Case 2:20-cv-10327 Document 1 Filed 11/11/20 Page 1 of 19 Page ID #:1

1 Stephen M. Doniger, Esq. (SBN 179314) [email protected] 2 Scott Alan Burroughs, Esq. (SBN 235718)

3 [email protected] Trevor W. Barrett (SBN 287174) 4 [email protected]

5 Justin M. Gomes (SBN 301793) [email protected] 6 DONIGER / BURROUGHS 7 603 Rose Avenue Venice, California 90291 8 Telephone: (310) 590-1820 9 Attorneys for Plaintiff 10 11 UNITED STATES DISTRICT COURT 12 CENTRAL DISTRICT OF CALIFORNIA 13 ST. TROPICA, INC., a Nevada Case No.: 14 Corporation, 15 PLAINTIFF’S COMPLAINT FOR: Plaintiff, 16 1. PATENT INFRINGEMENT

17 vs. Jury Trial Demanded 18 GIOVANNI COSMETICS, INC., a 19 California Corporation; 20 COMPANIES, INC., a Delaware Corporation, individually and doing 21 business as “,” 22 “Albertsons,” “,” “ Osco,” “Lucky’s Market,” and “”; THE 23 BARTELL DRUG COMPANY, a 24 Washington Corporation; BED BATH & BEYOND, INC., a New 25 York Corporation; FOODS, INC., 26 a Massachusetts Corporation; BROOKSHIRE GROCERY COMPANY, 27 a Texas Corporation; BUSCH’S, INC., a 28 1 COMPLAINT

Case 2:20-cv-10327 Document 1 Filed 11/11/20 Page 2 of 19 Page ID #:2

1 Michigan Corporation; COBORN’S, INCORPORATED, a Minnesota 2 Corporation; ,

3 INC., a Missouri Corporation; THE CO., an Ohio Corporation, 4 individually and doing business as

5 “,” “,” “Fry’s,” ,” “Kroger,” “,” and 6 “Roundy’s”; , INC., a 7 North Carolina Corporation; EARTH ORIGINS MARKET, a Florida business 8 entity of unknown form; , 9 LLC, a North Carolina Limited Liability Company; LAKES VENTURE, LLC, a 10 Delaware Limited Liability Company, 11 individually and doing business as “Fresh Thyme Market”; GELSON’S MARKETS, 12 a California Company; , 13 Inc., a Pennsylvania Corporation; HANNAFORD BROS. CO., LLC, a 14 Maine Limited Liability Company; 15 HEINEN’S, INC., an Ohio Corporation; HY-VEE, INC., an Iowa Corporation; 16 MARKETS, INCORPORATED, 17 a North Carolina Corporation; LASSENS NATURAL FOODS & VITAMINS, 18 LLC, a California Company; LOWES 19 FOODS, LLC, a North Carolina Limited Liability Company; LUND FOOD 20 HOLDINGS, INC., a Minnesota 21 Corporation; , INC., an Corporation; , 22 Inc., a Michigan Corporation; 23 MOTHER’S MARKET & KITCHEN, INC., a Delaware Corporation; 24 NATIONAL COOPERATIVE 25 GROCERS ASSOCIATION, an Iowa business entity; NATURAL GROCERS 26 BY VITAMIN COTTAGE, INC., a 27 Delaware Corporation; NAVARRO 28 2 COMPLAINT

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1 DISCOUNT PHARMACIES NO. 1, LLC, a Florida Limited Liability Company; 2 , LLC, an

3 Oregon Limited Liability Company; NUGGET MARKET, INC., a California 4 Corporation; PHARMACA

5 INTEGRATIVE PHARMACY, INC., a Delaware Corporation; THE PRICE 6 CHOPPER, INC., a New York 7 Corporation; SUPER MARKETS, INC., a Florida Corporation; 8 ROCHE BROS., INC., a Massachusetts 9 Corporation; ROUSE’S ENTERPRISES, LLC, a Louisiana Limited Liability 10 Company; WAKEFERN FOOD CORP., a 11 New Jersey Corporation, individually and doing business as “ShopRite”; SPROUTS 12 FARMERS MARKET, INC., a Delaware 13 Corporation; , a Minnesota Corporation; THE FRESH 14 MARKET, INC., a New Hampshire 15 Corporation; , INC., a Delaware Corporation; 16 FOOD MARKETS, INC., a New York 17 Corporation; SERVICES, INC., a Delaware 18 Corporation; YOKE’S FOODS, INC., a 19 Washington Corporation; and DOES 1-10,

