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Liza M. Walsh
Hector D. Ruiz
Katelyn OReilly
WALSH PIZZI OREILLY FALANGA LLP
One Riverfront Plaza
1037 Raymond Blvd., Suite 600
Newark, New Jersey 07102
Tel.: (973) 757-1100
Fax: (973) 757-1090
Tonia A. Sayour
COOPER & DUNHAM LLP
30 Rockefeller Plaza
New York, New York 10112
Tel.: (212) 278-0400
Fax: (212) 391-0525
COMPLAINT
for their Complaint against Defendant Everstar Merchandise Co., Ltd. (Everstar), allege as
follows:
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THE PARTIES
1. Telebrands Corp. is a corporation organized and existing under the laws of the State
of New Jersey, having a place of business at 79 Two Bridges Road, Fairfield, New Jersey 07004.
2. Prometheus is limited liability company, organized and existing under the laws of
the State of Delaware, having a place of business at 79 Two Bridges Road, Fairfield, New Jersey
07004.
existing under the laws of Taiwan, Republic of China, having a principal place of business at 7F,
No. 285, Chung Hsiao E. Rd. Sec. 4, Taipei City, Taiwan 10692. On information and belief,
Everstar does business with retailers throughout the United States, including the State of New
Jersey.
4. This action arises under the Patent Laws of the United States (35 U.S.C. 1 et seq.).
6. Venue is proper within this Judicial District under 28 U.S.C. 1391(b) and (c)
and 1400(b).
BACKGROUND
7. Telebrands is a direct marketing company and, since 1983, has been engaged in the
business of marketing and selling a wide variety of consumer products in this Judicial District and
elsewhere, principally through direct response advertising and through national retail stores.
Telebrands is one of the recognized leaders in the direct response television marketing industry.
which it markets and sells under the trademark STAR SHOWER. Telebrands introduced the
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original STAR SHOWER product for the 2015-2016 holiday season, and it was an instant success.
In view of the original STAR SHOWER products success, Telebrands subsequently introduced
the STAR SHOWER MOTION product and the STAR SHOWER PATRIOT products. STAR
SHOWER PATRIOT expanded on the original STAR SHOWER by introducing new colored
lights, and STAR SHOWER MOTION introduced the ability to move the points of light in
patterns.
alternative to setting up string lights as decorative lighting for a house or other building. A user
can simply plug the STAR SHOWER product into an outlet, and the product produces thousands
of discrete points of lights, thereby allowing the user to avoid the danger, hassles, and the time of
10. Telebrands has invested significant resources in the sale and marketing of the
STAR SHOWER line of products. Since its introduction, the STAR SHOWER line of products
has been successful. During the 2015-2016 holiday season, Telebrands sold several million units
of the product. In view of the success of the STAR SHOWER line of products, knock-off and
11. The STAR SHOWER product includes many unique and innovative features. For
example, the STAR SHOWER product is covered by U.S. Patent No. 9,546,775 (the 775
Patent), entitled Decorative Lighting Apparatus Having Two Laser Light Sources, which was
duly and legally issued on January 17, 2017. Telebrands is the assignee and the owner of all right,
title, and interest in and to the 775 Patent. A true and correct copy of the 775 Patent is attached
12. The 775 Patent generally relates to a decorative lighting apparatus. Representative
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13. The STAR SHOWER product is also covered by U.S. Patent No. 9,562,673 (the
673 Patent), entitled Decorative Lighting Apparatus Having An Attenuation Assembly, which
was duly and legally issued on February 7, 2017. Telebrands is the assignee and the owner of all
right, title, and interest in and to the 673 Patent. A true and correct copy of the 673 Patent is
14. The 673 Patent generally relates to a decorative lighting apparatus. Representative
15. Prometheus is the owner of, and Telebrands is the exclusive licensee under, U.S.
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Trademark Registration No. 4,833,721 for the mark STAR SHOWER for a laser light projector.
A copy of the registration certificate is attached hereto as Exhibit C. The trademark registration is
16. The STAR SHOWER trademark was adopted to indicate the source of the STAR
SHOWER Products. The mark is non-functional, fanciful, inherently distinctive and well-
recognized as and represents the source of Telebrands product sold in association therewith and
a substantial goodwill of Telebrands throughout the United States, including the State of New
Jersey.
