Herman Miller v. Blumenthal - Complaint

Case 1:17-cv-00269 ECF No. 1 filed 03/21/17 PageID.
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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN
HERMAN MILLER, INC., a Michigan

corporation,
Plaintiff,
v.
Case No. ________________________
BLUMENTHAL DISTRIBUTING, INC. d/b/a
OFFICE STAR PRODUCTS; JORNG WELL
INDUSTRIAL CO., LTD.; NOVA ASIA INTL Hon. ___________________________
INC.; NOVA INNOVATIONS INTL LTD.; and
KING HONG INDUSTRIAL CO., LTD.,
Defendants.
COMPLAINT
Plaintiff Herman Miller, Inc. (Herman Miller), by and through its attorneys, files this
complaint for patent infringement, trade dress infringement and unfair competition against
Defendants Blumenthal Distributing, Inc., d/b/a Office Star Products (Office Star); Jorng Well
Industrial (Jorng Well); Nova Asia Intl Inc. (Nova Asia); Nova Innovations Intl Ltd.
(Nova Innovations); and King Hong Industrial Co., Ltd. (King Hong).
PARTIES
1. Plaintiff Herman Miller, Inc. is a corporation organized and existing under the
laws of the State of Michigan having a principal place of business at 855 East Main Avenue,
Zeeland, Michigan 49464.
2. On information and belief, Office Star is a corporation organized and existing
under the laws of the State of California having a principal place of business at 1901 South
Archibald Avenue, Ontario, California 91761.
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3. On information and belief, Jorng Well is a corporation organized and existing
under the laws of Taiwan having a principal place of business at No. 6, Sec 3, Baoda Rd., Kuwi
Jen Hsiang, Tainan City, Taiwan.
4. On information and belief, Nova Asia Intl Inc. is a corporation organized and
existing under the laws of Taiwan having a principal place of business at No. 148, Sec. 4, Chung
Hsiao East Road, Taipei, Taiwan.
5. On information and belief, Nova Innovations is a corporation organized and
existing under the laws of Taiwan having a principal place of business at No. 148, Sec. 4, Chung
Hsiao East Road, Taipei, Taiwan. On information and belief, Nova Innovations also maintains
an office at 18960 Bramhall Lane, Rowland Heights, CA 91748. On information and belief,
Nova Innovations is either a successor or close affiliate (alter ego) entity of Nova Asia Intl Inc.,
so the two will be jointly referred to herein as Nova.
6. On information and belief, King Hong is a corporation organized and existing
under the laws of Taiwan having a principal place of business at No.566 Fong Lin 2nd Road,
Taliao, Kaohsiung 831, Taiwan.
JURISDICTION AND VENUE
7. This is an action for patent infringement under U.S. Code Title 35 et seq,
including 271, 284 and 289. This is also an action for trademark infringement / false
designations of origin under 15 U.S.C. 1125(a); for unfair competition under Michigan
Consumer Protection Act, Mich. Comp. Laws 445.903; and for trademark infringement and
unfair competition under Michigan common law.
8. This Court has subject matter jurisdiction over the claims pursuant to 15 U.S.C.
1121(a) and 28 U.S.C. 1331 and 1338(a) and (b), and supplemental jurisdiction over the
claims arising under the statutory and common law of the State of Michigan pursuant to 28
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U.S.C. 1367(a) because the state law claims are so related to the federal claims that they form
part of the same case or controversy. Furthermore, there is diversity jurisdiction as to the non-
federal claims pursuant to 28 U.S.C. 1332 because the Defendants are diverse from Herman
Miller, and Herman Millers damages hereunder exceed the statutory threshold.
9. On information and belief, this Court has personal jurisdiction over each of the
Defendants not only because Herman Miller suffers injury from infringement and unfair
competition in this district (where it is headquartered), but also because Defendants are engaged
in large-scale national distribution of the accused infringing chairs identified herein with express
knowledge and intent that those chairs would be offered for sale and sold in Michigan, and that
Defendants would derive benefit from those Michigan sales. Office Star is a large, sophisticated
office chair distributor with approximately $180 million in revenue per year that has been
distributing nationally in the United States (and overseas) for decades. Office Star has hundreds
of distribution and retail partners across the United States, and a massive national-scale
distribution network that reaches into every State, including Michigan. The accused infringing
chairs are also sold through major online retail channels that include Amazon.com, Staples.com,
and Wayfair.com, making the accused infringing chairs available for purchase in, and shipment
to, Michigan. Office Star thus knows full well and expressly intends to take advantage of the
Michigan market as part of its large-scale distribution network. Likewise, Jorng Well and King
Hong are large, sophisticated manufacturers who have done business with Office Star for
decades and are very familiar with Office Stars US distribution model, and the fact that it
reaches Michigan. In a prior litigation, Office Star compared its relationship with these
manufacturers to a marriage, and indeed Office Star has exclusivity with King Hong and Jorng
Well for the chair models that they manufacture. Likewise, Nova has been Office Stars liaison
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to Jorng Well for decades, and Office Star is Novas only client. Nova derives income from
Jorng Well sales to Office Star, and expressly knows that Office Stars accused infringing chairs
are placed into a large-scale national distribution network that necessarily takes advantage of the
Michigan market. All the Defendants expect and desire the accused chairs to be sold in
Michigan so that they may derive financial benefit from those sales.
10. Venue is proper in this district under 28 U.S.C. 1391 (b) and (c). On
information and belief, Defendants have transacted business in this district, a substantial part of
the events giving rise to the claims occurred in this district, and this is the district where Herman
Miller is headquartered and the harms to Herman Miller are felt.
BACKGROUND
11. Founded in Zeeland, Michigan in 1905, Herman Miller is a world-famous
manufacturer of high-quality contemporary furniture. Herman Millers iconic designs have not
only generated billions of dollars of revenue for the company, but are also loved by their users,
and have been recognized as works of art by industry professionals.
Caper
12. In 2000, Herman Miller commissioned designer Jeff Weber to develop a
distinctive-looking, inexpensive stacking chair. The result was the Caper chair, depicted below,
which became an immediate success.
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13. Shortly thereafter, building on the sales success, Herman Miller launched
additional versions of Caper in the form of stools and a multi-purpose chair on casters.
14. Herman Miller has sold these chairs in a wide assortment of color combinations.
The chairs are sold either with or without the armrests, and the stacking chairs come alternatively
with straight bottom legs or caster wheels. Further images are included at Exhibit A.1, and also
viewable at www.hermanmiller.com.
15. Herman Miller sought and obtained design patents on the Caper chair listed
