LA Rocks v Alex & Ani - Complaint

7/28/2019 LA Rocks v Alex & Ani - Complaint

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1 Milord A. Keshishian, SBN 197835rnilord(a),milordlaw .com2 Arrnen Manasserian, SBN 288199arrnen(a),milordlaw.corn3 MILORD & ASSOCIATES, P.C.2049 Century Park East, Suite 38504 Los A n g e l e ~ California 90067Tel: (3 IU) 2L6-7878

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LA GEM & JEWELRY DESIGN, INC.UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

LA GEM & JEWELRY DESIGN, c 43-.: 37 7 ~ ~ ' F lt?- INC., a California Corporation dba LA ) ROCKS, ) COMPLAINT FOR:

Plaintiff,

vs.

))))))

1. Lanham Act 43(a) UnfairCompetition and FalseAdvertising2. False Patent Marking 35 U.S.C 292

) 3. Declaration of Non-Infringement,ALEX AND ANI, LLC, a Rhode Island) Invalidity, and Unenforceability oflimited liability company, o.f'lc). OoES ) Design Patent1-1!) I l'f\c\v-s'\le, ) 4. Declaration of Trade Dress Non-

Defendant. ))) 5.)))

Infringement, Invalidity, andUnenforceabilityUnfair Competition and FalseAdvertising Under California Law

) JURY TRIAL DEMANDED

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-1-COMPLAINT- Jury Demand


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PlaintiffLA Gem & Jewelry Design, Inc. ("LA Gem") by and through its

undersigned attorneys, sues Alex and Ani, LLC ("Alex"), and alleges:

THE PARTIES1. PlaintiffLA GEM is a California corporation having a place of business in6 Los Angeles, California. LA GEM also conducts business under its LA ROCKS service7 mark.8 2. Upon information and belief, Defendant Alex is a Rhode Island limited9 liability company. Alex conducts business and sells merchandise across the country,

1 O including California and this District. Indeed, Alex boasts on its website11 that "Alex And Ani12 Conquered Los Angeles!" at its "Bangle Bar Party" sales and marketing event in Los13 Angeles, California. Further, Alex operates an e-commerce website located at

ro 14 , which distributes products throughout the United States,~ ~ 15 including California and this District.

i : ' ~ ~ 1617 JURISDICTION AND VENUE18 3. The Court has jurisdiction over the subject matter of this action pursuant to19 28 U.S.C. 1331, 1338(a), 35 U.S.C. 292, the Lanham Act, 15 U.S.C. 1125 and20 1121 et seq., and pursuant to 28 U.S.C. 220l(a) and 2202. The Court also has21 supplemental jurisdiction pursuant to 28 U.S.C. 1367(a).22 4. This Court has personal jurisdiction over Defendant Alex because, by2 3 engaging in at least the conduct itemized above, it has purposely directed its activities to2 4 California and this District and purposely availed itselfof the benefits and protections o25 the laws ofCalifornia, including this District. Further, Alex's contacts with the State of2 6 California and this District are significant and pervasive, including hosting marketing an2 7 sales events in Los Angeles, and having sales representatives, dealers, and distributors2 8 located in California and this District, and selling products directly to consumers in



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California and this District through its e-commerce website.

5. Venue is proper in this judicial distr.ict pursuant to 28 U.S.C. 139l(b) and(c), and 1400(b) because Defendants conduct business in this District, reside in thisDistrict, and/or a substantial part of the events or omissions giving rise to the claimoccurred in this District.

FACTS COMMON TO ALL COUNTS6. LA GEM is a designer and creator of ewelry whose jewelry pieces are sold

by numerous national retailers.7. In or about 2006, LA GEM independently created .an expandable bangle

jewelry r o d u c ~ based on public domain works, including designs from the Victorian er("LA Gem Bangle"). The LA Gem Bangle is soid in packaging bearing the "Love ThisLife" trademark, which mark is also displayed on at least one charm. The following is aexample of one LA Gem Bangle:

8. Although the bangle's functional portion is repeated in the LA GemBangles, LA GEM has numerous pendants moveably mounted on the bangle.

