Case 2:20-cv-10741 Document 1 Filed 11/24/20 Page 1 of 25 Page ID #:1

1 Louis F. Teran (SBN 249494)

lteran@slclg.com
2
SLC LAW GROUP
3 1055 E. Colorado Blvd., Suite #500
Pasadena, CA 91106
4
Telephone: (818) 484-3217 x200
5 Facsimile: (866) 665-8877
6
Attorneys for Plaintiff
7 TRUSTEE OF THE SUMMERS FAMILY TRUST
8 TA NEAK PRODUCTS BUFF WA PTY, LTD
9
10
UNITED STATES DISTRICT COURT
11
CENTRAL DISTRICT OF CALIFORNIA
12
13
TRUSTEE OF THE SUMMERS Case No.: 2:20-cv-10741
14 FAMILY TRUST TA NEAK
15 PRODUCTS BUFF WA PTY, LTD., COMPLAINT FOR:
an Australian proprietary limited 1) TRADEMARK INFRINGEMENT
16 company,
2) TRADE DRESS INFRINGEMENT
17
Plaintiff, 3) DESIGN PATENT INFRINGEMENT
18
19 v. 4) COMMON LAW UNFAIR
COMPETITION
20 NATIONAL DISTRIBUTION
5) TORTIOUS INTERFERENCE
21 WAREHOUSE, INC., D/B/A WITH PROSPECTIVE ECONOMIC
TEACHER’S CHOICE, a New York ADVANTAGE
22 corporation,
23
DEMAND FOR JURY TRIAL
24 Defendant.
25
26
27
28

1
COMPLAINT
 Case 2:20-cv-10741 Document 1 Filed 11/24/20 Page 2 of 25 Page ID #:2

1 The Trustee of the Summers Family Trust TA Neak Products Buff WA Pty, Ltd.
2 (“Plaintiff”), by and through its attorneys of record, complains against Defendant National
3 Distribution Warehouse, Inc., d/b/a Teacher’s Choice (“Defendant”) alleging as follows:
4 JURISDICTION AND VENUE
5 1. This is a civil action against Defendant for trademark infringement, trade
6 dress infringement, unfair competition, tortious interference, and patent infringement.
7 2. This court has subject matter jurisdiction under the Lanham Act, 15 U.S.C.
8 §§1051 et seq., 28 U.S.C. §1338(a)-(b), and supplemental jurisdiction over the remaining
9 claims pursuant to 28 U.S.C. §1367.
10 3. Venue is proper in this district under 28 U.S.C. §1391(b)-(c) and 28 U.S.C.
11 §§1400(a), in that the claims arise in this Judicial District, the Defendant transacts
12 business in this Judicial District, and the injury suffered by Plaintiff took place in this
13 Judicial District. Defendant is subject to the general and specific personal jurisdiction of
14 this Court because of their contacts with the State of California.
15 4. This Court has personal jurisdiction over Defendant. Amongst other things,
16 Defendant has engaged in direct, contributory, or vicarious trademark and trade dress
17 infringement, or have otherwise induced trademark infringement in this judicial district.
18 Further, Defendants have engaged in continuous and systematic business in California,
19 and upon information and belief, derive substantial revenues from commercial activities in
20 California. Specifically, Defendants have (1) designed, manufactured, sourced, imported,
21 offered for sale, sold, distributed, or shipped infringing merchandise to persons within this
22 State in the ordinary course of trade; (2) engaged in acts or omissions outside of this State
23 causing injury within the State; or (3) otherwise made or established contacts with this
24 State sufficient to permit exercise of persona jurisdiction.
25 PARTIES
26 5. Plaintiff is an Australian proprietary limited company doing business under
27 the federally registered trademark “Owlconic” and a principal place of business in
28 Australia.

