Case 1:10-cv-00876-LMB -TRJ Document 1 Filed 08/05/10 Page 1 of 9

FILED

Matthew J. Astle (Virginia Bar No. 71645)

Jennifer L. Elgin (Of Counsel) p ■
H7J1 n ■ rm
Wiley Rein LLP
1776 K Street, N.W. CLERK US SI IC1 COURT
Washington, DC 20006 ALEXANDRIA. VIRGINIA
Tel:(202)719-7000
Pax: (202)719-7049
email: MAstlc@wileyrcin.com
jr-lgin@wilcyrcin.com

Attorneys for PlaintiffCovington Fabric & Design, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

COVINGTON FABRIC & DESIGN, LLC,

Plaintiff. ECF Case

- against -

VERIFIED COMPLAINT
THE TJX COMPANIES, INC.,
Defendant

Plaintiff, Covington Fabric & Design, LLC. ("Covinglon" or "Plaintiff), through its

undersigned attorneys, alleges as follows:

NATURE OF THE ACTION

1. This is a civil action for copyright infringement under the United Stales Copyright

Aci, 17 U.S.C, §§ 101. et see?, and related state law claims. Covington brings this action to

recover damages caused by Defendant's continued, systematic, unauthorized copying and

modification of Covington's timely-registered copyrighted works. Defendant's actions have

been and continue to be willful, and substantially damage Covington's business - the sale of
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designs for incorporation into consumer home products. Defendant has caused significant and, if

not enjoined, irreparable harm to Covington and has earned unjust profits for itself.

2. Covington seeks all remedies afforded by the Copyright Act, including injunctivc

relief, statutory damages, or actual damages and Defendant's profits, and an award of costs

including legal fees. Because Defendant's infringement is willful, a jury has discretion to award

statutory damages of up to S150,000 per infringed work.

JURISDICTION AND VENUE

3. This is a civil action seeking monetary relief for copyright infringement under the

laws of the United States (17 U.S.C. § 101 et seq.).

4. This Court has jurisdiction under 17 U.S.C. § 101 et seq., 28 U.S.C. § 1331

(federal question) and 28 U.S.C. § 1338(a) (copyright).

5. Defendant is subject to personal jurisdiction in this district, and venue is proper

here under 28 U.S.C. §§ 1391 (b) and 1400(a). A substantial part of the events or omissions

giving rise to the claim occurred in this district, where Defendant resides or may be found, and

Defendant caused injury here where, on information and belief, infringing products have been

sold.

THE PARTIES

6. Covington is a family-owned, limited liability corporation duly organized and

existing under the laws of the State of Delaware with principal place of business in New York,

New York. In March 2008, Covington purchased the assets of Covington Holdings, LLC

("CHLLC"), including its intellectual property assets, from Webster Business Credit Corporation

following a secured party foreclosure of CHLLC's assets.

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7. On information and belief, Defendant The TJX Companies, Inc. is a corporation

organized under the laws of the State of Delaware with a plaee of business at 770 Cochituale

Road, Framingham, MA 01 701.

8. On information and belief, Defendant owns and operates more than 300

I lomeGoods stores, a chain of off-price home fashions stores, featuring a broad array of

giftware, home basics, furniture and accent furniture, lighting, rugs, bedding, decorative

accessories, children's furniture, seasonal merchandise, and wall decor, as well as items for the

kitchen and dining room, among other fashions for the home.

9. On information and belief, Defendant owns and operates at least four HomeGoods

stores in this District.

GENERAL ALLEGATIONS

10. Covington is a fabric converter. Converters create or select designs and arrange

for manufacture of fabric using these designs through a weaving or printing process. The

converter takes delivery of the finished goods and distributes them to wholesale/jobbers, selected

retailers and manufacturers for re-sale of fabric by the yard, or for incorporation into useful

articles such as furniture, bedding and curtains.

11. The Covington brand originally was established approximately 65 years ago;

Although the assets have changed hands several limes, the business ultimately has grown to be

one of the largest decorative fabrics conversion businesses in the United States.

