Horowitz v. Toolots - Complaint

Case 8:21-cv-00021 Document 1 Filed 01/06/21 Page 1 of 11 Page ID #:1
1 Marc C. Forsythe – State Bar No. 153854

2 GOE FORSYTHE & HODGES LLP
18101 Von Karman Avenue, Suite 1200
3
Irvine, CA 92612
4 Tel: (949)798-2460
Fax: (949) 955-9437
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Email: MForsythe@goeforlaw.com
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Co-Counsel for Plaintiff Brian Horowitz, an individual
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8
Darrell W. Gibby – Ark. Bar No. 2007307
GIBBY LAW FIRM, PPLC
9 903 S.E. 22nd Street, Suite 3
10 Bentonville, AR 72712
Tel: (479) 899-2857
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Email: DarrellGibby@gibbylawfirm.com
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Co-Counsel for Plaintiff Brian Horowitz, an individual
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(Pro Hac Vice TBD)
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16 UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA - SANTA ANA DIVISION
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BRIAN HOROWITZ, Case No.: __________________
20 Plaintiff,
21 COMPLAINT FOR PATENT
vs. INFRINGEMENT
22
23
TOOLOTS, INC.,
24 Defendant
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27
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COMPLAINT FOR PATENT INFRINGEMENT - 1
1 COMES NOW, Plaintiff Brian Horowitz (“Plaintiff” or “Horowitz”) by and

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through his attorney Darrell W. Gibby, and for his Complaint against Defendant
3
4 Toolots, Inc. (“Defendant” or “Toolots”) states the following:

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PARTIES, JURISDICTION, AND VENUE
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7 1. Plaintiff is a United States Citizen currently residing in Orange County,

8
California.
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10 2. Upon information and belief, Defendant is a California corporation with

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a principal place of business in Orange County, California.
12
13 3. The claims in this case relate to violations of United States patent laws
14 codified at 35 USCS § 271 et. seq.
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4. This Court has subject matter jurisdiction.
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17 5. Venue is proper in this Court.

18
FACTUAL BACKGROUND
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20 6. Plaintiff restates and incorporates all allegations in paragraphs 1 through

21 5.
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7. On or about September 29, 2015, United States Patent Number 9,145,154
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24 (“‘154 patent”) was granted to Plaintiff for the protection of a certain folding
25
wagon. A true and correct copy of the patent is attached herewith and incorporated
26
27 herein as “Exhibit A”.

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1 8. On or about August 7, 2018, United States Patent Number D757,637

2
(“‘637 patent”) was granted to Plaintiff for the protection of a certain folding
3
4 wagon wheel tread design. A true and correct copy of the patent is attached
5
herewith and incorporated herein as “Exhibit B”.
6
7
9. From at least the time of filing the application for the ‘154 patent,
8 Plaintiff has from time to time manufactured and/or sold and/or authorized his
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licensees to manufacture and/or sell products in the United States that embody one
10
11 or more claims his ‘154 patent. Such patented products included on their
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packaging a notice of the patent including the ‘154 patent number.
13
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10. From at least the time of filing the application for the ‘637 patent,
15 Plaintiff has from time to time manufactured and/or sold and/or authorized his
16
licensees to manufacture and/or sell products in the United States that embody the
17
18 claimed design of his ‘637 patent. Such patented products included on their
19
packaging a notice of the patent including the ‘637 patent number.
20
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11. Defendant is not licensed or otherwise authorized to manufacture,
22 import, advertise for sale, sell, or use folding wagons that embody any of the
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claims of the ‘154 patent.
24
25 12. Defendant is not licensed or otherwise authorized to manufacture,

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import, advertise for sale, sell, or use folding wagons that embody the claimed
27
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design of the ‘637 patent.
1 13. Beginning in August 2020 or before to the present, Defendant has been
2
manufacturing, importing, advertising for sale, selling, and/or using folding
3
4 wagons (“accused products”) that embody the elements of at least one claim of the
5
‘154 patent. A true and correct copy of a letter Plaintiff’s attorney sent to
6
7
Defendant on or about August 27, 2020 which included images and advertisements
8 of at least one of Defendant’s accused products is attached herewith and

9
incorporated herein as “Exhibit C.”
10
11 14. Beginning in August 2020 or before to the present, Defendant has been
12
manufacturing, importing, advertising for sale, selling, and/or using folding
13
14
wagons (“accused products”) that embody the claimed design of the ‘637 patent.
15 Images of at least one of these accused products is included in “Exhibit C.”

