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COMPLAINT
under the trademark laws of the United States, Title 15, United States Code,
Georgias Uniform Deceptive Trade Practices Act, O.C.G.A. 10-1-371 et. seq., and
the common law; and for patent infringement arising under the patent laws of the
2. This Court has subject matter jurisdiction over all causes of action set
1338.
Defendant transacts business within the State of Georgia, has at least one employee
with an office and residence in the State of Georgia, has infringed Beaumonts
trade dress and patent rights within this State, and is continuing to infringe
THE PARTIES
eliminators, and related products in this judicial district and throughout the United
States.
nonfunctional design features of certain air freshener and odor eliminator products.
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in and to United States Patent No. D491,257 for Container for Solid Air
10. Upon information and belief, Defendant has and continues to infringe
Beaumonts patent and trade dress rights in the State of Georgia, within this
judicial district, and elsewhere throughout the United States. Upon information
THE CONTROVERSY
11. For at least 13 years, Beaumont has marketed and sold solid air
freshener and odor eliminator products that comprise disc-shaped plastic containers
that are filled with an air freshener/odor eliminator composition in a cake format,
Beaumonts Citrus Magic air fresheners exhibit unique design features that
12. Beaumont adopted a distinctive trade dress to market and sell air
Citrus Magic air fresheners, which include at least the following trade dress
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Dress):
The elements of Beaumonts Air Freshener Packaging Trade Dress are depicted in
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The elements of Beaumonts Air Freshener Display Trade Dress are depicted in the
14. Beaumonts Air Freshener Packaging Trade Dress and Air Freshener
Display Trade Dress have been advertised and distributed continuously throughout
15. Beaumont first used its Air Freshener Packaging Trade Dress and Air
Freshener Display Trade Dress on air freshener/odor eliminator products long before
the Defendant first used the same trade dress on its products. Beaumont is the
original owner of Beaumonts Air Freshener Packaging Trade Dress and Air
Trade Dress and Air Freshener Display Trade Dress are non-functional.
Freshener Packaging Trade Dress and Air Freshener Display Trade Dress are
highly distinctive.
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18. Beaumont, through its significant effort, skill, and expertise, has
acquired and now enjoys substantial goodwill and a valuable reputation under its
Beaumont has contributed to this valuable goodwill and reputation throughout the
United States.
long, exclusive, continuous, and wide-spread use and advertising of its Air Freshener
Packaging Trade Dress and Air Freshener Display Trade Dress, Beaumonts Air
Freshener Packaging Trade Dress and Air Freshener Display Trade Dress have
become associated with Beaumont. Beaumonts customers and the general public
associate Beaumonts Air Freshener Packaging Trade Dress and Air Freshener
Display Trade Dress as denoting that the articles comprising such trade dress
secondary meaning as trade dress in relation to solid air fresheners, and has become
Trade Dress and Air Freshener Display Trade Dress, Defendant has adopted and is
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using Beaumonts Air Freshener Packaging Trade Dress and Air Freshener Display
Trade Dress on products of its own in Georgia and in interstate commerce for the
airBOSS Everyday Odor Eliminator air freshener are attached hereto as Exhibit
freshener and air freshener shelf organizer/display, as displayed and/or offered for
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packaging trade dress, Defendant has exactly copied the following elements of
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26. Defendant has hired a former Beaumont employee, Mr. Garnell Lewis. Mr.
Lewis was the Vice President of Sales-Key Accounts for Beaumont from August
2011 until October 2013. During that time, Mr. Lewiss office was at Beaumonts
knowledge of, and was deeply involved with, the Citrus Magic products. He
presented features and benefits of the Citrus Magic products to key accounts, was a
member of the Beaumont management team, and worked closely with both the
Research & Development and Operations departments. In addition, Mr. Lewis knew
the formula, pricing, costs, and prior litigation related to the Citrus Magic packaging
trade dress. He was intimately involved in all aspects of the Citrus Magic products
trade secrets. As such, he was much more than a mere rank-and-file employee.
27. In October 2013, Mr. Lewis left Beaumont to joint Defendant as the
Director of Sales, based out of Atlanta, Georgia. Upon information and belief, one of
Mr. Lewiss responsibilities is the airBOSS brand that currently offers the infringing
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and willful.
