Scentsy v. Kellytoy Worldwide - Complaint

Case 1:19-cv-00059-BLW Document 1 Filed 02/15/19 Page 1 of 36
Ryan T. McFarland, !SB No. 7347

SCENTSY, INC.
P.O. Box 1335
Meridian, ID 83642
Telephone: 208.895.1291
Facsimile: 208.895.1270
Email: rmcfarland@scentsy.com
Attorney for Plaintiff
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
SCENTSY, INC., an Idaho Corporation,

Case No. _ _ _ _ __
Plaintiff,
COMPLAINT
vs.
Fee Category:
KELL YTOY WORLDWIDE, INC., a Filing Fee: $
California corporation, and KELL YTOY
(USA), INC. , a California corporation,
Defendants.
Plaintiff Scentsy, Inc. (herein, "Scentsy"), pleads and alleges as fo llows:
I.
PARTIES
1. Scentsy, Inc. ("Scentsy") is an Idaho corporation with its principal place of
business in Ada County, Idaho.
2. On information and belief, Defendant Kellytoy Worldwide, Inc. is a Californ ia
corporation, with its principal place of business in Los Angeles County, California.
COMPLAINT - 1
3. On information and belief, Defendant Kellytoy (USA), Inc. is a California
corporation, with its principal place of business in Los Angeles County, California.
4. On information and belief, Defendants Kellytoy Worldwide, Inc. and Kellytoy
(USA), Inc. (collectively referred to herein as "Defendants" or "Kellytoy") are related entities,
under the same ownership, operation, and control.
II.
VENUE AND JURISDICTION
5. Jurisdiction is proper in this Court because this litigation arises under federal law,
namely 15 U.S.C . §§ 1116 and 11 21 et seq. (the LanJ1am Act), 35 U.S.C. § 27 1 et seq. (design
patent), 17 U.S .C. § 101 et seq. (copyright), and 28 U.S.C. §§ 133 1 (federal question) and
1338(a) (patents, copyrights, and trademarks). This Comt a lso has jurisdiction under 28 U.S.C.
§§ 1332 (diversity of citizenship) and 1367 (supplemental jurisdiction).
6. This Court has personal jurisdiction over Defendants because Defendants, on
information and belief, conduct business in the State ofldaho and within this district, including
advertising and selling products to residents of the State ofldaho, and purposefully availing
themselves of the laws and protection of the State of Idal10.
7. Venue is proper in this district under 28 U.S.C. § 139 l (b).
III.
GENERAL ALLEGATIONS
8. Since at least 2004, Scentsy has been engaged in the business of selling fragrance
products to the public, throughout the United States. Scentsy products include, inter alia,
fragrance wax, electric wax warmers, fragrance oil s including essential oils, oil diffusers, skin
care, laundry care, and other personal and household fragrance products.
COMPLAINT - 2
9. In 2010, Scentsy began selling scent paks and stuffed toys with fragrance pouches
known as "Scentsy Buddies"). Scentsy has sold Scentsy Buddies continuously since 2010, and to
date has brought to market more than 144 models of Scentsy Buddies and has so ld more than
$88,000,000.00 worth of Scentsy Buddies throughout the world.
10. Since at least 2004, Scentsy has used the mark SCENTSY in commerce in
connection with its sale of all Scentsy products, including Scentsy Buddies.
11 . Scentsy has registered a number of trademarks, design patents, and copyrights,
with (respectively) the United States Patent and Trademark Offi ce and the United States
Copyright Office, in an effort to protect Scentsy's intellectual property rights in the Scentsy
Buddies. Those registrations include, but are not limited to, the fo llowing):
Applicable
Trademark Registration
Type of Number (TRN), Patent
Protected Image
Protection Number (PN), or
Copyright Number (CRN)
and Re istration Date
TRN: 3417399
Trademark SCENTSY
A ril 29, 2008
TRN: 3985480
Trademark
June 28, 2011
COMPLAINT - 3
PN: US D651 ,260 Sl

Patent December 27, 2011
_,
"/_
!"' :_-
(t'· ·~· . ·- ..
PN: USD701273S 1
Patent
March 18, 2014
CRN: VA-1-920-880
Copyright
August 6, 20 14
COMPLAINT _ 4
12. Defendants has had actual or constructive knowledge of Scentsy' s intellectual
property in its Scentsy Buddies since at least 2011 .
13 . Notwithstanding Scentsy's established rights in the Scentsy Buddies and
Defendant's knowledge of Scentsy's rights, Defendants have been manufacturing, advertising,
and selling to the public stuffed toys which infringe on Scentsy's intellectual property rights
(herein, the " Infringing Toys"). Defendants have sold Infringing Toys in interstate commerce,
including at the website located at www.kellytoy.com (hereinafter, " Defendant's Website").
14. On or about March 26, 20 18, Scentsy sent Defendants a letter notify ing
Defendants that they were infringing Scentsy's intellectual property rights in the Scentsy
Buddies and demanding that Defendants immediately and permanently stop selling the
Infringing Toys. A copy of Scentsy's March 26, 20 18 letter, which includes images of both the
Scentsy Buddies and the Infringing Toys, is attached hereto as Exhibit A.
15. On or about November 11 , 20 18, Scentsy discovered that Defendants were
continuing to infringe on Scentsy' s intellectual prope1ty rights in the Scentsy Buddies when a
Scentsy customer brought an Infringing Toy to Scentsy's attention.
16. At no time has Scentsy authorized Defendants to use any of the intellectual
property rights in the Scentsy Buddies. Defendants are not affiliated or associated with Scentsy
in any way.
17. Because of the wide-spread recognition, distinctiveness, and goodwill of the
intellectual property rights in the Scentsy Buddies, Defendants' infringement is likely to cause
confusion or mistake in the minds of consumers, or are likely to deceive consumers as to the
COMPLAINT - 5
affiliation, connection, or association of Defendants' products with Scentsy, and is a violation of
15 U.S.C. § l 125(a).
18. Defendants' Infringing Toys has and will continue to cause actual confusion with
and dilution of the distinctive quality of the Mark.
19. Defendants' infringement of Scentsy's intellectual property rights in the Scentsy
Buddies is wanton, willful, and has been committed in bad faith with the intent to profit from
Scentsy's goodwill, and with the intent to cause confusion, mistake and deception.
20. As a result of Defendants' wrongful acts, Scentsy has suffered, and will continue
to suffer, irreparable injury in the form of lost goodwill, lost income, and injury to its reputation.
No monetary remedy alone would be adequate to compensate Scentsy for the harm that
Defendants' wrongful acts have caused to Scentsy's trademarks, reputation, and goodwill if
Defendants are not enjoined from their wrongful acts.
IV.
CLAIMS FOR RELIEF
A. FIRST CLAIM FOR RELIEF

