higear design v. amazon - complaint
DESCRIPTION
HiGear Design v. Amazon - ComplaintTRANSCRIPT
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Andrew D. Skale (SBN 211096)[email protected] L. Wagner (SBN 243594)[email protected] LEVIN COHN FERRIS GLOVSKY AND POPEO PC3580 Carmel Mountain Road, Suite 300San Diego, CA 92130Telephone: (858) 314-1500Facsimile: (858) 314-1501
Attorneys for PlaintiffHIGEAR DESIGN, INC.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
HIGEAR DESIGN, INC.,
Plaintiff,
v.
AMAZON.COM, INC.,
Defendant.
Case No.
PLAINTIFF HIGEAR DESIGN,INC’S COMPLAINT FOR DESIGNPATENT AND UTILITY PATENTINFRINGEMENT, ANDTRADEMARK INFRINGEMENT
JURY DEMANDED
Plaintiff HIGEAR DESIGN, INC. for its Complaint against Defendant
AMAZON.COM, alleges and states as follows:
THE PARTIES
1. Plaintiff HiGear Design, Inc. (“HiGear”) is a corporation organized and
existing under the laws of the State of California with its principal place of business
in Mill Valley, California and a mailing address of P.O. Box 1113, Mill Valley, CA
94942.
2. Defendant AMAZON.COM, INC. (“Amazon”) is a corporation
organized and existing, on information and belief, under the laws of the State of
Delaware, with its principal place of business at, on information and belief, 410 Terry
Avenue, Seattle, WA 98109.
'16CV1110 JLBLAB
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JURISDICTION AND VENUE
3. This is a civil action for patent infringement arising under the Patent
Laws of the United States, 35 U.S.C. §§ 1 et seq. This is also a trademark action
arising under 15 U.S.C. § 1114 et seq. Subject matter jurisdiction is therefore proper
under 28 U.S.C. §§ 1331 and 1338(a), as well as 15 U.S.C. § 1121(a).
4. This Court has personal jurisdiction over Amazon because Amazon has
extensive minimum contacts with the State of California such that the exercise of
jurisdiction does not offend traditional notions of fair play and substantial justice.
Amazon has purposefully availed itself of the benefits of the California forum, and
has continued selling products infringing HiGear’s patents and trademarks despite
clear notice and knowledge that the continued sales would harm the California
company’s intellectual property rights and competing line of products practicing the
inventions. On information and belief:
a. Amazon has fulfillment centers in California employing nearly
5,000 employees, and reports it has over 10,000 employees statewide.
Its sales in California are so extensive that the online sales tax effective
September 15, 2012 was referred to as the “Amazon” tax, and generates
hundreds of millions of dollars in sales tax revenue for California from
Amazon each year for sales fulfilled to California residents; and
b. That tax is itself the result of a compromise between Amazon and
California legislators whereby Amazon agreed to pour $500 million into
its California operations, provide 10,000 full-time jobs in California, and
25,000 more seasonal jobs.
5. This Court further has subject matter jurisdiction over the claims and
causes of action asserted in this complaint pursuant to 28 U.S.C. § 1332(a) because
this dispute is between citizens of complete diversity, including a California company
with its principle place of business in California, and a Delaware company with its
principle place of business in Washington, and the amount in controversy exceeds
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$75,000, exclusive of interest and costs.
6. Venue is proper in this judicial district under 28 U.S.C. sections 1391(b)
and (c) and 1400(b) because a substantial part of the events or omissions giving rise
to the claims occurred in the district; Plaintiff resides in this district; and the
Defendant resides in this district by virtue of being subject to personal jurisdiction in
this judicial district by, among others, its repeated availment and direction of its
activity toward this district, and selling infringing goods into this judicial district.
FACTUAL BACKGROUND
7. Through heavy investment and hard work, HiGear designed a unique
and highly useful type of travel pillow. The design is so aesthetically pleasing and
distinctive that HiGear pursued and obtained a design patent to protect against others
who may wish to sell what an ordinary observer would view as the same product. A
copy of HiGear’s U.S. Design Patent, US D599,150, is attached to this Complaint as
EXHIBIT 1 (“the ’150 Patent”).
8. The advances utilized by the portable support pillow were such a novel
invention that HiGear was also awarded a utility patent for its invention, U.S. Patent
No. US 7,758,125 (“the ’125 Patent”). A copy of the ’125 Patent is attached as
EXHIBIT 2.
