IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.

1:12-cv-01992 WINE MASTER CELLARS, LLLP, a Colorado limited liability limited partnership, Plaintiff, v. APEX WINE CELLARS AND SAUNAS, INC., a California corporation, COSTCO WHOLESALE CORPORATION, a Washington corporation, EPICUREANIST LLC, a California limited liability company, and VINOTEMP INTERNATIONAL CORPORATION, a California corporation, Defendants. COMPLAINT AND JURY DEMAND

Plaintiff Wine Master Cellars, LLLP ("Wine Master" or "Plaintiff") for its Complaint against Defendants Apex Wine Cellars and Saunas, Inc. (Apex), Costco Wholesale Corporation (Costco), Epicureanist LLC (Epicureanist), and Vinotemp International Corporation ("Vinotemp") (collectively "Defendants"), alleges as follows: I. 1. NATURE OF THE ACTION

This is an action for patent infringement arising under the Patent Laws of the

United States, 35 U.S.C. 101, et seq. 2. In this action, Wine Master seeks injunctive and monetary relief for Defendants

infringement of Wine Masters U.S. Patent No. 8,231,015 (the 015 Patent).

II. 3.

THE PARTIES

Wine Master is a limited liability limited partnership organized under the laws of

the State of Colorado with its principal place of business at 10645 East 47th Avenue, Denver, Colorado 80239. 4. Upon information and belief, Apex is a California corporation with a principal

place of business at 17631 South Susana Road, Rancho Dominguez, California 90221. 5. Upon information and belief, Costco is a Washington Corporation with a

principal place of business at 999 Lake Drive, Issaquah, Washington 98027. 6. Upon information and belief, Epicureanist is a California limited liability

company with a principal place of business at 16782 Von Karman Avenue, Suite 15, Irvine, California 92606. 7. Upon information and belief, Vinotemp is a California corporation with a

principal place of business at 16782 Von Karman Avenue, Suite 15, Irvine, CA 92606. III. 8. JURISDICTION AND VENUE

The Court has original subject matter jurisdiction over the asserted claims

pursuant to 28 U.S.C. 1331 and 1338. 9. Apex is subject to personal jurisdiction in this judicial district because it operates

a web site hosted at the domain <www.apexwineracks.com> soliciting sales from Internet users in this judicial district of, among other things, wine racks that infringe the 015 Patent. Apex has thus committed tortious, infringing acts in this judicial district, which have damaged Wine Master in this judicial district and give rise to Wine Masters claims against Apex.

10.

Costco is subject to general personal jurisdiction in this judicial district because it

is registered to do business in Colorado, maintains a registered agent in Colorado, and operates numerous retail warehouses in Colorado. 11. Epicureanist is subject to personal jurisdiction in this judicial district because it

operates a web site hosted at the domain <www.epicureanist.com> soliciting sales from Internet users in this judicial district of, among other things, wine racks that infringe the 015 Patent. Epicureanist has thus committed tortious, infringing acts in this judicial district, which have damaged Wine Master in this judicial district and give rise to Wine Masters claims against Epicureanist. 12. Vinotemp is subject to personal jurisdiction in this judicial district because it

purposefully directs its activitieswhich give rise to Wine Masters claims against Vinotemp at residents of this judicial district. More specifically, upon information and belief, Vinotemp makes, uses, sells, and/or offers for sale in the United States, and/or imports into the United States, infringing wine racks that it introduces into the stream of commerce with knowledge and/or intent that the infringing wine racks will enter this judicial district. Upon information and belief, infringing wine racks made, used, sold, offered for sale, and/or imported by Vinotemp are used, sold, and/or offered for sale in this judicial district by Apex (including on Apexs web site, <www.apexwineracks.com>), Costco (including on Costcos web site, <www.costco.com>), Epicureanist (including on Epicureanists web site, <www.epicureanist.com>), and elsewhere. These activities have damaged Wine Master in this judicial district and give rise to Wine Masters claims against Vinotemp. 13. Venue is proper within this judicial district pursuant to 28 U.S.C. 1391(a) and

