Case 1:11-cv-11786-JLT Document 1

Filed 10/07/11 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

____________________________________ POTPOURRI GROUP, INC., } Plaintiff } } } v. } } } STAR FABRICS, INC., } Defendant. } ____________________________________}

Civil Action No.:____________________ Complaint for Declaratory Judgment of Non-Infringement (copyright)

Jury Trial Demand

Comes now your plaintiff the Potpourri Group, Inc. (Potpourri) and alleges as follows:

THE PARTIES 1. Plaintiff Potpourri is a corporation of the Commonwealth of

Massachusetts and has its principal place of business at 222 Mill Road, Chelmsford, MA 01824. 2. other articles. 3. Potpourri regularly purchases products from third parties for re-sale via Plaintiff Potpourri produces catalogues that include gifts, clothing, and

Potpourri's catalogues and website. One of Potpourri's catalogues is called "NorthStyle".

Case 1:11-cv-11786-JLT Document 1

Filed 10/07/11 Page 2 of 7

4.

Upon information and belief, defendant Star Fabrics, Inc. ("Star") is a

California corporation having a business address of 1140 East Walnut Street, Los Angeles, California, 90011-1351. 5. Star sells or supplies fabric into foreign countries where businesses

regularly engage in copying. 6. 7. Star has sued numerous companies for copyright infringement. Many such companies sued by Star were alleged to have sold clothing

articles purchased abroad which included Star's alleged copyrighted fabric designs. 8. Recently, Star threatened Potpourri with legal action contending that

Potpourri is engaged in copyright infringement. 9. Potpourri denies Star's contentions and allegations and thus an actual,

justiciable case or controversy exists between the parties.

JURISDICTION 10. This court has subject matter jurisdiction over this claim pursuant to the

Copyright Act, 17 U.S.C. 101 et. seq. and 28 U.S.C. 1331 and 1338(a) in that this is an action arising under, and requires interpretation of, the Copyright Act. There is also a diversity of citizenship. Defendant Star has asserted that the amount in controversy exceeds $75,000.00, exclusive of any interest or cost. This action is also brought under the Declaratory Judgment Act, 28 U.S.C. 2201(a). 11. Jurisdiction over Star is proper in that, upon information and belief, Star

conducts business in the Commonwealth of Massachusetts and contracts to supply services and/or products in the Commonwealth of Massachusetts. Further, jurisdiction

Case 1:11-cv-11786-JLT Document 1

Filed 10/07/11 Page 3 of 7

over Star is proper in that Star alleges copyright infringement in this district and Star can be found in the Commonwealth. 12. Venue is proper pursuant to 28 U.S.C. 1391 and 28 U.S.C. 1400.

COUNT I DECLARATORY JUDGMENT FOR NON-INFRINGMENT 13. Star alleges the fabric design shown below is registered with the United

States Copyright Office under Registration No. VA 1-632-961 (work product design code 606072):

Case 1:11-cv-11786-JLT Document 1

Filed 10/07/11 Page 4 of 7

14.

On September 14, 2011, Star sent a letter to Potpourri accusing Potpourri

of infringing Star's alleged copyright via a garment sold in Potpourri's NorthStyle catalogue as follows:

Case 1:11-cv-11786-JLT Document 1

Filed 10/07/11 Page 5 of 7

15.

Star demands that Potpourri immediately cease and desist from all sales of

this garment, accuses Potpourri of copyright infringement, and makes demands that if not met would result in a complaint filed against Potpourri by Star. 16. Potpourri contends that Star's claim of copyright infringement is without

merit and that Potpourri does not infringe upon any valid copyright owned by Star. 17. An actual controversy has arisen and now exists between Potpourri and

Star concerning Star's claim that Potpourri has infringed and has continued to infringe upon the alleged copyright rights of Star. 18. Potpourri desires a judicial determination of its rights and duties in a

judgment declaring that: a) copyright does not subsist in Star's alleged fabric design, b) any registration purported to confer copyright protection on Star's fabric design is invalid, and c) Potpourri has not infringed upon any Star's alleged copyright rights. 19. A judicial determination is necessary and appropriate at this time under

the circumstances in order for the parties to ascertain their rights and obligations. 20. Further, there is no actionable similarity between Star's alleged

copyrighted fabric design and the garment sold by Potpourri. 21. Upon information and belief, Star's alleged copyrighted fabric design is

unprotectable useful article and therefore is not copyrightable pursuant to 17 U.S.C. 101 and 17 U.S.C. 102. 22. Upon information and belief, Star's alleged copyrighted fabric design

embodies non-protectable ideas and contains non-protectable expression. 23. Upon information and belief, Star's alleged copyrighted fabric design is

not original and thus not protectable.

Case 1:11-cv-11786-JLT Document 1

Filed 10/07/11 Page 6 of 7

24. design. 25. 26. invalid. 27.

Potpourri is not engaged in any actionable copying of Star's alleged fabric

Upon information and belief, Star is engaged in copyright misuse. Upon information and belief, Star's alleged copyright registration is

Upon information and belief, Star has not suffered any actionable or

recoverable damages. 28. Upon information and belief, Star will continue to wrongfully assert

infringement by Potpourri unless Star is enjoined by this court.

PRAYERS FOR RELIEF WHEREFORE, the plaintiff Potpourri prays for judgment in its favor against defendant Star as follows: 1. For declaratory judgment declaring that a copyright does not exist in Star's

alleged fabric design. 2. Any registration which purports to confer copyright protection upon Star's

fabric design is invalid. 3. rights. 4. for costs. For an award of attorneys fees pursuant to 505 of the Copyright Act and Plaintiff Potpourri has not infringed upon any of Star's alleged copyright

Case 1:11-cv-11786-JLT Document 1

Filed 10/07/11 Page 7 of 7

5.

That Potpourri be awarded the costs of this suit and reasonable attorney

fees, in an amount to be determined by this court provided pursuant to 17 U.S.C. 505 and 17 U.S.C. 1117. 6. That Defendant Star be enjoined and restrained from all further charges of

infringement, actions, enforcement or suit against Potpourri or anyone in privity with Potpourri including Potpourri's customers and prospective customers. 7. That Potpourri be granted such other and further relief as this court may

deem proper and just.

THE PLAINTIFF HEREBY DEMANDS A TRIAL BY JURY

Respectfully submitted, By: the Attorneys for Potpourri Group, Inc.

DATE: October 7, 2011 By:

/s/ Kirk Teska Kirk Teska BBO 559,192 Iandiorio Teska & Coleman 255 Bear Hill Road Waltham, MA 02451 TEL: (781) 890-5678 FAX: (781) 890-1150