Bath Body Works Brand MGMT v. JFL Enterprises - Complaint

Case: 2:17-cv-01058-MHW-EPD Doc #: 1 Filed: 12/07/17 Page: 1 of 10 PAGEID #: 1
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BATH & BODY WORKS BRAND

MANAGEMENT, INC.,
Plaintiff,
Civil Action No.: 2:17-cv-01058
v.
JFL ENTERPRISES, INC., and BED BATH

& BEYOND, INC., Jury Trial Requested
Defendants.
COMPLAINT FOR PATENT INFRINGEMENT
Plaintiff Bath & Body Works Brand Management, Inc. (Bath & Body Works or
Plaintiff) hereby complains against defendants JFL Enterprises, Inc. (JFL) and Bed Bath &
Beyond, Inc. (Bed Bath) (collectively, Defendants) and for its cause of action alleges as
follows:
PARTIES
1. Plaintiff Bath & Body Works is a Delaware corporation with a place of business
at 7 Limited Parkway East, Reynoldsburg, Ohio 43068.
2. On information and belief, Defendant JFL is an Ohio corporation with a place of
business at 4900 Train Avenue, Cleveland, Ohio 44102.
3. On information and belief, JFL does regular business in this judicial district and
has committed acts of infringement in this judicial district.
4. On information and belief, Defendant Bed Bath is a New York corporation with
a place of business at 650 Liberty Avenue, Union, NJ 07083.
Page 1 of 10
5. Bed Bath does regular business in this judicial district and has committed acts of
infringement in this judicial district.
JURISDICTION AND VENUE
6. This is an action for infringement under the patent laws of the United States, 35
U.S.C. 271, et seq., and this Court has jurisdiction over the subject matter of this dispute
pursuant to 28 U.S.C. 1331 and 1338(a).
7. Defendants are subject to personal jurisdiction in this judicial district because they
have conducted and continue to conduct business in this judicial district, including offering for
sale and selling in this district at least some of the products at issue in this dispute.
8. Venue is proper in this Court under 28 U.S.C. 1400(b) and 28 U.S.C. 1391(b)
because Defendants have conducted and/or continue to conduct business in this judicial district,
and because at least some of the acts giving rise to this Complaint occurred in this judicial
district.
FACTUAL BACKGROUND
9. Bath & Body Works is a leading retailer of personal and home care products,
including scented hand sanitizer gel. Bath & Body Works sells its products only through its Bath
& Body Works retail stores and Bath & Body Works website.
10. On information and belief, JFL manufactures and sells novelty gifts, including
scented hand sanitizer gel. JFL sells products to other retailers, including Bed Bath, and also sells
direct to consumers on its website.
11. Bed Bath is a retailer of home goods and personal care products, including
scented hand sanitizer gel.
Page 2 of 10
12. Bath & Body Works is the owner of U.S. Patent No. D752,442 (the 442
Patent), entitled Bottle. A true and correct copy of the 442 Patent is attached as Exhibit A.
The 442 Patent covers an ornamental design for a bottle.
13. The 442 Patent is presumed valid pursuant to 35 U.S.C. 282.
14. Defendants are, without authority or license from Bath & Body Works, offering
for sale and selling within the United States scented hand sanitizer gel products in bottles that
appropriate the designs protected by the 442 Patent. On information and belief, Defendant JFL
is also importing such products.
15. Defendant JFL manufactures, imports, offers for sale, and sells the infringing
bottles. The bottles are identified as products of Tootsie Roll Industries, LLC.
16. Bed Bath offers for sale and sells the infringing bottles at retail locations
throughout the United States, including at retail locations within this judicial district.
17. The Figures from the 442 Patent compared to photographs of a representative
sample of the accused bottles are shown here:
Patent Figure Product
Page 3 of 10
Page 4 of 10
Page 5 of 10
18. In the eyes of the ordinary observer familiar with the relevant prior art, giving
such attention as a purchaser usually gives, the design claimed in the 442 Patent and the bottles
made, imported, offered for sale, and sold by Defendants are substantially the same.
19. On September 12, 2017, Plaintiff's counsel sent letters to Tootsie Roll Industries,
LLC and Bed Bath, informing them of their infringement of the 442 Patent. Defendant JFLs
counsel responded on behalf of Tootsie Roll and identified JFL as the manufacturer of the bottles
at issue.
20. Despite having received notice of its infringement on September 12, 2017,
Defendants have continued to offer the infringing bottles for sale. JFL, as of December 4, 2017,
continues to offer its infringing bottles for sale on its website. See Exhibit B. Upon information
and belief, Bed Bath continued to offer the product for sale in its retail stores until at least
November 30, 2017.
21. At least since September 12, 2017, Defendants have had knowledge of the 442
Patent and their continuing offer for sale and sale of the infringing bottles constitutes willful,
deliberate infringing activity.
CLAIM FOR RELIEF

