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Case 2:19-cv-10619-MOB-MKM ECF No. 1 filed 03/01/19 PageID.

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UNITED STATES DISTRICT COURT


IN THE EASTERN DISTRICT OF MICHIGAN

CONSTRUCTIVE EATING, INC., )


)
Plaintiff, )
)
v. ) Case No. Case No. 2:19-cv-10619
)
MASONTOPS, INC., ) JURY TRIAL DEMANDED
)
Defendant. )
)
)
)

COMPLAINT
Plaintiff Constructive Eating, Inc. (“Constructive Eating”) has spent years developing

creative, unique products that help children develop fine motor skills, build independence, stay

engaged at the table, and make mealtime more enjoyable for children and their families.

Constructive Eating has invested substantial time, effort and expense protecting its products with

intellectual property, and building source-identifying goodwill in the design of its products.

Defendant introduced close replicas to Plaintiff’s construction eating utensils, thus infringing

Plaintiff’s design patents, copyrights and trade dress rights in its products, and competing

unfairly with Plaintiff. Plaintiff seeks to stop Defendant from taking and misusing its intellectual

property.

THE PARTIES
1. Constructive Eating, Inc., is a corporation organized under the laws of the state of

Michigan with its principal place of business at 525 Avis Dr #16, Ann Arbor, MI 48108, Ann

Arbor, Michigan 48108.


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2. On information and belief, Masontops, Inc. (“Masontops”), is a corporation

organized under the laws of the country of Canada, province of Ontario, with its principal place

of business at RPO Sheppard Plaza, Suite 524, Toronto, Ontario, M3H 6A7.

JURISDICTION AND VENUE


3. This is a complaint for patent infringement arising under 35 U.S.C. § 271 et seq.,

for copyright infringement under 17 U.S.C. § 501 et seq., and for trade dress infringement and

unfair competition under the Lanham Act 15 U.S.C. § 1125(a), and common law unfair

competition. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331, 1332, 1338(a),

and 1367.

4. The Court has personal jurisdiction over Defendant because Defendant has

committed acts of infringement in this District, directly and/or through a third party, by offering

for sale, selling and shipping the accused construction-themed products within and into this

judicial district. Defendant engaged in tortious conduct directed to harm residents of this District

and has purposefully directed its activities to the State and this District and/or purposefully

availed itself of this jurisdiction.

5. Venue is proper in this District under 28 U.S.C. § 1391(b) because Defendant has

committed acts of infringement in this District, directly and/or through a third party, by offering

for sale, selling and shipping the accused construction-themed products within and into this

judicial district, and is subject to personal jurisdiction in this District. Defendant engaged in

tortious conduct directed to harm residents of this District and has purposefully directed its

activities to the State and this District and/or purposefully availed itself of this District.

Additionally, venue is proper because Constructive Eating’s principal place of business is in this

district, and Constructive Eating has suffered and is suffering harm in this District.

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GENERAL ALLEGATIONS
Background on Constructive Eating

6. Plaintiff Constructive Eating was founded in 2006 by two parents who sought to

make mealtime more enjoyable for their children. Constructive Eating prioritized designing,

developing and manufacturing its own distinctive products that could be sold through a network

of authorized distributors and outlets, including specialty stores.

7. Because their children loved construction-themed toys, Constructive Eating’s

founders first designed, developed and manufactured a set of three construction-themed eating

utensils with distinctive, eye-catching designs that were immediately successful in the market

(sometimes referred to as “Construction Utensils”). The set included a front-loader utensil with

a spoon head on one end (“Front Loader Utensil”), a bulldozer utensil with a pusher (“Bulldozer

Utensil”) and a forklift with fork tines on one end (“Forklift Utensil”).

8. Constructive Eating created a unique, distinctive and source-designating design to

differentiate its products where the construction vehicle is integrated not only into the handle, but

also into the food manipulating portion of the utensil. The construction vehicle carefully morphs

into and is integrated with the food manipulating portion as if the food manipulating portion is

part of the construction vehicle, thus making the user experience more original, life-like and fun.

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Children animate their play with Constructive Eating’s Construction Utensils because of these

and other distinctive design features.

9. Constructive Eating also chose bright, colorful designs with a two-tone alternating

color scheme to make their Construction Utensils distinctive and attractive to customers, both

from the point of purchase and at the table. Constructive Eating also elected to make its

Construction Utensils with two different materials, thus providing the appearance of different

textures on different portions of the utensils.

