ag findings v. bodega - complaint

7/28/2019 AG Findings v. Bodega - Complaint

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA

CASE NO.: _____________________________________

A.G. FINDINGS & MFG. CO., INC., d/b/aBALLISTIC CASE CO., a Florida corporation,

Plaintiff,

v.

BODEGA CORP. D/B/A CASE-OLOGY, aCalifornia corporation,

Defendants.______________________________________/

VERIFIED COMPLAINT FOR PATENTAND TRADE DRESS INFRINGEMENT

AND UNFAIR COMPETITION

JURY DEMAND

VERIFIED COMPLAINT

Plaintiff, A.G. FINDINGS & MFG. CO., INC., d/b/a BALLISTIC CASE CO., a Florida

corporation (hereinafter A.G. Findings), by and through its undersigned counsel, hereby

alleges in its Complaint against Defendant, BODEGA CORP. D/B/A CASE-OLOGY, a

California corporation (hereinafter Bodega), as follows:

JURISDICTION AND VENUE

1. This is an action for patent and trade dress infringement and unfair competition

arising under 35 U.S.C. 271(a) and the Lanham Act, 15 U.S.C. 1125(a)(1)(A).

2. This Court has jurisdiction over the subject matter of this action under 28 U.S.C.

1331 and 1338(a)-(b), and 15 U.S.C. 1121(a), and the laws of the State of Florida, including

violations of the State of Floridas unfair competition laws under the Deceptive and Unfair Trade

Practices Act, Fla. Stat. 501.201 to 501.213.

3. Venue is proper in this district under 28 U.S.C. 1391(b)(2) as a substantial part

of the events giving rise to the claims occurred in this District.

Case 0:13-cv-61559-RSR Document 1 Entered on FLSD Docket 07/19/2013 Page 1 of 10


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4. Defendant is subject to the specific personal jurisdiction of this Court under

Florida law, at least including Floridas long-arm statute. F.S. 48.193 (1)(b), (f)(1)-(2) and

Federal Rule of Civil Procedure 4.

THE PARTIES

5. A.G. Findings is a Florida corporation with its principal place of business in

Sunrise, Florida.

6. Bodega is a California corporation with its principal place of business at 20160

Paseo Del Prado, # F, Walnut, California 91789.

7. Upon information and belief, Bodega is in the business of importing, making,

selling, and offering to sell infringing mobile device cases in this District and throughout the

United States, including in online catalogs accessible throughout the State of Florida.

FACTUAL BACKGROUND

A.G. Findings

8. A.G. Findings is well-known in the United States for designing and

manufacturing creative and protective mobile device cases. Using state-of-the-art materials and

fashionable designs, A.G. Findings is recognized in the industry for providing superior quality

and stylish products.

9. A.G. Findings markets, offers for sale, and sells protective mobile device cases

under the trademarks BALLISTIC and SG . The SG cases feature a distinctive combination

of protective and aesthetic features that have made the SG cases popular amongst consumers

and retailers. Indeed, sales of the SG cases eclipsed twenty million dollars since their first sale

and the SG cases are sold by service providers, such as AT&T and SPRINT throughout the



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United States and in this District, as well as by major retailers, such as Sams Club. A.G.

Findings has further spent over one million dollars marketing its SG cases throughout the

United States.

10. The SG case is offered for several makes and models of cell phones including

Samsung, Motorola, Apple, Blackberry, among others. A screenshot of an Apple iPhone 4/4S

SG is shown in Exhibit A as an exemplary A.G. Findings SG case make and model.

11. Each of the SG cases include aesthetic, non-functional features that consumers

recognize as emanating from A.G. Findings, or its Florida registered fictitious name, Ballistic.

In particular, each SG case includes aesthetic features on its corners, back and side portions,

and further includes an aesthetic arrangement of alternating lower durometer material with

higher durometer material, that make the overall appearance of the SG cases, regardless of the

make and model, recognizable by the consumers.

12. Owing to its distinctive aesthetic features, its substantial sales, and the vast

expenditure of advertising by A.G. Findings, the SG case has acquired secondary meaning with

consumers seeking to purchase a protective and stylish cell phone case, and who recognize the

aesthetic features and overall appearance of the SG case as emanating from Ballistic.

Accordingly, A.G. Findings has unregistered trade dress rights to its SG case.

