Professional Documents
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v.
Plaintiff,
COMPLAINT FOR PATENT INFRINGEMENT, UNFAIR COMPETITION, TRADE LIBEL, AND INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS REQUEST FOR JURY TRIAL
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Defendants.
COMPLAINT
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3. 2. 1.
This action arises under the Patent Laws of the United States, Title 35,
United States Code, and under the common law of the United States. This Court has original and exclusive jurisdiction of this action pursuant to 28 U.S.C. 1331 and 1338(a). This Court also has diversity jurisdiction pursuant to 28 U.S.C. 1332 and supplemental jurisdiction pursuant to 28 U.S.C. 1367. The matter in controversy complained of herein exceeds the sum or value $75,000.
This Court has personal jurisdiction over Defendant in this action and
venue is proper in this judicial district under 28 U.S.C. 1391(b) and (c) because, as alleged below, Defendants have intentionally engaged in substantial business within this forum amounting to sufficient minimum contacts, including but not limited to, the offering and selling their infringing products in this judicial district, the harm caused to Plaintiffs by Defendants acts and omissions was targeted at Plaintiffs and designed to impact Plaintiffs in this judicial district, and a substantial part of the acts or omissions giving rise to the asserted claims occurred or had effects in this judicial district.
and existing under the laws of the State of California, does business as All Four Paws (All Four Paws) and has its principal place of business at 126 Hart Avenue, Santa Monica, CA 90405.
-1COMPLAINT
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4.
(Contech) is a foreign corporation having its principal place of business located at 19 Dallas Road, Unit 115, Victoria, British Columbia, V8V 5A6, Canada. On information and belief, on or about June 29, 2011, Contech acquired G&B Marketing, Inc. (G&B). On information and belief, employees of G&B became employees of Contech following the acquisition.
5.
Plaintiff does not know the true names and capacities, whether individuals,
corporations, companies, partnerships, joint ventures, or otherwise of defendant DOES 1-100, inclusive. Plaintiff is informed and believes, and on that basis alleges, that each fictitious defendant was in some way responsible for, participated in, or contributed to the matters and things of which Plaintiff complains, and in some fashion, has legal responsibility. When the exact nature and identity of such fictitious defendants or defendants' responsibility for participation and contribution to the matters and things alleged in this Complaint is ascertained, Plaintiff will seek leave to amend this Complaint.
6.
7.
Based in Southern California, All Four Paws is a family run business and
an innovator in the field of pet safety and convenience products. All Four Paws has found a great of success with its patented Comfy Cone product, an Elizabethan collar medical protective device for animals.
-2COMPLAINT
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8.
Since its introduction into the marketplace, the Comfy Cone has been a
hit, both in the U.S. and internationally, having won numerous accolades and recommendations, notably:
Blue Ribbon for Best New Product Superzoo in 2007 and 2008 Blue Ribbon for Best New Product Global Pet Expo in 2008 Silver Medal for best Product H.H. Backers Associates in 2009 Animal Planet highly recommends Comfy Cone and uses the Comfy Cone
9.
Through its program called All Four Paws With Love, All Four Paws
donates the Comfy Cone to various charitable organizations across the U.S., to support all the wonderful animal shelters and rescue foundations that care for the myriad dogs and cats that have yet to find loving homes. By donating hundreds of Comfy Cones to the various non-profit organizations, notably, Animal Planet; Best Friends Animal Society - Kanab, Utah; World Heart Organization- Acton, California; Much Love Animal Rescue - Los Angeles, California; Humane Society, Calumet Area; Wright Way Rescue - Niles, Illinois; Save a Yorkie Foundation Sinking Spring, Pennsylvania; Dogs for Diabetics- Concord, California; Bichon Fur KidsOceanside, California; and TCVESSA Foundation- Elk River, Minnesota. All Four Paws With Love also teams up with a large number of celebrities, politicians and sports figures who are attached to animal charities by working to raise money for animal charities, by offering autographed Comfy Cones for use in silent auctions and fundraisers.
10.
All Four Paws is the owner of United States Patent No. 8,042,494 entitled
Pet Protective Collar which was duly and lawfully issued by the United States Patent and Trademark Office (USPTO) on October 25, 2011. (the 494 patent or the patent-in-suit).
-3COMPLAINT
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11.
statute, the 494 patent is presumed valid and enforceable under 35 U.S.C. 282.
12.
employees and servants, including but not limited to G&B, make, have made, manufacture, have manufactured, import, use, offer for sale, and/or sell products embodying the invention(s) of at least claim 1 of the patent-in-suit without authorization, permission or license. Defendant offers for sale and sell the infringing products, including but not limited to the Pro Cone product, through multiple marketing streams including offering and selling infringing products directly to customers in this judicial district through their interactive website, http://www.contech-inc.com, via the Internet.
