IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY BATH & BODY WORKS BRAND

MANAGEMENT, INC., Plaintiff, C1ML ACTION NO.__________

V.

TRI-COASTAL DESIGN GROUP, INC., Defendant.

COMPLAINT AND DEMAND FOR JURY TRIAL Plaintiff, Bath & Body Works Brand Management, Inc. (BBW), by and through its attorneys, alleges on knowledge as to its own acts and otherwise on information and belief as follows: NATURE OF THE ACTION 1. This is an action for design patent infringement, trade dress infringement, trademark infringement, unfair competition, and unjust enrichment in violation of the laws of the United States and the State of New Jersey. BBW seeks an injunction, damages, and related relief. JURISDICTION AND VENUE 2. The Court has jurisdiction over this matter pursuant to 35 U.S.C. U.S.C.

et seq., 15

1121, and 28 U.S.C. 1331, 1338, and 1367. BBWs claims arise under the Patent 1
et seq., under the Lanham Trademark Act of 1946, as amended, 15 U.S.C.

Act, 35 U.S.C.

1051, et seq., and related claims under the statutory and common law of the state of New Jersey.

3. Venue in the United States District Court for the District of New Jersey is proper pursuant to 28 U.S.C.

1391(b) or (c) and 1400(b). Defendant has committed acts of

infringement in this District and has a regular and established place of business in Wharton,

New Jersey. THE PARTIES 4. BBW is a Delaware corporation with a place of business at 5 Limited Parkway East, Reynoldsburg, Ohio 43068. 5. Defendant is a New Jersey corporation with a place of business at 20 Harry Shupe, Wharton, New Jersey 07885. BACKGROUND BBWs Business and Its Patent and Trade Dress Rights in Its Shower Gel and Hand Soap Products 6. BBW is a leading retailer of personal care products such as shower gels, liquid hand soaps, and lotions. BBW sells its products only through its BATH & BODY WORKS retail stores. 7. BBW is the owner of U.S. Design Patent No. D6 15,415 (the 415 Patent), entitled Bottle. A true and correct copy of the 415 Patent is attached hereto as Exhibit A. The 415 Patent covers an ornamental design for a bottle. Figure 1 of the 415 Patent is reproduced here:

Fia. 1 of BBWs 415 Patent

8. BBW is also the owner of U.S. Design Patent No. D623,532 (the 532 Patent), entitled Bottle. A true and correct copy of the 532 Patent is attached hereto as Exhibit B. The 532 Patent covers an ornamental design for a bottle. Figure 1 of the 532 patent is shown here:

Fig. 1 of BBWs 532 Patent

9. BBW is also the owner of protected trade dress in the appearance of its shower gel and liquid hand soap product packaging. 10. BBW s protected trade dress in the appearance of its shower gel product packaging (the Shower Gel Trade Dress) includes a transparent hourglass shape bottle with ornamental side fluting, a contoured front label with stylized photographic images suggesting the source products scent, a metallic screw-on cap, and text on a transparent background on the back of the bottle. 11. BBW has used the Shower Gel Trade Dress in commerce. The Shower Gel Trade Dress is non-functional, inherently distinctive, and has acquired secondary meaning in the marketplace. 12. An example of BBWs Shower Gel Trade Dress is shown here:

13. BBWs protected trade dress in the appearance of its liquid hand soap product packaging (the Liquid Hand Soap Trade Dress) includes a transparent, tapered trapezoid bottle, a contoured front label with stylized photographic images suggesting the products scent, and text on a transparent background on the back of the bottle. 14. BBW has used the Liquid Hand Soap Trade Dress in commerce. The Liquid Hand Soap Trade Dress is non-functional, inherently distinctive, and has acquired secondary meaning in the marketplace.

15. An example of BBWs Liquid Hand Soap Trade Dress is shown here:

16. BBW is also the owner of U.S. Trademark Registration No. 2,574,220 for the mark SWEET PEA for use in association with personal care products, namely, shower gel, shower cream, body lotion, body cream, fragrant body mist, bath oil powder, hand cream, nail cream, skin exfoliating cream, hand soap, face soap and body soap. 17. The SWEET PEA registration has achieved incontestable status pursuant to 15 U.S.C. 1065, and constitutes prima facie evidence of the marks validity and conclusive evidence of BBWs exclusive right to use the SWEET PEA mark in connection with the goods identified in the registration and other commercial goods. 18. BBW has been using the SWEET PEA mark in commerce for more than ten years.

