MartFIVE LLC V Telebrands Co - Complaint

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UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

martFIVE, LLC, a Minnesota CASE NO.
limited liability company,

Plaintiff,

vs.

TELEBRANDS CORP., a New
J ersey corporation,
and DOES 1 through 11,

Defendants.

COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff, martFIVE, LLC, (hereinafter Plaintiff or martFIVE) alleges as
follows for its complaint for damages and injunctive relief against Telebrands Corp. and
Does 1-11 (hereinafter Telebrands, Doe-Defendants respectively, or Defendants
collectively).
SUMMARY NATURE OF THE ACTION

1. martFIVE is forced to initiate this action to combat the willful and
intentional infringement of its copyrights, trademarks and trade dress, including
Defendant Telebrands blatant use of deceptive trade practices in its promotion and sale
of two so-called knock-off products, which mimic Plaintiffs products; a cane called
the HURRYCANEand a line of plush childrens toys called Stuffies.
2. Defendants developed, and currently market and sell their deceptively
CASE 0:13-cv-01338 Document 1 Filed 06/04/13 Page 1 of 36
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similar, copied products across the United States through intentionally and substantially
similar advertising content and videos, broadcast on television commercials and various
websites developed and operated by Defendants, including www.trustycane.com,
www.pocketpals.com and www.buypocketpets.com.
3. Telebrands contemptible strategy to usurp others intellectual property
rights and asset values has been prevalent for years. It waits for an entrepreneur to
develop a new product, invest millions of dollars in R&D, product refinements and
related media spending, to generate initial consumer awareness and create product
demand. Once the original product establishes market success, Telebrands develops a
low-quality, cheaply-priced knock-off product which is identical in design and attributes.
It then intentionally mimics the creative marketing campaign with the original products
look & feel, thereby converting the original products identity, advertising campaign,
brand, goodwill, consumer awareness and ultimately the same market share. This creates
consumer confusion, resulting in consumers purchasing Telebrands low quality
products, leaving consumers frustrated and causing irreparable damage to the original,
successful products brand and company.
4. Defendant Telebrands is no stranger to infringement, unfair competition
and deceptive trade lawsuits. Indeed, Plaintiff is aware of over thirty (30) distinct federal
lawsuits since 1990 alleging intellectual property infringement and related claims against
Telebrands and/or its principal, Ajit A.J . Khubani, as defendants. (See ECF Case
Spreadsheet, attached hereto as Exhibit A). As a result, A.J . Khubani, is infamously
known as the Knock Off King within the infomercial advertising industry.
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5. In fact, as recently as last year, Telebrands defended a lawsuit in this very
district which also alleged infringement of copyrights, trademarks, trade dress and other
unfair competition, false designation and deceptive trade practice claims, in My Pillow,
Inc. v. Telebrands, Inc., et al, Case #12-cv-00389-J RT-J J K.
6. Even the U.S. Federal Trade Commission has compelled Telebrands to
agree to pay seven million dollars ($7,000,000) and enter into a Stipulated J udgment for
its deceptive advertising, related to another of Telebrands products, in December 2008.
See http://www.ftc.gov/opa/2009/01/telebrands.shtm.
7. This lawsuit is unfortunately, but perhaps not surprisingly, remarkably
similar to the scores of lawsuits which have been filed against Telebrands repeatedly, by
many legitimate businesses, year after year.
8. Simply put, Telebrands has copied Plaintiff martFIVEs video advertising,
websites, and products, including the entire look and feel and material elements of
Plaintiffs very expensively-developed and refined, protected intellectual property and
content. Telebrands intentionally produces, broadcasts and posts its infringing content
and advertising in the same manner as martFIVE -- on television and the internet --
trading off Plaintiffs intellectual property rights and goodwill, to promote and sell
considerably inferior products called the Trusty Cane, Pocket Pets and/or Pocket
Pals at a fraction of the price of martFIVEs similar products.
9. Telebrands blatant rip-off of martFIVEs video advertising, website
content and product lines has caused, and will continue to cause, substantial consumer
confusion and deception in the marketplace, resulting in calls and confusion regarding the
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copied advertising campaigns and knock-off products.
10. This ongoing consumer confusion is causing substantial, ongoing and
escalating economic and reputational injury to martFIVE. Unless stopped immediately, it
will destroy martFIVEs intellectual property rights, its goodwill and thereby threaten
martFIVEs survival; a good corporate citizen and employer of nearly 150 people
directly and indirectly in and around the Twin Cities metropolitan area.
11. Telebrands is marketing, promoting, advertising, offering for sale and
selling its infringing products through deliberately similar and infringing content in its
advertisements, which has been and continues to be duplicated and distributed through
television video broadcasts and internet websites, which are derivative of, substantially
similar to, trading off and infringing, martFIVEs advertising content, which martFIVE
also distributes thorough its own television broadcasts and internet website
advertisements.
12. Telebrands use of substantially similar content in its advertisements and
choices of media distribution channels, promoting and selling its far inferior knock-off
products in commerce infringes martFIVEs registered copyrights and trademarks. In
addition, Telebrands conduct constitutes trade dress infringement, unfair competition
and false advertising under the federal Lanham Act 15 U.S.C. 1125(a), and violates
Minnesotas Unlawful Trade Practices statutes and Deceptive Trade Practices Act, Minn.
Stat. 325D.09-16 and 325D.43-48, respectively.
13. Plaintiff martFIVE seeks a temporary restraining order, preliminary
injunction, permanent injunction, statutory or actual damages, an award of costs and
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attorneys fees, and other relief, as provided by the various, applicable federal and state
statutes, against all Defendants who are participating with and thereby assisting
Telebrands in its ongoing, illegitimate business practices.
PARTIES

