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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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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.

17. By way of assignment, Rothy’s is the owner of all rights, title and interest in and

to United States Patent No. D804,156 (the “’D156 Patent”) for an ornamental design entitled

“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.

18. By way of assignment, Rothy’s is the owner of all rights, title and interest in and

to United States Patent No. D805,276 (the “’D276 Patent”) for an ornamental design entitled

“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

The ’D156 Patent The Infringing Product

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The ’D276 Patent The Infringing Product

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.

31. On information and belief, Defendants’ infringement has caused Rothy’s to suffer

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
INFRINGEMENT OF U.S. Patent No. D804,156

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

above as though fully set forth below.

36. Defendants’ The Dream Flat product falls within the scope of the claim of the

D804,156 Patent and therefore has infringed the patent in violation of 35 U.S.C. § 271, et seq.

37. Defendants have been and are still infringing the ’D156 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 ’D156 Patent.

38. On information and belief, Defendants’ infringement has caused Rothy’s to suffer

damages, and as such, Rothy’s is entitled to damages pursuant to 35 U.S.C. §§ 284 and 289.

39. On information and belief, Defendants have gained profits by virtue of their

infringement of the ’D156 Patent. As such, Rothy’s is entitled to Defendants’ profits under 35

U.S.C. § 289.

40. 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.

41. 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 III
INFRINGEMENT OF U.S. Patent No. D805,276

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

above as though fully set forth below.

43. Defendants’ The Dream Flat product falls within the scope of the claim of the

D805,276 Patent and therefore has infringed the patent in violation of 35 U.S.C. § 271, et seq.

44. Defendants have been and are still infringing the ’D276 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 ’D276 Patent.

45. On information and belief, Defendants’ infringement has caused Rothy’s to suffer

damages, and as such, Rothy’s is entitled to damages pursuant to 35 U.S.C. §§ 284 and 289.

46. On information and belief, Defendants have gained profits by virtue of their

infringement of the ’D276 Patent. As such, Rothy’s is entitled to Defendants’ profits under 35

U.S.C. § 289.

47. 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.

48. 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 IV
INFRINGEMENT OF ROTHY’S TRADE DRESS

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

above as though fully set forth below.

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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62. For a finding that U.S. Design Patent No. D804,156 is valid and enforceable;

63. For a finding that Defendants have infringed U.S. Design Patent No. D804,156,

and that such infringement was willful;

64. For a finding that U.S. Design Patent No. D805,276 is valid and enforceable;

65. For a finding that Defendants have infringed U.S. Design Patent No. D805,276,

and that such infringement was willful;

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;

67. For an award of damages to Rothy’s against Defendants for infringement of U.S.

Design Patent No. D804,156, under 35 U.S.C. § 284;

68. For an award of damages to Rothy’s against Defendants for infringement of U.S.

Design Patent No. D805,276, 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;

71. 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. D804,156;

72. 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. D805,276;

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

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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

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

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U.S. Patent Oct. 11, 2016 Sheet 2 of 6 US D768,366 S

FIG. 2

FIG. 3

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U.S. Patent Oct. 11, 2016 Sheet 3 of 6 US D768,366 S

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U.S. Patent Oct. 11, 2016 Sheet 4 of 6 US D768,366 S

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

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

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Exhibit 2

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Exhibit 3

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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
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
’ 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.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
’ 110 Insurance PERSONAL INJURY PERSONAL INJURY ’ 625 Drug Related Seizure ’ 422 Appeal 28 USC 158 ’ 375 False Claims Act
’ 120 Marine ’ 310 Airplane ’ 365 Personal Injury - of Property 21 USC 881 ’ 423 Withdrawal ’ 376 Qui Tam (31 USC
’ 130 Miller Act ’ 315 Airplane Product Product Liability ’ 690 Other 28 USC 157 3729(a))
’ 140 Negotiable Instrument Liability ’ 367 Health Care/ ’ 400 State Reapportionment
’ 150 Recovery of Overpayment ’ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS ’ 410 Antitrust
& Enforcement of Judgment Slander Personal Injury ’ 820 Copyrights ’ 430 Banks and Banking
’ 151 Medicare Act ’ 330 Federal Employers’ Product Liability ’ 830 Patent ’ 450 Commerce
’ 152 Recovery of Defaulted Liability ’ 368 Asbestos Personal ’ 835 Patent - Abbreviated ’ 460 Deportation
Student Loans ’ 340 Marine Injury Product New Drug Application ’ 470 Racketeer Influenced and
(Excludes Veterans) ’ 345 Marine Product Liability ’ 840 Trademark Corrupt Organizations
’ 153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY ’ 480 Consumer Credit
of Veteran’s Benefits ’ 350 Motor Vehicle ’ 370 Other Fraud ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) ’ 490 Cable/Sat TV
’ 160 Stockholders’ Suits ’ 355 Motor Vehicle ’ 371 Truth in Lending Act ’ 862 Black Lung (923) ’ 850 Securities/Commodities/
’ 190 Other Contract Product Liability ’ 380 Other Personal ’ 720 Labor/Management ’ 863 DIWC/DIWW (405(g)) Exchange
’ 195 Contract Product Liability ’ 360 Other Personal Property Damage Relations ’ 864 SSID Title XVI ’ 890 Other Statutory Actions
’ 196 Franchise Injury ’ 385 Property Damage ’ 740 Railway Labor Act ’ 865 RSI (405(g)) ’ 891 Agricultural Acts
’ 362 Personal Injury - Product Liability ’ 751 Family and Medical ’ 893 Environmental Matters
Medical Malpractice Leave Act ’ 895 Freedom of Information
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ’ 790 Other Labor Litigation FEDERAL TAX SUITS Act
’ 210 Land Condemnation ’ 440 Other Civil Rights Habeas Corpus: ’ 791 Employee Retirement ’ 870 Taxes (U.S. Plaintiff ’ 896 Arbitration
’ 220 Foreclosure ’ 441 Voting ’ 463 Alien Detainee Income Security Act or Defendant) ’ 899 Administrative Procedure
’ 230 Rent Lease & Ejectment ’ 442 Employment ’ 510 Motions to Vacate ’ 871 IRS—Third Party Act/Review or Appeal of
’ 240 Torts to Land ’ 443 Housing/ Sentence 26 USC 7609 Agency Decision
’ 245 Tort Product Liability Accommodations ’ 530 General ’ 950 Constitutionality of
’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 535 Death Penalty IMMIGRATION State Statutes
Employment Other: ’ 462 Naturalization Application
’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 465 Other Immigration
Other ’ 550 Civil Rights Actions
’ 448 Education ’ 555 Prison Condition
’ 560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
’ 1 Original ’ 2 Removed from ’ 3 Remanded from ’ 4 Reinstated or ’ 5 Transferred from ’ 6 Multidistrict ’ 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(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
VII. REQUESTED IN ’ CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: ’ Yes ’ No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
08/16/2018 /s/ Dana J. Finberg
FOR OFFICE USE ONLY

RECEIPT #0423- AMOUNT 400.00
Case 3:18-cv-00067-GEC Document
APPLYING IFP 1-4 Filed 08/16/18
JUDGE Page
Conrad1 of 2MAG.
Pageid#:
JUDGE 51
2958864
JS 44 Reverse (Rev. 06/17)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading 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. 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
in this section "(see attachment)".

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
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
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.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
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
changes in statue.

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
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
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.

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