{3018114:}

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

SWINGAWAY SPORTS 

PRODUCTS, INC., 

Plaintiff, 

vs. 

ESCALADE, INCORPORATED, 

d/b/a ESCALADE SPORTS, 

 Defendant. 

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Civil Action No. _________________ 

JURY TRIAL DEMANDED 

COMPLAINT 

For its complaint against defendant Escalade, Incorporated, d/b/a Escalade 

Sports, (“Escalade”), plaintiff SwingAway Sports Products, Inc. (“SwingAway”) 

states as follows: 

Summary of Case

1. SwingAway makes and sells a highly-acclaimed, innovative, and 

patented baseball and softball hitting and fielding training systems. SwingAway 

makes and sells several training systems geared toward individual players and 

teams at every level of the games of baseball and softball. Each of these bears the 

SWINGAWAY® trademark, and all of them incorporate SwingAway’s patented 

features, including its ball return dampening feature. These patented features set 

SwingAway’s training systems apart from other hitting aids in the marketplace 

and are the foundation on which SwingAway’s past success and hopes for further 

growth are based. 

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2. SwingAway was formed in 2008 by its current president and CEO, 

John Flading, Mr. Flading’s former college roommate, and his roommate’s brother. 

In March 2009, Mr. Flading left a successful 25-year career as a Director of Private 

Wealth Management at Deutsche Bank to pursue the business of SwingAway on a 

full-time basis, which afforded him an opportunity to combine his business acumen 

with his passion for baseball. 

3. In the three short years since its formation, SwingAway has 

established itself a leader in the market for baseball and softball training aids. Its 

annual sales of its SwingAway product line have increased exponentially year after 

year, and it has projected sales of more than $1 million for 2012. 

4. SwingAway’s remarkable growth and success has not come by 

accident. It is a product of significant hard work. 

5. It has worked to place its products for sale with the nation’s largest 

retail sporting goods chains, and to secure inclusion in industry publications and 

catalogs, including Baseball Express, the recognized “bible” for baseball training 

products. 

6. SwingAway consistently re-invests the revenue earned from sales to 

ensure its continued growth and success. It regularly seeks opportunities to 

improve upon and expand its product offerings. 

7. Recognizing the unique nature of high quality of its products, 

SwingAway has invested heavily in the protection of its valuable intellectual 

property, securing patent and trademark protection in the United States, as well 

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as in other countries with strong baseball markets, such as Japan. SwingAway has 

consistently and properly marked its training products with its patents, and has 

consistently marketed those products as “patented.” 

8. SwingAway’s products and success have not gone unnoticed among 

baseball professionals and in the marketplace. SwingAway products are used for 

hitting and fielding training in every major league baseball park in this country. 

Professional managers, players, and hitting instructors use and endorse the 

products. 

9. Indeed, former professional baseball managers like Bobby Cox and 

former professional players like Gary Sheffield, Dante Bichette, and Rafael 

Palmeiro have purchased SwingAway products for use as training aids for their 

own families. 

10. SwingAway has secured endorsements from current and formers 

major league players and managers, as well as from professional softball players 

and managers. For example, most recently, SwingAway entered into an 

endorsement deal with former #1 draft pick and top major league prospect, Bryce 

Harper, who has used SwingAway products for hitting training since his days as a 

top amateur player. 

11. SwingAway’s competitors have also taken notice. Some of these, 

including Rawlings and Hillerich & Bradsby (d/b/a Louisville Slugger®) had, prior 

to the acts that give rise to this Complaint, discussed with SwingAway the 

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possibility of licensing SwingAway’s intellectual property and/or entering into 

partnerships with SwingAway. 

12. Some of these competitors have tried unsuccessfully to emulate the 

distinctive benefits without copying the patented features. But one competitor – 

Escalade – in an effort to enter the market for baseball and softball training aids 

for the first time, dispensed with any pretense of fair competition, and avoided the 

expenditure of its resources by simply copying the patented SwingAway product. 

