Opit v. Jinanmokeyaoshangmaoyouxiangongsi - Complaint

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Case 2:25-cv-00073-ASB Document 1 Filed 01/08/25 Page 1 of 13

INTELLECTUAL STRATEGIES
Danielle N. Byford, SBA #032131
16165 N. 83rd Ave, Suite 200
Peoria, AZ 85382
Trevor Bradford, (pro hac vice to be filed) Utah Bar No. 10942
1371 North 1075 W #6
Farmington, UT 84025

Phone: 801-756-5560
Email: danielle@intellectualstrategies.com
trevor@intellectualstrategies.com

Attorney for Plaintiffs


UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

SIMON OPIT, and


quzhouAluohadianzishangwuyouxiango VERIFIED COMPLAINT
ngsi, JURY TRIAL REQUESTED
Plaintiffs
v. Civil Case No.:
jinanmokeyaoshangmaoyouxiangongsi, Judge:
Defendant.

Plaintiffs hereby submit this complaint against Defendant(s) and alleges the following:

1. This is an action for infringement of Simon Opit’s U.S. Design Patent No.

D1,018,049 S (“Patented Pouch”) under the Patent Act, 35 U.S.C. § 271, based on

jinanmokeyaoshangmaoyouxiangongsi’s (“Defendant”) unauthorized commercial

manufacture, use, importation, offer for sale, and sale of Patented Foldable Tobacco Pipe

Pouch in the United States.

PARTIES

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2. Plaintiff, Simon Opit (“Opit”), is an individual who resides in Auckland, New

Zealand. Opit is a citizen of the United Kingdom.

3. Opit is the record owner of the Patented Pouch.

4. Plaintiff, quzhouAluohadianzishangwuyouxiangongsi (“Plaintiff Company”), is

a Chinese limited company and has its principal place of business in China. Plaintiff

Company sells its Patented Tobacco Pouch in Arizona.

5. Opit licensed the use of the ‘049 Patent to Plaintiff Company.

6. Upon information and belief, Defendant

jinanmokeyaoshangmaoyouxiangongsi is a Chinese corporation doing business in Arizona.

7. Upon information and belief, Defendant has sold infringing products in

Maricopa County, Arizona.

JURISDICTION AND VENUE

8. This court has jurisdiction over the subject matter of this action under 28

U.S.C. §§ 1331 and 1338(a).

9. Personal jurisdiction over Defendant is proper in this Court because of its

presence in Arizona, it has derived substantial revenue from the sales of its infringing

tobacco pouch in Arizona, and it has systematic and continuous business contacts with

Arizona.

10. On information and belief, this Court has general and specific personal

jurisdiction over Defendants because: (1) Defendants have (a) conducted substantial

business in the State of Arizona, (b) derived financial benefits from residents of the State of

Arizona, including by marketing and selling infringing products to residents of the State of

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Arizona and otherwise placing infringing products into the stream of commerce, with the

knowledge or understanding that such products are sold in the State of Arizona, including

within this district, (c) purposely availed themselves of the privilege of conducting business

within the State of Arizona, and (d) sought protection and benefits from the laws of the

State of Arizona; and (2) the causes of action arise directly from the Defendants’ business

contacts and other activities in the State of Arizona.

11. At all time relevant, Defendants acted under color of state law, and includes

claims under Arizona trademark infringement and unfair competition.

12. This action also includes claims for trademark infringement under Section

43(a) of the Lanham Act.

13. The nonmonetary remedy Plaintiffs seek will take place in Arizona, thus

venue is proper in Arizona.

STATEMENT OF FACTS

14. Simon Opit is the inventor of the Foldable Tobacco Pipe Pouch, United

States Design Patent Number US D1,018,049 S (“’049 Patent”), which patent was duly and

legally issued on March 19, 2024. Attached as Exhibit A is a true and correct copy of the

‘049 Patent.

15. The ‘049 Patent claims the ornamental design as shown and described in the

patent, including the foldable design and inside stitching and zipper teeth.

16. Opit is the owner of the entire right, title, and interest in the ‘049 Patent.

17. Plaintiff Company holds an exclusive license under the ‘049 Patent, including

the right to make, have made, use, develop, have developed, offer for sale, sell, and import

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products covered by the ‘049 Patent, and the right to assert, defend, maintain, and enforce

the ‘049 Patent.

18. Plaintiffs bring this lawsuit to protect the substantial goodwill that it has

developed over the past three years in its patented and trade dress protected pipe pouch.

