Craft Smith v. EC Design - Complaint

Case 2:16-cv-01235-EJF Document 2 Filed 12/08/16 Page 1 of 7
Kirk Harris (Utah Bar No. 10221)

kharris@mabr.com
R. Parrish Freeman (Utah Bar No. 7529)
pfreeman@mabr.com
Danny R. Barber (Utah Bar No. 15993)
dbarber@mabr.com
M ASCHOFF B RENNAN
1389 Center Dr., #300
Park City, Utah 84098
Telephone: (435) 252-1360
Facsimile: (435) 252-1361
Attorneys for Plaintiff C RAFT S MITH , LLC
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH
CRAFT SMITH, LLC, Civil No. 2:16-cv-01235-EJF

a California limited liability company,
Plaintiff, COMPLAINT FOR

DECLARATORY JUDGMENT OF
vs. NONINFRINGEMENT
EC DESIGN LLC,
a California limited liability company,
Magistrate Judge Evelyn J. Furse
Defendant.
Plaintiff Craft Smith, LLC (“Craft Smith”) complains against defendant EC Design LLC
doing business as Erin Condren (“EC Design”) for the causes of action alleged as follows:
The Parties
1. Plaintiff Craft Smith is a California limited liability company with its principal
place of business located at 19312 Canyon Dr., Villa Park, California 92861 and further offices
located at 333 River Park Dr., Provo, Utah 84604.

2. Upon information and belief, EC Design is a California limited liability company
with its principal place of business located at 4860 W. 147th St., Hawthorne, California 90250.
Jurisdiction and Venue
3. This action arises under the Copyright Laws of the United States, 17 U.S.C. § 101
et seq., and the Lanham Act, 15 U.S.C. § 1125 et seq. As such, the Court has subject matter
jurisdiction over this action under 28 U.S.C. § 1338. Inasmuch as this action involves a federal
question, subject matter jurisdiction is likewise conferred by 28 U.S.C. § 1331.
4. This action involves a case of actual controversy within the Court’s jurisdiction.
As such, the remedy of a judicial declaration of the rights and other legal relations of the parties
herein is available under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202.
5. This Court has personal jurisdiction over EC Design because EC Design has
purposely availed itself of the privileges and benefits of the laws of the State of Utah, and
regularly conducts business within this State.
6. The Court’s exercise of personal jurisdiction over EC Design is consistent with
the Constitutions of the United States and the State of Utah.
7. Venue is proper in this Court pursuant to at least 28 U.S.C. § 1391(b)(2).
Factual Background
8. Craft Smith makes and sells products in the personal organizer industry, including
but not limited to spiral planner products marketed as the “Creative Year Planner By
Recollections,” among other planners and products marketed under the “Recollections” brand.
9. Craft Smith distributes the Recollections Planner through Michael’s Stores, a
nationwide craft supply company.
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10. EC Design holds itself out as a manufacturer and seller of similar products,
including but not limited to spiral planner products, and specifically including the “LifePlanner”
organizer.
11. Craft Smith and EC Design are competitors in the marketplace for day planner
products.
12. On November 29, 2016, Craft Smith received a letter from K&L Gates on behalf
of EC Design (the “EC Design Letter”). A true and correct copy of the EC Design Letter is
attached hereto as Exhibit A.
13. The EC Design Letter identifies EC Design as the owner of, inter alia, certain
alleged copyrights and alleged trade dress rights in EC Design’s “LifePlanner Organizer”
product.
14. The EC Design Letter includes an express allegation of infringement by Craft
Smith of EC Design’s alleged copyrights and trade dress rights related to EC Design’s
LifePlanner Organizer, and alleges that Craft Smith’s Recollections Planner is an intentional
copy of EC Design’s alleged copyrightable expression and trade dress.
15. The EC Design Letter demanded that Craft Smith immediately cease selling or
advertising any planner, including the Recollections Planner, that incorporates any design, text,
graphic, color combination or other material allegedly found in the EC Design LifePlanner; that
Craft Smith notify all distributors to return unsold Recollections Planners to Craft Smith; and
that Craft Smith provide an detailed accounting of the number of Recollections Planners sold, the
number of Recollections Planners in inventory, and the gross sales to date of Recollections
Planners.
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16. Craft Smith’s Recollections Planners do not infringe any of the alleged copyright
or trade dress rights EC Design claims in the EC Design Letter, for at least the following
exemplary reasons:
a. Craft Smith’s Recollections Planners’ covers have distinct graphical designs
compared to EC Design’s LifePlanner covers;
b. EC Design does not and cannot have copyrights in an interchangeable cover style
in plastic laminate material, which is removable by tearing away slices from a
coil, as such features are barred from being copyright eligible for being
functional;
c. Craft Smith’s Recollections Planners’ covers clearly state that the product is
marketed under the Recollections Brand, and utilizes a distinctly shaped
information placard that is not similar to EC Design’s LifePlanner placard;
d. Craft Smith’s Recollections Planners’ inside covers have distinct graphical
designs compared to EC Design’s LifePlanner’s inside covers;
e. Craft Smith’s Recollections Planners’ contain monthly tabbing arranged in a
different manner than EC Design’s LifePlanners’ monthly tabbing, and utilize a
different color scheme;
f. EC Design provides no evidence that its use of the motivational quote “The Best
Time for New Beginnings is Now” is copyrighted or copyrightable and that it is
the owner of any such alleged copyright. Furthermore, Craft Smith’s
Recollections Planners use of the motivational quote “The Best Time for New
4
Beginnings is Now” and associated graphical arrangement were the product of
Craft Smith’s own independent creation; and
g. Craft Smith’s Recollections Planners are not confusingly similar to EC Design’s
LifePlanners. The evidence offered by EC Design to support its allegations of
likelihood of confusion demonstrates that consumers are capable of distinguishing
between Craft Smith’s and EC Design’s products.
First Cause of Action

