D Squared v. Bixing - Complaint

Case 2:23-cv-01907-JFC Document 1 Filed 11/03/23 Page 1 of 27
IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA
D SQUARED PLANT TRAPS LLC Case No.: 2:23-CV-1907
Plaintiff, COMPLAINT
vs. JURY TRIAL DEMANDED
GUANGDONG BIXING TRADING CO.,

LTD. d/b/a NATURANOOK STORE,
Defendant.
Plaintiff, D SQUARED PLANT TRAPS LLC (“Plant Traps”), by and through its
undersigned counsel, hereby submits the following Complaint and Demand for Jury Trial against
Defendant, GUANGDONG BIXING TRADING CO., LTD. d/b/a NATURANOOK STORE
(“Naturanook”) and alleges as follows:
I. NATURE OF THE ACTION
1. This is an action for patent infringement arising under the Patent Laws of United
States, 35 U.S.C. § 101 et seq., and for trademark infringement and unfair competition under
federal law and the laws of the Commonwealth of Pennsylvania.
2. This Court has jurisdiction over the federal claims of this action pursuant to 15
U.S.C § 1121, 28 U.S.C. § 1331 and 28 U.S.C. §1338 (a) and over the state claims under 28
U.S.C. § 1338 (b) and further pursuant to its supplemental jurisdiction under 28 U.S.C. § 1367 in
that the state claims are so related to the federal claims as to form part of the same case or
controversy.
II. THE PARTIES
3. Plant Traps is a corporation organized and existing under the laws of the state of
Pennsylvania. Plant Traps has a principal place of business at 115 Crescent Drive, Pittsburgh,
PA 15228. Plant Traps is the owner of the design patent and other intellectual property rights
that are the subject of this Complaint.
4. Naturanook is a business entity organized under Chinese law, the form of which is
unknown. Naturanook has a principal place of business at Room 1508, Building 4 No. 2, Nange
10th Road, Daojiao Town, Dongguan City, Guangdong Province, China, 523000. Upon
information and belief, Naturanook manufactures and distributes gardening products for sale in
the United States.
III. JURISDICTION AND VENUE
5. This action arises from Naturanook’s use, sale, offer for sale, and/or importation
of products and conduct of activities, that infringe Plant Traps’ design patent and trademark.
6. This Court has personal jurisdiction over Naturanook because it does business in
the Commonwealth of Pennsylvania, including in this judicial district, and because it has
intentionally directed its tortious activities toward the Commonwealth of Pennsylvania.
7. Naturanook has committed acts of intellectual property infringement in
Pennsylvania, including this judicial district, and delivered products into the stream of commerce
with the expectation that consumers in Pennsylvania, including this judicial district, will
purchase them.
8. Naturanook continues to sell products, including products that are the subject of
this Complaint to consumers in Pennsylvania, including this judicial district.
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9. Regarding the patent claims, venue is proper in this district under 28 U.S.C.
§ 1400 because Naturanook committed acts and continues to commit acts of infringement and
has a regular and established place of business in this district.
10. Regarding the non-patent claims, venue is proper in this district because
Naturanook is a corporation subject to personal jurisdiction within this judicial district, and
deemed to reside in this district, pursuant to 28 U.S.C. §§ 1391(b)-(d) and (f), because
Naturanook has committed, and continues to commit, acts of infringement in this district.
IV. FACTUAL ALLEGATIONS COMMON TO ALL COUNTS
11. Deborah Holtschlag of Plant Traps is the creator and developer of new designs
including new inventions relating to ornamental brackets that may be used to support potted
plants which Plant Traps named “RailScapes” (“RailScapes Product(s)”).
12. Plant Traps’ unique and innovative products are well known throughout the
United States and foreign countries. RailScapes Products are the first clip-on railing planters
capable of displaying planters mid-railing for layering.
13. Moreover, Plant Traps’ products have captured a large online presence. Its clever
and innovative design of decorative garden products has resulted in a significant social media
following of close to a half a million followers.
14. Plant Traps’ products are currently sold all throughout the United States and in
foreign countries.
15. Plant Traps is the owner of U.S. Trademark Reg. No. 6786256 (“the 256
Registration”) for the mark “PLANT TRAPS” for use in connection with “brackets of metal for
supported potted plants; metal fixtures for securing plotted plants; cantilevered brackets of
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metal.” A true and correct copy of the 256 Registration certificate is attached hereto as
Exhibit 1.
16. Plant Traps is the assignee of the D1,003, 076 design patent entitled “Display
