Tervis Tumbler v. Gossi - Complaint

Case 8:16-cv-02704-MSS-TBM Document 1 Filed 09/20/16 Page 1 of 5 PageID 1
UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
- - - - -- - - - - - - - - - - - - - - - - - - - TERVIS TUMBLER COMPANY, INC.,
:
:
Plaintiff,
:
:
v.
: Case No.:
:
GOSSI, INC., d/b/a GREEN CANTEEN,
: COMPLAINT
and FIVE BELOW, INC.,
:
:
Defendants. :
- - - - - - - -- - - - - - - - - - - - - - - - - COMPLAINT FOR PATENT INFRINGEMENT AND DEMAND FOR
JURY TRIAL, INJUNCTIVE RELIEF SOUGHT
Plaintiff Tervis Tumbler Company, Inc. (Tervis or Plaintiff Tervis), by and through
its attorneys, brings this Complaint against Defendants, Gossi, Inc., Inc., d/b/a Green Canteen
(Green Canteen or Defendant Green Canteen) and Five Below, Inc. (Five Below or
Defendant Five Below) (Green Canteen and Five Below collectively Defendants) and
alleges as follows:
NATURE OF THE ACTION
1.
This is an action brought pursuant to the Patent Laws of the United States, 35
U.S.C. 271, et. seq.

PARTIES
2.
Plaintiff Tervis is a corporation organized under the laws of the State of Florida
with its principal place of business at 201 Triple Diamond Boulevard, North Venice, Florida
34275.
SLK_SAR:#384958v1
3.
Upon information and belief, Defendant Green Canteen is a corporation organized
under the laws of the State of Ohio with a principal place of business at 30255 Solon Industrial
Parkway, Solon, Ohio 44139-4323 that does business as Green Canteen.
4.
Upon information and belief, Defendant Five Below is a corporation organized
under the laws of the State of Connecticut with a principal place of business at 1818 Market
Street, Suite 1900, Philadelphia, PA 19103.
JURISDICTION AND VENUE
5.
This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
1331 and 1338(a).

6.
This Court has personal jurisdiction over Defendants because Defendants are
subject to the general and specific jurisdiction in the State of Florida.

established minimum contacts with this judicial district.
Defendants have
Upon information and belief,
Defendants are doing business in the State of Florida, including manufacturing, selling, and/or
offering to sell products in this judicial district.
Defendants actions constitute patent
infringement in this judicial district in violation of 35 U.S.C. 271 and place infringing products
into the stream of commerce, with the knowledge and understanding that such products are sold
in this judicial district. The acts by Defendants cause injury to Tervis and have occurred within
this judicial district.
7.
Venue is proper in this judicial district pursuant to 24 U.S.C. 1391 and 1400
and because Defendants transact business within this judicial district and offers for sale in this
judicial district products that infringe U.S. Patent No. D669,310.
SLK_SAR:#384958v1
COUNT 1 INFRINGEMENT OF U.S. PATENT NO. D669,310

8.
Tervis reasserts and incorporates herein by reference the allegations of all
preceding paragraphs of this Complaint as if fully set forth herein.

9.
In March, 2011, Tervis completed its unique ornamental design for a portable
beverage container. On August 30, 2011 an application for a United States Letters Patent was
filed with the United States Patent and Trademark Office (USPTO) to protect this ornamental
design.
10.
Shortly after the application for patent was filed, Tervis began successfully
marketing the portable beverage container incorporating its ornamental design.

11.
On October 23, 2012 the United States Patent and Trademark Office duly and
legally issued U.S. Patent No. D669,310 (the 310 Patent or the patent-in-suit) entitled
Portable Beverage Container. A true and correct copy of the 310 Patent is attached hereto as
Exhibit A.
12.
Tervis is the owner of all right, title and interest in the 310 Patent. Tervis has
owned the 310 Patent throughout the period of Defendants infringing acts.
13.
Defendants have recently begun marketing portable beverage containers that
infringe the 310 Patent (the accused products). A photograph of the accused products sold by
Defendants is attached as Exhibit B.
14.
Upon information and belief, Defendants became aware of the successful launch
of the Tervis portable beverage container covered by the 310 Patent and copied the same. A
copy of a Tervis portable beverage container covered by the 310 Patent is attached as Exhibit C.
15.
Upon information and belief, Defendants manufacture or have manufactured for it
and sell the accused products to customers.
SLK_SAR:#384958v1
16.
Upon information and belief, Defendants had knowledge that the accused
products are an infringement of the patent-in-suit and have willfully made and sold the accused
products.
17.
Defendants have infringed and are still infringing the 310 Patent by making,
using and selling the accused products.

