Cozy Comfort Company v. Davie Clothing - Complaint

Case 2:21-cv-00310-MHB Document 1 Filed 02/19/21 Page 1 of 31
1 Gregory P. Sitrick
Arizona Bar No. 028756
2 gsitrick@messner.com
MESSNER REEVES LLP
3 2415 E. Camelback Road, Suite 700
Phoenix, Arizona 85016
4 Telephone: (602) 457-5059
Facsimile: (303) 623-0552
5
Attorneys for Plaintiff Cozy Comfort
6 Company LLC
8 UNITED STATES DISTRICT COURT

9 FOR THE DISTRICT OF ARIZONA
10
11 COZY COMFORT COMPANY LLC Case No. _______________________

12 Plaintiff, COMPLAINT FOR PATENT
INFRINGEMENT, TRADE DRESS
13 v. INFRINGEMENT AND UNFAIR
COMPETITION
14 DAVIE CLOTHING PTY LTD, and
BEDABOX LLC
15
Defendants. Demand for Jury Trial
16
17
18
19
20
21
22
23
24
25
26
27
28
{04598682 / 11} 1
COMPLAINT AND DEMAND FOR JURY TRIAL
2
Plaintiff COZY COMFORT COMPANY LLC (“Cozy Comfort” or
3 “Plaintiff”), by and through its attorneys, for its Complaint against defendants
4
DAVIE CLOTHING PTY LTD (“Davie Clothing”) and BEDABOX LLC
5
6 (“Bedabox”) (collectively the “Defendants”) alleges as follows:
7 INTRODUCTION
8
1. This action arises from Defendants’ willful and deliberate copying of
9
Plaintiff’s patented product design for a hooded wearable blanket and Defendants’
10
subsequent importation and distribution of this infringing product(s) within the
11
United States. Defendants’ direct imitation of Plaintiff’s product sought to cash in
12
on the designs, technology and global market created by Plaintiff in hooded
13
wearable blankets. However, the marketing, importation and sale of such product(s)
14
within the United States infringe upon the intellectual property rights of Plaintiff.
15
This illegal practice will continue unless and until the Court puts an end to it.
16
2. By this action Plaintiff seeks permanent injunctive relief, money
17
damages, exemplary damages and attorneys’ fees arising from Defendants’ (i)
18
patent infringement under the Patent Act, 35 U.S.C. § 271; (ii) federal trade dress
19
infringement and unfair competition under the Lanham Act; (iii) common law trade
20
dress infringement and unfair competition under Arizona law; and (iv) unjust
21
enrichment.
22
PARTIES
23
3. Plaintiff is a limited liability company formed under the laws of
24
Arizona with a principal place of business located in Cave Creek, Arizona.
25
4. Upon information and belief, Defendant Davie Clothing is a limited
26
liability company organized in Australia and has its principal place of business in
27
Australia.
28
{04598682 / 11} 2
1 5. Upon information and belief, Defendant Bedabox is a limited liability

2 company organized under the laws of Florida with a principal place of business in
3 Fort Lauderdale, Florida.
4 6. Plaintiff is the owner of intellectual property in relation to its flagship

5 product, a hooded wearable blanket known as “THE COMFY”, as well as other
6 related and associated designs, products and services.
7 JURISDICTION AND VENUE

8 7. This is an action for infringement against Defendants brought under the
9 Patent Act, 35 U.S.C. § 271 based upon Defendants’ unauthorized commercial
10 manufacture, use, importation, offer for sale and sale of wearable blankets which
11 infringe upon United States (“U.S.”) Patent Numbers D859,788 and D905,380.
12 Plaintiff also alleges infringement of trade dress protections afforded under the
13 Lanham Act, 15 U.S.C. §1051, et seq. and Unfair Competition under federal and
14 common law and afforded by the laws of the State of Arizona.
15 8. This Court holds original jurisdiction over the subject matter of this
16 action pursuant to 28 U.S.C. §1331 (federal question jurisdiction); 28 U.S.C. §
17 1338(b) (state claim of unfair competition joined with substantial and related federal
18 claim under trademark laws); 28 U.S.C. § 1367 (supplemental jurisdiction); and, the
19 doctrines of ancillary and pendent jurisdiction.
20 9. This court has personal jurisdiction over Defendants because

21 Defendants conduct business throughout the United States, including within the
22 state of Arizona, and have committed in this District the acts of patent and trade
23 dress infringement, and federal and state unfair competition, which have given rise
24 to this action.
25 10. Venue is proper in this District as Defendants have advertised to and

26 derived revenue from sales of products to citizens within this District and have
27 engaged in systematic and continuous business contacts within this State.
28 Defendants have availed themselves of the laws of the United States by seeking
{04598682 / 11} 3
1 federal registrations under its trademark laws for United States trademarks in
2 relation to the marketing, sale and distribution of the product(s) in dispute.
3 Defendants have had and continue to have significant contact with the state of
4 Arizona through their U.S. based websites, through U.S. based sales via
5 Amazon.com, distribution of products throughout the U.S., and have purposefully
6 availed themselves of Arizona’s laws.
8 BACKGROUND
9 11. THE COMFY was created by Brian Speciale and Michael Speciale
10 (collectively “the Speciales”) in April 2017. The Speciales are entrepreneurs whom
11 are citizens of the State of Arizona.
12 12. THE COMFY is an oversized wearable item designed for cozy warmth.
13 THE COMFY features a hood, cuffs, large arm coverings, and covers the majority
14 of a person’s upper and lower body. THE COMFY is known for its high-quality
15 materials and construction, featuring a layer of fleece microfiber on one side and
16 thick sherpa-type material on the opposite layer. THE COMFY also features a large
17 front pocket designed to allow its wearer to insert his or her hands for comfort,
18 storage or warmth. A logo of THE COMFY is featured on the lower left side
19 portion of this pocket. The product is sold in a variety of colors. A sample image of
20 the product appears below:
21
22
23
24
25
26
27
28
{04598682 / 11} 4
10
11
12
13
14
13. In April 2017, to facilitate the development and distribution of THE
15
COMFY, as well as the growth of the business developing around the product, the
16
Speciales organized Plaintiff, an Arizona limited liability company.
17
14. In May 2017, to solicit funds for its expanding business, Plaintiff,
18
through the Speciales, auditioned for the nationally broadcast television show, Shark
19
Tank. Shark Tank is a significantly popular and well-known reality show in which
20
businesses and/or product owners showcase their ideas to a panel of investors,
21
referred to on the show as “sharks.” The show is broadcast in the U.S. on the ABC
22
network, is featured on the cable network CNBC, and is available on demand on
23
Hulu and other streaming platforms. The show has won multiple Emmys for
24
Outstanding Structured Reality Program. The format is significantly popular with
25
licensed versions of the show produced and broadcast in many countries around the
26
world including Canada, Mexico, China, New Zealand and Australia.
27
28
{04598682 / 11} 5
1 15. After several rounds of successful auditions with the producers of

