Case 3:17-cv-11321 Document 1 Filed 11/06/17 Page 1 of 10 PageID: 1

Angela Foster, Esq.

Law Office of Angela Foster
206 Birchwood Court
North Brunswick, New Jersey 08902
Telephone: (732)-821-9363
Facsimile: (732)-821-4692
FosterAtLaw@aol.com

Lorri W. Cooper, Esq.

Medley, Behrens &Lewis LLC
6100 Rockside Woods Boulevard
Suite 440
Independence, OH 44131
(216) 264-4075
lcooper@medleybehrens.com

Attorneys for Plaintiff Discovery Inc.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Discovery Inc., a California corporation ) Civil Action No.

)
Plaintiff ) Complaint
)
v. ) Jury Trial Demanded
)
Kennedy International Inc., a New Jersey )
corporation )
)
Defendant.

Discovery Inc. (Discovery or Plaintiff), by way of complaint against Defendant says:

PARTIES

1. Discovery is a corporation organized under the laws of California, having its

principal place of business in Corte Madera, California. Discovery is recognized throughout the

world as a leading designer and merchandiser of houseware products. In particular, Discovery

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designs, has made, and sells housewares that improve storage options for consumers in the

United States and Canada.

2. Defendant is, on information and belief, a corporation organized under the laws

of New Jersey with a principal place of business at 11 Corn Road, Dayton, New Jersey, 08810.

Defendant claims to have over 10,000 items in its product line, including laundry, bath, kitchen,

organizational products, home dcor, decorative hardware, and linens.

JURISDICTION

3. This Court has subject matter jurisdiction pursuant to 28 U.S.C. 1331 and 1338,

and 35 U.S.C. 271 and 281 for claims arising under the Patent Laws of the United States.

4. This Court has personal jurisdiction over Defendant because Defendant (i) is a

New Jersey corporation, (ii) is headquartered within the State of New Jersey, and (iii) operates

one of its two showrooms within the State of New Jersey.

5. Defendant is subject to the general jurisdiction of this court because Defendant is

incorporated within the State of New Jersey and carries on a continuous and systematic part of its

business in this state. Defendant is headquartered and operates a showroom in Dayton, New

Jersey.

VENUE

6. Venue in this Court is proper under 28 U.S.C. 1391 and 1400(b) because

Defendant resides in this district, is incorporated and headquartered within the State of New

Jersey, has a regular and established place of business in this district, conducts business within

this judicial district, its agents or affiliates can be found in this judicial district, and acts giving

rise to this Complaint occurred within this judicial district.

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BACKGROUND

7. Discovery has developed a distinctive family of storage baskets known as the

HANDI BASKETS, which are sold under the PERFECT PANTRY brand.

8. Discoverys HANDI BASKETS are designed for improving the organization

and storage of goods in the kitchen, pantry, bath and elsewhere in the home. They include a

handle that permits a consumer to easily grasp the basket, making the basket well-suited for

storage on kitchen, pantry, and bathroom shelves. The baskets are sized to properly store the top

fifteen high volume food categories that consumers purchase and store in their kitchens and

pantries. The HANDI BASKETS are manufactured from a clear high quality SANS plastic

material, lending further distinctiveness to the basket designs. Discoverys HANDI BASKETS

have been one of its hottest selling product lines, amounting to nearly 50% of sales. The

popularity of the baskets continues to grow, with recent product placements including Wal-Mart,

among others.

9. The designs of Discoverys baskets are protected by various design patents,

including United States Design Patent Nos. D720,931 S (the 931 patent) and D688,870 S (the

870 patent), copies of which are attached as Exhibits A and B. The 931 patent claims the

ornamental design of a basket, as shown and described, in part, as follows:

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10. The 870 patent claims the ornamental design of a basket, as shown and

described, in part, as follows:

11. Defendant is importing, selling, and offering for sale storage baskets under the

name KITCHEN BASICS that infringe the 931 and 870 design patents. These infringing

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products can be found at retail stores in the United States, such as T.J. Maxx. The following are

true and accurate pictures of storage baskets imported and sold by Defendant, as purchased by

Plaintiff from a T.J. Maxx retail store in California:

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12. On July 24, 2017, Plaintiff gave Defendant notice of its infringement by letter

from its counsel, a copy of which is attached as Exhibit B. Plaintiff demanded, among other

things, that Defendant immediately cease and desist from selling, importing, or advertising the

accused products and cancel any orders for the current or future accused products, pulling

products from store or stock room shelves, and discontinuing the sale of any such products in the

United States. Plaintiff also demanded that Defendant provide written confirmation that it would

immediately and permanently cease and desist from further infringement.

13. On August 23, 2017, after not receiving a response from Defendant, Plaintiff gave

Defendant further notice by letter from its counsel, a copy of which is attached as Exhibit C, that

it would be forced to take appropriate legal action if Defendant did not contact Plaintiff.

