Bobcar v. Aardvark - Amended Complaint

Case 1:16-cv-00885-JPO Document 10 Filed 03/31/16 Page 1 of 27
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
BOBCAR MEDIA, LLC.
Civil Action No. 1:16-cv-00885
Plaintiff,
v.
(JURY TRIAL DEMANDED)
AARDVARK EVENT LOGISTICS, INC.

Defendant.
AMENDED COMPLAINT
Plaintiff Bobcar Media, LLC (Bobcar or Plaintiff) by its attorneys, hereby
complains of Defendant Aardvark Event Logistics, Inc. (Aardvark or Defendant) as
follows:
JURISDICTION AND VENUE
1.
This is an action for patent infringement arising under the Patent Laws of
the United States, 35 U.S.C. 101 et seq.; trademark infringement and unfair competition
under Section 43 of the Lanham Act, 15 U.S.C. 1125; and for unfair competition under
the law of the State of New York. This Court has jurisdiction over the federal claims of
this action pursuant to 28 U.S.C. 1331, 28 U.S.C. 1332, 28 U.S.C. 1338, and 15
U.S.C. 1121, and has jurisdiction over the state claims under 28 U.S.C. 1338(b) and
further pursuant to its supplemental jurisdiction under 28 U.S.C. 1367. The state claims
asserted herein are so related to the federal claims as to form part of the same case or
controversy.
2.
This action arises from Defendants use, making, sale, offer for sale,
and/or importing of promotional vehicles, and conduct of activities, that infringe

Plaintiffs patents and trade dress.
3.
This Court has personal jurisdiction over Defendant in that Defendant has
engaged in acts constituting doing business in the State of New York, including in this
judicial district and have intentionally directed its tortious activities toward the State of
New York, including this judicial district. Defendant has committed acts of intellectual
property infringement in New York, including this judicial district, and has delivered the
accused promotional vehicles into the stream of commerce with the expectation that they
will be used and/or purchased by consumers in the State of New York, including this
judicial district. Upon information and belief, Defendant has used the accused vehicles in
this State, including this judicial district, and/or offered for sale and/or sold promotional
vehicles, including promotional vehicles that are the subject of this Complaint, to
consumers in the State of New York.
4.
Venue is proper in this Court, pursuant to 28 U.S.C. 1391, and 28
U.S.C. 1400.
THE PARTIES
5.
Plaintiff Bobcar Media, LLC is a limited liability company organized and
existing under the laws of the State of New York having a principal place of business at
110 Wall Street, 4th Floor, New York, New York 10005. Bobcar is the owner of the
patents and trademarks that are the subject of this Complaint.
6.
Defendant Aardvark Event Logistics, Inc. (Defendant or Aardvark), is
a corporation organized and existing under the laws of the State of Pennsylvania having a
principal place of business at 1979 Pioneer Road, Huntingdon Valley, PA 19006.
Aardvark makes, uses, offers for sale, sells and/or imports the accused promotional
vehicles in the United States.
FACTS
PLAINTIFFS PATENTS
AND TRADE DRESS
7.
Bobcar Media LLC is the owner of new technology and designs, including
new inventions relating to promotional vehicles.

8.
Plaintiffs unique and innovative designs for promotional vehicles are well
known throughout the United States as a result of the popular promotional vehicles that
Plaintiff has designed, introduced, and commercialized in interstate commerce.
9.
On May 17, 2011 United States Patent No. 7,942,461 B2 entitled Method
and Apparatus for Selling Consumer Products was duly and lawfully issued to Bobcar
by the United States Patent and Trademark Office (hereafter the 461 patent). A copy
of the 461 patent is attached as Exhibit 1 hereto.
10.
On July 17, 2012 United States Patent No. 8,220,854 B2 entitled Method
11.
On April 8, 2014 United States Patent No. 8,690,215 B2 entitled Method
3
12.
On January 17, 2012 United States Design Patent No. D 652,353 entitled
Promotional Vehicle was duly and lawfully issued to Bobcar by the United States
Patent and Trademark Office (hereafter the 353 patent). A copy of the 353 patent is
attached as Exhibit 4 hereto.
13.
On March 26, 2013 United States Design Patent No. D 678,823 entitled
Promotional Vehicle was duly and lawfully issued to Bobcar by the United States
Patent and Trademark Office (hereafter the 823 patent). A copy of the 823 patent is
attached as Exhibit 5 hereto.
14.
Plaintiff Bobcar also has rights to the trade dress of its promotional vehicle
designs. That trade dress includes the combination and arrangement of the following
features:
a promotional vehicle having a compact cab in the front, and a compact
showroom in back, the showroom having substantially rectangular or square
panels on the left and right sides and rear in the closed position, the vehicle
having a configuration in which those panels are raised above the showroom
and above the height of the front cab in an open position, the showroom being
open to the public on three sides when the panels are in the open position,
providing an open air showroom which is used to promote goods or services
displayed in the showroom, wherein the promotional vehicle includes a
colorful front cab and colorful back, including a colorful coordinated theme
extending the entire length of the vehicle from front to back and
corresponding to the brand or type of goods or services in the showroom, and
with the vehicle having advertising or promotional materials on the panels
visible in the open and closed positions and corresponding to the brand or type
of goods or services in the showroom.
Examples of Bobcars promotional vehicles and their trade dress are attached
as Exhibit 6 hereto.
4
15.
Bobcar was the first to introduce the combination and arrangement of
features above for a promotional vehicle into interstate commerce.

16.
The combination and arrangement of features above constitutes the
distinctive trade dress of Plaintiff Bobcar.

17.
Bobcars trade dress is inherently distinctive.
18.
Bobcars trade dress also has acquired distinctiveness, also known as
secondary meaning.
19.
Bobcars trade dress has acquired distinctiveness as demonstrated by, inter
alia: Bobcars expenditures of over a million dollars promoting and popularizing its
trade dress; industry recognition, including: the 2015 EX Silver Award for Best Mobile
Marketing Program, which was awarded to Bobcars innovative mobile showroom in a
competitive selection from over a thousand entries from agencies throughout the country;
media coverage of Bobcars product and programs; Bobcars sales success, having
generated millions of dollars of revenue from its trade dress, and having repeatedly been
chosen for marketing programs by major companies and industry leaders such as
Samsung, T-Mobile, Verizon, Clear, Pentax, and Olympus, among others; Bobcars
approximately eight years of exclusive use of the trade dress; the recognition of Bobcars
trade dress and the good will associated therewith in the industry, including, recognition
and good will with numerous major consumers; and, Aardvarks plagiarism, which trades
off of Bobcars trade dress and the good will and success associated therewith.
20.
Bobcars trade dress is also non-functional.
21.
The Bobcar trade dress is a combination and arrangement of features
providing a unique ornamental and aesthetic appearance that was designed by Bobcar.
22.
Bobcars trade dress is not essential to the use or purpose of a promotional
vehicle.
23.
There are numerous alternative means to perform the function of
promoting goods and services without using Bobcars trade dress.

