Dune Jewelry v. Rebecca James - Complaint
Content
Case 1:15-cv-10597 Document 1 Filed 02/27/15 Page 1 of 9
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
DUNE JEWELRY, INC.
Plaintiff,
v.
REBECCA JAMES, LLC,
Defendant.
)
)
)
)
)
)
)
)
)
)
Civil Action No. 1:15-cv-10597
COMPLAINT and Jury Demand
Plaintiff, Dune Jewelry, Inc., (“Dune Jewelry”), by and through its undersigned counsel,
for its Complaint against Rebecca James, LLC, doing business under the fictitious name
Tropicality ("Tropicality”), shows and alleges as follows:
THE PARTIES
1.
Dune Jewelry is a Massachusetts corporation with its principal place of business at
1 Westinghouse Plaza, Building D, Suite 7 Boston, MA 02136.
2.
Upon information and belief, Rebecca James, LLC is a Florida limited liability
company with a principal place of business at 321 Beach Road Sarasota, FL 34243.
3.
Rebecca James, LLC is doing business under the fictitious name Tropicality.
JURISDICTION AND VENUE
4.
This action arises under 35 U.S.C. § 1 et seq. including 35 U.S.C. §§ 271, 281, 283,
284, and 285. Accordingly, this Court has subject matter jurisdiction over this action under 28
U.S.C. §§ 1331 and 1338.
Case 1:15-cv-10597 Document 1 Filed 02/27/15 Page 2 of 9
5.
This Court has subject matter jurisdiction over the claims asserted in this Complaint
pursuant to 28 U.S.C. §§1331 and 1338. This Court also has supplemental jurisdiction over the
pendent state law claims pursuant to 28 U.S.C. §1367(a).
6.
This Court has personal jurisdiction over Tropicality through its purposeful
minimum contacts with Massachusetts, as Tropicality has been engaged in substantial and
continuous business in this Judicial District.
7.
This Court also has personal jurisdiction over Tropicality as Tropicality has
purposefully availed themselves to the Commonwealth by their interactive and commercial
website which has, and continues to, solicit business in the Commonwealth
8.
Venue is proper in this Court pursuant to 28 U.S.C. §§1391and 1400.
FACTUAL BACKGROUND
A.
U.S. Patent No. D705,113 Patent
9.
On October 24, 2013, Dune Jewelry and/or its predecessor in interest filed an
application with the United States Patent and Trademark Office (hereinafter the "USPTO") for a
U.S. Design Patent entitled SAND JEWELRY, to which the USPTO assigned Application No.
29/470,752.
10.
Application No. 29/470,752 ultimately issued as U.S. Patent No. D704,113
(“’D113 Patent”) on May 20, 2014. Exhibit A
11.
The ’D113 Patent claims the ornamental design for sand jewelry.
B.
U.S. Patent No. D704,589 Patent
12.
On October 24, 2013, Dune Jewelry and/or its predecessor in interest filed an
application with the USPTO for a U.S. Design Patent entitled SAND JEWELRY, to which the
USPTO assigned Application No. 29/470,755.
Case 1:15-cv-10597 Document 1 Filed 02/27/15 Page 3 of 9
13.
Application No. 29/470,752 ultimately issued as U.S. Patent No. D704,589
(“’D589 Patent”) on May 13, 2014. Exhibit B
14.
The ’D589 Patent claims the ornamental design for sand jewelry.
C.
Defendant's Infringing Products
15.
Tropicality’s infringing products (hereinafter referred to as “infringing products”)
includes, but are not limited to:
16.
Tropicality’s horizontal bar design (Exhibit C);
Tropicality’s Dainty Silver Sand Bangle (Exhibit D);
Tropicality’s Beach Sand Cuff Bracelet (Exhibit E);
Tropicality’s Beach Sand Macrame Bracelet (Exhibit F);
Tropicality’s Wire Wrapped Sand Bangle (Exhibit G); and,
Tropicality’s Beach Sand Studs (Exhibit H)
Upon information and belief, all of the Tropicality’s infringing products contain
sand and infringe the claims of at least one of Dune Jewelry’s issued patents.
17.
Tropicality manufactures, offers to sell, and sells the infringing products in the
United States without a license to do so.
18.
Tropicality offers for sale the infringing products throughout the United States (e.g.,
Massachusetts) via their website http://tropicality.bigcartel.com/.
19.
Tropicality has sold at least one, if not all, of the infringing products in
Massachusetts.
D.
Sandbar Trademark
20.
Dune Jewelry has been using the mark “Sandbar” in conjunction with the offering
and selling of its jewelry since at least as early as 2010. Exhibit I.
Case 1:15-cv-10597 Document 1 Filed 02/27/15 Page 4 of 9
21.
On January 22, 2015 Dune Jewelry filed an in-use trademark application with the
USPTO for the mark “Sandbar” in international class 14 for Jewelry (“Sandbar Application”). The
Sandbar Application was issued Serial No. 86511361 by the USPTO.
22.
Upon information and belief, Tropicality is currently selling its horizontal silver
bar design necklace under the name “Silver Sandbar.”
E.
Tropicality’s Unfair Trade Practices
23.
Upon information and belief, with respect to Tropicality’s infringing products,
Tropicality does minimal research and development of their own, and simply copy Dune Jewelry’s
patented products.
24.
Tropicality tarnishes Dune Jewelry’s reputation and erodes Dune Jewelry’s ability
to leverage its patents by making misleading statements to potential purchasers of Dune Jewelry’s
patented products and by providing inferior copycat products which tarnishes the sand jewelry
industry.
F.
Plaintiff’s Notice Letter
25.
On June 10, 2014, Plaintiff, upon discovering Tropicality’s use, manufacturing,
advertising and sale of the above identified infringing products, sent a letter to the Defendant to
inform it of Dune Jewlery’s patents and other intellectual property rights, and provided the
Defendant notice of their infringing items. Exhibit J.
26.
Defendant confirmed receipt of the letter, but never responded in substance and
never ceased manufacturing, using, advertising, or selling any of the above alleged infringing
products.
27.
Upon information and belief, Defendant has committed the infringing acts
complained of willfully and with conscious disregard of the Plaintiff’s rights.
Case 1:15-cv-10597 Document 1 Filed 02/27/15 Page 5 of 9
COUNT I
(INFRINGEMENT OF THE ‘D113 PATENT)
28.
Plaintiff repeats and realleges each and every allegation set forth in paragraphs 1-
25 inclusive, and incorporates them herein by reference.
29.
Pursuant to 35 U.S.C. §287, examples of notice include a letter dated June 10, 2014
to the Defendant. Exhibit J.
30.
On information and belief, Tropicality has and continues to, without license from
Dune Jewelry, infringe the ‘D113 patent under 35 U.S.C. §271(a), by manufacturing, using, selling
and/or offering to sell in the United States, and/or importing into the United States one or more of
the infringing products, which embody the design covered by the ’D113 design patent.
31.
On information and belief, Tropicality has and continues to, without license from
Dune Jewelry, induce others (e.g., third party re-sellers) to infringe the ‘D113 patent under 35
U.S.C. §271(b), by using, selling and/or offering to sell in the United States, and/or importing into
the United States one or more of the infringing products, which embody the design covered by the
’D113 design patent, through a network of third party websites and stores who sell directly to
consumers.
32.
As a direct and proximate consequence of the acts and practices of Tropicality,
Dune Jewelry has been, is being and, unless such acts and practices are enjoined by the Court, will
continue to be injured in its business and property rights, and has suffered, is suffering and will
continue to suffer injury and damages for which it is entitled to relief under 35 U.S.C. §284
adequate to compensate for such infringement, but in no case less than a reasonable royalty.
33.
As a direct and proximate consequence of the acts and practices of Tropicality,
Tropicality has also caused, is causing and, unless such acts and practices are enjoined by the
Case 1:15-cv-10597 Document 1 Filed 02/27/15 Page 6 of 9
Court, will continue to cause irreparable harm to Dune Jewelry for which it is entitled to
preliminary and permanent injunctive relief under 35 U.S.C. §283.
34.
Tropicality's acts of infringement are intentional and willful and "exceptional"
pursuant to 35 U.S.C. §285.
COUNT II
(INFRINGEMENT OF THE ‘D589 PATENT)
35.
Plaintiff repeats and realleges each and every allegation set forth in paragraphs 1-
34 inclusive, and incorporates them herein by reference.
36.