(Declaratory Judgement of No Copyright Infringement)
17. Craft Smith re-alleges and incorporates the forgoing paragraphs as though fully
set forth herein.
18. As a result of the acts described in the foregoing paragraphs, there exists a
substantial controversy of sufficient immediacy and reality to warrant the issuance of a
declaratory judgment.
19. Craft Smith is entitled to a declaratory judgement that it is not infringing, has not
infringed, and is not liable for infringing any valid copyright owned by EC Design relating to EC
Design’s day planners products, including EC Design’s LifePlanner Organizer product, either
directly or by inducing others to infringe or by contributing to infringement by others.
Second Cause of Action

(Declaratory Judgement of No Trade Dress Infringement)
20. Craft Smith re-alleges and incorporates the forgoing paragraphs as though fully
set forth herein.
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21. As a result of the acts described in the foregoing paragraphs, there exists a
substantial controversy of sufficient immediacy and reality to warrant the issuance of a
declaratory judgment.
22. Craft smith is entitled to a declaratory judgement that it is not infringing, has not
infringed, and is not liable for infringing any allegedly enforceable trademark or trade dress
rights owned by EC Design relating to EC Design’s day planner products, including EC Design’s
LifePlanner Organizer product, either directly or by inducing other to infringe or by contributing
to infringement by others.
Prayer for Relief
Wherefore, Craft Smith prays for judgment as follows:
A A judgment finding Craft Smith has not infringed any EC Design copyright related to EC
Design’s day planner products, including the LifePlanner Organizer;
B A judgement finding Craft Smith has not infringed the trade dress of any EC Design day
planner product, including the LifePlanner Organizer;
C An award of Craft Smith’s costs and attorney fees;
D For such other and further relief as the Court deems just and equitable.
Demand for Jury Trial
Craft Smith demands a trial by jury on all claims and issues so triable.
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Dated: December 8, 2016 Respectfully submitted,
MASCHOFF BRENNAN
By: /s/ Kirk R. Harris

Kirk Harris
R. Parrish Freeman
Danny Barber
Attorneys for Plaintiff

CRAFT SMITH, LLC.
7
Case 2:16-cv-01235-EJF Document 2-1 Filed 12/08/16 Page 1 of 15
EXHIBIT A
November 29, 2016 Britt Anderson

britt.anderson@klgates.com
T +1 650 798 6746

Via FedEx F +1 650 798 6701
Via Electronic Mail
Chuck Rubin
CEO
Michaels Stores, Inc.
8000 Bent Branch Dr.
Irving, TX 75063
crubin@michaels.com
domains@michaels.com
Christina Smith
President
Craft Smith
19312 Canyon Drive
Villa Park, CA 92861
info@craftsmithco.com
CONFIDENTIAL SETTLEMENT COMMUNICATIONS

