothermals business is limited to geothermal drilling.

11. Defendant Native also learned that Immel purchased the domain name

buildnative.net on December 2, 2012, and created a website for Native Geothermal in which

Native Geothermal claimed to perform many of the same services offered by Defendant Native

on its buildnative.com website. Lee Dec. 9; Smit Dec. 5-6, Exhs. B-4, B-5. Upon


5

information and belief, Native Geothermal took these actions in an attempt to generate customer

confusion between the parties.

12. Based on these events, Defendant Native filed a lawsuit in the Western District of

Texas Austin Division, seeking a declaratory judgment that Defendant Native is not infringing

the trademark rights, if any, that Defendant Native Geothermal has in the name Native (the

Texas Lawsuit). Lee Dec. 10; Smit Dec. 7, Exh. B-6 10. Defendant Native also seeks a

determination as to whether Native Geothermal committed fraud or other wrongful acts in

connection with its representations in the Federal and Texas trademark filings for Native, and a

declaratory judgment that these registrations are invalid. Exh. B-6 10. Additionally, Defendant

Native claims in the Texas Lawsuit that if Native and Native Geothermal LLC are considered

competitors in Texas, Native Geothermal committed acts of unfair competition relating to its

purchase of the domain name buildnative.net and creating a website in which Native Geothermal

claims to perform many of the same services offered by Defendant Native on its buildnative.com

website. Exh. B-6 12.

13. A copy of the complaint was emailed to Mr. Immel the day it was filed. Smit

Dec. 7, Exh. B-7. After unsuccessful attempting to formally serve Native Geothermal, LLC,

through its registered agent several times, formal service of the Texas Complaint occurred on

March 5, 2013. Smit Dec. 8, Exh. B-8.

III. ARGUMENT

A. The Court should dismiss based on lack of personal jurisdiction over Defendant Native.

14. Plaintiff bears the burden of establishing that the Court has personal jurisdiction

over the Defendant Native. OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086,

1091 (10th Cir. 1998). Plaintiff cannot meet this burden. Due process requires that the


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nonresident defendant's conduct and connection with the forum state are such that the

nonresident could have reasonably anticipated being haled into court in that state. Conoco Inc.

v. Agrico Chem. Co., 115 P.3d 829, 835, 2004 OK 83 (citing WorldWide Volkswagen Corp. v.

Woodson, 444 U.S. 286, 297 (1980)). To permit the exercise of personal jurisdiction over a

nonresident defendant, there must exist minimum contacts between the defendant and the forum

State. Intercon, Inc. v. Bell Atlantic Internet Solutions, Inc., 205 F.3d 1244, 1247 (10th Cir.

2000).

15. Defendant Native is a Texas corporation. Lee Dec. 3. It operates only in Texas.

It is not licensed in Oklahoma nor is it authorized to transact business in Oklahoma. It does not

have any offices, employees, agents or representatives in this District or elsewhere in Oklahoma.

It does not provide any services in this District. Lee Dec. 3. Specific jurisdiction does not

exist, because Defendant Native has not purposefully directed its activities at the residents of the

forum, and the litigation does not result from alleged injuries that arise out of or relate to those

activities. See Intercon, 205 F.3d at 1247. Similarly, general jurisdiction does not exist, because

Defendant Native does not have continuous and systematic general business contacts with this

forum. See Monge v. RG Petro-Mach. (Group) Co. Ltd., 701 F.3d 598, 614 (10th Cir. 2012)

(quoting Benton v. Cameco Corp., 375 F.3d 1070, 1080 (10th Cir. 2004).

B. The Court should dismiss based on improper venue.

16. Plaintiff asserts that venue is proper in this District, because he is based in this

District. This is not the proper test. Under 28 U.S.C. 1391, a civil action based on federal-

question jurisdiction, such as the Lanham Act claim alleged by Plaintiff, may be brought only

in (1) a judicial district where any defendant resides, if all defendants reside in the same State;

(2) a judicial district in which a substantial part of the events or omissions giving rise to the


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claim occurred, or a substantial part of property that is the subject of the action is situated; or,

(3) a judicial district in which any defendant is subject to personal jurisdiction at the time the

action is commenced, if there is no district in which the action may otherwise be brought. Id.

This statute does not provide a basis for venue in this District.

17. As described above, Defendant Native does not reside in this District because

it is not subject to personal jurisdiction here. See 28 U.S.C. 1391(c)(2) (A corporation shall be

deemed to reside in any judicial district in which such defendant is subject to the courts personal

jurisdiction with respect to the civil action in question.). Defendant Native is a Texas

corporation and only operates in Texas. It is not licensed in Oklahoma nor is it authorized to

transact business in Oklahoma. It does not have any offices, employees, agents or

representatives in this District or elsewhere in Oklahoma.

18. Moreover, Plaintiffs claim that Defendant should not use the name Native --

is not based on acts or omissions of Defendant Native in this District, because Defendant does

not provide any services in this District, much less any services under the name Native. Lee

Dec. 3. Immel also cannot show that venue is proper based on the third prong of 28 U.S.C.

1391, because this action could have been brought in the Western District of Texas, where

Defendant Native resides and uses the Native name, and where a previously-filed action is

pending.