9. HiGear has been marketing and selling its unique HiGear travel pillows
since at least as early as March 14, 2008, and has gained significant market
recognition. The brand such products are sold under was awarded two U.S.
trademark registrations, to provide the broadest possible protection against
infringement and counterfeiting. This includes U.S. Reg. No. 3,544,788 for the
TRAVELREST word mark in Class 10 for “air pillows for medical purposes,” a true
and correct copy of which is attached as EXHIBIT 3 and incorporated herein by
reference. This also includes U.S. Reg. No. 4,482,893 for the TRAVELREST word
mark plus design in Class 10 for “air pillows for medical purposes,” a true and correct
copy of which is attached as EXHIBIT 4 and incorporated herein by reference.
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10. TRAVELREST products regularly appear in Amazon’s various lists of
#1 selling products.
11. Unfortunately, in the midst of this success, HiGear discovered that a
number of online sellers had begun selling infringing travel pillows through
Amazon’s online store located at www.Amazon.com. In an effort to enforce its
patent and trademark rights, HiGear has patiently gone through Amazon’s
infringement reporting platforms, including the repugnant procedure of paying
dozens of counterfeiters for one of their infringing products.
12. In the past 2 years alone, Amazon has listed approximately 30 known
infringing products with separate ASINs (Amazon’s unique product number assigned
to each product, which Amazon also uses to group together different purchase options
for consumers interested in that particular product). Those ASINs, along with the
Seller Nickname and Order Date are listed in EXHIBIT 5 hereto (“Accused
Products”). Many of these sellers list their counterfeit products under ASINs
assigned to genuine TRAVELREST travel pillows (for example, iResource’s ASIN
B014KN94G8).
13. Exemplative copies of the notices of infringement provided to Amazon
for the Accused Products are attached as EXHIBIT 6. These counterfeit pillows use
the same stock copyrighted pictures as HiGear, for which the copyright belongs to
HiGear. They also use the same or modified versions of HiGear’s travel pillow
instruction manuals, for which HiGear holds all copyright rights. The marketing and
promotional material included with these counterfeit pillows even employs the
TRAVELREST word and design marks for which HiGear enjoys two federally
registered trademarks. Examples of this blatant counterfeiting are shown in
EXHIBIT 6.
14. A fundamental flaw with Amazon’s design, is that it is not adequate to
protect against repeat infringement by fundamentally the same seller in a timely and
efficient fashion, resulting in Amazon making substantial infringing sales at any
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given time. Amazon has been notified of these repeat offenders.
15. Infringers simply serially create new seller accounts or ASINs and put
the exact same products up for sale again. This includes, for example,
DiamondMindMarketing, Amazon Warehouse Deals, Inc., and Xue Wen Wa. See
EXHIBIT 5.
16. Amazon does not remove these infringing sellers, ban them from selling
travel pillows, or employ other measures to eliminate such serial infringing sales –
instead, it continues to fulfill orders for these infringing products. And Amazon often
will not remove the listing for the infringing product without a required purchase of
the product being made by the IP owner, even when Amazon fulfills the orders for
the product from its own warehouses.
17. The net result is that an infringing travel pillow is almost always
available for purchase on Amazon, with Amazon and the infringing seller generating
revenue based on sales of these counterfeit travel pillow – revenue that rightfully
belongs to HiGear.
18. The result goes beyond just supplanting an authorized sales when a
counterfeit sale is provided. The damage spreads to other consumers through
negative customer reviews from the consumers buying these knockoffs. For
example, on March 31, 2016 a “1 star” review was posted for a TRAVELREST
pillow ASIN on Amazon, stating the following regarding a recent counterfeit
“TRAVELREST” pillow from Xue Wen Ya: “Cheaply made junk arrived damaged
from China. No response from seller XUE to rectify problem. Unfortunately I
suggested the product to many other folks before getting this junk.” This negative
review then discourages others reviewing it from purchasing authentic patented
TRAVELREST pillows. The disappointed customer is also not providing the word
of mouth they would otherwise provide if they had received a satisfactory non-
counterfeit pillow. Even further, many consumers do not pay attention to the reasons
for specific negative reviews, but are instead deterred or discouraged from purchase
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simply by the presence of low star ratings, given the competitive marketplace where
perception is power.
