Elite Dogstands v. For The Earth - Complaint

1
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

Elite Dogstands, Ltd., )
)
)
Plaintiff, ) CIVIL ACTION FILE NO.
v. )
)
For The Earth Corporation, ) JURY TRIAL DEMANDED
BJs Wholesale Club, Inc., )
)
Defendants. )

COMPLAINT
COMES NOW Plaintiff, Elite Dogstands Ltd. (Elite), and for its
Complaint against Defendant, For The Earth Corporation (FTEC), and
Defendant BJs Wholesale Club, Inc. (BJs), states the following:
THE PARTIES
1. Elite is a limited liability corporation organized under the laws of the
United Kingdom, with its principal place of business at 10 Marigold Place, Harlow,
Essex CM17 0BW, United Kingdom, in Harlow, United Kingdom.
2. Upon information and belief, Defendant FTEC is a corporation
organized under the laws of the State of Delaware, with its principal place of
Case 1:13-cv-00573-JEC Document 1 Filed 02/21/13 Page 1 of 24
2

business in Phoenix, Arizona. Defendant can be served through its registered
agent Wesley S. Loy, at 1122 E. Jefferson Street, Phoenix, Arizona 85034.
3. Upon information and belief, Defendant BJs is a corporation
organized under the laws of the State of Delaware, with its principal place of
business at 25 Research Drive, Westborough, MA 01581. Defendant can be served
through its registered agent The Corporation Trust Company, Corporation Trust
Center, 1209 Orange Street, Wilmington, DE 19801.

JURISDICTION AND VENUE
4. This is an action against Defendants FTEC and BJs for patent,
trademark and trade name infringement, unfair competition, injury to business
reputation, and trademark and trade name dilution arising under the Patent Laws of
the United States, specifically 35 U.S.C. 271 and 35 U.S.C. 281, the Federal
Trademark Act of 1946, 60 Stat. 427, 15 U.S.C. 1051 et seq., the common law, and
the statutes of the State of Georgia.
5. This Court has subject matter jurisdiction over this action pursuant to
28 U.S.C. 1331 as it involves a federal question: United States Patent Laws, 28
U.S.C. 1338 as it involves federal patent and trademark law and a claim of unfair
competition joined with a substantial and related claim under the patent or
trademark laws; and 28 U.S.C. 1332 as the action is between citizens of different
3

States, and the amount in controversy in this action, exclusive of interest and costs,
exceeds the sum of $75,000.00.
6. This Court has personal jurisdiction over FTEC by reason of the
business that FTEC has transacted and continues to transact in this judicial district
and division, and has sufficient minimum contacts with this judicial district and
division. In particular, FTEC has made and continues to make, has offered to sell
and continues to offer to sell, has sold and continues to sell, has used and continues
to use, and/or has imported and continues to import products that infringe valid and
enforceable claims of Elites patent, trademark, and trade name rights.
7. In addition, this Court has personal jurisdiction over FTEC because it
has knowingly and actively engaged in acts that have infringed, will infringe, aided
and abetted and/or will aid and abet in the direct infringement of claims of Elites
patent, trademark and trade name rights, in this judicial district and division.
8. This Court has personal jurisdiction over BJs by reason of the
business that BJs has transacted and continues to transact in this judicial district
and division, and has sufficient minimum contacts with this judicial district and
division. In particular, BJs has made and continues to make, has offered to sell
and continues to offer to sell, has sold and continues to sell, has used and continues
4

to use, and/or has imported and continues to import products that infringe valid and
enforceable claims of Elites patent, trademark, and trade name rights.
9. In addition, this Court has personal jurisdiction over BJs because it
has knowingly and actively engaged in acts that have infringed, will infringe, aided
and abetted and/or will aid and abet in the direct infringement of claims of Elites
patent, trademark and trade name rights, in this judicial district and division.
10. Venue is proper in this district and division pursuant to 28 U.S.C.
1391, 28 U.S.C. 1400, and Local Rule 3.1 B.
THE CONTROVERSY
11. Elite has been and continues to be engaged in the business of
designing, developing, manufacturing, and selling pet products, including in
particular a novel and distinctive bone-shaped pet bowl.
12. On September 7, 2010, the United States Patent and Trademark Office
duly and lawfully issued U.S. Patent No. D623,362 (the 362 Patent) to inventor
Hang Lam Man for the invention entitled Pet Stand. (See Exhibit A, Plaintiffs
U.S. Patent No. D623,362).
13. The 362 Patent discloses and claims, inter alia, a novel and
ornamental bone-shaped pet bowl.
5

14. The 362 Patent is currently in full force and effect. In accordance
with 35 U.S.C. 282, the 362 Patent, and its claim thereof, is presumed to be
valid.
15. All rights, title and interest in and to the 362 Patent have been
assigned to Elite, which is the sole owner of the 362 Patent.
16. Since at least as early as 2010, Elite has offered and continues to offer
bone-shaped pet bowls (hereinafter also Elites Goods) under its trademarks and
trade names HING and HING DESIGNS. An exemplary photograph of Elites
bone-shaped pet bowl as made and sold is presented below.

