comfort research v. ace bayou - complaint

8/10/2019 Comfort Research v. Ace Bayou - Complaint

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

COMFORT RESEARCH, LLC,

Plaintiff,

v.

ACE BAYOU CORPORATION,

Defendant.

Case No:

Judge:

COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff, COMFORT RESEARCH, LLC ("PLAINTIFF" or "COMFORT

RESEARCH"), by and through its undersigned counsel, for its Complaint against

Defendant, ACE BAYOU CORPORATION ("DEFENDANT" or "ACE") states the

following. Allegations made on information and belief are premised on the belief that the

same are likely to have evidentiary support after a reasonable opportunity for further

investigation and discovery.

NATURE OF THE CASE

1. This is an action for patent infringement under the Patent Laws of the

United States, 35 U.S.C. 1, et seq. ("Federal Patent Act").

2. This is also an action for copyright infringement under the Federal

Copyright Act of 1976, as amended, 17 U.S.C. 101, et seq. ("Federal Copyright Act").

Case 1:14-cv-01264 Doc #1 Filed 12/09/14 Page 1 of 9 Page ID#1


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3. ACE, manufactures, offers to sell, and sells, without authorization, either

express or implied, from COMFORT RESEARCH, a frameless chair in direct violation

of The Federal Patent Act and The Federal Copyright Act among others.

4. COMFORT RESEARCH seeks injunctive and monetary relief to the

fullest extent possible under The Federal Patent Act, The Federal Copyright Act, as well

as any such other relief as the equities of the case may require and as this Court may

deem just and proper.

PARTIES

5. COMFORT RESEARCH, LLC is a Michigan limited liability company

having a principal place of business at 1719 Elizabeth Avenue NW, Grand Rapids,

Michigan 49504.

6. Upon information and belief ACE BAYOU CORPORATION is a

corporation organized under the laws of Louisiana, having a principal place of business at

3700 Desire Parkway, New Orleans, Louisiana 70126.

JURISDICTION AND VENUE

7. This Court has original jurisdiction over the subject matter by virtue of at

least one of 28 U.S.C. 1331, 1338(a), and 1338(b).

8. This Court has personal jurisdiction over ACE, and venue is proper in this

judicial district pursuant to at least one of 28 U.S.C. 1391(b)(2), 1391(c), 1400(a), and

1400(b). Upon information and belief ACE is actively doing business in this judicial

district, and/or has committed certain acts of patent infringement and copyright

infringement in this judicial district. ACE makes, distributes, offers for sale, and/or sells

frameless chairs in the State of Michigan. ACE is subject to the personal jurisdiction of



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this Court and is amenable to service of process pursuant to the Michigan long-arm

statute, MI ST 600.705 (2003), and Fed. R. Civ. P. 4(e). Requiring ACE to respond to

this action will not violate due process.

BACKGROUND

9. COMFORT RESEARCH is, among other things, a world leader in the

innovation, design, and manufacture of frameless furniture. COMFORT RESEARCH

manufactures, distributes, and sells its frameless beanbag chairs, loungers, loveseats, and

pet beds to companies and end users around the world.

10. COMFORT RESEARCH is actively philanthropic both locally and

nationally donating thousands of chairs, as well as proceeds from the sales of chairs, to

organizations such as Grand Rapids Urban Oasis, The Wounded Warrior Project,

Sunshine on a Ranney Day, the Children's Hospital of Los Angeles, and East Jefferson

YMCA of New Orleans just to name a few.

11. Prior to May 8, 2014, Daniel C. George II and Matthew Jung conceived of

a new frameless chair that is now known as the Milano Chair.

12. On October 28, 2014, the United States Patent and Trademark Office duly

and legally issued U.S. Design Patent No. D716,064 S ("the '064 patent"), entitled

"Milano Chair" to Daniel C. George II and Matthew Jung. (See Exhibit A.)