10. Constructive Eating invested substantial time and resources to design and develop

its Construction Utensils, and to ensure that its Construction Utensils are safe, reliable and

appropriate for use by children with food. These investments have totaled hundreds of thousands

of dollars in research and design, tooling, testing and other expenses.

11. Constructive Eating protected its innovative, novel and distinctive designs by

obtaining design patents covering its Construction Utensils.

12. Constructive Eating obtained U.S. Patent No. D554,440 (the “’440 Patent)

entitled “Spoon With Integrated Construction Machine” to protect the proprietary, ornamental

design in its Loader Utensil. Constructive Eating owns by assignment the entire right, title and

interest in and to the ’440 patent. A true and correct copy of the ’440 Patent is attached to this

Complaint as Exhibit A.

13. Constructive Eating obtained U.S. Patent No. D554,441 (the “’441 Patent)

entitled “Pusher With Integrated Construction Machine” to protect the proprietary, ornamental

design in its Bulldozer Utensil. Constructive Eating owns by assignment the entire right, title

and interest in and to the ’441 patent. A true and correct copy of the ’441 Patent is attached to

this Complaint as Exhibit B.

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14. Constructive Eating also protected its innovative, novel and distinct designs by

obtaining copyright registrations covering the copyrighted design of its Construction Utensils.

15. Constructive Eating obtained U.S. Copyright Registration No. VA 1-704-404 (the

“404 Copyright”) entitled “Constructive Eating Front Loader Spoon” to protect the original,

proprietary design in its Front Loader Utensil. Constructive Eating owns by assignment the

entire right, title and interest in and to the ’404 Copyright. A true and correct copy of the ’404

Copyright is attached to this Complaint as Exhibit C. An image of the source material submitted

to the Copyright Office is shown below:

16. Constructive Eating obtained U.S. Copyright Registration No. VA 1-704-223 (the

“’223 Copyright”) entitled “Constructive Eating Bull Dozer Pusher” to protect the original,

proprietary design in its Bulldozer Utensil. Constructive Eating owns by assignment the entire

right, title and interest in and to the ’223 Copyright. A true and correct copy of the ’223

Copyright is attached to this Complaint as Exhibit D. An image of the source material submitted

to the Copyright Office is shown below:

17. Starting with the launch of its Construction Utensils, Constructive Eating has

enjoyed considerable commercial success with its distinctive designs differentiating Constructive

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Eating’s construction utensils from other competitor’s utensils, and by being associated with

Constructive Eating as distinctive, source-identifying and proprietary product designs.

18. Since introducing the design of its construction utensils in 2007, Constructive

Eating has sold more than 500,000 sets of construction utensils, and nearly a million separate

construction utensils. Construction utensils sales have totaled millions of dollars.

19. Also since 2007, Constructive Eating has spent hundreds of thousands of dollars

marketing and promoting the distinctive design of its Construction Utensils. Constructive Eating

regularly displays its products, emphasizing the unique, distinctive, source-designating design

features, in electronic and print advertising, and at well-known trade shows all across the country

attended by nearly all competitors, toy companies and distributors in the industry, including but

not limited to the Toy Fair, Gourmet Catalogue Marketplace, International Housewares Show,

Learning Express Convention, ASTRA Marketplace, ToyFest West, and Gift Shows in Dallas,

Atlanta, Chicago, Minneapolis, New York, Seattle, Los Angeles and Las Vegas.

20. Constructive Eating has a wide network of distribution, making the distinctive

design of its Construction Utensils well-known by distributors, stores and on-line retailers across

the country. Since introduction into the market, Constructive Eating’s construction utensils have

been ordered and carried by over 3000 stores all over the United States, with hundreds of stores

spanning the entire country carrying the construction utensils in 2018 and 2019.

21. On account of their unique and distinctive design, Constructive Eating’s

Construction Utensils have achieved numerous awards and national recognition. Constructive

Eating’s construction utensils won the Preferred Choice Award from Creative Child Magazine in

2009; the Family Choice Award in 2009; the Best Vacation Product from Dr. Toy in 2010; the

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Sterling Fun Award from Tillywig Toy in 2010; the Award of Excellence, Seal of Approval and

Editor’s Choice from Toy Man in 2010.