17. Since at least as early as 2011, Elite has continuously offered and sold
its bone-shaped pet bowl in commerce in the United States.
18. Since Elite began promoting, offering for sale and selling its bone-
shaped pet bowl in commerce in the United States, Elite has continuously
promoted, offered for sale and sold Elites Goods to the public under its HING and
HING DESIGNS trademarks and trade names, and such trademarks and trade
6

names have become associated with Elite, and have become an asset of substantial
value as a symbol of Elite, its quality products and services and its goodwill.
19. Elite has extensively advertised its bone-shaped pet bowl using its
HING and HING DESIGNS trademarks and trade names, and in its operations
adhere to high standards of quality. Because of the high degree of interstate
mobility of Elites Goods its HING and HING DESIGNS trademarks and trade
names have become distinctive and recognized by members of the public as
symbols of Elite, its quality services, and its goodwill.
20. In about February 2012, Elite had discussions with Defendant FTECs
predecessor, Prestige Pet Products, Inc. (Prestige Pet Products), about the
possibility of Prestige Pet Products serving to distribute and sell Elites bone-
shaped pet bowl in the United States. As part of the discussions Elite provided
Prestige Pet Products with information concerning Elites products, including a
copy of its 362 patent and a limited number of Elites bone-shaped pet bowls. As
a result of the discussions Prestige Pet Products was also made aware of Elites
trademarks and trade names HING and HING DESIGNS.
21. The discussions between Elite and Prestige Pet Products ended
without reaching an agreement concerning Prestige Pet Products serving to
distribute and sell Elites bone-shaped dog bowl. Accordingly, Elite has not
7

authorized Prestige Pet Products to make, have made, distribute offer for sale or
sell the bone-shaped pet bowl of Elites 362 patent and has not authorized Prestige
Pet Products to make any use of Elites trademarks and trade names.
22. On information and belief, in spite of the failure of Elite and Prestige
Pet Products to reach an agreement and Prestige Pet Products failure to obtain
authorization from Elite, Prestige Pet Products proceeded to make, have made,
promote, distribute, offer to sell, sell and/or import bone-shaped pet bowls (the
Accused Products) that are substantially similar to, if not identical to, Elites
patented bone shaped pet bowl and that infringe the invention claimed in the 362
Patent. (See Exhibit B, copies of pages from Defendant FTECs web site showing
one of the Accused Products. See also, Exhibit C, photographs of Defendant
FTECs Accused Products.)
23. On information and belief, in about August 2012 Defendant FTEC
purchased Prestige Pet Products and since then has continued to make, have made
for it, sell, offer for sale and/or import the Accused Products in blatant disregard of
Elites rights.
24. On information and belief, with the 362 Patent in full force and
effect, and with full knowledge of Elites patent, trademark and trade name rights,
Defendant FTEC has continued to make, have made for it, use, sell, offer for sale
8

and/or import the Accused Products in blatant disregard of Elites rights. For
example, on information and belief, Defendant FTEC has sold the Accused
Products to and through Defendant BJs in the Atlanta, Georgia metropolitan area.
Exhibit C includes photographs providing a true and accurate depiction of a
display of Defendant Elites Accused Products in a BJs wholesale club store in the
Atlanta, Georgia area in February 2013, the Accused Products exemplified by the
photograph below of one of said Accused Products from said display.

25. Indeed, Defendants infringing acts, including the introduction,
promotion, and sale of products covered by Elites 362 patent under and in
association with Elites trademarks and trade names, has occurred with Defendant
FTEC knowing it had not obtained any rights or authorization from Elite to make,
have made for it, use, import, offer to sell, or sell the Accused Products, let alone
under or in association with Elites trademarks and trade names.
9

26. Defendant FTEC has been notified of its infringement of Elites 362
Patent pursuant to 35 U.S.C. 287 and of its infringement of Elites 362 Patent
and trademarks and trade names by letter sent directly to Mr. Nelson Grist,
Defendants CEO, on February 13, 2013.
27. Further, on information and belief, in spite of the failure of Elite and
Defendant FTEC to reach agreement and Defendant FTEC to obtain authorization
from Elite, and well after Elite adopted and began use of its HING and HING
DESIGNS trademarks and trade names, Defendants FTEC and BJs have also
proceeded to promote, distribute, offer for sale and/or sell the substantially similar,
competing Accused Products under or in association with Elites distinctive HING
and HING DESIGNS trademarks and trade names.
28. Defendants FTECs and BJs infringement of Elites aforementioned
distinctive trademarks and trade names, and other distinctive features is without the
consent, sponsorship, or authorization of, or affiliation with Elite.
29. On information and belief, Elite avers that Defendant FTECs and
BJs activities, as above-described, are part of a conspiracy and scheme to infringe
Elites distinctive trademarks and trade names, and to appropriate the goodwill and
reputation of Elite by promoting, offering to sell and selling the Accused Products
10

utilizing the confusingly similar HING and HING DESIGNS trademarks and trade
names.
30. On information and belief, Defendants FTEC and BJs are promoting,
distributing, offering to sell and/or selling the Accused Products throughout the
United States and the State of Georgia.
31. On information and belief Defendants FTECs and BJs infringing
conduct has continued in spite of it having been notified of Elites rights and of its
infringement.

