New Patent Litigation: Cardshark, LLC v. Five Below, Inc.

02-23-2017 – Cardshark is alleging infringement of its patent on certain cell phone cases. Don’t expect a lot of news coverage on this one.


 

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

 

CARDSHARK, LLC,

 

 

 

FIVE BELOW, INC.,

 

v.  

Plaintiff,

Defendant.

 )

)

) Case No. _____________

)  )

) COMPLAINT FOR PATENT

) INFRINGEMENT

)  )

) DEMAND FOR JURY TRIAL

)  

)

)

 

 

) )

 

 

 

PLAINTIFF CARDSHARK, LLC’S 

COMPLAINT FOR PATENT INFRINGEMENT

AND DEMAND FOR JURY TRIAL

Plaintiff Cardshark, LLC (“Cardshark” or Plaintiff”) by and for its Complaint against

Defendant Five Below, Inc. (“Five Below” or “Defendant”) hereby alleges as follows:

NATURE OF THE CASE

  1. This is an action for patent infringement arising under the patent laws of the United States. Plaintiff holds the rights in U.S. Patent Nos. 8,381,904 (“the 904 patent”) and 8,047,364 (“the ‘364 patent). The United States patent laws grant the holder of a patent the right to exclude infringers from making, using, selling or importing the invention claimed in a patent, and to recover damages for the infringer’s violations of these rights, and to recover treble damages where the infringer willingly infringed the patent.  Under 35 U.S.C. § 282(a), the ‘904 and ‘364 Patents are entitled to a presumption of validity.  Plaintiff is suing Defendant for infringing its patents, and doing so willfully.  Plaintiff seeks to recover damages from Defendant, including treble damages for willful infringement.

COMPLAINT FOR PATENT INFRINGEMENT

 

THE PARTIES

  1. Cardshark, LLC is a company, organized and existing under the laws of the State of New York, with a principal place of business at 7764 North Sheridan Road, Chicago, Illinois 60626.
  2. Upon information and belief, Defendant Five Below, Inc., is a corporation, organized and existing under the laws of the State of Pennsylvania with its principal place of business at 1818 Market Street, Suite 1900, Philadelphia, Pennsylvania 19103.

JURISDICTION

  1. This is an action for patent infringement arising under the patent laws of the United States of America, more specifically under 35 U.S.C. § 100, et seq. Subject matter jurisdiction is proper in this Court pursuant to 28 U.S.C. §§ 1331 and 1338.
  2. The Court has personal jurisdiction over Defendant because Defendant, among other things, conducts business in, and avails itself of the laws of, the State of New York. In addition, upon information and belief, Defendant through its own acts and/or through the acts of its affiliated companies (acting as its agents, retailers or alter egos) makes, uses, offers to sell, sells (directly or through intermediaries), imports, licenses and/or supplies, in this District and elsewhere in the United States, products, through regular distribution channels, knowing such products would be used, offered for sale and/or sold in this District.  For example, without limitation, Five Below identifies retail locations in the State of New York and in this District on its website, http://www.fivebelow.com.  Plaintiff’s cause of action arises directly from Defendant’s business contacts and other activities in the State of New York and in this District.
  3. Upon information and belief, Defendant directly or through its subsidiaries or intermediaries, makes, uses, offers for sale, sells, imports, advertises, makes available and/or

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markets and, at all relevant times has made, used, offered for sale, sold, imported, advertised and made available and/or marketed products within the Southern District of New York, through its http://www.fivebelow.com website, thereby infringing the ‘904 and ‘364 patents.

VENUE

  1. Venue properly lies within this judicial district and division, pursuant to 28 U.S.C. §§ 1391(b), (c), and (d), and 1400(b).
  2. Upon information and belief, Defendant resides in this District for the purposes of venue, insofar as it is subject to the personal jurisdiction in this District, has committed acts of infringement in this District, solicits business in this District, and conducts other business in this

District.

INFRINGEMENT OF U.S. PATENT NO. 8,381,904

  1. Plaintiff incorporates by reference the allegations set forth in the preceding paragraphs.
  2. On February 26, 2013, the ‘904 patent, entitled “Protective Covering For Personal Electronic Device,” was duly and lawfully issued based upon an application filed by the inventor, Kip Azzoni (formerly known as “Kip Longinotti-Buitoni”). A true and correct copy of the ‘904 Patent is attached hereto as Exhibit 1.
  3. Plaintiff is the assignee and the owner of all right, title and interest in and to the

‘904 patent, and has the right to sue and recover damages for infringement thereof.

  1. Upon information and belief, Defendant has engaged in the design, manufacture, marketing, offer for sale and sale of one or more Five Below-branded phone cases, including but not limited to Five Below’s Product SKU’s and/or device models: 2754224 (in various colors), 2754257 (in various colors), and 2754240 (in various colors), 2643112 (in various colors),

3

2719888 (in various colors), d:vice Iphone 6 Case (Model # ZB-600-IPH6)(collectively the “’904 Accused Products”).

