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Case: 5:16-cv-02702 Doc #: 1 Filed: 11/04/16 1 of 7.

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IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
SPECTRUM DIVERSIFIED DESIGNS, LLC ) CASE NO.
675 Mondial Parkway
)
Streetsboro, OH 44241,
) JUDGE
)
Plaintiff,
)
) COMPLAINT FOR PATENT
v.
) INFRINGEMENT
FAIRLY ODD TREASURES LLC
)
5390 Lippard Lane
) DEMAND FOR JURY TRIAL
Harrisburg, NC 28075,
)
)
Defendant.

Plaintiff Spectrum Diversified Designs, LLC, (Spectrum) for its Complaint against
Defendant Fairly Odd Treasures LLC (Fairly Odd Treasures), alleges as follows:
I.
1.

PRELIMINARY STATEMENT

This is an action for infringement arising under the patent laws of the United

States, Title 35, United States Code.


II.
2.

JURISDICTION AND VENUE

This Court has original jurisdiction over the subject matter of this action pursuant

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


3.

Personal jurisdiction over Fairly Odd Treasures is proper in this district because

Fairly Odd Treasures has a continuous, systematic, and substantial presence within this district
by regularly doing and soliciting business and deriving revenue from goods provided to
individuals in this district, including but not limited to selling its 35 K-Cup Coffee Pod Stand
Holder (infringing product) to consumers in this district and selling into the stream of

2863613.1

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commerce knowing such product would be sold in Ohio and this district, which acts form a
substantial part of the events giving rise to Spectrums claim.
4.

Venue is proper in this district under 28 U.S.C. 1391(b) and 1400(b).


III.

5.

PARTIES

Spectrum is a limited liability company formed under the laws of Delaware with

its principal place of business at 675 Mondial Parkway, Streetsboro, OH 44241.


6.

Upon information and belief, Fairly Odd Treasures is a limited liability company

formed under the laws of North Carolina with a principal place of business at 5390 Lippard
Lane, Harrisburg, NC 28075.
IV.
7.

FACTUAL BACKGROUND

United States Design Patent Number D656,794 (D794 patent), entitled

DRINK POD HOLDER was duly and legally issued on April 3, 2012, and names Sheldon H.
Goodman and Elizabeth A. Cho as the inventors. A true and correct copy of the D794 patent is
attached as Exhibit 1.
8.

The D794 patent claims the ornamental design for a drink pod holder.

9.

Spectrum is the owner by assignment of the entire right, title, and interest in the

D794 patent.
10.

Spectrum is engaged in the business of designing, manufacturing, and selling

products, many of which are houseware items.


11.

Spectrum sells a single cup coffee caddy, known as the ScrollTM 35-Pod Coffee

Caddy, (Scroll Caddy) that is covered by the D794 patent. Since issuance of the D794 patent,
Spectrum has marked its Scroll Caddy in compliance with 35 U.S.C. 287.

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12.

Fairly Odd Treasures has and continues to infringe the D794 patent by making,

using, selling, and offering for sale in the United States and importing into the United States
Fairly Odd Treasures infringing product shown herein.
13.

On April 24, 2016, counsel for Spectrum sent Fairly Odd Treasures a cease and

desist letter notifying Fairly Odd Treasures that it was infringing the D794 patent by selling the
infringing product, including through online retailer Amazon.
14.

Upon information and belief, Fairly Odd Treasures has known of the existence of

the D794 patent, and its acts of infringement have been willful and in disregard for the D794
patent, without any reasonable basis for believing that it had a right to engage in the infringing
conduct. Spectrum has marked its Scroll Caddy in compliance with 35 U.S.C. 287, and Fairly
Odd Treasures has had knowledge of the D794 patent since at least April 28, 2016, when it
responded to Spectrums cease and desist letter. Despite assurances that Fairly Odd Treasures
would stop selling the infringing product, Fairly Odd Treasures continues to sell the infringing
product at multiple online retailers, including its own website.
15.

Fairly Odd Treasures acts complained of herein have caused Spectrum to suffer

irreparable injury to its business.

Spectrum will continue to suffer substantial loss and

irreparable injury unless and until Fairly Odd Treasures is enjoined from its wrongful actions
complained of herein.
V.
16.

CLAIM FOR PATENT INFRINGEMENT

Spectrum repeats and re-alleges paragraphs 1 through 15 hereof, as if fully set

forth herein.
17.

