Case 2:20-cv-00478 Document 1 Filed 07/02/20 Page 1 of 17 PageID 1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

)
VIVE HEALTH LLC, a Florida limited )
liability company, ) Civil Action No.:
)
Plaintiff, ) COMPLAINT FOR DECLARATORY
) JUDGMENT
v. )
) REQUEST FOR JURY TRIAL
HITNOTION, LLC, a Michigan limited )
liability company, )
)
Defendant. )
)
)
)
)
)

Plaintiff, Vive Health LLC (“Plaintiff” or “Vive”), by and through its undersigned counsel,

and in accordance with the Federal Rules of Civil Procedure, hereby complains and alleges against

Defendant, HitNotion, LLC (“Defendant” or “HN”), as follows:

THE PARTIES

1. Vive is a Florida limited liability company located and doing business at 8955

Fontana Del Sol Way, 2nd Floor, Naples, FL 34109.

2. Upon information and belief, Defendant is a Michigan limited liability company

with a listed place of business at 3333 East Jefferson Ave, Detroit, MI 48207.

FACTUAL BACKGROUND

3. Vive is a leading online retailer for health and medical items and has sold products

through its own website and various e-retailers since 2014. One of its products is a reading pillow

with cushioned arm, back, and head supports (hereafter, the “Vive Reading Pillow”).
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4. Upon information and belief, HN owns United States Patent No. D875,432 (“the

’432 Patent”) for the ornamental design of a pillow. The ’432 patent was filed on October 19,

2017, and issued on February 18, 2020. A copy of the ’432 patent is attached hereto as Exhibit A.

5. On March 29, 2020, Amazon sent Vive a notice (the “Amazon Notice”) that Vive’s

Amazon Standard Identification Number (“ASIN”) B07D5FRBB8, corresponding to a listing

offering the Vive Reading Pillow for sale, had been delisted based upon “a report from a rights

owner” that the Vive Reading Pillow infringes the ’432 Patent.

6. The Complaint ID was listed as 6904205541, but the actual complaint filed with

Amazon (the “Amazon Complaint”) was not included with the Amazon Notice. A copy of the

Amazon Notice is attached hereto as Exhibit B.

7. The Amazon Notice identified Divya Kumar Soti (“Mr. Soti”), with an email

address of divya@sotilawassociates.com, as “the rights owner.”

8. The Amazon Notice instructed Vive to contact the rights owner to request a

retraction of the Amazon Complaint.

9. If the dispute were to be resolved, the Amazon Notice instructed the rights owner

to send a retraction to notice-dispute@amazon.com or to use the retraction function in Amazon’s

Brand Registry to withdraw its complaint, and that Amazon would then reinstate the listing.

10. Shortly after receiving the Amazon Notice, Vive sent both Mr. Soti and HN a letter

explaining the many reasons the Vive Reading Pillow does not infringe the ’432 Patent and the

severe economic harm imposed on Vive by Defendant’s baseless infringement allegation, and

requesting that HN immediately withdraw the Amazon Complaint.

11. Vive’s letter informed HN that if HN did not withdraw the Amazon Complaint by

April 21, 2020, Vive would “vigorously pursue claims” against HN. The parties have exchanged

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various correspondence over the ensuing months in which Vive has further explained its

noninfringement position and explained the ’432 Patent is invalid.

12. There is a substantial, continuing, and justiciable controversy between Vive and

HN as to whether Vive infringes any valid and enforceable claim of the ’432 Patent, whether the

’432 Patent is valid, and HN’s right to prevent Vive’s offer to sell and sale of the Vive Reading

Pillow.

JURISDICTION AND VENUE

13. On information and belief, this Court has personal jurisdiction over HN by virtue

of the fact that it advertises and sells products, including products it contends fall within the claim

of the ’432 Patent, to residents of the State of Florida. This Court also has personal jurisdiction

over HN by virtue of the fact that HN puts products it contends fall within the claim of the ’432

Patent into the stream of commerce and, on information and belief, those products are sold to

residents of this judicial district. Finally, this Court has personal jurisdiction over HN because HN

has purposefully directed patent enforcement activities at this judicial district by submitting a

patent infringement complaint regarding the ’432 Patent to Amazon against Plaintiff; and, this

action arises directly out of those enforcement activities. Vive has its principal place of business

in this judicial district and Vive’s sales of the Accused Product on Amazon have been stopped as

a result of HN’s complaint regarding the ’432 Patent to Amazon. Thus, Vive is sustaining damages

as a result of HN’s actionable conduct within this judicial district.

14. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(2) in that this action

arises out of threats made, and actions taken, against Vive by HN, a substantial part of which

occurred in this judicial district. Venue is also proper in this district pursuant to 28 U.S.C. §

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1391(d), because HN is a limited liability company subject to personal jurisdiction in this judicial

district.

15. In connection with this action, HN has contended that it is the owner of the ’432

Patent and that Vive is infringing HN’s rights in, and to, the ’432 Patent by manufacturing, using,

offering to sell, selling, and importing to the U.S. the Vive Reading Pillow. Accordingly, a real

and justiciable controversy exists between Vive and HN regarding infringement and validity of the

’432 Patent.

16. Pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202,

Vive is entitled to a judicial declaration regarding the Parties’ respective rights and obligations vis-

à-vis the ’432 Patent and Vive’s right to manufacture, use, offer to sell, sell, and/or import to the

U.S. the Vive Reading Pillow. Thus, this Court has subject matter jurisdiction over Vive’s claims

pursuant to 28 U.S.C. §§ 1331, 1338(a), 2201 and 2202.

FIRST CAUSE OF ACTION

Declaratory Judgement of Non-Infringement of the ’432 Patent

17. Vive realleges and incorporates the foregoing paragraphs 1 through 16, as though

fully set forth herein.

18. HN alleges Vive infringes the ’432 patent by selling and offering to sell the Vive

Reading Pillow.

19. HN submitted the Amazon Complaint alleging infringement of the ’432 patent by

Vive, thereby causing Amazon to remove Vive’s ASIN B07D5FRBB8 and preventing Vive from

offering to sell, or selling, the Vive Reading Pillow through Amazon.com.

20. Vive alleges that it has not engaged in any conduct constituting infringement of the

’432 Patent under any theory, including literal infringement or infringement under the doctrine of

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equivalents; and, it requests a judicial declaration that Vive has not infringed, and does not infringe,

any claim of the ’432 Patent.

SECOND CAUSE OF ACTION

For Judicial Declaration of Invalidity of the ’432 Patent

21. Vive realleges and incorporates the foregoing paragraphs 1 through 20, as though

fully set forth herein.

22. On information and belief, the ’432 Patent is invalid under the provisions of Section

102 and/or 103 of Title 35 of the United States Code. Accordingly, Vive requests a judicial

declaration that the ’432 Patent is invalid.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Vive prays:

A. For a judicial declaration in favor of Vive and against HN on Vive’s claims against

HN stating:

a. that Vive has not, and does not, infringe literally, or under the doctrine of

equivalents, any claim of the ’432 Patent;

b. that the ’432 Patent is invalid for failure to comply with one or more of the

requirements of 35 U.S.C. §§ 102 and/or 103;

B. For a judgment enjoining HN, its parents, affiliates and/or subsidiaries, and its

agents, representatives, attorneys and those persons in active concert or participate with them who

receive actual notice thereof, from threatening or initiating infringement litigation against Vive or

any of its customers, dealers or suppliers, or any prospective or present sellers, dealers, distributors

or customers of Vive, or charging any of them either orally or in writing with infringement of the

’432 Patent during the period of enforcement of that patent;

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C. For a finding that this action is an exceptional case within the meaning of 35 U.S.C.

§ 285 and that Vive is entitled to recover its reasonable attorneys’ fees upon prevailing in this

action;

D. For a finding that this action is an exceptional case within the meaning of 15 U.S.C.

§ 1117 and that Vive is entitled to recover its reasonable attorneys’ fees upon prevailing in this

action;

E. For an award of costs and other relief, both legal and equitable, to which Vive may

be justly entitled; and

F. For such other and further relief as the Court deems just and proper.

REQUEST FOR JURY TRIAL

Plaintiff requests trial by jury on all issues so triable in this action.

Dated this 2nd day of July 2020.

WOODS, WEIDENMILLER, MICHETTI &

RUDNICK, LLP

By: /s/ Gregory N. Woods

Gregory N. Woods
Florida Bar No.: 175500
Jessica F. Tolin
Florida Bar No. 124266
9045 Strada Stell Court, Suite 400
Naples, FL 34109
(239) 325-4070 – Telephone
(239) 325-4080 – Facsimile
gwoods@lawfirmnaples.com (primary)
jtolin@lawfirmnaples.com (secondary)
mdipalma@lawfirmnaples.com (secondary)
service@lawfirmnaples.com
Attorneys for Plaintiff

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EXHIBIT "A" I 11111 1 111111 1 1 1111 1111 1 1111 111 1 11111 111 1 1111111 11 I IIIII I IIII IIII
US00D875432S

c12) United States Design Patent c10) Patent No.: US D875,432 S

Brown (45) Date of Patent: ** Feb. 18, 2020

(54) PILLOW D305,711 S * 1/1990 Wood ........................... D21/625

4,905,332 A * 3/1990 Wang . A47C1/146
(71) Applicant: Hit Notion, LLC, Detroit, MI (US) 297/380
5,423,098 A 6/1995 Swezey
D373,275 S * 9/1996 Bell ............................... D6/601
(72) Inventor: Vita-Anne Brown, Detroit, MI (US) D376,503 S l2/1996 Petersson
5,895,365 A * 4/1999 Tomlinson . A47C20/027
(73) Assignee: Hit Notion, LLC, Detroit, MI (US) 297/149
D427,833 S 7/2000 Robinson
(**) Term: 15 Years 6,357,061 Bl* 3/2002 Gonzalez ................. A47K 3/12
4/580
(21) Appl. No.: 29/622,761 (Continued)

