Alex & Ani v. Reep - Am Complaint

Case 1:12-cv-07887-AJN Document 3 Filed 11/05/12 Page 1 of 20
GARBARINI FITZGERALD P.C.

420 Lexington Avenue
Suite 2743
New York, New York 10170
(212) 300-5358
Fax (888) 265-7054
Richard M. Garbarini (5496)
Thomas J. FitzGerald (2426)
Latrisha Desrosiers (6971)
Attorneys for Plaintiff Alex and Ani, LLC
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ALEX AND ANI, LLC,
Plaintiff,
v.
RANDA I. REEP and RODNEY REEP d/b/a
BELLA RYANN and R & L
MERCHANDISING, LLC,
Defendants.
Case No.: 12-cv-7887 (AJN)
ECF CASE
FIRST AMENDED
COMPLAINT AND JURY
DEMAND
Plaintiff Alex and Ani, LLC, by and through its attorneys at GARBARINI
FITzGERALD P.c., by way of its First Amended Complaint against Randa Isa Reep and
Rodney Reep d/b/a Bella Ryann and R & L Merchandise, LLC (collectively referred to
herein as Defendants), alleges as follows:
NATURE OF THE CASE
1. This is an action at law and in equity arising under the patent laws of the
United States, 35 U.S.C. 101 et seq.; the Lanham Act, 15 U.S.C. 1051 et seq.; and
for substantial and related New York and common-law claims.
2. Alex and Ani, LLC is an American jewelry company based in Rhode
Island. At all times relevant to this Complaint, Alex and Ani created, mmmfactured m1d
distributed an iconic bangle which is the subject of United States Leiters Patent No.
D498, 167 entitled "Expandable Wire Bracelet" (the '" 167 Patent"). The iconic Alex and
Ani line of bangles and channs has also achieved secondary meaning in the United States
marketplace.
3. Defendant Rm1da Isa Reep ("RANDA") and Rodney Gene Reep
("RODNEY") (collectively referred to herein as the "REEPS" or the "REEP
Defendants") are individuals doing business under the name Bella Rymm. Through the
Bella Rymm label, the REEPS have manufactured, imported, sold and otherwise
distributed knockoff bangle bracelets throughout the United States, m1d attempted to
capitalize on the goodwill of the iconic Alex and Ani brand.
4. Upon infom1ation and beliefR & L Merchandise, LLC ("R & L") is a
limited liability company organized under the laws of Tennessee. The REEPS have
claimed it is actually R & L that is doing business under the nmne Bella Ryan and that
has manufactured, imported, sold and otherwise distributed knockoff bangles throughout
the United States, and attempted to capitalize on the goodwill of the iconic Alex and Ani
brand.
5. At no time has R & L filed to do business as Bella Rymm, as required
under Tennessee Law, Tenn. Code Ann. 48-249-106(d), or held itself out as being
affiliated in any way with Bella Rymm. For example, neither the Bella Rymm catalogue
nor website identifies Bella Rymm as being affiliated with R & L.
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6. This is simply a matter of two individuals who have distributed infringing
goods, and once caught, tried to limit their liability by claiming an unaffiliated company
somehow bears the liability.
PARTIES
7. Alex and Ani, LLC is a limited liability company organized under the
laws of the State of Rhode Island with a principal place of business located at 2000
Chapel View Boulevard, Cranston, Rhode Island. Alex and Ani also maintains offices in
this Judicial District.
8. Defendant Randa Reep is an individual residing in Nashville, Tennessee.
RANDA imports, sells ancl/or distributes jewelry throughout the United States, and in this
Judicial District under the name Bella Rya1m.
9. Defendant Rodney Reep is an individual residing in Nashville, Tennessee.
RODNEY imports, sells and/or distributes jewelry throughout the United States, and in
tllis Judicial District under the name Bella Ryann.
10. Upon information and belief, the REEPS own 100% of the Bella Ryann
bra11d.
11. Defendant R & L Merchandise, LLC is a linlitedliability company
organized tmder the laws ofTe1messee. Upon information provided by the REEPS,
R & L manufactures, imports, sells a11cllor distributes jewelry throughout the United
States, and in tllis Judicial District under the name Bella Ryann.