11

COUNT ONE
PATENT INFRINGEMENT-U.S. PATENT NO. D623,362

32. Elite hereby incorporates and realleges paragraphs 1 through 31 as if
fully set forth herein.
33. On information and belief, Defendant FTEC has made, used, offered
for sale, distributed, sold and/or imported into the United States bone-shaped pet
bowls, including, but not limited to the Accused Products, that are substantially
similar to and that infringe the 362 Patent.
34. On information and belief, Defendant FTEC, with knowledge of the
362 Patent, has induced Defendant BJs to make, use, offer for sale, distribute,
sell, and/or import into the United States bone-shaped pet bowls, including, but not
limited to the Accused Products, that are substantially similar to and that infringe
the 362 Patent.
35. On information and belief, Defendant FTEC has caused and will
continue to cause Elite irreparable injury and damage by directly infringing,
actively inducing others to infringe, and/or contributing to infringement of the 362
Patent. Elite will suffer further irreparably injury, for which Elite has no adequate
remedy at law, unless and until Defendant FTEC is enjoined from infringing the
362 Patent.
12

36. On information and belief, Defendant FTECs infringement
constitutes willful and intentional infringement making this an exceptional case
and justifying the imposition of treble damages and an award of reasonable
attorneys fees to Elite within the provisions of 35 U.S.C. 284-85.
37. By reason of the acts of Defendant FTEC alleged herein, Elite has
suffered, is suffering and will continue to suffer irreparable damage, and unless
Defendant FTEC is restrained from continuing its wrongful acts, the damage to
Elite will increase.
38. On information and belief, Defendant BJs has made, used, offered for
sale, distributed, sold and/or imported into the United States bone-shaped pet
bowls, including, but not limited to the Accused Products, that are substantially
similar to and that infringe the 362 Patent.
39. On information and belief, Defendant BJs has caused and will
continue to cause Elite irreparable injury and damage by directly infringing,
actively inducing others to infringe, and/or contributing to infringement of the 362
Patent. Elite will suffer further irreparably injury, for which Elite has no adequate
remedy at law, unless and until Defendant BJs is enjoined from infringing the
362 Patent.
13

40. On information and belief, Defendant BJs infringement constitutes
willful and intentional infringement making this an exceptional case and justifying
the imposition of treble damages and an award of reasonable attorneys fees to
Elite within the provisions of 35 U.S.C. 284-85.
41. By reason of the acts of Defendant BJs alleged herein, Elite has
suffered, is suffering and will continue to suffer irreparable damage, and unless
Defendant BJs is restrained from continuing its wrongful acts, the damage to Elite
will increase.

COUNT TWO
FEDERAL UNFAIR COMPETITION

42. Paragraph 1 through 41 are realleged and incorporated herein by
reference.
43. On information and belief, Defendant FTEC has affixed, applied or
annexed or used in connection with its Accused Products a false designation of
origin, or a false representation or description, including using the names and
marks HING and HING DESIGNS, tending falsely to describe or represent the
same as Defendant FTECs goods or as made by, sponsored by or affiliated with
Elite, and has caused, with knowledge of the falsity of such designation of origin
or description or representation, such services to be offered or used in commerce.
14

44. On information and belief, Defendant FTEC has willfully promoted in
commerce the sale of its goods using reproductions of Elites HING and HING
DESIGNS trademarks, in such a manner so as to falsely designate an origin or an
association with Elites trademarks, and with Elites goods, and so as to cause
confusion or mistake among purchasers as to the true origin, source, sponsorship or
affiliation of Defendant FTECs goods, all to Defendant FTECs profit and Elites
great and damage.
45. Elite has been irreparably damaged by the use of such false
description or representation.
46. Defendant FTECs acts, as set forth above, constitute a willful
violation of Section 43(a) of the Trademark Act of 1946 [15 U.S.C. 1125(a)].
47. On information and belief, Defendant BJs has affixed, applied or
annexed or used in connection with its Accused Products a false designation of
origin, or a false representation or description, including using the names and
marks HING and HING DESIGNS, tending falsely to describe or represent the
same as Defendant BJs and/or FTECs goods or as made by, sponsored by or
affiliated with Elite, and has caused, with knowledge of the falsity of such
designation of origin or description or representation, such services to be offered or
used in commerce.
15

48. On information and belief, Defendant BJs has willfully promoted in
commerce the sale of its goods using reproductions of Elites HING and HING
DESIGNS trademarks, in such a manner so as to falsely designate an origin or an
association with Elites trademarks, and with Elites goods, and so as to cause
confusion or mistake among purchasers as to the true origin, source, sponsorship or
affiliation of Defendant BJs goods, all to Defendant BJs profit and Elites great
and damage.
49. Elite has been irreparably damaged by the use of such false
description or representation.
50. Defendant BJs acts, as set forth above, constitute a willful violation
of Section 43(a) of the Trademark Act of 1946 [15 U.S.C. 1125(a)].

COUNT THREE
COMMON LAW TRADE NAME AND SERVICE MARK
INFRINGEMENT AND COMMON LAW UNFAIR COMPETITION

51. Paragraphs 1 through 50 are realleged and incorporated herein by
reference.
52. Through Elites extensive and continuous use of the names and marks
HING and HING DESIGNS, the names and marks HING and HING DESIGNS
16

have each become distinctive of Elites goods and are associated by the public with
Elite.
53. As a result of such association by the public of the names and
trademarks HING and HING DESIGNS, Defendant FTECs use of the same or of
the deceptively similar names and marks HING and HING DESIGNS in
connection with goods which are the same as or similar to the goods of Elite, is
likely to cause confusion, mistake and to deceive, with respect to Elites names and
marks HING and HING DESIGNS.
54. Elite alleges upon information and belief that Defendant FTEC has
offered for sale and has sold its Accused Products in association with the infringing
phrases HING and HING DESIGNS with full prior knowledge of Elites HING
and HING DESIGNS names and marks that defendants sale of its Accused
Products were and are for the willful and calculated purpose of trading upon Elites
goodwill and business reputation; further, Elite alleges upon information and belief
that Defendant FTEC has willfully promoted and sold its Accused Products in such
a manner so as inevitably to suggest an association, affiliation, or sponsorship with,
or approval by Elite and so as to cause, or to be likely to cause, confusion or
mistake among purchasers as to origin of Defendants goods, all to defendants
gain and Elites irreparable damage.
17