Pursuant to 35 U.S.C. §287, examples of notice include a letter dated June 10, 2014
to the Defendant. Exhibit J.
37.
On information and belief, Tropicality has and continues to, without license from
Dune Jewelry, infringe the ‘D589 patent under 35 U.S.C. §271(a), by manufacturing, using, selling
and/or offering to sell in the United States, and/or importing into the United States one or more of
the infringing products, which embody the design covered by the ’D589 design patent.
38.
On information and belief, Tropicality has and continues to, without license from
Dune Jewelry, induce others (e.g., third party re-sellers) to infringe the ‘D589 patent under 35
U.S.C. §271(b), by using, selling and/or offering to sell in the United States, and/or importing into
the United States one or more of the infringing products, which embody the design covered by the
’D589 design patent, through a network of third party websites and stores who sell directly to
consumers.
39.
As a direct and proximate consequence of the acts and practices of Tropicality,
Dune Jewelry has been, is being and, unless such acts and practices are enjoined by the Court, will
continue to be injured in its business and property rights, and has suffered, is suffering and will
Case 1:15-cv-10597 Document 1 Filed 02/27/15 Page 7 of 9
continue to suffer injury and damages for which it is entitled to relief under 35 U.S.C. §284
adequate to compensate for such infringement, but in no case less than a reasonable royalty.
40.
As a direct and proximate consequence of the acts and practices of Tropicality,
Tropicality has also caused, is causing and, unless such acts and practices are enjoined by the
Court, will continue to cause irreparable harm to Dune Jewelry for which it is entitled to
preliminary and permanent injunctive relief under 35 U.S.C. §283.
41.
Tropicality's acts of infringement are intentional and willful and "exceptional"
pursuant to 35 U.S.C. §285.
COUNT III
(UNJUST ENRICHMENT)
42.
Plaintiff repeats and realleges each and every allegation set forth in paragraphs 1-
41 inclusive, and incorporates them herein by reference.
44.
As a result of the conduct of the Tropicality as described above, and unless the relief
sought in this Complaint is granted, Tropicality will unjustly benefit from and be unjustly enriched
by, their own intentional and wrongful acts.
COUNT IV
(Common Law Trademark Infringement)
45.
Plaintiff repeats and realleges each and every allegation set forth in paragraphs 1-
44 inclusive, and incorporates them herein by reference.
46.
Plaintiff has used and has continued to use, without interruption, the Sandbar mark
in connection with the sale of jewelry since at least as early as 2010.
47.
By virtue of its exclusive and continued use of the Sandbar mark, Plaintiff has
acquired the sole and exclusive right to use said mark in connection with jewelry. As a result of
Case 1:15-cv-10597 Document 1 Filed 02/27/15 Page 8 of 9
nationwide, and international, advertising and sales of jewelry in connection with the Sandbar
mark, Plaintiff has gained recognition and good will in the mark for use with the jewelry.
48.
Without the consent of the Plaintiff, Tropicality is offering for sale and selling
jewelry under the name Sandbar.
49.
Tropicality’s use of “Sandbar” in connection with jewelry has caused, and will
continue to cause, a likelihood of confusion, mistake or deception, all to the Plaintiff's irreparable
injury and Tropicality’s unjust enrichment and benefit in violation of Plaintiff's common law
trademark rights and constitute a fraud on the public.
50.
Tropicality’s use of “Sandbar” in connection with jewelry has caused and is likely
to continue to cause members of the public to believe that the Tropicality’s jewelry is offered by
way of the Plaintiff or with the approval, consent and or sponsorship of the Plaintiff.
51.
As the direct and proximate result of Tropicality’s infringement, the Plaintiff has
suffered, and will continue to suffer, monetary loss and irreparable injury to its business,
reputation, and good will warranting an injunction and an award of monetary damages.
JURY DEMAND
Plaintiff demands a trial by jury on all claims so triable.
PRAYER FOR RELIEF
WHEREFORE, as relief, Plaintiff respectfully prays for a judgment against Defendant as
follows:
A.
A judgment that Defendant has infringed one of more claims of each of Dune
Jewelry’s asserted patents;
B.
An order and judgment preliminarily and permanently enjoining Defendant and its
officers, directors, agents, servants, employees, affiliates, attorneys, and all others acting in privity
Case 1:15-cv-10597 Document 1 Filed 02/27/15 Page 9 of 9
or in concert with them, and their parents, subsidiaries, divisions, successors and assigns, from
further acts of infringement of Dune Jewelry’s asserted patents and trademarks;
C.
A judgment awarding Dune Jewelry all damages adequate to compensate for
Defendant’s infringement of Dune Jewelry’s asserted patents, and in no event less than a
reasonable royalty for Defendant’s acts of infringement, including all pre-judgment and postjudgment interest at the maximum rate permitted by law;
D.
A judgment awarding Dune Jewelry all damages, including treble damages, based
on any infringement found to be willful, pursuant to 35 U.S.C. §284, together with prejudgment
interest;
E.
Declaring this to be an "exceptional" case within the meaning of 35 U.S.C. §285,
entitling Dune Jewelry to an award of its reasonable attorney fees, expenses and costs in this action
as well as pre-judgment and post judgment interests;
F.
Grant damages associated with Defendant’s infringing activities be trebled where
allowed by law as a result of Defendant’s actions complained of herein; and,
G.
Dune Jewelry has such other and further relief as this Court may deem just and
equitable.
Dated: February 27, 2015
Respectfully Submitted,
Attorney for Defendant
By: /s/ Brendan M. Shortell
Brendan M. Shortell (BBO# 675851)
Gary E. Lambert (BBO# 548303)
Lambert & Associates
92 State Street
Suite 200
Boston, MA 02109
Telephone: 617.720.0091
Facsimile: 617.720.6307
[email protected]
Case 1:15-cv-10597 Document 1-1 Filed 02/27/15 Page 1 of 2
USOOD705113 S
Exhibit A
(12) United States Design Patent (10) Patent No.:
Daniels Christensen
(54)
SAND JEWELRY
(71) Applicant: Holly Daniels Christensen, Dedham,
MA (US)
8,281,465
2006/0166002
2007/0104928
2010/0166997
2010/0300149
2010/0307671
(72) Inventor: Holly Daniels Christensen, Dedham,
Term:
[Online]
14 Years
(63)
Continuation of application No. 13/245,685, ?led on
Oct. 24, 2013
Related U.S. Application Data
Sep. 26, 2011.
(58)
Yokochi et a1.
Ghisaka et a1.
Seliktar
David
http://data.uncomm0ng00ds.com.edgesuite.net/images/
Sand Jewelry with Appeal!, Kristen, Nov. 9, 2009, pp. 1-3.
Top 5 Resin Tips, Tammy Jones, Dec. 13, 2010, pp. 1-3.
annemadedesigns, Jul. 21, 2009, pp. 1-2.
Uniquie Handcrafted Jewelry, Aug. 23, 2007, pp. 1-3.
Alexandra Mosher, Dec. 18, 2010, pp. 1-2.
Filed:
.............................................. ..
11-01
U.S. Cl.
USPC
5/2007
7/2010
12/2010
12/2010
Andrew Goss, Introduction to Basic Concrete Jewelry, 2004 pp. 1-4.
(22)
LOC (10) Cl.
10/2012 Miraldi
7/2006 Grey et a1.
newweb/product/20800izoom1jpg. Accessed Nov. 26, 2013*
(21) Appl. No.: 29/470,752
(51)
(52)
B1
A1
A1
A1
A1
A1
*1. May 20, 2014
OTHER PUBLICATIONS
MA (US)
(**)
US D705,113 S
(45) Date of Patent:
........................................... .. D11/79; D11/43
Field of Classi?cation Search
* cited by examiner
Primary Examiner * Garth Rademaker
Assistant Examiner * Melanie Pellegrini
(74) Attorney, Agent, or Firm * Lambert & Associates;
Gary E. Lambert; David J. Connaughton, Jr.
USPC ........... .. D11/79i85, 1425, 4047; 63/18, 20,
63/12, 13, 3.1, 3.2, 3, 1.11
See application ?le for complete search history.
(56)
References Cited
(57)
CLAIM
The ornamental design for sand jewelry, as shown and
described.
