Levinger v. Integral- Complaint

7/28/2019 Levinger v. Integral- Complaint

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Case 1:13-cv-00194-S-PAS Document 1 Filed 03/25/13 Page 1 of 5 PageID #: 1

FILEDUNITED STATES DISTRICT COURTFOR THE DISTRICT OF RHODE IS!4tfPMAR 25 p 2: 4 1

; )

Plaintiff . ' TRICT COURTGIS l i\iC OF RHODE ISLAN!il

Frederick M. Levinger,

C.A. No.V.

JURY TRIAL DEMANDEDIntegral Logistics, LLC,Defendant CA 13- 194>

COMPLAINTPlaintiff, Frederick M. Levinger ("Levinger"), by and through his attorneys

Partridge Snow & Hahn LLP, brings this action for infringement of a design patent and, forcause therefore, states as follows:

PARTIES, JURISDICTION, AND VENUE1. Plaintiff Levinger is an individual who maintains a residence in the City of

Providence, State of Rhode Island, and maintains a place of business at 245 Waterman Street,Providence, Rhode Island 02906.

2. Defendant, Integral Logistics, LLC ("Integral") is a limited liability corporationorganized and existing under the laws of the State of Florida.

3. Integral does business in the State of Rhode Island by, among other things, sellingcigar lighters and smoking accessories to dealers located in the State of Rhode Island.

4. Integral maintains sufficient minimal contacts with the State of Rhode Island topermit this Court to exercise jurisdiction over its person consistent with the Due Process Clauseof the United States Constitution.

5. This Court has subject matter jurisdiction over this action based upon 28 U.S.C.1331 and 1338(a) in that the civil action arises under the laws of the United States including,


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but not limited to, 35 U.S.C. 1 et seq. and 15 U.S.C. 1111 et seq.6. Venue of this action is proper in this Court under 28 U.S.C. 1391 and 1400.

FACTS GIVING RISE TO THE CLAIM7. On February 10, 2012, Levinger filed United States Patent Application No.

29/413, 091 with the United States Patent and Trademark Office seeking a design patent as theinventor of a "combination lightand cigar cutting blade" in order to protect the unique andinnovation ornamental design he had invented.

8. On or about December 25, 2012; the application was granted and United States

Design Patent No. D673,314S (the "Patent") was issued by the United States Patent andTrademark Office. A true and correct copy of the Patent is attached hereto as Exhibit A.

9. Levinger is the owner of all right, title and interest in the Patent.10. Integral is in the business of importing and marketing cigar lighters and smoking

accessories from Asia for distribution and resale in the United States.11. Integral markets and distributes its imported protects to dealers across the United

States, including within the State of Rhode Island.12. From April, 2011 through December 31, 2011, Levinger, the former sole

shareholder of a major company which, among other things, marketed and sold cigar lighters andsmoking accessories, acted as an independent, freelance consultant to Integral. During the periodof the consultancy, Levinger disclosed to Integral his ideas for an ornamental design for a

combination light and cigar cutting blade, as shown and described in the Patent. Integralindicated to Levinger that it had no interest in obtaining patent protection on the invention, didnot compensate Levinger for his invention, and did not contribute to Levinger' s costs a s s o c i a t e d ~ 'with obtaining the Patent. Neither Yigal Cohen Harel, the principal member and executive of

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Integral, nor any other employee of Integral, were involved with the invention of the patenteddesign.

13. Levinger terminated and ceased all consultant activities with Integral effectiveDecember 31, 2011.

CLAIM FOR PATENT INFRINGEMENT, 35 U.S.C. 1 et seq.14. Integral has made, used, offered to sell and sold, and is still making, using,

offering to sell and/or is selling a product called "PUNCH LIGHT! An LED Light & CigarPunch in One!" ("Punch Light!). This product is an exact copy of, and is identical in all respects

to, the design which is the subject matter of the Patent. A copy oflntegral's marketing materialsregarding the "PUNCH LIGHT!" is attached hereto and marked as Exhibit B.

15. Integral has no license, authority, or permission to make, use or sell the designinvented by Levinger and protected by the Patent.

16. By importing, making, using, selling and/or offering the "PUNCH LIGHT!"product, Integral has directly and contributorily infringed and will continue to directly andcontributorily infringe upon the Patent under 35 U.S.C. 271(a), (b), (c) and/or (f), literallyand/or under the doctrine of equivalents.

