HiGear Design v. Amazon - Complaint

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

Andrew D. Skale (SBN 211096)[email protected] L. Wagner (SBN 243594)[email protected] LEVIN COHN FERRIS GLOVSKY AND POPEO PC3580 Carmel Mountain Road, Suite 300San Diego, CA 92130Telephone: (858) 314-1500Facsimile: (858) 314-1501

Attorneys for PlaintiffHIGEAR DESIGN, INC.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

HIGEAR DESIGN, INC.,

Plaintiff,

v.

AMAZON.COM, INC.,

Defendant.

Case No.

PLAINTIFF HIGEAR DESIGN,INC’S COMPLAINT FOR DESIGNPATENT AND UTILITY PATENTINFRINGEMENT, ANDTRADEMARK INFRINGEMENT

JURY DEMANDED

Plaintiff HIGEAR DESIGN, INC. for its Complaint against Defendant

AMAZON.COM, alleges and states as follows:

THE PARTIES

1. Plaintiff HiGear Design, Inc. (“HiGear”) is a corporation organized and

existing under the laws of the State of California with its principal place of business

in Mill Valley, California and a mailing address of P.O. Box 1113, Mill Valley, CA

94942.

2. Defendant AMAZON.COM, INC. (“Amazon”) is a corporation

organized and existing, on information and belief, under the laws of the State of

Delaware, with its principal place of business at, on information and belief, 410 Terry

Avenue, Seattle, WA 98109.

'16CV1110 JLBLAB

Case 3:16-cv-01110-LAB-JLB Document 1 Filed 05/09/16 of 14

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

JURISDICTION AND VENUE

3. This is a civil action for patent infringement arising under the Patent

Laws of the United States, 35 U.S.C. §§ 1 et seq. This is also a trademark action

arising under 15 U.S.C. § 1114 et seq. Subject matter jurisdiction is therefore proper

under 28 U.S.C. §§ 1331 and 1338(a), as well as 15 U.S.C. § 1121(a).

4. This Court has personal jurisdiction over Amazon because Amazon has

extensive minimum contacts with the State of California such that the exercise of

jurisdiction does not offend traditional notions of fair play and substantial justice.

Amazon has purposefully availed itself of the benefits of the California forum, and

has continued selling products infringing HiGear’s patents and trademarks despite

clear notice and knowledge that the continued sales would harm the California

company’s intellectual property rights and competing line of products practicing the

inventions. On information and belief:

a. Amazon has fulfillment centers in California employing nearly

5,000 employees, and reports it has over 10,000 employees statewide.

Its sales in California are so extensive that the online sales tax effective

September 15, 2012 was referred to as the “Amazon” tax, and generates

hundreds of millions of dollars in sales tax revenue for California from

Amazon each year for sales fulfilled to California residents; and

b. That tax is itself the result of a compromise between Amazon and

California legislators whereby Amazon agreed to pour $500 million into

its California operations, provide 10,000 full-time jobs in California, and

25,000 more seasonal jobs.

5. This Court further has subject matter jurisdiction over the claims and

causes of action asserted in this complaint pursuant to 28 U.S.C. § 1332(a) because

this dispute is between citizens of complete diversity, including a California company

with its principle place of business in California, and a Delaware company with its

principle place of business in Washington, and the amount in controversy exceeds


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

$75,000, exclusive of interest and costs.

6. Venue is proper in this judicial district under 28 U.S.C. sections 1391(b)

and (c) and 1400(b) because a substantial part of the events or omissions giving rise

to the claims occurred in the district; Plaintiff resides in this district; and the

Defendant resides in this district by virtue of being subject to personal jurisdiction in

this judicial district by, among others, its repeated availment and direction of its

activity toward this district, and selling infringing goods into this judicial district.

FACTUAL BACKGROUND

7. Through heavy investment and hard work, HiGear designed a unique

and highly useful type of travel pillow. The design is so aesthetically pleasing and

distinctive that HiGear pursued and obtained a design patent to protect against others

who may wish to sell what an ordinary observer would view as the same product. A

copy of HiGear’s U.S. Design Patent, US D599,150, is attached to this Complaint as

EXHIBIT 1 (“the ’150 Patent”).

8. The advances utilized by the portable support pillow were such a novel

invention that HiGear was also awarded a utility patent for its invention, U.S. Patent

No. US 7,758,125 (“the ’125 Patent”). A copy of the ’125 Patent is attached as

EXHIBIT 2.

