Cabeau v. Atomi - Complaint

Case 2:15-cv-00303 Document 1 Filed 01/14/15 Page 1 of 12 Page ID #:1
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JAYE G. HEYBL (CA Bar No. 167,110)

COREY A. DONALDSON (CA Bar No. 280,383)
KOPPEL PATRICK HEYBL & PHILPOTT
2815 Townsgate Road, Suite 215
Westlake Village, California 91361
Telephone: (805) 373-0060
Facsimile: (805) 373-0051
jheybl@koppelpatent.com
cdonaldson@koppelpatent.com
Attorneys for Plaintiff
CABEAU, INC.
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION
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CABEAU, INC., a California corporation,
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CASE NO. 2:15-CV-00303

COMPLAINT FOR DAMAGES AND
INJUNCTIVE RELIEF FOR:
Plaintiff,
vs.
(1) PATENT INFRINGEMENT [35

U.S.C. 271];
(2) FEDERAL UNFAIR
COMPETITION AND TRADE
DRESS INFRINGEMENT [15
U.S.C. 1125(a)]; and
(3) COMMON LAW UNFAIR
COMPETITION
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ATOMI, INC., a New York corporation,

and DOES 1-10 inclusive,
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Defendant.
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DEMAND FOR JURY TRIAL
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COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF AND DEMAND FOR JURY TRIAL
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Plaintiff Cabeau, Inc. ("Cabeau" or "Plaintiff"), for its complaint against defendant
Atomi, Inc. ("Atomi" or "Defendant"), alleges as follows:
PARTIES
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1.
Plaintiff Cabeau, Inc. is a corporation duly organized and existing under the
laws of the State of California, with a principal place of business located at 5850 Canoga
Avenue, Suite 100, Woodland Hills, California 91367.
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2.
On information and belief, Defendant Atomi, Inc. is a New York corporation
having a place of business at 10 W. 33 Street, Suite 520, New York, New York 10001.
3.
Defendants Does 1-10, inclusive, are sued herein under fictitious names.
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Their true names and capacities are unknown to Cabeau. When their true names and
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capacities are ascertained, Cabeau will amend this complaint by inserting their true
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names and capacities. Cabeau is informed and believes and thereon alleges that each of
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Does 1-10 is responsible in some manner for the occurrences alleged herein and that
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Cabeau's damages have been and are being proximately caused by such defendants.
JURISDICTION AND VENUE
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4.
Jurisdiction in this Court arises under the patent laws of the United States,
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35 U.S.C. 271, 281, and 289, and the provisions of 15 U.S.C. 1121 and 1125. This
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complaint also alleges violations of state law and common law. This Court has
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jurisdiction over these claims pursuant to 28 U.S.C. 1331, 1338(a), 1338(b), 1367(a),
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and 1400(b).
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5.
This Court has personal jurisdiction over Defendant because it has
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committed one or more of the infringing acts complained of herein in California and in
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this district, it has sales outlets in California and in this district, and it does regular
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business in California and in this district. This Court has personal jurisdiction over
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Defendant because, among other things, Defendant conducts business in the State of
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California and in this judicial district and thus enjoys the privileges and protections of
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California law.
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6.
Venue in this Court is proper at least under the provisions of 28 U.S.C.
1391(b) and 1391(c) because a substantial part of the claims arose in this district.
BACKGROUND
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This is an action for design patent infringement, trade dress infringement, and
unfair competition.
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Cabeau is a multi-million dollar leader in the travel product industry. Cabeau's
flagship product is the EVOLUTION PILLOW, one of the best-selling travel pillows
worldwide.
9.
Cabeau is the owner, by assignment, of United States Design Patent No.
D619,402 (the 402 Patent) titled Travel Pillow. The 402 Patent was duly and legally
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issued by the United States Patent and Trademark Office on July 13, 2010. A true and
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correct copy of the 402 Patent is attached as Exhibit A.

