Case 1:16-cv-07063 Document 1 Filed 09/09/16 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK
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SILVER SPOONS AND MORE LLC,
)
)
Plaintiff,
)
)
v.
)
)
GOVINO, LLC,
)
)
Defendant.
)
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Civil Action No.

COMPLAINT FOR
DECLARATORY JUDGMENT
OF PATENT AND TRADE DRESS
INVALIDITY AND
NON-INFRINGEMENT

Plaintiff, Silver Spoons and More LLC (SSM), for its Complaint against Defendant
govino, LLC (govino), alleges as follows:
THE PARTIES
1.

SSM is a New Jersey limited liability company with a place of business at 3001
Woodbridge Avenue, Edison, New Jersey 08837.

2.

Upon Information and belief, govino is a Delaware corporation with a place of

business at 1234 Adams Street, St. Helena, CA 94574.
JURISDICTION AND VENUE

3.

This action arises under the Patent Act of 1952, 35 U.S.C. 1 et seq., and under
the Declaratory Judgment Act, 28 U.S.C. 2201, et seq. This Court has subject
matter jurisdiction to hear this action under 28 U.S.C. 1331, 1338(a), 2201, and
2202 based on an actual controversy between SSM and govino, created at least by
the April 22, 2016, cease and desist letter sent by govino to SSMs customer, At
Home Group Inc. (AHG).

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4.

Upon information and belief, govino is currently doing business in this judicial
district, has purposefully availed itself of the privilege of conducting business with
residents of this judicial district and/or has established sufficient minimum contacts
with New York such that govino should reasonably and fairly anticipate being haled
into court in New York.

5.

Venue is proper in this judicial district at least under 28 U.S.C. 1391 and
1400(b).
BACKGROUND

6.

The law firm Lowry Blixseth LLP, on behalf of its client, govino, sent a cease and
desist letter dated April 22, 2016, to SSMs customer, AHG.

7.

The April 22, 2016, cease and desist letter alleged that certain SSM stemless wine
glasses sold by AHG (SSM Stemless Wine Glasses) infringe U.S. Patent Nos.
D577,547 (the 547 patent, attached hereto as Exhibit A), D646,926 (the 926
patent, attached hereto as Exhibit B), 8,875,935 (the 935 patent, attached hereto
as Exhibit C) and 9,089,233 (the 233 patent, attached hereto as Exhibit D, and
collectively with the 547, 926 and 935 patents, the govino patents), and trade
dress rights associated with govinos stemless wine glasses (govino Trade Dress).

8.

The face of the 547 patent states that it issued on September 30, 2008. Upon
information and belief, and based on allegations in govinos April 22, 2016, cease
and desist letter, govino is the current owner of the 547 patent.

9.

The face of the 926 patent states that it issued on October 18, 2011. Upon
information and belief, and based on allegations in govinos April 22, 2016, cease
and desist letter, govino is the current owner of the 926 patent.

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10.

The face of the 935 patent states that it issued on November 4, 2014. Upon
information and belief, and based on allegations in govinos April 22, 2016, cease
and desist letter, govino is the current owner of the 935 patent.

11.

The face of the 233 patent states that it issued on July 28, 2015. Upon information
and belief, and based on allegations in govinos April 22, 2016, cease and desist
letter, govino is the current owner of the 233 patent.

12.

Based on govinos allegations in the April 22, 2016, cease and desist letter, there is
now an actual and justiciable controversy between SSM and govino regarding, inter
alia, the validity and infringement of the govino patents and govino Trade Dress
that is of sufficient immediacy and reality to warrant the issuance of a Declaratory
Judgment.
FIRST COUNT

(DECLARATORY JUDGMENT OF NON-INFRINGEMENT OF THE 547 PATENT)

13.

SSM repeats and realleges each of the foregoing paragraphs of this Complaint.

14.

The use, manufacture, offer for sale, sale, and/or importation of SSM Stemless
Wine Glasses by SSM or SSMs customers, including AHG, will not infringe,
directly or indirectly, the 547 patent claim.

15.

Neither SSM nor SSMs customers has directly or indirectly infringed, nor will they
directly or indirectly infringe, the 547 patent claim.

16.

Inasmuch as neither SSM nor SSMs customers has infringed nor will infringe the
547 patent claim, SSM is entitled to a declaration that govino has no claim for
damages or other relief from or against SSM or SSMs customers for any alleged
infringement of the 547 patent.