-3- 'COMPLAINT Jury Demand


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1 9. LA GEM has sold the LA Gem Pendant to its customer Kohl's Department2 Stores, Inc. ("Kohl 's") , a national retailer.3 10. On May 15, 2013, Alex, through its counsel, sent a letter to Kohl's ,4 demanding "Kohl's immediately cease[] and desist[] from any further importation, sale,5 or offer for sale of the [LA Gem Bangles] and provide[] the identity of the6 manufacturer(s) of the [LA Gem Bangles]. [Alex] also require[d] an accounting of all7 sales of the [LA Gem Bangles]." The correspondence claims that Kohl's sales of the LA8 Gem Bangles "without authorization or license" have violated Alex's intellectual9 property rights in U.S. Patent No. D498,167 (the '"167 Design Patent"), a copy ofwhic

10 is attached hereto as EXHIBIT 1. Alex further claimed that Kohl's sales ofLA Gem11 Bangles have violated its trade dress intellectual property rights and constitute unfair12

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competition, instructing Kohl's to not spoliate evidence, which is only necessary forimminent litigation purposes. A true and correct copy of said correspondence is attachehereto as EXHIBIT 2.

11. On May 24, 2013, Alex, through its counsel, sent a second letter to Kohl' sthreatening to "institut[e] a lawsuit" ifKohl's failed to respond to Alex's unfoundedinfringement demands. A true and correct copy of said correspondence is attached asExhibit 3.

12. On May 24, 2013, Kohl's demanded, based on its vendor agreement, thatLA GEM defend and indemnify Kohl's against Alex's allegations of patent and tradedress infringement, and unfair competition. On May 28, 2013, Kohl's in-house seniorcounsel emailed Alex's counsel identifying LA GEM as the vendor of the wronglyaccused products and informing him ofLA GEM's defense and indemnificationobligation.

2 5 13. Alex has filed numerous patent and trade dress infringement lawsuits again2 6 third-parties -based on the same purported patent and trade dress rights asserted agains2 7 Kohl's and LA GEM - for selling similar expandable bangles, even though its patent is2 8 invalid based on prior art in the public domain.



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14. Accordingly, Alex's threats of patent and trade dress infringement have

created an actual, substantial and justiciable case or controversy between LA GEM itsretailer Kohl's..,.. and Alex concerning the right of LA GEM to manufacture and sell theLA Gem Bangles to Kohl's and Kohl's ability to sell the LA Gem Bangles to the publicFurthermore, to the extent, if any, that apprehension of suit remains relevant toconsiderations of urisdiction for declaratory judgment, LA GEM has a reasonableapprehension of imminent suit by Alex.

15. On information and belief, in addition to making unfounded infringementclaims, Alex has falsely advertised, in interstate commerce, the scope of its invalid desigpatent and misled the public into believing that it owns a utility patent that protects thefunctional features of its bangle. Alex falsely advertises and asserts, in interstatecommerce, that "[u ]tilizing an innovative patented and completely original technology,the expandable concept replaces traditional clasps with a sliding mechanism, makingeach piece adjustable. This signature expandable feature is available in expandable wirebracelets and rings, expandable chain necklaces and endless hoop earrings." A true andcorrect copy of at least one page of Alex's website bearing the false statement is attachehereto as EXHIBIT 4.

16. On information and belief, Alex's website fails to provide the patent numbeor numbers covering the purported "innovative patented and completely originaltechnology" or disclose to the public and competitors, such as LA GEM and itscustomers and potential customers, that it only holds a design patent which cannot prote"the expandable concept [that] replaces traditional clasps with a sliding mechanism,making each piece adjustable."

17. Alex is fully aware of its false statements of patent scope and furthermisleads recipients of its unfounded cease and desist letters by sheepishly omitting acopy of the design patent, which is invalid and unenforceable.

18. As a result of Defendants' acts and false statements as alleged herein, LAGEM has and continues to suffer substantial injury and damage, and has lost gains,



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Iprofits and/or advantages, which it would otherwise have obtained, but for Defendants'acts.

COUNT ILanham Act 43(a) False Advertising and Unfair Competition

19. LA GEM hereby realleges and incorporates the allegations in paragraphs 1to 18 of the complaint as if fully set forth herein.

20. On November 9, 2004, the U.S. Patent & Trademark Office ("USPTO")issued the '167 Design Patent for only the aesthetic design of a bangle, naming CarolynRafaelian Ferlise as inventor. On information and belief, the' 167 Design Patent has beeassigned to Alex.