JURISDICTION AND VENUE
12. Tllis action arises under the Patent Act of 1952, 35 U.S.C. 101 et seq.,
a11d Section 39 of the Lanha1n Act 15 U.S.C. 1121, and tmder principles of
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supplemental jurisdiction, 28 U.S.C. 1367. This Comi has subject matter jurisdiction
pursuant to 15 U.S.C. 1121 and 28 U.S. C. 1331, 1338 and 1367.
13. This Court has genera/jurisdiction over the Defendants pursuant to
Section 301 of the New Y ode CPLR because over the past year and a half Defendants,
individually and through their purported company, have engaged in such a continuous
and systematic course of doing business here that a finding of their presence in tllis
jurisdiction is wmranted. Defendm1ts maintain a pennm1ent presence with a fair measure
ofpennm1ence and continuity.
14. Tills Court has spec?fic jurisdiction over Defendants pmsuant to New
York's long-arm statute codified at CPLR 302. Jurisdiction is confened here under
302(a)(l) because the Defendants, individually m1d through their purpmied company,
"transact business" in New York, and tills cause of action arises from such transaction of
business in New York.
15. Tills Court has in personam jurisdiction over the REEP Defendants
because the REEP Defendants have distributed or sold infringing merchm1dise under the
nmne Bella Ryann witilln tllis Judicial District, have manufactmed or distributed products
used or consumed within tills Judicial District in the ordinary comse of trade, or have
otherwise made or established contacts within tills Judicial District, sufficient to pennit
the exercise of personal jmisdiction.
16. Venue is proper in tills District under 38 U.S.C. 1391(b) and (c) and
1400(b) because the Defendants reside and/or may be found in tills Judicial District and
acts of infringement were co111111itted in this Judicial District. Venue is also proper in this
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District pursuant to 28 U.S.C. 1391(b)(2) because a substantial pati ofthe events or
omissions giving rise to Plaintiff's claims occmred in this District.
General Jurisdictional Facts
17. Sometime in 2011, Defendm1ts plotted to enter the New York mmket by
retaining sales associates in the New York City and Long Island areas. One of the agents
was, atld is, Cheryl Cohen of Don Mar Associates.
18. Upon information at1d belief, Ms. Cohen is a resident ofNew York.
19. Defendm1ts' New York representatives render services on behalf of the
Defendants that go beyond mere solicitation and are sufficiently important to Defendants
that the Defendants themselves would perfonn equivalent services if no agent were
available.
20. In fact, on or about October 23, 2012 when contacted to list the retail
stores in New York selling infringing Bella Ryann products, RODNEY did not know, but
deferred to Ms. Cohen as his agent responsible for independently determining which
stores in New York Defendants sold their products.
21. At all times material to this Complaint, Ms. Cohen and Don Mar
Associates had the authority to enter into contracts atld enter new account locations.
22. Upon information and belief, Ms. Cohen contacted many New York City
and Long Island retail outlets and entered into numerous contracts to sell Defendants'
infi:inging Bella Ryann products.
23. From July 2011 through 2012, the infringing Bella Ryann products were
also shown and sold at various trade shows like the New York International Gift Fair held
at the Jacob K. Javits Convention Center.
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24. Defendants also entered into contracts with national retailers including
Hallmark Stores for distribution ofthe infringing Bella Rymm bangles into the New York
metropolitan area.
Personal Jurisdictional Facts
25. At all times relevant to this Complaint, the REEPS have held themselves
out as the owners of Bella Ryann.
26. Bella Rymm has no corporate fonn or affiliation. The REEPS have
claimed R & L is the corporate parent of Bella Rymm. R & L has never filed under
Te1messee Law, Tel111. Code Ann. 48-249-106(d), to do business as Bella Ryann.
27. The Bella Ryann catalogue does not list any corporate parent or affiliation.
See Catalogue Exhibit A. Nor does the Face book page for Bella Rymm list any
affiliation to R & L. See Facebook Page Exhibit B. In fact, the phone number and
address associated with Bella Rymm is for the REEPS' personal phone and address.
28. While Bella Ryal111 identifies itself with a common law "TM", it has
neither registered nor sought to register, the trademark within the United States Patent
and Trademark Office.
