Kao v. Snow Monster - Complaint

Case 2:17-cv-08934 Document 1 Filed 12/12/17 Page 1 of 12 Page ID #:1
Tommy Wang (SBN: 272409)

1
Jonathan Fang (SBN: 279106)
2 WANG IP LAW GROUP, P.C.
18645 E. Gale Ave., Suite 205
3
Industry, CA 91748
4 Telephone: (888) 827-8880
Facsimile: (888) 827-8880
5 Email: twang@thewangiplaw.com | jfang@thewangiplaw.com
6
Attorneys for Plaintiff
7 Peter Kao
UNITED STATES DISTRICT
8
CENTRAL DISTRICT OF CALIFORNIA
9
PETER KAO, an individual, Case No.: 2:17-cv-8934
10
Plaintiff, PLAINTIFFS COMPLAINT FOR
11
DAMAGES AND PERMANENT
12 vs. INJUNCTION FOR:
13
1. DESIGN PATENT
SNOW MONSTER INC., a California INFRINGEMENT
14 corporation; CAFE DE PARIS, INC., a
California corporation; HEEKTEA, a
15 business entity unknown; CINDY CAI,
an individual; and Does 1 to 10,
16
inclusive,
17 Defendants.
18
19 PLAINTIFF PETER KAO (hereinafter Plaintiff) hereby files this