55. Defendant FTEC has thereby been engaging in unfair competition and
unfair trade practices against Elite to Elites irreparable damage.
56. The aforesaid conduct of Defendant constitutes infringement of Elites
common law rights in the names and marks HING and HING DESIGNS and
further constitutes improper and unfair competition with Elite, all of which has
damaged and will continue to damage Elites goodwill and reputation to the
irreparable injury thereof, unless enjoined and restrained by this Court, and Elite
has no adequate remedy at law.
57. Through Elites extensive and continuous use of the names and marks
HING and HING DESIGNS, the names and marks HING and HING DESIGNS
have each become distinctive of Elites goods and are associated by the public with
Elite.
58. As a result of such association by the public of the names and
trademarks HING and HING DESIGNS, Defendant BJs use of the same or of the
deceptively similar names and marks HING and HING DESIGNS in connection
with goods which are the same as or similar to the goods of Elite, is likely to cause
confusion, mistake and to deceive, with respect to Elites names and marks HING
and HING DESIGNS.
18

59. Elite alleges upon information and belief that Defendant BJs has
offered for sale and has sold its Accused Products in association with the infringing
phrases HING and HING DESIGNS with full prior knowledge of Elites HING
and HING DESIGNS names and marks that defendants sale of its Accused
Products were and are for the willful and calculated purpose of trading upon Elites
goodwill and business reputation; further, Elite alleges upon information and belief
that Defendant BJs has willfully promoted and sold its Accused Products in such a
manner so as inevitably to suggest an association, affiliation, or sponsorship with,
or approval by Elite and so as to cause, or to be likely to cause, confusion or
mistake among purchasers as to origin of Defendants goods, all to defendants
gain and Elites irreparable damage.
60. Defendant BJs has thereby been engaging in unfair competition and
unfair trade practices against Elite to Elites irreparable damage.
61. The aforesaid conduct of Defendant constitutes infringement of Elites
common law rights in the names and marks HING and HING DESIGNS and
further constitutes improper and unfair competition with Elite, all of which has
damaged and will continue to damage Elites goodwill and reputation to the
irreparable injury thereof, unless enjoined and restrained by this Court, and Elite
has no adequate remedy at law.
19

JURY DEMAND
Elite demands a trial by jury of all issues so triable.

PRAYER FOR RELIEF
WHEREFORE, Elite respectfully prays for the following relief:
A. That the Court enter judgment that Defendants FTEC and BJs have
directly and/or indirectly (induced/contributory) infringed one or more claims of
the 362 Patent in violation of 35 U.S.C. 271;
B. That the Court issue an injunction requiring Defendants FTEC and
BJs, their officers, agents, servants and employees be enjoined and restrained
from making, using, offering to sell, selling, or importing into the United States
Defendants Accused Products;
C. That the Court enter judgment and order as part of the injunction
Defendants be directed to file with this Court and serve on Plaintiff within thirty
days after issuance of the injunction, a report in writing under oath, setting forth in
detail the manner and form in which Defendants have complied with the
injunction;
D. That as a further part of the injunction Defendants be required to
deliver up and destroy all of Defendants infringing products;
20

E. That the Court enter judgment and order Defendants account for and
pay to Plaintiff all damages available to Elite for Defendants infringement of the
362 Patent, and that the Court increase the amount of damages to three times the
amount found or assessed by the Court because of the willful and deliberate nature
of the infringement, in accordance with 35 U.S.C. 284;
F. That the Court declare this an exceptional case and that Plaintiff be
granted its reasonable attorneys fees in accordance with 35 U.S.C. 285;
G. That the Court require Defendants to notify their commercial
licensees, dealers, associates, suppliers, and customers of said injunction and
judgment of this Court.
H. That Defendants, their officers, agents, servants, employees and
attorneys, and those persons in active concert or participation with them be
permanently enjoined and restrained:
1. from using the trademarks HING and HING DESIGNS or any other
designation, trademark, service mark, or trade name confusingly similar to Elites
trademarks and trade names HING and HING DESIGNS;
2. from otherwise infringing upon Elites trademark and trade names
HING and HING DESIGNS and from otherwise unfairly competing with Elite in
any manner, whatsoever; and
21

3. from offering for sale and selling and the rendering of such other
goods under the same HING and HING DESIGNS or any other designation,
trademark, trade name or service mark confusingly similar to Elites marks and
trade names HING and HING DESIGNS;
I. That Defendants be ordered to deliver up for destruction all of their
documents, signs, packages, forms, advertisements, business cards, letterheads and
other representations and means for reproducing the same or any other printed
material bearing the notations HING and HING DESIGNS or any other
designation, mark or name confusingly similar to Elites trademarks and trade
names HING and HING DESIGNS and to obliterate, destroy or remove all other
uses of Elites mark;
J. That Defendants be directed to file with the Court and serve on Elite,
no later than thirty (30) days after the issuance of an injunction, a report in writing
and under oath setting forth in detail the manner and form in which Defendants
have complied with the injunction;
K. That Defendants be required to pay to Elite such damages as Elite has
sustained as a consequence of Defendants trademark and trade name infringement
and unfair competition and to account for all gains, profits and advantages derived
by defendant by said unfair competition;
22

