Rothy's v. JKM Techs. - Complaint

08/16/2018
O IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF VIRGINIA
(CHARLOTTESVILLE DIVISION)
ROTHY’S, INC.,
Plaintiff,
Civil Action No. 3:18CV00067
v.
JURY TRIAL DEMANDED
JKM TECHNOLOGIES, LLC d/b/a OESH SHOES
&
DR. CASEY KERRIGAN d/b/a OESH SHOES,
Defendants.
COMPLAINT FOR PATENT INFRINGEMENT,

TRADE DRESS INFRINGEMENT, AND UNFAIR COMPETITION
Plaintiff Rothy’s, Inc., by and through its undersigned attorneys, hereby files this Original
Complaint against Defendants JKM Technologies, LLC d/b/a OESH Shoes and Dr. Casey
Kerrigan d/b/a OESH Shoes (hereinafter “Defendants”), and alleges as follow:
THE PARTIES
1. Plaintiff Rothy’s, Inc. (hereinafter “Rothy’s”) is a corporation organized and
existing under the laws of the State of Delaware and has its principal place of business in
California.
2. On information and belief, Defendant JKM Technologies, LLC d/b/a OESH
Shoes (hereinafter “OESH”) is a corporation organized and existing under the laws of the
Commonwealth of Virginia with its principal place of business at 525 Rookwood Place,
Charlottesville, Virginia 22903-4735.
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Case 3:18-cv-00067-GEC Document 1 Filed 08/16/18 Page 1 of 18 Pageid#: 1
3. On information and belief, Defendant Dr. Casey Kerrigan d/b/a OESH lives and
resides in the Commonwealth of Virginia and is d/b/a under the laws of the Commonwealth of
Virginia and has its principal place of business at 705 Dale Avenue, Suite E, Charlottesville,
Virginia 22903-5273.
4. On information and belief, Defendant JKM Technologies may be served with
process at their principal place of business: 525 Rookwood Place, Charlottesville, Virginia
22903-4735.
5. On information and belief, Defendant Dr. Casey Kerrigan may be served with
process at her principal place of business: 705 Dale Avenue, Suite E, Charlottesville, Virginia
22903-5273.
JURISDICTION AND VENUE
6. This is a civil action for: (i) infringement of United States Design Patent Nos.
D768,366, D804,156, and D805,276 (the “Rothy’s Design Patents”) arising under the Patent
Laws of the United States, Title 35, United States Code, § 271 et seq.; (ii) trade dress
infringement under § 43(a) of the U.S. Trademark Act of 1946, as amended (the “Lanham Act”)
15 U.S.C. § 1125(a); and (iii) unfair competition and false designation in violation of § 43(a) of
the Lanham Act 15 U.S.C. § 1125(a). Accordingly, this Court has subject matter jurisdiction
over this case pursuant to 28 USC §§ 1331 and 1338.
7. This Court has jurisdiction over this action under 28 U.S.C. § 1332. There is
complete diversity of citizenship between the parties to this action and the amount in controversy
exceeds $75,000, exclusive of interest and costs.
8. On information and belief, Defendants are a Virginia corporation, a Virginia
resident, have a business office in this Judicial District, does continuous and systematic business
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in this Judicial District, and have committed acts of patent infringement, trade dress
infringement, and unfair competition in this Judicial District. For these reasons, venue is proper
in this Court under 28 U.S.C. §§ 1391 (b), (c), and (d), and 1400(b).
FACTUAL BACKGROUND
9. Plaintiff Rothy’s (formerly known as CABH Holdings, LLC) was founded in
2012 and has what Business Insider describes as a “ravenous following” for its unique, novel,
sustainable, comfortable, and stylish shoes. Rothy’s footwear is elegantly designed and
seamlessly manufactured from recycled bottles using a proprietary 3D knitting process that
significantly reduces waste. Rothy’s has endeavored to repurpose more than 13 million plastic
bottles since its founding.
10. In 2012, Rothy’s began the design and development of its revolutionary industry
changing shoe titled the Flat (“The Flat”), a ballet type shoe that is the perfect shoe to take you
through a busy day, wear to the gym, to the office, or to after-work drinks.
11. On or about December 2015, The Flat was released by Rothy’s after more than
three and one-half years of research and development and at a great expense to Rothy’s.
Following its release, The Flat quickly gained success in the market, selling more than $40
million dollars of product, and earning a reputation with consumers for its design, the
comfortable fit and lightweight and extremely attractive aesthetic. Rothy’s has spent many years
and a vast amount of financial resources in the conception, design, intellectual property
protection, manufacture, marketing and sales of The Flat product.
12. Rothy’s The Flat product has a distinctive shape and design such that it is