9. HiGear has been marketing and selling its unique HiGear travel pillows

since at least as early as March 14, 2008, and has gained significant market

recognition. The brand such products are sold under was awarded two U.S.

trademark registrations, to provide the broadest possible protection against

infringement and counterfeiting. This includes U.S. Reg. No. 3,544,788 for the

TRAVELREST word mark in Class 10 for “air pillows for medical purposes,” a true

and correct copy of which is attached as EXHIBIT 3 and incorporated herein by

reference. This also includes U.S. Reg. No. 4,482,893 for the TRAVELREST word

mark plus design in Class 10 for “air pillows for medical purposes,” a true and correct

copy of which is attached as EXHIBIT 4 and incorporated herein by reference.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

10. TRAVELREST products regularly appear in Amazon’s various lists of

#1 selling products.

11. Unfortunately, in the midst of this success, HiGear discovered that a

number of online sellers had begun selling infringing travel pillows through

Amazon’s online store located at www.Amazon.com. In an effort to enforce its

patent and trademark rights, HiGear has patiently gone through Amazon’s

infringement reporting platforms, including the repugnant procedure of paying

dozens of counterfeiters for one of their infringing products.

12. In the past 2 years alone, Amazon has listed approximately 30 known

infringing products with separate ASINs (Amazon’s unique product number assigned

to each product, which Amazon also uses to group together different purchase options

for consumers interested in that particular product). Those ASINs, along with the

Seller Nickname and Order Date are listed in EXHIBIT 5 hereto (“Accused

Products”). Many of these sellers list their counterfeit products under ASINs

assigned to genuine TRAVELREST travel pillows (for example, iResource’s ASIN

B014KN94G8).

13. Exemplative copies of the notices of infringement provided to Amazon

for the Accused Products are attached as EXHIBIT 6. These counterfeit pillows use

the same stock copyrighted pictures as HiGear, for which the copyright belongs to

HiGear. They also use the same or modified versions of HiGear’s travel pillow

instruction manuals, for which HiGear holds all copyright rights. The marketing and

promotional material included with these counterfeit pillows even employs the

TRAVELREST word and design marks for which HiGear enjoys two federally

registered trademarks. Examples of this blatant counterfeiting are shown in

EXHIBIT 6.

14. A fundamental flaw with Amazon’s design, is that it is not adequate to

protect against repeat infringement by fundamentally the same seller in a timely and

efficient fashion, resulting in Amazon making substantial infringing sales at any


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5

given time. Amazon has been notified of these repeat offenders.

15. Infringers simply serially create new seller accounts or ASINs and put

the exact same products up for sale again. This includes, for example,

DiamondMindMarketing, Amazon Warehouse Deals, Inc., and Xue Wen Wa. See

EXHIBIT 5.

16. Amazon does not remove these infringing sellers, ban them from selling

travel pillows, or employ other measures to eliminate such serial infringing sales –

instead, it continues to fulfill orders for these infringing products. And Amazon often

will not remove the listing for the infringing product without a required purchase of

the product being made by the IP owner, even when Amazon fulfills the orders for

the product from its own warehouses.

17. The net result is that an infringing travel pillow is almost always

available for purchase on Amazon, with Amazon and the infringing seller generating

revenue based on sales of these counterfeit travel pillow – revenue that rightfully

belongs to HiGear.

18. The result goes beyond just supplanting an authorized sales when a

counterfeit sale is provided. The damage spreads to other consumers through

negative customer reviews from the consumers buying these knockoffs. For

example, on March 31, 2016 a “1 star” review was posted for a TRAVELREST

pillow ASIN on Amazon, stating the following regarding a recent counterfeit

“TRAVELREST” pillow from Xue Wen Ya: “Cheaply made junk arrived damaged

from China. No response from seller XUE to rectify problem. Unfortunately I

suggested the product to many other folks before getting this junk.” This negative

review then discourages others reviewing it from purchasing authentic patented

TRAVELREST pillows. The disappointed customer is also not providing the word

of mouth they would otherwise provide if they had received a satisfactory non-

counterfeit pillow. Even further, many consumers do not pay attention to the reasons

for specific negative reviews, but are instead deterred or discouraged from purchase


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

simply by the presence of low star ratings, given the competitive marketplace where

perception is power.