22. Additionally, Constructive Eating was named as one of Michigan’s 50 Companies

to Watch by the Edward Lowe Foundation in 2013 and the Indie Award Winner-Washtenaw

Country Hidden Gem Award in 2015.

23. Constructive Eating’s construction utensils have also appeared in nationally

televised shows such as “The Little Couple” on TLC with children using Constructive Eating’s

Construction Utensils, and in the highly popular and large-grossing movie “Grown Ups 2”

starring Adam Sandler and Salma Hayek with their children in the movie using Constructive

Eating’s Construction Utensils.

24. The success of Constructive Eating’s unique and distinctive construction utensil

designs can be seen in the on-line marketplace. On Amazon, Constructive Eating’s Construction

Utensils have accumulated over 490 customer reviews with a 4.7/5.0 start rating, and a 4.6/5.0

star rating with over 500 customer reviews when sold with Constructive Eating’s construction

plate. On Uncommon Goods, Constructive Eating’s construction utensils and construction plate

have received a 4.7/5.0 star rating with over 1200 reviews. On The Grommet, Constructive

Eating’s construction utensils and construction plate have received a 4.8/5.0 star rating with 90

reviews.

25. On social media, Constructive Eating has over 11,000 Instagram followers, over

2,500 Facebook followers and over 380 followers on Twitter. Just the viral Constructive Eating

Facebook posts featuring its construction utensils in 2017 collectively generated nearly 25

million views, with over 40,000 “likes”, over 50,000 comments and over 150,000 “shares.”

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26. Constructive Eating has created significant source-identifying and valuable

goodwill in being the sole source for the distinctive trade dress product design of its construction

utensils, which have not changed in any substantial way since their launch in 2007.

27. As a result, Constructive Eating has protectable product design trade dress rights

in the overall look and appearance of its Construction Utensils, including but not limited to the

overall combination of the non-functional design aspects such design, style, appearance, visual

connection and visual flow of the handle portion to the construction vehicle portion to the food

manipulating portion; the design, appearance, placement and location of the construction-themed

vehicle on the utensil; the shape, angle and extension of the handle out of the back end of the

construction vehicle; the integration of the construction vehicle with the food manipulating

portion without interfering with the design of the construction vehicle; the overall shape,

proportions, widths, heights, size and dimensions of the utensils; the two-tone color scheme with

a yellow base and black accents and features; the yellow handle with black overlay; the

distinctive projection for the exhaust pipe in the rear portion of the construction vehicle; the

general shape and configuration of the Front Loader Utensil construction vehicle with heightened

cab and trapezoidal profile; the black wheels with yellow circular centers on the Front Loader

Utensil; general shape and configuration of the Bulldozer Utensil construction vehicle, including

a higher tread back portion that converges to a lower front tread portion; the black bulldozer

treads framing an oblong yellow rounded trapezoidal shaped interior on the Bulldozer Utensil;

formed steps in the sides of the construction vehicle leading up to the cab; the shape, relative

dimensions and color of the front and side windows in the cab; the use of two different materials

to create a look of different textures on different portions of the utensil; and a taper from the

proximal end of the handle to the integrated construction vehicle.

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Masontop’s Infringing Construction-Themed Utensils

28. To capitalize on the commercial success of the design of Constructive Eating’s

construction utensils, the ’440 and ’441 Patents, the ’404 and ’223 Copyrights and Constructive

Eating’s source-identifying product trade dress, Defendant Masontops introduced and started

selling its construction-themed eating utensils in competition with Constructive Eating’s

proprietary construction utensil designs, including a front loader utensil and a bulldozer utensil.

The similarities were substantial and striking:

Constructive Eating Defendant's


Utensils Utensils

29. Masontops offered its construction-themed utensils not only on the website

https://dinneractive.com, but also on Amazon in direct competition with Constructive Eating’s

Amazon listings for its Construction Utensils.

30. When a user search for Constructive Eating on Amazon returns Constructive

Eating’s proprietary Construction Utensils, Defendant’s construction-themed utensils appear

under “Sponsored products related to this item” or “What other items do customers busy after

viewing this item.” The only other items with a construction theme that appear pursuant to the

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same search on Amazon are shown below (the second and fourth images). The second and

fourth construction-themed utensils pictured below look nothing like the Constructive Eating

Construction Utensils (first image) and Masontops’ infringing construction-themed utensils

(third image).

