chuck roaste v. reverse gear - complaint

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Plaintiff’s Complaint - 1

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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO

EASTERN DIVISION Chuck Roaste LLC, ) 817 Torrence Blvd., Ste. 154 ) Case No. Redondo Beach, California 90277, ) ) Judge Plaintiff, ) ) Magistrate v. ) ) Reverse Gear, LLC, ) COMPLAINT FOR DESIGN 10250 Constellation Blvd., 19th Floor ) PATENT INFRINGEMENT Los Angeles, California 90067, ) ) (Jury Demand Endorsed Hereon) and, ) ) Call Me Bleu, LLC, ) 200 North Swall Drive, #310 ) Beverly Hills, California 90211, ) ) Defendants. ) NOW COMES the Plaintiff, Chuck Roaste, LLC, and for its Complaint against the

Defendants alleges as follows:

THE PARTIES

1. The Plaintiff, Chuck Roaste, LLC, is a corporation organized under the laws of California,

and has its principal place of business in California.

2. The Defendant, Reverse Gear, LLC, is a corporation organized under the laws of Delaware,

and has its principal place of business in California.

3. The Defendant, Call Me Bleu, LLC, is a corporation organized under the laws of an unknown

state, and has its principal place of business in California.

Case: 1:14-cv-01109 Doc #: 1 Filed: 05/22/14 1 of 6. PageID #: 1

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JURISDICTION AND VENUE

4. This is an action for patent infringement. The patent claims arise under the patent laws of the

United States, specifically 35 U.S.C. § 281. This Court has subject matter jurisdiction in this

matter pursuant to 28 U.S.C. §§ 1331, 1338, and 35 U.S.C. § 281 because this action arises

under the patent laws of the United States.

5. This Court has personal jurisdiction over the Defendants by virtue of their sale of products,

transaction of business, and solicitation of business within the State of Ohio, within this

judicial district and elsewhere.

6. Ohio’s Long-Arm Statute, RC § 2307.382(A)(1), provides that “A court may exercise

personal jurisdiction over a person who acts directly or by an agent, as to a cause of action

arising from the person’s: (1) Transacting any business in this state.” In this case, the

Defendants transact business in this state. The Defendants supply infringing jeans that are

widely sold throughout the state.

7. Ohio’s Long-Arm Statute, RC § 2307.382(A)(2), provides that “A court may exercise

personal jurisdiction over a person who acts directly or by an agent, as to a cause of action

arising from the person’s: (2) Contracting to supply services or goods in this state.” In this

case, the Defendants contract to supply goods in this state. The Defendants supply infringing

jeans that are widely sold throughout the state.

8. Venue is proper in the Northern District of Ohio pursuant to 28 U.S.C. § 1391(b)(2) and/or

28 U.S.C. § 1400(b) because a substantial part of the events giving rise to the claims

occurred in this judicial district, the Defendants are subject to personal jurisdiction in this

district, and infringement occurred within this judicial district.


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FACTUAL ALLEGATIONS

9. On June 25, 2002, United States Design Patent No. D459,055, entitled “Reversible Denim

Pants” (hereinafter referred to as the ‘055 patent) duly and legally issued to Toshio Hosogai,

as inventor, for the aforementioned reversible jeans. (A true and accurate copy of the ‘055

patent as issued is attached hereto as “Exhibit 1.”)

10. All rights to the ‘055 patent, including but not limited to, the right to recover for

infringement thereunder, has been assigned to the Plaintiff, Chuck Roaste LLC.

11. The Plaintiff has manufactured and marketed products in commerce that read on the ‘055

patent, but currently, is not manufacturing or marketing products that read on the ‘055 patent.

12. Upon information and belief, the Defendants, at times relevant, had actual knowledge of the

existence of the ‘045 patent.

13. The Defendants have been and are currently making, using, offering for sale, selling, and/or

importing products that infringe the ‘055 patent. (See the Defendants’ product attached

hereto as “Exhibit 2.”)

14. Infringement has occurred in this judicial district and elsewhere. (See a sale in this judicial

district attached as “Exhibit 3.”)

15. The aforementioned activities of the Defendants have injured and threaten future injury to the

Plaintiff.

16. The Defendants are not authorized in any way to sell their infringing products or to use the

patent owned by the Plaintiff.

17. The Plaintiff is entitled to an award of damages against the Defendants for patent

infringement, in no event less than a reasonable royalty.


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CLAIM NO. 1 (Patent Infringement 35 U.S.C. § 271)

18. The Plaintiff hereby incorporates by reference each statement, whether written above or

below, as if each is fully re-written herein.

19. The Defendants have been and are currently making, using, offering for sale, selling, and/or

importing products that infringe the ‘055 patent.

