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USDC IN/ND case 1:18-cv-00070 document 1 filed 03/26/18 page 1 of 17

UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

VERA BRADLEY DESIGNS,INC.,

Plaintiff,
Case No.
vs.

JENNIFER DENNY,an individual;


AUSTIN DEVIN 2 DENNY BOYS,LLC;
DARLENE NICHOLAS,an individual;
AMANDA WHITFIELD,an individual;
and ILENE SIMPSON,an individual.

Defendants.

VERIFIED COMPLAINT FOR DAMAGES AND EQUITABLE RELIEF


AND JURY DEMAND

INTRODUCTION

This is an action for trademark counterfeiting, trademark infringement, unfair

competition, false designation of origin, and copyright infringement based on the illegal sale of
counterfeit Vera Bradley® goods by Defendants. Defendants have violated numerous federal and
state laws in the commission oftheir counterfeiting, which has occurred since at least as early as

January 2016, and potentially even earlier. Plaintiff has repeatedly demanded that Defendants

cease selling counterfeit goods and infringing its trademark to no avail. Defendant Jennifer

Denny even continued to sell counterfeit Vera Bradley® products after her lawyer represented in
writing that she would stop all such sales. As a result of Defendants' failure to fully and
permanently cease infringing Plaintiff's rights. Plaintiff is compelled to seek assistance from this
Court in the form of injunctive, monetary, and other relief against Defendants for the reasons set

forth below.
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THE PARTIES

1. Plaintiff Vera Bradley Designs, LLC("Vera Bradley" or "Plaintiff') is a

corporation organized and existing under the laws ofthe State of Indiana with its principal place

of business located at 12420 Stonebridge Road, Roanoke,Indiana 46783. Vera Bradley is known

internationally for its unique designs for bags, luggage, and accessories. Vera Bradley is the

owner of over 50 federal trademark registrations and pending applications for the marks, VERA

BRADLEY®,VB VERA BRADLEY®,and variations thereof,(the"VERA BRADLEY

Marks"). The VERA BRADLEY Marks are used, and federally registered, in Class 18 for bags,

purses, backpacks, luggage, and accessories,(the"VERA BRADLEY Goods"). Vera Bradley


also owns copyright registrations for over 900 of its unique fabric designs.
2. Defendant Jennifer Denny is, upon information and belief, a citizen and resident

of the State of Indiana with an address of6051 North State Road 109, Wilkinson, Indiana 46186.

3. Defendant Austin Devin 2 Denny Boys, LLC,is, upon information and belief, a

limited liability company organized and existing under the laws ofthe State of Indiana with its
principal place of business located at 6051 North State Road 109, Wilkinson, Indiana 46186.
Defendant Jennifer Denny owns Austin Devin 2 Denny Boys, LLC.

4. Defendant Darlene Nicholas is, upon information and belief, a citizen and resident

ofthe State of Indiana with an address of6140 W. Water St., Knightstown,IN 46148.

5. Defendant Amanda Whitfield is, upon information and belief, a citizen and

resident of the State of Indiana with an address of 1161 West 600 North, Greenfield, Indiana

46140.

6. Defendant Ilene Simpson is, upon information and belief, a citizen and resident of
the State of Indiana with an address of 1161 West 600 North, Greenfield, Indiana 46140.
USDC IN/ND case 1:18-cv-00070 document 1 filed 03/26/18 page 3 of 17

NATURE OF THE ACTION; JURISDICTION OF THE COURT

7. This is an action for trademark counterfeiting, trademark infringement,false

designation of origin, deceptive trade practices, and unjust enrichment under the Lanham Act, 13

U.S.C. § \ \\A et seq., the Copyright Act, 17 U.S.C. § 501 et seq., Ind. Code § 24-5-0.5-3 et seq.,

and the common law.

8. This Court has jurisdiction over the subject matter of this action pursuant to

15U.S.C. § 1121and28 U.S.C. §§ 1331 and 1338(a).

