California Costume Collections v. Pandaloon - Complaint

Case 2:21-cv-01323 Document 1 Filed 02/12/21 Page 1 of 13 Page ID #:1
1 Lena N. Bacani (SBN 213556)

lena.bacani@lozaip.com
2 LOZA & LOZA, LLP
305 N. Second Ave., Ste. 127
3 Upland, CA 91786
Telephone: (877) 406-5164
4 Facsimile: (213) 394-3625
5 Attorneys for Plaintiff,
6 California Costume Collections, Inc.
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 CASE NO. 2:21-cv-1323
CALIFORNIA COSTUME
12 COLLECTIONS, INC.,
13 Plaintiff, COMPLAINT
14 v.
15
PANDALOON, LLC. JURY TRIAL DEMANDED
16
Defendant.
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COMPLAINT
1 Plaintiff California Costume Collections, Inc. (“CCC” or “Plaintiff”), by and

2 through its attorneys, brings this Complaint against Pandaloon, LLC (“Defendant”),
3 and alleges as follows:
4 NATURE OF THE ACTION
5 1. This case concerns Defendant’s allegations that CCC has infringed
6 United States Design Patent No. D806,325 (“the ‘325 Patent”), resulting in the
7 takedown of CCC’s product sales listings on Amazon.com.
8 2. CCC asserts claims for declaratory judgment of non-infringement,
9 invalidity, and unenforceability of the ‘325 Patent pursuant to the patent laws of the
10 United States, 35 U.S.C. §§ 102, 103, 282, and the Federal Declaratory Judgment
11 Act, 28 U.S.C. §§ 2201-2202. This action is necessary to resolve the controversy
12 regarding Defendant’s claims of infringement made against CCC and allow CCC to
13 resume selling its accused products.
14 3. CCC also asserts affirmative claims of intentional interference with
15 contract, intentional interference with prospective business relations and unfair
16 competition pursuant to Cal. Bus. & Prof. Code § 17200, et seq.
17 PARTIES
18 4. CCC is a California corporation having its principal place of business
19 at 210 Anderson St., Los Angeles, CA 90033.
20 5. On information and belief, Defendant is a limited liability corporation
21 organized and existing under the laws of the State of California having a place of
22 business at 1020 B. St., Ramona, CA 92065.
23 6. Upon information and belief, Defendant is the owner and assignee of
24 all right, title and interest in the ‘325 Patent, described more fully below.
25 JURISDICTION AND VENUE
26 7. This Court has subject matter jurisdiction over this action pursuant to
27 28 U.S.C. §§ 1331 and 1338(a) because this action involves claims arising under
28 the patent laws of the United States, 35 U.S.C. § 1, et seq., and under the Federal
1
COMPLAINT
1 Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. The Court also has
2 supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over the state claims
3 because they are related to the patent claims and form part of the same case and
4 controversy.
5 8. There exists a real and immediate controversy between CCC and
6 Defendant concerning Defendant’s allegations that CCC infringes Defendant’s ‘325
7 Patent.
8 9. Defendant claims to be the assignee of all rights, title and interest in
9 the ‘325 Patent and has alleged in writing to CCC and Amazon that certain of
10 CCC’s products infringe the ‘325 Patent.
11 10. Defendant also obtained the suspension of CCC’s accused product
12 listings, and the listings of CCC’s customers selling CCC’s accused products, on
13 Amazon.
14 11. CCC has tried to get Defendant to withdraw its Amazon complaints
15 against CCC’s product listings, contacting Defendant’s attorneys multiple times via
16 email, letter and phone calls. Defendant’s attorneys have refused to reply to CCC’s
17 correspondence and phone messages.
18 12. The Amazon listings for CCC’s accused products remain down,
19 harming CCC and CCC’s customers.
20 13. This Court has general personal jurisdiction over Defendant because it
21 has engaged in systematic and continuous business activities in this District and,
22 upon information and belief, hast its principal place of business in California.
23 14. In addition, as described below, this Court has specific personal
24 jurisdiction over Defendant because Defendant has accused CCC of patent
25 infringement and purposefully directed its ‘325 Patent enforcement activities at
26 CCC, a California resident, within this District. Defendant sent a cease and desist
27 letter to CCC in this District. Defendant also obtained the take down of CCC’s
28 sales listings of the accused products from Amazon which seeks to refrain CCC’s
2
COMPLAINT
1 activities in this District directed to manufacturing, importing, offering to sell,

