BCP Imports, LLC v. Wal-Mart Stores, Inc. et al

Filing 1

Complaint with jury demand for Copyright Infringement and Unfair Competition against All Defendants. Filing fee paid $ 350, Receipt number 0647-4362204 Plaintiff has indicated that case may be related to pending civil action 3:10-cv-02254. Filed by BCP Imports, LLC. (Attachments: # 1 Exhibit A, # 2 Summons Wal-Mart, # 3 Summons Crimzon) (Choka, Byron). Civil Cover Sheet filed 4 . Modified on 10/22/2010 (M,C).

BCP Imports, LLC v. Wal-Mart Stores, Inc. et al

Doc. 1

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO WESTERN DIVISION BCP IMPORTS, LLC 148 Main Street Toledo, OH 43605 Plaintiff, v. WAL-MART STORES, INC. 702 S.W. 8th Street Bentonville, Arkansas, 72716 and CRIMZON ROSE INTERNATIONAL, LLC Four Warren Avenue North Providence, Rhode Island 02911 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: Hon. Judge: COMPLAINT FOR COPYRIGHT INFRINGEMENT AND UNFAIR COMPETITION JURY DEMAND

Plaintiff, BCP Imports, LLC ("Plaintiff"), by and through its undersigned attorneys, for its complaint against Defendants Wal-Mart Stores, Inc. and Crimzon Rose International, LLC (collectively, "Defendants"), alleges as follows:

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NATURE OF THE ACTION 1. This is a civil action arising under the laws of the United States, specifically under

17 USC § 501 for copyright infringement and under 15 USC § 1125(a) (§ 43(a) of the Lanham Act) for trade dress infringement and unfair competition.

PARTIES 2. BCP Imports, LLC is a limited liability corporation organized under the laws of

the State of Ohio with its principal place of business at 148 Main Street, Toledo, Ohio 43605. 3. On information and belief, Wal-Mart Stores, Inc. is a corporation organized under

the laws of the State of Arkansas, having a place of business at 702 S.W. 8th Street, Bentonville, Arkansas, 72716. 4. On information and belief, Crimzon Rose International, LLC is a limited liability

corporation organized under the laws of the State of Rhode Island, having a place of business at Four Warren Avenue, North Providence, Rhode Island 02911.

JURISDICTION AND VENUE 5. This Court has subject matter jurisdiction pursuant to 15 USC § 1121 (actions

arising under the Lanham Act), 28 USC § 1331 (actions arising under the laws of the United States), 28 USC § 1338(a) (acts of Congress relating to copyrights and trademarks), and 28 USC § 1338(b) (civil actions asserting a claim of unfair competition). 6. This Court has personal jurisdiction over Defendants. On information and belief,

Defendants have conducted acts of infringement and unfair competition in this District.

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7.

Venue is proper in this District pursuant to 28 USC § 1391. On information and

belief, Defendants are subject to personal jurisdiction in this District and the acts complained of herein take place within this District.

FACTS COMMON TO ALL COUNTS 8. Plaintiff sells uniquely shaped and brightly colored elastic bands under the

trademark Sillybandz which is the subject of U.S. Trademark Registration number 3,787,219 (a copy of which is attached hereto as Exhibit A). Plaintiff's products are sold in clear plastic "pillow-shaped" packages with a generally rectangular label located near the top of the package. The label bears a "wave" background design. 9. Defendants sell brightly colored elastic bands in shapes substantially identical to

those sold by Plaintiff in clear plastic "pillow-shaped" packages with a rectangular label located near the top of the package including a "wave" background design. 10. Plaintiff's products are packaged in subject matter groupings named, for example,

Princess, Rainforest and Rockbandz. These products are copyrighted and are covered by U. S. Copyright Registrations. Defendants' products are packaged in subject matter groupings named, for example, Princess, Rain Forest and Rocker. Defendants' product packages illustrate and include products which are shaped similarly to the copyrighted product designs included in Plaintiff's respectively named packages.

COUNT 1 ­ COPYRIGHT INFRINGEMENT 11. Plaintiff hereby incorporates the allegations contained in paragraphs 1 through 10

above as though fully set forth herein.

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12.

Defendants have sold and are selling copies of Plaintiff's copyrighted products, in

violation of 17 USC §501, resulting in harm including, but not limited to, damages to Plaintiff's profits, sales, and business. 13. As a direct and proximate result of Defendants' infringement of Plaintiff's

copyrighted products, in violation of 17 USC §501, Plaintiff has suffered, and continues to suffer, damages to its profits, sales, and business.

COUNT 2 ­ TRADE DRESS INFRINGEMENT AND UNFAIR COMPETITION 14. Plaintiff hereby incorporates the allegations contained in paragraphs 1 through 13

above as though fully set forth herein. 15. Plaintiff's pillow-shaped product package is widely recognized by consumers and

has become a valuable indicator of the source and origin of Plaintiff's products. 16. Defendants' use in commerce of a pillow-shaped package confusingly similar to

that of Plaintiff is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of Defendants with Plaintiff, or as to the origin, sponsorship, or approval of Defendants' goods, services, or commercial activities with Plaintiff in violation of 15 USC § 1125(a) (§ 43(a) of the Lanham Act). 17. As a direct and proximate result of Defendants' infringement of Plaintiff's trade

dress, Plaintiff has suffered and continues to suffer damages to its profits, sales, and business.