20. The Defendants have infringed the ‘055 patent because the Defendants’ accused article,

namely, the “Bleulab: reversible 8-pocket boot in aqua fortis” jeans, embody the patented

design of the ‘055 patent or any colorable imitation thereof.

21. The Defendants’ product is substantially similar to the ‘055 design patent under the “ordinary

observer” test enunciated in Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir.

2008); Citing Gorham Co. v. White, 81 U.S. 511 (1871).

22. The Defendants’ conduct is an infringement of the ‘055 patent, and in violation of 35 U.S.C.

§ 271 within this judicial district and elsewhere.

23. The Defendants will continue to make, use, offer for sale, sell, and import their infringing

products unless enjoined by this Court.

24. The Defendants have been, and are, actively inducing infringement of the ‘055 patent.

25. The Defendants’ infringement is, and at all times has been, deliberate, willful, with full

knowledge of the Plaintiff’s patent rights, and wanton, and as a result, the Plaintiff is entitled

to treble damages pursuant to 35 U.S.C. § 284.

26. This is an exceptional case within the meaning of 35 U.S.C. § 285, and the award of

appropriate attorneys’ fees is justified.


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PRAYER FOR RELIEF / REQUEST FOR REMEDIES

WHEREFORE, the Plaintiff prays that this Court to enter an Order in favor of the Plaintiff

and against the Defendants as follows:

A) A preliminary and permanent injunction enjoining the Defendants from making, using,

selling, offering for sale, and importing any product that infringes upon the ‘055 patent;

B) An accounting for damages resulting from Defendants’ patent infringement and contributory

infringement and the trebling of such damages because of the knowing, willful, and wanton

nature of the Defendants’ conduct;

C) An assessment of interest on the damages so computed;

D) An award of attorney’s fees and costs in this action under 35 U.S.C. § 285;

E) Judgment against Defendants for an accounting and monetary award in an amount to be

determined at trial, including reasonable royalties;

F) Requiring Defendants to provide full disclosure of any and all information relating to its

supplier or suppliers of infringing product;

G) Requiring Defendants to provide the location of any and all manufacturing equipment,

including but not limited to, molds used to manufacture infringing product;

H) Requiring Defendants to destroy any and all manufacturing equipment used to manufacture

infringing product or to deliver said equipment to the Plaintiff;

I) Ordering a product recall of infringing product for destruction;

J) Requiring Defendants to file with this Court and serve on the Plaintiff within thirty (30) days

of this Court’s order a report setting forth the manner in which they complied with the order;


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K) Requiring Defendants to provide to Plaintiff all sales records, including but not limited to,

email, mail, and advertising lists;

L) Damages according to each cause of action herein; and

M) Prejudgment interest.

JURY DEMAND

WHEREFORE, the Plaintiff requests a trial by jury on all issues so triable.

Most Respectfully Submitted,

___/s/ David A. Welling_____________ C. VINCENT CHOKEN (0070530)

DAVID A. WELLING (0075934) CHOKEN WELLING LLP 3020 West Market Street Akron, Ohio 44333 Tel. (330) 865 – 4949 Fax (330) 865 – 3777 [email protected] [email protected]

JOHN D. GUGLIOTTA (0062809) MCCARTHY LEBIT, CRYSTAL & LIFFMAN 101 West Prospect Ave., Ste. 1800 Cleveland, Ohio 44115 Tel. (216) 696 – 1422 Fax (216) 696 – 1210 [email protected]

Counsel for the Plaintiff


Case: 1:14-cv-01109 Doc #: 1-1 Filed: 05/22/14 1 of 5. PageID #: 7111111 11111111111111111111111111111111111111111111111111111111 USOOD459055S

(12) United States Design Patent (lo) Patent No.: US D459,055 S ** *Jun.25,2002 Hosogai (45) Date of Patent:

(54) REVERSIBLE DENIM PANTS

(76) Inventor: Toshio Hosogai, One Irving Pl., #V29B, New York, NY (US) 10003

( * ) Notice: This patent is subject to a terminal disclaimer.

(**) Term: 14 Years

(21) Appl. No.: 29/111,184

(22) Filed: Sep. 22, 1999

(51) LOC (7) Cl. .................................................... 02-02 (52) U.S. Cl. ........................................................ D2/742 (58) Field of Search ........................ D2/742, 745; 2/79,

(56)

2/80, 83, 400--408, 227, 234, 235, DIG. 2, 411

References Cited

U.S. PATENT DOCUMENTS

D161,057 S * 11/1950 Schwab ....................... D2/742 3,959,826 A * 6/1976 Hakanson ...................... 2/227 5,634,215 A * 6/1997 DeBaene ....................... 2/227

5,881,392 A * 3/1999 Koerner eta!. ................ 2/227 5,956,775 A * 9/1999 Ezra .............................. 2/227

* cited by examiner

Primary Examiner-Louis S. Zarfas Assistant Examiner-Robert A Delehanty (74) Attorney, Agent, or Firm-John D. Gugliotta

(57) CLAIM

The ornamental design for a reversible denim pants, as shown and described.

