telebrands corp v martfive - dj complaint

7/28/2019 Telebrands Corp v Martfive - DJ Complaint

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Jeffrey L. Snow (JS 5396)

Cooper & Dunham LLP

30 Rockefeller PlazaNew York, New York 10112

Tel: (212) 278-0400

Fax: (212) 391-0525

Of Counsel:

Peter D. Murray

Robert T. MaldonadoEric M. Eisenberg

Cooper & Dunham LLP

30 Rockefeller Plaza

New York, New York 10112Tel: (212) 278-0400

Fax: (212) 391-0525

Attorneys for Plaintiff Telebrands Corp.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

TELEBRANDS CORP.,

Plaintiff,

v.

MARTFIVE, LLC AND CHARLES M.

HENGEL,

Defendants.

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Civil Action No. __________

ECF Case

JURY TRIAL DEMANDED

COMPLAINT

Plaintiff, Telebrands Corp. (Telebrands), by its counsel, for its Complaint against

Defendants martFIVE, LLC (martFIVE)and Charles M. Hengel (Hengel) states as follows:

Case 2:33-av-00001 Document 18306 Filed 05/29/13 Page 1 of 16 PageID: 439061Case 2:13-cv-03374-JLL-MAH Document 1 Filed 05/29/13 Page 1 of 16 PageID: 1


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INTRODUCTION

This is an action for a declaratory judgment regarding trademark, trade dress, copyright

and patent rights allegedly owned by Defendants which purport to cover Defendants Stuffies

product and Hurrycane product. In particular, Telebrands is seeking a declaratory judgment

that its POCKET PALS product and TRUSTY CANE product do not infringe any trademark,

trade dress, copyright or patent rights owned by Defendants. Telebrands is also seeking a

declaratory judgment that the claim of U.S. Design Patent No. D681,744 is invalid for failing to

comply with the requirements of 35 U.S.C. 101, 102, 103 and/or 112.

NATURE OF THE ACTION

1. Telebrands seeks a declaratory judgment that a declaratory judgment that itsPOCKET PALS product and TRUSTY CANE product do not infringe any trademark, trade

dress, copyright or patent rights owned by Defendants.

2. Telebrands also seeks a declaratory judgment that the claim of U.S. Design PatentNo. D681,744 is invalid.

THE PARTIES

3. Telebrands is a New Jersey corporation with its headquarters located at 79 TwoBridges Road, Fairfield, New Jersey 07004, in this Judicial District.

4. On information and belief, Defendant martFIVE, LLC is a limited liabilitycompany organized and existing under the laws of the State of Minnesota, and having a place of

business at 110 Cheshire Lane, Suite 200, Minneapolis, Minnesota 55305. On information and



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belief, martFIVE conducts business throughout the United States, including in the State of New

Jersey.

5. On information and belief, Defendant Charles M. Hengel is an individual and aprincipal of Defendant martFIVE, LLC, and resides at 3005 Maplewood Road, Wayzata, MN

55391-2642. On information and belief, Hengel conducts business throughout the United States,

including in the State of New Jersey, through martFIVE, and has actively and consciously

directed martFIVEs actions described herein.

6. On information and belief, each of Defendants martFIVE and Hengel was,relative to the acts herein alleged, the agent of the other, and each was acting within the scope,

purpose, and authority of that agency and with the knowledge, permission and consent of the

other.

7. On information and belief, there has existed such a unity of interest betweenmartFIVE and Hengel that any individuality and separateness of martFIVE and Hengel has

ceased, such that each is the agent and alter-ego of the other in the acts hereinafter alleged.

8. On information and belief, Defendants actions and statements described in thisComplaint were made at each others direction and/or in concert or participation with each other.

9. On information and belief, Defendants actions and statements described in thisComplaint were made as agents of one another, and foreach others benefit.