21. LA GEM is Alex's competitor in the jewelry design, manufacture,distribution, and sales market.

22. Upon information and belief, Alex, directly and indirectly through its agenthas used false and misleading representations of fact in connection with the commercialadvertising and promotion of its bangle product, which is sold in interstate commerce.

23. Alex falsely advertises, at least on its website, the' 167 Design Patent covefunctional and mechanical claims that are only covered by utility patents and fails todisclose anywhere on its website either the patent number or that it holds only a designpatent on the purported invention.

24. Only a single claim is permissible in a design patent and Alex is fully awarthat the drawings of the '167 Design Patent, which form the single claim, cannot and donot extend to or claim an expandable function as a matter of law.

25. Despite being sued in the past by third-parties and made aware of the false2 5 patent scope statements on at least its website, Alex has continued to make the false26 statements to thwart competition.27 26. These actions ofAlex constitute false advertising in violation of Section28 43(a) of the Lanham Act, 15 U.S.C. 1125(a).



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1 27. By reason of the foregoing, Alex has caused and is causing irreparable harm2 to LA GEM. By falsely misleading the public and the industry as to the scope of its3 patent protection, Alex is attempting to unlawfully coerce customers in the jewelry4 business to buy the public domain bangles exclusively from Alex and at inflated prices.5 28. As a result of Alex's false advertising, LA GEM has suffered, and will6 continue to suffer, damage and injury to its business, with a resulting serious loss in7 revenue and profits.8 29. LA GEM has no adequate remedy at law.9

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COUNT IIFalse Patent Marking in Violation of 35 U.S.C. 292

12 30. LA GEM hereby realleges and incorporates the allegations in paragraphs 113 to 29 of the complaint as if fully set forth herein.

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Alex has used the word "patent" and the like in association with the sale anadvertising of its products representing that the bangle and all of its uses are covered by

i:' ""S': 16!i 0 utility patent for the purposes of deceiving the public, including customers and retailersviolation of35 U.S.C. 292.~ 17

18 32. As a result of the foregoing, Alex's actions have caused, and are continuing19 to cause, irreparable harm to LA GEM.20 33. As a result of Alex's actions, LA GEM has suffered, and will continue to21 suffer, damage and injury to its business, with a resulting loss of revenue and profits.2 2 34. LA GEM has no adequate remedy at law.23

24 COUNTIII25 Declaration ofNoninfringement, Invalidity and Unenforceability26 Of the '167 Design Patent27 35. LA GEM hereby realleges and incorporates the allegations in paragraphs 128 to 34 of the complaint as if fully set forth herein.



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1 competition or false designation of origin.2 42. Alex's alleged trade dress does not constitute a valid and protectable3 trademark because the ornamental and decorative product features lack distinctiveness4 and does not serve as a source identifier for Alex.5 43. Alex is barred by the doctrines ofwaiver, laches, unclean hands, and/or6 estoppel from asserting the alleged trade dress against LA GEM.7 44. LA GEM respectfully submits that it is entitled to a declaration from this8 Court that LA GEM has not infringed any protectable trade dress right by selling the LA9 Gem Bangle; Alex has no rights in the alleged trade dress; Alex is barred from asserting

1 0 any claim for infringement of the alleged trade dress against LA GEM; and LA GEM ha11 not engaged in unfair competition or false designation of origin, with respect to the12 alleged trade dress.13 45. LA GEM has no adequate remedy at law.

.. ~~ ~ ~ 14~ 15 COUNTY~ ~ ="' Unfair Competition And False Advertising17 (Cal. Bus. And Prof. Code Sec. 17200 and 17500 et. seq.)