19. The infringers have exploited Amazon’s policy, and Amazon has not

adapted to the changing marketplace so as to avoid vicarious, contributory and

indirect infringement. For example, on information and belief, Amazon employs no

IP address match process for repeat violators. Instead, Amazon makes substantial

sales of infringing goods, while appearing to address infringement.

20. Despite repeated demands to Amazon to take action to stop this

counterfeiting scheme perfected on its online store, nothing has changed.

21. Amazon is acting as a retailer and dealer in the infringing products.

22. Amazon is directly liable for the infringing offers for sale, including

counterfeit sales using ASINs created for genuine TRAVELREST pillows, as well as

their own ASINs. Amazon is liable directly regardless of whether the individual

partners of Amazon are also liable. Amazon has offered no response as to why the

Accused Products are not infringing, and the continued deliberate indifference in

continuing to allow these Accused Products on its online store by the same seller

using what, on information and belief, is the same IP address, makes Amazon’s

infringements willful.

23. Accordingly, to protect HiGear’ valuable patents and trademarks from

online exploitation, HiGear brings this suit.

FIRST CLAIM FOR RELIEF

PATENT INFRINGEMENT OF U.S. PATENT NO. D599,150

24. HiGear realleges all allegations in this Complaint as if stated herein.

25. On September 1, 2009, United States Patent Number D599,150 entitled

“Portable Support Pillow,” was duly and legally issued to HiGear, who has the right

to enforce this patent.

26. Defendant has sold or exposed for sale articles of manufacturer to which

the ’150 Patent applies.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7

27. Defendant has infringed and continues to infringe the ’150 Patent by

using, selling, offering for sale, importing, and/or actively inducing others to use

products that infringe one or more of the patented design(s) in the ’150 Patent, and is

thus liable for patent infringement pursuant to 35 U.S.C. §§ 271 and 289 et seq. The

Accused Products so resemble the ’150 Patent, including Claim 1, that in the eye of

an ordinary observer, giving such attention as a purchaser usually gives, the visual

appearance of the two designs are substantially the same.

28. Defendant is also liable for patent infringement because it actively

induced these sellers on its online site to continue selling the Accused Products even

after Amazon unequivocally knew of the ’150 Patent, having received multiple

notices of infringement from HiGear. Amazon acted in a manner that encouraged

these sellers to infringe on the ’150 Patent. Amazon has even purported to open,

inspect and repackage such items. See EXHIBIT 6.

29. Specifically, although Amazon maintains the power under its Conditions

of Use to remove whatever products it wishes to from its online store, and revoke

user rights, has a detailed infringement notice program to accomplish that removal,

and indeed removes products continuously on this basis, it continues to allow

infringing products to be easily redirected and sold on its online store and, on

information and belief, generates substantial profits from those sales.

30. Amazon knew that if it did not remove the Accused Products, and use

the information available to it about the sellers to stop reposting of the infringing

products, the natural and likely consequence was their continued sale on its online

store. Amazon intended for sales of these Accused Products to continue on its online

store. Amazon knew or should have known that those acts would cause the sellers to

continue infringing the ’150 Patent, Amazon having received multiple and detailed

notices of the infringement.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8

31. Defendant’s infringement of the ’150 Patent has caused and continues to

cause damage to HiGear in an amount to be determined at trial but exceeding

$75,000.

32. Defendant’s infringement of the ’150 Patent has caused and will

continue to cause immediate and irreparable harm to HiGear for which there is no

adequate remedy at law, unless this Court enjoins and restrains such activities. This

includes the harm from Amazon’s failure to remove negative consumer reviews of

knockoff products purporting to review genuine patented TRAVELREST pillows,

despite demand to do so; Amazon should be ordered to remove such misleading

reviews.

33. Defendant knew of the ’150 Patent prior to the filing of this lawsuit.

34. Defendant’s infringement of the ’150 Patent was willful and deliberate,

was objectively reckless due to the high likelihood that its actions constituted

infringement of a valid patent, and knew or should have known of this objectively-

defined risk because the risk was so obvious. Thus, HiGear is entitled to enhanced

damages pursuant to 35 U.S.C. § 284, and costs incurred prosecuting this action.

35. Plaintiff is further entitled to the total profit on the Accused Products

pursuant to, inter alia, 35 USC § 289.