13. A.G. Findings is the owner by assignment of U.S. Design Patent No. D682,260

issued on May 14, 2013 entitled MOBILE DEVICE CASE (the 260 Patent). Exhibit B. The

260 Patent is in full force and effect. The sole claim of the 260 Patent is directed toward a

mobile device case as shown in the drawings of the 260 Patent.



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Bodega

14. Bodega is a retailer of accessories for cellular telephones and other mobile

electronic devices Bodega sells its products throughout the United States and throughout the

world at least through its website at http://www.case-ology.com and through its eBay store

Case-ology.

15. Bodega is importing, marketing, offering for sale, and selling, mobile device

cases to consumers in this District under the brand name Dual Layer Diamond Studs Combo

Case, which cases are confusingly similar to the SG cases, and which cases are marketed and

sold to the same consumers that A.G. Findings sells its SG cases to. In particular, Bodega is

selling and/or offering for sale mobile device cases for many different models of Apple,

Samsung, Blackberry, and other makers mobile devices that incorporate the source identifying

non-functional features of the corresponding A.G. Findings SG case. Indeed, Bodegas

website offers for sale dozens of different cases in different colors that are each substantially

identical in appearance to A.G. Findings SG

cases. For example, a back view of a Dual

Layer Diamond Studs Combo Case brand protective case for the Nokia Lumia is shown in

Exhibit C. The Bodega case shown in Exhibit C is confusingly similar to the A.G. Findings

SG case shown in Exhibit B.

16. The Bodega case shown in Exhibit C embodies the patented design of the mobile

device case shown in the 260 Patent or is a colorable imitation thereof.

17. On June 8, 2012 undersigned counsel for A.G. Findings sent Bodega a cease and

desist letter demanding that Bodega, among other things, cease the importation and sale of



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Bodega counterfeit SG cases. Composite Exhibit E. The Bodega case shown in Exhibit D is

virtually identical to the A.G. Findings SG case shown in Exhibit B.

18. On November 15, 2012, undersigned counsel sent another cease and desist letter

to Bodega when Bodega changed the back of the case shown in Exhibit D to the present diamond

studded incarnation shown in Exhibit C. Composite Exhibit E. Despite Bodegas apparent

attempts to design around A.G. Findings trade dress, the diamond studded version of the

Bodega case shown in Exhibit C is confusingly similar to A.G. Findings trade dress. Thus,

undersigned counsel demanded that Bodega cease and desist from selling the case shown in

Exhibit C.

19. On April 5, 2013, undersigned counsel again sent Bodega a cease and desist letter

as a follow-up to its June 8, 2012 and November 15, 2012 letters vis--vis A.G. Findings SG

cases and the continued sales of the cases shown in Exhibit C. Composite Exhibit E. No response

to any of undersigned counsels letters was received from Bodega.

20. Bodega has willfully continued to offer for sale and sell counterfeit SG cases

since at least July 5, 2012.

COUNT I INFRINGEMENT OF UNITED STATESDESIGN PATENT NO. D682,260

(FLA. STAT. 35 U.S.C. 271)

21. A.G. Findings incorporates paragraphs 1- 20 from above.

22. Defendant has been and still is directly infringing the 260 patent by, upon

information and belief, importing, making, selling, offering for sale and using certain mobile

device cases that incorporate the invention disclosed in the 260 Patent, including, without

limitation, the mobile device cases shown in Exhibit C attached hereto.



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23. Defendants conduct has caused, and, if not enjoined, will continue to cause,

irreparable harm and damage to the rights of A.G. Findings in its business, reputation, and

goodwill.

COUNT II TRADE DRESS INFRINGEMENT15 U.S.C. 1125(a)

24. A.G. Findings incorporates paragraphs 1- 20 from above.

25. Defendants mobile device cases incorporate the non-functional aesthetic features

of A.G. Findings SG cases that have acquired secondary meaning in the marketplace.

26. Defendants offering for sale and/or sale the mobile device cases identified above

is likely to cause confusion, mistake, or to deceive as to the affiliation, connection, or association

of defendants with A.G. Findings, or as to the origin, sponsorship, or approval of defendants

mobile device cases by A.G. Findings.

27. Defendants conduct has caused, and, if not enjoined, will continue to cause,

irreparable harm and damage to the rights of A.G. Findings in its business, reputation, and

goodwill.