16
15. On or about August 27, 2020, with authority granted by Plaintiff,
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18 Plaintiff’s attorney, Mr. Darrell Gibby drafted and mailed a letter to Defendant to
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place Defendant on notice of its infringement of the ‘154 and ‘637 patents and to
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request Defendant cease and desist such unauthorized acts and to request
22 communication regarding payment for past infringement. See “Exhibit C.”

23
16. Defendant responded to Mr. Gibby’s letter but failed inform Mr. Gibby
24
25 of the extend of its infringing acts and failed to discuss a settlement to reimburse
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Plaintiff for his damages. True and correct copies of communications between the
27
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parties is attached herewith and incorporated herein as “Exhibit D.” Note that that
1 the letter dated July 17, 2018 has the wrong date, it was actually sent on or about
2
September 21, 2020.
3
4 17. Upon information and belief, Defendants continues hold inventory of

5
accused products and/or to advertise for sale and/or sell accused products that
6
7
embody all the elements of at least one claim of the’154 patent.
8 18. Upon information and belief, Defendants continues to hold inventory of

9
accused products and/or advertise for sale and/or sell accused products that
10
11 embody the claimed design of the ‘637 patent.

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19. Plaintiffs has suffered damages in the form of lost profits and/or lost
13
14
royalties resulting from Defendant’s displaced sales of his or his authorized
15 licensees’ folding wagon products that embody one or more claims of the ‘154
16
patent.
17
18 20. Plaintiffs has suffered damages in the form of lost profits and/or lost
19
royalties resulting from Defendant’s displaced sales of his or his authorized
20
21
licensees’ folding wagon products that embody the claimed design of the ‘637
22 patent.
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21. Plaintiff is filing this action for enforcement against Defendants’
24
25 infringement upon his rights under his ‘154 patent and his ‘637 patent.
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COUNT I – Patent Infringement of U.S. Patent No. 9,145,154
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1 22. Plaintiff restates and incorporates all allegations in paragraphs 1 through

2
21.
3
4 23. Plaintiff is the rightful owner of United States Patent Number

5
9,145,154.
6
7
24. Plaintiff’s ‘154 patent is valid.
8 25. From or prior to August 2020 until the present, Defendant has
9
manufactured, advertised for sale, sold, and/or used folding wagons, as shown in
10
11 “Exhibit C,” that embody all the elements of at least one claim of the ‘154 patent.
12
A true and correct copy of a patent analysis showing that all elements taught in at
13
14
least claim 1 of the ‘154 patent are included in Defendants accused wagons is
15 attached herewith and incorporated herein as “Exhibit E.”

16
26. Defendant is not authorized to manufacture, import, advertise for sale,
17
18 sell, nor use folding wagons that embody any of the claims of the ‘154 patent.
19
27. Plaintiff and/or his licensees have, prior to September 19, 2014, and
20
21
from time to time manufactured and/or sold folding wagons that are marked with
22 the entirety of Plaintiff’s ‘154 patent number.

23
28. On or about August 27, 2020, Plaintiff’s attorney, Mr. Darrell Gibby,
24
25 notified Defendant’s by U.S. mail of the infringement of his ‘154 patent and
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demanded Defendants discontinue such actions.
27
28
1 29. Despite having notice of their infringement, Defendants have continued

2
to hold accused products and/or otherwise engage in activities that infringe on
3
4 Plaintiff’s ‘154 patent.

5
30. Defendants activities of infringement upon Plaintiff’s ‘154 patent have
6
7
been and continue to be intentional.
8 31. As a result of Defendants’ intentional infringement upon Plaintiff’s

9
patent, Plaintiff has suffered damages in the amount Defendants have profited by
10
11 their infringement; or, alternatively, Plaintiff has suffered damages in the amount
12
of reasonable royalties he should have been paid for use of his ‘154 patent.
13
14
32. Pursuant to 35 USC § 271, Defendants should be held liable for
15 infringement of Plaintiff’s ‘154 patent.