SECOND CLAIM FOR RELIEF

PATENT INFRINGEMENT OF U.S. PATENT NO. 7,758,125


37. On July 20, 2010, United States Patent Number 7,758,125 entitled

“Portable Support Including a Pillow,” was duly and legally issued to HiGear, who

has the right to enforce this patent.

38. Defendant has infringed and continues to infringe the ’125 Patent by

using, selling, offering for sale, importing, and/or actively inducing others to use

products that infringe one or more of the claims in the ’125 Patent, and is thus liable

for patent infringement pursuant to 35 U.S.C. § 271. The Accused Products infringe


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9

at least Claims 1 and 12 of the ’125 Patent.

39. Defendant is also liable for patent infringement under 35 U.S.C. § 271

because it actively induced these sellers on its online site to continue selling Accused

Products even after Amazon unequivocally knew of the ’125 Patent, having received

written notice of infringement from HiGear. Amazon acted in a manner that

encouraged these sellers to infringe on the ’125 Patent.

40. Specifically, although Amazon maintains the power under its Conditions

of Use to remove whatever products it wishes to from its online store, has a detailed

infringement notice program to accomplish that removal, and indeed removes

products continuously on this basis, it simply refused to take any action with respect

to preventing these sellers from relisting the Accused Products, continuing to allow

them to be easily redirected and sold on its online store and, on information and

belief, generating substantial profits from those sales.

41. Amazon knew that if it did not remove the Accused Products, the natural

and likely consequence was their continued sale on its online store. Amazon intended

for sales of these Accused Products to continue on its online store. Amazon knew or

should have known that those acts would cause the sellers to continue infringing the

’125 Patent, Amazon having received multiple and detailed notices of the

infringement.

42. Defendant’s infringement of the ’125 Patent has caused and continues to

cause damage to HiGear in an amount to be determined at trial but exceeding

$75,000.

43. Defendant’s infringement of the ’125 Patent has caused and will

continue to cause immediate and irreparable harm to HiGear for which there is no

adequate remedy at law, unless this Court enjoins and restrains such activities. This

includes the harm from Amazon’s failure to remove negative consumer reviews of

knockoff products purporting to review genuine patented TRAVELREST pillows,

despite demand to do so; Amazon should be ordered to remove such misleading


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10

reviews.

44. Defendant knew of the ’125 Patent prior to the filing of this lawsuit.

45. Defendant’s infringement of the ’125 Patent was willful and deliberate,

was objectively reckless due to the high likelihood that its actions constituted

infringement of a valid patent, and knew or should have known of this objectively-

defined risk because the risk was so obvious. Thus, HiGear is entitled to enhanced

damages pursuant to 35 U.S.C. § 284, and costs incurred prosecuting this action.

THIRD CLAIM FOR RELIEF

TRADEMARK INFRINGEMENT

LANHAM ACT (15 U.S.C. § 1114, 1125)


47. HiGear is the owner of two federal trademark registrations for its HiGear

TRAVELREST trademark, U.S. Registration Nos. 3,544,788 and 4,482,893.

48. Amazon listed counterfeit products under the ASINs for TRAVELREST

pillows, and sold and offered for sale other TRAVELREST counterfeit travel pillows,

and/or competing travel pillows that contain TRAVELREST branded promotional

and marketing materials in the product packaging. Amazon has not taken substantial

action to prevent recurring counterfeit goods from being sold on its website.

49. Amazon failed to remove all such products from its shopping site despite

the authority to do so, and clear notice of trademark infringement, and has continued

to allow such sales far beyond any reasonable time needed for action.

50. As a result, Defendants have engaged in the use in commerce of

HiGear’s registered trademarks and the HiGear brand in connection with the sale,

offering for sale, distribution, or advertising of goods and/or services. This use is

likely to cause confusion, mistake or deception as to affiliation, connection or

association of these counterfeit and competing travel pillows with the TRAVELREST

mark and HiGear, and also to cause confusion, mistake or deception as to the origin,

sponsorship, or approval of the unauthorized goods. The goods are competing travel


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11

pillows, sold on the same platform, to the same group of consumers, often using the

same ASIN, and the mark used is identical (often including the registered design

mark itself, in addition to the word mark TRAVELREST)

51. HiGear is informed and believes, and on that basis alleges that this

infringement was done willfully, intentionally, maliciously, and deliberately, and in

bad faith infringed HiGear’s marks.

