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A. Eric Bjorgum (State Bar No. 198392) Marc Karish (State Bar No. 205440) KARISH & BJORGUM PC 16 N. Marengo Ave., Suite 307 Pasadena, CA 91101 Telephone: (213) 785-8070 Facsimile: (626) 795-6321 E-Mail: eric.bjorgum@kb-ip.com Attorneys for Plaintiff dreamGEAR, LLC

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

DREAMGEAR, LLC, a California limited liability company,

) Case No. CV ) ) COMPLAINT FOR: Plaintiff, ) ) 1) PATENT INFRINGEMENT vs. ) 2) FALSE DESIGNATION OF ) ORIGIN TRADE DRESS SAKAR INTERNATIONAL, INC., a ) 3) COMMON LAW UNFAIR New York corporation, and DOES 1-10,) COMPETITION inclusive, ) 4) VIOLATION OF CAL. BUS. & ) PROF. CODE SECTION 17200 ) Defendants. 5) COPYRIGHT INFRINGEMENT REQUEST FOR JURY TRIAL

. COMPLAINT

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Plaintiff DREAMGEAR, LLC, by its attorneys, Karish & Bjorgum, PC allege: JURISDICTION AND VENUE 1. This is an action for patent infringement, arising under the acts of Congress relating to patents, 35 U.S.C. 1 et seq., trade dress infringement arising under Section 43(a) of the Lanham Act, and copyright infringement under 17 U.S.C. 101, et seq. This court has jurisdiction over patent, copyright and trademark claims under 28 U.S.C. 1331, 1338(a) and 1338(b), which provide for federal question jurisdiction of actions relating to patents, copyrights and trademarks. This court has supplemental jurisdiction over the plaintiffs nonfederal claims under 28 U.S.C. 1367 in that those claims are so related to the plaintiffs federal claims that they form part of the same case or controversy. 2. Venue is proper in this district pursuant to 28 U.S.C. 1391(b), (c), and 1400(b). Defendant Sakar International, Inc. sells products in this District. THE PARTIES AND GENERAL ALLEGATIONS 3. 4. 5. Plaintiff DreamGEAR, LLC (DREAMGEAR or Plaintiff) is a Defendant Sakar International, Inc. (SAKAR) is a New York Plaintiff is informed and believes and based thereon alleges that the California limited liability company. corporation with its principal place of business in Edison, New Jersey. Defendants (collectively, with SAKAR, Defendants) sued herein as Does 1-10 are persons or entities accused of infringement in this matter. The true and correct identity of these Defendants is not yet known to Plaintiff, but Plaintiff expects their identity to become known during discovery, and Plaintiff will at that time seek leave of Court to amend the complaint to sue them in their proper names.

. COMPLAINT

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6.

Plaintiff is the owner of U.S. Design Patent No. D691,116 (the 116

Patent), attached as Exhibit A to this complaint. The 116 Patent issued on October 8, 2013 and claims the ornamental design for a glowing speaker. 7. Plaintiff is the owner of the FIRE WAVES trade dress, attached as Exhibit B hereto. The FIRE WAVES trade dress includes a cylindrical speaker enclosure of a certain size and dimension, featuring a continuous surface when compressed and an indented surface when expanded, with an interior bellows-like midsection. The FIRE WAVES trade dress is inherently distinctive. Plaintiff is the exclusive seller of the FIRE WAVES trade dress. 8. Plaintiffs have been selling in the United States (including in the State of California) speakers bearing the FIRE WAVES trade dress since at least as early as January, 2013. 9. 10. Due to the extensive use and promotion of the FIRE WAVES trade Plaintiff is informed and believes and based thereon alleges that the dress it has acquired secondary meaning. Defendants have imported into the United States and sell in the United States speaker products under the name Sizzle that bear a design that is confusingly similar to the FIRE WAVES trade dress. A photo of the Sizzle product is attached hereto as Exhibit C to this Complaint. 11. Plaintiff is the owner of the HANG ON trade dress, attached as Exhibit D hereto. The trade dress features an enclosure for a speaker that is generally cylindrical, hangs from a wrist strap, and has a bridged grill cover, an ornamental slot-shaped cutout, and an external circular band of a contrasting material/color. The HANG ON dress is inherently distinctive. Plaintiff is the exclusive seller of the HANG ON trade dress. 12. Plaintiff has been selling in the United States (including in the State of California) speakers bearing the HANG ON trade dress since at least as early as January, 2013.
. COMPLAINT

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13. 14.