Brackets” (“the ‘076 Patent”). The United States Patent and Trademark Office duly and lawfully
issued the ‘076 Patent to Plant Traps. A true and correct copy of the ‘076 Patent is attached
hereto as Exhibit 2.
17. Plant Traps launched its RailScapes Products on social media for sale on its
website (planttraps.com) on March 10, 2023.
18. As part of its product launch in March 2023, Plant Traps created and published on
its website and social media, advertising and marketing materials describing its RailScapes
Products.
19. As further part of its product launch in March 2023, Plant Traps created and
provided packaging materials that accompanied RailScapes Products sold to its customers,
including text, illustrations, and photographs demonstrating installation and display of the
product.
20. Soon thereafter, on or about April 27, 2023, Naturanook launched sales of an
essentially identical product on Amazon (“Accused Product(s)”).
21. On June 26, 2023, a social media follower reached out to Plant Traps and
identified Naturanook’s Accused Products as being copies of Plant Traps’ RailScapes Products.
The communication is shown below and is identified as Communication 1.
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22. Shortly thereafter, another individual posted on Plant Traps' Facebook page and
commented that they purchased RailScapes products on Amazon, but the RailScapes products
were actually Naturanook's Accused Products. This indicated to Plant Traps that the customer
believed Naturanook’s Accused Products were affiliated with Plant Traps. The communication
is shown below and is identified as Communication 2.
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23. Additionally, in July 2023, another individual sent a photograph to Plant Traps to
show off their RailScapes Product display, however, the photograph showed Naturanook’s
Accused Products, indicating the customer believed Naturanook’s Accused Products were
affiliated with Plant Traps.
24. At least as early as July 2023, Naturanook embedded Plant Traps’ trademark,
“PLANT TRAPS” in the metadata of its Amazon advertisements to misdirect customers seeking
Plant Traps’ products to Naturanook’s Amazon purchase page. Naturanook also embedded in its
metadata Plant Traps’ exact phrase “TURN YOUR RAILING INTO A FLOATING GARDEN
Create stunning vertical gardens – right on the railing!”, to misdirect customers. Plant Traps
coined this phrase by using it in commerce through its online advertising. A true and correct
copy of the advertisement and metadata is attached hereto as Exhibit 3.
25. In August 2023, Plant Traps began selling its RailScapes Products on Amazon.
26. Shortly thereafter, Plant Traps submitted a report of Naturanook’s infringement to
Amazon, and on August 22, 2023 Amazon responded to Plant Traps and stated that it reviewed
the report and altered or removed the reported content.
27. In early September 2023, Plant Traps became aware that Naturanook reposted
new listings on Amazon including the Accused Products.
28. Shortly thereafter, Plant Traps learned that Naturanook was continuing to sell the
Accused Products along with packaging, installation instructions, and images identical or
substantially the same as the packaging, installation instructions, and images previously created
by Plant Traps for its RailScapes Products.
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29. On or about September 2, 2023, Naturanook communicated with Plant Traps on
Amazon and offered not to begin selling on Etsy if Plant Traps stopped complaining about
Naturanook’s infringing activities on Amazon. Plant Traps appropriately refused. A true and
correct copy of the Naturanook’s email with the proposed agreement is attached hereto as
Exhibit 4.
30. In mid-September 2023, Plant Traps resubmitted a report of Naturanook’s
continuing infringement to Amazon, and on September 16, 2023 Amazon responded to Plant
Traps and stated that it reviewed and altered or removed the reported content.
31. Shortly thereafter, Plant Traps learned that Naturanook relisted and continued to
sell the Accused Products on Amazon.
32. Concerned that Naturanook wouldn’t stop its relentless infringement of the
RailScapes Products and Plant Traps’ intellectual property rights, Plant Traps sent a cease-and-
desist letter to Naturanook on October 6, 2023 (the “October 6, 2023 Letter”). A true and
correct copy of the October 6, 2023 Letter is attached hereto as Exhibit 5.
33. The October 6, 2023 Letter notified Naturanook of several violations of Plant
Traps rights including potential infringement of the patent pending design of the RailScapes
Products, infringement of trademark rights, and infringement of copyright rights, and demanded
that Naturanook immediately cease its sale of the Accused Products and unauthorized use of
Plant Traps’ advertisements, packaging, and installation instructions.
