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					             Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 1 of 47




                           UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF CONNECTICUT


PHILIPS ELECTRONICS NORTH AMERICA                     )
CORPORA TION,                                         )
                                                      )
            Plaintiff,                                )      Civil Action No. 2:13-cv-01695
                                                      )
                v.                                    )
                                                      )
LUV N' CARE, LTD. and                                 )
ADMAR INTERNATIONAL INC.,                             )
                                                      )
           Defendants.                                )
-------------------------------)

                                          COMPLAINT

        Plaintiff Philips Electronics NOlih America Corporation ("Philips") alleges as follows,

upon actual knowledge with respect to itself and its own acts, and upon information and belief as

to all other matters.

                                    NATURE OF THE CASE

        This is an action for declaratory judgment for non-infringement of certain alleged

trademarks, trade dress, and design patents asserted by Defendants Luv N' Care, Ltd. and Admar

International Inc. (collectively, "Defendants"). This action arises under the Lanham Act, 15

U.S.C. § 1051, et seq., the Patent Act, 35 U.S.C. §§ 101, 171, et seq., and the Federal

Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202.

        Philips brings this action seeking declaratory judgment that Philips' use of "natural"

descriptively and informationally in connection with baby bottles and baby bottle nipples does

not infringe or create a likelihood of confusion with Defendants' alleged trademark rights in

"natural nurser" for baby bottles, that Philips' use of "natural" in connection with baby bottles
             Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 2 of 47




and baby bottle nipples constitutes descriptive fair use, and that "natural nurser" is not a

protectable trademark as used by Defendants. Philips also seeks a declaratory judgment that

Philips' use of the word "non-spill" and a drop-of-water design for toddler cups does not infringe

or create a likelihood of confusion with Defendants' alleged trademark rights in "non-drip" and a

non-drip design for toddler cups, that Philips' use of "non-spill" and a drop-of-water design on

toddler cups constitutes descriptive fair use, and that "non-drip" and the drop-of-water design are

not protectable trademarks as used by Defendants. Further, Philips seeks a declaratory judgment

that Philips' no-spill toddler cup silicone soft top does not infringe any of Defendants' design

patents, the designs in any of Defendants' pending design patent applications, or Defendants'

alleged trade dress rights.

                                          THE PARTIES

        1.      Plaintiff Philips Electronics North America Corporation is a corporation

organized and existing under the laws of the State of Delaware, having a principal place of

business at 3000 Minuteman Road, Andover, Massachusetts 01810.

       2.      Defendant Luv N' Care, Ltd. ("LNC") is a corporation organized and existing

under the laws of the State of Louisiana, having a principal place of business at 3030 Aurora

Avenue, Monroe, Louisiana 71201.

       3.      Defendant Admar International Inc. ("Admar") is a corporation organized and

existing under the laws of the State of Delaware, having a principal place of business at 3030

Aurora Avenue, Monroe, Louisiana 71201.




                                                -2-
            Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 3 of 47




                                JURISDICTION AND VENUE

       4.      This action arises under the federal Trademark Act, 15 U.S.C. § 1051, et seq., the

Patent Act, 35 U.S.C. §§ 101, 171, etseq., and the Federal Declaratory Judgment Act, 28 U.S.c.

§§ 2201 and 2202.

       5.      This Court has jurisdiction over the subject matter of this action pursuant to 15

U.S.C. § 1121 and 28 U.S.C. §§ 1331, 1338, and the Declaratory Judgment Act, 28 U.S.C. §§

2201 and 2202.

       6.      This Court has personal jurisdiction over Defendants and venue is proper in this

District pursuant to 28 U.S.C. § 1391(b) and (c) because Defendants transact and regularly do

business in the District, including selling and promoting products bearing the alleged trademarks,

trade dress, and patented designs that Defendants assert Philips has infringed.

                               PHILIPS AND ITS PRODUCTS

       7.      Philips is a global health and well-being company and leader in lifestyle,

healthcare, lighting, and technology. Philips manufactures, markets, and distributes mother-and-

child-care products, personal-care products, domestic/household appliances and products,

consumer electronics, lighting, and healthcare and medical equipment and products.

       8.      In connection with its Philips AVENT brand, Philips offers a wide range of baby

bottles, baby bottle nipples, breast pumps, soothers, baby monitors, toddler cups, and other baby

and toddler feeding and health accessories.

       9.      Philips uses the word "natural" descriptively and informationally in connection

with its baby bottles on its website as shown in the representative screen captures below.




                                               -3-
                           Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 4 of 47




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                            Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 5 of 47




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                    Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 6 of 47




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Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 7 of 47




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                                              For consumers     For professionals       About Philips                                                                                q,1
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                                                Bottles ...    3 Natural, 90z/260ml, slow Flow Hipple:



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                 3 Natural, 9oZ/260m1, stow Flow Nipple SCFo'J ] /J')                                                                                                 A~EMT


                                              Specifications                              Awards and reviews                                                support



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                                                                                         The nat ural w ay to bottle feed
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                                                                                         F'tlilips AVENT feeding bottle
                                                                                         Our new bottle helps to make bottle feeding more natural for
                                                                                         your baby and you. The nipple features an innovative petal
                                                                                         design for natural latch on similar to the breast, making it easy
                                                                                         for your baby to combine breast and bottle feeding,

    •                                                                                    ***1,                          User Reviews (13)     I    Expert Reviews (S)


                                                                                         $23.99*

                                                                                         -"'R   ~ta,j   pnC<! 5 may vary




                                                               -7-
                           Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 8 of 47




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                                             Highlights
                                             Easy to combine breast and bottle feeding                                                     Easy to hold and gnp In any dlrecbon
                                             • Nat..-al1atm on due to the wide breast shaped nipple                                        • Ergonomic shape for maxOnun comfort

                                             A more comfortable and contented feed for baby                                                Otherbenelits
                                             • IJnique comfort petals to.- an extra soft and flexible nipple                               · Compatible with the Philips AVENT range
                                                                                                                                           • Thfs bottle is SPA free-
                                             Air goes into the bottle. not baby's tummy                                                    • Available in different SIZes (40z/125m! and 9oz/26Om1)
                                             · Advanced anti colic system witlllnnovative twin valve                                       • Simple to use and dean, quidc. and easy assembly

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                                                               Features                                                                                                                                              ~

                                                               Natural *""~+ on due to the WIde breast shaped n'f'Ple
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                                                               TN .... ~st sillped ftip§lla promoMl "a.wnd Inch Oft silftilOirto the brent.
                                                               ""aking it . .sy _your b;aby to combi_ brent .. nd botde r..ding.