Defendants Business and Its Infrinin2 Acts 19. Defendant is headquartered in New Jersey. Like BBW, Defendant sells personal care products such as shower gels and liquid hand soap. Defendant is a direct competitor of BBW. 20. Defendant, without BBW s authority, is offering for sale within the United States certain shower gel and liquid hand soap products that appropriate the designs protected by the
415 and 532 Patents, by the BBW Shower Gel Trade Dress, and by the Liquid Hand Soap

Trade Dress. Defendant is also offering for sale certain products that infringe BBW s SWEET PEA mark. Defendant provides the infringing products under the name Simple Pleasures. 21. One of Defendants accused Simple Pleasures shower gel products is shown here, along with a corresponding figure from the 415 Patent: 415 Patent, Figure 1 Det hr I Bottle

22. In the eyes of the ordinary observer familiar with the relevant prior art, giving such

attention as a purchaser usually gives, the design claimed in the 415 Patent and Defendants Simple Pleasures shower gel bottle is substantially the same.

23. In addition, the appearance of Defendants accused Simple Pleasures shower gel bottle is likely to cause confusion with BBWs Shower Gel Trade Dress. 24. Furthermore, Defendants Simple Pleasures shower gel, shown above, includes BBWs SWEET PEA mark on its label.
25. A photograph of one of Defendants Simple Pleasures hand soap products is

shown here along with the corresponding figure from the 532 Patent:

26. In the eyes of the ordinary observer familiar with the relevant prior art, giving such attention as a purchaser usually gives, the design claimed in the 532 Patent and Defendants Simple Pleasures hand soap bottle is substantially the same. 27. In addition, the appearance of Defendants accused Simple Pleasures hand soap bottle is likely to cause confusion with BBWs Liquid Hand Soap Trade Dress. 28. At all relevant times, Defendant has had knowledge of the 415 and 532 Patents, and its offer for sale and sale of the Simple Pleasures shower gel and hand soap products constitutes willful, deliberate infringing activity. 29. Defendants use of the BBW Trade Dress is not limited to a single product. Rather,

Defendant has copied the BBW Trade Dress across its entire line of liquid hand soap products. For example, Defendant has adopted the following product names in an effort to usurp BBWs goodwill: BBWs Product Sweet Pea Coconut Lime Verbena Peach Bellini Fresh Market Apple Defendants Product Hdrangea Sweet Pea Coconut Lime Peach Mango Harvest Apple

30. Defendants actions establish that it has engaged in an intentional campaign to duplicate the product packaging, trade dress, and registered trade marks of an entire line of BBW products in an effort to usurp the significant goodwill associated with BBWs brands, as shown below.

FIRST CLAIM FOR RELIEF INFRINGEMENT OF THE 415 PATENT 31. BBW repeats and realleges each of the allegations of the foregoing paragraphs. 32. On information and belief, Defendant, alone or in concert with others, has made, used, offered for sale, sold, or imported in this District and elsewhere in the United States, products, including shower gel products, the bottles of which infringe the claim of the 415 Patent. 33. By its actions, Defendant has violated 35 U.S.C.

271.

34. On information and belief, Defendants infringement will continue unless enjoined by this Court. 35. BBW is being damaged by Defendants infringement of the 415 Patent and will continue to be irreparably damaged unless this Court enjoins Defendants infringement. BBW does not have an adequate remedy at law. 36. On information and belief, Defendants infringement of the 415 Patent is and has been willful and BBW is entitled to an award of multiple damages and attorney fees. SECOND CLAIM FOR RELIEF INFRINGEMENT OF THE 532 PATENT 37. BBW repeats and realleges each of the allegations of the foregoing paragraphs. 38. On information and belief, Defendant, alone or in concert with others, has made, used, offered for sale, sold, or imported in this District and elsewhere in the United States, products, including liquid hand soap products, the bottles of which infringe the claim of the 532 Patent. 39. By its actions, Defendant has violated 35 U.S.C.

271.

40. On information and belief, Defendants infringement will continue unless enjoined by this Court. 41. BBW is being damaged by Defendants infringement of the 532 Patent and will continue to be irreparably damaged unless this Court enjoins Defendants infringement. BBW does not have an adequate remedy at law. 42. On information and belief, Defendants infringement of the 532 Patent is and has been willful and BBW is entitled to an award of multiple damages and attorney fees. THIRD CLAIM FOR RELIEF INFRINGEMENT OF BBWS SHOWER GEL TRADE DRESS 43. BBW repeats and realleges the allegations contained in the preceding paragraphs of the Complaint as if the same were fully rewritten herein. 44. By the acts and omissions set forth above, Defendant is violating Lanham Act 43(a), 15 U.S.C.