34. In response, Naturanook admitted on October 12, 2023 (the “October 12, 2023
Response”) to infringement of the RailScapes Products and offered several remediation efforts
including removing Plant Traps’ registered “PLANT TRAPS” trademark from its metadata, and
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not using Plant Traps’ advertisements, packaging, and installation instruction materials. A true
and correct copy of the October 12, 2023 Response is attached hereto as Exhibit 6.
35. Naturanook, however, did not meet all of Plant Traps’ October 6, 2023 Letter
demands and continued to willfully infringe Plant Traps’ intellectual property rights.
36. Plant Traps again sought written confirmation from Naturanook that it would stop
further infringement and meet Plant Traps’ demands in a letter on October 24, 2023 (the
“October 24, 2023 Letter”). A true and correct copy of the October 24, 2023 Letter is attached
hereto as Exhibit 7.
37. On October 30, 2023, Naturanook responded to the October 24, 2023 Letter
reiterating the same remediation efforts and claimed that its customer target base is different
from Plant Traps. A true and correct copy of the October 30, 2023 Letter is attached hereto as
Exhibit 8.
38. On October 31, 2023, ‘074 Patent issued to Plant Traps.
39. During April 28, 2023 – June 8, 2023, Plant Traps observed a 25% decrease in
revenue after Naturanook entered the market on April 27, 2023.
40. Thereafter, during June 9, 2023 – July 20, 2023, Plant Traps observed a 60%
decrease in revenue.
NATURANOOK’S INFRINGMENT OF DESIGN ‘076 PATENT
41. On October 31, 2023, ‘076 Patent was issued to Plant Traps. See Exhibit 2.
42. Pursuant to 35 U.S.C. §282, Plant Traps’ ‘076 Patent has a presumption of validity
as a matter of law.
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43. Naturanook is manufacturing, offering for sale, selling, using, and/or importing
products into the United States infringing the patented design of the ‘076 Patent.
44. Upon information and belief, Naturanook sold and is selling the Accused Products
on Amazon, eBay, and other online commerce marketplaces.
45. Naturanook’s product consists of a design that is substantially like that of Plant
Traps. Images comparing the Accused Product to the patented design are shown below.
[Space is intended to be blank, see image referenced in averment 46 below.]
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46. In the eyes of an ordinary observer and subsequent purchasers the design of
Naturanook’s Accused Products and Plant Traps’ patented design are substantially the same.
47. A purchaser of RailScapes Products would consider the design of Naturanook’s
Accused Products and Plant Traps’ patented design substantially the same.
48. An ordinary purchaser of RailScapes Products would see the design of
Naturanook’s Accused Products and the ‘076 Patent’s patented design as being the same and
having the same design impression.
49. An ordinary observer would view the two designs, in the context of the prior art
and with the attention that a particular observer would have as a purchaser, to be the same.
50. In the eyes of the ordinary observer, giving such attention as a purchaser would,
the design of the Accused Products and the patented design are substantially the same, with the
resemblance being such that it will deceive such an observer, inducing the observer to purchase
the Accused Products.
51. As such, Naturanook’s Accused Products infringes Plant Traps’ patented design
and patent rights.
NATURANOOK’S INFRINGEMENT OF PLANT TRAPS’ TRADEMARK RIGHTS
52. Plant Traps owns various trademark rights to its products.
53. Plant Traps is the owner of the 256 Registration. See Exhibit 1.
54. Plant Traps has been using the PLANT TRAPS mark in connection with the sale
of such products in the United States since at least January 27, 2021.
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55. As a result of Plant Traps’ use of the PLANT TRAPS mark and the high quality
of its products, the mark has become widely known throughout the United States and it is closely
identified with Plant Traps.
56. By virtue of its use, Plant Traps has built up substantial goodwill in the mark.
57. Thus, the mark represents a valuable business asset.
58. Naturanook has been violating Plant Traps’ rights in the PLANT TRAPS mark by
using that mark in connection with its advertising of similar competing products on Amazon.
59. Naturanook used the PLANT TRAPS mark in the metadata of its Amazon ads for
metal brackets for supporting potted plants. See Exhibit 3.
60. The screenshots on Exhibit 3 illustrate that Naturanook used the PLANT TRAPS
mark in the underlying metadata.
61. Plant Traps has not consented to Naturanook’s use of the PLANT TRAPS mark in
any manner.
62. Naturanook’s unauthorized use of the PLANT TRAPS mark was made with the
intention of trading on the goodwill associated with the mark.
