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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA (Fort Lauderdale Division)

DRYMISTAT, INC., a Florida corporation, and STANLEY OSTER, an individual, Plaintiffs, v. DOS CABALLOS CIGARS, LLC, a Florida corporation, BEE GLAMOROUS, LLC, a Florida corporation, CARLOS A. ALVAREZ, JR., an individual, and BRYAN TORRES an individual, Defendants.

CASE NO:

/ COMPLAINT Plaintiffs, DRYMISTAT, INC., a Florida corporation, and STANLEY OSTER, an individual (herein collectively Plaintiffs) hereby file this complaint against Defendants, DOS CABALLOS CIGARS, LLC, a Florida corporation, BEE GLAMOROUS, LLC, a Florida corporation, CARLOS A. ALVAREZ, JR, an individual, and BRYAN TORRES, an individual, (herein collectively Defendants) and state as follows: JURISDICTION AND VENUE 1. This is a complaint for patent infringement pursuant to 35 U.S.C. 281; false

patent marking pursuant to 35 U.S.C. 292; counterfeiting of Plaintiffs federally registered trademark, 15 U.S.C. 1051-1127 (the Federal Trademark Act, herein the Lanham Act); and

federal trademark infringement of an unregistered mark pursuant to 15 U.S.C. 1125 (Section 43(a) of the Lanham Act). 2. Jurisdiction is expressly conferred on this Court by 28 U.S.C. 1331, 1338(a) and

1338(b). Jurisdiction is also expressly conferred on this Court by 15 U.S.C. 1121. 3. This Court has personal jurisdiction over the identified Defendants because

Defendants do business in Florida by selling infringing and counterfeit humidifiers to consumers in the State of Florida and to others throughout the U.S. in interstate commerce, and Defendants have perpetrated acts of patent infringement and trademark counterfeiting in the State of Florida. 4. Venue is proper in the United States District for the Southern District of Florida

pursuant to 28 U.S.C. 1391 and 1400. THE PARTIES 5. Plaintiff, DRY MISTAT, INC. (herein DRYMISTAT), is a Florida corporation,

with principal place of business at 2707 Gateway Drive, Pompano Beach, FL 33069. 6. Plaintiff, STANLEY OSTER (herein OSTER), is an individual, with a place of

business in Florida at 2707 Gateway Dr., Suite E-103, Pompano Beach, FL 33069. OSTER is the patent owner, an owner of DRYMISTAT and his company manufactures genuine DRYMISTAT cigar humidifiers pursuant to his patent and under his control, and under the DRYMISTAT federally registered trademark. 7. Defendant, DOS CABALLOS CIGARS, LLC. (herein DCC), is a Florida

corporation, with a principal place of business at 914 SW 140 Ave Miami, FL 33184. Upon information and belief, Defendant DCC sells and manufactures cigar humidifiers to consumers throughout the U.S. in interstate commerce and within the jurisdiction of this Court.

8.

Defendant, BEE GLAMOROUS, LLC. (herein BG), is a Florida corporation,

with a principal place of business at 914 SW 140 Ave Miami, FL 33184. Upon information and belief, Defendant BG sells cigar humidifiers to consumers throughout the U.S. and within the jurisdiction of this Court. 9. Defendant, CARLOS A. ALVAREZ, JR. (herein ALVAREZ), is the Managing

Member of DCC and BG. Upon information and belief, ALVAREZ actively participates in, controls, and benefits from the business of DCC and BG. Upon information and belief, ALVAREZ directed, actively participated in, controlled and benefitted from the conduct of DCC and BG as alleged in this Complaint. In addition, ALVAREZs conduct was in furtherance of DCC and BGs goals, inured to the benefit of DCC and BG, and was within the course and scope of ALVAREZs employment or agency relationship with DCC and BG. 10. Upon information and belief, Defendant BRYAN TORRES (herein "TORRES")

is a Managing Member of DCC. Upon information and belief, TORRES actively participates in, controls, and benefits from the business of DCC. Upon information and belief, TORRES directed, actively participated in, controlled and benefitted from the conduct of DCC as alleged in this Complaint. In addition, TORRES conduct was in furtherance of DCCs goals, inured to the benefit of DCC, and was within the course and scope of TORRES employment or agency relationship with DCC. FACTS RELATIVE TO ALL COUNTS 11. OSTER is the owner of U.S. Patent No. 5,829,452 to Oster (herein the 452