13. By this lawsuit, SwingAway seeks to enforce its valuable intellectual 

property and protect its place in the market, and seeks damages and injunctive 

relief for Escalade’s willful patent infringement and unfair competition. 

The Parties

14. SwingAway is a corporation organized and existing under Georgia 

State law. SwingAway has a principal place at 4781 Waterhaven Bend, Marietta, 

Georgia 30062, and regularly conducts business in this judicial district. 

15. On information and belief, Escalade, Inc. is an Indiana corporation 

having a principal place of business at 817 Maxwell Avenue, Evansville, Indiana 

47711. 

16. On information and belief, Escalade is in the business of making and 

selling sports-related equipment and products for a variety of sports under such 

well-known brands of GoalrillaTM, Goaliath®, and Silverback® for basketball 

backboards and goals; Harvard®, Atomic®, and Accudart® for gaming tables; 

Mosconi® and Mizerak® for pool tables and accessories; STEP® and USWeightTM 

for fitness equipment; Bear Archery® and Trophy Ridge® for archery; and STIGA® 

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and Ping-Pong® for table tennis equipment. Over a five-year period ending in 

2010, Escalade’s revenue for sales of its sporting goods products has averaged more 

than $100 million annually. 

17. On information and belief, Escalade regularly and systematically 

conducts business throughout the United States and in this judicial district by 

selling its products in a variety of stores, as well as via Internet websites, including 

but not limited to www.goalrilla.com and www.escaladesports.com. 

Jurisdiction and Venue

18. This Court has jurisdiction over the subject matter of SwingAway’s 

claims under the U.S. Patent Act and the Lanham Act claims pursuant to 28 

U.S.C. §§ 1331 and 1338, because those claims arise under federal law. 

19. This Court has supplemental jurisdiction over SwingAway’s claims 

under Illinois State law pursuant to 28 U.S.C. § 1367(a), because those claims are 

so related to SwingAway’s patent law and Lanham Act claims that they form part 

of the same case or controversy under Article III of the U.S. Constitution. 

20. This Court has specific personal jurisdiction over Escalade because, 

among other things, it has offered for sale, shipped, or sold products in Illinois that 

directly or indirectly infringe the ‘250 patent. 

21. This Court also has general personal jurisdiction over Escalade 

because, among other things, it has regularly solicited business in Illinois; it 

engages in a persistent course of conducting business in Illinois; and it derives 

substantial revenue from goods sold in Illinois. 

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22. Venue is proper under 28 U.S.C. § 1391 because Escalade is subject to 

personal jurisdiction in this district under Illinois law and, therefore, “resides” in 

this judicial district according to federal law. 

Relevant Facts

A. SwingAway’s Intellectual Property 

23. On August 18, 1998, the United States Patent and Trademark Office 

issued U.S. Patent No. 5,795,250 (“the ‘250 patent”), which is entitled “TETHERED 

BALL PRACTICE DEVICE.” A true and correct copy of the ‘250 patent is attached 

as Exhibit A. 

24. By assignment, SwingAway is and has been at all times relevant to 

the claims of this Complaint, the sole owner of all right, title, and interest to the 

‘250 patent, including the right to recover for past infringement. 

25. The ‘250 patent covers all of SwingAway’s baseball and softball 

training aids. 

26. For years, in accordance with 35 U.S.C. § 287, SwingAway has 

marked the packages of its hitting machines with the ‘250 patent. 

27. SwingAway was subsequently awarded a second U.S. Patent on 

March 29, 2011. U.S. Patent No. 7,914,400 (“the ‘400 patent”) is entitled 

“BASEBALL PRACTICE SYSTEMS,” and covers additional features on some of 

SwingAway’s training aid products. A true and correct copy of the ‘400 patent is 

attached to this Complaint as Exhibit B. 

28. SwingAway solely owns all right, title, and interest in the ‘400 patent, 

including the sole right to recover for infringement of any claims of that patent. 