C. The Court should dismiss based on lack of standing.

19. Standing is a threshold question in every federal case, involving a combination

of constitutional limitations on federal court jurisdiction and prudential limitations on its

exercise. Warth v. Seldin, 422 U.S. 490, 498 (1975). The prudential standing doctrine

encompasses various limitations, including the general prohibition on a litigant's raising another


8

person's legal rights. The plaintiff generally must assert his own legal rights and interests, and

cannot rest his claim to relief on the legal rights or interests of third parties. See Wilderness

Soc'y v. Kane Cnty., Utah, 632 F.3d 1162, 1168 (10th Cir. 2011) (en banc). When making a rule

12(b)(1) motion, a party may go beyond the allegations in the complaint to challenge the facts

upon which jurisdiction depends, and may do so by relying on affidavits or other evidence

properly before the court. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995).

20. Immel claims he is doing business as Native Geothermal in an apparent attempt to

justify filing this action as a pro se plaintiff when there is already a pending action in Texas

between Defendant Native and Native Geothermal. The evidence attached hereto shows

otherwise. Contrary to Immels allegation, Native Geothermal is not a d/b/a for Immel, but is a

limited liability company organized under the laws of Oklahoma. Smit Dec. 2, Exh.B-1.

Native Geothermal, LLC, not Immel, obtained a Texas state trademark registration for Native

and has applied for a Federal registration for this name. Smit Dec. 3, Exhs. B-2, B-3. Native

Geothermal, LLC, not Immel, has repeatedly asserted that it owns the name Native and has

demanded that Defendant stop using the name Native. Lee Dec. 4-7. Thus, Immel lacks

standing to bring this claim of infringement of purported trademark rights that belong to Native

Geothermal, LLC.

D. Alternatively, the Court should dismiss, stay or transfer this action based on the first-filed Texas Lawsuit.

21. In addition to the other reasons stated above as to why this Court should dismiss

this action, the Court could also dismiss this action or transfer it to the Western District of Texas

Austin Division, based on the first-to-file rule. The Tenth Circuit generally follows the first-to-

file rule. See Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir. 1982)

(explaining general rule that when two courts have concurrent jurisdiction, the first court in


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which jurisdiction attaches has priority to consider the case); O'Hare Intl Bank v. Lambert, 459

F.2d 328, 331 (10th Cir. 1972) (It is well established in this Circuit that where the jurisdiction

of a federal district court has first attached, that right cannot be arrested or taken away by

proceedings in another federal district court.); Cessna Aircraft Co. v. Brown, 348 F.2d 689, 692

(10th Cir. 1965) (The rule is that the first federal district court which obtains jurisdiction of

parties and issues should have priority and the second court should decline consideration of the

action until the proceedings before the first court are terminated.

22. As discussed above, Defendant Native filed the Texas Lawsuit, which includes

much of the same subject matter as the instant case, and provided notice to Plaintiff, prior to

Plaintiffs pro se filing of the above-entitled action. There is no question that the District Court

in the Western District of Texas has jurisdiction over the parties and that venue is proper in that

forum.

23. In the event that this Court has reservations about dismissal or transfer of this

action, Defendant Native alternatively urges the Court, at minimum, to stay this action. As

described above, the generally accepted rule is that the court in which the first-filed case was

brought should have the opportunity to address the first-filed rule and otherwise with regard to

determining which case should proceed. Accordingly, at a minimum, this Court should stay the

action to provide the Texas District Court with the opportunity to resolve these threshold issues.

WHEREFORE, Defendant Native, Inc. respectfully requests that Plaintiffs Complaint be

dismissed, or alternatively, that this action be stayed or transferred to the Western District of

Texas Austin Division. Defendant Native, Inc. further requests such other or additional relief

to which it may be justly entitled.


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Dated: March 21, 2013 Respectfully submitted,

s/ Todd A. Nelson

Todd A. Nelson, OBA #15317 FELLERS, SNIDER, BLANKENSHIP, BAILEY & TIPPENS, P.C. 321 S. Boston, Ste. 800 Tulsa, OK 74103-3318 Telephone: (918) 599-0621 Facsimile: (918) 583-9659 E-Mail: [email protected] Steven D. Smit (Pro Hac Vice admission pending) State Bar No. 18527500 GRAVES, DOUGHERTY, HEARON & MOODY, P.C. 401 Congress Avenue, Suite 2200 Austin, Texas 78701 Telephone: (512) 480-5653 Facsimile: (512) 480-5853 E-Mail: [email protected] Attorneys for Defendant, Native, Inc.

#23948


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CERTIFICATE OF SERVICE

I hereby certify that on the 21st day of March, 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system and that I served the following via U.S. certified mail, return receipt requested:

Craig Immel, Pro Se Plaintiff P.O. Box 1586

Tulsa, Oklahoma 74101

s/ Todd A. Nelson Todd A. Nelson


UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OKLAHOMA

CRAIG IMMEL, d/b/a NATIVE GEOTHERMAL,

Plaintiff,

V.

NATIVE, INC., Defendant.

Case No. 13 CV 123 GKF-FHM

DECLARATION OF LLOYD LEE

Lloyd Lee declares as follows:

1. My name is Lloyd Lee. I am over the age of twenty-one, suffer no legal

disabilities, and am fully competent to make this declaration. The statements contained herein

are within my personal knowledge and are true and correct.

