Highwave v. Grand Innovations USA - Complaint

Case 2:20-cv-05020 Document 1 Filed 06/05/20 Page 1 of 9 Page ID #:1
1 K. Andrew Kent, State Bar No. 130097

RINCON VENTURE LAW GROUP
2 2801 Townsgate Rd., Suite 200
Westlake Village, California 91361
3 Telephone: (805) 557-0580
Facsimile: (805) 557-0480
4 akent@rincongroup.com
5 Attorneys for Plaintiff
HIGHWAVE, INC.
6
8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA
10
HIGHWAVE, INC., ) Case No.
11 )
Plaintiff, ) COMPLAINT FOR PATENT
12 ) INFRINGEMENT
vs. )
13 )
GRAND INNOVATIONS USA LLC, )
14 VF & CO., and GROCERY OUTLET ) DEMAND FOR JURY TRIAL
HOLDING CORP. )
15 )
Defendants. )
16 ________________________________ )
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Plaintiff Highwave, Inc. (“Highwave”) alleges the following claims against
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Defendants Grand Innovations USA, LLC (“Grand Innovations”), VF & Co., LLC
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(“VF”) and Grocery Outlet Holding Corp. (“Grocery Outlet”)(collectively
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“Defendants”) for patent infringement under this Court’s subject matter
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jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338(a):
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THE PARTIES
28 1. Plaintiff Highwave is a California corporation, with its principal place
of business at 3301 W 5th Street, Suite 130, Oxnard, CA 93030.
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HIGHWAVE, INC. COMPLAINT FOR PATENT INFRINGEMENT
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2. Upon information and belief, Defendant Grand Innovations is a
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California limited liability company, having a principal place of business at 10316
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Norwalk Blvd., Santa Fe Springs, California.
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3. Upon information and belief, Defendant VF is a California limited
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liability company, whose principal place of business is the same as Grand
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Innovations’: 10316 Norwalk Blvd., Santa Fe Springs, California. On information
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and belief, Grand Innovations and VF are corporate affiliates and share the same
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chief executive, Lokesh D. Sadhwani.
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4. Upon information and belief, Defendant Grocery Outlet is a Delaware
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corporation, whose principal place of business is 5650 Hollis Street, Emeryville,
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California.
13 JURISDICTION AND VENUE
14 5. This action includes claims arising under the Patent Laws of the
15 United States, United States Code, Title 35. This Court has subject matter
16 jurisdiction under 28 U.S.C. §§ 1331 and 1338(a).
17 6. This Court has personal jurisdiction over each Defendant. Grand
18 Innovations and VF are each organized under California law and headquartered in
19 this district. Grocery Outlet similarly is headquartered in California. Each
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Defendant, Grand Innovations, VF and Grocery Outlet, engages in business within
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this district on a continuous and systematic basis.
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7. Venue is proper in this district under 28 U.S.C. §§ 1391 and 1400(b)
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because, among other reasons, each of the Defendants are subject to personal
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jurisdiction in this district, have committed acts of infringement in this district, and
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can be found in this district.
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FACTUAL ALLEGATIONS
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8. Plaintiff Highwave was founded in 1983. Since that time, through
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many years of hard work, creativity, inventiveness and investment, it became a
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leading innovator of housewares, and travel-oriented consumer products, such as
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travel mugs for coffee, tea, wine and water, and has been recognized and honored
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by the trade for product design excellence. Among its consumer product
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innovations were the first travel mug with a drink-through top, the first travel mug
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with hinged closures on a drink top, the first stainless double wall vacuum tumbler,
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first 100% leak-tight design, first 360-degree drink top, first drink press with full
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shut-off infusion and sediment avoidance, first vacuum bottle for wine, a design
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for aerating and preserving wine, a collapsible wine ice bucket, and the subject of
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this action, a novel travel mug for dogs. Its products have been carried by
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popular retailers such as Starbucks, Peet’s, Eddie Bauer, Disney, Teavana, and
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Hammacher Schlemmer.
13 9. To protect its innovations and creative designs, Highwave secures
14 patent protection. To date, over 40 patents have issued to it. One of the patents
15 held by Highwave is D741,025 (the “D’025 Patent”). A true and correct copy of
16 the D’025 Patent is attached to this Complaint as Exhibit 1 and incorporated by
17 this reference. The D’025 Patent protects the ornamental design of a portable pet
18 drinking bowl, a design invented by Highwave’s chief executive, Gary Ross, and
19 assigned by him to Highwave. Highwave produces and sells an Autodogmug®
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product, using and embodying this patented design. As testament to the originality
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of its design, Autodogmug® products have won honors for global innovation from