20 Defendants.

21 22 23 24 Plaintiff, ST. TROPICA, INC. (“ST. TROPICA” or “Plaintiff”), by and 25 through its undersigned attorneys, hereby prays to this honorable Court for relief 26 based on the following: 27 28 3 COMPLAINT

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1 INTRODUCTION

2 Plaintiff creates natural, cruelty-free, vegan, and environmentally friendly hair

3 and skin care products. Plaintiff’s business is predicated in part on its extensive

4 research and development of new and innovative products. One such critical

5 innovation was Plaintiff’s invention of microwaveable package hot oil hair treatments

6 – an invention for which Plaintiff holds a United States patent. The defendants in this 7 case have developed, created, imported, purchased, and/or sold without permission 8 product infringing Plaintiff’s proprietary patented invention. 9 JURISDICTION AND VENUE 10 1. This action arises under the Patent Act, Title 35 U.S.C., § 101 et seq. 11 2. This Court has federal question jurisdiction under 28 U.S.C. § 1331 and 1338 12 (a) and (b). 13 3. Venue in this judicial district is proper under 28 U.S.C. § 1391(c) and 1400(a) 14 in that this is the judicial district in which a substantial part of the acts and omissions 15 giving rise to the claims occurred. 16 PARTIES 17 4. Plaintiff ST. TROPICA is a corporation organized and existing under the 18 laws of the State of Nevada with its principal place of business located in Las Vegas, 19 Nevada, and is doing business in and with the State of California. 20 5. Plaintiff is informed and believes and thereon alleges that Defendant 21 GIOVANNI COSMETICS, INC., (“GIOVANNI”) is a corporation organized and 22 existing under the laws of the State of California with its principal place of business 23 located in Beverly Hills, California, and is doing business in and with the State of 24 California. 25 6. Plaintiff is informed and believes and thereon alleges that Defendant 26 ALBERTSONS COMPANIES, INC., individually and doing business as “Acme 27 Markets,” “Albertsons,” “Haggen,” “Jewel Osco,” “Lucky’s Market,” and “Vons” 28 4 COMPLAINT

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1 (collectively “ALBERTSONS”) is a corporation organized and existing under the

2 laws of the State of Delaware with its principal place of business located at 250

3 Parkcenter Blvd. Boise, ID 83706, and is doing business in and with the State of

4 California.

5 7. Plaintiff is informed and believes and thereon alleges that Defendant THE

6 BARTELL DRUG COMPANY (“BARTELL”) is a corporation organized and 7 existing under the laws of the State of Washington with its principal place of 8 business located at 4025 Delridge Way SW, #400, Seattle, WA 98106, and is doing 9 business in and with the State of California. 10 8. Plaintiff is informed and believes and thereon alleges that Defendant BED 11 BATH & BEYOND, INC. (“BED BATH & BEYOND”) is a corporation organized 12 and existing under the laws of the State of New York with its principal place of 13 business located at 650 Liberty Ave., Union, NJ 07083, and is doing business in and 14 with the State of California. 15 9. Plaintiff is informed and believes and thereon alleges that Defendant BIG Y 16 FOODS, INC. (“BIG Y”) is a corporation organized and existing under the laws of 17 the State of Massachusetts with its principal place of business located at 2145 18 Roosevelt Ave., Springfield, MA 01104, and is doing business in and with the State 19 of California. 20 10. Plaintiff is informed and believes and thereon alleges that Defendant 21 BROOKSHIRE GROCERY COMPANY (“BROOKSHIRE”) is a corporation 22 organized and existing under the laws of the State of Texas with its principal place of 23 business located at P.O. Box 1411, Tyler, TX 75701, and is doing business in and 24 with the State of California. 25 11. Plaintiff is informed and believes and thereon alleges that Defendant 26 BUSCH’S, INC. (“BUSCH’S”) is a corporation organized and existing under the 27 laws of the State of Michigan with its principal place of business located at 2240 S. 28 5 COMPLAINT