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SECOND COUNT
(DECLARATORY JUDGMENT OF INVALIDITY OF THE 547 PATENT)
17.

SSM repeats and realleges each of the foregoing paragraphs of this Complaint.

18.

The 547 patent claim is invalid under one or more provisions of 35 U.S.C. 101,
et seq. including, inter alia, 102, 103 and/or 112.

19.

Inasmuch as the 547 patent claim is invalid, SSM is entitled to a declaration that
the 547 patent claim is invalid and that govino has no claim for damages or other
relief from or against SSM or SSMs customers for any alleged infringement of the
547 patent.
THIRD COUNT

(DECLARATORY JUDGMENT OF NON-INFRINGEMENT OF THE 926 PATENT)

20.

SSM repeats and realleges each of the foregoing paragraphs of this Complaint.

21.

The use, manufacture, offer for sale, sale, and/or importation of SSM Stemless
Wine Glasses by SSM or SSMs customers, including AHG, will not infringe,
directly or indirectly, the 926 patent claim.

22.

Neither SSM nor SSMs customers has directly or indirectly infringed, nor will they
directly or indirectly infringe, the 926 patent claim.

23.

Inasmuch as neither SSM nor SSMs customers has infringed nor will infringe the
926 patent claim, SSM is entitled to a declaration that govino has no claim for
damages or other relief from or against SSM or SSMs customers for any alleged
infringement of the 926 patent.

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FOURTH COUNT
(DECLARATORY JUDGMENT OF INVALIDITY OF THE 926 PATENT)
24.

SSM repeats and realleges each of the foregoing paragraphs of this Complaint.

25.

The 926 patent claim is invalid under one or more provisions of 35 U.S.C. 101,
et seq. including, inter alia, 102, 103 and/or 112.

26.

Inasmuch as the 926 patent claim is invalid, SSM is entitled to a declaration that
the 926 patent claim is invalid and that govino has no claim for damages or other
relief from or against SSM or SSMs customers for any alleged infringement of the
926 patent.
FIFTH COUNT

(DECLARATORY JUDGMENT OF NON-INFRINGEMENT OF THE 935 PATENT)

27.

SSM repeats and realleges each of the foregoing paragraphs of this Complaint.

28.

The use, manufacture, offer for sale, sale, and/or importation of SSM Stemless
Wine Glasses by SSM or SSMs customers, including AHG, will not infringe,
directly or indirectly, any valid and enforceable claim of the 935 patent.

29.

Neither SSM nor SSMs customers has directly or indirectly infringed, nor will they
directly or indirectly infringe, any valid claim of the 935 patent.

30.

Inasmuch as neither SSM nor SSMs customers has infringed nor will infringe any
valid and enforceable claim of the 935 patent, SSM is entitled to a declaration that
govino has no claim for damages or other relief from or against SSM or SSMs
customers for any alleged infringement of the 935 patent.

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SIXTH COUNT
(DECLARATORY JUDGMENT OF INVALIDITY OF THE 935 PATENT)
31.

SSM repeats and realleges each of the foregoing paragraphs of this Complaint.

32.

One or more of claims 1-36 of the 935 patent are invalid under one or more
provisions of 35 U.S.C. 101, et seq. including, inter alia, 102, 103 and/or 112.

33.

Inasmuch as one or more of claims 1-36 of the 935 patent are invalid, SSM is
entitled to a declaration that the 935 patent claims are invalid and that govino has
no claim for damages or other relief from or against SSM or SSMs customers for
any alleged infringement of the 935 patent.
SEVENTH COUNT

(DECLARATORY JUDGMENT OF NON-INFRINGEMENT OF THE 233 PATENT)

34.

SSM repeats and realleges each of the foregoing paragraphs of this Complaint.

35.

The use, manufacture, offer for sale, sale, and/or importation of SSM Stemless
Wine Glasses by SSM or SSMs customers, including AHG, will not infringe,
directly or indirectly, any valid and enforceable claim of the 233 patent.

36.

Neither SSM nor SSMs customers has directly or indirectly infringed, nor will they
directly or indirectly infringe, any valid claim of the 233 patent.

37.

Inasmuch as neither SSM nor SSMs customers has infringed nor will infringe any
valid and enforceable claim of the 233 patent, SSM is entitled to a declaration that
govino has no claim for damages or other relief from or against SSM or SSMs
customers for any alleged infringement of the 233 patent.

