Southern Sales _ Marketing Group v. Yotrio

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Southern Sales _ Marketing Group v. Yotrio Powered By Docstoc
					                      IN THE UNITED STATES DISTRICT COURT
                     FOR THE NORTHERN DISTRICT OF GEORGIA
                                ATLANTA DIVISION

SOUTHERN SALES & MARKETING                          )
GROUP, INC.                                         )
                                                    )
                    Plaintiff,                      )
v.                                                  )   Case No. _________________
                                                    )
YOTRIO CORPORATION,                                 )   DEMAND FOR JURY TRIAL
                                                    )
                    Defendant.                      )

                                         COMPLAINT

            Plaintiff Southern Sales & Marketing Group, Inc. (Southern Sales) for its

Complaint against the defendant Yotrio Corporation (“Yotrio”) states as follows:


                                     Nature of the Action

            1.      This is an action for patent infringement in which Southern Sales

seeks damages and injunctive relief as a result of Yotrio’s actions in making,

selling and offering for sale products that infringe Southern Sales’ U.S. Patent No.

7,604,015, attached hereto as Exhibit 1.




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                                            The Parties

            2.      Southern Sales is a corporation organized under the laws of the State

of Georgia and has a principal place of business at 4400 Commerce Circle, SW,

Atlanta, Georgia 30336.

            3.      On information and belief, Yotrio is a corporation organized under the

laws of the State of California and has a place of business at 708 Nogales Street,

City of Industry, California 91748–1306. Yotrio is in the business of

manufacturing and selling outdoor patio furniture, including patio umbrellas.


                                     Jurisdiction and Venue

            4.      This Court has subject matter jurisdiction over the claims and causes

of action asserted in this complaint pursuant to at least 28 U.S.C. § 1338 because

this matter involves the infringement of United States patents.

            5.      Yotrio is subject to personal jurisdiction in this Court by virtue of its

actions in selling certain products, including patio umbrellas, within this judicial

District and the State of Georgia.

            6.      Venue is appropriate in this district and division pursuant to 28 U.S.C.

§ 1391(a) because a substantial part of the events or omissions giving rise to

Southern Sales’ claims occurred in this district and division.


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                                          Background

            7.      United States Patent No. 7,604,015 (“the ‘015 Patent”) was issued on

October 20, 2009, by the United States Patent and Trademark Office, based on an

application filed by Joseph Fraser on September 30, 2005. Southern Sales is the

owner of the ’015 patent by virtue of assignment from Mr. Fraser.

            8.      The ’015 patent relates generally to a patio umbrella having lights

located underneath the canopy on the ribs of the umbrella for providing light

beneath the canopy. The umbrella claimed in the ’015 patent includes a structural

rib configured to receive electrical components and associated wiring.

            9.      Yotrio manufactures, offers for sale, and sells an umbrella (“the

Accused Umbrella”) to The Home Depot, Inc. (“Home Depot”). Home Depot sells

the Yotrio Accused Umbrella under the designation MFG Model # UXM01602C.

Home Depot sells the Yotrio Accused Umbrella via the Internet and in its stores,

including stores within this judicial District and the State of Georgia. Home Depot

is headquartered in Atlanta, Georgia, within this judicial District and the State of

Georgia.




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US2000 11085346.1
                                           COUNT I.

                                      Patent Infringement

            10.     Southern Sales realleges, adopts and incorporates by reference the

allegations included within paragraphs 1 through 9 above as if they were fully set

forth herein.

            11.     Yotrio has commenced and continues acts of making, offering for sale

and selling within the United States the Accused Umbrella, which is covered by

the ’015 patent, without Southern Sales’ authority. Pursuant to 35 U.S.C. § 271,

such acts constitute infringement of the ’015 patent.

            12.     Southern Sales has been damaged by Yotrio’s making, offering for

sale and selling of the Accused Umbrella.


                                          COUNT II.

                                 Willful Patent Infringement

            13.     Southern Sales realleges, adopts and incorporates by reference the

allegations included within paragraphs 1 through 12 above as if they were fully set

forth herein.

            14.     Yotrio continues such acts of infringement despite knowledge of the

’015 patent, in disregard of the infringed patent, and with no reasonable basis to

believe it had a right to do the acts in question.
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            15.     Yotrio’s infringement of the ’015 patent is willful.


                                           COUNT III.

                                  Willful Patent Infringement

            16.     Southern Sales realleges, adopts and incorporates by reference the

allegations included within paragraphs 1 through 12 above as if they were fully set

forth herein.

            17.     Southern Sales continues to be damaged by Yotrio’s making, offering

for sale and selling of the Accused Umbrella and will continue to be damaged

unless Yotrio is enjoined by this Court.


                                        Requested Relief

            WHEREFORE, Plaintiff, Southern Sales, prays that this Court:

            (a)     award Southern Sales compensatory damages for Yotrio’s

infringement of the ’015 patent;

            (b)     award enhanced damages resulting from the knowing, deliberate and

willful nature of Yotrio’s illegal conduct, as provided in 35 U.S.C. § 284;

            (c)     award reasonable attorneys’ fees incurred by Southern Sales, as

provided in 35 U.S.C. § 285;

            (d)     enjoin Yotrio from further infringement of the ’015 patent; and

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            (e)     award Southern Sales such other and further relief as this Court deems

just and proper.

                                    Demand for Jury Trial

            Under Rule 38 of the Federal Rules of Civil Procedure, Southern Sales

requests a trial by jury of any issues triable of right by a jury.

                                                Respectfully submitted,




                                                Larry A. Roberts
                                                Georgia Bar No. 608725

KILPATRICK TOWNSEND & STOCKTON LLP
1100 Peachtree Street, Suite 2800
Atlanta, Georgia 30309
Telephone: 404-815-6500
Facsimile: 404-815-6555
Attorneys for Plaintiff Southern Sales & Marketing Group, Inc.




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