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Smart Marketing v. Walmart - Complaint
Smart Marketing v. Walmart - Complaint
Smart Marketing v. Walmart - Complaint
v. _____________________
Defendants.
COMPLAINT
Plaintiff Smart Marketing, Inc., d/b/a Kate Aspen (“Kate Aspen”) files this
Complaint against Defendants Walmart, Inc., Wal-Mart.com USA, LLC, and Wal-
1. Kate Aspen brings this action seeking injunctive and monetary relief
bottle openers.
THE PARTIES
distinctively designed lines of baby shower, bridal shower, and wedding favors and
Case 1:18-cv-03020-LMM Document 1 Filed 06/21/18 Page 2 of 17
innovative baby gifts through its network of authorized online retailers and via its
direct-to-consumer websites.
Arkansas with its principal place of business located at 702 SW 8th Street,
Georgia and may be served with process by delivering a summons and complaint
Lawrenceville, GA 30046-4805.
California limited liability company with its principal place of business located at
124 West Capitol Avenue, Suite 1900, Little Rock, AR, 72201. Wal-Mart.com is
2
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and may be served with process by delivering a summons and complaint to its
GA 30046-4805.
6. This Court has personal jurisdiction over the Defendants because they
are registered and transact business in the State of Georgia and have caused
tortious injury by act or omission in Georgia. The Defendants offer their products
and services via the Internet and in well over 100 retail locations in Georgia, and
ship their products nationwide, including into Georgia. Samples of the infringing
are deemed to reside in this judicial district and because a substantial part of the
events or omissions giving rise to the claim occurred in this judicial district.
which gives the federal district courts original and exclusive jurisdiction over
9. This Court also has supplemental jurisdiction over Kate Aspen’s state
law claims pursuant to 28 U.S.C. § 1367 because they are so related to the claims
3
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under the Copyright Act as to form part of the same case or controversy under
FACTUAL ALLEGATIONS
retailer of products for weddings, bridal and baby showers, and many other special
life events. Kate Aspen began designing truly unique favors for weddings in 2004
and has been keeping up with customer demands by expanding into other party
favors as well as gifts and décor and finishing touches for life’s celebratory events
ever since.
11. Kate Aspen’s products are sold through Kate Aspen’s network of
brick and mortar stores as well as directly to the consumer via Kate Aspen’s
websites.
12. Kate Aspen’s Authorized Retailers offer Kate Aspen products for sale
and fulfill any orders that are placed for Kate Aspen products exclusively through
Kate Aspen.
13. Kate Aspen only allows Authorized Retailers to sell genuine and
authentic Kate Aspen products in order to protect its brand and intellectual
4
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protect its unique intellectual property. Specifically, Kate Aspen is the exclusive
owner of copyright registrations associated with its pineapple bottle opener and
15. Created in 2015, the pineapple bottle opener (the “Kate Aspen
opener with a pineapple shaped handle made in a gold-colored metal. A fair and
Exhibit 1.
16. The Kate Aspen Pineapple Work was first published on January 7,
2016 and was registered under U.S. Registration No. VA00021505379 on April 13,
2018. A true and correct copy of the Library of Congress catalog entry showing the
17. Created in 2014, the flamingo bottle opener (the “Kate Aspen
shaped handle made in a gold-colored metal. A fair and accurate photograph of the
5
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18. The Kate Aspen Flamingo Work was first published on February 19,
2015 and was registered under U.S. Registration No. VA0002099233 on April 13,
2018. A true and correct copy of the certificate of registration for the Kate Aspen
Flamingo Work is attached hereto as Exhibit 4. The Kate Aspen Pineapple Work
and Kate Aspen Flamingo Work are collectively referred to as the “Kate Aspen
Works.”
