Thousand Oaks Barrel v. Schedule A (EDVA) - UP Complaint

Case 1:23-cv-01563 Document 1 Filed 11/16/23 Page 1 of 23 PageID# 1
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
_
)
THOUSAND OAKS BARREL CO., LLC )
a Virginia limited liability company, )
) Civil Action No.:
Plaintiff, )
)
v. )
)
THE PARTNERSHIPS, COMPANIES, and )
UNINCORPORATED ASSOCIATIONS )
IDENTIFIED ON SCHEDULE A, )
)
Defendants. )
)
COMPLAINT FOR PATENT INFRINGEMENT
Plaintiff Thousand Oaks Barrel Co., LLC (“Thousand Oaks”), by its undersigned counsel,
alleges as follows for its Complaint against Defendants in Schedule “A.”
THE NATURE OF THIS ACTION
1. Thousand Oaks brings this action against Defendants pursuant to 35 U.S.C. §101
et. seq. and §§271, 281, 283, 284, & 285 inclusive, for infringement of one or more claims of
U.S. Patent No. 11,744,256 B2 (the ’256 Patent”) titled “Device and method for Imparting
Smoked Flavors to Beverages and Foodstuffs”. The ’256 Patent protects the products of Plaintiff
that are used to add smokey flavors to cocktails and other beverages, and foods. A true and
correct copy of the ’256 Patent is attached as Exhibit A.
2. Thousand Oaks also brings this action against Defendants pursuant to 15 U.S.C. §
1125(a); Sec. 43(a) of the Lanham Act for federal trade dress infringement.
THE PARTIES
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3. Thousand Oaks Barrel Co., LLC is a Virginia Limited Liability Company that
maintains a principal place of business at 9113 Euclid Avenue, Manassas, VA 20110. Plaintiff is
the exclusive licensee of the ’256 Patent with the right to enforce its claims.
4. Defendants identified in Schedule “A” are all believed to be individuals,
companies, and unincorporated business associations who, upon information and belief, reside in
both domestic and foreign jurisdictions. Defendants sell Accused Products on Amazon.com,
Ebay.com, Etsy.com, and other online retail platforms. Since Amazon.com and others do not
require the true names and contact information of sellers to be posted publicly, and sellers may
publicly use fictitious names, the public seller names used on online retail stores are unreliable.
The true names, identities, and addresses of Defendants are currently unknown.
5. Defendants conduct their operations through fully interactive commercial
websites hosted on various Amazon.com and other platform storefront webpages (“Infringing
Webstores”). Each Defendant targets consumers in the United States, including the State of
Virginia, and has offered to sell and, on information and belief, has sold and continues to sell
products (“Accused Products”) that practice the claims of the Patents-in-Suit to consumers
within the United States, including the State of Virginia and Eastern District of Virginia. For
example, the Accused Products may be purchased by Virginia residents using the Amazon
“Prime” online order system and delivered by an Amazon Prime delivery vehicle in this district.
6. Defendants from outside the United States have the capacity to be sued pursuant
to Federal Rule of Civil Procedure 17(b).
7. Through their operation of the Infringing Webstores, Defendants are directly and
personally engaging in the importation, offer for sale, and sale of Accused Products as alleged,
oftentimes as partners and/or suppliers. Upon information and belief, Defendants on
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Amazon.com may intentionally or otherwise conceal their identities and the full scope of their
infringing operations in an effort to deter Plaintiff from learning Defendants’ true identities and
the exact interworking of Defendants’ infringing acts. Once their identities become known via
ordered disclosure, Plaintiff will promptly amend this Complaint to identify them.
JURISDICTION AND VENUE
8. This is an action for patent infringement arising under the laws of the United
States, 35 U.S.C. §271 et seq. and for federal trade dress infringement arising under the laws of
15 U.S.C. § 1125(a); Sec. 43(a) of the Lanham Act.
9. This Court has subject matter jurisdiction over this action pursuant to 35 U.S.C.
§§271, 281 and 28 U.S.C. §§1331 and 1338(a), federal question, and 28 U.S.C. §1332 diversity
jurisdiction.
10. This Court has personal jurisdiction over U.S. based Defendants in that they
transact business in the State of Virginia and in the Eastern District of Virginia.
11. This Court has Personal jurisdiction over non-U.S. based Defendants because
they have supplied their products into this district and under the Federal Long Arm Rule, FRCP
4(k)(2)
(k)Territorial Limits of Effective Service (2) Federal Claim Outside State-Court Jurisdiction.
For a claim that arises under federal law, serving a summons or filing a waiver of service
establishes personal jurisdiction over a defendant if:
(A) the defendant is not subject to jurisdiction in any state's courts of general jurisdiction; and
(B) exercising jurisdiction is consistent with the United States Constitution and laws
12. Venue is proper in this District pursuant to §§1391(b), 1391(c) and 1400(b) in that
the U.S. based Defendants are entities or individuals subject to personal jurisdiction in this
District. Venue is also proper in this District because a substantial part of the events or omissions
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giving rise to the claims occurred in this District and Defendants directly target business
activities towards consumers in the State of Virginia. Defendants are doing business in this
judicial district and have committed acts of infringement in this District.
13. Venue is proper in this Court against non-U.S. based Defendants under 28 U.S.C.
§ 1391 (c)(3) and 28 U.S.C. § 1400(b) based on information set forth herein, which is hereby
repeated and incorporated by reference. For purposes of venue regarding cases against foreign
corporations, general federal statutes are applicable. This Court is a proper venue for a case
against non-U.S. based Defendants in any judicial district in any state to which it is subject to
personal jurisdiction. See Brunette Mach. Works, Ltd. v. Kockum Indus., Inc., 406 U.S. 706, 92 S.
Ct. 1936, 32 L. Ed. 2d 428 (1972); See also TC Heartland LLC v. Kraft Foods Grp. Brands LLC,
581 U.S. 258, 137 S. Ct. 1514, 197 L. Ed. 2d 816 (2017) (Declining to expand limitation of
venue statutes related to domestic corporations to foreign corporations).
14. This Court has personal jurisdiction over Defendants and venue is proper pursuant
to Va. Code Ann. § 8.01-328.1 (1950). Personal jurisdiction exists over Defendants because
Defendants have minimum contacts with this forum as a result of business regularly conducted
within the Commonwealth of Virginia and within this district, and, on information and belief,
specifically as a result of, at least, committing the tort of patent infringement within Virginia and
this District. This Court has personal jurisdiction over Defendants, in part, because Defendants
do continuous and systematic business in this District, including by providing Accused Products
and services to the residents of the Eastern District of Virginia through fully interactive websites
that allow Accused Products to be purchased by Virginia residents and shipped to addresses in
Virginia. Defendants knew the Accused Products would be used within this District, and have
solicited business from the residents of the Eastern District of Virginia using the Amazon.com e-
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commerce platform.
BACKGROUND AND GENERAL ALLEGATIONS
15. Plaintiff is the manufacturer of the FOGHAT product lines, a unique product that
allows professional bartenders and home users alike to add flavor to cocktails and foods via
sources of smoke. Thousand Oaks manufactures, markets, sells and distributes various products
under a trademark for “Foghat Cocktail Smoker,” domestically and internationally, including
within the Eastern District of Virginia (collectively, “Plaintiff’s Products”) that are commercial
embodiments made under the exclusively licensed patent identified in Paragraph 1, above.
Defendants have flooded the online market with sales of Accused Products in violation of
Plaintiff’s intellectual property rights and have irreparably damaged, and are continuing to
irreparably damage, Plaintiff.
16. Plaintiff’s Foghat Cocktail Smoker Products are recognized around the world as a
quality product used to add smoke flavor to cocktails and other beverages. As detailed below,
Plaintiff has been selling its products in interstate and foreign commerce, including commerce in
Virginia and the Eastern District of Virginia.
17. Plaintiff maintains quality control standards for all of its products sold under the
Foghat brand. Genuine Plaintiff’s Products are distributed through a network of licensees,
distributors and retailers, via reseller webstores and through Plaintiff’s own website in Virginia,
www.1000oaksbarrel.com. Prior to the flood of Accused Products entering the market, sales of
Plaintiff’s Products via legitimate webstores represented a significant portion of Plaintiff’s
business. Plaintiff has expended substantial time, money, and other resources developing,
advertising, and otherwise promoting its products sold under the ’256 Patent and the Foghat
Trade Dress.
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18. Upon information and belief, many of the Accused Products are manufactured by
factories based in China and sold wholesale either directly or through China-based e-commerce
Internet websites. For example, sellers on Amazon.com purchase Accused Products in bulk from
the factory or the Chinese e-commerce sites to sell on Infringing Webstores. In 2023, Plaintiff’s
chief executive officer has personally met a Chinese factory owner at a convention in Chicago,
IL, who was offering for sale products at wholesale that were manufactured at the factory in
China that would fall under the claims of the ’256 Patent and violate Plaintiff’s trade dress rights.
19. On September 5, 2023, United States Patent No. 11,744,256, entitled “Device and
Method for Imparting Smoked Flavors to Beverages and Foodstuffs” was duly and legally issued
by the USPTO. The ’256 Patent claims patent-eligible subject matter and is valid and
enforceable. Soak Limited, London, Great Britain, is the exclusive owner by assignment.
Plaintiff is the exclusive licensee of the ’256 Patent including the right to bring this suit for
injunction and damages, and including the right to sue and recover all past, present, and future
damages for infringement of the ’256 Patent. Defendants are not licensed to the ’256 Patent,
either expressly or implicitly, nor do they enjoy or benefit from any rights in or to the ’256
Patent whatsoever. A true and correct copy of the ’256 Patent is attached hereto as Exhibit A.
20. The ’256 Patent is presumed valid under 35 U.S.C. § 282.
THE PATENT
21. The claims of the ’256 Patent are directed to “a device for imparting smoked
flavors to beverages and foodstuffs.” The ’256 Patent contains nineteen claims directed to the
device, where claims 1, 9, and 10 are independent claims. Claim 1 of the ’256 Patent recites:
1. A device for imparting smoked flavors to beverages and foodstuffs,

