buzz bee toys - amended complaint

Michael F. Snyder, Esquire John P. Sullivan, Esquire VOLPE AND KOENIG, P.C. United Plaza 30 S. 1 ih Street Philadelphia, P A 19103 Telephone: (215) 568-6400 Facsimile: (215) 568-6499

Attorneys for Plaintiff, Buzz Bee Toys) Inc.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

BUZZ BEE TOYS, INC.

Plaintiff,

v.

SWIMWAYS CORPORATION, and TARGET CORPORATION

Defendants.

CIVIL ACTION NO. 1: 14-cv-01948-JBS-KMW

Hon. Jerome B. Simandle, U.S.D.J. Hon. Karen M. Williams, U.S.M.J.

JURY TRIAL DEMANDED

AMENDED VERIFIED COMPLAINT

As its Amended Verified Complaint, Plaintiff Buzz Bee Toys, Inc. ("Buzz

Bee") alleges against Defendants Swimways Corporation and Target Corporation

as follows:

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Case 1:14-cv-01948-JBS-KMW Document 7 Filed 04/10/14 of 47 PageID: 163

PARTIES

1. Plaintiff, Buzz Bee Toys, Inc. ("Buzz Bee") is a corporation organized

and existing under the laws of the State of Delaware, with a business address at

309 Fellowship Road, Suite 105,. Mt. Laurel, NJ 08054.

2. Upon information and belief, Defendant, Swim ways Corporation

("Swimways"), is a corporation organized under the laws of Virginia, having a

business address at 5816 Ward Court, Virginia Beach, VA 23455.

3. Upon information and belief, Defendant, Target Corporation

("Target"), is a Minnesota corporation with its principal place of business in

Minneapolis, Minnesota.

JURISDICTION AND VENUE

4. This action arises under the Lanham Act, 15 U.S.C. § 1051 , et seq.,

and under principles of state statutory and common law.

5. This Court has original jurisdiction over the subject matter of this

action pursuant to 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331 and 1338 and has

supplemental j urisdiction pursuant to 28 U.S.C. § 1367(a).

6. The amount in controversy is greater than $75,000. Upon information

and belief, there is diversity of citizenship between and among Buzz Bee and the

Defendants.

7. Venue is proper in this District pursuant to 28 U.S.C. § 1391.

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8. Upon information and belief, Swimways is a company that conducts

business throughout the United States and has specifically conducted business

within the State of New Jersey, and within this District, and is subject to the

jurisdiction of this Court under New Jersey's long-arm statute.

9. Upon information and belief, Target is a company that conducts

business throughout the United States and has specificaHy conducted business

within the State of New Jersey, and within this District, and is subject to the

jurisdiction of this Court under New Jersey's long-arm statute.

BACKGROUND

10. Buzz Bee designs, creates, promotes, markets, distributes, and

provides customer support for various toys including water squirting toys ("Buzz

Bee's Product Line").

11. Buzz Bee's Product Line is sold through Buzz Bee Toys (HK) Ltd.,

and promoted throughout the United States, including in this District.

12. Each toy in Buzz Bee's Product Line has a unique ornamental

appearance, constituting distinctive and protectable trade dress, which are featured

in the packaging and display of the goods, and the goods themselves.

13. Buzz Bee is the owner of the trade dress in Buzz Bee's Product Line,

and all goodwill in Buzz Bee's Product Line inures to Buzz Bee.

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The AVENGER Water Squirting Toys

14. One of Buzz Bee toy products is the AVENGER water squirting toy,

shown in Exhibit A, part of Buzz Bee's WATER WARRIORS line, which has

been in use since at least 2007.

15. The AVENGER is packaged so that the product dominates the

packaging, and is immediately perceived by consumers viewing the packaging, as

shown in Exhibit A and reproduced below:

16. The AVENGER water squirting toys feature an inherently distinctive

appearance constituting a protectable trade dress.

17. The trade dress of the AVENGER water squirting toys can be

articulated as fo11ows, from the rear of the toy to the front of the toy: (i) a raised

portion (A) along the top of the rear body portion, having a downwardly sloping

body element (B) crossing forwardly along the rear body portion, a forward wavy

top projection (C) and a forward wavy lower projection (D) with a wave-like

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arcuate design pointing rearward (E) formed between the top projection and the

lower projection; (ii) an irregularly shaped inlay (F) having a forward point located

in the rear body portion; (ii i) a front and bottom body portion having a

complementary wave-like shape (G) to meet the rear body portion, a grip portion

having a raised back (H), a downwardly extending trigger guard portion (I) having

an arcuate design inlay (J) pointing forward, a forward raised conical portion (K);

(iv) a forward stock pmtion having three sloped ridges (L); and (v) a cylindrical

orange muzzle portion (M). These elements are shown in the annotated photo

shown as Exhibit B.

18. The packaging for the AVENGER water squirting toy prominently

displays the foregoing features set forth in paragraph 17, so that a consumer

viewing the packaging will immediately see and appreciate such features.

19. The trade dress in the AVENGER water squirting toy, both with the

packaging and removed from the packaging, is collectively referred to herein as the

"AVENGER Trade Dress."

20. The AVENGER Trade Dress is wholly non-·functional. The water

squirting elements providing the function of the AVENGER water squirting toys

are internal mechanisms.

21. The AVENGER water squirting toy is a popular amongst consumers,

with over 100,000 units sold, totaling over $200,000 in sales.

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22. The AVENGER Trade Dress has been used in commerce

continuously and exclusively since at least 2007 in connection with water squirting

toys.

23. The AVENGER water squirting toy is and has been offered for sale

and sold through retail stores, including, but not limited to, Target, and is widely

available for purchase over the Internet.

24. The packaging for the AVENGER water squirting toys, including the

featured appearance of the AVENGER water squirting toys, is inherently

distinctive.