31. Even when seen in their blister packaging, with Defendant’s construction-themed

utensils sold as a set with a construction plate (the “Dinneractive 3-Piece Construction Themed

Meal Set”), the similarities are substantial and striking.

32. Defendant’s construction-themed utensils and construction-themed set compete

directly with Constructive Eating’s proprietary Construction Line. Defendant markets and sells

its construction-themed utensils to Constructive Eating’s customers.

33. When it learned about Defendant’s construction-themed utensils, Constructive

Eating sent a letter on December 14, 2018 placing Defendant on notice of Constructive Eating’s

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’440 and ’441 Patents, ’404 and ’223 Copyrights and Constructive Eating’s source-identifying

product trade dress, and demanding that Defendant cease and desist from making, using, selling

or offering to sell its construction-themed products in the U.S. Defendant declined, but instead

continues to knowingly use, sell and offer for sale its construction-themed utensils in violation of

Constructive Eating’s design patent, copyright and trade dress rights, and to unfairly compete

with Constructive Eating through misappropriation of Constructive Eating’s proprietary

Constructive Utensil designs.

COUNT I
INFRINGEMENT OF ’440 PATENT
34. Constructive Eating repeats each and every allegation of the preceding paragraphs

as if set forth fully herein.

35. In violation of 35 U.S.C. § 271, Masontops has infringed and continues to

infringe the claim of the ’440 Patent by making, using, selling, or offering for sale within the

United States, or importing into the United States, its construction–themed utensil that is covered

by the claim of the ’440 Patent and sold as part of the Dinneractive 3-Piece Construction Themed

Meal Set.

36. A side-by-side comparison of the claimed design of ’440 Patent and Masontops’

front loader spoon is shown below:

Fig. 1 of ’440 Patent Defendant's Front Loader Utensil

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37. An ordinary observer, giving such attention as a purchaser usually gives, would

find the non-functional aspects of the design of the front loader utensil in the ’440 Patent to be

substantially the same such as to deceive and induce the ordinary observer to purchase the

Masontops’ front loader utensil and 3-Piece Construction Themed Meal Set, supposing it to be

Constructive Eating’s patented design. Side-by-side comparisons of the other figures of the ’440

Patent with Defendant’s front loader utensil reveal the same substantial similarity.

38. As a direct and proximate consequence of the infringement, Constructive Eating

has been, is being, and, unless such acts and practices are enjoined by the Court, will continue to

be injured in its business and property rights, and has suffered, is suffering, and will continue to

suffer injury and damages for which it is entitled to relief under 35 U.S.C. § 284 and § 289

adequate to compensate for such infringement, including Defendant’s profits, lost profits, but in

no event less than a reasonable royalty.

39. Defendant’s infringement is further causing and will continue to cause

Constructive Eating irreparable harm, for which there is no adequate remedy at law. Unless and

until enjoined by this Court, Defendant will continue to infringe the ’440 Patent. Under 35

U.S.C. § 283, Constructive Eating is entitled to an injunction against further infringement.

40. Constructive Eating has complied with the statutory requirement of placing notice

of the ’440 Patent on the front loader utensils it manufactures and sells that are covered by the

’440 Patent, and has thus provided Defendant not only with actual notice, but also with

constructive notice of the ’440 Patent.

41. Additionally, Defendant has known that its activities concerning its front loader

utensil infringe the ’440 patent.

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42. Defendant has committed infringement willfully and intentionally despite having

notice of the ’440 Patent, thus entitling Constructive Eating to treble damages for Defendant’s

willful infringement of the ’440 patent.

COUNT II
INFRINGEMENT OF THE ’441 PATENT
43. Constructive Eating repeats each and every allegation of the preceding paragraphs

as if set forth fully herein.

44. In violation of 35 U.S.C. § 271, Masontops has infringed and continues to

infringe the claim of the ’441 Patent by making, using, selling, or offering for sale within the

United States, or importing into the United States, a construction –themed utensil that is covered

by the claim of the ’441 Patent, including but not limited to the bulldozer utensil sold as part of

the Dinneractive 3-Piece Construction Themed Meal Set.