24.
Plaintiff has used its inventions and designs on promotional vehicles used
in interstate commerce, and has generated extensive revenue from its promotional
vehicles using its trade dress.
25.
Plaintiff invested significant time, funds, and effort into the development,
marketing, and commercialization of its inventions, trade dress, and designs, with respect
to promotional vehicles.
26.
As a result of Plaintiffs efforts and promotional, advertising, and
marketing activities, Plaintiffs promotional vehicles, designs therefor, and trade dress
have become widely known throughout the United States.
27.
Plaintiffs intellectual property including its patents, its trade dress, and
the associated goodwill directed to its promotional vehicles, are all valuable assets of
Plaintiff.
DEFENDANTS INFRINGEMENT OF
PLAINTIFFS PATENTS AND TRADE DRESS
28.
During the term of the Bobcars patents, Defendant has manufactured or
had manufactured for it, and has offered for sale, sold, used, and/or imported articles
embodying the patented inventions and designs of Bobcars patents, and engaged in
6
activities infringing Bobcars patents, namely, the 461, 854, 215, 353, and 823
patents.
29.
Defendants articles that infringe Bobcars patents include Defendants
Aardy promotional vehicles. Examples of Defendants infringing promotional vehicles

are attached as Exhibit 7 hereto.
30.
Defendants accused promotional vehicles infringe at least claim 1 of each
of the utility patents, namely, the 461, 854, and 215 patents, among other claims of the
utility patents.
31.
Claim 1 of the 461 patent recites an article of manufacture, comprising:
(a) a self-propelled moving vehicle, said self-propelled moving vehicle

comprising a cab and a showroom, said showroom being provided behind said cab;
(b) said showroom comprising a frame and a display platform, said frame and
display platform defining an internal display area;
(c) said self-propelled moving vehicle comprising a series of panels affixed to
said frame, said series of panels comprising a panel on the left side of said showroom, a
panel on the right side of said showroom, and a panel at the rear of said showroom;
(d) said panels having a front side and a back side, wherein advertising is
provided on at least one of said sides of at least one of said panels to promote a product
or service to consumers;
(e) wherein each of said panels is movable, such that said panels have a lowered
position and a raised position;
(f) wherein said series of panels surround said showroom on three sides when said
panels are in said lowered position;
(g) wherein said display platform is open to the air on at least three sides when
said series of panels are all in said raised position, such that a consumer can reach in from
the left side, right side, and rear of said showroom to touch any products positioned on
said display platform; and,
(h) wherein advertising is provided on said front of at least one of said panels
when said panels are in said raised position, such that said panel serves as a vertical
billboard above said display platform and above said roof of said showroom.
32.

(b) said showroom comprising a display area;
(c) said showroom further comprising a series of panels, said series of panels
comprising a panel on the left side of said showroom, a panel on the right side of said
showroom, and a panel at the rear of said showroom;
(d) wherein each of said panels is movable, such that each of said panels has a
closed position and an open position; and
(e) wherein said display area is open to the air when one or more of said panels is
in said open position, such that a consumer can reach in to touch products positioned in
said display area.
33.

8

(b) said showroom comprising a display area;
(c) said showroom further comprising a series of panels, said series of panels
comprising a panel on the left side of said showroom, a panel on the right side of said
showroom, and a panel at the rear side of said showroom; and,
(d) wherein each of said panels is movable, such that each of said panels has a
closed position and an open position.
34.
As shown by the images of the accused product in Exhibit 7, and further
images on Defendants website, the accused product includes all of the limitations of the
claims set forth above, infringing those claims.
35.
Specifically, as shown in Exhibit 7, the accused product is a self-propelled
moving vehicle, the self-propelled moving vehicle having a cab (at the front of the
vehicle), and having a showroom provided behind the cab.
36.
As shown in Exhibit 7, the back of the accused product includes a frame
and a display platform, with the frame and display platform defining an internal display
area.
37.
As also shown in Figure 7, the accused product has a series of panels
affixed to that frame. In particular, the accused product includes a panel on the left side
of the showroom, a panel on the right side of the showroom, and a panel at the rear of the
showroom. The panels have a front side and a back side, wherein advertising is provided
on at least one of the sides of at least one of the panels to promote a product or service to
9
consumers. Each of the panels is movable, such that they have a lowered or closed
position and a raised or open position. The series of panels surround the showroom on
three sides when the panels are in the lowered position.
38.
As shown in Exhibit 7, the display platform of the accused product is open
to the air on at least three sides when the series of panels are all in the raised position,
such that a consumer can reach in from the left side, right side, and rear of the showroom
to touch any products positioned on the display platform.
39.
As also shown in Exhibit 7, advertising is provided on the front of at least
one of the panels when the panels are in the raised position, such that the panel serves as
a vertical billboard above the display platform and above the roof of the showroom.
40.
Although for any particular patent claim all of the above-cited features of
the accused product are not necessarily needed to infringe, the presence of all of these
features in the accused product confirms that the accused product literally infringes at
least claim 1 of each and every utility patent-in-suit.
41.
Alternatively or additionally, the accused product infringes at least claim 1
of each and every utility patent-in-suit under the doctrine of equivalents.

42.
Defendants accused promotional vehicles also infringe the single claim of
each of the design patents, namely, the 353, and 823 patents.
43.
An image of one of Defendants accused products is attached as Exhibit 7
hereto. Further images are located on Defendants website, www.theaardy.com.
10
44.
In the eye of an ordinary observer, giving such attention as a purchaser
usually gives, Defendants accused design and Plaintiffs patented designs are
substantially the same.
45.
An ordinary observer would see the design of Defendants accused
product as making the same design impression, or as being the same design, as the
patented design of the 353 patent.
46.
An ordinary observer would likewise see the design of Defendants
accused product as making the same design impression, or as being the same design, as
the patented design of the 823 patent.
47.
An ordinary observer would likewise consider the accused design, in the
context of any prior art, and giving such attention as a purchaser usually gives, to be the
same as the patented designs of the 353 and 823 patents.
48.
In the eye of the ordinary observer, giving such attention as a purchaser
usually gives, the accused design and patented designs are substantially the same, with
the resemblance being such as to deceive such an observer, inducing him to purchase one
supposing it to be the other.
49.
In fact, Defendants accused design is virtually identical, if not identical,
to Plaintiffs patented designs.