25. The AVENGER Trade Dress has additionally achieved distinctiveness

through, inter alia, at least six ( 6) consecutive years of use, promotion, marketing

and sales of the AVENGER water squirting toys, through various retail sources.

Through at least these efforts, the AVENGER Trade Dress has acquired secondary

meamng.

26. The AVENGER Trade Dress has come to represent Buzz Bee as the

source of origin of Buzz Bee's AVENGER water squirting toys.

27. The AVENGER Trade Dress has become uniquely associated with,

and hence identified with, Buzz Bee.

28. The AVENGER Trade Dress is an asset of significant value to Buzz

Bee as a symbol of the quality goods and the associated goodwill.

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29. In the at least six (6) consecutive years since the AVENGER Trade

Dress was adopted, consumers and users of water squitiing toys and the trade have

come to recognize the AVENGER Trade Dress as a designator of source for water

squirting toys.

30. By virtue of continuous and exclusive use in commerce of the

AVENGER Trade Dress for at least the last six (6) years im connection with water

squirting toys, the AVENGER water squirting toy has become well and favorably

known to the relevant trade and consuming public by vittue of the AVENGER

Trade Dress.

31. As a result of the more than six ( 6) years of promotion and sales of the

popular AVENGER water squirting toys featuring the AVENGER Trade Dress,

such trade dress has achieved a high degree of recognition and fame in the relevant

industry, signifying the AVENGER water squirting toys as high quality water

squirting toys, with Buzz Bee as the sole source of those water squirting toys.

32. Since long prior to the acts of Swimways complained of herein , the

public has come to associate AVENGER Trade Dress as a source designator for

Buzz Bee' s water squirting toys.

The KWIK GRIP XL Water Squirting Toys

33. One of Buzz Bee?s toy products is the KWIK GRIP XL water

squirting toy, pati ofBuzz Bee' s WATER WARRIORS line, which has been in use

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since at least 2003. Examples of the KWIK GRIP XL water squirting toys are

shown in Exhibit C.

34. The KWIK GRIP XL water squirting toys are packaged so that the

product dominates the packaging, and is immediately perceived by consumers

viewing the packaging, as shown in Exhibit C. The KWIK GRIP XL water

squirting toys are shown below in their three-pack packaging:

35. The KWIK GRIP XL water squirting toys feature an inherently

distinctive appearance constituting a protectable trade dress.

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36. The trade dress of the KWIK GRIP XL water squirting toys can be

articulated as follows, from the rear of the toy to the front of the toy: (i) a semi

transparent dome fill tank [A]; (ii) an oval body element overlaying the tank [B];

(iii) a grip having two rear ridges [C]; (iv) a trigger guard having a ridged insert at

the front end of the trigger guard [D]; (v) side and top arcuate body pieces [E]; (vi)

a futuristic coil design element [F] having three forwardly-slanted "bubble"

protrusions [G] and a forwardly pointing "bubble" arrow portion [H] with a larger

dot [I] and a smaller dot [J]; and, (vii) a muzzle portion having horizontal ridges

[K]. These elements are shown in the annotated photo shown as Exhibit D.

37. The packaging for the KWIK GRIP XL water squirting toys

prominently displays the foregoing features set forth in paragraph 36, so that a

consumer viewing the packaging will immediately see and appreciate such

features.

38. The trade dress in the KWIK GRIP XL water squirting toys, both with

the packaging and removed from the packaging, is collectively referred to herein as

the "KWIK GRIP XL Trade Dress."

39. The KWIK GRIP XL Trade Dress is wholly non-functional. The

water squirting elements providing the function of the KWIK GRIP XL water

squirting toys are internal mechanisms.

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40. The KWIK GRIP XL water squirting toy is a popular amongst

consumers, with over 2,000,000 units sold, totaling over $4,000,000 in sales.

41. The KWIK GRIP XL water squirting toy has been used in commerce

continuously and exclusively since at least 2003 in connection with water squirting

toys.

42. The KWIK GRIP XL water squirting toy is and has been offered for

sale and sold through retail stores, including, but not limited to, Target, and widely


43. The packaging for the KWIK GRIP XL water squirting toys,

including the featured appearance of the KWIK GRIP XL water squirting toys, is

inherently distinctive.

44. The KWIK GRIP XL Trade Dress has additionally achieved

distinctiveness through, inter alia, at least ten (1 0) consecutive years of use,

promotion, marketing and sales of the KWIK GRIP XL water squirting toys,

through various retail sources. Through at least these efforts, the KWIK GRIP XL

Trade Dress has acquired secondary meaning.

45 . The KWIK GRIP XL Trade Dress has come to represent Buzz Bee as

the source of origin of Buzz Bee's KWIK GRIP XL water squirting toys.

46. The KWIK GRIP XL Trade Dress has become uniquely associated

with, and hence identified with, Buzz Bee.

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4 7. The KWIK GRIP XL Trade Dress is an asset of significant value to

Buzz Bee as a symbol of the quality goods and the associated goodwill.

48. In the at least ten ( 1 0) years since the KWIK GRIP XL Trade Dress

has been in use, consumers and users of water squirting toys and the trade have

come to recognize the KWIK GRIP XL Trade Dress as a designator of source for

water squirting toys.

49. By virtue of continuous and exclusive use in commerce of the KWIK

GRIP XL Trade Dress for at least the last ten (10) years in connection with water

squirting toys, the KWIK GRIP XL water squirting toys have become well and

favorably known to the relevant trade and consuming public by virtue of the

KWIK GRIP XL Trade Dress.

50. As a result of the more than ten (10) years of promotion and sales of

the popular KWIK GRIP XL water squirting toys featuring the KWIK GRIP XL

Trade Dress, such trade dress has achieved a high degree of recognition and fame

in the relevant industry, signifying the KWIK GRIP XL water squirting toys as

high quality water squirting toys, with Buzz Bee as the sole source of those water

squirting toys.