2 Shark Tank, the Speciales were approved to appear on the program to pitch and
3 feature THE COMFY on the 2017 end-of-the-year, holiday-themed episode of
4 Shark Tank.
5 16. On September 13, 2017, Plaintiff, as the assigned owner of the rights to
6 the design of THE COMFY, filed a patent application related to its designs, United
7 States Patent and Trademark Office (“USPTO”) Application No. 29/617,421. Two
8 years later, on September 17, 2019, that application matured into U.S. Patent No.
9 D859,788 (the “’788 Patent”). A true and correct copy of the ‘788 Patent is attached
10 hereto as Exhibit 1 and incorporated by reference.
11 17. On December 3, 2017, the episode of Shark Tank featuring THE

12 COMFY premiered in the U.S. On the episode, the Speicales discussed the potential
13 success of a business surrounding THE COMFY.
14 18. On the episode of Shark Tank, the Speciales displayed and discussed
15 several attributes of THE COMFY. This included the shape of the product, the
16 materials used in its construction (fleece and sherpa), the attached hood, the front
17 pocket and the fit of THE COMFY over the arms and body.
18 19. On the episode, several “shark” panelists displayed significant

19 enthusiasm regarding the product. On air, two of the sharks proposed investing into
20 Plaintiff. Ultimately, Plaintiff agreed to a proposal from one of the show’s sharks to
21 invest into the business.
22 20. Immediately following the airing of the 2017 Shark Tank episode
23 featuring THE COMFY, interest in and exposure to THE COMFY skyrocketed.
24 The product was not only featured on a popular, nationally broadcast television
25 program, but there was substantial exposure of THE COMFY through initial orders,
26 positive online reviews, online video clips and social media postings.
27 21. Plaintiff developed several other designs in addition to its original THE
28 COMFY. Plaintiff owns multiple U.S. Patents relating to its designs, as well as
{04598682 / 11} 6
1 multiple U.S. Trademark registrations and other common-law intellectual property
2 assets.
3 22. Plaintiff established and maintained a company website located at

4 https://thecomfy.com/, which since 2017 has displayed Plaintiff’s products, and
5 makes its products available for sale in the U.S. and throughout the world through
6 Amazon and other online and brick-and-mortar retailers.
7 23. Through its activities, Plaintiff established itself as an innovator and

8 leader in the wearable blankets market. In response to the success of THE COMFY,
9 online retailer Amazon created the new category of products on its platform(s)
10 labeled Wearable Blanket.
11 24. Cozy Comfort and its resellers have expended millions of dollars since
12 2017 advertising and promoting THE COMFY sold using Cozy Comfort’s
13 Trademarks and Trade Dress in the United States. Such advertising and promotion
14 has been featured in print and electronic media, over the Internet, and in a variety of
15 other media. THE COMFY has also been advertised, promoted and sold by and
16 through nationally recognized retail establishments such as Costco, Bed Bath &
17 Beyond, QVC, Sam’s Club, Kohl’s, Target and Kroger.
18 25. In addition to Shark Tank, THE COMFY featuring Cozy Comfort’s

19 Trade Dress had also been seen in streaming videos and numerous other television
20 programs viewed by many millions of Americans, such as Good Morning America.
21 THE COMFY has received extensive unsolicited media coverage and public
22 exposure from celebrities such as Lizzo, Jamie Lynn Spears, Selena Gomez, Cindy
23 Crawford, Kim Kardashian and Kylie Jenner. In January of 2018, Plaintiff
24 produced and posted a video on THE COMFY that has received over 100 Million
25 views.
26 26. Cozy Comfort has achieved hundreds of millions of dollars of sales of

27 THE COMFY using Cozy Comfort’s Trademarks and Trade Dress. THE COMFY
28 is currently the best-selling wearable blanket in the United States.
{04598682 / 11} 7
1 27. THE COMFY brand and designs are recognized in the U.S. and
2 worldwide as the industry standard in hooded wearable blankets. The style of THE
3 COMFY has acquired distinctiveness within the market based upon worldwide sales
4 and exposure. Cozy Comfort’s Trade Dress has acquired distinctiveness by virtue of
5 extensive sales and adverting of THE COMFY featuring Cozy Comfort’s Trade
6 Dress, extensive consumer recognition of the Cozy Comfort’s Trade Dress, and
7 association of Cozy Comfort’s Trade Dress with THE COMFY.
8 28. Plaintiff’s ‘788 Patent protects “The ornamental design for an enlarged
9 over-garment with an elevated marsupial pocket, as shown and described.” The
10 issued patent features ten (10) Figures. Figure 1 of the ‘788 Patent illustrates a front
11 view of the invention as shown below:
12
13
14
15
16
17
18
19
20
21
22
23
24 29. Figure 4 of the ‘788 Patent illustrates the invention without a person
25 wearing it:
26
27
28
{04598682 / 11} 8
10
11
12 (Rotated clockwise by 90 degrees)