14. Plaintiff martFIVE is a Minnesota limited liability company in good
standing, with its principal offices located in Hennepin County, Minnesota. It does
business in the State of Minnesota.
15. Defendant Telebrands is a New J ersey corporation with its principal offices
located at 79 Two Bridges Road, Fairfield, New J ersey 07004. Telebrands engages in
substantial catalogue, retail, online and television sales via infomercials and websites
across the nation and in the State of Minnesota.
16. Plaintiff is currently ignorant of the true names and identities of the
additional Defendants sued herein by the fictitious designation Does 1 through 11,
inclusive, and therefore sues these Defendants by said fictitious designations (Doe-
Defendants). Plaintiff will seek leave of Court to amend this Complaint to insert their
true names and capacities upon discovery.
17. Based upon further information and belief, Plaintiff alleges that each of the
fictitiously-named Doe-Defendants herein is responsible in some manner and to some
degree, whether contributorily, vicariously, intentionally or otherwise for the injuries,
acts and damages hereinafter alleged, and at all times material herein, each of the
fictitiously-named Doe-Defendants was the partner, joint venturer, co-conspirator,
proprietor, proponent, principal, agent or employee of one or more, or each, of the
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remaining Defendants, and was also acting within the course, scope and purpose of said
partnership, joint venture, conspiracy, service, proprietorship, agency or employment.
18. All Defendants are jointly and severally liable for the actions of each of the
other Defendants.
JURISDICTION AND VENUE
19. This Court has federal subject matter jurisdiction under the copyright laws
of the United States, 17 U.S.C. 101, et seq. and the Lanham Act 15 U.S.C. 1051 et.
seq. J urisdiction is conferred under 17 U.S.C. 501, 28 U.S.C. 1331, 1338(a) and
1338(b) and 15 U.S.C. 1121.
20. This Court also has jurisdiction over the subject matter of this action
pursuant to 28 U.S.C. 1332(a) because this civil action is between citizens of different
States and the amount in controversy exceeds $75,000, exclusive of interest and costs.
21. This action is also based upon state laws protecting against trademark and
trade dress infringement, unfair competition and deceptive trade practices. This Court
has jurisdiction over the state claims pursuant to 28 U.S.C. 1338(b). This Court also
has jurisdiction over the state claims under 28 U.S.C. 1367(a) and the doctrine of
pendent jurisdiction.
22. This Court has personal jurisdiction over Defendants, since each is engaged
in substantial business and/or has committed statutory violations and/or tortious acts
within this judicial district. Specifically, upon information and belief, the Defendants
operate and maintain business operations which identify, develop, import, produce,
advertise, market, promote, offer for sale and sell infringing products through use of
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deceptive, unfair and infringing content on television and the Internet to residents of
Minnesota in a manner that infringes on Plaintiffs copyrights, trademarks and trade dress
and also constitutes unfair competition and false advertising. Consumers within this
judicial district have, in fact, been confused by the substantial similarities of Defendants
advertising for its cane product to those of martFIVE, and reported same in this district.
23. Venue is proper in this district pursuant to 28 U.S.C. 1391(c) because
Defendants are subject to personal jurisdiction in this judicial district, and a substantial
part of the events or omissions giving rise to the claim occurred, and the irreparable harm
being suffered is in, this judicial district.
FACTS COMMON TO ALL COUNTS
Plaintiffs Business
24. martFIVE is a Minnesota-based company, designed to prove both ethical
business leadership and cause-based marketing can and should co-exist within mass
consumer marketing enterprises. Its reputation is stellar with charities, consumers and
industry partners of all types. As a result, martFIVEs vision to change peoples lives
is well on its way to reality, positively impacting the lives of thousands in Minnesota and
nationwide.
25. The HURRYCANE was created to support the critical importance of
using an assistive device when mobility loss occurs for individuals. Embarrassment is a
primary reason of non-compliance to walking cane use, often resulting in falls and
serious injury. The HurryCane was designed to inspire use, in a category where the cane
options with greater stability have been deemed ugly and embarrassing.
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26. Substantial support for veterans motivated martFIVEs decision to
manufacture the HURRYCANE in the United States. Over $750,000 in research and
development has already been invested by Plaintiff to make that happen. The goal is to
fully inspire users with a made-in-America product, which supports significant
manufacturing work for U.S. workers. And it's the only cane endorsed by the Arthritis
Foundation of America.
27. Stuffiesare a line of childrens plush toys, carefully crafted to stimulate
independent play, while forming values-based bonds with children. Stuffiestagline of
"It's What's Inside That Counts", and their personalized story books for each character,
have become popular with parents, grandparents, and children alike. Though in demand
by mass retailers, the brand is carried by local retailers where the economic impact is
greater.
28. The Stuffiesline has won multiple parenting awards, while supporting
dozens of children's causes, including major support for the Toy Bank, cancer causes, and
foster homes. They are a clear force for good in the toy industry.
Plaintiffs Protected Intellectual Properties
HURRYCANE
Copyrights:
29. Plaintiff martFIVE determined the best way to market its HURRYCANE
product was by making direct sales to consumers through internet and television
promotion, or what is commonly referred to as As Seen On TV advertising.
Accordingly, Plaintiff produced video content for a commercial to be broadcast on
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television and internet websites, including, but not limited to, one-minute videos of its
products in a call to action format. The HURRYCANE commercials are entitled
The Cane That Stands Alone", "More Than A Stick" and "Fastest Selling".
30. Prior to filing this Complaint, Plaintiff applied for United States copyright
registrations for its HURRYCANE video commercials entitled The Cane That Stands
Alone", "More Than A Stick" and "Fastest Selling" on May 17, 2013. The applications
for these video commercials are pending. Plaintiff will seek to amend this Complaint to
include the official copyright registration information for these commercials, upon issue
from the U.S. Copyright Office.
31. martFIVE began airing the HURRYCANEcommercials on television,
virtually throughout the United States, on or about J une 7, 2011, and began using the
commercials on the home page of its website around the same timeframe.
32. martFIVE also independently created its original website copy and content,
to express its unique ideas surrounding its HURRYCANE product. Its
HURRYCANEwebsite content was registered with the U.S. Copyright Office on
05/17/2013.
Trademarks:
33. martFIVEs HURRYCANE product enjoys federal trademark protection,
after applying for and receiving three (3) distinct United States Patent and Trademark
Office registrations.
34. It holds registered rights for the standard character mark
HURRYCANEwhich was issued on November 13, 2012 as United States Trademark
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Registration #4,243,464.
35. martFIVE also holds registered rights for the mark TheHurryCane.com
which was issued on February 5, 2013 as United States Trademark Registration #
4,286,043.
36. And finally, Plaintiff holds registered rights for the mark HURRYCANE
The all-terrain cane. , including its stylized design, which includes an image of the
cane, issued on August 14, 2012 as United States Trademark Registration #4,191,792.
37. Plaintiff holds these registrations as well all rights to the indicated marks.
Attached hereto as Exhibits B, C & D are copies of martFIVEs Certificates of
Trademark Registration, related to its HURRYCANE product line.
Stuffies
Copyrights:
38. Plaintiff martFIVE also markets and sells its Stuffiesplush toy product
line by broadcasting advertising videos on television and through various internet
websites, making direct sales to consumers through both methods. Plaintiff has
produced its Stuffiesvideo commercials as one-minute videos, demonstrating the fun
and interesting designs of its Stuffiesproducts, also in a call to action format, entitled
How Much Stuff and "What's In Your Stuffie".
39. Plaintiff applied for United States copyright registrations for its Stuffies
How Much Stuff and "What's In Your Stuffie" video commercials on May 17, 2013.
These applications are also pending. Plaintiff will seek to amend this Complaint to
include the official copyright registration information for the commercials, upon issue
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from the U.S. Copyright Office.
40. martFIVE began airing its Stuffiescommercials on television, virtually
throughout the United States, on or about November 1, 2011 and began using the
commercials on the home page of its website as of the same date.
41. martFIVE also applied for copyright registrations on the designs of its
plush toy Stuffiesline of products on May 17, 2013. Those applications are pending.
Plaintiff will amend this Complaint to include copyright registration information for the
Stuffiesdesigns, and any other copyright registrations it receives, once they are issued
by the U.S. Copyright Office.
42. martFIVE also independently created its original Stuffieswebsite copy
and content, to express its unique ideas surrounding its Stuffies product line. Its
Stuffieswebsite content was registered with the U.S. Copyright Office on 05/17/2013.
43. martFIVE owns the copyrights for all of its videos, website content and
plush toy design works it produced itself or under work-for-hire contracts, whether
registered or unregistered with the U.S. Copyright Office, and whether these works have
been created or will be further developed or derived by martFIVE or its affiliates in the
future (Copyrighted Works), including without limitation all copyrights indicated
above, and has the exclusive right to reproduce, prepare derivative works, distribute,
publicly perform and publicly display them in the United States and abroad.
Trademarks:
44. martFIVEs Stuffies product line also enjoys federal trademark
protection, with two (2) distinct United States Patent and Trademark Office
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registrations.
45. It holds registered rights for the standard character mark Stuffieswhich
was issued on February 5, 2012 as United States Trademark Registration #4,286,271.
46. martFIVE also holds registered rights for the mark Its whats inside that
counts! which was issued on February 5, 2012 as United States Trademark
Registration #4,286,272.
47. Plaintiff holds these registrations as well all rights to the indicated marks.
Attached as Exhibits E & F are copies of martFIVEs Certificates of Trademark
Registration, related to its Stuffiesproduct line.
Telebrands Illegal Acts
48. Telebrands infringement and deceptive business practices are clear when
one considers the nearly infinite number of design combinations and functions available
for production choices within both the toy and walking cane spaces.
49. To illustrate, Telebrands intentionally copied Stuffies7-pockets design,
situating each pocket of their knock-off plush toys in the same place as Stuffies, when
Telebrands could have considered and designed any number of other combinations.
martFIVE evaluated hundreds of animal designs, but Telebrands carefully copied
martFIVEs exact animals.
50. Similarly, Telebrands also could have chosen to innovate in the walking
cane space, but instead deliberately chose the exact mix and features and design elements
found in the HURRYCANE.
51. Perhaps most tellingly, with Telebrands 20-plus years of advertising
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experience, to develop advertising spots that obviously copy martFIVEs talent casting,
content and execution is not the result of coincidence, it is the result of Telebrands
deceitful understanding of the millions of dollars in goodwill established through a multi-
year, multi-million dollar testing program, now copied and destroyed by their deliberate
acts.
Copyright Infringement of the Stuffies product designs
52. martFIVEs copyrighted designs in its Stuffiesline of products have been
infringed by Telebrands and the Doe-Defendants, through the unauthorized acts of
creating, reproducing, manufacturing, importing, distributing and making derivative
works of martFIVEs copyrighted works. The images below demonstrate the similarities
of Plaintiffs Stuffiesline, to the later-created, infringing works of Telebrands Pocket
Pals and Pocket Pets line of products:
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Copyright Infringement of the Stuffies Advertisements and Marketing Copy