13. All rights in the '064 patent have been assigned to Comfort Research,

LLC.

14. Comfort Research, LLC is the sole owner of the '064 patent and has the

right to enforce and recover damages for infringement of the '064 patent.



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15. The United States Copyright Office also duly and legally issued U.S.

Registration No. VA 1-933-980 ("the '980 registration"), entitled "Big Joe Milano" to

Comfort Research, LLC.

16. In an improper attempt to unlawfully profit from the goodwill and

charitable missions of COMFORT RESEARCH, ACE has begun selling a frameless

chair that infringes COMFORT RESEARCH's intellectual property associated with its

now famous Big Joe Milano Chair in direct violation of The Federal Patent Act, and The

Federal Copyright Act among others.

COUNT I PATENT INFRINGEMENT OF

U.S. DESIGN PATENT NO. D716,064 BY ACE

17. Plaintiff restates and incorporates by reference herein paragraphs 1-16.

18. ACE makes or has made, uses, offers to sell and/or sells one or more

frameless chairs (e.g., the chairs sold at Walmart Stores, Inc. having the UPC code

094338979725 from lot number 20140625C) which infringe upon one or more claims of

the '064 patent in this judicial district and elsewhere in the United States in violation of

35 U.S.C. 271.

19. Infringement of the '064 patent by ACE has caused, and will continue to

cause, COMFORT RESEARCH to suffer damages, including, but not limited to, lost

sales, lost profits, lost royalties and/or price erosion in an amount to be determined by the

trier of fact.

20. Furthermore, the recent recall of nearly 2.2 million of ACE's chairs due

the death of two children from the lack of a permanent zipper closure, causes further

harm to COMFORT RESEARCH as there have been multiple occasions where confused



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consumers contact COMFORT RESEARCH asking about the recall because of the

confusingly similar frameless chairs sold by ACE.

21. Unless restrained and enjoined by this Court, ACE will continue to

infringe the '064 patent, resulting in substantial, continuing and irreparable damages to

COMFORT RESEARCH.

22. The actions of ACE are "exceptional" within the meaning of 35 U.S.C.

285.

COUNT II COPYRIGHT INFRINGEMENT OF

U.S. REGISTRATION NO. VA 1-933-980 BY ACE

23. Plaintiff restates and incorporates by reference herein paragraphs 1-22.

24. COMFORT RESEARCH is a business which, among other things, designs

and manufactures innovative and distinct frameless chairs.

25. Each new line of COMFORT RESEARCH's chairs and its associated

photographs are original works subject to copyright protection under United States Law.

26. At least as early as May 8, 2014, COMFORT RESEARCH designed,

photographed, and implemented the Big Joe Milano chair.

27. COMFORT RESEARCH is the owner of all right, title, and interest in and

copyrights to U.S. Registration No. VA 1-933-980 (Big Joe Milano).

28. Big Joe Milano comprises an original work of authorship fixed in a

tangible medium of expression within the meaning of the Copyright Act of 1976 17

U.S.C. 101 et seq., as amended. Therefore, it constitutes copyrightable subject matter

under the laws of the United States.



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29. COMFORT RESEARCH believes, and therefore alleges, that ACE has

knowingly and willfully copied and continues to copy the Big Joe Milano.

30. COMFORT RESEARCH believes, and therefore alleges, that ACE has

sold and continues to sell substantial quantities of chairs continuing to copy from

COMFORT RESEARCH.

31. As a direct and proximate result of the ACE's acts of infringement,

COMFORT RESEARCH has suffered and will continue to suffer, irreparable injury.

32. The DEFENDANT's conduct is causing and, unless enjoined and

permanently restrained by this Court, will continue to cause COMFORT RESEARCH

great and irreparable injury that cannot be fully compensated or measured in money.

COMFORT RESEARCH has no adequate remedy at law.