50.
Defendants accused design infringes Plaintiffs design patent rights.
51.
In addition to its acts of patent infringement, Defendant also infringes
Bobcars trade dress.
11
52.
Defendants accused product includes all of the features of Bobcars trade
dress described above.
An example of Defendants accused product, including the
features of Plaintiffs trade dress, is set forth in Exhibit 7. Likewise, numerous images of
further infringements of Bobcars trade dress are shown on Defendants website,
http://www.theaardy.com.
53.
Defendants trade dress poses a likelihood of confusing and misleading
consumers into believing that Defendants goods originate from, are sponsored by, or are
affiliated with Bobcar.
54.
Defendants bad faith activities have caused and will continue to cause a
likelihood of deception and confusion in the marketplace among consumers, and

extensive damage to Bobcar and its business, goodwill and reputation.
55.
In addition, there has been actual confusion.
56.
Defendant has illegally profited from its infringement of Bobcars
patented inventions, designs, and trade dress.

57.
Defendants acts have been without license or authority of Bobcar.

WILLFUL INFRINGEMENT
58.
Defendants activities have been deliberate and willful.
59.
Defendant is aware of Bobcars patented inventions and designs, and has
deliberately chosen to use, sell, and offer for sale, promotional vehicles intended to copy
or imitate those inventions and designs.
60.
Defendant is also aware of Bobcars trade dress, and has deliberately
chosen to make, use, sell and/or offer for sale promotional vehicles which incorporate
12
highly similar dress, and which are intended to cause confusion with Bobcars trade
dress.
61.
On December 21, 2015 counsel for Plaintiff Bobcar wrote to Defendant
Aardvark. A copy of that letter is attached as Exhibit 8.

62.
In the December 21st letter, counsel for Plaintiff notified Defendant of
Bobcars intellectual property, including, but not limited to, the patents-in-suit.
63.
Counsel for Plaintiff also notified Defendant that it was infringing
Bobcars intellectual property.

64.
Counsel for Defendant responded in a letter dated January 5, 2016. A
copy of that letter is attached as Exhibit 9.

65.
In the January 5th letter, counsel for Defendant provided no explanation of
why Defendant Aardvarks accused product does not infringe.

66.
Counsel for Plaintiff Bobcar responded in a letter dated January 12, 2016.
A copy of that letter is attached as Exhibit 10.

67.
In the January 12th letter, counsel for Plaintiff pointed out to counsel for
Defendant that, with respect to the January 5th letter, there is not a single detail in your
letter supporting your alleged non-infringement position.
68.
Counsel for Defendant Aardvark responded in a letter dated January 19,
2016. A copy of that letter is attached as Exhibit 11.

69.
Counsel for Defendant again did not provide any details of any non-
infringement position.
13
70.
Counsel for Plaintiff responded in a letter dated January 26, 2016. A copy
of that letter is attached as Exhibit 12.

71.
In the January 26th letter, counsel for Plaintiff stated to counsel for
Defendant Aardvark as follows: Upon reviewing your letters, it is likewise apparent that
Aardvarks product infringes Bobcars patents. We pointed out in our January 12, 2016
letter that your January 5th letter did not include even a single detail supporting your
alleged non-infringement position. In your latest letter, that remains the case.
72.
In the January 26th letter, counsel for Plaintiff requested a response by
February 3rd.
73.
Despite the numerous requests listed above, Defendants counsel was still
unable by that date to provide any justification for its allegations of non-infringement.
74.
In fact, counsel for Defendant did not provide a response of any form.
75.
Nonetheless, Defendant has deliberately continued to engage in its
infringing activities using its infringing product.

76.
Even though Defendants own counsel was unable after numerous
requests to provide even a single detail of an alleged non-infringement position,

Defendant has continued its accused activities.
77.
Defendant has knowledge of Bobcars patents, and knowledge of an
objectively high risk that its accused vehicle and activities infringe those patents.
78.
From December 21, 2015 onward, Defendant has acted despite an
objectively high likelihood that its actions constituted infringement of a valid patent, and
14
this objectively-defined risk was either known or so obvious that it should have been
known to the Defendant.
79.
Prior to December 21, 2015 Defendant was on constructive notice of
Bobcars patent rights.

80.
Upon information and belief, prior to December 21, 2015 Defendant was
likewise aware of Bobcars products and intellectual property.

81.
Upon information and belief, Defendant nonetheless chose to infringe
prior to December 21, 2015 despite an objectively high likelihood that its actions
constituted infringement of a valid patent, with this objectively-defined risk being either
known or so obvious that it should have been known to the accused infringer.
82.
Defendants actions constitute willful infringement under the current legal
standard, and any future standards of law applicable thereto.

83.
Defendants activities are, and have been, in bad faith.
84.
Defendant has used its infringing promotional vehicles to advertise,
market, and promote third party products to Bobcars detriment, offering itself as a
cheaper alternative to Bobcar.
85.
Defendant has used its infringing promotional vehicles to advertise,
market, and promote Defendants infringing product to Bobcars customers and potential
customers.
86.
Defendant is and has been knowingly harming Bobcars business, using
Bobcars own intellectual property.
15
87.
Defendants actions have caused and are causing irreparable damage to
Bobcar.
88.
Bobcar has been damaged by Defendants bad faith activities and will
continue to be damaged unless Defendant is restrained and enjoined by this Court.

89.
Bobcar has no adequate remedy at law.
90.
Bobcar has been damaged by Defendants illegal actions in an amount to
be determined by a jury and this Court, including recovery and relief for Bobcars lost
sales, lost profits, price erosion, and damage to its reputation and good will, and/or a
disgorgement of Defendants revenues and profits, and recovery of Bobcars attorneys
fees and costs.
COUNT I
PATENT INFRINGEMENT:
(35 U.S.C. 101 et seq.)
91.
Bobcar repeats and re-alleges each and every allegation contained in the
preceding paragraphs as if fully set forth herein.