recognized by consumers of footwear.
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13. The signature round toe with a distinctive pointed vamp, seamless 3D knitted
upper, slim profile and sleek outsole of The Flat constitutes the trade dress of Rothy’s The Flat.
14. As a result of Rothy’s revolutionary design and significant research and
promotional efforts, Rothy’s The Flat has received significant media attention from a variety of
national and global media sources. Indeed, news outlets have described Rothy’s The Flat as a
“favorite work shoe for women.” Connie Chen, Women in New York City and San Francisco are
obsessed with these comfortable flats made from recycled water bottles — here's what they feel
like, Business Insider (July 1, 2018) https://amp.businessinsider.com/rothys-comfortable-work-
flat-review-2018-6. Other news outlets have praised “that not only are these among the most
politically correct shoes on our beleaguered planet, they are also adorable.” Lynn Yaeger, The
Most Environmentally Friendly Shoes on the Planet Also Happen to Be the Cutest, Vogue
(August 17, 2016) https://www.vogue.com/article/rothys-shoes-chic-recycled-eco-friendly-
flats/amp. “Rothy’s ballet flats are elegant” which has led to “the shoes hav[ing] amassed a loyal
global clientele, many of whom can’t stop talking about them online and off.” Tariro Mzezewa,
What if Your Environmentally Correct Shoes Were Also Cute?, New York Times (June 6, 2017)
https://www.nytimes.com/2017/06/06/fashion/rothys-recycled-plastic-bottle-shoes.html. Rave
reviews have asserted that “[t]he flats are machine washable (!) and made from recycled
materials. They claim to be comfy like sneakers — oh, and also? They are really CUTE.” Natalie
Brown et al., We Tried The Washable Flats You're Seeing All Over Pinterest, Buzzfeed (June 21,
2017) https://www.buzzfeed.com/nataliebrown/rothys-flats-
review?utm_term=.odmjqKG5a#.xf5DpaWA4.
15. The shape and/or ornamental design of Rothy’s The Flat product is nonfunctional.
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16. By way of assignment, Rothy’s is the owner of all rights, title and interest in and
to United States Patent No. D768,366 (the “’D366 Patent”) for an ornamental design entitled
“Shoe.” The ’D366 Patent was duly issued on October 11, 2016, by the United States Patent and
Trademark Office, a copy of which is attached hereto as Exhibit 1. Such right, title and interest
includes, without limitation, the right to sue and receive damages for past, present and future
patent infringement.
“Shoe.” The ’D156 Patent was duly issued on December 5, 2017, by the United States Patent and
Trademark Office, a copy of which is attached hereto as Exhibit 2. Such right, title and interest
includes, without limitation, the right to sue and receive damages for past, present and future
patent infringement.
“Shoe.” The ’D276 Patent was duly issued on December 19, 2017, by the United States Patent
and Trademark Office, a copy of which is attached hereto as Exhibit 3. Such right, title and
interest includes, without limitation, the right to sue and receive damages for past, present and
future patent infringement.
19. On information and belief, on or about March 20, 2018, the Defendants or
someone acting on their behalf, purchased the Rothy’s The Flat product in the color/style “indigo
mini stripe” and it was shipped to Defendant JKM Technologies, LLC’s principal place of
business.
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20. On information and belief, with the Plaintiffs’ product in hand, Defendants began
reviewing, researching and copying the product that embodied the ornamental designs covered
by the ’D366 Patent, the ’D156 Patent and the ’D276 Patent, and willfully copied the trade dress
of The Flat.
21. On information and belief, on or about June 2018, the Defendants began
marketing, manufacturing, and offering for sale a product entitled “The Dream Flat by OESH”
(“The Dream Flat”), a shoe with a shape, design and look that is virtually identical to Rothy’s
The Flat product and the embodied ornamental design covered by the ’D366 Patent, the ’D156
Patent and the ’D276 Patent.
22. On information and belief, the similarity between the two products is so striking
that consumers seeing The Dream Flat product have been and will continue to be confused into
thinking that The Dream Flat product was related to the Rothy’s The Flat product. As such,
ordinary consumers are likely to be confused as to the source, sponsorship, affiliation or approval
relating to The Dream Flat product vis-à-vis Rothy’s and it’s The Flat product.