PLAINTIFF'S FAMOUS MARK
29. Alex and Ani is a manufacturer and distributor of the finest quality fashion
jewelry designs that cmTy self-affim1ing messages based on the life and experiences of
their creator, Carolyn Rafaelian. The products beming the Alex and Ani Trade Dress are
manufactured in Rhode Islm1d m1d sold through authorized retailers.
30. The distinctive Alex and Ani products feature a bangle style bracelet with
a single medallion-style chann attached to it, where the medallion-style cham1 bears one
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of a number of distinctive Alex and Ani-designed images. The iconic bm1gles also have a
small metal tag for which Alex and Ani is fmnous m1d that identifies the products as Alex
and Ani designs.
31. This unique combination of elements (the "Alex and Ani Trade Dress")
serves to readily distinguish for consumers Plaintiffs wide rm1ge of products from the
goods of competitors. Plaintiff enjoys substm1tial goodwill in the design of the Alex m1d
Ani products, owing to Plaintiffs lengthy, innovative and exclusive use of the distinctive
product design.
32. A smnple of the Alex m1d Ani Trade Dress is shown below:
33. Plaintiff has continuously used the Alex m1d Ani Trade Dress in
commerce since at least as early as 2004.
34. Since that time, Plaintiff has gone to great expense m1d effort to develop,
promote m1d protect the Alex m1d Ani Trade Dress. As a result of Alex and Ani's effmis
m1dlongevity, the Alex m1d Ani Trade Dress m1d all products sold bearing the Alex m1d
Ani Trade Dress have become widely recognized by consumers m1d the industry as being
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associated with Plaintiff. Alex and Ani's products have achieved a well-deserved
reputation for quality and have experienced impressive sales growth and success over the
last eight years.
35. The excellence of Alex and Ani products has been widely recognized in
the United States and worldwide and has favorably been reported upon by the press. Just
a few of the many publications that have reported on Plaintiffs well-known Trade Dress
are Vogue, Glamour, Redbook, InStyle Spain, Lucky Magazine, Daily Front Row, ELLE,
ELLE Spain, Women's Health and Brides.
36. The Alex and Ani Trade Dress has become well known and identified in
the minds of the trade and the pmchasing public as identifying these products as the
products of Alex and Ani. The Alex and Ani Trade Dress has come to indicate the source
and quality of these products, to signify the association with Alex and Ani, and has
become an important business asset of immense and incalculable value.
DEFENDANTS' WRONGFUL ACTS
37. Plaintiff discovered that Defendants were manufactming, importing,
selling, and/or distributing goods bearing Plaintiff's Trade Dress (the "Infringing
Goods") in retail outlets throughout the United States, and in particular New York.
38. An inspection of Defendants' products confirmed that Defendants' goods
bear Plaintiff's valuable Trade Dress.
3 9. A representative example of the Infringing Design of an Alex and Ani
bangle along with the genuine design is shown below:
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Infringing Bella Ryann Bangle Genuine Alex and Ani Bangles
40. A representative example of the Infringing Design of an Alex and Ani line
of bangles along with the genuine line is shown below:
Infringing Bella Ryann Line Genuine Alex and Ani Line
41. Upon information and belief, Defendants are offering for sale and selling
goods bearing the Alex and Ani Trade Dress to wholesalers, distributors, retail outlets
and individuals.
42. Defendants' Infringing Goods bearing the Infringing Designs are otlered
in the same channels of trade as Plaintiff's goods bearing the Alex and Ani Trade Dress.
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4 3. Alex and Ani has not consented to Defendants' use of the Infringing
Designs, nor has Plaintiff sponsored, endorsed or approved the goods or services offered
or promoted by Defendants.
44. Defendants' unauthorized use of the Infringing Designs is likely to cause
confusion, to cause mistake, and to deceive an appreciable number of reasonably prudent
customers and prospective customers into falsely believing that Defendants'' goods are
provided, sponsored or approved by Alex and Ani or that there is a connection or
affiliation between Alex and Ani and Defendants.
45. Upon infom1ation and belief, Defendants intentionally and deliberately
employ Infringing Designs identical to Plaintiffs Trade Dress to mislead and confuse
consumers into believing that Defendants' goods are provided, sponsored, or approved by
Alex and Ani.