13
30. Plaintiff is also the owner of U.S. Patent No. D905,380 (the “’380
14
Patent”) entitled “Whole body blanket” issued December 22, 2020. A true and
15
correct copy of this patent is attached hereto as Exhibit 2 and incorporated by
16
reference.
17
31. Figure 1 of the ‘380 Patent illustrates the invention with dotted lines
18
indicating optional features.
19
20
21
22
23
24
25
26
27
28
{04598682 / 11} 9
10
(Rotated clockwise by 90 degrees)
11
12 32. Upon information and belief, Defendant Davie Clothing was organized
13 as a limited liability company in Australia on November 1, 2018.
14 33. Upon information and belief, Defendant Davie Clothing is the owner,
15 distributor and/or manufacturer of the product known as “THE OODIE”, a product
16 that Defendant Davie Clothing describes as a wearable blanket with sleeves. The
17 product is sold in a variety of colors. A sample image of THE OODIE, taken from
18 one if its websites, appears below:
19
20
21
22
23
24
25
26
27
28
{04598682 / 11} 10
10
11 34. Upon information and belief, Defendant Davie Clothing, nor any of its
12 direct affiliates or parent companies, sold wearable blankets or any similar wearable
13 items, prior to December 2017.
14 35. Upon information and belief Defendant Davie Clothing began

15 displaying and offering THE OODIE for sale from its company’s Australia-based
16 website, https://theoodie.com, in 2018. In describing THE OODIE, Defendant
17 Davie Clothing’s website stated that “We use ultra soft flannel fleece paired with
18 warm sherpa fleece so you don't have to worry about the cold. Some think it's a
19 blanket. Some think it's a hoodie. Either way we know your [sic] going to be cosiest
20 in The Oodie.”
21 36. Upon information and belief, Defendant Davie Clothing initially

22 shipped THE OODIE only to customers within Australia and New Zealand.
23 However, through various means, including through agreement with and use of the
24 services of Defendant Bedabox, Defendants began importing and/or shipping THE
25 OODIE to customers in other regions throughout the world, including the United
26 States.
27 37. Defendant Davie Clothing has established websites throughout the

28 world for customers in various countries to purchase THE OODIE. This includes a
{04598682 / 11} 11
1 website dedicated to advertising and selling products to U.S.-based customers,
2 https://us.theoodie.com/. Defendant Davie Clothing also owns domains to target
3 customers located in other countries including theoodie.co.uk, theoodie.co.no,
4 ca.theoodie.com, theoodie.de, jp.theoodie.com and theoodie.fr. Based upon
5 information and belief, these products are distributed to U.S. customers by
6 Defendant Bedabox.
7 38. Defendant Davie Clothing also sells THE OODIE to U.S.-based

8 customers through a storefront maintained on the U.S.-based Amazon.com platform.
9 Products displayed and listed for sale are intended to be shown to U.S.-based
10 customers for direct shipment of THE OODIE to addresses located within the
11 United States.
12 39. On November 3, 2020, Defendant Davie Clothing filed an application

13 with USPTO for trademark protection within the United States for a design mark
14 incorporating the term “The Oodie” in relation to the sale of “Wearable blankets in
15 the nature of blankets with sleeves.” Within its application, Defendant attested that
16 it has sold such products in commerce within the United States since November 2,
17 2018. This application presently remains pending with the USPTO. A true and
18 correct copy of the summary of the status of this application from the Trademark
19 Electronic Search System (TESS) of the USPTO is attached hereto as Exhibit 3 and
20 incorporated by reference.
21 40. THE OODIE is sold in a variety of colors and decorative designs.

22 However, the construction and design of THE OODIE is substantially the same as
23 those described in the ‘788 Patent, the ‘380 Patent, and within the trade dress of
24 THE COMFY.
25 41. Defendant Davie Clothing advertises THE OODIE as being designed

26 after an oversized “6XL Hoodie” also including a front pocket, elastic wrist cuffs, a
27 waist measurement of 193 centimeters [80 inches], front length of 76 centimeters
28 [30 inches], and back length of 94 centimeters [37 inches].
{04598682 / 11} 12
1 42. THE OODIE is substantially the same product as THE COMFY. A

2 side by side comparison between a display found on Defendant’s U.S. website,
3 us.theoodie.com, and Figure 1 from the ‘788 Patent exhibit the overwhelming
4 sameness:
10
11
12
13
14
15 43. Additionally, promotional materials featured on social media accounts

16 controlled by Defendant Davie Clothing and/or its related entities further display the
17 sameness of THE OODIE to the intellectual property of Plaintiff. In the comparison
18 below, the image on the left appears on Defendant’s Instagram page,
19 https://www.instagram.com/the_oodie/, and the image on the right is Figure 10 from
20 the ‘788 Patent.
21
22
23
24
25
26
27
28
{04598682 / 11} 13
10
11
12 44. Images from Defendant Davie Clothing’s U.S. website further display
13 the sameness of THE OODIE to the intellectual property of Plaintiff. In the
14 comparison below, the image on the left appears on Defendant’s webpage at
15 us.theoodie.com/products/grey-oodie, and the image on the right is Figure 10 from
16 the ‘788 Patent.
17
18
19
20
21
22
23
24
25
26 45. Plaintiff purchased sample products from Defendant Davie Clothing’s