17. By using, selling and/or offering for sale the "PUNCH LIGHT!" product, Integralhas induced infringement of, and will continue to induce infringement of, the Patent under 35U.S.C. 271(b) and/or (f), literally and/or under the doctrine of equivalents.

18. Upon information and belief, Integral's infringing conduct is and has beenmalicious, intentional, deliberate and willful making this an exceptional case within the meaningof 35 U.S.C. 285.

19. As a direct and proximate result of the infringing conduct of Integral, Levinger

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has suffered, and will continue to suffer, damages to his business and property rights for whichhe is entitled to recover pursuant to 35 U.S.C. 284.

20. As a direct and proximate result of the infringing conduct of Integral, Levingerhas been, and will continue to be, irreparably harmed by Integral's infringement of the Patent.

21. On or about January 13, 2013, Levinger, via an agent, was able to purchase aquantity oflntegral's "PUNCH LIGHT!" products from Soma Cigars, located at 341 South MainStreet, Providence, Rhode Island 02903. Upon information and belief, Soma Cigars is a dealerof products distributed by Integral and Integral sold to Soma Cigars the "PUNCH LIGHT!"products Levinger purchased in Rhode Island. A copy of the purchase order and receiptevidencing this infringing activity in Rhode Island is attached hereto and marked as Exhibit C.

WHERFORE, Plaintiff Levinger requests the following relief:A. A judgment that Integral willfully infringed the Patent in violation of 35 U .S.C.

271(a);B. An injunction against further infringement of the Patent by Integral and its agents,

servants, employees, officers, and all others controlled by them pursuant to 35u.s.c. 283;

C. A full and complete accounting of all payments, receipts, income, benefits,compensation, re-numeration, and monies received, paid or due in connectionwith the production, importation, sale and distribution of the "PUNCH LIGHT!"product in the United States;

D. An award equal to all oflntegral's profits as a result of the infringing salespursuant to 35 U.S.C. 289;

E. In the alternative, compensatory damages in the form of a reasonable royalty

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pursuant to 35 U.S.C. 284;F. Treble damages due to Integral's willful and intentional infringement of the

Patent pursuant to 35 U.S.C. 284;G. An assessment of costs, including reasonable attorneys' fees, pursuant to 35

u.s.c. 285;H. Interest; andI. Such other relief as to the Court seems meet and just.

DATED: March;a_ , 2013

Plaintiff demands trial by jury.

1791931_1/5199-3

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FREDERICK M. LEVINGER,By His Attorneys,P ~ E SNOW & HAHN LLP~ 0 . .teven E. Snow (#1774)180 South Main StreetProvidence, RI 02903(401) 861-8200 I (401) 861-8210 [email protected]


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Case 1:13-cv-00194-S-PAS Document 1-1 Filed 03/25/13 Page 1 of 2 PageID #: 6

JS-44 (Rev. 3!08 Rl) CIVIL COVER SHEETI. (a) PlAINTIFFS DEFENDANTS F\LEDFrederick M. Levinger Integral Logistics, LLC

(b) County of Residence of First Listed Plaintiff County of Residence of First uZ! l l leMARt25 p 2: q \(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)NOTE: IN LAND CONDEMNATION CASES, JJo1JRfATION OF THE

(C) Attomey's (Finn Name, Address, and Telephone Number) LANDINVOLVED. U) JiS\R\CI C 'GlSTH.l(i O" RHODE ISLANDSteven E. Snow, Partridge Snow & Hahn LLP Attorneys (If Known) 9 4 ~80 South Main St., Providence, RI 02903 CA 13 140 1) R61-R200 D -II. BASIS OF JURISDICTION (Place an "X" in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Box for Plaintiff01

(For Diversity Cases Only) and One Box for Defendant)U.S. Government [E)J Federal QuestionPlaintiff (U.S. Government Not a Party) Citizen of This State

02 U.S. Government 04 Diversity Citizen of Another StateDefendant (Indicate Citizenship of Parties in Item III)Citizen or Subject of a

Foreign Country

IV. NATURE OF SUIT (Place an "X" in One Box Only)

J Bankruptcy

140 Negotiable Instruments430 Banks and BankingH75 Customer Challenge toSubpoena ( 12 U.S.C. 3410)

410 Anti-Trust

160 Stockholders' Suits;;:: Osso Securities/5 Commodities/ ExchangeUt---------1

Other - ~ u s i n e s s / C o m m ." ' 1 - - - - - - - - - - - 10196 Franchise04l)0 Cable/Satellite TV