FEDERAL RULE OF EVIDENCE 408
RE: UNAUTHORIZED COPYING OF EC DESIGN’S LIFEPLANNER™ PERSONAL ORGANIZER
Dear Mr. Rubin and Ms. Smith:
We are counsel to EC Design LLC dba Erin Condren (“EC Design”) in regard to intellectual
property matters. As we are certain you are aware, EC Design created and has offered the well-
known LifePlanner personal organizer for many years.
It has recently come to our client’s attention that Craft Smith, LLC (“Craft Smith”) and Michaels
Stores, Inc. (“Michaels”) have begun distributing a “Recollections Spiral Planner” through the
Michaels website at www.michaels.com as well as through Michaels physical store locations
(the “Recollections Planner”). One version of The Recollections Planner is advertised at this
online location: http://www.michaels.com/creative-year-dark-floral-medium-planner-by-
recollections/10491230.html#start=1. A copy of the webpage where this planner is advertised is
found at Exhibit A. The Recollections Planner as displayed in one of the Michaels’ physical store
locations is shown at Exhibit B. The Recollections Planner contains numerous individual
K&L GATES LLP

630 HANSEN WAY PALO ALTO CA 94304
T +1 650 798 6700 F +1 650 798 6701 klgates.com
500150201 v2
graphical and textual elements, as well as an overall look and feel, that have been directly
copied from EC Design’s LifePlanner personal organizer. Indeed, the Recollections Planner is
startlingly similar to EC Design’s LifePlanner personal organizer, not just in its overall
organization, which is essentially identical, but in an overwhelming number of details, which
include which include creative and expressive details, the product appearance and the binding
system.
Moreover, both Craft Smith and Michaels are highly familiar with EC Design’s LifePlanner, not
only as a competitive product, but based upon personal meetings and email communications
that both Craft Smith and Michaels representatives have had with EC Design personnel over the
last year to share business ideas and discuss potential cooperation. The Recollections Planner
appears to have been launched shortly after EC Design began sales in June 2016 of its
2016/2017 LifePlanner personal organizer. The Recollections Planner also appears to have
launched only months after Craft Smith’s and Michaels’ meetings and communications with EC
Design occurred. These circumstances lead us to the inescapable conclusion that Craft Smith
and Michaels worked together to intentionally copy EC Design’s copyrightable expression, trade
dress and other elements of the LifePlanner organizer when you designed your Recollections
Planner for distribution through the Michaels website and stores.
The scope of Craft Smith and Michaels’ copying from the LifePlanner personal organizer is so
extensive that it is not possible to describe here in full. But the examples below make it clear
that Craft Smith and Michaels reviewed EC Design’s LifePlanner organizer, and in particular EC
Design’s 2016/2017 Horizontal and Vertical Layout planners, and then copied an extensive
range of graphical, color, color positioning and textual and other physical elements to create the
infringing Recollections Planner.
At a minimum, the conduct described in this letter gives rise to claims of infringement of EC
Design’s copyrights and trade dress. In addition, EC Design has pending design and utility
patent applications on the binding system used for the LifePlanner organizer. We believe that
Craft Smith and Michaels’ copying might constitute willful patent infringement when EC Design’s
patent applications issue.
I. Copyright Infringement
In the United States, to win a claim of copyright infringement, a copyright owner must establish
that it owns a valid copyright, and that the infringer copied original elements from the
copyrighted work. Feist Pub., Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991). EC
Design can show that you copied the LifePlanner personal organizer by demonstrating that its
LifePlanner organizer was widely disseminated but also that Craft Smith met personally with EC
Design in the period prior to the infringement, and that there are substantial similarities between
the LifePlanner personal organizer and the Recollections Planner. See Three Boys Music Corp.
v. Bolton, 212 F.3d 477, 482-83, 486 (9th Cir. 2000). Examples of similarities in appearance
include but are not limited to “subject matter, shapes, colors, materials and arrangement of the
representations.” L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841, 849 (9th Cir. 2012)
2
November 29, 2016
(citation omitted). Copyright protection can protect the selection, coordination, and arrangement
of various elements, regardless of whether each individual element is protectable by itself.” Id.;
Baldwin Cooke Co. v. Keith Clark, Inc., 383 F. Supp 650, 657 (N.D. Ill 1974) (finding
infringement by defendant planner manufacturer who added differing material but utilized
plaintiff’s planner format, style and arrangement).
The consequences of copyright infringement are significant, including an injunction (i.e., an

