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Anthem Sports v. Under The Weather - Complaint
Anthem Sports v. Under The Weather - Complaint
Anthem Sports v. Under The Weather - Complaint
:
: C.A. No. 17-596
ANTHEM SPORTS, LLC, and GRIFFIN
:
GLOBAL PRODUCTS, LLC
:
: FIRST AMENDED COMPLAINT FOR
Plaintiffs, : DECLARATORY, INJUNCTIVE, AND
: MONETARY RELIEF
v. :
: JURY TRIAL DEMANDED
UNDER THE WEATHER, LLC and ERIC :
PESCOVITZ, an individual, :
: April 13, 2017
Defendants. :
:
:
:
Plaintiffs Anthem Sports, LLC and Griffin Global Products, LLC (together, Anthem),
for their first amended complaint for tortious interference, unfair competition, breach of contract,
and declaratory relief as to Defendants Under the Weather, LLC and Eric Pescovitz (together,
1. This is a declaratory judgment action arising under the Declaratory Judgment Act,
28 U.S.C. 2201 et seq. and the Patent Laws of the United States, 35 U.S.C 1 et seq. Anthem
seeks a declaration of invalidity and noninfringement of U.S. Patent Nos. D776,779 (the 779
Patent), D776,778 (the 778 Patent), D776,777 (the 777 Patent), D725,735 (the 735
Patent), D711,998 (the 998 Patent), D711,997 (the 997 Patent), D711,996 (the 996
Patent), D691,690 (the 690 Patent), D691,689 (the 689 Patent), and D691,688 (the 688
Patent) (collectively, the Patents-in-Suit). True and correct copies of the Patents-in-Suit are
Case 3:17-cv-00596-MPS Document 9 Filed 04/13/17 Page 2 of 14
attached hereto as Exhibit A. This action further arises under the Lanham Act, 15 U.S.C. 1051
PARTIES
2. Plaintiff Anthem Sports, LLC is a limited liability company duly organized and
existing under the laws of the State of Connecticut, with its principal place of business located at
business and premier nationwide distributor of brand name sporting goods and equipment, with
over 200 years of combined industry experience. Anthem Sports, LLC primarily does business
online through its website, through company catalogs, and engages in significant advertising and
organized and existing under the laws of the State of Connecticut, with its principal place of
business located at 2 Extrusion Dr., Pawcatuck, Connecticut 06379. Griffin Global Products,
4. Upon information and belief, Defendant Under the Weather, LLC is a limited
liability company organized and existing under the laws of the State of Ohio, with a principal
Under the Weather, LLC and is a resident of the State of Ohio, residing at 5600 Graydonmeadow
6. Upon information and belief, Under the Weather, LLC and/or Eric Pescovitz are
currently the exclusive owners of all rights, titles, and interests in and to the Patents-in-Suit.
2
Case 3:17-cv-00596-MPS Document 9 Filed 04/13/17 Page 3 of 14
7. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
1331 and 1338(a) because this action arises under the Patent Laws of the United States, 35
U.S.C. 1 and the Lanham Act, 15 U.S.C. 1051, et seq., with a specific remedy sought based
upon the laws authorizing actions for declaratory judgment in the courts of the United States, 28
U.S.C. 2201 and 2202. This Court also has supplemental jurisdiction over the state law
8. This Court has personal jurisdiction over UTW under the laws of the State of
Connecticut because, upon information and belief, UTW regularly conducts business in this
judicial district by selling and offering to sell its products to Anthem and directly to residents of
Connecticut and in this judicial district, including without limitation through its fully interactive
e-commerce website that is accessible to residents of this State. Specifically, UTW has sold
products allegedly covered by the Patents-in-Suit nationwide, including to residents of this State
and judicial district. Further, UTW regularly developed and conducted business with Anthem, a
Connecticut resident, with respect to products allegedly covered by the Patents-in-Suit. UTW
and Anthem ultimately entered into an agreement in this State and judicial district whereby
Anthem would be the exclusive online distributor for UTWs products allegedly covered by the
Patents-in-Suit.
9. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391 and 1400.
3
Case 3:17-cv-00596-MPS Document 9 Filed 04/13/17 Page 4 of 14
BACKGROUND
10. The Patents-in-Suit purport to claim certain rights in designs for personal
enclosures that protect the user from weather while watching sporting events (UTW Personal
Enclosure).
11. At the time UTW first began selling the UTW Personal Enclosures, UTW was
unable to garner significant interest in the market and struggled to make appreciable sales.
12. In or around the fall of 2014, Anthem became aware of the UTW Personal
13. Through Anthems extensive efforts in early 2015, the UTW Personal Enclosures
gained traction in the marketplace and became commercially successful. Both Anthems and
UTWs sales of the UTW Personal Enclosures substantially increased during this time.