L. That Defendants be required to deliver up to be impounded during the
pendency of this action all Accused Goods and all promotional materials remaining
in inventory bearing either the mark HING or the mark HING DESIGNS in their
possession or under their control and to deliver up for destruction all infringing
copies and all plates, molds, and other matter for making such infringing Accused
Products;
M. That an accounting and judgment be rendered against Defendants for:
1. all profits received by Defendants from their sale of goods in which
the terms HING and HING DESIGNS that is confusingly similar to the Elites
HING and HING DESIGNS names and marks are used directly or indirectly; and
2. all damages sustained by Elite on account of Defendants trademark
infringement, unfair competition, unfair or deceptive acts or practices, false
designation of origin, false description or representation, injury to Elites business
reputation, and dilution of Elites trademarks and trade names, and furthermore,
that such damages and profits, as found herein, be trebled as provided by Section
35 of the Trademark Act of 1946 [15 U.S.C. 1117];
N. That Elite have and recover its costs in this suit, including reasonable
attorneys fees and expenses; and
23

O. That Elite receive such other and further relief as the Court may deem
just; and
P. That the Court grant Elite prejudgment interest and costs.

24

Respectfully submitted this 21
st
day of February, 2013
/s/ Todd Deveau
Todd Deveau
Georgia Bar No. 219725
todd.deveau@thomashorstemeyer.com
Kevin James Sangston
Georgia Bar No. 626171
jim.sangston@thomashorstemeyer.com
THOMAS|HORSTEMEYER, LLP
400 Interstate North Parkway SE
Suite 1500
Atlanta, GA 30339
Telephone: (770) 933-9500
Facsimile: (770) 951-0933

Attorneys for Elite Dogstands Ltd.

EXHIBIT A

Case 1:13-cv-00573-JEC Document 1-1 Filed 02/21/13 Page 1 of 8
I IIIII 11111111 11111111111111111111111111111 11111111111
(12) United States Design Patent
Man
(54) PET STAND
(75) Inventor: Hang Lam Man, Harlow (GB)
(73) Assignee: Elite Dogstands Ltd., Harlow (GB)
(**) Term: 14 Years
(21) Appl. No.: 29/336,953
(22) Filed: May 12, 2009
(30) Foreign Application Priority Data
Nov. 24, 2008 (EM) ................................ 001044804
(51) LOC (9) Cl. .................................................. 30-03
(52) U.S. Cl . ..................... D30!133; D30/131; D30/130
(58) Field of Classification Search ................ D30/133,
(56)
D301121, 128, 130, 132; 119/52.1, 55, 61.5-61.56;
D6/480-485; 248/188; 312/204; 108/153.1-157
See application file for complete search history.
References Cited
U.S. PATENT DOCUMENTS
D249,605 S * 9/1978 Skermetta .................... D6/539
D292,446 S * 10/1987 Gilbert ........................ D3/238
D294,748 S * 3/1988 Dobelle ..................... D30/109
4,763,604 A * 8/1988 Meekins .................... 119/28.5
D298,671 S * 11/1988 Simerson ................... D30/130
D300,068 S * 2/1989 Pritikin et al .............. D30/129
D361,874 S * 8/1995 Keller eta!. ............... D30/129
D401,761 S * 12/1998 Sandmann eta!. ........... D3/238
D424,281 S * 5/2000 Jebber et al .................. D2/869
6,209,487 B1 * 4/2001 Quinlan eta!. ........... 119/51.01
6,427,626 B1 * 8/2002 Quinlan eta!. ........... 119/51.01
D476,808 S * 7/2003 Carr ......................... D3/271.2
D481,867 S * 11/2003 Hotz ........................ D3/271.2
D487,327 S * 3/2004 Andersen eta!. ............. Dl/199
6,705,249 B2 * 3/2004 Quinlan eta!. ........... 119/51.01
6,786,177 B1 * 9/2004 Lemkin ................... 119/5101
USOOD623362S
(10) Patent No.: US D623,362 S
** Sep. 7, 2010
(45) Date of Patent:
D498,955 s
*
11/2004 Edwards ...................... D6/515
D512,189 s
*
11/2005 Byrne ....................... D30/160
D512,539 s
*
12/2005 Bnmes eta!. .............. D30/130
D516.806 s
*
3/2006 Lawrence ................. D3/271.1
D521,690 s
*
5/2006 Krcek eta!. ............... D30/133
D521.782 s
*
5/2006 Edwards ...................... D6/518
D529.279 s
*
10/2006 Parks ....................... D3/203.3
D551,400 s
*
9/2007 Tsengas ..................... D30/133
D552,634 s
*
10/2007 Janiszewski ................. D15/90
D571.060 s
*
6/2008 Addeo ....................... D30/158
D576.358 s
*
9/2008 Rutherford ................. D30/160
D577,466 s
*
9/2008 Shamoon ................... D30/133
D578.714 s
*
10/2008 Rutherford ................. D30/160
D595,998 s
*
7/2009 Hauser ........................ D7/672
D597,262 s
*
7/2009 Shamoon eta!. ........... D30/l30
D606,801 s
*
12/2009 Kirk ............................ D7/354
2005/0115508 A1 * 6/2005 Little ........................ 119/61.5
* cited by examiner
Primary Moon Lee
(7 4) Attorney, Agent, or Thomas, Kay den,
Horstemeyer & Risley, LLP; Todd Deveau
(57) CLAIM
I claim the ornamental design for a pet stand, as shown and
described.
DESCRIPTION
FIG. 1 is an overall perspective view from above of a pet
stand;
FIG. 2 is a top plan view thereof;
FIG. 3 is a front elevational view thereof;
FIG. 4 is a side elevational view thereof;
FIG. 5 is a bottom plan view thereof; and,
FIG. 6 is a perspective view from below of the pet stand of
FIG.l.
1 Claim, 6 Drawing Sheets
U.S. Patent Sep. 7,2010 Sheet 1 of 6 US D623,362 S
FIG. 1
FIG. 2
FIG. 3
FIG. 4
FIG. 5
FIG. 6
EXHIBIT B
Prestige Pet Products
http://www.prestigepet.com/[2/21/2013 1:04:14 PM]
My Account My Cart Checkout Log In
Prestige Pet products
manufactures numerous
pet supplies ranging
from treats and toys
to stylish feeders
and odor and stain
eliminating solutions.