below, full versions of which are attached at Exhibits A.2 and A.3. Herman Miller is the lawful
owner of all rights in these patents, including the right to collect damages for past infringement.
D449,938 D455,571
Issued Issued
11/6/2001 4/16/2002
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16. Herman Miller also has trade dress rights in the overall look of the Caper design.
Those trade dress rights are infringed not only by literal copies of the chair, but also by chairs
that mimic the overall look of the design. Because the Caper chair is a composite of many sub-
elements, it is possible to achieve the same overall look with a differently shaped chair by
designing the majority of the components to look similar to the corresponding components of
Caper, or by designing certain prominent components to look very close to the corresponding
Caper components.
17. The core elements of the Caper trade dress are a seat pan coupled with a
distinctive bowler-hat-like backrest. A design that mimics these elements in a manner similar to
how they appear in Caper will infringe the protected trade dress.
18. While not necessary to infringe the trade dress, the inclusion of the following
secondary features will enhance the likelihood of confusion with Caper (and hence make a given
design more likely to infringe): (a) two thin armrests supported by struts from the corners of the
seat, (b) small rounded perforations across the backrest, (c) thin strut legs on a stacking chair
version, and (d) an upside-down semicircular opening at the top of the backrest. The reason
these features are not necessary to infirnge the trade dress is because a chair with a backrest
sufficiently similar to the Caper backrest - even if such a chair lacked elements (a)-(d) - would
cause confusion among consumers, who would assume the chair was a variant of the Caper
chairs sold by Herman Miller. This is because the shape of the Caper backrest is highly
distinctive.
19. For avoidance of any doubt regarding the scope of accused infringement in the
present case, Herman Miller accuses the following chairs, as well as any other model numbers
that have the same appearance.
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20. On information and belief, Office Star maintains private listings of chairs that it
sells to resellers. To the extent Office Star sells other model numbers of chairs that look like
ones identified above, those would also be deemed infringing, as would any other chairs not yet
known to Herman Miller that look even more similar to Caper than the chairs identified above.
21. The Caper trade dress styling is non-functional because it is not essential to the
products use, and does not affect its cost or quality. Furthermore, there is no utilitarian
advantage to using the particular shapes claimed as trade dress. There are an infinite variety of
alternative stylings and shapes that could have been chosen that would have achieved the same
functional advantages. There is also no particularly simple or inexpensive manufacturing
method that Herman Miller seeks to monopolize through these chairs. Of course, all chairs have
some de facto functions, but the Caper chair has no de jure functions that would render it legally
functional for purposes trade dress law. The overall styling and particular choice of combination
of design elements reflects artistic flourish.
22. The Caper trade dress has acquired secondary meaning and has become
recognizable as a distinctive design that a significant number of potential consumers of office
chairs would recognize as coming from a single supplier. Caper has attained this status by virtue
of its extreme popularity, high sales, and expansive marketing efforts by Herman Miller. More
than 2 million Caper units have been sold (mostly stacking chairs) since the design was
introduced in 2000, and Herman Miller has spent more than $10 million marketing the chair.
Caper has won design awards, and is ubiquitous in the marketplace. Because of its relatively low
cost, a wide range of end users buy Caper chairs. Also, because it is used heavily as communal
seating, any given Caper chair may be used and seen by exponentially more people than there are
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chairs that have been produced. Each chair is stamped with a Herman Miller logo and name on
the backrest.
23. On information and belief, Taiwanese manufacturer King Hong manufactures the
accused infringing copies of Caper. Office Star is a major U.S. distributor of the accused chairs.
Office Star sells to a vast network of dealers, distributors and eCommerce retailers, who then
resell the chairs into the marketplace.
24. Caper is not the first Herman Miller chair that King Hong and Office Star have
copied. In 2010, they began manufacturing copies of Herman Millers famous Eames Aluminum
Group chairs. In 2016, a jury determined that Office Star had engaged in willful infringement
and dilution in selling King Hongs chairs, awarding $8.4 million in damages to Herman Miller.
See Blumenthal Distributing, Inc. v. Herman Miller, Inc., C.D. Cal. Case No. 5:14-cv-01926-
JAK-SP, Dkt. 344.
25. Upon information and belief, Office Star willfully sold copies of the Caper chair
despite explicit knowledge that they were covered by Herman Miller intellectual property rights,
including the patents asserted herein. Office Star has demonstrated a pattern of objective
recklessness with respect to infringing Herman Miller intellectual property by failing to consult
with competent counsel regarding known Herman Miller rights.
26. Upon information and belief, King Hong has similarly engaged in willful failure
to investigate Herman Miller intellectual property rights, and has engaged in a pattern of
knowingly copying Herman Miller designs without consulting with a U.S. attorney. Upon
information and belief, King Hong specifically knew of the Herman Miller patents asserted
herein, but proceeded with its conduct without regard for them.
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Mirra
27. Following the unprecedented success of the its Aeron office chair in the 1990s,
Herman Miller commissioned Studio 7.5 in Berlin, Germany to design a lower cost alternative
with a distinctive design all its own. In 2002, Studio 7.5 completed the design for the Mirra
chair, and in 2003 it was released on the market. (The name MIRRA is trademarked at Reg. No.
2,935,525, but for cosmetic reasons, the symbol will not be used in this pleading.) Below is a
sample image of a Mirra chair.
28. In 2013, Herman Miller updated the materials and construction of the Mirra chair,
making it more lightweight and giving it a more advanced tilt mechanism. The structural look of
the chair remained the same, except that the shape of the backrest support arms changed slightly.
Below is a sample image of a Mirra 2 chair.
29. Further images of Mirra chairs are included at Exhibit B.1, and also viewable at
www.hermanmiller.com.
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30. Herman Miller sought and obtained the design patents on the Mirra chair shown
below, full versions of which are attached at Exhibits B.2 and B.3. Herman Miller is the lawful
owner of all rights in these patents, and they have been full force and effect since the day they
each issued.
D494,792
Issued
8/24/2004
D490,994
Issued 6/8/2004
