Flickable v. Factum Partners - Complaint

Case 7:17-cv-05273 Document 1 Filed 07/12/17 Page 1 of 34
Martin B. Pavane (MP4871)

Marilyn Neiman (MN6194)
COZEN OCONNOR
277 Park Avenue
New York, New York 10172
Tel. (212) 883-4900
Fax: (212) 986-0604
Email: mpavane@cozen.com, mneiman@cozen.com
Attorneys for Plaintiff Flickable LLC.
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
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FLICKABLE LLC,
Plaintiff, Civil Action No. ________
v. COMPLAINT WITH
JURY DEMAND
FACTUM PARTNERS INC. and TOM GREENWOOD,
Defendants.
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For its Complaint, plaintiff, Flickable LLC (Flickable or Plaintiff), by and through its
attorneys, Cozen OConnor, alleges as follows:
PARTIES
1. Flickable is a Delaware limited liability company with a principal place of business
at 39 Morningside Drive, Ossining, New York 10562. At the time of filing this Complaint,
Flickables membership consists of four individuals: two reside in Ossining, New York and two
reside in Los Angeles, CA.
2. Upon information and belief, defendant Factum Partners, Inc. (Factum) is a
Canadian corporation having a principal address at 1155 North Service Road, West Suite 11,
Oakville, Ontario, Canada, L6m 3E3.

3. Factum also maintains a place of business at 5600 N. River Road, Suite 800,
Rosemont, Illinois 60018.
4. Factum owns and operates a website at the domain name
www.factumpartnersinc.com, which identifies the above Canadian and U.S. addresses. Factums
letterhead also identifies these business addresses.
5. Upon information and belief, Defendant Tom Greenwood (Greenwood)
(collectively with Factum, the Defendants) is an individual principally residing in Ontario,
Canada.
JURISDICTION AND VENUE
6. This is an action for: breach of contract; infringement of federally registered trade
dress under 15 U.S.C. 1114; contributory infringement of federally registered trade dress under
15 U.S.C. 1114; patent infringement under 35 U.S.C. 101 et. seq.; induced patent infringement
under 35 U.S.C. 271(b); trade secret misappropriation under the common law of the State of
New York; trade secret misappropriation under the Defend Trade Secrets Act of 2016, 18 U.S.C.
1836(b); and violation of New Yorks General Business Law 349.
7. This Court has subject matter jurisdiction over this action under 28 U.S.C. 1331,
1332, 1338(a), 1338(b), and 1367, as well as 18 U.S.C. 1836(c).
8. Venue is proper in this Court under 28 U.S.C. 1391(b)(2) in that a substantial part
of the events or omissions giving rise to the claims occurred in this judicial district. Venue is also
proper in this Court under 28 U.S.C. 1391(b)(3) in that there is no other district in which this
action may be brought against Defendants, a Canadian corporation and a Canadian individual, and
Defendants are subject to this Courts personal jurisdiction with respect to this action.
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BACKGROUND
A. Flickable and Its Lollipop Lip Gloss
9. Flickable designs, manufactures, sells, and imports an award winning line of lip
gloss sold under the mark FLICKABLE and packaged in a unique, distinctive, and patented
lollipop-shaped packaging.
10. Flickable advertises, promotes, and sells its lip gloss throughout the world,
including to consumers within this district, by and through its website operating at the domain
name www.flickable.com, as well as through authorized distributors and at major international
cosmetic conventions, such as Cosmoprof.
11. Flickable offers its lip gloss in five (5) distinct flavors: Fight for Your White to
Party, Do Ya Pink Im Sexy? Better of Red, Citrus How We Do It, and Toffee Talk.
12. Flickables award winning lollipop packaging for its lip gloss is innovative,
distinctive, and easily recognizable by consumers throughout the world.
13. In 2014, Flickable received the Outstanding Packaging Design Award at the HBA
Global International Package Design Awards (IPDA) in New York.
14. Flickable also received significant press recognition for its lip gloss which was a
featured product included in the 2015 Academy Award gift bags.
15. Flickables lip gloss is also regularly featured in other cosmetic industry media
including periodicals, blogs, and other publications.
16. Flickables lollipop-shaped packaging is embodied in the claimed designs of United
States Design Patent Nos. U.S. D712,595 (the 595 Patent) and U.S. D740,493 (the 493
Patent) (collectively, the Flickable Patents), copies of which are included herewith as Exhibit
A.
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17. Kevin David, a co-founder of Flickable and its current Director of Sales and
Marketing, is the sole inventor of the patented designs embodied in the Flickable Patents.
18. Mr. David has assigned all of his rights, title, and interest in the Flickable Patents
to Flickable.
19. Flickable is the sole and rightful owner of all rights, title, and interest in the
Flickable Patents.
20. Flickables unique and distinctive lollipop-shaped packaging is protected as trade
dress under United States law (the Flickable Trade Dress).
21. Flickable registered the Flickable Trade Dress with the U.S. Patent and Trademark
Office, and owns U.S. Trademark Reg. No. 4,849,051 (the 051 Registration) for said Trade
Dress. A true and correct copy of the 051 Registration certificate is attached as Exhibit B, and a
true and correct copy of the Flickable Trade Dress is depicted below in Figure 1.
Figure 1 Flickable Trade Dress
22. The 051 Registration was granted on November 10, 2015, and is in full force and
effect.
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23. Flickable has been continuously using the Flickable Trade Dress in commerce for
its lip gloss products since at least as early as February 2, 2014.
24. Exemplary promotional materials for Flickables lip gloss products are attached
herewith as Exhibit C.
25. As a consequence of Flickables extensive promotion and advertising of the
Flickable Trade Dress, and the sale of its lip gloss products packaged in the Flickable Trade Dress,
consumers have come to associate the Flickable Trade Dress as originating with Flickable.
26. Flickable has enjoyed significant commercial success in the sale of its lip gloss in
its lollipop-shaped packaging embodying the Flickable Trade Dress.
27. Consumers of Flickables lip gloss products have come to associate Flickable and
its distinctive and highly recognizable packaging as the source of exceptionally high quality goods.
28. Flickable proudly promotes its lip gloss products as gluten-free and cruelty
free, and employs the internationally recognized leaping bunny logo guaranteeing consumers
that no animal tests were used in the development of the products.
29. The leaping bunny logo is licensed exclusively by the Coalition for Consumer
Information on Cosmetics (CCIC), and Flickable obtained a license from the organization People
for the Ethical Treatment of Animals (PETA), a member of CCIC, after demonstrating that its high
quality products were cruelty free.
B. Flickables Disclosure of Confidential Material to Defendants
30. Upon information and belief, Defendant Factum is a Canadian corporation in the
business of sales development, business improvement, and other related business consulting
services.
31. Defendant Tom Greenwood is, upon information and belief, the founder and
president of Factum, and resides in Ontario, Canada, where Factum is headquartered.