  1. Upon information and belief, Defendant has been and continues to be engaged in making, using, importing, selling and/or offering for sale infringing products, including, but not limited to, the ‘904 Accused Products in the United States generally, and in the Southern District of New York specifically. The ‘904 Accused Products are available for retail purchase through the http://www.fivebelow.com website.
  2. Upon information and belief, by acts including, but not limited to use, making, importation, offers to sell, sales and marketing of products that fall within the scope of at least claim 1 of the ‘904 patent, Defendant has directly infringed literally and/or upon information and belief, equivalently, and is continuing to infringe the ‘904 patent and is thus liable to Plaintiff pursuant to 35 U.S.C. § 271.
  3. Defendant has indirectly infringed and continues to infringe at least claim 1 of the ‘904 patent by inducement under 35 U.S.C. 271(b). Defendant has induced and continues to induce users, retailers and dealers of the ‘904 Accused Products to directly infringe at least claim 1 of the ‘904 patent.
  4. Upon information and belief, Defendant knowingly induced users, retailers and dealers to market, sell, and/or use the Accused Products, including, for example, by promoting such products online (e.g., http://www.fivebelow.com).
  5. Defendant’s infringement of the ‘904 patent is without consent of, authority of, or license from Plaintiff.
  6. Upon information and belief, Defendants’ infringement of the ‘904 patent is

willful.

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  1. As a result of Defendant’s acts of infringement, Plaintiff has suffered and will continue to suffer damages in an amount to be proven at trial.

INFRINGEMENT OF U.S. PATENT NO. 8,047,364

  1. Plaintiff incorporates by reference the allegations set forth in the preceding paragraphs.
  2. On November 1, 2011, the ‘364 patent, entitled “Protective Covering For Personal Electronic Device,” was duly and lawfully issued based upon an application filed by the inventor, Kip Azzoni (formerly known as “Kip Longinotti-Buitoni”). A true and correct copy of the ‘364 Patent is attached hereto as Exhibit 2.
  3. Plaintiff is the assignee and the owner of all right, title and interest in and to the

‘364 patent, and has the right to sue and recover damages for infringement thereof.

  1. Upon information and belief, Defendant has engaged in the design, manufacture, marketing, offer for sale and sale of one or more Five Below-branded phone cases, including but not limited to the following Five Below Products: Slim Case Slim & Clear Case With Card

Holder (fit for Samsung Galaxy S6 edge)(Item # CA-0059-Clear), and Slim Case Slim & Clear

Case with Card Holder (fit for iPhone 6/6s)(Item # CA-0057-Clear) (collectively “the ’364 Accused Products”).

  1. Upon information and belief, Defendant has been and continues to be engaged in making, using, importing, selling and/or offering for sale infringing products, including, but not limited to, the ‘364 Accused Products in the United States generally, and in the Southern District of New York specifically. The ‘364 Accused Products are available for retail purchase through the http://www.fivebelow.com website.
  2. Upon information and belief, by acts including, but not limited to use, making, importation, offers to sell, sales and marketing of products that fall within the scope of at least

5

claim 1 of the ‘364 patent, Defendant has directly infringed literally and/or upon information and belief, equivalently, and is continuing to infringe the ‘364 patent and is thus liable to Plaintiff pursuant to 35 U.S.C. § 271.

  1. Defendant has indirectly infringed and continues to infringe at least claim 1 of the ‘364 patent by inducement under 35 U.S.C. 271(b). Defendant has induced and continues to induce users, retailers and dealers of the ‘364 Accused Products to directly infringe at least claim 1 of the ‘364 patent.
  2. Upon information and belief, Defendant knowingly induced users, retailers and dealers to market, sell, and/or use the Accused Products, including, for example, by promoting such products online (e.g., http://www.fivebelow.com).
  3. Defendant’s infringement of the ‘364 patent is without consent of, authority of, or license from Plaintiff.
  4. Upon information and belief, Defendants’ infringement of the ‘364 patent is

willful.

  1. As a result of Defendant’s acts of infringement, Plaintiff has suffered and will continue to suffer damages in an amount to be proven at trial.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff requests this Court enter judgment as follows:

  1. That the ‘904 and ‘364 patents are valid and enforceable;
  2. That Defendant has directly and indirectly infringed at least claim 1 of the

‘904 patent and claim 1 of the ’364 patent;

  1. That such infringement is willful;

6

  1. That Defendant account for and pay to Plaintiff all damages pursuant to

35 U.S.C. § 284 to adequately compensate Plaintiff for Defendant’s infringement of the ‘904 and ‘364 patents, but in no event less than a reasonable royalty for the use made by Defendant of the invention set forth in the ‘904 and ‘364 patents;

  1. That Plaintiff receives enhanced damages, in the form of treble damages,

pursuant to 35 U.S.C. § 284;

  1. That this is an exceptional case under 35 U.S.C. § 285;
  2. That Defendant pay Plaintiff all of Plaintiff’s reasonable attorneys’ fees

and expenses pursuant to 35 U.S.C. § 285;

  1. That Plaintiff be granted pre-judgment and post-judgment interest in

accordance with 35 U.S.C. § 284 on the damages caused to it by reason of Defendant’s infringement of the ‘904 and ‘364 patents, including pre-judgment and post-judgment interest on any enhanced damages or attorneys’ fees award;

  1. That costs be awarded in accordance with 35 U.S.C. § 284 to Plaintiff; and
  2. That Plaintiff be granted such other and further relief as the Court may

deem just and proper under the circumstances.

             

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DEMAND FOR JURY TRIAL

 

Plaintiff hereby demands a trial by jury on all issues so triable in this action.

 

 

Dated:  February 22, 2017                Zachary Silbersher (ZS4391)

                                              zsilbersher@kskiplaw.com

                                                 Gaston Kroub (GK6970)

gkroub@kskiplaw.com Sergey Kolmykov (SK7790) skolmykov@kskiplaw.com

KROUB, SILBERSHER & KOLMYKOV PLLC

 

305 Broadway, 7th Floor

New York, NY 10007

Telephone No.:  (212) 323-7442

 

ATTORNEYS FOR PLAINTIFF  

CARDSHARK, LLC

 

 

 

 

 

 

 

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