14. Despite notice of the patents and Plaintiffs claim of infringement, Defendant has

never provided any statement that it has ceased selling, offering for sale, or importing its

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infringing storage baskets. To the contrary, on information and belief, Defendant continues to

sell and offer for sale storage baskets that infringe the 931 and 870 patents.

COUNT I

INFRINGEMENT OF DESIGN PATENT NO. D720,931

15. Plaintiff repeats and re-alleges the allegations of paragraphs 1 through 14 of this

complaint as if fully set forth at length.

16. The 931 patent was duly and legally issued on January 13, 2015 and identifies

Mark Levie as the inventor and Discovery as the assignee.

17. Discovery is the owner of the entire right, title, and interest in and to the 931

patent, including the right to bring suit for injunctive relief and damages.

18. Defendant has infringed and is infringing the 931 patent, either literally or under

the doctrine of equivalents, by using, offering to sell, selling, and/or importing into the United

States, storage baskets that fall within the scope of the claim of the 931 patent, all in violation

of 35 U.S.C. 271.

19. Plaintiff has been damaged and continues to be damaged by Defendants

infringement of the 931 patent, in an amount to be determined at trial.

20. Plaintiff has suffered, is suffering, and will continue to suffer irreparable injury

for which there is no adequate remedy at law unless Defendants infringement of the 931 patent

is enjoined by this Court.

21. Despite having actual knowledge of the 931 patent Defendant embarked on and

continued its unlicensed and unauthorized infringement with no regard for Plaintiffs patent

rights. This infringement was either known to Defendant, or so obvious that it should have been

known to Defendant. On information and belief, Defendant copied the features of Plaintiffs

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patented baskets. Defendants infringement of the 931 patent is therefore willful, intentional,

and deliberate.

COUNT II

INFRINGEMENT OF DESIGN PATENT NO. D688,870

22. Plaintiff repeats and re-alleges the allegations of paragraphs 1 through 21 of this

complaint as if fully set forth at length.

23. The 870 patent was duly and legally issued on September 3, 2013 and identifies

Mark Levie as the inventor and Discovery as the assignee.

24. Discovery is the owner of the entire right, title, and interest in and to the 870

patent, including the right to bring suit for injunctive relief and damages.

25. Defendant has infringed and is infringing the 870 patent, either literally or under

the doctrine of equivalents, by using, offering to sell, selling, and/or importing into the United

States, storage baskets that fall within the scope of the claim of the 870 patent, all in violation of

35 U.S.C. 271.

26. Plaintiff has been damaged and continues to be damaged by Defendants

infringement of the 870 patent, in an amount to be determined at trial.

27. Plaintiff has suffered, is suffering, and will continue to suffer irreparable injury

for which there is no adequate remedy at law unless Defendants infringement of the 870 patent

is enjoined by this Court.

28. Despite having actual knowledge of the 870 patent, Defendant embarked on and

continued its unlicensed and unauthorized infringement with no regard for Plaintiffs patent

rights. This infringement was either known to Defendant, or so obvious that it should have been

known to Defendant. On information and belief, Defendant copied the features of Plaintiffs

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patented baskets. Defendants infringement of the 870 patent is therefore willful, intentional,

and deliberate.

RESERVATION OF RIGHTS

Plaintiff reserves the right to supplement or amend its Complaint, including through the

addition of further claims, based on the course of discovery and proceedings in this action.

REQUESTS FOR RELIEF

WHEREFORE, Plaintiff requests for the following relief:

1. A finding that the 931 and 870 patents are valid and have been infringed by

Defendant.

2. An injunction permanently enjoining Defendant, its directors, officers, agents,

servants, employees and all other persons in active concert or participation with any of them

from:

a. Directly or indirectly infringing the 931 and 870;

b. Continuing to make, use, sell, or offer to sell a product that infringes the 931 or

870 patent; and

c. Assisting, inducing, or aiding and abetting any other person in engaging in any of

the activities prohibited in subparagraphs (a) and (b) above.

3. An order requiring the impounding and destruction of all products in the

possession, custody, or control of Defendant that infringe the 931 or 870 patent.

4. An order requiring the Defendant to file with the Court and serve on the Plaintiff,

within 30 days after service of the Courts order as requested for above, a report (or other form

of proof) in writing under oath setting forth in detail the manner and form in which Defendant

has complied with this Courts injunction and order.

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5. A judgment in favor of Plaintiff and against Defendant for all damages sustained

by Plaintiffs and/or any applicable statutory damages, including disgorgement of Defendants

profits under 35 U.S.C. 289, costs and attorneys fees of this action, treble damages, and

prejudgment and post-judgment interest at the maximum rate allowed by law.

6. An accounting from Defendant of all gains, profits, and advantages of any sort

derived from acts of patent infringement and/or other violations of law as alleged herein.

7. An order requiring that all gains, profits, and advantages of any sort derived from

acts of patent infringement and/or other violations of law as alleged herein be deemed to be held

in a constructive trust for the benefit of Plaintiff.

8. A finding that this case is exceptional within the meaning of 35 U.S.C. 285 and

an order awarding Plaintiff its reasonable attorneys fees, expenses, and costs incurred in

connection with this action.

