Advantek Marketing v. Shanghai Walk-Long Tools - Complaint

Case 2:16-cv-03061 Document 1 Filed 05/04/16 Page 1 of 10 Page ID #:1
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JAYE G. HEYBL (CA Bar No. 167,110)

BRIAN M. FITZGERALD (CA Bar No. 267,279)
KOPPEL PATRICK HEYBL & PHILPOTT
2815 Townsgate Road, Suite 215
Westlake Village, California 91361
Telephone: (805) 373-0060
Facsimile: (805) 373-0051
[email protected]
[email protected]
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K. ANDREW KENT (CA Bar No. 130,097)

RINCON VENTURE LAW GROUP
Telephone: (805) 557-0580
Facsimile: (805) 373-0051
[email protected]
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Attorneys for Plaintiff

14 ADVANTEK MARKETING, INC.
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION
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ADVANTEK MARKETING, INC.,
CASE NO. 16-cv-3061

COMPLAINT FOR DAMAGES AND
INJUNCTIVE RELIEF FOR:
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Plaintiff,
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vs.
PATENT INFRINGEMENT [35

U.S.C. 271]
SHANGHAI WALK-LONG TOOLS CO.,

LTD.; NEOCRAFT TOOLS CO., LTD.;
23 ORION FACTORY DIRECT, and DOES
1-10 inclusive,
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DEMAND FOR JURY TRIAL
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Defendant.
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COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF AND DEMAND FOR JURY TRIAL
Plaintiff Advantek Marketing, Inc. ("Advantek" or "Plaintiff") is a seller of animal
related products worldwide, including the well-recognized Pet GazeboTM line of animal
housing products. Advantek brings this action seeking injunctive relief and damages on
account of patent infringement by Defendants SHANGHAI WALK-LONG TOOLS CO.,
LTD. (Walk-Long), NEOCRAFT TOOLS CO., LTD. (Neocraft), ORION FACTORY
DIRECT (Orion), and DOES 1 through 10, inclusive. Plaintiff alleges as follows:
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JURISDICTION AND VENUE

1.
This is an action for patent infringement arising under the patent laws of the
United States, Title 35, United States Code, including 35 U.S.C. 1, et seq.
2.
This Court has subject matter jurisdiction over this action pursuant to 28
U.S.C. 1331 and 1338.

