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BDI v. Big Lots - Complaint

BDI v. Big Lots - Complaint

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Published by slburstein
BDI v. Big Lots - Complaint
BDI v. Big Lots - Complaint

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Published by: slburstein on Dec 01, 2013
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12/01/2013

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION
 BUYER’S DIRECT INC., ) ) Plaintiff, ) ) v. ) Case No. ) BIG LOTS STORES, INC., ) Plaintiff Demands Trial by Jury ) Defendant. ) )
COMPLAINT
Plaintiff Buyer’s Direct Inc. (“BDI”) brings this action against Big Lots Stores, Inc. (“Big Lots” or “Defendant”) for infringing BDI’s design patent and misappropriating snoozies!
®
 trade dress, causing consumer confusion, and engaging in unfair competition. Because Defendant sold or offered for sale products infringing BDI’s patent, copied its trade dress, confused consumers and engaged in unfair competition (and continues to do so), BDI seeks damages, an accounting, the imposition of a constructive trust upon Defendant’s illegal profits and injunctive relief.
 THE PARTIES
1.
 
BDI is a North Carolina corporation with its principal place of business in Wilson, North Carolina. 2.
 
Big Lots is an Ohio corporation with its principal place of business and principal office at 300 Phillipi Road, Columbus, Ohio 43228-5311, and may be served with process through its registered agent, Corporation Service Company, 327 Hillsborough St., Raleigh, NC 27603.
5:13-cv-818
 
Case 5:13-cv-00818-FL Document 1 Filed 11/26/13 Page 1 of 11
 
2
JURISDICTION AND VENUE
3.
 
This is an action for design patent infringement under 35 U.S.C. § 271, trade dress infringement and unfair competition under § 43(a) of the Trademark Act of 1946, as amended (the “Lanham Act”), and unfair competition under North Carolina statutory and common law. 4.
 
This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1338, and 15 U.S.C. § 1121. Because the state law claims are so related to BDI’s claims under federal law that they form part of the same case or controversy and derive from a common nucleus of operational facts, this Court has supplemental  jurisdiction over BDI’s claims based on state law pursuant to 28 U.S.C. § 1367(a). 5.
 
This Court has personal jurisdiction over Big Lots because it (a) has sold infringing  products and committed unfair competition in the state of North Carolina, within the Eastern District of North Carolina; (b) has purposefully directed its activities toward the state of North Carolina; and (c) has established systematic and continuous contacts with the state of North Carolina, including maintaining retail stores in the Eastern District of  North Carolina. 6.
 
Venue is proper in this District pursuant to 28 U.S.C. §§ 1391 and 1400 because Big Lots has sold and offered to sell infringing products in this District, and Big Lots has a sufficient connection with the Eastern District of North Carolina to make venue proper in this District, all as alleged in this Complaint.
BACKGROUND
7.
 
BDI is a supplier of retail products, including the patented foot-covering known as “snoozies!
®
” in the United States and in particular, North Carolina. BDI has achieved
Case 5:13-cv-00818-FL Document 1 Filed 11/26/13 Page 2 of 11
 
3 market success for snoozies!
®
 because of the distinctive and unique design of the snoozies!
®
 product. 8.
 
Since the fall of 2008, snoozies!
®
 have been offered for sale in many retail outlets and specialty retailers throughout North Carolina and in a number of different states. 9.
 
BDI has promoted and advertised snoozies!
®
 products in various trade publications and at trade shows that publicize and promote the sale of such retail soft goods. 10.
 
On August 18, 2009, United States Design Patent No. D598,183 (the “’183 Patent”), directed to the ornamental appearance of a slipper, was duly and legally issued by the United States Patent and Trademark Office. A copy of the ’183 Patent is attached as Exhibit A. 11.
 
On December 22, 2009, Marshall P. Bank, the sole inventor of the ’183 Patent, assigned all rights in the ’183 Patent to BDI. Since that date, BDI has been, and still is, the owner of the ’183 Patent. 12.
 
BDI is the exclusive authorized manufacturer and distributor of products embodying the design of the ’183 Patent in the retail market in the United States.
BDI’S CONTACT WITH BIG LOTS AND BIG LOTS’ INFRINGEMENT
 13.
 
In June of 2013, Big Lots contacted BDI and inquired about selling snoozies!
®
 in Big Lots stores. BDI declined to enter into any contract with Big Lots or otherwise authorize the sale of snoozies!
®
 in Big Lots stores. 14.
 
Between June of 2013 and October of 2013, BDI did not have any additional communication with Big Lots.
Case 5:13-cv-00818-FL Document 1 Filed 11/26/13 Page 3 of 11

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