45. A side-by-side comparison of the claimed design of ’441 Patent and Masontops’

front loader spoon is shown below,

Fig. 1 of ’441 Patent Defendant’s Bulldozer Utensil

46. An ordinary observer, giving such attention as a purchaser usually gives, would

find the non-functional aspects of the design of the bulldozer utensil in the ’441 Patent to be

substantially the same such as to deceive and induce the ordinary observer to purchase the

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Masontops’ bulldozer utensil and 3-Piece Construction Themed Meal Set, supposing it to be

Constructive Eating’s patented design. Side-by-side comparisons of the other figures of the ’441

Patent with Defendant’s front loader utensil reveal the same substantial similarity.

47. As a direct and proximate consequence of the infringement, Constructive Eating

has been, is being, and, unless such acts and practices are enjoined by the Court, will continue to

be injured in its business and property rights, and has suffered, is suffering, and will continue to

suffer injury and damages for which it is entitled to relief under 35 U.S.C. § 284 and § 289

adequate to compensate for such infringement, including Defendant’s profits, lost profits, but in

no event less than a reasonable royalty.

48. Defendant’s infringement is further causing and will continue to cause

Constructive Eating irreparable harm, for which there is no adequate remedy at law. Unless and

until enjoined by this Court, Defendant will continue to infringe the ’441 Patent. Under 35

U.S.C. § 283, Constructive Eating is entitled to an injunction against further infringement.

49. Constructive Eating has complied with the statutory requirement of placing notice

of the ’441 Patent on the bulldozer utensils it manufactures and sells that are covered by the ’441

Patent, and has thus provided Defendant not only with actual notice, but with constructive notice

of the ’441 Patent.

50. Defendant has known that its activities concerning its bulldozer utensil infringe

the ’441 patent.

51. Defendant has committed infringement willfully and intentionally despite having

notice of the ’441 Patent, thus entitling Constructive Eating to treble damages for Defendant’s

willful infringement of the ’441 patent.

COUNT III
COPYRIGHT INFRINGEMENT

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52. Constructive Eating repeats each and every allegation of the preceding paragraphs

as if set forth fully herein.

53. Constructive Eating is the owner of U.S. Copyright Registration Nos. VA 1-704-

404 entitled “Front Loader Spoon” (Ex. C) and VA 1-704-223 entitled “Bulldozer Pusher” (Ex.

D) (together referred to as “Constructive Eating Copyright Registrations”).

54. Both copyright registrations cover sculptural works. Constructive Eating’s Front

Loader Utensil and Bulldozer Utensil (“Constructive Eating Copyrighted Works”) were provided

to the Copyright Office as source materials.

55. On information and belief, Defendant had access to Constructive Eating’s

Copyrighted Works prior to creation of Defendant’s construction-themed utensils. Constructive

Eating’s Copyrighted Works have been sold since 2007, thus providing Defendant with access to

Plaintiff’s products for 12 years.

56. On information and belief, Defendant intentionally copied Constructive Eating’s

Copyrighted Works in order to create Defendant’s construction-themed utensils.

57. Defendant’s construction-themed utensils are substantially similar to Constructive

Eating’s Copyrighted Works.

Constructive Eating’s Defendant's


’404 Copyrighted Design Front Loader Utensil

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Constructive Eating’s Defendant’s


’223 Copyrighted Design Bulldozer Utensil

58. In violation of 17 U.S.C. § 501, Defendant has infringed, and is continuing to

infringe, Constructive Eating’s Copyright Registrations by publishing and/or distributing images

of its construction-themed utensils on the Dinneractive website, Amazon and in other advertising

materials, and offering for sale, selling and distributing to the public its construction-themed

utensils, all without authorization from Plaintiff Constructive Eating.

59. As a result of Defendant’s infringement of Plaintiff Constructive Eating’s

Copyrights, Defendant has profited in amounts to be determined in the course of this action.

60. Also as a result of Defendant’s infringement of Plaintiff Constructive Eating’s

Copyrighted Works, Plaintiff has been deprived of sales in amounts to be determined in the

course of this action.

61. Plaintiff is likely to suffer further injury and irreparable harm if Defendant is not

enjoined from infringing Constructive Eating’s Copyrighted Works.

62. On information and belief, Defendant’s infringement of Constructive Eating’s

Copyrighted Works was, and is, willful, fraudulent, and malicious.

63. Plaintiff is therefore entitled to an award of enhanced damages, including

enhanced statutory damages, in an amount appropriate to punish Defendants and deter others

from engaging in similar misconduct, as well as attorney’s fees.

