R and A Synergy V Walmart - Complaint

Case 2:19-cv-02587 Document 1 Filed 04/04/19 Page 1 of 26 Page ID #:1
1 AVYNO LAW P.C.

Edward F. O’Connor, Esq. (SBN 123398)
2 Email: efo@avynolaw.com
3 Jennifer H. Hamilton, Esq. (SBN 220439 )
Email: jhh@avynolaw.com
4 Jan A. Sundberg, Esq. (SBN 169186)
5 Email: jas@avynolaw.com
Shawn B. Hussain, Esq. (SBN 315872)
6 Email: sbh@avynolaw.com
7 6345 Balboa Blvd., Suite 208, Building I
Encino, CA 91316
8 Tel.: (818) 654-8840
9 Fax: (818) 332-4205
10 Attorneys for Plaintiff

11 R and A Synergy, LLC
12
13 UNITED STATES DISTRICT COURT
14 FOR THE CENTRAL DISTRICT OF CALIFORNIA
15 WESTERN DIVISION
16 R AND A SYNERGY LLC, a CASE NO.: 2:19-CV-2587
17 California limited liability company,

COMPLAINT FOR PATENT AND
TRADEMARK INFRINGEMENT
18 Plaintiff, (Patent Infringement, Trademark
19 Infringement and Unfair Competition and
vs. False Designation of Origin)
20
DEMAND FOR TRIAL BY JURY
21
WALMART, INC., a Delaware
22 Corporation; and WAL-MART
23 STORES, INC., a Delaware
Corporation
24 Defendants.
25
26
27
28
COMPLAINT
1 Plaintiff R and A Synergy, LLC (“Plaintiff”), by and through its counsel,

2 Avyno Law P.C., in its complaint against Walmart, Inc. and Wal-Mart Stores, Inc.,
3 (collectively, “Defendants Walmart”), alleges as follows:
4 PARTIES
5 1. Plaintiff is a California limited liability corporation with its principal
6 place of business in Los Angeles County, CA.
7 2. Defendant Walmart, Inc., is a Delaware corporation with its principal
8 places of business at 702 SW 8th Street, Bentonville, AR 72716-0160.
9 3. Defendant Wal-Mart Stores, Inc., is a Delaware corporation with its
10 principal places of business at 702 SW 8th Street, Bentonville, AR 72716-0160.
11 4. Defendants Walmart maintains multiple physical retail stores in the
12 Los Angeles area and owns, operates and controls, directly or indirectly,
13 www.walmart.com.
14 JURISDICTION AND VENUE
15 5. This claim is for patent infringement under 35 U.S.C. § 271 and 281-
16 285, for trademark infringement under the Lanham Act, 15 U.S.C. §§ 1114 and
17 1125(a).
18 6. This Court has original jurisdiction over this controversy pursuant to
19 28 U.S.C. §§ 1331 and 1338 and 15 U.S.C. §§ 1121 and 1125.
20 7. This Court has jurisdiction over the state law claims in this action
21 pursuant to 28 U.S.C. Sections 1338 and 1367.
22 8. Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391(b) and (c)
23 and/or 1400(b).
24 9. This Court has personal jurisdiction over Defendants Walmart.
25 Defendants Walmart regularly and continuously do business in this district and
26 have infringed or induced infringement, and continue to do so, in this district. In
27 addition, the Court has personal jurisdiction over Defendants Walmart because
28 minimum contacts have been established with the forum and the exercise of
2
COMPLAINT
1 jurisdiction would not offend traditional notions of fair play and substantial justice.
2 FACTUAL BACKGROUND
3 Plaintiff’s Intellectual Property
4 10. Plaintiff makes and sells unique patented slip-on under sleeves made
5 to be worn under sleeveless and strapless dresses under the brand name SLEEVEY
6 WONDERS (“Sleevey Wonders Undersleeves”) and has made, sold and/or
7 licensed Sleevey Wonders Undersleeves for sale, continuously and without
8 interruption since December 2011.
9 11. Plaintiff owns U.S. Trademark Registration No. 3,890,712 for the
10 mark SLEEVEY WONDERS in connection with women's clothing, namely,
11 attachable sleeves for garments (the “Trademark”), which registered December 14,
12 2010. A true and correct copy of registration of the Trademark (Registration No.
13 3,809,712) is attached as Exhibit A.
14 12. Plaintiff provides notice of its registration of the Trademark to
15 consumers by including “Sleevey Wonders®” in connection with the sale of all
16 products and the advertising of product for sale on its website
17 (www.sleeveywonders.com).
18 13. On February 5, 2013, U.S. Patent No. 8,365,313 (the “’313 Patent”),
19 titled REVERSIBLE SLEEVED-GARMENT ACCESSORY, was issued to
20 inventor Ruth Ann Greenblat, and Plaintiff as assignee, who is the sole owner of
21 the ’313 Patent. A true and correct copy of the ’313 Patent is attached as Exhibit
22 B.
23 14. On September 9, 2014, U.S. Patent No. 8,826,465 (the “’465
24 Patent”), titled REVERSIBLE SLEEVED-GARMENT ACCESSORY, was issued
25 to inventor Ruth Ann Greenblat, and Plaintiff as assignee, who is the sole owner of
26 the ’465 Patent. A true and correct copy of the ’465 Patent is attached as Exhibit
27 C. The ’313 Patent and the ’465 Patent may be collectively referred to herein as
28 the “Utility Patents”.
3
COMPLAINT
1 15. On October 18, 2011, U.S. Patent No. D646,869 (the “D’869 Design
2 Patent”), titled GARMENT, was issued to inventor Ruth Ann Greenblat, and
3 Plaintiff as assignee, who is the sole owner of the D’869 Design Patent. A true and
4 correct copy of the D’869 Design Patent is attached as Exhibit D.
5 16. The D’869 Design Patent generally covers the claimed product below:
6
7
8
9
10
11 17. On April 26, 2016, U.S. Patent No. D754,420 (the “D’420 Design
12 Patent”), titled REVERSIBLE SLEEVED GARMENT, was issued to inventor
13 Ruth Ann Greenblat, and Plaintiff as assignee, who is the sole owner of the D’420
14 Design Patent. A true and correct copy of the D’420 Patent is attached as Exhibit
15 E.
16 18. The D‘420 Design Patent generally covers the claimed product below:
17
18
19
20
21
22
23 19. On April 3, 2018, U.S. Patent No. D814,146 (the “D’146 Design
24 Patent”), titled REVERSIBLE SLEEVED GARMENT, was issued to inventor
25 Ruth Ann Greenblat, and Plaintiff as assignee, who is the sole owner of the D’146
26 Design Patent. A true and correct copy of the D’146 Design Patent is attached as
27 Exhibit F.
28 //
4
COMPLAINT
1 20. The D’146 Design Patent generally covers the claimed product below.
2
3
4
5
6
7
8 The D’869 Design Patent, D’420 Design Patent and D’146 Design Patent
9 may be collectively referred to herein as the “Design Patents”.
10 21. Plaintiff provides notice of its Utility Patents and Design Patents by
11 marking the hangtags sold with the products with the relevant patent numbers and
12 by placing notice of its Utility Patents and Design Patents on its website
13 (www.sleeveywonders.com) which advertises and sells its products.
14 22. Plaintiff also has numerous copyrighted photos on its website
15 (www.sleeveywonders.com) that its uses to sell its SLEEVEY WONDERS
16 products and its Sleevey Wonders Undersleeves, all of which depict Plaintiff’s
17 original products, and all of which are marked with copyright notices on the
18 bottom of each page of Plaintiff’s website (the “Product Photos”). Representative
19 images of copyrighted Product Photos are illustrated on Exhibit G.
20 Walmart’s Unlawful and Infringing Activity
21 23. On March 20, 2019, Plaintiff was notified by a customer that she has
22 purchased four products at www.walmart.com that were advertised and sold to her
23 under the brand SLEEVEY WONDERS believing that they were Sleevey Wonders
24 Undersleeves, but when she received the products, she discovered that they were,
25 in fact, not Sleevey Wonders Undersleeves. Rather, the products she received
26 were highly inferior knock-off products. The customer represented to Plaintiff that
27 she gave notice to Defendants Walmart that they were selling knock-off products
28 branded as Sleevey Wonders Undersleeves.
5
COMPLAINT
1 24. A search of Defendant Walmart’s website at www.walmart.com

