Morgan Imports v. Fatboy - Complaint

Case 5:16-cv-01348-TJH-PLA Document 1 Filed 06/23/16 Page 1 of 13 Page ID #:1
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ALLAN H. GRANT, (CSB No. 213658)

GRANTS LAW FIRM
3638 University Ave. #203
Riverside, CA 92501
Telephone: (951) 544-5248
Facsimile: (866) 858-6637
allan@grants-law.com
Attorneys for Plaintiff
MORGAN IMPORTS, LLC
UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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MORGAN IMPORTS, LLC
CASE NO.: 16-1348
Plaintiff,
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v.
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FATBOY THE ORIGINAL, B.V.
COMPLAINT FOR
DECLARATORY JUDGMENT OF
NONINFRINGEMENT AND
INVALIDITY OF TRADE DRESS
Defendant.
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JURY TRIAL DEMANDED
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COMPLAINT FOR DECLARATORY JUDGMENT
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Plaintiff, MORGAN IMPORTS, LLC (hereafter MORGAN), hereby files its
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Complaint for Declaratory Judgment and Jury Demand, stating and alleging as
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follows:
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1.
FATBOY THE ORIGINAL, B.V. (hereafter FATBOY) is the
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purported owner of all rights worldwide in the LAMZAC inflatable lounger to market
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and distribute (the LAMZAC Lounger) in the United States and in the Central
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District of California.
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2.
MORGAN seeks a declaratory judgment of non-infringement in that its
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accused HANGOUT product does not infringe upon the trade dress of FATBOYs
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LAMZAC Lounger inflatable product under Section 43(a) of the Lanham Act, 15
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COMPLAINT FOR: DECLARATORY JUDGMENT OF NONINFRINGEMENT AND INVALIDITY
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U.S.C. 1125(a).
3.
MORGAN also seeks a declaratory judgment of trade dress invalidity
with respect to FATBOYs LAMZAC Lounger inflatable product: (1) that the trade
dress in question is not distinctive nor is there a secondary meaning in the
marketplace, thereby not indicating the source of the good it dresses; (2) that the trade
dress is functional; and (3) that the trade dress of the competing good is not
confusingly similar; therefore resulting in non-infringement and/or invalidity of
FATBOYs alleged Trade Dress in the LAMZAC Lounger under 28 U.S.C. 1331
and 1338 and 15 U.S.C 1121.
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4.
MORGAN seeks this relief because FATBOY, the purported owner of
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the LAMZAC Lounger, has sent MORGAN two (2) Demand Letters dated April
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28, 2016 and June 14, 2016 (Demand Letters), in which FATBOY threatens to file
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suit if MORGAN does not stop the sale of the HANGOUT inflatable lounger that
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purportedly copies the LAMZAC Lounger trade dress. A copy of the Demand
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Letters is attached as Exhibit A.
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5.
Additionally, FATBOY attached a copy of a draft of a proposed
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complaint for trade dress infringement for filing against MORGAN in Texas attached
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as Exhibit B (proposed complaint), if MORGAN did not comply.
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6.
The threat of suit by FATBOY is real and not idle because FATBOY has
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filed lawsuits in Europe to enforced its rights against infringers in civil proceedings in
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the Netherlands, see RBDH [District Court of the Hague] 13 mei 2016, KG ZA 2016,
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5216 m.nt. F.M. Buis (Oomen/Massive Air B.V.) (Neth.) and Germany, see
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Landgericht Dsseldorf [LG][Regional Court of Dsseldorf] May 16, 2016 (Ger.)
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(Exhibit B, page 6).
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7.
Based on information and belief, MORGAN respectfully asserts that
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FATBOY has sent out numerous cease and desist letters to other businesses owners in
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various jurisdictions, including in the Central District of California, asserting trade
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dress infringement of the LAMZAC Lounger, wherein FATBOY asserts ownership

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to the exclusive right to market and distribute the LAMZAC Lounger worldwide,
including in the United States and in the Central District of California.
8.
Given the Demand Letters, Proposed Complaint, and given the litigious
past of FATBOY, FATBOYs allegations have placed a cloud over MORGAN and its
HANGOUT inflatable lounger, have injured or are injuring MORGANs business,
and have created a concrete and immediate justiciable controversy between
MORGAN and FATBOY. MORGAN cannot simply stand by to await some filing of
litigation at a date in the future. MORGAN has filed this complaint so as to know with
certainty that its business can move forward without the imminent and ever-present
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litigation hanging over its head.
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PARTIES
9.
Plaintiff Morgan Imports, LLC is a limited liability company organized
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and existing under the laws of the State of California, and its DBA is Pump Bottle
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Misters having a principal place of business at 6260 River Crest Drive, #G, Riverside,
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CA 92507.
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10.
Defendant Fatboy the Original B.V. is a limited liability company
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organized and existing under the laws of the Netherlands, having a principal place of
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business at De Steenbok 19 Den Bosch, 5215 MG Netherlands.
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JURISDICTION AND VENUE