17. Since at least as early as June 18, 2015, Telebrands has continuously used the name
STAR SHOWER in interstate commerce in connection with the sale, distribution, promotion and
18. The STAR SHOWER trademark has achieved widespread recognition among the
relevant purchasing public and the trade and has acquired secondary meaning.
19. Telebrands advertising and promotion highlights the STAR SHOWER trademark.
20. The STAR SHOWER trademark and the goodwill associated therewith is a
21. As a result of its long and substantially exclusive use, substantial sales and
extensive advertising and promotional activities in connection with Telebrands STAR SHOWER
Products, the STAR SHOWER trademark has become well-known and widely recognized as
22. The arbitrary and distinctive mark STAR SHOWER identifies Telebrands as the
source or origin of goods bearing, sold under, distributed and advertised in association with the
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23. On information and belief, without Telebrands authorization, Everstar has made,
used, sold, offered for sale, and/or imported into the United States and continues to make, use, sell,
offer for sale, and/or import into the United States infringing decorative lighting products under
the mark STAR LASER (the Infringing Product) throughout the United States and within this
Judicial District.
24. The Infringing Product infringes at least one claim of the 775 Patent and the 673
Patent.
25. Everstars Infringing Product infringes at least claims 1, 5, and 15 of the 775
Patent. For example, Everstars Infringing Product includes, inter alia, first and second laser light
sources and a motion assembly. The motion assembly includes an articulating element configured
to secure an optical element in the path of the light generated by the first and second laser light
sources and a motor coupled to the articulating element such that a movement generated by the
motor drives the optical element such that the movement driving the articulating element by the
motor causes the light to move across a surface onto which the light is being projected in a
predetermined pattern.
26. In addition to the features described above, Everstars Infringing Product also
includes a switch including a first setting corresponding to the first and second light sources being
in an off condition and a second setting corresponding to the first and second light sources being
in an on condition. Further, the motion assembly includes a motor coupled to the articulating
element such that a movement generated by the motor is imparted to the optical element so that
the light passing through the optical element is articulated as it is projected onto a surface.
Everstars Infringing Product also includes an attenuation assembly including an attenuator and a
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first member coupled to a second member, the first and second members forming a recess designed
and dimensioned to hold the attenuator in the path of the light generated by the first and second
laser light sources, such that the attenuator scatters the light passing through the attenuators as it
27. Everstars Infringing Product also infringes at least claims 1 and 9 of the 673
Patent. For example, Everstars Infringing Product includes, inter alia, a light source, an
housing, and a first base configured to be coupled to a second base. The first housing is coupled
to the second housing to form a recess designed and dimensioned to receive and hold the attenuator
in a substantially fixed position, and the first base is coupled to the second base to form a further
recess designed and dimensioned to receive and hold the coupled first housing and second housing
28. Everstars Infringing Product directly competes with Telebrands STAR SHOWER
line of products. On information and belief, Everstars Infringing Product has been sold and is
currently being sold by at least one major retailer in stores throughout the United States, and on
the Internet.
29. On information and belief, Everstars adoption of the inventions claimed in the 775
Patent and the 673 Patent is deliberate and intentional and with full knowledge of Telebrands
rights.
30. Everstars mark STAR LASER is a copy, counterfeit or colorable imitation of the
STAR SHOWER Trademark. On information and belief, Everstars use of the mark STAR
31. Everstars use of the mark STAR LASER was and is without Telebrands
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32. By adopting and using the mark STAR LASER, and by trading on Telebrands
valuable goodwill, Everstar has caused and is likely to cause confusion, mistake and deception of
purchasers and potential purchasers as to the source or origin of Everstars Infringing Product and
33. Everstars acts as recited herein have been undertaken in bad faith so as to compete
34. Everstars actions have damaged and are likely to damage the reputation and
goodwill of Telebrands.
35. Plaintiffs repeat and reallege the allegations set forth in paragraphs 1-34 above, as
36. This cause of action arises under Section 35 of the Patent Laws of the United States,
35 U.S.C. 271.
38. By the acts alleged above, Everstar has committed acts of infringement of the 775
Patent, and continues to commit such acts of infringement, by making, using, selling, offering for
sale, and/or importing into the United States, products that infringe, directly or indirectly, one or
39. On information and belief, Everstar has contributed to the infringement of the 775
Patent and/or actively induced others to infringe the 775 Patent by encouraging, marketing, and
promoting the use, manufacture, importation, offer for sale, and sale of the Infringing Product.