3.
This Court has personal jurisdiction over Defendants because they have
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committed one or more of the infringing acts complained of herein in California and in this
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district, they have marketed and sold infringing products in California and in this district,
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and on information and belief they do regular business in California and in this district.
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This Court has personal jurisdiction over Defendants because, among other things,
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Defendants conduct business in the State of California and in this judicial district and thus
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enjoy the privileges and protections of California law.
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4.
Venue in this Court is proper at least under the provisions of 28 U.S.C.
1400(b), because Defendants have committed acts of infringement in this District.
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PARTIES
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Advantek is an active California corporation with its principal place of
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business at 5400 Tech Circle, Suite 101, Moorpark, CA 93021. Advantek does business in
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the Central District of California.
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6.
On information and belief, Walk-Long is a Chinese corporation with its
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principal place of business in China at 898 Songhua Road, Qingpu Industrial Park,
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Shanghai, 201706. On information and belief, Walk-Long does business in the Central
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District of California.
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On information and belief, Neocraft is a Chinese corporation and a subsidiary
of Walk-Long, with its principal place of business in China at 898 Songhua Road, Qingpu
Industrial Park, Shanghai, 201706. On information and belief, Neocraft does business in
the Central District of California.
8.
On information and belief, Orion is a Chinese corporation and a subsidiary of
Neocraft, with its principal place of business in China at 898 Songhua Road, Qingpu
Industrial Park, Shanghai, 201706, and its principal place of business in the United States
at 11902 Elm Street, Suite 6D, Omaha, Nebraska 68144. On information and belief, Orion
does business in the Central District of California.
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9.
Plaintiff does not know the true names and capacities, whether individual,
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corporate, associate, or otherwise, of the defendants named herein as DOES 1 through 10,
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inclusive. Plaintiff therefore sues them by use of fictitious names. Plaintiff is informed and
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believes that Walk-Long, Neocraft and Orion, and Doe Defendants 1 through 10 are
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affiliated in some manner with Walk-Long, Neocraft and Orion, and have direct,
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contributory, or vicarious responsibility for the wrongful acts as alleged herein. Plaintiff
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will amend this Complaint appropriately once the true names and capacities of Doe
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Defendants 1 through 10 are learned. As used below, the term Defendants shall
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collectively refer to the named defendant, Walk-Long, Neocraft and Orion, together with
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the defendants identified as DOES 1 through 10.
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10.
On information and belief, at all times herein mentioned, each of the
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Defendants was the agent of each of the remaining Defendants, and in doing the things
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alleged herein, was acting within the scope of such agency. On information and belief, the
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conduct of each of the Defendants as alleged herein was ratified by each of the other
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Defendants, and the benefits thereof were accepted by each of the other Defendants.
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11.
On information and belief, each of the Defendants induced the other
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Defendants to infringe upon Plaintiffs rights, participated in, and enabled the other
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Defendants to engage in the unlawful conduct herein alleged, or supervised that conduct,
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with knowledge that the conduct of other Defendants would infringe upon Plaintiffs rights,
and constitute unfair competition and false and deceptive actions. Therefore each of the
Defendants is jointly and severally liable as a contributory or vicarious infringer of
Plaintiffs rights.
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FACTUAL BACKGROUND
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Advantek is a world-recognized leader in animal-containment solutions
ranging from humane catch-and-release animal traps to pet housing products. Advanteks
flagship products include its line of Pet GazeboTM products, which are among their best-
selling products worldwide. An image of one of Advanteks Pet GazeboTM products is
shown below:
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Advantek Pet Gazebo
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13.
Joe Pomerantz invented an original and innovative Pet GazeboTM design and
applied for patent protection with the United States Patent and Trademark Office
(USPTO). The USPTO granted the patent as US Design Patent D715,006 (the 006
patent), which issued on October 7, 2014. Mr. Pomerantz assigned the rights to his patent
to Advantek; Advantek continues to be the owner by assignment of the entire right, title
and interest in the 006 patent. A true and correct copy of the 006 patent is attached to
this complaint as Exhibit 1.
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14.
On information and belief, Defendants engage in the importation, marketing,
distribution, and sale of various products, including a product described as the Pet
Companion Outdoor Pet Kennel (product in question).
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The shape and design of the product in question are substantially similar to
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the patented design as set forth in the 006 patent, such that an ordinary observer, taking
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into account the prior art, would believe the accused product in question to be the same as
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the patented design. Images of the two products are shown side by side below:
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The 006 Patent
Defendants Pet Companion Product
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FIRST CAUSE OF ACTION
(INFRINGEMENT OF THE 006 PATENT; Against all Defendants; 35 U.S.C.
271)
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Plaintiff realleges and incorporates by reference the full text of all of the
foregoing numbered paragraphs, photographs, figures, and tables as though each such
paragraph, photograph, figure, and table has been fully set forth herein.
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On information and belief, Defendants have infringed and continue to infringe
the claimed design of the 006 patent under 35 U.S.C. 271(a-c), including but not limited
to by making, using, offering for sale, and/or selling the patented design without the
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authority of Advantek, and/or by contributing to and/or inducing such infringement of the
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006 patent.
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Additionally, on information and belief, Defendants infringe the 006 patent
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by making, using, selling, offering for sale or importing animal housing products, including
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without limitation the product in question, as well as Defendants other products and
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services incorporating animal housing products, and various versions thereof. By way of
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example only, and without limitation, Defendants infringe, literally and/or under the
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doctrine of equivalents, at least the claimed design of the 006 patent by making, using,
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selling, offering for sale or importing the Pet Companion animal housing product that is
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sold to and used by Defendants customers.
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Defendants do not have a license or permission to use the 006 patent.
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On information and belief, before their first acts of infringement, Defendants
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knew of Advanteks Pet GazeboTM line of products, knew these products design was
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patent-protected, knew the Pet Companion product was substantially similar in design in
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such manner as would infringe on the 006 patent, and knew Defendnats use of that design
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was unauthorized. Defendants nevertheless delibertly of in willful blindness carried out
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the acts of infringement described herein.
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21.
As a result of Defendants infringement of the 006 patent, Advantek has been
irreparably injured. Unless such infringing acts are enjoined by this Court, Advantek will
continue to suffer irreparable injury.

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damaged and will continue to damage Plaintiff, or is likely to damage Plaintiff.

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On information and belief, Defendants conduct as alleged above has

On information and belief, as a result of their conduct as alleged above,
Defendants have been unjustly enriched and have wrongfully profited.

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On information and belief, despite knowledge of the 006 patent, Defendants
will continue to infringe this patent with reckless disregard of the 006 patent, by
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continuing to infringe the patent when they knew or should have known that their actions
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constituted infringement of the claimed design of the 006 patent. Upon information and
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belief, Defendants have acted and/or are continuing to act despite an objectively high
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likelihood that their actions constitute direct and/or indirect infringement of a valid patent.
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///
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///
PRAYER FOR RELIEF
WHEREFORE, Plaintiff Advantek Marketing, Inc. prays for relief as follows:
A.
the 006 patent;
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Entry of judgment holding Defendants jointly and severally liable for
infringement of the 006 patent;

C.
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Entry of judgment against Defendants, and for Advantek, for infringement of
A post-judgment accounting of damages for the period of infringement of the
006 patent following the period of damages established by Advantek at trial;

D.
An order preliminarily and then permanently enjoining Defendants and their
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respective officers, directors, agents, servants, affiliates, employees, divisions, branches,
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subsidiaries, parents, and all others acting in active concert or participation with them, from
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continued acts of infringement of the 006 patent;

E.
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If a permanent injunction is not granted, a judicial determination of the
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conditions of future infringement such as a royalty bearing compulsory license or such
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other relief as the Court deems appropriate;

