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IN THE UNITED STATES DISTRICT COURT
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FOR THE WESTERN DISTRICT OF WASHINGTON
6 AT SEATTLE
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KHEPER GAMES, INC., Civil Action No.: 2:20-cv-281
8
a Washington corporation,
9 COMPLAINT FOR PATENT
Plaintiff, INFRINGEMENT
10
v.
11 DEMAND FOR JURY TRIAL
12 TRUE FABRICATIONS, INC.,
d/b/a True Brands,
13 a Washington corporation,
14 Defendant.
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16 Plaintiff, Kheper Games, Inc. (“Plaintiff’ or “Kheper Games”), for its Complaint against
17 Defendant True Fabrications, Inc., d/b/a True Brands (“Defendant” or “True Fabrications”),
18 hereby alleges as follows:
19 NATURE OF ACTION
20 1. This is a civil action for the infringement of United States Design Patent No.
21 D768,031 (“the ’031 Patent”) under the Patent Laws of the United States, 35 U.S.C. § 100 et seq.
22 2. True Fabrications has willfully infringed and continues to willfully infringe the
23 ’031 Patent.
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1 THE PARTIES
2 3. Plaintiff Kheper Games, Inc. is a Washington corporation having its principal
3 place of business at 440 S. Holgate St, Seattle, WA 98134, United States.
4 4. Upon information and belief, Defendant True Fabrications, Inc., d/b/a True
5 Brands, is a Washington corporation having its principal place of business at 1055 N. 38th St.,
6 Seattle, WA 98103, United States.
7 JURISDICTION AND VENUE
8 5. This Court has subject matter jurisdiction over the action pursuant to 28 U.S.C. §§
9 1331 and 1338(a) because the action involves questions of federal patent law.
10 6. This Court has personal jurisdiction over Defendant True Fabrications because,
11 upon information and belief, True Fabrications resides in this District, True Fabrications
12 regularly conducts business in this District and elsewhere in Washington, and/or True
13 Fabrications has committed acts of infringement of the ’031 Patent in this District and elsewhere
14 in Washington.
15 7. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391 and 1400(b)
16 because, upon information and belief, Defendant True Fabrications resides in this District and/or
17 Defendant True Fabrications has committed acts of infringement in this District and has a regular
18 and established place of business in this District.
19 THE PATENT-IN-SUIT
20 8. The U.S. Patent and Trademark Office duly and legally issued the ’031 Patent,
21 entitled “Faceted Sphere,” on October 4, 2016. A true and correct copy of the ’031 Patent is
22 attached hereto as Exhibit A. A representative figure from the ’031 Patent is reproduced below:
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7 9. The ’031 Patent is valid, enforceable and currently in full force and effect.
8 10. Kheper Games owns all rights, title and interest in and to the ’031 Patent.
9 FACTUAL BACKGROUND
10 11. Kheper Games was originally founded in Seattle in 1995 as Kheper Publishing
11 and became Kheper Games in 2000.
12 12. Initially, Kheper Games focused solely on publishing game books. However, as
13 its business and customer base grew, Kheper Games expanded its offerings to include a wide
14 variety of games and other novelty products. Kheper Games sells its games and other novelty
15 products to customers in over 100 countries around the world.
16 13. Among the novelty products sold by Kheper Games are barware, party products
17 and romance products.
18 14. Upon information and belief, True Fabrications was formed in or about 2005.
19 15. True Fabrications offers for sale a variety of drinkware, barware, and related
20 products. Upon information and belief, these products are offered for sale to customers in
21 Washington and throughout the United States through True Fabrications’ website at
22 www.truebrands.com and are also sold and distributed by True Fabrications to third-party
23 retailers in Washington and elsewhere in the United States.
