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COMPLAINT
Plaintiff Constructive Eating, Inc. (“Constructive Eating”) has spent years developing
creative, unique products that help children develop fine motor skills, build independence, stay
engaged at the table, and make mealtime more enjoyable for children and their families.
Constructive Eating has invested substantial time, effort and expense protecting its products with
intellectual property, and building source-identifying goodwill in the design of its products.
Defendant introduced close replicas to Plaintiff’s construction eating utensils, thus infringing
Plaintiff’s design patents, copyrights and trade dress rights in its products, and competing
unfairly with Plaintiff. Plaintiff seeks to stop Defendant from taking and misusing its intellectual
property.
THE PARTIES
1. Constructive Eating, Inc., is a corporation organized under the laws of the state of
Michigan with its principal place of business at 525 Avis Dr #16, Ann Arbor, MI 48108, Ann
organized under the laws of the country of Canada, province of Ontario, with its principal place
of business at RPO Sheppard Plaza, Suite 524, Toronto, Ontario, M3H 6A7.
for copyright infringement under 17 U.S.C. § 501 et seq., and for trade dress infringement and
unfair competition under the Lanham Act 15 U.S.C. § 1125(a), and common law unfair
competition. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331, 1332, 1338(a),
and 1367.
4. The Court has personal jurisdiction over Defendant because Defendant has
committed acts of infringement in this District, directly and/or through a third party, by offering
for sale, selling and shipping the accused construction-themed products within and into this
judicial district. Defendant engaged in tortious conduct directed to harm residents of this District
and has purposefully directed its activities to the State and this District and/or purposefully
5. Venue is proper in this District under 28 U.S.C. § 1391(b) because Defendant has
committed acts of infringement in this District, directly and/or through a third party, by offering
for sale, selling and shipping the accused construction-themed products within and into this
judicial district, and is subject to personal jurisdiction in this District. Defendant engaged in
tortious conduct directed to harm residents of this District and has purposefully directed its
activities to the State and this District and/or purposefully availed itself of this District.
Additionally, venue is proper because Constructive Eating’s principal place of business is in this
district, and Constructive Eating has suffered and is suffering harm in this District.
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GENERAL ALLEGATIONS
Background on Constructive Eating
6. Plaintiff Constructive Eating was founded in 2006 by two parents who sought to
make mealtime more enjoyable for their children. Constructive Eating prioritized designing,
developing and manufacturing its own distinctive products that could be sold through a network
founders first designed, developed and manufactured a set of three construction-themed eating
utensils with distinctive, eye-catching designs that were immediately successful in the market
(sometimes referred to as “Construction Utensils”). The set included a front-loader utensil with
a spoon head on one end (“Front Loader Utensil”), a bulldozer utensil with a pusher (“Bulldozer
Utensil”) and a forklift with fork tines on one end (“Forklift Utensil”).
differentiate its products where the construction vehicle is integrated not only into the handle, but
also into the food manipulating portion of the utensil. The construction vehicle carefully morphs
into and is integrated with the food manipulating portion as if the food manipulating portion is
part of the construction vehicle, thus making the user experience more original, life-like and fun.
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Children animate their play with Constructive Eating’s Construction Utensils because of these
9. Constructive Eating also chose bright, colorful designs with a two-tone alternating
color scheme to make their Construction Utensils distinctive and attractive to customers, both
from the point of purchase and at the table. Constructive Eating also elected to make its
Construction Utensils with two different materials, thus providing the appearance of different
10. Constructive Eating invested substantial time and resources to design and develop
its Construction Utensils, and to ensure that its Construction Utensils are safe, reliable and
appropriate for use by children with food. These investments have totaled hundreds of thousands
11. Constructive Eating protected its innovative, novel and distinctive designs by
12. Constructive Eating obtained U.S. Patent No. D554,440 (the “’440 Patent)
entitled “Spoon With Integrated Construction Machine” to protect the proprietary, ornamental
design in its Loader Utensil. Constructive Eating owns by assignment the entire right, title and
interest in and to the ’440 patent. A true and correct copy of the ’440 Patent is attached to this
Complaint as Exhibit A.