53. Similarly, martFIVEs copyrighted content in its advertising videos for its
Stuffiesline of products have been infringed by Telebrands and the Doe-Defendants,
through their unauthorized acts of creating, reproducing, manufacturing, importing,
distributing and making derivative works of martFIVEs copyrighted works. The images
below demonstrate the similarities of Plaintiffs Stuffiesadvertising videos, to the later-
created, infringing works of Telebrands advertising videos for their Pocket Pals and
Pocket Pets:
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16

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Copyright Infringement In the HURRYCANE Advertisements

54. Similarly, martFIVEs copyrighted content in its advertising videos for its
HURRYCANEproducts have been infringed by Telebrands and the Doe-Defendants,
through their unauthorized acts of creating, reproducing, manufacturing, importing,
distributing and making derivative works of martFIVEs copyrighted works. The images
below demonstrate the similarities of Plaintiffs HURRYCANE advertising videos, to
the later-created, infringing works of Telebrands advertising videos for their Trusty
Cane:
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19

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Substantial Similarities of Trademark/Trade Dress in the Advertisements

55. On or about April 8, 2013 well after martFIVEs commercials began to
air on television and on its websites, and with actual knowledge of martFIVE, its
products, trademarks, design patent as well as its copyright-protected product design,
television and internet advertising, Telebrands caused advertisements to be produced and
began to publically broadcast and make available one or more advertising spots with the
intentionally-same look and feel, for both of its virtually identical, knock-off, yet inferior,
products called the Trusty Cane and Pocket Pets and/or Pocket Pals.
56. Telebrands offers its Trusty Cane product for sale at $19.99 for the first
cane, plus 7.99 S&H, then $12.99 for 2
nd
cane; dramatically below martFIVEs
advertised price of $39.95 for a single cane.
57. Telebrands offers its Pocket Pets/Pocket Pals products for sale at $19.99
each, which is also dramatically below martFIVEs advertised price of $29.95 for each
Stuffiestoy.
58. Telebrands knock off television advertisements are also available on its
websites www.TrustyCane.com, www.PocketPals.com and www.BuypocketPets.com. Each of these
websites also host videos and contain advertising copy which were derived from, share
substantial similarities with, and infringe martFIVEs copyrighted advertisements.
59. A sample of the most glaring features of Telebrands knock off
advertisements related to martFIVEs HURRYCANE vs. Telebrands The Trusty Cane
are compared below:
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HURRYCANE TRUSTY CANE
Shows the subject cane being folded up and
snapped back out multiple times
Focuses on the tri-fold design and shows
the subject cane being folded up and
snapped back out multiple times
Displays the pivoting base with two blue
arrows going around it to demonstrate 360
degree rotation
Displays the pivoting head with two green
arrows going around it to demonstrate 360
degree rotation
Shows a man in a dark suit dropping other
canes and the subject cane left standing
alone
Shows a man in a dark suit dropping
another cane and the subject cane left
standing alone
Shows an elderly lady shopping at a
grocery store and leaving the subject cane
standing up while getting an item
Shows an elderly lady shopping at a bakery
and leaving the subject cane standing up
while getting an item
Shows different surfaces the subject cane
will work on (sand, gravel, snow)
Shows different surfaces the subject cane
will work on (sand, gravel, snow & grass)
The website address is advertised as
HurryCane.com with a capital H and C
and scrolling advertisements on the main
page
The website address is advertised as
TrustyCane.com with a capital T and C
and scrolling advertisements on the main
page