27 storefront named “The Oodie” on the U.S. version of Amazon.com, and from
28 Defendant Davie Clothing’s website, us.theoodie.com, to examine the similarities
{04598682 / 11} 14
1
between THE OODIE and the intellectual property owned by Plaintiff. Comparison
2
of photographs of a sample product purchased, and Figures 5 and 6 from the ‘380
3
Patent shows the following:
4
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
{04598682 / 11} 15
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
46. The sample products purchased through Amazon.com were missing
25
Registered Identification Number markings issued by the Federal Trade
26
Commission. The Textile Fiber Products Identification Act, 15 U.S.C. §70, et. seq.
27
requires that textile products be labeled with the name under which a seller of textile
28
products does business. The regulations require that either the business name,
{04598682 / 11} 16
1
registration identification number or trademark registered with the U.S. Patent and
2
Trademark Office appear on the label. Defendants’ products do not display any of
3
the required identification marks on their labels. Upon further investigation, Plaintiff
4
discovered that Defendant Davie Clothing imports THE OODIE into the U.S. under
5
two different Harmonized Tariff Schedule codes, presumably to avoid paying the
6
appropriate duties.
7
47. The packaging from the sample product purchased by Plaintiff from
8
us.theoodie.com website bore markings that the product was shipped by
9
“ShipMonk”, a product service owned by Defendant Bedabox.
10
48. Defendant Bedabox maintains a website for its ShipMonk services at
11
https://www.shipmonk.com/. Defendant Bedabox advertises ShipMonk as a
12
scalable order fulfillment service for eCommerce businesses.
13
49. On the ShipMonk website, Defendant Bedabox describes the general
14
process by which ShipMonk services its customers at
15
https://www.shipmonk.com/how-it-works. Based upon information and belief,
16
ShipMonk enters into agreements with foreign-based companies that are seeking
17
shipping solutions for customers located in the United States. These foreign
18
companies list products for sale on the Internet. The foreign company then ships the
19
products from overseas to ShipMonk, located within the United States, based upon
20
negotiated rates. After receiving such products from overseas, ShipMonk
21
individually sorts and ships the products to U.S. addresses via discounted rates that
22
ShipMonk has negotiated with local carriers such as FedEx, UPS, DHL and the
23
United States Postal Service.
24
50. Upon information and belief, ShipMonk has direct access to
25
information from its foreign-based clients’ online selling accounts and gathers
26
information regarding each sale made. Upon information and belief, Defendant
27
Bedabox and Defendant Davie Clothing have an agreement through which
28
{04598682 / 11} 17
1
Defendant Bedabox provides fulfillment services to U.S.-based customers whom
2
make purchases of THE OODIE through Amazon.com, https://us.theoodie.com/,
3
and/or other online platforms.
4
51. Through vast sales, promotion, and publicity surrounding THE
5
COMFY, Plaintiff has acquired distinctiveness in the look and feel of THE
6
COMFY. Plaintiff is an innovator in the wearable blanket industry, as recognized
7
by the USPTO through the issuance of multiple patents as well as its performance
8
within the market. Plaintiff has expended substantial sums in marketing and
9
advertising its products and enjoy a substantial share in the market for wearable
10
blankets in the United States.
11
52. Due to the extensive marketing, promotion, and sales of THE COMFY,
12
customers recognize Cozy Comfort’s Trade Dress of an oversized wearable blanket,
13
that has large arm coverings, a large hood, a sherpa lining, elastic wrist cuffs and a
14
large front pocket, and associate such features to signify the product is a genuine
15
Cozy Comfort’s THE COMFY.
16
53. The combination of elements comprising Cozy Comfort’s Trade Dress
17
is non-functional as each feature could be accomplished with different design
18
choices, without affecting cost or quality, to convey a different product that does not
19
embody the same, or confusingly similar, features that customers have come to
20
recognize as THE COMFY.
21
54. The Cozy Comfort Trademarks and Trade Dress are famous for
22
wearable blankets in the United States.
23
55. Plaintiff markets these features such that customers recognize such
24
features as THE COMFY Trade Dress. For example, on the packaging shown
25
below, Plaintiff promotes these features and highlights them with text such as:
26
“Oversized Everything, large enough to pull legs/arms in,” “Giant Pocket,”
27
28
{04598682 / 11} 18
1
“Portable Warmth,” “Huge Hood,” and “Luxurious Material so soft, you’ll never
2
want to take it off .”
3
10
11
12
13
14
15
16
56. THE COMFY is sold in over 100 countries and through recognized
17
retail establishments such as Costco, Bed Bath & Beyond, QVC, Sam’s Club,
18
Kohl’s, Target and Kroger. As a result of this exposure, consumers have come to
19
recognize Cozy Comfort’s Trade Dress features through the promotion, sales, and
20
publicity of THE COMFY.
21
57. Consumers have grown to recognize THE COMFY and Plaintiff’s
22
related products as the industry standard for wearable blankets and identify the
23
unique shape of Plaintiff’s hooded wearable blankets as coming from a distinct
24
source.
25
58. Plaintiff’s Trade Dress is readily recognizable to consumers. Plaintiff
26
has received, and continues to receive, complaints from confused consumers who
27
28
{04598682 / 11} 19
1
purchase knock off goods that copy Plaintiff’s Trade Dress with the expectation that
2
they are buying a genuine THE COMFY.
3
59. Defendant Davie Clothing did not enter the market until it had seen the
4
success of THE COMFY. As a result, Defendants and others were quick to enter the
5
market to flood the market space. Although Plaintiff developed and invested in
6
multiple intellectual property assets protecting THE COMFY, those assets took time
7
to mature from applications into published registrations and issued protectable
8
rights. Plaintiff is now in the position of having to enforce its rights against a
9
number of infringers. THE COMFY brand, and recognized trade dress, is so
10
successful it is now being counterfeited by pirates trying to capitalize on the
11
goodwill and reputation that Cozy Comfort created.
12
60. Defendant Davie Clothing is aware of the similarities between its
13
product, THE OODIE, and THE COMFY. Throughout its company websites,
14
including within multiple product listings featured on https://us.theoodie.com/,
15
Defendant displays the following graphic:
16
17
18
19
20
21
22
23
24
25
(https://theoodie.com/products/pink-blanket-hoodie)
26
61. In the graphic shown immediately above, the terms “Competition” and
27
“Competitors” are intended to refer directly to THE COMFY. THE COMFY
28
{04598682 / 11} 20
1 measures 85 centimeters [33.5 Inches] from the bottom of the front of the product to
2 the shoulder seam. THE COMFY predates the introduction of THE OODIE to the
3 market and the formation of Defendant Davie Clothing as an entity. THE COMFY
4 is the worldwide industry standard for hooded wearable blankets with millions of
5 units sold per year, including sales to Australia. Defendant Davie Clothing has
6 knowingly and willfully sold products which directly replicate the intellectual
7 property of Plaintiff. Under the direction of Defendant Davie Clothing, such
8 products have been intentionally marketed, offered for sale, imported and sold to
9 U.S. based customers, in violation of Plaintiff’s rights. Defendant Bedabox has
10 imported and distributed such products within the U.S.
11 62. In addition, the types of materials used to construct THE OODIE and
12 THE COMFY are substantially the same. THE COMFY is constituted of a fleece
13 microfiber layer and a sherpa layer. THE OODIE is advertised to be constituted of a
14 flannel fleece layer and sherpa layer. Both feature an oversized front pouch, hood
15 and elastic cuffs.
16 63. A comparison below of advertising photographs from Amazon.com of

