glud & marstrand a/s v. viva magnetics ltd hong kong et. al
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UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTON
GLUD & MARSTRAND A/S,
Plaintiff,
v.
VIVA MAGNETICS LTD. (HONGKONG), VIVA USA, INC. and VIVAMAGNETICS (CANADA) LTD.,
Defendants.
No.COMPLAINT FOR PATENTINFRINGEMENT AND BREACH OFCONTRACT
JURY DEMAND
Plaintiff Glud & Marstrand A/S (G&M), by and through its attorneys, alleges for
its Complaint against Viva Magnetics Ltd. (Hong Kong), Viva USA, Inc. and Viva
Magnetics (Canada) Ltd. (collectively, Viva) as follows:
NATURE OF THE ACTION
1. G&M brings this action to recover damages and obtain injunctive and other
relief arising from Vivas infringement of G&Ms patents and breach of a settlement
agreement between G&M and Viva reached in a previous action before this Court (theJanuary 2007 Settlement Agreement). G&M is the owner and developer of patented
technology relating to metal storage containers for storage media such as Digital Video
Discs (DVDs), Blu-ray Discs and Compact Discs (CDs). G&Ms claims arise out of
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COMPLAINT FOR PATENT INFRINGEMENT ANDBREACH OF CONTRACT Page 1
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Vivas breach of its agreement not to manufacture, cause to be manufactured, market or sell
a metal storage container that infringes the claims of U.S. Patent No. 7,051,872 (the 872
Patent) or the claim of U.S. Design Patent No. D562,049 (the D049 Patent), and Vivas
corresponding infringement of the 872 Patent and the D049 Patent.
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PARTIES
2. Plaintiff G&M is a limited liability entity organized and existing under the
laws of Denmark, with a principal place of business in Lsning, Denmark.7
3. Upon information and belief, Defendant Viva Magnetics Ltd. (Hong Kong)
is a limited liability company organized and existing under the laws of Hong Kong, China,
with a principal place of business in Hong Kong, China.
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4. Upon information and belief, Defendant Viva USA, Inc. is a corporation
organized and existing under the laws of the State of California, with a principal place of
business in Los Angeles, California.
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5. Upon information and belief, Defendant Viva Magnetics (Canada), Ltd. is a
limited liability company organized and existing under the laws of Canada, with a principal
place of business in Scarborough, Ontario, Canada.
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JURISDICTION AND VENUE
6. This Court has jurisdiction over G&Ms claims for infringement of the 872
Patent and the D049 Patent and for breach of the January 2007 Settlement Agreement by
stipulation of the parties and order of the Court, dated April 17, 2007, in Glud & Marstrand
A/S v. Microsoft Corp. and Viva Group Ltd. , Civil Action No. 05-1563 (RSM) (the
Stipulation and Order). As set forth in the Stipulation and Order: The Court shall retain
jurisdiction over this matter for the purposes of enforcing the January 2007 SettlementAgreement, including, but not limited to, any relief sought for a breach or default under the
January 2007 Agreement. A copy of the Stipulation and Order is attached as Exhibit 1.
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COMPLAINT FOR PATENT INFRINGEMENT ANDBREACH OF CONTRACT Page 2
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7. This Court also has jurisdiction over G&Ms claims for infringement of the
872 Patent and the D049 Patent arising under the patent laws of the United States, 35
U.S.C. 1 et seq. , pursuant to 28 U.S.C. 1331 and 1338(a).
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8. This Court also has supplemental jurisdiction over G&Ms claim for breachof the January 2007 Settlement Agreement pursuant to 28 U.S.C. 1367(a), because that
claim is so related to G&Ms claims for infringement of the 872 Patent and the D049
Patent that it forms part of the same case or controversy and derives from a common
nucleus of operative facts.
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9. This Court has personal jurisdiction over Viva by agreement between the
parties. Viva consented to the jurisdiction of the Court pursuant to the Stipulation and
Order and the January 2007 Settlement Agreement.
