Herman Miller v. King's Mark Et. Al

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

HERMAN MILLER, INC., a Michigan corporation Plaintiff, v. THE KING’S MARK, LLC, a California limited liability corporation, CUBE KING, INC. d/b/a CUBEKING, a California corporation, OFFICE FURNITURE DISCOUNTERS, INC. d/b/a/ OFFICE FURNITURE OUTLET, a California corporation, MARK STEINBERG, an individual, FRANK RAWSON, an individual, MICHAEL SHIMEK, an individual, and DEREK DELLAFOSSE, an individual d/b/a REUSEACUBE, Defendants.

Case No. 1:13-cv-00411 JURY TRIAL DEMANDED

COMPLAINT

Herman Miller, Inc. ( “Herman Miller” or “Plaintiff”), for its Complaint against The

King’s Mark, LLC (“King’s Mark”), Cube King, Inc. d/b/a CubeKing (“CubeKing”), Office

Furniture Discounters, Inc. d/b/a Office Furniture Outlet (“OFO”), Mark Steinberg, Frank

Rawson, Michael Shimek, and Derek Dellafosse d/b/a Reuseacube (collectively

“Defendants”), states and alleges as follows:

NATURE OF THE ACTION

1. This is an action for violation of the laws of the United States relating to

federal trade dress infringement, counterfeiting, unfair competition, and trademark

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dilution in violation of the Lanham Act, 15 U.S.C. §§ 1114(1), 1125(a), and 1125(c);

violation of the Michigan Consumer Protection Act, Mich. Com. Laws § 445.903; unfair

competition under Michigan common law; patent infringement in violation of 35 U.S.C. §

271, and civil conspiracy under Michigan common law.

2. This action results from Defendants’ unauthorized manufacture,

importation, distribution, offer for sale, sale, and/or use of chairs, including the Cloud

Chair, that infringe Herman Miller’s federally registered trade dress for the shape and

appearance of Herman Miller’s famous AERON® chair and Herman Miller’s patents.

THE PARTIES

3. Plaintiff, Herman Miller, is a Michigan corporation with its principal place of

business at 855 East Main Avenue, Zeeland, Michigan 49464. Herman Miller is a

worldwide leader in the design and manufacture of products for the home, office,

healthcare, and educational environments.

4. On information and belief, Defendant King’s Mark is a California

corporation with a business address at 1401 Village Way, Santa Ana, California 92705.

5. On May 16, 2012, Defendant King’s Mark filed intent-to-use U.S.

Trademark Application Serial No. 85/626,952 for the mark “Cloud Chair and design.”

The correspondence information provided in the application filed by King’s Mark

included the following phone and fax numbers and email addresses: 714-953-5464

(phone), 714-953-5414 (fax), [email protected], and [email protected]. See

Exhibit A attached hereto.

6. On information and belief, Defendant Frank Rawson is a California

resident and is Controller of King’s Mark. Id.

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7. On information and belief, Defendant Michael Shimek is a California

resident and currently is or has been a Managing Member of Defendant King’s Mark.

8. On information and belief, Defendant CubeKing is a California corporation

with a business address at 1401 Village Way, Santa Ana, California 92705, the same

address as King’s Mark. On further information and belief, CubeKing can be reached

via telephone at (714) 953-5464, the same telephone number listed in King’s Mark’s

trademark application for “Cloud Chair and design.” See Exhibit B attached hereto.

9. On information and belief, Mark Steinberg is the owner of Defendant

CubeKing and is a resident of California. On further information and belief, Defendant

Steinberg can be reached at the email address [email protected].

10. On information and belief, Defendant Frank Rawson also is an employee,

representative, or agent of CubeKing and can be reached at the email address

[email protected], an email address listed in King’s Mark’s trademark application for

“Cloud Chair and design.”

11. On information and belief, Defendant Michael Shimek also is an

employee, representative or agent of CubeKing and can be reached at the email

address [email protected], an email address listed in King’s Mark’s trademark

application for “Cloud Chair and design.”

12. On information and belief, Defendants King’s Mark and CubeKing have

common owners, employees, representatives, and/or agents, including Defendants

Mark Steinberg, Frank Rawson, and Michael Shimek.

13. On information and belief, Defendant OFO is a California corporation with

a business address at 421 N. Cota Street, Corona, California 92880.