17 THE COMFY shown on the top, and THE OODIE shown on the bottom, highlights
18 the substantial similarity between the products.
19
20
21
22
23
24
25
26
27
28
{04598682 / 11} 21
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
{04598682 / 11} 22
10
11
12
13
14
15 64. Defendant Davie Clothing has knowingly and intentionally replicated

16 the look and feel of THE COMFY to sell products from Australia. However,
17 subsequent to the expansion of the market within the United States and worldwide
18 created directly by Plaintiff, THE OODIE is now sold, imported and distributed
19 within the United States in association with Defendant Bedabox in violation of
20 Plaintiff’s U.S. intellectual property rights.
21 65. On November 2, 2020, Plaintiff provided notice to Defendant Davie

22 Clothing of its infringing activities via a letter submitted to Defendant Davie
23 Clothing and its attorneys (“November 2nd Letter”). The letter particularly
24 highlighted Defendants’ infringement of the ‘788 Patent and Plaintiff’s Trade Dress.
25 66. On November 25, 2020, Defendant Davie Clothing acknowledged

26 receipt of and responded to Plaintiff’s November 2nd Letter via a letter sent from its
27 U.S. based attorneys (“November 25th Letter”). Defendant Davie Clothing denied
28
{04598682 / 11} 23
1 any wrongdoing and stated that it would continue to offer THE OODIE for sale to
2 U.S. based customers.
3 67. On December 22, 2020, the ’380 Patent issued.

4 68. On December 24, 2020, Plaintiff submitted an additional letter to
5 attorneys for Defendant Davie Clothing (“December 24 th Letter”). This letter
6 responded to several issues referenced in Defendant’s November 25 th Letter and
7 included reference to infringement of Plaintiff’s newly-issued ‘380 Patent.
8 69. On January 17, 2021, Defendant Davie Clothing responded to

9 Plaintiff’s December 24th Letter stating that Defendant’s activities did not infringe
10 upon any of Plaintiff’s intellectual property rights and that Defendant intended to
11 continue to sell its products within the United States. Therefore, Defendants
12 continue to offer for sale, sell and/or import goods infringing upon the intellectual
13 property rights of Plaintiff, despite explicit demands of Plaintiff to stop.
14 70. Upon information and belief, Defendant Davie Clothing has known of
15 the existence of THE COMFY for years, likely since Defendant’s inception as a
16 business. At the absolute latest, by November 2, 2020, Defendant was aware of the
17 existence of Plaintiff’s pre-existing U.S. patents and other intellectual property
18 rights. Notwithstanding, Defendants have been willful in their disregard of
19 Plaintiff’s intellectual property rights without any reasonable basis for believing that
20 they had the right to sell or import THE OODIE within the United States.
21
22 FIRST CLAIM FOR RELIEF

23 (Infringement of The ‘788 Patent – 35 U.S.C. §271)
24 71. Plaintiff hereby incorporates and realleges paragraphs 1 through 70 as
25 if fully set forth herein.
26 72. Defendants, without authorization from Plaintiff, have offered for sale,
27 sold, and/or imported into the U.S., including within this District, a hooded wearable
28 blanket marketed as THE OODIE, having a design that infringes the ‘788 Patent.
{04598682 / 11} 24
1 73. By the foregoing acts, Defendants have directly infringed, infringed

2 under the doctrine of equivalents, contributorily infringed, and/or induced
3 infringement of the ‘788 Patent in violation of 35 U.S.C. § 271.
4 74. Upon information and belief, Defendants’ infringement has, and

5 continues to be, knowing, intentional and willful.
6 75. Defendants’ acts of infringement of the ‘788 Patent has caused, and
7 will continue to cause, Plaintiff damages for which Plaintiff is entitled to
8 compensation pursuant to 35 U.S.C. § 284 and/or 35 U.S.C. § 289.
9 76. Upon information and belief, Defendants have gained profits by virtue
10 of their infringement of the ‘788 Patent.
12 will continue to cause, Plaintiff immediate and irreparable harm unless such
13 infringing activities are enjoined by this Court pursuant to 35 U.S.C. § 283 as
14 Plaintiff has no adequate remedy at law.
15 78. The circumstances surrounding Defendants’ infringement are

16 exceptional and, therefore, Plaintiff is entitled to an award of attorney fees pursuant
17 to 35 U.S.C. § 285.
18 SECOND CLAIM FOR RELIEF

19 (Infringement of The ‘380 Patent – 35 U.S.C. §271)
22 80. Defendants, without authorization from Plaintiff, have offered for sale,
23 sold, and/or imported into the U.S., including within this District, a hooded wearable
24 blanket marketed as THE OODIE, having a design that infringes the ‘380 Patent.
25 81. By the foregoing acts, Defendants have directly infringed, infringed

26 under the doctrine of equivalents, contributorily infringed, and/or induced
27 infringement of the ‘380 Patent in violation of 35 U.S.C. § 271.
28
{04598682 / 11} 25
1 82. Upon information and belief, Defendants’ infringement has, and

2 continues to be, knowing, intentional and willful.
4 will continue to cause, Plaintiff damages for which Plaintiff is entitled to
5 compensation pursuant to 35 U.S.C. § 284 and/or 35 U.S.C. § 289.
6 84. Upon information and belief, Defendants have gained profits by virtue
7 of their infringement of the ‘380 Patent.
9 will continue to cause, Plaintiff immediate and irreparable harm unless such
10 infringing activities are enjoined by this Court pursuant to 35 U.S.C. § 283 as
11 Plaintiff has no adequate remedy at law.
12 86. The circumstances surrounding Defendants’ infringement are

