Brookstone v. Innovative Technology Elecs. - Complaint

Case 1:18-cv-03891 Document 1 Filed 07/06/18 Page 1 of 25 PageID #: 1
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
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:
BROOKSTONE COMPANY, INC. :
BIG BLUE AUDIO, LLC. :
: Civil Case No. _________________
Plaintiffs :
:
v. :
: COMPLAINT AND JURY
INNOVATIVE TECHNOLOGY : DEMAND
ELECTRONICS, LLC :
:
Defendant :
:
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Plaintiffs Brookstone Company, Inc. and Big Blue Audio, LLC, for their Complaint
against Defendant Innovative Technology Electronics, LLC (“Innovative Technology
Electronics” or “Defendant”), state and allege as follows:
THE PARTIES
1. Brookstone Company, Inc. is a New Hampshire corporation with its principal
place of business at One Innovation Way, Merrimack, New Hampshire 03054. Brookstone
Company, Inc. is in charge of corporate administrative, operational, management, and oversight
functions for the Brookstone family of companies, which owns and operates the well-known
Brookstone chain of retail stores, and sells Brookstone products through these stores, the website
www.brookstone.com and other sales channels. Brookstone Company, Inc. and/or the
Brookstone family of companies are hereinafter referred to as “Brookstone.”
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2. Big Blue Audio, LLC is a New Hampshire limited liability company with its
principal place of business at One Innovation Way, Merrimack, New Hampshire 03054. Big
Blue Audio is a subsidiary of Brookstone.
3. Innovative Technology Electronics is a Delaware limited liability company with
its principal place of business at 1 Channel Drive, Port Washington, New York 11050.
NATURE OF ACTION AND JURISDICTION
4. This is an action for design patent infringement, trade dress infringement and
unfair competition brought pursuant to 35 U.S.C. § 271, Section 43(a) of the Lanham Act (15
U.S.C. § 1125(a)), and the common law of the State of New York, as well as for deceptive trade
practices brought pursuant to the New York General Business Law (“N.Y. GBL”), N.Y. GBL §
349.
5. This Court has jurisdiction over this action under Section 39 of the Lanham Act,
15 U.S.C. § 1121, and Title 28 of the United States Code, §§ 1331 and 1338, and supplemental
jurisdiction over Plaintiff’s state law claims under 28 U.S.C. § 1367(a). This Court also has
subject matter jurisdiction pursuant to 28 U.S.C. § 1332 because the matter in controversy in this
action exceeds the sum or value of $75,000, exclusive of interest and costs, and is between a
New Hampshire corporation and a Delaware limited liability company.
6. Venue is proper in this district under 28 U.S.C. §§ 1391(b) and 1400 because it is
the judicial district in which Defendant resides, where Defendant has committed acts of
infringement and where Defendant has a regular and established principal place of business.
GENERAL ALLEGATIONS
Brookstone’s Big Blue Trade Dress
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7. Brookstone has been in the business of selling consumer products, gadgets, and
electronics equipment since 1965. Since its inception in 1965, Brookstone’s product offerings
have vastly expanded such that it is now well known in the industry for its provision of a wide
range of goods directed at wellness, travel, and entertainment.
8. Brookstone founded its subsidiary Big Blue Audio to design and develop audio
speakers. In 2011, Brookstone sold its first Big Blue Audio speakers, which have since grown to
become some of Brookstone’s most popular and successful products. Brookstone currently
features Big Blue Audio speakers on its website as the “Big Blue Collection” (http://
https://www.brookstone.com/audio-tech/speakers/big-blue-collection).
9. Since 2011, Brookstone has sold a number of products in the Big Blue Collection.
Consistent with its name, the Big Blue Collection of products prominently feature a big blue
circular control button comprising a control button encircled by an LED ring that illuminates in
the color blue to signal device status, and which is located at or near the center of the front or top
face of the product (“Big Blue Trade Dress.”) Over the years, the products featuring the Big
Blue Trade Dress include the following:
Big Blue Studio:
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Big Blue Live: Big Blue Tabletop:
Big Blue Party™: Big Blue Go:
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Big Blue Unplugged Wireless: Big Blue Mini Wireless:
Big Blue Live2:
5
Big Blue StudioB: Big Blue Party™ 360:
Big Blue Party™ X:
10. Since 2011, Brookstone has consistently featured the Big Blue Trade Dress in the
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Big Blue Collection.
11. The Big Blue Collection is a well-known product line of Brookstone with its own
dedicated section on Brookstone’s website (https://www.brookstone.com/audio-
tech/speakers/big-blue-collection). The brand name “Big Blue” immediately draws the
consumer’s attention to the Big Blue Trade Dress.
12. Brookstone has expended significant resources promoting, advertising and
marketing its Big Blue Collection, which features the Big Blue Trade Dress. The advertisements
for the Big Blue Collection uniformly and prominently feature the Big Blue Trade Dress.
13. Brookstone sells the Big Blue Collection through a number of different channels,
including Brookstone retail stores, the Brookstone online store, Amazon, Walmart, Bon Ton,
Macy’s, Sears, Newegg, Bloomingdales, Outdoor Speaker Supply, and Target.
14. Since 2011, Brookstone has sold a substantial number of speakers from the Big
Blue Collection featuring the Big Blue Trade Dress.
15. Brookstone is not aware of any other third parties that use the Big Blue Trade
Dress as a brand indicator for speaker products.
16. Because of the substantially exclusive and continuous use of the Big Blue Trade
Dress for approximately six years, the Big Blue Trade Dress has acquired considerable value and
has become well known among the consuming public and the trade as identifying and
distinguishing Brookstone as the exclusive source of the Big Blue Trade Dress.
17. Based on the substantial and extensive branding and promotional efforts by
Brookstone, its continuous and exclusive use of the Big Blue Trade Dress for six years, and the
market penetration of the Big Blue Trade Dress in the speaker field, customers have come to
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associate the Big Blue Trade Dress with Brookstone.
18. The Big Blue Trade Dress has become distinctive for speakers originating from
Brookstone. As a distinctive mark, Brookstone’s use of the Big Blue Trade Dress serves as a
trademark of Brookstone.
19. The Big Blue Trade Dress is not functional. First, the Big Blue Trade Dress is not
essential to the use or purpose of the article. The blue LED ring surrounding the control button
need not have been blue, but could have also appeared in other colors, such as white, red or
green. Likewise, the shape (circular) and location (center-faced) of the Big Blue Trade Dress is
not functional as it is not essential to the purpose of the article. Again, for example, the design
could have comprised a square control button located in a corner of the device.
