2.

This action arises from Defendants patent infringement, unfair and deceptive business practices, and offer for sale, sale and distribution of products which are deceptive copies of Plaintiffs patented product designs and trade dress.

3.

Upon information and belief, this Court has personal jurisdiction over Defendant in that Defendant has intentionally directed its tortious activities toward New York, including this judicial district. Defendant has delivered its infringing products into this State with the expectation that they will be purchased by consumers in this State, including in this judicial district.

4.

Upon information and belief, venue is proper in this Court pursuant to 28 U.S.C. 1391(b) and (c) and 28 U.S.C. 1400(b).

THE PARTIES 5. Plaintiff Skidders is a corporation organized and existing under the laws of the State of New York having a principal place of business at 10 West 33rd Street, Suite 910, New York, New York 10001. 6. Upon information and belief, Defendant IPlay is a corporation organized and existing under the laws of the State of Delaware, having its principal place of business at 2000 Riverside Drive, Suite 9, Asheville, North Carolina 28804. IPlay sells baby footwear and other baby accessories and clothing in the United States.

FACTS PLAINTIFFS PATENT 7. Michael Matalon is the inventor of a novel and unique ornamental design relating to a childrens shoe. 8. On July 10, 2010, United States Patent No. D619,790 S entitled Childrens Shoe was duly and lawfully issued to Michael Matalon by the United States Patent and Trademark Office (hereinafter the 790 patent). A copy of the 790 patent is attached as Exhibit 1 hereto. 9. Skidders is the owner of all right, title and interest in the 790 patent, by virtue of the assignment of patent rights attached as Exhibit 2 hereto.

DEFENDANTS INFRINGEMENT OF PLAINTIFFS PATENT 10. During the term of the 790 patent, Defendant IPlay has manufactured, offered for sale, sold, used and/or imported products embodying the patented designs of the 790 patent. 11. Defendants infringing products include childrens shoes currently being sold under the IPlay Shore Shoes name. Examples of infringing products marketed by Defendant are attached as Exhibit 3 hereto. 12. Defendants acts have been without license or authority of Plaintiff.

PLAINTIFFS TRADE DRESS 13. Plaintiff Skidders is a popular childrens shoe and footwear company headquartered in New York. Plaintiff Skidders is well-known throughout the United States as a result of

the popular products it has designed, introduced and commercialized in interstate commerce for use by babies, young children, and women. 14. Plaintiff is the owner of all right, title and interest in and to the trademarks and trade dress associated with its products. 15. Plaintiff has used its trademarks and trade dress on a wide variety of childrens, infants and womens footwear and shoes sold in interstate commerce, including, but not limited to, childrens shoes, socks, knee pads, tights, booties and womens gripper socks. Plaintiff has generated millions in dollars revenue from the sale of goods under its trademark and trade dress. 16. Significant time, funds and effort were expended by Plaintiff in designing and developing aesthetically appealing and attractive product designs for Plaintiffs goods. 17. Significant sums of money, time and effort were also expended in promoting, advertising, commercializing and popularizing Plaintiffs goods. 18. As a result of Plaintiffs design efforts and promotional activities, Plaintiffs product designs, trademarks, and trade dress have all become widely known throughout the United States, and associated with Plaintiff. 19. 20. Plaintiffs products are popular and well known products in their industry. The appearance of Plaintiffs original design of its soft childrens shoe (childrens shoe) is a distinctive symbol which serves as a trademark or trade dress of Plaintiffs products in interstate commerce in the United States. 21. The design and appearance of Plaintiffs childrens shoe has acquired secondary meaning, and is recognized as identifying Plaintiffs high-quality products and services.

22.

Plaintiffs intellectual property, including its trademarks, trade dress, and associated goodwill directed towards its childrens shoe, are all valuable assets of Plaintiff.

23.

Defendant IPlays bad faith activities have caused and will continue to cause a likelihood of deception and confusion in the marketplace among consumers, and extensive damage to Plaintiff and its business, goodwill and reputation.

DEFENDANTS INFRINGEMENT OF PLAINTIFFS TRADE DRESS 24. The overall appearance of Skidders childrens shoe design is protectable, distinctive, non-functional trade dress. Specifically, and as further identified and illustrated in