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33. Upon information and belief, Defendant has sold accused products not
17
18 identified in “Exhibit C.” Plaintiff reserves the right to amend his Complaint if
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necessary or otherwise seek relief for infringement of all of Defendants’ accused
20
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products in any variations that Plaintiff discovers during the course of this lawsuit.
22 COUNT II – Patent Infringement of U.S. Patent No. D757,637

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34. Plaintiff restates and incorporates all allegations in paragraphs 1 through
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25 33.
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35. Plaintiff is the rightful owner of United States Patent Number
27
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D757,637.
1 36. Plaintiff’s ‘637 patent is valid.

2
37. From or before August 2020 until the present, Defendant has
3
4 manufactured, advertised for sale, sold, and/or used folding wagons, as shown in
5
“Exhibit C,” that embody the claimed design of the ‘637 patent.
6
7
38. Defendant is not authorized to manufacture, import, advertise for sale,
8 sell, nor use folding wagons that embody the claimed design of the ‘637 patent.
9
39. Plaintiff and/or his licensees have, prior to February 22, 2018, and from
10
11 time to time manufactured and/or sold folding wagons that are marked with the
12
entirety of Plaintiff’s ‘637 patent number.
13
14
40. On or about August 27, 2020, Plaintiff’s attorney, Mr. Darrell Gibby,
15 notified Defendant’s by U.S. mail of the infringement of his ‘637 patent and
16
demanded Defendants discontinue such actions.
17
18 41. Despite having notice of their infringement, Defendants have continued

19
to hold accused products and/or otherwise engage in activities that infringe on
20
21
Plaintiff’s ‘637 patent.
22 42. Defendants activities of infringement upon Plaintiff’s ‘637 patent have

23
been and continue to be intentional.
24
25 43. As a result of Defendants’ intentional infringement upon Plaintiff’s

26
patent, Plaintiff has suffered damages in the amount Defendants have profited by
27
28
1 their infringement; or, alternatively, Plaintiff has suffered damages in the amount
2
of reasonable royalties he should have been paid for use of his ‘637 patent.
3
4 44. Pursuant to 35 USC § 271, Defendants should be held liable for

5
infringement of Plaintiff’s ‘637 patent.
6
7
45. Upon information and belief, Defendant has sold accused products not
8 identified in “Exhibit C.” Plaintiff reserves the right to amend his Complaint if
9
necessary or otherwise seek relief for infringement of all of Defendants’ accused
10
11 products in any variations that Plaintiff discovers during the course of this lawsuit.
12
RELIEF SOUGHT
13
14
46. Plaintiff restates and incorporates all allegations in paragraphs 1 through
15 45.
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47. For Count I – Patent Infringement of U.S. Patent no. 9,145,154, Plaintiff
17
18 seeks the following:

19
a. Pursuant 35 USCS §83, a preliminary and permanent injunction to
20
21
compel Defendants to immediately discontinue the manufacturing,
22 importing, advertising for sale, selling and/or using any unauthorized

23
folding wagon that embodies any one or more of the claims of
24
25 Plaintiff’s ‘154 patent;

26
b. Damages as provided in 35 USCS § 284 in excess of $75,000 to be
27
28
determined by the Court to compensate Plaintiff for Defendants’
1 infringement of his ‘154 patent. In the alternative Plaintiff seeks

2
damages in the amount of a reasonable royalty in excess of $75,000.
3
4 c. Trebled damages for Defendants intentional infringement of

5
Plaintiff’s ‘154 patent; and
6
7
d. Reasonable attorney’s fees and costs.
8 48. For Count II – Patent Infringement of U.S. Patent No. D757,637,

9
Plaintiff seeks the following:
10
11 a. Pursuant 35 USCS §83, a preliminary and permanent injunction to

12
compel Defendants to immediately discontinue the manufacturing,
13
14
importing, advertising for sale, selling and/or using any unauthorized
15 folding wagon that embodies any one or more of the claims of

16
Plaintiff’s ‘637 patent;
17
18 b. Damages as provided in 35 USCS § 284 in excess of $75,000 to be

19
determined by the Court to compensate Plaintiff for Defendants’
20
21
infringement of his ‘637 patent. In the alternative Plaintiff seeks
22 damages in the amount of a reasonable royalty in excess of $75,000.

