Polliwalks v. Crocs - Complaint

7/28/2019 Polliwalks v. Crocs - Complaint

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UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

)

POLLIWALKS, INC. ))

Plaintiff, )

)

v. ) Civil Action No.________________)

CROCS, INC. and ) JURY TRIAL DEMANDED

KOHLS CORPORATION, INC. ))

Defendants. )

)

COMPLAINT FOR PATENT INFRINGEMENT

Plaintiff, Polliwalks, Inc. (Polliwalks), by its undersigned counsel, for its complaint

against Crocs, Inc. (Crocs) and Kohls Corporation, Inc. (Kohls and collectively with Crocs,

Defendants), states as follows:

NATURE OF ACTION

1. This is an action for patent infringement arising under the Patent Laws of theUnited States, 35 U.S.C. 1 et seq.

THE PARTIES

2. Polliwalks is a corporation organized and existing under the laws of theCommonwealth of Massachusetts and has its principal place of business in the Commonwealth

of Massachusetts.

3. Upon information and belief, Crocs (NASDAQ: CROX) is a Delawarecorporation having its principal place of business in the State of Colorado.

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Case 1:13-cv-11425 Document 1 Filed 06/13/13 Page 1 of 8


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4. Upon information and belief, Kohls (NYSE: KSS) is a Wisconsin corporationhaving its principal place of business in Wisconsin. Kohls operates approximately 24

department stores in the Commonwealth of Massachusetts.

5. Upon information and belief, Defendants offer to sell products, and, in fact sellproducts throughout the United States, including in this judicial district and introduce products

that infringe one or more claims in United States Patent No. 8,371,043 (the 043 Patent) and

United States Patent No. 8,371,044 (the 044 Patent) into the stream of commerce knowing

that they would be sold in this judicial district and elsewhere in the United States.

JURISDICTION AND VENUE

6. This is an action for patent infringement arising under the Patent laws of theUnited States, Title 35 of the United States Code.

7. This Court has jurisdiction over the subject matter of this case under 28 U.S.C.1331 and 1338(a).

8. Venue is proper in this judicial district under 28 U.S.C. 1391 and 1400.9. Joinder of Crocs and Kohls in this action is proper as Crocs manufactures and

markets to Kohls its infringing products which infringing products Kohls markets and sells to

consumers in this judicial district all as part of the same transaction or series of transactions

concerning the same infringing products.

COUNT I

(Infringement of the 043 Patent)

10. Polliwalks hereby incorporates paragraphs 1 through 9 by reference as though setforth fully herein.

11. On February 12, 2013, the United States Patent and Trademark Office (theUSPTO) duly and legally issued the 043 Patent. Polliwalks owns the entire right, title and

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interest in the 043 Patent and such ownership rights are confirmed by assignments recorded in

the USPTO. A true and accurate copy of the 043 Patent is attached hereto as Exhibit 1.

12. Crocs makes, uses, sells or offers for sale, three-dimensional sculpted shoescalled: (i) Crocs Crockskin Clogs and (ii) Crocs Chameleon Alien Clogs (collectively, the

Infringing Products) that infringe one or more claims of the 043 Patent.

13. Kohls uses, sells, offers for sale to consumers, the Infringing Products that aresold to Kohls by Crocs. True and accurate excerpts from Kohls website are appended hereto as

Exhibit 2.

14.

Crocs has also infringed one or more claims of the 043 Patent by knowingly and

actively inducing others to infringe, by contributing to the infringement of others, including but

not limited to Kohls, and by intentionally aiding, assisting and encouraging the infringement by

others, including but not limited to Kohls through the sale, offer for sale, manufacture and use

of the Infringing Products.

15. Defendants were made aware of the 043 Patent and their infringement thereof atleast as early as its receipt of correspondence from counsel for Polliwalks providing notice of the

043 Patent and Defendants infringement thereof which was sent to each of the Defendants on or

about May 23, 2013. The letters were sent United States Priority Mail with a tracking number.

Defendants responded to these letters and thereby confirmed their receipt thereof.

16. In addition, on or about September 3, 3010, Kohls was provided written notice ofthe US Utility application which published on February 5, 2009 under publication No.: US-2009-

0031587 which matured into the 043 Patent. Additionally, a continuing application was filed

and issued as the 044 Patent.

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17. Upon information and belief, since at least the time Defendants received notice,Defendants have induced and continue to induce others to infringe at least one claim of the 043

Patent under 35 U.S.C. 271 (b) by, among other things, and with specific intent or willful

blindness, actively aiding and abetting, others to infringe, including, but not limited to,

Defendants customers, whose use, and on the part of retailers, sale, offer for sale and use of the

Infringing Products constitutes direct infringement of at least one claim of the 043 Patent.