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14. On information and belief, Defendant Derek Dellafosse does or has done

business as Reuseacube and resides at 1702 Carnegie Court, Creedmoor, North

Carolina 27522.

15. On further information and belief, Defendant Dellafosse is currently

employed by or is otherwise a sales representative or agent for King’s Mark and/or

CubeKing.

16. On information and belief, one or more of the Defendants, acting

individually and/or in active concert, manufacture, import, promote, advertise, distribute,

use, offer for sale, and/or sell office chairs, including the Cloud Chair, in direct

competition with Herman Miller.

JURISDICTION AND VENUE

17. This Court has jurisdiction over Herman Miller’s federal claims pursuant to

15 U.S.C. §1121 and 28 U.S.C. §§ 1331 and 1338. This Court also has diversity

jurisdiction pursuant to 28 U.S.C. § 1332 with the amount in controversy exceeding

$75,000.00, excluding interest and costs. This Court further has supplemental

jurisdiction over Herman Miller’s state and common law claims under 28 U.S.C. §§ 1338

and 1367 because those claims are so related to Herman Miller’s federal claims that

they form part of the same case or controversy.

18. Venue is proper in the Western District of Michigan under 28 U.S.C. §

1391 and 1400(b) because the claims arose in this District, a substantial part of the

events giving rise to the claims occurred in this District, and Defendants are doing

business in this District. Plaintiff Herman Miller has been and continues to be harmed in

this District.

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19. All Defendants are properly joined in this action under 35 U.S.C. § 299

because Defendants’ infringing acts arise out of the same transaction, occurrence, or

series of transactions relating to the making, using, importing into the United States,

offering for sale, and/or selling of the infringing Cloud Chair. Defendants further are

properly joined under 35 U.S.C. §299 because questions of fact common to all

Defendants exist.

20. This Court has personal jurisdiction over the Defendants because

Defendants are engaging in various activities within this State and this District, including

advertising, promoting, offering for sale, and selling infringing Cloud Chairs in this State

and in this District. In addition, Defendant OFO is offering for sale and selling Cloud

Chairs on its website (www.ofousa.com), which is accessible by individuals and entities

in this State and this District. The consequences of Defendants’ actions produce effects

in and directly impact this forum.

HERMAN MILLER’S INTELLECTUAL PROPERTY RIGHTS

The AERON Chair Trade Dress

21. For over eighty years, Herman Miller has been a leader in the extremely

competitive business of designing, manufacturing, and selling high-quality furniture,

including office furniture.

22. In 1991, Herman Miller recognized that most office chairs had few, if any,

distinguishing characteristics. Consequently, Herman Miller engaged world-renowned

designers to create a new office chair that was distinctively different from those of

Herman Miller’s competitors.

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23. For nearly three years, Herman Miller’s designers worked to create a

unique and distinctive office chair like no other in the marketplace. The resulting design

was the AERON chair.

24. Below is a representation of the shape and appearance of Herman Miller’s

AERON chair (hereafter the "AERON Trade Dress"):

25. The AERON Trade Dress is unique, distinctive, and non-functional. The

AERON Trade Dress is not necessary for others to compete with Herman Miller, is not

essential to the use or purpose of the AERON chair, and does not affect the cost or

quality of the AERON chair.

26. The distinctiveness of the AERON Trade Dress identifies and

distinguishes the AERON chair from office chairs offered by other companies.

27. Since long before the acts of the Defendants complained of herein, and

since at least as early as October, 1994, Herman Miller has continuously manufactured,

distributed, advertised, promoted, offered for sale, and sold the AERON chair in

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interstate commerce under Herman Miller’s registered AERON and Herman Miller

trademarks.

28. Herman Miller and its authorized dealers and retailers have expended

substantial time, effort, and money extensively advertising, promoting, and marketing

Herman Miller’s AERON chair throughout the United States, with particular emphasis on

the AERON Trade Dress. Since its introduction into the marketplace, Herman Miller’s

AERON chair has gained worldwide recognition and acclaim, and has been featured in,

for example, television commercials for well-known goods and services, feature films,

and major network television programs. Herman Miller’s AERON chair has received

extensive, unsolicited media coverage and is featured in permanent museum collections

throughout the world.