JURISDICTION AND VENUE

10. This Court has federal question jurisdiction because this action arises under theTrademark Laws of the United States, 15 U.S.C. 1114 et seq., the Patent Laws of the United



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States, 35 U.S.C. 1 et seq., the Copyright Laws of the United States, 17 U.S.C. 501 et seq.,

and under the Federal Declaratory Judgment Act, 28 U.S.C. 2201 and 2202. The Court has

subject matter jurisdiction over this action pursuant to 28 U.S.C. 1331, 1338(a), 2201 and

2202.

11. Defendants are present in the State of New Jersey, and this Court has personaljurisdiction over them, at a minimum, because they sell and/or offer to sell merchandise,

including the Stuffies product and Hurrycane product, to customers in New Jersey and/or

have licensed others to sell and/or offer to sell merchandise, including the Stuffies product and

Hurrycane product, to customers in New Jersey.

12. This Court also has personal jurisdiction over Defendants because on informationand belief, Defendants have sufficient contacts with this Judicial District and/or Defendants

regularly conduct business within this Judicial District. Upon information and belief, Defendants

directly and/or through their agents distribute, offer for sale or license, sell or license and/or

advertise their products and services within the State of New Jersey and this Judicial District,

and/or have purposefully availed themselves of the privileges and benefits of the laws of the

State of New Jersey.

13. In addition, Defendants have sent a cease and desist letter dated May 20, 2013 toTelebrands in the State of New Jersey, and Hengel has made at least one telephone call to

Telebrands President, in the State of New Jersey, concerning the subject matter of this action.

These acts, singularly and together, have created a substantial controversy between the parties of

sufficient immediacy and reality to warrant declaratory relief.

14. Venue is proper in this Judicial District pursuant to 28 U.S.C. 1391(b) and (c).



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FACTS

15. Telebrands is a direct marketing company and is engaged in the business ofmarketing and selling a wide variety of consumer products in this Judicial District and elsewhere

through direct response advertising, catalogue, mail order, and Internet sales, and through

national retail stores. Telebrands is a recognized leader in the direct response television

marketing industry.

16. For over twenty-five years, Telebrands has been a leading developer and marketerof consumer products. Telebrands is widely known through the retail industry for the manner in

which it effectively drives retail sells through its nationwide advertising programs. For many

years, Telebrands has cultivated relationships with a wide variety of wholesalers, marketers,

distributors, sellers, and retailers including, for example, large retail chain stores, catalogues, and

Internet sales websites.

17. One product that Telebrands is currently test-marketing nationwide through directresponse advertising is a plush toy marketed under the trademark POCKET PALS. Telebrands

plans to sell the POCKET PALS product through direct response marketing, national retail

outlets and mail-order and catalogue sales.

18. Another product that Telebrands is currently test-marketing nationwide throughdirect response advertising is a collapsible cane marketed under the trademark TRUSTY CANE.

Telebrands plans to sell the TRUSTY CANE product through direct response marketing,

national retail outlets and mail-order and catalogue sales.

19. United States Design Patent No. D681,744, entitled Plush Toy, issued May 7,2013 (the D744 patent). A copy of the D744 patent is attached as Exhibit A.



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20. Hengel is the first named inventor of the D744 patent.21. On information and belief, martFIVE is the assignee of all right, title and interest

in the D744 patent.

22. Defendants market and sell a plush toy under the trademark Stuffies.23. Defendants market and sell a collapsible cane under the trademark Hurrycane.24. On information and belief, martFIVE is the owner of U.S. Trademark Registration

No. 4,286,271 for the mark STUFFIES, which was registered on the Principal Register of the

U.S. Patent and Trademark Office on February 5, 2013. A copy of this registration certificate is

attached as Exhibit B.

25. On information and belief, martFIVE is the owner of U.S. Trademark RegistrationNo. 4,286,272 for the mark ITS WHATS INSIDE THAT COUNTS!, which was registered on

the Principal Register of the U.S. Patent and Trademark Office on February 5, 2013. A copy of

this registration certificate is attached as Exhibit C.

26. On information and belief, martFIVE is the owner of U.S. Trademark RegistrationNo. 4,243,464 for the mark HURRYCANE, which was registered on the Principal Register of

the U.S. Patent and Trademark Office on November 13, 2012. A copy of this registration

certificate is attached as Exhibit D.