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10. This Court also has personal jurisdiction over Viva because, on information
and belief, Viva has sufficient contacts with this judicial district and Viva regularly
conducts business within this judicial district. Upon information and belief, Viva directly
or through its agents distributes, offers for sale or license, sells or licenses, and advertises
its products and services within the State of Washington and this judicial district, has
purposefully availed itself of the privileges and benefits of the laws of the State of
Washington, and committed acts of patent infringement during the course of its business in
this judicial district.
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11. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(b), (c)
and (d) and 1400(b). Venue is also proper in this judicial district because Viva consented to
venue in this judicial district pursuant to the Stipulation and Order and the January 2007
Settlement Agreement.
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COMPLAINT FOR PATENT INFRINGEMENT ANDBREACH OF CONTRACT Page 3
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G&MS CLAIMS OF INFRINGEMENT AND BREACH1
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The 872 Patent
12. Founded over 125 years ago, G&M is Scandinavias largest supplier of
metal packaging. G&M develops and manufactures metal packaging for various food andconsumer products and decorative tins for a wide variety of other products.
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13. Several years ago, G&M originated the idea of a metal case for storage
media, such as CDs and DVDs, that could be filled with conventional loading equipment
and, using proprietary technology, applying colored lacquering, embossing and hologram
printing directly into the metal surface of the case. G&M believed that such packaging
would be aesthetically pleasing, giving the packaged product a look of enhanced value, and
also serve as a deterrent to counterfeiters, who would be unable to duplicate such packaging
without considerable expense.
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14. The innovative work of G&Ms engineers and developers has been rewarded
with several United States Patents, including the 872 Patent.14
15. Each of the inventors of the 872 Patent has assigned the 872 Patent to
G&M, so that G&M is the sole owner of all right and title to the 872 Patent, including the
right to recover damages for infringement.
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The D049 Patent
16. Several years ago, a G&M engineer also invented a unique ornamental
design for a hard box for storage media disks. He was awarded the D049 Patent for his
invention.
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17. The inventor of the D049 Patent has assigned the D049 Patent to G&M, so
that G&M is the sole owner of all right and title to the D049 Patent, including the right to
recover damages for infringement.2324
COMPLAINT FOR PATENT INFRINGEMENT ANDBREACH OF CONTRACT Page 4
818 STEWART STREET, SUITE 1400SEATTLE WASHINGTON 98101
T 206.516.3800 F 206.516.3888
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Vivas Infringement1
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23. Upon information and belief, Viva did cease manufacturing the products at
issue in the Prior Litigation. But notwithstanding its agreement not to manufacture any
storage metal box that infringes any claim of either the 872 Patent or the D049 Patent,following the January 2007 Settlement Agreement, Viva has resumed manufacturing
storage metal boxes that infringe claims of both the 872 Patent and theD049 Patent.
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24. Upon information and belief, Viva is currently manufacturing and selling at
least the following infringing products under its Metal Box for Blu-ray and DVD product
line: Metal Blu-ray Box 12.5mm, Metal Blu-ray Box 15mm, and Metal DVD Box.
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25. Upon information and belief, Vivas Metal Box for Blu-ray and DVD
product line is being used and offered for sale in the United States and/or imported into the
United States in connection with at least the following Blu-ray and/or DVD movie titles:
The Lion King; Bambi: Diamond Edition; The Incredibles; and Pirates of the
Caribbean: On Stranger Tides.
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26. Upon information and belief, Viva intends to use and offer for sale in the
United States and/or import into the United States its Metal Box for Blu-ray and DVD
product line in connection with additional Blu-ray and/or DVD movie titles in the near
future.
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27. G&M gave notice to Viva that its Metal Box for Blu-ray and DVD products
infringe claims of the 872 Patent on or about February 23, 2011 and again on or about
April 28, 2011.
