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ORIGINAt
MICHAEL E. DERGOSITS (State Bar No. 118206)
IGOR SHOIKET (State Bar No 190066)
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2 DERGOSITS & NOAH LLP
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Three Embarcadero Center, Suite 410
San Francisco, CA 94111
Telephone (415) 705-6377
Facsimile ( 415) 705-6383
Email. mdergosits@dergnoah.com
Email: ishoiket@dergnoah com
torneys for Plaintiff
MANGEAR, INC
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
HUMAN GEAR, INC., a California corporation,
Plaintiff,
vs.
STANCE BEAUTY LABS, LLC ; a
Connecticut corporation; BIG LOTS STORES,
INC., an Ohio corporation,
(}:ivil !," .: -
COMPLAINT FOR il TQNT
) INFRINGEMENT AND TRADE DRESS
) INFRINGEMENT
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) JURY TRIAL DEMAND
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COI>.lPLAJNT FOR DESIO!\ P.-\TEXT 11\FRI'IGHIE'IT _".."'D TRADE DRESS [\'FRI:O.:GE:\IE:-.JT
\
PlaintiffHumangear, Inc. ("Humangear"}, by and through its attorneys, complains and alleges as
2 follows against Defendants Stance Beauty Labs, L.LC. ("Stance") and Big Lots Stores, Inc. ("Big
1 Lots") (collectively, "Defendants").
4 THE NATURE OF THE ACTION
5 I This is an action for infringement ofHumangear's trade dress and design patent rights.
6 Humangear is informed and believes, and on that basis alleges, that Stance is presently manufacturing,
7 importing into the United States, offering for saJe and/or selling an imitation ofHumangear's GoToob
s products under the name of"Travel Bottles." Humangear is also informed and believes, and on that
9 basis alleges, that Big Lots is offering for sale and/or selling Stance's imitation ofHumangear's GoToob
10 products under the name of"Squeezees." Neither Stance nor Big Lots are connected or affiliated with
11 Humangear, or authorized by Humangear in any way to sell the "Travel Bottles" or the "Squeezees"
12 products.
13 2. Picture No. 1 shows a side-by-side comparison of the front view ofHumangear's 3 oz.
14 GoToobs and packaging (the four containers on the right side of the picture) and the front view of
15 Stance's "Travel Bottles" and packaging (the four containers on the left side of the picture). Picture No.
16 2 shows a side-by-side comparison of the back view ofHumangear' 3 oz. GoToobs and packaging (the
17 four containers on the right side of the picture) and the back view of Stance's "Travel Bottles" and
18 (the four containers on the left side of the pictur,e)
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27 3. Picture No.3 shows a side-by-side comparison of the front view ofHumangear's 3 oz.
28 GoToobs (the four containers on the right side ofthe picture) and the front view of Stance's "Travel
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COMPLAINT FOR DESIGN PATENT INFRINGEMENT AND TRADE DRESS P.-<FRINGEMENT

Bottles" (the four containers on the left side of the picture). Picture No.4 shows a side-by-side
2 comparison of the front view ofHumangear's 2 oz. GoToobs (the four containers on the right side of the
3 picture) and the front view of Stance's "Travel Bottles" (the four containers on the left side of the
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COMPLAINT !'OR DESIGN PATENT INFRINGEMENT AND TRADE DRESS N"FRINGEMENT
Picture No. 3
Pic1:ure No. 4

4. Picture No.5 shows a sideby-side comparison of the rear view ofHumangear's 3 oz.
2 GoToobs (the four containers on the right side of the picture) and the rear view of Stance's "Travel
3 Bottles" (the four containers on the left side of the picture). Picture No.6 shows a side-by-side
4 comparison of the rear view ofHumangear's 2 oz. GoToobs (the four containers on the right side of the
5 picture) and the rear view of Stance's "Travel Bottles" (the four containers on the left side of the
o picture).