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31. Herman Miller also has trade dress rights in the overall look of the Mirra design.
Those trade dress rights are infringed not only by literal copies of the chair, but also chairs that
mimic the overall look of the design. Because the Mirra chair is a composite of many sub-
elements, it is possible to achieve the same overall look with a differently shaped chair by
designing the majority of the components to look similar to the corresponding components of
Mirra, or by designing certain prominent components to look very close to the corresponding
Mirra components.
32. Excluding the support base and wheels (which are common elements of office
chairs and could be interchangeable) the core elements of the Mirra trade dress are a seat pan
coupled with a butterfly-shaped backrest whose surface is covered by a large number of
elongated perforations. A design that mimics these elements in a manner similar to how they
appear in Mirra will infringe the protected trade dress. While Herman Miller does not claim
trade dress rights in all chairs with backrests that have elongated perforations, the Mirra trade
dress rights are infringed by those chairs with backrests that mimic the Mirra backrest design in
such a way that there would be a likelihood of confusion among consumers.
33. While not necessary to infringe the trade dress, the inclusion of the following
secondary features will enhance the likelihood of confusion with Mirra (and hence make a given
design more likely to infringe the protected trade dress): (a) two floating, flattened, ellipsoidal
armrests (irrespective of how mounted), or (b) a large Y-shaped backrest support column. The
reason these features are not necessary to infringe the trade dress is because a chair with a
backrest sufficiently similar to the Mirra backrest even if such a chair lacked armrests or the Y-
shaped support column would cause confusion among consumers, who would assume the chair
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was a variant of the Mirra chairs sold by Herman Miller. This is because the Mirra backrest is
highly distinctive.
34. For avoidance of any doubt regarding the scope of accused infringement in the
present case, Herman Miller accuses the following chairs, as well as any other model numbers
that have the same appearance.
35. On information and belief, Office Star maintains private listings of chairs that it
sells to resellers. To the extent Office Star sells other model numbers of chairs that look like
ones identified above, those would also be deemed infringing, as would any other chairs not yet
known to Herman Miller that look even more similar to Mirra than the chairs identified above.
36. The Mirra trade dress styling is non-functional because it is not essential to the
products use, and does not affect its cost or quality. Furthermore, there is no utilitarian
advantage to using the particular shapes claimed as trade dress. There are an infinite variety of
alternative stylings and shapes that could have been chosen that would have achieved the same
functional advantages. There is also no particularly simple or inexpensive manufacturing
method that Herman Miller seeks to monopolize through these chairs. Of course, all chairs have
some de facto functions, but the Mirra chair has no de jure functions that would render it legally
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functional for purposes trade dress law. The overall styling and particular choice of combination
of design elements reflects artistic flourish.
37. The Mirra trade dress has acquired secondary meaning and has become
recognizable as a distinctive design that a significant number of potential consumers of office
chairs would recognize as coming from a single supplier. Mirra has attained this status by virtue
of its extreme popularity, high sales, and expansive marketing efforts by Herman Miller.
Approximately 1.5 million Mirra units have been sold since the design was introduced in 2003,
and Herman Miller has spent more than $13 million marketing the chair. Mirra has won design
awards, and is ubiquitous in the marketplace. The perforated butterfly backrest design has
become highly recognizable and distinctive in the market.
38. On information and belief, Taiwanese manufacturer Jorng Well manufactures the
accused infringing copies of Mirra. Office Star is a major U.S. distributor of the accused chairs,
which it purchased from Jorng Well with the help of its purchasing agent, Nova. On information
and belief, Nova facilitates the inspection of chairs by Office Star, helps negotiate their purchase,
and makes arrangements for their importation into the United States. Office Star sells to a vast
network of dealers, distributors and eCommerce retailers, who then resell the chairs into the
marketplace.
39. Mirra is not the first Herman Miller chair that Office Star has copied. In 2010,
Office Star began selling copies of Herman Millers famous Eames Aluminum Group chairs. In
2016, a jury determined that Office Star had engaged in willful infringement and dilution,
awarding $8.4 million in damages to Herman Miller. See Blumenthal Distributing, Inc. v.
Herman Miller, Inc., C.D. Cal. Case No. 5:14-cv-01926-JAK-SP, Dkt. 344.
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40. Upon information and belief, Office Star has engaged in willful infringement of
Herman Miller intellectual property rights, and has engaged in a pattern of recklessly selling
look-alike chairs without getting a competent opinion of counsel. In particular, Office Star was
actually aware of the Mirra patents asserted herein, but proceeded with its conduct regardless.
41. Upon information and belief, Jorng Well has similarly engaged in willful failure
to investigate Herman Miller intellectual property rights, and has engaged in a pattern of
knowingly copying Herman Miller designs without consulting with a U.S. attorney. Upon
information and belief, Jorng Well specifically knew of the Herman Miller patents asserted
herein, but proceeded with its conduct without regard for them.
42. Upon information and belief, Nova has similarly engaged in willful failure to
investigate Herman Miller intellectual property rights and has engaged in a pattern of knowingly
facilitating the copying of Herman Miller designs without consulting with a U.S. attorney. Upon
information and belief, Nova specifically knew of the Herman Miller patents asserted herein, but
proceeded with its conduct without regard for them.
COUNT I
INFRINGEMENT OF U.S. PATENT NO. D449,938
43. The preceding paragraphs are incorporated herein by reference.
44. Herman Miller has valid and protectable patent rights in U.S. Patent No.
D449,938 (938 Patent).
45. Office Stars importation, marketing and sale of at least chair model Nos. 8610,
8620, 8640, 8455 and STC 865 infringe on the 938 Patent. Office Stars infringement was
willful because it was done with knowledge of Herman Millers patent.
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46. King Hongs importation of at least chair model Nos. 8610, 8620, 8640, 8455 and
STC 865 infringes on the 938 Patent. Upon information and belief, King Hongs infringement
was willful because it was done with knowledge of Herman Millers patent.
47. King Hong also induces infringement by Office Star, knowing that Herman Miller
owns the 938 Patent.