order requiring the infringer to halt all distribution), impoundment/destruction of infringing
materials, and payment of significant damages. See 17 U.S.C. §§ 503, 504. A copyright owner
can recover both actual damages and the infringer’s profits attributable to the infringement. 17
U.S.C. § 504. In addition, a court may order an infringer to pay the copyright owner’s attorneys’
fees for enforcing the copyright.
The similarities between the Recollections Planner and EC Design’s LifePlanner are stark. It’s
clear that Craft Smith has taken care to craft a product that looks and feels substantially similar
to, and incorporates identical creative elements, so that it can easily be mistaken for EC
Design’s LifePlanner organizer. By way of example only:
• Craft Smith has chosen to use an interchangeable cover style in the same plastic
laminate material, which is removable by tearing away slices from an essentially
identical coil.
• When a user turns to the inside cover, the user is presented with a similar dashboard
design, consisting of a border design and a planner ownership section. The
Recollections Planner uses the term “LIFE” on its title page, in an obvious reference to
EC Design’s “LIFEPLANNER” trademark, which is displayed prominently on the
corresponding EC Design title page. A comparison is shown at Exhibit C.
• Like EC Design’s LifePlanner organizer, the Recollections Planner organizes each new
month with a divider page with a laminated tab with the month on it in a different color.
Following the laminated colored tab is a two-page monthly spread which carries the
color throughout the monthly section, just like EC Design’s product. A side-by-side
comparison of the appearance of the divider tabs for each month is shown at Exhibit D.
• Thereafter, the Recollections Planner’s interior color for each of its monthly sections
follow either the tab colors or the accent colors for each corresponding month in the
2016/2017 EC Design’s LifePlanner, or the Recollections Planner simply replicates
identical colors and tones from other months in the EC Design LifePlanner. A
comparison of the colors between your organizer and EC Design’s by month is shown at
Exhibit E.
• Your planner also relies on motivational quotes at intervals throughout. Our investigation
has shown that most of these quotes are taken from either the EC Design LifePlanner
organizer or from other EC Design sources, such as EC Design blog sources on specific
3
November 29, 2016
dates. For example, in brazen copying of the 2016/2017 EC Design planner, the
covering page for your January 2017 monthly section uses the identical quote used for
January 2017 in EC Design’s planner: “The best time for new beginnings is now.” A
side-by-side comparison of these January cover pages is shown at Exhibit F. There are
many other examples of copying and use of quotes in the Recollections Planner from the
2016/2017 EC Design planner or other EC Design sources.
II. Trade Dress Infringement
Trade dress refers to the “manner in which the goods or services are presented to prospective
purchasers …” to indicate the creator of the dress. Restatement (Third) of Unfair Competition §
16 cmt. A (1995). Trade dress “involves the total image of the product and may include features
such as size, shape, color or color combination, texture, graphics, or even particular sales
techniques.” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 756 n.1 (1992) (citation
omitted). A claim for trade dress infringement requires showing that the plaintiff’s trade dress is
associated with plaintiff, and that the defendant’s trade dress is confusingly similar to the
plaintiff’s from a customer’s perspective. See 15 U.S.C. § 1125; Fuddruckers, Inc. v. Doc’s B.R.
Others, Inc., 826 F.2d 837, 841 (9th Cir. 1987). Federal courts have readily granted trade dress
protection to brightly colored stationery designs. See, e.g., Lisa Frank, Inc. v. Impact Intern.,
Inc., 799 F. Supp. 980, 989 (D. Ariz. 1992) (plaintiff’s use of “bold colors and a graduated color-
fade with knockout-graphics and other artwork” on stationery items found inherently distinctive”).
While secondary meaning need not necessarily be proven, in the Ninth Circuit, proof of
intentional copying, as with the Recollections Planner, “strongly supports” an inference of
secondary meaning. Id.; Vision Sports, Inc. v. Melville Corp., F.2d 609, 615 (9th Cir. 1989).
Given the popularity of EC Design’s LifePlanner organizer, which launched in 2007, and which
has been discussed extensively on social media sites and in numerous third party publications,
EC Design will readily be able to show that consumers associate the distinctive combination of
colors, materials, graphics and planner layout in its LifePlanner organizer with EC Design. Your
distribution of a directly competing planner with little differentiation has resulted in a confusingly
similar product. Third parties have commented on the high degree of similarity between the
Recollections Planner and the LifePlanner. In fact, one shopper on the Michaels website
commented on the webpage featuring your organizer that it was an “Erin Condren Lookalike”
and that it was “eerily similar to the Erin Condren planner.” See Exhibit G. These public
comments by shoppers confirm the likelihood of confusion as well as intentional copying of EC
Design’s trade dress.
III. Potential Future Patent Infringement
EC Design has a number of pending patent applications directed to the binding mechanism of
the LifePlanner organizer. A copy of EC Design’s international patent application is found at
Exhibit H. Once EC Design’s patent applications issue, the Recollections Planner could
potentially be found to infringe EC Design’s patents. In addition, evidence of copying could form
the basis of a willful infringement suit subjecting Craft Smith and/or Michaels to treble damages.
4
November 29, 2016
IV. Craft Smith Must Immediately Cease Any Sales or Distribution of the
Recollections Planner
EC Design takes enforcement of its copyright and trade dress very seriously, and Craft Smith
and Michaels have clearly and intentionally infringed EC Design’s long established rights.
Nevertheless, without any waiver of its enforcement rights and strictly as an attempt to
compromise, EC Design is willing to enter into a written agreement to settle this matter with
Craft Smith and Michaels without a federal court proceeding provided you are willing to agree to
the following:
• Craft Smith and Michaels immediately cease selling or advertising any planner, including
the Recollections Planner, that incorporates any design, text, graphic, color combination
or other material found in the EC Design LifePlanner organizer, online and in any
physical store location;
• Craft Smith and Michaels immediately notify all third party distributors or known vendor
that each distributor should immediately return unsold Recollections Planners to you;
• Craft Smith and Michaels provide a detailed accounting of all your Recollections
Planners sold and sign a declaration attesting to the accounting.
The foregoing accounting shall include at minimum the following: (1) total number of units of
Recollections Planners sold by type; (2) total number of units of Recollections Planners by type
remaining in your inventory; and (3) gross sales value to date of Recollections Planners. EC
Design intends to provide guidance as to the disposition of remaining infringing inventory. You
should not alter or destroy any such inventory at this time. You should also take steps to
preserve any records, documents or electronic communications regarding your planning,
production and sales of the Recollections Planners.
We require your written agreement to comply with the above provisions by December 6, 2016.
This letter is without prejudice to any of the EC Design’s rights, each of which is expressly
reserved.
Yours truly,
Britt L. Anderson
cc: EC Design LLC
5
November 29, 2016
EXHIBIT A
6
November __, 2016
EXHIBIT B
7
November __, 2016
EXHIBIT B (continued)
8
November ___, 2016
EXHIBIT C
LifePlanner Organizer
Recollections Planner
9
November __, 2016
EXHIBIT D
10
November __, 2016
EXHIBIT E
11
November __, 2016
EXHIBIT F
12
November __, 2016
EXHIBIT G
http://www.michaels.com/creative-year-dark-floral-medium-planner-by-
recollections/10491230.html#start=1 (visited November 30, 2016)
13
November __, 2016
EXHIBIT H
WO 2016/127112 A1
14
November __, 2016
Case
Case2:16-cv-01235-EJF
2:16-cv-01235-EJF Document
Document2-2
1 Filed
Filed12/08/16
12/08/16 Page
Page11ofof11
JS 44 (Rev. llil5) 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. Thts 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 inttiating the civil docket sheet. (SEE INS7RUCTIONS ON NF:XT PAGH OF THI.'>' FORM.j
I. (a) PLAINTIFFS DEFENDANTS