29. On June 8, 2004, United States Patent No. D491,257 (the 257 patent)
was duly and legally issued for Container for Solid Air Freshener. Beaumont holds
all rights and interest in the 257 patent. A true and correct copy of the 257 patent is
30. Defendant has in the past and continues to make, have made, offer for
sale, sell, use, and/or import into the United States one or more products in containers
that infringe Beaumonts 257 patent in violation of 35 U.S.C. 271, including, but
marketed and sold under the designation airBOSS Everyday Odor Eliminator.
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COUNT I:
FEDERAL TRADE DRESS INFRINGEMENT (15 U.S.C. 1125(a))
non-functional Air Freshener Packaging Trade Dress and Air Freshener Display
Trade Dress in the State of Georgia and across the United States for its air
deception, and mistake, in violation of Section 43(a) of the Lanham Act, 15 U.S.C.
1125(a).
use of Beaumonts Air Freshener Packaging Trade Dress and Air Freshener
Display Trade Dress, Defendant will receive the benefit of Beaumonts goodwill
achieved over time and at great labor and expense by Beaumont. Defendants use
of Beaumonts Air Freshener Packaging Trade Dress and Air Freshener Display
Trade Dress will unjustly enrich Defendant and will place Beaumonts valuable
reputation and goodwill in the hands of Defendant, over whom Beaumont has no
control.
and Air Freshener Display Trade Dress falsely indicates to the consumer public
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37. Upon information and belief, Defendant will, if not enjoined by this
Court, continue its acts of trade dress infringement set forth above, which acts have
caused, and will continue to cause, Beaumont immediate and irreparable harm.
38. As a result of Defendants conduct set forth above, Beaumont has been,
Beaumont; (3) treble damages; (4) such sum as the Court deems just; (5) Beaumonts
attorneys fees; (6) Beaumonts costs of this action; and (7) interest.
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COUNT II:
FEDERAL UNFAIR COMPETITION (15 U.S.C. 1125(a))
40. This is an action for trade dress infringement and unfair competition
non-functional Air Freshener Packaging Trade Dress and Air Freshener Display
Trade Dress in the State of Georgia and across the United States for its air
benefit of Beaumonts goodwill achieved over time and at great labor and expense
Dress and Air Freshener Display Trade Dress will unjustly enrich Defendant and
will place Beaumonts valuable reputation and goodwill in the hands of Defendant,
public that Defendant and/or Defendants goods are related, connected, sponsored,
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46. Upon information and belief, Defendants unfair competition was, and
47. Upon information and belief, Defendant will, if not enjoined by this
Court, continue its acts of unfair competition set forth above, which acts have caused,
and will continue to cause, Beaumont immediate and irreparable harm. Pursuant to
15 U.S.C. 1116 and Fed. R. Civ. P. 65(a), Beaumont is entitled to an Order of this
at law.
48. As a result of Defendants conduct set forth above, Beaumont has been,
Beaumont; (3) treble damages; (4) such sum as the Court deems just; (5) Beaumonts
attorneys fees; (6) Beaumonts costs of this action; and (7) interest.
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COUNT III:
FALSE DESIGNATION OF ORIGIN AND
FALSE DESCRIPTION OR REPRESENTATION UNDER
GEORGIAS UNIFORM DECEPTIVE TRADE PRACTICES ACT
50. This count is for trade dress infringement and unfair competition
under Georgias Uniform Deceptive Trade Practices Act, O.C.G.A. 10-1-371 et.
seq.
Packaging Trade Dress and Air Freshener Display Trade Dress in the State of
Georgia for its air freshener/odor eliminator products constitutes a deceptive trade
use of Beaumonts Air Freshener Packaging Trade Dress and Air Freshener
Display Trade Dress, Defendant will receive the benefit of Beaumonts goodwill
achieved over time and at great labor and expense by Beaumont. Defendants use
of Beaumonts Air Freshener Packaging Trade Dress and Air Freshener Display
Trade Dress will unjustly enrich Defendant and will place Beaumonts valuable
reputation and goodwill in the hands of Defendant, over whom Beaumont has no
control.
