CASE 0:14-cv-04985 Document 1 Filed 12/12/14 Page 1 of 7

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA
Nifty Home Products, Inc.
Plaintiff,
v.

Civil Action #:_____________

Big Lots Stores, Inc.

Defendant.
COMPLAINT
Plaintiff Nifty Home Products, Inc. (Nifty), for its Complaint against Defendant Big
Lots Stores, Inc. (Big Lots), states and alleges as follows:
PARTIES
1.

Plaintiff Nifty is a Minnesota corporation with its principal place of business in

Madison Lake, Minnesota. Nifty designs and sells a variety of kitchen accessories.
2.

Defendant Big Lots, on information and belief, is an Ohio corporation having its

corporate headquarters in Columbus, Ohio.

JURISDICTION AND VENUE
3.

This is a claim of patent infringement under 35 U.S.C. 271 and 281-285.

4.

This Court has jurisdiction over the subject matter over Niftys federal claims by

virtue of 28 U.S.C. 1331 and 1338(a) and (b).

5.

This Court has personal jurisdiction over defendant Big Lots, as Big Lots has

engaged in acts of patent infringement in the United States and in the District of Minnesota.
Defendant Big Lots regularly does business in the state of Minnesota by distributing its products
in Big Lots stores operating in the United States, including Minnesota. Big Lots allows

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Minnesota customers to purchase infringing products in Big Lots stores located in Minnesota.
Venue is proper under 28 U.S.C. 1391(b) as defendant Big Lots has committed acts of
infringement in this District.
PATENTS-IN-SUIT
6.

On or about February 20, 2007, the United States Patent and Trademark Office

(USPTO) issued U.S. Design Patent D536,936 (the 936 Patent) for the Single Cup
Beverage Container Holder to Frank Tiemann based on an application filed on or about January
5, 2006. The 936 Patent was assigned to Nifty. A copy of the 936 Patent is attached to this
Complaint as Exhibit 1.
7.

On or about February 9, 2010, the USPTO issued U.S. Design Patent D609,533

(the 533 Patent) for Coffee Pod Carousel to Frank Tiemann based on an application filed on
or about March 10, 2009. The 533 Patent is assigned to Nifty. A copy of the 533 Patent is
attached to this Complaint as Exhibit 2
8.

On or about May 22, 2012, the USPTO issued U.S. Design Patent D660,088 (the

088 Patent) for a Drawer For Holding Beverage Cartridges to Frank Tiemann based on an
application filed on or about Feb 23, 2011. The 088 Patent is assigned to Nifty. A copy of the
088 Patent is attached as Exhibit 3.
9.

On or about April 1, 2014, the USPTO issued U.S. Design Patent D701,733 (the

733 Patent) for a Drawer for Holding Beverage Cartridges to Frank Tiemann based on an
application filed on or about October 19, 2012. The 733 Patent is assigned to Nifty. A copy of
the 733 Patent is attached as Exhibit 4.

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BACKGROUND
10.

Nifty has been selling its patented beverage cartridge carousels and drawers

directly to consumers, and wholesale to a variety of retailers, since at least 2006. Niftys
patented products have been marked with their individual patent numbers.
11.

In late 2014, Nifty became aware that Big Lots was offering for sale and selling in

its retail stores a coffee pod carousel which infringes the 936 and 533 Patents. The infringing
coffee pod carousel is sold by Big Lots under the GREAT GATHERINGS trademark.
12.

GREAT GATHERINGS is a registered trademark of Consolidated Property

Holdings, Inc., a Nevada corporation having its principal place of business at 330 East Warm
Springs Road, Las Vegas, Nevada 89119. According to a Notice of Opposition filed collectively
by Big Lots and Consolidated Property Holdings, Inc., Consolidated Property Holdings, Inc.
owns the intellectual property used by Big Lots.
13.