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28. G&M gave notice to Viva that its Metal Box for Blu-ray and DVD products
infringe the claim of the D049 Patent on or about April 28, 2011. 23
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FIRST CAUSE OF ACTION1
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Patent Infringement
29. G&M hereby realleges and incorporates by reference each and every
allegation set forth in paragraphs 1 through 28 above. 430. On May 30, 2006, the 872 Patent entitled Metal Packaging was duly and
legally issued to G&M by the United States Patent and Trademark Office. G&M is the
owner, by valid assignment, of all right, title and interest in and to the 872 Patent. A true
and correct copy of the 872 Patent is attached as Exhibit 2.
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31. G&M has not licensed or otherwise authorized Viva to make, use, offer for
sale, sell or import into the United States any products that embody the inventions of the
872 Patent.
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32. On information and belief, Viva has directly infringed and continues to
directly infringe claims of the 872 Patent by making, using, offering for sale and/or selling
in the United States and/or importing into the United States one or more products including,
but not limited to, Metal Blu-ray Box 12.5mm, Metal Blu-ray Box 15mm, and Metal DVD
Box.
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33. Viva has had actual knowledge of the 872 Patent since at least September
26, 2006.18
34. On information and belief, Viva has indirectly infringed and continues to
indirectly infringe claims of the 872 Patent by inducing end-users to infringe claims of the
872 Patent by using in the United States one or more products including, but not limited to,
Metal Blu-ray Box 12.5mm, Metal Blu-ray Box 15mm, and Metal DVD Box. Viva
intentionally took action that induced end-users to infringe claims of the 872 Patent by
marketing, selling, and supporting the infringing products. Viva has awareness of the 872
Patent and knew or was willfully blind to the fact that its actions would cause direct
infringement by end-users.
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35. Upon information and belief, Vivas infringement of claims of G&Ms 872
Patent has been and will continue to be willful, wanton and deliberate.
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36. G&M is damaged and irreparably injured by Vivas infringing activities and
will continue to be so damaged and irreparably injured unless and until Vivas infringingactivities are enjoined by this Court.
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SECOND CAUSE OF ACTION
Patent Infringement
37. G&M hereby realleges and incorporates by reference each and every
allegation set forth in paragraphs 1 through 36 above. 9
38. On February 19, 2008, the D049 Patent entitled Hard Box for Media Disk
was duly and legally issued to G&M by the United States Patent and Trademark Office.
G&M is the owner, by valid assignment, of all right, title and interest in and to the D049
Patent. A true and correct copy of the D049 Patent is attached as Exhibit 3.
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39. G&M has not licensed or otherwise authorized Viva to make, use, offer for
sale, sell or import into the United States any products that embody the invention of the
D049 Patent.
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40. On information and belief, Viva has directly infringed and continues to
directly infringe the claim of the D049 Patent by making, using, offering for sale and/or
selling in the United States and/or importing into the United States one or more products
including, but not limited to, Metal Blu-ray Box 12.5mm, Metal Blu-ray Box 15mm, and
Metal DVD Box.
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41. Viva has had actual knowledge of the application for the D049 Patent since
at least January 19, 2007. Viva has had constructive notice of the D049 Patent since itissued, and actual notice of the D049 Patent since on or about April 28, 2011.
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42. On information and belief, Viva has indirectly infringed and continues to
indirectly infringe the claim of the D049 Patent by inducing end-users to infringe the claim26
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of the D049 Patent by using in the United States one or more products including, but not
limited to, Metal Blu-ray Box 12.5mm, Metal Blu-ray Box 15mm, and Metal DVD Box.
Viva intentionally took action that induced end-users to infringe the claim of the D049
Patent by marketing, selling, and supporting the infringing products. Viva has awareness of the D049 Patent and knew or was willfully blind to the fact that its actions would cause
direct infringement by end-users.
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43. Upon information and belief, Vivas infringement of the claim of G&Ms
D049 Patent has been and will continue to be willful, wanton and deliberate.
