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Case 2:17-cv-00738-JNP Document 2 Filed 07/03/17 Page 1 of 14

David P. Johnson (13260); Email: djohnson@wnlaw.com


WORKMANNYDEGGER A PROFESSIONAL CORPORATION
60 East South Temple, Suite 1000
Salt Lake City, UT 84111
Telephone: (801) 533-9800
Facsimile: (801) 328-1707

David Donahue (pro hac vice forthcoming)


Jason D. Jones (pro hac vice forthcoming)
Jessica Vosgerchian (pro hac vice forthcoming)
FROSS ZELNICK LEHRMAN & ZISSU, P.C.
4 Times Square, Fl. 17
New York, New York 10036

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT


DISTRICT OF UTAH, CENTRAL DIVISION

FATBOY THE ORIGINAL B.V. and FATBOY Civil Action No.: 2:17-cv-00738
USA, LLC
Honorable Jill N. Parrish
Plaintiffs,
v. COMPLAINT

TREVOR CHAPMAN D/B/A LDS MAN

Defendant.

Plaintiffs Fatboy the Original B.V. (Fatboy) and Fatboy USA, LLC (Fatboy USA and,

together with Fatboy, Plaintiffs), for their Complaint against Defendant Trevor Chapman d/b/a

LDS Man (Defendant), allege as follows:

SUBSTANCE OF THE ACTION

1. Fatboy is the owner of all rights worldwide in and relating to the wildly popular

LAMZAC THE ORIGINAL inflatable lounger (the LAMZAC Lounger), including U.S.

Patent Nos. D764,823 and D775,479 (the LAMZAC Lounger Patents). Fatboy USA has an

exclusive license from Fatboy to distribute and promote the LAMZAC Lounger in the United

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States. All of the claims asserted herein arise out of and are based on Defendants brazen and

willful infringement of Plaintiffs intellectual property rights not only in the LAMZAC Lounger

Patents, but also in Plaintiffs copyrights associated with marketing material for the LAMZAC

Lounger.

2. Plaintiffs bring claims for design patent infringement under Section 271 of the U.S.

Patent Act, 35 U.S.C. 271, copyright infringement under Sections 106 and 501 of the U.S.

Copyright Act of 1976, 17 U.S.C. 106, 501, removal of copyright management information

and use of false copyright management information in violation of the Digital Millennium

Copyright Act (DMCA), 17 U.S.C. 1202, unfair competition under Section 43(a) of the

Lanham Act, 15 U.S.C. 1125(a), and unfair competition under Utah Code Ann. 13-5a-103.

3. Plaintiffs seek injunctive relief to stop Defendants unlawful distribution and sale of

his infringing product, as well as his unlawful use of the LAMZAC Lounger marketing

material. Plaintiffs also seek monetary relief in an amount sufficient to compensate for their

loss, an accounting and award of Defendants total profits flowing from his infringing activities,

statutory damages under Section 1203 of the DMCA, prejudgment interest, costs and attorneys

fees, and all other relief the Court deems just and proper.

JURISDICTION AND VENUE

4. This Court has jurisdiction under Sections 1331, 1332, and 1338(a) and (b), of the

Judicial Code, 28 U.S.C. 1331, 1332, 1338(a) & (b).

5. This Court has personal jurisdiction over Defendant under Federal Rule of Civil

Procedure 4(k)(1)(A) and Utah Code Ann. 78B-3-205 because Defendant resides in the State

of Utah, and, upon information and belief, (i) regularly does and solicits business within the

State of Utah; (ii) has engaged in the marketing, promotion, advertising and offering for sale of

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his infringing products within the State of Utah, including via his interactive ecommerce

website; and (iii) has committed torts in the State of Utah, namely the marketing, promotion,

advertising, sale and/or offering for sale of his infringing product in Utah, in violation of

Plaintiffs rights.

6. Venue is proper under Section 1391(b) and 1400 of the Judicial Code, 28 U.S.C.

1391(b), 1400, as Defendant resides and may be found in the District of Utah, and has

committed acts of infringement and has a regular and established place of business within the

District of Utah.

