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Case 2:19-cv-16285 Document 1 Filed 08/02/19 Page 1 of 12 PageID: 1

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF NEW JERSEY

LAROSE INDUSTRIES, LLC d/b/a


CRA-Z-ART, Civil Action No.

Plaintiff, COMPLAINT FOR TRADE DRESS


INFRINGEMENT AND UNFAIR
v. COMPETITION

ANKER PLAY PRODUCTS, LLC, JURY TRIAL REQUESTED

Defendant.

1. Plaintiff LaRose Industries, LLC d/b/a Cra-Z-Art (hereinafter, “LaRose”) files this

Complaint for trademark infringement, trade dress infringement, and unfair competition pursuant

to the Lanham Act, 15 U.S.C. §1051 et seq., and in violation of New Jersey’s Unfair Competition

Law, N.J.S.A. 56:4-1 et seq. and New Jersey common law. LaRose alleges as follows:

PARTIES

2. LaRose is a limited liability company organized and existing under the laws of the

State of New Jersey and having a principal place of business at 1578 Sussex Turnpike, Building

5, Randolph, New Jersey 07869.

3. Upon information and belief, Defendant Anker Play Products, LLC (hereinafter,

“Anker”) is a limited liability company organized and existing under the laws of the State of

Florida and having a principal place of business at 420 Lincoln Road, Suite 340, Miami Beach,

Florida 33139.

4. Upon information and belief, Anker sells and offers for sale products in New Jersey.
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JURISDICTION AND VENUE

5. Jurisdiction is proper in this Court because this action arises under federal law,

namely, 15 U.S.C. §1051 et seq. (the “Lanham Act”). This Court has jurisdiction over this action

under 28 U.S.C. §1331 (federal question) and 28 U.S.C. §1338 (trademark/trade dress, unfair

competition). This Court has supplemental subject matter jurisdiction over all state law claims,

including claims arising under New Jersey’s unfair competition law, pursuant to 28 U.S.C. §1367.

6. This Court has personal jurisdiction over Anker because Anker, upon information

and belief, conducts business in the State of New Jersey and within this district, including selling

and offering for sale products in New Jersey, and the injury inflicted on LaRose by Anker occurred

within the State of New Jersey.

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

FACTS

8. In 2014, Cra-Z-Art launched its Ultimate Art Extravaganza! arts and crafts tubs,

which contain a variety of arts and crafts products, such as sidewalk chalk, washable markers,

colored pencils, crayons, and artist pads (hereinafter, the “Cra-Z-Art tub”). Photographs of the

Cra-Z-Art tub are attached as Appendix A, left column thereof, to this Complaint.

9. The trade dress of the Cra-Z-Art tub (the “Cra-Z-Art Tub Trade Dress”) is

distinctive and the combination of the trade dress features is unique.

10. For example, with reference to attached Appendix A, left column, the Cra-Z-Art

Tub Trade Dress includes one or more of the following features:

• A distinctively shaped, transparent container having concave sidewalls.

• A lid in a bright blue color, provided with a handle in a bright red color, which contrasts

with the lid’s bright blue color to provide a distinctive look. Each of the opposing long

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sides of the lid includes a rectangular-shaped tab in the same bright blue color as the

rest of the lid.

• The front side of the container of the Cra-Z-Art tub is substantially covered by a product

label, which contains colorful photos of a layout of the arts and crafts product contents.

• The rear and lateral sides of the container of the Cra-Z-Art tub display certain arts and

crafts products placed inside the tub in a distinctive pattern.

11. Each of the foregoing features of the Cra-Z-Art tub is non-functional. By way of

example, numerous alternate tub designs are available to makers of arts and crafts tubs. For

instance, containers and lids can be provided with any one of numerous different shapes and

configurations (such as cylindrical or circular). Similarly, there are a myriad of alternate color

combinations (e.g., pink, purple, yellow, etc.) for arts and crafts tub makers to choose from.