20 Complaint against Defendants SNOW MONSTER INC., a California corporation,
21 CAFE DE PARIS, INC., a California corporation, HEEKTEA, a business entity
22 unknown, CINDY CAI, an individual, and Does 1 to 10 (collectively,
23 Defendants), and alleges as follows:
24 //
25 //
COMPLAINT
1
1 INTRODUCTION
2 1. This action concerns Defendants willful and blatant infringement of
3 Plaintiffs protectable rights in and to the design patent of Plaintiffs light bulb
4 shaped drinking bottle. Plaintiff seeks damages, attorneys fees, costs, pre-
5 judgment and post-judgment interest, and preliminary and permanent injunctive
6 relief.
7 JURISDICTION AND VENUE
8 2. This action arises under 35 U.S.C. 271 and 281. This Court has
9 original jurisdiction over the subject matter of this action pursuant to 28 U.S.C.
10 1331 and 28 U.S.C. 1338.
11 3. This Court has personal jurisdiction over Defendants, because
12 Defendants have a continuous, systematic, and substantial presence within this
13 judicial district including the selling and offering for sale infringing products in
14 this judicial district, and by committing acts of infringement in this judicial district,
15 including but not limited to selling infringing products directly to consumers
16 and/or retailers in this district and selling into the stream of commerce knowing
17 such products would be sold in California and this district, which acts form a
18 substantial part of the events or omissions giving rise to Plaintiffs claim.
19 4. Venue is proper in this judicial district under 28 U.S.C. 1391(b)
20 and 1400(b), as Defendants have committed acts of infringement in this district.
21 THE PARTIES
22 5. Plaintiff PETER KAO is an individual residing in Los Angeles
23 County, California.
24 6. Plaintiff is informed and believes, and thereon alleges, that Defendant
25 SNOW MONSTER INC. (Snow Monster) is a corporation organized and
COMPLAINT
2
1 existing under the laws of the state of California, having its principal place of
2 business at 5211 East 2nd Street, Long Beach, CA 90803.
3 7. Plaintiff is informed and believes, and thereon alleges, that Defendant
4 CAFE DE PARIS, INC. (Cafe De Paris) is a corporation organized and existing
5 under the laws of the state of California, having its principal place of business at
6 17575 Colima Rd., City of Industry, CA 91748 and incorporated at 22805 Hidden
7 Hills Rd., Yorba Linda, CA 92887.
8 8. Plaintiff is informed and believes, and thereon alleges that Defendant
9 HEEKTEA (HeekTea) is a business entity unknown having a principal place of
10 business at 18234 Gale Ave., City of Industry, CA 91748.
11 9. Plaintiff is informed and believes, and thereon alleges that Defendant
12 CINDY CAI (Cai) is the owner of HeekTea, based on her ownership of the
13 trademark HEEKTEA . Cai is the owner of the trademark HEEKTEA
14 (Trademark Registration Number 5,349,480) that is displayed on the storefront
15 of HeekTea at 18234 Gale Ave., City of Industry, CA 91748.
16 10. Plaintiff does not know the true names, identities and capacities of
17 Defendants sued herein as DOES 1 to 10, and therefore sues these Defendants by
18 such fictitious names. At such time as Plaintiff learns the true names, identities,
19 and capacities of Defendants DOES 1 to 10, Plaintiff will amend this Complaint to
20 reflect such names and capacities.
21 11. Plaintiff is informed and believes, and thereon alleges that Defendants
22 have committed the acts alleged herein within this judicial district.
23 //
24 //
25 //
COMPLAINT
3
1 GENERAL ALLEGATIONS
2 12. The Plaintiffs bottle designed to mimic the classic light bulb (Light
3 Bulb Design) is one of Plaintiffs innovative designs.
4 13. Plaintiffs Light Bulb Design is protected by United States Design
5 Patent No. D577,601S (601 Patent), which was duly and lawfully issued by the
6 United States Patent and Trademark Office (USPTO) on September 30, 2008.
7 Plaintiff is the true owner of all rights, title, and interest in the 601 Patent that
8 encompasses the Light Bulb Design. A true and correct copy of the 601 Patent is
9 attached hereto as Exhibit 1.
10 14. Plaintiffs Light Bulb Design is distinctively designed with the
11 following features to mimic the look and feel of a classic A type light bulb: 1)
12 pear shaped form; 2) bulbous bottom; 3) narrow neck; and 4) a threaded top to
13 fasten a screw cap. The above-described characteristics and design together
14 constitute the Plaintiffs 601 Patent, in which Plaintiff owns protectable rights.
15 15. The success and novelty of the 601 Patent prompted third parties,
16 including Defendants to manufacture and/or distribute blatant counterfeits of
17 Plaintiffs innovative design to compete with and infringe the 601 Patent.
18 16. In or around July 2017, Plaintiff first discovered that Defendants
19 manufactured and/or offered for sale, nearly identical copies of Plaintiffs Light
20 Bulb Design (Infringing Products), which is the subject matter of the 601 Patent.
21 A true and correct copy of Defendants advertisements is attached hereto as
22 Exhibits 2, 3 and 4.
23 17. Upon information and belief, Plaintiff alleges that Defendants
24 Infringing Products were, and still are manufactured, distributed, and/or offered for
25
COMPLAINT
4
1 sale using a substantially similar design, characteristic, and size as Plaintiffs 601
2 Patent.
3 18. Plaintiff is informed and believes that Defendants were aware of
4 Plaintiffs rights before it began its infringing activity, and that Defendants use
5 and infringement is therefore willful.
6 FIRST COUNT
7 Design Patent Infringement
8 (Pursuant to 35 U.S.C. 271)
9 19. Plaintiff restates and incorporates by reference the allegations asserted
10 in each of the preceding paragraphs, as though fully set forth herein.
11 20. Defendants, through its agents, employees, and representatives, have
12 directly infringed, and continue to directly infringe the 601 Patent under 35 U.S.C.
13 271.
14 21. Defendant Snow Monster, through its agents, employees, and
15 representatives has, and continue to knowingly, intentionally, and willfully infringe
16 the 601 Patent by selling, offering for sale, and/or importing Infringing Products
17 such as Light Bulb Jar that, without the cap, would appear to an ordinary
18 observer to be substantially similar to the claim of the 601 Patent as shown below.
19 //
20 //
21 //
22 //
23 //
24 //
25 //
COMPLAINT
5
1
Infringing Product U.S. Design Patent No. D577,601
2
10
11
12
13
14
15
22. Defendant Cafe De Paris, through its agents, employees, and
16
representatives has, and continue to knowingly, intentionally, and willfully infringe
17
the 601 Patent by selling, offering for sale, and/or importing Infringing Products
18
such as Boba Bulb that, without the cap, would appear to an ordinary observer to
19
be substantially similar to the claim of the 601 Patent as shown below.
20
//
21
//
22
//
23
//
24
25
COMPLAINT
6
1
2
10
11
12
13
14
15
16
17
18
19
20
21
22
23
23. Defendants HeekTea and Cindy Cai, through their agents, employees,
24
and representatives has, and continue to knowingly, intentionally, and willfully
25
COMPLAINT
7
1 infringe the 601 Patent by selling, offering for sale, and/or importing Infringing
2 Products such as Bulb Cup that, without the cap, would appear to an ordinary
3 observer to be substantially similar to the claim of the 601 Patent as shown below.
4
5
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
COMPLAINT
8
6
24. Defendants undertook their acts of infringement of the 601 Patent
7
without permission or license.
8
25. Upon information and belief, Defendants had actual knowledge of
9
Plaintiffs right in the design claimed in the 601 Patent. Defendants Infringing
10
Products are a nearly identical copy of Plaintiffs design. Defendants actions
11
constitute willful and intention infringement of the 601 Patent. Defendants
12
infringed the 601 Patent with reckless disregard for Plaintiffs patent rights.
13
Defendants knew, or it was so obvious that Defendants should have known, that
14
their actions constituted infringement of the 601 Patent. Defendants acts of
15
infringement of the 601 Patent were not consistent with the standards of
16
commerce for its industry.
17
26. As a direct and proximate result of Defendants acts of infringement,
18
Defendants have derived and received gains, profits, and advantages in an amount
19
that is not presently known to Plaintiff.
20
27. Pursuant to 35 U.S.C. 284, Plaintiff is entitled to damages for
21
Defendants infringing acts and treble damages together with interest and cost as
22
fixed by this court.
23
28. Pursuant to 35 U.S.C. 285, Plaintiff is entitled to reasonable
24
attorneys fees for the necessity of bringing this claim.
25
COMPLAINT
9
1 29. Pursuant to 35 U.S.C. 289, Plaintiffs are entitled to recover

