Covves v. BigMouth - Complaint

Case 2:18-cv-08518 Document 1 Filed 10/03/18 Page 1 of 16 Page ID #:1
1 Stephen C. McArthur (State Bar No. 277712)

[email protected]
2 Valerie McConnell (State Bar No. 274159)
[email protected]
3 THE MCARTHUR LAW FIRM, PC
11400 W. Olympic Blvd. Ste. 200
4 Los Angeles, CA 90064
Telephone: (323) 639-4455
5
Attorneys for Plaintiff
6 COVVES, LLC
7
8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA
10
11 COVVES, LLC, Case No. 2:18-cv-8518

12 Plaintiff, COMPLAINT FOR DESIGN
PATENT INFRINGEMENT
13 v.
14 BIGMOUTH INC., an Indiana
Corporation;
15 BIGMOUTH LLC., an Indiana Limited DEMAND FOR JURY TRIAL
Liability Company;
16 THE FUNTREPRENEUR INC., a
Massachusetts Corporation;
17 DILLARDS, INC. a Delaware
Corporation;
18 KOHL’S CORPORATION, a
Wisconsin Corporation;
19 SAKS & COMPANY LLC., a
Delaware Corporation
20 SCHEELS ALL SPORTS, INC., a
North Dakota Corporation;
21 TARGET BRANDS, INC. a Minnesota
Corporation;
22 TAYLORED VENTURES, INC. (dba
PERPETUAL KID) a Virgina
23 Corporation;
and
24 ZULILY, INC. a Delaware
Corporation.
25
Defendants.
26
27
28
COMPLAINT FOR
DESIGN PATENT INFRINGEMENT
-1- Case No.
1 Plaintiff Covves, LLC alleges as follows for its Complaint for Patent
2 Infringement arising under the Patent Laws of the United States, 35 U.S.C. § 1, et
3 seq., against Defendants BigMouth LLC and BigMouth Inc. (collectively
4 “BigMouth Defendants” or “BigMouth”) and The Funtrepreneur Inc, Dillards, Inc,
5 Kohl’s Corporation, Saks & Company LLC, Scheels All Sports, Inc., Taylored
6 Ventures, Inc. (dba Perpetual Kid), Target Brands, Inc, and Zuliliy, Inc.
7 (collectively, the “Retailer Defendants”, and all Defendants are collectively referred
8 to as the “Defendants”).
9 THE PARTIES
10 1. Plaintiff Covves, LLC (“Covves”) is a limited liability company, duly
11 organized and existing under the laws of the State of California, located at 23145
12 Kashiwa Court, Torrance, California 90505.
13 2. Defendant BigMouth LLC is a limited liability company, organized and
14 existing under the laws of the State of Indiana, with a principal place of business
15 located at 655 Winding Brook Drive Glastonbury, CT 06033.
16 3. Defendant BigMouth Inc. is a corporation, organized and existing under
17 the laws of the state of Indiana, with a principal place of business located at 10201
18 N. Illinois St. Suite 200, Indianapolis, IN 46290.
19 4. Upon information and belief, Defendant The Funtrepreneur Inc. is a
20 corporation, organized and existing under the laws of the state of Massachusetts,
21 with an address of 100 Cummings Center Suite 125-G Beverly, MA 01915.
22 5. Upon information and belief, Defendant Dillard’s Inc. is a corporation,
23 organized and existing under the laws of the state of Delaware, with an address of
24 6. Upon information and belief, Defendant Kohl’s Corporation is a
25 corporation, organized and existing under the laws of Wisconsin, with an address
26 of N56W17000 Ridgewood Dr. Menomonee Falls, WI 53051.
27 7. Upon information and belief, Defendant Saks & Company LLC is a
28 limited liability company, organized and existing under the laws of the state of
COMPLAINT FOR
-2- Case No.
1 Delaware, with an address of 225 Liberty Street 31st Floor, New York City, New
2 York State 10281-0097
3 8. Upon information and belief, Defendant Scheels all Sports, Inc. is a
4 corporation, organized and existing under the laws of the North Dakota, with an
5 address of 4550 15th Ave S. Fargo, ND 58103-8959.
6 9. Upon information and belief, Defendant Taylored Ventures, Inc. (dba
7 Perpetual Kid) is a corporation, organized and existing under the laws of Virginia,
8 with an address of 23007 Eagle Watch CT. Ashburn, VA 20148.
9 10. Upon information and belief, Defendant Target Brands, Inc. is a
10 corporation, organized and existing under the laws of Minnesota, with an address
11 of 1010 Dale St N St Paul, MN 55117.
12 11. Upon information and belief, Defendant Zulily, Inc. is a corporation,
13 organized and existing under the laws of Delaware, with an address of 2601 Elliot
14 Ave, Suite 200, Seattle, WA.
15 JURISDICTION AND VENUE
16 12. This Court has subject matter jurisdiction over this action pursuant to 28
17 U.S.C §§ 1331 and 1338(a).
18 13. Upon information and belief, this Court has specific personal jurisdiction
19 over BigMouth because BigMouth has placed infringing goods into the stream of
20 commerce with the expectation that they would be purchased in the State of
21 California and/or otherwise has purposefully directed activities toward the State of
22 California related to the sale of infringing goods and has actually sold its infringing
23 goods to customers in Los Angeles.
24 14. This Court has personal jurisdiction over the Retailer Defendants because
25 they do substantial business and sales in this District and advertise, distribute, offer
26 for sale and sell the infringing products in this District. The Retailer Defendants
27 have committed tortious acts in this District against Plaintiff, whose principle place
28
COMPLAINT FOR
-3- Case No.
1 of business is located in this District.