Likewise, numerous different options are available for designing a front product label, as well as

for placing and displaying product contents inside the tub. In addition, because the contents in the

Cra-Z-Art tub are placed in a predetermined pattern, the method of manufacturing the Cra-Z-Art

tub is more complicated and/or time-consuming, and hence more costly.

12. LaRose is not aware of any issued utility patent or utility patent application

covering the Cra-Z-Art tub.

13. In view of the combination of the foregoing features, the Cra-Z-Art Tub Trade

Dress is distinctive.

14. Since the market launch of the Cra-Z-Art tub in 2014, LaRose has continuously and

extensively advertised, promoted and/or sold its tub to consumers throughout the United States,

including New Jersey. The Cra-Z-Art tub has been a commercial success for many years and is

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sold in several retail stores such as Walmart, Staples, and Kohls, as well as by Internet retailers,

such as Amazon.com.

15. Due to extensive commercial use and sales of the Cra-Z-Art tub and its associated

trade dress, LaRose has established valuable trademark rights in and to the Cra-Z-Art Tub Trade

Dress, goodwill in the marketplace, and extensive recognition of the trade dress by consumers, all

of which represent a valuable asset for LaRose.

16. LaRose discovered that Anker is making, advertising, and selling knock-off

products of the Cra-Z-Art tub, namely, its Pembrook Deluxe Artist Kit tubs (hereinafter, the

“Anker tub”).

17. Upon information and belief, the Anker tubs were advertised and sold in Aldi

stores, including Aldi stores located in New Jersey.

18. The Anker tubs are virtually identical to the Cra-Z-Art tubs, and the trade dress of

the Anker tub (hereinafter, the “Anker Tub Trade Dress”), taken as a whole, is strikingly similar

to the Cra-Z-Art Tub Trade Dress to cause a likelihood of consumer confusion.

19. With further reference to Appendix A, right column, the Anker Tub Trade Dress

includes the following features:

• A container having a size, shape and ornamental design that are virtually identical to

those of the container of the Cra-Z-Art tub.

• A lid having a size, shape, ornamental design that are virtually identical to those of the

lid in the Cra-Z-Art tub. The lid and its handles in the Anker tub have the same bright

blue/bright red combination as that in the Cra-Z-Art tub.

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• Like the product label in the Cra-Z-Art tub, the product label in the Anker tub

substantially covers a front wall of the container and includes colorful photos of a

layout of its arts and crafts product contents.

• The rear and lateral sides of the container of the Anker tub display arts and craft

products in a pattern similar to that in the Cra-Z-Art tub.

20. Upon information and belief, the Anker tubs are sold through the same or similar

channels of trade, to the same or similar class of consumers, at the same or similar prices as the

Cra-Z-Art tub. Given the foregoing, as well as the striking similarity between Anker’s Tub Trade

Dress and the Cra-Z-Art Tub Trade Dress, Anker’s use of its Tub Trade Dress will inevitably lead

to consumer confusion.

21. Upon information and belief, prior to its manufacturing and distribution of the

Anker tub to Aldi, Anker was aware of prior business negotiations between LaRose and Aldi

concerning the potential sale of the Cra-Z-Art tub in Aldi stores.

22. Based upon this awareness, Anker had knowledge of the Cra-Z-Art tub and the Cra-

Z-Art Tub Trade Dress and copied it.

23. On or about October 17, 2018, LaRose, through its legal counsel, sent a cease and

desist letter to Aldi, alleging that the Anker tubs infringe LaRose’s Cra-Z-Art Tub Trade Dress.

24. On October 31, 2018, Anker contacted LaRose’s legal counsel, advising that it was

the manufacturer of the Anker tub, that Aldi forwarded LaRose’s cease and desist letter to Anker,

and that Anker was responsible for the dispute going forward, presumably as an indemnitor to

Aldi.

25. On or about November 9, 2018, Anker contacted LaRose’s legal counsel, denying

any infringement and unfair competition.

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26. Anker’s blatant and unauthorized copying of the Cra-Z-Art tub, the Cra-Z-Art Tub

Trade Dress, and Anker’s commercial activities concerning same constitutes willful infringement

and misappropriation of LaRose’s trade dress rights in and to the Cra-Z-Art tub.

27. Anker’s infringement and misappropriation of LaRose’s Cra-Z-Art tub products

and the Cra-Z-Art Tub Trade Dress to advertise and sell identical products has created a likelihood

that consumers will be confused, particularly upon initial interest.

28. Anker’s unauthorized use of the Cra-Z-Art Tub Trade Dress would harm and

diminish LaRose’s significant goodwill established in the marketplace; and, therefore, constitutes

infringement of LaRose’s valuable rights in the Cra-Z-Art Tub Trade Dress, as well as unfair

competition.

29. Based on the foregoing, LaRose brings this lawsuit against Anker to ameliorate the

harm caused by Anker’s recent pattern of infringement of LaRose’s rights in the Cra-Z-Art Tub

Trade Dress embodied in its products.

COUNT I
(FEDERAL INFRINGEMENT OF TRADE DRESS AND/OR UNFAIR COMPETITION
UNDER THE LANHAM ACT, 15 U.S.C. §1051 ET SEQ.)

30. LaRose incorporates paragraphs 1-27 of the Complaint as though set forth fully

herein.

31. LaRose is the exclusive owner of all rights, title, and interest in and to the Cra-Z-

Art Tub Trade Dress.

32. LaRose’s rights in and to the Cra-Z-Art Tub Trade Dress predate any rights that

Anker could claim in and to the Anker Tub Trade Dress.

33. LaRose’s Cra-Z-Art Tub Trade Dress is non-functional.

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34. LaRose’s Cra-Z-Art Tub Trade Dress is distinctive as to the source of LaRose’s

products, and/or has acquired secondary meaning because consumers associate LaRose as the

source of products featuring LaRose’s Cra-Z-Art Tub Trade Dress.

35. Anker’s use of its confusingly similar trade dress in commerce to advertise, market,

promote, distribute, offer for sale, and/or sell Anker’s products is likely to cause confusion, cause

mistake, and/or deceive consumers into mistakenly believing that Anker is LaRose, and/or that

Anker is a licensee, authorized distributor, or affiliate of LaRose and/or LaRose’s products

featuring LaRose’s trade dress, and/or that Anker, its activities, and/or its products bearing Anker’s

confusingly similar trade dress are authorized, endorsed, sponsored or approved by LaRose, and/or

that Anker, its activities, and/or its products featuring Anker’s confusingly similar trade dress

originate with, are connected with, or are associated with LaRose and/or LaRose’s products

featuring LaRose’s trade dress, or vice versa.

36. Upon information and belief, Anker adopted, and uses, its confusingly similar trade

dress in furtherance of Anker’s willful, deliberate, and bad faith scheme to trade upon the extensive

consumer goodwill and commercial success of LaRose’s products featuring LaRose’s trade dress.

37. Upon information and belief, Anker has made, and will continue to make,

substantial profits and gain from the sale of products featuring Anker’s confusingly similar trade

dress, to which it is not entitled in law or equity.

38. Upon information and belief, Anker’s acts and conduct complained of herein

constitute federal trade-dress infringement and/or unfair competition in violation of 15 U.S.C. §

1125(a).

39. LaRose has suffered, and will continue to suffer, irreparable harm from Anker’s

use of its confusingly similar trade dress, unless restrained by law.

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40. LaRose has no adequate remedy at law.

COUNT II
(TRADE DRESS INFRINGEMENT AND/OR UNFAIR COMPETITION UNDER
UNDER N.J.S.A. §56:4-1 et seq.)

41. LaRose incorporates paragraphs 1-40 of the Complaint as though set forth fully

herein.

42. LaRose is the exclusive owner of all rights, title, and interest in and to the Cra-Z-

Art Tub Trade Dress.

43. LaRose’s rights in and to the Cra-Z-Art Tub Trade Dress predate any rights that

Anker could claim in and to the Anker Tub Trade Dress.

44. LaRose’s Cra-Z-Art Tub Trade Dress is non-functional.

45. LaRose’s Cra-Z-Art Tub Trade Dress is distinctive as to the source of LaRose’s

products, and has acquired secondary meaning because consumers associate LaRose as the source

of products featuring LaRose’s Cra-Z-Art Tub Trade Dress.

46. Anker’s use of its confusingly similar trade dress in commerce to advertise, market,

promote, distribute, offer for sale, and/or sell Anker’s products is likely to cause confusion, cause

mistake, and/or deceive consumers into mistakenly believing that Anker is LaRose, and/or that

Anker is a licensee, authorized distributor, or affiliate of LaRose and/or LaRose’s products

featuring LaRose’s trade dress, and/or that Anker, its activities, and/or its products bearing Anker’s

confusingly similar trade dress are authorized, endorsed, sponsored or approved by LaRose, and/or

that Anker, its activities, and/or its products featuring Anker’s confusingly similar trade dress

originate with, are connected with, or are associated with LaRose and/or LaRose’s products

featuring LaRose’s trade dress, or vice versa.

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47. Upon information and belief, Anker adopted, and uses, its confusingly similar trade

dress in furtherance of Anker’s willful, deliberate, and bad faith scheme to trade upon the extensive

consumer goodwill and commercial success of LaRose’s products featuring LaRose’s trade dress.

48. Upon information and belief, Anker has made, and will continue to make,

substantial profits and gain from the sale of products featuring Anker’s confusingly similar trade

dress, to which it is not entitled in law or equity.

49. Upon information and belief, Anker’s acts and conduct complained of herein

constitute trademark/trade-dress infringement and/or unfair competition in violation of N.J.S.A.

§56:4-1 et seq.

50. LaRose has suffered, and will continue to suffer, irreparable harm from Anker’s

use of its confusingly similar trade dress, unless restrained by law.

51. LaRose has no adequate remedy at law.

COUNT III
(COMMON LAW TRADEMARK INFRINGEMENT
AND/OR UNFAIR COMPETITION)

52. LaRose incorporates paragraphs 1-51 of the Complaint as though set forth fully

herein.

51. LaRose has built up valuable goodwill in LaRose’s Cra-Z-Art Tub Trade Dress.

52. Anker used or has used, with full knowledge of LaRose’ prior trade dress rights and

without authorization from LaRose, a trade dress strikingly similar to LaRose’s Cra-Z-Art Tub

Trade Dress to advertise, distribute, sell, and offer to sell the Anker tub.

53. Anker’s acts as alleged herein are likely to cause confusion, mistake and deception

to consumers as to the affiliation, connection or association of Anker with LaRose, and as to the

origin, sponsorship and/or approval of the Anker tub by LaRose.

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54. Anker’s unauthorized acts constitute direct infringement of LaRose’s rights in the

Cra-Z-Art Tub Trade Dress and/or unfair competition in violation of New Jersey common law.

55. LaRose has suffered, is suffering, and will continue to suffer irreparable injury for

which LaRose has no adequate remedy at law. LaRose is therefore entitled to a permanent

injunction against further infringing conduct by Anker.

JURY DEMAND

53. LaRose hereby demands a jury on all issues so triable.

PRAYER FOR RELIEF

WHEREFORE, LaRose requests that this Court enter a judgment:

A. A Declaration that Anker, by its actions alleged herein, has infringed LaRose’s Cra-

Z-Art Tub Trade Dress in violation of the U.S. Trademark Act, New Jersey statutory law, and New

Jersey common law;

B. A Declaration that Anker, by its actions alleged herein, has engaged in unfair

competition in violation of the U.S. Trademark Act, New Jersey statutory law, and New Jersey

common law;

C. An Order preliminarily and permanently enjoining and restraining Anker, its

parents, subsidiaries, divisions, branches, affiliates, predecessors or successors-in-interest, and any

entities acting or purporting to act for or on behalf of any of the foregoing, including any agents,

employees, representatives, officers, directors, servants, and partners, and those persons in active

concert or participation with Anker, from manufacturing, producing, publishing, distributing,

supplying, licensing, using, copying, reproducing, advertising, promoting, displaying, offering for

sale, selling, and/or otherwise exploiting any good or service bearing Anker’s Anker Tub Trade

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Dress, as well as any other product packaging or designation identical or confusingly similar to

LaRose’s Cra-Z-Art Tub Trade Dress;

D. An Order directing Anker to remove its Anker Tub Trade Dress, as well as any

other product packaging or designation that is identical or confusingly similar to LaRose’s Cra-Z-

Art Tub Trade Dress, from all of Anker’s goods and services, as well as any other web sites or

promotional materials, whether electronic, printed or otherwise, under Anker’s direct or indirect

dominion or control;

E. An Order, pursuant to 15 U.S.C. § 1118, directing the seizure, delivery and

destruction of each good and service within Anker’s possession, custody or control that infringes

LaRose’s Cra-Z-Art Tub Trade Dress;

F. An Order requiring Anker to account for and pay over to LaRose: (i) all profits

derived directly and proximately by Anker from the advertising, promotion, and sale of products

that infringe LaRose’s Cra-Z-Art Tub Trade Dress, and (ii) all damages sustained by LaRose

because of Anker’s infringement of LaRose’s Cra-Z-Art Tub Trade Dress as alleged herein, in

amounts to be determined at trial;

G. A Declaration that Anker’s acts and conduct complained of herein are

“exceptional” within the meaning of 15 U.S.C. § 1117, and awarding LaRose its reasonable costs

and attorneys’ fees based thereon;

H. An Order awarding LaRose statutory and punitive damages;

I. An Order awarding LaRose pre- and post-judgment interest; and

J. An Order awarding LaRose any further relief this Court deems just and equitable.

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Dated: Florham Park, New Jersey


August 2, 2019
Respectfully submitted,
GREENBERG TRAURIG, LLP

By: s/ Joseph Agostino


Ralph W. Selitto, Jr.
Joseph Agostino
John K. Kim
500 Campus Drive
Florham Park, NJ 07932
Tel. (973) 443-3572
Fax: (973) 295-1292
selittor@gtlaw.com
agostinoj@gtlaw.com
kimjo@gtlaw.com
Attorneys for Plaintiff,
LaRose Industries, LLC d/b/a Cra-Z-Art

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Case 2:19-cv-16285 Document 1-1 Filed 08/02/19 Page 1 of 2 PageID: 13
APPENDIX A

Cra-Z-Art Tub Anker Tub

Front View Front View

Rear View Rear View


Case 2:19-cv-16285 Document 1-1 Filed 08/02/19 Page 2 of 2 PageID: 14
APPENDIX A

Cra-Z-Art Tub Anker Tub

Side View Side View

Top View Top View


Case 2:19-cv-16285 Document 1-2 Filed 08/02/19 Page 1 of 1 PageID: 15

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF NEW JERSEY

LAROSE INDUSTRIES, LLC d/b/a


CRA-Z-ART, Civil Action No. _____________

Plaintiff,

v. DISCLOSURE STATEMENT OF
PLAINTIFF LAROSE INDUSTRIES,
ANKER PLAY PRODUCTS, LLC. LLC d/b/a CRA-Z-ART PURSUANT
TO FED. R. CIV. P. 7.1
Defendant.

Pursuant to Fed. R. Civ. P. 7.1, Plaintiff LaRose Industries, LLC d/b/a Cra-Z-Art states

that it has no parent corporation, and no publicly held corporation owns 10% or more of its

stock.

Dated: August 2, 2019


Florham Park, New Jersey

Respectfully submitted,

GREENBERG TRAURIG, LLP

By: s/ Joseph Agostino


Ralph W. Selitto, Jr.
Joseph Agostino
John K. Kim
500 Campus Drive
Florham Park, NJ 07932
Tel. (973) 443-3572
Fax: (973) 295-1292
selittor@gtlaw.com
agostinoj@gtlaw.com
kimjo@gtlaw.com

Attorneys for Plaintiff,


LaRose Industries, LLC d/b/a Cra-Z-Art
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