DESCRIPTION
U.S. PATENT DOCUMENTS
2,943,953 A
3,477,990 A
3,856,644 A
D241,365 S
*
3,997,686 A
D252,561 S
*
*
D306,707 S *
D311,356 S
Durante ....................... .. D11/91
8/1979
Durante ....................... .. D11/61
2/1982 MacFaden
11/1983
Weeks ............... ..
3/1990 Henry De Frahan
*
10/1990
*
*
7/2010
2/2012
6,607,818 B1
D619,919 S
D654,391 S
9/1976
embodies my design;
12/1976 McClure
D263,029 S *
D271,188 S
FIG. 1 is a perspective front view of the sand jewelry, which
7/1960 Daniel
11/1969 Dante et a1.
12/1974 Traenckner et al.
D11/61
D11/61
D11/75
De Frahan ................... .. D11/79
8/2003 SatZ et a1.
Harding ....................... .. D11/80
Minkkinen et a1. .......... .. D11/40
FIG. 2 is a front elevation view of the sand jewelry;
FIG. 3 is a rear elevation view of the sand jewelry;
FIG. 4 is a side view of the sand jewelry;
FIG. 5 is a bottom view of the sand jewelry; and,
FIG. 6 is a top view of the sand jewelry.
The portion of the drawings in broken lines forms no part of
the claimed design.
1 Claim, 1 Drawing Sheet
Case 1:15-cv-10597 Document 1-1 Filed 02/27/15 Page 2 of 2
US. Patent
May 20, 2014
ig. 2
Fig. 4
Fig. 6
US D705,113 S
Fig. 3
Case 1:15-cv-10597 Document 1-2 Filed 02/27/15 Page 1 of 2
USOOD704589S
Exhibit B
(12) United States Design Patent (10) Patent No.:
Daniels Christensen
(54)
(45) Date of Patent:
SAND JEWELRY
(71) Applicant: Holly Daniels Christensen, Dedham,
2010/0166997 A1
2010/0300149 A1
2010/0307671 A1
MA (US)
(**)
Filed:
14 Years
circleicharm,512968295. Accessed Nov. 26, 2013*
[Online] http://wwwcafepress.c0m/+threeipawisandinecklacei
[Online] http://j.horloger-paris.com/23607-34337-h0me/ch0pard
pendant-happy-diamonds-795759-1003jpg. Accessed Nov. 26,
2013*
Andrew Goss, Introduction to Basic Concrete Jewelry, 2004 pp. 1-4.
Oct. 24, 2013
(63)
Continuation of application No. 13/245,685, ?led on
(51)
(52)
LOC (10) Cl.
Sep. 26, 2011.
(58)
http://data.uncomm0ng00ds.com.edgesuite.net/images/
newweb/product/20800izooml .jpg. Accessed Nov. 26, 2013*
Related U.S. Application Data
11-01
............................................. .. D11/79; D11/7
Field of Classi?cation Search
USPC ........... .. D11/79i85, 1425, 40417; 63/18, 20,
63/12, 13, 3.1, 3.2, 3, 1.11
See application ?le for complete search history.
(56)
Sand Jewelry with Appeal!, Kristen, Nov. 9, 2009, pp. 1-3
Top 5 Resin Tips, Tammy Jones, Dec. 13, 2010, pp. 1-3
Annemadedesigns, Jul. 21, 2009, pp. 1-2.
Uniquie Handcrafted Jewelry, Aug. 23, 2007, pp. 1-3
Alexandra Mosher, Dec. 18, 2010, pp. 1-2.
* cited by examiner
.............................................. ..
U.S. Cl.
USPC
[Online]
MA (US)
(21) Appl. No.: 29/470,755
(22)
7/2010 Chisaka et a1.
12/2010 Seliktar
12/2010 David
OTHER PUBLICATIONS
(72) Inventor: Holly Daniels Christensen, Dedham,
Term:
US D704,589 S
*1. May 13, 2014
Primary Examiner * Garth Rademaker
Assistant Examiner * Melanie Pellegrini
(74) Attorney, Agent, or Firm * Lambert & Associates;
Gary E. Lambert; David J. Connaughton, Jr.
(57)
CLAIM
The ornamental design for sand jewelry, as shown and
described.
References Cited
DESCRIPTION
U.S. PATENT DOCUMENTS
FIG. 1 is a front perspective view of sand jewelry showing my
D38,476 S
2,943,953
3,477,990
3,856,644
3,997,686
*
A
A
A
A
D311,504 S
*
6,607,818 B1
D583,698 S
D619,492 S
8,281,465 B1
2006/0166002 A1
2007/0104928 A1
3/1907
Arnold ......................... .. D11/79
7/1960
11/1969
12/1974
12/1976
Daniel
Dante et a1.
Traenckner et a1.
McClure
10/1990
De Frahan ................... .. D11/79
8/2003 SatZ et a1.
*
*
12/2008 Botten?eld et a1. ......... .. D11/79
7/2010 Wallace ....................... .. D11/82
10/2012 Miraldi
7/2006 Grey et a1.
5/2007 Yokochiet a1.
new design;
FIG. 2 is a front elevation view of the sand jewelry;
FIG. 3 is a rear elevation view of the sand jewelry;
FIG. 4 is a bottom view ofthe sandjewelry;
FIG. 5 is a top view of the sand jewelry; and,
FIG. 6 is a side view of the sand jewelry.
The portion of the drawings in broken lines forms no part of
the claimed design.
1 Claim, 1 Drawing Sheet
Case 1:15-cv-10597 Document 1-2 Filed 02/27/15 Page 2 of 2
U S. Patent
M y 13, 2014
US D704,589 S
Fig, 4
"ig, 6
Pig. 5
Case 1:15-cv-10597 Document 1-3 Filed 02/27/15 Page 1 ofExhibit
1
C
Case 1:15-cv-10597 Document 1-4 Filed 02/27/15 Page 1 of 1
Exhibit D
Case 1:15-cv-10597 Document 1-5 Filed 02/27/15 Page 1 of 1
Exhibit E
Case 1:15-cv-10597 Document 1-6 Filed 02/27/15 Page 1 of 1
Exhibit F
Case 1:15-cv-10597 Document 1-7 Filed 02/27/15 Page 1 of 1
Exhibit G
Case 1:15-cv-10597 Document 1-8 Filed 02/27/15 Page 1 of
1
Exhibit
H
2/27/2015
Sandbar Necklace Necklaces Jewelry
Case 1:15-cv-10597 Document
1-9 Filed 02/27/15 Page 1Exhibit
of 2
MEN U
I
e Original Beach Sand Jewelry Co. ™
HOME / JEWELRY / NECKLACES / SANDBAR NECKLACE
Sandbar
Necklace
The Sandbar™. A perfect play on words accompanies this
statementmaking necklace. A sterling silver, 1.75”x.25” bezel
is filled with your choice of beach sand, then hand sanded and
polished to the final matte finish. Available with 16", 18" or 20"
silver chain or black cord.
SKU: SBAR_N
$154.00
Select your sand:
S E LECT A SA ND
PROVIDE YOUR OWN SAND
TYPE *
CHOOSE AN OPTION...
SIZE *
CHOOSE AN OPTION...
QTY:
https://dunejewelry.com/jewelry/necklaces/sandbarnecklace
1
ADD TO CART
1/2
2/27/2015
Sandbar Necklace Necklaces Jewelry
Case 1:15-cv-10597 Document
1-9 Filed 02/27/15 Page 2 of 2
ADD TO CART
ADD TO WISHLIST
Fine
Print
RETURN PO
LICY
WARRANTY
& REPAIR
PRIVACY P
OLICY
Stay in the
Loop
Send Us Your
Sand
Sign up for all the latest
news & special offers from
Dune Jewelry
Detailed instructions on
how to send us your sand
S E E DE TA ILS
EMAIL ADDRESS
GO
BECOME A
DEALER
© 2015 DUNE JEWELRY. ALL RIGHTS RESERVED U.S. PATENT NO. D705,113 D704,589 & OTHER PATENTS PENDING
DESIGNED BY TOOL STUDIOS
https://dunejewelry.com/jewelry/necklaces/sandbarnecklace
2/2
Case 1:15-cv-10597 Document 1-10 Filed 02/27/15 Page 1 of 1
Exhibit J
Case 1:15-cv-10597 Document 1-11 Filed 02/27/15 Page 1 of 2
JS 44 (Rev. 12/12)
CIVIL COVER SHEET
The 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 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. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS
DEFENDANTS
Dune Jewelry, Inc.