Patent), attached as Exhibit A, pg. 001, entitled HUMIDIFICATION DEVICE. The patented cigar humidifier, when loaded with water, is placed in a cigar humidor. The patented cigar

humidifier releases water vapor and keeps the cigars in the humidor moist. The humidor prevents the cigars from drying out. 12. 13. The 452 Patent is valid, subsisting and in full force and effect. DRYMISTAT is the owner of the Federal Trademark Registration No. 2,185,605

(herein the 605 Mark), attached as Exhibit B, for the mark DRYMISTAT (herein, the federally registered mark is referred to as DRYMISTAT), for humidifiers for preserving perishables, namely, food and tobacco products. The mark is incontestable under 15 U.S.C. 1065. Exhibit C is a photo of the genuine DRYMISTAT product. 13. Upon information and belief, DCC facilitates and controls the manufacture and

sale of infringing cigar humidifiers which infringe the 452 Patent and which carry a counterfeit mark identical to DRYMISTAT. DCCs cigar humidifiers infringe the 452 Patent and, to further confuse and deceive the public, DCC has selected and is using a counterfeit of the DRYMISTAT mark on its product. Upon information and belief, DCC manufactures or

contracts out the manufacture of infringing cigar humidifier. DCC and BG sell and offer for sale cigar humidifiers which infringe the 452 Patent. 14. Additionally, DCC and BG sell infringing humidifiers with the Oster 452 Patent

number prominently printed on the product. The use of the 452 Patent number is false patent marking which further confuses and deceives the public. 15. The manufacture, use, sale and offer to sell the accused cigar humidifiers by DCC

and BG infringe the 452 Patent. 16. On or about September 7, 2011, DRYMISTAT purchased the accused product

from DCC. DCC shipped the patent infringing, falsely patent marked, counterfeit goods to DRYMISTAT. See Exhibit D.

17.

On or about September 21, 2011, DRYMISTAT purchased the accused product

from BG. BG shipped the infringing product, falsely patent marked product with the counterfeit mark to DRYMISTAT. See Exhibit E. 18. For over 14 years, DRYMISTAT has continuously used in interstate commerce

the name and trademark DRYMISTAT in connection with its cigar humidifiers. 19. Since at least as early as 1997, DRYMISTAT has used as a trademark in

interstate commerce the distinctive DRYMISTAT cigar band label Design in connection with the manufacture and sale of cigar humidifiers. See Exh. C. The cigar band label design for the cigar humidifier is unique to DRYMISTAT and consumers recognize genuine DRYMISTAT goods due to the DRYMISTAT Design, namely, the unique cigar band label design on a cigar humidifier. 20. Plaintiffs have sold in excess of $2,000,000 worth of products under its

DRYMISTAT mark and the DRYMISTAT cigar label Design mark. Plaintiffs have expended substantial sums and devoted substantial time and effort to advertise, promote, and otherwise market their products and services to the general public under its trademarks throughout the United States, including the State of Florida. Long prior to the acts of Defendants complained of herein, the DRYMISTAT marks became and still are distinctive. 21. As a result of Plaintiffs aforesaid long and extensive use, sales, advertising, and

promotion, the DRYMISTAT marks have acquired distinctiveness and represent a highly valuable goodwill owned by Plaintiffs. 22. Defendants, with knowledge of the widespread recognition and fame of Plaintiffs

products among the relevant segment of the market, and with the specific intent to exploit that recognition and fame, have marketed and sold counterfeit copies of Plaintiffs products

that bear the DRYMISTAT marks. Defendants intend that their ultimate purchasers believe that DCC and BGs counterfeit DRYMISTAT products are made by Plaintiffs, or that persons who see and use the DCC and BG's counterfeit DRYMISTAT products will believe that those products emanate from the Plaintiffs. 23. Defendants blatantly (a) mark its goods with a counterfeit DRYMISTAT mark,

and (b) sell and distribute such counterfeit goods into the marketplace, and even take steps to mark their goods with a in conjunction with the counterfeit mark, despite not having any federal trademark rights. (See Exh. D and E). Defendants also boldly falsely mark their goods with DRYMISTATs patent number. Defendants sell the counterfeit infringing goods through multiple channels, including their own website (Exhibit F), Amazon.com (Exhibit E), and eBay.com (Exhibit G). 24. All conditions precedent to this action have occurred, been performed, or have

been waived by Defendants.