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1 Main Street, Ann Arbor, MI 48103, and is doing business in and with the State of

2 California.

3 12. Plaintiff is informed and believes and thereon alleges that Defendant

4 COBORN’S, INCORPORATED (“COBORN’S”) is a corporation organized and

5 existing under the laws of the State of Minnesota with its principal place of business

6 located at 1921 Coborn Blvd, PO Box 6146 St. Cloud, MN 56302, and is doing 7 business in and with the State of California. 8 13. Plaintiff is informed and believes and thereon alleges that Defendant 9 DIERBERGS MARKETS, INC. (“DIERBERGS”) is a corporation organized and 10 existing under the laws of the State of Missouri with its principal place of business 11 located at 16690 Swingley Ridge Road, Chesterfield, MO 63017, and is doing 12 business in and with the State of California. 13 14. Plaintiff is informed and believes and thereon alleges that Defendant THE 14 KROGER CO., individually and doing business as “Dillons,” “Fred Meyer,” 15 “Fry’s,” King Soopers,” “Kroger,” “Ralphs,” and “Roundy’s” (collectively 16 “KROGER”) is a corporation organized and existing under the laws of the State of 17 Ohio with its principal place of business located at 1014 Vine Street, Cincinnati, OH 18 45202, and is doing business in and with the State of California. 19 15. Plaintiff is informed and believes and thereon alleges that Defendant 20 EARTH FARE, INC. (“EARTH FARE”) is a corporation organized and existing 21 under the laws of the State of North Carolina with its principal place of business 22 located at 220 Continuum Drive, Fletcher, NC 28732, and is doing business in and 23 with the State of California. 24 16. Plaintiff is informed and believes and thereon alleges that Defendant 25 EARTH ORIGINS MARKET (“EARTH ORIGINS”) is a business entity of 26 unknown form organized and existing under the laws of the State of Florida with its 27 28 6 COMPLAINT

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1 principal place of business located at 30555 US Hwy 19 N, Palm Harbor, FL 34684,

2 and is doing business in and with the State of California.

3 17. Plaintiff is informed and believes and thereon alleges that Defendant

4 FOOD LION, LLC (“FOOD LION”) is a limited liability company organized and

5 existing under the laws of the State of North Carolina with its principal place of

6 business located at P.O. Box 1330, Salisbury, NC 28145, and is doing business in 7 and with the State of California. 8 18. Plaintiff is informed and believes and thereon alleges that Defendant 9 LAKES VENTURE, LLC, individually and doing business as “Fresh Thyme 10 Market” (collectively “FRESH THYME”) is a limited liability company organized 11 and existing under the laws of the State of Delaware with its principal place of 12 business located at 2650 Warrenville Road, Suite 700, Downers Grove, IL 60515, 13 and is doing business in and with the State of California. 14 19. Plaintiff is informed and believes and thereon alleges that Defendant 15 GELSON’S MARKETS (“GELSON’S”) is a company organized and existing under 16 the laws of the State of California with its principal place of business located at 17 16400 Ventura Blvd., Suite 240, Encino, CA 91436, and is doing business in and 18 with the State of California. 19 20. Plaintiff is informed and believes and thereon alleges that Defendant 20 GIANT EAGLE, INC. (“GIANT EAGLE”) is a corporation organized and existing 21 under the laws of the State of Pennsylvania with its principal place of business 22 located at 101 Kappa Drive, Pittsburgh, PA 15238, and is doing business in and with 23 the State of California. 24 21. Plaintiff is informed and believes and thereon alleges that Defendant 25 HANNAFORD BROS. CO., LLC (“HANNAFORD”) is a limited liability company 26 organized and existing under the laws of the State of Maine with its principal place 27 28 7 COMPLAINT

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1 of business located at 145 Pleasant Hill Road, Scarborough, ME, and is doing

2 business in and with the State of California.

