Case 1:19-cv-00559 Document 1 Filed 10/18/19 Page 1 of 14 PageID #: 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

BABY DELIGHT, INC )

)
Plaintiff, )
) Civil Action No. 1:19-cv-559
v. )
)
LORNE JASON CLUTE, ) JURY TRIAL DEMANDED
KEEZIO GROUP, LLC )
)
)
Defendants. )

COMPLAINT FOR DECLARATORY JUDGMENT

Baby Delight, Inc., (“Baby Delight” or “Plaintiff”), through its undersigned attorneys,

alleges the following for its Complaint for Declaratory Judgment against defendants Lorne Jason

Clute (“Clute”) and Keezio Group, LLC (“Keezio”) (collectively, with Clute, “Defendants”):

NATURE OF ACTION

1. This is an action for declaratory judgment seeking a declaration of noninfringement

with respect to U.S. Design Patent No. D712,677 (“the ‘677 design patent”), a declaration that the

Defendants lack standing to claim copyright infringement and a declaration that the Defendants’

asserted unfair competition claim lacks merit, under the patent laws of the United States, the

copyright laws of the United States, and applicable unfair competition law. By this action, Baby

Delight seeks to resolve an actual, immediate, and substantial controversy with Clute and Keezio.

THE PARTIES

2. Plaintiff Baby Delight is a limited liability company organized and existing under

the laws of Rhode Island, having a principal place of business at 30 Martin Street, Suite 3C,

Cumberland, Rhode Island 02864.

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3. Upon information and belief, Clute is a citizen of the United States and permanently

resides in California with a principle residence at 2375 Roundhill Drive, Alamo, California.

4. Upon information and belief, Keezio Group, LLC is a limited liability company

organized and existing under the laws of the state of California, having a principle place of business

at 2375 Roundhill Drive, Alamo, California.

JURISDICTION AND VENUE

5. This Court has subject matter jurisdiction over Baby Delight’s Declaratory

Judgment Complaint under 28 U.S.C. §§ 1331, 1338(a), 2201, and 2202, as the action seeks a

declaration of non-infringement under the Patent Laws of the United States.

6. This Court has personal jurisdiction over Defendants because, upon information

and belief: (a) Defendants are engaged in the business of the design, manufacture, marketing,

distribution and sale of children’s products, including those allegedly related to the ‘677 design

patent, throughout the United States, including to customers within Rhode Island; (b) Defendants

have engaged in tortious or wrongful conduct directed to harm residents of Rhode Island; and (c)

Defendants have purposefully directed their activities to the State of Rhode Island and/or

purposefully availed themselves of this jurisdiction.

7. Venue is proper in this District under 28 U.S.C. § 1391(b)(2) because a substantial

part of the events giving rise to the claims occurred in this District and because Defendants are

subject to personal jurisdiction in this District. Venue is also proper in this District under 28 U.S.C.

§ 1400(b), as Rhode Island is the state in which Defendants have alleged that acts of patent

infringement have occurred and Plaintiff has a regular and established place of business in Rhode

Island.

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FACTUAL BACKGROUND

8. Baby Delight is an industry leader and is recognized both domestically and

internationally for their baby products and innovative designs within the infant and baby industry.

Baby Delight offers a diverse number of products that include bassinets, foldable & portable baby

beds, and play yards.

9. Baby Delight has devoted significant resources to research and development and

safety testing and compliance which has resulted in, among other things, development of

innovative products that include unique designs and features. Through these efforts, Baby Delight

has expanded from an initial handful of products to a diverse ecosystem of over a dozen baby

products that are well known for their ruggedness, quality, simplicity, visual appeal, and ease of

use. These baby/infant products include, but are not limited to the Snuggle Nest™ foldable bed,

the Peak™ Portable Infant Bassinet, the Beside Me™ Dreamer Bassinet and Bedside Sleeper, the

Comfy Rise™ Deluxe Crib Wedge, Trek & Travel™, Go With Me Uplift™ Deluxe Portable High

Chair, Go With Me Haven™ Portable Playard, Go With Me Eclipse™ Portable Playard With

Canopy, Go With Me Sway™ Portable Infant Rocker, Go With Me Slumber™ Deluxe Portable

Rocking Bassinet, Comfy Canopy Breeze™ Portable Canopy, and Go With Me Sprout™ Deluxe

Portable Booster, among numerous other products.