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32. Upon information and belief, Factum maintains a fully functional United States
office having a business address in Rosemont, Illinois, but, upon information and belief, Factum
is not registered to do business in the state of Illinois.
33. Upon information and belief, Factums Vice President USA, James Gillette, is an
Illinois resident.
34. Although, as of May 2016, Flickable had been commercially successful and had
received widespread industry praise and recognition for its lip gloss products and its innovative
and distinctive lollipop-shaped packaging, Flickable aspired to reduce its manufacturing costs and
increase its manufacturing capacity while maintaining its high quality, cruelty free, and vegan free
products.
35. On or about May 2016, Kevin David of Flickable first met Defendant Tom
Greenwood at which time they discussed the possibility that Mr. Greenwood, by and through
Factum, could partner with Flickable to lower Flickables manufacturing costs and increase the
production capacity for Flickables lip gloss products, and also to identify additional world-wide
distributors.
36. On or about June 3, 2016, Flickable and Factum executed a mutual nondisclosure
agreement (the NDA), which Mr. Greenwood signed on behalf of Factum. A true and correct
copy of the NDA is attached hereto as Exhibit D.
37. Over the following months, Flickables representatives had follow up meetings
with Mr. Greenwood and Mr. Gillette, and Flickable and Factum exchanged presentations and
proposals regarding a possible business partnership between the companies.
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38. Subject to certain exceptions, the NDA requires that, [a]ll Disclosed Material shall
be deemed confidential and shall be kept by the Receiving Party in strict confidence and under
appropriate safeguards. Exhibit D, 4.
39. The NDA also provides that:
If requested by the Disclosing Party, the Receiving Party (a) shall deliver to the
Disclosing Party all written or tangible material delivered to the Receiving Party by
the Disclosing Party which contains Material (including all copies thereof), and (b)
shall destroy all summaries, analyses, extracts or other reproductions in whole or
in part of such tangible material, and all documents, memorandum, notes and
writings containing or based on Disclosed Material and prepared by the Receiving
Party.
Exhibit D, 6
40. The NDA also contains a forum selection clause submitting the parties to the
personal jurisdiction of this Court. See Exhibit D, 8.
41. Other than the NDA, Defendants and Flickable did not execute any other written
agreement delineating the terms of the parties relationship.
42. Pursuant to the NDA, Flickable disclosed to Defendants confidential customer lists
and confidential manufacturing know-how, including machine tooling Flickable owned and had
used for manufacturing its lip gloss products in the United States.
43. Flickables machines, tooling, manufacturing know-how, and customer lists are
valuable, confidential information of Flickable subject to trade secret protection.
44. Defendants execution of the NDA was a critical requirement of Flickable prior to
disclosing its confidential information to Defendants.
45. In September 2016, Flickable expressed to Defendants its concern that it had not
received a single sample of the lower cost lip gloss product it was promised from Defendants.
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46. In response, Defendants insisted that Flickable representatives personally visit two
Chinese factories engaged for the manufacturing of Flickables lip gloss products in order to
review product samples.
47. Shortly thereafter, Flickable representatives visited the Chinese factories engaged
by and through Defendants and became further concerned because the samples they were shown
were of poor quality. In particular, the lip gloss product developed by Defendants lacked a critical
plumping agent and also lacked distinctive flavoring to distinguish among Flickables five lip gloss
flavors. Additionally, there were no completed samples of lollipop-shaped product packaging
available for inspection by Flickables representatives.
48. Over the ensuing months, Flickable and Defendants attempted to address the
disputes that had arisen between them concerning Defendants failure to provide the services
Flickable had expected from Defendants, but ultimately Flickable and Defendants agreed to end
their affiliation as of May 31, 2017.
49. Flickable has requested on numerous instances, in writing and orally, that
Defendants return Flickables confidential information provided pursuant to the NDA, but to date
Defendants have not returned said confidential information despite the NDAs express requirement
that Defendants do so.
C. Defendants Wanton Intellectual Property Infringement
50. On or about June 24, 2017, an individual within the cosmetics industry brought to
Flickables attention that Defendants had been promoting to Flickables customers under the name
Lolli Gloss lip gloss products with lollipop-shaped packaging identical to Flickables lollipop-
shaped packaging. A true and correct copy of Mr. Greenwoods communications to Flickables
customers, dated June 17, 2017, June 19, 2017, and June 21, 2017, are attached herewith as Exhibit
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E (partially redacted to maintain the confidentiality of the recipient who forwarded Mr.
Greenwoods communications to Flickable).
51. Pursuant to the NDA, Flickable had disclosed to Defendants Flickables valuable
customer lists, which Flickable maintained in the strictest confidence. Upon information and
belief, Defendants targeted customers on Flickables customer lists in their communications
promoting Defendants competing Lolli Gloss lip gloss products.
52. At least some of Defendants communications promoting their Lolli Gloss products
included attached .pdf brochures for the Lolli Gloss products which depicted lollipop-shaped
product packaging identical to Flickables protected lollipop-shaped packaging, thereby
misappropriating Flickables goodwill and deceiving consumers about the true owner and
originator of Flickables distinctive and award winning lollipop-shaped packaging.
53. In Defendants e-mails and Defendants brochure, Defendants further misrepresent
their product as The Original Lollipop Lip Gloss, despite their knowledge that Flickable is the
originator of the Original Lollipop Lip Gloss and with an intent to deceive the recipients of
Defendants emails and brochure.
54. A comparison of Defendants promotional literature for their Lolli Gloss
lollipop-shaped lip gloss products with Flickables website for its Flickable lollipop-shaped lip
gloss products (shown below in Figure 2 (Defendants advertising) and Figure 3 (Flickables
advertising)) shows that Defendants intentionally copied Flickables promotional material;
advertised, offered for sale, and sold their Lolli Gloss products in violation of Flickables
intellectual property rights; and traded off Flickables goodwill in Flickable lollipop-shaped lip
gloss products.
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Figure 2 Lolligloss Brochure (Exhibit E2, attachment at pg. 3)
Figure 3 Flickable Website (www.flickable.com, Exhibit C)
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55. In a further effort to deceive purchasers and potential purchasers, Defendants Lolli
Gloss promotional materials promote benefits identical to the benefits identified by Flickable for
its Flickable lip gloss products, namely, cruelty free and gluten free, and Defendants
promotional materials also include the leaping bunny logo, despite, upon information and belief,
the fact that Defendants never obtained a license to use that logo from the CCIC or its members.
56. Upon information and belief, Defendants are either producing shoddy lip gloss
products, of the same poor quality they originally attempted to dupe Flickable into accepting, or
have unlawful access to genuine Flickable lip gloss products to which they are applying the Lolli
Gloss name.
57. In a further attempt to confuse and deceive purchasers and potential purchasers,
Defendants Lolli Gloss products are sold in five flavors identical to the five flavors used by
Flickable for its Flickable lip gloss products, and with slight variations in the names of the flavors.
Defendants advertise the Lolli Gloss product flavors as Gloss Orange Tangerine Flavor, Glossy
Pink, Passion Fruit Flavor, Glossy Brown, Toffee Flavor, Glossy White, Sugar Cookie
Flavor, and Glossy Red, Mixed Berry Flavor, and Flickable advertises its lip gloss product
flavors as Citrus How We Do It, Do Ya Pink Im Sexy? Toffee Talk, Fight For Your White
to Party, and Better Off Red. Compare Figure 4 (Defendants Advertising) with Figure 5
(Plaintiffs Advertising), infra.
58. Reprinted below as Figure 4 (Defendants Advertising) and Figure 5 (Plaintiffs
Advertising) are examples of Defendants copying of Flickables marketing material depicting
Flickables lip gloss products.
59. Defendants are further attempting to deceive purchasers and potential purchasers
by using a font style and coloring similar to the font style and coloring in Plaintiffs marketing
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materials, and by placing a design element between Lolli and Gloss that mimics the design
element between FLICK and ABLE in Plaintiffs depiction of its mark. Compare Figure 4
(Defendants Advertising) with Figure 5 (Plaintiffs Advertising)
Figure 4 Lolli Gloss brochure (Exhibit E2attachment at pg. 6)
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Figure 5 Flickable Promotional Material
60. Defendants email communications and brochure offer Defendants Lolli Gloss
products for sale to consumers throughout the world, including the United States. Detailed pricing
structure and distributorship contract terms are provided in Defendants brochure (see Exhibit
E1and Exhibit E2, and Defendants communications indicate that their Lolli Gloss products will be
ready for export late August 2017. See Exhibit E2 attachment at p. 13.
61. In at least some instances, Defendant Greenwoods communications offering for
sale Defendants Lolli Gloss products were sent by and through Factum, from Defendant
Greenwoods Factum e-mail address, and specifically targeted individuals having prior
relationships with Flickable and purport to associate Defendants with Flickable. See Exhibit E1.
62. In other instances, Defendant Greenwoods communications offering for sale
Defendants Lolli Gloss products were sent from the email address tgreenwood@lolligloss.com.
See Exhibits E2 and E3. In these instances, the recipients of Mr. Greenwoods communications
are hidden because Defendant Greenwood bcced the recipients.
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63. Upon information and belief, one or more of the recipients of Defendants e-mails
reside in the United States and/or conduct business within the United States and could serve as
distributors of Defendants Lolli Gloss products to consumers within the United States.
64. Recipients of Defendants e-mails include customers taken from Flickables
confidential and protected customer lists, including several United States customers.
65. Upon information and belief, Defendants communications are directed at U.S.
distributors, including distributors residing within this district, as evidenced by the facts that: prices
are principally provided in U.S. dollars; the brochure and communications are entirely in English;
and the communications indicate that Mr. Greenwood is looking for distributor partners all over
the world! and that All you have to do is ask yourself if it will be your company representing
Lolli Gloss in your country. See Exhibit E2.
66. Attached as Exhibit F is a true and correct copy of the Defendants website at the
domain name www.lolligloss.com, accessed as of July 5, 2017. The Defendants website
incorporates material that is substantially similar to Flickables promotional material, and brazenly
advertises the product as an Innovative, Cool Design, and touts its Global Brand Presence.
67. Upon information and belief, Defendant Greenwood is controlling Defendants
wrongful conduct related to the promotion, sale, offer for sale, importation, and/or use within the
United States of Defendants Lolli Gloss products, including the sending of Defendants
communications, design of the Lolli Gloss promotional material, purchasing of the
www.lolligloss.com domain name, and establishing the website operating at that domain name.
68. Upon information and belief, Defendants unlawful activity related to the Lolli
Gloss products is also being performed by and through, and with the knowledge of, Defendant
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Factum and with the intent of Factum to deceive purchasers and potential purchasers of the Lolli
Gloss products.
69. In a further effort to conceal their unlawful activity while capitalizing on
Flickables goodwill and intellectual property, Defendants have registered the domain name
www.lolligloss.com by proxy, i.e., without revealing the true owner of the Lolli Gloss website.
Attached herewith as Exhibit G is a true and correct copy of the Who Is search for the domain
name www.lolligloss.com.
70. Defendants Lolli Gloss name did not originate with Defendants. Attached as
Exhibit H is a true and correct copy of a June, 2016, e-mail communication from Kevin David of
Flickable to Defendant Greenwood mentioning Lolli Gloss.
71. Upon information and belief, Defendants have been aware of the Flickable Patents,
the Flickable Trade Dress, and Flickables promotional materials (collectively the Flickable
Intellectual Property) since at least as early as May 2016.
72. Defendants are not and never have been authorized to use the Flickable Intellectual
Property other than as authorized by Flickable with respect to the promotion of genuine Flickable
goods; Defendants have never been authorized to use the Flickable Intellectual Property with
respect to non-Flickable cosmetic or beauty products; and Defendants have not been authorized to
use the Flickable Intellectual Property for any purpose since at least May 31, 2017.
73. The packaging of Defendants Lolli Gloss lip gloss products is identical to the
Flickable Trade Dress, including the use of a lollipop shape having a symmetrical pattern on a
dome, with the dome affixed on an elongated rod with a skirt. Such an exact copy is a counterfeit
of the Flickable Trade Dress and, on information and belief, resulted from the Defendants
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intentional and unauthorized use and/or misappropriation of Flickables tooling, molds, machining
and manufacturing know-how.
74. Upon information and belief, Defendants use of the Flickable Intellectual Property
to offer for sale the infringing Lolli Gloss lip gloss products was done with the knowledge and
intent that consumers would likely confuse Defendants Lolli Gloss lip gloss products with
Plaintiffs genuine Flickable lip gloss products, and with the intent to thereby trade on Plaintiffs
goodwill in the Flickable Trade Dress.
COUNT I
BREACH OF CONTRACT
(DEFENDANT FACTUM)
75. The allegations of paragraphs 1-74 of this Complaint are incorporated by reference
herein.
76. Flickable and Factum entered into the NDA, which required Factum to maintain
confidential material disclosed by Flickable to Factum in strict confidence and under appropriate
safeguards. Exhibit D, 4. The NDA also required Factum to return all confidential written and
tangible material provided by Flickable to Factum upon request by Flickable.
77. Factum materially breached the NDA by failing to maintain confidential material
disclosed by Flickable to Factum in strict confidence, and by failing to return Flickables
confidential written and tangible material to Flickable after Flickable requested the return of same.
78. As a direct and proximate result of Factums material breaches of the NDA,
Flickable has suffered damages and irreparable injury.
79. Flickable has suffered and will continue to suffer damages and irreparable injury
unless Factums ongoing breach of the NDA is enjoined.
80. Flickable does not have a fully adequate remedy at law.
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81. Flickable is entitled to recover its costs and expenses, including its attorneys fees,
on this cause of action. See Exhibit D, 7.
COUNT II
FEDERAL TRADEMARK INFRINGEMENT (15 U.S.C. 1114)
(ALL DEFENDANTS)
82. The allegations of paragraphs 1-74 of this Complaint are incorporated by reference
herein.
83. The Flickable Trade Dress is now, and at all relevant times has been, in use by
Flickable.
84. The Flickable Trade Dress as used by Defendants is a counterfeit of a mark that is
registered on the Principal Register in the United States Patent and Trademark Office for
cosmetics, namely lip gloss, lipstick.
85. Defendants use of the Flickable Trade Dress in connection with the promotion,
advertising, offering for sale, and sale of lip gloss in their lollipop-shaped packaging of Exhibits E
and F is likely to cause confusion, mistake and/or deception in the minds of consumers as to the
ownership, sponsorship and/or affiliation of Defendants with Flickable, and/or the origin of goods
purchased from Defendants, in that customers are likely to believe that Defendants and/or its goods
are owned by, sponsored by, authorized by, or affiliated with Flickable, and/or that Defendants
goods originate with Flickable, when in fact that is not the case, all to the damage and detriment
of Flickables reputation and goodwill.
86. Defendants actions as foresaid constitute infringement of the registered Flickable
Trade Dress and the use of a counterfeit mark in violation of 15 U.S.C. 1114.
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87. As a result of Defendants infringement of the registered Flickable Trade Dress,
Flickable has suffered and will continue to suffer monetary damages in an amount to be determined
at trial.
88. Defendants have profited and continue to profit from their infringement.
89. Defendants infringement of the registered Flickable Trade Dress was and is willful
and/or intentional, thereby making this case exceptional under 15 U.S.C. 1117(a).
90. Flickable has suffered and will continue to suffer damages and irreparable injuries
unless Defendants infringement of the Flickable Trade Dress is enjoined.
COUNT III
CONTRIBUTORY TRADEMARK INFRINGEMENT
(ALL DEFENDANTS)
92. The allegations of paragraphs 1-74 and 83-91 of this Complaint are incorporated
by reference herein.
93. Upon information and belief, third party distributors, retailers, merchants, and other
individuals are engaging in tortious conduct in violation of the Lanham Act, including by
promoting, advertising, offering for sale, selling, and distributing Defendants Lolli Gloss lip gloss
products in Defendants infringing packaging.
94. Defendants have knowledge of such tortious conduct based upon, among other
things, Defendants knowledge of Flickables Trade Dress.
95. Upon information and belief, despite such knowledge, Defendants have knowingly
and intentionally induced such third parties to infringe the Flickable Trade Dress by, among other
things, supplying Defendants Lolli Gloss lip gloss products in infringing lollipop-shaped
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packaging and by providing to such third parties advertising and marketing materials depicting the
infringing packaging.
96. Upon information and belief, Defendants have continued to supply to such third
parties Lolli Gloss lip gloss products in the infringing packaging and advertising and marketing
material depicting the infringing packaging with knowledge that such third parties are engaging in
infringement of the Flickable Trade Dress.
97. Defendants are also actively inducing such third parties to engage in wrongful,
infringing conduct under the Lanham Act as described herein.
98. Defendants are contributorily liable for such third parties infringement of the
Flickable Trade Dress in violation of 15 U.S.C. 1051, et seq.
99. As a result of Defendants contributory trademark infringement, Flickable has