27. On information and belief, martFIVE is the owner of U.S. Trademark RegistrationNo. 4,286,043 for the mark THEHURRYCANE.COM, which was registered on the Principal

Register of the U.S. Patent and Trademark Office on February 5, 2013. A copy of this

registration certificate is attached as Exhibit E.



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28. On information and belief, martFIVE is the owner of U.S. Trademark RegistrationNo. 4,191,792 for the mark HURRYCANE THE ALL-TERRAIN CANE & Design, which was

registered on the Principal Register of the U.S. Patent and Trademark Office on August 14, 2012.

A copy of this registration certificate is attached as Exhibit F.

29. On information and belief, Defendants own U.S. Copyright Registrations which,according to Defendants, cover several variations of its Stuffies line of products and its

Stuffies advertising campaigns, including its video commercials, broadcast on television and

internet outlets, as well as its webpage content (hereafter Stuffies Copyrights).

30.

On information and belief, Defendants own U.S. Copyright Registrations which,

according to Defendants, cover its HURRYCANE advertising campaigns, including video

commercials and website content (hereafter Hurrycane Copyrights).

31. On information and belief, Defendants claim to own trade dress rights in theirStuffies product and/or Hurrycane product and/or marketing campaigns relating to such

products.

32. On or about May 20, 2013, Defendants attorneys sent a cease and desist letter, inwhich Defendants alleged that Telebrands products and marketing campaigns promoting them

are infringements of our clients copyright, trademark, trade dress and patent protected

products. Attached as Exhibit G is a copy of the cease and desist letter (without exhibits).

33. There is a substantial controversy between Telebrands and Defendants.34. The controversy is sufficiently immediate and real, and Defendants have

threatened to commence immediate legal action against Telebrands, if Telebrands does not

comply with Defendants cease and desist demands.



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35. Telebrands and Defendants have adverse legal interests.36. As a result, there is a justiciable controversy warranting declaratory relief.

COUNT ONE

(Declaratory Judgment of Invalidity of U.S. Patent No. D681,744)

37. Telebrands repeats and realleges all of the factual allegations made above andincorporates them herein by reference.

38. The claims of U.S. Patent No. D681,744 are invalid for failing to comply with therequirements of 35 U.S.C. 101, 102, 103 and/or 112.

39. Telebrands has no adequate remedy at law.40. Because of Defendants statement that Telebrands allegedly has infringed the

D744 patent, there is an actual and justiciable controversy between Telebrands and Defendants

regarding the D744 patent.

COUNT TWO

(Declaratory Judgment of Noninfringement of U.S. Patent No. D681,744)


42. This cause of action arises under 35 U.S.C. 271 et seq.43. Telebrands has not infringed, and is not infringing, any valid claim of U.S. Patent

No. D681,744.

44. Telebrands has not induced, and is not inducing, infringement of any valid claimof the D744 patent.



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45. Telebrands has not contributorily infringed, and is not contributorily infringing,any valid claim of the D744 patent.

46. Telebrands has no adequate remedy at law.47. Because of Defendants statement that Telebrands allegedly has infringed the

D744 patent, there is an actual and justiciable controversy between Telebrands and Defendants

regarding the D744 patent.

COUNT THREE

(Declaratory Judgment of Noninfringement of U.S. Trademark Registration No. 4,286,271)


49. This cause of action arises under 15 U.S.C. 1114 et seq.50. Telebrands has not infringed, and is not infringing, U.S. Trademark Registration

No. 4,286,271.

51. Telebrands has no adequate remedy at law.52. Because of Defendants statement that Telebrands allegedly has infringed

Defendants trademarks, there is an actual and justiciable controversy between Telebrands and

Defendants as to whether Telebrands is infringing the 271 Trademark Registration.

COUNT FOUR





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No. 4,286,272.




COUNT FIVE(Declaratory Judgment of Noninfringement of U.S. Trademark Registration No. 4,243,464)



No. 4,243,464.