46. As a direct and proximate result of Defendants' conduct set forth above,
Alex and Ani has been irreparably injured.
4 7. Defendants' conduct is continuing and will continue, constituting an
ongoing threat to Alex and Ani and the public. Unless Defendants are restrained and
enjoined from engaging in the wrongful conduct described herein, Alex and Ani will
suffer irreparable injury. It would be difficult to ascertain the amount of compensation
that could afford Alex and Ani adequate relief for the acts of Defendants, present and
threatened, and Plaintiffs remedy at law is not adequate in and of itself to compensate it
for said harm and damage.
48. Alex and Ani has extensively and continuously promoted and used the
Trade Dress and its associated goodwill throughout the United States and world, and the
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i
I .
I.
Trade Dress has thereby become a famous and well-known indicator of the origin of the
Alex and Ani goods and has achieved significant secondary meaning.
THE PATENT
49. To further protect her invention, Ms. Rafaelian applied for and received
United States Letters Patent No. D498,167 entitled "Expandable Wire Bracelet" (the
'" 167 Patent").
50. The '167 Patent was duly and legally issued by the United States Patent
and Trademark Office on November 9, 2004 to Carolyn Rafaelian, who has assigned all
right, title, and interest in the patent to Alex and Ani.
51. A true and correct copy of the '167 Patent is attached hereto as Exhibit C.
52. Less than one year before Defendants began knocking off Plaintiffs
patented bangles, Defendants ordered a quantity of the bangles and associated charms
through an intem1ediary. Defendants then began to willfully and deliberately copy the
Plaintiff's patented design.
FIRST CLAIM FOR RELIEF
WILLFUL INFRINGEMENT OF U.S. PATENT NO. D498,167
(35 u.s.c. 271)
53. Plaintiff repeats and realleges all of the preceding paragraphs as if stated at
length herein.
54. In violation of35 U.S.C. 271(a), the Defendants have made, used,
offered for sale, distributed, imported, and/or sold in the United States, expandable
bangle bracelets that infringe the '167 Patent.
55. In violation of35 U.S.C. 271(b) and (c), the Defendants have actively
induced the infringement of, and/or contributed to the infringement of the '167 Patent.
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I .
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56. The infringement of the '167 Patent by the Defendants has occuned with
knowledge of the '167 Patent and has been willful and wanton.
57. Plaintiffhas been infonned that Defendants ordered Plaintiff's products
for the sole purpose of knocking them off.
58. Alex and Ani has suffered and will continue to suffer serious and
inepmable injury unless the Defendants' infringement ofthe '167 Patent is enjoined.
59. Plaintiff is entitled to damages adequate to compensate for the
Defendants' infringement of the '167 Patent in an amOlmt to be determined at trial, but in
no event less than a reasonable royalty, treble damages, interest, attomeys' fees and the
costs incurred in this action;
SECOND CLAIM FOR RELIEF
FEDERAL TRADE DRESS INFRINGEMENT
(15 U.S.C. 1125(a))
60. Alex and Ani incorporates by reference each and every allegation in the
preceding paragraphs, as if set forth in full herein.
61. Upon information and belief, commencing at some time tmknown to
Plaintiff Alex and Ani and continuing to the present, Defendants manufactured,
advertised, offered for sale and have engaged in the sale, resale and distribution of
Infringing Goods bearing an Infringing Designs without Plaintiff's consent, and thereby
infringing the Alex and Ani Trade Dress.
62. The labels of Defendants' Infringing Design bem a striking resemblance
to, and me a blatant and obvious imitation of, the Alex and Ani Trade Dress featured on
genuine Alex and Ani products.
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63. The Alex and Ani Trade Dress and the Infringing Designs of the
Infringing Goods create the same general overall impression and have the same "look and
feel" as genuine Alex and Ani products. Upon information and belief, the similarities
between the Alex and Ani Trade Dress and the Infringing Designs of the Infringing
Goods are not a mere coincidence.
64. Defendants' Infringing Goods were designed intentionally to mimic the
Alex and Ani Trade Dress in that the designs of the jewelry goods are exactly the same,
having identical designs and distinctive arrangement of design elements. This creates the
itmnediate commercial impression that goods bearing such designs are associated with
and emanate from Alex and Ani.
