UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA

MT. DERM GmbH and NOUVEAU COSMETIQUE USA, Inc., Plaintiffs, v. PERMANENT MAKEUP INTERNATIONAL and MAYA ABAROA, Defendants. JURY TRIAL DEMANDED Civil Action No.:

COMPLAINT FOR PATENT INFRINGEMENT, FEDERAL TRADEMARK INFRINGEMENT, AND FEDERAL UNFAIR COMPETITION Plaintiffs MT. DERM GmbH (MT. DERM) and NOUVEAU COSMETIQUE USA, Inc. (NOUVEAU COSMETIQUE), by and through their attorneys, for their Complaint against Defendants PERMANENT MAKEUP INTERNATIONAL (PMI) and MAYA ABAROA (ABAROA), allege the following: THE PARTIES 1. Plaintiff MT. DERM is a corporation organized under the laws of Germany

having its principal place of business at Gustav-Krone-Str. 3, 14167 Berlin, Germany. 2. Plaintiff NOUVEAU COSMETIQUE is a corporation having a corporate

office and principal place of business at 111 North Orange Avenue, Suite 775 South Tower, Orlando, Florida, 32801. 3. Upon information and belief, Defendant PMI is a Florida corporation having a

principal place of business at 118 South Cooper Place, Tampa, Florida, 33609. 1

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Upon information and belief, Defendant ABAROA is the owner and operator

of PMI, and resides at 118 South Cooper Place, Tampa, Florida, 33609. Defendants PMI and ABAROA also maintain a website, www.permanentmakeupint.com, that advertises and sells infringing products. JURISDICTION AND VENUE 5. This is an action for patent infringement, federal trademark infringement, and

federal unfair competition. The applicable laws are the patent laws of the United States, Title 35 U.S.C. 1 et seq. and the Lanham Act, 15 U.S.C. 1051 et. seq. 6. This Court has subject matter jurisdiction over this action pursuant to 28

U.S.C. 1331 (federal question jurisdiction) and 1338(a) (original jurisdiction under patent laws). 7. This Court has personal jurisdiction over Defendant PMI and Defendant

ABAROA because, on information and belief, Defendant PMI and Defendant ABAROA reside in and transacts business within this district and have committed acts of patent infringement, federal trademark infringement, and federal unfair competition in this district, including, without limitation, the importation, offer for sale and/or sale of the infringing products described herein, and by engaging in acts of federal trademark infringement and federal unfair competition in this district. Venue is proper in this district pursuant to 28 U.S.C. 1391(b), 1391(c), and 1400(b), because Defendant PMI and Defendant ABAROA reside in and have a regular and established place of business within this district and because Defendant PMI and Defendant ABAROA have conducted regular acts of infringement within this district by selling, offering to sell, and, importing the infringing products, and by 2

engaging in acts of federal trademark infringement and federal unfair competition in this district. FACTUAL ALLEGATIONS AND BACKGROUND 8. Plaintiff MT. DERM sells tattoo and permanent make-up application devices

as well as needle cartridges used with these devices through a chain of distributors in the United States. 6,505,530. 9. On September 28, 2000, Application No. 09/671,650 was filed before the It has all rights, title, and interest in United States Patent Nos. 6,345,553 and

United States Patent Office (USPTO), and on February 12, 2002 the USPTO duly and legally issued U.S. Patent No. 6,345,553 (hereinafter the 553 Patent) entitled Ink Application Device for Tattooing or for Making Permanent Make-Up. A true and correct copy of the 553 Patent is attached hereto as Exhibit A. 10. The named inventors of the '553 Patent are Frank Adler, Walter Lisec and

Gerhard Trk. 11. MT. DERM. 12. Plaintiff NOUVEAU COSMETIQUE is the exclusive licensee of rights to the The inventors assigned all right, title, and interest in the 553 Patent to Plaintiff

553 Patent in the United States in the permanent make-up field. 13. The 553 Patent is now and has been at all times since its date of issuance,

valid and enforceable. 14. On February 12, 2002, Application No. 10/072,991 was filed before the United On

