Tristar v. Wink Intimates - Complaint

7/27/2019 Tristar v. Wink Intimates - Complaint

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Case 2:13-cv-05920-FSH-MAH Document 1 Filed 10/03/13 Page 1 of 9 PageID: 1

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEW JERSEYNEWARK DIVISION

Edward P. Bakos ([email protected])Noam J. Kritzer ([email protected])Bakos & Kritzer147 Columbia Turnpike, Suite 102Florham Park, New Jersey 07932Telephone: 212-724-0770Facsimile: 973-520-8260Attorneys for the Plaintiff:Tristar Products, Inc.TRISTAR PRODUCTS, INC.(a Pennsylvania corporation),

V.

WINK INTIMATES(a Canadian corporation),ANDREA CLAIR

Plaintiff,

(a Canadian individual), andANASTASIOS KOSKINAS(a Canadian individual),Defendants.

))) CIVIL ACTION FILE NUMBER:)))))))))))

COMPLAINT FOR DECLARATORY JUDGMENT OF PATENT NON-INFRINGEMENTAND DEMAND FOR JURY TRIAL

This is an action brought under the Declaratory Judgment Act by Plaintiff, TristarProducts, Inc. , a Pennsylvania corporation ("Tristar Products" or "Plaintiff' '), against DefendantsWink Intimates, a Canadian corporation, Andrea Clair, a Canadian individual, and AnastasiosKoskinas, a Canadian individual (collectively, "Defendants"). Upon actual knowledge withrespect to itself and its acts, and upon information and belief as to all other matters, Plaintiffalleges as follows:


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THE PARTIES1. Plaintiff Tristar Products is a Pennsylvania corporation having its corporate headquarters at

492 Route 46 East, Fairfield, New Jersey 07004.2. Upon information and belief, Wink Intimates is a Canadian corporation having its corporate

headquarters at 518 Victoria Park Ave. , Toronto, Ontario M4E 3T4.3. Upon information and belief, Defendant Andrea Clair is a Canadian individual having a place

of residence at 518 Victoria Park Ave ., Toronto, Ontario M4E 3T4.4. Upon information and belief, Defendant Anastasios Koskinas is a Canadian individual having

a place of residence at 518 Victoria Park Ave. , Toronto, Ontario M4E 3T4.

JURISDICTION AND VENUE5. This is a civil action for declaratory judgment brought under the Declaratory Judgment Act ,

28 U.S.C. 2201 and 2202, and arises under the patent laws of the United States, Title 35 ofthe United States Code (35 U.S.C. 101 , et seq.). The Court has subject matter jurisdictionover the action pursuant to 28 U.S.C. 1331 and 1338(a), as it involves substantial claimsarising under the Patent Laws of the United States together with related claims for patentinfringement.

6. Personal juridiction is proper in this Court as to Defendant Wink Intimates because, uponinformation and belief, Wink Intimates solicits business and conducts business within theState ofNew Jersey through authorized retailers having commercial and residential sales inthe State ofNew Jersey. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(b), 1391(c), and 1400(b).

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7. Upon information and belief, personal jurisdiction is proper against Defendant Andrea Clairbecause Andrea Clair has licensed rights in her intellectual property to Wink Intimates forexploitation within the State ofNew Jersey. Venue is proper in this judicial district pursuantto 28 U.S.C. 1391(b), 1391(c), and 1400(b).

8. Upon information and belief, personal jurisdiction is proper against Defendant AnastasiosKoskinas because Anastasios Koskinas has licensed rights in his intellectual property to WinkIntimates for exploitation within the State ofNew Jersey. Venue is proper in this judicialdistrict pursuant to 28 U.S.C. 1391(b), 1391(c), and 1400(b).

9. Tristar Products is alleged by Defendants to have committed acts of patent infringement inthis district as it is a resident of this district and conducts its allegedly infringing activitieswithin this district.

BACKGROUND10. Tristar Products is a developer, manufacturer, and marketer of various consumer products

including, but not limited to, home appliances, fitness equipment, health and beauty articles,and hardware.

