Cozy Comfort Company v. The Hoodex LTD - Complaint

Case 2:21-cv-00967-DMF Document 1 Filed 06/03/21 Page 1 of 29
1 Gregory P. Sitrick
Arizona Bar No. 028756
2 gsitrick@messner.com
MESSNER REEVES LLP
3 1440 E. Missouri Ave., Suite C100
Phoenix, Arizona 85014
4 Telephone: (602) 457-5059
Facsimile: (303) 623-0552
5
Attorneys for Plaintiff Cozy Comfort
6 Company LLC
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UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Cozy Comfort Company LLC, Case No. _______________________
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Plaintiff, COMPLAINT FOR PATENT
12 INFRINGEMENT, TRADE DRESS
v. INFRINGEMENT AND UNFAIR
13 COMPETITION
The Hoodex Ltd and Challenge
14 Warehousing Inc,
15 Defendants. Demand for Jury Trial

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Plaintiff Cozy Comfort Company LLC (“Cozy Comfort” or “Plaintiff”), by
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and through its attorneys, for its Complaint against defendants The Hoodex
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(“Hoodex”) and Challenge Warehousing, Inc. (“CWI”) (collectively the
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“Defendants”) alleges as follows:
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INTRODUCTION
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1. This action arises from Defendants’ willful and deliberate copying of
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Plaintiff’s patented product design for a hooded wearable blanket and Defendants’
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subsequent importation and distribution of this infringing product(s) within the
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United States. Defendants’ direct imitation of Plaintiff’s product sought to cash in
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on the designs, technology and global market created by Plaintiff in hooded
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wearable blankets. However, the marketing, importation, and sale of such
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COMPLAINT AND DEMAND FOR JURY TRIAL
1 product(s) within the United States infringes upon the intellectual property rights of
2 Plaintiff. This illegal practice will continue unless, and until, the Court puts an end
3 to it.
4 2. By this action Plaintiff seeks permanent injunctive relief, money

5 damages, exemplary damages and attorneys’ fees arising from Defendants’: (i)
6 patent infringement under the Patent Act, 35 U.S.C. § 271; (ii) federal trade dress
7 infringement and unfair competition under the Lanham Act; (iii) common law trade
8 dress infringement and unfair competition under Arizona law; and (iv) unjust
9 enrichment.
10 PARTIES
11 3. Plaintiff is a limited liability company formed under the laws of
12 Arizona with a principal place of business located in Scottsdale, Arizona.
13 4. Upon information and belief, Defendant Hoodex is a foreign company

14 organized in London, the United Kingdom and has its principal place of business in
15 England.
16 5. Upon information and belief, Defendant CWI is a company organized

17 under the laws of Florida with a principal place of business in Davie, Florida.
18 6. Plaintiff is the owner of intellectual property in relation to its flagship

19 product, a hooded wearable blanket known as “THE COMFY”, as well as other
20 related and associated designs, products, and services.
21 JURISDICTION AND VENUE

22 7. This is an action for infringement against Defendants brought under the
23 Patent Act, 35 U.S.C. § 271 based upon Defendants’ unauthorized commercial
24 manufacture, use, importation, offer for sale and sale of wearable blankets which
25 infringes upon United States (“U.S.”) Patent Numbers D859,788 and D905,380.
26 Plaintiff also alleges infringement of trade dress protections afforded under the
27 Lanham Act, 15 U.S.C. §1051, et seq. and Unfair Competition under federal and
28 common law and afforded by the laws of the State of Arizona.
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1 8. This Court holds original jurisdiction over the subject matter of this
2 action pursuant to 28 U.S.C. §1331 (federal question jurisdiction); 28 U.S.C.
3 §1338(b) (state claim of unfair competition joined with substantial and related
4 federal claim under trademark laws); 28 U.S.C. § 1367 (supplemental jurisdiction);
5 and the doctrines of ancillary and pendent jurisdiction.
6 9. This court has personal jurisdiction over Defendants because

7 Defendants conduct business throughout the United States, including within the
8 state of Arizona, and have committed in this District the acts of patent and trade
9 dress infringement, and federal and state unfair competition, which have given rise
10 to this action.
11 10. Venue is proper in this District as Defendant Hoodex is a foreign