comprising:
a base having a fuel chamber portion at its upper end and
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a conduit portion at its lower end, the fuel chamber portion comprising an
upper wall portion defining a perimeter edge of the fuel chamber portion and a
floor defining a bottom end, the floor extending from the upper wall portion to an
opening in the floor,
wherein the fuel chamber portion is oriented to hold fuel, and
wherein the conduit portion is disposed below the floor and comprises a
channel through the conduit portion so that, when the fuel in the fuel chamber
portion is ignited, the channel facilitates flow of smoke down-ward from the fuel
chamber portion through at least one aperture that extends from the channel space
through a wall of the conduit portion.
INFRINGEMENT
22. Defendants manufacture, import, offer to sell, and sell various smoker devices for
imparting smoked flavors to cocktail beverages and foods. These devices are sold on the
Amazon.com platform and other Internet platforms using Infringing Webstores.
23. Doe Defendants 1-161 in Schedule “A” have, under 35 U.S.C. §271(a), directly
infringed, and continue to directly infringe, literally and/or under the doctrine of equivalents, one
or more claims of the ’256 Patent by making, using, testing, selling, offering for sale and/or
importing into the United States the Accused Products.
24. Defendants also indirectly infringe the ’256 Patent by actively inducing the direct
infringement by third parties under 35 U.S.C. §271(b). Defendant has knowingly and
intentionally actively aided, abetted and induced others to directly infringe at least one claim of
the ’256 Patent, including their customers throughout the United States. Defendants continue to
induce infringement of the ’256 Patent.
25. Plaintiff has conducted a detailed analysis, establishing and confirming that
Defendants’ Accused Products directly infringe claims of the ’256 Patent.
26. Attached as Exhibit B to the Complaint is a claim chart demonstrating the
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correspondence of the operation of the accused products with elements of claim 1 of the ’256
Patent.
27. Defendants and their customers have continued infringement.
28. The Accused Products satisfy the elements of the asserted claims of the ’256
Patent. An exemplary Accused Product from Defendant Doe#68 (ASIN B0BQRG43B6) is
shown below with reference to claim 1:
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29. Plaintiff is the exclusive licensee of the ’256 Patent with the right to enforce the
’256 Patent.
30. Defendants have infringed, and continue to infringe, at least claims 1 - 19 of the
’256 Patent under 35 U.S.C. § 271(a) and/or (b), by (a) making, using, offering to sell, selling
and/or importing into the United States, devices for imparting smoked flavors to beverages and
foodstuffs, that infringe the asserted claims in the United States, or (b) by inducing others to use
the Accused Products and/or sell the Accused Products in the United States. Defendants
continue to manufacture, use, offer to sell, sell and import Accused Products. The Accused
Products are also being used to infringe. Defendants continue to sell Accused Products inducing
infringement by others and also continue to perform infringing activity by using the claimed
devices in the United States.
31. The Accused Products are infringing devices and thus directly infringe ’256
Patent claims 1 – 19. The devices include a base having a fuel chamber portion and conduit
portion with a channel to an aperture, where when the fuel in the fuel chamber portion is ignited,
the channel facilitates flow of smoke downward from the fuel chamber portion through the
aperture and thus directly, and indirectly by inducement, infringe claims 1-19 of the ’256 Patent.
32. The ’256 Patent is also infringed under 35 USC § 271(a) when an accused product
is "used" by Defendant to impart smoked flavors to beverages and foodstuffs; the ’256 Patent is
infringed under 35 USC § 271(b) when Defendants "induce" others to use the Accused Products
to impart smoked flavors to beverages and foodstuffs.
33. Upon information and belief, Defendant has directly infringed one or more of
claims of the ’256 Patent under 35 USC §271(a):
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"(a) Except as otherwise provided in this title, whoever without authority

makes, uses, offers to sell, or sells any patented invention, within the United
States or imports into the United States any patented invention during the term
of the patent therefor, infringes the patent.
by engaging in accused activity including making, using, offering to sell, selling and
importing Accused Products in the United States. Defendants continue to infringe claims
of the ’256 Patent.
34. Upon information and belief, Defendants have indirectly infringed one or more of
the claims of the ’256 Patent under 35 USC §271(b):
(b) Whoever actively induces infringement of a patent shall be liable as an