29. As a result of the extensive and continuous advertising, promotion, and

sales of the AERON chair and through favorable industry acceptance and recognition,

the consuming public and the trade have come to recognize and identify the AERON

Trade Dress with Herman Miller.

30. As a further result of the extensive and continuous advertising, promotion,

and sales of Herman Miller’s AERON chair and through favorable industry acceptance

and recognition, the AERON Trade Dress became, prior to the acts of the Defendants

complained of herein, distinctive and famous in the office furniture industry under

Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c).

31. Herman Miller is the owner of United States Trademark Registration No.

2,754,826 covering the AERON Trade Dress, which registration is legally and validly

registered on the Principal Register of the United States Patent and Trademark Office

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(“USPTO”). See Exhibit C attached hereto. A printout from the USPTO’s Trademark

Status and Document Retrieval database evidencing the status of the AERON Trade

Dress registration is attached hereto at Exhibit D.

32. Pursuant to 15 U.S.C. § 1065, Herman Miller’s federal registration is

incontestable and conclusive evidence of the validity of its AERON Trade Dress as well

as Herman Miller’s ownership and exclusive right to use the AERON Trade Dress in

connection with the goods identified in the registration certificate.

33. Herman Miller has recorded Trademark Registration No. 2,754,826

covering the AERON Trade Dress with the United States Customs and Border Patrol,

which is authorized to exclude, detain, and/or seize imported products that infringe

Herman Miller’s AERON Trade Dress registration.

34. Accordingly, Herman Miller’s AERON Trade Dress is an asset of

incalculable value as an identifier of Herman Miller, its high quality products and

services, and its goodwill.

The Herman Miller Patents

35. Herman Miller’s design and development of the AERON chair also yielded

several different innovations, which were patented by Herman Miller.

36. Herman Miller is the owner of United States Patent No. 6,386,634 (“the

�634 patent”) entitled “Office Chair,” which duly and legally issued on May 14, 2002. A

copy of the �643 patent is attached hereto at Exhibit E.


�368 patent”) entitled “Office Chair,” which duly and legally issued on May 9, 2000. A

copy of the �368 patent is attached hereto at Exhibit F.

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�901 patent”) entitled “Woven Fabric Membrane for a Seating Chair,” which duly and

legally issued on March 14, 2000. A copy of the �901 patent is attached hereto at

Exhibit G.


�282 patent”) entitled “Tilt Control Mechanism for a Chair,” which duly and legally

issued on June 30, 1998. A copy of the �282 patent is attached hereto at Exhibit H.

These four patents will be referred to collectively as the “Herman Miller Patents” herein.

DEFENDANTS’ ACTS OF TRADE DRESS INFRINGEMENT, COUNTERFEITING, UNFAIR COMPETITION, DILUTION, AND PATENT INFRINGEMENT

40. On information and belief, one or more of the Defendants individually

and/or in concert have manufactured, imported, distributed, used, offered for sale and/or

sold the Cloud Chair in this District and in interstate commerce within the United States,

without authorization from Herman Miller. Defendants’ actions complained of herein

have violated and continue to violate numerous intellectual property rights of Herman

Miller in the AERON chair as set forth below.

41. Defendant CubeKing, according to its website, is an industry leader in

office furniture liquidation and a leading source for new and used, brand name, high

quality office furniture, including cubicles, workstations, tables, desks, and chairs. See

Exhibit I attached hereto.

42. CubeKing has sold used Herman Miller AERON chairs since at least as

early as 2007. See Exhibit J attached hereto. As a result, on information and belief,

CubeKing and its officers, employees, representatives, and agents, including one or

more of Defendants Mark Steinberg, Frank Rawson, and Michael Shimek, knew about

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and became familiar with the AERON chair and the famous AERON Trade Dress long

before the acts complained of herein.

43. As set forth in paragraph 5, Defendant King’s Mark filed an intent-to-use

application to register the Cloud Chair mark and design on May 16, 2012. On January

1, 2013, the USPTO issued a Notice of Allowance for the application, and on February

6, 2013, King’s Mark filed a Statement of Use. See Exhibits K and L attached hereto.

King’s Mark’s Statement of Use asserts that the Cloud Chair and design mark was first

used on November 1, 2012 and first used in commerce on November 20, 2012. See

Exhibit L.

