Swimways Et. Al. v. Zuru

7/28/2019 Swimways Et. Al. v. Zuru

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UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OFVTRGINlk

Nor fo lk Division FILED

SWIMWAYS CORPORATION andVAP CREATIVE, LTD. CLERK, U.S. DISTRICT COURTNORFOLK, VA

Plaintiffs, 4:i3CV33


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et seq.

5. This Court has jurisdiction over the subject matter of this action pursuant to 28U.S.C. 1331 and 1338(a).

6. Venue is proper in this district pursuant to 28 U.S.C. 1391 (c) because it is adistrictinwhich Defendant issubject to personal jurisdiction.

7. This Court has personal jurisdiction over ZURU because ZURU has committed,directed, authorized, endorsed and/or approved ofacts of infringement in the Eastern District ofVirginia; ZURU has caused tortious injury to SwimWays in the Eastern District of Virginia,Norfolk Division; and ZURU has transacted substantial business in this judicial district.

Facts Applicable to All Counts8. Swimways is aworldwide manufacturer ofinnovative and commercially successful

leisure and recreational water products. The SwimWays brand has been around for over 35 years,and SwimWays continues to invest substantial resources into its product design and development tocreate unique, quality products which are leaders in the industry. SwimWays' products can befound in thousands ofmajor retailers and individual pool dealers, both in the United States andabroad.

9. SwimWays' products include a line of Rainbow Reef swimming fish products,examples ofwhich are shown in Exhibit B.

10. The Rainbow Reef products have been advertised through various advertisingmedia, including on the Internet and substantial advertising dollars have been spent in connectionwith the products. The Rainbow Reef products have appeared in print media, newspapers, tradejournals,magazines, promotional materials, and on the Internet, in addition to at retail locations.

11. On information and belief, ZURU markets its infringing products through v a r i o u s


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advertising media, and those products are available for sale at retail locations throughout the UnitedStates.

12. ZURU sells a variety of robotic fish products, sold under the name "Robo Fish"("Accused Products") that infringe one or more claims of the '785 Patent. An example of theAccused Products is shown in Exhibit C.

Count One(Infringement of the '785 patents

13. Plaintiffs repeat and reallege, as if fully set forth herein, each and every allegationcontained inthe foregoing paragraphs.

14. ZURU manufactures, distributes, sells, offers to sell, and/or imports the AccusedProducts throughout theUnited States in the stream of interstate commerce.

15. The Accused Products embody and infringe the '785 patent in violation ofSwimWays' statutory rights under 35 U.S.C. 1et sea.

16. ZURU does not have license or authorization from SwimWays to utilize the '785patent.

17. ZURU's conduct also constitutes contributory and/or induced infringement of the'785 patent.

18. ZURU's infringement of the '785 patent has been willful.19. The foregoing acts of patent infringement by ZURU have caused, and unless

enjoined by this Court, will continue to cause immediate and irreparable injury and damage toPlaintiffs, leaving Plaintiffs with no adequate remedy at law.

Prayer For ReliefWHEREFORE, Plaintiffs pray:(a) that this Court issue preliminary and permanent injunctive relief against ZURU, its


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respective officers, agents, servants, employees, attorneys, parent and subsidiarycorporations, assigns and successors in interest, and those persons in active concertor participation with them, enjoining them from continued acts of infringement ofthe '785 patent, including, without limitation, an injunction against future sales ofthe Accused Products;

(b) ajudgment that the '785 patent is duly and legally issued, valid, and enforceable;(c) ajudgment that ZURU has infringed one ormore claims ofthe '785 patent;(d) an accounting and award ofcompensatory and punitive damages under 35 U.S.C.

284 including, but not limited to, Plaintiffs' lost profits, but in any event not lessthan a reasonable royalty, resulting from ZURU's infringement ofthe '785 patent,together withprejudgment andpostjudgment interest;

(e) that ZURU's acts be deemed willful and intentional and that ZURU be required topay to Plaintiffs additional damages equal to three times the actual damages awardedpursuant to 35 U.S.C. 284;

(f) that this be adjudged an exceptional case and that Plaintiffs' be awarded theirattorney fees, pursuant to 35 U.S.C. 285 in addition toother authority;

(g) that this Court award Plaintiffs their costs incurred herein; and(h) for such other and further relief as this Court deems just.

JURY DEMANDPursuant to Federal Rule ofCivil Procedure 38, Plaintiffs hereby demands a trial by jury

on al l issues so triable.

Dated: June 13,2013 SWIMWAYS CORPORATION and VAP /)CREATIVE, LTD ^ / /By: u/m^Mf=^William R. Poynter


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Virginia State BarNo. 48672Counsel for PlaintiffsWILLIAMS MULLEN, P.C.222 Central Park Avenue, Suite 1700Virginia Beach, VA 23462Telephone: (757) 499-8800Facsimile: (757) [email protected] Plaintiffs

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Swimways Et. Al. v. Zuru