20. The Big Blue Trade Dress likewise does not decrease the cost of manufacture of
the article, or improve its quality. Brookstone’s speakers that incorporate the Big Blue Trade
Dress cost more to manufacture than its speakers that do not incorporate the Big Blue Trade
Dress. The Big Blue Trade Dress does not improve the quality of the speaker, or its ability to
communicate device status. A smaller, differently shaped, differently positioned, and differently
colored illuminated component would have achieved the same function.
21. There a number of alternative designs that could have been adopted by
Brookstone for its Big Blue Trade Dress, including a different size, shape, color, and location.
22. Moreover, other manufacturers that sell wireless speaker products do not use the
Big Blue Trade Dress. These third party speaker patterns use different designs and illuminated
features to indicate device status the speaker. Some examples of alternative designs are included
in the attached Exhibit A. Of the vast number of third party speaker sellers and manufacturers,
8
only Brookstone uses the Big Blue Trade Dress. In view of the number of alternative designs
that are used by third party speaker sellers and manufacturers, Brookstone’s right to use the Big
Blue Trade Dress exclusively does not put competitors at a significant non-reputation-related
disadvantage.
Brookstone’s Big Blue Party™ Trade Dress
23. In 2013, Brookstone began selling the Big Blue Party™ speaker. The Big Blue
Party™ features an upright speaker tower design with a rectangular tower and rounded edges,
top and bottom tower caps that are squared with rounded edges that extend beyond the
circumference of the upright speaker tower, and the Big Blue Trade Dress in the center of the
front speaker face. (“Big Blue Party™ Trade Dress”). Hereinafter, the Big Blue Party™ Trade
Dress and the Big Blue Trade Dress will be collectively referred to as “Brookstone’s Trade
Dress.” The Big Blue Party™ speaker also has a handle, which is attached on the sides of the
top of the tower and extends upwards therefrom.
24. Since the introduction of the first Big Blue Party™ speaker in 2013, Brookstone
has introduced other Big Blue Party™ speakers, including the Big Blue Party™ 360 speaker and
Big Blue Party™ X speaker, both of which were first sold in 2017, and which feature the Big
Blue Party™ Trade Dress (“Big Blue Party™ family of speakers.”) The original Big Blue
Party™ speaker has been consistently sold since 2013, and the Big Blue Party™ 360 speaker and
Big Blue Party™ X speaker have both been consistently sold since 2017.
25. Brookstone has expended significant money and resources promoting, advertising
and marketing its Big Blue Party™ family of speakers that feature the Big Blue Party™ Trade
Dress. The advertisements for the Big Blue Party™ family of speakers uniformly and
9
prominently feature the Big Blue Party™ Trade Dress.
26. Brookstone’s Big Blue Party™ family of speakers are among its most popular
speaker products. Since its introduction to the market in 2013, Brookstone has sold a substantial
number of speakers from the Big Blue Party™, all of which feature the Big Blue Party™ Trade
Dress.
27. Brookstone is not aware of any other third parties that use the Big Blue Party™
Trade Dress as a brand indicator for speaker products.
28. The Big Blue Party™ family of speakers sell for between $180 and $230.
29. Because of the substantially exclusive and continuous use of the Big Blue Party™
Trade Dress for approximately five years, the Big Blue Party™ Trade Dress has acquired
considerable value and has become well known by the consuming public and the industry as
identifying and distinguishing Brookstone as the exclusive source of the Big Blue Party™ Trade
Dress.
30. Based on the substantial and extensive branding and promotional efforts by
Brookstone, its continuous and exclusive use of the Big Blue Party™ Trade Dress for almost five
years, and the market penetration of the Big Blue Party™ Trade Dress in the speaker field,
customers have come to associate the Big Blue Party™ Trade Dress with Brookstone.
31. The Big Blue Party™ Trade Dress has become distinctive for speakers originating
from Brookstone. As a distinctive mark, Brookstone’s use of the Big Blue Party™ Trade Dress
operates as a trademark of Brookstone.
32. The Big Blue Party™ Trade Dress is not functional. First, the Big Blue Party™
Trade Dress is not essential to the use or purpose of the article. The shape and design of the Big
10
Blue Party™ Trade Dress does not improve the overall functionality of the speaker. A
rectangular tower shaped speaker that incorporates Big Blue Party™ Trade Dress is not essential
to the purpose of the article. This is apparent as most third party speaker manufacturers do not
utilize a rectangular tower shaped speaker design, and none of these third party speaker
manufacturers use the Big Blue Party™ Trade Dress. See Exhibit A.
33. The Big Blue Party™ Trade Dress likewise does not decrease the cost of
manufacture of the article, or improve its quality. Brookstone’s speakers that incorporate the Big
Blue Party™ Trade Dress cost more to manufacture than speakers that do not incorporate the Big
Blue Party™ Trade Dress. The Big Blue Party™ Trade Dress does not improve the quality of
the speaker. A differently shaped and styled speaker can likewise produce quality sound.
34. There a number of alternative designs Brookstone could have adopted for its Big
Blue Party™ Trade Dress, including square speakers, round speakers, rectangular speakers, pill-
shaped speakers, cylindrical speakers, etc.
35. Moreover, other manufacturers that sell wireless speaker products do not use the
Big Blue Party™ Trade Dress. These third-party speaker patterns use different shapes and
designs. Some examples of alternative designs are included in the attached Exhibit A. Of the
vast number of third party speaker products, only Brookstone uses the Big Blue Party™ Trade
Dress. In view of the number of alternative designs that are used by third party speaker
manufacturers, Brookstone’s right to use the Big Blue Party™ Trade Dress exclusively does not
put competitors at a significant non-reputation-related disadvantage.
Big Blue Audio’s Big Blue Party™ Design Patent
36. On December 18, 2013, Big Blue Audio filed a design patent application for the
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ornamental features of the Big Blue Party™ speaker. This application registered on July 26,
2016 as U.S. Patent No. D762,193 and is assigned to Big Blue Audio (“the ‘193 Patent.”) See
Exhibit B.
37. FIG. 1 of the ‘193 Patent is reproduced below.
FIG. 1 of the ‘193 Patent claims the features of the Big Blue Trade Dress and the Big Blue
Party™ Trade Dress, in that it features:
• An upright speaker tower design with a rectangular tower and rounded edges,
• A circular component in the center of the front speaker face, and
• Top and bottom tower caps that are squared with rounded edges and that extend beyond
the circumference of the upright speaker tower.
38. The combination of the above noted features of the Big Blue Party™ Trade Dress
are likewise the novel aspects of the ‘193 Patent in view of the prior art.
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Innovative Technology Electronics’ Infringing