2. I am president of Native, Inc., the named defendant in this action. Native is a

leader in "green" construction in Texas, including the design and construction of zero energy

homes. It also provides consulting, installation and design services in Texas regarding renewable

systems, such as solar panels, geothermal heat pumps, solar hot water systems, rain water

collection systems and wind power systems. Our company Native previously used the name Hill

Country Ecobuilders. In early 2012, we formally changed the name of the company to Native,

Inc. One reason we changed the name is because "native" is commonly used when talking about

services in the "green" construction field. Defendant Native has built on this perception by using

the domain name "buildnative.com" for its website.

3. Defendant Native operates only in Texas. It is not licensed in Oklahoma and is

not authorized to conduct business in Oklahoma. Native does not have any offices, employees,

Case 4:13-cv-00123-GKF-FHM Document 12-1 Filed in USDC ND/OK on 03/21/13 Page 1 of 5

MKimballTypewritten TextExhibit "A"

agents or representatives in the Northern District of Oklahoma or elsewhere in Oklahoma.

Additionally, Native does not offer or provide any services in the Northern District of Oklahoma.

4. In October 2012, I received an email from Craig Immel who said he was with

Native Geothermal LLC. I have attached as Exhibit A-I, a true and correct copy of this email.

Mr. Immel said he had noticed our name change to Native and that company used the name

Native Geothermal.

5. I called Mr. Immel after receiving the email todiscussthismatter.Mr. Immel told

me that Native Geothermal's business is limited to geothermal drilling, which is a service that

Defendant Native does not provide. Mr. Immel agreed with me that Defendant Native and Native

Geothermal were not competitors, but he said the investors in Native Geothermal were

concerned about possible confusion in the future, which is why he had contacted us.

6. On or about November 26, 2012, Defendant Native received a letter from Mr.

Immel as managing member of Native Geothermal, LLC. Mr. Immel asserted in the letter that

Native Geothermal LLC has the exclusive rights in the name "Native" for renewable energy

products and services, and was demanding that Defendant Native stop using the name "Native." I

have attached as Exhibit A-2, a true and correct copy of this letter.

7. Defendant Native replied to this letter by once again pointing out that Defendant

Native and Native Geothermal were not competitors and that 'native" was a fairly common

descriptive term in the field of "green" construction. By letter dated January 19, 2013, Mr.

Immel, on behalf of Native Geothermal, responded to Defendant Native by again claiming that

Native Geothermal owned the rights in the name Native and demanding that Defendant stop

using "Native."


8. Native Geothennal, LLC had applied for a federal trademark registration for

NATIVE after Mr. Immel learned about our name change. In that application, Native

Geothennal claims to have used NATIVE since 2011 for a wide variety of services in the

renewable energy field. We also learned that Native Geothennal LLC applied for a Texas State

trademark registration for NATIVE and made the same claim about its services in Texas. These

representations are contrary to Mr. Immel's representations to me that Native Geothennal was

only involved geothennal drilling.

9. We also learned that Mr. Immel purchased the domain name buildnative.net and

created a website in which Native Geothennal claimed to perfonn many of the same services

offered by Defendant Native on its buildnative.com website.

10. Based on these facts, Defendant Native filed a lawsuit in the Western District of

Texas - Austin Division on January 25, 2013, seeking, among other things, a declaratory

judgment that Defendant Native is not infringing the trademark rights, if any, that Defendant

Native Geothennal has in the name "Native" ("the Texas Lawsuit").

11. I declare that all statements made herein are true, and further that these statements

were made by me with knowledge that willful false statements and the like so made are

punishable by fine or imprisonment, or both, under 1001 of Title 18 of the United States Code.

March 21,2013

LLOYD LEE

1849087.13/2112013


From: Immel Date: October 16, To:~~~~~~~~~ Subject; 'satin GeQtbermat

Dear Lloyd,

I hope this 11l.essagefinds you domg and business is good,

My name is Craig Immel, and I founded a business called Nath'e Geothemlal LLC in m commerce in Oklahoma, Texas and Colorado since July 1,

L \Ye ha'\"e been using the Nath,t Geothermal nllllie

Since our businesses ha';e similax nlU1H!S, md ' ... e offer similar goods and ser,:ices, I believe there is a strong chance that our potential customers could easily confused, Since Native Geothemlai has lUI exdush:e trademark registration pending in the U,S. Patent and Trademark Office [ L I \yanled to give and your company a friendly heads up before you invest heaYily in using the Nati\"e brand.

If you have any qJ;H~stions,pleasebe in

Respectfull y, Craig

Craig Im.mellEED~ AP iG'SHPA AO:r1~di~~ ~~a:n*Z

X ati"f~GeolbE'f'malcon:l Mobile: 1.91S.9;~,S039

F:ree: ~~=~~~= 'Ol'ltlL",,, 1 '" ~><

EXHIBIT

j A--I


November 26, 2012

Via Email and USPS Certified Mail Lloyd Lee 201 Cole Street Austin, TX 78737

Dear Lloyd,

Thank you for your time on the telephone to discuss your company's recent use of the name "Native."

In selecting a name for my new company in the Spring of 2011, my team and I invested significant time, effort and expense in thorough research and due diligence to ensure that other companies in the renewable energy and green building industry were not already using the Native name. As you know, I have used Native in commerce since July 2011. We have also invested significant time, effort and expense in marketing and promoting Native geothermal products and services in Oklahoma, Texas, and Colorado and via the Internet.