(22) Filed: Oct. 19, 2017 OTHER PUBLICATIONS

(51) LOC (12) Cl. ............................................... 06-09
(52) U.S. Cl. Bed rest pillow-for home (on-line), dated Aug. 3, 2018. Retrieved
USPC ........................................................... D6/601 from Internet Oct. 23, 2019, URL: http://for-home.info/bed-rest­
pillow/ (2 pages) (Year: 2018).*
(58) Field of Classification Search
USPC ........................................... D6/601, 382, 383 (Continued)
CPC ....... A47C 7/383; A47C 16/005; A47C 20/00;
A47C 20/02; A47C 20/027; A47C 20/04; Primary Examiner - Kevin K Rudzinski
A47G 2009/1018; A47G 9/10; A47G Assistant Examiner - Kimberly Barnes
9/1081; A47G 9/0253; A47G 9/1045; (74) Attorney, Agent, or Firm - Brett A. Schenck
A47G 9/1072; A61G 7/072; A61G
13/121; A61G 7/07; A61G 13/1225 (57) CLAIM
See application file for complete search history. The ornamental design for a pillow, as shown and described.
(56) References Cited
DESCRIPTION
U.S. PATENT DOCUMENTS
FIG. 1 is a top, front, right perspective view of a pillow,
1,015,812 A * 1/1912 Madsen A47C20/027 showing my new design;
5/633 FIG. 2 is a front view thereof;
2,489,693 A 6/1948 Williams
2,508,177 A * 5/1950 Levine . A47C20/027 FIG. 3 is a right side view thereof;
297/440.17 FIG. 4 is a left side view thereof;
3,137,012 A * 6/1964 Halterman . A47C20/027 FIG. 5 is a rear view thereof;
5/633 FIG. 6 is a top view thereof;
3,273,174 A * 9/1966 Cassini A47C20/027 FIG. 7 is a bottom view thereof; and,
5/633 FIG. 8 is a top, front, right perspective view thereof with the
3,635,528 A * 1/1972 Strom . A47C4/02
297/452.41 head pillow portion positioned downwardly from that shown
3,840,916 A * 10/1974 Jennings . A47C4/54 in FIG. 1.
5/655
4,213,213 A 7/ 1980 Burnett 1 Claim, 7 Drawing Sheets
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EXHIBIT1 "B"
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-
From: notice-dispute@amazon.com <notice-dispute@amazon.com>
Date: Sun, Mar 29, 2020 at 12:03 PM
Subject: Notice: Policy Warning
To: <accounts@igbrands.com>

Hello,

We removed some of your listings because we received a report from a rights owner that they infringe the following
patent(s):

-- Patent number: D875432

The listings we removed are at the bottom of this message.

Why did this happen?

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 Case 2:20-cv-00478 Document 1 Filed 07/02/20 Page 17 of 17 PageID 17
One or more of your listings may be infringing the intellectual property rights of others.

We’re here to help.

If you need help better understanding what is causing this, please search for “Intellectual Property Violations” in
Seller Central Help (https://sellercentral.amazon.com/gp/help/external/201361070).

How do I reactivate my listing?

To reactivate your listing you may provide the following:
-- A letter of authorization or a licensing agreement from the manufacturer or Rights Owner demonstrating that your
product sales are lawful to notice-dispute@amazon.com. External links are not accepted. For security reasons, we
only accept attachments in the following file formats: .jpeg, .jpg, .pjpeg, .gif, .png, .tiff.

Have your listings been removed in error?

If you have never sold or listed the product, please reach out to us and tell us.
If you think that the rights owner has made an error in sending the notice, please reach out to the rights owner and
ask for a retraction of the notice. To retract the complaint, the rights owner must send the retraction to us at notice-
dispute@amazon.com or use the retraction function in Brand Registry.

These are the rights owner’s contact details:

-- NAME OF RIGHTS OWNER: Divya Kumar Soti
-- :EMAIL ADDRESS OF RIGHTS OWNER:
divya@sotilawassociates.com

We can only accept retractions if the rights owner clearly states that they made an error. For any other reason,
please explain to us why you were warned in error so that we can investigate the case.

What happens if I do not provide the requested information?

If we do not receive the requested information, your listings will remain inactive.

If you do not provide the information within 90 days, you will receive a request to remove the inventory associated
with these listing per our removal policy (https://sellercentral.amazon.com/gp/help/202000820). Failure to address
this request can lead to destruction of your inventory.

ASIN: B07D5FRBB8
Infringement type: Patent Number: D875432
Complaint ID: 6904205541

You can view your account performance

(https://sellercentral.amazon.com/performance/dashboard?reftag=email warn) or select Account Health on the
home screen of the Amazon Seller app on your iOS or Android device. The Account Health dashboard shows how
well your account is performing against the performance metrics and policies required to sell on Amazon.

-- iOS: https://itunes.apple.com/us/app/amazon-Seller/id794141485
-- Android: https://play.google.com/store/apps/details?id=com.amazon.sellermobile.android&hl...

Sincerely,
Amazon.com