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Blue Spring v. Schedule A - Complaint
Blue Spring v. Schedule A - Complaint
Plaintiff,
v.
Defendants.
COMPLAINT
Plaintiff Blue Spring Partners (“Plaintiff”), hereby alleges as follows against the
“Defendants”):
INTRODUCTION
1. This action has been filed by Plaintiff to combat online counterfeiters who
trade upon Plaintiff’s reputation and goodwill by selling and/or offering for sale products
in connection with Plaintiff’s FIN FUN trademarks, which are covered by U.S.
Trademark Registration Nos. 4,913,258 and 4,949,791 (the “FIN FUN Trademarks”);
FIN FUN patents, which are covered by at least U.S. Patent Registration Nos.
D9,162,110 B1 and D979,694 S (the “FIN FUN Patents”); and copyrights, which are
covered by at least U.S. Copyright Office Registration Nos. VAu 1-267-344, VAu 1-320-
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“FIN FUN Copyright Registrations”). The FIN FUN Trademarks, FIN FUN Patents, and
the FIN FUN Copyright Registrations, which cover Plaintiff’s artwork and designs for
mermaid tails and fins, are valid, subsisting, and in full force and effect. True and correct
copies of the federal trademark registration certificates for the FIN FUN Trademarks and
FIN FUN Patents are attached hereto as Exhibit 1. True and correct copies of the federal
copyright registration certificates for the FIN FUN Copyright Registrations are attached
hereto as Exhibit 2. The Defendants likewise advertise, market and/or sell their
reference to the same name and design as the Plaintiff’s genuine products and/or by
reference to an identical or substantially identical name and mark as the FIN FUN
stores operating under the Defendant Domain Names and/or the Online Marketplace
Stores”). The Defendants design the Defendant Internet Stores to appear to be selling
genuine Plaintiff products, while selling inferior imitations of Plaintiff’s products. The
Defendant Internet Stores share unique identifiers, such as design elements and similarities
of the counterfeit products offered for sale, establishing a logical relationship between them
and suggesting that Defendants’ illegal operations arise out of the same transaction,
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by going to great lengths to conceal both their identities and the full scope and interworking
of their illegal counterfeiting operation. Plaintiff is forced to file this action to combat
Defendants’ counterfeiting of the FIN FUN Trademarks, FIN FUN Patents, and Plaintiff’s
FUN products over the Internet. Plaintiff has been and continues to be irreparably damaged
through consumer confusion, dilution, and tarnishment of its valuable trademarks and
copyrights and goodwill as a result of Defendants’ actions and seeks injunctive and
monetary relief.
3. This Court has personal jurisdiction over each Defendant, in that each
Defendant conducts significant business in Illinois and in this Judicial District, and the
acts and events giving rise to this lawsuit of which each Defendant stands accused were
undertaken in Illinois and in this Judicial District. In addition, each Defendant has offered
4. This Court has original subject matter jurisdiction over the patent
infringement claim arising under the patent laws of the United States pursuant to 35
5. This Court has original subject matter jurisdiction over the trademark
infringement and false designation of origin claims in this action pursuant to provisions
of the Lanham Act, 15 U.S.C. § 1051 et seq., 28 U.S.C. § 1338(a)–(b), and 28 U.S.C. §
1331.
6. This Court has original subject matter jurisdiction over the copyright
claim pursuant to the Copyright Laws of the United States, 17 U.S.C. § 101 et seq., 28
7. This Court has jurisdiction over the unfair deceptive trade practices claim
in this action that arise under the laws of the State of Illinois pursuant to 28 U.S.C. §
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1367(a) because the state law claims are so related to the federal claims that they form
part of the same case or controversy and derive from a common nucleus of operative
facts.