2 reveals that Defendants Walmart are selling a number of imitation or knock-off
3 Sleevey Wonders Undersleeves products that infringe one or more of Plaintiff’s
4 Utility Patents and Design Patents, and at least five different products that not only
5 infringe Plaintiff’s Utility Patents and Design Patents, but that also sell the
6 products, without authorization, under the brand SLEEVEY WONDERS,
7 infringing Plaintiff’s Trademark.
8 25. Further, several of the infringing, inferiorly made, knock-off
9 undersleeve products are sold by Defendants Walmart using Plaintiff’s copyrighted
10 Product Images that show Plaintiff’s models wearing Plaintiff’s products to sell the
11 infringing goods, in a clear attempt to pass-off the infringing goods as those of
12 Plaintiffs. In fact, many of the uses of the Plaintiff’s unauthorized Product Images
13 feature the daughter of Plaintiff’s owner, CEO and patent inventor Ruthann
14 Greenblat.
15 26. A first infringing, knock-off product advertised and sold by
16 Defendants Walmart is shown on Exhibit H, which lists “Seamless Arm Shaper
17 Sleevey Wonders Women's Lace V-neck Perspective Cardigan” for sale for
18 $15.01-$15.43 (the “First Infringing Product”). This First Infringing Product
19 infringes, at least Plaintiff’s Utility Patents, the D‘869 Design Patent, Plaintiff’s
20 Trademark, and uses unauthorized Product Images of Plaintiff’s Sleevey Wonders
21 Undersleeves products to sell the infringing knock-offs. The following is the link
22 to the First Infringing Product being sold on Defendants Walmart’s website:
23 https://www.walmart.com/ip/Seamless-Arm-Shaper-Sleevey-Wonders-Women-s-
24 Lace-V-neck-Perspective-Cardigan/883756562.
25 27. A second infringing, knock-off product advertised and sold by
26 Defendants Walmart is shown on Exhibit I, which lists “Women Seamless
27 Shoulder Arm Shaper Slimming Wrap Posture Corrector Tops New” for sale for
28 $8.13 (the “Second Infringing Product”). This Second Infringing Product
6
COMPLAINT
1 infringes, at least Plaintiff’s Utility Patents and the D‘869 Design Patent. The
2 following is the link to the Second Infringing Product being sold on Defendants
3 Walmart’s website: https://www.walmart.com/ip/Women-Seamless-Shoulder-
4 Arm-Shaper-Slimming-Wrap-Posture-Corrector-Tops-New/862029144.
5 28. A third infringing, knock-off product advertised and sold by
6 Defendants Walmart is shown on Exhibit J, which lists “Women Posture Corrector
7 Tops Massage Shoulder Seamless Arm Shaper Slimming Wrap New” for sale for
8 $8.13 (the “Third Infringing Product”). This Third Infringing Product infringes, at
9 least Plaintiff’s Utility Patents and the D‘869 Design Patent. The following is the
10 link to the Third Infringing Product being sold on Defendants Walmart’s website:
11 https://www.walmart.com/ip/Women-Posture-Corrector-Tops-Massage-Shoulder-
12 Seamless-Arm-Shaper-Slimming-Wrap-New/812990254.
13 29. A fourth infringing, knock-off product advertised and sold by
14 Defendants Walmart is shown on Exhibit K, which lists “NEW Plus Size Seamless
15 Arm Shaper Long Cropped Navel Mesh Cardigan Hot” for sale for $11.36 (the
16 “Fourth Infringing Product”). This Fourth Infringing Product infringes, at least
17 Plaintiff’s Utility Patents, the D‘420 Design Patent and uses unauthorized Product
18 Images of Plaintiff’s Sleevey Wonders Undersleeves products to sell the infringing
19 knock-offs. The following is the link to the Fourth Infringing Product being sold
20 on Defendants Walmart’s website: https://www.walmart.com/ip/NEW-Plus-Size-
21 Seamless-Arm-Shaper-Long-Cropped-Navel-Mesh-Cardigan-Hot/155683472.
22 30. A fifth infringing, knock-off product advertised and sold by
23 Defendants Walmart is shown on Exhibit L, which lists “Women Both Side Wear
24 Sheer Plus Size Seamless Arm Shaper Top Mesh Shirt Blouses” for sale for $11.36
25 (the “Fifth Infringing Product”). This Fifth Infringing Product infringes, at least
26 Plaintiff’s Utility Patents, the D‘146 Design Patent and uses unauthorized Product
27 Images of Plaintiff’s Sleevey Wonders Undersleeves products to sell the infringing
28 knock-offs. The following is the link to the Fifth Infringing Product being sold on
7
COMPLAINT
1 Defendants Walmart’s website: https://www.walmart.com/ip/Women-Both-Side-