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As the owner of the 402 Patent, Cabeau is authorized and has standing to
bring legal action to enforce all rights arising under the 402 Patent.
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Defendant has been, and presently is, willfully infringing the '402 Patent by
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making and selling pillows that embody the patented invention claimed by the '402
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Patent.
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In order to identify its pillow as emanating from a single source, Cabeau
created a new and unique trade dress embodied by the EVOLUTION PILLOW.
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Trade dress embodied by the EVOLUTION PILLOW is shown in
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comparison to Defendant's ULTIMATE PILLOW below:
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Cabeau EVOLUTION PILLOW
Atomi ULTIMATE PILLOW
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Defendant's ULTIMATE PILLOW infringes Cabeau's EVOLUTION
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PILLOW trade dress. Defendant's conduct is likely to cause confusion, mistake, and/or
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deception among the general purchasing public. Defendant has profited and is profiting
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from such trade dress infringement and unfair competition.
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FIRST CAUSE OF ACTION
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(Design Patent Infringement, U.S. Des. Pat. No. D619,402)
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15.
Cabeau realleges and incorporates by reference the full text of all of the
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foregoing numbered paragraphs, photographs, figures, and tables as though each such
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paragraph, photograph, figure, and table has been fully set forth herein.
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16.
On July 13, 2010, the United States Patent and Trademark Office issued
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U.S. Des. Pat. No. D619,402 (hereinafter "the '402 Patent"). Effective as of the date of
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application, January 15, 2010, Cabeau is the owner of the entire right, title, and interest in
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and to the patent application and the '402 Patent issuing therefrom, as shown by the
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USPTO Assignment Database. See Exhibit B. The '402 Patent was duly and legally
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issued by the United States Patent and Trademark Office on July 13, 2010.
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17.
Cabeau's ownership of the '402 Patent includes without limitation the
exclusive right to enforce the '402 Patent, the exclusive right to file actions based on
infringement of the '402 Patent, and the exclusive right to recover damages or other
monetary amounts for infringement of the '402 Patent and to be awarded injunctive relief
pertaining to the '402 Patent, and as such Cabeau has standing to bring legal action to
enforce all rights arising under the '402 Patent.
18.
Defendant has been, and presently is, infringing the '402 Patent within this
judicial district and elsewhere by making, using, selling, offering to sell in, and/or
importing into the United States travel pillows that embody the patented invention
claimed by the '402 Patent. Such products include, by way of example and without
limitation, Defendant's ULTIMATE PILLOW product. Defendant will continue to
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manufacture and sell its ULTIMATE PILLOW unless enjoined by this Court.
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Defendant has had actual knowledge of the '402 Patent since at least as early
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as December 19, 2014. Defendant continues to, inter alia, make, sell, offer for sale in,
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and/or import into the United States infringing travel pillows, thus intending for its
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actions to result in infringement or disregarding an objectively high likelihood that such
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actions will result in infringement. Defendant's infringement is therefore willful.
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20.
On information and belief, Defendant has knowingly induced infringement,
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and has had specific intent to induce infringement of the '402 Patent by, inter alia,
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marketing, selling, supporting sales, and/or distributing infringing travel pillows.
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Defendant's customers, including without limitation manufacturers and retailers, directly
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infringe the '402 Patent by, inter alia, making, using, selling, offering to sell in, and/or
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importing into the United States infringing travel pillows.
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21.
The ULTIMATE PILLOW so closely resembles the invention claimed by
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the '402 Patent that an ordinary observer would be deceived into purchasing the
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ULTIMATE PILLOW in the mistaken belief that it includes the invention claimed by the
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'402 Patent. Defendant's ULTIMATE PILLOW infringes the '402 Patent in violation of
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35 U.S.C. 271 and 289.
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22.
Due to Defendant's infringement of the '402 Patent, Cabeau has suffered, is
suffering, and will continue to suffer irreparable injury for which Cabeau has no adequate
remedy at law. Cabeau is therefore entitled to a permanent injunction against Defendant's
further infringing conduct.
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Defendant has profited and is profiting from its infringement of the '402
Patent and Cabeau has been and is being damaged and losing profit by such infringement.
Cabeau is therefore entitled to recover damages from the Defendant and the total profit
derived from such infringement, all in amount to be proven at trial, together with interest
and costs as fixed by the Court.
SECOND CAUSE OF ACTION
(EVOLUTION PILLOW Trade Dress Federal Unfair Competition
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and Trade Dress Infringement; 15 U.S.C. 1125(a))
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Defendant makes, uses, sells, offers to sell, and/or imports a product, the
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ULTIMATE PILLOW, that includes similar packaging and a substantially identical
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design to Cabeau's EVOLUTION PILLOW, which taken alone or in combination are
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likely to cause confusion among consumers and constitute trade dress infringement and
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unfair competition in violation of Lanham Act 43(a), 15 U.S.C. 1125(a).
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Cabeau has acquired exclusive and protectable trade dress rights embodied
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in its EVOLUTION PILLOW trade dress. By the acts and omissions set forth above,
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Defendant is violating Lanham Act 43(a), 15 U.S.C. 1125(a), and is unfairly
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competing with Cabeau.
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Defendant's use in commerce of the EVOLUTION PILLOW trade dress
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on its ULTIMATE PILLOW constitutes a false designation of origin and a false and
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misleading representation of fact which is likely to cause confusion, and to cause
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mistake, and to deceive by wrongly suggesting that Defendant's ULTIMATE PILLOW
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has some affiliation, connection, or association with Cabeau. Such use by Defendant of
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Cabeau's EVOLUTION PILLOW trade dress is also likely to cause confusion, and to
cause mistake, and to deceive as to the origin, sponsorship, or approval of Defendant's
ULTIMATE PILLOW. Such use by Defendant of its ULTIMATE PILLOW constitutes
trade dress infringement in violation of Lanham Act 43(a), 15 U.S.C. 1125(a).