My company already has trademark rights in Oklahoma, Texas and Colorado, and will soon have Federal trademark rights nationwide. We can not foresee any scenario that would allow your company and my own to both use the name "Native" to market our products and services. There is simply too much likelihood of confusion amongst our potential and existing customers.

With these facts in mind, I must request that you discontinue the use of the word "Native" in all of its forms and/or combinations with other words or logos, and in marketing and offering of your company's renewable energy products and services. I would expect to see all usage of the name "Native" removed from your website, hard copy marketing materials, all social media profiles, etc. no later than December 31, 2012. Please know that my preference is not to engage in litigating this matter, and I wish you great success in your business.

Best regards,

Craig Immel Managing Member Native GeothermalllC PO Box 1586 Tulsa, OK 74101

EXHIBIT


UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OKLAHOMA

CRAIG IMMEL, d/b/a NATIVE GEOTHERMAL,

Plaintiff,

V.

NATIVE, INC., Defendant.

Case No. 13 CV 123 GKF-FHM

DECLARATION OF STEVEN D. SMIT

Steven D. Smit declares as follows:

1. My name is Steve Smit. I am over the age of twenty-one, suffer no legal

disabilities, and am fully competent to make this declaration. The statements contained herein

are within my personal knowledge and are true and correct.

2. I am one of the attorneys for Native, Inc. I have attached to my declaration as

Exhibit B-1, a true and correct copy of a report from the Oklahoma Secretary of State showing

that Native Geothermal, LLC is a limited liability company organized under the laws of

Oklahoma. The report also shows that Craig Immel is listed as the Managing Member for Native

Geothermal, LLC.

3. I have attached to my declaration as Exhibit B-2, a true and correct copy of

documents from the website for the United States Patent and Trademark Office (USPTO),

showing that Native Geothermal, LLC filed an application to register the mark Native on

October 7, 2012.

4. I have attached to my declaration as Exhibit B-3, a true and correct copy of

records from the Texas Secretary of State showing that Native Geothermal, LLC filed an


MKimballTypewritten TextExhibit "B"

application to register the mark Native as a Texas state trademark and was issued a Texas state

registration on January 3,2013.

5. I have attached to my declaration as Exhibit B-4, a true and correct copy of screen

shots taken on January 14,2013 of the "Native" website located at buildnative.net.

6. I have attached to my declaration as Exhibit B-5, a true and correct copy of the

screen shot for the "Whois" report for the domain name buildnative.net, showing that Craig

Immel of Native Geothermal, LLC is the owner of the buildnative.net domain name.

7. I have attached to my declaration as Exhibit B-6, a true and correct copy of the

Complaint filed in the Texas Lawsuit. The Complaint was emailed to Mr. Immel on the same day

that it was filed. I have attached to my declaration as Exhibit B-7 a true and correct copy of the

cover letter to Mr. Immel that accompanied the Complaint.

8. We unsuccessful attempted to formally serve Native Geothermal, LLC, through

its registered agent, Mr. Immel several times, before finally perfecting service on March 5,2013.

I have attached to my declaration as Exhibit B-8, a true and correct copy of the Affidavit of

Service showing service of the Texas Complaint on Mr. Immel.

9. I declare that all statements made herein are true, and further that these statements

were made by me with knowledge that willful false statements and the like so made are

punishable by fine or imprisonment, or both, under 100 I of Titl~~t~~tates Code.

1848201.1 3/20/2013


NATIVE GEOTHERMAL LLC

Details

Filing Number: 3512331667

Name Type: Legal Name

Status: In Existence

Corp type: Domestic Limited Liability Company

Jurisdiction: Oklahoma

Formation Date: 11 Oct 2011

Registered Agent Information

Name: CRAIG IMMEL

Effective: 9 Oct 2012

Address: 4203 SOUTH CINCINNATI AVENUE

City, State, ZipCode: TULSA OK 74101

EXHIBIT

I "-,


Trademark Electronic Search System (TESS) Page 10f2

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NATIVE NATIVE Word Mark

Goods and Services

IC 004. US 001 006015. G & S: Renewable energy, namely, solar energy, wind energy and geothermal energy. FIRST USE: 20110721. USED IN ANOTHER FORM The mark was first used anywhere in a different form other than that sought to be registered at least as early as 07/21/2011. FIRST USE IN COMMERCE: 20110731

Standard Characters Claimed Mark Drawing Code (4) STANDARD CHARACTER MARK Serial Number 85748271 Filing Date October 8,2012 Current Basis 1A Original Filing 1A Basis Owner (APPLICANT) Native Geothermal LIMITED LIABILITY COMPANY OKLAHOMA PO Box 1586 Tulsa

OKLAHOMA 74101 Type of Mark TRADEMARK Register Live/Dead Indicator

PRINCIPAL

LIVE

http://tess2.uspto.govibin/showfield?f=doc&state=4006:9r1436.8.55

EXHIBIT

f,-2. 1/24/2013


Trademark Electronic Search System (TESS) Page 2 of2

I.HOME I SITE INDEX I SEARCH I eBUSINESS I HELP I PRIVACY POLICY

http://tess2. uspto.gov Ibinishowfield?f=doc&state=4006: 9r 143 6. 8. 5 5 1124/2013


Trademark/Service Mark Application, Principal Register

TEAS Plus Application Serial Number: 85748271 Filing Date: 10/08/2012

NOTE: Data fields with the * are mandatory under TEAS Plus. The wording "(if applicable)" appears where the field is only mandatory under the facts of the particular application.