13. Constructive Eating obtained U.S. Patent No. D554,441 (the “’441 Patent)
entitled “Pusher With Integrated Construction Machine” to protect the proprietary, ornamental
design in its Bulldozer Utensil. Constructive Eating owns by assignment the entire right, title
and interest in and to the ’441 patent. A true and correct copy of the ’441 Patent is attached to
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14. Constructive Eating also protected its innovative, novel and distinct designs by
obtaining copyright registrations covering the copyrighted design of its Construction Utensils.
15. Constructive Eating obtained U.S. Copyright Registration No. VA 1-704-404 (the
“404 Copyright”) entitled “Constructive Eating Front Loader Spoon” to protect the original,
proprietary design in its Front Loader Utensil. Constructive Eating owns by assignment the
entire right, title and interest in and to the ’404 Copyright. A true and correct copy of the ’404
Copyright is attached to this Complaint as Exhibit C. An image of the source material submitted
16. Constructive Eating obtained U.S. Copyright Registration No. VA 1-704-223 (the
“’223 Copyright”) entitled “Constructive Eating Bull Dozer Pusher” to protect the original,
proprietary design in its Bulldozer Utensil. Constructive Eating owns by assignment the entire
right, title and interest in and to the ’223 Copyright. A true and correct copy of the ’223
Copyright is attached to this Complaint as Exhibit D. An image of the source material submitted
17. Starting with the launch of its Construction Utensils, Constructive Eating has
enjoyed considerable commercial success with its distinctive designs differentiating Constructive
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Eating’s construction utensils from other competitor’s utensils, and by being associated with
18. Since introducing the design of its construction utensils in 2007, Constructive
Eating has sold more than 500,000 sets of construction utensils, and nearly a million separate
19. Also since 2007, Constructive Eating has spent hundreds of thousands of dollars
marketing and promoting the distinctive design of its Construction Utensils. Constructive Eating
regularly displays its products, emphasizing the unique, distinctive, source-designating design
features, in electronic and print advertising, and at well-known trade shows all across the country
attended by nearly all competitors, toy companies and distributors in the industry, including but
not limited to the Toy Fair, Gourmet Catalogue Marketplace, International Housewares Show,
Learning Express Convention, ASTRA Marketplace, ToyFest West, and Gift Shows in Dallas,
Atlanta, Chicago, Minneapolis, New York, Seattle, Los Angeles and Las Vegas.
20. Constructive Eating has a wide network of distribution, making the distinctive
design of its Construction Utensils well-known by distributors, stores and on-line retailers across
the country. Since introduction into the market, Constructive Eating’s construction utensils have
been ordered and carried by over 3000 stores all over the United States, with hundreds of stores
spanning the entire country carrying the construction utensils in 2018 and 2019.
Construction Utensils have achieved numerous awards and national recognition. Constructive
Eating’s construction utensils won the Preferred Choice Award from Creative Child Magazine in
2009; the Family Choice Award in 2009; the Best Vacation Product from Dr. Toy in 2010; the
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Sterling Fun Award from Tillywig Toy in 2010; the Award of Excellence, Seal of Approval and
to Watch by the Edward Lowe Foundation in 2013 and the Indie Award Winner-Washtenaw
televised shows such as “The Little Couple” on TLC with children using Constructive Eating’s
Construction Utensils, and in the highly popular and large-grossing movie “Grown Ups 2”
starring Adam Sandler and Salma Hayek with their children in the movie using Constructive
24. The success of Constructive Eating’s unique and distinctive construction utensil
designs can be seen in the on-line marketplace. On Amazon, Constructive Eating’s Construction
Utensils have accumulated over 490 customer reviews with a 4.7/5.0 start rating, and a 4.6/5.0
star rating with over 500 customer reviews when sold with Constructive Eating’s construction
plate. On Uncommon Goods, Constructive Eating’s construction utensils and construction plate
have received a 4.7/5.0 star rating with over 1200 reviews. On The Grommet, Constructive
Eating’s construction utensils and construction plate have received a 4.8/5.0 star rating with 90
reviews.
25. On social media, Constructive Eating has over 11,000 Instagram followers, over
2,500 Facebook followers and over 380 followers on Twitter. Just the viral Constructive Eating
Facebook posts featuring its construction utensils in 2017 collectively generated nearly 25
million views, with over 40,000 “likes”, over 50,000 comments and over 150,000 “shares.”
