0 penilaian0% menganggap dokumen ini bermanfaat (0 suara)
125 tayangan16 halaman
Official Complaint for Patent Infringement in Civil Action No. 1:12-cv-03997-WSD: Pursen, LLC v. QVC, Inc. et. al. Filed in U.S. District Court for the Northern District of Georgia, the Hon. William S. Duffey presiding. See http://news.priorsmart.com/-l76W for more info.
Official Complaint for Patent Infringement in Civil Action No. 1:12-cv-03997-WSD: Pursen, LLC v. QVC, Inc. et. al. Filed in U.S. District Court for the Northern District of Georgia, the Hon. William S. Duffey presiding. See http://news.priorsmart.com/-l76W for more info.
Hak Cipta:
Public Domain
Format Tersedia
Unduh sebagai PDF, TXT atau baca online dari Scribd
Official Complaint for Patent Infringement in Civil Action No. 1:12-cv-03997-WSD: Pursen, LLC v. QVC, Inc. et. al. Filed in U.S. District Court for the Northern District of Georgia, the Hon. William S. Duffey presiding. See http://news.priorsmart.com/-l76W for more info.
Hak Cipta:
Public Domain
Format Tersedia
Unduh sebagai PDF, TXT atau baca online dari Scribd
FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION
PURSEN, LLC,
PlaintiII,
v. CIVIL ACTION FILE
NO.
QVC, INC., GREAT INNOVATIONS, INC., and FOR LIFE PRODUCTS, INC.,
DeIendants.
JURY TRIAL DEMANDED
&203/$,17)253$7(17,1)5,1*(0(17 PlaintiII PURSEN, LLC ('PurseN), by and through its undersigned counsel, Iiles this original Complaint against DeIendants as Iollows: PARTIES 1. PurseN is a limited liability company organized and existing under the laws oI the State oI Georgia, and having a principle place oI business in Atlanta (Fulton County), Georgia. 2. DeIendant QVC, INC. ('QVC), is a Delaware corporation with a principal place oI business in West Chester, Pennsylvania. QVC may be served
2 with process in this action by and through its registered agent, Corporation Service Company, 2711 Centerville Rd., Ste. 400, Wilmington, DE 19808. 3. DeIendant GREAT INNOVATIONS, INC. ('GI), is a Florida corporation with a principal place oI business in Miramar, Florida. GI may be served with process in this action by and through its registered agent, Joseph McDonnell, 2301 SW 145th Avenue, Miramar, FL 33027. 4. DeIendant FOR LIFE PRODUCTS, INC. ('FLP), is a Florida corporation with a principal place oI business in Miramar, Florida. FLP may be served with process in this action by and through its registered agent, Gary Silberman, OIIices at Grand Bay Plaza, 2665 S. Bayshore Dr., Suite #725, Coconut Grove, FL 33133. JURISDICTION AND VENUE 5. This action arises under the Patent Laws oI the United States, 35 U.S.C. 1 et seq., including, without limitation, 35 U.S.C. 271, 281, 284, and 285, and the Lanham Act, 15 U.S.C. et seq., including without limitation 15 U.S.C. 1125. This Court has subject matter jurisdiction over the patent and unIair competition claims asserted in this case pursuant to 28 U.S.C. 1331 and 1338. This Court has subject matter jurisdiction over the state law claims asserted herein pursuant to 28 U.S.C. 1332 on the grounds that PurseN and DeIendants
3 are citizens oI diIIerent states and the amount in controversy exceeds $75,000 exclusive oI interest and costs, and pursuant to 28 U.S.C. 1367 on the grounds that such claims are so related to the patent inIringement and unIair competition claims asserted herein that they Iorm part oI the same case or controversy. 6. This Court has personal jurisdiction over DeIendants pursuant to O.C.G.A. 9-10-91 and Iederal law on the grounds that, upon inIormation and belieI, (i) each DeIendant transacts business within the State oI Georgia; (ii) each DeIendant has committed acts oI patent inIringement, and/or unIair competition within or directed toward residents oI the State oI Georgia; (iii) each DeIendant`s wrongIul acts have caused injury within the State oI Georgia, and each DeIendant regularly does or solicits business, engages in other persistent courses oI conduct, and/or derives substantial revenue Irom goods sold, used or consumed or services rendered in this state; (iv) each DeIendant purposeIully directs activities toward residents oI the State oI Georgia; (v) the causes oI action set Iorth herein arise Irom or relate to each DeIendant`s activities in or directed toward the State oI Georgia; and/or (vi) the exercise oI jurisdiction over DeIendants will not oIIend traditional notions oI Iair play and substantial justice. 7. More speciIically, upon inIormation and belieI, each DeIendant, directly and/or through intermediaries, has shipped, distributed, oIIered Ior sale,
4 sold, and/or advertised its inIringing products in the United States, the State oI Georgia, and the Northern District oI Georgia, either directly or indirectly, and/or has committed the tortious acts described herein purposeIully directed toward PurseN, which acts have caused injury within the State oI Georgia. 8. Venue is proper in the Northern District oI Georgia pursuant to 28 U.S.C. 1391 and 1400(b). FACTUAL BACKGROUND 9. PurseN designs, manuIactures and sells high-quality, stylish organizational products, including handbag organizers, jewelry cases, travel cases, totes and bags, and similar items. 10. PurseN`s signature product is the PurseN Organizer Insert, which was invented by PurseN`s CEO and Founder, Hardeep Melamed, and is the subject oI United States Patent No. 8,225,829 ('the `829 patent) (copy attached as Ex. 1). 11. The application that became the `829 patent was Iiled on March 31, 2008, and claimed priority to a provisional application Iiled on March 29, 2007. 12. The `829 patent issued on July 24, 2012, aIter Iull and Iair examination by the United States Patent OIIice. 13. The `829 patent is valid and enIorceable.
