EK Ekcessories V Snugz USA - Complaint

Case 1:16-cv-00122-EJF Document 2 Filed 09/01/16 Page 1 of 8
H. Dickson Burton (4004)

HDBurton@traskbritt.com
Daniel J. Bezdjian (14597)
DJBezdjian@traskbritt.com
TRASKBRITT, PC
230 South 500 East # 300
Salt Lake City, Utah 84102
Telephone: (801) 532-1922
Facsimile: (801) 531-9168
Attorneys for Plaintiff, EK EKCESSORIES, INC.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
EK EKCESSORIES, INC., a Utah
corporation,
COMPLAINT
Plaintiff,
Case No.: _______
v.
SNUGZ/USA INCORPORATED, a Utah
corporation,
JURY DEMAND
Defendant.
Plaintiff EK Ekcessories, Inc. (EK) hereby complains and alleges against Defendant
SnugZ/USA Incorporated (SnugZ or Defendant) as follows:
PARTIES
1.
Plaintiff EK is a Utah corporation located at 575 W. 3200 S. Nibley, UT 84321.
2.
Defendant SnugZ is a Utah corporation with a principal place of business at 9258
Prosperity Rd. West Jordan, UT 84081.
NATURE OF THE ACTION

3.
This is an action for patent infringement and design patent infringement arising
under the Patent Laws of the United States, 35 U.S.C. 1 et seq., including 35 U.S.C. 271
and/or 35 U.S.C. 289.
4.
On information and belief, Defendant has infringed and continues to infringe,
and/or actively induces others to infringe EKs U.S. Patent 6,709,100 (the 100 Patent) and
U.S. Design Patent D536,364 (the 364 Design Patent) (collectively the Asserted Patents).
JURISDICTION AND VENUE
5.
This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
1331 and 1338.

6.
This Court has personal jurisdiction over Defendant SnugZ because it is
incorporated in the State of Utah and has its principal place of business within this judicial
district. Further, on information and belief, SnugZ does and has done substantial business in this
judicial District, including: (i) committing acts of patent infringement and/or contributing to or
inducing acts of patent infringement by others in this judicial District and elsewhere in Utah; (ii)
regularly conducting business in this State and judicial District; (iii) directing advertising to or
soliciting business from persons residing in this state and judicial District; and (iv) engaging in
other persistent courses of conduct, and/or deriving substantial revenue from infringing products
and/or services provided to persons in this District and State.
7.
Venue is proper in this Court pursuant to 28 U.S.C. 1391 and 1400(b).
FACTUAL BACKGROUND
8.
Plaintiff EK designs, develops, manufactures, and markets various high quality
outdoor and recreational accessories including, but not limited to, eyeglass retainers, keychains,
lanyards, hat retainers, belts, watchbands, and other related products.
9.
EK has sought protection for its innovations, which has resulted in numerous
issued patents, including the Asserted Patents.

10.
The 100 Patent issued on March 23, 2004 and is titled Three-way Eyeglass
Retainer. EK is the owner by assignment of the 100 Patent. A copy of the 100 Patent is
appended hereto as Exhibit A.
11.
The 364 Design Patent issued on February 26, 2007 and is titled Eyeglass
Retainer. EK is the owner by assignment of the 364 Design Patent. A copy of the 364 Design
Patent is appended hereto as Exhibit B.
12.
On information and belief, Defendant develops, markets, and/or manufactures a
number of products, including eyeglass retainers and lanyards that include three-way eyeglass
retainers.
13.
On information and belief, Defendant manufactures and sells a series of eyeglass
retainers and lanyards that include three-way eyeglass retainers, including at least the
Powercord Trade Show Lanyard and the Power Cord Eyewear Retainer (collectively, the
infringing products). True and correct copies of pages from SnugZs catalog are contained in
Exhibit C, attached hereto.
14.
On information and belief, Defendant SnugZ operates and maintains a website at
www.snugzusa.com (hereinafter SnugZs website), where SnugZs products, including at least

the infringing products, are marketed and sold to at least U.S. consumers via SnugZs website.
15.
On information and belief, Defendant SnugZ knows, should know, or is willfully
blind to the fact that its infringing products infringe the Asserted Patents.
COUNT ONE
(Infringement Of The 100 Patent Against Defendant 35 U.S.C. 271 et seq.)
16.
Plaintiff realleges and incorporates by reference the above paragraphs of this
Complaint, inclusive, as though fully set forth herein.

17.
On information and belief, Defendant has had actual notice of the 100 Patent
and/or constructive notice of the 100 Patent pursuant to 35 U.S.C. 287.