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the International Housewares Association, have been featured nationally on the
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Good Morning America television show, have been included as featured products
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in widely circulated magazines such as O The Oprah Magazine and Real Simple,
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and shown in other widely circulated publications such as People, The Huffington
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Post and Buzzfeed. They have proven tremendously popular among pet owners,
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who make comments such as “Awesome water bowl and bottle all-in-one,” “Love
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this water bottle!” and “Best water bottle for pup.” Here is an image showing one
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of Highwave’s patented Autodogmug® products:
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10. Pursuant to 35 U.S.C. § 287, Highwave has given notice to the public
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of the D’025 Patent, by marking its products. Highwave also has given written
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notice of the D’025 Patent protecting its products, delivered to Defendants Grand
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Innovations and Grocery Outlet, copies of which, on information and belief, have
18 been given to Defendant VF
19 11. On information and belief, in or about 2019, executives of Grand
20 Innovations and VF saw an authorized product practicing the D’025 Patent and
21 resolved to have a cheap knock-off of it made, imported and sold. They called
22 their knock-off the 2-In-1 Pet Water Bottle & Bowl (“2-In-1” or “Accused
23 Product”). Grand Innovations and VF thereafter imported, distributed and sold the
24 Accused Product throughout California and other territories, including through
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Defendant Grocery Outlet. On information and belief, Grocery Outlet has offered
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for sale and sold the knock-off Accused Product in its stores throughout California
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as well as in other states.
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12. Highwave therefore brings its claim for infringement of the design
patent protecting its Autodogmug® pet product, as set forth below. Highwave’s
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patent rights relating to the Autodogmug® pet product are not limited to the D’025
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design patent, and Highwave therefore reserves its right to amend its pleading of
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claims as more information about the Defendants’ wrongful actions and acts of
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infringement are learned.
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FIRST CLAIM FOR RELIEF
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(Patent Infringement, U.S. Des. Pat No. D741,025, pursuant to
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35 U.S.C. § 271)
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13. Highwave realleges and incorporates by reference each and every
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allegation of paragraphs 1 through 13 above, as if set forth in full herein.
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14. On October 23, 2015, the United States Patent and Trademark Office
13 duly and legally issued the D’025 Patent for “[t]he ornamental design for a
14 portable water travel mug for dogs, as shown and described.”
15 15. Highwave is the owner of the entire right, title, and interest in and to
16 the D’025 Patent.
17 16. Highwave’s ownership of the D’025 Patent includes without
18 limitation the exclusive right to enforce the D’025 Patent, the exclusive right to file
19 actions based on infringement of the D’025 Patent, and the exclusive right to
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recover damages or other monetary amounts for infringement of the D’025 Patent
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and/or be awarded injunctive relief enforcing the D’025 Patent. As the legal owner
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of the D’025 Patent, Highwave has standing to bring legal action to enforce all
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rights arising under the D’025 Patent.
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17. The D’025 Patent is a design patent teaching an ornamental design for
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a portable pet travel mug. Figures 1 through 9 from the attached D’025 Patent
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depict various perspective views of the embodying the patented design, embodied
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in Highwave’s Autodogmug® product.
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18. Below is a side perspective of Highwave’s patented design, shown
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along with the corresponding view of the Accused Product marketed by
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Defendants.
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Highwave Patented Design Accused 2-in-1 Product
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Highwave Patented Design Accused 2-in-1 Product
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19. The Accused Product has an overall appearance that would be viewed
3 by the ordinary observer familiar with the prior art as confusingly similar to and
4 substantially the same as the design claimed in the D’025 Patent.
5 20. On information and belief, Defendants have committed acts of direct
6 infringement of the D’025 Patent within this judicial district and elsewhere by,
7 among other things, having made, importing, using, offering to sell, and selling
8 products, including the ‘2-In-1” product, that embody the design claimed in the
9 D’025 Patent. Defendants also actively encourage and instruct their customers
10 and end users to use products embodying the design claimed in the D’025 Patent,
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knowing and intending that they do so through normal and customary use of the