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29. In connection with the marketing and sale of its hitting machines, 

SwingAway also owns the federally-registered SWINGAWAY® trademark, Reg. 

No. 2,264,985. A true copy of the SWINGAWAY® registration is attached as 

Exhibit C. 

B. Escalade’s Wrongful Acts 

30. On or about June 18, 2011, SwingAway’s president and CEO, John 

Flading, attended a trade show and exhibition at the College World Series in 

Omaha, Nebraska. 

31. Almost immediately after arriving there, Mr. Flading was approached 

in SwingAway’s booth by an industry-renowned baseball hitting instructor who 

was scheduled to deliver a seminar at the trade show. He advised Mr. Flading that 

he had seen a SwingAway hitting and fielding aid on display at another exhibitor’s 

booth, and he directed Mr. Flading to Escalade’s booth. 

32. Because SwingAway is the only authorized seller of the patented 

SwingAway system, Mr. Flading immediately went to Escalade’s booth, where he 

observed a training system identical in all material respects – including the ball 

return dampening system covered by the ‘250 patent – to a SwingAway device. 

The product at the Escalade booth was identified as a “Goalrilla Spring Trainer.” 

33. In fact, on closer inspection, Mr. Flading discovered that the “Goalrilla 

Spring Trainer” was a SwingAway device with minor, insubstantial cosmetic 

changes. For example, Escalade had replaced the frame around the return 

backstop net with orange steel, and replaced the target area on that net with a mat 

incorporating the Goalrilla logo. 

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34. But the key components of the “Goalrilla Spring Trainer” were 

actually parts physically taken from a SwingAway training device. These parts 

include all of the components of the patented ball return dampening feature. In 

fact, on inspection of the product exhibited as a “Goalrilla Spring Trainer,” Mr. 

Flading discovered that Escalade had simply rubbed off the SWINGAWAY®

trademark from the exhibited SwingAway trainer. 

35. On or about June 18, 2011, Mr. Flading identified to Escalade 

personnel at the exhibit booth that the “Goalrilla Spring Trainer” as exhibited 

incorporated SwingAway parts and infringed at least SwingAway’s ‘250 patent. 

36. Escalade was fully aware of the ‘250 patent at that time. Escalade 

personnel showed Mr. Flading copies of documents reflecting Escalade’s belief that 

the patent had lapsed as a result of an inadvertent failure on the part of 

SwingAway’s patent counsel to pay a routine maintenance fee, despite 

SwingAway’s prior instruction to pay all such fees. 

SWINGAWAY® 

mark rubbed off 

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37. Escalade asserted that, as a result of this lapse, it was free to make, 

use, offer to sell, and sell in the United States, and to import into the United States 

products that read on the claims of the ‘250 patent. 

38. Escalade acknowledged at that time that its “Goalrilla Spring 

Trainer” was covered by the claims of the ‘250 patent. 

39. Mr. Flading immediately contacted SwingAway’s patent counsel, who 

acknowledged that they had failed to follow SwingAway’s instructions and 

inadvertently failed to pay the required maintenance fee. 

40. On June 18, 2011, SwingAway’s patent counsel filed a petition with 

the U.S. Patent and Trademark Office advising of counsel’s inadvertent error, 

paying the maintenance fee, and requesting immediate reinstatement of the ‘250 

patent. 

41. On June 18, 2011, the U.S. Patent and Trademark Office, pursuant to 

this petition, reinstated SwingAway’s ‘250 patent, and that patent was, and 

remains, in force. 

C. The Effects of Escalade’s Conduct 

42. For years, SwingAway has relied on the quality of its products and 

their unique and patented features to make inroads with retail outlets specializing 

in sales of training aids for baseball and softball. Those products are carried in 

and available for sale at one of the largest retail sporting goods stores in the 

United States, various Internet websites specializing in retail sales of sporting 

goods and baseball equipment, and industry catalogs. 

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43. Among other such Internet retail venues, SwingAway’s training 

products were listed and sold online at the website for Dick’s Sporting Goods, one 

of the nation’s largest retailers of sporting good equipment. 