Rebecca James, LLC
(b) County of Residence of First Listed Plaintiff
County of Residence of First Listed Defendant
Suffolk
(EXCEPT IN U.S. PLAINTIFF CASES)
NOTE:
Sarasota Florida
(IN U.S. PLAINTIFF CASES ONLY)
IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
Attorneys (If Known)
(c) Attorneys (Firm Name, Address, and Telephone Number)
Lambert & Associates
Brendan M. Shortell
92 State Street, Boston, MA 02109
II. BASIS OF JURISDICTION (Place an “X” in One Box Only)
’ 1
U.S. Government
Plaintiff
’ 3
Federal Question
(U.S. Government Not a Party)
’ 2
U.S. Government
Defendant
’ 4
Diversity
(Indicate Citizenship of Parties in Item III)
III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only)
PTF
Citizen of This State
’ 1
DEF
’ 1
and One Box for Defendant)
PTF
DEF
Incorporated or Principal Place
’ 4
’ 4
of Business In This State
Citizen of Another State
’ 2
’
2
Incorporated and Principal Place
of Business In Another State
’ 5
’ 5
Citizen or Subject of a
Foreign Country
’ 3
’
3
Foreign Nation
’ 6
’ 6
IV. NATURE OF SUIT (Place an “X” in One Box Only)
CONTRACT
’
’
’
’
’
’
’
’
’
’
’
’
TORTS
110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment
151 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excludes Veterans)
153 Recovery of Overpayment
of Veteran’s Benefits
160 Stockholders’ Suits
190 Other Contract
195 Contract Product Liability
196 Franchise
’
’
’
’
’
’
’
’
’
’
’
’
’
’
’
’
REAL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property
’
’
’
’
’
’
’
PERSONAL INJURY
310 Airplane
315 Airplane Product
Liability
320 Assault, Libel &
Slander
330 Federal Employers’
Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
362 Personal Injury Medical Malpractice
CIVIL RIGHTS
440 Other Civil Rights
441 Voting
442 Employment
443 Housing/
Accommodations
445 Amer. w/Disabilities Employment
446 Amer. w/Disabilities Other
448 Education
FORFEITURE/PENALTY
PERSONAL INJURY
’ 365 Personal Injury Product Liability
’ 367 Health Care/
Pharmaceutical
Personal Injury
Product Liability
’ 368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
’ 370 Other Fraud
’ 371 Truth in Lending
’ 380 Other Personal
Property Damage
’ 385 Property Damage
Product Liability
PRISONER PETITIONS
Habeas Corpus:
’ 463 Alien Detainee
’ 510 Motions to Vacate
Sentence
’ 530 General
’ 535 Death Penalty
Other:
’ 540 Mandamus & Other
’ 550 Civil Rights
’ 555 Prison Condition
’ 560 Civil Detainee Conditions of
Confinement
’ 625 Drug Related Seizure
of Property 21 USC 881
’ 690 Other
BANKRUPTCY
’ 422 Appeal 28 USC 158
’ 423 Withdrawal
28 USC 157
PROPERTY RIGHTS
’ 820 Copyrights
’ 830 Patent
’ 840 Trademark
’
’
’
’
’
’
LABOR
710 Fair Labor Standards
Act
720 Labor/Management
Relations
740 Railway Labor Act
751 Family and Medical
Leave Act
790 Other Labor Litigation
791 Employee Retirement
Income Security Act
’
’
’
’
’
SOCIAL SECURITY
861 HIA (1395ff)
862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(g))
FEDERAL TAX SUITS
’ 870 Taxes (U.S. Plaintiff
or Defendant)
’ 871 IRS—Third Party
26 USC 7609
OTHER STATUTES
’
’
’
’
’
’
’
’
’
’
’
’
’
’
’
’
’
375 False Claims Act
400 State Reapportionment
410 Antitrust
430 Banks and Banking
450 Commerce
460 Deportation
470 Racketeer Influenced and
Corrupt Organizations
480 Consumer Credit
490 Cable/Sat TV
850 Securities/Commodities/
Exchange
890 Other Statutory Actions
891 Agricultural Acts
893 Environmental Matters
895 Freedom of Information
Act
896 Arbitration
899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
950 Constitutionality of
State Statutes
IMMIGRATION
’ 462 Naturalization Application
’ 465 Other Immigration
Actions
V. ORIGIN (Place an “X” in One Box Only)
’ 1 Original
Proceeding
’ 2 Removed from
State Court
’ 3
Remanded from
Appellate Court
’ 4 Reinstated or
Reopened
’ 5 Transferred from
Another District
(specify)
’ 6 Multidistrict
Litigation
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
35 U.S.C. 271
VI. CAUSE OF ACTION Brief description of cause:
Patent Infringement
’ CHECK IF THIS IS A CLASS ACTION
VII. REQUESTED IN
UNDER RULE 23, F.R.Cv.P.
COMPLAINT:
VIII. RELATED CASE(S)
(See instructions):
IF ANY
JUDGE
DATE
CHECK YES only if demanded in complaint:
’ Yes
’ No
JURY DEMAND:
DEMAND $
DOCKET NUMBER
SIGNATURE OF ATTORNEY OF RECORD
/s/ Brendan M. Shortell
02/27/2015
FOR OFFICE USE ONLY
RECEIPT #
AMOUNT
APPLYING IFP
JUDGE
MAG. JUDGE
JS 44 Reverse (Rev. 12/12)
Case 1:15-cv-10597 Document 1-11 Filed 02/27/15 Page 2 of 2
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 of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a)
(b)
(c)
Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
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 the
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 land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in 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 "X"
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 amendment
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 takes
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 diversity
cases.)
III.
Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section 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 below, is
sufficient 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 than
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 filing
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 or
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 1407.
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 jurisdictional
statutes 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 docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
Case 1:15-cv-10597 Document 1-12 Filed 02/27/15 Page 1 of 1
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
1. Title of case (name of first party on each side only) Dune
Jewelry, Inc. v. Rebecca Smith, LLC
2. Category in which the case belongs based upon the numbered nature of suit code listed on the civil cover sheet. (See local
rule 40.1(a)(1)).
I.
410, 441, 470, 535, 830*, 891, 893, 895, R.23, REGARDLESS OF NATURE OF SUIT.
II.
110, 130, 140, 160, 190, 196, 230, 240, 290,320,362, 370, 371, 380, 430, 440, 442, 443, 445, 446, 448, 710, 720,
740, 790, 820*, 840*, 850, 870, 871.
III.
120, 150, 151, 152, 153, 195, 210, 220, 245, 310, 315, 330, 340, 345, 350, 355, 360, 365, 367, 368, 375, 385, 400,
422, 423, 450, 460, 462, 463, 465, 480, 490, 510, 530, 540, 550, 555, 625, 690, 751, 791, 861-865, 890, 896, 899,
950.
*Also complete AO 120 or AO 121. for patent, trademark or copyright cases.
3. Title and number, if any, of related cases. (See local rule 40.1(g)). If more than one prior related case has been filed in this
district please indicate the title and number of the first filed case in this court.
4. Has a prior action between the same parties and based on the same claim ever been filed in this court?
YES
9
NO
9✔
5. Does the complaint in this case question the constitutionality of an act of congress affecting the public interest?
§2403)
YES
9
NO
✔
9
YES
9
NO
✔
9
(See 28 USC
If so, is the U.S.A. or an officer, agent or employee of the U.S. a party?
6. Is this case required to be heard and determined by a district court of three judges pursuant to title 28 USC §2284?
YES
9
NO
✔
9
7. Do all of the parties in this action, excluding governmental agencies of the United States and the Commonwealth of
Massachusetts (“governmental agencies”), residing in Massachusetts reside in the same division? - (See Local Rule 40.1(d)).
YES
A.
9
NO
9✔
If yes, in which division do all of the non-governmental parties reside?
Eastern Division
B.
9
Central Division
9
Western Division
9
If no, in which division do the majority of the plaintiffs or the only parties, excluding governmental agencies,
residing in Massachusetts reside?
Eastern Division
9✔
Central Division
9
Western Division
9
8. If filing a Notice of Removal - are there any motions pending in the state court requiring the attention of this Court? (If yes,
submit a separate sheet identifying the motions)
YES
9
NO
9✔
(PLEASE TYPE OR PRINT)
ATTORNEY'S NAME
ADDRESS
Brendan M. Shortell
Lambert & Associates, 92 State Street, Suite 200, Boston, MA 02109
TELEPHONE NO.
