Buyer S Direct Inc. v. Dick's Sporting Goods - Complaint

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION
BUYER’S DIRECT INC., )

)
Plaintiff, )
)
v. ) Case No. 5:18-cv-597
)
DICK’S SPORTING GOODS, INC., ) Plaintiff Demands Trial by Jury
HIBBETT SPORTING GOODS, INC., )
IMPLUS FOOTCARE, LLC, and )
Unknown retailers who purchase )
infringing products from )
IMPLUS FOOTCARE LLC )
)
Defendants. )
)
COMPLAINT
Plaintiff Buyer’s Direct Inc. (“BDI”) brings this action against Dick’s Sporting Goods,
Inc. (“DSG”), Hibbett Sporting Goods, Inc. (“Hibbett”), their footwear supplier, Implus
Footcare, LLC (“Implus”), and other unknown Defendant retailers supplied by Implus
(collectively “Defendants”) for infringing BDI’s design patent, infringing snoozies!® trade dress,
causing consumer confusion, and engaging in unfair competition. BDI seeks damages, an
accounting, the imposition of a constructive trust upon Defendants’ illegal profits, and injunctive
relief.
THE PARTIES
1. BDI is a North Carolina corporation with its principal place of business in Wilson,
North Carolina.
Case 5:18-cv-00597-D Document 1 Filed 12/19/18 Page 1 of 33

2. Upon information and belief, DSG is a Delaware corporation with its principal
place of business in Coraopolis, Pennsylvania and with over thirty retail locations throughout
North Carolina, including locations within this judicial district.
3. Upon information and belief, Hibbett is a Delaware corporation with its principal
place of business in Birmingham, Alabama, and with over thirty retail locations throughout
North Carolina, including locations within this judicial district.
4. Upon information and belief, Implus is a Delaware limited liability company with
a principal place of business in Durham, North Carolina.
5. Upon information and belief, Implus manufactures and sells its infringing foot
coverings to other unknown Defendant retailers who resell the product in the United States to
end users.
6. Upon information and belief, Berkshire Partners LLC purchased majority
ownership of Implus in 2015. Upon information and belief, Berkshire Partners LLC selected the
board of directors of Implus and controls strategic managerial and business decisions of Implus.
BDI will determine in discovery whether Berkshire Partners LLC is properly named as a
defendant in this case.
7. Upon information and belief, DSG has a registered agent in North Carolina,
Corporation Service Company, whose registered office is located at 2626 Glenwood Avenue,
Suite 550, Raleigh, NC 27608.
8. Upon information and belief, Implus has a registered agent in North Carolina,
Corporation Service Company, whose registered office is located at 327 Hillsborough Street,
Raleigh, NC 27603.

9. Upon information and belief, Hibbett has a registered agent in North Carolina,
Corporation Service Company, whose registered office is located at 2626 Glenwood Avenue,
Suite 550, Raleigh, NC 27608.
10. Pursuant to N.C. Gen. Stat. § 55D-30 and § 55D-33, DSG, Hibbett, and Implus
may be served legal process through their registered agent Corporation Service Company.
JURISDICTION AND VENUE
11. This is an action for design patent infringement under 35 U.S.C. § 271, trade dress
infringement and unfair competition under § 43(a) of the Trademark Act of 1946, as amended
(the “Lanham Act”), and unfair competition under North Carolina statutory and common law.
12. This Court has jurisdiction over the subject matter of this action pursuant to 28
U.S.C. §§ 1331 and 1338, and 15 U.S.C. § 1121. Because the state law claims are so related to
BDI’s claims under federal law that they form part of the same case or controversy and derive
from a common nucleus of operational facts, this Court has supplemental jurisdiction over BDI’s
claims based on state law pursuant to 28 U.S.C. § 1367(a).
13. This Court has personal jurisdiction over Defendants, including the unknown
Defendant retailers, because they (a) have contracted for sale, used, offered for sale and/or sold
infringing products and committed unfair competition in the state of North Carolina, within the
Eastern District of North Carolina; (b) have purposefully directed their activities toward the state
of North Carolina; and/or (c) have established systematic and continuous contacts with the state
of North Carolina, including maintaining retail locations, corporate offices, and distribution
facilities in the Eastern District of North Carolina.
14. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391 and 1400 with
respect to Defendants because they have committed acts of patent infringement in this district,

have regular and established places of business in this district, and this Court has personal
jurisdiction over the Defendants in this district.
BACKGROUND
A. U.S. Design Patent No. D598,183
15. On August 18, 2009, U.S. Design Patent No. D598,183 (“the ’183 Patent”) was
duly and legally issued by the United States Patent and Trademark Office. A true and correct
copy of the ’183 Patent is attached hereto as Exhibit 1 and is incorporated by reference.
16. On December 22, 2009, Marshall P. Bank, the sole inventor of the ’183 Patent,
assigned all rights in the ’183 Patent to BDI. Since that date, BDI has been and still is the owner
of the ’183 Patent. Representative Figures 1 and 3 from the ’183 patent are shown below.
17. On September 24, 2014, the U.S. Patent & Trademark Office issued an ex parte
Reexamination Certificate confirming the patentability of the ’183 design after reviewing prior
art raised in co-pending litigations. A true and correct copy of the ex parte Reexamination
Certificate is included in Exhibit 2 attached hereto and is incorporated by reference.
18. BDI has retained the exclusive right to manufacture all commercial embodiments
of the ’183 patent in the United States retail market.