40. Everstar has been put on notice of the 775 Patent at least as early as the filing of
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41. As a direct and proximate cause of Everstars direct and/or indirect infringement,
as alleged above, Plaintiff has suffered damages. Everstar is liable to Plaintiff for the amount of
42. Everstar will, on information and belief, continue to infringe upon Telebrands
rights under 271 of the Patent Act, unless and until it is enjoined by this Court. Telebrands has
been and is likely to continue to be irreparably injured unless Everstar is enjoined. Telebrands has
43. Plaintiffs repeat and reallege the allegations set forth in paragraphs 1-42 above, as
44. This cause of action arises under Section 35 of the Patent Laws of the United States,
35 U.S.C. 271.
46. By the acts alleged above, Everstar has committed acts of infringement of the 673
Patent, and continues to commit such acts of infringement, by making, using, selling, offering for
sale, and/or importing into the United States, products that infringe, directly or indirectly, one or
47. On information and belief, Everstar has contributed to the infringement of the 673
Patent and/or actively induced others to infringe the 673 Patent by encouraging, marketing, and
promoting the use, manufacture, importation, offer for sale, and sale of the Infringing Product.
48. Everstar has been put on notice of the 673 Patent at least as early as the filing of
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49. As a direct and proximate cause of Everstars direct and/or indirect infringement,
as alleged above, Plaintiff has suffered damages. Everstar is liable to Plaintiff for the amount of
50. Everstar will, on information and belief, continue to infringe upon Telebrands
rights under 271 of the Patent Act, unless and until it is enjoined by this Court. Telebrands has
been and is likely to continue to be irreparably injured unless Everstar is enjoined. Telebrands has
51. Plaintiffs repeat and reallege the allegations set forth in paragraphs 1-50 above, as
52. This cause of action for trademark infringement arises under Section 32 of the
Lanham Act, 15 U.S.C. 1114, and is for infringement of a trademark registered by Prometheus
in the United States Patent and Trademark Office as U.S. Registration No. 4,833,721, and
53. The unauthorized use of Plaintiffs federally registered trademark is likely to cause
confusion, mistake or deception in that actual and potential customers are likely to believe that
Everstars goods are provided by, sponsored by, approved by, licensed by, affiliated or associated
with, or emanate from Plaintiffs, and Everstars acts constitute trademark infringement.
54. Everstar will continue its infringing acts unless enjoined by this Court. Plaintiffs have
55. Plaintiffs repeat and reallege the allegations set forth in paragraphs 1-54 above as
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56. This cause of action arises under Section 43(a) of the Lanham Act, 15 U.S.C.
1125(a).
57. On information and belief, Everstar knowingly adopted and used the mark STAR
58. Everstars unauthorized importation, use, distribution, offer for sale, advertising
and/or sale of goods bearing the mark STAR LASER constitutes a false designation of origin that
therefore constitutes unfair competition in violation of Section 43(a) of the Lanham Act, 15 U.S.C.
1125(a).
59. Everstars unauthorized importation, use, distribution, offer for sale, advertising
and/or sale of goods bearing the mark STAR LASER constitutes a false representation that is likely
to cause confusion, mistake or deceive the consuming public as to the affiliation and/or connection
of Everstars products as originating from or being sponsored by Plaintiffs when, in fact, they are
not.
60. Plaintiffs have been and are being damaged by such acts, and damage will continue
unless Everstars acts are enjoined by this Court. Plaintiffs have no adequate remedy at law.
61. Plaintiffs repeat and reallege the allegations set forth in paragraphs 1-60 above as
62. This cause of action arises under New Jersey common law.
63. Everstar, by its acts, has unfairly competed with Plaintiffs and has infringed
Plaintiffs common law rights in the STAR SHOWER Trademark in violation of the common law
of the State of New Jersey. As a result of Everstars acts, purchasers are likely to be confused,
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by Plaintiffs.
64. Plaintiffs have been and are being damaged by such acts, and damage will continue
unless Everstars acts are enjoined by this Court. Plaintiffs have no adequate remedy at law.
65. Plaintiffs repeat and reallege the allegations set forth in paragraphs 1-64 above as
of the STAR SHOWER Trademark is likely to cause confusion, mistake or deception of purchasers
Plaintiffs.
68. By using such copy of the STAR SHOWER Trademark, Everstar has falsely and
misleadingly described and suggested that the products that it is selling and offering for sale
69. The foregoing acts of Everstar constitute unfair competition in violation of N.J.S.A.
56:4-1.
