salon spa supply v. touspa et. al

7/31/2019 Salon Spa Supply v. Touspa Et. Al.

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

SALON SPA SUPPLY LLC, a

Georgia Corporation,

Plaintiff,

v.

TOUSPA, LLC, a Georgia

Corporation; MINH-TUANNGOC HOANG, an Individual;

and TRAN PHAM, an Individual,

Defendants.

Case No. _________________

JURY TRIAL DEMANDED

VERIFIED COMPLAINT FOR INJUNCTIVE RELIEF AND

DAMAGES, AND DEMAND FOR JURY TRIAL

COMES NOW Salon Spa Supply LLC, Plaintiff in the above-styled cause,

by and through its undersigned counsel, and hereby brings this Verified Complaint

for Injunctive Relief and Damages against Defendants, TOUSPA, LLC,

Mr. MINH-TUAN NGOC HOANG (also known as TONY HOANG), and his

spouse, Ms. TRAN PHAM. In support of its claims, Plaintiff respectfully shows

this Honorable Court the following:


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NATURE OF THE ACTION

1. This is a civil action at law and in equity for intentional breach ofcontract, willful design patent infringement, and unfair competition, arising under

the Patent Act, the Lanham Act, Georgia law, and common law.

2. Plaintiff, SALON SPA SUPPLY LLC, seeks (a) to enforce itsPartnership Interest Purchase Agreement (the Agreement) with Defendant

TONY HOANG; (b) to recover liquidated damages, as agreed by the parties to the

Agreement, in the amount of One Hundred Forty-Four Thousand Dollars

($ 144,000.00) arising out of TONY HOANGs intentional breach of the

Agreement; (c) to recover compensatory and enhanced damages under the Patent

Act, 35 U.S.C. 271 et seq., for Defendants intentional copying and willful

infringement of Plaintiffs patented base and foot bath for pedicure chairs; (d) to

recover compensatory and treble damages for Defendants unfair competition; and

(e) to recover its litigation expenses and attorneys fees arising out of Defendants

pattern of dishonest, intentional, and bad faith conduct.

THE PARTIES

3. Plaintiff, SALON SPA SUPPLY LLC, is a limited liability companyorganized and existing under the laws of the State of Georgia and having a


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principal office located at 1855 Beaver Ridge Circle, Suite A, Norcross, Georgia

30071-3800, in Gwinnett County, Georgia.

4. Defendant, TOUSPA, LLC, is a limited liability company organizedand existing under the laws of the State of Georgia and having a principal office

located at 2245 Button Gwinnett Drive, Atlanta, Georgia 30340-1516, in Gwinnett

County, Georgia. Service of process may be effectuated by serving its registered

agent, Defendant TRAN PHAM, at her home address (below), at TOUSPAs

address, or at any other place and by any other means proper under Georgia law.

5. Defendant, MINH-TUAN NGOC HOANG (TONY HOANG), is aGeorgia resident who may be served with a summons and a copy of this Complaint

at his last known address, 3714 Marlborough Drive, Tucker, Georgia 30084-8330,

in DeKalb County, Georgia, or at any other place and by any means proper under

Georgia law.

6. Defendant, TRAN PHAM, is a Georgia resident, an organizer of,member of, and registered agent for Defendant TOUSPA, LLC, and the legal

spouse of Defendant TONY HOANG, and she may be served with a summons and

a copy of this Complaint at her last known address, 394 Hope Hollow Road,

Loganville, Georgia 30052-2280, in Gwinnett County, Georgia, or at any other

place and by any means proper under Georgia law.


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JURISDICTION AND VENUE

7. This action for patent infringement arises under the provisions of 35U.S.C. 271 et seq. This Court has subject matter jurisdiction over causes of

action for patent infringement pursuant to 28 U.S.C. 1331 and 1338.

8. This action for unfair competition and false designation or originarises under the Lanham Act, 35 U.S.C. 1051 et seq. This Court has subject

matter jurisdiction over causes of action under the Lanham Act pursuant to 28

U.S.C. 1331 and 1338, and Section 39 of the Lanham Act, 15 U.S.C. 1121.

9. This Court has jurisdiction over the common law claims in this actionpursuant to 28 U.S.C. 1367(a) , as the common law claims are so related to the

federal claims that they form part of the same case or controversy and derive from

a common nucleus of operative fact.

10. Defendant, TOUSPA, LLC, is subject to this Courts personaljurisdiction because TOUSPA, LLC, is a resident corporate entity of the State of

Georgia which has transacted business and committed tortious acts within this

State including, at least, importing, making, using, offering to sell and/or selling

products that are substantially similar imitations of Plaintiff SALON SPA

SUPPLY LLCs patented products and/or Plaintiffs unique patented design.


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11. Defendant, TONY HOANG, is subject to this Courts personaljurisdiction because Defendant TONY HOANG is a resident of the State of

Georgia who has transacted business and committed tortious acts within this State

including, at least, breach of contract and importing, making, using, offering to sell

and/or selling products that are substantially similar imitations of Plaintiff SALON

SPA SUPPLY LLCs patented products and/or Plaintiffs unique patented design.

12. Defendant, TRAN PHAM, is subject to this Courts personaljurisdiction because Defendant TRAN PHAM is a resident of the State of Georgia

who has transacted business and committed tortious acts within this State by

importing, making, using, offering to sell and/or selling of products that are

substantially similar imitations of Plaintiff SALON SPA SUPPLY LLCs patented

products and/or Plaintiffs unique patented design.

13. Venue is proper in this Court under the provisions of 28 U.S.C. 1391 and 1400, because each Defendant has transacted business in this judicial

district, and because each Defendant has committed and/or induced acts of patent

infringement in this judicial district.

14. Venue is proper within the Atlanta Division because the conductdescribed herein took place within the Atlanta Division of this judicial district.


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FACTUAL ALLEGATIONS COMMON TO ALL COUNTS

Salon Spa Supply LLC

15. On or about April 9, 2008, SALON SPA SUPPLY, LLC, Plaintiff inthis action, was duly organized under the laws of the State of Georgia.

16. On or about May 2, 2008, Defendant, TONY HOANG, became theowner of a one-fifth (twenty percent) interest in SALON SPA SUPPLY LLC. A

true and correct copy of the Partnership Agreement is attached hereto as Exhibit C.

Plaintiffs Patented Tub Design

17. On or about August 31, 2010, U.S. Patent Number D622,858 S (the858 Patent), entitled FEET BATHTUB, was duly and lawfully issued to Mr.

Danny Jan, the named inventor of the subject matter claimed in the 858 Patent. A

true and correct copy of the 858 Patent is attached hereto as Exhibit B.

18. Plaintiff SALON SPA SUPPLY LLC is the owner of all right, title,and interest in and to the 858 Patent.

19. Plaintiffs commercial pedicure spa set known as the ZETA model isone of Plaintiffs products that includes features of Plaintiffs patented base and

foot bath.

20. Since as early as January of 2010, Plaintiff SALON SPA SUPPLYLLC has been selling its base and foot bath product, including the ZETA model.


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Plaintiffs patented ZETA model is depicted in photographs attached hereto as

Exhibit B-1.

Defendant TONY HOANGs Tortious and Bad Faith Conduct DuringHis Part Ownership of Salon Spa Supply LLC

21. The Shipment: On or about September 3, 2010, Defendant TONYHOANG shipped one of Plaintiffs ZETA pedicure spa sets to his father-in-law,

Mr. Pham Thanh, in Vietnam. Mr. Pham Thanh is the father of Defendant, TRAN

PHAM. A true and correct copy of the Commercial Invoice for this shipment is

attached hereto as Exhibit D.

22. Defendant TONY HOANG made this shipment without theknowledge of his fellow partners at Salon Spa Supply LLC, and without

authorization by Salon Spa Supply LLC.

23. After Defendant TONY HOANG withdrew from the partnership, oneof the remaining partners found a copy of the Commercial Invoice (Exhibit D) for

the shipment.

24. The Domain Name: On or about February 2, 2011, while still holdingan ownership interest in SALON SPA SUPPLY LLC, Defendant TONY HOANG

registered the domain name, www.TOUSPA.com. A true and correct copy of the

WHO-IS report for this domain name is attached hereto as Exhibit E.


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25. Company Assets and Data on Tonys Work Computer: During thetime period when Defendant TONY HOANG held an ownership interest in

SALON SPA SUPPLY LLC, the company provided him with a company

computer for his use. The information on this computer remained the property of

SALON SPA SUPPLY LLC, which provided and paid for computer backup

services in order to assure safekeeping of company information and data.

26. Near the end of the time period when Defendant TONY HOANG heldan ownership interest in SALON SPA SUPPLY LLC a few days before April 4,

2011 Defendant TONY HOANG accessed his company computer, made a copy

of all or most of the company information stored on his company computer, and

then destroyed the company information and data that had been stored on his

company computer.

27. When confronted, Defendant TONY HOANG admitted making acopy of all or most of the company information stored on his company computer.

28. When asked to return the company information that was once storedon his company computer, Defendant TONY HOANG claimed that he had already

deleted his copy of the company information.