8. Venue is proper in this Court pursuant to 28 U.S.C. § 1391, and this Court
may properly exercise personal jurisdiction over Defendants, because each of the
Defendants directly targets consumers in the United States, including Illinois, through at
least Defendant Internet Stores. Specifically, Defendants are reaching out to do business
with Illinois residents by operating one or more commercial, interactive Internet Stores
through which Illinois residents can purchase unauthorized and illegal products
embodying Plaintiff’s trademarks and copyrights, that are marketed by reference to the
same names and marks Plaintiff’s genuine FIN FUN products are marketed, one name
and mark being for example, “Fin Fun”. Each of the Defendants has targeted sales from
Illinois residents by operating online stores that offer shipping to the United States,
including Illinois, accept payment in U.S. dollars, and, on information and belief, has
tortious acts in Illinois, is engaging in interstate commerce, and has wrongfully caused
Plaintiff substantial injury in the State of Illinois. Venue is proper in this Court pursuant
judicial district, do substantial business in the judicial district, have registered agents in
THE PLAINTIFF
9. Plaintiff Blue Spring Partners, LLC t/as Fin Fun (“Plaintiff”) is a limited
liability company organized under the laws of Idaho with offices in Idaho Falls, ID and
is the owner of the FIN FUN Trademarks and FIN FUN Copyright Registrations, with
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10. Plaintiff is the owner and lawful assignee of all right, title, and interest in
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and first published the original FIN FUN product, originally published on eBay and
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instantly attracted substantial international media attention and success. Shortly after, in
early 2012, Plaintiff began selling the FIN FUN products on its website
for purchase on Amazon. In November 2016, Plaintiff began applying for the
registrations of the now federally registered FIN FUN Copyright Registrations in respect
of the copyrights embodied by the many FIN FUN products (the “FIN FUN Products”).
The effective date of the first FIN FUN Copyright Registration is November 2, 2016.
Exemplary copies of the FIN FUN Products were deposited with the United States
of genuine FIN FUN products in the United States, which include the following:
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13. Since at least 2015, the FIN FUN Trademarks are and have been the
subject of substantial and continuous marketing and promotion by Plaintiff. Plaintiff has
and continues to widely market and promote the FIN FUN Trademarks in the industry
and to consumers. Plaintiff’s promotional efforts include—by way of example but not
limitation—substantial print media, the FIN FUN Products’ website and social media
14. The FIN FUN Trademarks are distinctive and identify the merchandise as
goods from Plaintiff. The FIN FUN Trademarks are valid and subsisting and in full force
and effect, and constitute conclusive evidence of Plaintiff’s exclusive right to use the FIN
15. The FIN FUN Trademarks each qualify as a famous mark, as that term is
used in 15 U.S.C. §1125 (c)(1), and have been continuously used and never abandoned.
16. Plaintiff has expended substantial time, money, and other resources in
developing, advertising, and otherwise promoting the FIN FUN Products. As a result,
products bearing the name and mark “FIN FUN” are widely recognized and exclusively
associated by consumers, the public, and the trade as being products sourced from
Plaintiff.
17. Plaintiff also owns all exclusive rights, including without limitation, the
rights to reproduce the copyrighted works in copies, to prepare derivative works based
upon the copyrighted works, and to distribute copies of the copyrighted works to the
copyrights for the FIN FUN Products as the owner of the FIN FUN copyrights, including
without limitation copyrights covered by the FIN FUN Copyright Registrations, as set
out above.
THE DEFENDANTS
18. Defendants are individuals and business entities who, upon information
and belief, reside mainly in the People’s Republic of China or other foreign jurisdictions.
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Defendants conduct business throughout the United States, including within Illinois and
in this Judicial District, through the operation of the fully interactive commercial
websites and online marketplaces operating under the Defendant Internet Stores. Each
Defendant targets the United States, including Illinois, and has offered to sell and, on
information and belief, has sold and continues to sell counterfeit FIN FUN products to
consumers within the United States, including Illinois and in this Judicial District.
