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Case 2:19-cv-00461-EJF Document 2 Filed 07/01/19 Page 1 of 7

Karthik Nadesan (10217) Email: karthik@nadesanbeck.com


David Jones (10134) Email: david@nadesanbeck.com
NADESAN BECK P.C.
8 East Broadway, Suite 625
Salt Lake City, Utah 84111
Telephone: (801) 363-1140
Attorneys for Datafly Commerce, LLC.

UNITED STATES DISTRICT COURT


DISTRICT OF UTAH, CENTRAL DIVISION

DATAFLY COMMERCE LLC


COMPLAINT
Plaintiff,
v.
Case No. _____________
WELLAX GEAR SRL, a Romanian
corporation, DOES 1-10, Judge _________________

Defendants.

Plaintiff Datafly Commerce LLC (“Datafly”), through counsel, complains against


Defendants Wellax Gear SRL and Does 1-10 (collectively, “WellaX”), as follows:

PARTIES, JURISDICTION, & VENUE


1. Plaintiff Datafly is a Utah limited liability company with its principal place of
business in Salt Lake County.
2. Upon information and belief, Defendant WellaX Gear SRL is a company organized
and existing under the laws of Romania and having its principal place of business in Romania.
3. Datafly is presently uninformed of the true names or capacities of the Defendants
sued herein under the fictitious names Does 1-10. Upon information and belief, WellaX is doing
business through these Defendants and/or these Defendants engaged in, assisting, or are in some
manner responsible for, the wrongful conduct and damages to Datafly alleged herein. Datafly
therefore sues these Doe Defendants by such fictitious names and will amend or seek leave to
amend this pleading to explain Doe Defendants’ involvement in the wrongful conduct alleged
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herein and to substitute the true names and capacities of said Doe Defendants when they are
ascertained.
4. This Court has subject matter jurisdiction over this action under 28 U.S.C. § 1331
as it involves a federal question; under 28 U.S.C. § 2202 as it involves claims related to a patent;
and under 15 U.S.C. § 1121 as it involves claims related to unfair competition.
5. This Court has supplemental jurisdiction over the claims that arise under Utah law
pursuant to 28 U.S.C. § 1367(a) because both the state and federal claims are derived from a
common nucleus of operative facts and considerations of judicial economy dictate the state and

federal issues be consolidated for a single trial.


6. Venue is proper in this Judicial District pursuant to 28 U.S.C. § 1391(c)(3) because
WellaX Gear SRL is a Romanian company and, upon information and belief, has no principal
place of business anywhere in the United States.
7. Upon information and belief, WellaX markets, solicits sales, licenses,
manufactures, sells, and/or distributes products in Utah, including the infringing product that is the
subject of this litigation.
8. Thus, this Court has specific personal jurisdiction under Utah’s long-arm statute,
Utah Code Ann. § 78B-3-205, because (1) WellaX has transacted business within Utah; (2) has
supplied services or goods in Utah; (3) has caused injury within Utah through its conduct giving
rise to this Complaint; and (4) jurisdiction based on WellaX’s contacts with Utah (including, but
not limited to, its marketing and/or sales of goods or services) is not inconsistent with the
Constitution of the State of Utah or the Constitution of the United States.
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GENERAL ALLEGATIONS
9. Datafly realleges and incorporates the preceding paragraphs of this Complaint.
10. Doing business under the name Wildhorn Outfitters, Datafly is the exclusive
manufacturer and seller of the Wildhorn Outfitters Sand Escape Beach Blanket (the “Datafly
Blanket”). A photograph of the Datafly Blanket is attached at Exhibit A.
11. As a result of Datafly’s marketing, the design of the Datafly Blanket, and its high
quality, the Datafly Blanket is one of the top selling beach blankets on Amazon.com.
12. In fact, the listing for the Datafly Blanket on the Amazon.com website has
generated at least 673 customer reviews with an average rating of 4.5 out of 5 stars.

