UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

ADIRONDACK COOKIE COMPANY INC. d/b/a CORSOS COOKIES, Plaintiff, vs. MONACO BAKING COMPANY, Defendant. Civ. Action No. 5:11-CV-1048 (MAD/DEP)

COMPLAINT Plaintiff ADIRONDACK COOKIE COMPANY INC. d/b/a CORSOS COOKIES, by and through its counsel, Hancock Estabrook, LLP, for its Complaint against MONACO BAKING COMPANY alleges as follows: NATURE OF THE CASE 1. The Plaintiff brings this action against the Defendant pursuant to the Declaratory

Judgment Act, 28 U.S.C. 2201, seeking a judicial declaration that it is not liable for false marking under the Patent Act, 35 U.S.C. 292. PARTIES 2. Plaintiff ADIRONDACK COOKIE COMPANY INC. d/b/a CORSOS

COOKIES (Corsos Cookies) is a New York corporation with a principal place of business at 314 Lakeside Road, Syracuse, New York 13219. 3. Upon information and belief, Defendant MONACO BAKING COMPANY

(Monaco) is a California corporation with a principal place of business at 14700 Marquardt Avenue, Santa Fe Springs, California 90670.

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JURISDICTION AND VENUE 4. and 1338. 5. Upon information and belief, Monaco advertises, offers for sale and sells products This Court has jurisdiction over this action pursuant to 28 U.S.C. 1331, 1332

in New York and has availed itself of the benefits of conducting business within New York. 6. 7. Monaco is subject to personal jurisdiction in the Northern District of New York. Corsos Cookies does business in the Northern District of New York and the

events at issue in this litigation took place in the Northern District of New York. 8. The Northern District of New York is the proper venue for this matter pursuant to

28 U.S.C. 1391. GENERAL ALLEGATIONS 9. Corsos Cookies is in the business of manufacturing, decorating and selling

handmade, high quality cookies. 10. The cookies are packaged and sold in a variety of ways, one of which is as a

Cookie Bouquet. 11. A Cookie Bouquet is comprised of several components that are combined in a

way so as to display the companys cookies in a manner reminiscent of a flower arrangement or bouquet. 12. The Cookie Bouquet is comprised of decorative cookies, each one resting on a

clear plastic pedestal attached to a wood post (the Stand), which is inserted into a hole cut into a rounded base, for display in a manner similar to a flower arrangement, as shown below.

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The plastic pedestals of the Stands used in the Cookie Bouquets are manufactured

from a mold. At the time the design for the Stand was created, Corsos Cookies intended to apply for a patent covering its Stand, and as such, the words Patent Pending were incorporated into the molds during the design phase. 14. For a variety of reasons, a patent for the Cookie Bouquet Stand was ultimately

never applied for. The Patent Pending imprint was inadvertently retained on the mold due to an oversight, resulting in the imprint of Patent Pending on a limited number of the Stands. 15. The Stands are not sold independently and are utilized solely as an internal part of

the Cookie Bouquets. 16. As evident from the photo above, the Stands themselves are not visible to the

consumer from the front of the Cookie Bouquet. 17. The Patent Pending imprint in the internally-placed clear plastic Stand was not

directly or easily visible to a customer or consumer who purchased a Cookie Bouquet.

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For the vast majority of Cookie Bouquets, a label was placed on the internal Stand

to secure the cookie, further obscuring the view of the Patent Pending imprint. 19. Monaco, through its attorney Robert J. Lauson, initially contacted Corsos

Cookies on or about August 3, 2011, stating that Monaco had become aware of the Stand; that the stand is nearly identical to Monacos cookie support stand; that Monaco is the inventor of the cookie support stand packaging concept; and claiming that Corsos Cookies has copied [Monacos] design and filed a false declaration claiming inventorship, assuming one or more patent applications are actually pending and [the Corsos Cookies] product is not being falsely marked in violation of the federal false marking statue, 35 U.S.C. 292. 20. By letter dated August 31, 2011, Mr. Lauson threaten to file suit on Monacos

behalf against Corsos Cookies alleging false marking under 35 U.S.C. 292 or, alternatively, fraud on the United States Patent and Trademark Office if Corsos Cookies did not provide Monaco with a patent application. 21. Because Corsos Cookies has not applied for a patent for the Stand, these threats

of litigation implicate the False Marking Statute, 35 U.S.C. 292. 22. Corsos Cookies never intended to deceive, and upon information and belief,

never did deceive anyone by inadvertently placing the words Patent Pending on their Stands. 23. Monacos letter is a clear indication of its belief that Corsos Cookies is liable for

false marking under 35 U.S.C. 292 in the absence of a patent application covering the Stand. 24. Monacos letter placed Corsos Cookies under fear of impending litigation and

raises a justiciable controversy as to its nonliability for its past actions that it seeks to resolve in a timely and efficient manner.

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25.