23. Defendants’ The Dream Flat product has an overall appearance that is confusingly
similar and substantially the same in the eyes of an ordinary observer, in view of the prior art, as
the designs claimed in the ’D366 Patent, the ’D156 Patent and the ’D276 Patent as demonstrated
by the side-by-side comparisons below:
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The ’D366 Patent The Infringing Product
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24. Defendants’ The Dream Flat product has an overall appearance that is confusingly
similar and substantially the same as the trade dress of Rothy’s The Flat product, as
demonstrated by the side-by-side comparison below:
The Patented Product – The Infringing Product –
Rothy’s The Flat The Dream Flat
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25. On information and belief, Defendants have gained profits by virtue of their offers
for sale of The Dream Flat product.
26. On information and belief, consumers viewing The Dream Flat product have
confused and will continue to confuse The Dream Flat product with Rothy’s The Flat product.
27. On information and belief, Defendants’ infringement has caused Rothy’s to suffer
harm, and as such, Rothy’s is entitled to damages
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COUNT I
INFRINGEMENT OF U.S. Patent No. D768,366
28. Rothy’s incorporates and re-alleges the allegations of Paragraphs 1 through 27
above as though fully set forth below.
29. Defendants’ The Dream Flat product falls within the scope of the claim of the
D768,366 Patent and therefore has infringed the patent in violation of 35 U.S.C. § 271, et seq.
30. Defendants have been and are still infringing the ’D366 Patent literally or under
the doctrine of equivalents by making, using, selling, and/or offering for sale in the United
States, and or importing into the United States, The Dream Flat product as identified in this
Complaint, which embodies the design covered by the ’D366 Patent.
damages, and as such, Rothy’s is entitled to damages pursuant to 35 U.S.C. §§ 284 and 289.
32. On information and belief, Defendants have gained profits by virtue of their
infringement of the ’D366 Patent. As such, Rothy’s is entitled to Defendants’ profits under 35
U.S.C. § 289.
33. On information and belief, Defendants’ infringement was and is willful, making
this an exceptional case under 35 U.S.C. §§ 284 and 285. As a result, Rothy’s is entitled to
increased damages and attorneys’ fees.
34. On information and belief, Defendants have caused irreparable damage and harm
to Rothy’s by its acts of infringement as described above and will continue said acts of
infringement unless enjoined by this Court under 35 U.S.C. §283.
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COUNT II
U.S.C. § 289.
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COUNT III
U.S.C. § 289.
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COUNT IV
INFRINGEMENT OF ROTHY’S TRADE DRESS
50. Rothy’s is the owner of the trade dress in and to The Flat product, with its
signature round toe with a distinctive pointed vamp, seamless 3D knitted upper, slim profile and
sleek outsole.
51. The shape and/or ornamental design of The Flat product as described above is
nonfunctional and has achieved secondary meaning in that it has come to be associated with
Rothy’s in the minds of consumers.
52. As such, Rothy’s The Flat product constitutes protectable trade dress pursuant to
Section 43(a) of the Lanham Act, 15 U.S.C. § 1125.
53. The shape, design and look of Defendants’ The Dream Flat product is confusingly
similar to Rothy’s The Flat product, and incorporates the distinctive features of The Flat product.
Therefore, the marketing and sale of Defendants’ The Dream Flat product constitutes the use in
commerce of false designations of origin, false or misleading descriptions or representations that
are likely to cause confusion and mistake and to deceive consumers as to the source or origin of
the Defendants’ The Dream Flat product or its affiliation, connection or association with Rothy’s
The Flat product or Rothy’s sponsorship or approval of Defendants’ The Dream Flat product. As
such, Defendants’ acts constitute trade dress infringement in violation of Section 43 of the
Lanham Act, 15 U.S.C. § 1125.
54. On information and belief, Defendants’ use as described above is deliberate and
willful.
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55. Defendants’ acts of infringement have caused both irreparable harm and monetary
damage to Rothy’s, and unless enjoined and restrained, will cause further irreparable harm,