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The Partnership Interest Purchase Agreement betweenDefendant TONY HOANG and Plaintiff, Salon Spa Supply LLC

(The Agreement)

29. On or about April 4, 2011, Plaintiff and Defendant TONY HOANGentered into a Partnership Interest Purchase Agreement (the Agreement). A true

and correct copy of the Partnership Interest Purchase Agreement is attached hereto

as Exhibit A.

30. The Non-Competition Restriction: The Agreement includes specificlimitations on Defendant TONY HOANGs ability to engage in a business that is

similar to Plaintiffs business. Specifically, paragraph 4 of the Agreement recites:

4. NON-COMPETITION. No Competition. For a period of one(1) year following the date [of] signing this agreement Seller[TONY HOANG] shall not directly or indirectly, either individually

or with others, engage or have any interest, as an owner, employee,representative, agent, consultant or otherwise, in any business, whichis own or have interest [sic] by family or immediately familymembers or relatives, that is similar to the business conducted by SSS,LLC [SALON SPA SUPPLY, LLC] within the twelve and 7/10th(12.7) miles radius from SSS, LLCs Norcross office. . ExhibitA, The Agreement, at 4, pages 2-3.

31. The Non-Disclosure Restriction: The Agreement includes specificlimitations on the disclosure of Confidential Information to any person not

employed by SALON SPA SUPPLY, LLC. Paragraph 5 of the Agreement recites:

5. NON-DISCLOSURE [OF] CONFIDENTIALINFORMATION. No Disclosure. Seller [TONY HOANG] shallnot, at any time, use or disclose any Confidential Information to any


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person not employed by SSS, LLC [SALON SPA SUPPLY, LLC]without the prior written authorization of SSS, LLC . The parties

hereto stipulate that all Confidential Information is and will beimportant and material and does and will contribute significantly tothe successful conduct of SSS, LLCs business and to its goodwill..

Confidential Information Definition. For purposes of thisagreement, the term Confidential Information means informationwhich not generally known in SSS, LLCs industry, which has beenproprietary to SSS, LLC, and which been subject to efforts by SSS,LLC to maintain its confidentiality, . Exhibit A, The Agreement,

at 5, page 3.

32. The Agreement to Return Company Assets and Data: TheAgreement requires Defendant TONY HOANG to return all company assets and

data. Paragraph 6 of the Agreement recites:

6. Company Assets and Company Information. Seller [TONYHOANG] have to return [sic] all company assets and data related [to]

or under Salon Spa Supply, LLC name. Data includes any customers,vendors, designings, drawings, company domains, hosting websites,all company access, and financial informations [sic]. Exhibit A, TheAgreement, at 6, page 3.

33. Because the parties agreed that Plaintiffs damages from a potentialbreach by Defendant would not be readily ascertainable, Defendant TONY

HOANG and Plaintiff agreed upon and included a liquidated damages provision in

the Agreement. Specifically, Defendant TONY HOANG acknowledged and

agreed to pay liquidated damages in the amount of One Hundred Forty-four


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Thousand Dollars ($ 144,000.00) in the event of his breach of any provision of the

Agreement. Exhibit A, The Agreement, page 4.

Defendant TONY HOANGs Tortious, Bad Faith, and InfringingConduct, Including Breach of Multiple Provisions of the Agreement

A. Breach of the Non-Competition Agreement

34. On or about May 16, 2011 just 42 days after the Agreement, andduring the one-year non-competition period Defendant TONY HOANGs spouse

(Defendant TRAN PHAM) submitted the papers necessary to organize TOUSPA,

LLC, in Georgia. Defendant TRAN PHAM listed herself as the sole officer and

registered agent, and using an address in Loganville, Georgia, as the business

address. A true and correct copy of the Certificate of Organization for this

corporate entity is attached hereto as Exhibit F.

35. On or before May 16, 2011, and continuing thereafter during theone-year non-competition period Defendant TONY HOANG engaged in the

business of TOUSPA, LLC at a location within 12.7 miles of Plaintiffs Norcross

office; including, specifically, at his personal residence which is located

approximately 10.8 miles from Plaintiffs Norcross office.




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office; including, specifically, at a facility leased or rented by TOUSPA, LLC,

which is located approximately 5.3 miles from Plaintiffs Norcross office.

B. Breach of the Non-Disclosure Agreement

37. Defendant TONY HOANG acknowledged and agreed that he shallnot, at any time, use or disclose any Confidential Information to any person not

employed by SSS, LLC [SALON SPA SUPPLY, LLC] without the prior written

authorization of SSS, LLC. The Agreement, Exhibit A at 5, page 3 (underlining

added).

38. Plaintiffs Confidential Information includes information aboutPlaintiffs patented base and foot bath design for pedicure chairs, including but not

limited to the manufacturing process, mold specifications, materials, and

dimensions. This Confidential Information is not generally known in the industry,

is proprietary to Plaintiff, and has been subject to reasonable efforts by Plaintiff to

maintain its confidentiality.

39. Defendant TONY HOANG has been and is currently using PlaintiffsConfidential Information, without prior written authorization by Plaintiff, in order

to unlawfully copy Plaintiffs products and to unlawfully and willfully infringe on

Plaintiffs patented base and foot bath design.


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40. Defendant TONY HOANG has been and is currently disclosing toothers Plaintiffs Confidential Information, without prior written authorization by

Plaintiff, in order to unlawfully copy Plaintiffs products and to unlawfully and

willfully infringe on Plaintiffs patented base and foot bath design. For example,

Defendant TONY HOANG, either alone or together with Defendants TRAN

PHAM and/or TOUSPA LLC, has been and is now currently disclosing Plaintiffs

Confidential Information to others, including one of TOUSPAs manufacturers:

Nautran LLC located in Ho Chi Minh City, Vietnam. A true and correct copy of a

Bill of Lading is attached hereto as Exhibit J.

C. Breach of the Duty to Return Company Assets and Data

41. Defendant TONY HOANG acknowledged and agreed that he mustreturn all company assets and data related [to] or under Salon Spa Supply, LLC

name. Exhibit A, The Agreement, at 6, page 3.

42. Plaintiffs company assets and data includes the computer files thatwere copied and retained for later use by Defendant TONY HOANG shortly

before the Agreement was signed.

43. Plaintiffs company assets and data includes an example layout designand floor plan for a spa. A true and correct copy of Plaintiffs Deluxe Nails &

Spa floor plan is attached hereto as Exhibit K-1. Also, a true and correct copy of


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an advertisement by Plaintiff which includes the Deluxe Nails & Spa floor plan

is attached hereto as Exhibit K-2.

44. Defendant TONY HOANG, either alone or together with DefendantsTRAN PHAM and/or TOUSPA LLC, published a copy of Plaintiffs Deluxe

Nails & Spa floor plan in an advertisement that was placed in Tr magazine. A

true and correct copy of an advertisement in Tr magazine, dated 24 August 2012,

featuring TOUSPAs unauthorized copy of Plaintiffs floor plan is attached hereto

as Exhibit L. As shown in the advertisement, the title Deluxe Nails & Spa has

been replaced with the text TOUSPA, LLC Conceptual Design.

D. Willful Infringement of Plaintiffs Design Patent

45. Each Defendant, at all times relevant hereto, has had actualknowledge of the 858 Patent and the subject matter claimed in the 858 Patent.

46. Since at least as early as April 2012, Defendant TONY HOANG,either alone or together with Defendants TRAN PHAM and/or TOUSPA LLC, has

been and is now currently willfully and directly infringing the 858 Patent and/or

indirectly infringing the 858 Patent (by way of inducing infringement and/or

contributing to the infringement) in the State of Georgia, in this judicial district,

and elsewhere in the United States, by conduct that includes importing, making,

using, offering to sell, and/or selling one or more products that infringe the 858


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Patent, including but not limited to the TOUSPA M2 or Sage base and foot

bath for pedicure chairs (hereinafter collectively referred to as the accused

TOUSPA products). The accused TOUSPA products are depicted in photographs

and advertisements attached hereto as Exhibits M-1 (the product in the center),

M-2, and M-3.

47. On or about April 26, 2012, Defendant TONY HOANG, either aloneor together with Defendants TRAN PHAM and/or TOUSPA LLC, willfully and

directly infringed the 858 Patent and/or indirectly infringed the 858 Patent (by

way of inducing infringement and/or contributing to the infringement) in the State

of Georgia, in this judicial district, by selling two (2) model M2 Pedicure Spa

Tub products to Mr. Tuan Doan in Lawrenceville, Georgia. A true and correct

copy of an Invoice is attached hereto as Exhibit N.

Defendant TRAN PHAMs Tortious, Bad Faith, andInfringing Conduct

48. Upon information and belief, on or about September 3, 2010,Defendant TRAN PHAM participated in the secret shipment to her father, Mr.

Pham Thanh in Vietnam, of one of Plaintiffs commercial pedicure spa sets known

as the ZETA model. A true and correct copy of the Commercial Invoice for this

shipment is attached hereto as Exhibit D.