12 company and Defendants have advertised and derived revenue from sales of
13 products to citizens within this District and have engaged in systematic and
14 continuous business contacts within this State. Defendants have had and continue to
15 have significant contact with the state of Arizona through their U.S. based websites,
16 through U.S. based sales, and distribution of products throughout the U.S., and have
17 purposefully availed themselves of Arizona’s laws.
18 BACKGROUND
19 11. THE COMFY was created by Brian Speciale and Michael Speciale
20 (collectively “the Speciales”) in April 2017. The Speciales are entrepreneurs who
21 are citizens of the State of Arizona.
22 12. THE COMFY is an oversized wearable item designed for cozy warmth.
23 THE COMFY features a hood, cuffs, and large arm coverings, and covers the
24 majority of a person’s upper and lower body. THE COMFY is known for its high-
25 quality materials and construction, featuring a layer of fleece microfiber on one side
26 and thick sherpa-type material on the opposite layer. THE COMFY also features a
27 large front pocket designed to allow its wearer to insert his or her hands for comfort,
28 storage, or warmth. A logo of THE COMFY is featured on the lower left side
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1 portion of this pocket. The product is sold in a variety of colors. A sample image of
2 the product appears below:
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13. In April 2017, to facilitate the development and distribution of THE
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COMFY, as well as the growth of the business developing around the product, the
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Speciales organized Plaintiff, an Arizona limited liability company.
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14. In May 2017, to solicit funds for its expanding business, Plaintiff,
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through the Speciales, auditioned for the nationally broadcast television show, Shark
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Tank. Shark Tank is a significantly popular and well-known reality show in which
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businesses and/or product owners showcase their ideas to a panel of investors,
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referred to on the show as “sharks.” The show is broadcast in the U.S. on the ABC
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network, is featured on the cable network CNBC, and is available on demand on
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Hulu and other streaming platforms. The show has won multiple Emmys for
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Outstanding Structured Reality Program. The format is significantly popular, with
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1 licensed versions of the show produced and broadcast in many countries around the
2 world, including Canada, Mexico, China, New Zealand, and Australia.
3 15. After several rounds of successful auditions with the producers of

4 Shark Tank, the Speciales were approved to appear on the program to pitch and
5 feature THE COMFY on the 2017 end-of-the-year, holiday-themed episode of
6 Shark Tank.
7 16. On September 13, 2017, Plaintiff, as the assigned owner of the rights to
8 the design of THE COMFY, filed a patent application related to its designs, United
9 States Patent and Trademark Office (“USPTO”) Application No. 29/617,421. Two
10 years later, on September 17, 2019, that application matured into U.S. Patent No.
11 D859,788 (the “’788 Patent”). A true and correct copy of the ‘788 Patent is attached
12 hereto as Exhibit 1 and incorporated by reference.
13 17. On December 3, 2017, the episode of Shark Tank featuring THE

14 COMFY premiered in the U.S. On the episode, the Speciales discussed the potential
15 success of a business surrounding THE COMFY.
16 18. On the episode of Shark Tank, the Speciales displayed and discussed
17 several attributes of THE COMFY. This included the shape of the product, the
18 materials used in its construction (fleece and sherpa), the attached hood, the front
19 pocket, and the fit of THE COMFY over the arms and body.
20 19. On the episode, several “shark” panelists displayed significant

21 enthusiasm regarding the product. On air, two of the sharks proposed investing into
22 Plaintiff. Ultimately, Plaintiff agreed to a proposal from one of the show’s sharks to
23 invest into the business.
24 20. Immediately following the airing of the 2017 Shark Tank episode
25 featuring THE COMFY, interest in and exposure to THE COMFY skyrocketed.
26 The product was not only featured on a popular, nationally broadcast television
27 program, but there was substantial exposure of THE COMFY through initial orders,
28 positive online reviews, online video clips and social media postings.
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1 21. Plaintiff developed several other designs in addition to its original THE
2 COMFY. Plaintiff owns multiple U.S. Patents relating to its designs, as well as
3 multiple U.S. Trademark registrations and other common-law intellectual property
4 assets.
5 22. Plaintiff established and maintained a company website located at

6 https://thecomfy.com/, which since 2017 has displayed Plaintiff’s products, and
7 makes its products available for sale in the U.S. and throughout the world through
8 Amazon and other online and brick-and-mortar retailers.
9 23. Through its activities, Plaintiff established itself as an innovator and

10 leader in the wearable blankets market. In response to the success of THE COMFY,
11 online retailer Amazon created the new category of products on its platform(s)
12 labeled Wearable Blanket.
13 24. Cozy Comfort and its resellers have expended millions of dollars since
14 2017, advertising and promoting THE COMFY using Cozy Comfort’s Trademarks
15 and Trade Dress in the United States. Such advertising and promotion have been
16 featured in print and electronic media, over the Internet, and in a variety of other
17 media. THE COMFY has also been advertised, promoted, and sold by and through
18 nationally recognized retail establishments such as Costco, Bed Bath & Beyond,
19 QVC, Sam’s Club, Kohl’s, Target, and Kroger.
20 25. In addition to Shark Tank, THE COMFY featuring Cozy Comfort’s

21 Trade Dress had also been seen in streaming videos and numerous other television
22 programs viewed by many millions of Americans, such as Good Morning America.
23 THE COMFY has received extensive unsolicited media coverage and public
24 exposure from celebrities such as Lizzo, Jamie Lynn Spears, Selena Gomez, Cindy
25 Crawford, Kim Kardashian, and Kylie Jenner. In January of 2018, Plaintiff
26 produced and posted a video on THE COMFY that has received over 100 Million
27 views.
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1 26. Cozy Comfort has achieved hundreds of millions of dollars of sales of

