IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION ______________________________ FLETCHER MORGAN,

Plaintiff, v. AVON PRODUCTS, INC., Defendant. ____________________________ ) ) ) ) ) ) ) ) ) ) )

Civil Action No. TBD

JURY TRIAL DEMANDED

COMPLAINT Plaintiff Fletcher Morgan (Mr. Morgan) brings this action for patent infringement against defendant Avon Products, Inc. (Avon) and seeks damages and injunctive relief. Mr. Morgan alleges as follows: NATURE OF THE ACTION 1. This is an action for patent infringement arising under the Patent Laws of the

United States, 35 U.S.C. 1 et seq., alleging infringement of United States Patent Numbers D520,807 (the 807 patent) and 7,478,736 (the 736 patent) (collectively, the patents). Copies of both the 807 patent and 736 patent are attached hereto as Exhibit A and Exhibit B, respectively, and are incorporated herein by reference in their entireties. JURISDICTION AND VENUE 2. This Court has exclusive subject matter jurisdiction over this action under 28

U.S.C. 1331 and 1338(a).

3.

This Court has personal jurisdiction over Avon because Avon is registered to do

business in this state and in this district. Avon conducts business in this district and has infringed, contributed to the infringement of, and/or actively induced others to infringe the patents in this district as alleged in this Complaint at a minimum by offering for sale the Avon 100 Piece Cake Decorating Letter Press Set (the Avon 100 Piece Set) or selling products which fall within the scope of the claim(s) of the patents. 4. Avon resides in this district because it operates an interactive web site which is

directed to residents of the Eastern District of Missouri. Through this interactive web site, a Missouri consumer can review detailed information about Avon, can purchase Avon products can exchange electronic mail with Avon, can create a personalized Wish List, can shop online with an Avon representative, and, by entering his or her street address, the Avon website can Recommend a Representative in my area to a Missouri consumer. 5. Venue is proper in this Court pursuant to 28 U.S.C. 1391(b), 1391(c) and/or

1400(b), in that a substantial part of the events giving rise to Mr. Morgans claims occurred in the Eastern District of Missouri and the Defendant is registered to do business here. 6. Moreover, upon information and belief and after a reasonable opportunity for

further discovery, Avon Independent Sales Representative(s) reside in this district who have used, offered for sale and/or sold the accused products in this district. 7. Upon information and belief and after a reasonable opportunity for further

discovery, Avon Independent Sales Representative(s) residing in this district have knowledge of events giving rise to Mr. Morgans claims, including but not limited to facts regarding Avons infringement of, contribution to the infringement of, and/or active inducement of others to infringe the patents in this district as alleged in this Complaint at a minimum by offering for sale

the Avon 100 Piece Set or selling products which fall within the scope of the claim(s) of the patents. THE PARTIES 8. 9. Plaintiff Mr. Morgan is an individual residing in Pinellas County, Florida. Upon information and belief and after a reasonable opportunity for further

discovery, Defendant Avon Products, Inc. is a corporation organized and existing under the laws of the state of New York, having its principal place of business at 1345 Avenue of the Americas, New York, New York, 10105. THE PATENTS IN SUIT 10. The 807 patent entitled Ergonomic Frosting Applicator Nozzle was duly and

legally issued on May 16, 2006. 11. 12. instant action. 13. The 807 patent claims, [t]he ornamental design for an ergonomic frosting Mr. Morgan is the sole inventor of and owns all rights in the 807 patent. The 807 patent is valid and enforceable and has been at all times relevant to the

applicator as shown and described. Exhibit A. 14. The 736 patent entitled Ergonomic Frosting Applicator was duly and legally

issued on January 20, 2009. 15. 16. instant action. 17. The 736 patent claims, inter alia, a hand-held icing dispenser. See Exhibit B, Mr. Morgan is the sole inventor of and owns all rights in the 736 patent. The 736 patent is valid and enforceable and has been at all times relevant to the

claims 1-9, cols. 6-8. 3

18.