2 15. Venue for this action is proper in the Central District of California
3 pursuant to 28 U.S.C. §§ 1391(b), (c) and 1400(b).
4 PATENTS-IN-SUIT
5 16. United States Patent Number D787,617 (the “D’617” patent) is titled
6 “Inflatable Toy” and was filed on August 24, 2015, and was duly and validly
7 issued by the United States Patent and Trademark Office on May 23, 2017. A true
8 and correct copy of the D’617 patent is attached to and incorporated herein as
9 Exhibit 1.
10 17. United States Patent Number D783,370 (the “D’370” patent) is titled
11 “Inflatable Beverage Holder” and was filed on November 8, 2016, and was duly
12 and validly issued by the United States Patent and Trademark Office on April 11,
13 2017. A true and correct copy of the D’370 patent is attached and incorporated
14 herein as Exhibit 2.
15 18. Covves is the owner by assignment of all right, title, and interest in the
16 D’617 patent and the D’370 patent (collectively, the “Patents-in-Suit”), including
17 all rights to sue and collect for past, present, and future damages.
18 BIGMOUTH’S WILLFUL INFRINGEMENT
19 19. Covves sells high-quality inflatable pool toys under the “Kololo”,
20 “#Floaty”, and “#GetFloaty” brand names.
21 20. Covves’ invented the unicorn pool float and popularized it worldwide as
22 one of the most popular inflatable pool toys of 2016 and 2017. This toy has a
23 unique patented design, which is protected by the D’617 patent.
24 21. Covves also sells a popular Mini Unicorn Cup Holder with a unique
25 design protected by the D’370 patent.
26 22. Adult-sized unicorn floats and mini cupholder unicorn floats did not exist
27 before Covves invented and popularized them.
28 23. Covves practices both of the Patents-in-Suit domestically and worldwide,
COMPLAINT FOR
-4- Case No.
1 selling products embodying the patents from various channels including its website
2 (https://kololo.co/), wholesale (https://www.floatywholesale.com/), and from
3 online retailers, including Amazon.com
4 (https://www.amazon.com/FLOATY/b/ref=bl_dp_s_web_14394022011?ie=UTF8
5 &node=14394022011&field-lbr_brands_browse-bin=FLOATY).
6 24. Covves has over 35,000 followers on its Instagram
7 (https://www.instagram.com/kololo.co/?hl=en), which primarily consists of
8 photographs of products that embody the Patents-in-Suit.
9 25. Covves unicorn floats embodying the Patents-in-Suit have been featured
10 on The Today Show, Vogue, Elite Daily, Popsugar, and Harper’s Bazaar, among
11 many other outlets.
12 26. Covves has a history of arms-length licensing deals with third parties,
13 licensing the unicorn pool floats for $10.00 per float and the unicorn cupholders
14 for $1.00 per cupholder.
15 27. Attempting to capitalize on Covves’ hard work, intellectual property, and
16 success, and without compensating Covves or obtaining a license, BigMouth
17 Defendants illegally and willfully misappropriated the patented design of Covves’
18 Giant Unicorn to create an imitation unicorn pool float, which is sold under
19 various names including: “Giant Unicorn Pool Float”, “Giant Sparkly Unicorn
20 Pool Float”, and “Sparkles The Unicorn Lil’ Float” (collectively, the “BigMouth
21 Unicorn Floats”).
22 28. The BigMouth Unicorn Floats can be found for sale online at the
23 following links: https://www.bigmouthinc.com/products/giant-unicorn-pool-float-
24 3/, https://www.bigmouthinc.com/products/giant-unicorn-pool-float-2/, and
25 https://www.bigmouthinc.com/products/sparkles-the-unicorn-lil-float/.
26 29. A side-by-side comparison shown below reveals that BigMouth
27 Defendants misappropriated Plaintiff’s patented unicorn float designs (D’617) with
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COMPLAINT FOR
-5- Case No.
1 its BigMouth Unicorn Floats accused products.

2
10
11 30. The image above is demonstrative of the similarity. Both feature a raft
12 body with an elongated neck. Atop the neck rests a head affixed with a horn, two
13 pointed ears, and a mane. The mane begins behind the horn and rests atop the head
14 and neck between the pointed ears. A tail is affixed to the rear of the raft body.
15 Although there are countless embodiments BigMouth Defendants could have
16 employed i.e. non-pointed ears, a curved horn, a spiked mane, a tail of any
17 different shape, etc. BigMouth Defendants instead copied Covves’ design nearly
18 identically.
19 31. Pictured below is Plaintiff’s “Giant Unicorn” product (left) and
20 BigMouth Defendants’ “Giant Unicorn” product (right).
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28 32. BigMouth Defendants also illegally misappropriated the patented design

COMPLAINT FOR
-6- Case No.
1 of its Mini Unicorn Cup Holder to create an imitation unicorn beverage holder,
2 which is sold under the name “Unicorn Beverage Boats.” The BigMouth Unicorn
3 Beverage Boats can be found on sale here:
4 https://www.bigmouthinc.com/products/unicorn-beverage-boats-2/
5 33. A side-by-side comparison shown below reveals that BigMouth
6 Defendants misappropriated Plaintiff’s patented Inflatable Beverage Holder
7 (D’370) with its Unicorn Beverage Boats accused product.
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17 34. The image above is demonstrative of the similarity. Both feature a

18 rounded body with a rounded empty space in the center. Affixed to the body is an
19 elongated neck. Atop the neck rests a head affixed with a horn, two pointed ears,
20 and a mane. The mane begins behind the horn and rests atop the head and neck.
21 The eye is comprised of a black circle, containing a smaller white circle. A tail is
22 affixed to the rear of the rounded body. Although there are countless embodiments
23 BigMouth Defendants could have employed i.e. non-pointed ears, a curved horn, a
24 spiked mane, a tail of any different shape, etc., BigMouth Defendants instead
25 copied Covves’ design nearly identically.
26 35. Below is a side-by-side of Plaintiff’s “Mini Unicorn Cupholder” product
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COMPLAINT FOR
-7- Case No.
1 (left) and BigMouth Defendants’ “Unicorn Beverage Boat” product (right):