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COMPLAINT FOR DESIGN PATENT INFRINGEME!'I.'T AND TRADE DRESS
5. Picture No.7 shows a side-by-side comparison of the side view ofHumangear's 3 oz.
2 GoToobs (the four containers on the right side of the picture) and the side view of Stance's "Travel
3 Bottles" (the four containers on the left side of the picture). Picture No.8 shows a side-by-side
4 comparison of the side view ofHumangear's 2 oz. GoToobs (the four containers on the right side of the
5 picture) and the side view of Stance's "Travel Bottles" (the four containers on the left side of the
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!Picture No 7
IPkture No. 8
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COMPLAINT FOR DESIGN PATENT INFRINGEMENT AND TRADE DRESS lSFRTh"GEMENT
6. Picture No.9 shows a side-by-side comparison of the top view ofHumangear's 3 oz.
2 GoToobs (the four containers on the bottom of the picture) and the top view of Stance's "Travel Bottles"
3 (the four containers at the top of the picture). Picture No. 10 shows a side-by-side comparison of the top
4 view ofHumangear's 2 oz. GoToobs (the four containers on the bottom of the picture) and the top view
5 four containers at the top of the picture).
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COMPLAINT FOR DESIGN PATENT INFRINGEMENT M..-DTRADE DRESS P.o/FRINGEMENT
Pic1ture No 9
Picture No. 10
7. Picture Nos. 11, 12 and 13 show a comparison of the front view of Big Lots' "Squeezees"
2 (Picture 11) and the front view ofHumangear's 2 oz. GoToobs (Picture No. 12) and Humangear's 3 oz.
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PictureNo.ll
8.
Humangear was founded in 2007 with a mission to design and develop innovative
products as "real gear for real humans," including the GoToob travel containers. The design elements o
the GoToob comprise a non-functional aesthetic ("the GoToob trade dress"), including a tapered
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COMPLAINT FOR DESIGN PATENT INFRINGEMENT AND TRADE DRESS DJFRINGEMENT
cylindrical shape with a circular cross-section at the bottom end ofthe container and an oval cross-
2 section at the top of the container. In the frontal view of the GoToob, the edges flare out from the
3 bottom end to the top end. In the side view of the GoToob, the edges taper in from the bottom end to the
-1- top end. The distinctive and non-functional design elements of the GoToob trade dress also include
5 clear, light blue, light green and red colors.
6 9. Humangear has also protected its innovative product designs through design patents duly
7 issued by the United States Patent and Trademark Office. Humangear owns all right, title, and interest
8 in and to the asserted United States Design Patent No. D612,263, titled "Dispensing Container," issued
9 on March 23, 20 I 0; United States Design Patent No. D612,264, titled "Dispensing Container," issued on
10 March 23, 2010; and United States Design Patent No. D612,741, titled "Dispensing Container," issued
11 on March 30, 2010.
12 10. The GoToob innovative and distinctive patented design received numerous accolades
13 from industry and media sources and the public. Humangear was awarded the "Buzz Award" at the
14 TGA Travel Goods Show, the leading travel products trade show in the United States, in 2009. This
15 award is given to the most talked about, attention-getting new product presented at the show, based on
16 the votes by the attending retailers and media.
17 II. The GoToob was featured on the New York Times website and in the New York Times
us article "How the Tough Get Going: Silicon Valley Travel Tips," published on or about July 12, 2012.
19 The GoToob was also featured in the SNEWS article "Humangear GoToob travel container" published
20 on or about December 28, 2009, and on the San Francisco Chronicle's website SF Gate in an article
21 "GoToobs for carry-on liquids" published on or about February 20, 2011 The GoToob also received
22 numerous positive reviews and praises from consumers on the amazon. com and rei.com websites,
23 among others.
2--1- 12. Stance has misappropriated Humangear's patented design and trade dress. Humangear is
25 informed and believes, and on that basis alleges, that instead of pursuing independent product design
26 and development, Stance has chosen to copy Humangear's innovative designs, in violation of
27 Humangear's valuable intellectual property rights. Stance's actions are all the more culpable because, in
28 light of many options available to manufacture a plastic travel container, there is no need for Stance to
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COMPL\.INT FOR DES.IGN ?.-\TE:-<T NFR.Il\"GEMENT AND TRA.DI-, DHFSS l"lFRJ'>;(lE\1F.I\T
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slavishly imitate the Humangear trade dress and infringe Humangear's design patents to sell its products
in the United States.