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COUNT IV
VIOLATION OF THE LANHAM ACT –
TRADE DRESS INFRINGEMENT AND UNFAIR COMPETITION

64. Constructive Eating repeats each and every allegation of the preceding paragraphs

as if set forth fully herein.

65. Constructive Eating has developed and owns the protectable product design trade

dress rights in the overall look and appearance of its Construction Utensils.

66. In violation of 15 U.S.C. § 1125(a), Defendant Masontops is offering for sale and

selling its competing construction-themed utensils in the U.S. that infringe Plaintiff’s trade dress

rights in its Construction Utensils (“Constructive Eating Trade Dress”), and competing unfairly

with Plaintiff by offering for sale and selling in the U.S. its competing construction-themed

products that misappropriate Plaintiff’s proprietary product design.

67. Defendant’s construction–themed utensils are using the Constructive Eating Trade

Dress in commerce, including but not limited to the overall look and appearance of Plaintiff’s

Construction Utensils, including but not limited to the overall combination of the non-functional

design aspects such as design, style, appearance, visual connection and visual flow of the handle

portion to the construction vehicle portion to the food manipulating portion; the design,

appearance, placement and location of the construction-themed vehicle on the utensil; the overall

shape, proportions, widths, heights, size and dimensions of the utensils; the shape, angle and

extension of the handle out of the construction vehicle; the integration of the construction vehicle

with the food manipulating portion without interfering with the design of the construction

vehicle; the two-tone color scheme with a yellow base and black accents and features; a yellow

handle with black overlay; the distinctive projection for the exhaust pipe; general shape and

configuration of the Front Loader Utensil construction vehicle with heightened cab and

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trapezoidal profile; the black wheels with yellow circular centers on the Front Loader Utensil;

general shape and configuration of the Bulldozer Utensil construction vehicle, including a higher

back portion that converges to a lower front portion; the black bulldozer treads framing an

oblong yellow rounded trapezoidal shaped interior on the Bulldozer Utensil; formed steps in the

sides of the construction vehicle leading up to the cab; the shape, relative dimensions and color

of the front and side windows in the cab; the use of two different materials to create a look of

different textures on different portions of the utensil; and a taper from the proximal end of the

handle to the integrated construction vehicle.

68. The Constructive Eating Trade Dress is non-functional, made up of design

features that are not essential to the use or purpose of the article. Rather, Constructive Eating’s

Trade Dress design is an arbitrary combination of features not necessary for the products to

work.

69. Constructive Eating’s Trade Dress in its Construction Utensils has acquired

valuable goodwill and secondary meaning as in the minds of the purchasing public, Plaintiff’s

Trade Dress construction utensil designs are associated with, designate and identify Plaintiff as

the source of the products.

70. Upon information and belief, Defendant’s use of Constructive Eating’s Trade Dress

has been intentional, willful and malicious.

71. Defendant’s use of the Constructive Eating Trade Dress is likely to cause confusion,

to cause mistake, or to deceive the public as to the source of Defendant’s construction-themed

products.

72. On information and belief, Defendant’s use of Constructive Eating’s Trade Dress has

caused confusion, caused mistake and deceived the public as to the source of Defendant’s

construction-themed products.

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73. On information and belief, Defendant knowingly misappropriated Constructive

Eating’s Trade Dress with the intent to gain a competitive advantage over Constructive Eating

and gain market share away from Constructive in the market for children’s eating and

dinnerware.

74. As a result of the confusion, mistake, and deception caused by Defendant’s use of

Constructive Eating’s Trade Dress, Defendant has profited in amounts to be determined in the

course of this action.

75. Also as a result of the confusion, mistake, and deception caused by Defendant’s

use of Constructive Eating’s Trade Dress, Plaintiff has been deprived of sales and profits in

amounts to be determined in the course of this action.

76. Constructive Eating is likely to suffer further injury and irreparable harm, for

which there is no adequate remedy at law, if Defendant is not enjoined from using Constructive

Eating’s Trade Dress.

77. Defendants’ use of Constructive Eating’s Trade Dress was, and is, willful,

fraudulent and malicious. Plaintiffs are therefore entitled to an award of exemplary, enhanced, or

punitive damages in an amount appropriate to punish Defendants and deter others from engaging

in similar misconduct.

COUNT V
COMMON LAW UNFAIR COMPETITION

78. Constructive Eating repeats each and every allegation of the preceding paragraphs

as if set forth fully herein.