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49. On or about May 16, 2011, Defendant TRAN PHAM submitted thepapers necessary to organize TOUSPA, LLC, in Georgia. Defendant TRAN

PHAM listed herself as the sole officer and registered agent. Defendant TRAN

PHAM, either alone or together with her spouse, Defendant TONY HOANG, used

the Loganville address (394 Hope Hollow Road, Loganville, Georgia 30052) for

TOUSPA, LLC. A true and correct copy of the Certificate of Organization for this

corporate entity is attached hereto as Exhibit F.

50. On or about May 16, 2011, and continuing thereafter, DefendantTRAN PHAM engaged in or had an interest in the business of TOUSPA, LLC, in

which a family member (her spouse, TONY HOANG) also had an ownership or

other interest.

51. After the formation of TOUSPA, LLC, and continuing thereafter,Defendant TRAN PHAM, without authorization by Plaintiff, used and/or disclosed

to others Plaintiffs Confidential Information.

52. After the formation of TOUSPA, LLC, and continuing thereafter,Defendant TRAN PHAM, has kept and maintained at least one copy of Plaintiffs

company assets and data.

53. Since at least as early as April 2012, Defendant TRAN PHAM, eitheralone or together with Defendants TONY HOANG and/or TOUSPA LLC, has


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been and is now currently willfully and directly infringing the 858 Patent and/or

indirectly infringing the 858 Patent.

Defendant TOUSPA, LLCs Tortious, Bad Faith, andInfringing Conduct

54. Since at least about May 16, 2011, and continuing thereafter,Defendant TOUSPA, LLC, has been engaged in a business that is similar to the

business conducted by Plaintiff, SALON SPA SUPPLY LLC.

55. Defendant TOUSPA, LLC, without authorization by Plaintiff, hasused and/or disclosed to others Plaintiffs Confidential Information.

56. Defendant TOUSPA, LLC, has kept and maintained at least one copyof Plaintiffs company assets and data.

57.

Since at least as early as April 2012, Defendant TOUSPA LLC, either

alone or together with Defendants TONY HOANG and/or TRAN PHAM, has been

and is now currently willfully and directly infringing the 858 Patent and/or

indirectly infringing the 858 Patent.

58. Defendants are continuing to make, use, import, offer for sale, and/orsell one or more products that infringe the 858 Patent and will continue to do so

unless enjoined by this Court.


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COUNT 1

BREACH OF CONTRACT

(Against Defendant, TONY HOANG)

59. Plaintiff repeats and re-alleges the allegations contained in all thepreceding paragraphs, as if fully set forth herein.

60. The Partnership Interest Purchase Agreement ( the Agreement)executed on or about April 4, 2011, between Plaintiff and Defendant TONY

HOANG is a valid and enforceable contract.

61. Plaintiff, SALON SPA SUPPLY LLC, has fully performed all of itsobligations under the Agreement.

A. Breach of the Non-Competition Agreement

62. The Agreement includes specific limitations on Defendant TONYHOANGs ability to engage in a business that is similar to Plaintiffs business.

Specifically, paragraph 4 of the Agreement recites:

4. NON-COMPETITION. No Competition. For a period of one(1) year following the date [of] signing this agreement Seller[TONY HOANG] shall not directly or indirectly, either individually

or with others, engage or have any interest, as an owner, employee,representative, agent, consultant or otherwise, in any business, whichis own or have interest [sic] by family or immediately familymembers or relatives, that is similar to the business conducted by SSS,LLC [SALON SPA SUPPLY, LLC] within the twelve and 7/10th(12.7) miles radius from SSS, LLCs Norcross office. .Exhibit A, The Agreement, at 4, pages 2-3.


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63. Defendant TONY HOANG was contractually prohibited for one year(between April 4, 2011, and April 4, 2012) from competing with Plaintiff by

engaging in any business that is owned by family member or relative, or in which

any family member of relative has an interest, that is similar to the business

conducted by Plaintiff within a 12.7-mile radius of Plaintiffs Norcross office.

64. Defendant TONY HOANG breached his contractual duties to Plaintiffby, during the one-year non-compete period, either directly or indirectly, engaging

in a business (including TOUSPA, LLC) that was owned by a family member

(including his spouse, TRAN PHAM) and that is similar to the business conducted

by Plaintiff, within a 12.7-mile radius of Plaintiffs Norcross office.

65. On or about May 16, 2011 just 42 days after the Agreement, andduring the one-year non-competition period Defendant TONY HOANGs spouse

(Defendant TRAN PHAM) submitted the papers necessary to organize TOUSPA,

LLC, in Georgia. Defendant TRAN PHAM listed herself as the sole officer and

registered agent, and using an address in Loganville, Georgia, as the business

address.

66. Defendant TONY HOANG, either alone or together with his spouse,Defendant TRAN PHAM, used the Loganville address (394 Hope Hollow Road,


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Loganville, Georgia 30052) for TOUSPA, LLC, in a deliberate but failed attempt

to circumvent the geographical limitation set forth in the Agreement.

67. The business of TOUSPA, LLC is similar to the business conductedby Plaintiff, SALON SPA SUPPLY, LLC.

68. On or before May 16, 2011, and continuing thereafter during theone-year non-competition period Defendant TONY HOANG participated in the

planning, organization, formation, and/or operation of the business conducted by

TOUSPA, LLC.

69. On or before May 16, 2011, and continuing thereafter during theone-year non-competition period Defendant TONY HOANG engaged in or had

an interest in the business of TOUSPA, LLC, in which a family member (his

spouse TRAN PHAM) has an ownership or other interest.



office; including, specifically, at his personal residence. Defendant TONY

HOANGs residence address is approximately 10.8 miles (driving distance) from

Plaintiffs Norcross office. Plaintiffs Norcross office is located at 1855 Beaver

Ridge Circle, Suite A in Norcross, Georgia 30071-3800. Defendant TONY


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HOANGs Tucker residence is located at 3714 Marlborough Drive in Tucker,

Georgia 30084-8330. A true and correct copy of a map between Plaintiffs

Norcross office and Hoangs Tucker residence is attached hereto as Exhibit G.



office; including, specifically, at a facility leased or rented by TOUSPA, LLC. The

TOUSPA facility is approximately 5.3 miles (driving distance) form Plaintiffs

Norcross office. Plaintiffs Norcross office is located at 1855 Beaver Ridge Circle,

Suite A in Norcross, Georgia 30071-3800. The TOUSPA facility is located at

2245 Button Gwinnet Drive in Atlanta, Georgia 30340-1516. A true and correct

copy of a map between Plaintiffs Norcross office and the TOUSPA facility is

attached hereto as Exhibit H.

72. During the one-year non-competition period, Defendant TONYHOANG engaged in the business of TOUSPA, LLC by leasing, renting, or

otherwise procuring space for TOUSPA at 2245 Button Gwinnet Drive in Atlanta,

Georgia 30340-1516.

73. Within days of the expiration of the one-year non-competition period,on or about Sunday, April 22, 2012, Defendant TOUSPA, LLC held a Grand


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Opening Event at 2245 Button Gwinnet Drive in Atlanta, Georgia 30340-1516.

A true and correct copy of an Event posted on TOUSPAs Facebook page is

attached hereto as Exhibit I.

74. Also during the one-year non-competition period, upon informationand belief, Defendant TONY HOANG, either alone or together with Defendants

TRAN PHAM and/or TOUSPA LLC, has been and is now currently directly

infringing the 858 Patent and/or indirectly infringing the 858 Patent (by way of

inducing infringement and/or contributing to the infringement) in the State of

Georgia, in this judicial district, and elsewhere in the United States, by conduct

that includes importing, making, using, offering to sell, and/or selling one or more

products that infringe the 858 Patent, including but not limited to the TOUSPA

M2 or Sage base and foot bath for pedicure chairs (hereinafter collectively

referred to as the accused TOUSPA products). The accused TOUSPA products

are depicted in photographs and advertisements attached hereto as Exhibits M-1

(center), M-2, and M-3.

B. Breach of the Non-Disclosure Agreement

75. The Agreement includes specific limitations on the disclosure ofConfidential Information to any person not employed by SALON SPA SUPPLY,

LLC. Specifically, paragraph 5 of the Agreement recites:


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5. NON-DISCLOSURE [OF] CONFIDENTIALINFORMATION. No Disclosure. Seller [TONY HOANG] shall

not, at any time, use or disclose any Confidential Information to anyperson not employed by SSS, LLC [SALON SPA SUPPLY, LLC]without the prior written authorization of SSS, LLC . The partieshereto stipulate that all Confidential Information is and will beimportant and material and does and will contribute significantly tothe successful conduct of SSS, LLCs business and to its goodwill..

Confidential Information Definition. For purposes of thisagreement, the term Confidential Information means information

which not generally known in SSS, LLCs industry, which has beenproprietary to SSS, LLC, and which been subject to efforts by SSS,LLC to maintain its confidentiality, . Exhibit A, The Agreement,at 5, page 3.

76. Defendant TONY HOANG was contractually prohibited from usingor disclosing Plaintiffs Confidential Information, at any time, to any person not

employed by Plaintiff, without the prior written authorization of Plaintiff.