Portable 20 Watt Bluetooth Outdoor Weatherproof Rechargeable Wireless Speaker
39. Defendant Innovative Technology Electronics is in the business of selling audio
products.
40. Since at least as early as 2016, Defendant has sold its products through
Brookstone’s retail and online stores. Accordingly, and upon information and belief, Defendant
is well aware of Brookstone’s products, including the Big Blue Collection and the Big Blue
Party™ family of speakers.
41. Upon information and belief, Innovative Technology Electronics first started
selling outdoor stereo speakers in 2016. The outdoor stereo speakers sold in 2016 did not feature
the Big Blue Trade Dress or the Big Blue Party™ Trade Dress. A screenshot from archive.org,
below, depicts the outdoor speakers sold by Innovative Technology Electronics in 2016.
13
42. Upon information and belief, between the end of 2017 and April 2018, after
almost two years of access and exposure to Brookstone’s Big Blue Collection, Big Blue Party™
family of products, Big Blue Trade Dress, and Big Blue Party™ Trade Dress, Innovative
Technology Electronics redesigned its outdoor stereo speakers. The redesigned outdoor stereo
speaker is branded as “Innovative Technology’s Portable 20 Watt Bluetooth Outdoor
Weatherproof Rechargeable Wireless Speaker.” (“Infringing Speaker.”). Upon information and
belief, Defendant’s sale of the Infringing Speaker is an intentional effort to appropriate and trade
on the key features of the Big Blue Trade Dress and Big Blue Party™ Trade Dress that
consumers associate with Brookstone.
43. Defendant’s use of the Infringing Speaker began well after Brookstone adopted its
Big Blue Trade Dress and Big Blue Party™ Trade Dress, and after the ‘193 Patent was filed, all
of which date back to 2012 or 2013.
44. Upon information and belief, the Infringing Speaker is available on a website
owned or controlled by Defendant, www.victrola.com, as well as through larger retailers such as
Walmart and BJs.
45. Upon information and belief, the Infringing Speaker sells for about $80.00.
46. The Infringing Speaker incorporates and infringes the Big Blue Trade Dress, Big
Blue Party™ Trade Dress, and the design of the ‘193 Patent. A side by side comparison of
Brookstone’s Big Blue Party™ speaker and the Infringing Speaker is provided below:
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Big Blue Party™ Infringing Speaker
47. As can be seen from the side by side comparison, the Infringing Speaker
substantially incorporates all of the elements of the Big Blue Trade Dress, specifically:
• A large rounded blue illuminated component located in the center of a face of the
speaker.
48. As can also be seen from the side by side comparison, the Infringing Speaker
substantially incorporates all of the elements of the Big Blue Party™ Trade Dress, specifically:
• An upright speaker tower design with a rectangular tower and rounded edges,
• The Big Blue Trade Dress prominently featured in the center of the front speaker face,
and
• Top and bottom tower caps that are squared with rounded edges and that extend beyond
the circumference of the upright speaker tower.
49. As can be seen by the below side by side comparison, the Infringing Speaker
incorporates the elements of the ‘193 Patent, such that, in the eyes of the ordinary observer, the
Infringing Speaker is substantially the same as the ‘193 patent when the two designs are
15
compared in the context of the prior art.
‘193 Patent, FIG. 1 Infringing Speaker
50. In an effort to resolve this matter without litigation, Brookstone contacted
Defendant by letter dated April 18, 2018 regarding its concerns that the Infringing Speaker
infringed Brookstone and Big Blue Audio’s intellectual property rights, including the ‘193
Patent, which was enclosed with the letter.
51. As a result of this correspondence, Defendant has had actual notice since April 18
2018 of Brookstone and Big Blue Audio’s superior rights and their objection to Defendant’s use
of the infringing trade dress and design. Since receiving such notice, Defendant has taken no
steps to cease infringement and discontinue sales of the Infringing Speaker.
52. Defendant is aware of the vast and valuable goodwill and reputation represented
16
and symbolized by Brookstone’s Big Blue Trade Dress and Big Blue Party™ Trade Dress, and
the design protected by the ‘193 Patent. As a supplier of products to Brookstone, Defendant is
also aware that Brookstone’s consumers and potential consumers rely upon the Big Blue Trade
Dress, Big Blue Party™ Trade Dress, and the design protected by the ‘193 Patent to distinguish
Brookstone’s products and services from the products and services of others.
53. Defendant’s sales of the Infringing Speaker has always been and continues to be