THE PARTIES

7. Plaintiff Fatboy the Original B.V. is a limited liability company organized and

existing under the laws of the Netherlands, having a place of business at De Steenbok 19 Den

Bosch, 5215 MG Netherlands.

8. Plaintiff Fatboy USA, LLC is a limited liability company organized and existing

under the laws of the State of North Carolina, with its principal place of business at 875 West

Sandy Lake Road, #100, Coppell, TX 75019.

9. Upon information and belief, Defendant Trevor Chapman d/b/a LDS Man, is an

individual residing in the State of Utah, who has a place of business at 385 N. Wright Brothers

Drive, Unit #2, Salt Lake City, Utah 84116.

FACTS COMMON TO ALL CLAIMS FOR RELIEF

I. THE LAMZAC LOUNGER PATENTS

A. Plaintiffs Design Patents in the LAMZAC Lounger

10. Mr. Marijn Oomen, a resident of the Netherlands, is the designer of the LAMZAC

Lounger.

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11. Mr. Oomen has assigned to Fatboy all of his rights in the design of the LAMZAC

Lounger, as well as his copyrights in all marketing materials for the LAMZAC Lounger.

12. The LAMZAC Lounger Patents each depict the design of a lounger. Profile views

of the patented designs as they appear in the LAMZAC Lounger Patents are shown below:

U.S. Patent No. D764,823

U.S. Patent No. D775,479

13. Fatboy USA has an exclusive license from Fatboy to distribute and promote

products embodying the LAMZAC Lounger Patents in the United States.

14. The LAMZAC Lounger Patents each claim a priority date of January 28, 2015,

based on Fatboys Registered European Community Design No. 002621904-0001.

B. Plaintiffs Copyrights in the LAMZAC Marketing Materials

15. Mr. Oomen is the author of numerous photographs of and instructional videos

showing the LAMZAC Lounger, which images and videos were subsequently used in

connection with the advertisement, promotion, and sale of the LAMZAC Lounger.

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16. Mr. Oomen created these works in the Netherlands. His copyrights in these

LAMZAC Lounger marketing materials were assigned to Fatboy and Fatboy USA is the

exclusive licensee of those copyrights.

II. DEFENDANTS INFRINGING ACTIVITIES

17. On information and belief, Defendant has manufactured, advertised, offered for

sale, sold, distributed, imported, and/or exported an inflatable lounger called the The Hangout

Bag (the Infringing Product), with a design that is substantially the same as the designs

depicted in the LAMZAC Lounger Patents. An example of the Infringing Product is shown

below:

18. Upon information and belief, Defendant markets and sells his Infringing Product

online at his website, http://www.ldsman.com.

19. In addition, without Plaintiffs authorization, Defendant has displayed exact copies

and digitally-altered versions of Plaintiffs LAMZAC Lounger marketing material, an example

of which is shown below:

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Fatboy Original Image The Hangout Bag Copied Image

(the LAMZAC Marketing Image).

20. Upon information and belief, Defendant has used this image not only on his

website but also in social media posts and Internet advertising. In addition, Defendant has

posted exact copies of a LAMZAC Lounger instructional video (LAMZAC Instructional

Video and, together with the LAMZAC Instructional Image, the LAMZAC Marketing

Materials) on his LDS Man YouTube channel, as well as on Internet advertisements for the

Infringing Product. Through this conduct, Defendant has falsely represented that Plaintiffs

proprietary LAMZAC Marketing Materials are marketing material for (and constitute images

of) Defendants Infringing Product.

21. Upon information and belief, Defendant engaged and continues to engage in the

above activities willfully, with the knowledge that the design of the Infringing Product is

substantially same as the designs depicted in the LAMZAC Lounger Patents without

authorization.

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22. Defendant is not related to or affiliated with Plaintiffs in any way. Defendant has

not received a license or authorization from Plaintiffs for any purpose whatsoever, including for

the acts described herein.

23. Defendants unauthorized acts as described herein have caused and will continue

to cause irreparable damage to Plaintiffs and their business unless restrained by this Court.

