UNITED STATES DISTRICT COURT

for the SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION Jeanette Kern, Plaintiff v. Forever Lazy, LLC; Wal-Mart Stores, Inc.; and Allstar Products Group, Defendants ) ) ) ) ) ) ) ) ) )

Civil Action No. 4:12-CV-00912

COMPLAINT FOR PATENT INFRINGEMENT The Parties 1. Plaintiff Jeanette Kern is a Texas resident who resides in Harris

County, Texas. 2. Defendant Forever Lazy, LLC is a Wisconsin limited liability

corporation with offices at 2010 Melody Lane, Brookfield, Wisconsin 53005. 3. Defendant Wal-Mart Stores, Inc. is a Delaware corporation with its

headquarters at 702 SW 8th Street, Bentonville, Arkansas 72712. 4. Defendant Allstar Products Group, LLC is a New York limited liability

corporation with offices at 2 Skyline Drive, Hawthorne, New York 10532. Nature of the Action 5. This action is an action for patent infringement arising under the U.S.

patent laws, 35 U.S.C. 271 et seq.

Jurisdiction and Venue 6. 7. 1400(b). Facts 8. On May 2, 2005, Ms. Kern filed with the United States Patent & Jurisdiction is proper under 28 U.S.C. 1331 and 1338(a). Venue is proper under 28 U.S.C. 1391(b) and (c), and 28 U.S.C.

Trademark Office (PTO) an application for a design patent directed to her ornamental design for a Flap for a Garment. On September 11, 2007, the PTO granted United States Design Patent No. D550,428 (the 428 patent) based on Ms. Kerns application. A true and correct copy of the 428 patent is attached as EX. 1. Ms. Kern is the named inventor of the 428 patent, and has owned the 428 patent throughout the period of the defendants infringing acts and still owns the 428 patent. 9. Upon information and belief, defendant Forever Lazy created a line of

garment products, sold under the Forever Lazy trademark, which incorporate the garment flap design covered by the claim of the 428 patent (the infringing Forever Lazy garments). 10. As advertised and sold, these Forever Lazy garment products When comparing the infringing

prominently feature a zippered back hatch.

Forever Lazy garment containing the zippered back hatch to the claim of the 428 patent, an ordinary observer would be deceived into believing that the accused

infringing Forever Lazy products zippered back hatch feature is the same as the 428 patented design. The Forever Lazy garments featuring the zippered back

hatch infringe the claim of the 428 patent. 11. Upon information and belief, defendant Forever Lazy obtained federal

registration of the trademark Forever Lazy claiming a date of first use of this mark in connection with, e.g., one-piece adult pajamas with hoods, of at least as early as May 29, 2009. These one-piece adult pajamas with hoods are all believed to feature the infringing zippered back flap design, and are examples of the infringing Forever Lazy garments. 12. Upon information and belief, defendant Forever Lazy has, without

authorization of plaintiff, manufactured, had manufactured, used, offered for sale, and/or sold garments that infringe the claim of the 428 patent. On information and belief, this infringing activity continues at present. 13. Upon information and belief, defendant Forever Lazy also has, without

authorization of plaintiff, imported into the United States garments that infringe the claim of the 428 patent. On information and belief, this infringing activity continues at present. 14. Upon information and belief, defendant Allstar Products Group, is a

retailer and distributor of the infringing Forever Lazy garments, and has, without authorization of plaintiff, manufactured, had manufactured, used, offered for sale, and/or sold garments that infringe the claim of the 428 patent. On information and

belief, Allstar Products Group has sold the infringing Forever Lazy garments through a retail distribution network and direct response sales network that includes in part, for example, defendant Wal-Mart, and virtually all other major retail stores, including: Walgreens; K Mart; Bed, Bath & Beyond; Rite Aid; Sears; and Amazon.com. present. 15. Upon information and belief, one or more of the defendants offers for On information and belief, this infringing activity continues at

sale, sells, and has sold the infringing Forever Lazy garments via the internet, including, through the website www.orderforeverlazy.com. belief, this infringing activity continues at present. 16. On information and belief, on November 9, 2010, the domain name On information and belief, the domain On information and

www.orderforeverlazy.com was created.

name www.orderforeverlazy.com is registered in the name of Ignite Media Solutions, 1001 St. Petersburg Dr., Oldsmar, Florida, 34677. On information and belief, defendant Allstar Products Group regards itself to be the copyright owner of the content of the website, www.orderforeverlazy.com as indicated by the reference therein to 2011 APG all rights reserved. On information and belief, defendant Allstar Products Group refers to itself as APG in connection with the website www.orderforeverlazy.com and the distribution and sales of the infringing Forever Lazy garments. On information and belief, defendant Allstar Products Group owns or otherwise controls the operation of the website www.orderforeverlazy.com.