3 22. Plaintiff is informed and believes and thereon alleges that Defendant

4 HEINEN’S, INC. (“HEINEN’S”) is a corporation organized and existing under the

5 laws of the State of Ohio with its principal place of business located at 4540

6 Richmond Rd., Warrensville Heights, OH 44128, and is doing business in and with 7 the State of California. 8 23. Plaintiff is informed and believes and thereon alleges that Defendant HY- 9 VEE, INC. (“HY-VEE”) is a corporation organized and existing under the laws of 10 the State of Iowa with its principal place of business located at 5820 Westown Pkwy, 11 West Des Moines, IA 50266, and is doing business in and with the State of 12 California. 13 24. Plaintiff is informed and believes and thereon alleges that Defendant 14 INGLES MARKETS, INCORPORATED (“INGLES”) is a corporation organized 15 and existing under the laws of the State of North Carolina with its principal place of 16 business located at P.O. Box 6676, Asheville, NC 28816, and is doing business in 17 and with the State of California. 18 25. Plaintiff is informed and believes and thereon alleges that Defendant 19 LASSENS NATURAL FOODS & VITAMINS, LLC (“LASSENS”) is a company 20 organized and existing under the laws of the State of California with its principal 21 place of business located at 1650 Palma Dr., Suite 208, Ventura, CA 93003, and is 22 doing business in and with the State of California. 23 26. Plaintiff is informed and believes and thereon alleges that Defendant 24 , LLC (“LOWES”) is a limited liability company organized and 25 existing under the laws of the State of North Carolina with its principal place of 26 business located at PO Box 24908, Winston-Salem, NC 27114, and is doing business 27 in and with the State of California. 28 8 COMPLAINT

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1 27. Plaintiff is informed and believes and thereon alleges that Defendant

2 LUND FOOD HOLDINGS, INC. (“LUND”) is a corporation organized and existing

3 under the laws of the State of Minnesota with its principal place of business located

4 at 4100 West 50th Street, Suite 2100, Edina, MN 55424, and is doing business in and

5 with the State of California.

6 28. Plaintiff is informed and believes and thereon alleges that Defendant 7 MARKET OF CHOICE, INC. (“CHOICE”) is a corporation organized and existing 8 under the laws of the State of Oregon with its principal place of business located at 9 2862 Willamette St., Eugene, OR 97405, and is doing business in and with the State 10 of California. 11 29. Plaintiff is informed and believes and thereon alleges that Defendant 12 MEIJER, INC. (“MEIJER”) is a corporation organized and existing under the laws 13 of the State of Michigan with its principal place of business located at 2929 Walker 14 Ave., Grand Rapids, MI 49544, and is doing business in and with the State of 15 California. 16 30. Plaintiff is informed and believes and thereon alleges that Defendant 17 MOTHER’S MARKETS & KITCHEN, INC. (“MOTHER’S”) is a corporation 18 organized and existing under the laws of the State of Delaware with its principal 19 place of business located at 100 Kalmus Drive, Costa Mesa, CA 92626, and is doing 20 business in and with the State of California. 21 31. Plaintiff is informed and believes and thereon alleges that Defendant 22 NATIONAL COOPERATIVE GROCERS ASSOCIATION (“NATIONAL CO- 23 OP”) is a business entity organized and existing under the laws of the State of Iowa 24 with its principal place of business located at 14 South Linn Street, Iowa City, IA 25 52240, and is doing business in and with the State of California. 26 32. Plaintiff is informed and believes and thereon alleges that Defendant 27 NATURAL GROCERS BY VITAMIN COTTAGE, INC. (“NATURAL 28 9 COMPLAINT

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1 GROCERS”) is a corporation organized and existing under the laws of the State of

