BDI v. Big Lots - Complaint

8/13/2019 BDI v. Big Lots - Complaint

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

BUYERS DIRECT INC., )

)Plaintiff, )

)

v. ) Case No.)

BIG LOTS STORES, INC., ) Plaintiff Demands Trial by Jury

)

Defendant. ))

COMPLAINT

Plaintiff Buyers Direct Inc. (BDI) brings this action against Big Lots Stores, Inc. (Big

Lots or Defendant) for infringing BDIs design patent and misappropriating snoozies!

trade

dress, causing consumer confusion, and engaging in unfair competition. Because Defendant sold

or offered for sale products infringing BDIs patent, copied its trade dress, confused consumers

and engaged in unfair competition (and continues to do so), BDI seeks damages, an accounting,

the imposition of a constructive trust upon Defendants illegal profits and injunctive relief.

THE PARTIES

1. BDI is a North Carolina corporation with its principal place of business in Wilson, NorthCarolina.

2. Big Lots is an Ohio corporation with its principal place of business and principal office at300 Phillipi Road, Columbus, Ohio 43228-5311, and may be served with process through

its registered agent, Corporation Service Company, 327 Hillsborough St., Raleigh, NC

27603.

5:13-cv-818

Case 5:13-cv-00818-FL Document 1 Filed 11/26/13 Page 1 of 11


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JURISDICTION AND VENUE

3. This is an action for design patent infringement under 35 U.S.C. 271, trade dressinfringement and unfair competition under 43(a) of the Trademark Act of 1946, as

amended (the Lanham Act), and unfair competition under North Carolina statutory and

common law.

4. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. 1331 and 1338, and 15 U.S.C. 1121. Because the state law claims are so related to

BDIs claims under federal law that they form part of the same case or controversy and

derive from a common nucleus of operational facts, this Court has supplemental

jurisdiction over BDIs claims based on state law pursuant to 28 U.S.C. 1367(a).

5. This Court has personal jurisdiction over Big Lots because it (a) has sold infringingproducts and committed unfair competition in the state of North Carolina, within the

Eastern District of North Carolina; (b) has purposefully directed its activities toward the

state of North Carolina; and (c) has established systematic and continuous contacts with

the state of North Carolina, including maintaining retail stores in the Eastern District of

North Carolina.

6. Venue is proper in this District pursuant to 28 U.S.C. 1391 and 1400 because Big Lotshas sold and offered to sell infringing products in this District, and Big Lots has a

sufficient connection with the Eastern District of North Carolina to make venue proper in

this District, all as alleged in this Complaint.

BACKGROUND

7. BDI is a supplier of retail products, including the patented foot-covering known assnoozies!

in the United States and in particular, North Carolina. BDI has achieved



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market success for snoozies!

because of the distinctive and unique design of the

snoozies!product.

8. Since the fall of 2008, snoozies!have been offered for sale in many retail outlets andspecialty retailers throughout North Carolina and in a number of different states.

9. BDI has promoted and advertised snoozies!products in various trade publications and attrade shows that publicize and promote the sale of such retail soft goods.

10.On August 18, 2009, United States Design Patent No. D598,183 (the 183 Patent),directed to the ornamental appearance of a slipper, was duly and legally issued by the

United States Patent and Trademark Office. A copy of the 183 Patent is attached as

Exhibit A.

11. On December 22, 2009, Marshall P. Bank, the sole inventor of the 183 Patent, assignedall rights in the 183 Patent to BDI. Since that date, BDI has been, and still is, the owner

of the 183 Patent.

12.BDI is the exclusive authorized manufacturer and distributor of products embodying thedesign of the 183 Patent in the retail market in the United States.

BDIS CONTACT WITH BIG LOTS AND BIG LOTS INFRINGEMENT

13.In June of 2013, Big Lots contacted BDI and inquired about selling snoozies! in BigLots stores. BDI declined to enter into any contract with Big Lots or otherwise authorize

the sale of snoozies!

in Big Lots stores.

14.Between June of 2013 and October of 2013, BDI did not have any additionalcommunication with Big Lots.



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15.In October, 2013, BDI learned that Big Lots was using, selling, and offering for sale ininterstate commerce a retail slipper product called Slipper Grips. Slipper Grips are

slippers that infringe BDIs patent and trade dress rights.

16.At that time, BDI notified Big Lots of its infringement of the 183 Patent and BDIs tradedress.

