1 Mark D.

Kremer (SB# 100978)

m.kremer@conklelaw.com
2 Zachary Page (SB# 293885)
z.page@conklelaw.com
3 CONKLE, KREMER & ENGEL
Professional Law Corporation
4 3130 Wilshire Boulevard, Suite 500
Santa Monica, California 90403-2351
5 Phone: (310) 998-9100 Fax: (310) 998-9109
6 Attorneys for Belava, LLC
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

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12 BELAVA, LLC, a California limited
liability company,
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Plaintiff,
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v.
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SKINACT, a California corporation;
16 DRO HARTOONIANS, an individual;
and DOES 1 through 10, inclusive,
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Defendants.
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CASE No.
COMPLAINT FOR:
1.

PATENT INFRINGEMENT

2.

TRADE DRESS
INFRINGEMENT

3.

UNFAIR COMPETITION

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Trial Date:

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0238.003\9999

COMPLAINT

None

Plaintiff Belava, LLC (Belava or Plaintiff) alleges as follows:

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JURISDICTION AND VENUE

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1.

This Court has subject matter jurisdiction under 15 U.S.C. 1121 (action

5 arising under the Lanham Act); 28 U.S.C. 1331 (federal question); 28 U.S.C.
6 1338(a) (any Act of Congress relating to patents and trademarks); and 28 U.S.C. 1367
7 (supplemental jurisdiction).
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9

2.

This Court has personal jurisdiction over Defendant SkinAct because

10 SkinAct is incorporated in and does business in California. This Court has personal
11 jurisdiction over Defendant Dro Hartoonians (Hartoonians) because Hartoonians is
12 domiciled in California.
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14

3.

Venue is proper in this Court under 28 U.S.C. 1391(a) because

15 Defendants SkinAct and Hartoonians reside in Los Angeles County, California.

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THE PARTIES

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4.

Plaintiff Belava, LLC is a California limited liability company with its

19 principal place of business at 21500 Blythe Street, Canoga Park, CA 91304.

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5.

On information and belief, Defendant SkinAct is a California corporation

22 with its principal place of business in Los Angeles County, California. SkinAct sells its
23 products throughout the United States, including in Los Angeles County, California.
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6.

On information and belief, Defendant Hartoonians is an individual residing

26 in Los Angeles County, California. Plaintiff is informed and believes that Hartoonians
27 is an owner and officer of SkinAct.
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0238.003\9999

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COMPLAINT

7.

On information and belief, there are other individuals who make, supply,

2 or sell products in violation of law, and violate Plaintiffs rights as alleged herein.
3 Plaintiff is ignorant of their true identities or complete roles in the alleged conduct and
4 therefore sues them by the fictitious names DOES 1 through 10. Plaintiff is informed
5 and believes that each of the defendants designated as a DOE is liable in some manner
6 for the acts and omissions, damages, and injuries of which Plaintiffs allege in this
7 Complaint. Plaintiff will seek to amend this Complaint to state the true identities of
8 DOES 1 through 10 when ascertained. SkinAct, Hartoonians, and DOE Defendants are
9 referred to collectively as Defendants.
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11

8.

On information and belief, each of the Defendants were at all relevant

12 times acting to the fullest extent recognized by law as the agent, employee, or co13 conspirator of each of the other Defendants, and that in committing the acts and
14 omissions alleged herein and causing the damage and injuries alleged, were acting
15 within the scope of such agency, employment, or conspiracy. Defendants have
16 committed acts in furtherance of the conspiracy, given aid and encouragement to their
17 co-conspirators, and ratified and adopted the acts of their co-conspirators.
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ALLEGATIONS COMMON TO ALL CAUSES OF ACTION

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9.

In 2004, Belava introduced its distinctive and innovative plastic tubs and

21 disposable liners for use during pedicures. For over 10 years, Belava has manufactured,
22 marketed, and sold its soaking tubs and disposable liners both in combination and
23 separately as an elegantly designed product line with a distinctive and unmistakable
24 look that consumers have come to associate with the Belava name (Belava Trade
25 Dress). Images of Belavas soaking tub and disposable liner are depicted below.
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COMPLAINT

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10.

Belava owns all rights in United States Patent No. D 504,178 (178),

9 which patents the design of the Belava tub and liner. An image of the Belava tub and
10 liner from the 178 patent is shown below.
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11.

On information and belief, Defendants manufacture, sell, and/or distribute

17 tubs and liners that infringe on the Belava Trade Dress and the 178 patent. An
18 example of Defendants infringing tubs and liners is displayed below.
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0238.003\9999

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COMPLAINT

12.