9. This Court has personal jurisdiction over all Defendants because they either(1)

are a citizen ofthe State ofIndiana,(2)are incorporated in and maintain continuous and

systematic business connections with the State of Indiana; or(3)transacted business and

committed tortious acts within and directed to the State of Indiana, and Vera Bradley's claims

arise from those activities.

10. Venue is proper in this district pursuant to28U.S.C. § 1391 because a substantial

part ofthe events giving rise to Vera Bradley's claims herein occurred in the Northern District of
Indiana, because Defendants are subject to this Court's personal jurisdiction with respect to this

civil action, and because Vera Bradley maintains its headquarters and conducts business under its

marks at issue in this matter in this judicial district. Further, Vera Bradley has been, and

continues to be, harmed by Defendants actions in this district.

FACTUAL BACKGROUND

11. Vera Bradley was founded in 1982,and since then, has become a household name

for unique, high-quality bags,luggage, and accessories. VERA BRADLEY® Goods are instantly

recognizable because of their creative patterns. Moreover, Vera Bradley customers have come to
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expect, and demand,only the highest quality for a product branded with the VERA BRADLEY®

name.

12. Vera Bradley owns 35 federal trademark registrations, and 17 pending federal

trademark applications for its VERA BRADLEY® Marks.(Copies of the registration certificates

and applications can be made available to the Court upon request.)

13. Similarly, Vera Bradley has registered its unique patterns—a staple of the VERA

BRADLEY® brand—^with the Copyright Office. It currently holds more than 900 copyright

registrations for these patterns and designs.

14. Vera Bradley currently employs over 2,600 people, and eams nearly $500 million

in annual net revenue for the sale of its VERA BRADLEY® Goods. Very Bradley sells its

products in nearly 160 branded retail stores, through approximately 2,400 specialty gift retailers

and approximately 700 department stores, certain key accounts, and on its website,

www.verabradlev.com.

15. A unique attribute of Vera Bradley's business model is that it tightly controls who

is authorized to sell VERA BRADLEY® Goods online. Vera Bradley does not allow its

distributors to sell VERA BRADLEY® Goods online. Department stores are allowed to sell on

their own website and some specialty accounts are able to sell on their own website if they are

approved by Vera Bradley to do so. Vera Bradley also allow Zappos and eBags to sell on

Amazon. However, Vera Bradley does not allow any of our accounts to sell on eBay and this is

the venue where Defendants have sold much of their counterfeit product.

16. Vera Bradley has taken numerous steps to prevent counterfeiting of its VERA

BRADLEY® Goods, including cooperating with companies such as eBay and Amazon to stop

the advertising and sale of counterfeit goods. In fact, Amazon and Vera Bradley have recently
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filed a federal district court action in the Western District of Washington against other

counterfeiting defendants.

DEFENDANTS* SALE OF COUNTERFEIT VERA BRADLEY® GOODS

17. Defendants have established and operated, or are currently operating, various

eBay accounts through which they advertise, distribute, offer for sale, and sell counterfeit VERA

BRADLEY® Goods, and goods that infringe the VERA BRADLEY® marks and Vera Bradley's

copyrighted designs:

a. Seller account,"austindevin," belongs to and is held in the name of

Defendant Jennifer Denny.

b. Seller account "darlennicholaS" belongs to and is held in the name of

Defendant Darlene Nicholas

c. Seller account "twosisterinlaws" belongs to and his held in the name of

Defendant Amanda Whitfield.

d. Seller account "collegetime" belongs to and his held in the name of

Defendant Ilene Simpson.

e. Seller account "collegefund31" belongs to and his held in the name of

Defendant Jennifer Denny.

18. eBay's "Intellectual Property and the VeRO Program" policy explicitly states

that "Replicas, counterfeit items and unauthorized copies" are not allowed on eBay. Also

identified as "not allowed" in eBay's "Replicas, Counterfeit Items, and Unauthorized Copies

Policy," are "counterfeits, fakes, or replicas of brand name items(for example, a purse bearing

the Chanel name or logo that wasn't made by Chanel)." Sellers must follow these guidelines, or

may otherwise be subjected to a reinge of consequences, such as the item being removed from
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eBay, limits placed on the seller's buying and selling privileges, and suspension ofthe seller's

account.