infringer.
by providing accused products, with instructions, which are used for imparting smoked flavors to
beverages and foodstuffs, thereby inducing others to use the Accused Products.
35. Defendants do not have a license or authority to use the ’256 Patent.
36. Plaintiff has marked its smoker device products with notices of the ’256 Patent.
Upon information and belief, Defendants have no good faith defense to Plaintiff's infringement
allegations.
37. As a result of Defendants’ infringement of the ’256 Patent, Plaintiff has suffered
and will continue to suffer damages in an amount not yet determined, of at least a reasonable
royalty.
38. Defendants, without authorization or license from Plaintiff, continue to infringe
the claims of the ’256 Patent in connection with the advertisement, offer for sale, and sale of the
Accused Products, through, inter alia, the Internet. Each Infringing Webstore offers shipping to
the United States, including Virginia, and, on information and belief, each Defendant has sold
Accused Products into the United States, including Virginia. The Defendants are continuing to
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offer to sell and sell Accused Products at least via Amazon.com.
39. Defendants have been willfully infringing the Patents-in-Suit since at least as
early as they became aware of the Patents-in-Suit. Upon information and belief, Defendants have
no good faith defense to Plaintiff's infringement allegations and have refused to cease selling
products or to engage in further attempts to reach a business resolution. Instead, Defendants have
intentionally continued their knowing infringement.
40. Many sellers on Amazon.com go to great lengths to conceal their true identities
and often use multiple fictitious names and addresses to register and operate the Infringing
Webstores. Upon information and belief, Defendants regularly create new Webstores on the
Amazon.com platform using the identities listed in Schedule “A” to the Complaint, as well as
other unknown fictitious names and addresses. Such registration patterns are one of many
common tactics used by the Defendants to conceal their identities and the full scope and
interworking of their operations and to prevent the Infringing Webstores from being disabled.
41. Upon information and belief, Defendants will continue to register or acquire
listings for the purpose of selling Accused Products that infringe upon the ’256 Patent unless
preliminarily and permanently enjoined.
42. Plaintiff has no adequate remedy at law.
THE TRADE DRESS
43. Thousand Oaks’ Foghat smoker devices packaged with wood chips and a torch
bearing the Foghat Trade Dress have come to be known by the purchasing public throughout the
United States as products of the highest quality. As a result, the Foghat Trade Dress, together
with the goodwill associated with it, are of inestimable value to Thousand Oaks.
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44. The Foghat trade dress is non-functional, and inherently distinctive, or has
acquired secondary meaning, and serves to identify and indicate the source of Plaintiff’s goods to
the consuming public. Through Thousand Oaks’ extensive use and promotion of the Foghat
Trade Dress, Thousand Oaks distinguishes its products from the products of other businesses and
source and origin of Thousand Oaks’ products. Member of the public have become familiar with
Thousand Oaks’ Foghat Trade Dress, and have come to recognize and associate it exclusively
with Thousand Oaks. Thousand Oaks has acquired a valuable reputation and goodwill among the
public as a result of such association.
45. Since its first advertisement, offer, and sale of the Foghat product in or around
November 2020, Thousand Oaks has continuously used the Foghat trade dress, which Thousand
Oaks has prominently displayed and used in advertising and marketing of its products in print
advertising and brochures, on multiple e-commerce websites on the Internet, and other
promotional and trade show marketing materials.
46. Thousand Oaks’ Foghat product line has been a huge commercial success, selling
tens of thousands of products directly or through authorized resellers nationwide. The
commercial success of the product line has resulted in widespread recognition of Thousand Oaks
as the source of the Foghat Trade Dress.
47. The Thousand Oaks Foghat Trade Dress comprises packaging of a smoker device,
storage tin with wood chips, and optionally a torch set up in a unique and attractive
configuration. One example of the Foghat Drade Dress from Amazon is shown below:
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48. Competitors to Thousand Oaks and/or sellers on Infringing Webstores, namely
Amazom.com, have, without authorization, unlawfully directly and deliberately copied the
Foghat Trade Dress in interstate commerce, thereby reinforcing the recognized commercial
success and secondary meaning of the Foghat Trade Dress. As one example, an Amazon seller’s
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Infringing Webstore, copying the Foghat Trade Dress, is shown below for Defendant Doe#143:
49. Upon information and belief, Defendants will continue to register or acquire
listings for the purpose of selling Accused Products that infringe upon the Foghat Trade Dress
unless preliminarily and permanently enjoined.
50. Plaintiff has no adequate remedy at law.
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COUNT ONE
INFRINGEMENT OF UNITED STATES Patent No. 11,744,256
(35 U.S.C. § 271)
51. The allegations of each of the paragraphs above are hereby re-alleged and
incorporated herein by reference.
52. Defendants have infringed, and continue to directly infringe, at least claims 1-19
of the ’256 Patent under 35 U.S.C. § 271(a), by making, using, offering to sell, selling and
importing the Accused Products in the United States.
53. Upon information and belief, Defendants have indirectly infringed one or more of
the claims of the ’256 Patent under 35 USC §271(b) by providing Accused Products, with
instructions, which are used to impart smoky flavors to beverages and foodstuffs, thereby
inducing others to use the Accused Products in an infringing manner.
54. As a result of Defendants’ infringement of the ’256 Patent, Plaintiff has suffered
and will continue to suffer damages in an amount not yet determined, of at least a reasonable
royalty.
55. Defendants will continue to register or acquire listings for the purpose of selling
Accused Products that infringe upon the ’256 Patent unless preliminarily and permanently
enjoined.
56. The Defendants have infringed the ’256 Patent through the aforesaid acts and will
continue to do so unless enjoined by this Court. Defendants’ wrongful conduct have caused
Plaintiff to suffer irreparable harm resulting from the loss of its lawful patent rights to exclude
others from making, using, selling, offering for sale, and importing the patented invention.
Plaintiff is entitled to injunctive relief pursuant to 35 U.S.C. § 283.
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COUNT TWO
FEDERAL TRADE DRESS INFRINGEMENT
(15 U.S.C. § 1125(a); Sec. 43(a) of the Lanham Act)
57. The allegations of each of the paragraphs above are hereby re-alleged and
incorporated herein by reference.
58. Thousand Oaks owns the rights to the trade dress for the Foghat product
packaging and has standing to maintain an action for trademark infringement under the
Trademark Statute 15 U.S.C. § 1114.
59. Thousand Oaks has continuously used its Foghat Trade Dress in Virginia
commerce and interstate commerce since its first dates of use, since at least November 2020, and
before the formation and sale of the Defendants’ Accused Products and Infringing Webstores.
60. The Foghat Trade Dress is distinctive and/or at least has acquired secondary
meaning.
61. Defendants are and at the time of their actions complained of herein were actually
aware that Thousand Oaks is the creator, user, and owner of the Foghat Trade Dress.