(Trademark Infringement, 15 U.S.C. §1114)
2 1. Scentsy incorporates paragraphs 1 through 20 above as if set forth herein in full.
22. Since at least 2004, Scentsy has been the owner of valuable trademarks. Since
20 10, Scentsy has been the owner of trademarks in the Scentsy Buddies.
23. Since 2010, all Scentsy Buddies have contained a "patch" on the rear of the
Buddy body, e.g., on the "hip" of those Buddies that have legs. The patch is rectangular, with
two stars on the interior of the rectangle, and two stylized "stiches" on each of the four sides of
COMPLAINT - 6
the rectangle. A true and co1Tect photograph of a patch, which is typical of all Scentsy Buddies,
is attached hereto as Exhibit B.
24. In 2011, Scentsy registered its first Scentsy-Buddy-specific trademark,
Registration Number 3985480, referenced in the table in paragraph 11 supra. All Scentsy Buddy
trademarks, including but not necessarily limited to the "patch" and Registration Number
3985480 are referred to herein as the "Buddy Marks."
25. The consuming public recogni zes the Buddy Marks as being distinctive and as an
identifier of the high-quality goods associated with Scentsy.
26. The Buddy Marks have acquired secondary meaning in the minds of the
consuming public.
27. Notwithstanding Scentsy's prior rights in the Buddy Marks, Defendants have used
and continue to use, confusingly similar trademarks on the Infringing Toys - goods that are
related to Scentsy' s products and that are sold, offered for sale, distributed, and advertised in
interstate commerce.
28. Defendants' use of the Buddy Marks (or confusingly similar trademarks) in
connection with the advertisement and sale of Infringing Toys - products in interstate commerce
- is likely to cause confusion, mistake, or deception as to the origin, sponsorship or approval of
Defendants' goods.
29. Defendant's use of the Buddy Marks is also likely to cause initial interest and
other confusion among consumers and potential consumers of Scentsy's goods.
30. Defendants' actions constitute trademark infringement in violation of 15 U.S.C.
§ l 125(a).
COMPLAINT - 7
31. Defendants will continue, unless enjoined, to cause irreparable harm to the
goodwill and reputation of Scentsy.
32. Defendants' actions were taken with knowledge of Scentsy' s rights, and thus
constitute deliberate and intentional infringement, justifying an award of treble damages to
Scentsy, pursuant to 15 U.S.C. § 11 17, in an amount to be determined at trial.
B. SECOND CLAIM FOR RELIEF

(Common Law Trademark Infringement)
33. Scentsy incorporates paragraphs 1 through 32 above as if set forth herein in full.
34. Scentsy is the owner of the Buddy Marks, which are recognized by the consuming
public as being distinctive and identifiers of the high-quality goods associated with Scentsy.
35. The Buddy Marks are distinctive and have acquired secondary meaning in the
minds of the consuming public.
36. Notwithstanding Scentsy's prior rights in the Buddy Marks, Defendants have used
and continue to use, confusingly similar trademarks in connection w ith the advertising and sale
of the Infringing Toys - goods that are related to Scentsy's products in interstate commerce that
have caused confusion and are likely to continue to cause confusion, mistake, or deception as to
the origin, sponsorship or approval of Defendants' goods.
37. Defendants' actions constitute common law trademark infringement.
38. Defendants will continue, un less enjoined, to cause irreparable harm to the
C. THIRD CLAIM FOR RELIEF

(False Designation of Origin, Lanham Act §43(a) (15 U.S.C. §1125(a)))
39. Scentsy incorporates paragraphs 1 through 38 above as if set forth herein in full.
COMPLAINT - 8
40. Defendants' use in commerce of marks that are confusingly similar to the Buddy
Marks in connection with the advertising and sale of Infri nging Toys - goods that are related to
Scentsy' s goods in interstate commerce - is likely to cause confusion, including initial interest
confusion, or to cause mistake, or to deceive the relevant public into believing that the Infringing
Toys are authorized, sponsored or approved by Scentsy.
41. Defendants' actions as described herein constitute false designations of origin, in
violation of 15 U.S.C. §11 25(a).
42. Defendants will continue, unless enjoined, to cause irreparable harm to the
43. Defendants' actions were taken with knowledge of Scentsy's rights, and thus
constitute deliberate and intentional infringement, justifying an award of treble damages to
Scentsy, pursuant to 15 U.S.C. § 1117, in an an1ount to be detem1ined at trial.
D. FOURTH CLAIM FOR RELIEF