48. Herman Miller loses sales for each of the accused chairs that are sold. Because
the Caper design is so unique and distinctive, the entire reason that a customer would purchase a
knock-off is to get that iconic look. But for the availability of the accused chairs, Herman Miller
would have sold Caper chairs. Herman Miller therefore seeks recovery of all of its lost profits
associated with the number of accused chairs sold.
49. Alternatively, Herman Miller seeks to recover all of Office Star and King Hongs
infringing profits under 35 U.S.C. 289.
50. Alternatively, Herman Miller seeks to recover a reasonable royalty.
51. Herman Miller seeks trebling of damages for willful infringement, as well as
recovery of its attorneys fees.
COUNT II
D455,571 (571 Patent).
54. Office Stars importation, marketing and sale of at least chair model Nos. 82710,
82710, 82740, 86710, 86724, 86725, 86740 and STC866 infringe on the 571 Patent. Office
Stars infringement was willful because it was done with knowledge of Herman Millers patent.
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55. King Hongs importation of at least chair model Nos. 82710, 82710, 82740,
86710, 86724, 86725, 86740 and STC866 infringes on the 571 Patent. King Hongs
infringement was willful because, upon information and belief, it was done with knowledge of
Herman Millers patent.
56. King Hong also induces infringement by Office Star, knowing that Herman Miller
infringing profits under 35 U.S.C. 289.
COUNT III
CAPER TRADE DRESS INFRINGEMENT 15 U.S.C. 1125(a)
62. Herman Miller has valid and protectable trade dress rights in the appearance of its
Caper chairs.
63. Office Stars importation, marketing and sale of chair model Nos. 8610, 8620,
8640, 8455, STC 865, 82710, 82710, 82740, 86710, 86724, 86725, 86740 and STC866 infringe
on Herman Millers trade dress rights because the accused chairs are likely to cause confusion, or
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to cause mistake, or to deceive as to the affiliation, connection, or association of the chairs; or as
to the origin, sponsorship, or approval of the chairs. Such confusion can happen in at least three
ways: (1) a consumer might purchase an accused chair believing it to be from the same source as
Caper, or to be affiliated or approved by that source, (2) a consumer might have an initial interest
in an accused chair believing it to come from the same source as Caper, or to be affiliated or
approved by that source, even if that mistake is dispelled at the point of sale, or (3) a consumer
might see an accused chair after it has already been purchased and be interested in purchasing
one believing it to come from the same source as Caper, or to be affiliated or approved by that
source.
64. Confusion is likely because the accused chairs are similar products sold at
relatively similar price points within the same sales channels to the same ultimate target end
users. As examples, both Herman Miller and Office Star invest heavily in marketing through the
Neo Con trade show, and are heavily featured in the industry publication Monday Morning
Quarterback. Upon information and belief, Office Star targets and sells to Herman Miller
dealers, and engages in numerous competitive bids against Herman Miller each year.
65. Upon information and belief, Office Star has willfully created a likelihood of
confusion by deliberately selling copies of the Caper chair with full awareness that Herman
Miller had intellectual property rights in the design, and by failing to consult a lawyer regarding
infringement.
66. Upon information and belief, King Hong actively participates in and induces this
market confusion by importing accused chairs into the United States and generally supporting
Office Stars acts of infringement. King Hongs infringement is similarly willful because, upon
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information and belief, it was done with knowledge of Herman Millers intellectual property
rights and without consulting a lawyer.
infringing profits as a proxy for Herman Millers lost sales.
69. Alternatively or additionally, Herman Miller seeks to recover a reasonable
royalty.
70. Alternatively or additionally, Herman Miller seeks to recover the costs of
remedial advertising.
71. Alternatively or additionally, Herman Miller seeks to recover a sum of money
sufficient to compensate for harm to its goodwill and reputation, and other actual injuries.
72. Herman Miller seeks enhanced damages and attorneys fees.
73. Herman Miller seeks injunctive relief to forestall the irreparable injury that it is
suffering.
COUNT IV
MICHIGAN COMP. LAWS 445.903 CAPER DESIGN
74. Herman Miller herby incorporates the allegation of Claim III for infringement
under the Lanham Act.
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75. The same facts that state a cause of action for infringement of the Caper trade
dress under the Lanham Act also state a cause of action under the Michigan Consumer Protection
Act, Michigan Comp. Laws 445.903.
76. Office Stars creation of willful likelihood of confusion constitutes unfair business
practices under the statute.
77. King Hongs creation of willful likelihood of confusion constitutes unfair
business practices under the statute.
78. Herman Miller will continue to suffer irreparable injury absent an injunction.
79. Herman Miller seeks damages in line with those sought under the Counts above.
COUNT V
COMMON LAW UNFAIR COMPETITION CAPER DESIGN
80. Herman Miller herby incorporates the allegation of Claim III for infringement
81. The same facts that state a cause of action for infringement of the Caper trade
dress under the Lanham Act also state a cause of action for common law unfair competition.
82. Office Stars creation of willful likelihood of confusion constitutes unfair
competition.
83. King Hongs creation of willful likelihood of confusion constitutes unfair
competition.
85. Herman Miller also seeks damages to compensate for its lost sales, or
alternatively or additionally, a reasonable royalty, or damages to compensate for harm to its
reputation.
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COUNT VI
D494,792 (792 Patent).
88. Office Stars importation, marketing and sale of at least chair model Nos. 88-
33BB918P, 88-Y22BP91A8, and 88-Y33BP91A8 infringe on the 792 Patent. Upon information
and belief, Office Stars infringement was willful because it was done with knowledge of
89. Jorng Wells importation of at least chair model Nos. 88-33BB918P, 88-
Y22BP91A8, and 88-Y33BP91A8 infringes on the 792 Patent. Upon information and belief,
Jorng Wells infringement was willful because it was done with knowledge of Herman Millers
patent.
90. Jorng Well also induces infringement by Office Star, knowing that Herman Miller
91. Novas facilitation of importation of at least chair model Nos. 88-33BB918P, 88-
Novas infringement was willful because it was done with knowledge of Herman Millers patent.
92. Nova also induces infringement by Office Star, knowing that Herman Miller owns
the 792 Patent.
the Mirra design is so unique and distinctive, the entire reason that a customer would purchase a
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would have sold Mirra chairs. Herman Miller therefore seeks recovery of all of its lost profits
94. Alternatively, Herman Miller seeks to recover all of Office Star, Jorng Well and