The table below presents the data as entered.

TEAS Plus YES

MARK INFORMATION

* MARK

* STANDARD CHARACTERS

USPTO-GENERA TED IMAGE

LITERAL ELEMENT

YES

YES

NATIVE

*MARK STATEMENT The mark consists of standard characters, without claim to any particular font, style, size, or color.

REGISTER Principal

APPLICANT INFORMATION

*OWNER OF MARK Native Geothermal

*STREET PO Box 1586

*CITY Tulsa

* STATE (Required for U.S. applicants)

*COUNTRY

*ZIP/POSTAL CODE

Oklahoma

United States

(Required for U.S. 74101 applicants only)


PHONE 888.978.8039

EMAIL ADDRESS [email protected]

AUTHORIZED TO COMMUNICATE VIA Yes EMAIL

WEBSITE ADDRESS www.NativeGeothermal.com

LEGAL ENTITY INFORMATION

*TYPE LIMITED LIABILITY COMPANY

* STATE/COUNTRY WHERE LEGALLY Oklahoma ORGANIZED

GOODS AND/OR SERVICES AND BASIS INFORMATION

* INTERNATIONAL CLASS

IDENTIFICATION

*FILING BASIS

FIRST USE ANYWHERE DATE

FIRST USE IN COMMERCE DATE

004

Renewable energy, namely, solar energy, wind energy and geothermal energy

SECTION l(a)

At least as early as 07/21/2011

At least as early as 07/31/2011

SPECIMEN FILE NAME(S)

ORIGINAL PDF FILE

CONVERTED PDF FILE(S)

(1 page)

ORIGINAL PDF FILE

CONVERTED PDF FILE(S)

(2 pages)

SPECIMEN DESCRIPTION

\\TICRS\EXPORT16\IMAGEOUT16\857\482\85748271\xmll\FTKOOO5.JPG

Native Geothermal website screenshot (.pdf), Native Geothermal press release 7-31-2011 (.pdf)

ADDITIONAL STATEMENTS SECTION

*TRANSLA TION (if applicable)

*TRANSLITERATION (if applicable)


*CLAIMED PRIOR REGISTRATION (if applicable)

*CONSENT (NAMEILIKENESS) (if applicable) *CONCURRENT USE CLAIM (if applicable)

USE OF THE MARK IN ANOTHER FORM

MISCELLANEOUS STATEMENT

The mark was first used anywhere in a different form other than that sought to be registered at least as early as 07/2112011, and in commerce at least as early as 07/30/2011.

The mark consists of standard characters, without claim to any particular font, style, size, or color.

CORRESPONDENCE INFORMATION

*NAME Native Geothermal

FIRM NAME Native Geothermal

* STREET PO Box 1586

*CITY Tulsa

*STATE (Required for U.S. Oklahoma applicants)

*COUNTRY United States

*ZIP/POSTAL CODE 74101

PHONE 888.978.8039

*EMAIL [email protected];[email protected]

* AUTHORIZED TO COMMUNICATE VIA Yes EMAIL

FEE INFORMATION NUMBER OF CLASSES

FEE PER CLASS

*TOTAL FEE PAID

1

275

275

SIGNATURE INFORMATION

* SIGNATURE

* SIGNATORY'S NAME

ICraig Immel!

Craig Immel


* SIGNATORY'S POSITION

SIGNATORY'S PHONE NUMBER

* DATE SIGNED

Principal

888-978-8039

10/08/2012


Trademark/Service Mark Application, Principal Register

TEAS Plus Application

Serial Number: 85748271 Filing Date: 10/08/2012

To the Commissioner for Trademarks:

MARK: NATIVE (Standard Characters, see The literal element of the mark consists of NATIVE. The mark consists of standard characters, without claim to any partiCular font, style, size, or color.

The applicant, Native Geothermal, a limited liability company legally organized under the laws of Oklahoma, having an address of

PO Box 1586 Tulsa, Oklahoma 74101 United States

requests registration of the trademark/service mark identified above in the United States Patent and Trademark Office on the Principal Register established by the Act of July 5, 1946 (15 U.S.C. Section 1051 et seq.), as amended, for the following:

For specific filing basis information for each item, you must view the display within the Input Table. International Class 004: Renewable energy, namely, solar energy, wind energy and geothermal

energy

In International Class 004, the mark was first used by the applicant or the applicant's related company or licensee at least as early as 07/2112011, and first used in commerce at least as early as 07/3112011, and is now in use in such commerce. The applicant is submitting one specimen(s) showing the mark as used in commerce on or in connection with any item in the class of listed goods and/or services, consisting of a(n) Native Geothermal website screenshot (.pdf), Native Geothermal press release 7-31-2011 (.pdf).

Original PDF file:

Converted PDF file(s) (1 page)

Original PDF file:

Converted PDF file(s) (2 pages)


The mark was first used anywhere in a different form other than that sought to be registered at least as early as 07/2112011, and in commerce at least as early as 07/3012011.