19. The success of the FIN FUN brand has resulted in its counterfeiting.
Plaintiff has identified numerous domain names linked to fully interactive websites and
Defendant Internet Stores, which were offering for sale, selling, and importing
counterfeit FIN FUN products to consumers in this Judicial District and throughout the
United States. Defendants have persisted in creating the Defendant Internet Stores.
Internet websites like the Defendant Internet Stores are estimated to receive tens of
millions of visits per year and to generate over $135 billion in annual online sales.
According to an intellectual property rights seizures statistics report issued by the United
goods seized by the U.S. government in fiscal year 2020 was over $1.3 billion. Internet
websites like the Defendant Internet Stores are also estimated to contribute to tens of
thousands of lost jobs for legitimate businesses and broader economic damages such as
designing the Defendant Internet Stores so that they appear to unknowing consumers to
be authorized online retailers, outlet stores, or wholesalers selling genuine FIN FUN
products. Many of the Defendant Internet Stores look sophisticated and accept payment
in U.S. dollars via credit cards, Western Union, and PayPal. Defendant Internet Stores
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often include images and design elements that make it very difficult for consumers to
perpetuate the illusion of legitimacy by offering “live 24/7” customer service and using
indicia of authenticity and security that consumers have come to associate with
21. Plaintiff has the exclusive right to use the FIN FUN Trademarks in
interstate commerce, and Plaintiff’s use has been exclusive since it first adopted the FIN
described in this Complaint. Plaintiff is the official source of FIN FUN Products in the
United States, and Plaintiff has not licensed or authorized Defendants to use the FIN
FUN Trademarks, FIN FUN Patents, or the FIN FUN Copyright Registrations, and none
consumers by using the FIN FUN Trademarks, FIN FUN Patents, and/or the FIN FUN
products themselves.
consumers by using FIN FUN Trademarks without authorization within the content, text,
and/or meta tags of their websites to attract various search engines crawling the Internet
looking for websites relevant to consumer searches for FIN FUN Products. Additionally,
upon information and belief, Defendants use other unauthorized search engine
optimization (“SEO”) tactics and social media spamming so that the Defendant Internet
Stores listings show up at or near the top of relevant search results and misdirect
consumers searching for genuine FIN FUN Products. Further, Defendants utilize similar
illegitimate SEO tactics to propel new domain names to the top of search results after
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others are shut down. As such, Plaintiff also seeks to disable Defendant Internet Stores
owned by Defendants that are the means by which the Defendants could continue to sell
identities and often use multiple fictitious names and addresses to register and operate
their massive network of Defendant Internet Stores. For example, it is common practice
for counterfeiters to register their domain names with incomplete information, randomly
typed letters, or omitted cities or states, as Defendants here have done. And many
Defendant Domain Names use privacy services that conceal the owners’ identity and
contact information. On personal knowledge and belief, Defendants regularly create new
websites and Online Marketplace Accounts on various platforms using the identities
listed in Schedule A to the Complaint, as well as other unknown fictitious names and
addresses. Such Defendant Internet Store registration patterns are one of many common
tactics used by the Defendants to conceal their identities, the full scope and interworking
25. On personal knowledge and belief, even though Defendants operate under
multiple fictitious names, there are numerous similarities among the Defendant Internet
Stores. For example, some of the Defendant websites have virtually identical layouts,
even though different aliases were used to register the respective domain names. In
addition, the counterfeit FIN FUN products for sale in the Defendant Internet Stores bear
similarities and indicia of being related to one another, suggesting that the counterfeit
FIN FUN products were manufactured by and come from a common source and that,
upon information and belief, Defendants are interrelated. The Defendant Internet Stores
also include other notable common features, including use of the same domain name
registration patterns, unique shopping cart platforms, accepted payment methods, check-
out methods, meta data, illegitimate SEO tactics, HTML user-defined variables, domain
redirection, lack of contact information, identically or similarly priced items and volume
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sales discounts, similar hosting services, similar name servers, and the use of the same
this case and defendants in other similar cases against online counterfeiters use a variety
of other common tactics to evade enforcement efforts. For example, counterfeiters like
Defendants will often register new domain names or Online Marketplace Accounts under
new aliases once they receive notice of a lawsuit. 1 Counterfeiters also often move
website hosting to rogue servers located outside the United States once notice of a lawsuit
is received. Rogue servers are notorious for ignoring take down demands sent by brand
owners. 2 Counterfeiters also typically ship products in small quantities via international
mail to minimize detection by U.S. Customs and Border Protection. A 2012 U.S.