Belava also owns all rights in United States Patent Nos. 6,886,191 (191)

2 and 7,559,096 (096), which patent the soaking basin in combination with the liner and
3 a supporting, vibrating, and heating platform. The 178, 191, and 096 patents are
4 collectively referred to herein as the Belava Patents. Exemplars of an authorized
5 realization of the Belava patented inventions are displayed below.
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13.

In or around August 2016, Belava discovered Defendant SkinAct has been

18 making, importing, using, offering to sell, or selling pedicure spa equipment, that
19 infringe the Belava Patents (the Infringing Products). The Infringing Products utilize
20 a soaking basin with a supporting platform, a vibrating platform, a heating platform,
21 and/or disposable liners, directly infringing on the Belava Patents. Examples of the
22 Infringing Products are displayed below.
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COMPLAINT

14.

Belava is informed and believes that Hartoonians aided, abetted,

2 participated in, authorized, and/or approved of SkinActs unlawful acts of infringement

3 as alleged herein.
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15.

By this action, Belava seeks to enjoin Defendants unlawful conduct and

6 obtain compensation for the infringement.

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8

FIRST CLAIM FOR RELIEF

FOR PATENT INFRINGEMENT UNDER 35 U.S.C. 101 et seq.

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(Against All Defendants)

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16.

Belava repeats and realleges paragraphs 1-15 of this Complaint.

17.

Defendants have infringed and/or continue to infringe the Belava Patents

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14 by making, using, selling, and/or offering to sell in the United States the Infringing
15 Products.
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18.

Defendants infringing activities violate 35 U.S.C. 271.

19.

Defendants have profited from the infringing activities.

20.

On information and belief, Defendants have acted willfully and

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22 intentionally in designing, making, using, selling, and/or offering to sell in the United
23 States products that infringe the Belava Patents.
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21.

As a direct and proximate result of Defendants conduct, Belava has been

26 substantially harmed, has suffered actual damages and lost profits, and has been forced
27 to retain legal counsel and pay attorneys fees and costs associated with bringing this
28 action to enforce its rights.
0238.003\9999

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COMPLAINT

SECOND CLAIM FOR RELIEF

FOR TRADE DRESS INFRINGEMENT

UNDER 15 U.S.C. 1125(a) et seq..

(Against All Defendants)

22.

Belava repeats and realleges paragraphs 1-21 of this Complaint.

23.

Belava is the owner of all rights to its distinctive pedicure tubs and

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8 disposable liners. The Belava Trade Dress is illustrated in detail in the 178 patent, and
9 includes nonfunctional elements constituting the distinctive appearance of the Belava
10 Trade Dress.
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24.

The Belava Trade Dress has acquired secondary meaning among

13 consumers identifying Belava as the source of these products. Belavas promotion of

14 the distinctive Belava tub and liner has resulted in Belavas acquisition of valuable,
15 legally protected rights in the Belava Trade Dress as well as considerable customer
16 goodwill.
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25.

Defendants infringing tubs and liners have misappropriated the Belava

19 Trade Dress by copying a combination of several of its elements. Defendants

20 manufacture, sale, and/or distribution of the infringing liners is likely to cause
21 confusion, or to cause mistake, or to deceive the consumer as to the affiliation,
22 connection or association of Defendants infringing tubs and liners with Belava or as to
23 the origin, sponsorship or approval by Belava of Defendants infringing tubs and liners.
24 Use of the Belava Trade Dress has unjustly enriched Defendants.
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26.

Defendants conduct constitutes unfair competition and false designation

27 of origin in violation of Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a).

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0238.003\9999

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COMPLAINT

27.

On information and belief, Defendants knew of the Belava Trade Dress

2 when Defendants manufactured, sold, and/or distributed the infringing tubs and liners.
3 Defendants infringement has been and continues to be intentional, willful, and without
4 regard to the protected Belava Trade Dress.
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28.

Belava is informed and believes, and on that basis alleges, that Defendants

7 have gained profits by virtue of its infringement of the Belava Trade Dress.
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29.

Belava also has sustained damages as a direct and proximate result of

10 Defendants infringement of the Belava Trade Dress in an amount to be proven at trial.

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30.

Belava has no adequate remedy at law.

Unless Defendants are

13 preliminarily and permanently enjoined from committing the unlawful acts alleged,
14 Belava will continue to suffer irreparable harm.
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31.

Defendants actions have been willful and Belava is entitled to treble its

17 actual damages or Defendants profits, whichever is greater, and to an award of costs,

18 and, this being an exceptional case, reasonable attorneys fees pursuant to 15 U.S.C.
19 1117(a).
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THIRD CLAIM FOR RELIEF

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FOR UNFAIR COMPETITION

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UNDER CALIFORNIA BUSINESS AND PROFESSIONS CODE

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17200 et seq.

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(Against All Defendants)

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32.

Belava repeats and realleges paragraphs 1-31 of this Complaint.