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Dreamables For Your Dog
Serve your dogs food and water in the classically styled bone-shaped feeder. Our simple, yet
dignified design comes with two removable stainless steel bowls which can be washed in the
regular dishwasher cycle. Its what every dog wants!
PaPurr Premimum Cat Litter
PaPurr looks and feels like ordinary clay litter, but its made from recycled paper. This premium
litter works hard to control the toughest cat box odors, it absorbs as only paper can and its earth
friendly. PaPurr is also the only totally non-clay litter thats granular, with the look and feel of
clay litter.
What Odor? for pets
What Odor? guarantees to eliminate any odor anywhere! The unique combination of 41 essential
oils surrounds odors to eliminate them permanently. What Odor? is not a masking agent, it does
not contain perfumes or artificial fragrances.
What Stain? for pets

What Stain? completely eliminates stains in fabric, upholstery, carpet and high traffic areas
without using harsh chemicals. What Stain? will completely eliminate tough stains and is great for
urine and fecal stains, vomit stains, blood stains, cola, wine, kool-aid, oil, grease, dirt, mud and
much more!

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Shipping Policy Refund Policy Privacy Policy Contact Us Copyright 2012 For The Earth Corporation
Dreamables
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For Your Dog
Our simple yet dignified design comes with two
removable stainless steel bowls which can be
washed in the regular dishwasher cycle.
Non-slip rubber feet prevent movement of the
bowl while feeding and drinking.
We have two sizes to choose from: small
stainless steel bowls hold approximately 10 fl.
oz. and measures 14.2 x 8.7 x 3 for the
smaller to medium breeds and the large stainless
steel bowls hold approximately 40 fl. oz. and
measures 19.3 x 12 x 4.5 for the larger
breeds.
Available in a variety of contemporary colors
(orange, green, pink, blue, red, white and black)
to match any room or dogs personality!
BUY Small
BUY Large
Our dog loves her bowls! We ended up
buying two bowls, one for the deck outside
and one for the kitchen and the colors
match perfectly with our room decor!
Dreamables

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248-615-8984
Email: sales@prestigepet.com
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EXHIBIT C




J S44 (Rev. 1/08 NDGA) CI VI L COVER SHEET

The J S44 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 is required for the use of the Clerk of Court for the purpose of initiating the civil docket record. (SEE I NSTRUCTI ONS ATTACHED)
I . (a) PLAI NTI FF(S) DEFENDANT(S)
(b) COUNTY OF RESI DENCE OF FI RST LI STED COUNTY OF RESI DENCE OF FI RST LI STED
PLAI NTI FF DEFENDANT
(EXCEPT I N U.S. PLAI NTI FF CASES) (I N U.S. PLAI NTI FF CASES ONLY)

NOTE: I N LAND CONDEMNATI ON CASES, USE THE LOCATI ON OF THE TRACT OF
LAND I NVOLVED
(c) ATTORNEYS (FI RM NAME, ADDRESS, TELEPHONE NUMBER, AND ATTORNEYS (I F KNOWN)
E-MAI L ADDRESS)
I I . BASI S OF J URI SDI CTI ON I I I . CI TI ZENSHI P OF PRI NCI PAL PARTI ES
(PLACE AN X I N ONE BOX ONLY) (PLACE AN X I N ONE BOX FOR PLAI NTI FF AND ONE BOX FOR DEFENDANT)
(FOR DI VERSI TY CASES ONLY)
PLF DEF PLF DEF

1 U.S. GOVERNMENT 3 FEDERAL QUESTI ON 1 1 CI TI ZEN OF THI S STATE 4 4 I NCORPORATED OR PRI NCI PAL
PLAI NTI FF (U.S. GOVERNMENT NOT A PARTY) PLACE OF BUSI NESS I N THI S STATE
2 U.S. GOVERNMENT 4 DI VERSI TY 2 2 CI TI ZEN OF ANOTHER STATE 5 5 I NCORPORATED AND PRI NCI PAL
DEFENDANT (I NDI CATE CI TI ZENSHI P OF PARTI ES PLACE OF BUSI NESS I N ANOTHER
I N I TEM I I I ) STATE
3 3 CI TI ZEN OR SUBJ ECT OF A
FOREI GN COUNTRY 6 6 FOREI GN NATI ON
I V. ORI GI N (PLACE AN X I N ONE BOX ONLY)
TRANSFERRED FROM APPEAL TO DI STRI CT J UDGE
1 ORI GI NAL 2 REMOVED FROM 3 REMANDED FROM 4 REI NSTATED OR 5 ANOTHER DI STRI CT 6 MULTI DI STRI CT 7 FROM MAGI STRATE J UDGE
PROCEEDI NG STATE COURT APPELLATE COURT REOPENED (Specify District) LI TI GATI ON J UDGMENT