44. Indeed, within months of SwingAway’s first appearance on Dick’s 

Sporting Goods’ Internet “store,” its hitting and fielding trainers were the largest 

selling products in the baseball and softball hitting aid category. 

45. In support of its highly profitable relationship with Dick’s, 

SwingAway entered into a vendor contract with that retailer in early 2011. 

46. Thereafter, in early 2011, SwingAway entered into discussions with 

Dick’s for placement of its products in Dick’s Sporting Goods brick-and-mortar 

stores. 

47. In furtherance of these discussions, SwingAway made changes to its 

product packaging recommended by Dick’s 

48. SwingAway also agreed to adjust its margins at Dick’s request to 

ensure that sale at Dick’s would yield sufficient profit to the retailer, and thus, to 

enhance the probability of placing its SwingAway trainers in the stores. 

49. To further satisfy Dick’s, SwingAway actively pursued additional “big 

name” major league player endorsements for its products. 

50. As late as June 2011, Dick’s was continuing its discussions with 

SwingAway regarding adding the products to its brick-and-mortar store offerings. 

51. However, suddenly in September 2011, Dick’s notified SwingAway 

that it would not include the SwingAway trainers in the product assortment for its 

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brick-and-mortar stores. Instead, Dick’s indicated that it was pursuing other 

opportunities for that category of products for its stores, but wanted to retain 

SwingAway for sale on the Internet website. 

52. Shortly thereafter, SwingAway saw that the “Goalrilla Spring 

Trainer” had been added to Dick’s Internet website and was available for sale 

there. A true and correct copy of the Dick’s website listing for Escalade’s infringing 

product, as it appeared on November 8, 2011, is attached to this Complaint as 

Exhibit D. 

53. On information and belief, the “Goalrilla Spring Trainer” has been 

added to the product assortment for baseball and softball training aids in Dick’s 

brick-and-mortar stores. 

54. On information and belief, Escalade sells various of its products in 

Dick’s brick-and-mortar stores, including but not limited to its GoalrillaTM and 

Goaliath® basketball backboards and goals. 

55. On information and belief, Escalade leveraged its position as a 

supplier to Dick’s of those products to place its “Goalrilla Spring Trainer” into 

Dick’s stores and to displace SwingAway despite SwingAway’s recognized success 

among customers at Dick’s Internet website. 

Count One

Patent Infringement 

56. SwingAway incorporates by reference all allegations in paragraphs 1 

through 55 of the Complaint as if fully set forth herein. 

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57. Escalade has directly infringed, and continues to directly infringe, one 

or more claims of the ‘250 patent by making, using, importing into the United 

States, offering for sale, or selling baseball practice devices, including the 

“Goalrilla Spring Trainer,” in the United States that are covered by the ‘250 

patent. 

58. SwingAway has not licensed, assigned, or otherwise granted Escalade 

any rights under the ‘250 patent. 

59. To the extent Escalade makes, uses, imports, sells, or offers to sell the 

components of baseball and softball training devices, including the “Goalrilla 

Spring Trainer,” Escalade has actively induced infringement under 35 U.S.C. § 

271(b) because it knew, or should have known, that doing so would induce others to 

actually infringe the ‘250 patent. 

60. Escalade has contributed to infringement under 35 U.S.C. § 271(c) by 

importing, making, offering for sale, and selling specially-made components of 

baseball and softball training devices, including the “Goalrilla Spring Trainer,” 

none of which are staple articles or commodities of commerce suitable for 

substantial non-infringing use, with knowledge that the parts are especially made 

or especially adapted for use in an infringement of the ‘250 patent. 

61. Escalade’s infringement of the ‘250 patent was, and continues to be, 

willful and deliberate; and Escalade almost certainly will continue its infringing 

activities unless restrained by this Court. 

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62. Escalade’s infringement of the ‘250 patent is exceptional under 35 

U.S.C. § 285. 