Novas infringing profits under 35 U.S.C. 289.
COUNT VII
D490,994 (994 Patent).
99. Office Stars importation, marketing and sale of at least chair model Nos. 88-
33BB918P, 88-Y22BP91A8, and 88-Y33BP91A8 infringe on the 994 Patent. Upon information
and belief, Office Stars infringement was willful because it was done with knowledge of
100. Jorng Wells importation of at least chair model Nos. 88-33BB918P, 88-
Jorng Wells infringement was willful because it was done with knowledge of Herman Millers
patent.
101. Jorng Well also induces infringement by Office Star, knowing that Herman Miller
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102. Novas facilitation of importation of at least chair model Nos. 88-33BB918P, 88-
Novas infringement was willful because it was done with knowledge of Herman Millers patent.
103. Nova also induces infringement by Office Star, knowing that Herman Miller owns
the 994 Patent.
Novas infringing profits under 35 U.S.C. 289.
COUNT VIII
MIRRA TRADE DRESS INFRINGEMENT - 15 U.S.C. 1125(a)
109. Herman Miller has valid and protectable trade dress rights in the appearance of its
Mirra chairs.
110. Office Stars importation, marketing and sale of chair model Nos. 88-33BB918P,
88-Y22BP91A8, and 88-Y33BP91A8 infringe on Herman Millers trade dress rights because the
accused chairs are likely to cause confusion, or to cause mistake, or to deceive as to the
affiliation, connection, or association of the chairs; or as to the origin, sponsorship, or approval
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of the chairs. Such confusion can happen in at least three ways: (1) a consumer might purchase
an accused chair believing it to be from the same source as Mirra, or to be affiliated or approved
by that source, (2) a consumer might have an initial interest in an accused chair believing it to
come from the same source as Mirra, or to be affiliated or approved by that source, even if that
mistake is dispelled at the point of sale, or (3) a consumer might see an accused chair after it has
already been purchased and be interested in purchasing one believing it to come from the same
source as Mirra, or to be affiliated or approved by that source.
111. Confusion is likely because the accused chairs are similar products sold at
relatively similar price points within the same sales channels to the same ultimate target end
users. As examples, both Herman Miller and Office Star invest heavily in marketing through the
Neo Con trade show, and are heavily featured in the industry publication Monday Morning
Quarterback. Upon information and belief, Office Star targets and sells to Herman Miller
dealers, and engages in numerous competitive bids against Herman Miller each year. Upon
information and belief, there have also been instances of actual confusion, wherein potential
customers have approached Office Star asking Office Star to sell or offer to sell them the Mirra
chair.
112. Upon information and belief, Office Star has willfully created a likelihood of
confusion by deliberately selling copies of the Mirra chair with full awareness that Herman
Miller had intellectual property rights in the design, and by failing to consult a lawyer regarding
infringement.
113. Upon information and belief, Jorng Well actively participates in and induces this
Office Stars acts of infringement. Jorng Wells infringement is similarly willful because it was
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done with knowledge of Herman Millers intellectual property rights and without consulting a
lawyer.
114. Upon information and belief, Nova actively participates in and induces this
Office Stars acts of infringement. Novas infringement is similarly willful because it was done
with knowledge of Herman Millers intellectual property rights and without consulting a lawyer.
Novas infringing profits as a proxy for Herman Millers lost sales.
117. Alternatively or additionally, Herman Miller seeks to recover a reasonable
royalty.
118. Alternatively or additionally, Herman Miller seeks to recover the costs of
remedial advertising.
119. Alternatively or additionally, Herman Miller seeks to recover a sum of money
sufficient to compensate for harm to its goodwill and reputation, and other actual injuries.
120. Herman Miller seeks enhanced damages and attorneys fees.
121. Herman Miller seeks injunctive relief to forestall the irreparable injury that it is
suffering.
25
4823-1922-9509.1
COUNT IX
MICHIGAN COMP. LAWS 445.903 - MIRRA DESIGN
122. Herman Miller herby incorporates the allegation of Claim VIII for infringement
123. The same facts that state a cause of action for infringement of the Mirra trade
dress under the Lanham Act also state a cause of action under the Michigan Consumer Protection
Act, Michigan Comp. Laws 445.903.
124. Office Stars creation of willful likelihood of confusion constitutes unfair business
125. Jorng Wells creation of willful likelihood of confusion constitutes unfair business
126. Novas creation of willful likelihood of confusion constitutes unfair business
128. Herman Miller seeks damages in line with those sought under the Counts above.
COUNT X
COMMON LAW UNFAIR COMPETITION - MIRRA DESIGN
129. Herman Miller herby incorporates the allegation of Claim VIII for infringement
130. The same facts that state a cause of action for infringement of the Mirra trade
dress under the Lanham Act also state a cause of action for common law unfair competition.
131. Office Stars creation of willful likelihood of confusion constitutes unfair
competition.
26
4823-1922-9509.1
132. Jorng Wells creation of willful likelihood of confusion constitutes unfair
competition.
133. Novas creation of willful likelihood of confusion constitutes unfair competition.
135. Herman Miller also seeks damages to compensate for its lost sales, or
alternatively or additionally, a reasonable royalty, or damages to compensate for harm to its
reputation.
27
4823-1922-9509.1
PRAYER FOR RELIEF
WHEREFORE, Herman Miller respectfully requests that the Court enter judgment as
follows:
a) Permanently enjoining Defendants, their agents, representatives, employees,
assigns, and suppliers, and all persons acting in concert or privity with them, from infringing the
patents and trade dress for the Caper and Mirra designs, or using any other designs likely to
cause confusion, to cause mistake, or to deceive with respect to Caper and Mirra, or otherwise
competing unfairly with Herman Miller;
b) Finding that Defendants conduct was willful;
c) Awarding Herman Miller all damages to and costs incurred by it because of
Defendants infringing activities and other conduct complained of herein, together with all of
Defendants infringing profits;
d) Awarding Herman Miller treble damages;
e) Declaring that this an exceptional case and awarding Herman Miller its
reasonable attorneys fees;
f) Awarding Herman Miller pre-judgment and post-judgment interest on the
damages caused by Defendants infringing activities and other conduct complained of herein;
and
g) Granting Herman Miller such other and further relief as the Court may deem just
and proper under the circumstances.
DEMAND FOR JURY TRIAL
Under Rule 38 of the Federal Rules of Civil Procedure, Herman Miller requests a trial by
jury of any issues so triable by right.
28
4823-1922-9509.1
Dated: March 21, 2017 Respectfully submitted,
By: /s/ Irina N. Kashcheyeva
Irina N. Kashcheyeva (P72575)

