You are on page 1of 21

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE


NASHVILLE DIVISION

Big Time Toys, LLC, and Sam )
Harwell, )
) JURY DEMAND
Plaintiff, )
)
v. ) Case No. 3:14-cv-1350
)
Buzz Bee Toys, Inc.; Buzz Bee Toys ) Judge Campbell
(HK) Co., Ltd.; Jeffrey C. ) Magistrate-Judge Bryant
Zimmerman; and Target Corp., )
)
Defendants. )

FIRST AMENDED COMPLAINT

In support of the relief sought herein, the Plaintiffs, Big Time Toys, LLC (Big
Time), and Sam Harwell, hereby allege as follows:
PARTIES
1. Big Time is a Tennessee limited-liability company with its principal place
of business at 2823 Dogwood Place, Nashville, Tennessee. Big Times membership
consists of Tennessee citizens.
2. Big Time manufactures, markets and sells its own branded toys
worldwide. Its best-known toys include MOONSHOES, SEA-MONKEYS,
YOYOBALL, and, germane to this lawsuit, SOCKER BOPPER inflatable boxing
pillows, among many others. It sells its products domestically through a number of
nationally-famous retailers, such as Wal-Mart, Walgreens, Toys R Us and, germane to
this lawsuit, formerly Target Corp. (Target).
1
Case 3:14-cv-01350 Document 25 Filed 10/21/14 Page 1 of 21 PageID #: 187
3. Sam Harwell is the President and CEO of Big Time. He has his principal
permanent residence in Nashville, Tennessee.
4. Buzz Bee Toys, Inc. (Buzz Bee), is a New Jersey corporation. On
information and belief, it has its principal place of business at 309 Fellowship Road,
Suite 105, Mt. Laurel, New Jersey 08054.
5. Buzz Bee is a toy company, best known for toys that closely emulate well-
known toys, such as its Air Warriors line, which is similar to Hasbros Nerf Blasters line,
and Water Warriors line, which is similar to Hasbros Super Soaker line.
6. According to the searchable online database of the Division of Business
Services of the Tennessee Secretary of State, Buzz Bee has no registered agent for the
service of process in Tennessee. Therefore, it may be served via the Tennessee Secretary
of State, pursuant to Tennessees Long Arm Statute, T.C.A. 20-2-214 & -215.
7. Buzz Bee Toys (HK) Co., Ltd. (Buzz Bee HK) is, on information and
belief, a corporation organized under the laws of the Peoples Republic of China, with its
principal place of business at 1803-04 Railway Plaza, 39 Chatham Rd. (S), Tsim Sha
Tsui, Hong Kong, Peoples Republic of China.
8. Jeffrey C. Zimmerman is President of Buzz Bee. On information and belief,
he resides in New Jersey.
9. Target is, on information and belief, a Minnesota corporation with its
principal place of business at 1000 Nicollet Mall, Minneapolis, MN 55403-2542. On
information and belief, Target maintains a registered agent for the service of process at
CT Corporation System, 800 S. Gay St., Ste. 2021, Knoxville, TN 37929-9710.
JURISDICTION AND VENUE
2
Case 3:14-cv-01350 Document 25 Filed 10/21/14 Page 2 of 21 PageID #: 188
10. This Court has subject-matter jurisdiction over this action under 28 U.S.C.
1331 and 1338 because it arises under the Lanham Act, 15 U.S.C. 1051, et seq. This
court has jurisdiction over the additional claims under 28 U.S.C. 1332 because Big
Time and Mr. Harwell are citizens of Tennessee and Buzz Bee and Mr. Zimmerman are
citizens of New Jersey, Buzz Bee HK is a citizen of the Peoples Republic of China and
Target is a citizen of Minnesota, and the amount in controversy exceeds $75,000. This
Court further has supplemental jurisdiction over such additional claims under 28 U.S.C.
1367.
11. This Court has personal jurisdiction over Buzz Bee because tortious acts
that are the subject of this action were committed in Tennessee. In particular, as
detailed below, Buzz Bee, through itself and/or through its closely-related sister
company, Buzz Bee HK, has sold and continues to sell the infringing goods to Target,
with the knowledge that Target has several stores in Tennessee and in this District, and
with the expectation that Target will sell the infringing goods in Tennessee and in this
District.
12. This Court has personal jurisdiction over Buzz Bee HK because tortious
acts that are the subject of this action were committed in Tennessee. In particular, as
detailed below, Buzz Bee HK has sold and continues to sell the infringing goods to
Target, with the knowledge that Target has several stores in Tennessee and in this