17.

On information and belief, defendant Allstar Products Group also

maintains sales and distribution offices at P.O. Box 3179, 300 Returns Road, Wallingford, CT 06494 in connection with, e.g., the infringing Forever Lazy garments. 18. On information and belief, defendant Allstar Products Group also

advertises and offers for sale the infringing Forever Lazy garments, featuring the infringing full zippered drop seat design, at www.foreverlazyfans.com. information and belief, this infringing activity continues at present. 19. Upon information and belief, defendant Allstar Products Group has, On

without authorization of plaintiff, imported into the United States garments that infringe the claim of the 428 patent. On information and belief, this infringing activity continues at present. 20. On information and belief, defendant Allstar Products Group also

operates a sales affiliate referral network through www.hercle.com encouraging others to offer and sell the infringing Forever Lazy garments. On information and belief, this infringing activity continues at present. 21. Upon information and belief, defendant Wal-Mart, is a retailer of the

infringing Forever Lazy garments, and has, without authorization of plaintiff, offered for sale, or sold garments that infringe the claim of the 428 patent. On information and belief, defendant Wal-Mart purchases the infringing Forever Lazy garments from defendant Allstar Products Group and sells them at its Wal-Mart

retail locations and via its website, www.walmart.com. On information and belief, this infringing activity continues at present. 22. Upon information and belief, one or more of the defendants has

advertised, offered for sale and sold the infringing Forever Lazy garments through the As Seen On TV website. On information and belief, this infringing activity continues at present. 23. plaintiffs Upon information and belief, defendants have used and featured use of patented garment flap design of the 428 patents claim in

advertisements, infomercials, videos, social media sites and other promotional material associated with the offer for sale and sale of the infringing Forever Lazy garments. On information and belief, this infringing activity continues at present. First Count Patent Infringement 24. herein. 25. Each defendants manufacture, importation, offer for sale, and/or sale Plaintiff hereby incorporates the above allegations as if stated fully

of the Forever Lazy garments, containing the patented design covered by the claim of the 428 patent, constitutes patent infringement under 35 U.S.C. 271. 26. Plaintiff has been and continues to be irreparably harmed by each

defendants infringement. Prayer for Relief WHEREFORE, Plaintiff respectfully requests that the Court enter judgment 6

in favor of Plaintiff: A. Ordering a full accounting of all sums received by defendants or their

affiliates as a result of the wrongful conduct as set forth herein; B. Awarding actual damages to plaintiff for each defendants patent

infringement under 35 U.S.C. 284, in an amount to be determined, but in no event less than a reasonable royalty; C. Permanently enjoining each defendant from importing, making, having

made, offering for sale, and selling any product which infringes plaintiffs patent rights; D. Awarding prejudgment interest on all items of past damage and

postjudgment interest on all damages as allowed by law; E. Awarding plaintiff enhanced damages and/or her reasonable attorneys

fees if the trier of fact finds conduct that justifies the same; and F. Awarding plaintiff her costs of court and all other relief, both in law

and in equity, to which she may be entitled.

Respectfully submitted, Abraham, Watkins, Nichols, Sorrels, Agosto & Friend

By:______________________________________ Sammy Ford IV Texas Bar No.: 24061331 800 Commerce Street Houston, Texas 77002 Telephone: (713) 222-7211 Telecopier: (713) 225-0827 sford@abrahamwatkins.com Gordon G. Waggett Texas Bar No.: 20651700 550 Westcott Street, Ste. 350 Houston, Texas 77007 Telephone: (713) 961-4641 Telecopier: (713) 223-1476 gordon@waggettlaw.com Attorney for Plaintiffs