52. As a direct and proximate result, HiGear has suffered compensatory and

consequential damages in an amount to be proven at trial.

53. Amazon is selling counterfeited knockoffs of TRAVELREST pillows.

This case qualifies for enhanced damages, attorneys’ fees and trebling of actual

damages and profits pursuant to 15 U.S.C. § 1117.

54. HiGear’s remedies at law are not adequate to compensate for injuries

inflicted by Defendant, accordingly, HiGear is entitled to temporary, preliminary and

permanent injunctive relief. This includes the harm from Amazon’s failure to remove

negative consumer reviews of knockoff products purporting to review genuine

patented TRAVELREST pillows, despite demand to do so; Amazon should be

ordered to remove such misleading reviews.

55. Further, Amazon has been unjustly enriched by adoptively willful or

willfully blind attempt to trade off the HiGear brand. As a result of this willful

infringement, HiGear is entitled to Amazon’s profits on the sales and other revenues

derived from the HiGear branded products.

FOURTH CLAIM FOR RELIEF

UNFAIR COMPETITION

LANHAM ACT (15 U.S.C. § 1125), COMMON LAW,

CAL. BUS. & PROF. CODE § 17200 ET SEQ.


57. Defendant has engaged in unfair competition by the acts alleged herein.

58. Defendant’s acts and omissions alleged above constitute unfair business


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

12

practices because the harm of these business practices outweighs the utility, if any, of

these business practices, and are unscrupulous and injurious to consumers.

59. Defendant’s acts and omissions alleged above constitute unlawful

business practices because Defendants’ conduct is forbidden by multiple laws,

including but not limited to 15 U.S.C. § 1125(a), as well as the common laws, laws of

the State of California and laws of the United States.

60. Defendant’s acts and omissions alleged above constitute fraudulent

business practices because consumers are likely to be deceived.

61. Defendants’ wrongful acts are compounded by its improper failure to

remove negative consumer reviews of knockoff pillows posted under the ASINs of

patented TRAVELREST pillows.

62. As a direct and proximate cause, HiGear has suffered compensatory and

consequential damages in an amount to be proven at trial, and is entitled to disgorge

Defendant’s profits. This damage includes loss of goodwill and dilution of its

TRAVELREST brand.

63. Further, as such, HiGear’s remedies at law are not adequate to

compensate for injuries inflicted by Defendants. Accordingly, HiGear is entitled to

preliminary and permanent injunctive relief. This includes the harm from Amazon’s

failure to remove negative consumer reviews of knockoff products purporting to

review genuine patented TRAVELREST pillows, despite demand to do so; Amazon

should be ordered to remove such reviews

64. Amazon is selling counterfeited knockoffs of TRAVELREST pillows.

65. HiGear is informed and believes, and on that basis alleges that

Amazon’s actions were adoptively willful, willfully blind, intentional, malicious,

deliberate and in bad faith, such that punitive damages are justified and reasonable, at

an amount to be proved at trial, and so as to also qualify for enhanced damages and

attorneys’ fees pursuant to 15 U.S.C. § 1117.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

13

PRAYER

WHEREFORE, Plaintiff demands the following relief:

1. A judgment in favor of Plaintiff HiGear and against Amazon on all

counts;

2. A preliminary and permanent injunction from design patent, patent and

trademark infringement, including removal of infringing sales and negative reviews

that, due to the infringement, were incorrectly posted referencing TRAVELREST

pillows.

3. Damages in an amount to be determined at trial, with such damages

enhanced and/or trebled for willful infringement;

4. For infringement of HiGear’ design patent and trademarks, Defendants’

total profits under inter alia 35 U.S.C. § 289 and 15 U.S.C. § 1117(a);

5. Exemplary and punitive damages;

6. Pre-judgment interest at the legally allowable rate on all amounts owed;

7. Costs, expenses and fees;

8. An order finding that Defendant’s infringement of the patents-in-suit and

trademarks has been willful and trebling the damages awarded to Plaintiff, as

provided by 35 U.S.C. § 284 and 15 U.S.C. § 1117(b);

9. A declaration that this is an exceptional case and award Plaintiff its

attorneys’ fees incurred in prosecuting this action, as provided by inter alia 35 U.S.C.