2 selling and using the accused products. CCC’s declaratory judgment claims arise
3 out of and relate to those activities by Defendant.
4 15. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b), (c)
5 and 1400(b). CCC is a California corporation and a substantial part of the events
6 giving rise to CCC’s claims occurred in this District. As Defendant is located here,
7 litigating here will not unduly burden Defendant and the District has a substantial
8 interest in protecting its residents from unwarranted patent infringement claims.
9 FACTUAL ALLEGATIONS
10 16. Founded in 1992, CCC is headquartered in Los Angeles and is a
11 worldwide industry leader and year round supplier of costumes, wigs and
12 accessories. CCC sells its products through brick and mortar retailers and third
13 party online stores.
14 17. In 2010, CCC developed and marketed a line of pet costumes which
15 were introduced commercially in 2011.
16 18. Since then, CCC has produced over 60 unique styles of pet costumes.
17 19. In 2011, CCC developed, and put into commerce in 2012, a series of
18 pet costumes that featured faux front limbs and a body suit covering the pet’s actual
19 front limbs, creating an illusion of a stand up pet-faced character.
20 20. Since 2012, CCC has developed over 10 styles of pet costumes using
21 the same design concept.
22 21. In September 2019, CCC received a cease and desist letter from
23 Defendant’s attorneys dated August 29, 2019. A true and correct copy of
24 Defendant’s cease and desist letter is attached hereto as Exhibit 1.
25 22. Defendant’s letter accused CCC of infringing the ‘325 Patent and
26 demanded that CCC stop “advertising, listing, distribution, selling, or offering for
27 sale” its Panda Pooch PET20163 costume (“Accused Product”) from all online and
28 physical stores.
3
COMPLAINT
1 23. On or around August 2020, CCC was contacted by three of its

2 customer resellers who had their Amazon listings for CCC’s Accused Product taken
3 down as a result of a complaint from Pandaloon to Amazon alleging that the
4 Accused Product listings infringed Defendant’s ‘325 Patent.
5 24. CCC, through its attorneys, sent Defendant a letter on September 1,
6 2020 explaining why the Accused Product does not infringe the ‘325 Patent and
7 that the ‘325 Patent is invalid.
8 25. CCC included evidence of several prior art pet costumes hat were
9 available on the market years before Defendant filed its application for the ‘325
10 Patent.
11 26. One example of prior art provided was the Teddy Bear pet costume
12 from Rubies, which was widely available in the marketplace, including Amazon, at
13 least as early as February 23, 2016. A sample picture of the Teddy Bear costume is
14 shown below:
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4
COMPLAINT
1 27. The letter further asked Defendant to withdraw its Amazon complaints
2 against CCC’s Accused Product listings. A true and correct copy of CCC’s
3 September 1, 2020 letter is attached hereto as Exhibit 2.
4 28. Defendant never responded to CCC’s letter.
5 29. CCC’s attorneys attempted to contact Defendant’s attorneys by email
6 and phone multiple times but all communications went unanswered.
7 30. Upon information and belief, Defendant wrongfully accused CCC’s
8 Accused Product of infringing the ‘325 Patent for the improper, anti-competitive
9 purpose of interfering with CCC’s business.
10 31. Amazon listings for the Accused Products remain down.
11 32. Since August 2020, CCC has been unable to sell its Accused Product
12 on Amazon.com through its resellers, resulting in a significant loss in revenue and
13 profits for CCC and CCC’s customers.
14 33. CCC’s Accused Product ranking on Amazon has also been adversely
15 affected, damaging CCC’s reputation, reviews and standing.
16 Patent-in-Suit
17 34. On December 26, 2017, the United States Patent and Trademark
18 Office (“USPTO”) issued the ‘325 Patent,” titled “Pet Costume.” The ‘325 Patent
19 issued from U.S. Patent Application No. 29/606,387 (“the ‘387 Application”) filed
20 on June 4, 2017. A true and correct copy of the ‘325 Patent is appended to
21 Defendant’s cease and desist letter attached to this Complaint as Exhibit 1.
22 35. Upon information and belief, Defendant is the assignee of all right,
23 title and interest in the ‘325 Patent, including all rights to enforce and prosecute
24 actions for infringement and to collect damages for all relevant times.
25 36. Figure 8 of the ‘325 Patent showing the claimed design is shown
26 below:
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COMPLAINT
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13 37. Defendant submitted an Information Disclosure Statement (IDS) at the
14 time the ‘325 Application was filed. In the submitted (IDS), no mention was made
15 of the readily available prior art costumes such as those disclosed in CCC’s letter.
16 COUNT 1
17 Declaratory Judgement of Non-Infringement of the ‘325 Patent
18 38. CCC incorporates the foregoing paragraphs by reference as though
19 fully set forth herein.
20 39. CCC has not infringed and does not infringe the claim of the ‘325
21 Patent either directly, contributorily, or by inducement, literally or under the
22 doctrine of equivalents, including through its making, use, importation into the
23 United States, sale, and/or offer for sale of the Accused Product.
24 40. Claim 1 of the ‘325 Patent is directed to only the ornamental design of
25 the pet costume shown in Figures 1-8 of the patent.
26 41. The Accused Product does not infringe the ‘325 Patent because it does
27 not include every claim limitation. As one example, the claimed design requires the
28
6
COMPLAINT
1 bear-shaped hood to be attached to the body of the costume. The hood on the
2 Accused Product is not attached to the costume body.
3 42. Separately and additionally, the claimed design requires a drawstring
4 closure around the face opening of the hood. The Accused Product does not have
5 such a closure.
6 43. As a further example, the ‘325 Patent claims a one-fold, half circle ear
7 shape which is not found in the Accused Product. Rather, the ears found in the
8 Accused Product are two-fold with a white fabric insert.
9 44. The Accused Product also features a head that has a smaller
10 circumference in proportion to the costume body whereas the head claimed in the
11 ‘325 Patent is much larger in proportion to the body of the costume.
12 45. The ‘325 Patent also claims a horizontal front seam that extends to the
13 back of the costume which is not present in the Accused Product, which instead has
14 a center Velcro closure.
15 46. As yet another example, the claimed design also includes tie-back
16 closures whereas the Accused Product does not.
17 47. The faux arms of the claimed design attach to the side seem. The
18 Accused Products’ arms do not. Rather, they attach to the neck seam of the body of
19 the costume.
20 48. These differences in design are clearly distinguishable to an ordinary
21 observer.
22 49. Accordingly, at least for the above reasons, CCC does not infringe the
23 ‘325 Patent, either literally or under the doctrine of equivalents.
24 50. CCC also does not induce infringement of the ‘325 patent,
25 contributorily infringe, or otherwise indirectly infringe, for at least the reasons
26 stated above.
27 51. As set forth above, there exists an actual controversy between CCC
28 and Defendant with respect to alleged infringement of the ‘325 Patent of sufficient
7
COMPLAINT
1 immediacy and reality to warrant the issuance of a declaratory judgment as to