28.
Defendant has infringed, and continues to infringe, Cabeau's
EVOLUTION PILLOW trade dress. Defendant's ULTIMATE PILLOW infringes
Cabeau's EVOLUTION PILLOW trade dress.

29.
Defendant's conduct is likely to cause confusion, mistake, and deception
among the general purchasing public, and interfere with Cabeau's ability to sell and profit
from its EVOLUTION PILLOW product.

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Defendant's conduct as described above is also likely to harm or extinguish
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the current ability of Cabeau's EVOLUTION PILLOW trade dress to indicate that the
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product emanates from a single source. Defendant's conduct as described above harms
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the goodwill and reputation associated with Cabeau's EVOLUTION PILLOW trade
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dress.
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Cabeau has suffered, is suffering, and will continue to suffer irreparable
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injury for which Cabeau has no adequate remedy at law. Cabeau is therefore entitled to a
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permanent injunction against Defendant's further infringing conduct.

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Defendant has profited and is profiting from such trade dress infringement
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and unfair competition, and Cabeau has been and is being damaged and losing profit by
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such infringement and unfair competition. Cabeau is therefore entitled to recover
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damages and profits from Defendants in an amount to be proved at trial as a consequence
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of Defendant's violations of Lanham Act 43(a), 15 U.S.C. 1125(a).
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THIRD CAUSE OF ACTION
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(Common Law Unfair Competition)

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Defendant is willfully, fraudulently, oppressively, maliciously, and
unlawfully attempting to pass off, and is passing off, its infringing pillows as those
approved and/or authorized by Cabeau.
35.
Defendant's use in commerce of the ULTIMATE PILLOW continues to
confuse and deceive consumers as to the source and origin of the goods and services for
which Cabeau has invested substantial time, effort, and money in developing, and further
damages Cabeau's goodwill and reputation.
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Defendant has been palming off its goods as Cabeau's goods. Consumers
have been and continue to be confused as to whether Defendant's ULTIMATE PILLOW

is affiliated with Cabeau.
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The damage suffered by Cabeau is irreparable and will continue unless
Defendant is restrained by this Court from the commission of these acts.

38.
Defendant's willful, deliberate, and malicious conduct constitutes unfair
competition with Cabeau.

39.
Such conduct by Defendant is the sole reason for Defendant's ability to
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market and sell its unauthorized copies of pillows that embody Cabeau's EVOLUTION
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PILLOW trade dress.
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40.
Defendant is being unjustly enriched through such flagrantly unlawful
conduct and should be punished therefor.

41.
Cabeau has no adequate remedy at law in that the continuing nature of the
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unfair competition will result in irreparable harm to Cabeau should Defendant not be
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enjoined from its acts of unfair competition.
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42.
A complete recitation of the damages suffered by Cabeau as a result of this
unfair competition must await discovery of Defendant's books and records.