63. Both Naturanook’s use of Plant Traps’ trademark and its use of the PLANT
TRAPS mark for the same type of products, are individually, and collectively intended, and
likely to cause confusion, to cause mistake, and/or to deceive affiliation, connection, or
association of Naturanook’s Accused Products with Plant Traps’ RailScapes Products.
64. In fact, customers have already confused Naturanook’s Accused Products as
being associated with Plant Traps’ RailScapes Products. See Communication 2.
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65. As such, the above use of the PLANT TRAPS mark in connection with
Naturanook’s products is in violation of 15 U.S.C. § 1114.
WILLFUL INFRINGMENT
66. Naturanook’s activities were and are deliberate and willful.
67. Naturanook is aware of Plant Trap’s inventions and trademark and has
deliberately chosen to use, sell, and offer for sale products and use marks intended to copy or
imitate the same.
68. Naturanook was aware of Plant Traps’ RailScapes Products and trademark before
it entered the market with its Accused Products.
69. Naturanook deliberately chose to use, sell, and offer for sale its Accused Products
that copies and imitates Plant Traps’ RailScapes Products.
70. Naturanook deliberately chose to use, sell, and offer for sale its Accused Products
that copies and imitates the marks of Plant Traps’ RailScapes Products.
71. Naturanook chose to infringe Plant Traps’ patent and trademark rights despite an
objectively high likelihood that its actions constituted infringement of valid patent and trademark
rights.
72. Naturanook disregarded any risk, being either known or so obvious, to sell its
Accused Products.
73. Naturanook’s actions constitute willful infringement under the current legal
standards, and any future standards of law applicable thereto. Such standards include any current
and future standards for willfulness, and for enhanced damages under 35 U.S.C. §284.
74. Naturanook’s willful infringement is ongoing.
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75. Naturanook, in bad faith, adopted Plant Traps’ inventions and marks.
76. Naturanook’s acts have been without license or authority of Plant Traps.
77. Naturanook’s bad faith activities have caused and will continue to cause a
likelihood of deception and confusion in the marketplace among consumers, and extensive
damage to Plant Traps’ business, goodwill, and reputation.
78. Naturanook illegally profited and is illegally profiting from its infringement of
Plant Traps’ rights.
79. Naturanook’s actions have caused and are causing irreparable harm to Plant Traps.
80. Plant Traps was damaged by Naturanook’s activities and will continue to be
damaged unless Naturanook is restrained and enjoined by this Court.
81. Plant Traps has no adequate remedy at law.
82. Plant Traps has been damaged by Naturanook’s illegal actions in an amount to be
determined by a jury and this Court, including recovery and relief for Plant Traps’ lost sales, lost
profits, price erosion, and damage to Plant Traps’ reputation and good will, and/or a
disgorgement of Naturanook’s revenues and profits.
DAMAGES
83. Plant Traps is being irreparably harmed by Naturanook’s infringing activities and
has no adequate remedy at law.
84. Plant Traps has been extensively damaged by Naturanook’s intellectual property
infringement in an amount to be determined by a jury and this Court.
85. Plant Traps seeks damages because of Naturanook’s infringement which include
but are not limited to: Plant Traps’ lost sales, lost profits, price erosion, and damage to its
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reputation and good will; and/or disgorgement of Naturanook’s revenues and profits from
Naturanook’s sales of infringing products, associated parts thereof, and from convoyed sales.
86. Plant Traps requests that this Honorable Court assess enhanced damages against
Naturanook in the fullest amount permissible by law, including, but not limited to, treble
damages under federal law and punitive damages under Pennsylvania law, in view of the willful,
egregious, malicious, and extensive nature of Naturanook’s bad faith activities complained of
herein, and in view of the numerous violations, the willful nature of the violations, and the
significant damage to Plant Traps, as set forth above.
COUNT I
PATENT INFRINGEMENT PURSUANT TO 35 U.S.C. §101 et seq.
87. Plant Traps repeats and re-alleges 1-87 contained in the preceding paragraphs as if
fully set forth herein.
88. Plant Traps patent infringement claim arises under 35 U.S.C. §101 et seq.
89. This Court has jurisdiction over this claim pursuant to 28 U.S.C. §1331.
90. Naturanook’s acts as set forth above constitute infringement of the ‘076 Patent
under 35 U.S.C. §271.
91. Naturanook’s acts of infringement were and are willful and deliberate.
92. Naturanook is profiting from its infringing activities.