2 whether the asserted claim of the ‘325 Patent is infringed.
3 52. CCC seeks and is entitled to a declaratory judgment that the
4 manufacture, importation, offer for sale, sale and use of the Accused Product does
5 not infringe the ‘325 Patent.
6 53. CCC seeks and is entitled to a declaratory judgment that neither it, nor
7 its customers, infringe the ‘325 Patent, either literally or under the doctrine of
8 equivalents.
9 54. CCC seeks and is entitled to a declaratory judgment that neither it, nor
10 its customers, have induced others to infringe or contributed to the infringement by
11 others of the ‘325 Patent, either literally or under the doctrine of equivalents. A
12 judicial declaration is necessary and appropriate so that CCC may ascertain its
13 rights or responsibilities regarding the ‘325 Patent and the Accused Product.
14 COUNT 2
15 Declaratory Judgement of Invalidity of the ‘325 Patent
18 56. The design purportedly claimed in the ‘325 Patent does not qualify for
19 patent protection. For example and without limitation, the ‘325 Patent is invalid as
20 anticipated and/or obvious in view of the prior public use and sale of the Teddy
21 Bear pet costume from Rubies, which was widely available for sale on
22 Amazon.com more than one year prior to the effective filing date of the ‘325
23 Patent.
24 57. As a direct and proximate result of Defendant’s complaints to Amazon
25 asserting the invalid ‘325 Patent against CCC’s Accused Product, CCC has suffered
26 damages that are substantial, continuing and irreparable.
27 58. An actual controversy exists between CCC and Defendant regarding
28 the validity of the ‘325 Patent.
8
COMPLAINT
1 59. CCC seeks and is entitled to declaratory judgment that the ‘325 Patent
2 is invalid for failure to satisfy one or more conditions of patentability. Without
3 such declaratory relief, CCC is and will continue to be irreparably harmed and
4 damaged.
5 COUNT 3
6 Declaratory Judgment of Unenforceability of the ‘325 Patent
9 61. On June 4, 2017, when Eugenia Judy Chen and her attorney, Stanton
10 Braden from Mu Patents, filed the patent application that later issued as the ‘325
11 Patent, they knew that the Teddy Bear pet costume from Rubies, and CCC’s
12 Gingerbread Pup costume, were widely available for sale in the marketplace.
13 62. Ms. Chen and Mr. Braden were aware of their duty of candor to the
14 U.S. Patent and Trademark Office (“USPTO”) to disclose all known and relevant
15 prior art.
16 63. Upon information and belief, Ms. Chen and Mr. Braden knew that the
17 Teddy Bear and/or Gingerbread pet costumes were material to patentability of the
18 ‘325 Patent, and that the USPTO would not have issued the ‘325 Patent had it been
19 aware of either of these prior art costumes.
20 64. Ms. Chen and Mr. Braden made a deliberate decision not to disclose
21 the Teddy Bear or Gingerbread pet costumes to the patent examiner and thus
22 committed fraud upon the USPTO.
23 65. Ms. Chen’s and Mr. Braden’s conduct before the USPTO was
24 inequitable and the ‘325 Patent is unenforceable.
25 66. As a result of Pandaloon asserting the unenforceable ‘325 Patent
26 against CCC’s Accused Product listings on Amazon, CCC has suffered damages
27 that are substantial, continuing and irreparable.
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9
COMPLAINT
1 67. An actual controversy exists between CCC and Defendant as to