suffered and will continue to suffer monetary damages in an amount to be determined at trial.
100. Defendants have profited and will continue to profit from Defendants contributory
trademark infringement.
101. Defendants contributory trademark infringement was and is willful and/or
intentional, thereby making this case exceptional under 15 U.S.C. 1117(a).
unless Defendants contributory trademark infringement is enjoined.
COUNT IV
INFRINGEMENT OF THE 595 PATENT (35 U.S.C. 271(a))
(ALL DEFENDANTS)
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105. The 595 Patent is valid and enforceable.
106. The 595 Patent claims a non-functional ornamental design for a lip gloss container.
107. Defendants have appropriated the ornamental design of the 595 Patent, and are
infringing, literally or under the doctrine of equivalents, the 595 Patent by making, using, offering
for sale, selling in this district and elsewhere in the United States, and/or importing into this district
and elsewhere in the United States, without license or authority, products that infringe the 595
Patent.
108. Defendants had notice that the Flickables lollipop-shaped packaging was protected
under the 595 Patent at least by virtue of Defendants prior business relationship with Flickable
and communications between Flickable and Defendants during the course of that relationship.
109. Upon information and belief, Defendants are continuing the manufacture, use, offer
for sale, sale, and importation of their infringing Lolli Gloss lip gloss products despite their
knowledge of the 595 Patent.
110. Defendants acted, and continue to act, recklessly by continuing their infringing
activities despite a high likelihood that their actions constituted infringement of the 595 Patent,
and Defendants knew or should have known that their actions constituted an unjustifiably high risk
of infringement.
unless Defendants infringement of the 595 Patent is enjoined.
COUNT V
INDUCED INFRINGEMENT OF THE 595 PATENT (35 U.S.C. 271(b))
(ALL DEFENDANTS )
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113. The allegations of paragraphs 1-74, 83-91, and 105-112 of this Complaint are
incorporated by reference herein.
114. Defendants have infringed the 595 Patent by knowingly and actively inducing
others, including third party distributors, customers, and other cosmetic and beauty industry
companies, to engage in direct infringement of the 595 Patent by offering for sale and selling
Defendants infringing Lolli Gloss lip gloss products with knowledge and intent to induce such
infringing acts.
115. Defendants inducement of infringement of the 595 Patent has been willful,
deliberate, and objectively reckless.
unless Defendants inducement of infringement of the 595 Patent is enjoined.
COUNT VI
INFRINGEMENT OF THE 493 PATENT (35 U.S.C. 271(a))
(ALL DEFENDANTS)
119. The 493 Patent is valid and enforceable.
120. The 493 Patent claims a non-functional ornamental design for a dome for lip gloss
container.
121. Defendants have appropriated the ornamental design of the 493 Patent, and are
infringing, literally or under the doctrine of equivalents, the 493 Patent by making, using, offering
for sale, selling in this district and elsewhere in the United States, and/or importing into this district
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and elsewhere in the United States, without license or authority, products that infringe the 493
Patent.
122. Defendants had notice that the Flickables lollipop-shaped packaging was protected
under the 493 Patent at least by virtue of Defendants prior business relationship with Flickable
and communications between Flickable and Defendants during the course of that relationship.
123. Upon information and belief, Defendants are continuing the manufacture, use, offer
for sale, sale, and importation of their infringing Lolli Gloss lip gloss products despite their
knowledge of the 493 Patent.
124. Defendants acted, and continue to act, recklessly by continuing their infringing
activities despite a high likelihood that their actions constituted infringement of the 493 Patent,
and Defendants knew or should have known that their actions constituted an unjustifiably high risk
of infringement.
unless Defendants infringement of the 493 Patent is enjoined.
COUNT VII
INDUCED INFRINGEMENT OF THE 493 PATENT (35 U.S.C. 271(b))
(All DEFENDANTS)
127. The allegations of paragraphs 1-74, 83-91, and 119-126 of this Complaint are
incorporated by reference herein.
128. Defendants have infringed the 493 Patent by knowingly and actively inducing
others, including third party distributors, customers, and other cosmetic and beauty industry
companies, to engage in direct infringement of the 493 Patent by offering for sale and selling
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Defendants infringing Lolli Gloss lip gloss products with knowledge and intent to induce such
infringing acts.
129. Defendants inducement of infringement of the 493 Patent has been willful,
deliberate, and objectively reckless.
unless Defendants inducement of infringement of the 493 Patent is enjoined.
COUNT VIII
MISAPPROPRIATION OF TRADE SECRETS
(NEW YORK COMMON LAW)
(ALL DEFENDANTS)
132. The allegations of paragraphs 1-74, 76-81, 83-91, 93-103, 105-112, 114-117, 119-
126, and 128-131 of this Complaint are incorporated by reference herein.
133. Flickable possess numerous trade secrets including, but not limited to, its
manufacturing know-how for the process of manufacturing its lip gloss products and lollipop-
shaped packaging, Flickables tooling and machines to produce its lip gloss and lollipop-shaped
packaging, and its customers lists (collectively, the Flickable Trade Secrets).
134. The Flickable Trade Secrets have significant value to Flickable in its business of
manufacturing and selling beauty and cosmetic products, namely its line of lip gloss in its award
winning lollipop-shaped product packaging.
135. The Flickable Trade Secrets give Flickable a competitive advantage over its
competitors who do not know the Flickable Trade Secrets. The Flickable Trade Secrets are critical
to manufacturing and selling Flickables acclaimed lip gloss products in Flickables lollipop-
shaped packaging.
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136. Flickable has taken reasonable efforts to keep the Flickable Trade Secrets secret
including, but not limited to, limiting access to the Flickable Trade Secrets and requiring
employees, agents, independent contractors, or other persons who are granted access to the
Flickable Trade Secrets to sign confidentiality or non-disclosure agreements.
137. Defendants had access to and acquired the Flickable Trade Secrets pursuant to the
NDA. Pursuant to the NDA, and as Flickables representative and agent, Defendants owed a duty
to Flickable to maintain the Flickable Trade Secrets as confidential and to neither use nor disclose
the Flickable Trade Secrets outside the terms of the NDA.
138. Defendants have used and are using the Flickable Trade Secrets in breach of the
NDA to make, use, sell, offer to sell, and/or import, Defendants Lolli Gloss lip gloss products.
139. Defendants wrongful conduct constitutes a misappropriation of the Flickable
Trade Secrets under New York common law.
unless Defendants misappropriation of the Flickable Trade Secrets is enjoined.
COUNT IX
MISAPPROPRIATION OF TRADE SECRETS
(DEFEND TRADE SECRETS ACT, 18 U.S.C. 1836(b))
(ALL DEFENDANTS)
126, 128-131, and 133-141 of this Complaint are incorporated by reference herein.
143. Defendants wrongful conduct constitutes a misappropriation of the Flickable
Trade Secrets under the Defend Trade Secrets Act, 18 U.S.C. 1836(b).
unless Defendants misappropriation of the Flickable Trade Secrets is enjoined.
24
COUNT X
VIOLATION OF N.Y. GENERAL BUSINESS LAW 349
(ALL DEFENDANTS)
126, 128-131, 133-141, and 143-145 are incorporated by reference herein.
147. Defendants acts complained of herein constitute deceptive acts or practices in
violation of New Yorks General Business Law 349.
148. Defendants conduct has been, and is, directed at the public at large, thereby injuring
Plaintiff.
149. Defendants conduct was and is willful and/or intentional.
JURY DEMAND
Pursuant to Rule 38(b), Fed. R. Civ. P., Flickable requests a trial by jury on all issues triable
to a jury.
WHEREFORE, Plaintiff demands judgment against Defendants as follows:
COUNT I
BREACH OF CONTRACT
A) Enjoining Factum, together with its officers, agents, servants, employees, assigns,
successors, and attorneys, and all other persons acting in concert with it, from using, selling,
disseminating, publishing, or otherwise disclosing the Disclosed Material as that term is defined
in the NDA;
B) Directing Factum, together with its officers, agents, servants, employees, assigns,
successors, and attorneys, and all other persons acting in concert with it, to deliver up to Plaintiff
25
for destruction all Disclosed Material (as defined in the NDA) in its possession, custody, or control,
and confirm same in writing by a certification to this Court; and
C) Awarding Plaintiff its costs and expenses, including attorneys fees, for bringing
this action, including pre- and post-judgment interest on any monetary award, including any
attorneys fee award, all as provided in the NDA.
COUNT II
FEDERAL TRADEMARK INFRINGEMENT (15 U.S.C. 1114)
A) Enjoining Defendants, together with their respective officers, agents, servants,
employees, assigns, successors, and attorneys, and all other persons acting in concert with them,
pursuant to 15 U.S.C. 1116(a):
1) from selling, offering to sell, marketing, promoting, or advertising products
using the Flickable Trade Dress; and
2) from selling, offering to sell, marketing, promoting, or advertising the sale
of any goods or services under any designation likely to be confused with the Flickable Trade
Dress;
B) Granting an Order providing for the seizure of goods and counterfeit marks
involved in Defendants infringement of the Flickable Trade Dress, and the means of making such
marks, and records documenting the manufacture, sale, or receipt of things involved in such
infringement, pursuant to 15 U.S.C. 1116(d)(1)(A);
C) Directing Defendants to deliver up to Plaintiff all things in their possession,
custody, or control bearing the Flickable Trade Dress, and/or any other designation likely to be
confused with the Flickable Trade Dress, pursuant to 15 U.S.C. 1118;
D) Directing Defendants to account for and pay over to Plaintiff all profits Defendants
obtained, received, or derived from selling, or offering to sell, goods or services bearing the
26
Flickable Trade Dress, or any other designation likely to be confused with the Flickable Trade
Dress, pursuant to 15 U.S.C. 1117(a);
E) Awarding Plaintiff all damages suffered as a consequence of Defendants acts of
infringement, pursuant to 15 U.S.C. 1117(a);
F) Awarding Plaintiff up to three times its damages and/or Defendants profits,
pursuant to 15 U.S.C. 1117(a);
G) Entering judgment for three times Defendants profits or Plaintiffs damages,
whichever is greater, together with a reasonable attorneys fee, pursuant to 15 U.S.C. 1117(b)
or, at Plaintiffs election at any time before final judgment, an award of statutory damages in the
amount of (1) not less than $1,000 or more than $200,000 per counterfeit mark per type of goods
or services sold, offered for sale, or distributed, as the Court considers just; or (2) if the Court finds
that the use of the counterfeit mark was willful, not more than $2,000,000 per counterfeit mark per
type of goods or services sold, offered for sale, or distributed, as the Court considers just, pursuant
to 15 U.S.C. 1117(c);
H) Declaring that this case is exceptional within the meaning of 15 U.S.C. 1117(a);
I) Awarding Plaintiff the attorneys fees it has incurred in investigating, bringing, and
prosecuting this action, pursuant to 15 U.S.C. 1117(a);
J) Awarding Plaintiff the costs and disbursements of this action, and pre- and post-
judgment interest on any monetary award, including any attorneys fee award.
COUNT III
CONTRIBUTORY TRADEMARK INFRINGEMENT
pursuant to 15 U.S.C. 1116(a):
27
1) from contributing to the sale, offer for sale, marketing, promotion, or
advertising of products using the Flickable Trade Dress;
2) from contributing to the sale, offer for sale, marketing, promotion, or
advertising of any goods or services under any designation likely to be confused with the Flickable
Trade Dress;
B) Granting an Order providing for the seizure of goods and counterfeit marks
involved in Defendants infringement, and the means of making such marks, and records
documenting the manufacture, sale, or receipt of things involved in such infringement, pursuant to
15 U.S.C. 1116(d)(1)(A);
C) Directing Defendants to deliver up to Plaintiff all things in their possession,
custody, or control bearing the Flickable Trade Dress, and/or any other designation likely to be
confused with the Flickable Trade Dress, pursuant to 15 U.S.C. 1118;
D) Directing Defendants to account for and pay over to Plaintiff all profits Defendants
Flickable Trade Dress, or any other designation likely to be confused with the Flickable Trade
Dress, pursuant to 15 U.S.C. 1117(a);
E) Awarding Plaintiff all damages suffered as a consequence of Defendants acts of
infringement, pursuant to 15 U.S.C. 1117(a);
F) Awarding Plaintiff up to three times its damages and/or Defendants profits,
pursuant to 15 U.S.C. 1117(a);
G) Entering judgment for three times Defendants profits or Plaintiffs damages,
whichever is greater, together with a reasonable attorneys fee, pursuant to 15 U.S.C. 1117(b)
or, at Plaintiffs election at any time before final judgment, an award of statutory damages in the
amount of (1) not less than $1,000 or more than $200,000 per counterfeit mark per type of goods
or services sold, offered for sale, or distributed, as the Court considers just; or (2) if the Court finds
28
that the use of the counterfeit mark was willful, not more than $2,000,000 per counterfeit mark per
type of goods or services sold, offered for sale, or distributed, as the Court considers just, pursuant
to 15 U.S.C. 1117(c);
H) Declaring that this case is exceptional within the meaning of 15 U.S.C. 1117(a);
I) Awarding Plaintiff the attorneys fees it has incurred in investigating, bringing and
prosecuting this action, pursuant to 15 U.S.C. 1117(a); and
J) Awarding Plaintiff the costs and disbursements of this action, and pre- and post-
COUNT IV
INFRINGEMENT OF THE 595 PATENT
from infringing the 595 patent pursuant to 35 U.S.C. 283;
B) Awarding Plaintiff all damages suffered as a consequence of Defendants acts of
infringement, pursuant to 35 U.S.C. 284;
C) Declaring Defendants infringement to be willful and trebling all damages awarded
to Plaintiff based on Defendants willful infringement of the 595 Patent;
D) Declaring that this case is exceptional within the meaning of 35 U.S.C. 285;
E) Awarding Plaintiff the attorneys fees it has incurred in investigating, bringing and
prosecuting this action, pursuant to 35 U.S.C. 285; and
F) Awarding Plaintiff the costs and disbursements of this action, and pre- and post-
COUNT V
INDUCED INFRINGEMENT OF THE 595 PATENT
29
from inducing infringement of the 595 Patent pursuant to 35 U.S.C. 283, and/or inducement of
the same;
B) Awarding Plaintiff all damages suffered as a consequence of Defendants
inducement of infringement of the 595 Patent, pursuant to 35 U.S.C. 284;
C) Declaring Defendants inducement of infringement of the 595 Patent to be willful
and trebling all damages awarded to Plaintiff based on Defendants willful infringement of the
595 Patent;
COUNT VI
INFRINGEMENT OF THE 493 PATENT
from infringing the 493 patent pursuant to 35 U.S.C. 283;
B) Awarding Plaintiff all damages suffered as a consequence of Defendants acts of
infringement, pursuant to 35 U.S.C. 284;
C) Declaring Defendants infringement to be willful and trebling all damages awarded
to Plaintiff based on Defendants willful infringement of the 493 Patent;
30
COUNT VII
INDUCED INFRINGEMENT OF THE 493 PATENT
from inducing infringement of the 493 Patent pursuant to 35 U.S.C. 283;
B) Awarding Plaintiff all damages suffered as a consequence of Defendants
inducement of infringement of the 493 Patent, pursuant to 35 U.S.C. 284;
C) Declaring Defendants inducement of infringement to be willful and trebling all
damages awarded to Plaintiff based on Defendants willful infringement of the 493 Patent;
COUNT VIII
MISAPPROPRIATION OF TRADE SECRETS (NEW YORK)
employees, assigns, successors, and attorneys and all other persons acting in concert with them
from any actual or threatened misappropriation of the Flickable Trade Secrets;
B) Should the Court find an injunction to be inequitable, conditioning future use of
the Flickable Trade Secrets upon payment of a reasonable royalty;
31
C) Awarding Plaintiff all damages suffered as a consequence of Defendants
misappropriation, including Plaintiffs actual damages and any unjust enrichment of Defendants;
D) Declaring that Defendants misappropriation was willful and/or malicious;
E) Awarding Plaintiff enhanced or exemplary damages for Defendants willful and/or
malicious misappropriation;
F) Awarding Plaintiff the attorneys fees it has incurred in investigating, bringing and
prosecuting this action; and
G) Awarding Plaintiff the costs and disbursements of this action, and pre- and post-
COUNT IX
MISAPPROPRIATION OF TRADE SECRETS (DTSA)
employees, assigns, successors, and attorneys and all other persons acting in concert with them
from any actual or threatened misappropriation of the Flickable Trade Secrets, pursuant to 18
U.S.C. 1836(b)(3)(A);
B) Should the Court find an injunction to be inequitable, conditioning future use of
the Flickable Trade Secrets upon payment of a reasonable royalty;
C) Awarding Plaintiff all damages suffered as a consequence of Defendants
misappropriation, including Plaintiffs actual damages and any unjust enrichment of Defendants,
pursuant to 18 U.S.C. 1836(b)(3)(B);
D) Declaring that Defendants misappropriation was willful and/or malicious;
E) Awarding Plaintiff enhanced or exemplary damages for Defendants willful and/or
malicious misappropriation, pursuant to 18 U.S.C. 1836;
32
G) Awarding Plaintiff the costs and disbursements of this action and pre- and post-
COUNT X
VIOLATION OF N.Y. GENERAL BUSINESS LAW 349
employees, assigns, successors, and attorneys and all other persons acting in concert with them:
1) from selling, offering to sell, marketing, promoting, or advertising products
using the Flickable Intellectual Property and/or the Flickable Trade Secrets;
2) from selling, offering to sell, marketing, promoting, or advertising the sale
of any goods and/or services under any designation likely to be confused with Flickable Trade
Dress;
3) from making or publishing any representations concerning Plaintiff and/or
the Flickable Trade Dress and/or any lip gloss having a lollipop-shaped packaging, stating,
suggesting or implying that Defendants or either of them and/or that any of Defendants goods or
services are affiliated with, owned by, authorized by, and/or sponsored by Plaintiff; and
4) engaging in any other acts in violation of N.Y. General Business Law 349;
B) Directing Defendants to deliver up to Plaintiff all things in their possession,
custody, or control bearing the Flickable Intellectual Property, and/or embodying or based on the
Flickable Trade Secrets, and/or any designation likely to be confused with the Flickable Trade
Dress;
C) Directing Defendants to account for and pay over to Plaintiff all profits Defendants
Flickable Trade Dress or any designation likely to be confused with the Flickable Trade Dress, or
made or sold using the Flickable Trade Secrets;
D) Awarding Plaintiff all damages suffered as a consequence of Defendants conduct;
33
E) Declaring that Defendants willfully and knowingly violated N.Y. General Business
Law 349 and awarding Plaintiff three times its actual damages;
prosecuting this action; and
G) Awarding Plaintiff the costs and disbursements of this action and pre- and post-
AS TO ALL COUNTS
Awarding Plaintiff such other, further or different relief in its favor and against Defendants
as this Court may deem just and proper.
Dated: July 12, 2017 COZEN OCONNOR
/s/ Martin B. Pavane