19. The infringers have exploited Amazon’s policy, and Amazon has not
adapted to the changing marketplace so as to avoid vicarious, contributory and
indirect infringement. For example, on information and belief, Amazon employs no
IP address match process for repeat violators. Instead, Amazon makes substantial
sales of infringing goods, while appearing to address infringement.
20. Despite repeated demands to Amazon to take action to stop this
counterfeiting scheme perfected on its online store, nothing has changed.
21. Amazon is acting as a retailer and dealer in the infringing products.
22. Amazon is directly liable for the infringing offers for sale, including
counterfeit sales using ASINs created for genuine TRAVELREST pillows, as well as
their own ASINs. Amazon is liable directly regardless of whether the individual
partners of Amazon are also liable. Amazon has offered no response as to why the
Accused Products are not infringing, and the continued deliberate indifference in
continuing to allow these Accused Products on its online store by the same seller
using what, on information and belief, is the same IP address, makes Amazon’s
infringements willful.
23. Accordingly, to protect HiGear’ valuable patents and trademarks from
online exploitation, HiGear brings this suit.
FIRST CLAIM FOR RELIEF
PATENT INFRINGEMENT OF U.S. PATENT NO. D599,150
24. HiGear realleges all allegations in this Complaint as if stated herein.
25. On September 1, 2009, United States Patent Number D599,150 entitled
“Portable Support Pillow,” was duly and legally issued to HiGear, who has the right
to enforce this patent.
26. Defendant has sold or exposed for sale articles of manufacturer to which
the ’150 Patent applies.
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27. Defendant has infringed and continues to infringe the ’150 Patent by
using, selling, offering for sale, importing, and/or actively inducing others to use
products that infringe one or more of the patented design(s) in the ’150 Patent, and is
thus liable for patent infringement pursuant to 35 U.S.C. §§ 271 and 289 et seq. The
Accused Products so resemble the ’150 Patent, including Claim 1, that in the eye of
an ordinary observer, giving such attention as a purchaser usually gives, the visual
appearance of the two designs are substantially the same.
28. Defendant is also liable for patent infringement because it actively
induced these sellers on its online site to continue selling the Accused Products even
after Amazon unequivocally knew of the ’150 Patent, having received multiple
notices of infringement from HiGear. Amazon acted in a manner that encouraged
these sellers to infringe on the ’150 Patent. Amazon has even purported to open,
inspect and repackage such items. See EXHIBIT 6.
29. Specifically, although Amazon maintains the power under its Conditions
of Use to remove whatever products it wishes to from its online store, and revoke
user rights, has a detailed infringement notice program to accomplish that removal,
and indeed removes products continuously on this basis, it continues to allow
infringing products to be easily redirected and sold on its online store and, on
information and belief, generates substantial profits from those sales.
30. Amazon knew that if it did not remove the Accused Products, and use
the information available to it about the sellers to stop reposting of the infringing
products, the natural and likely consequence was their continued sale on its online
store. Amazon intended for sales of these Accused Products to continue on its online
store. Amazon knew or should have known that those acts would cause the sellers to
continue infringing the ’150 Patent, Amazon having received multiple and detailed
notices of the infringement.
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31. Defendant’s infringement of the ’150 Patent has caused and continues to
cause damage to HiGear in an amount to be determined at trial but exceeding
$75,000.
32. Defendant’s infringement of the ’150 Patent has caused and will
continue to cause immediate and irreparable harm to HiGear for which there is no
adequate remedy at law, unless this Court enjoins and restrains such activities. This
includes the harm from Amazon’s failure to remove negative consumer reviews of
knockoff products purporting to review genuine patented TRAVELREST pillows,
despite demand to do so; Amazon should be ordered to remove such misleading
reviews.
33. Defendant knew of the ’150 Patent prior to the filing of this lawsuit.
34. Defendant’s infringement of the ’150 Patent was willful and deliberate,
was objectively reckless due to the high likelihood that its actions constituted
infringement of a valid patent, and knew or should have known of this objectively-
defined risk because the risk was so obvious. Thus, HiGear is entitled to enhanced
damages pursuant to 35 U.S.C. § 284, and costs incurred prosecuting this action.
35. Plaintiff is further entitled to the total profit on the Accused Products
pursuant to, inter alia, 35 USC § 289.
SECOND CLAIM FOR RELIEF
PATENT INFRINGEMENT OF U.S. PATENT NO. 7,758,125
36. HiGear realleges all allegations in this Complaint as if stated herein.
37. On July 20, 2010, United States Patent Number 7,758,125 entitled
“Portable Support Including a Pillow,” was duly and legally issued to HiGear, who
has the right to enforce this patent.
