Buyer S Direct v. Belk - Complaint

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION
BUYER’S DIRECT INC., )

)
Plaintiff, )
)
v. ) Case No. 5:18-cv-582
)
BELK, INC., BELK INTERNATIONAL, ) Plaintiff Demands Trial by Jury
INC., AND BELK ECOMMERCE, LLC )
)
Defendant. )
)
COMPLAINT
Plaintiff Buyer’s Direct Inc. (“BDI”) brings this action against Belk, Inc., Belk
International, Inc., and Belk eCommerce, LLC (collectively “Belk” or “Defendants”) for
infringing BDI’s design patent and misappropriating snoozies!® trade dress, causing consumer
confusion, and engaging in unfair competition.
BDI filed a lawsuit against Belk previously for similar wrongful acts carried out in
accordance with an overall business policy, practice, and plan that featured copying valuable
designs of others for use under its private label brands, and in doing so, deceptively advertising
its infringing products and causing consumer confusion as to the source of its infringing
products. See Buyer’s Direct Inc. v. Belk, Inc. and Belk International, Inc., No. 5:10-cv-00065
(W.D.N.C.). After Belk lost its summary judgment motions on patent and trade dress
infringement, the parties settled their dispute. Now, less than a year after settling their last
dispute with BDI, Belk is again illegally selling products infringing BDI’s patent, copying its
trade dress, confusing consumers, and engaging in unfair competition. Accordingly, BDI seeks
damages, an accounting, the imposition of a constructive trust upon Defendants’ illegal profits,
Case 5:18-cv-00582-BO Document 1 Filed 12/11/18 Page 1 of 24

and injunctive relief. This lawsuit is not precluded by the settlement of the prior lawsuit between
BDI and Belk, as the transactions at issue in this Complaint occurred after the settlement of the
prior action.
THE PARTIES
1. BDI is a North Carolina corporation with its principal place of business in Wilson,
North Carolina.
2. Upon information and belief, Belk, Inc. is a Delaware corporation with its
principal place of business in Charlotte, North Carolina.
3. Upon information and belief, Belk International, Inc. is a North Carolina
corporation with its principal place of business in Charlotte, North Carolina.
4. Upon information and belief, Belk eCommerce, LLC is a North Carolina limited
liability company with its principal place of business in Charlotte, North Carolina.
JURISDICTION AND VENUE
5. This is an action for design patent infringement under 35 U.S.C. § 271, trade dress
infringement and unfair competition under § 43(a) of the Trademark Act of 1946, as amended
(the “Lanham Act”), and unfair competition under North Carolina statutory and common law.
6. This Court has jurisdiction over the subject matter of this action pursuant to 28
U.S.C. §§ 1331 and 1338, and 15 U.S.C. § 1121. Because the state law claims are so related to
BDI’s claims under federal law that they form part of the same case or controversy and derive
from a common nucleus of operational facts, this Court has supplemental jurisdiction over BDI’s
claims based on state law pursuant to 28 U.S.C. § 1367(a).
7. This Court has personal jurisdiction over Belk because it (a) has sold infringing
products and committed unfair competition in the state of North Carolina, within the Eastern

District of North Carolina; (b) has purposefully directed its activities toward the state of North
Carolina; and (c) has established systematic and continuous contacts with the state of North
Carolina, including maintaining retail stores, corporate offices, and distribution facilities in the
Eastern District of North Carolina.
8. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391 and 1400 with
respect to Belk International, Inc. because it is a North Carolina corporation and thus resides in
North Carolina. Moreover, Belk International, Inc. has committed acts of patent infringement in
this district, has a regular and established place of business in this district, and this Court has
personal jurisdiction over Belk International, Inc. in this district.
9. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391 and 1400 with
respect to Belk eCommerce, LLC because it is a North Carolina limited liability company and
thus resides in North Carolina. Moreover, Belk eCommerce, LLC has committed acts of patent
infringement in this district, has a regular and established place of business in this district, and
this Court has personal jurisdiction over Belk eCommerce, LLC in this district.
10. Venue is also proper in this District pursuant to 28 U.S.C. §§ 1391 and 1400 with
respect to Belk, Inc. because it has committed acts of patent infringement in this district, it has a
regular and established place of business in this district, and this Court has personal jurisdiction
over Belk, Inc. in this district.
BACKGROUND
A. U.S. Design Patent No. D598,183
11. On August 18, 2009, U.S. Design Patent No. D598,183 (“the ’183 Patent”) was
duly and legally issued by the United States Patent and Trademark Office. A true and correct
copy of the ’183 Patent is attached hereto as Exhibit 1 and is incorporated by reference.

12. On December 22, 2009, Marshall P. Bank, the sole inventor of the ’183 Patent,
assigned all rights in the ’183 Patent to BDI. Since that date, BDI has been and still is the owner
of the ’183 Patent. Representative Figures 1 and 3 from the ’183 patent are shown below.
13. On September 24, 2014, the U.S. Patent & Trademark Office issued an ex parte
Reexamination Certificate confirming the patentability of the ’183 design after reviewing prior
art raised in co-pending litigations. A true and correct copy of the ex parte Reexamination
Certificate is included in Exhibit 2 attached hereto and is incorporated by reference.
14. BDI has retained the exclusive right to manufacture all commercial embodiments
of the ’183 patent in the United States retail market.
B. The Trade-Dress-in-Suit
15. BDI is a supplier of retail products that has designed, marketed, and sold its
unique snoozies!® foot coverings since 2008. BDI has achieved market success for snoozies!®
because of the distinctive and unique design of the snoozies!® product. Exemplary snoozies!®
foot coverings are shown below.