65. Defendants' sale of its Infringing Goods in the United States constitutes a
false designation of origin and is intentionally designed to deceive, and has deceived,
customers into believing that the Infringing Goods are genuine goods of Alex and Ani.
66. Defendants have without permission, willfully, and with the intention of
benefiting from the reputation and goodwill of Plaintiff Alex and Ani, imitated the
design, style, and layout of the Alex and Ani Trade Dress.
67. As a consequence, the Infringing Designs on the Infringing Goods are
likely to deceive and divert, and have deceived and diverted, customers away from the
competing genuine Alex and Ani products and create a likelihood of consumer confusion
as to the source of the Alex and Ani products and the Infringing Goods.
68. Defendants' conduct, as alleged in the foregoing paragraphs, constitutes
trade dress infringement in violation of Section 43(a) of the Lanham Act, 15 U.S. C.
1125(a), which prohibits the use in commerce in connection with the sale of goods of
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any word, term, name, symbol, or device, or any combination thereof which is likely to
cause conf-usion, or to cause mistake, or to deceive as to the source of the goods.
69. Without injunctive relief, Alex and Ani has no means by which to control
the continuing injury to its reputation and goodwill. Alex and Ani has been and will
continue to be ineparably harmed. No amount of money damages can adequately
compensate Alex and Ani if it loses the ability to control the use of its Trade Dress,
reputation, and goodwill though the false and unauthorized use of its Trade Dress. Alex
and Ani is entitled to monetary damages and injtmctive relief prohibiting Defendants
from using the Infringing Design, or any other trademark or designation which is likely to
be confused with the Alex and Ani Trade Dress.
70. Because Defendants' actions have been committed willfully and with
intent to profit from Plaintiffs goodwill in the Alex and Ani Trade Dress, tlris is an
exceptional case and Alex and Alri is entitled to recover Defendants' profits together with
Alex and Ani's damages, trebled, costs of the action, and reasonable attorneys' fees
pursuant to Section35(a) of the Lanhan1 Act, 15 U.S.C. 1125(a).
THIRD CLAIM FOR RELIEF
FEDERAL UNFAIR COMPETITION
(15 U.S.C. 1125(a))
71. Alex and Ani incorporates by reference each and every allegation in the
preceding paragraphs, as if set fmih in full herein.
72. Defendants' use of the Infringing Designs, a mark identical and
confusingly similar to the Alex and Ani Trade Dress, in a similar manner in connection
with identical and highly related goods constitutes unfair competition in violation of
Section43 of the Lanham Act, 15 U.S.C. 1125(a).
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73. As a direct m1d proximate result of the willf-ul and won ton acts and
conduct of Defendants, Alex and Ani has been injured m1d will continue to suffer
ineparable injury to its business and reputation unless Defendm1ts are restrained by the
Court from unfairly competing with Alex and Ani. No m110Unt of money danmges cm1
adequately compensate Alex and Ani. Without injunctive relief, Alex and Ani has no
means by which to control the continuing injury to its reputation and goodwill.
74. Because Defendm1ts' actions have been committed willfully and with
intent to profit from Plaintiffs goodwill in the Trade Dress, this is an exceptional case
and Alex m1d Ani is entitled to recover Defendm1t' s profits together with Alex and Ani's
dmnages, trebled, costs of the action, and reasonable attomeys' fees pursum1t to section
35(a) of the Lmlhmn Act, 15 U.S.C. 1125(a).
FOURTH CLAIM FOR RELIEF
COMMON LAW UNFAIR COMPETITION
75. The Plaintiffrealleges and incorporates by tllis reference, each and every
allegation set forth in the previous paragraphs.
76. The acts and conduct of Defendants alleged in this Complaint constitute
unfair competition under the common law of this state.
77. The Plaintiff is infonned and believes and on that basis alleges that
Defendm1ts have cmnmitted the acts alleged with previous knowledge of Plaintiffs prior
use and superior rights to its Trade Dress in the U1lited States and tllis State. Further,
Defendants' actions were for the willful and calculated purpose of trading upon the
Plaintiff's goodwill and for the willful and calculated purpose of selling Defendm1ts'
infringing products based upon the goodwill of Plaintiff's Trade Dress m1d business
reputation so as to nlislead and deceive purchasers and the public. Defendants' actions
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are likely to cause conf-usion and mistake among purchasers and the public as to the
origin, quality or affiliation, connection or association of the infringing products, all to
Defendants' gain and the Plaintiff's damage.