Nifty purchased the GREAT GATHERINGS Coffee Pod Carousel from the Big

Lots store located at 10590 France Avenue South, Bloomington, Minnesota 55431-3538. The
packaging for the GREAT GATHERINGS Coffee Pod Carousel indicates that Big Lots is the
distributor of the GREAT GATHERINGS Coffee Pod Carousel, and that the GREAT
GATHERINGS Coffee Pod Carousel is imported by Big Lots from China.
14.

Nifty also discovered in late 2014 that Big Lots was offering for sale and selling

in its retail stores a coffee pod drawer under the GREAT GATHERINGS trademark which
infringes the 088 and 733 Patents.
15.

Nifty purchased the GREAT GATHERINGS Coffee Pod Drawer from the

Bloomington, Minnesota Big Lots store. The packaging for the GREAT GATHERINGS Coffee
Pod Drawer indicates that Big Lots is the distributor of the GREAT GATHERINGS Coffee Pod

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Drawer and that the GREAT GATHERINGS Coffee Pod Drawer is imported by Big Lots from
China.

COUNT I
(PATENT INFRINGEMENT 936 PATENT)
16.

The allegations of Paragraphs 1 to 15 of the Complaint are re-alleged and

incorporated herein by reference.

17.

Big Lots has infringed and continues to infringe the 936 Patent by offering to sell

and selling in the United States, and importing into the United States, without Niftys
authorization, coffee pod carousels that are substantially the same as the design illustrated and
described in the 936 Patent. The resemblance between Niftys patented Single Cup Beverage
Container Holder and Big Lots unauthorized GREAT GATHERINGS Coffee Pod Carousel is
such as to permit an ordinary observer to purchase the unauthorized GREAT GATHERINGS
Coffee Pod Carousel supposing it to be the Nifty Single Cup Beverage Container Holder.
18.

Big Lots actions have caused, and will continue to cause, irreparable harm to

Nifty unless enjoined.

19.

Big Lots infringement of the 936 Patent has been willful and deliberate, and

undertaken despite knowledge of the 936 Patent.

COUNT II
(PATENT INFRINGEMENT 533 PATENT)
20.

The allegations of Paragraphs 1 to 19 of the Complaint are re-alleged and

incorporated herein by reference.

21.

Big Lots has infringed and continues to infringe the 533 Patent by offering to sell

and selling in the United States, and importing into the United States, without Niftys

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authorization, coffee pod carousels that are substantially the same as the design illustrated and
described in the 936 Patent. The resemblance between Niftys patented Coffee Pod Carousel
and Big Lots unauthorized GREAT GATHERINGS Coffee Pod Carousel is such as to permit an
ordinary observer to purchase the unauthorized GREAT GATHERINGS Coffee Pod Carousel
supposing it to be the Nifty Coffee Pod Carousel.
22.

Big Lots actions have caused, and will continue to cause, irreparable harm to

Nifty unless enjoined.

23.

Big Lots infringement of the 533 Patent has been willful and deliberate, and

undertaken despite knowledge of the 533 Patent.

COUNT III
(PATENT INFRINGEMENT 088 PATENT)
24.

The allegations of Paragraphs 1 to 23 of the Complaint are re-alleged and

incorporated herein by reference.

25.

Big Lots has infringed and continues to infringe the 088 Patent by offering to sell

and selling in the United States, and importing into the United States, without Niftys
authorization, coffee pod drawers that are substantially the same as the design illustrated and
described in the 088 Patent. The resemblance between Niftys patented Drawer For Holding
Beverage Cartridges and Big Lots unauthorized GREAT GATHERINGS Coffee Pod Drawer is
such as to permit an ordinary observer to purchase the unauthorized GREAT GATHERINGS
Coffee Pod Drawer supposing it to be the Nifty Drawer For Holding Beverage Cartridges.
26.

Big Lots actions have caused, and will continue to cause, irreparable harm to

Nifty unless enjoined.

27.

Big Lots infringement of the 088 Patent has been willful and deliberate, and

undertaken despite knowledge of the 088 Patent.