16. Since the fall of 2008, snoozies!® have been offered for sale in many retail
locations throughout North Carolina and other states and may be found in a variety of retail
outlets and specialty retailers throughout the United States and the world.
17. BDI’s snoozies!® foot coverings have a distinctive, immediately recognizable and
non-functional overall look and feel that constitutes protectable trade dress that distinguishes
BDI’s foot coverings from those of competitors. The foot coverings, which are presented outside
of packaging, are made of a soft, malleable material on both the top and bottom portions of the
foot covering, the soft, malleable top portion is formed into a wide, rounded covering over the
top of the foot that extends over the toes, and a protrusion of fleece material extends out from
and floats above the foot entry of the foot covering. An annotated image of BDI’s snoozies!®
foot coverings highlighting the above-described features is shown below:

18. BDI has invested significant time, money and effort in developing snoozies!® foot
coverings, which has resulted in significant commercial success and public recognition of its
distinctive design, appearance, and trade dress. For example, snoozies!® foot coverings have
been featured on NBC’s Today Show. For nearly a decade, snoozies!® foot coverings have been
sold in Hallmark stores throughout the United States. Over the past few years, snoozies!® foot
coverings have been featured in the prestigious Smithsonian magazine gift catalog. The
extraordinary success is reflected in the fact that BDI sold approximately two million pairs of
snoozies!® foot coverings during each of the past five years.
19. BDI has promoted and advertised snoozies!® products in various trade
publications and trade shows that publicize and promote the sale of such retail products. BDI
has also has created hundreds of different advertisements and promotional materials prominently

featuring snoozies!® foot coverings and various aspects of the trade dress since the foot
coverings were introduced ten years ago. A few examples of such advertising images are shown
below:

20. As a result of BDI’s advertising and promotion of snoozies!® foot coverings, the
trade and purchasing public have come to associate the distinctive trade dress of snoozies!® foot
coverings with a single producer or source—BDI. The snoozies!® foot coverings product and
associated distinctive trade dress have been so successful that the product has been copied by
several competitors (whom BDI has pursued for acts of infringement). The advertising and
promotion of genuine snoozies!® foot coverings products, and the copying of its trade dress by
others, is evidence that the snoozies!® foot coverings trade dress has acquired secondary meaning
in the marketplace as to the origin of the product.
21. The distinctive trade dress features of snoozies!® foot coverings as described
above are non-functional and ornamental; are unrelated to the use, cost, or quality of the foot
coverings, and function together to comprise a design that identifies snoozies!® foot coverings as
originating from a single source—BDI. The particular design, appearance, and arrangement of
these elements as a whole are also separate from the utilitarian requirements to create a foot
covering. Alternative designs and features, e.g. the use of less fleece, could have resulted in
reduced cost and a simpler manufacturing process. Differing slipper shapes could also have been
used and any of myriad alternatives similarly cover the feet and keep them warm. But BDI
developed and marketed a distinctive trade dress for which it expended significant resources to
be associated directly and solely with BDI despite the increased cost and manufacturing
complexity as compared to cheaper alternatives.
C. Belk, Inc., Belk International, Inc., and Belk eCommerce LLC’s Infringement
22. In January 2008, BDI first approached Belk and attempted to sell it a line of socks
that BDI had developed and were known as “slumber socks.” A few months later, BDI re-
contacted Belk to see if it had any interest in a new product BDI had developed and was in the

process of patenting, namely the product that went on to become snoozies!® foot coverings. BDI
conceived and developed the snoozies!® foot coverings as a retail replacement for the slumber
sock and anticipated substantial commercial success from this new consumer product.
23. By April of 2008, BDI had developed a sample or prototype of the snoozies!®
foot covering and was attempting to interest various retail businesses, including Belk, in
purchasing inventory for the 2008-2009 season.
24. Belk requested samples of the product from BDI, and after reviewing the samples,
agreed to purchase the product for the 2008-2009 season. Upon information and belief, the
product was very successful, and Belk sold more than 50,000 pairs.
25. Notwithstanding the success of the snoozies!® foot covering line at Belk during
the 2008-2009 season, Belk did not repurchase any snoozies!® foot coverings from BDI for the
following year.
26. Around November 2009, BDI conferred with a customer and was advised that
Belk was selling a slipper product that was identical to the snoozies!® foot covering. Based on
the confusing similarity, this customer thought BDI was still selling snoozies!® foot coverings to
Belk.
27. Upon investigation, BDI determined that Belk was selling and marketing a slipper
under its private label that was identical in virtually all material respects to snoozies!® foot
coverings, called “Footsies.”
28. BDI also determined that, prior to November 2009 and prior to the first sale of a
“Footsies” foot covering, Belk representatives made numerous visits to the BDI website,
www.snoozies.com, including the section that contained pattern designs. Belk directly copied