18.
On information and belief, Defendant has: (1) infringed and continues to infringe
at least claim 1 of the 100 Patent by developing, making, using, offering to sell, selling, and/or
importing, in this District and elsewhere in the United States, at least the infringing products.
19.
Defendants actions constitute infringement, either literal or under the doctrine of
equivalents, and/or active inducement of at least claim 1 of the 100 Patent in violation of 35
U.S.C. 271.
20.
For example, the infringing products comprise a retaining member for attaching a
retainer cord to a pair of eyeglasses. The retaining member comprises an elongate member made
from an elastic material that defines a hollow channel and includes a first opening, a first port,
and a second port, as recited in claim 1. A true and correct copy of the 100 Patent is appended
hereto as Exhibit A.
4
21.
As another example, Defendant infringes at least claim 11 of the 100 Patent by
making, using, offering to sell, selling, and/or importing at least the infringing products. For
example, the infringing products comprise an eyeglass retainer comprising a retaining cord and a
hollow, elongate member having a first opening, a first port, and a second port, as recited in
claim 11. A true and correct copy of the 100 Patent is appended hereto as Exhibit A.
22.
EK has sustained damages and will continue to sustain damages as a result of
Defendants aforesaid acts of infringement.

23.
EK is entitled to recover damages sustained as a result of Defendants wrongful
acts in an amount to be proven at trial.

24.
Defendants infringement of EKs rights under at least claim 1 and claim 11 of the
100 Patent will continue to damage EKs business, causing irreparable harm, for which there is
no adequate remedy at law, unless it is enjoined by this Court.
25.
Upon information and belief, Defendant has willfully infringed at least claim 1
and claim 11 of the 100 Patent, entitling EK to increased damages under 35 U.S.C. 284 and to
attorney fees and costs incurred in prosecuting this action under 35 U.S.C. 285.
COUNT TWO
(Infringement Of The 364 Design Patent Against Defendant 35 U.S.C. 271 et seq.)
26.
Plaintiff realleges and incorporates by reference the above paragraphs of this
Complaint, inclusive, as though fully set forth herein.

27.
On information and belief, Defendant has had actual notice of the 364 Design
Patent and/or constructive notice of the 364 Design Patent pursuant to 35 U.S.C. 287.
28.
On information and belief, Defendant has: (1) infringed and continues to infringe
the 364 Design Patent by developing, making, using, offering to sell, selling, and/or importing,
in this District and elsewhere in the United States, at least the infringing products.
29.
Defendants actions constitute infringement, either literal or under the doctrine of
equivalents, and/or active inducement of the 364 Design Patent in violation of 35 U.S.C. 271
and/or 35 U.S.C. 289.
30.
The infringing products are substantially the same as the eyeglass retainer
illustrated and claimed in the 364 Patent. For example, the infringing products include a
retainer cord attached to a retaining member as illustrated in, for example, FIG. 1 through
FIG. 22 of the 364 Patent. The retaining member of the infringing products includes openings
and ports as illustrated and claimed in the 364 Patent. A true and correct copy of the 364
Patent is appended hereto as Exhibit B.
31.
EK has sustained damages and will continue to sustain damages as a result of
Defendants aforesaid acts of infringement.

32.
EK is entitled to recover damages sustained as a result of Defendants wrongful
acts in an amount to be proven at trial.

33.
Defendants infringement of EKs rights under the 364 Design Patent will
continue to damage EKs business, causing irreparable harm, for which there is no adequate
remedy at law, unless it is enjoined by this Court.
34.
Upon information and belief, Defendant has willfully infringed the 364 Design
Patent, entitling EK to increased damages under 35 U.S.C. 284 and to attorney fees and costs
incurred in prosecuting this action under 35 U.S.C. 285.
6
PRAYER FOR RELIEF

WHEREFORE, Plaintiff EK asks this Court to enter judgment in its favor and against
Defendant under at least 35 U.S.C. 281, and grant the following relief:
A.
An adjudication that Defendant has infringed and continues to directly and
indirectly infringe the Asserted Patents;

B.
An adjudication that Defendants acts of infringement are willfull;
C.
Orders of this Court permanently enjoining Defendant, its agents, servants, and
any and all parties acting in concert with Defendant, from directly or indirectly infringing in any
manner any of the claims of Asserted Patents pursuant to at least 35 U.S.C. 283;
D.
An award of damages adequate to compensate EK for Defendants infringement
of the Asserted Patents in an amount to be proven at trial;