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products, despite their infringement of the D’025 Patent. On information and
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belief, Defendants will continue to make, import, offer for sale and sell infringing
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products, or induce infringements, unless enjoined by this Court.
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21. Due to Defendants’ infringement of the D’025 Patent, Highwave has
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suffered, is suffering, and will continue to suffer irreparable injury for which
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Highwave has no adequate remedy at law. Highwave is therefore entitled to a
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permanent injunction against any further infringing conduct by Defendants.
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22. Each Defendant has profited and is profiting from its infringement of
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the ‘D025 Patent. Highwave has been and is being damaged and losing profit from
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such infringements. Highwave is therefore entitled to monetary damages, in an
23 amount adequate to compensate it for Defendants’ infringements, but in no event
24 less than a reasonable royalty for the use made of the invention by Defendants,
25 together with interest and costs as fixed by the Court.
26 23. Each Defendant has had actual or constructive knowledge of
27 Highwave’s rights in the D’025 Patent, as a result of Highwave’s marking of
28 authorized products with which the Accused Products seek to compete and divert
sales from, as well as its written notices to Grand Innovations and Grocery Outlet.
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On information and belief, each Defendant also has had knowledge of the Accused
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Product’s infringement of the D’025 Patent, together with the intent and plan to
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infringe or willful blindness to that infringement.
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24. Defendants’ infringement of the D’025 Patent is exceptional. The
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Court may and should increase the damages awarded to Highwave up to three
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times, pursuant to 35 U.S.C. § 284. Highwave also is entitled to attorneys’ fees
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and costs, pursuant to 35 U.S.C. § 285.
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PRAYER FOR RELIEF
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WHEREFORE, Highwave prays for judgment as follows:
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1. That Defendants have infringed the D’025 Patent;
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2. That Defendants’ infringement of the D’025 Patent was willful;
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3. That Defendants, their respective officers, agents, servants,
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employees, attorneys, assigns, and all persons in active concert with or
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participation with them be forthwith and permanently enjoined from infringing or
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inducing infringement of the D’025 Patent;
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4. That Defendants be directed to take such affirmative steps as
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necessary to remedy their infringements and prevent further infringement,
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including destruction of goods, packaging, advertising and instrumentalities of
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infringement, as well as issuing corrective advertisements;
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5. That Defendants be ordered to recall any infringing goods and any
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other materials sold, distributed, advertised, or marketed, which infringe any and
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all of the D’025 Patent, or any colorable imitation or facsimile thereof, not
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authorized by Highwave;
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6. That Highwave be awarded damages in an amount to be proven at
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trial.
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7. That Highwave be awarded increased damages, up to three times the
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amount of damages found or assessed.
8. That this case be found exceptional under 35 U.S.C. § 285 and
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Highwave be awarded its attorneys’ fees; and
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9. That Highwave be awarded such further relief as the Court deems just
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and proper.
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Respectfully submitted,
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Dated: June 5, 2010 RINCON VENTURE LAW GROUP
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By: /s/ K. Andrew Kent_________
10 K. Andrew Kent
Attorneys for Plaintiff Highwave, Inc.
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JURY DEMAND
14 Pursuant to Rule 38 of the federal Rules of Civil Procedure, Highwave

15 demands a trial by jury on all issues triable by jury.
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17 Respectfully submitted,
18 Dated: June 5, 2020 RINCON VENTURE LAW GROUP
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21 By: /s/ K. Andrew Kent____________

K. Andrew Kent
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Attorneys for Plaintiff Highwave, Inc.
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Case 2:20-cv-05020 Document 1-1 Filed 06/05/20 Page 1 of 13 Page ID #:10
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Case 2:20-cv-05020 Document 1 Filed 06/05/20 Page 1 of 9 Page ID #:1

1 K. Andrew Kent, State Bar No. 130097

8 UNITED STATES DISTRICT COURT

14 Pursuant to Rule 38 of the federal Rules of Civil Procedure, Highwave

21 By: /s/ K. Andrew Kent____________

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