2 Wear-Sheer-Plus-Size-Seamless-Arm-Shaper-Top-Mesh-Shirt-
3 Blouses/973195064.
4 31. A sixth infringing, knock-off product advertised and sold by
5 Defendants Walmart is shown on Exhibit M, which lists “US STOCK Unique Hot
6 Fashion Plus Size Seamless See Through Arm Shaper Short Cropped Navel Mesh
7 Cardigan” for sale for $8.69 (the “Sixth Infringing Product”). This Sixth
8 Infringing Product infringes, at least Plaintiff’s Utility Patents, the D‘869 Design
9 Patent and uses unauthorized Product Images of Plaintiff’s Sleevey Wonders
10 Undersleeves products to sell the infringing knock-offs. The following is the link
11 to the Sixth Infringing Product being sold on Defendants Walmart’s website:
12 https://www.walmart.com/ip/US-STOCK-Unique-Hot-Fashion-Plus-Size-
13 Seamless-See-Through-Arm-Shaper-Short-Cropped-Navel-Mesh-
14 Cardigan/577315843.
15 32. A seventh infringing, knock-off product advertised and sold by
16 Walmart is shown on Exhibit N, which lists “Upper Arm Shaper for Women, Long
17 Sleeve Mesh Shaper Slimmer Arm Shapers” for sale for $6.99 (the “Seventh
18 Infringing Product”). This Seventh Infringing Product infringes, at least Plaintiff’s
19 Utility Patents and the D‘869 Design Patent. The following is the link to the
20 Seventh Infringing Product being sold on Defendant Walmart’s website:
21 https://www.walmart.com/ip/Upper-Arm-Shaper-for-Women-Long-Sleeve-Mesh-
22 Shaper-Slimmer-Arm-Shapers/671129020.
23 33. An eighth infringing, knock-off product advertised and sold by
24 Defendants Walmart is shown on Exhibit O, which lists “Amazing Arms Slimming
25 And Concealing Arm Wrap From Flab Large size:39"-42" White” for sale for
26 $10.99-$11.99 (the “Eighth Infringing Product”). This Eighth Infringing Product
27 infringes, at least Plaintiff’s Utility Patents, the D‘869 Design Patent and uses
28 unauthorized Product Images of Plaintiff’s Sleevey Wonders Undersleeves
8
COMPLAINT
1 products to sell the infringing knock-offs. The following is the link to the Eighth
2 Infringing Product being sold on Defendants Walmart’s website:
3 https://www.walmart.com/ip/Amazing-Arms-Slimming-And-Concealing-Arm-
4 Wrap-From-Flab-Large-size-39-42-
5 White/771878041?athcpid=771878041&athpgid=athenaItemPage&athcgid=null&
6 athznid=RecentlyViewed&athieid=v0&athstid=CS020&athguid=55e39e49-6d9-
7 169cbc277765e3&athena=true.
8 34. A ninth infringing, knock-off product advertised and sold by
9 Defendants Walmart is shown on Exhibit P, which lists “High-Quality Women's
10 Stunning Arm Shapers -Black” for sale for $15.00 (the “Ninth Infringing
11 Product”). This Ninth Infringing Product infringes, at least Plaintiff’s Utility
12 Patents and the D‘869 Design Patent. The following is the link to the Ninth
13 Infringing Product being sold on Design Walmart’s website:
14 https://www.walmart.com/ip/High-Quality-Women-s-Stunning-Arm-Shapers-
15 Black/382834488.
16 35. The First Infringing Product, the Second Infringing Product, the Third
17 Infringing Product, the Fourth Infringing Product, the Fifth Infringing Product, the
18 Sixth Infringing Product, the Seventh Infringing Product, the Eighth Infringing
19 Product and the Ninth Infringing Product may be collectively referred to as the
20 “Infringing Products.”
21 36. On March 20, 2019, the CEO of Plaintiff, Ruthann Greenblat, ordered
22 one of the Infringing Products from Defendants Walmart’s website. On March 26,
23 2019, said Infringing Product was received by Plaintiff. Exhibit Q are photographs
24 of said Infringing Product and the product packaging. The Infringing Product
25 further falsely labeled the fabric as being made from cotton and polyester when the
26 fabric is actually made from nylon and spandex.
27 37. Given that Defendants Walmart are infringing the Trademark, the
28 Utility Patents and the Design Patent rights of Plaintiff, in addition to blatantly
9
COMPLAINT
1 using Product Images taken directly or indirectly from Plaintiff’s website

