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2 Dogs Distribution v. Cyberush Products - Complaint
2 Dogs Distribution v. Cyberush Products - Complaint
12 Defendant.
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15 against Cyberush Products Ltd. d/b/a Toogli (Toogli or Defendant), hereby alleges as
16 follows:
19 unfair competition arising under 35 U.S.C. 1, et seq., 15 U.S.C. 1051, et seq., and
21 2. This Court has subject matter jurisdiction over this action pursuant to at
22 least 35 U.S.C. 100 et seq., including 35 U.S.C. 271 and 281, 15 U.S.C. 1121, and
23 28 U.S.C. 1331 and 1338 because this action arises under the patent and trademark
24 laws of the United States. This Court has supplemental jurisdiction over the remaining
26 3. This Court has personal jurisdiction over Defendant because it has, directly
27 or through its agents and/or intermediaries, committed acts within, and directed to, this
28 District giving rise to this action and/or has established such minimum contacts with this
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Case 2:17-cv-02725-DJH Document 1 Filed 08/11/17 Page 2 of 15
1 District such that the exercise of jurisdiction would not offend traditional notions of fair
2 play and substantial justice.
3 4. Particularly, upon information and belief, Defendant and/or its agents
4 and/or intermediaries, offers for sale and/or sells its products in Arizona, including the
5 products accused of infringement in this action, through several distributors in the United
6 States, without geographical limitation or restriction as to the method of sale, including
7 through distributors who offer such products for sale over the Internet with free
8 nationwide shipping, including products for sale within or into this judicial district, in
9 direct competition Plaintiff within this judicial district. Defendant also sells and offers its
10 products for sale through Internet-based distributors, including Amazon and its own
11 internet store at toogli.com. Defendants accused product is also offered for sale on
12 Bonanza.com, OlivesMall, The Newish Warehouse, and Chickadee Solutions.
13 5. Upon information and belief, and as further described herein, Defendant
14 has committed patent infringement in Arizona that has led to foreseeable harm and injury
15 to Plaintiff. On information and belief, Defendant derives substantial revenue from the
16 sale of its infringing products distributed within this District and/or should reasonably
17 expect its actions to have consequences in this District.
18 6. Additionally, Defendant is subject to jurisdiction in the United States and
19 specifically in this District, pursuant to Fed. R. Civ. P. 4(k)(2). Defendant has contacts
20 within the United States that include, inter alia, offering to sell and/or selling infringing
21 products within this Judicial District and/or having infringing products imported into the
22 United States.
23 7. Venue is proper in this District pursuant to 28 U.S.C. 1391(b) and (c) and
24 28 U.S.C. 1400(b).
25 PARTIES
26 8. 2 DOGS is a Delaware limited liability company with a principal place of
27 business at 125 W. Gemini Dr., Suite E1-E2 in Tempe, Arizona 85283.
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22 11. 2 DOGS seeks to exploit the reach of THE MOMMY HOOK brand and
23 product through a successful and profitable licensing and merchandising program. 2
24 DOGS is very selective in the choice of its licensees and carefully controls and monitors
25 the quality of the licensed products. The intent of the licensing program is to build brand
26 equity on THE MOMMY HOOK trademark by licensing quality products, and
27 strengthening THE MOMMY HOOK experience for both core and non-traditional
28 customers.
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1 12. The Mommy Hook has been widely successful due to its unique design,
2 and has garnered a reputation as a high-quality, innovative and stylish product.
3 A. Plaintiffs Patent Rights
4 13. 2 DOGS has taken steps to protect its products and owns various United
5 States patents relating to its product designs. Relevant to this dispute, 2 DOGS owns all
6 right, title, and interest in, and has the right to sue and recover for past, present, and
7 future infringement of, United States Patent No. D613,583 (the 583 Patent), which
8 issued on April 13, 2010. A copy of the 583 Patent is attached as Exhibit A.
9 14. The 583 patent is entitled Carabiner, and claims the distinctive
10 ornamental design for a carabiner as shown in the Patent.
11 15. The 583 patent is presumed to be valid.
12 B. Plaintiffs Trademark Rights
13 16. 2 DOGS is also the owner of common law and statutory rights to THE
14 MOMMY HOOK trademark, including United States federal trademark Registration No.
15 3,306,126 for THE MOMMY HOOK (the Trademark). The Trademark covers goods
16 and services in Class 6, including Fasteners, namely, metal clips and metal hooks, for
17 use on strollers, shopping carts and other carrier structures. A true and accurate copy of
18 the Trademark registration is attached as Exhibit B.