Due to the extensive use and promotion of the HANG ON trade dress Plaintiff is informed and believes and based thereon alleges that the

it has acquired secondary meaning. Defendants have imported into the United States and sell in the United States speaker products under the name Tag & Blast that bears a design that is confusingly similar to the HANG ON trade dress. A photo of the Tag & Blast product is attached as Exhibit E hereto. 15. Plaintiff is the exclusive licensee of the Chinese design patent CN 302382842 (the 842 Patent), a copy of which is attached as Exhibit F hereto. The 842 Patent issued on April 3, 2013. The Fire Waves product incorporates the design elements of the 842 Patent. On information and belief, Defendants Sizzle product would violate the 842 Patent under Chinese law. 16. During the spring of 2013, Plaintiff was in negotiations with Walgreens to sell items that incorporated the FIRE WAVES trade dress, the HANG ON trade dress and the 116 Patent. 17. The negotiations were detailed, but the parties could not come to an agreement. Soon thereafter, Walgreens began selling products from Defendant SAKAR that incorporated the design elements for three of the products that had been involved in the discussions between the parties. 18. Specifically, Defendants Sizzle speaker is a copy of Plaintiffs Fire Waves speaker. Defendants Tag & Blast wireless speaker is a copy of Plaintiffs Hang On speaker. 19. Defendants products are not of the same quality as Plaintiffs. Specifically, the audio output of Defendants speaker components is of a lower quality, so that the value of Plaintiffs trade dress is diminished as a result of Defendants inferior goods being associated with Plaintiffs designs. 20. Defendants copied Plaintiffs operating instructions nearly verbatim for their operating instructions on the infringing Sizzle and Tag and Blast
. COMPLAINT

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products. Copies of portions of the Fire Waves and Hang On operating instructions and warranty cards are attached hereto as Exhibit G. Plaintiff has filed for copyright registrations on the instructions and warranty cards. 21. Copies of portions of the operating instructions and warranty cards for the Sizzle and Tag & Blast products, and the warranty card for the Party Orb product, are attached hereto as Exhibit H. 22. Plaintiff is informed and believes and based thereon allege that the actions of Defendants herein were conducted with fraud, oppression, and malice in an attempt to trade on the goodwill of Plaintiffs products.

FIRST CLAIM FOR RELIEF INFRINGEMENT OF THE 116 PATENT (By dreamGEAR Against SAKAR) 23. 24. 25. Plaintiff realleges and incorporates the allegations in paragraphs 1 Plaintiff is the owner of the 116 Patent. Defendants have infringed and are still infringing the 116 Patent by through 22 as if set forth fully herein.

making, selling, and using an ornamental design for a glowing speaker that infringes the 116 Patent. Defendants, unless enjoined by this court, will irreparably harm Plaintiff by this conduct. A picture of Defendants infringing Party Orb product is attached hereto as Exhibit I. 26. 27. Plaintiff placed a patent pending notice of the IGlowSound product. Plaintiff has been damaged by Defendants acts of infringement of the

116 Patent in an amount to be determined at trial, such damages including all of Defendants profits in selling the infringing goods. SECOND CLAIM FOR RELIEF
. COMPLAINT

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(By dreamGEAR Against Defendants For False Designation Of Origin Trade Dress Infringement, 15 U.S.C. 1125(a)(1)) Plaintiff realleges and incorporates the allegations in paragraphs 1 The FIRE WAVES trade dress and the HANG ON trade dress are The FIRE WAVES trade dress and the HANG ON trade dress are Plaintiff has never authorized or consented to the Defendants use of through 22 as if set forth fully herein. distinctive. 30. 31. nonfunctional. the WAVES FIRE or HANG ON trade dress. Defendants use of similar trade dress without the authority of Plaintiff is likely to cause confusion, deception and mistake in that members of the relevant consuming public are likely to assume that Plaintiffs are the source of Defendants goods. 32. Plaintiff is informed and believes and based thereon alleges that the Defendants acts as alleged herein have been undertaken with full knowledge of Plaintiffs rights and with the willful and deliberate intent to cause confusion, mistake and deception among members of the relevant public and to trade on the goodwill associated with the FIRE WAVES trade dress and the HANG ON trade dress. 33. By reason of Defendants conduct as alleged herein, Plaintiff suffered damage to their business, reputation and goodwill and the loss of profits and sales it would have made but for Defendants conduct. 34. Defendants acts of infringement have caused and will continue to cause irreparable and immediate injury to Plaintiff for which Plaintiff has no adequate remedy at law. Unless Defendants are restrained by this Court from continuing their infringement, these injuries will continue to occur.