2
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12 36. A claim chart comparing both of the Patents-in-Suit to each of the

13 Infringing Products is attached as Exhibit 3.
14 37. The designs of the Infringing Products are substantially the same as the
15 Patents-in-Suit such as to deceive an ordinary observer into inducing him or her to
16 purchase BigMouth Defendants’ Infringing Products supposing them to be
17 Plaintiff’s.
18 38. BigMouth’s conduct in making, using, selling, offering to sell and/or
19 importing the Infringing Products directly infringes the D’617 and D’370 patents.
20 39. BigMouth’s infringement of the Patents-in-Suit in connection with the
21 BigMouth Unicorn Floats and the Unicorn Beverage Boats (collectively the
22 “Infringing Products”) is willful.
23 40. Prior to the filing of this Complaint, Covves provided BigMouth copies
24 of the D’617 and D’370 patents during discussions regarding the enforcement of
25 the D’370 Patent against BigMouth’s infringing Unicorn Beverage Boats product
26 on Amazon.com.
27 41. BigMouth’s attorney emailed Plaintiff’s counsel on March 22, 2018,
28 regarding the removal of the infringing listing on Amazon.com. A true and correct
COMPLAINT FOR
-8- Case No.
1 copy of the emails between Plaintiff’s counsel and BigMouth’s counsel is attached
2 and incorporated herein as Exhibits 4 and 5.
3 42. In response, Plaintiff sent BigMouth copies of the Patents-in-Suit and
4 informed BigMouth that it “infringes [Plaintiff’s] design patents filed in 2015 and
5 2016” and that “Covves created the unicorn float and the unicorn cupholder and
6 registered the IP to protect it. [Defendants] blatantly copied it and competes with a
7 cloned product.”
8 43. Accordingly, BigMouth has had actual knowledge of Plaintiff’s Patents-
9 In-Suit since, at the very latest, March 22, 2018.
10 44. Nevertheless, BigMouth has since re-listed the Unicorn Beverage Boat
11 on Amazon but removed “unicorn” from the title in order to avoid detection.
12 45. To this day, BigMouth Defendants continue to sell their infringing
13 products in blatant disregard of Covves’ patents and of Covves’ March 2018 notice
14 that BigMouth is infringing.
15 46. Plaintiff applied for the D’617 patent on August 24, 2015 and the D’370
16 patent on November 8, 2016. The D’370 patent was issued on April 11, 2017, and
17 the D’617 patent was issued a month later on May 23, 2017.
18 47. By contrast, a record of BigMouth’s website, www.bigmouthinc.com,
19 captured by the Internet Archive Wayback Machine, shows that BigMouth was
20 not selling its Infringing Products as of November 26, 2017, which is long after the
21 issuance dates of the Patents-in-Suit.
22 48. Similarly, the Unicorn Beverage Boat did not appear on BigMouth
23 Defendants’ Instagram page until March 12, 2018, and none of the BigMouth
24 Unicorn Floats appeared on BigMouth Defendants’ Instagram page until April 9,
25 2018.
26 49. Therefore, based on the foregoing public records and on information and
27 belief, BigMouth first began selling its infringing BigMouth Unicorn Floats online
28 after it received notice of Covves’ Patents-in-Suit on March 22, 2018, and long
COMPLAINT FOR
-9- Case No.
1 after Plaintiff’s Mini Unicorn Cupholder first appeared on Covves’ website on