62. Defendants intentionally and knowingly used in commerce the Foghat Trade
Dress, by offering, advertising, promoting, retailing, selling, and distributing similar or the same
products, albeit knock-off products, with or using the Foghat Trade Dress, knowing such acts
would create a likelihood of confusion among consumers and others, and caused such goods to
enter into interstate commerce.
63. Defendants directly and intentionally reproduced, copied, and/or colorably
imitated the Foghat Trade Dress and applied such reproductions, copies, or colorable imitations
to labels, signs, prints, packages, website pages, products, and/or advertisements intended to be
used in commerce upon or in connection with the sale, offering for sale, distribution, and/or
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advertising of Defendants’ goods.
64. The Defendants’ unauthorized use of the Foghat Trade Dress infringes on
Thousand Oaks’ rights in its Trade Dress and has and will continue to have the effect of causing
confusion, initial interest confusion, reverse confusion, mistake, or deception as to the source and
origin of Defendants’ products to deceive the public by passing off Defendants’ products as
being manufactured, sponsored, or otherwise approved by or connected with Thousand Oaks.
65. Defendants did not and failed to obtain the consent or authorization of Thousand
Oaks as the owner of the Foghat Trade Dress to deal in and commercially distribute market and
sell products bearing the Foghat Trade Dress, or use the Foghat trade dress in confusingly similar
manners, in commerce.
66. Thousand Oaks’ use of the Foghat Trade Dress was well before the first offer for
sale of the Defendants’ products.
67. The Defendants’ egregious and intentional use and/or sale of items bearing or
using trade dress confusingly similar to the Foghat Trade Dress is likely to cause confusion, or to
cause mistake, or to deceive, mislead, betray, and defraud customers who believe that
Defendants’ items are authentic products manufactured by Thousand Oaks.
68. The Defendants’ acts have been committed with knowledge of Thousand Oaks’
exclusive rights and goodwill in its Trade Dress, as well as with bad faith and the intent to cause
confusion or to cause mistake and to deceive.
69. The Defendants’ acts have caused Thousand Oaks to lose control over the
reputation and goodwill associated with the Foghat Trade Dress. The Defendants’ acts have
damaged Thousand Oaks’ business reputation and have impaired, blurred, and tarnished
Thousand Oaks’ goodwill in the Foghat Trade Dress.
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70. Thousand Oaks has suffered damages and the Defendants have obtained profits
and/or unjust enrichment as a result of the Defendants’ wrongful conduct.
71. Thousand Oaks has suffered and will continue to suffer substantial and irreparable
injury, loss and damage to its rights in and to the Foghat Trade Dress and the goodwill associated
therewith, for which it has no adequate remedy at law; thus Thousand Oaks requests injunctive
relief.
72. The Defendants’ continued and knowing use of the Foghat Trade Dress without
Thousand Oaks’ consent or authorization constitutes intentional infringement of Thousand Oaks’
Trade Dress in violation of §32 of the Lanham Act, 15 U.S.C. § 1114. Based on the intentional
infringement and the Defendants’ acts described above, Thousand Oaks is entitled to injunctive
relief as well as monetary damages, and other remedies provided by §§ 1116, 1117, and 1118,
including the Defendants’ profits, treble damages, prejudgment interest, and attorney’s fees.
73. The balance of hardships favors Thousand Oaks.
74. Preventing use by Defendants of the Foghat Trade Dress is in the public interest.
PRAYER FOR RELIEF
A. For a judgment declaring that Defendants have infringed the ’256 Patent;
B. For a judgment declaring that Defendants’ infringement of the ’256 Patent has been
willful;
C. For a grant of a preliminary and permanent injunction pursuant to 35 U.S.C. §283,
enjoining the Defendant from further acts of infringement;
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D. For a judgment awarding Plaintiff compensatory damages as a result of Defendants’
infringement sufficient to reasonably and entirely compensate Plaintiff for
infringement of the ’256 Patent in an amount to be determined at trial;
E. For a judgment and order awarding a compulsory ongoing royalty;
F. For a judgment declaring that Defendant's infringement was willful and for
enhancement of damages in accordance with 35 U.S.C. § 284;
G. That Defendants, their officers, agents, servants, employees, attorneys, confederates,
and all persons in active concert with them be temporarily, preliminarily, and
permanently enjoined and restrained from:
(i) using the Plaintiff’s Trade Dress or products made under the or Patents-in-
Suit, or any reproduction, counterfeit, copy, or colorable imitation of the
Plaintiff’s Trade Dress or products under the Patents-in-Suit in connection
with the distribution, advertising, offer for sale, and/or sale of merchandise
not the genuine products of the Plaintiff;
(ii) passing off, inducing, or enabling others to sell or pass off any Counterfeit
Products as genuine products made and/or sold by the Plaintiff;
(iii) committing any acts calculated to cause consumers to believe that
Defendants’ Products are those sold under the authorization, control, or
supervision of Plaintiff, or are sponsored by, approved by, or otherwise
connected with Plaintiff;
(iv) further infringing the Plaintiff's Patents-in-Suit or Trade Dress and
damaging Plaintiff’s goodwill;
(v) competing unfairly with Plaintiff in any manner;
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(vi) shipping, delivering, holding for sale, distributing, returning, transferring
or otherwise moving, storing, or disposing of in any manner products or
inventory not manufactured by or for Plaintiff, nor authorized by Plaintiff
to be sold or offered for sale, and that bear the Designs or Marks or any
reproductions, counterfeit copies, or colorable imitations thereof;
(vii) using, linking to, transferring, selling, exercising control over, or
otherwise owning or operating the Infringing Webstores, listings, or any
other domain name that is being used to sell or is the means by which
Defendants could continue to sell Products violating Thousand Oaks’
Trade Dress or infringing the Patents-in-Suit;
H. For such other relief to which Plaintiff is entitled under the applicable United States
laws and regulations or as this Court deems just and proper.
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DEMAND FOR JURY TRIAL
Pursuant to the Federal Rules of Civil Procedure Rule 38(b), Plaintiff hereby demands
trial by jury as to all claims in this litigation.
Respectfully submitted,
WHITESTONE LAW PLLC
by Counsel
__/s/__Kendal M. Sheets
By: Ken Sheets
Virginia bar number 44537
WHITESTONE LAW
1850 Towers Crescent Plaza, #550
Tysons, Virginia 22182
Phone: 703-489-8937
Fax: (703) 890-9418
ksheets@whitestone.law
ksheets@sheetspatent.com
Attorney for Thousand Oaks Barrel
Co., LLC
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JS 44 (Rev. 04/21) CIVIL COVER
Case 1:23-cv-01563 Document 1-1 FiledSHEET
11/16/23 Page 1 of 2 PageID# 24
The JS 44 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, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS
The Partnerships, Companies, and Unincorporated
THOUSAND OAKS BARREL CO., LLC
Associations Identified on Schedule A
(b) County of Residence of First Listed Plaintiff Prince William County County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Ken Sheets, Whitestone Law PLLC, 1850 Towers
Crescent Plaza, #550, Tysons, Virginia 22182, Phone:
703-489-8937
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
1 U.S. Government ✖ 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4
of Business In This State
2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
Citizen or Subject of a 3 3 Foreign Nation 6 6

Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act
120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC
130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a))
140 Negotiable Instrument Liability 367 Health Care/ INTELLECTUAL 400 State Reapportionment
150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust
& Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking
151 Medicare Act 330 Federal Employers’ Product Liability ✖ 830 Patent 450 Commerce
152 Recovery of Defaulted Liability 368 Asbestos Personal 835 Patent - Abbreviated 460 Deportation
Student Loans 340 Marine Injury Product New Drug Application 470 Racketeer Influenced and
(Excludes Veterans) 345 Marine Product Liability 840 Trademark Corrupt Organizations
153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR 880 Defend Trade Secrets 480 Consumer Credit
of Veteran’s Benefits 350 Motor Vehicle 370 Other Fraud 710 Fair Labor Standards Act of 2016 (15 USC 1681 or 1692)
160 Stockholders’ Suits 355 Motor Vehicle 371 Truth in Lending Act 485 Telephone Consumer
190 Other Contract Product Liability 380 Other Personal 720 Labor/Management SOCIAL SECURITY Protection Act
195 Contract Product Liability 360 Other Personal Property Damage Relations 861 HIA (1395ff) 490 Cable/Sat TV
196 Franchise Injury 385 Property Damage 740 Railway Labor Act 862 Black Lung (923) 850 Securities/Commodities/
362 Personal Injury - Product Liability 751 Family and Medical 863 DIWC/DIWW (405(g)) Exchange
Medical Malpractice Leave Act 864 SSID Title XVI 890 Other Statutory Actions
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 790 Other Labor Litigation 865 RSI (405(g)) 891 Agricultural Acts
210 Land Condemnation 440 Other Civil Rights Habeas Corpus: 791 Employee Retirement 893 Environmental Matters
220 Foreclosure 441 Voting 463 Alien Detainee Income Security Act FEDERAL TAX SUITS 895 Freedom of Information
230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 870 Taxes (U.S. Plaintiff Act
240 Torts to Land 443 Housing/ Sentence or Defendant) 896 Arbitration
245 Tort Product Liability Accommodations 530 General 871 IRS—Third Party 899 Administrative Procedure
290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION 26 USC 7609 Act/Review or Appeal of
Employment Other: 462 Naturalization Application Agency Decision
446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration 950 Constitutionality of
Other 550 Civil Rights Actions State Statutes
448 Education 555 Prison Condition
560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
1 Original 2 Removed from 3 Remanded from 4 Reinstated or 5 Transferred from 6 Multidistrict 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
35 U.S.C. §271 Patent infringement
VI. CAUSE OF ACTION Brief description of cause:
Patent infringement of utility patent; trade dress under 15 U.S.C. § 1125(a).
VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: ✖ Yes No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER 1:23-cv-01560
DATE SIGNATURE OF ATTORNEY OF RECORD
Nov 16, 2023 /s/ Kendal M. Sheets
FOR OFFICE USE ONLY
RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