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This action arises under the declaratory Judgement laws of the United
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States, specifically, 28 U.S.C. 2201 and 2202 as well as the trademark laws
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prescribed in 15 U.S.C. 1125(a). The Court has subject matter jurisdiction over this
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case for declaratory judgement of non-infringement and invalidity of FATBOYs
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alleged Trade Dress under 28 U.S.C. 1331 and 1338 and 15 U.S.C 1121.
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12.
FATBOY is subject to personal jurisdiction in the Central District of
California because FATBOY has regularly conducted business in and directed at

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California and because FATBOY, appears to be in the business of licensing,
marketing, distributing and selling the LAMZAC Lounger and its other products in
the central district of California and worldwide. Further, FATBOY owns the domain
name www.fatboy.com, which advertises, markets, distributes, and sells LAMZAC
Lounger and other products worldwide, including in the United States and in the
Central District of California. Attached as Exhibit C is a copy of a Whois search for
the website www.fatboy.com showing the Registrant Organization as FATBOY THE
ORIGINAL, B.V. (FATBOY WEBSITE). Furthermore, the events giving rise to
this action - namely, the demand letter dated April 28, 2016 shown in Exhibit A by
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FATBOY demanding that MORGAN: (1) immediately and permanently cease all
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manufacture, distribution, advertising, and sale of the alleged infringing product the
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HANGOUT; (2) recall all remaining inventory of the infringing product the
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HANGOUT from any third-party sellers or distributors to which it has distributed the
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alleged infringing product; and (3) destroy all remaining inventory of the alleged
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infringing product the HANGOUT; all of which occurred primarily and substantially
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in California and in the Central District in California, where MORGAN is
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headquartered. Lastly, the continued events giving rise to this action - namely, the
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second demand letter from FATBOY dated June 14, 2016 shown in Exhibit A and
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draft of a proposed complaint from FATBOY for trade dress infringement against
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MORGAN in Texas attached as Exhibit B, if MORGAN did not comply.
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13.
Venue is proper in this district pursuant to 28 U.S.C. 1391(b) and (c)
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because, among other reasons, FATBOY is subject to personal jurisdiction in this
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judicial district, FATBOY conducts or has regularly conducted business in this
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judicial district, FATBOY maintains business records in this judicial district, and/or
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because a substantial part of the events or omissions giving rise to this action occurred
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in California and the Central District of California.
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FACTUAL BACKGROUND
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MORGAN re-avers and re-states the foregoing Paragraphs 1-13
inclusively as if fully set forth herein.

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MORGAN is in the business of distributing and selling various products
including an inflatable lounger under the trademark name HANGOUT.

16.
FATBOY allegedly owns all rights in the trade dress of the LAMZAC
Lounger, which it allegedly acquired through its predecessor, Mr. Martin Oomen, a
resident of the Netherlands, who was the original designer and creator of the
ORIGINAL LAMZAC.
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Based on information and belief, in 2010 Mr. Oomen took part in the
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Dutch television program Het Beste Idee van Nederland, in which experts searched
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for the best inventions created in the Netherlands. On that program, Mr. Oomen
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presented the idea of scooping air into a deflated bag to create shapes that could then
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be used for seating, among other things.
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Based on information and belief, Mr. Oomen did not began selling the
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ORIGINAL LAMZAC inflatable beanbag chair until sometime in 2012 in
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Netherlands, which was nearly two years after the product was first shown in public.
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Based on information and belief, a second inflatable lounger product
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was created under the trademark LAMZAC which was allegedly launched for
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commercial sale in February 2015 in Netherlands and Europe only initially.
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19.
Based on information and belief, the LAMZAC LOUNGER was not
for sale on a worldwide basis until recently in 2016.