63. Escalade’s activities were done with an intent to, and in fact did allow 

SwingAway to, derive benefit from use of SwingAway’s ‘250 patent. 

64. Escalade has profited, and will continue to profit, by its infringing 

activities. 

65. SwingAway has been damaged by Escalade’s infringing activities and 

will continue to be irreparably injured unless the infringing activities are enjoined 

by this Court. 

Count Two

Reverse Palming Off under the Lanham Act 

66. SwingAway incorporates by reference all allegations in paragraphs 1 

through 65 of the Complaint as if fully set forth herein. 

67. Escalade removed the SWINGAWAY® mark from the key components 

of SwingAway’s device, made insubstantial cosmetic changes, and then held the 

machine out as its own product at the 2011 College World Series, and on 

information and belief, at other similar trade shows and exhibitions. 

68. On information and belief, Escalade also used this device in an effort 

to secure placement of its training devices, including the “Goalrilla Spring 

Trainer,” at retail stores and on Internet websites selling specialty baseball and 

softball training aids. 

69. Such deceptive practices are calculated to confuse consumers into 

thinking Escalade’s training devices, including the “Goalrilla Spring Trainer,” are 

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the same as SwingAway’s hitting machines or that Escalade makes or sells hitting 

machines that, in reality, are made and sold by SwingAway., and are reasonably 

likely to achieve that desired result. 

70. By its conduct, Escalade has engaged in reverse palming off as 

prohibited by the Lanham Act, 15 U.S.C. § 1125(a)(1)(A). 

71. Escalade executed its deceptive acts with the specific intent of 

harming SwingAway by, among other things, taking its sales. 

72. As a direct and proximate result of Escalade’s deceptive practices, 

SwingAway has suffered, and will continue to suffer, damages in an amount to be 

determined at trial. 

73. As a direct and proximate result of Escalade’s deception, SwingAway 

has suffered, and will continue to suffer, irreparable harm. Such harm will 

continue unless and until it is enjoined by the Court. 

Count Three

Violations of the Illinois Uniform Deceptive Trade Practices Act 

74. SwingAway incorporates by reference all allegations in paragraphs 1 

through 73 of the Complaint as if fully set forth herein. 

75. By removing the SWINGAWAY® mark from SwingAway’s hitting and 

fielding training device and then holding the machine out as its own product at the 

2011 College World Series and, on information and belief, at other similar trade 

shows and exhibitions, Escalade engaged in a deceptive trade practice under the 

Illinois Uniform Deceptive Trade Practices Act, 815 ILCS 510/1-510/7. 

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76. On information and belief, Escalade also used this device in an effort 

to secure placement of its training devices, including the “Goalrilla Spring 

Trainer,” at retail stores and on Internet websites selling specialty baseball and 

softball training aids. 

77. As a direct and proximate result of Escalade’s deception, SwingAway 

has suffered, and will continue to suffer, damages in an amount to be determined 

at trial. 

78. As a direct and proximate result of Escalade’s deception, SwingAway 

has suffered, and will continue to suffer, irreparable harm. Such harm will 

continue unless enjoined by the Court. 

Count IV

Tortious Interference with Prospective Economic Advantage 

79. SwingAway incorporates by reference all allegations in paragraphs 1 

through 78 of the Complaint as if fully set forth herein.

80. SwingAway had previously entered into a vendor contract with Dick’s 

Sporting Goods and was selling its products on Dick’s Internet website with great 

success.

81. Pursuant to that vendor contract, SwingAway and Dick’s were 

engaged in discussion to expand their relationship by having SwingAway’s 

products added to the product assortment sold in Dick’s brick-and-mortar stores in 

the baseball and softball training aid category.

82. SwingAway had a reasonable expectation of expanding its vendor 

relationship with Dick’s, having accepted and acted on all of Dick’s 

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recommendations to allow for SwingAway’s products to be sold in Dick’s brick-andmortar stores.