617-720-5822
(CategoryForm9-2014.wpd )
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
DUNE JEWELRY, INC.
Plaintiff,
v.
REBECCA JAMES, LLC,
Defendant.
)
)
)
)
)
)
)
)
)
)
Civil Action No. 1:15-cv-10597
COMPLAINT and Jury Demand
Plaintiff, Dune Jewelry, Inc., (“Dune Jewelry”), by and through its undersigned counsel,
for its Complaint against Rebecca James, LLC, doing business under the fictitious name
Tropicality ("Tropicality”), shows and alleges as follows:
THE PARTIES
1.
Dune Jewelry is a Massachusetts corporation with its principal place of business at
1 Westinghouse Plaza, Building D, Suite 7 Boston, MA 02136.
2.
Upon information and belief, Rebecca James, LLC is a Florida limited liability
company with a principal place of business at 321 Beach Road Sarasota, FL 34243.
3.
Rebecca James, LLC is doing business under the fictitious name Tropicality.
JURISDICTION AND VENUE
4.
This action arises under 35 U.S.C. § 1 et seq. including 35 U.S.C. §§ 271, 281, 283,
284, and 285. Accordingly, this Court has subject matter jurisdiction over this action under 28
U.S.C. §§ 1331 and 1338.
Case 1:15-cv-10597 Document 1 Filed 02/27/15 Page 2 of 9
5.
This Court has subject matter jurisdiction over the claims asserted in this Complaint
pursuant to 28 U.S.C. §§1331 and 1338. This Court also has supplemental jurisdiction over the
pendent state law claims pursuant to 28 U.S.C. §1367(a).
6.
This Court has personal jurisdiction over Tropicality through its purposeful
minimum contacts with Massachusetts, as Tropicality has been engaged in substantial and
continuous business in this Judicial District.
7.
This Court also has personal jurisdiction over Tropicality as Tropicality has
purposefully availed themselves to the Commonwealth by their interactive and commercial
website which has, and continues to, solicit business in the Commonwealth
8.
Venue is proper in this Court pursuant to 28 U.S.C. §§1391and 1400.
FACTUAL BACKGROUND
A.
U.S. Patent No. D705,113 Patent
9.
On October 24, 2013, Dune Jewelry and/or its predecessor in interest filed an
application with the United States Patent and Trademark Office (hereinafter the "USPTO") for a
U.S. Design Patent entitled SAND JEWELRY, to which the USPTO assigned Application No.
29/470,752.
10.
Application No. 29/470,752 ultimately issued as U.S. Patent No. D704,113
(“’D113 Patent”) on May 20, 2014. Exhibit A
11.
The ’D113 Patent claims the ornamental design for sand jewelry.
B.
U.S. Patent No. D704,589 Patent
12.
On October 24, 2013, Dune Jewelry and/or its predecessor in interest filed an
application with the USPTO for a U.S. Design Patent entitled SAND JEWELRY, to which the
USPTO assigned Application No. 29/470,755.
Case 1:15-cv-10597 Document 1 Filed 02/27/15 Page 3 of 9
13.
Application No. 29/470,752 ultimately issued as U.S. Patent No. D704,589
(“’D589 Patent”) on May 13, 2014. Exhibit B
14.
The ’D589 Patent claims the ornamental design for sand jewelry.
C.
Defendant's Infringing Products
15.
Tropicality’s infringing products (hereinafter referred to as “infringing products”)
includes, but are not limited to:
16.
Tropicality’s horizontal bar design (Exhibit C);
Tropicality’s Dainty Silver Sand Bangle (Exhibit D);
Tropicality’s Beach Sand Cuff Bracelet (Exhibit E);
Tropicality’s Beach Sand Macrame Bracelet (Exhibit F);
Tropicality’s Wire Wrapped Sand Bangle (Exhibit G); and,
Tropicality’s Beach Sand Studs (Exhibit H)
Upon information and belief, all of the Tropicality’s infringing products contain
sand and infringe the claims of at least one of Dune Jewelry’s issued patents.
17.
Tropicality manufactures, offers to sell, and sells the infringing products in the
United States without a license to do so.
18.
Tropicality offers for sale the infringing products throughout the United States (e.g.,
Massachusetts) via their website http://tropicality.bigcartel.com/.
19.
Tropicality has sold at least one, if not all, of the infringing products in
Massachusetts.
D.
Sandbar Trademark
20.
Dune Jewelry has been using the mark “Sandbar” in conjunction with the offering
and selling of its jewelry since at least as early as 2010. Exhibit I.
Case 1:15-cv-10597 Document 1 Filed 02/27/15 Page 4 of 9
21.
On January 22, 2015 Dune Jewelry filed an in-use trademark application with the
USPTO for the mark “Sandbar” in international class 14 for Jewelry (“Sandbar Application”). The
Sandbar Application was issued Serial No. 86511361 by the USPTO.
22.
Upon information and belief, Tropicality is currently selling its horizontal silver
bar design necklace under the name “Silver Sandbar.”
E.
Tropicality’s Unfair Trade Practices
23.
Upon information and belief, with respect to Tropicality’s infringing products,
Tropicality does minimal research and development of their own, and simply copy Dune Jewelry’s
patented products.
24.
Tropicality tarnishes Dune Jewelry’s reputation and erodes Dune Jewelry’s ability
to leverage its patents by making misleading statements to potential purchasers of Dune Jewelry’s
patented products and by providing inferior copycat products which tarnishes the sand jewelry
industry.
F.
Plaintiff’s Notice Letter
25.
On June 10, 2014, Plaintiff, upon discovering Tropicality’s use, manufacturing,
advertising and sale of the above identified infringing products, sent a letter to the Defendant to
inform it of Dune Jewlery’s patents and other intellectual property rights, and provided the
Defendant notice of their infringing items. Exhibit J.
26.
Defendant confirmed receipt of the letter, but never responded in substance and
never ceased manufacturing, using, advertising, or selling any of the above alleged infringing
products.
27.
Upon information and belief, Defendant has committed the infringing acts
complained of willfully and with conscious disregard of the Plaintiff’s rights.
Case 1:15-cv-10597 Document 1 Filed 02/27/15 Page 5 of 9
COUNT I
(INFRINGEMENT OF THE ‘D113 PATENT)
28.
Plaintiff repeats and realleges each and every allegation set forth in paragraphs 1-
25 inclusive, and incorporates them herein by reference.
29.
Pursuant to 35 U.S.C. §287, examples of notice include a letter dated June 10, 2014
to the Defendant. Exhibit J.
30.
On information and belief, Tropicality has and continues to, without license from
Dune Jewelry, infringe the ‘D113 patent under 35 U.S.C. §271(a), by manufacturing, using, selling
and/or offering to sell in the United States, and/or importing into the United States one or more of
the infringing products, which embody the design covered by the ’D113 design patent.
31.
On information and belief, Tropicality has and continues to, without license from
Dune Jewelry, induce others (e.g., third party re-sellers) to infringe the ‘D113 patent under 35
U.S.C. §271(b), by using, selling and/or offering to sell in the United States, and/or importing into
the United States one or more of the infringing products, which embody the design covered by the
’D113 design patent, through a network of third party websites and stores who sell directly to
consumers.
32.
As a direct and proximate consequence of the acts and practices of Tropicality,
Dune Jewelry has been, is being and, unless such acts and practices are enjoined by the Court, will
continue to be injured in its business and property rights, and has suffered, is suffering and will
continue to suffer injury and damages for which it is entitled to relief under 35 U.S.C. §284
adequate to compensate for such infringement, but in no case less than a reasonable royalty.
33.
As a direct and proximate consequence of the acts and practices of Tropicality,
Tropicality has also caused, is causing and, unless such acts and practices are enjoined by the
Case 1:15-cv-10597 Document 1 Filed 02/27/15 Page 6 of 9
Court, will continue to cause irreparable harm to Dune Jewelry for which it is entitled to
preliminary and permanent injunctive relief under 35 U.S.C. §283.
34.
Tropicality's acts of infringement are intentional and willful and "exceptional"
pursuant to 35 U.S.C. §285.
COUNT II
(INFRINGEMENT OF THE ‘D589 PATENT)
35.
Plaintiff repeats and realleges each and every allegation set forth in paragraphs 1-
34 inclusive, and incorporates them herein by reference.
36.
Pursuant to 35 U.S.C. §287, examples of notice include a letter dated June 10, 2014
to the Defendant. Exhibit J.