19. Defendants' conduct in listing and selling counterfeit VERA BRADLEY® Goods

violated eBay's seller policies.

20. Defendant advertised, marketed, distributed, offered for sale, and sold counterfeit

products that they claimed to be genuine VERA BRADLEY® Goods in violation offederal,

state, and common law, and eBay's seller policies. At no time has Vera Bradley licensed or

authorized Defendants to manufacture, import, or sell products bearing the VERA BRADLEY®

Marks,or to use or exploit the intellectual property rights of Vera Bradley in manufacturing,

marketing, distributing, offering for sale, or selling products bearing the VERA BRADLEY®

Marks.

21. Over the last several years Vera Bradley monitored Defendants' sales on eBay

and learned that Defendants were advertising, offering for sale, and selling counterfeit VERA

BRADLEY® Goods on eBay.

22. Vera Bradley learned that Defendants were operating under several eBay seller

accounts, including: austindevin, collegefimdS 1, twosisterinlaws, darennicholaS and

collegetime, among others.

23. Vera Bradley purchased some ofthe claimed Vera Bradley products that

Defendants listed for sale on eBay under their various account names in order to determine the

authenticity of the goods.

24. By way of limited example only, Vera Bradley purchased the following items

from Defendants that Vera Bradley determined to be counterfeit based on visual inspection ofthe

purchased products or for the reasons stated:


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a. Bohemian Chevron Lunch Bunch—Purchased on 12/1/2016 from seller

account "austindevin." Vera Bradley determined this was counterfeit because Vera Bradley

never made this product. Vera Bradley determined this product to be advertised and sold by

Defendant Denny because she owns and operates under the "austindevin" user account name.

b. Vera Tote Disney Medallion—^Purchased on 12/6/2016 from seller

account "austindevin." Vera Bradley knows this product to be advertised and sold by Defendant

Denny because she owns and operates under the "austindevin" user account name.

c. Mini Hipster Disney Medallion—Purchased on 5/10/2017 from seller

account "darlennicholaS." Vera Bradley knows this product to be advertised and sold by

Defendant Darlene Nicholas because she owns and operates under the "darlennicholaS" user

account name.

d. Mini Hipster Disney Medallion—Purchased on 6/30/2017 from seller

account "twosisterinlaws." Vera Bradley knows this product to be advertised and sold by

Defendant Amanda Whitfield because she owns and operates under the "twosisterinlaws" user

account name.

e. Large Duffel Disney Medallion—Purchased on 2/12/2018 from seller

account "austindevin." Vera Bradley knows this product to be advertised and sold by Defendant

Denny because she owns and operates under the "austindevin" user account name.

25. On January 27,2017, Vera Bradley's in-house counsel sent a cease and desist

letter to Defendant Denny, demanding that she stop selling all VERA BRADLEY® products and
reveal her source of counterfeit goods. A true and correct copy of this correspondence is

attached as Exhibit A. Defendant Denny ignored this letter and did not respond and continued to

sell counterfeit goods on eBay.


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26. Because Denny did not abide by Vera Bradley's demand, Vera Bradley retained

outside counsel, who by letter dated July 26, 2017, wrote to all Defendants demanding that they

cease and desist from selling any products identified as Vera Bradley that they did not directly

purchase from an authorized Vera Bradley retailer or directly from an authorized Vera Bradley

distribution channel. A true and correct copy of this letter is attached as Exhibit B.

27. By letter dated August 1, 2017, Defendants responded through counsel, and

agreed immediately and unconditionally to cease and desist from selling unauthorized Vera

Bradley products and either deactivate or remove from all of their identified eBay accounts any

Vera Bradley products sourced from unauthorized channels. Significantly, Defendants' counsel

stated,"Mrs. Denny commits that such removal of suspect products is a permanent status for all

current and future online sales accounts." A true correct copy ofthis letter is attached as Exhibit

C.