(Patent Infringement)
44. Scentsy realleges paragraphs 1 through 43 above and incorporates the same by
reference herein as if set forth in full.
45. Scentsy owns United States Design patents D651260Sl and USD70 1273S l listed
above, copies of which are attached as Exhibits C and D ("Scentsy' s Patents").
46. On information and belief, Defendants had actual notice of Scentsy' s Patents
and/or constructive notice of Scentsy's Patents pursuant to 35 U.S.C. § 287.
47. As the image comparisons shown in Exhibit A reveal, Defendants have
misappropriated Scentsy' s designs in the Infringing Toys.
COMPLAINT - 9
48. Defendants have infringed and continue to infringe, contribute to the infringement
of, and/or actively induce others to infringe Scentsy' s Patents by making, using, selling, offering
to sell and/or importing in the United States, without authorization from Scentsy, the Infringing
Toys which embody the designs covered by Scentsy' s Patents .
49. Defendants' conduct constitutes design patent infringement, either literal or under
the doctrine of equivalents, in violation of 35 U.S.C. §271.
50. For example, the Infringing Toys include at least the frustoconical or reverse-
tapered arms and legs as claimed in Scentsy's Patents as illustrated in, for example, the figures
included in both patents. The design of the Infringing Toys is such that, in the eye of the ordinary
observer, the Infringing Toys are substantially the same as the claims of Scentsy's Patents.
51. Defendants' actions were taken with knowledge of Scentsy's rights, and thus
constitute willful, deliberate and intentional infringement, justify ing an award of treble damages
to Scentsy, pursuant to 35 U.S.C. §284, in an amount to be determined at trial.
E. FIFTH CLAIM FOR RELIEF

(Copyright Infringement)
52. Scentsy realleges paragraphs I through 5 I above and incorporates the same by
reference herein as if set fo1th in ful I.
53. As the owner of a copyright in the Scentsy Buddies, Scentsy possesses exclusive
rights in the Scentsy Buddies, including the exclusive rights to reproduce, create derivative
works based upon and publicly distribute copies and derivative works based upon the Scentsy
Buddies.
COMPLAINT- 10
54. Defendants have infringed and are infringing Scentsy's exclusive rights in the
Scentsy Buddies, via Defendants' Infringing Toys, which are copies and derivative works of the
Scentsy Buddies and which are substantially similar to the Scentsy Buddies, and then selling
Defendants' Infringing Toys fo r profit.
55. The manufacturing, advertising, marketing, and selling of Defendants' Infringing
Toys infringe Scentsy copyrights in the Scentsy Buddies, in that:
a) The shape and color of the body of Defendants' Infringing Toys are
substantially similar to the shape and color of the Scentsy Buddies, in that they each are each
conical, with a wide bottom and a narrow top.
b) The design and shape and color of the head and face of Defendants'
Infringing Toys are identical to the design and shape and color of Scentsy Buddies' heads and
faces.
c) The design and shape of the ears of Defendants' Infringing Toys are
identical to the design and shape of the Scentsy Buddies' ears, in that the ears of both toys are
long with pastel purple and pink polka dots on the underside.
d) T he shape of the limbs of Defendants' Infringing Toys are substantially
similar to the shape of the Scentsy Buddies, in that they each are each conical, w ith circular ends,
rather than feet or hands.
V.
ATTORNEY FEES
56. Scentsy realleges and incorporate paragraphs 1 through 55 above as if set fo1ih
herein in full.
COMPLAINT - 11
57. Defendant' s continued infringement of Scentsy's trademark rights, Lanham Act
rights, patent rights, and copyrights, is done with knowledge and in bad faith, and is in violation
of both federal and Idaho law. As a result, Scentsy has been required to prosecute this action.
Under 15 U.S.C. § 1117 and 17 U.S.C. § 505 and 35 U.S.C. §285, Scentsy is entitled to recover
its costs and reasonable attorneys' fees inctmed in prosecuting this action. Based upon Scentsy 's
experience in litigating such claims, reasonable attorneys' fees in the event that judgment is
entered by default are $ 10,000.00.
VI.
PRAYER FOR RELIEF
WHEREFORE, Scentsy prays for entry of judgment against Defendants as follows:
AS TO CLAIMS FOR RELIEF ONE, TWO AND THREE:
1. A judgment that Defendants have infringed Scentsy's trademark rights in the
Scentsy Buddies;
2. For recovery of Defendants' profits, pursuant to 15 U.S.C. § 1117, the precise
amount to be proven at trial;
3. For Scentsy's actual damages, pursuant to 15 U.S.C. §1117, the precise amount to
be proven at trial ;
4. For an award of treble damages, pursuant to 15 U.S.C. § 1117, the precise amount
to be proven at tria l;
5. For a temporary and preliminary injunction enjoining Defendants and those acting
in privity or concert w ith Defendants from infringing Scentsy's trademark rights in the Scentsy
Buddies by using confusingly simi lar marks, in the advertising or selling of goods, until the
Court has decided the merits of this action; and
COMPLAINT - 12
6. For a permanent inj unction enjoining Defendants and those acting in privity or
concert with Defendants from using Scentsy's trademarks, or confusingly similar marks, in the
advertising or selling of goods.
AS TO CLAIM FOR RELIEF FOUR:
1. A judgment that Defendants have infringed Scentsy' s Patents;
2. For recovery of Defendants' profits pursuant to 35 U.S.C. § 289;
3. For an award of damages adequate to compensate for the infringement, including
treble damages, pursuant to 35 U.S .C . § 284, together with interest and costs.
4. A judgment declaring this case to be exceptional and awarding Scentsy its
reasonable attorneys' fees pursuant to 35 U.S .C. § 285;
5. For a temporary and preliminary injunction enjoining Defendants and those acting
in privity or concert with Defendants from infringing Scentsy's Patents in the advertising or
selling of goods, until the Court has decided the merits of this action; and
6. For a permanent injunction enjoining Defendants and those acting in privity or
concert with Defendants from using Scentsy's patented designs in the advertising or selling of
goods.
AS TO CLAIM FOR RELIEF FIVE:
1. A judgment that Defendants have infringed Scentsy's copyright in the Scentsy
Buddies;
2. For actual damages, pursuant to 17 U .S.C. § 504, the precise amount to be proven at
trial;
COMPLAINT- 13
3. For statutory damages, pursuant to 17 U.S.C. § 504, the precise amount to be proven
at trial;
4. For a temporary and preliminary injunction enjoining Defendants and those acting in
privity or concert with Defendants from the unauthorized making, using, advertising, and selling
of Defendants' Infringing Toys, until the Court has decided the merits of thi s action; and
5. For a permanent injunction enjoining Defendants and those acting in privity or
concert with Defendants from the unauthorized making, using, advertising, and selling of
Defendants' Infringing Toys.
AS TO ALL CLAIMS FOR RELIEF:
1. For costs and attorneys' fees incurred by Scentsy in prosecuting this action; and
2. For such other and further relief as the Court deems just and proper.
DATED THIS ~ day of February 2019.
SCENTSY, INC.
By d,r\__ -
RMaWT. McFarland, ISB No. 7347
At orney for Plaintiff
COMPLAINT- 14
Exhibit A
COMPLAINT - 15
SCEN TSY
Please co nfirm yo t,r c~)mplinr,ce ,vit!l this demand by sending rnt.: :-1 oi.mlinm11ic-111 ,~r llk
;ibovt: hy April l 8, 20 l S. Pleast! be advised that if you frUI to comp I:,: wi1h this dt111And and contirrn
yuur co.mplio11..:.e l>y Afwil 18. 20 I 8, Scemsy 1-eserves the. right l\.l ~n.tbrc::c it" right~ hy all legal
111¢i:ns, inch1ding. wirhout limitation in n couri: of law whcrt·in S:.:..:ntsy wiJI :;c::k an illjunction
pn)hihiLi11g your ~ )1Hinued illt"'ringcm~.'lt of Sc~msy:s rights_, tlS v,:dl U5 d nmuge~ :md ;1Llun1~>•:;•
fees and cosl!S incurred in enlbK,ing its rights.
If you have any questions) pkast do n01 hcsilalc to conui.ct mi!.
Br.:nl R..tsLian
Lcgul Counsel
Kell~•ioy Lener, 26 Mar.::h 20£8, P~. 2

