Case 1:18-cv-08023 Document 1 Filed 09/04/18 Page 1 of 6

Ronald A. Giller, Esq.

Jennifer A. Guidea, Esq.
GORDON & REES LLP
1 Battery Park Plaza, 28th Floor
New York, NY 10004
Tel: (973) 549-2500
Fax: (973) 377-1911
Email: rgiller@gordonrees.com
Counsel for Plaintiff
Thirty Three Threads, Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

THIRTY THREE THREADS INC., Case No.:

Plaintiff,

-against-
COMPLAINT FOR PATENT
INFRINGEMENT OF U.S. PATENT NO.
ARGENTO SC, THE TJX COMPANIES, INC.
D707,036
AND DOES 1-10,
Defendants. DEMAND FOR JURY TRIAL

Plaintiff, Thirty-Three Threads, formerly known as Toesox, Inc. (hereinafter “Plaintiff”),

for its Complaint against Argento SC (“Argento”) and The TJX Companies, Inc. (“TJX”), states

and alleges as follows:

PARTIES

1. Plaintiff, Thirty-Three Threads, Inc., formerly known as Toesox, Inc., is a

corporation organized and existing under the laws of the State of California, and having a

principal place of business at 1330 Park Center Drive, Vista, California, 92081.

2. Upon information and belief, Defendant Argento is a corporation organized and

existing under the laws of the State of New York and having a principal place of business at

1407 Broadway, New York, New York, 10018.

 Case 1:18-cv-08023 Document 1 Filed 09/04/18 Page 2 of 6

3. Upon information and belief, Defendant TJX is a corporation organized and

existing under the laws of the State of Delaware and having a principal place of business at 770

Cochituate Road, Framingham, Massachusetts 10701. TJX operates 80 TJ Maxx department

stores within the State of New York, including stores located at 620 Avenue of the Americas,

New York, NY and 808 Columbus Avenue, New York, NY.

4. The true names and capacities of the Defendants names herein as DOES 1

through 10, whether individual, corporate, associate or otherwise, are unknown to Plaintiff, who

therefore sues said Defendants by said fictitious names. Plaintiff is informed and believes, and

thereon alleges, that each of the Defendants designated herein as DOE is legally responsible for

the events and happenings hereinafter herein alleged. Plaintiff will seek leave to amend the

Complaint when the true names and capacities of said DOE Defendants have been ascertained.

5. Plaintiff is informed and believes, and on that basis alleges, that each of the

Defendants participated in and is in some manner responsible for the acts described in this

Complaint and any damages resulting therefrom.

6. Plaintiff is informed and believes, and on that basis alleges, that each of the

Defendants has acted in concert and participation with each other concerning each of the claims

in this Complaint.

7. Plaintiff is informed and believes, and on that basis alleges, that each of the

Defendants were empowered to act as the agent, servant and/or employees of each of the other

Defendants, and that all the acts alleged to have been done by each of them were authorized,

approved and/or ratified by each of the other Defendants.

2
 Case 1:18-cv-08023 Document 1 Filed 09/04/18 Page 3 of 6

JURISDICTION AND VENUE

8. This action, as hereinafter more fully appears, arises under the patent laws of the

United States of America (35 U.S.C. §§ 1 et seq.), and is for patent infringement. Jurisdiction

for all counts is based upon 29 U.S.C. §§ 1331, 1338(a) and (b).

9. Venue is proper under 28 U.S.C. §§ 1391(b) and (c) and 1400(b) as Defendants

have committed acts of infringement in this judicial district and have a regular and established

place of business herein.

BACKGROUND OF THE CONTROVERSY

10. On June 17, 2014, United States Patent No. D707,036 entitled “Sock” (“the ‘036

patent”) was duly and legally issued to Joe Patterson. Plaintiff is the record owner by

assignment of the ‘036 patent with full and exclusive right to bring suit to enforce this patent. A

true and correct copy of the ‘036 patent is attached hereto as Exhibit A.

11. The ‘036 patent relates generally to foot apparel, including a woven sock having

an open top and five separate openings for each of the toes.