BDI’s colors and designs in creating its “Footsies” line. This is demonstrated at least by a paint
splatter design that was unique to BDI being replicated in the Belk Footsies product.
29. Belk’s wrongful use of snoozies!® foot coverings was just one example of the
many instances in which Belk copied the valuable design of another for use under one of its
private label brands, and BDI sought justice via lawsuit. See Buyer’s Direct Inc. v. Belk, Inc.
and Belk International, Inc., No. 5:10-cv-00065 (W.D.N.C.).
30. Belk has been subject to similar lawsuits in the past, such as Belk, Inc. and Belk
International, Inc. v. Meyer Corporation, U.S. and Meyer Intellectual Properties Limited
(“Meyer”), 3:07-cv-00168 (W.D.N.C.) (“Belk v. Meyer”), in which Belk was accused of trade
dress infringement and unfair competition under North Carolina law. On June 4, 2010, a jury
unanimously concluded that Belk infringed Meyer’s trade dress in certain cookware and that
Belk’s infringement constituted an unfair and deceptive trade practice under North Carolina’s
unfair trade practices statute. Further demonstrating Belk’s wrongful business plan of copying
the valuable designs of others with its private label brands is Mr. BAR-B-Q- v. Belk, Inc., 09-cv-
00259 (D. Del. 2009). Belk settled this matter before it even filed an answer to the complaint.
Still another example of Belk’s practice surfaced in the recently-filed Mud Pie, LLC v. Belk, Inc.,
Belk International, Inc. and Belk eCommerce LLC, 18-cv-607 (W.D.N.C.), where Mud Pie
alleges that—after years as a customer—Belk began making and selling a line of dishes which
copies Mud Pie, LLC’s trademarked designs.
31. These are but four examples of Belk’s business plan to copy the valuable designs
of others for use under one of its private label brands. Upon information and belief, there are
other instances in which Belk has copied the valuable design of another for use under one of its
private label brands.
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32. Despite BDI’s vigorous defense of its intellectual property against Belk in the past
(Buyer’s Direct Inc. v. Belk, Inc. and Belk International, Inc., No. 5:10-cv-00065 (W.D.N.C.)),
which resulted in a settlement, Belk once again is infringing BDI’s patent and trade dress
through a newly-created line of foot coverings.
33. Specifically, Belk is now infringing BDI’s ’183 patent and trade dress by making
and selling a foot covering marketed under Belk’s private label NEW DIRECTIONS
trademarked brand. As with Footsies, the NEW DIRECTIONS foot coverings are identical in
virtually all relevant respects to snoozies!® foot coverings and include the elements of the
claimed design:
34. Despite changing the name of its product line, Belk’s “new direction” is
unequivocally the same as its old direction, namely, copying valuable designs of others for use
under its private label brands.
35. These actions are exemplary of Belk’s improper business policy, practice, and
plan whereby Belk steals the valuable designs of others for use in its private label brands.
36. This policy, practice, and plan consists of purchasing legitimately-developed
products from other and placing the products for sale in Belk department stores. If the
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legitimately-developed product is successfully sold by Belk, Belk ceases to purchase the product
from the original vendor (and oftentimes patent holder) and instead manufactures or has
manufactured, distributes, markets, and sells a deceptively similar one under its own private label
brands.
37. Belk has strong motives and is afforded numerous benefits for instituting and
employing its wrongful business plan of selling the valuable designs of others under its private
label brands, including the following:
a. First, by copying the valuable designs of others, Belk is saved the time and
resources required to legitimately design a product. Indeed, Belk does not employ
product designers, design consultants or design engineers, saving Belk resources
and making Belk incapable of designing and manufacturing its own unique
products;
b. Second, by first selling the legitimately developed product, Belk is able to learn
whether the product will successfully sell prior to Belk selling the product as its
own under a private label brand. Selling the legitimately developed product
further provides the product an opportunity to become established in the market
and to gain recognition among Belk’s customers prior to Belk claiming the
product as its own; and
c. Third, by wrongfully selling the valuable designs of others under its private label
brands, Belk unfairly reaps the consumer goodwill and consumer recognition that
was legitimately achieved by the actual designer of the product.
38. Belk also has strong motives for and receives numerous benefits from selling the
wrongfully-copied products under a private label brand, including the following:
a. By selling the wrongfully-copied products under a private label brand, Belk