B. The Trade-Dress-in-Suit
19. BDI is a supplier of retail products that has designed, marketed, and sold its
unique snoozies!® foot coverings since 2008. BDI has achieved market success for snoozies!®
because of the distinctive and unique design of the snoozies!® product. Exemplary snoozies!®
foot coverings are shown below.
20. Since the fall of 2008, snoozies!® have been offered for sale in many retail
locations throughout North Carolina and other states and may be found in thousands of retail
outlets and specialty retailers throughout the United States and the world.
21. BDI’s snoozies!® foot coverings have a distinctive, immediately recognizable and
non-functional overall look and feel that constitutes protectable trade dress that distinguishes
BDI’s foot coverings from those of competitors. The foot coverings, which are presented outside
of packaging, are made of a soft, malleable material on both the top and bottom portions of the
foot covering, the soft, malleable top portion is formed into a wide, rounded covering over the
top of the foot that extends over the toes, and a protrusion of fleece material extends out from
and floats above the foot entry of the foot covering. An annotated image of BDI’s snoozies!®
foot coverings highlighting the above-described features is shown below:

22. BDI has invested significant time, money and effort in developing snoozies!® foot
coverings, which has resulted in significant commercial success and public recognition of its
distinctive design, appearance, and trade dress. For example, snoozies!® foot coverings have
been featured on NBC’s Today Show. For nearly a decade, snoozies!® foot coverings have been
sold in Hallmark stores throughout the United States. Over the past few years, snoozies!® foot
coverings have been featured in the prestigious Smithsonian magazine gift catalog. The
extraordinary success is reflected in the fact that BDI sold approximately twenty million pairs of
snoozies!® foot coverings over the past ten years in the United States.
23. BDI has promoted and advertised snoozies!® products in various trade
publications and trade shows that publicize and promote the sale of such retail products. BDI
has also has created hundreds of different advertisements and promotional materials prominently

featuring snoozies!® foot coverings and various aspects of the trade dress since the foot
coverings were introduced ten years ago. A few examples of such advertising images from
BDI’s website are shown below:

24. As a result of BDI’s advertising and promotion of snoozies!® foot coverings, the
trade and consuming public have come to associate the distinctive trade dress of snoozies!® foot
coverings with a single producer or source—BDI. The snoozies!® foot coverings product and
associated distinctive trade dress have been so successful that the product has been copied by
several competitors (whom BDI has sued for infringement). The advertising and promotion of
genuine snoozies!® foot coverings products, and the copying of its trade dress by others, is
evidence that the snoozies!® foot coverings trade dress has acquired secondary meaning in the
marketplace as to the origin of the product.
25. The distinctive trade dress features of snoozies!® foot coverings as described
above are non-functional and ornamental; are unrelated to the use, cost, or quality of the foot
coverings, and function together to comprise a design that identifies snoozies!® foot coverings as
originating from a single source—BDI. The particular design, appearance, and arrangement of
these elements as a whole are also separate from the utilitarian requirements to create a foot
covering. Alternative designs and features could have resulted in reduced cost and a simpler
manufacturing process. Differing slipper shapes could also have been used and any of myriad
alternatives similarly cover the feet and keep them warm. But BDI developed and marketed a
distinctive trade dress for which it expended significant resources to be associated directly and
solely with BDI despite the increased cost and manufacturing complexity as compared to
cheaper alternatives.
C. Defendants’ Infringement
26. BDI approached DSG prior to 2016 and offered to supply its snoozies!® foot
coverings to DSG for resale. At that time, BDI informed DSG that its foot coverings were
protected by its intellectual property rights.

27. In September 2016, Mathew Evans, a Senior Director of Business Development at
Implus studied BDI’s business and spoke to BDI’s President while considering whether Implus
would have an interest in acquiring BDI. At that time, BDI informed Implus that its valuable
line of snoozies!® foot coverings were protected by its intellectual property rights, including the
’183 patent and BDI’s trade dress. As part of the review process, Implus learned of the
profitability and great success of the snoozies!® foot coverings. Ultimately, Implus decided not
to purchase BDI in 2016.
28. In recent years, BDI has confronted a number of companies who sought to exploit
the success of snoozies!® by making and selling infringing knock-off copies of snoozies!® foot
coverings. BDI has successfully asserted its intellectual property rights against many of those
infringers. The infringers include companies, like DSG, to whom BDI had offered to supply its
snoozies!® foot coverings.
29. In order to protect its intellectual property rights, has BDI regularly monitored the
internet and multiple retail distribution channels for infringing foot coverings.
30. In May 2018, BDI purchased SOFSOLE FIRESIDE foot coverings with a striking
resemblance to its own snoozies!® foot coverings from a brick and mortar Hibbett’s store.
31. Much to BDI’s surprise, and as stated on the tag on the foot coverings below, BDI
learned that Implus supplied Hibbett with foot coverings sold under the trade name SOFSOLE
FIRESIDE:

As noted on the tag, the SOFSOLE trademark under which the Hibbett foot coverings are
marketed is owned by Implus.
32. Upon information and belief, to permit sale of the SOFSOLE FIRESIDE foot
coverings in a retail store in May 2018, production of those foot coverings must have begun in
the Fall of 2017.
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33. Upon information and belief, to permit production SOFSOLE FIRESIDE foot
coverings in the Fall of 2017, design and production discussions must have begun in late Spring
or early Summer 2017.
34. Upon information and belief, Implus started designing the SOFSOLE FIRESIDE
infringing foot coverings, and marketing and offering them for sale soon after studying BDI’s
business in the Fall of 2016 and then deciding to make its own copy-cat products rather than
acquire BDI.
35. Defendants Hibbett and Implus infringe BDI’s ’183 patent and trade dress by
making, importing, using, offering for sale and/or selling a foot covering marketed under the
SOFSOLE FIRESIDE trademarked brand and any substantially similar foot coverings. The
SOFSOLE FIRESIDE foot coverings are identical in virtually all relevant respects to snoozies!®
foot coverings and include the elements of the claimed design, as shown in the below exemplary
picture of Hibbett’s SOFSOLE FIRESIDE foot coverings:
36. In November 2018, BDI learned that DSG was offering for sale and selling
COZY CABIN foot coverings that appeared identical in virtually all relevant respects to BDI’s
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snoozies!® foot coverings. A photograph of a DSG store display of COZY CABIN foot
coverings is below:
37. On November 20, 2018, counsel for BDI wrote counsel for DSG and informed
DSG that its marketing, distribution and sale of COZY CABIN foot coverings infringed BDI’s
’183 patent and trade dress. See Exhibit 3. Despite multiple communications from DSG that it,
or its counsel, were evaluating this issue, the matter remains unresolved. DSG has not ceased
marketing, distributing, selling, and/or offering to sell the infringing COZY CABIN foot
coverings or offered BDI compensation for its infringement.
12