12. Prior to the initial filing of the instant action, Plaintiff purchased from

Defendants’ website at https://tjmaxx.tjx.com/store/jump/product/Open-Toe-Open-Top-Yoga-

Socks/1000371505?colorId=NS1003495&pos=1:1&Ntt=yoga, a yoga sock, sold under the name

“Self.” A true and correct copy of the Self product is attached hereto as Exhibit B. A true and

correct copy of the web page, as well as a receipt for purchase of the product, is attached hereto

as Exhibit C.

13. Upon information and belief, Defendants are also offering the product for sale in

TJ Maxx locations within the State of New York.

3
 Case 1:18-cv-08023 Document 1 Filed 09/04/18 Page 4 of 6

14. Defendants’ sock product has no non-infringing use as it is solely intended to be

worn as foot apparel, including as a yoga sock.

15. Defendants have been and are infringing the ‘036 patent by making, using,

offering for sale, selling and/or importing the sock product. Defendants’ acts of infringement

have occurred within this district and elsewhere throughout the United States.

16. Additionally, Defendants were notified of the infringement of the ‘036 patent by

correspondence dated June 1, 2018. A true copy of this notification is attached hereto as Exhibit

D. Despite such notification, Defendants have continued to make, use, offer for sale, sell and/or

import the sock product. Defendants’ continuing acts of infringement have occurred within this

district and elsewhere throughout the United States.

FIRST CLAIM FOR RELIEF

17. Plaintiff realleges and repeats the allegations of paragraphs 1-16 herein.

18. Plaintiff is the owner of all right, title and interest to United States Patent No.

D707,036 entitled “Sock.” A true and correct copy of the ‘036 patient was duly and lawfully

issued on June 17, 2014 and is presently valid and in full effect.

19. Upon information and belief, Defendants have been and are infringing the ‘036

patent within this district and elsewhere in the United States by making, using, selling,

importing, distributing and/or offering for sale products that infringe one or more of the claims of

the ‘036 patent.

20. Upon information and belief, Defendants are contributorily infringing the ‘036

patent within this district and elsewhere in the United States by making, using, selling,

importing, distributing or offering for sale in the United States materials for use in practicing the

inventions set forth in the ‘036 patient, that they know to be especially made or especially

4
 Case 1:18-cv-08023 Document 1 Filed 09/04/18 Page 5 of 6

adapted for use in infringement of the invention embodied in the ‘036 patient. Upon information

and belief, these materials have no substantial non-infringement use in commerce.

21. Upon information and belief, Defendants are inducing infringement of the ‘036

patent within this district and elsewhere in the United States by instructing in the use of materials

that infringe one or more claims of the ‘036 patient.

22. Upon information and belief, by the acts of patent infringement herein

complained of, the Defendants have made substantial profits to which they are not equitably

entitled.

23. By reason of the aforementioned acts of the Defendants, the Plaintiff has suffered

great detriment in a sum which exceeds this Court’s jurisdictional amount, but which cannot be

ascertained at this time.

24. Upon information and belief, Defendants continue to infringe Plaintiff’s ‘036

patient, and will continue to infringe Plaintiff’s ‘036 patent to Plaintiff’s irreparable harm, unless

enjoined by this Court.

25. Any continuing infringement of the ‘036 patient by Defendants after receiving

notice of the ‘036 patient will be willful, entitling Plaintiff to enhanced damages.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment against the Defendants as follows:

A. A judgment that Defendants have infringed, contributorily infringed, and/or

induced infringement of the patent-in-suit;

B. A judgment that Defendants’ infringement of the patent-in-suit has been willful;

C. A preliminary and permanent injunction, pursuant to 35 U.S.C. § 283, enjoining

Defendants and all persons in active concert or participation with them, from any further acts

5
 Case 1:18-cv-08023 Document 1 Filed 09/04/18 Page 6 of 6

of infringement, contributory infringement or inducement of infringement of the patents-in-

suit.

D. An order, pursuant to 35 U.S.C. § 284, awarding Plaintiff damages adequate to

compensate Plaintiff for Defendants’ infringement of the patent-in-suit, in an amount to be

determined at trial, but in no event less than a reasonable royalty.