2 Delaware with its principal place of business located at 12612 West Alameda

3 Parkway, Lakewood, CO 802288, and is doing business in and with the State of

4 California.

5 33. Plaintiff is informed and believes and thereon alleges that Defendant

6 NAVARRO DISCOUNT PHARMACIES NO. 1, LLC (“NAVARRO”) is a limited 7 liability company organized and existing under the laws of the State of Florida with 8 its principal place of business located at 9675 NW 117th Ave., #202, Medley, FL 9 33178, and is doing business in and with the State of California. 10 34. Plaintiff is informed and believes and thereon alleges that Defendant NEW 11 SEASONS MARKET, LLC (“NEW SEASONS”) is a limited liability company 12 organized and existing under the laws of the State of Oregon with its principal place 13 of business located at 1300 SE Stark St., Suite 401, Portland, OR 97214, and is 14 doing business in and with the State of California. 15 35. Plaintiff is informed and believes and thereon alleges that Defendant 16 NUGGET MARKET, INC. (“NUGGET”) is a corporation organized and existing 17 under the laws of the State of California with its principal place of business located 18 at 311 Mace Blvd., Davis, CA 95618, and is doing business in and with the State of 19 California. 20 36. Plaintiff is informed and believes and thereon alleges that Defendant 21 PHARMACA INTEGRATIVE PHARMACY, INC. (“PHARMACA”) is a 22 corporation organized and existing under the laws of the State of Delaware with its 23 principal place of business located at 4940 Pearl East Circle, Suite 301, Boulder, CO 24 80301, and is doing business in and with the State of California. 25 37. Plaintiff is informed and believes and thereon alleges that Defendant THE 26 PRICE CHOPPER, INC. (“PRICE CHOPPER”) is a corporation organized and 27 existing under the laws of the State of New York with its principal place of business 28 10 COMPLAINT

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1 located at 461 Nott St., Schenectady, NY 12308, and is doing business in and with

2 the State of California.

3 38. Plaintiff is informed and believes and thereon alleges that Defendant

4 PUBLIX SUPER MARKETS, INC. (“PUBLIX”) is a corporation organized and

5 existing under the laws of the State of Florida with its principal place of business

6 located at PO Box 407, Lakeland, FL 33802, and is doing business in and with the 7 State of California. 8 39. Plaintiff is informed and believes and thereon alleges that Defendant 9 ROCHE BROS, INC. (“ROCHE”) is a corporation organized and existing under the 10 laws of the State of Massachusetts with its principal place of business located 70 11 Hastings St., Wellesley Hills, MA 02481, and is doing business in and with the State 12 of California. 13 40. Plaintiff is informed and believes and thereon alleges that Defendant 14 ROUSE’S ENTERPRISES, LLC (“ROUSE’S”) is a limited liability company 15 organized and existing under the laws of the State of Louisiana with its principal 16 place of business located at P.O. Box 5358, Thibodaux, LA 70302, and is doing 17 business in and with the State of California. 18 41. Plaintiff is informed and believes and thereon alleges that Defendant 19 WAKEFERN FOOD CORP., individually and doing business as “ShopRite” 20 (collectively “SHOPRITE”) is a corporation organized and existing under the laws 21 of the State of New Jersey with its principal place of business located at 5000 22 Riverside Drive, Keasbey, NJ 08832, and is doing business in and with the State of 23 California. 24 42. Plaintiff is informed and believes and thereon alleges that Defendant 25 , INC. (“SPROUTS”) is a corporation organized 26 and existing under the laws of the State of Delaware with its principal place of 27 28 11 COMPLAINT

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1 business located at 5455 E. High Street, Suite 111, Phoenix, AZ 85054, and is doing

2 business in and with the State of California.

3 43. Plaintiff is informed and believes and thereon alleges that Defendant

4 TARGET CORPORATION (“TARGET”) is a corporation organized and existing

5 under the laws of the State of Minnesota with its principal place of business located

6 at 1010 Dale St. N, St. Paul, MN 55117, and is doing business in and with the State 7 of California. 8 44. Plaintiff is informed and believes and thereon alleges that Defendant THE 9 FRESH MARKET, INC. (“FRESH MARKET”) is a corporation organized and 10 existing under the laws of the State of New Hampshire with its principal place of 11 business located at 628 Green Valley Road, Suite 500, Greensboro, NC 27408, and 12 is doing business in and with the State of California. 13 45. Plaintiff is informed and believes and thereon alleges that Defendant 14 WALMART, INC. (“WALMART”) is a corporation organized and existing under 15 the laws of the State of Delaware with its principal place of business located at 702 16 S.W. 8th Street, Bentonville, AK 72716, and is doing business in and with the State 17 of California. 18 46. Plaintiff is informed and believes and thereon alleges that Defendant 19 WEGMANS FOOD MARKETS, INC. (“WEGMANS”) is a corporation organized 20 and existing under the laws of the State of New York with its principal place of 21 business located at 1500 Brooks Avenue, Box 30844, Rochester, NY 14603, and is 22 doing business in and with the State of California. 23 47. Plaintiff is informed and believes and thereon alleges that Defendant 24 WHOLE FOODS MARKET SERVICES, INC. (“WHOLE FOODS”) is a 25 corporation organized and existing under the laws of the State of Delaware with its 26 principal place of business located at 550 Bowie Street, Austin, TX 78703, and is 27 doing business in and with the State of California. 28 12 COMPLAINT

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1 48. Plaintiff is informed and believes and thereon alleges that Defendant

2 YOKE’S FOODS, INC. (“YOKE’S”) is a corporation organized and existing under

3 the laws of the State of Washington with its principal place of business located at

4 3426 S University Road, Spokane Valley, WA 99206, and is doing business in and

5 with the State of California.