COUNT I - PATENT INFRINGEMENT 25. forth herein. 26. 27. This is an action for patent infringement pursuant to 35 U.S.C. 281. Defendants DCC and BG manufacture and are engaged in the sale, and the Plaintiffs realleges the allegations set forth in paragraphs 1 through 24 as set

offering for sale, of cigar humidifier which infringe the 452 Patent. 28. Plaintiffs have not authorized nor have permitted DCC or BG to manufacture or

sell humidification devices which infringe the claims of the 452 Patents.

29.

DCC and BG's sale of humidification devices without a license from Plaintiffs

violates Plaintiffs' patent rights. 30. Upon information and belief, DCC and BG's infringement of the 452 Patent is

intentional and willful, as DCC and BG knows of the 452 Patent and has specific knowledge of Plaintiffs' patent rights. This knowledge is clear because Defendants mark their goods with the DRYMISTAT patent number. 31. Upon information and belief, DCC and BG will continue to infringe the 452

Patent unless restrained by this Court. 32. 33. DCC and BG's infringement of the 452 Patent is causing Plaintiffs damage. DCC and BG's infringement of the 452 Patent is causing Plaintiffs irreparable

harm that cannot be adequately compensated by a monetary damage award. 34. Defendants will, unless preliminarily and permanently restrained and enjoined,

continue to act in an unlawful manner complained of herein, to Plaintiffs irreparable harm. COUNT II - FALSE PATENT MARKING 35. forth herein. 36. This is an action for false patent marking pursuant to 35 U.S.C. 292. The Patent Plaintiffs realleges the allegations set forth in paragraphs 1 through 34 as set

Statute states Whoever marks upon, or affixes to, or uses in advertising in connection with any unpatented article the word patent or any word or number importing the same is patented, for the purpose of deceiving the public ... 35 U.S.C. 292(a). The statute further states A person who has suffered a competitive injury as a result of a violation of this section may file a civil 19 action in a district court of the United States for recovery of damages adequate to compensate for

the injury. 35 U.S.C. 292(b) (see the America Invents Act of 2011, signed into law in September, 2011). 37. 38. DCC and BG label the infringing product with the 452 Patent Number. The infringing DRYMISTAT cigar humidifier manufactured and sold by DCC

and BG are not patented. 39. Upon information and belief, DCC and BG's false marking of its infringing

DRYMISTAT cigar humidifiers is intentional and willful, as DCC and BG knows (a) they do not have a patent on the product; (b) they do not have a license from Plaintiffs for the 452 Patent; and (c) Plaintiffs have not authorized nor permitted DCC or BG to manufacture and/or sell the patented product. 40. Upon information and belief, DCC and BG falsely mark their infringing product

as being patented in order to deceive the public. 41. Upon information and belief, DCC and BG will continue to falsely mark its

humidifiers unless restrained by this Court. 42. 43. DCC and BG's false marking of its humidifiers is causing Plaintiffs damage. DCC and BG's false marking of its humidifiers is causing Plaintiffs irreparable

harm that cannot be adequately compensated by a monetary damage award. COUNT III COUNTERFEIT TRADEMARK INFRINGEMENT -15 U.S.C. 1114(1) 44. above. 45. Plaintiff is the owner of Federal Trademark Registration 605. (See Exh. B). Plaintiff realleges and incorporates the allegations set forth in paragraphs 1-43

46.

Defendants, with full knowledge of Plaintiffs federally registered DRYMISTAT

trademark, and its unregistered cigar label band design mark, have knowingly and willfully infringed upon Plaintiffs Federal Trademark by using and counterfeiting Plaintiffs mark for use in Defendants' enterprise. Defendants' mark is identical to Plaintiffs mark. Defendants use Plaintiffs federally registered mark in a manner to confuse and deceive the public. Defendants use, without the consent or authorization of Plaintiffs, constitutes intentional trademark infringement. Defendants' unauthorized use of Plaintiffs registered trademark DRYMISTAT is likely to cause confusion and mistake in the minds of the consuming public, and in particular, falsely create the impression that goods offered by Defendants are authorized, sponsored, or otherwise approved by Plaintiff, when in fact they are not and have never been. 47. By reason of Defendants' use of a mark which is identical and confusingly similar