18. In particular, Defendants actions that aid and abet others such as theirdistributors, partners and/or customers to infringe include advertising and distributing the

Infringing Products. Upon information and belief, Defendants have engaged in such actions with

specific intent to cause infringement or with willful blindness to the resulting infringement

because Defendants have had actual knowledge of the 043 Patent since at least the date

Defendants received notice from Polliwalks counsel notifying Defendants of their infringement

of the 043 Patent.

19. Despite Polliwalks counsels notice regarding the 043 Patent, Defendants havecontinued to infringe the 043 Patent. On information and belief, Defendants infringement has

been and continues to be willful.

20. Polliwalks has been harmed by Defendants infringing activities.COUNT II

(Infringement of the 044 Patent)

21. Polliwalks hereby incorporates paragraphs 1 through 20 by reference as thoughset forth fully herein.

22. On February 12, 2013, the USPTO duly and legally issued the 044 Patent.Polliwalks owns the entire right, title and interest in the 044 Patent and such ownership rights

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are confirmed by assignments recorded in the USPTO. A true and accurate copy of the 044

Patent is attached hereto as Exhibit 3.

23. Crocs makes, uses, sells or offers for sale, the Infringing Products that infringeone or more claims of the 044 Patent.

24. Kohls uses, sells, offers for sale to consumers, the Infringing Products that aresold to Kohls by Crocs. See Exhibit 2.

25. Crocs has also infringed one or more claims of the 044 Patent by knowingly andactively inducing others to infringe, by contributing to the infringement of others, including but

not limited to Kohls, and by intentionally aiding, assisting and encouraging the infringement by

others, including but not limited to Kohls through the sale, offer for sale, manufacture and use

of the Infringing Products.

26. Defendants were made aware of the 044 Patent and their infringement thereof atleast as early as its receipt of correspondence from counsel for Polliwalks providing notice of the

044 Patent and Defendants infringement thereof which was sent to each of the Defendants on or

about May 23, 2013. The letters were sent United States Priority Mail with a tracking number.

Defendants responded to these letters and thereby confirmed their receipt thereof.

27. Upon information and belief, since at least the time Defendants received notice,Defendants have induced and continue to induce others to infringe at least one claim of the 044

Patent under 35 U.S.C. 271 (b) by, among other things, and with specific intent or willful

blindness, actively aiding and abetting, others to infringe, including, but not limited to,

Defendants customers, whose use, and on the part of retailers, sale, offer for sale and use of the

Infringing Products constitutes direct infringement of at least one claim of the 044 Patent.

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28. In particular, Defendants actions that aid and abet others such as theirdistributors, partners and/or customers to infringe include advertising and distributing the

Infringing Products. Upon information and belief, Defendants have engaged in such actions with

specific intent to cause infringement or with willful blindness to the resulting infringement

because Defendants have had actual knowledge of the 044 Patent since at least the date

Defendants received notice from Polliwalks counsel notifying Defendants of their infringement

of the 044 Patent.

29. Despite Polliwalks counsels notice regarding the 044 Patent, Defendants havecontinued to infringe the 044 Patent.

30. On information and belief, Defendants infringement of the 044 Patent has beenand continues to be willful.

31. Polliwalks has been harmed by Defendants infringing activities.PRAYER FOR RELIEF

WHEREFORE, Plaintiff Polliwalks demands judgment for itself and against the

Defendants, as follows:

A. An adjudication that Defendants have infringed the 043 Patent;B. An adjudication that Defendants have infringed the 044 Patent;C. for injunctive relief, both preliminary and permanent, enjoining Defendants, and their

officers, directors agents, servants, employees, and all their entities and individuals

acting in concert with them or on their behalf from further infringement of either the

043 Patent and/or the 044 Patent;

D. An Award of damages to be paid by Defendants adequate to compensate Polliwalksfor Defendants past infringement of either the 043 Patent and/or the 044 Patent,

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and any continuing or future infringement through the date such judgment is entered,

including interest, costs, expenses and an accounting of all infringing acts;

E. for an award of enhanced damages resulting from Defendants willful infringement ofthe 043 Patent, pursuant to 35 U.S.C. 285;

F. for an award of enhanced damages resulting from Defendants willful infringement ofthe 044 Patent, pursuant to 35 U.S.C. 285;

G. for an award of attorneys fees pursuant to 35 U.S.C. 285 based on, but not limitedto, Defendants willful infringement of the 043 Patent;

H.

for an award of attorneys fees pursuant to 35 U.S.C. 285 based on, but not limited

to, Defendants willful infringement of the 044 Patent;

I. for an award of costs, pre-judgment and post-judgment interest on any damagesawarded, pursuant to 35 U.S.C. 284 and other applicable law; and

J. for such other and further relief as the Court deems just and reasonable.

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DEMAND FOR JURY TRIAL

Pursuant to Fed. R. Civ. P. 38, Polliwalks hereby demands a trial by jury in this action on

all claims and issues so triable.