77. Defendant TONY HOANG never requested Plaintiffs writtenauthorization to use or disclose Plaintiffs Confidential Information.

78. Defendant TONY HOANG never received any written authorizationby Plaintiff to use or disclose Plaintiffs Confidential Information.

79.

Defendant TONY HOANG breached his contractual duties to Plaintiff

by using or disclosing Plaintiffs Confidential Information, at any time, to any

person not employed by Plaintiff, without the prior written authorization of

Plaintiff.


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80. Plaintiffs Confidential Information includes information aboutPlaintiffs patented base and foot bath design for pedicure chairs, including but not

limited to the manufacturing process, mold specifications, materials, and

dimensions. This Confidential Information is not generally known in the industry,

is proprietary to Plaintiff, and has been subject to reasonable efforts by Plaintiff to

maintain its confidentiality.

81. Defendant TONY HOANG stipulated in the Agreement thatPlaintiffs Confidential Information is important and material, and that it

contributes significantly to Plaintiffs business and its good will. Specifically,

paragraph 5 of the Agreement recites:

The parties hereto stipulate that all Confidential Information has

been acquired by SSS, LLC at great expense and substantial effort andis and will be important and material and does and will contributesignificantly to the successful conduct of SSS, LLCs business and toits goodwill. . Exhibit A, The Agreement, at 5, page 3.

82. Defendant TONY HOANG has been and is currently using PlaintiffsConfidential Information, without prior written authorization by Plaintiff, in order

to unlawfully copy Plaintiffs products and to unlawfully and willfully infringe on

Plaintiffs patented base and foot bath design.

83. For example, Defendant TONY HOANG, on or about September 3,2010, shipped one of Plaintiffs ZETA pedicure spa sets to his father-in-law, Mr.


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Pham Thanh in Vietnam, for the purpose of copying it and deliberately infringing

the 858 Patent. This conduct is part of an insidious and continuing pattern of

conduct by Defendant TONY HOANG that includes both using and disclosing

Plaintiffs Confidential Information unlawfully and for his own gain.

84. Defendant TONY HOANG has been and is currently disclosing toothers Plaintiffs Confidential Information, without prior written authorization by

Plaintiff, in order to unlawfully copy Plaintiffs products and to unlawfully and

willfully infringe on Plaintiffs patented base and foot bath design. For example,

Defendant TONY HOANG, either alone or together with Defendants TRAN

PHAM and/or TOUSPA LLC, has been and is now currently disclosing Plaintiffs

Confidential Information to others, including one of TOUSPAs manufacturers:

Nautran LLC located in Ho Chi Minh City, Vietnam. A true and correct copy of a

Bill of Lading is attached hereto as Exhibit J.

C. Breach of the Duty to Return Company Assets and Data

85. The Agreement requires Defendant TONY HOANG to return allcompany assets and data. Paragraph 6 of the Agreement recites:

6. Company Assets and Company Information. Seller [TONYHOANG] have to return [sic] all company assets and data related [to]or under Salon Spa Supply, LLC name. Data includes any customers,vendors, designings, drawings, company domains, hosting websites,all company access, and financial informations [sic]. Exhibit A, TheAgreement, at 6, page 3.


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86. Defendant TONY HOANG was contractually obligated to return toPlaintiff any and all company assets and data in his possession, custody, or control.

87. Defendant TONY HOANG admitted to making a copy of all or mostof the company information stored on his company computer.

88. Defendant TONY HOANG breached his contractual duties to Plaintiffby refusing or failing to return to Plaintiff any and all company assets and data in

his possession, custody, or control.

89. Plaintiffs company assets and data includes the computer files thatwere copied and retained for later use by Defendant TONY HOANG shortly

before the Agreement was signed.

90. Plaintiffs company assets and data includes an example layout designand floor plan for a spa. A true and correct copy of Plaintiffs Deluxe Nails &

Spa floor plan is attached hereto as Exhibit K-1. Also, a true and correct copy of

an advertisement by Plaintiff which includes the Deluxe Nails & Spa floor plan

is attached hereto as Exhibit K-2.

91. Defendant TONY HOANG, either alone or together with DefendantsTRAN PHAM and/or TOUSPA LLC, published a copy of Plaintiffs Deluxe

Nails & Spa floor plan in an advertisement. A true and correct copy of one of

TOUSPAs advertisements featuring the floor plan is attached hereto as Exhibit L.


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As shown in the advertisement, the title Deluxe Nails & Spa has been replaced

with the text TOUSPA, LLC Conceptual Design. Otherwise, no changes were

made to Plaintiffs original floor plan.

92. Plaintiff SALON SPA SUPPLY LLC is the owner of all right, title,and interest in the original work of authorship that is known as the Deluxe Nails

& Spa floor plan and shown in Exhibit K-1 and Exhibit K-2.

93. Defendants drawing entitled TOUSPA, LLC Conceptual Design asshown in Exhibit L is an unauthorized copy of Plaintiffs Deluxe Nails & Spa

floor plan.

94. None of the Defendants has any right, title, or interest in anunauthorized copy of Plaintiffs Deluxe Nails & Spa floor plan.

95. Defendants publication of the TOUSPA, LLC Conceptual Design inan advertisement proves conclusively that Defendant TONY HOANG, either alone

or together with Defendants TRAN PHAM and/or TOUSPA LLC, has breached

the Agreement by continuing to possess a copy of Plaintiffs Deluxe Nails & Spa

floor plan, in violation of HOANGs obligation to return all company assets and

data related [to] or under Salon Spa Supply, LLC name.

96. As a direct and proximate result of Defendant TONY HOANGsbreach of at least three provisions of the Agreement (a) the non-competition


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provision, (b) the non-disclosure provision, and (c) the duty to return company

assets and data the Plaintiff SALON SPA SUPPLY LLC has been and is

continuing to be irreparably harmed, damaged, and injured, and will continue to

sustain harm, damage, and injury unless Defendants conduct is restrained by this

Court.

97. By accepting substantial payments of money in exchange for hispromise to honor the commitments he made in the Agreement with Plaintiff,

Defendant TONY HOANG is legally and equitably estopped from seeking to avoid

those very commitments.

98. Allowing Defendant TONY HOANG to keep the substantialpayments of money he received while avoiding the commitments, which formed

the basis of the Agreement and those payments, would cause substantial and

detrimental harm to Plaintiff.

99. Injustice and harm to Plaintiff can only be avoided by enforcing thepromise made by Defendant TONY HOANG to honor the commitments in the

Agreement and to continue to otherwise honor all his contractual obligations to

Plaintiff.


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100. Defendant TONY HOANG acknowledged in the Agreement that hehas had a reasonable and adequate opportunity from his receipt of this document to

review it. Exhibit A, The Agreement, page 4.

101. Defendant TONY HOANG was advised by his partners about hisopportunity to obtain independent counsel to advise him about the Agreement.

102. The injury caused by a breach of the Agreement would be difficult orimpossible to accurately estimate.

103. Tony Hoang Agreed the Damages Would Not Be ReadilyAscertainable: Defendant TONY HOANG acknowledged and agreed that, if he

breached any provision of the Agreement, Plaintiffs damages would not be readily

ascertainable.

By signing this Agreement, Seller [TONY HOANG] agrees that ifSeller were to breach any provisions of this Agreement, SSS, LLC[SALON SPA SUPPLY, LLC] would suffer damages that are notreadily ascertainable. . Exhibit A, The Agreement, page 4.

104. Tony Hoang Agreed to Pay Liquidated Damages: Because theparties agreed that Plaintiffs damages from a potential breach by Defendant would

not be readily ascertainable, Defendant TONY HOANG and Plaintiff agreed upon

and included a liquidated damages provision in the Agreement. Specifically,

Defendant TONY HOANG acknowledged and agreed to pay liquidated damages


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in the amount of One Hundred Forty-four Thousand Dollars ($ 144,000.00) in the

event of his breach of any provision of the Agreement.

Accordingly, in addition to [other remedies] for breach of thisAgreement, Seller [TONY HOANG] agrees that in the event of abreach of this Agreement by the Seller, Seller shall pay back to SSS,LLC [SALON SPA SUPPLY, LLC] One Hundred Forty-Fourthousands [sic] dollars in this agreement. . Exhibit A, TheAgreement, page 4.

105. The parties intended to provide for liquidated damages as an estimateof the probable losses resulting from a potential breach, rather than as a penalty (to

either party).

106. The sum agreed upon by the parties represents a reasonable estimateof the probable losses resulting from a potential breach.

107. Tony Hoang Agreed to Submit to Immediate Injunctive ReliefWithout Proof of Harm: Defendant TONY HOANG acknowledged and agreed

that (a) the remedy at law for breach of any provision of the Agreement would be

inadequate, and (b) Plaintiff SALON SPA SUPPLY, LLC, shall be entitled to

injunctive relief for any breach or threatened breach of the Agreement without

proof of any actual damages.