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1 6. Defendant is a corporation organized under the laws of the state of New

2 York, doing business under its federally registered trademark “Teacher’s Choice”, and
3 having a principal place of business in New York.
4 STATEMENT OF FACTS
5 7. Plaintiff is an industry leader in the design of educational clocks. Over the
6 years, Plaintiff has become widely recognized as the preeminent supplier of educational
7 clocks for children to learn how to read a clock.
8 8. Plaintiff sells its products primarily through the e-commerce website located
9 at www.amazon.com (“Amazon”). Plaintiff’s educational clocks are sold throughout the
10 United States and throughout the world.
11 9. To distinguish itself from competitors, Plaintiff’s educational clocks are
12 uniquely configured, distinctly colored, and employ distinct patterns, among other
13 features.
14 10. More specifically, Plaintiff’s educational clocks include a circle with a
15 horizontal line and a vertical line passing through and crossing one another at the center of
16 the circle to form four (4) quadrants each of which are colored a different color. Even
17 more, said circle is placed at the center of Plaintiff’s educational clocks.
18 11. In addition to the circle, Plaintiff’s educational clock includes other
19 uniquely configured patterns.
20 12. True and correct pictures of Plaintiff’s educational clocks with the circle is
21 attached hereto as Exhibit A.
22 13. Plaintiff has spent a substantial time, effort, and resources to develop the
23 distinct and unique design of its educational clocks which consumers recognize and
24 associate with authentic, high-quality educational clocks designed and made by Plaintiff.
25 14. Plaintiff also expends a substantial time, effort, and financial resources in
26 promoting and marketing its products and brand.
27 15. Plaintiff considers the circle on its educational clocks, as described above,
28 to me its trademark (hereinafter referred to as “Trademark”).

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1 16. While Plaintiff’s Trademark is not federally registered, Plaintiff has used it
2 continuously since 2017 as its trademark.
3 17. Plaintiff’s Trademark is distinctive and is instantly recognizable as being
4 associated with Plaintiff and Plaintiff’s educational clocks.
5 18. Plaintiff considers the overall design of its educational clocks to be its trade
6 dress (hereinafter referred to as “Trade Dress”).
7 19. While Plaintiff’s Trade Dress is not federally registered, Plaintiff has used it
8 continuously since 2017 as its trade dress.
9 20. Plaintiff’s Trade Dress is distinctive and is instantly recognizable as being
10 associated with Plaintiff and Plaintiff’s educational clocks.
11 21. Each new product developed by Plaintiff has a similar Trade Dress and
12 Trademark, such that they are instantly recognizable as being a member of Plaintiff’s
13 family of products.
14 22. Plaintiff constantly seeks to associate in the minds of its distributors,
15 retailers, and the consuming public its image as a provider of quality educational clocks.
16 Its Trade Dress, Trademark, and unique product design are intended to achieve (and have
17 achieved) that end. In fact, the design and features of Plaintiff’s educational clocks have
18 received widespread recognition among the general public and those in the educational
19 products industry.
20 23. Consumers in the United States and in California associate Plaintiff’s Trade
21 Dress and Trademark exclusively as a source identifier for Plaintiff’s educational clocks.
22 Such Trade Dress and Trademark has developed substantial goodwill belonging
23 exclusively to Plaintiff.
24 24. In addition to its Trademark and Trade Dress, Plaintiff has an interest in
25 U.S. Design Patent No. D875,591 (hereinafter referred to as “the ‘591 Patent”) which
26 protects the unique ornamental design of Plaintiff’s educational clocks.
27 25. A true and correct copy of the ‘591 Patent is attached hereto as Exhibit B.
28

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1 Defendant’s Wrongful Conduct

2 26. Defendant is unfairly competing with Plaintiff by infringing Plaintiff’s
3 Trademark, Trade Dress, and the ‘591 Patent.
4 27. Without Plaintiff’s authorization, Defendant made, used, offered for sale,
5 sold, promoted, distributed, and/or imported into the United States educational clocks
6 having designs and marks that are, in the eye of the ordinary observer, substantially the
7 same as and confusingly similar to Plaintiff’s Trademark, Trade Dress, and design
8 covered by the ‘591 Patent (hereinafter referred to as the “Infringing Products”).
9 28. Defendant has and continues to promote, distribute, offer for sale, and sell
10 Infringing Products through its website and through Amazon. Attached hereto as Exhibit
11 C is a true and correct copy of Defendant’s Amazon listing for the Infringing Product.
12 29. In the eyes of an ordinary observer, Defendant’s Infringing Products are
13 indistinguishable from Plaintiff’s patented design and thus infringe the ‘591 Patent.
14 30. The similarities between Plaintiff’s distinctive Trade Dress and Defendant’s
15 Infringing Products is not a coincidence. On information and belief, Defendant has
16 intentionally copied Plaintiff’s Trademark, Trade Dress and patented design to capitalize
17 upon the goodwill associated with Plaintiff’s products and Plaintiff’s success in
18 developing its unique educational clocks and to confuse consumers into believing that
19 there is an association between Plaintiff’s educational clocks and Defendant’s Infringing
20 Products and/or to compete unfairly with Plaintiff.
21 31. Defendant’s infringement has and continues to damage Plaintiff by causing
22 it to lose business and by causing confusion in the marketplace.
23 FIRST CAUSE OF ACTION
24 Trademark Infringement
25 32. Plaintiff re-alleges each and every allegation set forth above and
26 incorporates them by reference as if fully set forth herein.
27 33. Plaintiff is the legal owner of the Trademark as set forth in detail in the
28 foregoing paragraphs.