13. Defendants' actions are likely to cause confusion and to deceive consumers and public
regarding the source of the products. By this action, Humangear seeks to put a stop to Defendants'
illegal conduct and obtain compensation for the violations that have occurred so far_
THE PARTIES
14. Humangear is a California corporation having its principal place ofbusiness at 745A
Clementina Street, San Francisco, California 94103.
15_ Humangear is informed and believes, and on that basis alleges, that Stance is a
Connecticut corporation with its principal place of business at 1100 Summer Street, Stamford,
Connecticut 06905.
16. Humangear is informed and believes, and on that basis alleges, that Big Lots is an Ohio
corporation with its principal place of business at 300 Phillipi Road, Columbus, Ohio, 43228.
JURSJDJCTION
17. This Court has subject matter jurisdiction under 15 U.S.C 1121 (actions arising under
the Lanham Act); 28 U.S. C. 1338(a) (any Act of Congress relating to patents or trademarks); and 28
U S.C. 1331 (federal question) In addition, this Court has subject matter jurisdiction pursuant to 28
U.S C_ 1332(a) because the parties' citizenship is diverse and the amount in controversy exceeds
$75,000.00, exclusive of interest and costs.
18. This Court has personal jurisdiction over Defendants because, on information and belief,
22 Defendants have committed and continue to commit acts of infringement in violation of35 u_s_e_ 271
23 and 15 U.S.C. 1125, and place the infringing products into the stream of commerce, with the
2-1- knowledge or understanding that such products are sold in this State, including in this District.
25 Humangear is informed and believes, and on that basis alleges, that Defendants have distributed, offered
26 for sale and/or sold the infringing products in this State, have engaged in acts or omissions in this State,
27 have engaged in acts or omissions outside this State causing injury within this State, have manufactured,
28 distributed, offered for sale and/or sold the infringing products used in this State in the ordinary course
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CO\fPI .-\1?\T FOR DESIG:\ PXIEI\ I' INtRI"JGH.IE?\T .\?\'D TR.\DE DRESS 1:\Fil.JNOHJFI\r
of trade, and/or have otherwise made or established contacts with this State sufficient to permit exercise
2 of personal jurisdiction .
.1 VENUE AND INTRA DISTRICT ASSIGNMENT
19. Venue is proper within this District under 28 U.S.C 1391(b) and (c) because
5 Defendants transact business within this district and distribute, offer for sale and/or sell in this district
6 products that infringe Humangear's design patents and trade dress. In addition, venue is proper because
7 Humangear's principal place ofbusiness is in this district and Humangear suffered harm in this district.
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20. Pursuant to this District's Local Rule 3-2(c), this is an Intellectual Property Action to be
assigned on a district-wide basis.
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FIRST CLAIM FOR RELIEF
(Trade Dress Infringement)
(Lanham Act Section 43(a), 15 U.S.C. 1125(a))
Humangear incorporates and realleges paragraphs I through 20 of this Complaint.
Humangear is the owner of all rights and title to the distinctive GoToob trade dress,
which is not functional and enjoys secondary meaning among consumers, identifying Humangcar as the
source of the GoToob products.
23. Humangear's promotion and marketing of the distinctive GoToob trade dress has resulted
in Humangear's acquisition of valuable, legally protected rights in the GoToob trade dress as well as
customer goodwill.
24. The "Travel Bottles" and the "Squeezees" products have misappropriated the distinctive
GoToob trade dress by mimicking that trade dress.
25. Defendants' manufacture, importation into the United States, distribution, offering for
sale and/or selling the "Travel Bottles" and the "Squeezees" products with the product design that
mimics the distinctive GoToob trade dress is likely to cause confusion, or to cause mistake, or to deceive
the consumer as to the affiliation, connection or association of Defendants with Humangear, or as to the
origin, sponsorship, or approval by Humangear of Defendants' goods or commercial activities.