fJ/.1.l m.l.h~ /<..M')I.,, f r1/.u.JAA.Ut,: ~ ttNt, :Jn.l,fli,~ IIM dlJUl,
COMPLAINT - 16
SCE N T SY
KHL Y l()Y RAflfllT:
-.• _..
J.:r:1.1.YTOY RA0 nlT:
Kdly I oy L~ C!. 26 M!11'd't 2(•! 8. f•g. '.!

't'(,~ \t~ IJIJS /«<1>\t. tnUwn-dte 4CIIO(o) M.(t ~bpi~ tM ~
COMPLAINT - 17
SCENTSY
S~F.'\TSY"S ROOSF.VF.1.T THF. RAARTT:

•
Kd l>·TQy i.d U:r, ,.6 M:11-ch ,.0 18, Pt , .:I

1ti.WJ~U~,: lu:G,U,. f11lil:m.th« ,lml4S ua.t.£~,up.it& IJ'J; M.ti•
COMPLAINT - 18
SC ENTSY
-
SCENTSY-S ROOSEVELT TH£ KAlllllT:
K.d l~'I O'f L:u~r, 2(1 ~:l:u::h 2(1l S, I';.:., S

Wa-\m.!IIA ~ W~ t 11!~ Mf.ta'~/WC.1'~ lM ~ ,
COMPLAINT - 19
SCENTSY
-
SCENT S Y'S ROOSJ!VLlLT T lll! R/\llJJl'J':
Ki::llyT<>y L<:t:er, 26 Mm-c.h 2018. Pg, 6

1d(w;-~tkt Atll'\4 &:/k."IIJI liu WLlM fl/Ill :.h.yuU. llls.UIII,
COMPLAINT - 20
Exhibit B
COMPLAINT - 21
Exhibit C
COMPLAINT - 22
I 1111111111111111 lllll llllll llll lllll lllll lllll lllll lllll 111111111111111111
US00D65 l 260S
c12) United States Design Patent ( IO) Patent No.: US D651,260 S

Stewart (4 5) Date of Patent: ** Dec. 27, 2011
(54) TOY ANIMAL (74) Attorney, Agent, or Firm - TraskBritt
(75) Inven tor: Julianne Stewart, Meridian, JD (US) (57) C LAfM