For example, claim 1 of the '736 patent provides: 1. A hand-held icing dispenser for use by a person in decorating a cake with icing dispensed through an icing tip, comprising, a dispensing nozzle with a cylindrical base section having a threaded exterior surface, an intermediate funnel section integrally formed with said cylindrical base section, said funnel section being formed with a tubular dispensing section angularly extending away from the center axis of the cylindrical base section, said funnel section forming a flared end which extends out past the outer surface of said cylindrical base forming a stop, said tubular dispensing section having an external threaded section at its distal end, a ring member adapted to be mounted to said cylindrical base section to hold a flexible bag secured to said cylindrical base section, and a decorator tip removably mounted on said the tubular dispensing section. MR. MORGANS PATENTED PRODUCT

19.

In 2007, Mr. Morgan began marketing and selling the Betty Crocker 100 Piece

Cake Decorating Kit (Mr. Morgans 100 Piece Kit or 100 Piece Kit) in the United States. 20. Mr. Morgan used the trademark Betty Crocker and design under license from

General Mills, Inc. 21. 22. Mr. Morgans 100 Piece Kit falls within the scope of the patents. Mr. Morgans 100 Piece Kits instruction booklet contains the language U.S. and

International Patents Pending. Exhibit C at 12.

23.

Mr. Morgan himself coordinated the manufacture of his 100 Piece Kit in China,

and contracted with marketing firms to assist him in selling his 100 Piece Kit in the United States, including in Wal-Mart Stores, through television commercials and in catalogs. 24. Mr. Morgans 100 Piece Kit was marketed with the logo As Seen on TV. THE INFRINGING PRODUCT Avons Infringement of the 807 and 736 Patents 25. Defendant Avon, within the United States, manufactures, uses, offers for sale, or

sells ergonomic frosting applicators in the form of the Avon 100 Piece Set. By doing so, Avon has infringed, contributed to the infringement of, and/or actively induced others to infringe the patents. 26. For example, as shown in Figure 1 below, the Avon 100 Piece Set includes an

Applicator which is identical to the dispensing nozzle claimed in the 807 patent. Figure 1

Avon 100 Piece Set Applicator 27.

807 Applicator Nozzle (Fig. 2)

In addition, the Avon 100 Piece Set falls within the claims of the 736 patent

because the Avon 100 Piece Set includes a number of dispensing components claimed in the 736 patent, including but not limited to the dispensing nozzle, ring member (shown in Figure 2 below), decorator tips, and flexible plastic bags.

Figure 2

Avon 100 Piece Set Icing Bag Retainer Ring

736 Patent Ring Member (Fig. 7)

Avons Access to Mr. Morgans Patented Product 28. Upon information and belief and after reasonable opportunity for further

discovery, Avon began selling the Avon 100 Piece Set in 2011, well after Mr. Morgan filed for and secured the patents, and well after Mr. Morgan began selling his patent-protected 100 Piece Kit. 29. Upon information and belief and after reasonable opportunity for further

discovery, Avon used Mr. Morgans 100 Piece Kit as a prototype for its Avon 100 Piece Set. 30. For example, the contents of the Avon 100 Piece Set are practically identical to

that of Mr. Morgans 100 Piece Kit. See generally, Figure 3 below.

Figure 3

Avon 100 Piece Set 31.

Mr. Morgans 100 Piece Kit

In more detail, the Applicator in the Avon 100 Piece Set is identical to the

patented nozzle in Mr. Morgans 100 Piece Kit, as shown in Figure 4 below. Figure 4

Avon 100 Piece Set Applicator 32.

Mr. Morgans 100 Piece Kit Applicator

Additionally, the ring in the Avon 100 Piece Set is identical to the ring in Mr.

Morgans 100 Piece Kit, as shown in Figure 5 below.

Figure 5

Avon 100 Piece Set Icing Bag Retainer Ring 33.

Mr. Morgans 100 Piece Kit Bag Retainer Ring

In addition to the dispensing nozzle and the ring member, the Avon 100 Piece Set

includes decorator tips and flexible plastic bags (as shown in Figure 3 above), dispensing components identified in claims of the 736 patent. 34. Upon information and belief and after reasonable opportunity for further

discovery, Avon also copied language from the instruction manual included in Mr. Morgans 100 Piece Kit and incorporated this copied language into the instruction manual included in the Avon 100 Piece Set. See, e.g., compare Exhibit C at 2 with Exhibit D at 2. COUNT I AVONS INFRINGEMENT OF THE 807 PATENT 35. 36. Mr. Morgan incorporates by reference the allegations of paragraphs 1-33. Avon has directly or indirectly infringed the 807 patent at a minimum by making,

using, selling, offering for sale and importing products that fall within the scope of the 807 patent, including, but not limited to, the Avon 100 Piece Set. 37. Upon information and belief, Avon has infringed the 807 patent in this district

and elsewhere in the United States.