Customs and Border Protection report on seizure statistics indicated that the Internet has
fueled “explosive growth” in the number of small packages of counterfeit goods shipped
credit card merchant accounts and PayPal accounts behind layers of payment gateways
so that they can continue operation in spite of Plaintiff’s enforcement efforts. On personal
knowledge and belief, Defendants maintain off-shore bank accounts and regularly move
funds from their PayPal accounts to off-shore bank accounts outside the jurisdiction of
1
https://www.ice.gov/news/releases/buyers-beware-ice-hsi-and-cbp-boston-warn-
consumers-about-counterfeit-goods-during (counterfeiters are “very adept at setting up
online stores to lure the public into thinking they are purchasing legitimate good on
legitimate websites”) (last visited Nov. 17, 2022).
2
While discussed in the context of false pharma supply chains, rogue internet servers
and sellers are a well-known tactic that have even been covered in congressional
committee hearings. https://www.govinfo.gov/content/pkg/CHRG-
113hhrg88828/html/CHRG-113hhrg88828.htm (last visited Nov. 17, 2022).
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this Court. Indeed, analysis of PayPal transaction logs from previous similar cases
indicates that offshore counterfeiters regularly move funds from U.S.-based PayPal
knowingly and willfully used and continue to use the FIN FUN Trademarks, FIN FUN
Patents, and the FIN FUN Copyright Registrations in connection with the advertisement,
distribution, offering for sale, and sale of counterfeit FIN FUN products into the United
States and Illinois over the Internet, and by reference to the same name and mark as the
original FIN FUN Product, is marketed and/or sold by, being “Fin Fun”. Each Defendant
Internet Store offers shipping to the United States, including Illinois and each Defendant
has offered to sell counterfeit FIN FUN products into the United States, including Illinois.
29. Defendants’ use of the FIN FUN Trademarks, FIN FUN Patents, and/or
the FIN FUN Copyright Registrations in connection with the advertising, distribution,
offering for sale, and sale of counterfeit FIN FUN products, including the sale of
counterfeit FIN FUN products into Illinois, is likely to cause and has caused confusion,
mistake, and deception by and among consumers and is irreparably harming Plaintiff.
COUNT I
TRADEMARK INFRINGEMENT AND COUNTERFEITING (15 U.S.C. § 1114)
[Against Defendants Designated in Schedule A]
Trademarks in connection with the sale, offering for sale, distribution, and/or advertising
of infringing goods. The FIN FUN Trademarks are highly distinctive marks. Consumers
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have come to expect the highest quality from Plaintiff’s products provided under the FIN
FUN Trademarks.
advertised, and are still selling, offering to sell, marketing, distributing, and advertising
products in connection with the FIN FUN Trademarks without Plaintiff’s permission.
33. Plaintiff is the registered owner of the FIN FUN Trademarks and official
source of FIN FUN Products. The United States Registrations for the FIN FUN
Trademarks (Exhibit 1) are in full force and effect. Upon information and belief,
Defendants have knowledge of Plaintiff’s rights in the FIN FUN Trademarks and are
willfully infringing and intentionally using counterfeits of the FIN FUN Trademarks.