26. Defendants' manufacture, importation into the United States, distribution, offering for
sale and/or selling the "Travel Bottles" and the 'Squeezees" products with the product design that
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COMPLAINT FOR DESIGN ?AH.VJ' 1:-.JFRIMJFMFNT .-\Nil TRADE DRESS
mimics the distinctive GoToob trade dress enables Defendants to benefit unfairly from Humangear's
2 reputation and success, thereby giving Defendants infringing products sales and commercial value they
J would not have otherwise.
-1 27. Defendants' actions constitute false designation of origin of goods in violation of Section
5 4J(a) of the Lanham Act, 15 U.S. C. 1125(a)
6 28. Humangear has been and will continue to be irreparably harmed and damaged by
7 Defendants' conduct, and Humangear lacks an adequate remedy at law to compensate for this harm and
8 damage.
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Humangear is informed and believes, and on that basis alleges, that Defendants have
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gained profits by virtue of their infringement of the distinctive GoToob trade dress.
30. Humangear has sustained damages as a direct and proximate result of Defendants'
infringement of the distinctive GoToob trade dress in an amount to be proven at trial.
31 Humangear is informed and believes, and on that basis alleges, that Stance knew of the
Humangear GoToob trade dress when it designed its "Travel Bottles" and "Squeezees" products.
Humangear sent a letter to CVS on or about November 10, 2011, wherein Humangear informed CVS
that a product sold by CVS appeared to be a knockoff of the GoToob products. Stance responded to
Humangear's letter on or around November 30, 2011, and identified itself as the exclusive distributor of
the accused "Travel Bottles" product. Stance has also admitted to Humangear that it has shipped the
''Squeezees" product to Big Lots. Stance has refused to change its product design in response to
Humangear's objections. Accordingly, Stance's infringement has been and continues to be intentional,
willful and without regard to Humangear's GoToob trade dress rights.
32. Because Stance's actions have been willful, Humangear is entitled to treble
damages and to an award of costs, and, this being an exceptional case, reasonable attorneys' fees
pursuantto 15 U.S. C. Ill?( a).
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SECOND CLAIM FOR RELIEF
(Infringement of the 'D263 Patent)
Humangear incorporates and realleges paragraphs 1 through 32 of this Complaint.
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DfSJG'\ PATE'\T 11\tRI'\GEME:--.JT ."'-.'ID TRADE DRESS ['lfRI:'\"GniENT
34. On March 23,2010, the United States Design Patent No. D612,263 ("the '0263 Patent")
2 titled "Dispensing Container," was duly and legally issued. The '0263 patent is assigned to Humangear.
3 A copy of the '0263 patent is attached hereto as Exhibit A
.J. 35. Pursuant to 35 U.S.C. 282, the '0263 patent is presumed valid.
5 36 Defendants have infringed and continue to infringe the 'D263 Patent by making, using,
G selling and/or offering to sell in the United States, and/or importing into the United States, the "Travel
7 Bottles'' and the "Squeezees" products which embody the design covered by the 'D263 design patent.
8 37. Defendants' acts of infringement of the '0263 patent, as alleged above, have injured
9 Humangear, and Humangear is entitled to recover damages adequate to compensate it for Defendants'
10 acts of infringement, in an amount which can be no less than a reasonable royalty.
JI 38. As a result of the infringing activities ofOefendants, Humangear has been and continues
12 to suffer irreparable injury.
13 39. Humangear has given notice to Stance of its infringement of the '0263 design patent on
J.J. or about November 10, 2011. Humangear is informed and believes, and on that basis alleges, Stance has
15 willfully infringed the '0263 design patent, making this an exceptional case and justifying the
16 assessment of treble damages pursuant to 35 U.S. C. 284 and attorneys' fees pursuant to 35 US C.
17 285.
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40. Humangear is informed and believes, and on that basis alleges, that Big Lots' continuing
offering for sale and/or selling of the "Squeezees" products after the filing and service of this Complaint
constitutes willful infringement of the 'D263 design patent, making this an exceptional case and
justifying the assessment of treble damages pursuant to 35 U.S.C 284 and attorneys' fees pursuant to
35 U S.C. 285.
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42.