FOLEY & LARDNER LLP
500 Woodward Avenue, Suite 2700
Detroit, MI 48226-3489
Telephone: 313.234.7170
Email: ikashcheyeva@foley.com
Jonathan E. Moskin, Esq.

FOLEY & LARDNER LLP
90 Park Avenue
New York, NY 10016
Telephone: 212.682.7474
Email: jmoskin@foley.com
Richard J. McKenna (P41952)

FOLEY & LARDNER LLP
777 East Wisconsin Avenue
Milwaukee, WI 53202-5306
Telephone: 414.297.5723
Email: rmckenna@foley.com
Jean-Paul Ciardullo, Esq. (CA Bar No.

284170) [admission application forthcoming]
FOLEY & LARDNER LLP
555 S. Flower St., Suite 3500
Los Angeles, CA 90071
Telephone: 213.972.4500
Email: jciardullo@foley.com
Attorneys for Plaintiff

HERMAN MILLER, INC.
29
4823-1922-9509.1
Case 1:17-cv-00269 ECF No. 1-1 filed 03/21/17 PageID.30 Page 1 of 3
EXHIBIT A.1
Sample Caper Chairs
EXHIBIT A.2
U.S. Patent No. D 449,938
USOOD449938B1
(12) United States Design Patent (10) Patent N0.: US D449,938 S

Vanderiet et al. (45) Date of Patent: ** Nov. 6, 2001
(54) CHAIR D. 420,828 * 2/2000 Bertoni ................................ .. D6/38O
(75) Inventors: Douglas M. Vanderiet, Holland, MI * Cited by examiner

(Us); Je? Weber> Mlnneagolis> MN Primary ExaminerGary D. Watson
(Us); TQdd D- Kruplczewlcz> (74) Attorney, Agent, or FirmBrinks, Hofer, Gilson &
Caledoma, MI (US) Lione
(73) Assignee: Herman Miller, Inc., Zeeland, MI (US) (57) CLAIM
(**) Term: 14 Years The ornamental design for a chair, as shoWn.
DESCRIPTION
(21) Appl. No.: 29/123,667
FIG. 1 is a perspective vieW of a ?rst embodiment of a chair;
(22) Flled: May 22 2000 FIG. 2 is a front vieW of the ?rst embodiment;
(51) LOC (7) c1. ....................................................... .. 06-01 FIG- 3 is a right View of the ?rst embodiment;
(52) D6580; 136/369 FIG. 4 is a left vieW of the ?rst embodiment;
(58) Field of Search ........................... .. D6/334, 369, 374, FIG- 5 is a Year View Of the ?rst embodiment;
136/379, 380, 500, 501, 502; 297/4451, FIG. 6 is a top VICW'Of the ?rst embodiment;
4461 FIG. 7 1s a bottom view of the ?rst embodiment;
FIG. 8 is a perspective vieW of a second embodiment of the
(56) References Cited Chair;
FIG. 9 is a front vieW of the second embodiment;
U'S' PATENT DOCUMENTS FIG. 10 is a right vieW of the second embodiment;
174,472 * 4/1955 Roth .................................... .. D6/374 FIG- 11 is a left View Of the second embodiment;
e
195,620 * 7/1963 Chapman et al. .................. .. D6/374 FIG. 12 is a rear vieW of the second embodiment;
233,720 * 11/1974 Koepke - - - - - - - - - - - - - -- D6/374 FIG. 13 is a top vieW of the second embodiment; and,
3917089 * 2/1998 C9 ~_~ ~ ~ ~ ~ ~ ~ ~ ~ ~ " 136/366 FIG. 14 is a bottom vieW of the second embodiment.
*
404,586 1/1999 Citterio ...... . . . .. D6/38O
406,951 * 3/1999 Herrmann ........................... .. D6/379

. 411,772 * 7/1999 Piretti .................................. .. D6/374 1 Claim, 8 Drawing Sheets
U S Patent Nov. 6, 2001 Sheet 1 of 8 US D449,938 S

U.S. Patent Nov. 6, 2001 Sheet 2 of 8 US D449,938 S
ET)
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0000000000000 O
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000000000000
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00308080803030???
00000000000
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000000000000
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FIG. 6 \ Q

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000000000
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l4FIG.
EXHIBIT A.3
USO0D455571S
(12) United States Design Patent (10) Patent No.: US D455,571 S

Van De Riet et al. (45) Date of Patent: ** Apr. 16, 2002
(54) OFFICE CHAIR D227,960 S * 7/1973 Ekwan ...................... .. D6/374

D346,501 S * 5/1994 Llusca .. ... ... . . . . .. D6/374
(75) Inventors: Douglas M. Van De Riet, Holland, MI D406,951 S