28. After receipt ofthe August 1,2017 letter from Defendants' counsel, Vera Bradley

learned that Defendants were continuing to sell counterfeit VERA BRADLEY® goods on eBay

during the parties' attempt to reach a settlement on all issues.

29. Defendants' sale of counterfeit VERA BRADLEY® Goods, and goods bearing

the VERA BRADLEY® Marks without Vera Bradley's authorization enables Defendants to

trade on and receive the benefit of the goodwill that Vera Bradley has built in its brand at great

effort and expense since 1982.

30. Defendants' sale of counterfeit VERA BRADLEY® Goods, and goods bearing

the VERA BRADLEY® Marks without Vera Bradley's authorization, unjustly enriches

Defendants at Vera Bradley's expense.


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31. Defendants' sale of counterfeit VERA BRADLEY® Goods, and goods bearing

the VERA BRADLEY® Marks without Vera Bradley's authorization, takes from Vera Bradley

the ability to control the nature and quality of products offered for sale and sold under Vera

Bradley's Marks.

32. Defendants' sale of counterfeit VERA BRADLEY® Goods, and goods bearing

the VERA BRADLEY® Marks without Vera Bradley's authorization, is causing and will

continue to cause irreparable injury to Vera Bradley's brand, and to the consuming public,for

which there is no adequate remedy at law. Unless Defendants are immediately and permanently

enjoined from selling counterfeit VERA BRADLEY® Goods, Vera Bradley will continue to be
harmed by Defendants' willful acts.

CLAIM I
(Trademark Infringement, 15 U.S.C.§ 1114)

33. Paragraphs 1 through 32 are incorporated by reference herein.

34. Defendants' activities constitute trademark infringement of the VERA

BRADLEY® Marks as described in the paragraphs above.

35. Defendants have and continue to use, the VERA BRADLEY® Marks without

Vera Bradley's consent.

36. Defendants' have and continue to advertise, sell, and offer for sale, counterfeit

goods under the guise that these goods are genuine VERA BRADLEY® Goods, when in fact
they are not.

37. Defendants' use of the VERA BRADLEY® Marks as described in the paragraphs

above has deteriorated and will continue to deteriorate the goodwill Vera Bradley has built in the

VERA BRADLEY® Marks.


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38. The infringing goods that Defendants have and continue to advertise, market,

offer for sale, distribute, and sell are likely to cause confusion, mistake, or deception as to their

source, origin, or authenticity.

39. Defendants' activities are likely to lead the public to conclude, contrary to fact,

that the infringing goods are somehow licensed, franchised, sponsored, authorized, or otherwise

approved by Vera Bradley. Such continued use of the VERA BRADLEY® Mark,and sale of
counterfeit goods, infringes Vera Bradley's exclusive rights in the VERA BRADLEY® Marks
under the Lanham Act, 15 U.S.C. § 1114.

40. The willful nature of Defendants' unlawful conduct renders this an "exceptional

case" within the meaning of 15 U.S.C. § 1117(a).

41. Pursuant to 15 U.S.C. §§ 1117(a)and (b), Vera Bradley is entitled to recover its

actual damages. Defendants' profits attributable to the infringement, and treble damages and
attorneys' fees. The amount of money due from Defendants to Vera Bradley is unknown to Vera
Bradley and cannot be ascertained without a detailed accounting by Defendants ofthe precise
number of units of infringing goods advertised, marketed, distributed, offered for sale, or sold by
Defendants. Alternatively, Vera Bradley is entitled to statutory damages under 15 U.S.C. §

1117(c).

42. Vera Bradley is further entitled to injunctive relief, including an order

impounding all infringing materials because Vera Bradley has no adequate remedy at law for
Defendants' wrongful conduct.

CLAIM II
(Copyright Infringement—17 U.S.C.§ 501)

43. Paragraphs 1 through 42 are incorporated by reference herein.

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44. Vera Bradley is the sole owner ofthe designs protected by the copyrighted images

identified in this Complaint, and ofthe copyright registration identified in Exhibit B to this

Complaint.