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COUNT SIX




No. 4,286,043.




COUNT SEVEN




No. 4,191,792.






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COUNT EIGHT

(Declaratory Judgment of Noninfringement of U.S. Copyright Registrations for Stuffies)


74. This cause of action arises under 17 U.S.C. 501 et seq.75. Telebrands has not infringed, and is not infringing, any U.S. Copyright

Registration owned by Defendants which relates to the Stuffies product or to the marketing

campaign for that product.

76.

Telebrands has no adequate remedy at law.

77. Because of Defendants statement that Telebrands allegedly has infringedDefendants copyrights, there is an actual and justiciable controversy between Telebrands and

Defendants as to whether Telebrands is infringing the Stuffies Copyrights.

COUNT NINE

(Declaratory Judgment of Noninfringement of U.S. Copyright Registrations for

Hurrycane)


79. This cause of action arises under 17 U.S.C. 501 et seq.80. Telebrands has not infringed, and is not infringing, any U.S. Copyright

Registration owned by Defendants which relates to the Hurrycane product or to the marketing

campaign for that product.

81. Telebrands has no adequate remedy at law.



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82. Because of Defendants statement that Telebrands allegedly has infringedDefendants copyrights, there is an actual and justiciable controversy between Telebrands and

Defendants as to whether Telebrands is infringing the Hurrycane Copyrights.

COUNT TEN

(Declaratory Judgment of Invalidity and Noninfringement of Stuffies Trade Dress)


84. This cause of action arises under 15 U.S.C. 1125 et seq.85. Defendants do not own any valid trade dress rights in the Stuffies product or the

marketing campaign for such product.

86. Any alleged trade dress in the Stuffies product or the marketing campaign forsuch product is functional.

87. Telebrands has not infringed, and is not infringing, any trade dress rights ownedby Defendants which relate to the Stuffies product or to the marketing campaign for that

product.

88. There is no likelihood of confusion between Defendants Stuffies product andTelebrands POCKET PALS product, or between the marketing campaigns for such products.


Defendants trade dress rights, there is an actual and justiciable controversy between Telebrands

and Defendants as to whether Telebrands is infringing any trade dress rights in the Stuffies

product or marketing campaign.



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COUNT ELEVEN

(Declaratory Judgment of Invalidity and Noninfringement of Hurrycane Trade Dress)


92. This cause of action arises under 15 U.S.C. 1125 et seq.93. Defendants do not own any valid trade dress rights in the Hurrycane product or

the marketing campaign for such product.

94. Any alleged trade dress in the Hurrycane product or the marketing campaign forsuch product is functional.

95. Telebrands has not infringed, and is not infringing, any trade dress rights ownedby Defendants which relate to the Hurrycane product or to the marketing campaign for that

product.

96. There is no likelihood of confusion between Defendants Hurrycane productand Telebrands TRUSTY CANE product, or between the marketing campaigns for such

products.


Defendants trade dress rights, there is an actual and justiciable controversy between Telebrands

and Defendants as to whether Telebrands is infringing any trade dress rights in the Hurrycane

product or marketing campaign.



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PRAYER FOR RELIEF

WHEREFORE, Telebrands respectfully requests the following relief:

(a) For a declaration that the D744 patent is invalid;(b) For a declaration that Telebrands does not infringe any valid claim of the D744

patent;

(c) For a declaration that Telebrands does not infringe U.S. Trademark RegistrationNos. 4,286,271; 4,286,272; 4,286,043; 4,243,464; or 4,191,792;

(d) For a declaration that Defendants own no valid trade dress in the Stuffiesproduct or marketing campaign;

(e) For a declaration that Telebrands has not infringed any valid trade dress in theStuffies product or marketing campaign;

(f) For a declaration that Defendants own no valid trade dress in the Hurrycaneproduct or marketing campaign;

(g) For a declaration that Telebrands has not infringes any valid trade dress in theHurrycane product or marketing campaign;

(h) For a declaration that this is an exceptional case and for an award of its attorneysfees and costs, pursuant to 35 U.S.C. 285, 15 U.S.C. 1117(a), 17 U.S.C. 505, or any other

applicable statute or law; and

(i) For an award of such other and further relief as the Court deems just and proper.