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1 34. Plaintiff’s trademark is valid, protectable, and distinctive. Plaintiff has

2 continuously used to promote its goods under its Trademark since 2017.
3 35. Defendant has used a mark that is confusingly similar to Plaintiff’s
4 Trademark in violation of the Lanham Act. Indeed, Defendant’s use of a confusingly
5 similar imitation of Plaintiff’s Trademark is likely to cause confusion, deception, and
6 mistake by creating the false and misleading impression that Defendant’s educational
7 clocks are manufactured, produced, distributed, endorsed, sponsored, approved, or
8 connected with Plaintiff. Plaintiff is informed and believes and thereon alleges that
9 Defendant utilized Plaintiff’s Trademark in order to create consumer confusion and have
10 in fact created consumer confusion including but not limited to initial interest confusion
11 and confusion as to affiliation or association between Plaintiff on one hand and Defendant
12 on another.
13 36. At no time did Defendant have the authorization, legal right, or consent to
14 engage in such activities in disregard of Plaintiff’s rights in Plaintiff’s Trademark.
15 37. Defendant’s actions complained of herein were intentional, willful, and
16 malicious with a deliberate intent to trade on the goodwill associated with Plaintiff’s
17 Trademark.
18 38. Plaintiff is informed and believes and thereon alleges that as a proximate
19 result of the unfair advantage accruing to Defendant’s business from deceptively trading
20 on Plaintiff’s advertising, sales, and consumer recognition, Defendant has made
21 substantial sales and profits in amounts to be established according to proof.
22 39. As a proximate result of the unfair advantage accruing to Defendant’s
23 business from deceptively trading on Plaintiff’s advertising, sales, and consumer
24 recognition, Plaintiff has been damaged and deprived of substantial sales and has been
25 deprived of the value of its trademark as a commercial asset, in amounts to be established
26 according to proof.
27 40. Plaintiff is informed and believes, and thereon alleges that, unless restrained
28 by the Court, Defendant will continue to infringe Plaintiff’s Trademark, thus, engendering
a multiplicity of judicial proceedings, and that pecuniary compensation will not afford

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1 Plaintiff adequate relief for the damage to its trademark in the public perception. Further,
2 Plaintiff is informed and believes and thereon alleges that in the absence of injunctive
3 relief, customers are likely to continue to be mistaken or deceived as to the true source,
4 origin sponsorship, and affiliation of Defendant and its goods.
5 41. Plaintiff is informed and believes and thereon alleges that Defendant’s acts
6 were committed, and continue to be committed, with actual notice of Plaintiff’s exclusive
7 rights and with an intent to cause confusion, to cause mistake, and/or to deceive, and
8 cause injury to the reputation and goodwill associated with Plaintiff’s Trademark. At a
9 minimum, Plaintiff is entitled to injunctive relief and to recover Defendant’s profits,
10 whichever is greater, together with Plaintiff’s attorneys’ fees. In addition, Plaintiff is
11 entitled to an order requiring destruction of all infringing materials in Defendants’
12 possession.
13 SECOND CAUSE OF ACTION
14 Trade Dress Infringement
15 42. Plaintiff re-alleges each and every allegation set forth above and
16 incorporates them by reference as if fully set forth herein.
17 43. Plaintiff has established trade dress rights in the design of its educational
18 clocks.
19 44. Plaintiff’s trade dress embodied in its distinctive educational clock design is
20 not functional and was chosen to allow consumers to quickly identify the source of the
21 products and create a unique identity in the marketplace.
22 45. Plaintiff’s trade dress is inherently distinctive because its unique features
23 naturally serve to identify Plaintiff as the source of its products to consumers.
24 46. Through its extensive promotional advertising, marketing, and sales,
25 Plaintiff’s trade dress in its product design has acquired distinctiveness in the market.
26 47. Defendant has sold, offered for sale, distributed, and advertised educational
27 clocks in the marketplace that are infringing on Plaintiff’s trade dress, which are nearly
28 identical or confusingly similar to Plaintiff’s trade dress.