ensures that the product is sold exclusively at Belk department stores. The
exclusivity enjoyed by Belk in its private label products not only benefits Belk, it
unfairly deprives legitimate designers of a channel through which to sell
legitimate products;
b. Belk further benefits from selling the wrongfully copied products under private
label brands because private label lines are more profitable. The use of private
label lines is more profitable to Belk because Belk can get products into its stores
at a lower cost and set its own pricing. By setting its own pricing, Belk can
undercut the price charged by the designer of a legitimately developed product.
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COUNT 1
(INFRINGEMENT OF U.S. PATENT NO. D598,183)
39. Paragraphs 1 through 38 of this Complaint are incorporated as if set forth in their
entirety here.
40. Belk previously infringed the ’183 Patent by using, selling, and/or offering to sell
a Belk private label product called “Footsies.” Because of its previous settlement with BDI,
Belk stopped selling Footsies. But in blatant violation of BDI’s patent rights, Belk again is and
has been infringing the ’183 patent by making, using, selling, and/or offering to sell a foot
covering marketed under Belk’s NEW DIRECTIONS trademark.
41. Three samples of the infringing products were purchased at Belk’s Wilson, North
Carolina store on November 23, 2018, shown below:
42. The following exemplary comparison of Belk’s NEW DIRECTIONS foot
coverings with figures from the ’183 patent demonstrate infringement:
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43. Belk has had actual notice of the ’183 patent since at least February, 2010, when
the first Complaint was filed against Belk.
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44. As a direct result of Belk’s infringement of the ’183 Patent, BDI has suffered
irreparable injury and monetary damages. If Belk’s infringement is not permanently enjoined,
BDI will continue to suffer irreparable injury and monetary damages.
45. Upon information and belief, Belk’s infringement of the ’183 Patent is
intentional, willful, and wanton under 35 U.S.C. § 284, and makes this an exceptional case under
35 U.S.C. § 285.
COUNT II
(INDUCEMENT OF INFRINGEMENT OF U.S. PATENT NO. D598,183)
entirety here.
47. Belk was aware of the ’183 Patent at least as February, 2010, when the first
Complaint was filed against Belk. Because of the previous lawsuit between the parties, Belk is
also aware that its foot coverings infringe the ’183 Patent.
48. On information and belief, despite knowledge of the ’183 patent and its
infringement, upon information and belief Belk has intentionally retained manufacturers to make
infringing foot coverings, with the knowledge that such an act would constitute direct
infringement of the ’183 Patent.
49. Further, upon information and belief, Belk’s advertising intentionally describes
Belk’s foot coverings as slippers, thus directly or indirectly inducing consumers to directly
infringe the ’183 Patent, knowing that such use of its infringing foot coverings would
independently constitute acts of direct infringement of the ’183 Patent.
50. As a direct result of Belk’s indirect infringement of the ’183 Patent, BDI has
suffered irreparable injury and monetary damages. If Belk’s infringement is not permanently
enjoined, BDI will continue to suffer irreparable injury and monetary damages.
15

51. Upon information and belief, Belk’s indirect infringement of the ’183 Patent is
intentional, willful, and wanton under 35 U.S.C. § 284, and makes this an exceptional case under
35 U.S.C. § 285.
COUNT III
(TRADE DRESS INFRINGEMENT)
entirety here.
53. BDI invested significant time, money and effort in developing snoozies!® foot
coverings, resulting in significant commercial success and public recognition of its distinctive
design, appearance and trade dress.
54. As a result of BDI’s advertising and promotion of snoozies!® foot coverings by
itself and others, the trade and purchasing public have come to associate the distinctive trade
dress of snoozies!® with a single producer or source. Accordingly, the snoozies!® trade dress has
acquired secondary meaning in the marketplace as to the origin of the product.
55. The distinctive trade dress of snoozies!® is non-functional and ornamental.
56. Belk has sold and offered for sale in stores and on their website, and continues to
sell or offer for sale NEW DIRECTIONS foot coverings which copy and are confusingly similar
in appearance to the trade dress of snoozies!® foot coverings, and therefore are likely to deceive
and confuse the purchasing public as to the source or origin of NEW DIRECTIONS slippers in
violation of 15 U.S.C. § 1125(a).
57. The following exemplary comparison of snoozies!® foot coverings with Belk’s
NEW DIRECTIONS foot coverings demonstrate infringement:
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snoozies!® foot coverings Belk’s NEW DIRECTIONS foot coverings
58. In addition, both BDI’s snoozies!® foot coverings and Belk’s foot coverings are
sold in overlapping and directly competing trade channels, further exacerbating the likelihood of
confusion between BDI’s foot coverings and Belk’s foot coverings.
59. Belk has engaged in such wrongful conduct with the willful purpose of
misleading, deceiving or confusing customers and the public as to the origin and authority of the
NEW DIRECTIONS foot coverings, thereby trading on BDI’s goodwill, reputation and creative
designs.
60. Belk’s conduct constitutes willful infringement of BDI’s protectable trade dress,
making this an exceptional case within the meaning of 15 U.S.C. § 1117.
61. Belk’s infringing activity has caused BDI irreparable injury and monetary
damages.
62. If Belk’s infringements are not permanently enjoined, BDI will continue to suffer
irreparable injury and monetary damages.
63. BDI has no adequate remedy at law for Belk’s wrongful conduct because (a)
BDI’s unique snoozies!® design patent and trade dress have no readily determined market value;
17