CRAFT SMITH, LLC., a California limited liability company EC DESIGN, LLC, a California limited liability company
Orange County, California!
(b} County of Residence of First Listed Plaintiff Utah CQJ!.Djy,...Utah County of Residence of First Listed Defendant
···-----·····----
(A'XctJ'T IN U.S 1'/AJNllFF CASRS) f!N US Pl.A!NT!FF CASK'i ON/X)
NOTE: IN LAND CONDEMNATION CASES, t;SE THE LOCATION OF
THE TRACT OF LAND INVOLVED
(C) Attorneys fF1rm Name, Address, and Telephone Number) Attorneys ({/Known)
Kirk R. Harris, R. Parrish Freeman, and Daniel Barber
Masch off Brennan, PLLC
1389 Center Drive, Suite 300, Park City, Utah 84098, T: (435) 252-1360
II. BASIS OF JURISDICTION (Ptacean "X"inOneBoxOnlyJ Ill. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" m one Boxfi;r Plaintiff
(For Divewty Cases Only) and One Box for Dejimdanl)
:J l U.S. Government ~ 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party; Citizen ofThis State 0 I 0 I Incorporated or Principal Place :J 4 0 4
of Business In Th1s State
0 2 U.S. Government 0 4 Diver<ity Citizen of Another State 0 2 0 2 Incorporated and Principal Place 0 5 0 5
Defendant (Indicate CJ/Jzenship of Panics in Item II!j of Business In Another State
0 3 0 3 Foreign Nation 0 6 0 6
IV :'IIATURE OF SUIT fP/ace an "X" tn One Box Only)