17.Notwithstanding its knowledge of the 183 Patent and the infringement, Big Lotscontinues to use, sell, or offer for sale Slipper Grips, thereby intentionally infringing the

183 Patent and BDIs trade dress.

18.The purpose of this action, inter alia, is to cause Big Lots to cease and desist in offering

Slipper Grips for sale and distribution and to enjoin Big Lots from continuing to offer the

infringing product for sale at any Big Lots store.

COUNT 1

(INFRINGEMENT OF U.S. PATENT NO. D598,183)

19.BDI repeats and reincorporates by reference the allegations set forth in paragraphs 1through 18, inclusive.

20.Defendant is and has been infringing the 183 Patent by using, selling, and/or offering tosell a product called Slipper Grips.

21.As a direct result of Defendants infringement of the 183 Patent, BDI has sufferedirreparable injury and monetary damages. If Defendants infringement is not permanently

enjoined, BDI will continue to suffer irreparable injury and monetary damages.

22.Upon information and belief, Defendants infringement of the 183 Patent is intentional,willful, and wanton under 35 U.S.C. 284, and makes this an exceptional case under 35

U.S.C. 285.



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COUNT II

(TRADE DRESS INFRINGMENT)


24.BDIs snoozies!have a distinctive, immediately recognizable and non-functional overalllook and feel that constitutes protectable trade dress that distinguishes BDIs foot-

coverings from those of competitors. The foot-coverings, which are presented outside of

packaging, are made of a soft, malleable material on both the top and bottom portions of

the foot-covering, the soft, malleable top portion is formed into a wide, rounded covering

over the top of the foot that extends over the toes, and a protrusion of fleece material

extends out from and floats above the foot entry of the foot-covering. An annotated

image of BDIs snoozies!highlighting the above-described features is shown below.

Protrusion of fleece material extends out fromand floats above the foot entry

Soft, malleable material on both thetop and bottom portions of the foot-

covering

Soft malleable top portion formedinto a wide, rounded covering over

the top of the foot that extends overthe toes



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25.BDI invested significant time, money and effort in developing snoozies!foot-coverings,resulting in significant commercial success and public recognition of its distinctive

design, appearance and trade dress.

26.As a result of BDIs advertising and promotion of snoozies!foot-coverings by itself andothers, the trade and purchasing public have come to associate the distinctive trade dress

of snoozies!with a single producer or source. Accordingly, the snoozies!

trade dress

has acquired secondary meaning in the marketplace as to the origin of the product.

27.The distinctive trade dress of snoozies!is non-functional and ornamental.



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28.Defendant has sold or offered for sale, and continues to sell or offer for sale SlipperGrips, which copy and are confusingly similar in appearance to the trade dress of

snoozies!, and therefore are likely to deceive and confuse the purchasing public as to the

source or origin of Slipper Grips in violation of 15 U.S.C. 1125(a).

29.Defendant has engaged in wrongful conduct with the willful purpose of misleading,deceiving or confusing customers and the public as to the origin and authority of the

Slipper Grips, thereby trading on BDIs goodwill, reputation and creative designs.

30.Defendants conduct constitutes willful infringement of BDIs protectable trade dress,making this an exceptional case within the meaning of 15 U.S.C. 1117.

31.Defendants infringing activity has caused BDI irreparable injury and monetary damages.32.If Defendants infringements are not permanently enjoined, BDI will continue to suffer

irreparable injury and monetary damages.

33.BDI has no adequate remedy at law for Defendants wrongful conduct because (a) BDIsunique snoozies!

design patent and trade dress have no readily determined market value;

(b) Defendants sale and offers for sale of the imitation slipper design constitutes such

harm that BDI cannot be made whole by any monetary award alone; and (c) Defendants

wrongful conduct is continuing, notwithstanding its knowledge of the established trade

dress.

COUNT III

UNFAIR AND DECEPTIVE TRADE PRACTICES UNDER NORTH CAROLINA

LAW N.C. GEN STAT 75-1.1




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35.BDI is based in North Carolina and is therefore entitled to the protections afforded underthe laws of the State of North Carolina.

36.BDI invested significant money and effort in advertising and promoting snoozies!foot-coverings and as a result, snoozies!

are associated with BDI by the trade and purchasing

public.

37.The acts and conduct of Defendant as alleged above constitute unfair methods ofcompetition and unfair or deceptive acts or practices in or affecting North Carolina

commerce, as defined by N.C. Gen. Stat. 75-1.1.

38.As a direct and proximate result of Defendants conduct, BDI has suffered and will

continue to suffer substantial pecuniary damages, including but not limited to losses and

damages in an amount to be determined at trial. Defendants conduct justifies an award of

treble damages pursuant to N.C. Gen. Stat. 75-16.