Consumer CreditQ'\71 Truth in Lending04so Consumer Credit0190 Other Contracts

Employment

Safety Health0710 Fair Labor Standards Act0720 Labor/ManagementRelations0730 Labor/ManagementReporting and DisclosureAct0740 Railway Labor Act0790 Other Labor Litigation

~ ~ ~ l ~ ~ ~ " ' ' i ! i ; j " v i i d ~ l i ~ ' " 1 ' ; ~ 1. "'1\Wll - ~ .. \ \ ; ; : : . . . . . ... . . . . ".0 150 Recovery ofOverpayment and

Enforcement of Judgment(Collections)0151 Medicare Act0152 Recovery of DefaultedStudent Loans (excluding

Veterans)0153 Recovery ofOverpayment of

Veterans' Benefits0370 Other Fraud0440 Other Civil Rights(Immigration/Deportation)0450 Commerce0460 Deportation8610 Agriculture620 Other Food and Drug0625 Drug related seizure ofproperty0630 Liquor Laws0640 Railroad and Truck

CONTINUED ONREVERSE SIDE

PTF DEF PTF DEFOr 01 Incorporated or Principal Place 04 04of Business In This State02 02 Incorporated and Principal Place Ds Ds

of Business In Another State03 03 Foreign Nation

650 Airline Regs.690 Other (Forfeiture)90 Other (Health Care)810 Selective Service

0870 Taxes (U.S. Plaintiff orDefendant)Osn IRS-Third Party (26u.s.c. 7609)90 Other Statutory Actions891 Agricultural Acts892 Economic StabilizationAct

8894 Energy Allocation Act895 Freedom of lnfonnationAct0900 Appeal of FeeDetermination underEqual Access to JusticeAct510 Motions to Vacate

Sentence (2254)0510 Motions to VacateSentence (2255)'0530 General (Habeas)0535 Death Penalty0540 Mandamus and Other850 Civil Rights (1983)555 Prison Conditions(1983)0210 Land Condemnation0220 Foreclosure0230 Rent, Lease andEjectment0240 Torts to Land0290 All other Real Property0380 Other Personal PropertyDamage

06 06

0470RICO

Liability0245 Tort Product Liability0315 Airplane ProductLiability0345 Marine ProductLiability0355 Motor VehicleProduct Liability0365 Personal InjuryProduct Liability0385 Property DamageProduct Liability

Slander0330 Federal Employers'Liability0360 Other Personal Injury0368 Asbestos Personal

Injury


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V. ORIGIN (Place an "X" In One Box Only)

!Bll Oz 03 04 Os 0 6 0 7Original Removed from Remanded from Reinstated or Transferred from Multidistrict Appeal to District JudgeProceeding State Court Appellate Court Reopened another district Litigation From Magistrate Judgment(Specify)

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):35 U.S.C. Section 271

VI. CAUSE OF AC'TION Brief description of cause:

VII. REQUESTED IN 0 Check if this is a Class Action DEMAND$ JURY DEMAND: IBJ Yes 0 NoCOMPLAINT Under F.R.C.P. 23 (Check YES Q!!b:: if demanded in complaint)

VIII. RELATED CASE(S)

Date

IF ANY JUDGE DOCKET NUMBERBecause of the need for accurate and complete mformahon, you should ensure the accuracy of the mformatwn provtded pnor to stgmng the form.

INSTRUCTIONS FO R COMPLETING CIVIL COVER SHEET JS-44Authority for Civil Cover Sheet

The JS-44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleadings or other papers as requiredhy 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 Clerof Court for the purpose of initiating the civil docket sheet. Consequently a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. Listed beloware tips for completing the civil cover sheet. These tips coincide with the Roman Numerals on the Cover Sheet.

I. COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF/DEFENDANT (b) County of residence: For each civil case filed, except U.S. plaintiffcases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaint iff cases, enter the name of the county inwhich the first listed defendant resides at the time of filing. (NOTE: In lan d condemnation cases, the county of residence of the "defendant" is thelocation of the tract of land involved.)

III. CITIZENSHIP OF PRINCIPAL PARTIES: This section is completed Q!).!Y. if diversity of citizenship was selected as the Basis of Jurisdiction underSection II .

IV. NATURE OF SUIT: Place an X in the appropriate box. Make sure to select the Nature of Suit from the category which best describes the primary causof action found in your complaint. You must select Q!!!y 2.!:! nature of suit.