51. Since long prior to the acts of Swimways complained of herein, the

public has come to associate KWIK GRIP XL Trade Dress as a source designator

for Buzz Bee's water squirting toys.

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The ARGON Water Squirting Toys

52. One of Buzz Bee's toy products is the ARGON water squirting toy,

part of Buzz Bee's WATER WARRIORS line. Examples of the ARGON water

squirting toys are shown in Exhibit E.

53. The ARGON Trade Dress has been in use since at least 2004, and was

used through July 2009.

54. Buzz Bee plans to re-launch the ARGON water squirting toy featuring

the ARGON Trade Dress within the next year.

55. At no time did Buzz Bee plan to abandon or otherwise permanently

discontinue the ARGON water squirting toy featuring the ARGON Trade Dress.

56. The ARGON water squirting toys are packaged so that the product

dominates the packaging, and is immediately perceived by consumers viewing the

packaging, as shown in Exhibit E. The ARGON water squirting toy is shown

below:

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57. The ARGON water squirting toys feature an inherently distinctive


58. The trade dress of the ARGON water squirting toys can be articulated

as follows, from the rear of the toy to the front of the toy: (i) an upper tank portion

[A] defining the upper rear body; (ii) an overlaying side portion [B] including an

oval body element overlaying the tank [C], four futuristic bubble portions

extending downward adjacent the oval body element [D], and two forwardly

extending sweeping projections [E]; (iii) a grip having a ridged handle portion [F];

(iv) a lower central circular element [G] in front of the trigger guard, having radial

projections and ridges [H] for a "sun-like" appearance; (v) a forward side element

[I] including two bubble-like forwardly sloping upward projections [J] and a

forward oval element [K] ; (vi) a forwardly pointing L-shaped projection [L] along

the upper front spine of the body, defining a triangular opening [M]; (vii) a conical

muzzle portion having raised trapezoidal ridges [N]; and, (viii) a ridged forestock

grip [0]. These elements are shown in the annotated photo shown as Exhibit F.

59. The packaging for the ARGON water squirting toys prominently



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60. The trade dress in the ARGON water squirting toys, both with the

packaging and removed from the packaging, is collectively referred to herein as the

"ARGON Trade Dress."

61. The ARGON Trade Dress is wholly non-functional. The water

squirting elements providing the function of the ARGON water squirting toys are

internal mechanisms.

62. The ARGON water squirting toy was and is popular amongst

consumers, with over 368,000 units sold, totaling over $1 ,584,000 in sales.

63 . The ARGON Trade Dress was used in commerce continuously and

exclusively in connection with water squirting toys from November 2004 through

July 2009.

64. The ARGON water squirting toy had been offered for sale and sold

through retail stores, including, but not limited to, Target, and widely and was


65. The packaging for the ARGON water squirting toys, including the

featured appearance of the ARGON water squirting toys, is inherently distinctive.

66. The ARGON Trade Dress has additionally achieved distinctiveness

through, inter alia, at least four ( 4) consecutive years of use, promotion, marketing

and sales of the ARGON water squirting toys, through various retail sources.

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Through at least these efforts, the ARGON Trade Dress has acquired secondaty

mean mg.

67. The ARGON Trade Dress has come to represent Buzz Bee as the

source of origin of Buzz Bee's ARGON water squirting toys.

68. The ARGON Trade Dress has become uniquely associated with, and

hence identified with, Buzz Bee.

69. The ARGON Trade Dress is an asset of significant value to Buzz Bee

as a symbol of the quality goods and the associated goodwill.

70. In the at least four (4) years the ARGON Trade Dress was sold,

consumers and users of water squirting toys and the trade have come to recognize

the ARGON Trade Dress as a designator of source for water squirting toys.


ARGON Trade Dress for at least four (4) years in connection with water squirting

toys, the ARGON water squirting toys have become well and favorably known to

the relevant trade and consuming public by virtue of the ARGON Trade Dress.

72. As a result of the at least four ( 4) years of promotion and sales of the

popular ARGON water squirting toys featuring the ARGON Trade Dress, such

trade dress has achieved a high degree of recognition and fame in the relevant

industry, signifying the ARGON water squirting toys as high quality water

squirting toys, with Buzz Bee as the sole source of those water squirting toys.

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public has come to associate ARGON Trade Dress as a source designator for Buzz

Bee's water squirting toys.

The XENON Water Squirting Toys

74. One of Buzz Bee's toy products is the XENON water squirting toy,

part of Buzz Bee's WATER WARRIORS line. Examples of the XENON water

squirting toys are shown in Exhibit G.

75 . Tbe XENON Trade Dress has been in use since at least 2004, and was

used through July 2009.

76. Buzz Bee plans to re-launch the XENON water squirting toy featuring

the XENON Trade Dress within the next year.

77. At no time did Buzz Bee plan to abandon or otherwise permanently

discontinue the XENON water squirting toy featuring the XENON Trade Dress.

78. The XENON water squirting toys were packaged so that the product

dominates the packaging, and is immediately perceived by consumers viewing the

packaging, as shown in Exhibit G. The XENON water squirting toy is shown

below:

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79. The XENON water squirting toys feature an inherently distinctive


80. The trade dress of tlhe XENON water squirting toys can be articulated

as follows, from the rear of the toy to the front of the toy: (i) an upper tank portion

[A] defining the upper rear body; (ii) a rearwardly pointing fang-shaped portion

[B] defming a sticker-receiving area [C]; (iii) a grip having a ridged handle portion

[D]; (iv) a lower central circular element [E] in front of the trigger guard, having

radial projections and ridges [F] for a "sun-like" appearance; (v) futuristic bubble

projections [G] on the sides of the body between elements (ii) and (iv); (vi) a

forward side arrow-head shaped element [H] having a notch [I] in the rear portion;

(vii) a forwardly pointing L-shaped projection [J] along the upper front spine of the

body, defining a triangular inset pmtion [K]; (vii) a conical muzzle pmtion having

raised fins [L]; (viii) a ridges forestock grip [M]; and (ix) an oval rear side element

[N] . These elements are shown in the annotated photo shown as Exhibit H.