States Patent Office (USPTO) as a continuation of Application No. 09/671,650. 3

January 14, 2003 the USPTO duly and legally issued U.S. Patent No. 6,505,530 (hereinafter the 530 Patent) entitled Ink Application Device for Tattooing or for Making Permanent Make-Up. A true and correct copy of the 530 Patent is attached hereto as Exhibit B. 15. The named inventors of the 530 Patent are Frank Adler, Walter Lisec and

Gerhard Trk. 16. MT. DERM. 17. Plaintiff NOUVEAU COSMETIQUE is the exclusive licensee of rights to the The inventors assigned all right, title, and interest in the 530 Patent to Plaintiff

530 Patent in the United States in the permanent make-up field. 18. The 530 Patent is now and has been at all times since its date of issuance,

valid and enforceable. 19. Plaintiff NOUVEAU COSMETIQUE is the owner of United States Trademark

Registration No. 2,812,829 (hereinafter the 829 Registration) for the mark NOUVEAU CONTOUR for machines used for tattooing, accessories for tattooing and permanent tattooing, namely hand pieces and tattoo needles, machines used for permanent makeup and user manuals sold as a unit therewith, and pigments, colors, dyes and inks for use in tattooing and permanent makeup industry. A true and correct copy of the 829 Registration is attached to the Complaint as Exhibit C. NOUVEAU COSMETIQUEs trademark

registration for NOUVEAU CONTOUR issued on February 10, 2004, and it is now incontestable. NOUVEAU CONTOUR is inherently distinctive, as confirmed by the United States Patent and Trademark Office in registering the trademark.

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NOUVEAU COSMETIQUE has invested substantially in advertising and

promoting products under its NOUVEAU CONTOUR mark through the United States. NOUVEAU COSMETIQUEs NOUVEAU CONTOUR mark is very well known and highly regarded in connection with permanent makeup products. 21. Upon information and belief, Defendant PMI and Defendant ABAROA

maintain an internet website at http://permanentmakeupint.com that has advertised and sold infringing permanent make-up (PMU) application devices and needle cartridges for use with permanent make-up (PMU) application devices including, without limitation, products described and advertised as Nouveau Contour 2000 rmp device and Noveau Contour needles. Upon information and belief, Defendant PMI and Defendant ABAROA have also exhibited, offered for sale, and sold the Nouveau Contour 2000 rmp device and Noveau Contour needles at tradeshows, including at the International Esthetics, Cosmetics, & Spa Conference (IECSC) held at the Fort Lauderdale Convention Center in Fort Lauderdale, Florida on September 22-23, 2013. 22. Defendant PMI and Defendant ABAROA market and sell devices for applying

permanent make-up (PMU) and/or tattoos and needle cartridges for use with such devices that compete with products manufactured, marketed, and sold by Plaintiffs and that are the subject of this action. COUNT I (Infringement of the 553 Patent) 23. fully herein. The allegations of paragraphs 1-22 are repeated and re-alleged as if set forth

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Defendant PMI and Defendant ABAROA have infringed one or more claims of

the 553 Patent in violation of 35 U.S.C. 271(a), (b), and/or (c) by importing, selling, and offering for sale, PMU devices and/or needle cartridges for use with PMU devices embodying the invention claimed in the 553 Patent, including (but not limited to) the Nouveau Contour 2000 rmp device and Nouveau Contour needles. 25. The infringing actions of Defendants are and have at all times been without the

consent of, authority of, or license from Plaintiffs. 26. As a direct and proximate result of the infringement of the 553 Patent by

Defendants, Plaintiffs have suffered damages in an amount which cannot yet be fully ascertained, which will be proven at trial. 27. Upon information and belief, Defendants have knowledge of the infringement

of the 553 Patent, yet Defendants continue to infringe the 553 Patent. The infringement of the 553 Patent by Defendants is knowing and willful, entitling Plaintiffs to increased damages under 35 U.S.C. 284 and to attorneys fees and costs incurred in prosecuting this action under 35 U.S.C. 285. 28. The infringement of the 553 Patent by Defendants has caused and continues to

cause Plaintiffs to suffer irreparable harm for which there is no adequate remedy at law, and for which Plaintiffs are entitled to injunctive relief. COUNT II (Infringement of the 530 Patent) 29. fully herein. The allegations of paragraphs 1-28 are repeated and re-alleged as if set forth