19. The Kate Aspen Works are wholly original, and Kate Aspen is the
exclusive owner of all right, title, and interest, including all rights under copyright,
derivative works from or otherwise make any use of its copyrighted products,
and in their retail locations, non-authentic, infringing, and exact copy knock-off
(the “Websites”) display and provide access to materials that infringe Kate Aspen’s
6
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copyrights in the Kate Aspen Works. The following is a list of the infringing
materials (“Infringing Works”) and the URLs at which the infringing materials are
accessible on the Websites. True and correct copies of the relevant webpages are
23. Defendants also display and sell the Infringing Works in their brick
Defendants’ Duluth, Georgia store and purchased the Infringing Work. Fair and
are attached hereto as composite Exhibit 6. A true and correct copy of the receipt
7
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physical possession of or otherwise viewed the Kate Aspen Works and willfully
copied them to create the Infringing Works. That Defendants or their suppliers
copied the Kate Aspen Works when they created the Infringing Works is
evidenced by (a) the striking similarities among the products, which cannot
possibly be explained other than as a result of copying, and (b) Defendants’ access
to the Kate Aspen Works through Kate Aspen’s national distribution and online
retail presence.
26. As can be seen from viewing and comparing Exhibits 1, 3, and 6, the
Infringing Works are identical and/or substantially similar to the copyrighted Kate
Aspen Works. Like the Kate Aspen Works, the Infringing Works are gold-metal
8
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9
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10
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27. Since Defendants copied the Kate Aspen Works to create the
Infringing Works, they have sold the Infringing Works in-store and online
throughout the United States to the general public, including in Georgia and in this
district.
including but not limited to, lost sales, lost profits, and loss of goodwill.
29. Defendants have never accounted to or otherwise paid Kate Aspen for
30. At or around the time of the filing of this complaint, Kate Aspen
wrote to Defendants ordering them to cease and desist the use of the copyrighted
31. Defendants’ acts are causing, and unless restrained, will continue to
cause damage and immediate irreparable harm to Kate Aspen for which Kate
COUNT I
Copyright Infringement
32. Kate Aspen restates and realleges the allegations above as if fully set
forth herein.
11
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33. The Kate Aspen Works are original works of visual art containing
copyrightable subject matter for which copyright protection exists under the
34. Kate Aspen, at all relevant times, has been the sole creator and
exclusive owner of the Kate Aspen Works that are the subject of the registered
35. Kate Aspen has been and is the owner and proprietor of all right, title,
infringing Kate Aspen’s exclusive rights under the copyrights in violation of the
38. Defendants knew or reasonably should have known that the Kate
Aspen Works were protected by copyright such that the Defendants’ copyright
12
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are continuing to make, substantial profits and/or monetary gains to which they are
infringement, Kate Aspen has been harmed and is entitled to damages and
accounting to Kate Aspen for any and all gains, profits, and benefits derived from
Defendants’ acts of infringement and ordering that all such amounts be deemed to
U.S.C. § 504(c), for each of the Kate Aspen Works and for such other amount as
43. Kate Aspen is also entitled to attorneys’ fees and costs pursuant to 17
U.S.C. § 505.
Kate Aspen has sustained and will continue to sustain substantial, immediate, and
13
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Defendant will continue to infringe the Kate Aspen Works. Plaintiff therefore is
COUNT II
Georgia Uniform Deceptive Trade Practices Act (O.C.G.A. § 10-1-370)
45. Kate Aspen restates and realleges the allegations above as if fully set
forth herein.
46. Defendants’ actions are likely to cause, and have already caused,
injunctive relief.
O.C.G.A. § 10-1-373(b)(2).
14
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COUNT III
Unfair Competition Under Common Law
50. Kate Aspen restates and realleges the allegations above as if fully set
forth herein.
be proved at trial.
COUNT IV
O.C.G.A. § 13-6-11
53. Kate Aspen restates and realleges the allegations above as if fully set
forth herein.
unnecessary trouble and expense and constitutes bad faith and stubborn
litigiousness.
JURY DEMAND
15
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in Plaintiff’s favor on each and every claim for relief set forth above and award
16
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17
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EXHIBIT 1
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EXHIBIT 2
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Public Catalog
Copyright Catalog (1978 to present)
Search Request: Left Anchored Name = smart marketing, inc.
