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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS 

SAN ANTONIO DIVISION 

Aubrey P. Nathan, Jr., ) 

 ) 

 ) 

) 

Plaintiff, ) 

) 

v. ) Case No. ______ 

 ) 

Arcus Hunting, LLC, ) 

 ) 

Serve at: ) 

CSC ) 

221 Bolivar Street ) 

Jefferson City, MO 65101 ) 

) 

Defendant. ) 

_________________________________________ ) 

COMPLAINT 

COMES NOW Plaintiff, Aubrey P. Nathan, Jr. (“Nathan” or “Plaintiff”), and for his 

Complaint against Defendant, Arcus Hunting, LLC (“Arcus” or “Defendant”), states and alleges as 

follows: 

PARTIES 

1. Plaintiff Nathan is an individual residing in Centerpoint, Texas. Nathan is the 

founder of Tink’s® branded hunting and hunting-related products, which has been a leader in the 

industry for over forty (40) years. 

2. Defendant Arcus is a Delaware limited liability company with its principal place of 

business located in the State of Georgia, who is not registered to do business in the State of Texas. 

Defendant Arcus manufactures and sells various hunting and hunting-related products, including 

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products sold under the brand Dead Down WindTM and products sold under the brand Tink’s®. Arcus 

sells its products nationwide, including in the State of Texas. Arcus can be issued with service of 

process through the Secretary of State, who can forward process to the Defendant’s principal office 

at 1416 Lake Forest Drive, Unit A, Covington, GA 30014. Plaintiff hereby requests issuance of a 

summons and Complaint. 

JURISDICTION AND VENUE 

3. This Court has subject matter jurisdiction over of this action pursuant to 28 U.S.C. § 

1332 as the amount in controversy exceeds the sum of $75,000, exclusive of interest and costs. 

4. This Court has personal jurisdiction over the Defendant based upon its presence 

within this judicial district and its transaction of business within this district. Specifically, Arcus is 

required by the license agreement at issue in this lawsuit to use commercial reasonableness in 

marketing and selling Tink’s branded products in order to maximize the sales of those product and to 

maximize the resulting royalties to Plaintiff, including within the State of Texas. Defendant is 

therefore subject to the jurisdiction of this Court pursuant to Tex. Civ. Practice & Remedies Code § 

17.042, and to service of process issued from Texas pursuant to Tex. Civ. Practice & Remedies Code 

§17.045(a). 

5. Venue in this Court is proper under 28 U.S.C. § 1391. 

FACTUAL ALLEGATIONS OF THE COMPLAINT 

6. Nathan first began manufacturing and selling Tink’s® branded products for use in the 

hunting industry in the 1970s. Over time, the Tink’s® name became famous in the hunting industry 

for providing both attractants and scent masking products (“Tink’s® Products”). In the 1980s, 

Nathan began licensing trademarks related to the Tink’s® Products to third parties to manufacture 

and sell Tink’s® Products in exchange for payment of a royalty to Nathan. 

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7. Nathan entered into an Amended and Restated License and Royalty Agreement with 

PAT Acquisition, LLC dated February 5, 2004 (the “License Agreement”). A true and accurate 

copy of the License Agreement is attached hereto as Exhibit A. 

8. Upon information and belief, on or about January 7, 2015, Defendant Arcus acquired 

PAT Acquisition, LLC without Nathan’s prior knowledge. 

9. Upon information and belief, Defendant Arcus is owned by Bregal Partners, a New 

York-based private equity company that formed Arcus in mid-November 2014 – less than two 

months before closing on the acquisition of PAT Acquisition, LLC – with the acquisition of Dead 

Down WindTM. 

10. Upon information and belief, PAT Acquisition LLC assigned the License Agreement 

to Arcus, and Arcus became the successor-in-interest to the License Agreement. 

11. As the successor-in-interest to PAT Acquisition LLC, Arcus is a party to the License 

Agreement with Nathan. 

12. Pursuant to the License Agreement, Arcus received a worldwide license to use the 

Trademarks set forth in Reg. Nos. 1,207,374 and 1,456,049 and in Ser. Nos. 76/417,360, 76/417,361 

and 76/417,362 “as such relate to hunting and hunting related products” (the “Marks”). (Ex. A, ¶ 

1(a)). 

13. There is substantial value in the goodwill, reputation, and public recognition 

associated with the Marks. 

14. Pursuant to the License Agreement, Arcus agreed to pay Nathan during his life and to 

Nathan’s beneficiary for eight years following Nathan’s death a royalty “with respect to the goods 

set forth in Reg. Nos. 1,207,374 and 1,456,049 and Ser. Nos. 76/417,360, 76/417,361 and 

76/417,362 as such relate to hunting and hunting related products sold by Licensee during the Term, 

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and other products that are now or in the future sold by Licensee under the Marks pursuant to and as 

authorized by the terms hereof (the “Licensed Products”).” Ex. A, ¶ 10. 