The Seller [TONY HOANG] further agrees that the remedy atlaw for breach of any of the above agreements is inadequate and thatSSS, LLC [SALON SPA SUPPLY, LLC] shall be entitled, in additionto other such remedies as it may have, to injunctive relief for anybreach or threatened breach of this agreement without proof of any


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actual damages that may have been or may be caused to the Company[SALON SPA SUPPLY, LLC] by such breach or threatened breach.

Exhibit A, The Agreement, page 4.

108. Accordingly, because Defendant TONY HOANG has breached atleast three provisions of the Agreement (a) the non-competition provision, (b) the

non-disclosure provision, and (c) the duty to return company assets and data the

Plaintiff SALON SPA SUPPLY LLC is lawfully and contractually entitled to

immediate injunctive relief and to immediate recovery of the liquidated damages in

the amount of One Hundred Forty-four Thousand Dollars ($ 144,000.00).

WHEREFORE, Plaintiff, SALON SPA SUPPLY LLC, respectfully requeststhat this Court enter judgment in its favor and against Defendant TONY HOANGon the Complaint and enter an order as follows:

A. Finding that Defendant TONY HOANG breached his Agreement with

Plaintiff, including at least (a) the non-competition provision, (b) the non-disclosure provision, and/or (c) the duty to return company assets and data.

B. Awarding to Plaintiff the liquidated damages in the amount of OneHundred Forty-four Thousand Dollars ($ 144,000.00).

C. Enjoining Defendants from using or disclosing Plaintiffs ConfidentialInformation.

D. Ordering Defendants return all company assets and data, including

any and all copies of such information.

E. Ordering Defendants to pay Plaintiffs reasonable attorneys fees andcosts incurred in enforcing the terms and provisions of the Agreement.

F. Granting such other and further relief as this Court deems just andproper.


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COUNT 2

BREACH OF FIDUCIARY DUTY AND DUTY OF LOYALTYTO HIS PARTNERS AND TO SALON SPA SUPPLY LLC

(Against Defendant, TONY HOANG)


110. On or about May 2, 2008, Defendant, TONY HOANG, became theowner of a one-fifth (twenty percent) interest in SALON SPA SUPPLY LLC. A

true and correct copy of the Partnership Agreement is attached hereto as Exhibit C.

111. Defendant TONY HOANG had a confidential relationship withPlaintiff, SALON SPA SUPPLY LLC, in which he was privy to proprietary,

confidential, and trade secret information, including but not limited to Plaintiffs

original and unique tub designs, Plaintiffs manufacturers, importers, and suppliers,

Plaintiffs costs, pricing, profit, and financial information, Plaintiffs business and

marketing strategies, and Plaintiffs lists of current and prospective customers.

112. Defendant TONY HOANG owed to Plaintiff a variety of fiduciaryduties, including a duty of loyalty, a duty of good faith, and a duty of fair dealing.

113. While a trusted partner with Plaintiff, Defendant TONY HOANGknowingly, willfully, maliciously, and without justification breached his fiduciary

duties to Plaintiff when, on or about September 3, 2010, he shipped one of


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Plaintiffs ZETA pedicure spa sets to his father-in-law, Mr. Pham Thanh in

Vietnam, for the purpose of copying Plaintiffs patented design, and for the

purpose of competing unfairly with Plaintiff, for his own financial gain.


duties to Plaintiff when, on or about February 2, 2011, he registered the domain

name, www.TOUSPA.com, as part of his plan and for the purpose of competing

unfairly with Plaintiff for his own financial gain. A true and correct copy of the

WHO-IS report for this domain name is attached hereto as Exhibit E.


duties to Plaintiff when, near the end of the time period when he still held an

ownership interest in Plaintiff a few days before April 4, 2011 he accessed his

company computer, made a copy of all or most of the company information stored

on his company computer, and then destroyed the company information and data

that had been stored on his company computer.

116. Since Defendant TONY HOANG executed the Agreement withPlaintiff, Defendant TONY HOANG has knowingly, willfully, maliciously, and

without justification breached his fiduciary duties to Plaintiff by, among other


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conduct: (a) intentionally and unlawfully breaching the non-competition provision

of the Agreement; (b) using and disclosing to others Plaintiffs Confidential

Information without permission, in violation of the Agreement; (c) refusing and

failing to return company assets and data, in violation of the Agreement;

(d) intentionally and willfully infringing Plaintiffs exclusive patent rights by

intentionally copying Plaintiffs patented base and foot bath design for pedicure

chairs; and (e) unfairly competing with Plaintiff, all for his own financial gain.

117. As a direct and proximate result of Defendant TONY HOANGsbreach of his fiduciary duties, Plaintiff has suffered and is continuing to be suffer

severe irreparable harm, financial and otherwise.

118. Defendant TONY HOANGs breach of his fiduciary duties makeshim liable to Plaintiff for compensatory and punitive damages.

119. Defendant TONY HOANGs conduct has caused harm to Plaintiffsgood will and to Plaintiffs business and commercial relations.

120. Defendant TONY HOANG has acted with malice and recklessdisregard for Plaintiffs rights.

121. Defendant TONY HOANGs conduct shows a willful and maliciousindifference to Plaintiffs rights and an entire want of care for Plaintiff and for the

public.


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WHEREFORE, Plaintiff, SALON SPA SUPPLY LLC, respectfully requeststhat this Court enter judgment in its favor and against Defendant TONY HOANG

on the Complaint and enter an order as follows:

A. Awarding to Plaintiff compensatory damages caused by DefendantTONY HOANGs unlawful conduct, in an amount to be proven at trial.

B. Awarding to Plaintiff punitive and exemplary damages, as permittedby statute, arising from Defendant TONY HOANGs intentional and maliciousconduct.

C. Ordering Defendant TONY HOANG to pay Plaintiffs reasonable

attorneys fees and costs incurred in enforcing the terms and provisions of theAgreement.

D. Granting such other and further relief as this Court deems just andproper.

COUNT 3

AIDING AND ABETTING HOANGS BREACH OF

FIDUCIARY DUTY AND DUTY OF LOYALTY

(Against Defendants, TOUSPA, LLC and TRAN PHAM)


123. Defendant TOUSPA, LLC has aided and abetted, and continues to aidand abet, Defendant TONY HOANGs breach of fiduciary duties to Plaintiff, as set

forth herein.


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124. Defendant TRAN PHAM has aided and abetted, and continues to aidand abet, Defendant TONY HOANGs breach of fiduciary duties to Plaintiff, as set

forth herein.

125. Upon information and belief, on or about September 3, 2010,Defendant TRAN PHAM participated in the secret shipment to her father, Mr.

Pham Thanh in Vietnam, of one of Plaintiffs commercial pedicure spa sets known

as the ZETA model. A true and correct copy of the Commercial Invoice for this

shipment is attached hereto as Exhibit D.

126. Upon information and belief, Defendant TRAN PHAM participated inthe secret shipment to her father with actual knowledge that her spouse, Defendant

TONY HOANG, intended to and made the shipment without the knowledge of his

fellow partners at Salon Spa Supply LLC, and without authorization by Salon Spa

Supply LLC.

127. On or about May 16, 2011, Defendant TRAN PHAM submitted thepapers necessary to organize TOUSPA, LLC, in Georgia. Defendant TRAN

PHAM listed herself as the sole officer and registered agent. Defendant TRAN

PHAM, either alone or together with her spouse, Defendant TONY HOANG, used

the Loganville address (394 Hope Hollow Road, Loganville, Georgia 30052) for

TOUSPA, LLC, in a deliberate but failed attempt to circumvent the geographical


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limitation set forth in the Agreement. A true and correct copy of the Certificate of

Organization for this corporate entity is attached hereto as Exhibit F.



other interest, thereby aiding and abetting Defendant TONY HOANGs breach of

his non-competition obligation in the Agreement.


to others confidential information about the Plaintiffs patent tub design and

manufacture, thereby aiding and abetting Defendant TONY HOANGs breach of

his non-disclosure obligation in the Agreement.


company assets and data, thereby aiding and abetting Defendant TONY HOANGs

breach of his duty to return company assets and data to Plaintiff.

131. Defendant TOUSPA, LLC, without authorization by Plaintiff, usedand/or disclosed to others confidential information about the Plaintiffs patent tub


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design and manufacture, thereby aiding and abetting Defendant TONY HOANGs

breach of his non-disclosure obligation in the Agreement.

132. Defendant TOUSPA, LLC, has kept and maintained at least one copyof Plaintiffs company assets and data, thereby aiding and abetting Defendant

TONY HOANGs breach of his duty to return company assets and data to Plaintiff.

133. As a direct and proximate result of Defendants conduct andintentional aid provided in furtherance of TONY HOANGs breach of his fiduciary

duties, Plaintiff has suffered and is continuing to be suffer severe irreparable harm,

financial and otherwise.

134. Defendants conduct and intentional aid provided in furtherance ofTONY HOANGs breach of his fiduciary duties makes Defendants liable to

Plaintiff for compensatory and punitive damages.

135. Defendants conduct has caused harm to Plaintiffs good will and toPlaintiffs business and commercial relations.

136. Defendants has acted with malice and reckless disregard for Plaintiffsrights.

137. Defendants conduct shows a willful and malicious indifference toPlaintiffs rights and an entire want of care for Plaintiff and for the public.