2 August 17, 2016.
3 50. BigMouth has actual knowledge of the Patents-in-Suit and knows or
4 should know that its Infringing Products and its conduct in relation to the
5 Infringing Products infringe the Patents-in-Suit. Accordingly, BigMouth’s
6 infringement is and has been willful, wanton, malicious, bad-faith, deliberate,
7 consciously wrongful, made with reckless disregard, and/or flagrant.
8 ADDITIONAL INFRINGEMENT BY RETAILER DEFENDANTS
9 51. The Retailer Defendants have also infringed Plaintiff’s patent rights by
10 continuing to sell, distribute and advertise the Infringing Products. For example,
11 Retailer Defendants offer the Infringing Products for sale at the following links:
12 • The Funtrepreneur: https://alwaysfits.com/products/giant-glitter-magical-
13 unicorn-pool-float
14 • Dillards: https://www.dillards.com/p/bigmouth-inc.-unicorn-pool-
15 float/507916390?di=05329766_zi_multi&categoryId=-
16 10005&facetCache=pageSize%3D96%26beginIndex%3D0%26orderBy%3D
17 1
18 • Kohl’s: https://www.kohls.com/product/prd-3207539/bigmouth-inc-3-pack-
19 1-bonus-beverage-boats.jsp?color=Unicorn&prdPV=2
20 • Perpetual Kid: https://www.perpetualkid.com/magical-winged-rainbow-
21 unicorn-floating-beverage-boats/
22 And https://www.perpetualkid.com/giant-sparkly-glitter-unicorn-pool-float-
23 big-mouth/
24 • Saks Fifth Avenue:
25 https://m.saksoff5th.com/pd.jsp?PRODUCT%3C%3Eprd_id=845524442483
26 429&site_refer=CSE_GGLPRADS001_OFF&gclid=EAIaIQobChMIicHDn-
27 vZ3QIVmNdkCh0SgABJEAQYAyABEgKl-
28 fD_BwE&gclsrc=aw.ds&productCode=0400098769236
COMPLAINT FOR
- 10 - Case No.
1 • Scheels: https://www.scheels.com/p/bigmouth-glitter-unicorn-pool-
2 float/718856-BMPF.html
3 • Target: https://www.target.com/p/big-mouth-toys-unicorn-pool-float-white/-
4 /A-52990127
5 And: https://www.target.com/p/big-mouth-toys-unicorn-lil-float-white/-/A-
6 52990064
7 And: https://www.target.com/p/big-mouth-toys-unicorn-beverage-
8 boatswhite-3pk/-/A-52990144
9 • Zulily: https://www.zulily.com/p/unicorn-beverage-boat-set-of-two-5675-
10 54293873.html?search_pos=83&search_page=2&fromSearch=true
11 Representative screenshots from the foregoing links are included as Exhibit 6.
12 FIRST CLAIM FOR RELIEF
13 (Infringement of US. Patent No. D787,617)
14 52. Covves repeats and realleges the allegations of the foregoing Paragraphs
15 as if fully set forth herein.
16 53. Covves is the owner of the D’617 patent.
17 54. BigMouth has directly infringed and is still infringing the D’617 patent
18 under 35 U.S.C. § 271(a), literally and/or under the doctrine of equivalents, by
19 selling and/or offering to sell and/or importing into the United States the “Giant
20 Unicorn Pool Float”, the “Giant Sparkly Unicorn Pool Float”, the “Sparkles The
21 Unicorn Lil’ Float”, and the “Unicorn Beverage Boats”, each of which embody the
22 design covered by the D’617 patent.
23 55. In addition, BigMouth has infringed and is still infringing the D’617
24 patent in this country, through, inter alia, its active inducement of others, including
25 the Retailer Defendants, to sell products that embody the designed covered by the
26 D’617 patent. This conduct constitutes infringement under 35 U.S.C. § 271(b)
27 56. BigMouth’s infringement is and has been willful, as BigMouth has
28 known that Covves is the owner of the D’617 patent since at least March 22, 2018
COMPLAINT FOR
- 11 - Case No.
1 but intentionally and consciously proceeded to sell the Infringing Products and
2 induce the Retailer Defendants to infringe the D’617 patent
3 57. The Retailer Defendants are engaged in infringement of the D’617 patent
4 in that they each sell, offer for sale, promote, and advertise the Infringing Products.
5 This conduct constitutes infringement under 35 U.S.C. § 271(a).
6 58. Covves has been damaged, in an amount to be determined, as a direct
7 and proximate result of BigMouth’s willful infringement of the D’617 patent and
8 the Retailer Defendants’ infringement of the D’617 patent.
9 SECOND CLAIM FOR RELIEF
10 (Infringement of U.S. Patent No. D783,370)
11 59. Covves repeats and realleges the allegations of the foregoing Paragraphs
12 as if fully set forth herein.
13 60. BigMouth has directly infringed the D’370 patent under 35 U.S.C. §
14 271(a), literally and/or under the doctrine of equivalents, by selling and/or offering
15 to sell and/or importing into the United States the “Giant Unicorn Pool Float”, the
16 “Giant Sparkly Unicorn Pool Float”, the “Sparkles The Unicorn Lil’ Float”, and
17 the “Unicorn Beverage Boats”, each of which embodies the design covered by the
18 D’370 patent
19 61. In addition, BigMouth has infringed and is still infringing the D’370
20 patent in this country, through, inter alia, its active inducement of others, including
21 the Retailer Defendants, to sell products that embody the designed covered by the
22 D’370 patent. This conduct constitutes infringement under 35 U.S.C. § 271(b)
23 62. BigMouth’s infringement is and has been willful, as BigMouth has
24 known that Covves is the owner of the D’370 patent since at least March 22, 2018
25 but intentionally and consciously decided to sell the Infringing Products and
26 induce the Retailer Defendants to infringe the D’370 patent
27 63. The Retailer Defendants are engaged in infringement of the D’370 patent
28 in that they each sell, offer for sale, promote, and advertise the Infringing Products.
COMPLAINT FOR
- 12 - Case No.
1 This conduct constitutes infringement under 35 U.S.C. § 271(a).

2 64. Covves has been damaged, in an amount to be determined, as a direct
3 and proximate result of BigMouth’s willful infringement of the D’370 patent and
4 the Retailer Defendants’ infringement of the D’370 patent.
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COMPLAINT FOR
- 13 - Case No.
1 PRAYER FOR RELIEF

2 WHEREFORE, Covves respectfully requests the Court to enter judgment in
3 favor of Covves and against the Defendants as to all claims asserted herein as
4 follows:
5 A. Granting a judgment that Defendants have infringed the Patents-in-Suit;
6 B. An order and judgment permanently enjoining Defendants and their officers,
7 directors, agents, servants, employees, affiliates, attorneys, and all others

8 acting in privity or in concert with them, and their parents, subsidiaries,
9 divisions, successors and assigns, from further acts of infringement of the
10 asserted design patents;
11 C. An accounting of Defendants’ profits;
12 D. A judgment awarding Plaintiff Defendants’ total profits pursuant to 35
13 U.S.C. § 289;
14 E. An order for Defendants to pay to Covves actual damages adequate to
15 compensate for the infringement in the form of a reasonable royalty for the
16 use made of the patented inventions by Defendants, together with pre-
17 judgment and post judgment interest and costs, in accordance with 35
18 U.S.C. § 284;
19 F. Granting a judgment that BigMouth Defendants’ infringement was willful
20 and ordering BigMouth Defendants to pay to Covves increased damages of

21 three times the compensatory damages, in accordance with 35 U.S.C. § 284;
22 G. Granting a judgment that this case is exceptional under 35 U.S.C. §285 due
23 to BigMouth Defendants’ willful infringement and ordering BigMouth

24 Defendants to pay to Covves its reasonable attorney fees incurred in this
25 action; and
26 H. Granting Covves such other and further relief as this Court may deem just
27 and proper.
28
COMPLAINT FOR
- 14 - Case No.
1 JURY DEMAND
2 Pursuant to Federal Rule of Civil Procedure 38 and Central District of California
3 L.R. 38-1, Covves demands a trial by jury on all issues so triable.
4
6
DATED: October 3, 2018 Stephen C. McArthur
7 THE MCARTHUR LAW FIRM, PC
8
9 By: /s/ Stephen C. McArthur

