JUDGE CAPRON?

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ARTIS LLC,

Case No.

Plaintiff,

-against-

COMPLAINT

STW ENTERPRISE, INC. D/B/A/ CAILYN

COSMETICS,

Jury Trial Demanded

Defendant.

'>

Plaintiff Artis LLC ("Artis" or "Plaintiff), by and through its undersigned counsel, GJ_zeit,o
C/5

O'Connor, for its Complaint against Defendant STW Enterprise, Inc. d/b/a Cailyn Cosmetics5
o

("STW" or "Defendant") alleges as follows:

PRELIMINARY STATEMENT
rV

This is an action for infringement of Artis' United States Patent No. D699,041 under the
Patent Act, 35 U.S.C. 271, based on Defendant's unauthorized manufacture, use, importation,

offer for sale, and/or sale of certain infringing cosmetic brushes in the United States.
PARTIES

1.

Artis is a New Jersey limited liability company with a principal place of business

located at 299 Pavonia Avenue, Jersey City, New Jersey 07302.

2.

Upon information and belief, Defendant is a California corporation with a

principal place of business located at 10450 Pioneer Blvd., Santa Fe Springs, California 90670.

LEGAL\21648748\1

E?

JURISDICTION AND VENUE

3.

This is an action for patent infringement in violation of the patent laws of the

United States, 35 U.S.C. 271 etseq.

4.

This court has original jurisdiction over the subject matter of this action pursuant

to 28 U.S.C. 1331 and 1338(a) because this action involves claims arising under the patent
laws of the United States.

5.

This Court has personal jurisdiction over Defendant because, among other

reasons, upon information and belief, it has derived revenue from the sales of products in this

District, it has systematic and continuous business contacts with this District and it has directly
committed acts of patent infringement against the asserted patent referenced below in this
District.

6.

Venue is proper in this District under 28 U.S.C. 1391(b) and 1400(b) because,

among other reasons, Defendant has committed acts of patent infringement in this District and
because Defendant is subject to personal jurisdiction in this District.
FACTS

7.

For the last approximately six years, Artis has been designing, manufacturing

and selling a wide variety of unique and proprietary cosmetic brushes.

8.

In or about January 2013, Plaintiff created and launched a line of cosmetic

brushes, called the "Elite Collection," that have a unique and ornamental design. Artis'
cosmetic brushes have been featured in numerous publications including Harper's Bazaar and
Allure.

9.

Plaintiffs innovative designs for its cosmetic brushes are protected by various

intellectual property rights including a design patent issued by the United States Patent and
Trademark Office (the "USPTO").
2
LEOAL\21648748\l

10.

On or about February 11, 2014, the USPTO issued U.S. Design Patent No.

D699,041 (the '"041 Patent") entitled "Cosmetic Brush," claiming an ornamental design for a
cosmetic brush. Artis is the owner by assignment of all right, title and interest in the '041
Patent. A true and correct copy of the '041 Patent is attached as Exhibit A to this Complaint
and is incorporated herein.

11.

Defendant has and continues to infringe the '041 Patent by making, using,

selling and/or offering for sale a line of cosmetic brushes under the brand name "O! WOW

BRUSH" (hereinafter the "Infringing Brushes") in the United States as well as importing into the
United States Infringing Brushes that embody or use the inventions claimed in the '041 Patent.

12.

By way of example, a side-by-side comparison of an Infringing Brush and

Figure 3 of the '041 Patent is shown below:

'041 Patent Drawing

^
^.

Image of Infringing Brush

f-ii^~--'

"_&_*!

FIG. 3

13.

Upon information and belief, Defendant sells the Infringing Brushes directly to

consumers via its Internet website located at cailyncosmetics.com as well as through national
retailers such as amazon.com.

14.

Defendant has known of the existence of the '041 Patent, and its acts of

infringement have been willful and in disregard for the '041 Patent, without any reasonable basis
for believing that it had a right to engage in the infringing conduct.
3
LEGAL\21648748\1

15.

Specifically, on or about August 8, 2014, the manufacturer of Artis' cosmetic

brush products, with Artis' consent, sent a letter to Defendant alleging that Defendant is
infringing Artis' patent rights.

16.

On or about August 19, 2014, counsel for Defendant, responding to the August

8, 2014 letter on Defendant's behalf, requested a copy of the relevant patent.

17.

On or about September 5, 2014, counsel for Artis responded directly to

Defendant's counsel's August 9, 2014 letter by enclosing a copy of the '041 Patent and again
demanding that Defendant cease and desist its acts of infringement. Counsel for Defendant did
not respond to the September 5,2014 letter.

18.

On or about September 22, 2014, counsel for Artis sent an email to Defendant's

counsel requesting a response to the September 5, 2014 letter. Counsel for Defendant did not

respond to the September 22,2014 email. As of the date of this Complaint, no substantive
response has been received from Defendant or its counsel.

19.

In view of the foregoing, and among other reasons, Defendant's infringing

conduct has been and continues to be willful.

COUNT I
(Infringement of U.S. Patent No. D699.041)

20.

21.

Plaintiff repeats and re-alleges Paragraphs 1-19 hereof as if fully set forth herein.

Defendant has infringed and continues to infringe the '041 Patent by making,

using, selling and/or offering for sell in the United States, or importing into the United States,

including in this judicial district, one or more Infringing Brushes identified in this Complaint,
which embody the design claimed in the '041 Patent in violation of 35 U.S.C. 271(a).
22.

Defendant's infringement has been, and continues to be knowing, intentional,

and willful.

4
LEGAL\21648748\1

23.

Defendant's acts of infringement of the '041 Patent have caused and will

continue to cause Artis damages for which Artis is entitled to compensation pursuant to 35
U.S.C. 284.

24.

Defendant's acts of infringement of the '041 Patent have caused and will

continue to cause Artis immediate and irreparable harm unless such infringing activities are
enjoined by this Court pursuant to 35 U.S.C. 283. Artis has no adequate remedy at law.
25.

This case is exceptional and, therefore, Artis is entitled to an award of attorneys'

fees pursuant to 35 U.S.C. 285.

PRAYER FOR RELIEF

WHEREFORE, Artis requests judgment against Defendant as follows:

A.

Adjudging that Defendant has infringed the '041 Patent, in violation of 35

U.S.C. 271(a);

B.

Preliminarily and permanently enjoining Defendant, its employees, agents,

officers, directors, attorneys, successors, affiliates, subsidiaries and assigns, and all of those in
active concert and participation with any of the foregoing persons or entities from infringing,
contributing to the infringement of, or inducing infringement of the '041 Patent;
C.

Ordering Defendant to account and pay damages adequate to compensate Artis

for Defendant's infringement of the '041 Patent, with pre-judgment and post-judgment interest
and costs, pursuant to 35 U.S.C. 284;

D.

Ordering that the damages award be increased up to three times the actual

amount assessed, pursuant to 35 U.S.C. 284;

E.

Declaring this case exceptional and awarding Artis its reasonable attorneys'

fees, pursuant to 35 U.S.C. 285; and

F.

Awarding such other and further relief as this Court deems just and proper.
5

LEGAL\21648748\1

DEMAND FOR JURY TRIAL

Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Artis demands a trial by jury
on all issues so triable.

Dated: December 8, 2014

David Sunshine (DS 0973)

COZEN O'CONNOR
277 Park Avenue

New York, NY 10172

(212) 883-4900

dsunshine@cozen.com
Attorneysfor PlaintiffArtis LLC

LEGAL\21648748\1

EXHIBIT A

Illllllilllll
US00D699041S

(12) United States Design Patent (io> Patent no.:

Waitesmith

US D699,041 S

(45) Date of Patent:

(54)

COSMETIC BRUSH

(76)

Inventor:

5,476,334
5,511,276
D373,250
D387,203
5,842,488

Matthew Waitesmith, Jersey City, NJ

(US)

A
A
S
S
A

Term:

(21)

Appl. No.: 29/425,384

(22)

Filed:

Feb. 11,2014

Tello-Vallarino
Lee
Cavazza
Matharu
Belleauetal.

D4/104
D4/104

(Continued)

14 Years

(**)

12/1995
4/1996
9/1996
12/1997
12/1998

**

FOREIGN PATENT DOCUMENTS

CN

Jun. 22, 2012

201453625 U

5/2010

OTHER PUBLICATIONS

Related U.S. Application Data

(63) Continuation of application No. 12/425,182, filed on

Apr. 16, 2009, now abandoned.
(51)
(52)
(58)

LOC(10)C1
04-02
U.S. CI.
USPC
D4/138; D4/104; D4/134
Field of Classification Search

USPC

D4/104-112, 132, 134, 136, 138;

15/143.1, 159.1, 160, 186-188, 167.1,
15/167.2, 167.3; D28/7, 20; 16/430, 431;
132/216,218,313,317,320

See application file for complete search history.

(56)

GB 2051937 Registered Design Application, (La Brosse et Dupont

SA) Mar. 18, 1996, [online], [retrieved on Nov. 21, 2012] Retrieved

from the Design Databaseof the Intellectual PropertyOfficeof the

United Kingdom using the Internet: <URL: http://www.ipo.gov.
uk>.*

(Continued)

Primary Examiner Melanie H Tung

Assistant Examiner Lavone D Tabor

(74) Attorney, Agent, or Firm Jason L. Gilbert

(57)

References Cited

described.

U.S. PATENT DOCUMENTS

1,193,287
1,647,453
1,657,450
D165,862
2,706,825
3,065,480
D243,422
4,165,755
D255,511
4,227,276
4,330,896
4,598,437
D336,991
D346,902

A *
8/1916
A
11/1927 Krantz
A
1/1928 Barnes
S *
2/1952
A
4/1955 Blakeman
A
11/1962 Sexton
S *
2/1977
A
8/1979 Cassai
S
6/1980 Hilletal.
A
10/1980 Ginsburg
A
5/1982 Booth
A
7/1986 Ernest et al.
S
7/1993 Makinami
S
5/1994 Makinami

D357J23 S

4/1995

CLAIM

The ornamental design for a cosmetic brush, as shown and

DESCRIPTION
15/188

FIG. 1 is a top perspectiveview of a cosmetic brush showing

my new design.
D4/134

FIG. 2 is a top view of a cosmetic brush showing my new

design; and,

D4/104

FIG. 3 is a first side view of a cosmetic brush showingmy new

design.

The ornamental design which is claimed is shown in solid

linesin the drawings. Thebrokenlinesin the drawings are for

illustrative purposes only and form no part of the claimed
design.
D4/104

1 Claim, 3 Drawing Sheets

US D699,041 S
Page 2
(56)

5,881,421
6,039,051
6,050,273
6,108,847
6,234,798
6,687,940
6,779,532
7,182,542
D589,258
7,823,593

References Cited

OTHER PUBLICATIONS

U.S. PATENT DOCUMENTS

KR 300022366 Registered Design Bibliography, May 15, 1978,

A
3/1999
A
3/2000
A
4/2000
A * 8/2000
Bl
5/2001
Bl
2/2004
B2
8/2004
B2
2/2007
S *
3/2009
B2
11/2010

2005/0188486 Al
2007/0143942 Al*

Ducharme
Dorf
Lhuisset
Cueman et al
Bealsetal.
Gross etal.
Dorf
Hohlbein
Littmannetal
Gueret

9/2005 Tubman
6/2007 Fox et al

[online], [retrieved on Nov. 15, 2012] Retrieved from the Design

Database of the Korean Intellectual Property Rights Information
15/104.94

Service using Internet: <URL: http//eng.kipris.or.kr>.*

CN 301434919 Registered Design, (Qin, Bingxian) Jan. 12, 2011,
[online], [retrieved on Jan. 13, 2013] Retrieved from the Questel
Intellectual Property Portal Design Database using the Internet:

D4/104

15/143.1

<URL: http://www.orbit.com>.*

* cited by examiner

U.S. Patent

Feb. ll, 2014

Sheet 1of3

US D699,041 S

FIG. 1

U.S. Patent

Feb. ll, 2014

Sheet 2of3

US D699,041 S

FIG. 2

U.S. Patent

Feb. ll, 2014

Sheet 3 of3

US D699,041 S

FIG. 3

United States Patent and Trademark Office

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Assignments on the Web > Patent Query

Patent Assignment Abstract of Title

NOTE:Results display only for issued patents and published applications. For
pending or abandoned applications please consult USPTO staff.

Total Assignments: 1
Patent #: D699041

issue Dt: 02/11/2014

Application #: 29425384

Filing Dt: 06/22/2012

Inventor: Matthew Waitesmith

Title: COSMETIC BRUSH

Assignment: 1
Reel/Frame: 032487/0917

Recorded: 03/20/2014

Pages: 2

Conveyance: ASSIGNMENT OF ASSIGNORS INTEREST (SEE DOCUMENT FOR DETAILS).

Assignor: WAlTESMrTH. MATTHEW

Exec Dt: 03/20/2014

Assignee: ARTIS LLC

299 PAVONIA AVENUE, SUITE 2-5
JERSEY CITY, NEW JERSEY 07302

Correspondent: NEUSTEL LAW OFFICES, LTD.

2534 SOUTH UNIVERSITY DRIVE
SUITE 4

FARGO, ND 58103

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