45. Defendants have infringed Vera Bradley's copyrights by copying, distribution,

publicly displaying, and/or creating derivative works ofthe designs without Vera Bradley's

authorization.

46. Defendants acted willfully in this regard, or at a minimum with willful blindness

to, or in reckless disregard of, Vera Bradley's copyrights.

47. Defendants have and continue to infringe Vera Bradley's copyrights in its

designs.

48. As a result, Vera Bradley is entitled to recover its actual damages and Defendants'

profits attributable to the infiingement. In the alternative, Vera Bradley is entitled to recover
statutory damages under 17 U.S.C. §504(c).

49. Vera Bradley is further entitled to injunctive relief, including an order

impounding all infringing materials because Vera Bradley has no adequate remedy at law for
Defendants' wrongful conduct.

CLAIM III
(False Designation of Origin and Unfair Competition, 15 U.S.C.§ 1125(a))

50. Paragraphs 1 through 49 are incorporated by reference herein.

51. Defendants' unauthorized use in commerce of the VERA BRADLEY® Marks

and Vera Bradley's copyrighted designs is likely to cause confusion, mistake, or to deceive
consumers as to the origin, sponsorship, or approval of Defendants' services by Vera Bradley.

52. Moreover, Defendants' unauthorized use and misuse of Vera Bradley's name

and/or imitation designs (including displays, logos, icons, graphic designs, and/or packaging

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virtually indistinguishable from genuine VERA BRADLEY® Goods)in connection with

Defendants' commercial advertising or promotion, including in connection with the offering for

sale and sale of coimterfeit VERA BRADLEY® Goods in interstate commerce, constitutes

infringement under 15 U.S.C. § 1125(a).

53. Defendants have used, and continue to use, the VERA BRADLEY® Marks to

compete unfairly with Vera Bradley and to deceive its customers.

54. Defendants' unauthorized use ofthe VERA BRADLEY® Marks is likely to cause

confusion among consumers as to the origin of goods bearing the Marks, as well as to create an

association between Vera Bradley and Defendants when no such connection exists. Such

unauthorized use ofthe VERA BRADLEY® Marks constitutes false designation of origin and

unfair competition in violation of 15 U.S.C. § 1125(a).

55. Defendants' unauthorized use ofthe VERA BRADLEY® Marks negates the

goodwill that Vera Bradley has built in its VERA BRADLEY® Marks since its first use in 1982.
56. As a result of Defendants' actions, Vera Bradley has suffered and is continuing to

suffer irreparable injury, and has incurred and is continuing to incur monetary damage in an
amount yet to be determined.

57. Defendants' willful misconduct renders this an "exceptional case" within the

meaning of 15 U.S.C. §1117(a).

COUNT IV
(Unfair and Deceptive Trade Practices,Ind. Code § 24-5-0.5-3)

58. Paragraphs 1 through 57 are incorporated by reference herein.

59. Defendants have represented that the counterfeit VERA BRADLEY® Goods are

sponsored or approved by Vera Bradley when, in fact, they were not, and Defendants knew or

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should reasonably have known that the goods were not sponsored or approved by Vera Bradley,

in violation of Ind. Code § 24-5-0.5-3.

60. As a result of Defendants' actions, Vera Bradley has suffered and is continuing to

suffer irreparable injury, and has incurred and is continuing to incur monetary damage in an

amount yet to be determined.

61. As a result of Defendant's actions, Vera Bradley is entitled to attorneys' fees

pursuant to Ind. Code § 24-5-0.5-04.

COUNT V
(Common Law Unfair Competition)

62. Paragraphs 1 through 61 are incorporated by reference herein.

63. Defendants' unauthorized use of the VERA BRADLEY® Marks creates an

association in the minds of consumers between Defendants and Vera Bradley when no such

connection exists.

64. Defendants have usurped the goodwill that Vera Bradley has built up in its VERA

BRADLEY® Marks over the years and has benefited therefrom.