District, and with the expectation that Target will sell the infringing goods in Tennessee
and in this District.
13. This Court has personal jurisdiction over Mr. Zimmerman because
tortious acts that are the subject of this action were committed in Tennessee. In
3
Case 3:14-cv-01350 Document 25 Filed 10/21/14 Page 3 of 21 PageID #: 189
particular, as detailed below, Mr. Zimmerman oversees the design, manufacture and
sales of all Buzz Bee toys, including the sale of the infringing toys through Target retail
stores in Tennessee and in this District.
14. This Court has personal jurisdiction over Target because tortious acts that
are the subject of this action were committed in Tennessee. In particular, Target has
sold and continues to sell the infringing goods through its retail stores located in
Tennessee and in this District.
15. Venue is proper in this District pursuant to 28 U.S.C. 1391 because Buzz
Bee, Buzz Bee HK, Mr. Zimmerman and Target have committed tortious acts subject to
this action in this District.
GENERAL ALLEGATIONS
16. Big Time is in the business of manufacturing, marketing and selling toys.
One of its leading products is SOCKER BOPPER inflatable boxing pillows. When
inflated, SOCKER BOPPER inflatable boxing pillows have a squat cylinder shape,
about ten inches in diameter, with a hollow in the middle of one side into which a childs
hand may be securely inserted. The other side prominently bears the SOCKER
BOPPER logo.
17. Children with SOCKER BOPPER inflatable boxing pillows secured to
each hand may safely hit each other with the toys. The toy is intended for children five
and older.
18. The mark SOCKER BOPPER (the Mark) is registered on the Principal
Register of the United States Patent and Trademark Office (USPTO), bearing
registration no. 2931334 (the Registration), with an application filing date of February
4
Case 3:14-cv-01350 Document 25 Filed 10/21/14 Page 4 of 21 PageID #: 190
26, 2003, and a registration date of March 8, 2005, for use in connection with boxing
gloves, punching bags, inflatable bop bags, inflatable speed bags, stuffed punching balls,
paddle balls, inflatable punch balls, balloons, electronic arcade punching games, and
inflatable toys in the nature of hand covers (the Goods).
19. Mr. Harwell is the current owner of the Mark, Socker Bopper Trade Dress
(defined below), the Classic Socker Bopper Combined Logo (defined below) and Classic
Socker Bopper Packaging (defined below) (collectively, the Indicia). He is also the
current registrant of the Registration.
20. Big Time is the exclusive licensee of the Indicia from Mr. Harwell,
pursuant to a written instrument, a true and correct copy of which is attached hereto as
Exhibit A. Big Time originally developed the Indicia and was the original owner of the
Indicia (and associated goodwill) and was the original registrant of the Registration.
21. In 2012, Big Time assigned the Indicia (and associated goodwill) and
Registration to Mr. Harwell, and Mr. Harwell granted an exclusive license back to Big
Time in connection with Indicia (and associated goodwill) and Registration. This
transaction was memorialized in a written instrument (and amendment), a true and
correct copy of which is attached hereto as Exhibit A.
22. The Mark has been used in commerce for at least five consecutive years
since its U.S. registration in connection with the Goods. A Declaration of Use and
Incontestability Under Sections 8 and 15 in connection with the Registration and
meeting the requirements of 15 U.S.C. 1065 was properly submitted to the USPTO on
March 1, 2011, and was accepted and acknowledged by the USPTO on April 5, 2011. As a
result, the Mark is incontestable, and the Marks registration is conclusive evidence of
5
Case 3:14-cv-01350 Document 25 Filed 10/21/14 Page 5 of 21 PageID #: 191
the validity of the Mark and of the registration of the Mark, of the licensors ownership
of the Mark and exclusive right to use the Mark in commerce.
23. Under the terms of Big Times exclusive license for SOCKER BOPPER,
no one, not even the licensor, is permitted to use SOCKER BOPPER for the Goods
except Big Time.
24. Big Time has spent a great deal of money, time and effort in advertising
and promoting its SOCKER BOPPER toys. Since 1996, Big Time has spent