18 46. LA GEM hereby realleges and incorporates the allegations in paragraphs 119 to 36 of the complaint as if fully set forth herein.20 47. Alex is LA GEM's competitor in the jewelry market. Alex's above21 misconduct misleads, confuses or deceives the public. Accordingly, Defendants are in22 violation of the California Unfair Business Practices Act, codified under Cal. Bus. And23 Prof. Code Sec . 17200 and 17500 et. seq.24 48. Unless Alex's forgoing actions are enjoined, LA GEM will continue to, and2 5 does continue to suffer injury and damage.26 49. LA GEM has no adequate remedy at law.27 ///28 // /

-9-COMPLAINT Jury Demand


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PRAYER

WHEREFORE, PlaintiffLA GEM prays for judgment against Defendants asfollows:

A. For an award of damages as provided by law as determined at trial, togethewith prejudgment interest;B. For a declaration from this Court that the '167 Design Patent is invalid and

unenforceable against LA GEM;C. For a declaration from this Court that LA GEM may continue to

manufacture and sell its LA Gem Bangle, or any other jewelry incorporating the publicdomain design;

D. For a declaration from this Court that LA GEM has not infringed,contributorily infringed or induced infringement of the only claim of the '167 DesignPatent;

E. A permanent injunction enjoining Alex, its officers, agents, servants,employees and all persons in active concert or participation with them, from any use ofany advertisement, promotion or claim that literally or implicitly misleads the trade orpublic with regard to the scope of coverage of the '167 Design Patent;

F. A permanent injunction enjoining Alex, its officers, agents, servants,employees and all persons in active concert or participation with them, from any furthermisuse of the' 167 Design Patent;

G. A determination that this case is exceptional and awarding LA GEM itscosts and reasonable attorneys fees incurred in this action under 35 U.S.C. 285;

H. For a declaration from this Court that the alleged trade dress is invalid,unenforceable, generic, descriptive, functional, ornamental and/or decorative, and thatAlex's alleged trade dress has not obtained secondary meaning, Alex was not the first touse the alleged trade dress, and Alex has not legally used the alleged trade dressexclusively for a period of five years;

I. A declaration that LA GEM has not infringed Alex's purported trade dress

-10-COMPLAINT Jury Demand


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1 rights;23

J.K.

A declaration that Alex has no protectable rights in the alleged trade dress;For an injunction preventing any further interference by Alex with LA

4 GEM, its customers, manufacturers, retailers and suppliers;5 L. For costs of suit incurred, including, but not limited to reasonable attorneys6 fees;7 M. That this Court grant such other and further relief that it deems just and89

proper.

10 Dated: May 28, 20131112

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Respectfully submitted,MILORD & A S S < j ~ TES, P.C.4f!!-L -Milord A. KeshishianArmen ManasserianAttorneys for PlaintiffLA GEM & JEWELRYDESIGN, INC.



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01 DEMAND FOR JURY TRIAL2 Plaintiff, through its attorneys of record, hereby demands trial by Jury.3

4 Dated: May 28, 201356789

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MILORD & ASSb, :C .Milord A. KeshishianArmen ManasserianAttorneys for PlaintiffLA GEM & JEWELRYDESIGN, INC.



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1 1 1 ~ 1 m11.fa1111 11111111111USOOD498167S(12) United States Design Patent cw) Patent No.: US D498,167 S** Nov. 9, 2004erlise (45) Date of Patent:(54) EXPANDABLE WIRE BRACELET(76) Inventor: Carolyn Rafaelian Ferlise, 41Highgate Rd., Cranston, RI (US) 02920(**) Term: 14 Years(21) Appl. No.: 29/194,053(22) Filed: Nov. 19, 2003

Related U.S. Application Data(62) Division of application No. 29/181,844, filed on May 16,2003, now Pat. No. Des. 487,709.(51) LOC (7) CI ..................................................... 11-01(52) U.S. CI ........................................................... D11!5(58) Field of Search .......................... Dll/1-15, 18-20,

(56)Dll/22-25, 93; 59/79.1, 79.3, 78, 83; 63/3-4,9,21, 38

References CitedU.S. PATENT DOCUMENTS

428,339 A * 5/1890 Howard ... .. ...... .............. 63/11D69,012 S * 12/1925 Dalin .......................... Dll/30D247,102 S * 1/1978 Durante ... ...... .. ... ... ... .. .. Dll/55,247,814 A 9/1993 McDonald .......... .......... 63/3.2

,'

D472,177 S 3/2003 McCullough-McPherson Dll/4

* cited by examinerPrimary Exami ner-Lou is S. ZarfasAssistant Examiner-John Windmuller(74) Attorney, Agent, or Firm-Linda M.Christine C. O'Day; Edwards & Angell, LLP(57) CLAIM

Buckley;

The ornamental design for an expandable wire bracelet, asshown and described.DESCRIPTION

FIG. 1 is a perspective view of an expandable wire bracelet,showing my new design;FIG. 2 is a top plan view thereof;FIG. 3 is a bottom view thereof;FIG. 4 is a left side view thereof;FIG. 5 is a right side view thereof;FIG. 6 is a rear view thereof; and,FIG. 7 is a front view thereof.The subject matter depicted in dashed lines in FIGS. 1-7 isshown for illustrative purposes only and forms no part of theclaimed design.