12. Covington is the exclusive owner, obtained by assignment, of all copyrights under

Title 17 of the United Slates Code in hundreds of original works of authorship in the form of

two-dimensional designs (collectively, the "Copyrighted Works").

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13. Among Covinglon's Copyrighted Works is a popular design called "Wilmington.'

True and correct photographs of genuine Covington fabric incorporating the Wilmington design

arc attached hereto as Exhibit "A."

14. The Wilmington design is covered by a certificate of copyright registration duly

issued by the U.S. Copyright Office:

A true and correct copy of the certificate of registration for the Wilmington design is attached as

Exhibit *'B" hereto.

15. This certificate of registration was issued within five years of the first publication

of the Wilmington design, and thus is prima facie evidence of the facts contained therein and the

validity of the copyright. 17 U.S.C. § 410(c). Among the exclusive rights granted to Covinglon

by the Copyright Act arc the exclusive rights to reproduce the design, distribute the design to the

public and create derivative works from the design. 17 U.S.C. § 106.

16. Pursuant to 17 U.S.C. § 401, Covington places notices of copyright protection on

the edge of genuine fabrics.

17. Covington recently discovered a lamp for sale in a I lomcGoods store which

features a design that is clearly copied from, and substantially similar to, the copyrighted

Wilmington design. A picture of the lamp is attached as Exhibit "C" hereto.

18. On information and belief, Defendant is and has been manufacturing, or

commissioning the manufacture of, infringing lamps that incorporate copies of at least one of

Covington's Copyrighted Works, and is and has been offering these infringing copies lor sale,

without authorization from Covington.

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19. The precise number of infringed works will be determined during discovery.

COUNT I
(Copyright Infringement)

20. Plaintiff incorporates by reference paragraphs 1 through 18 of this Complaint as if

set forth in full herein.

21. On information and belief, Defendant itself manufactures, or procures the

manufacture from third parties of, objects incorporating one or more of Covington's Copyrighted

Works. Such acts constitute unauthorized reproduction, modification, and distribution and result

in unauthorized copies. Defendant participates in, facilitates, materially contributes to, and

encourages these infringements.

22. At all relevant times, Defendant has engaged and continues to engage in the

business of knowingly and systematically participating in, facilitating, materially contributing to,

and encouraging the above-described unauthorized reproductions, modifications, and/or

distributions of one or more of the Copyrighted Works, and thus the infringement of Covington's

copyrights and exclusive rights under copyright in the Copyrighted Works. Defendant has actual

and constructive knowledge of the infringements committed by its manufacturers.

23. At all relevant limes, Defendant has derived substantial financial benefit from the

infringement of Covington's copyrights.

24. At all relevant times, Defendant lias had the right and ability to supervise and/or

control the infringing conduct of its manufacturers.

25. Defendant, through {a) its active participation in the unauthorized reproduction

and/or distribution of unauthorized copies of one or more of Covinglon's Copyrighted Works,

(b) its provision of the means and facilities for unauthorized reproduction and distribution, (c) its

encouragement of manufacturers to engage in these unauthorized acts and its material

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contribution to its manufacturers1 acts, (d) its control over the means and facilities by which such

unauthorized reproductions and distributions are effected, (e) the substantial, direct financial

benefits that Defendant derives from all of the aforesaid acts, and (f) its full knowledge of all of

the aforesaid acts and their illegal consequences, is directly, contributorily and/or vicariously

liable for infringement of one or more of the Copyrighted Works.

26. The foregoing acts of infringement by Defendant have been willful, intentional,

and purposeful, in disregard of and with indifference to Covinglon's rights.

27. As a direct and proximate result of Defendant's infringement of Covington's

copyrights and exclusive rights under copyright, Covington is entitled to damages as well as

Defendant's profits pursuant to 17 U.S.C. § 504(b) for each infringement.