38. BDI is also greatly concerned about the timing of DSG’s infringement. BDI’s
patented snoozies!® foot coverings make great gifts and are especially popular during the holiday
season.
39. Upon information and belief, COZY CABIN is a registered trademark owned by
Implus, and DSG’s foot coverings are referred to as COZY CABIN slippers:
(tags attached to DSG’s Field & Stream Women’s COZY CABIN Nordic Stripe foot coverings
purchased by plaintiff in North Carolina and displayed in paragraph 42 below).
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(Implus’ trademark registration for the mark COZY CABIN).
40. Upon information and belief, Implus is a supplier of footwear and foot coverings
to DSG, including other footwear products using the trademark COZY CABIN.
41. Upon information and belief, Implus supplies DSG with the infringing COZY
CABIN foot coverings being marketed and sold by DSG.
42. Specifically, Defendants DSG and Implus infringe BDI’s ’183 patent and trade
dress by making, importing, using, offering for sale and/or selling an infringing foot covering
marketed under the COZY CABIN trademarked brand and any substantially similar foot
coverings. The COZY CABIN foot coverings are identical in virtually all relevant respects to
snoozies!® foot coverings and include the elements of the claimed design, as shown in the below
exemplary picture of DSG’s Field & Stream Women’s COZY CABIN Nordic Stripe foot
coverings:
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43. Upon information and belief, Implus supplies, offers for sale and/or sells other
unknown Defendant retailers with its infringing foot coverings for resale in the United States to
end users.
44. Upon information and belief, the unknown Defendant retailers market, offer to
sell and/or sell the infringing foot coverings supplied by Implus to end users in the United States.
COUNT I
(DEFENDANT DSG’S AND IMPLUS’ DIRECT INFRINGEMENT OF
UNITED STATES PATENT NO. D598,183)
45. Paragraphs 1 through 44 of this Complaint are incorporated as if set forth in their
entirety here.
46. Defendants DSG and Implus infringe the ’183 Patent by using, making,
importing, selling, and/or offering to sell a foot covering product under the COZY CABIN label.
47. A sample of the infringing COZY CABIN foot coverings were purchased on-line
from www.dicksportinggoods.com in November 2018, and delivered to Wilson, North Carolina
as shown below:
15

48. The COZY CABIN foot coverings can also be purchased on-line at
www.dicksportinggoods.com and retrieved from brick and mortar DSG stores in Raleigh, North
Carolina. See Exhibit 4, a printout from https://www.dickssportinggoods.com/p/field-stream-
womens-cozy-cabin-nordic-stripe-slipper-socks-18fnswfswslpprnrdapa/18fnswfswslpprnrdapa
and https://www.dickssportinggoods.com/p/field-stream-womens-cozy-cabin-cable-knit-slipper-
socks-18fnswfswslpprnbbapa/18fnswfswslpprnbbapa, indicating that the selected COZY CABIN
foot coverings could be purchased on line and retrieved from a DSG retail store in Raleigh,
North Carolina.
49. The following exemplary comparison of Defendant DSG’s and Implus’ COZY
CABIN foot coverings with figures from the ’183 patent demonstrate infringement:
16

17

50. Upon information and belief, Defendant DSG has had actual notice of the ’183
patent for multiple years based upon BDI’s contacts with DSG offering to supply snoozies!® foot
coverings for resale.
51. Defendant Implus has had actual notice of the ’183 patent since at least
September 2016 based upon BDI’s contacts with Implus regarding the possible acquisition of
BDI by Implus.
52. As a direct result of Defendant DSG’s and Implus’ infringement of the ’183
Patent, BDI has suffered irreparable injury and monetary damages. If Defendant DSG’s and
Implus’ infringement is not permanently enjoined, BDI will continue to suffer irreparable injury
and monetary damages.
53. Upon information and belief, Defendant DSG’s and Implus’ infringement of the
’183 Patent is intentional, willful, and wanton under 35 U.S.C. § 284, and makes this an
exceptional case under 35 U.S.C. § 285. Defendant DSG and Implus were aware of BDI’s
snoozies!® foot coverings, their great commercial success, and that they were covered by
intellectual property years prior to importing into the United States, making, using, offering for
sale and/or selling its infringing foot coverings in the United States. Specifically, soon after it
engaged in discussions with BDI regarding the purchase of BDI’s business, Implus began
copying BDI’s patented foot coverings, and marketing, offering to sell and/or selling its
infringing foot coverings to retailers. This knowledge and Defendant DSG’s and Implus’ failure
to seek a license or supply contract prior to engaging in its infringing behavior indicate that
Defendant DSG and Implus clearly and wantonly copied BDI’s snoozies!® foot coverings to
benefit from its established trade dress and commercial success.
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COUNT II
(DEFENDANT HIBBETT’S AND IMPLUS’ DIRECT INFRINGEMENT OF
UNITED STATES PATENT NO. D598,183)
entirety here.
55. Defendants Hibbett and Implus infringe the ’183 Patent by using, making,
importing, selling, and/or offering to sell a foot covering product under the SOFSOLE
FIRESIDE label.
56. As illustrated below a sample of the infringing SOFSOLE FIRESIDE foot
coverings were purchased on-line from a brick and mortar Hibbett’s retail store:
57. The following exemplary comparison of Defendant Hibbett’s and Implus’
SOFSOLE FIRESIDE foot coverings with figures from the ’183 patent demonstrate
infringement:
19