STEPHEN C. MCARTHUR
10
Attorney for Plaintiff, Covves, LLC
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COMPLAINT FOR
- 15 - Case No.
1 CERTIFICATE OF SERVICE
2 I, Stephen McArthur, declare:
3 I am a citizen of the United States and employed in Los Angeles County,
4 California. I am over the age of eighteen years and not a party to the within-entitled
5 action. My business address is 11400 W. Olympic Blvd. Ste. 200, Los Angeles,
6 California 90064. On October 3, 2018, I served a copy of Defendants Covves,
7 LLC’s [Proposed] First Amended Counterclaims by electronic transmission.
8 I am familiar with the USDC Central District’s practice for collecting and
9 processing electronic filings. Under that practice, documents are electronically
10 filed with the court. The court’s CM/ECF system will generate a Notice of
11 Electronic Filing (NEF) to the filing party, the assigned judge, and any registered
12 users in the case. The NEF will constitute service of the document. Registration as
13 a CM/ECF user constitutes consent to electronic service through the court’s
14 transmission facilities.
15 Executed on October 3, 2018, at Los Angeles, California.
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/s/ Stephen McArthur
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Stephen McArthur
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COMPLAINT FOR
- 16 - Case No.
Case 2:18-cv-08518 Document 1-1 Filed 10/03/18 Page 1 of 7 Page ID #:17
EXHIBIT 1
EXHIBIT 2
EXHIBIT 3
D617 Map to BigMouth Giant Unicorn Float
D370 Map to BigMouth Giant Unicorn Float
D617 Map to BigMouth Giant Sparkly Unicorn Pool Float
D370 Map to BigMouth Giant Sparkly Unicorn Pool Float
D617 Map to BigMouth Sparkles The Unicorn Lil’ Float
D370 Map to BigMouth Sparkles The Unicorn Lil’ Float
D617 Map to BigMouth Unicorn Beverage Boats
EXHIBIT 4
10/2/2018 McArthur Law1-4
Case 2:18-cv-08518 Document Mail - Notice
Filedof10/03/18
Improper Removal
Pageof BigMouth
2 of 10Product
Page ID #:45
Ricky Brown <[email protected]>
Notice of Improper Removal of BigMouth Product

Nickerson, Morgan T. <[email protected]> Thu, Mar 22, 2018 at 2:04 PM
To: Stephen McArthur <[email protected]>
Cc: "[email protected]" <[email protected]>
OK - you s ll haven’t sent me your no ce despite mul ple requests. I’ll take that as you admi ng that you do not
have it. That and your unwillingness to resubmit and actually keep a record demonstrates your bad faith. Again,
please let me know today whether your client will retract. If not, my client will act accordingly.
Thanks,
Morgan
From: Stephen McArthur [mailto:[email protected]]

Sent: Thursday, March 22, 2018 4:51 PM
To: Nickerson, Morgan T.
Cc: [email protected]
Subject: Re: Notice of Improper Removal of BigMouth Product
Morgan, it's as if you're not reading written in this chain. Amazon has a record of the complaint. They emailed it below, in
writing. Notice how they never say the words "DMCA". We've told you countless times exactly what the complaint was. In
fact, you can test it out right now to see if it truly is a DMCA complaint. Send Amazon a DMCA counternotice right now
pursuant to 512(g). If it truly was a DMCA complaint (despite all the evidence in this email chain to the contrary), then
Amazon will be required, by law, to "cease disabling access" the material. Godspeed, Morgan.
Stephen Charles McArthur

11400 W. Olympic Blvd., Suite 200
Los Angeles, CA 90064
Office: (323) 639-4455
Direct: (424) 258-6815

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copies. Sender reserves and asserts all rights to confidentiality, including all privileges and copyrights that may apply.
Thank you.
On Thu, Mar 22, 2018 at 1:40 PM, Nickerson, Morgan T. <[email protected]> wrote:
https://mail.google.com/mail/u/0?ik=f924486d97&view=pt&search=all&permmsgid=msg-f%3A1595673351688639671&dsqt=1&simpl=msg-f%3A1595… 1/9
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Pageof BigMouth
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Page ID #:46
Please send me a copy of your complaint to Amazon. I asked three mes now and you have refused. Do you even
have a record of what you sent? If not and you cannot confirm or prove what you sent, I suggest you retract the
current complaint, submi ng a patent complaint that you have a record of, and us going from there. That seems to
be a reasonable thing to do if you truly submi ed a patent complaint. If you refuse to do this and have no copy of
what you sent to Amazon, I will inform my client that Amazon’s account of what was submi ed is likely the truth.
Thanks,
Morgan


You have no good faith belief. Show me anywhere in writing where Amazon has said it was a DMCA takedown. Ask
Amazon to send you the DMCA notice we supposedly filled out if you really think it exists. They can't, because we never
did, and you won't ask them because you know we didn't fill out a DMCA takedown. In addition, you have us here in
writing numerous times saying here that there was never a DMCA takedown, that it was based on a design patent, even
sending you the design patent, and then showing you exactly how the complaint was filled out for the design patent. Even
the sole email you forwarded from Amazon about our complaint does not say it is a DMCA complaint or a copyright
complaint. You have literally zero evidence that anything was a DMCA complaint and zero good faith belief.
"This seems to be a pattern with your client as the same thing occurred to P&P in the attached."
What are you talking about? Did you read the complaint? It's about design patent infringement. Nothing in there is about
the DMCA.
And I'm not sure why you believe personally threatening other attorneys with lawsuits against them personally is a good
first step to resolving a complaint. At this point, you're just sending harassing, baseless threats in the hope that Covves
will retract a legitimate design patent complaint. You have no good faith belief at all, and attempting to assert your
frivolous and unreasonable "belief" in court would likely be sanctionable conduct. And you've still not given even a single
reason as to why Covves should retract other than frivolous personal threats against Covves' attorneys. If you want to
continue this conversation, you need to pass this on to a different attorney at your firm. I'm done dealing with you and
your inappropriate personal threats against us.
Best regards,