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56. Upon information and belief, Defendant will, if not enjoined by this
Court, continue its acts of trade dress infringement set forth above, which acts have
caused, and will continue to cause, Beaumont immediate and irreparable harm.
57. As a result of Defendants conduct set forth above, Beaumont has been,
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Beaumont is entitled to a judgment for: (1) such sum as the Court deems just;
(2) Beaumonts attorneys fees; (3) Beaumonts costs of this action; and (4) interest.
COUNT IV:
COMMON LAW MISAPPROPRIATION AND UNFAIR COMPETITION
Beaumonts trade dress and goodwill and are in violation of Georgias Common
Freshener Packaging Trade Dress and Air Freshener Display Trade Dress is likely
61. Beaumont reserves its right to proffer evidence and seek an award of
punitive damages.
to suffer irreparable injury to its goodwill and reputation. Beaumont has already
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COUNT V:
INFRINGEMENT OF U.S. PATENT NO. D491,257
64. On June 8, 2004, United States Patent No. D491,257 (the 257 patent)
was duly and legally issued for Container for Solid Air Freshener. Beaumont holds
all rights and interest in the 257 patent. A true and correct copy of the 257 patent is
65. Beaumont has marked products covered by the 257 patent with the text
66. Upon information and belief, Defendant has infringed directly and/or
indirectly and continues to infringe directly and/or indirectly the 257 patent by
manufacturing, using, selling, importing, and/or offering for sale solid air
including, but not necessarily limited to, Defendants air freshener/odor eliminator
products marketed and sold under the designation airBOSS Everyday Odor
Eliminator.
67. An ordinary observer with knowledge of the prior art would find that
Defendants Infringing Products are substantial similar to the 257 patent giving such
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68. The acts of infringement of the 257 patent by Defendant has caused
damage to Beaumont, and Beaumont is entitled to recover from the Defendant the
to proof at trial.
harm, for which there is no adequate remedy at law, unless enjoined by this Court.
WHEREFORE, Beaumont prays that the Court enter judgment in its favor
Dress and Air Freshener Display Trade Dress be adjudged to be protectable and
infringed by Defendant;
Beaumonts Air Freshener Packaging Trade Dress and Air Freshener Display
on account of, inter alia, Defendants trade dress infringement, unfair competition,
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and injury to Beaumonts business reputation pursuant to 15 U.S.C. 1051 et. seq.,
with interest;
Packaging Trade Dress and Air Freshener Display Trade Dress, with interest;
and those persons in active concert or participation with it, be preliminarily and
Freshener Packaging Trade Dress and Air Freshener Display Trade Dress;
Beaumont, no later than thirty (30) days after the issuance of an injunction, a report
in writing under oath setting forth in detail the manner and form in which Defendant
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destruction all of its goods bearing Beaumonts Air Freshener Packaging Trade
Defendant for:
sales and/or advertising of any under air freshener, odor remover, and other similar
products bearing Beaumonts Air Freshener Packaging Trade Dress and Air
Freshener Display Trade Dress, or any other trade dress confusingly similar to
Beaumont Products Air Freshener Packaging Trade Dress and Air Freshener
violation of 35 U.S.C. 292, and Defendants deceptive trade practices and false
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interest; and
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/s/Cynthia J. Lee
Cynthia J. Lee
Georgia State Bar No. 442999
Wesley A. Roberts
Georgia State Bar No. 867277
THOMAS HORSTEMEYER, L.L.P.
400 Interstate North Parkway SE, Suite 1500
Atlanta, Georgia 30339
Telephone: (770) 933-9500
Facsimile: (770) 951-0933
4834-7502-7522, v. 1
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JS 44 (Rev. 08/16) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings 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 of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Cynthia J. Lee, Wesley A. Roberts, Thomas Horstemeyer LLP, 400
Interstate North Parkway SE, Atlanta, GA 30339, 770-933-9500
II. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
1 U.S. Government 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4
of Business In This State
2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
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 of the United States in September 1974, is
required for the use of the 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) 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.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the 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.)
(c) 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)".
II. 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 of the 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 1 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.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.
VI. 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
VII. 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.
VIII. 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.
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Exhibit A
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Exhibit B
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Exhibit C
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Exhibit D
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Exhibit E
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