FIRST CLAIM FOR RELIEF:


DESIGN PATENT INFRINGEMENT
IN VIOLATION OF 35 U.S.C. 271 (Patent No. D764,823)

24. Plaintiffs repeat and incorporate by reference the foregoing allegations as if fully

set forth herein.

25. Fatboy owns U.S. Patent No. D764,823, which issued on August 30, 2016.

Fatboy USA has an exclusive license from Fatboy to distribute and promote products

embodying the design set forth in U.S. Patent No. D764,823 in the United States.

26. U.S. Patent No. D764,823 is valid and subsisting.

27. Upon information and belief, Defendant, without authorization from Plaintiffs, has

distributed, advertised, promoted, offered for sale and sold the Infringing Product, the design of

which is substantially the same as the design set forth in U.S. Design Patent No. D764,823, and

embodies the design protected by such patent.

28. Defendants Infringing Product appropriates the novel ornamental features set

forth in U.S. Patent No. D764,823 such that an ordinary observer familiar with the prior art

designs, giving such attention as a purchaser usually gives, would find Plaintiffs and

Defendants designs to be substantially the same and would be deceived into believing that the

Infringing Product is the same as Fatboys patented design.

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29. By the foregoing acts, Defendant has directly infringed, infringed under the

doctrine of equivalents, contributorily infringed, and/or induced infringement of, and continues

to so infringe, U.S. Patent No. D764,823.

30. Upon information and belief, Defendants aforesaid conduct has been undertaken

knowingly, willfully, and in bad faith, and with knowledge of Plaintiffs rights.

31. Defendants conduct violates Section 271 of the Patent Act, 35 U.S.C. 271 and

has caused, and unless enjoined by this Court, will continue to cause, Plaintiffs to sustain

irreparable damage, loss, and injury, for which Plaintiffs have no adequate remedy at law.

32. Plaintiffs have complied with 35 U.S.C. 287 to the extent it is applicable to

them.

SECOND CLAIM FOR RELIEF:


DESIGN PATENT INFRINGEMENT
IN VIOLATION OF 35 U.S.C. 271 (Patent No. D775,479)

33. Plaintiffs repeat and incorporate by reference the foregoing allegations as if fully

set forth herein.

34. Fatboy owns U.S. Patent No. D775,479, which issued on January 3, 2017. Fatboy

USA has an exclusive license from Fatboy to distribute and promote products embodying the

design set forth in U.S. Patent No. D775,479 in the United States.

35. U.S. Patent No. D775,479 is valid and subsisting.

36. Upon information and belief, Defendant, without authorization from Plaintiffs,

has distributed, advertised, promoted, offered for sale and sold the Infringing Product, the

design of which is substantially the same as the design set forth in U.S. Design Patent No.

D775,479 and embodies the design protected by such patent.

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37. Defendants Infringing Product appropriates the novel ornamental features set

forth in U.S. Patent No. D775,479 such that an ordinary observer familiar with the prior art

designs, giving such attention as a purchaser usually gives, would find Plaintiffs and

Defendants designs to be substantially the same and would be deceived into believing that the

Infringing Product is the same as Fatboys patented design.

38. By the foregoing acts, Defendant has directly infringed, infringed under the

doctrine of equivalents, contributorily infringed, and/or induced infringement of, and continues

to so infringe, U.S. Patent No. D775,479.

39. Upon information and belief, Defendants aforesaid conduct has been undertaken

knowingly, willfully, and in bad faith, and with knowledge of Plaintiffs rights.

40. Defendants conduct violates Section 271 of the Patent Act, 35 U.S.C. 271 and

has caused, and unless enjoined by this Court, will continue to cause, Plaintiffs to sustain

irreparable damage, loss, and injury, for which Plaintiffs have no adequate remedy at law.

41. Plaintiffs have complied with 35 U.S.C. 287 to the extent it is applicable to them.

THIRD CLAIM FOR RELIEF:


COPYRIGHT INFRINGEMENT IN VIOLATION OF 17 U.S.C. 501

42. Plaintiffs repeat and incorporate by reference the foregoing allegations as if fully

set forth herein.