THIRD CLAIM FOR RELIEF
(Infringement of the 'D264 Patent)
Humangear incorporates and realleges paragraphs I through 40 of this Complaint.
On March 23, 2010, the L"nited States Design Patent :'\Jo. 0612,264 ("the '0264 Patent")
27 titled "Dispensing Container," was duly and legally issued. The '0264 patent is assigned to Humangear.
28 A copy of the 'D264 patent is attached hereto as Exhibit B.
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FOR DFS!Gl\ PA'IE:\T 1!\FRI:-JGEME:\T A.'DTRADE DRESS 1:\fRfNGF.l\IE!\ r
43 Pursuant to 35 U_S_C 282, the 'D264 patent is presumed valid.
2 44. Defendants have infringed and continue to infringe the '0264 Patent by making, using,
3 selling and/or offering to sell in the United States, and/or importing into the United States, the 'Travel
-1- Bottles" and the "Squeezees" products which embody the design covered by the '0264 design patent
5 45. Defendants' acts of infringement of the '0264 patent, as alleged above, have injured
6 Humangear, and Humangear is entitled to recover damages adequate to compensate it for Defendants'
7 acts of infringement, in an amount which can be no less than a reasonable royalty_
8 46. As a result of the infringing activities of Defendants, Humangear has been and continues
9 to suffer irreparable injury.
10 47. Humangear has given notice to Stance of its infringement of the 'D264 design patent on
11 or about November 10, 2011. Humangear is informed and believes, and on that basis alleges, Stance has
12 willfully infringed the '0264 design patent, making this an exceptional case and justifying the
13 assessment of treble damages pursuant to 35 U.S.C. 284 and attorneys' fees pursuant to 35 U.S. C.
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48. Humangear is informed and believes, and on that basis alleges, that Big Lots' continuing
offering for sale and/or selling ofthe "Squeezees" products after the filing and service of this Complaint
constitutes willful infringement of the '0264 design patent, making this an exceptional case and
justifying the assessment of treble damages pursuant to 35 U.S. C. 284 and attorneys' fees pursuant to
35 us. c. 285.
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50.
FOURTH CLAIM FOR RELIEF
(Infringement of the 'D741 Patent)
Humangear incorporates and realleges paragraphs 1 through 48 of this Complaint.
On March 30, 2010, the United States Design Patent No. D612,741 ("the '0741 Patent")
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titled "Dispensing Container," was duly and legally issued. The '0741 patent is assigned to Humangear.
25 A copy of the '0741 patent is attached hereto as Exhibit C
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51. Pursuant to 35 U.S. C. 282, the '0741 patent is presumed valid.
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COMPLAINT FOR DESIGN PATEl\ I" I!'\FR!:--.IGE\{E:-.1 A\"DTR.\Dr DRESS 1:\FRINGHll:.:\ I"
52. Defendants have infringed and continue to infringe the '0741 Patent by making, using,
2 selling and/or offering to sell in the United States, and/or importing into the United States, the "Travel
3 Bottles" and the "Squeezees" products which embody the design covered by the '0741 design patent
-1- 53 Defendants' acts of infringement of the '0741 patent, as alleged above, have injured
5 Humangear, and Humangear is entitled to recover damages adequate to compensate it for Defendants'
6 acts of infringement, in an amount which can be no less than a reasonable royalty.
7 54. As a result of the infringing activities of Defendants, Humangear has been and continues
8 to suffer irreparable injury.
9 55. Humangear has given notice to Stance of its infringement of the 'D741 design patent on
10 or about November 10, 2011. Humangear is informed and believes, and on that basis alleges, Stance has
11 willfully infringed the 'D741 design patent, making this an exceptional case and justifying the
12 assessment of treble damages pursuant to 35 U.S.C. 284 and attorneys' fees pursuant to 35 U.S. C.
13 285.
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56. Humangear is informed and believes, and on that basis alleges, that Big Lots' continuing
offering for sale and/or selling of the "Squeezees" products after the filing and service of this Complaint
constitutes willful infringement of the 'D741 design patent, making this an exceptional case and
justifying the assessment of treble damages pursuant to 35 U.S.C 284 and attorneys' fees pursuant to
35 us. c. 285.