2 (www.sleeveywonders.com), Defendants Walmart’s infringing activities are open,
3 flagrant and of the most egregious type.
4 38. Despite Walmart being notified that they were selling infringing
5 product, Defendant Walmart have not taken down any of the infringing products
6 from their website and continues to infringe the intellectual property rights of
7 Plaintiff. Given that Defendants Walmart have used Plaintiff’s Trademark and are
8 selling inferior knock-off infringing product, and were notified of such unlawful
9 activity, Defendants Walmart are undoubtedly aware of Plaintiff and its products,
10 yet continues to sell the infringing products. Such activities constitute willful and
11 wanton infringement of Plaintiff’s intellectual property rights, illegal counterfeiting
12 of goods and unfair competition (among other unlawful activities) giving rise to
13 treble damages under both federal and state law, including but not limited to lost
14 profits, associated attorneys’ fees and punitive damages.
15 39. There is no doubt that Plaintiff has been seriously damaged by the
16 infringing and unlawful acts of Defendants Walmart. Plaintiff seeks all damages
17 recoverable under the Patent and Lanham Act, including statutory or actual
18 damages, including Defendants Walmart’s profit attributable to the infringements,
19 and damages suffered as a result of the lack of compensation, credit, and
20 attribution from any diminution in the value of Plaintiff’s intellectual property
21 rights and goodwill, among all recovered for state unfair competition claims.
22
23 FIRST CAUSE OF ACTION
24 (Infringement of the ’313 Patent)
25 40. Plaintiff repeats and re-alleges each allegation set forth above as if set
26 forth fully herein.
27 41. Defendants Walmart have infringed and continues to infringe claims
28 1-5, 8, 10 and 11 of the ’313 Patent in violation of 35 U.S.C. § 271(a) by selling
10
COMPLAINT
1 and offer for sale the First Infringing Product, the Second Infringing Product, the
2 Third Infringing Product and the Fifth Infringing Product through the Ninth
3 Infringing Product and claims 1-5, 8-11 of the ’313 Patent in violation of 35 U.S.C.
4 § 271(a) by selling and offering for sale the Fourth Infringing Product.
5 42. Defendants Walmart’s infringement is based upon literal infringement
6 or infringement under the doctrine of equivalents, or both.
7 43. Defendants Walmart’s infringement includes, but is not limited to, the
8 manufacture, use, sale, importation and/or offer for sale of the Infringing Products,
9 all of which are identical to Plaintiff’s patented products and all that infringe at
10 least claims 1-5, 8, 10 and 11 of the ’313 Patent.
11 44. Defendants Walmart’s acts of making, using, importing, selling,
12 and/or offering for sale Infringing Products and services have been without the
13 permission, consent, authorization, or license of Plaintiff.
14 45. As a result of Defendants Walmart’s unlawful activities, Plaintiff has
15 suffered and will continue to suffer irreparable harm for which there is no adequate
16 remedy at law. Plaintiff and Defendants Walmart compete in the sale of the same
17 type garments.
18 46. Defendants Walmart’s continued infringement of the ’313 Patent
19 causes harm to Plaintiff in the form of price erosion, loss of goodwill, damage to
20 reputation, loss of business opportunities, inadequacy of money damages, and
21 direct and indirect competition. The amount of monetary damages to Plaintiff
22 cannot be ascertained at this time but is in excess of $75,000. Monetary damages
23 alone are insufficient to compensate Plaintiff for these harms. Accordingly,
24 Plaintiff is entitled to preliminary and/or permanent injunctive relief.
25 47. Defendants Walmart’s infringement of the ’313 Patent has injured and
26 continues to injure Plaintiff in an amount to be proven at trial.
27 //
28 //
11
COMPLAINT
1 SECOND CAUSE OF ACTION