Case 1:23-cv-01563 Document 1-1 Filed 11/16/23 Page 2 of 2 PageID# 25
JS 44 Reverse (Rev. 04/21)
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then
the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".
II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.
V. Origin. Place an "X" in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to
changes in statute.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service.
VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
SCHEDULE A
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152 B0C7BG4JQ4 AV8KDHI9VW70K XIAOXINCHAO CN
153 B0BRLDV2VH AW2S0MYSF0F3U EMKA LLC US
154 B0BJ7RTPVR AWFBXHESU4G1I The Cotton Tail US
155 B0CBR8KZS4 AWGUNKV5A8ZCJ ZHI-TONG TRADING CO., LTD. KH
156 B0CD7B759G AXXFC4DNE9LKB xianfeibotedangshangmaoyouxiangongsi CN
157 B0C8SCDN46 AY341BUU2FYUA Ti Long Xiao CN
158 B0CG8Z8F4R AYBZ8JO1CUJC7 Wanron CN
159 B0C937LFM1 AZQ2GNFGDW4PR Huayuan US CN
160 B09Y8C67ZP AZQ9AD0178Q0J One Charm Thing CA
161 B0C2C1VF4R AWXY9MLZFVUR3 AWAZOLMN CN
5
EXHIBIT A
EXHIBIT B
Exemplary Chart for U.S. Patent No. 11,744,256