24 16. Among the drinkware products offered for sale and sold by True Fabrications are
25 its line of disco ball tumblers, including without limitation the “Silver Disco Ball Drink
26 Tumbler,” the “Radiance Ombre Disco Tumbler,” the “Rainbow Disco Ball Tumbler,” and the
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1 “Red White and Blue Disco Ball Tumbler” (collectively, “Disco Ball Tumblers”). Examples of
2 these products are depicted below:
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22 17. Upon information and belief, True Fabrications offers for sale and sells the Disco
23 Ball Tumblers in this District and elsewhere in Washington and the United States. For example,
24 upon information and belief, consumers located in this District may purchase the Disco Ball
25 Tumblers directly from True Fabrications’ website at www.truebrands.com. Upon information
26 and belief, True Fabrications also sells and distributes the Disco Ball Tumblers to retailers
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1 located in this District, including, for example, Total Wine & More and Francesca’s Collections,
2 for resale. Examples of True Fabrications’ Disco Ball Tumblers that were purchased at such
3 stores within this District, and that each include a label stating that the product was “[d]istributed
4 by True Brands,” are depicted below.
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24 18. The design applied to each of True Fabrications’ Disco Ball Tumblers in the eyes
25 of an ordinary observer embodies and/or is a colorable imitation of Kheper Games’ “faceted
26 sphere” design claimed in the ’031 Patent.
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1 19. Upon information and belief, True Fabrications willfully and without
2 authorization copied the claimed design from the ’031 Patent to apply it to its Disco Ball
3 Tumblers.
4 20. Upon information and belief, True Fabrications’ business model involves copying
5 or integrating the designs and/or features of other successful products in the marketplace into
6 True Fabrications’ own products. For example, in an article entitled “The Best Corkscrew for
7 Opening Wine,” which was published on thewirecutter.com on June 29, 2017, the author praises
8 the design of a corkscrew offered by True Fabrications but also notes that the corkscrew is a
9 “knockoff” of another company’s design, which the author further notes is “the corkscrew that
10 most experts recommend.” See http://www.thewirecutter.com/reviews/the-best-corkscrew, last
11 accessed February 24, 2020.
12 FIRST CLAIM FOR RELIEF:
13 PATENT INFRINGEMENT (35 U.S.C. § 271)
14 21. Kheper Games realleges and incorporates by reference the allegations of
15 paragraphs 1-20 of this Complaint as though fully set forth herein.
16 22. Upon information and belief, True Fabrications had actual and constructive notice
17 of Kheper Games’ rights respecting the ’031 Patent.
18 23. Upon information and belief, in violation of 35 U.S.C. § 271, True Fabrications is
19 and has been infringing the ornamental design claimed by the ‘031 Patent by making, using,
20 selling, and/or offering to sell in the United States, and/or importing into the United States,
21 without authorization or consent from Kheper Games, products to which the design claimed in
22 the ‘031 patent or a colorable imitation thereof has been applied, including without limitation
23 True Fabrications’ Disco Ball Tumblers shown above.
24 24. True Fabrications infringes the ’031 Patent because, inter alia, in the eye of an
25 ordinary observer, giving such attention as a purchaser usually gives, the design of the ’031
26 Patent and the design of True Fabrications’ products, including without limitation the Disco Ball
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1 Tumblers, are substantially the same, the resemblance being such as to deceive such an ordinary
2 observer, inducing him to purchase one supposing it to be the other.
3 25. True Fabrications’ acts of infringement of the ’031 Patent were undertaken
4 without authority, permission or license from Kheper Games, in violation of 35 U.S.C. § 271.
5 26. True Fabrications’ infringement has damaged and injured and continues to
6 damage and injure Kheper Games. The injury to Kheper Games is irreparable and will continue
7 unless and until True Fabrications is enjoined from further infringement.
8 27. Kheper Games is entitled to a complete accounting of all revenue and profits
9 derived by True Fabrications from the unlawful conduct alleged herein, including without
10 limitation, True Fabrications’ total profits pursuant to 35 U.S.C. § 289.