83. On information and belief, Escalade had knowledge of SwingAway’s 

reasonable expectation by virtue of its monitoring of SwingAway’s business activity 

and by reason of Escalade’s vendor relationship with Dick’s in a variety of other 

product categories.

84. On information and belief, Escalade purposefully interfered with 

SwingAway’s expectancy, and by its unlawful and tortuous conduct as described 

herein, displaced SwingAway in Dick’s brick-and-mortar stores with Escalade’s 

infringing “Goalrilla Spring Trainer” device.

85. As a direct and proximate result of Escalade’s tortuous interference, 

SwingAway has sustained substantial damage in an amount to be proven at trial, 

but in no event less than $100,000, which damages consist of profits that 

SwingAway would have earned by its sales of its products at Dick’s stores and 

profits earned by Escalade for sales of its “Goalrilla Spring Trainer” products 

through those stores.

Prayer for Relief

WHEREFORE, Plaintiff SwingAway Sports Products, Inc. respectfully 

requests that this Court: 

A. Enter judgment in favor of SwingAway and against Escalade on 

all counts of this Complaint; 

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B. Enter judgment in SwingAway’s favor that Escalade has 

directly infringed one or more claims of the ‘250 patent under 35 U.S.C. § 

271(a); 

C. Enter judgment in SwingAway’s favor that Escalade has 

indirectly infringed of one or more claims of the ‘250 patent under 35 U.S.C. 

§ 271(b); 

D. Enter judgment in SwingAway’s favor that Escalade has 

willfully infringed one or more claims of the ‘250 patent under 35 U.S.C. § 

271(c); 

E. Award to SwingAway preliminary and permanent injunctive 

relief enjoining Escalade, its officers, directors, managers, employees, 

affiliates, agents, representatives, parents, subsidiaries, successors, assigns, 

those in privity with it, and all others aiding, abetting, or acting in concert or 

active participation therewith, from (1) making, using, selling, offering to 

sell, or importing into the U.S. any ball practice device covered by the ‘250 

patent, including but not limited to the “Goalrilla Spring Trainer”; (2) 

otherwise directly or indirectly infringing the ‘250 patent; and (3) passing off 

any SwingAway product as an Escalade product; 

F. Award to SwingAway compensatory damages in an amount 

sufficient to compensate it for Escalade’s infringement of the ‘250 patent, 

together with pre- and post-judgment interest and costs, pursuant to 35 

U.S.C. § 284; 

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G. Award to SwingAway exemplary damages pursuant to 35 

U.S.C. § 285 by reason of Escalade’s willful infringement of the ‘250 patent; 

H. Declare this case to be “exceptional” under 35 U.S.C. § 285, and 

award SwingAway its attorneys’ fees, expenses, and costs incurred in 

connection with this action; 

I. Order an accounting by Escalade to SwingAway for all sales, 

revenues, and profits derived from its infringing and deceptive activities and 

that at least three times those profits be disgorged and paid to SwingAway; 

and 

J. Such other and further relief as allowed at law or in equity that 

the Court deems to be appropriate. 

DEMAND FOR JURY TRIAL

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff 

SwingAway Sports Products, Inc. respectfully requests a trial by jury of any and all 

issues for which a jury trial is available under applicable law. 

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Dated: November 8, 2011 s/ Joseph J. Jacobi 

Joseph J. Jacobi (6273967) 

Matthew J. Cavanagh (OH 0079522) 

MCDONALD HOPKINS LLC 

300 N. LaSalle Street, Suite 2100 

Chicago, Illinois 60654 

t 312.280.0111 

f 312.280.8232 

jjacobi@mcdonaldhopkins.com

mcavanagh@mcdonaldhopkins.com

Amy B. Spagnole (pro hac vice pending) 

MCDONALD HOPKINS LLC 

200 South Biscayne Boulevard, Suite 3130 

Miami, Florida 33131 

t 305.704.3990 

f 305.704.3999 

aspagnole@mcdonaldhopkins.com

Counsel for Plaintiff 

SwingAway Sports Products, Inc. 

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