PRAYER FOR RELIEF
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WHEREFORE, Plaintiff Cabeau, Inc. prays for relief as follows:
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1.
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A judgment declaring that Defendant has:

a.
infringed Cabeau's '402 Patent;
b.
infringed Cabeau's EVOLUTION PILLOW trade dress;
c.
competed unfairly with Cabeau;
d.
injured Cabeau's business reputation by the unauthorized use of

Cabeau's EVOLUTION PILLOW trade dress;
e.
willfully violated applicable laws of the United States and of the states
where Defendant's goods have been sold, all to the detriment of
Cabeau;
2.
That the Defendant, its officers, agents, servants, employees, attorneys,

assigns, and all persons in active concert with or participation with them be
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forthwith permanently enjoined and restrained from:
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a.
infringing or inducing infringement of Cabeau's '402 Patent;
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b.
infringing or inducing infringement of Cabeau's EVOLUTION

PILLOW trade dress;
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c.
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using Cabeau's EVOLUTION PILLOW trade dress alone or in
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combination with any other elements, to advertise or identify
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Defendant's goods or services;
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unfairly competing with Cabeau in any manner whatsoever;
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causing likelihood of confusion, or injury to Cabeau's business and to
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the reputation of Cabeau's marks, symbols, trade dress, labels, or
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forms of advertising or promotion;

f.
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engaging in any acts or activities directly or indirectly calculated to
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trade upon Cabeau's EVOLUTION PILLOW trade dress or the
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reputation or goodwill of Cabeau, or in any way to compete unfairly
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with Cabeau;
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3.
For a judgment directing that any pillows, goods, labels, emblems, and/or
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packaging in the possession or under the control of Defendants which
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infringe the '402 Patent, or any colorable imitation thereof, but not
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emanating from Cabeau, be delivered up and destroyed within 10 days of
entry of judgment, and that all instrumentalities used in the production of
such pillows, goods, labels, emblems, or packaging, including any and all
items, objects, tools, machines, mold, and equipment used in such
production, be delivered up and destroyed within 10 days of entry of
judgment;
4.
For a judgment directing Defendant to recall all infringing goods and any
other materials sold, distributed, advertised, or marketed which infringe any
and all of the '402 Patent, or any colorable imitation or facsimile thereof, but
not emanating from Cabeau;
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5.
For a judgment against Defendant awarding Cabeau damages, lost profits,
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reasonable royalties, and other monetary amounts including without
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limitation:
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a.
all damages sustained by Cabeau as a result of Defendant's unlawful
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infringement of the '402 Patent, together with appropriate interest on
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such damages and that such damages be trebled, pursuant to 35 U.S.C.
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284;
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b.
the '402 Patent, and all other remedies provided by 35 U.S.C. 289;
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Defendant's total profit from Defendant's sales of pillows that infringe
c.
all remedies provided for by 15 U.S.C. 1117(a), including but not
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limited to all damages sustained by Cabeau as a result of Defendant's
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unlawful infringement of Cabeau's EVOLUTION PILLOW trade
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dress, together with appropriate interest on such damages, and that
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such damages be trebled;
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d.
all remedies provided for by 15 U.S.C. 1117(a), including but not
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limited to all profits derived by Defendant from the sale of goods by
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the direct or indirect use of any pillow that embodies Cabeau's
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EVOLUTION PILLOW trade dress or any colorable imitations or
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facsimiles thereof, and that such profits be trebled;
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e.
all damages sustained by Cabeau on account of unfair competition,
lost business opportunities, and any other damage suffered by Cabeau
as a result of Defendant's acts described in this complaint, and that
such damages be trebled;
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For an order directing Defendant to pay punitive damages to Cabeau;
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For an order directing Defendant to pay restitution to Cabeau;
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For an award of attorneys' fees pursuant to 35 U.S.C. 285 and pursuant to

15 U.S.C. 1117;
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For an award of pre-judgment interest at the maximum rate allowed by law;
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For the costs of suit herein; and
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For such additional further relief that the Court may deem just and proper
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under the circumstances.
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Respectfully submitted,
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DATED: 14 January 2015