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Defendant PMI and Defendant ABAROA have infringed one or more claims of

the 530 Patent in violation of 35 U.S.C. 271(a), (b), and/or (c) by importing, selling, and offering for sale, PMU devices and/or needle cartridges for use with PMU devices embodying the invention claimed in the 530 Patent, including (but not limited to) the Nouveau Contour 2000 rmp device and Nouveau Contour needles. 31. The infringing actions of Defendants are and have at all times been without the

consent of, authority of, or license from Plaintiffs. 32. As a direct and proximate result of the infringement of the 530 Patent by

Defendants, Plaintiffs have suffered damages in an amount which cannot yet be fully ascertained, which will be proven at trial. 33. Upon information and belief, Defendants have knowledge of the infringement

of the 530 Patent, yet Defendants continue to infringe the 530 Patent. The infringement of the 530 Patent by Defendants is knowing and willful, entitling Plaintiffs to increased damages under 35 U.S.C. 284 and to attorneys fees and costs incurred in prosecuting this action under 35 U.S.C. 285. 34. The infringement of the 530 Patent by Defendants has caused and continues to

cause Plaintiffs to suffer irreparable harm for which there is no adequate remedy at law, and for which Plaintiffs are entitled to injunctive relief. COUNT III (Federal Trademark Infringement) 35. Paragraphs 1-34 are repeated and re-alleged as if set forth fully herein.

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Defendant PMI and Defendant ABAROAs unauthorized use of NOUVEAU

COSMETIQUEs registered NOUVEAU CONTOUR trademark as described above is likely to cause confusion, mistake, or deception of the public as to the source, origin, association, sponsorship or endorsement by PMI and ABAROA and their goods and those of NOUVEAU COSMETIQUE. Defendant PMI and Defendant ABAROAs use of

NOUVEAU COSMETIQUEs mark is a deliberate attempt to trade on NOUVEAU COSMETIQUEs goodwill and the prestige and reputation associated with the NOUVEAU CONTOUR mark and name. Defendant PMI and Defendant ABAROAs use of

NOUVEAU CONTOUR further creates the clear and false impression that NOUVEAU COSMETIQUE has approved or endorsed PMI and ABAROA, their goods, and the quality thereof, by permitting use of the NOUVEAU CONTOUR mark in connection with the promotion of PMI and ABAROAs goods. 37. The foregoing acts of PMI and ABAROA constitute infringement of

NOUVEAU COSMETIQUEs federally registered trademark under Section 32 of The Lanham Act, 15 U.S.C. 1114. 38. The acts of PMI ABAROA have been done willfully and with full knowledge

of NOUVEAU COSMETIQUEs rights in the NOUVEAU CONTOUR mark. The acts of PMI and ABAROA continue to be done willfully and intentionally, notwithstanding PMI and ABAROAs actual and constructive knowledge of NOUVEAU COSMETIQUEs rights in the NOUVEAU CONTOUR mark.

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The foregoing acts of PMI and ABAROA are causing NOUVEAU

COSMETIQUE serious and irreparable harm, which will continue unless enjoined by this Court. COUNT IV (Federal Unfair Competition) 40. Paragraphs 1-39 are repeated and re-alleged as if set forth fully herein. This

cause of action arises under Section 43(a) of the Lanham Act, 15 U.S.C. 1125. 41. NOUVEAU COSMETIQUE has suffered ascertainable loss as a result of the

unfair and/or deceptive acts of PMI and ABAROA in connection with PMI and ABAROAs advertising, marketing, offering for sale, and/or sales of Nouveau Contour 2000 rmp device and Noveau Contour needles in connection with PMI and ABAROAs activities associated with marketing and selling these products on her website

(http://permanentmakeupint.com) and at tradeshows (including IECSC in Fort Lauderdale), which included the unauthorized use of the NOUVEAU CONTOUR mark. PMI and