PRAYER FOR RELIEF
WHEREFORE, Humangear prays for relief, as follows:
1. A judgment that Defendants have infringed each ofHumangear's asserted design patents;
2. An order and judgment preliminarily and permanently enjoining Defendants and their
officers, directors, agents, servants, employees, affiliates, attorneys, and all others acting in
privity or in concert with them, and their parents, subsidiaries, divisions, successors and assigns,
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from further acts of infringement ofHumangear's asserted design patents;
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3 A judgment awarding Humangear all damages adequate to compensate for Defendants'
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infringement ofHumangear's asserted design patents, and in no event less than a reasonable royalty for
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.. -\1'\T FOR DESIG'\ PATE?"T _-\..'\ID TRADF DRESS
Defendants' acts of infringement, as well as the pre-judgment and post-judgment interest as authorized
2 by Jaw;
3 4. A judgment awarding Humangear all damages, including treble damages, based on any
4 infringement found to be willful, pursuant to 35 U.S.C. 284, together with prejudgment interest;
5 5. An order preliminarily and permanently enjoining Defendants and their officers,
6 irectors, agents, servants, employees, affiliates, attorneys, and all others acting in privity or in concert
7 ith them, and their parents, subsidiaries, divisions, successors and assigns, from directly or indirectly
g nfringing the Humangear GoToob trade dress, or using any other product design similar to or likely to
9 ause confusion with the Humangear GoToob trade dress;
10 6. Actual damages suffered by Humangear as a result of Defendants' unlawful conduct, in
11 an amount to be proven at trial, as well as the pre-judgment and post-judgment interest as authorized by
12 law;
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17 circumstances.
An accounting of Defendants' profits pursuant to 15 U.S.C. 1117;
A judgment trebling any damages award pursuant to 15 U.S.C. 1117;
Costs of suit and reasonable attorneys' fees;
Such other and further relief as the Court may deem just and proper under the current
DERGOSJTS & NOAH LLP
By ~ t & W J
M;:: L E. DERGOSITS
IGOR SHOIKET
Attorneys for Plaintiff
HUMANGEAR, INC.
-15-
COMPLAINT FOR DESIGN PATENT INFRINGEMENT AND TRADE DRESS INFRINGEMENT
2
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JURY DEMAND
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Humangear hereby demands a
trial by jury for all issues so triable.
5 Dated \2 {ZD((z DERGOSITS & NOAH LLP
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By:
MJCI{)(EL /'t DERGOSITS
IGOR SHOll< ET
Attorneys for Plaintiff
HUMANGEAR, INC.
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COMPLAINT FOR DESIGN PATENT INFRINGEMENT AND TRADE DRESS INFRINGEMENT
EXHIBIT A
021 United States Design Patent
1
,,, Patent us 0612,263 s
** Mar. 23,2010 (45) Date of Patent:
(54) lliSI'F.NSIN<; CON L\lr\ER
''51 .. illWill<'r' .\lnls '11ksnvsky, San
l'r.m;;,co, CA (US)
(73) .-\<;<g<:cc ]Iuman Gear, Inc. s,m haiKI"'o ['_-\
(US]
, .. )
lcrlll 14 Years
(21) Appl. 2Y/315,53U
(22) Foled Jul. l, 2009
(51) LOC(9)l'l. !19111
(52) u.s. Cl. 1)91652; l)<l/521. [)61542
( Field of Sfwrch llfi/542,
I"J')IOOO, tifi/, (,95-ll'li. 702.
])91707--711. 723, 729--733, 516, 52()-521.
l)<JI547, 551: 206.'457. 822; 2151230, 400:
220.'890
Sc'<.' :opplic>Hillll Jile [llr complete search bis10ry.
('i6) Cited
U.S. PATENT DOCUMENTS
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accordiq; P"''""l irwention.
fiG. 2 is a top pl<ut view thereof;
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Date of Patent: ** Mar. 23, 2010
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