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1 48. As described above, Defendant’s infringing educational clocks share

2 striking similarities and some virtually identical elements as Plaintiff’s educational clocks.
3 49. Upon information and belief, Defendant deliberately copied Plaintiff’s trade
4 dress to benefit from Plaintiff’s goodwill, reputation, and success in the industry.
5 50. By using Plaintiff’s trade dress in the design and advertising of Defendant’s
6 educational clocks as alleged above, Defendant has infringed upon Plaintiff’s trade dress
7 and goodwill.
8 51. Upon information and belief, Defendant’s copying of Plaintiff’s trade dress
9 was intentional and in bad faith. Defendant, with knowledge of Plaintiff’s trade dress,
10 deliberately marketed educational clocks that are confusingly similar to Plaintiff’s trade
11 dress embodied in Plaintiff’s educational clocks.
12 52. Defendant’s acts of trade dress infringement have caused and continue to
13 cause damages and injury to Plaintiff.
14 53. Plaintiff may recover for its damages an award to compensate Plaintiff for
15 the injuries and damages it has sustained as a result of Defendant’s conduct, which
16 violates section 43(a) of the Lanham Act.
17 54. Because Defendant’s acts were intentional, willful, and/or deliberate,
18 Plaintiff is entitled to an award of treble damages under §43(a) of the Lanham Act.
19 55. Plaintiff is entitled to an award of pre-judgment interest for damages
20 sustained as a result of Defendant’s wrongful conduct.
21 56. Defendant’s wrongful, malicious, fraudulent, deliberate, willful, intentional,
22 and/or incredible conduct makes this case an exceptional case, entitling Plaintiff to an
23 award of attorneys’ fees and costs under the Lanham Act.
24 57. Plaintiff has no adequate remedy at law, has suffered and continues to suffer
25 irreparable harm as a result of Defendant’s acts, and is therefore entitled to a preliminary
26 and permanent injunction to enjoin Defendant’s wrongful conduct.
27
28

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1 THIRD CAUSE OF ACTION

2 Design Patent Infringement
3 58. Plaintiff re-alleges each and every allegation set forth above and
4 incorporates them by reference as if fully set forth herein.
5 59. Plaintiff has an interest in United States Design Patent No. D875,591 (“the
6 ‘591 Patent”).
7 60. Defendant has made, used, offered for sale, and/or imported into the United
8 States and continues to make, use, offer for sale, and/or import into the United States
9 educational clocks that infringe Plaintiff’s ‘591 Patent without Plaintiff’s authorization.
10 Defendant’s actions constitute patent infringement under 35 U.S.C. §271(a).
11 61. Upon information and belief, Defendant has been and is still inducing others
12 to infringe Plaintiff’s ‘591 Patent. Defendant’s actions constitute induced infringement
13 under 35 U.S.C. §271(b).
14 62. Plaintiff has no adequate remedy at law, has suffered and continues to suffer
15 irreparable harm as a result of Defendant’s actions, and is therefore entitled to a
16 preliminary and permanent injunction to enjoin Defendant’s infringements of Plaintiff’s
17 ‘591 Patent.
18 63. Plaintiff is entitled to recover all damages caused by Defendant’s
19 infringement under 35 U.S.C. § 284 and 289.
20 64. Defendant’s infringement of Plaintiff’s ‘591 Patent is willful and represents
21 a reckless disregard of Plaintiff’s patent rights. Accordingly, Plaintiff is entitled to treble
22 damages and attorneys’ fees and costs incurred in this action, along with prejudgment
23 interests under 35 U.S.C. §284 and 285.
24 FOURTH CAUSE OF ACTION
25 (Unfair Competition – state law)
26 65. Plaintiff re-alleges each and every allegation set forth above and
27 incorporates them by reference as if fully set forth herein.
28 66. Plaintiff was the first to use its distinctive educational clock design and trade
dress. Plaintiff has extensively and continuously promoted and used its trade dress in the

