swimways et. al. v. greyland trading

8/13/2019 SwimWays Et. Al. v. Greyland Trading

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S W I M W Y S C O R P O R T I O N and K E L S Y U SL L C

Plaintiffs

v

G R E Y L N D T R D IN G L I M I T E D

De fe n d a n t

Fll UNITED ST TES DISTRI T OURJT

FOR THE EASTERN DISTRICT OF VIR INIA Nor fo lk Division Lc - ; i cou r t

VA

ivil ction No o? IM^M^U?J U R Y T R I L D E M N D E D

C O M P L I N T

Plaintiffs, SwimWays Corporation ( SwimWays ) and Kelysus, LLC ( Kelsyus ), bycounsel, for their Complaint against Defendant Greyland Trading Limited ( Greyland orDefendant ) allege as follows:

Part ies

1. Plaintiff SwimWays is a Virginia corporation with its principal place of business at5816 Ward Court, Virginia Beach, Virginia 23455.

2. Plaintiff Kelsyus is a Virginia limited liability company with a principal place ofbusiness at 5816 Ward Court, Virginia Beach, Virginia 23455.

3. Upon information and belief, DefendantGreyland is a Hong Kong companywith itsprincipal place of business at 66 ModyRoad, Room 705A-706, West Wing, Tsim Sha Tsui Centre,Kowloon, Hong Kong.

Jur isd ic t ion a n d V e n u e

4. This is an action for patent infringement arising under the Patent Act, 35 U.S.C. 1et seq..

5. This Court has jurisdiction over the subject matter of this action pursuant to 28


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U.S.C. 1331and 1338(a).6. Venue is proper in this district pursuant to 28 U.S.C. 1391(c) because it is a district

in which Greyland is subject to personal jurisdiction.7. This Court has personal jurisdiction over Greyland because Greyland has

committed, directed, authorized, endorsed and/or approved of acts of infringement in the EasternDistrict of Virginia; Greyland has caused tortious injury to SwimWays in the Eastern District ofVirginia, NorfolkDivision; and Greyland has transacted substantial businessin thisjudicialdistrict.

Background

8. Swimways is a worldwide manufacturer of innovative and commerciallysuccessfulleisure and recreational water products. The SwimWaysbrand has been around for over 35 years,and SwimWays continuesto invest substantial resources into its product designanddevelopment tocreate unique quality products which are leaders in the industry. SwimWays products can befound in thousands of major retailers and individual pool dealers, both in the United States andabroad.

1. SwimWays products include a line of Spring Float inflatable pool floats, anexample ofwhich is attached hereto as Exhibit A. Kelsyus owns all right, title, and interest toUS Patent No. 8,066,540 ( 540 patent ), which was duly and legally issued on Nov. 29, 2011.SwimWays is an exclusive licensee of the 540 patent. A true and accurate copy of the 540patent is attached hereto as Exhibit B.

9. The Spring Float products (collectively, the SwimWays Products ) have beenadvertised through various advertising media, including on the Internet and substantial advertisingdollars have been spent in connection with the Products. The SwimWays Products have appearedin printmedia, newspapers,trade journals, magazines,promotionalmaterials, and on the Internet, in


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addit ion to at retail locations.

10. Greyland sells a Recliner Fabric Comfort Lounge ( Aqua-Leisure Recliner ) whichinfringes the 540 patent. A photograph of the Aqua-Leisure Recliner is shown below:

11. Greyland also sells a modified version of the Aqua-Leisure Recline sold throughSam s Club ( Sam s Club Recliner ). The Sam s Club Recliner also infringes the 540 patent. Aphotograph of the Sam s Club Recliner is shown below:

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12. Greyland also sells a second redesigned version of the Aqua-Leisure Recliner( Redesigned Recliner ). The Redesigned Recliner also infringe the 540 patent. A photograph ofthe Redesigned Recliner is shown below:


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ount One( In f ri ngemen t o f the 540 patent)

13 Plaintiffs repeat and reallege, as if fully set forth herein, each and every allegationcontained in the foregoing paragraphs.

14. Greyland manufactures, distributes, sells, offers to sell, and/or imports the infringingAqua-Leisure Recliner, Sam s Club Recliner, and Redesigned Recliner (collectively, AccusedProducts ) throughout the United States in the stream of interstate commerce.

15. The Accused Products embody and infringe the 540 patent in violation of Kelsyusand SwimWays statutory rights under 35 U.S.C. 1et seq.

16. Greyland does not have license or authorization from Kelsyus or SwimWays toutilize the 540 patent.

17 Greyland s conduct also constitutes contributor) and/or induced infringement of the540 patent.

18. Upon information and belief, Greyland s infringement of the 540 patent has beenwillful.

19. The foregoing acts of patent infringement by Greyland has caused, and unlessenjoined by this Court, will continue to cause immediate and irreparable injury and damage toKelsyus and SwimWays, leaving them with no adequate remedy at law.


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P r aye r Fo r Relief

WHEREFORE, Plaintiffs pray:(a) that this Court issue preliminary and permanent injunctive relief against Greyland

its respective officers, agents, servants, employees, attorneys, parentand subsidiarycorporations assigns and successors in interest, and those persons in active concertor participation with them, enjoining them from continued acts of infringement ofthe 540 patent, including, without limitation, an injunction against future sales ofthe Accused Products;

(b) ajudgment thatthe 540 patent is duly and legally issued, valid andenforceable;(c) a judgmentthat Greylandhas infringed one or more claims of the 540 patent;(d) an accounting and award of compensatory and punitive damages under 35 U S C

284 including but not limited to, Plaintiffs lost profits, but in anyeventnot lessthana reasonableroyalty, resulting fromGreyland s infringement of the 540 patent,together with prejudgment and postjudgment interest;

(e) thatGreyland s actsbe deemed willful and intentional andthatGreyland be requiredto pay to Plaintiffs additional damages equal to three times the actual damagesawardedpursuant to 35U.S.C. 284;

(f) that this be adjudged an exceptional case and that Plaintiffs be awarded theirattorney fees,pursuantto 35U.S.C. 285 in addition to other authority;

(g) thatthisCourtawardPlaintiffs theircosts incurred herein; and(h) for suchother and furtherreliefas this Court deemsjust.

JURY DEM ND

Pursuant to Federal Rule ofCivil Procedure 38, Plaintiffs hereby demands a trial by juryon all issues so triable.


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Dated: February J^ 2 14

Craig L. MytelkaVirginia State Bar No. 31652Counsel fo r PlaintiffsWILLIAMS MULLEN, P.C.999 Waterside Dr., Suite 1700Norfolk, VA 23510Telephone: (757) 473-5336Facsimile: (757) [email protected]

SWIMWAYS CORPORATION

By: Johf/B. SwingfVirginia State Bar NoCounsel fo r PlaintiffsWILLIAMS MULLEN, P.C.999 Waterside Dr., Suite 1700Norfolk, VA 23510Telephone: (757) 622-3366Facsimile: (757) [email protected]

swimways et. al. v. greyland trading

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