VIII. RELATED CASES, IF ANY: This section of the JS-44 is used to reference related pending cases i f any. I f there are related pending cases, insert thedocket numbers and the corresponding judge names for such cases.

Receipt#----- Amount----- Applying IFP---- Judge -------- Mag. Judge-------


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EXHIBIT A


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1111111111111111111111111111111111111 111111111111111111111111111111111

(12) United States Design PatentLevinger

(54) COMBINATION LIGHT AND CIGARCUTTING BLADE

(76) Inventor: Frederick N. Levinger, Palm BeachGardens, FL (US)(**) Term: 14 ears(21) Appl. No.: 29/413,091(22) Filed: Feb .lO, 2012(51) LOC (9) Cl .................................................. 26-02(52) U.S. Cl ............................ D26/38; 026/49; D3/209(58) Field of Classification Search ................... 026/37,

026/38,40,42,46,49, 51; 3621157, 158,3621184, 194-208, 253; 0271194, 195; 03/209See application file for complete search history.

(56) References CitedU.S. PATENT DOCUMENTS{D253,494 S * llfl979 $1t-Lae .......................... 026/495,535,763 A 7/1996 j:onteD386,271 S * 1111997 Shiau ............................. D26/465,738,117 A 4/1998 . Fontaine, Jr.5,799,662 A 9/1998 J ConteD403,451 S * 12/1998 Ting ......... .......... .......... .. D26/375,862,808 A l/1999 AlbarelloD407,508 s "' 3/1999 Chiu .............................. 026/375,888,061 A 3/1999 Reynolds0413,401 S * 811999 McDonald et al .......... ... D26/490414,887 S * 10/1999 McDonald et al ............ D26/46D414,893 S * 10/1999 Moore ............... .......... D27/1950417,525 S * 12/1999 Brushett ...................... D27/1956,026,574 A 2/2000 Ghavami et al.

6,032,679 A 3/2000 McG!auflin6,102,047 A 812000 Manderick0431,355 S * 1012000 Boyd, Jr ........................ D3/209D468,659 S * 112003 Rauber .......................... Dl11810488,245 S * 4/2004 McDonald et al ............. D26/490495,076 S "' 812004 Mandel .......................... D26137

USOOD673314S

(IO) Patent No.: US D673,314 S** Dec. 25, 201245) Date of Patent:0497,215 s ..6,907,886 B20531,743 s ..D537,208 s ..0560,007 s "'D563,004 s *0608,942 s *D612,968 s ..D624,220 s *2005/0174754 Al"'2005/0257797 AI2009/0133705 AI20 ll/0146696 Al

*cited by examiner

I 0/2004 Shaljian ...... .......... ......... D26/516/2005 Kemanjian11/2006 Opolka .......... .... ...... ...... D26/372/2007 Shaljian ......... .... ......... ... 028/551/2008 McMillan et aJ .............. D261372/2008 Biglarians ... .......... ......... D26/381/2010 Hbaiu .......................... D27/1953/2010 Ma ............. . ............ ....... D26/499/2010 Shaljian ............. ... ......... D26/388/2005 Fang ............................. 362/1181112005 Taylor5/2009 Smith6/2011 Dipple

Primary Examiner - Ian SimmonsAssistantExaminer- Carissa C Fitts(74) Attorney, Agent, or Firm- Salter & Michaelson(57) CLAIMThe ornamental design for a combination light and cigarcutting blade, as shown and described.

DESCRIPTIONFIG. 1 is a top front perspective view of a combination lightand cigar cutting blade;FIG. 2 is a left-side elevational view thereof;FIG. 3 is a right-side elevational view thereof;FIG. 4 is a top elevational view thereof;FIG. 5 is a bottom elevational view thereof;FIG. 6 is a front elevational view thereof;FIG. 7 is a rear elevational view thereof; and,FIG. 8 is a top rear perspective view thereof with the cutter inopen position.The portions shown in broken lines are included for illustrative purposes only and form no part of he claimed design.

1 Claim, 7 Drawi ng Sheets


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U.S. Patent Dec. 25, 2012 Sheet 1 of7 US D673,314 S

FIG.1


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U.S. Patent Dec. 25,2012

I

:.i II.\ \II\I II I

Sheet 2 of7

FIG. 2

US D673,314 S


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FIG. 3


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FIG. 4


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FIG. 5


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EXHIBITB


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PCUT101GUNMETAL &BRUSHEO CHROME


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PCUTlOlGUmAETAL&BRUSHED CHROME


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EXHIBITC


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Levinger v. Integral- Complaint