E. An order, pursuant to 35 U.S.C. § 284, trebling all damages awarded to Plaintiff

based on Defendants’ willful infringement of the patents-in-suit;

F. An order, pursuant to 35 U.S.C. § 285, finding that this is an exceptional case and

awarding to Plaintiff its reasonable attorneys’ fees incurred in this action; and

G. That Plaintiff have such other and further relief that the Court may deem just and

proper.

Dated: September 4, 2018

GORDON & REES LLP

Attorneys for Plaintiff
Thirty-Three Threads, Inc..

By: /s/ Ronald A. Giller

Ronald A. Giller
Jennifer A. Guidea
1 Battery Park Plaza, 28th Floor
New York, NY 10004
Tel: (973) 549-2500
Fax: (973) 377-1911
Email: rgiller@gordonrees.com

6
 Case 1:18-cv-08023 Document 1-1 Filed 09/04/18 Page 1 of 3
USOOD707036S

(12) United States Design Patent (10) Patent No.: USD707,036S

Patterson (45) Date of Patent: Jun. 17, 2014
(54) SOCK 7,784,115 B1* 8/2010 Nemcik ............................ 2,239
D626,740 S * 1 1/2010 Stevenson ... D2,981
7.882,714 B2 * 2/2011 Roberts ........................... 66/186
(71) Applicant: ToeSox, Inc., Vista, CA (US) D662,311 S * 6/2012 Sudit ....... ... D2,980
ck
(72) Inventor: Joe Patterson, Carlsbad, CA (US) E. s ck 38. R. O. r R38s.
D687,155 S * 7/2013 Caden ............ ... D24, 192
(73) Assignee: ToeSox, Inc., Vista, CA (US) 2008/O127520 A1* 6/2008 Luedecke et al. ............... 36,102
2010/0212068 A9 8, 2010 Nemcik ............................ 2,239
ck
(**) Term: 14 Years * cited by examiner
(21) Appl. No. 29/464,408 Primary Examiner — T. Chase Nelson
(22) Filed: Aug. 15, 2013 Assistant Examiner — Kathleen M Sims
(51) LOC (10) Cl. ................................................ 02-04 R Attorney, Agent, or Firm — Todd J. Langford; Eric A.
aSCO
(52) U.S. Cl.
USPC ........................................................... D2A98O (57) CLAM
(58) Field of Classification Search The ornamental design for a sock, as shown and described.
USPC .......................... D2/897898, 980994, 902;
2/239-242, 409: 66/178 R: 36/88,94, DESCRIPTION
36/102
See application file for complete search history. FIG. 1 is a perspective view of a sock, showing my new design
while in use;
(56) References Cited FIG. 2 is a bottom view:
U.S. PATENT DOCUMENTS FIG. 3 is a left side view:
FIG. 4 is a back view:
39,569 A 8, 1863 Harmon ............................ 2230 FIG. 5 is a top view:
5,867,838 A * 2/1999 Corry ................................ 2,239 FIG. 6 is a front; and,
5,906,007 A * 5/1999 Roberts ............................. 2,239 FIG. 7 is a right side view thereof.
6,324,698 B1 12/2001 Freeman ........................... 2,239 The broken lines are included for the purpose of showing
D498,916 S * 1 1/2004 Lowell ... ... D2,980
7,107,626 B1* 9/2006 Andrews ........................... 2,239 environmental structure and form no part of the claimed
D538,527 S * 3/2007 Ransan . D2/989 design.
D548,951 S * 8/2007 Paulin ...... ... D2,980
D581,654 S * 12/2008 Miliotis ......................... D2/980 1 Claim, 2 Drawing Sheets
Case 1:18-cv-08023 Document 1-1 Filed 09/04/18 Page 2 of 3
 Case 1:18-cv-08023 Document 1-1 Filed 09/04/18 Page 3 of 3

U.S. Patent Jun. 17, 2014 Sheet 2 of 2 USD707,036S

aMMAAAA
NNNNNNWWW
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FIG. 4 FIG. 5 FIG. 6

Case 1:18-cv-08023 Document 1-2 Filed 09/04/18 Page 1 of 1
Open Toe Open Top Yoga Socks - Fitness Gear - T.J.Maxx Page 1 of 2
Case 1:18-cv-08023 Document 1-3 Filed 09/04/18 Page 1 of 4