Respectfully submitted,

POLLIWALKS, INC.,

By its counsel,

Dated: June 13, 2013

/s/ Jeffrey E. Francis

Jeffrey E. Francis, BBO #639944

[email protected] Maraia (BB) # 650569)

[email protected]

PIERCE ATWOOD LLP100 Summer Street

Suite 2250

Boston, MA 02110(617) 488-8136

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mailto:[email protected]:[email protected]:[email protected]


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Case 1:13-cv-11425 Document 1-1 Filed 06/13/13 Page 1 of 11

EXHIBITl

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(12) United States PatentRusnal{(54) SHOES(75) Inventor: ,Joel Rusnak, Newburyport, MA (US)(73) Assignee: Pnlliwulks, Inc., Sudbury, tv1A (US)( * ) Notice: Subject to any tliscluimet, the term ofthispaten! is ex!l'nded or udjusted umkr 35lJ .S.C. 154(b) by 90H days.

This patent is subject to a tetminal dis-clnimer.(21) Appl.No.: 12/184,417(22) Filed:(65)

Aug. I, 2008Pl'ior Puhllentinn Dnta

(60)

(51)(52)(58)

(56)

US 2009/0031587 Al Feb.5, 2009Related U.S. Appllcutlon Datu

Pmvisionul application No. 61/075,778, Jlled on Jun.26, 2008, provisional upplication No. 60/953,246,flied on ;\ ug. I , 2007.lnt.Cl.A43B 23/(10 (2006.01)U.S. Cl .................................. :16/11.5; 36/U6; 36/4Field of ClnssHicatlnn Scurclt .................... 36/112,

36/136,4, JJ.5; 12/142 S, 142 RS; D2/897-StJ9,D2/948-952Sec npplicntion fllo for complete senrch history.

References Citf.'dU.S. PATENT DOCUMENTS

438,179 A +:'1, 15S,5.SX r\ *3.402.485 A 3,538,628 A3,906,642 A4,050,167 A *4.0SO,I6S A *4,279,049 ,.\ ..

IOil !NO


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US 8,371,043 B2!'ago 2

U.S. PATENT DOCUMENTS !)517,789 s J/2006 St.1illtHlnS!)517,790 s .112006 SeamansDJ78,009 s 211997 Sullivan ct al. ................ D219l7 !)521,217 s 5/2006 :vlochring ctnl.DJSI,795 S 811997 Coats 1)525,017 s 712006 OchoaD393,937 s * 5/1998 Henson ........ ........ ........ .. 1)21899 1)525.'1 19 s 712006 S t . . ~ m n a n sJJ.\94,137 s 511998 Nadel 0529,263 s I0/2006 \Volt'5,765,300 A 6!1


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U.S. Patent Feb. 12, 2013 Sheel 1 of 4 US 8,371,043 B2

~ I


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U.S. Patent Feb. 12,2013 Sheet 2 of 4 US 8,371,043 B2


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U.S. Patent Feb. 12, 2013 S h e e ~ 3 of 4 US 8,371,043 B2


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U.S. Patent Feb. 12, 2013 Sheet 4 of 4 US 8,371,043 B2


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us 8,371,043 821

SHOESRllLATIJD Al'l'LJCAT!ON

This application claims the hcncllt or U.S. ProvisionalApplicution No. 61/075,778 entitled "SIIOES" by .Inc) Rusnuk, !lied on Jun. 26, 2008, und U.S, Provisionul ApplicationNo. 60/95:\246, entitled "ANIMAL PRINT MAKINGSHOES" by Jod Rusnak, filed on Aug. 1, 2007.Tlw entire teachings oflhL' above applications urc incorpo- Il lraiL'


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us 8,371,043 823 4ol'the shoe that covers the toes, the instep, the back of!he !hot, include using IlK' likeness of a person including lhmnus per-uno/or the sides of the Jbot. A shoe includes footwenr such 11s sons. The three-dil!Klnsionalllgure oflhe upper indudes threeclogs, boots, sanduls, and the like. dimensional characters having ge1wral owrall Jtatures,In an embodiment, the molded shoe of the present inven shape, lihness ofthe person or character (e.g., huts, hairstyle,lion includ\)s 1l sole hoving a bottom surlhce. Tlw bollnm ac


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us 8,3 71,043 825

dimensional frog. Frog upper 4C includes projections andl ' l ' C I . ' ~ s e s that an.' shuped to include a mouth, eyl.'s, nostrils, theling's skin pattem (e.g., bumpy), and its habitat that indutbgrass. The imprinting s u r l h c ~ . of sole 6C has projections andrecesses that lonn wehbt.d feet. lily pads and gmss.