§ 285 and 15 U.S.C. § 1117(a)/(b);

10. Statutory damages as allowed by law against all Defendants;

11. Pre-judgment interest at the legally allowable rate on all amounts owed

against all Defendants;

12. Such other and further relief as this Court may deem just and proper.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

14

Dated: May 9, 2016 MINTZ LEVIN COHN FERRIS GLOVSKY &POPEO

By: s/Andrew D. SkaleAndrew D. Skale, Esq.Ben L. Wagner, Esq.


DEMAND FOR JURY

HiGear demands trial by jury on all issues triable as a matter of right at law.

Dated: May 9, 2016 MINTZ LEVIN COHN FERRIS GLOVSKY &POPEO

By: s/Andrew D. SkaleAndrew D. Skale, Esq.Ben L. Wagner, Esq.


47391531v.2


American LegalNet, Inc.www.FormsWorkFlow.com

JS 44 (Rev. 11/15) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except asprovided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for thepurpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFSHIGEAR DESIGN, INC.

DEFENDANTSAMAZON.COM, INC.

(b) County of Residence of First Listed Plaintiff San Clemente, CA County of Residence of First Listed Defendant Seattle, WA(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: INLAND CONDEMNATION CASES, USE THE LOCATION OFTHE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number)Andrew D. Skale, Mintz Levin Cohn Ferris Glovsky and Popeo3580 Carmel Mountain Rd. #300, San Diego, CA 92130, 858-314-1500

Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(For Diversity Cases Only)

(Place an “X” in One Box for Plaintiffand One Box for Defendant)