60. A sample of the most glaring features of Telebrands knock off
advertisements related to martFIVEs Stuffiesvs. Telebrands Pocket Pals/Pets are
compared below:
STUFFIES POCKET PALS/PETS
Shows various small children putting items
into the stomach, legs and mouth of the toy,
with a girl stating that My Stuffie keeps
my candy from my brother
Shows various small children putting items
into the stomach, legs and mouth of the toy,
with a girl stating that It keeps my secret
stuff safe
Showing multiple kids putting a lot of
items inside of the toy and asks How
much stuff can you stuff in a Stuffie till
your Stuffies stuffed enough stuff
Showing multiple kids putting a lot of
items inside of the toy and asks Who can
fit most inside stuff inside them?
Free story book and mystery gift inside Comes with surprise toy inside
Main webpage shows a child hugging a
turtle version of the toy at the bottom
Main webpage page shows a child hugging
a turtle version of the subject toy
Main webpage shows all of the different
animal versions of the toy with a dog
version as first toy
Main webpage shows all of the different
animal versions of the toy with a dog
version as first toy
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7 pockets in each toy, located in the mouth,
tongue, body and on each leg
7 pockets in each toy, located in the mouth,
tongue, body and on each leg

61. On information and belief, Telebrands had access to and had actual
knowledge of martFIVE, martFIVEs products and designs, martFIVEs trademarks, and
martFIVEs video commercials, aired on both television and websites. In a flagrant and
oft-repeated series of decisions and acts, Telebrands and the Doe-Defendants decided to
copy martFIVEs protected properties for financial gain by trading upon, copying,
marketing, manufacturing and distributing substantially similar advertising and products,
in Telebrands intentional attempt to knock them off.
62. Based upon information and belief, Telebrands ads for its products have
aired, been distributed and disseminated in the same markets for martFIVEs products.
63. Through their advertising campaigns, Telebrands and its agents,
representatives, and authorized affiliates have directed customers to websites developed
and controlled by Telebrands, located at www.TrustyCane.com, www.PocketPets.com and
www.BuypocketPets.com. Those websites, in turn, display Telebrands knock off
advertisements and offer the infringing or substantially similar products for sale, through
the intentional use of substantially similar advertisements in their presentation, content,
look and feel.
64. martFIVEs offices have received inquiries and calls from concerned
persons and consumers, who had confused Telebrands products and advertising with
those of martFIVE.
65. This consumer confusion and deception creates and unfair and misleading
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impression that Telebrands inferior knock off products of are the same as martFIVEs
product, or comes from martFIVE or a source affiliated with it. This deliberate falsehood
was created by Telebrands and the Doe-Defendants to brazenly and intentionally take
unfair advantage of the popularity and goodwill of martFIVEs HURRYCANEand
Stuffiesbrands, products and marketing campaigns.
66. Based upon information and belief, martFIVE has lost and will continue to
lose substantial sales, revenues and consumer confidence in its quality products.
Telebrands has enjoyed, and unless enjoined, will continue to enjoy, substantial wrongful
gains and other benefits, as a result of Telebrands illegal conduct. Such illegal conduct
includes, but is not limited to, Telebrands advertising, marketing, promotion, offering for
sale, and sale of an inferior but same type of product through confusingly similar
advertisements being delivered through the exact same media and sales outlets:
television, Internet, retail and catalogue sales.
Telebrands Modus Operandi: the Knock Off King
67. Telebrands principal A.J . Khubani has gained notoriety as the reputed
Knock Off King of the infomercial advertising industry. Telebrands has a long and
sordid history of intellectual property infringement and is well-known as a hardened,
serial, repeat infringer.
68. For the last twenty years, its modus operandi has been to identify a new
product invented by another which is being sold on TV or at retail, fabricate a knock-off
version of that product, infiltrate the market with its knock-off product and advertise it
with a look-alike broadcast video commercial, and substantially-similar website content,
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then make the products available at retail locations and through the Internet and
catalogues, merely to create consumer confusion and usurp sales and revenues from the
original, authentic product(s).
69. As public records reveal, Telebrands has been sued numerous times for this
repeated business model.
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martFIVE is simply Telebrands latest victimone in a
long string of such victims.
70. In fact, even the U.S. Government has had concerns about Telebrands
business and marketing practice. In December 2008, Telebrands agreed to pay $7 million
and enter into a Stipulated J udgment with the Federal Trade Commission for deceptive
advertising with respect to one of its knock off products. The settlement came after the
Fourth Circuit Court of Appeals, in Telebrands Corp. v. FTC, 457 F.3d 354 (2006),
affirmed an Administrative Law J udges imposition of the following injunction on
Telebrands:

[Telebrands] . . . in connection with the manufacturing, labeling, advertising,

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My Pillow, Inc. v. Telebrands, Inc., et al, 12-cv-00389-J RT-J J K (D.Minn. 2012);
Edmark Industries v. Telebrands Corp., et al., 96-cv-04067 (C.D. Cal. 1996); Welcome
Co. Ltd. v. Telebrands Corp, et al., 2:97-cv-09379 (C.D. Cal. 1997); Bragel International
Inc. v. Telebrands Corp., 05-cv-01141 (C.D. Cal. 2005); Peticure LLC v. Telebrands
Corp., 08-cv-00345 (E.D. Tex. 2008); Meyer Manufacturing Co. v. Telebrands Corp.,
11-cv-03153 (E.D. Cal. 2011); Ymax Corp. v. Telebrands Corp., 08-cv-03307 (D. NJ
2008); Galant v. Telebrands Corp., 35 F. Supp. 2d 378, 393-94 (D. N.J . 1998); Carson
Optical, Inc. v. Telebrands Corp. et al, 07-cv-08020 (D. N.J . 2007); Milestone Scientific
Inc. et al v. Telebrands Corp., 05-cv-03706 (S.D. NY 2005).