1125(a) and infringing BBWs Shower Gel Trade Dress. Defendants use in

commerce of its Simple Pleasures shower gel as shown above constitutes a false designation of origin, a false and misleading description of fact, and a false and misleading representation of fact, which is likely to cause confusion, mistake, and to deceive by wrongly suggesting an affiliation, connection, or association between the Defendants Simple Pleasures shower gel and BBW and its products. Such use by Defendant is also likely to cause confusion, mistake, and to deceive as to the origin, sponsorship, or approval of the Defendants Simple Pleasures shower gel by BBW. 45. Such use by Defendant of its Simple Pleasures shower gel constitutes trade dress infringement in violation of the Lanham Act

43(a), 15 U.S.C. 1125(a).

10

46. Defendant has acted with knowledge of BBWs ownership rights in the BBW Shower Gel Trade Dress and with deliberate intention or willful blindness to unfairly benefit from the incalculable goodwill symbolized thereby. 47. Defendant has made and will continue to make substantial profits and gains to which it is not, in law or equity, entitled. 48. Defendant intends to continue its infringing acts unless retrained by this Court. 49. Defendants acts have damaged and will continue to damage BBW, and BBW has no adequate remedy at law. FOURTH CLAIM FOR RELIEF INFRINGEMENT OF BBWS LIOUID HAND SOAP TRADE DRESS
50. BBW repeats and realleges the allegations contained in the preceding paragraphs of

the Complaint as if the same were fully rewritten herein.

51. By the acts and omissions set forth above, Defendant is violating Lanham Act 15 U.S.C.

43(a),

1125(a) and infringing BBWs Liquid Hand Soap Trade Dress. Defendants use in

commerce of its Simple Pleasures liquid hand soap as shown above constitutes a false designation of origin, a false and misleading description of fact, and a false and misleading representation of fact, which is likely to cause confusion, mistake, and to deceive by wrongly suggesting an affiliation, connection, or association between the Defendants Simple Pleasures liquid hand soap and BBW and its products. Such use by Defendant is also likely to cause confusion, mistake, and to deceive as to the origin, sponsorship, or approval of the Defendants Simple Pleasures liquid hand soap by BBW. 52. Such use by Defendant of its Simple Pleasures liquid hand soap constitutes trade dress infringement in violation of the Lanham Act

43(a), 15 U.S.C. 1125(a).

11

53. Defendant has acted with knowledge of BBWs ownership rights in the BBW Liquid Hand Soap Trade Dress and with deliberate intention or willful blindness to unfairly benefit from the incalculable goodwill symbolized thereby. 54. Defendant has made and will continue to make substantial profits and gains to which it is not, in law or equity, entitled. 55. Defendant intends to continue its infringing acts unless retrained by this Court. 56. Defendants acts have damaged and will continue to damage BBW, and BBW has no adequate remedy at law. FIFTH CLAIM FOR RELIEF INFRINGEMENT OF BBWS REGISTERED SWEET PEA MARK 57. BBW repeats and realleges the allegations contained in the preceding paragraphs of the Complaint as if the same were fully rewritten herein. 58. By the acts and omissions set forth above, Defendant is violating Lanham Act 15 U.S.C.

32,

1114 is infringement of a registered mark and infringing BBWs rights in its

registered SWEET PEA mark. Defendants use in commerce of BBWs SWEET PEA mark constitutes infringement of registered rights, which is likely to cause confusion, mistake, and to deceive by wrongly suggesting some affiliation, connection, or association between the Defendants products and BBW and its products. Such use by Defendant is also likely to cause confusion, mistake, and to deceive as to the origin, sponsorship, or approval of the Defendants products by BBW. 59. Defendants acts have damaged and will continue to damage BBW, and BBW has no adequate remedy at law.

12

SIXTH CLAIM FOR RELIEF UNFAIR COMPETITION UNDER N.J. STAT. ANN. 56:4-1 60. BBW repeats and realleges the allegations contained in the preceding paragraphs of the Complaint as if the same were fully rewritten herein. 61. The foregoing acts of Defendant are a misappropriation of BBW s brand, trademark, trade dress, reputation and goodwill, including, without limitation, BBWs Liquid Hand Soap Trade Dress, its Shower Gel Trade Dress, and its SWEET PEA mark. 62. Defendants acts constitute unfair competition in violation of N.J. Stat. Ann.

56:4-1.