2 whether the ‘325 Patent is unenforceable.
3 68. CCC is entitled to a declaratory judgment that the ‘325 Patent is
4 unenforceable due to Ms. Chen’s and Mr. Braden’s inequitable conduct before the
5 USPTO. Without such declaratory relief, CCC is and will continue to be
6 irreparably harmed and damaged.
7 COUNT 4
8 Intentional Interference with Prospective Economic Advantage
11 70. CCC had an existing and ongoing economic relationship with its
12 resellers that had the probability of future economic benefit to CCC from sales of
13 the Accused Product to its resellers, and by those resellers on Amazon.
14 71. Defendant was aware of the relationships between CCC, these resellers
15 and Amazon. Defendant specifically targeted CCC’s Accused Product listings on
16 Amazon for each reseller.
17 72. Defendant filed complaints with Amazon in which it knowingly made
18 false and misleading statements that the ‘325 Patent was valid and infringed by
19 CCC’s Accused Product.
20 73. Defendant’s false and misleading statements to Amazon disrupted
21 CCC’s relationships with its resellers and Amazon. Amazon disabled the product
22 listings for CCC’s Accused Product, preventing CCC and its resellers from selling
23 the Accused Product.
24 74. Defendant’s false and misleading statements have thus proximately
25 caused substantial, continuous and irreparable harm to CCC.
26 COUNT 5
27 Unfair Competition
28 (Cal. Bus. & Prof. Code §§ 17200, et seq.)
10
COMPLAINT
1 75. CCC incorporates the foregoing paragraphs by reference as though set

2 forth fully herein.
3 76. Defendant has engaged in unfair competition in violation of the
4 California Unfair Competition Law (“UCL”) by engaging in the unlawful conduct
5 alleged above.
6 77. As a result of Defendant’s unfair competition, CCC has been injured in
7 fact and lost money or property, including without limitation lost sales of the
8 Accused Products.
9 78. Defendant’s conduct has caused damages to CCC that are substantial,
10 continuing, and irreparable. CCC and its resellers have sustained economic harm
11 and continue to face the real and imminent threat of continuing and future harm
12 from Defendant’s unfair competition.
13 79. CCC is entitled to injunctive relief enjoining the unfair competition,
14 restitution and other appropriate equitable relief under UCL §§ 17203-04.
15 PRAYER FOR RELIEF
16 WHEREFORE, CCC respectfully requests that the Court:
17 1. Issue a declaration that CCC’s Accused Product has not infringed, and is
18 not infringing, either directly or indirectly, the ‘325 Patent;
19 2. Issue a declaration that the ‘325 Patent is invalid;
20 3. Issue a declaration that the ‘325 Patent is unenforceable;
21 4. Order that Defendant and any of its agents are restrained and enjoined
22 from filing or pursuing any infringement claims on Amazon that allege
23 the Accused Product infringes the ‘325 Patent;
24 5. Order that Defendant is restrained and enjoined from further unfair
25 competition;
26 6. Award CCC its damages attributable to Defendant’s unwarranted
27 infringement claims in an amount equal to compensate CCC for its
28 economic losses;
11
COMPLAINT
1 7. Award CCC restitution in an amount equal to the value of the money or

2 property taken by Defendant from CCC or in which CCC has a vested
3 interest;
4 8. Award CCC its costs in this action;
5 9. Find that this is an exceptional case under 35 U.S.C. § 285 and award
6 CCC its reasonable attorneys’ fees; and
7 10. Order such other and further relief as this Court may deem just and
8 proper.
9 JURY DEMAND
10 In accordance with the Federal Rules of Civil Procedure 38 and Local Rule
11 38-1, CCC respectfully demands a trial by jury on all issues so triable.
12
Dated: February 12, 2021 Respectfully submitted,
13
LOZA & LOZA, LLP.
14
15
By:
16 Lena N. Bacani
17 Attorneys for Plaintiff California
Costume Collections, Inc.
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COMPLAINT
Case 2:21-cv-01323 Document 1-1 Filed 02/12/21 Page 1 of 14 Page ID #:14
EXHIBIT 1
MU PATENTS
PROTECT YOUR INVENTION
www.mupatents.com
August 29, 2019

via First Class Mail
California Costume Collections, Inc.
Headquarters
Attn: General Counsel/Chief Financial Officer
210 Anderson Street
Los Angeles, CA 90033
WITHOUTPREDJUDICE
Re: Patent Infringement - CEASE AND DESIST;

Patent Number: USD806325S
Attorney Reference No.: CHEN-004CD
Dear Sir or Madam:
We represent Pandaloon LLC ("Client"), owners ofUnjted States Design Patent number USD
806,325 (copy enclosed). Pandaloon LLC has invested substantial resources in its products, and
is affiliated with Shark Investors, LLC.
It has come to our Client's attention that a California Costume Collections, Inc., product that is
being advertised, listed, distributed and sold in the United States, is infringing on our Client's
patent USD 806,325. Our Client's patent is directed towards the ornamental design for a panda
pet costume, as shown and described in the enclosed patent.
The infringing California Costume Collections, Inc., product, an example of which is listed
below, has been and is continuing to be advertised, listed, distributed, and sold in the United
States by Califorrua Costume Collections, Inc., across various platforms (both online and
physically in stores), without our Client's permission or authorization.
Our Client provides a list of non-exhaustive examples of infringing California Costume

Collections, Inc., products below:
3525 Del Mar Heights Road, Suite 135 San Diego, California 92130 T: (858) 263-7554
www rnupatents.com
Online platforms:
Product sold by online distributors
1. "PANDA PUPPET COSTUME" sold on WholesaleHalloweenCostumes.com:

https ://www. who! es al ehal Ioweencostum es. com/products/panda-pooch-pet-costume
2. "California Costumes Collections PET20163 Apparel for Pets" sold on Amazon.com:

https ://www.amazon.com/Cal iforni a-Costumes-Coll ecti ons-PET20 l 63-
Apparel/ d p/B07D 5KCXLX
3. "California Costumes Panda Bear Pooch Plush Pets Dogs Halloween Costume
PET20163" Sold on FearlessApparel.com:
https://www.fearlessapparel.com/california-costumes-panda-bear-pooch-plush-pets-dogs-
halloween-costume-pet20163/
4. "California Costumes PET20163 Panda Pooch Dog Costumes" sold on Veetrends.com:

https://www.veetrends.com/p-10599-california-costumes-pet20163-panda-pooch-dog-
costumes.aspx
5. "California Costumes Panda Pooch Pet Costume" sold on Sears.com:

https ://www.sears.com/cal ifornia-costumes-panda-pooch-pet-costume/p-A0283 76615
6. "Panda Pooch Pet Costume" sold on WalMart.com:

https://www.walmart.com/ip/Panda-Pooch-Pet-Costume/217921203
7. "CALIFORNIA COSTUMES PANDA POOCH PET COSTUME" sold on

Rakuten.com:
https://www.rakuten.com/shop/pure-
costumes/product/20 l 63BlackWhite/?rtg=7edfcf8cb4256fl f0ce8e8d 161a78c2f&l-
id=Product YouMayAlsoLike widget 19
On behalf of our Client, we demand that California Costume Collections, Inc., Cease and Desist
from this conduct immediately, and comply with the required actions described below.
CEASE AND DESIST
In view of the foregoing, we demand that California Costume Collections, Inc., immediately
cease and desist from any advertising, listing, distribution, selling, or offering for sale, of the
MU PATENTS
PROTECT YOUR INVENTION
www.rnupatents com
infringing California Costume Collections, Inc., product listed above.
Also, by September 6, 2019, we demand that California Costume Collections, Inc.

(1) Stop listing, selling, offering for sale, distributing and/or advertising the infringing California
Costume Collections, Inc., product;
(2) Remove all infringing California Costume Collections, Inc., products from all United States
stores (both online and physical store locations);
(3) Produce an accounting of all items that California Costume Collections, Inc., has listed,
purchased, manufactured, sold, advertised, or used in any way, which infringe on Pandloon
LLC's intellectual property rights; and
(4) Contact us in writing to confirm that California Costume Collections, Inc., has complied with
the above requests.
We request that California Costume Collections, Inc., direct any communication to us directly
and do not contact our Client directly on this matter. Our Client seeks to resolve this entire
dispute without resort to formal court action, and requests that California Costume Collections,
Inc., contact us to arrange for settlement negotiations. However, our Client reserves the right to
act in any manner necessary to vindicate its rights, including formal legal proceedings if a
satisfactory outcome cannot be arranged.
This letter is written without prejudice to any other rights or remedies our Client may possess.
Very truly yours,

MU Patents
ft (Cjll
Glenn E. Von Tersch
M
Enclosures: as stated
3525 Del Mar Heights Road. Suite 135 San Diego, California 92130 T: (858) 263-7554
1~11111111111
11111
I1111111111111111 111111111111111111
lllll1~11111111111
US00D806325S
c12) United States Design Patent c10) Patent No.: US D806,325 S

Chen (45) Date of Patent: ** Dec. 26, 2017
(54) PET COSTUME D7S8,046 S • 6/2016 Grant ............................. D2/741

D774,706 S 12/2016 Smith
D778,994 S • 2/2017 Johnson ....................... D21/604
(71) Applicant: Eugenia Judy Chen, Burbank, CA 2013/0023351 Al• 1/2013 Kanemaru .............. A63J 7/00S
(US) 472/84
(72) Inventor: Eugenia Judy Chen, Burbank, CA

(US) OTHER PUBLICATIONS
"YouTube: Funny Panda Puppy Halloween Costume Original

(**) Term: 15 Years
Video". Found online Jul. 14, 2017 at youtube.com. Page datedOct.
31, 2016. Retrieved from https://www.youtube.com/
(21) Appl. No.: 29/606,387
watch?v=UNsEinjNvMU. •
(22) Filed: Jun. 4, 2017 (Continued)
(51) LOC (10) CJ. ............................................... 30-01 Primary Examiner - Robert M. Spear
(52) U.S. Cl.
Assistant Examiner - Kendra Leslie Hamilton
USP<: ......................................................... D30/14S
(74) Attorney, Agent, or Finn- Mu P.C.
(58) Field of Classification Search
USP<: .............. D30/144, 145, 146, 151, 161, 199;
D24/124, 190; D2/718, 719, 860, 864, (57) CLAIM
D2/896, 909, 919; D21/604, 605
CPC ............................... A63J 7/005; AOlK 13/006 The ornamental design for a pet costume, as shown and
See application file for complete search history. described.
(56) References Cited

DESCRIPTION
U.S. PATENTDOCUMENTS
FIG. 1 is a front perspective view of a pet costume showing
3,742,679 A • 7/1973 Jordan ........ ......... AOlK 13/006
119/850
my new design;
3,918,238 A • 11/1975 Iozzio ...... ............ AOlK 13/006 FIG. 2 is a front elevational view thereof;
119/850 FIG. 3 is a rear elevational view thereof;
D349,532 S • 8/ 1994 Philippi ... ... ...... ... .... .... D21/605 FIG. 4 is a left side elevational view thereof;
D365,915 S • 1/1996 Merkley ........................ D2/719 FIG. Sis a right side elcvational view thereof;
0404,851 S • 1/1999 Braun .......................... D30/145
6,119,635 A • 9/2000 Powell-Lesnick ... AOlK 13/006
FIG. 6 is a top plan view thereof;
119/850 FIG. 7 is a bottom plan view thereof; and,
0448,818 S • 10/2001 Evanosky ... ...... ...... ..... D21/604 FIG. 8 is a top-front perspective view thereof, shown in
0487,836 S • 3/2004 Cowdin ... ... ... ... ...... .... ... D2/719 condition of use.
7,004,113 Bl 2/2006 Zutis et al. The broken lines showing of a dog in FIG. 8 represents
D561,410 S 2/2008 Katz
D590,456 S • 4/2009 Jones ........................... D21/605
unclaimed environmental subject matter and form no part of
8,210,131 B2 7/2012 Friedland the claim.
D688,423 S • 8/2013 Berghoff ...................... D30/14S
D736,482 S 8/2015 Lapresca 1 Claim, 8 Drawing Sheets
..
......
:·
US D806,325 S
Page 2
(56) References Cited
OTHER PUBLICATIONS
"Adorable Panda Sighting at California Beach". Found online Jul.
13, 2017 at rumble.com. Page dated Dec. 15, 2016. Retrieved from
https://rumble.com/v32vml-panda-attaclcs-califomia-beach.html. •
"Vid We Love: Munchkin the Teddy Bear Dog Walles Into a Puddle
of Awws". Found online Jul. 13, 2017 at dogster.com. Page dated
Jan. 8, 2015. Retrieved from http://www.dogster.com/the-scoop/
munchkin-teddy-bear-costume-dog-cute-videos. •
"Rubies Costume Company Walking Teddy Bear Pet Sur... Found
online Jul. 13, 2017 at amazon.com. Page dated Aug. 5, 2016.
Retrieved from https:/ /www.amazon.com/Wa1king-Teddy-Bear-
Suit-Large/dp/B01C4K93R4/ref=cm_cr_arp_d_product_
top?ie=UTFS. •
* cited by examiner
U.s.Patent Dec. 26, 2017 Sheet 1 of 8 US D806,325 S
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EXHIBIT 2
p ~{;, Lena N. Bacani, Esq.
305 N. Second Avenue, #127, Upland, CA 91786
213.394.3625 (direct line/fax)
~·
LOZA & LOZA
1 lena.bacani@lozaip.com | www.lozaip.com ANINTELLECTUAL
PROPERTY
SOLUTIONS
FIRM
For Settlement Purposes Only – FRE 408
September 1, 2020
VIA EMAIL AND FIRST CLASS MAIL