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                                                                                    •                               Unique comfort petals fOr an extra soft and flexJbIe nipple
                                                                                                                    Pehls Ins. the nipple iftcH!ue so#tn.$s • ltd \Mxibility witftout nip~
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                                                               Advanced anti colic system with innovative twin valve
                                                               Innoviltive twin valve design n!duC.5 colic and discomfort by ....,.t:ing a.ir into
                                                               the lKItde ilnd nut bOlby's tummy.




                 10.                Philips uses the word "natural" descriptively and informationally in connection




                                                                                                                   - 8-
             Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 9 of 47




with its baby bottles on product packaging as shown in the representative image below.




                    The most
                     natural way
                    to bottle feed




                                                                 PHILIPS




       11.     As shown in the image below of a representative Philips AVENT Natural bottle,

"natural" does not appear on Philips AVENT bottles. Additionally, the Philips AVENT Natural

bottles prominently display both the AVENT and PHILIPS marks.




                                             -9-
                              Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 10 of 47




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                   12.                   Philips uses the word "natural" descriptively and informationally in connection

with certain of its baby bottle nipples on its website as shown in the representative screen

captures below.

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                                                                    Bottle feeding   ... ,   Nipples ....   One 40z bottle and nipple. Variable Flow; 3m+
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                                                                                         Specifications                             Reviews                                support




                                                                                                                               The natural way to bottle
                                                                                                                               feed
                                                                                                                               With the Philips AVENT Natural van able flow nipple, you
                                                                                                                               can adjust the flow rate by simply turning the bottle,
                                                                                                                               The nipple features an innovative petal design for
                                                                                                                               natural latch on similar to the breast, for easy

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                                                                                                                                                Be t he fi rst reviewer



                                                                                                                               $5.99*




                                                                                                      - 10 -
                       Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 11 of 47




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                                         Ideal for thICker liquids - 3M+                                            0% BPA (&phenol A Free)
                                         • Adjust the flow rate to baby's convenience                              • SPA free- nipple


                                         Easy to combine breast and bottle feeding                                  Other benefits
                                         · Natur'allatdl on due to the wide bce_ shaped nipple                     . Different flow rates for the most co~-..JbIe feed
                                                                                                                   " Compatible with Philips AVENT Natural feedalg bottle
                                         A more comfortable and contented feed for baby

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                                         • UnIque contort petals for an extra soft and _         nipple

                                                                                                                      D0, you like your Philips product?
                                         AIr goes into the bottle not baby's tummy
                                                                                                                      Share your expenence with others,
                                         • Adv.&::t£adl anti coic system with innovative twin valve
                                                                                                                      Wnte a review ..                          ,

                                                                                                                                                                             --'"


                                         Features

                                         Natural latch on due to the wide breast shaped nipple
                                         The wide breast shaped nipple promotes naturallatdl on similar to the breast,
                                         makJng it easy foc your baby to combine bceast and 00_ fee<ing.




                13.            Philips uses the word "natural" descriptively and informationally in connection

with certain of its baby bottle nipples on product packaging as shown in the representative image

below.




                                                                                                  - 11 -
               Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 12 of 47




                                    2M Fastflowmu




         14.     As shown in the image below of a representative Philips AVENT Natural bottle

nipple, "natural" does not appear on Philips AVENT bottle nipples.




         15.     Philips uses the word "non-spill" descriptively and informationally in connection

with certain of its toddler cups on its website as shown in the representative screen captures

below.




                                                    - 12 -
                     Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 13 of 47




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                                 A      Mothet" and m ild care   ..      Toddle"- feedIng         Toddler cups ..       260m'" 12m+ Toddler Fast flow Spout



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                                                        26Om1, 12m+ Toddler" Fast Flow Spout 5cr752/11
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                                                                                                                                         Non-spill valve keeps cup hygienic
                                                                                                                                         anywhere
                                                                                                                                         Fast flow. non-spill cup
                                                                                                                                         This Philips AVENT SCF752/11 SPA free spout QJP is amazingly
                                                                                                                                         spill·proof no matter jf it is used at home or out and about, and
                                                                                                                                         yet easy to drink from. The spouts with valves also fit the

                                   •                                                                                                     feedino bottles so they become spill proof too •

                                                                                                                                         **,.             \     User Reviews (17)



                                                                                                                                         $4.49*

                                                                                                                                         '"'Retail prices may vary




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                                                                                                                                                                                                                                                      I



                                        Highlights
                                                                                                                                      --                                            lI " k.     )     111:3
                                        Non-splH                                                                                  Easy to clean
                                        • Non spil spout with patented valve                                                      • Entire rup can be sterfized for hygiene purposes
                                        · Snap4:op lid keeps spout dean                                                           • AU parts are dishwasher safe for convenience

                                        Ideal tranSItion for teething babies                                                      BPA Free
                                        • Bite resistant spout for thkIren 12m+                                                   • This rup is made from BPA free material
                                        • Measurement scale on the rup

                                        Inter-changeability                                                                           Do you like your Philips product?
                                        • Completely interdlangeable with entire Philips AVENT range                                  Share your experience with others.
                                                                                                                                      Write a review ..
                                                                                                                                                                                                                                                  j
                                                                                   - -_ _ _ _ _ _ _ _ _ _ _                                               ~        ____     ~~          ____         ~     _ _ _ __ _ L       DelIllo>   »10   '" •



              16.             Philips uses the word "non-spill" descriptively and infOlmationally in connection




                                                                                                           - 13 -
               Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 14 of 47




with certain of its toddler cups on product packaging as shown in the representative image

below.




         17.     As shown in the image below of a representative Philips AVENT toddler cup,

"non-spill" does not appear on Philips AVENT toddler cups.




         18.     Philips uses the design below consisting of the universal/international prohibition

symbol over a drop of water ("Philips Water Drop Design") descriptively and informationally in

connection with certain of its toddler cups to communicate to consumers that the products do not

spill, drip, or leak.




                                                - 14 -
              Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 15 of 47




        19.     As shown in the images below ofrepresentative Philips AVENT toddler cups,

Philips uses the Philips Water Drop Design descriptively and informationally on product

packaging to communicate to consumers that the products do not spill, drip, or leak. The

packaging may also include similarly descriptive and informational wording, such as "non-spill,"

"spill free," "no mess," or variations thereof.


                                                             1201
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                                                           A"E~T
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       20.      As shown in the image below of a representative Philips AVENT toddler cup, the

Philips Water Drop Design does not appear on Philips AVENT toddler cups.




                                                  - 15 -
              Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 16 of 47




       21 .      Philips offers various non-spill toddler cups with soft spout sili~one tops,

including those products shown in the representative images below.




