IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FUSIONBRANDS, INC.

, Plaintiff, v. NORPRO, INC., Defendant. ) ) ) ) ) ) ) ) )

CIVIL ACTION FILE NO. _________________ JURY TRIAL DEMANDED

COMPLAINT Plaintiff, FUSIONBRANDS, INC., (Plaintiff or Fusionbrands.) for its Complaint against Defendant, NORPRO, INC., (Defendant or Norpro) alleges as follows: PRELIMINARY STATEMENT 1. This case concerns the willful infringement of intellectual property.

Plaintiff, Fusionbrands, is the manufacturer of the Poachpod egg poacher, which is a flexible device that floats in boiling water and, among other things, poaches eggs. The owners of Fusionbrands, a husband and wife team, are inventors and designers who have assigned the intellectual property rights associated with this popular kitchen product to Fusionbrands. Launched only a few years ago, the Poachpod egg poacher has already received national and international design

awards, been sold in at least fourteen (14) world markets, and has been featured in national publications such as the New York Times and Bon Apptit Magazine. 2. Defendant Norpro is a Washington State corporation in the business

of manufacturing and selling kitchenware. Norpro sells knock-off silicone egg poachers through various retailers throughout the United States, including the Northern District of Georgia. These knock-off poaching products are sold through Defendants website, in stores, and through its catalogue to customers in the Northern District of Georgia. These sales have continued despite Defendants actual knowledge of the existence of the intellectual property rights of Fusionbrands. Defendant knowingly infringed on, contributed to the infringement of, and induced the infringement of Plaintiffs intellectual property rights. 3. Therefore, this is an action for infringement of United States Patent

No. US D556,501 S (the 501 Patent) and United States Patent No. US 7,754,261 B2 (the 261 Patent), pursuant to the United States Patent Act (35 U.S.C. 271). A copy of the 501 Patent is attached to this Complaint as Exhibit A, and a copy of the 261 Patent is attached to this Complaint as Exhibit B.

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PARTIES 4. Plaintiff FUSIONBRANDS, INC. (Fusionbrands) is the

manufacturer of the Poachpod egg poacher. 5. Plaintiff Fusionbrands is, and at all times mentioned herein was, a

corporation organized and existing under the laws of the State of Georgia. 6. Plaintiff is organized and existing in the State of Georgia, may be

contacted through the undersigned counsel, and served through its registered agent, CGA Admin, LLC, at 1000 Johnson Ferry Road, Suite A-125, Marietta, Georgia 30068. 7. Defendant Norpro is, and at all times mentioned herein was, a

corporation organized and existing under the laws of the State of Washington, having a principal place of business located at 2215 Merrill Creek Parkway, Everett, Washington 98203-5899. 8. Defendant Norpro may be served through its registered agent, Michael

A. Sills at 19105 85th Avenue Court East, Puyallup, Washington 98375.

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JURISDICTION AND VENUE 9. This is an action for pecuniary and injunctive relief for patent

infringement arising under the United States Patent Act, Title 35 of the United States Code, and for trade dress infringement arising under 43(a) of the Lanham Act, 15 U.S.C. 1125(a). 10. This Court has jurisdiction over the subject matter of this action as

provided for in 28 U.S.C. 1331 and 1338. Venue is proper in this District pursuant to 28 U.S.C. 1391 and 1400. This action arises out of the wrongful acts of Defendant in Georgia and elsewhere. 11. Upon information and belief, this Court has personal jurisdiction over

the Defendant in that it maintains several internet websites wherein it actively solicits business from, and completes sales with, customers in the Northern District of Georgia. Upon information and belief, Defendant sells products, or has caused products to be sold, and sends products, or has caused products to be sent, into the Northern District of Georgia. Further, Defendant has committed acts of patent infringement during the course of business in this District.

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FACTUAL BACKGROUND 12. On December 4, 2007, United States Patent No. D 556,501, entitled

Poach Pod, (the 501 Patent) was duly and legally issued on an application by Anna M. Stewart and Stephen (Kraigh) Stewart (hereinafter, the Stewarts). 13. On July 13, 2010, United States Patent No. 7,754,261 B2, entitled

Food Containment Cooking Device, (the 261 Patent) was duly and legally issued on an application by the Stewarts. 14. Fusionbrands is the owner of all right, title, and interest in and to the

501 Patent and the 261 Patent by virtue of an assignment recorded on November 2, 2010, from the Stewarts to Fusionbrands, Inc. 15. 16. 17. A copy of the 501 Patent is attached to this Complaint as Exhibit A. A copy of the 261 Patent is attached to this Complaint as Exhibit B. As a result of Plaintiffs substantial advertising and promotional

efforts, Plaintiff Fusionbrands has become widely known to consumers as the source of the Poachpod egg poacher. The Poachpod egg poacher is widely recognized by consumers as being associated with Plaintiffs high quality goods and has become synonymous with the goodwill and reputation of Plaintiff Fusionbrands.

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18.

Defendant makes, uses, sells, and/or offers to sell products that

infringe upon the claims of the 501 Patent and 261 Patent. 19. Defendant has manufactured, used, sold, offered for sale and/or

imported a product which is covered by the 501 Patent and the 261 Patent. 20. Since the introduction of the Poachpod design, Fusionbrands has

created, marketed and promoted the Poachpod in a variety of colors with one distinctive shape, all of which are marketed under the Poachpod name. Through extensive advertising and promotion of the Poachpod, its distinctive look has come to be associated with Fusionbrands as a single source. 21. Fusionbrands Poachpod thus features a distinctive and unique

combination of elements that collectively create a particular trade dress (The Poachpod Trade Dress). The Poachpod Trade Dress consists of a collection of design elements. The combination of all or almost all such elements together gives the Poachpod egg poacher a distinct overall look and commercial impression. These features include, but are not limited to, size, shape, colors, and texture. 22. The collection of features comprising the Poachpod egg poachers

distinct overall look constitutes a distinctive trade dress that has secondary meaning. This design has been extensively promoted by Fusionbrands in at least

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fourteen (14) world markets, and has achieved significant sales success. The public has come to recognize this design as distinctive of Fusionbrands products. The Poachpod Trade Dress is thus a means by which Fusionbrands is known to the public and the trade as the sole source and origin of the Poachpod egg poacher. 23. 24. The Poachpod Trade Dress is in no way functional. By way of example only, Defendant used a confusingly similar

ornamental design of the 501 Patent and the method of the 261 Patent for Defendants infringing goods, and manufactured, tested, and shipped a product that, while similar in design and shape, is inferior to the original. Photographs showing a side-by-side comparison of genuine Poachpod egg poachers to the knock-off products sold by Defendant are pictured below. Poachpod appears in the left of each photograph. The genuine

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25.

Defendant includes instructions with the infringing goods describing

in detail a step-by-step process their customers are encouraged and intended to use in poaching eggs with their product. 26. As laid out more fully below, Defendant has been and is now

infringing the 501 Patent and the 261 Patent in this judicial district and elsewhere, by making, using, selling, offering for sale and/or importing its products and services, which individually or in combination incorporate and/or use the subject matter claimed by the 501 Patent and the 261 Patent. 27. By the actions alleged in Paragraph 26, Defendant is inducing its

customers to infringe the 261 Patent, and is contributing to the infringement by its customers of the 261 Patent. 28. Upon information and belief, such activities were done willfully and

knowingly, knowing that certain of Defendants products were based upon a

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design copied from the Poachpod and that such products are confusingly similar to the Poachpod egg poacher. 29. Defendant has not sought nor has it received a license or authorization

from Fusionbrands for any purpose whatsoever, including for the acts described herein. 30. Defendant was advised of the existence of both the 501 Patent and

the 261 Patent and has refused to voluntarily refrain from selling infringing products. See Exhibit C. 31. Unless enjoined from continuing to do the acts complained of herein,

Defendant will continue to do so, causing damage and irreparable harm to Fusionbrands and its business. Fusionbrands is thus without an adequate remedy at law. FIRST CAUSE OF ACTION FOR PATENT INFRINGEMENT (the 501 Patent) 32. Plaintiff repeats and hereby incorporates herein by reference, as

though specifically pleaded herein, the allegations of the preceding paragraphs. 33. The aforementioned acts of Defendant in making, using, selling,

offering for sale and/or importing the infringing products constitute infringement of the 501 Patent in violation of 35 U.S.C. 271.

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34.

Defendants acts of infringement have been and continue to be

knowing, deliberate, and willful. Such acts have caused damage and irreparable harm to Fusionbrands and will continue to do so unless and until such acts are enjoined by this Court. 35. Upon information and belief, Defendant will continue to infringe the

501 Patent unless enjoined by this Court. 36. The infringement of the 501 Patent has injured Plaintiff. Plaintiff is

entitled to recover damages in an amount that adequately compensates Plaintiff for Defendants such infringement, which, in no event, can be less than a reasonable royalty. 37. Plaintiffs ongoing business has suffered from the infringement of

Defendant, and has lost and will continue to lose profits as a result of the Defendants infringement. 38. Plaintiff has no adequate remedy at law against these acts of patent

infringement. Unless Defendant is permanently enjoined from its unlawful and willful infringement of the 501 Patent, Plaintiff will suffer irreparable harm. 39. Plaintiff has incurred and will incur attorneys fees, costs, and

expenses in the prosecution of this action. The circumstances of this dispute create

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an exceptional case within the meaning of 35 U.S.C. 285, and Plaintiff is entitled to recover its reasonable and necessary fees and expenses. SECOND CAUSE OF ACTION FOR PATENT INFRINGEMENT (the 261 Patent) 40. Plaintiff repeats and hereby incorporates herein by reference, as

though specifically pleaded herein, the allegations of the preceding paragraphs. 41. Claim 1 of the 261 Patent relates to a method of poaching an egg

and comprises a variety of elements. 42. Upon information and belief, at all times relevant herein, Defendant

has been and is infringing the 261 Patent by making, using, selling, offering for sale, and/or importing into the United States, without authority, products that fall within the scope of the claim of the 261 Patent. 43. Defendant has also infringed claim 1 of the 261 Patent by knowingly,

intentionally, and actively inducing others to infringe, by contributing to the infringement of others, and by intentionally aiding, assisting, and encouraging the infringement of others through the making, using, sale, and offer for sale of at least its Silicone Egg Poachers. On information and belief, Defendants have

knowledge that at least its Silicone Egg Poachers are used in practicing the method claimed in the 261 Patent, constitutes a material part of the invention, is

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especially made or adapted for use in an infringement of the 261 Patent, and is not suitable for substantial non-infringing use. 44. Upon information and belief, Defendant will continue to infringe the

261 Patent unless enjoined by this Court. 45. The infringement, contributory infringement, and inducement to

infringe of the 261 Patent has injured Plaintiff. Plaintiff is entitled to recover damages in an amount that adequately compensates Plaintiff for Defendants such infringement, which, in no event, can be less than a reasonable royalty. 46. Plaintiffs ongoing business has suffered from the infringement of

Defendant, and has lost and will continue to lose profits as a result of the Defendants infringement. 47. Plaintiff Fusionbrands has no adequate remedy at law against these

acts of patent infringement. Unless Defendant is permanently enjoined from its unlawful and willful infringement of the 261 Patent, Plaintiff Fusionbrands will suffer irreparable harm. 48. Plaintiff Fusionbrands has incurred and will incur attorneys fees,

costs, and expenses in the prosecution of this action. The circumstances of this dispute create an exceptional case within the meaning of 35 U.S.C. 285, and

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Plaintiff Fusionbrands is entitled to recover its reasonable and necessary fees and expenses. THIRD CAUSE OF ACTION FOR TRADE DRESS INFRINGEMENT 49. Plaintiff repeats and hereby incorporates herein by reference, as

though specifically pleaded herein, the allegations of the preceding paragraphs. 50. Defendant has reproduced, copied, and imitated the Poachpod Trade

Dress in designing certain of its products in a manner that is confusingly similar to the distinctive trade dress of the Poachpod egg poacher. 51. Defendants adoption and use of the Poachpod Trade Dress

constitutes trade dress infringement and deliberate and willful violations of Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a). 52. The actions and conduct of the Defendant complained of herein have

damaged Plaintiff and will, unless restrained, further impair, if not destroy, the value of the Poachpod Trade Dress and the goodwill associated therewith. 53. Upon information and belief, Defendant will continue to infringe the

Poachpod Trade Dress unless enjoined by this Court. 54. The infringement of the Poachpod Trade Dress has injured Plaintiff.

Plaintiff is entitled to recover damages in an amount that adequately compensates Plaintiff for Defendants such infringement.

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55.

Plaintiffs ongoing business has suffered significantly from the

infringement of Defendant, and has lost and will continue to lose profits as a result of the Defendants infringement. 56. Plaintiff Fusionbrands has no adequate remedy at law against these

acts of trade dress infringement. Unless Defendant is permanently enjoined from its unlawful and willful infringement of the Poachpod Trade Dress, Plaintiff Fusionbrands will suffer irreparable harm. REQUESTED RELIEF WHEREFORE, Plaintiff prays for entry of a judgment in favor of Plaintiff and against Defendant which: A. Declares that the 501 Patent and the 261 Patent are valid and enforceable; B. Declares that Defendants have infringed, induced others to infringe, and/or committed acts of contributory infringement, with respect to the claims of the 501 Patent and the 261 Patent; C. Enters a temporary, preliminary, and thereafter permanent, injunction enjoining Defendant, its officers, agents, servants, employees, attorneys, parents, subsidiaries, affiliates, successors, and all others in active concern or participation with them or acting on their behalf,