leaving Rothy’s with no adequate remedy at law.
COUNT V
FEDERAL UNFAIR COMPETITION AND FALSE DESIGNATION
56. Rothy’s repeats and re-alleges the allegations of Paragraphs 1 through 55 of the
Complaint above as though fully set forth below.
57. Defendants’ acts, as described above, are likely to cause confusion or mistake or
to deceive consumers as to the affiliation, connection, or association of Defendants with Rothy’s
or as to the origin, sponsorship, or approval of Defendants’ The Dream Flat product by Rothy’s
in violation of Section 43(a) of the Lanham Act, 15 U.S.C. §1125(a).
58. Upon information and belief, Defendants’ acts of unfair competition, as described
above, are deliberate and willful and undertaken with the intent to misappropriate the goodwill
and reputation associated with Rothy’s The Flat product.
59. Defendants’ acts of infringement have caused both irreparable harm and monetary
damage to Rothy’s, and unless enjoined and restrained, will cause further irreparable harm,
leaving Rothy’s with no adequate remedy at law. By the foregoing acts, Defendants have
deceived and confused members of the public, and is likely to continue to do so unless restrained
and enjoined by this Court.
PRAYER FOR JUDGEMENT AND RELIEF
WHEREFORE, Rothy’s prays for a judgment against Defendants as follows:
60. For a finding that U.S. Design Patent No. D768,366 is valid and enforceable;
61. For a finding that Defendants have infringed U.S. Design Patent No. D768,366,
and that such infringement was willful;
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66. For an award of damages to Rothy’s against Defendants for infringement of U.S.
Design Patent No. D768,366, under 35 U.S.C. § 284;
69. In the event Rothy’s elects to recover damages under 35 U.S.C. § 284, an increase
of the sums awarded to Rothy’s to three times the actual damages, pursuant to 35 U.S.C. § 284;
70. An award of damages to Rothy’s against Defendants under 35 U.S.C. § 289 in the
amount of Defendants’ total profits for infringement of U.S. Design Patent No. D768,366;
73. For an order that Defendants, their agents, servants officers, directors, employees,
affiliates, attorneys, and all those acting in privity, active concert or participation with any of
them, and their parents, subsidiaries, divisions, successors and assigns who receive actual notice
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of the order and judgement by personal service or otherwise, be enjoined from making, using and
selling any product in violation of Rothy’s Design Patents Nos. D768,366, D804,156, and
D805,276;
74. That this case be deemed as exceptional under 35 U.S.C. § 285 due to the
intentional and willful infringement by Defendants, and an award be made to Rothy’s of its
attorneys' fees under 35 U.S.C. § 285;
75. A finding that the Defendants’ The Dream Flat product infringes the trade dress
of Rothy’s and is likely to cause confusion, deception, or mistake as to the source of The Dream
Flat product, or to dilute Rothy’s trade dress or its distinctive The Flat product;
76. For damages for infringing Rothy’s trade dress, including Defendants’ profits for
the unauthorized use of Rothy’s trade dress and for all damages sustained by Rothy’s on account
of Defendants’ infringement, and unfair competition and that those damages be trebled pursuant
to 15 U.S.C. § 1117;
77. For a finding that this is an exceptional case and an award of attorneys’ fees
pursuant to 15 U.S.C. § 1117;
78. That Defendants be ordered to pay Rothy’s for damages it has sustained as a
consequence of Defendants’ unfair competitive acts;
79. That Defendants be ordered to destroy any remaining inventory of infringing
products as well as any and all advertising and promotional materials, displays, marketing
materials, web pages and all other data or things relating to The Dream Flat product pursuant to
15 U.S.C. § 1118;
80. For an order requiring Defendants to turn over to Rothy’s all tooling and other
implements used to manufacture the infringing product;
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81. For a permanent injunction pursuant to 15 U.S.C. § 1116;
82. For an award of prejudgment and post-judgment interest and costs of suit to
Rothy’s; and
83. Such other and further relief as the Court deems proper and just for Counts I – V
of the Original Complaint.
DEMAND FOR JURY TRIAL
Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Rothy’s demands a trial by
jury on all issues triable by a jury.
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Dated: August 16, 2018 Respectfully submitted,
/s/ Dana J. Finberg
Dana J. Finberg (VSB No. 34977)