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PRAYER FOR RELIEF WHEREFORE, Plaintiff demands judgment and relief against Defendants and respectfully requests that this Court: A. USC § 501; B. Find that Defendants have engaged in trade dress infringement and unfair Find that Defendants have engaged in copyright infringement in violation of 17

competition in violation of 15 USC § 1125(a) (§ 43(a) of the Lanham Act); C. Find that Defendants have willfully infringed Plaintiff's copyrights and trade

dress, with full knowledge of Plaintiff's use of and rights; D. E. Enter judgment for Plaintiff on all Counts of the Complaint; Pursuant to 17 USC § 502, temporarily, preliminarily, and permanently enjoin,

restrain, and forbid Defendants, and all of Defendants' principals, servants, officers, directors, partners, agents, representatives, shareholders, employees, affiliates, successors, and assignees and all others acting in privity, concert, or participation with Defendants, from: (i). imitating, copying, duplicating or otherwise making any use of

Plaintiff's copyrighted product designs; (ii). assisting, aiding or abetting another person or business entity in

engaging or performing any of the activities enumerated in sub-paragraph (i) above; F. Pursuant to 17 USC § 504 and 505, award Plaintiff in excess of $25,000,

including, but not limited to, (1) the Defendants' profits, (2) any damages sustained by the Plaintiff, and (3) the costs of the action plus interest as a result of Defendants' infringements; G. Pursuant to 15 USC § 1116 (§ 34 of the Lanham Act), temporarily, preliminarily

and permanently enjoin, restrain and forbid Defendants, and all of Defendants' principals,

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servants, officers, directors, partners, agents, representatives, shareholders, employees, affiliates, successors and assignees and all others acting in privity, concert or participation with Defendants, from: (i). imitating, copying, duplicating or otherwise making any use of

Plaintiff's trade dress, or any trade dress confusingly similar to or likely to dilute the distinctiveness of Plaintiff's trade dress in any manner; (ii). using any false designation of origin or false description which can

or is likely to lead the trade or public, or individual members thereof, to mistakenly believe that any product advertised, promoted, offered or sold by Defendants is sponsored, endorsed, connected with, approved by, or authorized by Plaintiff; (iii). causing likelihood of confusion or injury to Plaintiff's business

reputation and to the distinctiveness of Plaintiff's trade dress by any unauthorized use of the same; (iv). engaging in any activity constituting unfair competition with

Plaintiff or with Plaintiff's rights in, or to use, or to exploit the same; (v). assisting, aiding or abetting another person or business entity in

engaging or performing any of the activities enumerated in sub-paragraphs (i)-(iv) above; H. Pursuant to 15 USC § 1118 (§ 36 of the Lanham Act), enter an order requiring

Defendants and all of its principals, servants, officers, directors, partners, agents, representatives, shareholders, employees, affiliates, successors, assignees and all others acting in privity, concert or participation with Defendants, who receive actual notice of said order, to deliver up all goods and products, signs, articles, items, and promotional, advertising, and any other printed materials of any kind bearing on Plaintiff's trade dress to the Court for destruction;

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I.

Pursuant to 15 USC § 1117(a), (§ 35 of the Lanham Act), award Plaintiff in

excess of $25,000, including, but not limited to, (1) the Defendants' profits, (2) any damages sustained by the Plaintiff, and (3) the costs of the action plus interest as a result of Defendants' infringements and unfair competition; J. Pursuant to 15 USC § 1117(a), find that this is an exceptional case and award

Plaintiff reasonable attorneys' fees; K. Pursuant to 15 USC § 1117(b), award the Plaintiff three times the amount of

actual damages or profits by virtue of the willful nature of the Defendants' acts. L. Order an accounting by Defendants of any profits derived in any way from

Defendants' wrongful acts. M. Award such other and additional relief, at law or equity, as may be warranted by

the facts and the law.

DEMAND FOR JURY TRIAL Plaintiff hereby demands a trial by jury for all claims properly heard by a jury.

Respectfully submitted, MACMILLAN, SOBANSKI, & TODD, LLC SPENGLER NATHANSON P.L.L.

/s/ Byron S. Choka Robert M. Leonardi (0006530) [e-mail] Richard S. MacMillan (0003109) [e-mail] MACMILLAN, SOBANSKI, & TODD, LLC
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One Maritime Plaza, Fifth Floor 720 Water Street Toledo, OH 43604 [phone] [phone] (facsimile) and Byron S. Choka (0014249) [e-mail] Jennifer A. Coletta (0084842) [e-mail] SPENGLER NATHANSON P.L.L. Four SeaGate, Suite 400 Toledo, OH 43604-2622 Telephone: [phone] Telecopier: 419-241-8599 Attorneys for Plaintiff BCP Imports, LLC
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