19 17. As a result of continuous and long-standing promotion, substantial sales,
20 high quality, and consumer recognition, THE MOMMY HOOK has developed powerful
21 good will that others want to copy.
22 18. THE MOMMY HOOK trademark is presumed valid and is incontestable
23 pursuant to 15 U.S.C. 1065.
24 C. Defendants Infringing Activities
25 19. Without 2 DOGS authorization, Defendant has made, used, sold, and/or
26 offered to sell a product that is the same or substantially similar to the design claimed in
27 the 583 Patent (the Infringing Product), thus directly infringing the 583 Patent.
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1 20. On information and belief, Defendant also imports (or causes others to
2 import) the Infringing Product into the United States, further infringing the583 Patent.
3 21. According to Defendants website, Defendant is based in Canada, but has
4 partnered with fulfillment centers strategically placed in warehouses across the United
5 States. See https://toogli.com/pages/why-buy-from-us (last visited Aug. 8, 2017).
6 22. Defendant also boasts having thousands of customers, and that [a]ll of
7 our items are in stock & ready to ship immediately. Id. Defendant offers free shipping
8 throughout the United States, including into Arizona.
9 23. Upon information and belief, Defendant has also induced and continues to
10 induce acts by third parties that Defendant knows or should know constitute direct
11 infringement of the 583 Patent. Defendant actively induced infringement of the 583
12 Patent by designing its Infringing Product such that it infringes the 583 Patent and by
13 purposefully directing, promoting, encouraging, and causing the manufacture, sale,
14 advertisement for sale, use and/or importation into the United States of its Infringing
15 Product by third parties in ways that infringe the 583 Patent.
16 24. A side-by-side comparison of the patented design and Defendants
17 Infringing Product is shown below:
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Patented Design Infringing Product
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Case 2:17-cv-02725-DJH Document 1 Filed 08/11/17 Page 6 of 15
1 25. On its Amazon.com product page, Defendant compares the design of the
2 Infringing Product with that of Competing Brands Stroller Hook, and markets the
3 infringing design as being advantageous over other products having a non-infringing
4 design:
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16 26. Upon information and belief, Defendant knew or should have known of
17 Plaintiffs existing patent rights in the 583 Patent because that Patent has been published
18 since at least April 13, 2010. Moreover, the authentic Mommy Hook product is marked
19 with the 583 Patent number. Defendant was therefore aware or should have been aware
20 of Plaintiffs rights in the 583 patent.
21 27. Plaintiff also, through counsel, expressly informed Defendant of the 583
22 Patent on or about July 14, 2017, demanding, inter alia, that Defendant cease
23 infringement of the 583 Patent and confirm so in writing. Thus, Defendants violation of
24 Plaintiffs patent rights has been and continues to be willful.
25 28. Upon information and belief, Defendant also knew or should have known
26 of Plaintiffs trademark rights in THE MOMMY HOOK. The application for THE
27 MOMMY HOOK trademark published in July 24, 2007, and registration issued in
28 October 2007. On information and belief, Defendant also had notice of THE MOMMY
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1 HOOK trademark via display of the circle R on product packaging and other advertising
2 in accordance with 15 U.S.C. 1111.
3 29. Defendant is seeking to improperly trade off THE MOMMY HOOK name
4 and brand by advertising its infringing product as HOOKS FOR MOMMY and a HOOK
5 SET FOR MOMMY. For example, the following text appears on Defendants web page
6 for the Infringing Product:
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11 30. Defendant uses the terms MOMMY and HOOK in direct proximity to one
12 another despite there being no commercial need for Defendant to do so. On information
13 and belief, Defendant is seeking to trade off the well-known THE MOMMY HOOK
14 trademark and brand name.
15 31. Defendant was also expressly informed by Plaintiff, through counsel, of
16 Plaintiffs rights in THE MOMMY HOOK trademark on or about July 14, 2017. In that
17 correspondence, Plaintiff demanded, inter alia, that Defendant cease infringement of
18 THE MOMMY HOOK trademark. Defendants violation of Plaintiffs trademark rights
19 has been and continues to be willful.
20 32. By selling and importing into the United States its Infringing Product, and
21 by marketing that product as a hook for mommy for use on strollers, shopping carts and
22 other carrier structures, Defendant is infringing Plaintiffs patent and trademark rights,
23 diluting Plaintiffs trademark rights, and causing Plaintiff irreparable harm.