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COMPLAINT

33.

The acts of Defendants described above constitute unlawful, unfair or

2 fraudulent business acts or practices, and/or unfair, deceptive, untrue or misleading

3 business practices as defined by California Business & Professions Code 17200 et
4 seq.
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34.

The acts of Defendants described above create a false impression of the

7 Infringing Products in connection with Belavas products and patented technology.

8 This false impression has damaged and continues to damage Belava and consumers
9 because Defendants acts are likely to cause confusion as to the source of Defendants
10 products and is likely to cause others to be confused or mistaken into believing that
11 there is a relationship between Defendants and Belava or that Defendants products are
12 affiliated with or sponsored by Belava when no such relationship, affiliation, or
13 sponsorship exists.
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35.

The acts of Defendants described above also create a false impression of

16 the infringing tubs and liners in connection with the Belava Trade Dress and 178
17 patent. This false impression has damaged and continues to damage Belava and
18 consumers because Defendants acts are likely to cause confusion as to the source of
19 Defendants products and is likely to cause others to be confused or mistaken into
20 believing that there is a relationship between Defendants and Belava or that
21 Defendants products are affiliated with or sponsored by Belava when no such
22 relationship, affiliation, or sponsorship exists.
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36.

The above-described acts and practices by Defendants are likely to mislead

25 or deceive the general public and therefore constitute fraudulent business practices in
26 violation of California Business & Professions Code 17200 et seq. In performing the
27 acts and unfair business practices alleged, Defendants are engaging in unlawful and
28 unfair competition in violation of Belavas rights.
0238.003\9999

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COMPLAINT

37.

As a direct and proximate result of Defendants unlawful conduct, Belava

2 has been substantially harmed, has suffered actual damages and lost profits, and will
3 continue to suffer harm unless Defendants acts are enjoined by the Court.
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38.

Belava has no adequate remedy at law. Defendants acts and omissions as

6 alleged herein have and will cause damages to Plaintiff that are difficult, if not
7 impossible, to measure. Unless Defendants are preliminarily and permanently enjoined
8 from committing the unlawful acts alleged, Belava will continue to suffer irreparable
9 harm.
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39.

Defendants should be required to restore to Belava any and all profits

12 earned as a result of its unlawful and fraudulent actions, or provide Belava with any
13 other restitutionary relief as the Court deems appropriate.
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PRAYER FOR RELIEF

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WHEREFORE, Belava prays for relief against Defendants as follows:

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1.

For a judgment that Defendants have infringed the Belava Patents;

2.

For an order and judgment preliminarily and permanently enjoining

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21 Defendants and their officers, directors, agents, servants, employees, affiliates, and all
22 others acting in privity or in concert with them, and their parents, subsidiaries,
23 divisions, successors and assigns, from further acts of infringement of the Belava Trade
24 Dress, including but not limited to making, using, selling, and/or marketing the current
25 infringing liner;
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3.

For an order and judgment preliminarily and permanently enjoining

28 Defendants and their officers, directors, agents, servants, employees, affiliates, and all
0238.003\9999

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COMPLAINT

1 others acting in privity or in concert with them, and their parents, subsidiaries,
2 divisions, successors and assigns, from further acts of infringement of the Belava
3 Patents, including but not limited to making, using, selling, and/or marketing the
4 current Infringing Products;
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4.

For an order that Defendants shall destroy all goods that

7 infringe the Belava Trade Dress;

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5.

For an order that Defendants shall destroy all goods that

10 infringe the Belava Patents;

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6.

For a judgment awarding Belava all damages adequate to compensate for

13 Defendants infringement of the Belava Trade Dress and the Belava Patents, including
14 all prejudgment and postjudgment interest at the maximum rate permitted by law;
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7.

For a judgment awarding Belava all damages, including treble damages,

17 based on any infringement found to be willful, pursuant to 35 U.S.C. 284, together

18 with prejudgment interest;
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8.

For actual damages suffered by Belava as a result of Defendants unlawful

21 conduct, in an amount to be proven at trial, as well as prejudgment interest as

22 authorized by law;
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9.

For a judgment trebling any damages award pursuant to 15 U.S.C. 1117;

10.

For restitutionary relief against Defendants and in favor of Belava

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27 including disgorgement of wrongfully obtained profits and any other appropriate relief;
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COMPLAINT

11.

For costs of suit and attorneys' fees; and

12.

For such other and further relief as the Court deems just and proper.

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5 Dated: September 29, 2016
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7

Mark D. Kremer
Zachary Page, members of
CONKLE, KREMER & ENGEL
Professional Law Corporation

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By: /s/ Mark D. Kremer
Mark D. Kremer
Attorneys for Belava, LLC

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COMPLAINT