(b) Belk’s sale and offers for sale of the imitation slipper design constitutes such harm that BDI
cannot be made whole by any monetary award alone; and (c) Belk’s wrongful conduct is
continuing, notwithstanding its knowledge of the established trade dress.
COUNT IV
(UNFAIR AND DECEPTIVE TRADE PRACTICES UNDER NORTH CAROLINA LAW
– N.C. GEN STAT 75-1.1)
entirety here.
65. BDI is based in North Carolina and is therefore entitled to the protections
afforded under the laws of the State of North Carolina.
66. BDI invested significant money and effort in advertising and promoting
snoozies!® foot coverings and as a result, snoozies!® are associated with BDI by the trade and
purchasing public.
67. Belk’s acts and conduct as alleged above constitute unfair methods of competition
and unfair or deceptive acts or practices in or affecting North Carolina commerce, as defined by
N.C. Gen. Stat. § 75-1.1.
68. As a direct and proximate result of Belk’s conduct, BDI has suffered and will
continue to suffer substantial pecuniary damages, including but not limited to losses and
damages in an amount to be determined at trial. Belk’s conduct justifies an award of treble
damages pursuant to N.C. Gen. Stat. § 75-16.
69. Because much of the damage suffered by BDI as a result of Belk’s conduct is and
will be irreparable, for which BDI has no adequate remedy at law, BDI is further entitled to
preliminary and permanent injunctive relief.
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70. Belk has willfully engaged in the acts and practices alleged in this Complaint. For
these reasons, BDI is further entitled to recover attorneys’ fees from Belk under N.C. Gen. Stat.
§ 75-16.1(1).
COUNT V
(NORTH CAROLINA COMMON LAW
UNFAIR COMPETITION)
entirety here.
72. Belk’s acts and conduct set forth above constitutes unfair competition in North
Carolina at common law.
73. BDI, as a result of such conduct, has suffered and will continue to suffer losses
and damages in an amount to be determined at trial.
74. As much of the damage covered by Belk’s conduct is and will be irreparable, for
which BDI has no adequate remedy at law, BDI is further entitled to preliminary and permanent
injunctive relief.
COUNT VI
(FOR IMPOSITION OF A CONSTRUCTIVE TRUST
UPON THE ILLEGAL PROFITS OF DEFENDANT)
entirety here.
76. Belk’s conduct constitutes deceptive and wrongful conduct in the nature of
passing off the infringing materials as genuine BDI snoozies!® foot coverings.
77. By virtue of its wrongful conduct, Belk has illegally received money and profits
that rightfully belong to BDI.
78. Upon information and belief, Belk holds the illegally-received money and profits
in the form of bank accounts, real property, or personal property that can be located and traced.
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79. Belk holds the money and profits it has illegally received as constructive trustee
for the benefit of BDI.
COUNT VII
(ACCOUNTING AGAINST DEFENDANT)
entirety here.
81. BDI is entitled, pursuant to 35 U.S.C. § 284, to recover any and all profits of Belk
that are attributable to its acts of infringement.
82. BDI is entitled, pursuant to 35 U.S.C. § 284, to actual damages sustained by
virtue of Belk’s acts of infringement.
83. The specific amount of money due from Belk to BDI is unknown to BDI and
cannot be ascertained without a detailed accounting by Belk of the precise number of units of
infringing material offered for distribution and distributed by Belk.
PRAYER FOR RELIEF
WHEREFORE, BDI prays that this Court enter a judgment that:
A. For a judgment that, by the acts complained of above, Belk has
directly and indirectly infringed the ’183 Patent in violation of 35 U.S.C.
§271(a).
B. For a judgment that, by the acts complained of above, Belk has
committed trade dress infringement in violation of 15 U.S.C. § 1125(a).
C. For a judgment that, by the acts complained of above, Belk has
engaged in acts of unfair and deceptive business practices in violation of N.C.
GEN STAT 75-1.1 and North Carolina common law.
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D. For a preliminary and permanent injunction enjoining Belk and its
officers, agents, servants, employees, successors, assigns, subsidiaries,
parents, related entities, and attorneys, and all other persons, firms,
associations, and entities who are in active concert or participation with them,
from:
(i) reproducing, distributing, importing, selling, or
offering for sale in the United States any foot-covering products
that are copies of, or are substantially similar to, BDI’s snoozies!®
foot coverings, in whole or in part, including but not limited to
Belk’s foot coverings;
(ii) using in the United States any designs which are
similar, in whole or in part, to any trade dress of BDI’s snoozies!®
foot coverings;
(iii) committing any acts causing, or calculated to cause,
purchasers or the trade to mistakenly believe that Belk’s foot
coverings are BDI’s snoozies!® foot coverings, or vice versa, in
whole or in part;
(iv) infringing any patent of BDI, including but not
limited to the ’183 Patent; and
(v) otherwise competing unfairly with BDI.
E. For an order pursuant to 15 U.S.C. § 1116(a) directing Belk to file
with this Court and to serve upon BDI’s counsel, within thirty (30) days after
the entry and service on Belk of an injunction, a report in writing and under
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oath setting forth in detail the manner and form in which Belk has complied
with the injunction.
F. For an order declaring that Belk hold in trust, as constructive
trustee for the benefit of BDI, its illegal profits obtained from its distribution
of infringing copies of BDI’s snoozies!® foot coverings, and pursuant to 15
U.S.C. § 1117(a), and order compelling Belk to account to BDI for any and all
profits (trebled) derived from its unlawful and infringing conduct.
G. For an order awarding BDI damages as follows:
(i) all damages adequate to compensate BDI for Belk’s
infringement of the ’183 Patent, and in no event less than a
reasonable royalty for Belk’s acts of infringement;
(ii) pursuant to 35 U.S.C. §§ 284 and 289, all damages,
including treble damages, based on any infringement of the ’183
Patent found to be willful;
(iii) pursuant to 15 U.S.C. § 1117(a) BDI’s actual
damages, as well as all of Belk’s profits or gains of any kind from
their acts of trade dress infringement, including a trebling of those
damages; and
(iv) BDI’s damages and Belk’s profits pursuant to North
Carolina common law.
H. For an order that Belk shall destroy any inventory of infringing
foot coverings in their physical possession or over which they have title or
other ownership interest, even though not in their physical possession, and
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that Belk shall provide BDI a certification identifying the number of units and
location(s) of inventories of infringing foot coverings and the date of their
destruction.
I. For an order pursuant to 15 U.S.C. § 1117(a) and 35 U.S.C. § 285,
finding that this is an exceptional case and awarding BDI its reasonable
attorneys’ fees.
J. For an order awarding exemplary damages as authorized by law.
K. For an order awarding BDI all of its costs, disbursements and other
expenses, pursuant to 15 U.S.C. § 1117(a), 28 U.S.C. § 1920 and other
applicable law.
L. For interest.
M. For such other relief as the circumstances may require and that the
Court may deem just and appropriate.
JURY DEMAND
BDI demands a trial by jury on all issues.
This the 11th day of December, 2018.
/s/ Alex J. Hagan