20

September 2016 based upon BDI’s contacts with Implus regarding the possible acquisition of
BDI by Implus.
59. As a direct result of Defendant Hibbett’s and Implus’ infringement of the ’183
Patent, BDI has suffered irreparable injury and monetary damages. If Defendant Hibbett’s and
Implus’ infringement is not permanently enjoined, BDI will continue to suffer irreparable injury
and monetary damages.
60. Upon information and belief, Defendant Implus’ infringement of the ’183 Patent
is intentional, willful, and wanton under 35 U.S.C. § 284, and makes this an exceptional case
under 35 U.S.C. § 285. Defendant Implus was aware of BDI’s snoozies!® foot coverings, their
great commercial success, and that they were covered by intellectual property years prior to
importing into the United States, making, using, offering for sale and/or selling its infringing foot
coverings in the United States. Specifically, soon after it engaged in discussions with BDI
regarding the purchase of BDI’s business, Implus began copying BDI’s patented foot coverings,
and marketing, offering to sell and/or selling its infringing foot coverings to retailers, including
Hibbett. This knowledge and Defendant Implus’ failure to obtain a license or supply contract
prior to engaging in its infringing behavior indicate that Defendant Implus clearly and wantonly
copied BDI’s patented snoozies!® foot coverings to benefit from its established trade dress and
commercial success.
COUNT III
(DEFENDANT IMPLUS’ AND UNKNOWN RETAIL DEFENDANTS’ DIRECT OF
INFRINGEMENT OF U.S. PATENT NO. D598,183)
entirety here.
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62. Upon information and belief, Defendant Implus also supplies, offers to sell and/or
sells its infringing foot coverings to other unknown Defendant retailers in the United States.
63. Upon information and belief, the unknown Defendant retailers market, offer to
sell and/or sell the infringing foot covering obtained from Defendant Implus to end users in
violation of BDI’s patent rights.
September 2016 based upon BDI’s contacts with Implus offering to supply snoozies!® foot
coverings for resale.
65. As a direct result of Defendant Implus’ and the unknown Defendant retailers’
infringement of the ’183 Patent, BDI has suffered irreparable injury and monetary damages. If
Defendant Implus’ and the unknown Defendant retailers’ infringement is not permanently
enjoined, BDI will continue to suffer irreparable injury and monetary damages.
66. Upon information and belief, Defendant Implus’ infringement of the ’183 Patent
is intentional, willful, and wanton under 35 U.S.C. § 284, and makes this an exceptional case
under 35 U.S.C. § 285. Defendant Implus was aware of BDI’s snoozies!® foot coverings, their
great commercial success, and that they were covered by intellectual property years prior to
importing into the United States, making, using, offering for sale and/or selling its infringing foot
coverings in the United States. Specifically, soon after it engaged in discussions with BDI
regarding the purchase of BDI’s business, Implus began copying BDI’s patented foot coverings,
and marketing, offering to sell and/or selling its infringing foot coverings to retailers. This
knowledge and Defendant Implus’ failure to obtain a license or supply contract prior to engaging
in its infringing behavior indicate that Defendant Implus clearly and wantonly copied BDI’s
22

patented snoozies!® foot coverings to benefit from its patent, established trade dress and
commercial success.
COUNT IV
(DSG’S INDUCEMENT OF INFRINGEMENT OF U.S. PATENT NO. D598,183)
entirety here.
68. Upon information and belief, DSG has had actual notice of the ’183 patent since
for prior to 2016 based upon BDI’s discussions with DSG to supply DSG with a supply of its
patented foot coverings for resale.
69. On information and belief, despite knowledge of the ’183 patent and its
infringement, DSG continues to advertise infringing COZY CABIN foot coverings with
depictions of people wearing them as they are designed to be worn, with the knowledge that such
use would constitute direct infringement of the ’183 Patent, thus directly or indirectly inducing
consumers to directly infringe the ’183 Patent. See Picture 5 from
www.dickssportinggoods.com/p/field-stream-womens-cozy-cabin-nordic-stripe-slipper-socks-
18fnswfswslpprnrdapa/18fnswfswslpprnrdapa?camp=CSE:DSG_pg1052459246_ecom_%20PL
A_452&gclid=EAIaIQobChMI8N3Rpc2L3wIVhlYNCh0aDw9sEAkYASABEgIw3vD_BwE:
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70. As a direct result of DSG’s indirect infringement of the ’183 Patent, BDI has
suffered irreparable injury and monetary damages. If DSG’s infringement is not permanently
enjoined, BDI will continue to suffer irreparable injury and monetary damages.
71. Upon information and belief, DSG’s indirect infringement of the ’183 Patent is
intentional, willful, and wanton under 35 U.S.C. § 284, and makes this an exceptional case under
35 U.S.C. § 285.
COUNT V
(DEFENDANTS’ TRADE DRESS INFRINGEMENT)
entirety here.
73. BDI invested significant time, money and effort in developing snoozies!® foot
coverings, resulting in significant commercial success and public recognition of its distinctive
design, appearance and trade dress.
74. As a result of BDI’s advertising and promotion of snoozies!® foot coverings by
itself and others, the trade and consuming public have come to associate the distinctive trade
dress of snoozies!® with a single producer or source. Accordingly, the snoozies!® trade dress has
acquired secondary meaning in the marketplace as to the origin of the product.
75. The distinctive trade dress of snoozies!® is non-functional and ornamental.
76. Defendants have used, made, imported, sold and/or offered for sale in stores, in
person, and on their website, and continue to sell or offer for sale infringing foot coverings which
copy and are confusingly similar in appearance to the trade dress of snoozies!® foot coverings,
and therefore are likely to deceive and confuse the consuming public as to the source or origin of
the infringing foot coverings in violation of 15 U.S.C. § 1125(a).
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77. The following exemplary comparison of snoozies!® foot coverings with
Defendants’ foot coverings demonstrates infringement:
DSG/IMPLUS Nordic Stripe HIBBETT/IMPLUS SOFSOLE

COZY CABIN foot coverings FIRESIDE foot coverings
snoozies! Nordic Knit foot coverings snoozies! Jacquard Hearts foot coverings
78. Upon information and belief, Implus also supplies foot coverings that infringe
BDI’s trade dress to the unknown Defendant retailers who then capitalize on BDI’s well-known
25