2 (Infringement of the ’465 Patent)
5 49. Defendants Walmart has infringed and continues to infringe Claims 1-
6 7 of the ’465 Patent in violation of 35 U.S.C. § 271(a) by selling and offering for
7 sale the Infringing Products.
8 50. Defendants Walmart’s infringement is based upon literal infringement
9 or infringement under the doctrine of equivalents, or both.
10 51. Defendants Walmart’s infringement includes, but is not limited to, the
11 manufacture, use, sale, importation and/or offer for sale of the Infringing Products,
12 all of which are identical to Plaintiff’s patented products and that infringe all the
13 claims of the ’465 Patent.
14 52. Defendants Walmart’s acts of making, using, importing, selling,
15 and/or offering for sale Infringing Products have been without the permission,
16 consent, authorization, or license of Plaintiff.
17 53. As a result of Defendants Walmart’s unlawful activities, Plaintiff has
18 suffered and will continue to suffer irreparable harm for which there is no adequate
19 remedy at law. Plaintiff and Defendants Walmart both advertise and sell
20 undersleeve products.
21 54. Defendant Walmart’s continued infringement of the ’465 Patent
22 causes harm to Plaintiff in the form of price erosion, loss of goodwill, damage to
23 reputation, loss of business opportunities, inadequacy of money damages, and
24 direct and indirect competition. The amount of monetary damages to Plaintiff
25 cannot be ascertained at this time but is in excess of $75,000. Monetary damages
26 alone are insufficient to compensate Plaintiff for these harms. Accordingly,
27 Plaintiff is entitled to preliminary and/or permanent injunctive relief.
28 //
12
COMPLAINT
1 55. Defendants Walmart’s infringement of the ’465 Patent has injured and
2 continues to injure Plaintiff in an amount to be proven at trial.
3
4 THIRD CAUSE OF ACTION
5 (Infringement of the D’869 Design Patent)
8 57. The claimed design of the D’869 Design Patent is shown and
9 described in Figures 1-8 of the D’869 Design Patent, which can be seen in Exhibit
10 D.
11 58. In the eye of the ordinary observer familiar with the relevant prior art,
12 giving such attention as a purchaser usually gives, the claimed design of the D’869
13 Design Patent and the design of at least the First Infringing Product, the Second
14 Infringing Product, the Third Infringing Product, the Eighth Infringing Product and
15 the Ninth Infringing Product are substantially the same, such that the ordinary
16 observer would be deceived into believing that each of the First Infringing Product,
17 the Second Infringing Product, the Third Infringing Product, theEighth Infringing
18 Product and the Ninth Infringing Product is the design claimed in the D’869
19 Design Patent.
20 59. Plaintiff did not give Defendants Walmart authorization or license to
21 make, use, offer to sell, or sell the Infringing Products. Plaintiff and Defendants
22 Walmart both advertise and sell undersleeve products.
23 60. Defendants Walmart have directly infringed, and continue to directly
24 infringe, the D’869 Design Patent by making, using, offering to sell, selling and/or
25 importing Infringing Products, having substantially the same ornamental design as
26 the design claimed in the D’869 Design Patent, in violation of 35 U.S.C. §§ 271(a)
27 and 289.
28 //
13
COMPLAINT
1 61. Defendants Walmart’s infringement of the D’869 Design Patent has

2 caused and will continue to cause damage to Plaintiff. Defendant Walmart’s
3 infringement of the D’869 Design Patent has injured and continues to injure
4 Plaintiff in an amount to be proven at trial. The amount of monetary damages to
5 Plaintiff cannot be ascertained at this time but is in excess of $75,000. Plaintiff is
6 entitled to actual damages and/or statutory damages. Monetary damages alone are
7 insufficient to compensate Plaintiff for these harms. Accordingly, Plaintiff is
8 entitled to preliminary and/or permanent injunctive relief, in addition to monetary
9 damages.
10 62. Defendants Walmart’s infringement has also caused and will continue
11 to cause irreparable harm to Plaintiff unless and until such infringing conduct is
12 enjoined pursuant to 35 U.S.C. § 283 and/or the equitable powers of this Court.
13 63. Defendants Walmart’s continued infringement of the D’869 Design
14 Patent causes harm to Plaintiff in the form of price erosion, loss of goodwill,
15 damage to reputation, loss of business opportunities, inadequacy of money
16 damages, and direct and indirect competition.
17 64. Upon information and belief, Defendants Walmart knew or should
18 have known that the use, marketing, offering to sell and selling of the Infringing
19 Products by Defendants Walmart would directly infringe the D’869 Design Patent.
20 65. Upon information and belief, Defendants Walmart’s acts of
21 infringement have been or will be undertaken with knowledge of the D’869 Design
22 Patent. Such acts constitute willful infringement and make this case exceptional
23 pursuant to 35 U.S.C. §§ 284 and 285, and entitle Plaintiff to enhanced damages
24 and reasonable attorney fees.
25 //
26 //
27 //
28 //
14
COMPLAINT
1 FOURTH CAUSE OF ACTION