1 Claim, 7 Drawing Sheets

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U.S. Patent Nov. 9, 2004 Sheet 1 of 7

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I ..U.S. Patent. Nov. 9, 2004 Sheet 4 of 7 US D498,167 S

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IU.S. Patent Nov. 9, 2004 Sheet 5 of 7 US D498,167 S

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I 0U.S. Patent Nov. 9, 2004 Sheet 6 of 7 US D498,167 S

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I U.S. Patent Nov. 9, 2004 Sheet 7 of 7 US D498,167 S

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FGARBARt:\IIITZGERALD P.C.

420 Lexington AvenueSuite 2743New York, New York 10170Phone: 212.300.5358

Fax: 888.265.7054www.garbarinilaw.com

CEASE AND DESISTMay 15,2013

VIA CERTIFIED MAIL andEMAIL to Richard D. ScheppSr. EVP & General CounselKohl's Department Stores, Inc.N56 W17000 Ridgewood DriveMenomonee Falls, Wisconsin 53051

Mr. Schepp:

Re: Alex andAni- US. Pat. No. D498, 167Kohl's Sale ofExpandable Wire Bracelet

Our firm represents Alex and Ani, LLC. Alex and Ani creates, manufactures anddistributes an iconic bangle which is the subject of United States Letters Patent Nos. D498, 167entitled "Expandable Wire Bracelet" (the'" 167 Patent").

Kohl's Department Stores, Inc. ("Kohl's" or "You") has imported, manufactured, sold,and/or offered for sale at least eleven styles of bangle bracelet (the "Accused Bangles") withoutauthorization or license. See Attachment A. The sale by Kohl's of the Accused Bangles raisesissues of confusion in the marketplace over the origination of the Accused Bangles and hasharmed Alex and Ani 's intellectual property rights, including, but not limited to, its trade dressunder Section 43(a) of the Lanham Act. Moreover, Kohl's trading on Alex and Ani 's goodwill iscertainly an adequate basis for an unfair competition claim.

Our intention is to resolve this matter as amicably as possible, provided Kohl'simmediately ceases and desists from any further importation, sale, or offer for sale of theAccused Bangles and provides the identity of the manufacturer(s) of the Accused Bangles. Wealso require an accounting of all sales of the Accused Bangles.

cun \ BO'-.J\\1 CLR L\ \ l l \ + ! I< i l iT i l l , ~ ( iOOD FIGHTExhibit 2- Page 21


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Garbarini Fi!zGerald P.C.Page2

IIn the meantime, You must retain, maintain, and preserve all relevant documents and

things including electronically stored information (such as e-mail) in their original condition,relevant to:

The Accused Bangles. Any and all similar bangle(s). Alex and Ani, LLC. All sales of the Accused Bangles.If You are unwilling, or unable, to comply with the foregoing, please inform us

immediately so we may take appropriate measures. Failure to preserve may constitute spoliationof evidence. I can be reached at 212.300.5358, should you wish to discuss this matter.

GARBARINI FITZGERALD P.C.' /

By:--'-tJ+I---=-/ ; . { _ - ~ - - -Richard M. Garbarini

Attch.