By: /s/ Corey A. Donaldson
Jaye G. Heybl
Corey A. Donaldson
Telephone: (805) 373-0060
Facsimile: (805) 373-0051
Attorneys for Defendant
CABEAU, INC.
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DEMAND FOR JURY TRIAL
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Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure and Local Rule 38-
1, Plaintiff Cabeau, Inc. hereby demands a trial by jury of any and all issues triable of
right by a jury pursuant to the Seventh Amendment to the United States Constitution or
as given by a statute of the United States.
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DATED: 14 January 2015

By: /s/ Corey A. Donaldson
Jaye G. Heybl
Corey A. Donaldson
Telephone: (805) 373-0060
Facsimile: (805) 373-0051
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CABEAU, INC.
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Case 2:15-cv-00303 Document 1-1 Filed 01/14/15 Page 1 of 13 Page ID #:13
EXHIBIT A

USO0D619402S
(12) United States Design Patent (10) Patent N0.:

Sternlight et al.
US D619,402 S
(45) Date of Patent:
*1,
Jul. 13, 2010
(54)
TRAVEL PILLOW
(57)
(76)
Inventors: David Bret Sternlight, 22339 Hart St.,
What is claimed is the ornamental design for a travel pilloW,
Canoga Park, CA (US) 91303; Kyna
CLAIM
as shoWn and described.
Rose Sternlight, 22339 Hart St., Canoga

Park, CA (US) 91303
(**)
Term:
DESCRIPTION
14 Years
(21) Appl.No.: 29/353,886
FIG. 1 is a perspective vieW of a ?rst embodiment of a travel
pilloW, showing the neW design;

(22) Filed:
Jan. 15, 2010
(51)
LOC (9) Cl.
................................................ .. 06-09
(52)
US. Cl. ......... ..
(58)
Field of Classi?cation Search ........ ..
D6/601
D6/595i60l,
D6/604, 605; 5/630, 633, 6364638, 640,

5/644, 6524654, 655.3, 655.6, 655.9, 656,
5/657, 657.5; D21/803, 804
See application ?le for complete search history.
(56)
References Cited
U.S. PATENT DOCUMENTS
1,468,072 A *
6,230,348 B1*
D445,624
9/1923
5/2001
Ogle ........................... .. 5/654

Patrikakis
...... .. 5/636
Futagami
7/2001
D481,247 S
10/2003
Roberts et a1. ..
. ... .. ..
. . . . ..
D6/604
D582,7l3 S
12/2008
Baldwin .................... .. D6/601
.... .. D6/604
* cited by examiner
Primary Examinerilanice E Seeger

(74) Attorney, Agent, or FirmiQuickPatents, lnc.; Kevin
Prince
FIG.
FIG.
FIG.
FIG.
2
3
4
5
is a front elevational vieW thereof;

is a rear elevational vieW thereof;
is a left-side elevational vieW thereof;

is a right-side elevational vieW thereof;
FIG. 6 is a top plan vieW thereof;

FIG. 7 is a bottom plan vieW thereof;
FIG. 8 is a perspective vieW of a second embodiment thereof;
FIG. 9 is a front elevational vieW thereof;
FIG. 10 is a rear elevational vieW thereof;
FIG. 11 is a left-side elevational vieW thereof;
FIG. 12 is a right-side elevational vieW thereof;
FIG. 13 is a top plan vieW thereof; and,

FIG. 14 is a bottom plan vieW thereof.
The broken lines showing an electronic device in FIG. 1 are
included for the purpose of illustrating the invention in use,

and form no part of the claimed design.
1 Claim, 11 Drawing Sheets
US. Patent
Jul. 13, 2010
Sheet 1 0f 11
US D619,402 S
US. Patent
Jul. 13 2010
Sheet2 0f 11
FIG. 2
FIG. 3
US. Patent
Jul. 13, 2010
Sheet 3 0f 11
US D619,402 S
FIG.4
US. Patent
Jul. 13, 2010
Sheet 4 0f 11
US D619,402 S
FIG.5
US. Patent
Jul. 13, 2010
Sheet 5 0f 11
FIG. 6
US D619,402 S
US. Patent
Jul. 13, 2010
Sheet 7 0f 11
FIG. 8
US D619,402 S
US. Patent
Jul. 13, 2010
Sheet 10 0f 11
FIG. 13
US D619,402 S
EXHIBIT B