Infringement of U.S. Patent No. D752,442
22. Bath & Body Works hereby incorporates the allegations in Paragraphs 1 through
21 above as though fully set forth herein.
23. On information and belief, Defendants have made, used, imported, sold, and
offered to sell bottles that infringe the 442 patent, and they continue to do so. Examples of
Defendants infringing bottles include products sold with labels bearing the marks Charms,
Tootsie Roll, DOTS, and Double Bubble, as shown below:
Page 6 of 10
24. Defendants making, using, importing, selling, and/or offering to sell bottles
covered by the 442 Patent has been without authority or license from Plaintiff and in violation
of Plaintiffs rights, thereby infringing (either literally or through the doctrine of equivalents) the
442 Patent.
25. By their actions, Defendants have violated 35 U.S.C. 271.
26. On information and belief, Defendants infringement will continue unless
enjoined by this Court.
Page 7 of 10
27. Bath & Body Works has been damaged by Defendants infringement of the 442
Patent and will continue to be irreparably damaged unless this Court enjoins Defendants
infringement. Bath & Body Works does not have an adequate remedy at law.
28. Bath & Body Works is entitled to recover from Defendants damages in an amount
sufficient to compensate it for the lost profits and/or reasonable royalty attributable to
infringement of the 442 Patent by Defendants, and any additional profits attributable to such
infringement in an amount to be determined at trial, together with prejudgment interest thereon.
29. On information and belief, Defendants infringement is willful, intentional, and
deliberate. Accordingly, this case is exceptional under 35 U.S.C. 285, and Bath & Body Works
is entitled to recover treble damages and its reasonable attorneys fees, expenses, and costs
incurred in this action.
PRAYER FOR RELIEF
WHEREFORE, Bath & Body Works respectfully requests that this Court enter judgment
and relief as follows:
A. A judgment that Defendants have infringed the 442 Patent;
B. An order that Defendants make an accounting to Bath & Body Works and
judgment in favor of Bath & Body Works and against Defendants for
a. disgorgement of total profits derived by Defendants from their
infringement of the 442 Patent, pursuant to 35 U.S.C. 289 ; and
b. actual damages pursuant to 35 U.S.C. 284 in an amount to be
determined at trial, but in no event less than a reasonable royalty for
infringement of the 442 Patent; and
c. interest on all damages;
Page 8 of 10
C. A preliminary and permanent injunction to enjoin Defendants and their
officers, agents, directors, employees, parents, subsidiaries, affiliates, divisions,
successors, assigns, and all persons in privity or active concert or participation with them
from infringing the 442 Patent;
D. An order directing that all items that infringe the 442 Patent be delivered
up to Bath & Body Works or destroyed;
E. An order finding that this case is exceptional under 35 U.S.C. 285 and
awarding Plaintiff its reasonable attorney fees, expenses, and costs incurred in this action;
F. An order declaring that Defendants infringement of the 442 patent is and
was willful and awarding Plaintiff treble damages under 35 U.S.C. 284;
G. An award of such other and further relief as this Court deems just and
proper.
DEMAND FOR JURY TRIAL
Pursuant to the Federal Rules of Civil Procedure 38(b), Plaintiff demands a trial by jury
for this action on all issues so triable.
Dated: December 7, 2017
/s/ Michael J. Garvin