and valuable trade dress to market, offer to sell, and sell the infringing foot coverings to end
users.
79. Both BDI’s snoozies!® foot coverings and Defendants’ foot coverings are sold in
overlapping and directly competing trade channels, further exacerbating the likelihood of
confusion between BDI’s foot coverings and Defendants’ foot coverings.
80. Defendants have engaged in such wrongful conduct with the willful purpose of
misleading, deceiving or confusing customers and the public as to the origin and authority of
their infringing foot coverings, thereby trading on BDI’s goodwill, reputation and creative
designs.
81. Defendants’ conduct constitutes willful infringement of BDI’s protectable trade
dress, making this an exceptional case within the meaning of 15 U.S.C. § 1117.
82. Defendants’ infringing activities have caused BDI irreparable injury and
monetary damages.
83. If Defendants’ infringements are not permanently enjoined, BDI will continue to
suffer irreparable injury and monetary damages.
84. BDI has no adequate remedy at law for Defendants’ wrongful conduct because (a)
BDI’s unique snoozies!® design patent and trade dress have no readily determined market value;
(b) Defendants’ making, use, importation, sale and/or offers for sale of the imitation slipper
design constitute such harm that BDI cannot be made whole by any monetary award alone; and
(c) Defendants’ wrongful conduct is continuing, notwithstanding their knowledge of the
established trade dress.
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COUNT VI
(UNFAIR AND DECEPTIVE TRADE PRACTICES UNDER NORTH CAROLINA
LAW – N.C. GEN STAT 75-1.1)
entirety here.
86. BDI is based in North Carolina and is therefore entitled to the protections
afforded under the laws of the State of North Carolina.
87. BDI invested significant money and effort in advertising and promoting
snoozies!® foot coverings and as a result, snoozies!® are associated with BDI by the trade and
consuming public.
88. Defendants’ acts and conduct as alleged above constitute unfair methods of
competition and unfair or deceptive acts or practices in or affecting North Carolina commerce, as
defined by N.C. Gen. Stat. § 75-1.1.
89. As a direct and proximate result of Defendants’ conduct, BDI has suffered and
will continue to suffer substantial pecuniary damages, including but not limited to losses and
damages in an amount to be determined at trial. Defendants’ conduct justifies an award of treble
damages pursuant to N.C. Gen. Stat. § 75-16.
90. Because much of the damage suffered by BDI as a result of Defendants’ conduct
is and will be irreparable, for which BDI has no adequate remedy at law, BDI is further entitled
to preliminary and permanent injunctive relief.
91. Defendants have willfully engaged in the acts and practices alleged in this
Complaint. For these reasons, BDI is further entitled to recover attorneys’ fees from Defendants
under N.C. Gen. Stat. § 75-16.1(1).
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COUNT VII
(NORTH CAROLINA COMMON LAW
UNFAIR COMPETITION)
entirety here.
93. Defendants’ acts and conduct set forth above constitute unfair competition in
North Carolina at common law.
94. BDI, as a result of such conduct, has suffered and will continue to suffer losses
and damages in an amount to be determined at trial.
95. As much of the damage covered by Defendants’ conduct is and will be
irreparable, for which BDI has no adequate remedy at law, BDI is further entitled to preliminary
and permanent injunctive relief.
COUNT VIII
(FOR IMPOSITION OF A CONSTRUCTIVE TRUST UPON THE ILLEGAL
PROFITS OF DEFENDANTS)
entirety here.
97. Defendants’ conduct constitute deceptive and wrongful conduct in the nature of
passing off the infringing materials as genuine BDI snoozies!® foot coverings.
98. By virtue of its wrongful conduct, Defendants have illegally received money and
profits that rightfully belong to BDI.
99. Upon information and belief, Defendants hold the illegally-received money and
profits in the form of bank accounts, real property, or personal property that can be located and
traced.
100. Defendants hold the money and profits they have illegally received as
constructive trustee for the benefit of BDI.
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COUNT IX
(ACCOUNTING AGAINST DEFENDANTS)
entirety here.
102. BDI is entitled, pursuant to 35 U.S.C. § 284, to recover any and all profits of
Defendants that are attributable to their acts of infringement.
103. BDI is entitled, pursuant to 35 U.S.C. § 284, to actual damages sustained by
virtue of Defendants’ acts of infringement.
104. The specific amount of money due from Defendants to BDI is unknown to BDI
and cannot be ascertained without a detailed accounting by Defendants of the precise number of
units of infringing material offered for distribution and distributed by Defendants.
PRAYER FOR RELIEF
WHEREFORE, BDI prays that this Court enter a judgment that:
A. For a judgment that, by the acts complained of above, Defendants
have directly infringed the ’183 Patent in violation of 35 U.S.C. §271(a).
B. For a judgment that, by the acts complained of above, Defendant
DSG has indirectly infringed the ’183 Patent in violation of 35 U.S.C.
§271(a).
C. For a judgment that, by the acts complained of above, Defendants
have committed trade dress infringement in violation of 15 U.S.C. § 1125(a).
D. For a judgment that, by the acts complained of above, Defendants
have engaged in acts of unfair and deceptive business practices in violation of
N.C. GEN STAT 75-1.1 and North Carolina common law.
29

E. For a preliminary and permanent injunction enjoining Defendants
and their officers, agents, servants, employees, successors, assigns,
subsidiaries, parents, related entities, and attorneys, and all other persons,
firms, associations, and entities who are in active concert or participation with
them, from:
(i) reproducing, using, distributing, importing, selling,
and/or offering for sale in the United States any foot-covering
products that are copies of, or are substantially similar to, BDI’s
snoozies!® foot coverings, in whole or in part, including but not
limited to Defendants’ foot coverings;
(ii) using in the United States any designs which are
similar, in whole or in part, to any trade dress of BDI’s snoozies!®
foot coverings;
(iii) committing any acts causing, or calculated to cause,
purchasers or the trade to mistakenly believe that Defendants’ foot
coverings are BDI’s snoozies!® foot coverings, or vice versa, in
whole or in part;
(iv) infringing any patent of BDI, including but not
limited to the ’183 Patent; and
(v) otherwise competing unfairly with BDI.
F. For an order pursuant to 15 U.S.C. § 1116(a) directing Defendants
to file with this Court and to serve upon BDI’s counsel, within thirty (30) days
after the entry and service on Defendants of an injunction, a report in writing
30

and under oath setting forth in detail the manner and form in which
Defendants have complied with the injunction.
G. For an order declaring that Defendants hold in trust, as
constructive trustee for the benefit of BDI, their illegal profits obtained from
their manufacture, use, importation, sale, offer to sell, and/or distribution of
infringing copies of BDI’s snoozies!® foot coverings, and pursuant to 15
U.S.C. § 1117(a), and order compelling Defendants to account to BDI for any
and all profits (trebled) derived from their unlawful and infringing conduct.
H. For an order awarding BDI damages as follows:
(i) all damages adequate to compensate BDI for
Defendants’ infringement of the ’183 Patent, and in no event less
than a reasonable royalty for Defendants’ acts of infringement;
(ii) pursuant to 35 U.S.C. §§ 284 and 289, all damages,
including treble damages, based on any infringement of the ’183
Patent found to be willful;
(iii) pursuant to 15 U.S.C. § 1117(a) BDI’s actual
damages, as well as all of Defendants’ profits or gains of any kind
from their acts of trade dress infringement, including a trebling of
those damages; and
(iv) BDI’s damages and Defendants’ profits pursuant to
North Carolina common law.
I. For an order that Defendants shall destroy any inventory of
infringing foot coverings in their physical possession or over which they have
31

