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Case 3:18-cv-00618-BEN-NLS Document 1 Filed 03/26/18 PageID.

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1 Matthew H. Capron (Bar No. CA 303941)


Capron Law Offices
2 2220 Otay Lakes Rd Suite 502-92
Chula Vista, CA 91915
3 Tel: (619) 869-8181
Fax: (619) 638-8181
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Email: mcapron@capronlegal.com
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Attorneys for Plaintiff Luminence, LLC,
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UNITED STATES DISTRICT COURT
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FOR THE SOUTHERN DISTRICT OF CALIFORNIA
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LUMINENCE, LLC,
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Plaintiff, CASE NUMBER: '18CV0618 BEN NLS
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vs. COMPLAINT, JURY DEMAND
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EACHBIT TRADE, LLC,
15 STARMERX LLC, STARMERX
TECHNOLOGIES LLC, HAIZHENG
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ZHANG, an individual
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Defendants.

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COMPLAINT AND JURY DEMAND
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Plaintiff, Luminence, LLC (“Plaintiff”), by its undersigned attorneys, CAPRON

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LAW OFFICES, for its Complaint alleges as follows:

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SUBSTANCE OF THE ACTION

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1. This is a case of willful copyright infringement in violation of 17 U.S.C. §§
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106(1), 501, and 1202, and 815 I.L.C.S. § 510 et seq. Plaintiff seeks
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compensatory and/or statutory damages in an amount to be established at trial.
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///

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///

COMPLAINT AND JURY DEMAND


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PARTIES
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2. Plaintiff is a limited liability company registered in California with a principal
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place of business at 5580 La Jolla Boulevard #37, La Jolla, California 92037.
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3. Upon information and belief, Eachbit Trade LLC is a company duly organized
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and existing under the laws of Delaware with a principal place of business at 20208 87th
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Avenue South, Kent, WA 98031.
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4. Upon information and belief, Starmerx LLC is a company duly organized and
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existing under the laws of Delaware with a principal place of business at 4624 146th
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Place SE, Bellevue, Washington 98006-3148.
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5. Upon information and belief, Starmerx Technologies LLC is a company duly
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organized and existing under the laws of Delaware with a principal place of business at
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4624 146th Place SE, Bellevue, Washington 98006-3148.
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6. Upon information and belief, Defendant, Haizheng Zhang (aka: Patrick Zhang),
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is an individual with a principal residence at 4624 146th Place SE, Bellevue,
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Washington 98006-3148.
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7. Defendants are collectively referred to as "Defendant(s)."
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JURISDICTION AND VENUE
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8. This is a civil action seeking damages and injunctive relief for copyright
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infringement under the copyright laws of the United States, and therefore this Court has
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jurisdiction under 17 U.S.C. § 101 et seq.; 28 U.S.C. § 1331 (federal question
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jurisdiction), and 28 U.S.C. § 1338(a) (jurisdiction over copyright actions).
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9. Personal jurisdiction over Defendant is proper. Defendant is conducting
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business in this District with systematic and continuous contacts within this state, and
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committing torts in this state, including without limitation Defendant’s copyright
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infringement, which causes harm in this state and judicial district.
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10. Pursuant to 28 U.S.C. § 1391, venue properly lies in this Court because a
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substantial part of the events giving rise to the claims herein occurred in this judicial
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district.

COMPLAINT AND JURY DEMAND


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FACTS COMMON TO ALL CLAIMS FOR RELIEF
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A. Plaintiff’s Business
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11. Plaintiff creates and sells fun and unique fiber optic light-up accessories
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including, but not limited to, its Glowbys® brand hair attachments.
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12. Plaintiff sells its products through its website, www.luminence.com.
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13. In support of its business, Plaintiff created artistic and expressive photographic
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images of Glowbys products displayed on a model.
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14. On February 26, 2013, Plaintiff obtained a registration with the United States
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Copyright Office, Registration Number VA 1-897-465, for the photographic work
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entitled Girl Wearing Glowbys 1. Plaintiff obtained a registration with the United States
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Copyright Office for the photographic works entitled: Girl with Pigtails Wearing
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Glowbys, Registration Number VA 2-030-354; Girl Wearing Multicolor Glowbys,
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Registration Number VA 2-033-238; Girl Wearing White
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Glowbys, US Registration Number VA 2-033-385; and Girl Wearing Purple
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Glowbys, US Registration Number VA 2-058-360.
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15. The registered photographic works are collectively referred to as the
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“Copyrighted Works”. Plaintiff’s Copyrighted Works are viewable and downloadable at
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www.luminence.com/photos.html.
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16. Viewable and downloadable at www.luminence.com/copyrightcert.html are
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copies of United States Copyright Registration Numbers VA 1-897-465, VA 2-030-354,
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VA 2-033-238, VA 2-033-385, and VA 2-058-360.
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17. Plaintiff has never licensed, authorized, or otherwise permitted the Defendant
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to reproduce, distribute, display or otherwise use the Copyrighted Works.
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B. Defendant’s Unlawful Activities
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18. Defendant creates, markets, sells, warehouses and ships various retail
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products, including fiber optic light-up hair accessories, via its companies: Starmerx
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LLC, Starmerx Technologies LLC, Eachbit Trade LLC, and Shenzhen Starmerx E-
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commerce Co., Ltd. Defendant’s online sales channels include, but are not limited to,