38. Defendant has infringed and continues to infringe the ’125 Patent by
using, selling, offering for sale, importing, and/or actively inducing others to use
products that infringe one or more of the claims in the ’125 Patent, and is thus liable
for patent infringement pursuant to 35 U.S.C. § 271. The Accused Products infringe
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at least Claims 1 and 12 of the ’125 Patent.
39. Defendant is also liable for patent infringement under 35 U.S.C. § 271
because it actively induced these sellers on its online site to continue selling Accused
Products even after Amazon unequivocally knew of the ’125 Patent, having received
written notice of infringement from HiGear. Amazon acted in a manner that
encouraged these sellers to infringe on the ’125 Patent.
40. Specifically, although Amazon maintains the power under its Conditions
of Use to remove whatever products it wishes to from its online store, has a detailed
infringement notice program to accomplish that removal, and indeed removes
products continuously on this basis, it simply refused to take any action with respect
to preventing these sellers from relisting the Accused Products, continuing to allow
them to be easily redirected and sold on its online store and, on information and
belief, generating substantial profits from those sales.
41. Amazon knew that if it did not remove the Accused Products, the natural
and likely consequence was their continued sale on its online store. Amazon intended
for sales of these Accused Products to continue on its online store. Amazon knew or
should have known that those acts would cause the sellers to continue infringing the
’125 Patent, Amazon having received multiple and detailed notices of the
infringement.
42. Defendant’s infringement of the ’125 Patent has caused and continues to
cause damage to HiGear in an amount to be determined at trial but exceeding
$75,000.
43. Defendant’s infringement of the ’125 Patent has caused and will
continue to cause immediate and irreparable harm to HiGear for which there is no
adequate remedy at law, unless this Court enjoins and restrains such activities. This
includes the harm from Amazon’s failure to remove negative consumer reviews of
knockoff products purporting to review genuine patented TRAVELREST pillows,
despite demand to do so; Amazon should be ordered to remove such misleading
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reviews.
44. Defendant knew of the ’125 Patent prior to the filing of this lawsuit.
45. Defendant’s infringement of the ’125 Patent was willful and deliberate,
was objectively reckless due to the high likelihood that its actions constituted
infringement of a valid patent, and knew or should have known of this objectively-
defined risk because the risk was so obvious. Thus, HiGear is entitled to enhanced
damages pursuant to 35 U.S.C. § 284, and costs incurred prosecuting this action.
THIRD CLAIM FOR RELIEF
TRADEMARK INFRINGEMENT
LANHAM ACT (15 U.S.C. § 1114, 1125)
46. HiGear realleges all allegations in this Complaint as if stated herein.
47. HiGear is the owner of two federal trademark registrations for its HiGear
TRAVELREST trademark, U.S. Registration Nos. 3,544,788 and 4,482,893.
48. Amazon listed counterfeit products under the ASINs for TRAVELREST
pillows, and sold and offered for sale other TRAVELREST counterfeit travel pillows,
and/or competing travel pillows that contain TRAVELREST branded promotional
and marketing materials in the product packaging. Amazon has not taken substantial
action to prevent recurring counterfeit goods from being sold on its website.
49. Amazon failed to remove all such products from its shopping site despite
the authority to do so, and clear notice of trademark infringement, and has continued
to allow such sales far beyond any reasonable time needed for action.
50. As a result, Defendants have engaged in the use in commerce of
HiGear’s registered trademarks and the HiGear brand in connection with the sale,
offering for sale, distribution, or advertising of goods and/or services. This use is
likely to cause confusion, mistake or deception as to affiliation, connection or
association of these counterfeit and competing travel pillows with the TRAVELREST
mark and HiGear, and also to cause confusion, mistake or deception as to the origin,
sponsorship, or approval of the unauthorized goods. The goods are competing travel
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pillows, sold on the same platform, to the same group of consumers, often using the
same ASIN, and the mark used is identical (often including the registered design
mark itself, in addition to the word mark TRAVELREST)
51. HiGear is informed and believes, and on that basis alleges that this
infringement was done willfully, intentionally, maliciously, and deliberately, and in
bad faith infringed HiGear’s marks.
52. As a direct and proximate result, HiGear has suffered compensatory and
consequential damages in an amount to be proven at trial.