title or other ownership interest, even though not in their physical possession,
and that Defendants shall provide BDI a certification identifying the number
of units and location(s) of inventories of infringing foot coverings and the
certified date of their destruction.
J. For an order pursuant to 15 U.S.C. § 1117(a) and 35 U.S.C. § 285,
finding that this is an exceptional case and awarding BDI its reasonable
attorneys’ fees.
K. For an order awarding exemplary damages as authorized by law.
L. For an order awarding BDI all of its costs, disbursements and other
expenses, pursuant to 15 U.S.C. § 1117(a), 28 U.S.C. § 1920 and other
applicable law.
M. For interest.
N. For such other relief as the circumstances may require and that the
Court may deem just and appropriate.
JURY DEMAND
BDI demands a trial by jury on all issues.
This the 19th day of December, 2018.
/s/ Alex J. Hagan

Alex J. Hagan, Esq. (NC State Bar No. 19037)
Jeremy M. Falcone, Esq. (N.C. State Bar No. 36182)
Ellis & Winters LLP
Post Office Box 33550
Raleigh, NC 27636
Telephone: (919) 865-7000
Facsimile: (919) 865-7010
Email: alex.hagan@elliswinters.com
Email: Jeremy.falcone@elliswinters.com
Local Civil Rule 83.1(d) Counsel
32

Andrew M. Ollis (pro hac pending)
Frank J. West (pro hac pending)
Lisa M. Mandrusiak (pro hac pending)
OBLON, McCLELLAND,
MAIER & NEUSTADT, L.L.P.
1940 Duke Street
Alexandria, Virginia 22314
Telephone: (703) 413-3000
Facsimile: (703) 413-2220
Email: aollis@oblon.com
Email: fwest@oblon.com
Email: lmandrusiak@oblon.com
Counsel for Buyer’s Direct Inc.
33

EXHIBIT 1
Case 5:18-cv-00597-D Document 1-1 Filed 12/19/18 Page 1 of 6

EXHIBIT 2

EXHIBIT 3

Novembeer 20, 2018
(Via email withh

confiirmation cop
py via UPS aand airmail) ANDREW M. OLLIS
(cindy.caampbell@dccsg.com) (7
703) 412-7023
AOLLLIS@OBLON.COM
(john.h
hayes@dcsgg.com)
John Hayyes
Senior Vice
V Presiden nt, General Counsel
C
Dick’s Sp
porting Goods, Inc.
345 Courrt Street
Coraopollis, PA 1510
08
ASL, LL
LC
345Courtt Street
Coraopollis, PA 1510
08
Re: Cozzy Cabin Sliippers

Our Reef.: 900075U
US
Dear Mr.. Hays:
We
W are writin ng on behalff of Buyer’s Direct,
D Inc., owners of thhe snoozies!!® trademarkk,
trade dress and U.S. patent
p D5988,183 (“Intelllectual Prop erty”) for itss extremely successful aand
widely reecognized fleeece slipperss. Buyer’s Direct
D recenttly learned thhat Dick’s S
Sporting Gooods,
Inc. (“Diick’s”) has been offering
g for sale and
d selling Cozzy Cabin slipppers distribbuted by its
subsidiarry ASL, LLC C (“ASL”).
A photo of th
he store displlay and an im
mage of a Coozy Cabin sllipper from D
Dick’s webssite
are show
wn below.
OBLON, MCCLELLA AND, MAIER & NE EUSTADT, L.L.P.

1940 DUKE
U STREET  ALEXANDRIA
L , VIRGI NIA 22314  U.S
S.A.
TELEPHONE: 703
3-413-3000  FACSIMILE
A : 703-41 3-2220  WWW.O OBLON.COM
CONFIDENTIA
AL
Novembeer 20, 2018
Page 2
You
Y should be b aware thatt Buyer’s Diirect offered its patentedd fleece slipppers to Dick’s
several years
y ago and
d that Dick’ss refused to buy
b from Buuyer’s Directt. At the tim me, Dick’s wwas
made awware of Buyerr’s Direct intellectual property.
Buyer’s
B Direcct has activeely enforced its Intellectuual Property rights relateed to its slippper
products over the passt seven yearrs in Federall Court, settlling its longeest running llitigation this
year. Thhe litigation included
i claims for infriingement of the ‘183 pattent, trade drress infringeement,
and unfaiir competitioon--and resuulted in a sev
ven-figure seettlement witth a U.S. retaailer. Buyerr’s
Direct also successfuully defeatedd numerous challenges
c too the validityy of the ‘1833 patent in U
U.S.
District Court
C and in the U.S. Coourt of Appeaals for the Federal Circuuit after the U U.S. Patent
Office suuccessfully re-examined the ‘183 pattent.
Direct
D Inc. takkes its Intelllectual Propeerty rights veery seriouslyy—as we believe Dick’ss and
ASL do. Now that you y are again n on notice of
o Buyer’s D Direct’s rightss, we trust thhat Dick’s, AASL,
and any related
r comp panies, will immediately
i y cease and ddesist marketting, distribuuting, sellingg,
and offerring for sale all infringin
ng products in stores, tradde shows, caatalogs, webbsites, and anny
other ven
nue. In partiicular, Buyerr’s Direct deemands that D Dick’s immediately rem move all of itts
infringing products from
fr the retaailing selling floors in itss stores.
Further, Buyeer’s Direct demands

d an immediate
i acccounting foor all past sales of the
infringing products, a royalty forr such sales, and verificaation of the ddestruction oof any remainning
products and cancellaation of any such orders you may haave placed off such itemss. If Dick’s aand
ASL fail to take these steps, Buyyer’s Direct will
w take legal action.
We
W look forw ponse no lateer than closee of business November 21,
ward to your prompt resp
2018.
Very Truly Yours,
OBLON, M
McCLELLAN
ND,
MAIER & N
NEUSTADT
T, L.L.P.
Andrew M. Ollis
AMO/aw
w

EXHIBIT 4

Field & Stream Women's Cozy Cabin Nordic Stripe Slipper Socks | DICK'... Page 1 of 3
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Lock out winter chill when you step into the Field and Stream® Women’s Cozy Cabin Nordic Stripe Slipper
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https://www.dickssportinggoods.com/p/field-stream-womens-cozy-cabin-n... 12/19/2018
• Brand: Field & Stream