63. On information and belief, Defendant has made and will continue to make substantial profits and gains to which they are not in law or equity entitled. 64. On information and belief, Defendants activities are unfair and willful. 65. Because of Defendants conduct, BBW has and will continue to sustain substantial damages and irreparable injury, for which there is no adequate remedy at law. 66. Defendant is liable to BBW for all damages, whether direct or indirect, for the misappropriation of BBWs name, brand, trademark, trade dress, reputation and goodwill, and those damages are subject to trebling. SEVENTH CLAIM FOR RELIEF COMMON LAW UNFAIR COMPETITION 67. BBW repeats and realleges the allegations contained in the foregoing paragraphs. 68. Defendants willful acts of infringement of BBW s rights constitutes unfair competition in violation of New Jersey common law. EIGHTH CLAIM FOR RELIEF COMMON LAW TRADEMARK INFRINGEMENT 69. BBW repeats and realleges the allegations contained in the foregoing paragraphs. 13

70. BBW owns all rights, title, and interest in the Shower Gel Trade Dress, Liquid Hand Soap Trade Dress, and SWEET PEA mark. 71. Defendant, without authorization from BBW, has used and is continuing to use the Shower Gel Trade Dress, Liquid Hand Soap Trade Dress, and SWEET PEA mark. 72. Defendants use in commerce of its Simple Pleasures shower gel and liquid hand soap, including, without limitation, the Sweet Pea variety of the same, is intended to cause, has caused, and is likely to continue to cause confusion, mistake, and deception among consumers, the public, and the trade as to whether those products originate from, or are affiliated with, sponsored by, or endorsed by BBW. 73. On information and belief, Defendant has acted with knowledge of BBWs ownership of the Shower Gel Trade Dress, Liquid Hand Soap Trade Dress, and SWEET PEA mark, and with deliberate intent or willful blindness to unfairly benefit from their goodwill. 74. Defendants acts constitute trademark infringement in violation of the common law of the State of New Jersey. 75. On information and belief, Defendant has made and will continue to make substantial profits and gains to which they are not in law or equity entitled. 76. On information and belief, Defendant intends to continue its infringing acts unless enjoined from doing so by this Court. 77. Defendants acts have damaged and will continue to damage BBW, and BBW has no adequate remedy at law. NINTH CLAIM FOR RELIEF COMMON LAW UNJUST ENRICHMENT 78. BBW repeats and realleges the allegations contained in the foregoing paragraphs.

14

79. Defendants acts set forth above constitute Defendants unjust enrichment at BBWs expense, in violation of the common law of the State of New Jersey.

WHEREFORE, BBW respectfully requests that this Court enter judgment against Defendant as follows: A. enter judgment in favor of BBW and against Defendant for infringement of the 415 Patent; B. enter judgment in favor of BBW and against Defendant for infringement of the 532 Patent; C. enter judgment in favor of BBW and against Defendant for unfair competition in the nature of infringement of BBW s trade dress and SWEET PEA trademark in violation of Sections 32 and 43(a) of the Lanham Act, 15 U.S.C. 1, and the common law of New Jersey; D. order the infringing goods be recalled and/or gathered by Defendant from all retail or wholesale outlets to which Defendant has sold or delivered the goods; E. order the infringing goods be impounded and subsequently be destroyed; F. enter an order directing Defendant to deliver to BBW for destruction all advertisements, circulars, brochures or other promotional or advertising items or materials for its infringing goods; G. award enhanced damages to BBW adequate to compensate for the infringement of the 415 Patent, but in no event less than a reasonable royalty for the use made of the patented

1114 and 1125(a), N.J. Stat. Ann. 56:4-

15

design by Defendant, together with interest and costs as fixed by the Court; H. award enhanced damages to BBW adequate to compensate for the infringement of the 532 Patent, but in no event less than a reasonable royalty for the use made of the patented design, together with interest and costs fixed by the Court; I. declare this to be an exceptional case and award BBW its attorneys fees and costs incurred in connection with bringing this action; and J. award BBW such other and further relief as this Court deems just and equitable. Respectfully subrfii&d,

Christopher N. Tomlin tomlinc @ballardspahr.com BALLARD SPAHR LLP 210 Lake Drive East, Suite 200 Cherry Hill, New Jersey 08002-1163 (856) 761-3400 Of counsel: Lynn E. Rzonca (pro hac vice admission to be sought) BALLARD SPAHR LLP 1735 Market Street, 51st Floor Philadelphia, PA 19103 (215) 665-8500 Katrina M. Quicker (pro hac vice admission to be sought) Richard W. Miller (pro hac vice admission to be sought) BALLARD SPAHR LLP 999 Peachtree Street, NE Atlanta, GA 30309 (678) 420-9300 Attorneys for Plaintiff Bath & Body Works Brand Management, Inc. Date: February 16, 2012

16

CERTIFICATION PURSUANT TO LOCAL RULE 11.2 The undersigned hereby certifies that the within matter in controversy is not the subject of any other pending or contemplated action or of any pending arbitration or administrative proceeding.

CHRISTOPHER N. TOMLIN Dated: February 16, 2012

17