93. As a result of Naturanook’s conduct, Plant Traps is being substantially harmed,
and is suffering actual damages, including lost profits, and has been forced to retain legal counsel
and pay costs of court to bring this action.
WHEREFORE, Plant Traps respectfully requests that this Honorable Court, upon final
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hearing of this matter, grant the following relief against Naturanook:
A. A judgment entered in favor of Plant Traps on its claim that Naturanook
infringed the ‘076 Patent under 35 U.S.C. § 101 et seq.;
B. A permanent injunction enjoining Naturanook, its respective officers,
directors, agents, and employees and all other those in concert or participation with, from:
1) making, importing, using, selling, and offering to sell infringing
products practicing the ‘076 Patent and from otherwise infringing,
contributing to infringement of, and actively inducing infringement of the
‘076 Patent; and,
2) holding out in any manner whatsoever that Naturanook or
Naturanook’s products and services, such as the Accused Products and
services, are in any way sponsored, approved, sourced, certified, affiliated,
connected or associated with Plant Traps, or Plant Traps’ products and
services;
C. A judgment and order that Naturanook make an accounting to Plant Traps
and pay over to Plants:
1) the extent of Naturanook’s total profit and revenue realized and
derived from its infringement of the ‘076 Patent and actual damages to Plant
Traps including an assessment of interest on the damages so computed;
2) treble damages pursuant to 35 U.S.C. §§ 284 and 289 for
Naturanook’s willful and deliberate infringement and as permitted under all
applicable federal laws;
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D. A judgment and order that Naturanook be required to deliver up for
impoundment during the pendency of this action, and for destruction thereafter, all copies
of the infringing materials in its possession or under its control and all materials,
including molds and master models, used for making same;
E. An award of costs of this action together with Plant Traps’ reasonable
attorney’s fees pursuant to 35 U.S.C. §285 for this case being exceptional, and as
permitted under other applicable laws;
F. An award of interest, including pre-judgment interest on all damages;
G. An award that Plant Traps obtain such all other relief as permitted under
the laws of the United States; and
H. An award to Plant Traps of such all other relief as the Court may deem
just and equitable.
COUNT II
FEDERAL TRADEMARK INFRINGEMENT PURSUANT TO THE LANHAM ACT
15 U.S.C. § 1114
94. Plant Traps repeats and re-alleges 1-87 contained in the preceding paragraphs, as if
fully set forth herein.
95. Plant Traps’ PLANT TRAPS mark, the 256 Registration, is valid and subsisting
and provide Plant Traps with the right to use the PLANTS TRAPS mark in commerce in the
United States and this judicial district.
96. Naturanook has been violating Plant Traps’ 256 Registration rights in the
PLANT TRAPS mark by using that mark in connection with its advertising of similar
competing products on Amazon.
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97. Naturanook used the PLANT TRAPS mark in the metadata of its Amazon ads
for metal brackets for supporting potted plants to misdirect customers. See Exhibit 3.
98. Plant Traps has not consented to Naturanook’s use of the PLANT TRAPS mark
in any manner.
99. Both Naturanook’s use of Plant Traps’ trademark and its use of the PLANT
TRAPS mark for the same type of products, are individually, and collectively intended, and
likely to cause confusion, to cause mistake, and/or to deceive affiliation, connection, or
association of Naturanook’s Accused Products with Plant Traps’ RailScapes Products.
100. Plant Traps has not consented to Naturanook’s use of the PLANT TRAPS mark
in any manner.
101. Consumers who purchase Naturanook’s products that bear marks that are
almost identical and confusingly similar to the PLANT TRAPS mark or infringing marks
confusingly similar thereto, believing products to be sponsored, associated with, or affiliated
with Plant Traps, are deceived and misled or will likely be deceived and misled, thereby
resulting in a loss of goodwill in the PLANT TRAPS mark and creating confusion, thus
irreparably injuring Plant Traps.
102. Upon information and belief, Naturanook’s unauthorized use of Plant Traps’
mark was with the deliberate intention of trading on and benefiting from the valuable
reputation and goodwill established in PLANT TRAPS mark and gives the false impression
that Naturanook is associated with Plant Traps.
103. Plant Traps has no control over the quality of the products offered and sold by
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Naturanook and because of the confusion as to the source and false association with Plant
