IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA : : : : : : : : : : : : :

SPECTRUM IMPORTS, INC. and

901 South Bolmar Street, Suite G, West Chester, PA 19382

DANIEL BERKOWITZ,
420 Heatherwood Lane, Devon, PA 19333

Plaintiffs, v. CHRISTMAS TREE SHOPS, INC. and

955 E. Lancaster Avenue, Downingtown, PA 19335

Civil Action No. ______________

NANTUCKET DISTRIBUTING CO. LLC,

650 Liberty Avenue, Union, NJ 07083

Defendants.

: : JURY TRIAL DEMANDED

ORIGINAL VERIFIED COMPLAINT WITH REQUEST FOR PERMANENT INJUNCTIVE RELIEF AND DAMAGES AND JURY DEMAND TO THE HONORABLE UNITED STATES DISTRICT COURT: Plaintiffs, Spectrum Imports, Inc. and Daniel Berkowitz, for their complaint against Defendants Christmas Tree Shops, Inc. and Nantucket Distributing Co. Inc., allege on knowledge as to their own acts and otherwise on information and belief as follows: INTRODUCTION 1. Plaintiff Spectrum Imports, Inc. (Spectrum) is a Pennsylvania corporation with its principal place of business at 901 South Bolmar Street, Suite G, West Chester, Pennsylvania 19382. 2. Plaintiff Daniel Berkowitz (Berkowitz) is an individual who resides in the Commonwealth of Pennsylvania, at 420 Heatherwood Lane, Devon, Pennsylvania 19333. 3. Defendant Christmas Tree Shops, Inc. (CTS) is a Massachusetts Corporation having a place of business at 955 E. Lancaster Avenue, Downingtown, Pennsylvania 19335.

4. Defendant Nantucket Distributing Co. LLC is a Delaware Corporation having a place of business at 650 Liberty Avenue, Union, New Jersey 07083.

JURISDICTION AND VENUE 5. This is an action arising under the Patent Laws of the United States, 35 U.S.C. 101, et seq., with subject matter jurisdiction based on 28 U.S.C. 1338(a). 6. The Court has personal jurisdiction over Defendants in that Defendant CTS has a regular and established place of business in Pennsylvania and in this District, and Defendants import, offer to sell and/or sell wine purses that infringe Plaintiffs patented designs in the Commonwealth of Pennsylvania and in this District. 7. Venue is proper in the Eastern District of Pennsylvania under 28 U.S.C. 1391(c) and 1400(b) in that infringement has been committed at Defendants regular and established place of business in this District. At all times material, the Defendants have been conducting business within the Commonwealth of Pennsylvania and this District and the claims of patent infringement arose in this District. COUNT I PATENT INFRINGEMENT 8. On January 28, 2011, United States Design Patent Application No. 29/372,883 (the `883 application) for an invention entitled BOTTLE CARRIER was filed by Plaintiff, Mr. Berkowitz. 9. On April 2, 2013, the `883 application was duly and legally issued to Plaintiff, Daniel Berkowitz, by the United States Patent and Trademark Office as United States Design Patent No.: D679,092 (`the `092 patent). Exhibit 1 hereto is a true and correct copy of Mr. Berkowitzs U.S. Patent D679,092.

10. The 092 patent is directed to an ornamental design for a bottle carrier for which the design is reproduced below:

11. The design of the `092 patent provides coverage for a bottle carrier. (See Exhibit 1) 12. At all times relevant herein, Plaintiff Daniel Berkowitz has been and still is the owner of the 092 Patent and owns all rights to sue for infringement of said patent. 13. Plaintiff Daniel Berkowitz also is the owner of U.S. Design Patent No. D689,283, which was duly and lawfully issued on September 10, 2013, based on U.S. Design Patent Application No. 29/445,662, filed on February 14, 2013 for an invention in a BOTTLE CARRIER (hereinafter 283 Patent). Exhibit 2 hereto is a true and correct copy of Mr. Berkowitzs U.S. Patent D689,283. At all times relevant herein, Plaintiff, Daniel Berkowitz, has been and still is the owner of the 283 Patent and owns all rights to sue for infringement of said patent. 14. Plaintiff Spectrum is a wholesale distributor of coolers, picnic backpacks, picnic baskets, wine carriers, barbecue tool sets, portable outdoor furniture, and other related items. Spectrum, with the permission of Plaintiff Mr. Berkowitz under exclusive license from Plaintiff Mr. Berkowitz, makes, sells and offers for sale, bottle carriers embodying the designs of the `092 and `283 patents. Spectrum markets and sells products under its 3

PICNIC PLUS brand, including wine carriers. (See pages 60-62 of Spectrums 2013 catalog which are attached hereto as Exhibit 3). 15. Plaintiffs have complied with the statutory notice requirement of the U.S. Patent Laws, 35 U.S.C. 287. 16. Defendants have been and still are infringing the 092 and 283 Patents by making, selling, offering for sale, importing, and/or using products embodying the Plaintiffs patented inventions embodied in the `092 and `283 patents. As seen immediately below, Defendants products clearly embody the Plaintiff Daniel Berkowitzs patented inventions embodied in the 092 and 283 patents.

FIG. 1 of the `092 patent

Defendants Infringing Product

FIG. 1 of the 283 patent 4

Defendants Infringing Product

Photographs of the Defendants infringing products and a receipt of purchase are attached as Exhibit 4. Defendants will continue to infringe the patents unless enjoined by the Court. 17. Defendants' infringement has caused Plaintiffs to suffer damages. As an additional remedy, Plaintiffs are entitled to an award of Defendants' total profits earned from the design patent infringement. As a further additional remedy, Plaintiff Spectrum is entitled to damages for price erosion. On information and belief, said infringement was willful, making this an exceptional case entitling Plaintiffs to awards of attorneys fees and treble damages. Plaintiff, Mr. Berkowitz, is the president of Plaintiff Spectrum which is a corporation of the Commonwealth of Pennsylvania. 18. Defendants have no authority to make, use, offer to sell, sell, or import in the United States bottle carriers having a design that is protected by the `092 patent and/or the `283 patent. 19. Defendants have infringed the `092 and `283 patents under 35 U.S.C. 271(a) by making, using, offering to sell, or selling within the United States; or importing into the United States, bottle carriers embodying the designs of the patents. 20. Defendants have copied Plaintiffs patented design:

FIG. 1 of the `092 patent

Defendants Infringing Product 5

21. Exhibit 5 attached hereto is an excerpt from Defendants' advertisement depicting and offering for sale one of Defendants' infringing bottle carriers, referred to as Embossed Wine Purses. 22. In addition to copying Plaintiff Spectrums patented designs, Defendants also have paraphrased Plaintiff Spectrums product advertising copy, with the infringing products being sold by the Defendants in packaging using the phrase Great as a wine tote or a very retro style purse for those nights out on the town, compared with Plaintiff Spectrums advertising copy Go out and hit the town with the very fashionable Carlotta Clutch wine purse from Picnic Plus. (See Exhibit 6 hereto which are photographs of the images of the packaging used by Defendants for their infringing wine purses, and see Exhibit 7 hereto which is a printout of a page from Plaintiff Spectrums web site www.picnic-plus.com). 23. One or more of the Defendants also operate a web site at http://www.christmastreeshops.com, which allows purchasers to purchase products directly from the web site, including the infringing bottle carriers. Exhibit 8 hereto is a printout from Defendants' web site displaying the bottle carriers. 24. Exhibit 9 hereto are photographs taken at Defendant CTSs retail store located at 955 E. Lancaster Avenue, Downingtown, Pennsylvania, 19335, showing displays of the infringing wine purses offered for sale and/or sold by Defendants. 25. Defendants sell or have sold, or have offered for sale, or are offering for sale infringing bottle carriers, as depicted in Exhibits 4, 5, 8 and 9, to residents of the Commonwealth of Pennsylvania, including through Defendants' retail store in this district which Defendants own and operate. 26. Defendants' infringement will continue unless enjoined by the Court. 6

27. In contravention to 35 U.S.C. 271(a)(b) and (c), Defendants have and/or are infringing and/or have and/or are willfully and deliberately infringing the `092 and `283 patents by making, using selling, and/or offering to sell, and/or importing into the United States, and/or inducing others to make, use, sell, and/or offer to sell products that embody the designs of the `092 and `283 patents. Such acts of infringement have occurred and continue to occur without the authority or license of Plaintiffs. 28. Plaintiffs have and are being damaged and will continue to be damaged by the infringing activities of Defendants.

PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, Plaintiff prays for judgment as follows: a. That the `092 and `283 patents have been infringed by Defendants and/or others to whose infringement has been contributed to by Defendants and/or by others whose infringement has been induced by Defendants; b. That, pursuant to 35 U.S.C. 283, preliminary and final injunctions be issued enjoining Defendants, their agents, servants and employees and all those in privity, concert or participation with any of them, from making, selling, offering for sale, importing and using any product in violation of Plaintiff Daniel Berkowitzs patents on the Bottle Carrier inventions; c. The Plaintiffs be granted a judgment against Defendants for their damages, which damages should be trebled, and for Defendants' total profits, and for price erosion; d. That Defendants be required to pay the Plaintiffs their costs incurred herein, as well as reasonable attorneys fees, as provided by the Patent Laws;

e. That the Defendants be required to pay the Plaintiffs pre-judgment interest on the amount awarded and post-judgment interest until paid, all at the lawful rate; and f. That Plaintiffs have such other and further relief as to this Court deems just and proper. JURY DEMAND Plaintiffs demand a trial by jury. Respectfully submitted, HARDING EARLEY FOLLMER & FRAILEY

Date:

December 6, 2013

By: s/Frank J. Bonini, Jr. Frank J. Bonini, Jr. (PA 59,394) fbonini@hardingearley.com John F. A. Earley, III (PA 38,839) jackearley@hardingearley.com HARDING, EARLEY, FOLLMER & FRAILEY, P.C. 86 The Commons at Valley Forge East 1288 Valley Forge Road P.O. Box 750 Valley Forge, PA 19482-0750 Telephone: (610) 935-2300 Facsimile: (610) 935-0600 Attorneys for Plaintiffs Spectrum Imports, Inc. and Daniel Berkowitz

VERIFICATION I, Daniel Berkowitz, declare as follows: 1. I have personal knowledge of the facts set out in the foregoing Complaint, and if called upon to testify I would competently testify as to the matters stated herein. 2. I verify under penalty of perjury under the laws of the United States of America that the factual statements in this Complaint are true and correct to the best of my knowledge, and are based upon information obtained during the investigation of this matter.

Executed on December 6, 2013.

s/Daniel Berkowitz Daniel Berkowitz