The mark consists of standard characters, without claim to any particular font, style, size, or color.

For informational purposes only, applicant's website address is: www.NativeGeothermal.com The applicant's current Correspondence Information:

Native Geothermal Native Geothermal PO Box 1586 Tulsa, Oklahoma 74101 888.978.8039(phone) [email protected];[email protected] (authorized)

A fee payment in the amount of$275 has been submitted with the application, representing payment for 1 class(es).

Declaration

The undersigned, being hereby warned that willful false statements and the like so made are punishable by fine or imprisonment, or both, under 18 U.S.C. Section 1001, and that such willful false statements, and the like, may jeopardize the validity of the application or any resulting registration, declares that he/she is properly authorized to execute this application on behalf of the applicant; he/she believes the applicant to be the owner of the trademark/service mark sought to be registered, or, if the application is being filed under 15 U.S.C. Section 1051(b), he/she believes applicant to be entitled to use such mark in commerce; to the best of his/her knowledge and belief no other person, firm, corporation, or association has the right to use the mark in commerce, either in the identical form thereof or in such near resemblance thereto as to be likely, when used on or in connection with the goods/services of such other person, to cause confusion, or to cause mistake, or to deceive; and that all statements made of his/her own knowledge are true; and that all statements made on information and belief are believed to be true.

Signature: /Craig Immel! Date Signed: 10/08/2012 Signatory's Name: Craig Immel Signatory's Position: Principal

RAM Sale Number: 19147 RAM Accounting Date: 10/09/2012

Serial Number: 85748271 Internet Transmission Date: Mon Oct 08 16:00:12 EDT 2012 TEAS Stamp: USPTOIFTK-98.178.158.87-2012100816001298 7160-85748271-490ce632d42876885ba4bd4b76 539481 0Ia-CC-19147 -20121008135502233085


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PRWeb Native Geothermal Offers Cost-Effective Systems for Cooling and Heating Buildings

The slimmer's soaring temperatures have many property owners looking to invest in energy efficient, reliable and lalr maintenance cooling equipment for their bUildings. The populari(v of enviromnentalZv friendZv grollnd source heat pllmp .s:vstems is growing quickZv for residential and commercial bUildings. New companies like Native Geothermal are creating innovative strategies for developing geothermal heating and cooling power. Tulsa, OK July 31, 2011 -- Record electricity demand driven by extreme summer heat has put renewable energy in the spotlight as property owners, businesses and communities seek reliable, cost-effective ways to cool their buildings. Geothennal heat pump technology has seen growing interest recently, especially in areas of the country that tend to experience extreme temperatures in both summer and winter. By tapping into the constant temperature of the earth just below ground level, geothermal systems can provide clean, abundant heating and cooling power 24/7. Ground source heat pumps, also known as geoexchange systems, can also supply hot water for domestic use, or fiw pools and hottubs.

With rising energy costs and the desire for clean, renewable sources of power, geothermal has emerged as a promising technology. Although geothermal systems can have higher upfront installation costs than traditional HV AC systems, the systems typically pay for themselves quickly through much lower operating costs. Nationally, there is growing awareness of the economic and environmental benefits of geothenllal energy. According to a new report from Pike Research, annual geothermal unit shipments willmore than double by 2017, growth that will also be driven by tax incentives and building et1iciency policy support.

Natiye Geothermal is a new business created to provide innovative solutions for developing, financing and installing geoexchange systems, especially for large properties like senior housing facilities, schools, hotels and government buildings. The finn also assists Oklahoma, Texas and Colorado property owners with collecting various utility and government incentives for energy efficiency, including the uncapped Federal tax credits for

. residential and commercial ground source heat pump systems.

###

PRWeb ebooks - Another online visibility tool from PRWeb


PRWeD Contact Information Cloaig Immel Native Geothennal bttp://NativeGeQtbermal.cQm 888-978-8039

Online Web 2.0 Velosion You can read the online version of this press release

Page 212

If you have any questions regarding information in these press releases please contact the company listed in the press release. Our complete disclaimer appears llillil. - PRWeb ebooks - Another QQ]jjle vi~ol from PRWeb


R&giatration Numb&r: 801699156 R&gistration Date: Status: RegIstered Date of ExpiratiDn: Classification(s~: i UO!iC

Native Green Building Solutions I Powered by Native Geothermal Page 1 of 1

Native Green Building Solutions Powered by NativeTM Geothermal

Since 2011, we've offered Native brand geothermal design, development, consulting and construction services throughout Oklahoma, Texas and Colorado. Now, we're teaming up with sister company, GPF Building Solutions, to offer even more valuable energy and environmental solutions for your home, business or investment property.

Contact us today to learn how our NativeTM green building and renewable energy solutions work together to improve indoor comfort and health, your local environment, and your bottom line.

EXHIBIT

I ?I-If http://buildnative.netl 1/24/2013


About Us I Native Green Building Solutions Page 1 of 1

Native Green Building Solutions Powered by Native Geothermal

About Us Native Geothermal and GPFTM Solutions have joined forces to offer Native Green Building Solutions throughout Oklahoma, Texas and Colorado.