                                                 - 16 -
      Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 17 of 47




                                                 70z
                                        200ml




                                asy
                               E clean,
                               no n-spill                                                    PHILIPS
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                 un d tJ"o pffrel                                                     W e lcher
                  Eenvo udlg schoon                                                   Trlnkscht1abel
                   tt: m~kcn. iln cllel<                                              rut"   1Jt1lF"'fHHIcI ~
                                                                                     Zal>'1II",<~
                                                                                     Zachte drinkwlt
                                                                                    I'OOf    .....,.a, ..nd_




                                                         Easy transition
                                                        from bottle to cup
                                                          Passage facilite
                                                                     a
                                                       du biberon 13 tasse
                                                   Einfacher Obergang von
                                                   der Flasche zum Becher
                                                     Makkelijke overgang
                                                     van lIes naar beker


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22.      The soft spout silicone tops ("Toddler Cup Soft Tops") for these products may be



                                                            - 17 -
               Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 18 of 47




 purchased separately from the toddler cups, including, for example, the products shown in the

- representative images below.




                           DEFENDANTS AND THEIR PRODUCTS

         23.     Defendants offer baby and toddler feeding and health products and accessories,

 including baby bottles, baby bottle nipples, and toddler cups. Many of Defendants' products are

 offered under the brand NUBY, which appears prominently on Defendants' website at

 nuby.com, on packaging for Defendants' products, and on the products themselves.

         24.     Admar is the listed owner of U.S. Trademark Application Serial No. 85922613

 for the alleged mark "natural nurser" for "infant feeding bottles for holding liquids," filed May 3,

 2013. In this application, "nurser" has been disclaimed apart from the mark as shown. A copy

 of the record for this application from the u.S. Patent and Trademark Office's ("PTO") online

 database is attached as Exhibit 1.

         25.     Philips has filed aN otice of Opposition against Admar's Application No.

  85922613 at the Trademark Trial and Appeal Board ("TTAB") on the grounds that "natural

 nurser" is a generic name, is merely descriptive of the identified goods, and has not acquired




                                                - 18 -
                       Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 19 of 47




distinctiveness, and, thus, is neither protectable as a trademark under the Lanham Act nor

entitled to registration. A copy ofthe Notice of Opposition is attached as Exhibit 2.

                 26.           Defendants use the words "natural nurser" and "natural" generically,

descriptively, and informationally in connection with certain of their baby bottles and baby bottle

nipples on the nuby.com website as shown in the representative screen captures below.

Defendants state, for example, that their Soft Flex Natural Nurser bottle features a nipple that

"closely mimics the natural shape, feel, and function of a mother's breast helping to ease the

transition from breastfeeding to bottle feeding." (emphasis added)

                                                      ,'::oJ I·, "            1tMl -   _              ....
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                                           ~.~       Ftnning Butter, Ni~ (ream...



                                                     Breastfeeding
                                                     8re<ut Pilds,   Ac<~ ..




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                                                      , 'ri0u5 floYl R.at"-



                                                      Bottle F"""'ng

                                                     ShoVi All
                                                      Accessones
                                                      Bottlps




                                                                                                - 19 -
                           Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 20 of 47




~.          1& """,       ""b,.rom"· ;evc·,· ';"   'c'"   p j, !l: -, x ~           NllniI T •• X
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                                                                                                   Overview              Naturdl Nurser""                 Nipples


                                                                                             SoftFlex"" Natural Nurser"" Starter Set
                                                                                             (). Months

                                                                                             0Yerview": The SoftFtex- Natural Nurser .... StMter Set is the perfect comb'nation of
                                                                                             pn:xtucts for your liWe one! Nothing is better for your newborn                than a Natural

                                                                                             Toud1-.

                                                                                             The set includes: 2: Natural NtJrwr.... Soz/15Om1, 2: fiatural Nurser" 8oz/24OmI. 1
                                                                                             Mnurill Touch- medium flow nipp(es, 1 bottle and Olpple brush, 1 SoftFtex"'"

                                                                                             ~tic~iftef'"


                                                                                             It1tur~ Hurler""': The      SoftFtex- Natural !'rf:ur5er rs ~ to make breastfeeding

                                                                                             and bottle     feed"in!: wori;. better togetf\eor.    n fp.atures   tre new NUby'" Breast Size
                                                                                             ~          which do5ety mimics the nattK31 shape, feel. and function of a mother's.

                                                                                             bteast     ~       to ease theo tTansition from        bfflastf~ to       bottle feeding.
                                                                                             Superior anti-colic val\'eS in the base of the nippte help prevent CO(k. and soft
                                                                                             nubs 00 the surba!o      ~            baby's gums. Additionally, this bottle is made from a
                                                                                             hi9I ~ of Poly Pfopetet'lll':" material which is            100"~   Sisphenol A FREE and k fully




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fie   Edt   w.:.     F~         Tools   ~

,.. d i""'*"''''''-* W tem ......... ... _            11 _      <j(TlM'_ <;j>PTO 4iTT-.E     ' , '_",*,-          & PACBt     11"'-_ .........
                                                                                             Fully   inten:~             with the SoftFWx- Natural system.

                                                                                             NipplE!5 The new Breast Size Nipples are designed to m.a);e breast-feeding :ind
                                                                                             bottle feeding WIlf'k better together. By mimicking the natural shape, feet, and

                                                                                             fmction of a mothef"'s ~t, the Breast Size Hipptes help to ease the transition
                                                                                             from breast-fl?eding to bottle feeding.            TtIev feature ~ soft natural shape that
                                                                                             gently flexes and elongates. attawiog the bo\by to easily position the nipple at the

                                                                                             cOfTeet angle for feeding. In addition, the Br-east Size Nipples also feature valves
                                                                                             in the base of the nipple v..-hkh he{p prr"Vent colic, and soft nubs            00   the nipple's
                                                                                             surlaffi to   ~ :i         soothe sore gums.

                                                                                             Brush 8: Pacifier: The convenient two-in--one destgfi of the- Bottle and Nipple Brush

                                                                                             mUe it the perlect choke for busy mothers.

                                                                                             The maio brush features a soft comfortable handle and a long ne<:k to get those
                                                                                             hard to re<Kh areas. ft alw features a large and durablE!' dual surfaced scrubber
                                                                                             wflkh is perfect for- deaning cups, bottles and other feeding items.

                                                                                             The nipple brush, which easily snaps in and out of the vented handle,                 featur~   a

                                                                                             small conical shaped scrubbing tip which is perlect for mpples, spouts, pacifiers,
                                                                                             and many other       ~all   items.