Office: (323) 639-4455
Direct: (424) 258-6815

Filedof10/03/18
Improper Removal
Pageof BigMouth
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Page ID #:47
Thank you.
Please let me know today whether you will retract. This seems to be a pa ern with your client as the same thing
occurred to P&P in the a ached. Also, given Amazon’s statement and your refusal to send what was sent (or your
lack of any record of what you submi ed), I believe there is a good faith basis to assert claims against a orney Brown
personally, McArther Law, and Covves LLC for 512f viola ons. If you can provide me what you sent Amazon and it
shows otherwise, I will so inform my client.
I look forward to receiving confirma on that your client will retract or evidence that you did not send a DMCA
complaint to Amazon.
Thank you,
Morgan


Sounds like you're talking to a low level non-attorney at Amazon who doesn't know what a DMCA complaint is and
probably thinks every IP notice is a "DMCA". Not sure what to tell you. I'd ask to talk to a real lawyer there. We did not fill
out a 512 DMCA complaint. And you've not given us any reason to retract. Covves created the unicorn float and the
unicorn cupholder and registered the IP to protect it. Your client blatantly copied it and competes with a cloned product.
This is exactly what IP is in place to protect against. I'll ask my client if he'd like to retract, but I won't have any reason for
him for why he should.

Office: (323) 639-4455
Direct: (424) 258-6815

Thank you.
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Page ID #:48
Thanks for the advice - can you send me what you sent Amazon because it is standing by its posi on that this was a
DMCA complaint. If you do not have a record of what was submi ed, please let me know. Lastly, please let me know
whether you are going to retract.
Morgan T. Nickerson
Partner
K&L Gates LLP
State Street Financial Center
One Lincoln Street
Boston, MA 02111
T-617.261.3134
F-617.261.3175
[email protected]
www.klgates.com


Your belief is incorrect. They remove for design patent infringement all the time. I have no idea why they ignore you.
Maybe you're sending them letters instead of simply filling out their online form, which they are very responsive
to: https://www.amazon.com/report/infringement
Click through, choose "patent conerns" and "design patent" from their drop-down menu. We sent a complaint based on
the design patent I sent in my previous email. In the future, I suggest you use that form if you have a patent complaint
since that's their official method for contacting Amazon with IP concerns.
Best regards,

Office: (323) 639-4455
Direct: (424) 258-6815

Filedof10/03/18
Improper Removal
Pageof BigMouth
6 of 10Product
Page ID #:49
Thank you.
I know that Amazon will not remove for design patents infringement (I have a hard me ge ng them to recognize
exclusion orders) absent a Court order. Can you send me whatever communica on you sent to Amazon?
Morgan T. Nickerson
Partner
K&L Gates LLP
One Lincoln Street
Boston, MA 02111
T-617.261.3134
F-617.261.3175
[email protected]
www.klgates.com


Morgan, we represented that we are agents for the rightsholder and that the seller infringes my client's design patents
filed in 2015 and 2016, long before your client's copyright date. See attached. Amazon is generally really bad about
communicating these complaints correctly to sellers. The complaint was patent related, not DMCA related.

Office: (323) 639-4455
Direct: (424) 258-6815

Filedof10/03/18
Improper Removal
Pageof BigMouth
7 of 10Product
Page ID #:50
Thank you.
On Thu, Mar 22, 2018 at 10:55 AM, Nickerson, Morgan T. <[email protected]> wrote:
No because I called them. Can you forward me what you sent to Amazon? That should clear up the issue if it wasn’t
a DMCA takedown and you didn’t represent to be the rights holder.


Morgan, can you send me the correspondence with Amazon where they say we sent a DMCA takedown? I'm not seeing
that anywhere in the email you forwarded to me. This concerns us because no DMCA takedown was sent. I want to make
sure Amazon is properly communicating what is going on here.
Best regards,

Office: (323) 639-4455
Direct: (424) 258-6815

Thank you.
A orney McArthur,
Amazon has informed us that this takedown was in response to a DMCA no ce received from
[email protected]. In fact, Amazon states that a orney Brown represented to Amazon that he was the
rights holder of the IP at issue. If a orney Brown’s communica on to Amazon was not intended to be a DMCA no ce
or if he (or your office) is not in fact the rights holder and instead only represents the rights holder, I ask that you
clear that up with Amazon immediately.
Nonetheless, a ached please find my client’s registra on and deposit copy as requested. The longer this pos ng is
down, the more money my client loses. While my client is not currently seeking monetary damages, if the retrac on
Filedof10/03/18
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Pageof BigMouth
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Page ID #:51
is not made today, my client reserves its right to seek damages for the removal of its product from Amazon.
Morgan T. Nickerson
Partner
K&L Gates LLP
One Lincoln Street
Boston, MA 02111
T-617.261.3134
F-617.261.3175
[email protected]
www.klgates.com

Morgan, this was not a DMCA takedown, so there cannot be any 512(f) liability. Please send us the copyright registration
and the deposit copy showing the exact work that is covered by that registration and we will consider your request.
Best regards,