37.
On information and belief, Tropicality has and continues to, without license from
Dune Jewelry, infringe the ‘D589 patent under 35 U.S.C. §271(a), by manufacturing, using, selling
and/or offering to sell in the United States, and/or importing into the United States one or more of
the infringing products, which embody the design covered by the ’D589 design patent.
38.
On information and belief, Tropicality has and continues to, without license from
Dune Jewelry, induce others (e.g., third party re-sellers) to infringe the ‘D589 patent under 35
U.S.C. §271(b), by using, selling and/or offering to sell in the United States, and/or importing into
the United States one or more of the infringing products, which embody the design covered by the
’D589 design patent, through a network of third party websites and stores who sell directly to
consumers.
39.
As a direct and proximate consequence of the acts and practices of Tropicality,
Dune Jewelry has been, is being and, unless such acts and practices are enjoined by the Court, will
continue to be injured in its business and property rights, and has suffered, is suffering and will
Case 1:15-cv-10597 Document 1 Filed 02/27/15 Page 7 of 9
continue to suffer injury and damages for which it is entitled to relief under 35 U.S.C. §284
adequate to compensate for such infringement, but in no case less than a reasonable royalty.
40.
As a direct and proximate consequence of the acts and practices of Tropicality,
Tropicality has also caused, is causing and, unless such acts and practices are enjoined by the
Court, will continue to cause irreparable harm to Dune Jewelry for which it is entitled to
preliminary and permanent injunctive relief under 35 U.S.C. §283.
41.
Tropicality's acts of infringement are intentional and willful and "exceptional"
pursuant to 35 U.S.C. §285.
COUNT III
(UNJUST ENRICHMENT)
42.
Plaintiff repeats and realleges each and every allegation set forth in paragraphs 1-
41 inclusive, and incorporates them herein by reference.
44.
As a result of the conduct of the Tropicality as described above, and unless the relief
sought in this Complaint is granted, Tropicality will unjustly benefit from and be unjustly enriched
by, their own intentional and wrongful acts.
COUNT IV
(Common Law Trademark Infringement)
45.
Plaintiff repeats and realleges each and every allegation set forth in paragraphs 1-
44 inclusive, and incorporates them herein by reference.
46.
Plaintiff has used and has continued to use, without interruption, the Sandbar mark
in connection with the sale of jewelry since at least as early as 2010.
47.
By virtue of its exclusive and continued use of the Sandbar mark, Plaintiff has
acquired the sole and exclusive right to use said mark in connection with jewelry. As a result of
Case 1:15-cv-10597 Document 1 Filed 02/27/15 Page 8 of 9
nationwide, and international, advertising and sales of jewelry in connection with the Sandbar
mark, Plaintiff has gained recognition and good will in the mark for use with the jewelry.
48.
Without the consent of the Plaintiff, Tropicality is offering for sale and selling
jewelry under the name Sandbar.
49.
Tropicality’s use of “Sandbar” in connection with jewelry has caused, and will
continue to cause, a likelihood of confusion, mistake or deception, all to the Plaintiff's irreparable
injury and Tropicality’s unjust enrichment and benefit in violation of Plaintiff's common law
trademark rights and constitute a fraud on the public.
50.
Tropicality’s use of “Sandbar” in connection with jewelry has caused and is likely
to continue to cause members of the public to believe that the Tropicality’s jewelry is offered by
way of the Plaintiff or with the approval, consent and or sponsorship of the Plaintiff.
51.
As the direct and proximate result of Tropicality’s infringement, the Plaintiff has
suffered, and will continue to suffer, monetary loss and irreparable injury to its business,
reputation, and good will warranting an injunction and an award of monetary damages.
JURY DEMAND
Plaintiff demands a trial by jury on all claims so triable.
PRAYER FOR RELIEF
WHEREFORE, as relief, Plaintiff respectfully prays for a judgment against Defendant as
follows:
A.
A judgment that Defendant has infringed one of more claims of each of Dune
Jewelry’s asserted patents;
B.
An order and judgment preliminarily and permanently enjoining Defendant and its
officers, directors, agents, servants, employees, affiliates, attorneys, and all others acting in privity
Case 1:15-cv-10597 Document 1 Filed 02/27/15 Page 9 of 9
or in concert with them, and their parents, subsidiaries, divisions, successors and assigns, from
further acts of infringement of Dune Jewelry’s asserted patents and trademarks;
C.
A judgment awarding Dune Jewelry all damages adequate to compensate for
Defendant’s infringement of Dune Jewelry’s asserted patents, and in no event less than a
reasonable royalty for Defendant’s acts of infringement, including all pre-judgment and postjudgment interest at the maximum rate permitted by law;
D.
A judgment awarding Dune Jewelry all damages, including treble damages, based
on any infringement found to be willful, pursuant to 35 U.S.C. §284, together with prejudgment
interest;
E.
Declaring this to be an "exceptional" case within the meaning of 35 U.S.C. §285,
entitling Dune Jewelry to an award of its reasonable attorney fees, expenses and costs in this action
as well as pre-judgment and post judgment interests;
F.
Grant damages associated with Defendant’s infringing activities be trebled where
allowed by law as a result of Defendant’s actions complained of herein; and,
G.
Dune Jewelry has such other and further relief as this Court may deem just and
equitable.
Dated: February 27, 2015
Respectfully Submitted,
Attorney for Defendant
By: /s/ Brendan M. Shortell
Brendan M. Shortell (BBO# 675851)
Gary E. Lambert (BBO# 548303)
Lambert & Associates
92 State Street
Suite 200
Boston, MA 02109
Telephone: 617.720.0091
Facsimile: 617.720.6307
[email protected]
Case 1:15-cv-10597 Document 1-1 Filed 02/27/15 Page 1 of 2
USOOD705113 S
Exhibit A
(12) United States Design Patent (10) Patent No.:
Daniels Christensen
(54)
SAND JEWELRY
(71) Applicant: Holly Daniels Christensen, Dedham,
MA (US)
8,281,465
2006/0166002
2007/0104928
2010/0166997
2010/0300149
2010/0307671
(72) Inventor: Holly Daniels Christensen, Dedham,
Term:
[Online]
14 Years
(63)
Continuation of application No. 13/245,685, ?led on
Oct. 24, 2013
Related U.S. Application Data
Sep. 26, 2011.
(58)
Yokochi et a1.
Ghisaka et a1.
Seliktar
David
http://data.uncomm0ng00ds.com.edgesuite.net/images/
Sand Jewelry with Appeal!, Kristen, Nov. 9, 2009, pp. 1-3.
Top 5 Resin Tips, Tammy Jones, Dec. 13, 2010, pp. 1-3.
annemadedesigns, Jul. 21, 2009, pp. 1-2.
Uniquie Handcrafted Jewelry, Aug. 23, 2007, pp. 1-3.
Alexandra Mosher, Dec. 18, 2010, pp. 1-2.
Filed:
.............................................. ..
11-01
U.S. Cl.
USPC
5/2007
7/2010
12/2010
12/2010
Andrew Goss, Introduction to Basic Concrete Jewelry, 2004 pp. 1-4.
(22)
LOC (10) Cl.
10/2012 Miraldi
7/2006 Grey et a1.
newweb/product/20800izoom1jpg. Accessed Nov. 26, 2013*
(21) Appl. No.: 29/470,752
(51)
(52)
B1
A1
A1
A1
A1
A1
*1. May 20, 2014
OTHER PUBLICATIONS
MA (US)
(**)
US D705,113 S
(45) Date of Patent:
........................................... .. D11/79; D11/43
Field of Classi?cation Search
* cited by examiner
Primary Examiner * Garth Rademaker
Assistant Examiner * Melanie Pellegrini
(74) Attorney, Agent, or Firm * Lambert & Associates;
Gary E. Lambert; David J. Connaughton, Jr.
USPC ........... .. D11/79i85, 1425, 4047; 63/18, 20,
63/12, 13, 3.1, 3.2, 3, 1.11
See application ?le for complete search history.
(56)
References Cited
(57)
CLAIM
The ornamental design for sand jewelry, as shown and
described.
DESCRIPTION
U.S. PATENT DOCUMENTS
2,943,953 A
3,477,990 A
3,856,644 A
D241,365 S
*
3,997,686 A
D252,561 S
*
*
D306,707 S *
D311,356 S
Durante ....................... .. D11/91
8/1979
Durante ....................... .. D11/61
2/1982 MacFaden
11/1983
Weeks ............... ..
3/1990 Henry De Frahan
*
10/1990
*
*
7/2010
2/2012
6,607,818 B1
D619,919 S
D654,391 S
9/1976
embodies my design;
12/1976 McClure
D263,029 S *
D271,188 S
FIG. 1 is a perspective front view of the sand jewelry, which
7/1960 Daniel
11/1969 Dante et a1.
12/1974 Traenckner et al.
D11/61
D11/61
D11/75
De Frahan ................... .. D11/79
8/2003 SatZ et a1.
Harding ....................... .. D11/80
Minkkinen et a1. .......... .. D11/40
FIG. 2 is a front elevation view of the sand jewelry;
FIG. 3 is a rear elevation view of the sand jewelry;
FIG. 4 is a side view of the sand jewelry;
FIG. 5 is a bottom view of the sand jewelry; and,
FIG. 6 is a top view of the sand jewelry.
The portion of the drawings in broken lines forms no part of
the claimed design.
1 Claim, 1 Drawing Sheet
Case 1:15-cv-10597 Document 1-1 Filed 02/27/15 Page 2 of 2
US. Patent
May 20, 2014
ig. 2
Fig. 4
Fig. 6
US D705,113 S
Fig. 3
Case 1:15-cv-10597 Document 1-2 Filed 02/27/15 Page 1 of 2
USOOD704589S
Exhibit B
(12) United States Design Patent (10) Patent No.:
Daniels Christensen
(54)
(45) Date of Patent:
SAND JEWELRY
(71) Applicant: Holly Daniels Christensen, Dedham,
2010/0166997 A1
2010/0300149 A1
2010/0307671 A1
MA (US)
(**)
Filed:
14 Years
circleicharm,512968295. Accessed Nov. 26, 2013*
[Online] http://wwwcafepress.c0m/+threeipawisandinecklacei
[Online] http://j.horloger-paris.com/23607-34337-h0me/ch0pard
pendant-happy-diamonds-795759-1003jpg. Accessed Nov. 26,
2013*
Andrew Goss, Introduction to Basic Concrete Jewelry, 2004 pp. 1-4.
Oct. 24, 2013
(63)
Continuation of application No. 13/245,685, ?led on
(51)
(52)
LOC (10) Cl.
Sep. 26, 2011.
(58)
http://data.uncomm0ng00ds.com.edgesuite.net/images/
newweb/product/20800izooml .jpg. Accessed Nov. 26, 2013*
Related U.S. Application Data
11-01
............................................. .. D11/79; D11/7
Field of Classi?cation Search
USPC ........... .. D11/79i85, 1425, 40417; 63/18, 20,
63/12, 13, 3.1, 3.2, 3, 1.11
See application ?le for complete search history.
(56)
Sand Jewelry with Appeal!, Kristen, Nov. 9, 2009, pp. 1-3
Top 5 Resin Tips, Tammy Jones, Dec. 13, 2010, pp. 1-3
Annemadedesigns, Jul. 21, 2009, pp. 1-2.
Uniquie Handcrafted Jewelry, Aug. 23, 2007, pp. 1-3
Alexandra Mosher, Dec. 18, 2010, pp. 1-2.
* cited by examiner
.............................................. ..
U.S. Cl.
USPC
[Online]
MA (US)
(21) Appl. No.: 29/470,755
(22)
7/2010 Chisaka et a1.
12/2010 Seliktar
12/2010 David
OTHER PUBLICATIONS
(72) Inventor: Holly Daniels Christensen, Dedham,
Term:
US D704,589 S
*1. May 13, 2014
Primary Examiner * Garth Rademaker
Assistant Examiner * Melanie Pellegrini
(74) Attorney, Agent, or Firm * Lambert & Associates;
Gary E. Lambert; David J. Connaughton, Jr.
(57)
CLAIM
The ornamental design for sand jewelry, as shown and
described.
References Cited
DESCRIPTION
U.S. PATENT DOCUMENTS
FIG. 1 is a front perspective view of sand jewelry showing my
D38,476 S
2,943,953
3,477,990
3,856,644
3,997,686
*
A
A
A
A
D311,504 S
*
6,607,818 B1
D583,698 S
D619,492 S
8,281,465 B1
2006/0166002 A1
2007/0104928 A1
3/1907
Arnold ......................... .. D11/79
7/1960
11/1969
12/1974
12/1976
Daniel
Dante et a1.
Traenckner et a1.
McClure
10/1990
De Frahan ................... .. D11/79
8/2003 SatZ et a1.
*
*
12/2008 Botten?eld et a1. ......... .. D11/79
7/2010 Wallace ....................... .. D11/82
10/2012 Miraldi
7/2006 Grey et a1.
5/2007 Yokochiet a1.
new design;
FIG. 2 is a front elevation view of the sand jewelry;
FIG. 3 is a rear elevation view of the sand jewelry;
FIG. 4 is a bottom view ofthe sandjewelry;
FIG. 5 is a top view of the sand jewelry; and,
FIG. 6 is a side view of the sand jewelry.
The portion of the drawings in broken lines forms no part of
the claimed design.
1 Claim, 1 Drawing Sheet
Case 1:15-cv-10597 Document 1-2 Filed 02/27/15 Page 2 of 2
U S. Patent
M y 13, 2014
US D704,589 S
Fig, 4
"ig, 6
Pig. 5
Case 1:15-cv-10597 Document 1-3 Filed 02/27/15 Page 1 ofExhibit
1
C
Case 1:15-cv-10597 Document 1-4 Filed 02/27/15 Page 1 of 1
Exhibit D
Case 1:15-cv-10597 Document 1-5 Filed 02/27/15 Page 1 of 1
Exhibit E
Case 1:15-cv-10597 Document 1-6 Filed 02/27/15 Page 1 of 1
Exhibit F
Case 1:15-cv-10597 Document 1-7 Filed 02/27/15 Page 1 of 1
Exhibit G
Case 1:15-cv-10597 Document 1-8 Filed 02/27/15 Page 1 of
1
Exhibit
H
2/27/2015
Sandbar Necklace Necklaces Jewelry
Case 1:15-cv-10597 Document
1-9 Filed 02/27/15 Page 1Exhibit
of 2
MEN U
I
e Original Beach Sand Jewelry Co. ™
HOME / JEWELRY / NECKLACES / SANDBAR NECKLACE
Sandbar
Necklace
The Sandbar™. A perfect play on words accompanies this
statementmaking necklace. A sterling silver, 1.75”x.25” bezel
is filled with your choice of beach sand, then hand sanded and
polished to the final matte finish. Available with 16", 18" or 20"
silver chain or black cord.
SKU: SBAR_N
$154.00
Select your sand:
S E LECT A SA ND
PROVIDE YOUR OWN SAND
TYPE *
CHOOSE AN OPTION...
SIZE *
CHOOSE AN OPTION...
QTY:
https://dunejewelry.com/jewelry/necklaces/sandbarnecklace
1
ADD TO CART
1/2
2/27/2015
Sandbar Necklace Necklaces Jewelry
Case 1:15-cv-10597 Document
1-9 Filed 02/27/15 Page 2 of 2
ADD TO CART
ADD TO WISHLIST
Fine
RETURN PO
LICY
WARRANTY
& REPAIR
PRIVACY P
OLICY
Stay in the
Loop
Send Us Your
Sand
Sign up for all the latest
news & special offers from
Dune Jewelry
Detailed instructions on
how to send us your sand
S E E DE TA ILS
EMAIL ADDRESS
GO
BECOME A
DEALER
© 2015 DUNE JEWELRY. ALL RIGHTS RESERVED U.S. PATENT NO. D705,113 D704,589 & OTHER PATENTS PENDING
DESIGNED BY TOOL STUDIOS
https://dunejewelry.com/jewelry/necklaces/sandbarnecklace
2/2
Case 1:15-cv-10597 Document 1-10 Filed 02/27/15 Page 1 of 1
Exhibit J
Case 1:15-cv-10597 Document 1-11 Filed 02/27/15 Page 1 of 2
JS 44 (Rev. 12/12)
CIVIL COVER SHEET
The 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 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. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS
DEFENDANTS
Dune Jewelry, Inc.