The ornamental design for a toy animal, as shown and
(73) Assignee: Sccntsy, Inc., Meridian, JD (US)
described.
(**) Term: 14 Years
DESCRIPTION
(2 1) Appl. No.: 29/366,404
FIG. J isaperspcctiveviewofanembodiment ofa toyanimali
(22) Filed: Jul. 23, 2010 illustrated in a seated condition, showing my new design;
(SI) LOC (9) Cl. 2 1-01 FIG. 2 is a front view of the toy animal shown in FIG. I ;
(52) U.S.CI. D21/652 FIG. 3 is a rear view· of the toy animal shown in FIG. 1,
(58) Field of Classiticatiou Search D21 / 576, wherein a rL-cess compartment located in the back of the
D21/596, 652; D6/598; 44 6/72. 97, 268-269 animal is illustrated in a closed condition;
See application file for complete search history. FJG. 4 is a first side view of the toy animal shown in FIG. 1;
FIG. 5 is a second side view of the toy animal shown in FIG.
(56) References Cited 1;
FJG. 6 is a top view of the toy animal shown in FIG. 1;
U.S. PATENT DOCUMENTS FIG. 7 is a bonom view of the toy animal shown in FIG. 1;
D 140,492 S • 2/ 1945 Szrajcr .. . ............ D21/652 FJG. 8 is a rear view of the toy animal shown in FJG. 1,
D298,444 S • I 111988 Albert .......................... D211652 wherein the recess compartment located in the back of the
D325,408 S • 4/ 1992 Williams, Sr................ D211652 animal is illustrated in an open condition; and,
D542,364 S • S/2007 Oren et al. ............. D2116S2 FlG. 9 is a front view of the toy animal shown in FJG. 1,
• cited by examiner illustrated in a standing condition.
Primary l:,,Xaminer - Sandra Morris J C laim, S Drawing Sheets
COMPLAINT - 23
U.S. Patent Dec. 27, 2011 Sheet 1 of 5 US D651,260 S
FIG. 1
FIG.2
COMPLAINT - 24
FIG. 3
FIG.4
COMPLAINT - 25
FIG. 5
FIG. 6
COMPLAINT - 26
FIG. 7
FIG. 8
COMPLAINT - 27
FIG. 9
COMPLAINT - 28
Exhibit D
COMPLAINT - 29
I 1111111111111111 111111111111111 IIIII lllll 111111111111111 111111111111111111

US00D701273S
c12) United States Design Patent ( IO) Patent No.: US D701,273 S

Stewart (4 5) Date of Patent: ** Mar. 18, 2014
(54) TOY ANIMAL FOREJGN PATENT DOCUMENTS
(7 1) Applicant: Scentsy, Inc., Meridian, JD (US) WO 20 120 15832 A2 2/2012
OTHER PUBLICATIONS
(72) Inventor: Julianne Stewart, Kuna, ID (US)
Mary Meyer 1995 Catalog, p. 44, Lion.
(73) A ssignee: Scentsy, Inc., Meridian, ID (US)
Primary Examiner - Sandra Morris
(**) Term: 14 Years
(74) Allorney, Agent, or Firm - TraskBrin
(21) Appl. No.: 29/438,886
(22) Filed: Dec.4, 2012

(57) CLAfM
Re lated U.S. Application Data The ornamental design for a toy animal, as shown and
describe d.
(63) Co ntinuation of application No. 29/4 17,627, filed o n
Apr. S, 2012, now Pat. No. Des. 671,995, which is a
continuation of application No . 29/401 ,501 , filed o n
Sep. 12, 20 I I . now Pat. No. Des. 658,239, which is a DESCRIPTION
continuation of application No . 29/366,404, ftkd o n
Jul. 23, 2010, now Pat. No. Des. 651 ,260. FIG. I is a perspective view o f a first embodiment of a toy
(S I) LOC (10) C l. 21-01 animal, illustrated in a seated condition, showing my new
(52) U.S.CI. design;
FIG. 2 is a front view of the toy animal shown in FIG. 1;
USPC D2.l /600; D2 1/658
FIG. 3 is a rear view of the toy animal shown in FIG. J,
(58) Field of Classification Search
wherein a recess compartment located in the back of the
USPC D21 /576, 600, 604, 658- 661; D61598;
446/72, 97, 268- 269
animal is illustrated in a closed condition;
FIG. 4 is a first side view of the toy anima l shown in FIG. 1;
See application file for complete search history.
FIG. 5 is a second side view of the toy animal shown in FIG.
(56) References C ited 1;
FIG. 6 is a top view o f the toy animal shown in FIG. 1;
U.S. PATENT DOCUMENTS FIG. 7 is a bottom view of the toy animal shown in FIG. I ;
FJG. 8 is a rear view of the toy animal shown in FIG. J,
D 140,492 S 2/ 1945 Azrajcr wherein the recess compa rtment locawd in the back of the
D l66,05 1 S 21 1952 Secler animal is illustrated in an open condition; and,
1) 170,008 S 711953 Cooke
D260,413 S 8/ 1981 Hol stine FJG. 9 is a front view o f the toy animal shown in FJG. J,
1)287,742 S 111987 Bardwell el al. illustrated in a standing condition.
1)288,585 S 3/1987 Shaffer ct al. The broken line showing of tl1e head is for illustrative pur-
1)298,444 S 1111988 Alben poses only, and fonus no part of the claimed design.
D3 16,432 S 4/ 199 1 Stephenson et al.
(Continued) 1 C laim, 5 Drawing Sheets
COMPLAINT - 30
US D701,273 S
Page2
(56) Reference, C ited D534,224