Alex J. Hagan, Esq. (NC State Bar No. 19037)
Jeremy M. Falcone, Esq. (N.C. State Bar No. 36182)
Ellis & Winters LLP
Post Office Box 33550
Raleigh, NC 27636
Telephone: (919) 865-7000
Facsimile: (919) 865-7010
Email: alex.hagan@elliswinters.com
Email: Jeremy.falcone@elliswinters.com
Local Civil Rule 83.1(d) Counsel
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Andrew M. Ollis (pro hac pending)
Frank J. West (pro hac pending)
Lisa M. Mandrusiak (pro hac pending)
OBLON, McCLELLAND,
MAIER & NEUSTADT, L.L.P.
1940 Duke Street
Alexandria, Virginia 22314
Telephone: (703) 413-3000
Facsimile: (703) 413-2220
Email: aollis@oblon.com
Email: fwest@oblon.com
Email: lmandrusiak@oblon.com
Counsel for Buyer’s Direct Inc.
24

EXHIBIT 1
Case 5:18-cv-00582-BO Document 1-1 Filed 12/11/18 Page 1 of 6

EXHIBIT 2

JS 44 (Rev. 06/17) 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.)
I. (a) PLAINTIFFS DEFENDANTS

Buyer's Direct Inc. Belk, Inc., Belk International, Inc. and Belk eCommerce, LLC
(b) County of Residence of First Listed Plaintiff Wilson, North Carolina 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)
Alex J. Hagan, Jeremy M. Falcone

Ellis & Winters LLP, PO Box 33550, Raleigh, NC 27636
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
Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6

Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
’ 110 Insurance PERSONAL INJURY PERSONAL INJURY ’ 625 Drug Related Seizure ’ 422 Appeal 28 USC 158 ’ 375 False Claims Act
’ 120 Marine ’ 310 Airplane ’ 365 Personal Injury - of Property 21 USC 881 ’ 423 Withdrawal ’ 376 Qui Tam (31 USC
’ 130 Miller Act ’ 315 Airplane Product Product Liability ’ 690 Other 28 USC 157 3729(a))
’ 140 Negotiable Instrument Liability ’ 367 Health Care/ ’ 400 State Reapportionment
’ 150 Recovery of Overpayment ’ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS ’ 410 Antitrust
& Enforcement of Judgment Slander Personal Injury ’ 820 Copyrights ’ 430 Banks and Banking
’ 151 Medicare Act ’ 330 Federal Employers’ Product Liability ’ 830 Patent ’ 450 Commerce
’ 152 Recovery of Defaulted Liability ’ 368 Asbestos Personal ’ 835 Patent - Abbreviated ’ 460 Deportation
Student Loans ’ 340 Marine Injury Product New Drug Application ’ 470 Racketeer Influenced and
(Excludes Veterans) ’ 345 Marine Product Liability ’ 840 Trademark Corrupt Organizations
’ 153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY ’ 480 Consumer Credit
of Veteran’s Benefits ’ 350 Motor Vehicle ’ 370 Other Fraud ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) ’ 490 Cable/Sat TV
’ 160 Stockholders’ Suits ’ 355 Motor Vehicle ’ 371 Truth in Lending Act ’ 862 Black Lung (923) ’ 850 Securities/Commodities/
’ 190 Other Contract Product Liability ’ 380 Other Personal ’ 720 Labor/Management ’ 863 DIWC/DIWW (405(g)) Exchange
’ 195 Contract Product Liability ’ 360 Other Personal Property Damage Relations ’ 864 SSID Title XVI ’ 890 Other Statutory Actions
’ 196 Franchise Injury ’ 385 Property Damage ’ 740 Railway Labor Act ’ 865 RSI (405(g)) ’ 891 Agricultural Acts
’ 362 Personal Injury - Product Liability ’ 751 Family and Medical ’ 893 Environmental Matters
Medical Malpractice Leave Act ’ 895 Freedom of Information
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ’ 790 Other Labor Litigation FEDERAL TAX SUITS Act
’ 210 Land Condemnation ’ 440 Other Civil Rights Habeas Corpus: ’ 791 Employee Retirement ’ 870 Taxes (U.S. Plaintiff ’ 896 Arbitration
’ 220 Foreclosure ’ 441 Voting ’ 463 Alien Detainee Income Security Act or Defendant) ’ 899 Administrative Procedure
’ 230 Rent Lease & Ejectment ’ 442 Employment ’ 510 Motions to Vacate ’ 871 IRS—Third Party Act/Review or Appeal of
’ 240 Torts to Land ’ 443 Housing/ Sentence 26 USC 7609 Agency Decision
’ 245 Tort Product Liability Accommodations ’ 530 General ’ 950 Constitutionality of
’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 535 Death Penalty IMMIGRATION State Statutes
Employment Other: ’ 462 Naturalization Application
’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 465 Other Immigration
Other ’ 550 Civil Rights Actions
’ 448 Education ’ 555 Prison Condition
’ 560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
’ 1 Original ’ 2 Removed from ’ 3 Remanded from ’ 4 Reinstated or ’ 5 Transferred from ’ 6 Multidistrict ’ 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
35 U.S.C. § 271
VI. CAUSE OF ACTION Brief description of cause:
Design patent infringement, trade dress infringement, and unfair competition
VII. REQUESTED IN ’ CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: ’ Yes ’ No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE Malcolm J. Howard DOCKET NUMBER 5:10-cv-00065-JG (EDNC)
DATE SIGNATURE OF ATTORNEY OF RECORD
12/11/2018 /s/ Alex J. Hagan
FOR OFFICE USE ONLY
RECEIPT # Case 5:18-cv-00582-BO

AMOUNT Document
APPLYING IFP 1-3 Filed 12/11/18 PageMAG.
JUDGE 1 ofJUDGE
2
Print Save As... Reset
JS 44 Reverse (Rev. 06/17)
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 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.
V. Origin. Place an "X" in one of the seven boxes.

Original Proceedings. (1) 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 – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to
changes in statue.
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.

AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT

for the
Eastern District
__________ of North
District Carolina
of __________
BUYER'S DIRECT INC. )

)
)
)
Plaintiff(s) )
)
v. Civil Action No. 5:18-cv-582
)
BELK, INC, BELK INTERNATIONAL, INC. AND )
BELK ECOMMERCE, LLC )
)
)
Defendant(s) )
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) Belk, Inc.

c/o Belk Legal Department
2801 W. Tyvola Road
Charlotte, North Carolina 28217
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are: Alex Hagan
Jeremy Falcone
Ellis & Winters LLP
P.O. Box 33550
Raleigh, NC 27636
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 5:18-cv-582
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)

was received by me on (date) .
’ I personally served the summons on the individual at (place)

on (date) ; or
’ I left the summons at the individual’s residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date) , and mailed a copy to the individual’s last known address; or
’ I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)
on (date) ; or
’ I returned the summons unexecuted because ; or
’ Other (specify):
.
My fees are $ for travel and $ for services, for a total of $ 0.00 .
I declare under penalty of perjury that this information is true.
Date:
Server’s signature
Printed name and title
Server’s address
Additional information regarding attempted service, etc:


for the
Eastern District
__________ of North
District Carolina
of __________

)
)
)
Plaintiff(s) )
)
)
)
)
Defendant(s) )
To: (Defendant’s name and address) Belk, Inc.

c/o National Registered Agents, Inc.
160 Mine Lake Court, Suite 200
Raleigh, NC 27615-6417
Jeremy Falcone
Ellis & Winters LLP
P.O. Box 33550
Raleigh, NC 27636
CLERK OF COURT
Date:

PROOF OF SERVICE


on (date) ; or

on (date) ; or
.
Date:
Server’s address


for the
Eastern District
__________ of North
District Carolina
of __________

)
)
)
Plaintiff(s) )
)
)
)
)
Defendant(s) )
To: (Defendant’s name and address) Belk eCommerce, LLC

2801 W. Tyvola Road
Jeremy Falcone
Ellis & Winters LLP
P.O. Box 33550
Raleigh, NC 27636
CLERK OF COURT
Date:

PROOF OF SERVICE


on (date) ; or

on (date) ; or
.
Date:
Server’s address


for the
Eastern District
__________ of North
District Carolina
of __________

)
)
)
Plaintiff(s) )
)
)
)
)
Defendant(s) )
To: (Defendant’s name and address) Belk Ecommerce LLC

160 Mine Lake Court, Suite 200
Raleigh, NC 27615-6417
Jeremy Falcone
Ellis & Winters LLP
P.O. Box 33550
Raleigh, NC 27636
CLERK OF COURT
Date:

PROOF OF SERVICE


on (date) ; or

on (date) ; or
.
Date:
Server’s address


for the
Eastern District
__________ of North
District Carolina
of __________

)
)
)
Plaintiff(s) )
)
)
)
)
Defendant(s) )
To: (Defendant’s name and address) Belk International, Inc.