Michael J. Garvin (0025394)
Trial Attorney
Vorys, Sater, Seymour and Pease LLP
200 Public Square
Suite 1400
Cleveland, Ohio 44114-2327
216.479.6188
mjgarvin@vorys.com
Lynn Rzonca (pro hac vice application to be filed)
Page 9 of 10
Christie Larochelle (pro hac vice application to be

filed)
Ballard Spahr LLP
1735 Market Street
Philadelphia, Pennsylvania 19103
215.665.8500
rzoncal@ballardspahr.com
Page 10 of 10
Case: 2:17-cv-01058-MHW-EPD Doc #: 1-1 Filed: 12/07/17 Page: 1 of 7 PAGEID #: 11
USOOD752442S
(12) United States Design Patent (10) Patent No.: US D752.442 S

ODonahue (45) Date of Patent: . Mar. 29, 2016
(54) BOTTLE D638,715 S * 5/2011 Albaum ......................... D9.529
D644.313 S * 8/2011 Westphal ... ... D23,366
D644,516 S * 9/2011 Howell ....... ... D9? 435
(71) Applicant: the Year burg, OH
anagement, Inc., Keynoldsburg,
D650,686 S * 12/2011 de Cleir .
D655,199 S * 3/2012 Ciriani ...
D9,529
... D9,686
(US) D656,409 S * 3/2012 Tadmor ... D9,687
D663,893 S * 7/2012 Hosler ... ... D28.7
(72) Inventor: Samuel Dominic ODonahue, New D693,690 S * 1 1/2013 Wakui......... ... D9,516
York, NY (US) D698.248 S * 1/2014 Lambrecht .. ... D9,444
s D723,375 S * 3/2015 Brune ............................ D9,449
ck
(73) Assignee: Bath & Body Works Brand 2010, 0147864 A1* 6, 2010 Howes ................... B652:
Management, Inc., Reynoldsburg, OH
(US) OTHER PUBLICATIONS
(**) Term: 14 Years Google Search URLs.http://www.amazon.com/gp/product?
B012C5E4V6/ref=pd lpo sbs dip SS 3?pf rod p=
(21) Appl. No.: 29/493,400 19446.87542&pf rod S=lpo-top-stripe-1&pf rod t201&pf rod
i=B00VO693 DE&pf ral m=ATVPDKIKZXODER&pf ra
(22) Filed: Jun. 9, 2014 r=OK2ORROFYZP6922N4XZ7|Date searched Sep. 11, 2015.*
(51) LOC (10) Cl. ................................................ O9-O1 * cited by examiner
(52) U.S. Cl.
USPC ............................................. D9/529; D9/558 Primary Examiner Philip S Hyder
(58) Field of Classification Search Assistant Examiner Keith Frank
USPC .......... D9/435, 446 447, 449, 516, 529, 530, (74) Attorney, Agent, or Firm Andrus Intellectual
D9/542, 549, 558, 575,682,686, Property Law, LLP
D9/688692; 215/235-237, 379,381-383; s
220/324, 660, 669, 675. 810, 831
Dzer in Dzis inn. (57) CLAM
CPC ............ B65D 1700; B65D 1/02: E.% The ornamental design for a bottle, as shown and described.
See application file for complete search history. DESCRIPTION
56 Ref
(56) eerees Cited
e FIG. 1 is a front perspective view of a bottle;
U.S. PATENT DOCUMENTS FIG. 2 is a front view thereof;
FIG. 3 is a back view thereof;
R.S.S s : RE R . . . . . ...........................
artinez . . . . . . . . . . . . . . . . . . . . . . . Dis FIG. 4 is a left side view thereof;
D491,456 S * 6/2004 Cagle ... D9,687 E. is a right side hereof.
D510,527 S * 10/2005 Tune ... ... D9,684 .6 is a top view thereof;
D528,012 S * 9/2006 Snyder . D9/529 FIG. 7 is a bottom view thereof, and,
D530,621 S * 10/2006 Rashid . . . . D9,686 FIG. 8 is a front perspective view thereofshowing a cap of the
B63 s : A38. St. CWaa, B3 bottle in an alternative position.
D598,753 S * 8/2009 Schwartz ... ... D9, 435 The broken lines in FIGS. 7-8 represent subject matter that
D609, 100 S * 2/2010 Licari ... D9,522 forms no part of the claimed design shown therein.
D633,390 S * 3/2011 Toh ....... ... D9,516
D637,647 S * 5/2011 Allison .......................... D19,73 1 Claim, 6 Drawing Sheets
EXHIBIT A
U.S. Patent Mar. 29, 2016 Sheet 1 of 6 US D752.442 S