1)542,364
S
S
. 12/2006
5/2007
Sulton .
Oren el al.
D21 /604
U.S. PATENT DOCUMENTS 1)651 ,260

1)654,966
S
S .. 12/20 11
2/2012
Stewart
Bmch .......................... 1)2 11600
1)325,408
5,507,678
D409,265
S
A
S . 4/ 1992
411996
511999
Williams
Chiang
Witkin ............. D21l600
1)654,967
1)658,239
D658,241
S
S
S . 2/20 12
4/2012
4/20 12
Bun:h
Stewart
1)211600
Ahrcndsen ................... D21 /658

D426,594
D466,168
6,848,967
S
S
B2
. 612000
I 112002
212005
C hae
Bmmell ....................... 1)211600
Kim
D67 1.995
2012/0028532
S
Al
12/20 12
2/20 12
Ste-wrut
Thompson ct al.
1)532.060 S 1112006 Boutin • cited by examiner
COMPLAINT - 31
U.S. Patent Mar. 18, 2014 Sheet 1 of 5 US D701,273 S
FIG. 1
FIG. 2
COMPLAINT - 32
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COMPLAINT - 35
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COMPLAINT - 36
Case 1:19-cv-00059-BLW Document 1-1 Filed 02/15/19 Page 1 of 2
AO 440 (Rev. 12/09) Summons in a Civil Action

for the
DISTRICT OF IDAHO
SCENTSY, INC., an Idaho corporation,

Plaintiff Civil Action No. _______________
v.
KELLYTOY WORLDWIDE, INC., a California
corporation, and KELLYTOY (USA), INC., a California
corporation,
Defendants
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address)
Kellytoy Worldwide, Inc., a California corporation

4811 S. Alameda Street
Los Angeles, CA 90058
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:
Ryan T. McFarland
SCENTSY, INC.
2701 E. Pine Ave.
P.O. Box 1335
Meridian, ID 83680
Telephone: 208.472.0800
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 THE COURT
Date:
Signature of Clerk or Deputy Clerk
AO 440 (Rev. 12/09) Summons in a Civil Action (Page 2)
Civil Action No.
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 $_______________.
I declare 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:

AO 440 (Rev. 12/09) Summons in a Civil Action

for the
DISTRICT OF IDAHO
SCENTSY, INC., an Idaho corporation,

Plaintiff Civil Action No. _______________
v.
KELLYTOY WORLDWIDE, INC., a California
corporation, and KELLYTOY (USA), INC., a California
corporation,
Defendants
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address)
Kellytoy (USA), Inc., a California corporation

4811 S. Alameda St.t
Vernon, CA 90058
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:
Ryan T. McFarland
SCENTSY, INC.
2701 E. Pine Ave.
P.O. Box 1335
Meridian, ID 83680
Telephone: 208.472.0800
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 THE COURT
Date:
Signature of Clerk or Deputy Clerk
AO 440 (Rev. 12/09) Summons in a Civil Action (Page 2)
Civil Action No.
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 $_______________.
I declare 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:

JS 44 ( Rev. 02119) CIVIL COVER SHEET
The J S 44 civil cover s heet and th e information contained herein neither replace n or s upplement the filing and serv ice o f pleadin~s or other papers as required by law, except as
provided by local rules of court. This form . approved b y the Judic ial Confere nce of the Un ited S tates in Septem ber 1974, is required for the use of the C lerk of Court for the
purpose of ini t iating the c ivil docket sheet. (SU: IN.\Tl/l/CTIONS ON NliX/' l 'rl0H 01: r 111s HJIIM )
I. (a) PLAI NTIFFS DEFEN DANTS

Scentsy, Inc., and Idaho Corporation Kellytoy Worldwide, Inc., a California corporation
Kellytoy (USA), Inc., a California corporation
(b) County o f Res idence of Firs t Lis ted Plaintiff County o f Residence of Firs t Listed De fendant
(HX< '/iPT IN ll.S. l'!JI/NTll·F CAS/iS) (IN I I.S. l'I.AINTU:F ( 'ASl :S ON!,)')
NOTE: IN LAND CONDEMNATION CASES. USE T HE LOCATION OF
TIIE TRACT O F LA ND INVOLVED.
(c) Anomcys (Firm Name, tl,ldre.vs. and Telephone Nrnnher) /\norncys (!f K11m,-,,J
Ryan T. McFarland
P.O. Box 1335, Meridian, Idaho 83680, 208.895. 1291
II. BASI S OF JURISDICTIO N 0•1acea11 ··:c 111 011eHox011!yJ III. CI T I ZENSH I P OF PR INCI PAL PA RT IES 0•1acea11 ·-x·· ,,, o ,,e11ox.fiirP!a1111,.ff
(For /Jn•erslly Ca.w.!.,· On!)~ and One Rox fi,r /Jefemlam)
0 I U.S. Go\'cmment 25 3 Federal Questi on PTF DEF PTF DEF
Plai111iIT (( I. S. Cim·ernmelll Nm a / 1ar1y) Citizen of This Slate O I O I Incorporated or Principal Place ~ 4 0 4
of Business In ll1is S1atc
0 U.S. Go,·cmmcnt 0 -4 Di\'crsity Citizen of ,\nothcr Stale 0 2 0 2 Incorporated and Principal Place 0 5 r!:f. 5
Defendant (/mltcale ( 'it1:t!11sl11p of l'ar//1.·s m /Jem Ill) of Business In Another S1:uc
C itizen or S ubjccl o f a 0 3 0 3 Fo reig n Nation 0 6 06