Exhibit 4, Plaintiffs trade dress includes the general overall appearance generated by the following elements in arrangement and combination: a baby or toddlers shoe, the shoe having a shoelace-free top, the top consisting of a tubular knit upper extending across the width of the top of the shoe, with a knit cuff above the heel of the foot, the top being attached to a thick rubber outsole, the knit top and rubber outsole presenting an appearance of contrasting materials, the outsole having a rubber toe region at the top front of the shoe and having nub-like elements forming a spotted array on the bottom of the shoe. 25. Without authorization, Defendant IPlay has manufactured, imported, used, offered for sale, and/or sold products embodying Skidders trade dress. Attached hereto as Exhibit 4 are examples of Plaintiffs shoe shown next to examples of the deceptive and confusing knock-offs that Defendant has offered for sale, sold, and distributed, and is continuing to offer for sale, sell and distribute in interstate commerce. Plaintiffs original designs are on the left side of the exhibit; Defendants knock-offs are on the right side of the exhibit.
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DEFENDANTS ONGOING INFRINGEMENT 26. Upon information and belief, IPlay is familiar with Skidders original design to its childrens shoe and is aware of the patent and trade dress associated therewith, and has deliberately chosen to reproduce, copy, offer for sale, sell and distribute its unauthorized and infringing product. 27. 28. Upon information and belief, Defendant IPlays actions have been willful and deliberate. IPlays actions have caused and are causing irreparable harm to Skidders, its business and its reputation. 29. Skidders has been extensively damaged by IPlays bad faith activities and will continue to be damaged unless IPlay is restrained and enjoined by this Court. 30. 31. Skidders has no adequate remedy at law. Skidders has been extensively damaged by IPlays illegal actions in an amount to be determined by a jury and this Court, and seeks damages and restitution for its injuries and IPlays illegal gains, including, but not limited to, Skidders lost sales, lost profits, and injury to its reputation and good will, and disgorgement of IPlays revenues and profits.

COUNT I PATENT INFRINGEMENT (35 U.S.C. 101 et seq.) 32. Plaintiff Skidders repeats and re-alleges each and every allegation contained in paragraphs 1 through 31 as though fully set forth herein. 33. 34. 35. This claim arises under 35 U.S.C. 101 et seq. This Court has jurisdiction over this claim pursuant to 28 U.S.C. 1331. Defendant IPlays acts constitute infringement of the 790 patent under 35 U.S.C. 271.

36.

Upon information and belief, Defendants acts of infringement were and are with knowledge of the 790 patent.

37. 38. 39.

Upon information and belief, Defendants acts of infringement are willful and deliberate. Defendant has profited from its infringing activities. As a result of Defendants conduct, Plaintiff has been irreparably harmed, have suffered actual damages, have suffered lost profits, and have been forced to retain legal counsel and pay costs of court to bring this action.

COUNT II LANHAM ACT TRADE DRESS INFRINGEMENT AND UNFAIR COMPETITION (15 U.S.C. 1125a) 40. Plaintiff Skidders repeats and re-alleges the allegations set forth in Paragraphs 1-39 of this Complaint, as though fully set forth herein. 41. 42. 43. This claim arises under the Lanham Act, 15 U.S.C. 1501 et seq. The court has jurisdiction over this claim pursuant to 28 U.S.C. 1331. As set forth in the foregoing paragraphs, Defendant IPlay is using trade dress similar to that of Plaintiff Skidders childrens shoe in a manner that has caused and is likely to cause confusion, or to cause mistake, to deceive as to the affiliation, connection or association of Defendant with Plaintiff, and/or as to the origin, sponsorship, or approval of Defendants goods by Plaintiff. 44. Defendants activities in offering for sale, selling and distributing products which are confusingly similar to Plaintiffs childrens shoe products, constitute unfair competition, false designation of origin, and false description and representations, in violation of Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a).
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45.

Defendants acts of trade dress infringement and unfair competition were and are willful and deliberate.

46. 47.

Defendant has profited from its illegal and bad faith activities. Plaintiff has suffered and continues to suffer substantial damages as a result of Defendants bad faith activities, in an amount to be determined by the jury and this Court.

COUNT III UNFAIR COMPETITION UNDER NEW YORK LAW 48. Plaintiff Skidders repeats and re-alleges the allegations set forth in Paragraphs 1-47 of this Complaint, as though fully set forth herein. 49. 50. 51. This claim arises under the common law of the State of New York. This Court has jurisdiction over this claim pursuant to 28 U.S.C. 1367. Plaintiff has created and promoted its childrens shoe, including its trademarks, packaging and trade dress, through extensive time, labor, skill and money. 52. Defendant IPlay has misappropriated the results of that labor and skill and those expenditures of Plaintiff. 53. Defendant has used designs and trade dress that are identical to or confusingly similar to Plaintiffs designs and trade dress, for identical or highly similar goods, in competition with Plaintiff, gaining an unfair advantage, because Defendant bore little or no burden of expense of development and promotion of the designs and trade dress. 54. By knowingly using confusingly similar designs and trade dress for identical or highly similar goods to compete against Plaintiffs goods, Defendant has misappropriated a commercial advantage belonging to Plaintiff.

55.

Defendant has engaged in bad faith misappropriation of the labors of Plaintiff, which is likely to cause confusion, and to deceive purchasers as to the origin of the goods, and which dilutes the value of Plaintiffs product designs and trade dress.

56.

Defendants acts of misappropriation and unfair competition have caused significant commercial damage to Plaintiff.

57.

Defendants business conduct is illegal and actionable under the common law of unfair competition of the State of New York.

58.

Plaintiff has been injured by Defendants illegal actions and is entitled to the remedies provided for under New York law.

