Case 8:19-cv-00516 Document 1 Filed 03/15/19 Page 1 of 18 Page ID #:1

1 MANDOUR & ASSOCIATES, APC

2 Joseph A. Mandour (SBN 188896)
Email: jmandour@mandourlaw.com
3 Ben T. Lila (SBN 246808)
4 Email: blila@mandourlaw.com
8605 Santa Monica Blvd., Suite 1500
5
Los Angeles, CA 90069
6 Telephone (858) 487-9300
7 Attorneys for Plaintiff,
TCP INVESTMENTS, LLC
8
9 UNITED STATES DISTRICT COURT
10 CENTRAL DISTRICT OF CALIFORNIA
11
12 TCP INVESTMENTS, LLC, a Case No. 8:19-cv-00516
California Limited Liability
13
Company, COMPLAINT FOR DECLARATORY
14 JUDGMENT, UNFAIR COMPETITION,
15 Plaintiff, TORTIOUS INTERFERENCE,
NEGLIGENT MISREPRESENTATION,
16 v. AND OTHER RELIEF
17
CREATIVE OUTDOOR DEMAND FOR JURY TRIAL
18
DISTRIBUTORS USA, INC., a
19 Delaware corporation,
20
Defendant.
21
22
23
24
25
26 Plaintiff TCP INVESTMENTS, LLC (hereinafter “plaintiff”), by and
27 through its counsel, alleges as its complaint against defendant CREATIVE
28 OUTDOOR DISTRIBUTORS USA, INC. (“defendant”) as follows:

Case No. 8:19-cv-00516

COMPLAINT FOR DECLARATORY JUDGMENT, UNFAIR COMPETITION, TORTIOUS INTERFERENCE,
NEGLIGENT MISREPRESENTATION, AND OTHER RELIEF; DEMAND FOR JURY TRIAL
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1 NATURE OF ACTION
2 1. This is an action for declaratory relief under federal law pursuant to
3 28 U.S.C. § 2201, et seq. for a declaratory judgment of non-infringement of the
4 claim of U.S. Design Patent No. D757,637 (“the ‘637 Patent” or the “Patent-in-
5 Suit”). A copy of the ‘637 Patent is attached hereto as Exhibit A.
6 2. This is also an action for unfair competition under the Lanham Act 15
7 U.S.C. § 1125 and tortious interference and negligent misrepresentation under
8 California law.
9 PARTIES
10 3. Plaintiff TCP INVESTMENTS, LLC (“TCP”) is a California
11 corporation with an address at: 9282 Miramar Rd., San Diego, CA 92126.
12 4. On information and belief, defendant CREATIVE OUTDOOR
13 DISTRIBUTORS USA, INC. (“COD USA”) is a Delaware corporation with an
14 address at: 25954 Commercentre Drive, Lake Forest, CA 92630.
15
16 JURISDICTION AND VENUE
17 5. Jurisdiction in this Court and in the subject matter of this action arises
18 under the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 1331 & 1338 and the
19 patent laws of the United States 35 U.S.C. § 1, et seq. with supplemental
20 jurisdiction of this Court pursuant to 28 U.S.C. § 1367.
21 6. This Court may exercise personal jurisdiction over the defendant
22 based upon their activities, including their transaction of business, within the
23 Central District of California. Defendant sell their products nationwide, including,
24 upon information and belief, within the State of California. Defendant further
25 resides in the district.
26 7. Venue is proper and reasonable in this district under 28 U.S.C. §
27 1391(b)(2) because defendant resides in the district and a substantial part of the
28 events or omissions giving rise to this claim occurred in the district.