                                                                                             Pacifier: NUby" Natural Touch"" SoftFlex"'" Pacifiers are discreet, stytish and
                                                                                             designed to functlofl naturally They fe.ature a orthodontic shaped baglet that
                                                                                             fle-~:~,   stnHdlP."S and mo\'p.s    Ii~.e.]   mothf:>r'S nipple. This flexing moveme-nt helps




                    27.              Defendants use the wording "natural nursee' generically, descriptively, and




                                                                                             - 20-
             Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 21 of 47




informationally in connection with certain of their baby bottles on product packaging as shown

in the representative image below.




       28.      As shown in the image below of a representative NUBY Natural Nurser bottle

offered by Defendants, "natural nurser" does not appear on Defendants' Natural Nurser bottles.

However, the NUBY brand is prominently displayed on these products.




       29.      Admar is the listed owner of abandoned U.S. Trademark Application Serial No.

85167060 for the design shown below for "baby bottles," filed November 2,2010. The




                                             - 21 -
               Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 22 of 47




following disclaimer is made in this application: "no claim is made to the exclusive right to use

'no-spill' and 'the universal prohibition symbol' apart from the mark as shown." A copy of the

record for this application from the PTO's online database is attached as Exhibit 3. The design

below is referred to as "Defendants No-Spill Water Drop Design #1".




         30.      On February 11,2011, the PTO Trademark Examining Attorney issued an Office

Action refusing registration of Defendants No-Spill Water Drop Design #1 in application no.

85167060 on the ground that it did not function as a trademark "to identify and distinguish

applicant's goods from those of others and to indicate the source of applicant's goods." The

Examining Attorney found that the proposed mark was "merely informational matter." The

Examining Attorney explained that the proposed mark appeared on the front of Admar's product

packaging underneath the wording "No leaks! No Mess!" and on the back of the packaging with

the wording "no spill spout with built-in vari-flo valve." As such, the Examining Attorney

concluded that "the mark merely informs the purchasing public that the applicant's product does

not leak or spill. The information does not amount to a source identifier for the goods." The

Examining Attorney also required that the descriptive wording "no-spill' and the universal

prohibition symbol be disclaimed apart from the mark as shown because "no-spill" is "highly

descri pti ve."

         31.      On August 11, 2011, Admar filed a response to the Office Action in application

no. 85167060 arguing that Defendants No-Spill Water Drop Design #1 did function as a

trademark. As support for these arguments, Admar submitted evidence and a declaration of the




                                                - 22 -
             Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 23 of 47




President of Admar, Joseph Hakim. Admar also entered a disclaimer of the word "no-spill" and

the universal prohibition symbol, which constituted an admission that those elements of the

proposed mark are not distinctive.

       32.     On September 16,2011, the PTO Examining Attorney issued a second Office

Action in application no. 85167060 accepting the disclaimer, but maintaining the refusal that the

Defendants No-Spill Water Drop Design #1 failed to function as a trademark. The Examining

Attorney reiterated that the proposed mark was "merely informational matter" that "does not

function as a trademark to identify and distinguish applicant's goods from those of others and to

indicate the source of applicant's goods." The Examining Attorney noted that the proposed mark

was being used for baby bottles with a "no-spill" feature. For example, the product was

described by applicant as follows: the "silicone spout is uniquely designed to reduce drips and

spills. The spout allows fluid to easily flow with the sucking action of the child." The

Examining Attorney found that it was "clear" that applicant's bottles were designed to reduce

spills and attached evidence of numerous third-party uses of other baby bottles that offer "no

spill" features like applicant's bottles. Based on this evidence, the Examining Attorney

concluded that the "no spill" feature was common, and that the information was pertinent to

consumers' decision to purchase the goods. Further, the Examining Attorney found that the

universal prohibition symbol in the proposed mark was also merely informational. Finally,

although Admar had submitted evidence in support of a claim of acquired distinctiveness, the

Examining Attorney noted that acquired distinctiveness was not an option to overcome a refusal

on the ground the proposed mark was merely informational.

       33.     On April 26, 2012, Admar's Application Serial No. 85167060 for Defendants No-

Spill Water Drop Design #1 was abandoned based on Admar's failure to respond to the




                                              - 23 -
              Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 24 of 47




Examining Attorney's September 16, 2011 Office Action refusing registration.

        34.     Admar is the listed owner of abandoned U.S. Trademark Application Serial No.

85030899 for the design shown below for "baby bottles," filed May 5, 2010. A copy of the

record for this application from the PTO's online database is attached as Exhibit 4. The design

below is referred to as "Defendants No-Spill Water Drop Design #2."




        35.     On June 26, 2010, the PTO Trademark Examining Attorney issued an Office

Action in application no. 85030899 refusing registration of Defendants No-Spill Water Drop

Design #2 on the ground that the proposed mark did not "function as a trademark to identify and

distinguish applicant's goods from those of others and to indicate the source of applicant's

goods." The Examining Attorney found that the proposed mark was "merely informational

matter." The Examining Attorney explained that the proposed mark appeared on the front of the

packaging with the wording "No leaks! No mess!," and on the back of the packaging with the

wording "no spill spout with built-in vari-flo valve." Accordingly, the Examining Attorney

concluded that the proposed mark "merely informs the purchasing public that the applicant's

product does not leak or spill. The information does not amount to a source identifier for the

goods." The Examining Attorney also required a disclaimer of the universal prohibition symbol.

        36.     On February 25,2011, Admar's Application Serial No. 85030899 was abandoned

based on Admar's failure to respond to the Examining Attorney's June 26, 2010 Office Action

refusing registration.

       37.      Admar is the listed owner of abandoned U.S. Trademark Application Serial No.




                                              - 24-
             Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 25 of 47




85008349 for the design shown below for "baby bottles" and "drinking cups, sports bottles sold

empty, drinking cups for infants and children, bottles with attached straws for infants and

children," filed April 7, 2010. Admar entered the following disclaimer for this application: "no

claim is made to the exclusive right to use the universal prohibition symbol apart from the mark

as shown." The application was also amended to seek registration under Section 2(t), which is

an admission that the proposed mark is not inherently distinctive. A copy of the record for this

application from the PTO's online database is attached as Exhibit 5. The design below is

referred to as "Defendants No-Spill Water Drop Design #3."




       38.      On June 26, 2010, the PTO Examining Attorney issued an Office Action in

application no. 85008349 refusing registration of Defendants No-Spill Water Drop Design #3 on

the ground that the proposed mark did not "function as a trademark to identify and distinguish

applicant's goods from those of others and to indicate the source of applicant's goods." The

Examining Attorney found that the proposed mark was "merely informational matter." The

Examining Attorney explained that the proposed mark was used on the corner of the product

label entitled "non-drip nipple design" and the proposed mark merely informs the purchasing

public that the applicant's product does not drip. Thus, the information did not amount to a

source identifier for the goods. The Examining Attorney also required a disclaimer of the

prohibition symbol.