D411,772 S
*
*
3/1999
7/1999
Herrmann .... .. D6/379
Piretti ....................... .. D6/374
(US); J e?' Weber, Minneapolis, MN
(US); Todd D. Krupiczewicz, * cited by examiner
Caledonia, MI (US)
Primary ExaminerGary D. Watson
(73) Assignee: Herman Miller, Inc., Zeeland, MI (US) (74) Attorney, Agent, or FirmBrinks Hofer Gilson &
Lione
(**) Term: 14 Years
(57) CLAIM
(21) Appl. No.: 29/146,911
The ornamental design for an of?ce chair, as shoWn and
(22) Filed: Aug. 17, 2001 described.
Related US. Application Data DESCRIPTION
(62) Division of application No. 29/123,667, ?led on May 22, FIG. 1 is a perspective vieW of a ?rst embodiment of a chair;
2000, now Pat. No. Des. 449,938. FIG. 2 is a front vieW of the ?rst embodiment;
FIG. 3 is a right vieW of the ?rst embodiment;
(51) LOC (7) Cl. .................................................. .. 06-01
(52) US. Cl. ........................................ .. D6/374; D6/380 FIG. 4 is a left vieW of the ?rst embodiment;
(58) Field of Search ........................ .. D6/334, 374, 375, FIG. 5 is a rear vieW of the ?rst embodiment;
D6/379, 380, 500, 501, 502; 297/4451, FIG. 6 is a top vieW of the ?rst embodiment; and,
446.1 FIG. 7 is a bottom vieW of the ?rst embodiment.
The broken lines shoWn are for environmental purposes only
(56) References Cited and form no part of the claimed design.
U.S. PATENT DOCUMENTS
D195,620 S * 7/1963 Chapman et al. .......... .. D6/374 1 Claim, 4 Drawing Sheets
U.S. Patent A r. 16 2002 Sheet 1 of4

U.S. Patent Apr. 16, 2002 Sheet 2 of4 US D455,571 S



UNITED STATES PATENT AND TRADEMARK OFFICE
CERTIFICATE OF CORRECTION
PATENT NO. : Des. 455,571 S Page 1 of 1

DATED : April 16, 2002
INVENTOR(S) : D. M. Van De Riet et al.
It is certified that error appears in the above-identi?ed patent and that said Letters Patent is
hereby corrected as shown below:
Title page,
Item [57], CLAIM,
Line 1, delete for an office chair, as shown and substitute -- for a chair as shown -
in its place.
Signed and Sealed this
Fourth Day of February, 2003
JAMES E. ROGAN
Director ofthe United States Patent and Trademark O?ice
EXHIBIT B.1
Sample Mirra Chairs
EXHIBIT B.2
llllllllllllllllllllllllllll|l||l|l|l|||||l|l||lllllllllllllllll|l|||l||ll|
USO0D494792S1
(12) United States Design Patent (10) Patent N0. S

Schmitz et al. Da e 0 Pa .t e u UM DANJ,427,4,9220SM
(54) BACK FOR A SEATING STRUCTURE Copy of patent application Ser. No. 29/155,590 for Back
for a Seating Structure by SchmitZ et al., ?led Feb. 13,
(75) Inventors: Johann Burkhard Schmitz, Berlin 2002.
(DE); Claudia Plikat> Berlin (DE); Digital image of Ypsilon by Vitra, date unknown.
Nicolai Nteuberb Berlin (DE); Carola Digital image of Project 2000 by Sitag, date unknown.
g E); Roland R Digital image of Fluid by allseating, date unknown.
' Digital image of HAG H05 by HAG, date unknown.
(73) Assignee: Herman Miller, Inc., Zeeland, MI (US) Digital image of Konca by Kastel, date unknown.
Digital image of Vigor/ Topdeq, date unknown.
(**) Term: 14 Years Digital image of NetWeb/Topdeq, date unknown.
Digital image of Lucy by Vecta, date unknown.
(21) Appl. No.: 29/169,151 Digital image of Open up/Cairo, date unknown.
(22) Filed: Oct. 15, 2002 Digital image of IB Office Seating by Bieffe, date
unknown.
06' Digital image of Freedom by Humanscale, date unknown.
(58)
(52)
(51) Field
US.
LOCCl.of
(7) Search
Cl. ~~ D6/502 Digital image of Cordo by Klober, date unknown.
D6/334> 364> 365> Copy of Digital images of Please by Steelcase, date
D6/366, 367, 500, 501, 502; 297/452.42, unknown
452'46 X99 Haworth brochure, date unknown.
Ypsilon vitra. brochure, date unknown.
(56) References Clted IZZydesign Maxwell brochure, date unknown.
U.S. PATENT DOCUMENTS
Primary ExaminerDoris V. Coles
2,931,427 A * 4/1960 Goldstein 297/452.46 Assistant ExaminerT. Chase Nelson
2 9 7M 5 2 A 6 (74) Attorney, Agent, or FirmBrinks Hofer Gilson &
3,014,762
3,006,688 A * 12/1961
10/1961 Mauser
Ouellette
.. 297/4451
Lione
3,138,404 A * 6/1964 Newton 297/452.46
13201355 5 6/1965 Cavalli
D273,728 S 5/ 1984 Ca?ero
(57) CLAIM
4,556,254 A 12/1985 Roberts The ornamental design for a back for a seating structure, as
4,722,569 A 2/1988 Morgenstern et al. shown and described.
4,915,448 A 4/1990 Morgenstern et al.
DESCRIPTION
(List continued on neXt page.)
FIG. 1 is a perspective view of a back for a seating structure;
FOREIGN PATENT DOCUMENTS
FIG. 2 is a right side view of the back shown in FIG. 1;
W0 WO 93/25121 12/ 1993 FIG. 3 is a front view of the back shown in FIG. 1;
W0 WO 00/22961 4/2000 FIG. 4 is a rear view of the back shown in FIG. 1;
OTHER PUBLICATIONS FIG. 5 is a left side view of the back shown in FIG. 1;
C f 1_ _ S N 29/155 591 f T k FIG. 6 is a top view of the back shown in FIG. 1; and,
opy o patent app 1cat1on er. 0. , or as FIG 7 - b n - f th b k h . FIG 1
Chair by SchmitZ et al., ?led Feb. 13, 2002. ' 1S a O Om VleW 0 6 ac S own In ' '
Copy of patent application Ser. No. 29/169,159 for Task