Case No. 8:19-cv-00516

COMPLAINT FOR DECLARATORY JUDGMENT, UNFAIR COMPETITION, TORTIOUS INTERFERENCE,
NEGLIGENT MISREPRESENTATION, AND OTHER RELIEF; DEMAND FOR JURY TRIAL
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1 FACTUAL BACKGROUND
2 8. Plaintiff TCP is in the business of selling art and craft supplies,
3 including among many other items, collapsible utility wagons.
4 9. Defendant COD USA is also in the business of selling collapsible
5 utility wagons.
6 10. Both plaintiff and defendant sell their collapsible utility wagon
7 products on the retail website Amazon.com operated by Amazon.com, Inc.
8 (“Amazon”).
9 11. True and correct copies of exemplary product listings of plaintiff’s
10 and defendant’s products on Amazon are attached hereto as Exhibit B.
11 12. TCP’s collapsible utility wagon products contain a specific wheel
12 design and tread. Attached hereto as Exhibit C are images of TCP’s wheel design.
13 13. On November 13, 2018, TCP received an email notice from Amazon
14 indicating COD USA alleged a claim of patent infringement for the ‘637 Patent,
15 the subject of which is a certain wheel design. A true and correct copy of
16 Amazon’s email notice is attached hereto as Exhibit D.
17 14. Under an “ordinary observer test,” TCP’s design does not and cannot
18 infringe the ‘637 Patent. An ordinary observer would not find plaintiff’s product
19 “substantially the same” with the claimed design of the ‘637 Patent.
20 15. Plaintiff’s product is differentiable from the ‘637 Patent design in,
21 inter alia, surface ornamentation, construction, relative dimensions and
22 configuration. Plaintiff’s product, therefore, does not infringe the ‘637 Patent.
23 16. As a result of COD USA’s complaint to Amazon, TCP’s sales listings
24 were immediately disabled, preventing TCP from making sales of the product on
25 Amazon.
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Case No. 8:19-cv-00516

COMPLAINT FOR DECLARATORY JUDGMENT, UNFAIR COMPETITION, TORTIOUS INTERFERENCE,
NEGLIGENT MISREPRESENTATION, AND OTHER RELIEF; DEMAND FOR JURY TRIAL
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1 17. On information and belief, defendant COD USA has intentionally and
2 negligently misrepresented to Amazon the extent of their purported patent rights,
3 including and without limitation, misrepresenting the fact that:
4  Plaintiff’s product clearly does not fall within the scope of the ‘637
5 Patent; and,
6  Plaintiff’s design is so far outside the scope of the ‘637 Patent, that
7 defendant could not have a reasonable basis to believe it had an even
8 colorable claim of patent infringement.
9 18. Defendant’s intentional and negligent misrepresentation to Amazon
10 alleging patent infringement on or about November 14, 2018 had no reasonable
11 basis and was intended to disrupt and interfere with plaintiff’s sale of a competing
12 product.
13 19. Further, defendant’s misrepresentation coincided with the 2018
14 holiday shopping season, where both plaintiff and defendant would be expected to
15 make substantial sales of collapsible utility wagons.
16 20. Due to Amazon’s partially automated system of regularly disabling
17 sales listings, defendant’s wrongful, false, and misleading complaint caused
18 interruption and interference with plaintiff’s listing and sale of products. As a
19 result, defendant has prevented plaintiff TCP’s prospective sales of at least $65,000
20 during the period of being delisted by Amazon’s system.
21 21. On December 5, 2018, plaintiff sent a letter through its counsel
22 informing defendant that its Amazon complaint had no factual or legal basis.
23 22. Despite continuous and subsequent correspondence between
24 plaintiff’s and defendant’s counsel, COD USA did not indicate that it had
25 withdrawn its complaint with Amazon until January 23, 2019, long after the end of
26 the 2018 holiday shopping season.
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Case No. 8:19-cv-00516

COMPLAINT FOR DECLARATORY JUDGMENT, UNFAIR COMPETITION, TORTIOUS INTERFERENCE,
NEGLIGENT MISREPRESENTATION, AND OTHER RELIEF; DEMAND FOR JURY TRIAL
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1 CLAIMS FOR RELIEF

2 First Claim for Relief
3 (Declaratory Judgment of Non-Infringement of the ‘637 Patent)
4 23. Plaintiff repeats and incorporates by reference the statements and
5 allegations in paragraphs 1 to 22 of the complaint as though fully set forth herein.
6 24. There exists an actual, substantial, and immediate controversy
7 between TCP and COD USA concerning TCP’s alleged liability for infringement
8 of the ‘637 Patent.
9 25. The controversy was, at least in part, created by COD USA’s
10 correspondence to Amazon alleging patent infringement by TCP.
11 26. TCP unequivocally asserts that it does not infringe the ‘637 Patent.
12 Prior to defendant’s correspondence, plaintiff had no constructive or actual notice
13 of the ‘637 Patent.
14 27. Plaintiff is entitled to a judgment declaring that it does not infringe,
15 and has not infringed, the claim of the ‘637 Patent by making, using, selling or
16 offering to sell plaintiff’s products, either literally or under the doctrine of
17 equivalents.
18 28. Plaintiff seeks a declaratory judgment to resolve plaintiff and
19 defendant’s respective rights regarding defendant COD USA’s claim of patent
20 infringement.
21
22 Second Claim for Relief
23 (Interference with Prospective Contractual Economic Relations)
24 29. Plaintiff repeats and incorporates by reference the statements and
25 allegations in paragraphs 1 to 28 of the complaint as though fully set forth herein.
26 30. Plaintiff has enjoyed an economic relationship with Amazon, third-
27 party retailers and its customers that was an economic benefit to plaintiff.
28

Case No. 8:19-cv-00516

COMPLAINT FOR DECLARATORY JUDGMENT, UNFAIR COMPETITION, TORTIOUS INTERFERENCE,
NEGLIGENT MISREPRESENTATION, AND OTHER RELIEF; DEMAND FOR JURY TRIAL
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1 31. Plaintiff also has prospective economic relations with certain

2 customers and prospective customers which would be of economic benefit to
3 plaintiff.
4 32. Defendant knew of the existence of plaintiff’s economic relationship
5 or prospective economic relations with Amazon, third-party retailers, customers
6 and prospective customers.
7 33. Defendant intentionally or negligently interfered in these economic
8 relationships, causing a breach of the relationships with no privilege to do so.
9 34. Also, defendant intentionally and improperly interfered with
10 plaintiff’s prospective contractual or economic relations by inducing or causing the
11 customer and/or prospective customer not to enter into or continue its prospective
12 relationship with plaintiff or has prevented plaintiff from acquiring or continuing
13 its prospective relations.
14 35. Defendant’s actions have been without justification or privilege.
15 36. Defendant’s acts, as set forth above constitute tortious interference, all
16 to the damage of plaintiff as previously alleged.
17
18 Third Claim for Relief
19 (Negligent Misrepresentation)
20 37. Plaintiff repeats and incorporates by reference the statements and
21 allegations in paragraphs 1 to 36 of the complaint as though fully set forth herein.
22 38. On information and belief, defendant misrepresented to Amazon that
23 plaintiff infringed defendant’s patent rights, despite having no reasonable basis for
24 believing plaintiff’s product was within the scope of the claim of the ‘637 Patent.
25 39. Defendant’s acts, as set forth above, constitute negligent
26 misrepresentation, all to the damage of plaintiff as previously alleged.
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Case No. 8:19-cv-00516

COMPLAINT FOR DECLARATORY JUDGMENT, UNFAIR COMPETITION, TORTIOUS INTERFERENCE,
NEGLIGENT MISREPRESENTATION, AND OTHER RELIEF; DEMAND FOR JURY TRIAL
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1 Fourth Claim for Relief

2 (Unfair Competition under 15 U.S.C. § 1125 )
3 40. Plaintiff repeats and incorporates by reference the statements and
4 allegations in paragraphs 1 to 39 of the complaint as though fully set forth herein.
5 41. By reason of the foregoing unlawful acts recited in the paragraphs
6 above, plaintiff has been irreparably harmed and will continue to suffer damage
7 until an appropriate injunction and damages award, including increased treble
8 damages and attorneys’ fees, are imposed by this court against defendant.
9
10 Fifth Claim for Relief
11 (State Law Unfair Competition – Cal. Bus. & Prof. Code § 17200)
12 42. Plaintiff repeats and incorporates by reference the statements and
13 allegations in paragraphs 1 to 41 of the complaint as though fully set forth herein.
14 43. Defendant’s acts, as set forth above constitute unfair competition as
15 defined in California Business and Professions Code § 17200, et seq., all to the
16 damage of plaintiff as previously alleged.
17
18 Sixth Claim for Relief
19 (Common Law Unfair Competition)
20 44. Plaintiff repeats and incorporates by reference the statements and
21 allegations in paragraphs 1 to 43 the complaint as though fully set forth herein.
22 45. Defendant’s acts, as set forth above, constitute unfair competition as
23 defined under California common law, all to the damage of plaintiff as previously
24 alleged.
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Case No. 8:19-cv-00516

COMPLAINT FOR DECLARATORY JUDGMENT, UNFAIR COMPETITION, TORTIOUS INTERFERENCE,
NEGLIGENT MISREPRESENTATION, AND OTHER RELIEF; DEMAND FOR JURY TRIAL
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1 PRAYER FOR RELIEF

2 WHEREFORE, Plaintiff asks that this Court grant judgment against
3 defendant for the following:
4 A. Defendant, their officers, agents, servants, employees, and attorneys,
5 and all persons in active concert or participation with any of them, be
6 temporarily restrained and preliminarily and permanently enjoined from:
7 i. interfering with plaintiff’s economic and prospective relationship
8 with Amazon and plaintiff’s customers, including sending false or
9 misleading complaints of patent infringement to Amazon or
10 plaintiff’s customers;
11 ii. unfairly competing with plaintiff;
12 iii. conspiring, encouraging, inducing, allowing, abetting, or assisting
13 others in performing any of the activities referred to in
14 subparagraphs (i) - (ii) above.
15 B. Defendant’s shall file with the Court and serve on plaintiff, within 30
16 days after the entry and service on defendant of an injunction, a report in
17 writing and attested to under penalty of perjury setting forth in detail the
18 manner and form in which defendant has complied with the provisions of
19 subparagraph (A) above.
20 C. Declaring plaintiff has not and does not infringe U.S. Design Patent
21 No. D757,637.
22 D. Plaintiff recovers all damages it has sustained as a result of
23 defendant’s tortious interference, negligent misrepresentation and unfair
24 competition.
25 E. Plaintiff be awarded exemplary damages, pursuant to any applicable
26 law.
27 F. Plaintiff be awarded punitive damages, pursuant to any applicable
28 law.

Case No. 8:19-cv-00516

COMPLAINT FOR DECLARATORY JUDGMENT, UNFAIR COMPETITION, TORTIOUS INTERFERENCE,
NEGLIGENT MISREPRESENTATION, AND OTHER RELIEF; DEMAND FOR JURY TRIAL
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1 G. Plaintiff be awarded its reasonable attorneys’ fees for prosecuting this

2 action, pursuant to any applicable law.
3 H. Plaintiffs recover its costs of this action and pre-judgment and post-
4 judgment interest, to the full extent allowed by law.
5 I. Plaintiff receive all other relief the Court deems appropriate.
6
7 Respectfully submitted,
8 Dated: March 13, 2019
9 MANDOUR & ASSOCIATES, APC

10 /s/ Ben T. Lila

11 Ben T. Lila (SBN 246808)
Email: blila@mandourlaw.com
12 Attorneys for Plaintiff,
13 TCP INVESTMENTS, INC.
14
15 JURY DEMAND
16 Plaintiff demands a trial by jury of all issues so triable.
17
18 MANDOUR & ASSOCIATES, APC
19
20 /s/ Ben T. Lila
21 Ben T. Lila (SBN 246808)
Email: blila@mandourlaw.com
22 Attorneys for Plaintiff,
23 TCP INVESTMENTS, LLC
24
25
26
27
28

Case No. 8:19-cv-00516

COMPLAINT FOR DECLARATORY JUDGMENT, UNFAIR COMPETITION, TORTIOUS INTERFERENCE,
NEGLIGENT MISREPRESENTATION, AND OTHER RELIEF; DEMAND FOR JURY TRIAL
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EXHIBIT A
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EXHIBIT B
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EXHIBIT C
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EXHIBIT D
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