Traps engendered by Naturanook, Plant Traps’ valuable goodwill in respect to its mark is at
the mercy of Naturanook unless such use is permanently enjoined.
104. Naturanook’s use of the PLANT TRAPS mark to confuse consumers is a
deliberate, knowing, and willful infringement of Plant Traps’ statutory trademark rights. Such
acts have been undertaken in reckless and willful disregard for Plant Traps’ rights and have
been designed specifically to trade upon the goodwill associated with the Plant Traps’ mark.
engaged in trademark infringement under Section 43 of the Lanham Act, 15 U.S.C.
§ 1114;
directors, agents, and employees and all person in concert or participation with, from:
1) offering for sale, selling, or marketing merchandise that copies or
imitates of Plant Traps’ trademark rights;
2) offering for sale, selling or marketing merchandise that tends in
any way to deceive, mislead or confuse the public into believing that
Naturanook’s merchandise in any originates with, is sanctioned by, or is
affiliated with, Plant Traps;
3) from engaging in any activities violating Plant Traps’ rights under
15 U.S.C. §1114 or any other right under federal law;
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1) any and all revenues, profits, gains, and advantages attributable to
Naturanook’s and all damages sustained by Plant Traps by reason of the acts
complained of in this Complaint, including an assessment of interest on the
damages so computed;
2) trebled damages pursuant to 15 U.S.C. §1117 for Naturanook’s
willful and deliberate infringement and as permitted under all federal laws;
D. A judgment and order that Naturanook be required to deliver up for
E. An award of costs of this action together with Plant Traps’ reasonable
F. An award of interest, including pre-judgment interest on all damages;
G. An award that Plant Traps obtain such all other relief as permitted under
H. An award to Plant Traps of such all other relief as the Court may deem
just and equitable.
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COUNT III
FEDERAL FALSE DESIGNATION OF ORIGIN PURSUANT TO THE LANHAM ACT
15 U.S.C. §1125(a)
105. Plant Traps repeats and realleges 1-87 contained in the preceding paragraphs as if
fully stated herein.
106. Naturanook embedded in its metadata Plant Traps’ exact phrase, “TURN YOUR
RAILING INTO A FLOATING GARDEN Create stunning vertical gardens – right on the
railing!”, to misdirect customers. Plant Traps coined this phrase by using it in commerce
through its online advertising. See Exhibit 3.
107. Plant Traps’ use of this phrase in commerce protects the marks from being used
by others.
108. Plant Traps never consented to Naturanook’s use of these marks.
109. Naturanook’s unauthorized use of Plant Traps’ marks to sell the Accused
Products creates a false designation of origin that such products emanate from Plant Traps and
falsely creates the impression that Plant Traps sponsors or approves the Accused Products and
falsely associates and affiliates Naturanook with Plant Traps in violation of 15 U.S.C. §1125(a).
110. Naturanook’s unauthorized use of Plant Traps’ marks is intentionally designed to
deceive prospective purchasers into believing that the Accused Products originate from or are
endorsed by Plant Traps. Naturanook’s unauthorized use of Plant Traps’ marks is likely to
deceive and has deceived consumers into believing that Naturanook is in some way associated
with, connected with, or related to Plant Traps.
111. Naturanook’s unauthorized use of Plant Traps’ marks in interstate commerce has
caused and is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation,
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connection, or association of Naturanook with Plant Traps or as to the origin, sponsorship, or
approval by Plant Traps of Naturanook’s products.
112. Upon information and belief, Naturanook has, with knowledge of the falsity of the
designations of origin, descriptions, and/or representations used in connection with the sale of
the Accused Products, caused them to be advertised, offered, and sold in interstate commerce to
the immediate and irreparable damage of Plant Traps and the public in violation of 15 U.S.C.
§1125(a).
113. Naturanook has unfairly competed with Plant Traps by using Plant Traps’ marks
to sell its Accused Products without authorization from Plant Traps in violation of 15 U.S.C.
§1125(a).
114. Naturanook’s acts of infringement were and are willful and deliberate.
115. Naturanook has profited from its illegal and bad faith activities.
116. Plant Traps has suffered and continues to suffer substantial damage because
Naturanook has unfairly competed with Plant Traps and participated in bad faith activities.
A. A judgment and order that Naturanook unfairly competed with Plant Traps
and infringed Plant Traps’ trademark rights under 15 U.S.C. §1125(a);