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Based on information and belief, the LAMZAC LOUNGER was only
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offer for sale in the United States on a limited basis, based on the limited supply of the
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product from the original owner and creator Mr. Oomen.
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Based on information and belief, in 2016 FATBOY acquired the
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exclusive right to market and distribute LAMZAC products from Mr. Oomen, which
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has recently resulted in the LAMZAC LOUNGER being offer for sale recently in the
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United States by FATBOY, therein solving LAMZAC LOUNGER initial supply
problems in the United States.
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Based on information and belief, Morgan respectfully asserts it would be
impossible for the LAMZAC LOUNGER to be widely known in the United States
based on the limited marketing, advertising, and sale of the product here in the United
States.
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Based on information and belief, Morgan respectfully asserts it would be
impossible for the LAMZAC LOUNGER to be widely known and distinguishable
from the other similar products having similar trade dress in the United States.
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24.
Based on information and belief, Morgan respectfully asserts that the
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LAMZAC LOUNGER trade dress in question is not distinctive, therefore not
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protectable.
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LAMZAC LOUNGER has not obtained secondary meaning with respect to its trade
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dress, therefore not protectable.
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26.
Based on the sample Complaint of FATBOY attached as Exhibit B,
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FATBOY asserted that the LAMZAC LOUNGER trade dress incorporates a
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distinctive design composed of a unique combination of elements that collectively
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create a particular trade dress that is characteristic of the LAMZAC Lounger,
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consisting of:
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a. an inflatable lounger characterized by a long, folded tubular shape;
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b. the upper part of the lounger has a depression with the shape of a split;
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c. the split is created by convex walls which join at the bottom;
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d. the lounger at one end has a kink that goes inward; and
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e. the other end of the lounger has a large, circular rolled-up opening.
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Based on information and belief, Morgan respectfully asserts that each of
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the above elements of FATBOYs trade dress listed above are functional elements,
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therefore not protectable as trade dress.

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28.
Based on information and belief, Morgan respectfully asserts that since
FATBOYS trade dress is functional, FATBOY should have filed for a utility patent
and/or a design patent to protect the functionality of the LAMZAC LOUNGER and its
combination of elements that create the product, not assert the allege trade dress claim
since it has no merit.
29.
Based on information and belief, Morgan respectfully asserts Mr. Martin
Oomen and/or FATBOY has filed and received a Registered Community Design
No. 002621904-0001.1 for LAMZAC LOUNGER in the European Patent Union for a
design patent. Thereby, creating a presumption that it is not protectable trade dress
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since it can has qualified for a patent and should be protected as such.
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Based on information and belief, Morgan also respectfully asserts Mr.
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Martin Oomen and/or FATBOY have filed for one or more utility patents and/or
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design patents, here in the United States. Thereby, again creating a presumption that it
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is not protectable trade dress since it can has qualified for a patent and should be
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protected as such.
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31.
Based on information and belief, FATBOYs LAMZAC LOUNGER has
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incorporated a combination of functional elements as its trade dress and not the overall
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commercial image (look and feel) of a product that indicates or identifies the source of
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the product and distinguishes it from those of others.
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32.
Morgan respectfully asserts that trade dress is the overall commercial
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image (look and feel) of a product that indicates or identifies the source of the product
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and distinguishes it from those of others. It may include the design or
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shape/configuration of a product; product labeling and packaging. Trade dress can
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consist of such elements as size, shape, color and texture, to the extent that such
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elements are not functional.
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32.
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LAMZAC LOUNGER product is not distinctive with respect to its trade dress and
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cannot be distinguished from other similar products that have been on sale in the
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United States.
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LAMZAC LOUNGER product has not acquired a secondary meaning in the
marketplace with respect to its trade dress since there are other similar products that
have been on sale in the United States.
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LAMZAC LOUNGER product is not distinctive with respect to the overall
commercial image (i.e. look and feel), in that it is very generic looking. Additionally,
the product cannot be functional (i.e., not be essential to the use or purpose of, and not
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affect the cost or quality of, the product or service). Functional trade dress is not
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registrable even if it is distinctive. Arguably, LAMZAC LOUNGER product is
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functional in the way it captures the air and contains the air. Specifically it is a long,
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double tube, which is connected in the center along its length, continues at one end
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with a kink and has a large closed, rolled-up opening at the other end, which are all
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functional aspects of trade dress. Therefore, it would not qualify for actual Trade
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Dress protection.
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35.
Morgan respectfully asserts that the trade dress of its HANGOUT
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product has a different and distinct overall commercial image from the LAMZAC
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LOUNGER product as shown below:
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(a)
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Morgans dimensions are: 96 x 20 inches, whereas Lamzac

dimensions are 78.7 x 35.4 inches and 2.6 lbs;
(b)
Morgans product can seat at least four people, whereas Lamzac
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product can seat at most three people, when the people are in a
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seated position vertically;
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(c)
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Morgans product supports a weight capacity up to 500 lbs,

whereas Lamzac product has a weight capacity of 440 lbs;
(d)
Morgans product is designed for taller people to be able to lay

down horizontally without falling off since it is longer in length
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than Lamzac product;