approximately $10 million on television advertising alone and has sold almost 5 million
units. As a result, the Mark is famous as a source of high-quality toys, specifically
inflatable boxing pillows.
25. The SOCKER BOPPER brand has been in continuous use since at least
1996 to promote this line of inflatable boxing pillows.
26. The SOCKER BOPPER toy is shaped as a squat cylinder, with a slightly
concave face. The SOCKER BOPPER logo is placed in the middle of the face in a color
that contrasts with both that of the face and the side. These design elements are
ornamental and non-functional and combine to create a distinctive trade dress that has
been in use since 1996 (the Socker Bopper Trade Dress). Elements of this design are
also the subject of the now-expired U.S. Design Patent No. D404,086, of which Mr.
Harwell was the inventor.
27. Since 1996, the toy and packaging bore a logo that consisted of lettering
and a stylized explosion. The lettering of SOCKER BOPPER was set in an amusing,
off-kilter font in front of a stylized explosion that consists of multiple triangular points
radiating from a central area, set in a color that contrasts with the color of the lettering
6
Case 3:14-cv-01350 Document 25 Filed 10/21/14 Page 6 of 21 PageID #: 192
(the Classic Socker Bopper Combined Logo). Although Big Time has recently
introduced a new combined logo, the Classic Socker Bopper Combined Logo is still used
in connection with sales of SOCKER BOPPER inflatable boxing pillows in the U.S. and
is still very much in evidence on the internet, on Big Time's website and in the stream of
commerce. The Plaintiffs have no intention of abandoning the Classic Socker Bopper
Combined Logo.
28. The SOCKER BOPPER toy is packaged in colored cardboard boxes that
feature two children wearing the SOCKER BOPPER inflatable boxing pillows. Since
1996, the front of the packaging has the image of the children taking up about the lower
two-thirds of the box and, just above their heads, the Combined Logo, all set against a
background color that contrasts with both colors of the Combined Logo (the Classic
Socker Bopper Packaging). Although Big Time has recently introduced a new package
design for the SOCKER BOPPER toys, the Classic Socker Bopper Packaging is still
used in connection with sales in the U.S. of SOCKER BOPPER inflatable pillows and is
still very much in evidence on the internet, on Big Time's website and in the stream of
commerce. The Plaintiffs have no intention of abandoning the Classic Socker Bopper
Packaging.
29. Attached hereto as Exhibit B is a true and correct image of the SOCKER
BOPPER toys and packaging, clearly showing the Socker Bopper Trade Dress, the
Classic Socker Bopper Combined Logo and the Classic Socker Bopper Packaging.
30. Recently, Buzz Bee and Buzz Bee HK have been manufacturing, marketing
and selling their own line of inflatable boxing pillows under the name Sockn Bop. On
information and belief, Buzz Bees and Buzz Bee HKs use of Sockn Bop and related
7
Case 3:14-cv-01350 Document 25 Filed 10/21/14 Page 7 of 21 PageID #: 193
design elements in connection with inflatable boxing pillows commenced no earlier than
2012.
31. The Buzz Bee inflatable boxing pillows have the name Sockn Bop
positioned on the face of the toy, in an amusing, off-kilter font. It is placed in front of a
stylized explosion, which is in a color that contrasts with that of the brand letters (the
Sockn Bop Logo).
32. The Buzz Bee inflatable boxing pillows are also a squat cylinder shape with
a slightly concave face that bears Buzz Bees Sockn Bop Logo in the center in a color that
contrasts with that of the face and side (the Sockn Bop Product Design).
33. The Buzz Bee inflatable boxing pillows are sold in colorful cardboard
boxes. On the front of the box are two children wearing the Buzz Bee inflatable boxing
pillows, which takes up roughly the bottom two-thirds of the box front, with the Sockn
Bop Logo prominently displayed; just above the childrens heads is the larger instance of
the Sockn Bop Logo; the background color of the box front contrasts with both colors of
the Sockn Bop Logo (the Buzz Bee Package Design).
34. Attached hereto as Exhibit C is a true and correct copy of an image that