53. Amazon is selling counterfeited knockoffs of TRAVELREST pillows.
This case qualifies for enhanced damages, attorneys’ fees and trebling of actual
damages and profits pursuant to 15 U.S.C. § 1117.
54. HiGear’s remedies at law are not adequate to compensate for injuries
inflicted by Defendant, accordingly, HiGear is entitled to temporary, preliminary and
permanent injunctive relief. This includes the harm from Amazon’s failure to remove
negative consumer reviews of knockoff products purporting to review genuine
patented TRAVELREST pillows, despite demand to do so; Amazon should be
ordered to remove such misleading reviews.
55. Further, Amazon has been unjustly enriched by adoptively willful or
willfully blind attempt to trade off the HiGear brand. As a result of this willful
infringement, HiGear is entitled to Amazon’s profits on the sales and other revenues
derived from the HiGear branded products.
FOURTH CLAIM FOR RELIEF
UNFAIR COMPETITION
LANHAM ACT (15 U.S.C. § 1125), COMMON LAW,
CAL. BUS. & PROF. CODE § 17200 ET SEQ.
56. HiGear realleges all allegations in this Complaint as if stated herein.
57. Defendant has engaged in unfair competition by the acts alleged herein.
58. Defendant’s acts and omissions alleged above constitute unfair business
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practices because the harm of these business practices outweighs the utility, if any, of
these business practices, and are unscrupulous and injurious to consumers.
59. Defendant’s acts and omissions alleged above constitute unlawful
business practices because Defendants’ conduct is forbidden by multiple laws,
including but not limited to 15 U.S.C. § 1125(a), as well as the common laws, laws of
the State of California and laws of the United States.
60. Defendant’s acts and omissions alleged above constitute fraudulent
business practices because consumers are likely to be deceived.
61. Defendants’ wrongful acts are compounded by its improper failure to
remove negative consumer reviews of knockoff pillows posted under the ASINs of
patented TRAVELREST pillows.
62. As a direct and proximate cause, HiGear has suffered compensatory and
consequential damages in an amount to be proven at trial, and is entitled to disgorge
Defendant’s profits. This damage includes loss of goodwill and dilution of its
TRAVELREST brand.
63. Further, as such, HiGear’s remedies at law are not adequate to
compensate for injuries inflicted by Defendants. Accordingly, HiGear is entitled to
preliminary and permanent injunctive relief. This includes the harm from Amazon’s
failure to remove negative consumer reviews of knockoff products purporting to
review genuine patented TRAVELREST pillows, despite demand to do so; Amazon
should be ordered to remove such reviews
64. Amazon is selling counterfeited knockoffs of TRAVELREST pillows.
65. HiGear is informed and believes, and on that basis alleges that
Amazon’s actions were adoptively willful, willfully blind, intentional, malicious,
deliberate and in bad faith, such that punitive damages are justified and reasonable, at
an amount to be proved at trial, and so as to also qualify for enhanced damages and
attorneys’ fees pursuant to 15 U.S.C. § 1117.
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PRAYER
WHEREFORE, Plaintiff demands the following relief:
1. A judgment in favor of Plaintiff HiGear and against Amazon on all
counts;
2. A preliminary and permanent injunction from design patent, patent and
trademark infringement, including removal of infringing sales and negative reviews
that, due to the infringement, were incorrectly posted referencing TRAVELREST
pillows.
3. Damages in an amount to be determined at trial, with such damages
enhanced and/or trebled for willful infringement;
4. For infringement of HiGear’ design patent and trademarks, Defendants’
total profits under inter alia 35 U.S.C. § 289 and 15 U.S.C. § 1117(a);
5. Exemplary and punitive damages;
6. Pre-judgment interest at the legally allowable rate on all amounts owed;
7. Costs, expenses and fees;
8. An order finding that Defendant’s infringement of the patents-in-suit and
trademarks has been willful and trebling the damages awarded to Plaintiff, as
provided by 35 U.S.C. § 284 and 15 U.S.C. § 1117(b);
9. A declaration that this is an exceptional case and award Plaintiff its
attorneys’ fees incurred in prosecuting this action, as provided by inter alia 35 U.S.C.
§ 285 and 15 U.S.C. § 1117(a)/(b);
10. Statutory damages as allowed by law against all Defendants;
11. Pre-judgment interest at the legally allowable rate on all amounts owed
against all Defendants;
12. Such other and further relief as this Court may deem just and proper.
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Dated: May 9, 2016 MINTZ LEVIN COHN FERRIS GLOVSKY &POPEO
By: s/Andrew D. SkaleAndrew D. Skale, Esq.Ben L. Wagner, Esq.