9
 Case 2:20-cv-10741 Document 1 Filed 11/24/20 Page 10 of 25 Page ID #:10

1 United States since 2017. As a result of Plaintiff’s continuous promotion and sales of its
2 educational clocks bearing the distinctive trade dress for several years, the trade dress has
3 become widely known and Plaintiff has been identified in the public mind as the
4 manufacturer of the products with which its trade dress is associated.
5 67. Defendant, with knowledge of and intentional disregard for Plaintiff’s
6 rights, continues to advertise, promote, and sell products employing Plaintiff’s trade dress,
7 or colorable or confusing imitation thereof. Plaintiff is entitled to damages for the period
8 of time Defendant traded off of Plaintiff’s well-known trade dress. Defendant’s acts are
9 likely to cause, have caused, and will continue to cause confusion as to the source and/or
10 sponsorship of Plaintiff’s educational clocks.
11 68. In taking the above actions, Defendant has participated in unfair
12 competition. The actions alleged above, constitute a misappropriation and infringement
13 of Plaintiff’s trade dress rights in its educational clocks and accompanying goodwill and
14 reputation under the common law of the state of California, and constitute acts of unfair
15 competition.
16 69. As alleged above, Plaintiff has distinctive and protectable rights.
17 Defendant’s actions have caused or cause a likelihood of confusion among consumers in
18 the marketplace and therefore constitute unfair competition.
19 70. Defendants’ acts of infringement have caused and continue to cause
20 damages and injury to Plaintiff for which Plaintiff must be compensated. Such infringing
21 activities are willful and intentional, thereby justifying an award of exemplary damages.
22 FIFTH CAUSE OF ACTION
23 (Tortious Interference With Prospective Economic Advantage – Common Law)
24 71. Plaintiff re-alleges each and every allegation set forth above and
25 incorporates them by reference as if fully set forth herein.
26 72. Plaintiff developed its educational clocks over the course of a substantial
27 amount of time and at a significant expense.
28

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 Case 2:20-cv-10741 Document 1 Filed 11/24/20 Page 11 of 25 Page ID #:11

1 73. Plaintiff’s educational clocks are unique, which has led to positive user
2 reviews and recognition of Plaintiff’s educational clocks in the marketplace, especially in
3 the educational products category.
4 74. Plaintiff has an economic advantage of being the first to market educational
5 clocks with Plaintiff’s unique design.
6 75. Through its wrongful conduct, Defendant was able to introduce knock-off
7 educational clocks that are nearly identical to Plaintiff’s educational clocks to the market
8 and at a cheaper cost than if Defendant had legitimately designed and developed its own
9 competing educational clock. The wrongful conduct has significantly reduced the amount
10 of time that Plaintiff should have enjoyed being the exclusive seller of such educational
11 clocks.
12 76. Defendant’s conduct was knowingly in violation of law.
13 77. As a result of this conduct, Plaintiff has suffered an irreparable harm.
14 Unless the Court enjoins Defendant’s conduct, Plaintiff will continue to suffer irreparable
15 harm.
16
17 PRAYER FOR RELIEF
18 WHEREFORE, Plaintiff respectfully requests the following relief against
19 Defendant as follows:
20 1. Defendant’s profits;
21 2. Actual damages;
22 3. Punitive damages;
23 4. Statutory damages;
24 5. Trebling of damages for a willful violation;
25 6. Injunctive relief;
26 7. The impoundment and destruction of all infringing goods;
27 8. Attorneys’ fees;
28 9. Costs of suit; and
10. For such other and further relief as the Court may deem just and equitable.

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 Case 2:20-cv-10741 Document 1 Filed 11/24/20 Page 12 of 25 Page ID #:12

1
2
3 DATED: November 24, 2020
4
5 By:___________________________
6 Louis F. Teran
7 Attorney for Plaintiff Trustee of the Summers
8 Family Trust TA Neak Products Buff WA
9 Pty, Ltd.
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1 DEMAND FOR JURY TRIAL

2 Plaintiff hereby demands trial by jury of all issues so triable under the law.
3
4
5 DATED: November 24, 2020
6
7 By:___________________________
8 Louis F. Teran
9 Attorney for Plaintiff Trustee of the Summers
10 Family Trust TA Neak Products Buff WA
11 Pty, Ltd.
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Case 2:20-cv-10741 Document 1 Filed 11/24/20 Page 14 of 25 Page ID #:14

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EXHIBIT B
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