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goodwill in being the sole source for the distinctive trade dress product design of its construction
utensils, which have not changed in any substantial way since their launch in 2007.
27. As a result, Constructive Eating has protectable product design trade dress rights
in the overall look and appearance of its Construction Utensils, including but not limited to the
overall combination of the non-functional design aspects such design, style, appearance, visual
connection and visual flow of the handle portion to the construction vehicle portion to the food
manipulating portion; the design, appearance, placement and location of the construction-themed
vehicle on the utensil; the shape, angle and extension of the handle out of the back end of the
construction vehicle; the integration of the construction vehicle with the food manipulating
portion without interfering with the design of the construction vehicle; the overall shape,
proportions, widths, heights, size and dimensions of the utensils; the two-tone color scheme with
a yellow base and black accents and features; the yellow handle with black overlay; the
distinctive projection for the exhaust pipe in the rear portion of the construction vehicle; the
general shape and configuration of the Front Loader Utensil construction vehicle with heightened
cab and trapezoidal profile; the black wheels with yellow circular centers on the Front Loader
Utensil; general shape and configuration of the Bulldozer Utensil construction vehicle, including
a higher tread back portion that converges to a lower front tread portion; the black bulldozer
treads framing an oblong yellow rounded trapezoidal shaped interior on the Bulldozer Utensil;
formed steps in the sides of the construction vehicle leading up to the cab; the shape, relative
dimensions and color of the front and side windows in the cab; the use of two different materials
to create a look of different textures on different portions of the utensil; and a taper from the
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construction utensils, the ’440 and ’441 Patents, the ’404 and ’223 Copyrights and Constructive
Eating’s source-identifying product trade dress, Defendant Masontops introduced and started
proprietary construction utensil designs, including a front loader utensil and a bulldozer utensil.
29. Masontops offered its construction-themed utensils not only on the website
30. When a user search for Constructive Eating on Amazon returns Constructive
under “Sponsored products related to this item” or “What other items do customers busy after
viewing this item.” The only other items with a construction theme that appear pursuant to the
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same search on Amazon are shown below (the second and fourth images). The second and
fourth construction-themed utensils pictured below look nothing like the Constructive Eating
(third image).
31. Even when seen in their blister packaging, with Defendant’s construction-themed
utensils sold as a set with a construction plate (the “Dinneractive 3-Piece Construction Themed
directly with Constructive Eating’s proprietary Construction Line. Defendant markets and sells
Eating sent a letter on December 14, 2018 placing Defendant on notice of Constructive Eating’s
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’440 and ’441 Patents, ’404 and ’223 Copyrights and Constructive Eating’s source-identifying
product trade dress, and demanding that Defendant cease and desist from making, using, selling
or offering to sell its construction-themed products in the U.S. Defendant declined, but instead
continues to knowingly use, sell and offer for sale its construction-themed utensils in violation of
Constructive Eating’s design patent, copyright and trade dress rights, and to unfairly compete
COUNT I
INFRINGEMENT OF ’440 PATENT
34. Constructive Eating repeats each and every allegation of the preceding paragraphs
infringe the claim of the ’440 Patent by making, using, selling, or offering for sale within the
United States, or importing into the United States, its construction–themed utensil that is covered
by the claim of the ’440 Patent and sold as part of the Dinneractive 3-Piece Construction Themed
Meal Set.
36. A side-by-side comparison of the claimed design of ’440 Patent and Masontops’
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37. An ordinary observer, giving such attention as a purchaser usually gives, would
find the non-functional aspects of the design of the front loader utensil in the ’440 Patent to be
substantially the same such as to deceive and induce the ordinary observer to purchase the
Masontops’ front loader utensil and 3-Piece Construction Themed Meal Set, supposing it to be
Constructive Eating’s patented design. Side-by-side comparisons of the other figures of the ’440
Patent with Defendant’s front loader utensil reveal the same substantial similarity.