1400(b), because Defendants are subject to personal jurisdiction in this judicial district, and at 3

least a part of the events giving rise to the asserted claims and damages resulting therefrom occurred in this judicial district. IV. A. The 015 Patent 14. The 015 Patent, entitled WINE RACK, was duly and legally issued by the GENERAL ALLEGATIONS

United States Patent and Trademark Office just after 12:00 a.m. EDT on July 31, 2012. See Encore Wire Corp. v. Southwire Co., No. 3:10-cv-86, 2011 U.S. Dist. LEXIS 22073 (N.D. Ga. Mar. 4, 2011) (explaining that patents issue at just after 12:00 a.m. EDT on the issue date); see also Exxon Chemical Patents, Inc. v. Lubrizol Corp., 935 F.2d 1263 (Fed. Cir. 1991). 15. The 015 Patent includes one independent claim and four dependent claims, all

directed to a wine rack. 16. Wine Master is the owner of all rights, title and interest in and to the 015 Patent,

and is entitled to sue for infringement thereof. B. Background 17. On April 28, 2009, Wine Master filed in the U.S. District Court for the District of

Colorado a Complaint accusing Vinotemp of infringing Wine Masters U.S. Patent No. 6,991,117 (the '117 Patent). The Complaint was given Civil Action No. 09-cv-00972MSK ("Colorado Civil Action"). 18. Effective on May 30, 2009, Wine Master and Vinotemp settled the Colorado Civil

Action by entering into a Settlement Agreement. 19. After receiving the signed Settlement Agreement from Vinotemp, Wine Master

filed a Voluntary Dismissal of the Colorado Civil Action without prejudice on June 8, 2009 and the Colorado Civil Action was subsequently terminated by the Court. 4

20.

In February 2011, Vinotemp communicated to Wine Master that it would no

longer abide by the terms of the Settlement Agreement. 21. On February 22, 2011, without any warning to Wine Master, Vinotemp filed, in

the Central District of California, Civil Action No. 11-01543 seeking a declaratory judgment of non-infringement and invalidity of, inter alia, the '117 Patent. 22. Because Vinotemp is aware of the issuance of the 015 Patent, and in view of

Vinotemps prior efforts to deny Wine Master its choice of forum, Wine Master necessarily filed the present Complaint and Jury Demand immediately upon issuance of the 015 Patent. Specifically, Wine Master filed this Complaint just after 12:00 a.m. EDT on July 31, 2012 (i.e. just after 10:00 p.m. MDT on July 30, 2012). C. The Relationship Among Defendants Apex, Epicureanist, and Vinotemp 23. Upon information and belief, in October 2010, Vinotemp acquired the assets of

now-defunct Apex Saunas and Wine Cellars to form Apex. India Hynes, the President of Vinotemp, is also the President and Chief Executive Officer of Apex. See Vinotemp Press Release, Vinotemp International Acquires Seattle Based Wine Storage Giant to Create: Apex Wine Cellars and Saunas, Oct. 22, 2010, available at <http://www.vinotemp.com/ Details.aspx?articleID=120>. 24. Watch: Ms. Hynes also launched Epicureanist in 2010. See OCMetro, 20 Women to India Hynes, Mar. 1, 2011, available at <http://ocmetro.com/t-

00CoverStory_20_Women_to_Watch06India_Hynes0311.aspx>, and Vinotemp Press Release, President of Vinotemp International Named as Finalist in 9th Annual Stevie Award for Women in Business, Oct. 14, 2011, available at <http://www.vinotemp.com/

Details.aspx?articleID=159>.