2801 W. Tyvola Road
Jeremy Falcone
Ellis & Winters LLP
P.O. Box 33550
Raleigh, NC 27636
CLERK OF COURT
Date:

PROOF OF SERVICE


on (date) ; or

on (date) ; or
.
Date:
Server’s address


for the
Eastern District
__________ of North
District Carolina
of __________

)
)
)
Plaintiff(s) )
)
)
)
)
Defendant(s) )
To: (Defendant’s name and address) Belk International, Inc.

160 Mine Lake Ct. - Suite 200
Raleigh, North Carolina 27615-6417
Jeremy Falcone
Ellis & Winters LLP
P.O. Box 33550
Raleigh, NC 27636
CLERK OF COURT
Date:

PROOF OF SERVICE


on (date) ; or

on (date) ; or
.
Date:
Server’s address


Buyer S Direct v. Belk - Complaint

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Buyer S Direct v. Belk - Complaint

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IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NORTH CAROLINA

BUYER’S DIRECT INC., )

confusion, and engaging in unfair competition.

Case 5:18-cv-00582-BO Document 1 Filed 12/11/18 Page 1 of 24

principal place of business in Charlotte, North Carolina.

3. Upon information and belief, Belk International, Inc. is a North Carolina

corporation with its principal place of business in Charlotte, North Carolina.

JURISDICTION AND VENUE

claims based on state law pursuant to 28 U.S.C. § 1367(a).

Case 5:18-cv-00582-BO Document 1 Filed 12/11/18 Page 2 of 24

Eastern District of North Carolina.

personal jurisdiction over Belk International, Inc. in this district.

over Belk, Inc. in this district.

A. U.S. Design Patent No. D598,183

Case 5:18-cv-00582-BO Document 1 Filed 12/11/18 Page 3 of 24

Certificate is included in Exhibit 2 attached hereto and is incorporated by reference.

of the ’183 patent in the United States retail market.

foot coverings are shown below.

Case 5:18-cv-00582-BO Document 1 Filed 12/11/18 Page 4 of 24

foot coverings highlighting the above-described features is shown below:

Case 5:18-cv-00582-BO Document 1 Filed 12/11/18 Page 5 of 24

snoozies!® foot coverings during each of the past five years.

Case 5:18-cv-00582-BO Document 1 Filed 12/11/18 Page 6 of 24

Case 5:18-cv-00582-BO Document 1 Filed 12/11/18 Page 7 of 24

in the marketplace as to the origin of the product.

complexity as compared to cheaper alternatives.

Case 5:18-cv-00582-BO Document 1 Filed 12/11/18 Page 8 of 24

purchasing inventory for the 2008-2009 season.

coverings, called “Footsies.”

Case 5:18-cv-00582-BO Document 1 Filed 12/11/18 Page 9 of 24

and Belk International, Inc., No. 5:10-cv-00065 (W.D.N.C.).

copies Mud Pie, LLC’s trademarked designs.

private label brands.

Case 5:18-cv-00582-BO Document 1 Filed 12/11/18 Page 10 of 24

through a newly-created line of foot coverings.

under its private label brands.

36. This policy, practice, and plan consists of purchasing legitimately-developed

Case 5:18-cv-00582-BO Document 1 Filed 12/11/18 Page 11 of 24

label brands, including the following:

wrongfully-copied products under a private label brand, including the following:

a. By selling the wrongfully-copied products under a private label brand, Belk

Case 5:18-cv-00582-BO Document 1 Filed 12/11/18 Page 12 of 24

covering marketed under Belk’s NEW DIRECTIONS trademark.

Carolina store on November 23, 2018, shown below:

42. The following exemplary comparison of Belk’s NEW DIRECTIONS foot

coverings with figures from the ’183 patent demonstrate infringement:

Case 5:18-cv-00582-BO Document 1 Filed 12/11/18 Page 13 of 24

the first Complaint was filed against Belk.

Case 5:18-cv-00582-BO Document 1 Filed 12/11/18 Page 14 of 24

BDI will continue to suffer irreparable injury and monetary damages.

infringement of the ’183 Patent.

independently constitute acts of direct infringement of the ’183 Patent.

Case 5:18-cv-00582-BO Document 1 Filed 12/11/18 Page 15 of 24

design, appearance and trade dress.

54. As a result of BDI’s advertising and promotion of snoozies!® foot coverings by

acquired secondary meaning in the marketplace as to the origin of the product.

55. The distinctive trade dress of snoozies!® is non-functional and ornamental.

violation of 15 U.S.C. § 1125(a).

NEW DIRECTIONS foot coverings demonstrate infringement:

Case 5:18-cv-00582-BO Document 1 Filed 12/11/18 Page 16 of 24

confusion between BDI’s foot coverings and Belk’s foot coverings.

making this an exceptional case within the meaning of 15 U.S.C. § 1117.