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promotion, offering for sale, sale, or distribution of Ab Force, any other EMS device, or
any food, drug, dietary supplement, device, or any other product, service or program,
shall not make any representation, in any manner, expressly or by implication, about
weight, inch, or fat loss, muscle definition, exercise benefits, or the health benefits,
safety, performance, or efficacy of any product, service, or program, unless, at the time
the representation is made, [Telebrands] possess[es] and rel[ies] upon competent and
reliable evidence, which when appropriate must be competent and reliable scientific
evidence, that substantiates the representation.

71. As the allegations in this Complaint demonstrate, Telebrands is continuing
to make false or misleading representations about the origin and benefits of its products.
72. Telebrands products and advertising are nothing more than inferior knock
offs of martFIVEs HURRYCANEand Stuffies product lines and campaigns.
COUNT I COPYRIGHT INFRINGEMENT
PURSUANT TO 17 U.S.C. 101 AND 501, ET SEQ.

73. martFIVE re-alleges and incorporates by reference as though set forth in
full the allegations contained in the paragraphs above.
74. martFIVE is the owner of the Copyrighted Works and has the exclusive
right to reproduce, prepare derivative works, distribute, publicly perform and publicly
display the Copyrighted Works in the United States.
75. Defendants have infringed martFIVEs exclusive copyrights, including the
rights of reproduction, distribution, creating derivatives, public performance and/or
public display, in violation of Sections 106 and 501 of the Copyright Act, 17 U.S.C.
106 and 501.
76. Defendants acts have been deliberate, willful, intentional and purposeful,
in reckless disregard of and with indifference to martFIVEs rights.
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77. As a direct and proximate result of Defendants forgoing acts and conduct,
martFIVE has sustained and will continue to sustain irreparable injury for which there is
no adequate remedy at law. Unless enjoined and restrained by this Court, Defendants
will continue to infringe martFIVEs Copyrighted Works. Plaintiff is entitled to
injunctive relief pursuant to 17 U.S.C. 502.
COUNT II - TRADEMARK INFRINGEMENT
PURSUANT TO 15 U.S.C. 1114 AND 15 U.S.C. 1125(A)

79. martFIVE is the owner of United States Trademark Registrations
#4,243,464, #4,286,043, #4,191,792, #4,286,271, #4,286,272.
80. Defendants have used in commerce in the United States one or more of the
same mark(s) or confusingly similar marks, to identify their products, in such a manner as
to cause and to result in a likelihood of confusion, as well as, on information and
belief, and actual confusion, as to the source, origin, or affiliation of martFIVEs
products and/or Defendants' products.
81. Defendants are not authorized or licensed by martFIVE to advertise,
market, promote, offer for sale or sell programming under or in connection with
martFIVEs marks.
82. Defendants conduct is likely to confuse, mislead and deceive members of
the public as to the origin of Telebrands goods or services, or otherwise cause the public
28
to believe Telebrands is an authorized distributor of martFIVEs products.
83. Defendants conduct constitutes infringement in violation of section 32 of
the Lanham Act, 15 U.S.C. 1114, and section 43(a) of the Lanham Act, 15 U.S.C.
1125(a), to the substantial and irreparable injury of the public and of martFIVEs
business reputation and goodwill.
will continue to infringe martFIVEs trademarks. Accordingly, this Court should enjoin
and restrain Defendants from committing any further such acts.
COUNT III COMMON LAW TRADEMARK INFRINGEMENT

86. martFIVE re-alleges and incorporates by reference as though set forth
in full the allegations contained in the paragraphs above.
87. Defendants conduct constitutes infringement of martFIVEs common law
trademark rights to the substantial and irreparable injury of the public and martFIVEs
business reputation and goodwill.
29
will continue to infringe martFIVEs trademarks. Accordingly, this Court should enjoin
and restrain Defendants from committing any further such acts.

COUNT IV TRADE DRESS INFRINGEMENT

91. martFIVE is the owner of common law rights throughout the United States
in the HURRYCANEs and Stuffies trade dress through martFIVEs use and
promotion in interstate commerce.
92. The HURRYCANEsand Stuffiestrade dress is well known among
consumers and has come to be associated exclusively with martFIVE.
93. The HURRYCANEsand Stuffiestrade dress was distinctive long
before Defendants began offering its inferior knock off version of their products for
sale.
94. The HURRYCANEsand Stuffiestrade dress is non-functional.
95. Defendants unauthorized use, sale, and distribution of its copies of
martFIVEs products is likely to cause confusion, to cause mistake, or to deceive as to the
source, affiliation, connection, association, sponsorship, or approval of Defendants copy
of the martFIVE products.
96. Defendants unauthorized use, sale, and distribution of Defendants copy of
martFIVEs products constitute trade dress infringement in violation of Section 43(a) of
30
the Lanham Act, 15 U.S.C. 1125(a).
97. Defendants infringement of martFIVEs trade dress has been and
continues to be intentional, willful, and without regard to martFIVEs rights.
98. Defendants have gained profits by virtue of their infringement of
martFIVEs trade dress rights.
99. martFIVE also has sustained damages as a direct and proximate result of
Defendants infringement of martFIVEs trade dress rights, in an amount to be proven at
trial.
100. Under 15 U.S.C. 1116, martFIVE is entitled to an injunction against
Defendants continuing infringement of martFIVEs trade dress rights. Unless enjoined
and restrained by this Court, Defendants will continue to cause martFIVE great and
irreparable injury that cannot fully be compensated or measured in money. martFIVE has
no adequate remedy at law.
101. Because Defendants actions have been committed with intent to damage
martFIVE and to confuse and deceive the public, martFIVE is entitled to treble its actual
damages or Defendants profits, whichever is greater, and to an award of costs and, this
being an exceptional case, reasonable attorneys fees under 15 U.S.C. 1117(a) and (b).
COUNT V UNFAIR COMPETITION AND
FALSE DESIGNATION OF ORIGIN 15 U.S.C. 1125(A)