78. Defendants' conduct as alleged above has damaged and continues to
damage the Plaintiff's goodwill and reputation and has resulted in a loss of profits to the
Plaintiff in an amount which is tmknown at present time.
FIFTH CLAIM FOR RELIEF
DILUTION
(Under Section 360-L of the N.Y. Gen. Bus. Law)
79. The Plaintiff realleges and incorporates by this reference, each and every
allegation set forth in the previous paragraphs.
80. Defendants' acts and conduct as previously alleged in this Complaint
constitute dilution of the distinctive qualities of Plaintiff's trademark within the meaning
ofNew York's Anti-Dilution Statute, N.Y. Gen. Bus. Law Section 360-L, in that said use
causes likelihood of confusion or of misunderstanding as to the source, sponsorship or
approval ofDefendants' products and will likely cause a blurring of the distinctive source
identification quality of Plaintiff's trademark in the United States.
81. Unless this Court enjoins Defendants, tmder the provisions ofN. Y. Gen.
Bus. Law Section 360-L, Defendants will continue to engage in activities which dilute
the distinctive quality of Plaintiff's trademark thereby deceiving the purchasing public
and causing Plaintiff's immediate irreparable damage and injury for which it has no
adequate remedy at law.
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PRAYER FOR RELIEli'
WHEREFORE, Plaintiff Alex and Ani prays for judgment against Defendants,
jointly and severally, as follows:
AS TO THE FIRST CLAIM FOR RELIEF
A. A judgment that the Defendants have infringed the '167 Patent in
violation of35 U.S.C. 271(a), (b), and/or (c);
B. A judgment that the Defendants' infringement of the '167 Patent has been
willful and wanton;
C. A pem1anent injunction, pursuant to 35 U.S.C. 283, enjoining the
Defendants, and all persons in active concert or pariicipation with the Defendants, from
any fmiher acts of infringement, inducement of infringement, or contributory
infringement of the '167 Patent;
D. An order, pursuant to 35 U.S.C. 284, awar-ding Plaintiff damages
adequate to compensate for the Defendants' infringement of the '167 Patent, in an
amount to be detem1ined at trial, but in no event less than a reasonable royalty;
E. An order, pursuant to 35 U.S.C. 284, and based on the Defendants'
willful and wanton infringement of the '167 Patent, trebling all damages awar-ded to
Plaintiff;
F. An order, pursuant to 35 U.S.C. 284, awar-ding Plaintiff interest on the
darnages and its costs incurred in this action;
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G. An order, pursuant to 35 U.S. C. 285, finding that this is an exceptional
case and awarding to Plaintiff its reasonable attorneys' fees and costs incmred in tllis
action;
AS TO THE SECOND CLAIM FOR RELIEF
H. An order awarding Plaintiff such damages as it has sustained or will
sustain by reason ofDefendants' Trade Dress infringement;
I. An order awarding Plaintiff all gains, profits, property, and advantages
derived by Defendants from such conduct, and, pursuant to 15 U.S.C. 1117, awarding
Plaintiff an amount up to three times the an1ount of the actual damages sustained as a
result of Defendants' violation of the Lanhan1 Act;
J. An order awarding Plaintiff exemplary and punitive dan1ages to deter any
future willful infringement as the CoUii finds appropriate;
K. An order awarding Plaintiff its costs and disbursements incurred in tllis
action, including its reasonable attorneys' fees, as provided by 15 U.S.C. 1117;
L. An order awarding Plaintiff interest, including pre-judgment interest, on
the foregoing smn;
M. An order pe1manently enjoining Defendants and all their agents, officers,
employees, representatives, successors, assigns, attorneys, and all other persons acting
for, with, by, through, or under authority from Defendants, or in concert or pa1iicipation
with Defendants, from:
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1. using the trade dress, or any other copy, reproduction, or colorable
imitation or simulation of Plaintiffs Trade Dress on or in connection
with Defendants' goods or services;
2. using any trademark, service mark, name, logo, design or source
