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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ----------------------------------------------------------X : KIMBERLY HOLMES, : Civil Action No. 12-10157 : Plaintiff, : : COMPLAINT AND DEMAND FOR -against: JURY TRIAL : REBECCA GOLDSMITH, Individually and : doing business as DESERT DIAMOND : CROCHET, LLC, : : Defendants. ----------------------------------------------------------X COMPLAINT 1. Plaintiff, Kimberly Holmes, (Plaintiff or Holmes), for her Complaint against

Rebecca Goldsmith ("Goldsmith" or (Defendant), individually and doing business as Desert Diamond Crochet, LLC ("Desert" or Defendant), alleges as follows: NATURE OF THE ACTION 2. This is an action for continued and willful infringement of Holmes intellectual property

rights, including copyright infringement arising out of the production, distribution, sale and offer for sale by Defendants of a derivative work of the Copyright registered doll entitled Lu the Amigurumi Devil. JURISDICTION AND VENUE 3. This action arises under the copyright laws of the United States, specifically 17 U.S.C.

101 et seq and the statutes and common law of the Commonwealth of Massachusetts, specifically Massachussests General Law M.G.L. c. 93A.

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4.

This Court has subject matter jurisdiction over the claims asserted in this Complaint

pursuant to 28 U.S.C. 1331 and 28 U.S.C. 1338(a) and (b). This Court also has supplemental jurisdiction over the pendent state law claims pursuant to 28 U.S.C. 1367(a). 5. Personal jurisdiction is proper because the Defendants have consented to jurisdiction in

the Commonwealth of Massachusetts. Exhibit A. 6. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391 and 1400(a). PARTIES 7. Plaintiff, Kimberly Holmes, is an individual residing at 16 North River Road, Scituate,

Massachusetts 02066. 8. Defendant, Rebecca Goldsmith, is an individual residing at 5751 Snow Creek Point #201,

Colorado Springs, Colorado 80915. 9. Defendant, Desert Diamond Crochet, LLC, is a limited liability company with a principal

place of business at 5751 Snow Creek Point #201, Colorado Springs, Colorado 80915. GENERAL ALLEGATIONS I. 10. 11. HOLMESS BUSINESS AND COPYRIGHT

Holmes creates original works of visual arts in the form of crotchet dolls. In January of 2010, Plaintiff Holmes first created the Lu the Amigurumi Devil

(hereinafter Lu) doll. The design of the doll is the original authorship of Holmes. Exhibit B. 12. Since creating the Work, Holmes has created derivative works based on the original

design, including Maximus the Lion, Benton the Bunny, Cluny the St Paddy's Day Cow, Qinling the Giant Panda Cub, Sneeze the Siamese and The Amigurumi Graduate Aedan. 13. Over the course of the last two years Holmes has sold Lu on the internet at sites such as

Ravelry.com and etsy.com.

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14.

On January 10, 2012, Holmes applied to register the copyright in Lu. Holmes proprietary

copyright in Lu was registered with the Copyright Office on January 18, 2012, under the following registration: Title Lu the Amigurumi Devil II. 15. DEFENDANTS INFRINGEMENT Registration No. VA 1-799-542

On April 19, 2011, Defendants purchased Lu, along with a few other Holmes works from

the internet site ravelry.com. 16. Upon information and belief, on or soon after April 19, 2011, Defendants copied, altered,

made a derivative work, publicly display, promote, distribute, off for sale, and sell copies of Lu (Infringing Works) to the general public, including on or through the websites, www.etsy.com and www.raverly.com (Infringing Websites). 17. At all times thereafter, Defendants knew, or should reasonably have known, that they

lacked permission or authority to copy, re-create, display publicly, alter or otherwise make derivative works of Lu, or to sell or offer for sale re-created, altered, or re-made copies of Lu. 18. Upon information and belief, on or soon after April 19, 2011, Defendants have continued,

continue, and appear intent on continuing in the future, unless required to stop, to copy, alter make a derivative work, publicly display, promote, distribute, offer for sale, and sell copies of the Infringing Works to the general public. 19. Defendants have intentionally infringed the aforementioned intellectual property rights of

the Plaintiff through the sale and offer for sale of the Infringing Works, including identical and derivative works.

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20.

Attached hereto as Exhibit C are true and accurate copies of pages from Infringing

Websites (all as of the dates they bear) that promote and offer for sale the Infringing Work by the Defendants. As seen on these sites the Defendants are offering for sale both identical copies of Lu and derivatives based on Lu. III. 21. PLAINTIFFS CEASE AND DESIST LETTER

On January 2, 2012, Plaintiff, Holmes, upon discovering the Defendants sale of the

infringing works on etsy.com, sent a letter to the legal department at etsy.com to inform them of the infringing items being sold on the site. Exhibit D. 22. 23. Defendants were provided notice of the infringement by etsy.com. On January 9, 2012, counsel for the Defendants wrote Holmes a letter denying any

infringement of Lu. Exhibit E. 24. Upon information and belief, Defendants have committed the infringing acts complained

of willfully and with conscious disregard for Holmes rights in Lu. COUNT I (Copyright Infringement) 25. 26. Plaintiff, Holmes, restates the allegations of 1 through 23 as if fully alleged here. Lu the Amigurumi Devil is an original work under the Copyright Act and is subject to

copyright protection under 17 U.S.C. 101, et seq. 27. 28. 29. Holmes is the owner and holder of U.S. Copyright Registration No. VA 1-799-542. The Copyright Registration specifically covers Lu created by Holmes. Holmes has complied with all the requirements under 17 U.S.C. 101, et seq to acquire

and maintain her copyright and have fully complied with the registration requirements for the copyrighted works as set out in 17 U.S.C. 411. 30. At all times relevant herein, Defendants have had access to Lu.