13. Datafly owns the rights, title, and interest to U.S. Design Patent No. D826,598(“the
‘598 patent”), entitled “OUTDOOR BLANKET.” A copy of the ‘598 patent is attached at Exhibit
B.
14. Upon information and belief, WellaX has manufactured, distributed, marketed, and
sold, and continues to distribute, market, and sell, the “Wellax Sandfree Beach Blanket,” a line of
beach blankets (the “WellaX Blanket”). A photograph of the WellaX Blanket is attached at Exhibit
C.
15. Datafly and WellaX are competitors in the outdoor blanket market in that the
Datafly Blanket and the WellaX Blanket are similar products that are marketed and sold to the
same target customers through the same sales channels.
16. On or about May 5, 2019, Datafly notified WellaX that the WellaX blanket
infringed on the ‘598 Patent.
17. After being notified that the WellaX Blanket infringed on the ‘598 blanket, WellaX
continued to distribute, market, and/or sell the WellaX Blanket.
18. Furthermore, upon information and belief, in an attempt to conceal its continuing
infringement, WellaX photo-shopped some of the marketing material for the WellaX Blanket to
remove certain components such as sand anchors and a stuff sack so that the WellaX Blanket no
longer resembled the ‘598 Blanket.
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19. However, WellaX continued to sell the version of the WellaX Blanket that infringed
the ‘598 Patent.

FIRST CAUSE OF ACTION


(INFRINGEMENT OF THE ‘598 PATENT)
20. Datafly realleges and incorporates the preceding paragraphs of this Complaint.
21. The ‘598 Patent was duly and legally issued on August 28, 2018. Datafly is the
sole owner of the ‘598 Patent.
22. WellaX is infringing the ‘598 Patent by making, manufacturing, promoting,

marketing, advertising, distributing, importing, offering for sale and/or selling the WellaX Blanket,
which falls within the scope of the ‘598 Patent.
23. A comparison of the WellaX Blanket and the ‘598 Patent reveals, at a minimum,
the following substantial similarities:

a. The stuff sack for each blanket is positioned in the center, between two sand
anchor pockets.

b. Both blankets have identical decorative stitching.

c. Both blankets have four rectangular sand anchor pockets attached at the same
locations in the corners of the blanket.

d. Both blankets have a single rectangular storage pocket to secure personal items
attached in the center of the blanket directly opposite the stuff sack.

24. The resemblance between the WellaX Blanket and the ‘598 Patent is so similar that
it would induce an ordinary observer to purchase one supposing it to be the other.
25. Datafly has been damaged and has suffered lost profits and irreparable injury due
to WellaX’s acts of infringement, and will continue to suffer damages and irreparable injury unless
their acts are permanently enjoined.
26. WellaX has willfully infringed the ‘598 Patent, entitling Datafly to enhanced
damages under 35 U.S.C. § 284.
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27. Furthermore, because of WellaX’s awareness of the Datafly Blanket and the ‘598
Patent, this case is exceptional and Datafly is entitled to recover its attorneys’ fees in prosecuting
this action pursuant to 35 U.S.C. § 285.

SECOND CAUSE OF ACTION


(FALSE DESCRIPTION, 15 U.S.C. § 1125)
28. Datafly realleges and incorporates the preceding paragraphs of this Complaint.
29. WellaX’s marketing material showing a a version of the WellaX Blanket without
sand anchors and a stuff sack, when the product actually shipped to customers was the version of

the WellaX Blanlet with sand anchors and a stuff sack, constitutes a false or misleading description
of fact.
30. WellaX’s false representations misstate the characteristics and qualities of the
product being sold by Defendants.
31. WellaX’s false representations were intentional, willful, and malicious.
32. Therefore WellaX’s conduct is unlawful and in violation of 15 U.S.C. § 1125(a).
33. Accordingly, Datafly is entitled to WellaX’s profits from the unlawful sales and/or
Datafly’s lost profits; as well as reasonable attorneys’ fees and costs. Datafly is further entitled to
an injunction under 15 U.S.C. § 1116 against WellaX requiring that they remove all false
advertising for the WellaX Blanket.

THIRD CAUSE OF ACTION


(UNFAIR COMPETITION, UTAH CODE § 13-5A-103)
34. Datafly realleges and incorporates the preceding paragraphs of this Complaint.
35. WellaX’s false representations constitute unfair competition.
36. WellaX’s conduct was intentional, willful, and malicious.
37. Therefore WellaX’s conduct is unlawful and subjects them to liability under Utah
Code § 13-5a-103.
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38. Accordingly, Datafly is entitled to recovery of Datafly’s lost profits; punitive


damages; as well as reasonable attorneys’ fees and costs.

FOURTH CAUSE OF ACTION


(TRUTH IN ADVERTISING, UTAH CODE § 13-11A-1 ET SEQ.)
39. Datafly realleges and incorporates the preceding paragraphs of this Complaint.
40. WellaX’s false representations constitute deceptive trade practices under Utah
Code § 13-11a-3.
41. WellaX’s conduct was intentional, willful, and malicious.

