Case 1:17-cv-04046 Document 1 Filed 05/30/17 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

- - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - x
:
Colors in Optics, Ltd., :
:
Plaintiff, : Civ. Action No. 17-cv-4046
:
v. :
:
Oakley, Inc., :
Defendant. :
:
-------------------------------x

COMPLAINT

Plaintiff Colors in Optics, Ltd. (CIO or Plaintiff), by and through counsel, for its

Complaint against Defendant Oakley, Inc. (Oakley or Defendant), hereby alleges as follows:

BACKGROUND

1. This case concerns claims of intellectual property infringement asserted by Oakley

against CIO and its customer, a major retailer (Customer) regarding two designs for sport

sunglasses, designated Style 403XR and Style 436XR. Oakley has alleged that Style 403XR and

Style 436XR infringe Oakleys U.S. Patents No. D705,339 and D564,571, respectively. Oakley

has asserted the same patents against others, joined with non-patent claims. CIO seeks declaratory

judgments, as stated more particularly herein, that CIO and Customer have not infringed any patent

or non-patent rights of Oakley by their activities with respect to Style 403XR and Style 436XR.

THE PARTIES

2. CIO is a New York corporation with its principal place of business at 366 Fifth

Avenue, New York, New York 10016. CIO designs, markets, and distributes eyewear including

sunglasses.
 Case 1:17-cv-04046 Document 1 Filed 05/30/17 Page 2 of 12

3. On information and belief, Oakley is a Washington corporation with places of

business in the State of New York, and in or near this judicial district, at 560 Fifth Avenue, New

York, New York 10036; 1515 Broadway, New York, New York 10036; 630 Old Country Road,

Garden City, New York 11530; and 484 Evergreen Court, Central Valley, New York 10917.

4. On information and belief, Oakley is a subsidiary of Luxottica U.S. Holdings

Corporation.

5. On information and belief, Luxottica U.S. Holdings Corporation is a Delaware

corporation registered to do business in the State of New York as a foreign business corporation

and has a place of business at 12 Harbor Park Drive, Port Washington, NY 11050.

JURISDICTION AND VENUE

6. This Complaint arises under the Patent Act, 35 U.S.C. 1, et seq. and the

Declaratory Judgment Act, 28 U.S.C. 2201, et seq. The Court has subject matter jurisdiction

pursuant to 28 U.S.C. 1331, 1338, and 2201.

7. This Court has personal jurisdiction over Oakley because the claims asserted herein

arose in this judicial district; because Oakley resides in the State of New York and in this district;

because Oakley transacts business within this district and has committed acts complained of

hereinafter within this district; because Oakley derives substantial revenue from interstate

commerce and has committed acts both within and without this district having injurious

consequences within this district; because, on information and belief, Oakley owns, uses or

possesses real property situated within the State of New York and within this district; and Oakley

is otherwise within the jurisdiction of this Court. On information and belief, Oakley has systematic

and continuous contacts with this judicial district and/or regularly conducts and solicits business

within this judicial district. Oakley has purposefully availed itself of this forum by, among other

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 Case 1:17-cv-04046 Document 1 Filed 05/30/17 Page 3 of 12

things, residing in and operating places of business in the State of New York including in this

judicial district; deriving revenue from such activities; offering for sale, selling, and/or advertising

products including sunglasses within the State of New York including in this judicial district; and

has otherwise purposefully availed itself of the privileges and benefits of the laws of the State of

New York.

8. Venue is proper in this Court pursuant to 28 U.S.C. 1391.

OAKLEYS ALLEGATIONS OF INFRINGEMENT

9. CIO supplied to Customer the Style 403XR and Style 436XR sunglasses at issue in

this case.

10. Customer resold Style 403XR to the public under the name Xersion Sunglasses

and/or Xersion Two-Tone Sport Sunglasses. Exhibit A hereto (incorporated herein by reference)

is a true and correct copy of a printout of a Customer webpage for the Style 403XR sunglasses.

11. Customer resold Style 436XR to the public under the name Xersion SemiRimless

Sport Sunglasses. Exhibit B hereto (incorporated herein by reference) is a true and correct copy

of a printout of a Customer webpage for the Style 436XR sunglasses.

12. On information and belief, Oakley is the owner of all right, title and interest in and

to U.S. Patent No. D564,571 (the D571 Patent, Exhibit C hereto (incorporated herein by

reference)) and U.S. Patent No. D705,339 (the D339 Patent, Exhibit D hereto (incorporated

herein by reference)).