Due to this lengthy use and Plaintiffs’ substantial investment in advertising and promotion,

Plaintiffs’ Pouch has gained a reputation as being a source of high-quality.

19. The goodwill and reputation for quality that Plaintiff has worked so hard to

cultivate has been and is being threatened by Defendant's actions.

20. Defendants, on the other hand, have unfairly attempted to gain an advantage

in the tobacco pouch market by infringe Plaintiffs’ rights and attempting to trade off

Plaintiffs’ ‘049 Patent and its reputation for high quality pouches.

21. Rather than develop their own product and branding identity, Defendants

have blatantly copied Plaintiff’s ‘049 Patent, thereby infringing the ‘049 Patent; and have

copied the case and other stuff, thereby infringing Plaintiff’s trade dress rights in the ‘049

Patent.

22. Defendant has and continues to make, use, and offer for sale the Foldable

Tobacco Pouch in the United States and import the Foldable Tobacco Pouch into the

United States. As shown below, the Foldable Tobacco Pouch includes key features from and

is virtually identical to the design claimed in the ‘049 Patent.

Opit’s ‘049 Patent Defendant’s Copycat Pouch

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23. An ordinary observer or purchaser would find the overall design of ‘049

Patent and Defendant’s Foldable Tobacco Pouch substantially similar and mistakenly

purchase the Foldable Tobacco Pouch. For example, the tri-fold design with the wrap

around, the inside zipper compartment, the stitching, and use of the center pockets are

exactly the same.

24. Defendants have known of the existence of the ’049 Patent and accompanying

products.

25. On September 25, 2024, Plaintiffs sent a cease-and-desist letter to Defendants

through the Amazon Buyer-Seller message platform.

26. On October 7, 2024, Plaintiffs filed a copyright complaint through the

Amazon platform, as Defendants had duplicated Plaintiffs product description in violation

of Plaintiffs copyright.

27. Defendants never followed up after these communications and complaints

were submitted.

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28. To stop Defendants’ unlawful conduct and obtain compensation for the

violations that have already occurred, Plaintiffs bring this Complaint against Defendants for

patent infringement in violation of 35 U.S.C. § 271, et seq., and federal trade dress

infringement in violation of 15 U.S.C. § 1125, et seq.

29. Defendants use of their Foldable Tobacco Pouch is confusing similar to

Plaintiff’s ‘049 Patent. This is causing actual consumer confusion. For example, on

November 27, 2024, a consumer reached out to Plaintiff and mentioned they purchased

Defendant’s Copycat Pouch thinking it was Plaintiffs. See Exhibit B.

30. Unless Defendant is enjoined from using its infringing Foldable Tobacco

Pouch, such use will continue to cause consumer confusion and will cause irreparable harm

to Plaintiffs.

31. Plaintiffs have attempted to resolve this issue with Defendants without

resorting to the court, but Defendants have not responded to any of Plaintiffs

correspondence or efforts to communicate. Specifically, Plaintiffs have sent direct messages

through the Amazon platform, emailed a cease and desist letter to the Defendants’ registered

email address, and also text messaged the Defendants’ registered contact number.

32. Plaintiff is suffering harm from Defendants’ continuing infringement and

unlawful conduct.

33. Plaintiff will suffer severe economic loss as a result of Defendant’s

unauthorized use of the tobacco pouch.

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34. This action seeks injunctive relief, damages, and other appropriate relief

arising from Defendant’s willful acts of trade dress infringement, patent infringement and

unfair competition.

FIRST CLAIM FOR RELIEF

Patent Infringement – 35 U.S.C. § 271

35. Plaintiffs repeat and reallege the above paragraphs, as if fully set forth herein.

36. Defendant has been and is infringing the ‘049 Patent by making, using, selling,

or offering for sale in the United States, or importing into the United States, including within

this judicial district, Foldable Tobacco Pouch in violation of 35 U.S.C. § 271(a).

37. Defendant has been and is inducing infringement of the ‘049 Patent by

actively and knowingly inducing others to make, use, sell, offer for sale, or import the

Foldable Tobacco Pouch that embodies or uses the invention claimed in the ‘049 Patent in

violation of 35 U.S.C. § 271(b).

38. Defendant's infringement has been and continues to be knowing, intentional,

and willful.

39. Defendant's acts of infringement of the ‘049 Patent have caused and will

continue to cause Plaintiffs damages for which Plaintiffs are entitled to compensation

pursuant to 35 U.S.C. §§ 284 or 289.