6 49. Plaintiff is informed and believes and thereon alleges that Defendants 7 DOES 1-10, inclusive, are manufacturers and/or vendors (and/or agents or 8 employees to a manufacturer or vendor) of cosmetics, which DOE Defendants have 9 manufactured and/or supplied and are manufacturing and/or supplying cosmetics and 10 other product produced infringing Plaintiff’s patent (as hereinafter defined) without 11 Plaintiff’s knowledge or consent or have contributed to said infringement, or other 12 currently unknown retail or wholesale customers of the named defendants. Plaintiff 13 will seek leave to amend this Complaint to show their true names and capacities 14 when same have been ascertained. 15 50. Plaintiff is informed and believes and thereon alleges that at all times 16 relevant hereto each of the Defendants was the agent, affiliate, officer, director, 17 manager, principal, alter-ego, and/or employee of the remaining Defendants and was 18 at all times acting within the scope of such agency, affiliation, alter-ego relationship 19 and/or employment; and actively participated in or subsequently ratified and 20 adopted, or both, each and all of the acts or conduct alleged, with full knowledge of 21 all the facts and circumstances, including, but not limited to, full knowledge of each 22 and every violation of Plaintiff’s rights and the damages to Plaintiff proximately 23 caused thereby. 24 CLAIMS RELATED TO U.S. PATENT NO. 10,301,099 B2 25 51. On May 28, 2019, U.S. Patent No. 10,301,099 B2 entitled “PACKAGE 26 OF TREATMENT MATERIAL HEATED BY MICROWAVE” (“the ‘099 patent”), 27 was duly and legally issued to inventors Sean Carolan and Tianna Jaisaard, the 28 13 COMPLAINT

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1 principals of ST. TROPICA. A true copy of the ‘099 patent is attached hereto as

2 Exhibit A.

3 52. ST. TROPICA is the owner by assignment of the ‘099 patent with full and

4 exclusive right to bring suit to enforce the ‘099 patent.

5 53. The ‘099 patent generally relates to method of applying cosmetic

6 treatment material directly to the user’s head hair by providing the treatment 7 material, such as coconut oil, in a sealed flexible laminated plastic foil-free package, 8 that may or may not include a spout, that can be heated in a microwave oven or hot 9 water to the required temperature for ideal application. Exemplary Figs. 1-2 from the 10 patent are reproduced below. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

28 14 COMPLAINT

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1 54. On information and belief, the Defendants have been and are infringing,

2 contributing to infringement, and/or inducing others to infringe the ‘099 patent by

3 making, offering for sale, selling or importing cosmetics products that infringe the

4 ‘099 patent. Defendants are sophisticated entities in the cosmetics and retail

5 industries and are uniquely aware of the existence of patents associated with

6 preparing and applying cosmetic treatments. Despite this, Defendants recklessly 7 manufactured and utilized distinct flexible laminate microwaveable packages for 8 cosmetic treatments which they either knew or should have known to have been 9 illegally made using Plaintiff’s patented invention. Certain Defendants, with 10 knowledge of the infringing nature of the cosmetic treatment packages, ordered, 11 manufactured, sold and distributed the infringing products to their customers with 12 the specific intention of encouraging the further manufacture, sale, and distribution 13 of the infringing product and the infringement of the ‘099 patent inherent therein. 14 Defendants’ acts of infringement have occurred within this district and elsewhere 15 throughout the United States and Canada. For clarity images of an exemplar ST. 16 TROPICA product practicing the patent and of an exemplar infringing product 17 marketed and sold by Defendants are reproduced below: 18 19 20 21 22 23 24 /// 25 /// 26 /// 27 28 15 COMPLAINT