44. The specimens of use filed by King’s Mark with the above-referenced

Statement of Use are photographs of the box used to ship the Cloud Chair. The box

shown in one of specimens includes a drawing of the Cloud Chair, which is substantially

identical to Herman Miller’s registered AERON Trade Dress. This specimen of use is

shown below:

45. On information and belief, since at least as early as November 2012, and

notwithstanding Herman Miller’s prior rights in and to the AERON Trade Dress, King’s

Mark or one or more of the Defendants have manufactured, imported, distributed, used,

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advertised, promoted, offered for sale, and/or sold in Michigan and elsewhere in

interstate commerce, the Cloud Chair, which incorporates a shape and appearance

which is nearly identical to that of the AERON Trade Dress. A picture of the actual

Cloud Chair is shown below on the left next to the registered AERON Trade Dress on

the right.

Infringing Cloud Chair Registered AERON Chair Trade Dress

46. On information and belief, Defendant OFO has sold the Cloud Chair since

at least as early as February 9, 2013 and is currently selling the Cloud Chair at its store

in Corona, California and on its website located at www.ofousa.com. See Exhibit M

attached hereto.

47. Defendant OFO is selling the Cloud chair for $549.00, well below the list

price of a new Herman Miller Aeron chair. Id.

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48. On further information and belief, Defendant King’s Mark and/or

Defendant CubeKing have supplied and continue to supply OFO with the Cloud Chairs

that OFO is selling at its Corona, California store and on its website at

www.ofousa.com.

49. On information and belief, one or more of the Defendants also created a

Facebook® page to advertise and promote the Cloud Chair on November 9, 2012. See

Exhibit N attached hereto.

50. On information and belief, one or more of the Defendants have compared

and continue to compare the Cloud Chair to Herman Miller’s AERON chair when

advertising and promoting the Cloud Chair. On further information and belief, one or

more of the Defendants are offering the Cloud Chair for sale for nearly half the price of

the famous AERON chair. See Exhibit O attached hereto.

51. On information and belief, Defendant Dellafosse directed Anne Flanagan,

a relative of or individual associated with Defendant Dellafosse, to register the domain

name mycloudchair.com, which she registered on January 14, 2013. See Exhibit P

attached hereto.

52. On further information and belief, Defendant Dellafosse requested

registration of the domain name in order to develop a website to further advertise,

promote, offer for sale, and sell the Cloud Chair.

53. Herman Miller has never authorized, licensed, or otherwise permitted any

of the Defendants to use the AERON Trade Dress, any other confusingly similar or

dilutive variations thereof, or the inventions claimed in the Herman Miller Patents.

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54. Defendants’ misappropriation of the AERON Trade Dress is an intentional

attempt to pass off Defendants’ inferior products as Herman Miller’s high quality

AERON chairs by deceiving the relevant public, including consumers.

55. Defendants also have competed unfairly with Herman Miller. For

example, knowing Herman Miller’s long-standing and excellent reputation for producing

high quality AERON chairs, Defendants’ unfair competition, deceptive business

practices, and unauthorized use of the AERON Trade Dress is an effort to trade on the

valuable goodwill and reputation associated with the AERON Trade Dress, and is likely

to cause confusion with regard to the affiliation or connection between Herman Miller

and Defendants, and with regard to the source, sponsorship, or approval of the Cloud

Chair, all to Herman Miller’s harm and Defendants’ unjust enrichment.

56. On information and belief, Herman Miller has lost sales of the AERON

chair and corresponding profits, which it would have made but for Defendants’ infringing

and unauthorized sales of the Cloud Chair, all to the detriment of Herman Miller.

57. On information and belief, at the time Defendants first engaged in the acts

complained of herein, Defendants had actual or constructive knowledge of the Herman

Miller Patents, the AERON chair, the AERON Trade Dress, and the fame, valuable

reputation, and goodwill associated with the AERON Trade Dress. As a result, one or

more of the Defendants’ actions have been and continue to be willful and intentional

acts intending to trade on the reputation and goodwill of Herman Miller and the AERON

Trade Dress, to confuse, deceive, and mislead consumers, and to dilute the fame and

distinctiveness of the AERON Trade Dress.

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COUNT I

Federal Trade Dress Infringement

58. As the first ground for relief, Herman Miller hereby alleges infringement of

the federally registered AERON Trade Dress in violation of Section 32(1) of the Lanham

Act, 15 U.S.C. § 1114(1). Herman Miller repeats and realleges the allegations of

paragraphs 1 through 57, as though fully set forth herein.