COUNT III FLORIDA DECEPTIVE AND UNFAIR TRADE PRACTICES ACT(FLA. STAT. 501.201 TO 501.213)

28. A.G. Findings incorporates paragraphs 1-20 from above.

29. Defendants actions constitute unfair methods of competition and unfair or

deceptive acts or practices in the conduct of trade or commerce in violation of Florida Statute

501.204.



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30. Defendant willfully used or practiced these unlawful acts under 501.204, and

knew or should have known that its acts were unlawful and would damage A.G. Findings and

injure consumers deceptively.

31. A.G. Findings has been damaged directly and proximately by defendants

unlawful actions.

32. A.G. Findings is entitled to recover actual damages, plus reasonable attorneys

fees and costs for defendants violation of the Florida Deceptive and Unfair Trade Practices Act.

JURY DEMAND

33. A.G. Findings requests trial by a jury for all issues so triable.



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PRAYER FOR RELIEF

A.G. Findings requests the Court:

A. Pursuant to 35 U.S.C. 285 and/or Ch. 501, Florida Statutes, award A.G. Findings

actual damages, attorneys fees and court costs.

B. Pursuant to 35 U.S.C. 283 and/or 15 U.S.C. 1116(a), enjoin the importation and

sale of any and all of defendants products that are infringements of A.G. Findings

design patent and/or are likely to cause confusion in the marketplace with A.G.

Findings products;

C. Pursuant to 35 U.S.C. 284 and/or 289 and/or 15 U.S.C. 1117(a), order

defendants to pay to A.G. Findings any profits realized from the sale of any infringing

products, any damages sustained by A.G. Findings, and the cost of this action;

D. Pursuant to 15 U.S.C. 1118, order defendants to deliver to A.G. Findings for

destruction, all labels, signs, prints, packages, wrappers, receptacles, and

advertisements in the possession of defendants bearing the trade dress subject of the

violation, or any reproduction, counterfeit, copy, or colorable imitation thereof, and

all plates, molds, matrices, and other means of making the same; and

E. Award A.G. Findings such other and further relief as the Court deems just and proper.



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Case 0:13-cv-61559-RSR Document 1-1 Entered on FLSD Docket 07/19/2013 Page 1 of 2


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AO 440 (Rev. 06/12) Summons in a Civil Action

U NITED STATES DISTRICT COURTfor the

__________ District of __________

)

)))))))))))

Plaintiff(s)

v. Civil Action No.

Defendant(s)

SUMMONS IN A CIVIL ACTION

To: (Defendants name and address)

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 plaintiffs 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


Southern District of Florida

A.G. FINDINGS & MFG. CO., INC., d/b/a

BALLISTIC CASE CO., a Florida corporation

BODEGA CORP. D/B/A CASE-OLOGY, a Californiacorporation

Bodega Corp d/b/a Case-Ology20160 Paseo Del Prado, # FWalnut, CA 91789

Christopher & Weisberg, P.A.200 East Las Olas BoulevardSuite 2040Fort Lauderdale, FL 33301


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AO 440 (Rev. 06/12) 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 individuals 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 individuals 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 under penalty of perjury that this information is true.

Date:Servers signature

Printed name and title

Servers address

Additional information regarding attempted service, etc:


0.00

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EXHIBIT A



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EXHIBIT C



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Home | Shop By Device | Pink Trim Triple Impact Hard Case For APPLE iPhone 5

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Quick Overview

Give your new phone the protection it deserves with this new heavy duty

case! This case protects against scratches and scuffs, and allows you to add

some style to your phone while still having total access to all buttons and

controls.

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PRODUCT DESCRIPTION

The Triple Impact case offers slick looking protection for your phone. The case features 2 layers of protection. The main part of the

case is made out of silicone gel that covers the entire phone. The 2nd layer is a hard plastic shell t hat covers the back and sides of

the silicone gel as shown in the pictures. Your phone remains fully functional while in the case with access to all the phones

features. If you need heavy duty protection look no further, protect your device with a Triple Impact case.

ADDITIONAL INFORMATION

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Materials Polycarbonate And Silicone Combo

Made For APPLE iPhone 5

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Page 1 of 1Pink Trim Triple Impact Hard Case For APPLE iPhone 5 - Shop By Device

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ag findings v. bodega - complaint

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