2 THE COMFY using Cozy Comfort’s Trademarks and Trade Dress. THE COMFY
3 is currently the best-selling wearable blanket in the United States.
4 27. THE COMFY brand and designs are recognized in the U.S. and
5 worldwide as the industry standard in hooded wearable blankets. The style of THE
6 COMFY has acquired distinctiveness within the market based upon worldwide sales
7 and exposure. Cozy Comfort’s Trade Dress has acquired distinctiveness by virtue
8 of extensive sales and adverting of THE COMFY featuring Cozy Comfort’s Trade
9 Dress, extensive consumer recognition of the Cozy Comfort’s Trade Dress, and
10 association of Cozy Comfort’s Trade Dress with THE COMFY.
11 28. Plaintiff’s ‘788 Patent protects “The ornamental design for an enlarged
12 over-garment with an elevated marsupial pocket, as shown and described.” The
13 issued patent features ten (10) Figures. Figure 1 of the ‘788 Patent illustrates a front
14 view of the invention as shown below:
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27 29. Figure 4 of the ‘788 Patent illustrates the invention without a person
28 wearing it:
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12 (Rotated clockwise by 90 degrees)

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30. Plaintiff is also the owner of U.S. Patent No. D905,380 (the “’380
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Patent”) entitled “Whole body blanket” issued December 22, 2020. A true and
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correct copy of this patent is attached hereto as Exhibit 2 and incorporated by
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reference.
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31. Figure 1 of the ‘380 Patent illustrates the invention with dotted lines
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indicating optional features.
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(Rotated clockwise by 90 degrees)
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12 32. Upon information and belief, Defendant Hoodex was organized as a
13 company in England in 2020. The copyright on Hoodex’s website is 2020.
14 Hoodex’s Facebook page was not created until January 2021. Hoodex’s Instagram
15 account was not created until April 2021.
16 33. Upon information and belief, Defendant Hoodex is the owner,
17 distributor and/or manufacturer of the product known as “THE HOODEX”, a
18 product that Defendant Hoodex describes as “wearable blanket, giant ultra soft one
19 size hoodie.” The product is sold in a variety of colors. A sample image of THE
20 HOODEX, taken from one if its websites, appears below:
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11 34. Upon information and belief, Defendant Hoodex, nor any of its direct
12 affiliates or parent companies, sold wearable blankets or any similar wearable items,
13 prior to 2020.
14 35. Upon information and belief, Defendant Hoodex began displaying and
15 offering THE HOODEX for sale from its company’s website, https://the-
16 hoodex.com, in 2020. In describing THE HOODEX, Defendant Hoodex’s website
17 stated that “it is made from premium ultra soft materials. Soft sherpa fabric keeps
18 you warm inside, and ultra soft fleece is outside of the product.”
19 36. Upon information and belief, Defendant Hoodex initially shipped THE
20 HOODEX only to customers within England. However, through various means,
21 including through agreement with, and use of, the services of Defendant CWI,
22 Defendants began importing and/or shipping THE HOODEX to customers in other
23 regions throughout the world, including the United States.
24 37. Defendant Hoodex also sells THE HOODEX to U.S.-based customers

25 through a storefront maintained on the U.S.-based Amazon.com platform. Products
26 displayed and listed for sale are intended to be shown to U.S.-based customers for
27 direct shipment of THE HOODEX to addresses located within the United States.
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1 38. THE HOODEX is sold in a variety of colors and decorative designs.

2 However, the construction and design of THE HOODEX is substantially the same
3 as those described in the ‘788 Patent, the ‘380 Patent, and within the trade dress of
4 THE COMFY.
5 39. Defendant Hoodex advertises THE HOODEX as being “a wearable

6 blanket, giant ultra soft one size hoodie.”
7 40. THE HOODEX is substantially the same product as THE COMFY. A

8 side-by-side comparison between a display found on Defendant’s website, the-
9 hoodex.com, and Figure 1 from the ‘788 Patent exhibit the overwhelming sameness:
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20 41. Additionally, promotional materials featured on social media accounts

21 controlled by Defendant Hoodex and/or its related entities further display the
22 sameness of THE HOODEX to the intellectual property of Plaintiff. In the
23 comparison below, the image on the left appears on Defendant Hoodex’s Instagram
24 page, https://instagram.com/thehoodex?utm_medium=copy_link, and the image on
25 the right is Figure 10 from the ‘788 Patent.
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42. Images from Defendant Hoodex’s website further display the sameness
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of THE HOODEX to the intellectual property of Plaintiff. In the comparison below,
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the image on the left appears on Defendant’s webpage at https://the-
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hoodex.co/collections/catalog/products/rabbit-hoodex, and the image on the right is
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Figure 10 from the ‘788 Patent.
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43. Plaintiff purchased sample products from Defendant Hoodex’s
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storefront named “The Hoodex” on the U.S. version of Amazon.com, and from
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Defendant Hoodex’s website, the-hoodex.com, to examine the similarities between
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THE HOODEX and the intellectual property owned by Plaintiff. Comparison of
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photographs of a sample product purchased, and Figures 5 and 6 from the ‘380
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Patent shows the following:
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44. Upon information and belief, the packaging from the sample product
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purchased by Plaintiff bore markings that the product was shipped by Defendant
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CWI.
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45. Defendant CWI maintains a website for its services at
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https://www.challengewarehousing.com. Defendant CWI advertises itself as a
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“tailored 3PL solutions to international and domestic customers” that provides
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“intermodal shipping options, secure warehousing, expedited paperwork, and on-
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time delivery [that] adds up to convenience and profitability for your company.”
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46. On the CWI website, Defendant CWI describes the general process by
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which it services its customers at http://challengewarehousing.com/our-solutions.
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Based upon information and belief, CWI enters into agreements with foreign-based
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companies that are seeking shipping solutions for customers located in the United
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States. These foreign companies list products for sale on the Internet. The foreign
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company then ships the products from overseas to CWI, located within the United
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States, based upon negotiated rates. After receiving such products from overseas,
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CWI individually sorts, picks, packs, and ships the products to U.S. addresses.
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47. Upon information and belief, CWI has direct access to information
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from its foreign-based clients’ online selling accounts and gathers information
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regarding each sale made. Upon information and belief, Defendant CWI, and
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Defendant Hoodex have an agreement through which Defendant CWI provides
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fulfillment services to U.S.-based customers who make purchases of THE
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HOODEX through Amazon.com, https://the-hoodex.com, and/or other online
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platforms.
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48. Through vast sales, promotion, and publicity surrounding THE
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COMFY, Plaintiff has acquired distinctiveness in the look and feel of THE
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COMFY. Plaintiff is an innovator in the wearable blanket industry, as recognized
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by the USPTO through the issuance of multiple patents, as well as by its
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performance within the market. Plaintiff has expended substantial sums in
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marketing and advertising its products and enjoy a substantial share in the market
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for wearable blankets in the United States.
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49. Due to the extensive marketing, promotion, and sales of THE COMFY,
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customers recognize Cozy Comfort’s Trade Dress of an oversized wearable blanket,
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that has large arm coverings, a large hood, a sherpa lining, elastic wrist cuffs and a
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large front pocket, and associate such features to signify the product is a genuine
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Cozy Comfort’s THE COMFY.
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50. The combination of elements comprising Cozy Comfort’s Trade Dress
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is non-functional as each feature could be accomplished with different design
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choices, without affecting cost or quality, to convey a different product that does not
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embody the same, or confusingly similar, features that customers have come to
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recognize as THE COMFY.
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51. The Cozy Comfort Trademarks and Trade Dress are famous for
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wearable blankets in the United States.
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52. Plaintiff markets these features such that customers recognize such
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features as THE COMFY Trade Dress. For example, on the marketing shown
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below, Plaintiff promotes THE COMFY as: “A Wearable Blanket” with “A Giant
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Hood,” “Large Arm Coverings,” “Seamless Rib-Knit Cuffs,” “Giant Marsupial
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Pocket,” and “Luscious Sherpa Lining.”
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17 53. Plaintiff also markets these features on the packaging of THE COMFY
18 such that customers recognize THE COMFY Trade Dress. For example, on the
19 packaging shown below, Plaintiff promotes these features and highlights them with
20 text such as “Oversized Everything, large enough to pull legs/arms in,” “Giant
21 Pocket,” “Portable Warmth,” “Huge Hood,” and “Luxurious Material so soft, you’ll
22 never want to take it off.”
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54. THE COMFY is sold in over 100 countries and through recognized
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retail establishments such as Costco, Bed Bath & Beyond, QVC, Sam’s Club,
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Kohl’s, Target, and Kroger. As a result of this exposure, consumers have come to
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recognize Cozy Comfort’s Trade Dress features through the promotion, sales, and
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publicity of THE COMFY.
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55. Consumers have grown to recognize THE COMFY and Plaintiff’s
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related products as the industry standard for wearable blankets and identify the
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unique shape of Plaintiff’s hooded wearable blankets as coming from a distinct
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source.
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56. Plaintiff’s Trade Dress is readily recognizable to consumers. Plaintiff
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has received, and continues to receive, complaints from confused consumers who
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purchase knock off goods that copy Plaintiff’s Trade Dress with the expectation that
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they are buying a genuine THE COMFY.
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57. Defendant Hoodex did not enter the market until it had seen the success
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of THE COMFY. As a result, Defendants and others were quick to enter the market
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to flood the market space. Although Plaintiff developed and invested in multiple
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intellectual property assets protecting THE COMFY, those assets took time to
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mature from applications into published registrations and issued protectable rights.
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Plaintiff is now in the position of having to enforce its rights against a number of
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infringers. THE COMFY brand, and recognized trade dress, is so successful it is
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now being counterfeited by pirates trying to capitalize on the goodwill and
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reputation that Cozy Comfort created.
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58. Defendant Hoodex has knowingly and willfully sold products which
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directly replicate the intellectual property of Plaintiff. Defendant Hoodex has
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intentionally marketed, offered for sale, imported, used, and sold to U.S. based
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customers THE HOODEX in violation of Plaintiff’s rights. Tellingly, the label
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inside THE HOODEX reads “so comfy…designed in the USA.”
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59. THE COMFY predates the introduction of THE HOODEX to the
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market and the formation of Defendant Hoodex as an entity. THE COMFY is the
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worldwide industry standard for hooded wearable blankets with millions of units
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sold per year, including sales to England. Defendant Hoodex has knowingly and
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willfully sold products which directly replicate the intellectual property of Plaintiff.
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Under the direction of Defendant Hoodex, such products have been intentionally
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marketed, offered for sale, imported, and sold to U.S. based customers, in violation
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of Plaintiff’s rights. Defendant CWI has imported, used, and distributed such
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products within the U.S.
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60. In addition, the types of materials used to construct THE HOODEX
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and THE COMFY are substantially the same. THE COMFY is constituted of a
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fleece layer on the outside and a sherpa layer on the inside. THE HOODEX is
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constituted of a fleece layer on the outside and a sherpa layer on the inside. Both
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feature an oversized front pouch, hood, and elastic cuffs.
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61. A comparison below of advertising photographs from Amazon.com of
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THE COMFY shown on the top, and THE HOODEX shown on the bottom,
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highlights the substantial similarity between the products.
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62. Defendant Hoodex has knowingly and intentionally replicated the look
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and feel of THE COMFY to sell products from England. However, subsequent to
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the expansion of the market within the United States and worldwide created directly
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by Plaintiff, THE HOODEX is now sold, used, imported, and distributed within the
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United States in association with Defendant CWI in violation of Plaintiff’s U.S.
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intellectual property rights.
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63. On April 2, 2021, Plaintiff provided notice to Defendant Hoodex of its
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infringing activities via a letter submitted to Defendant Hoodex via email (“April 2nd
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Letter”). The letter particularly highlighted Defendants’ infringement of the ‘788
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Patent, the ‘380 Patent, and Plaintiff’s Trade Dress.
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64. Hoodex did not respond to the April 2nd Letter.
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65. On April 29, 2021, Plaintiff submitted an additional letter to Defendant
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Hoodex via email (“April 29th Letter”). This letter reiterated Plaintiff’s demands to
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cease and desist the infringing activities.
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66. Defendant Hoodex did not respond to the April 29th Letter.
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67. Defendants continue to use, offer for sale, sell and/or import goods
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infringing upon the intellectual property rights of Plaintiff, despite explicit demands
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of Plaintiff to stop.
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68. Upon information and belief, Defendant Hoodex has known of the
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existence of THE COMFY for years, likely since Defendant’s inception as a
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business. At the absolute latest, by April 2, 2021, Defendant Hoodex was aware of
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the existence of Plaintiff’s pre-existing U.S. patents and other intellectual property
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rights. Notwithstanding, Defendants have been willful in their disregard of
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Plaintiff’s intellectual property rights without any reasonable basis for believing that
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they had the right to sell or import THE HOODEX within the United States.
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FIRST CLAIM FOR RELIEF
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(Infringement of The ‘788 Patent – 35 U.S.C. §271)
17
18 69. Plaintiff hereby incorporates and realleges paragraphs 1 through 68 as

19 if fully set forth herein.
20 70. Defendants, without authorization from Plaintiff, have used, offered for
21 sale, sold, and/or imported into the U.S., including within this District, a hooded
22 wearable blanket marketed as THE HOODEX, having a design that infringes the
23 ‘788 Patent.
24 71. By the foregoing acts, Defendants have directly infringed, infringed

25 under the doctrine of equivalents, contributorily infringed, and/or induced
26 infringement of the ‘788 Patent in violation of 35 U.S.C. § 271.
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72. Upon information and belief, Defendants’ infringement has, and
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continues to be, knowing, intentional and willful.
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73. Defendants’ acts of infringement of the ‘788 Patent has caused, and
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will continue to cause, Plaintiff damages for which Plaintiff is entitled to
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compensation pursuant to 35 U.S.C. § 284 and/or 35 U.S.C. § 289.
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74. Upon information and belief, Defendants have gained profits by virtue
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of their infringement of the ‘788 Patent.
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will continue to cause, Plaintiff immediate and irreparable harm unless such
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infringing activities are enjoined by this Court pursuant to 35 U.S.C. § 283 as
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Plaintiff has no adequate remedy at law.
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76. The circumstances surrounding Defendants’ infringement are
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exceptional and, therefore, Plaintiff is entitled to an award of attorney’s fees
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pursuant to 35 U.S.C. § 285.
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SECOND CLAIM FOR RELIEF
16
(Infringement of The ‘380 Patent – 35 U.S.C. §271)
17

20 78. Defendants, without authorization from Plaintiff, have used, offered for
21 sale, sold, and/or imported into the U.S., including within this District, a hooded
22 wearable blanket marketed as THE HOODEX, having a design that infringes the
23 ‘380 Patent.
24 79. By the foregoing acts, Defendants have directly infringed, infringed

25 under the doctrine of equivalents, contributorily infringed, and/or induced
26 infringement of the ‘380 Patent in violation of 35 U.S.C. § 271.
27 80. Upon information and belief, Defendants’ infringement has, and

28 continues to be, knowing, intentional and willful.
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will continue to cause, Plaintiff damages for which Plaintiff is entitled to
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compensation pursuant to 35 U.S.C. § 284 and/or 35 U.S.C. § 289.
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82. Upon information and belief, Defendants have gained profits by virtue
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of their infringement of the ‘380 Patent.
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will continue to cause, Plaintiff immediate and irreparable harm unless such
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infringing activities are enjoined by this Court pursuant to 35 U.S.C. § 283 as
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Plaintiff has no adequate remedy at law.
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84. The circumstances surrounding Defendants’ infringement are
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exceptional and, therefore, Plaintiff is entitled to an award of attorney’s fees
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pursuant to 35 U.S.C. § 285.
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THIRD CLAIM FOR RELIEF
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(Federal Trade Dress Infringement and Unfair Competition – 15 U.S.C.
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§1125(a))
16

19 86. Defendants make, import, distribute, use, offer to sell, and sell in the
20 U.S. products that directly infringe Plaintiff’s Trade Dress in violation of § 43(a) of
21 the Lanham Act, 15 U.S.C. § 1125(a). Plaintiff has actively marketed, promoted,
22 and sold continuously THE COMFY Trade Dress such that it has acquired
23 secondary meaning within the relevant market and among the U.S. public.
24 Defendants have used THE COMFY Trade Dress without the authorization of
25 Plaintiff and continue to trade off the goodwill created and maintained by Plaintiff
26 in THE COMFY Trade Dress.
27 87. Defendants’ unauthorized use of Plaintiff’s Trade Dress is likely to

28 deceive consumers as to the origin, source, sponsorship, or affiliation of Defendants’
{05224478 / 1} 24
1
goods and is likely to cause consumers to believe, contrary to fact, that Defendants’
2
goods are sold, authorized, endorsed, or sponsored by Plaintiff, or that Defendants
3
are in some way affiliated with or sponsored by Plaintiff.
4
88. Defendants’ unauthorized use in commerce of Plaintiff’s Trade Dress
5
as alleged herein constitutes use of a false designation of origin and misleading
6
description and representation of fact.
7
89. The foregoing use in commerce by Defendants of Plaintiff’s Trade
8
Dress has caused and/or is likely to cause confusion, or mistake, or to deceive
9
consumers as to the affiliation, connection, or association of Defendants with
10
Plaintiff, or as to the origin, sponsorship, or approval of Defendant’s goods, or
11
commercial activities by Plaintiff.
12
90. Defendants’ acts are willful and are intended to cause confusion,
13
mistake, or deception as to the affiliation, connection, or association of Defendants
14
with Plaintiff.
15
91. Defendants’ infringement of Plaintiff’s Trade Dress as aforesaid has
16
caused and is likely to continue to cause substantial injury to the public and to
17
Plaintiff, and Plaintiff is entitled to injunctive relief and its attorneys’ fees and costs
18
under §§ 32, 34, 35 and 36 of the United States Trademark Act, 15 U.S.C. §§ 1114,
19
1116, 1117 and 1118.
20
92. Defendants’ conduct as alleged herein constitutes unfair competition in
21
violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).
22
93. Defendants’ conduct as alleged herein is causing immediate and
23
irreparable harm and injury to Plaintiff, and to its goodwill and reputation, and will
24
continue to both damage Plaintiff and confuse the public unless enjoined by this
25
court as Plaintiff has no adequate remedy at law.
26
94. Defendants have unlawfully and wrongfully derived income and profits
27
and have been unjustly enriched by the foregoing acts. Defendants’ acts have
28
{05224478 / 1} 25
1
caused, and unless enjoined will continue to cause, irreparable harm to Plaintiff for
2
which there is no adequate remedy at law.
3
95. Plaintiff is entitled to, among other relief, injunctive relief and an award
4
of actual damages, Defendants’ profits, enhanced damages and profits, reasonable
5
attorneys' fees, and costs of the action under Sections 34 and 35 of the Lanham Act,
6
15 U.S.C. §§ 1116, 1117, together with prejudgment and post-judgment interest.
7
FOURTH CLAIM FOR RELIEF
8
(Common Law Trade Dress Infringement and Unfair Competition)
9

12 97. Defendants make, import, distribute, use, offer to sell, and sell in the
13 U.S. products that directly infringe Plaintiff’s Trade Dress in violation of A.R.S.
14 §§44-1451 & 1452, et. seq. Plaintiff has actively marketed, promoted, and sold
15 continuously THE COMFY Trade Dress such that it has acquired secondary
16 meaning within the relevant market and among the U.S. public. Defendants have
17 used THE COMFY Trade Dress without the authorization of Plaintiff and continue
18 to trade off the goodwill created and maintained by Plaintiff in THE COMFY Trade
19 Dress.
20 98. By virtue of Defendants’ foregoing acts Defendants have intentionally

21 caused a likelihood of confusion among the public and have unfairly competed with
22 Plaintiff in violation of the common law of the State of Arizona and A.R.S §44-1451
23 and §44-1452.
24 99. This claim for common law unfair competition arises under the
25 common law of the State of Arizona.
26 100. The foregoing use in commerce by Defendants of Plaintiff’s Trade

27 Dress has caused and/or is likely to cause confusion, or mistake, or to deceive
28 consumers as to the affiliation, connection, or association of Defendants with
{05224478 / 1} 26
1
Plaintiff, or as to the origin, sponsorship, or approval of Defendants’ goods, or
2
commercial activities by Plaintiff.
3
101. Defendants’ acts are willful.
4
102. By reason of the foregoing, Plaintiff has sustained, and unless
5
Defendants are enjoined, will continue to sustain, injury and damage.
6
103. Defendants have unlawfully and wrongfully derived income and profits
7
and has been unjustly enriched by the foregoing acts. Defendants’ acts have caused,
8
and unless enjoined will continue to cause, irreparable harm to Plaintiff for which
9
there is no adequate remedy at law.
10
104. Plaintiff is entitled to, among other relief, injunctive relief and an award
11
of actual damages, Defendants’ profits, enhanced damages and profits, reasonable
12
attorneys' fees, and costs of the action, together with prejudgment and post-
13
judgment interest.
14
105. Because Defendants engaged in knowing, willful, and conscious
15
disregard for the rights of Plaintiff, Defendants are guilty of oppression, fraud, and
16
malice, entitling Plaintiff to an award of punitive damages.
17
FIFTH CLAIM FOR RELIEF
18
(Unjust Enrichment)
19

22 107. As a result of the conduct alleged herein, Defendants have been

23 unjustly enriched to Plaintiff’s detriment. Plaintiff therefore seeks an accounting
24 and disgorgement of all ill-gotten gains and profits resulting from Defendants’
25 inequitable activities.
26
27
28
{05224478 / 1} 27
1 DEMAND FOR JURY TRIAL

2
108. Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiff respectfully
3
demands a jury trial of all issues triable to a jury in this action.
4
PRAYER FOR RELIEF
5
WHEREFORE, Plaintiff prays for judgment against Defendants as follows:
6
A. A judgment and order adjudicating and declaring that Defendants have
7
infringed the ‘788 Patent;
8
B. A judgment and order adjudicating and declaring that Defendants have
9
infringed the ‘380 Patent;
10
C. A judgment and order adjudicating and declaring that Defendants have
11
engaged in unfair competition;
12
D. A judgment and order permanently enjoining Defendants, its
13
employees, agents, officers, directors, attorneys, successors, affiliates,
14
subsidiaries, and assigns, and all of those in active concert and
15
participation with any of the foregoing persons or entities from further
16
infringement of the ‘788 Patent, the ‘380 Patent and Plaintiff’s Trade
17
Dress;
18
E. A judgment and order that Defendants must account for and pay actual
19
damages (but no less than a reasonable royalty), to Plaintiff for
20
Defendants’ infringement of the ‘788 Patent, the ‘380 Patent and/or
21
Plaintiff’s Trade Dress;
22
F. A judgment and order awarding Plaintiff the total profits realized by
23
Defendants from their infringement of the ‘788 Patent and/or the ‘380
24
Patent pursuant to 35 U.S.C. § 289;
25
G. A judgment and order declaring Defendants have willfully infringed the
26
‘788 Patent, the ‘380 Patent and/or Plaintiff’s Trade Dress;
27
28
{05224478 / 1} 28
1 H. A judgment and order awarding Plaintiff enhanced damages up to three

2 times any amount ordered under 35 U.S.C. § 284 and the amount found
3 as actual damages for Defendants’ trade dress infringement under 15
4 U.S.C. § 1117(a);
5 I. A judgment ordering an accounting for any infringing sales not
6 presented at trial and an award by the court of additional damages for
7 any such infringing sales;
8 J. A determination that this case is exceptional under 35 U.S.C. § 285;
9 K. A determination that this case is exceptional under 15 U.S.C. § 1117;
10 L. A judgment and order awarding Plaintiff its reasonable attorneys’ fees;
11 M. A judgment and order awarding Plaintiff its costs, expenses, and
12 interest, including pre-judgment and post-judgment, as provided for by
13 35 U.S.C. § 284 and 15 U.S.C. § 1117;
14 N. A judgment and order awarding pre-judgment and post-judgment
15 interest on each and every monetary award; and
16 O. Granting Plaintiff any such other and further relief as this Court deems
17 just and proper, or that Plaintiff may be entitled to as a matter of law or
18 equity.
19 DATED: June 2, 2021 MESSNER REEVES LLP
20
21
22 /s/ Gregory P. Sitrick

Gregory P. Sitrick
23
Attorneys for Plaintiff Cozy Comfort
24 Company LLC
25
26
27
28
{05224478 / 1} 29
Case 2:21-cv-00967-DMF Document 1-1 Filed 06/03/21 Page 1 of 11
EXHIBIT 1
EXHIBIT 2
6/2/2021 Case 2:21-cv-00967-DMF Document 1-3 Filed 06/03/21 Page 1 of 2
https://www.azd.uscourts.gov/cgi-bin/generate_civil_js44.pl
UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA
Civil Cover Sheet

This automated JS-44 conforms generally to the manual JS-44 approved by the Judicial Conference of the United States in September
1974. The data is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. The information contained
herein neither replaces nor supplements the filing and service of pleadings or other papers as required by law. This form is authorized for
use only in the District of Arizona.
The completed cover sheet must be printed directly to PDF and filed as an attachment to the
Complaint or Notice of Removal.
The Hoodex Ltd ; Challenge

Plaintiff(s): Cozy Comfort Company LLC Defendant(s):
Warehousing Inc
County of Residence: Maricopa County of Residence: Outside the State of Arizona
County Where Claim For Relief Arose: Maricopa
Plaintiff's Atty(s): Defendant's Atty(s):

Gregory P. Sitrick
MESSNER REEVES LLP
1440 E. Missouri Avenue, Suite C100
Phoenix, Arizona 85014
(602) 457-5059
II. Basis of Jurisdiction: 3. Federal Question (U.S. not a party)
III. Citizenship of Principal

Parties (Diversity Cases Only)
Plaintiff:- 4 AZ corp or Principal place of Bus. in AZ
Defendant:- 5 Non AZ corp and Principal place of Business outside AZ
IV. Origin : 1. Original Proceeding
V. Nature of Suit: 830 Patent
VI.Cause of Action: 35 U.S.C. Section 271 - Patent Infringement
VII. Requested in Complaint

Class Action: No
Dollar Demand:
Jury Demand: Yes
VIII. This case is not related to another case.
Signature: /s/ Gregory P. Sitrick

https://www.azd.uscourts.gov/cgi-bin/generate_civil_js44.pl 1/2
6/2/2021 Case 2:21-cv-00967-DMF Document 1-3 Filed 06/03/21 Page 2 of 2
https://www.azd.uscourts.gov/cgi-bin/generate_civil_js44.pl
Date: 6/3/21
If any of this information is incorrect, please go back to the Civil Cover Sheet Input form using the Back button in your browser
and change it. Once correct, save this form as a PDF and include it as an attachment to your case opening documents.
Revised: 01/2014
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Cozy Comfort Company v. The Hoodex LTD - Complaint

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Case 2:21-cv-00967-DMF Document 1 Filed 06/03/21 Page 1 of 29

15 Defendants. Demand for Jury Trial

4 2. By this action Plaintiff seeks permanent injunctive relief, money

13 4. Upon information and belief, Defendant Hoodex is a foreign company

16 5. Upon information and belief, Defendant CWI is a company organized

18 6. Plaintiff is the owner of intellectual property in relation to its flagship

20 related and associated designs, products, and services.

21 JURISDICTION AND VENUE

28 common law and afforded by the laws of the State of Arizona.

4 federal claim under trademark laws); 28 U.S.C. § 1367 (supplemental jurisdiction);

5 and the doctrines of ancillary and pendent jurisdiction.

6 9. This court has personal jurisdiction over Defendants because

11 10. Venue is proper in this District as Defendant Hoodex is a foreign

17 purposefully availed themselves of Arizona’s laws.

21 are citizens of the State of Arizona.

2 the product appears below:

2 world, including Canada, Mexico, China, New Zealand, and Australia.

3 15. After several rounds of successful auditions with the producers of

5 feature THE COMFY on the 2017 end-of-the-year, holiday-themed episode of

12 hereto as Exhibit 1 and incorporated by reference.

13 17. On December 3, 2017, the episode of Shark Tank featuring THE

15 success of a business surrounding THE COMFY.

20 19. On the episode, several “shark” panelists displayed significant

23 invest into the business.

3 multiple U.S. Trademark registrations and other common-law intellectual property

5 22. Plaintiff established and maintained a company website located at

8 Amazon and other online and brick-and-mortar retailers.

9 23. Through its activities, Plaintiff established itself as an innovator and

12 labeled Wearable Blanket.

19 QVC, Sam’s Club, Kohl’s, Target, and Kroger.

20 25. In addition to Shark Tank, THE COMFY featuring Cozy Comfort’s

22 programs viewed by many millions of Americans, such as Good Morning America.

25 Crawford, Kim Kardashian, and Kylie Jenner. In January of 2018, Plaintiff

1 26. Cozy Comfort has achieved hundreds of millions of dollars of sales of

3 is currently the best-selling wearable blanket in the United States.

10 association of Cozy Comfort’s Trade Dress with THE COMFY.

14 view of the invention as shown below:

12 (Rotated clockwise by 90 degrees)

12 32. Upon information and belief, Defendant Hoodex was organized as a

13 company in England in 2020. The copyright on Hoodex’s website is 2020.

15 account was not created until April 2021.

16 33. Upon information and belief, Defendant Hoodex is the owner,

17 distributor and/or manufacturer of the product known as “THE HOODEX”, a

20 HOODEX, taken from one if its websites, appears below:

16 hoodex.com, in 2020. In describing THE HOODEX, Defendant Hoodex’s website

22 Defendants began importing and/or shipping THE HOODEX to customers in other

23 regions throughout the world, including the United States.

24 37. Defendant Hoodex also sells THE HOODEX to U.S.-based customers

1 38. THE HOODEX is sold in a variety of colors and decorative designs.

5 39. Defendant Hoodex advertises THE HOODEX as being “a wearable

7 40. THE HOODEX is substantially the same product as THE COMFY. A

20 41. Additionally, promotional materials featured on social media accounts

22 sameness of THE HOODEX to the intellectual property of Plaintiff. In the

24 page, https://instagram.com/thehoodex?utm_medium=copy_link, and the image on

25 the right is Figure 10 from the ‘788 Patent.

22 never want to take it off.”

18 69. Plaintiff hereby incorporates and realleges paragraphs 1 through 68 as

24 71. By the foregoing acts, Defendants have directly infringed, infringed