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COUNT IV
(PATENT INFRINGEMENT 733 PATENT)
28.

The allegations of Paragraphs 1 to 27 of the Complaint are re-alleged and

incorporated herein by reference.

29.

Big Lots has infringed and continues to infringe the 088 Patent by offering to sell

and selling in the United States, and importing into the United States, without Niftys
authorization, coffee pod drawers that are substantially the same as the design illustrated and
described in the 088 Patent. The resemblance between Niftys patented Drawer For Holding
Beverage Cartridges and Big Lots unauthorized GREAT GATHERINGS Coffee Pod Drawer is
such as to permit an ordinary observer to purchase the unauthorized GREAT GATHERINGS
Coffee Pod Drawer supposing it to be the Nifty Drawer For Holding Beverage Cartridges.
30.

Big Lots actions have caused, and will continue to cause, irreparable harm to

Nifty unless enjoined.

31.

Big Lots infringement of the 088 Patent has been willful and deliberate, and

undertaken despite knowledge of the 088 Patent.

DEMAND
WHEREFORE, Plaintiff Nifty prays for judgment as follows:
(a)

In favor of Nifty and against Big Lots on all counts of the Complaint.

(b)

Preliminarily and permanently enjoining and restraining Big Lots, its officers, directors,
agents, servants, employees, attorneys, affiliated companies and all others acting under or
through them, from directly infringing or inducing others to infringe U.S. Design Patents
D536,936; D609,533; D660,088; and D701,733.

(c)

Awarding Nifty damages under 35 U.S.C. 284 and 289, including Big Lots profits
and treble damages for willful infringement.

CASE 0:14-cv-04985 Document 1 Filed 12/12/14 Page 7 of 7

(d)

Awarding Niftys reasonable attorneys fees, costs, expenses, and interest pursuant to 35
U.S.C. 285 and other applicable law.

(e)

Awarding Nifty such other relief as the Court may deem just and proper.
JURY DEMAND
Plaintiff demands a trial by jury of all issues so triable.

Date: December 12, 2014

s/Peter G. Nikolai/
Peter G. Nikolai (#322,052)
James T. Nikolai (#144,101)
NIKOLAI & MERSEREAU, P.A
900 Second Avenue South, Suite 1550
Minneapolis, MN 55402
Telephone: (612) 339-7461
Facsimile: (612) 349-6556
ATTORNEYS FOR PLAINTIFF
NIFTY HOME PRODUCTS, INC.

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EXHIBIT 1

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EXHIBIT 2

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EXHIBIT 3

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EXHIBIT 4

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JS 44 (Rev. 12/12)

CIVIL COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

Nifty Home Products, Inc.

Big Lots Stores, Inc.

(b) County of Residence of First Listed Plaintiff

County of Residence of First Listed Defendant

Blue Earth

(EXCEPT IN U.S. PLAINTIFF CASES)

NOTE:

(IN U.S. PLAINTIFF CASES ONLY)

IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

Attorneys (If Known)

(c) Attorneys (Firm Name, Address, and Telephone Number)

Nikolai & Mersereau, P.A., 900 Second Avenue South, Suite 1550,
Minneapolis, MN 55402, (612) 339-7461

II. BASIS OF JURISDICTION (Place an X in One Box Only)

1

U.S. Government
Plaintiff

Federal Question
(U.S. Government Not a Party)

U.S. Government
Defendant

Diversity
(Indicate Citizenship of Parties in Item III)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff

(For Diversity Cases Only)
PTF
Citizen of This State
1

DEF
1

and One Box for Defendant)

PTF
DEF
Incorporated or Principal Place
4
4
of Business In This State

Citizen of Another State

Incorporated and Principal Place

of Business In Another State

Citizen or Subject of a
Foreign Country

Foreign Nation

IV. NATURE OF SUIT (Place an X in One Box Only)

CONTRACT

TORTS

110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment
151 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excludes Veterans)
153 Recovery of Overpayment
of Veterans Benefits
160 Stockholders Suits
190 Other Contract
195 Contract Product Liability
196 Franchise