accurately displays the Sockn Bop products and packaging, with Sockn Bop Logo,
Sockn Bop Product Design and Buzz Bee Package Design evident.
35. Big Time sells SOCKER BOPPER inflatable boxing pillows through
major retail channels, such as WalMart and Toys R Us, and through major internet
retailers, such as amazon.com.
36. On information and belief, Buzz Bee and Buzz Bee HK sell their Sockn
Bop inflatable boxing pillows through these same trade channels.
8
Case 3:14-cv-01350 Document 25 Filed 10/21/14 Page 8 of 21 PageID #: 194
37. Until recently, one of Big Times largest customers for its SOCKER
BOPPER inflatable boxing pillows had been Target. From October 2011 to March
2013, Big Time had sold approximately $1.1 million worth of SOCKER BOPPER
inflatable boxing pillows to Target.
38. Recently, however, Target has begun purchasing, promoting and selling
Buzz Bees Sockn Bop inflatable boxing pillows instead of SOCKER BOPPER
inflatable boxing pillows. On information and belief, Target places the Sockn Bop
products in the same place it previously placed the SOCKER BOPPER product; thus,
consumers who were accustomed to seeing SOCKER BOPPER in Targets aisles now
see Buzz Bees Sockn Bop toys in their place.
39. Target has about 1800 retail stores in the United States, about 30 in
Tennessee and about twelve in this District. Target has promoted, offered to sell and
sold Sockn Bop products in Tennessee and in this District.
40. Mr. Zimmerman is Buzz Bees president. His duties for Buzz Bee include,
among other duties, directly overseeing the design, manufacture, packaging, and sales of
all of Buzz Bees toy products.
41. Mr. Zimmerman oversaw the design, manufacture and sale of the Sockn
Bop toys, and directed Buzz Bee to design, manufacture, packaging, and distribute the
Sockn Bop toys throughout the United States through Target retailers, including
Target retailers in Tennessee and in this District.
42. On information and belief, Buzz Bee and Mr. Zimmerman knew of the
Indicia when they chose to use Sockn Bop, the Sockn Bop Product Design, the Sockn
Bop Combined Logo and the Buzz Bee Package Design to promote their competing
9
Case 3:14-cv-01350 Document 25 Filed 10/21/14 Page 9 of 21 PageID #: 195
inflatable boxing pillows. On information and belief, Buzz Bee and Mr. Zimmerman
chose to use Sockn Bop, the Sockn Bop Product Design, the Sockn Bop Combined
Logo and the Buzz Bee Package Design because they were similar to, and would likely
create consumer confusion as to, the Mark, the Socker Bopper Trade Dress, the Classic
Socker Bopper Combined Logo and the Classic Socker Bopper Packaging, respectively,
and because they desired to trade on Big Times accrued goodwill therein.
43. On information and belief, Buzz Bee HK knew of the Indicia when it chose
to manufacture the Sockn Bop products and distribute them in the United States. On
information and belief, Buzz Bee HK intended for consumers to become confused as to
the source and origin of the Sockn Bop products and to trade on Big Times goodwill
accrued in the Indicia.
44. Because Target formerly sold SOCKER BOPPER products, it knew of the
Indicia. On information and belief, one reason Target chose to sell the Sockn Bop
products instead of the SOCKER BOPPER products was the similarity in the marks,
the packaging and the product design, so that consumers would likely be confused as to
the source and origin of the Sockn Bop products.
45. The Classic Socker Bopper Combined Logo, and its placement and color
contrast, are aesthetic and not functional.
46. The Classic Socker Bopper Packaging is aesthetic and not functional.
47. The Socker Bopper Trade Dress is aesthetic and not functional.
48. On information and belief, as a result of the Defendants actions, retailers
and consumers likely have been, are and will continue to be confused as to the source
and sponsorship of Buzz Bees Sock'n Bop inflatable boxing pillows.
10
Case 3:14-cv-01350 Document 25 Filed 10/21/14 Page 10 of 21 PageID #: 196
49. Unless the Defendants are enjoined from using Sock'n Bop, the Sockn
Bop Logo, the Buzz Bee Package Design, and the Sockn Bop Product Design, Big Time
will suffer irreparable injury to its reputation and goodwill, which cannot be adequately
compensated monetarily.
COUNT I: FEDERAL INFRINGEMENT OF A REGISTERED TRADEMARK