Glenn E. Von Tersch
MU Patents
3525 Del Mar Heights Rd., Ste. 135
San Diego, CA 92130
Email: glenn@mupatents.com
Re: Pandaloon U.S. Patent D806,325
Dear Mr. Tersch:
We are intellectual property litigation counsel for California Costume Collections, Inc.
(“CCC”) and write in response to your August 29, 2019 letter and Pandaloon LLC’s recent
complaints to Amazon against several of CCC’s customers.
CCC respects the intellectual property rights of others. Accordingly, CCC asked us to
thoroughly consider Pandaloon’s allegations that one of CCC’s pet costumes infringes
Pandaloon’s U.S. design patent, D806,325 (“the ‘325 Patent”). For at least the reasons set forth
herein, we find Pandaloon’s infringement allegations totally without merit.
The ‘325 Patent is Invalid and Unenforceable
Founded in 1995, CCC is a costume design and manufacturing company based in Los
Angeles, California. CCC’s products are designed locally in the United States; including
conceptual design, sketching, patenting, sizing, form-fitting, pre-production, sample production,
photography and artwork. In 2010, CCC developed and marketed a line of Pet Costumes which
were introduced commercially in 2011. Since then, CCC has produced over 60 unique styles of
pet costumes. In 2011, CCC developed, and put into commerce in 2012, a series of costumes
that featured faux front limbs and a body suit covering the actual front limbs, creating an illusion
of a stand up dog. Since 2012, CCC has developed over 10 styles of pet costumes using the
same concept.
CCC has been selling its Gingerbread Pup costume (see Exhibit A attached) since
December 2013. A cursory search of CCC’s Amazon reviews for this product shows sales of the
costume on the Amazon marketplace at least as early as October 2015. See
https://www.amazon.com/dp/B00J48XAJM?th=1 and https://www.amazon.com/California-
Costume-Collections-Gingerbread-Large/product-
reviews/B00J48XAJM/ref=cm_cr_dp_d_show_all_btm?ie=UTF8&reviewerType=all_reviews.
Chicago, IL | Dallas, TX | Los Angeles, CA | Phoenix, AZ | Salt Lake City, UT | San Jose, CA | San Diego, CA | Washington, D.C
' ~(:,
Case 2:21-cv-01323 Document 1-2 Filed 02/12/21 Page 3 of 9 Page IDPandaloon
#:30 LLC
September 1, 2020
Page 2 of 4
It t
LOZA & LOZA
yz 2
Tho body was perfect but hat was bit big and floppy
Reviewed 1nthe United States on October 4, 20 5
1:e: diUm Vari ed Purchasa
The body was perfect but hat was a bit big and Ooppy,doesn hold shape well. I'm thinking of putting extra roam
so it stays.
4 people round this helpful
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ti
The Gingerbread Pup costume features many of the design elements claimed in the ‘325
Patent, including the round face opening, oversized rounded head and body shape, faux front
limbs and character “legs” that enclose the pet’s front legs. CCC’s Gingerbread Pup costume
was being sold more than a year prior to the earliest effective filing date of the ‘325 Patent and is
prior art.
Many more examples of prior art are immediately apparent. See, e.g., the Teddy Bear pet
costume from Rubies, which was available for sale at least as early as February 23, 2016. See
https://www.amazon.com/Walking-Teddy-Bear-Suit-
Medium/dp/B01C4K93TW/ref=sr_1_3?dchild=1&keywords=teddy%2Bbear%2Bpet%2Bcostu
me&qid=1598918622&sr=8-3&th=1. A picture of the costume also appears below.
#:31 LLC
September 1, 2020
Page 3 of 4
Despite their wide availability, none of these costumes were disclosed to the patent
examiner by Pandaloon. The fact that the costumes do not feature black and white “panda”
markings does not limit their applicability as prior art given that the ‘325 Patent is not so limited.
All parties associated with prosecution of the ‘325 Application were required to disclose any
information known that may have been material to the patentability of the claimed invention
pursuant to 37 C.F.R. § 1.56. Failure to disclose such information constitutes inequitable
conduct that renders the patent unenforceable. See, e.g., Critikon, Inc. v. Becton Dickinson
Vascular Access, Inc., 120 F.3d 1253, 1256-57 (Fed. Cir. 1997) (inferring intent where applicant
was aware of a prior art reference and “knew or should have known” that information in that
reference was relevant to a claimed point of novelty).
It is disturbing that Pandaloon has made such reckless infringement allegations against
CCC and CCC’s customers given this readily available prior art. Even a cursory search prior to
sending its takedown notices to Amazon would have revealed these, and similar costumes,
predate the earliest filing date of the ‘325 Patent. Pandaloon’s filing of takedown notices with
Amazon against CCC’s customers shows either a complete failure to conduct a pre-suit
investigation or deliberately anticompetitive conduct in violation of California Business &
Professions Code § 17200.
CCC’s Pet Costumes Do Not Infringe
Even if the ‘325 Patent was valid, which it is not, it is not infringed by CCC’s products.
As you are undoubtedly aware, design patents cover only the ornamental designs of an article,
and not any of the functional elements. 35 U.S.C. § 171, Egyptian Goddess v. Swisa, Inc., 543
F.3d 665 (Fed. Cir. 2008).
An ordinary observer, familiar with the prior art, looking at CCC’s Panda Pooch costume,
would not be deceived into thinking that it was the same as the design in the ‘325 Patent. See id.
While both feature a bear shape with “false arms,” CCC’s costume has a much fuzzier nap,
#:32 LLC
p ~{i7 September 1, 2020
Page 4 of 4
Lt t
LOZA & LOZA
giving it an overall shaggy appearance that clearly distinguishes it from Pandaloon’s Panda
costume. (See Exhibit B.)
Additionally, CCC’s costume head is a separate, detachable hood that is not attached to
the costume body, unlike the ‘325 Patent design. Also, the CCC costume does not have a
drawstring around the hood face, but instead a fixed single needle finish stitched opening with a
front Velcro closure. (See id.) The CCC costume ears are two-fold with a white fabric inset,
rather than the one-fold, half circle shape claimed in the ‘325 Patent. CCC’s Panda costume
head has a smaller circumference in proportion to the costume body whereas the head on the
Pandaloon’s costume is much larger, giving it a very different look that is clearly distinguishable
to an ordinary observer.
The horizontal front seam that extends to the back of the costume that is claimed in the
’325 Patent is not present in CCC’s Panda costume, which has a center Velcro closure. The back
closures (see Fig. 7 of ‘325 Pat.) are also different. The Panda Pooch costume has ties rather
than a drawstring and no drawstring stopper. In addition, the faux arms of the Panda Pooch
costume attach to the neck seam rather than the side seam as required by the ‘325 Patent.
For at least the following reasons, CCC’s Panda Pooch costume does not infringe the
‘325 Patent and CCC rejects Pandaloon’s demands.
Given the above, CCC demands that Pandaloon immediately withdraw its infringement
allegations against CCC and CCC’s customers and send a retraction of its complaints to Amazon
at notice-dispute@amazon.com, including for the following:
 Envy Body Shop, ASIN B07D5JR1CM (Complaint ID 7248948401)
 Pure Costumes, ASIN B07D5KCXLX (Complaint ID 7248948411)
 Da Bane Pone Inc., ASIN B07D5JR1CM (Complaint ID 7248948401)
Please confirm that you have taken the above action no later than September 8, 2020. If
we do not hear from you by then, we will be forced to take legal action. Our proposal to resolve
this matter without resort to litigation is for settlement purposes only. Nothing in this letter shall
be deemed a waiver of, prejudice, or otherwise limit any of CCCs rights and remedies, all of
which are expressly reserved.
Sincerely,
Lena N. Bacani
EXHIBIT A
PET20133
G1NGERBREAD PuP
• HOOD
• COSTUME WITH ATTACHE □ ARMS
ANO LEGS
XS. S. M. L
EXHIBIT B
Pandal Panda Pooch
1. Hood attached to body