       39.      On December 27,2010, Admar submitted an Office Action in application no.




                                               - 25 -
             Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 26 of 47




85008349 response seeking withdrawal of the PTO's refusal of registration based on arguments

and an affidavit submitted by the President of Admar, Joseph Hakim, in an attempt to show that

the Defendants No-Spill Water Drop Design #3 had acquired distinctiveness.

       40.     On May 3, 2011, the PTO Examining Attorney issued a second Office Action in

application no. 85008349 maintaining the refusal that the proposed mark was informational and

failed to function as a trademark. The Examining Attorney also found that the evidence

submitted by Adrnar of acquired distinctiveness was insufficient to establish secondary meaning.

       41.     On November 3,2011, Admar responded to the second Office Action in

application no. 85008349 by again arguing that the proposed mark had acquired distinctiveness

and submitted a second affidavit of the President of Admar, Joseph Hakim, in another attempt to

show that Defendants No-Spill Water Drop Design #3 had acquired distinctiveness.

       42.     On November 28,2011, the PTO Examining Attorney maintained its refusal for a

third time in application no. 85008349 on the ground that the mark was informational, failed to

function as a trademark, and had not acquired distinctiveness, notwithstanding Admar's

additional evidence and affidavit.

       43.     On May 29, 2012, Admar appealed the PTO's refusal to register application no.

85008349 to the TTAB and, concurrently, filed a request for reconsideration again arguing that

the proposed mark was entitled to registration. Adrnar submitted further evidence in support of

its arguments in its request for reconsideration.

       44.     On the same day, May 29, 2012, the TTAB remanded the case to the PTO

Examining Attorney to decide the request for reconsideration. On June 14,2012, the request for

reconsideration in application no. 85008349 was denied (and the refusal to register was again

maintained). The appeal to the TTAB was thus resumed on June 19,2012.




                                                - 26 -
              Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 27 of 47




        45.      On October 16,2012, Application No. 85008349 was abandoned based on

Admar's failure to file an appeal brief in its appeal of the refusal to register.

        46.     Admar is the listed owner of abandoned u.s. Trademark Application Serial No.

85008343 for the design shown below for "baby bottles" and "drinking cups, sports bottles sold

empty, drinking cups for infants and children, bottles with attached straws for infants and

children," filed April 7, 2010. Admar entered the following disclaimer for this application: "no

claim is made to the exclusive right to use the universal prohibition symbol apart from the mark

as shown." The application was also amended to seek registration under Section 2(t), which is

an admission that the proposed mark is not inherently distinctive. A copy ofthe record for this

application from the PTO's online database is attached as Exhibit 6. The design below is

referred to as "Defendants No-Spill Water Drop Design #4."




       47.      On June 26, 2010, the PTO Examining Attorney in application no. 85008343

issued an Office Action refusing registration of Defendants No-Spill Water Drop Design #4 on

the ground that the proposed mark did not "function as a trademark to identify and distinguish

applicant's goods from those of others and to indicate the source of applicant's goods." The

Examining Attorney found that the proposed mark was "merely informational matter." The

Examining Attorney explained that the proposed mark appeared on the cover of the product label

entitled "insulated no spill." Thus, the proposed mark merely informed the purchasing public

that the applicant's product does not spill. The Examining Attorney also required a disclaimer of



                                                 - 27 -
             Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 28 of 47




the prohibition symbol.

       48.      On December 27, 2010, Admar submitted an Office Action response in

application no. 85008343 seeking withdrawal of the PTO's refusal of registration based on

arguments and an affidavit submitted by the President of Admar, Joseph Hakim, in an attempt to

show that the Defendants No-Spill Water Drop Design #4 had acquired distinctiveness.

       49.      On May 3, 2011, the PTO Examining Attorney issued a second Office Action in

application no. 85008343 maintaining the refusal on the grounds that the proposed mark was

informational and failed to function as a trademark. The Examining Attorney also found that the

evidence submitted by Admar of acquired distinctiveness was insufficient to establish secondary

meanmg.

       50.     On November 29,2011, Application Serial No. 85008343 was abandoned based

on Admar's failure to file a response to the May 3,2011 Office Action refusing registration.

       51.     Admar is the listed owner of U.S. Trademark Registration No. 4223446 on the

Supplemental Register for the design shown below for "baby bottles" and "drinking cups, spOlis

bottles sold empty, drinking cups for infants and children, bottles with attached straws for infants

and children," registered October 9, 2012. This registration issued from application no.

85008336. The following disclaimer has been entered in the registration: "no claim is made to

the exclusive right to use the universal prohibition symbol apart from the mark as shown." A

copy of the record for this registration from the PTO's online database is attached as Exhibit 7.

The design below is referred to as "Defendants No-Spill Water Drop Design #5."




                                               - 28 -
              Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 29 of 47




        52.      The Supplemental Register is reserved for proposed marks that are non-distinctive

and that have not acquired distinctiveness and, thus, are not entitled to trademark protection or

registration under the Lanham Act. Registration of Defendants No-Spill Water Drop Design #5

on the Supplemental Registration constitutes an admission that the mark is neither distinctive nor

protectable.

        53.      On June 26, 2010, during the prosecution of Admar's Registration No. 4223446,

the PTO Examining Attorney refused registration of the Defendants No-Spill Water Drop Design

#5 in application no. 85008336 on the ground that it did not function as a trademark "to identify

and distinguish applicant's goods from those of others and to indicate the source of applicant's

goods." The Examining Attorney found that the design was "merely informational matter" and

further explained that the design was not being used as a trademark because "the proposed mark

appears in the comer left-hand, midway down, surrounded by the wording 'no leak, no spill, no

mess'" and "[t]he mark merely informs the purchasing public that that applicant's product does

not leak, spill or make a mess." The Examining Attorney concluded that "the information does

not amount to a source identifier for the goods .... "

        54.     On December 27,2010, Admar submitted an Office Action response in

application no. 85008336 seeking withdrawal of the PTO's refusal of registration based on

arguments and an affidavit submitted by the President of Admar, Joseph Hakim, in an attempt to

show that the Defendants No-Spill Water Drop Design #5 had acquired distinctiveness.

        55.     On May 3, 2011, the PTO Examining Attorney issued a second Office Action in

application no. 85008336 maintaining the refusal that the proposed mark was informational and

failed to function as a trademark. The Examining Attorney also found that the evidence

submitted by Admar of acquired distinctiveness was insufficient to establish secondary meaning.