70. Everstars statutory violations and other wrongful acts have injured and threaten to
71. Plaintiffs have been and are being damaged by such acts and damage will continue
unless Everstars acts are enjoined. Plaintiffs have no adequate remedy at law.
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infringed and/or induced infringement of the 775 Patent and the 673 Patent;
c) Adjudging and decreeing that Everstar has infringed the trademark STAR
officers, agents, servants, employees and attorneys and all those in active concert or participation
1. from infringing the 775 Patent and the 673 Patent; and
sell a decorative lighting product bearing the mark STAR LASER, the
of unfair competition.
e) Requiring Everstar to pay Telebrands any damages Telebrands has suffered arising
out of and/or as a result of Everstars patent infringement, including Telebrands lost profits,
Everstars profits, and/or reasonable royalties for Everstars patent infringement, and any other
nature of this case, pursuant to 35 U.S.C. 285, 15 U.S.C. 1117(a) and/or N.J.S.A. 56:4-1 et seq.
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g) Ordering an accounting by Everstar to Plaintiffs of any profits gained from the sale
of goods bearing a colorable imitation of the mark STAR SHOWER under 15 U.S.C. 1117;
Plaintiffs as a result of its acts, and Plaintiffs costs for the action, pursuant to 15 U.S.C. 1117(a)
and/or N.J.S.A. 56:4-1 et seq. and/or any other damages recoverable under any other statute or law
profits, whichever is greater, pursuant to 15 U.S.C. 1117(a) and/or N.J.S.A. 56:4-1 et seq. and/or
k) Granting such other and further relief as this Court deems just and proper.
JURY DEMAND
Respectfully submitted,
Dated: April 26, 2017
By: s/ Liza M. Walsh
Liza M. Walsh
Hector D. Ruiz
Katelyn OReilly
WALSH PIZZI OREILLY FALANGA LLP
One Riverfront Plaza
1037 Raymond Blvd., Suite 600
Newark, New Jersey 07102
Tel.: (973) 757-1100
Fax: (973) 757-1090
Tonia A. Sayour
COOPER & DUNHAM LLP
30 Rockefeller Plaza
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I hereby certify that, to the best of my knowledge, the matter in controversy is not the
subject of any other pending or anticipated litigation in any court or arbitration proceeding, nor are
there any non-parties known to Telebrands that should be joined to this action. In addition, I
recognize a continuing obligation during the course of this litigation to file and to serve on all other
parties and with the Court an amended certification if there is a change in the facts stated in this
original certification.
Respectfully submitted,
Dated: April 26, 2017
By: s/ Liza M. Walsh
Liza M. Walsh
Hector D. Ruiz
Katelyn OReilly
WALSH PIZZI OREILLY FALANGA LLP
One Riverfront Plaza
1037 Raymond Blvd., Suite 600
Newark, New Jersey 07102
Tel.: (973) 757-1100
Fax: (973) 757-1090
Tonia A. Sayour
COOPER & DUNHAM LLP
30 Rockefeller Plaza
New York, New York 10112
Tel.: (212) 278-0400
Fax: (212) 391-0525
tsayour@cooperdunham.com
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Pursuant to Local Civil Rule 201.1, Telebrands, through its attorneys, certifies that the
Respectfully submitted,
Dated: April 26, 2017
By: s/Liza M. Walsh
Liza M. Walsh
Hector D. Ruiz
Katelyn OReilly
WALSH PIZZI OREILLY FALANGA LLP
One Riverfront Plaza
1037 Raymond Blvd., Suite 600
Newark, New Jersey 07102
Tel.: (973) 757-1100
Fax: (973) 757-1090
Tonia A. Sayour
COOPER & DUNHAM LLP
30 Rockefeller Plaza
New York, New York 10112
Tel.: (212) 278-0400
Fax: (212) 391-0525
tsayour@cooperdunham.com
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EXHIBIT A
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EXHIBIT B
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EXHIBIT C
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JS 44 (Rev. 12/12)
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CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
(b) County of Residence of First Listed Plaintiff Essex County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Liza M. Walsh - Walsh Pizzi O'Reilly Falanga LLP
One Riverfront Plaza, 1037 Raymond Blvd., Suite 600
Newark, NJ 07102 - (973) 757-1100
II. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
1 U.S. Government 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4
of Business In This State
2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State