14. UTW discussed the formation of a business relationship with Anthem to further
build the market and enhance sales of the UTW Personal Enclosures. In exchange for Anthems
substantial investments in the promotion, marketing, and sales of the UTW Personal Enclosures,
as well as Anthems substantial involvement in product development, UTW and Anthem entered
into an agreement in Connecticut whereby Anthem would be the exclusive online distributor of
UTW Personal Enclosures other than UTW, who would continue to sell UTW Personal
15. UTW suggested the formation of a partnership with Anthem with respect to the
UTW Personal Enclosures and requested that Anthem create an outline of the partnerships
terms. Anthem drafted an outline and further created an application to pitch the UTW Personal
Enclosures on the ABC show, Shark Tank, and one of Anthems principals drove Mr. Pescovitz
4
Case 3:17-cv-00596-MPS Document 9 Filed 04/13/17 Page 5 of 14
to the Shark Tank audition and took the lead role in the presentation. UTW never responded to
Anthems partnership term outline, and the discussions between the parties faded.
16. Following the commercial success of the UTW Personal Enclosures, UTW raised
the prices for the UTW Personal Enclosures sold to Anthem such that it no longer became
commercially feasible for Anthem to purchase and sell the product under the Exclusive
Distribution Agreement.
17. In breach of the Exclusive Distribution Agreement between Anthem and UTW,
UTW sold UTW Personal Enclosures to major sporting goods retailer DICKs Sporting Goods,
who in turn offered and is offering the UTW Personal Enclosures for sale online on its website.
18. Anthem desired to continue to offer personal enclosure products to its sporting
goods customers and decided to source pods from a different producer. Locating a different
manufacturer, Anthem began offering personal enclosure products (the Anthem Pods) that
Anthem ensured would not infringe any valid or enforceable claim of the Patents-in-Suit.
19. UTW recently sued another personal enclosure product supplier, Above &
Beyond Balloons, Inc., for infringement of four of the Patents-in-Suit in the Southern District of
Ohio. Under the Weather, LLC v. Above & Beyond Balloons, Inc., No. 1:17-cv-39 (S.D. Ohio).
A true and correct copy of the complaint is attached hereto as Exhibit B. Specifically, the
complaint against Above & Beyond Balloons, Inc. alleges that UTWs personal enclosure
innovations have been the subject of widespread imitation by its competitors who have
attempted to capitalize on [UTW]s success. One such imitator is Above & Beyond, which
markets and sells a pop-up pod that copies [UTW]s inventive design . . . in violation of
5
Case 3:17-cv-00596-MPS Document 9 Filed 04/13/17 Page 6 of 14
20. Through its actions, UTW has shown that it believes Anthem to be another such
competitor that is allegedly infringing upon UTWs rights in the Patents-in-Suit. On or about
April 7, 2017, one of UTWs principals left a voicemail for one of Anthems principals,
threatening a patent infringement lawsuit against Anthem and an overseas company that UTW
Hey Mark, its Rick; just got an email from Anthem with your new
products. I shouldnt sound surprised, I assume thats how you work. I
just letting you know, and you can tell your friend Shanghai Eversuccess
as well, they will be sued as well as you, I have the patent on that design,
so, and if you think Im kidding, there will be a lawsuit for you next week.
Just letting you know.
22. To market the Anthem Pods, Anthem has employed various forms of social
media, including Facebook. Customers have expressed significant interest in purchasing the
have responded to customer comments indicating a desire to purchase Anthem Pods by stating,
for example, that [t]hese are illegal knockoffs and very poor quality. The legal ones are only
undertheweatherpods.com. They were on sharktank last night; and [t]hese are complete knock
offs. If you want quality and the real original product go to the page Under the Weather. See
Exhibit D.
24. UTW has made threats against Anthem, its supposed supplier, and customers that
the Anthem Pods allegedly infringe one or more claims of the Patents-in-Suit.
6
Case 3:17-cv-00596-MPS Document 9 Filed 04/13/17 Page 7 of 14
25. Anthem alleges that the manufacture, use, sale, offer for sale, or importation of
the Anthem Pods do not infringe any valid or enforceable claim of the Patents-in-Suit under 35
U.S.C. 271, whether directly, contributorily, through the doctrine of equivalents, or otherwise.
26. Anthem further alleges that Patents-in-Suit are invalid because they fail to meet
the conditions of patentability of otherwise comply with one or more of 35 U.S.C. 100 et seq.,
27. An actual justiciable case or controversy exists between Anthem and UTW with
28. UTWs manifested intent to litigate the Patents-in-Suit against Anthem, as it has
done against at least one other accused infringer, threatens actual and imminent injury to Anthem
that can be redressed by judicial relief, and that injury is of sufficient immediacy and reality to
infringement related to the Anthem Pods will cause Anthem substantial harm.