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81. The packaging for the XENON water squirting toys prominently



82. The trade dress in the XENON water squirting toys, both with the

packaging and removed from the packaging, is collectively refened to herein as the

"XENON Trade Dress."

83. The XENON Trade Dress is wholly non-functional. The water

squirting elements providing the function of the XENON water squirting toys are

internal mechanisms.

84. The XENON water squirting toy was and is popular amongst

consumers, with over 238,000 units sold, totaling over $1,561,000 in sales.

85 . The XENON Trade Dress was used in commerce in connection with

water squirting toys continuously and exclusively since at least November 2004

through July 2009.

86. The XENON water squirting toy was offered for sale and sold through

retail stores, including, but not limited to, Target, and widely available for

purchase over the Internet.

87. The packaging for the XENON water squirting toys, including the

featured appearance of the XENON water squirting toys, is inherently distinctive.

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88. The XENON Trade Dress has additionally achieved distinctiveness

through, inter alia, at least four ( 4) consecutive years of use, promotion, marketing

and sales of the XENON water squirting toys, through various retail sources.

Through at least these efforts, the XENON Trade Dress has acquired secondary

mean mg.

89. The XENON Trade Dress has come to represent Buzz Bee as the

source of origin of Buzz Bee's XENON water squirting toys.

90. Tbe XENON Trade Dress has become uniquely associated with, and

hence identified with, Buzz Bee.

91. The XENON Trade Dress is an asset of significant value to Buzz Bee

as a symbol of the quality goods and the associated goodwill.

92. In the at least four ( 4) the XENON Trade Dress was sold, consumers

and users of water squirting toys and the trade have come to recognize the

ARGON Trade Dress as a designator of source for water squirting toys.


XENON Trade Dress for at least four (4) years in connection with water squirting

toys, the XENON water squirting toys have become well and favorably known to

the relevant trade and consuming public by virtue of the XENON Trade Dress.

94. As a result of the at least four ( 4) years of promotion and sales of the

popular XENON water squirting toys featuring the XENON Trade Dress, such

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trade dress has achieved a high degree of recognition and fame in the relevant

industry, signifying the XENON water squirting toys as high quality water

squitting toys, with Buzz Bee as the sole source of those water squirting toys.


public has come to associate XENON Trade Dress as a source designator for Buzz

Bee' s water squirting toys.

96. Buzz Bee's AVENGER, KWIK GRIP XL, ARGON, and XENON

water squirting toys are collectively referred to as "Buzz Bee' s WATER

WARRIORS Line," and the trade dress for Buzz Bee's WATER WARRIORS

Line described herein and shown in the attached Exhibits is referred to collectively

as "Buzz Bee's WATER WARRIORS Trade Dress" .

97. A special 3-pack of the KWIK GRIP XL water squirting toys were

created exclusively for Target, as shown in attached Exhibit C, where the

packaging states, "ONLY AT [TARGET STORES SYMBOL]".

98. On or around August 2013, one of Target's buying agents in the water

squirting toys department informed Buzz Bee that for the 2014 sales season Target

would no longer be stocking Buzz Bee' s WATER WARRIORS Line featuring

Buzz Bee's WATER WARRIORS Trade Dress.

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Swimways' Kick-Offs of Buzz Bee's WATER WARRIORS Line and Infringement of Buzz Bee's WATER WARRIORS Trade Dress

99. It was discovered by Buzz Bee that Swimways has targeted Buzz

Bee's WATER WARRIORS Line, knocking off and recreating the entire Buzz

Bee's WATER WARRIORS Line, using an infringing trade dress that is

confusingly similar to Buzz Bee's WATER W ARRJORS Trade Dress, and that

Target was now offering Swimways' infringing products in place of Buzz Bee's

WATER WARRIORS Line.

100. Swimways is selling knock-off and counterfeit copies of Buzz Bee's

WATER WARRIORS Line.

Swimways Infringing STORM Water Squirting Toy

101. A specimen of Swimways' STORM water squirting toy was

purchased from the Target store at Exton, PA, on February 7, 2014. Photographs

of the Swimways' STORM water squirting toys are shown in Exhibit I. A

photograph of the STORM water squirting toy is shown below:

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102. Upon information and belief, the price of the Swimways' STORM

water squirting toy is $7.99.

103. The Swimways' STORM is packaged, like Buzz Bee's AVENGER

water squirting toy, so that the product dominates the appearance of the packaging,

and is immediately apparent when a consumer views the product for sale.

104. Comparisons of Buzz Bee's AVENGER water squirting toy and

Swimways' STORM water squiding toy are shown below and in attached Exhibit

J:

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105. The Swimways' STORM water squirting toy is a "knock-off' copy of

Buzz Bee's AVENGER water squirting toy, copying precisely every design

element of the AVENGER Trade Dress.

106. Upon information and belief, and based on the exactness of the

copying, Swimways intentionally copied the AVENGER Trade Dress.

Swimways Infringing STRYKER Water Squirting Toy

107. A specimen of Swim ways ' STRYKER water squirting toy was

purchased from the Target store in Exton, PA, on February 7, 2014. Attached as

Exhibit K are photographs of Swimways' STRYKER water squirting toys.

108. The price of the three-pack of Swimways' STRYKER water squirting

toys was $5.99.

109. A comparison of Swimways' STRYKER water squirting toy and

Buzz Bee's KWIK GRIP XL water squirting toy, both as packaged and

unpackaged, are shown in attached Exhibit L and below:

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110. As shown by Exhibit L and above, Swimways ' STRYKER water

squirting toy is a "knock-off' copy of Buzz Bee's KWIK GRIP XL water squirting

toy, copying precisely the design element of the KWIK GRIP XL Trade Dress.

