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Case 1:16-cv-01846 Document 1 Filed 07/19/16 USDC Colorado Page 1 of 9

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLORADO
Civil Action No.: 1:16-cv-1846

CROCS, INC., a Delaware corporation,


Plaintiff,
v.
TOYS R US, INC., a Delaware corporation,
Defendant.

COMPLAINT AND JURY DEMAND

Plaintiff Crocs, Inc., for its Complaint against Defendant Toys R Us, Inc., states as
follows:
PARTIES, JURISDICTION, AND VENUE
1.

Plaintiff Crocs, Inc. (Crocs) is a Delaware corporation having its principal place

of business at 7477 East Dry Creek Parkway, Niwot, Colorado 80503.


2.

Defendant Toys R Us, Inc. (TRU) is a Delaware corporation having its

principal place of business at One Geoffrey Way, Wayne, New Jersey, 07470.
3.

The Court has subject matter jurisdiction over this case pursuant to 28 U.S.C.

1331 and 1338(a). This case presents well-pleaded federal questions arising under the Patent Act,
35 U.S.C. 1, et seq.
4.

The exercise of in personam jurisdiction over TRU comports with the laws of the

State of Colorado and the constitutional requirements of due process because TRU and/or its
agents transact business and/or offer to transact business within Colorado.

Case 1:16-cv-01846 Document 1 Filed 07/19/16 USDC Colorado Page 2 of 9

5.

Specifically, TRU offers for sale, sells, and/or distributes toys and juvenile

products at its eleven retail locations within the State of Colorado. Additionally, TRU, through its
websites http://www.toysrus.com and http://www.babiesrus.com, offers for sale, sells, and/or
distributes toys and juvenile products throughout the United States, including within the State of
Colorado.
6.

Venue is proper in this District pursuant to 28 U.S.C. 1391(b) and (c) and 28

U.S.C. 1400(b) because TRU resides in and has regular and established places of business in the
State of Colorado.
GENERAL ALLEGATIONS
CROCS, INC.
7.

Crocs is a widely recognized designer, manufacturer, and marketer of

Crocs-branded footwear for men, women, and children, which incorporate Crocs proprietary
closed-cell resin material, Croslitea substantial innovation in footwear comfort and
functionality. This proprietary material enables Crocs to produce soft and lightweight,
non-marking, slip, and odor resistant shoes, which are ideal for casual wear and recreational uses
such as boating, hiking, fishing, and gardening. Currently, Crocs offers a substantial number of
models in a wide variety of colors. Crocs is constantly growing the number of new styles offered.
8.

Crocs footwear is sold through a wide range of distribution channels, including

department stores, specialty footwear stores, sporting good, and outdoor retailers. Crocs brand
footwear is also sold through a variety of specialty channels, including gift shops, uniform
suppliers, independent bicycle dealers, specialty food retailers, and health and beauty stores. In
addition, Crocs sells its footwear through its websites, including but not limited to,
www.crocs.com, and in kiosks in shopping malls throughout the country.

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Case 1:16-cv-01846 Document 1 Filed 07/19/16 USDC Colorado Page 3 of 9

9.

At least as early as 2003, Crocs had launched the marketing and distribution of its

original clog style footwear in the United States. The unique characteristics of Croslite material
enabled Crocs to offer consumers a shoe unlike any other footwear model then available. Since the
initial introduction and popularity of Crocs Beach and Classic designs, Crocs has expanded its
Croslite products to include a variety of new styles and products.
10.

In November 2009, Crocs launched a new molded footwear design, the Crocband

model footwear. The Crocband model footwear combines the iconic look of Crocs molded
footwear with a sporty midsole band evoking the retro sneaker style, as depicted in the following
example.

11.

The Crocband model footwear has been an enormous worldwide success. The

Crocband footwear line have quickly become some of Crocs best-selling products. The
distinctive visual design of the Crocband model footwear is protected by U.S. Patent No.
D610,784, discussed below.
CROCS INTELLECTUAL PROPERTY
THE 858 PATENT
12.

On February 7, 2006, the U.S. Patent and Trademark Office issued U.S. Patent No.

6,993,858 (the 858 Patent), titled Breathable Footwear Pieces, with Crocs as the assignee. A
true and correct copy of the 858 Patent is attached hereto as Exhibit A.

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13.

The 858 Patent contains two independent claims. Claim 1 recites a footwear piece

comprising a base section that is formed as a single part manufactured from a moldable foam
material; a pivoting strap section formed of moldable foam material that is attached to opposite
ends of the upper base section and is held in place by frictional forces at the contact points; an open
rear region; and an upper region that forms a toe region which follows the contour of a human foot.
Claim 2 additionally claims a decorative pattern of bumps in the upper opening perimeter; a
plurality of ventilators in the substantially vertical and horizontal portions; and a sole that includes
tread patterns and a foot base including a raised pattern.
THE 784 PATENT
14.

Crocs is the owner of U.S. Patent No. D610,784 (the 784 Patent), titled

Footwear, which was duly and legally issued by the U.S. Patent and Trademark Office on March
2, 2010. A true and correct copy of the 784 Patent is attached hereto as Exhibit B.
15.

The 784 Patent claims an ornamental design for footwear as shown and described

in the following figures:

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Case 1:16-cv-01846 Document 1 Filed 07/19/16 USDC Colorado Page 5 of 9

TRUS INFRINGING ACTS


16.

On information and belief, TRU offers for sale, sells, distributes, and/or imports

foam clog footwear under the Koala Kids trade name, which infringes Crocs intellectual
property rights, including the 858 Patent and 784 Patent. For example, on June 10, 2016, the
infringing Koala Kids Eva Clog shoeSKN #498084-040880, UPC #400001474914was
available for purchase on the TRU website. As another example, on May 19, 2016, the infringing
Koala Kids Eva Clog shoeSKN #498262-010880, UPC #400001474969was available for
purchase on the TRU website. Exemplary photos of the infringing Koala Kids Eva Clog shoe are
attached hereto as Exhibit C and depicted below.

17.

TRUs offering for sale, sale, distribution, and/or importing of the Koala Kids Eva

Clog foam footwear productsincluding but not limited to the products with SKN and UPC
numbers SKN #498262-010880, UPC #400001474969 and SKN #498084-040880, UPC

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Case 1:16-cv-01846 Document 1 Filed 07/19/16 USDC Colorado Page 6 of 9

#400001474914infringe the 858 and 784 Patents, resulting in irreparable harm to Crocs for
which Crocs has no adequate remedy at law.
FIRST CLAIM FOR RELIEF
Infringement of the 858 Patent 35 U.S.C. 1, et seq.
18.

Crocs hereby incorporates each of the preceding paragraphs as if fully set forth

19.

TRU has infringed and is infringing at least claim 1 of the 858 Patent in violation

herein.

of 35 U.S.C. 271(a) by offering to sell, selling, distributing, and/or importing foam clog footwear
within the United States, including but not limited to the Koala Kids Eva Clog foam footwear
products sold with SKN and UPC numbers SKN #498262-010880, UPC #400001474969 and
SKN #498084-040880, UPC #400001474914.
20.

Attached as Exhibit D are letters dated June 22, 2016 and October 1, 2012 in which

Crocs notified TRU of the 858 Patent and the infringing Koala Kids Eva Clog shoes. As shown in
the attached Exhibit E, TRU is still offering for sale the infringing Koala Kids Eva Clog shoes on
its website. TRU knew of the 858 Patent by no later than October 1, 2012 and is therefore
willfully infringing the 858 Patent.
21.

As a result of TRUs infringement of Crocs rights in the 858 Patent, Crocs has

suffered and will continue to suffer damages.


22.

TRUs willful infringement of Crocs rights in the 858 Patent warrants an award of

treble damages under 35 U.S.C. 284 and makes this an exceptional case warranting an award of
Crocs reasonable attorneys fees and costs under 35 U.S.C. 285.
23.

As a result of TRUs continuing infringement of Crocs rights in the 858 Patent,

Crocs is suffering irreparable harm, and will continue to suffer irreparable harm unless TRU is
enjoined from further infringement of the 858 Patent.
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24.

Crocs has marked its products to provide notice to the public of the 858 Patent,

where applicable, in compliance with 35 U.S.C. 287.


SECOND CLAIM FOR RELIEF
Infringement of the 784 Patent 35 U.S.C. 1, et seq.
25.

Crocs hereby incorporates each of the preceding paragraphs as if fully set forth

26.

TRU has offered for sale, sold, distributed, and/or imported, and continues to offer

herein.

to sell, sell, distribute, and/or import foam clog footwear, including but not limited to the Koala
Kids Eva Clog foam footwear products sold with SKN and UPC numbers SKN #498262-010880,
UPC #400001474969 and SKN #498084-040880, UPC #400001474914 that infringe Crocs
rights in the 784 Patent.
27.

As a result of TRUs infringement of Crocs rights in the 784 Patent, Crocs has

suffered and will continue to suffer damages in an amount to be proved at trial. In addition to
actual damages, Crocs is entitled to recovery of TRUs profits pursuant to 35 U.S.C. 289.
28.

Attached as Exhibit D are letters dated June 22, 2016 and October 1, 2012 in which

Crocs notified TRU of the 784 Patent and the infringing Koala Kids Eva Clog shoes. As shown in
the attached Exhibit E, TRU is still offering for sale the infringing Koala Kids Eva Clog shoes on
its website. TRU knew of the 784 Patent by no later than October 1, 2012 and is therefore
willfully infringing the 784 Patent.
29.

TRUs willful infringement of Crocs rights in the 784 Patent warrants an award of

treble damages under 35 U.S.C. 284 and makes this an exceptional case warranting an award of
Crocs reasonable attorneys fees and costs under 35 U.S.C. 285.

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30.

TRUs infringement of the 784 Patent has caused irreparable harm to Crocs, and

will continue to do so unless enjoined. As a result, Crocs is entitled to injunctive relief pursuant to
35 U.S.C. 283.
31.

Crocs has marked its products to provide notice to the public of the 784 Patent,

where applicable, in compliance with 35 U.S.C. 287.


PRAYER FOR RELIEF
WHEREFORE, Crocs prays for the following relief:
A.

A preliminary and permanent injunction restraining Toys R Us, its officers,

agents, servants, employees, attorneys, and those persons acting in concert with Toys R Us, from
making, displaying, using, offering to sell, selling, distributing, and/or importing foam clog
footwear, including but not limited to the Koala Kids Eva Clog foam footwear products, sold with
SKN and UPC numbers SKN #498262-010880, UPC #400001474969 and SKN #498084-040880,
UPC #400001474914, that infringe Crocs rights in the 858 and/or 784 Patents;
B.

An order that Toys R Us be required at the conclusion of this proceeding to

destroy any and all remaining footwear in its possession that the Court finds to violate Crocs
rights;
C.

An award of actual damages in an amount according to proof;

D.

An award of any and all profits received or derived by Toys R Us from the

manufacture, marketing, sale, offering for sale and/or distribution of products or services bearing
or using any copy or colorable imitation of the 784 Patent pursuant to 35 U.S.C. 289 and other
applicable federal law;
E.

Exemplary damages in the amount up to three times actual damages as provided for

Toys R Us willful and reckless actions in violation of Crocs intellectual property rights
pursuant to 35 U.S.C. 284;
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F.

An award of attorneys fees and costs pursuant to federal and/or state law; and

G.

Such further equitable and legal relief and damages as this Court deems just and

proper.
JURY DEMAND
Plaintiff hereby demands a trial by jury on all issues so triable.
Respectfully submitted this 19th day of July, 2016.

s/ Natalie Hanlon Leh


Natalie Hanlon Leh
Michael J. Silhasek
Wilmer Cutler Pickering Hale and Dorr LLP
1225 17th Street, Suite 2600
Denver, Colorado 80202
Phone: 720-274-3135
Fax: 720-274-3133
Natalie.HanlonLeh@wilmerhale.com
Michael.Silhasek@wilmerhale.com
Counsel for Plaintiff Crocs, Inc.
Plaintiffs Address:
7477 East Dry Creek Parkway
Niwot, Colorado 80503

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