10. Through these aforementioned efforts, Baby Delight began marketing and selling

an infant napper (hereinafter Baby Delight Napper) in 2018 under the brand name of Baby Delight

Nestle Nook™, and subsequently the Baby Delight Comfort Nook™, both in traditional brick-

and-mortar retail stores and online through BabyDelight.com, select retailers, and market places

such as Amazon.

11. On September 26, 2019, Clute sent a letter (hereinafter Sept. 26 letter) via email

through his attorney Christopher W. Sweeney to Baby Delight’s president Jason Macari in Rhode

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Island. Attorney Sweeney also purported to assert the rights of both Jason Clute as well as his

licensees. Upon information and belief, those licensees include Keezio doing business under the

trade name “hiccapop,” Keezio is the exclusive licensee of the ‘677 design patent, and Clute is a

partner, principle, and/or officer of Keezio.

12. The Sept. 26 letter asserted, among other things, that the Baby Delight Napper is

“Confusingly and strikingly similar in look, feel and overall design to my client’s patent, such that

to the casual observer (i.e. the typical Amazon-shopping parent, grandparent, et al.), or to an

observer skilled in the art, your product would appear of associated provenance with those

licensees who have been granted licenses relative to my client’s product.”

13. The Sept. 26 letter further asserted that “[b]y utilizing my client’s design, you have

gained a distinct and unfair competitive advantage over those in the marketplace who are bona fide

licensees of my client’s patent.”

14. The Sept. 26 letter further asserted that “[y]our use of the “FOR THE

FLOOR…NEVER IN THE CRIB” safety symbol is confusingly and strikingly similar to my

client’s design and slogan “FOR THE FLOOR…AND NOTHING MORE” and, among other

obvious and striking similarities, copies my client’s unique color pattern. Your use of this

copyright protected design clearly confuses consumers into believing your product is of similar

provenance to the market leader in this field (see attached photos), thus accruing sales benefit to

your product in a demonstrably unfair manner over that of my client’s valid licensee.”

15. The Sept. 26 letter further asserted that “[i]t appears that your product violates

Federal Marking and Labeling requirements outlined per ASTM F3118-17a

(8.5.1.1(1)(b). Specifically, your safety language has been altered with respect to the very

important age range requirement of 5 months and is displayed instead as 6 months (see attached),

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thus giving you yet another distinct and decidedly unfair competitive advantage against your

competition to whom my client licenses his patent.”

16. On Sept. 27 Baby Delight’s legal counsel contacted Clute’s attorney to inform Clute

that Baby Delight anticipated responding sometime during the following week.

17. On Oct. 10, 2019, Attorney Sweeney sent an email that stated, in relevant part, “I

have not received the response you indicated you would be forwarding. If I do not receive a

response from you by the close of business Friday, 10/11/19 I will assume you do not intend to

respond. Thank you.”

18. On Oct. 11, 2019, Baby Delight’s counsel emailed a response letter that answered

and disputed each allegation of the Sept. 26 letter and, among other things, provided Baby

Delight’s position that the Baby Delight Napper is substantially different from the infant cradle of

the ‘677 design patent.

19. On Oct. 11, 2019, Attorney Sweeney responded to Baby Delight’s response letter

as follows: “I am [sic] receipt of your response and assume from it that your client has no interest

in an amicable resolution. Accordingly, my client will proceed with appropriate legal action.”

20. Counsel for Clute and his licensees engaged in further communication with counsel

for Baby Delight on October 14, 2019. Among other things, Attorney Sweeney demanded that

Baby Delight stop selling on Amazon. Baby Delight did not agree to this demand and the parties

failed to reach a resolution.

21. Attorney Sweeney’s Sept. 26 letter alleged infringement of the ‘677 design patent,

copyright infringement, and unfair competition in connection with voluntary Federal warning label

guidelines. These allegations and subsequent communications from Attorney Sweeney dated Oct.