33. COMFORT RESEARCH is entitled to recover all damages suffered as a

result of the ACE's wrongful acts, including but not limited to profits obtained by the

DEFENDANT as a result of their wrongful acts and the loss of profits sustained by

COMFORT RESEARCH. In the alternative, COMFORT RESEARCH is entitled to

recover statutory damages in an amount to be determined by the Court. COMFORT

RESEARCH is also entitled to recover all reasonable attorney's fees, court costs and

interest on said damages from the date of DEFENDANT's infringement.



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PRAYER FOR RELIEF

WHEREFORE COMFORT RESEARCH respectfully demands judgment against

ACE as follows:

A. Declaring that ACE has infringed the '064 patent;

B. Pursuant to 35 U.S.C. 283, permanently enjoining and restraining ACE

and its officers, agents, servants, employees, attorneys, and those persons in active

concert or participation with them, from further acts of infringement of the '064 patent;

C. Pursuant to 35 U.S.C. 284, awarding to COMFORT RESEARCH

damages, including lost profits, together with prejudgment interest, post judgment

interest, and costs, adequate to compensate COMFORT RESEARCH for ACE's acts of

infringement of the '064 patent;

D. Declaring that ACE's infringement has been willful and this is an

exceptional case pursuant to 35 U.S.C. 285 and awarding COMFORT RESEARCH

treble damages and reasonable attorneys' fees against ACE for infringement of the '064

patent;

E. Declaring that ACE has infringed one or more copyrights of COMFORT

RESEARCH;

F. Preliminarily and permanently restrain and enjoin ACE from further

infringement of COMFORT RESEARCH's copyright;

G. Order the impoundment and destruction of all infringing works;

H. Order ACE to pay damages adequate to compensate COMFORT

RESEARCH for the acts of copyright infringement by ACE and ACE's profits from its

sales of goods in violation of the law as described in this Complaint;



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I. Order ACE to pay statutory damages, pursuant to 17 U.S.C. 504 for

willful infringement;

J. Order ACE to pay COMFORT RESEARCH's expenses, interest, and costs

including reasonable attorney's fees, pursuant 17 U.S.C. 505;

K. Declaring that ACE has infringed at least one of the patent, and copyright

of COMFORT RESEARCH;

L. Preliminarily and permanently restrain and enjoin ACE from further

infringement of COMFORT RESEARCH's patent and copyright;

M. Order ACE to pay damages adequate to compensate COMFORT

RESEARCH for the acts of patent and/or copyright infringement by ACE and ACE's

profits from its sales of goods in violation of the law as described in this Complaint;

N. Order ACE to pay all applicable statutory damages including exceptional

and/or treble damages;

O. Order ACE to pay COMFORT RESEARCH's expenses, interest, and costs

including reasonable attorney's fees;

P. Order ACE to pay COMFORT RESEARCH for rehabilitative advertising

and price point restoration; and

Q. Awarding COMFORT RESEARCH such other and further relief as the

Court deems just and proper.



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JURY TRIAL DEMAND

COMFORT RESEARCH, LLC respectfully demands a trial by jury on all issues

so triable.

Respectfully submitted,

COMFORT RESEARCH, LLC

Dated: December 9, 2014 /William L. King III/

By: One of the Attorneys for Plaintiff

William L. King IIIKING & PARTNERS, PLC

170 College Avenue, Suite 230Holland, Michigan 49423

T: 616.355.0400F: 616.355.9862



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Exhibit A

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S 44 (Rev. 12/12) CIVIL COVER SHEETThe 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

rovided 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 theurpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First Listed Plaintiff 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 OFTHE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

I. BASIS OF JURISDICTION(Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an X in One Box for(For Diversity Cases Only) and One Box for Defendant

1 U.S. Government 3 Federal Question PTF DEF PTF D

Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated orPrincipal Place 4

of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated andPrincipal Place 5

Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a 3 3 Foreign Nation 6

Foreign Country

V. NATURE OF SUIT(Place an X in One Box Only)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 400 State Reapportionm

130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 410 Antitrust

140 Negotiable Instrument Liability 367 Health Care/ 430 Banks and Banking

150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 450 Commerce& Enforcement of Judgment Slander Personal Injury 820 Copyrights 460 Deportation

151 Medicare Act 330 Federal Employers Product Liabi lity 830 Patent 470 Racketeer Influence

152 Recovery of Defaulted Liability 368 Asbestos Personal 840 Trademark Corrupt Organizatio

Student Loans 340 Marine Injury Product 480 Consumer Credit

(Excludes Veterans) 345 Marine Product Liability LABOR SOCIAL SECURITY 490 Cable/Sat TV 153 Recovery of Overpayment Liability PERSONAL PROPERTY 710 Fair Labor Standards 861 HIA (1395ff) 850 Securities/Commod

of Veterans Benefits 350 Motor Vehicle 370 Other Fraud Act 862 Black Lung (923) Exchange

160 Stockholders Suits 355 Motor Vehicle 371 Truth in Lending 720 Labor/Management 863 DIWC/DIWW (405(g)) 890 Other Statutory Acti

190 Other Contract Product Liability 380 Other Personal Relations 864 SSID Title XVI 891 Agricultural Acts

195 Contract Product Liability 360 Other Personal Property Damage 740 Railway Labor Act 865 RSI (405(g)) 893 Environmental Matt

196 Franchise Injury 385 Property Damage 751 Family and Medical 895 Freedom of Informa

362 Personal Injury - Product Liability Leave Act ActMedical Malpractice 790 Other Labor Litigation 896 Arbitration

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 791 Employee Retirement FEDERAL TAX SUITS 899 Administrative Proc

210 Land Condemnation 440 Other Civil Rights Habeas Corpus: Income Security Act 870 Taxes (U.S. Plaintiff Act/Review or Appe

220 Foreclosure 441 Voting 463 Alien Detainee or Defendant) Agency Decision

230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 871 IRSThird Party 950 Constitutionality of

240 Torts to Land 443 Housing/ Sentence 26 USC 7609 State Statutes

245 Tort Product Liability Accommodations 530 General

290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION

Employment Other: 462 Naturalization Application 446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration

Other 550 Civil Rights Actions

448 Education 555 Prison Condition

560 Civil Detainee -

Conditions of

Confinement

V. ORIGIN(Place an X in One Box Only)

1 OriginalProceeding

2 Removed fromState Court

3 Remanded fromAppellate Court

4 Reinstated orReopened

5 Transferred fromAnother District(specify)

6 MultidistrictLitigation

VI. CAUSE OF ACTION

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

Brief description of cause:

VII. REQUESTED INCOMPLAINT:

CHECK IF THIS IS A CLASS ACTIONUNDER RULE 23, F.R.Cv.P.

DEMAND $ CHECK YES only if demanded in complaint

JURY DEMAND: Yes No

VIII. RELATED CASE(S)IF ANY

(See instructions):JUDGE DOCKET NUMBER

DATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE


COMFORT RESEARCH, LLC

Kent

King & Partners, PLC70 College Avenue, Suite 230

Holland, Michigan 49423

ACE BAYOU CORPORATION

35 USC 1 et seq.

patent infringement, copyright infringement

2/09/2014 /William L. King III/ (P59098)

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JS 44 Reverse (Rev. 12/12)

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 o

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, us

only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency andthen 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 attime 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 lan

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, noin 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 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 amendm

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 tak

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 diversitycases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Marksection for each principal party.

IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI belowsufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more th

one nature of suit, select the most definitive.

V. Origin. Place an "X" in one of the six 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.

When the petition for removal is granted, check this box.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 fili

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 o

multidistrict litigation transfers.

Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 140

When this box is checked, do not check (5) above.

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 jurisdictionstatutes 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 docketnumbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.


comfort research v. ace bayou - complaint

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