without the permission, consent, or authority of Brookstone and Big Blue Audio.
Effect of Defendant’s Conduct on Brookstone and the Consuming Public
54. Defendant’s Infringing Speaker incorporates 1) the Big Blue Trade Dress, 2) the
Big Blue Party™ Trade Dress and 3) the novel elements of the ‘193 Patent.
55. Defendant’s Infringing Speaker incorporates a design that is confusingly similar
to Brookstone’s Big Blue Trade Dress and Big Blue Party™ Trade Dress. Indeed, the entirety of
Brookstone’s Big Blue Trade Dress and Big Blue Party™ Trade Dress is reproduced in
Defendant’s Infringing Speaker. Thus, the marks used by the respective parties are similar in
sight and commercial impression.
56. Defendant’s Infringing Speaker is the same product as those associated with both
the Big Blue Trade Dress and the Big Blue Party™ Trade Dress. Both parties market, promote,
and sell wireless indoor/outdoor speakers.
57. On information and belief, both Brookstone and Defendant target the same class
of customers, namely, consumers of personal electronic products across the country and in every
state.
58. Defendant’s Infringing Speaker is promoted in the same channels of trade as
17
Brookstone’s products. Defendant and Brookstone both advertise, promote, and offer their
products and services to consumers across the United States, including through websites located
on the Internet. Both Brookstone and Defendant’s advertising and promotional materials are
directed to the same or similar consumers. Moreover, both Brookstone and Defendant sell
speaker products in overlapping retail stores, such as Walmart.
59. Defendant’s continued sale of the Infringing Speaker is likely to diminish the
goodwill associated with Brookstone’s Trade Dress.
60. Defendant’s Infringing Speaker is being promoted and purportedly provided, and
is likely to continue being promoted and purportedly provided, throughout the same nationwide
market as Brookstone’s products and services. Defendant derives and will continue to derive
substantial revenue from its Infringing Speaker, all without the permission, authority, or consent
of Brookstone.
61. Defendant’s unauthorized use of the Infringing Speaker is likely to cause
confusion or mistake or to deceive consumers into believing that Defendant’s unauthorized
products are sponsored, licensed or authorized by, or affiliated, connected or otherwise
associated with Brookstone, or that Brookstone’s speaker products are sponsored, licensed or
authorized by, or affiliated, connected, or otherwise associated with Defendant, when the same is
not true.
62. Defendant’s continued sales of the Infringing Speaker is with full knowledge of
the prior rights of Brookstone and of Brookstone’s objections to Defendant’s continued sale of
the Infringing Speaker.
63. Defendant has acted and continues to act without regard to Brookstone’s
18
trademark rights and goodwill in the Big Blue Trade Dress and Big Blue Party™ Trade Dress.
64. As a result of Defendant’s unauthorized sales of the Infringing Speaker,
Defendant is being unjustly enriched at Brookstone’s expense, and Brookstone is being
damaged.
65. Defendant’s unauthorized sales of the Infringing Speaker has significantly injured
Brookstone’s interests. Specifically, Defendant (a) has traded upon and threatens to further trade
upon the significant and valuable goodwill in Brookstone’s Trade Dress; (b) is likely to cause
public confusion as to the source, sponsorship, or affiliation of Defendant’s products with
Brookstone; (c) has damaged and threatens to further damage Brookstone’s significant and
valuable goodwill in the Brookstone Trade Dress; (d) has injured and threatens to further injure
Brookstone’s right to use Brookstone’s Trade Dress as the exclusive indicia of the origin of
Brookstone’s speaker products throughout the United States; (e) has caused and is causing
Brookstone to lose control over the goodwill associated with its Trade Dress; and (f) has
lessened the capacity of Brookstone’s Trade Dress to indicate that Brookstone’s products and
services are sponsored by Brookstone.
66. Unless these infringing acts by Defendant are restrained by this Court, they will
cause irreparable injury to Brookstone and to the public, for which there is no adequate remedy
at law.
67. Defendant’s acts of infringement and unfair competition complained of herein
have been deliberate, willful, intentional, and in bad faith, with full knowledge and conscious
disregard of Brookstone and Big Blue Audio’s rights. In view of the egregious nature of
Defendant’s actions, this is an exceptional case within the meaning of Section 35(a) of the
19
Lanham Act, 15 U.S.C. § 1117(a), as well as 35 U.S.C. §284 of the Patent Act.
FIRST CLAIM FOR RELIEF