COMPLAINT AND JURY DEMAND


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its’ eBay stores Tankymall and Nankymall. Defendant directly competes with Plaintiff
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by selling Flash Braid brand fiber optic light-up hair accessories (“Competing Product”).
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The packaging of the Competing Product makes unauthorized use of one of the
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Copyrighted Works (VA 1-897-465).
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19. On October 16, 2014, Plaintiff’s ordered a fiber optic light up hair clip
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product from Defendant’s eBay listing Tankymall 251630006902. Based on that on-line
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order and purchase, Defendant shipped its hair clip product from Eachbit Trade LLC to
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Plaintiff. Defendant’s hair clip product was the Competing Product with the packaging
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showing one of the Copyrighted Works.
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20. On October 24, 2014, Plaintiff wrote to the Defendant via eBay message to
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inform it of Plaintiff’s copyright registration and of the infringing packaging of the
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Competing Product, and requested that Defendant destroy all copies of the infringing
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packaging.
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21. On October 24, 2014, Defendant responded to Plaintiff via eBay message,
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indicating that Defendant would consider Plaintiff’s advice.
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22. On November 6, 2016, Plaintiff wrote Defendant via email to inform it of
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Plaintiff’s copyright registration and of the infringing packaging of the Competing
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Product, and requested that Defendant destroy all copies of the infringing packaging.
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23. On November 10, 2016, Plaintiff wrote to Defendant at Eachbit Trade LLC
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address via USPS Priority Mail to inform it of Plaintiff’s copyright registration and of
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the infringing packaging of the Competing Product, and requested that Defendant
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destroy all copies of the infringing packaging.
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24. On November 11, 2016, Plaintiff’s investigator ordered a fiber optic light up
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hair clip product from Defendant’s eBay listing Tankymall 251630006902, which
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showed two of the Copyrighted Works (VA 2-033-238 and VA 2-033-385). Based on
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that on-line order and purchase, Defendant shipped its hair clip product to Plaintiff's
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investigator. The Defendant’s hair clip product was the Competing Product.
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COMPLAINT AND JURY DEMAND


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25. On December 20, 2017, Plaintiff ordered a fiber optic light up hair clip
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product from Defendant’s eBay listing Nankymall 222674759073, which showed one of
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the Copyrighted Works (VA 2-030-354). Based on that on-line order and purchase,
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Defendant shipped its hair clip product to Plaintiff's investigator. Defendant’s hair clip
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product was the Competing Product.
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26. On December 30, 2017, Plaintiff wrote the Defendant via email to inform it of
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Plaintiff’s copyright registration and of the infringing packaging of the Competing
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Product, and to inform it that the Copyrighted Works are not authorized to be used in the
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sale and marketing of any non-Glowbys® product.
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27. On January 2, 2018, Plaintiff wrote Defendant via Starmerx email address to
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inform it of Plaintiff’s copyright registration and of the infringing packaging of the
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Competing Product, and to inform it that the Copyrighted Works are not authorized to be
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used in the sale and marketing of any non-Glowbys® product.
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28. On January 4, 2018, Plaintiff wrote the Defendant via eBay message to inform
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it of Plaintiff’s copyright registration and of the infringing packaging of the Competing
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Product, and to inform it that the Copyrighted Works are not authorized to be used in the
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sale and marketing of any non-Glowbys® product. The message specifically referred to
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eBay listing Nankymall 2674759073 showing one of the Copyrighted Works (VA 2-
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030-354).
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29. On January 4, 2018, Defendant ended eBay listing Nankymall 2674759073.
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But Defendant’s various other online listings continue to show all of the Copyrighted
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Works.
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30. On January 14, 2018, Plaintiff ordered a fiber optic light up hair clip product
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from Defendant. Based on that on-line order and purchase, Defendant shipped its hair
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clip product to Plaintiff's investigator. The Defendant’s hair clip product was the
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Competing Product.
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31. Despite multiple notices and demands, Defendant willfully and intentionally
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continued to infringe on Plaintiff’s exclusive copyright in the Copyrighted Works.