has been, is being, and, unless such acts and practices are enjoined by the Court, will continue to
be injured in its business and property rights, and has suffered, is suffering, and will continue to
suffer injury and damages for which it is entitled to relief under 35 U.S.C. § 284 and § 289
adequate to compensate for such infringement, including Defendant’s profits, lost profits, but in
Constructive Eating irreparable harm, for which there is no adequate remedy at law. Unless and
until enjoined by this Court, Defendant will continue to infringe the ’440 Patent. Under 35
40. Constructive Eating has complied with the statutory requirement of placing notice
of the ’440 Patent on the front loader utensils it manufactures and sells that are covered by the
’440 Patent, and has thus provided Defendant not only with actual notice, but also with
41. Additionally, Defendant has known that its activities concerning its front loader
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42. Defendant has committed infringement willfully and intentionally despite having
notice of the ’440 Patent, thus entitling Constructive Eating to treble damages for Defendant’s
COUNT II
INFRINGEMENT OF THE ’441 PATENT
43. Constructive Eating repeats each and every allegation of the preceding paragraphs
infringe the claim of the ’441 Patent by making, using, selling, or offering for sale within the
United States, or importing into the United States, a construction –themed utensil that is covered
by the claim of the ’441 Patent, including but not limited to the bulldozer utensil sold as part of
45. A side-by-side comparison of the claimed design of ’441 Patent and Masontops’
46. An ordinary observer, giving such attention as a purchaser usually gives, would
find the non-functional aspects of the design of the bulldozer utensil in the ’441 Patent to be
substantially the same such as to deceive and induce the ordinary observer to purchase the
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Masontops’ bulldozer utensil and 3-Piece Construction Themed Meal Set, supposing it to be
Constructive Eating’s patented design. Side-by-side comparisons of the other figures of the ’441
Patent with Defendant’s front loader utensil reveal the same substantial similarity.
has been, is being, and, unless such acts and practices are enjoined by the Court, will continue to
be injured in its business and property rights, and has suffered, is suffering, and will continue to
suffer injury and damages for which it is entitled to relief under 35 U.S.C. § 284 and § 289
adequate to compensate for such infringement, including Defendant’s profits, lost profits, but in
Constructive Eating irreparable harm, for which there is no adequate remedy at law. Unless and
until enjoined by this Court, Defendant will continue to infringe the ’441 Patent. Under 35
49. Constructive Eating has complied with the statutory requirement of placing notice
of the ’441 Patent on the bulldozer utensils it manufactures and sells that are covered by the ’441
Patent, and has thus provided Defendant not only with actual notice, but with constructive notice
50. Defendant has known that its activities concerning its bulldozer utensil infringe
51. Defendant has committed infringement willfully and intentionally despite having
notice of the ’441 Patent, thus entitling Constructive Eating to treble damages for Defendant’s
COUNT III
COPYRIGHT INFRINGEMENT
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52. Constructive Eating repeats each and every allegation of the preceding paragraphs
53. Constructive Eating is the owner of U.S. Copyright Registration Nos. VA 1-704-
404 entitled “Front Loader Spoon” (Ex. C) and VA 1-704-223 entitled “Bulldozer Pusher” (Ex.
54. Both copyright registrations cover sculptural works. Constructive Eating’s Front
Loader Utensil and Bulldozer Utensil (“Constructive Eating Copyrighted Works”) were provided
Eating’s Copyrighted Works have been sold since 2007, thus providing Defendant with access to
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of its construction-themed utensils on the Dinneractive website, Amazon and in other advertising
materials, and offering for sale, selling and distributing to the public its construction-themed
Copyrights, Defendant has profited in amounts to be determined in the course of this action.
Copyrighted Works, Plaintiff has been deprived of sales in amounts to be determined in the
61. Plaintiff is likely to suffer further injury and irreparable harm if Defendant is not
enhanced statutory damages, in an amount appropriate to punish Defendants and deter others
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COUNT IV
VIOLATION OF THE LANHAM ACT –
TRADE DRESS INFRINGEMENT AND UNFAIR COMPETITION
64. Constructive Eating repeats each and every allegation of the preceding paragraphs
65. Constructive Eating has developed and owns the protectable product design trade
dress rights in the overall look and appearance of its Construction Utensils.