59. Defendants’ unauthorized use in commerce of the AERON Trade Dress in

connection with the Cloud Chair, as described herein, is likely to cause confusion,

mistake or deception as to the source, sponsorship or approval of Defendants’ products

by Herman Miller. The consuming public and the trade are likely to believe that

Defendants’ Cloud Chair originates with Herman Miller, is licensed, sponsored or

approved by Herman Miller, or is in some way connected with or related to Herman

Miller, in violation of §32(1) of the Lanham Act, 15 U.S.C. § 1114(1), as amended.

60. Defendants’ unauthorized and infringing use of the AERON Trade Dress,

as alleged herein, constitutes intentional and willful infringement of Herman Miller’s

rights in and to its federally registered AERON Trade Dress in Violation of §32(1) of the

Lanham Act, 15 U.S.C. § 1114(1), as amended.

61. Said infringing acts have occurred in interstate commerce and have

caused, and unless enjoined by this Court will continue to cause, serious and

irreparable injury to Herman Miller, including in this District, for which Herman Miller has

no adequate remedy at law.

62. Defendants’ above actions were, and are, willful, fraudulent, and

malicious. Plaintiff, therefore, is entitled to an award of exemplary, enhanced, or

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punitive damages in an amount appropriate to punish Defendants and deter others from

engaging in similar misconduct.

COUNT II

Federal Trademark Counterfeiting

63. As the second ground for relief, Herman Miller hereby alleges trademark

counterfeiting in violation of Section 32(1) of the Lanham Act, 15 U.S.C. § 1114(1).

Herman Miller repeats and realleges the allegations of paragraphs 1 through 62, as

though fully set forth herein.

64. Defendants’ unauthorized and infringing acts complained of herein

constitute the reproduction, counterfeit and copy and/or use of a reproduction,

counterfeit or copy in commerce of Herman Miller’s AERON Trade Dress in violation of

§32(1) of the Lanham Act, 15 U.S.C. § 1114(1).

65. Defendants’ acts of counterfeiting constitute intentional and willful

infringement of Herman Miller’s rights in and to its federally registered AERON Trade

Dress in violation of §32(1) of the Lanham Act, 15 U.S.C. § 1114(1), as amended.

66. Said acts of counterfeiting have occurred in interstate commerce and have








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COUNT III

Federal Unfair Competition

68. As the third ground for relief, Herman Miller hereby alleges federal unfair

competition in violation of Section 43(a)(1) of the Lanham Act, 15 U.S.C. § 1125(a)(1).

Herman Miller repeats and realleges the allegations of paragraphs 1 through 67, as

though fully set forth herein.


connection with the Cloud Chair, as described herein, is likely to cause confusion, to

cause mistake, or to deceive as to the affiliation, connection, or association of

Defendants with Herman Miller, or as to the origin, sponsorship, or approval of

Defendants’ goods by Herman Miller in violation of Section 43(a)(1) of the Lanham Act,

15 U.S.C. § 1125(a)(1).


as alleged herein, constitutes intentional and willful infringement of Herman Miller’s

rights in and to its AERON Trade Dress in Violation of §43(a) of the Lanham Act, 15

U.S.C. § 1125(a), as amended.


as alleged herein, constitutes intentional and willful unfair competition in violation of

Herman Miller’s rights.

72. Said infringing acts have occurred in interstate commerce and have




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COUNT IV

Federal Dilution

74. As the fourth ground for relief, Herman Miller hereby alleges federal

dilution in violation of Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c). Herman

Miller repeats and realleges the allegations of paragraphs 1 through 73, as though fully

set forth herein.

75. Prior to the acts of Defendants complained of herein, the AERON Trade

Dress, became distinctive and famous within the meaning of Section 43(c) of the

Lanham Act, 15 U.S.C. § 1125(c).

76. Defendants’ commercial sale and use of the Cloud Chair in commerce, as

alleged herein, has caused and continues to cause dilution of the distinctive quality of

the AERON Trade Dress in violation of Section 43(c) of the Lanham Act, 15 U.S.C. §

1125(c).

77. Defendants’ unauthorized use of the AERON Trade Dress, as alleged

herein, constitutes intentional and willful dilution of the AERON Trade Dress.