1 U.S. GovernmentPlaintiff

2 U.S. GovernmentDefendant

3 Federal Question(U.S. Government Not a Party)

4 Diversity(Indicate Citizenship of Parties in Item III)

Citizen of This State

Citizen of Another State

Citizen or Subject of aForeign Country

PTF DEF1 1

2 2

3 3

Incorporated or Principal Placeof Business In This State

Incorporated and Principal Placeof Business In Another State

Foreign Nation

PTF DEF4 4

5 5

6 6

IV. NATURE OF SUIT (Place an “X” in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

110 Insurance

120 Marine

130 Miller Act140 Negotiable Instrument

150 Recovery of Overpayment& Enforcement of Judgment

151 Medicare Act

152 Recovery of DefaultedStudent Loans(Excludes Veterans)

153 Recovery of Overpaymentof Veteran’s Benefits

160 Stockholders’ Suits

190 Other Contract195 Contract Product Liability

196 Franchise

PERSONAL INJURY310 Airplane

315 Airplane ProductLiability

320 Assault, Libel &Slander

330 Federal Employers’Liability

340 Marine

345 Marine ProductLiability

350 Motor Vehicle

355 Motor VehicleProduct Liability

360 Other PersonalInjury

362 Personal Injury -Medical Malpractice

PERSONAL INJURY365 Personal Injury -

Product Liability367 Health Care/

PharmaceuticalPersonal InjuryProduct Liability

368 Asbestos PersonalInjury ProductLiability

PERSONAL PROPERTY370 Other Fraud

371 Truth in Lending

380 Other PersonalProperty Damage

385 Property DamageProduct Liability

625 Drug Related Seizureof Property 21 USC 881

690 Other

422 Appeal 28 USC 158

423 Withdrawal28 USC 157

375 False Claims Act

376 Qui Tam (31 USC3729(a))

400 State Reapportionment410 Antitrust

430 Banks and Banking

450 Commerce

460 Deportation

470 Racketeer Influenced andCorrupt Organizations

480 Consumer Credit490 Cable/Sat TV

850 Securities/Commodities/Exchange

890 Other Statutory Actions

891 Agricultural Acts

893 Environmental Matters

895 Freedom of InformationAct

896 Arbitration899 Administrative Procedure

Act/Review or Appeal ofAgency Decision

950 Constitutionality ofState Statutes

PROPERTY RIGHTS

820 Copyrights

830 Patent

840 TrademarkLABOR SOCIAL SECURITY

710 Fair Labor StandardsAct

720 Labor/ManagementRelations

740 Railway Labor Act

751 Family and MedicalLeave Act

790 Other Labor Litigation

791 Employee RetirementIncome Security Act

861 HIA (1395ff)862 Black Lung (923)

863 DIWC/DIWW (405(g))

864 SSID Title XVI

865 RSI (405(g))

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS FEDERAL TAX SUITS

210 Land Condemnation220 Foreclosure

230 Rent Lease & Ejectment

240 Torts to Land

245 Tort Product Liability

290 All Other Real Property

440 Other Civil Rights441 Voting

442 Employment

443 Housing/Accommodations

445 Amer. w/Disabilities-Employment

446 Amer. w/Disabilities-Other

448 Education

Habeas Corpus:463 Alien Detainee510 Motions to Vacate

Sentence530 General

535 Death PenaltyOther:540 Mandamus & Other

550 Civil Rights

555 Prison Condition

560 Civil Detainee -Conditions ofConfinement

870 Taxes (U.S. Plaintiffor Defendant)

871 IRS-Third Party26 USC 7609

IMMIGRATION

462 Naturalization Application

465 Other ImmigrationActions

V. ORIGIN (Place an “X” in One Box Only)1 Original

Proceeding2 Removed from

State Court3 Remanded from

Appellate Court4 Reinstated or

Reopened5 Transferred from

Another District(Specify)

6 MultidistrictLitigation

VI. CAUSE OF ACTION

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):35 U.S.C. §§ 271 and 289 et seq.; 15 U.S.C. §§ 1114 and 1125et seqBrief description of cause:Design Patent and Utility Patent Infringement, and Trademark Infringement

VII. REQUESTED INCOMPLAINT:

CHECK IF THIS IS A CLASS ACTIONUNDER RULE 23, F.R.Cv.P.

DEMAND $ CHECK YES only if demanded in complaint:JURY DEMAND: Yes No

VIII. RELATED CASE(S)IF ANY

(See instructions):JUDGE DOCKET NUMBER

DATE May 9, 2016 SIGNATURE OF ATTORNEY OF RECORD s/Andrew D. SkaleFOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

'16CV1110 JLBLAB

XXXXXXXX (srm)

Case 3:16-cv-01110-LAB-JLB Document 1-1 Filed 05/09/16 Page 1 of 2

American LegalNet, Inc.www.FormsWorkFlow.com

JS 44 Reverse (Rev. 11/15)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers asrequired by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, isrequired for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk ofCourt for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, useonly the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency andthen the official, giving both name and title.

(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at thetime of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In landcondemnation cases, the county of residence of the “defendant” is the location of the tract of land involved.)

(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, notingin this section “(see attachment)”.

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an “X”in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an “X” in this box.Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendmentto the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takesprecedence, and box 1 or 2 should be marked.Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, thecitizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversitycases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark thissection for each principal party.

IV. Nature of Suit. Place an “X” in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, issufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more thanone nature of suit, select the most definitive.

V. Origin. Place an “X” in one of the six boxes.Original Proceedings. (1) Cases which originate in the United States district courts.Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.When the petition for removal is granted, check this box.Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filingdate.Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers ormultidistrict litigation transfers.Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407.When this box is checked, do not check (5) above.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictionalstatutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an “X” in this box if you are filing a class action under Rule 23, F.R.Cv.P.Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docketnumbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.