Chair by SchmitZ et al., ?led Oct. 15, 2002. 1 Claim, 4 Drawing Sheets
US D494,792 S
Page 2
US. PATENT DOCUMENTS D439,451 S * 3/2001 Simons, Jr. et a1. ....... .. D6/502
* _ D440,419 S 4/2001 R6der
5,106,161 A 4/1992 Meiller ................ .. 297/452.46 134427791 S 50001 Simons Jr_ et aL
3322739

2 3/133;
/
gtumpfetal-
aotome
D444,309 s
D444,955 s
7/2001 Nagamitsu
7/2001 Su
5,486,035 A 1/1996 Koepke et a1.
5685 606 A 11/1997 Lance 6,254,186 B1 7/2001 FalZon
. D449,172 S * 10/2001 Van De Riet et a1. ..... .. D6/366
5,797,652 A 8/1998 Darbyshire .
5,860,700 A 1/1999 Lance D449,174 S 10/2001 Nell
5,871,256 A 2/1999 Kogai. D451,293 S 12/2001 Su
. D453,079 S 1/2002 Ma
5,904,400 A 5/1999 W61 .
- D456,160 S * 4/2002 Van De Riet et a1. ..... .. D6/366
5,975,632 A 11/1999 Ginat
D417,792 S 12/1999 Hansen et a1. D456,626 S 5/2002 Su
D456,650 S 5/2002 Ball et a1.
D423,259 S 4/2000 Grove
D457,023 S * 5/2002 Ball et a1. .................. .. D6/502
D424,824 S 5/2000 Chu .
D460,300 S * 7/2002 Fi?eld et a1. .............. .. D6/502
6,062,649 A 5/2000 Nagel et a1.
6,099,076 A 8/2000 Nagel et a1. D461,323 S 8/2002 Su .
D463,693 S * 10/2002 Hsieh ........................ .. D6/502
D431,400 S 10/2000 Grove .
D471,042 S * 3/2003 SchmitZ et a1 . D6/502
D434,918 S 12/2000 Arko et a1. D471 370 S * 32003 S h .t t 1 D6 366
6,179,384 B1 1/2001 DeKraker et a1. 7 / C m e a ' ' /
D437,701 S 2/2001 Bellini et 211.
6,189,971 B1 2/2001 WitZig * cited by examiner
U.S. Patent Aug. 24, 2004 Sheet 1 0f 4 US D494,792 S
FIG. I


FIG .6
A
.35
_S:
O.SI-
FIG?
EXHIBIT B.3

Herman Miller v. Blumenthal - Complaint

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Case 1:17-cv-00269 ECF No. 1 filed 03/21/17 PageID.

UNITED STATES DISTRICT COURT

HERMAN MILLER, INC., a Michigan

Zeeland, Michigan 49464.

2. On information and belief, Office Star is a corporation organized and existing

Archibald Avenue, Ontario, California 91761.

3. On information and belief, Jorng Well is a corporation organized and existing

Jen Hsiang, Tainan City, Taiwan.

Hsiao East Road, Taipei, Taiwan.

5. On information and belief, Nova Innovations is a corporation organized and

so the two will be jointly referred to herein as Nova.

6. On information and belief, King Hong is a corporation organized and existing

Taliao, Kaohsiung 831, Taiwan.

JURISDICTION AND VENUE

unfair competition under Michigan common law.

Miller is headquartered and the harms to Herman Miller are felt.

11. Founded in Zeeland, Michigan in 1905, Herman Miller is a world-famous

and have been recognized as works of art by industry professionals.

12. In 2000, Herman Miller commissioned designer Jeff Weber to develop a

which became an immediate success.

that have the same appearance.

functional advantages. There is also no particularly simple or inexpensive manufacturing

of design elements reflects artistic flourish.

recognizable as a distinctive design that a significant number of potential consumers of office

resell the chairs into the marketplace.

JAK-SP, Dkt. 344.

with competent counsel regarding known Herman Miller rights.

sample image of a Mirra chair.

Below is a sample image of a Mirra 2 chair.

coupled with a butterfly-shaped backrest whose surface is covered by a large number of

such a way that there would be a likelihood of confusion among consumers.

that have the same appearance.

functional advantages. There is also no particularly simple or inexpensive manufacturing

of design elements reflects artistic flourish.

recognizable as a distinctive design that a significant number of potential consumers of office

become highly recognizable and distinctive in the market.

proceeded with its conduct without regard for them.

INFRINGEMENT OF U.S. PATENT NO. D449,938

43. The preceding paragraphs are incorporated herein by reference.

D449,938 (938 Patent).

willful because it was done with knowledge of Herman Millers patent.

owns the 938 Patent.

associated with the number of accused chairs sold.

infringing profits under 35 U.S.C. 289.

50. Alternatively, Herman Miller seeks to recover a reasonable royalty.

recovery of its attorneys fees.

INFRINGEMENT OF U.S. PATENT NO. D455,571

52. The preceding paragraphs are incorporated herein by reference.

D455,571 (571 Patent).

Herman Millers patent.

owns the 571 Patent.

associated with the number of accused chairs sold.

infringing profits under 35 U.S.C. 289.

59. Alternatively, Herman Miller seeks to recover a reasonable royalty.

recovery of its attorneys fees.

CAPER TRADE DRESS INFRINGEMENT 15 U.S.C. 1125(a)

61. The preceding paragraphs are incorporated herein by reference.

to cause mistake, or to deceive as to the affiliation, connection, or association of the chairs; or as

rights and without consulting a lawyer.

associated with the number of accused chairs sold.

infringing profits as a proxy for Herman Millers lost sales.

69. Alternatively or additionally, Herman Miller seeks to recover a reasonable

70. Alternatively or additionally, Herman Miller seeks to recover the costs of

71. Alternatively or additionally, Herman Miller seeks to recover a sum of money