COUNT I
(Declaratory Judgment of Noninfringement of the Patents-in-Suit)
29. Anthem repeats and realleges the foregoing paragraphs as if fully restated herein.
Anthem and UTW concerning whether the manufacture, use, sale, offer for sale, or importation
into the United States of the Anthem Pods infringe any valid or enforceable claim of the Patents-
in-Suit.
character.
7
Case 3:17-cv-00596-MPS Document 9 Filed 04/13/17 Page 8 of 14
32. The manufacture, use, sale, offer for sale, or importation into the United States of
the Anthem Pods does not infringe any valid or enforceable claim of the Patents-in-Suit.
33. Anthem has no adequate remedy at law and is entitled to a judicial declaration
that the manufacture, use, sale, offer for sale, or importation into the United States of the Anthem
Pods does not infringe any valid or enforceable claim of the Patents-in-Suit, whether directly,
contributorily, or otherwise.
COUNT II
(Declaratory Judgment of Invalidity of the Patents-in-Suit)
34. Anthem repeats and realleges the foregoing paragraphs as if fully restated herein.
Anthem and UTW concerning whether the claims of the Patents-in-Suit are valid under 35
character.
37. All of the claims of the Patents-in-Suit are invalid because they fail to meet the
conditions of patentability or otherwise comply with one or more of the statutory requirements in
35 U.S.C. 100 et seq., including without limitation, 35 U.S.C. 101, 102, 103, and 112.
38. Anthem has no adequate remedy at law and is entitled to a judicial declaration
COUNT III
(Unfair Competition, False Designations of Origin, False Description, and False
Advertising Lanham Act, 15 U.S.C. 1125)
39. Anthem repeats and realleges the foregoing paragraphs as if fully restated herein.
40. UTWs claims that the Anthem Pods are illegal knockoffs only available for
purchase from UTW have caused and are likely to continue to cause confusion, or to cause
8
Case 3:17-cv-00596-MPS Document 9 Filed 04/13/17 Page 9 of 14
mistake, or to deceive customers into believing that Anthem and UTW are affiliated, or that
certain products, goods, and services offered by Anthem are made by, sponsored by, originate
41. Further, UTWs claims that the Anthem Pods are illegal knockoffs of very poor or
inferior quality misrepresent the nature, characteristics, and qualities of the Anthem Pods, in
42. UTW has thus competed unfairly with Anthem and has realized unjust profits as a
43. UTW has acted with full knowledge that its representations regarding the Anthem
Pods are false and with the intention to preclude fair competition in the marketplace. UTWs
actions are intentional, willful, and were calculated to cause confusion, to cause mistake, or to
deceive.
44. UTWs actions have caused irreparable injury to Anthems reputation and
goodwill and, unless enjoined, UTW will continue its acts of unfair competition. Anthem has no
COUNT IV
(Tortious Interference with Business Expectancies)
45. Anthem repeats and realleges the foregoing paragraphs as if fully restated herein.
46. Anthem has, and will continue to, pursue business and contractual relationships
with customers for the Anthem Pods. Anthem has an expectation of continued business
relationships with customers for the Anthem Pods, which will provide economic advantages,
revenues, and profits to Anthem. Given its customers express enthusiasm and interest in
purchasing the Anthem Pods, Anthem has a reasonable expectation of business expectancies
9
Case 3:17-cv-00596-MPS Document 9 Filed 04/13/17 Page 10 of 14
47. By virtue of UTWs assertions to Anthems customers that the Anthem Pods are
illegal knockoffs, UTW is aware of Anthems expectations regarding its pursuit of sales of the
Anthem Pods to customers and the economic advantage that Anthem derives and can derive
therefrom.
48. Knowing that the Patents-in-Suit are not infringed or invalid, and without having
any legitimate basis for its infringement position, UTW has wrongfully and willfully asserted
objectively baseless infringement claims against Anthem and customers in bad faith.
49. UTW has lodged its objectively baseless infringement claims against Anthem in
bad faith to unlawfully stifle competition and prohibit Anthem from fairly competing in the
marketplace for sales of the Anthem Pods that UTW has wrongfully accused of infringement.
UTW intentionally interfered with Anthems business expectancies with malice and an intent to
50. As a direct and proximate result of UTWs tortious interference, Anthem has
suffered and will suffer substantial irreparable harm and damages. Further, without injunctive
COUNT V
(Violation of Connecticut Unfair Trade Practices Act)
51. Anthem repeats and realleges the foregoing paragraphs as if fully restated herein.
52. UTWs conduct in improperly accusing the Anthem Pods of infringement and
unfair, deceptive, and constitutes an unfair method of competition in violation of the Connecticut
53. UTWs conduct described above was intentional, knowing, willful, malicious,
fraudulent, and oppressive, carried out for the purpose of competing unfairly with Anthem.