5 14. AIter the `829 patent application was Iiled, PurseN marked its products embodying the `829 patent 'Patent Pending. 15. AIter the `829 patent issued, PurseN marked its products with the `829 patent number. 16. PurseN is the assignee oI all right, title and interest in and to the `829 patent, such assignment having been executed and eIIective beIore the `829 patent issued. 17. PurseN began selling the PurseN Organizer Insert at trade shows in or around August oI 2008. PurseN`s Iirst products shipped in October oI 2008. 18. By the end oI 2008, the PurseN Organizer Insert was being sold in approximately 240 retail stores, and approximately 28 oI those stores had already re-ordered additional PurseN Organizer Inserts. 19. By the end oI 2009, a little more than a year aIter its launch, the PurseN Organizer Insert was being sold to 500 customers, mostly retail stores, throughout the United States. 20. PurseN sales Ior 2008 and 2009 exceeded $595,000. 21. The non-Iunctional aspects oI PurseN`s product design constitute protectable trade dress (the 'PurseN Trade Dress). The PurseN Trade Dress has
6 established secondary meaning in the marketplace such that purchasers have come to associate it with PurseN. 22. The PurseN Trade Dress includes the overall appearance and contrasting color and pattern combinations oI the PurseN Organizer Insert. The PURSEN Trade Dress is shown in Exhibit 2, and includes at least the Iollowing: a. Smooth, satiny matte Iabric covering rigid side walls, and expandable end and bottom walls, with a coordinating patterned Iabric lining the inside surIaces oI the walls; b. A Iabric strip extending horizontally across the outer surIace oI each end wall, at approximately mid-height; and c. Two pockets arranged on one outer side wall and one pocket centered on the opposing outer side wall oI the purse organizer; 23. PurseN notiIied DeIendants oI its pending patent application and trade dress inIringement claims prior to Iiling suit. COUNT I PATENT INFRINGEMENT 24. PurseN realleges and incorporates by reIerence the allegations set Iorth in paragraphs 1-23, above, as iI set Iorth verbatim herein. 25. DeIendants have directly inIringed the `829 patent in violation oI 35 U.S.C. 271(a) by making, importing, using, selling, or oIIering Ior sale in the
7 United States products that embody the patented invention. DeIendants` inIringing products include, without limitation, the 'PurseIection Interchangeble Purse Organizer and similar products, which inIringe at least claim 1 oI the `829 patent. 26. PurseN owned the `829 patent throughout the period oI the DeIendant`s inIringing acts and still owns the patent. 27. The DeIendants will continue inIringing the `829 patent unless enjoined by this court. 28. PurseN has complied with the marking requirements oI the patent laws oI the United States with respect to products sold by PurseN, including by marking 'Patent Pending on embodying products sold during the pendency oI the application which became the `829 patent, and by marking embodying products with the number oI the `829 patent once the patent issued. 29. DeIendants have had actual knowledge oI the `829 patent since at least as early as the Iiling oI this action. Upon inIormation and belieI, DeIendants have known about the `829 patent since it issued on or about July 24, 2012, PurseN having notiIied DeIendants in writing oI the pending patent application which became the `829 patent and PurseN`s claims that DeIendants` product would inIringe the patent once issued, as early as November 19, 2010.