13 exceptional and, therefore, Plaintiff is entitled to an award of attorney fees pursuant
14 to 35 U.S.C. § 285.
15 THIRD CLAIM FOR RELIEF

16 (Federal Trade Dress Infringement and Unfair Competition – 15 U.S.C.
17 §1125(a))
20 88. Defendants make, import, distribute, use, offer to sell, and sell in the
21 U.S. products that directly infringe Plaintiff’s Trade Dress in violation of § 43(a) of
22 the Lanham Act, 15 U.S.C. § 1125(a). Plaintiff has actively marketed, promoted,
23 and sold continuously THE COMFY Trade Dress such that it has acquired
24 secondary meaning within the relevant market and among the U.S. public.
25 Defendants has used THE COMFY Trade Dress without the authorization of
26 Plaintiff and continues to trade off the goodwill created and maintained by Plaintiff
27 in THE COMFY Trade Dress.
28
{04598682 / 11} 26
1 89. Defendants’ unauthorized use of Plaintiff’s Trade Dress is likely to

2 deceive consumers as to the origin, source, sponsorship, or affiliation of Defendants’
3 goods and is likely to cause consumers to believe, contrary to fact, that Defendants’
4 goods are sold, authorized, endorsed, or sponsored by Plaintiff, or that Defendants is
5 in some way affiliated with or sponsored by Plaintiff.
6 90. Defendants’ unauthorized use in commerce of Plaintiff’s Trade Dress

7 as alleged herein constitutes use of a false designation of origin and misleading
8 description and representation of fact.
9 91. The foregoing use in commerce by Defendants of Plaintiff’s Trade

10 Dress has caused and/or is likely to cause confusion, or mistake, or to deceive
11 consumers as to the affiliation, connection, or association of Defendants with
12 Plaintiff, or as to the origin, sponsorship, or approval of Defendant’s goods, or
13 commercial activities by Plaintiff.
14 92. Defendants’ acts are willful and are intended to cause confusion,
15 mistake, or deception as to the affiliation, connection, or association of Defendant
16 with Plaintiff.
17 93. Defendants’ infringement of Plaintiff’s Trade Dress as aforesaid has

18 caused and is likely to continue to cause substantial injury to the public and to
19 Plaintiff, and Plaintiff is entitled to injunctive relief and its attorneys’ fees and costs
20 under §§ 32, 34, 35 and 36 of the United States Trademark Act, 15 U.S.C. §§ 1114,
21 1116, 1117 and 1118.
22 94. Defendants’ conduct as alleged herein constitutes unfair competition in

23 violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).
24 95. Defendants’ conduct as alleged herein is causing immediate and

25 irreparable harm and injury to Plaintiff, and to its goodwill and reputation, and will
26 continue to both damage Plaintiff and confuse the public unless enjoined by this
27 court as Plaintiff has no adequate remedy at law.
28
{04598682 / 11} 27
1 96. Defendants have unlawfully and wrongfully derived income and profits
2 and have been unjustly enriched by the foregoing acts. Defendants’ acts have
3 caused, and unless enjoined will continue to cause, irreparable harm to Plaintiff for
4 which there is no adequate remedy at law.
5 97. Plaintiff is entitled to, among other relief, injunctive relief and an award
6 of actual damages, Defendants’ profits, enhanced damages and profits, reasonable
7 attorneys' fees, and costs of the action under Sections 34 and 35 of the Lanham Act,
8 15 U.S.C. §§ 1116, 1117, together with prejudgment and post-judgment interest.
9 FOURTH CLAIM FOR RELIEF

10 (Common Law Trade Dress Infringement and Unfair Competition)
13 99. Defendants make, import, distribute, use, offer to sell, and sell in the
14 U.S. products that directly infringe Plaintiff’s Trade Dress in violation of A.R.S. §§
15 44-1451 & 1452, et. seq. Plaintiff has actively marketed, promoted, and sold
16 continuously THE COMFY Trade Dress such that it has acquired secondary
17 meaning within the relevant market and among the U.S. public. Defendants have
18 used THE COMFY Trade Dress without the authorization of Plaintiff and continue
19 to trade off the goodwill created and maintained by Plaintiff in THE COMFY Trade
20 Dress.
21 100. By virtue of Defendants’ foregoing acts Defendants have intentionally

22 caused a likelihood of confusion among the public and has unfairly competed with
23 Plaintiff in violation of the common law of the State of Arizona and A.R.S §44-1451
24 and §44-1452.
25 101. This claim for common law unfair competition arises under the
26 common law of the State of Arizona.
27 102. The foregoing use in commerce by Defendants of Plaintiff’s Trade

28 Dress has caused and/or is likely to cause confusion, or mistake, or to deceive
{04598682 / 11} 28
1 consumers as to the affiliation, connection, or association of Defendants with
2 Plaintiff, or as to the origin, sponsorship, or approval of Defendants’ goods, or
3 commercial activities by Plaintiff.
4 103. Defendants’ acts are willful.