10
Case 3:17-cv-00596-MPS Document 9 Filed 04/13/17 Page 11 of 14
54. As a direct and proximate result of UTWs conduct, Anthem has suffered and will
continue to suffer irreparable financial loss and injury to its goodwill and reputation. As a result,
UTW is liable to Anthem for attorneys fees, costs, and punitive damages under Conn. Gen. Stat.
42-110g. Unless enjoined, UTW will continue its unlawful conduct, further injuring Anthem.
COUNT VI
(Common Law Unfair Competition)
55. Anthem repeats and realleges the foregoing paragraphs as if fully restated herein.
common law, as the aforementioned acts constitute an intentional and wrongful interference with
Anthems ability to fairly compete in the market for sales of Anthem Pods.
57. As a result, Anthem has suffered substantial damage and irreparable harm,
constituting injury for which Anthem has no adequate remedy at law. Unless enjoined, UTWs
COUNT VII
(Breach of Contract)
58. Anthem repeats and realleges the foregoing paragraphs as if fully restated herein.
59. Anthem has substantially complied with its obligations under the Exclusive
Distribution Agreement, which is a valid and binding contract between Anthem and UTW
60. UTWs actions in selling the UTW Personal Enclosures to DICKs Sporting
Goods for resale online constitute breaches of UTWs obligations under the Exclusive
Distribution Agreement.
11
Case 3:17-cv-00596-MPS Document 9 Filed 04/13/17 Page 12 of 14
61. UTWs breach is material in that it frustrates and defeats the purpose of the
62. As a direct and proximate result of UTWs breach of the Exclusive Distribution
Agreement, Anthem has suffered and continues to suffer damages, and further, has suffered and
will continue to suffer irreparable harm for which it has no adequate remedy at law.
A. Enter judgment that Anthem has not committed any act of infringement of any
representatives, employees, and those persons acting in concert or participation with UTW, from
D. Enter judgment that UTW has engaged in tortious interference with Anthems
business expectancies;
representatives, employees, and those persons acting in concert or participation with UTW, from
asserting that the Anthem Pods infringe any claim of the Patents-in-Suit or are otherwise illegal;
F. Enter judgment that UTW has breached the Exclusive Distribution Agreement;
G. Grant Anthem a monetary aware to account for UTWs breach of the Exclusive
12
Case 3:17-cv-00596-MPS Document 9 Filed 04/13/17 Page 13 of 14
H. Issue a declaration that this case is exceptional and award Anthem its attorneys'
I. Order UTW to pay actual damages that Anthem has suffered as a result of UTW' s
J. Order UTW to disgorge all profits attributable to its unfair competition and
wrongful conduct;
K. Grant Anthem a monetary award to account for UTW' s unfair competition and
M. Grant further equitable relief in order to enjoin the harm caused by UTW;
0. Grant such other and further relief as this Court deems just and equitable.
JURY DEMAND
Resp.
13
Case 3:17-cv-00596-MPS Document 9 Filed 04/13/17 Page 14 of 14
Baltimore, MD 21202
Telephone: (410) 545-5830
14
Case 3:17-cv-00596-MPS Document 9-1 Filed 04/13/17 Page 1 of 79
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U.S. PATENT DOCUMENTS FIG.1 is an elevated perspective view ofa personal enclosure,
showing my new design, from the left front;
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D250,687 s 111979 Robel en
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D326,495 s 511992 Pearce
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Case 3:17-cv-00596-MPS Document 9-2 Filed 04/13/17 Page 1 of 13
EXHIBIT B
Case 3:17-cv-00596-MPS Document 9-2 Filed 04/13/17 Page 2 of 13
Plaintiff, JUDGE:
v. COMPLAINT
Defendant.
Plaintiff Under the Weather, LLC (Under the Weather), complains and alleges as
follows against Defendant Above & Beyond Balloons, Inc. (Above & Beyond or
Defendant):
1. Inspired by countless weekends spent braving the elements to watch his children
participate in outdoor sports, Eric Pescovitz set out to design a personal enclosure to protect the
user from the elements. In 2010, this goal became a reality as Mr. Pescovitz started his
company, Under the Weather, to promote and sell his inventive personal pop-up pods to the
public.