Fairly Odd Treasures has been and is infringing the D794 patent by making,

using, selling, and/or offering for sale in the United States, and/or importing into the United
3

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States, including within this judicial district, coffee pod stand holders having a design that would
appear to an ordinary observer to be substantially similar to the claim of the D794 patent,
including, for example, Fairly Odd Treasures 35 K-Cup Coffee Pod Stand Holder, as shown
below, which is sold and/or offered for sale on Fairly Odd Treasures website.1
Infringing Product

18.

Spectrums Patent
U.S. Patent No. D656,794

Fairly Odd Treasures infringement has been, and continues to be knowing,

intentional, and willful.


19.

As a direct and proximate result of Fairly Odd Treasures acts of infringement,

Fairly Odd Treasures has derived and received gains, profits, and advantages in an amount that is
not presently known to Spectrum.

1 See https://fairlyoddtreasures.com/homewares-household-products/35-k-cup-coffee-pod-stand-holder-bronze.html

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20.

Fairly Odd Treasures acts of infringement of the D794 patent have caused and

will continue to cause Spectrum damages for which Spectrum is entitled to compensation
pursuant to 35 U.S.C. 284.
21.

Fairly Odd Treasures acts of infringement of the D794 patent have caused and

will continue to cause Spectrum immediate and irreparable harm unless such infringing activities
are enjoined by this Court pursuant to 35 U.S.C. 283. Spectrum has no adequate remedy at
law.
22.

This case is exceptional and, therefore, Spectrum is entitled to an award of

attorneys fees pursuant to 35 U.S.C. 285.


23.

Spectrum is entitled to Fairly Odd Treasures total profits from Fairly Odd

Treasures infringement of the D794 patent pursuant to 35 U.S.C. 289.


WHEREFORE, Spectrum requests judgment against Fairly Odd Treasures as follows:
A.

Adjudging that Fairly Odd Treasures has infringed the D794 patent in violation of

35 U.S.C. 271;
B.

Granting a preliminary and permanent injunction enjoining Fairly Odd Treasures,

its employees, agents, officers, directors, attorneys, successors, affiliates, subsidiaries, and
assigns, and all of those in active concert and participation with any of the foregoing persons or
entities from infringing the D794 patent;
C.

Ordering Fairly Odd Treasures to account and pay damages adequate to

compensate Spectrum for Fairly Odd Treasures infringement of the D794 patent, with prejudgment and post-judgment interest and costs pursuant to 35 U.S.C. 284;
D.

Ordering that Fairly Odd Treasures infringement was willful and awarding

enhanced damages up to three times the actual amount assessed pursuant to 35 U.S.C. 284;
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E.

Ordering Fairly Odd Treasures to account for all gains, profits, and advantages

derived by Fairly Odd Treasures infringement of the D794 patent in violation of 35 U.S.C.
271, and to pay Spectrum all damages suffered by Spectrum and/or Fairly Odd Treasures total
profit from such infringement pursuant to 35 U.S.C. 289;
F.

Declaring this case exceptional and awarding Spectrum its reasonable attorneys

fees pursuant to 35 U.S.C. 285; and


G.

Awarding such other and further relief as this Court deems just and proper.
Respectfully submitted,

Dated: November 4, 2016

s/Patrick Clunk
Josh Ryland (0071758)
Patrick Clunk (0083650)
Marissa Ennis (0095289)
TUCKER ELLIS LLP
950 Main Avenue
Suite 1100
Cleveland, OH 44113-7213
Telephone: 216.592.5000
Facsimile:
216.592.5009
E-mail:
josh.ryland@tuckerellis.com
patrick.clunk@tuckerellis.com
marissa.ennis@tuckerellis.com
Attorneys for Plaintiff Spectrum Diversified
Designs, LLC

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DEMAND FOR JURY TRIAL


Plaintiff Spectrum Diversified Designs, LLC, hereby demands a trial by jury on all issues
so triable.
Respectfully submitted,
Dated: November 4, 2016

s/Patrick Clunk
Josh Ryland (0071758)
Patrick Clunk (0083650)
Marissa Ennis (0095289)
Tucker Ellis LLP
950 Main Avenue
Suite 1100
Cleveland, OH 44113-7213
Tel:
216.592.5000
Fax:
216.592.5009
E-mail:
josh.ryland@tuckerellis.com
patrick.clunk@tuckerellis.com
marissa.ennis@tuckerellis.com
Attorneys for Plaintiff Spectrum Diversified
Designs, LLC

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EXHIBIT 1

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CIVIL COVER SHEET

JS 44 (Rev. 0/16)

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

Spectrum Diversified Designs, LLC

Fairly Odd Treasures LLC

(b) County of Residence of First Listed Plaintiff

Portage

County of Residence of First Listed Defendant

(EXCEPT IN U.S. PLAINTIFF CASES)


NOTE:

(c) Attorneys (Firm Name, Address, and Telephone Number)

Cabarrus County (NC)

(IN U.S. PLAINTIFF CASES ONLY)


IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

Attorneys (If Known)

Josh Ryland, Patrick Clunk, and Marissa Ennis, TUCKER ELLIS LLP
950 Main Ave., Ste. 1100, Cleveland, OH 44113-7213, 216.592.5000

II. BASIS OF JURISDICTION (Place an X in One Box Only)


u 1

U.S. Government
Plaintiff

u 3

Federal Question
(U.S. Government Not a Party)

u 2

U.S. Government
Defendant

u 4

Diversity
(Indicate Citizenship of Parties in Item III)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff


(For Diversity Cases Only)
PTF
Citizen of This State
u 1

DEF
u 1

and One Box for Defendant)


PTF
DEF
Incorporated or Principal Place
u 4
u 4
of Business In This State

Citizen of Another State

u 2

Incorporated and Principal Place


of Business In Another State

u 5

u 5

Citizen or Subject of a
Foreign Country

u 3

Foreign Nation

u 6

u 6

IV. NATURE OF SUIT (Place an X in One Box Only)


CONTRACT
u
u
u
u
u
u
u

u
u
u
u
u

TORTS

110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment
151 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excludes Veterans)
153 Recovery of Overpayment
of Veterans Benefits
160 Stockholders Suits
190 Other Contract
195 Contract Product Liability
196 Franchise

u
u
u
u
u
u
u
u
u
u

u
u
u
u
u
u

REAL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property

u
u
u
u
u
u
u

PERSONAL INJURY
310 Airplane
315 Airplane Product
Liability
320 Assault, Libel &
Slander
330 Federal Employers
Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
362 Personal Injury Medical Malpractice
CIVIL RIGHTS
440 Other Civil Rights
441 Voting
442 Employment
443 Housing/
Accommodations
445 Amer. w/Disabilities Employment
446 Amer. w/Disabilities Other
448 Education

FORFEITURE/PENALTY

PERSONAL INJURY
u 365 Personal Injury Product Liability
u 367 Health Care/
Pharmaceutical
Personal Injury
Product Liability
u 368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
u 370 Other Fraud
u 371 Truth in Lending
u 380 Other Personal
Property Damage
u 385 Property Damage
Product Liability
PRISONER PETITIONS
Habeas Corpus:
u 463 Alien Detainee
u 510 Motions to Vacate
Sentence
u 530 General
u 535 Death Penalty
Other:
u 540 Mandamus & Other
u 550 Civil Rights
u 555 Prison Condition
u 560 Civil Detainee Conditions of
Confinement

u 625 Drug Related Seizure


of Property 21 USC 881
u 690 Other

BANKRUPTCY
u 422 Appeal 28 USC 158
u 423 Withdrawal
28 USC 157
PROPERTY RIGHTS
u 820 Copyrights
u 830 Patent
u 840 Trademark

LABOR
u 710 Fair Labor Standards
Act
u 720 Labor/Management
Relations
u 740 Railway Labor Act
u 751 Family and Medical
Leave Act
u 790 Other Labor Litigation
u 791 Employee Retirement
Income Security Act

u
u
u
u
u

SOCIAL SECURITY
861 HIA (1395ff)
862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(g))

FEDERAL TAX SUITS


u 870 Taxes (U.S. Plaintiff
or Defendant)
u 871 IRSThird Party
26 USC 7609

IMMIGRATION
u 462 Naturalization Application
u 465 Other Immigration
Actions

OTHER STATUTES
u 375 False Claims Act
u 376 Qui Tam (31 USC
3729(a))
u 400 State Reapportionment
u 410 Antitrust
u 430 Banks and Banking
u 450 Commerce
u 460 Deportation
u 470 Racketeer Influenced and
Corrupt Organizations
u 480 Consumer Credit
u 490 Cable/Sat TV
u 850 Securities/Commodities/
Exchange
u 890 Other Statutory Actions
u 891 Agricultural Acts
u 893 Environmental Matters
u 895 Freedom of Information
Act
u 896 Arbitration
u 899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
u 950 Constitutionality of
State Statutes

V. ORIGIN (Place an X in One Box Only)


u 1 Original
Proceeding

u 2 Removed from
State Court

u 3

Remanded from
Appellate Court

u 4 Reinstated or
Reopened

u 5 Transferred from
Another District

u 6 Multidistrict
Litigation Transfer
(specify)
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

u 8 Multidistrict
Litigation Direct File

Title 35, United States Code

VI. CAUSE OF ACTION Brief description of cause:

Complaint for infringement of U.S. Design Patent No. D656,794

u CHECK IF THIS IS A CLASS ACTION


VII. REQUESTED IN
UNDER RULE 23, F.R.Cv.P.
COMPLAINT:
VIII. RELATED CASE(S)
(See instructions):
IF ANY
JUDGE
DATE

DEMAND $

to be determined at trial

CHECK YES only if demanded in complaint:


u Yes
u No
JURY DEMAND:

DOCKET NUMBER

SIGNATURE OF ATTORNEY OF RECORD

s/Patrick Clunk

11/04/2016
FOR OFFICE USE ONLY
RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

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UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF OHIO
I.

Civil Categories: (Please check one category only).

1.
2.
3.

General Civil
Administrative Review/Social Security
Habeas Corpus Death Penalty

*If under Title 28, 2255, name the SENTENCING JUDGE:


CASE NUMBER:

II.

RELATED OR REFILED CASES. See LR 3.1 which provides in pertinent part: "If an action is filed or removed to this Court
and assigned to a District Judge after which it is discontinued, dismissed or remanded to a State court, and
subsequently refiled, it shall be assigned to the same Judge who received the initial case assignment without regardfor
the place of holding court in which the case was refiled. Counsel or a party without counsel shall be responsible for
bringing such cases to the attention of the Court by responding to the questions included on the Civil Cover Sheet."
This action is

RELATED to another PENDING civil case. This action is

REFILED pursuant to LR 3.1.

If applicable, please indicate on page 1 in section VIII, the name of the Judge and case number.

III.

In accordance with Local Civil Rule 3.8, actions involving counties in the Eastern Division shall be filed at any of the
divisional offices therein. Actions involving counties in the Western Division shall be filed at the Toledo office. For the
purpose of determining the proper division, and for statistical reasons, the following information is requested.
ANSWER ONE PARAGRAPH ONLY. ANSWER PARAGRAPHS 1 THRU 3 IN ORDER. UPON FINDING WHICH
PARAGRAPH APPLIES TO YOUR CASE, ANSWER IT AND STOP.
(1)
Resident defendant. If the defendant resides in a county within this district, please set forth the name of such
county
COUNTY:
Corporation For the purpose of answering the above, a corporation is deemed to be a resident of that county in which
it has its principal place of business in that district.
Non-Resident defendant. If no defendant is a resident of a county in this district, please set forth the county
wherein the cause of action arose or the event complained of occurred.
COUNTY:
(2)

Portage

(3)

Other Cases. If no defendant is a resident of this district, or if the defendant is a corporation not having a principle
place of business within the district, and the cause of action arose or the event complained of occurred outside
this district, please set forth the county of the plaintiff's residence.
COUNTY:

IV.

The Counties in the Northern District of Ohio are divided into divisions as shown below. After the county is
determined in Section III, please check the appropriate division.
EASTERN DIVISION

AKRON
CLEVELAND
YOUNGSTOWN

(Counties: Carroll, Holmes, Portage, Stark, Summit, Tuscarawas and Wayne)


(Counties: Ashland, Ashtabula, Crawford, Cuyahoga, Geauga, Lake,
Lorain, Medina and Richland)
(Counties: Columbiana, Mahoning and Trumbull)

WESTERN DIVISION
TOLEDO

(Counties: Allen, Auglaize, Defiance, Erie, Fulton, Hancock, Hardin, Henry,


Huron, Lucas, Marion, Mercer, Ottawa, Paulding, Putnam, Sandusky, Seneca
VanWert, Williams, Wood and Wyandot)

JS 44 Reverse (Rev. 0/16)

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INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44


Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a)
(b)
(c)

Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".

II.

Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)

III.

Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.

IV.

Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is
sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than
one nature of suit, select the most definitive.

V.

Origin. Place an "X" in one of the seven boxes.


Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to
changes in statue.

VI.

Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII.

Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.