3
8 E.
11 Design Patent and the design of at least the Sixth Infringing Product and Seventh
12 Infringing Product are substantially the same, such that the ordinary observer
13 would be deceived into believing that each of the Sixth Infringing Product and
14 Seventh Infringing Product are the design claimed in the D’420 Design Patent.
17 Walmart both compete in the sale of the same type garments.
20 importing the Infringing Products, having substantially the same ornamental design
21 as the design claimed in the D’420 Design Patent, in violation of 35 U.S.C. §§
22 271(a) and 289.
24 caused and will continue to cause damage to Plaintiff. Defendants Walmart’s
15
COMPLAINT

3 damages.
19
20 FIFTH CAUSE OF ACTION
26 F.
27 //
28 //
16
COMPLAINT
3 Design Patent and the design of at least the Fifth Infringing Product is substantially
4 the same, such that the ordinary observer would be deceived into believing that
5 each of the Fifth Infringing Product is the design claimed in the D’146 Design
6 Patent.
9 Walmart compete in the sale of the same type garments.
12 importing Infringing Products, having substantially the same ornamental design as
13 the design claimed in the D’146 Design Patent, in violation of 35 U.S.C. §§ 271(a)
14 and 289.
16 caused and will continue to cause damage to Plaintiff. Defendants Walmart’s
23 damages.
17
COMPLAINT

11
12 SIXTH CAUSE OF ACTION
13 (Trademark Infringement – Lanham Act 15 U.S.C. § 1114 and 1125)
16 87. Defendants Walmart’s use of Plaintiff’s Trademark (Exhibit A) to sell
17 its First Infringing Product is likely to cause confusion, and has caused, confusion
18 in the marketplace, deceiving the public into believing that Defendants Walmart’s
19 products originate from, are affiliated with, or are sponsored by the Plaintiffs in
20 violation of 15 USC §§ 1114 and 1125(a).
21 88. Defendants Walmart knew that it was using Plaintiff’s Trademark to
22 sell its knock-off products. Defendants Walmart willfully used Plaintiff’s
23 Trademark in connection with the sale, offering for sale, distribution and/or
24 advertising of its First Infringing Product.
25 89. Defendant Walmart’s acts of infringement were willful and/or
26 reckless.
27 90. The infringing conduct of Defendants Walmart have caused, and
28 likely will continue to cause, both irreparable harm and monetary damages to
18
COMPLAINT
1 Plaintiffs. The amount of monetary damages to Plaintiff cannot be ascertained at

2 this time but is in excess of $75,000. Plaintiff is entitled to actual damages and/or
3 statutory damages. Unless this Court restrains Defendants Walmart from further
4 infringing conduct, Plaintiff will continue to suffer irreparable harm, for which it
5 has no adequate remedy at law.
6 91. Pursuant to 15 U.S.C. §§ 1117 and 1125, Plaintiff is entitled to
7 recover damages, profits made by Defendants Walmart and the costs of this action.
8
9 SEVENTH CAUSE OF ACTION
10 (Federal Unfair Competition and False Designation of Origin 15 U.S.C.
11 §1125(a) against all Defendants)
14 93. Plaintiff and Defendants Walmart are direct competitors of one
15 another.
16 94. As set forth above, Defendants Walmart are falsely identifying the
17 origin of its products for sale by advertising and selling products identical in
18 appearance to Plaintiff’s products, using Plaintiff’s own marketing and advertising
19 materials, thereby passing off Defendant Walmart’s own goods and that of
20 Plaintiff’s products.
21 95. Defendants Walmart’s actions described above and specifically, without
22 limitation, Defendants Walmart’s use of Plaintiff’s Product Images to sell
23 Infringing Products, and in particular its Fourth Infringing Product, Fifth Infringing
24 Product, Sixth Infringing Product and Eighth Infringing Product, intentionally
25 confuses and deceives the consuming public as to the source, affiliation,
26 connection, or sponsorship of Defendants Walmart’s Infringing Products.
27 //
28 //
19
COMPLAINT
1 96. Consumers are likely to be misled and deceived by, and have been
2 misled and deceived by, Defendants Walmart’s use of Plaintiff’s Product Images to
3 sell Defendants Walmart’s imitation, inferior, knock-off Infringing Products.
4 97. Defendant Walmart’s use in commerce to advertise, market, and sell
5 Infringing Products throughout the United States, including California, using
6 Plaintiff’s Product Images constitute unfair competition and false designation of
7 origin in violation of 15 U.S.C. § 1125(a).
8 98. Defendants Walmart knew or should have known that its use of
9 Plaintiff’s marketing and advertising materials (i.e., Product Images) were likely to
10 mislead consumers.
11 99. As an actual and proximate result of Defendants Walmart’s willful
12 and intentional actions, Plaintiff has suffered damages in an amount to be
13 determined at trial. The amount of monetary damages to Plaintiff cannot be
14 ascertained at this time but is in excess of $75,000. Unless Defendants Walmart is
15 enjoined, Plaintiff will continue to suffer irreparable harm and damage to its
16 business, reputation, and goodwill.
17 100. Pursuant to 15 U.S.C. § 1117, Plaintiff is entitled to damages for
18 Defendant Walmart’s Lanham Act violations, an accounting for profits made by
19 Defendants Walmart on sales of its Infringing Products, and at least the Fourth
20 Infringing Product, the Fifth Infringing Product, the Sixth Infringing Product and
21 the Eighth Infringing Product, as well as recovery of the costs of this action.
22 101. Furthermore, Plaintiff is informed and believes, and on that basis
23 alleges, that Defendants Walmart’s conduct was undertaken willfully and with the
24 intention of causing confusion, mistake or deception, making this an exceptional
25 case entitling Plaintiff to recover additional damages and reasonable attorneys’
26 fees pursuant to 15 U.S.C. § 1117.
27 //
28 //
20
COMPLAINT
1 EIGHTH CAUSE OF ACTION