Cabeau v. Atomi - Complaint

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Case 2:15-cv-00303 Document 1 Filed 01/14/15 Page 1 of 12 Page ID #:1

JAYE G. HEYBL (CA Bar No. 167,110)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

CABEAU, INC., a California corporation,

CASE NO. 2:15-CV-00303

(1) PATENT INFRINGEMENT [35

ATOMI, INC., a New York corporation,

DEMAND FOR JURY TRIAL

Case 2:15-cv-00303 Document 1 Filed 01/14/15 Page 2 of 12 Page ID #:2

Avenue, Suite 100, Woodland Hills, California 91367.

On information and belief, Defendant Atomi, Inc. is a New York corporation

This Court has personal jurisdiction over Defendant because it has

Venue in this Court is proper at least under the provisions of 28 U.S.C.

Case 2:15-cv-00303 Document 1 Filed 01/14/15 Page 3 of 12 Page ID #:3

Cabeau is a multi-million dollar leader in the travel product industry. Cabeau's

Cabeau is the owner, by assignment, of United States Design Patent No.

correct copy of the 402 Patent is attached as Exhibit A.

In order to identify its pillow as emanating from a single source, Cabeau

Trade dress embodied by the EVOLUTION PILLOW is shown in

comparison to Defendant's ULTIMATE PILLOW below:

Case 2:15-cv-00303 Document 1 Filed 01/14/15 Page 4 of 12 Page ID #:4

Cabeau EVOLUTION PILLOW

Atomi ULTIMATE PILLOW

Defendant's ULTIMATE PILLOW infringes Cabeau's EVOLUTION

from such trade dress infringement and unfair competition.

FIRST CAUSE OF ACTION

(Design Patent Infringement, U.S. Des. Pat. No. D619,402)

Cabeau's ownership of the '402 Patent includes without limitation the

Case 2:15-cv-00303 Document 1 Filed 01/14/15 Page 5 of 12 Page ID #:5

enforce all rights arising under the '402 Patent.

limitation, Defendant's ULTIMATE PILLOW product. Defendant will continue to

actions to result in infringement or disregarding an objectively high likelihood that such

actions will result in infringement. Defendant's infringement is therefore willful.

On information and belief, Defendant has knowingly induced infringement,

marketing, selling, supporting sales, and/or distributing infringing travel pillows.

Defendant's customers, including without limitation manufacturers and retailers, directly

importing into the United States infringing travel pillows.

The ULTIMATE PILLOW so closely resembles the invention claimed by

35 U.S.C. 271 and 289.

Due to Defendant's infringement of the '402 Patent, Cabeau has suffered, is

Case 2:15-cv-00303 Document 1 Filed 01/14/15 Page 6 of 12 Page ID #:6

remedy at law. Cabeau is therefore entitled to a permanent injunction against Defendant's

further infringing conduct.

and costs as fixed by the Court.

SECOND CAUSE OF ACTION

(EVOLUTION PILLOW Trade Dress Federal Unfair Competition

and Trade Dress Infringement; 15 U.S.C. 1125(a))

ULTIMATE PILLOW, that includes similar packaging and a substantially identical

design to Cabeau's EVOLUTION PILLOW, which taken alone or in combination are

unfair competition in violation of Lanham Act 43(a), 15 U.S.C. 1125(a).

Defendant is violating Lanham Act 43(a), 15 U.S.C. 1125(a), and is unfairly

competing with Cabeau.

Defendant's use in commerce of the EVOLUTION PILLOW trade dress

misleading representation of fact which is likely to cause confusion, and to cause

mistake, and to deceive by wrongly suggesting that Defendant's ULTIMATE PILLOW

Case 2:15-cv-00303 Document 1 Filed 01/14/15 Page 7 of 12 Page ID #:7

cause mistake, and to deceive as to the origin, sponsorship, or approval of Defendant's

ULTIMATE PILLOW. Such use by Defendant of its ULTIMATE PILLOW constitutes