Search Results: Displaying 17 of 27 entries
Contact Us | Request Copies | Get a Search Estimate | Frequently Asked Questions (FAQs) about Copyright |
Copyright Office Home Page | Library of Congress Home Page
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EXHIBIT 3
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EXHIBIT 4
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Registration #: VA0002099233
Shirley Wang
Suite A
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Certificate of Registration
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Acting United States Register of Copyrights and Director
April 13, 2018
Title
Completion/Publication
Author
Copyright Claimant
Email: copyi'ightoffice@theaspenbrands.com
Telephone: (678)282-0053
Suite A
Certification
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Copyright Office notes: Basis for Registration: Graphic and sculptural features identified separately from
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EXHIBIT 5
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EXHIBIT 6
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EXHIBIT 7
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JS44 (Rev. 6/2017 NDGA) CIVIL COVER SHEET
The JS44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by
local rules of court. This form is required for the use of the Clerk of Court for the purpose of initiating the civil docket record. (SEE INSTRUCTIONS ATTACHED)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND
INVOLVED
(c) ATTORNEYS (firm name, address, telephone number, and ATTORNEYS (IF KNOWN)
E-MAIL ADDRESS)
Eileen H. Rumfelt
Miller & Martin, PLLC
Regions Plaza, Suite 2100; 1180 W. Peachtree St., NW
Atlanta, GA 30309-3407
(404) 962-6100 / eileen.rumfelt(gmillernnartin.com
□ 1 U.S. GOVERNMENT
PLAINTIFF
0 3 FEDERAL QUESTION
(U.S. GOVERNMENT NOT A PARTY)
□. □ 1 CITIZEN OF THIS STATE INCORPORATED OR PRINCIPAL
PLACE OF BUSINESS IN THIS STATE
□ 2 U.S. GOVERNMENT
DEFENDANT
□ 4 DIVERSITY
(INDICATE CITIZENSHIP OF PARTIES
□ 2 CITIZEN OF ANOTHER STATE □s a INCORPORATED AND PRINCIPAL
PLACE OF BUSINESS IN ANOTHER STATE
IN ITEM III)
□3 □ 3 CITIZEN OR SUBJECT OF A
FOREIGN COUNTRY
FOREIGN NATION
0 1 ORIGINAL
PROCEEDING
□ 2 REMOVED FROM
STATE COURT
□ 3 REMANDED FROM
APPELLATE COURT
□ 4 REINSTATED OR
REOPENED
□s TRANSFERRED FROM
ANOTHER DISTRICT
(Specify Distnct)
□ MULTIDISTRICT
6 LITIGATION-
TRANSFER
□ APPEAL TO DISTRICT JUDGE
7 FROM MAGISTRATE JUDGE
JUDGMENT
□ MULTIDISTRICT
8 LITIGATION -
DIRECT FILE
V. CAUSE OF ACTION (cite the u.s. civil statute under which you are filing and write a brief statement of cause - do not cite
JURISDICTIONAL STATUTES UNLESS DIVERSITY)
Plaintiff is seeking injunctive and monetary relief for Defendants' infringement of Plaintiff's copyright in its pineapple and
flamingo bottle openers in violation of the Copyright Act. 17 U.S.C. Sections 101 et seq.