ARENT FOX LLP
55 Second Street, 21st Floor
San Francisco, CA 94105
(415) 757-5897
dana.finberg@arentfox.com
Michelle Mancino Marsh (Pro Hac Vice

pending)
Paul C. Maier (Pro Hac Vice pending)
ARENT FOX LLP
1301 Avenue of the Americas, 42nd Floor
New York, NY 10019
(212) 484-3900
michelle.marsh@arentfox.com
paul.maier@arentfox.com
Brian J. Stevens (Pro Hac Vice pending)

ARENT FOX LLP
1717 K Street, NW
Washington, DC 20006-5344
(202) 857-6000
brian.stevens@arentfox.com
Counsel for Plaintiff Rothy’s, Inc.
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Exhibit 1
Case 3:18-cv-00067-GEC Document 1-1 Filed 08/16/18 Page 1 of 8 Pageid#: 19

USOOD768366S
(12) United States Design Patent (10) Patent No.: US D768,366 S

Hawthornthwaite et al. (45) Date of Patent: Oct. 11, 2016
(54) SHOE D167,503 S * 8/1952 Diamant ........................ D2/923

D180,334 S * 5/1957 Keyes ........ D2/971
D190,900 S * 7/1961 Grossman D2/939
(71) Applicant: CABH Holdings, LLC, San Francisco, D247,932 S * 5/1978 Katz .......... D2/927
CA (US) D273,627 S * 5/1984 Huberman . ... D2,941
D499,865 S * 12/2004 Belley ... ... D2,969
(72) Inventors: Stephen P. Hawthornthwaite, San R992 s : '839. Evil a Wale
R388
Francisco, CA (US), W. Roth Martin, D545,037 S * 6/2007 Shafer ...... ... D2,969
San Francisco, CA (US) D571,084 S * 6/2008 Comeau. D2/925
D571,548 S * 6/2008 Seamans D2/925
(73) Assignee: CABH Holdings, LLC, San Francisco, D579,637 S * 11/2008 Liow ...... D2/925
CA (US) D611,693 S * 3/2010 Schwartz ... ... D2,969
D612,591 S * 3/2010 Schwartz ... ... D2,969
(**) Term: 14 Years D660,565 S 5/2012 Della Valle
D668,027 S * 10/2012 Millieret ...
D2/925
D2/925
D668,438 S * 10/2012 Millieret D2/925
(21) Appl. No.: 29/512,404 D668,847 S * 10/2012 Gavrieli. D2/925
D668,848 S * 10/2012 Gavrieli. D2/925
(22) Filed: Dec. 18, 2014 D668,849 S * 10/2012 Pozzi ... D2/925
D668,850 S * 10/2012 Pozzi . D2/925
(51) LOC (10) C. - -- - - -- -- - -- -- - - -- - -- -- - - -- - - - -- -- - -- - - -- -- - -- - 02-04 D676,634 S ck 2, 2013 Gavrieli D2/925
(52) U.S. Cl. D693,103 S * 11/2013 McMillan D2/971