40. Defendant's acts of infringement of the ‘049 Patent have caused and will

continue to cause Plaintiffs immediate and irreparable harm unless such infringing activities

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are enjoined by this Court pursuant to 35 U.S.C. § 283. Plaintiffs have no adequate remedy at

law.

41. This case is exceptional and, therefore, Plaintiffs are entitled to an award of

attorney fees pursuant to 35 U.S.C. § 285.

SECOND CLAIM FOR RELIEF

Unfair Competition

42. Plaintiffs repeat and reallege the above paragraphs, as if fully set forth herein.

43. Defendants are engaged in wrongful and deceptive practices that directly

interfere with Plaintiffs’ business operations and damage its commercial reputation and

goodwill.

44. Upon information and belief, Defendants’ actions have caused consumer

confusion or are likely to produce consumer confusion.

45. Defendants’ acts include misappropriating the ‘049 Patent to gain an unfair

competitive advantage; marketing, selling, and distributing its Foldable Tobacco Pouch that

infringes upon the ‘049 Patent; and diverting Plaintiffs’ customers and business

opportunities through deceptive means.

46. Defendants’ actions are unlawful and were undertaken willfully, maliciously,

and with the intent to harm Plaintiff’s business and unjustly enrich Defendants.

47. Upon information and belief, Defendant’s actions in copying the ‘049 Patent

have caused the consumer public to be confused or is likely to cause the public to be

confused and deceived as to the source and quality of the goods.

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48. Plaintiffs have no adequate remedy at law for the damages caused thereby and

requests an order enjoining Defendants.

49. Defendants’ acts of unfair competition are contrary to the public interest and

constitute a violation of Arizona common law and applicable statutes protecting businesses

from unfair and deceptive trade practices.

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DEMAND FOR RELIEF

WHEREFORE, Plaintiffs demand judgment against Defendant(s), and each of them

(if applicable) for the following dollars, interest, costs and expenses incurred herein, or non-

monetary remedy, including reasonable attorneys’ fees, and for such other and further relief

as the Court may deem just and proper.

A. Granting a temporary restraining order, preliminarily injunction, and

permanently enjoining Defendants, its employees, agents, officers, directors, attorneys,

successors, affiliates, subsidiaries, and assigns, and all of those in active concert and

participation with any of the foregoing persons or entities, from infringing, contributing to the

infringement of, or inducing infringement of the ‘049 Patent;

B. Adjudging that Defendant(s) have infringed the ‘049 Patent in violation of 35

U.S.C. § 271(a);

C. Ordering Defendants to account and pay damages adequate to compensate

Plaintiffs for Defendants’ infringement of ‘049 Patent, including for any infringing acts not

presented at trial and pre-judgment and post-judgment interest and costs, pursuant to 35

U.S.C. § 284;

D. Ordering disgorgement of Defendants’ ill-gotten gains from the sale of their

counterfeit and infringing product, and awarding Plaintiffs all of Defendants’ total profits

pursuant to 35 U.S.C. § 289 (awarding Plaintiffs Defendants’ profits);

E. Ordering that the damages award be increased up to three times the actual

amount assessed, pursuant to 35 U.S.C. § 284;

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F. Declaring this case exceptional and awarding Plaintiff its reasonable attorneys'

fees, pursuant to 35 U.S.C. § 285; and

G. Grant other such relief as the Court deems just and proper.

DEMAND FOR JURY TRIAL

Pursuant to 38(b) of the Fed. R. of Civ. Pro., Plaintiff hereby demands trial by jury

on all issues raised by the Complaint.

RESPECTFULLY SUBMITTED this 18th day of December 2024.

INTELLECTUAL STRATEGIES

/s/Danielle N. Byford

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Verification

I, Simon Opit, declare as follows:

1. I am a Plaintiff in the present case and citizen of the United Kingdom.

2. I have personal knowledge of myself and of the actions that are set out in the

foregoing Verified Complaint, and if called on to testify I would competently testify

as to the matters stated herein.

3. I have personal knowledge of Defendant’s activities including those set out in the

foregoing Verified Complaint, and if called on to testify I would competently testify

as to the matters stated herein.

4. I verify under penalty of perjury under the laws of the United States of America that

the factual states in the Verified Complaint are true and correct. 28 U.S.C. § 1746.

Executed on:__December 18, 2024_________________

_________________________
Simon Opit

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