• Country of Origin: Imported
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• Fabric Content: 51% Nylon, 36% Acrylic, 12% Polyester, 1% Spandex
Web ID: 18FNSWFSWSLPPRNRDAPA

SKU: 19037918 Field and Stream
Women's Snowflake
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(3)
★★★★★ 5.0 1 Review
$12.99
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Overall ★★★★★ 5.0
5★ 1
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♀
Due Thursday 77 ★★★★★ · 2 months ago
these are the most comfortable ever.
Review 1 Be careful when throwing these in the washing machine because they tend to lose
Votes 4 their softness. it might be better to hand wash and air dry.
Your Age 24 - 30
✔ Yes, I recommend this product.
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★★★★★
 Limited-Time Sale: Buy One Get One Free Cabin Socks, Blankets & Cold
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$14.99
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Color: Blue/Pink Socks
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JS 44 (Rev. 06/17) CIVIL COVER SHEET
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 NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS

Dick's Sporting Goods, Inc., Hibbett Sporting Goods, Inc.,
Buyer's Direct Inc.
Implus Footcare, LLC, and Unknown retailers who purchase
infringing products from Implus Footcare, LLC
(b) County of Residence of First Listed Plaintiff Wilson, North Carolina County of Residence of
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Alex J. Hagan, Jeremy M. Falcone

Ellis & Winters LLP, PO Box 33550, Raleigh, NC 27636
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4
of Business In This State
’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6

Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
’ 110 Insurance PERSONAL INJURY PERSONAL INJURY ’ 625 Drug Related Seizure ’ 422 Appeal 28 USC 158 ’ 375 False Claims Act
’ 120 Marine ’ 310 Airplane ’ 365 Personal Injury - of Property 21 USC 881 ’ 423 Withdrawal ’ 376 Qui Tam (31 USC
’ 130 Miller Act ’ 315 Airplane Product Product Liability ’ 690 Other 28 USC 157 3729(a))
’ 140 Negotiable Instrument Liability ’ 367 Health Care/ ’ 400 State Reapportionment
’ 150 Recovery of Overpayment ’ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS ’ 410 Antitrust
& Enforcement of Judgment Slander Personal Injury ’ 820 Copyrights ’ 430 Banks and Banking
’ 151 Medicare Act ’ 330 Federal Employers’ Product Liability ’ 830 Patent ’ 450 Commerce
’ 152 Recovery of Defaulted Liability ’ 368 Asbestos Personal ’ 835 Patent - Abbreviated ’ 460 Deportation
Student Loans ’ 340 Marine Injury Product New Drug Application ’ 470 Racketeer Influenced and
(Excludes Veterans) ’ 345 Marine Product Liability ’ 840 Trademark Corrupt Organizations
’ 153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY ’ 480 Consumer Credit
of Veteran’s Benefits ’ 350 Motor Vehicle ’ 370 Other Fraud ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) ’ 490 Cable/Sat TV
’ 160 Stockholders’ Suits ’ 355 Motor Vehicle ’ 371 Truth in Lending Act ’ 862 Black Lung (923) ’ 850 Securities/Commodities/
’ 190 Other Contract Product Liability ’ 380 Other Personal ’ 720 Labor/Management ’ 863 DIWC/DIWW (405(g)) Exchange
’ 195 Contract Product Liability ’ 360 Other Personal Property Damage Relations ’ 864 SSID Title XVI ’ 890 Other Statutory Actions
’ 196 Franchise Injury ’ 385 Property Damage ’ 740 Railway Labor Act ’ 865 RSI (405(g)) ’ 891 Agricultural Acts
’ 362 Personal Injury - Product Liability ’ 751 Family and Medical ’ 893 Environmental Matters
Medical Malpractice Leave Act ’ 895 Freedom of Information
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ’ 790 Other Labor Litigation FEDERAL TAX SUITS Act
’ 210 Land Condemnation ’ 440 Other Civil Rights Habeas Corpus: ’ 791 Employee Retirement ’ 870 Taxes (U.S. Plaintiff ’ 896 Arbitration
’ 220 Foreclosure ’ 441 Voting ’ 463 Alien Detainee Income Security Act or Defendant) ’ 899 Administrative Procedure
’ 230 Rent Lease & Ejectment ’ 442 Employment ’ 510 Motions to Vacate ’ 871 IRS—Third Party Act/Review or Appeal of
’ 240 Torts to Land ’ 443 Housing/ Sentence 26 USC 7609 Agency Decision
’ 245 Tort Product Liability Accommodations ’ 530 General ’ 950 Constitutionality of
’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 535 Death Penalty IMMIGRATION State Statutes
Employment Other: ’ 462 Naturalization Application
’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 465 Other Immigration
Other ’ 550 Civil Rights Actions
’ 448 Education ’ 555 Prison Condition
’ 560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
’ 1 Original ’ 2 Removed from ’ 3 Remanded from ’ 4 Reinstated or ’ 5 Transferred from ’ 6 Multidistrict ’ 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
35 U.S.C. § 271
VI. CAUSE OF ACTION Brief description of cause:
Design patent infringement, trade dress infringement, and unfair competition
VII. REQUESTED IN ’ CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: ’ Yes ’ No
VIII. RELATED CASE(S) Terrence W. Boyle 5:18-cv-00582-BO (EDNC)
(See instructions):
IF ANY JUDGE Malcolm J. Howard DOCKET NUMBER 5:10-cv-00065-JG (EDNC)
DATE SIGNATURE OF ATTORNEY OF RECORD
12/19/2018 /s/ Alex J. Hagan
FOR OFFICE USE ONLY
RECEIPT # Case 5:18-cv-00597-D

AMOUNT Document
APPLYING IFP 1-5 FiledJUDGE
12/19/18 Page 1MAG.
of JUDGE
2
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JS 44 Reverse (Rev. 06/17)
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading 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. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".
II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.
V. Origin. Place an "X" in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to
changes in statue.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.

AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT

for the
Eastern District
__________ of North
District Carolina
of __________
BUYER'S DIRECT INC. )

)
)
)
Plaintiff(s) )
)
v. Civil Action No. 5:18-cv-597
)
DICK'S SPORTING GOODS, INC., HIBBETT
SPORTING GOODS, INC., IMPLUS FOOTCARE, )
LLC, and Unknown retailers who purchase infringing )
products from IMPLUS FOOTCARE LLC )
)
Defendant(s) )
SUMMONS IN A CIVIL ACTION

Dick's Sporting Goods, Inc.
To: (Defendant’s name and address) c/o Registered Agent
2626 Glenwood Avenue, Suite 550
Raleigh, NC 27608
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are:
Alex J. Hagan
Jeremy M. Falcone
Ellis & Winters LLP
PO Box 33550
Raleigh, NC 27636
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 5:18-cv-597
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)

was received by me on (date) .
’ I personally served the summons on the individual at (place)

on (date) ; or
’ I left the summons at the individual’s residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date) , and mailed a copy to the individual’s last known address; or
’ I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)
on (date) ; or
’ I returned the summons unexecuted because ; or
’ Other (specify):
.
My fees are $ for travel and $ for services, for a total of $ 0.00 .
I declare under penalty of perjury that this information is true.
Date:
Server’s signature
Printed name and title
Server’s address
Additional information regarding attempted service, etc:


for the
Eastern District
__________ of North
District Carolina
of __________

)
)
)
Plaintiff(s) )
)
)
)
Defendant(s) )

Hibbett Sporting Goods, Inc.
2626 Glenwood Avenue, Suite 550
Raleigh, NC 27608
Alex J. Hagan
Jeremy M. Falcone
Ellis & Winters LLP
PO Box 33550
Raleigh, NC 27636
CLERK OF COURT
Date:

PROOF OF SERVICE


on (date) ; or

on (date) ; or
.
Date:
Server’s address


for the
Eastern District
__________ of North
District Carolina
of __________

)
)
)
Plaintiff(s) )
)
)
)
Defendant(s) )

Implus Footcare, LLC
327 Hillsborough Street
Raleigh, NC 27603
Alex J. Hagan
Jeremy M. Falcone
Ellis & Winters LLP
PO Box 33550
Raleigh, NC 27636
CLERK OF COURT
Date:

PROOF OF SERVICE


on (date) ; or

on (date) ; or
.
Date:
Server’s address


Buyer S Direct Inc. v. Dick's Sporting Goods - Complaint

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Buyer S Direct Inc. v. Dick's Sporting Goods - Complaint

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IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NORTH CAROLINA

BUYER’S DIRECT INC., )

Case 5:18-cv-00597-D Document 1 Filed 12/19/18 Page 1 of 33

North Carolina, including locations within this judicial district.

North Carolina, including locations within this judicial district.

a principal place of business in Durham, North Carolina.

6. Upon information and belief, Berkshire Partners LLC purchased majority

defendant in this case.

Suite 550, Raleigh, NC 27608.

Case 5:18-cv-00597-D Document 1 Filed 12/19/18 Page 2 of 33

Suite 550, Raleigh, NC 27608.

JURISDICTION AND VENUE

claims based on state law pursuant to 28 U.S.C. § 1367(a).

facilities in the Eastern District of North Carolina.

Case 5:18-cv-00597-D Document 1 Filed 12/19/18 Page 3 of 33

jurisdiction over the Defendants in this district.

A. U.S. Design Patent No. D598,183

Certificate is included in Exhibit 2 attached hereto and is incorporated by reference.

of the ’183 patent in the United States retail market.

Case 5:18-cv-00597-D Document 1 Filed 12/19/18 Page 4 of 33

foot coverings are shown below.

foot coverings highlighting the above-described features is shown below:

Case 5:18-cv-00597-D Document 1 Filed 12/19/18 Page 5 of 33

Case 5:18-cv-00597-D Document 1 Filed 12/19/18 Page 6 of 33

BDI’s website are shown below:

Case 5:18-cv-00597-D Document 1 Filed 12/19/18 Page 7 of 33

marketplace as to the origin of the product.

protected by its intellectual property rights.

Case 5:18-cv-00597-D Document 1 Filed 12/19/18 Page 8 of 33

to purchase BDI in 2016.

snoozies!® foot coverings.

Case 5:18-cv-00597-D Document 1 Filed 12/19/18 Page 9 of 33

marketed is owned by Implus.

the Fall of 2017.

Case 5:18-cv-00597-D Document 1 Filed 12/19/18 Page 10 of 33

or early Summer 2017.

picture of Hibbett’s SOFSOLE FIRESIDE foot coverings:

Case 5:18-cv-00597-D Document 1 Filed 12/19/18 Page 11 of 33

coverings or offered BDI compensation for its infringement.

Case 5:18-cv-00597-D Document 1 Filed 12/19/18 Page 12 of 33

purchased by plaintiff in North Carolina and displayed in paragraph 42 below).

Case 5:18-cv-00597-D Document 1 Filed 12/19/18 Page 13 of 33

CABIN foot coverings being marketed and sold by DSG.

Case 5:18-cv-00597-D Document 1 Filed 12/19/18 Page 14 of 33

from www.dicksportinggoods.com in November 2018, and delivered to Wilson, North Carolina

Case 5:18-cv-00597-D Document 1 Filed 12/19/18 Page 15 of 33

Carolina. See Exhibit 4, a printout from https://www.dickssportinggoods.com/p/field-stream-

socks-18fnswfswslpprnbbapa/18fnswfswslpprnbbapa, indicating that the selected COZY CABIN

Case 5:18-cv-00597-D Document 1 Filed 12/19/18 Page 16 of 33

Case 5:18-cv-00597-D Document 1 Filed 12/19/18 Page 17 of 33

coverings for resale.

and monetary damages.

benefit from its established trade dress and commercial success.

Case 5:18-cv-00597-D Document 1 Filed 12/19/18 Page 18 of 33

56. As illustrated below a sample of the infringing SOFSOLE FIRESIDE foot

57. The following exemplary comparison of Defendant Hibbett’s and Implus’

Case 5:18-cv-00597-D Document 1 Filed 12/19/18 Page 19 of 33

Case 5:18-cv-00597-D Document 1 Filed 12/19/18 Page 20 of 33

and monetary damages.

Case 5:18-cv-00597-D Document 1 Filed 12/19/18 Page 21 of 33

violation of BDI’s patent rights.

coverings for resale.