5 104. By reason of the foregoing, Plaintiff has sustained, and unless
6 Defendants are enjoined, will continue to sustain, injury and damage.
7 105. Defendants have unlawfully and wrongfully derived income and profits
8 and has been unjustly enriched by the foregoing acts. Defendants’ acts have caused,
9 and unless enjoined will continue to cause, irreparable harm to Plaintiff for which
10 there is no adequate remedy at law.
11 106. Plaintiff is entitled to, among other relief, injunctive relief and an award
12 of actual damages, Defendants’ profits, enhanced damages and profits, reasonable
13 attorneys' fees, and costs of the action, together with prejudgment and post-
14 judgment interest.
15 107. Because Defendants engaged in knowing, willful, and conscious

16 disregard for the rights of Plaintiff, Defendants are guilty of oppression, fraud and
17 malice, entitling Plaintiff to an award of punitive damages.
18 FIFTH CLAIM FOR RELIEF

19 (Unjust Enrichment)
22 109. As a result of the conduct alleged herein, Defendants have been

23 unjustly enriched to Plaintiff’s detriment. Plaintiff therefore seeks an accounting
24 and disgorgement of all ill-gotten gains and profits resulting from Defendants’
25 inequitable activities.
26
27 DEMAND FOR JURY TRIAL

28
{04598682 / 11} 29
1 110. Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiff respectfully

2 demands a jury trial of all issues triable to a jury in this action.
4 PRAYER FOR RELIEF

5 WHEREFORE, Plaintiff prays for judgment against Defendants as follows:
6 A. A judgment and order adjudicating and declaring that Defendants have
7 infringed the ‘788 Patent;
8 B. A judgment and order adjudicating and declaring that Defendants have
9 infringed the ‘380 Patent;
10 C. A judgment and order adjudicating and declaring that Defendants have
11 engaged in unfair competition;
12 D. A judgment and order permanently enjoining Defendants, its
13 employees, agents, officers, directors, attorneys, successors, affiliates,
14 subsidiaries, and assigns, and all of those in active concert and
15 participation with any of the foregoing persons or entities from further
16 infringement of the ‘788 Patent, the ‘380 Patent and Plaintiff’s Trade
17 Dress;
18 E. A judgment and order that Defendants must account and pay actual
19 damages (but no less than a reasonable royalty), to Plaintiff for
20 Defendants’ infringement of the ‘788 Patent, the ‘380 Patent and/or
21 Plaintiff’s Trade Dress;
22 F. A judgment and order awarding Plaintiff the total profits realized by
23 Defendants from their infringement of the ‘788 Patent and/or the ‘380
24 Patent pursuant to 35 U.S.C. § 289;
25 G. A judgment and order declaring Defendants have willfully infringed the
26 ‘788 Patent, the ‘380 Patent and/or Plaintiff’s Trade Dress;
27 H. A judgment and order awarding Plaintiff enhanced damages up to three
28 times any amount ordered under 35 U.S.C. § 284 and the amount found
{04598682 / 11} 30
1 as actual damages for Defendants’ trade dress infringement under 15

2 U.S.C. § 1117(a);
3 I. A judgment ordering an accounting for any infringing sales not
4 presented at trial and an award by the court of additional damages for
5 any such infringing sales;
6 J. A determination that this case is exceptional under 35 U.S.C. § 285;
7 K. A determination that this case is exceptional under 15 U.S.C. § 1117;
8 L. A judgment and order awarding Plaintiff its reasonable attorneys’ fees;
9 M. A judgment and order awarding Plaintiff its costs, expenses, and
10 interest, including pre-judgment and post-judgment, as provided for by
11 35 U.S.C. § 284 and 15 U.S.C. § 1117;
12 N. A judgment and order awarding pre-judgment and post-judgment
13 interest on each and every monetary award; and
14 O. Granting Plaintiff any such other and further relief as this Court deems
15 just and proper, or that Plaintiff may be entitled to as a matter of law or
16 equity.
17
18
19 DATED: February 19, 2021 MESSNER REEVES LLP

20
21
22 /s/ Gregory P. Sitrick

Gregory P. Sitrick
23
Attorneys for Plaintiff Cozy Comfort
24 Company LLC
25
26
27
28
{04598682 / 11} 31
2/19/2021 Case 2:21-cv-00310-MHB Document 1-1 Filed 02/19/21 Page 1 of 2
https://www.azd.uscourts.gov/cgi-bin/generate_civil_js44.pl
UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA
Civil Cover Sheet

This automated JS-44 conforms generally to the manual JS-44 approved by the Judicial Conference of the United States in September
1974. The data is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. The information contained
herein neither replaces nor supplements the filing and service of pleadings or other papers as required by law. This form is authorized for
use only in the District of Arizona.
The completed cover sheet must be printed directly to PDF and filed as an attachment to the
Complaint or Notice of Removal.
Davie Clothing Pty Ltd ; Bedabox

Plaintiff(s): Cozy Comfort Company LLC Defendant(s):
LLC
County of Residence: Maricopa County of Residence: Outside the State of Arizona
County Where Claim For Relief Arose: Maricopa
Plaintiff's Atty(s): Defendant's Atty(s):

Sitrick P Gregory ( Cozy Comfort Company LLC )
Messner Reeves LLP
2415 E. Camelback Rd., Suite 700
Phoenix, Arizona 85016
II. Basis of Jurisdiction: 3. Federal Question (U.S. not a party)
III. Citizenship of Principal

Parties (Diversity Cases Only)
Plaintiff:- 4 AZ corp or Principal place of Bus. in AZ
Defendant:- 5 Non AZ corp and Principal place of Business outside AZ
IV. Origin : 1. Original Proceeding
V. Nature of Suit: 830 Patent
VI.Cause of Action: 35 U.S.C. Section 271 - Patent Infringement
VII. Requested in Complaint

Class Action: No
Dollar Demand:
Jury Demand: Yes
VIII. This case is not related to another case.
Signature: /s/ Gregory P. Sitrick
https://www.azd.uscourts.gov/cgi-bin/generate_civil_js44.pl 1/2
2/19/2021 Case 2:21-cv-00310-MHB Document 1-1 Filed 02/19/21 Page 2 of 2
https://www.azd.uscourts.gov/cgi-bin/generate_civil_js44.pl
Date: 2/19/2021
If any of this information is incorrect, please go back to the Civil Cover Sheet Input form using the Back button in your browser
and change it. Once correct, save this form as a PDF and include it as an attachment to your case opening documents.
Revised: 01/2014
https://www.azd.uscourts.gov/cgi-bin/generate_civil_js44.pl 2/2
Case 2:21-cv-00310-MHB Document 1-2 Filed 02/19/21 Page 1 of 11
EXHIBIT 1
EXHIBIT 2
EXHIBIT 3
2/12/2021 Case 2:21-cv-00310-MHB Trademark
Document 1-4Search
Electronic Filed 02/19/21
System (TESS) Page 2 of 2
United States Patent and Trademark Office
Home|Site Index|Search|FAQ|Glossary|Contacts|eBusiness|eBiz alerts|News
Trademarks > Trademark Electronic Search System (TESS)
TESS was last updated on Fri Feb 12 04:07:22 EST 2021
Logout Please logout when you are done to release system resources allocated for you.
Record 1 out of 1
( Use the "Back" button of the Internet Browser to return to
TESS)
Word Mark THE OODIE