                                                 - 29 -
              Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 30 of 47




        56.      On November 3,2011, Admar responded to the second Office Action in

application no. 85008336 by again arguing that the proposed mark had acquired distinctiveness

and submitted a second affidavit of the President of Admar in another attempt to show that

Defendants No-Spill Water Drop Design #5 had acquired distinctiveness.

        57.      On November 28,2011, the PTO maintained its refusal in application no.

85008336 for a third time on the ground that the mark was informational, failed to function as a

trademark, and had not acquired distinctiveness, notwithstanding Admar's additional evidence

and affidavit.

        58.      On May 29,2012, Admar appealed the PTO's decision in application no.

85008336 to the TTAB and, concurrently, filed a request for reconsideration arguing for the

fourth time that the proposed mark was entitled to registration. Admar submitted further

evidence in support of its arguments in its request for reconsideration.

        59.      On the same day, May 29, 2012, the TTAB remanded application no. 85008336

to the Examining Attorney to decide the request for reconsideration. On June 14,2012, the

request for reconsideration was denied (and the refusal to register was maintained for the fourth

time). The appeal to the TTAB was resumed on June 19,2012.

        60.      On August 8, 2012, Admar filed a second request for remand and amendment to

its application no. 85008336 to seek registration on the Supplemental Register. This amendment

constituted an admission that the mark was not distinctive and had not acquired secondary

meaning. The case was remanded to the Examining Attorney, the amendment to seek

registration on the Supplemental Registration was entered, and Supplemental Registration No.

4223446 issued.

       61.       Because a proposed mark that consists of merely informational matter is not




                                               - 30 -
                        Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 31 of 47




entitled to registration even on the Supplemental Register, the Examining Attorney erred in

granting Admar's request to amend its application to seek registration on the Supplemental

Register.

               62.                 Consistent with Admar's disclaimer of the word "no-spill" in Application Serial

No. 85167060 and the Examining Attorney's requirement to disclaim that wording, Defendants

use the word "non-drip" and "no-spill" generically, descriptively, and informationally in

connection with certain of their toddler cups on their nuby.com website as shown in the

representative screen captures below.
                                                                                                                                                                                                                     ,.
  '- ., . jii https ,rUJ'I'.CDm   "- :<_~-"          _:           ..   p:::!J ~    1   • .,.   X   _~   C ..puncl-....< ........ T.•.   )( ~_




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                              Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 32 of 47




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                        63.                As shown in the images below of representative NUBY bottles and toddler cups,

Defendants use "non-drip" and "no-spill" generically, descriptively, and informationally on

product packaging to communicate to consumers that those products do not spill, drip, or leak.

In fact, as noted by the PTO Examining Attorneys handling Admar's applications, the packaging

often includes additional descriptive and informational wording such as "no spill! no leak! no

mess!," "no leak, no drip, no mess" or variations thereof as shown below.




                                                                                                 - 32 -
            Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 33 of 47




                                Nuby




      64.     As shown in the image below of a representative NUBY toddler cup, "non-drip"

does not appear on NUBY toddler cups.




                                           - 33 -
             Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 34 of 47




       65.      Defendants use the designs below consisting of a prohibition symbol over a drop

or drops of water, which are identical to or variations of Defendants No-Spill Water Drop

Designs #1, #2, #3, #4, and #5 (collectively, "Defendants Non-Drip Water Drop Designs"), in

connection with certain of their toddler cups descriptively and informationally to communicate to

consumers that the products do not spill, drip, or leak.




       66.      As shown in the images below of representative NUBY products, Defendants use

the Defendants Non-Drip Water Drop Designs on the product packaging descriptively and

informationally to communicate to consumers that those products do not spill, drip, or leak. In

fact, as the PTO Examining Attorneys noted, the packaging often includes additional descriptive

and informative wording such as "no spill! no leak! no mess! ," "no leak, no drip, no mess" or

variations thereof as shown below. Defendants Non-Drip Water Drop Designs are sometimes

displayed as the "0" in the word "no-spill."




                                                - 34 -
      Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 35 of 47




67.     As shown in the image below of a representative NUBY "non-drip" toddler cup,




                                     - 35 -
           Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 36 of 47




Defendants Non-Drip Water Drop Designs do not appear on NUBY products.




       68. LNC is the listed owner of Design Patent No. D671,793 (the '793 Design Patent),

issued December 4,2012, covering the "drinking product" design shown below. A copy of this

design patent is attached as Exhibit 8.




       69. LNC is the listed owner of Design Patent No. D667,558 (the '558 Design Patent),

issued September 18, 2012, covering the "drinking cup cap" design shown below. A copy of this

design patent is attached as Exhibit 9.




                                            - 36 -
           Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 37 of 47




       70. LNC is the listed owner of Design Patent No. D634,439 (the' 439 Design Patent),

issued March 15, 2011, covering the "drinking cup top" design shown below. A copy of this

design patent is attached as Exhibit 10.




       71. LNC is the listed owner of Design Patent No. D617,465 (the' 465 Design

Patent), issued June 8, 2010, covering the "drinking cup" design shown below. A copy ofthis

patent is attached as Exhibit 11.




                                            - 37 -
              Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 38 of 47




                                         I
                                         ~   ...........   ~


                THIRD-PARTY USE OF DEFENDANTS' ALLEGED MARKS

        72.     Numerous third parties use the word "natural" and variations thereof descriptively

and infOlmationally in connection with baby bottles, baby bottle nipples, toddler cups, and/or

related products.

        73.     Numerous third parties use the words "non-drip," "no-drip," "non-spill," "no-

spill" and variations thereof descriptively and informationally in connection with baby bottles,

baby bottle nipples, toddler cups, and/or related products.

        74.     Numerous third parties use the international or universal prohibition symbol

consisting of a circle with a diagonal line through it (i.e., 0) and variations thereof descriptively

and informationally in connection with their products.

        75.     Numerous third parties use images of drops of water or variations thereof

descriptively and informationally in connection with their products.

                        DEFENDANTS' THREAT OF LITIGATION

        76.      Philips and its affiliates and LNC are competitors that are involved in pending

litigation in the U.S. and Europe relating to the parties' respective utility patent rights in certain




                                                    - 38 -
              Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 39 of 47




toddler cups. Specifically, lawsuits were initiated by LNC against Philips in Texas and Philips'

affiliates in Italy and Germany. Further, Nouri E. Hakim, the CEO of LNC and an inventor

listed on many ofLNC's patents, sued Avent America, Inc. (later acquired by Philips) in

Louisiana in 2002 alleging patent infringement. None of these actions involve the alleged

trademark, trade dress, and design patent rights addressed in this Complaint.