2. Since 2010, Mr. Pescovitz has invested in intellectual property to protect his
innovations and business. Such investments have resulted in seven issued United States design
patents, with an additional twelve patent applications pending in the United States Patent and
Trademark Office. Mr. Pescovitz has also invested to secure a U.S. registered trademark for
UNDER THE WEATHER (the UTW Registered Mark). The success of Mr. Pescovitzs
Case 3:17-cv-00596-MPS Document 9-2 Filed 04/13/17 Page 3 of 13
business and his tireless promotion of his company and products has resulted in the UTW
Registered Mark becoming a well-known and valued mark in the marketplace that the public
3. Despite the intellectual property rights of Under the Weather, its innovations have
been the subject of widespread imitation by its competitors who have attempted to capitalize on
Under the Weathers success. One such imitator is Above & Beyond, which markets and sells a
pop-up pod that copies Under the Weathers inventive design and improperly used the UTW
THE PARTIES
4. Under the Weather is an Ohio Limited Liability Company with a principal place
principal place of business located at 2400 Pullman Street, Santa Ana, California 92705.
6. On information and belief, Above & Beyond does business under the name
EasyGo Products.
7. This is a civil action against Defendant Above & Beyond for patent infringement
under the patent laws of the United States and for trademark infringement under the trademark
8. The Court has subject matter jurisdiction over this action under 28 U.S.C. 1331
because it involves a federal question; under 28 U.S.C. 1338 because it involves an Act to
Congress related to patents and trademarks; and under 15 U.S.C. 1121, because it involves a
2
Case 3:17-cv-00596-MPS Document 9-2 Filed 04/13/17 Page 4 of 13
9. This Court has specific personal jurisdiction over Above & Beyond because,
among other things, Above & Beyond has sold products in this judicial district and in Ohio that
infringe Under the Weathers intellectual property rights; Above & Beyond continues to
advertise through publicly available on-line retailers; and, on information and belief, continues
to sell products in this judicial district and in Ohio that infringe Under the Weathers intellectual
property rights.
10. This Court has general personal jurisdiction over Above & Beyond because,
among other things, on information and belief, Above & Beyond regularly solicits and transacts
business in Ohio and in this judicial district; Above & Beyond engages in a persistent course of
conducting business in Ohio; and Above & Beyond derives substantial revenue from goods that
infringe the patents-in-suit that are sold in Ohio and this judicial district.
11. Venue is proper in this judicial district under 28 U.S.C. 1391 and 1400.
RELEVANT FACTS
12. Under the Weather is the owner of U.S. Patent No. D691,688 (the 688 Patent),
which is titled Personal Enclosure and was duly and lawfully issued on October 15, 2013, to
Eric Frank Pescovitz as inventor. A true and correct copy of the 688 Patent is attached hereto as
Exhibit A. Under the Weather is the owner of all right, title and interest in the 688 Patent,
including the right to sue and recover damages for infringement of the 688 Patent and obtain a
13. Under the Weather is the owner of U.S. Patent No. D691,689 (the 689 Patent),
which is titled Personal Enclosure Side and was duly and lawfully issued on October 15, 2013,
to Eric Frank Pescovitz as inventor. A true and correct copy of the 689 Patent is attached hereto
as Exhibit B. Under the Weather is the owner of all right, title and interest in the 689 Patent,
3
Case 3:17-cv-00596-MPS Document 9-2 Filed 04/13/17 Page 5 of 13
including the right to sue and recover damages for infringement of the 689 Patent and obtain a
14. Under the Weather is the owner of U.S. Patent No. D691,690 (the 690 Patent),
which is titled Personal Enclosure Front and was duly and lawfully issued on October 15,
2013, to Eric Frank Pescovitz as inventor. A true and correct copy of the 690 Patent is attached
hereto as Exhibit C. Under the Weather is the owner of all right, title and interest in the 690
Patent, including the right to sue and recover damages for infringement of the 690 Patent and
15. Under the Weather is the owner of U.S. Patent No. D711,996 (the 996 Patent,
and collectively with the 688, 689, and 690 Patents the Patents-in-Suit), which is titled
Personal Enclosure and was duly and lawfully issued on August 26, 2014, to Eric Frank
Pescovitz as inventor. A true and correct copy of the 996 Patent is attached hereto as Exhibit D.
Under the Weather is the owner of all right, title and interest in the 996 Patent, including the
right to sue and recover damages for infringement of the 996 Patent and obtain a preliminary or
permanent injunction.