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from infringing the 501 Patent and the 261 Patent, from inducing others to infringe, and from contributing to infringement by others; D. Requires Defendant to deliver up to Plaintiff for destruction any and all goods in its possession that infringe upon the patents identified herein; E. Awards costs and damages adequate to compensate Plaintiff for the infringement that has occurred, but in no event less than a reasonable royalty as permitted by 35 U.S.C. 284; F. Finds that Defendants infringement has been willful, and awards increased damages to Plaintiff as provided by 35 U.S.C. 284; G. Awards to Plaintiff its expenses, costs, and attorneys fees pursuant to 35 U.S.C. 285; H. Awards a temporary, preliminary, and thereafter permanent injunction permanently enjoining Defendant, its officers, agents, servants, employees, attorneys, parents, subsidiaries, affiliates, successors, and all others in active concern or participation with them or acting on their behalf: a. From using in any manner the Poachpod Trade Dress, alone or in combination with any other words or designs, in a manner

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likely to cause confusion, deception, or mistake on or in connection with advertising, offering for sale or sale of any goods not manufactured by Fusionbrands, or not authorized by Fusionbrands to be sold in connection with its respective marks; b. From representing, suggesting in any fashion to any third party, or performing any act that may give rise to the belief that Defendant, or any of its goods, are authorized or sponsored by Fusionbrands; c. From passing off, inducing or enabling others to sell or pass off any goods as products produced by Plaintiff that are not in fact genuine Fusionbrands goods, or not produced under the control and supervision of Fusionbrands and approved by

Fusionbrands; and d. From otherwise competing unfairly with Plaintiff in any manner. I. Requires Defendant to deliver up to Plaintiff for destruction, any and all goods in its possession or under its control that were or are being advertised, promoted, offered for sale or sold in connection with the

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Poachpod Trade Dress, whether alone or in combination with any words or designs. J. Requires Defendant to deliver up to Plaintiff for destruction, any and all catalogs, circulars, and other printed material in its possession or under its control displaying or promoting the goods that were or are being advertised, promoted, offered for sale or sold in connection with the Poachpod Trade Dress, whether alone or in combination with any words or designs. K. Requires Defendant, pursuant to 15 U.S.C. 1116(a) to file with the Court and serve upon the Plaintiff, within thirty (30) days of the entry of any injunction prayed for herein, a written report under oath or affirmed under penalty of perjury setting forth in detail the form and manner in which it has complied with the permanent injunction. L. Requires Defendant, pursuant to 15 U.S.C. 1117, to account to Plaintiff for any and all profits derived by it, and for all damages sustained by Plaintiff by reason of Defendants actions complained of herein, including an award of treble damages as provided for by statute. M. Awards damages to Plaintiff to which it is entitled for its lost profits;

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N.

Grants Plaintiff pre-judgment and post-judgment interest on each and every damage award;

O.

Awards Plaintiff its expenses, costs, and attorneys fees pursuant to 15 U.S.C. 1117.

P.

Grants Plaintiff such other and further relief as the case may require and the Court may deem just and proper. JURY DEMAND

In accordance with Fed. R. Civ. P. 38 (b), Plaintiff hereby demands a trial by jury. [SIGNATURE PAGE TO FOLLOW]

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Respectfully submitted this 30th day of August, 2011.

/s/ Mary Donne Peters MARY DONNE PETERS Georgia Bar No. 573595 mpeters@gorbypeters.com MICHAEL J. GORBY Georgia Bar No. 301950 mgorby@gorbypeters.com JEFFREY D. COOPER Georgia Bar No. 478395 jcooper@gorbypeters.com Attorneys for Plaintiff GORBY, PETERS & ASSOCIATES, LLC Two Ravinia Drive, Suite 1500 Atlanta, Georgia 30346 404-239-1150 404-239-1179 (fax)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FUSIONBRANDS, INC., Plaintiff, v. NORPRO, INC., Defendant. ) ) ) ) ) ) ) ) )

CIVIL ACTION FILE NO. _________________ JURY TRIAL DEMANDED

CERTIFICATION The Undersigned hereby certifies that the text of this document has been prepared with Times New Roman 14 point, one of the fonts and point selections approved by the Court in Local Rule 5.1B. [SIGNATURE PAGE TO FOLLOW]

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Respectfully submitted this 30th day of August, 2011.

/s/ Mary Donne Peters MARY DONNE PETERS Georgia Bar No. 573595 mpeters@gorbypeters.com MICHAEL J. GORBY Georgia Bar No. 301950 mgorby@gorbypeters.com JEFFREY D. COOPER Georgia Bar No. 478395 jcooper@gorbypeters.com Attorneys for Plaintiff GORBY, PETERS & ASSOCIATES, LLC Two Ravinia Drive, Suite 1500 Atlanta, Georgia 30346 404-239-1150 404-239-1179 (fax)

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