43. The LAMZAC Marketing Materials are original and creative works of visual art

that were authored in the Netherlands and are protected under U.S. Copyright Law. Fatboy is

the owner by assignment of all rights under U.S. copyright in the LAMZAC Marketing

Materials and Fatboy USA is the exclusive licensee of all such rights.

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44. Defendant, without Plaintiffs authorization or consent, has advertised, reproduced,

and/or displayed the LAMZAC Marketing Materials on Defendants website, on social media,

on YouTube, and on Internet advertising.

45. Defendant had access to the LAMZAC Marketing Materials.

46. Defendant has violated and, upon information and belief, continues to violate,

Plaintiffs exclusive rights in the LAMZAC Marketing Materials under Section 106 of the

Copyright Act, 17 U.S.C. 106, in violation of Section 501 of the Copyright Act, 17 U.S.C.

501.

47. Defendants aforesaid conduct has been undertaken knowingly, willfully and in

bad faith.

48. Defendants infringement of Plaintiffs exclusive rights in the LAMZAC

Marketing Materials has caused Plaintiffs damage, and has enabled Defendant to profit illegally

therefrom.

49. Defendants copyright infringement has caused, and unless enjoined by this Court,

will continue to cause, Plaintiffs to sustain irreparable damage, loss and injury, for which

Plaintiffs have no adequate remedy at law.

FOURTH CLAIM FOR RELIEF:


VIOLATION OF THE DIGITAL MILLENIUM COPYRIGHT ACT, 17 U.S.C. 1202

50. Plaintiffs repeat and incorporate by reference the foregoing allegations as if fully

set forth herein.

51. Defendant has intentionally removed copyright management information

(CMI)namely, FATBOY and LAMZACfrom the LAMZAC Marketing Materials.

52. Upon information and belief, Defendant removed CMI to facilitate or conceal the

infringement of Plaintiffs copyrights in the LAMZAC Marketing Materials.

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53. Defendant has violated and, upon information and belief, continues to violate, the

Digital Millennium Copyright Act (DMCA), 17 U.S.C. 1202.

54. Defendants aforesaid conduct has been undertaken knowingly, willfully and in

bad faith.

55. Defendants violation of the DMCA has caused Plaintiffs damage, and has

enabled Defendant to profit illegally therefrom.

56. Defendants infringement has caused, and unless enjoined by this Court, will

continue to cause, Plaintiffs to sustain irreparable damage, loss and injury, for which Plaintiffs

have no adequate remedy at law.

FIFTH CLAIM FOR RELIEF:


UNFAIR COMPETITION
IN VIOLATION OF 15 U.S.C. 1125(a)

57. Plaintiffs repeat and incorporate herein by reference the foregoing allegations

contained in paragraphs 1-56.

58. Defendant has engaged in bait-and-switch advertising by using the LAMZAC

Marketing Materials, which depict the LAMZAC Lounger, to promote sales, and then

delivering to purchasers Infringing Products instead of genuine LAMZAC Loungers.

59. Defendants conduct constitutes a false designation of origin, false or misleading

description of fact, and false or misleading representation of fact that is likely to cause

confusion, or to cause mistake, or to deceive as to the origin, sponsorship, or approval of the

Infringing Product.

60. As a result of the foregoing, Defendant has engaged in unfair competition in

violation of Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a).

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61. Upon information and belief, Defendants aforesaid conduct has been undertaken

knowingly, willfully, and in bad faith.

62. Defendants aforesaid conduct has caused, and unless enjoined by this Court, will

continue to cause, Plaintiffs to sustain irreparable damage, loss, and injury, for which Plaintiffs

have no adequate remedy at law.

SIXTH CLAIM FOR RELIEF:


COMMON LAW UNFAIR COMPETITION UNDER UTAH CODE ANN. 13-5A-103

63. Plaintiffs repeat and incorporate herein by reference the foregoing allegations

contained in paragraphs 1-62.

64. Defendants aforesaid conduct, including his intentional, unethical, and false

representation that Plaintiffs proprietary LAMZAC Marketing Materials constitute images of

Defendants Infringing Product when in fact they do not, constitutes intentional business acts or

practices that are unlawful and unfair, constitute infringement of a patent, and have led to a

material diminution in the value of Plaintiffs intellectual property. As such, Defendants

conduct constitutes common law unfair competition with Plaintiffs under Utah Code Ann. 13-

5a-103.