79. Defendant has competed unfairly with Plaintiff, and continues to compete unfairly

with Plaintiff, by unlawfully misappropriating Constructive Eating’s proprietary product designs

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in its Construction Utensils by making, selling, offering for sale and/or importing Defendant’s

construction-themed products.

80. Defendant has unlawfully used confusingly similar derivations of Constructive

Eating’s product design and the Constructive Eating Trade Dress to identify Defendant’s

construction-themed products (including on Defendant’s Dinneractive website, on Amazon and

on Defendant’s packaging material).

81. On information and belief, Defendant has taken the above actions in order to

deceive members of the relevant purchasing public, confuse consumers as to the source of

Defendant’s construction-themed products, and create the false impression that Constructive

Eating has endorsed Defendant’s construction-themed products.

82. This false designation of origin is likely to cause confusion, or to cause mistake,

or to deceive as to the affiliation, connection, or association of Defendant with Plaintiff, or as to

the origin, sponsorship, or approval of Defendant’s construction-themed products by Plaintiff.

83. On information and belief, this false designation of origin has caused confusion,

has caused mistake, and has deceived as to the affiliation, connection, or association of

Defendant with Plaintiff, or as to the origin, sponsorship, or approval of Defendant’s

construction-themed products by Plaintiff.

84. On information and belief, Defendant carried out these acts with the intent to gain

a competitive advantage over Constructive Eating and compete unfairly against Constructive

Eating in the market for children’s eating and dinner ware.

85. On information and belief, and as a result of the confusion, mistake, and

deception caused by Defendant’s above actions, Defendant have profited in amounts to be

determined in the course of this action.

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86. Plaintiff is entitled to recover Defendant’s profits resulting from Defendant’s

unfair competition.

87. Also as a result of the confusion, mistake, and deception caused by Defendant’s

above actions, Plaintiff has been deprived of sales in amounts to be determined in the course of

this action.

88. Plaintiff is entitled to recover damages adequate to compensate it for the

competitive injury resulting from Defendant’s unfair competition, which damages include at

least lost profits.

89. Plaintiffs are likely to suffer further injury and irreparable harm if Defendant is

not enjoined from the above actions.

90. On information and belief, Defendant’s above actions were, and are, willful,

fraudulent, and malicious. Plaintiffs are therefore entitled to an award of exemplary, enhanced,

or punitive damages in an amount appropriate to punish Defendant and deter others from

engaging in similar misconduct.

COUNT VI
VIOLATION OF THE MICHIGAN CONSUMER PROTECTION ACT (Mich. Comp.
Laws § 445.901 et seq.)

91. Constructive Eating repeats each and every allegation of the preceding paragraphs

as if set forth fully herein.

92. Defendant has violated, and is violating, the Michigan Consumer Protection Act

by engaging in unfair and deceptive methods, acts, and practices in the conduct of trade or

commerce.

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93. Defendant’s unfair and deceptive methods, acts, and practices include, but are not

limited to, using confusingly similar derivations of Constructive Eating’s proprietary designs in

its Construction Utensils on Defendant’s construction-themed products.

94. Defendant’s unfair and deceptive methods, acts, and practices have the effects of

(1) causing a probability of confusion or misunderstanding as to the source, sponsorship,

approval, or certification of Defendant’s construction-themed products; and (2) falsely

representing that Defendant’s construction-themed products have the sponsorship or approval of

Plaintiff.

95. Constructive Eating has been damaged by Defendant’s unfair and deceptive

methods, acts, and practices, and are likely to suffer further injury and irreparable harm if

Defendant is not enjoined from further such methods, acts, and practices.

JURY DEMAND
Constructive Eating demands a jury trial as to all issues that are triable by a jury in this

action.

PRAYER FOR RELIEF


WHEREFORE, Plaintiff Constructive Eating respectfully requests that the Court enter

judgment in its favor and against Defendant Masontops:

(a) Finding Defendant is liable for infringement of the ’440 and ’441 Patents, as

alleged herein;

(b) Enjoining and restraining Defendant and its parents, subsidiaries, affiliates,

successors, predecessors, assigns, and the officers, directors, agents, servants and employees of

each of the foregoing, and those persons acting in concert or participation with any of them, from

continued infringement, including but not limited to making, using, selling, or offering for sale

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within the United States, or importing into the United States, any products or services that

infringe Constructive Eating’s ’440 and ’441 Patents;

