IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. ORALABS, INC., a Colorado Corporation, Plaintiff, v. THE KIND GROUP LLC, a New York Limited Liability Company, Defendant.

COMPLAINT FOR DECLARATORY JUDGMENT WITH JURY DEMAND

Plaintiff OraLabs, Inc. ("OraLabs"), by and through its attorneys, for its Complaint for Declaratory Judgment against The Kind Group LLC ("Kind Group" or "Defendant"), alleges as follows: I. PARTIES 1. OraLabs is a corporation organized under the laws of Colorado with a principal

place of business at 18685 East Plaza Drive, Parker, Colorado 80134. 2. Upon information and belief, Defendant is a limited liability company organized

under the laws of the State of New York, and has its principal place of business at 307 Fifth Avenue, 5th Floor, New York, New York 10016. II. JURISDICTION AND VENUE 3. This Court has subject matter jurisdiction over this counterclaim pursuant to 28

U.S.C. 1331 and 1338(a), and Declaratory Judgment Act, 28 U.S.C. 2201 and 2202.

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Defendant has consented to personal jurisdiction because Defendant conducts

regular business within this judicial district, the activities giving rise to OraLabs' claims occurred in this judicial district, and OraLabs has been damaged in this judicial district by Defendant's conduct. 5. Venue is proper in this judicial district under 28 U.S.C. 1391(b), (c), and 1400

as a substantial part of the events giving rise to OraLabs' claims occurred in this judicial district. III. GENERAL ALLEGATIONS 6. OraLabs is a leading manufacturer and distributer of a variety of products,

including cosmetic products. OraLabs' cosmetic products include, among others, lip balm, sun care, hand sanitizer, and breath care. Within its lip balm product line, OraLabs offers a ChapIce line of products including a new product known as Chap-Ice Lip Revolution ("Lip Revo"). Lip Revo is a lip balm that comes in brightly colored container with a base portion containing the lip balm and a similarly shaped screw on top portion. A copy of informational materials for Lip Revo is attached as Exhibit A and incorporated herein by reference in its entirety. 7. Upon information and belief, Defendant is the purported assignee of United States

Design Patent No. D644,939 ("the '939 Patent"). 8. The '939 Patent identifies Jonathan Teller as the sole inventor. The '939 Patent

issued on September 13, 2011. A true and correct copy of the '939 Patent is attached as Exhibit B and is incorporated by reference in its entirety. 9. Upon information and belief, Defendant sells and/or distributes products,

including products purportedly covered by the '939 Patent in the United States and in Colorado

through a network of wholesalers and retailers. At least some of these retailers operate active websites through which Defendant's products may be purchased in Colorado. At least some of these retailers physically operate in Colorado and offer Defendant's products for sale in retail establishments in Colorado. A list of United States retailers from Defendant's website is attached as Exhibit C and incorporated by reference in its entirety. 10. On January 18, 2013, Defendant, through counsel, issued a cease and desist letter

to OraLabs via Federal Express. In its cease and desist letter, Defendant asserted its belief that OraLabs is selling, offering for sale, and/or marketing products that infringe the '939 Patent. Defendant also asserted its belief that OraLabs offers products infringe Defendant's trade dress rights. A copy of the January 18, 2013 letter is attached as Exhibit D and in incorporated by reference in its entirety. 11. No product made and sold by OraLabs, including its Lip Revo line of lip balm

products, infringe any valid claim of the '939 Patent or any valid trade dress rights of Defendant. 12. An actual controversy exists between the parties with respect to the infringement,

validity, and scope of the '939 Patent and Defendant's purported trade dress. IV. FIRST CLAIM FOR RELIEF (Declaration of Non-Infringement of the '939 Patent) 13. 14. 15. OraLabs incorporates paragraphs 1-12 as though fully set forth herein. Defendant asserts that OraLabs' Lip Revo products infringe the '939 Patent. As properly interpreted, OraLabs' Lip Revo products do not infringe upon any

valid and enforceable claim of the '939 Patent. 16. An actual and justiciable controversy has arisen between OraLabs and Defendant