Claim 1
A device The Amazon.com sellers page lists a product for sale under ASIN B0BQRG43B6 that is a “Cocktail Smoker Kit. . . Drink
for Smoker for Infusing Smoke in Whiskey/Bourbon. . . ” which is a device for imparting smoked flavors to beverages and
imparting foodstuffs.
smoked
flavors to
beverages
and
foodstuffs,
comprising:
1
a base The “Drink Smoker” is a “base” unit that has a fuel chamber at the upper end that can hold wood chips:
having a
fuel
chamber
portion at
its upper
fuel chamber portion
end and
base
2
a conduit The Drink Smoker has an element protruding at the bottom of the base that is a conduit portion.
portion at
its lower
end,
conduit portion
3
the fuel The fuel chamber for the Drink Smoker has a circular wall on the inside with a hexagonal outer wall. The wall defines a
chamber perimeter of the fuel chamber portion.
portion
comprising
an upper upper wall
wall
portion
defining a
perimeter
edge of the
fuel opening
chamber floor
portion and
a floor
defining a
bottom end,
the floor
extending
from the
upper wall
portion to
an opening
in the floor
The fuel chamber for the Drink Smoker has a floor of the fuel chamber portion that extends from the wall to an opening in
the floor.
wherein the The fuel chamber of the Drink Smoker is oriented to hold wood chips for burning. In the “How to Use” instructions, the
fuel seller shows the consumer how to place a pinch of wood chips in the fuel chamber for burning.
chamber
portion is
oriented to
hold fuel,
and
4
wherein the The conduit portion of the Drink Smoker is oriented below the floor of the fuel chamber.
conduit
portion is
disposed
below the
floor
5
fuel chamber
Conduit portion below floor of