66. In violation of 15 U.S.C. § 1125(a), Defendant Masontops is offering for sale and
selling its competing construction-themed utensils in the U.S. that infringe Plaintiff’s trade dress
rights in its Construction Utensils (“Constructive Eating Trade Dress”), and competing unfairly
with Plaintiff by offering for sale and selling in the U.S. its competing construction-themed
67. Defendant’s construction–themed utensils are using the Constructive Eating Trade
Dress in commerce, including but not limited to the overall look and appearance of Plaintiff’s
Construction Utensils, including but not limited to the overall combination of the non-functional
design aspects such as design, style, appearance, visual connection and visual flow of the handle
portion to the construction vehicle portion to the food manipulating portion; the design,
appearance, placement and location of the construction-themed vehicle on the utensil; the overall
shape, proportions, widths, heights, size and dimensions of the utensils; the shape, angle and
extension of the handle out of the construction vehicle; the integration of the construction vehicle
with the food manipulating portion without interfering with the design of the construction
vehicle; the two-tone color scheme with a yellow base and black accents and features; a yellow
handle with black overlay; the distinctive projection for the exhaust pipe; general shape and
configuration of the Front Loader Utensil construction vehicle with heightened cab and
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trapezoidal profile; the black wheels with yellow circular centers on the Front Loader Utensil;
general shape and configuration of the Bulldozer Utensil construction vehicle, including a higher
back portion that converges to a lower front portion; the black bulldozer treads framing an
oblong yellow rounded trapezoidal shaped interior on the Bulldozer Utensil; formed steps in the
sides of the construction vehicle leading up to the cab; the shape, relative dimensions and color
of the front and side windows in the cab; the use of two different materials to create a look of
different textures on different portions of the utensil; and a taper from the proximal end of the
features that are not essential to the use or purpose of the article. Rather, Constructive Eating’s
Trade Dress design is an arbitrary combination of features not necessary for the products to
work.
69. Constructive Eating’s Trade Dress in its Construction Utensils has acquired
valuable goodwill and secondary meaning as in the minds of the purchasing public, Plaintiff’s
Trade Dress construction utensil designs are associated with, designate and identify Plaintiff as
70. Upon information and belief, Defendant’s use of Constructive Eating’s Trade Dress
71. Defendant’s use of the Constructive Eating Trade Dress is likely to cause confusion,
products.
72. On information and belief, Defendant’s use of Constructive Eating’s Trade Dress has
caused confusion, caused mistake and deceived the public as to the source of Defendant’s
construction-themed products.
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Eating’s Trade Dress with the intent to gain a competitive advantage over Constructive Eating
and gain market share away from Constructive in the market for children’s eating and
dinnerware.
74. As a result of the confusion, mistake, and deception caused by Defendant’s use of
Constructive Eating’s Trade Dress, Defendant has profited in amounts to be determined in the
75. Also as a result of the confusion, mistake, and deception caused by Defendant’s
use of Constructive Eating’s Trade Dress, Plaintiff has been deprived of sales and profits in
76. Constructive Eating is likely to suffer further injury and irreparable harm, for
which there is no adequate remedy at law, if Defendant is not enjoined from using Constructive
77. Defendants’ use of Constructive Eating’s Trade Dress was, and is, willful,
fraudulent and malicious. Plaintiffs are therefore entitled to an award of exemplary, enhanced, or
punitive damages in an amount appropriate to punish Defendants and deter others from engaging
in similar misconduct.
COUNT V
COMMON LAW UNFAIR COMPETITION
78. Constructive Eating repeats each and every allegation of the preceding paragraphs
79. Defendant has competed unfairly with Plaintiff, and continues to compete unfairly
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in its Construction Utensils by making, selling, offering for sale and/or importing Defendant’s
construction-themed products.
Eating’s product design and the Constructive Eating Trade Dress to identify Defendant’s
81. On information and belief, Defendant has taken the above actions in order to
deceive members of the relevant purchasing public, confuse consumers as to the source of
Defendant’s construction-themed products, and create the false impression that Constructive
82. This false designation of origin is likely to cause confusion, or to cause mistake,
83. On information and belief, this false designation of origin has caused confusion,
has caused mistake, and has deceived as to the affiliation, connection, or association of
84. On information and belief, Defendant carried out these acts with the intent to gain
a competitive advantage over Constructive Eating and compete unfairly against Constructive
85. On information and belief, and as a result of the confusion, mistake, and
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unfair competition.