Corsos Cookies therefore brings this action for a declaration that its placement of

the words Patent Pending on some of its internal Stands did not violate 35 U.S.C. 292, the False Marking Statute. AS AND FOR A FIRST CAUSE OF ACTION (Declaratory Judgment No violation of 292) 26. Plaintiffs repeat, reiterate and reallege each and every allegation contained in

paragraphs 1 through 25 of the Complaint as if set forth fully herein. 27. As set forth above, an actual, justiciable controversy exists between Corsos

Cookies and Monaco as to whether Corsos Cookies has violated 35 U.S.C. 292. 28. Corsos Cookies has not violated 35 U.S.C. 292 and seeks a judicial declaration

that its marking of the Stands as set forth above does not give rise to liability under the False Marking Statute. AS AND FOR A SECOND CAUSE OF ACTION (Declaratory Judgment Lack of Standing) 29. Plaintiffs repeat, reiterate and reallege each and every allegation contained in

paragraphs 1 through 28 of the Complaint as if set forth fully herein. 30. Monaco lacks standing to assert a False Marking claim under 35 U.S.C. 292

against Corsos Cookies. 31. Monaco has not suffered any injury, harm or damage as a result of Corsos

Cookies marking of its Stands, and therefore any 35 U.S.C. 292 claim it brings against Corsos Cookies cannot satisfy the basic requirements of justiciability under Article III of the United States Constitution. 32. Corsos Cookies therefore seeks a judicial declaration that Monaco lacks standing

to bring a 292 claim against the Plaintiff.

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AS AND FOR A THIRD CAUSE OF ACTION (Declaratory Judgment Article III of the United States Constitution) 33. Plaintiffs repeat, reiterate and reallege each and every allegation contained in

paragraphs 1 through 32 of the Complaint as if set forth fully herein. 34. Though 35 U.S.C. 292 is a qui tam statute whereby a claimant stands in the

shoes of the United States Government, the United States Government has not itself suffered an injury in fact that is related to Corsos Cookies conduct. 35. Because the Governments only possible ground for standing is its general,

sovereign interest in enforcement of public rights as pronounced by the laws of the United States, it cannot confer its interest, claim or standing on a private litigant such as Monaco. 36. Accordingly, to the extent that the Court holds that (1) the United States has

standing by reason of its sovereign right to enforce its law and (2) Monaco has standing by reason of the United States partial assignment of its claim to Monaco to bring suit against Corsos Cookies under 35 U.S.C. 292, the statute violates Article III of the United States Constitution. 37. Corsos Cookies therefore seeks a judicial declaration that Monaco may not,

consistent with the United States Constitution, be vested with standing through its status as a relator to the United States Government so that it may bring a 35 U.S.C. 292 claim against the Plaintiff. AS AND FOR A FOURTH CAUSE OF ACTION (Declaratory Judgment Article II of the United States Constitution) 38. Plaintiffs repeat, reiterate and reallege each and every allegation contained in

paragraphs 1 through 37 of the Complaint as if set forth fully herein.

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The private enforcement mechanism of 35 U.S.C. 292 allows any person to

file suit for violations of its prohibitions on false marking, regardless of whether they have a personal injury or standing in the litigation. 40. 35 U.S.C. 292 does not provide for United States Government control,

involvement or notice of prosecutions of false marking claims by private litigants. 41. By permitting wholly public rights to be vindicated by private litigants without

any involvement by the Executive Branch of the United States Government, 35 U.S.C. 292 undermines the United States Presidents ability to take Care that the Laws be faithfully executed[,] usurps his Executive power, and thus violates Article II, 3 of the United States Constitution and the constitutional principle of separation of powers. 42. Further, the President of the United States is vested with the sole authority to

appoint officers of the United States to assist in the execution of the laws of the United States. 43. otherwise. 44. Thus, because the private enforcement mechanism of 35 U.S.C. 292 places The Legislature may not appoint wholly executive officers, by statute or

Executive governmental power with private parties beyond the control or oversight of the United States Government and the President of the United States, this provision also violates the Appointment Clause of Article II, 2 of the United States Constitution. 45. Corsos Cookies therefore seeks a judicial declaration that the private

enforcement mechanism of 35 U.S.C. 292 violates Article II of the United States Constitution. WHEREFORE, Plaintiff Adirondack Cookie Company Inc. d/b/a Corsos Cookies demands judgment against Defendant Monaco Baking Company declaring that:

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A.

Corsos Cookies did not violate 35 U.S.C. 292 by placing the words Patent

Pending on some of its Stands; B. 292; C. To the extent that this Court holds that Monaco would have standing to assert a Monaco lacks standing to bring suit against Corsos Cookies under 35 U.S.C.

claim pursuant to 35 U.S.C. 292 against Corsos Cookies, that provision violates Article III of the United States Constitution; D. The private enforcement mechanism of 35 U.S.C. 292 violates the Take Care

clause of Section 3 and the Appointments Clause of Section 2 of Article II of the United States Constitution, and; E. Granting Plaintiff such other and further relief as it may deem just and proper

DATED: September 1, 2011

HANCOCK ESTABROOK, LLP

By: s/ Ashley D. Hayes Ashley D. Hayes, Esq. (Bar Roll No. 511333) James P. Youngs, Esq. (Bar Roll No. 515029) Attorneys for Plaintiff Adirondack Cookie Company Inc. d/b/a/ Corsos Cookies 1500 AXA Tower I 100 Madison Street Syracuse, New York 13202 Telephone: (315) 565-4500

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