        77.      In a settlement communication! dated June 16,2013 relating to resolution of the

parties' pending litigation, Defendants demanded that Philips "discontinue use of the "Natural"

mark for its bottles and the non-drip logo for its cups," among other things. In exchange for such

discontinuance, among other things, Defendants stated that it would release Philips from certain

"current and future claims," (emphasis added) including but not limited to:

        •     all ofLNC's claims with respect to Philips' past use of its "Natural" mark for its
              bottles which LNC believes to be confusingly similar to LNC's longtime "Natural
              Nurser" trademark for its bottles (which will otherwise be the subject of a further
              lawsuit); (emphasis added)

        •     all ofLNC's claims with respect to Philips' past use of its non-drip logo for its cups
              which LNC believes to be confusingly similar to LNC's long time non-drip trademark
              (which will otherwise be the subject of further lawsuits in at least the U.S. and
              Europe); (emphasis added)

        •     all of LNC's claims with respect to Philips' no-spill cup silicone soft top, for which
              LNC has various design patents issued, other patents pending, and trade dress rights;

        78.      As shown above, Defendants have asserted that Philips' activities described above

constitute trademark, trade dress, and/or design patent infringement and Defendants have

indicated that they will bring lawsuits against Philips for these claims.

        79.      Additionally, as noted above, Defendants already sued Philips in multiple forums

for other claims. Moreover, Defendants have sued other companies offering competing baby


I This communication was sent by an attorney who has represented Defendants in other lawsuits filed by those
parties against other mother-and-child care competitors.




                                                      - 39 -
             Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 40 of 47




bottle, baby bottle nipple, and toddler cup products on claims similar to those asserted here.

       80.      As a result of Defendants' threat of litigation and the other circumstances

surrounding those threats, an actual, present and justiciable controversy has arisen between

Defendants and Philips regarding Philips' use of "natural" in connection with baby bottles and

baby bottle nipples, Philips' use of the word "non-spill" and the Philips Water Drop Design for

toddler cups, and Philips' use and sale of its Toddler Cup Soft Tops.

                                          COUNT ONE

                    (Declaration of Non-Infringement of "Natural Nurser")

       81.      Philips repeats and realleges each and every allegation set forth in paragraphs 1

through 80 of this Complaint.

       82.      Defendants have asserted that Philips' activities described above infringe

Admar's alleged "natural nurser" mark and have threatened to bring a lawsuit against Philips on

this basis. An actual, present, and justiciable controversy has arisen between Defendants and

Philips concerning Philips' use of "natural" in connection with its baby bottles and baby bottle

nipples.

       83.      Philips seeks a declaratory judgment that its use of "natural" and variations

thereof on baby bottles and baby bottle nipples as described above does not infringe Defendants'

alleged "natural nurser" mark, or any other marks in which Defendants claim rights, and does not

otherwise violate any of Defendants' trademark rights under federal, state, or common law,

including but not limited to under 15 U.S.C. § 1125(a).

       84.      Philips seeks a declaratory judgment that its use of "natural" and variations

thereof on baby bottles and baby bottle nipples as described above does not create a likelihood of

confusion with Defendants' alleged "natural nurser" mark, or any other marks in which




                                               - 40-
             Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 41 of 47




Defendants claim rights.

       85.     Philips seeks a declaratory judgment that Defendants alleged "natural nurser"

mark is generic or merely descriptive and has not acquired distinctiveness and, thus, is not

protectable as a trademark under federal, state and common law, including but not limited to 15

u.s.C. §§ 1052(e), (t), and 1064.

       86.     Philips seeks a declaratory judgment that its use of "natural" and variations

thereof as described above constitutes non-infringing descriptive fair use under federal, state, and

common law.

                                          COUNT TWO

                       (Declaration of Non-Infringement of "Non-Drip"
                        and Defendants Non-Drip Water Drop Designs)

       87.     Philips repeats and realleges each and every allegation set forth in paragraphs 1

through 86 of this Complaint.

       88.     Defendants have asserted that Philips' activities described above infringe

Defendants Non-Drip Water Drop Designs and have threatened to bring a lawsuit against Philips

on this basis. An actual, present, and justiciable controversy has arisen between Defendants and

Philips concerning Philips' use of the word "non-spill" and the Philips Water Drop Design.

       89.     Philips seeks a declaratory judgment that its use of the word "non-spill" and the

Philips Water Drop Design as described above do not infringe Defendants' alleged "non-drip"

word mark or Defendants Non-Drip Water Drop Designs, or any other marks in which

Defendants claim rights, and do not otherwise violate any of Defendants' trademark rights under

federal, state, or common law, including but not limited to under 15 U.S.C. §§ 1114, 1125(a).

       90.     Philips seeks a declaratory judgment that its use of the word "non-spill" and the




                                               - 41 -
              Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 42 of 47




Philips Water Drop Design as described above do not create a likelihood of confusion with

Defendants' alleged "non-drip" word mark or Defendants Non-Drip Water Drop Designs, or any

other marks in which Defendants claim rights.

        91.     Philips seeks a declaratory judgment that Defendants' alleged "non-drip" word

mark and Defendants Non-Drip Water Drop Designs are merely informational or generic and fail

to function as trademarks or, alternatively, are merely descriptive and have not acquired

distinctiveness, under federal, state, and common law, including but not limited to 15 U.S.C. §§

1064,1051-1052.

        92.     Philips seeks a declaratory judgment that its use of "non-spill" and Philips Water

Drop Design as described above constitutes non-infringing descriptive fair use under federal,

state, and common law.

                                         COUNT THREE

                (Declaration of Non-Infringement of Defendants' Trade Dress)

        93.     Philips repeats and realleges each and every allegation set forth in paragraphs 1

through 92 of this Complaint.

        94.     Defendants have asserted that Philips' use of its Toddler Cup Soft Tops infringe

Defendants' alleged trade dress and has threatened to bring a lawsuit against Philips on this

basis. An actual, present, and justiciable controversy has arisen between Defendants and Philips

concerning Philips' use and sale of its Toddler Cup Soft Tops and products incorporating those

tops.

        95.     LNC has already sued Regent Baby Products Corp., Mayborn USA, Inc., and

Toys "R" Us, Inc. in the Southern District of New York alleging infringement ofLNC's trade

dress and/or trademark rights.




                                               - 42 -
             Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 43 of 47




       96.     Philips seeks a declaratory judgment that its use and sale of the Toddler Cup Soft

Tops and products incorporating those tops as described above do not infringe Defendants'

alleged trade dress, or any other trade dress or trademarks in which Defendants claim rights, and

do not otherwise violate any of Defendants' trademark rights under federal, state, or common

law, including but not limited to under 15 U.S.C. §§ 1125(a).