31
103. The Copyrighted Works which Defendants are falsely reproducing,
distributing, publicly performing and/or publicly displaying indicate that Telebrands is
authorized to reproduce, distribute, publicly perform and/or publicly display the
Copyrighted Works.
104. Upon information and belief, Defendants have used and are continuing to
use forms of false designations of origin and false descriptions which tend to falsely
describe or represent such goods and have caused such goods to enter into commerce
with full knowledge of the falsity of such designation of origin.
105. Defendants have and continue to misrepresent to members of the
consuming public that the Copyrighted Works being reproduced, distributed publicly
performed and/or publicly displayed are genuine, non-infringing products.
106. Defendants advertising, promotion, marketing, offer for sale and sale of
goods and services bearing martFIVEs trademarks and trade dress is likely to confuse,
mislead and deceive the public as to the origin, sponsorship or approval of Telebrands
goods and services, or to cause the public to falsely believe that Telebrands is authorized
to advertise, market, promote, offer for sale and sell goods and services bearing
martFIVEs trademark and Trade Dress.
107. Defendants actions constitute unfair competition, false advertising, false
designation of origin and/or false or misleading description of fact, in violation of section
43(a) of the Lanham Act, 15 U.S.C. 1125(a).
32
will continue to infringe martFIVEs copyrights and trademarks. Accordingly, the Court
should enjoin and restrain Defendants from committing any further such acts.
COUNT VI MINNESOTA UNFAIR COMPETITION LAW

111. This cause of action arises under Minnesota's law of trademark
infringement and unfair competition.
112. Defendants' activities complained of constitute infringement
of martFIVEs common law rights in the State of Minnesota, and unfair competition.
113. Plaintiff has been damaged by the actions of Defendants in an amount
which will be proven at trial.
114. If the acts of Defendants are allowed to continue, martFIVE will continue
to suffer irreparable injury for which it has no adequate remedy at law.
COUNT VII MINNESOTA DECEPTIVE AND
UNLAWFUL TRADE PRACTICES

116. This cause of action arises under the Minnesota Deceptive Trade Practices
33
Act, Minn. Stat. 325D.09 et seq. and 325D.43 et seq.
117. Defendants' activities complained of constitute violations of the Minnesota
Deceptive Trade Practices Act, Minn. Stat. 325D.09 et seq. and 325D.43 et seq.
118. If the acts of Defendants are allowed to continue, martFIVE will continue
to suffer irreparable injury for which it has no adequate remedy at law.

PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment as follows:

1. That judgment be entered for Plaintiff and against Defendants on each of
Plaintiffs claims for relief;
2. For a temporary restraining order, preliminary and permanent injunction
that Defendants and their agents, servants, employees, attorneys and those acting in
concert or participation with any of them:
i. Delete and disable access to Plaintiffs Copyrighted Works,
including but without limitation, by deleting all copies of Plaintiffs
Copyrighted Works from any database, server, or other storage
device owned or controlled by Defendants;
ii. Cease and refrain from reproducing, preparing derivative works,
distributing, publicly performing, publicly displaying or otherwise
infringing Plaintiffs Copyrighted Works, including without
limitation, ceasing and refraining from transmitting, copying, and/or
broadcasting Plaintiffs Copyrighted Works;
34
iii. Refrain from using martFIVEs mark or any other confusingly
similar mark in connection with the sale, advertisement, marketing
or promotion of any goods or service or any other similar
infringement of Plaintiffs trademark rights;
iv. Refrain from engaging in unfair competition by advertising,
promoting, marketing, selling or offering for sale their goods and
services or otherwise using martFIVEs mark and/or trade dress
in such a way as to mislead, deceive and/or confuse the origin of any
of Plaintiffs product;
v. Refrain from engaging in any conduct that tends to confuse, mislead
or deceive members of the public into believing that the Copyrighted
Works reproduced, distributed, publicly performed and/or publicly
displayed by Defendants are sponsored, approved or authorized by
Plaintiff;
vi. to recall and deliver up for destruction all advertising, promotional
or marketing materials or other products that infringe Plaintiffs
trademark, trade dress or copyrights.
vii. to engage in corrective advertising to dispel the confusion caused by

Defendants wrongful acts; and

viii. within thirty days after service of judgment with notice of entry
thereof upon it, be required to file with the Court and serve upon
Plaintiffs attorneys a written report under oath setting forth in detail
35
the manner in which Defendants have complied with the foregoing
paragraphs.
3. For maximum statutory damages with respect to each copyrighted work and
trademark and trade dress infringement, or for such other amount as may be proper or,
alternatively, at Plaintiffs election, full restitution, actual damages suffered as a result of
the infringement, an equitable accounting and disgorgement of all revenues and/or profits
wrongfully derived by Defendants from their copyright, trademark and trade dress
infringement, false designation of origin, false advertising, and unfair competition.
4. Any and all damages sustained by Plaintiff resulting from Defendants
wrongful and infringing acts.
5. For Plaintiffs attorneys fees and full costs.
6. That Plaintiff be awarded enhanced damages against Defendants.
7. That this case is exceptional pursuant to 15 U.S.C. 1117 and 17 U.S.C.
504.
8. That Plaintiff be awarded pre-judgment interest on its judgment.
9. For such other and further relief as this court deems just and proper.

JURY DEMAND

Plaintiff, pursuant to Fed. R. Civ. P. 38(b), demands a trial by jury as to all issues
so triable.