13.
but not limited to G&B, have disparaged All Four Paws product, the Comfy Cone using false statements of fact about the product as set forth in more detail below.
14.
employees and servants, including but not limited to G&B, have told a number of All Four Paws customers and potential customers that the Paws Comfy Cone product is dangerous to animals because it is prone to bacteria growth and infestation among other product disparagements.
15.
about the Comfy Cone took place a several different trade shows.
16.
statements of fact, not opinion, and were made without any factual support whatsoever. The knowingly false statements were made with malice and the intent to both damage customers and
-4COMPLAINT
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potential customers impressions of the product and drive sales of Defendants competing product, the Pro Cone.
17.
disparaging claims. But other customers undoubtedly purchased the Pro Cone and/or avoided purchasing All Four Paws products as a result of Defendants false statements. Specifically, more than one veterinarian attending the trade show referred to bacterial problems with the Comfy Cone, inquired whether Plaintiff intended to do anything to fix those problems, and indicated that they would not sell or recommend the product until Plaintiff remedied them. On information and belief, Defendant falsely told those veterinarians that the Comfy Cone has bacterial problems. As a result, All Four Paws has lost sales and suffered injury to its product goodwill.
18.
but not limited to G&B, has intentionally interfered with the contract between All Four Paws and Petco Corporation (Petco).
19.
All Four Paws entered into a valid contract with Petco on or about July
2008 for the sale of the Comfy Cone in Petco stores and online.
20.
but not limited to G&B, knew about All Four Paws contract with Petco.
21.
but not limited to G&B, intended to disrupt the performance of this contract by making false statements to representatives of Petco regarding All Four Paws products and whether the Comfy Cone is patentable. Specifically, G&B told the buyer for Petco that All Four Paws products
-5COMPLAINT
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were not capable of being patented and attempted to undercut or otherwise interfere with AFPs contractual relationship with Petco.
22.
through false information, causing Petco to terminate the in-store sales portion of the All Four Paws agreement. Beginning in April, 2012, All Four Paws is only allowed to sell its products through Petcos website, not in stores.
23.
24.
25.
infringed at least claim 1 of 494 patent by making, having made, manufacturing, having manufactured, importing, using, offering for sale, and/or selling, without Plaintiffs authority, products embodying the claimed invention(s), including but not limited to Defendants Pro Cone product.
26.
suffering damages, including but not limited to, lost sales and impairment of the value of the 494 patent, in an amount yet to be determined.
-6COMPLAINT
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27.
having been committed with notice and knowledge of Plaintiffs patent rights.
28.
and will continue to cause irreparable harm unless enjoined by this Court.
29.
30.
but not limited to G&B, have made knowingly false statements of fact disparaging the quality of Plaintiffs product, the Comfy Cone. Defendants knowingly false statements of fact include, but are not limited to, that the Comfy Cone is dangerous to animals because it is prone to bacterial growth and infestation.
31.
dangerous to animals and is not prone to bacterial growth or infestation. Defendant knew these statements to be false at the time they were made and/or acted with reckless disregard for the falsity of the statements.
32.
Defendants knowingly false statements were made with malice and the
intent to both damage customers and potential customers impression of Plaintiffs product and drive sales of Defendants competing product, the Pro Cone.
-7COMPLAINT
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33.
Plaintiffs have suffered and are suffering damages, including but not limited to, lost sales and impairment of the value of its products goodwill, in an amount yet to be determined.
34.
Defendants acts of trade libel are causing irreparable harm to Plaintiff and
THIRD CLAIM FOR RELIEF (Intentional Interference with Contractual Relations) 35. Plaintiffs reallege and incorporate herein by reference the allegations
36.
but not limited to G&B, have interfered with and caused the disruption of Plaintiffs contractual relationship with Petco.
37.
this contract when G&B told the buyer for Petco that the Comfy Cone is not patentable and that All Four Paws was overcharging for its products.
38.
Petco and caused Petco to terminate the in-store sales portion of the All Four Paws agreement.
39.
Plaintiffs have suffered and are suffering damages, including but not limited
to, lost sales and impairment of the value of its Comfy Cone product in an amount yet to be determined.
-8COMPLAINT
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43. 42. 41. 40.
FOURTH CLAIM FOR RELIEF (Unfair Competition) Plaintiffs reallege and incorporate herein by reference the allegations
but not limited to G&B, has unfairly competed with Plaintiff by making false statements disparaging Plaintiffs product, disrupting Plaintiffs relationships with actual customers and potential customers.
damages, including but not limited to, lost sales and impairment of the value of the 494 patent, in an amount yet to be determined.