50. The Plaintiffs repeat and incorporate by reference the allegations of
paragraphs 1 through 49 as though fully set forth herein.
51. The mark SOCKER BOPPER is registered on the Principal Register of
the United States Patent and Trademark Office, bearing registration no. 2931334, with
an application filing date of February 26, 2003, and a registration date of March 8,
2005, for use in connection with boxing gloves, punching bags, inflatable bop bags,
inflatable speed bags, stuffed punching balls, paddle balls, inflatable punch balls,
balloons, electronic arcade punching games, and inflatable toys in the nature of hand
covers (the Goods).
52. Mr. Harwell is the owner of the federally registered Mark for us in
connection with, among other things, inflatable boxing pillows.
53. Mr. Harwell is, through assignment of the Mark and Registration from Big
Time, the senior use of the Mark in interstate commerce.
54. The Defendants use of Sockn Bop in interstate commerce in connection
with inflatable boxing pillows will likely result in confusion as to source or affiliation, in
violation of 15 U.S.C. 1114(1).
55. The Defendants activities will be likely to cause confusion of the public to
Mr. Harwells detriment.
11
Case 3:14-cv-01350 Document 25 Filed 10/21/14 Page 11 of 21 PageID #: 197
56. As a result of the Defendants use of Sock'n Bop and the Sock'n Bop
Logo, Mr. Harwell has suffered damages in an amount to be determined at trial.
COUNT II: FEDERAL UNFAIR COMPETITION AND FALSE DESIGNATION
OF ORIGIN