Defendants’ willful, intentional, and unauthorized use of the FIN FUN Trademarks is
likely to cause and is causing confusion, mistake, and deception as to the origin and
35. The injuries and damages sustained by Plaintiff have been directly and
36. Plaintiff has no adequate remedy at law, and, if Defendants’ actions are
not enjoined, Plaintiff will continue to suffer irreparable harm to its reputation and the
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COUNT II
FALSE DESIGNATION OF ORIGIN (15 U.S.C. § 1125(A))
[Against Defendants Designated in Schedule A]
counterfeit FIN FUN products embodying the FIN FUN Trademarks and/or the FIN FUN
and deception among the general public as to the affiliation, connection, or association
with Plaintiff or the origin, sponsorship, or approval of Defendants’ counterfeit FIN FUN
Products by Plaintiff.
39. By using the FIN FUN Trademarks in connection with the sale of
counterfeit FIN FUN products, embodying the FIN FUN Copyright Registrations,
misrepresentation of fact as to the origin and/or sponsorship of the counterfeit FIN FUN
41. Plaintiff has no adequate remedy at law, and, if Defendants’ actions are
not enjoined, Plaintiff will continue to suffer irreparable harm to its reputation and the
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COUNT III
PATENT INFRINGEMENT (35 U.S.C. § 271)
[Against Defendants Designated in Schedule A]
42. Plaintiff repeats and incorporates by reference herein its allegations
43. Defendants are and have been making, using, selling, offering for sale,
and/or importing into the United States for subsequent sale or use, without authority,
Counterfeit Products that infringe directly and/or indirectly the FIN FUN Patents.
Patents and images of one of Defendants’ Counterfeit Products sold on two Defendant
Internet Stores.
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compared to
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46. Defendants have infringed the Plaintiff’s FINFUN Patent through the
aforesaid acts and will continue to do so unless enjoined by this Court. Defendants’
wrongful conduct has caused Plaintiff to suffer irreparable harm resulting from the loss
of its lawful patent rights to exclude others from making, using, selling, offering for sale,
and importing the patented invention. Plaintiff is entitled to injunctive relief pursuant to
35 U.S.C. § 283.
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COUNT IV
COPYRIGHT INFRINGEMENT (17 U.S.C. § 101, et seq.)
[Against Defendants Designated in Schedule A]
48. Plaintiff repeats and incorporates by reference herein its allegations
49. Plaintiff owns all exclusive rights, including without limitation the rights
to reproduce the copyrighted work in copies, to prepare derivative works based upon the
copyrighted work, and to distribute copies of the copyrighted work to the public by sale
the FIN FUN Products as either the owner and/or licensee of the FIN FUN copyrights,
Registrations.
advertised, and are still selling, offering to sell, marketing, distributing, and advertising
products in connection with the FIN FUN copyrights without Plaintiff’s permission.
51. Defendants had access to the FIN FUN Products incorporating Plaintiff’s
52. Upon information and belief, Defendants have directly copied Plaintiff’s
Plaintiff’s copyrights for the FIN FUN Products in the Defendant Internet Stores are
strikingly similar, or at the very least substantially similar, to Plaintiff’s copyrights for
the FIN FUN Products and constitute unauthorized copying, reproduction, distribution,
creation of a derivative work, and/or public display of Plaintiff’s copyrights for the FIN
FUN Products. As just one example, Defendants deceive unknowing consumers by using
the FIN FUN copyrights without authorization within the product descriptions of their
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Genuine FIN FUN Product the subject of the federally registered FIN FUN
compared to
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deliberate, and committed with prior notice and knowledge of Plaintiff’s copyrights.
indifference to the rights of Plaintiff made and distributed in the United States, including
this District, caused to be made and distributed in the United States, including this
District, and aided, abetted, contributed to, and participated in the unauthorized making
and distribution of the infringing Defendant Online Stores. Each Defendant either knew,
or should have reasonably known, that Plaintiff’s FIN FUN Products were protected by
have realized and continue to realize profits and other benefits rightfully belonging to
profits made by the Defendants from their wrongful acts, pursuant to 17 U.S.C. § 504(b).