Martin B. Pavane (MP4871)
Marilyn Neiman (MN6194)
277 Park Avenue
New York, New York 10172
Tel. (212) 883-4900
Fax: (212) 986-0604
Email: mpavane@cozen.com,
mneiman@cozen.com
Attorneys for Plaintiff Flickable LLC
34
Case 7:17-cv-05273 Document 1-1 Filed 07/12/17 Page 1 of 15
COMPOSITE
EXHIBIT A
EXHIBIT A1
EXHIBIT A2
EXHIBIT B
EXHIBIT C
EXHIBIT D
COMPOSITE
EXHIBIT E
EXHIBIT E1
Weaver, Rob
From: Catherine Banks <cat@flickable.com>

Sent:
To: Weaver, Rob
Subject: Fwd: New Opportunity - Lip Gloss
Attachments: Lolli Gloss Distributor Prices and Terms.pdf; ATT00001.htm; Untitled attachment
00010.htm; ATT00002.htm
Begin forwarded message:
From: Kevin David <kevin@flickable.com>

Date: June 24, 2017 at 11:27:16 AM EDT
To: Catherine <cat@flickable.com>
Subject: Fwd: New Opportunity - Lip Gloss
Live Flickable,
KD
Kevin David
Director of Sales & Marketing/Founder
Office: +1(646)201-9483
Www.flickable.com
The link ed
image can not
be d isplay ed.
The file may
hav e been
mov ed,
ren amed, or
deleted.
Verify that
the link
points to the
correct file
and location.
From:
To: <kevin@flickable.com>
Subject: FW: New Opportunity - Lip Gloss
From: Tom Greenwood [mailto:tom@factumpartnersinc.com]