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WHEREFORE, Plaintiff, SALON SPA SUPPLY LLC, respectfully requeststhat this Court enter judgment in its favor and against Defendants TOUSPA, LLC

and TRAN PHAM on the Complaint and enter an order as follows:

A. Awarding to Plaintiff compensatory damages caused by Defendantsunlawful conduct, in an amount to be proven at trial.

B. Awarding to Plaintiff punitive and exemplary damages, as permittedby statute, arising from Defendants intentional and malicious conduct.

C. Ordering Defendants to pay Plaintiffs reasonable attorneys fees andcosts incurred in enforcing the terms and provisions of the Agreement.


COUNT 4

TORTIOUS INTEREFERENCE WITH CONTRACTUAL

RELATIONS

(Against Defendants, TOUSPA, LLC and TRAN PHAM)


139. Defendant TOUSPA, LLC has intentionally and tortiously interferedwith Plaintiffs business relations, including its Agreement with Defendant TONY

HOANG.

140. Defendant TRAN PHAM has intentionally and tortiously interferedwith Plaintiffs business relations, including its Agreement with Defendant TONY

HOANG.


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other interest, thereby interfering with Plaintiffs contractual relations with

Defendant TONY HOANG.


to others confidential information about the Plaintiffs patent tub design and

manufacture, thereby interfering with Plaintiffs contractual relations with

Defendant TONY HOANG.


company assets and data, thereby interfering with Plaintiffs contractual relations

with Defendant TONY HOANG.

144. Defendant TOUSPA, LLC, without authorization by Plaintiff, usedand/or disclosed to others confidential information about the Plaintiffs patent tub

design and manufacture, thereby interfering with Plaintiffs contractual relations

with Defendant TONY HOANG.


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145. Defendant TOUSPA, LLC, has kept and maintained at least one copyof Plaintiffs company assets and data, thereby interfering with Plaintiffs

contractual relations with Defendant TONY HOANG.

146. As a direct and proximate result of Defendants conduct of interferingwith Plaintiffs business and contractual relations, Plaintiff has suffered and is

continuing to be suffer severe irreparable harm, financial and otherwise.

147. Defendants conduct has caused harm to Plaintiffs good will and toPlaintiffs business and commercial relations.

148. Defendants has acted with malice and reckless disregard for Plaintiffsrights.

149. Defendants conduct shows a willful and malicious indifference toPlaintiffs rights and an entire want of care for Plaintiff and for the public.

WHEREFORE, Plaintiff, SALON SPA SUPPLY LLC, respectfully requeststhat this Court enter judgment in its favor and against Defendants TOUSPA, LLCand TRAN PHAM on the Complaint and enter an order as follows:

A. Awarding to Plaintiff compensatory damages caused by Defendantsunlawful conduct, in an amount to be proven at trial.

B. Awarding to Plaintiff punitive and exemplary damages, as permittedby statute, arising from Defendants intentional and malicious conduct.

C. Ordering Defendants to pay Plaintiffs reasonable attorneys fees andcosts incurred in enforcing the terms and provisions of the Agreement.


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COUNT 5

WILLFUL DESIGN PATENT INFRINGEMENT

(Against All Defendants)


151. On or about August 31, 2010, U.S. Patent Number D622,858 S (the858 Patent), entitled FEET BATHTUB, was duly and lawfully issued to Mr.

Danny Jan, the named inventor of the subject matter claimed in the 858 Patent. A

true and correct copy of the 858 Patent is attached hereto as Exhibit B.

152. On or about May 12, 2012, Mr. Danny Jan assigned his interest in the858 Patent to Plaintiff, SALON SPA SUPPLY, LLC.

153. Plaintiff SALON SPA SUPPLY LLC is the owner of all right, title,and interest in and to the 858 Patent.

154. The 858 Patent is valid and enforceable.155. As shown in Figure 6 of the 858 Patent, the features on the floor of

the foot bath, including the location of the floor drain, are illustrated using dashed

lines, which indicates that those features are not part of the design being claimed.


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156. Plaintiffs commercial pedicure spa set known as the ZETA model isone of Plaintiffs products that includes features of Plaintiffs patented base and

foot bath.

157. Since as early as January of 2010, Plaintiff SALON SPA SUPPLYLLC has been selling its base and foot bath product, including the ZETA model.

Plaintiffs patented ZETA model is depicted in photographs attached hereto as

Exhibit B-1.

158. Each Defendant, at all times relevant hereto, has had actualknowledge of the 858 Patent and the subject matter claimed in the 858 Patent.

159. Since at least as early as April 2012, Defendants, TOUSPA LLC,TONY HOANG, and TRAN PHAM, have been and are now currently willfully

and directly infringing the 858 Patent and/or indirectly infringing the 858 Patent

(by way of inducing infringement and/or contributing to the infringement) in the

State of Georgia, in this judicial district, and elsewhere in the United States, by

conduct that includes importing, making, using, offering to sell, and/or selling one

or more products that infringe the 858 Patent, including but not limited to the

TOUSPA M2 or Sage base and foot bath for pedicure chairs (hereinafter

collectively referred to as the accused TOUSPA products). The accused


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TOUSPA products are depicted in photographs and advertisements attached hereto

as Exhibits M-1 (center), M-2, and M-3 (left side).

160. The accused TOUSPA products include the base and foot bath shownin the center of the photograph attached hereto as Exhibit M-1, which is a true and

correct copy of a photograph posted on TOUSPAs Facebook page.

161. The accused TOUSPA products include the base and foot bath shownin the photograph attached hereto as Exhibit M-2, which is a true and correct copy

of a photograph posted on TOUSPAs Facebook page.

162. The accused TOUSPA products include the base and foot bath modelsshown on the left side of the one-page advertisement attached hereto as Exhibit

M-3, which is a true and correct copy of a one-page advertisement posted on

TOUSPAs Facebook page.

163. The accused TOUSPA products, such as the base and foot bathmodels shown on the left side of Exhibit M-3, are being offered for sale and sold

by Defendant TOUSPA LLC at a price that is approximately twenty percent (20%)

less than Plaintiffs price.

164. On or about April 26, 2012, Defendants, TOUSPA LLC, TONYHOANG, and TRAN PHAM, willfully and directly infringed the 858 Patent

and/or indirectly infringed the 858 Patent (by way of inducing infringement and/or


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contributing to the infringement) in the State of Georgia, in this judicial district, by

selling two (2) model M2 Pedicure Spa Tub products to Mr. Tuan Doan in

Lawrenceville, Georgia. A true and correct copy of an Invoice is attached hereto

as Exhibit N.

165. The single claim of the 858 Patent recites, The ornamental designfor a feet bathtub, as shown and described.

166. The accused TOUSPA products infringe the single claim of the 858Patent, and defendants are liable for infringement, in violation of 35 U.S.C. 271,

because, in the eye of an ordinary observer, giving such attention as a purchaser

usually gives, the accused TOUSPA products and Plaintiffs patented design are

substantially the same. For example,

Plaintiffs Patented Base and Foot Bath.See also, Exhibit B, The 858 Patent,

Figure 1.

The Accused TOUSPA Product:Defendants M2 Base and Foot Bath.See also, Exhibits M-1, M-2, and M-3.


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167. Because each Defendant, at all times relevant hereto, has had actualknowledge of the 858 Patent and the subject matter claimed in the 858 Patent,

each Defendants conduct constitutes a knowing and willful infringement of the

858 Patent. Accordingly, this is an exceptional case under 35 U.S.C. 285.

168. Because Defendant TONY HOANG, on or about September 3, 2010,shipped one of Plaintiffs ZETA pedicure spa sets to his father-in-law, Mr. Pham

Thanh in Vietnam, for the purpose of copying it and deliberately infringing the

858 Patent, Defendant TONY HOANGs conduct constitutes a knowing and

willful infringement of the 858 Patent. Accordingly, this is an exceptional case

under 35 U.S.C. 285.

169. At the direction of and with instructions from Defendant TONYHOANG, Mr. Pham Thanh in Vietnam used Plaintiffs patented ZETA product to

make one or more molds, for the specific purpose of manufacturing pedicure bases

and foot baths that are deliberate copies of Plaintiffs patented ZETA product.

170. The accused TOUSPA products, including the M2 or Sage baseand foot bath, are deliberate copies of Plaintiffs patented ZETA base and foot

bath.

171. The overall length of the base of Plaintiffs patented ZETA product isapproximately 120 cm.


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172. The overall length of the base of the accused TOUSPA M2 productis also approximately 120 cm.

173. The overall height of the base of Plaintiffs patented ZETA product isapproximately 39 cm.

174. The overall height of the base of the accused TOUSPA M2 productis also approximately 39 cm.

175. The overall width of the base of Plaintiffs patented ZETA product,near the foot bath, is approximately 60 cm.

176. The overall width of the base of the accused TOUSPA M2 product,near the foot bath, is also approximately 60 cm.

177. The height of the foot bath bottom, above the floor, of Plaintiffspatented ZETA product is approximately 36 cm.

178. The height of the foot bath bottom, above the floor, of the accusedTOUSPA M2 product is also approximately 36 cm.

179. The inside width of the foot bath, at the front, of Plaintiffs patentedZETA product is approximately 36 cm.

180. The inside width of the foot bath, at the front, of the accusedTOUSPA M2 product is also approximately 36 cm.


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181. The inside width of the foot bath, at the rear, of Plaintiffs patentedZETA product is approximately 38 cm.