11th and 14th 2019 underscore that Clute and Keezio demand that Baby Delight discontinue at least

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the sale of the Baby Delight Napper through Amazon. Baby Delight and Defendants have adverse

legal interests with respect to the question of infringement of the ’677 design patent, copyright

infringement and unfair competition. The demands of Defendants arise a substantial controversy

between Baby Delight and Defendants.

COUNT I
DECLARATORY JUDGMENT OF NON-INFRINGEMENT OF THE ’677 DESIGN
PATENT

22. Baby Delight incorporates the preceding paragraphs as if fully set forth herein.

23. Baby Delight’s Napper has not infringed and does not infringe, directly or

indirectly, any claim of the ’677 patent.

24. Briefly, among other reasons, the Baby Delight Napper does not infringe the ‘677

Design Patent because:

a. The Baby Delight Napper does not include the side seams set out in the ‘677

Design Patent and instead features solid fabric on the side with no

ornamentation.

b. The Baby Delight Napper’s arms do not run continuously from front to back

but instead truncate at the feat.

c. The Baby Delight Napper’s seat surface does not run continuously to the floor

but instead ends at a seam by the feet where a flat panel drops to the floor.

d. The Baby Delight Napper’s arms and seat surface do not run continuously from

front to back but instead begin and end at seams that run sharply perpendicular

to the floor.

e. The Baby Delight Napper’s profile also does not run in a smooth continuous

curve from front to back but instead ends abruptly at a flat front panel.

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f. The Baby Delight Napper’s arms do not rise up in straight perpendicular lines

from the floor but instead taper toward the baby, creating a pinched shape rather

than the smooth shape described in the ‘677 Design Patent.

g. The transition between the seam of the support surface and the arms at the rear

of the Baby Delight Napper slopes upwards and meets instead of curving

downwards towards the surface supporting the cradle

These and other features of the Baby Delight Napper, when considered separately or as a whole,

are sufficiently distinct from the ‘677 Design Patent so that the two designs would not appear

substantially the same to an ordinary observer.

25. The following accurately describes Figure 1 as set forth in the ‘677 design paten

and the Baby Delight Napper:

26. The seam line prominently shown at A of the ‘677 design follows, but is offset,

from the ‘curve’ of the arms of the infant cradle of FIG. 1. This seam line can also be seen in

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FIG. 4 of the ‘677 patent, which is reproduced below. The Baby Delight Napper clearly does not

include this seam line at all and instead features a ‘solid’ fabric side without additional

ornamentation.

27. The arms shown in FIG. 1 of the ‘677 patent include a seam/contour that extends

continuously from front to back, and notably, all the way to the surface supporting the infant cradle

as shown at B. The Baby Delight Napper clearly does not include this feature, and instead, features

arms that visibly end at a seam shown generally at C.

28. The supporting surface shown in FIG. 1 of the ‘677 patent at D (the surface that

supports the baby) extends uninterrupted from the back of the infant cradle to the front (where the

baby’s feet would rest). In addition, the supporting surface shown at D curves from the lowest

point (the seat) to the front where the bed meets the underlying surface supporting the same. The

Baby Delight Napper clearly does not include this feature. In contrast, the Baby Delight Napper

includes a supporting surface that ends abruptly at a seam shown generally at E, and then includes

a relatively flat logo panel that extends across the entire width of the bed.

29. The following sets forth Figure 2 as shown in the ‘677 design patent:

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30. FIG. 2 of the ‘677 design patent reproduced above shows that the Infant Cradle

design not only has a continuous supporting surface that transitions to floor, but the supporting

surface includes angular seams that slope to create a taper whereby the arms appear to extend to

and make contact with the surface supporting the infant cradle. This visually results in the arms

hemming in the seat surface that defines the front of the infant cradle of the ‘677 design patent.

The Baby Delight Napper clearly does not include this feature. The Baby Delight Napper includes

seams that begin from where the arms end, and that run perpendicular to the surface supporting

the bed. Notably, the seams of the Baby Delight Napper are disposed at the far corners of the bed

to allow the front panel to visibly extend across the entire width of the bed, as discussed above.