2 Defendants total profits from Defendants infringement.
3 30. Due to the aforesaid infringing acts, Plaintiff has suffered great and
4 irreparable injury, for which Plaintiff has no adequate remedy at law.
5 31. Defendants will continue to infringe Plaintiffs patent rights and
6 Plaintiff will continue to suffer irreparable harm unless enjoined by this Court.
7 DEMAND FOR JURY TRIAL
8 32. Plaintiff hereby demands a jury trial on all claims, damages, and any other
9 issues presented herein that are triable to a jury.
10 PRAYER FOR RELIEF
11 WHEREFORE, Plaintiff demands entry of a judgment against the Defendants
12 as follows:
13 1. For a judgment declaring that Defendants infringed on Plaintiffs 601
14 Patent under 35 U.S.C. 271;
15 2. For a judgment declaring that Defendants willfully and deliberately
16 infringed Plaintiffs 601 Patent;
17 3. For a preliminary and permanent injunction enjoining Defendants, its
18 respective officers, directors, agents, servants, employees, attorneys, and those
19 persons in active concert or participation with Defendant, from making, using,
20 selling, offering to sell, and/or import the Infringing Products and any products
21 that are not colorably different therefrom, and from infringing the 601 Patent in
22 violation of 35 U.S.C. 271;
23 4. For an order requiring Defendants to deliver and be impounded during
24 the pendency of this action all material in Defendants possession, custody or
25 control that include or incorporate products that infringe Plaintiffs 601 Patent
COMPLAINT
10
1 rights, including but not limited to, any products, containers, packages, labels and
2 advertisements in their possession or under their control utilizing Plaintiffs
3 design patent, or any simulation, reproduction, counterfeit, copy, or colorable
4 imitation thereof;
5 5. Directing that the Defendants report to this Court within thirty (30)
6 days after a permanent injunction is entered to show its compliance with
7 paragraphs 3 and 4 above;
8 6. Directing such other relief as the Court may deem appropriate to
9 prevent the trade and public, or individual members thereof, from gaining the
10 erroneous impression that the Plaintiff authorized or approved any products
11 manufactured, sold, or otherwise circulated or promoted by the Defendants or that
12 such products are in any way related to the Plaintiff;
13 7. For all gains, profits and advantages derived by Defendants by
14 Defendants infringement of the 601 Patent in violation of 35 U.S.C. 271, and
15 the Defendants pay to Plaintiff all damages suffered by Plaintiff and/or
16 Defendants total profits from such infringement pursuant to 35 U.S.C. 284 and
17 289;
18 8. Ordering an independent accountant to conduct an accounting of all of
19 Defendants financial records relating to the infringing activities in order to
20 determine the sums of money owed to Plaintiff. Upon a determination of sums
21 due to Plaintiff, demand is made that those sums be paid to Plaintiff;
22 9. For a judgment awarding Plaintiff compensatory damages as a result of
23 Defendants infringement of Plaintiffs 601 Patent, together with interest and
24 costs, and in no event less than a reasonable royalty;
25
COMPLAINT
11
1 10. For judgment awarding Plaintiff treble damages and/or exemplary

2 damage because of Defendants willful conduct pursuant to 35 U.S.C. 284;
3 11. Awarding to the Plaintiff its reasonable attorneys fees and
4 investigative fees pursuant to 35 U.S.C. 285;
5 12. Awarding to the Plaintiff its pre-judgment and post-judgment interest
6 and costs in bringing this action against Defendants; and
7 13. Awarding other such relief to the Plaintiff as this Court deems just.
8
9 DATED: 12/12/2017 Respectfully submitted,

10
11
12
13
14
Attorney for Peter Kao
15
16
17
18
19
20
21
22
23
24
25
COMPLAINT
12
Case 2:17-cv-08934 Document 1-1 Filed 12/12/17 Page 1 of 14 Page ID #:13
EXHIBIT 1
EXHIBIT 2
12/8/2017 Snow Monster
Caseon2:17-cv-08934 Document
Instagram: Fun fact: It took us over a year 1-1 Filed design
to painstakingly 12/12/17
and developPage 6 of
every detail on 14 Page
this unique giant ID
light#:18
bulb jar for our custom
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lana.sodre I would like one
cemeteryroses Honestly my fave jar
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itzel_madrid91 Take me you owe me a
new cup @mikeybmessiah
chillj24 @jr_steph1 the BEST boba place
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thai tea!!! a must! Price was
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Kao v. Snow Monster - Complaint

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Case 2:17-cv-08934 Document 1 Filed 12/12/17 Page 1 of 12 Page ID #:1

Tommy Wang (SBN: 272409)

19 PLAINTIFF PETER KAO (hereinafter Plaintiff) hereby files this

1 29. Pursuant to 35 U.S.C. 289, Plaintiffs are entitled to recover

1 10. For judgment awarding Plaintiff treble damages and/or exemplary

9 DATED: 12/12/2017 Respectfully submitted,

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