2S. Alternatively, Covinglon is entitled to the maximum statutory damages, pursuant

to 17 U.S.C. § 504(c), in (he amount of $150,000 for all individual infringements involved in the

action with respect to any one work for which any one infringcr is liable individually, or for

which any two or more infringers arc liable jointly and severally, or for such other amount as

may be proper pursuant to 17 U.S.C. § 504(c).

29. Covington further is entitled to its attorneys' fees and full costs pursuant to 17

U.S.C. §505.

30. Defendant's conduct threatens to cause, and is causing, and unless enjoined and

restrained by this Court will continue to cause, Covington great and irreparable injury that cannot

Hilly be compensated for or measured in money.

31. Covington has no adequate remedy at law. Pursuant to 1 7 U.S.C. § 502,

Covington is entitled to preliminary and permanent injunctions prohibiting further infringements

of its copyrights and exclusive rights under copyright.

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WHEREFORE, Covington prays for judgment against Defendant as follows:

1. For Defendant's profits and for actual damages in such amount as may be found,

or alternatively, for maximum statutory damages of not less than $150,000 for all individual

copyright infringements involved in the action with respect to any one work for which any one

infringer is liable individually, or for which any two or more infringers are liabie jointly and

severally, or for such other amount as may be proper pursuant to 17 U.S.C. § 504(c);

2. For a preliminary and a permanent injunction enjoining Defendant and its agents,

servants, employees, officers, attorneys, successors, licensees, partners, and assigns, and all

persons acting in concert or participation with each or any of them, from:

(a) dircclly or indirectly infringing in any manner any of Covington's

copyrights or other exclusive rights (whether now in existence or hereafter created), including

without limitation, copyrights or exclusive rights under copyright in the Copyrighted Works; and

(b) causing, contributing to. enabling, facilitating, or participating in the

infringement of any of Covinglon's copyrights or other exclusive rights (whether now in

existence or hereafter created), including without limitation, copyrights or exclusive rights under

copyright in the Copyrighted Works;

3. For an order that Defendant, its agents, servants, employees, attorneys and all

those persons in active concert or participation with any of them, deliver up for destruction, or

show proof of destruction of, any and all materials in their possession or control all copies found

to have been made or used in violation of Covington's exclusive rights, and of all plates, molds,

matrices, masters, tapes, film negatives, or other articles by means of which such copies may be

reproduced, pursuant to 17 U.S.C. § 503;

4. For an award of prc-judgment and post-judgment interest;

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5. For Covingtoii's costs for this action, including its reasonable attorneys' fees,

costs and disbursements incurred in this action; and

6. For such other and further relief as the Court may deem just and proper.

JURY DEMAND

Plaintiff demands a trial by jury.

Dated: August 5, 2010

WILEY REIN LLP

Matthew J. Astle (Virginia Bar No. 71645)
Jennifer L. Elgin (Of Counsel)
1776 K Street, N.W.
Washington, DC 20006
Tel: (202) 719-7000
Fax:(202)719-7049
email: MAstlc@wileyrein.com
JElgin@wileyrein.com

Attorneys for PlaintiffCovington Fabric &

Design, LLC
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VERIFICATION

The undersigned Officer of Plaintiff Covington Fabric & Design, LLC has read the

foregoing Verified Complaint and hereby certifies that the facts suited therein arc true and

accurate.

Mark S. Kalian
Chairman and CEO

STATE OF NEW YORK

ss:

COUNTY OF NEW YORK

I, / J tiff A #\ Orp\j(, a Notary Public in and for said county, in the State aforesaid, do
hereby certify that Mark S. Kalian, personally known to me lo be the Affiant and personally
known to me to be the same persoruwhoscJiame is subscribed to the foregoing Verification,
appeared before me this3^ day oTjS^fzOlO, in person, and upqjyhjs oath acknowledged that
he signed and delivered the said Verification as his

NoUiryiMiblic
^OFFICER
I" PUBLIC, STATE Cf fCW YCRK
cmtreo h hasshj county
My Commission Expires: ^- /3, _

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