. COMPLAINT

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 38. 39. FOURTH CLAIM FOR RELIEF (By Plaintiff dreamGEAR Against Defendants for Unfair Competition, Cal. Bus. & Prof. Code 17200) Plaintiff realleges paragraphs 1 through 22 as though set forth at The above-described acts of Defendants constitute unfair competition length herein. within the meaning of California Business and Professions Code Section 17200. Such acts have caused and will continue to cause irreparable and immediate injury to Plaintiff for which Plaintiff has no adequate remedy at law. Unless Defendants are restrained by this Court from continuing the acts alleged herein, these injuries will continue to occur.
. COMPLAINT

THIRD CLAIM FOR RELIEF (By Plaintiff dreamGEAR Against Defendants for Common Law Unfair Competition) 35. 36. Plaintiff realleges and incorporates the allegations in paragraphs 1 The above-described acts of Defendants constitute common law unfair through 22 as if set forth fully herein. competition in that Defendants are passing off their goods as those of the Plaintiff. Such acts have caused and will continue to cause irreparable and immediate injury to Plaintiff for which Plaintiff has no adequate remedy at law. Unless Defendants are restrained by this Court from continuing the acts alleged herein, these injuries will continue to occur. 37. Plaintiff is informed and believes and based thereon alleges that the foregoing acts of the Defendants are willful and malicious in that they have been undertaken with a conscious disregard of the Plaintiffs rights and with a desire to injure the Plaintiffs business and to improve their own.

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. COMPLAINT

FIFTH CLAIM FOR RELIEF (By Plaintiff dreamGEAR Against Defendants for Copyright Infringement, 17 U.S.C. 17200) 40. 41. products. 42. 43. Plaintiff has filed for copyright registrations on all three sets of All three of Defendants products at issue copy Plaintiffs warranty instructions and warranties. card. The instructions for the Sizzle and Tag & Blast products copy nearly verbatim the instructions for the Fire Waves and Hang On products, respectively. 44. The above-described acts of Defendants constitute copyright infringement. Such acts have caused and will continue to cause irreparable and immediate injury to Plaintiff for which Plaintiff has no adequate remedy at law. Unless Defendants are restrained by this Court from continuing the acts alleged herein, these injuries will continue to occur. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for judgment against Defendants as follows: 1. 2. A determination that Defendants have infringed the 116 Patent; The Court preliminarily and permanently restrain and enjoin Plaintiff realleges paragraphs 1 through 22 as though set forth at Plaintiff is the owner of all copyright rights in the warranty cards and length herein. written instructions for the materials that accompany the Fire Waves and Hang On

Defendants and their officers, directors, agents, employees, licensees, successors and assigns and all others acting in concert and participating with Defendants from further acts of infringement, contributory infringement and inducing infringement of the 116 Patent;

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3.

The Court preliminarily and permanently restrain and enjoin

Defendants and their officers, directors, agents, employees, licensees, successors and assigns and all others acting in concert and participating with Defendants from: a. Directly or indirectly manufacturing, producing, printing, distributing, importing, trafficking in, selling, offering for sale, possessing, advertising, promoting or displaying any products, including gloves, bearing any simulation, reproduction, copy or colorable imitation of the FIRE WAVES or HANG ON trade dress. b. Directly or indirectly printing and/or importing into the United States any items bearing any simulation, reproduction, copy or colorable imitation of the FIRE WAVES or HANG ON trade dress; c. Making any unauthorized use of the FIRE WAVES trade dress or HANG ON trade dress in such a way as to cause confusion, mistake or deception as to the affiliation, connection or association of the Defendants with Plaintiff or as to the origin, sponsorship or approval of Defendants products; d. Using any false designation of origin or false description or misrepresentation, or performing any other act which is likely to mislead the trade or public, or individual members thereof, into believing that the Defendants products are associated or connected with Plaintiff; e. f. Otherwise infringing the Plaintiffs rights in and to the FIRE For an order directing the Defendants to deliver for destruction WAVES or HANG ON trade dress; all products, labels, boxes, bottles, signs, prints, packages, wrappers, and artwork in their possession, or under their control, bearing or intended to bear any simulation, reproduction, copy or colorable imitation of the FIRE WAVES or HANG ON trade dress, including all plates, molds, matrices and other means of making the same;
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4. 5. 6. 7.

For compensatory damages according to proof; The Court treble the damages award to Plaintiffs as a consequence of For all damages allowed under 35 U.S.C. 289 pertaining to Directly or indirectly manufacturing, producing, printing, distributing,

Defendants willful infringement; infringement of design patents including profits; importing, trafficking in, selling, offering for sale, possessing, advertising, promoting or displaying any products bearing any simulation, reproduction, copy or colorable imitation of Plaintiffs copyrighted works; 8. For an order directing the Defendants to deliver for destruction all books or printed material in their possession, or under their control, having any portion therein of Plaintiffs copyrighted works; 9. That Plaintiff be awarded all profits of Defendants, and each of them, plus all losses of Plaintiff, the exact sum to be proven at the time of trial, or, if elected before final judgment, statutory damages, as available under the Copyright Act, 17 U.S.C. 101 et seq.; 10. 11. That Plaintiff be awarded its attorneys fees as available under the That Defendants, and each of them, account to Plaintiff for their Copyright Act, 17 U.S.C. 101 et seq.; profits and any damages sustained by Plaintiff arising from the foregoing acts of infringement; 12. That Plaintiff be awarded such further legal and equitable relief as the Court deems proper.

. COMPLAINT

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