WHEREFORE, Plaintiffs pray for: A. B. Judgment that Defendants have infringed U.S Patent No. 8,042,494. An award of damages for infringement of U.S Patent No. 8,042,494 in an
27 and their officers, agents, servants, employees, and attorneys, and those persons in active concert 28 or participation with them, from further infringement of U.S Patent No. 8,042,494. -9COMPLAINT
E.
4 and their officers, agents, servants, employees, and attorneys, and those persons in active concert 5 or participation with them, from further unfair competition and trade libel for disparagement of 6 Plaintiffs products. 7 8
G. H. Judgment that Defendant committed trade libel. An award of damages for trade libel against Plaintiffs products in an
By
/s Jon E. Maki JON E. MAKI, MICHAEL D. EISENBERG Attorneys for Plaintiff IMAGINE THAT INTERNATIONAL, INC., dba ALL FOUR PAWS
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DEMAND FOR JURY TRIAL Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiff IMAGINE THAT
3 INTERNATIONAL, INC. hereby demands a trial by jury on this Complaint as to all issues that 4 may be so tried. 5 6 Dated: May 11, 2012 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -11COMPLAINT
By
/s Jon E. Maki JON E. MAKI, MICHAEL D. EISENBERG Attorneys for Plaintiff IMAGINE THAT INTERNATIONAL, INC., a California corporation dba ALL FOUR PAWS
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JS 44 (Rev. 12/07)
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 THE REVERSE OF THE FORM.)
I. (a) PLAINTIFFS Imagine That International, Inc. dba All Four Paws (b) County of Residence of First Listed Plaintiff
DEFENDANTS
Los Angeles
(IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED.
Law Office of Jon E. Maki 4135 Calle Isabelino San Diego CA 92130 858.876.2580 II. BASIS OF JURISDICTION (Place an X in One Box Only)
1 U.S. Government Plaintiff 3 Federal Question (U.S. Government Not a Party)
(Place an X in One Box Only) TORTS PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury CIVIL RIGHTS 441 Voting 442 Employment 443 Housing/ Accommodations 444 Welfare 445 Amer. w/Disabilities Employment 446 Amer. w/Disabilities Other 440 Other Civil Rights PERSONAL INJURY 362 Personal Injury Med. Malpractice 365 Personal Injury Product Liability 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY 370 Other Fraud 371 Truth in Lending 380 Other Personal Property Damage 385 Property Damage Product Liability PRISONER PETITIONS 510 Motions to Vacate Sentence Habeas Corpus: 530 General 535 Death Penalty 540 Mandamus & Other 550 Civil Rights 555 Prison Condition
FORFEITURE/PENALTY 610 Agriculture 620 Other Food & Drug 625 Drug Related Seizure of Property 21 USC 881 630 Liquor Laws 640 R.R. & Truck 650 Airline Regs. 660 Occupational Safety/Health 690 Other LABOR 710 Fair Labor Standards Act 720 Labor/Mgmt. Relations 730 Labor/Mgmt.Reporting & Disclosure Act 740 Railway Labor Act 790 Other Labor Litigation 791 Empl. Ret. Inc. Security Act IMMIGRATION 462 Naturalization Application 463 Habeas Corpus Alien Detainee 465 Other Immigration Actions
BANKRUPTCY 422 Appeal 28 USC 158 423 Withdrawal 28 USC 157 PROPERTY RIGHTS 820 Copyrights 830 Patent 840 Trademark
OTHER STATUTES 400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 810 Selective Service 850 Securities/Commodities/ Exchange 875 Customer Challenge 12 USC 3410 890 Other Statutory Actions 891 Agricultural Acts 892 Economic Stabilization Act 893 Environmental Matters 894 Energy Allocation Act 895 Freedom of Information Act 900Appeal of Fee Determination Under Equal Access to Justice 950 Constitutionality of State Statutes
SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g)) FEDERAL TAX SUITS 870 Taxes (U.S. Plaintiff or Defendant) 871 IRSThird Party 26 USC 7609
V. ORIGIN
1 Original
Proceeding
Appeal to District
2 Removed from
State Court
35 USC 271 VI. CAUSE OF ACTION Brief description of cause: Patent infringement. VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23 COMPLAINT: VIII. RELATED CASE(S) (See instructions): JUDGE IF ANY
DATE
Appellate Court Reopened Litigation (specify) Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
3 Remanded from
4 Reinstated or
6 Multidistrict
DEMAND $
CHECK YES only if demanded in complaint: Yes No JURY DEMAND: DOCKET NUMBER
05/10/2012
FOR OFFICE USE ONLY RECEIPT # AMOUNT
/s Jon E. Maki
APPLYING IFP
JUDGE
MAG. JUDGE