DESCRIPTION

FIG. 1 is a front elevational view of a reversible denim pants showing my new design; FIG. 2 is a rear elevational view thereof; FIG. 3 is a front elevational view thereof, shown in a reversed condition; and, FIG. 4 is a rear elevantional view thereof, shown in a reversed condition. The surfaces or portions of the article not shown in the drawing or described in the specification form no part of the claimed design.

1 Claim, 4 Drawing Sheets

Case: 1:14-cv-01109 Doc #: 1-1 Filed: 05/22/14 2 of 5. PageID #: 8

U.S. Patent Jun.25,2002 Sheet 1 of 4 US D459,055 S

FIG. 1



FrG. 2



FIG. 3



{1::.

,:-:!> ;{,;ll

FfG. 4


Claims Chart Comparison between U.S. Des. 459,055 and

Design Sold as "The Reversible Collection" by BLUELAB®

Des. 459,055

FIG. 1 is a front elevational view of a reversible denim pants showing my new design;

Accused Infringing Product




Des. 459,055

FIG. 2 is a rear elevational view thereof; Accused Infringing Product




Des. 459,055

FIG. 3 is a front elevational view thereof: shown in a reversed condition;





Des. 459,055

FIG. 4 is a rear elevational view thereo:t: shown in a reversed condition.



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Case: 1:14-cv-01109 Doc #: 1-4 Filed: 05/22/14 1 of 3. PageID #: 18JS 44 (Rev. 12/12) CIVIL COVER SHEET The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pl~ or other papers as required by law, except as provided by local rules of court. This fonn, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the pmpose o(initiatiog the civil docket sheet. (SEE INSTRUCTIONS ON NEXI' PAGE OF TillS FORM.)

Rg,~~~w~. et al.,

(b) County of Residence of First Listed Plaintiff C,a,.,_._,lif"'o""'m"'i,.a _____ _ County of Residence of First Listed Defendant (EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE TIIE LOCATION OF TIIE TRACT OF LAND INVOLVED.

Attorneys (If Knowt1)

II. BASIS OF JURISDICTION (PklceCUI "X"inOMBw;Or!ly) m. CITIZENSIDP OF PRINCIPAL pARTIES (Pklce CUI "X" in OM Bw;for PlaiPitijf

0 1 u.s. Government ~3 (For Diversity Cases OPI/y) CUid OM Bw;for Deferulant)

Federal Question PTF DEF PTF DEF Plaintiff (U.S. ~~Not a Pony) Citizen of This State (] 1 (] 1 Incotpomted or Principal Pl&:e (] 4 (] 4

ofBusiness In This State

(]2 u.s. Government (]4 Diversity Citizen of Another State (] 2 (] 2 Incmporated artd Principal Place (] 5 (] 5 Defendant (Indicau Citizerrship of Parties in Itm~ III) of Business In Another State

Ll 3 Ll 3 Foreign Nation (] 6 (] 6

IV. NATURE OF SUIT (Pklce CUI "X" in Or!e Box OPI/y) CT TORTS R, OTHER

(] 110 Insunnce PERSONAL lNJURY PERSONAL INJURY Ll 625 Drug Related Seizure Ll 422 Appeal28 USC 158 Ll 375 Fllhe Claims Act (] 120 Marine (] 310 Airplane (] 365 Personal Injury - of Property 21 usc 881 (] 423 Withdrawal (] 400 State RcspportiolllllCIIt (] 130 Miller Act (] 315 Airplane Product Product Liability (] 6900ther 28USC 157 (] 410 Antitrust (] 140 Negotiable Instrument Lillbility (] 367 Health Carel Ll 430 Banks and BIDking (] 150 R.ecovecy ofOvmpaymeut (] 320 Assault, Libel & l'harmaceutical 'RIGHTS (] 450 Commerce

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StudcntLollllll (] 340 Marine Injwy Product (] 480 Consumer Credit (Exi:ludcs Vetenms) (] 345 Marine Product Liability LABOR SO( IAL (] 490 Cable/Sat 1V

(] 153 R.ecovecy ofOverpaymeut Liability PERSONAL PROPERTY (] 710 Fm Labor Standanla (] 861 HIA (1395ft) (] 850 Securities/Commoditielll ofVcteran's Benefits (] 350 Motor Vehicle (] 370 Other Fraud Act Ll 862 Black Lung (923) Exchange

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Cite the U,S, Civil Statute under which you are filing (Do 1tol dt. ~ *llltU 111tla• tliHnity): 35 USC 271 et al.

