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MANATT, PHELPS &
PHILLIPS, LLP AT T OR NE YS AT LAW
LOS A NG EL ES
COMPLAINT FOR COPYRIGHT AND
PATENT INFRINGEMENT
Yasser M. E -Gama State Bar No. 189,047)[email protected] A. Kertell (State Bar No. 181,214)[email protected], PHELPS & PHILLIPS, LLP695 Town Center Drive, 14
th Floor
Costa Mesa, CA 92626Telephone: (714) 371-2500Facsimile: (714) 338-2771
Ehab M. Samuel (State Bar No. 228,296) [email protected], PHELPS & PHILLIPS, LLP11355 W. Olympic Blvd.Los Angeles, CA 90064Telephone: (310) 312-4000Facsimile: (310) 312-4224
Attorneys for Plaintiff
Incipio Technologies, Inc.
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION
Inc p o Tec no og es, Inc., a Ca orn aCorporation,
Plaintiff,
vs.
Aplars, LLC, a Minnesota LimitedLiability Company, and Does 1-10,inclusive,
Defendants.
Case No. 8:15-cv-00277
COMPLAINT FOR:(1) COPYRIGHT INFRINGEMENTPURSUANT TO 17 U.S.C. § 101 ETSEQ; AND
(2) PATENT INFRINGEMENTPURSUANT TO 35 U.S.C. § 271 ETSEQ.
Plaintiff Incipio Technologies, Inc. (“Incipio”), brings this action
against Defendants Aplars, LLC (“Aplars”) and Does 1-10 for injunctive relief and
damages under the copyright and patent laws of the United States as follows.
//
Case 8:15-cv-00277 Document 1 Filed 02/17/15 Page 1 of 7 Page ID #:1
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MANATT, PHELPS &
PHILLIPS, LLP AT T OR NE YS AT LAW
LOS A NG EL ES 2
COMPLAINT FOR COPYRIGHT AND
PATENT INFRINGEMENT
SUMMARY OF ACTION
1.
Incipio owns the copyright in the sculptural ornamentation
affixed to, and a patent in the design of, the protective case for a cellular telephone.
Defendants have, without Incipio’s consent, copied that patented design and
copyrighted sculptural ornamentation in protective cases for cellular telephones
they are selling throughout the United States, including in the Central District of
California. Defendants’ actions violate Incipio’s copyright and patent rights, and
Incipio seeks an injunction to stop Defendants from engaging in this wrongful
conduct and monetary damages for the harm its actions have caused.
PARTIES
2.
Plaintiff Incipio is a corporation organized under the laws of the
state of California, which has its principal place of business at 6001 Oak Canyon,
Irvine, CA 92618, in the Central District of California. Incipio is an award winning
designer of mobile device accessories and technologies that are sold in tens of
thousands of retail locations worldwide. Over the last 15 years, Incipio has grown
from a small one-man shop in Southern California to an industry leader with
hundreds of employees that are focused on providing innovative and beautifullydesigned and built products.
3. Defendant Aplars is a limited liability company organized under
the laws of the state of Minnesota and which has its principal place of business at
2885 County Dr. Suite #175, Little Canada, MN 55117, but which does business
throughout the United States, including in the Central District of California.
4.
Defendants Does 1 through 10, inclusive, are sued herein under
fictitious names because their true names and capacities are unknown at this time.
Incipio is informed and believes that they do business in the Central District of
California. This complaint will be amended appropriately when their true names
and capacities are ascertained.
Case 8:15-cv-00277 Document 1 Filed 02/17/15 Page 2 of 7 Page ID #:2
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MANATT, PHELPS &
PHILLIPS, LLP AT T OR NE YS AT LAW
LOS A NG EL ES 3
COMPLAINT FOR COPYRIGHT AND
PATENT INFRINGEMENT
5. Upon information and belief, Incipio alleges that each of such
fictitiously named Defendants is responsible in some manner for the occurrences
alleged herein.
6.
Aplars and Does 1-10, inclusive, are hereafter referred to
collectively as “Defendants.”
7.
Defendants, and each of them, are individuals and businesses
who, upon information and belief, are acting in concert and active participation
with each other in committing the wrongful acts alleged herein.
JURISDICTION AND VENUE
8. This is a civil action arising out of the copyright and patent laws
of the United States. This court has federal jurisdiction over this action pursuant to
17 U.S.C. § 501, 28 U.S.C. § 1331-1332 and 28 U.S.C. §1338(a), and 35 U.S.C.
§§ 271 and 281. Venue is proper in this district under 28 U.S.C. §§ 1391 and
1400.
GENERAL BACKGROUND
9. Incipio designs and sells, inter alia, protective cases for cellular
telephones. In 2012 Incipio created and designed a protective case for a cellulartelephone that bears original and distinctive sculptural ornamentation. Incipio
applied for, and was granted, a copyright registration for its sculptural design
associated with its protective case. True copies of that Copyright Registration No.
VA 1-834-876, and images of the copyrighted sculptural design so registered, are
attached as Exhibit A. The effective date of Copyright Registration No. VA 1-834-
876 is October 23, 2012.
10. In September 2012, Incipio also applied for, and was granted, a
design patent for its protective case. A true copy of that Design Patent No. US
D717,778 S is attached as Exhibit B.
11.
Incipio has provided notice of its patent rights pursuant to 35
U.S.C. § 287.
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MANATT, PHELPS &
PHILLIPS, LLP AT T OR NE YS AT LAW
LOS A NG EL ES 4
COMPLAINT FOR COPYRIGHT AND
PATENT INFRINGEMENT
DEFENDANTS’ UNLAWFUL CONDUCT
12.