CONTRACT TORTS F · RFEI'l1JJUi'jP ~AXKRUJ>TCV UUU<;KSTATUTES
0 I I 0 insurance PERSONAL INJllRY PERSONAL INJURY 0 625 Drug Related Seizure :J 422 Appeal 28 USC 158 0 375 False Claims Act
0 120 Marine 0 310 Airplane 0 365 Personal Injury - of Property 21 USC 881 0 423 Withdrawal 0 376 Qui Tam (31 USC
0 130 Miller Act 0 3 15 Airplane Product Preduct L1ability 0 6900ther 28 t;SC 157 3729(a))
0 140 Negotiable Instrument Liability 0 36 7 Health Carel 0 400 State Reapportionment
0 150 Recovery of Overpayment 0 320 Assault, Libel & Pharmaceutical 0 410Antitrust
& Enforcement of Judgment Slander Personal Injury ~ 820 Copyrights 0 430 Banks and Banking
D IS I Medicare Act 0 330 Federal Employers' Product Liability 0 830 Patent 0 450 Commerce
0 I 52 Recovery of Defaulted Liability 0 368 Asbestos Personal 110 840 Trademark 0 460 Deportation
Student Loans 0 340 Marine Injury Product :J 470 Racketeer Influenced and
(Excludes Veterans) 0 345 Marine Product Liability Corrupt Organizations
0 153 Recovery of Overpayment Liability PERSONAL PROPERTY 0 710 Fair Labor Standards 0 861 HIA (I 395ft) 0 480 Consumer Credit
of Veteran's Benefits D 350 Motor Vehicle 0 370 Other Fraud Act 0 862 Black Lung (923) 0 490 Cable/Sat TV
D 160 Stockholders' SUits 0 355 Motor Vehicle 0 371 Truth in Lending 0 720 Labor/Management 0 863 DIWC!DIWW (405(g)) 0 850 Securities/Commodities/
:J !90 Other Contract Product Liability D 380 Other Personal Relations 0 864 SSID Title XVI Exchange
:J I 95 Contract Product Liability :J 360 Other Personal Property Damage 0 740 Railway Labor Act 0 865 RS! (405(g)) 0 890 Other Statutory Actions
0 196 Franchise Injury 0 38 5 Property Damage :J 751 Family and Medical 0 891 Agricultural Acts
D 362 Personal Injury- Product Liability Leave Act D 893 Environmental Maners
Medical Malpractice 0 790 Other Labor Litigation D 895 Freedom oflnfonnation
PJUS(lNERI'lmTIONS 0 791 Employee Retirement : F'EDERALTAXSUITS Act
0 21 0 Land Condemnation 0 440 Other Civil Rights Habeas Corpus: Income Security Act D 870 Taxes (lJ.S. Plaintiff D 896 Arbitration
0 220 Foredosure D 441 Voting D 463 Alien Detainee or Defendant) D 899 Administrative Procedure
0 230 Rent Lease & Ejectment 0 44 2 Employment 0 5 I 0 Mot1ons to Vacate 0 87 I IRS-Third Party Act/Review or Appeal of
0 240 Torts to Land 0 443 Housing! Sentence 26 t;SC 7609 Agency Decision
0 245 Tort Product Liability Accommodations 0 530 General 0 950 Constitutionality of
0 290 All Other Real Property 0 44 5 Amer. wiDisabilities - 0 535 Death Penalty !MMlGIL\'flQN State Statutes
Employment Other: 0 462 Naturalization Application
0 446 Amer. w/Disabilities- D 540 Mandamus & Other 0 465 Other Immigration
Other 0 550 Civil Rights Actions
0 448 Education D 555 Prison Condition
D 560 Civil Detainee -
Conditions of
Confinement
V. 0 Rl GIN (Place an "X" in One Box Only)

i:< 1 Original 0 2 Removed from Cl 3 Remanded from 0 4 Reinstated or 0 5 Transferred from 0 6 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation
(.vpectfY)
ement
VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION CHECK YES only if demanded in complaint
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: ~ Yes 0 No
VIII. RELATED CASE(S)
(See instructiom):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATIORNEY OF RECOR~
December 8, 2016 lsi Kirk R. Harris