Over the years, we've visited hundreds of homes, businesses, investment properties and schools to evaluate the buildings' energy and environmental performance, and to investigate the potential for energy efficiency upgrades and renewable energy systems like geothermal. More often than not, the best solution is a combination of cost effective, common sense strategies. By offering a full range of resource efficiency and renewable energy solutions, Native Green Building Solutions can offer a unique combination of convenient of turn-key sustainable design and construction services.

Contact us today to learn more.

http://buildnative.net/about-us/ 1124/2013


Green Building Services I Native Green Building Solutions Page 1 of 1

Native Green Building Solutions Powered by Native Geothermal

Green Building Services At Native, we offer a wide range of valuable solutions, all designed to meet any of your economic, environmental or social objectives. Our experts have the knowledge and experience to provide cost effective, common sense sustainability solutions for any size home, business or investment property.

ENERGV STAR Benchmarking LEED Consulting Investment Analysis Renewable Energy Energy Assessments Insulation Systems Project Management Thermal Imaging & Analysis Rebates & Incentives Education & Training Sustainable Communities

us to learn more.

http://buildnative.netlservices/ 1124/2013


Mark Searched:

Marks With Similar Ownership

[email protected] m (or related entities)

BUILDNATIVE,ORG DN-3

BUILDNATIVE.lNFO DN-4

20 13, Corsearch. All Rights Reserved.

BuildNative

DN-2

COMPANY: [email protected] DOMAIN EXPIRATION 12/02/2013 DATE: RECORD CREATED ON: 12/02/2012 REGISTRAR: DOMAIN NAME: DOMAIN STATUS: WHOIS RECORD:

GODADDY.COM, LLC BUILDNATIVE.NET ACTIVE Domain Name: BUILDNATIVE.NET Registrar: GODADDY.COM, LLC Whois Server: whois.godaddy.com Referral URL: http://registrar.godaddy.com Name Server: NS37.DOMAINCONTROL.COM Name Server: NS38.DOMAINCONTROL.COM Status: c1ientDeleteProhibited Status: c1ientRenewProhibited Status: c1ientTransferProhibited Status: c1ientUpdateProhibited Updated Date: 22-dec-20 12 Creation Date: 02-dec-20 12 Expiration Date: 02-dec-20 13 Last update of whois database: Mon,

21 Jan 2013 13:55:03 UTC Registered through: GoDaddy.com, LLC (http://www.godaddy.com) Domain Name: BUILDNATIVE.NET

Created on: 02-Dec-12 Expires on: 02-Dec-13 Last Updated on: 22-Dec-12 Registrant: [email protected] PO Box 1586 Tulsa, Oklahoma 74101 United States Administrative Contact: Immel,

EXHIBIT j -e,.t;

Page 190 of 256


Case 1:13-cv-00067 Document 1 Filed 01/25/13 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

NATIVE, INC.,

Plaintiff, v. CIVIL ACTION NO. 1:13-cv-67

NA TIVE, GEOTHERMAL, LLC,

Defendant.

PLAINTIFF'S ORIGINAL COMPLAINT

Plaintifl: Native, Inc., (hereinafter "Plaintiff' or "Native"), files this Complaint,

complaining of Defendant Native Geothermal, LLC. In support thereof, Plaintiff Native

respectfully would show the Court as follows:

I. PARTIES

1. Plaintiff Native is a Texas corporation having its principal place of business in

Austin, Texas.

2. Defendant Native Geothemlal is a nonresident limited liability company based in

Tulsa, Oklahoma. It may be served by serving its Managing Member, Craig Immel, 4203 South

Cincinnati Avenue, Tulsa, OK 74101.

n. JURISDICTION AND VENUE

3. This action arises primarily under the Federal Declaratory Judgment Act, 28

U.S.c. 220] et seq., Section 43(a) of the Lanham Act, 15 U.S.c. 1125(a), and under the

supplemental jurisdiction provisions of 28 U.S.c. 1367(a). There is a justiciable controversy

between Plaintiff and Defendant, namely Defendant Native Geothermal is alleging that Plaintiff

Native is committing trademark infringement regarding Plaintiff's use of the name "Native."

EXHIBIT i f'J _, _ i \:) "



Moreover, Defendant Native Geothennal is apparently attempting to sow confusion by

appropriating the domain name "buildnative.net," when it knows Plaintiff Native has been using

'buildnative.com," and by claiming to provide services it does not provide. Personal jurisdiction

and venue are proper in this District under the provisions of 28 U.S.c. 1391(b), because

Defendant Native Geothermal claims to conduct business in this judicial district and has sent

cease and desist letters to Plaintiff Native in this judicial district.

Ill. FACTS

4. Plaintiff Native is a leader in "green" construction in Texas, including the design

and construction of zero energy homes. It also provides consulting services regarding the

installation and use of renewable systems, such as Solar Panels, geothermal heat pumps, solar

hot water systems, rain \vater collection systems and wind power systems. In early 2012,

Plaintiff, which had previously used the name Hill Countl)' Ecobuilders, fonnally changed its

name to Native, Inc., because the term "native" is commonly used in a descriptive sense in

connection with services in the "green" construction field. Plaintiff has built on this perception

by using the domain name "buildnative.com" for its website.