24 33. Defendants are also inducing others to infringe THE MOMMY HOOK
25 trademark by intentionally supplying the Infringing Product to, and by inducing and
26 encouraging others to advertise, promote and sell the Infringing Product, using the terms
27 MOMMY and HOOK in proximity to each other, knowing that such use infringes THE
28 MOMMY HOOK trademark.
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1 COUNT I
2 Direct Infringement of the 583 Patent
3 37. 2 DOGS repeats, realleges, and incorporates by reference the allegations set
4 forth in the preceding paragraphs as if set forth fully herein.
5 38. Upon information and belief, Defendants Infringing Product is covered by
6 the design set forth in claim 1 of the 583 Patent.
7 39. Defendant has sold in the United States, offered for sale in the United
8 States and imported into the United States, the Infringing Product. These acts constitute
9 direct infringement of the 583 patent.
10 40. As a direct and proximate result of these actions, Defendant has unlawfully
11 derived and will continue to derive, income, profits and goodwill from its infringing
12 activities.
13 41. 2 DOGS has been and will continue to be damaged irreparably by
14 Defendants direct infringement of the 583 patent. 2 DOGS has no adequate remedy at
15 law for these wrongs and injuries. The damage to 2 DOGS includes harm to its
16 intellectual property that money cannot compensate.
17 42. Defendants infringing conduct makes this an exceptional case under
18 35 U.S.C. 285, due in part to Defendants wanton disregard for Plaintiffs patent rights.
19 COUNT II
20 Induced Infringement of the 583 patent
21 43. 2 DOGS repeats, realleges, and incorporates by reference the allegations set
22 forth in the preceding paragraphs as if set forth fully herein.
23 44. Upon information and belief, Defendant has induced others to make, use,
24 sell, and offer for sale in the United States, and to import into the United States,
25 Defendants Infringing Product. Such third parties include online retailers and
26 distributors throughout the United States who sell, offer for sale, distribute and/or import
27 the Infringing Product in the United States.
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1 45. Upon information and belief, Defendant knew of the 583 Patent as
2 described above, and knew that third parties actions constitute infringement of the 583
3 Patent.
4 46. Upon information and belief, the actions of Defendant described above
5 have at all times relevant to this action been willful.
6 47. 2 DOGS has been and will continue to be damaged irreparably by
7 Defendants induced infringement the 583 Patent. 2 DOGS has no adequate remedy at
8 law for these wrongs and injuries. The damage to 2 DOGS includes harm to its
9 intellectual property that money cannot compensate.
10 48. Defendants infringing conduct makes this an exceptional case under
11 35 U.S.C. 285, due in part to Defendants wanton disregard for Plaintiffs patent rights.
12 COUNT III
13 Trademark Infringement Under the Lanham Act
14 49. 2 DOGS repeats, realleges, and incorporates by reference the allegations set
15 forth in the preceding paragraphs as if set forth fully herein.
16 50. Defendant has knowingly used and continues to use in commerce
17 advertising that is designed to, and likely to, cause consumer confusion with regard to
18 THE MOMMY HOOK trademark. Defendant has done so with the knowledge of, and
19 the intent to call to mind and create a likelihood of confusion with regard to, and/or trade
20 off the fame and goodwill associated with THE MOMMY HOOK product.
21 51. 2 DOGS has given notice of its registrations and claimed trademark rights
22 pursuant to section 29 of the Lanham Act, 15 U.S.C. 1111. Nevertheless, Defendant
23 continues to infringe Plaintiffs registered trademark.
24 52. Defendants actions (A) constitute trademark infringement, (B) are likely to
25 confuse, mislead, or deceive customers, purchasers, and members of the general public as
26 to the origin, source, sponsorship, or affiliation of Defendant and 2 DOGS and/or
27 Defendants products and 2 DOGS products, and (C) is likely to cause such people to
28 believe in error that Defendant's products have been authorized, sponsored, approved,
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Case 2:17-cv-02725-DJH Document 1 Filed 08/11/17 Page 11 of 15
1 endorsed, or licensed by 2 DOGS, or that the Defendant is in some way affiliated with 2
2 DOGS.
3 53. 2 DOGS has no control over the nature and quality of the goods or services
4 Defendant offers, and 2 DOGS reputation and goodwill will be damaged and the value
5 of THE MOMMY HOOK trademark jeopardized by Defendants continued
6 infringement of Plaintiffs trademark. Because of the likelihood of confusion between
7 the Infringing Product and The Mommy Hook product, any defects, objections, or
8 faults found with Defendants products will negatively reflect upon and injure the
9 reputation that The Mommy Hook product has gained. As such, Defendant is liable to
10 2 DOGS for infringement of its registered mark under 15 U.S.C. 1114.
11 54. Defendants acts alleged above have caused, and if not enjoined will
12 continue to cause, irreparable and continuing harm to 2 DOGS trademarks, business,
13 reputation, and goodwill. 2 DOGS has no adequate remedy at law as monetary damages
14 are inadequate to compensate 2 DOGS for the injuries caused by Defendant.
15 55. As a direct and proximate result of Defendants conduct, 2 DOGS has
16 suffered damages to the THE MOMMY HOOK trademark, and other damages in an
17 amount to be proved at trial.
18 56. Defendants infringement of 2 DOGS registered trademark is deliberate,
19 willful, fraudulent and without any extenuating circumstances, and constitutes a knowing
20 use of Plaintiffs trademark, and an exceptional case within the meaning of 15 U.S.C.
21 1117(a).
22 57. 2 DOGS is entitled to injunctive relief, and to recover Defendants profits,
23 actual damages, enhanced profits and damages, costs, and reasonable attorney fees under
24 15 U.S.C. 1114, 1116, and 1117.
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Case 2:17-cv-02725-DJH Document 1 Filed 08/11/17 Page 12 of 15
1 COUNT IV
2 False Designation of Origin/Unfair Competition
3 Under Section 43(a) of the Lanham Act
4 58. 2 DOGS repeats, realleges, and incorporates by reference the allegations set
5 forth in the preceding paragraphs as if set forth fully herein.
6 59. Defendants aforementioned acts constitute direct and/or indirect trademark
7 infringement, false designation of origin, passing off and unfair competition in violation
8 of Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a), et seq.
9 60. THE MOMMY HOOK trademark has been used in commerce for over a
10 decade, is federally registered, is legally incontestable, and is entitled to protection under
11 both federal and common law. Through that extensive and continuous use, THE
12 MOMMY HOOK trademark has become a well-known indicator of the origin and quality
13 of The Mommy Hook product.
14 61. Defendants use of colorable imitations of THE MOMMY HOOK
15 trademark constitutes a false designation of origin that is likely to cause consumer
16 confusion, mistake, or deception as to the origin, sponsorship, or approval of the
17 Infringing Product by creating the false and misleading impression that the Infringing
18 Product is manufactured by, authorized by, or otherwise associated with 2 DOGS.
19 62. Defendants use of colorable imitations of THE MOMMY HOOK
20 trademark has caused, and unless enjoined, will continue to cause substantial and
21 irreparable injury to 2 DOGS for which 2 DOGS has no adequate remedy at law,
22 including at least substantial and irreparable injury to the goodwill and reputation for
23 quality associated with 2 DOGS trademark rights.
24 63. On information and belief, Defendants use of colorable imitations of THE
25 MOMMY HOOK trademark has been intentional and willful. Defendants bad faith is
26 evidenced at least by the similarity of the Infringing Product to the authentic Mommy
27 Hook product and THE MOMMY HOOK trademark, as well as by Defendants failure
28 to abide by Plaintiffs infringement notices.
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Case 2:17-cv-02725-DJH Document 1-1 Filed 08/11/17 Page 1 of 9
EXHIBIT A
Case 2:17-cv-02725-DJH Document 1-1 Filed 08/11/17 Page 2 of 9
11111111111111111111111111111111111i11111111111111111111111111111
US D613,583 S
Page 2
FIG.1
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FIG.2
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FIG.3
FIG.6
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FIG.4 FIG.5
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EXHIBIT B
Case 2:17-cv-02725-DJH Document 1-1 Filed 08/11/17 Page 9 of 9
Int. Cl.: 6
Prior U.S. Cls.: 2, 12, 13, 14, 23, 25 and 50
Reg. No. 3,306,126
United States Patent and Trademark Office Registered Oct. 9, 2007
TRADEMARK
PRINCIPAL REGISTER
The completed cover sheet must be printed directly to PDF and filed as an
attachment to the Complaint or Notice of Removal.
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Case 2:17-cv-02725-DJH Document 1-2 Filed 08/11/17 Page 2 of 2
Date: 08/11/2017
If any of this information is incorrect, please go back to the Civil Cover Sheet Input form using the Back button in
your browser and change it. Once correct, save this form as a PDF and include it as an attachment to your case
opening documents.
Revised: 01/2014
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