78. Said acts of dilution have occurred in interstate commerce and have




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COUNT V

Violation of the Michigan Consumer Protection Act

80. As the fifth ground for relief, Herman Miller hereby alleges violation of the

Michigan Consumer Protection Act, Mich. Comp. Laws § 445.903. Herman Miller

repeats and realleges the allegations of paragraphs 1 through 79, as though fully set

forth herein.


connection with the Cloud Chair, as described herein, is causing a probability of

confusion or misunderstanding as to the source, sponsorship, approval, and/or

confusion of Defendants’ Cloud Chairs. The consuming public is likely to believe that

Defendants’ Cloud Chair originates with Herman Miller, is licensed, sponsored or

approved by Herman Miller, or in some way connected with or related to Herman Miller.

82. Defendants’ unauthorized use of the AERON Trade Dress, as alleged

herein, has caused and is likely to cause in the future, a public injury and a detrimental

effect on consumers by causing confusion as to the origin or sponsorship of

Defendants’ inferior Cloud Chair, all in violation of the Michigan Consumer Protection

Act, Mich. Comp. Laws § 445.903.

83. Said unauthorized acts have occurred in Michigan, have caused, and

unless enjoined by this Court, will continue to cause, serious and irreparable damage, in

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an amount yet to be determined, for which Herman Miller has no adequate remedy at

law.





COUNT VI

Violation of Michigan Common Law of Unfair Competition

85. As for the sixth ground for relief, Herman Miller hereby alleges unfair

competition in violation of Michigan common law. Herman Miller repeats and realleges

the allegations of paragraphs 1 through 84, as though fully set forth herein.

86. As a result of its actions complained of herein, Defendants have caused

confusion, or are likely to cause confusion or mistake, or to deceive members of the

consuming public and the trade. Defendants have misappropriated valuable property

rights of Herman Miller and are trading on the goodwill symbolized by the AERON

Trade Dress. Said acts, which are willful, constitute unfair competition in violation of the

common law of the State of Michigan.

87. Said unauthorized acts have occurred in Michigan, have caused, and

unless restrained by this Court, will continue to cause serious and irreparable damage

in an amount yet to be determined, for which Herman Miller has no adequate remedy at

law.



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COUNT VII

Infringement of U.S. Patent No. 6,386,634

89. As the seventh ground for relief, Herman Miller hereby alleges patent

infringement in violation of the laws of the United States relating to patents, Title 35 of

the United States Code. Herman Miller repeats and realleges the allegations of

paragraphs 1 through 88, as though fully set forth herein

90. Herman Miller is the owner of the �634 patent, which duly and legally

issued on May 14, 2002.

91. Defendants have infringed, and are now directly infringing, one or more

claims of the �634 patent within this District and elsewhere within the United States

through their manufacture, importation, use, offer for sale, and/or sale of the Cloud

Chair.

92. On information and belief, Defendants have not only directly infringed the

�634 patent, but also induced others to infringe and/or contributed to the infringement

of at least one claim of the �634 patent in violation of 35 U.S.C. § 271.

93. On further information and belief, Defendants intentionally took steps to

induce and/or contribute to the infringement of the �634 patent by sales

representatives, customers, and other users of the Cloud Chair, with knowledge or

willful blindness of that infringement by others, including such steps as: arranging or

contracting for the manufacture, assembly, and/or distribution of the Cloud Chair for

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infringing sales and/or use and marketing and promoting the Cloud Chair in this State

and in this District.

94. On information and belief, Defendants knew that the Cloud Chair,

including the linkage assembly for tilting the chair, was especially made or adapted for

use in infringing the �634 patent.

95. On information and belief, the Cloud Chair, including the linkage

assembly, is not capable of a substantial use that does not infringe the �634 patent.

96. On information and belief, Defendants have worked in conjunction with

each other and/or their sales representatives, suppliers, and distributors to manufacture,

offer to sell, sell, import, and/or distribute the infringing Cloud Chair.

97. Defendants will continue to infringe the �634 patent unless enjoined by

this Court.

98. On information and belief, at the time Defendants first engaged in

infringement of the �634 patent, Defendants had actual or constructive knowledge of

the patent. As a result, Defendants’ infringement of the �634 patent has been and

continues to be willful and wanton.