5. In or around November 2012, Craig Immel, the managing member of Defendant

Native Geothermal, sent a letter to Native, claiming that Native Geothermal has the exclusive

rights in the mark "Native" for a myriad of services related to the "green" construction industry

and renewable systems, and demanding that Plaintiff stop using the name "Native." Plaintiff's

representative discussed this matter with Mr. Immel and learned from Mr. Immel that Native

Geothermal's business is limited to geothermal drilling; a service that Plaintiff does not provide.

In other words, Plaintiff and Defendant are not actually competitors. The likelihood of confusion

is lessened even more, because Plaintiff's and Detendant's services are provided to

2



knowledgeable customers on a contractual basis. Moreover, upon int


IV. CAUSES OF ACTION

COUNT 1- DECLARATORY JUDGMENT

9. The allegations in Paragraphs 1-8 are incorporated herein by reference.

10. There is an actual and existing justiciable controversy between Plaintiff Native

and Defendant Native Geothetmal relating to Defendant's allegations that Plaintiff is infringing

Defendant's trademark rights in "Native." Pursuant to the Federal Declaratory Judgment Act, 28

U.S.c. 2201, et seq., Plaintiff Native is entitled to a declaratory judgment that Plaintiff is not

intringing the trademark rights, if any, that Defendant has in the name 'Native." Plaintiff Native

is also entitled to a determination as to whether Defendant committed fraud or other wrongful

acts in connection with its representations in the Federal and Texas trademark filings for "Native.

If the Court determines that Defendant received trademark registrations for "Native" through

fraud or other wrongful acts, Plaintiff Native is entitled to a declaratory judgment that these

registrations are invalid.

COUNT 2 - UNFAIR COMPETITION

11. The allegations in Paragraphs 1-8 are incorporated herein by reference.

12. Defendant Native Geothermal claims that Plaintitf Native is a competitor. In an

attempt to sow confusion, Native Geothermal purchased the domain name buildnative.net and

has created a website in which Native Geothermal claims to perform many of the same services

offered by Plaintiff Native on its buildnative.com website, even though Native Geothennal's

business is limited to geothermal drilling. To the extent that Plaintiff Native and Defendant

Native Geothermal are "competitors," Defendant's actions violate Section 43(a) of the Lanham

Act (15 U.S.C. lI25(a)) and Texas unfair competition law.

4



13. If Defendant continues this inappropriate conduct, Plaintiff Native will incur

damages for at least the monetary expenditures that Plaintiff Native will be required to make on

corrective advertising and education to inform consumers about the truth; and Plaintiff Native's

costs incurred in prosecuting this matter.

PRAYER

WHEREFORE, Plaintitf Native prays for relief against Defendant Native Geothermal, as

follows:

a. The Court enter a declaratory judgment, declaring that Plaintiff has not infringed on the

trademark rights, if any, of Defendant Native Geothermal in the Native name, that Defendant's

Texas trademark registration for "Native" is invalid and that any registration issuing from

Defendant's pending federal trademark application for Native is invalid;

b. That the Court enter judgment against Defendant and in favor of Plaintiff for any

actual damages incurred by Plaintiff as a result of Defendant's actions regarding the

buildnative.net domain site; and

c. That the Court grant Plaintiff Native such other and further relief to\vhich it may be

entitled.

Respectfully submitted,

Is/ Steven D. Smif Steven D. Smit State Bar]D No. 18527500 ssmitc{i)'gdhm.com Matthew C. Powers Texas State Bar No. 24046650 [email protected]

5



Of Counsel: GRAVES, DOUGHERTY, FlEA RON & MOODY A Professional Corporation 401 Congress Ave., Suite 2200, Austin, TX 78701 P.O. Box 98, Austin TX 78767-0098 (512) 480-5600 (512) 480-5853 Telecopy

A TTORNEYS FOR PLAINTIFF NATIVE, INC.

6


I1 GRAVES DOUGHERTY HEARON & MOODY

A PROfESSIONAL CORPORATION

Steven D. Smit 512.480.5653 512.480.5853 (fax) [email protected]

January 25, 2013

Via email: [email protected]

Mr. Craig Immel Native Geothermal, LLC P.O. Box 1586 Tulsa, Oklahoma 74101

Mailing Address: P.O. Box 98 Austin, TX 78767

Re: Case No. l:13-CV-67; Native, Inc. v. Native Geothermal, LLC; In the United States District Court, Western District of Texas, Austin Division

Dear Mr. Immel:

We represent Native, Inc. ("Native"). I have enclosed a courtesy copy of Plaintiff's Original Complaint which was filed in Austin this morning by Native. Please understand that Native's decision to file a lawsuit in this matter was not made lightly, and Native continues to be interested in trying to resolve this matter before the parties incur additional costs. Please have your attorney call me.

I look forward to hearing fi'om you.

SDS/jyl Enclosure cc: Lloyd Lee

Sincerely,

401 Congress Avenue Suite 2200 Austin, Texas 78701 512.480.5600 www.gdhm.com EXHIBIT

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taH to deLhtit vviE ht etlH'ti"d ;l.g:dhH ynu fbr the relief &km;mded in the n,mD"mm. "i'

Case 1:13-cv-00067-SS Document 5 Filed 03/13/13 Page 2 of 2

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Motion to DismissMotion to Dismiss Ex AEx B Motio nto Dismiss

Native Motion to Dismiss

Documents

Native Motion to Dismiss