111 . Upon information and belief, and based on the exactness of the

copying, Swimways intentionally copied the KWIK GRIP XL Trade Dress.

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Swimways Infringing TSUNAMI Water Squirting Toy

112. A specimen of Swimways ' TSUNAMI water squirting toy was

purchased from the Target store at Exton, PA, on February 7, 2014. Attached as

Exhibit Mare photographs of Swimways' TSUNAMI water squirting toy.

113 . The price ofSwimways ' TSUNAMI water squirting toy was $9.99.

114. A comparison of Swimways' TSUNAMI water squirting toy and

Buzz Bee's ARGON water squirting toy, both as packaged and unpackaged, are

shown in attached Exhibit N and below:

115 . As shown by Exhibit N and above, Swimways' TSUNAMI water

squirting toy is a "knock-off' copy of Buzz Bee's ARGON water squirting toy,

copying precisely the design element of the ARGON Trade Dress.


copying, Swimways intentionally copied the ARGON Trade Dress.

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Swimways Infringing AVALANCHE Water Sguirting Toy

117. A specimen of Swimways' AVALANCHE water squirting toy was

purchased from the Target store at Exton, PA, on February 7, 2014. Attached as

Exhibit 0 are photographs of Swimways' AVALANCHE water squirting toy.

118. The price of Swimways' AVALANCHE water squirting toy was

$14.99.

119. A comparison of Swimways' AVALANCHE water squirting toy and

Buzz Bee's XENON water squirting toy, both as packaged and unpackaged, are

shown in attached Exhibit P and below:

120. As shown by Exhibit P and above, Swimways' AVALANCHE water

squirting toy is a "knock-off' copy of Buzz Bee's XENON water squirting toy,

copying precisely the design element of the XENON Trade Dress.


copying, Swimways intentionally copied the XENON Trade Dress.

122. Swimways' infringing STORM, STRYKER, TSUNAMI and

AVALANCHE water squirting toys are collectively referred to as "Swimways'

2985505-2 26


Infringing Line", and the trade dress in Swimways' Infringing Line is refen·ed to

collectively as ((Swimways' Infringing Trade Dress."

123. Upon information and belief, the acts of Swimways' complained of

herein were done in bad faith, and were willfully and intentionally designed to

damage and trade upon the previously established goodwill of Buzz Bee in the

Buzz Bee WATER WARRIORS Trade Dress.

124. Upon information and belief, the acts of Swimways' complained of

herein were undertaken by Swimways to purposefully displace and/or replace Buzz

Bee's WATER WARRIORS Line from Target stores, and replace Buzz Bee's

WATER WARRIORS Line from Target stores with infringing copies.

Target's Activities in Replacing Buzz Bee's WATER WARRIORS Line with Swim ways' Infringing Line of Knock-Offs

125. Prior to the acts complained of herein, Buzz Bee's WATER

WARRIORS Line featuring Buzz Bee's WATER WARRIORS Trade Dress were

sold through Target.

126. Upon information and belief, Target aided, abetted, assisted, induced

and/or contributed to Swimways in creating and/or selling the knock-offs of Buzz

Bee's WATER WARRIORS Line, featuring Buzz Bee's WATER WARRIORS

Trade Dress.

127. Upon information and belief, upon discontinuing selling Buzz Bee' s

water squirting toy product line, Target, with the assistance of with Swimways,

2985505-2 27


sought to recreate, and did in recreate, the same water squirting gun product line,

having the same trade dress, or a confusingly similar trade dress, as the Buzz Bee's

WATER WARRIORS Line, featuring Buzz Bee's WATER WARRIORS Trade

Dress, in order to trade upon the established goodwill of Buzz Bee without

compensation to Buzz Bee and to Buzz Bee's detriment.

128. Upon information and belief, Target sought to offer a cheaper and/or

competing version of Buzz Bee's WATER WARRIORS Line, all while

maintaining the same trade dress as the Buzz Bee's WATER WARRIORS Trade

Dress, in order to trade upon the goodwill of Buzz Bee without compensation to

Buzz Bee.

129. Upon information and belief, Target's actions were willful, intentional

and in bad faith.

130. By the acts complained of herein, Target replaced on its store shelves

Buzz Bee's WATER WARRIORS Line with Swimways' Infringing Line of

knock-off water squirting toys, all to the detriment to Buzz Bee.

COUNT I FEDERAL UNFAIR COMPETITION

AND FALSE DESIGNATION OF ORIGIN (Swim ways)

131. The allegations of paragraphs 1 through 130 are incorporated herein

by reference as though fully set forth herein.

2985505-2 28


132. This cause of action arises under the trademark laws of the United

States, Lanham Act§ 43(a), 15 U.S.C. § 1125(a).

133. Swimways has adopted and is now using a colorable imitation of

Buzz Bee's WATER WARRIORS Trade Dress for goods which are identical to

those offered by Buzz Bee.

134. The trade dress and appearance of Swimways' Infringing Line has

caused and/or will cause a likelihood of consumer confusion with Buzz Bee's

WATER WARRIORS Trade Dress for water squirting toys ..

135 . Upon information and belief, Swimways' Infringing Line is offered

through the same retail channels, to the same class of consumers, and at similar

price points, as Buzz Bee's WATER WARRIORS Line.

136. The trade dress and appearance of Swimways' Infringing Line is

confusingly similar to the trade dress of Buzz Bee's WATER WARRIORS Line.

137. Swimways' use of a colorable imitation of the Buzz Bee's WATER

WARRIORS Trade Dress in connection with Swimways' Infringing Line will

cause customers and potential customers to mistakenly attribute the properties and

reputation of Buzz Bee's WATER WARRIOR Line to Swimways' Infringing

Line.