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1 ST TROPICA PATENTED DEFENDANTS’ ACCUSED PRODUCT EXEMPLAR PRODUCT EXEMPLAR 2

3

4

5

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

27 28 16 COMPLAINT

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1 55. Specifically, the patented claims 1-9 read on the Defendants’ product,

2 including but not limited to the accused product exemplar identified and pictured

3 above, in at least the following ways: Defendants’ products employ a method for

4 applying cosmetic treatment to the head hair of a user by supplying the treatment

5 material in a sealed flexible laminate plastic package that is foil free that has an

6 oxygen transfer rate that allows it to be heated correctly and consistently in a 7 microwave oven or in a hot water bath with the package remaining sealed, an 8 opening is made in the package, the warmed treatment material is removed from the 9 package, the warmed treatment material is applied directly to the head hair of the 10 user, the package is Bisphenol A (BPA)-free, the package is formed of a laminate of 11 polyester film and polyethylene film, the treatment material comprises coconut oil 12 which is solid at room temperature and is warmed to a temperature sufficient to melt 13 the coconut oil to form a liquid, a built-in spout is formed at the package opening at 14 defined location re-sealing the opening, and the laminate of plastic materials is 15 transparent and reverse printing is applied to cover the package apart from a 16 transparent window in the package formed by omitting the reverse printing at the 17 window. 18 56. On information and belief, the Defendants have willfully infringed the ‘099 19 patents by continuing their acts of infringement after being on notice of the patent. 20 FIRST CLAIM FOR RELIEF 21 (For Patent Infringement - Against All Defendants) 22 57. Plaintiff repeats, realleges and incorporates herein by reference as 23 though fully set forth the allegations contained in the preceding paragraphs of this 24 Complaint. 25 58. In violation of 35 U.S.C. §271, Defendants have infringed and are 26 continuing to infringe, literally and/or under the doctrine of equivalents, the ‘099 27 patent by making, using, importing, offering for sale, and/or selling cosmetic 28 17 COMPLAINT

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1 products that infringe the ‘099 patent, and/or by inducing or contributing to the

2 infringement of the ‘099 patent by others.

3 59. Plaintiff marked its patented material in the United States and

4 international markets with a “PATENT PENDING” indicator from the beginning of

5 2014. Plaintiff further directly advised GIOVANNI in in February 2020 that its

6 products violate Plaintiff’s rights in the ‘099 patent. As such, Defendants, and each 7 of them, had constructive notice through Plaintiff’s marking, Plaintiff’s Federal 8 patent registration, and Plaintiff’s direct cease and desist correspondence of 9 Plaintiff’s patent rights. Defendants’, and each of their, exploitation of the patented 10 material with such notice constitutes willful infringement. 11 Plaintiff has been damaged by the Defendants’ infringement, and Defendants 12 will continue their infringing activity and Plaintiff will continue to be damaged. 13 PRAYER FOR RELIEF 14 Wherefore, Plaintiff prays for judgment as follows: 15 Against All Defendants 16 a. That Defendants, their agents and employees, all parent and subsidiary 17 corporations, all assignees and successors in interest, and those persons 18 in active participation with Defendants, be enjoined from infringing 19 Plaintiff’s ‘099 patent in any manner; 20 b. an award of damages under 35 U.S.C. § 287 for Defendants’ 21 infringements of Plaintiff’s ‘099 patent; 22 c. a trebling of damages pursuant to 35 U.S.C. § 284; 23 d. an award of attorney fees pursuant to 35 U.S.C. § 285; 24 e. That Plaintiff be awarded pre-judgment interest as allowed by law; 25 f. That Plaintiff be awarded the costs of this action; and 26 g. That Plaintiff be awarded such further legal and equitable relief as the 27 Court deems proper. 28 18 COMPLAINT

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1 A TRIAL BY JURY PURSUANT TO FED. R. CIV. P. 38 AND

2 CONSTITUTIONAL AMENDMENT SEVEN IS HEREBY DEMANDED.

3

4 Respectfully submitted,

5

6 Dated: November 11, 2020 By: /s/ Scott Alan Burroughs 7 Scott Alan Burroughs, Esq. Trevor W. Barrett, Esq. 8 Justin M. Gomes, Esq. 9 DONIGER / BURROUGHS Attorneys for Plaintiff 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 COMPLAINT