57. The Plaintiffs repeat and incorporate by reference the allegations of
paragraphs 1 through 56 as though fully set forth herein.
58. The Mark has been in continuous use since at least 1996 in connection
with inflatable boxing pillows.
59. The Classic Socker Bopper Combined Logo has been in use since 1996,
and, although Big Time has recently introduced a new combined logo, the Classic Socker
Bopper Combined Logo is still used in connection with sales in the U.S. of SOCKER
BOPPER inflatable boxing pillows and is still very much in evidence on the internet,
on Big Time's website and in the stream of commerce. Big Time does not intend to
abandon the Classic Socker Bopper Combined Logo.
60. Mr. Harwell is the owner of the Mark and Classic Socker Bopper
Combined Logo in connection with, among other things, inflatable boxing pillows.
61. As the exclusive licensee of the Mark in connection with the Goods, Big
Time has exclusive rights in the Mark in connection with, among other things, inflatable
boxing pillows.
62. As the exclusive licensee of the Classic Socker Bopper Combined Logo, Big
Time has exclusive rights in the Mark in connection with, among other things, inflatable
boxing pillows.
63. As shown in Exhibit C attached hereto, Buzz Bee, Buzz Bee HK and Target
are selling inflatable boxing pillows under the name Sockn Bop, using the Sockn Bop
12
Case 3:14-cv-01350 Document 25 Filed 10/21/14 Page 12 of 21 PageID #: 198
Combined Logo. On information and belief, these sales commenced no earlier than
2012.
64. Mr. Zimmerman oversaw the design, manufacture, packaging distribution
and sale of the Sockn Bop toys and directed Buzz Bee to cause the design,
manufacture and sale of the Sockn Bop toys.
65. The Defendants use of Sock'n Bop in connection with inflatable boxing
pillows will likely result in confusion, mistake or to deceive as to the affiliation of the
Defendants with the Plaintiffs, or as to the origin, sponsorship, or approval of Buzz Bees
Sock'n Bop inflatable boxing pillows.
66. The Defendants use of the Sock'n Bop Logo in connection with inflatable
boxing pillows will likely result in confusion, mistake or to deceive as to the affiliation of
Buzz Bee Toys with the Plaintiffs, or as to the origin, sponsorship, or approval of the
Defendants Sock'n Bop inflatable boxing pillows.
67. These uses of Sock'n Bop and the Sock'n Bop Logo constitute false
representation, false description and false designation of origin of Buzz Bees inflatable
boxing pillows in violation of 15 U.S.C. 1125(a).
68. As a result of the Defendants use of Sock'n Bop and the Sock'n Bop
Logo, the Plaintiffs have suffered damages in an amount to be determined at trial.
COUNT III: FEDERAL TRADE-DRESS INFRINGEMENT
69. The Plaintiffs repeat and incorporate by reference the allegations of
paragraphs 1 through 68 as though fully set forth herein.
70. An accurate depiction of the Socker Bopper Trade Dress and Classic
Socker Bopper Packaging is attached hereto as Exhibit B.
13
Case 3:14-cv-01350 Document 25 Filed 10/21/14 Page 13 of 21 PageID #: 199
71. The Socker Bopper Trade Dress consists of a combination of several
aesthetic, non-functional elements, including a squat cylindrical shape, a slightly
concave face, and a logo in a color that contrasts with that of the face and side.
72. The Socker Bopper Trade Dress consists of the non-functional, aesthetic
combination of these elements as well as the overall impression created by this
combination of elements.
73. Elements of the Socker Bopper Trade Dress were claimed by the now-
expired U.S. Design Patent No. D404,086, of which Mr. Harwell was the inventor
74. The Classic Socker Bopper Packaging consists of a combination of several
aesthetic, non-functional elements, including: an image of two children displaying the
inflatable boxing pillows, the image taking up the lower two-thirds of the box front; the
Classic Socker Bopper Combined Logo clearly displayed on one of the pictured SOCKER
BOPPER toys; and the Classic Socker Bopper Combined Logo set immediately above
the childrens heads, with the Classic Socker Bopper Combined Logo itself consisting of
the non-functional elements of Socker Boppers set in an amusing, off-kilter font, in
front of a stylized explosion in a color that contrasts with the colors of the lettering and
the box background.
75. The Classic Socker Bopper Packaging consists of the non-functional,
aesthetic combination of these elements as well as the overall impression created by this
combination of these elements.
76. The Socker Bopper Trade Dress and Classic Socker Bopper Packaging have
been in use since 1996.
14
Case 3:14-cv-01350 Document 25 Filed 10/21/14 Page 14 of 21 PageID #: 200
77. Although Big Time has introduced a new trade dress for the packaging of
its SOCCER BOPPER toys, the Classic Socker Bopper Packaging is still used in
connection with sales in the U.S. of SOCKER BOPPER inflatable boxing pillows and is
still very much in evidence on the internet, on Big Time's website and in the stream of
commerce. Big Time has no intention of abandoning the Classic Socker Bopper
Packaging.
78. Through the Plaintiffs extensive use of the Socker Bopper Trade Dress and
the Classic Socker Bopper Packaging in connection with its SOCKER BOPPER
inflatable boxing pillows, consumers have come to identify the Socker Bopper Trade
Dress and the Classic Socker Bopper Packaging with Big Time and its SOCKER
BOPPER inflatable boxing pillows. The Classic Socker Bopper Packaging has thus
acquired secondary meaning in the marketplace.
79. Mr. Harwell is the owner of the Socker Bopper Trade Dress and Classic
Socker Bopper Packaging in connection with, among other things, inflatable boxing
pillows.
80. Big Time is the exclusive licensee of the Socker Bopper Trade Dress and
the Classic Socker Bopper Packaging. The Socker Bopper Trade Dress and the Classic
Socker Bopper Packaging were originally developed and owned by Big Time, which in
2012 assigned it to Mr. Harwell and received from Mr. Harwell an exclusive license to
use the Classic Socker Bopper Packaging.
81. As shown in Exhibit C attached hereto, the Defendants are selling a line of
inflatable boxing pillows using the Sockn Bop Product Design and Buzz Bee Package
Design. On information and belief, these uses commenced no earlier than 2012.
15
Case 3:14-cv-01350 Document 25 Filed 10/21/14 Page 15 of 21 PageID #: 201
82. The Defendants use of the the Sockn Bop Product Design and the Buzz
Bee Package Design in connection with inflatable boxing pillows will likely result in
confusion, mistake or to deceive as to the affiliation of the Defendants with the
Plaintiffs, or as to the origin, sponsorship, or approval of Buzz Bees Sock'n Bop
inflatable boxing pillows.
83. The Defendants use of the the Sockn Bop Product Design and the Buzz
Bee Package Design constitutes false representation, false description and false
designation of origin of Buzz Bees inflatable boxing pillows in violation of 15 U.S.C.
1125(a).
84. As a result of the Defendants use of the Sockn Bop Product Design and
the Buzz Bee Package Design, the Plaintiffs have suffered damages in an amount to be
determined at trial.
COUNT IV: VIOLATION OF THE TENNESSEE CONSUMER PROTECTION
ACT