31. The following sets forth Figure 4 as shown in the ‘677 design patent:

32. As can be clearly seen in FIG. 4 of the ‘677 design patent reproduced above, the

infant cradle includes a curved profile that continuously extends from end to end (including the

seam at A), with the front having a relatively gentle curve towards the surface that supports the

infant cradle, shown generally at F. The Baby Delight Napper clearly does not have these features.

The Baby Delight Napper has a truncated profile whereby the curve abruptly ends at where the flat

front panel resides, generally shown at G. Of further note, the Baby Delight Napper includes a

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visible zipper at H, a feature which is absent from the claimed Infant Cradle of the ‘677 design

patent.

33. The following sets forth Figure 5 as shown in the ‘677 design patent:

34. As shown in FIG. 5 of the ‘677 patent reproduced above, the infant cradle includes

arms that extend perpendicular from the surface supporting the same, as generally indicated by the

red parallel lines. This gives the back portion/surface of the infant cradle a rectangular

shape/profile. The Baby Delight Napper clearly does not include this feature. The Baby Delight

Napper includes arms that slope inwards, with the slope becoming markedly more aggressive and

acute towards the peak of the arms, as generally demonstrated by the red & blue lines above. This

difference gives the Baby Delight Napper a trapezoidal shape which is substantially different than

the rectangular back of the ‘677 design patent.

35. FIG. 5 of the ‘677 design patent also shows the transition between the seam of the

support surface and the arms as curving downwards towards the surface supporting the cradle, as

shown at I. The arms in FIG. 5 thus visually end at the seam that outlines/defines the back

portion/surface. The Baby Delight Napper clearly does not include this feature. The transition of

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the Baby Delight Napper includes a seam line that slopes upwards, and meets the arms as generally

shown at J. This results in the arms visually ending before the back panel.

36. The Baby Delight Napper simply would not appear substantially the same as the

design set forth in the ‘677 patent to an ordinary observer.

37. As a result of the acts described above, a substantial controversy of sufficient

immediacy and reality exists to warrant the issuance of a declaratory judgment.

38. A judicial declaration is necessary and appropriate so that Baby Delight continue

to sell its Baby Delight Napper free from fear of frivolous patent infringement claims.

39. Baby Delight is entitled to a declaration pursuant to 28 U.S.C. §§ 2201 and 2202

that the Baby Delight Napper does not infringe the ‘677 design patent, as well as a declaration that

any claims asserted by Defendants arising out of alleged infringement of the ‘677 design patent

are preempted by Federal patent law.

COUNT II
DECLARATORY JUDGMENT THAT DEFENDANTS LACK STANDING TO ASSERT
A COPYRIGHT INFRINGEMENT CLAIM

40. Baby Delight incorporates the preceding paragraphs as if fully set forth herein.

41. 17 U.S.C. § 411 requires that any copyright claimant must have registered or

preregistered their copyright with the U.S. Copyright Office before they can bring suit.

42. Based on information and belief, neither Defendant owns a Federal copyright

registration for the warning graphic on hiccapop brand baby beds or any other portion of the

warning label.

43. Moreover, based on information and belief, neither Defendant owns a single

Federal copyright registration for any copyrightable material.

44. As a result of the acts described above, a substantial controversy of sufficient

immediacy and reality exists to warrant the issuance of a declaratory judgment.

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45. A judicial declaration is necessary and appropriate so that Baby Delight may utilize

its current labels free from the fear of frivolous copyright claims.

46. Accordingly, Baby Delight requests a declaration from this Court that Defendants

Clute and Keezio lack standing to assert a copyright infringement claim and that any claims arising

out of alleged copyright infringement are preempted by Federal copyright law.

COUNT III
DECLARATORY JUDGMENT THAT THE DEFENDANTS’ ASSERTED UNFAIR
COMPETITION CLAIM LACKS MERIT

47. Baby Delight incorporates the preceding paragraphs as if fully set forth herein.

48. “Standard Consumer Safety Specification for Infant Inclined Sleep Products”,

ASTM F3118-17a, is a voluntary standard.

49. The Baby Delight Napper includes a warning label that clearly states that use should

be discontinued when the baby can pull up on the sides, as required by the voluntary standard

ASTM F3118-17a.