Goods and IC 025. US 022 039. G & S: Wearable blankets in the nature of blankets with sleeves. FIRST USE: 20171220.
Services FIRST USE IN COMMERCE: 20181102
Mark Drawing
(5) WORDS, LETTERS, AND/OR NUMBERS IN STYLIZED FORM
Code
Serial
90236378
Number
Filing Date October 5, 2020
Current Basis 1A
Original
1A
Filing Basis
Owner (APPLICANT) DAVIE CLOTHING PTY LTD LIMITED LIABILITY COMPANY AUSTRALIA 80 Grove Ave Marleston
AUSTRALIA 5033
Attorney of
Lisa A. Dunner
Record
Description The color(s) black and blue is/are claimed as a feature of the mark. The mark consists of of the literal element
of Mark "the" in black above the literal element "oodie" in blue.
Type of Mark TRADEMARK
Register PRINCIPAL
Live/Dead
LIVE
Indicator
|.HOME | SITE INDEX| SEARCH | eBUSINESS | HELP | PRIVACY POLICY
tmsearch.uspto.gov/bin/showfield?f=doc&state=4808:5w982d.2.1 1/1

Cozy Comfort Company v. Davie Clothing - Complaint

Hochgeladen von

Dokumentinformationen

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Cozy Comfort Company v. Davie Clothing - Complaint

Hochgeladen von

Copyright:

Verfügbare Formate

Case 2:21-cv-00310-MHB Document 1 Filed 02/19/21 Page 1 of 31

8 UNITED STATES DISTRICT COURT

11 COZY COMFORT COMPANY LLC Case No. _______________________

6 (“Bedabox”) (collectively the “Defendants”) alleges as follows:

1 5. Upon information and belief, Defendant Bedabox is a limited liability

3 Fort Lauderdale, Florida.

4 6. Plaintiff is the owner of intellectual property in relation to its flagship

6 related and associated designs, products and services.

7 JURISDICTION AND VENUE

14 common law and afforded by the laws of the State of Arizona.

19 doctrines of ancillary and pendent jurisdiction.

20 9. This court has personal jurisdiction over Defendants because

25 10. Venue is proper in this District as Defendants have advertised to and

27 engaged in systematic and continuous business contacts within this State.

2 relation to the marketing, sale and distribution of the product(s) in dispute.

5 Amazon.com, distribution of products throughout the U.S., and have purposefully

6 availed themselves of Arizona’s laws.

11 are citizens of the State of Arizona.

20 the product appears below:

1 15. After several rounds of successful auditions with the producers of

3 feature THE COMFY on the 2017 end-of-the-year, holiday-themed episode of

10 hereto as Exhibit 1 and incorporated by reference.

11 17. On December 3, 2017, the episode of Shark Tank featuring THE

13 success of a business surrounding THE COMFY.

18 19. On the episode, several “shark” panelists displayed significant

21 invest into the business.

1 multiple U.S. Trademark registrations and other common-law intellectual property

3 22. Plaintiff established and maintained a company website located at

6 Amazon and other online and brick-and-mortar retailers.

7 23. Through its activities, Plaintiff established itself as an innovator and

10 labeled Wearable Blanket.

17 Beyond, QVC, Sam’s Club, Kohl’s, Target and Kroger.

18 25. In addition to Shark Tank, THE COMFY featuring Cozy Comfort’s

20 programs viewed by many millions of Americans, such as Good Morning America.

23 Crawford, Kim Kardashian and Kylie Jenner. In January of 2018, Plaintiff

26 26. Cozy Comfort has achieved hundreds of millions of dollars of sales of

28 is currently the best-selling wearable blanket in the United States.

7 association of Cozy Comfort’s Trade Dress with THE COMFY.

11 view of the invention as shown below:

12 (Rotated clockwise by 90 degrees)

13 as a limited liability company in Australia on November 1, 2018.

15 distributor and/or manufacturer of the product known as “THE OODIE”, a product

18 one if its websites, appears below:

13 items, prior to December 2017.

14 35. Upon information and belief Defendant Davie Clothing began

16 website, https://theoodie.com, in 2018. In describing THE OODIE, Defendant

21 36. Upon information and belief, Defendant Davie Clothing initially

24 services of Defendant Bedabox, Defendants began importing and/or shipping THE

27 37. Defendant Davie Clothing has established websites throughout the

1 website dedicated to advertising and selling products to U.S.-based customers,

2 https://us.theoodie.com/. Defendant Davie Clothing also owns domains to target

3 customers located in other countries including theoodie.co.uk, theoodie.co.no,

4 ca.theoodie.com, theoodie.de, jp.theoodie.com and theoodie.fr. Based upon

5 information and belief, these products are distributed to U.S. customers by

7 38. Defendant Davie Clothing also sells THE OODIE to U.S.-based

12 39. On November 3, 2020, Defendant Davie Clothing filed an application

21 40. THE OODIE is sold in a variety of colors and decorative designs.

25 41. Defendant Davie Clothing advertises THE OODIE as being designed

27 waist measurement of 193 centimeters [80 inches], front length of 76 centimeters

28 [30 inches], and back length of 94 centimeters [37 inches].

1 42. THE OODIE is substantially the same product as THE COMFY. A

15 43. Additionally, promotional materials featured on social media accounts

17 sameness of THE OODIE to the intellectual property of Plaintiff. In the comparison

18 below, the image on the left appears on Defendant’s Instagram page,