COUNT IV VIOLATION OF NEW YORK GENERAL BUSINESS LAW SECTION 360-1 59. Plaintiff Skidders repeats and realleges each and every allegation contained in paragraphs 1-58 as if fully set forth herein. 60. 61. This court has jurisdiction over this claim pursuant to 28 U.S.C. 1367. Defendant IPlays misappropriations and infringement through the sale, offer for sale and distribution of products bearing trade dress substantially similar to that of Plaintiffs products create a likelihood of injury to Plaintiffs business reputation and likelihood of dilution of the distinctive quality of Plaintiffs childrens shoe products in violation of Section 360-1 of the New York General Business Law. 62. Defendants activities have also caused actual injury to Plaintiffs business reputation and actual dilution of the distinctive quality of Plaintiffs childrens shoe products.

63.

By reason of the foregoing, Plaintiff has been injured by Defendants illegal actions and is entitled to the remedies provide for in the New York General Business Law.

JURY TRIAL DEMAND 64. Pursuant to Rule 38, Fed. R. Civ. P., Plaintiff hereby demands a trial by jury on all issues set forth herein that are properly triable by a jury.

PRAYER FOR RELIEF Wherefore, Plaintiff Skidders respectfully requests that this Court grant the following relief to Plaintiff and against Defendant IPlay: A. That Defendant be adjudged to have engaged in patent infringement of Plaintiffs rights under the 790 patent under 35 U.S.C. 101 et seq. B. That Defendant be adjudged to have engaged in federal unfair competition and trade dress infringement under Section 43 of the Lanham Act, 15 U.S.C. 1125, and unfair competition and trade dress dilution under the common law and/or statutory law of the State of New York, in violation of Plaintiffs rights. C. That Skidders 790 patent was duly and legally issued by the U.S. Patent Office, and that Skidders patent rights and trade dress rights are all valid and enforceable. D. That Defendant, its officers, agent, servants, employees, representatives, distributors and all persons in concern or participation with Defendant be enjoined pursuant to 35 U.S.C. 283 from engaging in any activities which infringe Plaintiffs rights in the 790 patent under 35 U.S.C. 271;

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E.

That Defendant, its officers, agents servants, employees, representatives, distributors, and that all persons in concern or participation with Defendant be enjoined pursuant to 35 U.S.C. 283 from making, using, importing, exporting, offering for sale and selling any products which directly infringe or contributorily or actively induce infringement of the 790 patent under 35 U.S.C. 271;

F.

That Defendant, its officers, agents, servants, employees, representatives, distributors and all persons in concern or in participation with Defendant be enjoined from engaging in any activities which infringe Plaintiffs rights in their product or advertising materials, including Plaintiffs rights in their trademark and trade dress;

G.

That Defendant, its officers, agents, servants, employees, representatives, distributors and all persons in concern or participation be permanently enjoined from offering for sale, selling or marketing merchandise in any way that tends to deceive, mislead or confuse the public into believing that Defendants merchandize in any way originates with, is sanctioned by, or affiliated with Plaintiff.

H.

That Defendant, its officers, agents servants, employees, representatives, distributors, and all persons in concern or participation with Defendant be enjoined from otherwise competing unfairly with Plaintiff;

I.

That Defendant, its officers, agents, servants, employees, representatives, distributors, and all persons in concern or participation with Defendant be enjoined from engaging in further acts of misrepresentation regarding Plaintiff and Plaintiffs products;

J.

That Defendant its officers, agents, servants, employees, representatives, distributors, and all persons in concern or participation with Defendant be enjoined from engaging in further deceptive and unfair business practices with respect to Plaintiff;

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K.

That Defendant its officers, agents, servants, employees, representatives, distributors, and all persons in concern or participation with Defendant be enjoined from engaging in further violations of Plaintiffs rights under federal and state law;

L.

That Defendant be directed to file with this Court and serve on Plaintiff within thirty (30) days after service of the injunction, a report in writing, under oath, setting forth in detail the manner and form in which Defendant has complied with the injunction;

M.

That Defendant be required to account for and pay over to Plaintiff for any and all damages sustained by Plaintiff, including its lost profits, but no less than a reasonable royalty, as well as any and all of Defendants gains, revenues, profits, and advantages attributable to or derived by the acts complained of in this Complaint, including an assessment of interest on the damages so complained, and that the damages be trebled, pursuant to Section 35 of the Lanham Act, 15 U.S.C. 1117, as well as 35 U.S.C. 284 and 289, and all other applicable law;

N.

That such award of damages be enhanced to the maximum amount available for each infringement in view of Defendants willful infringement of Plaintiffs rights.

O.

That Defendant be required to deliver up for impoundment during the pendency of this action, and for destruction thereafter, all copies of the infringing materials in its possession or under its control and all material, including master models, used for making the same.

P.

That Plaintiff be awarded punitive or exemplary damages because of the egregious, malicious and tortious conduct of Defendant complained of herein;

Q.

That Plaintiff recover the costs of this action including its expenses and reasonable attorneys fees pursuant to 15 U.S.C. 1117, 35 U.S.C. 285 and all further applicable

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