Sent: Wednesday, May 31, 2017 7:14 AM
To:
Cc:
Subject: New Opportunity - Lip Gloss
Hello
See attached.is this more enticing

1
Sincerely,
Tom Greenwood
President & Founder
Factum Partners Inc.

P: (289) 291-4012
M: (416) 574-2274
E: tom@factumpartnersinc.com
www.FACTUMPARTNERSINC.com
2
Distributor Prices, Terms and Conditions Outline
Our focus is to find distributors that we can build a mutually beneficial partnership
and friendship with. We believe that business doesn't have to be complicated.
We will do what we need to do to support our partners to get our product into
market and have exceptional sell through once placed at the retail level.
You Win, We Winthat is the way it should be.
Product Offering and Price

Lolli Gloss will launch with 5 colors and flavors at a very competitive price.
Distributor cost per unit of $1.30 each will include airfreight from our
factory in Asia to our distributors main location (based on minimum order
quantity). Distributor will be responsible for all import duties, taxes, freight from
airport, etc.
Minimum Order Quantity: 3,500 units per color of each color (17,500 total)
Payment Terms are as follows:
o 30% Deposit with order.
o 30% Payment 4-6 weeks ARO. (This will allow distributor to pre-sell Lolli
Gloss in their territories and then potentially add to their initial order after
minimum order is placed.)
o 40% Final payment when order is ready for export
Distributors will be granted an exclusive territory for a minimum of 3 years.
First orders scheduled to ship by mid August 2015.
Global RRP, Retail Cost and Distributor Cost
USD (Ex VAT)

RRP Retailer Cost Distributor Cost**
$5.00 $2.50 $1.13
GBP (Ex VAT)

3.99 2.00 0.88
Euro (Ex VAT)

4.50 2.25 1.02
** - Distributor Cost used in this calculation is not inclusive

of included airfreight - **
v-05273 Document 1-5 Filed 07/12/17 P
v-05273 Document 1-5 Filed 07/12/17 P
5 delicious
flavours to
choose!
EXHIBIT E2
Weaver, Rob

Sent:
To: Weaver, Rob
Subject: Fwd: Lolli Gloss, The Original Lolli Pop Lip Gloss - Distributors Needed
Attachments: PastedGraphic-1.tiff; ATT00001.htm; Untitled attachment 00029.htm; ATT00002.htm;
New Lolligloss Intro-Distributor.pdf; ATT00003.htm; Untitled attachment 00032.htm;
ATT00004.htm

Live Flickable,
KD
Kevin David
Office: +1(646)201-9483
Www.flickable.com
The link ed
image can not
be d isplay ed.
The file may
hav e been
mov ed,
ren amed, or
deleted.
Verify that
the link
points to the
correct file
and location.
From:
Subject: FW: Lolli Gloss, The Original Lolli Pop Lip Gloss - Distributors Needed
From: Tom Greenwood [mailto:tgreenwood@lolligloss.com]

Sent: Saturday, June 17, 2017 9:00 PM
To: Tom Greenwood <tgreenwood@lolligloss.com>
Subject: Lolli Gloss, The Original Lolli Pop Lip Gloss - Distributors Needed
Importance: High
Have you heard? Lolli Gloss, The Original Lolli Pop Lip Gloss, is looking for
distributor partners all over the world!
1
Lolli Gloss is a lip gloss that is as seductive as candy with no caloric damage.
Made with safe, natural ingredients and flavors it is a stop dead in your tracks
product that is taking the world by storm! In a retail environment consumers will
purchase 1, 2 or 3 units because they think it is coolBUT...they will come back
and purchase more once they realize the gloss moisturizes lips, has a hint of a
natural volume to plump lips, offers outstanding sparkle & shine all in a
proprietary non-sticky formula.
We now need the right partners to get this product into market. We are a mass
market product that can be placed in every retail environment. Hypermarkets,
Supermarkets, Department Stores, Pharmacies, Petrol Stationsanywhere! Our
blister pack packaging allows consumers to see the product as our backer card has
call outs to assure consumers identify with all the great things about Lolli Gloss.
We have attached a presentation that provide more information on our product,

cost and what we are looking for in a partner. We want to work with our partners
and develop long term, friendships that allow all of us to succeed. We can work
with you on minimum order quantities and payment terms to assure you are
successful in launching Lolli Gloss into your territory.
All you have to do is ask yourself if it will be your company representing Lolli
Gloss in your country.
Please let us know, via email if you are interested in learning more about Lolli
Gloss and becoming the exclusive distributor in your territory.
Sincerely,
Tom Greenwood
President
E: tgreenwood@lolligloss.com
M: + 1 416 574-2274
2
J,.
We Need Strategic Global Distribution Partners