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EIGHTH COUNT
(DECLARATORY JUDGMENT OF INVALIDITY OF THE 233 PATENT)
38.

SSM repeats and realleges each of the foregoing paragraphs of this Complaint.

39.

One or more of claims 1-19 of the 233 patent are invalid under one or more
provisions of 35 U.S.C. 101, et seq. including, inter alia, 102, 103 and/or 112.

40.

Inasmuch as one or more of claims 1-19 of the 233 patent are invalid, SSM is
entitled to a declaration that the 233 patent claims are invalid and that govino has
no claim for damages or other relief from or against SSM or SSMs customers for
any alleged infringement of the 233 patent.
NINTH COUNT
(DECLARATORY JUDGMENT OF NON-INFRINGEMENT OF
GOVINO TRADE DRESS)

41.

SSM repeats and realleges each of the foregoing paragraphs of this Complaint.

42.

The use, manufacture, offer for sale, sale, and/or importation of SSM Stemless
Wine Glasses by SSM or SSMs customers, including AHG, will not infringe any
valid and enforceable govino Trade Dress.

43.

Inasmuch as neither SSM nor SSMs customers has infringed nor will infringe any
valid and enforceable govino Trade Dress, SSM is entitled to a declaration that
govino has no claim for damages or other relief from or against SSM or SSMs
customers for any alleged infringement of the govino Trade Dress.
TENTH COUNT

(DECLARATORY JUDGMENT OF INVALIDITY OF THE GOVINO TRADE DRESS)

44.

SSM repeats and realleges each of the foregoing paragraphs of this Complaint.

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45.

govino does not have valid and enforceable trade dress rights in the govino Trade
Dress, at least because the govino Trade Dress has not attained a secondary
meaning.

46.

Inasmuch as govino does not have valid and enforceable trade dress rights in the
govino Trade Dress, SSM is entitled to a declaration that govino does not have valid
and enforceable trade dress rights in the govino Trade Dress and that govino has no
claim for damages or other relief from or against SSM or SSMs customers for any
alleged infringement of the govino Trade Dress.
SSMS REQUEST FOR RELIEF

WHEREFORE, SSM respectfully requests that this Court enter judgment in SSMs favor
and against Defendant govino as follows:
A.

Declaring that neither SSM nor SSMs customers has infringed nor will infringe
the 547 patent claim by making, using, offering for sale, selling or importing the
SSM Stemless Wine Glasses;

B.

Declaring the 547 patent claim invalid;

C.

Declaring that neither SSM nor SSMs customers has infringed nor will infringe
the 926 patent claim by making, using, offering for sale, selling or importing the
SSM Stemless Wine Glasses;

D.

Declaring the 926 patent claim invalid;

E.

Declaring that neither SSM nor SSMs customers has infringed nor will infringe
any valid claim of the 935 patent by making, using, offering for sale, selling or
importing the SSM Stemless Wine Glasses;

F.

Declaring the claims of the 935 patent invalid;

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G.

Declaring that neither SSM nor SSMs customers has infringed nor will infringe
any valid claim of the 233 patent by making, using, offering for sale, selling or
importing the SSM Stemless Wine Glasses;

H.

Declaring the claims of the 233 patent invalid;

I.

Declaring that neither SSM nor SSMs customers has infringed nor will infringe
the govino Trade Dress by making, using, offering for sale, selling or importing
the SSM Stemless Wine Glasses;

J.

Declaring that govino does not have valid and enforceable trade dress rights in the
govino Trade Dress;

K.

Declaring this case exceptional and awarding SSM its reasonable attorneys fees
and expenses under 35 U.S.C. 285;

L.

Awarding SSM its costs and expenses; and

M.

Awarding SSM such other and further relief as the Court deems just and proper.

Respectfully submitted,
Dated: September 9, 2016

COZEN OCONNOR
By: /s/ Martin B. Pavane
Martin B. Pavane
Darren Mogil
277 Park Avenue
New York, NY 10172
Telephone: (212) 883-4900
Facsimile: (212) 986-0604
mpavane@cozen.com
dmogil@cozen.com
Attorneys for Silver Spoons and More LLC

27989536v1

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EXHIBIT A

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EXHIBIT B

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EXHIBIT C

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EXHIBIT D

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