99. Herman Miller has been irreparably damaged, including in this District, in

an amount yet to be determined, by Defendants’ acts of infringement and will continue

to be damaged by such acts in the future unless and until enjoined by this Court.

100. Given Defendants’ willful, fraudulent, and malicious conduct, Plaintiff, is

entitled to an award of exemplary, enhanced, or punitive damages in an amount

appropriate to punish Defendants and deter others from engaging in similar misconduct.

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COUNT VIII


101. As the eighth ground for relief, Herman Miller hereby alleges patent





issued on May 9, 2000.




Chair.









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including the seat portion, was especially made or adapted for use in infringing the

�368 patent.

107. On information and belief, the Cloud Chair, including the seat portion, is

not capable of a substantial use that does not infringe the �368 patent.





this Court.








112. Given Defendants’ willful, fraudulent, and malicious conduct, Plaintiff is



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COUNT IX


113. As the ninth ground for relief, Herman Miller hereby alleges patent





issued on March 14, 2000.




Chair.









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including the woven fabric membrane, was especially made or adapted for use in

infringing the �901 patent.

119. On information and belief, the Cloud Chair, including the woven fabric, is

not capable of a substantial use that does not infringe the �901 patent.





this Court.











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COUNT X


125. As the tenth ground for relief, Herman Miller hereby alleges patent





issued on June 30, 1998.

127. Defendants have infringed, and are now directly infringing one or more



Chair.









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including the tilting mechanism for the chair. was especially made or adapted for use in

infringing the �282 patent.

131. On information and belief, the Cloud Chair, including the tilting

mechanism, is not capable of a substantial use that does not infringe the �282 patent.





this Court.











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COUNT XI

Civil Conspiracy

137. As the eleventh ground for relief, Herman Miller hereby alleges civil

conspiracy in violation of the laws of the State of Michigan. Herman Miller repeats and

realleges the allegations of paragraphs 1 through 136, as though fully set forth herein.

138. As set forth above, Defendants are members of a combination of two or

more persons.

139. The object of the combination was and continues to accomplish an

unlawful purpose by unlawful means, including the tortious taking, use and

diminishment of Herman Miller’s intellectual property and other rights through the

unlawful means described above.

140. Defendants had a meeting of the minds and have acted in concert on the

object or course of action, including the participation in the conspiracy.

141. One or more of the members of the conspiracy committed an unlawful,

overt act(s) and continue to commit those acts to further the object or course of action of

the conspiracy.

142. As a direct and proximate result of the Defendants’ wrongful conduct,

Plaintiffs have suffered and will continue to suffer incalculable financial loss, loss of

goodwill, loss of customers, and other damages.

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143. Plaintiff has suffered irreparable harm as a result of Defendants’ actions

as described herein, and Defendants’ actions have been done intentionally and with

conscious disregard for the law.

144. Plaintiff, therefore, is entitled to an award of exemplary, enhanced, or



WHEREFORE, Herman Miller prays that this Court enter the following judgment and

order:

A. That Defendants have violated Sections 32(a), 43(a), and 43(c) of the

Lanham Act, have violated the Michigan Consumer Protection Action, Section 445.903,

and have committed acts of unfair competition in violation of the common law of

Michigan.

B. That Defendants have infringed U.S. Patent Nos. 6,386,634, 6,059,368,

6,035,901, and 5,772,282;

C. That Defendants have engaged in an unlawful civil conspiracy in violation

of the common law of Michigan;

D. The Defendants their officers, directors, agents, servants, employees,

successors, distributors, assigns and attorneys, and all those controlled by or in active

concert or participation with them, be preliminarily and permanently enjoined and

restrained from:

1. Further infringement of U.S. Trademark Registration No. 2,754,826;

2. Further infringement of U.S. Patent Nos. 6,386,634, 6,059,368, 6,035,901,

and 5,772,282;

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3. Manufacturing, importing in to the United States, distributing, advertising,

promoting, offering for sale, and selling the Cloud Chair or any other

product, design or configuration, that gives rise to a likelihood of

confusion, mistake, or deception with respect to the AERON Trade Dress

or in any way dilutes Herman Miller’s famous AERON Trade Dress;

4. Trading on the goodwill associated with the AERON Trade Dress and

passing off their goods as those of Herman Miller;

5. Injuring Herman Miller’s business reputation and goodwill associated with

the AERON Trade Dress and otherwise unfairly competing with Herman

Miller in any manner whatsoever;

6. Engaging in deceptive trade practices with regard to importing,

distributing, advertising, marketing, promoting, offering for sale, and selling

the Cloud Chair, the AERON Chair, or other Herman Miller products;

7. Making any false or misleading descriptions or misrepresentations of fact

relating to the Cloud Chair, AERON chair, or other Herman Miller

products; and

8. Doing any other act or thing likely to cause or induce the mistaken belief

that Defendants are in any way affiliated, associated with, or sponsored by

Herman Miller.