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15 U.S.C. §1125(a) or any other right under federal law;
1) any and all revenues, profits, gains, and advantages attributable to
Naturanook’s and all damages sustained by Plant Traps by reason of the
acts complained of in this Complaint, including an assessment of interest
on the damages so computed;
2) trebled damages pursuant to 15 U.S.C. §1117 for Naturanook’s willful and
deliberate infringement and as permitted under all federal laws;
D. Naturanook be required to deliver up for impoundment during the
pendency of this action, and for destruction thereafter, all copies of the infringing
materials in its possession or under its control and all materials, including molds and
master models, used for making same;
E. A judgment and order that Naturanook be required to deliver up for
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F. An award of costs of this action together with Plant Traps’ reasonable
G. An award of interest, including pre-judgment interest on all damages;
H. An award that Plant Traps obtain such all other relief as permitted under
I. An award to Plant Traps of such all other relief as the Court may deem
just and equitable.
COUNT IV
PENNSYLVANIA COMMON LAW
TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION
117. Plant Traps repeats and re-alleges 1-87 allegation contained in the preceding
paragraphs, as if fully set forth herein.
118. This claim arises under the Common Law of the Commonwealth of Pennsylvania.
See USX Corp. v. Adriatic Ins. Co., 99 F.Supp.2d 593, 619 (W.D. Pa. 2000).
119. This Court has jurisdiction over this claim pursuant to 28 U.S.C. §1367.
120. Plant Traps coined this phrase by using it in commerce through its online
advertising.
121. Plants Traps coined the phrase, “TURN YOUR RAILING INTO A FLOATING
GARDEN Create stunning vertical gardens – right on the railing!”, by using in commerce
through its online advertising.
122. Plant Traps’ use of this phrase in commerce protects the marks from being used
by others.
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123. Naturanook used this exact phrase by embedding it in its metadata to misdirect
customers.
124. Plant Traps never consented to Naturanook’s use of these marks.
125. Naturanook has engaged in unfair competition under Pennsylvania Common Law
because it knowingly used Plant Traps’ marks without authorization.
126. Naturanook has misappropriated the business value of Plant Traps and has
misappropriated the results of Plant Traps’ labor and skill and its expenditures, by marketing and
selling products that are confusingly like Plant Traps’.
127. Naturanook has used Plant Traps’ marks in competition with Plant Traps, gaining
an unfair advantage, because Naturanook bore little or no burden of expense of Plant Traps’
creation, development, marketing, and promotion of its marks and products.
128. Naturanook engaged in bad faith in misappropriating Plant Traps’ products by
creating, marketing, promoting, and selling products that use Plant Traps’ marks which is likely
to cause confusion, to deceive purchasers as to the origin of the products, and to dilute the value
of Plant Traps’ marks and the value of Plant Traps’ products bearing the same.
129. Naturanook’s bad faith activities are intended to copy or mimic the trademarks
associated with Plant Traps’ brand.
130. Naturanook’s actions have caused significant commercial damage to Plant Traps.
131. Naturanook’s conduct is illegal and actionable under the Common Law of
trademark infringement and unfair competition of the Commonwealth of Pennsylvania.
25
engaged in trademark infringement and unfair competition under the Common Law of the
Commonwealth of Pennsylvania;
3) unfairly competing with Plant Traps, or engaging in any and all
further deceptive or unfair business practices with respect to Plant Traps
the Common Law of the Commonwealth of Pennsylvania;
5) from engaging in any and all further deceptive or unfair business
practices with respect to Plant Traps under the Common Law of the
Commonwealth of Pennsylvania;
C. An award of the following to Plant Traps:
1) compensatory damages;
2) punitive or exemplary damages under Pennsylvania law because of
26
the outrageous, willful and malicious tortious conduct of Naturanook
complained of herein;
D. An award of interest, including pre-judgment interest on all damages;
E. An award that Plant Traps obtain such all other relief as permitted under
the laws of the Commonwealth of Pennsylvania; and
F. An award to Plant Traps of such all other relief as the Court may deem
just and equitable.
V. JURY TRIAL DEMAND
Pursuant to Rule 38 Fed. R. Civ. P. Plant Traps hereby demands a trial by jury on all
issues set forth herein that are properly triable to a jury.
Respectfully submitted,
LEECH TISHMAN FUSCALDO & LAMPL, LLC
Dated: November 3, 2023 /s/Rebeca H. Miller