Attorneys for PlaintiffHIGEAR DESIGN, INC.
DEMAND FOR JURY
HiGear demands trial by jury on all issues triable as a matter of right at law.
Dated: May 9, 2016 MINTZ LEVIN COHN FERRIS GLOVSKY &POPEO
By: s/Andrew D. SkaleAndrew D. Skale, Esq.Ben L. Wagner, Esq.
Attorneys for PlaintiffHIGEAR DESIGN, INC.
47391531v.2
Case 3:16-cv-01110-LAB-JLB Document 1 Filed 05/09/16 Page 14 of 14
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JS 44 (Rev. 11/15) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except asprovided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for thepurpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFSHIGEAR DESIGN, INC.
DEFENDANTSAMAZON.COM, INC.
(b) County of Residence of First Listed Plaintiff San Clemente, CA County of Residence of First Listed Defendant Seattle, WA(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: INLAND CONDEMNATION CASES, USE THE LOCATION OFTHE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number)Andrew D. Skale, Mintz Levin Cohn Ferris Glovsky and Popeo3580 Carmel Mountain Rd. #300, San Diego, CA 92130, 858-314-1500
Attorneys (If Known)
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(For Diversity Cases Only)
(Place an “X” in One Box for Plaintiffand One Box for Defendant)
1 U.S. GovernmentPlaintiff
2 U.S. GovernmentDefendant
3 Federal Question(U.S. Government Not a Party)
4 Diversity(Indicate Citizenship of Parties in Item III)
Citizen of This State
Citizen of Another State
Citizen or Subject of aForeign Country
PTF DEF1 1
2 2
3 3
Incorporated or Principal Placeof Business In This State
Incorporated and Principal Placeof Business In Another State
Foreign Nation
PTF DEF4 4
5 5
6 6
IV. NATURE OF SUIT (Place an “X” in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
110 Insurance
120 Marine
130 Miller Act140 Negotiable Instrument
150 Recovery of Overpayment& Enforcement of Judgment
151 Medicare Act
152 Recovery of DefaultedStudent Loans(Excludes Veterans)
153 Recovery of Overpaymentof Veteran’s Benefits
160 Stockholders’ Suits
190 Other Contract195 Contract Product Liability
196 Franchise
PERSONAL INJURY310 Airplane
315 Airplane ProductLiability
320 Assault, Libel &Slander
330 Federal Employers’Liability
340 Marine
345 Marine ProductLiability
350 Motor Vehicle
355 Motor VehicleProduct Liability
360 Other PersonalInjury
362 Personal Injury -Medical Malpractice
PERSONAL INJURY365 Personal Injury -
Product Liability367 Health Care/
PharmaceuticalPersonal InjuryProduct Liability
368 Asbestos PersonalInjury ProductLiability
PERSONAL PROPERTY370 Other Fraud
371 Truth in Lending
380 Other PersonalProperty Damage
385 Property DamageProduct Liability
625 Drug Related Seizureof Property 21 USC 881
690 Other
422 Appeal 28 USC 158
423 Withdrawal28 USC 157
375 False Claims Act
376 Qui Tam (31 USC3729(a))
400 State Reapportionment410 Antitrust
430 Banks and Banking
450 Commerce
460 Deportation
470 Racketeer Influenced andCorrupt Organizations
480 Consumer Credit490 Cable/Sat TV
850 Securities/Commodities/Exchange
890 Other Statutory Actions
891 Agricultural Acts
893 Environmental Matters
895 Freedom of InformationAct
896 Arbitration899 Administrative Procedure
Act/Review or Appeal ofAgency Decision
950 Constitutionality ofState Statutes
PROPERTY RIGHTS
820 Copyrights
830 Patent
840 TrademarkLABOR SOCIAL SECURITY
710 Fair Labor StandardsAct
720 Labor/ManagementRelations
740 Railway Labor Act
751 Family and MedicalLeave Act
790 Other Labor Litigation
791 Employee RetirementIncome Security Act
861 HIA (1395ff)862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(g))
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS FEDERAL TAX SUITS
210 Land Condemnation220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property
440 Other Civil Rights441 Voting
442 Employment
443 Housing/Accommodations
445 Amer. w/Disabilities-Employment
446 Amer. w/Disabilities-Other
448 Education
Habeas Corpus:463 Alien Detainee510 Motions to Vacate
Sentence530 General
535 Death PenaltyOther:540 Mandamus & Other
550 Civil Rights
555 Prison Condition
560 Civil Detainee -Conditions ofConfinement
870 Taxes (U.S. Plaintiffor Defendant)
871 IRS-Third Party26 USC 7609
IMMIGRATION
462 Naturalization Application
465 Other ImmigrationActions
V. ORIGIN (Place an “X” in One Box Only)1 Original
Proceeding2 Removed from
State Court3 Remanded from
Appellate Court4 Reinstated or
Reopened5 Transferred from
Another District(Specify)
6 MultidistrictLitigation
VI. CAUSE OF ACTION
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):35 U.S.C. §§ 271 and 289 et seq.; 15 U.S.C. §§ 1114 and 1125et seqBrief description of cause:Design Patent and Utility Patent Infringement, and Trademark Infringement
VII. REQUESTED INCOMPLAINT:
CHECK IF THIS IS A CLASS ACTIONUNDER RULE 23, F.R.Cv.P.