Date: June 4, 2013.
HELLMUTH & JOHNSON, PLLC
sl Russell M. Spence
Russell M. Spence, Jr., ID No. 0241052
8050 West 78th Street
Edina, MN 5 54 3 9
Email: mspence@hjlawfirm.com
Telephone: (952) 941-4005
Facsimile: (952) 941-2337
ATTORNEYS FOR PLAINTIFF
martFIVE, LLC
VERIFICATION
STATE OF MINNESOTA)
)ss
COUNTY OF HENNEPIN)
J. Brent Longval, being duly sworn, deposes and states as follows:
1. I am the Chief Financial Officer for martFIVE, LLC and an agent of
Plaintiff for purposes of executing this document.
2. I have read the forgoing Complaint and subscribe on behalf of Plaintiff,
noting that this Complaint has been prepared with the assistance of employees and
counsel and on the advice of counsel, and is based upon information obtained from
Plaintiff. The factual allegations in this Complaint are true and correct to the best of my
present knowledge, information and e l ~
~ ( /
Subscribed and sworn to before me
this L{r.:: day of :]\.)'"""--- , 20 13.
Notary Public
36
COURTNEY IICHEU. tWENER
NOTARY PUBLIC MINNESOTA
My Commtssoon Expjtes .1111. 31, 201
.
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CASE 0:13-cv-01338 Document 1-1 Filed 06/04/13 Page 1 of 6
HURRY CANE
Reg. No. 4,243,464
MART 5 LLC (MINNESOTA LIMITED LIABILITY COMPANY)
110 CHESHIRE LN #200
Registered Nov. 13, 2012 MINNETONKA. MN 553051041
Int. Cl.: 18 FOR: WALKING CANE, IN CLASS 18 (U.S. CLS. I. 2. ~ . 22 AND 41 ).
FlRST USE 6-7-2011; IN COMMERCE 6-7-2011.
TRADEMARK
PRINCIPAL REGISTER
THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY PAR-
TICULAR FONT, STYLE. SIZE. OR COLOR.
SN 85-494,675. FILED 12-14-2011.
BRIAN Pl:-.10. EXAMINING ATrDRNEY
EXHIBIT
I S
TheHurryCane.com
Reg. No. 4,286,043
Registered Feb. 5, 2013
Int. Cl.: 18
TRADEMARK
PRINCIPAL REGISTER
MARTFIVE, LLC (MINNESOTA LIMITED LIABILITY COMPANY)
SUITE200
II 0 CHESHIRE LANE
MINNEAPOLIS. MN SS30S
FOR: CANES AND WALKING STICKS. IN CLASS 18 (U.S. CLS. I, 2, 3, 22AND41).
FIRST USE 10.17-2011; IN COMMERCE 12-14-2011.
TICULAR FONT, STYLE. SIZE. OR COLOR.
SER. NO. 85-660.S04, FILED 6-2S-201 2.
JAMES A. RAUEN, EXAMINING ATIORNEY
EXHIBIT
IG
Reg. No. 4,191,792
MARTS LLC (MINNESOTA LIMITED LIABILITY COMPANY)
SUITE200
Registered Aug. 14, 2012 110 CHESHIRE LANE
Int. Cl.: 18
TRADEMARK
PRINCIPAL REGISTER
MINNESOTA. MN SS30SI041
FOR: WALKING CANE. IN CLASS 18 (U.S.CLS. I. 2. J. 22 AND41).
FIRST USE 1'172011; IN COMMERCE 1'1-72011.
NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE "THE ALL-TERRAIN CANE".
APART FROM THE MARK AS SHOWN.
THE MARK CONSISTS OF A SWIRL WITH A CANE IN THE CENTER: ON THf RIGHT OF
THE CANE IS THE WORD "HURRYCANE" IN UPPERCASE LETTERS. AND BELOW
"HURRYCANE" IS THE WORDING ''THE ALL-TERRAIN CANE.".
SN 8 ~ - J ~ 2 . 9 8 ~ . FILED 6-22-2011.
TINA BROWN. EXAMINING ATTORNEY
EXHIBIT
I D
Reg. No. 4,286,271
Int. Cl.: 28
TRADEMARK
PRINCIPAL REGISTER
Stuffies
MARTIIVE, LLC (MINNESOTA LIMITED LIABILITY COMPANY), DBA STIJFFIES
SUITE200
II 0 CHESHIRE LANE
MINNEAPOLIS, MN 55305
FOR: STIJFFED AND PLUSH TOYS; STUFFED DOLLS AND ANIMALS; STUFFED TOY
ANIMALS; STUFFED TOYS, IN CLASS 28 (U.S. CLS. 22, 23, 38 AND SO).
FIRST USE 111-2011; IN COMMERCE 11-16-2011.
THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY PAR
TICULAR FONT, STYLE, SIZE, OR COLOR.
SER. NO. 85-674,204, FILED 7-11-2012.
JAMES A. RAUEN, EXAMINING ATTORNEY
EXHIBIT
I E
It's what's inside that
counts!
Reg. No. 4,286,272
Int. Cl.: 28
TRADEMARK
PRINCIPAL REGISTER
M1ila:Ohc1erera.I'IIINIISIII" 1'11,..
MARTFIVE, LLC (MTNNESOTA LIMITED LIABILITY COMPAfi.'Y), DBA STUFFJES
SUITE200
II 0 CHESHIRE LANE
MINNEAPOLIS, MN SS30S
FOR: STUFFED AND PLUSH TOYS; STUFFED DOLLS AND ANIMALS; STUFFED TOY
ANrMALS; STUFFED TOYS, IN CLASS 28 (U.S. CLS. 22, 23, 38 AND SO).
FIRST USE 11-1-201 I; IN COMMERCE 11-16-2011.
TICULAR FONT, STI1.E, SIZE, OR COLOR.
SER. NO. 85-674,71 I, FILED 7-11-2012.
JAMES A. RAUEN. EXAMTNTNG ATTORNEY
EXHIBIT
I F
JS 44 (Rev. 12112)
CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadin&s or other papers as required by 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 Clerk of Court for the
purpose ofinitiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS
martFIVE, LLC
DEFENDANTS
Te1ebrands Corp.
(b) County of Residence ofFirstListed Plaintiff _______ _ County of Residence of First Listed Defendant Essex County, New Jersey
(EXCEPT IN U.S. PLAINTIFF CASES)
(c) Attorneys (Firm Name, Address, and Telephone Number)
Russell M. Spence, Jr.
Hellmuth & J\l,hnson, PLLC
8050 West 78' Street
Edina, MN 55439
(952) 941-4005
II. BASIS OF JURISDICTION (Place an "X" in One Box Only)
0 I U.S, Government
Plaintiff
0 2 U.S. Government
Defendant
1813 Federal Question
(US. Government Not a Party)
0 4 Diversity
(Indicate Citizenship of Parties in Item III)
IV. NATURE OF SUIT (Pince an "X" in One Box Only)
(IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOL YEO.
Attorneys (If Known)
Robert T. Maldonado
Jeffrey L. Snow
Cooper & Dunham LLP
30 Rockefeller Plaza
New York, NY 10112
Ill. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
PTF DEF PTF DEF
Citizen of This State 0 I 0 I Incorporated or Principal Place 0 4 0 4
of Business In This State
Citizen of Another State 02 0 2 Incorporated and Principal Place 0 05
of Business In Another State
Citizen or Subject of a 03 0 3 Foreign Nation
0 6 06
Foreign Country
I CONTRACT TORTS IIORFETTUREIPENAt.TY lJANKRUPTC'V OTIJER STA'I'UTES
I