2 (Statutory Unfair Competition and False Designation of Origin under
3 California Business and Professions Code §§ 17200 and 17500 et seq.)
6 103. Plaintiff and Defendants Walmart are direct competitors of one
7 another.
8 104. As set forth above, Defendants Walmart is falsely identifying the
9 origin of its products for sale by advertising and selling products identical in
10 appearance to Plaintiff’s products, including Plaintiff’s Sleevey Wonders
11 Undersleeves products, using Plaintiff’s own marketing and advertising materials,
12 thereby passing off Defendants Walmart’s own goods and that of Plaintiff’s
13 products, including its Sleevey Wonders Undersleeves products.
14 105. Defendants Walmart’s actions described above and specifically,
15 without limitation, Defendants Walmart’s use of Plaintiff’s Product Images to sell
16 Infringing Products, and in particular its Fourth Infringing Product, its Fifth
17 Infringing Product, its Sixth Infringing Product and its Eighth Infringing Product,
18 intentionally confuses and deceives the consuming public as to the source,
19 affiliation, connection, or sponsorship of the Walmart Infringing Products.
20 106. Consumers are likely to be misled and deceived by, and have been
21 misled and deceived by, Defendants Walmart’s use of Plaintiff’s Product Images to
22 sell Defendants Walmart’s imitation, inferior, knock-off Infringing Products.
23 107. Defendants Walmart knew or should have known that their use of
24 Plaintiff’s marketing and advertising materials (i.e., Product Images) were likely to
25 mislead consumers.
26 //
27 //
28 //
21
COMPLAINT
1 108. Plaintiff is informed and believes, and on that basis alleges, that
2 Defendants Walmart’s conduct was undertaken willfully and with the intention of
3 causing confusion, mistake or deception.
4 109. Defendants Walmart’s use in commerce to advertise, market, and sell
5 Infringing Products throughout the United States, including California, using
6 Plaintiff’s Product Images constitute unfair competition and false designation of
7 origin in violation of the statutory law of the state of California, Cal. Bus. & Prof.
8 Code §§ 17200 and 17500, et seq. As a result, Plaintiff has suffered and will
9 continue to suffer damage to its business, reputation, and goodwill.
10 110. As an actual and proximate result of Defendants Walmart’s willful
11 and intentional actions, Plaintiff has suffered damages in an amount to be
12 determined at trial. Plaintiff is entitled to actual damages and/or statutory
13 damages. Unless Defendants Walmart is enjoined, Plaintiff will continue to suffer
14 irreparable harm and damage to its business, reputation, and goodwill.
15
16 PRAYER FOR RELIEF
17 WHEREFORE, Plaintiff prays that this Court enter judgment against
18 Defendants Walmart as follows:
19 A. That Plaintiff be granted injunctive relief under 35 U.S.C. § 283; 15
20 U.S.C. § 1051 et seq.; California Business and Professions Code §§ 17200 and
21 17500 et seq.; and specifically, that Defendants Walmart and all of their respective
22 officers, agents, servants, representatives employees, attorneys, and all other persons
23 acting in concert with them be required to destroy all Infringing Product and be
24 enjoined from:
25 1. selling, offering for sale or advertising or marketing for sale any
26 products that infringe any of Plaintiff’s Utility Patents, Design Patents or
27 registered Trademark or that use Plaintiff’s Product Images or any other image
28 of Plaintiff’s products to advertise, market and sale products, or any other
22
COMPLAINT
1 products confusingly similar in style and appearance to Sleevey Wonders