Each Defendant should be required to account for all gains, profits, and advantages
57. In the alternative, Plaintiff is entitled to, and may elect to choose statutory
58. Plaintiff is entitled to, and may elect to choose, injunctive relief under 17
U.S.C. § 502, enjoining any use or exploitation by Defendants of their infringing work
and for an order under 17 U.S.C. § 503 that any of Defendants’ infringing products be
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59. Plaintiff seeks and is also entitled to recover reasonable attorneys’ fees
60. Plaintiff has no adequate remedy at law, and, if Defendants’ actions are
not enjoined, Plaintiff will continue to suffer irreparable harm to their reputation and the
COUNT IV
VIOLATION OF ILLINOIS UNIFORM DECEPTIVE TRADE PRACTICES ACT
(815 ILCS § 510/1, et seq.)
[Against Defendants Designated in Schedule A]
61. Plaintiff repeats and incorporates by reference herein its allegations
62. Defendants have engaged in acts violating Illinois law including, but not
limited to, passing off their counterfeit FIN FUN Products as those of Plaintiff, causing
association with genuine FIN FUN Products, representing that their products have
Plaintiff’s approval when they do not, and engaging in other conduct which creates a
Illinois Uniform Deceptive Trade Practices Act, 815 ILCS § 510/1, et seq.
64. Plaintiff has no adequate remedy at law, and Defendants’ conduct has
caused Plaintiff to suffer damage to their reputation and goodwill. Unless enjoined by
the Court, Plaintiff will suffer future irreparable harm as a direct result of Defendants’
unlawful activities.
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WHEREFORE, Plaintiff prays for judgment against Defendants and each of them
as follows:
attorneys, confederates, and all persons acting for, with, by, through, under, or in active
concert with them be temporarily, preliminarily, and permanently enjoined and restrained
from:
Patents;
offering for sale, or sale of any product that is not a genuine FIN
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by Plaintiff for sale under the FIN FUN Trademarks, FIN FUN
goodwill;
including the FIN FUN Trademarks, FIN FUN Patents, or the FIN
products; and
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offering for sale, or sale of any product bearing the FIN FUN
Registrations.
2. That Defendants, within fourteen (14) days after service of judgment with
notice of entry thereof upon them, be required to file with the Court and serve upon
Plaintiff a written report under oath setting forth in detail the manner and form in which
Defendants and those with notice of the injunction, including any online marketplaces
YouTube, LinkedIn, Twitter, Internet search engines such as Google, Bing and Yahoo,
web hosts for the Defendant Internet Stores, and domain name registrars, shall:
Schedule A;
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4. That Defendants account for and pay to Plaintiff all profits realized by
Defendants by reason of Defendants’ unlawful acts herein alleged, and that the amount
of damages for infringement of the FIN FUN Trademarks be increased by a sum not
15 U.S.C. § 1117(c) of not less than $1,000 and not more than $2,000,000 for each and
every use of the FIN FUN Trademarks and statutory damages of not less than $750 and
not more than $30,000 for each and every infringement of Plaintiff’s copyrights pursuant
to 17 U.S.C. § 504(c), which should be enhanced to a sum of not more than $150,000 by
Defendants that are adequate to compensate Plaintiff for Defendants’ infringement of the
FIN FUN Patents, but in no event less than a reasonable royalty for the use made of the
invention by the Defendants, together with interest and costs, pursuant to 35 U.S.C. §
284;
7. That the amount of damages awarded to Plaintiff to compensate Plaintiff
for infringement of Plaintiff’s FIN FUN Patents be increased by three times the amount
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35 U.S.C. § 289;
9. That Plaintiff be awarded its reasonable attorneys’ fees and costs; and
10. Award any and all other relief that this Court deems just and proper.
Genesis Shin
2029 Century Park East, Suite 1520
Los Angeles, CA 90067
(213) 995-5719
[email protected]
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