to bring LolliGloss to The Market
Distributors Who...
Have outstanding relationships with Chain Drug and Mass Retail networks in their territory
Can support brand management, sales teams and merchandising in the field throughout
their authorized territory
Can issue PO's and hold inventory of at least 45-90 days of product and have strong logistics
infrastructure to support Chain Drug and Mass Retail in their territory
Will invest in & drive local PR, Social Media and other marketing initiatives within their territory
Main Terms
Distributor cost of $1.20 USD per unit Ex -Works OR $1.30 USD per unit Incl. Air Freight
RRP will be $4.99 USO / 4.99 / 4,99. This allows for a 4.25 co-efficient from export to retail
(not withstanding currency correction)
We will offer exclusive distribution rights for an initial term of 3 years for each territory
Mandatory opening order for each territory will be a minimum 17,500 units (3,500 of each color)
30% Deposit with order.
30% Payment 4-6 weeks ARO. (fhis will allow distributor to pre-sell Lolli Gloss in their territories and
then potentially add to their initial order after minimum order is placed.)
40% Final payment when order is ready for export
EXHIBIT E3
Weaver, Rob

Sent:
To: Weaver, Rob
Attachments: PastedGraphic-1.tiff; ATT00001.htm; Untitled attachment 00019.htm; ATT00002.htm;
New Lolligloss Intro-Distributor.pdf; ATT00003.htm; Untitled attachment 00022.htm;
ATT00004.htm

Live Flickable,
KD
Kevin David
Office: +1(646)201-9483
Www.flickable.com
The link ed
image can not
be d isplay ed.
The file may
hav e been
mov ed,
ren amed, or
deleted.
Verify that
the link
points to the
correct file
and location.
From:
Subject: FW: Lolli Gloss, The Original Lolli Pop Lip Gloss - Distributors Needed
From: Tom Greenwood [mailto:tgreenwood@lolligloss.com]

Sent: Wednesday, June 21, 2017 7:11 PM
To: Tom Greenwood <tgreenwood@lolligloss.com>
Subject: Re: Lolli Gloss, The Original Lolli Pop Lip Gloss - Distributors Needed
Importance: High
Good Day!
1
I wanted to follow up to see if you received the email below. Please advise.
Sincerely,
Tom Greenwood
President
E: tgreenwood@lolligloss.com
M: + 1 416 574-2274
2
J,.
We Need Strategic Global Distribution Partners

to bring LolliGloss to The Market
Distributors Who...
Have outstanding relationships with Chain Drug and Mass Retail networks in their territory
Can support brand management, sales teams and merchandising in the field throughout
their authorized territory
Can issue PO's and hold inventory of at least 45-90 days of product and have strong logistics
infrastructure to support Chain Drug and Mass Retail in their territory
Will invest in & drive local PR, Social Media and other marketing initiatives within their territory
Main Terms
Distributor cost of $1.20 USD per unit Ex -Works OR $1.30 USD per unit Incl. Air Freight
RRP will be $4.99 USO / 4.99 / 4,99. This allows for a 4.25 co-efficient from export to retail
(not withstanding currency correction)
We will offer exclusive distribution rights for an initial term of 3 years for each territory
Mandatory opening order for each territory will be a minimum 17,500 units (3,500 of each color)
30% Deposit with order.
30% Payment 4-6 weeks ARO. (fhis will allow distributor to pre-sell Lolli Gloss in their territories and
then potentially add to their initial order after minimum order is placed.)
40% Final payment when order is ready for export
EXHIBIT F
EXHIBIT G
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EXHIBIT H

Flickable v. Factum Partners - Complaint

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Flickable v. Factum Partners - Complaint

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Case 7:17-cv-05273 Document 1 Filed 07/12/17 Page 1 of 34

Martin B. Pavane (MP4871)

Attorneys for Plaintiff Flickable LLC.

UNITED STATES DISTRICT COURT

Plaintiff, Civil Action No. ________

attorneys, Cozen OConnor, alleges as follows:

1. Flickable is a Delaware limited liability company with a principal place of business

reside in Los Angeles, CA.

2. Upon information and belief, defendant Factum Partners, Inc. (Factum) is a

Oakville, Ontario, Canada, L6m 3E3.

Rosemont, Illinois 60018.

4. Factum owns and operates a website at the domain name

letterhead also identifies these business addresses.

5. Upon information and belief, Defendant Tom Greenwood (Greenwood)

(collectively with Factum, the Defendants) is an individual principally residing in Ontario,

JURISDICTION AND VENUE

6. This is an action for: breach of contract; infringement of federally registered trade

1836(b); and violation of New Yorks General Business Law 349.

1332, 1338(a), 1338(b), and 1367, as well as 18 U.S.C. 1836(c).

A. Flickable and Its Lollipop Lip Gloss

name www.flickable.com, as well as through authorized distributors and at major international

cosmetic conventions, such as Cosmoprof.

distinctive, and easily recognizable by consumers throughout the world.

Global International Package Design Awards (IPDA) in New York.

featured product included in the 2015 Academy Award gift bags.

including periodicals, blogs, and other publications.

16. Flickables lollipop-shaped packaging is embodied in the claimed designs of United

20. Flickables unique and distinctive lollipop-shaped packaging is protected as trade

dress under United States law (the Flickable Trade Dress).

Figure 1 Flickable Trade Dress

its lip gloss products since at least as early as February 2, 2014.

25. As a consequence of Flickables extensive promotion and advertising of the

its lollipop-shaped packaging embodying the Flickable Trade Dress.

that no animal tests were used in the development of the products.

quality products were cruelty free.

B. Flickables Disclosure of Confidential Material to Defendants

president of Factum, and resides in Ontario, Canada, where Factum is headquartered.

is not registered to do business in the state of Illinois.

copy of the NDA is attached hereto as Exhibit D.

proposals regarding a possible business partnership between the companies.

appropriate safeguards. Exhibit D, 4.

39. The NDA also provides that:

personal jurisdiction of this Court. See Exhibit D, 8.

agreement delineating the terms of the parties relationship.

valuable, confidential information of Flickable subject to trade secret protection.

disclosing its confidential information to Defendants.

review product samples.

flavors. Additionally, there were no completed samples of lollipop-shaped product packaging

available for inspection by Flickables representatives.

their affiliation as of May 31, 2017.

that Defendants do so.

C. Defendants Wanton Intellectual Property Infringement

Greenwoods communications to Flickable).

belief, Defendants targeted customers on Flickables customer lists in their communications

promoting Defendants competing Lolli Gloss lip gloss products.

product packaging identical to Flickables protected lollipop-shaped packaging, thereby

originator of Flickables distinctive and award winning lollipop-shaped packaging.

53. In Defendants e-mails and Defendants brochure, Defendants further misrepresent

Defendants emails and brochure.

54. A comparison of Defendants promotional literature for their Lolli Gloss

advertising)) shows that Defendants intentionally copied Flickables promotional material;

Figure 2 Lolligloss Brochure (Exhibit E2, attachment at pg. 3)

Figure 3 Flickable Website (www.flickable.com, Exhibit C)

(Plaintiffs Advertising), infra.