23
c. Trebled damages for Defendants intentional infringement of
24
25 Plaintiff’s ‘637 patent; and

26
49. Reasonable attorney’s fees and costs.
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28
\\\
1 WHEREFORE, Plaintiff prays this Court will enter judgment in his favor
2
and grant him all relief as sought along will all other relief to which he may be
3
4 legally entitled.
5
6 Dated this 6th day of January, 2021.

7
8
GOE FORSYTHE & HODGES LLP
9
10
By: /s/Marc C. Forsythe
11 Marc C. Forsythe
12 Co-Counsel for Plaintiff Brian Horowitz
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Case 8:21-cv-00021 Document 1-1 Filed 01/06/21 Page 1 of 59 Page ID #:12

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Case 8:21-cv-00021 Document 1 Filed 01/06/21 Page 1 of 11 Page ID #:1

1 Marc C. Forsythe – State Bar No. 153854

16 UNITED STATES DISTRICT COURT

1 COMES NOW, Plaintiff Brian Horowitz (“Plaintiff” or “Horowitz”) by and

4 Toolots, Inc. (“Defendant” or “Toolots”) states the following:

7 1. Plaintiff is a United States Citizen currently residing in Orange County,

10 2. Upon information and belief, Defendant is a California corporation with

17 5. Venue is proper in this Court.

20 6. Plaintiff restates and incorporates all allegations in paragraphs 1 through

27 herein as “Exhibit A”.

1 8. On or about August 7, 2018, United States Patent Number D757,637

25 12. Defendant is not licensed or otherwise authorized to manufacture,

8 of at least one of Defendant’s accused products is attached herewith and

15 Images of at least one of these accused products is included in “Exhibit C.”

22 communication regarding payment for past infringement. See “Exhibit C.”

4 17. Upon information and belief, Defendants continues hold inventory of

8 18. Upon information and belief, Defendants continues to hold inventory of

11 embody the claimed design of the ‘637 patent.

1 22. Plaintiff restates and incorporates all allegations in paragraphs 1 through

4 23. Plaintiff is the rightful owner of United States Patent Number

15 attached herewith and incorporated herein as “Exhibit E.”

22 the entirety of Plaintiff’s ‘154 patent number.

1 29. Despite having notice of their infringement, Defendants have continued

4 Plaintiff’s ‘154 patent.

8 31. As a result of Defendants’ intentional infringement upon Plaintiff’s

15 infringement of Plaintiff’s ‘154 patent.

22 COUNT II – Patent Infringement of U.S. Patent No. D757,637

1 36. Plaintiff’s ‘637 patent is valid.

18 41. Despite having notice of their infringement, Defendants have continued

22 42. Defendants activities of infringement upon Plaintiff’s ‘637 patent have

25 43. As a result of Defendants’ intentional infringement upon Plaintiff’s

4 44. Pursuant to 35 USC § 271, Defendants should be held liable for

18 seeks the following:

22 importing, advertising for sale, selling and/or using any unauthorized

25 Plaintiff’s ‘154 patent;

1 infringement of his ‘154 patent. In the alternative Plaintiff seeks

4 c. Trebled damages for Defendants intentional infringement of

8 48. For Count II – Patent Infringement of U.S. Patent No. D757,637,

11 a. Pursuant 35 USCS §83, a preliminary and permanent injunction to

15 folding wagon that embodies any one or more of the claims of

18 b. Damages as provided in 35 USCS § 284 in excess of $75,000 to be

22 damages in the amount of a reasonable royalty in excess of $75,000.

25 Plaintiff’s ‘637 patent; and

6 Dated this 6th day of January, 2021.

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