DEMAND $ CHECK YES only if demanded in complaint:JURY DEMAND: Yes No
VIII. RELATED CASE(S)IF ANY
(See instructions):JUDGE DOCKET NUMBER
DATE May 9, 2016 SIGNATURE OF ATTORNEY OF RECORD s/Andrew D. SkaleFOR OFFICE USE ONLY
RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE
'16CV1110 JLBLAB
XXXXXXXX (srm)
Case 3:16-cv-01110-LAB-JLB Document 1-1 Filed 05/09/16 Page 1 of 2
American LegalNet, Inc.www.FormsWorkFlow.com
JS 44 Reverse (Rev. 11/15)
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers asrequired by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, isrequired for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk ofCourt for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, useonly the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency andthen the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at thetime of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In landcondemnation cases, the county of residence of the “defendant” is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, notingin this section “(see attachment)”.
II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an “X”in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an “X” in this box.Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendmentto the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takesprecedence, and box 1 or 2 should be marked.Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, thecitizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversitycases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark thissection 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, issufficient 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 thanone nature of suit, select the most definitive.
V. Origin. Place an “X” in one of the six boxes.Original Proceedings. (1) 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., Section 1441.When the petition for removal is granted, check this box.Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filingdate.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 Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers ormultidistrict litigation transfers.Multidistrict Litigation. (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.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictionalstatutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: 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.R.Cv.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.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docketnumbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
Case 3:16-cv-01110-LAB-JLB Document 1-1 Filed 05/09/16 Page 2 of 2
EXHIBIT 1
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EXHIBIT 2
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EXHIBIT 3
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EXHIBIT 4
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EXHIBIT 5
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T estO rderDate S ellerN icknam e A S IN
8/1/2014 Anardark B002P 8YW 54
8/1/2014 CountYer B002P 8YW 54
8/15/2014 O nlyChef B002P 8YW 54
8/15/2014 T eviandT ed B001DYDAEK
8/15/2014 T heFifthAve B001DYDAEK
8/23/2014 Irries B002P 8YW 54
n/a Attm u
10/5/2014 T ravelBuddy B002P 8YW 54
2/24/2015 Diam ondM indM arketing B001DYDAEK
3/2/2015 T Q 2015 B001DYDAEK/B002P 8YW 54
3/2/2015 T Q 2015 B00S GZEZ3O
3/6/2015 Cindy'sInternationalS tore B001DYDAEK
5/15/2015 w oogoing B001DYDAEK
6/11/2015 Batlow B001DYDAEK/B002P 8YW 54
6/11/2015 houm ian B00YA3CCN 6
6/11/2015 nonorabbit B00YHKM 5AM
6/11/2015 R edFire B00YE9FM 60
6/11/2015 w oogoing B00Y7Y2U W Q
6/12/2015 Diam ondM indM arketing B00X 2U I7K0
6/21/2015 FashionFront B002P 8YW 54
7/1/2015 Am azonW arehouseDealsInc. B00X 2U I7K0
7/8/2015 S portsm ax U S A B010L VHG7C
7/17/2015 Am azonW arehouseDealsInc. B00X 2U I7K0
n/a Diam ondM indM arketing B001DYDAEK
n/a Diam ondM indM arketing B00X 2U I7K0
8/19/2015 lixaiojing B001DYDAEK/B002P 8YW 54
9/21/2015 Artshall B001DYDAEK
12/5/2015 iR esources B014KN 94G8
3/16/2016 X U EW EN W A B001DYDAEK/B002P 8YW 54
ChartofInfringingP roducts
Case 3:16-cv-01110-LAB-JLB Document 1-6 Filed 05/09/16 Page 2 of 2
EXHIBIT 6
Case 3:16-cv-01110-LAB-JLB Document 1-7 Filed 05/09/16 Page 1 of 5
February 27, 2015
Order ID: 113-1573928-2593000
Amazon Seller Nickname: “DiamondMindMarketing”
The seller named above is selling counterfeit Travelrest through the Amazon marketplace. They are violatiing ourutility patent, design patent, and brand trademark by o�ering such product for sale. A "test buy" has been made and proof of violation is evidenced in attached images.