9. An order for such other and further relief as the Court deems just, equitable or

otherwise appropriate in the circumstances, including punitive or exemplary damages.

JURY DEMAND

Pursuant to Federal Rule of Civil Procedure 38(b), Discovery Inc., hereby

demands a trial by jury on all issues so triable.

Respectfully submitted,

Dated: November 06, 2017 /s/ Angela Foster

Angela Foster

LAW OFFICE OF ANGELA FOSTER

206 Birchwood Court
North Brunswick, New Jersey 08902
Telephone: (732)-821-9363
Facsimile: (732)-821-4692
Email: fosteratlaw@aol.com
Attorney for Plaintiff Discovery Inc.

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JS 44 (Rev. 06/17) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

Discovery Inc Kennedy International Inc

(b) County of Residence of First Listed Plaintiff Marin County, CA County of Residence of First Listed Defendant Middlesex County, NJ
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Angela Foster, Esq. - Law Office of Angela Foster Unkonwn
2906 Birchwood Ct, No. Brunswick, NJ 732-821-9363

II. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
1 U.S. Government 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4
of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a 3 3 Foreign Nation 6 6

Foreign Country
IV. NATURE OF SUIT (Place an X in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act
120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC
130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a))
140 Negotiable Instrument Liability 367 Health Care/ 400 State Reapportionment
150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust
& Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking
151 Medicare Act 330 Federal Employers Product Liability 830 Patent 450 Commerce
152 Recovery of Defaulted Liability 368 Asbestos Personal 835 Patent - Abbreviated 460 Deportation
Student Loans 340 Marine Injury Product New Drug Application 470 Racketeer Influenced and
(Excludes Veterans) 345 Marine Product Liability 840 Trademark Corrupt Organizations
153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY 480 Consumer Credit
of Veterans Benefits 350 Motor Vehicle 370 Other Fraud 710 Fair Labor Standards 861 HIA (1395ff) 490 Cable/Sat TV
160 Stockholders Suits 355 Motor Vehicle 371 Truth in Lending Act 862 Black Lung (923) 850 Securities/Commodities/
190 Other Contract Product Liability 380 Other Personal 720 Labor/Management 863 DIWC/DIWW (405(g)) Exchange
195 Contract Product Liability 360 Other Personal Property Damage Relations 864 SSID Title XVI 890 Other Statutory Actions
196 Franchise Injury 385 Property Damage 740 Railway Labor Act 865 RSI (405(g)) 891 Agricultural Acts
362 Personal Injury - Product Liability 751 Family and Medical 893 Environmental Matters
Medical Malpractice Leave Act 895 Freedom of Information
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 790 Other Labor Litigation FEDERAL TAX SUITS Act
210 Land Condemnation 440 Other Civil Rights Habeas Corpus: 791 Employee Retirement 870 Taxes (U.S. Plaintiff 896 Arbitration
220 Foreclosure 441 Voting 463 Alien Detainee Income Security Act or Defendant) 899 Administrative Procedure
230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 871 IRSThird Party Act/Review or Appeal of
240 Torts to Land 443 Housing/ Sentence 26 USC 7609 Agency Decision
245 Tort Product Liability Accommodations 530 General 950 Constitutionality of
290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION State Statutes
Employment Other: 462 Naturalization Application
446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration
Other 550 Civil Rights Actions
448 Education 555 Prison Condition
560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an X in One Box Only)
1 Original 2 Removed from 3 Remanded from 4 Reinstated or 5 Transferred from 6 Multidistrict 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
35 USC 271
VI. CAUSE OF ACTION Brief description of cause:
Patent Infringement
VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: Yes No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
11/06/2017 //s// Angela Foster
FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

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 Case 3:17-cv-11321 Document 1-2 Filed 11/06/17 Page 1 of 1 PageID: 12

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Discovery Inc., a California corporation ) Civil Action No.

)
Plaintiff )
)
v. )
)
Kennedy International Inc., a New Jersey )
corporation
)
)
Defendant.

DISCLOSURE STATEMENT
The undersigned counsel for DISCOVERY INC certifies that this party is a non-
governmental corporate party and that this party does not have a parent corporation, nor is there
any publicly held corporation that owns 10% or more of this partys stock.

Angela Foster, Esq.

Law Office of Angela Foster

206 Birchwood Court

North Brunswick, New Jersey 08902

Date: November 6, 2017 ___//s// Angela Foster_______

ANGELA FOSTER

Instructions:
1. Disclosure Statement is to be filed as a separate document.
2. Select Case Type (Civil) from the menu bar at the top of the ECF screen.
3. Click on Other Documents.
4. Select Corporate Disclosure Statement.
5. Enter the case for which the Disclosure Statement is being filed.
6. Select the PDF document to file.
7. Select the party filing the Disclosure Statement.
8. If applicable, insert the name of the Corporate Parent or leave blank.
9. Proofread the docket text.
10. Submit the Disclosure Statement by clicking the NEXT button. DNJ-CMECF-005 (5/2/08)