FIG. 2
FIG. 3
FIG. 4 FIG. 5

FIG. 8
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Bath Body Works Brand MGMT v. JFL Enterprises - Complaint

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Case: 2:17-cv-01058-MHW-EPD Doc #: 1 Filed: 12/07/17 Page: 1 of 10 PAGEID #: 1

UNITED STATES DISTRICT COURT

BATH & BODY WORKS BRAND

JFL ENTERPRISES, INC., and BED BATH

COMPLAINT FOR PATENT INFRINGEMENT

at 7 Limited Parkway East, Reynoldsburg, Ohio 43068.

2. On information and belief, Defendant JFL is an Ohio corporation with a place of

business at 4900 Train Avenue, Cleveland, Ohio 44102.

has committed acts of infringement in this judicial district.

a place of business at 650 Liberty Avenue, Union, NJ 07083.

infringement in this judicial district.

JURISDICTION AND VENUE

pursuant to 28 U.S.C. 1331 and 1338(a).

direct to consumers on its website.

scented hand sanitizer gel.

The 442 Patent covers an ornamental design for a bottle.

13. The 442 Patent is presumed valid pursuant to 35 U.S.C. 282.

is also importing such products.

sample of the accused bottles are shown here:

Patent Figure Product

November 30, 2017.

deliberate infringing activity.

CLAIM FOR RELIEF

21 above as though fully set forth herein.

Tootsie Roll, DOTS, and Double Bubble, as shown below:

25. By their actions, Defendants have violated 35 U.S.C. 271.

26. On information and belief, Defendants infringement will continue unless

enjoined by this Court.

infringement in an amount to be determined at trial, together with prejudgment interest thereon.

29. On information and belief, Defendants infringement is willful, intentional, and

incurred in this action.

PRAYER FOR RELIEF

and relief as follows:

A. A judgment that Defendants have infringed the 442 Patent;

a. disgorgement of total profits derived by Defendants from their

infringement of the 442 Patent, pursuant to 35 U.S.C. 289 ; and

b. actual damages pursuant to 35 U.S.C. 284 in an amount to be

determined at trial, but in no event less than a reasonable royalty for

infringement of the 442 Patent; and

c. interest on all damages;

C. A preliminary and permanent injunction to enjoin Defendants and their

officers, agents, directors, employees, parents, subsidiaries, affiliates, divisions,

from infringing the 442 Patent;

up to Bath & Body Works or destroyed;

F. An order declaring that Defendants infringement of the 442 patent is and

DEMAND FOR JURY TRIAL

for this action on all issues so triable.

Dated: December 7, 2017

/s/ Michael J. Garvin

Lynn Rzonca (pro hac vice application to be filed)

Christie Larochelle (pro hac vice application to be

(12) United States Design Patent (10) Patent No.: US D752.442 S

U.S. Patent Mar. 29, 2016 Sheet 1 of 6 US D752.442 S

U.S. Patent Mar. 29, 2016 Sheet 2 of 6 US D752.442 S

U.S. Patent Mar. 29, 2016 Sheet 3 of 6 US D752.442 S

U.S. Patent Mar. 29, 2016 Sheet 4 of 6 US D752.442 S

U.S. Patent Mar. 29, 2016 Sheet 5 of 6 US D752.442 S

U.S. Patent Mar. 29, 2016 Sheet 6 of 6 US D752.442 S

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