       97.     Philips seeks a declaratory judgment that its use and sale of the Toddler Cup Soft

Tops and products incorporating those tops as described above do not create a likelihood of

confusion with Defendants' alleged trade dress, or any other trade dress or trademarks in which

Defendants claim rights.

                                      COUNT FOUR

               (Declaration of Non-Infringement of Defendants' Design Patents)

       98.     Philips repeats and realleges each and every allegation set forth in paragraphs 1

through 96 of this Complaint.

       99.     Defendants have asserted that Philips' sale of Philips' Toddler Cup Soft Tops

infringes certain ofLNC's design patents (which include, but are not limited to, the '793, '558,

'439, and '465 design patents shown above) and have threatened to bring a lawsuit against

Philips on this basis. An actual, present, and justiciable controversy has arisen between

Defendants and Philips concerning Philips' use and sale of its Toddler Cup Soft Tops.

       100.    Philips seeks a declaratory judgment that its manufacture, use, offer for sale,

andlor sale of the Toddler Cup Soft Tops and products incorporating those tops as described

above do not infringe LNC's design patents, and do not otherwise violate any of Defendants'

patent rights under federal law including but not limited to 35 U.S.C. §§ 101,271 et seq.

       101.    LNC has already sued Regent Baby Products Corp., Mayborn USA, Inc., and




                                               - 43 -
            Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 44 of 47




Toys "R" Us, Inc. in the Southern District of New York alleging infringement of one or both of

the '439 and '465 design patents.



                                     PRAYER FOR RELIEF

       WHEREFORE, pursuant to the Lanham Act, 15 U.S.C. § 1051, et seq., the Patent Act, 35

U.S.c. §§ 101, 171, et seq., and the Federal Declaratory Judgment Act, 28 U.S.c. §§ 2201 and

2202, Philips prays for relief as follows:

       A.      Declare that Philips and its affiliates 'and related companies (including but not

limited to Koninklijke Philips N.V., Philips Electronics UK, Avent Holdings, Ltd., Avent Group

Ltd., and Avent Ltd., collectively "the Philips Entities") and their customers and suppliers have

the right to manufacture, distribute, market, and sell in the United States baby bottles, baby bottle

nipples, and other baby-related products and associated packaging and promotional materials

bearing the terms "natural" and variations thereof as described above.

       B.      Declare that use of "natural" by the Philips Entities and their customers and

suppliers in connection with baby bottles, baby bottle nipples, and other baby-related products

and associated packaging and promotional materials does not infringe, create a likelihood of

confusion with, or otherwise impair or violate under any federal, state, or common law rights

Defendants may have in the alleged mark "natural nurser" or any other trademarks that

Defendants may have containing "natural" or a variation thereof.

       C.      Declare that the alleged mark "natural nurser" is generic or merely descriptive and

has not acquired distinctiveness for baby bottles (including without limitation, for "infant feeding

bottles for holding liquids") and baby bottle nipples and direct the PTO, pursuant to 15 U.S.C.

§1119, to abandon Application No. 85922613.




                                                - 44 -
            Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 45 of 47




       D.      Declare that the Philips Entities and their customers and suppliers have the right

to manufacture, distribute, market, and sell in the United States toddler cups and similar products

and associated packaging and promotional materials bearing the terms "no-drip," "non-drip,"

"no-spill," "non-spill" and variations thereof and the Philips Water Drop Design and variations

thereof as described above as descriptive fair uses.

       E.      Declare that use of "non-spill" and variations thereof in by the Philips Entities and

their customers and suppliers connection with toddler cups and associated packaging and

promotional materials does not infringe, create a likelihood of confusion with, or otherwise

impair or violate under any federal, state, or common law rights Defendants may have in

Defendants Non-Drip Water Drop Designs, the wording "non-drip" or "no-spill," or any other

trademarks that Defendants many have containing those elements.

       F.      Declare that Defendants Non-Drip Water Designs are merely informational matter

and do not function as trademarks and direct the PTa, pursuant to 15 U. S. c. § 1119, to cancel

with prejudice Registration No. 4223446.

       G.      Declare that Defendants do not have protectable trademark rights in the words

"non-drip," "non-spill," or variations thereof under 15 U.S.C. § 1051 et seq. because those terms

are generic or merely descriptive without acquired distinctiveness as used in connection with

Defendants' products.

       H.      Declare that the Philips Entities and their customers and suppliers have the right

to manufacture, distribute, market, and sell in the United States its Toddler Cup Soft Tops,

products incorporating those tops, and associated packaging and promotional materials

displaying those products.




                                               - 45 -
            Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 46 of 47




       I.      Declare that the sale, promotion, and advertising by the Philips Entities and their

customers and suppliers of Philips' Toddler Cup Soft Tops, products incorporating those tops,

and associated packaging and promotional material displaying those products, does not infringe

or create a likelihood of confusion with any of Defendants' trade dress.

       J.      Declare that the manufacture, use, offer for sale, or sale by the Philips Entities and

their customers and suppliers of Philips' Toddler Cup Soft Tops, products incorporating those

tops, and associated packaging and promotional material displaying those products, does not

infringe any of Defendants' design patent rights.

       K.      Awarding Philips its costs and attorneys' fees under 15 U.S.C. § 1117,35 U.S.C.

§ 285, and any other applicable laws.

       L.      Other relief as the Court may deem appropriate.




                                               - 46 -
         Case 2:13-cv-01695 Document 1 Filed 11/14/13 Page 47 of 47




Dated: November 14,2013                      Respectfully submitted,




                                             By: /s/ CraigA. Raabe
                                             Craig A. Raabe, ct04116
                                             Andrea Donovan Napp ct26637
                                             Robinson & Cole LLP
                                             280 Trumbull St.
                                             Hartford, CT 06103-3597
                                             Tel. No.: (860) 275-8200
                                             Fax No.: (860) 275-8299
                                             E-mail: craabe@rc.com
                                                      anapp@rc.com




                                             Of Counsel:

                                             David M. Kelly
                                             Robert D. Litowitz
                                             Stephanie H. Bald
                                             Mary E. Brownfield
                                             KELLY IP, L.L.P.
                                             1330 Connecticut Ave NW
                                             Suite 300
                                             Washington, D.C. 20036
                                             Phone (202) 808-3570
                                             Fax (202) 354-5232
                                             david.kelly@kelly-ip.com
                                             rob.litowitz@kelly-ip.com
                                             stephanie.bald@kelly-ip.com
                                             molly.brownfield@kelly-ip.com




                                    - 47 -

				
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