(e)
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Morgans product has a rolled, double stitching on the long seam

for increased durability;
(f)
Morgans product has a seam that starts on the upper edge near the
bands at the outside, progressively moves inward forming a dart
which creates a pocket at the upper end;
(g)
Morgans product has a tie-down strap to secure the product to the
ground for safety when there is wind, whereas Lamzac product
does not have any tie down strap. Additionally, Morgans tie-down
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strap is an elastic tie-down for increased strength;

(h)
Morgans product has two pockets positioned on the outside of the
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product, wherein the pockets have a Velcro flap, whereas Lamzac
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product does not have any pockets to store items. The length of the
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two pockets on Morgans product is 16x 9 inches;
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(i)
Morgans product has a thermal transfer with a design logo of a
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user lounging on the product and a tag line stating THE
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HAMMOCK WITHOUT THE HASSLE, whereas Lamzac
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product does not have any thermal transfer, heat stamp or signage
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on the product with the exception of a tag attached to the seam;
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(j)
Morgans product is designed to be used when it is positioned right
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side up with the tie down strap at the bottom, pockets positioned
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upward for storage, and a thermal transfer with a design logo of a
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user lounging on the product indication to the user which side is
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up, whereas the Lamzac only has a tag attached to the seam of the
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product so the Lamzac can be used on either side and is designed
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to allow a user the ability to flip over and rotate the product;
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(k)
Morgans product has a stronger and bigger buckle to seal the two
tube entrances after they have been rolled up together, whereas
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Lamzac has a smaller buckle; and
(l)
Morgans product comes in numerous colors including but not
limited to blue, lime green, pink, plum, purple, grey, black, and
camouflage, whereas Lamzac only comes in five solid colors blue,
black, red, green, and purple.
36.
Morgan respectfully asserts that other aspects of the differences in the
trade dress of the HANGOUT and LAMZAC LOUNGER will be apparent upon a
visual inspection of the products and their trade dress as shown below:
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MORGAN:
HANGOUT
FATBOY:
LAMZAC LOUNGER
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37.
Morgan respectfully asserts that the trade dress of its HANGOUT
product is not confusingly similar to FATBOYs LAMZAC LOUNGER.
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COUNT I
Declaratory Judgment of Non-infringement of Trade Dress
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38.
MORGAN re-alleges and incorporates each and every allegation as set
forth above in Paragraphs 1-37 inclusively as if fully set forth herein.

39.
This is a declaratory judgment action under the Trademark Laws of the
United States, 15 USC 1051 et seq., the Lanham Act, 15 U.S.C. 1125, et seq. and
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the Declaratory Judgment Act, 28 U.S.C. 2201 and 2202. As an actual justiciable
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controversy exists by way of the credible threat of immediate litigation and demand
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MORGAN to cease and desist immediately and permanently all manufacture,
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distribution, advertising, and sale of the alleged infringing product the HANGOUT
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and forbearance of manufacture of other similar products, MORGAN seeks relief
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from this Court.
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40.
MORGAN believes that there is no legal or factual basis for FATBOY's
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claim that the MORGAN Trade Dress has caused, or is likely to cause confusion with
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the FATBOY Trade Dress or any of FATBOY's designations. MORGAN also
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believes that MORGAN Trade Dress does not infringe or violate any rights FATBOY
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may have in the LAMZAC LOUNGER designations or violate any federal, state or
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common law, and that its use of its MORGAN Trade Dress and HANGOUT in any
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stylization does not constitute unfair competition or violate any federal, state or
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common law.
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41.
MORGAN desires a judicial determination of its rights in the MORGAN
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Trade Dress and the MORGAN Trademark (including, but not limited to, as it is used
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in the MORGAN Trademark Registration) does not violate any federal, state or
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common law, as compared with the rights of FATBOY in FATBOY's Trade Dress,
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including its various LAMZAC LOUNGE designation.