18.
Defendants infringement have injured Tervis and Tervis is entitled to recover
damages adequate to compensate for such infringement, including but not limited to, lost profits,
a reasonable royalty award, disgorgement of the profits received by Defendants, treble damages,
costs, pre- and post-judgment interest at the maximum allowable rate, attorneys fees, and such
other and further relief as this Court deems just and proper.
PRAYER FOR RELIEF
WHEREFORE Tervis respectfully requests the Court to grant the following relief:
A.
A judgment that the Defendants have infringed the 310 Patent;
B.
A permanent injunction prohibiting Defendants, their predecessors, successors,
parents, subsidiaries, and affiliates thereof, including, but not limited to, all past or present
directors, officers, agents, servants, employees, attorneys, representatives, and those persons in
active concert or participation with them who receive actual notice of the Order, from
committing further acts of infringement;
C.
An award of damages to Tervis, including via 35 U.S.C. 289, an increase in
damages under 28 U.S.C. 284, together with pre-judgment interest from the date the
infringement began and post-judgment interest;
D.
A declaration that the Defendants have willfully infringed the claim of the 310
Patent;
SLK_SAR:#384958v1
E.
A finding that this case is exceptional within the meaning of 35 U.S.C. 285,
and an award to Tervis of its reasonable attorney fees and expenses;

F.
An award of costs to Tervis; and
G.
Such other and further relief as this Court deems proper and just.
JURY DEMAND
Pursuant to FED. R. CIV. P. 38(b), Plaintiff Tervis hereby demands a trial by a jury on all
issues so triable.
Dated: September 19, 2016
/s/ Douglas A. Cherry

_
Douglas A. Cherry, Esq.
Florida Bar No. 0333130
Shumaker, Loop & Kendrick, LLP
240 South Pineapple Avenue
10th Floor
Sarasota, Florida 34236
Telephone: 941-366-6660
Facsimile: 941-366-3999
dcherry@slk-law.com
OF COUNSEL
Manny D. Pokotilow (PA I.D. No.13310)
(pro hac vice admission anticipated)
CAESAR RIVISE, PC
1635 Market Street
7 Penn Center 12th Floor
Philadelphia PA 19103-2212
215-567-2010 (P)
215-751-1142 (F)
mpokotilow@caesar.law
SLK_SAR:#384958v1
Attorneys for Plaintiff

Tervis Tumbler Company, Inc.
Case 8:16-cv-02704-MSS-TBM Document 1-1 Filed 09/20/16 Page 1 of 9 PageID 6
EXHIBIT A
I
(12)
111111 II 11111 111111M111191,1111111 11111111111111111 1111
United States Design Patent (10) Patent No.:

Barreto et 81.
(45)
Date of Patent:
(54) PORTABLE BEVERAGE CONTAINER
D586,184 S
0624,361 5 *
(75)
1)626,416 S
(73)
Inventors: Aldo Javier Barreto, Amelia, OH (US);

Yashodhan H. Dhuru, Cincinnati, OH
(US); Ares M. Marasligiller, Cincinnati,
OH (US)
10634,158 S *
1)635,457 S
1)657,195 S
1 662,360 S
US D669,310 S
** Oct. 23, 2012
2/2009 Miller et al.
D7/511
9/2010 Roth et al.
07/509
11/2010 avowal el al.
3/2011 Roth et al.

4/2011 Lane
4/2012 Meneeles et al.
6/2012 George
09/503
1)7/396.2
09/503
07/510
07/510
* cited by examiner
Assignee: Tervis Thinbkr Company, North
Venice, rt (US)
(ee) Term:
Primary Exaiiner Marianne Pondozzi

(74) Attorney, Agent, or Firm Caesar, Rivise, Bernstein,
14 Years
(21)
Appl. No.: 29/4011,555
(22)
Filed:
Cohen & Pokotilow, t,td.
Aug. 30, 2011
(51) LOC (9) CI.

07-01
(52) U.S. Cl.
D7/510; 1)7/511;1)7/532
(58) Field of Classification Search
1)7/510,
1)7/511, 509, 532, 523; 220/703, 705, 713,
220/592.16
See application file for complete search history.
References Cited
(56)
U.S. PATENT DOCUMENTS

0528,921 S
D539,607 S
1)539,608 .5
D550,562 S
0565,353 S
9/2006 Leoneavallo el al.