EXHIBIT 1


EXHIBIT 2


EXHIBIT 3


EXHIBIT 4


EXHIBIT 5


T estO rderDate S ellerN icknam e A S IN

8/1/2014 Anardark B002P 8YW 54

8/1/2014 CountYer B002P 8YW 54

8/15/2014 O nlyChef B002P 8YW 54

8/15/2014 T eviandT ed B001DYDAEK

8/15/2014 T heFifthAve B001DYDAEK

8/23/2014 Irries B002P 8YW 54

n/a Attm u

10/5/2014 T ravelBuddy B002P 8YW 54

2/24/2015 Diam ondM indM arketing B001DYDAEK

3/2/2015 T Q 2015 B001DYDAEK/B002P 8YW 54

3/2/2015 T Q 2015 B00S GZEZ3O

3/6/2015 Cindy'sInternationalS tore B001DYDAEK

5/15/2015 w oogoing B001DYDAEK

6/11/2015 Batlow B001DYDAEK/B002P 8YW 54

6/11/2015 houm ian B00YA3CCN 6

6/11/2015 nonorabbit B00YHKM 5AM

6/11/2015 R edFire B00YE9FM 60

6/11/2015 w oogoing B00Y7Y2U W Q

6/12/2015 Diam ondM indM arketing B00X 2U I7K0

6/21/2015 FashionFront B002P 8YW 54

7/1/2015 Am azonW arehouseDealsInc. B00X 2U I7K0

7/8/2015 S portsm ax U S A B010L VHG7C

7/17/2015 Am azonW arehouseDealsInc. B00X 2U I7K0

n/a Diam ondM indM arketing B001DYDAEK

n/a Diam ondM indM arketing B00X 2U I7K0

8/19/2015 lixaiojing B001DYDAEK/B002P 8YW 54

9/21/2015 Artshall B001DYDAEK

12/5/2015 iR esources B014KN 94G8

3/16/2016 X U EW EN W A B001DYDAEK/B002P 8YW 54

ChartofInfringingP roducts


EXHIBIT 6


February 27, 2015

Order ID: 113-1573928-2593000

Amazon Seller Nickname: “DiamondMindMarketing”

The seller named above is selling counterfeit Travelrest through the Amazon marketplace. They are violatiing ourutility patent, design patent, and brand trademark by o�ering such product for sale. A "test buy" has been made and proof of violation is evidenced in attached images.

left: counterfeit travelrest in box right: genuine travelrest in clamshell package

authentic counterfeit

left: counterfeit with beach ball valveright: genuine travelrest with large travelrest valve

counterfeit directions inblack and white

authentic directions printedin color


Seller: BatlowOrder #: 115-9079507-3051448

Order Date: 6/11/15 for ASIN: B001DYDAEK


12/9/15

Order ID: 107-2890319-4369810ASIN: B014KN94G8Amazon Seller Nickname: “iResources”

The seller named above is selling counterfeit Travelrest through the Amazon marketplace. They are violatiing our

and proof of violation is evidenced in attached images. Seller created their own pillow directions yet failed to remove faux “travelrest” directions from factory. Seller is trying to white label a knock o�.


July 3, 2015

Order ID: 115-3665939-3648200

Amazon Seller Nickname: “Amazon Warehouse Deals; Warehouse Deals, Inc”

The seller named above is selling counterfeit Travelrest through the Amazon marketplace. They are violatiing ourutility patent, design patent, and brand trademark by o�ering such product for sale. A "test buy" has been made and proof of violation is evidenced in attached images.

counterifeit


� AO 121 (6/90) TO:

Register of Copyrights

Copyright Office

Library of Congress

Washington, D.C. 20559

REPORT ON THE

FILING OR DETERMINATION OF AN

ACTION OR APPEAL

REGARDING A COPYRIGHT

In compliance with the provisions of 17 U.S.C. 508, you are hereby advised that a court action or appeal has been filedon the following copyright(s):

COURT NAME AND LOCATIONG ACTION G APPEAL

DOCKET NO. DATE FILED

PLAINTIFF DEFENDANT

COPYRIGHT

REGISTRATION NO.TITLE OF WORK AUTHOR OR WORK

1

2

3

4

5

In the above-entitled case, the following copyright(s) have been included:DATE INCLUDED INCLUDED BY

G Amendment G Answer G Cross Bill G Other PleadingCOPYRIGHT

REGISTRATION NO.TITLE OF WORK AUTHOR OF WORK

1

2

3 .

In the above-entitled case, a final decision was rendered on the date entered below. A copy of the order or judgmenttogether with the written opinion, if any, of the court is attached.

COPY ATTACHED WRITTEN OPINION ATTACHED DATE RENDERED

G Order G Judgment G Yes G No

CLERK (BY) DEPUTY CLERK DATE

1) Upon initiation of action, 2) Upon filing of document adding copyright(s), 3) Upon termination of action, mail copy to Register of Copyrights mail copy to Register of Copyrights mail copy to Register of Copyrights

DISTRIBUTION:

4) In the event of an appeal, forward copy to Appellate Court 5) Case File Copy

✔ United States District Court, Southern District of California333 West Broadway, Suite 420San Diego, CA 9210116cv1110 LAB(JLB) 5/9/2016

HiGear Design, Inc. Amazon.com, Inc.

N/A stock copyrighted pictures of Travelrest products HiGear Design, Inc.


HiGear Design v. Amazon - Complaint

Documents

Transcript of HiGear Design v. Amazon - Complaint