8 30. DeIendants` inIringing activities are and have been without authority or license Irom either the inventor or Irom PurseN. 31. PurseN is entitled to recover Irom DeIendants the damages sustained by PurseN as a result oI DeIendants` inIringing acts in an amount subject to prooI at trial, which, by law, cannot be less than a reasonable royalty, together with increased damages, interest and costs as Iixed by this Court under 35 U.S.C. 284. COUNT II UNFAIR COMPETITION UNDER LANHAM ACT SECTION 43(s) TRADE DRESS INFRINGEMENT (15 U.S.C. 1125(a)) 32. PurseN realleges and incorporates by reIerence the allegations set Iorth in paragraphs 1-31, above, as iI set Iorth verbatim herein. 33. The PurseN Trade Dress is non-Iunctional. 34. The PurseN Trade Dress has acquired secondary meaning and is thereIore protectable. 35. DeIendants have sold, and continue to sell products which incorporate and copy the PurseN Trade Dress including, without limitation, DeIendants` PurseIection interchangeable purse organizer products. 36. DeIendants` inIringing PurseIection products have caused, and are likely to continue causing, consumer conIusion or mistake by Ialsely suggesting
9 that DeIendants` inIringing products are connected with, sponsored by, aIIiliated with, approved by, or related to PurseN. 37. DeIendants` sale oI PurseIection interchangeable purse organizer products incorporating the PurseN Trade Dress constitutes trade dress inIringement, Ialse designation oI origin and unIair competition in violation oI 15 U.S.C. 1125(a). 38. Upon inIormation and belieI, DeIendants` inIringing activities have caused and, unless enjoined by this Court, will continue to cause irreparable injury and other damage to PurseN`s business reputation and to the goodwill associated with the PurseN Trade Dress, including diversion oI customers, lost sales and lost proIits. PurseN has no adequate remedy at law. COUNT III GEORGIA DECEPTIVE TRADE PRACTICES ACT (O.C.G.A. 10-1-370 et seq.) 39. PurseN realleges and incorporates by reIerence the allegations set Iorth in paragraphs 1-38, above, as iI set Iorth verbatim herein. 40. DeIendants` unauthorized use oI the PurseN Trade Dress constitutes deceptive trade practices under the Georgia Deceptive Trade Practices Act, O.C.G.A. 10-1-370, et seq. 41. The public is likely to be substantially damaged as a result oI DeIendants` deceptive trade practices.
10 42. Unless enjoined by this Court, DeIendants will continue said deceptive trade practices, thereby deceiving the public and causing PurseN immediate and irreparable injury Ior which it has no adequate remedy at law. COUNT IV GEORGIA STATUTORY UNFAIR COMPETITION (O.C.G.A. 23-2-55) 43. PurseN realleges and incorporates by reIerence the allegations set Iorth in paragraphs 1-42, above, as iI set Iorth verbatim herein. 44. Upon inIormation and belieI, DeIendants` unauthorized use oI the PurseN Trade Dress has been with the intention oI deceiving and misleading the public, and thereby attempting to encroach upon the business oI PurseN in violation oI O.C.G.A. 23-2-55. 45. DeIendants` unauthorized use oI the PurseN Trade Dress has caused, and unless restrained by this Court, will continue to cause immediate and irreparable injury to PurseN because a substantial number oI past, present and potential customers have been and are likely to be conIused, deceived and misled as to the true source, origin, sponsorship, approval, authorization, association, aIIiliation and characteristics oI the products oIIered Ior sale and sold by DeIendants. PurseN has no adequate remedy at law Ior such injury.
11 COUNT V GEORGIA COMMON LAW UNFAIR COMPETITION 46. PurseN realleges and incorporates by reIerence the allegations set Iorth in paragraphs 1-45, above, as iI set Iorth verbatim herein. 47. DeIendants` unauthorized use oI the PurseN Trade Dress has been Ior the calculated purposes oI passing oII DeIendants` products as those oI PurseN, trading upon PurseN`s goodwill and reputation, and deceiving the public as to the true nature and characteristics oI DeIendants` products, all to DeIendants` proIit and to PurseN`s damage. 48. DeIendants` aIoresaid acts constitute unIair competition under the common law oI the State oI Georgia and have caused, and unless restrained by this Court will continue to cause, immediate and irreparable injury to PurseN`s goodwill and reputation, Ior which it has no adequate remedy at law. COUNT VI GEORGIA COMMON LAW TRADE DRESS INFRINGEMENT 49. PurseN realleges and incorporates by reIerence the allegations set Iorth in paragraphs 1-48, above, as iI set Iorth verbatim herein. 50. PurseN, by virtue oI its prior adoption and use oI the PurseN Trade Dress, in this judicial district and elsewhere, has acquired, established and owns valuable common law rights in said trade dress.