138. Buzz Bee has no control over the quality of goods which are provided,

promoted, advertised or sold by Swimways, with the result that Buzz Bee's

2985505-2 29


valuable goodwill with respect to Buzz Bee's WATER WARRIORS Trade Dress

may be irreparably injured by the acts of Swimways complained of herein.

139. By the acts complained of herein, by offering Swimways Infringing

Line of water squirting toys that are a colorable imitation of Buzz Bee's WATER

WARRIORS Trade Dress and are confusingly similar to Buzz Bee's WATER

WARRIORS Trade Dress, Swimways has caused or is likely to cause confusion as

to the source of Swim ways Infringing Line.

140. Tbe use by Swimways of a colorable imitation of Buzz Bee's

WATER WARRIORS Trade Dress in connection with Swimways' Infringing

Line, and to advertise and promote Swim ways' Infringing Line, constitutes unfair

competition, a false description and representation and a false designation of the

origin of Swimways' goods and constitutes unfair competition, all in violation of

Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).

141. Upon information and belief, Swimways' acts complained of herein

are likely to cause and/or have caused confusion, subliminal confusion, post-sale

confusion, initial interest confusion, reverse confusion, mistake and/or deception

among consumers, potential consumers, the trade or the public.


constitute passing off and/or reverse passing off.

2985505·2 30


143. By means and as a resuh of said unfair competition and false

designation of origin, Buzz Bee has suffered and continues to suffer serious and

substantial injury, including irreparable injury for which Buzz Bee has no adequate

remedy at law.

COUNT II NEW JERSEY STATE STATUTORY

UNFAIR COMPETITION (Swim ways)



145. This cause of action arises under the laws of the State of New Jersey

statutes N.J.S.A. §§ 56:4-1 , et. seq ..

146. Swimways' aforementioned conduct in copymg the Buzz Bee's

WATER WARRIORS Trade Dress constitutes unfair competition and trade dress

infringement pursuant to the laws of the State ofNew Jersey and the common law.

147. Upon information and belief, by the acts complained of herein,

Swimways has appropriated for its own use Buzz Bee's WATER WARRIORS

Trade Dress, and the reputation or goodwill belonging to Buzz Bee.


are likely to cause and/or have caused confusion, subliminal confusion, post-sale



2985505-2 31


149. By means and as a result of said infringement, Buzz Bee has suffered

and continues to suffer serious and substantial injury, including irreparable injury

for which Buzz Bee has no adequate remedy at law.

COUNT III NEW JERSEY TRADEMARK COUNTERFEITING ACT

(Swimways)


by reference as though fully set fmth herein.

151. Tbis cause of action arises under the common law, and the law of the

State ofNew Jersey statutes N.J.S.A. § 56:3-13.16.

152. Swimways' aforementioned conduct m copymg the Buzz Bee's

WATER WARRIORS Trade Dress constitutes counterfeiting pursuant to the laws

of the State of New Jersey.


Swimways has used, without consent of Buzz Bee, a reproduction, counterfeit,

copy, and/or colorable imitation of Buzz Bee's WATER WARRIORS Trade Dress

in connection with the sale, distribution, offering for sale, or advertising in New

Jersey of Swimways' Infringing Line, which use is likely to cause confusion or

mistake or to deceive as to the source of origin of the parties' goods.


Swimways has engaged in the reproduction, counterfeiting, copying and/or

2985505-2 32


colorable imitation of, Buzz Bee's WATER WARRIORS Trade Dress and the

application of a reproduction, counterfeit, copy and/or colorable imitation of Buzz

Bee's WATER WARRIORS Trade Dress to packages intended to be used upon or

in connection with the sale or other distribution in New Jersey of Swimways'

Infringing Line.

155. By means and as a result of said counterfeiting, Buzz Bee has suffered



COUNT IV COMMON LAW UNFAIR COMPETITION

(Swim ways)



157. This cause of action arises under the common law.

158. Swimways' aforementioned conduct constitutes unfair competition.

159. Upon information and belief, Swimways' conduct complained of

herein was and in oppressive, fraudulent and malicious, entitling Buzz Bee to an

award of punitive damages.

160. By means and as a result of said unfair competition, Buzz Bee has

suffered and continues to suffer serious and substantial injury, including

irreparable injury for which Buzz Bee has no adequate remedy at law.

2985505-2 33


COUNTV UNJUST ENRICHMENT

(Swim ways)





Swimways has received a benefit from copying Buzz Bee's WATER WARRIORS

Trade Dress, and retention of that benefit without payment to Buzz Bee would be

unjust.


Swimways has been unjustly enriched.

165 . By means and as a result of said unjust enrichment, Buzz Bee has



COUNT VI TORTIOUS INTERFERENCE WITH

PROSPECTIVE ECONOMIC ADVANTAGE (Swimways)



167. Buzz Bee had a reasonable expectation of economic advantage by the

continued sales ofBuzz Bee's WATER WARRIORS Line in Target stores.

2985505-2 34


168. Buzz Bee had a reasonable expectation of economic advantage by

having Buzz Bee's WATER WARRIORS Trade Dress remain unique to Buzz Bee,

whereby if Target sought to offer water squirting toys with that trade dress or a

similar trade dress, it would have to be rightfully be acquired from Buzz Bee or at

Buzz Bee's direction or with Buzz Bee's permission or approval.

169. By the acts complained of herein, Swimways intentionally and

maliciously interfered with Buzz Bee's reasonable expectation of economic

advantage, by, inter alia, replacing Buzz Bee's goods on Target's shelves with

knock-offs.

170. By the acts complained of herein, Target was able to replace Buzz

Bee's Buzz Bee's WATER WARRIORS Line featuring Buzz Bee's WATER

WARRIORS Trade Dress, with direct knock-offs made by Swimways, replacing

and/or displacing Buzz Bee' s WATER WARRIORS Line, and trading upon the

established goodwill of Buzz Bee's, all to the detriment of Buzz Bee and without

compensation to Buzz Bee.