11. Among the products sold by Tristar Products is the MILANA BRATM (hereinafter the"Accused Product").

12. Upon information and belief, Wink Intimates is the owner ofClair U.S. Design Patent No .

D622,4 78, which was issued on April 31 , 2010 and is entitled "Combination Brassiere andTank Top" (hereinafter the " '478 Design Patent"), a true and correct copy ofwhich isattached hereto as Exhibit A.

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13. Upon information and bel ief, Wink Intimates is the owner of Clair U.S. Patent No.8,182,31 0, which was issued on May 22, 2012 and is entitled "Combination Brassiere andTank Top" (hereinafter the "'310 Patent"), a true and correct copy of which is attached heretoas Exhibit B.

14. Upon information and belief, Andrea Clair and Anastasios Koskinas are the owners of ClairU.S. Patent No. 8,506 ,347, which was issued on August 13 , 2013 and is entitled"Combination Brassiere and Tank Top" (hereinafter the "'347 Patent"), a true and correctcopy of which is attached hereto as Exhibit C.

15. Upon information and belief, Defendants are the owners and/or licensees of, with the abilityto enforce, the ' 478 Design Patent, the ' 31 0 Patent, and the ' 347 Patent (collectively, "thePatents").

THE CONFLICT16. On September 4, 2013 Defendant Wink Intimates, through its attorney, notified Plaintiff via

letter (hereinafter "the Letter") that the Accused Product infringed the Patents. A true andcorrect copy of the Letter is attached hereto as Exhibit D.

17. The Letter stated that "Wink Intimates is prepared to protect its intellectual property throughall means necessary." Exh. D, para. 4.

18 . Further, the Letter stated "please contact me within 30 days. If I do not hear from you, no

further notice will be delivered prior to filing suit." Exh . D, para. 4.19. Defendants, through their actions, have impeded the activities of Plaintiff. There is a

substantial controversy between Tristar Products and the Defendants , parties with adverselegal interests, over the alleged infringement of the Patents by the Accused Product. As a

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result, there is a justiciable controversy of sufficient immediacy and reality to warrant theissuance of a declaratory judgment.

FIRST CLAIM FOR RELIEFDeclaration of o n - I n f r i n ~ e m e n t of the '478 D e s i ~ n Patent20. Tristar Products realleges and incorporates the allegations set forth in Paragraph 1 through

Paragraph 19.21. This cause of action arises under 35 U.S.C. 281 et seq.22. By virtue of Defendants' acts asserting rights under the Patents with respect to Tristar

Products' Accused Product, there is an actual and justiciable controversy between TristarProducts and Defendants as to whether Tristar Products is infringing the '478 Design Patent.

23. Tristar Products does not infringe, induce infringement of, and/or contributorily infringe, andhas not infringed, induced infringement of, and/or contributorily infringed any valid andenforceable claim of the ' 478 Design Patent.

24. Without declaratory relief, Tristar Products will be irreparably harmed and damaged.

SECOND CLAIM FOR RELIEFDeclaration of Non-Infrineement of the '310 Patent

25. Tristar Products realleges and incorporates the allegations set forth in Paragraph 1 throughParagraph 19 .

26. This cause of action arises under 35 U.S.C. 281 et seq.27. By virtue of Defendants' acts asserting rights under the Patents with respect to Tristar

Products' Accused Product, there is an actual and justiciable controversy between TristarProducts and Defendants as to whether Tristar Products is infringing the '31 0 Patent.

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28. Tristar Products does not infringe, induce infringement of, and/or contributorily infringe, andhas not infringed, induced infringement of, and/or contributorily infringed any valid andenforceable claim of the '3 I 0 Patent.


THIRD CLAIM FOR RELIEFDeclaration of Non-Infrineement of the '347 Patent

30. Tristar Products realleges and incorporates the allegations set forth in Paragraph I throughParagraph 19.

31. This cause of action arises under 35 U .S .C. 281 et seq.32. By virtue of Defendants' acts asserting rights under the Patents with respect to Tristar

Products' Accused Product, there is an actual and justiciable controversy between TristarProducts and Defendants as to whether Tristar Products is infringing the ' 347 Patent.