USPC ........................................................... D2/939 D730,635 S *ck 6/2015 Lin ............ D2/939
(58) Field of Classification Search D744,730 S 12/2015 Kirkwood ...................... D2/923
USPC .................. D2/896,919,925-942, 969, 971 * cited by examiner
CPC ...... A43B 21/00; A43B 21/02: A43B 21/06;
A43B 9/14: A43B 1/0045: A43B 13/10; Primary Examiner — Dominic Simone
A43B 13/12: A43B 23/06; A43B 23/07: (74) Attorney, Agent, or Firm — Arent Fox LLP
A43B 1/0036; A43B 5/12
See application file for complete search history. (57) CLAM
The ornamental design for a shoe, as shown and described.
(56) References Cited DESCRIPTION
U.S. PATENT DOCUMENTS
FIG. 1 is a perspective view of an embodiment of a shoe;
20,439 A * 6/1858 Michael et al. ......... A43B 3/16 FIG. 2 is a front view thereof;
36.71 R FIG. 3 is a rear view thereof;
D16,609 S 4, 1886 Buchana ........................... 2/939 FIG. 4 is a side view thereof;
687,513 A * 11/1901 Bibikov ................. A43B3,126 s
36,115 FIG. 5 is another side view thereof;
D86,152 S * 2/1932 Bellak ............................ D2/920 FIG. 6 is a top view thereof; and,
D109,313 S : 4, 1938 Delman D2/935 FIG. 7 is a bottom view thereof.
D133,819 S 9, 1942 Harris............................. D2/939 The broken line portions shown in the figures are for
D137,763 S * 4, 1944 Golstein ........................ D2/939 illustrati nl df rt of the claimed
D137,765 S * 4, 1944 Goldstein D204 Illustrative purposes only and Iorm no part of the claime
D149,683 S * 5/1948 Sandler ... D2/930 design.
D149,695 S * 5/1948 Sandler . D2/930
D163,185 S * 5/1951 Joyce ............................. D2/930 1 Claim, 6 Drawing Sheets

U.S. Patent Oct. 11, 2016 Sheet 1 of 6 US D768,366 S

FIG. 2
FIG. 3



U.S. Patent Oct. 11, 2016 Sheet S of 6 US D768,366 S


Exhibit 2

Exhibit 3

JS 44 (Rev. 06/17) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS

Rothy's, Inc. JKM Technologies, LLC d/b/a OESH Shoes &
Dr. Casey Kerrigan d/b/a OESH Shoes
(b) County of Residence of First Listed Plaintiff New Castle, DE County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Dana Finberg, Arent Fox LLP
55 Second Street, 21st Floor,
San Fransisco, CA 94105, 415-757-5500
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’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4
of Business In This State
’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6

Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.
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(Excludes Veterans) ’ 345 Marine Product Liability ’ 840 Trademark Corrupt Organizations
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’ 210 Land Condemnation ’ 440 Other Civil Rights Habeas Corpus: ’ 791 Employee Retirement ’ 870 Taxes (U.S. Plaintiff ’ 896 Arbitration
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(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
35 U.S.C. § 271, 15 U.S.C. § 1125
VI. CAUSE OF ACTION Brief description of cause:
Patent Infringement; Trade Dress Infringement; Unfair Competition
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COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: ’ Yes ’ No
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DATE SIGNATURE OF ATTORNEY OF RECORD
08/16/2018 /s/ Dana J. Finberg
FOR OFFICE USE ONLY
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required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
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II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
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precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.
V. Origin. Place an "X" in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.
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Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to
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VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
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Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.