16. Under the Weather is the owner of a federal registration for the UTW Registered
Mark, U.S. Registration No. 4106243. A true and correct copy of the Registration Certificate is
17. Above & Beyond has sold and continues to sell a pop-up pod marketed as the
Climate Capsule Sport Shelter (Above & Beyond Pop-Up Pod). On information and belief,
Above & Beyond sells the Above & Beyond Pop-Up Pod in association with the name EasyGo
Products. A true and accurate copy of a search webpage and product webpage from
4
Case 3:17-cv-00596-MPS Document 9-2 Filed 04/13/17 Page 6 of 13
Walmart.com are attached as Exhibit F. A true and accurate copy of product webpages from
18. On information and belief, Above & Beyond has used the UTW Registered Mark
general search for Under the Weather on Amazon.com lists the Above & Beyond Pop-Up Pod
as the first result, even above products whose actual title is Under the Weather. A true and
correct copy of a search webpage from Amazon.com is attached as Exhibit H. When a consumer
conducts such a search with the intention of finding an Under the Weather pop-up pod, the
consumer is likely to be confused, mistaken, or deceived by the search results when making a
purchasing decision.
19. On information and belief, for its posting of the Above & Beyond Pop-Up Pod,
Above & Beyond identified Under the Weather as keywords to be used by Amazon.com in
Amazon.coms search algorithm to draw customers that are searching for an Under the Weather
pop-up pod to the Above & Beyond Pop-Up Pod product page.
20. Above & Beyond has used a variation of the UTW Registered Mark in the title of
its product listing on Amazon.com Climate Capsule Sports Shelter - The Weather Tent You
Sit Under Sports Pod (emphasis added). On information and belief, Amazon.com prioritizes the
words in a products title in its search algorithm; therefore, Above & Beyond crafted the title to
further improve the positioning of the Above & Beyond Pop-Up Pod in Amazon.com search
results for customers searching for an Under the Weather pop-up pod.
5
Case 3:17-cv-00596-MPS Document 9-2 Filed 04/13/17 Page 7 of 13
COUNT I
21. Under the Weather incorporates by reference the allegations set forth in
22. Above & Beyond has infringed and continues to infringe the 688 Patent by using,
selling, and/or offering to sell in the United States and/or importing into the United States the
Above & Beyond Pop-Up Pod, which embodies the design covered by the 688 Patent.
23. On information and belief, Above & Beyond was aware of the 688 Patent prior
24. On information and belief, Above & Beyonds infringement of the 688 Patent
has been and continues to be intentional, willful, and without regard to Under the Weathers
rights.
25. On information and belief, Above & Beyond has gained profits by virtue of its
26. Under the Weather has been, and continues to be, damaged by such infringement
COUNT II
27. Under the Weather incorporates by reference the allegations set forth in
28. Above & Beyond has infringed and continues to infringe the 689 Patent by using,
selling, and/or offering to sell in the United States and/or importing into the United States the
Above & Beyond Pop-Up Pod, which embodies the design covered by the 689 Patent.
6
Case 3:17-cv-00596-MPS Document 9-2 Filed 04/13/17 Page 8 of 13
29. On information and belief, Above & Beyond was aware of the 689 Patent prior
30. On information and belief, Above & Beyonds infringement of the 689 Patent
has been and continues to be intentional, willful, and without regard to Under the Weathers
rights.
31. On information and belief, Above & Beyond has gained profits by virtue of its
32. Under the Weather has been, and continues to be, damaged by such infringement
COUNT III
33. Under the Weather incorporates by reference the allegations set forth in
34. Above & Beyond has infringed and continues to infringe the 690 Patent by using,
selling, and/or offering to sell in the United States and/or importing into the United States the
Above & Beyond Pop-Up Pod, which embodies the design covered by the 690 Patent.
35. On information and belief, Above & Beyond was aware of the 690 Patent prior
36. On information and belief, Above & Beyonds infringement of the 690 Patent
has been and continues to be intentional, willful, and without regard to Under the Weathers
rights.
37. On information and belief, Above & Beyond has gained profits by virtue of its
7
Case 3:17-cv-00596-MPS Document 9-2 Filed 04/13/17 Page 9 of 13
38. Under the Weather has been, and continues to be, damaged by such infringement
COUNT IV
39. Under the Weather incorporates by reference the allegations set forth in
40. Above & Beyond has infringed and continues to infringe the 996 Patent by using,
selling, and/or offering to sell in the United States and/or importing into the United States the
Above & Beyond Pop-Up Pod, which embodies the design covered by the 996 Patent.
41. On information and belief, Above & Beyond was aware of the 996 Patent prior
42. On information and belief, Above & Beyonds infringement of the 996 Patent
has been and continues to be intentional, willful, and without regard to Under the Weathers
rights.