4/2007 Lapsker
09/530
D7/510
4/2007 Lapsker
1)7/510
9/2007 Yew
4/2008 Roth etal.
D7/510
(57)
CLAIM
The ornamental design for a portable beverage container, as
shown and described.
1)ESCRIPT1()N
PIG. 1 is a front left perspective view of a portable beverage
container showing our new design;
FIG. 2 is a rear right perspective view of the design;
FIG. 3 is a front elevation view of the design;
FIG. 4 is a rear elevation view of the design;
FIG. 5 is a left side elevational view of the design;
FIG. 6 is a right side elevational view of the design;
FIG. 7 is an enlarged top plan view of the design; and,
FIG. 8 is an enlarged bottom plan view of the design.
09/538
1 Claim, 7 Drawing Sheets
U.S. Patent
Fig. 1
Oct. 23, 2012
Sheet 1 of 7
US D669,310 S
U.S. Patent
Fig. 2
Oct. 23, 2012
Sheet 2 of 7
US D669,310 S
U.S. Patent
Oct. 23, 2012
Fig. 3
Sheet 3 of 7
US D669,310 S
U.S. Patent
Oct. 23, 2012
Fig. 4
Sheet 4 of 7
US D669,310 S
U.S. Patent
Fig. 5
Oct. 23, 2012
Sheet 5 of 7
US 1)669,310 S
U.S. Patent
Oct. 23, 2012
Sheet 6 of 7
Fig. 6
---
US D669,310 S
U.S. Patent
Oct. 23, 2012
Sheet 7 of 7
US D669,310 S
EXHIBIT B
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BRA Free
Double Wall
Plastic Titian
Hydration Bottle
FeaNtes:
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absoub itcomiul chernirmis
rilp coo
Smoolts guitar.. *NI MO pores or
OM** k) hOki bads*:
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Greene
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EXHIBIT C

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Case 8:16-cv-02704-MSS-TBM Document 1 Filed 09/20/16 Page 1 of 5 PageID 1

UNITED STATES DISTRICT COURT

U.S.C. 271, et. seq.

Case 8:16-cv-02704-MSS-TBM Document 1 Filed 09/20/16 Page 2 of 5 PageID 2

Upon information and belief, Defendant Green Canteen is a corporation organized

Upon information and belief, Defendant Five Below is a corporation organized

1331 and 1338(a).

subject to the general and specific jurisdiction in the State of Florida.

Upon information and belief,

Defendants actions constitute patent

Case 8:16-cv-02704-MSS-TBM Document 1 Filed 09/20/16 Page 3 of 5 PageID 3

COUNT 1 INFRINGEMENT OF U.S. PATENT NO. D669,310

Tervis reasserts and incorporates herein by reference the allegations of all

preceding paragraphs of this Complaint as if fully set forth herein.

marketing the portable beverage container incorporating its ornamental design.

Defendants have recently begun marketing portable beverage containers that

Upon information and belief, Defendants manufacture or have manufactured for it

and sell the accused products to customers.

Case 8:16-cv-02704-MSS-TBM Document 1 Filed 09/20/16 Page 4 of 5 PageID 4

using and selling the accused products.

Defendants infringement have injured Tervis and Tervis is entitled to recover

A judgment that the Defendants have infringed the 310 Patent;

A permanent injunction prohibiting Defendants, their predecessors, successors,

An award of damages to Tervis, including via 35 U.S.C. 289, an increase in

Case 8:16-cv-02704-MSS-TBM Document 1 Filed 09/20/16 Page 5 of 5 PageID 5

and an award to Tervis of its reasonable attorney fees and expenses;

An award of costs to Tervis; and

/s/ Douglas A. Cherry

Attorneys for Plaintiff

Case 8:16-cv-02704-MSS-TBM Document 1-1 Filed 09/20/16 Page 1 of 9 PageID 6

Case 8:16-cv-02704-MSS-TBM Document 1-1 Filed 09/20/16 Page 2 of 9 PageID 7

111111 II 11111 111111M111191,1111111 11111111111111111 1111

United States Design Patent (10) Patent No.:

(54) PORTABLE BEVERAGE CONTAINER

Inventors: Aldo Javier Barreto, Amelia, OH (US);

2/2009 Miller et al.

9/2010 Roth et al.

11/2010 avowal el al.

3/2011 Roth et al.

Primary Exaiiner Marianne Pondozzi

Appl. No.: 29/4011,555

Cohen & Pokotilow, t,td.

Aug. 30, 2011

(51) LOC (9) CI.

U.S. PATENT DOCUMENTS

9/2006 Leoneavallo el al.

1 Claim, 7 Drawing Sheets

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Oct. 23, 2012

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Oct. 23, 2012

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Oct. 23, 2012

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Oct. 23, 2012

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Oct. 23, 2012

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Oct. 23, 2012

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Oct. 23, 2012

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