65. Defendants' conduct constitutes unfair competition in violation of Vera Bradley's

rights under the common law.

66. As a result of Defendants' actions, Vera Bradley has suffered and is continuing to

suffer irreparable injury, and has incurred and is continuing to incur monetary damage in an
amount yet to be determined.

67. Defendants' acts were taken in willful, deliberate and/or intentional disregard of

Vera Bradley's rights.

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COUNT VI
(Unjust Enrichment)

68. Paragraphs 1 through 67 are incorporated by reference herein.

69. Defendants' actions as alleged above constitute unjust enrichment of Defendants

at Vera Bradley's expense, in violation ofthe common law.

PRAYER FOR RELIEF

WHEREFORE,Vera Bradley requests that the Court enter an order and judgment against

Defendants:

A. Permanently and preliminarily enjoining and restraining Defendants,their

officers, agents, representatives, servants, employees, successors and assigns, and all others

acting in active concert or participation with them from:

1) advertising, marketing, distributing, offering for sale, or selling any goods


bearing the VERA BRADLEY®,that purports to be associated,

sponsored, or authorized by Vera Bradley, or that otherwise infnnges Vera


Bradley's intellectual property;

2) assisting, aiding or abetting any other person or business entity engaged in


or performing any ofthe activities referred to in subparagraph 1 above;

B. That the Court enterjudgment in Vera Bradley's favor on all claims brought by it;
C. That the Court enter an order pursuant to 15 U.S.C. § 1116 and/or 17 U.S.C. §

503 impounding all counterfeit and infringing goods bearing any ofthe VERA BRADLEY®
Marks or that otherwise infringe Vera Bradley's copyright, and any related item, including

business records, that are in Defendants' possession or under their control;

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D. That the Court enter an order requiring Defendants to provide Vera Bradley a full

and complete accounting of all sales made by Defendants over the last six years and the

amounts due and owed to Vera Bradley as a result of Defendants' unlawful actions;

E. That Defendants be required to pay all general, special, actual, and statutory

damages which Vera Bradley has sustained, or will sustain, as a consequence of Defendants'

lawful acts, and that such damages be enhanced, doubled, or trebled as provided for by 15

U.S.C. §1117(b), or otherwise allowed by law;

F. Awarding Vera Bradley its reasonable attorneys' fees, costs, and disbursements

incurred in this action; and

G. Awarding Vera Bradley such other and further relief as this Court deemsjust and

proper.

DEMAND FOR JURY TRIAL

Plaintiff, by counsel, respectfully requests a jury trial for all issues deemed triable.

Respectfully submitted.

Dated: March 26,2018 s/Mark D. Scudder


Mark D. Scudder(#23130-02)
(mark.scudder@btlaw.com)
BARNES & THORNBURG LLP
888 S. Harrison Street, Suite 600
Fort Wayne,IN 46802
Telephone: (260)425-4618
Facsimile: (260)424-8316

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Michael R. Gray (#175602), hac vice pending


GRAY,PLANT,MOOTY,
MOOTY & BENNETT,P.A.
500 IDS Center
80 South Eighth Street
Minneapolis, Minnesota 55402
Telephone:(612)632-3078
Facsimile:(612)632-4078
michael.grav@.gpmlaw.com

ATTORNEYS FOR PLAINTIFF

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VERIFICATION

STATE OF INDIANA

COUNTY OF ALLEN

I, MARK DELY,am the Chief Administrative and Legal Officer for Vera Bradley

Designs,Inc. and 1 certify on personal knowledge that the allegations made in this Verified
Complaint are true to the best of my knowledge,information, and belief.

Mark C. Dely
Ar r n*.iv K

Sworn to before me and subscribed in my presence by MARK DELY on this 26th day of

March 2018.

Notary Public

DEBORAH A. WILSON
S«lf' •'' .
GP:48I9-I636<S664 vl Nottry PuBSe •Slttt ol IniOtna
Aftm County
jjfCenwtiutoji&gln^^

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