Brian D. Smith of Colorado Patents in the News
|Vampire fangs suit worth $2.4 million
By John Accola, News Staff Writer
A Boulder fang-maker who sued his former business partners for launching a rival vampire costume venture has been awarded triple damages and interest totaling more than $2.4 million.
In a 20-page ruling, a federal judge in Denver said additional damages were appropriate in part because the defendants had provided "incomplete or false testimony" in a case that proved intentional violations of patent laws.
U.S. District Court Judge Lewis Babcock's judgment against Ram Southwest of New Mexico comes a year after a jury's initial patent damage award of about $300,000 to the plaintiffs, Donald Nutting and his fang-manufacturing company, Foothills Distributing Co.
Apart from the jury award, Babcock ruled Nutting should be awarded three times the $380,000 in lost profits caused by the defendants' illegal vampire knockoff product.
"It was a bitter, hard-fought case and it went for seven days at trial," said Nutting's attorney, Brian Smith. "We obviously think the judge and the jury made the right decision."
Mary and Ron Sheppeard, Ram's owners, could not be reached for comment.
In his ruling Friday, Babcock cited provisions in the federal Landham Act that provide for triple damages in cases where there has been willful patent infringement and unfair profiteering. He said the evidence showed the Sheppeards, former distributors for Foothills Distributing, had wrongfully repackaged or copied the Boulder company's Custom Dracula Fangs since 1995, a year after Nutting applied for his plastic fangs patent.
The judge also determined Nutting was entitled to reimbursement of reasonable legal costs, admonishing the Sheppeards' attorneys for "unprofessional behavior" at trial and during the three years of litigation.
Attorneys at Peacock, Myers & Adams, the Albuquerque law firm that represented the Sheppeards, did not return phone calls.
Smith said that with attorney fees, the award is likely to top $3 million. Although the Sheppeards say they are out of business, Smith said the couple appears to be covered by a general corporate liability insurance policy.
Foothills Distributing claims to be the nation's leading plastic fang makers. Its trademark Dracula Fangs, which come in small coffin-shaped boxes, retail for $14 and up.
A second patent infringement lawsuit the company filed against a California rival last year is still pending in Babcock's court. "Basically, it's the same stuff with some subtle differences," Smith said.
March 7, 2002