15. The Licensed Products include, inter alia, deer scents used as hunting lures; insect 

repellant for personal use; scents used to cover human odor; odor and scent eliminators; laundry 

soap; hair and body soap; shampoo; gun and bow oil; deodorants; scented dryer sheets; WindTM

direction indicators in powdered form; scent dispensers; rope and cordage; clothing and hats; hunting 

decoys; hunting blinds; scent suppression clothing; tree stands for hunting; clothing; camouflage 

clothing; fabric; animal calls; bird calls; foods; sauces; marinades; printed publications; pre-recorded 

videotapes; compact discs; DVDs and cassettes; and feminine hygiene products. 

16. For decades, Tink’s® branded products have included products in two broad 

categories: a) those products that contain an active scent, such as attractants (hereafter, 

“Attractants”); and b) those products that are designed to eliminate, cover or mask scent (hereafter, 

“Masking Agents”). 

17. Masking Agents include products such as scents used to cover human odor, odor and 

scent eliminators, laundry soap, hair and body soap, shampoo, deodorants, scented dryer sheets, and 

scent suppression clothing. 

18. Arcus manufactures and sells various Masking Agents under the brand Dead Down 

WindTM that compete directly with Tink’s® Masking Agents. 

19. Upon information and belief, the vast majority, if not all, Dead Down WindTM

products are Masking Agents. 

20. As of January 2015, when Arcus acquired PAT Acquisition, LLC, PAT Acquisition, 

LLC was actively manufacturing and selling Tink’s® branded Attractants and Masking Agents, and 

Nathan was receiving a Royalty on the sale of all such products pursuant to the License Agreement. 

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21. As of January 2015, when Arcus acquired PAT Acquisition, LLC, the Tink’s®

branded Attractants and Masking Agents were successful products with significant sales in the 

hunting industry, and Nathan was receiving a steady stream of Royalties on all such Licensed 

Products pursuant to the License Agreement. 

22. Pursuant to the License Agreement, Arcus was required to “utilize commercial 

reasonableness with respect to the manufacture, distribution, marketing and sale of all ‘Licensed 

Products’, as defined in Paragraph 10 [of the License Agreement], in order to maximize the sales 

of the Licensed Products and the amount of the ‘Royalty’, as defined in Paragraph 10 [of the 

License Agreement], payable to [Nathan].” Ex. A, ¶ 5(b) (emphasis added). 

23. Upon acquiring PAT Acquisition, LLC, Arcus began manufacturing, distributing, 

marketing and selling Dead Down WindTM branded Masking Agents in direct competition with 

Tink’s® branded Masking Agents. 

24. Upon information and belief, Arcus does not pay a royalty on the sale of Dead Down 

WindTM branded Masking Agents that compete directly with Tink’s® branded Masking Agents. 

25. Arcus is required to pay a royalty to Nathan on the sales of all Tink’s® Licensed 

Products, including Masking Agents. 

26. Over time, Arcus began marketing Tink’s® branded Attractants and Masking Agents 

and Dead Down WindTM Masking Agents side-by-side at trade shows, focusing its efforts on selling 

Tink’s® branded Attractants and Dead Down WindTM branded Masking Agents. 

27. Over several years, Arcus successfully increased the sales of Dead Down WindTM

branded Masking Agents to the detriment of the sales of Tink’s® branded Masking Agents, in 

contravention of Arcus’s obligation to use “commercial reasonableness in order to maximize the 

sales of the Licensed Products and the amount of the Royalty.” 

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28. Given that Arcus is obligated to maximize the Royalty paid to Nathan, its decision to 

actively market and sell products in direct competition with Tinks® Licensed Products falls woefully 

short of the efforts a reasonable business entity would have made under similar circumstances. 

29. Ultimately, Arcus entirely eliminated the Tink’s® branded Masking Agents and 

offered for sale only its competing in-house Dead Down WindTM branded Masking Agents. 

30. As a result of replacing Tink’s® branded Masking Agents with Dead Down WindTM

branded Masking Agents, Arcus avoided paying royalties to Nathan, and the royalty payments 

Nathan received under the License Agreement precipitously declined. 

31. Arcus knew or should have known that marketing and selling Dead Down WindTM 

Masking Agents in direct competition with Tink’s® Masking Agents would reduce the sale of 

Licensed Products and the Royalty payable to Nathan. 

32. The License Agreement is governed by and is to be construed and enforced in 

accordance with the laws of the state of Georgia. Ex. A, ¶ 14(d). 

33. Pursuant to the License Agreement, the prevailing party in this action shall be entitled 

to recover expenses, including reasonable attorneys’ fees. Ex. A, ¶ 14(j). 

COUNT I 

Breach of Contract 

34. Nathan repeats and realleges each of the allegations set forth in the paragraphs above 

as though fully restated herein. 