11 28. True Fabrications has engaged and is engaged in willful, intentional, and
12 deliberate infringement of the ’031 Patent. True Fabrications knew or should have known that
13 making, using, offering to sell, selling and/or importing products to which the design claimed in
14 the ’031 Patent or a colorable imitation thereof has been applied, including the Disco Ball
15 Tumblers, would directly infringe the ’031 Patent, yet True Fabrications infringed and continues
16 to infringe the ’031 Patent. Such willful and deliberate infringement justifies an increase of three
17 times the damages to be assessed pursuant to 35 U.S.C. § 284.
18 29. Kheper Games is entitled to a permanent injunction preventing True Fabrications
19 from further infringing the ’031 Patent.
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1 concert with them, and their parents, subsidiaries, divisions, successors and assigns, from further
2 acts of infringement of the ’031 Patent;
3 3. An award of all damages necessary to compensate Plaintiff for Defendant’s
4 infringement of the ’031 Patent;
5 4. An award of the amount of Defendant’s total profit pursuant to 35 U.S.C. § 289;
6 5. An award of enhanced treble damages pursuant to 35 U.S.C. § 284 for
7 Defendant’s willful infringements;
8 6. A declaration that this case is exceptional under 35 U.S.C. § 285, and that
9 Plaintiff be awarded reasonable attorneys’ fees and costs;
10 7. Pre-judgment and post-judgment interest;
11 8. Such other and further relief as this Court deems just and proper.
12
19 /s/Marc C. Levy
Marc C. Levy, WSBA No. 19203
20
/s/Thomas A. Shewmake
21 Thomas A. Shewmake, WSBA No. 50765
701 Fifth Ave., Suite 5400
22
Seattle, WA 98104
23 Telephone: 206-622-4900
Facsimile: 206-682-6031
24 MarcL@seedip.com
TomShewmake@seedip.com
25
EXHIBIT A
Case 2:20-cv-00281 Document 1-1 Filed 02/24/20 Page 2 of 5
USOOD768031S
US D768,031 S
Page 2
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Case 2:20-cv-00281 Document 1-1 Filed 02/24/20 Page 5 of 5
FIG. 4 FIG. 5
FIG. 6 FIG. 7
Case 2:20-cv-00281 Document 1-2 Filed 02/24/20 Page 1 of 2
(Place an X in One Box Only) (Place an X in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
and
(Indicate Citizenship of Parties in Item III)
(specify)
(Do not cite jurisdictional statutes unless diversity)
(See instructions):
Case 2:20-cv-00281 Document 1-2 Filed 02/24/20 Page 2 of 2
Case 2:20-cv-00281 Document 1-3 Filed 02/24/20 Page 1 of 2
)
)
)
)
Plaintiff(s) )
)
v. Civil Action No.
)
)
)
)
)
Defendant(s) )
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:
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
Case 2:20-cv-00281 Document 1-3 Filed 02/24/20 Page 2 of 2
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
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
Other (specify):
.
Date:
Server’s signature
Server’s address
In Compliance with 35 U.S.C. § 290 and/or 15 U.S.C. § 1116 you are hereby advised that a court action has been
filed in the U.S. District Court on the following
Trademarks or Patents. ( the patent action involves 35 U.S.C. § 292.):
PLAINTIFF DEFENDANT
In the above—entitled case, the following patent(s)/ trademark(s) have been included:
DATE INCLUDED INCLUDED BY
Amendment Answer Cross Bill Other Pleading
PATENT OR DATE OF PATENT
HOLDER OF PATENT OR TRADEMARK
TRADEMARK NO. OR TRADEMARK
1
In the above—entitled case, the following decision has been rendered or judgement issued:
DECISION/JUDGEMENT
Copy 1—Upon initiation of action, mail this copy to Director Copy 3—Upon termination of action, mail this copy to Director
Copy 2—Upon filing document adding patent(s), mail this copy to Director Copy 4—Case file copy