85. The Plaintiffs repeat and incorporate by reference the allegations of
paragraphs 1 through 84 as though fully set forth herein.
86. The Defendants use of Sock'n Bop, the Sock'n Bop Logo, the Sockn Bop
Product Design and the Buzz Bee Package Design in connection with inflatable boxing
pillows is an unfair and deceptive trade practice prohibited by the Tennessee Consumer
Protection Act, Tenn. Code Ann. 4718104, including but not limited to the
following:
a. The Defendants use of Sock'n Bop, the Sock'n Bop Logo the
Sockn Bop Trade Dress and the Buzz Bee Package Design in connection with inflatable
16
Case 3:14-cv-01350 Document 25 Filed 10/21/14 Page 16 of 21 PageID #: 202
boxing pillows constitutes a false passing off goods as those of another in violation of
Tenn. Code Ann. 4718104(b)(1).
b. The Defendants use of Sock'n Bop, the Sock'n Bop Logo, the
Sockn Bop Trade Dress and the Buzz Bee Package Design in connection with inflatable
boxing pillows is likely to lead to substantial consumer confusion or misunderstanding
as to the source, sponsorship, approval or certification of goods offered by the
Defendants in violation of Tenn. Code Ann. 4718104(b)(2).
c. The Defendants use of Sock'n Bop, the Sock'n Bop Logo and the
Buzz Bee Package Design in connection with inflatable boxing pillows constitutes an act
or practice that is deceptive to the consumer and others in violation of Tenn. Code Ann.
4718104(b)(27).
COUNT V: COMMON-LAW UNFAIR COMPETITION
87. The Plaintiffs repeat and incorporate by reference the allegations of
paragraphs 1 through 86 as though fully set forth herein.
88. The Defendants use of Sock'n Bop, the Sock'n Bop Logo, the Sockn Bop
Trade Dress and the Buzz Bee Package Design in connection with inflatable boxing
pillows has likely caused and will continue to be likely to cause consumers to be
deceived as to the origin or sponsorship of the goods offered by the Defendants, in
violation of Tennessee common law.
RELIEF REQUESTED
WHEREFORE, Plaintiffs Big Time Toys, LLC, and Sam Harwell pray for
judgment against Buzz Bee Toys, Inc.; Buzz Bee Toys (HK) Co., Ltd.; Jeff Zimmerman;
and Target Corp. as follows:
17
Case 3:14-cv-01350 Document 25 Filed 10/21/14 Page 17 of 21 PageID #: 203
1. A preliminary and permanent injunction against each Defendant and their
servants, agents, employees, successors and assigns and all persons acting in concert
with each Defendant, enjoining them from:
a. marketing, selling, distributing, supplying or delivering inflatable
boxing pillows or other inflatable toys using Sockn Bop, the Sockn Bop Logo, the
Sockn Bop Trade Dress and the Buzz Bee Package Design or any other mark similar to
SOCKER BOPPER or the Classic Socker Bopper Combined Logo, or any other trade
dress confusingly similar to the Socker Bopper Trade Dress or the Classic Socker Bopper
Packaging;
b. using or distributing any advertising or promotional materials,
electronic or otherwise, in connection with inflatable boxing pillows or other inflatable
toys that use or contain Sockn Bop, the Sockn Bop Logo, Sockn Bop Product Design
or the Buzz Bee Package Design or any other mark confusingly similar to SOCKER
BOPPER or the Classic Socker Bopper Combined Logo, or any other trade dress
similar to the Socker Bopper Trade Dress or the Classic Socker Bopper Packaging.
2. An order requiring each Defendant to deliver up to Big Time for
destruction all goods, signs, advertisements, literature, business forms, cards, labels,
packages, wrappers, pamphlets, brochures, receptacles, and any other written or printed
material in Defendants possession or under its control that bear Sockn Bop, the
Sockn Bop Logo, the Sockn Bop Product Design, the Buzz Bee Package Design or any
other mark confusingly similar to SOCKER BOPPER or the Classic Socker Bopper
Combined Logo, or any other trade dress confusingly similar to the Socker Bopper Trade
Dress or the Classic Socker Bopper Packaging.
18
Case 3:14-cv-01350 Document 25 Filed 10/21/14 Page 18 of 21 PageID #: 204
3. An order requiring each Defendant to account for profits made by the
Defendant as a result of sales of inflatable boxing pillows, or other inflatable toys, made
in connection with Sockn Bop, the Sockn Bop Logo, the Sockn Bop Product Design,
the Buzz Bee Package Design or any other mark similar to SOCKER BOPPER or the
Classic Socker Bopper Combined Logo, or any other trade dress confusingly similar to
the Socker Bopper Trade Dress or the Classic Socker Bopper Packaging.
4. An award to Big Time and Mr. Harwell of damages sustained by Big Time
as a result of the acts complained herein, to be trebled in accordance with 15 U.S.C.
1117 and with the Tennessee Consumer Protection Act.
5. An award to Big Time and Mr. Harwell of their attorneys fees pursuant to
15 U.S.C. 1117 and to the Tennessee Consumer Protection Act.
6. An award of punitive damages to Big Time and Mr. Harwell for the
Defendants deception of consumers and violation of the Plaintiffs rights.
7. An award of pre- and post-judgment interest.
8. A trial by jury on all issues so triable.
9. Such other and further relief as the Court may deem appropriate and
equitable.
Dated: October 21, 2014.
Respectfully submitted,


/s/Richard G. Sanders
Richard G. Sanders (Tenn BPR No. 23875)
Aaron & Sanders, PLLC
11 Lea Ave., Ste. 606
Nashville, TN 37210
(615) 7341188
Fax (615) 2509807
19
Case 3:14-cv-01350 Document 25 Filed 10/21/14 Page 19 of 21 PageID #: 205
rick@aaronsanderslaw.com

Counsel for Big Time Toys, LLC, and Sam
Harwell


PLAINTIFFS DEMAND A JURY ON ALL ISSUES SO TRIABLE.

20
Case 3:14-cv-01350 Document 25 Filed 10/21/14 Page 20 of 21 PageID #: 206
CERTIFICATE OF SERVICE

I hereby certify that on the 21st day of October, 2014, a true and correct copy of the
foregoing has been served via the Electronic Case Filing system of the United States
District Court for the Middle District of Tennessee, which will automatically send email
notification of such filing to the following attorneys of record:

John OMalley
Michael F. Snyder
John P. Sullivan
VOLPE & KOENIG, P.C.
30 S. 17th St., 18th Fl.
Philadelphia, PA 19103

Robb S. Harvey
WALLER LANSDEN DORTCH & DAVIS, LLP
511 Union St., Ste. 2700
Nashville, TN 37219




/s/Richard G. Sanders
Counsel for the Plaintiff
21
Case 3:14-cv-01350 Document 25 Filed 10/21/14 Page 21 of 21 PageID #: 207