DEMAND FOR JURY TRIAL

Telebrands demands a trial by jury on all issues so triable.



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Dated: May 29, 2013

Respectfully submitted,

By: s/ Jeffrey L. SnowJeffrey L. Snow (JS 5396)

Cooper & Dunham LLP

30 Rockefeller PlazaNew York, New York 10112Tel: (212) 278-0400

Fax: (212) 391-0525

[email protected]

Of Counsel:

Peter D. MurrayRobert T. Maldonado

Eric M. Eisenberg

Cooper & Dunham LLP30 Rockefeller Plaza

New York, New York 10112

Tel: (212) 278-0400

Fax: (212) [email protected]

[email protected]

Attorneys for Plaintiff Telebrands Corp.

4846-5302-3508, v. 3

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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Case 2:13-cv-03374-JLL-MAH Document 1-1 Filed 05/29/13 Page 1 of 9 PageID: 17

EXHIBIT A


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EXHIBIT B


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EXHIBIT C


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EXHIBIT D


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EXHIBIT E


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EXHIBIT F


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HELLMUTH &JOHNSON PLLCATTORNEYS AT LAWTelebrands CorporationAttn: Ajit Khubani & legal department79 Two Bridges RoadFairfield, NJ 07004

May 20,2013

Re: martFIVE, LLC v. Telebrands CorporationOur File No.: 21063.0001

Dear Mr. Khubani & Whom It May Concern:

WR I TER ' S D I RECT D IAL No . : (952) 746213E MA I L : MSPENCE@HJ LAWF IRM .CO

VIA EMAIL & UPS NEXT DAY AIR

Be advised that this law firm represents martFIVE, LLC ("martFIVE"), the owner of all rights, titleand interests in and to two distinct product lines protected by federal laws, known as "Stuffies"and the "HURRYCANE". Please direct all further correspondence related to these products andtheir associated legal matters to the undersigned.We expect that you are aware the Stuffies line enjoys federal trademark protection, as martFIVEhas successfully registered that mark with the United States Patent & Trademark Office, asregistration # 4,286,271, along with the mark "It's what's inside that counts!" as registration #4,286,272. Stuffies also benefits from design patent # D681,744 protecting its interests underfederal patent laws. Further, martFIVE has registered its copyrights with the United StatesCopyright Office for several variations of its Stuffies line of products. Finally, martFIVE also hasregistered its copyrights for the Stuffies advertising campaigns, including its video commercials,broadcast on television and internet outlets, as well as its webpage content. Attached for yourreference as Exhibits A & B, please find copies of martFIVE's Certificate of TrademarkRegistration for the Stuffies product line, indicated above.martFIVE is also the owner of all right, title and interest in and to a patented product known as the"HURRYCANE" The HURRYCANE also enjoys federal trademark protection, with three (3)United States Patent & Trademark Office registrations: # 4,243,464 for the mark HURRYCANE;# 4,286,043 for the mark "TheHurryCane.com"; and# 4,191,792 for the mark "HURRYCANE Theall-terrain cane.", including its stylized design. martFIVE has also registered its copyrights relatedto the HURRYCANE advertising campaigns, including video commercials and website contentwith the United States Copyright Office. Attached as Exhibits C, D & E, you will find copies ofmartFIVE's Certificates of Trademark Registration, related to its HurryCane product line.It has come to our client's attention that you have been involved in the manufacture, importation,advertising, marketing, selling and/or offering for sale products that are substantially similar to our