182. The inside width of the foot bath, at the rear, of the accused TOUSPAM2 product is also approximately 38 cm.

183. The diagonal distance across the foot bath, to the outer edges, ofPlaintiffs patented ZETA product is approximately 67.5 cm.

184. The diagonal distance across the foot bath, to the outer edges, of theaccused TOUSPA M2 product is also approximately 67.5 cm.

185. The diagonal distance across the foot bath, to the inside edges, ofPlaintiffs patented ZETA product is approximately 48.5 cm.

186. The diagonal distance across the foot bath, to the inside edges, of theaccused TOUSPA M2 product is also approximately 48.5 cm.

187. The inside length of the foot bath, near the center, of Plaintiffspatented ZETA product is approximately 41 cm.

188. The inside length of the foot bath, near the center, of the accusedTOUSPA M2 product is also approximately 41 cm.

189. The depth of the foot bath of Plaintiffs patented ZETA product isapproximately 27 cm at the drain end, and approximately 24 cm at the opposite

end.


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190. The depth of the foot bath of the accused TOUSPA M2 product isalso approximately 27 cm at the drain end, and approximately 24 cm at the

opposite end.

191. The distance from the inner side of the foot bath to the first curvilinearchange in thickness of Plaintiffs patented ZETA product is approximately 4 cm.

192. The distance from the inner side of the foot bath to the first curvilinearchange in thickness of the accused TOUSPA M2 product is also approximately 4

cm.

193. The width of the indentation for the spray nozzle on the rim of thefoot bath of Plaintiffs patented ZETA product is approximately 6 cm.

194. The width of the indentation for the spray nozzle on the rim of thefoot bath of the accused TOUSPA M2 product is also approximately 6 cm.

195. The distance from the bottom edge of the base to the first curvilinearchange in thickness, near the front, of Plaintiffs patented ZETA product is

approximately 13 cm.

196. The distance from the bottom edge of the base to the first curvilinearchange in thickness, near the front, of the accused TOUSPA M2 product is also

approximately 13 cm.


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197. The width of the foot rest of Plaintiffs patented ZETA product isapproximately 14.5 cm.

198. The width of the foot rest of the accused TOUSPA M2 product isalso approximately 14.5 cm.

199. The overall height, length, and curved shape of the foot rest of theaccused TOUSPA M2 product is identical to the overall height, length, and

curved shape of the foot rest of Plaintiffs patented ZETA product.

200. As a direct and proximate result of the Defendants infringement,Plaintiff SALON SPA SUPPLY LLC has been and is continuing to be irreparably

harmed, damaged, and injured, and will continue to sustain harm, damage, and

injury unless Defendants conduct is restrained by this Court.

WHEREFORE, Plaintiff respectfully requests that this Court enter judgmentin its favor and against Defendants on the Complaint and enter an order as follows:

A. Finding that Defendants have infringed the 858 Patent; andB. Ordering Defendants to pay compensatory damages to Plaintiff in an

amount at least equal to, at Plaintiffs option, either: (i) Plaintiffs lost profits, butin no event less than a reasonable royalty, plus costs and expenses, together withpre-judgment and post-judgment interest at the maximum rate allowable by law,

according to proof at trial, as provided under 35 U.S.C. 284, or (ii) Defendantstotal profits, plus costs and expenses, together with pre-judgment andpost-judgment interest at the maximum rate allowable by law, according to proof attrial, as provided under 35 U.S.C. 289; and


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C. Awarding to Plaintiff enhanced damages resulting from the knowing,deliberate, and willful nature of Defendants prohibited conduct, undertaken with

actual knowledge by each Defendant, as provided under 35 U.S.C. 284; and

D. Finding that this is an exceptional case within the meaning of 35U.S.C. 285 and awarding to Plaintiff its reasonable attorneys fees; and

E. Entering a permanent injunction enjoining and restraining Defendants,and all those acting in concert with them, from engaging in conduct that infringes,induces infringement, or contributes to the infringement of Plaintiffs exclusiverights in the 858 Patent; and

F. Directing each Defendant to file with the Court and serve on Plaintiff,within thirty (30) days after entry of any injunction (preliminary, interlocutory,and/or final) a report in writing under oath setting forth in detail the manner andform in which each Defendant has complied with the injunction; and

G. Granting such other and further relief as this Court deems just andproper.

COUNT 6

UNFAIR COMPETITION AND FALSE DESIGNATION OFORIGIN, IN VIOLATION OF THE LANHAM ACT



202. By selling products that copy Plaintiffs products and Plaintiffsunique patented design, Defendants have misappropriated Plaintiffs trade dress

and falsely represented the origin of the accused TOUSPA Products. Thus,

Defendants conduct of importing, making, using, offering to sell, and/or selling


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the accused TOUSPA Products is causing and is likely to continue to cause

confusion, deception, and mistake by creating the false and misleading impression

that Defendants products are affiliated, connected, or associated with Plaintiff or

have the sponsorship, endorsement, or approval of Plaintiff, all in violation of 15

U.S.C. 1125(a).

203. From at least as early as January of 2010 and continuing to thepresent, Plaintiff SALON SPA SUPPLY LLC has been selling its patented base

and foot bath product, including the ZETA model, as well as its ZETA foot bath

product by itself and with other bases.

204. From at least as early as January of 2010 and continuing to thepresent, Plaintiff SALON SPA SUPPLY LLC has devoted substantial time,

money, and effort promoting and marketing its patented base and foot bath

product, as well as its ZETA foot bath product by itself and with other bases.

205. Because of Plaintiffs substantial, continuous, and exclusive effortspromoting, advertising, marketing, and selling its patented base and foot bath

product, including the ZETA model, as well as its foot bath product alone and with

other bases, Plaintiff SALON SPA SUPPLY LLC has acquired exclusive and

enforceable trade dress rights in (1) Plaintiffs patented base and foot bath product,


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including the ZETA model, and (2) Plaintiffs ZETA foot bath product, by itself

and with any base.

206. Plaintiffs trade dress is strong and well known to the public as anexclusive source identifier of Plaintiffs unique and attractive designs, as well as

Plaintiffs high-quality and reliable products incorporating those designs, including

the ZETA model. Accordingly, Plaintiff has developed valuable good will as well

as strong common law trade dress rights through the United States, including

Georgia, in its well-known and distinctive trade dress.

207. Defendants conduct, performed with actual knowledge of Plaintiffsexclusive rights, demonstrates an intentional, willful, and bad-faith intent to

(1) trade on the goodwill of Plaintiffs distinctive trade dress; and (2) cause

confusion, deception, and mistake in the minds of Plaintiffs customers and

potential customers by implying a non-existent affiliation or relationship between

Defendants and Plaintiff, to the great and irreparable injury of Plaintiff.

Defendants have acted knowingly and have been unjustly enriched by such

conduct.

208. Because Defendants unfair competition is causing and is likely tocontinue causing substantial injury to the public and to Plaintiff, Plaintiff is entitled

to injunctive relief and is entitled to recover Defendants trebled profits associated


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with the infringement, Plaintiffs damages, and Plaintiffs reasonable attorneys

fees in accordance with 15 U.S.C. 1116 and 1117.

WHEREFORE, Plaintiff, SALON SPA SUPPLY LLC, respectfully requeststhat this Court enter judgment in its favor and against Defendants on the Complaintand enter an order as follows:

A. Enjoining and restraining Defendants and all their subsidiaries,divisions, agents, officers, employees, representatives, successors, assigns,attorneys, and all other persons acting for, with, by, through, or under authorityfrom Defendants, from

(1) using any copy, reproduction, or colorable imitation orsimulation of (a) Plaintiffs patented base and foot bath products,including the ZETA model, or (b) Plaintiffs ZETA foot bath productby itself or in combination with any base, in connection with anygoods or services offered by Defendants; and

(2) using any trademark, service mark, trade dress, name,logo, or source designation of any kind that is a copy, reproduction, orcolorable imitation or simulation of, or confusingly similar to, or inany way similar to Plaintiffs trademarks, service marks, trade dresselements, names, or logos; and

(3) engaging in any other conduct that will cause, or is likelyto cause, confusion, mistake, deception, or public misunderstanding asto the affiliation, connection, association, origin, sponsorship orapproval of Defendants goods or services with or by Plaintiff; and

(4) otherwise infringing upon Plaintiffs distinctive trade

dress, or unfairly competing with Plaintiff in any manner whatsoever.