A three dimensional duck figure is the lht:us of dw;k shoe60 shown in FIGS. 4A-C. Duck upper 4D's projections andrecesses form the ducks beak, nostrils, mouth, eves. t


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us 8,371,043 827

11. A method of making nn animal imprint on a surlhcewith u molded shoe; the method includes;

a. shlpping on the surlilcc with a molded shoe featuring anunimul, the shoe comprises:i. a sole having a bottom surlltce that comprises n series ofprojections and recesses that l'orm (I l l animal print ILJr ananimal, to thereby obtain nn animal imprinting surliu:e; andii. :m upper having sides extending tiom the sole and a toepm1ion, wherein the sides and the toe portion comprise anouter surlhce that comprises a series ol' projections and 10n.'Cesses that lonna threc-dinwnsional animal [Jgurc with oneor more leatures;wherein the sole, and the upper which includes the sides, toeportion and the thrclJdimensionulunimall1gure lwving the 15nne or more Jcatutes arc u single pilJClJ substantially ILmnedJh.Hn molded plasti


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EXHIBIT2

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Crocs Crocskln Clogs - Kids

Today's Deals Today's Ad Falher's Day Gift Shop

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My Kohl's Charge Store Locator Customer Servlt.a Order Tracking

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Crocs Crocslc'in Clogs - Kids

Sponsored LinksOfficial CrocsN Store$5 OffFootwear+ Free Shipping. Use Coda TAKE5. Offer Ends Soon!\VIWI,CTOCS,con11

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COil\OC\IJ$ about us stMa l o ~ n t o rs i t ~ map OllfWGbSMS shipping

Page 2 of2

Crocs Chameleons Clogs ..lllillih if k (1 )

Sponsored LinksShop C r o c ~ ShoesSave on Crocs Shoes! FindSales Up to 70% Off.I'/\WI.Si1opstyte.conVCrocsCroc Skin CrocsFind Everyday Low Prices atYahoo! Fantastic Deats on CrocSkin Creesshoppil'l!.yahoo.com/SupM cheap Crees l


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Crocs Chameleons Alien Clogs - Boys Page 1 of2

Today's Deats Today's Ad F a U 1 o ~ s Day Gift Shop My Kohl's Charge Store Locator CuslornerService Order Tracking

K O H ~ s lllll,.., Search by Keyword or Web IDexpect great things

0 : Gift Cards GiH Idees Reglslrles !.isis Sign InAccountsFor the Home Bed & Bath Patio & Furnllure Women Swim Men Juniors !(Ids Baby Toys Shoes .Jewelry & Watches Sports Fan Clearance

More VIewsShoe Fit & Style Guide

Crocs Chameleons Alien Clogs -Boyssate $34,99original $39.99

L i k e ~ ~

Sdect Size:2 4-5 8-0 10-11

Hrs Imagination will run wlld In these Crocs Chameleons clogs. Involt/lime.Shoe Fcature.s: Color-changing design alternates between colors. C r o s l i ~ e material forms to his foot fur a custom fil,shoe cor1strucUonr Croslite upper, lining & outsoleShoe Details: Round toe Slip-on Promotional offers available online at Kohls. com may varyfrom those offered in Kohl's stores.

https ://www .kohls.com/product/prd-12 74231 /crocs-chameleons-alien-clogs-boys.jsp

q u a n t i t y : ~ 1_ isale $34.99

u e-mail to a lrle11d

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Croc;s Crocsldn C!Qgs .. Kidsk k k (.?.)

Crocs ChameleonsClogs ..K1l!l!

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Crocs Feat nea!tren Clogs ..l1=i

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5/21/2013


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Crocs Chanie!eons Alien Clogs- Boys

Sponsored LinksBuy Crocs ShoesFind All Croce Shoes Styles Here. Only at Croce'" Official SltelW\WJ.croc$.ccmf

Mens Footwe.nr VVomens F o o l w ~ a rBoys F0!)\'1/e.:Jr Girls FootwearJibbill''' flew Sale Mart.downs up to 60% OifShoo Crocs- All StylusFree Shipping & Return Shipping. A Huge Selection and Great Savings.www.shoebuy.com/1\ : ,\ ; ~ , L i J . L f l i l l ~ for shoebuy.comCrocs ChruneleonBig Savings on Our Best Brands. Save 20% on All Orders, Ships FreelWVNt.$haemall.corn/Crocs,' r /,' ~ : } 6 (QVieWS (Of Shoema!I,COm!2ill' Croos ChameleonShop For Crocs Cllameleon Online At FamousFootwear.coml\WIW.farnousfootwear.com/Offlclal

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about us stare !.>calorsite mop ourweb sitos shlpplrtg

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EXHIBIT3

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(12) United States PatentRusnal

Documents

Polliwalks v. Crocs - Complaint