In about January 2015, Incipio discovered that Defendants have
been and are selling throughout the United States, including in the Central District
of California, protective cases for cellular telephones that copy the patented design
and copyrighted sculptural ornamentation used on Incipio’s protective cases for
cellular telephones. True copies of exemplars of Defendants’ cases are attached as
Exhibit C. Defendants’ cases infringe Incipio’s intellectual property rights in
Copyright Registration No. VA 1-834-876 and Design Patent No. US D717,778 S.
13.
Incipio has never granted Defendants any rights to copy or use
Incipio’s copyrighted sculptural ornamentation or patented design in connection
with protective cases for cellular telephones, or at all.
14. Incipio has demanded that Defendants cease and desist their
infringing conduct and have repeatedly asked for an accounting of infringing sales.
Defendants have not complied with Incipio’s demands, and continue to infringe its
rights as described above and below.
15.
Defendants’ conduct constitutes copyright and patent
infringement and causes Incipio to suffer irreparable injuries as described aboveand below, including injury to the value of its copyrighted work and patented
design, for which it has no adequate remedy at law.
CLAIM FOR RELIEF(Copyright Infringement)
16.
Incipio realleges and incorporates by reference each and every
allegation set forth in Paragraphs 1 through 15 above.
17.
By reason of the foregoing, Incipio asserts a claim against
Defendants for injunctive and monetary relief, including actual damages,
Defendants profits, and/or statutory damages, together with costs and attorneys’
fees pursuant to 17 U.S.C. § 502-505 for Defendants’ infringement of its copyright.
//
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MANATT, PHELPS &
PHILLIPS, LLP AT T OR NE YS AT LAW
LOS A NG EL ES 5
COMPLAINT FOR COPYRIGHT AND
PATENT INFRINGEMENT
CLAIM FOR RELIEF(Patent Infringement)
18. Incipio realleges and incorporates by reference each and every
allegation set forth in Paragraphs 1 through 15 above.
19. Defendants have infringed and are still infringing Incipio’s
Design Patent No. US D717,778 S by importing, selling, offering for sale, and
possibly also making and using protective cases for cellular telephones that embody
Incipio’s patented design, and Defendants will continue to do so unless enjoined by
this Court.
20. Incipio has given Defendants written notice of the infringement.
Defendants’ acts constitute willful and intentional infringement, undertaken with
reckless disregard for Incipio’s patent rights.
21.
As a direct and proximate result of Defendants’ patent
infringement, Defendants have derived and received gains, profits, and advantages
in an amount not presently known to Incipio. Further, Defendants’ actions have
caused Incipio to suffer great and irreparable injury, for which it has no adequate
remedy at law.22. By reason of the foregoing, Incipio is entitled to its actual
damages for Defendants’ infringing acts and treble damages, together with interest
and costs as fixed by the Court pursuant to 35 U.S.C. § 284, to Defendants’ total
profits from the sale of products that infringe Incipio’s patent rights pursuant to 25
U.S.C. § 289, and to its reasonable attorneys’ fees and costs incurred in bringing
this claim pursuant to 35 U.S.C. § 285.
//
//
//
//
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MANATT, PHELPS &
PHILLIPS, LLP AT T OR NE YS AT LAW
LOS A NG EL ES 6
COMPLAINT FOR COPYRIGHT AND
PATENT INFRINGEMENT
PRAYER
Incipio requests judgment in its favor and against Defendants as
follows:
A. Adjudging Defendants to have willfully infringed Incipio’s
Copyright Registration No. VA 1-834-876 and Design Patent No. US D717,778 S;
B.
Preliminarily and permanently enjoining Defendants and all
those in active concert or participation with them from infringing or assisting any
other person or entity in infringing Incipio’s rights in its copyrighted work and
patented design as set forth herein;
C. Preliminarily and permanently enjoining Defendants and all
persons acting in active concert or participation with them from using, duplicating,
manufacturing, adapting, modifying, changing, distributing, selling, reselling,
reproducing, colorably imitating or copying, or otherwise using protective cases for
cellular telephones that embody Incipio’s copyrighted sculptural ornamentation or
patented invention, or any work or design substantially similar thereto;
D.
Awarding Incipio, at its election, either actual damages and
Defendants’ profits or statutory damages against Defendants, jointly and severally,for said Defendants’ acts of copyright infringement pursuant to 17 U.S.C. §§ 504
and 505;
E.
Ordering Defendants and all persons in active participation with
them to turn over to Plaintiff for destruction all infringing works in their possession,
custody or control pursuant to 17 U.S.C. § 503;
F.
Awarding Incipio for Defendant’s acts of patent infringement all
of Incipio’s actual damages, treble damages, together with interest and costs as
fixed by the Court, Defendants’ total profits from the sale of products that infringe
Incipio’s patent rights, and Incipio’s attorneys’fees and costs incurred in bringing
this claim pursuant to 35 U.S.C. §§ 284, 285 and 289;
G.
Awarding Incipio its allowable costs; and
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MANATT, PHELPS &
PHILLIPS, LLP AT T OR NE YS AT LAW
LOS A NG EL ES 7
COMPLAINT FOR COPYRIGHT AND
PATENT INFRINGEMENT
H. Awarding Incipio such other and further relief as the court
deems just and proper.
Dated: February 17, 2015 Respectfully submitted by:
MANATT, PHELPS & PHILLIPS, LLP
By:Yasser M. El-GamalAttorneys for PlaintiffIncipio Technologies, Inc.
314044011.1
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EXHIBIT A
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EXHIBIT B
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EXHIBIT C
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