Forcil.!11 C'ountrv
IV NATURE' OF SU IT (/ /acc rm ".,'(" m One IJox On(v)
1
erICk 11crc r,or: Naturc o f S utt. Cd
0 C Descrmu o ns.
I CONTRACT TORTS FORFEIT URE/PENA LTV BANKRUPTCY OTHER STATUTRS I
0 I IO Insurancc PERSONAL INJURY PERSONA L INJURY 0 625 Dn,g Rcla1ed Seizure 0 422 Appeal 28 USC 158 0 375 False Claims Act
0 120 Marine 0 310 Airplane 0 365 Personal lnjnry - of Property 2 1 USC 881 0 423 Wit hdrawal 0 376 Qui Tam (3 1 USC
0 I30 Miller ,\ct 0 3 15 Airplane Product Product Liability 0 690 Other 28 USC 157 3729(a))
0 1-tO Negotiable lnstn11rn.:n1 Liability 0 367 Health Care/ 0 400 State Reapportionment
0 150 Reco\'cry o f Overpayme nt 0 320 Assault. Libel & Phan11accutical UUl"'I UL· u V 0 11-. ~I- j - ....
0 410 A n1i1ms1
& Enforcement o f Judgment Slander Person.11 Inj ury 0 820 Copyrights 0 430 Banks and Banking
0 151 Medicare Act 0 330 Federal Employers Product Liability 0 830 Patent 0 450 Commerce
0 152 Rccovc,y of Defaulted Liability 0 368 Asbestos Personal 0 835 Patent - Abbreviated 0 460 Deportation
Student Loans 0 340 Marine lnju,y Product New Drug Application 0 -170 Racketeer Influenced and
(Excludes Veterans) 0 3-15 Marine Producl Liabili1y ~ 840 Trademark Corrup1 O rga11i1..ations
0 153 Recovery of Overpayment Liability PERSONAL PROPERTY 1. AIUUl 1.: u · ■ A.. I c;_,J;'.rI JR ITV D -180 Consumer Credit
ofVc1i:ran's Benefits 0 350 Motor Vehicle 0 3 70 Other Fraud 0 7 10 Fair Labor Standards 0 861 I-II A(13950) 0 485 Telephone Consumer
0 160 Stockholders Suits 0 355 Motor Vehicle 0 37 1 Tn11h in Lending Acl 0 862 Black Lu ng (923) Protection Act
0 190 Other Coniract Produc1 Liability 0 380 Other Personal 0 720 Labor/M::111agc111cn1 0 863 DIIVC/DIIVIV (405(g)) 0 490 Cable/Sat TV
0 195 Coniract Product Liability 0 360 O ther Personal Property D::unagc Relations 0 864 SSID Title XV I 0 850 Securities/Commodities/
0 I 96 Franchise Injury 0 385 Pro perty Damage 0 740 Railway Labor Act 0 865 RSI (405(g)) Exchange
0 362 Personal lnjnry - Product Liability 0 75 1 Family and Medical 0 890 O1her Statutory Actions
Medical Malpractice Lca,·e Act 0 891 Agricultural Acts
I REAL PROPERTY C I VfL RI GHTS PRISONER PETIT IONS 0 790 Other Labor Litigation FEDERAL TAX SUITS 0 893 Enviromncntal 1\ilattcrs
0 210 Land Condcmnatio11 0 440 O ther Civi l Rights 11:lbcas C orpus: 0 79 I Employee Retirement 0 870 Taxes (U.S. PlaintifT 0 895 Freedom o f lnfonnation
0 220 Foreclosure 0 441 Voting 0 463 Alien Detainee Income Security Act or Defendant) Act
0 230 Rent Lease & Ejec1111e111 0 442 Emplo)snent D 5 10 Motions to Vacate 0 871 IRS- ·n, ird Party 0 896 Arbitration
0 240 Torts 10 Land 0 443 Housing/ S entence 26 USC 7609 0 899 Administrati ve Procedure
0 245 Tort Product Liability Accommodations 0 530 General Act/Review or Appeal of
0 290 All Other Real Property 0 445 A mer. w/Disubilities - 0 535 Death Penalty I MM IGRATION Agency Decision
Employmcn1 Other: 0 -1 62 Naturaliz.11io11 1-\ pplica1ion 0 950 Constit utionality of
0 446 A me r. w/Disabilitics - 0 540 Mandamus & Other 0 465 O ther lmmigrmion State St:Hulcs
01her 0 550 Civil Rights Actions
0 448 Education 0 555 Priso n Condition
0 560 Civil Detainee -
Condi1ions of
Conlincmcnt
V. 0 RIG IN (!'lace ,111 •-x" 111 ( )11e /lox Only )