fuel chamber
and The channel through the conduit of the Drink Smoker is shown on the seller’s webstore with a mesh screen inserted into it.
comprises a
channel
through the
conduit
portion
6
channel
so that, The conduit portion of the drink smoker has holes, or apertures, in its walls that lead to the channel:
when the
fuel in the
fuel
chamber
portion is
ignited, the
channel
facilitates
flow of
smoke
downward
from the
fuel
chamber aperture
portion
through at
least one
aperture
7
that The “How to Use” instructions demonstrate that when the fuel in the fuel chamber is ignited by a blow torch, the smoke
extends from the ignited fuel flows down from the fuel chamber, through the channel, and out the holes in the conduit into the
from the drinking glass.
channel
space
Place wood chips
through a Ignite the wood chips with
wall of the fuel into chamber
conduit a torch and create smoke
portion
Smoke flows down,

not up, through the
channel in the conduit
and out the holes in the
conduit

Thousand Oaks Barrel v. Schedule A (EDVA) - UP Complaint

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Thousand Oaks Barrel v. Schedule A (EDVA) - UP Complaint

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Case 1:23-cv-01563 Document 1 Filed 11/16/23 Page 1 of 23 PageID# 1

IN THE UNITED STATES DISTRICT COURT

COMPLAINT FOR PATENT INFRINGEMENT

alleges as follows for its Complaint against Defendants in Schedule “A.”

THE NATURE OF THIS ACTION

correct copy of the ’256 Patent is attached as Exhibit A.

4. Defendants identified in Schedule “A” are all believed to be individuals,

5. Defendants conduct their operations through fully interactive commercial

to Federal Rule of Civil Procedure 17(b).

oftentimes as partners and/or suppliers. Upon information and belief, Defendants on

JURISDICTION AND VENUE

15 U.S.C. § 1125(a); Sec. 43(a) of the Lanham Act.

judicial district and have committed acts of infringement in this District.

venue statutes related to domestic corporations to foreign corporations).

BACKGROUND AND GENERAL ALLEGATIONS

irreparably damage, Plaintiff.

Virginia and the Eastern District of Virginia.

Plaintiff’s Products via legitimate webstores represented a significant portion of Plaintiff’s

20. The ’256 Patent is presumed valid under 35 U.S.C. § 282.

1. A device for imparting smoked flavors to beverages and foodstuffs,

Amazon.com platform and other Internet platforms using Infringing Webstores.

importing into the United States the Accused Products.

induce infringement of the ’256 Patent.

Defendants’ Accused Products directly infringe claims of the ’256 Patent.

26. Attached as Exhibit B to the Complaint is a claim chart demonstrating the

27. Defendants and their customers have continued infringement.

Patent. An exemplary Accused Product from Defendant Doe#68 (ASIN B0BQRG43B6) is

shown below with reference to claim 1:

devices in the United States.

to impart smoked flavors to beverages and foodstuffs.

claims of the ’256 Patent under 35 USC §271(a):

"(a) Except as otherwise provided in this title, whoever without authority

of the ’256 Patent.

the claims of the ’256 Patent under 35 USC §271(b):

(b) Whoever actively induces infringement of a patent shall be liable as an

38. Defendants, without authorization or license from Plaintiff, continue to infringe

offer to sell and sell Accused Products at least via Amazon.com.

intentionally continued their knowing infringement.

preliminarily and permanently enjoined.

42. Plaintiff has no adequate remedy at law.

THE TRADE DRESS

public as a result of such association.

promotional and trade show marketing materials.

tens of thousands of products directly or through authorized resellers nationwide. The

as the source of the Foghat Trade Dress.

48. Competitors to Thousand Oaks and/or sellers on Infringing Webstores, namely

unless preliminarily and permanently enjoined.

50. Plaintiff has no adequate remedy at law.

incorporated herein by reference.

importing the Accused Products in the United States.

inducing others to use the Accused Products in an infringing manner.

Plaintiff is entitled to injunctive relief pursuant to 35 U.S.C. § 283.

incorporated herein by reference.

Trademark Statute 15 U.S.C. § 1114.

enter into interstate commerce.

63. Defendants directly and intentionally reproduced, copied, and/or colorably

advertising of Defendants’ goods.

being manufactured, sponsored, or otherwise approved by or connected with Thousand Oaks.

sale of the Defendants’ products.

Defendants’ items are authentic products manufactured by Thousand Oaks.

confusion or to cause mistake and to deceive.