Alan G. Towner, Esquire
PA I.D. # 67984
Rebeca H. Miller, Esquire
PA I.D. # 329744
525 William Penn Place, 28th Floor,
Pittsburgh, PA 15219
(412) 694-7281 (phone)
(412) 227-5551 (fax)
atowner@leechtishman.com
rmiller@leechtishman.com
27

D Squared v. Bixing - Complaint

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Case 2:23-cv-01907-JFC Document 1 Filed 11/03/23 Page 1 of 27

IN THE UNITED STATES DISTRICT COURT

D SQUARED PLANT TRAPS LLC Case No.: 2:23-CV-1907

vs. JURY TRIAL DEMANDED

GUANGDONG BIXING TRADING CO.,

Defendant, GUANGDONG BIXING TRADING CO., LTD. d/b/a NATURANOOK STORE

(“Naturanook”) and alleges as follows:

I. NATURE OF THE ACTION

federal law and the laws of the Commonwealth of Pennsylvania.

II. THE PARTIES

that are the subject of this Complaint.

the United States.

III. JURISDICTION AND VENUE

intentionally directed its tortious activities toward the Commonwealth of Pennsylvania.

7. Naturanook has committed acts of intellectual property infringement in

this Complaint to consumers in Pennsylvania, including this judicial district.

has a regular and established place of business in this district.

IV. FACTUAL ALLEGATIONS COMMON TO ALL COUNTS

plants which Plant Traps named “RailScapes” (“RailScapes Product(s)”).

capable of displaying planters mid-railing for layering.

following of close to a half a million followers.

website (planttraps.com) on March 10, 2023.

essentially identical product on Amazon (“Accused Product(s)”).

The communication is shown below and is identified as Communication 1.

is shown below and is identified as Communication 2.

affiliated with Plant Traps.

copy of the advertisement and metadata is attached hereto as Exhibit 3.

26. Shortly thereafter, Plant Traps submitted a report of Naturanook’s infringement to

the report and altered or removed the reported content.

new listings on Amazon including the Accused Products.

by Plant Traps for its RailScapes Products.

29. On or about September 2, 2023, Naturanook communicated with Plant Traps on

30. In mid-September 2023, Plant Traps resubmitted a report of Naturanook’s

sell the Accused Products on Amazon.

correct copy of the October 6, 2023 Letter is attached hereto as Exhibit 5.

Plant Traps’ advertisements, packaging, and installation instructions.

38. On October 31, 2023, ‘074 Patent issued to Plant Traps.

revenue after Naturanook entered the market on April 27, 2023.

NATURANOOK’S INFRINGMENT OF DESIGN ‘076 PATENT

on Amazon, eBay, and other online commerce marketplaces.

[Space is intended to be blank, see image referenced in averment 46 below.]

47. A purchaser of RailScapes Products would consider the design of Naturanook’s

48. An ordinary purchaser of RailScapes Products would see the design of

having the same design impression.

the Accused Products.

and patent rights.

NATURANOOK’S INFRINGEMENT OF PLANT TRAPS’ TRADEMARK RIGHTS

52. Plant Traps owns various trademark rights to its products.

identified with Plant Traps.

57. Thus, the mark represents a valuable business asset.

metal brackets for supporting potted plants. See Exhibit 3.

mark in the underlying metadata.

intention of trading on the goodwill associated with the mark.

likely to cause confusion, to cause mistake, and/or to deceive affiliation, connection, or

association of Naturanook’s Accused Products with Plant Traps’ RailScapes Products.

64. In fact, customers have already confused Naturanook’s Accused Products as

being associated with Plant Traps’ RailScapes Products. See Communication 2.

Naturanook’s products is in violation of 15 U.S.C. § 1114.