8050 West 78th Street , Edina, MN 55439 T 952-941-4005 F 952-941-2337 www.hjlawfirm.com


EXHIBIT G


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Telebrands CorporationMay 20,2013Page2

client's copyright, trademark and patent protected Stuffies products, as well as its trademark andpatent protected HurryCane. We understand you have been doing so through the use ofsubstantially similar product designs to martFIVE's pre-existing products. It is thus our opinionthat your products and marketing campaigns promoting them are infringements of our client'scopyright, trademark, trade dress and patent protected products, in unauthorized violation of itsrights under various federal and state laws.It is also our opinion that the manner in which you are marketing and advertising your products isinfringing upon martFIVE's copyright-protected advertising spots and website content. Theyappear to be substantially similar and derivative in content, delivery and "look and feel"; likely tocreate consumer confusion and unfairly trade upon the original creative elements of martFIVE'sadvertising. Therefore we opine that your ads are separate and distinct infringements ofmartFIVE's copyrights, at a minimum. These activities also seem comparable to your prior actswhich previously led to significant, and repeated, sanctions against you from the Federal TradeCommission.Our client will be substantially and irreparably damaged should your acts and infringementscontinue. We therefore demand that you immediately cease and desist from the ongoingproduction, importation, advertising, marketing, sale and offering for sale of these infringingproducts. You must also cease and desist from your use of any and all misleading or infringingadvertising and marketing materials. This includes, but is not limited to your promotion of theseinfringing products on websites controlled by you at http://www.trustycane.com,https://www.pocketpals.com and https://www.buypocketpets.com.In order to mitigate further damage to our client, the following actions on your part are required:

immediate discontinuance of the advertising or marketing for sale of any product withadvertising which derives from or is substantially similar to martFIVE's ads and/ormisleading to consumers, as those terms are recognized by the FTC and in federal copyrightand trademark laws; immediate discontinuance of the production, importation, distribution and/or sale ofinfringing products; turning over to our client's representative of all infringing products, patterns, molds or otherproduction apparatus in your possession; an accounting of all sales made to date of the infringing products; a payment of damages for all lost sales and profits or, in the alternative, statutory damages inan amount currently and conservatively estimated at $75,000; and payment ofmartFive' s attorneys' fees up to this point in time.

Unless we receive your written reply and confirmation that you will abide by these reasonablerequests by May 29, 2013, we will presume that you do not intend to voluntarily take the necessaryactions outlined above. We will then have no alternative but to commence immediate legal actionagainst your company, and perhaps other partners or executives, who are involved or associatedwith Telebrands Corporation, related to these unauthorized and damaging acts. If that occurs, we



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Telebrands CorporationMay 20,2013Page 3

will seek all available legal remedies under the Copyright Act, the Lanham Act, and relevant statestatutes including, but not limited to, an injunction against further marketing and sale of theinfringing products and substantial monetary damages for each act of infringement.We await your prompt response.

RMS/gmhEnclosurescc: Client



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Date and Attorney Signature.'DWHDQGVLJQWKHFLYLOFRYHUVKHHW



36/37

AO 440 (Rev. 12/09) Summons in a Civil Action

UNITED STATES DISTRICT COURTfor the

__________ District of __________

)

))))))

Plaintiff

v. Civil Action No.

Defendant

SUMMONS IN A CIVIL ACTION

To: (Defendants name and address)

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 youare 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 ofthe Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney,whose name and address are:

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

District of New Jersey

TELEBRANDS CORP.

MARTFIVE, LLC and CHARLES M. HENGEL

Charles M. Hengel3005 Maplewood Road

Wayzata, Minnesota 55391-2642

Robert T. Maldonado

Jeffrey L. SnowCooper & Dunham LLP30 Rockefeller PlazaNew York, NY 10112



37/37

AO 440 (Rev. 12/09) Summons in a Civil Action (Page 2)

Civil Action No.

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) .

u I personally served the summons on the individual at (place)

on (date) ; or

u I left the summons at the individuals 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 individuals last known address; or

u 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

u I returned the summons unexecuted because ; or

u Other(specify):

.

My fees are $ for travel and $ for services, for a total of $ .

I declare under penalty of perjury that this information is true.

Date:Servers signature

Printed name and title

Servers address

Additional information regarding attempted service, etc:

0.00


telebrands corp v martfive - dj complaint

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