35. The License Agreement is a valid and binding contract supported by adequate 

consideration. 

36. Nathan has complied with his obligations under the License Agreement at all relevant 

times. 

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37. Arcus breached the License Agreement by offering for sale and actively marketing 

Dead Down WindTM branded Masking Agents in direct competition with Tink’s® branded Masking 

Agents. Specifically, Arcus violated its contractual obligation to use commercial reasonableness to 

maximize the sales of the Licensed Products and the amount of the Royalty. 

38. By offering Dead Down WindTM branded Masking Agents in direct competition with 

Tink’s® branded Masking Agents, and focusing its efforts on the marketing and sale of Dead Down 

WindTM branded Masking Agents to the detriment of Tink’s® branded Masking Agents, Arcus did not 

“utilize commercial reasonableness with respect to the manufacture, distribution, marketing and sale 

of [Tink’s® branded Masking Agents] in order to maximize the sales of the [Tink’s® branded 

Masking Agents] and the amount of the ‘Royalty’” Nathan received. 

39. By focusing its promotion, marketing and sales efforts on Dead Down WindTM

branded Masking Agents over Tink’s® branded Masking Agents, Arcus was able to and did guide 

buyers to Dead Down WindTM branded Masking Agents and away from Tink’s® branded Masking 

Agents. 

40. After re-designing the Dead Down WindTM packaging, and actively marketing Dead 

Down WindTM branded Masking Agents in direct competition with Tink’s® branded Masking Agents, 

Arcus completely eliminated its marketing and sales of all Tink’s® branded Masking Agents, causing 

a foreseeable and significant reduction in Royalty payments to Nathan. 

41. Arcus diverted sales from Tink’s® branded Masking Agents in order to sell Dead 

Down WindTM branded Masking Agents, to the detriment of Nathan and in breach of the License 

Agreement. 

42. By its actions set forth herein, Arcus breached the License Agreement. 

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43. As a result of Arcus’ breach, Nathan has been and continues to be damaged in an 

amount to be determined at trial but which exceeds $75,000. 

COUNT II 

Breach of the Covenant of Good Faith and Fair Dealing 

44. Nathan repeats and realleges each of the allegations set forth in the paragraphs above 

as though fully restated herein. 

45. The License Agreement is a valid and binding contract supported by adequate 

consideration. 

46. An implied covenant of good faith and fair dealing exists in every contract, including 

the License Agreement. 

47. Nathan has complied with his obligations under the License Agreement at all times. 

48. By offering for sale and actively marketing Dead Down WindTM branded Masking 

Agents in direct competition with Tink’s® branded Masking Agents, Arcus breached the implied 

covenant of good faith and fair dealing. 

49. By promoting, marketing and selling Dead Down WindTM branded Masking Agents in 

direct competition with Tink’s® branded Masking Agents and actively guiding buyers to Dead Down 

WindTM branded Masking Agents and away from Tink’s® branded Masking Agents, Arcus breached 

the covenant of good faith and fair dealing in the License Agreement. 

50. Arcus breached the covenant of good faith and fair dealing by engaging in conduct 

that foreseeably resulted in eliminating Tink’s® branded Masking Agents in favor of Dead Down 

WindTM branded Masking Agents. 

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51. As a result of Arcus’ breach of the covenant of good faith and fair dealing, Nathan 

has been and continues to be damaged in an amount to be determined at trial but which exceeds 

$75,000. 

COUNT III 

Unfair Competition 

52. Nathan repeats and realleges each of the allegations set forth in the paragraphs above 

as though fully restated herein. 

53. Arcus’ actions, as set forth herein, constitute unfair competition in violation of the 

common law of the state of Georgia. 

WHEREFORE, Plaintiff Nathan prays that judgment be entered in its favor and against 

Defendant Arcus on all counts alleged herein in an amount to be proven at trial and which exceeds 

$75,000, for its attorneys’ fees and costs incurred herein, and for such other and further relief as this 

Court deems just and proper. 

JURY DEMAND 

Plaintiff Nathan hereby demands a jury trial on all issues so triable in this action. 

Respectfully Submitted, 

 /s/ James M. Gary 

 James M. Gary TX #24006722 

Tera D. Johnson TX #24097381 

 KUTAK ROCK LLP 

 124 West Capitol Avenue, Suite 2000 

 Little Rock, Arkansas 72201-3740 

 (501) 975-3000 (Telephone) 

 (501) 975-3001 (Facsimile) 

 James.Gary@KutakRock.com

ATTORNEYS FOR PLAINTIFF 

AUBREY P. NATHAN, JR. 

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AND 

Juliet A. Cox pro hac to be submitted

 KUTAK ROCK LLP 

2300 Main, Suite 800 

Kansas City, Missouri 64108 

(816) 960-0090 (Telephone) 

(816) 960-0041 (Facsimile) 

Juliet.Cox@KutakRock.com

Bryan.Stanley@KutakRock.com

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