B. Compelling Defendants to account to Plaintiff for any and all profitsderived by Defendants through their infringement, and to pay Plaintiff for alldamage caused, including pre-judgment interest at the maximum rate allowable bylaw, under 15 U.S.C. 1117(a) and under the common law; and


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C. Awarding treble damages to Plaintiff in the amount of three times theprofits resulting from Defendants infringement, unfair competition, and false

designation of origin of services; and

D. Awarding statutory damages to Plaintiff, if it so elects; and

E. Awarding to Plaintiff punitive damages in an amount such as theCourt shall find to be just, according to the willful and deliberate infringement bythe Defendants; and

F. Awarding to Plaintiff all costs of this action and all its reasonableattorneys fees in accordance with 15 U.S.C. 1117(a); and

G. Ordering Defendants to deliver-up for safekeeping during thependency of this civil action, and for destruction upon entry of judgment:

(1) all products, including but not limited to the accusedTOUSPA products identified herein, that are confusingly similar to(a) Plaintiffs patented base and foot bath products, including theZETA model, or (b) Plaintiffs ZETA foot bath product by itself or incombination with any base; and

(2) all tooling, plates, molds, and other materials that arespecifically designed to manufacture products that are confusinglysimilar to (a) Plaintiffs patented base and foot bath products,including the ZETA model, or (b) Plaintiffs ZETA foot bath productby itself or in combination with any base; and

(3) any and all other materials that are causing or are likelyto continue to cause confusion, deception, and mistake by creating thefalse and misleading impression that Defendants products areaffiliated, connected, or associated with Plaintiff or have thesponsorship, endorsement, or approval of Plaintiff.

H. Directing each Defendant to file with the Court and serve on Plaintiff,within thirty (30) days after entry of any injunction (preliminary, interlocutory,and/or final) a report in writing under oath setting forth in detail the manner andform in which each Defendant has complied with the injunction; and


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I. Granting such other and further relief as this Court deems just andproper.

COUNT 7

UNFAIR COMPETITION AND DECEPTIVE TRADE

PRACTICES, IN VIOLATION OF THE GEORGIA UNIFORM

DECEPTIVE TRADE PRACTICES ACT



210. The foregoing willful and deliberate acts of Defendants constituteunfair competition and deceptive trade practices in Georgia, because Defendants

have caused a likelihood of confusion or of misunderstanding as to the source,

sponsorship, approval, or certificate of goods, in violation of O.C.G.A. 10-1-

372(a)(2).


have caused a likelihood of confusion or of misunderstanding as to the affiliation,

connection, or association with or certification by another, in violation of O.C.G.A.

10-1-372(a)(3).



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have represented that goods have the sponsorship, approval, characteristics,

ingredients, uses, benefit, or qualities that they do not have, in violation of

O.C.G.A. 10-1-372(a)(5).


have engaged in other conduct that creates a likelihood of confusion or

misunderstanding, in violation of O.C.G.A. 10-1-372(a)(12).

214. As a direct and proximate result of the Defendants unlawful andunfairly competitive conduct, Plaintiff SALON SPA SUPPLY LLC has been and

is continuing to be irreparably harmed, damaged, and injured, and will continue to

sustain harm, damage, and injury unless Defendants conduct is restrained by this

Court.

215. Defendants have intentionally and willfully engaged in tradepractices, each of them knowing such trade practices to be deceptive.

WHEREFORE, Plaintiff, SALON SPA SUPPLY LLC, respectfully requeststhat this Court enter judgment in its favor and against Defendants on the Complaintand enter an order as follows:

A. Ordering Defendants to forever cease its unfair competition activityand to otherwise comply with all injunctive relief, temporary and permanent,granted by this Court.

B. Ordering Defendants to pay all costs of this action, pursuant toO.C.G.A. 10-1-373(b)(2).


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C. Ordering Defendants to pay all of Plaintiffs reasonable attorneysfees, pursuant to O.C.G.A. 10-1-373(b)(2).


COUNT 8

PLAINTIFF IS ENTITLED TO INJUNCTIVE RELIEF


216.

Plaintiff repeats and re-alleges the allegations contained in all the

preceding paragraphs, as if fully set forth herein.

217. In accordance with the Courts authority to grant injunctive relief,Plaintiff SALON SPA SUPPLY LLC seeks the issuance of preliminary and

permanent injunctions upon hearing and trial, respectively.

218. Specifically, Plaintiff requests that the Court enter preliminary andpermanent injunctions against Defendants, TOUSPA, LLC, TONY HOANG, and

TRAN PHAM, and all those acting in concert with them, (1) enjoining them from

using or disclosing Plaintiffs Confidential Information, and (2) ordering them to

return all of Plaintiffs company assets and data.

219. Plaintiff is entitled to injunctive relief because Defendants arecurrently using anddisclosing Plaintiffs Confidential Information, Defendants

have refused to return Plaintiffs company assets and data, and Defendants are


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using Plaintiffs information, assets, and data to knowingly and willfully infringe

the 858 Patent. Plaintiff will be further and irreparably harmed if this conduct is

allowed to continue. Defendants bad faith conduct, as set forth herein,

demonstrates that Defendants will continue their unlawful and infringing conduct

unless enjoined by this Court.

220. Injunctive relief is an appropriate remedy under the circumstancesbecause money damages will be inadequate to compensate Plaintiff for the unfair

advantage gained by Defendants (and Plaintiffs competitors) as a result of

Defendants continuing use and disclosure to others of Plaintiffs Confidential

Information, Defendants continuing use of Plaintiffs company assets and data,

and Defendants continuing and willful infringement of Plaintiffs exclusive patent

rights.

221. Defendant TONY HOANG agreed that money damages would beinadequate. Specifically, on page 4 of the Agreement:

The Seller [TONY HOANG] further agrees that the remedy atlaw for breach of any of the above agreements is inadequate .Exhibit A, The Agreement, page 4.

222. Moreover, Injunctive relief is an appropriate remedy under thecircumstances because Defendant TONY HOANG agreed that, in the event of his


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breach or a threatened breach, Plaintiff would be entitled to immediate injunctive

relief without proof of harm. Specifically, on page 4 of the Agreement:

The Seller [TONY HOANG] further agrees that the remedy atlaw for breach of any of the above agreements is inadequate and thatSSS, LLC [SALON SPA SUPPLY, LLC] shall be entitled, in additionto other such remedies as it may have, to injunctive relief for anybreach or threatened breach of this agreement without proof of anyactual damages that may have been or may be caused to the Company[SALON SPA SUPPLY, LLC] by such breach or threatened breach.Exhibit A, The Agreement, page 4 (underlining added).

223. Plaintiff is entitled to injunctive relief because Plaintiff has noadequate remedy at law.

224. Plaintiff is entitled to injunctive relief because there is a substantiallikelihood of Plaintiffs success on the merits.

225. Defendant TONY HOANG already signed the Agreement withPlaintiff, promising that he would not use or disclose Plaintiffs Confidential

Information without prior written authorization, and that he would return Plaintiffs

company assets and data.

226. Defendant TONY HOANG also acknowledged his understanding thatany breach or threatened breach of any obligation in the Agreement would subject

him to an immediate injunction.

227. In direct violation of his Agreement, Defendant TONY HOANG,individually and in concert with others, has been and continues using and


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disclosing to others Plaintiffs Confidential Information, and has been and

continues keeping and using Plaintiffs company assets and data.

228. Defendants have used and are continuing to use Plaintiffsinformation, assets, and data to start and maintain their own business, TOUSPA,

LLC, for the purpose of competing unfairly with Plaintiff.

229. Moreover, Defendants have used and are continuing to use Plaintiffsinformation, assets, and data for the purpose of knowingly and willfully infringing

Plaintiffs patent rights.

230. Plaintiff is entitled to injunctive relief because the risk of continuingharm to Plaintiff outweighs any possible harm that injunctive relief might inflict on

Defendants. Plaintiff will be harmed because money damages will be inadequate

to compensate Plaintiff for the unfair advantage gained by Defendants (and other

competitors) because of Defendants unlawful conduct and willful patent

infringement. The issuance of an injunction poses no countervailing risk of harm

to Defendants.

231. Plaintiff is entitled to injunctive relief because the public interest willnot be disserved or adversely affected by granting the requested relief. To the

contrary, the public interest will be well served by an injunction at least because

Defendants infringing products are causing consumer confusion among the public,


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and are likely to continue causing confusion, deception and mistake among

members of the consuming public unless enjoined by this Court.

232. Plaintiff is willing in principle to post a bond, but requests that anybond imposed by the Court be nominal in light of the absence of a risk of harm to

Defendants from the issuance of a preliminary injunctions.

WHEREFORE, Plaintiff, SALON SPA SUPPLY LLC, respectfully requeststhat this Court issue a preliminary injunction as follows:

A. Enjoining Defendant from using or disclosing Plaintiffs ConfidentialInformation;

B. Ordering Defendants to return all of Plaintiffs company assets anddata, including any and all copies of such information;

C. Ordering Defendants to produce for immediate inspection allcomputers, electronic media, and other storage devices that are capable of storingall or part of the Plaintiffs company assets and data;

D. Ordering Defendants, after inspection and return to Plaintiff, to deleteall of Plaintiffs company assets and data from their computers, electronic media,

salon spa supply v. touspa et. al

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