(Design Patent Infringement)
68. Paragraphs 1-67 are incorporated herein by reference.
69. Defendant has infringed the sole claim of the ‘193 Patent through, among other
activities, the manufacture, use, importation, sale and/or offer for sale of speakers that
incorporate the novel elements of the ‘193 Patent, in violation of 35 U.S.C. § 271(a).
70. Upon information and belief, Defendant’s infringement has been willful.
71. Defendant’s infringement has injured and is continuing to injure Big Blue Audio,
and it is thus entitled to preliminary and permanent injunctive relief, and an award of damages, in
an amount to be proven at trial, as compensation for the acts alleged herein.
SECOND CLAIM FOR RELIEF

(SECTION 43(A) OF LANHAM ACT – BIG BLUE TRADE DRESS)
73. The Big Blue Trade Dress is source indicating, and consumers associated the Big
Blue Trade Dress with Brookstone and its speaker products.
74. The Big Blue Trade Dress is inherently distinctive and has acquired
distinctiveness (secondary meaning) through promotion and use of this mark for six years in
connection with Big Blue Collection of speakers.
75. Defendant’s sales of the Infringing Speakers, which incorporate the Big Blue
Trade Dress, is likely to cause confusion, mistake or deception as to origin, sponsorship or
approval of Brookstone’s goods, namely its speakers.
76. Defendant’s conduct has confused and misled customers and/or was done with the
20
purpose of confusing and misleading customers.
77. The actions alleged herein violate section 43(a) of the Lanham Act, 15 U.S.C.
§1125(a).
78. Defendant’s violation of 15 U.S.C. § 1125(a) has injured and is continuing to
injure Brookstone and it is thus entitled to preliminary and permanent injunctive relief, and an
award of damages, in an amount to be proven at trial, as compensation for the acts alleged
herein.
THIRD CLAIM FOR RELIEF

(SECTION 43(A) OF LANHAM ACT – BIG BLUE PARTY™ TRADE DRESS)
80. The Big Blue Party™ Trade Dress is source indicating, and consumers associate
the Big Blue Party™ Trade Dress with Brookstone and its speaker products.
81. The Big Blue Party™ Trade Dress is inherently distinctive and has acquired
distinctiveness (secondary meaning) through promotion and use of this mark for almost five
years in connection with Brookstone’s speakers.
Party™ Trade Dress, is likely to cause confusion, mistake or deception as to origin, sponsorship
or approval of Brookstone’s goods, namely its speakers.
83. Defendant’s conduct has confused and misled customers and/or was done with the
purpose of confusing and misleading customers.
84. The actions alleged herein violate section 43(a) of the Lanham Act, 15 U.S.C.
§1125(a).
85. Defendant’s violation of 15 U.S.C. § 1125(a) has injured and is continuing to
21
injure Brookstone and it is thus entitled to preliminary and permanent injunctive relief, and an
award of damages, in an amount to be proven at trial, as compensation for the acts alleged
herein.
FOURTH CLAIM FOR RELIEF