E. That, pursuant to 15 U.S.C. § 1118, Defendants be ordered to deliver up

to Herman Miller or destroy all products, labels, packages, brochures, wrappers,

advertisements, promotions, displays, catalogs, Internet web pages, literature, and all

other matter, whether in paper or electronic form, in the custody or under the control of

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Defendants that constitute, bear, or depict the Cloud Chair, or any other unauthorized

use of the AERON Trade Dress, or any confusingly similar variation thereof;

F. That, pursuant to 15 U.S.C. §§ 1116(d) and 1118, all counterfeits of

Herman Miller’s AERON Trade Dress, the means of making such goods, including, all

dies, molds, and equipment, and records documenting the manufacture, sale, or receipt

of things involved in such counterfeit violation, including paper and electronic

documents, be seized and subject to destruction;

G. That, pursuant to 15 U.S.C. §§ 1116, Defendants be directed to file with

the Court and serve on Herman Miller within thirty (30) days after issuance of an

injunction, a report in writing and under oath setting forth in detail the manner and form

in which Defendants have complied with the injunction;

H. That, pursuant to 15 U.S.C. §1117 Herman Miller be awarded monetary

relief in an amount fixed by the Court in its discretion as just, including:

1. All profits received by Defendants from sales and revenues of any kind

made as a result of acts of trade dress infringement, unfair competition,

and dilution, said amount to be trebled due to Defendants’ willful actions;

2. All damages sustained by Herman Miller as a result of Defendants’

actions, said damages to be trebled due to Defendants’ willful actions; and

3. If Herman Miller so elects, statutory damages of up to $1,000,000 per

counterfeit mark, per type of goods sold, offered for sale, or distributed.

I. That Defendants be ordered to compensate Herman Miller for the

advertising and other expenditures necessary to dispel any public confusion caused by

Defendants’ unlawful acts complained of herein;

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J. That, pursuant to 35 U.S.C. § 284, Defendants be ordered by this Court to

account for and pay to Herman Miller damages adequate to compensate Herman Miller

for the infringement of United States Patent Nos. 6,386,634, 6,059,368, 6,035,901, and

5,772,282, said damages to be increased up to three times the amount found or

assessed in view of the willful nature of the continued infringement of said patents;

K. That, because of the exceptional nature of this case resulting from

Defendants’ deliberate and willful actions, this Court award to Herman Miller all

reasonable attorneys' fees, costs, and disbursements incurred by it as a result of this

action, pursuant to 35 U.S.C. § 285 and 15 U.S.C. § 1117;

L. That, pursuant to Michigan common law, Defendants be ordered by this

Court to pay Herman Miller damages to compensate Herman Miller for the unlawful acts

committed as a result of Defendants’ conspiring to infringe Herman Miller’s patent

rights, trademark rights, and other intellectual property rights in the AERON chair; and

M. That Herman Miller be awarded any such other and further relief as this

Court deems just and fair.

DEMAND FOR JURY TRIAL

Pursuant to Fed. R. Civ. P. 38(b), Herman Miller demands trial by jury in this

action on all issues so triable.

Dated: April 15, 2013 Respectfully submitted,

By: __/James K. Cleland/_______ James K. Cleland BRINKS HOFER GILSON & LIONE 524 South Main Street, Suite 200 Ann Arbor, Michigan 48104 Tel. 734.302.6000

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Fax 734.994.6331

Laura Beth Miller Katherine L. Tabor BRINKS HOFER GILSON & LIONE 455 N. Cityfront Plaza Drive NBC Tower, Suite 3600 Chicago, Illinois Tel. 312.321.4200 Fax 312.321.4299

Counsel for Plaintiff Herman Miller, Inc.

Documents

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