V. CAUSE OF ACTI ON (CI TE THE U.S. CI VI L STATUTE UNDER WHI CH YOU ARE FI LI NG AND WRI TE A BRI EF STATEMENT OF CAUSE - DO NOT CI TE
J URI SDI CTI ONAL STATUTES UNLESS DI VERSI TY)
(I F COMPLEX, CHECK REASON BELOW)
1. Unusually large number of parties. 6. Problems locating or preserving evidence
2. Unusually large number of claims or defenses. 7. Pending parallel investigations or actions by government.
3. Factual issues are exceptionally complex 8. Multiple use of experts.
4. Greater than normal volume of evidence. 9. Need for discovery outside United States boundaries.
5. Extended discovery period is needed. 10. Existence of highly technical issues and proof.
CONTI NUED ON REVERSE
FOR OFFI CE USE ONLY

RECEIPT # AMOUNT $ APPLYING IFP MAG. J UDGE (IFP)
J UDGE MAG. J UDGE NATURE OF SUIT CAUSE OF ACTION
(Referral)

ELITE DOGSTANDS, LTD
FOR THE EARTH CORPORATION, BJ'S WHOLESALE
CLUB, INC.
Todd Deveau (todd.deveau@thomashorstemeyer.com)
K. James Sangston (jim.sangston@thomashorstemeyer.com)
Thomas Horstemeyer, LLP
400 Interstate North Parkway, Suite 1500,Atlanta, GA 30339
770-933-9500

This is an action for patent, trademark and trade name infringement, unfair competition, injury to business reputation, and trademark
and trade name dilution arising under the Patent Laws of the United States, specifically 35 U.S.C. 271 and 35 U.S.C. 281, the
Federal Trademark Act of 1946, 60 Stat. 427, 15 U.S.C. 1051
VI . NATURE OF SUI T (PLACE AN X I N ONE BOX ONLY)
CONTRACT - "0" MONTHS DI SCOVERY TRACK
150 RECOVERY OF OVERPAYMENT &
ENFORCEMENT OF J UDGMENT
152 RECOVERY OF DEFAULTED STUDENT
LOANS (Excl. Veterans)
153 RECOVERY OF OVERPAYMENT OF
VETERAN'S BENEFI TS
CONTRACT - "4" MONTHS DI SCOVERY TRACK
110 I NSURANCE
120 MARI NE
130 MI LLER ACT
140 NEGOTI ABLE I NSTRUMENT
151 MEDI CARE ACT
160 STOCKHOLDERS' SUI TS
190 OTHER CONTRACT
195 CONTRACT PRODUCT LI ABI LI TY
196 FRANCHI SE
REAL PROPERTY - "4" MONTHS DI SCOVERY
TRACK
210 LAND CONDEMNATI ON
220 FORECLOSURE
230 RENT LEASE & EJ ECTMENT
240 TORTS TO LAND
245 TORT PRODUCT LI ABI LI TY
290 ALL OTHER REAL PROPERTY
TORTS - PERSONAL I NJ URY - "4" MONTHS
DI SCOVERY TRACK
310 AI RPLANE
315 AI RPLANE PRODUCT LI ABI LI TY
320 ASSAULT, LI BEL & SLANDER
330 FEDERAL EMPLOYERS' LI ABI LI TY
340 MARI NE
345 MARI NE PRODUCT LI ABI LI TY
350 MOTOR VEHI CLE
355 MOTOR VEHI CLE PRODUCT LI ABI LI TY
360 OTHER PERSONAL I NJ URY
362 PERSONAL I NJ URY - MEDI CAL
MALPRACTI CE
365 PERSONAL I NJ URY - PRODUCT LI ABI LI TY
368 ASBESTOS PERSONAL I NJ URY PRODUCT
LI ABI LI TY
TORTS - PERSONAL PROPERTY - "4" MONTHS
DI SCOVERY TRACK
370 OTHER FRAUD
371 TRUTH I N LENDI NG
380 OTHER PERSONAL PROPERTY DAMAGE
385 PROPERTY DAMAGE PRODUCT LI ABI LI TY

BANKRUPTCY - "0" MONTHS DI SCOVERY
TRACK
422 APPEAL 28 USC 158
423 WI THDRAWAL 28 USC 157
CI VI L RI GHTS - "4" MONTHS DI SCOVERY TRACK
441 VOTI NG
442 EMPLOYMENT
443 HOUSI NG/ ACCOMMODATI ONS
444 WELFARE
440 OTHER CI VI L RI GHTS
445 AMERI CANS with DI SABI LI TI ES - Employment
446 AMERI CANS with DI SABI LI TI ES - Other
I MMI GRATI ON - "0" MONTHS DI SCOVERY TRACK
462 NATURALI ZATI ON APPLI CATI ON
463 HABEAS CORPUS- Alien Detainee
465 OTHER I MMI GRATI ON ACTI ONS
PRI SONER PETI TI ONS - "0" MONTHS DI SCOVERY
TRACK
510 MOTI ONS TO VACATE SENTENCE
530 HABEAS CORPUS
535 HABEAS CORPUS DEATH PENALTY
540 MANDAMUS & OTHER
550 CI VI L RI GHTS - Filed Pro se
555 PRI SON CONDI TI ON(S) - Filed Pro se
PRI SONER PETI TI ONS - "4" MONTHS DI SCOVERY
TRACK
550 CI VI L RI GHTS - Filed by Counsel
555 PRI SON CONDI TI ON(S) - Filed by Counsel
FORFEI TURE/PENALTY - "4" MONTHS DI SCOVERY
TRACK
610 AGRI CULTURE
620 FOOD & DRUG
625 DRUG RELATED SEI ZURE OF PROPERTY
21 USC 881
630 LI QUOR LAWS
640 R.R. & TRUCK
650 AI RLI NE REGS.
660 OCCUPATI ONAL SAFETY / HEALTH
690 OTHER
LABOR - "4" MONTHS DI SCOVERY TRACK
710 FAI R LABOR STANDARDS ACT
720 LABOR/MGMT. RELATI ONS
730 LABOR/MGMT. REPORTI NG & DI SCLOSURE
ACT
740 RAI LWAY LABOR ACT
790 OTHER LABOR LI TI GATI ON
791 EMPL. RET. I NC. SECURI TY ACT
PROPERTY RI GHTS - "4" MONTHS DI SCOVERY
TRACK
820 COPYRI GHTS
840 TRADEMARK
PROPERTY RI GHTS - "8" MONTHS DI SCOVERY
TRACK
830 PATENT
SOCI AL SECURI TY - "0" MONTHS DI SCOVERY
TRACK
861 HI A (1395ff)
862 BLACK LUNG (923)
863 DI WC (405(g))
863 DI WW (405(g))
864 SSI D TI TLE XVI
865 RSI (405(g))
FEDERAL TAX SUI TS - "4" MONTHS DI SCOVERY
TRACK
870 TAXES (U.S. Plaintiff or Defendant)
871 I RS - THI RD PARTY 26 USC 7609
OTHER STATUTES - "4" MONTHS DI SCOVERY
TRACK
400 STATE REAPPORTI ONMENT
430 BANKS AND BANKI NG
450 COMMERCE/I CC RATES/ETC.
460 DEPORTATI ON
470 RACKETEER I NFLUENCED AND CORRUPT
ORGANI ZATI ONS
480 CONSUMER CREDI T
490 CABLE/SATELLI TE TV
810 SELECTI VE SERVI CE
875 CUSTOMER CHALLENGE 12 USC 3410
891 AGRI CULTURAL ACTS
892 ECONOMI C STABI LI ZATI ON ACT
893 ENVI RONMENTAL MATTERS
894 ENERGY ALLOCATI ON ACT
895 FREEDOM OF I NFORMATI ON ACT
900 APPEAL OF FEE DETERMI NATI ON UNDER
EQUAL ACCESS TO J USTI CE
950 CONSTI TUTI ONALI TY OF STATE STATUTES
890 OTHER STATUTORY ACTI ONS
OTHER STATUTES - "8" MONTHS DI SCOVERY
TRACK
410 ANTI TRUST
850 SECURI TI ES / COMMODI TI ES / EXCHANGE

OTHER STATUTES - 0" MONTHS DI SCOVERY
TRACK
ARBI TRATI ON (Confirm/ Vacate/ Order / Modify)
(Note: Mark underlying Nature of Suit as well)
* PLEASE NOTE DI SCOVERY
TRACK FOR EACH CASE TYPE.
SEE LOCAL RULE 26.3
VI I . REQUESTED I N COMPLAI NT:

CHECK I F CLASS ACTI ON UNDER F.R.Civ.P. 23 DEMAND $_____________________________

J URY DEMAND YES NO (CHECK YES ONLY I F DEMANDED I N COMPLAI NT)

VI I I . RELATED/REFI LED CASE(S) I F ANY

J UDGE_______________________________ DOCKET NO._______________________

CI VI L CASES ARE DEEMED RELATED I F THE PENDI NG CASE I NVOLVES: (CHECK APPROPRI ATE BOX)
1. PROPERTY I NCLUDED I N AN EARLI ER NUMBERED PENDI NG SUI T.
2. SAME I SSUE OF FACT OR ARI SES OUT OF THE SAME EVENT OR TRANSACTI ON I NCLUDED I N AN EARLI ER NUMBERED PENDI NG SUI T.
3. VALI DI TY OR I NFRI NGEMENT OF THE SAME PATENT, COPYRI GHT OR TRADEMARK I NCLUDED I N AN EARLI ER NUMBERED PENDI NG SUI T.
4. APPEALS ARI SI NG OUT OF THE SAME BANKRUPTCY CASE AND ANY CASE RELATED THERETO WHI CH HAVE BEEN DECI DED BY THE SAME
BANKRUPTCY J UDGE.
5. REPETI TI VE CASES FI LED BY PRO SE LI TI GANTS.
6. COMPANI ON OR RELATED CASE TO CASE(S) BEI NG SI MULTANEOUSLY FI LED (I NCLUDE ABBREVI ATED STYLE OF OTHER CASE(S)):
7. EI THER SAME OR ALL OF THE PARTI ES AND I SSUES I N THI S CASE WERE PREVI OUSLY I NVOLVED I N CASE NO. , WHI CH WAS
DI SMI SSED. This case I S I S NOT (check one box) SUBSTANTI ALLY THE SAME CASE.

SI GNATURE OF ATTORNEY OF RECORD DATE
02/21/2013 /s/ Todd Deveau

Elite Dogstands v. For The Earth - Complaint

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IN THE UNITED STATES DISTRICT COURT

What Stain? for pets

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02/21/2013 /s/ Todd Deveau

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