ABAROAs actions have caused and continue to cause a likelihood of confusion or misunderstanding as to affiliation, connection, or association with, or certification by NOUVEAU COSMETIQUE within the meaning of Section 43(a) of the Lanham Act, 15 U.S.C. 1125. 42. The acts of PMI and ABAROA have been done willfully and with full

knowledge of NOUVEAU COSMETIQUEs rights in the NOUVEAU CONTOUR mark. The acts of PMI and ABAROA continue to be done willfully and intentionally,

notwithstanding PMI and ABAROAs actual and constructive knowledge of NOUVEAU COSMETIQUEs rights in the NOUVEAU CONTOUR mark. 43. The foregoing acts of PMI and ABAROA are causing NOUVEAU

COSMETIQUE serious and irreparable harm, which will continue unless enjoined by this Court. PRAYER FOR RELIEF WHEREFORE, Plaintiffs MT. DERM and NOUVEAU COSMETIQUE respectfully request that the Court grant the following relief: a) enter judgment that Defendants PMI and ABAROA infringe and have

directly, indirectly, contributorily and/or by inducement, infringed the 553 Patent and the 530 Patent under 35 U.S.C. 271(a), (b), and/or (c); b) enter judgment that the infringement of the 553 Patent and the 530 Patent by

Defendanst has been willful and award Plaintiffs treble damages under 35 U.S.C. 284; c) enter judgment that Defendants committed acts of trademark infringement in

violation of the Lanham Act; d) enter judgment that Defendants have committed acts of unfair competition in

violation of the Lanham Act; c) order Defendants to pay damages adequate to compensate Plaintiffs for

Defendants infringement of the 553 Patent and the 530 Patent pursuant to 35 U.S.C. 284, together with prejudgment and post-judgment interest, in an amount according to proof; e) enter a permanent injunction enjoining Defendants and their officers, agents,

servants, employees, and attorneys, and all other persons and entities acting in concert or 10

participation with them, from infringing, inducing others to infringe or contributing to the infringement of the 553 Patent and the 530 Patent; f) in the event a permanent injunction is not granted, determine the conditions

for future infringement or grant such other relief as the Court deems appropriate; g) enter judgment that this case is exceptional under 35 U.S.C. 285 and award

Plaintiffs reasonable attorneys fees and costs; and h) a preliminary and permanent injunction against Defendants and all those in

privity, association and or concert with them enjoining any and all use of NOUVEAU COSMETIQUEs registered NOUVEAU CONTOUR trademark or any mark or name confusingly similar thereto; i) an accounting of all Defendants revenues from infringing sales under

NOUVEAU COSMETIQUEs registered NOUVEAU CONTOUR trademark; j) an award of actual damages, trebled in view of the intentional and willful

nature of Defendants trademark infringement and unfair competition, pursuant to 15 U.S.C. 1117; k) an award of reasonable attorneys fees and taxable costs in view of the

intentional and willful nature of Defendants trademark infringement and unfair competition, pursuant to 15 U.S.C. 1117; and l) award Plaintiffs such further relief as this court deems just and proper. DEMAND FOR JURY TRIAL Plaintiff respectfully requests a trial by jury on all issues so triable, pursuant to Fed. R. Civ. P. 38. 11

Dated: 4/2/14

By:

s/ Lara J. Tibbals Lara J. Tibbals, FBN 0129054 Holly L. Gershow, FBN 98960 HILL, WARD & HENDERSON, P.A. 101 East Kennedy Blvd., Suite 3700 Post Office Box 2231 Tampa, Florida 33601 Telephone: (813) 221-3900 Facsimile: (813) 221-2900 ltibbals@hwhlaw.com hgershow@hwhlaw.com and Michael R. Dzwonczyk, Esq. (application for pro hac vice admission forthcoming) Brian K. Shelton, Esq. (application for pro hac vice admission forthcoming) SUGHRUE MION, PLLC 2100 Pennsylvania Avenue, NW Washington, DC 20037-3213 Tel.: (202) 293-7060 Fax: (202) 293-7860 mdzwonczyk@sughrue.com bshelton@sughrue.com Attorneys for Plaintiffs MT. DERM GmbH and Nouveau Cosmetique USA, Inc.

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