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44. G&M is damaged and irreparably injured by Vivas infringing activities and
will continue to be so damaged and irreparably injured unless and until Vivas infringing
activities are enjoined by this Court.
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THIRD CAUSE OF ACTION
Breach of Contract
45. G&M hereby realleges and incorporates by reference each and every
allegation set forth in paragraphs 1 through 44 above. 15
46. G&M and Viva entered into a written contract referred to as the January
2007 Settlement Agreement that, inter alia , resulted in the dismissal of the Prior Litigation.17
47. The January 2007 Settlement Agreement is a valid and enforceable contract.
48. G&M has performed its obligations under the January 2007 Settlement
Agreement.20
49. As set forth above, by its actions infringing claims of the 872 Patent and the
D049 Patent, Viva has breached its obligations under the January 2007 Settlement
Agreement.
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2350. As a direct result of Vivas breaches of the January 2007 Settlement
Agreement, G&M has suffered damages and other harm.25
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51. G&M has suffered, and will continue to suffer, substantial and irreparable
damage to its position in the market, business reputation and goodwill for which G&M has
no adequate remedy at law, as well as losses in an amount to be determined.
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52. G&M is also entitled to recover its attorneys fees and costs pursuant to theterms of the January 2007 Settlement Agreement.5
PRAYER FOR RELIEF
WHEREFORE, G&M prays for judgment as follows:
A. An entry of judgment that the 872 Patent and the D049 Patent are each
valid and enforceable;9
B. An entry of judgment holding Viva liable for infringement of one or more
claims of each of the 872 Patent and the D049 Patent and for breach of the January 2007
Settlement Agreement;
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C. An order permanently enjoining Viva, its officers, agents, representatives,
employees, attorneys and affiliated companies, their assigns and successors in interest, and
those persons in active concert or participation with them, from continued acts of
infringement of the 872 Patent and the D049 Patent;
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D. An order awarding G&M all damages adequate to compensate for Vivas
infringement of the 872 Patent and the D049 Patent, and in no event less than a reasonable
royalty for Vivas acts of infringement, and for breach of the January 2007 Settlement
Agreement, together with prejudgment and post-judgment interest;
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E. Trebling of damages under 35 U.S.C. 284 in view of the willful and
deliberate nature of Vivas infringement of the 872 Patent and the D049 Patent, together
with prejudgment and post-judgment interest;
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together with prejudgment and post-judgment interest;25
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COMPLAINT FOR PATENT INFRINGEMENT ANDBREACH OF CONTRACT Page 11
G. Actual damages suffered by G&M as a result of Vivas unlawful conduct, in
an amount to be proven at trial, together with prejudgment and post-judgment interest;
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H. An order awarding G&M its costs and attorneys fees pursuant to the
January 2007 Settlement Agreement and/or 35 U.S.C. 285; and4I. Any and all other legal and equitable relief as may be available under the
law and which the Court may deem proper.6
DEMAND FOR A JURY TRIAL
G&M hereby demands a jury trial on all issues so triable under the law as provided
by Rule 38(b) of the Federal Rules of Civil Procedure.
Dated: March 16, 2012 YARMUTH WILSDON CALFO PLLC
By: /s/ Jeremy Roller Angelo J. Calfo, WSBA No. 27079Jeremy E. Roller, WSBA No. 32021818 Stewart Street, Suite 1400Seattle, WA 98101Telephone: (206) 516-3800Facsimile: (206) [email protected]
Patricia A. Martone( pro hac vice application to be filed)Craig B. Whitney( pro hac vice application to be filed)MORRISON & FOERSTER LLP1290 Avenue of the AmericasNew York, NY 10104Telephone: (212) 468-8000Facsimile: (212) [email protected]@mofo.com
Attorneys for Plaintiff GLUD & MARSTRAND A/S
818 STEWART STREET, SUITE 1400SEATTLE WASHINGTON 98101
T 206.516.3800 F 206.516.3888
691.01 mc163501 3/16/12
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Hon. Ricardo S. Martinez
STIPULATION AND [PROPOSED] ORDER OFDISMISSAL WITH PREJUDICE - 1Civil Action No. 05-1563 (RSM)
GLUD-6-1001P39.doc
UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTON
GLUD & MARSTRAND A/S,
Plaintiff,
vs.