designation of any kind on or in cmmection with Defendants' goods or
services that is a copy, reproduction, colorable imitation, or simulation
of, or conf-usingly similar to, or in any way similar to the trademarks,
service marks, names, or logos of Plaintiff;
3. using any trademark, service mark, name, logo, design or source
designation of any kind on or in cmmection with Defendants' goods or
services that is likely to cause confusion, mistake, deception, or public
misunderstanding that such goods or services are produced or provided
by Plaintiff, or are sponsored or authorized by or in any way connected
or related to Plaintiff;
4. passing off, palming off, or assisting in passing off or palming off,
Defendants' goods or services as those of Plaintiff, or otherwise
continuing any and all acts of unfair competition as alleged in this
Complaint;
N. An order requiring Defendants to recall all products bearing the Trade
Dress or any other confusingly similar mark, which have been shipped by Defendants or
under its authority, to any customer including, but not limited to, any wholesaler,
distributor, retailer, consignor, or marketer and also to deliver to each customer a copy of
tllis Court's order as it relates to said injtmctive relief against Defendants;
0. An order requiring Defendants to deliver up for impoundment and for
destruction all bangles, tags, signs, packages, receptacles, advertising, sample books,
promotional material, stationery or other materials in the possession, custody, or under
the control of Defendants that are found to adopt or to infringe any of Plaintiffs
trademarks or trade dress or that otherwise unfairly compete with Plaintiff and their
products and services; Defendants be compelled to accmmt to Plaintiff for any and all
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profits derived by Defendants from the sale or distribution of infringing goods as
described in this Complaint;
AS TO THE THIRD AND FOURTH CLAIMS FOR RELIEF
P. To enter a judgment that Defendants have engaged in tmfair competition;
Q. To award Plaintiff exemplary and punitive damages to deter any future
willful infringement as the Court finds appropriate;
R. To award Plaintiff interest, including pre-judgment interest, on the
foregoing sum;
S. To enter an order pem1anently enjoining and restraining Defendants and
its parents, subsidiaries, divisions, agents, dealers, officers, employees, successors, and
assigns, and all other acting in concert or participation with Defendants, from:
1. engaging in any activity constituting unfair competition with
Plaintiff; and
2. aiding, assisting, or abetting any other party in doing any act
prohibited by sub-paragraph (1 );
T. To direct Defendants to deliver up for impoundment and for destruction
all bangles, tags, signs, packages, receptacles, advertising, sample books, promotional
material, stationery or other materials in the possession, custody, or under the control of
Defendants incorporating or bearing simulations, variations, or colorable imitations of
Plaintiffs Trade Dress used alone or in combination with other words or designs; and
U. That Defendants be ordered to pay Alex and Ani pre-judgn1ent interest on
any monetary award;
AS TO THE FIFTH CLAIM FOR RELIEF
V. That Defendants be enjoined from the manufacture, use, display or sale of
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Case 1:12-cv-07887-AJN Document 3-1 Filed 11/05/12 Page 1 of 20
any counterfeits or imitations thereof;
W. That Defendants be required to pay to Plaintiff all profits derived from
and/or all damages suffered by reason of Defendants' wrongful manufacture, use, display
or sale;
X. An Order commanding that any cotmterfeits or imitations in the
possession or m1der the control of Defendants be delivered to an officer of the Comi or to
Plaintiff to be destroyed;
Y. An Order entering judgment for an an1otmt three times the ammmt of
Defendants' profits and damages, including all of Plaintiff's reasonable attorneys' fees;
and
Z. Such further relief as the Court deems just, proper and equitable.
DEMAND FOR JURY TRIAL
Pursuant to Fed. R. Civ. P. 38(b), Plaintiff Alex and Ani hereby demands a trial of
this dispute by a jury.