38.

Avon has caused and will continue to cause Mr. Morgan substantial damage and

irreparable injury by virtue of its continuing infringement. 39. Mr. Morgan is entitled to recover from Avon the damages sustained by Mr.

Morgan as a result of Avons wrongful acts in an amount subject to proof at trial and an injunction preventing Avon from continuing its wrongful acts. 40. Upon information and belief and after an opportunity for further discovery,

Avons infringement of the 807 patent is willful and deliberate. COUNT II AVONS INFRINGEMENT OF THE 736 PATENT 41. 42. Mr. Morgan incorporates by reference the allegations of paragraphs 1-39. Avon has directly or indirectly infringed the 736 patent at a minimum by making,

using, selling, offering for sale and importing products that fall within the scope of the 736 patent, including, but not limited to, the Avon 100 Piece Set. 43. Upon information and belief, Avon has infringed the 736 patent in this district

and elsewhere in the United States. 44. Avon has caused and will continue to cause Mr. Morgan substantial damage and

irreparable injury by virtue of its continuing infringement. 45. Mr. Morgan is entitled to recover from Avon the damages sustained by Mr.

Morgan as a result of Avons wrongful acts in an amount subject to proof at trial and an injunction preventing Avon from continuing its wrongful acts. 46. Upon information and belief and after an opportunity for further discovery,

Avons infringement of the 736 patent is willful and deliberate. WHEREFORE, Mr. Morgan respectfully requests that the Court enter a judgment as follows: 9

A. B.

That Defendant has infringed the patents under 35 U.S.C. 271; Permanently enjoining and restraining Defendant, its officers, directors, agents,

servants, employees, licensees, successors, assigns, those in concert and participation with them, and all persons acting on their behalf or within their control under 35 U.S.C. 283 from further acts that infringe the patents, including but not limited to, making, using, selling, offering to sell, importing, exporting, advertising, or otherwise using, contributing to the use of, or inducing the use of all infringing products produced by Defendant; C. Requiring Defendant to: 1. Send a copy of any decision in this case in favor of Mr. Morgan to each person or entity to whom Defendant has sold or otherwise distributed any products found to infringe the patents and informing such persons or entities of the judgment and that the sale or solicited commercial transaction was wrongful; 2. Recall and collect from all persons and entities that have purchased wholesale or are a distributor of any and all products found to infringe the patents that were made, offered for sale, sold, or otherwise distributed by Defendant, or anyone acting on its behalf; 3. Destroy or deliver to Mr. Morgan all infringing products produced by Defendant; and, 4. File with the Court and serve upon Mr. Morgan, within thirty (30) days after entry of final judgment in this case, a report in writing and subscribed under oath setting forth in detail the form and manner in which Defendant has complied with the Courts orders as prayed for.

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D.

Awarding Mr. Morgan patent infringement damages and pre-judgment interest

pursuant to 35 U.S.C. 284 including, but not limited to, lost profits and/or a reasonable royalty; E. F. Awarding treble damages for willful infringement pursuant to 35 U.S.C. 284; Declaring the case exceptional and awarding Mr. Morgan reasonable costs and

attorneys fees pursuant to 35 U.S.C. 285; G. require. JURY DEMAND Mr. Morgan requests a jury trial. Respectfully submitted, PLAINTIFF FLETCHER MORGAN By its attorneys, SIMMONS BROWDER GIANARIS ANGELIDES & BARNERD Granting Mr. Morgan such other and further relief as justice and equity may

Dated: March 6, 2012

By: ___/s/ Sarah S. Burns_________ Sarah S. Burns E.D.Mo. Bar No. 56554 Jo Anna Pollock E.D.Mo. Bar No. 50430 One Court Street Alton, IL 62002 (618) 259-2222 (618) 259-2251-facsimile sburns@simmonsfirm.com

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