COMPLAINT AND JURY DEMAND


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32. Defendant has not denied that its packaging displayed infringing copies of the
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Copyrighted Work, and Defendant has not asserted any valid justification or basis to
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believe it had a right to reproduce, distribute or display the Copyrighted Works.
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FIRST CLAIM FOR RELIEF
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DIRECT COPYRIGHT INFRINGEMENT
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(17 U.S.C. § 101 et seq.)
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33. Plaintiff realleges paragraphs 1 through 22 above and incorporates them by
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reference as if fully set forth herein.
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34. The Copyrighted Work is an original work of authorship, embodying
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copyrightable subject matter, and is entitled to the full protection of the United States
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copyright laws. Plaintiff owns all exclusive rights to reproduce, distribute, display, and
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make derivative works of, the Copyrighted Work.
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35. Upon information and belief, as a result of Plaintiff’s reproduction,
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distribution and public display of the Copyrighted Work, Defendant and/or the supplier
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of packaging materials used by the Defendant, had access to the Copyrighted Work prior
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to the creation, distribution and display of Defendant’s infringing packaging.
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36. By its actions, as alleged above, Defendant has infringed and violated
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Plaintiff’s exclusive rights under the Copyright Act, 17 U.S.C. §501, by reproducing,
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distributing and publicly displaying its infringing reproduction or derivative variation of
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the Copyrighted Work as part of the packaging for its fiber optic light up hair clip
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product.
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37. Defendant’s infringement of Plaintiff’s exclusive copyrights in the
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Copyrighted Work, despite actual notice and demand to cease its infringement, has been
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willful and deliberate, and Defendant has profited at the expense of Plaintiff as a result
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of its infringing conduct.
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38. Pursuant to 17 U.S.C. § 504(b), Plaintiff is entitled to recover his actual
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damages from Defendant’s misappropriation of the Copyrighted Work without paying a
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COMPLAINT AND JURY DEMAND


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license fee, and the disgorgement of Defendant’s profits related to its infringement of the
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Copyrighted Work, which amounts will be proven at trial.
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39. Alternatively, at Plaintiff’s election, Plaintiff is entitled to an award of
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statutory damages under 17 U.S.C. §§ 504(c) in an amount to be determined after trial,
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up to a maximum of $150,000, based on Defendant’s willful infringement of the
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Copyrighted Work.
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40. Defendant’s conduct has caused, and any continued infringing conduct will
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further cause, irreparable injury to Plaintiff unless enjoined by this Court. Plaintiff has
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no adequate remedy at law. Pursuant to 17 U.S.C. § 502, Plaintiff is entitled to a
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permanent injunction prohibiting infringement of Plaintiff’s exclusive rights under
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copyright law.
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WHEREFORE, Plaintiff demands judgment as follows:
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1. Judgment in favor of the Plaintiff finding that Defendant has infringed
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Plaintiff’s exclusive copyrights in the Copyrighted Work under the Copyright Act;
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2. Judgment in favor of the Plaintiff finding that Defendant’s infringement is
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willful;
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3. An award of such of actual damages and profits under 17 U.S.C. § 504(b) as the
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determined after trial, or, in the alternative and at Plaintiff’s election, an award of
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statutory damages under 17 U.S.C. § 504(c), up to a maximum of $150,000;
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4. An award to the Plaintiff of its costs incurred in this action, including its
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reasonable attorneys’ fees, pursuant to 17 U.S.C. § 505;
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5. An award to the Plaintiff of interest, including pre-judgment interest, on the
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foregoing sums;
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6. Permanently enjoining Defendant, its employees, agents, officers, directors,
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attorneys, successors, affiliates, subsidiaries and assigns, and all those in active concert
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and participation with Defendant:
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(a) from directly or indirectly infringing Plaintiff’s copyrights or
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continuing to market, offer, sell, dispose of, license, lease, transfer,

COMPLAINT AND JURY DEMAND


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publicly display, advertise, reproduce, develop or manufacture any
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works derived or copied from the Plaintiff’s Copyrighted Work or to
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participate or assist in any such activity; and
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(b) destroying all copies, whether electronic or physical, of the Plaintiff’s
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Copyrighted Work.
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7. For such other and further relief as the Court may deem just and proper.
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JURY DEMAND
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Plaintiff hereby demands a trial by jury pursuant to Fed. R. Civ. P. 38.
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10 Dated: March 26, 2018 Respectfully submitted,


CAPRON LAW OFFICES
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By: s/Matthew Capron
12 MATTHEW CAPRON
13 Attorneys for Luminence, LLC
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email: mcapron@capronlegal.com

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COMPLAINT AND JURY DEMAND