43. On information and belief, Above & Beyond has gained profits by virtue of its
44. Under the Weather has been, and continues to be, damaged by such infringement
COUNT V
45. Under the Weather incorporates by reference the allegations set forth in
8
Case 3:17-cv-00596-MPS Document 9-2 Filed 04/13/17 Page 10 of 13
46. On information and belief, Above & Beyond has used the UTW Registered Mark
in commerce in connection with the sale, offering for sale, distributing and advertising of goods
47. Above & Beyonds use of the UTW Registered Mark creates a likelihood of
sponsorship, approval, commercial activities, nature, characteristics, and qualities of the goods
offered by Above & Beyond, all to the detriment of Under the Weather. On information and
belief, Above & Beyonds conduct caused the public to believe that the Above & Beyond Pop-
48. On information and belief, Above & Beyonds conduct is deliberate and intended
to confuse the public as to the source of Above & Beyonds goods and to injure Under the
Weather and reap the benefit of Under the Weathers goodwill associated with the UTW
Registered Mark.
49. Above & Beyond has made profits to which it is not entitled. Above & Beyonds
conduct has damaged Under the Weather, and Under the Weather is entitled to recover all
damages, profits and advantages realized by Above & Beyond as a result of its unlawful conduct,
50. On information and belief, Above & Beyond has acted with knowledge of Under
the Weathers ownership of the UTW Registered Mark and with deliberate intention or reckless
disregard to unfairly benefit from Under the Weathers goodwill in the UTW Registered Mark.
51. On information and belief, Above & Beyonds unlawful actions, were willful,
with the result that Under the Weather is entitled to treble damages and an award of reasonable
9
Case 3:17-cv-00596-MPS Document 9-2 Filed 04/13/17 Page 11 of 13
WHEREFORE, Plaintiff Under the Weather respectfully requests relief and judgment as
follows:
1. A judgment that Defendant Above & Beyond has infringed each of the Patents-in-
Suit;
its employees, agents, officers, directors, attorneys, successors, affiliates, subsidiaries and
assigns, and all those in active concert and participation with Defendant Above & Beyond, from
3. Award Plaintiff Under the Weather its actual damages in an amount to be proved
at trial and/or as otherwise provided by law, as a result of the infringement of the Patents-in-Suit;
4. Award Plaintiff Under the Weather the total profit realized by Defendant Above
5. Award Plaintiff Under the Weather all of Defendant Above & Beyonds profits,
6. A judgment that Defendant Above & Beyond has infringed the UTW Registered
Mark;
its employees, agents, officers, directors, attorneys, successors, affiliates, subsidiaries and
assigns, and all those in active concert and participation with Defendant Above & Beyond, from
infringing the UTW Registered Mark; and from using in any manner the UTW Registered Mark
or any other words or arrangement similar thereto that may cause, or may be likely to cause,
10
Case 3:17-cv-00596-MPS Document 9-2 Filed 04/13/17 Page 12 of 13
8. Award Plaintiff Under the Weather its actual damages in an amount to be proved
at trial and/or as otherwise provided by law, as a result of the infringement of the UTW
Registered Mark;
10. A judgment trebling any damages award pursuant to 15 U.S.C. 1117; and
11. Award Plaintiff Under the Weather such other and further relief as is just and
proper.
/s/Risto Pribisich
Risto Pribisich (0081758)
Mark E. Avsec (0064472)
BENESCH, FRIEDLANDER, COPLAN &
ARONOFF LLP
200 Public Square
Suite 2300
Cleveland OH 44114 2378
Telephone: (216) 363 4500
Facsimile: (216) 363-4588
Email: rpribisich@beneschlaw.com
mavsec@beneschlaw.com
11
Case 3:17-cv-00596-MPS Document 9-2 Filed 04/13/17 Page 13 of 13
Plaintiff Under the Weather, LLC hereby makes demand for a trial by jury pursuant to
Rule 38 of the Federal Rules of Civil Procedure as to all issues of this lawsuit.
/s/Risto Pribisich
One of the Attorneys for Plaintiff
Under the Weather, LLC
12
Case 3:17-cv-00596-MPS Document 9-3 Filed 04/13/17 Page 1 of 2
EXHIBIT C
Case 3:17-cv-00596-MPS Document 9-3 Filed 04/13/17 Page 2 of 2
'Mite a reply 0
Nakita Ceniceros Veronica Mendoza-Ybarra
Like Reply Apnl Bat 24Spm
'+ 1 Reply
'+ 1 Reply
Wnte a comment 0 @
Case 3:17-cv-00596-MPS Document 9-4 Filed 04/13/17 Page 1 of 8
EXHIBIT D
Case 3:17-cv-00596-MPS Document 9-4 Filed 04/13/17 Page 2 of 8
undertheweatherpods.com
Lakeeta Jones
LaShekia Hughes, Riley and I are ordering one of
these for next year.
Saturday at 3:45 PM Like O 1 Reply
LaShekia Hughes
Good idea!! Aunt Shakey needs one too!!