Office: (323) 639-4455
Direct: (424) 258-6815

Thank you.
A orney Brown,
I represent BigMouth Inc. in intellectual property ma ers. It has come to my a en on that you have reported their
Unicorn Float for copyright infringement and their product has been removed from Amazon as a result. My client in
fact owns a copyright on this product found at registra on # VA 2-078-828. As I am sure you are aware, improper
removal of a compe ng product subjects you, your law firm, and your client to liability under 17 USC 512(f). Should it
Filedof10/03/18
Improper Removal
Pageof BigMouth
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Page ID #:52
be discovered that you, your law firm or your client improperly removed this item, my client has the ability to seek its
actual damages in the form of lost sales and seek reimbursement of its a orneys’ fees for having to do so.
However, my client would prefer to resolve this ma er amicably and without the need to li gate the issue. As such,
my client asks that you retract this complaint today to minimize the damage that has been done by following the
retrac on procedure below. Kindly let me know today if you intend to retract your complaint. If I do not hear from
you, I will assume that you do not intend to do so.
Sincerely,
Morgan Nickerson
Morgan T. Nickerson
Partner
K&L Gates LLP
One Lincoln Street
Boston, MA 02111
T-617.261.3134
F-617.261.3175
[email protected]
www.klgates.com
From: "[email protected]" <[email protected]>
Subject: Warning: Notice of Intellectual Property Rights Infringement
Date: March 22, 2018 at 2:20:01 AM EDT
To: "[email protected]" <[email protected]>
Cc: "[email protected]" <[email protected]>
Reply-To: "[email protected]" <seller-evaluation+

[email protected]>
Hello,
We are contacting you because we received a report of infringement from the rights owner listed below. Sellers on
Amazon.com are not allowed to create listings or detail pages that infringe intellectual property rights. We removed the
following content:
ASIN: B078TN3WWM, BigMouth Inc. Inflatable Magical Unicorn Pool Cupholder Floats, 2-pack, Great for Parties and
Special Events
We may let you list this content again if we receive a retraction from the rights owner. Their contact information can be
found below.
10/2/2018 McArthur Law
Case 2:18-cv-08518 Document Mail - Filed
1-4 Notice of10/03/18
Improper Removal
Page of BigMouth
10 of 10Product
Page ID #:53
Ricky Brown
[email protected]
If the rights owner agrees to retract their complaint, they must send the retraction to us at [email protected].
If you believe that the reported content does not infringe the rights owner’s intellectual property rights, you may email
[email protected] with supporting information.
We consider allegations of intellectual property infringement a serious matter and your account is under review. If we
receive more complaints about your listings, we may not allow you to sell on Amazon.com.
To learn more about this policy, search for "Intellectual Property Violations" in Seller Central Help.
Complaint ID: 1547092211
Sincerely,
This electronic message contains information from the law firm of K&L Gates LLP. The contents may be privileged and confidential and are
intended for the use of the intended addressee(s) only. If you are not an intended addressee, note that any disclosure, copying, distribution,
or use of the contents of this message is prohibited. If you have received this e-mail in error, please contact me at
[email protected].
EXHIBIT 5
10/2/2018 Case 2:18-cv-08518 DocumentMcArthur
1-5 FiledLaw Mail - Your Amazon
10/03/18 Enquiry2 of 4 Page ID #:55
Page
Ricky Brown <[email protected]>
Your Amazon Enquiry

[email protected] <[email protected]> Sun, Apr 1, 2018 at 2:42 PM
Reply-To: [email protected]
To: [email protected]
Hello,
Thank you for your message. The content that you reported as IP infringement (patent) has been removed from
Amazon.com.
You can learn more about your account health in the Performance section of Seller Central (https://sellercentral.amazon.
com/gp/seller-rating/pages/performance-summary.html)
-------------------------------------
From: [email protected]
Sent: Thursday, March 29, 2018 11:03 AM (PDT)
Subject: Re: Your Amazon Enquiry
Dear Amazon,
I appreciate you confirming that the content was removed.
What I am asking is for is confirmation that the report came to you with "Th*e
primary complaint pertains to" *having* "PATENT CONCERNS" *with the
specific concern being "*DESIGN PATENT"* as pictured below.
Many Thanks,
Ricky Brown
400 Corporate Pointe, Suite 300
Culver City, CA 90230
(323) 639-4455
*This email, including any attachments, may contain material that is