(COMMON LAW TRADEMARK INFRINGEMENT – BIG BLUE TRADE DRESS)
Dress, is likely to cause confusion, mistake or deception as to origin, sponsorship or approval of
Brookstone’s goods, namely its speakers.
88. Defendant’s infringement has injured and is continuing to injure Brookstone and
it is thus entitled to preliminary and permanent injunctive relief, and an award of damages, in an
amount to be proven at trial, as compensation for the acts alleged herein.
FIFTH CLAIM FOR RELIEF

(COMMON LAW TRADEMARK INFRINGEMENT – BIG BLUE PARTY™ TRADE
DRESS)
Party™ Trade Dress, is likely to cause confusion, mistake or deception as to origin, sponsorship
or approval of Brookstone’s goods, namely its speakers.
91. Defendant’s infringement has injured and is continuing to injure Brookstone and
it is thus entitled to preliminary and permanent injunctive relief, and an award of damages, in an
amount to be proven at trial, as compensation for the acts alleged herein.
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SIXTH CLAIM FOR RELIEF

(DECEPTIVE TRADE PRACTICES UNDER N.Y. GBL §349)
Trade Dress and/or the Big Blue Party™ Trade Dress, are consumer oriented as the speakers are
offered for sale in commerce.
94. Defendant’s Infringing Speaker, which incorporates the Big Blue Trade Dress and
the Big Blue Party™ Trade Dress without the authorization or permission of Brookstone, is
likely to cause confusion, mistake or deception as to origin, sponsorship or approval of
Brookstone’s goods, namely its speakers.
95. Defendant’s acts have injured and is continuing to injure Brookstone and it is thus
entitled to preliminary and permanent injunctive relief, and an award of damages, in an amount
to be proven at trial, as compensation for the acts alleged herein. See N.Y. GBL §349(h).
PRAYER FOR RELIEF
WHEREFORE, Brookstone and Big Blue Audio pray that this Court:
A. Grant preliminary and permanent injunctive relief requiring Defendant and its
officers, agents, servants, employees, and attorneys, and all persons in active concert with any of
them who receive actual notice of the Court’s order to:
(i) Cease making, using, selling, offering for sale, and/or importing the
Infringing Speaker or any other speaker that infringes and/or is substantially similar to Big Blue
Audio’s ‘193 Patent;
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(ii) Cease making, using, selling, offering for sale, and/or importing the
Infringing Speaker or any other speaker that is confusingly similar to Brookstone’s Big Blue
Trade Dress or Brookstone’s Big Blue Party™ Trade Dress;
(iii) Deliver to Brookstone or its designated representatives all goods, signs,
advertising, and promotional materials relating to the Infringing Speakers; and
(iv) Cease infringing Brookstone’s trademark rights and Big Blue Audio’s
patent rights.
B. Award to Plaintiffs and assess against Defendant damages in an amount to be
determined at trial, including prejudgment and post-judgment interest, and treble such damages
under the circumstances of this case.
C. Award to Plaintiffs and assess against Defendant punitive or exemplary damages.
D. Award to Plaintiff and assess against Defendant the costs, expert witness fees, and
reasonable attorneys’ fees incurred in connection with this action.
E. Granting such other and further relief as this Court deems just and proper.
JURY DEMAND
Brookstone and Big Blue Audio demand a trial by jury on all issues so triable.
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Dated July 6, 2018.
/s/ Peter A. Gergely

Peter A. Gergely (pro hac vice pending)
Merchant & Gould P.C.
767 3rd Ave, 23rd Floor
New York, NY 10017
Ph. (212) 223-6520
pgergely@merchantgould.com
Dana Jozefczyk (pro hac vice pending)

Ryan Fletcher (pro hac vice pending)
Merchant & Gould, P.C
1801 California Street, #3300
Denver, CO 80202
Ph. (303) 357-1670
djozefczyk@merchantgould.com
rfletcher@merchantgould.com
ATTORNEYS FOR PLAINTIFF
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Case 1:18-cv-03891 Document 1-1 Filed 07/06/18 Page 1 of 21 PageID #: 26
Brand Model Image

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Mini LifeJacket 3
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SONY SRS-XB2 Portable

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Sonos One
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iLive ISB657B Portable

Tailgate Speaker
Sound Appeal Weatherproof

Patio
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50W
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Polk Audio Atrium8

Acoustic Hatteras
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Soundcast VG3
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Wolverine WIOS-5.8
Data
Harmon/ Omni 50+

Kardon
Kicker Bullfrog BF400

B&O Beoplay P6
Bowers & Zeppelin

Wilkins
Fugoo Style-S
Heos 7
Heos 5
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Ultimate Ears Boom 2

JS 44 (Rev. 06/17) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS

BROOKSTONE COMPANY, INC. INNOVATIVE TECHNOLOGY ELECTRONICS, LLC
BIG BLUE AUDIO, LLC
(b) County of Residence of First Listed Plaintiff Hillsborough County, NH County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Peter A. Gergely, Merchant & Gould P.C.: 767 3rd Avenue, 23rd Floor,
New York, NY 11017 - (212) 223-6520
(see attachment)
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4
of Business In This State
’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6

Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
’ 110 Insurance PERSONAL INJURY PERSONAL INJURY ’ 625 Drug Related Seizure ’ 422 Appeal 28 USC 158 ’ 375 False Claims Act
’ 120 Marine ’ 310 Airplane ’ 365 Personal Injury - of Property 21 USC 881 ’ 423 Withdrawal ’ 376 Qui Tam (31 USC
’ 130 Miller Act ’ 315 Airplane Product Product Liability ’ 690 Other 28 USC 157 3729(a))
’ 140 Negotiable Instrument Liability ’ 367 Health Care/ ’ 400 State Reapportionment
’ 150 Recovery of Overpayment ’ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS ’ 410 Antitrust
& Enforcement of Judgment Slander Personal Injury ’ 820 Copyrights ’ 430 Banks and Banking
’ 151 Medicare Act ’ 330 Federal Employers’ Product Liability ’ 830 Patent ’ 450 Commerce
’ 152 Recovery of Defaulted Liability ’ 368 Asbestos Personal ’ 835 Patent - Abbreviated ’ 460 Deportation
Student Loans ’ 340 Marine Injury Product New Drug Application ’ 470 Racketeer Influenced and
(Excludes Veterans) ’ 345 Marine Product Liability ’ 840 Trademark Corrupt Organizations
’ 153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY ’ 480 Consumer Credit
of Veteran’s Benefits ’ 350 Motor Vehicle ’ 370 Other Fraud ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) ’ 490 Cable/Sat TV
’ 160 Stockholders’ Suits ’ 355 Motor Vehicle ’ 371 Truth in Lending Act ’ 862 Black Lung (923) ’ 850 Securities/Commodities/
’ 190 Other Contract Product Liability ’ 380 Other Personal ’ 720 Labor/Management ’ 863 DIWC/DIWW (405(g)) Exchange
’ 195 Contract Product Liability ’ 360 Other Personal Property Damage Relations ’ 864 SSID Title XVI ’ 890 Other Statutory Actions
’ 196 Franchise Injury ’ 385 Property Damage ’ 740 Railway Labor Act ’ 865 RSI (405(g)) ’ 891 Agricultural Acts
’ 362 Personal Injury - Product Liability ’ 751 Family and Medical ’ 893 Environmental Matters
Medical Malpractice Leave Act ’ 895 Freedom of Information
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ’ 790 Other Labor Litigation FEDERAL TAX SUITS Act
’ 210 Land Condemnation ’ 440 Other Civil Rights Habeas Corpus: ’ 791 Employee Retirement ’ 870 Taxes (U.S. Plaintiff ’ 896 Arbitration
’ 220 Foreclosure ’ 441 Voting ’ 463 Alien Detainee Income Security Act or Defendant) ’ 899 Administrative Procedure
’ 230 Rent Lease & Ejectment ’ 442 Employment ’ 510 Motions to Vacate ’ 871 IRS—Third Party Act/Review or Appeal of
’ 240 Torts to Land ’ 443 Housing/ Sentence 26 USC 7609 Agency Decision
’ 245 Tort Product Liability Accommodations ’ 530 General ’ 950 Constitutionality of
’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 535 Death Penalty IMMIGRATION State Statutes
Employment Other: ’ 462 Naturalization Application
’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 465 Other Immigration
Other ’ 550 Civil Rights Actions
’ 448 Education ’ 555 Prison Condition
’ 560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
’ 1 Original ’ 2 Removed from ’ 3 Remanded from ’ 4 Reinstated or ’ 5 Transferred from ’ 6 Multidistrict ’ 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
35 U.S.C. § 271, Section 43(a) of the Lanham Act (15 U.S.C. § 1125(a)), & common law of the State of New York
VI. CAUSE OF ACTION Brief description of cause:
Design patent infringement, trade dress infringement and unfair competition
VII. REQUESTED IN ’ CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: ’ Yes ’ No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
07/06/2018 /s/ Peter A. Gergely
FOR OFFICE USE ONLY
RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE
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JS 44 Reverse (Rev. 06/17)
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".
II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.
V. Origin. Place an "X" in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to
changes in statue.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
Additional Attorneys for Plaintiffs
Dana P. Jozefczyk
Ryan J. Fletcher
1801 California Street, Suite 3300
Denver, CO 80202
(303) 357-1670
1
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT

for the
Eastern District
__________ of of
District New York
__________
BROOKSTONE COMPANY, INC. )

BIG BLUE AUDIO, LLC )
)
)
Plaintiff(s) )
)
v. Civil Action No.
)
INNOVATIVE TECHNOLOGY ELECTRONICS, LLC )
)
)
)
Defendant(s) )
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) Innovative Technology Electronics, LLC

c/o The Corporation Trust Company, Registered Agent
Corporation Trust Center
1209 Orange Street
Wilmington, DE 19801
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are: Peter A. Gergely
767 3rd Avenue, 23rd Floor
New York, NY 10017
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
DOUGLAS C. PALMER
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No.
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)

was received by me on (date) .
’ I personally served the summons on the individual at (place)

on (date) ; or
’ I left the summons at the individual’s residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date) , and mailed a copy to the individual’s last known address; or
’ I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)
on (date) ; or
’ I returned the summons unexecuted because ; or
’ Other (specify):
.
My fees are $ for travel and $ for services, for a total of $ 0.00 .
I declare under penalty of perjury that this information is true.
Date:
Server’s signature
Printed name and title
Server’s address
Additional information regarding attempted service, etc:
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Brookstone v. Innovative Technology Elecs. - Complaint

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Brookstone v. Innovative Technology Elecs. - Complaint

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Case 1:18-cv-03891 Document 1 Filed 07/06/18 Page 1 of 25 PageID #: 1

UNITED STATES DISTRICT COURT

against Defendant Innovative Technology Electronics, LLC (“Innovative Technology

Electronics” or “Defendant”), state and allege as follows:

1. Brookstone Company, Inc. is a New Hampshire corporation with its principal

Company, Inc. is in charge of corporate administrative, operational, management, and oversight

Brookstone family of companies are hereinafter referred to as “Brookstone.”

Blue Audio is a subsidiary of Brookstone.

3. Innovative Technology Electronics is a Delaware limited liability company with

NATURE OF ACTION AND JURISDICTION

New Hampshire corporation and a Delaware limited liability company.

range of goods directed at wellness, travel, and entertainment.

Blue Trade Dress include the following:

Big Blue Studio:

Big Blue Live: Big Blue Tabletop:

Big Blue Party™: Big Blue Go:

Big Blue Unplugged Wireless: Big Blue Mini Wireless:

Big Blue Live2:

Big Blue StudioB: Big Blue Party™ 360:

Big Blue Party™ X:

Big Blue Collection.

dedicated section on Brookstone’s website (https://www.brookstone.com/audio-

tech/speakers/big-blue-collection). The brand name “Big Blue” immediately draws the

consumer’s attention to the Big Blue Trade Dress.

12. Brookstone has expended significant resources promoting, advertising and

Macy’s, Sears, Newegg, Bloomingdales, Outdoor Speaker Supply, and Target.

Blue Collection featuring the Big Blue Trade Dress.

Dress as a brand indicator for speaker products.

associate the Big Blue Trade Dress with Brookstone.

colored illuminated component would have achieved the same function.

Brookstone’s Big Blue Party™ Trade Dress

top of the tower and extends upwards therefrom.

prominently feature the Big Blue Party™ Trade Dress.

Trade Dress as a brand indicator for speaker products.

operates as a trademark of Brookstone.

shaped speakers, cylindrical speakers, etc.

put competitors at a significant non-reputation-related disadvantage.

Big Blue Audio’s Big Blue Party™ Design Patent

37. FIG. 1 of the ‘193 Patent is reproduced below.

Party™ Trade Dress, in that it features:

Innovative Technology Electronics’ Infringing

39. Defendant Innovative Technology Electronics is in the business of selling audio

Party™ family of speakers.

speaker is branded as “Innovative Technology’s Portable 20 Watt Bluetooth Outdoor

Weatherproof Rechargeable Wireless Speaker.” (“Infringing Speaker.”). Upon information and

consumers associate with Brookstone.

of which date back to 2012 or 2013.

owned or controlled by Defendant, www.victrola.com, as well as through larger retailers such as

Walmart and BJs.

Big Blue Party™ Infringing Speaker

compared in the context of the prior art.

‘193 Patent, FIG. 1 Infringing Speaker

50. In an effort to resolve this matter without litigation, Brookstone contacted

Patent, which was enclosed with the letter.

steps to cease infringement and discontinue sales of the Infringing Speaker.

Effect of Defendant’s Conduct on Brookstone and the Consuming Public

55. Defendant’s Infringing Speaker incorporates a design that is confusingly similar

sight and commercial impression.

and sell wireless indoor/outdoor speakers.

58. Defendant’s Infringing Speaker is promoted in the same channels of trade as

speaker products in overlapping retail stores, such as Walmart.

goodwill associated with Brookstone’s Trade Dress.

61. Defendant’s unauthorized use of the Infringing Speaker is likely to cause

confusion or mistake or to deceive consumers into believing that Defendant’s unauthorized