65. Defendants aforesaid conduct of common law unfair competition has caused, and

unless enjoined by this Court, will continue to cause, Plaintiffs to sustain irreparable damage,

loss, and injury, for which Plaintiffs have no adequate remedy at law.

WHEREFORE, Plaintiffs pray for judgment against Defendant as follows:

1. Permanently enjoining and restraining Defendant, his agents, servants, employees,

successors, and assigns and all those in active concert or participation with him, from:

(a) infringing or inducing infringement of the LAMZAC Lounger Patents; or

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(b) infringing the LAMZAC Marketing Image and LAMZAC Instructional Video,

including, without limitation, by reproducing, distributing, displaying, advertising, promoting,

offering for sale, selling, importing or exporting any works copied or derived from the

LAMZAC Marketing Materials;

(c) removing or altering any CMI from, or providing or distributing any false CMI in

connection with, the LAMZAC Marketing Materials;

(d) assisting, aiding or abetting any other person or business entity in engaging in or

performing any of the activities referred to in subparagraphs (a) (c) above.

2. Directing that Defendant turn over to Plaintiffs for impoundment and eventual

destruction, without compensation to Defendant, all materials in his possession or control that

violate the provisions of paragraph 1(a) above, along with all articles by means of which such

unauthorized copies may be reproduced.

3. Directing that Defendant, at his own expense, recall from any distributors, retailers,

vendors, or others to whom he has distributed materials that violate the provisions of paragraph 1(a)

above, and that Defendant deliver up to Plaintiffs for destruction all materials returned to him.

4. Directing that Defendant file with the Court and serve upon Plaintiffs, within thirty

(30) days of the entry of injunction prayed for herein, a written report under oath or affirmed under

penalty of perjury setting forth in detail the form and manner in which he has complied with the

permanent injunction.

5. Awarding Plaintiffs all damages sustained as a result of Defendants conduct

described above pursuant to 15 U.S.C. 1117(a), 17 U.S.C. 504(a), 35 U.S.C. 284, and Utah

Code Ann. 13-5a-103, and that such sums be trebled pursuant to 15 U.S.C. 1117(a) and 35

U.S.C. 284.

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6. Awarding Plaintiffs the total profits realized by Defendant from his conduct

described above pursuant to 15 U.S.C. 1117(a), 17 U.S.C. 504(a), and 35 U.S.C. 289.

7. If Plaintiffs so elect and as the Court considers just, awarding Plaintiffs statutory

damages of up to $25,000 per violation of the DMCA pursuant to 17 U.S.C. 1203(c)(3)(B).

8. Granting Plaintiffs punitive damages pursuant to Utah Code Ann. 13-5a-103(1)(b).

9. Granting Plaintiffs their full costs, including, as part of such costs, reasonable

attorneys fees pursuant to 15 U.S.C. 1117(a), 17 U.S.C. 1203(b)(4)-(5), 35 U.S.C. 285, and

Utah Code Ann. 13-5a-103(1)(b)(ii).

10. Granting Plaintiffs both pre-judgment and post-judgment interest on each and every

monetary award.

11. Granting Plaintiffs such other and further relief as the Court may consider equitable,

just and proper.

WORKMAN NYDEGGER

Dated: July 3, 2017 By: /s/ David P. Johnson


David P. Johnson_(USB No. 13260)
Email: djohnson@wnlaw.com
WORKMAN | NYDEGGER
60 East South Temple, Suite 1000
Salt Lake City, Utah 84111
Telephone: (801) 533-9800
Facsimile: (801) 328-1707

David Donahue (pro hac vice forthcoming)


Jason D. Jones (pro hac vice forthcoming)
Jessica Vosgerchian (pro hac vice forthcoming)
FROSS ZELNICK LEHRMAN & ZISSU, P.C.
4 Times Square, Fl. 17
New York, New York 10036

Attorneys for Plaintiffs

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