50. The ASTM F3118-17a provides an age of “(approximately 5 months),” to provide

a general recommendation for ascertaining an approximate age at which the baby can pull up on

the sides. Based on information and belief, six (6) months of age is also an approximate age at

which the baby can pull up on the sides and is appropriate for warning labels on infant inclined

sleep products.

51. Upon information and belief, Keezio markets and sells its products exclusively

through the Amazon online retail sales platform. The alleged non-conforming warning label does

not appear on the Amazon page for the Baby Delight Napper, and therefore no unfair competition

could arise from the use of this label.

52. Upon information and belief, the hiccapop-branded product sold by Keezio that

competes with the Baby Delight Napper does not comply with the ASTM F3118-17a standard.

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53. Thus, Defendants do not believe in their own allegations that a violation of this

standard can amount to unfair competition as they too follow the same practice they have accused

Baby Delight Napper of following.

54. As a result of the acts described above, a substantial controversy of sufficient

immediacy and reality exists to warrant the issuance of a declaratory judgment.

55. A judicial declaration is necessary and appropriate so that Baby Delight may utilize

its current labels free from the fear of frivolous unfair competition claims.

56. Accordingly, Baby Delight requests a declaration from this Court that the unfair

competition claim asserted by Defendants Clute and Keezio based on the voluntary federal

standard ASTM F3118-17a lacks any basis under Federal or state law and, accordingly, Baby

Delight has not committed an act of unfair competition by virtue of not using the 5 months

language from the voluntary federal standard.

PRAYERS FOR RELIEF

WHEREFORE, Baby Delight respectfully requests that this Court:

(a) Enter Judgment in favor of Baby Delight on Count I and declare that Baby Delight

has not infringed and does not infringe, directly or indirectly, any claim of the ‘677

design patent and that any claims arising out of such alleged infringement are

preempted by Federal patent law;

(b) Enter Judgment in favor of Baby Delight on Count II and declare that Defendants

Clute and Keezio lack standing to assert a copyright infringement claim and that any

claims arising out of such alleged infringement are preempted by Federal copyright

law;

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(c) Enter Judgment in favor of Baby Delight on Count III and declare that Baby Delight

has not committed an act of unfair competition by virtue of not using the 5 months

language from the voluntary federal standard in its warning label;

(d) Declare this to be an exceptional case and award Baby Delight its costs, expenses,

and disbursements in this action, including reasonable attorney feeds, pursuant to 28

U.S.C. § 285; and

(e) Award Baby Delight any further and additional relief that this Court deems just and

proper.

JURY DEMAND

Baby Delight requests a trial by jury on all issues so triable.

Dated: October 18, 2019 Respectfully submitted,

BABY DELIGHT, INC.

By Its Attorneys,

/s/ Adam J. Chandler

Adam J. Chandler, Esq. (RI 6977)
Christopher T. Vrountas, Esq.*
*admitted in MA, NH and NC
Vrountas, Ayer & Chandler, P.C.
250 Commercial Street Suite 4004
Manchester, NH 03101
Phone: 603-782-8444
Fax: 603-518-7617
cvrountas@vaclegal.com
achandler@vaclegal.com

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JS 44 (Rev. 08/18) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

BABY DELIGHT, INC. LORNE JASON CLUTE,
KEEZIO GROUP, LLC
(b) County of Residence of First Listed Plaintiff Providence (RI) County of Residence of First Listed Defendant Contra Costa (CA)
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Adam J. Chandler, Vrountas, Ayer & Chandler, P.C., 250 Commercial Christopher W. Sweeney, Law Offices of Christopher W. Sweeney,
Street Suite 4004, Manchester, NH 03101, 603-935-9601 1300 Oliver Road Suite 300, Fairfield, CA 94534

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4
of Business In This State

’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5
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Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6

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 Case 1:19-cv-00559 Document 1-1 Filed 10/18/19 Page 2 of 2 PageID #: 16
JS 44 Reverse (Rev. 08/18)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
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II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
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citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.

IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.

V. Origin. Place an "X" in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket. PLEASE
NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to changes in
statue.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.