Ms. Hynes is the President and Chief Executive Officer of 5

Epicureanist as well. See Epicureanist News, India Hynes is one of 20 Women to Watch, Mar. 1, 2011, available at <http://www.epicureanist.com/Details.aspx?articleID=41>. 25. Apex sells both Vinotemp and Epicureanist products on its website. See

<http://www.apexwineracks.com/Search.aspx?query=vinotemp>;

<http://www.apexwineracks.

com/Search.aspx?query=epicureanist>. Epicureanist sells Vinotemp products on its website, which also has a link to Vinotemps website. Search.aspx?query=vinotemp>. See <http://www.epicureanist.com/ See

Vinotemp sells Epicureanist products on its website.

<http://www.vinotemp.com/Search.aspx?query=epicureanist>. 26. offices at Upon information and belief, Apex, Epicureanist, and Vinotemp share corporate 16782 Von Karman Ave., Ste. 15, Irvine, CA 92606. See

<http://www.apexwineracks.com/Contact-Us.aspx>; Contact.aspx>; <http://www.vinotemp.com/Contact.aspx>. 27. Upon information and belief, Apex and

<http://www.epicureanist.com/

Vinotemp

also

share

the

factory/warehouse located at 17621/17631 S. Susana Rd., Rancho Dominguez, CA 90221. See <http://www.apexwineracks.com/Contact-Us.aspx>; <http://www.vinotemp.com/Contact.aspx>. D. Defendants Infringing Conduct 28. 29. In general, the 015 Patent covers wine racks. Upon information and belief, Apex has made, used, sold, and/or offered for sale in

the United Statesincluding, but not limited to, in Coloradoand/or imported into the United States, the Epicureanist 18 Bottle Wire Wine Rack and Epicureanist 27 Bottle Wire Wine Rack, each of which infringes one or more claims of the 015 Patent. See

<http://www.apexwineracks.com/Search.aspx?query=epicureanist>.

30.

Apex has had actual and/or constructive notice of Wine Masters rights under the

015 Patent because India Hynes, the President and CEO of both Vinotemp and Apex, learned of the 015 Patent through pending litigation between Wine Master and Vinotemp in the Central District of California. Despite such notice, Apex continues to make, use, sell, and/or offer for sale in the United States the Epicureanist 18-bottle and 27-bottle wine racks identified in Paragraph 29 above. 31. United States. 32. Upon information and belief, Costco has used, sold, and/or offered for sale in the Apex competes with Wine Master in this judicial district and elsewhere in the

United Statesincluding, but not limited to, in Coloradoand/or imported into the United States the Apex 27 bottle Metal Wine Rack, which infringes one or more claims of the 015 Patent. See <http://www.costco.com/Browse/Product.aspx?Prodid=11767668&search=apex&

Mo=3&cm_re=1_en-_-Top_Left_Nav-_-Top_search&lang=en-US&Nr=P_CatalogName:BC& Sp=S&N=5000043&whse=BC&Dx=mode+matchallpartial&Ntk=Text_Search&Dr=P_Catalog Name:BC&Ne=4000000&D=apex&Ntt=apex&No=3&Ntx=mode+matchallpartial&Nty=1&top nav=&s=1>. 33. United States. 34. Upon information and belief, Epicureanist has made, used, sold, and/or offered for Costco competes with Wine Master in this judicial district and elsewhere in the

sale in the United Statesincluding, but not limited to, in Coloradoand/or imported into the United States, the 18 Bottle Epic Metal Wine Rack and the 27 Bottle Epic Metal Wine Rack, each of which infringes one or more claims of the 015 Patent. See

<http://www.epicureanist.com/Search.aspx?query=wine%20rack>. 7

35.