Saturday at 3: 56 PM Like O 1 Reply Message
Rick Pescovitz
LaShekia Hughes only
Place to get them is
undertheweatherpods.com (patent holder and
inventor)
Yvonne Lopez
Harmony Scopazzi"" this is a great idea
I LOVE US.
Saturday at 3:51 PM Like O 1 Reply Message
0 ..
LJ
---
Case 3:17-cv-00596-MPS Document 9-4 Filed 04/13/17 Page 3 of 8
Mieasha Fields
Quwanda Bonique Fields Natasha Smith
Saturday at 7:31 PM Like ~ 1 Reply Message
Sally Steele
Fred Everett these are needed for softball when it's
ugly out!
Saturday at 7:37 PM Like ~ 2 Reply Message
Marilyn Olsen
I saw these online a few years ago ...
Saturday at 7:59 PM Like Reply Message
Rick Pescovitz
You saw undertheweatherpods com the ones
you see here are patent infringing knockoffs
Maggie Cleary
Zachary DiMotta
Saturday at 8:38 PM Like Reply Message
Kelly Janae
Charnelle Robbins Ashley Nicole Clifford Jones
perfect for when we see fireworks
Saturday at 8:49 PM Like ~ 1 Reply Message
0 ..
LJ
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Case 3:17-cv-00596-MPS Document 9-4 Filed 04/13/17 Page 4 of 8
Delia Nuno
Suzie Nuno
YES!!!!!!
Saturday at 6:33 PM Like Reply Message
Rick Pescovitz
Suzie Nuno these are illegal knockoffs- only
place to get them is
undertheweatherpods.com
0 ..
LJ
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Case 3:17-cv-00596-MPS Document 9-4 Filed 04/13/17 Page 5 of 8
Yvonne Lopez
Harmony Scopazzi"' this is a great idea
I LOVE US.
Saturday at 3: 51 PM Like ~ 1 Reply Message
Harmony Scopazzi
Then I won't have to talk to anyone
Saturday at 3:57 PM Like ~ 1 Reply Message
Rick Pescovitz
Yes- and it was MY idea and patent! We were
on shark tank last night.
UnderthevVeatherf)ods com
Yvonne Lopez
Kristin Bertolina Faust"" we need these
I LOVE US.
Saturday at 3:52 PM Like Reply Message
0 ..
LJ
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Case 3:17-cv-00596-MPS Document 9-4 Filed 04/13/17 Page 6 of 8
9~
Maggie Cleary
Zachary DiMotta
Saturday at 8:38 PM Like Reply Message
Kelly Janae
Charnelle Robbins Ashley Nicole Clifford Jones
perfect for when we see fireworks
Saturday at 8:49 PM Like O 1 Reply Message
Clifford Jones
We saw this on Shark Tank today!
Saturday at 10:26 PM Like Reply Message
Rick Pescovitz
Clifford Jones this is an illegal, very poor
knockoff of what you saw on shark tank
.::>atu uay al 1u:_,o v uKe Kep1y
Debra Hall
Kendra Thompson we need these!! You are buying!!
Saturday at 9:05 PM Like Reply Message
0 ..
LJ
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Case 3:17-cv-00596-MPS Document 9-4 Filed 04/13/17 Page 7 of 8
Debra Hall
Kendra Thompson we need these!! You are buying!!
Saturday at 9:05 PM Like Reply Message
Rick Pescovitz
These are illegal knockoffs and very poor
quality. The legal ones are only available at
unaerthev.eatherpods.co.n
Vinnie Knoepfel
Elizabeth Knoepfel
Saturday at 9:30 PM Like Reply Message
Katrysse Mendoza-Martinez
UNDER THE WEATHER is the company that was on
Shark Tank
;:,otu uoy ot ~.42 Pfv1 Like O 1 Reply
0 ..
LJ
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Case 3:17-cv-00596-MPS Document 9-4 Filed 04/13/17 Page 8 of 8
Cynthia Zamarron
Sylvia Ripley
Saturday at 10:17 PM Like Reply Message
Sylvia Ripley
I seriously want this!!!
Saturday at 10:18 PM Like Reply Message
Cynthia Zamarron
You seriously need one! :-)
Saturday at 10:19 PM Like ~ 1 Reply Message
Rick Pescovitz
Sylvia Ripley these are illegal knockoffs- only
place to purchase is
undertheweatheroods.com. They were on
sharktank last night
Russ Hiller
If any of my friends see me in one of these, Please,
shoot me!!
Saturday at 10:22 PM Like ~ 1 Reply Message
Terry Carter
J:l1 Lt_ unu ,,.,jlJ ha \Jlt~~nrL~r\l_
0 .. LJ
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