42. Therefore WellaX’s conduct subjects them to liability under Utah Code § 13-11a-
4.
43. Accordingly, Datafly is entitled to recovery of Datafly’s lost profits; as well as
reasonable attorneys’ fees and costs.

RELIEF REQUESTED
Based on the foregoing allegations, Datafly requests that the Court enter judgment as follows:
1. Judgment that WellaX is liable for infringing the ‘598 Patent and awarding Datafly
damages consisting of its lost profits, a reasonable royalty, and/or WellaX’s total profits from sale
of the WellaX Blanket, enhanced damages based upon WellaX’s willful infringement, costs and
attorneys’ fees in this exceptional case, and pre-judgment and post-judgment interest;
2. An order permanently enjoining WellaX, their agents, servants, and any and all
parties acting in concert with any of them, from directly or indirectly infringing in any manner or
contributing in any manner to the infringement of the ’598 Patent;
3. Judgment that WellaX is liable for unfair competition in violation of the Lanham
Act and awarding Datafly damages consisting of its lost profits and/or WellaX’s total profits from
sale of the WellaX Blanket, costs and attorneys’ fees in this exceptional case, and pre-judgment
and post-judgment interest;
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4. Judgment that WellaX is liable for unfair competition in violation of Utah law and
awarding Datafly its lost profits, punitive damages, attorneys’ fees and costs, and pre-judgment
and post-judgment interest;
5. Judgment that WellaX is liable for violation of Utah’s Truth in Advertising Act and
awarding Datafly its lost profits, attorneys’ fees and costs, and pre-judgment and post-judgment
interest;
6. Datafly is entitled to such additional relief as the Court may deem just and proper.

JURY DEMAND
Datafly hereby demands a trial by jury on any matters so triable.

DATED this 1st day of July, 2019.

s/ Karthik Nadesan
NADESAN BECK P.C.
Karthik Nadesan
David Jones

Attorneys for Plaintiff Datafly Commerce,


LLC
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EXHIBIT A
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EXHIBIT B
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EXHIBIT C
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Case 2:19-cv-00461-EJF Document 2-4 Filed 07/01/19 Page 1 of 1
JS 44 (Rev. 08/18) 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


Datafly Commerce LLC WellaX Gear SRL
Does 1-10

(b) County of Residence of First Listed Plaintiff Salt Lake County, Utah County of Residence of First Listed Defendant
Romania
(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)
Karthik Nadesan, David Jones, Nadesan Beck PC, 8 East Broadway,
Suite 625, Salt Lake City, Utah 84111

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) ’ 485 Telephone Consumer
’ 160 Stockholders’ Suits ’ 355 Motor Vehicle ’ 371 Truth in Lending Act ’ 862 Black Lung (923) Protection Act
’ 190 Other Contract Product Liability ’ 380 Other Personal ’ 720 Labor/Management ’ 863 DIWC/DIWW (405(g)) ’ 490 Cable/Sat TV
’ 195 Contract Product Liability ’ 360 Other Personal Property Damage Relations ’ 864 SSID Title XVI ’ 850 Securities/Commodities/
’ 196 Franchise Injury ’ 385 Property Damage ’ 740 Railway Labor Act ’ 865 RSI (405(g)) Exchange
’ 362 Personal Injury - Product Liability ’ 751 Family and Medical ’ 890 Other Statutory Actions
Medical Malpractice Leave Act ’ 891 Agricultural Acts
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ’ 790 Other Labor Litigation FEDERAL TAX SUITS ’ 893 Environmental Matters
’ 210 Land Condemnation ’ 440 Other Civil Rights Habeas Corpus: ’ 791 Employee Retirement ’ 870 Taxes (U.S. Plaintiff ’ 895 Freedom of Information
’ 220 Foreclosure ’ 441 Voting ’ 463 Alien Detainee Income Security Act or Defendant) Act
’ 230 Rent Lease & Ejectment ’ 442 Employment ’ 510 Motions to Vacate ’ 871 IRS—Third Party ’ 896 Arbitration
’ 240 Torts to Land ’ 443 Housing/ Sentence 26 USC 7609 ’ 899 Administrative Procedure
’ 245 Tort Product Liability Accommodations ’ 530 General Act/Review or Appeal of
’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 535 Death Penalty IMMIGRATION Agency Decision
Employment Other: ’ 462 Naturalization Application ’ 950 Constitutionality of
’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 465 Other Immigration State Statutes
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):
28 U.S.C. § 2202, 15 U.S.C. § 1121
VI. CAUSE OF ACTION Brief description of cause:
Patent Infringement and 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
7/1/2019 /s/ Karthik Nadesan
FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE