UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.

: SHOES FOR CREWS, LLC, a Florida limited liability company, Plaintiff, v. CROCS, INC., a Delaware corporation, Defendant. ______________________________/ COMPLAINT FOR DECLARATORY JUDGMENT The Plaintiff, SHOES FOR CREWS, LLC, sues the Defendant, CROCS, INC. for a declaratory judgment of its rights under the Patent Act, and complains as follows: JURISDICTION AND VENUE 1. This is an action to declare the rights of the parties pursuant to the Federal

Declaratory Judgment Act, 28 U.S.C. 2201, and the Patent Laws of the United States, 35 U.S.C. 271, et seq. 2. 1338(a). 3. This court has personal jurisdiction over the Defendant pursuant to Fla. Stat. Ch. This court has subject matter jurisdiction of this action pursuant to 28 U.S.C.

48.193(1) and (2) by virtue of its substantial, continuous and not isolated activity in the Southern District of Florida, including having registered with the State of Florida as a foreign profit corporation and the marketing, distribution and sale of footwear throughout the District.

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Venue is proper in this District, pursuant to 28 U.S.C. 1391, because the

Defendant is subject to personal jurisdiction in the District, and because a substantial part of the events giving rise to this claim for declaratory relief and the subject matter thereof occurred within the District, including, without limitation, that the Plaintiff received a cease-and-desist letter from the Defendant in this District, and that the Plaintiffs principal place of business is located in this District. THE PARTIES 5. The Plaintiff is a Florida limited liability company having its principal place of

business at 250 South Australian Avenue, 17th Floor, West Palm Beach, Florida. 6. The Defendant is a Delaware corporation having its principal place of business at

6328 Monarch Park Place, Niwot, Colorado. BACKGROUND 7. On February 7, 2006, U.S. Patent No. 6,993,858 (the 858 Patent) was issued to

Scott Seamans for Breathable Footwear Pieces. The Defendant is the owner by assignment of the 858 Patent. A copy of the 858 Patent is attached as Exhibit A hereto. 8. On March 28, 2006, U.S. Design Patent No. D517,790 (the 790 Patent) was

issued to Scott Seamans for Footwear. The Defendant is the owner by assignment of the 790 Patent. A copy of the 790 Patent is attached as Exhibit B hereto. 9. On October 20, 2011, counsel for the Defendant sent a cease-and-desist letter to

the Plaintiff, alleging infringement of the 858 and 790 Patents by virtue of the Plaintiffs manufacture and sale of the SFC Froggz Classic Style Nos. 5000 and 5001 clog footwear. The Defendant has demanded that the Plaintiff cease the manufacture, marketing and sale of the SFC Froggz Classic footwear, destroy all remaining inventory of the footwear, and provide the

Defendant an accounting of all sales of the footwear for purposes of a financial resolution. The letter requested a reply by October 27, 2011. A copy of the letter from counsel is attached as Exhibit C hereto. 10. The Plaintiff has been openly and conspicuously manufacturing, marketing and

selling the SFC Froggz footwear since April 2006. 11. The Defendant has known about the Plaintiffs marketing and sale of the SFC

Froggz footwear since at least as far back as April 2009. On April 27, 2009, the Defendants in-house counsel issued a letter alleging that the Plaintiff was improperly using the Crocs trademark as a metatag on its website, and demanded that the Plaintiff immediately cease and desist from any use of the Crocs mark, including use as a metatag. The Plaintiff issued a written response through counsel on May 1, 2009, explaining that the Crocs mark was not being used in any fashion on the website, except in a page offering a comparison of the parties respective footwear and demonstrating the superior slip resistance of the Plaintiffs footwear. The page featured a bar graph depicting the slip-resistance of the parties respective footwear, as well as that of third parties. The SFC Froggz Classic footwear was clearly shown and The parties briefly exchanged follow-up correspondence

promoted below the bar graph.

thereafter. Copies of the 2009 correspondence are attached as composite Exhibit D hereto. 12. Following the parties communications in 2009, the Plaintiff did not change the

comparison page of its website to remove references to Crocs, nor to remove the SFC Froggz Classic footwear from the page. The Defendant took no further action in connection with the issue. The Plaintiff thereafter received no further contact from the Defendant prior to the October 20, 2011 letter from counsel.

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As a result of the Defendants October 20, 2011 cease-and-desist letter, an actual The Defendants accusations of patent

case or controversy exists between the parties.

infringement and demand for an accounting for purposes of a financial resolution threaten potentially serious consequences to the business operations of the Plaintiff. 14. Because of the serious nature of the Defendants infringement accusations and

demand for an accounting, the Plaintiff believes that these accusations and demand must be addressed now, or else they will persist and cause damage to the Plaintiff as a result. 15. The Plaintiff is entitled to be able to continue to conduct its long-standing

marketing, distribution, and sale of slip-resistant footwear featuring proprietary gripping treads affixed to the bottom of the shoes to its existing customers and new customers looking for comfortable, durable, and safe footwear that will reduce the incidence of slips and falls on slippery floors and surfaces in the workplace, and to engage in its business in an atmosphere free of unfounded accusations and threats. COUNT I DECLARATORY JUDGMENT FOR NON-INFRINGEMENT (U.S. Patent No. 6,993,858) 16. This Count seeks a declaration of rights pursuant to the protections of the Federal

Declaratory Judgment Act, 28 U.S.C. 2201. The Plaintiff repeats and realleges Paragraphs 1 15 above. 17. The Plaintiff has not made, used, offered to sell or sold or imported any products

covered by any claim of the 858 Patent. For example, the claims of the 858 Patent purport to cover a footwear piece comprising, among other features, a base section having an upper and a sole formed as a single part manufactured from a moldable foam material. SFC Froggz Classic footwear does not feature an upper and a sole formed as a single part. Rather, the upper

and sole are separate parts glued together, with the Plaintiffs proprietary slip-resistant treads glued into the outsole. The footwear furthermore lacks the ventilators in the upper as required by the claims of the 858 Patent. 18. The Plaintiff is in need of, and entitled to, a judicial declaration that it has not

infringed the 858 Patent via its manufacture, marketing and sales of the SFC Froggz footwear, or any of its other footwear. COUNT II DECLARATORY JUDGMENT FOR NON-INFRINGEMENT (U.S. Design Patent No. D517,790) 19. This Count seeks a declaration of rights pursuant to the protections of the Federal

Declaratory Judgment Act, 28 U.S.C. 2201. The Plaintiff repeats and realleges Paragraphs 1 15 above. 20. The Plaintiff has not made, used, offered to sell or sold or imported any products

bearing the design claimed in the 790 Patent. For example, the SFC Froggz Classic footwear contains differences in the strap, heel and upper of the footwear from that which is claimed in the design depicted in the 790 Patent. 21. The Plaintiff is in need of, and entitled to, a judicial declaration that it has not

infringed the 790 Patent via its manufacture, marketing and sales of the SFC Froggz footwear, or any of its other footwear. COUNT III DECLARATORY JUDGMENT PATENT INVALIDITY (U.S. Design Patent No. D517,790) 22. This Count seeks a declaration of rights pursuant to the protections of the Federal

Declaratory Judgment Act, 28 U.S.C. 2201. The Plaintiff repeats and realleges Paragraphs 1 15 above.

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The 790 Patent is invalid as indefinite, pursuant to 35 U.S.C. 112, for the

inconsistent use of broken lines in the drawings that depict and demarcate the ornamental design claimed therein. 24. The Plaintiff has reason to further question the validity of the 790 Patent,

pursuant to 353 U.S.C. 102 and 103, although it is still in the process of gathering evidence of patent invalidity for anticipation or obviousness in light of prior art. Further investigation and discovery are required in this regard. 25. The Plaintiff is in need of, and entitled to, a judicial declaration that it the 790

Patent is invalid and unenforceable.

DEMAND FOR JURY TRIAL The Plaintiff requests that all issues in this case be tried to a jury.

WHEREFORE, the Plaintiff prays that this Court enter judgment that: A. The Plaintiff has not committed any act of infringement of the 858 Patent with

respect to SFC Froggz footwear, or any of its other footwear; B. The Plaintiff has not committed any act of infringement of the 790 Patent with

respect to SFC Froggz footwear, or any of its other footwear; C. D. The 790 Patent is invalid and unenforceable; This case is exceptional, under 35 U.S.C. 285, and that the Defendant reimburse

the Plaintiffs reasonable attorney fees and costs incurred in connection therewith; and E. Grant the Plaintiff such other relief as this Court deems appropriate.

Respectfully submitted, s/ Edward F. McHale Edward F. McHale (Florida Bar No. 190300) Brian M. Taillon (Florida Bar No. 678635) McHALE & SLAVIN, P.A. 2855 PGA Boulevard Palm Beach Gardens, Florida 33410 Telephone: (561) 625-6575 Facsimile: (561) 625-6572 E-mail: litigation@mchaleslavin.com Attorneys for Shoes for Crews, LLC