0 II 0 Insurance PERSONAL INJURY PERSONAL INJURY 0 625 Drug Related Seizure 0 422 Appeal 28 USC 158 0 375 False Claims Act
0 120 Marine 0 310 Airplane 0 365 Personal Injury - of Property 21 USC 881 0 423 Withdrawal 0 400 State Reapportionment
0 130 Miller Act 0 315 Airplane Product Product Liability 0690 Other 28 usc 157 0 410 Antitrust
0 140 Negotiable Instrument Liability 0 367 Health Care/ 0 430 Banks and Banking
0 !50 Recovery of Overpayment 0 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 0 450 Commerce
& Enforcement of Judgment Slander Personal Injury 181820 Copyrights 0 460 Deportation
0 !51 Medicare Act 0 330 Federal Employers' Product Liability 0 830 Patent 0 470 Racketeer Influenced and
0 !52 Recovery of Defaulted Liability 0 368 Asbestos Personal 0 840 Trademark Corrupt Organizations
Student Loans 0 340 Marine Injury Product 0 480 Consumer Credit
(Excludes Veterans) 0 345 Marine Product Liability .LA:80_R SOCIAL SECURITY 0 490 Cable/Sat TV
0 !53 Recovery of Overpayment Liability PERSONAL PROPERTY 0 710 Fair Labor Standards 0861 HIA(I395ff) 0 850 Securities/Commodities/
of Veteran's Benefits 0 350 Motor Vehicle 0 370 Other Fraud Act 0 862 Black Lung (923) Exchange
0 160 Stockbolders' Suits 0 355 Motor Vehicle 0 3 71 Truth in Lending 0 720 Labor/Management 0 863 DIWC/DIWW (405(g)) 0 890 Other Statutory Actions
0 190 Other Contract Product Liability 0 380 Other Personal Relations 0 864 SSID Title XVI 0 891 Agricultural Acts
0 195 Contract Product Liability 0 360 Other Personal Property Damage 0 740 Railway Labor Act 0 865 RS! (405(g)) 0 893 Environmental Matters
0 196 Franchise Injury 0 385 Property Damage 0 751 Family and Medical 0 895 Freedom of Information
0
362 Personal Injury - Product Liability Leave Act Act
Medical MnlpraQUce 0 790 Other Labor Litigation 0 896 Arbitration
REAL PROPER'n' CJVJL Rl GRTS PRISOI\'ER P.ETI1'10NS 0 791 Employee Retirement REDERAL TAX SUITS 0 899 Administrative Procedure
l...J 210 L1nd Condemnation I g 440 Other Civil "Rights lfabcas Corpus: Income Security Act 0 870 Taxes (U.S. Plaintiff Act/Review or Appeal of
0 220 Foreclosure 0 441 Voting 0 463 Alien Detainee or Defendant) Agency Decision
0 230 Rent Lease & Ejectment 0 442 Employment 0 510 Motions to Vacate 0 871 IRS-Third Party 0 950 Constitutionality of
0 240 Torts to Land 0 443 Housing! Sentence 26 usc 7609 State Statutes
0 245 Tort Product Liability Accommodations 0 530 General
0 290 All Other Real Property 0
445 Amer. w/Disabilities 0 535 Death Penalty IMMIGRATION
Employment Other:
NaturallzaltOO Applle<iliOn
0
446 Amer. w/Disabilities 0 540 Mandamus & Other 0 465 Other Immigration
Other 0 550 Civil Rights Actions
0 448 Education 0 555 Prison Condition
0 560 Civil Detainee-
Conditions of
Confinement
V. ORIGIN (Piacean "X"inOneBoxOnly)
1 Original U 2 Removed from U 3 Remanded from
Proceeding State Court Appellate Court
U 4 Reinstated or
Reopened
U 5 Transferred from U 6 Multidistrict
Another District Litigation
VI. CAUSEOF
ACTION
VII. REQUESTED IN
COMPLAINT:
(specify)
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
17 U.S.C. 101 AND 501; 17 U.S.C. 106 and 501; 15 U.S.C. 1114; 15 U.S.C. 1125(A); Section 43(a) of the Lanham Act, 15 U.S.C.
1125 a : 15 U.S.C. 1116; 15 U.S.C. 1117 a and ; 15 U.S.C. 1125 A
Brief description of cause:
Co ri ht and trademark infrin ement; trade dress and unfair com clition violations
0 CHECK IF THIS IS A CLASS ACTION DEMAND$ In excess of$75,000 CHECK YES only if demanded in complaint:
UNDER RULE 23, F.R.Cv.P. JURYDEMAND: i81Yes 0 No
VIII. RELATED CASE(S)
IF ANY
(See instmclions):
JUDGE DOCKET NUMBER
DATE
06/03/2013
FOR OFFICE USE ONLY
SIGNATURE OF ATTORNEY OF RECORD
s/Russell M. Spence, Jr.
I
RECEIPT# AMOUNT APPLYING IFP JUDGE MAG. JUDGE
JS 44 Reverse (Rev. 12112)
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference ofthe United States in September 1974, is
required for the use ofthe Clerk of 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. The attorney filing a case should complete the form as follows:
I. (a)
(b)
(c)
II.
III.
IV.
v.
VI.
VII.
VIII.
Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name ofthe county where the first listed plaintiff resides at
the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In
land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment,
noting in this section "(see attachment)".
Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one ofthe boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box I or 2 should be marked.
Diversity of citizenship. ( 4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
Residence (citizenship) of Principal Parties. This section ofthe JS 44 is to be completed if diversity of citizenship was indicated above. Mark
this section for each principal party.
Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is
sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more
than one nature of suit, select the most definitive.
Origin. Place an "X" in one of the six boxes.
Original Proceedings. (I) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407.
When this box is checked, do not check (5) above.
Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.

MartFIVE LLC V Telebrands Co - Complaint

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MartFIVE LLC V Telebrands Co - Complaint

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UNITED STATES DISTRICT COURT

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