33. Tristar Products does not infringe, induce infringement of, and/or contributorily infringe, andhas not infringed, induced infringement of, and/or contributorily infringed any valid andenforceable claim ofthe '347 Patent.


FOURTH CLAIM FOR RELIEFDeclaration of Invalidity of the '478 Desien Patent

35. Tristar Products realleges and incorporates the allegations set forth in Paragraph I throughParagraph 19.

36. The '478 Design Patent is invalid and vo id for failure to comply with the requirements of35U.S.C. 101 , 102, 103 , and/or I12.

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37. An actual and justiciable controversy exists between Tristar Products and Defendantsregarding whether or not each claim of the ' 478 Design Patent is valid.

38. Without declaratory relief, Tristar Products will be irreparably harmed and damaged.39. Tristar Products is entitled to a judgment declaring that each claim of the ' 478 Design Patent

is invalid for failure to comply with the requirements of35 U.S.C. 101 , 102, 103, and/or112.

FIFTH CLAIM FOR RELIEFDeclaration of Invalidity of the '310 Patent40. Tristar Products realleges and incorporates the allegations set forth in Paragraph 1 through

Paragraph I9 .41. The ' 310 Patent is invalid and void for failure to comply with the requirements of35 U.S .C.

IOI , I02 , I03 , and/or II2.42. An actual and justiciable controversy exists between Tristar Products and Defendants

regarding whether or not each claim of the ' 31 0 Patent is valid.43. Without declaratory relief, Tristar Products will be irreparably harmed and damaged.44. Tristar Products is entitled to a judgment declaring that each claim of the ' 3IO Patent is

invalid for failure to comply with the requirements of 35 U.S.C. I 0 I , I 02, 103, and/or112.

SIXTH CLAIM FOR RELIEFDeclaration of Invalidity of the '347 Patent45. Tristar Products realleges and incorporates the allegations set forth in Paragraph I through

Paragraph I9.46. The '347 Patent is invalid and void for failure to comply with the requirements of35 U.S.C.

IOl , I02 , I03 , and/or II2.

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47. An actual and justiciable controversy exists between Tristar Products and Defendantsregarding whether or not each claim of the ' 347 Patent is valid.

48. Without declaratory relief, Tristar Products will be irreparably harmed and damaged.49. Tristar Products is entitled to a judgment declaring that each claim of the ' 347 Patent is

invalid for failure to comply with the requirements of35 U.S.C. 101 , 102, 103 , and/or112.

PRAYER FOR RELIEF

WHEREFORE, Tristar Products prays that the Court enter judgment against DefendantsWink Intimates, Andrea Clair, and Anastasios Koskinas:A. A declaration that Tristar Products has not infringed, induced infringement of, orcontributorily infringed, and does not infringe, induce infringement of, and/or contributorilyinfringe, any valid and enforceable claim of Clair U.S. Design Patent No. D622,478;B. A declaration that Tristar Products has not infringed, induced infringement of, orcontributorily infringed, and does not infringe, induce infringement of, and/or contributorily

infringe, any valid and enforceable claim ofClair U.S. Patent No. 8,182,31 0;C. A declaration that Tristar Products has not infringed, induced infringement of, orcontributorily infringed, and does not infringe, induce infringement of, and/or contributorilyinfringe, any valid and enforceable claim of Clair U.S. Patent No. 8,506,347;D. A declaration that Clair U.S. Design Patent No. D622,478 is invalid and void for failure

to comply with the requirements of35 U.S.C. 101 , 102,103 , and/or 112 ;E. A declaration that Clair U.S. Patent No. 8,182,310 is invalid and void for failure tocomply with the requirements of35 U.S.C. 101 , 102,103 , and/or 112 ;

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F. A declaration that Clair U.S . Patent No. 8,506,347 is invalid and void for failure tocomply with the requirements of35 U.S.C. 101 , 102,103, and/or 112;G. A declaration that this case is "exceptional" within the meaning of35 U.S.C. 285;H. An award to Tristar Products of its costs, attorney fees , and expenses pursuant to 35U.S.C. 285; andI. That Tristar Products be awarded such other and further relief as this Court deems properand just.

DEMAND FOR JURY TRIALTristar Products demands a trial by jury of all issues properly triable to a jury in this case.

Respectfully submitted this 3'dday of OCTOBER 2013 ,

By: f t - - -tciWardP. Bakos ( [email protected])Noam J. Kritzer ([email protected])Bakos & Kritzer147 Columbia Turnpike, Suite 102Florham Park, New Jersey 07932Telephone: _908-273-0770Facsimile: 973-520-8260Attorneys for PlaintiffTristar Products, Inc.

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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, Email 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

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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

Case 2:13-cv-05920-FSH-MAH Document 1-1 Filed 10/03/13 Page 1 of 2 PageID: 10

Tristar Products, Inc.

Essex County, NJ

Edward P. Bakos/Noam J. Kritzer, Bakos & Kritzer, 147 ColumbiaTurnpike, Florham Park, New Jersey 07932

Wink Intimates,

Andrea Clair,

Anastasios Koskinas

Canada

35 U.S.C. Section 271, et seq.

Declaratory Judgment of Patent Non-Infringement

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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 at time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In 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

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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.)

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V. Origin. Place an "X" in one of the six boxes.Original Proceedings. (1) Cases which originate in the United States district courts.

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



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EXHIBIT A



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Case 2:13-cv-05920-FSH-MAH Document 1-2 Filed 10/03/13 Page 2 of 4 PageID: 13111111 1111111111111111111111111111111111111111111111111111111111111

c12) United States Design PatentClair et al.

(54) COMBINATION BRASSIERE AND TANK TOP(76) Inventors: Andrea T. Clair, Toronto (CA);

Anastasios Koskinas, Toronto (CA)(**) Term: 14 Years(21) Appl. No.: 29/300,471(22) Filed: Mar. 31,2008(51) LOC (9) Cl. . 02-01(52) U.S. Cl. ....................................................... D2/706(58) Field of Classification Search . .. ... ... D2/706-711,

(56)

D2/731, 736; 2/67,73, 113, 118, 913; 450/50,450/65, 70, 31, 93See application file for complete search history.References Cited

U.S. PATENT DOCUMENTSD318,749 s *5,045,018 A *5,882,242 A *6,113,460 A *D452,601 S *

8/1991 Suleiman ............... ...... D2/7089/1991 Costanzo . .. .. ... ... ... ... .. . 450/313/1999 Hardy .. ... .. ... ... ... ... ... .. . 450/939/2000 McKeown . .. ... ... ... ... .. . 450/31112002 Allen et al ................... D2/706

USOOD622478S

(10) Patent No.: US D622,4 78 S** Aug. 31, 201045) Date of Patent:

6,918,813 B2 * 7/2005 Hass ....................... .... 450/75D522,717 S * 6/2006 Aurilia eta!. ................ D2/7067,083,494 B2 * 8/2006 Sandroussi et al ............. 450/31D546,028 S * 7/2007 Lin ................ ............. D2/706D560,877 S * 2/2008 Utaka .......................... D2/706

* cited by examinerPrimary Examiner-Philip S HyderAssistantExaminer-Anna J Burmeister(74)Attorney, Agent, orFirm-William D. Hare; McNeely &Hare LLP(57) CLAIMThe ornamental design for a combination brassiere and tanktop, as shown and described:

DESCRIPTIONFIG. 1 is a rear elevational view of a combination brassiereand tank top, showing our new design; and,FIG. 2 is a front elevational view thereof.The broken lines shown in the drawings are for environmentalpurposes only and form no part of the claimed design.

1 Claim, 2 Drawing Sheets


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U.S. Patent Aug. 31, 2010

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Tristar v. Wink Intimates - Complaint

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