Epicureanist has had actual and/or constructive notice of Wine Masters rights

under the 015 Patent because India Hynes, who is, upon information and belief, an officer of Epicureanist and who is the President and CEO of Vinotemp, learned of the 015 Patent through pending litigation between Wine Master and Vinotemp in the Central District of California. Despite such notice, Epicureanist continues to make, use, sell, and/or offer for sale in the United States the Epic 18-bottle and 27-bottle wine racks identified in Paragraph 34 above. 36. Epicureanist competes with Wine Master in this judicial district and elsewhere in

the United States. 37. Upon information and belief, Vinotemp has made, used, sold, and/or offered for

sale in the United Statesincluding, but not limited to, in Coloradoand/or imported into the United States, the Vinotemp EP-WIRE2B 18 Bottle Epic Metal Wine Rack and the Vinotemp EP-WIRE3B 27 Bottle Epic Metal Wine Rack, each of which infringes one or more claims of the 015 Patent, and each of which is offered for sale on at least one third partys web site. See <http://search1.unbeatablesale.com/?vno=96&D=vinotemp+wine+rack&Nty=1&N=0&Dk=0& Ntt=vinotemp+wine+rack>. Upon information and belief, Vinotemp has also made, used, sold,

and/or offered for sale in the United States, and/or imported into the United States, the wine racks identified in Paragraphs 29, 32, and 34 above. 38. Vinotemp has had actual notice of Wine Masters rights under the 015 Patent

because India Hynes, the President and CEO of Vinotemp, learned of the 015 Patent through pending litigation between Wine Master and Vinotemp in the Central District of California. Despite such notice, and upon information and belief, Vinotemp continues to make, use, sell, and/or offer for sale in the United States the wine racks identified and/or referred to in Paragraph 37 above. 8

39. United States.

Vinotemp competes with Wine Master in this judicial district and elsewhere in the

V. FIRST CLAIM FOR RELIEF (Infringement of the 015 Patent) 40. Wine Master realleges the allegations contained in the foregoing paragraphs as if

fully set forth herein. 41. Upon information and belief, Defendants have infringed, induced infringement of,

and/or contributed to infringement of the 015 Patent in violation of 35 U.S.C. 271 by making, using, selling, and/or offering to sell in the United States, and/or importing into the United States, products that are covered by at least one claim of the 015 Patent, including wine racks identified herein. 42. Defendants Apex, Epicureanist, and Vinotemps continued infringement of the

015 Patent is willful and in wanton disregard of Wine Masters patent rights. 43. Defendants continued infringement of the 015 Patent has damaged and will

continue to damage Wine Master unless Defendants are enjoined by this Court. VI. PRAYER FOR RELIEF WHEREFORE, Wine Master prays for judgment in its favor and against Defendants as follows: A. That Defendants, their officers, directors, agents, servants, employees, privies,

representatives, attorneys, parent and subsidiary corporations or other related entities, successors, assigns, licensees, retail distributors, and all persons in active concert or participation with Defendants, be temporarily, preliminarily, and permanently enjoined from directly

infringing, inducing others to infringe, and/or contributing to the infringement of the 015 Patent; B. That Wine Master be awarded damages in an amount to be determined at trial for

Defendants infringing activities, which are at least a reasonable royalty; C. That Wine Master be awarded treble damages by reason of the willful, wanton,

and deliberate nature of Defendants Apex, Epicureanist, and Vinotemps infringement pursuant to 35 U.S.C. 284; D. That Wine Master be awarded its attorneys fees as this is an exceptional case

under 35 U.S.C. 285; E. F. The Wine Master be awarded its pre-judgment and post-judgment interest; That Wine Master be awarded costs and expenses of suit, including expert

witness fees; and G. That Wine Master be awarded such other and further relief as the Court deems

appropriate and just. VII. JURY DEMAND Wine Master demands a trial by jury of all issues so triable in this action. Respectfully submitted, Dated: July 30, 2012 By: s/ John R. Posthumus John R. Posthumus jposthumus@sheridanross.com SHERIDAN ROSS P.C. 1560 Broadway, Suite 1200 Denver, Colorado 80202 (303) 863-9700 (303) 863-0223 facsimile litigation@sheridanross.com ATTORNEYS FOR PLAINTIFF 10