39.Because much of the damage suffered by BDI as a result of Defendants conduct is andwill be irreparable, for which BDI has no adequate remedy at law, BDI is further entitled

to preliminary and permanent injunctive relief.

40.Defendant has willfully engaged in the acts and practices alleged in this Complaint. Forthese reasons, BDI is further entitled to recover attorneys fees from Defendant under

N.C. Gen. Stat. 75-16.1(1).

COUNT IV

NORTH CAROLINA COMMON LAW

UNFAIR COMPETITION

41.BDI realleges and incorporates by reference, each and every allegation set forth inParagraphs 1 through 40, inclusive.



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42.The acts and conduct of Defendant set forth above constitutes unfair competition in NorthCarolina at common law.

43.BDI, as a result of such conduct, has suffered and will continue to suffer losses anddamages in an amount to be determined at trial.

44.As much of the damage covered by Defendants conduct is and will be irreparable, forwhich BDI has no adequate remedy at law, BDI is further entitled to preliminary and

permanent injunctive relief.

COUNT V

FOR IMPOSITION OF A CONSTRUCTIVE TRUST UPON THE ILLEGAL

PROFITS OF DEFENDANT

45.BDI realleges, and incorporates by this reference, each and every allegation set forth inparagraphs 1 through 44, inclusive.

46.Defendants conduct constitutes deceptive and wrongful conduct in the nature of passingoff the infringing materials as genuine BDI snoozies!

foot-coverings.

47.By virtue of its wrongful conduct, Defendant has illegally received money and profitsthat rightfully belong to BDI.

48.Upon information and belief, Defendant holds the illegally received money and profits inthe form of bank accounts, real property, or personal property that can be located and

traced.

49.Defendant holds the money and profits it has illegally received as constructive trustee forthe benefit of BDI.

COUNT VI

ACCOUNTING AGAINST DEFENDANT

50.BDI realleges, and incorporates by this reference, each and every allegation set forth inparagraphs 1 through 49, inclusive.



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51.BDI is entitled, pursuant to 35 U.S.C. 284, to recover any and all profits of Defendantthat are attributable to its acts of infringement.

52.BDI is entitled, pursuant to 35 U.S.C. 284, to actual damages sustained by virtue ofDefendants acts of infringement.

53.The specific amount of money due from Defendant to BDI is unknown to BDI andcannot be ascertained without a detailed accounting by Defendant of the precise number

of units of infringing material offered for distribution and distributed by Defendant.

PRAYER FOR RELIEF

WHEREFORE, BDI prays that this Court enter a judgment as follows:

1. That the Court enter an order declaring that Defendant hold in trust, as constructivetrustee for the benefit of BDI, its illegal profits obtained from its distribution of infringing

slippers, and requiring Defendant to provide BDI a full and complete accounting of all

amounts due and owing to BDI as a result of Defendants illegal activities.

2. That the Court order Defendant to pay BDIs general, special, actual, and statutorydamages as follows:

a. BDIs damages and Defendants profits pursuant to 17 U.S.C. 504(b), or in thealternative, enhanced statutory damages pursuant to 17 U.S.C. 504(c)(2), for

Defendants willful infringement;

b. BDIs damages and Defendants profits pursuant to 15 U.S.C. 1117(a), trebledpursuant to 15 U.S.C. 1117(b) for Defendants willful violation of BDIs trade

dress or, in the alternative, statutory damages pursuant to 15 U.S.C. 1117(c) for

each infringing product;

and



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c. BDIs damages and Defendants profits pursuant to North Carolina common law;3. That the Court order Defendant to pay to BDI both the costs of this action and the

reasonable attorneys fees incurred by it in prosecuting this action; and

4. That the Court grant to BDI such other and additional relief as is just and proper,including a permanent injunction pursuant to 35 U.S.C. 283 and 15 U.S.C. 1116.

JURY DEMAND

BDI demands a trial by jury on all issues.