CONTINUED ON REVERSE
FOR OFFICE USE ONLY
g
110 INSURANCE
120 MARINE IMMIGRATION - "0" MONTHS DISCOVERY TRACK Wa^-------------------------------------------
130 MILLER ACT □ 462 NATURALIZATION APPLICATION □ 870 TAXES (U S. Plaintiff or Defendant)
140 NEGOTIABLE INSTRUMENT □ 465 OTHER IMMIGRATION ACTIONS Q 871 IRS-THIRD PARTY 26 use 7609
151 MEDICARE ACT
160 STOCKHOLDERS' SUITS PRISONER PETITIONS - ”0” MONTHS DISCOVERY OTHER STATUTES - '■4" MONTHS DISCOVERY
190 OTHER CONTRACT TRACK TRACK
195 CONTRACT PRODUCT UABILITY 463 HABEAS CORPUS- Alien Detainee 375 FALSE CLAIMS ACT
196 FRANCHISE 510 MOTIONS TO VACATE SENTENCE 376QuiTam 31 USC 3729(a)
530 HABEAS CORPUS 400 STATE REAPPORTIONMENT
REAL PROPERTY - "4" MONTHS DISCOVERY 535 HABEAS CORPUS DEATH PENALTY 430 BANKS AND BANKING
TRACK 540 MANDAMUS & OTHER 450 COMMERCE/ICC RATES/ETC.
210 LAND CONDEMNATION 550 CIVIL RIGHTS - Filed Pro se 460 DEPORTATION
220 FORECLOSURE 555 PRISON CONDITION(S) - Filed Pro se 470 RACKETEER INFLUENCED AND CORRUPT
230 RENT LEASE & EJECTMENT 560 CIVIL DETAINEE; CONDITIONS OF ORGANIZATIONS
240 TORTS TO LAND CONFINEMENT 480 CONSUMER CREDIT
245 TORT PRODUCT LIABILITY 490 CABLE/SATELLITE TV
290 ALL OTHER REAL PROPERTY PRISONER PETITIONS - "4" MONTHS DISCOVERY 890 OTHER STATUTORY ACTIONS
I RACK 891 AGRICULTURAL ACTS
TORTS • PERSONAL INJURY - ”4" MONTHS □ 550 CIVIL RIGHTS-Filed by Counsel 893 ENVIRONMENTAL MATTERS
DISCOVERY TRACK □ 555 PRISON CONDmON(S) - Filed by Counsel 895 FREEDOM OF INFORMATION ACT
310 AIRPLANE 899 ADMINISTRATIVE PROCEDURES ACT/
315 AIRPLANE PRODUCT LIABILITY FORFEITUREA^ENALTY - ’■4” MONTHS DISCOVERY REVIEW OR APPEAL OF AGENCY DECISION
320 ASSAULT. LIBEL & SLANDER
330 FEDERAL EMPLOYERS' LIABILITY
TRACK
□ 625 DRUG RELATED SEIZURE OF PROPERTY
□ 950 CONSTITUTIONALITY OF STATE STATUTES
362 PERSONAL INJURY - MEDICAL 720 LABOR/MGMT, RELATIONS OTHER STATUTES - “0” MONTHS DISCOVERY
MALPRACTICE 740 RAILWAY LABOR ACT TRACK
□ 365 PERSONAL INJURY - PRODUCT LIABILITY 751 FAMILY and MEDICAL LEAVE ACT □" 896 ARBITRATION
□ 367 PERSONAL INJURY - HEALTH CARE/
PHARMACEUTICAL PRODUCT LIABILITY
□ 368 ASBESTOS PERSONAL INJURY PRODUCT
B 790 OTHER LABOR LITIGATION
791 EMPL. RET. INC. SECURITY ACT
(Confirm / Vacate / Order / Modify)
B
380 OTHER PERSONAL PROPERTY DAMAGE
385 PROPERTY DAMAGE PRODUCT LIABILITY
TRACK
B 830 PATENT
835 PATENT-ABBREVIATED NEW DRUG
BANKRUPTCY - ”0” MONTHS DISCOVERY TRACK APPLICATIONS (ANDA) - a/k/a
Q 422 APPEAL 28 USC 158 Hatch-Waxman cases
□ 423 WITHDRAWAL 28 USC 157
□ 7. EITHER SAME OR ALL OF THE PARTIES AND ISSUES IN THIS CASE WERE PREVIOUSLY INVOLVED IN CASE NO. , WHICH WAS
DISMISSED. This case □ IS □ IS NOT (check one box) SUBSTANTIALLY THE SAME CASE.
L ai IS
s: F ATTORNEY OF RECORD DATE