13. On information and belief, in or about April 2017, a representative of Luxottica

and/or Oakley alleged to in-house counsel for Customer that the Style 403XR and Style 436XR

sunglasses infringed intellectual property rights of Oakley.

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 Case 1:17-cv-04046 Document 1 Filed 05/30/17 Page 4 of 12

14. On or about May 2, 2017, a Luxottica representative with the title Assistant General

Counsel, Litigation, sent an email to in-house counsel for CIO, based in New York, New York,

attaching a letter drafted by Oakleys outside counsel and addressed to the legal department of

Customer alleging infringement by the Style 403XR and Style 436XR sunglasses. Oakleys

outside counsel was cc:ed on the email from the Luxottica representative. A true and correct copy

of a printout of the email and letter is attached hereto as Exhibit E (incorporated herein by

reference). The Oakley letter was emailed in Microsoft Word format and contains an automatically

generated date, therefore the date printed in Exhibit E is the date of printing, not the date of the

letter.

15. The Oakley letter states as follows: As shown below, we have determined that the

design of [Customers] Xersion Semi-Rimless Sport Sunglasses (ID # 5375188) infringes the

D571 Patent, and that the design of [Customers] Xersion Two-Tone Sport Sunglasses (ID

# 5371312) infringes the D339 Patent.

16. The Oakley letter further states: We ask that you stop any further infringement of

Oakleys intellectual property rights, and that you provide Oakley with an accounting of

[Customers] sales for these two eyewear models. We ask that you provide this information and

confirm by May **, 2017, that you will fully comply with Oakleys requests.

17. CIO is obligated to indemnify Customer with respect to claims of infringement

regarding the Style 403XR and Style 436XR sunglasses supplied by CIO to Customer.

18. Oakley has previously asserted the D339 Patent and the D571 Patent in litigation

against third parties, joined with non-patent claims including claims for trade dress infringement,

unfair competition and false designation of origin under the Lanham Act (15 U.S.C. 1125(a)),

and unfair competition under state law. Cases in which Oakley has asserted either or both of the

-4-
 Case 1:17-cv-04046 Document 1 Filed 05/30/17 Page 5 of 12

D339 and D571 Patents joined with non-patent claims include the following: Oakley, Inc. v. Time

Plaza, Inc., Case No. 3:16-cv-02029 (S.D. Cal.); Oakley, Inc. v. Moda Collection, LLC, Case No.

8:16-cv-00160 (C.D. Cal.); Oakley, Inc. v. Sunrayz, Case No. 3:15-cv-01582 (S.D. Cal.); Oakley,

Inc. v. Lipopsun Intl Corp., Case No. 3:15-cv-00682 (S.D. Cal.); Oakley, Inc. v. Navajo

Manufacturing, Co., Case No. 8:14-cv-01078 (C.D. Cal.); Oakley, Inc. v. Global Vision Eyewear

Corp., Case No. 3:14-cv-01545 (S.D. Cal.); and Oakley, Inc. v. Marsalle, Inc., Case No. 3:09-cv-

01491 (S.D. Cal.).

NON-INFRINGEMENT BY STYLE 403XR

19. The ornamental appearance of the Style 403XR sunglasses is plainly dissimilar to

the claimed design of the D339 Patent. Due to the numerous differences between the claimed

design and Style 403XR, the D339 Patent is not infringed by Style 403XR under the applicable

legal standard.

20. Exhibit F hereto (incorporated herein by reference), without limitation, indicates

certain of the ornamental features of the claimed design of the D339 Patent which are different

and/or absent from the Style 403XR sunglasses. The different and/or absent ornamental features

referred to in Exhibit F are depicted in the D339 Patent in solid lines, indicating that they are

limitations on the claimed design.

21. Any similarities between the Style 403XR sunglasses and the claimed design of the

D339 Patent are functional rather than ornamental in nature, and do not constitute design patent

infringement.

22. Upon information and belief, the claimed design of the D339 Patent has not

developed secondary meaning and acquired distinctiveness such that in the minds of the public,

the primary significance of the design is to identify Oakley as the source of the product rather than

-5-
 Case 1:17-cv-04046 Document 1 Filed 05/30/17 Page 6 of 12

the product itself. Therefore, the claimed design of the D339 Patent is not protectable trade dress

under the Lanham Act and related state law.

23. There is no likelihood that the Style 403XR sunglasses will cause confusion as to

source, affiliation, connection or association of CIO or Customer with Oakley, or as to the origin,

sponsorship, or approval of the Style 403XR sunglasses by Oakley.

24. Oakley has not suffered any injury or damage as a result of CIOs or Customers

activities in connection with the Style 403XR sunglasses.

25. Oakley is not entitled to any accounting or recovery from CIO or Customer of

revenues or profits from their sales of the Style 403XR sunglasses.

NON-INFRINGEMENT BY STYLE 436XR

26. The ornamental appearance of the Style 436XR sunglasses is plainly dissimilar to

the claimed design of the D571 Patent. Due to the numerous differences between the claimed

design and Style 436XR, the D571 Patent is not infringed by Style 436XR under the applicable

legal standard.

27. Exhibit G hereto (incorporated herein by reference), without limitation, indicates

certain of the ornamental features of the claimed design of the D571 Patent which are different

and/or absent from the Style 436XR sunglasses. The different and/or absent ornamental features

referred to in Exhibit G are depicted in the D571 Patent in solid lines, indicating that they are

limitations on the claimed design.

28. Any similarities between the Style 436XR sunglasses and the claimed design of the

D571 Patent are functional rather than ornamental in nature, and do not constitute design patent

infringement.

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 Case 1:17-cv-04046 Document 1 Filed 05/30/17 Page 7 of 12

29. Upon information and belief, the claimed design of the D571 Patent has not

developed secondary meaning and acquired distinctiveness such that in the minds of the public,

the primary significance of the design is to identify Oakley as the source of the product rather than

the product itself. Therefore, the claimed design of the D571 Patent is not protectable trade dress

under the Lanham Act and related state law.

30. There is no likelihood that Style 436XR will cause confusion as to source,

affiliation, connection or association of CIO or Customer with Oakley, or as to the origin,

sponsorship, or approval of the Style 436XR sunglasses by Oakley.

31. Oakley has not suffered any injury or damage as a result of CIOs or Customers

activities in connection with the Style 436XR sunglasses.

32. Oakley is not entitled to any accounting or recovery from CIO or Customer of

revenues or profits from their sales of the Style 436XR sunglasses.

FIRST CLAIM
(Declaratory Judgment of Non-Infringement of U.S. Patent No. D564,571)

33. CIO incorporates and realleges Paragraphs 1 through 32 of this Complaint as

though fully set forth herein.

34. Upon information and belief, Oakley owns the D571 Patent.

35. Oakley has alleged that that the Style 436XR sunglasses supplied by CIO and

retailed by Customer infringe the D571 Patent.

36. An actual controversy exists between CIO and Oakley as to whether Style 436XR

infringes the D571 Patent. The controversy is between parties having adverse legal interests and

is of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.

37. The Style 436XR sunglasses do not infringe the D571 Patent.

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 Case 1:17-cv-04046 Document 1 Filed 05/30/17 Page 8 of 12

38. CIO and Customer have not infringed, have not actively induced others to infringe,

and have not contributed to any infringement of the D571 Patent, by any importation, offer for

sale, sale, and/or use of the Style 436XR sunglasses.

39. CIO is entitled to a declaration by this Court that the Style 436XR sunglasses do

not infringe the D571 Patent.

40. CIO is entitled to a declaration by this Court that CIO and Customer have not

infringed, have not actively induced others to infringe, and have not contributed to infringement

of the D571 Patent by any importation, offer for sale, sale, and/or use of the Style 436XR

sunglasses.

41. CIO is entitled to further necessary or proper relief based on the Courts declaratory

judgment or decree.

SECOND CLAIM
(Declaratory Judgment of No Trade Dress Infringement, Unfair Competition, or False
Designation of Origin Under the Lanham Act, and No Unfair Competition Under State Law
Related to U.S. Patent No. D564,571)

42. CIO incorporates and realleges Paragraphs 1 through 41 of this Complaint as

though fully set forth herein.

43. In conjunction with allegations of infringement of the D571 Patent against others,

Oakley has alleged related claims of trade dress infringement, unfair competition, or false

designation of origin under the Lanham Act, and unfair competition under state law. Additionally,

in Oakleys letter to Customer, Oakley demands that Customer stop any further infringement of

Oakleys intellectual property rights generally.

44. An actual controversy exists between CIO and Oakley as to whether Style 436XR

infringes Oakleys alleged intellectual property rights related to the alleged infringement of the

D571 Patent, including related claims of trade dress infringement, unfair competition, or false

-8-
 Case 1:17-cv-04046 Document 1 Filed 05/30/17 Page 9 of 12

designation of origin under the Lanham Act, and unfair competition under state law. The

controversy is between parties having adverse legal interests and is of sufficient immediacy and

reality to warrant the issuance of a declaratory judgment.

45. CIO and Customer have not committed trade dress infringement, unfair

competition, or false designation of origin under the Lanham Act, and have not committed unfair

competition under state law, by their activities with respect to the Style 436XR sunglasses.

46. CIO is entitled to a declaration by this Court that CIO and Customer have not

committed trade dress infringement, unfair competition, or false designation of origin under the

Lanham Act, and have not committed unfair competition under state law, by their activities with

respect to the Style 436XR sunglasses.

47. CIO is entitled to further necessary or proper relief based on the Courts declaratory

judgment or decree.

THIRD CLAIM
(Declaratory Judgment of Non-Infringement of U.S. Patent No. D705,339)

48. CIO incorporates and realleges Paragraphs 1 through 32 of this Complaint as

though fully set forth herein.

49. Upon information and belief, Oakley owns the D339 Patent.

50. Oakley has alleged that that the Style 403XR sunglasses supplied by CIO and

retailed by Customer infringe the D339 Patent.

51. An actual controversy exists between CIO and Oakley as to whether Style 403XR

infringes the D339 Patent. The controversy is between parties having adverse legal interests and

is of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.

52. The Style 403XR sunglasses do not infringe the D339 Patent.

-9-
 Case 1:17-cv-04046 Document 1 Filed 05/30/17 Page 10 of 12

53. CIO and Customer have not infringed, have not actively induced others to infringe,

and have not contributed to any infringement of the D339 Patent, by any importation, offer for

sale, sale, and/or use of the Style 403XR sunglasses.

54. CIO is entitled to a declaration by this Court that the Style 403XR sunglasses do

not infringe the D339 Patent.

55. CIO is entitled to a declaration by this Court that CIO and Customer have not

infringed, have not actively induced others to infringe, and have not contributed to infringement

of the D339 Patent by any importation, offer for sale, sale, and/or use of the Style 403XR

sunglasses.

56. CIO is entitled to further necessary or proper relief based on the Courts declaratory

judgment or decree.

FOURTH CLAIM
(Declaratory Judgment of No Trade Dress Infringement, Unfair Competition, or False
Designation of Origin Under the Lanham Act, and No Unfair Competition Under State Law
Related to U.S. Patent No. D705,339)

57. CIO incorporates and realleges Paragraphs 1 through 32 and 48 through 56 of this

Complaint as though fully set forth herein.

58. In conjunction with allegations of infringement of the D339 Patent against others,

Oakley has alleged related claims of trade dress infringement, unfair competition, or false

designation of origin under the Lanham Act, and unfair competition under state law. Additionally,

in Oakleys letter to Customer, Oakley demands that Customer stop any further infringement of

Oakleys intellectual property rights generally.

59. An actual controversy exists between CIO and Oakley as to whether Style 403XR

infringes Oakleys alleged intellectual property rights related to the alleged infringement of the

D339 Patent, including related claims of trade dress infringement, unfair competition, or false

-10-
 Case 1:17-cv-04046 Document 1 Filed 05/30/17 Page 11 of 12

designation of origin under the Lanham Act, and unfair competition under state law. The

controversy is between parties having adverse legal interests and is of sufficient immediacy and

reality to warrant the issuance of a declaratory judgment.

60. CIO and Customer have not committed trade dress infringement, unfair

competition, or false designation of origin under the Lanham Act, and have not committed unfair

competition under state law, by their activities with respect to the Style 403XR sunglasses.

61. CIO is entitled to a declaration by this Court that CIO and Customer have not

committed trade dress infringement, unfair competition, or false designation of origin under the

Lanham Act, and have not committed unfair competition under state law, by their activities with

respect to the Style 403XR sunglasses.

62. CIO is entitled to further necessary or proper relief based on the Courts declaratory

judgment or decree.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff CIO requests judgment as follows:

a. A declaratory judgment that the Style 436XR sunglasses do not infringe the D571

Patent.

b. A declaratory judgment that CIO and Customer have not infringed, have not

actively induced others to infringe, and have not contributed to infringement of the D571 Patent

by any importation, offer for sale, sale, and/or use of the Style 436XR sunglasses.

c. A declaratory judgment that CIO and Customer have not committed trade dress

infringement, unfair competition, or false designation of origin under the Lanham Act, and have

not committed unfair competition under state law, by their activities with respect to the Style

436XR sunglasses.

-11-
 Case 1:17-cv-04046 Document 1 Filed 05/30/17 Page 12 of 12

d. A declaratory judgment that the Style 403XR sunglasses do not infringe the D339

Patent.

e. A declaratory judgment that CIO and Customer have not infringed, have not

actively induced others to infringe, and have not contributed to infringement of the D339 Patent

by any importation, offer for sale, sale, and/or use of the Style 403XR sunglasses.

f. A declaratory judgment that CIO and Customer have not committed trade dress

infringement, unfair competition, or false designation of origin under the Lanham Act, and have

not committed unfair competition under state law, by their activities with respect to the Style

403XR sunglasses.

g. An award of CIOs attorneys' fees, and full costs and disbursements in this action;

and

h. For such other and further relief as the Court may deem proper and just.

Respectfully submitted,

Dated: May 30, 2017 /s/ Bradley S. Corsello

John Zaccaria
Bradley S. Corsello
Peter Bucci
NOTARO, MICHALOS & ZACCARIA P.C.
100 Dutch Hill Road
Orangeburg, NY 10962
Tel: (845) 359-7700
Fax: (845) 359-7798

Attorneys for Plaintiff Colors in Optics, Ltd.

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 Case 1:17-cv-04046 Document 1-6 Filed 05/30/17 Page 1 of 4

EXHIBIT F - NON-INFRINGEMENT OF THE D339 PATENT BY THE STYLE 403XR SUNGLASSES

Ornamental Description Comparison with Style 403XR

Feature
A Solid line at hinge of temples having a Line having the claimed shape is absent
particular shape
B Solid line on temples distal from center Line having the claimed shape is absent
curve E, and having a particular shape
C Solid line at earpieces having a Line entirely absent
particular shape
D Curved contour in temples having a Curved contour having the claimed shape is absent
particular shape
E Center curve which terminates at about Center curve which continues as a straight line as claimed
one-third the distance from the end of is absent
the temples and continues as a straight
line to the end of the temples
F Rim extending downward from hinge Rim extending downward from hinge as claimed is absent
along lens
G Straight earpiece with no surface Straight earpiece with no surface ornamentation as
ornamentation claimed is absent
H Hinges visible from front of frame Front-visible hinges as claimed are absent
I Relatively heavy partial rims Relatively heavy partial rims as claimed are absent

J Relatively heavy bridge Relatively heavy bridge as claimed is absent

K Integral nose pads without Integral nose pads without ornamentation as claimed are
ornamentation absent, 403XR nose pads are a separate part with rows of
ornamental oval cutouts
Case 1:17-cv-04046 Document 1-6 Filed 05/30/17 Page 2 of 4
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 Case 1:17-cv-04046 Document 1-7 Filed 05/30/17 Page 1 of 4

EXHIBIT G - NON-INFRINGEMENT OF THE D571 PATENT BY THE STYLE 436XR SUNGLASSES

Ornamental Description Comparison with Style 436XR

Feature
A Solid line at hinge of temples having a Line having the claimed shape is absent
particular shape
B Solid line on temples having a particular Line having the claimed shape is absent
shape
C Solid line on temples having a particular Line having the claimed shape is absent
shape
D Solid line on earpieces having a Line having the claimed shape is absent
particular shape
E Curved contour on temples and Curved contour having the claimed shape is absent
extending onto frames having a
particular shape

F Earpieces terminating in a forward- Earpieces differently shaped, and terminating in a

slanted surface
G Side rim protruding outward extending
over halfway down the edge of the
lenses
H Forward protrusion from bridge
I Nose pads without ornamentation,
integral to bridge
J Relatively heavy nose pads
backward-slanting surface
Side rim as claimed is absent
Protrusion from bridge is absent
Nose pads as claimed are absent, 436XR nose pads are
a separate piece extending across the bridge and having
rows of ornamental protruding fingers
Relatively heavy nose pads as claimed are absent

K Opposed concave curvatures of temples Opposed concave curvatures as claimed are absent

L Smooth temples without ornamental 436XR temples have ornamental ridges

ridges
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