12 51. DeIendants` unauthorized use oI the PurseN Trade Dress constitutes copying and imitation oI the PurseN Trade Dress, Ialsely designates the origin oI DeIendants` products, causes conIusion, mistake and deception in the marketplace, and is likely to cause Iurther conIusion, mistake or deception in the marketplace, and thereIore inIringes PurseN`s common law rights in the PurseN Trade Dress in violation oI the common law oI the State oI Georgia. 52. DeIendants` actions complained oI herein, unless enjoined by this Court, will continue to result in a likelihood oI Iurther conIusion, mistake and deception oI the public concerning the sources or origin oI products oIIered Ior sale and sold by DeIendants, and will continue to produce irreparable injury and damage to PurseN and its goodwill and business reputation, Ior which PurseN has no adequate remedy at law. COUNT VII GEORGIA COMMON LAW UNJUST ENRICHMENT 53. PurseN realleges and incorporates by reIerence the allegations set Iorth in paragraphs 1-52, above, as iI set Iorth verbatim herein. 54. DeIendants` unauthorized use oI the PurseN Trade Dress in connection with the advertising, promoting and sale oI DeIendants` goods and services, Irom which DeIendants have derived substantial proIits, has unjustly enriched DeIendants by enabling them to unIairly appropriate the beneIit oI
13 PurseN`s extensive use, promotion and development oI the PurseN Trade Dress and the goodwill associated therewith. 55. DeIendants have earned revenues and proIits to which they are not legally entitled, and PurseN continues to be irreparably injured by the aIoresaid acts oI DeIendants, which acts have greatly and unjustly enriched DeIendants at PurseN`s expense, Ior which injury PurseN has no adequate remedy at law. COUNT VIII - GEORGIA COMMON LAW MISAPPROPRIATION AND CONVERSION 56. PurseN realleges and incorporates by reIerence the allegations set Iorth in paragraphs 1-55, above, as iI set Iorth verbatim herein. 57. DeIendants, through the unauthorized use oI the PurseN Trade Dress, have misappropriated the PurseN Trade Dress, and have unlawIully converted to their own use and exploited PurseN`s property and commercial likeness, thereby reaping Ior themselves the beneIits oI PurseN`s prior use, promotion and development oI the PurseN Trade Dress, and the goodwill symbolized thereby. 35$<(5)255(/,() WHEREFORE, PurseN prays Ior relieI as Iollows:
A. Entry oI an order and judgment requiring that DeIendants and their agents, servants, employees, owners and representatives, and all other persons, Iirms or corporations in active concert or participation with them, be enjoined and
14 restrained Irom (a) any Iurther inIringement oI the `829 patent; (b) using in any manner the PurseN Trade Dress, or any conIusingly similar to or colorable imitation oI the PurseN Trade Dress; and (c) doing any act or thing that is calculated or likely to cause conIusion or mistake in the minds oI members oI the public or prospective customers oI PurseN`s or DeIendants` products or services as to the source oI the products or services oIIered Ior sale, distributed, or sold, or that is likely to deceive members oI the public, or prospective customers, into believing that there is some connection, aIIiliation, or sponsorship between DeIendants and PurseN; B. A judgment ordering DeIendants, pursuant to 15 U.S.C. 1116(a), to Iile with this Court and serve upon PurseN within thirty (30) days aIter entry oI the injunction, a report in writing under oath setting Iorth in detail the manner and Iorm in which DeIendants have complied with the injunction and ceased all oIIering oI services under the DeIendants` trade names and trademarks as set Iorth above; C. A judgment ordering DeIendants, pursuant to 15 U.S.C. 1118, to deliver up Ior destruction, or to show prooI oI said destruction or suIIicient modiIication to eliminate the inIringing matter, all articles, web pages, video, packages, wrappers, products, displays, labels, signs, vehicle displays or signs,
15 circulars, kits, packaging, letterhead, business cards, promotional items, clothing, literature, sales aids, receptacles or other matter in the possession, custody, or under the control oI DeIendants or their agents bearing the PurseN Trade Dress in any manner, or any trade dress or product conIiguration that is conIusingly similar to or a colorable imitation oI the PurseN Trade Dress; D. An accounting and award oI damages Ior DeIendants inIringement oI the `829 patent, which by law cannot be less than a reasonable royalty, together with increased damages, pre- and post- judgment interest, costs and attorney`s Iees. E. A judgment in the amount oI PurseN`s actual trade dress inIringement damages, DeIendants` proIits, PurseN`s reasonable attorneys` Iees and costs oI suit, pre-judgment interest, and post-judgment interest; F. A judgment Ior enhanced damages under 15 U.S.C. 1117 and punitive damages under state law as appropriate; and G. A judgment granting PurseN such other and Iurther relieI as the Court deems just and proper. JURY DEMAND PurseN hereby demands a trial by jury oI all issues so triable.
16
This 15th day oI November, 2012. KENT LAW, P.C.
/s/Daniel A. Kent Daniel A. Kent Georgia Bar Number 415110 dankentiplit.com 555 N Point Ctr E Ste 400 Alpharetta, GA 30022 Tel: (404) 585-4214 Fax: (404) 829-2412