to Plaintiffs registered trademark, Defendants have infringed upon Plaintiffs rights in the registered mark. 48. The good will and favorable reputation existing in Plaintiffs mark is a valuable

asset belonging to Plaintiffs which does not lend itself to exact quantification but has substantial monetary value. The acts complained of herein have caused Plaintiffs harm, and has the potential for inflicting substantially greater injury to Plaintiffs trademark and good will. 49. Plaintiffs have suffered and continue to suffer irreparable harm and damage as a

result of Defendants' conduct set forth above, including a lessening of the good will residing in Plaintiffs trademark. 50. Defendants will, unless preliminarily and permanently enjoined, continue to act in the unlawful manner complained of herein, to Plaintiffs irreparable harm. Plaintiff does not have an adequate remedy at law to compensate it for the injuries suffered and threatened as a result of

Defendants' conduct. Monetary damages are not adequate to compensate Plaintiffs for these violations of the Lanham Act. COUNT IV : TRADEMARK INFRINGEMENT-UNREGISTERED MARK 51. Plaintiffs reallege and incorporate herein the allegations of paragraphs 1- 50 above. 52. This is an action for violations of the Lanham Act 43(a), 15 U.S.C. 1125(a), for

trademark infringement of an unregistered trademark, the DRYMISTAT and cigar band label Design (herein the DRYMISTAT Design). See Exh. C. 53. Defendants use a design mark which is identical to the DRYMISTAT Design

mark. With the use of the identical mark on infringing counterfeit humidifiers, DCC and BG are engaged in trademark infringement because, upon information and belief, DCC and BGs products are confusingly similar to the genuine DRYMISTAT Design goods. Defendants falsely mark their goods and services and confuse the public with respect to genuine DRYMISTAT Design goods when, in fact, those DCC and BG goods are not approved nor authorized by Plaintiffs, the owner of the DRYMISTAT Design mark. 54. With the use of an identical DRYMISTAT Design on its infringing counterfeit

products, DCC and BG confuse the public with respect to their goods as being either (i) genuine DRYMISTAT Design goods when, in fact, those goods are not made nor authorized by Plaintiffs, and/or (ii) associated, approved or authorized by Plaintiffs. 55. DCC an BG's actions with respect to the infringing counterfeit DRYMISTAT

Design goods, falsely associate or falsely suggest to consumers, that they are affiliated with the genuine DRYMISTAT Design mark and brand, and DCC and BG palms off their goods as genuine, approved DRYMISTAT Design goods. Consumers are either confused or are likely to be confused by the use of these two identical or substantially similar marks.

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56.

DCC and BG's actions falsely associate and falsely suggest to consumers, that

they are affiliated with Plaintiffs, due to the use of DRYMISTAT Design. 57. The acts by DCC and BG, to ride the coat tails of Plaintiffs marketing efforts

with respect to the DRYMISTAT Design mark and product, are violations of the Lanham Act. 58. Plaintiffs have not authorized DCC or BG to use the DRYMISTAT Design mark

or any confusingly similar variation of DRYMISTAT Design in any manner. 59. Consumers will confuse DCC and BG's use of the DRYMISTAT Design with

the Plaintiffs genuine DRYMISTAT Design goods because both are used on identical products and the marks are identical or confusingly similar. 60. 61. This confusion will continue unless enjoined by the Court. DCC and BG's use of Plaintiffs design mark was and is willful, deliberate,

intentional and in bad faith, in light of the identical reproduction of the mark on the product as it relates to style, size and placement on the product. 62. DCC and BG, with specific and personal knowledge of the widespread

recognition and fame of DRYMISTAT Design goods among the relevant segment of the market, and upon information and belief, with the specific intent to exploit that recognition and fame, marketed and offered for sale a counterfeit product using an identical and confusingly similar mark. Upon information and belief, DCC and BG intended that their customers believe that their infringing goods are sponsored, approved by or emanates from Plaintiffs. 63. Plaintiffs have been damaged and will be irreparably damaged by DCC and BG's

unauthorized use of its trademark. Monetary damages cannot fully compensate Plaintiffs for these Lanham Act violations.

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64. Defendants.