E.
A finding that this is an exceptional case and an award of Plaintiffs costs and
attorney fees;
F.
A trebling of the damage award to Plaintiff;
G.
An assessment and award of pre- and post-judgment interest on all damages
awarded; and
H.
Any further relief that this Court deems just and proper.
DEMAND FOR JURY TRIAL
Plaintiff hereby demands a trial by jury as to all claims and all issues properly triable
thereby.
Dated: September 1, 2016
TRASKBRITT, P.C.
By: /s/ H. Dickson Burton

H. Dickson Burton
Daniel J. Bezdjian
230 South 500 East # 300
Salt Lake City, Utah 84102
Telephone: (801) 532-1922
Facsimile: (801) 531-9168
Attorneys for Plaintiff, EK EKCESSORIES, INC.
Case 1:16-cv-00122-EJF Document 2-1 Filed 09/01/16 Page 1 of 11
Exhibit A
(U.S. Patent No. 6,709,100)
Exhibit B
(U.S. Design Patent No. D536,364)
Exhibit C
(SnugZ 2016 US Catalog)
CIVIL COVER SHEET
JS 44 (Rev. 11/15)
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
EK EKCESSORIES, INC.
SNUGZ/USA INCORPORATED
CACHE
(b) County of Residence of First Listed Plaintiff
County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES)

NOTE:
(c) Attorneys (Firm Name, Address, and Telephone Number)
SALT LAKE
(IN U.S. PLAINTIFF CASES ONLY)

IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
Attorneys (If Known)
TRASKBRITT, P.C., 230 SOUTH 500 EAST, SUITE 300

SALT LAKE CITY, UTAH 84102 (801) 532-1922
II. BASIS OF JURISDICTION (Place an X in One Box Only)

1
U.S. Government
Plaintiff
Federal Question
(U.S. Government Not a Party)
U.S. Government
Defendant
Diversity
(Indicate Citizenship of Parties in Item III)
UNKNOWN
III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff

(For Diversity Cases Only)
PTF
Citizen of This State
1
DEF
1
and One Box for Defendant)

PTF
DEF
Incorporated or Principal Place
4
4
of Business In This State
Citizen of Another State
Incorporated and Principal Place

of Business In Another State
Citizen or Subject of a
Foreign Country
Foreign Nation
IV. NATURE OF SUIT (Place an X in One Box Only)

CONTRACT
TORTS
110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment
151 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excludes Veterans)
153 Recovery of Overpayment
of Veterans Benefits
160 Stockholders Suits
190 Other Contract
195 Contract Product Liability
196 Franchise
REAL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property
PERSONAL INJURY
310 Airplane
315 Airplane Product
Liability
320 Assault, Libel &
Slander
330 Federal Employers
Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
362 Personal Injury Medical Malpractice
CIVIL RIGHTS
440 Other Civil Rights
441 Voting
442 Employment
443 Housing/
Accommodations
445 Amer. w/Disabilities Employment
446 Amer. w/Disabilities Other
448 Education
FORFEITURE/PENALTY
PERSONAL INJURY
365 Personal Injury Product Liability
367 Health Care/
Pharmaceutical
Personal Injury
Product Liability
368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
370 Other Fraud
371 Truth in Lending
380 Other Personal
Property Damage
385 Property Damage
Product Liability
PRISONER PETITIONS
Habeas Corpus:
463 Alien Detainee
510 Motions to Vacate
Sentence
530 General
535 Death Penalty
Other:
540 Mandamus & Other
550 Civil Rights
555 Prison Condition
560 Civil Detainee Conditions of
Confinement
625 Drug Related Seizure

of Property 21 USC 881
690 Other
BANKRUPTCY
422 Appeal 28 USC 158
423 Withdrawal
28 USC 157
PROPERTY RIGHTS
820 Copyrights
830 Patent
840 Trademark
LABOR
710 Fair Labor Standards
Act
720 Labor/Management
Relations
740 Railway Labor Act
751 Family and Medical
Leave Act
790 Other Labor Litigation
791 Employee Retirement
Income Security Act
SOCIAL SECURITY
861 HIA (1395ff)
862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(g))
FEDERAL TAX SUITS

870 Taxes (U.S. Plaintiff
or Defendant)
871 IRSThird Party
26 USC 7609
IMMIGRATION
462 Naturalization Application
465 Other Immigration
Actions
OTHER STATUTES
375 False Claims Act
376 Qui Tam (31 USC
3729(a))
400 State Reapportionment
410 Antitrust
430 Banks and Banking
450 Commerce
460 Deportation
470 Racketeer Influenced and
Corrupt Organizations
480 Consumer Credit
490 Cable/Sat TV
850 Securities/Commodities/
Exchange
890 Other Statutory Actions
891 Agricultural Acts
893 Environmental Matters
895 Freedom of Information
Act
896 Arbitration
899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
950 Constitutionality of
State Statutes
V. ORIGIN (Place an X in One Box Only)