92.
This claim arises under 35 U.S.C. 101 et seq.
93.
This Court has jurisdiction over this claim pursuant to 28 U.S.C. 1331.
94.
Defendants acts constitute infringement of the 461, 854, 215, 353, and
823 patents, under 35 U.S.C. 271.

95.
Defendants acts constitute direct literal infringement, and/or infringement
under the doctrine of equivalents, of each of Bobcars design patents, and at least claim 1
of each of Bobcars utility patents.
96.
Defendants acts likewise constitute inducement of infringement.

16
97.
Upon information and belief, Defendant is inducing third parties to engage
in infringement of Bobcars patents.

98.
Upon information and belief, Defendant has engaged or is engaging in an
affirmative act to encourage the manufacturer of the accused product to manufacture the
accused product and thereby infringe Bobcars patents-in-suit.
99.
Upon information and belief, Defendant has and has had specific intent to
induce infringement of Plaintiffs patents.

100.
Upon information and belief, Defendant has and has had actual knowledge
that the induced acts constitute patent infringement, or, has and has had willful blindness
thereto.
101.
Defendants acts of infringement were and are willful and deliberate.
102.
Defendant has profited from its infringing activities.
103.
As a result of Defendants conduct, Bobcar has been substantially harmed.
Bobcar has suffered, and continues to suffer, substantial damages as a result of

Defendants bad faith activities. Bobcar has also suffered actual damages, including lost
profits, and price erosion, and has been forced to retain legal counsel and pay costs of
court to bring this action.
COUNT II
LANHAM ACT TRADEMARK INFRINGEMENT
AND UNFAIR COMPETITION:
(15 U.S.C. 1125(a))
104.
preceding paragraphs, as if fully set forth herein.

105.
This claim arises under the Lanham Act, 15 U.S.C. 1051 et seq.
17
106.
107.
Defendants infringing trade dress is designed and intended to mislead
consumers.
108.
Defendant is intentionally using trade dress which is confusingly similar to
Bobcars trade dress in a manner that has caused and is likely to cause confusion, or to
cause mistake, or to deceive as to the affiliation, connection, or association of Defendant
with Bobcar, or as to the origin, sponsorship, or approval of Defendants goods by
Bobcar.
109.
Defendants activities, in selling and offering for sale promotional vehicles
with trade dress which is confusingly similar to Bobcars trade dress, constitute unfair
competition, false designation of origin, in violation of Section 43(a) of the Lanham Act,
15 U.S.C. 1125(a).
110.
Defendants acts of infringement were and are willful and deliberate.
111.
Defendant has profited from its illegal and bad faith activities.
112.
As a result of Defendants conduct, Bobcar has been substantially harmed.
Bobcar has suffered, and continues to suffer, substantial damages as a result of

Defendants bad faith activities. Bobcar has also suffered actual damages, including lost
profits, and price erosion, and has been forced to retain legal counsel and pay costs of
court to bring this action.
COUNT III
UNFAIR COMPETITION UNDER NEW YORK LAW
113.
preceding paragraphs, as if fully set forth herein.

18
114.
This claim arises under the common law of the State of New York.
115.
116.
Bobcar has created its designs, promoted its promotional vehicles, and
created its marketing programs, through years of extensive time, labor, skill and money.
117.
Defendant has misappropriated the results of that labor and skill and those
expenditures of Bobcar.
118.
Defendant has used trade dress that is confusingly similar to Bobcar, for
identical or highly similar goods, in competition with Bobcar, gaining an unfair

advantage, because Defendant bore little or no burden of expense of development and
promotion of those goods.
119.
Defendant has also used the commercial and advertising programs of
Bobcar.
120.
An example of one such program is an advertising and marketing program
designed and developed by Bobcar, in which Bobcars promotional vehicle trade dress
described above would be used in conjunction with a vehicle that jointly promotes the
products and services of two separate companies, Samsung and T-Mobile.
121.
Such program was conceived of, designed, and developed by Bobcar.
122.
Defendant has misappropriated Bobcars trade dress and advertising and
marketing ideas and program, by use of Bobcars promotional vehicle trade dress
described above in conjunction with an infringing vehicle that jointly promotes the
products and services of both Samsung and T-Mobile.
19
123.
By knowingly using confusingly similar product trade dress for identical
or highly similar goods, to compete against Bobcars goods, Defendant has

misappropriated a commercial advantage belonging to Bobcar.
124.
By knowingly using Bobcars trade dress for identical or highly similar
goods, with the advertising and marketing program that Bobcar developed, to compete
against Bobcars goods, Defendant has misappropriated a commercial advantage
belonging to Bobcar.
125.
Defendant has deliberately used Bobcars intellectual property and ideas
in bad faith, to undercut Bobcar and injure Bobcar and its business.
126.
Defendants activities constitute bad faith misappropriation of the labors
of Bobcar which is likely to cause confusion, and to deceive purchasers as to the origin of
the goods.
127.
Defendants actions have caused significant commercial damage to
Bobcar.
128.
Defendants conduct is illegal and actionable under the common law of
unfair competition of the State of New York.

129.
Bobcar has been injured by Defendants illegal actions and is entitled to
the remedies provided under New York law.

DAMAGES
130.
Bobcar is being irreparably harmed by Defendants infringing activities,
and has no adequate remedy at law.
20
131.
Bobcar has been extensively damaged by Defendants intellectual property
infringement in an amount to be determined by a jury and this Court.

132.
Bobcar seeks damages as a result of Defendants infringement which
include, but are not limited to: Bobcars lost sales, lost profits, price erosion and damage
to its reputation and good will; and/or disgorgement of Defendants revenues and profits;
from Defendants sales of infringing promotional vehicles, associated parts thereof, and
from convoyed sales.
133.
Bobcar requests that this honorable Court assess enhanced damages
against Defendant in the fullest amount permissible by law, including, but not limited to,
treble damages under federal law and punitive damages under New York law, and award
Bobcar its attorneys fees, in view of the willful, egregious, malicious, and extensive
nature of Defendants bad faith activities complained of herein, and in view of the
numerous violations, the willful nature of the violations, and the significant damage to
Bobcar, as set forth above.
JURY TRIAL DEMAND
134.
Pursuant to Rule 38, Fed. R. Civ. P. Bobcar hereby demands a trial by jury
on all issues set forth herein that are properly triable to a jury.
PRAYER FOR RELIEF
WHEREFORE, Bobcar respectfully requests that the Court, upon final hearing of
this matter, grant the following relief against Defendant:
A.
That Defendant be adjudged to have engaged in patent infringement of

Bobcars rights under United States Patent No. 7,942,461 B2 (the 461
21
patent), under 35 U.S.C. 101 et seq.;

B.

C.

D.

Bobcars rights under United States Design Patent No. D652,353 (the
353 patent), under 35 U.S.C. 101 et seq.;
E.

Bobcars rights under United States Design Patent No. D678,823 (the
823 patent), under 35 U.S.C. 101 et seq.;
F.
That Defendant be adjudged to have engaged in federal unfair competition

and trademark infringement under Section 43 of the Lanham Act, 15
U.S.C. 1125 and unfair competition and trademark infringement under
the common law and statutory law of the State of New York.
G.
That the 461, 854, 215, 353, and 823 patents were duly and legally
issued by the U.S. Patent Office, and are valid and enforceable;
H.
That Defendant, its officers, agents, servants, employees, representatives,

distributors and all persons in concert or participation with Defendant be
enjoined pursuant to 35 U.S.C. 283 from engaging in any activities which
22
infringe Bobcars rights in the patents under 35 U.S.C. 271;

I.

distributors, and all persons in concert or participation with Defendant be
enjoined pursuant to 35 U.S.C. 283 from making, using, importing,
exporting, offering for sale and selling any vehicles and engaging in any
activities which directly infringe the patents under 35 U.S.C. 271;
J.

preliminarily and permanently enjoined from offering for sale, selling or
marketing merchandise that tends in any way to deceive, mislead or
confuse the public into believing that Defendants merchandise in any way
originates with, is sanctioned by, or is affiliated with Bobcar;
K.

preliminarily and permanently enjoined from otherwise competing
unfairly with Bobcar;
L.

preliminarily and permanently enjoined from engaging in further acts of
misrepresentation regarding Bobcar and Bobcars promotional vehicles;
M.

23
preliminarily and permanently enjoined from engaging in further

deceptive and unfair business practices with respect to Bobcar;
N.

preliminarily and permanently enjoined from engaging in further acts
infringing Bobcars rights under New York law;
O.
That the Defendant be directed to file with this Court and serve on Bobcar
within thirty (30) days after service of the injunction, a report in writing,
under oath, setting forth in detail the manner and form in which the
Defendant has complied with the injunction;
P.
That Defendant be required to account for and pay over to Bobcar any and
all revenues and profits derived by it and all damages sustained by Bobcar
by reason of the acts complained of in this Complaint, including an
assessment of interest on the damages so computed, and that the damages
be trebled pursuant Section 35 of the Lanham Act, 15 U.S.C. 1117, as
well as 35 U.S.C. 284 and 289, and all further applicable law;
Q.
That Defendant be required to account for and pay over to Bobcar such
actual damages as Bobcar has sustained as a consequence of Defendants
infringement, and that the damages relating to patent infringement be
trebled pursuant to 35 U.S.C. 284, and to account for and pay to Bobcar
all of Defendants gains, revenues, profits and advantages attributable to
or derived by Defendants infringement.
24
R.
That each such award of damages be enhanced to the maximum available

for each infringement in view of each of Defendants willful infringement
of Bobcars rights;
S.
That the Defendant be required to deliver up for impoundment during the

pendency of this action, and for destruction thereafter, all copies of the
infringing materials in its possession or under its control and all materials,
including all molds, master models and other materials used for making
same;
T.
That Bobcar be awarded punitive or exemplary damages under New York

law because of the egregious, malicious, and tortious conduct of
Defendant complained of herein;
U.
That Bobcar recover the costs of this action including its expenses and
reasonable attorneys fees pursuant to 15 U.S.C. 1117, 35 U.S.C. 285
and all further applicable law, because of the deliberate and willful nature
of the infringing activities of Defendant sought to be enjoined hereby,
which make this an exceptional case warranting such award;
V.
That Bobcar be awarded pre-judgment and post-judgment interest;
W.
That Bobcar obtain all further relief permitted under the laws of the United
States and the State of New York; and,
X.
That Bobcar obtain all such other and further relief as the Court may deem
just and equitable.
25
Dated: March 31, 2016
/s/Morris E. Cohen
Morris E. Cohen (MC-4620)
Limor Wigder (LW-1986)
GOLDBERG COHEN LLP
1350 Avenue of the Americas, 3rd Floor
New York, New York 10019
(646) 380-2087 (phone)
(646) 514-2123 (fax)
MCohen@GoldbergCohen.com
LWigder@GoldbergCohen.com
26
CERTIFICATE OF SERVICE
I hereby certify that on March 31, 2016, a true and correct copy of the foregoing
was served on counsel of record via the Court's ECF system.
Dated: March 31, 2016
/s/ Morris E. Cohen

Morris E. Cohen
27
Case 1:16-cv-00885-JPO Document 10-1 Filed 03/31/16 Page 1 of 11
December 21, 2015

Via Federal Express
President
Aardvark Event Logistics, Inc.
1979 Pioneer Road
Huntingdon Valley, PA 19006
Re:
Infringement of Bobcar Medias Intellectual Property
Dear Sir/Madam:
We represent Bobcar Media LLC (Bobcar) in the above-captioned matter. Bobcar is the
owner of United States Patent No. 7,942,461, Patent No. 8,220,854, Patent No. 8,690,215, Design
Patent No. D652,353, Design Patent No. D678,823, and further related intellectual property.
It has come to our attention that your company is using Bobcars patented articles and
designs for promotional vehicles, and upon information and belief, is making, offering for sale,
selling, and/or importing the same all without Bobcars authorization. Our clients inventions
are being used, for example, in connection with your Glade Aardys promotional vehicle, along
with many others, as illustrated at length on your website www.aardy.com.
Accordingly, we hereby demand that you immediately cease and desist from any and all
illegal use, manufacture, offer for sale, sale, and/or importing of any products incorporating our
clients patented inventions.
In addition, please contact us with a response by Wednesday January 6, 2016, so that
your infringement, and the damages associated therewith, can be addressed without delay. We are
hoping to resolve this matter with voluntary compliance and cooperation on your part.
Our client has directed us to take vigorous action to protect its valuable intellectual property
rights, and to prevent further infringement of its rights. In the event that an amicable settlement
of your violations is not achieved, Bobcar intends to file a lawsuit in the U.S. District Court for
the Southern District of New York to redress your infringement. Accordingly, Bobcar hereby
reserves all rights it has under 35 U.S.C. 271, and all further applicable law and equity. This
includes the right to a court-ordered injunction, and to costs, attorneys fees, and damages, which
themselves may be increased for willful infringement. Such willful infringement, includes, but is
not limited to, any infringement that you engage in after the date of this letter.
Sincerely yours,
/s/ Morris E. Cohen
Morris E. Cohen
Phone:
(215) 569-5619
Fax:
(215) 832-5619
Email:
Pecsenye@BlankRome.com
January 5, 2016
VIA E-MAIL AND FIRST CLASS MAIL: <mcohen@goldbergcohen.com>
Morris E. Cohen
Goldberg Cohen LLP
1350 Avenue of the Americas
Suite 425
New York, NY 10019
Re:
Allegations of Infringement of Bobcar Medias

Intellectual Property by Aardvark Event Logistics, Inc.
Dear Mr. Cohen:

This firm represents Aardvark Event Logistics, Inc. (AEL)
in connection with certain intellectual property matters. We are
in receipt of your letter of December 21, 2015 alleging that our
client infringes certain patents owned by Bobcar Media LLC. As
you are no doubt aware, allegations of patent infringement are a
very serious matter. Our client has the utmost regard for the
intellectual property rights of others, and thoroughly
investigates all allegations of infringement. In fact, the
configuration of our clients Aardy promotional vehicles is
itself the subject of a federally-registered trademark. See U.S.
Trademark Reg. No. 4,719,992.
Although this letter is not intended as a detailed
discussion of the merits of your allegations, we wish to
emphasize a few critical points. First, we have reviewed the
three utility patents you reference, and we are not convinced
that anything disclosed therein constitutes patentable subject
matter, or that the patents would withstand any level of
scrutiny in litigation. Companies have engaged in the practice
of advertising via self-propelled vehicles for decadesvirtually
One Logan Square 18th & Cherry Streets Philadelphia, PA 19103
www.BlankRome.com
Boca Raton Cincinnati Fort Lauderdale Houston Los Angeles New York Philadelphia Pittsburgh Princeton San Francisco Shanghai Tampa Washington Wilmington
110106.00602/101856643v.1
January 6, 2016
Page 2
since the advent of the automobile. A quick Internet search
further confirms that several of these concepts are the subject
of granted U.S. and foreign patents that predate the earliest
priority date of the cited patents by several years. In view of
such a vast landscape of prior art, it would be all but
impossible to maintain the presumptive validity of your clients
patents if they were ever litigated. Moreover, with respect to
the design patents cited, none of our clients promotional
vehicles can be considered substantially the same as the
patented design(s), particularly when the two are compared in
the context of the prior art mentioned above.
In an effort to resolve this matter amicably, we have
endeavored to provide you with a substantive response prior to
the date requested. However, our client cannot agree to any of
the demands set forth in your letter, as it does not appear to
us that any of the allegations of infringement are even remotely
warranted. Should it become necessary, our client is fully
prepared to mount a vigorous defense to substantiate its own
intellectual property rights in litigation, and to invalidate
your clients putative patent rights.
Nothing contained in this letter is intended to be, or
should be considered as, an acknowledgement of our clients
obligation to respond to your letter, an admission of any fact
alleged therein, or a waiver of any rights held by AEL, all of
which are expressly reserved.
Sincerely yours,
TIMOTHY D. PECSENYE
TDP:smj
cc: Aardvark Event Logistics, Inc.
www.BlankRome.com
110106.00602/101856643v.1
January 12, 2016

Via Email (Pecsenye@BlankRome.com)
Timothy D. Pecsenye
Blank Rome
One Logan Square
18th & Cherry Streets
Philadelphia, PA 19103
Re:
Aardvark Infringement of Bobcar Medias Intellectual Property
Dear Mr. Pecsenye:

Thank you for your letter of January 5, 2016.
With respect to infringement, a comparison of Bobcars patent claims to Aardvarks
product makes it very apparent that Aardvarks product falls within those claims; and, therefore,
infringes Bobcars patents. We see no basis for concluding otherwise. In fact, there is not a single
detail in your letter supporting your alleged non-infringement position.
Regarding validity, your letter asserts that Bobcars patents are invalid based on a quick
Internet search, and asserts in as vague terms as possible that there is allegedly prior art that
predates our clients earliest priority date. Yet again, however, no details are provided. In fact,
not a single prior art reference was cited in your letter.
Accordingly, we respectfully cannot give your assertions any weight whatsoever.
Furthermore, as you know, Bobcars patents are not directed to the general concept of any
advertising via a self-propelled vehicle. Rather, the patents are legally directed to the specific
subject matter recited in their claims. In the process of examining Bobcars patent claims, the U.S.
Patent Office conducted detailed searches of the prior art when it examined each and every patent.
Thus, the Patent Office already analyzed the prior art, and did so at least six times. Based upon its
in-depth searches, the Patent Office concluded in each and every case that the claims of Bobcars
patents do recite patentable subject matter, and it issued those patents. Thus, Bobcars patents are
now entitled to a presumption of validity as a matter of law. See, 35 U.S. Code 282.
As a result, if you have a particular basis for your allegations, we would ask you to forward
those details to our attention so that we can evaluate them. So as to address Bobcars concerns as
soon as possible, please provide us with a response by Tuesday January 19, 2016.
Please note that this letter is without prejudice to Bobcars rights, all of which are expressly
reserved herein.

Letter of Jan. 12, 2016 to T Pecsenye
Page 2 of 2
Sincerely yours,
/s/ Morris E. Cohen
Morris E. Cohen
cc:
Bobcar Media LLC
Phone:
(215) 569-5619
Fax:
(215) 832-5619
Email:
Pecsenye@BlankRome.com
January 19, 2016

VIA E-MAIL: <mcohen@goldbergcohen.com>
Morris E. Cohen
Goldberg Cohen LLP
1350 Avenue of the Americas
Suite 425
New York, NY 10019
Re:
Allegations of Infringement of Bobcar Medias

Intellectual Property by Aardvark Event Logistics, Inc.
Dear Mr. Cohen:

We write further to your letter of January 12, 2016 in
which you maintain that our client infringes patents assigned to
Bobcar Media LLC. We are disappointed that you continue to
threaten our client with litigation, particularly when the
claims are directed to a mobile kiosk/showroom concept that has
been practiced for decades.
Your letter contends that Bobcars patents have been
examined in-depth by the U.S. Patent and Trademark Office in
view of the prior art, but our own review of the patents
confirms that the patent examiner named on the utility patents
did not raise a single prior art rejection during prosecution.
Moreover, establishing infringement of a design patent is
exceedingly difficult, and it is readily apparent that the
claimed ornamental designs are not at all similar to our
clients Aardy vehicle, much less substantially the same as the
patent laws require the patent owner to demonstrate.
As you know, the AIAs post-grant proceedings provide for
both ex parte and inter partes review of issued patents at a
One Logan Square 18th & Cherry Streets Philadelphia, PA 19103
www.BlankRome.com
140903.00604/101899682v.1
January 19, 2016

Page 2
fraction of the cost of litigation. Given that none of the
patents were substantively examined in the first instance, it is
almost certain that the Patent Office would opt to review or reexamine the patents if our client were to mount a challenge
against them in response to any assertion of the claims against
our client. We further note that post-grant proceedings require
only a showing that there is a substantial new question of
patentability or that there is a reasonable likelihood that
the claims are invalid over the prior art. Finally, the success
rate of post-grant challenges speaks for itself, and we are
convinced that a post-grant challenge would succeed in this
case, and on these patents, should it become necessary.
Attached please find three U.S. patent documents that are
of particular relevance to the claims recited in the utility
patents you reference: U.S. Patent Nos. 6,585,305 (the 305
patent) and 7,287,349 (the 349 patent), and U.S. Pat. Pub.
No. 2009/0066106 (the 106 publication). The 349 patent
discloses an advertising assembly that can be mounted to the bed
of a Low-Speed Electric Vehicle, which appears to be the exact
vehicle that the Aardy is modeled after. See, e.g., Fig. 1:
www.BlankRome.com
140903.00604/101899682v.1
January 19, 2016

Page 3
The 349 patent is directed to an advertising assembly that can

be mounted onto the bed of a Low-Speed Electric Vehicle (see
above). The concept of a mobile showroom mounted onto the bed of
a truck (i.e., in place of the advertising display shown above)
was disclosed in the 305 patent as early as 2001: A mobile
showroom for displaying merchandise such as furniture and
clothing, is comprised of a drivable truck body that has a
freight section converted to a merchandise showroom with seethrough panels and, optionally, scrolling displays that can be
used to showcase the merchandise or show different types of
merchandise, or to provide transparent sections through which
the merchandise itself may be viewed. 305 patent at Fig. 1 and
Abstract.
www.BlankRome.com
140903.00604/101899682v.1
January 19, 2016

Page 4
The 305 patent also discloses that As described below, the

mobile showroom 10 comprises a vehicle 12 that has a drivers
cabin 15 and a freight cabin 20. The freight cabin 20 is
illustrated to be substantially of rectangular shape, With a
superstructure 14, defined by various side walls or panels,
including a rear wall 22, a drivers-side panel 24 and a
passenger-side panel 26, as well as a front panel 34. These
walls or panels define an interior space 16, in which a
collection of merchandise, such as furniture and the like, is
intended to be arranged. The interior 16, which is the actual
showroom, is optionally separated from the driver cabin 16 by a
storage space 18, to which access may be had via side door 36
that can be opened by handle 38. Access to the showroom 16 may
be provided through a rear door 21, having a door handle 23 and
supported by hinges 25. 305 patent at 3:10-25.
Finally, the 106 publication discloses a multifunctional
compartment for vehicles with movable panels, including
specifically to be used for various special vehicles and can be
extended to achieve additional functions, for instance,
advertising when loading goods. 106 publication at [0007] and
Figs. 5a and 5b.
www.BlankRome.com
140903.00604/101899682v.1
January 19, 2016

Page 5
In view of the above references, it would have been a matter of

routine experimentation to substitute the mobile showroom and/or
a multifunction compartment for the advertising display of the
349 patent in order to display merchandise and/or additional
advertising. However, our review of the relevant prior art is
www.BlankRome.com
140903.00604/101899682v.1
January 19, 2016

Page 6
still ongoing, and any contentions made herein should in no way
be seen as an admission or adoption of any particular claim
scope or construction, or as any admission that any particular
element is met in any particular way, or any representation that
the prior art cited is the most applicable or analogous art of
record.
We are hopeful that this correspondence resolves any
question as to our position regarding the merits of your
infringement claims. As I stated in my earlier letter, we are
quite certain our client does not infringe any valid claims of
the patents you reference, and nothing contained in this letter
is intended to be, or should be considered as, an
acknowledgement of our clients obligation to respond to your
letter, an admission of any fact alleged therein, or a waiver of
any rights held by our client, all of which are expressly
reserved.
Sincerely yours,
TIMOTHY D. PECSENYE
TDP:smj
cc: Aardvark Event Logistics, Inc.
Attachments
www.BlankRome.com
140903.00604/101899682v.1
January 26, 2016

Via Email: Pecsenye@BlankRome.com
Timothy D. Pecsenye
Blank Rome LLP
One Logan Square
130 North 18th Street
Philadelphia, PA 19103-6998
Re:
Aardvark Infringement of Bobcar Medias Intellectual Property
Dear Mr. Pecsenye:

We have received your letter of January 19, 2016 on behalf of your client Aardvark Event
Logistics, Inc. (Aardvark). Your latest letter continues to make it clear that Aardvarks alleged
defenses are entirely without merit.
In your letter of January 5, 2016, you had alleged that Bobcars patents were invalid due
to a vast landscape of prior art including references around virtually since the advent of the
automobile. But when we requested specifics as to this vast landscape, you subsequently
forwarded us a mere three references.
In fact, none of those references detract in any way from the strong presumption of validity
attached to our clients patents. Indeed, your letter deliberately avoids reference to the claim
language of Bobcars utility patents, and likewise avoids the scope of the claim of each design
patent.
The closest reference to a patent claim in your January 19, 2016 letter is the single sentence
that Bobcars claims are directed to a mobile kiosk/showroom concept that has been practiced for
decades. However, absolutely no evidence thereof is provided. Nor does your letter provide an
analysis of even one patent claim. Yet, the only way to properly conduct a legal analysis is with
reference to the specifics of the claims.
Moreover, it is very revealing that the letter of January 19th admits that your review of the
relevant prior art is still ongoing. That would not be necessary if you had any actual grounds for
your allegation that our clients inventions had been practiced for decades. The fact that you
need to continue your review is because you have no real evidence of invalidity.
Upon reviewing your letters, it is likewise apparent that Aardvarks product infringes
Bobcars patents. We pointed out in our January 12, 2016 letter that your January 5th letter did not
include even a single detail supporting your alleged non-infringement position. In your latest
letter, that remains the case.
Accordingly, we expect Aardvark to immediately cease and desist its illegal activity, and
to respect Bobcars patent rights. Please confirm by Wednesday February 3rd that Aardvark will
be discontinuing its illegal use of Bobcars patented inventions and designs, without any further
delay.
Likewise, we request an accounting of all revenues, profits, and gains relating to
Aardvarks infringing vehicles. Specifically, we require:
1. The total quantity of infringing vehicles manufactured by or for Aardvark, and the
identity of any manufacturer and/or other third party involved in the manufacturing or
distribution of the infringing vehicles.
2. The total quantity of infringing vehicles used in the past by Aardvark, and the identity of
each agency and customer for whom promotional activities were conducted using those
vehicles, and/or to whom those vehicles were provided.
3. An accounting of Aardvarks total revenues and gross profits relating to the use,
manufacture, sale and/or offer for sale of the infringing vehicles, including a breakdown
of the revenues generated from Aardvarks use of the infringing vehicles to promote third
party products, with the details of the infringing uses such as the marketing campaigns.
4. The total number of infringing vehicles that Aardvark has in its present inventory.
Please provide this information to us by February 3rd, or confirm that it is being gathered
and will be promptly forwarded to our attention.
This letter is without prejudice to Bobcars rights, including the right to pursue any and all
legal remedies available to it at any time without further notice.
Sincerely yours,
/s/ Morris E. Cohen
Morris E. Cohen

Bobcar v. Aardvark - Amended Complaint

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Bobcar v. Aardvark - Amended Complaint

Uploaded by

Copyright:

Available Formats

Case 1:16-cv-00885-JPO Document 10 Filed 03/31/16 Page 1 of 27

UNITED STATES DISTRICT COURT

Civil Action No. 1:16-cv-00885

(JURY TRIAL DEMANDED)

AARDVARK EVENT LOGISTICS, INC.

Case 1:16-cv-00885-JPO Document 10 Filed 03/31/16 Page 2 of 27

and/or importing of promotional vehicles, and conduct of activities, that infringe

Venue is proper in this Court, pursuant to 28 U.S.C. 1391, and 28

Plaintiff Bobcar Media, LLC is a limited liability company organized and

Case 1:16-cv-00885-JPO Document 10 Filed 03/31/16 Page 3 of 27

Defendant Aardvark Event Logistics, Inc. (Defendant or Aardvark), is

new inventions relating to promotional vehicles.

On April 8, 2014 United States Patent No. 8,690,215 B2 entitled Method

Case 1:16-cv-00885-JPO Document 10 Filed 03/31/16 Page 4 of 27

Case 1:16-cv-00885-JPO Document 10 Filed 03/31/16 Page 5 of 27

Bobcar was the first to introduce the combination and arrangement of

features above for a promotional vehicle into interstate commerce.

The combination and arrangement of features above constitutes the

distinctive trade dress of Plaintiff Bobcar.

Bobcars trade dress is inherently distinctive.

Bobcars trade dress also has acquired distinctiveness, also known as

Bobcars trade dress has acquired distinctiveness as demonstrated by, inter

Bobcars trade dress is also non-functional.

Case 1:16-cv-00885-JPO Document 10 Filed 03/31/16 Page 6 of 27

The Bobcar trade dress is a combination and arrangement of features

Bobcars trade dress is not essential to the use or purpose of a promotional

There are numerous alternative means to perform the function of

promoting goods and services without using Bobcars trade dress.

As a result of Plaintiffs efforts and promotional, advertising, and

During the term of the Bobcars patents, Defendant has manufactured or

Case 1:16-cv-00885-JPO Document 10 Filed 03/31/16 Page 7 of 27

Defendants articles that infringe Bobcars patents include Defendants

Aardy promotional vehicles. Examples of Defendants infringing promotional vehicles

Defendants accused promotional vehicles infringe at least claim 1 of each

Claim 1 of the 461 patent recites an article of manufacture, comprising:

(a) a self-propelled moving vehicle, said self-propelled moving vehicle

Case 1:16-cv-00885-JPO Document 10 Filed 03/31/16 Page 8 of 27

Claim 1 of the 854 patent recites an article of manufacture, comprising:

(a) a self-propelled moving vehicle, said self-propelled moving vehicle

Claim 1 of the 215 patent recites an article of manufacture, comprising:

Case 1:16-cv-00885-JPO Document 10 Filed 03/31/16 Page 9 of 27

(a) a self-propelled moving vehicle, said self-propelled moving vehicle

As shown by the images of the accused product in Exhibit 7, and further

Specifically, as shown in Exhibit 7, the accused product is a self-propelled

As shown in Exhibit 7, the back of the accused product includes a frame

As also shown in Figure 7, the accused product has a series of panels

Case 1:16-cv-00885-JPO Document 10 Filed 03/31/16 Page 10 of 27

As shown in Exhibit 7, the display platform of the accused product is open

As also shown in Exhibit 7, advertising is provided on the front of at least

Alternatively or additionally, the accused product infringes at least claim 1

of each and every utility patent-in-suit under the doctrine of equivalents.

Defendants accused promotional vehicles also infringe the single claim of

An image of one of Defendants accused products is attached as Exhibit 7

hereto. Further images are located on Defendants website, www.theaardy.com.

Case 1:16-cv-00885-JPO Document 10 Filed 03/31/16 Page 11 of 27

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

An ordinary observer would see the design of Defendants accused

An ordinary observer would likewise see the design of Defendants

An ordinary observer would likewise consider the accused design, in the

In the eye of the ordinary observer, giving such attention as a purchaser

In fact, Defendants accused design is virtually identical, if not identical,

to Plaintiffs patented designs.

Defendants accused design infringes Plaintiffs design patent rights.

In addition to its acts of patent infringement, Defendant also infringes