Case 1:18-cv-01788 Document 1 Filed 03/23/18 Page 1 of 4 PageID #: 1

1 Louis C. Paul & Associates, PLLC

James D. Fornari (JF3433)
2 Louis C. Paul (Member NY Bar; pro hac vice motion to be filed)
299 Park Avenue, 6 Floor
th

3 New York, NY 10171

Telephone and Facsimile: 212-223-8200
4 E-mail: docketing@paulipgroup.com

5 UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK
6
EVRIHOLDER PRODUCTS, LLC Case No.:
7
Plaintiff,
8
v. COMPLAINT FOR PATENT INFRINGEMENT
9
ART AND COOK, INC. JURY TRIAL DEMANDED
10
Defendant.
11

12 COMPLAINT

13 EVRIHOLDER PRODUCTS, LLC complains and alleges against ART AND COOK, INC. as follows:

14 The Parties

15 1. Evriholder Products, LLC (“Plaintiff” or “Evriholder”) is an Indiana limited liability company, having its

16 principal place of business at 1500 South Lewis Street, Anaheim California 92805. As described further

17 hereinbelow, Evriholder is the exclusive licensee of U.S. Design Patent No. D524,612 (“the ’612 Patent”), and has

18 the right to bring an action for enforcement and damages due to the infringement of the ’612 Patent.

19 2. Upon information and belief, Art and Cook Inc. (“Art+Cook” or “Defendant”) is a New York corporation

20 and has an address at 14C 53 Street, 2nd Floor, Brooklyn, New York, 11232.
rd

21 Jurisdiction and Venue

22 3. This is an action for patent infringement in violation of the Patent Act of the United States, 35 U.S.C.

23 §§ 1 et seq.

24 4. This Court has original and exclusive subject matter jurisdiction over the patent infringement claims for

25 relief under 28 U.S.C. §§ 1331 and 1338(a).

26 5. This Court has personal jurisdiction over Defendant. Upon information and belief, Art+Cook has its

27 principal place of business in Brooklyn, within the Eastern District of New York. Art+Cook has transacted and

28 continues to transact business in this judicial district through the marketing and sale of a jar and bottle opener that
Page 1 of 4
 Case 1:18-cv-01788 Document 1 Filed 03/23/18 Page 2 of 4 PageID #: 2

1 infringed the ’612 Patent. Defendant has sufficient contacts with this judicial district to subject itself to the

2 jurisdiction of this Court.

3 6. Venue is proper in this district under 28 U.S.C. §1391(b-c) and 1400(b) because a substantial part of the

4 events or omissions giving rise to the claims occurred in this District, where Defendant has done, and is doing

5 business, and has committed infringing acts.

6 FACTUAL BACKGROUND

7 Evriholder’s EASI-TWIST Jar Opener

8 7. U.S. Design Patent No. D524,612 (“the ’612 Patent”) for a Jar Opener was issued to, and is owned by,

9 Mulberry Imports, Ltd. (“Mulberry”). A true and correct copy of the ’612 Patent is attached as Exhibit A.

10 8. Mulberry has granted an exclusive license to Evriholder to make, have made, import, offer to sell and sell

11 the Jar Opener claimed in the ’612 Patent. This exclusive license grants Evriholder the right to enforce the patent,

12 including the right to file suit to enjoin infringement thereof, and recover damages for infringement of the ’612

13 Patent. The exclusive license provides, in relevant part, that: “MI [MULBERRY IMPORTS] hereby grants

14 EVRI[HOLDER], and EVRI hereby accepts, the exclusive USA rights to Commercialize the Product under the

15 Licensed IP.” A true and correct redacted copy of the agreement between Mulberry and Evriholder granting the

16 exclusive license is attached as Exhibit B.

17 Unauthorized Sale and Marketing of Cook Works Jar & Bottle Opener

18 9. Art+Cook. imported into the United States, marketed and sold Cook Works Jar & Bottle Opener

19 (Model CSC789) (the “Infringing Product”). A true and correct photograph of Cook Works Jar & Bottle Opener

20 (Model CSC789) is attached as Exhibit C.

21 10. At no time was Art+Cook authorized to import, offer to sell or sell a jar opener as claimed in the ’612

22 Patent.

23 11. Cook Works Jar & Bottle Opener (Model CSC789) as sold by Art+Cook is identical (or substantially

24 indistinguishable) in design (i.e., shape) to the protected design claimed in, and protected by, the ‘612 Patent and

25 embodied in Evriholder’s EASI-TWIST jar openers, which are sold by Evriholder as the exclusive licensee of

26 the ’612 Patent.

27 12. On December 19, 2017, and again on January 4, 2018, Evriholder, through counsel, sent letters notifying

28 Art+Cook of Evriholder’s rights under the ’612 Patent and of Art+Cook’s infringement of the ‘612 Patent. The
Page 2 of 4
 Case 1:18-cv-01788 Document 1 Filed 03/23/18 Page 3 of 4 PageID #: 3

1 December 19 letter, requested that Art+Cook (a) immediately cease all sales, advertising, distribution, and
th

2 marketing of Cook Works Jar & Bottle Opener (Model CSC789) and (b) agree, on a going forward basis, unless and

3 until a written license is entered, not to import, manufacture, have manufactured, sell or offer for sale of Cook

4 Works Jar & Bottle Opener (Model CSC789), or any other jar opener as claimed in the '612 Patent.

5 13. On January 18, 2018, Art+Cook, through its counsel, admitted and acknowledged infringement of the ‘612

6 Patent by Art+Cook and replied that Art+Cook (i) “[had imported and] sold a total of 26,472 units” of Cook Works

7 Jar & Bottle Opener (Model CSC789) (ii) “had ceased the sale of [Cook Works Jar & Bottle Opener (Model

8 CSC789)]”, and (iii) “[would] not import or sell any more products of that design, or any design that would be

9 deemed to fall within the scope of the ’612 patent.”