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SELF
Open Toe Open Top Yoga Socks
$4.99
compare at $8

color: grey

size: os
OS

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Open Toe Open Top Yoga Socks - Fitness Gear - T.J.Maxx Page 2 of 2
Case 1:18-cv-08023 Document 1-3 Filed 09/04/18 Page 2 of 4

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 Case 1:18-cv-08023 Document 1-3 Filed 09/04/18 Page 3 of 4

From: T.J.Maxx <info@tjx.com>

Sent: Friday, June 01, 2018 9:41 PM
To:
Subject: Thanks Barry

Your tjmaxx.com order confirmation

shop online find a store my account

order confirmation

Hi Barry,

Thanks for shopping at tjmaxx.com. Your order details are provided below. Once your
order has shipped, you’ll receive another email with tracking and shipping information.

Visit tjmaxx.com often to save big on our newest arrivals.

order detail
order number: 2519000774 order date: Jun 1, 2018 status: order placed

Items in your order

SELF $4.99
Yoga Socks compare at $8
Style#: 1000365537

Color: Pink
Size: OS
Qty: 1

1
 Case 1:18-cv-08023 Document 1-3 Filed 09/04/18 Page 4 of 4

item total $4.99

shipping & handling $8.99
subtotal $13.98
estimated tax $1.08

total $15.06

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ship to bill to
Barry Buchholtz Barry Buchholtz

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Standard MasterCard
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 Case 1:18-cv-08023 Document 1-4 Filed 09/04/18 Page 1 of 3

THIS MATTER REQUIRES YOUR PROMPT REPLY

June 7th, 2018

Via Federal Express and email Jack@ArgentoSC.com

Argento SC
Jack Scaba
1407 Broadway, Suite 2201
New York, NY 10018

RE: Thirty Three Threads, Inc. v. Argento SC

U.S.D.C. Case No.: ***
Our Ref.: TOESX-094L

Dear Sir/Madam:

As you are aware, Thirty Three Threads, Inc., formerly known as Toesox, Inc., of Vista,
California manufactures and markets its diverse line of unique sock and apparel products
particularly suited for Pilates and yoga exercises.

Thirty Three Threads, Inc. objects to Agrento’s manufacture, sale, importation and/or offer for
sale of its yoga sock product shown in Exhibit B attached. The sock product on Exhibit B
infringes Thirty Three Threads’ U.S. Patent No. D707,036 (Exhibit A).

Accordingly, we demand that Argento immediately cease and desist from all further
manufacture, sale, importation and/or offer for sale of infringing product. Further, to the extent
that Argento has the infringing product manufactured by a third party, Thirty Three Threads
demands identification of that third party or supplier. Also, Thirty Three Threads demands an
accounting of all such infringing products sold to date, along with the indication of the amount
remaining in inventory. Based upon Argento’s immediate commitment to the above terms,
Thirty Three Threads will then determine how to fully resolve this matter.

1330 Park Center Drive · Vista, CA 92081

telephone 877.486.3769 · fax 760.683.6400 · www.thirtythreethreads.com
 Case 1:18-cv-08023 Document 1-4 Filed 09/04/18 Page 2 of 3

Due to the importance of this matter, Thirty Three Threads requests a response no later than
June 14th, 2018. Your compliance with the above-requested demands will certainly aid in a
potential resolution of this matter.

This letter is not intended to be a full statement of the facts in these matters, nor is it a waiver of
any of our rights or remedies, whether at law or equity, or those of any respective parties, all of
which are hereby expressly reserved.

We look forward to your immediate reply.

Sincerely,

Barry Buchholtz
President

1330 Park Center Drive · Vista, CA 92081

telephone 877.486.3769 · fax 760.683.6400 · www.thirtythreethreads.com
Case 1:18-cv-08023 Document 1-4 Filed 09/04/18 Page 3 of 3

Exhibit B

1330 Park Center Drive · Vista, CA 92081

telephone 877.486.3769 · fax 760.683.6400 · www.thirtythreethreads.com