(c) Awarding all damages adequate to compensate Constructive Eating for the

infringement that has occurred, pursuant to 35 U.S.C. § 284 and § 289, including Defendant’s

profits and/or Plantiff’s lost profits, but in no event less than a reasonable royalty, plus

prejudgment and post-judgment interest;

(d) Awarding treble damages for willful infringement pursuant to 35 U.S.C. § 284;

(e) Declaring this case exceptional case within the meaning of 35 U.S.C. § 285 and

that Constructive Eating be awarded attorney’s fees, costs, and expenses incurred in connection

with this action;

(f) Finding Defendant liable for infringement of the Constructive Eating Copyrights,

alleged herein;

(g) Enjoining and restraining Defendant and its parents, subsidiaries, affiliates,

successors, predecessors, assigns, and the officers, directors, agents, servants and employees of

each of the foregoing, and those persons acting in concert or participation with any of them, from

continued copyright infringement, including but not limited to publishing, reproducing,

distributing, or preparing a derivative work based upon images of its construction-themed

utensils on the Dinneractive website, Amazon and in other advertising materials, and offering for

sale, selling and distributing to the public its constructive themed utensils in the United States

that infringe Constructive Eating’s Copyrights;

(h) Awarding Plaintiff compensatory damages and those profits of Defendants that

are attributable to Defendants’ copyright infringement;

(i) Awarding Plaintiff statutory damages pursuant to 17 U.S.C. §504;

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(j) Awarding Plaintiffs exemplary, enhanced, and punitive damages;

(k) Awarding Plaintiffs their attorneys’ fees pursuant to 17 U.S.C. §505;

(l) Enjoining and restraining Defendant and its parents, subsidiaries, affiliates,

successors, predecessors, assigns, and the officers, directors, agents, servants and employees of

each of the foregoing, and those persons acting in concert or participation with any of them, from

continued trade dress infringement and unfair competition, including but not limited to

publishing and/or distributing images of its construction-themed utensils on the Dinneractive

website, Amazon and in other advertising materials, and offering for sale, selling and distributing

to the public its constructive themed utensils in the United States that infringe Constructive

Eating’s Trade Dress and compete unfairly with Plaintiff;

(m) Directing Defendant to deliver up for destruction all products, advertising

materials, labels, gins, packages or receptacles in Defendant’s possession, custody and/or

control, that include the Constructive Eating Copyrights or Trade Dress, or any other materials

confusingly similar to Constructive Eating’s Copyrights or Trade Dress;

(n) Directing Defendants to remove all depictions of Constructive Eating’s

Copyrights or Trade Dress, or any other designations derived from or confusingly similar

thereto, from any website in Defendants’ control, including but not limited to the Dinneractive

website;

(o) Ordering Defendant to disgorge profits attributable to Defendant’s trade dress

infringement and unfair competition pursuant to 15 U.S.C. § 1117;

(p) Awarding Plaintiff damages pursuant to 15 U.S.C. § 1117 sufficient to

compensate Constructive Eating for Defendant’s misrepresentations, false advertising and unfair

competition;

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(q) Awarding Plaintiff treble damages for Defendant’s willful trade dress

infringement and unfair competition pursuant to 15 U.S.C. § 1117;

(r) That this case be declared an exceptional case within the meaning of 15 U.S.C.

§ 1117 and that Plaintiff be awarded attorney’s fees, costs, and expenses incurred in connection

with this action;

(s) An award of damages, including Plaintiff’s lost profits, sufficient to compensate

Plaintiff for Defendant’s common law unfair competition;

(t) An award of damages sufficient to compensate Plaintiff for Defendant’s violation

of the Michigan Consumer Protection Act, and any trebling or enhanced damages and attorney’s

fees available under the law;

(u) Directing Defendant to pay all costs incurred by Plaintiff related to this action;

and

(v) An award of any further relief that this Court deems just and proper.

Respectfully submitted,

By: /James K. Cleland/


James K. Cleland, P68507
John Lingl, P67849
BRINKS GILSON & LIONE
524 S Main St. – Suite 200
Ann Arbor, Michigan 48104
Tel: (734) 302-6000
jcleland@brinksgilson.com

Counsel for Plaintiff Constructive Eating, Inc.


Dated: March 1, 2019

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EXHIBIT A
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EXHIBIT B
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EXHIBIT C
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EXHIBIT D
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