87. Also as a result of the confusion, mistake, and deception caused by Defendant’s
above actions, Plaintiff has been deprived of sales in amounts to be determined in the course of
this action.
competitive injury resulting from Defendant’s unfair competition, which damages include at
89. Plaintiffs are likely to suffer further injury and irreparable harm if Defendant is
90. On information and belief, Defendant’s above actions were, and are, willful,
fraudulent, and malicious. Plaintiffs are therefore entitled to an award of exemplary, enhanced,
or punitive damages in an amount appropriate to punish Defendant and deter others from
COUNT VI
VIOLATION OF THE MICHIGAN CONSUMER PROTECTION ACT (Mich. Comp.
Laws § 445.901 et seq.)
91. Constructive Eating repeats each and every allegation of the preceding paragraphs
92. Defendant has violated, and is violating, the Michigan Consumer Protection Act
by engaging in unfair and deceptive methods, acts, and practices in the conduct of trade or
commerce.
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93. Defendant’s unfair and deceptive methods, acts, and practices include, but are not
limited to, using confusingly similar derivations of Constructive Eating’s proprietary designs in
94. Defendant’s unfair and deceptive methods, acts, and practices have the effects of
Plaintiff.
95. Constructive Eating has been damaged by Defendant’s unfair and deceptive
methods, acts, and practices, and are likely to suffer further injury and irreparable harm if
Defendant is not enjoined from further such methods, acts, and practices.
JURY DEMAND
Constructive Eating demands a jury trial as to all issues that are triable by a jury in this
action.
(a) Finding Defendant is liable for infringement of the ’440 and ’441 Patents, as
alleged herein;
(b) Enjoining and restraining Defendant and its parents, subsidiaries, affiliates,
successors, predecessors, assigns, and the officers, directors, agents, servants and employees of
each of the foregoing, and those persons acting in concert or participation with any of them, from
continued infringement, including but not limited to making, using, selling, or offering for sale
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within the United States, or importing into the United States, any products or services that
(c) Awarding all damages adequate to compensate Constructive Eating for the
infringement that has occurred, pursuant to 35 U.S.C. § 284 and § 289, including Defendant’s
profits and/or Plantiff’s lost profits, but in no event less than a reasonable royalty, plus
(d) Awarding treble damages for willful infringement pursuant to 35 U.S.C. § 284;
(e) Declaring this case exceptional case within the meaning of 35 U.S.C. § 285 and
that Constructive Eating be awarded attorney’s fees, costs, and expenses incurred in connection
(f) Finding Defendant liable for infringement of the Constructive Eating Copyrights,
alleged herein;
(g) Enjoining and restraining Defendant and its parents, subsidiaries, affiliates,
successors, predecessors, assigns, and the officers, directors, agents, servants and employees of
each of the foregoing, and those persons acting in concert or participation with any of them, from
utensils on the Dinneractive website, Amazon and in other advertising materials, and offering for
sale, selling and distributing to the public its constructive themed utensils in the United States
(h) Awarding Plaintiff compensatory damages and those profits of Defendants that
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(l) Enjoining and restraining Defendant and its parents, subsidiaries, affiliates,
successors, predecessors, assigns, and the officers, directors, agents, servants and employees of
each of the foregoing, and those persons acting in concert or participation with any of them, from
continued trade dress infringement and unfair competition, including but not limited to
website, Amazon and in other advertising materials, and offering for sale, selling and distributing
to the public its constructive themed utensils in the United States that infringe Constructive
control, that include the Constructive Eating Copyrights or Trade Dress, or any other materials
Copyrights or Trade Dress, or any other designations derived from or confusingly similar
thereto, from any website in Defendants’ control, including but not limited to the Dinneractive
website;
compensate Constructive Eating for Defendant’s misrepresentations, false advertising and unfair
competition;
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(q) Awarding Plaintiff treble damages for Defendant’s willful trade dress
(r) That this case be declared an exceptional case within the meaning of 15 U.S.C.
§ 1117 and that Plaintiff be awarded attorney’s fees, costs, and expenses incurred in connection
of the Michigan Consumer Protection Act, and any trebling or enhanced damages and attorney’s
(u) Directing Defendant to pay all costs incurred by Plaintiff related to this action;
and
(v) An award of any further relief that this Court deems just and proper.
Respectfully submitted,
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EXHIBIT A
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EXHIBIT B
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EXHIBIT C
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EXHIBIT D
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