Plaintiffs are being irreparably harmed by these acts of trademark infringement by

Relief WHEREFORE, Plaintiffs demand judgment against Defendants DOS CABALLOS CIGARS, LLC, a Florida corporation, BEE GLAMOROUS, LLC, a Florida corporation, CARLOS A. ALVAREZ, JR, an individual, and BRYAN TORRES an individual as follows: I. That an injunction be issued enjoining and restraining Defendants and its officers, agents, servants, employees and attorneys and all those in active concert or participation with them, from: A. B. infringing the 452 Patent; manufacturing, importing, selling, offering to sell, or using any humidification device which infringe the 452 Patent; C. that DCC and BG be required to file with the Court and to serve on Plaintiffs's attorneys within thirty (30) days after service of any permanent injunction issued herein, or within such reasonable time as the Court shall direct, a report in writing and under oath setting forth in detail the manner and form in which DCC and BG has complied with such injunction; D. infringing the 605 Mark, and continuing use of any DRYMISTAT marks and any mark confusingly similar to DRYMISTAT in any domain name, as a meta tag, in meta data, as a header on page listing competitive goods and as a key word to trigger ads on search engines or social media;

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E.

Committing any act which constitutes conduct likely to cause confusion, mistake or deception with respect to DRYMISTAT, INC. or the DRYMISTAT marks;

F.

Making any statement or representation or performing any act which is likely to lead the public or individual members of the public to believe that Defendants are, in any manner, directly or indirectly, associated or connected with, or licensed, authorized, or approved by or on behalf of Plaintiffs, or to believe that any goods offered for sale by Defendants are goods sold or offered by Plaintiffs; and

G. II.

Asserting any association with Plaintiffs.

Directing that DCC and BG deliver up for destruction within thirty (30) days all infringing humidification devices, and deliver up for destruction all hang tags, labels, boxes, packages, advertisements, marketing materials and other marketing literature (including but not limited to web sites, letterhead, business cards, promotional CDs, and brochures) in their possession or under their control (A) describing or depicting infringing devices; (B) using the term patented or patent; (C) using any of the DRYMISTAT marks or confusingly similar variations.

III.

That the Court award damages adequate to compensate for Defendants patent infringement, either lost profits or an amount not less than a reasonable royalty, for the use made of Plaintiffs' patented inventions, together with interest, costs and pre-judgment interest, and that the Court enter judgment against Defendants for such damages pursuant to 35 U.S.C. 284.

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IV.

That the Court enter a finding that the infringing activity of Defendants has been willful and deliberate, and that this is an exceptional case pursuant to 35 U.S.C. 285.

V.

That the Court treble the compensatory patent damage award based upon such willful infringement, pursuant to 35 U.S.C. 284 and award Plaintiffs attorneys fees and costs due to such willful infringement.

VI.

Order Defendants to pay over and account to Plaintiffs for all gains, profits, and advantages derived from their infringement of the 452 Patent;

VII.

Fine Defendants and each Defendant individually $500.00 for each humidifier sold in connection with a patented product per 35 U.S.C. 292 and award Plaintiff damages for such competitive injury due to such false marking.

VIII.

Award reasonable attorney fees to Plaintiff pursuant to 35 U.S.C. 285 and 15 U.S.C. 1117(a);

IX. X.

Award costs and expenses to Plaintiff pursuant to 35 U.S.C. 284; That Plaintiffs be awarded compensatory damages and treble damages for willful trademark infringement under 15. U.S.C. 1117.

XI.

Award Plaintiffs statutory damages for counterfeit products in an amount not more than $2,000,000 per type of goods, per 15 U.S.C. 1117(c).

XII.

Entering an order that this Court retain jurisdiction of this action for the purpose of enabling Plaintiffs to apply to the Court at any time for such further orders and interpretation or execution of any order entered in this action, for the modification of any such order, for the enforcement or compliance therewith and for the punishment of any violations thereof.

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XIII.

Award to Plaintiffs such other and further relief as the Court may deem just and proper, together with the costs and disbursements which Plaintiffs has incurred in connection with this action.

PLAINTIFFS demand a jury trial. Dated: Oct. 6, 2011 Respectfully submitted, By: /RobertKain/ Robert C. Kain, Jr., Esq. (266760) RKain@ComplexIP.com Darren Spielman, Esq. (10860) DSpielman@ComplexIP.com Kain & Associates, Attorneys at Law, P.A. 900 Southeast 3rd Avenue, Suite 205 Fort Lauderdale, Florida 33316 Telephone: (954) 768-9002 Facsimile: (954) 768-0158
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