~ I Original O 2 Removed from 0 J Remanded from 0 4 Reins lated or D 5 Trans ferred from 0 6 Multidistrict 0 8 Multidis1ric1
Proceeding State Court Appellate Court Reopened Another District Litigatio n - Litigatio n -
( ,pec,(y) Trans fer Direct File
Cite the U.S. Civil Statute under which you arc fil ing (/Jo 1101 dtffjuri.wlictimwl swtutcs 1111/ess dfrcrsily):
V I. CAUSE OF ACTION 1-1_5_U
_ ._S_.C
_.-"'-"§'-1_1_1_
6 _a_nd_ 1_12_1_;_;_1_
7 _U_.S_._
C_. "'--
10_1_;_;_2_8_U_.S_._C_. ""§"'--13_3_1_a_n_d_1_3_3_
8;'--a_n_d_2_8_U_._
S_.C_.-"'-""§_1_3_
32_ an_d_ 13_6_7_
Brief description of cau se:
Lanham Act, copyright, federal question, patents, trademarks, diversity of citizenship and supplemental jurisdiction.
V II. REQ UEST E D I N 0 C H EC K IF Tl IIS IS A CLASS ACTION DEMAND S C l JECK YES only if dem anded in c o mplaint :
COMPLAI NT: UNDER RULE 23. F . R .Cv. P . 75,000.00 JURY DEMAND: 0 Yes ~ No
------
V III. RELATED CASE(S)
I F AN y (.'ice 111.,in,cuons):
J U D GE DOC KET NUMBER
DATE F ATr0RNEY OF RECORD
FOR OFFICI: USE ONLY /~
RECEIPT # AMOUNT JUDGE MAG. JUDGE

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Case 1:19-cv-00059-BLW Document 1 Filed 02/15/19 Page 1 of 36

Ryan T. McFarland, !SB No. 7347

Attorney for Plaintiff

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

SCENTSY, INC., an Idaho Corporation,

Plaintiff Scentsy, Inc. (herein, "Scentsy"), pleads and alleges as fo llows:

1. Scentsy, Inc. ("Scentsy") is an Idaho corporation with its principal place of

business in Ada County, Idaho.

2. On information and belief, Defendant Kellytoy Worldwide, Inc. is a Californ ia

3. On information and belief, Defendant Kellytoy (USA), Inc. is a California

4. On information and belief, Defendants Kellytoy Worldwide, Inc. and Kellytoy

under the same ownership, operation, and control.

§§ 1332 (diversity of citizenship) and 1367 (supplemental jurisdiction).

6. This Court has personal jurisdiction over Defendants because Defendants, on

themselves of the laws and protection of the State of Idal10.

7. Venue is proper in this district under 28 U.S.C. § 139 l (b).

$88,000,000.00 worth of Scentsy Buddies throughout the world.

11 . Scentsy has registered a number of trademarks, design patents, and copyrights,

PN: US D651 ,260 Sl

12. Defendants has had actual or constructive knowledge of Scentsy' s intellectual

property in its Scentsy Buddies since at least 2011 .

13 . Notwithstanding Scentsy's established rights in the Scentsy Buddies and

Defendant's knowledge of Scentsy's rights, Defendants have been manufacturing, advertising,

including at the website located at www.kellytoy.com (hereinafter, " Defendant's Website").

Scentsy Buddies and the Infringing Toys, is attached hereto as Exhibit A.

15. On or about November 11 , 20 18, Scentsy discovered that Defendants were

Scentsy customer brought an Infringing Toy to Scentsy's attention.

17. Because of the wide-spread recognition, distinctiveness, and goodwill of the

affiliation, connection, or association of Defendants' products with Scentsy, and is a violation of

and dilution of the distinctive quality of the Mark.

19. Defendants' infringement of Scentsy's intellectual property rights in the Scentsy

Defendants are not enjoined from their wrongful acts.

A. FIRST CLAIM FOR RELIEF

2 1. Scentsy incorporates paragraphs 1 through 20 above as if set forth herein in full.

is attached hereto as Exhibit B.

24. In 2011, Scentsy registered its first Scentsy-Buddy-specific trademark,

3985480 are referred to herein as the "Buddy Marks."

identifier of the high-quality goods associated with Scentsy.

- is likely to cause confusion, mistake, or deception as to the origin, sponsorship or approval of

other confusion among consumers and potential consumers of Scentsy's goods.

30. Defendants' actions constitute trademark infringement in violation of 15 U.S.C.

goodwill and reputation of Scentsy.

constitute deliberate and intentional infringement, justifying an award of treble damages to

Scentsy, pursuant to 15 U.S.C. § 11 17, in an amount to be determined at trial.

B. SECOND CLAIM FOR RELIEF

minds of the consuming public.

the origin, sponsorship or approval of Defendants' goods.

37. Defendants' actions constitute common law trademark infringement.

goodwill and reputation of Scentsy.

C. THIRD CLAIM FOR RELIEF

Toys are authorized, sponsored or approved by Scentsy.

41. Defendants' actions as described herein constitute false designations of origin, in

violation of 15 U.S.C. §11 25(a).

goodwill and reputation of Scentsy.

constitute deliberate and intentional infringement, justifying an award of treble damages to

Scentsy, pursuant to 15 U.S.C. § 1117, in an an1ount to be detem1ined at trial.

D. FOURTH CLAIM FOR RELIEF

reference herein as if set forth in full.

above, copies of which are attached as Exhibits C and D ("Scentsy' s Patents").

and/or constructive notice of Scentsy's Patents pursuant to 35 U.S.C. § 287.

47. As the image comparisons shown in Exhibit A reveal, Defendants have

misappropriated Scentsy' s designs in the Infringing Toys.

Toys which embody the designs covered by Scentsy' s Patents .

the doctrine of equivalents, in violation of 35 U.S.C. §271.

to Scentsy, pursuant to 35 U.S.C. §284, in an amount to be determined at trial.

E. FIFTH CLAIM FOR RELIEF