Exhibit 2 - Page 22


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Attachment A - ACCUSED BANGLES

Kohl's Ban les

Silver Plate & Stainless Steel Lab-Created Blue GoldstoneBead & Star Charm Bangle BraceletSKU 93902058

Silver Plate & Stainless Steel Green A vent urine Bead &Dancer Charm Bangle BraceletSKU 93902073

Silver Plate & Stainless Steel Amethyst Bead & CrossCharm Bangle BraceletSKU 93902121

~ , ' ~ ~ ; ...~ . 'Exhibit 2 - Page 23


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Silver Plate & Stainless Steel Lab-Created Goldstone Bead& Star Charm Bangle BraceletSKU 93902152

Silver Plate & Stainless Steel Lab Created Turquoise Bead& Flower Charm Bangle Bracele tSKU 93902902

Silver Plate & Stainless Steel Cherry Quartz Bead &Winged Heart Charm Bangle BraceletSKU 93902948

2

Exhibit 2 - Page 24


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Silver Plate & Stainless Steel Cherry Quartz Bead & RoseChann Bangle BraceletSKU 93902103

Silver Plate & Stainless Steel Black Agate Bead & GuitarChann Bangle BraceletSKU 93902112

Silver Plate & Stainless Steel Amethyst Bead & DoubleHeart Chann Sister Bangle BraceletSKU 93902951

3

I

Exhibit 2 - Page 25


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Silver Plate & Stainless Steel Rose Quartz Bead & MusicNote Chann Bangle BraceletSKU tJ3902039

Silver Plate & Stainless Steel Lab-Created Turquoise Bead& Compass Chann Bangle BraceletSKU 93901967

Re resentative Alex and Ani Ban le

4

I

Exhibit 2 - Page 26


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I IGF

GARBARINI FITZGERALD P.C.

VIA CERTIFIED MAIL and

420 Lexington AvenueSuite 2743New York, New York 10170Phone: 212.300.5358

Fax: 888.265.7054www.garbarinilaw.com

May 24, 2013

EMAIL to Richard D. Schepp.Sr. EVP & General CounselKohl's Department Stores, Inc.N56 Wl7000 Ridgewood DriveMenomonee Falls, Wisconsin 53051

Mr. Schepp:

Re: Alex andAni- US. Pat. No. D498, 167Kohl's Sale ofExpandable Wire Bracelet

As you know, our finn represents Alex and Ani, LLC. I write in furtherance ofmycorrespondence dated May 15, 2013 and sent by certified mail, which was received by Kohl'sonMay 18, 2013. We raised the issue ofKohl's potential misappropriation ofAlex and Ani'sintellectual property, including, but not limited to, its trade dress under Section 43(a) of theLanham Act. See correspondence attached as Attachment I.

We genuinely wish to discuss this matter to reach an amicable solution before institutinga lawsuit. Your failure to respond to our good faith efforts, however, renders this impossible.Please give me a call at 212.300.5358 by June 3, 2013. Should we not hear from you by thatdate, we will be forced to file suit in the United States District Court for the Southern District ofNew York.

GARBARINI FITZGERALD P.C.By:---=-=--:Lu::__:_ff--=. - - - ' - - ._Richard M. Garbarini

En cis.

CERTA BONUM CERT AMFN + FfGHT THE GOOD FIGHT Exhibit 3 - Page 27


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FREE SHIPPING OVER $100 I Sign In 0 Shopping Bag (0)ALEX AND ANISHOP GIFTS ABOUT EXPERIENCE(HTTP://WWW.ALEXANDANI.COMI)Back (Http://Www.Aiexandani.Com/Biog)

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AlexAnd Ani FAQsWe have the best fans in the world. Some wear our jewelry because of how it makes them feel, somebecause of how it looks and others because of how it sounds. No matter why you wear your Alex and Ani,there are a few things that set us apart: Alex and Ani jewelry is handmade in Rhode Island. Alex and Ani jewelry is eco-friendly and made in America from recycled materials. Alex and Ani jewelry is full of(+) positive energy. Alex and Ani jewelry comes with three special tags so that you'll know you're wearing the real thing. Eachone Is stamped with "Made in America With Love," the Alex and Ani logo and our offical patent numb er. Alex and Ani jewelry is expandable and sizes down to approximately 2 inches in diameter and up toapproximately 3.5 inches in diameter.

Utilizing an innovative patented and completely original technology, the expandable cancept replacestraditional clasps with a sliding mechanism, making each piece adjustable. This signature expandable featureIs available In expandable wire bracelets and rings, expandable chain necklaces and endless hoop earrings.This completely original design allows everyone to have a piece of ewelry customized for a perfect frt.Available in precious metals or our signature Russian Gold and Russian Silver finishes and adorned withsacred symbols and stones, the expandable collection Is timeless. classic, and collectible.

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