171. By the acts complained of herein, Target was able to cease buying the

Bee's Buzz Bee's WATER WARRIORS Line featuring Buzz Bee's WATER

WARRIORS Trade Dress, and obtain effectively the identical goods bearing a

confusingly similar trade dress from Swimways.

2985505-2 35


172. Upon infmmation and belief, the acts of Swimways complained of

herein were done with the intention of, and had the result of, replacing and/or

displacing Buzz Bee's WATER WARRIORS Line from Target shelves with direct

knock-offs offered by Swimways.

173. Upon infmmation and belief, the acts of Swimways complained of

herein were done intentionally and without justification or excuse.

174. Buzz Bee has suffered actual damages as a result of Swimways' acts

complained of herein, including, but not limited to, loss of sales of the Bee' s Buzz

Bee's WATER WARRIORS Line featuring Buzz Bee's WATER WARRIORS

Trade Dress to Target.

175. Buzz Bee has suffered damage to the goodwill established in Buzz

Bee's WATER WARRIORS Trade Dress, whereby a large retailer such as Target

is offering infringing goods that copy Buzz Bee's WATER WARRIORS Trade

Dress.

176. By means and as a result of said tortious interference, Buzz Bee has



2985505-2 36


COUNT VII TORTIOUS INTERFERENCE WITH

ECONOMIC ADVANTAGE (Swimways)


by reference as though fully set fmih herein.

178. Swimways' acts of tortuously interfering with Buzz Bee's economic

advantage were done with knowledge of Buzz Bee's reasonable expectation of

economic advantage, as Swimways copied Buzz Bee's goods and replaced and/or

displaced Buzz Bee's goods from the Target store shelves with knock-off goods.

179. By means and as a result of said tortious interference, Buzz Bee has



COUNT VIII FEDERAL UNFAIR COMPETITION

AND FALSE DESIGNATION OF ORIGIN (Target)



181. This cause of action arises under the trademark laws of the United

States, Lanham Act§ 43(a), 15 U.S.C. § 1125(a).

182. Target is selling, offering for sale, marketing, advertising and/or

promoting water squirting toys that are a colorable imitation of Buzz Bee's

2985505-2 37


WATER WARRIORS Trade Dress for goods which are identical to those offered

by Buzz Bee.

183. Upon information and belief, Target has aided, abetted, induced

and/or contributed to Swimways' creation, sale and/or distribution of colorable

imitations of Buzz Bee's WATER WARRIORS Trade Dress, in order to replace

Buzz Bee's WATER WARRIORS Line in Target stores with those of a direct

competitor.

184. By means and as a resuh of said unfair competition and false

designation of origin, Buzz Bee has suffered and continues to suffer serious and

substantial injllry, including irreparable injury for which Buzz Bee has no adequate

remedy at law.

COUNT IX NEW JERSEY STATE STATUTORY

UNFAIR COMPETITION (Target)



186. This cause of action arises under the laws of the State of New Jersey

statutes N.J.S.A. §§ 56:4-1 , et. seq ..

187. Target's aforementioned conduct constitutes unfair competition and

trade dress infringement pursuant to the laws of the State of New Jersey and the

common law.

2985505-2 38


188. Upon infmmation and belief, Target's acts complained of herein are

likely to cause and/or have caused confusion, subliminal confusion, post-sale



189. By means and as a result of said infringement, Buzz Bee has suffered



COUNT X NEW JERSEY TRADEMARK COUNTERFEITING ACT

(Target)



191. This cause of action arises under the common law, and the law of the

State ofNew Jersey statutes N.J.S.A. § 56:3-13.16.

192. Target's aforementioned conduct in aiding, abetting, inducing and/or

contributing to the copying of Buzz Bee's WATER WARRIORS Trade Dress, and

selling Swimways' Infringing Line, constitutes counterfeiting pursuant to the laws

of the State of New Jersey.

193. Upon information and belief, by the acts complained of herein, Target

has used, directly or indirectly, without consent of Buzz Bee, a reproduction,

counterfeit, copy, and/or colorable imitation of the Buzz Bee's WATER

2985505-2 39


WARRIORS Trade Dress in connection with the sale, distribution, offering for

sale, or advertising in New Jersey of Swimways' Infringing Line, which use is

likely to cause confusion or mistake or to deceive as to the source of origin of the

parties' goods.

194. Upon information and belief, by the acts complained ofherein, Target

has engaged, directly or indirectly, in the reproduction, counterfeiting, copying

and/or colorable imitation of, Buzz Bee's WATER WARRIORS Trade Dress and

the application of a reproduction, counterfeit, copy and/or colorable imitation of

Buzz Bee's WATER WARRIORS Trade Dress to packages intended to be used

upon or in connection with the sale or other distribution in New Jersey of the

Swimways' Infringing Line.

195. By means and as a result of said counterfeiting~ Buzz Bee has suffered



COUNT XI COMMON LAW UNFAIR COMPETITION

(Target)




198. Target' s aforementioned conduct constitutes unfair competition.

2985505-2 40


199. Upon infmmation and belief, Target's conduct complained of herein

was and in oppressive, fraudulent and malicious, entitling Buzz Bee to an award of

punitive damages.

200. By means and as a result of said unfair competition, Buzz Bee has



COUNT XII UNJUST ENRICHMENT

(Target)





has received a benefit from aiding, abetting, inducing and/or contributing to the

copying of Buzz Bee's WATER WARRIORS Trade Dress, and selling of

Swimways' Infringing Line, and retention of that benefit w ithout payment to Buzz

Bee would be unjust.


has been unjustly enriched.