2 Undersleeves; and
3 2. directly or indirectly engaging in false or misleading
4 advertising or promotions of products that create confusion as to source
5 and/or mislead the public into believing that Defendants Walmart’s
6 products are those of Plaintiff;
7 B. That Defendants Walmart file, within ten (10) days from entry of an
8 injunction, a declaration with this Court signed under penalty of perjury certifying
9 the manner in which Defendants Walmart have complied with the terms of the
10 injunction and order of destruction of Infringing Products;
11 C. That Defendants Walmart be adjudicated to have violated 35 U.S.C. §
12 101 et seq. by having infringed one or more Plaintiff’s Utility Patents or Design
13 Patents by offered for sale and selling products that infringe Plaintiff’s Utility
14 Patents or Design Patents;
15 D. That Defendants Walmart be adjudicated to have violated 15 U.S.C. §
16 1125 et seq. by willfully using the Plaintiff’s Trademark and Plaintiff’s Product
17 Images in connection with the sale, offering for sale, distribution and/or advertising
18 of infringing products in a manner likely to cause confusion, or to cause mistake,
19 or to deceive customers into believing that Defendants Walmart's products are
20 Plaintiff’s products or otherwise associated with or authorized by Plaintiff, and/or
21 deceive customers into thinking that Sleevey Wonder Undersleeves are those of
22 Walmart;
23 E. That Defendants Walmart be adjudged to have violated 15 U.S.C. §
24 1125 by unfairly competing against Plaintiff by using Plaintiff’s own Product
25 Images in connection with the sale, offering for sale, distribution and/or advertising
26 of Infringing Products in a manner likely to cause confusion, or to cause mistake,
27 or to deceive customers into believing that Defendants Walmart's products are
28 Plaintiff’s products or otherwise associated with or authorized by Plaintiff, and/or
23
COMPLAINT
1 deceive customers into thinking that Defendants Walmart’s products are those of
2 Plaintiff’s;
3 F. That Defendants Walmart be adjudged to unlawfully and unfairly
4 compete against Plaintiff under the laws of the State of California, Cal. Bus. & Prof.
5 Code § 17200, et seq.;
6 G. That Plaintiff be awarded damages for patent infringement under the
7 Patent Act, including but not limited to 35 USC §§ 281, 284 and 285;
8 H. That Plaintiff be awarded additional damages pursuant to 35 USC 289
9 for infringement of a design patent;
10 I. That Plaintiff be awarded damages under the Lanham Act, including
11 but not limited to 15 U.S.C. § 1117 as sufficient to compensate it for the damage
12 caused by Defendants Walmart’s infringement of Plaintiff’s Trademark and
13 damages pursuant to 15 U.S.C. § 1117(a) for unfair competition and false
14 designation of origin, in an amount, sufficient to compensate it for the damage
15 caused by Defendants Walmart, including but not limited to Defendants Walmart’s
16 profits, Plaintiff’s damages and the cost of this action to Plaintiff;
17 J. That Plaintiff be awarded Defendants Walmart’s profits derived by
18 reason of said acts, or as determined by said accounting;
19 K. That such damages and profits be trebled and awarded to Plaintiff and
20 that it be awarded its costs, attorneys’ fees and expenses in this suit under 15
21 U.S.C. § 1117, as a result of Defendants Walmart’s willful, intentional, and
22 deliberate acts in violation of the Patent Act and the Lanham Act;
23 L. That Plaintiff be awarded damages in an amount sufficient to
24 compensate it for the damage caused by Defendants Walmart’s unfair competition
25 and false designation of origin under California Business and Professions Code §§
26 17200 and 17500 et seq. and trademark infringement under federal law and
27 California common law;
28 M. That Plaintiff be granted prejudgment and post judgment interest;
24
COMPLAINT
1 N. That Plaintiff be granted costs associated with the prosecution of this

2 action; and
3 O. That Plaintiff be granted such further relief as the Court may deem
4 just, including but not limited to punitive damages and attorneys’ fees.
5
6 Dated: April 4, 2019 AVYNO LAW P.C.
7
8 By: /s/ Jennifer H. Hamilton
9 Jennifer H. Hamilton

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COMPLAINT
1 DEMAND FOR JURY TRIAL

2 Plaintiff requests a jury trial on all issues properly triable to a jury.
3
4 Dated: April 4, 2019 Avyno Law P.C.
5
6 /s/ Jennifer H. Hamilton
7 Jennifer H. Hamilton

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COMPLAINT
Case 2:19-cv-02587 Document 1-1 Filed 04/04/19 Page 1 of 110 Page ID #:27
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Exhibit H
Exhibit I
Exhibit J
Exhibit K
Exhibit L
Exhibit M
Exhibit N
Exhibit O
Exhibit P
Exhibit Q

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Case 2:19-cv-02587 Document 1 Filed 04/04/19 Page 1 of 26 Page ID #:1

1 AVYNO LAW P.C.

10 Attorneys for Plaintiff

14 FOR THE CENTRAL DISTRICT OF CALIFORNIA

16 R AND A SYNERGY LLC, a CASE NO.: 2:19-CV-2587

17 California limited liability company,

1 Plaintiff R and A Synergy, LLC (“Plaintiff”), by and through its counsel,

1 24. A search of Defendant Walmart’s website at www.walmart.com

1 Defendants Walmart’s website: https://www.walmart.com/ip/Women-Both-Side-

1 using Product Images taken directly or indirectly from Plaintiff’s website

1 SECOND CAUSE OF ACTION

1 61. Defendants Walmart’s infringement of the D’869 Design Patent has

1 FOURTH CAUSE OF ACTION

1 insufficient to compensate Plaintiff for these harms. Accordingly, Plaintiff is

1 damage to reputation, loss of business opportunities, inadequacy of money

1 Plaintiffs. The amount of monetary damages to Plaintiff cannot be ascertained at

1 EIGHTH CAUSE OF ACTION

1 products confusingly similar in style and appearance to Sleevey Wonders

1 N. That Plaintiff be granted costs associated with the prosecution of this

10 Attorneys for Plaintiff

1 DEMAND FOR JURY TRIAL

8 Attorneys for Plaintiff

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