1 Original
Proceeding
2 Removed from
State Court
Remanded from
Appellate Court
4 Reinstated or
Reopened
5 Transferred from
Another District
(specify)
6 Multidistrict
Litigation
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
35 U.S.C. 271; 35 U.S.C. 289
VI. CAUSE OF ACTION Brief description of cause:

Patent infringement
CHECK IF THIS IS A CLASS ACTION

VII. REQUESTED IN
UNDER RULE 23, F.R.Cv.P.
COMPLAINT:
VIII. RELATED CASE(S)
(See instructions):
IF ANY
JUDGE
DATE
CHECK YES only if demanded in complaint:

Yes
No
JURY DEMAND:
DEMAND $
DOCKET NUMBER
SIGNATURE OF ATTORNEY OF RECORD
/S/ H. DICKSON BURTON
09/01/2016
FOR OFFICE USE ONLY
RECEIPT #
AMOUNT
Print
APPLYING IFP
Save As...
JUDGE
MAG. JUDGE
Reset
JS 44 Reverse (Rev. 11/15)
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading 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. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a)
(b)
(c)
Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".
II.
Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III.
Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV.
Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is
sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than
one nature of suit, select the most definitive.
V.
Origin. Place an "X" in one of the six boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407.
When this box is checked, do not check (5) above.
VI.
Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII.
Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.

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Case 1:16-cv-00122-EJF Document 2 Filed 09/01/16 Page 1 of 8

H. Dickson Burton (4004)

Case No.: _______

Plaintiff EK is a Utah corporation located at 575 W. 3200 S. Nibley, UT 84321.

Defendant SnugZ is a Utah corporation with a principal place of business at 9258

Prosperity Rd. West Jordan, UT 84081.

Case 1:16-cv-00122-EJF Document 2 Filed 09/01/16 Page 2 of 8

NATURE OF THE ACTION

On information and belief, Defendant has infringed and continues to infringe,

1331 and 1338.

This Court has personal jurisdiction over Defendant SnugZ because it is

Venue is proper in this Court pursuant to 28 U.S.C. 1391 and 1400(b).

Case 1:16-cv-00122-EJF Document 2 Filed 09/01/16 Page 3 of 8

Plaintiff EK designs, develops, manufactures, and markets various high quality

issued patents, including the Asserted Patents.

On information and belief, Defendant develops, markets, and/or manufactures a

On information and belief, Defendant manufactures and sells a series of eyeglass

Case 1:16-cv-00122-EJF Document 2 Filed 09/01/16 Page 4 of 8

On information and belief, Defendant SnugZ operates and maintains a website at

www.snugzusa.com (hereinafter SnugZs website), where SnugZs products, including at least

On information and belief, Defendant SnugZ knows, should know, or is willfully

Plaintiff realleges and incorporates by reference the above paragraphs of this

Complaint, inclusive, as though fully set forth herein.

and/or constructive notice of the 100 Patent pursuant to 35 U.S.C. 287.

Defendants actions constitute infringement, either literal or under the doctrine of

Case 1:16-cv-00122-EJF Document 2 Filed 09/01/16 Page 5 of 8

As another example, Defendant infringes at least claim 11 of the 100 Patent by

EK has sustained damages and will continue to sustain damages as a result of

Defendants aforesaid acts of infringement.

EK is entitled to recover damages sustained as a result of Defendants wrongful

acts in an amount to be proven at trial.

Plaintiff realleges and incorporates by reference the above paragraphs of this

Complaint, inclusive, as though fully set forth herein.

Case 1:16-cv-00122-EJF Document 2 Filed 09/01/16 Page 6 of 8

Defendants actions constitute infringement, either literal or under the doctrine of

EK has sustained damages and will continue to sustain damages as a result of

Defendants aforesaid acts of infringement.

EK is entitled to recover damages sustained as a result of Defendants wrongful

acts in an amount to be proven at trial.

Case 1:16-cv-00122-EJF Document 2 Filed 09/01/16 Page 7 of 8

PRAYER FOR RELIEF

An adjudication that Defendant has infringed and continues to directly and

indirectly infringe the Asserted Patents;

An adjudication that Defendants acts of infringement are willfull;

An award of damages adequate to compensate EK for Defendants infringement

of the Asserted Patents in an amount to be proven at trial;

A trebling of the damage award to Plaintiff;

An assessment and award of pre- and post-judgment interest on all damages

Case 1:16-cv-00122-EJF Document 2 Filed 09/01/16 Page 8 of 8

Dated: September 1, 2016

By: /s/ H. Dickson Burton

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