Rothy's v. JKM Techs. - Complaint

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Rothy's v. JKM Techs. - Complaint

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08/16/2018

O IN THE UNITED STATES DISTRICT COURT

DR. CASEY KERRIGAN d/b/a OESH SHOES,

COMPLAINT FOR PATENT INFRINGEMENT,

Kerrigan d/b/a OESH Shoes (hereinafter “Defendants”), and alleges as follow:

1. Plaintiff Rothy’s, Inc. (hereinafter “Rothy’s”) is a corporation organized and

2. On information and belief, Defendant JKM Technologies, LLC d/b/a OESH

Charlottesville, Virginia 22903-4735.

4. On information and belief, Defendant JKM Technologies may be served with

JURISDICTION AND VENUE

over this case pursuant to 28 USC §§ 1331 and 1338.

exceeds $75,000, exclusive of interest and costs.

8. On information and belief, Defendants are a Virginia corporation, a Virginia

9. Plaintiff Rothy’s (formerly known as CABH Holdings, LLC) was founded in

bottles since its founding.

protection, manufacture, marketing and sales of The Flat product.

recognized by consumers of footwear.

14. As a result of Rothy’s revolutionary design and significant research and

like, Business Insider (July 1, 2018) https://amp.businessinsider.com/rothys-comfortable-work-

(August 17, 2016) https://www.vogue.com/article/rothys-shoes-chic-recycled-eco-friendly-

future patent infringement.

Patent and the ’D276 Patent.

by the side-by-side comparisons below:

The ’D156 Patent The Infringing Product

demonstrated by the side-by-side comparison below:

The Patented Product – The Infringing Product –

Rothy’s The Flat The Dream Flat

for sale of The Dream Flat product.

harm, and as such, Rothy’s is entitled to damages

28. Rothy’s incorporates and re-alleges the allegations of Paragraphs 1 through 27

above as though fully set forth below.

Complaint, which embodies the design covered by the ’D366 Patent.

increased damages and attorneys’ fees.

infringement unless enjoined by this Court under 35 U.S.C. §283.

35. Rothy’s incorporates and re-alleges the allegations of Paragraphs 1 through 34

above as though fully set forth below.

Complaint, which embodies the design covered by the ’D156 Patent.

increased damages and attorneys’ fees.

infringement unless enjoined by this Court under 35 U.S.C. §283.

42. Rothy’s incorporates and re-alleges the allegations of Paragraphs 1 through 41

above as though fully set forth below.

Complaint, which embodies the design covered by the ’D276 Patent.

increased damages and attorneys’ fees.

infringement unless enjoined by this Court under 35 U.S.C. §283.

49. Rothy’s incorporates and re-alleges the allegations of Paragraphs 1 through 48

above as though fully set forth below.

Rothy’s in the minds of consumers.

Section 43(a) of the Lanham Act, 15 U.S.C. § 1125.

commerce of false designations of origin, false or misleading descriptions or representations that

Lanham Act, 15 U.S.C. § 1125.

leaving Rothy’s with no adequate remedy at law.

Complaint above as though fully set forth below.

to deceive consumers as to the affiliation, connection, or association of Defendants with Rothy’s

in violation of Section 43(a) of the Lanham Act, 15 U.S.C. §1125(a).

and reputation associated with Rothy’s The Flat product.

and enjoined by this Court.

PRAYER FOR JUDGEMENT AND RELIEF

WHEREFORE, Rothy’s prays for a judgment against Defendants as follows:

and that such infringement was willful;

and that such infringement was willful;

and that such infringement was willful;