REAL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property

PERSONAL INJURY
310 Airplane
315 Airplane Product
Liability
320 Assault, Libel &
Slander
330 Federal Employers
Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
362 Personal Injury Medical Malpractice
CIVIL RIGHTS
440 Other Civil Rights
441 Voting
442 Employment
443 Housing/
Accommodations
445 Amer. w/Disabilities Employment
446 Amer. w/Disabilities Other
448 Education

FORFEITURE/PENALTY

PERSONAL INJURY
365 Personal Injury Product Liability
367 Health Care/
Pharmaceutical
Personal Injury
Product Liability
368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
370 Other Fraud
371 Truth in Lending
380 Other Personal
Property Damage
385 Property Damage
Product Liability
PRISONER PETITIONS
Habeas Corpus:
463 Alien Detainee
510 Motions to Vacate
Sentence
530 General
535 Death Penalty
Other:
540 Mandamus & Other
550 Civil Rights
555 Prison Condition
560 Civil Detainee Conditions of
Confinement

625 Drug Related Seizure

of Property 21 USC 881
690 Other

BANKRUPTCY
422 Appeal 28 USC 158
423 Withdrawal
28 USC 157
PROPERTY RIGHTS
820 Copyrights
830 Patent
840 Trademark

LABOR
710 Fair Labor Standards
Act
720 Labor/Management
Relations
740 Railway Labor Act
751 Family and Medical
Leave Act
790 Other Labor Litigation
791 Employee Retirement
Income Security Act

SOCIAL SECURITY
861 HIA (1395ff)
862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(g))

FEDERAL TAX SUITS

870 Taxes (U.S. Plaintiff
or Defendant)
871 IRSThird Party
26 USC 7609

OTHER STATUTES

375 False Claims Act

400 State Reapportionment
410 Antitrust
430 Banks and Banking
450 Commerce
460 Deportation
470 Racketeer Influenced and
Corrupt Organizations
480 Consumer Credit
490 Cable/Sat TV
850 Securities/Commodities/
Exchange
890 Other Statutory Actions
891 Agricultural Acts
893 Environmental Matters
895 Freedom of Information
Act
896 Arbitration
899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
950 Constitutionality of
State Statutes

IMMIGRATION
462 Naturalization Application
465 Other Immigration
Actions

V. ORIGIN (Place an X in One Box Only)

1 Original
Proceeding

2 Removed from
State Court

Remanded from
Appellate Court

4 Reinstated or
Reopened

5 Transferred from
Another District
(specify)

6 Multidistrict
Litigation

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

35 U.S.C. et seq.

VI. CAUSE OF ACTION Brief description of cause:

Patent infringement.

CHECK IF THIS IS A CLASS ACTION

VII. REQUESTED IN
UNDER RULE 23, F.R.Cv.P.
COMPLAINT:
VIII. RELATED CASE(S)
(See instructions):
IF ANY
JUDGE
DATE

CHECK YES only if demanded in complaint:

Yes
No
JURY DEMAND:

DEMAND $

DOCKET NUMBER

SIGNATURE OF ATTORNEY OF RECORD

/Peter G. Nikolai/

12/12/2014
FOR OFFICE USE ONLY
RECEIPT #

AMOUNT

Print

APPLYING IFP

Save As...

JUDGE

MAG. JUDGE

Reset

JS 44 Reverse (Rev. 12/12)

CASE 0:14-cv-04985 Document 1-5 Filed 12/12/14 Page 2 of 2

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a)

(b)

(c)

Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".

II.

Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)

III.

Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.

IV.

Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is
sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than
one nature of suit, select the most definitive.

V.

Origin. Place an "X" in one of the six boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407.
When this box is checked, do not check (5) above.

VI.

Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII.

Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.