Rebecca James, LLC
(b) County of Residence of First Listed Plaintiff
County of Residence of First Listed Defendant
Suffolk
(EXCEPT IN U.S. PLAINTIFF CASES)
NOTE:
Sarasota Florida
(IN U.S. PLAINTIFF CASES ONLY)
IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
Attorneys (If Known)
(c) Attorneys (Firm Name, Address, and Telephone Number)
Lambert & Associates
Brendan M. Shortell
92 State Street, Boston, MA 02109
II. BASIS OF JURISDICTION (Place an “X” in One Box Only)
’ 1
U.S. Government
Plaintiff
’ 3
Federal Question
(U.S. Government Not a Party)
’ 2
U.S. Government
Defendant
’ 4
Diversity
(Indicate Citizenship of Parties in Item III)
III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only)
PTF
Citizen of This State
’ 1
DEF
’ 1
and One Box for Defendant)
PTF
DEF
Incorporated or Principal Place
’ 4
’ 4
of Business In This State
Citizen of Another State
’ 2
’
2
Incorporated and Principal Place
of Business In Another State
’ 5
’ 5
Citizen or Subject of a
Foreign Country
’ 3
’
3
Foreign Nation
’ 6
’ 6
IV. NATURE OF SUIT (Place an “X” in One Box Only)
CONTRACT
’
’
’
’
’
’
’
’
’
’
’
’
TORTS
110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment
151 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excludes Veterans)
153 Recovery of Overpayment
of Veteran’s Benefits
160 Stockholders’ Suits
190 Other Contract
195 Contract Product Liability
196 Franchise
’
’
’
’
’
’
’
’
’
’
’
’
’
’
’
’
REAL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property
’
’
’
’
’
’
’
PERSONAL INJURY
310 Airplane
315 Airplane Product
Liability
320 Assault, Libel &
Slander
330 Federal Employers’
Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
362 Personal Injury Medical Malpractice
CIVIL RIGHTS
440 Other Civil Rights
441 Voting
442 Employment
443 Housing/
Accommodations
445 Amer. w/Disabilities Employment
446 Amer. w/Disabilities Other
448 Education
FORFEITURE/PENALTY
PERSONAL INJURY
’ 365 Personal Injury Product Liability
’ 367 Health Care/
Pharmaceutical
Personal Injury
Product Liability
’ 368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
’ 370 Other Fraud
’ 371 Truth in Lending
’ 380 Other Personal
Property Damage
’ 385 Property Damage
Product Liability
PRISONER PETITIONS
Habeas Corpus:
’ 463 Alien Detainee
’ 510 Motions to Vacate
Sentence
’ 530 General
’ 535 Death Penalty
Other:
’ 540 Mandamus & Other
’ 550 Civil Rights
’ 555 Prison Condition
’ 560 Civil Detainee Conditions of
Confinement
’ 625 Drug Related Seizure
of Property 21 USC 881
’ 690 Other
BANKRUPTCY
’ 422 Appeal 28 USC 158
’ 423 Withdrawal
28 USC 157
PROPERTY RIGHTS
’ 820 Copyrights
’ 830 Patent
’ 840 Trademark
’
’
’
’
’
’
LABOR
710 Fair Labor Standards
Act
720 Labor/Management
Relations
740 Railway Labor Act
751 Family and Medical
Leave Act
790 Other Labor Litigation
791 Employee Retirement
Income Security Act
’
’
’
’
’
SOCIAL SECURITY
861 HIA (1395ff)
862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(g))
FEDERAL TAX SUITS
’ 870 Taxes (U.S. Plaintiff
or Defendant)
’ 871 IRS—Third Party
26 USC 7609
OTHER STATUTES
’
’
’
’
’
’
’
’
’
’
’
’
’
’
’
’
’
375 False Claims Act
400 State Reapportionment
410 Antitrust
430 Banks and Banking
450 Commerce
460 Deportation
470 Racketeer Influenced and
Corrupt Organizations
480 Consumer Credit
490 Cable/Sat TV
850 Securities/Commodities/
Exchange
890 Other Statutory Actions
891 Agricultural Acts
893 Environmental Matters
895 Freedom of Information
Act
896 Arbitration
899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
950 Constitutionality of
State Statutes
IMMIGRATION
’ 462 Naturalization Application
’ 465 Other Immigration
Actions
V. ORIGIN (Place an “X” in One Box Only)
’ 1 Original
Proceeding
’ 2 Removed from
State Court
’ 3
Remanded from
Appellate Court
’ 4 Reinstated or
Reopened
’ 5 Transferred from
Another District
(specify)
’ 6 Multidistrict
Litigation
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
35 U.S.C. 271
VI. CAUSE OF ACTION Brief description of cause:
Patent Infringement
’ CHECK IF THIS IS A CLASS ACTION
VII. REQUESTED IN
UNDER RULE 23, F.R.Cv.P.
COMPLAINT:
VIII. RELATED CASE(S)
(See instructions):
IF ANY
JUDGE
DATE
CHECK YES only if demanded in complaint:
’ Yes
’ No
JURY DEMAND:
DEMAND $
DOCKET NUMBER
SIGNATURE OF ATTORNEY OF RECORD
/s/ Brendan M. Shortell
02/27/2015
FOR OFFICE USE ONLY
RECEIPT #
AMOUNT
APPLYING IFP
JUDGE
MAG. JUDGE
JS 44 Reverse (Rev. 12/12)
Case 1:15-cv-10597 Document 1-11 Filed 02/27/15 Page 2 of 2
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 of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a)
(b)
(c)
Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
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 the
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 land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in 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 "X"
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 amendment
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 takes
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 diversity
cases.)
III.
Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section 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 below, is
sufficient 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 than
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 filing
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 or
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 1407.
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 jurisdictional
statutes 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 docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
Case 1:15-cv-10597 Document 1-12 Filed 02/27/15 Page 1 of 1
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
1. Title of case (name of first party on each side only) Dune
Jewelry, Inc. v. Rebecca Smith, LLC
2. Category in which the case belongs based upon the numbered nature of suit code listed on the civil cover sheet. (See local
rule 40.1(a)(1)).
I.
410, 441, 470, 535, 830*, 891, 893, 895, R.23, REGARDLESS OF NATURE OF SUIT.
II.
110, 130, 140, 160, 190, 196, 230, 240, 290,320,362, 370, 371, 380, 430, 440, 442, 443, 445, 446, 448, 710, 720,
740, 790, 820*, 840*, 850, 870, 871.
III.
120, 150, 151, 152, 153, 195, 210, 220, 245, 310, 315, 330, 340, 345, 350, 355, 360, 365, 367, 368, 375, 385, 400,
422, 423, 450, 460, 462, 463, 465, 480, 490, 510, 530, 540, 550, 555, 625, 690, 751, 791, 861-865, 890, 896, 899,
950.
*Also complete AO 120 or AO 121. for patent, trademark or copyright cases.
3. Title and number, if any, of related cases. (See local rule 40.1(g)). If more than one prior related case has been filed in this
district please indicate the title and number of the first filed case in this court.
4. Has a prior action between the same parties and based on the same claim ever been filed in this court?
YES
9
NO
9✔
5. Does the complaint in this case question the constitutionality of an act of congress affecting the public interest?
§2403)
YES
9
NO
✔
9
YES
9
NO
✔
9
(See 28 USC
If so, is the U.S.A. or an officer, agent or employee of the U.S. a party?
6. Is this case required to be heard and determined by a district court of three judges pursuant to title 28 USC §2284?
YES
9
NO
✔
9
7. Do all of the parties in this action, excluding governmental agencies of the United States and the Commonwealth of
Massachusetts (“governmental agencies”), residing in Massachusetts reside in the same division? - (See Local Rule 40.1(d)).
YES
A.
9
NO
9✔
If yes, in which division do all of the non-governmental parties reside?
Eastern Division
B.
9
Central Division
9
Western Division
9
If no, in which division do the majority of the plaintiffs or the only parties, excluding governmental agencies,
residing in Massachusetts reside?
Eastern Division
9✔
Central Division
9
Western Division
9
8. If filing a Notice of Removal - are there any motions pending in the state court requiring the attention of this Court? (If yes,
submit a separate sheet identifying the motions)
YES
9
NO
9✔
(PLEASE TYPE OR PRINT)
ATTORNEY'S NAME
ADDRESS
Brendan M. Shortell
Lambert & Associates, 92 State Street, Suite 200, Boston, MA 02109
TELEPHONE NO.
617-720-5822
(CategoryForm9-2014.wpd )