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31.

Defendants have made copies, published, publically displayed, and made derivative

works of Lu and sold copies (not under the first sale doctrine) of Lu and/or derivative works thereof, all without the Plaintiffs authorization. 32. Upon information and belief, Defendants actions were willful with full knowledge of the

infringing nature of such actions. 33. Defendants acts as above alleged, constitute infringement of Plaintiffs copyright in Lu

under 17 U.S.C. 501. 34. Holmes has been injured by Defendants infringement of Holmes copyright. COUNT II (Injunctive Relief) 35. 36. Plaintiff, Holmes, restates the allegations of 1 through 33 as if fully alleged here. Based upon the foregoing information, Plaintiff, Holmes has suffered and will continue to

suffer irreparable damages unless it is granted injunctive relief by the Court. 37. If Holmes is unable to stop further and continuing infringement of her registered

copyright, she will suffer irreparable damages. For this harm and damage, Holmes has no adequate remedy at law. These damages are continuing, and due to a large degree will be incalculable. 38. Holmes is entitled to injunctive relief restraining and enjoining the Defendants from the

following continuing infringing and unlawful acts, and Holmes therefore requests the Court to enter an injunction enjoining the Defendants and their respective agents, servants and employees, and those acting in concert with them, from the following: i. Defendants shall immediately cease reproducing, distributing, displaying publicly, creating, advertising, offering for sale or selling copies of the Infringing Work or Lu;

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ii.

Defendants shall immediately cease reproducing, distributing, displaying or creating derivative works of the Infringing Works and/or Lu; and

iii.

Defendants shall immediately surrender to Holmes any copies of the Infringing Works and Lu in their possession, custody and control. COUNT III (Unfair or Deceptive Acts and Practices Under M.G.L. c.93A)

39. 40.

Plaintiff, Holmes, restates the allegations of 1 through 37 as if fully alleged here. Plaintiff and Defendants are engaged in the conduct of trade and commerce within the

meaning of Chapter 93A of the Massachusetts General Laws. 41. The foregoing conduct by Defendants constitutes unfair or deceptive acts and practices

within the meaning of Chapter 93A. 42. Through the unfair acts and practices described above, Plaintiff has been, and continues

to be, damaged by Defendants. 43. Defendants have profited thereby, and unless its conduct is enjoined, Plaintiff will

continue to suffer irreparable injury that cannot adequately be calculated or compensated by monetary damages 44. Accordingly, Plaintiff seeks injunctive relief pursuant to Section II of Chapter 93A of the

Massachusetts General Laws. 45. By infringing Plaintiffs copyright registration in Lu in connection with the sale, offering

for sale, and/or advertising of goods and/or services to the general public in connection with Local content, Defendants have violated Plaintiffs rights. 46. Accordingly, Plaintiff is entitled to judgment in an amount equal to three times its

damages, together with reasonable attorneys fees, pursuant to Mass. Gen. Laws. c. 93A 11.

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PRAYER FOR RELIEF WHEREFORE, Plaintiff, Holmes requests a trial by jury and pray the Court grants the following relief: A. Judgment declaring the Defendants have willfully infringed Plaintiff, Holmes

copyrights in Lu; B. That Defendants, their respective agents, servants, employees, attorneys and all

other in active concert or participation with them, including any and all third party product manufactures, distributors and suppliers who receive actual notice of the order or judgment by any method: (1) Be preliminarily and permanently enjoined and restrained from

reproducing, distributing, displaying publicly, creating, advertising, offering for sale, or selling copies of the Infringing Works of Lu; (2) Be preliminarily and permanently enjoined and restrained from reproducing, distributing, displaying or creating derivative works of the Infringing Works and/or Lu; and, (3) Be preliminarily and permanently enjoined and restrained from palming off Lu as their own. C. Judgment ordering the Defendants to destroy all digital files, computer programs

and any and all means employed to create the Defendants infringing products, as well as catalogs, brochures, signs, advertisements, labels, prints, wrappers, packages, website content offering for sale Defendants infringing products in the Defendants possession, custody or control pursuant to 17 U.S.C. 503;

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D.

Judgment requiring the Defendants to pay Plaintiff all profits realized as a result

of the unlawful infringing acts as complained of herein pursuant to 17 U.S.C. 504; E. Judgment requiring the Defendants to compensate Plaintiff for all actual damages

suffered by Plaintiff as a result of the Defendants unlawful, infringing acts as complained of herein pursuant to 17 U.S.C. 504; and, F. Judgment awarding such other relief to Plaintiff as this Court deems fair and just. JURY DEMAND Plaintiff demands a trial by jury on all issues so triable.

Respectfully submitted, KIMBERLY HOLMES By its Attorneys, Dated: January 27, 2012 /s/ Gary E. Lambert Attorneys for Plaintiff Gary E. Lambert BBO# 548303 Brendan M. Shortell BBO# 675851 Lambert & Associates 92 State Street Suite 200 Boston, MA 02109 Telephone: 617.720.0091 Facsimile: 617.7206307 Lambert@lambertpatentlaw.com