MICROSOFT CORP. and VIVA GROUPLTD.,
Defendants.
CIVIL ACTION NO. 05-1563 (RSM)
STIPULATION AND ORDEROF DISMISSAL WITH PREJUDICE
Note On Motion Calendar: April 11, 2007
The matter in difference between Plaintiff Glud & Marstrand A/S and Defendants Viva
Magnetics Ltd. Hong Kong, and Viva Magnetics (Canada) Ltd. having been settled pursuant to
an agreement entered into among those parties in January 2007 (hereinafter, the January 2007
Settlement Agreement);
IT IS HEREBY STIPULATED that:
1. The claims asserted by Plaintiff Glud & Marstrand A/S against Defendants Viva
Group, Viva Magnetics Ltd. Hong Kong, Viva Magnetics (Europe) N.V., Viva Magnetics
(Canada) Ltd., Viva USA, Inc. and Encore Holdings, Ltd. are hereby dismissed with prejudice
and with each party bearing its own attorneys fees and costs.
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STIPULATION AND ORDER OF DISMISSALWITH PREJUDICE - 2Civil Action No. 05-1563 (RSM)
GLUD-6-1001P39.doc
2. The claims asserted by Defendants Viva Magnetics Ltd. Hong Kong and Viva
Magnetics (Canada) Ltd. against Plaintiff Glud & Marstrand A/S are hereby dismissed with
prejudice and with each party bearing its own attorneys fees and costs.
3. The Court shall retain jurisdiction over this matter for the purposes of enforcing
the January 2007 Settlement Agreement, including, but not limited to, any relief sought for a
breach or default under the January 2007 Agreement.
We concur to the form of and entry of this Order.
For Plaintiff Glud & Marstrand A/S:
Gerald LevyRichard H. BrownPITNEY HARDIN LLP 7 Times Square, 20 th FloorNew York, NY 10036P: 212.297.5854
Lawrence D. Graham, WSBA No. 25,402Douglas A. Grady, WSBA No. 36,100BLACK LOWE & GRAHAM PLLC 701 Fifth Avenue, Suite 4800Seattle, WA 98104P: 206.381.3300
By: s/ Richard H. BrownDate: April 11, 2007
For Defendants Viva Magnetics Ltd. HongKong and Viva Magnetics (Canada) Ltd.
Robert C. FaberLawrence A. HoffmanDouglas Q. HahnOSTERLENK , FABER , GERB & SOFFEN LLP 1180 Avenue of the AmericasNew York, NY 10036P: 212.382.0700
Paul T. Meiklejohn, WSBA No. 17,477Alexander A. Baehr, WSBA No. 25,320DORSEY & WHITNEY LLP U.S. Bank Centre1420 Fifth Avenue, Suite 3400Seattle, WA 98101P: 206.903.8800
By: s/ Paul T. MeiklejohnDate: April 11, 2007
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STIPULATION AND ORDER OF DISMISSALWITH PREJUDICE - 3Civil Action No. 05-1563 (RSM)
GLUD-6-1001P39.doc
For Defendant Microsoft Corporation:
Warren J. Rheaume, WSBA No. 13,627Rima J. Alaily, WSBA No. 29,225HELLER EHRMAN LLP
701 Fifth Avenue, Suite 6100Seattle, WA 98104P: 206.447.0900
By: s/ Rima J. AlailyDate: April 11, 2007
ORDER
IT IS SO ORDERED this _17__ day of April , 2007.
ARICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE
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EXHIBIT 2
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EXHIBIT 3
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