concerning infringement of the '939 Patent. 3

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OraLabs is entitled to judgment from this Court declaring that the '939 Patent is

not infringed pursuant to 28 U.S.C. 2201. V. SECOND CLAIM FOR RELIEF (Declaration of Invalidity of the '939 Patent) 18. 19. OraLabs incorporates paragraphs 1-17 as though fully set forth herein. OraLabs denies that the '939 Patent is valid and asserts that the '939 Patent is

invalid pursuant to 35 U.S.C. 1 et seq., including, but not limited to, 35 U.S.C. 102, 103, and 112. 20. An actual and justiciable controversy has arisen between OraLabs and Defendant

concerning the validity of the '939 Patent. 21. U.S.C. 2201. VI. THIRD CLAIM FOR RELIEF (Declaration of No Trade Dress Infringement) 22. 23. OraLabs incorporates paragraphs 1-21 as though fully set forth herein. Defendant's purported trade dress is not distinctive and Defendant has no OraLabs is entitled to declaration that the '939 Patent is invalid pursuant to 28

enforceable trade dress rights. 24. OraLabs created its line of products in good faith, with no intention of creating

association in the minds of consumers with the claimed trade dress or with Defendant's purported rights generally. 25. OraLabs is aware of no instances of confusion or mistake between its products

and any purported rights of the Defendant.

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An actual and justiciable controversy has arisen between OraLabs and Defendant

concerning the scope and infringement of Defendant's purported trade dress rights. 27. OraLabs is entitled to declaratory judgment pursuant to 28 U.S.C. 2201 that, as

properly interpreted, OraLabs' products, including its Lip Revo line of lip balm products, do not fall within the scope of any valid or enforceable rights of Defendant and do not constitute a violation of any of Defendants purported trade dress rights, whether based upon statute, or federal, state or common law, including, but not limited to 43(a) of the Lanham Act, 15 U.S.C. 1125. VII. PRAYER FOR RELIEF WHEREFORE, OraLabs respectfully requests that the Court enter an Order for Judgment as follows: A. That Defendant the Kind Group, their agents, servants, officers, directors,

employees, attorneys, privies, representatives, successors, assigns, and parent and subsidiary entities, and any and all persons in act of concert or participation with any of them, be temporarily, preliminarily, and permanently enjoined from: 1. Threatening to assert or asserting the '939 Patent against OraLabs, its

agents, employees, suppliers or customers; 2. 3. 4. Claiming that OraLabs' products infringes any claim of the '939 Patent; Claiming that the '939 Patent is valid and/or enforceable; Threatening to assert or asserting its purported trade dress rights against

OraLabs, its agents, employees, suppliers or customers; 5

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Claiming that OraLabs' products infringe its purported trade dress; Claiming that its trade dress rights are valid and/or enforceable;

That the '939 Patent is not infringed by the importation, exportation, manufacture,

advertising, distribution, sale or use of OraLabs' products, including the Lip Revo line of lip balm products; C. D. That the '939 Patent is invalid; That Defendant's trade dress rights, if any, are not infringed by the importation,

exportation, manufacture, advertising, distribution, sale or use of OraLabs' products, including the Lip Revo line of lip balm products; E. F. That Defendant has no trade dress rights; Awarding OraLabs its attorney's fees and costs incurred in prosecuting this action,

including its expert witness fees; and G. Awarding such other and preliminary and permanent relief to OraLabs as the

Court deems equitable and appropriate.

VIII. JURY DEMAND OraLabs demands a jury trial on all issues so triable. Respectfully submitted,

DATED: January 24, 2013

By:

s/ Todd P. Blakely Todd P. Blakely tblakely@sheridanross.com SHERIDAN ROSS P.C. 1560 Broadway, Suite 1200 Denver, Colorado 80202-5141 Telephone: 303-863-9700 Facsimile: 303-863-0223 Email: litigation@sheridanross.com

ATTORNEYS FOR PLAINTIFF ORALABS, INC.