2. Drawstring around hood face
Hood dettached to body
1.
3. Arm attached at side seam Single needle finished stitch

2.
4. Ear one folded at hood face

5. Center back drawstrings 3. Center front velcro closure
5. White drawstring 4. Arm attached at body neck seam
6. Center back raw finish 5. Ear two folded w/ white inset
7. Drawstring stopper 6. Center back tie cords
8. Leg hem felt facing 7. Black tie cords
9. Bamboo leaf attatchment 8. Center back overlock finish
10. Hear left hand patch
9. Leg raw finish

California Costume Collections v. Pandaloon - Complaint

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Case 2:21-cv-01323 Document 1 Filed 02/12/21 Page 1 of 13 Page ID #:1

1 Lena N. Bacani (SBN 213556)

1 Plaintiff California Costume Collections, Inc. (“CCC” or “Plaintiff”), by and

1 activities in this District directed to manufacturing, importing, offering to sell,

1 23. On or around August 2020, CCC was contacted by three of its

1 immediacy and reality to warrant the issuance of a declaratory judgment as to

1 67. An actual controversy exists between CCC and Defendant as to

1 75. CCC incorporates the foregoing paragraphs by reference as though set

1 7. Award CCC restitution in an amount equal to the value of the money or

August 29, 2019

Re: Patent Infringement - CEASE AND DESIST;

Dear Sir or Madam:

Our Client provides a list of non-exhaustive examples of infringing California Costume

Product sold by online distributors

1. "PANDA PUPPET COSTUME" sold on WholesaleHalloweenCostumes.com:

2. "California Costumes Collections PET20163 Apparel for Pets" sold on Amazon.com:

4. "California Costumes PET20163 Panda Pooch Dog Costumes" sold on Veetrends.com:

5. "California Costumes Panda Pooch Pet Costume" sold on Sears.com:

6. "Panda Pooch Pet Costume" sold on WalMart.com:

7. "CALIFORNIA COSTUMES PANDA POOCH PET COSTUME" sold on

CEASE AND DESIST

infringing California Costume Collections, Inc., product listed above.

Also, by September 6, 2019, we demand that California Costume Collections, Inc.

Very truly yours,

c12) United States Design Patent c10) Patent No.: US D806,325 S

(54) PET COSTUME D7S8,046 S • 6/2016 Grant ............................. D2/741

(72) Inventor: Eugenia Judy Chen, Burbank, CA

"YouTube: Funny Panda Puppy Halloween Costume Original

(56) References Cited

(56) References Cited

U.s.Patent Dec. 26, 2017 Sheet 1 of 8 US D806,325 S

U.s.Patent Dec. 26, 2017 Sheet 2 of 8 US D806,325 S

U.S. Patent Dec. 26, 2017 Sheet 3 of 8 US D806,325 S

U.S. Patent Dec. 26, 2017 Sheet 4 of 8 US D806,325 S

U.S. Patent Dec. 26, 2017 Sheet 5 of 8 US D806,325 S

U.S. Patent Dec. 26, 2017 Sheet 6 of 8 US D806,325 S

U.S. Patent Dec. 26, 2017 Sheet 7 of 8 US D806,325 S

U.S. Patent Dec. 26, 2017 Sheet 8 of 8 US D806,325 S

For Settlement Purposes Only – FRE 408

VIA EMAIL AND FIRST CLASS MAIL

Re: Pandaloon U.S. Patent D806,325

Dear Mr. Tersch:

The ‘325 Patent is Invalid and Unenforceable

4 people round this helpful

CCC’s Pet Costumes Do Not Infringe

 Envy Body Shop, ASIN B07D5JR1CM (Complaint ID 7248948401)

 Pure Costumes, ASIN B07D5KCXLX (Complaint ID 7248948411)

 Da Bane Pone Inc., ASIN B07D5JR1CM (Complaint ID 7248948401)

Pandal Panda Pooch

1. Hood attached to body

3. Arm attached at side seam Single needle finished stitch

4. Ear one folded at hood face

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