November 26, 2013 Respectfully submitted,

/s/ Alex J. HaganAlex J. Hagan, Esq. (NC State Bar No. 19037)

ELLIS &WINTERS LLPPost Office Box 33550

Raleigh, NC 27636

Telephone: (919) 865-7000

Facsimile: (919) 865-7010Email: [email protected]

Local Civil Rule 83.1 Counsel

Andrew S. Chamberlin, Esq. (NC State Bar No. 17369)

ELLIS &WINTERS LLP

333 N. Greene Street, Suite 200Greensboro, NC 27401

Telephone: (336) 217-4193

Facsimile: (336) 217-4198

Email: [email protected]

Local Civil Rule 83.1 Counsel

Andrew M. Ollis (VA State Bar No. 39051)

Tia D. Fenton (VA State Bar No. 70078)

Special Notices of Appearance ForthcomingOBLON,SPIVAK,MCCLELLAND,

MAIER &NEUSTADT,L.L.P1940 Duke Street

Alexandria, VA 22314Telephone: (703) 413-3000

Facsimile: (703) 413-2220

Email: [email protected]



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EXHIBIT A

Case 5:13-cv-00818-FL Document 1-1 Filed 11/26/13 Page 1 of 6


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S 44 (Rev. 12/12) 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

rovided 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 theurpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant

(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

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

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

I. BASIS OF JURISDICTION(Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an X in One Box for(For Diversity Cases Only) and One Box for Defendant

1 U.S. Government 3 Federal Question PTF DEF PTF D

Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated orPrincipal Place 4

of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated andPrincipal Place 5

Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a 3 3 Foreign Nation 6

Foreign Country

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

110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act

120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 400 State Reapportionm

130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 410 Antitrust

140 Negotiable Instrument Liability 367 Health Care/ 430 Banks and Banking

150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 450 Commerce& Enforcement of Judgment Slander Personal Injury 820 Copyrights 460 Deportation

151 Medicare Act 330 Federal Employers Product Liabi lity 830 Patent 470 Racketeer Influence

152 Recovery of Defaulted Liability 368 Asbestos Personal 840 Trademark Corrupt Organizatio

Student Loans 340 Marine Injury Product 480 Consumer Credit

(Excludes Veterans) 345 Marine Product Liability LABOR SOCIAL SECURITY 490 Cable/Sat TV 153 Recovery of Overpayment Liability PERSONAL PROPERTY 710 Fair Labor Standards 861 HIA (1395ff) 850 Securities/Commod

of Veterans Benefits 350 Motor Vehicle 370 Other Fraud Act 862 Black Lung (923) Exchange

160 Stockholders Suits 355 Motor Vehicle 371 Truth in Lending 720 Labor/Management 863 DIWC/DIWW (405(g)) 890 Other Statutory Acti

190 Other Contract Product Liability 380 Other Personal Relations 864 SSID Title XVI 891 Agricultural Acts

195 Contract Product Liability 360 Other Personal Property Damage 740 Railway Labor Act 865 RSI (405(g)) 893 Environmental Matt

196 Franchise Injury 385 Property Damage 751 Family and Medical 895 Freedom of Informa

362 Personal Injury - Product Liability Leave Act ActMedical Malpractice 790 Other Labor Litigation 896 Arbitration

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 791 Employee Retirement FEDERAL TAX SUITS 899 Administrative Proc

210 Land Condemnation 440 Other Civil Rights Habeas Corpus: Income Security Act 870 Taxes (U.S. Plaintiff Act/Review or Appe

220 Foreclosure 441 Voting 463 Alien Detainee or Defendant) Agency Decision

230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 871 IRSThird Party 950 Constitutionality of

240 Torts to Land 443 Housing/ Sentence 26 USC 7609 State Statutes

245 Tort Product Liability Accommodations 530 General

290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION

Employment Other: 462 Naturalization Application 446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration

Other 550 Civil Rights Actions

448 Education 555 Prison Condition

560 Civil Detainee -

Conditions of

Confinement

V. ORIGIN(Place an X in One Box Only)

1 OriginalProceeding

2 Removed fromState Court

3 Remanded fromAppellate Court

4 Reinstated orReopened

5 Transferred fromAnother 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):

Brief description of cause:

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 SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGECase 5:13-cv-00818-FL Document 1-2 Filed 11/26/13 Page 1 of 2

BUYER'S DIRECT INC.

Alex J. Hagan, Ellis & Winters LLP,P.O. Box 33550, Raleigh, NC 27636

BIG LOTS STORES, INC.

35 U.S.C. 271

Action for design patent infringement, trade dress infringement and unfair competition.

1/26/2013 /s/ Alex J. Hagan, Rule 83.1 counsel

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JS 44 Reverse (Rev. 12/12)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority 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 as

required by law, except as provided 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 the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk o

Court 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, us

only 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 attime 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 lan

condemnation 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, noin 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 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 amendm

to 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 tak

precedence, 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, the

citizenship 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. Marksection 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 belowsufficient 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 th

one 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 fili

date.

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 o

multidistrict 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 140

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 jurisdictionstatutes 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.



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Documents

BDI v. Big Lots - Complaint