VI. CAUSE OF ACTION ~B;.;;ri;..;ef;;.de=scn..;;·pti;.;....;..on..;;;.;.of.;;;c;.;.ause-:---------------------------------Design Patent Infringement

VII. REQUESTED IN COMPLAINT:

VIII. RELATED CASE(S) IF ANY

DATE

05/2212014 FOR OFFICE USE ONLY

LJ CHECK IF TinS IS A CLASS ACTION UNDER RULE 23, F.R.Cv.P.

(See in.rtructiml&): JUDGE

DEMANDS

SIGNATIJRE OF ATIORNEY OF RECORD

Is/ David A. Welling

RECEIPT# AMOUNT APPLYING IFP

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JURY DEMAND: )d Yes I'J No

DOCKET NUMBER

JUDGE MAG. JUDGE


I.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO

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Case: 1:14-cv-01109 Doc #: 1-4 Filed: 05/22/14 3 of 3. PageID #: 20JS 44 ~ (Rov. 12/12)

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m. Residence (citizenship) of Principal Parties. This sectioo of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party.

IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive.

V. Origin. Place an "X" in one of the six boxes. Original Proceedings. (I) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Sectioo 1441. When the petitioo for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for fwther action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Aoother District (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigatioo transfers. Multidistrict Litigatioo. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above.

VL Cause of Action. Report the civil statute directly related to the cause of action aod give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 BriefDescriptioo: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.RCv.P. Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

vm. Related Cases. 1bis section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.


AO 440 (Rev. 12/09) Summons in a Civil Action

UNITED STATES DISTRICT COURT for the

Northern District of Ohio 13 Chuck Roaste LLC

Plaintiff

v.

) ) ) ) ) ) )

Civil Action No. Reverse Gear, LLC, et al.,

Defendant

SUMMONS IN A CIVIL ACTION

T . , Reverse Gear, LLC 0 · (Defendant 3 name and address) 10250 Constellation Blvd., 19th Floor

Los Angeles, California 90067

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it)- or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3)- you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: David A. Wel.ling, Esq.

Choken Welling LLP 3020 W. Market St. Akron, Ohio 44333

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

CLERK OF COURT

Date: Signature of Cleric or Deputy Cleric


AO 440 (Rev. 12/09) SWDIDDns in a Civil Action (Page 2)

Civil Action No.

PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date)

D I personally served the summons on the individual at (place) --------------------------on (date) ; or

--------------------------------------- -------------

D I left the summons at the individual's residence or usual place of abode with (name) ----------------

' a person of suitable age and discretion who resides there, ---------------------------on (date) ' and mailed a copy to the individual's last known address; or

-------------

D I served the summons on (name of individual) , who is ---------------------------------

designated by law to accept service of process on behalf of (name of organization)

on (date) ; or --------------------------------------- -------------

D I retorned the summons unexecuted because ; or ----------------------------------

D Other (specify):

My fees are$ for travel and $ for services, for a total of$ 0.00 --------- ---------

I declare under penalty of perjury that this information is true.

Date: Server's signature

Printed name and title

Server's address

Additional information regarding attempted service, etc:


AO 440 (Rev. 12/09) Summons in a Civil Action

UNITED STATES DISTRICT COURT for the

Northern District of Ohio 13 Chuck Roaste LLC

Plaintiff

v. Reverse Gear, LLC, et al.,

Defendant

) ) ) ) ) ) )

Civil Action No.

SUMMONS IN A CIVIL ACTION

T . , Call Me Bleu, LLC o. (Defendant s name and address) 200 North Swall Drive, #31 0

Beverly Hills, California 90211

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it)- or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3)- you must serve on the plaintiff an answer to the attached complaint or a motion under Ru1e 12 of the Federal Ru1es of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: David A. Wel.ling, Esq.

Choken Welling LLP 3020 W. Market St. Akron, Ohio 44333

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

CLERK OF COURT

Date: Signature of Cleric or Deputy Cleric


AO 440 (Rev. 12/09) SWDIDDns in a Civil Action (Page 2)

Civil Action No.

PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date)

D I personally served the summons on the individual at (place) --------------------------on (date) ; or

--------------------------------------- -------------

D I left the summons at the individual's residence or usual place of abode with (name) ----------------

' a person of suitable age and discretion who resides there, ---------------------------on (date) ' and mailed a copy to the individual's last known address; or

-------------

D I served the summons on (name of individual) , who is ---------------------------------

designated by law to accept service of process on behalf of (name of organization)

on (date) ; or --------------------------------------- -------------

D I retorned the summons unexecuted because ; or ----------------------------------

D Other (specify):

My fees are$ for travel and $ for services, for a total of$ 0.00 --------- ---------

I declare under penalty of perjury that this information is true.

Date: Server's signature

Printed name and title

Server's address

Additional information regarding attempted service, etc:

chuck roaste v. reverse gear - complaint

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