F.
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An order that Defendants be ordered to surrender for destruction of all
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products, containers, labels, advertisements, promotional materials, and other materials
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constituting an infringement of Plaintiffs patent or the means by which such infringement
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is facilitated;
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G.
That Plaintiff be awarded its damages according to proof;
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H.
That Plaintiff be awarded the profits acquired by Defendants through
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Defendants unlawful acts;

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and/or profits based on Defendants willfulness;

J. An order declaring that this is an exceptional case within the meaning of 35 U.S.C.
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That the Court increase and enhance by three times any award of damages
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K. An award of prejudgment interest, post-judgment interest, costs and
disbursements, and attorneys fees; and
L. Such other and further relief as the Court deems proper in law or equity.
Respectfully submitted,
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DATED: May 4, 2016
By:
/s/ Brian M. Fitzgerald

Telephone: (805) 373-0060
Facsimile: (805) 373-0051
[email protected]
[email protected]
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Telephone: (805) 557-0580
Facsimile: (805) 373-0051
[email protected]
ADVANTEK MARKETING, INC.
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DEMAND FOR JURY TRIAL
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure and Local Rule 38-
1, Plaintiff Advantek Marketing, Inc. hereby demands a trial by jury of any and all issues
triable of right by a jury pursuant to the Seventh Amendment to the United States
Constitution or as given by a statute of the United States.
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DATED: May 4, 2016
By: /s/ Brian M. Fitzgerald

Telephone: (805) 373-0060
Facsimile: (805) 373-0051
[email protected]
[email protected]
Telephone: (805) 557-0580
Facsimile: (805) 373-0051
[email protected]
ADVANTEK MARKETING, INC.
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Case 2:16-cv-03061 Document 1-1 Filed 05/04/16 Page 1 of 6 Page ID #:11

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Case 2:16-cv-03061 Document 1 Filed 05/04/16 Page 1 of 10 Page ID #:1

JAYE G. HEYBL (CA Bar No. 167,110)

K. ANDREW KENT (CA Bar No. 130,097)

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

ADVANTEK MARKETING, INC.,

CASE NO. 16-cv-3061

PATENT INFRINGEMENT [35

SHANGHAI WALK-LONG TOOLS CO.,

DEMAND FOR JURY TRIAL

Case 2:16-cv-03061 Document 1 Filed 05/04/16 Page 2 of 10 Page ID #:2

Plaintiff Advantek Marketing, Inc. ("Advantek" or "Plaintiff") is a seller of animal

account of patent infringement by Defendants SHANGHAI WALK-LONG TOOLS CO.,

LTD. (Walk-Long), NEOCRAFT TOOLS CO., LTD. (Neocraft), ORION FACTORY

JURISDICTION AND VENUE

U.S.C. 1331 and 1338.

enjoy the privileges and protections of California law.

Venue in this Court is proper at least under the provisions of 28 U.S.C.

1400(b), because Defendants have committed acts of infringement in this District.

Advantek is an active California corporation with its principal place of

the Central District of California.

On information and belief, Walk-Long is a Chinese corporation with its

Case 2:16-cv-03061 Document 1 Filed 05/04/16 Page 3 of 10 Page ID #:3

On information and belief, Neocraft is a Chinese corporation and a subsidiary

the Central District of California.

On information and belief, Orion is a Chinese corporation and a subsidiary of

does business in the Central District of California.

the defendants identified as DOES 1 through 10.

On information and belief, at all times herein mentioned, each of the

On information and belief, each of the Defendants induced the other

Case 2:16-cv-03061 Document 1 Filed 05/04/16 Page 4 of 10 Page ID #:4

Defendants is jointly and severally liable as a contributory or vicarious infringer of

Advantek is a world-recognized leader in animal-containment solutions

selling products worldwide. An image of one of Advanteks Pet GazeboTM products is

Advantek Pet Gazebo

Case 2:16-cv-03061 Document 1 Filed 05/04/16 Page 5 of 10 Page ID #:5

this complaint as Exhibit 1.

On information and belief, Defendants engage in the importation, marketing,

The 006 Patent

Defendants Pet Companion Product

Case 2:16-cv-03061 Document 1 Filed 05/04/16 Page 6 of 10 Page ID #:6

FIRST CAUSE OF ACTION

(INFRINGEMENT OF THE 006 PATENT; Against all Defendants; 35 U.S.C.

On information and belief, Defendants have infringed and continue to infringe

authority of Advantek, and/or by contributing to and/or inducing such infringement of the

Additionally, on information and belief, Defendants infringe the 006 patent

sold to and used by Defendants customers.

Defendants do not have a license or permission to use the 006 patent.

On information and belief, before their first acts of infringement, Defendants

was unauthorized. Defendants nevertheless delibertly of in willful blindness carried out

the acts of infringement described herein.

Case 2:16-cv-03061 Document 1 Filed 05/04/16 Page 7 of 10 Page ID #:7

As a result of Defendants infringement of the 006 patent, Advantek has been

continue to suffer irreparable injury.

damaged and will continue to damage Plaintiff, or is likely to damage Plaintiff.

On information and belief, Defendants conduct as alleged above has

Defendants have been unjustly enriched and have wrongfully profited.

On information and belief, despite knowledge of the 006 patent, Defendants