2985505-2 41


PRAYERS FOR RELIEF

WHEREFORE, Buzz Bee respectfully requests the following relief:

1. That Defendants, jointly and severally, be found by this Cowt to

infringe Buzz Bee's WATER WARRIORS Trade Dress;

2. That Defendants, jointly and severally, be found by this Court to have

committed unfair competition;


engaged in counterfeiting;


been unjustly enriched;

5. That Swimways be found by this Comt to have engaged in tortious

interference with business advantage, and tortious interference with prospective

business advantage;

6. That Defendants, their agents, officers, sales representatives, servants,

employees, associates, attorneys, successors and assigns, and any and all persons

or entities acting by, through, under or in active concert or in participation with any

or all of them~ be preliminarily and pennanently enjoined by Order of this Court

from doing, abiding, causing, aiding or abetting any of the following:

(a) directly or indirectly infringing, or causing any third parties to

infringe, Buzz Bee's WATER WARRIORS Trade Dress;

2985505-2 42


(b) directly or indirectly engaging in, or causing a third party to engage

in, any acts or activities calculated to trade upon and/or tarnish and/or dilute the

Buzz Bee's WATER WARRIORS Trade Dress, and/or the reputation or goodwill

of Buzz Bee, or in any manner to compete unfairly with Buzz Bee;

(c) directly or indirectly injuring, or causing third parties to injure, the

distinctive quality of the Buzz Bee's WATER WARRIORS Trade Dress;

(d) further violating Buzz Bee's intellectual property rights and goodwill;

(e) from otherwise competing unfairly with Buzz Bee in any manner

whatsoever; and,

(f) otherwise infringing the rights of Buzz Bee;

7. That Defendants take all necessary and appropriate steps to stop any

promotion, advertising or sales of Swimways ' Infringing Line;

8. That the Court issue an Order directing Defendants to provide proof

that they have ceased infringing Buzz Bee's WATER WARRIORS Trade Dress

and have ceased all promotion, advertising or sales of Swimways' Infringing Line;

9. That Defendants tale all necessary and appropriate steps to recall for

destruction all copies of all products in Swimways' Infringing Line, as well as any

and all other materials incorporating any colorable imitation of Buzz Bee's

WATER WARRIORS Trade Dress;

2985505-2 43


10. That Defendants be required to send a written notice acceptable to

Buzz Bee and to the Court to each of the customers or potential customers from

whom Defendant has received an order for any product in Swimways' Infringing

Line, notifying each customer that the orders have been cancelled;

11. The Defendants' acts of infringement, unfair competition,

counterfeiting and unjust enrichment be found to be willful and intentional ;

12. That Buzz Bee be awarded its actual damages and/or a disgorgement

of Defendants' profits, direct and indirect, for Defendants ' infringements in an

amount to be determined at trial, to be increased to the maximum permitted by law,

for their acts of willful infringement;

13. That the Court award Buzz Bee its costs, including attorneys' fees,

and an assessment of interest;

14. That Defendants be directed to pay over to Buzz Bee all damages

suffered by Buzz Bee as a result of Defendants' acts herein complained of;

15. That Defendants be directed to pay over to Buzz Bee their profits

from Defendants' acts herein complained of;

16. That the Court award Buzz Bee's damages on the common law causes

of action;

2985505-2 44


17. That the award of Buzz Bee's damages and Defendants' profits be

trebled as a result of Defendants' willful and deliberate infringement of Plaintiffs '

rights;

18. That the Court finds this case to be exceptional;

19. That Buzz Bee be awarded punitive damages for Defendants' willful

and deliberate, unlawful injw·ious acts complained of herein; and,

20. That the Court grant such other and further relief as it deems just and

proper.

JURY DEMAND

Plaintiff hereby demands a trial by jury on all issues so triable.

CERTIFICATION PURSUANT TO LOCAL CIVIL RULE 11.2

The undersigned hereby certifies, pursuant to Local Civil Rule 11.2, that

with respect to the matter in controversy herein, neither Plaintiff nor Plaintiffs

attorneys are aware of any other action pending in any court, or of any pending

arbitration or administrative proceeding, to which this matter is subject.

2985505-2 45


Date: April lO, 2014

2985505-2

Respectfully submitted,

By s/Michael F. Snyder Michael F. Snyder, Esquire John P. Sullivan, Esquire VOLPE AND KOENIG, P.C. United Plaza 30 S. 1 ih Street Philadelphia, P A 19103 Telephone: (215) 568-6400 Facsimile: (215) 568-6499

Attorneys for Plaintiff, Buzz Bee Toys, Inc.

46


VERIFICATION

I, Jeffrey Zimmerman, declare as follows:

I am President for Buzz Bee Toys, Inc. ("Buzz Bee"), Plaintiff herein. I

have read Buzz Bee's Amended Verified Complaint against Defendants,

Swimways Corporation and Target Corporation, filed concurrently with this

Verification, and know the contents thereof to be true based on my own personal

knowledge, except as to such matters therein based on my information and belief,

·and as to these matters, I believe them to be true.

Pursuant to the provisions of28 U.S. C. § 1746, I declare under penalty of

perjury that the foregoing is true and correct.

Executed on this lOth day of April, 2014.

47 2985505·2


EXHIBIT A

Case 1:14-cv-01948-JBS-KMW Document 7-1 Filed 04/10/14 Page 1 of 3 PageID: 210

2963573-1


EXHIBIT B


2961674-1

A B E

D

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G H H I J

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EXHIBIT C


2963587-1


EXHIBIT D


2963595-1

A

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D

E

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EXHIBIT E


EXHIBIT F


2986581-1

A

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F G H

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N

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EXHIBIT G


2986648-1


EXHIBIT H


2986653-1

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EXHIBIT L


2963818-1


EXHIBIT M


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EXHIBIT N


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EXHIBIT O


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EXHIBIT P


2986737-1


buzz bee toys - amended complaint

Documents