Dated: New York, New York
November 5, 2012
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Respectfully submitted,
GARB7;;;TZGERALD PC
B y : ~ k - ~
Richard M. Garbarini
420 Lexington Ave, Suite 2743
New York, New York
Phone: 212.300.5358
Fax: 888.265.7054
Attorneys for Plaintiff
EXHIBIT A
Bella Ryann Catalogue
Item# 10745 Initial Bracelet Asst. 2ea. Silver, lea. Gold, lea. Display $448.00
Item# 10746 Zodiac Bracelete Asst. 2ea. Silver, lea. Gold, lea. Display $226.00
Item# 10747 Word Bracelet Asst. 2 ea. Silver, lea. Gold, lea. Display $172.00
Item# 10748 Birth .. Bracelet .Asst. 2ea. Silver, lea. Gold, lea. Display $226.00
Item# 10749 Nautical Bracelet Asst. 2ea. Silver, lea. Gold, lea. Display $244.00
Item# 10750 General Bracelet Asst. 2ea. Silver, lea. Gold, lea. Display $226.00
Item# 10740 Zodiac Necklace Asst. 2ea. Silver, lea. Gold, w/Display $226.00
Item# 10742 Birthstone Necklace Asst. 2ea. Silver, lea. Gold, w/Display $226.00
Item# 10739 Initial Necklace Asst. 2ea. Silver, lea. Gold, w/Display $448.00
picture coming soon
Item# 10741 Word Necklace Asst. 2ea. Silver, lea. Gold, w/Display $172.00
picture coming soon
Item# 10743 Nautical Necklace Asst. 2ea. Silver, lea. Gold, w/Display $244.00
picture coming soon
Item# 10744 General Necklace Asst. 2ea. Silver, lea. Gold, w/Display $226.00
picture coming soon
EXHIBII'B
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EXHIBITC
U.S. Patent No. D498,167
111111111111111111111111111111111111111111111111111111111111111111111111111

(12) United States Design Patent (Io) Patent No.: US D498,167 S
** Nov. 9, 2004 .Fcrlisc (45) Date of Patent:
(54) Exl>ANOAfiLE WTRE BRACELET
(7li) lnvcmor: Cumlyn Rafut'linn Fl'.disl', 41
Highgntc Rd., Crnnston, RT (US) 02920
(*"') Tc.:rm: 14 Years
(?.1) AppL Nn.: 29(194,0$3
(22) fik.tl: Nov. 19, 2003
Related IJ.S. Applk:ation nata
(62) Division of application No. 2'J;1Hl,S44, filed on Mny 11),
2003, now Pnt. Nn. /)c;. 4fi7;70').
(51) LOC (7) CJ ..................................................... 11-01
(52) U.S. Cl. .......................................................... D1U5
(SR) of Search .......................... n1 l/H 5, 1R-20,
D 11/22-2.5, <.!3; 5<.!/79.1, 79.3, 71\, K3; 63!3-4,
9, 2"1, 38
(Sti) References CitL'<I
U.S. PATENT DOCUMENTS
4?,q;n9 ;\ + S/1 1\90 !Townrd ......................... fi.Vll
D69.012 S l2i1925 Dulin .......................... Dll;::\1)
D247,l02 S 1/1978 Durunk ........................ Dll/5
5,247:.Bl4 A Wl!J'l3 l'vlcl:h1nnld .................... <i3/3.2
, -...
0471,177 S 3i2ULB Dlli4
+ by
I'1imarr S. Z:nf:1s
}.).mniner-Jdm Wimlmulkr
(74) Attorney, Agent, or Fit111-!.inda M. Huck1cy;
ChtU;iioe- C. O'Day; Edwards & Angdl, LU'
(57) ClAIM
The omamcntn.! design for an expandable wire bracelet, ns
&hown and tlesnibell.
DESCRUYfiON
[-if(i. 1 is a pcrspccJ.ive view of ,111 ex-pandable wire hracclc.r,
showiug my design;
HG. 1 is a top plan view there-of;
l'TG. 3 is a bottom view thereof:;
J<!(i. 4 i1: a left side vtcw thereof;
l'TG. 5 is a riglll side view lhereol';
HC.i. 6 is view thereof; nnd,
HG. 7 is '' from vit.w !hereof.
The subjcd m<tltcr tlcpickd in dashed lines in fiGS. 1-7 is
shown for illustrative purposes only and forms no part of tho
claimed dcsi!,'ll.
1 Chlim, 7 Drawing Sheets
U.S. Patent Nov. 9, 2004 Sheet 1 of 7 US D498,167 S
FIG. I
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US D498,167 S
U.S. Patent
.Nov. 9, 2004
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FIG. 6
U.S. Patent
Nov. 9, 2004
Sheet 7 of 7
US D498,167 S
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