left: counterfeit travelrest in box right: genuine travelrest in clamshell package
authentic counterfeit
left: counterfeit with beach ball valveright: genuine travelrest with large travelrest valve
counterfeit directions inblack and white
authentic directions printedin color
Case 3:16-cv-01110-LAB-JLB Document 1-7 Filed 05/09/16 Page 2 of 5
Seller: BatlowOrder #: 115-9079507-3051448
Order Date: 6/11/15 for ASIN: B001DYDAEK
Case 3:16-cv-01110-LAB-JLB Document 1-7 Filed 05/09/16 Page 3 of 5
12/9/15
Order ID: 107-2890319-4369810ASIN: B014KN94G8Amazon Seller Nickname: “iResources”
The seller named above is selling counterfeit Travelrest through the Amazon marketplace. They are violatiing our
and proof of violation is evidenced in attached images. Seller created their own pillow directions yet failed to remove faux “travelrest” directions from factory. Seller is trying to white label a knock o�.
Case 3:16-cv-01110-LAB-JLB Document 1-7 Filed 05/09/16 Page 4 of 5
July 3, 2015
Order ID: 115-3665939-3648200
Amazon Seller Nickname: “Amazon Warehouse Deals; Warehouse Deals, Inc”
The seller named above is selling counterfeit Travelrest through the Amazon marketplace. They are violatiing ourutility patent, design patent, and brand trademark by o�ering such product for sale. A "test buy" has been made and proof of violation is evidenced in attached images.
counterifeit
Case 3:16-cv-01110-LAB-JLB Document 1-7 Filed 05/09/16 Page 5 of 5
� AO 121 (6/90) TO:
Register of Copyrights
Copyright Office
Library of Congress
Washington, D.C. 20559
REPORT ON THE
FILING OR DETERMINATION OF AN
ACTION OR APPEAL
REGARDING A COPYRIGHT
In compliance with the provisions of 17 U.S.C. 508, you are hereby advised that a court action or appeal has been filedon the following copyright(s):
COURT NAME AND LOCATIONG ACTION G APPEAL
DOCKET NO. DATE FILED
PLAINTIFF DEFENDANT
COPYRIGHT
REGISTRATION NO.TITLE OF WORK AUTHOR OR WORK
1
2
3
4
5
In the above-entitled case, the following copyright(s) have been included:DATE INCLUDED INCLUDED BY
G Amendment G Answer G Cross Bill G Other PleadingCOPYRIGHT
REGISTRATION NO.TITLE OF WORK AUTHOR OF WORK
1
2
3 .
In the above-entitled case, a final decision was rendered on the date entered below. A copy of the order or judgmenttogether with the written opinion, if any, of the court is attached.
COPY ATTACHED WRITTEN OPINION ATTACHED DATE RENDERED
G Order G Judgment G Yes G No
CLERK (BY) DEPUTY CLERK DATE
1) Upon initiation of action, 2) Upon filing of document adding copyright(s), 3) Upon termination of action, mail copy to Register of Copyrights mail copy to Register of Copyrights mail copy to Register of Copyrights
DISTRIBUTION:
4) In the event of an appeal, forward copy to Appellate Court 5) Case File Copy
✔ United States District Court, Southern District of California333 West Broadway, Suite 420San Diego, CA 9210116cv1110 LAB(JLB) 5/9/2016
HiGear Design, Inc. Amazon.com, Inc.
N/A stock copyrighted pictures of Travelrest products HiGear Design, Inc.
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