FOR OFFICE US~; ONLY
Case: 2:16cv01235
Ass~gned
To : Furse, Evelyn J.
RECEIPT# AMOt;NT APPLYING JFP
Ass1gn. Date : 12/8/2016
Description: Craft Smith v. EC Design

Craft Smith v. EC Design - Complaint

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Case 2:16-cv-01235-EJF Document 2 Filed 12/08/16 Page 1 of 7

Kirk Harris (Utah Bar No. 10221)

Attorneys for Plaintiff C RAFT S MITH , LLC

IN THE UNITED STATES DISTRICT COURT

CRAFT SMITH, LLC, Civil No. 2:16-cv-01235-EJF

Plaintiff, COMPLAINT FOR

located at 333 River Park Dr., Provo, Utah 84604.

2. Upon information and belief, EC Design is a California limited liability company

Jurisdiction and Venue

question, subject matter jurisdiction is likewise conferred by 28 U.S.C. § 1331.

regularly conducts business within this State.

6. The Court’s exercise of personal jurisdiction over EC Design is consistent with

the Constitutions of the United States and the State of Utah.

7. Venue is proper in this Court pursuant to at least 28 U.S.C. § 1391(b)(2).

9. Craft Smith distributes the Recollections Planner through Michael’s Stores, a

nationwide craft supply company.

attached hereto as Exhibit A.

14. The EC Design Letter includes an express allegation of infringement by Craft

copy of EC Design’s alleged copyrightable expression and trade dress.

a. Craft Smith’s Recollections Planners’ covers have distinct graphical designs

compared to EC Design’s LifePlanner covers;

in plastic laminate material, which is removable by tearing away slices from a

marketed under the Recollections Brand, and utilizes a distinctly shaped

information placard that is not similar to EC Design’s LifePlanner placard;

d. Craft Smith’s Recollections Planners’ inside covers have distinct graphical

designs compared to EC Design’s LifePlanner’s inside covers;

e. Craft Smith’s Recollections Planners’ contain monthly tabbing arranged in a

different manner than EC Design’s LifePlanners’ monthly tabbing, and utilize a

different color scheme;

Time for New Beginnings is Now” is copyrighted or copyrightable and that it is

the owner of any such alleged copyright. Furthermore, Craft Smith’s

Beginnings is Now” and associated graphical arrangement were the product of

Craft Smith’s own independent creation; and

g. Craft Smith’s Recollections Planners are not confusingly similar to EC Design’s

LifePlanners. The evidence offered by EC Design to support its allegations of

likelihood of confusion demonstrates that consumers are capable of distinguishing

between Craft Smith’s and EC Design’s products.

First Cause of Action

set forth herein.

substantial controversy of sufficient immediacy and reality to warrant the issuance of a

directly or by inducing others to infringe or by contributing to infringement by others.

Second Cause of Action

set forth herein.

substantial controversy of sufficient immediacy and reality to warrant the issuance of a

LifePlanner Organizer product, either directly or by inducing other to infringe or by contributing

Prayer for Relief

Wherefore, Craft Smith prays for judgment as follows:

Design’s day planner products, including the LifePlanner Organizer;

planner product, including the LifePlanner Organizer;

C An award of Craft Smith’s costs and attorney fees;

Demand for Jury Trial

Dated: December 8, 2016 Respectfully submitted,

By: /s/ Kirk R. Harris

Attorneys for Plaintiff

November 29, 2016 Britt Anderson

T +1 650 798 6746

CONFIDENTIAL SETTLEMENT COMMUNICATIONS

RE: UNAUTHORIZED COPYING OF EC DESIGN’S LIFEPLANNER™ PERSONAL ORGANIZER

Dear Mr. Rubin and Ms. Smith:

K&L GATES LLP

The consequences of copyright infringement are significant, including an injunction (i.e., an

II. Trade Dress Infringement

III. Potential Future Patent Infringement

I. (a) PLAINTIFFS DEFENDANTS