10 CAUSE OF ACTION
Patent Infringement Under 35 U.S.C. §§ 271(a) and (b)
11
14. Evriholder realleges and incorporates by reference the allegations set forth in Paragraphs 1-13.
12
15. On July 11, 2006, U.S. Design Patent No. D524,612 (“the ’612 Patent”) was duly and legally issued.
13
The ’612 Patent is entitled to a presumption of validity.
14
16. Art+Cook has infringed the '612 patent. Specifically, Art+Cook’s importing of its Cook Works Jar & Bottle
15
Opener (Model CSC789) into the United States and offering for sale and selling its Cook Works Jar & Bottle
16
Opener (Model CSC789) directly infringes the ’612 Patent. Further, by offering for sale, selling, importing,
17
marketing, supporting and advertising said jar opener, Art+Cook contributed to the infringement of the '612 Patent
18
by its customers (retailers). Art+Cook, through its counsel, has admitted and acknowledged infringement of
19
the ’612 Patent.
20
17. As a result of Art+Cook’s acts of infringement and contributory infringement, Evriholder has suffered
21
damages in an amount to be proven at trial.
22
18. Pursuant to 35 U.S.C. § 289, Evriholder is entitled to Art+Cook’s total profit for selling jar openers
23
employing the design covered in the ’612 Patent.
24

25

26

27

28
Page 3 of 4
 Case 1:18-cv-01788 Document 1 Filed 03/23/18 Page 4 of 4 PageID #: 4

1 PRAYER FOR RELIEF

2 WHEREFORE, Evriholder prays that this Court enter judgment against Defendants as follows:

3 A. An injunction prohibiting Art+Cook from selling and offering to sell jar openers claimed in the ’612 Patent.

4 B. An accounting for, and an award of, damages in an amount to be determined, but no less than all of

5 Art+Cook’s profit from the sale of the infringing jar openers;

6 C. Pre- and post-judgment interest and costs;

7 D. Attorneys’ fees in that this is an extraordinary case inasmuch as Art+Cook has conceded infringement by

8 ceasing the importation of its Cook Works Jar & Bottle Opener (Model CSC789) into the United States, but

9 has refused to pay damages and has forced Plaintiff to initiate this action; and,

10 E. Such other and further relief as this Court deems proper under all of the circumstances

11 JURY DEMAND

12 Pursuant to Fed. R. Civ. P. 38(b), Evriholder demands a trial by jury for all claims so triable.

13

14 Respectfully submitted,

15 Dated: March 20, 2018 LOUIS C. PAUL & ASSOCIATES, PLLC

16

17

18

19 By:
20 James D. Fornari, EDNY Bar Code JF3433
299 Park Avenue, 6 Floor
th

21 New York, NY 10171

Telephone and Facsimile: 212-223-8200
22 E-mail: docketing@paulipgroup.com
23 Counsel for plaintiff
24

25

26

27

28
Page 4 of 4
 Case 1:18-cv-01788 Document 1-1 Filed 03/23/18 Page 1 of 17 PageID #: 5

Exhibit A

Case 1:18-cv-01788 Document 1-1 Filed 03/23/18 Page 2 of 17 PageID #: 6
Case 1:18-cv-01788 Document 1-1 Filed 03/23/18 Page 3 of 17 PageID #: 7
Case 1:18-cv-01788 Document 1-1 Filed 03/23/18 Page 4 of 17 PageID #: 8
Case 1:18-cv-01788 Document 1-1 Filed 03/23/18 Page 5 of 17 PageID #: 9
 Case 1:18-cv-01788 Document 1-1 Filed 03/23/18 Page 6 of 17 PageID #: 10

Exhibit B

Case 1:18-cv-01788 Document 1-1 Filed 03/23/18 Page 7 of 17 PageID #: 11
Case 1:18-cv-01788 Document 1-1 Filed 03/23/18 Page 8 of 17 PageID #: 12
Case 1:18-cv-01788 Document 1-1 Filed 03/23/18 Page 9 of 17 PageID #: 13
Case 1:18-cv-01788 Document 1-1 Filed 03/23/18 Page 10 of 17 PageID #: 14
Case 1:18-cv-01788 Document 1-1 Filed 03/23/18 Page 11 of 17 PageID #: 15
Case 1:18-cv-01788 Document 1-1 Filed 03/23/18 Page 12 of 17 PageID #: 16
Case 1:18-cv-01788 Document 1-1 Filed 03/23/18 Page 13 of 17 PageID #: 17
Case 1:18-cv-01788 Document 1-1 Filed 03/23/18 Page 14 of 17 PageID #: 18
Case 1:18-cv-01788 Document 1-1 Filed 03/23/18 Page 15 of 17 PageID #: 19
Case 1:18-cv-01788 Document 1-1 Filed 03/23/18 Page 16 of 17 PageID #: 20

Exhibit C

Case 1:18-cv-01788 Document 1-1 Filed 03/23/18 Page 17 of 17 PageID #: 21