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42.
MORGAN is entitled to declaratory judgment that it is not infringing, has
not infringed, and is not liable for infringing any allegedly enforceable trade dress
rights owned by FATBOY relating to the LAMZAC LOUNGER, either directly or by
inducing others to infringe or by contributing to infringement by others.
43.
A judicial declaration is necessary and appropriate at this time under the
circumstances and to resolve fully FATBOY's allegations that MORGAN's Trade
Dress is infringing FATBOY's Trade Dress rights resulting in a likelihood of
confusion.
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Count II
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Declaratory Judgment of Invalidity of Trade Dress
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44.
MORGAN re-alleges and incorporates each and every allegation as set
forth above in Paragraphs 1 - 43 inclusively as if fully set forth herein.
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45.
This is a declaratory judgment action under the Trademark Laws of the
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United States, 15 USC 1051 et seq., the Lanham Act, 15 U.S.C. 1125, et seq. and
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the Declaratory Judgment Act, 28 U.S.C. 2201 and 2202. As an actual justiciable
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controversy exists by way of the credible threat of immediate litigation from
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FATBOY as against MORGAN as discussed above.
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46.
MORGAN believes that there is no legal or factual basis for FATBOY to
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validly claim trade dress protection with respect to the LAMZAC LOUNGER since
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FATBOY cannot prove: (1) that the trade dress in question is distinctive or has
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acquired a secondary meaning in the marketplace with respect to its trade dress;
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(2) that the trade dress is non-functional; and (3) that the trade dress of the competing
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good is not confusingly similar.
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47.
MORGAN desires a judicial determination of its rights in the MORGAN
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Trade Dress as compared with the rights of FATBOY in LAMZAC LOUNGE Trade
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Dress.
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48.
MORGAN is entitled to declaratory judgment that FATBOYs trade

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dress is invalid since FATBOY cannot prove each and every one of the necessary
elements to claim trade dress protection namely:
distinctive or has acquired a secondary meaning; (2) that the trade dress is non-
functional; and (3) that the trade dress of the competing good is confusingly similar.
49.
(1) trade dress in question is
A judicial declaration is necessary and appropriate at this time under the
circumstances and to resolve MORGANs allegation that FATBOYs trade dress is
invalid and that MORGAN is not infringing upon FATBOY's Trade Dress rights.
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REQUEST FOR RELIEF
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WHERFORE, MORGAN respectfully requests the Court to enter judgment in
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its favor and against FATBOY, and that the Court grant MORGAN the following
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relief :
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1.
Enter a judgement declaring MORGAN does not infringe any valid trade
dress owned by FATBOY;

2.
Enter a judgement declaring that FATBOYs claimed trade dress is
invalid;
3.
awarding MORGAN costs and reasonable attorneys fees incurred in
connection with this action;

4.
awarding MORGAN attorneys fees and cost because this is an
exceptional case incurred in connection with this action; and

5.
for such other and further relief as the Court deems just and proper.
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DATED: June 23, 2016
GRANTS LAW FIRM
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By:_ / Allan Howard_Grant /_

ALLAN HOWARD GRANT
Attorneys for Plaintiff,
MORGAN IMPORTS, LLC
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Case 5:16-cv-01348-TJH-PLA
Document
1-1
Filed DISTRICT
06/23/16
Page 1 of 3 Page ID #:14
UNITED STATES DISTRICT
COURT,
CENTRAL
OF CALIFORNIA
CIVIL COVER SHEET
I. (a) PLAINTIFFS ( Check box if you are representing yourself
DEFENDANTS
MORGAN IMPORTS, LLC
( Check box if you are representing yourself
FATBOY THE ORIGINAL, B.V.
(b) County of Residence of First Listed Plaintiff Riverside
County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES)
(IN U.S. PLAINTIFF CASES ONLY)
(c) Attorneys (Firm Name, Address and Telephone Number) If you are
Attorneys (Firm Name, Address and Telephone Number) If you are
representing yourself, provide the same information.
representing yourself, provide the same information.
ALLAN H. GRANT, (CSB No. 213658) GRANTS LAW FIRM

3638 University Ave. #203
Riverside, CA 92501
Te: (951) 544-5248
III. CITIZENSHIP OF PRINCIPAL PARTIES-For Diversity Cases Only
II. BASIS OF JURISDICTION (Place an X in one box only.)

1. U.S. Government
Plaintiff
(Place an X in one box for plaintiff and one for defendant)

PTF
3. Federal Question (U.S.

Government Not a Party)
2. U.S. Government
Defendant
4. Diversity (Indicate Citizenship

of Parties in Item III)
DEF
Incorporated or Principal Place

of Business in this State
Incorporated and Principal Place
of Business in Another State
Citizen of This State
Citizen of Another State
Citizen or Subject of a
Foreign Country
3 Foreign Nation
IV. ORIGIN (Place an X in one box only.)

1. Original
Proceeding
2. Removed from
State Court
3. Remanded from
Appellate Court
Yes
V. REQUESTED IN COMPLAINT: JURY DEMAND:

CLASS ACTION under F.R.Cv.P. 23:
Yes
4. Reinstated or
Reopened
No
5. Transferred from Another

District (Specify)
PTF
DEF
4
6. MultiDistrict
Litigation
(Check "Yes" only if demanded in complaint.)

MONEY DEMANDED IN COMPLAINT: $
No
VI. CAUSE OF ACTION (Cite the U.S. Civil Statute under which you are filing and write a brief statement of cause.
Do not cite jurisdictional statutes unless diversity.)
COMPLAINT FOR DECLARATORY JUDGMENT OF NONINFRINGEMENT AND INVALIDITY OF TRADE DRESS
VII. NATURE OF SUIT (Place an X in one box only).

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862 Black Lung (923)
371 Truth in Lending

380 Other Personal
Property Damage
550 Civil Rights

555 Prison Condition
864 SSID Title XVI
385 Property Damage

Product Liability
BANKRUPTCY
422 Appeal 28
USC 158
423 Withdrawal 28
USC 157
CIVIL RIGHTS
560 Civil Detainee

Conditions of
Confinement
465 Other
Immigration Actions
TORTS
PERSONAL PROPERTY
370 Other Fraud
440 Other Civil Rights

441 Voting
442 Employment
443 Housing/
Accommodations
445 American with
DisabilitiesEmployment
446 American with
Disabilities-Other
448 Education
FORFEITURE/PENALTY
625 Drug Related
Seizure of Property 21
USC 881
690 Other
840 Trademark
SOCIAL SECURITY
861 HIA (1395ff)
863 DIWC/DIWW (405 (g))
865 RSI (405 (g))

FEDERAL TAX SUITS
870 Taxes (U.S. Plaintiff or
Defendant)
871 IRS-Third Party 26 USC
7609
LABOR
710 Fair Labor Standards
Act
720 Labor/Mgmt.
Relations
740 Railway Labor Act
751 Family and Medical
Leave Act
790 Other Labor
Litigation
791 Employee Ret. Inc.
Security Act
Case Number:
CIVIL COVER SHEET
Page 1 of 3
Document
1-1
Filed DISTRICT
06/23/16
COURT,
CENTRAL
OF CALIFORNIA
CIVIL COVER SHEET
VIII. VENUE: Your answers to the questions below will determine the division of the Court to which this case will be initially assigned. This initial assignment is subject
to change, in accordance with the Court's General Orders, upon review by the Court of your Complaint or Notice of Removal.
QUESTION A: Was this case removed
from state court?
Yes
STATE CASE WAS PENDING IN THE COUNTY OF:
If "no, " skip to Question B. If "yes," check the

box to the right that applies, enter the
corresponding division in response to
Question E, below, and continue from there.
Los Angeles, Ventura, Santa Barbara, or San Luis Obispo
Western
Orange
Southern
Riverside or San Bernardino
Eastern
QUESTION B: Is the United States, or B.1. Do 50% or more of the defendants who reside in
the district reside in Orange Co.?
one of its agencies or employees, a
PLAINTIFF in this action?
YES. Your case will initially be assigned to the Southern Division.

Enter "Southern" in response to Question E, below, and continue
from there.
check one of the boxes to the right
Yes
No
NO. Continue to Question B.2.
If "no, " skip to Question C. If "yes," answer

Question B.1, at right.
B.2. Do 50% or more of the defendants who reside in

the district reside in Riverside and/or San Bernardino
Counties? (Consider the two counties together.)
YES. Your case will initially be assigned to the Eastern Division.

Enter "Eastern" in response to Question E, below, and continue
from there.
NO. Your case will initially be assigned to the Western Division.

Enter "Western" in response to Question E, below, and continue
from there.
QUESTION C: Is the United States, or C.1. Do 50% or more of the plaintiffs who reside in the
district reside in Orange Co.?
one of its agencies or employees, a
DEFENDANT in this action?
YES. Your case will initially be assigned to the Southern Division.

Enter "Southern" in response to Question E, below, and continue
from there.
Yes
INITIAL DIVISION IN CACD IS:
No
No
NO. Continue to Question C.2.
If "no, " skip to Question D. If "yes," answer

Question C.1, at right.
C.2. Do 50% or more of the plaintiffs who reside in the

district reside in Riverside and/or San Bernardino
Counties? (Consider the two counties together.)
YES. Your case will initially be assigned to the Eastern Division.

Enter "Eastern" in response to Question E, below, and continue
from there.
NO. Your case will initially be assigned to the Western Division.

Enter "Western" in response to Question E, below, and continue
from there.
A.
QUESTION D: Location of plaintiffs and defendants?
Orange County
B.
Riverside or San
Bernardino County
C.
Los Angeles, Ventura,
Santa Barbara, or San
Luis Obispo County
Indicate the location(s) in which 50% or more of plaintiffs who reside in this district
reside. (Check up to two boxes, or leave blank if none of these choices apply.)
Indicate the location(s) in which 50% or more of defendants who reside in this
district reside. (Check up to two boxes, or leave blank if none of these choices
apply.)
D.1. Is there at least one answer in Column A?
Yes
D.2. Is there at least one answer in Column B?
No
Yes
No
If "yes," your case will initially be assigned to the
If "yes," your case will initially be assigned to the
SOUTHERN DIVISION.
EASTERN DIVISION.
Enter "Southern" in response to Question E, below, and continue from there.
Enter "Eastern" in response to Question E, below.
If "no," go to question D2 to the right.
If "no," your case will be assigned to the WESTERN DIVISION.

Enter "Western" in response to Question E, below.
QUESTION E: Initial Division?
INITIAL DIVISION IN CACD
Enter the initial division determined by Question A, B, C, or D above:
EASTERN
QUESTION F: Northern Counties?

Do 50% or more of plaintiffs or defendants in this district reside in Ventura, Santa Barbara, or San Luis Obispo counties?
CV-71 (05/16)
CIVIL COVER SHEET
Yes
No
Page 2 of 3
Document
1-1
Filed DISTRICT
06/23/16
COURT,
CENTRAL
OF CALIFORNIA
CIVIL COVER SHEET
IX(a). IDENTICAL CASES: Has this action been previously filed in this court?
NO
YES
NO
YES
If yes, list case number(s):
IX(b). RELATED CASES: Is this case related (as defined below) to any civil or criminal case(s) previously filed in this court?
If yes, list case number(s):
Civil cases are related when they (check all that apply):
A. Arise from the same or a closely related transaction, happening, or event;
B. Call for determination of the same or substantially related or similar questions of law and fact; or
C. For other reasons would entail substantial duplication of labor if heard by different judges.
Note: That cases may involve the same patent, trademark, or copyright is not, in itself, sufficient to deem cases related.
A civil forfeiture case and a criminal case are related when they (check all that apply):
A. Arise from the same or a closely related transaction, happening, or event;
B. Call for determination of the same or substantially related or similar questions of law and fact; or
C. Involve one or more defendants from the criminal case in common and would entail substantial duplication of
labor if heard by different judges.
X. SIGNATURE OF ATTORNEY
(OR SELF-REPRESENTED LITIGANT): / Allan Howard Grant /
DATE: June 23, 2016
Notice to Counsel/Parties: The submission of this Civil Cover Sheet is required by Local Rule 3-1. This Form CV-71 and the information contained herein
neither replaces nor supplements the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. For
more detailed instructions, see separate instruction sheet (CV-071A).
Key to Statistical codes relating to Social Security Cases:

Nature of Suit Code
Abbreviation
Substantive Statement of Cause of Action

All claims for health insurance benefits (Medicare) under Title 18, Part A, of the Social Security Act, as amended. Also,
include claims by hospitals, skilled nursing facilities, etc., for certification as providers of services under the program.
(42 U.S.C. 1935FF(b))
861
HIA
862
BL
All claims for "Black Lung" benefits under Title 4, Part B, of the Federal Coal Mine Health and Safety Act of 1969. (30 U.S.C.
923)
863
DIWC
All claims filed by insured workers for disability insurance benefits under Title 2 of the Social Security Act, as amended; plus
all claims filed for child's insurance benefits based on disability. (42 U.S.C. 405 (g))
863
DIWW
All claims filed for widows or widowers insurance benefits based on disability under Title 2 of the Social Security Act, as
amended. (42 U.S.C. 405 (g))
864
SSID
All claims for supplemental security income payments based upon disability filed under Title 16 of the Social Security Act, as
amended.
865
RSI
All claims for retirement (old age) and survivors benefits under Title 2 of the Social Security Act, as amended.
(42 U.S.C. 405 (g))
CV-71 (05/16)
CIVIL COVER SHEET
Page 3 of 3
Case 5:16-cv-01348-TJH-PLA Document 1-2 Filed 06/23/16 Page 1 of 7 Page ID #:17

Morgan Imports v. Fatboy - Complaint

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Morgan Imports v. Fatboy - Complaint

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Case 5:16-cv-01348-TJH-PLA Document 1 Filed 06/23/16 Page 1 of 13 Page ID #:1

ALLAN H. GRANT, (CSB No. 213658)

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

MORGAN IMPORTS, LLC

CASE NO.: 16-1348

FATBOY THE ORIGINAL, B.V.

JURY TRIAL DEMANDED

COMPLAINT FOR DECLARATORY JUDGMENT

Plaintiff, MORGAN IMPORTS, LLC (hereafter MORGAN), hereby files its

FATBOY THE ORIGINAL, B.V. (hereafter FATBOY) is the

MORGAN seeks a declaratory judgment of non-infringement in that its

Case 5:16-cv-01348-TJH-PLA Document 1 Filed 06/23/16 Page 2 of 13 Page ID #:2

MORGAN also seeks a declaratory judgment of trade dress invalidity

dress in question is not distinctive nor is there a secondary meaning in the

confusingly similar; therefore resulting in non-infringement and/or invalidity of

and 1338 and 15 U.S.C 1121.

MORGAN seeks this relief because FATBOY, the purported owner of

Letters is attached as Exhibit A.

Additionally, FATBOY attached a copy of a draft of a proposed

as Exhibit B (proposed complaint), if MORGAN did not comply.

Landgericht Dsseldorf [LG][Regional Court of Dsseldorf] May 16, 2016 (Ger.)

(Exhibit B, page 6).

Based on information and belief, MORGAN respectfully asserts that

various jurisdictions, including in the Central District of California, asserting trade

dress infringement of the LAMZAC Lounger, wherein FATBOY asserts ownership

Case 5:16-cv-01348-TJH-PLA Document 1 Filed 06/23/16 Page 3 of 13 Page ID #:3

including in the United States and in the Central District of California.

HANGOUT inflatable lounger, have injured or are injuring MORGANs business,

and have created a concrete and immediate justiciable controversy between

litigation hanging over its head.

Plaintiff Morgan Imports, LLC is a limited liability company organized

Defendant Fatboy the Original B.V. is a limited liability company

business at De Steenbok 19 Den Bosch, 5215 MG Netherlands.

JURISDICTION AND VENUE

case for declaratory judgement of non-infringement and invalidity of FATBOYs

FATBOY is subject to personal jurisdiction in the Central District of

California because FATBOY has regularly conducted business in and directed at

Case 5:16-cv-01348-TJH-PLA Document 1 Filed 06/23/16 Page 4 of 13 Page ID #:4

California and because FATBOY, appears to be in the business of licensing,

name www.fatboy.com, which advertises, markets, distributes, and sells LAMZAC

Central District of California. Attached as Exhibit C is a copy of a Whois search for

the website www.fatboy.com showing the Registrant Organization as FATBOY THE

ORIGINAL, B.V. (FATBOY WEBSITE). Furthermore, the events giving rise to

in California and in the Central District in California, where MORGAN is

MORGAN in Texas attached as Exhibit B, if MORGAN did not comply.

Venue is proper in this district pursuant to 28 U.S.C. 1391(b) and (c)

because, among other reasons, FATBOY is subject to personal jurisdiction in this

judicial district, FATBOY conducts or has regularly conducted business in this

in California and the Central District of California.

Case 5:16-cv-01348-TJH-PLA Document 1 Filed 06/23/16 Page 5 of 13 Page ID #:5

MORGAN re-avers and re-states the foregoing Paragraphs 1-13

inclusively as if fully set forth herein.

MORGAN is in the business of distributing and selling various products

including an inflatable lounger under the trademark name HANGOUT.

be used for seating, among other things.

ORIGINAL LAMZAC inflatable beanbag chair until sometime in 2012 in

Based on information and belief, a second inflatable lounger product

commercial sale in February 2015 in Netherlands and Europe only initially.

Based on information and belief, the LAMZAC LOUNGER was not

for sale on a worldwide basis until recently in 2016.

Based on information and belief, the LAMZAC LOUNGER was only

product from the original owner and creator Mr. Oomen.

Based on information and belief, in 2016 FATBOY acquired the