confidential, privileged and/or attorney work product, or inside
information, for the sole use of the intended recipient. Any review,
reliance or distribution by others or forwarding without express permission
is strictly prohibited and may be unlawful. If you are not the intended
recipient or if you received this message in error, please notify The
McArthur Law Firm at [email protected] and
delete all copies. Sender reserves and asserts all rights to
confidentiality, including all privileges and copyrights that may apply.
Thank you.*
On Wed, Mar 28, 2018 at 11:30 PM, wrote:
> Hello,
>
> Thank you for your message. The content that you reported as IP
> infringement has been removed from Amazon.com
>
> ASIN(s): B0737CPXJT
https://mail.google.com/mail/u/0?ik=f924486d97&view=pt&search=all&permmsgid=msg-f%3A1596581672421781647&simpl=msg-f%3A15965816724… 1/3
Page
> B0789L8CFR
> B0716SVQSX
> B0793GYRRJ
> B07B62291P
> B078TN3WWM
> B07B65R78Q
> B07BF38LND
> B07173N151
> Complaint ID: 1559945801
>
> Sincerely,
> Amazon.com
>
>
> -------------------------------------
> From: [email protected]
> Sent: Sunday, March 25, 2018 7:15 PM (PDT)
> Subject: Re: Your Amazon Enquiry
>
> Amazon,
>
> I am aware that the content was removed. I am asking that you please
> confirm "design patent" was the complained of reason on the complaint form
> because one of the persons enforced against is claiming you've told them it
> was a DMCA takedown.
>
> Many Thanks,
>
> Ricky Brown
> 400 Corporate Pointe, Suite 300
> Culver City, CA 90230
> (323) 639-4455
> www.smcarthurlaw.com
>
> *This email, including any attachments, may contain material that is
> confidential, privileged and/or attorney work product, or inside
> information, for the sole use of the intended recipient. Any review,
> reliance or distribution by others or forwarding without express permission
> is strictly prohibited and may be unlawful. If you are not the intended
> recipient or if you received this message in error, please notify The
> McArthur Law Firm at [email protected] and
> delete all copies. Sender reserves and asserts all rights to
> confidentiality, including all privileges and copyrights that may apply.
> Thank you.*
>
> On Sun, Mar 25, 2018 at 7:28 AM, wrote:
>
> > Hello,
>>
> > Thank you for your message. The content that you reported as IP
> > infringement has been removed from Amazon.com
>>
> > ASIN(s): B0737CPXJT, B0789L8CFR, B0716SVQSX, B0793GYRRJ, B07B62291P,
> > B078TN3WWM, B07B65R78Q, B07BF38LND, B07173N151
>>
> > Complaint ID: 1550514901
>>
>>
> > Sincerely,
> > Amazon.com
>>
>>
> > -------------------------------------
> > From: [email protected]
> > Sent: Thursday, March 22, 2018 1:09 PM (PDT)
Page
> > Subject: Re: Your Report of Rights Infringement on Amazon.com
>>
> > Dear Amazon,
>>
> > Can you please confirm that Complaint ID: 1547092251 was sent as a
> > complaint for infringement of Design Patent D 783,370.
>>
> > One of the parties we've enforced against claims to have spoken to you
> and
> > been told their product was removed on account of a DMCA notice rather
> than
> > an assertion of a patent right.
>>
> > Please Advise,
>>
> > Ricky Brown
> > 400 Corporate Pointe, Suite 300
> > Culver City, CA 90230
> > (323) 639-4455
> > www.smcarthurlaw.com
>>
> > *This email, including any attachments, may contain material that is
> > confidential, privileged and/or attorney work product, or inside
> > information, for the sole use of the intended recipient. Any review,
> > reliance or distribution by others or forwarding without express
> permission
> > is strictly prohibited and may be unlawful. If you are not the intended
> > recipient or if you received this message in error, please notify The
> > McArthur Law Firm at [email protected] and
> > delete all copies. Sender reserves and asserts all rights to
> > confidentiality, including all privileges and copyrights that may apply.
> > Thank you.*
>>
> > On Wed, Mar 21, 2018 at 9:12 PM, wrote:
>>
> > > Hello,
>>>
> > > Thank you for your report of infringement. We reviewed your report and
> > > removed the following content based on the information you provided.
>>>
> > > ASIN: B0737CPXJT
> > > B0789L8CFR
> > > B0716SVQSX
> > > B0793GYRRJ
> > > B07B62291P
> > > B078TN3WWM
> > > B07B65R78Q
> > > B07BF38LND
> > > B07173N151
> > > Complaint ID: 1547092251
>>>
> > > Sincerely,
> > > Amazon.com
>>
>
EXHIBIT 6

Covves v. BigMouth - Complaint

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Case 2:18-cv-08518 Document 1 Filed 10/03/18 Page 1 of 16 Page ID #:1

1 Stephen C. McArthur (State Bar No. 277712)

8 UNITED STATES DISTRICT COURT

11 COVVES, LLC, Case No. 2:18-cv-8518

1 of business is located in this District.

1 its BigMouth Unicorn Floats accused products.

28 32. BigMouth Defendants also illegally misappropriated the patented design

17 34. The image above is demonstrative of the similarity. Both feature a

1 (left) and BigMouth Defendants’ “Unicorn Beverage Boat” product (right):

12 36. A claim chart comparing both of the Patents-in-Suit to each of the

1 after Plaintiff’s Mini Unicorn Cupholder first appeared on Covves’ website on

1 This conduct constitutes infringement under 35 U.S.C. § 271(a).

1 PRAYER FOR RELIEF

6 B. An order and judgment permanently enjoining Defendants and their officers,

7 directors, agents, servants, employees, affiliates, attorneys, and all others

12 D. A judgment awarding Plaintiff Defendants’ total profits pursuant to 35

20 and ordering BigMouth Defendants to pay to Covves increased damages of

23 to BigMouth Defendants’ willful infringement and ordering BigMouth

9 By: /s/ Stephen C. McArthur

Ricky Brown <[email protected]>

Notice of Improper Removal of BigMouth Product

From: Stephen McArthur [mailto:[email protected]]

Stephen Charles McArthur

Direct: (424) 258-6815

From: Stephen McArthur [mailto:[email protected]]

To: Nickerson, Morgan T.

Stephen Charles McArthur

Direct: (424) 258-6815

From: Stephen McArthur [mailto:[email protected]]

To: Nickerson, Morgan T.

Stephen Charles McArthur

Direct: (424) 258-6815

From: Stephen McArthur [mailto:[email protected]]

To: Nickerson, Morgan T.

Stephen Charles McArthur

Direct: (424) 258-6815

From: Stephen McArthur [mailto:[email protected]]

To: Nickerson, Morgan T.

Stephen Charles McArthur

Direct: (424) 258-6815

From: Stephen McArthur [mailto:[email protected]]

To: Nickerson, Morgan T.

Stephen Charles McArthur

Direct: (424) 258-6815

From: Stephen McArthur [mailto:[email protected]]

Stephen Charles McArthur

Direct: (424) 258-6815

From: "[email protected]" <[email protected]>

Subject: Warning: Notice of Intellectual Property Rights Infringement

Date: March 22, 2018 at 2:20:01 AM EDT

To: "[email protected]" <[email protected]>

Cc: "[email protected]" <[email protected]>

Reply-To: "[email protected]" <seller-evaluation+

Complaint ID: 1547092211

Ricky Brown <[email protected]>

Your Amazon Enquiry

I appreciate you confirming that the content was removed.

*This email, including any attachments, may contain material that is

On Wed, Mar 28, 2018 at 11:30 PM, wrote: